Patterico's Pontifications

1/10/2018

Outrageous: Clinton Appointee Blocks Parts of Trump’s Order Undoing DACA

Filed under: General — Patterico @ 8:30 am

This is truly absurd. A federal judge appointed by Bill Clinton has issued an order blocking enforcement of portions of President Trump’s order undoing DACA (Deferred Action for Childhood Arrivals), Obama’s name for amnesty for “DREAMers.” Trump’s entire order is not blocked, as the administration need not process new applications, but those who previously submitted applications are allowed to renew them pending the outcome of the litigation:

A federal judge on Tuesday night ordered the Trump administration to revive part of the program that protected children illegally brought to the United States by their parents from being deported, calling the administration’s abrupt decision to end the program last year “arbitrary” and “capricious.”

. . . .

Partly granting a request from the University of California, U.S. District Judge William Alsup issued a preliminary injunction Tuesday night in San Francisco ordering DHS to resume accepting renewal applications from people who are already protected under DACA while challenges to the September order work their way through the courts. But DHS doesn’t have to accept new applications, he ruled.

Alsup, who was nominated to the court by President Bill Clinton, scolded DHS for having presented no analysis of the impact its order would have on the almost 700,000 young people “who had come to rely on DACA to live and to work in this country.”

This decision is outrageous. Immigration is Congress’s business. Obama overstepped his authority in issuing a blanket amnesty to a group of people under the guise of prosecutorial discretion. Trump had every right to undo that decision and return the issue to Congress, where it belongs.

The decision is here, and it makes no sense at all. In essence, the judge holds that the administration wrongly decided that Obama’s DACA order was illegal, and this decision was “arbitrary and capricious.” One aspect of the decision that has gotten attention from the press: it cites Trump tweets in its reasoning.

On the night of the rescission, President Trump called upon Congress specifically to enact DACA, tweeting, “Congress now has 6 months to legalize DACA (something the Obama Administration was unable to do). If they can’t, I will revisit this issue!” During an interview earlier in 2017, President Trump had stated “we are not after the dreamers, we are after the criminals” and that “the dreamers should rest easy” (App. 1852–53, 1958).

The easy and lazy reaction to this is that Trump is undisciplined and issues poorly thought-out statements that put his executive actions in legal jeopardy. That is often true, but here, there is really nothing in these statements that is objectionable. Trump’s voicing support for the plight of DREAMers is politics, and evidently something he believes. That does not mean that, as President, he is stuck with an illegal executive way of handling it. Nor does it mean that he believes that a Congressional solution would necessarily track every jot and tittle of Obama’s illegal executive order.

As a side note: many will express frustration with the courts undoing every executive order of Trump’s, harkening back to the reversals of Trump’s immigration order affecting Muslim countries. The difference there is that Trump was arguably impinging on Congress’s role to determine who enters the nation; Trump’s authority to make those decisions on his own is circumscribed by statute, as the primary authority rests with Congress. Here, by contrast, Trump’s order undoing DACA returned the DREAMers issue back to Congress, where it belongs.

I hope that this order is swiftly appealed and reversed. It’s a naked power grab by the courts and has no basis in law.

[Cross-posted at RedState and The Jury Talks Back.]

313 Responses to “Outrageous: Clinton Appointee Blocks Parts of Trump’s Order Undoing DACA”

  1. failmerica has a laughingstock justice system

    happyfeet (28a91b)

  2. This whole mess could’ve been easily avoided had we not nominated/elected Trump, in which case DACA would be safely enshrined by now.

    random viking (616c92)

  3. Given the recent news, I should say “safely enshrined on day one with nothing obtained in return.”

    random viking (616c92)

  4. Can’t get too strident about resistant activist courts or it’s Pot versus Kettle. Don’t be fooled by the same We’ll do it in a very nice way…lovingly plethora of Lies.

    Wouldn’t trust him with a street taco.

    Admiral Ben Bunsen Burner (a70717)

  5. I think the Judge certified his order for immediate appeal.

    However, its going to the 9th Cir. and we know many of the Judges there do not feel at all constrained by arguments that certain issues are uniquely executive in nature.

    This kind of Order, however, comes close to leading an executive to the old saying “That’s his order, let him enforce it.”

    The Admin can comply with the Order by “processing” the renewals submitted by those who have previously registered, but just not act on them. Then wait for a district court judge to take then next step of “Ordering” the Executive to enter decisions in a certain fashion.

    shipwreckedcrew (56b591)

  6. Two caveats are in order. First, many intelligent people have conservative values, and rationally support the Republican Party. Second, while Trump’s lack of mental aptitude may be similar to that of previous Republican leaders in kind, it is very different in degree. That said, Trump’s flamboyant ignorance and disdain for intellectual standards are very much in keeping with modern conservative politics.

    http://nymag.com/daily/intelligencer/2018/01/why-conservatives-love-dumb-presidents.html

    Admiral Ben Bunsen Burner (a70717)

  7. Wonder what took this pantsuit loving commie so long?

    mg (8cbc69)

  8. We may have been hasty in our assessments of Matthew Petersen regarding his fitness for the DC District Court, and even more so prior to that regarding Roy Moore’s disobedience of the federal court orders in the Ten Commandments and gay marriage cases. Compared to blue-slip specials like Judge William Alsup, they’re Solomons.

    nk (dbc370)

  9. A tally no, he wee enshrine the language from the 2016 omnibus, I know they have to pass it in order to find what’s in it.

    narciso (d1f714)

  10. Another reason to celebrate Madame Server being prevented from stacking the Federal courts with constitution-hating activists.

    Good post.

    harkin (8256c3)

  11. Tell the criminal aliens to reapply for DACA, get their info, then deport them. Only way to enforce the Executive’s constitutional authority.

    NJRob (b00189)

  12. I agree with and adopt our host’s views about this ruling.

    I also agree with Trump defenders that he’s often subject to misleading and bad-faith news reporting, and the WSJ’s report on this ruling is a clear example of twisting facts to try to make the POTUS look stupid (emphasis mine):

    President Donald Trump lashed out at the federal courts Wednesday morning over an injunction temporarily barring the cancellation of an Obama-era program that shielded hundreds of thousands of young undocumented immigrants from deportation.

    “It just shows everyone how broken and unfair our Court System is when the opposing side in a case (such as DACA) always runs to the 9th Circuit and almost always wins before being reversed by higher courts,” Mr. Trump said on Twitter, referring to the Deferred Action for Childhood Arrivals program.

    ….

    The action prompted numerous lawsuits challenging Mr. Trump’s ruling. Late Tuesday, San Francisco-based U.S. District Judge William Alsup, who doesn’t sit on the 9th Circuit Court of Appeals, temporarily blocked the ending of the program in a 49-page ruling….

    That bit of supposed news reporting prompted me to leave this comment at the WSJ:

    Re this sentence and media bias:

    Late Tuesday, San Francisco-based U.S. District Judge William Alsup, who doesn’t sit on the 9th Circuit Court of Appeals, temporarily blocked the ending of the program in a 49-page ruling.

    District Judge Alsup, like all district judges, sits on the district court bench. But his decisions are appealed to the Ninth Circuit.

    When one is forum shopping — which is what Trump was criticizing — one considers not only the trial court but the intermediate appellate court. When they sued in the Northern District of California, these plaintiffs had a good chance of drawing a progressive Democrat appointee like Alsup. But they have a 100% chance — a CERTAINTY — that all appeals would go to the Ninth Circuit.

    These reporters or their editors misleadingly crafted this sentence to make Trump seem mistaken or stupid. In fact the reporters are spinning the facts and deliberately ignoring the President’s very accurate point. Shame on the WSJ for this fake news.

    I emailed my comment to the two reporters listed for the story (due props to WSJ for providing those email addresses), and added these two sentences to the end: “This is first-class chicken-sh!ttery. It’s why the most of the public hates most of the mainstream media.”

    But almost simultaneously, I heard the POTUS on TV, live, insisting that the libel laws are terrible and that “we’re going to take a real look at those.” Gee, that’s a fine idea, Mr. President, since you’ve made this same empty threat dozens of times, going back even before the time you became a presidential candidate. Take a real look at that situation, and you’ll find that (1) defamation laws are created by the states, not the federal government, and neither you nor Congress has the constitutional authority or power to change them, and (2) the only power the federal government has over state defamation laws are if they conflict with the U.S. Constitution, which in the First Amendment context has prompted the SCOTUS to limit, not loosen or expand, the reach of state defamation laws in the context of public debate over public figures that is protected by the First Amendment. In other words, if Trump ever did make good his promise to “take a real look,” he’ll find there’s not a damned thing he can do about state defamation laws, except at the margins and on a multi-decade timeframe by choosing good SCOTUS appointees.

    So yes, it’s simultaneously true, as proved again today, that the press unfairly attacks Trump, and that Trump is indeed deeply ignorant of our constitutional government, federalism, and the civil rights protected by the Bill of Rights.

    Beldar (fa637a)

  13. Now the supreme court chose not to take up judge hanens opinion,
    so what’s the holdup.

    narciso (d1f714)

  14. True but they have evolved from Sullivan, which made a necessary cirumstance overbroad.

    I noted that fusions Russian expert Edward baumgartner is certifiable

    narciso (d1f714)

  15. Well said, Beldar. Trump and the media are equally clueless.

    DRJ (15874d)

  16. The law is settled so as I say what is the matter?

    narciso (d1f714)

  17. Trump and the media are equally clueless.

    Balderdash..

    This is the equivalency that got us Trump. Better than Hillary indeed

    Admiral Ben Bunsen Burner (a70717)

  18. Where does Trump indicate that the libel laws are Federal laws?

    I listened to it as well and he states that they will be looked at. Is the Executive not allowed to look at State laws?

    BuDuh (fc15db)

  19. @ narciso, re the evolution of NYT v. Sullivan: You’re right that since it was announced, the federal courts have indeed tinkered at the margins with the concept of “public figures” with respect to whom the First Amendment requires limitations on the rights that otherwise exist under state law in favor of defamation plaintiffs. But the main evolution has been the growth of the doctrine of the “limited-purpose public figure” in later cases like Gertz v. Robert Welch, Inc. (1974). And that is, in fact, a move to limit federal interference, with the effect of empowering more state-law defamation plaintiffs. Or stated another way, fewer defamation plaintiffs are going to be thrown out of court on grounds that they are “public figures” and that the First Amendment therefore privileges defamatory false statements made about them in public unless those false statements were made with “actual malice” as defined in NYT v. Sullivan. Someone like Trump himself, though, is the extreme opposite of a private citizen, and nowhere close to qualifying as a “limited-purpose public figure.”

    What Trump really wants is for the SCOTUS to overrule NYT v. Sullivan outright. That ain’t gonna happen, and I would bet three toes off either foot that not a single Justice currently on the SCOTUS, including Justice Gorsuch, would vote in favor of that.

    Beldar (fa637a)

  20. @ BuDuh: If all he’s doing is “looking,” sure, you’re right.

    That’s not what Trump meant. If you want to pretend that he meant, “I’m going to learn enough about this so that I can realize that there’s nothing I can do about state defamation laws,” then fine. But that’s silly.

    Beldar (fa637a)

  21. Maybe the Derp, Derp State was tired of our complaining about our Executives and decided to give us someone who really stinks..

    Admiral Ben Bunsen Burner (a70717)

  22. 12 — I guess Trump missed that part of his first year of law school.

    shipwreckedcrew (56b591)

  23. First there would have to be a claim, then the courts would examine, and then they would have to have the mindset. If the dossier had been admitted through the federal procedures for instance. But the main hearings are happening in london, where libel laws are severe.

    narciso (d1f714)

  24. What happened to State minimum drinking age laws in the 80s, Beldar?
    If, prior to the National Minimum Drinking Age Act, the Executive said “we are going to look into the nation’s minimum drinking age laws” it would be obvious that they could only mean the State laws.

    The only reason it can’t mean that now is because Trump is ignorant of the Constitution?

    BuDuh (fc15db)

  25. Much of this is happening across the pond

    https://www.politico.com/blogs/under-the-radar/2017/08/15/judge-denies-trump-spy-libel-241667

    Cohen’s lawsuit is another matter.

    narciso (d1f714)

  26. Could Trump institute a Deferred Remittance Of Judge’s And Law Clerk’s Salaries (DROJALCS) policy by executive order to the Treasury Department, do you think?

    nk (dbc370)

  27. The Hill…’wouldn’t it be nice…?

    Trump also took aim at the libel laws when asked about the book over the weekend at Camp David, saying it “would be very helpful” to have tougher laws to push back against the book.

    Admiral Ben Bunsen Burner (a70717)

  28. Trump is Presifent. Being able to grasp basic concepts about the Constitution and the law is part of his job, which is why he took an oath to preserve, protect, and defend the Constitution. A President has attorneys and advisers to help him understand what those concepts mean. Ignorance of the law is no excuse for anyone but especially not for a Presidrnt, unless his name is Drumpf.

    DRJ (15874d)

  29. Laws custom made for a proper fit!

    FIAT! FOR SALE..low miles, not much headroom.

    Admiral Ben Bunsen Burner (a70717)

  30. What part of his statement on libel laws shows ignorance of the Constitution, DrJ?

    The exact quote would be handy.

    BuDuh (fc15db)

  31. Now how could I pass a Law that allowed me to break into waiting lines?

    Admiral Ben Bunsen Burner (a70717)

  32. Not refuse to pay them — even Congress couldn’t do that. Just defer paying them until they retired, resigned or otherwise left office.

    nk (dbc370)

  33. Today also reaffirms my affection for the comment blocker script for this blog, and my intention to use it more consistently in the future. A deviation from that policy led me to read this:

    12 — I guess Trump missed that part of his first year of law school.

    shipwreckedcrew (56b591) — 1/10/2018 @ 10:14 am

    There’s another example of first-class chicken-sh!ttery. swc, we both know you know I’m right about the state of the law. Your comment is an attempt to excuse Trump’s stupidity on grounds that he’s not a lawyer.

    And that’s true. He’s not a lawyer. But he is someone who’s repeatedly, many dozens of times, instructed his lawyers to send BS cease-and-desist letters trying to intimidate people from discussing him and his foolishness in public. Indeed, even though he’s not a lawyer, Donald Trump has had the experience as a litigant of having his own bogus lawsuits thrown out of court on exactly these grounds! And not even most lawyers have had that vivid personal experience to teach them about NYT v. Sullivan.

    Nevertheless, in order to defend him in all circumstances and at all costs of intellectual honesty, you respond with a bit of snark to my criticism of him (whose substance you can’t dispute) by pointing out that he’s not a lawyer. To that, I say that his oath requires him to preserve, protect, and defend the Constitution and laws of the United States, and that should oblige him to get a clue about those laws if he doesn’t already have one.

    You also know that, and you know that he has an attorney general, a WH counsel, and a host of private lawyers who could and should help him get that clue. But you just can’t help yourself from taking a shot at my comment anyway.

    That’s why I’ve given up on you as someone with whom I can ever have a meaningful, civil discussion, and why I’ve put you in the category of full-bore Trumpkins who have forfeited my respect, whose writings here I don’t want to ever again waste my time reading.

    Resolved: Use the blocker script more consistently.

    Beldar (fa637a)

  34. Yeah, that Trump is sure dumb. Only he’s POTUS and you ain’t, he doesn’t drink he’s got tons more money, buildings, airplanes and helicopters, golf course country clubs, and penthouses than you.

    His wife is prettier, his kids are sober and accomplished, he’s respected by friends and enemies around the world, he’s rebuilding America after the ravages of Obama’s destructive criminal reign, and he saved our nation from the evil clutches of the most corrupt, money grubbing, bloodthirsty, two-faced, commie ghoul ever to threaten the peace, freedom, and prosperity of the American people.

    So, what’s on your resume, Huckleberry?

    ropelight (c051a9)

  35. (And as so often, I find when I hit “comment” that DRJ has already written what I intended to say (#29), just more succinctly.)

    Beldar (fa637a)

  36. Jeff Bezos beats Trump on all those things. So do between 150 and 250 other billionaires, the number depending on how Trump feels that particular day.

    nk (dbc370)

  37. So one wonders where allsup or non kosinski judge can go with this?

    narciso (d1f714)

  38. I have a problem, and have had since the Reagan administration, about “executive orders” in general.

    Not for an order by the executive to his underlings regarding interpreting or prioritizing execution of the law. That can be problematic as well — “OK guys, put pot prosecutions down on the list behind making a case against pedestrians along the interstate…” — but is clearly what an executive or manager or senior administrator is empowered to do and must do.

    My problem is the executive making POLICY decisions: “OK guys, publish letters informing the locals that we aren’t ever going to prosecute a pot dealer ever again. If they want prosecutions, their elected officers can take the voter’s ire. If they want pot, instead, their legislators can figure out the trade-offs. Leave us clear out of it.”

    EVEN IF this makes sense, this is clearly encroachment of an executive power upon a legislative power.

    There is a place for executive orders to get things done quickly. But in the rare cases such a situation pertains, the responsive order should have no force beyond the next Congressional election. The pressure SHOULD be on legislators, and prospective replacement candidates, to make policy priorities a matter for the voters to discuss and apply appropriately. And if the Congress in session after the executive order lapses can’t act, then the laws and powers in place before the order revert.

    Now, ask me about how I feel about “Declarations of War” versus “Authorizations for the Use of Military Force” as applied to Libya, Iran, Syria… Ask me how I feel about Truman, Korea, and the “United Nations Participation Act”

    pouncer (915d55)

  39. This is the fellow i was referring to:
    https://mobile.twitter.com/ebaumgar73/status/950441519034650626?p=v

    narciso (d1f714)

  40. Trump, who has claimed that Obama is not a citizen and Ted Cruz’s dad was involved in the Kennedy assassination wants to change libel laws.

    Ok.

    Davethulhu (fab944)

  41. Apparent 790,000 were incorporated into daca, even after judge
    Hanens injunction.

    narciso (d1f714)

  42. So does the law mean anything.

    narciso (d1f714)

  43. jeff bezos being the fascist turdlord whose biggest contribution to the culture is a system of reading books what can’t be shared with friends

    happyfeet (28a91b)

  44. I guess there is no exact quote of Trump’s libel statement today that suggests he is ignorant of the Constitution.

    I check back later to see if one surfaces.

    BuDuh (fc15db)

  45. 34 — you are absolutely right about the state of the law.

    But you impose on the Office of the President an obligation to understand aspects of the law beyond that of a typical layman.

    Maybe we should only allow lawyers to run for President. That might solve the problem you have identified.

    But then we’d have to decide what areas of the law a President must “really really” understand, and what areas would be ok for a President to only have a passing familiarity with.

    Should the President — since he’s charged with all matters of criminal prosecution — understand all the 5th and 6th Amendment trial rights?? How deep does that understanding need to be?

    Is it enough to simply understand what Brady v. Maryland requires, or should he also know the manner in which Kyles v. Whitely extended the Brady obligation?

    Its easy for you — or any lawyer — to criticize Trump when me misstates some legal principle, as a layman is going to be prone to do.

    That doesn’t mean he is an ignoramus on the general topic.

    The fact is that the Federal Government is so large and involved in so many complicated and detailed endeavors, no single person is ever going to be conversant on every issue — whether you limit to what you want to describe as “constitutional issues” or not. There are Constitutional implications of one kind or another in THOUSANDS of things gov’t officials do everyday. You think the President should be literate and conversant on all of them?

    Or do you just get to decide where the line is drawn?

    shipwreckedcrew (56b591)

  46. lawyers are tools

    people just have to know when and how to use them

    and President Trump has a better understanding of this than most that’s for sure

    happyfeet (28a91b)

  47. BuDuh:

    What part of his statement on libel laws shows ignorance of the Constitution, DrJ?

    First, its DRJ not DrJ.

    Second, if you are sincerely interested in the topic, try this.

    DRJ (15874d)

  48. 34 — its not the job of the AG, WH Counsel, or his private lawyers to tutor him on legal niceties to an extent that satisfies you. They have jobs to do on a daily basis that involves the functioning of the government.

    shipwreckedcrew (56b591)

  49. Given that his only obligation as President is to preserve, protect and defend the Constitution and that he has a staff of lawyers to advise him on what it means, swc, I think it’s entirely reasonable to expect Presidents should be literate and conversant on the Constitution and its basic provisions. At a minimum.

    DRJ (15874d)

  50. I forget is Steve miller an unperson this wwek

    narciso (d1f714)

  51. My GUESS would be that Trump has a good working understanding — probably from Fox News!!!! — that the libel laws in Great Britain are much different than they are in the US, and its much easier to seek and win legal recourse in Great Britain for false and defamatory publications.

    Great Britain and the US have a shared legal tradition. So a layman might quite reasonably ask “Why can’t the US libel laws be more like the libel laws in Great Britain?” without being called an ignoramus by anti-Trumpers.

    Why is it a sign that he is “deeply ignorant of our constitutional government”.

    If pressed, I’m quite certain I could pose for you 20 questions about constitutional law it would take your hours to research the answers to.

    Does that make you “deeply ignorant of our constitutional government”?

    shipwreckedcrew (56b591)

  52. So no answer DRJ?

    My question was pretty specific.

    BuDuh (fc15db)

  53. I would be ignorant only if I refused to learn.

    DRJ (15874d)

  54. I did answer you, BuDuh. Comment 48.

    DRJ (15874d)

  55. You answered with a topic from May of last year. That doesn’t address the statement from today. Maybe Trump isn’t ignorant because he learned something since then. Is that possible?

    Please address today’s statement.

    BuDuh (fc15db)

  56. Perhaps you aren’t willing to click the link I provided. If so, the short answer is as Beldar said above. The Constitution does not give Presidents options to “open up” the libel laws. Libel and slander are state law causes of action, and there are no federal statutes that generally regulate libel or slander. The only options are to change long-standing Supreme Court law or a Constitutional amendment, and neither is something Trump can do alone.

    DRJ (15874d)

  57. so how can daca be legal as a matter of law, after hanen’s permanent injunction?

    narciso (d1f714)

  58. Perhaps I did read your link. That is how I knew it was dated.

    BuDuh (fc15db)

  59. Trump said today:

    “We’re going to take a strong look at our country’s libel laws,” the president told reporters during a meeting of his cabinet at the White House. He went on to call the current U.S. libel laws “a sham and a disgrace and do not represent American values or American fairness, so we’re gonna take a strong look at that.”

    Trump did not elaborate on how he might undertake the effort, but simply said “we’re going to take a very, very strong look at it.”

    Same old bluster. How does this show any change in his understanding of libel or the Constitution?

    DRJ (15874d)

  60. Does this really require a link to someone else’s homework?

    I am asking you to tell me what you found to be the quotable portion of Trump’s statement that convinces you that he is ignorant of the Constitution. And will that quote be so convincing when read with his entire statement?

    BuDuh (fc15db)

  61. DRJ — I happen to have a friend who is a former colleague who just so happened to be an Associate White House Counsel for the last 18 months of the Bush Presidency. They do not spend their days tutoring the President on nuances of the law. The WH Counsel’s office deals a lot with personnel matters across the gov’t – and I’m pretty certain this particular WH Counsel’s office is neck-deep in vetting and working for confirmation of hundreds if not thousands of political appointees who have not yet been confirmed. They also referee policy disputes and turf battles between various departments and agencies only legal grounds. Again, in a new administration where there remain many holdovers and loyalists from the previous Administration, that is likely an all consuming process.

    Its not up to you, me, or Beldar to decide that they aren’t doing their job without having a good understanding of what their job actually entails.

    shipwreckedcrew (56b591)

  62. The only time Trump talks about libel is when someone criticizes him.

    DRJ (15874d)

  63. So what?

    How does his statement reflect ignorance of the Constitution?

    BuDuh (fc15db)

  64. The role of the White House Counsel:

    “Everyday the White House Counsel has to say ‘No’ to the President, to explain that either he can’t do what he wants to do or he has to do it differently.”

    DRJ (15874d)

  65. Saying he wants to change something he has no Constitutional power to change is ignorant.

    DRJ (15874d)

  66. which seems to happen at least once a week, judging by cnn and abc’s latest exercises,

    narciso (d1f714)

  67. 66 — and I’m 100% sure that is view of Wolff’s book is that its full of falsehoods.

    And falsehoods can be libelous.

    And if Wolff published this book in Britain about members of the British government, he would likely find himself in Court defending himself against a libel suit under much less friendly provisions that is true of authors in US courts.

    So why is it a sign of “ignorance” for Trump to question the nature and reach of libel laws in the US as they have developed over time?

    shipwreckedcrew (56b591)

  68. “his” view.

    shipwreckedcrew (56b591)

  69. If that is the counsel’s role, at least according to some Federalist Society guy, maybe it explains why Trump read the statement that you don’t like.

    It was written and said in such a way that finding the portion that is ignorant of the Constitution is impossible to find.

    BuDuh (fc15db)

  70. narciso, I don’t know but I assume Hanen’s decision, as affirmed by the 5th Circuit and a 4-4 SCOTUS per curiam, is good law in the 5th Circuit states but in limbo elsewhere.

    DRJ (15874d)


  71. 69.Saying he wants to change something he has no Constitutional power to change is ignorant.

    Really? You never said you wanted to change something you had no power to change?

    Rev.Hoagie (6bbda7)

  72. I was under the impression the Bill of Rights protects speech and the press because we didn’t like the British approach.

    DRJ (15874d)

  73. Free speech lets us pontificate, Hoagie, but public officials like Presidents have to exercise care when they are speaking as Presidents. He can rant to his heart’s content in private with his family and staff.

    DRJ (15874d)

  74. What is also ridiculous about that statement, Rev. Hoagie, is that is exactly what happens in every Executive since the founding. Presidents always talk about what law or lack of law the country needs even though lawmaking is the responsibility of The Legislature.

    Have all the stump speeches since Washington’s time been nothing more than a show of ignorance of the Constitution?

    BuDuh (fc15db)

  75. He said repeatedly “We need” to look at libel laws. The reference is to legislators and the Exec. Why do you assume he thinks there is some functional role of the President in such a process beyond use of the “bully pulpit”?

    While federal legislators don’t directly make changes to state laws, do you doubt that federal legislators carry outsized weight with their opinions back in their home states? You think the Senators from Iowa don’t have the ability to influence the policy agenda of Iowa state legislators?

    There is no question that as a private citizen Trump saw the courts as a vehicle through which he could advance his personal interests — which makes him far from unique.

    There is also no question that Trump has placed himself — quite intentionally and voluntarily — squarely in the category of being a “public figure” under the Sullivan standard.

    But the Sullivan standard is a court-established standard.

    And Beldar may be correct that there’s not a single vote on the Supreme Court to change Sullivan. But there is no doubt that the Sullivan standard has led to some egregious outcomes over the years — legally correct under the standard, but factually quite unfair.

    There were only 2 dissenting votes in the Dred Scott case.

    Times change.

    shipwreckedcrew (56b591)

  76. We didn’t like it when Obama bullied the Court. Why should we like Trump doing it?

    DRJ (15874d)

  77. President Trump has a lot of good ideas about reforms.

    happyfeet (28a91b)

  78. Now Trump is bullying the court?

    Was that in today’s statement as well?

    BuDuh (fc15db)

  79. Who said he’s bullying the Court?? He’s talking about a legislative fix. Courts enforce laws as passed by the legislature.

    Would newly written libel laws survive a court challenge based on Sullivan and other precedent? Who knows? We don’t know what the changes might be.

    shipwreckedcrew (56b591)

  80. The people seemed to prefer Trump’s bluster to any sort of legal wankery, as he defeated the ultimate legal wanker who no doubt could school him on libel law.

    If Trump actually begins setting the wheels in motion to dismantle established libel law, I would get concerned. As it is, it’s just classic fretting from the anti-Trump crowd about nothing.

    random viking (616c92)

  81. Der iz a sale on dee wall, señor. Only 345 billion Mexican pesos.

    DCSCA (797bc0)

  82. I agree it’s just talk but he has the bully pulpit of the Presidency. Are Presidential ideas supposed to mean something or not?

    DRJ (15874d)

  83. Several people have said to ignore what Trump says and only pay attention to what he does. Where was that when Obama was President?

    DRJ (15874d)

  84. President Trump is everything

    happyfeet (28a91b)

  85. He’s treating this as a violation of the Administrative Perrocedures Act.

    The problem is that, regardless of its enormous human impact, both what President Obama did and what President Trump did, with their detailed instructions, are highly irregular, and don’t amount actually to regulations.

    President Obama gave all sorts of conditions for qualifying for DACA, and President Trump terminated it but with an arbitrary time limit.

    Predident Obama limited it to people present in the United States before 2007, but also at least 15 when they applied – the result is an older child taken to the United States in 2003 is covered, but not a child who was then a month old baby. It also had an arbitrary age limit of 31. I suppose Obama thought they’d be more sympathetic.

    Sammy Finkelman (02a146)

  86. Another topic — Molly Hemingway has an article up today on “Takeaways from Fusion GPS Transcript.”

    She includes one that’s been out there for a while, but she synthesizes it well.

    Remember that Fusion GPS founder, and the guy who hired Steele, has a long-standing interest in Russia, the Russian Police State, and Russian kleptocracy. I’m not suggesting he’s wrong about any of that.

    But this interest, which he knew was shared by Steele whom he had met in the past while doing reporting on Russian matters as a journalist, animated his interest in Trump’s business history in Russia.

    In his testimony he goes over the Trump Tower meeting between DTJ, Manafort, and Kushner on the one hand, and the Russian female lawyer and another Russian individual on the other side. Simpson talks about how the interest of the Trump campaign in getting dirt on Clinton from the Russians warranted investigation because the effort by Russian operatives to introduce that information into the election season was clearly an effort by Russia to influence the outcome of the election.

    But this is the same guy who then lionizes Steele’s collection of dirt on Trump from the Russians where the intended recipient is going to be the Clinton campaign, and basically applauds the Russian sources who were brave enough to offer up the details to Steele, which he then took to the FBI out of fear that Trump was compromised.

    Russian sources offering dirt on Trump about Clinton — dirty bad people trying to influence election.

    Russian sources offering dirt to Clinton about Trump — brave persons who put their safety at risk to provide information to expose the Russian police state and their control of Trump.

    LOL.

    shipwreckedcrew (56b591)

  87. How many of us — lawyers or non-lawyers — have had the experience of being the plaintiff in a major defamation lawsuit — one in which we gave a long video deposition — in which our defamation claims have been thrown out of court based on NYT v. Sullivan, with that ruling then affirmed by a unanimous appellate court?

    Our POTUS had that exact experience, in Trump v. O’Brien, 29 A.3d 1090, 1103 (N.J. App. 2011), which held:

    As a consequence of the foregoing, we find no triable issue as to the existence of actual malice [under NYT v. Sullivan] in this matter, and for that reason, affirm summary judgment for O’Brien. Absent actual malice on his part, respondeat superior liability cannot arise. Thus we find that summary judgment was also properly granted to the publishing defendants.

    There are ample examples of Trump discussing — complaining about — this case in public ever since. No, he’s not a lawyer, but his direct personal experience with NYT v. Sullivan, and with the limits it imposes as a matter of federal constitutional law upon state libel claims, is obvious to anyone with an ounce of intellectual honesty.

    Beldar (fa637a)

  88. @89. ‘Everything’ is right, Mr. Feet! It is January 10 and our Captain has helmed every news cycle of every day of 2018 so far! He is the center of our Universe; the Master of Our Domain!

    DCSCA (797bc0)

  89. Maybe that is why his statement today was carefully crafted to not say anything that shows ignorance of the Constitution.

    At least there is nothing that anyone seems to be able to quote.

    BuDuh (fc15db)

  90. 87. I agree it’s just talk but he has the bully pulpit of the Presidency…

    Funny, DRJ, but when reading your post, immediately thought of that old AT luggage commercial where the gorilla throws the suitcase around in the cage.

    DCSCA (797bc0)

  91. Mr. Feet!! Our Captain is showing patriotic style; at his presser, the color of his red tie matches the stripes in the flags behind him! His shirt, the white, but does his suit blend w/t field of blue too? No Sloppy Steve be he! He is our Yankee Doodle Dandy!

    DCSCA (797bc0)

  92. Several people have said to ignore what Trump says and only pay attention to what he does. Where was that when Obama was President?

    I guess that’s maybe the one disadvantage of being a politician who is legally trained. People can, and should, take what you say on legal matters seriously. And, experience proved that to be true.

    random viking (616c92)

  93. If DACA were a regulation the judge would be right about what he ruled.

    But none of this – neither the institution of DACA, nor its delayed repeal, are anything but arbitrary exercises of power, unsupported by any law or legal opinion. They affect people much more than most regulations, but they have no standing in law. Not even the any version of the pardon power. The power to parole many people was actually taken away by Congress.

    What we see with immigration law, is what could happen in the absence of any Bill of Rights.

    Now my opinion is, the federal government has no power to deport people in the first place if a state objects.

    Sammy Finkelman (02a146)

  94. Trump has a lot of experience with libel law.

    DRJ (15874d)

  95. Beldar

    At one point we discussed patent trolls. Could a state legislature and judiciary create favorable conditions for libel trolls?

    Pinandpuller (ca8297)

  96. There is no “legislative fix” to NYT v. Sullivan. You can change it in exactly two ways: Amend the Constitution (specifically, the First Amendment) pursuant to Article V; or appoint enough SCOTUS Justices to overrule that decision.

    Beldar (fa637a)

  97. From my last link:

    Trump later complained about the dismissal of the lawsuit, displaying his misunderstanding of the law of public figure and actual malice. “Essentially, the judge just said, ‘Trump is too famous,'” he told the Atlantic magazine in 2013. “‘He’s so famous that you’re allowed to say anything you want about him.'” No wonder Trump wants to change libel law; he doesn’t understand it.

    DRJ (15874d)

  98. Oh.. a 2013 quote.

    Still nothing on what he said today.

    BuDuh (fc15db)

  99. I’m not unconvinced he misunderstands libel law, but he clearly doesn’t like what it does to him because he doesn’t like criticism.

    DRJ (15874d)

  100. yes yes! Our Yankee Doodle do or die!

    happyfeet (28a91b)

  101. I’m not convinced …

    DRJ (15874d)

  102. And I’m not convincing BuDuh, but that’s fine. Thank you for the chance to share my thoughts with others, BuDuh. You were a big help.

    DRJ (15874d)

  103. No, he’s not a lawyer, but his direct personal experience with NYT v. Sullivan, and with the limits it imposes as a matter of federal constitutional law upon state libel claims, is obvious to anyone with an ounce of intellectual honesty.

    [Said in voice of mechanic] I think I found your problem

    Patterico (fcc13e)

  104. Anytime you share those types of thoughts I think it does help indeed.

    BuDuh (fc15db)

  105. So outside of the 5th circuit, it is still active.

    narciso (d1f714)

  106. @50 DRJ

    I’d settle for federal judges who understand and defend the Constitution at this point.

    Pinandpuller (ca8297)

  107. There are ample examples of Trump discussing — complaining about — this case in public ever since. No, he’s not a lawyer, but his direct personal experience with NYT v. Sullivan, and with the limits it imposes as a matter of federal constitutional law upon state libel claims, is obvious to anyone with an ounce of intellectual honesty.

    Some years ago, I was involved in a legal dispute regarding an estate. I have talked about that case many times since with others, but I still know virtually nothing about estate law and the case history behind it. I had a lawyer handling all that — as, I imagine, so does Trump. I’m guessing he has an entire legal team, in fact. Just speaking as someone who is intellectually dishonest, mind you… so discount it all.

    random viking (616c92)

  108. if people would just resolve not to do defamation on President Trump there’s a lot of this what just wouldn’t be an issue

    choices, people

    it’s all about making good choices

    happyfeet (28a91b)

  109. I think it was during the Obama Administration, narciso. I honestly don’t have a clue what Trump and Sessions are doing.

    DRJ (15874d)

  110. @ Pin (100): That’s an interesting topic! There’s a huge variation among the states on their respective defamation laws, which in turn are 50 different and competing sets of common-law holdings from the state appellate courts and statutes passed by the state legislatures. Florida and California, for example, recognize a whole lot of “flavors” of defamation (e.g., “false light”) that Texas doesn’t. In Texas in the last decade, the state legislature has deliberately tilted the procedural playing field specifically to protect defamation defendants, even on the relatively few number of cases that could otherwise qualify under Texas’ substantive defamation laws. For instance, to recover punitive damages, the defamation plaintiff in Texas now must have made a detailed, written demand for a retraction within 60 days of the publication of the defamatory statement — not even 60 days from the plaintiff learning of that statement, but its making. And if he’s suing a media defendant like a newspaper, and the trial judge rules that he’s made an adequate fact showing to survive summary judgment, then the media defendant can get an interlocutory appeal, even before any jury has ever been convened or a trial begun, to review that decision by the trial court.

    In that sense, states like Texas have deliberately made themselves hostile to these claims, typically as a consequence of tort reform movements. And in that sense, I suppose states like California or Florida could be accused of being “pro-troll,” or at least emphatically more friendly to defamation claims on the margins.

    The consequence of this variation positively encourages forum shopping. A conspicuous example of the failure to do that is the recently-dismissed libel case that Sarah Palin filed against the NYT — in which she and her lawyers chose to sue in federal court in the Southern District of New York, under New York substantive law, with appellate rights to the Second Circuit. Had I been her lawyer, that case would have been filed in Wasilla in Alaska state court with a non-diverse defendant (whoever distributes the NYT in Alaska) to prevent removal to federal court based on diversity jurisdiction.

    Beldar (fa637a)

  111. Trump has had over 4000 lawsuits (of various types) over 30 years, so it would be wise of him to understand the law. I bet he learned some things instead of trusting lawyers to do it all, but maybe he’s a trusting fellow who doesn’t need to understand 4,000 things like that.

    DRJ (15874d)

  112. Errata: I should have looked before hitting “submit.” The Texas Defamation Mitigation Act has a 90-day notice period, running from the date the plaintiff received knowledge. Mea culpa. It’s still an incredibly pro-defendant statute.

    Beldar (fa637a)

  113. @78 BuhDuh

    I believe it’s called the Bully Pulpit for a reason.

    Pinandpuller (ca8297)

  114. And thursday Javanka will be bringing prison reform to the whitehouse along with Dick Durbin.
    RUFKM

    mg (8cbc69)

  115. I hope you are being sincere and not sarcastic, BuDuh. I believe the best way to understand things is through discussion, and you gave me a chance to express my views by asking me questions. I appreciate that. People may agree or disagree with our views — and I realize that neither of us changed our minds — but I still think it was worthwhile.

    DRJ (15874d)

  116. 108 — go back to writing about Trump not sanctioning a Revolutionary Guard company because he did business with them.

    shipwreckedcrew (56b591)

  117. By the way, many (I think most) states have written into their state constitutions a guarantee of free speech modeled upon (or identical to) the First Amendment to the Constitution of the United States.

    And some state appellate courts, interpreting and applying their state constitutions’ free speech guarantees, have independently come up with the same standard announced for the federal constitution’s free speech guarantee in NYT v. Sullivan.

    So even if you did amend the First Amendment, or appoint at least five SCOTUS Justices who’d overrule NYT v. Sullivan, you still couldn’t force the states to allow someone like Trump to sue his critics without meeting that standard.

    Beldar (fa637a)

  118. I was surprised to read, in the injunction, that statutory authority to grant work permits to immigrants who are subject to “deferred action” actually exists. If that’s right, DACA is at least arguably legal.

    Before you call me a communist, please understand that I oppose DACA on policy grounds. I had also previously opposed it on grounds of illegality, at least as concerns work permits, but the opinion suggests I may have been mistaken about that.

    A competent administration would have dotted the i’s and crossed the t’s to ensure that their reversal of DACA was safe from legal challenge. Instead, they were sloppy, as usual, and the semi-literate genius had to open his mouth.

    Dave (445e97)

  119. I’m sure this judge has a degree from camelot high.

    mg (8cbc69)

  120. Wouldn’t doubt this judge is retired.

    mg (8cbc69)

  121. So even if you did amend the First Amendment, or appoint at least five SCOTUS Justices who’d overrule NYT v. Sullivan, you still couldn’t force the states to allow someone like Trump to sue his critics without meeting that standard

    .

    Why not sue in federal court then? I vaguely recall reading that there are various artifices (something called “diversity”) that allow suits that start in state courts to wind up in front of the feds.

    All the lawyers here of course understand this better than I…

    Dave (445e97)

  122. You know with this in mind, maybe Trump was hoping there would have been an escalated security situation after the Tapper incident with some rap bodyguards moonlighting as CNN security guards dong the dirty deed inadverdently to Miller. Thats probably why he was salty in Atlanta at the football game (he was also conversing with ex-Home Depot CEO Arthur Blank).

    urbanleftbehind (5eecdb)

  123. 91. shipwreckedcrew (56b591) — 1/10/2018 @ 12:21 pm

    But this is the same guy who then lionizes Steele’s collection of dirt on Trump from the Russians where the intended recipient is going to be the Clinton campaign, and basically applauds the Russian sources who were brave enough to offer up the details to Steele, which he then took to the FBI out of fear that Trump was compromised.

    Russian sources offering dirt on Trump about Clinton — dirty bad people trying to influence election.

    IO think you mean TO Clinton.

    But you’re losing sight of one thing:

    Simpson says that Steele did not know he was working for the Democrats:

    https://www.nytimes.com/2018/01/02/opinion/republicans-investigation-fusion-gps.html

    Yes, we hired Mr. Steele, a highly respected Russia expert. But we did so without informing him whom we were working for and gave him no specific marching orders beyond this basic question: Why did Mr. Trump repeatedly seek to do deals in a notoriously corrupt police state that most serious investors shun?

    And still less therefore did the Russians know Steele was working on behalf of Hillary Clinton.

    They probably thought Steele was working for British intelliegence or members of the Conservative Party in the UK.

    It almost has to be that way, because why would Putin try to damage a candidate he supported?

    Sammy Finkelman (02a146)

  124. Answers that have been given are:

    A) Putin did not in fact support Trum, but just wanted to divide American politicians.

    B) This came from honest people in Russia and not Putin.

    C) Steele made it up.

    I don’t think either A, B or C are correct.

    Simpson offers D;

    D) The informaion wasn’t coinsidered important at the time.

    https://www.feinstein.senate.gov/public/_cache/files/3/9/3974a291-ddbe-4525-9ed1-22bab43c05ae/934A3562824CACA7BB4D915E97709D2F.simpson-transcript-redacted.pdf

    Pages 87-88:

    The thing that people forget about what was going on in June of 2016 was 20 that no one was really focused on sort of this question of whether Donald Trump had a relationship with the Kremlin.

    So, you know, when Chris started asking around in Moscow about this the information was sitting there. It wasn’t a giant secret.

    People were talking about it freely. It was only, you know, later that it became a subject of great ontroversy and people clammed up, and at that time the whole issue of the hacking was also, you now, not really focused on Russia. So these things eventually converged into, you know, a major ssue, but at the time it wasn’t one.

    SWC:

    Russian sources offering dirt to Clinton about Trump — brave persons who put their safety at risk to provide information to expose the Russian police state and their control of Trump.

    LOL.

    That’s B. But Steele says people didn’t realize the significance of the informaiton.

    I think the real explanation is E.

    E) They thought Steele was working for somebody British and they wanted the U.K. to keep the disinformation to themselves, but distrust a possible future Trump Admnistration.

    Sammy Finkelman (02a146)

  125. Dave, to yank a court from state court into federal court based on “removal jurisdiction,” you generally either need to show that the case raises claims under federal law (so-called “arising under” jurisdiction) or that there is complete diversity of citizenship (where none of the plaintiffs is of the same citizenship as any of the defendants). Defamation claims arise under state law, not federal law. (Federal law, specifically the First Amendment, limits the scope of those state laws, but that’s not enough to satisfy “arising under” jurisdictional requirements.) As for diversity of citizenship, that’s why I suggested above that Palin’s lawyers should have added the NYT’s Alaska distribution company as a co-defendant in Alaska state court, which would have put an Alaska resident on both sides and thereby “destroyed complete diversity,” meaning preventing the case’s removal.

    However:

    Even if a defamation case is removed to federal district court based on diversity (as Sarah Palin’s would have been by the NYT, had she sued in Alaska state court without adding an Alaska co-defendant to destroy diversity), the federal district court still looks to state law in order to decide whether something is or isn’t defamatory.

    And if that state law, either by statute or constitution, creates a higher hurdle for defamation plaintiffs (e.g., by requiring them to meet the same “actual malice” standard that NYT v. Sullivan construed the First Amendment to require, but under a state constitution), the federal district court would be almost certainly be obliged to defer to that. The several states, through their own governments (including their own state constitutions and the legislatures and courts created thereunder), are the final and definitive authority on the content and interpretation of their own laws. Federal courts routinely apply state laws in the process of handling disputes over which they have federal jurisdiction, but the federal courts as a general proposition aren’t allowed to change state law. (They occasionally, but rarely, conclude that the federal constitution or acts of Congress have overriden state law, but that’s considered an application of federal law.)

    I suppose while Trump was getting the First Amendment to the U.S. Constitution amended to overrule NYT v. Sullivan, he might also re-write the First Amendment to positively pre-empt and override all state law (including state constitutions) to the contrary, as the Thirteenth and Fourteenth Amendments did. But that would be an even more difficult task.

    Beldar (fa637a)

  126. Thanks for the clear explanation, Beldar.

    Dave (445e97)

  127. Oprah has some experience with defamation lawsuits as many of you Texans will recall.

    Pinandpuller (e5b9b5)

  128. The transcript of that testimony, which Sen. Dianne Feinstein (D-CA) published online Tuesday, doesn’t radically alter what honest people already knew about the state of the Russia scandal, but it is awful for Republicans, because it paints a tidy contrast between those working in good-faith, though at times sloppily, to uncover the truth; and those, from Trump on down, who have been engaged in a coverup.

    https://crooked.com/article/crime-worse-coverup/

    Admiral Ben Bunsen Burner (a70717)

  129. 92 — Lets sort this out Beldar. Don’t run and hide. I certainly understand delays in responding caused by the need to actually work to earn a living, so I’m happy to wait.

    But, do you really think that no part of Sullivan can be addressed legislatively?

    Do you know there is Supreme Court precedent against “consitutionalizing” burdens of proof?

    If the Court has admonished lower courts to not “constitutionalize” burdens of proof, then what do you think the Supreme Court’s response would be to state legislative amendments to libel laws which said a plaintiff need only show “actual malice” by a preponderance of the evidence rather than by “clear and convincing” evidence as the Sullivan decision holds.

    If the “clear and convincing” standard is not a constitutional one, why could it not be changed by legislative fix without running afoul of Sullivan?

    Do you think there has been no scholarly questioning of whether the “actual malice” standard is really a necessary part of First Amendment jurisprudence? Do you think that there has been no scholarly debate about whether the “actual malice” standard has, in many ways, had the opposite of the effect than that which was set forth in the decision as the basis for adopting the standard — i.e., to promote and insulate public debate from judicial review under libel laws.

    In your view, is the “actual malice” standard employed by courts today as strict as it was in the immediate aftermath of the decision? Has the Supreme Court recognized– after Sullivan — that states have a legitimate interest in seeking that defamed individuals are compensated?

    Lets understand exactly what Sullivan was originally. It was a Warren Court decision in 1964, written by Justice Brennan. The Sullivan decision itself concerned statements about public officials “against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open,…”

    Following Sullivan, Courts across the country focused on the “public issues” phrase more than the “public official” discussion. In fact, the Supreme Court adopted this very formulation in Rosenbloom v. Metromedia in 1971, finding that Sullivan prohibited a libel suit by a plaintiff who was not a public figure, but where the subject of the media broadcast about him was a matter of great public interest.

    But that wasn’t the end of it. In Gertz v. Welch decided in 1974, Supreme Court revisted the issue in Rosenbloom — which was a plurality opinion of 9 justices, with no controlling majority — but overruled what was considered the outcome of Rosenbloom, and narrowing Sullivan by holding that the actual malice standard did not apply, even with regard to subjects of great public interest, where the person alleged to have been libeled is not a public figure.

    One interesting fault line in the decade of jurisprudence between Sullivan and Gertz was staked out by Justice Harlan. He was in the majority in Sullivan, but objected to a later extension of the “actual malice” requirement from “public officials” (Sullivan) to “public figures” (Curtis Publishing v. Butts), arguing “that a public figure who held no governmental office should be allowed to recover damages for defamation on a showing of highly unreasonable conduct constituting an extreme departure from the standards of investigation and reporting ordinarily adhered to by responsible publishers” according to Powell’s decision in Gertz.

    Justice Powell acknowledged in the very first sentence of his Opinion in Gertz that the Court had “struggled” for a decade — since Sullivan — to define the “proper accommodation” between the laws of defamation and the First Amendment freedoms.

    So Sullivan has undergone review and revision numerous times since it was first decided. Its central principles are probably not going to ever be subjected to being revisited. But to say it can only be changed by constitutional amendment or appointing 9 new members to the Supreme Court is simply not true.

    So, about that claim of intellectual dishonesty……

    shipwreckedcrew (56b591)

  130. Beldar — ignore the “dont run” comment. As I was writing that comment I didn’t realize you were actively posting further in this thread. We both have a tendancy to have to come and go from the commments to deal with our day jobs. All I meant by it was that it would not suggest any “fleeing from the field of battle” if it took you a few hours to respond since this is a complicated and not always well understood area.

    shipwreckedcrew (56b591)

  131. 116 — I guarantee you Trump doesn’t even have a passing understanding of the law involved in half or more of those lawsuits. In an operation the size of his, my guess is that it would be his corporate in-house counsel who handles all litigation decisions.

    Do you think Bill Gates was familiar with the lawsuits filed by/against Microsoft while he was Chairman? Steve Jobs and Apple?

    Heck, I’ve sued Walmart on behalf of a client – don’t get me started – and I’m pretty sure no member of the Walton family knows anything about my case or the substantive law.

    shipwreckedcrew (56b591)

  132. @ Pin: Oprah’s case was actually not for regular common-law defamation, but brought under the Texas False Disparagement of Perishable Food Products Act, a nice piece of special interest litigation that ended up falling short for its intended beneficiaries. But the case did certainly get a lot of attention. Oprah’s lead appellate lawyer, Chip Babcock, regularly defends big-media defendants in defamation litigation, and he was asked at a recent CLE seminar I attended whether from that perspective, he could think of anything else that the Texas Legislature could do in order to make things harder for defamation plaintiffs and easier for defamation defendants. He admitted to drawing a blank — as in, they’re out of tort reform measures to even wish for because they’ve all already been enacted in Texas.

    Beldar (fa637a)

  133. The judge must have been speaking his “own truth” As Oprah puts it. As opposed to the, you know, truth truth.

    Patricia (5fc097)

  134. 128 — that claim that Steele didn’t appreciate his work was going to be used by the Dems is laughable.

    He was hired in late May or early June, 2016. He was not hired until after the Dems and Clinton campaign hired Fusion GPS.

    Trump was already the presumptive nominee for the GOP, having locked up the delegate count the first Tuesday in May.

    So when Steele is asked to dig up dirt on Trump in Russia, he’s supposed to be ignorant of on whose behalf his efforts are being made???

    shipwreckedcrew (56b591)

  135. There appears to have been retrenchment since thenhttps://www.oyez.org/cases/1989/89-645

    narciso (d1f714)

  136. That would be milovich v lorain journal, and there has been movement since then.

    narciso (d1f714)

  137. milkovich, Sullivan was part of nationalizing one particular view on an issue

    narciso (d1f714)

  138. BTW, in that Fifth Circuit opinion in the Oprah case, one finds that there was a strange dance involving a non-diverse defendant:

    On May 28, 1996, Paul F. Engler and Cactus Feeders, Inc., filed suit against Winfrey, Harpo Productions, Lyman, and Cannan Communications, Inc. (“Cannan”), in Texas state court.   Three days later, on May 31, Engler and Cactus Feeders filed a motion to nonsuit Cannan.   On June 5, the plaintiffs filed their first amended petition, renaming Cannan as a defendant.   On June 6, however, the trial court granted the plaintiffs’ May 31 motion to nonsuit Cannan.

    As Cannan had been the only non-diverse defendant, the remaining defendants filed a notice of removal on June 21.   From June 6 until the filing of the removal notice, the plaintiffs did not move to rejoin Cannan as a defendant in state court.   In federal district court, the removing defendants argued that the June 6 nonsuit operated to dismiss Cannan as a defendant from the June 5 first amended complaint and, regardless, that Cannan had been fraudulently joined in the state action to defeat diversity.   On motion to remand, the plaintiffs maintained that their May 31 motion to nonsuit applied only to their original complaint and that Cannan had not been fraudulently joined.   The district court found that the plaintiffs’ motion to nonsuit was effective only after it had been signed in Texas state court and, thus, that the nonsuit was effective as to the first amended complaint.   Although the state court nonsuit was voluntary and without prejudice, the plaintiffs did not attempt to rejoin Cannan in any amended pleading filed in federal court.

    I have no idea why the plaintiff non-suited the non-diverse defendant, but their decision to do so was the only reason that case ended up in federal court. But it might be that the plaintiffs’ lawyers non-suited the non-diverse defendant because they didn’t like the state district judge they originally drew when they filed in state court. If they decided that they’d actually prefer to be before U.S. District Judge Mary Lou Robinson, dropping the non-diverse codefendant would essentially invite Oprah’s lawyers to remove the case to federal court, and that’s indeed what happened.

    Either the state courts or the federal courts, though, would have decided the case (including submitting it to the jury) based on Texas’ substantive law, as embodied in that state statute.

    Beldar (fa637a)

  139. According to a survey conducted late last year by the Victims of Communism Memorial Foundation, a third of Americans and as many as 44% of Millennials would prefer to live under a socialist system than a capitalist one. This is more than a little puzzling at a time when socialism has proved a catastrophic failure in its remaining strongholds in Venezuela, North Korea and Cuba.

    https://www.usatoday.com/story/opinion/2018/01/10/students-more-liberal-but-its-not-because-their-professors-james-piereson-naomi-riley-column/1012622001/

    Admiral Ben Bunsen Burner (a70717)

  140. ACADEMIA!!!

    Admiral Ben Bunsen Burner (a70717)

  141. What is a non-diverse defendant?

    Patricia (5fc097)

  142. 147. They’re not thinking of dictatroships taht call themselves Socialist, but of something that doesn’t exist in any place on the earth.

    Sammy Finkelman (02a146)

  143. 140. shipwreckedcrew (56b591) — 1/10/2018 @ 2:16 pm

    So when Steele is asked to dig up dirt on Trump in Russia, he’s supposed to be ignorant of on whose behalf his efforts are being made???

    Supposed to be yes.

    I suppose it cold be a media corporation.

    Sammy Finkelman (02a146)

  144. 144 — that’s not surprising, but it doesn’t necessarily mean that much.

    Prosecutors who aren’t specifically trained to deal with the technical specifics of cyber crime have a great deal of difficulty in understanding all the lingo used by the tech agents who do the investigating. FBI tech agents who work cyber cases, and do technical analysis of seized equipment, have two years of intensive training on the technical aspects of the work. There really isn’t an equivalent level of training for prosecutors, but there are some courses that are created for prosecutors so that one or two in every office is at least conversant in the subject and can handle most of the crimes that have a level of technical expertise required.

    I doubt that Mueller’s original team had such a person, so to assist in the work being done by the tech agents, adding someone who could translate tech-ease into legal-ease makes sense.

    shipwreckedcrew (56b591)

  145. Point is Sammy, you can stop whining about institutional liberalism like it was the boogie man.

    Admiral Ben Bunsen Burner (a70717)

  146. 149 — diversity means diversity of state residence.

    Generally, in cases of “complete diversity” — meaning that no individual plaintiff is a resident of the same state as any individual defendant — there is the option of “diversity” jurisdiction in federal court.

    Its intended to prevent an in-state plaintiff from benefiting from a same-state jury rendering a verdict against an out-of-state defendant.

    So if a Calif plaintiff sues a New York defendant in Calif state court, the New York defendant can seek to remove the case to federal court in California.

    A “non-diverse” defendant exists if a California Plaintiff sued two defendants — one from New York and one from California — in a California court. In that case, because at least one defendant is from the same state as the plaintiff, there is not “complete diversity”, and the matter cannot be removed to a federal court. Since there is a California defendant, the chances of getting “homered” by a Calif jury in favor of a Calif plaintiff are lessened.

    shipwreckedcrew (56b591)

  147. Allahpundit is intellectually honest about this, as is Popehat’s Ken White, who tweeted that “it’s possible that Trump doesn’t understand what he can or can’t do about libel law and nobody in his circle sees any point in explaining.”

    Patricia: Let’s say that I live in Texas (as I do) and I sue the New York Times for libel here in Texas in state district court. There’s no question that the New York Times may properly be sued here, because it does business here (by selling its newspapers and collecting subscription fees).

    The New York Times can (at its option), within a certain number of days, “remove” that case from the Texas state district court where I filed it, because the New York Times’ citizenship (as a corporation) is New York State, and there is therefore “complete diversity of citizenship” between me (a Texan) on the one side of the case and the NYT (a New Yorker) on the other.

    If I also had sued the NYT’s local distributor here in Texas — who has thereby “re-published” the NYT’s alleged libels against me — then that company would be a “non-diverse defendant,” meaning a defendant who shares citizenship with me, in Texas. If there’s a non-diverse defendant, then all of the defendants are stuck in state court.

    The very rough (and often inaccurate and inapplicable) presumption behind federal removal jurisdiction is that being from out of state, defendants like the NYT, when sued in places like Texas, ought to have an opportunity to demand on the case being heard by a federal court. But if there are other Texans on the same side with the NYT, that’s supposed to sufficiently offset its local disadvantage in the state-court system and help ensure that it will get a fair trial even in the state courts.

    Beldar (fa637a)

  148. I especially love the foundations name:
    Victims of Communism

    Admiral Ben Bunsen Burner (a70717)

  149. US just angry they didn’t think of Sonics first.

    Admiral Ben Bunsen Burner (a70717)

  150. See also Ken’s linked Lawsplainer: About Trump “Opening Up” Libel Laws from November 2016:

    In short, there’s no big eager group of “overturn Sullivan” judges waiting in the wings to be sent to the Supreme Court. The few academics who argue that way are likely more extreme on other issues than Trump would want.

    So: whether or not Trump really wants to “open up” defamation law, it’s unlikely he can.

    Beldar (fa637a)

  151. I don’t disagree with anything Allapundit said. Any change would be an extraordinarily “heavy lift”, likely doomed to failure for a dozen different reasons, and legal advice along those lines would likely prevent any legitimate effort from ever being attempted, notwithstanding the “advocacy” that there should be changes.

    I disagree with the proposition that nothing CAN be done.

    I disagree with the proposition that “advocating” that something should be done makes one “deeply ignorant” about our constitution.

    shipwreckedcrew (56b591)

  152. 162 — but please answer this question: Can state libel law be written such that the “actual malice” standard of Sullivan can be established by preponderance of the evidence, rather than “clear and convincing” evidence?

    shipwreckedcrew (56b591)

  153. Nearly 40% Of Oregon’s Incarcerated Sex Offenders are Illegals.

    “An astounding 476 — 48.92 percent — of the criminal alien prisoners in Oregon have been convicted of committing crimes of a sexual nature, with 200 cases of sex abuse, 175 cases of rape, and 101 cases of sodomy. In fact, detainees with ICE detainers make up 39.32 percent of the state’s incarcerated sex offenders. A total of 136 of the state’s criminal alien inmates are in custody because they murdered someone. Drugs, assault, robbery, kidnapping, burglary, theft and driving offenses round out the top ten list of crimes committed.”

    https://pjmedia.com/trending/one-fifteen-oregon-prisoners-criminal-alien-nearly-half-convicted-sex-crimes/

    But a poem tacked on to the Statue Of Liberty > Federal Law right?

    harkin (8256c3)

  154. I disagree with the proposition that “advocating” that something should be done makes one “deeply ignorant” about our constitution.

    Same here.

    BuDuh (fc15db)

  155. Ach! That State’s Rights issue dares to be broadly applied. It’s too bad Orwell was right.

    Admiral Ben Bunsen Burner (a70717)

  156. Stable Genius getting proposed

    4/5 for the Dem’s trolling effort.

    Proposed test should also include semi-literacy and the ability to distinguish US and Russian flags.

    Dave (1e7627)

  157. Thanks for the explanation…I’m glad it didn’t mean what I thought it meant, in the common usage.

    Patricia (5fc097)

  158. swc,

    I understand that a corporate officer of designated agent can authorize pleadings or a lawsuit on behalf of a corporate entity. Can you explain to me how a corporate officer or agent can authorize the filing of a personal defamation lawsuit on behalf of Donald Trump, an individual, without his knowledge and consent? For starters, I see a problem with FRCP Rule 11 compliance or the state law equivalent.

    DRJ (15874d)

  159. Trump doesn’t need to build a library, because of Trump U.

    mg (8cbc69)

  160. Where has Trump advocated changing anything specific about libel laws, other than not liking how they apply to him?

    DRJ (15874d)

  161. semi-literacy..

    They think you mean 18-wheeler.

    Admiral Ben Bunsen Burner (a70717)

  162. Trump doesn’t need to build a library, because of Trump U.

    Lol, the ivy-covered walls…

    Patricia (5fc097)

  163. Lol, the ivy-covered padded walls…

    Dave (1e7627)

  164. @115 Beldar

    Is finding a forum to sue for defamation anything like how Amazon determines you have to pay sales tax?

    So can I sue the NYT’s in any state where it’s sold?

    Trump doesn’t really need to sue anybody at this point. Enough so called journalists are falling on their swords. Imagine Cindy Sheehan with a Whitehouse press pass.

    Pinandpuller (8bbc31)

  165. Sigh. It’s all bluster like DRJ said early in the thread. He wants to tell his supporter that “it’s all lies” but he can’t “fight back” because of “the libel laws”. But he’ll take a “strong look” at those libel laws, believe you me. And he’ll appoint “the best people” to write new ones. Great ones. Tremendous ones. I guarantee it.

    nk (dbc370)

  166. The Sanhedrin are in session..

    Donald Trump’s spiritual adviser has suggested that people send her money in order to transform their lives, or face divine consequences.

    Paula White, who heads up the president’s evangelical advisory committee, suggested making a donation to her ministries to honor the religious principle of “first fruit,” which she said is the idea that all firsts belong to God, including the first harvest and, apparently, the first month of your salary.

    http://www.newsweek.com/donald-trumps-spiritual-adviser-paula-white-suggests-people-send-her-salary-775228

    Admiral Ben Bunsen Burner (a70717)

  167. @127 urbanleftbehind

    The CDC in Atlanta was where a felon with a gun was allowed on an elevator with Obama.

    Pinandpuller (8bbc31)

  168. Thank the gawds for media hacks with fake news.

    Admiral Ben Bunsen Burner (a70717)

  169. @ Patricia (#168): 😀

    Yes, this is about “diversity” in the sense used to describe Article III, Section 2, of the Constitution:

    The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;–to all Cases affecting Ambassadors, other public Ministers and Consuls;–to all Cases of admiralty and maritime Jurisdiction;–to Controversies to which the United States shall be a Party;– to Controversies between two or more States;–between a State and Citizens of another State;–between Citizens of different States;–between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.

    In Strawbridge v. Curtiss (1806), Chief Justice John Marshall interpreted the 1789 Judiciary Act’s language implementing this jurisdiction to require “complete diversity,” writing that “where the interest is joint, each of the persons concerned in that interest must be competent to sue, or liable to be sued, in those courts.” So this is very old, not “diversity” in the sense used in modern culture to mean “from many different races and cultures.”

    Beldar (fa637a)

  170. Bye-bye Issa. And another one bites the dust.

    DCSCA (797bc0)

  171. State law provides where lawsuits arising under state law (like defamation) can be filed. For instance, in Texas, I think a plaintiff may choose to file a defamation lawsuit in any one of 4 places under Sec 15.017:

    1. The county where plaintiff resided when the claim arose, or
    2. The county where defendant resided when the suit is filed, or
    3. If two or more defendants, a county in which any defendant resided when the suit is filed, or
    4. The domicile of a corporate defendant. Corporate domicile is generally a corporation’s principal place of business or home office, but even that can be an issue to be determined by state law.

    DRJ (15874d)

  172. Orange County morphed into MILF housewives of Kardashian wannabes have gone progressive…plus Issa pretty much the horse’s arse..

    Admiral Ben Bunsen Burner (a70717)

  173. issa the first republican that failed to lock her up. FCS lock issa up.

    mg (8cbc69)

  174. The ones that bring in out of state defendants are called long-arm statutes. Hmm. Makes me wonder what Trump thinks that means.

    nk (dbc370)

  175. And the Army induction physical, which he claims he failed, used to be called a short-arm inspection. Hmm, again.

    nk (dbc370)

  176. In Strawberries v. Queeg (1954), the court-martial Board of Inquiry found Steven Maryk, Lieutenant, US Naval Reserve, not guilty of mutiny while serving on board the USS Caine relieving Lt. Commander Queeg, while was engaged in the exercise of his command.

    DCSCA (797bc0)

  177. Not so, nk, two different examinations.

    ropelight (0e2d9b)

  178. @138 Beldar

    That seems like the first wave of so called Ag Gag laws. The main obstacle, as you said, is that TX is defendant friendly.

    How much is someone likely going to spend to get to summary judgement? Someone without Oprah’s FU money.

    Pinandpuller (8bbc31)

  179. @183/184 His district and the districts surrounding him have been gerrymandered to the max– or mex- while the population and economic demographics have shifted out of his favor. He barely won last cycle.

    DCSCA (797bc0)

  180. @190. Duncan Hunter is not unlike his pappy- a useless ass.

    DCSCA (797bc0)

  181. Eight years worth of expenditures, right but red queennwascjust a matter.

    narciso (d1f714)

  182. 191

    Betcha a conservative independent like Patterico could make a go of it.

    Admiral Ben Bunsen Burner (a70717)

  183. I’d pledge few shekels and shoe leather.

    Admiral Ben Bunsen Burner (a70717)

  184. Oprah’s Texas lawsuit, in which she was a defendant, was in 1998. The first significant Texas tort reform legislation was in 2003. There were a lot of interesting things about that lawsuit, including her celebrity status and that she used a little known jury consultant, Dr. Phil.

    DRJ (15874d)

  185. Not one to shy away from a fight, President Trump punched back that not only is he a successful chief executive, [but] he’s a “very stable genius” to boot. Dilbert[-]creator Scott Adams took the matter a step f[a]rther by arguing that proclaiming himself a “very stable genius” or “VSG” was itself a genius Trump move because that will be his “forever name.” Whether people use the expression VSG admiringly or sarcastically, the words “Trump” and “genius” are going to be kept in close proximity.

    https://www.usatoday.com/story/opinion/2018/01/09/stop-trying-diagnose-our-very-stable-genius-president-he-might-right-james-robbins-column/1013156001/

    Thanks to congressional democrats being flighty and stupid the name Trump and VSG are going to be enshrined in the letter of law.

    Caution: Congressional Democrats at work. [YouTube]

    papertiger (c8116c)

  186. 169 — you switched from apples to oranges. My comment was in response to your comment that Trump has been involved in 4000 cases over the years, and my guess is that only a handful of them are something other than commercial disputes. And I would guess that not all 4000 involve DJT in his personal capacity. So the vast majority of the cases are likely commercial cases where his direct involvement as an individual litigant would suggest some level of personal understanding of the law.

    But even in those libel/defamation cases where he was named as a personal litigant, he doesn’t need to understand the legal nuances in order for his lawyer to have a good faith basis to file suit. As long as Trump provided his attorney with facts, and the attorney concluded as a legal proposition that the facts justified a cause of action, Trump would only have to give the green light, he wouldn’t need to pass a quiz on the laws involved.

    shipwreckedcrew (56b591)

  187. 183 — Issa is in Northern San Diego.

    And the key change is that for 3 decades that area has had an ever increasing population of Hispanic voters.

    shipwreckedcrew (56b591)

  188. Do you think Trump isn’t able to learn about libel law or just not interested in the details? I would think something so personal and important would interest him, but maybe details aren’t his thing.

    DRJ (15874d)

  189. Can we agree he really cares about libel law, even if he can’t be bothered to understand it?

    DRJ (15874d)

  190. WHATABOUTERY

    Admiral Ben Bunsen Burner (a70717)

  191. Rohrabacher, Hunter and Issa were tight butt-buddies so I expect a Trifecta.

    Admiral Ben Bunsen Burner (a70717)

  192. Orange County used to be Red. Know not at all.

    mg (8cbc69)

  193. Rohrabacher, the golden long-boarder likes Rubles for rubbing.

    Admiral Ben Bunsen Burner (a70717)

  194. Orange County Register…check them out.

    I used to slave on their paper routes for Republican porridge. “Can I have some more sir?”

    Admiral Ben Bunsen Burner (a70717)

  195. Dickens wept over old Orange County.

    Admiral Ben Bunsen Burner (a70717)

  196. Kind of interesting.

    https://www.amazon.com/Fire-Fury-Bombing-Germany-1942-1945-ebook/dp/B002FQOHR4/ref=dp_kinw_strp_1

    This book as become a surprise best seller due to semi-literate Democrat voters inability to tell the difference between “the allied bombing of Germany” and “inside the Trump White House“.

    Explains California’s political climate perfectly.

    papertiger (c8116c)

  197. Duncan D Hunter is R-Cobra Kai.

    urbanleftbehind (324d7e)

  198. He looked into voter fraud too and nothing came of it so why get worked up over it?

    crazy (d99a88)

  199. ‘Swords of covfefe’ is already down 30% of Barnes and noble.

    narciso (d1f714)

  200. ‘Swords of covfefe’ is already down 30% of Barnes and noble.

    It’s the lure of something for nothing, has a very strong appeal in California.

    papertiger (c8116c)

  201. Not surprising Ben of telegraph avenue would be dismissive of an Afghan and Iraq vet

    narciso (d1f714)

  202. For the record, swc, it wasn’t apples and oranges. My original point and link was about Trump’s defamation cases. I don’t know how many of his 4000 lawsuits, plus even more cease and desist letters, involve defamation claims but it’s certainly a bigger percentage than your comparison to Wal-Mart’s lawsuits. And I seriously doubt that your Wal-Mart legal contact would have been able to authorize you to file a personal defamation suit on behalf of one of the Wal-Mart family members.

    DRJ (15874d)

  203. Seems relevant to this thread:

    https://mobile.twitter.com/brithume/status/951189774290825217

    narciso (d1f714)

  204. Meanwhile in the real news department

    https://mobile.twitter.com/alimhaider/status/951239833707479040?p=v

    narciso (d1f714)

  205. I used to slave on their paper routes for Republican porridge.
    Try stacking hay in the hay mound when its 95degrees and 90% humidity for The Democratic Farm Labor Union. That was true child slavery.

    mg (8cbc69)

  206. narciso’s link is a Trump quote (from today, BuDuh):

    President Trump: “We are going to take a strong look at our country’s libel laws … You can’t say things that are false, knowingly false, and be able to smile as money pours into your bank account.”

    As Brit Hume notes, that is wrong. Current libel law does not allow people to knowingly or recklessly libel public figures, but I guess Trump wants us to think it does.

    DRJ (15874d)

  207. Can you, it seems you can pretty much everything except the inconvenient truth, you can accuse anyone of any crime, and there is practically no recourse. An outfit like CNN or ABC can get things habitually wrong yet they are nit to amount.

    narciso (d1f714)

  208. Yes Melania has been able to extract some coin from certain outlets, but its a rare thing. Gubarev may yet own Ben Smiths office

    narciso (d1f714)

  209. Nice ellipsis in the middle of that quote, DrJ.

    BuDuh (fc15db)

  210. But in point of fact, hanens froze the law in those states, and I suppose the 9th circus did otherwise.

    narciso (d1f714)


  211. Current libel law does not allow people to knowingly or recklessly libel public figures, but I guess Trump wants us to think it does.


    That’s not true. Current libel law provides recourse for victims of known or reckless libel but can’t stop people from doing it. And in the case of public figures fighting could do more harm than not so in the typical leftist style they win either way. So I guess Trump is right.

    Rev.Hoagie (6bbda7)

  212. That was a quote from NBC News, BuDuh, but the entire transcript is here. You’re welcome.

    DRJ (15874d)

  213. Heh. Fake but accurate, Hoagie?

    DRJ (15874d)

  214. Our laws don’t stop bad things before they happen. We could have lots of laws that outlaw or prevent almost every activity, but it would be very authoritarian.

    DRJ (15874d)

  215. It seems to me that if you want to be either 1) a public official or 2) a public figure, then you should make sure to be the kind of person that if somebody lies about you nobody believes them. Then you won’t need no steenkin’ defamation suit because you suffered no damage. If you are not that kind of person, the kind that if somebody lies about you nobody believes them, then you should stay out of public life, and mind your own business, and if somebody lies about you and it damages your reputation, you can sue their asses off. Or you can just not give a sh!t. But please don’t be such a f’king crybaby who wants his pinkie and his titty both at the same time.

    nk (dbc370)

  216. An outfit like CNN or ABC can get things habitually wrong yet they are nit to amount.

    CNN and ABC each make factual reporting errors requiring corrections on average, what, maybe once a month?

    Dave (445e97)

  217. Could you name me some persons like that, who were intentionally slimmed, not by dorm penny ante Twitter twit, but a major network or newspaper:
    Just look in your neck of the woods.
    http://thefederalist.com/2018/01/10/10-takeaways-from-glenn-simpsons-fusion-gps-senate-testimony

    narciso (d1f714)

  218. Swords of covfefe’ is already down 30% of Barnes and noble.

    In my experience, B&N sells all hard-cover best sellers at 30% off when they first come out.

    Dave (445e97)

  219. When’s the last time, they got a story completely correct, without omission or exaggeration.

    narciso (d1f714)

  220. And that’s Trump’s REAL problem. That all the lies said about him are believable. Because he already, himself, has destroyed his reputation. People don’t shake their heads and say, “No way Trump would do or say something like that”. They nod their heads and say, “Yup, sounds just like Trump”.

    In point of fact, that’s how the NYT defended themselves about a year or so back when he threatened to sue them. They did not raise the issue of public figure or actual malice. They said: “We did not hurt your reputation cause you ain’t got none.”

    nk (dbc370)

  221. Well take jack Ryan, for instance, now the la times did print the records from his divorce records ‘because inquiring minds want to know’

    narciso (d1f714)

  222. So you do have the transcript. And you didn’t find anything that shows ignorance of the Constitution with regards to the libel laws.

    Thank you.

    BuDuh (fc15db)

  223. “An outfit like CNN or ABC can get things habitually wrong yet they are nit to amount.”

    The NYTimes last year threw all journalistic standards of fact-checking out the window to perpetuate the ‘Palin’s Responsible For The Giffords Shooting’ smear and got off. Their basic defense was ‘we were tired and facing a deadline’.

    harkin (8256c3)

  224. Trump went full Mr. Subliminal today:

    (this was his answer to a single question)

    Trump: “Well, again John, there has been no collusion between the Trump campaign and Russians or Trump and Russians. No collusion.no collusion. And there is no collusion.

    […]

    “But again I’ll speak to attorneys — I can only say this, there was absolutely no collusion.no collusionno collusion and nobody’s found any collusion …”

    (The question he was responding to was: “Are you open to meeting with” Mueller?)

    In his 30-minute interview with the New York Times over the holidays, he said the words “no collusion” 16 times.

    I guess he figures if he says it enough times, the “treasonous” (in Steve Bannon’s words) Trump Tower meeting between his son, son-in-law, campaign manager and Russian intelligence agency cut-outs will un-happen or something…

    Dave (445e97)

  225. I repeatedly explained why I don’t think he understands libel law and free speech. You can certainly disagree but you can’t say I failed to try to explain my position. In addition, I specifically searched for the complete transcript. It was not available earlier but it was posted this evening. I did that as a courtesy to you. To use my courtesy as an attempt to play gotcha is not nice.

    DRJ (15874d)

  226. What Obama’s flunkies and the California judge did to Ryan was slimy but it has nothing to do with American defamation law even pre-Sullivan. He might have had a cause of action in England and almost certainly in France where they have some versions of “the bigger the truth, the bigger the libel”, but in those places the court would not have unsealed the divorce records in the first place.

    nk (dbc370)

  227. narciso’s brit hume link at comment 218 had the video of Trump, and not only a transcription, when I clicked it earlier.

    nk (dbc370)

  228. Here. I do for you. https://mobile.twitter.com/brithume/status/951189774290825217

    You owe me potato.

    nk (dbc370)

  229. It is possible the White House transcript I linked is not accurate. I did not check but there are questions about the accuracy of another transcript of the White House immigration meeting. Sad.

    DRJ (15874d)

  230. BTW that is a Patterico post at Red State.

    DRJ (15874d)

  231. To throw in the gratuitous “your welcome” was the stinker, DRJ.

    You know that.

    I have been cordial and consistent. You even noted it above.

    I did not ask for the transcript. I clearly had the transcript since I was challenging you to back up your assertion about Trump and his ignorance of the Constitution regarding the statement.

    You still haven’t come close.

    BuDuh (fc15db)

  232. He has said that some of his posts at Red State are exclusives.

    nk (dbc370)

  233. Ironically, chalupa was working for the party that looked the other way for the five years leading up the dombas takeover, which refused to supply Ukraine with anything but rations at the height of the conflict, who didnt recall any diplomats when guru elements actually shot down a jet liner.

    narciso (d1f714)

  234. To lay persons, trump explanation if you are a large enough figure they can say anything about, some outlets make you a public figure through omission or out right lying.

    narciso (d1f714)

  235. Brits link was in the context of this statement:
    https://mobile.twitter.com/alimhaider/status/951243899565170690?p=v

    narciso (d1f714)

  236. Not knowing the libel law legal standard set forth in Sullivan and how it applies to public persons is not understanding the Constitutional provisions regarding free speech.

    My guess is that Trump doesn’t think there should be different standards for public and private persons, but if so that represents a failure to grasp the importance of free speech — espevially regarding public officials. Criticism of public officials and issues of public importance is part of how we learn, communicate, decide, and govern ourselves. I know Trump supporters thought it was important to be able to criticize Obama and the Democrats. It’s true for everyone.

    DRJ (15874d)

  237. The problem is those who only have rabbit ears or only watch CNN and MSNBC are bound to get the wrong impression, yet again.

    narciso (d1f714)

  238. And Trump doesn’t know the Sullivan standard because he misstated it, as Brit Hume said above.

    DRJ (15874d)

  239. And you are welcome, BuDuh. I was trying to be nice. You, apparently, we’re playing some kind of game.

    DRJ (15874d)

  240. @ nk (#328): Under Texas law, that’s a separate defense from NYT v. Sullivan, called the substantial truth doctrine:

    The critical test should be whether the defamation, as published, would affect the mind of the reader or listener in a different manner then would the misconduct proved. If the effect on the mind of the recipient would be the same, any variance between the misconduct charged and the misconduct proved should be disregarded.

    It puts me in mind of the Alan Jay Lerner lyrics from a song in Royal Wedding:

    How could you believe me when I said I love you
    When you know I’ve been a liar all my life
    I’ve had that reputation since I was a youth
    You must have been insane to think I’d tell you the truth
    How could you believe me when I said we’d marry
    When you know I’d rather hang than have a wife
    I know I said I’d make you mine
    But who would know that you would go for that old line
    How could you believe me when I said I love you
    When you know I’ve been a liar
    Nothing but a liar, all my doggone cheatin’ life

    Beldar (fa637a)

  241. Milkovich mentioned upthread, was not heard on two different instances, 1979 and 1986, this was after gertz

    narciso (d1f714)

  242. In my experience, B&N sells all hard-cover best sellers at 30% off when they first come out.

    If you’re part of their membership program, it’s 40% off.

    Kishnevi (65f98d)

  243. @239

    Now do “Obama isn’t an American citizen”.

    Davethulhu (99cc74)

  244. Perhaps more relevant in your neck of the woods

    https://law.justia.com/cases/california/court-of-appeal/3d/232/1599.html

    narciso (d1f714)

  245. Read the book jacket on dreams until 2008.

    narciso (d1f714)

  246. A game?

    So much for honest dialog with you.

    Next time please just tell me up front that you are all about evasion.

    That is the only game I see.

    BuDuh (fc15db)

  247. Lenny@242

    Did you realize that link is a year old (almost exactly: 11 Jan 2017

    Kishnevi (65f98d)

  248. @264

    lol a birther in 2018.

    Davethulhu (99cc74)

  249. I originally asked Beldar the question. You jumped in. I asked you the question then.

    We could have saved a lot of time if you would have been clear that you had no intention of answering.

    I will try to not make that mistake again.

    I hoped for more from you.

    BuDuh (fc15db)

  250. No, I found that a silly exercise, but they apparently thought making him the Kenyan son of a finance minister added gloss.

    narciso (d1f714)

  251. He has said that some of his posts at Red State are exclusives.

    I will usually cross-post them and will always link them here. This one cross-posts in 6 minutes.

    Patterico (115b1f)


  252. My guess is that Trump doesn’t think there should be different standards for public and private persons, but if so that represents a failure to grasp the importance of free speech — espevially regarding public officials.


    See, you started off well by admitting Trump (or anybody) can think there should be no difference in standards between public and private persons. It’s just a matter of opinion. Unfortunately, instead of figuring it is his opinion you immediately put it in TDS mode and decided that because it’s Trump it must be his “failure to grasp the importance of free speech especially regarding public officials”.

    I realize for many of you guys just getting past the fog of Trump Derangement Syndrome can be difficult especially when you must paint him a badly as possible at every turn but at least give it a try once in a while.

    Rev.Hoagie (6bbda7)

  253. Snort! 273 comments discussing this like we didn’t already know that Trump is a baby who only wants to be praised.

    nk (dbc370)

  254. Kim strassel notes broader appearedin an open hearing, whereas Simpson had it closed for 5 months, oddly the regular press seems to buy the letters story.

    narciso (d1f714)

  255. @ Patterico, re #270: Ramesh Ponnuru noticed that the WH’s new talking points for today also did their own walkback of what the POTUS actually said in that meeting.

    Beldar (fa637a)

  256. Hoagie, it’s fine with me if Trump wants to argue the legal standard should be changed, but he misstated what the standard is. He said it was ok to knowingly lie about public persons. That is not a matter of opinion, it is incorrect.

    DRJ (15874d)

  257. How about Nixon, Ford, Reagan, and the Bushes? How come they didn’t ask for changes in the defamation laws? Was the media nicer to them?

    And how about Sarah? Her case was unfairly dismissed. Why isn’t she asking for repeal of NYT v. Sullivan, not to mention Twiqbal?

    nk (dbc370)

  258. Really now, who segued in libel law, I thought the daca was mostly dead because of hanens injunction upheld by the supreme court. But where dark magic is practiced. Like mordor, its unread.

    narciso (d1f714)

  259. Because the press has gotten from a mild cold to hemorrhagic fever irresponsibility,

    narciso (d1f714)

  260. 266 – Kishnevi

    No I didn’t. Still, fits nicely with what’s happening with the DOJ/FBI/FusionGPS/Democrat scandal. A catchy name would be useful, as long as it doesn’t contain Gate.

    Lenny (5ea732)

  261. But that would mean Ukraine was actually ‘colluding’ with the dnc, the very same people that sealed their fate, ironically the administration has probably put us closer to a proxy war.

    narciso (21eb6d)

  262. “So sorry. You’re renewal application must have been lost.”

    Kevin M (752a26)

  263. I would like to see an investigation of the ex parte communications of some of these judges. When the fix is in, one always wonders how far the fix extends.

    Kevin M (752a26)

  264. How about that swallowing your gum it will stay in your GI tract for seven years lie?

    Probably too late to catch the one who taught you manners.

    Mexican word of the day is “nacho” [jpg]

    papertiger (c8116c)

  265. I hope that this order is swiftly appealed and reversed. It’s a naked power grab by the courts and has no basis in law.

    At this point it is a naked power grab by a district court judge in a WAY-left town where Trump got only 8% of the vote. This ought to get slapped down, but the Kozinsky-less 9th Circuit is a Democrat cesspool.

    Kevin M (752a26)

  266. #282: *YOUR (hides face in embarrassment)

    Kevin M (752a26)

  267. He is a Mississippi born Harvard law grad, justice Douglas clerk and for carter justice department

    narciso (21eb6d)

  268. Trump’s problem is that all he knows is what people tell him, and sometimes when they say “That can’t be done” they mean “That’s really hard to do” (e.g. a marble ceiling) and sometimes they mean “We have no idea how that might be done” (e.g. FTL spaceflight).

    And sometimes, when he yells and screams and throws things, they find a way to do the “impossible” thing. Which is why he has those marble slabs on his bedroom ceiling. (Kidding)

    Kevin M (752a26)

  269. Rather than debate whether Trump is showing signs of early-onset dementia, the public might want to focus on Diane Feinstein.

    She’ll be 85 in June, and recently announced she’s going to run for reelection.

    When she was speaking about releasing the Glenn Simpson transcript today she said she was pressured to release it.

    When a reporter asked her who pressured her, she said she wasn’t pressured to release it.

    Ahem…..

    shipwreckedcrew (56b591)

  270. #135:

    Because it would be so hard to prove “actual malice” by some members of the Press.

    Kevin M (752a26)

  271. This primary with deleon (d looney) is driving her out of her comfort zone.

    But it is striking how Simpson is virtue signaling over how he must keep secrets (much like miss Plame, but browder testified openly and like whatever man…

    narciso (21eb6d)

  272. When discussing Trump’s knowledge of the law, it’s good to remember that he promised to impose – by executive order – the death penalty on anyone who kills a cop:

    “One of the first things I’d do in terms of executive order, if I win, will be to sign a strong, strong statement that would go out to the country, out to the world, that anybody killing a police man, a police woman, a police officer, anybody killing a police officer, the death penalty is going to happen.” – Donald Trump

    Of course, one could look at this as simply another cynical lie, among thousands, to con his supporters out of their votes (he was addressing a group of police officers). Almost a year has gone by since his inauguration, and the executive order he promised as “one of the first things I’d do” has not materialized. This promise also contradicts a aubsequent (equally cynical and dishonest) promise he made, that crime and violence would come to an end after he was inaugurated.

    But Trump apparently believes the president can change state law, and put people to death, by decree. He understands nothing about the laws he has sworn an impossible oath to faithfully execute. A president lacking even the most basic understanding of the laws cannot preserve, protect or defend the Constitution.

    And this, in itself, is proof that he is unable to discharge the duties of his office, and should be removed under the 25th Amendment.

    Dave (445e97)

  273. Now do “Obama isn’t an American citizen”.

    Davethulhu (99cc74) — 1/10/2018 @ 8:09 pm

    I’m sure you know the Constitutional standard is “Natural Born Citizen”, which was also brought up about McCain and Cruz. And Cruz renounced his Canadian citizenship just in case.

    Pinandpuller (bddcf7)

  274. http://patterico.com/2008/12/30/iseman-sues-new-york-times/

    Libel law opinions of yesteryear.

    papertiger (c8116c)

  275. Ultimately, papertiger, Iseman vs NY Times ended with an explanation/retraction but no settlement. The sticking point was whether Iseman was a public or private person under Sullivan.

    DRJ (15874d)

  276. This is why people have to despise the law. Drj maybe not yet as Dick the butcher but close, what matters that she is a public oeeson if the statement is false. What matters daca if arises from an illegitimate attempt to circumvent the will of the people

    narciso (d1f714)

  277. Laws should be easier to understand but it still takes effort to understand the law. We don’t live in a simple society and everything is more complex, including the law. We have to take responsibility for learning what we need to learn. If we don’t, then we must that accept things may not work the way we like.

    When was the last time you went to the doctor and expected him/her to educate you instead of simply treat/decide for you?

    DRJ (15874d)

  278. The times got away with it, again, they did the same thing with the huntress in the fall, the following summer, and the winter after that.

    They and NBC made Zimmerman a wanted man, regardless of acquittal, they still covered fast and furious with a pillow

    narciso (d1f714)


  279. When was the last time you went to the doctor and expected him/her to educate you instead of simply treat/decide for you?


    I don’t know about you but I expect both my lawyers and doctors to educate me. This guy didn’t quite understand the law.

    https://4.bp.blogspot.com/-J3bGIyTvtOE/WlbSVIb6wEI/AAAAAAABUkg/smrj0ipr74Mw3AxPB2S66AKIbsQ7uRj-gCLcBGAs/s1600/1%2B1_190m_p2arynFFoY1urmckio1_1280.jpg

    Rev.Hoagie (6bbda7)

  280. Zimmerman shoots off at the hip far too much for an absolved man – he should follow the example of the 2nd guy exonerated for the Jeanine Nicarico murders and vanish from the public eye.

    urbanleftbehind (5eecdb)

  281. He’s free to go if he brings the other kind of powdered milk up here.

    urbanleftbehind (5eecdb)

  282. This is the thing another blood price, a foolish young man engages Anna confrontation, and it became a tool for Obama through sharpton and his gang of hooligans

    narciso (d1f714)

  283. Elizabeth Warren chimes in in the possibilities of an Oprah Presidential candidacy. Left unasked – in the Progressive Pantheon of Victims, what is the relative ranking of a self-made billionaire black woman relative to a self-made Harvard Professor of the blonde-hair, blue-eyed Native American persuasion?

    I don’t think Oprah could be beaten, but if he has a rousing economy behind him in 2020, Trump would be the person who could do it. Or maybe Tom Brady, who will have six or seven Super Bowl rings by then.

    Tom-tom Maguire.

    Admiral Ben Bunsen Burner (a70717)

  284. The Iseman case was never cut and dried. The NYT never came straight out and said that John and Vicki were doing the beast with two backs. It said “top advisers” in the McCain campaign were concerned that their friendship gave that appearance. Innuendo.

    nk (dbc370)

  285. Now this wont get the pub it deserves, but it is calm collected and efficient:
    http://www.orlandosentinel.com/news/politics/ct-interior-reorganization-zinke-20180110-story.html

    urbanleftbehind (5eecdb)

  286. Yes and that weasel was John weaver, who went on to scuttle huntsman and kasichs campaign, has like a deluxe limpet mind. Mind you mccain through manafort was able to get deripaska a visa that time

    narciso (d1f714)

  287. I’ve given up trying to figure whose side they are on:
    https://www.conservativereview.com/articles/bob-corker-trying-save-iran-deal-mark-levin-none/

    narciso (d1f714)

  288. — Who makes defamation laws? Politicians or reporters?
    — Politicians.
    — Who tells more lies? Politicians or reporters?
    — Gee, that’s a hard one.
    — That’s what she said.
    — Oh, shut up.

    nk (dbc370)

  289. So you can’t trust the cops the lawyers or the press, that makes for an interesting existence.

    narciso (d1f714)

  290. DRJ: That’s an interesting link (#295), thanks!

    Iseman was a lobbyist. No lobbyist should ever have an expectation of privacy relating in any way to any public official whom they’re lobbying. Based on the overriding and continuing public interest in McCain’s job, Iseman’s job, and both of their respective compliance with legal and ethical standards relating to their jobs, she had to know when she tiptoed up to the edge of the public spotlight that it might reasonably be expected to sometimes shift over onto people (that is to say, lobbyists) like herself. I can see the arguments both ways, but on balance, I’m convinced that she was surely at least a limited-purpose public figure, possibly even a general-purpose public figure — and either way would have had to have met the NYT v. Sullivan standard in this case.

    If she’d been a hotel clerk — someone whose job isn’t all about dealing with elected officials —
    who was accused of having an affair with McCain, then that might have been an entirely different story: The hotel clerk wouldn’t be even a limited-purpose public figure. Or if the accusations had nothing to do with lobbying public officials — if she were defamed by her nextdoor neighbor who falsely claimed that she blends puppies into delicious frape drinks on her back patio — she probably would have been treated in that sort of case as a private figure, notwithstanding her day-job as a lobbyist. The “limited purpose” for treating her as a public figure might not apply in either of those alternative hypothetical sets of facts.

    But lobbyists must expect — and certainly need, as a class — continuous public scrutiny and comment. The pro-First Amendment, pro-robust free political speech policies behind NYT v. Sullivan are very directly implicated by lobbyists.

    All that said: It still looks fairly obvious that the NYT’s implication of an affair was objectively false, which is the essential starting point in any potent defamation claim. With the risks confronting both sides, a fulsome retraction — complete with a loaned incredibly public platform for Iseman to express her views about the case on the NYT’s own website, a contractual compulsion that goes well beyond a rote and garden-variety retraction in helping remedy the damage to her reputation — is a very robust settlement. I commend the litigants and their lawyers for reaching it; in particular, I commend her for not holding out for cash, but instead maximizing her non-cash consideration in the compromise; and I think the purposes of the First Amendment were well served by this clash and its prompt resolution.

    Beldar (fa637a)

  291. That’s not the point, what happened to the reporters involved were they fired, blocked from any other outlet, pshaw they paid some money and gave her some ink.

    narciso (d1f714)

  292. @293

    There are two categories of citizenship: Natural Born (Born a citizen) and Naturalized (Became a citizen after they were born). Obama was born a citizen and is therefore in the first category.

    One of the birther’s many sins is attempting to invent a category, into which Obama falls, that isn’t either of the above.

    Davethulhu (fab944)

  293. @ narciso: When reporters screw up, the remedy — consistent with the First Amendment — lies not in the hands of the courts, but the public. The NYT, like the rest of the MSM, has been bleeding credibility steadily as the result of not firing reporters and editors who screw up. (In fact, I don’t know what happened to the specific reporters and editors involved in the Iseman screw-up, do you?) Certainly that lost credibility has imposed, and will continue, hopefully increasingly, to impose, economic consequences on the NYT. Newsweek was sold for $1. Bezos got the WaPo for a song.

    If you let the courts become the primary remedy for bad behavior in the marketplace of political ideas, you swiftly get dictatorship. We’ve had these arguments going back to John Adams, Thomas Jefferson, and the Alien & Sedition Acts of 1798. Jefferson began by portraying Adams (and, more fairly, Hamilton, who’d sponsored them) as a tyrant and a despot for prosecuting 14 Democratic-Republican fellow-partisans of Jefferson for criticizing the President in violation of the Sedition Act. And in another cosmic irony of American history, when Jefferson followed Adams into the presidency, Jefferson himself became a bitter, vocal, and continuous critic of the press himself. Trump seems to be combining the worst qualities of each of them, in fact, but as long as he keeps it to jawboning, I don’t have a problem with that. When he starts talking about individual citizens and making bald-faced pronouncements of their guilt under federal law (as Jefferson did with Aaron Burr before his treason trial and acquittal) or trying to use the courts to shut down (and especially to exercise prior restraint forbidding) political dissent, a POTUS stops obeying his oath to preserve, protect, and defend the First Amendment.

    I agree with you that the courts don’t provide an adequate remedy or deterrent to bad press behavior, in other words. But that cure would be worse than the disease, and the marketplace of ideas provides a much less toxic, if slower-working, cure (at least in theory and at least sometimes in practice too).

    Beldar (fa637a)


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