Patterico's Pontifications

12/8/2020

Judge Sullivan Grants Flynn Dismissal Based on Trump Pardon; Suggests He Otherwise Would Have Denied the Government’s Motion to Dismiss

Filed under: General — Patterico @ 7:45 pm



Good for him. He has no choice but to dismiss the charges, but his analysis of the Government’s original and nakedly corrupt motion to dismiss is excellent and suggests that he would have done the right thing if given the chance.

However, while not conclusory, many of the government’s reasons for why it has decided to reverse course and seek dismissal in this case appear pretextual, particularly in view of the surrounding circumstances. For example, Mr. Flynn was serving as an adviser to President Trump’s transition team during the events that gave rise to the conviction here, and, as this case has progressed, President Trump has not hidden the extent of his interest in this case. According to Mr. Gleeson, between March 2017 and June 2020, President Trump tweeted or retweeted about Mr. Flynn “at least 100 times.” Amicus Br., ECF No. 225 at 66. This commentary has “made clear that the President has been closely following the proceedings, is
personally invested in ensuring that [Mr.] Flynn’s prosecution ends, and has deep animosity toward those who investigated and prosecuted [Mr.] Flynn.” Id.

At the September 29, 2020 motion hearing, Mr. Flynn’s counsel, in response to the Court’s question, stated that she had, within weeks of the proceeding, provided the President with a brief update on the status of the litigation. Hr’g Tr., ECF No. 266 at 56:18-20. Counsel further stated that she requested that the President not issue a pardon. Id. at 56:23-24. However, the President has now pardoned Mr. Flynn for the actions that instigated this case, among other things. Ex. 1 to Consent Mot. Dismiss, ECF No. 308-1 at 1. And simultaneous to the President’s “running commentary,” many of the President’s remarks have also been viewed as suggesting a breakdown in the “traditional independence of the Justice Department from the President.” See, e.g., Amicus Br., ECF No. 225 at 67-68; id. at 68 (quoting Excerpts from Trump’s Interview with the Times, N.Y. Times (Dec. 28, 2017), https://www.nytimes.com/2017/12/28/us/politics/trump￾interview-excerpts.html) (reporting President Trump’s statement that he enjoys the “absolute right to do what I want to do with the Justice Department”).

Judge Sullivan demolishes the Government’s stated reasons for the dismissal, dismantling the claims of lack of materiality and inability to prove the case as meritless. You’ll have to read his opinion for the full analysis.

The demagogues are out in full force:

Being a humorless literalist who simply calls them as he sees them, I called Cotton a dangerous demagogue and left it at that. Popehat had the winning and far more humorous reaction:

What has become of the Republican party??

Trump Continues To Take Advantage Of Every Opportunity to Dispute Election Results

Filed under: General — Dana @ 1:51 pm



[guest post by Dana]

A Trump-hosted vaccine summit today took an election detour when the President, after being asked by a reporter why the Biden transition team was not on hand given that they will be the administration involved in the distribution of the vaccine, again falsely asserted that he won the election:

Well, we’re going to have to see who the next administration is because, uh, we won in the swing states, and there were terrible things that went on.

So we’re going to have to see who the next administration is…hopefully, the next administration will be the Trump administration because you can’t steal hundreds of thousands of votes.

You can’t have fraud and deception and all of the things that they did, and then slightly win a swing state. And you just have to look at the numbers, look at what’s been on tape, look at all the corruption, and we’ll see…you can’t win an election like that. So hopefully, the next administration will be the Trump administration…

Now let’s see whether or not somebody has the courage, whether it’s a legislator or legislatures or whether it’s a justice of the Supreme Court or a number of justices of the Supreme Court. Let’s see if they have the courage to do what everybody in this country knows is right.

…I received almost 75 million votes, the highest number of votes in the history of our country for a sitting president. 12 million more than the 63 million we received four years ago. President Obama received 3 million less in his second term, and he won easily. I received 12 million more, which by the way is a record. 12 million more. And they say that when the numbers came out, and the numbers came through machines, and all of those ballots were taken away and added, all you have to do is turn on your local television set and you’ll see what happened with thousands of ballots coming out from under tables…with all of the terrible things you saw, all you have to do is take a look…

(video at the link.)

And so it goes…

–Dana

Fired Cybersecurity Chief Sues Trump Campaign, Lawyer Who Said He Should Be Shot (ADDED)

Filed under: General — Dana @ 9:31 am



[guest post by Dana]

Remember Chris Krebs? Last month, an angry President Trump fired him for doing his job:

Trump tweeted Tuesday night that Krebs had put out a statement concerning the election that was “highly inaccurate,” apparently a reference to a joint statement Thursday from CISA, the Election Assistance Commission and groups that represent the chief election officers in every state. The statement read, in part, “There is no evidence that any voting system deleted or lost votes, changed votes, or was in any way compromised.”

Today, the New York Times reports that Krebs has filed a lawsuit against the Trump campaign, lawyer Joseph DiGenova (who demanded that Krebs be “drawn and quartered”) and Newsmax:

On Tuesday, Mr. Krebs…filed a lawsuit against Mr. DiGenova accusing him and the Trump campaign of defamation and the infliction of emotional distress.

The lawsuit, which seeks monetary damages and the removal of the threatening video from the Newsmax archives, also made a far more extraordinary claim: that Mr. Trump, members of his legal team and Newsmax have been engaging in “a calculated and pernicious conspiracy” to defame and injure not just Mr. Krebs but other members of the Republican Party who have stood up against the president’s baseless claims of fraud.

“Newsmax, the campaign, and DiGenova have a symbiotic relationship,” the lawsuit says. “Newsmax disseminates and amplifies the campaign’s and DiGenova’s attacks on perceived political threats and allegations of election stealing, which pleases viewers, prompts endorsements from President Trump, increases ratings, supports the political goals of the campaign, and helps raise more money from duped supporters.”

An interesting note about Newsmax, currently riding high since becoming the latest media outlet to carry water for Trump:

Newsmax, which was accused in the suit of aiding and abetting by amplifying Mr. DiGenova’s threat, has recently capitalized on Mr. Trump’s displeasure with Fox News and devoted itself to carrying the president’s unsupported claims of massive fraud in the elections. Its prime-time ratings have soared in the process. “People want something that tends to affirm their views and opinions,” Christopher Ruddy, its chief executive, told The New York Times last month.

Additionally:

The suit notes…that the president has attacked Governors Doug Ducey of Arizona and Brian Kemp of Georgia for failing to assist him in his attempts to overturn the vote counts in their states. It also points out that Mr. Trump and his legal team sought to persuade Republican leaders in states like Pennsylvania to go along with their scheme to “ignore certified election results” and instead have state lawmakers appoint delegates to the Electoral College.

And unsurprisingly, given the similar experiences of other election officials and employees whose professional integrity angered the President and his base, the lawsuit claims that after Krebs was fired, he too began to receive death threats. As a result, he and his family were forced to flee their home:

In his suit, Mr. Krebs said that after Mr. DiGenova attacked him on Newsmax, he received death threats in tweets and emails that labeled him a traitor. Because of the threats, Mr. Krebs said, he and his family were forced to leave their home and Mr. Krebs’s children were terrified.

How terrified were they?:

One of Krebs’ children asked him, “Daddy’s going to get executed?” the suit says.

I’m getting tired of hearing myself repeat the same old refrain but, it is a disgrace that the President of the United States continues to play this dangerous game of making baseless claims of a rigged election. It is a disgrace that he encourages his supporters to join him in protesting the election results. Decent Americans doing their jobs with integrity and professionalism are being endangered as a result of speaking the truth. The President’s behavior is an insult to every American and to our electoral process, and it needs to stop. Especially when people are receiving death threats as a result of him stoking the flames of bitterness and resentment like he just did at his rally in Georgia:

“We’re all victims. Everybody here, all these thousands of people here tonight, they’re all victims. Every one of you.”

Finally, here is an excerpt of an interview Krebs did with Jonathan Swan at Axios:

Christopher Krebs, the nation’s former top election security official, tells “Axios on HBO” that President Trump is spreading disinformation, which he described as a form of domestic “threat” that he swore an oath to defend against in his job.

“The caller was inside the house,” Krebs told me. “The president is a big part of the disinformation that’s coming out there about the rigged election, but there are absolutely others.”

Asked how he grappled with Trump’s false claims while he was still working for him, Krebs said, “One of the questions we asked: ‘What would we do if the Russians were doing this?'”

“The oath that we pledged coming into office as a federal official is that you uphold and defend the Constitution from threats foreign and domestic. We upheld our oath, carried it out.”

When asked the obvious follow-up — is President Trump a domestic threat? — Krebs replied: “There is disinformation that he is spreading. I mean, disinformation is one type of threat.”

And like me, he would like to see real pushback on these continued attacks:

“Republican leadership needs to stand up and say that, ‘This is not, this is just not what we need to be telling the American people right now.”

“We need to be restoring confidence in the election. We need to be restoring confidence in democracy. We all just for some reason think that democracy is resilient and can withstand this sort of attack.”

“I actually think that democracy’s quite fragile. And when the institutions themselves are under attack from the inside, as you said, that’s pretty close to an existential issue. And so we need the other parts of, you know, the three-part government to actively push back and actively engage.”

I would also ask Republican leadership: if this isn’t a hill worth dying on, then for heaven’s sake, what is?

[Ed. Was Joe DiGenova’s comment an actual death threat, or was it just hyperbole? Is defamation the way to go in this lawsuit, or would unlawful termination be a more effective route?]

ADDED: Popehat explains why he doesn’t think the lawsuit is not the best of ideas:

OK, let me expand on why Mr. Krebs’ lawsuit against Newsmax, Joe DiGenova, and the Trump Campaign is unlikely to succeed and a bad idea.

Two key reminders: (1) the law isn’t what you want it to be, and (2) the law permits despicable things.

Mr. Krebs sues for two things: Defamation and Intentional Infliction of Emotional Distress (he also sues Newsmax for aiding and abetting, but that’s non-substantive — it’s just trying to put Newsmax on the hook for those claims.)

Though the complaint is extremely factually detailed, this is the heart of Mr. Krebs’ defamation claim: that DiGenova, on behalf of the Campaign, implied that he had committed treason, because drawing and quartering is the historical penalty for treason.

But defamation is making a provably false statement of fact about someone. Hyperbole, invective, insult, and crass political rhetoric aren’t defamatory because they’re not understood to be statements of fact, especially in the context of someplace like Newsmax.

Here, there’s so such provably false statement of fact. NOBODY understands DiGenova to be accusing Krebs of literal treason of the sort defined in the constitution. Rather it’s clear it’s FIGURATIVE treason — disloyalty to Trump. Krebs EMPHASIZES THIS IN HIS OWN COMPLAINT.

DiGenova’s figurative accusation of treason is despicable and un-American, but it’s not a provably false accusation of fact.

Next, intentional infliction of emotional distress.

IIED was once seen as an end-run around the limits of defamation. The Supreme Court shut that door most of the way in Hustler v. Falwell, and slammed it shut in Snyder v. Phelps, the case about Westboro Baptist Church picketing soldiers’ funerals.

Post-Snyder, the rule seems to be that public forum speech on a matter of public interest that doesn’t fall into another First Amendment exception is protected by the First Amendment from IIED claims. This qualifies.

Note that Krebs does not sue for threats or for inciting threats. Nor, likely, could he. This was not a true threat — a threat that a reasonable person would interpret as a statement by DiGenova expressing intent to do harm.

Nor, likely does it qualify as incitement outside First Amendment protection, as it was not intended and likely to cause imminent lawless action. That’s likely why Krebs didn’t try to pursue those theories.

Maryland has a weak anti-SLAPP, so Krebs may escape that. But the lawsuit is a tactical error. It just draws more attention to DiGenova’s nutty conspiracy theories, and it’s very unlikely to succeed.

Moreover, if DiGenova is nutty enough, he could litigate it rather than dismiss it and use it as a vehicle to conduct wide-ranging and disruptive discovery into all of his election conspiracy theories. That’s why you don’t sue nuts.

There could be a consequence for DiGenova. He’s a member of the bar and represents himself as part of the Campaign’s legal team, and the Campaign is embroiled in litigation that involves the subjects he’s talking about, and he’s just uttered something outrageous that at the very most charitable is a figurative call for the death of a potential witness on national television. That may well be bar-sanctionable. (Note that the application of the First Amendment to bar discipline is hazy.)

To repeat: the law doesn’t do what you want, and the law permits horrific things. This is one of them. The moral equities here are stark. Krebs is a good man and DiGenova and Newsmax are evil. Their conduct is despicable and un-American.

However, the First Amendment protects saying despicable and un-American things, even if those things might encourage other despicable and un-American people to make threats — unless it is likely and intended to cause imminent lawless action.

“He should have known that using such harsh rhetoric about me would cause people on the internet to threaten me” is not a good basis for lawsuits and can be pointed at anyone. That’s why we need First Amendment guideposts.

Go to Popehat’s Twitter thread for supporting documents/references.

A copy of Chris Krebs’ complaint can be found here.

–Dana

UPDATE BY PATTERICO: I read the beginning of this post intending to add an update saying that while I think Krebs has been treated despicably, this lawsuit is meritless. I see Dana has shown us that Popehat did it for me, so . . . I work here is done.

[sic]


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