[guest post by Dana]

Let’s go!

First new item

Liz Cheney warns Supreme Court:

“When [Trump] now is pushing this idea that a president should have complete immunity against any criminal prosecution for anything he does in office and he’s pushed this appeal to the Supreme Court, I think it’s very important that the Supreme Court recognizes what he’s doing is a delaying tactic,” Cheney said.

“It cannot be the case that a president of the United States can attempt to overturn an election and seize power and that our justice system is incapable of holding a trial and holding him to account before the next election.”

Cheney said she trusts the court will “deal in a responsible and expeditious fashion with this appeal.” However, she added the court taking action that would result in further delay in the public seeing evidence and amount to “suppression of the evidence.”

Second news item

Judge overseeing Trump’s criminal trial in NY speaks out after Trump goes after Judge Merchan’s daughter on social media:

U.S. District Judge for the District of Columbia Reggie Walton…reacted to Trump lashing out at Judge Juan Merchan.

Merchan is presiding over the former president’s falsifying business records trial where the Republican has pleaded not guilty to 34 charges. Trump also attacked Merchan’s daughter in social media posts.

Trump has posted twice about Loren Merchan on Truth Social, the social media platform where the former president has more than 6.8 million followers, including calling her a “Rabid Trump Hater, who has admitted to having conversations with her father about me.”

Trump’s attacks came after Judge Merchan issued a gag order ahead of the former president’s April 15 hush money trial. The order was to prevent Trump from publicly speaking about court staff, jurors, potential witnesses and lawyers from the Manhattan district attorney’s office, or their families…

“We do these jobs because we’re committed to the rule of law and we believe in the rule of law. The rule of law can only function effectively when we have judges who are prepared to carry out their duties without the threat of potential physical harm,” Walton said.

Walton, who has presided over cases related to the January 6 attack on the U.S. Capitol, said he and his daughter have also received threats, including one person who called him and said they know where the judge lives.

“You can’t let that impact on how you live your life, and how you treat litigants who are before you,” Walton said. “Even though threats may be made against you and your family, you still have an obligation to ensure that everybody who comes into your courtroom is treated fairly, regardless of who they are or what they’ve done.

Judge Luttig also weighs in:

The Nation is witnessing the determined delegitimization of both its Federal and State judiciaries and the systematic dismantling of its system of justice and Rule of Law by a single man – the former President of the United States.

In the months ahead, the former president can only be expected to ramp up his unprecedented efforts to delegitimize the courts of the United States, the nation’s state courts, and America’s system of justice,
through his vicious, disgraceful, and unforgiveable attacks and threats on the Federal and State Judiciaries and the individual Judges of these courts.

Never in American history has any person, let alone a President of the United States, leveled such threatening attacks against the federal and state courts and federal and state judicial officers of the kind the former president has leveled continually now for years.

But suffice it to say, never in history has any person leveled such attacks and been met with such passivity, acquiescence, and submissiveness by the nation.

It is a regrettable commentary on our times that a lone federal judge, The Honorable Judge Reggie B. Walton — because no one whose responsibility it is to do so has had the courage and the will — would finally be left no choice but, himself, to express on national television the profound concerns of the entire Federal and State Judiciaries over Donald Trump’s contemptible attacks on the federal and state courts, the judges of these courts and their families, and the other participants in the judicial process.

It is the responsibility of the Supreme Court of the United States in the first instance to protect the federal courts, the federal judges, and all participants in the justice system from the reprehensible spectacle of the former president’s inexcusable, threatening attacks,
just as it is the responsibility of the respective State Supreme Courts in the first instance to protect their courts and their state judges from the same.

Ultimately, however, it is the responsibility of the entire nation to protect its courts and judges, its Constitution, its Rule of Law, and America’s Democracy from vicious attack, threat, undermine, and deliberate delegitimization at the hands of anyone so determined.

Third news item

So this is the softer and more enlightened Taliban, eh?:

The Taliban’s announcement that it is resuming publicly stoning women to death has been enabled by the international community’s silence, human rights groups have said.

Safia Arefi, a lawyer and head of the Afghan human rights organisation Women’s Window of Hope, said the announcement had condemned Afghan women to return to the darkest days of Taliban rule in the 1990s.

“With this announcement by the Taliban leader, a new chapter of private punishments has begun and Afghan women are experiencing the depths of loneliness,” Arefi said.

“Now, no one is standing beside them to save them from Taliban punishments. The international community has chosen to remain silent in the face of these violations of women’s rights.”

Fourth news item

Worried and prepared:

Polish and allied aircraft were scrambled this morning after Russia launched missile strikes on Ukraine, the Operational Command of the Polish armed forces said.

“Polish and allied aircraft are operating in Polish airspace, which may result in increased noise levels, especially in the southeastern part of the country,” the Command said on the social media platform X.

Russia attacked three thermal power plants of Ukraine’s largest private power firm DTEK on Friday, damaging facilities, the firm said.

It comes as Ukrainian president Volodymyr Zelensky predicted which countries Vladimir Putin would attack if he was successful in Ukraine – including Germany.

Zepensky’s predictions:

Zelensky predicts which countries Putin would target after Ukraine

Ukrainian president Volodymyr Zelensky has warned which countries he believes Vladimir Putin will target next if he is victorious in Ukraine.

Kazakhstan would be next, followed by the Baltic states, Poland and then Germany, Mr Zelensky claims.

“Even tomorrow, the missiles can fly to any state,” he told US broadcaster CBS. “For him, we are a satellite of the Russian Federation,.

“At the moment, it’s us, then Kazakhstan, then Baltic states, then Poland, then Germany. At least half of Germany.”

Fifth news item

Berkeley bigots shamefully spout off:

A Berkeley City Council meeting went off the rails this week as pro-Palestinian protestors heckled an 89-year-old Holocaust survivor as she urged the council to pass a resolution in support of Holocaust Remembrance Day.

The Jewish Community Relations Council posted clips from the Tuesday meeting to social media, which quickly went viral and showed the moment that the meeting had to stop as Susanne DeWitt was shouted down.

The Jewish Chronicle reported on the meeting Thursday, writing, “A Berkeley City Council meeting on Tuesday descended into chaos as a mob of pro-Palestine demonstrators harassed council members and Israel supporters, calling them ‘Zionist pigs’, ‘genocide enablers’, ‘murderers’ and ‘money suckers’.”

…

DeWitt was allowed to finish by the councilman running the meeting and she added that Hamas’s attack led to the “murder of 1200 Israelis and the brutal torture and rape of women.”

“Lies!” shouted the protestors. The meeting then devolved into shouting as the councilman leading it called for a break.

Have a great weekend.

—Dana

U.S. District Judge Reggie Walton has issued an eye-opening order today directly calling into question the credibility of Attorney General William Barr, based on Barr’s misleading summary of the Mueller report.

That Barr spun the report in a dishonest fashion is not news, of course. On May 3, 2019, I wrote a long post detailing how Barr had misled the American people about the contents of the Mueller report. My post cited and concurred with another detailed article by Benjamin Wittes on the same topic.

But to hear these things spoken by a federal judge, in a published order, is another level of magnitude.

Judge Walton is hearing FOIA cases brought by the Electronic Privacy Information Center as well as by Buzzfeed and our old unreliable friend Jason Leopold. Today Judge Walton ruled that he will independently review whether the redactions in the report are proper. Judge Walton explains that when the government seeks to keep information secret and assures the court that the secrecy is for legitimate reasons, a judge will conduct in camera review of the material (review of material privately in the judge’s chambers) when there is evidence — or at least a suspicion in the judge’s mind — that the government has acted in bad faith, such that the judge cannot completely rely on the government’s representations. Judge Walton says that is the case with the redactions in the Mueller report, and sets forth in detail why he can’t rely on Barr’s representations that the redactions are for legitimate reasons:

The Court has grave concerns about the objectivity of the process that preceded the public release of the redacted version of the Mueller Report and its impacts on the Department’s subsequent justifications that its redactions of the Mueller Report are authorized by the FOIA.

. . . .

The speed by which Attorney General Barr released to the public the summary of Special Counsel Mueller’s principal conclusions, coupled with the fact that Attorney General Barr failed to provide a thorough representation of the findings set forth in the Mueller Report, causes the Court to question whether Attorney General Barr’s intent was to create a one-sided narrative about the Mueller Report — a narrative that is clearly in some respects substantively at odds with the redacted version of the Mueller Report. Attorney General Barr’s decision to not only conduct a press conference but also issue his April 18, 2019 letter immediately prior to releasing the redacted version of the Mueller Report to the public on April 18, 2019, also causes the Court concern.

. . . .

[T]he Court has reviewed the redacted version of the Mueller Report, Attorney General Barr’s representations made during his April 18, 2019 press conference, and Attorney General Barr’s April 18, 2019 letter. And, the Court cannot reconcile certain public representations made by Attorney General Barr with the findings in the Mueller Report. The inconsistencies between Attorney General Barr’s statements, made at a time when the public did not have access to the redacted version of the Mueller Report to assess the veracity of his statements, and portions of the redacted version of the Mueller Report that conflict with those statements cause the Court to seriously question whether Attorney General Barr made a calculated attempt to influence public discourse about the Mueller Report in favor of President Trump despite certain findings in the redacted version of the Mueller Report to the contrary.

These circumstances generally, and Attorney General Barr’s lack of candor specifically, call into question Attorney General Barr’s credibility and in turn, the Department’s representation that “all of the information redacted from the version of the [Mueller] Report released by [ ] Attorney General [Barr]” is protected from disclosure by its claimed FOIA exemptions.”

Wow. When you are Attorney General Barr, one phrase you don’t like to see in a federal judge’s published opinion is “Attorney General Barr’s lack of candor.”

Judge Walton concludes:

[T]he Court must conclude that the actions of Attorney General Barr and his representations about the Mueller Report preclude the Court’s acceptance of the validity of the Department’s redactions without its independent verification.”

That is just a stunning rebuke of the nation’s highest law enforcement official by a federal judge. (In case you are tempted to scream Obama Judge! or Unqualified Judge! please note that Judge Walton was appointed by George W. Bush and served for a time as the Presiding Judge of the United States Foreign Intelligence Surveillance Court.)

[Guest post by Aaron Worthing; if you have tips, please send them here.]

So the FCC has decided today to promulgate something called net neutrality.  I will admit I find the concept to be a solution in search of a problem.  It is exceedingly rare that the problems they cite, of network providers cutting off services like Netflix and the like to harm their competitors, even happens.  Shouldn’t we wait for this to turn into a real problem before we even think of regulating it?

But in general the Obama administration has taken the attitude that pretty much everyone and everything should be subject to regulation.  This is what I call “Democratic Totalitarianism.”

Let me give you a concrete example.  My industry (health care) and every lawyer in this country has been struggling to deal with the issue of the Red Flags rules.  These rules say that every single creditor has a legal duty to make sure his debtors are actually who they say they are.  If identify theft occurs, then the creditors are liable to the real persons being impersonated for any damages caused by this undetected identity theft.

That sounds reasonable (although debatable as policy), until you learn how broad the FTC’s definition of “creditor” was.  A “creditor,” of course, is a “person” (including artificial persons like corporations) who extended credit on a regular basis.  And what is “credit?”  According to the FTC it included any delay between rendering a good and service and collecting on it.  From the FTC’s February 4, 2009 letter:

[T]he FTC staff believes that professionals, including physicians, who regularly bill their clients, customers, or patients for their services after those services are rendered, are “creditors” under the ECOA.

Now stop and think about that for a moment.  If any delay between the service provided and payment makes you a creditor, well, then who isn’t covered by that?  Who isn’t a creditor under this interpretation of the statute?  Any person who gets paid on a semi-monthly or bi-weekly basis is a creditor.

Well, fortunately Judge Walton, in the U.S. District Court for the District of Columbia didn’t agree:

Judge Reggie Walton said he had trouble accepting the FTC’s definition of a creditor. He said that under their interpretation, a plumber who charges a customer after working on a toilet for two days would be also be considered a “creditor.”

And so Walton went on to rule against the FTC.  And anyone who reads the court’s opinion will quickly see how far off the reservation the court had gone in this matter.  Since then the case has been affirmed on appeal and Congress passed a law overruling the FTC, thank God.  But this is the needless chaos the Obama administration has inflicted upon us.

So let’s return back to the example of the FCC and the net neutrality thing.  Now never mind that the Supreme Court has cast serious doubt on the ability of the Congress to pass laws regulating this kind of activity, as a matter of law it looks even grimmer than that.  They were told specifically by the D.C. Circuit that Congress did not even give them the authority to do this.  You can read the opinion, here.  So even if it was constitutional, they still couldn’t do it.

So what this action is, is saying to the D.C. Circuit, “we don’t care what you think, we are going to do it anyway.”  It is a spit in the face.  Shouldn’t they have settle the issue of whether they could do this before trying to do this?

I won’t comment on the substantive issue, because I have not read the regulation at issue.  Even if it is as benign as its advocates say, I fear this will be the nose under the camel’s tent.  Right now, I am much more afraid of the government than Comcast.

And I want to pause and say something about the headlines on this.  For instance, in my linked story it says: FCC Gives Government Power to Regulate Web Traffic.  Well, excuse me a second, but the FCC can’t give the government any power.  The people give the government power, and the government gives that power to the FCC, not the other way around.  And how many times did people say that the FCC “passes” net neutrality?  Congress passes laws.  The FCC promulgates regulations.  But what we are seeing in the very creepy tendency in the use of our language to suggest that somehow the administrative state is greater than Congress.  The tail is wagging the dog.

Update: Thanks to a prompt from JD, I learn that even if I wanted to, I couldn’t comment on the order because no one has seen it outside of the FCC.  Well, that certainly increases my confidence that this is a good idea.  Btw, you can read the proposed orders, which might or might not look anything like the final order, here. Just chug some caffeine before you try.

[Posted and authored by Aaron Worthing.]