But He's Not Gone Yet

Making

Attorneys

Get

Attorneys

Questions:

• 128-page opinion? Is that a lot? Seems like a lot
• Is a disbarred attorney allowed to do any lawyer stuff, other than actually practicing law?

John Eastman, architect of Trump’s 2020 election plot, should be disbarred, judge rules

“The most severe available professional sanction is warranted to protect the public,” Judge Yvette Roland wrote.

A California judge on Wednesday recommended the disbarment of John Eastman, calling to revoke the law license of one of former President Donald Trump’s top allies in his failed last-ditch gambit to subvert the 2020 election.

Judge Yvette Roland, who presided over months of testimony and argument about the basis of Eastman’s fringe legal theories, ruled that the veteran conservative attorney violated ethics rules — and even potentially criminal law — when he advanced Trump’s efforts to overturn the election results based on weak or discredited claims of fraud.

Eastman plans to appeal Roland’s decision to a panel of judges, an interim step before the matter reaches the state Supreme Court. But while his appeal is pending, the ruling forces his law license into “inactive” status, meaning he can no longer practice law in California.

“Given the serious and extensive nature of Eastman’s unethical actions, the most severe available professional sanction is warranted to protect the public and preserve the public confidence in the legal system,” Roland ruled.

Roland’s 128-page opinion was a lacerating rebuke of Eastman’s conduct and his subsequent lack of remorse. She concluded that he made knowingly flimsy claims of fraud and irregularities in legal filings on Trump’s behalf, including his brief for Trump in a Supreme Court fight.

The judge walked through Eastman’s extensive involvement in Trump’s efforts to overturn the 2020 election results, from his early lawsuits that failed to gain traction to his bid to solicit GOP state legislatures to send “alternate” electors to Congress, a last-gasp bid to keep Trump in power. At every turn, Roland said, Eastman ignored evidence that was unfavorable to his case and accepted at face value claims of fraud or misconduct aimed at sowing doubt about the election results.

“He turned a blind eye to any information that would not support his position of election fraud,” Roland wrote.

In all, Roland found Eastman culpable for 10 of 11 charges that state bar investigators brought against him, including misleading courts, lack of candor and, most notably, plotting with Trump to derail the transfer of power.

“Eastman conspired with President Trump to obstruct a lawful function of the government of the United States; specifically, by conspiring to disrupt the electoral count on January 6, 2021,” Roland ruled.

Eastman’s attorney, Randall Miller, said Eastman still believes his work on Trump’s behalf in 2020 “was based on reliable legal precedent, prior presidential elections, research of constitutional text, and extensive scholarly material.” He also noted that Eastman is facing criminal charges in Georgia and has now lost the ability to finance his defense with his work as an attorney.

“Any reasonable person can see the inherent unfairness of prohibiting a presumed-innocent defendant from being able to earn the funds needed to pay for the enormous expenses required to defend himself, in the profession in which he has long been licensed,” Miller said. “That is not justice and serves no legitimate purpose to protect the public.”

Roland found, in contrast, that the state bar investigators had failed to convincingly show that Eastman’s remarks to a Jan. 6 rally — which preceded the violent assault on the Capitol — played a role in ginning up the subsequent attack.

Roland said her disbarment recommendation was in part based on Eastman’s refusal to express regret and his attacks on the proceedings against him as politically motivated.

“Eastman has exhibited an unwillingness to acknowledge any ethical lapses regarding his actions, demonstrating an apparent inability to accept responsibility,” she wrote. “This lack of remorse and accountability presents a significant risk that Eastman may engage in further unethical conduct, compounding the threat to the public.”

Eastman testified for hours during his disbarment trial, claiming that he relied on a cadre of statisticians and data analysts to conclude that the 2020 election was rife with misconduct and that state legislatures in a handful of swing states should step in to replace Joe Biden’s electors with Trump’s. But Roland said those analysts’ claims were easily refuted by expert testimony, and Eastman should have known better than to rely on them.

In addition, Roland concluded that Eastman stretched and contorted even his own outlier theories to pressure then-Vice President Mike Pence to single-handedly block Joe Biden’s victory, even when no state legislatures had signed onto the effort.

Eastman’s pending disbarment compounds the legal trouble he’s facing in other states. He’s been charged alongside Trump and other allies in Fulton County, Georgia, as a member of an alleged racketeering conspiracy aimed at corrupting the results of the 2020 election in the state. He was also identified, but not named, in Trump’s federal indictment in Washington, D.C., as one of six unindicted co-conspirators assisting Trump’s bid to seize a second term.

Eastman’s trial, which spanned portions of six months last year, was the most exacting test of the legal theories he employed that nearly upended the transfer of presidential power for the first time in American history. Witnesses for the state bar discipline authorities included top election officials in several states challenged by Trump, constitutional law expert Matthew Seligman and even Eastman himself.

Eastman first came into Trump’s orbit in September 2020, when Trump tasked another lawyer, Cleta Mitchell, to put together a team of election lawyers to prepare for post-election challenges. In early November 2020, Mitchell encouraged Eastman to craft a legal argument in favor of state legislatures overturning election results.

By early December, Eastman had been engaged by the Trump campaign to represent Trump in ongoing legal challenges to the election results in Georgia and at the Supreme Court.

As Trump’s legal challenges faltered, Eastman turned his focus to the Jan. 6, 2021, session of Congress, when the House and Senate were required to meet — in a session overseen by Pence. Eastman drafted memos describing “scenarios” in which Pence asserted the unilateral authority to refuse to count some of Biden’s presidential electors, forcing a delay in the election and giving more time for state legislatures to consider reversing Trump’s defeat.

Pence, however, refused to adopt Eastman’s theory, saying it would be illegal and unconstitutional, and ultimately upheld the certified election results in all 50 states, ensuring Biden’s victory. Eastman famously argued with Pence’s legal counsel, Greg Jacob, by email, encouraging Pence to reconsider his position, even as rioters attacked the Capitol and forced Pence and Congress into hiding.

A Matter Of Language

Law is all about how you say things. Whether or not someone will hold themselves to their word is a different thing.

And the problem is that no matter what someone says or promises, they can always just refuse to honor their word. 

Donald Trump has made a career out of that shit.

The rest of us (ie: normal people) are bound by a sense of honor. We get together, and we choose people we think we can trust to come up with rules that govern our behavior, and we agree to live within those rules because we're honorable people - honor is what makes civilization possible.

Anyway, Glenn Kirschner explains some of the weirdness we hear in the language of the law.

Worth noting: The Oklahoma City bombing and Jan6 were both attacks carried out by homegrown terrorists. ie: Violence in the name of political gain.

Merrick Garland put together the toolkit necessary to try and to convict and then execute the bomber, Timothy McVeigh - and put his accomplice, Terry Nichols, away for life without parole.

Merrick Garland is probably the guy we need on this. His investigation and pursuit of Trump and his gang will likely mold US policy on Domestic Terrorism for decades to come.

Newspeak

As always, DeSantis couches this bullshit in language that makes it sound reasonable - like "conservatives" are sorely aggrieved, and oppressed by a majority of people - who happen to have thought it through, and reached conclusions that don't line up with what Daddy State assholes have to get people to buy into.

It should seem a little odd that the folks who make all kinds of noise about "free markets" bitch even louder when the marketplace of ideas cuts against them.

But it's not odd at all. A guy like DeSantis plays the suckers for the suckers he knows they are, because they fall for this shit every fuckin' time.

The Hill:

Florida Gov signs law requiring students, faculty be asked their political beliefs

Florida Gov. Ron DeSantis (R) on Tuesday signed legislation mandating public colleges and universities survey students and faculty about their beliefs in an effort to promote intellectual diversity on campuses.

“We obviously want our universities to be focused on critical thinking, academic rigor,” DeSantis said during a news conference Tuesday, according to the Naples Daily News.

“We do not want them as basically hotbeds for stale ideology,” he said.

“It used to be thought that a university campus was a place where you’d be exposed to a lot of different ideas,” DeSantis said. “Unfortunately, now the norm is, these are more intellectually repressive environments,” he added.

Under House Bill 233, surveys would be conducted annually on campuses to assess viewpoint diversity and intellectual freedom, and determine “the extent to which competing ideas and perspectives are presented,” and whether students and faculty “feel free to express beliefs and viewpoints on campus and in the classroom.”

The bill does not specifically say what will be done with survey results, but DeSantis suggested budget cuts could be imminent if universities and colleges are found to be “indoctrinating” students.

“That’s not worth tax dollars and that’s not something that we’re going to be supporting moving forward,” the governor said.

The legislation, which goes into effect July 1, also aims to ensure students are being shown ideas that they “may disagree with or find uncomfortable.”

The measure was among three education bills signed by DeSantis Tuesday. Other measures included an expansion of civics education for K-12 schools, including instruction about the perils of communist and totalitarian governments.

Today's Today

Internment ends

On December 18, 1944, the Supreme Court handed down two decisions on the legality of the incarceration under Executive Order 9066. Korematsu v. United States, a 6–3 decision upholding a Nisei's conviction for violating the military exclusion order, stated that, in general, the removal of Japanese Americans from the West Coast was constitutional. However, Ex parte Endo unanimously declared on that same day that loyal citizens of the United States, regardless of cultural descent, could not be detained without cause. In effect, the two rulings held that, while the eviction of American citizens in the name of military necessity was legal, the subsequent incarceration was not—thus paving the way for their release.

Having been alerted to the Court's decision, the Roosevelt administration issued Public Proclamation No. 21 the day before the Korematsu and Endo rulings were made public, on December 17, 1944, rescinding the exclusion orders and declaring that Japanese Americans could return to the West Coast the next month.

Although WRA Director Dillon Myer and others had pushed for an earlier end to the incarceration, the Japanese Americans were not allowed to return to the West Coast until January 2, 1945, being postponed until after the November 1944 election, so as not to impede Roosevelt's reelection campaign. Many younger internees had already "resettled" in Midwest or Eastern cities to pursue work or educational opportunities. (For example, 20,000 were sent to Lake View in Chicago.) The remaining population began to leave the camps to try to rebuild their lives at home. Former inmates were given $25 and a train ticket to their pre-war places of residence, but many had little or nothing to return to, having lost their homes and businesses. When Japanese Americans were sent to the camps they could only take a few items with them and while incarcerated they could only work for meager jobs with a small monthly salary of $12-$19. So when internment ended Japanese Americans not only couldn't return to their homes and businesses but they had little to nothing to survive on, let alone enough to start a new life. Some emigrated to Japan, although many of these individuals were "repatriated" against their will. The camps remained open for residents who were not ready to return (mostly elderly Issei and families with young children), but the WRA pressured stragglers to leave by gradually eliminating services in camp. Those who had not left by each camp's close date were forcibly removed and sent back to the West Coast.

Nine of the ten WRA camps were shut down by the end of 1945, although Tule Lake, which held "renunciants" slated for deportation to Japan, was not closed until March 20, 1946. Japanese Latin Americans brought to the U.S. from Peru and other countries, who were still being held in the DOJ camps at Santa Fe and Crystal City, took legal action in April 1946 in an attempt to avoid deportation to Japan.

Changing Times

Axios:

All the old vices — from sex to gambling to drugs — are quickly becoming legal, as both society and the criminal justice system rethink their values.

The big picture:

This amounts to an under-the-radar shift in how society treats what have long been thought of as victimless crimes — behaviors that might not harm anyone who isn't participating, but that are considered to offend social morals.

What's happening:

• When the NFL season began last month, fans in more than two dozen states and the District of Columbia were legally allowed to place bets on games. Five more states are projected to allow it by the end of the NFL season according to the American Gaming Association.
• The Manhattan district attorney's office announced earlier this year that it would stop prosecuting sex work and unlicensed massage, joining a number of other jurisdictions that have moved to partially decriminalize sex work.
• Last November, after the passage of a ballot initiative, Oregon became the first state to decriminalize possession of small amounts of all illicit drugs, while four more states — Arizona, New Jersey, South Dakota and Montana — joined 11 others that have legalized the recreational use of cannabis.

Background:

• The definition of "vice" is always shifting because society's morality is always shifting.
• Generally, part of what makes a vice a vice is that a lot of society considers it questionable, but a lot of society also participates in it.

By the numbers:

• An estimated 45.2 million people — more than 12% of the country — plan to wager on the NFL this season, up from 32% the year before, according to the AGA.
• In a 2019 Pew survey, 18% of U.S. adults reported they had used cannabis over the past year — a drug that is still illegal under federal law.
• A 2020 poll by Data for Progress found 52% of respondents at least somewhat support decriminalizing the buying and selling of sex between consenting adults, compared to just 24% in a similar 1978 poll.

Between the lines:

• Legalizing or at least decriminalizing activities that millions of Americans engage in — and millions more tacitly tolerate — can reduce arrests and prosecutions that disproportionately affect people of color, while also freeing up police and courts to focus on crimes that harm more people.
• If regulated and taxed, it can also divert substantial revenue to government coffers. Legal gambling generates nearly $700 million in tax money at the state level, while legal marijuana has generated nearly $8 billion in tax revenue since states first began allowing recreational use.
• Bringing an activity out of the black market can also starve criminal organizations of revenue and help protect individuals who will engage in it — a key argument for decriminalizing sex work.

The other side:

• Opponents question whether vices are truly "victimless crimes" and raise concerns about the unintended consequences of allowing activities that, if taken to the extreme, can produce both individual and social harm.
• A 2020 study found recreational cannabis legalization in Washington state in 2012 was followed by an uptick in the likelihood that teens would use marijuana, though other research has found no clear connection.
• Between 3% and 6% of U.S. adults are considered to have a gambling problem, and one study found the rate doubles among people who live within 10 miles of a gaming establishment.
• Experts also have long worried that legalizing sports betting can lead to more opportunities for fixing games, eroding the integrity of the sport.
• Sex work presents the biggest questions of all. Some experts doubt that selling sex can ever be truly consensual and fear that decriminalization inadvertently puts sex workers at greater risk from clients.

What to watch:

... whether legalization and decriminalization are followed by additional support for the social and personal consequences of vices.

Even advocates for Oregon's drug decriminalization worry far too little funding has been allocated to treatment and recovery.

The bottom line:

50 years after President Richard Nixon declared the War on Drugs, American attitudes toward and laws about activities that have long been classified as vices are changing — and with it, the assumption that it's the government's role to police public morality.

OK - One More Time

In what would be nice to think of as one last desperate Hail Mary before the wheels come completely off and even the hard right fanatics and zealots throw up their hands and say "Holy fuck, you guys, you gotta stop this weird shit", here comes the Gilead Wannabe Gang again.

WaPo (pay wall)

Texas governor signs abortion bill banning procedure as early as six weeks into pregnancy

Texas Gov. Greg Abbott (R) on Wednesday signed legislation banning abortions in the state as early as six weeks into a pregnancy, a measure slammed by critics as one of the strictest and most extreme measures in the nation and hailed by antiabortion supporters as a landmark achievement.

The Texas bill known as S.B. 8, described as a “heartbeat ban” abortion measure, prohibits the procedure the moment a fetal heartbeat has been detected. By banning abortion after the six-week mark, many women in Texas who are not even aware they are pregnant will not be allowed to get the procedure done in the state. The bill, which goes into effect Sept. 1, does not include exceptions for women impregnated as a result of rape or incest, but offers a provision for medical emergencies.

Abbott, who had publicly offered his support of the bill, celebrated what he deemed a victory for Texans while surrounded by Republicans gathered to watch him sign the proposal in Austin: “The heartbeat bill is now law in the Lone Star State.”

The piece goes on to describe the gruesome details of a religiously diseased constituency's attempt to impose their shitty paranoid freedom-hating woman-hostile rules on everybody but themselves.

Some things to keep in mind:

1. These stoopid laws do not stop abortions - they just make abortions unsafe
2. These stoopid laws do not stop abortions for anyone with the price of a plane ticket
3. These stoopid laws just make it harder for poor people to get ahead

So here it is again:

eggs ain't chickens

-

caterpillars ain't butterflies

-

ain't nuthin' goin' on in my daughter's uterus

that's any of your fuckin' business

Gaming The System

The law is both a shield and a sword.

But no matter what the intent, it's the outcome that matters.

And in the end, the whole thing is totally reliant on people acting honorably, in good faith, and with the very sense of justice that the spirit of the law is supposed to be all about.

Via Stitcher, NYT's The Sunday Read - The Accusation by Sarah Viren (March 2020)

I Wanna Sue Nazis

When some shit like Qult45's un-reality gets going, it's hard to stop.

They can keep it going almost like a runaway nuclear reaction when the fuel pile reaches critical mass. 

If you stack up the shit fast enough, then it's easier to make that shit sound plausible than it is to refute each separate turd. And because people will begin to believe the shit just through repetition, then eventually, it has to come down to finding a way to force the thing to a screeching halt so somebody can at least sort one piece of it out.

It's not a nice analogy because it's not a nice task - sorting thru the shit. Which is why guys like Trump do the dirtiest nastiest shittiest things they can think of - because somebody has to get down in all that muck to make it stop, and not many people are lining up to volunteer for the duty.

But once that one piece has been taken apart, then the Gordian Knot starts to unravel and the whole mess begins to flip the other way. It "suddenly" becomes a lot easier to see how similar the individual instances of bullshit were, and that makes it easier to see most of what Qult45 has been up to for the bullshit it's always been.

The main avenue for forcing the halt, and unraveling the knot has traditionally been the courts.

And don't get me started on how hard Republicans have been working at fucking up the whole court system - suffice to say we still have a shot at making this thing work in favor of someone other than some rich legacy puke in spite of "conservative" efforts.

Anyway, here's hoping Mr Trump is heading for some very rough water.

WaPo:

On the other side of Donald Trump’s turbulent presidency, the lawyers are waiting.

Leaving aside his Senate impeachment trial, mounting government investigations include a civil probe by New York Attorney General Letitia James, a criminal probe by Manhattan District Attorney Cyrus Vance Jr., and a federal probe by acting U.S. Attorney for D.C. Michael Sherwin that may include Trump’s role in the catastrophic storming of the U.S. Capitol this month.

But already pending for the soon-to-be South Florida retiree is a trio of lawsuits that allege defamation, fraud and more fraud — all of which are helmed by one attorney.

Roberta Kaplan’s clients include writer E. Jean Carroll, who filed a defamation case after Trump claimed she was “totally lying” about her allegation that he raped her a quarter-century ago in a Bergdorf Goodman dressing room, and niece Mary L. Trump, who claims that Trump and two of his siblings deprived her of an inheritance worth millions.

“I became the go-to person to sue the president,” says Kaplan, 54, with considerable relish.

She is in many ways the ideal legal adversary to take on Trump. Kaplan is a brash and original strategist, with neither a gift for patience nor silence, a crusader for underdogs who has won almost every legal accolade imaginable. Kaplan, says New York Democratic Gov. Andrew M. Cuomo in an email, “has been indispensable in the fight against the cancer of hate and division that Trump spent four years exacerbating.”

Before the presidency, Trump was often as engaged in legal tussles as he was in real estate, suing and threatening to sue his way out of financial trouble. With a return to private life, “his terror is that he will no longer be protected by the office and will have to deal with these lawsuits,” says his niece. Trump faces the prospect of spending considerable time in the role of defendant. Kaplan says she will seek to depose him in all three cases. Trump’s lawyers did not respond to requests for comment on the cases in this story.

For much of her career, there was little in Kaplan’s professional bio to suggest she would become an attorney suing behemoths. Kaplan, known to all as Robbie, is a self-described “traditionalist,” in pearls, pumps and, pre-coronavirus, superior blond highlights, who long worked as a top commercial litigator at Paul, Weiss, one of the nation’s preeminent firms, where the fees tend to be if-you-have-to-ask-you-surely-can’t-afford-us.

But she became increasingly identified as an advocate for liberal causes and outside-the-box legal strategies. She is a lesbian, an observant Jew and a die-hard Democrat for whom 12 hours constitutes a light work day.

“My maternal grandmother always hated a bully,” Kaplan says during a series of phone interviews. “One really good job for going after bullies is to be a lawyer.”

Since launching her own firm four years ago, Kaplan has initiated a constellation of cases against powerful, often intimidating forces: white supremacists, major Hollywood players, the president of the United States. Legal writer Dahlia Lithwick calls her “an attorney general for the resistance.”

Stanford University law professor Pamela Karlan says of their frequent legal conversations: “Robbie’s not calling about feelings. She wants to fix it first. She’s the least diffident person I’ve ever met. Plenty of smart people worry about failing. They worry about every little thing. Robbie doesn’t worry about that. In a really disarming way, she doesn’t care if people view her as hyperaggressive.”

In Kaplan’s third Trump case, she represents participants in ACN, a multilevel marketing company promoted on “The Celebrity Apprentice.” They’re suing not ACN, but the former host and his three oldest children, accusing them of endorsing the company as a promising business opportunity.

While Trump billed himself as a populist, Kaplan perceived a consistent disconnect in how Trump University and other enterprises allegedly took advantage of the very people whose interests he claimed to champion.

“Because of his prominence, he marketed his ability to convince unsophisticated, very poor Americans to invest,” says Kaplan, who was indignant that Trump “would exploit people like this to line your own pockets.”

(In a Business Insider story, a Trump organization spokesperson responded to the suit by saying, “Before enrolling with ACN, every participant acknowledged in writing that they are ‘not guaranteed any income.’ ” In that story, ACN co-founder Robert Stevanovski claimed the plaintiffs were told that Trump was getting paid to endorse the company. “I think it’s politically motivated that they’re going to sue him and the family and not us,” he said.)

Kaplan remains most celebrated for the Edie Windsor case that, in 2013, successfully struck down the Defense of Marriage Act, paving the way with stunning alacrity for the legalization of same-sex marriage two years later to the day.

Among Kaplan’s strategic moves — “I don’t know where I found the chutzpah to do this” — was to help coax Bill Clinton to publish a Washington Post opinion piece renouncing his 1996 support of DOMA before she appeared before the nation’s highest court. United States v. Windsor remains the only U.S. Supreme Court case that she has ever argued.

“A little girl with a big mouth.” That’s how Kaplan’s grandmother described her, meant with affection. Growing up in Cleveland, she was a rigorous student who designed a plan. Head East to a top school (Harvard), train as a lawyer (Columbia), become a New Yorker.

Five years ago, that plan expanded to landing a top Justice Department position in Hillary Clinton’s administration.

So, no.

Instead, in the summer of 2017, Kaplan launched her own boutique firm, still a rarity among female corporate lawyers, creating an unusual model that combines lucrative commercial litigation with a progressive public-interest practice. Free from the agendas of risk-averse institutional clients, Kaplan and her colleagues became free to take on any case they believed had merit.

One week after the firm moved into its 71st-floor offices of the Empire State Building, the furniture yet to arrive, Charlottesville erupted.

Believing that Trump’s Justice Department seemed unlikely to seriously investigate and prosecute the people responsible for the violence during the “Unite the Right” rally — he infamously claimed there “were very fine people, on both sides” — Kaplan announced, and this was her precise language to friends and colleagues: “I want to sue Nazis.”

Because, why not?

Within days, Kaplan and her team flew to Virginia. The firm adopted an outside-the-box approach and sued two dozen avowed neo-Nazis, white supremacists and associated groups, invoking the 1871 Ku Klux Klan Act to argue that they conspired for months to commit racially motivated violence, thereby making it more of a challenge for the organizers to adopt free speech as a defense. The case is scheduled for trial in October.

In the wake of Harvey Weinstein’s sexual misconduct revelations, Kaplan co-founded the Time’s Up Legal Defense Fund, which offers financial assistance for plaintiffs filing harassment cases, and she now serves as chair of the Time’s Up organization. Many women who say they have been sexually harassed or assaulted have come to her. The actress Amber Heard sought Kaplan’s representation in ex-husband Johnny Depp’s $50 million case involving a 2018 Washington Post opinion piece by Heard; he alleges she defamed him by implying that he domestically abused her. (The op-ed does not explicitly name him.) In the complaint, the actor denies any abuse took place.

Heard says of Kaplan, “I’m instantly drawn to the type of individual who can look upon the Goliath and say ‘I think I can take you.’ That kind of energy and temerity is rare in the world, especially in the legal world.”

Suing the powerful has brought repeated threats. Kaplan has an apartment in Manhattan but requested that her country home’s location, where she has spent the pandemic working, go unnamed.

Kaplan says the greatest abuse she’s received on social media has come not from neo-Nazis, white supremacists or Trump’s true believers, but from Depp’s vehement online champions.

A hallmark of Kaplan Hecker & Fink is crafting complaints in layman’s language that pack a wallop. The Mary Trump brief is a doozy. “For Donald J. Trump, his sister Maryanne, and their late brother Robert, fraud was not just the family business — it was a way of life,” the complaint begins, before alleging three duplicitous schemes, “The Grift,” “The Devaluing” and “The Squeeze-Out.”

Says Mary Trump, “That brief is literature.”

The president’s lawyers, in an effort to have the case tossed, claimed that the complaint is “laden with conspiracy theories.”

When Carroll first met with Kaplan, the lawyer quickly understood her client’s objective. “I don’t give two flying figs about an apology,” Carroll says. “I am dying to get him in a deposition. I want him to say that I’m not a liar. I just want him to admit that he lied and that, yes, it happened.”

The last few years of Kaplan’s professional life, with her firm swelling from four to 43 elite lawyers, are inextricably intertwined with Trump. Without his election, Kaplan may not have launched her own firm as quickly or filed three lawsuits against him.

“I’m ready. I’m excited,” says Kaplan. In the Carroll case, Kaplan believes that Trump’s proclivity for false and misleading statements, with more than 30,000 of them during his White House term, according to The Post, will be tested when he is under oath. During a 2007 Trump deposition, lawyers caught him making exaggerated claims 30 times, according to a 2016 Post investigation.

“When we depose you, you’re not going to get away with that,” Kaplan says. “He had the mantle of the presidency, and that’s now gone.”

Kaplan is celebrated for her candor. She’s active in LGBTQ causes, recently serving as the board chair of the Gay Men’s Health Crisis. She rhapsodizes about her “big gay Jewish wedding” in 2005 to Rachel Lavine, a liberal activist who serves on New York’s Democratic committee.

Yet Kaplan remained in the closet until law school graduation.

“Robbie is one of the most conventional radicals you’ll ever meet,” Lithwick says.

In 1991, Kaplan came out to her parents at age 25. It did not go well. Her mother walked up to a wall and began banging her head, repeatedly, in dismay. “Which she has apologized for over and over again,” Kaplan says. The family remains close.

Kaplan experienced a rare episode of depression, which led her to consult a therapist named Thea Spyer, who referenced her lesbian relationship in an effort to comfort Kaplan — and whose death in 2009 left a punitive estate tax bill to her partner, Edie Windsor, because their marriage wasn’t legally recognized, sparking the Supreme Court case that helped define Kaplan’s career.

Why did such an outspoken person hide her true identity for so long?

“I’d never been a burn-down-the-ramparts sort of person. I believed in working in institutions,” says Kaplan. “Living a life very much on the margins didn’t appeal to me. I really wanted to have kids. I really wanted to be part of the Jewish community. I really wanted to have a career. All of this would have been unavailable in the world I grew up in.”

She has all of that — the marriage, a son (Jacob, now 14), a goldendoodle. On Sunday mornings, she participates in a Talmud discussion group with her rabbi and Lithwick.

“Also, I knew when I met Rachel there was no way I was going to be able to be in the closet and be with Rachel,” Kaplan says. “Those two things were completely incompatible.” Everyone in the New York gay rights movement knew Lavine. Politics, civic engagement and intellectual rigor were part of the attraction. On an early date in a romantic Chelsea bistro, the two argued at length over the comparative power of the Bolsheviks and the Mensheviks during the Russian Revolution.

Although known for her fresh legal arguments, Kaplan was comfortable working in a large firm. She seemed unlikely to go out on her own. In many ways, it’s the boldest professional move she’s made.

“What makes a good litigator and lawyer is being a pessimist and risk averse because you need to be looking at problems around the next corner,” says Karlan, who helped prepare Kaplan for the Supreme Court argument. “Robbie has been as successful as she is because she doesn’t appear to be that kind of thinker. She’s an optimist.”

The firm’s high-profile cases have attracted top legal talent, like Joshua Matz, who briefly left the firm last year to help the House Judiciary Committee draft articles of impeachment.

“We’ve learned that in presenting options to Robbie, she will presumptively favor the most aggressive option,” Matz says. “She is jaw-droppingly strategic and savvy on the one hand, and extremely bold on the other.”

It’s also a menschy practice. “What’s unusual is the sheer amount of contact she has with her clients,” Karlan says. Kaplan celebrated Passover with Windsor, who died in 2017. She’s available at all hours for phone consultations. Gifts of food are constant. She sent Heard a box of chicken soup, lox and bagels.

Citing logistical challenges that were better served by local counsel, Kaplan’s firm no longer represents Heard in the defamation case that is scheduled for trial in May.

Yet Kaplan continues to offer Heard legal advice on the case and other legal matters. They speak regularly, sometimes daily. “She is the bravest lawyer I have ever met. She doesn’t get intimidated or scare easily,” Heard says. “The well-behaved woman never interested me. There’s a rebellious part of Robbie. I think of her as my Jewish mother.”

Kaplan’s close friend Sharon Nelles, head of litigation at Sullivan & Cromwell, says: “If you can come at the world the way she does, you are not reined in by whether there are social constructs or boundaries. You can create your own mold. Lawyers for the most part react. Robbie acts.”

Nelles recalls a time when Kaplan called to consult on a case. “She’s yapping at me on the phone and then lets out a little screech.”

Nelles asked what was wrong. “Oh, I’m having a medical procedure,” Kaplan said. “Let me call you back when I get off the doctor’s table.”

Mary Trump hired Kaplan to sue President Trump, his sister Maryanne Trump Barry and the estate of his late brother Robert Trump “because I want justice for my daughter, and for me, and for my dad. If Donald Trump is not going to be held accountable for other things, he needs to be held accountable for this,” she says, adding: “Maybe that will start the dominoes to fall. Maybe other people will feel that they, too, have options and will come forward.” Kaplan’s firm regularly fields inquiries from potential clients who wish to sue Trump.

Carroll cannot wait for her day in court with Trump. She’s already picked out her outfit. Black. Armani.

She also views her lawsuit as symbolic, saying, “It’s for all the women in the country who have been harassed or assaulted by powerful men, and feel helpless to do anything about it.”

So Carroll’s doing something about it.

“I don’t have to be brave,” she says. “Because Robbie Kaplan is brave for me.”

Cleta Update

shyster

ˈshī - stər

noun

a person, especially a lawyer, who uses unscrupulous, fraudulent, or deceptive methods in business.
"an ambulance-chasing shyster"

NYT: (pay wall)

Lawyer on Trump Election Call Quits Firm After Uproar

A lawyer advising President Trump in recent weeks has resigned from her law firm after it was revealed that she participated in the call where Mr. Trump pressured Georgia officials to help him reverse the state’s election results, the firm said in a statement on Tuesday.

The lawyer, Cleta Mitchell, has been advising Mr. Trump despite a policy at her firm, Foley & Lardner, that none of its lawyers should represent clients involved in relitigating the presidential election.

“Cleta Mitchell has informed firm management of her decision to resign from Foley & Lardner effective immediately,” the firm said in its statement. “Ms. Mitchell concluded that her departure was in the firm’s best interests, as well as in her own personal best interests. We thank her for her contributions to the firm and wish her well.”

Ms. Mitchell’s resignation was the latest evidence of the problems Mr. Trump has created for law firms throughout his time in office, as their employees and clients object to ties with the president.

Court Wars

Here in USAmerica Inc, one of our favorite games is Sue-Your-Way-To-The-Top.

Why work for it when you can pay a lawyer to get it for you?

The Trump Crime Family plays its own version - basically illustrating that rich people get to operate at a level totally unavailable to the rest of us.

The Lincoln Project put these up in Times Square:

...which prompted this:

Which reminded me of this:

We Can Do Something

But we'll have to figure out how to get people to calm down enough not to assume the absolute worst of whatever side they're not on.

Today's Quote

The glory of justice and the majesty of law are created not just by the Constitution - nor by the courts - nor by the officers of the law - nor by the lawyers - but by the men and women who constitute our society - who are the protectors of the law as they are themselves protected by the law.

-- Robert F Kennedy

Today's Podcast

Preet Bharara's podcast - with Jeff Flake:

Flake seems like a decent and at least marginally reasonable guy, but don't mistake him for any kinda hero.

The issue of guns comes up at about 34:00, and Bharara asks him about Congress Critters voting with the NRA every time because they're afraid of what the Ammosexuals will do if they don't vote that way. Flake runs as fast as possible to the False Equivalence of a Both-Sides response, saying there're plenty of instances of members "on the left" being influenced by big money donors blah blah blah.

I think about that for a short minute and I'm left with the notion that Flake is saying it's OK for him to trade dead kids for the safety of a continued stream of campaign donations and the near-guarantee of no primary challenges.

In a very real sense, he admitted his vote against gun control is - and has always been - for sale.

President Capone

While we don't get to see 45*'s tax records right now, we can learn part of what we need to know by looking at the tiny sliver of information they do allow us to see.

It ain't sexy - it won't excite anybody outside a relatively small circle of Numbers Nerds - but this is how these things get done.

WaPo, David Herzig and Bridget Crawford


It’s possible the president filed the right paperwork. But without a full release of his tax returns, the available evidence suggests he hasn’t. According to New York City property records, Trump paid $13,000 in state and local transfer taxes for these two sales. That is the correct amount for a sale between strangers. But if he paid state and local transfer taxes, that means he didn’t treat the transfers as gifts. And on the real estate forms filed in New York, Trump didn’t check any of the boxes indicating that these were sales between relatives or sales of less than the entire property. It would seem, then, that he treated the transactions as if they were sales for fair market value to a stranger.

-snip-

Since Trump did not cast the transactions as gifts for state and local tax purposes, it is almost certain that he did not do so for federal gift tax purposes, either. In our combined 40 years of experience as tax lawyers, we are unaware of a situation in which a taxpayer would report a transaction as a fair market value between strangers on the state level (and thus incur real estate taxes) but treat it as a gift at the federal level (and thus incur an additional tax). It’s fair to infer that Trump didn’t follow the rules.

And just in case you're looking for work in a field that's almost perfect for keeping you busy for decades to come as we try to unravel the shit blanket that's been thrown over our heads, it's worth considering a career in Forensic Accounting (yes - that's a thing). And if we're going to have any real chance to fix a tax system that's totally FUBAR, we'll be in dire need of some very good Numbers Nerds.

Res Ipsa Loquitor

"The occurrence of an accident implies neglect"

When something shitty happens - terrorists or a hurricane or whatever - remember that Cult45 has been awfully slow about getting people in place who oughta be working hard so we'll be ready for the shit when the shit happens.

It's not at all certain that we're being set up to accept Daddy State rule, but how do we dismiss the probability given our current "leadership"?

hat tip = Foreign Policy (pay wall)

A New One For Me

This hasn't been on my radar at all, but I've heard it 2 or 3 times now in the last few days.

Consciousness of Guilt
Law and Legal Definition: Evidentiary rules allow a prosecutor to introduce testimony that tends to show that the defendant's actions prove he knew he was guilty (at least of something). This is sometimes referred to as “consciousness of guilt”.

Consciousness of Guilt Law and Legal Definition | USLegal, Inc.
https://definitions.uslegal.com/c/consciousness-of-guilt/

Give It Up

The Press Poodles (and way too many politicians and their constituents) are still taking everything 45* says as something deserving of the kind of respect most of us have paid to everything every POTUS has said or done up until now.

Even The Shrub - the guy who knew practically nothing but what Darth Cheney told him to sell us.

We have to suspend the Presumption of Regularity when we're talking about 45*.

Schiff: "We don't have one ethical standard for this president and a different ethical standard for other presidents." pic.twitter.com/SUKMMU8kaV

— Kyle Griffin (@kylegriffin1) June 18, 2017

An example from Lawfare Blog:

In the normal course of events, the announcement by DHS that it would ban large electronic devices from direct flights originating at ten airports in the Middle Eastwould excite a great deal of comment. Technologists would speculate as to the nature of the potential new bomb threat. Intelligence-types would be curious as to the provenance of the intelligence -- was it SIGINT or HUMINT? Law and policy folk would ask about the legal underpinnings and debate the policy's scope and wisdom. But, in the normal course, nobody (I submit) would doubt the underlying bona fides of those who had adopted the policy. We might think they were unwise, mistaken, or foolish -- but nobody (save a few on the fringes) would have thought it was a sham. If this policy had been announced by President Obama, or Bush, or Clinton the salience of speculation as to a sham would be literally zero. We would allow our professionals at TSA and DHS the presumption of regularity in their work.

Not so with President Trump. My GWU colleague Henry Farrell and his co-author Abraham Newman have speculated, in the Washington Post, that the real reason for the device ban was in retaliation for unfair subsidies provided to the Gulf airlines by their governments. As they write:
It may not be about security. Three of the airlines that have been targeted for these measures — Emirates, Etihad Airways and Qatar Airways — have long been accused by their U.S. competitors of receiving massive effective subsidies from their governments. These airlines have been quietly worried for months that President Trump was going to retaliate. This may be the retaliation.

The presumption has to be: Until or unless it proves out, nothing this 45* guy says or does is legit.

Today's Today

FDR signed the Beer and Wine Revenue Act on March 22, 1933. 

Of course, there was always a way around prohibition if you were properly connected. The more things change.

American History Museum on Twitter

The Libel Bully

The ABA is a group that's almost exclusively lawyers - high-profile and high-compensation people - but they were worried Trump would sue them if they criticized him in print.

And Eiron did a spit take.

via GIPHY

Vox:

The New York Times reported Tuesday that the American Bar Association refused to publish a report that it had commissioned on Donald Trump’s tendency to file meritless lawsuits. The punchline? ABA's in-house lawyers were afraid Trump might file a meritless lawsuit over the contents of the report.

An ABA spokesperson now denies that the organization quashed the report. (It was not an official ABA inquiry but a thorough article by the LA-based solo practitioner Susan E. Seager, a longtime media lawyer, written for a publication of the media lawyer subgroup of the ABA.) The spokesperson insists that the ABA's editorial and legal staff simply offered its professional opinion on changes that ought to be made to reduce its supposed partisan tenor, ad hominem tone, and — yes — its profile as a target for a suit. Withdrawing the piece rather than negotiating over changes was the authors' call, the ABA says.

Seager, however, says it was clear that the editorial instructions were nonnegotiable, and David Bodney, the immediate past chair of the ABA's media law subgroup, backs her up. He tells Vox in an email: "In my experience, the ABA's attempt to dilute Ms. Seager's article was extraordinary, if not unprecedented, and demonstrates the importance of lawyers standing up against actions taken under the guise of our libel laws that would chill freedom of expression."

What follows is Seager’s fully footnoted original article, including the vivid language and headline the ABA brass vetoed. —Christopher Shea, Editor of The Big Idea

Hoo'da Thunk It?

This is Dred-Scott-level fuck-uppery.

"This Court now concludes that independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption. That speakers may have influence over or access to elected officials does not mean that those officials are corrupt. And the appearance of influence or access will not cause the electorate to lose faith in this democracy."  

-- Supreme Court Justice Anthony Kennedy, Citizens United v. FEC, 2010.

Another one from The Greatest Hits of SCOTUS:

Buck v. Bell