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an endless succession of beans and nuts.

"Last year, federal prosecutors in the [Washington D.C.] U.S. attorney’s office chose not to prosecute 67 percent of those arrested..."

"... by police officers in cases that would have been tried in D.C. Superior Court.... In an interview, Matthew M. Graves, the Biden-appointed U.S. attorney for the District, said his office was continuing to prosecute the vast majority of violent felonies. He said prosecutors were declining less serious cases for myriad reasons, including that the city’s crime lab remained unaccredited and police body-camera footage was subjecting arrests to more scrutiny...."

"[P]rosecutors have to pay to have evidence for DNA, firearm and fingerprint analysis sent to outside laboratories, Graves said. Prosecutors, he said, prioritize doing so for violent offenses.... [A] D.C. law that the city council passed in 2020 preventing officers from reviewing their body worn cameras before filling out charging documents... means officers now have to rely on their memories and notes when filling out arrest warrants, and prosecutors might not move forward on a case if details in the warrant don’t match the footage, officials said.... Graves said the office temporarily had resources stretched thin in recent years, though some of those problems had abated. After the Jan. 6, 2021, attack on the U.S. Capitol, he said his office temporarily pulled about 15 prosecutors and staffers from D.C. Superior Court cases to focus on prosecuting the federal cases."

Blaming Michael Cohen for the Manhattan D.A.'s difficulties indicting Trump.

I'm trying to read "How Michael Cohen’s Big Mouth Could Be Derailing the Trump Prosecution" (NY Magazine).

Key witness Michael Cohen and his pathological need for media attention have not been making things easier.... He clearly thinks very highly of himself and seems to have little awareness of his limitations.... He appears constitutionally incapable of telling the same story twice in the same way.... He is also obsessed with taking down his former boss Trump... [H]e could be confronted with inconsistent or problematic past statements.... 
“One of the things that I think will come out of this investigation,” Cohen [said in a TV interview], “other than the potential indictment of Donald Trump, is a lot of information about how the Southern District of New York dealt with me in my specific case.... [My lawyer] has so much information about the weaponization of the Justice Department against me...."...

Either he committed the offenses at issue and has accepted responsibility for them, a fundamental prerequisite for a crucial cooperating witness, or he was unfairly railroaded and forced to plead guilty despite being innocent of some or all charges....

"A Maryland appeals court on Tuesday reinstated the murder conviction of Adnan Syed, the subject of the 'Serial' podcast who was freed last year..."

"... after he had spent 23 years fighting charges that he had killed his former high school girlfriend. The Appellate Court of Maryland ruled that a lower court had violated the right of Young Lee, brother of Hae Min Lee, the victim, to have been notified of and to attend a hearing on the state’s motion to vacate Mr. Syed’s conviction. The appeals court ordered a new hearing on the state’s motion to vacate Mr. Syed’s conviction. The court wrote that it 'has the power and obligation to remedy those violations, as long we can do so without violating Mr. Syed’s right to be free from double jeopardy.' 'We can do that, and accordingly, we vacate the circuit court’s order vacating Mr. Syed’s convictions, which results in the reinstatement of the original convictions and sentence.... We remand for a new, legally compliant, and transparent hearing on the motion to vacate, where Mr. Lee is given notice of the hearing that is sufficient to allow him to attend in person, evidence supporting the motion to vacate is presented, and the court states its reasons in support of its decision."

I presume Syed will remain free, Lee will be given a respectful hearing, and the result will remain the same.

"At bottom, IA's fair use defense rests on the notion that lawfully acquiring a copyrighted print book entitles the recipient to make an unauthorized copy..."

"... and distribute it in place of the print book, so long as it does not simultaneously lend the print book. But no case or legal principle supports that notion. Every authority points the other direction."
Wrote Judge John G. Koeltl, of the Southern District of New York, quoted in "A judge sided with publishers in a lawsuit over the Internet Archive's online library" (NPR)(full text of case here).

It's well established that if you buy a printed book, you can share that book with as many people as you want, pass it around, lend it out, give it away, re-sell it. The book is an object that is owned, like a hat or a teddy bear. But a digital copy of that book you own is not the object. It's something else. And you've made a copy and are only lending that out. You still have the book, even though you may be keeping it, inert, on a shelf.

"The Supreme Court and lower courts have held repeatedly that the mere invocation of national security is insufficient to justify the suppression of First Amendment rights."

Writes Jameel Jaffer, the executive director of the Knight First Amendment Institute at Columbia, in "There’s a Problem With Banning TikTok. It’s Called the First Amendment" by  (NYT).
In court, the government will have to introduce evidence that the threats it is addressing are real, not merely conjectural, and that the proposed ban would address those threats. The evidence assembled so far is not likely to be sufficient. All of this will no doubt be frustrating to some policymakers.... But the legitimacy of our democracy depends on the free trade of information and ideas, including across international borders. Except in the most extreme circumstances, citizens should be able to engage freely with the communications platforms of their choice.

Jaffer goes into some detail about how the First Amendment applies even though TikTok is owned by a Chinese corporation. Basically, the Americans using it have a right to receive information, including information from foreign sources. And Jaffer minimizes the notion that the Chinese government could use TikTok to acquire data about Americans, because China can easily buy this data from data brokers. Where's the narrow tailoring in shutting down TikTok?

"The right to be rude to people in public has been upheld as a fundamental legal one by a supreme court in the United States."

"Not the Supreme Court of the United States, admittedly — it really would be astounding if those pompous geriatric arseholes could take a break from sending women’s reproductive rights back to the Stone Age and legislate on something useful — just the Supreme Judicial Court of Massachusetts. But it’s still a thing. Even if the court itself is barely more than a provincial Portakabin of self-important windbags I would hesitate to characterise as bog-trotting, gin-soaked hayseeds had they not just loudly decreed that my right to do so is mandated by their constitution.... Rudeness is funny and useful and democratising and classless and easy and brilliant and sexy.... [Rudeness] is letting your mouth and brain go full tilt when you’re pissed off with someone, deliberately eschewing the rules of politeness and gentility to make absolutely clear what you think of them."

A slight qualification emerges: You're "free to say absolutely whatever you like to anyone, as long as he is a rich, white, able-bodied, educationally normal straight bloke of about 53. But don’t worry, I can take it."

Everything must be Trump's fault — even the Manhattan D.A.'s botching of a hare-brained indictment.

I'm trying to read "Trolled by Trump, Again/Thoughts after a week of waiting and waiting for the indictment that the former President promised" by Susan B. Glasser (in The New Yorker).

You’d think that we would know better by now, but here we are, being trolled again by Donald Trump. Whatever else the disgraced, defeated, and possibly soon-to-be-indicted former President is, he is a master when it comes to setting the terms of a media frenzy. Trump knows not only how to get our collective attention but also how to keep it. He flourishes in the absence of hard information to contradict his claims, and he has years of experience using the silence of the legal authorities to focus the debate on their actions rather than his own.


I tested my headline on Meade before publishing and he raised the question whether you can botch something that's already hare-brained. I mean if it's hare-brained and you've botched it, you've kind of fixed it. In which case, huzzah for the Alvin Bragg!

ADDED: I wrote that before seeing Trump's latest social media posting, reported at "Trump, Turning Up Heat, Raises Specter of Violence if He Is Charged/In an overnight post, the former president escalated his attacks on the Manhattan district attorney, Alvin Bragg, and warned of 'potential death and destruction' if he is indicted" (NYT).

“What kind of person,” Mr. Trump wrote of Mr. Bragg, “can charge another person, in this case a former president of the United States, who got more votes than any sitting president in history, and leading candidate (by far!) for the Republican Party nomination, with a crime, when it is known by all that NO crime has been committed, & also that potential death & destruction in such a false charge could be catastrophic for our country?”

“Why & who would do such a thing? Only a degenerate psychopath that truely hates the USA!” 

"A federal official wrote a parody of Harvard’s attitude toward Asian Americans and shared it with the dean of admissions. Why did a judge try to hide that from the public?"

Asks Jeannie Suk Gersen, in "The Secret Joke at the Heart of the Harvard Affirmative-Action Case" (The New Yorker). The case, pending before the Supreme Court, it Students for Fair Admissions v. Harvard.

During the trial, [Judge Allison Burroughs] often had S.F.F.A.’s and Harvard’s lawyers approach the bench for lengthy sidebar discussions, which others in the courtroom couldn’t hear.... [T]he judge automatically sealed all the sidebars. ... I filed a letter with the court, asking, in my capacity as a researcher and a reporter, that Judge Burroughs unseal the sidebars...

To my surprise, Seth Waxman, who argued the case for Harvard, quickly objected on behalf of the university—the one that employs me as a tenured law professor, whose job it is to freely conduct research and pursue knowledge. He wrote that the sidebars contained “personal and confidential information that should remain sealed,” providing examples of specific transcript pages that included information about applicants or “information that was not admitted into evidence at trial.”....

Various news organizations joined Professor Gersen's request. 

Judge Burroughs held a hearing on the request in mid-November. I represented myself in court. She said, “There are a lot of things in those sidebars that were really just meant to be out of the hearing of the jury, not meant to be out of the hearing of the entire world for all time.”

But there was no jury. 

“In response to Harvard’s letter, I think that the secret sauce will stay under seal, which I suspect is what all these news medias really want.”

Secret sauce?! Did that refer to some sort of trade secret of Harvard's? But that sounds like it would be the secret to how Harvard manages to accomplish its racial balancing, the very subject of the lawsuit.

Judge Burroughs held two hearings about which trial sidebars to unseal and which to keep secret, but she closed the proceedings to everyone except the attorneys for Harvard and S.F.F.A. Then, at a public hearing, in mid-December, Judge Burroughs announced her decision: she would unseal most sidebars but keep some portions sealed. Some sidebars, she revealed, contained discussions of “a very poor, ill-advised, and in bad taste joke” that a Department of Education official at the Office for Civil Rights—who, in the late eighties, had led a federal investigation of Harvard—sent to Harvard’s dean of admissions. According to Judge Burroughs, the joke, which took the form of a mock memo from the Harvard admissions office, “referenced certain Asian stereotypes” and included “anti-Asian remarks.” Judge Burroughs said that she would keep sealed “the exact words” of the federal official’s “joke memo,” taking into account the “privacy interest” of the “gentleman” who wrote and sent it....

Why would protecting this man, who exercised federal power, outweigh the interest in finding out about his bias?! 

“What he said was clearly in poor taste, but I don’t think the details of what he said is what’s important,” she added. I argued to Judge Burroughs that “the interest of the public in knowing what that joke was, the actual content, the words, would be extremely important.” She disagreed, assuring me that, although the precise words would be blocked out, “you won’t be mystified about what was said.”

I also asked Judge Burroughs to unseal the transcripts of the closed proceedings that she’d held on the unsealing issue... She [would only] summarize some of the arguments that were made.... As I began to [argue], Judge Burroughs cut me off: “Yes, I know. I get it.” And then: “I hear you. I got it. I got it.” I wouldn’t have anticipated or believed what she said next, but there it is in the transcript: “Greedy, though, Ms. Gersen.”...


In January, Judge Burroughs did release those hearing transcripts. They show that Harvard argued vigorously against unsealing certain sidebars.... Regarding the “inappropriate, anti-Asian, stereotypical, poor attempt at a joke,” Judge Burroughs explained, “What I’m trying to do is give them”—the press—“a flavor of it without really being awful about it, I guess.”

If it's that awful, that's why we need it. Gersen does get hold of the joke memo, because it was a public document, so why work so hard to suppress it? Gersen says it's because "both Harvard and the court expect the public to operate on trust that their decisions are not biased."

The federal official who wrote the joke memo, Thomas Hibino, worked at the Boston location of the Office for Civil Rights.... After Hibino oversaw the federal investigation into Harvard’s alleged discrimination against Asian American applicants, decades ago, he and [Harvard admissions official William Fitzsimmons] became friends....
On November 30, 2012, amid a friendly back-and-forth about lunch plans, Hibino e-mailed Fitzsimmons an attachment.... The joke memo had been written on Harvard admissions-office stationery, during the earlier investigation. It was purportedly from an associate director of admissions and parodied the admissions officer downplaying an Asian American applicant’s achievements. The memo denigrated “José,” who was “the sole support of his family of 14 since his father, a Filipino farm worker, got run over by a tractor,” saying, “It can’t be that difficult on his part-time job as a senior cancer researcher.” It continued, “While he was California’s Class AAA Player of the Year,” with an offer from the Rams, “we just don’t need a 132 pound defensive lineman,” apparently referring to a slight Asian male physique. “I have to discount the Nobel Peace Prize he received. . . . After all, they gave one to Martin Luther King, too. No doubt just another example of giving preference to minorities.” The memo dismissed the fictional applicant as “just another AA CJer.” That was Harvard admissions shorthand for an Asian American applicant who intends to study biology and become a doctor, according to the trial transcript.

Fitzsimmons e-mailed Hibino back, “I’m stunned!” Fitzsimmons apparently believed that the admissions officer whose name was on the Harvard stationery had actually authored the memo. She “passed away a few years ago and I’d forgotten that she had such a sense of humor,” he wrote. “We’ll ‘de-construct’ at lunch. Where should we go?” Hibino wrote to clarify, “No, no! I did that from purloined stationery from your shop! Pretty convincing, huh?!!!!! I forget—are we getting together here or there?”....

Hibino and Fitzsimmons are still around and both declined to comment on this article. 

Judge Burroughs excluded the memo as irrelevant because Fitzsimmons' reaction was ambiguous. She said: “It has the potential to be explosively prejudicial, not to me because I take it for what it is, but in terms of the external world’s response to this.... At some point, I feel for the guy.” 

"Well, I went to a law school where I didn't learn any law," said Justice Alito, who went to Yale.

He was responding to Lisa S. Blatt, the lawyer for Jack Daniel's, who'd just said — transcript here — "Justice Alito, I don't know how old you are, but you went to law school, you're very smart, you're analytical, you have hindsight bias, and maybe you know something...."

It was a gratuitous shot at Yale Law School, because Blatt wasn't arguing about Alito's knowledge of law compared to that of ordinary people, but reacting to his assertion that no reasonable person would think Jack Daniel's had authorized a dog toy shaped like a bottle of Jack Daniel's but bearing references to dog urine and feces. He'd said:
Let me envision this scene. Somebody in Jack Daniel's comes to the CEO and says, I have a great idea for a product that we're going to produce. It's going to be a dog toy, and it's going to have a label that looks a lot like our label, and it's going to have a name that looks a lot like our name, Bad Spaniels, and what's going to be in -- purportedly in this dog toy is dog urine. You think the CEO is going to say that's a great idea, we're going to produce that thing? 

Blatt's point was, to put it bluntly, people are dumb — too dumb to be imagined by a big brain like Alito's.

Here's the audio.

"But for falsifying business records to be a felony, not a misdemeanor, Mr. Bragg’s prosecutors must show that Mr. Trump’s 'intent to defraud' included an intent to commit or conceal a second crime."

"That crime could be a violation of election law, under the theory that the payout served as a donation to Mr. Trump’s campaign, because it silenced Ms. Daniels and shut down a potential sex scandal in the final stretch of the campaign. Although the district attorney’s office need not obtain a conviction on the election law violation, or even include it in the indictment, that second crime might be the aspect of the legal theory that is most vulnerable to attack.... 

"[I]n 2018, when [Michael D.] Cohen pleaded guilty to federal charges involving the hush money. Because he pleaded guilty, the issue was never tested in the courts, but some campaign finance experts and conservative legal scholars have argued that the case was bogus. 'Michael Cohen Pled Guilty to Something That Is Not a Crime,' was the headline in a National Review article at the time.... 

"... Mr. Trump’s lawyers could argue that federal law has no place in state court. And if he uses a New York election law violation, the defense could claim that a violation of state law does not apply to a federal election — in this case, the 2016 presidential campaign.... ... Federal campaign finance law explicitly states that it overrides — pre-empts, in legal terminology — state election law when it comes to campaign donation limits.... But there are exceptions to federal pre-emption contained in regulations from the Federal Election Commission.... 

"[Also], the felony falsifying business records charge expires after five years.... And there are a few additional advantages for the district attorney: His case will play out in state court, with a state judge... and a jury in deep blue Manhattan."

"Legal Intricacies," indeed! These are obvious and terrible problems with the prosecution. It's not subtle! Alvin Bragg, please don't inflict this on us. 

And it's so repulsive for the NYT to end this article by bucking up readers with the hope that the state judge will be biased.

ADDED: A perfectly concise comment over at the NYT: "Novel legal theory in a political prosecution destroys trust in rule of law."

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