While Mario’s smarter son, Gov. Andrew Cuomo, has grown a huge fan base within the Democratic party, enough so that there are mumbles about the DNC replacing Joe Biden with Cuomo as the presidential candidate. Yet, when it comes to exercising executive clemency, both before the pandemic and now in accommodation of the pandemic, he’s been woeful.

Criminal defense lawyers, activists and pundits have spent the past month calling for the release of a variety of categories of prisoners to avoid what was predicted to be a killing field in prison. It presented the perfect storm for disaster once coronavirus found its way into institutions, as had to happen. While some states and localities took action, albeit inadequate but something, most did pretty much nothing. Cuomo fell in the “pretty much nothing” nothing group, perhaps because he couldn’t find time between his television appearances.

Georgetown Law prof Shon Hopwood posed the question, and his answer, to why. Continue reading →

Who says the Supreme Court isn’t flexible?

The Court will hear oral arguments by telephone conference on May 4, 5, 6, 11, 12 and 13 in a limited number of previously postponed cases. 

SCOTUS has discovered telephones! And this accommodation isn’t just for some lawnerd cases, but for one of the hottest issues around.

19-635, Trump v. Vance
19-715, Trump v. Mazars USA, LLP, and 19-760, Trump v. Deutsche Bank AG

If the names don’t strike a bell, these are the subpeonas issued by New York County District Attorney Cyrus Vance, Jr. for various tax returns for the man who would be king. Continue reading →

Cathy Young explained the problem as well, and as clearly, as possible, so no need in redoing what has already been well done.

Should Reade’s accusations be taken more seriously? And if not, what does that mean for the Democrats’ post-#MeToo commitment to the principle of believing and supporting women who come forward as sexual assault survivors?

The Democrats, in general, and Joe Biden, in particular, have a problem, and it’s not the accusation by Reade that while as a Senate staffer, Biden forced himself upon her. The problem is that this is a watershed moment between being principled, even if wrong, or being flagrant hypocrites, plus wrong. Naturally, the turning point is when the paper of record decided to say her name.

Do you think that, in your heart, you’re reluctant to promote a story that would hurt Joe Biden and get Donald Trump re-elected?

I can’t make that calculation. I won’t. I won’t let my head or my heart go there. I think once you start making those kinds of calculations, you are not a journalist anymore. You’re some sort of political actor.

That’s the answer of Dean Baquet, executive editor of the New York Times, who apparently isn’t a Rush fan.

Look, I get the argument. Just do a short, straightforward news story. But I’m not sure that doing this sort of straightforward news story would have helped the reader understand. Have all the information he or she needs to think about what to make of this thing.

Long or short, but a straightforward news story, the kind where a reporter reports these things called facts, and the fact was that Tara Reade made the now-adored “credible accusation” against presumptive presidential nominee, Joe Biden. What’s there for the NYT to make the reader “understand”? It’s news about a newsworthy accusation against a newsworthy individual. But not  newsworthy enough for Baquet?

Why was Kavanaugh treated differently?

Kavanaugh was already in a public forum in a large way. Kavanaugh’s status as a Supreme Court justice was in question because of a very serious allegation. And when I say in a public way, I don’t mean in the public way of Tara Reade’s. If you ask the average person in America, they didn’t know about the Tara Reade case. So I thought in that case, if The New York Times was going to introduce this to readers, we needed to introduce it with some reporting and perspective.

How does the “average person in America” learn of news, dear newspaper editor? The point here isn’t that journalism might compel the media to be somewhat circumspect in its presentation of an outrageous accusation that might be real or might be fabricated, might destroy a career over nothing, might impact a nation if presented with a sledgehammer rather than a scalpel.

The point is that every accusation demands the same scrutiny. And who better to make that point than the New York Times’ most millennial of unduly passionate columnists, Michelle Goldberg.

It would be easier to know what to do with Tara Reade’s accusation that Joe Biden sexually assaulted her if her tale were more solid, or if it were less.

No reading of the laundry list of excuses. No litany of rationalizations to explain why she didn’t go to the police at the time, couldn’t get her details straight, might change her story from time to time. No hashtag #BelieveTheWoman. No gymnastics to argue that it must have happened because Tara Reade said it did, and that’s enough for every #MeToo accusation by definition. Nope. Goldberg has discovered facts and reason, with her trademark mix of snark and ad hominem.

Since Reade made her latest accusation, people on both the left and the right have been demanding, with a mix of genuine outrage and gotcha glee, that the Democratic Party live up to its #MeToo commitments and #BelieveTaraReade. “For Elite Democrats, Joe Biden’s Candidacy Means Ditching #MeToo,” said a headline in the socialist magazine Jacobin. “Joe Biden, Brett Kavanaugh and the #MeToo hypocrites,” said one in The New York Post.

So must Democrats, for the sake of consistency, regard their presumptive presidential nominee as a sexual predator?

One could qualify the question with more forceful language, such as principle, integrity, honesty or, you know, not to be a flaming hypocrite, but the “sake of consistency” (which ironically is the hobgoblin of a small mind if it’s foolish) will do. So what’s your answer, Michelle?

As I’ve written repeatedly, I think Biden is a weak candidate, and I wouldn’t be unhappy if the Democratic Party were forced, by some last-minute emergency, to replace him, maybe with one of the Democratic governors who has shined in response to the coronavirus crisis.

That’s not quite responsive to your question, Michelle. It’s what adults might call a non sequitur. Care to go for two?

But, absent other accusations, that is not going to happen. Reade seems almost engineered in a lab to inspire skepticism in mainstream Democrats, both because her story keeps changing and because of her bizarre public worship of President Vladimir Putin of Russia.

So no, you don’t want to answer your own question, and will rationalize around the edges as hard as you can to challenge the accusation against Joe Biden. It’s entirely fair to make the argument that Tara Reade’s accusation isn’t sufficiently credible to be worthy of destroying Joe Biden. Whether Goldberg’s done a decent job of it is another matter, but she’s playing to her echo chamber of simpletons, so it’s understandable that she uses the arguments her audience can grasp.

But what she’s done by her desperate avoidance of the only real question at hand, even though by avoidance rather than confrontation, is proven that reliance on facts, reason and due process to determine whether a rape has occurred hasn’t changed at all, and the laundry list of excuses is just that, facile nonsense to cover up the failure of facts, reason and due process. The only difference is whether the man, this time, is a guy they want to destroy or not. Nothing more.

When Asha Burwell fabricated the claim that she was beaten because of the color of her skin, two things followed. The first was the usual knee-jerk reaction from those who will believe whatever supports their tribe and worldview. The second was a prosecution in Albany County Supreme Court.

In 2016, defendant was charged in an 11-count indictment with assault in the third degree, harassment in the second degree and four counts of falsely reporting an incident in the
third degree for her involvement in an altercation and its aftereffects that occurred on a city bus bound for the State University of New York at Albany (hereinafter SUNY Albany) campus. The indictment alleged that defendant, knowing the information to be false, reported, via an emergency 911 call, that “she was ‘jumped’ on a bus by a group of males, that it was a racial crime, and that she was struck by boys and called a ‘nigger'” (count 4). Continue reading →

Stripped of its rhetoric, the decision of Western District of Kentucky judge Justin Walker, who received his commission on October 25, 2019,* in On Fire Christian Center v. Fischer is likely correct. Prohibiting drive-thru religious observations failed to satisfy strict scrutiny.

The ruling came as Republicans blasted Democratic Gov. Andy Beshear’s statewide plan to order people into quarantine if they attend mass gatherings, including religious ones.

On Fire Christian Church had sued Louisville Mayor Greg Fischer and the city after Fischer announced drive-in style religious gatherings were not allowed on Easter.

Continue reading →

Kansas Governor Laura Kelly issued an executive order limiting gatherings to less than ten people, a not unsurprising order given the circumstances. But tomorrow is Easter.

Kelly issued the order on Tuesday, which included exceptions for clergy and other individuals conducting services. The directive sparked an intense backlash from Republicans, who said it trampled on the constitutional right to freedom of religion.

On Wednesday, the Legislative Coordinating Council — made up of legislative leaders from both parties — voted along party lines to revoke the order. In her lawsuit, Kelly argued only the full Legislature has the ability to overturn her orders.

Continue reading →

Many lawyers, small business owners themselves, have watched in disgust as the rhetoric and roll-out of stimulus monies have somehow managed to avoid them. Trillions of dollars may well be going somewhere, but not to them and not to serve the purposes needed to keep small businesses alive when revenues disappear overnight.

The talk is about keeping employees paid, which to any decent business owner is important. We need our employees. Most of us care about them and are deeply concerned for their survival. And the plan is that when this is over and the doors are unlocked, the phones start ringing again, we want them back in their chairs doing their jobs.

But for that to happen, not only do employees have to survive. So do small businesses. So do small business owners. Apparently, no one in Washington or the media has the slightest grasp of how small businesses function. Continue reading →

It was maybe ten years ago, sitting in a Greek restaurant on the west side of town, eating lunch with Radley Balko, when we talked about how one keeps one’s sanity when one’s job is trying to survive a system that’s stacked against you.

“I make jokes about it.”

“Gallows humor,” Radley replied.

“Exactly. What else can you do? Crying about it won’t change it. You just keep fighting, and so I make jokes.”

You can’t do that anymore. You can’t make jokes about taboo subjects that aren’t funny, which may well be why too many young lawyers are filled with anger, are depressed, and struggle to cope with the life they chose. Continue reading →

Bernie Sanders is out, which doesn’t come as a surprise given that his campaign was doomed to fail except for Bernie’s refusal to accept the notion that he will never be more than a footnote in a socialist history book. Yet, in the minds of his followers, this miraculously gives him greater power than he ever had as a candidate, and they are now flexing their might to make the presumptive Dem candidate, Joe Biden, bend to their will. Will Biden be Bernie’s Bitch?

Bernie Sanders has ended his campaign for the Democratic presidential nomination, which is a tragedy, because he was right about virtually everything. He was right from the very beginning, when he advocated a total overhaul of the American health care system in the 1970s. He remains right now, as a pandemic stresses the meager resources of millions of citizens to their breaking point, and possibly to their death. He was right when he seemed to be the only alarmist in a political climate of complacency. He is right now that he’s the only politician  unsurprised to see drug companies profiteering from a lethal plague with Congress’s help. In politics, as in life, being right isn’t necessarily rewarded. But at least there’s some dignity in it.

If he was so right, why didn’t he beat Biden? Berniebros will argue that the campaign was rigged, that olds just didn’t get it, that Bernie was, well, Bernie. Continue reading →

The irony is overwhelming, starting with the fact that Joe Biden, despite his many other flaws, has played a lead role in perpetrating discrimination on the basis of sex that’s both obvious and express to everyone except Article III judges. As vice president, he traversed the nation to inform men that “it’s on us” to stop raping, to stop our buddies from raping, women, because men are perps and women are victims.

It was one thing to argue that rape ended at the non-consensual sniffing of hair from behind, but in this digital world, how does one ignore an accusation about Biden’s digits? Continue reading →