I remember all too well when Twitter came on the scene, threatening the hegemony of the blogosphere as the means by which ordinary folk were able to put thoughts in writing for a broad array of other ordinary folk to read. In the early days, some tried to call it “micro-blogging,” as if to trade off the popularity of the blogosphere by framing it as blogging for people with extremely short attention spans.

In the beginning, I refused to believe it had legs.

Seriously, who has the time for this?  Who cares?  If you want to know what’s going on in the life of the people you care about, speak to them.  Can’t you see the kid with the crackberry flipping back and forth between Facebook and twitter and blogs and email, all while you’re sitting there trying to have a conversation.  He’s living online and ignoring the real person in front of him.  This is progress?

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Anybody want another post about why Harris blew it and Darth Cheeto is a vulgar, deceitful, narcissistic ignoramus? I didn’t think so. Lord knows the ubiquitous post mortems on the election and the four horsemenpeople of the cabinet have beaten it to death.

Having already said all I have to say on these subjects, I’ve got nothing today. So I’m going to try something different and make this an open thread for any subject that you want to discuss, provided it’s not about politics. Maybe nobody has anything else to comment about, which would be fine. It would be great if you keep your pet conspiracy theories, partisan lies and spin and other assorted craziness to yourself.

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One of the things that non-lawyers were often incapable of grasping was the ability of criminal defense lawyers to separate their zealous representation of clients who committed egregious acts from the conduct itself. How, people regularly argued, could you defend a heinous murderer without being a supporter of the heinous murders they committed? After all, if the crimes were appalling, then defending those who committed those crimes was no less appalling, no less supportive of their commission than those who actually committed heinous crimes.

Nah. We defend because defending the accused is a critical part of the system that distinguishes between the guilty and the innocent, that holds the government to its burden and makes certain that the person accused, no matter how heinous the accusation, has been afforded the protections our system requires and has been proven, beyond a reasonable doubt and upon only competent and admissible evidence, to be guilty. Without this, the system fails and trust in the system, which is more important than the conviction of any individual no matter how heinous their crimes, fails. Continue reading →

Had Merrick Garland, the man who should have been justice according to those who cling to the belief that the Supreme Court is illegitimate because then-Majority Leader Mitch McConnell gamed the confirmation process to deny President Obama’s pick his opportunity, named a special prosecutor in 2020, we may have had a very different situation today. Whether it would be better or worse is another matter, but at least any prosecutions pressed against a president would have come to fruition, one way or the other.

But that didn’t happen. What did happen was the American public, fully aware of what happened on January 6th, on the refusal to return classified documents and the lies to conceal their retention, on the hush money payments to a porn star and the concealment of those payments as legal fees, elected the defendant to be president again. Tom Goldstein of SCOTUSBlog argues that the grandest jury America can offer has spoken, and the verdict is not guilty. Continue reading →

Some brilliant Trump guy informed me that elections have consequences when my reaction to the announcement that Trump would nominate Matt Gaetz to be Attorney General was “no.” And he wasn’t wrong that elections have consequences, but that doesn’t mean anything goes. The glory day of Marco Rubio as Secretary of State was over.

Whether it’s Russian envoy Tulsi Gabbard as DNI or Foxy Pete Hegeseth at Defense, Trump may have overplayed his hand to those who only pretend they like him and that he’s not an ignoramus. Continue reading →

There are few things I care less to do than defend the career prosecutors at the Department of Justice, whether Main Justice or the lawyers who staff United States Attorneys offices across the country. In his essay, “The Federal Prosecutor,” Robert H. Jackson, then Solicitor General and later Supreme Court justice, asserted that the duty of the federal prosecutor is to “do justice.” As my pal Bennett responded on twitter, that was always bullshit, and I can’t disagree.

But as much as I’ve spent a career fighting against what federal prosecutors call “justice,” what they were not, with notable exceptions, were unfaithful to the law. The DoJ was independent of the executive branch, and while the emphasis of its prosecutions shifted somewhat with regime change, say from drugs to white collar, from environmental to discrimination, what it was not was the legal arm of the presidency, focusing its power against the individuals and entities as commanded by an offended individual to vindicate that person’s “retribution.” Continue reading →

With Republicans in control of two branches of government, the guardrails will be left to the third branch, the judiciary, if any guardrails there will be. The judiciary, as a whole, and the Supreme Court, in particular, have not always acquiesced to the unconstitutional and capricious acts of the president, whether it involved a Muslim ban or forgiveness of student loan debt.

Then again, it has issued rulings such as Dobbs and United States v. Trump that give rise to serious doubt that it is willing to stand up against the overreaching or downright idiocy of whatever whim pops into Darth Cheetos’ head. The MAGA fanbase is of the view that elections have consequences, and the public has spoken. But the courts, at least theoretically, are not popular institutions and do not make decisions based on the transient desires of the public. Can, and will, the judiciary hold? Continue reading →

In the olden days of the blawgosphere, we typically recognized holidays. Not that there’s much of a blawgosphere anymore, but to the extent there is, holidays seem to pass without remark. But today is Veterans Day, and I would be remiss if I let it pass unnoticed. There are people out there who have chosen to willingly put their lives at risk so the rest of us can argue over nonsense and sleep at night.

My father was one of them, fighting in World War II and, later, serving as public affairs officer for the Lake Worth Inlet Coast Guard station as an auxiliarist until he was 89 years of age. He was one of the few people wearing a CG aux uniform with a combat infantryman’s badge above his Purple Heart. Continue reading →

Remember PINAC (photography is not a crime), when photos and video were taken of public police interactions? Remember how reprehensible “upskirt” photos could not be outlawed because they were taken in public, and there was a First Amendment right to take photos of anything in the public sphere? Remember how woke protesters, who demanded that they not be videoed because they did not give their consent, were told that no one needed their consent to video what happened in public?

Remember when a group in Michigan took videos of people entering and leaving polling places, and the ACLU sought an injunction to stop them from doing so? Continue reading →

Not that his collection of wristwatches was any big deal, despite the media calling it a collection of luxury watches. but whatever they were, they were supposed to be handed over last week, per the order of Southern District of New York Judge Lewis Liman. They weren’t.

“What can be delivered right now?” Judge Lewis J. Liman asked, after peppering lawyers for Mr. Giuliani, the former mayor of New York City, with questions about some of his most prized possessions, among them a signed Joe DiMaggio jersey; 26 designer watches; and a vintage Mercedes-Benz.

Those items, and more, were supposed to be handed over last week to begin paying off a $148 million judgment to two former Georgia election workers whom Mr. Giuliani had defamed. The deadline came and went, and still nothing was turned over.

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