I wasn’t a big fan of Hercules and the Umpire at first. Frankly, it wasn’t until Tamara Tabo pushed me to check it out that I read anything there. After all, what does a criminal defense lawyer from New York care about what some federal judge in Nebraska has to say? That was more Above the Law’s David Lat territory. But one day I checked it out, and Judge Richard G. Kopf was not at all what I expected.

Sure, we were far apart on our views of the law, Judge Kopf never met a prosecutor he didn’t trust and thought Bill Barr, who was AG when he was nominated by Bush I, was a good guy. But he was honest about being a judge, the law, and himself. The first email I ever received from Judge Kopf started, “I [expletive deleted] love bacon.” No other federal judge wrote that to me. Continue reading →

Some of you may recall that I, along with my German son, did a weekly interview at Fault Lines called “Cross.” At one point, I asked Supreme Court advocate and founder of SCOTUSBlog, Tom Goldstein, if he would do an interview. He refused because, as he told me, he was angry with me. For one thing, I was highly critical of him in Florence v. Board of Chosen Freeholders and, when SCOTUSBlog decided to monetize, refused to be a part of the scheme.

As it turns out, I should have been nicer to Tom so he would have done the Cross, as he may have lived a far more interesting life than I imagined. Continue reading →

Not being a veteran, a military scholar or a person with any knowledge of defense beyond what I read in the newspapers, I’m going to accept what David Brooks says as fact. We are screwed. (Please forgive the lengthy quote.)

• The secretary general of NATO, Mark Rutte, has said that the West is not prepared for the challenges that will come over the next five years and that it’s time to “shift to a wartime mind-set.” Kori Schake, who directs foreign and defense policy studies at the American Enterprise Institute, writes that while World War III has not begun, “a world war is approaching.”
• Recent American defense strategy has been based on the optimistic assumption that we will have to fight only one war at a time. But the closer cooperation between China, Russia, Iran and North Korea make a coordinated attack more likely, meaning we may have to fight three or four regional wars simultaneously. Continue reading →

There seemed to be little reason to discuss Jack Smith’s report with regard to Trump’s January 6th prosecution as it provided little new beyond his rationale for not charging Trump with insurrection. That Smith determined that a prosecution was appropriate, and an indictment obtained, reflects the position that there was legally sufficient evidence of guilt. Had there not been, it would have been unethical for Smith to pursue a prosecution and the indictment would (or at least should) have been dismissed for legal insufficiency.

Critically, however, this is not the same thing as saying that, had the case gone to trial, Trump would have been convicted. Continue reading →

In the not too distant past, I’ve described elections as a person in a pit fill with vomit about to have a bucket of feces dumped on his head. Should he duck? We have a two-party system, no matter what the libertarians say, and for a great many Americans, perhaps even the majority, the choice is no longer acceptable as neither party represents their will.

In early 2020, Representative Alexandria Ocasio-Cortez, the progressive Democrat from New York, was asked to speculate about her role under a Joe Biden presidency. She groaned. “In any other country, Joe Biden and I would not be in the same party,” she said, “but in America, we are.” Continue reading →

A primary justification for taking a government job was job security. After all, it’s not as if the government is going out of business anytime soon. But that may not quite be the case as the Trump administration takes over, promising to create massive disruption in the federal workforce for two independent reasons. The first is the promise to decimate the federal bureaucracy, eliminating wasteful departments and personnel. The second is the elimination of personnel who fail to swear fealty to Trump, where loyalty is the foremost criteria for employment rather than competence, experience or fealty to the Constitution.

Stacey Young, a lawyer in the Office of Civil Rights in the Department of Justice, asks whether federal employees should stick it out or cut and run. Continue reading →

A surgeon I knew very well once told me that there were surgeons who came by their skills naturally, and surgeons who were plodders and just worked hard to gain a mastery of their craft despite their limitations. It gave me pause to wonder which, if I had to choose, would prove to be the better surgeon. After all, when it comes to something one really wants to survive like surgery, who wouldn’t want the best he could get?

Wharton School organizational psychologist Adam Grant wrote a controversial op-ed about effort and mastery. Meritocracy has become a dirty word, both because of rationalizations that it doesn’t exist and contentions that it’s a mask for discrimination against the less able. Continue reading →

Being the spouse of a doctor means you’re going to inevitably get free shit. There are many organizations, vendors and such that want your partner’s attention and they will eventually try to ply said attention with all manner of tchotchkes.

Usually these will be pens, pencils or notepads. Occasionally someone will get cute and give out frisbees or keychains. Recently, my dear Dr. S was gifted something unusual: a Stanley water bottle. Continue reading →

Donald Trump will be sentenced today by Acting Justice of the New York State Supreme Court, Juan Merchan, upon his conviction for 34 felonies. Absent any monumental change in circumstances, his sentence will consist of a stern look and admonition to never do it again. Whether Trump can control himself from using his opportunity to address the court to convince Justice Merchan that an unconditional discharge is inadequate remains to be seen, but assuming so, the entire matter will be over quickly with little muss or fuss, or consequences beyond the obligatory post-sentence appeal to the Appellate Division of the Supreme Court, First Department.

So why did four justices of the Supreme Court of the United States vote to stay this proceeding? Continue reading →

The 118th Congress didn’t do much, but it did enact the Protecting Americans from Foreign Adversary Controlled Applications Act which, effectively, will ban TikTok. The rationale is that the owner of TikTok, ByteDance, is integrally related to or controlled by the Chinese communist party. As such, it can harvest the information available through the platform and use it to misinform and influence the American public.

The problem, of course, is that people love TikTok, where Trump claims to be “one of the most powerful, prolific, and influential users of social media in history,” shy and reticent fellow he is. If TikTok is bought from ByteDance by an entity that isn’t controlled by a foreign adversary, then the problem is fixed. If not, the law would ban TikTok, and by doing so, would cut off the platform from being employed by its many users to convey their speech. Continue reading →