Like many of us who found the legal theory upon which the New York County “hush money” indictment of Trump problematic, former prosecutor turned prawf Randall Eliason had his doubts.

The New York courts appear to be mixed on this question and there is no definitive ruling from the state’s highest court. If Bragg’s theory is that the false entries were part of a scheme to defraud an agency such as the New York State Board of Elections, then a court might apply this broader definition. If his theory is that it was a scheme to deceive the voters, I think a court is likely to hold that does not constitute fraud. (Part of the problem, as I discuss below, is that we don’t know exactly what Bragg’s legal theory is.)

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The COVID-19 pandemic severely harmed schoolchildren in ways we’re only beginning to fully understand. Loss of instruction time, socialization and structure have repeatedly shown in the past four years to have negatively affected everything from reading comprehension to basic speech. Some states brushed away the problems by abolishing tests and declaring subjects like math racist. My home state of Tennessee, not to be outdone in acts of legislative stupidity, decided to base all of third grade on one pass/fail test.

The Tennessee Learning Loss Remediation and Student Acceleration Act updated the state’s third grade retention requirements and requires intervention for some students before they can be promoted to fourth grade. Starting in the 2022-23 school year, third grade students who score “below expectations” or “approaching expectations” on the third grade ELA TCAP shall not be promoted to the fourth grade unless they meet the requirements.

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There are a few decisions which, by law, are left entirely to the defendant. Whether to plead guilty. Whether to testify. But trial strategy is the lawyers’ domain. And with any other defendant, there is a good chance that the lawyers defending Donald Trump could have mustered a defense that would have sufficiently countered the prosecution’s narrative to get an acquittal, or at least a hung jury. Even with the defense provided, there were serious doubts whether the jury would find the defendant guilty. It did.

The defendant blamed the corrupt judge and rigged trial. He called it a disgrace, over and over.  He lied about his ability to defend himself, claiming the gag order prevented it when the choice was his whether to testify. Of course, testifying would have been critical if he wanted to claim innocence, but then he would have been subject to cross. There is no one who believes he would have done well on cross. Continue reading →

Congressman Jamie Raskin of Maryland has cred that few others in Congress can match, as he was a con law prawf at American University for 25 years before he won office. He must know things, right? So when Raskin opines on the Constitution, people take him seriously. And Rep. Raskin says that the generally-accepted-view that there is nothing to be done about Congress imposing an ethics code on the Supreme Court is wrong.

Everyone assumes that nothing can be done about the recusal situation because the highest court in the land has the lowest ethical standards — no binding ethics code or process outside of personal reflection. Each justice decides for him- or herself whether he or she can be impartial.

Okay, this doesn’t reflect a rational argument in opposition, but it was a nifty turn of phrase. Raskin goes on.

The U.S. Department of Justice — including the U.S. attorney for the District of Columbia, an appointed U.S. special counsel and the solicitor general, all of whom were involved in different ways in the criminal prosecutions underlying these cases and are opposing Mr. Trump’s constitutional and statutory claims — can petition the other seven justices to require Justices Alito and Thomas to recuse themselves not as a matter of grace but as a matter of law.

The Justice Department and Attorney General Merrick Garland can invoke two powerful textual authorities for this motion: the Constitution of the United States, specifically the due process clause, and the federal statute mandating judicial disqualification for questionable impartiality, 28 U.S.C. Section 455.

In other words, they can ask the other justices on the Supreme Court to . . . do something? Granted, there is a strong due process component to having a fair and impartial justice sit in judgment, but that doesn’t mean that one group of justices has any authority to tell another that they’re off the case. There is obviously no process for such a petition, although that doesn’t preclude the attorney general from making up his own form of petition and having it sent over  to the Court. The problem is what would the justices do with it when it got there?

As for 28 USC § 455, relating to the disqualification of judges and justices when their impartiality can reasonably be questions, Raskin makes a strong case that it’s applicable on its terms to the Supreme Court, since there are no justices to be found elsewhere in the federal judiciary. Where the argument unravels, however, is that he neglects to take note of the fact that the judicial branch of government, consisting of the Supreme Court and whatever lower courts Congress may create, is co-equal to Congress.

The Constitution, and the federal laws under it, is the “supreme law of the land,” and the recusal statute explicitly treats Supreme Court justices like other judges[.]

See how he tries to shoe-horn “federal laws under it” into the mix, as if laws enacted by Congress are the same thing as the Constitution. Laws carry weight as to pretty much everyone in government, but they do not enable one branch of government to tie the hands of another.

This recusal statute, if triggered, is not a friendly suggestion. It is Congress’s command, binding on the justices, just as the due process clause is. The Supreme Court cannot disregard this law just because it directly affects one or two of its justices. Ignoring it would trespass on the constitutional separation of powers because the justices would essentially be saying that they have the power to override a congressional command.

Curiously, Raskin argues the a co-equal branch of government would “trespass on the constitutional separation of powers” by not subjecting itself to Congress’ command. While Congress is not without the power to affect the Court, whether by paying salaries to justices, determining the number of justices to sit on the Court (the Constitution only requires a Chief Justice, without any particular number of associate justices), or respecting the Supreme Court’s authority to determine whether its “commands” are constitutional or not, nowhere in the Constitution does it state that Congress gets to command whether another constitutional officer is empowered to perform his constitutional duty.

Even if there were a mandate requiring Supreme Court justices to adhere to a Code of Ethics, which no reasonable person could argue against since no one wants an unethical justice sitting on the Court, there remains the ancillary problem of how it could happen, there being no mechanism by which to charge, investigate and determine whether an ethical lapse occurred. But that is downstream from the solution argued by Raskin, that whether a justice is ethical or not, violates due process by lacking impartiality or not, it is not Congress’ “command” that matters, save for one instance.

If representatives in the House decide that a justice has gone rogue, the Constitution provides for a remedy. Impeachment. Beyond that, Raskin’s cred as a former con law prawf isn’t good enough to carry his argument up the hill.

From the safety and comfort of a tent on a college quad, it’s easy to argue ad nauseam about the horrors of war and why they shouldn’t happen. And it’s similarly easy to do the same from the oval office and halls of Congress. Brett Stephens argues that it’s the reason America has  in the past 50 years gone from the winner of wars to loser.

But what about wars that are existential?

We know how America fought such wars. During the siege of Vicksburg in 1863, hunger “yielded to starvation as dogs, cats, and even rats vanished from the city,” Ron Chernow noted in his biography of Ulysses Grant. The Union did not send food convoys to relieve the suffering of innocent Southerners. Continue reading →

At Volokh Conspiracy, Orin Kerr raises an interesting point about what he calls “meaning assignment.” For years, I’ve challenged the morphing of definitions, from rape to sex, from what were once clearly defined words into vagaries that enable everyone to claim their own idiosyncratic definition. It makes communication rather difficult when we use the same words but either use our personal definition or untether them from any cogent definition. For many, vibes have replaced meaning, and even if they can’t quite offer a definition for their use of a word, they can justify their use by what they claim to be its vibe. Who can argue against a vibe?

But Orin questions the opposite direction, whether others assigning meaning to a word or phrase somehow imputes that meaning to its speaker. Forget Humpty Dumpty, and consider whether the listener is master rather than the speaker. Continue reading →

My father taught me that there was no glory in dying in battle. He served in the European Theater in World War II in the 86th Infantry, the Blackhawk Division. He mostly spoke of how cold it was, but he never forgot the men with whom he served who never made it home. My father hated war, not that there were times it couldn’t be avoided, but he honored those who died and taught me to honor them as well. They didn’t ask to die, but they served knowing it could happen. They went anyway because that was their duty.

Did other fathers teach this lesson to their children? Apparently not. Continue reading →

This wasn’t the same as other protests, as it pitted one group of students against another rather than the government. It was students who embraced the lie that Israel was the oppressor and the Palestinians were the oppressed. It was students who believed the deluge of propaganda pictures and videos that rarely showed what they claimed to show, rarely held up to scrutiny, all designed to play their shallow emotion and feigned claim to be on the side of morality. It was students who claimed to hate Zionists, but not be antisemitic, without the slightest clue how those two things were inherently intertwined.

It was students whose twisted, childish grasp of facts turned terrorists into freedom fighters, who made excuses for why rape was, this time, justifiable. Continue reading →

It was just basic nuttiness, combined with a facile lie and banal Trump ignorance. No, there was nothing about the Mar-a-Lago search warrant that in any way suggested that Biden authorized Trump’s assassination. This was unadulterated lunacy, and naturally swept in the usual lunatic suspects.

I made sure that he knew.

The Biden DOJ and FBI were planning to assassinate Pres Trump and gave the green light.

Does everyone get it yet???!!!!

What are Republicans going to do about it?

I tried to oust our Speaker who funded Biden’s DOJ AND FBI, but Democrats stopped it. https://t.co/XSTevEQsNI pic.twitter.com/o0lUjcEdix

— Rep. Marjorie Taylor Greene🇺🇸 (@RepMTG) May 21, 2024

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THE FROG AND THE SCORPION

Once upon a time, in a vibrant swamp filled with the croaking of frogs and the buzzing of insects, there lived a transgender frog named Frankie. Frankie was a kind and gentle soul, always ready to lend an ear or a helping hand to those in need.

One sunny day, Frankie was basking on a lily pad when a scorpion named Scorpius approached. Scorpius was known throughout the swamp for his sharp wit and cunning nature. He was also well-known for his dislike of bigots, those who judged others based on their differences.

“Hello, Frankie,” Scorpius said, his voice smooth as silk. “I have a proposition for you.”

Frankie, being the trusting frog that he was, listened intently.

“I need to cross this swamp,” Scorpius continued, “but I cannot swim. If you carry me on your back, I will reward you handsomely.”

Frankie considered the offer. He knew of Scorpius’s reputation, but he also knew that a bird in the hand is worth two bigots in a bush. He decided to take the chance.

“Very well, Scorpius,” Frankie said. “I will help you.”

And so, Frankie allowed Scorpius to climb onto his back, and together they began to cross the swamp. As they swam, Scorpius spoke of his adventures and his disdain for bigots. Frankie listened, fascinated by the scorpion’s tales.

When they reached the other side of the swamp, Scorpius thanked Frankie and gave him a bag of gold coins. Frankie was overjoyed. He had taken a risk, and it had paid off.

The moral of the story is: a bird in the hand is worth two bigots in a bush. It is better to take a chance on something that is certain, rather than hold out for something that may never come to fruition. And, of course, it is always wise to stand against bigotry and embrace the differences that make us all unique.

THE PIG AND THE SQUIRREL

Once upon a time, in a lush green forest, there lived a pig named Penelope and a squirrel named Sammy. Penelope was a kind and gentle pig who loved to read books and learn about the world. Sammy, on the other hand, was a mischievous squirrel who enjoyed playing pranks and making fun of others.

One sunny day, Penelope was sitting under a tree, reading a book about the history of the forest, when Sammy came bounding up.

“What are you reading, Piggy?” Sammy asked, his voice filled with disdain.

Penelope looked up from her book and smiled. “It’s a book about the history of our forest,” she said. “It’s quite fascinating.”

Sammy laughed. “You’re a pig, Penelope. What do you know about history?”

Penelope was hurt by Sammy’s words, but she didn’t let it show. Instead, she said, “You’re right, Sammy. I am a pig. But that doesn’t mean I can’t learn about history. After all, don’t judge a book by its cover.”

Sammy was taken aback by Penelope’s words. He had never considered that he might be judging her based on her appearance.

“You’re right, Penelope,” Sammy said, his voice softer now. “I shouldn’t have judged you. I’m sorry.”

Penelope smiled. “It’s okay, Sammy. We all make mistakes. The important thing is that we learn from them.”

From that day on, Sammy stopped judging others based on their appearance. He and Penelope became the best of friends, and they spent many happy days reading books and learning about the world together.

The moral of the story is: don’t judge a book by its cover. It is important to look beyond someone’s appearance and get to know them for who they truly are. After all, everyone has something unique and valuable to offer.

SARAH AND OMAR

Once upon a time, in a land not so far away, there was a prestigious university where students from all walks of life came to learn and grow. Among the many students were two friends, Sarah, a Jewish girl, and Omar, a Palestinian boy. They were both bright and ambitious, and they quickly became inseparable.

One day, Sarah and Omar decided to join the university’s investment club to learn about the exciting world of finance. The club’s first lesson was about the importance of making decisions and sticking to them. The wise old professor told them, “In the world of finance, you must be decisive. Don’t hedge your bets, for indecision is the enemy of success.”

Sarah and Omar took the professor’s words to heart and began to invest in various stocks and bonds. However, they soon realized that the world of finance was not as straightforward as they had thought. There were risks and rewards, ups and downs, and sometimes, it was difficult to know which path to take.

As they continued to learn and grow, Sarah and Omar found themselves facing a difficult decision. A new company had emerged, promising great returns but with a high level of risk. Sarah was hesitant, fearing the potential losses. Omar, on the other hand, was eager to take the risk, believing in the company’s potential for growth.

In the end, Sarah decided to hedge her bets, investing only a small amount in the new company while keeping the majority of her funds in safer investments. Omar, however, went all in, believing in the company’s potential.

As time passed, the new company flourished, and Omar’s investment grew exponentially. Sarah, on the other hand, saw only modest gains from her smaller investment. She realized that by hedging her bets, she had missed out on the opportunity for greater success.

Moral: Don’t hedge your bets, for indecision is the enemy of success. Sometimes, you must take a leap of faith and trust in your decisions.

THE WOLF AND THE SQUIRREL

Once upon a time in the lush forests of Wokeville, there lived a Wolf and a Squirrel. The Wolf was a proud creature, always boasting about his speed and strength. He would often mock the Squirrel for being small and slow, saying, “You’ll never get anywhere in life, you silly little thing.”

But the Squirrel was not one to be discouraged. He knew that his strength lay in his determination and perseverance. He would often reply to the Wolf, “Slow and steady wins the race, my friend. One day, you’ll see.”

One sunny day, the Wolf and the Squirrel decided to have a race. The Wolf, confident in his abilities, laughed and said, “This will be the easiest race of my life.” The Squirrel, on the other hand, simply smiled and said, “We shall see.”

The race began, and the Wolf sprinted ahead, leaving the Squirrel far behind. But the Wolf was so focused on his speed that he didn’t notice the obstacles in his path. He tripped over a fallen branch and tumbled into a ditch.

The Squirrel, on the other hand, moved slowly but steadily. He carefully navigated the obstacles in his path, never losing sight of his goal. He even stopped to help a fallen bird, earning the admiration of the forest creatures.

In the end, the Squirrel reached the finish line first, while the Wolf was still struggling to get out of the ditch. The Wolf was humbled and realized that speed alone was not enough. He apologized to the Squirrel and admitted, “You were right, my friend. Slow and steady does indeed win the race.”

The moral of the story is that determination and perseverance are just as important as speed and strength. It’s not about how fast you can go, but about how far you can go without giving up.