Archives for category: Elections

President Biden announced this morning that the rail industry and the workers’ unions had struck a tentative deal to avert a national rail strike. Such a strike would have crippled the economy and snarled supply chains.

Biden wanted to demonstrate that unions and management could work together, and they did.


“This agreement is validation of what I’ve always believed: Unions and management can work together, can work together, for the benefit of everyone,” he said in remarks in the Rose Garden.

Biden hosted the negotiators who brokered the railway labor agreement before his remarks.

“The negotiators here today. I don’t think they’ve been to bed yet,” Biden said.

The president called into the talks, which were being led by Labor Secretary Marty Walsh, around 9 p.m. Wednesday. Biden said on the call that a shutdown of railways was unacceptable, according to a White House official.

Biden, in his remarks, called the deal a win for America, as well as a win for rail workers and the dignity of work.“This agreement allows us to continue to rebuild a better America, with an economy that truly works for working people and their families. Today is a win, and I mean this sincerely, a win for America,” he said, thanking both business and labor for getting it done

Polymath Bob Shepherd, a frequent contributor to this blog, lives in Florida. He recently received a survey from his member of Congress. He shows how deeply deceptive such a survey can be.

He writes:

I received in my email yesterday yet another transparently biased “survey” from my Flor-uh-duh Congressman Scott Franklin. It read as follows:

Do you support a Parents’ Bill of Rights to increase transparency on what children are being taught in school and how tax dollars are being spent? (yes/no)

Note that the survey DOES NOT ask,

Do you support allowing a handful of backward, provincial, undemocratic, authoritarian, homophobic, transphobic, sexist, white supremacist, Christian nationalist, fundamentalist wackjobs from among the parents in your community to decide what will be taught in your kids’ schools, what books can be in their library, who can teach, and what teachers can and cannot say? (yes/no)

These two questions are in fact equivalent.

The Washington Post reported a new development in the media world. The influential and respected news site Politico was bought by a German billionaire who claims to be nonpartisan. But…

BERLIN — Months after his company bought Politico, Mathias Döpfner stood atop Axel Springer’s 19-story headquarters, gazing out at the double row of cobblestones that mark the outline of the demolished Berlin Wall, and explained his global ambitions. “We want to be the leading digital publisher in democracies around the world,” he said.


A newcomer to the community of billionaire media moguls, Döpfner is given to bold pronouncements and visionary prescriptions. He’s concerned that the American press has become too polarized — legacy brands like the New York Times and The Washington Post drifting to the left, in his view, while conservative media falls under the sway of Trumpian “alternative facts.” So in Politico, the fast-growing Beltway political journal, he sees a grand opportunity.


“We want to prove that being nonpartisan is actually the more successful positioning,” he said in an interview with The Washington Post. He called it his “biggest and most contrarian bet.”


How exactly Döpfner, Axel Springer’s CEO, hopes to define nonpartisan journalism at an especially fragmented time for American politics is a question of intense interest as he aims to leave his mark on American media. His own politics have remained something of a mystery, too. But weeks before the 2020 U.S. presidential election, he sent a surprising message to his closest executives, obtained by The Washington Post:
“Do we all want to get together for an hour in the morning on November 3 and pray that Donald Trump will again become President of the United States of America?”

Donald Trump may be the most litigious person in the United States. On March 24, 2022, Trump filed a lawsuit against Hillary Clinton and various Democratic Party leaders for engaging in a conspiracy against him in 2016. The federal judge tossed the case out yesterday.

Believe me, this is a fun read. The judge is frankly mystified by the legal reasoning and the lack of evidence.

Here is the beginning:

I. BACKGROUND
Plaintiff initiated this lawsuit on March 24, 2022, alleging that “the Defendants, blinded by political ambition, orchestrated a malicious conspiracy to disseminate patently false and injurious information about Donald J. Trump and his campaign, all in the hopes of destroying his life, his political career and rigging the 2016 Presidential Election in favor of Hillary Clinton.” (DE 177, Am. Compl. ¶ 9). On this general premise, Plaintiff brings a claim for violations of the Racketeer Influenced and Corrupt Organizations Act (“RICO”), predicated on the theft of trade secrets,

Case 2:22-cv-14102-DMM Document 267 Entered on FLSD Docket 09/08/2022 Page 2 of 65
obstruction of justice, and wire fraud (Count I). He additionally brings claims for: injurious falsehood (Count III); malicious prosecution (Count V); violations of the Computer Fraud and Abuse Act (“CFAA”) (Count VII); theft of trade secrets under the Defend Trade Secrets Act of 2016 (“DTSA”) (Count VIII); and violations of the Stored Communications Act (“SCA”) (Count IX). The Amended Complaint also contains counts for various conspiracy charges and theories of agency and vicarious liability. (Counts II, IV, VI, and X–XVI).
Plaintiff’s theory of this case, set forth over 527 paragraphs in the first 118 pages of the Amended Complaint, is difficult to summarize in a concise and cohesive manner. It was certainly not presented that way. Nevertheless, I will attempt to distill it here.
The short version: Plaintiff alleges that the Defendants “[a]cting in concert . . . maliciously conspired to weave a false narrative that their Republican opponent, Donald J. Trump, was colluding with a hostile foreign sovereignty.” (Am. Compl. ¶ 1). The Defendants effectuated this alleged conspiracy through two core efforts. “[O]n one front, Perkins Coie partner Mark Elias led an effort to produce spurious ‘opposition research’ claiming to reveal illicit ties between the Trump campaign and Russian operatives.” (Id. ¶ 3). To that end, Defendant Hillary Clinton and her campaign, the Democratic National Committee, and lawyers for the Campaign and the Committee allegedly hired Defendant Fusion GPS to fabricate the Steele Dossier. (Id. ¶ 4). “[O]n a separate front, Perkins Coie partner Michael Sussman headed a campaign to develop misleading evidence of a bogus ‘back channel’ connection between e-mail servers at Trump Tower and a Russian- owned bank.” (Id.). Clinton and her operatives allegedly hired Defendant Rodney Joffe to exploit his access to Domain Name Systems (“DNS”) data, via Defendant Neustar, to investigate and ultimately manufacture a suspicious pattern of activity between Trump-related servers and a Russian bank with ties to Vladimir Putin, Alfa Bank. (Id. ¶ 3). As a result of this “fraudulent
2

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evidence,” the Federal Bureau of Investigations (“FBI”) commenced “several large-scale investigations,” which were “prolonged and exacerbated by the presence of a small faction of Clinton loyalists who were well-positioned within the Department of Justice”—Defendants James Comey, Andrew McCabe, Peter Strzok, Lisa Page, Kevin Clinesmith, and Bruce Ohr. (Id. ¶ 7). And while this was ongoing, the Defendants allegedly “seized on the opportunity to publicly malign Donald J. Trump by instigating a full-blown media frenzy.” (Id. ¶ 6). As a result of this “multi-pronged attack,” Plaintiff claims to have amassed $24 million in damages.1 (Id. ¶ 527).
Defendants now move to dismiss the Amended Complaint as “a series of disconnected political disputes that Plaintiff has alchemized into a sweeping conspiracy among the many individuals Plaintiff believes to have aggrieved him.” (DE 226 at 1). They argue that dismissal is warranted because Plaintiff’s claims are both “hopelessly stale”—that is, foreclosed by the applicable statutes of limitations—and because they fail on the merits “in multiple independent respects.” (Id. at 2). As they view it, “[w]hatever the utilities of [the Amended Complaint] as a fundraising tool, a press release, or a list of political grievances, it has no merit as a lawsuit.” (Id.). I agree. In the discussion that follows, I first address the Amended Complaint’s structural deficiencies. I then turn to subject matter jurisdiction and the personal jurisdiction arguments raised by certain Defendants. Finally, I assess the sufficiency of the allegations as to each of the substantive counts.

John Thompson, historian and retired teacher in Oklahoma, reviews Dana Milbank’s new book about the crackup of the Republican Party. As I have often said, Milbank is my favorite columnist in the Washington Post.

Thompson writes:

Dana Milbank’s The Destructionists: The Twenty-Five-Year Crack-Up of the Republican Party is based on his quarter of a century of political reporting. From 1992 to the present the Republicans won the popular vote only once. There were calls for diversity in their party in order to reach more voters, but it went in the opposite direction. In the 1990s, the false and polarizing propaganda of Rush Limbaugh, G. Gordon Liddy, Sean Hannity, and Fox News took off, as Newt Gingrich became the key political driver of an ideology that would dismantle legislative norms and institutions.

This piece only has room for a brief overview of the 90s. I assume that readers will see and will be shocked by the cruelty and lies of that decade, and how they foreshadow today’s assaults on democracy.

Milbank starts with the suicide of the Clintons’ aide, Vince Foster. Rush Limbaugh, who called the 13-year-old Chelsea Clinton “the White House dog,” claimed, “Foster was murdered in an apartment owned by Hillary Clinton.”

The prime donor of Gingrich’s political training organization, the Global Organization of Parliamentarians Against Corruption (GOPAC) was Mellon Scaife. Scaife then joined with Christopher Ruddy, who would become Donald Trump’s friend and informal advisor, to found Newsmax. They said Vince Foster’s death showed that Bill Clinton “can order people done away with … God there must be 60 people who have died mysteriously.” (By the way, such words didn’t keep Oklahoma Governor Frank Keating or Congressman J.C. Watts from helping to lead GOPAC.)

Brett Kavanaugh, who assisted in Ken Starr’s investigations of Bill Clinton and helped draft the Starr Report, knew as early as 1995 that “I am satisfied that Foster was sufficiently discouraged or depressed to commit suicide.” But he spent two years investigating, thus legitimizing, what Milbank called “all of the ludicrous claims.” In Kavanaugh’s files, that were released two decades later, were 195 pages of articles by Ruddy and Limbaugh’s transcript on the case.

Milbank writes that once Gingrich became Speaker of House in 1995, he “threw the weight of the speakership behind the Foster conspiracy theory.” That year, Ruddy, Scaife and Newsmax, would spread the lies further.

(By 2016, Rep. Pete Olson said that Bill Clinton admitted to A.G. Loretta Lynch that “we killed Vince Foster.” And Trump said the charges that Foster was murdered are “very serious.” And Milbank concluded that Justice Kavanaugh was not the most ideological of the Supreme Court’s majority, but he was the most political.)

Milbank explains how rightwingers encouraged violence. After the Waco tragedy of 1993, G. Gordon Liddy said of the ATF agents, “Kill the son-of-a-bitches.” Sen. Jesse Helms said “Mr. Clinton better watch his guard if he comes down here (North Carolina). He’d better have a bodyguard.”

Moreover, even though the Fish and Wildlife Department didn’t have helicopters, Rep. Helen Chenoweth said they were “sending armed agency officials and helicopters” to enforce regulations and “if they didn’t stop, I will be their “worst nightmare.”

In 1995, the Oklahoma City bombing of the Murrah Building killed 168 people; Timothy McVeigh said his terrorist act was designed “to put a check on government abuse of power.” But some rightwingers claimed the bombing “was really a botched plot” by the FBI.

Also, Limbaugh asserted, “President Clinton’s ties to the domestic terrorism of Oklahoma City are tangible.” And Gingrich responded by defending the “genuine fears” of rural America regarding the federal government, and doubled down on repealing of the assault weapons ban.

Milbank goes into detail recounting how Gingrich “changed forever the language of politics.” Gingrich quoted Mao saying, “Politics is war without blood.” And he repeatedly made charges such as the Democrats “‘trash’ America, indict the president and give the benefit of every doubt to Marxist regimes.”

In 1977, a year before Gingrich was first elected, Milbank reports that a Gallup poll found that 40% of Americans had “a great deal” or “quite a lot” of confidence in Congress. After 15 years of his “relentless” attacks, that number was down to 18%. Gingrich then undermined congressional norms that encouraged compromise and constructive actions. During his legislative career, committee and sub-committee meetings dropped by nearly half. By 2017, they had dropped by almost 75%. The ability of Presidents to get laws passed was also undermined. Presidents’ legislative victories dropped from 73% of the agenda under Nixon. At the beginning of the Clinton term, he had a victory rate of 87% but by 2016, President Obama’s rate was 13%.

Another pivotal change occurred after the 1996 defeat of Bob Dole. Republican aide Margaret Tutwiler said, “We’re going to have to take on [board] the religious nuts.” A couple of decades later, White evangelicals were only 15% of the US population but about 40% of Trump’s voters.

And with the arrival of Karl Rove’s anti-gay “whisper campaign” against George W. Bush’s opponent, Ann Richards, personal attacks escalated dramatically. Another example of campaign lies was the attack on Sen. John McCain’s mental stability, and the claim he had “fathered an illegitimate black child.” Actually McCain had adopted a daughter from a Bangladesh orphanage.

Although I had been horrified by the behaviors of the rightwing, Milbank’s details provided me a much better understanding of how the views I’ve held allowed me to remain excessively optimistic. I used to believe that it was deindustrialization and the loss of economic opportunity (accelerated by Reagan’s job-killing Supply Side economics) that mostly fed the racism which propelled Trump into the White House. Now I’m convinced by Milbank’s evidence that it was racism – not economics – that spurred Trumpism.

Also, I had misremembered Mitch McConnell’s record in the 1990s. In 1993, McConnell joined Strom Thurmond and Jesse Helms in defending the Confederate flag on the Senate floor, saying, “My roots … run deep in the Southern part of the country.” And he stood before a huge Confederate flag at a meeting of the Sons of Confederate Veterans.

In 1997, McConnell said in a fundraising letter, “Help to protect our country from a potentially devastating nuclear attack.” And he alleged, Clinton’s White House was “sold for ILLEGAL FOREIGN CASH”

I’m assuming that readers of this blog will quickly understand how the Alt Facts spread by politicians like Gingrich are linked to today’s crises. By 2018, only 16% of Republicans trusted the media over Trump. In 2020, people who said they were “very happy” dropped to 14% compared to the previous low of 29%.

Two years later, the attempted kidnapping of Gov. Gretchen Whitmer showed how the worsening rhetoric was putting people in danger. In 2019, hate crimes increased by 30%, and over 18 months in 2020 and 2021, the FBI nearly tripled its domestic terrorism caseload. FBI director Christopher Wray said, “The violence in 2020 is unlike what we’ve seen in quite some time.” And who knows what the numbers are in the wake of Trump’s response to the subpoenaing of the Secret documents?

The 25-year rightwing siege and Trumpism has put our democracy at risk. Being from Oklahoma City, I’m increasingly worried about the chances of bloodshed. And I’m doubly concerned after reading The Destructionists.

In 1994, Vice President Al Gore explained, “The Republicans are determined to wreck Congress in order to control it – and then wreck a presidency in order to recapture it.” Now, Milbank concludes. “A quarter century after a truck bomb set by an antigovernment extremist … Republicans have lit a fuse on democracy itself.”

Harvard law professor Laurence Tribe was interviewed by the Washington Post about the Supreme Court. His answers were very informative. He refers to the current Court as “the Thomas court.”

Do you consider the Supreme Court to be in crisis now?


Yes. I have no doubt that the court is at a point that is far more dangerous and damaging to the country than at any other point, probably, since Dred Scott. And, in a way, because we even find Justice [Clarence] Thomas going back and citing Dred Scott favorably in his opinion on firearms, the court is dragging the country back into a terrible, terrible time. So I think that it’s never been in greater danger or more dangerous
….

You testified against [failed 1987 conservative Supreme Court nominee] Robert Bork a long time ago and alluded to the kind of vision that he would have brought had he been on the Supreme Court. Where do you see the justices now on that spectrum — do you consider them to be similar to Bork?


I think there are five Robert Borks on the court right now.


Do you really?


And they are, in fact, probably to his right — that is, Robert Bork at least seemed to believe in preserving those aspects of free speech that conduced to meaningful democratic self-governance. That is, I didn’t see in Robert Bork the disregard for democracy, writ large, that I see in the current Supreme Court majority led by Clarence Thomas. And it is now surely more the Thomas court than it is the Roberts court.
Bork and the current justices, I think, were pretty much in the same place with respect to privacy. They all thought that Griswold v. Connecticut was wrong. And I think Thomas is much more candid than Alito in saying that he would certainly get rid of the right as a people to decide to use birth control, to use contraceptives, to have sex for purposes other than procreation. I think that it’s clear that they are going in that direction.

Take a case like Loving v. Virginia, which should matter to Clarence Thomas, given that he is himself, obviously, in an interracial marriage. There’s no basis for it in the Bork universe because, in the Bork universe, the original meaning of the Constitution is to be derived by what it looked like in 1868 or so. Racial intermarriage was unthinkable at that time. And neither the due process nor the equal protection bases of Loving or of Obergefell [v. Hodges] fit into the universe that Robert Bork envisioned.
What happened to Robert Bork is that he was more candid than people like Barrett,[Brett] Kavanaugh and Gorsuch and Alito and Thomas about their views. Remember when Thomas testified, he said he hadn’t even discussed Roe v. Wade. He barely knew the name of the case. And that, when he was a justice, he would basically be like a runner who would be stripped down bare and would start afresh and have no preconceptions and no agendas. What utter BS. I mean, I don’t expect anyone to come to a court with a blank slate — an empty mind, an empty heart. People bring experiences and ideas. But at least something of an open mind. These people don’t appear to have an open mind. It’s clear, on the things that are agenda items for them, they know exactly where they’re going to come out. And although they don’t literally lie under oath when being asked by Susan Collins, “Do you think this is precedent?” “Oh, yes. Oh, yes, it’s precedent,” they certainly were misleading. So it does feel like Robert Bork redux. It feels like “Back to the Future.” Except it’s back to a terrible past.

Do you think justices can be or ever were impartial? Is that an ideal that can be attained?

The court has always been quite political. And throughout much of our history, it’s been quite regressive. It is kind of a myth that the Supreme Court has been, you know, the shining city on the hill. It’s only during the very brief period from 1957 to 1969 or so, during the [Earl] Warren years, that the court really performed the function of ensuring one person, one vote, and moving toward racial and gender equality. That was a limited period. The court, for most of its history, has been very much in the thrall of economically and politically powerful groups. It retarded the progress after the Civil War by invalidating the civil rights acts and its invalidation of parts of the Voting Rights Act was fairly typical.

So I don’t have any illusion that the court was ever really neutral, nor do I think one can really define a point of neutrality. The idea that judges could be apolitical doesn’t make sense. But they can at least be fair. They can listen. They can give reasons for what they do and not have points of view that are so closed and preset that you might as well have an algorithm as a group of human beings. And what the current court is doing more than any court in our history that I can think of is simply saying, “It’s so because we say it’s so.” And then pull out things that are so transparently not arguments.

The entire interview is fascinating but too long to copy. I hope you can open it and read it.

For example, when Justice Alito says in the majority opinion in Dobbs: Don’t worry, this will have no implications for contraception; it’s special because it involves potential life. Well, of course, so does contraception involve potential life. And besides, he’s equating a definition with an argument. The underpinnings of his theory are that if you don’t find it written down in the Constitution — or in a history that goes back far enough that he’s citing judges who favored burning women as witches — if you don’t find those roots, it doesn’t exist. Well, if you apply that logic, it wipes out whole swaths of rights. So that’s not what I call a fair argument. That’s simply basically saying, you know, “I’ve got the votes, and so shut up.”

Sarasota, where DeSantis candidates won the school board, is a very conservative district.

Polk County went for Trump in the past; 52% of its voters are Republicans. But Ron DeSantis’ conservative slate lost.

Billy Townsend explains the surprising outcome.

And he concludes that if DeSantis can’t win Polk County, he’s in trouble.

To recap: Chief crank Ron DeSantis and his Polk GOP hench-cranks succeeded completely in making the Polk School Board elections partisan. In doing so, they lost basically every geographical engine of growth, commerce, creativity, and civic life in Polk County. And they added some functional chunk of Republican primary voters to the generic Polk County Democratic political coalition, at least for a night. Well played, GOP.

Charlie Crist, the Democratic candidate for governor of Florida, will choose Karla Hernandez-Mats as his running mate, according to the Miami Herald. She is the president of the Miami-Dade teachers’ union. She is also a wonderful person. She is articulate and super-smart. I met her in Miami in February 2020 when I had an event to promote Slaying Goliath at Miami’s famous bookstore “Books & Books.” Karla interviewed me, and she was terrific.

Help Charlie Crist and Karla Hernandez-Mats defeat DeSantis, the man who censors books, bans discussions of racism and gender, opposes women’s right to an abortion, and wants to destroy public schools in Florida.

Help Florida join the 21st century!

Charlie Crist, the Democratic Party’s candidate for governor, has selected the head of Miami-Dade County’s teachers union as his running mate to take on Gov. Ron DeSantis in the fall, the Miami Herald has confirmed. Three sources briefed on Crist’s decision confirmed the choice of Karla Hernandez-Mats, which was first reported by CBSMiami. The Crist campaign declined to confirm the news. An announcement is expected Saturday.

Read more at: https://www.miamiherald.com/article264963034.html#storylink=cpy

Dahlia Lithwick, writing in Slate, makes three important points about the ongoing controversy over abortion and the Supreme Court’s overturning of Roe v. Wade. The anti-abortion movement is not satisfied because they want more than a decision that allows some states to offer abortions.

First, their real goal is a national ban on abortion and a declaration that a fetus has all the rights of a person. They want fetal personhood, in every state.

Second, since the Dobbs’ decision reversing Roe, large numbers of Republicans have expressed their opposition to the decision.

Third, post-Dobbs, expect to read frequent stories about women who died because they were denied an abortion; about women forced to carry dead fetuses for the full term of pregnancy; of children forced to give birth because they are “too immature” to have an abortion.

The only good news in this tragic turn of events is that Republicans who support abortion extremists may face a backlash.

She writes:

It’s being called “Roevember,” a reckoning around women’s rights and fundamental liberties that hasn’t been witnessed since the shaggy-haired days of the ERA. As Jeremy Stahl noted just last week, recent polling seems to show that women are pretty affirmatively pissed off about Roe v. Wade being overturned, and it’s affecting a set of key Senate races, in addition to down-ballot contests around the country. Mark Joseph Stern and I wrote recently that there is virtually no other way to assess the beatdown Kansas voters recently unleashed upon an amendment that would have removed abortion rights from their state constitution than as a repudiation of the Supreme Court’s recent Dobbs intervention, and a promise that even in ruby red states, and even among ruby red voters, only a tiny minority of female voters would endorse forcing teen girls to carry pregnancies to term. After Dobbs came down at the end of June, Kansas reported a 1,038 percent increase in voter registrations that week alone, compared just with the week before.

Yes, even Republican women get abortions. Even conservative women get abortions. Having had the “right” to an abortion and control of their bodies for almost half a century, many women will find it hard to give up their reproductive rights.

Miami’s school board was “flipped” by the election of two 1776 extremists. This is a disaster for one of the nation’s largest districts.

Jennifer Cohn ✍🏻 📢⁦‪@jennycohn1‬⁩😳🥵😢 Dear God. This is a disaster for Florida public schools. ⁦‪@DianeRavitch‬⁩ #FlaPolpic.twitter.com/oE6x5gAmjA