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2020 Election Map

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There are more Trump voters in California than Texas, more Biden voters in Texas than New York, more Trump voters in New York than Ohio, more Biden voters in Ohio than Massachusetts, more Trump voters in Massachusetts than Mississippi, and more Biden voters in Mississippi than Vermont.
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32 days ago
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31 days ago
There are more voters in DFW than all of Oklahoma.
32 days ago
There are more Trump voters in California than Texas, more Biden voters in Texas than New York, more Trump voters in New York than Ohio, more Biden voters in Ohio than Massachusetts, more Trump voters in Massachusetts than Mississippi, and more Biden voters in Mississippi than Vermont.

"crony capitalism"

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This term has been getting stuck in my craw lately: “crony capitalism.” It’s used by self-described libertarians I know to characterize capitalism under regulations that create a playing field tilted in the favor of oligarchs and megacorps.

The reason it bothers me is that it’s a patch to hide their cognitive dissonance. It lets them maintain their faith in the Unseen Hand of the Free Market by dismissing the real-world effects of capitalism as aberrations. I called it a distinction without a difference once, but that makes it sound innocuous. In reality, conjuring that distinction perpetuates the destruction of our world.

But I need to back up. Let’s start with the basics. Basic economics explains a market as an emergent system which efficiently determines prices of goods and services based on supply and demand. Competition incentivizes merchants to produce more and better offerings to gain an edge. The “unseen hand” of aggregated individual self-interest drives prices towards an ideal equilibrium. As circumstances change, the market adjusts automatically. Resources that can be used for more than one purpose are allocated automatically as prices adjust to compensate.

Spoiler alert: this simplified model doesn’t hold up in the real world. It’s a spherical cow model, like the epidemiological models created by physicists that led to CoV-2 outbreaks at the University of Illinois.

If you need some help with the math, let me know, but that should be enough to get you started! Huh? No, I don't need to read your thesis, I can imagine roughly what it says.

Economists create more complicated models to reduce the margin of error, but even those miss things, and as far as I can tell most libertarians are still running on the basic mental model. A few of the ways it doesn’t fit the real world:

  • negotiating power - in most transactions, one side has greater negotiating power than the other, and that influences the price. This is especially significant when only one side has the option of walking away from the negotiation altogether, such as when a pharmaceutical company sells medication that patients cannot survive without, and to a large extent in the labor market when individuals can’t get adequate food and shelter without a job.

  • tragedy of the commons - limited resources are exhausted to produce goods and services, and the profit motive all but forces actors (corporations or individuals) to externalize as many of their costs as possible. This means pollution is unaddressed by the polluters, and resources which can be used profitably will be used regardless of whether they should be, like fossil fuels and surfactants.

  • the snowdrift problem - some problems can be conceptualized as a snowdrift blocking a road. This would be a situation that would hinder many of us, and would take only one or a few of us to clear. The first person to clear it has to do the work and gains the benefit, but everyone else gains the benefit at no cost. Problems like this abound in the real world; support of open-source software is one example. Other problems are mathematically equivalent but are more readily imagined as a game of Chicken, where participants drive directly at each other and the first to swerve loses, but if no one changes course all players lose. Ecological destruction fits this frame, though at this point it requires all of the most powerful actors to swerve.

  • amorality - market economics is amoral; that is, it does not have or care about morals. We saw in 2008 how easy it is for moral decisions to be elided in organizations. Most individual employees participating in destructive behavior are not in a position to see the scope or change the course of it, and so the system continues. It should be pretty obvious that any two orthogonal systems (in this case, capitalism and morality) are going to inevitably encounter situations where they are in conflict. Believers in the Unseen Hand will say that the market can correct for this, as buyers exercise their moral judgment in choosing what to buy. That would only work if you assume that morally superior options are always available, and even then it would fail because of:

  • hidden information - the basic model assumes all actors have perfect information at all times. This is quite obviously not the case and never can be. Indeed, participants are incentivized to muddy the waters and make it harder for others to obtain reliable information, as we have seen over and over again, from cigarettes causing cancer to fossil fuels and animal agriculture contributing to climate change. In reality each actor has access to only a small fraction of relevant data at best, with the vast majority of what they have access to directly provided by people working against their interests.

  • anti-competitive practices - by definition a successful market competitor is one that performs better than its rivals, by taking advantage of every edge it can. Some of these will be innovations but many will be ways of either crippling competitors or exploiting of the rules of the game. That is what participants are supposed to try to do, and it inevitably leads to consolidated giant monopolistic/monopsonistic corporations, who can either buy or crush new competitors with sheer scale, or warp markets in other ways no less harmful but hidden from the direct view of consumers (see Amazon).

  • shifting rules - once competitors reach a certain level of clout, they can use that power to push for changes to the rules of the game, obviously in their favor. From the perspective of a giant corporation, this is the completely rational, correct decision, yet in aggregate it results in a complete collapse of the purported benefits of capitalism: innovation and improved standard of living.

  • boom and bust cycles - markets tend to fall into cyclic patterns, and while investors have the luxury of viewing this as simply the way things are, real people’s lives are thrown into crisis with every bust. The fitness function of the market doesn’t optimize for universal benefit.

None of these are things a free market can correct for without intervention. It’s baffling to me how someone could convince themselves that all of this is just “crony capitalism,” the result of a few bad actors (behaving exactly as the system tells them to by) bending the rules. They then go on to conclude that the rules are the problem rather than that the system needs better rules.

The other system which comes into play here is democracy, and it is always in tension with capitalism. That’s because democracy hinges on power being as diluted as possible: one vote per person, with everyone getting a vote, while capitalism inherently runs on inequality, with a capitalist class investing in the labor of a worker class to create profit for themselves, and naturally tends towards concentrations of power. When capitalism inevitably creates its winners (who will continue to win and win and win while everyone else loses, since we don’t get to start the game over as we do with Monopoly), they will subvert democracy however they can to maintain that power.

One of the most readily exploited levers in American democracy is the fact that we vote for people rather than policies, and that we vote for those people in a two-party system. When an oligarch wants some change in their favor, they don’t have to convince all of us that it’s in our interest, they only have to convince those holding public office. They don’t care which party that official declares, just that money can buy influence. And when politicians want your vote, they get to capture it not by demonstrating that everything they stand for is in your interest, just that the few things most important to you are. So the wealthy, not really caring one way or the other about how you run your life, can give you life-or-death decisions to vote on, like abortion and LBGTQ+ rights, while either way they get what they want: endless wars to funnel defense budgets into their pockets, unlimited ability to move money around the world, tax loopholes to keep their hoards safe, unrestricted anonymous financial influence in politics, continued ability to profit off of health crises, etc.

We can’t correct any of this without regulating capitalism.

We need to always be moving further and further in the direction of democracy and equality. We need to do everything we can to limit the political power of the wealthy. Abolish the electoral college, defend and expand voting rights and anti-discrimination laws, correct gerrymandering, make elections publicly funded with each candidate receiving the exact same budget and allowing no other spending on campaigns, and as much as possible we must move toward direct democracy. Let us vote on laws and policies, so that we can choose what we want á la carte rather than being stuck with the equivalent of a cable bundle that charges us for two hundred channels we don’t want in order to get the three we do.

We must correct the failings of capitalism using the only power we can: government regulation. Bust monopolies, enforce interoperability to enable tech competition, and address the problems capitalism never will: poverty, homelessness, unemployment, and the like. The base of Maslow’s hierarchy.

Because there’s no such thing as “crony capitalism.” There is just capitalism, and it can only fulfill its promise if we keep it on a tight leash.

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Neo-Fascist Proud Boys Exult Over Trump Telling Them to "Stand By," Not Stand Down

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President Donald Trump thrilled members of the violent far-right gang known as the Proud Boys on Tuesday when he responded to a question from debate moderator Chris Wallace, about whether he would be willing to tell white supremacists and militia groups that support him to stand down, by instead telling that group to “stand back and stand by.”

While the president’s reply struck some observers as more evidence of his inability to stem the torrent of half-digested thoughts and phrases that fly from his lips in an incoherent jumble, leaders of the neo-fascist group exulted on the social media platforms Telegram and Parler, seeing the answer as a call to inflict violence on left-wing antifascist activists and protesters.

“Trump basically said to go fuck them up! this makes me so happy,” Joe Biggs, who organized a Proud Boys rally that drew an embarrassingly small crowd of a few hundred in Portland, Oregon on Saturday, wrote. Biggs had reason to be encouraged, since Trump did stop short of actually condemning the group, pivoting instead to say: “But I’ll tell you what, I’ll tell you what, somebody’s got to do something about antifa and the left, because this is not a right-wing problem… this is a left-wing problem.”

A screenshot from Parler, a right-wing social media platform.

In response to Trump’s comment, Biden noted that Christopher Wray, “his own F.B.I. director, said the threat comes from white supremacists; antifa’s an idea, not an organization.” Wray told Congress two weeks ago that “we look at antifa as more of an ideology or a movement than an organization.”

“Oh come on,” Trump replied, clearly shocked to hear the truth — that loosely affiliated antifascist groups dedicated to confronting white supremacists and neo-fascists like the Proud Boys are not a domestic terrorist organization. “Antifa is a dangerous, radical group,” Trump insisted, echoing the core imaginary belief of the Proud Boys he was supposed to be condemning.

The Proud Boys founder, Gavin McInnes, has described what the Southern Poverty Law Center calls a hate group as a “Western chauvinist” fraternal order that promotes violence against left-wing protesters, and embraces anti-immigrant, anti-Muslim bigotry that dovetails with Trump’s own beliefs.

Trump’s failure to disavow the group echoed his refusal to condemn the white supremacists who marched with torches in Charlottesville in 2017, chanting, “Jew will not replace us!” at the Unite the Right rally, which was organized by Jason Kessler, a former member of the Proud Boys.

The group’s current chairman, Enrique Tarrio, a Cuban-American from Miami who attended the Charlottesville rally, boosted an excited comment about Trump’s apparent endorsement posted on Tuesday by another member, who describes himself as a “33rd Degree Proud Boy,” as well as a “right-wing death squad general,” an “ANTIFA Butcher,” a “Commie Killer” and a “BLM Skull Stomper.”

A screenshot of a Parler post from a member of the neo-fascist Proud Boys gang.

Tarrio, who spent a year in federal prison for his part in a scheme to rebrand stolen diabetic test strip kits and sell them online, wrote on his own Parler account that he was “extremely PROUD of my Presidents performance tonight,” saying that Trump “did an excellent job and was asked a VERY pointed question. The question was in reference to WHITE SUPREMACY…which we are not.”

Despite Tarrio’s comments, photographs of the rally in Portland on Saturday showed him and other members making the O.K. hand gesture, which has evolved in recent years from a 4chan hoax — intended to trick the media into reporting that it meant “white power” on the internet — into a symbol actually embraced by racists in real life.

PORTLAND, OR - SEPTEMBER 26: Proud Boys flash the OK hand signal, a gesture often associated with far-right groups, during Proud Boy rally on September 26, 2020 in Portland, Oregon. Oregon Governor Kate Brown declared a state of emergency prior to Saturdays rally as fears of political violence between Proud Boys and Black Lives Matter protesters grew.  (Photo by Nathan Howard/Getty Images)

Proud Boys flash the OK hand signal, a gesture often associated with far-right groups, during a rally in Portland on Saturday.

Photo: Nathan Howard/Getty ImagesGetty Images

Even if they don’t consider themselves racist, it is quite clear that the Proud Boys are openly antagonistic to racial justice protesters in Portland and other cities.

As my colleague Ryan Devereaux reported from the rally on Saturday, it was largely dedicated to praising two new martyrs of the far-right: Aaron Jay Danielson, a supporter of the far-right group Patriot Prayer, who was shot and killed by a self-described anti-fascist in Portland last month, and Kyle Rittenhouse, the 17-year-old Trump supporter who was charged with two counts of murder for killing two Black Lives Matter protesters and wounding a third in Kenosha, Wisconsin.

The debate moderator, Chris Wallace, had specifically referred to the way violent right-wing groups had stoked violence in both Kenosha and Portland.

Moments before he failed to condemn the Proud Boys in the debate, Trump had seemed to take credit for the police killing of Michael Reinoehl, the suspected left-wing gunman who had fatally shot Aaron Jay Danielson, a right-wing activist from a group allied to the Proud Boys, following a raucous pro-Trump caravan confronting Black Lives Matter protesters in downtown Portland.

“I sent in the U.S. Marshals to get the killer of a young man — in the middle of the street, they shot him, and for three days Portland wouldn’t do anything,” Trump claimed. “They took care of business,” he said with obvious satisfaction.

In fact, Portland’s district attorney, Mike Schmidt, had charged Reinoehl with murder and obtained a warrant for his arrest hours before he was shot and killed by police officers in Washington state working with the U.S. Marshals Service to track down the fugitive. While the police said Reinoehl had a handgun, one witness told The Oregonian that the officers had made no attempt to arrest the suspect, who did not seem to be armed. Antifascist activists in Portland then accused law enforcement of carrying out an extrajudicial execution of a man who was wanted for killing a member of a pro-police group.

Trump also seemed to be overstating what role, if any, he had played in the effort to detain Reinoehl. In fact, on September 3, the president tweeted a public complaint about the case — demanding that the Portland Police arrest the suspect — a full hour and 40 minutes after he had already been killed by the federal fugitive task force. The president’s tweet was sent 13 minutes after the suspect’s death had been reported by The New York Times.

Trump’s praise of Reinoehl’s shooting in the debate also echoed his own previous bloodthirsty remarks, in which he sounded more like a sectarian warlord than the president of a democracy. “U.S. Marshals killed him,” Trump said of the suspected left-wing gunman in an interview with the debate moderator’s Fox News colleague Jeanine Pirro. “And I’ll tell you something, that’s the way it has to be. There has to be retribution,” he added.

Trump’s rush to declare the killing of the left-wing gunman from Portland perfectly justified contrasted with the staunch defense he has offered of Kyle Rittenhouse, the right-wing gunman who has become a hero to neo-fascists worldwide for bringing a rifle to a Black Lives Matter protest and provoking a confrontation that left two men dead.

At a news conference last month, Trump was asked if he would disavow the provocative behavior of armed supporters like Rittenhouse, who was charged with six crimes based on evidence gathered by the Kenosha police department. Suddenly skeptical of the police, the president said that video of the teen gunman being pursued by protesters before the second and third shootings, which was played without context in heavy rotation on Fox News, suggested to him that the young vigilante had acted in self-defense.

What the president left out of his description of the video that showed Rittenhouse, in his words, “trying to get away from” protesters who were chasing him, who then “very violently attacked him,” is that those three men were trying to disarm him because he had just shot another man in the head, minutes earlier.

“I guess he was in very big trouble — he probably would’ve been killed,” Trump claimed, ignoring the sequence of events laid out in clear detail in the police complaint charging Rittenhouse with murder.

That context was mostly absent from Tucker Carlson’s selective presentation of the facts of what Rittenhouse did, but it was carefully detailed in the indictment based on the work of three Kenosha homicide detectives. It is not hard to imagine which source of information Trump had studied more carefully. So when Trump excused the reckless killing of protesters by Rittenhouse, a young man who had been in the front row at one of the president’s rallies in January, the self-described “law and order” candidate was choosing to disregard the actual work of law enforcement carried out by Kenosha’s police department because it was politically inconvenient for him.

At another point in the debate, Trump claimed that his provocative approach to the protests in Portland was endorsed by the city’s sheriff, “who just came out today and said, ‘I support President Trump.'” While the city of Portland does not, in fact, have a sheriff, the county it is in, Multnomah, does. Before the debate was over, Multnomah County Sheriff Mike Reese had tweeted to debunk the president. “I have never supported Donald Trump and will never support him,” Reese wrote. “Donald Trump has made my job a hell of a lot harder since he started talking about Portland,” he added, “but I never thought he’d try to turn my wife against me!”

The post Neo-Fascist Proud Boys Exult Over Trump Telling Them to “Stand By,” Not Stand Down appeared first on The Intercept.

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109 days ago
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Excess Mortality Data Shows Trump Is Lying About Covid-19 Being More Deadly in Europe


Without once citing a source for the statistic, President Donald Trump has complained at least 20 times since early August about the media refusing to report his claim that the Covid-19 pandemic has been far more deadly in Europe than in the United States.

Reporters were right not to trust the president, because Americans have in fact died at a greater rate than Europeans since March, according to new data provided to The Intercept by Danish researchers who monitor excess mortality in Europe, and a separate analysis of deaths during the pandemic from Oxford University economists published on Tuesday.

Excess mortality is a measure used by epidemiologists to account for the real toll of a pandemic by comparing the total number of deaths from all causes each week to the average number of deaths in a typical, non-pandemic year in that country or region.

Trump’s false claim about the pandemic being worse in Europe has been central to his effort to deflect questions about why the U.S. leads the world in confirmed Covid-19 deaths since August 11, when he first claimed that “Europe has experienced a nearly 40 percent higher excess mortality rate than the United States” during the pandemic. He has made the comparison again and again in the weeks since, but never offered any explanation of how the statistic was calculated, or by whom, or why the percentage by which he claims the rise in deaths in Europe is higher than in the U.S. keeps changing.

The president has said four times that Europe has recorded 40 percent more deaths than the U.S. He’s said the figure was 33 percent twice. He put the difference at 38 percent on one occasion. A week later, he said it was 24 percent twice.

At an ABC News town hall two weeks ago, Trump said the confirmed Covid-19 death toll, showing the U.S. harder hit than any nation, should be ignored because, “There’s a chart that just came out a little while ago: excess mortality rate is compared to Europe, compared to other places, it’s about 25 percent better. In one case, it’s over 60 percent better.” He did not provide the chart.

Four days after that, he said the gap with Europe was 30 percent. Last week, he said it was 30 percent two more times, and then switched again, telling rally-goers in Pennsylvania and Florida that the reporters covering his campaign “don’t want to tell you” that “Europe has had almost a 50 percent greater excess mortality rate than the United States.”

Not only were all of the president’s numbers wrong, but the true figures on deaths from all causes during the pandemic, compiled by researchers in Denmark and England, show that the U.S. has done significantly worse than Europe, not better, at keeping its citizens alive during the pandemic.

From February to September, excess deaths in Europe increased by 12 percent according to an analysis carried out at the request of The Intercept by the European Mortality Monitoring Project, a team of Danish scientists who track mortality in 24 European nations or regions. Lasse Vestergaard, the EuroMOMO project coordinator, and a senior medical officer in the Department of Infectious Disease Epidemiology and Prevention at Denmark’s Statens Serum Institut, said in an email that this figure can be compared to CDC data on excess deaths for the same period which shows that the spike in mortality in the U.S. was about 19 percent.

A New York Times analysis of the CDC’s excess death statistics for a slightly different time period — from March 15 to September 5 — arrived at a similar figure for the U.S. showing 266,900 more deaths than normal, which is an increase of 20 percent.

Data provided by Vestergaard showed that at the height of the pandemic in Europe, from March to June, excess deaths spiked by 25.6 percent. What brought the overall figure down so much was a sharp and sustained drop in deaths across the region from June into September, when mortality was just 2.2 percent above normal.

Although a September 12 Trump campaign statement claiming that “Europe experienced a 24% higher excess mortality rate than the United States” linked to the EuroMOMO website as evidence, Vestergaard told me in a Skype interview that the idea that their data supported this claim was “rubbish.”

A separate study of excess deaths in Europe and the U.S. released on Tuesday reached a similar conclusion. The Oxford University economists Janine Aron and John Muellbauer, who compared the CDC data to data for a larger portion of Europe from the Human Mortality Database, reported that “Europe’s cumulative excess mortality rate from March to July is 28 percent lower than the US rate.”

Aron and Muellbauer found that excess deaths from the start of March to the end of July increased by 12.4 percent in the 28 European nations they tracked, compared to 17.2 percent in the U.S. during that period. Since the region the economists looked at — including most of the European Union plus the United Kingdom, Iceland, Norway, and Switzerland — has nearly 200 million more people in it than the U.S. their measure of the excess mortality rate corrects for population.

The economists, who were spurred to dive into the data by Trump’s patently false claims about excess mortality in the U.S. and Europe, observed last month in a previous study that the comparison is even more damning for the Trump administration when you consider that the pandemic hit Europe first and the continent has an older population than the U.S. living in more densely populated countries.

“U.S. policy-makers have had multiple advantages over European countries, such as Italy and Spain, in responding to the first wave of the Covid-19 pandemic. First, there was more time to react,” Aron and Muellbauer wrote in
August. “Second, Europe is disadvantaged by having an older population than the U.S. and the population density is also far higher in Europe and the large cities in Europe have higher population densities than large cities in the U.S.”

In their August paper, which looked at excess mortality from March to June, Aron and Muellbauer found that it was 20.31 percent higher than normal in the U.S. and 15.94 percent higher in Europe for the same period. That means, despite Trump’s claims, excess mortality for the first part of the pandemic in the U.S. was 22 percent worse, not better, than in Europe.

While Trump has never mentioned where he got the incorrect excess mortality stats he’s been hawking, it seems likely that they came from Dr. Scott Atlas, the Fox News commentator the president added to his coronavirus task force the day before he started making the false comparison to Europe. Atlas has frequently cited the same metric in media interviews and claimed to have done the calculations himself.

In an interview published on the Wall Street Journal opinion page on September 4, Atlas told Tunku Varadarajan, his colleague at the conservative Hoover Institution think tank at Stanford, that the U.S. was “doing much better than Europe.”

“By his own calculations,” Varadarajan reported of Atlas, “the U.S. has had 38% fewer ‘excess mortality deaths’ — fatalities over and above those that would have occurred in a nonpandemic year — for people over 65 than Europe. (The data include most of the European Union plus Norway, Switzerland and the U.K.).”

In a press briefing two hours after that interview was published, Trump — who has never said that he was referring only to the deaths of people over 65 — told reporters that “the nations of Europe have experienced a 38 percent greater excess mortality than the United States.”

Atlas, who is a radiologist, not an infectious disease expert or an epidemiologist, then defended Trump by telling the BBC that Europe had “done 28 percent worse than the United States in excess mortality.” In a subsequent White House briefing, Trump’s press secretary, Kayleigh McEnany, told another BBC reporter, who asked why the U.S. has “4 percent of the global population and 24 percent of the coronavirus deaths,” that Europe “has experienced a 28 percent higher excess mortality rate than the United States.”

“Excess mortality is an indicator that takes into account the percent deaths above what would occur without a pandemic,” McEnany said. “You have to look at this holistically.”

Although Atlas failed to respond to multiple requests from The Intercept to explain what sources he was using, he seemed to suggest in a video interview with the Daily Caller last week that he used the EuroMOMO excess mortality data for Europe. Explaining his calculations, he told the interviewers that “the data is available for a set of 24 countries,” which matches the region tracked by the Danish team that runs the EuroMOMO project.

Atlas did not tell the Daily Caller what figure he was using for Europe, but he said that excess mortality in the U.S. during the pandemic was 19.9 percent higher than normal, which seems to indicate that he has been using CDC data correctly, but somehow distorting the figures for Europe.

The fact that Atlas appears to have been feeding Trump misleading or incorrect statistics on excess mortality echoes criticism of his role from the federal government’s most senior immunologist, Dr. Anthony Fauci, who told the AIDS activist Peter Staley on Friday that, “he’s a smart guy, no doubt about it, but he tends to cherry-pick data.”

The same day, an NBC journalist overheard the CDC director, Dr. Robert Redfield, criticizing Atlas in a phone call to a colleague. “Everything he says is false,” Redfield told his colleague.

Asked by CNN on Monday if he was worried about what Atlas was telling the president, Fauci said, “I’m concerned that sometimes things are said that are really taken either out of context or are actually incorrect.”

The post Excess Mortality Data Shows Trump Is Lying About Covid-19 Being More Deadly in Europe appeared first on The Intercept.

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109 days ago
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Authors Of CDA 230 Do Some Serious 230 Mythbusting In Response To Comments Submitted To The FCC

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While there were thousands of comments filed to the FCC in response to the NTIA's insanely bad "petition" to have the FCC reinterpret Section 230 in response to an unconstitutional executive order from a President who was upset that Twitter fact checked some of his nonsense tweets, perhaps the comment that matters most is the one submitted last week by the two authors of Section 230, Senator Ron Wyden and former Rep. Chris Cox. Cox and Wyden wrote what became Section 230 back in the 90s, and have spent decades fighting misinformation about it -- and fighting to keep 230 in place.

In the comment they submitted to the FCC, they respond to all the idiotic nonsense that everyone has been submitting. Again, these are the guys who wrote the actual law. They know what it was intended to do, and agree with how it's been used to date. So they go on a systematic debunking journey through the nonsense. First, they respond to comments that say that the FCC can interpret 230. Nope.

Several commenters have repeated the claim in the Petition that “[n]either section 230’s text, nor any speck of legislative history, suggests any congressional intent to preclude the Commission’s implementation.” In fact, however, as the authors of the legislation and the floor managers of the debate on the bill in the House of Representatives, we can assure you the very opposite is true. We and our colleagues in Congress on both sides of the aisle were emphatic that we were not creating new regulatory authority for the FCC or any other independent agency or executive branch department when we enacted Section 230. Not only is this clear from the legislative history, but it is written on the face of the statute. Unlike other provisions in Title II of the Communications Act, Section 230 does not invite agency rulemaking. Indeed, in a provision that judges interpreting the law have noted is “unusual,” Section 230(b) explicitly provides:

It is the policy of the United States … to preserve the vibrant and competitive free market that presently exists for the Internet and other interactive computer services, unfettered by Federal or State regulation.

When this legislation came to the floor of the House of Representatives for debate on August 4, 1995, the two of us, together with members on both sides of the aisle, explained that our purpose was to ensure that the FCC would not have regulatory authority over content on the internet. We and our colleagues, Democrats and Republicans alike, decried the unwelcome proregulatory alternative of giving the FCC responsibility for regulating content on the internet, which at the time was being advanced in separate legislation by Senator James Exon...

The Cox-Wyden bill under consideration was intended as a rebuke to that entire concept.

Then, to prove they're not engaging in revisionist history, they cite the speeches they themselves gave about how the whole point of their bill was to keep the FCC from regulating the internet. From Wyden's floor speech at the time:

[T]he reason that this approach rather than the Senate approach is important is … the speed at which these technologies are advancing [which will] give parents the tools they need, while the Federal Communications Commission is out there cranking out rules about ·proposed rulemaking programs. Their approach is going to set back the effort to help our families.

Cox's floor speech was even more direct with the question of whether or not their approach was designed to give the FCC power:

Some have suggested, Mr. Chairman, that we take the Federal Communications Commission and turn it into the ‘Federal Computer Commission’ — that we hire even more bureaucrats and more regulators who will attempt, either civilly or criminally, to punish people by catching them in the act of putting something into cyberspace. Frankly, there is just too much going on on the Internet for that to be effective....

[This bill] will establish as the policy of the United States that we do not wish to have content regulation by the Federal Government of what is on the Internet —that we do not wish to have a ‘Federal Computer Commission’ with an army of bureaucrats regulating the Internet....

The message today should be, from this Congress: we embrace this new technology, we welcome the opportunity for education and political discourse that it offers for all of us. We want to help it along this time by saying Government is going to get out of the way and let parents and individuals control it rather than Government doing that job for us....

If we regulate the Internet at the FCC, that will freeze or at least slow down technology. It will threaten the future of the Internet. That is why it is so important that we not have a ‘Federal Computer Commission’ do that.

Next, the comment responds to the claims that 230 is "outdated." Nope, claim its authors:

Several commenters, including AT&T, assert that Section 230 was conceived as a way to protect an infant industry, and that it was written with the antiquated internet of the 1990s in mind – not the robust, ubiquitous internet we know today. As authors of the statute, we particularly wish to put this urban legend to rest.

Section 230, originally named the Internet Freedom and Family Empowerment Act, H.R. 1978, was designed to address the obviously growing problem of individual web portals being overwhelmed with user-created content. This is not a problem the internet will ever grow out of; as internet usage and content creation continue to grow, the problem grows ever bigger. Far from wishing to offer protection to an infant industry, our legislative aim was to recognize the sheer implausibility of requiring each website to monitor all of the user-created content that crossed its portal each day.

Critics of Section 230 point out the significant differences between the internet of 1996 and today. Those differences, however, are not unanticipated. When we wrote the law, we believed the internet of the future was going to be a very vibrant and extraordinary opportunity for people to become educated about innumerable subjects, from health care to technological innovation to their own fields of employment. So we began with these two propositions: let’s make sure that every internet user has the opportunity to exercise their First Amendment rights; and let’s deal with the slime and horrible material on the internet by giving both websites and their users the tools and the legal protection necessary to take it down.

The march of technology and the profusion of e-commerce business models over the last two decades represent precisely the kind of progress that Congress in 1996 hoped would follow from Section 230’s protections for speech on the internet and for the websites that host it. The increase in user-created content in the years since then is both a desired result of the certainty the law provides, and further reason that the law is needed more than ever in today’s environment.

Next up: the all too frequent claim that 230 creates a special rule for the internet that is different than for brick and mortar stores, and therefore there's a "double standard." Again, nope.

Several commenters have asserted that Section 230 sets up a “double standard” by treating online businesses differently from “brick-and-mortar” businesses. This represents a fundamental misunderstanding of both the purpose of the law and how it operates in practice.

Section 230 serves to punish the guilty and protect the innocent. Individuals and firms are made fully responsible for their own conduct. Anyone who creates digital content and uploads it to a website is legally liable for what they have done. A website that hosts the content will likewise be liable, if it contributes to the creation or development of that content, in whole or in part. Otherwise, the website will be protected from liability for third-party content.

Section 230 was written to adapt intermediary liability rules long recognized in the analog world for the digital world, applying the wisdom accumulated over decades in legislatures and the courts to the realities of this new technological realm. As authors of the law, we understood what was evident in 1996 and is even more in evidence today: it would be unreasonable for the law to impose on websites a legal duty to monitor all user-created content.

When Section 230 was written, just as now, each of the commercial applications flourishing online had an analog in the offline world, where each had its own attendant legal responsibilities. Newspapers could be liable for defamation. Banks and brokers could be held responsible for failing to know their customers. Advertisers were responsible under the Federal Trade Commission Act and state consumer laws for ensuring their content was not deceptive and unfair. Merchandisers could be held liable for negligence and breach of warranty, and in some cases even subject to strict liability for defective products. In writing Section 230, we—and ultimately the entire Congress—decided that these legal rules should continue to apply on the internet just as in the offline world. Every business, whether operating through its online facility or through a brick-and-mortar facility, would continue to be responsible for all of its legal obligations.

What Section 230 added to the general body of law was the principle that individuals or an entity operating a website should not, in addition to their own legal responsibilities, be required to monitor all of the content created by third parties and thereby become derivatively liable for the illegal acts of others. Congress recognized that to require otherwise would jeopardize the quintessential function of the internet: permitting millions of people around the world to communicate simultaneously and instantaneously, a unique capability that has made the internet “the shining star of the Information Age.” Congress wished to “embrace” and “welcome” this, not only for its commercial potential but also for “the opportunity for education and political discourse that it offers for all of us.” The result is that websites are protected from liability for user-created content, but only to a point: if they are responsible, even in part, for the creation or development of that content, they lose that protection.

The fact that Section 230 established the legal framework for assessing liability in circumstances unique to the internet does not mean that either this framework or the preexisting legal rules do not apply equally to all online and offline businesses. Every business continues to bear the same legal responsibilities when operating in the offline world, and every business is bound by the same statutorily-defined responsibilities set out in Section 230 when operating in the e-commerce realm.

Then there's the question about whether or not the FCC can mandate disclosure and reporting requirements. As Cox and Wyden note, this argument -- pushed strongly by AT&T and the NTIA "borders on the absurd."

The Petition asks the FCC to interpret Section 230 as if it contained explicit requirements mandating terms of service, content moderation policies, due process notice and hearings in which content creators could dispute moderation decisions, and public disclosures concerning these and other matters. The Petition further asks that the FCC impose these specific requirements by rule. Multiple commenters, including AT&T, have endorsed this aspect of the NTIA proposal.

The Petition clearly states NTIA’s understanding that Congress, with “strong bi-partisan support,” intended Section 230 to be “a non-regulatory approach.” In this they are correct. As outlined in Section II above, the legislative history clearly demonstrates that we and our colleagues in Congress intended to keep the FCC and other regulators out of this area. This is reflected in the language of Section 230 itself. Both of us, as the authors of the legislation, made ourselves abundantly clear on this point when the law was being debated.

This fact—and NTIA’s admission of it—makes it all the more illogical for their Petition to ask the Commission to interpret Section 230 as statutory authorization for the FCC to regulate the very subjects that Section 230 itself covers, and which Congress wanted the Commission to stay out of. It surpasses illogic, and borders on the absurd, for the Petition to ask the FCC to use authority that Section 230 clearly does not grant it, in order to divine from the text of the statute explicit duties and burdens on websites that Section 230 itself clearly does not impose.

As Cox and Wyden note, any such interpretation would clearly require new legislation and could not be created, whole cloth, from the mind of an angry President and clueless NTIA staffers with grudges about Section 230.

All of this would require new federal legislation. None of it appears in Section 230, either in the text of the law that we can all read (and that the two of us wrote), or even in the invisible ink which NTIA must believe only it can read.

I get the feeling that Cox and Wyden do not think highly of the NTIA petition.

As for those who commented suggesting that the FCC could interpret Section 230 to include a "negligence" standard, again, this is not how any of this works:

Several commenters, including Digital Frontiers Advocacy, have urged grafting onto Section 230 a requirement, derived from negligence law, upon which existing protections for content moderation would be conditioned. These requirements would add to Section 230 a “duty of care” or a “reasonableness” standard that cannot be found in the statute. As one example, the Petition (which is generically endorsed in its entirety by many individual commenters) would have the FCC require that content moderation decisions be “objectively reasonable,” as compared to the clear language of Section 230, which provides that the decision is to be that of “the provider or user.”

As the authors of this law, and leading participants in the legislative process that led to its enactment in 1996, we can assure the Commission that the reason you do not see any such requirement on the face of the statute is that we did not intend to put one there.

The proposed introduction of subjective negligence concepts would effectively make every complaint concerning a website’s content moderation into a question of fact. Since such factual disputes can only be resolved after evidentiary discovery (depositions of witnesses, written interrogatories, subpoenas of documents, and so forth), no longer could a website prove itself eligible for dismissal of a case at an early stage.

We intended to spare websites the death from a thousand paper cuts that would be the result if every user, merely by filing a complaint about a content moderation decision, could set in motion a multi-year lawsuit. We therefore wrote Section 230 with an objective standard: was the allegedly illegal material created or developed—in whole or in part—by the website itself? If the complaint adequately alleges this, then a lawsuit seeking to hold the website liable as a publisher of the material can proceed; otherwise it cannot.

And if you think Cox and Wyden are done exploring just how absurdly stupid this process has been, you haven't prepared yourself for the next section, in which they respond to the many ridiculous comments suggesting 230 enables the FCC to enforce "neutrality" on internet websites:

The Claremont Institute and scores of individual commenters have complained that particular websites are not politically neutral, and they demand that Section 230’s protection from liability for content created by others be conditioned on proof that a website is in fact politically neutral in the content that it hosts, and in its moderation decisions.

There are three points that must be made in reply. The first is that Section 230 does not require political neutrality. Claiming to “interpret” Section 230 to require political neutrality, or to condition its Good Samaritan protections on political neutrality, would erase the law we wrote and substitute a completely different one, with opposite effect. The second is that any governmental attempt to enforce political neutrality on websites would be hopelessly subjective, complicated, burdensome, and unworkable. The third is that any such legislation or regulation intended to override a website’s moderation decisions would amount to compelling speech, in violation of the First Amendment....

They respond to every idiot who misinterprets the line in the Findings part of Section 230 about "diversity of political discourse" by saying "we meant lots of different sites, not that every site has to host all your nonsense."

Section 230 itself states the congressional purpose of ensuring that the internet remains “a global forum for a true diversity of political discourse.” In our view as the law’s authors, this requires that government allow a thousand flowers to bloom—not that a single website has to represent every conceivable point of view. The reason that Section 230 does not require political neutrality, and was never intended to do so, is that it would enforce homogeneity: every website would have the same “neutral” point of view. This is the opposite of true diversity.

To use an obvious example, neither the Democratic National Committee nor the Republican National Committee websites would pass a political neutrality test. Government compelled speech is not the way to ensure diverse viewpoints. Permitting websites to choose their own viewpoints is.

And then there's that comment that was popular among individual filers (and lots of idiots on Twitter) that because Section 230 allows websites to take down lawful speech, that's somehow a violation of the 1st Amendment. We've discussed many, many, many times how ridiculous that is, but why don't we hear it from Wyden and Cox:

Many individual commenters complained that their political viewpoints have been “censored” by websites ostensibly implementing their community guidelines, but actually suppressing speech. Several of these commenters have urged the FCC to require that all speech protected by the First Amendment be allowed on any site of sufficient size that it might be deemed an equivalent to the “public square.” In the context of this proceeding, that would mean Section 230 would somehow have to be “interpreted” to require this.

Comments within this genre share a fundamental misunderstanding of Section 230. The matter is readily clarified by reference to the plain language of the statute. The law provides that a website can moderate content “whether or not such material is constitutionally protected.”... Congress would have to repeal this language, and replace it with an explicit speech mandate, in order for the FCC to do what the commenters are urging.

Government-compelled speech, however, would be a source of further problems. Because the First Amendment not only protects expression but non-expression, any attempt to devise an FCC regulation that forces a website to publish content it otherwise would moderate would almost certainly be unconstitutional. The government may not force websites to publish material that they do not approve. As Chief Justice Roberts unequivocally put it in Rumsfeld v. Forum for Academic and Institutional Rights (2006), “freedom of speech prohibits the government from telling people what they must say.”...

And then they point out that many commenters don't seem to understand the 1st Amendment:

The answer to the commenters’ complaints of “censorship” must be twofold. First, many of the comments conflate their frustrations about Section 230 with the First Amendment. As noted, it is the First Amendment, not Section 230, that gives websites the right to choose which viewpoints, if any, to advance. Furthermore, First Amendment speech protections dictate that the government, with a few notable exceptions, may not dictate what speech is acceptable. The First Amendment places no such restrictions on private individuals or companies. Second, the purpose and effect of Section 230 is to make the internet safe for innovation and individual free speech. Without Section 230, complaints about “censorship” by the likes of Google, Facebook, and Twitter would not disappear. Instead, we would be facing a thousandfold more complaints that neither the largest online platforms nor the smallest websites are any longer willing to host material from individual content creators.

And changing Section 230 in the manner these commenters seek wouldn't actually help them:

Eroding the law through regulatory revision would seriously jeopardize free speech for everyone. It would be particularly injurious to marginalized viewpoints that aren’t within “the mainstream.” It would present near-insuperable barriers for new entrants attempting to compete with entrenched tech giants in the social media space. Not least of all, it would set a terrible example for the rest of the world if the United States, which created the internet and so much of the vast cyber ecosystem that has enabled it to flourish globally as an informational, cultural, scientific, educational, and economic resource, were to undermine the ability that hundreds of millions of individuals have each day to contribute their content to that result.

In the absence of Section 230, the First Amendment rights of Americans, and the internet as we know it, would shrivel. Far from authorizing censorship, the law provides the legal certainty and protection from open-ended liability that permits websites large and small to host the free expression of individuals, making it available to a worldwide audience. Section 230 is a bulwark of free speech and civil discourse that is more important now than ever, especially in the current political climate that is increasingly hostile to both.

In short, so many of these commenters are confused about the law, the history, the technology, how free speech works, how the internet works, and more. That much of this is also true of the NTIA petition itself is a shame.

The Cox and Wyden comment concludes by underlining the fact that they wrote 230 with the explicit intent of keeping the FCC away from regulating internet websites.

On one point we can speak ex cathedra, as it were: our intent in writing this law was to keep the FCC out of the business of regulating websites, content moderation policies, and the content of speech on the internet. The Petition asks the Commission to reverse more than two decades of its own policy by becoming, at this late stage in the life of Section 230, its regulatory interpreter. In so doing, the FCC would assume responsibility for regulating websites, content moderation policies, and the content of speech on the internet—precisely the result we intended Section 230 to prevent. To reach this perverse result, the FCC would “clarify” the words of Section 230 in ways that do violence to the plain meaning of the statutory text.

One would hope that such a detailed response from the authors of the law would put this whole nonsense to rest. But it won't.

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DOJ Says It Could Take Bribes in Court and the Judge Could Do Nothing

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At least in one situation: if it has moved to dismiss a prosecution under Federal Rule 48(a). If that is the case, the DOJ argued on Tuesday, the U.S. Attorney General could literally accept a bag of cash from the defendant in open court, and the judge would still have to grant the motion to dismiss.

It said this in a hearing about its decision to dismiss the charges against former National Security Advisor Michael Flynn. As you may recall, Flynn was one of the Trump officials who some claimed—and I know this will seem hard to believe—were involved in Russia-related shenanigans before and after the election and then lied to the FBI about it. In Flynn’s case, this was based on nothing more than evidence, and it looked like he might actually get jail time on these charges just because he pleaded guilty to them twice. Because of this injustice, and not because the President wanted the charges dropped, U.S. Attorney General Bill Barr decided to drop the charges.

Concerned that the decision might in fact have something to do with the President’s wishes, Judge Emmet Sullivan appointed a retired judge to act as amicus curiae and review things. This is unusual, but then so is a sudden decision by the executive branch to drop charges against a guy who pleaded guilty to lying about things that might involve the head of the executive branch. With the prosecution and defendant in agreement, there was nobody to take a contrary position, which is normally how claims are tested in an adversary system. Hence the appointment.

In June, the amicus filed a brief arguing that there was “clear evidence of a gross abuse of prosecutorial power” and that Flynn had committed perjury. In response, the government argued that it didn’t make any difference: it was gonna drop the charges and there was nothing the judge could do about it. Flynn filed a petition asking the D.C. Circuit to order the judge to grant its motion, and a divided panel agreed. Sullivan asked the full D.C. Circuit to review this, and that hearing took place on Tuesday.

The legal issue is actually pretty straightforward. Rule 48(a) says: “The government may, with leave of court, dismiss an indictment, information, or complaint.” See the issue? With leave of court. Hm. Well, what could that possibly mean? To the government, it means this: The court may ask the government if it really wants to dismiss, and then it must grant leave to do that.

I am not making that up.

If there are improprieties, the DOJ argues, those can and should be addressed in other ways, but a judge can do nothing because the decision whether to prosecute is always up to the executive branch, no matter what. For the judge to intervene would violate separation of powers.

Okay, with that setup, here is a rough transcript of the relevant argument sections, adapted from C-SPAN’s even rougher transcript. In this first section, Judge Robert Wilkins asks Flynn’s attorney if a judge could consider allegations that a dismissal (not this one, of course) was the result of a bribe. And not just any bribe, but one witnessed by a bunch of nuns and bishops with smartphones:

Judge Wilkins: Good morning, Ms. Powell. I have a hypothetical. Suppose in the future, in a different administration, you had a 48(a) motion that was filed … and the prosecution said it is because of exculpatory evidence that we are moving to dismiss, and a Catholic University law professor asks to be appointed amicus because a group of nuns and bishops happened to witness the prosecutor taking a briefcase full of cash from the defendant in the case, and they made a videotape using their smartphones of the transaction and presented that to him along with sworn declarations, and so he wants to file an amicus brief and attach that evidence. Is that improper?

Powell: Well, that would certainly be improper behavior by the prosecutor and worthy of prosecution itself ….

Judge Wilkins: Is appointment of that professor as amicus improper?

Powell: I believe it would be, if the government had already filed a 48(a) motion and decided through appropriate channels to drop the case…. [T]he considerations that go into that belong to the Department of Justice, not the … judiciary, although [DOJ] could certainly make a criminal referral and should.

Judge Wilkins: So [what if] the district judge says “I am not going to appoint an amicus because the defendant has objected, I am going to hold a hearing and ask those witnesses to come to the hearing and bring their video footage of this alleged bribe.” The district judge … cannot hold that hearing?

Powell: He cannot go behind the prosecutor’s decisions to dismiss a case, and he certainly can’t on the facts of this case. I mean, one of the reasons—

Judge Wilkins: I’m asking you about my hypothetical. Would it be improper for the district judge to hold a hearing under the facts of my hypothetical?

Powell: [U]nder the facts of your hypothetical, what the district judge would have to do is refer the matter to [DOJ] for prosecution.

So, if a group of nuns and bishops offer the judge a video of a prosecutor taking a bribe, all the judge can do is ask DOJ to prosecute its prosecutor.

Just to confirm what he was hearing, Judge Wilkins brought this up again later:

Judge Wilkins: Just following up on my earlier hypothetical just so that we’re clear. If, in that situation, the district judge said “I want to have a hearing …, and I want to have the nuns and priests testify and view their videotape showing this alleged handing over of cash from the defendant to the prosecutor,” you would say they have no authority to proceed in that fashion?

Powell: I would say he does not have that authority under rule 48(a). He would need to refer it for prosecution by the Department of Justice.

Just to double-confirm what he was hearing, Judge Wilkins brought it up again later with the attorney representing DOJ, acting Solicitor General Jeffrey Wall:

Judge Wilkins: So if in my hypothetical, there is a videotape of the U.S. Attorney taking a suitcase full of cash and the judge wants to have a hearing on that because that same U.S. Attorney signed the motion, you would say that that hearing is appropriate or not appropriate under rule 48(a)?

Wall: I would say the hearing to make sure that the executive branch actually wants to dismiss is not a problem. But if the U.S. Attorney shows up and says, “I want to dismiss, we’ll deal separately with whether the AUSA [Assistant U.S. Attorney] committed bribery,” no, [not appropriate].

Again, the argument is that all a judge can do is ask the executive what it wants (I guess in case the executive made a mistake or something), and then do that. But this was a slightly different hypothetical than before, Wilkins noted: In this one, it’s not just some DOJ attorney who took the bribe, it’s the one who signed the motion to dismiss:

Judge Wilkins: Excuse me, sir. My hypothetical is that the U.S. Attorney is the one in the videotape making a bribe and the judge makes that factual finding—that the person standing in front of him, the U.S. Attorney, is the person in the videotape.

Wall: [long pause] Again, that’s the toughest case at the margin, I will give you [that], but my answer’s still the same. The court can ask the AG or the Deputy Attorney General if they really want to dismiss. If the answer from the executive branch is yes, then whether some individual in the executive branch has committed a crime is not the domain of Rule 48(a). The executive branch could prosecute … [b]ut it would not be a basis for denying the Rule 48(a) motion. It would be a separate criminal proceeding …. I think the court would be required to grant the motion and dismiss the prosecution.

Okay, then, what if the prosecutor who took the bribe is not just a U.S. Attorney, but the Attorney General?

Judge Wilkins: Suppose there is a hypothetical situation 10 years from now with an administration where the Attorney General is in the videotape by the nuns [showing him] taking the bribe. No authority under 48(a) to dismiss the case?

Wall: No, my answer is still the same. The political and public remedies for that are so obvious that it wouldn’t need to be in the domain of Rule 48(a) and I don’t think anyone has contemplated that Rule 48(a) is meant to aim at that sort of political corruption.

Judge Wilkins: So the case would still get dismissed as to that defendant who bribed the Attorney General? The Attorney General might be prosecuted or impeached, but the defendant would still get off scot-free as a result of committing a bribe? Is that the way 48(a) works?

Wall: Maybe if I can come at it a different way, Judge Wilkins. In the vast majority of cases where what we’re talking about is not commencing [i.e. bringing] charges, I think everyone, even the district court, agreed that there’s no role for courts to play under Rule 48(a), even if they think the executive has failed to prosecute for some improper reason, like bribery, like favoritism, like corruption. Everyone agrees that the executive can’t be made to prosecute the case, no matter how impermissible its motive…. All we’re saying is that … the same rule applies to Rule 48(a) if we have brought the charge…. Dismissing it is the same as bringing it as a constitutional matter. It [bribery] is bad conduct, to be sure. It should be punished, to be sure. There are other remedies for it. But they do not [involve] Rule 48(a).

Judge Wilkins: A 48(a) motion can be made after sentencing. Are you saying if the Attorney General is bribed by the defendant after the sentence because the defendant did not like the sentence he got, the court would still have to vacate the conviction … even with a videotape evidence of a bribe to the Attorney General?

Wall: There is no substantial role for courts to perform that sort of judicial screening and oversight. The executive branch’s conduct of prosecutions is governed … by the legislative branch and the public through legislative oversight, impeachment, and the rest. It is not governed by the courts under Rule 48(a), that is right.

Other judges asked similar questions, including Judge Patricia Millett. Here, she asks Wall about DOJ’s position that the district judge must be prevented by an immediate writ of mandamus from even investigating such allegations, because even doing that would be hurtful to the executive branch. Why? she asked. You could even just refuse to cooperate, she suggested, and then appeal in the usual way. What’s your hurry?

Judge Millett: I am talking about the process for the government to avoid injury…. If you … feel like you don’t have to answer, you can refuse to answer [and then appeal].

Wall: I think the process itself is harmful and … not permissible because you are extending the criminal process, you are asking the executive to expose its deliberative process, you are threatening to reveal sensitive information—

Judge Millett: Asking. Wait, wait, wait—No one is threatening to reveal. You have complete control over that. We are asking the government to reveal something that the government considers to be privileged—and maybe the district court is wrong as rain. But the district court thinks it is an open question. That’s mandamusable every time a question like that is asked? In every district court across this country? That’s mandamusable?

I want to make clear that it pains me even to type the word “mandamusable,” but that’s the word she used. Wall answers “no,” but as you can see, “no” means “yes”:

Wall: No, Judge Millett. When a district court in this circuit begins to probe in that way with respect to … a rule 48 motion, it is mandamusable … and the reason, and I may not persuade you, but the reason is that the harm from usurping a constitutionally invested power in another branch is–

Judge Millett: Your position is …. Just asking the question is a constitutional violation, just so we understand?

Wall: Yes.

Saying this surprised her, Judge Millett offered one more version of the hypothetical. This time, the defendant hands the money to the prosecutor in court, right in front of the judge, and the prosecutor then stands up and moves to dismiss, claiming—despite previous assurances and what the judge has just seen—that DOJ is dismissing because it has learned it didn’t turn over exculpatory evidence, as the Brady case requires:

Judge Millett: Just to be clear, … this is a hypothetical case. You have a criminal case and the district court has a standard order on Brady disclosures. The district court before trial goes, “I want to make sure you have done everything, you have given them everything you have, you have asked everyone who would know or have information,” and the government says “yes, yes, yes. There is nothing else…. We have given the defendant everything…. [E]verything has been disclosed. Absolutely, your honor.” So the first day of trial, in the presence of the court, the defendant’s attorney hands the prosecutor a briefcase overflowing with $20 bills. It is handed to the prosecutor who is the U.S. Attorney and the Attorney General is standing right there next to her. And the government, upon receipt of that briefcase, submits … a Rule 48 motion to dismiss, [saying] there was a Brady violation in this case. In the presence of the district court, money has exchanged hands. Previous presentations about Brady are now being undermined. And your position … is that the district court has no choice but to grant that motion to dismiss. And that would be true even if it is unclear whether the district court could prosecute [anyone for] criminal contempt … after a case is dismissed.

Wall: Yes.

Emphasis added.

This idea that the executive branch has vast if not absolute authority, and that it must in order to do its job, has been percolating for a while now. One of its biggest proponents is John Yoo, who once wrote a memo saying the executive branch could torture people and yet seems surprised that the current executive is completely out of control. The Democrats were more squeamish about torture, but didn’t do much to rein in the executive branch when they controlled it, as evidenced by (for example) that time President Obama dropped a bomb on a U.S. citizen. I guess in view of stuff like that, it shouldn’t be too shocking that the executive branch is saying it could accept bribes in full view of the judiciary and the only remedy is to ask it to police itself. And yet it still kind of is.

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