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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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44 days ago
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We Need to Talk About Joe

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Bernie Sanders’s insurgent campaign against the Democratic establishment and massive corporate power is in the fight of its life. This week on Intercepted: With Michigan and other states voting in primaries today, the justice movements backing the Sanders campaign are making the case that nominating Joe Biden to take on Donald Trump is a grave risk. Poet Aja Monet and organizer Astra Taylor discuss the mini-manifesto from a multi-generational, multi-racial coalition of feminists: “Rising for a Global Feminist Future with the Movement to Elect Bernie Sanders.” As Biden’s campaign seeks to keep him away from open microphones and limit his public appearances, serious questions are being asked about Biden’s mental health and his decades of right-wing positions and policies. Nathan Robinson, editor-in-chief of Current Affairs, discusses Biden’s record on criminal justice, the climate crisis, women’s reproductive rights, war, and trade. Robinson accurately predicted Trump would defeat Hillary Clinton and he argues it will all happen again if Biden is the candidate in November. His latest article is titled, “Democrats, You Really Do Not Want To Nominate Joe Biden.”

Transcript coming soon.

The post We Need to Talk About Joe appeared first on The Intercept.

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Our Revolution, Accused of Dark-Money Spending for Sanders, Took Only Six Donations Over $5,000 in 2019, None Larger than $25,000

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Rival presidential candidates have been attacking Sen. Bernie Sanders over the advocacy groups boosting his campaign, accusing the Democratic frontrunner of taking untraceable dark money and contributions from super PACs and from the nonprofit he founded in 2016, Our Revolution.

The problem with the charge: It’s not dark money, and it’s not big, either.

The issue arose most recently during the Nevada debate, when Sen. Elizabeth Warren said that everyone onstage besides her and Sen. Amy Klobuchar had taken money from super PACs, which can take in and spend money for candidates with fewer restrictions than a campaign. Her statement cast shade on Sanders, and seemed to raise questions whether the political spending is at odds with the Vermont senator’s rejection of money in politics. Warren didn’t mention names, but Pete Buttigieg tweeted about the “nine dark money groups” that make up a coalition called People Power for Bernie and include Our Revolution, the youth-led climate group Sunrise Movement, and a super PAC affiliated with the National Nurses union. Our Revolution in particular has received scrutiny because it is a 501(c)(4), which allows it to accept large donations without disclosing its donors, unlike super PACs.

In response to an Intercept inquiry, Our Revolution provided information on its donors, which is not yet public, saying that in 2019, it only received a total of six donations over $5,000. Last year, the average individual contribution to Our Revolution was $17.73, with 99.99 percent of its donations coming in under $5,000, according to the group.

The six big contributions totaled $78,289.53 last year, or roughly 4 percent of its revenue. The biggest contribution was around $25,000. Our Revolution, from all sources, took in $1.87 million in 2019, and the bulk of that was spent on state and local races or other organizing campaigns separate from the Sanders presidential run.

For comparison, VoteVets alone, a super PAC that supports liberal veterans for public office and is backing Buttigieg, has spent $2.1 million airing ads for the former mayor so far. Our Revolution’s board has to approve any donation over $5,000.

Our Revolution posts the names of all donors who give more than $250, though the amount is not tied to an identity, meaning it’s impossible to know which on the list are the six who gave more than $5,000. It’s a case of too much transparency, without the necessary detail, leading to opacity. When asked to identify the six donors, Paco Fabian, a spokesperson for Our Revolution, told The Intercept that a few donors, not wanting to be solicited by other groups, didn’t want the size of their contributions to be listed. He added that none are billionaires or associated with large corporations.

On January 22, the watchdog group Common Cause filed a complaint with the Federal Election Commission alleging that Our Revolution broke campaign finance laws by soliciting donations “explicitly to elect Sanders president.” Fabian said the contention that the group is outside of FEC rules is simply false. Sanders has since distanced himself from the group, and supporters note that Our Revolution’s efforts in the Democratic primary are miniscule compared to the millions of dollars outside groups, bankrolled by wealthy donors, pump into the race. Nina Turner, former Ohio state senator and Sanders campaign co-chair, left her position as president of Our Revolution to serve as a national surrogate for Sanders in 2020.

“I would think that we should end super PACs right now. So I would tell my opponents who have a super PAC, why don’t you end it? And certainly that’s applicable to the groups that are supporting me,” Sanders said at a New Hampshire forum in January.

Only some of the group’s activities benefit Sanders’s presidential bid, a spokesperson told The Intercept, as most of the nonprofit’s work is dedicated to helping elect progressives running for local, state, and federal office — from city council and county commissioner to congressional seats. “Bernie and beyond,” as Fabian described their efforts up-and-down the ballot.

“Pretending that a grassroots group with a diverse, working-class membership is in any way the same thing as a SuperPAC spending millions of dollars on ads is frankly dangerous,” Fabian said. “But our adversaries should be concerned. People coming together, pooling their resources and organizing to improve their communities are a threat to their political power.”

The details provided by Our Revolution set it apart from the super PACs blanketing the airwaves for contenders like former Vice President Joe Biden and Buttigieg. Buttigieg, who has more billionaire donors to his presidential campaign than any other Democrat, in particular has been hitting Sanders on this, claiming he’s backed by several dark-money groups, and even comparing the Vermont senator to oligarch Mike Bloomberg.

Warren, a longtime critic of super PACs, recently reversed her position on the issue, saying the fact that only the “two women” in the race didn’t have super PAC support was “just not right.” A super PAC backing Warren, called Persist PAC, filed with the FEC last week. Kitchen Table Conversations, a super PAC supporting Klobuchar, also filed its paperwork last Friday.

The post Our Revolution, Accused of Dark-Money Spending for Sanders, Took Only Six Donations Over $5,000 in 2019, None Larger than $25,000 appeared first on The Intercept.

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CAUTION: CONTENTS HOT, read the coffee cup. CAUTION: CONTENTS HOT, sighed my brain as i stared at the superspy ordering a black coffee with a shot of espresso

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February 21st, 2020: Thanks for reading my comic today, everyone!! Thanks for reading it EVERY day, actually. And if you're not reading it every day NOW'S YOUR CHANCE I GUESS??

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[rss title] CAUTION: CONTENTS HOT, read the coffee cup. CAUTION: CONTENTS HOT, sighed my brain as i stared at the superspy ordering a black coffee with a shot of espresso

[img title] angola sighed, which just made his dimples look cuter. as i looked at him i thought, oh dang, well i can't just NOT kiss this deadly representation of extrajudicial state authority

[mailto subject] Angola Maldives, who despite my best intentions was becoming this really well developed character, looked over his tragic backstory with interest

Pete Buttigieg Says Marijuana Arrests Signify “Systemic Racism.” His South Bend Police Fit the Bill.

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Pete Buttigieg wasn’t much of a pot smoker in college. But coming home from a party one evening, he bumped into a friend of a friend smoking a joint. Buttigieg later recalled that he acted out of curiosity. “Oh, is that — ?” the young Buttigieg said. “And she handed it to me.”

At precisely that moment, a police car pulled up. He quickly tossed the joint over his shoulder. Luckily for Buttigieg, it was a campus cop. Unluckily, he quickly found the roach on the sidewalk, berated Buttigieg, had him place his hands on the trunk, and searched him. Finding nothing more, he sped off, leaving Buttigieg with a story he still tells today of the first time he realized what it means to be privileged. “If I were not white, the odds of that having been something that would have derailed my life are exponentially higher,” he said at an event this spring. “It’s one of many reasons why I think we have to end the war on drugs and move towards the legalization of marijuana.”

It’s a theme Buttigieg returns to often. In July, at an event in Iowa, he shot down a racist question from an audience member by responding, “The fact that a black person is four times as likely as a white person to be incarcerated for the exact same crime is evidence of systemic racism.” When pressed by fact-checkers on his claim, he said that he was referring to the racial disparity in marijuana arrests nationwide, citing an American Civil Liberties Union study that found black people were 3.7 times more likely to be arrested for pot than whites.


The disparity in South Bend, Indiana, however, has been significantly worse than that under Buttigieg’s leadership.

Since Buttigieg became mayor in January 2012, taking charge of the South Bend Police Department, the city’s black residents have been far more likely to be arrested for marijuana offenses than its white residents. That disparity in South Bend under Buttigieg, in fact, is worse than in the rest of the country, or even the rest of Indiana.

A black South Bend resident, under the Buttigieg administration, was 4.3 times more likely to be arrested for possessing marijuana between 2012 and 2018 than a white resident, according to data collected by the federal government. Meanwhile, in Indiana statewide during that time, according to data from reporting law enforcement agencies, black people were 3.5 times more at risk of a pot arrest; nationally, the disparity between the rates of black arrests and white arrests was 3 to 1. In the study Buttigieg cited to back up his claim in Iowa, the ACLU in 2013 found a 3.7 to 1 disparity nationally. The study is also referenced in Buttigieg’s Douglass Plan for Black America, which calls for marijuana to be legalized and arrest records to be expunged.

South Bend has a black population of roughly 27,000 and a white population of around 64,000, and local police have made 1,256 arrests for pot possession since 2012. Of those, 805 were black, while just 449 were white. Nationally, the rate of marijuana use is roughly equal for blacks and whites. The disparity in South Bend policing extends into other crimes: In 2018, 22 black people were arrested for selling weed in South Bend, while just 4 white people were taken in.

In 2018, 714 people were arrested for all drug-related offenses. Despite making up just a quarter of the population, more than half of those, 384, were black. While overall, South Bend was worse than both Indiana and the country as a whole, there were some individual years during which arrest rates for black people in South Bend were lower than the statewide average.

Sean Savett, a spokesperson for the Buttigieg campaign, wrote in a statement: “While mayors don’t make the law related to drug possession, Pete has been an outspoken advocate for legalization because he recognizes the disparate impact these laws have in devastating Black communities and the lives of Black Americans, particularly young Black men. It is also why he’s one of the only candidates to make eliminating incarceration for drug possession part of his presidential platform, and it’s why he’s proposed legalizing marijuana, expunging past convictions, reducing sentences for other drug offenses — and applying those reductions retroactively.”

Before Buttigieg entered office, according to testimony from one former city official, a small group of white police officers conspired to push the city’s black police chief, Darryl Boykins, out of his job, hoping to use donors to persuade Buttigieg to make the move. “It is going to be a fun time when all white people are in charge,” one officer reportedly said.

Buttigieg did fire Boykins, but after protests from the black community, rescinded the firing and demoted him instead. Though the parties deny any involvement, the affair, Buttigieg later wrote in his memoir, “affected my relationship with the African-American community in particular for years to come.”

Henry Davis Jr., who was recently elected to a third term to the city council, told The Intercept he was unsurprised to hear the significant disparity in arrests. “It’s bad as hell here,” said Davis. “The numbers for African American police officers have dropped to historic lows.” He also said that Buttigieg has yet to make a human connection with the South Bend black community. “He feels like it’s an open book test: If I do these things, then I win,” he said. “He’s discounting the fact that he’s dealing with human beings.”

Davis lost to Buttigieg in a 2015 primary for mayor, and has often butted heads with the city over policing. In October 2012, after leaving a council meeting in which he voted against a police union contract, Davis was pulled over and detained at gun point. Davis, according to the dash cam video, protested that officers knew who he was. “I know exactly who you are,” one told him, explaining he had been pulled over for a “sudden lane change,” though there’s no evidence of such a lane change in the video. In the wake of the Boykins fiasco, Davis had reported the South Bend Police Department to the Department of Justice for an investigation into the racist remarks caught on police recordings, and the officers sued him for defamation, which was tossed out of court.

Jorden Giger, a 28-year-old South Bend activist with Black Lives Matter, agrees with the prominent criticism that Buttigieg ignores the concerns of black people in South Bend. “Mayor Pete is like, you know, he’s very calculating,” Giger said.

The mayor’s focus on police accountability in his presidential campaign is puzzling, he continued, “because we don’t see that here in South Bend.” Black Lives Matter activists held rallies in downtown South Bend in July and August to push the mayor on a set of demands for him and the police force — among them, the removal and demotion of several officers, including Chief of Police Scott Ruszkowski, who was implicated in suggesting to the mayor who should replace Boykins. BLM wanted the mayor to create a civilian review board for incidents of police violence, along with instituting anti-bias testing and updated bias training.

Buttigieg often touts the Board of Public Safety, Giger said, which oversees disciplinary actions for police and firefighters, and which includes three black men.

Buttigieg in a 2017 address said that “complaints about the conduct of officers are rare” but “taken very seriously,” citing as proof the existing Board of Public Safety, what he called “one example of a ‘citizen review board.’” In an April story, South Bend City Council Member Regina Williams-Preston told the New York Times that the mayor’s suggestion “was a betrayal.”

“Citizens had asked for a citizens’ review board, and for him to say now we have one, in fact it’s the same thing we’ve always had, that was really disingenuous,” Preston told the Times. She did not immediately respond to a request for comment.

“They’re political appointments,” Giger said of the Board of Public Safety. Giger said activists have asked him remove and replace several members, but the mayor hasn’t. “He’s not using any of his political capital to address these issues here locally. I think he just wants to get away from South Bend as quickly as he can.”

Buttigieg has struggled to gain traction among nonwhite voters, polling close to zero among Hispanic and black voters. His chief piece of policy outreach to the black community, the Douglass Plan, led to controversy when The Intercept reported that two of the top three high-profile black South Carolina supporters touted by the campaign were not in fact supporters of the plan, or of Buttigieg.

Giger said he was unimpressed by the Buttigieg campaign’s explanation for his lack of black support, namely that black voters simply aren’t familiar with the candidate yet. “It’s very difficult to convince white moderates or white liberals to really get it,” Giger said.

The post Pete Buttigieg Says Marijuana Arrests Signify “Systemic Racism.” His South Bend Police Fit the Bill. appeared first on The Intercept.

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