No Going Back

At the risk of killing one of you from second-hand embarrassment, I present to you this video from a livestream of a Colorado appeals court hearing earlier in the week. Do not operate heavy machinery while watching. 

I need all of #lawsky to see this video from a Colorado appeals court livestream yesterday. I am in actual tears. Sound *incredibly* on, the subtitles will not help.

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— Mrs. Detective Pikajew, Esq. (@clapifyoulikeme.favrd.social) June 18, 2025 at 10:47 PM

I can't believe we need a Paul Engelmayer tag

This is my third Paul Engelmayer post so I created a tag for him.  To recap, he's a judge in the Southern District of New York, which is the federal district court for Manhattan.  I've described his accomplishments previously.  On Saturday he granted a temporary restraining order requested by several state Attorneys General:

enjoining the defendants [Donald Trump and Scott Bessent] during the pendency of this action from granting to political appointees, special government employees, and any government employee detailed from an agency outside the Treasury Department access to Treasury Department payment systems or any other data maintained by the Treasury Department containing personally identifiable information .... 

It's pretty clear that Engelmayer's order bars appointees and employees from outside the Treasury Department--the part I bolded modifies the preceding three categories of people.  He then further clarified this statement by writing:

the defendants are (i) restrained from granting access to any Treasury Department payment record, payment systems, or any other data systems maintained by the Treasury Department containing personally identifiable information and/or confidential financial information of payees, other than to civil servants with a need for access to perform their job duties within the Bureau of Fiscal Services who have passed all background checks and security clearances and taken all information security training called for in federal statutes and Treasury Department regulations; (ii) restrained from granting access to all political appointees, special government employees, and government employees detailed from an agency outside the Treasury Department, to any Treasury Department payment record, payment systems, or any other data systems maintained by the Treasury Department containing personally identifiable information and/or confidential financial information of payees; and (iii) ordered to direct any person prohibited above from having access to such information, records and systems but who has had access to such information, records, and systems since January 20, 2025, to immediately destroy any and all copies of material downloaded from the Treasury Department’s records and systems, if any ....

Again, it's pretty clear that Engelmayer's order only applies to people outside of Treasury, and to people inside of Treasury who haven't gone through all the vetting and training required to handle confidential information.  And if these types of people have this particular confidential information, they should destroy it.

But we live in the dumbest timeline of the MAGA cinematic universe so stupidity ensued.  DOGE's doofus overlord called for him to be impeached.  Of course, Trump offered the opinion that Engelmayer is "crazy" for temporarily restraining an unelected, unconfirmed ketamine addict working at a fictional government department from having unfettered access to the United States' money supply.

And then there's this:

Tom Cotton and Adrian Vermeule got their undergraduate and law degrees at Harvard.  JD Vance graduated summa cum laude from Ohio State and got his JD at Yale.  All three of these guys can read and understand Engelmayer's order.  

They know it doesn't bar Bessent from accessing Treasury systems unless he hasn't completed the required background checks and training, in which case it likely maintains the status quo--you can't do that job and access all the secret stuff until you've completed all the security requirements.  

And they know this isn't judicial interference, it's a TRO.  It's temporary.  This means the requesting party showed they will suffer irreparable harm so the judge made the other party pause to maintain the status quo for a few days while we figure out what the hell is going on. 

Most importantly, they know this is exactly what the judiciary is supposed to do--determine what the law says and whether any particular act conflicts with it.  It's been this way for over 200 years, we learned that in high school.

These Ivy League schmucks need to watch more Schoolhouse Rock.

Or maybe they watched it and took the circus metaphor too far by staffing the endeavor with a bunch of clowns.  

Maybe I'm the clown.  Remember when I said elections have consequences?

Naked Politics

My least favorite law school class was Constitutional Law because, as I posited over a decade ago, "[a]ll that counts is what five out of nine middle-aged-to-elderly judges think."  What is constitutional one day might not be the next, simply because a president swapped in a new judge.  Similarly, what is constitutional one day might not be the next, simply because five of nine elderly judges want a different outcome.

For example, in 303 Creative LLC et al. v. Elensis et al., the Supreme Court held that a website designer does not have to design a website for a gay wedding when the designer believes that gay marriage is a sin and abetting the wedding would run counter to her Christian faith.  Writing for the majority, Justice Gorsuch observed:

Under Colorado’s logic, the government may compel anyone who speaks for pay on a given topic to accept all commissions on that same topic—no matter the underlying message—if the topic somehow implicates a customer’s statutorily protected trait. Taken seriously, that principle would allow the government to force all manner of artists, speechwriters, and others whose services involve speech to speak what they do not believe on pain of penalty. The government could require “an unwilling Muslim movie director to make a film with a Zionist message,” or “an atheist muralist to accept a commission celebrating Evangelical zeal,” so long as they would make films or murals for other members of the public with different messages. Equally, the government could force a male website designer married to another man to design websites for an organization that advocates against same-sex marriage. 

I understand what he's saying with these hypotheticals.  But does this also mean that a racist White person can refuse to make a website for an interracial wedding, effectively refusing to provide services to a Black person?  Justice Gorsuch refers to "all manner of artists"--how far does that extend?  Does the work of high-end chefs constitute art, and if so, can they refuse to provide their food to classes of people they don't like?  In other words, could a racist chef refuse to serve their food to Latinos?

Justice Sotomayor points to all of this and more in her dissent.  But the law of the land today appears to say, on First Amendment free speech grounds, that you can't force a business owner to provide "artistic" services to customers if the business owner does not agree with the content of the artistic work product.  I don't know how to reconcile that with discrimination.

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In another recent case, Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, the Supreme Court held that public and private universities cannot consider race during the admissions process.  The Court pointed to the Equal Protection Clause of the Fourteenth Amendment and said that this affirmative action process was discriminatory.  Chief Justice Roberts's majority opinion interestingly says:

At the same time, as all parties agree, nothing in this opinion should be construed as prohibiting universities from considering an applicant’s discussion of how race affected his or her life, be it through discrimination, inspiration, or otherwise. But, despite the dissent’s assertion to the contrary, universities may not simply establish through application essays or other means the regime we hold unlawful today.

That's weird.  I never worked in a college admissions office, but I assume that no one other than the admissions staff reads the essays.  No one knows what any particular essay says other than the applicant and whoever reads it.  How can anyone police essay review?  Does this mean that applicants can't address their race in their essay unless they discuss "discrimination, inspiration, or otherwise"?  What does that mean?  And most importantly, doesn't this limit what the applicant can say in their essay--doesn't this restrain the applicant's speech?

Maybe not.  Perhaps the applicants can write whatever they want and it's up to the admissions staff to ignore inappropriate sentences.  But does forcing the admissions office to ignore those sentences effectively curtail the applicant's free speech?  What good is free speech if the audience isn't allowed to consider it?

More succinctly, I think Con Law is bullshit.  Sometimes free speech trumps anti-discriminatory laws, while other times anti-discriminatory laws can limit free speech.  When and how the rules apply depends on how nine old people in DC feel about the matter at hand and the outcome they desire.  Mitch McConnell's gaming of the Supreme Court confirmation process got us these decisions.  No matter what you may hear, the Supreme Court is a nakedly political body.  And as much as I approve of naked bodies, we don't need any at 1 First Street.

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The Wisdom of Barbers Redux: Fox is Toast

I've written about the wisdom of barbers before when, after getting a haircut in August 2020, I opined that covid-19 "will soon run its course, turning into nothing more than a relatively routine but life-threatening infection like measles.  I predict this will happen around mid-October."  I was maybe a year too early with that prediction but that's where I think we are.

I got a haircut on Friday at that same barbershop and when I walked in the older guy, Johnny Cap, was vigorously holding forth about the Fox News defamation suit.  He read the texts and emails and was (and still is) livid that Fox reporters knowingly lied about election fraud.  He was all-in on Trump until January 6, now he's all-out.  After completing several tours of duty in the Middle East as a Marine mortarman, his son is now a National Guardsman and was deployed to the Capitol for something like two months after the riot.  Suffice it to say that blood is thicker than spray-tan, and he's pissed that Trump and his supporters ginned up a bunch of nonsense that put his son in harm's way.  Sort of like W and his supporters did--I sense a pattern here but that's something for a different post.

John is now of the view that you can't trust the news because it's all entertainment.  He parenthetically carved out the local news from that conclusion, "but that's all car accidents and murders."

This is a long-winded way of saying that we've reached a tipping point.  If Johnny Cap turned against Fox then a lot of other people have too.  Fox is toast.

For the sake of completeness, you can review the Delaware (that's where Dominion sued Fox) civil pattern jury instructions here.  I already did this so you don't have to.  Here's what the jury will be told about defamation:

Defamation is a communication that tends to injure a person's "reputation" in the ordinary sense of that word; that is, some statement or action that diminishes the esteem, respect, goodwill, or confidence in which the person is held and tends to cause bad feelings or opinions about the person.  Defamation necessarily involves the idea of disgrace.  In this sense, a communication is defamatory if it tends to lower the person in the estimation of the community or if it deters third parties from associating or dealing with the person defamed.

But defamation occurs only when the defamatory information is communicated to someone other than the person to whom it refers.  In the law, this is known as "publication."

Del. P.J.I. Civ. § 11.1.  Dominion's reputation absolutely suffered based on Fox's coverage.  I'm also willing to wager that a lot of municipalities don't want to do business with Dominion because (1) they believe that Dominion machines are rigged, or (2) they don't want to deal with constituents who believe that Dominion machines are rigged.  Looks like defamation to me.

Here's how the jury will be instructed about "the truth" as a defense to defamation:

It is an absolute defense to a claim of defamation that the alleged defamatory statements were substantially true at the time the statements were made.  Thus, even if you find that [defendant's name] made defamatory statements about [plaintiff's name] that proximately caused [him/her/it] injury, you cannot award damages if you find that the statements were substantially true.

The alleged defamatory statements don't have to be absolutely true for [defendant's name] to successfully assert this defense.  Substantially true statements are not defamatory.  To determine if a statement is substantially true, you must determine if the alleged defamation was no more damaging to [plaintiff's name]'s reputation than an absolutely true statement would have been.  In other words, if the "gist" or "sting" of the allegedly defamatory statement produces the same effect in the mind of the recipient as the precise truth would have produced, then the statement is "substantially true" and you cannot award damages to [plaintiff's name] for the statement.

To prevail on this defense, [defendant's name] bears the burden of proving by a preponderance of the evidence that the alleged defamatory statements were true or substantially true.

Del. P.J.I. Civ. § 11.12.  I think it's pretty clear that Dominion's voting machines did not flip votes to Biden; Hugo Chavez wasn't involved either.  Chris Krebs told us that.

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So what does Dominion have to prove to beat Fox?  I think they qualify as a "public figure" so it's a relatively high bar:

[Plaintiff's name] has the burden of proving by a preponderance of the evidence facts necessary to establish each of the following elements of [his/her/its] claim:  

(1) that [defendant's name] defamed [him/her/it]; 

(2) that [defendant's name] published the defamatory matter; 

(3) that [defendant's name] intentionally or recklessly failed to determine the truth of the defamatory matter; and 

(4) that the publication of the defamatory matter caused injury to [plaintiff's name].

Del. P.J.I. Civ. § 11.7.  We established a defamatory statement above, that's element 1.  And we have publication--Fox news said it over and over on TV, that's element 2.  

For element 3, Fox knew these statements were untrue.  For example, Sean Hannity said "that whole narrative that Sidney [Powell] was pushing.  I did not believe it for one second."  Dana Perino said this story was "total bs," "insane," and "nonsense;" much like most people, she also pondered "Where the hell did they even get this Venezuela tie to dominion? I mean wtf?"  Even Rupert Murdock said "It’s been suggested our prime time three should independently or together say something like ‘the election is over and Joe Biden won,’” and that such a statement “would go a long way to stop the Trump myth that the election [was] stolen.”

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As to injury, the fourth element, Dominion notes that "Where a defendant's statements are per se defamatory, the plaintiff need not prove damages to establish liability Instead, in per se defamation cases, 'injury is assumed.'" Celle v. Filipino Rep. Enterprises Inc., 209 F.3d 163, 179 (2d Cir. 2000).  A statement is per se defamatory "if it (1) charges the plaintiff with a serious crime; [or] (2) tends to injure the plaintiff in her or his trade, business or profession." Kasavana v. Vela, 172 AD3d 1042, 1044 (2d Dept. 2019).  I suspect Dominion can show that they lost contracts which would establish prong 2 (and damages).  Election fraud is, of course, a serious crime.  So we can check off element 4 as well.

Whether you go with a seat-of-the-pants/man-on-the-street hot take or a reasoned review of the legal standards, Fox is screwed.  Fake news indeed.

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Sentence of Dave Inspires Me, Alternatively Titled "My Earliest Appearances in Court"

Dave of Sentence of Dave wrote two recent Davish posts about his son's speeding tickets and subsequent court appearance, including an aside that "Alex should be thankful that he has a supportive father who accompanied him to court" just to prove that Dave wrote it.  This inspired today's post.

Almost 30 years ago I spent a summer in the Burg living with rootsy, Nelson, and Juan Moritz on Braxton Court.  This confederacy of dunces encountered a comedy of errors including broken pipes, shower fungus, and a misunderstanding of when the co-eds from whom we sublet the place expected us to be out.  But we managed to eke out some fun along the way.

I used Hoopy's name to get a job working at the Short Stop Cafe.  I think I made it through three shifts before I was fired.  I misread the calendar and showed up for a dinner shift when I was supposed to work a lunch.  The manager said "We have a policy here, no show, no call, no job."  I replied without skipping a beat, naturally, "No shit." and handed him my apron and Shortstop polo shirt.  I'm still bad at calendars but I haven't been fired since.

I was not phased by this turn of events.  I knew I wasn't cut out for the waitering life, with its formalities and expectations like courtesy and politeness.  I was too sick and rude to wait.

Shortly afterwards, I saw a sign at Paul's Deli advertising an opening for a delivery driver.  This seemed like a good fit.  I like to drive, it involved minimal customer interaction, I got a free meal on each shift, the commute was about 250 feet, and I could smoke cigarettes on the job.  It suited my 21-year-old lifestyle to a T.

Except for the part about the cops.  Williamsburg is crawling with them.  Campus Police, Colonial Williamsburg Police, Ford's Colony Police, Kingsmill Police, Williamsburg Police, James City County Police, State Troopers, all of them looking to pull over a young guy in a Japanese car with NJ plates driving 6 to 9 MPH over the limit.  All this is to say I had a lot of interactions with the local constabulary.  In these situations I would point to the pile of pizza and sandwiches in the passenger seat, explain that I deliver for Paul's, and occasionally they would let me off with a warning.  Or they might give me a ticket for improper equipment, a misdemeanor that doesn't put points on your license.  About half the time they would give me a speeding ticket for 5-9 MPH over the limit (no matter how fast I was really going).

I couldn't afford the points and resulting insurance hike so I would put on a jacket and tie, take the ticket to court and beg the judge for mercy.  Sometimes the cop wouldn't show up so the judge had to let me go scot-free.  Other times the judge would knock the ticket down to improper equipment, maybe they liked Paul's French dip (truly a hidden gem of a sandwich).  Once I negotiated with the prosecutor before the proceedings started and walked out with improper equipment instead of speeding.

My favorite courtroom appearance, to this day, arose from such a situation.  I was driving on Route 60 towards the Outlets and the myriad hotels, motels, and mobile estates out that way.  I made this run a million times and knew every crack and pothole in the road.  I also knew where the 25 MPH zone ended and the 40 MPH zone began.  I was cruising along at about 30 MPH in the 25, and once I was within sight of the 40 MPH sign I sped up.  Almost instantly, out of a shitty little hidey-hole tucked twixt two shrubberies popped Sneaky Pete.  I looked down, saw I was doing about 37 MPH, and pulled over immediately.

Radio off, interior light on, window down, rearview tilted up so I didn't get blinded by the coplights, hands on the wheel.  A Statie rolled up, a young guy.  He gave me permission to get my documents from the glove box, asked how fast I was going, and I told him "37 MPH because I could see the 40 MPH sign" and gave him my usual song and dance about Paul's.  He appreciated my honesty so he was honest too.  "It's the end of the month and I need to make my number.  You've been straight with me so if you come to court I'll tell the judge you were cooperative so he might reduce the fine."  This is why people hate the regulatory state but I didn't get into that right then and there, instead I took what the defense gave me and checked down to "Thank you sir."  After we exchanged the relevant paperwork I went back about my business with the popcorn shrimp and hot Hollies.

For whatever reason I had to appear at the courthouse in Yorktown.  The judge was straight out of central casting, a Southern fried take-no-bullshit sumbitch like Fred Gwynne in "My Cousin Vinny" and he looked like the judge from "Air Bud."  The entire proceeding irritated him and he had complete disdain for most of the lawbreakers who came before him.  He threw the figurative book at almost everyone.  Almost.

I got there a little bit before the appointed time, and that was a stupid move--this court also has jurisdiction over maritime issues so I had to sit through an hour of boating and crabbing shenanigans.  And they really were shenanigans.  In the maritime session, a Vietnamese guy tried to fight a ticket for taking some undersized crabs.  The judge lit into him, "This is whyyyyeh we don't have enough cray-yibs innymore!  Becuz pyeople lahk yeeeew are tayehkin' unnersahzed cray-yibs en overcrabbin' the bay!"  The defendant couldn't follow what was going on and barely managed to say anything in English in response.  The judge yelled some more and hit him with a $750 fine.

Very next guy up was Jimmy Joe Jim Bob John from Croaker or Norge or whatever.  The cop explained the facts--same as the previous guy, except he had two coolers full of too-small crabs.  The defendant was incensed.  "Judge" he said, "Ah've bin crabbin the bay since ah wiz knee-hah to a grasshopper en ah've nivver bin tickitted fer sumpin lahk this!!"  I swear to god he said knee-high to a grasshopper.  The judge was suddenly accommodating and said "Sir, ah unnerstan how yew fee-yil, buuht the sitchy-ation here is bay-yid.  Pyeople are overcrabbin the bay!  An if yew keep takin 'em fore they're ole nuff tuh reeper-duce, sum day we wone have inny lift!"  Jimmy Joe Jim Bob John adjusted his mesh baseball hat, put his hands on his hips, and screwed up his face as if to say "Ah cay-yint argue with tha-yit."  The judge turned him out with a $250 fine and an admonishment to consider future generations of crabbers.

White privilege is real.

Eventually they got to the landlubber moving violations.  The defendants were called based on the cop who caught them, so that each cop worked through all his criminals in one batch, allowing him to promptly get back to eating donuts and giving himself testicular cancer with the radar gun.  The judge demolished everyone, he didn't want to hear anyone's excuses or stories about anything until a pretty little girl went to the defendant's table for a ticket written by Sneaky Pete, the same guy who wrote mine.  She was accompanied by a guy who I assumed was her father until he entered an appearance as Sam Slickness from Dewey Cheatam & Howe.  The cop explained that he pulled her over making a U-turn at a stoplight that had a "NO U-TURN" sign.  Open and shut, right?  No!  Slickness did his dizzle.

First he asked the cop if the little girl had any other moving violations on her license.  She didn't.  Then he asked if she was polite when pulled over.  She was.  Then he asked if any drugs or alcohol were involved.  They weren't.  Slickness then said "Yer onner, as you can see, li'l Suzy Sweetness nivvir did innythin lahk this before, she was pulaht to the ossifer, en there are no extenyatin circumstances with the incident.  She jus gradjeeated from Yorktown Hah School, she's about to be a frishmin at the University of Virginia, en her daddy, Poppa Sweetness, is on the town council here in Yorktown."

The judge leaned forward and grinned like the Cheshire cat.  "Li'l Suzy Sweetness, dew yew promise yer nivvir gonna do this agin?"  Butter wouldn't melt in her mouth as she coyly relied "Yessir" and batted her eyes.  "Aw-rite thin" purred the old judge, "ahm givin yew a ticket for im-proper equipmin.  Run along now, en ah don't wanna see yew in my courtroom agin," smiling the whole time.

Then they called me.

Sneaky Pete explained the facts as he recalled them and based on his notes, ending with 37 MPH in a 25.  Then I did Slickness's dizzle.

I did not know anything about precedent or stare decisis, but I figured I should say what the lawyer just said, adapting to my facts of course.  The only differences were (1) I was within sight of a sign that allowed me to do what I was doing, and (2) my daddy wasn't on the town council here in Yorktown.  I assumed there was no way he couldn't let me off if I did what the lawyer did, otherwise it would be clear that the only reason Suzy Sweetness skated was her father's position on the town council.

So I asked the cop if I had any other moving violations on my license.  I didn't (thanks to all those "improper equipment" trips to court previously).  I asked if I was polite when pulled over.  I was.  I asked if any drugs or alcohol were involved.  They weren't.  I asked if I was within sight of a 40 MPH sign when the cop hit me with the radar gun.  I was.

Then I said to the judge "Your honor, I have no other moving violations on my record, I was polite when pulled over, and there are no extenuating circumstances with the incident.  I was doing 37 MPH because I was within sight of the 40 MPH sign, and I was speeding up in anticipation of entering the 40 MPH zone.  I deliver food for Paul's Deli so I'm familiar with where the different zones begin and end.  I'm about to be a senior at the College of William & Mary, and I promise I'm never going to do this again."

The judge was livid.  He saw exactly what I was doing, and exactly why he couldn't throw the book at me.  He leaned forward and through clenched teeth asked me "Suuun, did yew say yer a stewdin ay-it the laaaw skoo-wul?"

"No sir" I replied, "I'm just an undergrad delivering pizza to pay some bills."

He could've spit nails. "Ahm fahnin yew fer im-proper equipmin, yew be-yin the im-proper equipmin!!  En ah don't ever wanna see yew in mah courtroom agin!!"  Then he banged his gavel.

Some of the poor slobs waiting their turn before this hanging judge gasped.  One or two cheered a bit, there was even a brief smattering of clapping.  I left the courtroom to pay my fine and a middle-aged woman ran after me.  She caught up to me and panted, "That was incredible, how did you do that?"  I replied "I just said what the lawyer right before me said, I figured if it worked for him it should work for me."  Stunned, she smiled and went back into the courtroom.  I like to think that everyone else followed my lead and went home with im-proper equipmin fines too. 

What do Eddie Van Halen and Thomas Edison have in common?

Did you know that Eddie Van Halen is an inventor?  He is named on three utility patents and two design patents.  The design patents are pretty easy to understand.  One claims the design of a guitar peghead, the other claims the design of a guitar pickup.

Two of the utility patents are a little more complicated.  One claims an apparatus for adjusting the tension on the strings of a musical instrument.  The other claims a humbugging pickup.  Whatever that is.

The third is my favorite.  It claims an apparatus that lets you play a stringed instrument tilted 90 degrees upward from how you normally hold it.  I like it not because I want to jam out perpendicularly, but because it has the most rock n roll figure I've ever seen in a patent.

Rest in peace Eddie Van Halen, guitar superhero and patent rockstar.

The Twelve Days of Gheorghemas 2019 Day 9: Nine (six, really) goats goatating

On the ninth day of Gheorghemas
Big Gheorghe gave to me:

Nine (six, really) goats goatating
Eight Autographs Showing How Sad My Childhood Was
Seven Books for Reading
Six Vinyl Discs
Five golden (Cream Yellow, really) cylinders for Squeaky
Four players playing
Three Nutty Squirrels
Two Chilean bangers (literally)
And a British lass slingin’ hot meat

Al Johnson's Swedish Restaurant & Butik is, as its name implies, a Swedish restaurant and boutique in Sister Bay, Wisconsin. More specifically, their website explains that "Al Johnson’s is an authentic Swedish family owned restaurant where you can find goats grazing the sod roof. It's quite a sight, and it's made this place one of the most famous restaurants in Door County."

That's right, the building features goats grazing on its roof. They even have a goatcam from May through October.

This feature is so remarkable and noteworthy that the owners applied for, and the United States Patent and Trademark Office granted, trade dress registration for the goats on the roof. Seriously. Here's their drawing of the mark:

I learned all of this because Todd C. Bank, allegedly a real person and an attorney, filed a petition to cancel Al Johson's trade dress registration. If you've been reading my G:TB stuff for any period of time, you probably predicted that. Also predictable: the court referred to the trade dress as the "Goats on the Roof Registration" throughout their opinion.

Much less predictable are Mr. Banks's arguments against the Goats on the Roof Registration. In particular, "Mr. Bank sought to cancel the Goats on the Roof Registration as functional, alleging that the trade dress 'is demeaning to' goats, which, in turn, 'is offensive to [Mr.] Bank and denigrates the value he [and others] place[] on the respect, dignity, and worth of animals.'"

Perhaps Mr. Bank was once a goat himself. He will always be a goat to me.

The Federal Circuit agreed with my latter sentiment and booted his case for lack of standing. In plain English, Mr. Bank had no "legitimate personal interest in the opposition."

Remarkably, this was the third time Mr. Bank opposed the Goats on the Roof Registration so the court awarded the restaurant its costs and attorney fees. Marls and the other barristers among our readership are likely saying "oh snap!" to themselves. Those of you who were smart enough to avoid law school will have to take my word for it when I say this is quite a benchslap.

If you want to show support for Al Johnson and his goats, I suggest you peruse the wonderful offerings in their butik. For example, they have these socks for Teedge:

Yes, those are goats wearing bowties.

They have these golf balls for Danimal:

And a shot glass for Whitney:

TR would love these playing cards with naked goats on them:

They even have child size goat tshirts for rob:

Who wouldn't like this goat hat (Scandanavian woman not included):

And just in time for Gheorghemas, this Änglaspel goat rotary candle holder would look perfect on everyone's mantle. Everyone should have a set of six to nine goats goatating in their living room.

Merry Gheorghemas everyone!

Just a Quick Recap

Yesterday the White House released a memorandum summarizing a conversation between Donald Trump and Ukrainian President Volodymyr Zelenskyy. Soon thereafter, millions of pundits analyzed the document and pontificated as to whether or not the conversation amounted to a quid pro quo--a grant of military funding from the US to Ukraine in return for Ukraine initiating an investigation into Joe Biden's son. I think it's pretty clear that the conversation resulted in a bartered-for exchange:

Trump said "United States has been very very good to Ukraine. I wouldn't say that it's reciprocal necessarily because things are happening that are not good but the United States has been very very good to Ukraine."

Zelenskyy replied "Yes you are absolutely right .... I would also like to thank you for your great support in the area of defense. We are ready to continue to cooperate for the next steps specifically we are almost ready to buy more Javelins from the United States for defense purposes."

Trump immediately replied "I would like you to do us a favor ..." and asked for Ukraine to look into CrowdStrike.

Zelenskyy's next words were "Yes it is very important for me and everything that you just mentioned earlier. For me as a President, it is very important and we are open for any future cooperation." He then said he's looking forward to seeing Rudy Giuliani.

Trump rambles for a sentence or two and then says "The other thing, There's a lot of talk about Biden's son, that Biden stopped the prosecution and a lot of people want to find out about that so whatever you can do with the Attorney General would be great. Biden went around bragging that he stopped the prosecution so if you can look into it... It sounds horrible to me."

Zelenskyy responds that "the next prosecutor general will be 100% my person, my candidate, who will be approved, by the parliament and will start as a new prosecutor in September. He or she will look into the situation, specifically to the company that you mentioned in this issue."

Trump replies "I will have Mr. Giuliani give you a call and I am also going to have Attorney General Barr call and we will get to the bottom of it. I'm sure you will figure it out."

Zelenskyy notes that he stayed in the Trump Tower the last time he visited New York City and adds that he "would like to thank you very much for your support."

Satisfied, Trump wraps things up with "Good. Well, thank you very much and I appreciate that. I will tell Rudy and Attorney General Barr to call. Thank you."

These guys just did a deal, right? In a nutshell, the first guy told the second guy that the second guy takes but doesn't give; the second guy offered to make it up to the first guy by "coooperating" to buy some stuff from him; the first guy asked for a favor; the second guy said yes and noted that he's open to "future cooperation"; the first guy asked for another favor; the second guy said he'd put someone on it right away; the first guy said his boys Rudy and Bob would be in touch to discuss next steps; they both thanked each other.

How is this not a quid pro quo exchange? More importantly, WHO THE FUCK CARES IF THIS IS A QUID PRO QUO EXCHANGE!?!?!? THIS IS FUCKING COLLUSION OR CONSPIRACY OR COOPERATION OR WHATEVER ELSE YOU WANT TO CALL IT!!!

Robert Mueller and his team spend close to two years investigating Russian interference in the 2016 Presidential election. He was not looking for "quid pro quo," he was looking for "coordination" between the Russian government and the Trump campaign. I know this because page 2 of the Mueller Report says "we addressed the factual question whether members of the Trump Campaign 'coordinat[ed]'—a term that appears in the appointment order—with Russian election interference activities." Page 2 of the Mueller Report notes that "[l]ike collusion, 'coordination' does not have a settled definition in federal criminal law. We understood coordination to require an agreement—tacit or express—between the Trump Campaign and the Russian government on election interference."

Isn't that exactly what Trump and Zelenskyy did? They tacitly agreed to interfere with the upcoming 2020 Presidential election, right? Why isn't anyone saying this? Why is everyone debating "quid pro quo"? You mean to tell me that if Mueller found a tape recording of a phone call between Trump and Putin saying what I outlined above, Mueller still would have concluded that there was no "cooperation" between Trump and Russia? If you're telling me that, please pass me whatever you're drinking.

The Mueller Report also analyzed the facts under the rubric of conspiracy, applying 18 U.S.C. § 371 and statutes with similar standards. Mueller Report at 181. The elements of conspiracy under 18 U.S.C. § 371 are:

(1) Two or more persons
(2) conspire (i.e., intentionally agree--you can't have a conspiracy between a criminal and an undercover cop because the cop doesn't really intend to commit the crime)
(3) to commit any offense against the United States, or to defraud the United States, or any agency thereof in any manner or for any purpose, and
(4) one or more of such persons do any act to effect the object of the conspiracy

Trump's call with Zelenskyy had two people. Element 1, check. They intentionally agreed to do something, namely to investigate CrowdStrike and Biden. Element 2, check. Trump hopes that investigating Biden will result in information adverse to his political rival, so he's asking a foreign government to provide information that will influence the next election. Element 3, check (see 52 U.S.C. § 30121(a)(1)(C); United States v. Renzi, 769 F.3d 731, 744 (9th Cir. 2014)). So long as Zelenskyy took a single step towards investigating Biden, we have element 4 and thus a conspiracy.

I just explained this in under 1000 words (987 to be exact) and I could definitely pare it down if I wasn't lazy. Why doesn't anyone else with a bigger platform point this out? Probably because DJ Trump Jedi mind tricked everyone again, and has us all talking about quids and pros. To paraphrase KRS-ONE, I encourage you to wake up, take the pillow from your head and put a book in it. Or at least a few statutes.

Don Ameche is not one of these amici but they are impressive nonetheless, Alternatively Titled “I Shot the Sheriff but I did not Shoot the Deputy”

Jamal Knox was sentenced to two years in prison for performing a rap song that was his take on N.W.A.'s "Fuck tha Police." The Pennsylvania Supreme Court upheld the sentence. Apparently he mentioned two specific police officers by name in the song, and they previously arrested him on drug charges. They alleged that the song was a "terroristic threat" and thus not protected by the First Amendment. Mr. Knox appealed this matter to the Supreme Court of the United States.

I know this because Erik Neilson, a professor at the University of Richmond, and Michael Render, one half of Run the Jewels (aka Killer Mike) filed an amicus brief in support of Mr. Knox. It opens with:

Additional amici include musical artists Chancelor Bennett (“Chance the Rapper”), Robert Rihmeek Williams (“Meek Mill”), Mario Mims (“Yo Gotti”), Joseph Antonio Cartagena (“Fat Joe”), Donnie Lewis (“Mad Skillz”), Shéyaa Bin Abraham Joseph (“21 Savage”), Jasiri Oronde Smith (“Jasiri X”), David Styles (“Styles P”), Simon Tam (member of The Slants and petitioner in Matal v. Tam, 137 S. Ct. 1744 (2017)), and Luther R. Campbell (member of 2 Live Crew and petitioner in Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994)), as well as music industry representatives Alan Light (former Editor-in-Chief, Vibe and Spin magazines), Dina LaPolt, Patrick Corcoran, Peter Lewit, and the entertainment company Roc Nation, LLC.

Further amici include scholars Michelle Alexander (Union Theological Seminary), Jody D. Armour (University of Southern California Gould School of Law), Paul Butler (Georgetown Law), Andrea L. Dennis (University of Georgia School of Law), Murray Forman (Northeastern University), Kyra Gaunt (University at Albany, SUNY), Lily E. Hirsch (California State University, Bakersfield), Robin D.G. Kelley (UCLA), Walter Kimbrough (Dillard University), Rev. Emmett G. Price, III, (Gordon-Conwell Theological Seminary), and Eithne Quinn (The University of Manchester).

For the record, Quinn Emanuel represents Killer Mike, Chance the Rapper, Meek Mill, Yo Gotti, Fat Joe, 21 Savage, Styles P, Luke Skyywalker, and the guy from The Slants who made it into one of my trademark-related comments. That shit cray!



It only gets better. You can read it here, and you should. But if you're too lazy here's the point: old white people, particularly racist old white people, don't understand that hiphop music is a lot of bragging and boasting (addressed here previously, see point four), fictional story telling, spinning of good old-fashioned yarns. It isn't real. Oddly, old white people seem to understand this in other forms of music. As Ice-T said, "I ain't never killed no cop .... If you believe I'm a cop killer, you believe David Bowie is an astronaut."

The Quinn Emanuel folks gave a pretty pointed take:

Additionally, the song is replete with lyrics that defy a literal interpretation. For instance, the lyrics refer to heavy artillery, enough to “shake the motherfuckin’ streets,” and mention all of the “soldiers” in the Ghetto Superstar Committee. Id. at 3a-4a. Neither Knox nor Beasley has served in the military or ever possessed street-shaking heavy artillery. (And neither has served on a committee of superstars, ghetto or otherwise.) The lyrics repeatedly refer to the rappers’ “riches,” id. at 3a, yet Knox lived in public housing and Beasley was represented by a court-appointed attorney. The song threatens to turn the Highland Park area of Pittsburgh into Jurassic Park, but neither rapper was found to have recreated dinosaurs. Id. at 4a.

And what about the lyric “you taking money away from Beaz and all my shit away from me / well your shift over at three / and I’m gonna fuck up where you sleep”? Id. This was singled out by the Pennsylvania Supreme Court as evidence that the rappers had actually learned when the officers’ shifts began and ended. But nothing in the record indicates that either officer’s shift ended at 3:00.

A quick scan of the lyrics reveals a much more likely reason for the reference to “three.” It rhymes.

Yes. Yes it does.

The brief also presents some pretty remarkable psychological studies involving country and hiphop music. I won't ruin it for you, read the brief because it's really well laid out. I will say, however, that shooting a man in Reno just to watch him die, or positing that you can't hang a man for shooting a woman who was trying to steal his horse, is some pretty gangster country (Gangstabilly?) shit. Country music is full of murder ballads! But no one wants to lock up Lyle Lovett.

For what it's worth, I'm stunned that 30 years after N.W.A. released "Fuck tha Police" with the line "when I'm finished, it's gonna be a bloodbath of cops dyin' in L.A." someone else is in jail for singing a different song with the same title and similar anti-police lyrics. I guess the moral of the story is to stay out of Pennsylvania. I'll keep you posted on how this develops.

via GIPHY

What Will You Tell Your Grandchildren?

Jim Comey's pulled off a unique double over the past year, managing to inflame the passions of both the left and right wings of the American body politic. The former Director of the Federal Bureau of Investigation (FBI) spent 90 minutes on Friday talking about that, about his time at the Bureau, and about his fairly optimistic view of the future of the United States in a candid discussion with Ben Wittes of Lawfare.

The conversation, recorded for the Lawfare blog's podcast series, was open to the public, so I took advantage of my proximity and a nice hole in my late-week schedule to attend. Throughout a discussion of complex issues and an overheated time in our political history, I was struck more than anything by Comey's decency, humility, and humanity.



As he recounted the events surrounding his firing, Comey said that the only thing that made him angry was the way he was prohibited from saying goodbye in person to the people with whom he had relationships, like the custodial staff and the ladies in the special records room on the 7th floor of FBI headquarters. He called that aspect of his dismissal especially cruel.

Wittes is an admitted friend of Comey's, and the questioning was kind to the guy who many on the left fervently believe led to Hillary Clinton's loss in November. Comey noted that reasonable people have reason to criticize his decision to go public with the news that the FBI had reopened an investigation into Clinton's handling of emails, but characterized his choice as between an option that "sucked" and an alternative that "really sucked". Not exactly the phrasing I expected from a former FBI Director.

Comey took pains several times to pop his own bubble - he's either a very relatable guy, or a terrific actor. He routinely bought a sandwich in the FBI cafeteria for lunch (a practice far from the norm for past Directors) and asked questions of the people he found himself in line with. On one occasion, he spoke with an enthusiastic young IT technician, who explained how much he loved working for the FBI before asking Comey, "So, what do you do?" When Comey responded, "I'm the Director", the junior staffer asked, "Of what, like a division or something?"

"Dude, I'm the Director of the FBI," replied Comey. His wife enjoyed that story, according to Comey, who was surprisingly funny.

Throughout the session, Comey never mentioned the current President* by name, though he pulled very few punches in describing the damage to norms his administration and a complicit Congressional GOP are doing. He castigated Republicans for the way they've drifted far away from the foundational values that have governed us for centuries, specifically talking about the rule of law, all in the name ephemeral political outcomes. His test is a simple one: What will you tell your grandchildren when they ask what you did to stand up and be counted? In his analysis, too many in the modern GOP will fail that test if they're honest with themselves.

In the end, Comey's an optimist about our country. He described a number of tipping points in our history where Americans rose up to affirm our common values and resist threats to our unique republic. The American people are a sleeping giant, as Comey sees it, and once awoken are capable of righting even great wrongs.

He analogized our current times as a forest fire, capable of doing great damage in the short term, but ultimately regenerative. Comey sees green shoots in the work being done by the press and certain Congressional leaders, as well as the increasingly vocal common people refusing to accept the erosion of certain norms. (For what it's worth, Wittes wondered if a giant meteor of death might be a better descriptor of modern America.)

I found myself understanding the former analogy, wishing it were accurate, and deciding that it might not be. But Jim Comey's seen a lot more than I have, and he's a lot smarter than the average bear, so I'll continue to hope he's correct.

And I'm pretty sure he'll have no problem answering his grandchildren's questions.