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?

When does a meme's probative value outweigh its prejudicial effect? Alternatively titled: "Pimpin' Ain't Easy."

Melvin Roshard Alfred operated an account at Tagged.com, using the alias "King Maybach," on which he posted memes containing laudatory references to pimping and pimping culture and also contained graphic depictions suggesting dire consequences of engaging in prostitution without a pimp.  One of these memes depicts a woman’s beaten face with the words “The face she makes when she realizes she need Pimping!!!”  Another shows a man kicking a woman off a cliff, with the words “No love for renegades" and a website: “www.pimpthoughts.biz."

via GIPHY

Mr. Alfred also posted pictures to Tagged.com. One picture, for example, shows Mr. Alfred ironing money next to a gun; others portrayed material goods—earrings, shoes, and guns—all images that one might find relevant to pimping culture.

Mr. Alfred used his Tagged.com account to recruit women to engage in prostitution, typically by messaging them by saying "What's good wit cha ma?"

I know this because Special Agent Craig Tangeman posed as a 19-year-old woman named Nikki on Tagged.com and responded to Mr. Alfred's message.  A conversation ensued and Mr. Alfred encouraged “Nikki” to find a “trick”—a sex buyer—to obtain the funds to travel to Houston, Texas, where he lived. Agent Tangeman portrayed “Nikki” as concerned about engaging in prostitution and asked Mr. Alfred to explain its terminology. Mr. Alfred continued to push “Nikki” to engage in sex acts for money, explaining terms, pricing structure, and other elements of prostitution culture, and he gave her explicit guidance on the who, what, where, and how of meeting sex buyers.

A confidential source posing as “Nikki” ultimately called Mr. Alfred and told him she had engaged in a sex act for money and was able to purchase a bus ticket to Houston. Mr. Alfred agreed to meet “Nikki” at the bus station. Law enforcement was waiting at the bus station and arrested Mr. Alfred, who had a loaded gun with him as well as the cell phone he used to contact “Nikki.”

via GIPHY

Mr. Alfred was found guilty of coercion and enticement.  Naturally he appealed, and you can read the opinion here.  If you want the quick and dirty version, keep reading.

On appeal, Mr. Alfred argued that the judge should not have allowed the prosecution to show the memes to the jury for two reasons.  First, he argued that the memes were extrinsic evidence under Federal Rule of Evidence 404(b). “Evidence is considered ‘intrinsic’ when it is directly connected to the factual circumstances of the crime and provides contextual or background information to the jury, and ‘extrinsic’ when it is extraneous and is not intimately connected or blended with the factual circumstances of the charged offense.” United States v. Kupfer, 797 F.3d 1233, 1238 (10th Cir. 2015).  The government argued that the memes were intrinsic because they were part of "Mr. Alfred's attempt to brand himself as a pimp [as] part of an ongoing business enterprise." Mr. Alfred countered that by arguing “he had posted 107 photos. Of these, the government only sought to introduce eight memes that related to pimping. The fact that less than eight percent of his photos were related to pimping undermines any notion that Mr. Alfred was finely curating his online presence in an attempt to cultivate his image as a pimp.”  A finely curated image of a pimp!

via GIPHY

The court agreed with the prosecution--the memes are intrinsic because as the district court put it, "they would be evidence of his business enterprise, namely, that he is using those memes as displaying what he is about. And under the government’s theory at least, what he is about is pimping."  I promise I did not make this up, the judge really wrote that.

via GIPHY

Second, Mr. Alfred argued that the memes should have been excluded under Federal Rule of Evidence 403. Under Federal Rule of Evidence 403, evidence is excluded where “its probative value is substantially outweighed by a danger of . . . unfair prejudice.”  “In engaging in the requisite balancing, courts give the evidence its maximum reasonable probative force and its minimum reasonable prejudicial value.” United States v. Henthorn, 864 F.3d 1241, 1256 (10th Cir. 2017).

The court ruled that the "maximum probative value of the memes was significant. As discussed, a jury could conclude from the memes that Mr. Alfred was branding himself as a pimp .... Furthermore, many of the memes specifically reference why a sex worker benefits from having a pimp. In short, they are probative of Mr. Alfred’s attempt to use his Tagged profile to facilitate a pimping business by demonstrating to his potential recruits on Tagged the benefits of having a pimp."  That's four uses of forms of the word "pimp" in one paragraph.  Written by the Court of Appeals for the Tenth Circuit.

The court ruled that the memes were properly put to the jury: "The government was required to prove beyond a reasonable doubt that Mr. Alfred’s involvement in pimping was not casual or sporadic .... While the memes provided other evidence of Mr. Alfred’s long-held interest in pimping, any prejudice arose from the fact that they tended to show Mr. Alfred was, aspired to be, or held himself out as, a pimp. This was probative of an element of the offense."  I have never heard of casual or sporadic pimping.  It's a grind out there, and it ain't easy.

Mr. Alfred's pimpadocious social media presence was his downfall, and he brought it upon himself like the Odysseus of macks.  He clearly never listened to MF DOOM's "Rap Snitches Knishes" in which he says "Rap snitches, telling all their business/Sit in the court and be their own star witness."  Put another way, don't be surprised if you go to jail when you openly and notoriously brag about your crimes.  Mark alerted me to DOOM's death on New Year's Eve, observing "Very 2020."  I'm sad that he's gone, and the least I can do is work him into a post.  So check out the song and learn a thing or two.  And for the record, nothing that goes on here, as a meme or anything else, furthers my interest in pimping, be it active or casual, constant or sporadic.

Clarence Thomas Speaks!

As long-time denizens of the National Capital region, many of us have become blase about what transpires in our Federal city. It's (extremely) easy to forget how unique our system of government is in the history of the world. The fact that I am about to both celebrate and call a Supreme Court Justice an asshole without repercussion is a right and a gift that would be unthinkable to a vast majority of the humans who have ever lived. (Mostly because they didn't have internet access, but that's not the point.) And while oft-petty arguments  - and current ever-lovin' clusterfuckery - may tend to obscure the lasting genius of our system of checks and balances, seeing that system in direct action is an eye-opening and in many ways awe-inspiring thing.

I was very fortunate yesterday to witness arguments at the Supreme Court in Peugh vs. United States and Maryland v. King. A senior colleague of mine is a long-time friend of the Clerk of the Supreme Court, and invited me and another coworker to the proceedings as a guest of the Clerk. We sat in the first row behind the bar (not that kind of bar, Clarence). Maryland Attorney General Doug Gansler sat down right next to us, taking copious notes in the latter case. The junior of my colleagues is an Englishman, so it struck me as more than a bit interesting when he noted how impressed he was that our system of justice had been sustained for more than 300 years. Since they have that whole Magna Carta thing, and all. America, fuck yeah.

The first semi-surprise of the day was actually hearing Justice (Nah, mine's) Clarence Thomas speak. The legendarily taciturn Thomas is famous for not speaking during arguments before the Court. And true to form, he didn't ask any questions during the day's arguments, but he did offer the Court's majority opinion in Marx vs. General Revenue Corp., a scorcher of a Federal Rule of Civil Procedure (FRCP) dispute.

As impressive as the setting was (and for sheer Federal grandeur, it's hard to beat the scene when the nine Justices walk into the Court and take their seats in front of four massive Corinthian pillars), the thing that struck me the most about the proceedings was the degree of humor and banter on display. Justice Antonin Scalia is a regular Italian father, busting balls and dropping one-liners with regularity. Justices Sonia Sotomayor and Samuel Alito exchanged good-natured jibes about the relative quality of their respective circuit courts. Justice Stephen Breyer played the role of the avuncular grandfather, trying and failing to convince a litigant that he was but a simple caveman Justice who didn't understand this complicated modern legal system.

Meanwhile, Justice Thomas flopped about in his enormous chair in a most impressive display of active listening. He alternately leaned deeply back and stared up at the ceiling, pursing his lips and wrinkling his brow, then shot forward propelled by the chair's springs to a fully upright position. His seated gymnastics were something to behold.

It will come as no surprise to our readers to learn that I'm generally inclined to disagree with Justice Scalia's politics. It may be quite a shock to know that I found him generally likable, in a curmudgeonly way. To be sure, he's an asshole. But he comes across as our kind of asshole - irascible and prone to sarcasm. As she opened of the State's argument in Maryland v. King, Chief Deputy Attorney General Katherine Winfree described some of positive benefits derived from the State's policy of collecting DNA samples for people arrested for certain violent and property crimes. Scalia let her talk for maybe 15 seconds before letting go with both barrels. From the transcript:

MS. WINFREE: Mr. Chief Justice, and may it please the Court: Since 2009, when Maryland began to collect DNA samples from arrestees charged with violent crimes and burglary, there had been 225 matches, 75 prosecutions and 42 convictions, including that of Respondent King.

JUSTICE SCALIA: Well, that's really good. I'll bet you if you conducted a lot of unreasonable searches and seizures, you'd get more convictions, too.
(Laughter.)

JUSTICE SCALIA: That proves absolutely nothing.

This was Ms. Winfree's first-ever argument before the Supreme Court. To her eternal credit, she took Scalia's shot and pressed on. I consider myself a reasonably effective extemporaneous speaker and a relatively accomplished bullshitter, and I'm quite certain I would've wet myself and then passed out. Which brings me to another lasting impression: the quality of the intellects on display, both on the bench and among the attorneys presenting their cases, was staggering. We witnessed highly sophisticated legal arguments crafted, deconstructed, reframed, and debated (the Justices spent at least part of the time arguing with one another via their questions to counsel) on the fly.

We watched the law happen.

At some point in the proceedings, Justice Alito noted that "this is the most important criminal procedure case this Court has had in decades". In essence, the Court must decide whether DNA data can be used much in the same way fingerprints are today, or whether taking a DNA sample from an arrested suspect constitutes unlawful search and seizure. Scalia clearly believes the latter. Justices Elena Kagan and Sotomayor seemed to be concerned with the implications of police overreach. Interestingly, Justice Alito asked a series of questions that indicated he may dissent from fellow conservatives, saying twice that DNA "is the 21st Century fingerprint". And Chief Justice John Roberts was oddly obsessed with DNA left on drinking glasses, though his questions made it clear that his position on the matter was somewhat undetermined. As for me, I know what I think, but I have no idea how that jibes with the Constitution - which, frankly, is why this experience was such a fascinating one for me.

I bought this hat for Zman and Mayhugh

Smarter observers than I expect the Court to uphold Maryland's DNA collection policy, which was supported by an amicus brief filed on behalf of all 50 states and a number of law enforcement organizations. Those same observers also think the Court's normal 5-4 conservative/liberal balance will be significantly upended in this case. The fact that Alito, Breyer, and Kennedy seemed to agree on many elements of the case perhaps presages the result. Still time to get to your local bookmaker if you like what you hear.

If you're a legal scholar, or if you just want some jurisprudence, the recap of Tuesday's arguments is available at SCOTUSblog. 

It's easy to be jaded, and even easier to toss off half-baked partisan-flavored snark (though, in all seriousness, the House GOP makes Jim Zorn look like Vince Lombardi). Having the opportunity to actually watch the Supreme Court in action is impressive from a purely human perspective, and profoundly compelling as an act of government. Those Founding Fathers, man, they knew some shit. Shame they didn't have an opinion on large-magazine automatic weapons.