Pilutik – The Underground Bunker

McConnell adds Section 230 repeal as a poison pill to kill $2,000 checks

Scott Pilutik — Wed, 30 Dec 2020 03:54:21 +0000

Because a website like The Underground Bunker can only exist because of Section 230, Scott Pilutik’s take on current legislation seems especially important.

Tonight is a busy night in Covid Relief Legislative Theater, so I’ll try to briefly summarize because it’s a bit confusing.

A Covid-relief bill has already passed, and was signed by the president. Among other things, it accounted for $600 stimulus checks.

Long after that bill was negotiated, at which negotiations his administration worked with GOP leaders to cap stimulus checks at $600, Trump, for whatever Machiavellian reason, evidently decided that the Democrats opening negotiating position of $2,000 stimulus checks was better and publicly advocated for it.

House Democrats, calling Trump’s bluff, passed a bill (with significant GOP support) to increase the stimulus check amount to $2,000.

Mitch McConnell, after earlier refusing to hold a vote on the issue (likely fearing it would pass), tonight countered by introducing a bill to increase the stimulus check amount to $2,000 … AND … repeal Section 230 of the Communications Decency Act, which repeal Trump would surely love, until he eventually came to understand that a repeal of section 230 would result in his tweets being removed on a daily basis.

McConnell doesn’t have the votes to repeal Section 230 even among Republicans, so this is really just a bad faith attempt to give cover to GA senators Perdue and Loeffler, who can now appear to support $2,000 stimulus checks without the possibility of that actually occurring.

I’m going to briefly explain why Section 230 isn’t going anywhere.

Prior to 230’s enactment there was a lot of uncertainty about secondary liability for websites–are they publishers? Or are they like public utilities? The answer in early court cases relied on distinctions between the degree of involvement of the site operator in content moderation, distinctions that courts were clearly wary of making.

Section 230 was passed to make it easier on courts by dissolving the distinctions between service providers like Verizon and content deliverers like Facebook and Twitter. They’re all merely “online service providers,” not liable for what its users post (with some exceptions not worth getting into right now). You have a problem with something someone tweeted? Sue that person, not Twitter.

Emboldened by the ensuing certainty around secondary liability, the web flourished. Our economy is now heavily dependent on the web, and Section 230 deserves some credit for that.

Without Section 230, nearly every website on which content is published (where even mild moderation takes place) would overnight become secondarily liable for everything published there. Those sites would instantly become hair-trigger censors, deleting content and accounts that anyone deemed controversial.

This would be a monumental sea change in the law governing the internet, almost as if McConnell had tethered his stimulus check increase to a law dissolving the EPA. McConnell isn’t oblivious to the ripple effects repealing Section 230 would cause, he’s simply using it as a poison pill, knowing full well no one except Trump actually wants to repeal Section 230.

The big irony here is that for all his complaining about Section 230, Section 230 is why Trump’s worst social media content is permitted to exist at all. In Trump’s petty mind, he sees Section 230 as preventing him from using lawyers to threaten Facebook and Twitter to get what he wants. But repealing 230 would result in Facebook and Twitter becoming instantly far more risk averse and censor-heavy, and his content would suffer the axe more than most.

Envisioning an internet without Section 230 is largely academic, though, because it’s not going to be repealed. Everyone except Trump, and perhaps even Trump, understands this. But I doubt many voters do, which is why we’re being subjected to this moronic charade.

Understanding the clever politics of Chief Justice Roberts on Trump’s tax records

Scott Pilutik — Sat, 11 Jul 2020 21:22:25 +0000

Attorney Scott Pilutik wrestles with the news of the day, from a lawyerly perspective…

As a matter of judicial politics, Chief Justice John Roberts played the Presidential financial records cases masterfully, writing two 7-2 opinions that had the full buy-in of the court’s liberal wing. He easily disposed of the President’s preposterous claims as to the executive office’s inviolability, sparing the court the indignity of endorsing Trump’s shit show. Yet, by remanding with further instructions to the lower courts, he provided the President with the likely means to run out the clock between now and November. Roberts is having a very Marbury v Madison term, issuing opinions that simultaneously giveth and taketh away, while reasserting the court’s place in the Constitutional scheme.

Given his genuine concern over the court’s perceived legitimacy as the non-political branch of government, Roberts was not going to be remembered as the Justice who simply handed over Trump’s tax returns to Congress (the Mazars case). Congress will eventually get its hands on Trump’s financial records but Roberts gave himself a way to quietly leave the party before the serious fighting broke out.

Roberts’ solution in Mazars was to create a four-part test that must be satisfied before Congress can subpoena a President (any Congress and any President). For centuries US Presidents have wrestled with Congress over the scope of the latter’s oversight role but had never simply stonewalled as Trump has, they’ve always reached an accommodation.

Faced with this unique stalemate, Roberts proposed a four-part test that must be met before any Congressional subpoena to a President can be recognized as valid. The language of the test is uncontroversial and recognizable to most lawyers as being pieced together from other areas. In short, Congress must (1) show that the documents aren’t available via other means; (2) narrowly tailor the request; (3) show a valid legislative purpose; (4) account for burdens on the Presidency the subpoena will impose.

Put your feelings about Trump aside for the moment, and you’ll recognize the test as common sense. Trump and his attorneys spend a lot of time equating Congress legitimately exercising its oversight role to “Presidential harassment,” but it’s plausible to imagine a vindictive Congress actually harassing a President without any guard rails in place. So I’ve got no problem with the substance of Roberts’ test.

But then Roberts loses me because he simply declines to apply the test, as I think most judges would have done. He never quite says that the test hasn’t, in essence if not in form, been met, he merely promulgates it as the appropriate analytical framework from now on.

So let’s apply the test, looking at the Circuit court’s opinion below.

(1) There was no discussion below as to whether the sought-after documents are available via other means, likely because it seems plain on its face that the President’s personal accountants are the exclusive possessors of his financial records. Had Congress subpoenaed the President in his personal capacity, this prong would become applicable. Roberts could have taken judicial notice of the quite obvious fact that a subtenant seeking the President’s financial records is properly directed when it’s directed to the president’s accountants. Check.

(3) (I’m leaving prong #2 for last because it’s the stickiest) the Circuit Court, reviewing de novo, “conclude[d] that the public record reveals legitimate legislative pursuits, not an impermissible law-enforcement purpose, behind the Committee’s subpoena.” Check.

(4) Similar to the first prong, the Circuit Court noted that Trump’s attorneys had implicitly accepted that Mazar‘s compliance with the subpoena did not “risk[] unconstitutionally burdening the President’s core duties.” Check.

(2) As to the scope of Congressional authority conduct investigations, authority that is “inherent in the legislative process,” the Circuit Court defined Congress’s power as “broad.” However, there was little discussion by the Circuit Court as to the particular subpoeana requests, which were in fact broad, covering practically all financial statements, including audits, supporting documents, and communications, prepared by Mazars for all Trump entities (except his campaign) from 2011-2018.

Roberts’ introduction of a “narrowly tailored” requirement is in tension with centuries of precedent establishing Congress’s “broad” authority to conduct investigations. Roberts expresses fears of a “limitless subpoena power” that would allow Congress to “aggrandize itself at the President’s expense.”

Roberts’ concerns are fair to a point, failing to mention that members of Congress are up for election every two and six years, and failing to mention the ways in which Congress’s concerns here are manifestly borne out by the voluminous record of Trump’s malfeasance.

Ultimately, all the factual ingredients were there in the record for Roberts to draw a line between Congress’s authority and his narrowly tailored requirement, but he ventures no further than declaring the line’s existence for us to now contend with. Some deem this Solomonic by Roberts, some cowardly, and while I respect the reasons why he stopped short I’m more inclined to think this was more of the latter.

How Walter Sobchak would react to the judge’s order holding up Mary Trump’s book

Scott Pilutik — Tue, 30 Jun 2020 18:55:25 +0000

Attorney Scott Pilutik wrestles with the news of the day, from a lawyerly perspective…

I mentioned the other day how the Queens County Surrogate Court is the wrong place to ask that a book not be published. Today Robert Trump evidently found the right place — the Dutchess County Supreme Court — to get his injunction against Mary Trump’s forthcoming tell-all about the Trump family.

Here’s the judge’s ruling granting an order to show cause that temporarily holds up the book publication.

Had Judge Hal B. Greenwald ever watched The Big Lebowski he’d know that “the Supreme Court has roundly rejected prior restraint,” as Walter Sobchak accurately noted. Judge Greenwald’s three-page order contains no legal analysis and appears blithely unaware of the existence of prior restraint. He merely calendars the case for July 10. I imagine before then Simon & Schuster and Mary Trump will be able to find an appellate court only too happy to light Judge Greenwald up.

UPDATE: In fact, both Mary Trump and Simon & Schuster already have entered their notices of appeal, blasting the judge’s ruling as an “unconstitutional prior restraint” under the First Amendment and New York State constitution.

Florida firing the architect of its COVID-19 dashboard reflects Red State data manipulation

Scott Pilutik — Wed, 24 Jun 2020 15:11:58 +0000

Attorney Scott Pilutik wrestles with the news of the day, from a lawyerly perspective…

A few places have already reported on Florida’s firing in late May of Rebekah Jones (@GeoRebekah), a scientist at the Florida Department of Health and the architect of Florida’s online COVID-19 dashboard. But her story needs amplification because it’s indicative of the data manipulation that’s happening in red states everywhere, and it all adds up to a gross, and possibly even criminal abuse of power — less for her firing than the reasons for it and what they’ve done since she left.

Florida fired Jones and immediately put a cap on the data that the dashboard (similar to Johns Hopkins national/int’l dashboard), claiming that the underlying data was “provisional” and won’t be available until May 2021.

DeSantis said that Jones had claimed to have been “tired and needed a break” as the reason for her dismissal. But days later, DeSantis claimed that Jones was fired for “repeated insubordination.”

Jones claimed that she was asked to manipulate the data to mislead the public with respect to the reopening of rural counties. She also claimed that Florida changed the formula for calculating COVID-19 positivity rate to better align with what DeSantis was saying publicly.

Scott Pritchard, a FL official at DOH, told Jones in an email that “[t]he whole site needs to come down. It literally has all the data files.”

Out of a job and on her own, Jones then recreated the dashboard. But the reason I’m posting about Jones right now is to bring attention to her words from yesterday about Florida’s ongoing war against numbers and reality:

BREAKING: 1 OF 3: Florida announced yesterday they’re not counting the ICU bed availability anymore, a key element in keeping things open, so the state can proceed to the next phase by July 4.
BREAKING 2 OF 3 I have multiple sources at DOH who have just told me they have been instructed this week to change the numbers and begin slowly deleting deaths and cases so it looks like Florida is improving next week in the leadup to July 4, like they’ve “made it over the hump.”
BREAKING 3 OF 3 I’ve independently verified they’ve deleted at least 1,200 cases in the last week.They’re only reporting all these cases now so they can restrict reporting next week to make everyone think it’s over. I’ve had two DOH employees in different offices confirm.

Also, regarding this story: Prosecutor to tell Congress of pressure from ‘highest levels’ of Justice Dept. to cut Roger Stone ‘a break’

Two US prosecutors will testify today to the unprecedented politicization of the DOJ under Bill Barr. Aaron Zelinsky’s prepared remarks are thoroughly damning, recounting mostly Barr’s interference with respect to the Roger Stone sentencing; how his superiors told him in no uncertain terms to go easy on Stone due to his connection to the president.

Another federal prosecutor, John Elias, will testify that Barr ordered the investigation of ten marijuana company mergers not because of any suspected antitrust issue but because Barr doesn’t like marijuana.

There’s no doubt Trump views COVID testing not as a solution but as a political problem

Scott Pilutik — Tue, 23 Jun 2020 17:09:47 +0000

Attorney Scott Pilutik wrestles with the news of the day, from a lawyerly perspective…

Trump’s repeated insistence that “[w]ith smaller testing we would show fewer cases!” is like a psychological test for dissociative disorder, identifying one’s willingness to believe that problems can be solved by declining to acknowledge their existence.

I get the perverse appeal of willful ignorance, because it is literally true that we would “show” fewer cases if we stopped trying to find them. But not only would cases exist notwithstanding statistical measures of them, given the contagious nature of this virus less testing would amount to more cases because fewer asymptomatic (or pre-symptomatic) carriers would know to quarantine themselves.

The White House spent much of yesterday nervously telling everyone that Trump’s stated push to “slow down” testing was a “joke,” a term the White House designates every grossly negligent Trump assertion after it polls badly, but there’s no doubt that Trump views testing not as a solution but as a political problem. He’s the king who kills the messenger bringing bad news — to date about 120,000 messengers.

Trump’s point about testing isn’t some sophisticated counter-intuitive take on the nature of statistics of the sort that Malcolm Gladwell might try to spin, he just wants everyone to stop believing that the virus exists, preferably before November. But with red states following his lead and abdicating responsibility themselves, cases will rise, not fall, whether we count them or not.

Mike Pence recently triumphantly announced that we’re “winning the fight against the invisible enemy,” which is obviously the opposite of accurate, but Pence is only halfway to where Trump is ready to go, which is to gaslight us into thinking that we’ve imagined the whole thing.

That we’re living in two wholly distinct countries has never been so evident, but that factionalization predates Trump, and I sometimes think that much of this would have gone badly under any President because American is “too broken” as Michelle Goldberg today put it.

But surely the CDC wouldn’t have been as decimated, marginalized, and disregarded as it has. Surely no other president would advance a “masks are for pussies” policy agenda. Surely we’d at least try to eliminate the virus by whatever means we had at our disposal, knowing that we’d either pay now or pay later.

Trump just now tweeted “We did a great job on CoronaVirus…” — past tense. See? It’s over:

We did a great job on CoronaVirus, including the very early ban on China, Ventilator production, and Testing, which is by far the most, and best, in the World. We saved millions of U.S. lives.! Yet the Fake News refuses to acknowledge this in a positive way. But they do give….
….Dr. Anthony Fauci, who is with us in all ways, a very high 72% Approval Rating. So, if he is in charge along with V.P. etc., and with us doing all of these really good things, why doesn’t the Lamestream Media treat us as they should? Answer: Because they are Fake News!

See how he’s sleazily using and leveraging Fauci as cover? Fauci pointedly disagrees with Trump on a number of substantive fronts, and Trump clearly doesn’t listen to Fauci. But Trump just lumped them all together “in all ways.”

Fauci would better serve the mission of his role by leaving it so as not to continue providing Trump political cover.

Berman only DOJ figure with weight to investigate Trump, so Barr wants him gone

Scott Pilutik — Sat, 20 Jun 2020 17:14:49 +0000

Attorney Scott Pilutik wrestles with the news of the day, from a lawyerly perspective…

[Regarding this story: ‘I have not resigned’: Manhattan U.S. Attorney Geoffrey Berman fires back at Barr, who says he’s leaving]

High drama. Barr hoped to bury this on a Friday night by announcing Geoffrey Berman’s departure by press release without bothering to check with Berman, who now says he’s not leaving until his replacement is confirmed by the Senate.

Berman is the only DOJ figure remaining with the weight to investigate Trump friends and family, one of them being Rudy Giuliani, and that’s why Barr wants him gone. With November approaching the Berman-led SDNY represents a persistent threat to drop shoes.

For Barr this isn’t about Berman personally, it’s about the investigations Berman is overseeing, else Barr could have announced that Berman was being replaced by someone already in the SDNY. Barr’s press release didn’t cite any reason for Berman’s “departure.”

The problem for Barr is that it appears to be the case that he can’t fire Berman, only Trump can, because Berman was a judicial appointment. Which is maybe why Berman is standing his ground.

From 2018: With No Nomination From Trump, Judges Choose U.S. Attorney for Manhattan]

Barr’s intent here is the same as with Flynn — take the bullet for Trump so Trump doesn’t have to pardon Flynn… and doesn’t have to replace Berman whose office is investigating him.

I’m leaning toward speculating that this is about a particular threat to Trump within the SDNY as opposed to the generalized threat the SDNY has always posed to Trump, else perhaps Berman would be more willing to step aside. Barr would have been better off leaving Berman alone if there wasn’t a particular threat coming into view. He even tried to promote Berman into a political office to get him out of there.

Jay Clayton’s history defending Deutsche Bank would make him, in one sense, the ideal person to come in and kill any Deutsche Bank-related threat (and a threat from Deutsche is very plausible), except that Clayton would, in many scenarios, need to recuse himself with respect to any Deutsche-related prosecution.

So Giuliani seems the most obvious SDNY target, if Barr is indeed reacting to a perceived threat.

It’s also easier to speculate about Barr and Trump’s bad faith here (besides their streak of bad faith, that is) because Barr invited skepticism by lying in a press release about Berman stepping down. In all likelihood they’ll eventually pry Berman out anyway, but concocting an obvious lie threats to drag Congress in.

Trump and Xi’s concentration camps: When a quid pro quo is the least horrific explanation

Scott Pilutik — Fri, 19 Jun 2020 16:17:13 +0000

Attorney Scott Pilutik wrestles with the news of the day, from a lawyerly perspective…

[Regarding this story: Don’t Buy John Bolton’s Book. But Don’t Ignore Its Revelations]

Most of the reporting on John Bolton’s telling of the exchange between Trump and Chinese President Xi has focused on Trump asking Xi to help him get reelected, which was essentially the same thing for which he was impeached and which formed the basis for the investigation that led to him firing the investigators.

Whether or not a quid pro quo is evident to the satisfaction of criminal law or impeachment standards, the pattern is amply demonstrated to an inarguable dead end: Trump is willing — eager even — to sell out the country’s foreign policy interests in exchange for the interference of foreign leaders in US elections on his behalf.

It’s perfectly understandable why that would be the focus, but lost in that framing are horrifying nuggets like this:

“Xi explained to Trump why he was basically building [Uighur] concentration camps in Xinjiang. According to our interpreter, Trump said that Xi should go ahead with building the camps, which he thought was exactly the right thing to do.”

I guess you could debate whether this adds up to a quid pro quo — withholding criticism of China’s concentration camps in exchange for Xi’s help getting Trump reelected — or not, but it’s almost worse if the reality is that Trump didn’t make the connection and seek to leverage one for the other, because then it’s the case that he sees no problem with China’s concentration camps — it’s “exactly the right thing to do.”

And I get that Bolton has a questionable moral compass of his own, but to the extent there’s any question as to his accurate recounting, realize that while Trump and his supporters are calling Bolton bad names, some deserved, they aren’t actually challenging his allegations as false.

Judge calls Barr move to dismiss Flynn case ‘gross abuse of prosecutorial power’

Scott Pilutik — Wed, 10 Jun 2020 18:57:50 +0000

Attorney Scott Pilutik wrestles with the news of the day, from a lawyerly perspective…

Maybe you recall Bill Barr’s DOJ doing a 180-degree turn on the Michael Flynn prosecution, to which Flynn had already pleaded guilty, moving to dismiss its case entirely. The judge arched an eyebrow and then appointed a retired federal judge, John Gleeson, to make the argument that had been suddenly usurped by the collaboration between the DOJ and Flynn, namely the argument that the court shouldn’t dismiss the charges.

Judge Gleeson today filed an 82-page excoriation, laying waste to Barr’s corrupt stewardship of the DOJ.

The Department of Justice has a solemn responsibility to prosecute this case — like every other case — without fear or favor and, to quote the Department’s motto, solely ‘on behalf of justice.’ It has abdicated that responsibility through a gross abuse of prosecutorial power, attempting to provide special treatment to a favored friend and political ally of the President of the United States. It has treated the case like no other, and in doing so has undermined the public’s confidence in the rule of law.

Whether the court will grant the DOJ’s request and let Flynn off the hook is largely beside the point by now — the judge may have no realistic choice. The bigger issue needs to be what Barr has done to a government agency whose independence is a cornerstone of our conception of how our government is supposed to work.

In the earliest days of this administration Trump reached out to then head of SDNY Preet Bharara, at which contact Bharara flinched. Trump had no respect for the independence of the DOJ and Bharara was concerned about appearances — he may one day be called on to investigate Trump. A lot has happened at the DOJ since then, and pretty much all of it rancid and corrupt.

Another quote:

The Government’s ostensible grounds for seeking dismissal are conclusively disproven by its own briefs filed earlier in this very proceeding. They contradict and ignore this Court’s prior orders, which constitute law of the case. They are riddled with inexplicable and elementary errors of law and fact. And they depart from positions that the Government has taken in other cases.

‘Defund the police’ is not about eliminating law enforcement but imagining something new

Scott Pilutik — Mon, 08 Jun 2020 13:28:53 +0000

Attorney Scott Pilutik wrestles with the news of the day, from a lawyerly perspective…

[Regarding this story: Defund the police? Here’s what that really means]

Smart take on what “defund the police” actually means. It’s not about eliminating law enforcement but rather acknowledging how the criminal justice system has evolved to exacerbate problems instead of solve them when solving them should be the goal, and using this moment to imagine something new.

‘Imagining something new’ is the hardest part, of course, because the resistance to making these long-needed changes is so deeply entrenched. The problem is less institutional stasis than Audrey from Little Shop of Horror — police departments have been insatiably devouring money and spending it on military gear.

It hardly needs to be said who has borne the brunt of the militarization. You can point a finger at broken storefront windows and some looting to argue the necessity but I’m fairly certain that whatever that price tag turns out to be, it’ll be many zeros away from what we’ve increasingly spent to arm police for domestic war.

You might argue the chicken or the egg in this argument — don’t we invite war by preparing for it? — but financially speaking, the return on investment has been conspicuous by its absence. Police departments have been gearing up as if roughly half of its citizens are potential terrorists, and have convinced themselves of the need to use these tools to fix problems needing far more subtle answers.

Institutional stasis is only part of the reason for the thing that needs changing never actually changes, it’s mostly because rackets and industry monopolies develop and the mechanism to examine and question their rationality — politics — is at best broken and more often than not, right there in the tank (and, by design, politicians face fewer and fewer repercussions for even outright corruption).

The trend toward prison privatization is another example of a financial racket trumping rational criminal policy. A discussion on obstinate police unions goes a little bit beyond the point I’m making, but it’s sufficient to say that there are very good reasons the economic establishment has spent decades crushing all unions except the police unions — they’re the yin and yang of the same entrenchment coin.

Passing laws to spend money is easy. Turning the spigot off when everyone is making out is much harder will meet with loud resistance and dire predictions, just as was the case when stop-and-frisk was cancelled by the courts, which predictions fell flat.

Leave it to Trump to breathe life into the most anachronistic corner of the Constitution

Scott Pilutik — Fri, 05 Jun 2020 16:19:28 +0000

Attorney Scott Pilutik wrestles with the news of the day, from a lawyerly perspective…

[Regarding this story: DC mayor Muriel Bowser takes on Trump, sparks Third Amendment debate with call to remove troops from capital]

Leave it to Trump to breathe life into perhaps the most anachronistic corner of the Constitution.

The Third Amendment prohibits the government from forcing people to house soldiers in peacetime. There are no Third Amendment cases, period. It’s simply never come up, so I have no reliable way to analyze what might happen here if litigation ensues, and it suddenly seems like it might.

The facts are mostly straightforward: National guard troops are being housed in DC hotels and DC’s mayor wants them out, citing the Third Amendment, with the unique twist that DC is not a state, so it’s often the case that federal law fills in the gaps where state law might apply in an otherwise identical circumstance in, say, New York.

And we can already see that playing out during these protests, with Trump essentially acting as governor of DC, except that he controls the US military. There are also a number of odd federal/state distinctions inherent to the national guard not worth exploring here because so far as DC is concerned, they’re all federal.

Setting aside how the ever-peculiar nature of DC’s lack of statehood impacts the Third Amendment question, the originalists, I imagine, would argue that the hotels aren’t “homes” and that “consent” was given.

But when you consider how the other amendments, notably the second, have been consistently extended to modern times through generous interpretations, you might then argue that the Third Amendment stands for the more general proposition that the federal government cannot force the temporary housing of any occupying military unit. That is: it’s less about prohibiting the government from imposing on particular homeowners than it is about prohibiting the government from using the military to occupy sovereign jurisdictions.

By that interpretation, the Third Amendment works in conjunction with the Posse Comitatus Act (prohibiting the government from using the military to enforce domestic policies) and Insurrection Act (providing the opportunity for limited exceptions to the Posse Comitatus Act’s general prohibition against military involvement in domestic affairs) by prohibiting US military forces from occupying territory, as a military force (obviously distinguished from bases and camps), within the United States.

Actual language: “No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.”