Balkinization: The Timely Disposition of Certiorari Petitions

Comments:

Derelict, yes, but setting a hard and fast rule requiring a response could lead to a form of legal DOS attack on the Court. Maybe just a rule stating that petitions not responded to in some way within 6 months are to be considered rejected?

# posted by

Brett : 1:09 PM

I don't see what the Court would want to abandon this method of punting on the issue without addressing the cert petition.

Maybe Congress could do so?

# posted by

Bart DePalma : 1:19 PM

Is this a common problem, or is this case a one-off? If the latter, it sucks for those parties but doesn't otherwise seem to require a rule.

# posted by

Mark Field : 1:20 PM

"I don't see what the Court would want to abandon this method of punting on the issue without addressing the cert petition."

Normally they have no trouble rejecting cert. petitions without giving any explanation, it IS fairly anomalous for them to simply not respond at all. Maybe it just somehow fell through the cracks?

# posted by

Brett : 1:25 PM

Not that easily. No.

As I mentioned in an earlier thread, Bart and Brett, like most conservatives, either chronically faulty or dishonest. We should and can not deal with them otherwise until they make some overture to explain their demonstrably false/dishonest/ignorant statements.

In the recent thread they both made statements about the 'obvious' guilt of Hillary Clinton and the obvious 'whitewash' of that by the DOJ, media, etc. These charges were based on a reading of the statute in question which was plainly, and, considering it has been discussed here frequently, willfully ignorant or dishonestly obviating controlling SCOTUS authority on the topic. As I mentioned we live in a world where the palpably false conspiracy theory thinking of these kinds of people is recorded and therefore must be brought forward whenever they make claims until they come to terms with their own lemming leaps that demonstrate a change of heart in a manner adult and showing integrity. So, I submit, do not engage or recognize these trolls, other than to mock them, until the flatly demonstrate coming to terms with their ignorant, reckless, sloppy charges just previous.

Gorin is plain, the statute they invoke is constitutionally infirm unless an intent described in that case is shown. If they have any shame or integrity let them admit their obvious error regarding that and describe how they are coming to terms with such error. Otherwise let's not acknowledge them save to mock them. Good faith, once sacrificed, must be earned back.

# posted by

Mista Whiskas : 2:13 PM

SCOTUSBlog has a "relist watch" and this was one of the hot button cases that have been relisted repeatedly. As a matter of good policy, it might be a good idea to quicken things. Or, to think more broadly, some other means to limit discretion.

There are ways to game the system, like when there were more mandatory appeals for them to take & they tossed out a "no substantial question" or some similar koan response. But, most systems could be gamed.

OTOH, how horrible division of the circuits really is on this question is open to debate. As is a delay in decision-making. Some cases over the years aren't decided for years. Delaying decision on a cert request for much of term only is so bad really.

# posted by

Joe : 2:22 PM

I'd complain about the threadjack, but I got caught by the thread timing out, too, with a response already composed.

I took the trouble to review Gorim. Doesn't do what you want, it had to do with "national defense related" info that wasn't classified. Hillary got in trouble with classified information.

The one argument that you might appeal to in Gorim hinged on inadequate notice that the law applied to the information in question. Classification makes that argument inapplicable to her case.

And this sets aside the other offenses, such as the failure to turn over work related communications in a timely manner when leaving government employment, giving access to classified information to people without relevant clearances, destruction of evidence under a preservation order.

# posted by

Brett : 2:31 PM

"Doesn't do what you want, it had to do with "national defense related" info that wasn't classified. Hillary got in trouble with classified information."

Brett, you wouldn't want someone to tell you about your engineering projects who wasn't versed in that, why do you do this kind of thing here? The law you want Hillary prosecuted under is what Gorin was talking about, and that scienter is to be read into prosecutions that don't want to court a finding of its constitutional infirmity, regardless of 'classified' (which is not mentioned in the statute at all). You literally don't know what you're talking about, so why not stop instead of doubling, tripling, quadrupling, etc., down? I mean, you just admitted you *just* read the controlling SCOTUS precedent years after your many hyperbolic, confident assertions of guilt. You should be ashamed of your recklessness here.

# posted by

Mista Whiskas : 3:23 PM

And btw, this is no 'threadjack.' If you can't show even the most elementary levels of intellectual honesty and care then you should be called out and mocked in every other contention you make. There is no other way to deal paranoid conspiracy extremists or dishonest propagandists.

# posted by

Mista Whiskas : 3:27 PM

Let's reflect on where Brett (and many conservatives) are and have been, before we even think of engaging them in anything like a serious or honest discussion.

Brett here admits that he *just read* the SCOTUS decision that is *controlling* on the Hillary case that he has so many, many times confidently opined on. What incredible recklessness (at best!) this is! It's as if someone who for *years* argued that Trump was clinically a narcissist admitted they had *just* read the DSM entry on that. This is incredibly reckless.

What makes this worse is that *we have brought up the Gorin decision in relation to Brett's reckless, paranoid conspiracy theory driven assertions at least half a dozen times here.* He never looked into it until now! He just kept reading Fox, or Alex Jones or whatever he does for 'information.' Amazing.

And this guy wants to argue that the journalists, academics, etc., who disagree with him are clearly biased and part of a conspiracy.

In-freaking-credible.

# posted by

Mista Whiskas : 3:32 PM

Again,

https://warontherocks.com/2016/07/why-intent-not-gross-negligence-is-the-standard-in-clinton-case/

# posted by

Mista Whiskas : 3:35 PM

Can we expect that SPAM and Brett will, lemming-like, follow their leader on his recent "treasonous" charges that his accommodating AG Billy Barr-nothing-Trump-demands plans to investigate? Did Barr, before his nomination, engage with Trump's personal counsel that might have led to Barr's pre-nomination OpEd and 19 page "unsolicited" memo that got Trump's attention?

# posted by

Shag from Brookline : 3:39 PM

Mr. W: Brett, you wouldn't want someone to tell you about your engineering projects who wasn't versed in that, why do you do this kind of thing here? The law you want Hillary prosecuted under is what Gorin was talking about...

Our resident engineer has the benefit of actually reading the opinion, which you either have not or are intentionally misrepresenting.

The government accused Gorin of illegally delivering information "connected with or related to the national defense" to a foreign power.

Gorin very reasonably argued the term "as connected with or related to the national defense" was unconstitutionally vague.

The Court held that the statute's requirement the government also prove "intent or reason to believe that the information to be obtained is to be used to the injury of the United States, or to the advantage of any foreign nation" cured any vagueness problem.

The Gorin court NOWHERE held that Due Process requires the Government prove intent in Espionage Act crimes as you have erroneously suggested.

The Espionage Act provision prohibiting gross negligence in the misstorage of classified information is not at all vague and does not require proof of intent to cure that problem.

# posted by

Bart DePalma : 6:44 PM

Mista Whiskas -

There are many people who read this blog and comment section but seldom comment. You do not speak for the general readership, only yourself. You have no right to declare what "we" should or shouldn't do.

While I rarely agree with Bart and Brett, their comments are always interesting and worth reading. Your current tirade against them is not.

# posted by

Salemicus : 6:46 PM

Shag:

I wish the Donald would stop misusing the term "treason," which is providing aid and comfort to an enemy of the United States. He can properly use the term "spying," if conspiracy to commit honest services fraud and perjury is too much of a mouthful.

What is law enforcement investigating a political opponent without evidence of a crime if not spying?

Democrats used to get upset when Hoover used to do this sort of thing against their antiwar and civil rights supporters. Now it is part of their political weaponry.

God speed, Mr Barr.

# posted by

Bart DePalma : 6:52 PM

Perhaps SPAM should reflect on his claims during his guidance of the Cruz Canadacy, repeated over and over and over, that Trump was a fascist. Now, SPAM is in obscene lockstep with Trump. Consider his manipulations of his cabinet and various agencies to put in positions of power "acting" toadies. Barr surrendered any "innocence " he might have had with his evidence-less decision to suggest possibly spying BEFORE releasing the Mueller Report. Barr is trying to bar charges against Trump, perhaps per a bargain Barr made to get the job after rehearsals with an OpEd and his 19 page unsolicited memo. Trump has been comforting America's enemies from his campaign into his presidency. Consider the dictators he admires. Does that make Trump a fascist, or worse, a traitor?

# posted by

Shag from Brookline : 7:40 PM

Salemicus, don't be silly, of course when I say 'we' *should* not entertain bad faith propagandists given to, at best, willful ignorance I am not trying to order you or anyone else to do anything. It's meant to persuade or urge, which is of course the natural meaning of should. You're free to entertain and even find 'interesting' such propagandist twaddle if you like (and judging by this silly comment of yours your interest is understandable).

# posted by

Mista Whiskas : 8:15 PM

Suddenly Bart discovers key SCOTUS precedent on what he subsequently boldly asserted without taking into account. This man, and the movement he exemplifies, knows no shame.

And of course he's demonstrably wrong. Gorin plainly states that the Espionage Act provision at issue there was saved from being unconstitutional vagueness because it "requires those prosecuted to have acted in bad faith. The sanctions apply only when scienter is established." Naturally the implication is that provisions that do not have the same scienter would be of dubious constitutionality. This is why, as Comey and scholars pointed out, there have been no prosecutions under the provision Bart alleged Clinton violated without such scienter since Gorin. Therefore when Bart, and the conservative 'press' from which he gets his consistently unreliable evidence and sloppily reasoned conclusions from, alleged an 'a ha' conspiracy moment based on the revelation that DOJ prosecutors told investigators they would not prosecute under a mens rea different than that pointed to in Gorin, they were making yet another sloppily reasoned, ignorant nothingburger of a conspiracy.

# posted by

Mista Whiskas : 8:28 PM

"What is law enforcement investigating a political opponent without evidence of a crime if not spying?"

When a person hires proven foreign agents of powers connected to efforts to interfere in our elections and policy suggesting law enforcement turn a blind eye approaches a terrible apathy about one's country at best, treason at worst.

Let's all remember that those screaming about the weaponization of law enforcement against political opponents were, and still are, yelling 'lock her up!' These people lack all self awareness and/or principle.

# posted by

Mista Whiskas : 8:33 PM

Shag:

I don't care whether Trump is Lucifer on Earth. The government weaponizing law enforcement against political opponents, regardless of who they are, is both malum in se as well as a clear and present danger to our Republic.

We already have stacks of testimony and documentary evidence that a small cluster of selected Justice and FBI bureaucrats worked on both the whitewashing of the Clinton crimes and the "investigation" of the Trump campaign without any evidence whatsoever of the false pretext and slander that the campaign conspired with Russia to commit the crime of hacking into the Dem computers. There is also ample evidence they did so out of person and partisan hatred of Trump.

Legally, I would have preferred Trump to order Sessions to appoint a special prosecutor to investigate this weponsization months ago when this evidence was entering the public domain. Politically, I understand Trump waiting until the release of the Mueller report to deny the Democrats the opportunity to scream "obstruction of Justice" against the Muller investigation.

God speed, Mr. Barr.

# posted by

Bart DePalma : 8:38 PM

Mr. W: When a person hires proven foreign agents of powers connected to efforts to interfere in our elections and policy suggesting law enforcement turn a blind eye approaches a terrible apathy about one's country at best, treason at worst.

Never happened.

The false charge of treason is a blood libel.

Long past time to shine a light on the corruption inside and outside of the government responsible.

# posted by

Bart DePalma : 8:42 PM

A GM thread would not be a GM thread with an extended non-germane subplot.

At some point, maybe, it's a lost cause?

# posted by

Joe : 8:55 PM

"Clinton crimes"? "Blood libel"? Wow, Bart is way way out there.

Look, Hillary Clinton's email server was inexcusable and a real story. But-- without opining whether or not it was criminal in some sense of the word-- it wasn't some horrible crime, given that it was basically what lots of folks in Washington did. We all chafe at information security requirements. Heck, I've had clients and co-counsels who hated them. Compliance makes communication more difficult, so people try to circumvent them. Plus, Hillary, honestly, probably didn't want Republicans who vilified her to be subpoenaing her e-mails. None of that was particularly lovely, but it wasn't some awful crime either.

As for "treason". No, Trump has not committed treason. I am of the opinion that we really shouldn't throw that word around, and that's one of the reasons that the framers, whose work was so deficient in so many other areas, were smart to put such a narrow definition of it in the Constitution. It's levying war against the United States, or adhering to a declared enemy. That's it. So yes, throwing the word "treason" around because government officials got too close to Russia is wrong. We are not at war with Russia, and calling people you disagree with "traitors" is straight out of the playbook of Joe McCarthy. (On the other hand, I get the feeling Bart likes the playbook of Joe McCarthy, so long as he is calling the plays.)

But it isn't a blood libel either. The Trump people did get way too close to Russia. And Russia, while not an enemy, is a country that engages in plenty of espionage against us, and therefore there are good reasons to avoid getting too close to them. This isn't "treason", but you know darn well what people actually mean when they say that. They mean they don't want people getting too close to a country that they consider a threat. Personally, I don't think Russia is nearly the threat people say it is. But that's a matter of real debate.

# posted by

Dilan : 9:22 PM

Trump has found his lackey in AG Barr, who is obviously not an Elliot Richardson. Barr is a toady for Trump. SPAM seems to go for toadies and Lucifers. What's SPAM have to lose. But at least the world will be safe that he won't be passing on the genes he has displayed at this Blog. Sessions had at least half a pair, though he had memory problems in not recalling his contacts with Russians during the campaign. SPAM has claimed his chops as an intelligence officer in the military. I imagine what he encountered as such may have trained him to be a DUI defense counsel but surely he had no comparable experiences to those in the various intelligence agencies protecting America. So we can expect SPAM to continue his lemming-like swallowing his leader.

# posted by

Shag from Brookline : 9:25 PM

"blood libel."

Of course he uses such hyperbolic, offensive language (no doubt Salemicus finds that 'interesting'). He has to distract because on the facts he's upended: Manafort, Flynn, Gates, etc.. actually admitted (though belatedly) they were actual foriegn agents.

# posted by

Mista Whiskas : 10:10 PM

As to the OP, what provision of Article III makes SCOTUS's discretionary here? It says there are certain areas of original jurisdiction, but, unless I'm missing something (which could be as I've not focused on the provision too much) it doesn't seem to me to say that Congress couldn't add to that...

# posted by

Mista Whiskas : 6:01 AM

Congress by statute can require them to decide more cases and even today there are certain voting cases that aren't discretionary.

Early on, by statute, they took a smaller range of cases but if a case fell within it, they decided it. In the process, they decided some fairly petty disputes.

# posted by

Joe : 7:53 AM

While Congress can direct the Court to take a case, what the Court does with the case falls under it's judicial power. So Congress can't by doing so rule out their just refusing to decide it. As Rush (The band) famously said, "If you choose not to decide
You still have made a choice"

I certainly agree that it was irresponsible of them to not at least respond to the petition for certiorari. Usually they'd at least reject the petition without comment, and you'd anyway know where you stood.

# posted by

Brett : 8:25 AM

If SCOTUS were required to take on more cases, how would the Justices have time to engage with their "elite" groups at dinners, think tanks, etc? Perhaps that might be a good thing. Of course it might diminish "celebrity" status for the Justices. And that might be a good thing. Consider the "free" time the Justices have with the cert procedure and taking 75 cases annually. More cases might lead to shorter opinions. And that might be a good thing. Congress, the ball is in your "court."

# posted by

Shag from Brookline : 8:47 AM

Dilan: Hillary Clinton's email server was inexcusable and a real story. But-- without opining whether or not it was criminal in some sense of the word-- it wasn't some horrible crime, given that it was basically what lots of folks in Washington did.

Who else was conducting classified business, often eyes only top secret, on their unsecured email? Military members often go to prison for far, far less. I guarantee our enemies were reading those emails, especially when Clinton travelled overseas.

As for "treason". No, Trump has not committed treason. I am of the opinion that we really shouldn't throw that word around, and that's one of the reasons that the framers, whose work was so deficient in so many other areas, were smart to put such a narrow definition of it in the Constitution...But it isn't a blood libel either.

The reason patriots like the Founders featured treason in the Constitution is they considered it the worst of the malum in se crimes. See Benedict Arnold. They also would have considered defaming someone as a traitor to be the worst form of libel.

# posted by

Bart DePalma : 8:55 AM

SPAM's closing at 8:55 AM:

"They [Founders] also would have considered defaming someone as a traitor to be the worst form of libel."

seems to suggest that the early Constitution addressed libel. Did it? Wasn't libel law addressed by the states, perhaps not in the same manner? How might the Founders have addressed SPAM's accusations of candidate Trump as a fascist?

# posted by

Shag from Brookline : 10:15 AM

The Roberts Courts as a whole has had shorter opinions (with exceptions) and lower courts with a lot more cases seem to be able to write rather long ones. As to free time, figure they still can fit things in, even if they had more cases. At least, Douglas managed to do it.

(the cases with full briefing and opinions etc. gets the most attention, but they also deal with various others, including cases they summarily handle pursuant to like major cases decided; so a 4A case might sweep away a few other cases with basically the same facts)

Overall, I don't know if they really need to take more cases. Maybe so. A more smooth handling of cases below probably is a bigger concern.

# posted by

Joe : 10:17 AM

There's been a conspicuous trend over the years of the Supreme court taking ever fewer petitions granted. The peak was in '81, with a total of about 215 cases. Lately they've been running to about a third of that.

The bottom chart is probably the most on point. The big drop was apparently that in the 1980s Congress changed the law on writs of appeal, allowing the Court to refuse most kinds. Which they took full advantage of.

# posted by

Brett : 10:49 AM

Douglas' day was more than a tad different from today's Internet digital high tech day. Back in the Fall of 1952 when I took ConLaw, it didn't have the popularity it has today, and that popularity is not just about Trump. Consider the role of the Federalist Society and GOP think tanks commented on in this Blog's current book Symposium. And I note the online Opinion section of the NYTimes seems dedicated to some of the woes of the Internet/digital age. Justices today are impacted by such. Perhaps in the current tech world the Justices do not need so many clerks, many of whom come from think tank "training" programs and the Federalist Society. Really, how productive is SCOTUS in this day and age of political polarization?

# posted by

Shag from Brookline : 10:57 AM

"Who else was conducting classified business, often eyes only top secret, on their unsecured email?"

https://www.politico.com/story/2016/09/colin-powell-defends-personal-email-227889

https://www.nbcnews.com/news/us-news/rice-aides-powell-also-got-classified-info-personal-emails-n511181

https://www.washingtonpost.com/politics/2019/03/21/their-emails-seven-members-trumps-team-have-used-unofficial-communications-tools/?utm_term=.b572871acd5a

"Military members often go to prison for far, far less."

"Members of the U.S. military have been charged with the negligent mishandling of classified material, but not under 793(f). Criminal charges in military court are brought under the Uniform Code of Military Justice, not the Espionage Act (although violations of the Espionage Act can be charged under Article 134 of the Uniform Code of Military Justice in military court). The military has extensive regulations that govern the handling of classified material and the failure to follow these regulations is a criminal offense. Negligence can result in a conviction under Article 92 because the test is whether the service member “knew or should have known” they were violating the regulation. But these rules do not apply to any civilian personnel at the State Department"

https://warontherocks.com/2016/07/why-intent-not-gross-negligence-is-the-standard-in-clinton-case/

"I guarantee our enemies were reading those emails"

Of course he cannot. Persons with some semblance of shame and integrity would say 'very likely.' Propagandists use hyperbole (again, no doubt Salemicus finds that kind of talk 'interesting').

# posted by

Mista Whiskas : 11:26 AM

"So Congress can't by doing so rule out their just refusing to decide it."

Has SCOTUS ever ignored a case to which jurisdiction was assigned to it?

# posted by

Mista Whiskas : 11:27 AM

"Congress by statute can require them to decide more cases and even today there are certain voting cases that aren't discretionary. "

Not really. You can note probable jurisdiction, but the Court can still (1) dismiss the appeal, (2) shunt you off to a special master, or (3) issue a one line disposition.

That's why Congress ultimately got rid of most of the appeals as of right. The Court controls its docket and won't really allow Congress to interfere with this.

# posted by

Dilan : 11:28 AM

"The Roberts Courts as a whole has had shorter opinions (with exceptions) and lower courts with a lot more cases seem to be able to write rather long ones. As to free time, figure they still can fit things in, even if they had more cases. At least, Douglas managed to do it."

Douglas managed to do it by being a lazy justice. Thankfully, everyone who has served on the Court since has treated their job duties a lot more seriously than he did. We get better-reasoned decisions as a result.

# posted by

Dilan : 11:30 AM

"Who else was conducting classified business, often eyes only top secret, on their unsecured email? Military members often go to prison for far, far less."

1. Hillary's immediate predecessors as Secretary of State did the same thing she did, effectively.

2. Hillary is not a member of the military. This is important. You can go to prison for a lot of things in the military. Heck, Hillary's husband could go to the brig for sleeping with Monica Lewinsky had he been in the military.

But, you see, politicians are civilians. They are not in the military. And civilians can certainly be prosecuted for mishandling classified information, but nonetheless, lots of people do it on a low level and do not get prosecuted.

# posted by

Dilan : 11:33 AM

Dilan: Hillary's immediate predecessors as Secretary of State did the same thing she did, effectively.

No previous Sec State perpetrated the same crimes as Clinton - effectively or otherwise.

Hillary is not a member of the military. This is important.

The Espionage Act is not part of the UCMJ and applies equally to both the military and civilians

Sec State consumes the same levels of intelligence product as the Joint Chiefs of Staff, far higher levels than your average military member doing time for violating the Espionage Act. If anything, Clinton should be held to a higher standard.

# posted by

Bart DePalma : 11:44 AM

"The Espionage Act is not part of the UCMJ and applies equally to both the military and civilians"

That doesn't mean it is enforced the same way. There are crimes that the military will prosecute to maintain discipline that civilian prosecutors will let slide.

Look, the bottom line is that you are pretending to be an idiot here, which is one of the worst forms of argumentation. You know damned well that information security isn't taken as seriously as it should be by people who are seeking convenience. There have been stories about President Trump failing to take it seriously because he wants to use his unsecure phone to tweet and to receive briefings in Mar-a-Lago. This is endemic in the private sector as well.

You MUST know this. Yet you are so dishonest in your bias against Hillary Clinton (a politician who I don't like very much either, but who deserves the same fairness as any other political figure) that you can't just admit that what she did was what a LOT of people do, which is take shortcuts she shouldn't have taken around information security restrictions. You can still criticize her for doing this. And, Bart, you actually should! Secretary of State is a VERY important position. They DO get lots of sensitive information about foreign governments and agents. So she was in the wrong.

But that isn't enough for you. You want to lock her up, because she's a political enemy.

# posted by

Dilan : 11:53 AM

"No previous Sec State perpetrated the same crimes as Clinton "

Of course Clinton has not been convicted, or even charged with perpetration of any crime, even though investigated by a lifelong GOP operative who used the investigation to make politically damaging comments outside of standard protocol about her.

However, previous SOSs have admitted or been indicated as engaging in behavior very similar, at the least, to Clinton's. These are just facts, as I've indicated.

"The Espionage Act is not part of the UCMJ and applies equally to both the military and civilians"

Lol! Indeed, the UCMJ requires *less* than the Espionage Act and *only* applies to military, the military cases you invoked generally fall under the former, not the latter, making them inapplicable. Sloppiness, or propaganda, you decide!

# posted by

Mista Whiskas : 12:07 PM

"You MUST know this. Yet you are so dishonest in your bias"

Dilan, meet Bart.

For years I tried in good faith to talk to and debate him, but my excerpt of your comments is the unfailing, never changing raison d'etre of Bart. I've given up, some people are determined to be wrong and in bad faith, I guess. Sadly it's true of a growing number of conservatives generally. It's the Limbaugh-if-ication of the movement.

# posted by

Mista Whiskas : 12:09 PM

Dilan: There are crimes that the military will prosecute to maintain discipline that civilian prosecutors will let slide.

No. The military also exercises a large degree of prosecutorial discretion at multiple levels from the commanders of the defendant troops (of which I was one) to the prosecutors.

The decision not to prosecute Clinton was not standard prosecutorial discretion based on mitigating circumstances. Instead, a very small group of handpicked FBI and Justice Department bureaucrats limited their review to one crime when Clinton committed several crimes and then rewrote the one crime to provide a pretext for their refusal to prosecute their boss's handpicked successor.

Miscarriages of justice like this and the Smollett dismissal are why folks not unreasonbly believe that our laws are only for the little people while the powerful and famous flout them at will.

# posted by

Bart DePalma : 12:09 PM

Bart, Jeff Sessions could have reopened the investigation of Hillary if there was anything there. So could Barr.

And as we have seen, career DoJ prosecutors don't automatically shield executive branch officials alleged to have engaged in wrongdoing.

If you are going to allege a massive obstruction of justice by DoJ prosecutors, you need a lot more evidence than just "I think Hillary committed a crime and she wasn't prosecuted for it".

# posted by

Dilan : 12:12 PM

"Yet you are so dishonest in your bias against Hillary Clinton (a politician who I don't like very much either, but who deserves the same fairness as any other political figure)"

This same guy is parroting the latest conservative line about 'weaponization of law enforcement' re: looking into Trump's foreign agents ties. There's no principle there, only dishonesty.

# posted by

Mista Whiskas : 12:14 PM

Not really. You can note probable jurisdiction, but the Court can still (1) dismiss the appeal, (2) shunt you off to a special master, or (3) issue a one line disposition.

Rick Hasen, an election law expert, has explained how mandatory appeals in voting rights cases have influenced them. Not sure how "special masters" are involved there (more a thing for border/water disputes), but yes, they can issue a one line disposition. I noted just that in an earlier comment. Still, even that over time mattered to some extent as compared to simply refusing cert.

That's why Congress ultimately got rid of most of the appeals as of right. The Court controls its docket and won't really allow Congress to interfere with this.

Congress still has discretion over formulating jurisdiction and what that entailed significantly changed over the years. The Judiciary Act of 1789, e.g., only gave them jurisdiction to a limited number of cases.

# posted by

Joe : 12:14 PM

BD: "No previous Sec State perpetrated the same crimes as Clinton "

Mr. W: Of course Clinton has not been convicted, or even charged with perpetration of any crime...

So, if I shoot you dead on the street, I have not committed a crime so long as I have not been indicted or convicted?

However, previous SOSs have admitted or been indicated as engaging in behavior very similar, at the least, to Clinton's.

Apart from Clinton, no Sec State in American history has violated the Espionage Act by illegally storing classified materials and providing it to uncleared persons. Period.

BD: "The Espionage Act is not part of the UCMJ and applies equally to both the military and civilians"

Mr. W: Lol! Indeed, the UCMJ requires *less* than the Espionage Act and *only* applies to military, the military cases you invoked generally fall under the former, not the latter, making them inapplicable. Sloppiness, or propaganda, you decide!

Stop making statements about things which you have no knowledge.

The military members to whom I refer were convicted for violating the Espionage Act. The UCMJ does not have a classified materials section.

UCMJ courts martial due process standards are actually higher than in a civilian court. Same rules of evidence and requirement of proof beyond a reasonable doubt, but the defendant can actually choose their type of jury - either officers or enlisted. A jury of trained and educated officers is actually far better for the defense than your average civilian jury.

# posted by

Bart DePalma : 12:22 PM

Joe:

1. The big issue in election law isn't the mandatory appeal, it's the direct appeal. In other words, because they go directly from a three judge district court to the SCOTUS, there has been no intermediate court to correct errors. In that situation, the Court has a very different role.

You can also see this in state courts. The Delaware Supreme Court decides lots of minor issues, because there is no intermediate appellate level there. It is the only error-corrector available.

When direct appeals were authorized in lots of cases, you will find lots of cases where the Court just dismissed the appeal or issued a one line affirmance. You had to get the Court to "note probable jurisdiction", which was basically adjudicated on the same grounds as a cert petition. So the results came out basically the same.

Special masters are most often used in cases that are subject to original Supreme Court jurisdiction. So, for instance, most disputes between states are theoretically adjudicated by the Court, but in practice are decided by a judge they appoint to decide the case.

2. LIMITS on jurisdiction are a different animal. There's no doubt that if Congress cuts jurisdiction in neutral ways (say, imposing an amount in controversy requirement or stripping SCOTUS review of divorce cases or similar), the Court would obey it. They might construe it narrowly to permit them to get involved in cases they really want to, but they would obey it. A recent example of this is the limits on habeas jurisdiction enacted in the 1990's and 2000's. The Court construed them as effective in most cases, and left themselves an out ("constitutional habeas") in cases they really wanted to take.

(I state the issue in that way because I don't believe the Court would accept limits on jurisdiction that were designed to make certain cases come out certain ways. For instance, I think the Court would find a way to strike down a statute that purported to prohibit court jurisdiction over petitions to review decisions upholding abortion restrictions.)

But that's all very different than mandatory appeals.

# posted by

Dilan : 12:24 PM

"When direct appeals were authorized in lots of cases"

I meant when MANDATORY appeals were authorized in lots of cases

# posted by

Dilan : 12:25 PM

Dilan:

Historically, when the reigns of power pass between parties, the incoming party has never prosecuted members of the outgoing party for crimes committed under the previous regime. The public excuse is the incoming POTUS does not want the appearance of a political prosecution or to have the prosecution distract from his agenda.

This is self-serving ruling class BULL SH_T.

If the incoming POTUS is worried about a perceived conflict of interest, delegate the prosecution decision to a special prosecutor.

# posted by

Bart DePalma : 12:30 PM

I disagree, Bart.

I look at countries in Latin America like Argentina and Peru where every previous President goes to jail as a very problematic precedent. It just turns everything into tit for tat. Indeed, I am practically alone among liberals in basically seeing Ford's pardon of Nixon as completely defensible.

I think it's a good idea to have a very high threshold before you throw politicians in prison. Because the temptation to go after political enemies, and to retaliate, is too great.

# posted by

Dilan : 12:36 PM

Dilan:

A criminal prosecution and conviction is only problematic when there is little to no evidence of crime and the motive is instead political.

Your Latin American analogy is precisely why Barr needs to appoint a special prosecutor for the perpetrators of the "Russia Collusion" witch hunt.

# posted by

Bart DePalma : 12:40 PM

"So, if I shoot you dead on the street, I have not committed a crime so long as I have not been indicted or convicted?"

Of course, because perhaps you did it in self defense or accident. Exactly the nuance you ignore in your motivated reasoning to weaponize law enforcement against your political enemies.

"Apart from Clinton, no Sec State in American history has violated the Espionage Act by illegally storing classified materials and providing it to uncleared persons."

A laughable goal shift. Expected, but funny still.

"The military members to whom I refer were convicted for violating the Espionage Act."

Name some. Just some, that are analogous.

"UCMJ courts martial due process standards are actually higher than in a civilian court"

Idiot, or dishonest, you decide (the point was that the military, under the UCMJ is subject to different standards re mens rea, here Bart shows he's just flinging stuff at the wall, hoping something sticks [Salemicus is no doubt 'interested' by this]).

# posted by

Mista Whiskas : 12:52 PM

Special masters are most often used in cases that are subject to original Supreme Court jurisdiction.

Yes. You brought them up and they don't really seem that relevant in this context.

As to my loose use of "mandatory," that is fine, but I don't want to miss the forest for the trees here. Be they important for full clarification.

The Congress is still specifically in that area giving the Supreme Court more responsibility that as a general rule is given lower courts. That is my wider point. The overall issue being them taking less cases. That category is an exception to a growing discretion over their docket.

Fair is fair. If my use of "mandatory" warrants comment, you said this:

The Court controls its docket and won't really allow Congress to interfere with this.

So, talking about the differences there is all well and good, but that's why I broadly spoke about how Congress can and has broadly over the years affected jurisdiction. That is "controlled its docket" is a powerful way.

I don't believe the Court would accept limits on jurisdiction that were designed to make certain cases come out certain ways.

That's fine too though what it means is unclear. See, e.g., BANK MARKAZI, AKA CENTRAL BANK OF IRAN v. PETERSON ET AL.

# posted by

Joe : 1:15 PM

Mr. W:

You are claiming the Obama administration conducted a criminal investigation of a political opponent during a political campaign without any evidence of a crime out of self defense or by accident?

This is pathetic, even by your extraordinarily low standards of reasoning.

I already slapped down the rest of your deflections on prior threads.

# posted by

Bart DePalma : 1:19 PM

What a pathetic inability to understand analogies! That conversation was about Hillary prosecutions, not Trump's! lol

What a dupe and dope!

# posted by

Mista Whiskas : 1:30 PM

Joe:

My basic feeling is that you can't really force SCOTUS to give plenary consideration to more cases. They will simply summarily dispose of them.

You can, however, get the Court to take fewer cases, with the caveat of "not when they REALLY want to get involved".

# posted by

Dilan : 2:18 PM

"They will simply summarily dispose of them."

Yes, that's my take on it, too. You can't effectively force the Supreme court to do work they don't want to do, they're an independent constitutional branch.

Mind you, Congress can create inferior courts by statute. They *could* create a court inferior only to the Supreme court, with some suitably non-snarky direction to "Send the cases you can't be bothered with, but which really ought to be resolved, to this court."

Call it the penultimate court of review, or some such.

# posted by

Brett : 2:26 PM

Of course, that could be taken as an alternate court packing scheme...

# posted by

Brett : 2:45 PM

Is there a short history available of the circumstances of the change to the cert procedure, back in the day when the Court was obliged to address all appeals? Back then did the Court not consider appeals as a practical matter? Back then would it have constituted "good behavior" for the Court to not to seriously address appeals it was required to take? Might that have been grounds for impeachment? Is "good behavior" in Article III comparable to Article II's "take care" clause?

{Sorry to be late as I was was attending the liberals - some progressives - lunch today.]

# posted by

Shag from Brookline : 4:36 PM

One of our rare occasions of agreement, Shag: Blowing off their work is not "good behavior".

# posted by

Brett : 6:38 PM

Mr. W: What a pathetic inability to understand analogies! That conversation was about Hillary prosecutions, not Trump's! lol

This sidestep does not improve your position.

Now you are claiming Clinton was acting in self defense or illegally stored over 1,000 emails with classified information by accident.

When in a hole, stop digging.

# posted by

Bart DePalma : 6:55 PM

Brett, I'm only asking in a historical context of when the Court was obliged to take all appeals. Now we might address Article II's "take care" clause, whether it relates to taking care of the president's personal business or the business of America. Trump can't rely upon "What's good for General Motors is good for America" as that was quite questionable. It should be noted that the Constitution does not provide in Article I for a comparable "take care" or "good behavior" clauses.

# posted by

Shag from Brookline : 7:38 PM

SPAM must be commenting from China based upon his response to Mr. W:

"When in a hole, stop digging."

# posted by

Shag from Brookline : 7:41 PM

Pushing back the decisions on a few cases is not really 'blowing off their work' probably. The justices are probably examining the briefs and so forth there. One or more might be even writing dissenting opinions or something if they decide not to take a case.

In the past, there was less paper (briefs etc.) than now. A lot less cases. Then, after the Civil War, they started to be overwhelmed (one cartoon of the times showed them overwhelmed by bags of cases etc.) I do know toward the end of the Marshall Court, a few cases were pushed back, since there was trouble reaching an agreement.

There were cases that took years to decide for whatever reason. It probably would make a good article. Like references to "technicalities" deciding criminal cases in the late 19th Century in one history of American law I read, the past probably will seem not to unfamiliar in certain respects.

# posted by

Joe : 7:49 PM

Justice John Paul Stevens wrote about "Deciding What to Decide: The Docket and the Rule of Four" [chapter in "Judges on Judging") and discussed how justices exercised discretionary jurisdiction after 1891. See here: https://azpdf.tips/judges-on-judging-views-from-the-bench-pdf-free.html

I have read various accounts of the early courts but the specific question wasn't something that I recall coming up specifically. But, perhaps, by looking simply at the brief records (court reporting was somewhat lacking early on as well) of certain opinions, not all cases were treated equally. If this was treating each case "seriously," perhaps is debatable in certain cases.

"Good behavior" would probably include some minimal doing of one's job & not properly handling appeals very well might raise due process concerns. But, it would have to be pretty shoddy to be so bad to threaten impeachment. A mechanism use sparingly as a whole.

# posted by

Joe : 8:19 PM

There have on occasion been cases where they blew off something on a level that I'd class as "not good behavior". Nearly 70 years when they refused without comment every last case where one of the parties raised the 2nd amendment as an issue, for instance.

This specific instance is probably some sort of oversight, though troubling.

# posted by

Brett : 8:21 PM

Joe, As usual I appreciate the history you have furnished. As to "good behavior," that's not a simple determination, including under the various versions of originalism. The discretion with the cert procedure would seem to suggest that violation of "good behavior" would be difficult to establish whether cert is granted, or not granted. Is it individual Justice or group "good behavior"?

Brett might check when "sentiment" for an individual 2nd A right strengthened, including the historic position of the NRA.

# posted by

Shag from Brookline : 9:00 PM

With respect to Brett's 2nd A "sentiment," he might check Sandy Levinson's early writings on the 2nd A as having become limited due to the stilled role of the "militia" having changed. Post-Heller/McDonald, there hasn't been significant cert granted on 2nd A cases. That may change soon, despite Scalia's dicta in Heller. Now we could talk about "good behavior" and the need for "good buys" with guns to protect us from "bad guys" with guns. Imagine if every man, woman and child (of an appropriate age) were toting AK 47s, in leading to 2nd A "good behavior."." Of course neither Heller nor McDonald defines "good behavior" under the 2nd A, other than perhaps by means of self-defense, a right of even "bad guys" with guns.

# posted by

Shag from Brookline : 9:15 PM

"Now you are claiming Clinton was acting in self defense or illegally stored over 1,000 emails with classified information by accident."

We're reaching black hole levels of density here.

For those following, Bart called Clinton a criminal, I pointed out she has not been convicted or even charged with any crime. He responded with something to the effect of 'if someone shoots someone in the middle of the street but is'nt charged/they've still committed a crime,' and I said not necessarily, for example it could have been in self defense.' The point of the analogy is that lacking the requisite men's rea even shooting someone in broad daylight in the street is not a crime, and Clinton's acts, however they appear in the 'public domain,' did not have the requisite men's rea per Gorin. Poor Bart and his usual inability to deal with analogies has been hunting the analogy taken literally, like when you pretend to throw a ball and the Labrador runs around the yard looking for it excitedly.

Truly modern day conservative extremism seems akin to brain damage.

# posted by

Mista Whiskas : 10:21 PM

Shag:

NYC went fascist and banned the transportation of firearms outside of the city, providing the Supremes with the opportunity to define the scope of the other half of the Second Amendment guarantee - the right to bear arms - and to determine the level of scrutiny to apply to blue state and megalopolis violations of the guarantee. FINALLY, the Supremes took the opportunity and granted cert. See New York State Rifle & Pistol Association v. New York City.

This case is tailor made for a Justice Brett Kavanaugh opinion.

# posted by

Bart DePalma : 10:34 PM

Mr. W:

Your third side step is unavailing as well.

If Clinton was merely negligent in shooting you down in the street, she would indeed be a criminal who committed negligent homicide, even if the Obama administration refused to indict and try her.

Have you hit water yet in your hole? I lost sight of you this afternoon.

# posted by

Bart DePalma : 10:40 PM

"These poll numbers are GREAT news for John McCain!!"
- Bart Depalma

Bart, you're the most dishonest fraud that I have ever encountered. Congrats!

# posted by

Bartbuster : 1:45 AM

"For those following, Bart called Clinton a criminal, I pointed out she has not been convicted or even charged with any crime."

Yes, that IS black hole levels of stupidity, on your part. You become a criminal by committing a crime, not by being convicted of it. You are a criminal at the moment the crime is committed.

All conviction does is legally entitle the government to treat you as a criminal. An important point, to be sure, but it doesn't actually change whether or not you committed a crime.

# posted by

Brett : 5:58 AM

The density!

You have to do more than commit a criminal act you have to have the requisite men's rea (the difference between murder and self defense) and the men's rea required by Gorin, which IS NOT NEGLIGENCE is not present for Clinton. For the millionth time!

# posted by

Mista Whiskas : 7:15 AM

"criminal noun

Definition of criminal (Entry 2 of 2)
1 : one who has committed a crime
2 : a person who has been convicted of a crime"

Gorin required that you have intent if there was some question whether the information in question was "related to national security". It's utterly inapplicable to classified information handled by somebody with a security clearance, where the relevant standard is strict liability, and you even have to sign a paper acknowledging that you know this.

It is public information that she grossly violated clauses 4 and 7. She both handed over access to her emails which included classified information to people without security clearances, AND failed to turn over all her classified communications on leaving her job as SOS. The latter she did only partially, and after her failure was exposed.

# posted by

Brett : 7:30 AM

Mr. W: the men's rea required by Gorin, which IS NOT NEGLIGENCE

Repeating your misrepresentation of Gorin is does not make it any less false.

Here is some homework. Read Title 18 of the US Code and list the crimes with a mens rea of criminal or gross negligence or which have strict liability without a requirement of mens rea.

For bonus points, choose any state criminal law and do the same thing.

Never mention Gorin again until you finish.

# posted by

Bart DePalma : 8:51 AM

Gee, I thought even anarcho-libertarians recognized the concept of presumption of innocence, especially when one has not been formally charged by authorities with committing a crime.

By the Bybee [expletives deleted], I'm confident that both SPAM and Brett recognize the racial implications of Heller/McDonald (each 5-4) decisions.

# posted by

Shag from Brookline : 9:05 AM

I have doubts that attorneys who practice more serious criminal defense law than DUI would be influenced by SPAM's views.

# posted by

Shag from Brookline : 9:08 AM

I both understand the presumption of innocence, AND that it is rebuttable, even when the authorities happen to corruptly refuse to prosecute a President's crony.

You'll have to explain those "racial implications", I'm not very good at picking up that sort of thing, as I usually don't think in racial terms.

# posted by

Brett : 9:15 AM

"Definition of criminal (Entry 2 of 2)
1 : one who has committed a crime"

This helps none, because in the common law tradition a crime (usually) requires a mens rea in order for it to be committed.

According to Gorin the requisite mens rea here " it "requires those prosecuted to have acted in bad faith," with an "intent or reason to believe the information...is to be used to the injury of the United States."

It doesn't matter that gross negligence can be a criminal mens rea in other places and for other offenses. Per Gorin, dealing with the predecessor of the act Clinton is alleged to have committed, the potential of vagueness in the language 'national defense' is cured by a mens rea requirement higher than that stated in the statute alleged to have been violated.

This is why Bart, Brett and other conservatives cannot point to cases directly analogous brought by the DOJ since Gorin and the understanding of it's ruling.

And this has been, all along, Comey's position, the standard DOJ position for decades. Thus when DOJ told investigators they would not prosecute on a bare gross negligence standard there's no indication of conspiracy, just the following of long standing policy.

This has been explained over and over and over to Bart and Brett. But in their sloppy reasoning and lust to weaponize law enforcement measures against their political opponents they continue to ignore and/or fail to understand it (and to comical results, see Bart's inability to get my analogy in anything other than a literal way). This is what both hacks and conspiracy theorists do though, I leave it to the reader to decide which applies best to whom here.

# posted by

Mista Whiskas : 9:31 AM

"I thought even anarcho-libertarians recognized the concept of presumption of innocence, especially when one has not been formally charged by authorities with committing a crime."

It's even worse, but par for the course, for Brett. He claims to decry government law enforcement overreach. According to reports our system of classification has become so broad that Clinton, or any government official, sending a widely publicly available NYT article on drone attacks would be an example of sending 'classified' material. This is of course ridiculously broad, there's no mala per se here, not even close. Brett's panting at wanting to see his political opponents jailed for this kind of thing is just another example of how hollow his stated principles appear.

# posted by

Mista Whiskas : 9:35 AM

Let's be clear, the interpretation of Gorin relied upon by Comey and the DOJ is standard and long standing.

For example, here is a summary from FIRE, the Foundation for Individual Rights in Education, hardly a left wing group, stating that what can be taken from Gorin is that "bad faith is necessary in order to convict those accused of violating...section 793 relating to “gathering, transmitting or losing defense information.” Is FIRE in on the conspiracy?
https://www.thefire.org/gorin-v-united-states/

Here is a statement from the syllabus to the case provided by Justia: "with the elements of scienter and bad faith which must be present, the sections are sufficiently definite to apprise the public of the activities they prohibit, and they accord with due process." Is Justia in on the conspiracy?
https://supreme.justia.com/cases/federal/us/312/19/

No, this is clearly how this precedent and it's implications have been understood for decades before Clinton's 'scandal' became an issue. The ignorance of it, continued, signals a lack of seriousness or integrity on those who engage in it.

# posted by

Mista Whiskas : 9:48 AM

Has Brett already forgotten his childhood days in Northern Michigus when he found it difficult competing with Mexican farm workers in pulling red radishes that eventually led him his current red state? Both the originalism and Federalist Society movements that began in the 1970s were reactions to the judicial activism of primarily the Warren Court, whose foundation decision was Brown v. Bd. of Educ. (1954, Unanimous), that started the civil rights movement leading to the Civil Rights Acts of the mid 1960s, with conservatives/libertarians reacting with Nixon's Southern Strategy in the 1968 campaign that extended to the 1980 Reagan campaign and revived by Trump in 2016. It should be fairly simple for a simple engineer to connect the dots.

As to Brett's " ... I usually don't think in racial terms." who can forget Brett's objections to the U of TX program for minorities, particularly his concern that Asian-Americans suffered from the U of TX treatment of African-Americans, with Brett pointing out that he was the father of a a mixed-race Asian-American child. It was pointed out to Brett that two major Asian-American groups had no problems with the U of TX program. Brett is not very subtle, including his suggestions of his right to an arsenal of arms to exercise his 2nd A rights.

# posted by

Shag from Brookline : 9:49 AM

"According to Gorin the requisite mens rea here " it "requires those prosecuted to have acted in bad faith," with an "intent or reason to believe the information...is to be used to the injury of the United States." "

Good God! You rightly complained that I hadn't read Gorin, so I did go and read it. I swear, though, you appear to have gotten YOUR understanding of it second-hand, and never bothered to read the actual decision yourself.

The reason Gorin held that intent required was that the guy was not under adequate notice as to what information was covered. Classification provides that notice! There's no vagueness to appeal to when a document has a classification heading, and/or (c) on it's paragraphs. You're being directly TOLD the information is national defense related.

So Hillary has no refuge in Gorin.

# posted by

Brett : 9:53 AM

I wouldn't call Brett, or many conservatives like him, 'racist' (I think that charge is overused diluting its seriousness). I'd use the term 'racially obtuse,' being obtuse to racial patterns of inequality and challenge that don't directly impact him or his loved ones. To me the worst example of this was when he said he'd support a law that was facially neutral but which factually only *and every* minority in a jurisdiction.

# posted by

Mista Whiskas : 9:53 AM

"The reason Gorin held that intent required was that the guy was not under adequate notice as to what information was covered."

The issue in Gorin was the idea of what information is or not involves 'the national security' is inherently fraught with vagueness, but the court ruled that the mens rea required saved from constitutional infirmity the law in question.

"Classification provides that notice! "

I'm interested in seeing the legal authority for that claim.

# posted by

Mista Whiskas : 9:58 AM

Shag: Gee, I thought even anarcho-libertarians recognized the concept of presumption of innocence, especially when one has not been formally charged by authorities with committing a crime.

We instruct our juries to assume a defendant is innocent until the government offers sufficient evidence of guilt. No one else is under that requirement. Everyone else is permitted to look at the publicly available evidence and make up their own minds.

# posted by

Bart DePalma : 10:07 AM

Mr. W: Let's be clear, the interpretation of Gorin relied upon by Comey and the DOJ is standard and long standing.

Adding another falsehood and a citation of authority error does not help your cause. DOJ also refused to enforce the Second Amendment for decades.

Name a single provision of the US Code requiring a mens rea of gross or criminal negligence which the courts have cited Gorin to find unconstitutional.

# posted by

Bart DePalma : 10:13 AM

Mr. W: I'm interested in seeing the legal authority for that claim.

Try reading the damned Gorin opinion. Reading is fundamental.

# posted by

Bart DePalma : 10:14 AM

"To me the worst example of this was when he said he'd support a law that was facially neutral but which factually only *and every* minority in a jurisdiction."

I think that sentence is incomplete. Which factually, what? Are you referring to this comment thread?

# posted by

Brett : 10:38 AM

Query: Isn't the presumption of innocence applicable in non-jury court cases? Does SPAM when defending an alleged drunk in his local police court expect the benefit of the presumption? Or does SPAM plead out most of his defendant clients?

Yes, SPAM, reading is fundamental, but understanding is required. Like understanding in the time frame of 1791 the 2nd A's prefatory militia reference in conjunction with the 1787 Constitution's militia clauses.

# posted by

Shag from Brookline : 10:40 AM

Anyway, leaving on vacation shortly, please don't interpret any failure to respond to comments for the next few days to anything but my being busy driving and spelunking.

# posted by

Brett : 10:50 AM

"Name a single provision of the US Code requiring a mens rea of gross or criminal negligence which the courts have cited Gorin to find unconstitutional."

A silly demand, the question of a long standing policy is in this area,so the onus is on those who say it is not to produce examples of prosecutions brought under the relevant provision without the Gorin required mens rea. Of course Bart has consistently unable to identify them, as the claim of the longstanding policy would predict.

# posted by

Mista Whiskas : 11:03 AM

"Try reading the damned Gorin opinion."

I notice there was no supplying of what was asked for from the opinion.

"Reading is fundamental."

So is understanding, honesty in debate and a restraining of partisan extremism which clouds the first.

# posted by

Mista Whiskas : 11:05 AM

Fear not, Brett, as your fellow cave-dweller SPAM may provide cover for you. But, Brett, watch out for the stalactites and stalagmites, and make sure the mushrooms are safe to eat. I imagine the darkness may enlighten you.

# posted by

Shag from Brookline : 11:08 AM

Mr. W:

Once again, your sidestep does not avail you.

You claimed the Gorin opinion made the gross negligence mens rea constitutionally suspect. Yet, Gorin nowhere says this and you cannot cite a single court which cited Gorin gor this proposition.

Now, you are citing “long standing policy” of the same bureaucrats who conducted a criminal investigation of Trump without evidence of a crime. Yes, its the same handpicked group. It is to these heroes of due process to which you would have us defer.

Do realize or care about how incoherent you sound?

# posted by

Bart DePalma : 11:13 AM

SPAM's 11:13 AM closing line response to Mr. W:

"Do realize or care about how incoherent you sound?"

indicates that SPAM doesn't realize or care how incoherent he, SPAM, sounds.

# posted by

Shag from Brookline : 11:44 AM

Since we are off topic, two things. First, the Supreme Court recently considered various requests for a stay to the bump stock ban. Sotomayor asked for more briefing, but at the end of the day, the justices rejected the stay with Thomas/Gorsuch dissenting. One lower court judge who dissented when the D.C. Circuit decided what became the Heller case dissented too, arguing that the ban was not statutorily acceptable under current law.

----

Also, per the other matter. There was some pushback from a few criminal justice activists when Manafort* received what some deemed not enough prison time. Overall, I personally think he probably received a satisfactory amount of time, factoring everything including his age.

The basic problem with his sentencing for me was a comment about "other than that" from the sentencing judge, who has been fairly consistently concerned with mandatory sentencing guidelines and so forth. So, I don't think some of the digs of the judge were fair. But, as people noted, Manafort's career has been a range of bad things not worthy of such a remark.

His crimes here were significant and the years of prison time to me was suitable. This included lying to prosecutors during the actual criminal process took place. The crimes included tax evasion, bank fraud, and hiding foreign bank accounts [one set] and conspiracy to defraud the United States, money laundering, failing to register as a foreign lobbyist, making false statements to investigators, and witness tampering [second set].

But, consistent people in the criminal justice movement were wary about fellow travelers being concerned that he didn't receive enough time. An important issue of the day, which has received some support from across party lines at times, is reforming our criminal justice system as a whole. One good book is "Prisoners of Politics: Breaking The Cycle of Mass Incarceration" by Rachel Elise Barkow and Emily Bazelon (just on the Late Show) also has a new book on the topic.

===

* The campaign manager of Donald Trump. Newt Gingrich once stated, "nobody should underestimate how much Paul Manafort did to really help get this campaign to where it is right now."

# posted by

Joe : 11:57 AM

"Gorin nowhere says this"

It flatly says the vagueness is saved by the scienter.

"Now, you are citing “long standing policy” of the same bureaucrats who conducted a criminal investigation of Trump without evidence of a crime."

That policy has been for decades, you cannot cite a counterexample.

And there was not only evidence of crimes in the Trump campaign/administration in the area you speak of, but several convictions already.

# posted by

Mista Whiskas : 12:00 PM

BD: You claimed the Gorin opinion made the gross negligence mens rea constitutionally suspect. Yet, Gorin nowhere says this ...

Mr. W: It flatly says the vagueness is saved by the scienter.

We finally have a BINGO!

Specifically, as I explained from the outset, the vagueness of the element "as connected with or related to the national defense" was cured by the mens rea element "intent or reason to believe that the information to be obtained is to be used to the injury of the United States, or to the advantage of any foreign nation."

This holding in NO WAY applies to the perfectly clear proscription of 18 USC 793(f) or states that a leaser mens rea of gross negligence violates due process.

The defense rests.

# posted by

Bart DePalma : 12:14 PM

This comment has been removed by the author.

# posted by

Mista Whiskas : 12:57 PM

f there's a law that makes it illegal to transport a 'pit bull dog' for some reason with mens rea X and the Court hears a vagueness challenge because what is or is not a 'pit bull dog' can be vague, and the Court rules that the statute is saved because while what is a pit bull dog can be vague the mens rea X saves the statute from infirmity, then other laws making it illegal to transport a 'pit bull dog' with an mens rea *lesser* than X are suspect to a vagueness challenge, to say the least. Anyone with a modicum of logic or not brain damaged by extreme partisanship in a particular applicable case can see that. And the DOJ has seen that, which is why there have been no convictions post-Gorin on a gross negligence theory, something that you obviously cannot dispute. I guess all those decades of DOJ were in on the conspiracy to let Clinton go (even before she was a nationally known figure, what a conspiracy!).

In this case Bingo is indeed a dog, one confusedly looking for the ball that wasn't thrown...

# posted by

Mista Whiskas : 12:59 PM