Archive for the ‘law’ Category

Every morning, I open up my web browser wondering if today is going to be the day I don’t say “What the fuck?” about something that His Fraudulency Donald the Trump or one of his lizard people officials said or did. Today, once again, was not that day. Because a) the Orange Racist Pussy Grabber released his proposed budget for next year, a budget that predominantly eliminates programs that help Trump voters such as Meals for Wheels and the Appalachian Regional Commission (and what kind of heartless sociopath could ever advocate zeroing out the budget for Meals for Wheels and Sesame Street, for crying out loud!), but he also proposed spending $4.1 billion on his wall next year. Because people might die due to eliminating the Chemical Safety Board, but by god it won’t be done by one of them Messicans!

Talking about which, the Chief Justice of the California Supreme Court has demanded that ICE stop stalking California courts, claiming that ICE is intimidating Hispanic witnesses in ongoing criminal trials and causing a public safety hazard. ICE of course says basically “up yours, Ms. Judge, you’re not the boss of me!”. Just as Customs and Border Protection says to they don’t have to obey the NAFTA treaty that says registered nurses qualify for a TN visa and thus can keep out much-needed Canadian nurses because, well, they can. Even though NAFTA is still the law until officially repealed or renegotiated. But God-Emperor Donald the Trump’s administration doesn’t care about no steenkin’ law, it’s all defiant juvenile “you’re not the boss of me! I don’t have to follow your rules!”. Because Cheeto Mussolini says they can. So they do it.

Then there is the ongoing Nazi saga of Sebastian Gorka, who has been dodging allegations that he is a Nazi for weeks now. Well, today a Jewish news magazine published what they purport is evidence that he really is a genuine bona fide Nazi, forcing him to explicitly deny that he’s a Nazi. Except that if he was ever a member of that Hungarian Nazi Party, he is ineligible for immigration to the United States, and could be stripped of his citizenship and deported, just like that sad sack Nazi who’s about to be deported to Poland. Oops!

And on to the Russia front. No wonder Michael Flynn resigned — he was up to his ears in Russian dough.

Finally, I think we’ve found Donald Trump’s next Peace Corps head — a Mormon missionary who beat the crap out of two people who tried to hold him up in Brazil. Because Trump is defunding the Institute for Peace while giving the military more money because the only peace he believes in is the peace of the grave, and this is exactly the right man to enforce that peace.

And that’s this day’s dispatch from the Imperial States of America, where God-Emperor Donald the Trump’s regime of lawlessness and incompetence continues as it has for the past 56 days.

– Badtux the News Penguin

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Found: The memo by the Office of Legal Counsel issued to Trump a few hours before his executive order on immigration was released, okaying it for release:

January 29, 2017

This is the best Executive Order ever. Everyone says so. Thanks, Mr. Commander-in-Chief!
— Office of Legal Counsel

P.S. The Muslims won’t like it. Sad.


– Badtux the Snarky Penguin

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The League of Ordinary Gentlemen has a nice article about the legal ins and outs of the decision.


1) The appellate court ruled upon what had been briefed. The Government did not provide information about terrorist threats that required blocking admission of those who had already been authorized to be admitted to the country. The court cannot rule on 3rd party information which has not been introduced at the circuit court. Courts don’t work that way. If the State wants information to be considered by the appeals court, said information has to be introduced into the record at the circuit court level, which the State apparently did not do.

2) The court ruled primarily on the question of due process for revocation of existing visas, not on whether the President has power to refuse to issue visas or to block entry by specific individuals identified as threats to public safety. The court ruled that it is not going to repeal the stay for just parts of the executive order that are incontrovertibly within the President’s power because that basically would be the court re-writing the executive order. If the President wants to rewrite the executive order to be compliant with the Constitution and revoke the previous executive order, he needs to do so, the court is not going to do so.

In short, this was a narrow ruling on whether a stay or preliminary injunction should stay in place. There may be other arguments to make, but the appeals court can only consider the evidence and arguments that have been entered into the record, it is not tasked with independently seeking out information or considering novel arguments that were not introduced by the State and indeed that would be judicial misconduct. It appears that the DoJ lawyer is unfamiliar with such basic rules of legal practice. Frankly, from listening to the actual broadcast, this DoJ lawyer appeared to be completely flummoxed on many occasions. He appeared unprepared and with no response other than hemming and hawing when judges asked him “where is that briefed?” i.e. where is that evidence entered into the record? They seem unimpressed when he says “but we just started making our case, we haven’t done that yet!”, pointing out that he is the one who chose to appeal at this specific time, and it is his job to enter the evidence, not theirs. Frankly, if that’s his usual level of competence, I wouldn’t hire him to write a will. He’d probably write a will with so many holes in it that my heirs would be squabbling over who gets what for the next twenty years after I die.

And oh yeah, the government lawyer’s argument “You can’t review the President’s executive order, you don’t have the power!”. Uhm, yeah. That’s like telling a cop “do you know who I am? You can’t arrest me!”. Yeah, you get some new steel jewelry shortly thereafter, and a few new scrapes and bruises if you object, then a nice trip to a holding cell to share space with pimps, drunks, druggies, and so forth. Sure, you’ll get let out as soon as you make bail the next day and the charges will likely be dismissed, but there’s some things you just don’t say as a common sense thing, and telling a judge “you can’t review me, you don’t have the power!” is one of them.

– Badtux the Snarky Penguin

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I’ve seen multiple reports now of Customs and Border Protection defying the court order to allow green card holders into the United States.

Apparently Donald Trump has told the Department of Homeland Security to ignore the court orders, and the union representing Border Patrol agents has applauded the executive order, which even conservative lawyers call malevolent and incompetent. Trump apparently is saying to the judge, “you have issued your order, now enforce it.”

We shall see. A President who feels safe in ignoring the courts, who feels that rule of law no longer applies to him, is a President who is no longer a president, he is a strongman dictator. Tomorrow is going to be… interesting. In the Chinese sense of the word.

As for the order itself, as former Vice President Dick “Darth” Cheney put it:

“I think this whole notion that somehow we can just say no more Muslims, just ban a whole religion, goes against everything we stand for and believe in. I mean, religious freedom has been a very important part of our history and where we came from.”

When even Darth Cheney thinks you’re evil…

– Badtux

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Air Force colonel to get 6 months in jail for raping a teenage girl. The girl was fifteen years old. He was fifty. Yeah, it wasn’t forcible rape, “just” statutory rape where he used his position and his power to have sex with her, but six months? Really?! And to compound the injury, they’re going to wait to “officially” sentence him until he retires from the Air Force, so that he doesn’t get a dishonorable discharge and thus can keep his pension!

Feminists talk about “rape culture”. It looks like rape culture says that rape is just a little trivial thing, something to punish with a few months of jail and maybe probation for a few years after that. After all, that seems to be what our male judges think. Along with the rapist who swims. And the rapist who cheer leads. And the rapist who throws a football. Rape, apparently, is just something boys do, just boys being boys, nothing to get upset about. That’s what rape culture says, anyhow.

It seems to me that I need to update my Rules for Men:

  • If you’re walking alone at night and you see a woman walking alone, DON’T RAPE HER
  • If you come across a girl who is too drunk to consent, the safest course of action is to NOT RAPE HER
  • If you see a woman in a short, tight skirt – even if she’s not wearing underwear – DON’T RAPE HER
  • Don’t put drugs in women’s drinks. And if you do – DON’T RAPE HER.
  • If you pull over to help a woman who’s car is broken down, try to remember to NOT RAPE HER.
  • Carry a rape whistle, so that if you feel as though you are about to rape, you can blow it and call for someone to come stop you.
  • Use the buddy system! If you’re unsure you’ll be able to keep yourself from raping, go with a friend who can step in and stop you from assaulting women!
  • Just to be safe, never climb through a woman’s bedroom window, jump out at her from an alley, or stalk her on a dark street with the intention of raping her.
  • If a woman yells STOP, DON’T, or RAPE, take this as a cue to STOP RAPING HER.
  • (Alabama extension) If your cousin or your sister suddenly starts looking alluring to you… DON’T. Just don’t.

But most importantly:

  • If you’re a judge and a rapist comes before you, give him a penalty that’s within the recommended range for his crime. Don’t just give him a slap on the hand and give him a boy howdy ya had a good time, right? He’s a fucking rapist, not a buddy or pal. And if he didn’t want the consequences you’re about to give him, HE SHOULDN’T HAVE RAPED THAT GIRL.

I mean, Jesus fucking Christ on a goddamn Stick, this ain’t fucking brain surgery, judges. You got a RAPIST appearing before you, this wasn’t “boys being boys” or bullshit like that. The sonofabitch made a choice to fucking RAPE someone. It’s your job to punish him, not to feel sorry for him. If he didn’t want the punishment you’re about to give him, he shouldn’t have raped.

Sheesh. Some people.

– Badtux the Irate Penguin

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Hang’em high

In the 1968 Clint Eastwood movie “Hang’em High”, the first movie that Clint had a major hand in producing as vs just being an actor, there is a scene where Marshall Cooper, the character that Clint plays, is attacked by a cattle rustler. Two teenagers also being brought in for cattle rustling help Clint overpower the rustler.

They reach the town, and the rustlers are brought before the judge. Each is found guilty and sentenced to die by hanging. Clint objects that the two teenagers helped him and shouldn’t be sentenced to death. The judge allows as how it doesn’t seem fair, but the law is the law, and the alternative to rule of law is rule of gun — the sort of vigilante action that nearly resulted in Cooper’s death at the start of the movie.

That scene has stuck with me over many years. I’ve seen the truth of it many, many times. As imperfect as rule of law is, the alternative is even more horrifying. Granted, often the law is an ass. But in a democracy, the solution to that is to fix the law — not to take the law into your own hands. That path leads to even more injustice.

[As an aside, every time someone claims Clint is a “simplistic dinosaur”, I think of this scene, in the first movie where Clint controlled everything — it was made by his production company with the money he got from the preceding spaghetti westerns. Clint is a more complex man than people generally admit.]

– Badtux the Rule Of Law Penguin

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Jury nullification is the notion that a jury in a court of law should vote according to their prejudices and opinions, rather than according to facts and the law. It is usually mentioned in the context of what’s considered a miscarriage of justice — a cancer patient being put on trial for growing the medical marijuana that makes her condition bearable, a man who stole a candy bar being subject to life in prison if being convicted of his third “strike”, and so forth.

The thing is, substituting your own prejudices and opinions for facts and the law leads to even greater injustices. Consider, for the moment, the murder of Emmett Till in 1955. The facts were not in controversy when two men, Roy Bryant and J. W. Milam, were brought to trial for his murder. They had killed him, then they had weighted his body down with a fan, and then thrown it in a river. By the end of the trial, multiple witnesses had made it plain that this is what happened. The jury took 5 minutes to decide that their prejudices and opinions were more important than rule of law, and found the defendants “not guilty”.

That is the kind of injustice that can happen when juries buy into the notion of jury nullification rather than ruling according to facts and the law. It happened many, many times during the Civil Rights era, where smirking KKK members on trial for murdering black civil rights workers, many times even freely admitting they’d killed “uppity outsider nigras who was rilin’ up our own nigras”, were freed over and over again by all-white juries that ruled according to their bigotry, according to their prejudices and opinions, rather than according to facts and the law.

In short, jury nullification is a slippery slope that leads to more incidents, more applications of jury nullification, and the incidents become worse and worse until even murder becomes acceptable if it’s murder of one of them “uppity outsiders”. Which is why it is so worrisome that a jury found Y’all Qaeda “Not Guilty” not only of the charges that had some question about facts, such as conspiracy and theft, but also of charges that are incontrovertible fact backed up by video footage of the defendants themselves committing the offense — that is, the crime of possessing a weapon within a federal facility. In short, this was a clear example of jury nullification taking place, and the repercussions may be with us for many, many years as more of these militia nutcases commit more and more crimes convinced that jury nullification will be their “get out of jail free” card. People are going to die, in the end. Maybe lots of people, in the end. This kind of lawlessness never has a good end, as we found out in the American South during the civil rights era, when many lives were lost as all-white juries let murderer after murderer walk because “I ain’t gonna send no white folk to prison for killin’ a nigger.” Ruling based upon facts and law can lead to injustices, true. But it’s the best approximation we have of justice in this imperfect world. Rulings instead based on opinions and prejudices lead, in the end, to far, far more injustices. Just ask the family of Emmett Till about that one.

– Badtux the Law Penguin

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