Authors Mike Dunford
This is the first of what will (hopefully) be a limited number of #Kraken-related threads.
That said, I doubt the number will be limited. I think Sidney Powell is the Orly Taitz of the Biden Administration.
And I doubt I've acquired enough maturity since my younger birther-watching days to ignore these. So, yes, at least for cases with public dockets, I'm here.
We've got two filings so far - a Michigan one (King v Whitmer) that has been filed, and a Georgia one (Pearson v Kemp) that cannot presently be located on PACER.
This may be because there are parallel Quorts not in the system but maybe it just didn't get filed.
Here's how I'm going to deal with that - I'll start livetweeting King (the filed one) in a little bit, after I do some turkey prep. I'll do that in this thread, but probably even slower and more interrupted than usual - so you might just want to bookmark and come back later.
Tonight, if there's interest, I might be both willing and able to stream a read of the (maybe unfiled) GA case on Twitch tonight.
Oh myyyyyyyyyy— Mike Dunford (@questauthority) January 25, 2021
Good morning, followers of frivolous election-related litigation - new filings in Seditionists v 117th Congress et al. (aka in re Gondor)
I've really got to get stuff done, but there's time for a really quick overview.
As far as I can tell from the docket, this is the FOURTH attempt in a week to get a TRO; the question the judge will ask if they ever figure out how to get the judge's attention will be "couldn't you have served by now;" and this whole thing is a
The memorandum in support of this one is 9 pages, and should go pretty quick.
But they still haven't figured out widow/orphan issues.
It appears that the opening of this particular filing is going to proceed on the theme of "we are big mad at @SollenbergerRC" which is totally something relevant when you are asking a District Court to temporarily annihilate the US Government on an ex parte basis.
Also, if they didn't want their case to be known as "in re Gondor" they really shouldn't have gone with the (non-literary) "Gondor has no king" quote.
Reply brief is in. Let's have a look. They are, mercifully, underlength. They had 50 pages available, the PDF is 43 and some of that is cover page, signatures,
Interesting table of contents. Looks like they're packing a lot in, until you realize that much of the material that's important - like their response to the "you sued the wrong person" material and "injury in fact" take up very little space.
Looks like they decided to skip the table of authorities. Presumably GoogleDocWord ate it too bad for them to fix. This will certainly further endear them to the judge.
This is going to be interesting - leading off a reply brief with a "here's what our cause is about" is certainly a strategy. It's even a bold strategy.
Shall we dig deeper, Cotton?
"We live in a democratic republic in which the Vice President, who will more often than not be a candidate in the election, has the sole and unchallengeable power to decide who wins the election" is a hellofa take.
Good afternoon, followers of frivolous election litigation. There's a last-minute entry in the competition for dumbest pre-inauguration lawsuit - a totally loony effort to apparently leave the entire USA without a government.
We'll start with the complaint in a minute.
But first, I want to give you a quick explanation for why I'm going to keep talking about these cases even after the inauguration.
They're part of an ongoing effort - one that's not well-coordinated but is widespread - to discredit our fundamental system of government.
It's a direct descendent, in more ways than one, of birtherism. And here's the thing about birtherism. It might have been a joke to a lot of people, but it was extremely pernicious. It obviously validated the racist "not good enough to be President" crowd. But that wasn't all.
Don't get me wrong, that was bad enough. Validating racism helped put the kind of shitbird who would tweet this from an official government account into power. But it didn't stop
(Also, if you agree with Pompeo about multiculturalism - the legendary melting pot - not being what this country is all about, you need to stop following me now. And maybe go somewhere and think about your life choices and what made you such a tool.)
This is a bit surprising, given that as of last time I checked nobody had been served and no appearance had been entered. I suspect it's an effort to make sure the case isn't "pending" on the 6th.
And, sure enough, still no proof of service on ANY defendant, still no appearance from defense counsel. And this is denying the motion for preliminary injunction but does NOT dismiss the case - which is potentially ominous for plaintiff's counsel.
This isn't a "happy judge" kind of first paragraph. Not even a little bit. Nope.
Y'all, this isn't even directed within a few hundred miles of my direction and I sill just instinctively checked to make sure that there's room for me to hide under my desk if I have to - this is a very not happy, very federal, very judge tone.
Also - the judge just outright said there's a bunch of reasons for dismissal. And not in "might be" terms. In definite fact ones. But the case isn't dismissed yet.
If I was plaintiffs counsel, I'd definitely be clearing under my desk right now, and possibly also my underwear.
As Akiva notes, the legal question is going to boil down to something known as "actual malice."
That's a tricky concept for nonlawyers (and often for lawyers) so an explainer might help.
What I'm going to do with this thread is a bit different from normal - I'm going to start by explaining the underlying law so that you can see why lawyers are a little skeptical of the odds of success, and only look at the complaint after that.
So let's start with the most basic basics:
If you want to win a defamation case, you have to prove:
(1) that defendant made a false and defamatory statement about you;
(2) to a third party without privilege;
(3) with the required degree of fault;
(4) causing you to suffer damage.
For Dominion's defamation cases, proving 1 and 4 is easy. 2 is, in the case of the lawyers they're suing, slightly more complex but not hard. And 3 - degree of fault - is really really hard to prove.
A false statement of fact that is defamatory is a slam dunk element here - all the fraud allegations against dominion are totally banana-pants. They are also allegations which are clearly going to harm Dominion's reputation.
It occurs to me that certain private-jet-flying seditionists who continue to yammer on Twitter about their DC excursions provide us with the opportunity to do a little hypo to explore the benefits of silence.
So let's explore what a hypothetical law enforcement interview *might* look like in this situation. I'm not - I want to make clear - drawing from experience as a lawyer here.
I AM NOT A CRIMINAL LAW ATTORNEY.
Instead, I'm mostly drawing from discussions with my father-in-law.
My father in law is a now-retired homicide cop, and we've had a lot of discussions (especially since I started law school) about criminals and interviews over the years.
So with that in mind, let's look at this hypo.
ALSO - Simplifying for Twitter character counts.
Agent: Ms [Name]? I'm Agent Smith, and this is Agent Jones. We're with Agency. We'd like to talk to you if you've got a minute.
Ms X: Oh? Is this about that thing at the Capitol?
[Yes, it seems insane but if you're worried about something specific and the cops show up, blurting out something like that is totally a thing that can happen.]
1: The Texas "lawusit" against four other "battleground" states in the United States Supreme Court is legally stupid.* It is so legally stupid that I was reluctant to believe that even Ken Paxton would file it.
*My patience level is not ginormous today. Please don't try to explain to me why you think it isn't stupid for whatever other reasons because I'll be making liberal use of the airlock. Thx.
2: Yes, one state can sue another at the US Supreme Court. However, the Supreme Court gets to decide whether to take the case. One factor that they will **undoubtedly** look at is the factor of "injury."
Texas is claiming two things. First, that the states have a special interest in who becomes Vice President because of the tiebreaker. Second, that their electors are injured if their votes are "diluted" by electors from states that, in Texas's view, didn't obey their own law.
There is very little argument presented for "injury." Even less - barely a paragraph - was presented for how the defendant states caused that injury.
For lawyers, this is a signal that this is a performance of politics by "litigation" and not a serious effort.
And let's start with an election litigation update for the Gohmertian Goofiness.
As of 3 minutes ago no reply brief from Gohmert but some other updates have appeared.
(No, the judge won't ignore his filing if it's a little late.)
AND IT GETS BETTER -
I just looked for an update. Found one. They're asking for another hour because the dog ate their homework.
Seriously, they've been using Google Docs for their serious work and are having problems making that work with Word to produce the final version of this filing.
That filing, by the way, can be up to 50 pages long but, given the strong hint in the motion granting permission for the overlength filing, should address everything not just in Pence's brief but also in the House Amicus and the proposed intervenor's motion to dismiss.
Meanwhile, the treasonweasel cosplayers from Michigan want to intervene as plaintiffs.
Not only do they want to intervene, they want to do so in their "official capacities as Presidential Electors for the State of Michigan."
Note: They are not Presidential Electors. Anywhere.
1: The Notice of Appeal doesn't shock me; I figured Louie would be this dumb.
2: As was the case with the case at the District Court, it doesn't really matter how vigorously Pence defends this.
3: The lack of standing is so spectacularly, glaringly obvious that it doesn't really matter whether Pence raised certain arguments; they will get noticed by the court.
4: That's because federal courts have an independent duty to ensure they have jurisdiction.
5: Standing is a jurisdictional requirement; no standing means no case.
6: The rules for standing are clear and nothing in the opinion dismissing the case was the least bit controversial in any universe except the alternate one inhabited by Louie and the Arizonan cosplayers.
7: "But it's the 5th Circuit" will be raised both by Trumpistians and those who are exceptionally nervous. There is exactly as much reason to be concerned about the 5th as there was the trial court: ie none at all.
So - my expectations:
Given the timeline, I suspect that Louie will be granted an expedited appeal and will lose on an expedited basis. I also expect that he will appeal to SCOTUS and the appeal there will not be expedited.
No, this is not a thing that will change the election. At all.
If this is real - and I do emphasize the if - it is posturing by the elected Republican "leadership" of Texas in an attempt to pander to a base that has degraded from merely deplorable to utterly despicable.
Apparently, it is real. For a given definition of real, anyway. As Steve notes, the Texas Solicitor General - that's the lawyer who is supposed to represent the state in cases like this - has noped out and the AG is counsel of
It looks like we have a new leader in the \u201ccraziest lawsuit filed to purportedly challenge the election\u201d category:— Steve Vladeck (@steve_vladeck) December 8, 2020
The State of Texas is suing Pennsylvania, Georgia, Michigan, and Wisconsin *directly* in #SCOTUS.
(Spoiler alert: The Court is *never* going to hear this one.) pic.twitter.com/2L4GmdCB6I
Although - again - I'm curious as to the source. I'm seeing no press release on the Texas AG's site; I'm wondering if this might not be a document released by whoever the "special counsel" to the AG is - strange situation.
Doesn't matter. The Supreme Court is Supremely Unlikely to take this case - their jurisdiction is exclusive, but it's also discretionary.
Meaning, for nonlawyers:
SCOTUS is the only place where one state can sue another, but SCOTUS can and often does decline to take the case.
The more thinking I do the less serious - and more ludicrous - the entire thing looks. And the more obvious it becomes that this is the proposal of deeply unwell individuals who are not thinking clearly.
Can you game out where it would go it theoretically Trump did enact some EO demanding the impounding of voting machines? As that\u2019s clearly the game. Like he signs it, then what? Do marshals listen or refuse? Do states sue and get an emergency injunction and that\u2019s the end?— Bryan Duva (@duva60) December 21, 2020
On the legal side, I read through the list of emergency powers - the whole list - that was assembled by the Brennan Center. Nothing on that list fits. Nothing comes even
It seems extraordinarily unlikely that any executive order along the lines of what has been discussed would be legal. In this case, it can be taken as a given that one or more targeted jurisdictions would dash right off to the courthouse.
Standing would not, it should go without saying, be likely to be an issue. I doubt redressability would either. I think it's very likely that restraining orders and injunctions would be swiftly issued.
That's the legal side, to the extent it's possible to speculate on that at all at this point. Basically, there's no readily apparent legal basis for such a thing, so it probably wouldn't be legal.
That's the easy part. Now for the nuttier side - the logistics.
New filing in Orly Tatiz's bonkers attempt to halt the 2nd Impeachment trial. It's a gloriously burning train wreck of mangled formatting and hideous typography.
For those who may have forgotten, this is the case we saw last week - the one where Orly took the 12(b)(6) game to the next level by LITERALLY forgetting to include actual claims in her complaint.
So technically it's still unclear what she's suing over.
And, frankly, it's not like I can talk about the merits of this one because there aren't any. But the sheer stunning insanity of the formatting alone makes this worth a thread.
Even though, honestly, it's not the worst Orly has produced.
For context, the text below comes from the State of Hawaii's 2012 response to a motion for reconsideration in one of the birther cases.
"an inartfully collated, defectively stapled, and misordered collection of pages" is still one of my favorite descriptions of a filing ever.
Just to start with, apparently we're putting the caption on both sides of the (incomplete) line now. Single spaced on one side, double spaced on the other, no less. With everything but the judge's name in caps.
I *will* without a doubt regret this.
But I'm going to watch Mike Pence read out the last returns before I go to sleep.
FUCK YEAH, AMERICA!!!!
That was not sarcasm. Hell, I've got Lee damn Greenwood running through my head right now.
We had a no-kidding attempted coup today. One of the two guys who would have benefitted from that coup is standing in the chamber of the House - which was occupied by seditionists hours ago - signing off on his electoral defeat.
I never, in a thousand years, thought I would say this.
But I say thee ye, Michael Pence.
So she dismissed the MI Kraken tentacle sometime after midnight.
It a 36-page opinion.
And it starts out strong.
ACK - my bad -
Sorry. I'm tweeting without caffeine and it shows. The order rejects the injunction, but it doesn't dismiss the case (yet). Skimming ahead, that appears a foregone conclusion, but technically the case isn't dismissed.
Seriously, though - this is yet another judge who is responding to these request to overturn the election with the judicial version of "you want me to *what*? Hard pass."
The judge is being kind to the plaintiffs here and doesn't mention the epiceyeburningdisasterthatwastheoriginalcomplaint. But you'll note that the judge also doesn't mention what claims were in that complaint or whether they are the same as the ones in the 1st Amended Complaint.
It's yet another motion for a Temporary Restraining Order - making it the 3rd in 3 days.
And it's a
Now, you'd think that if you kept throwing 'emergency' paperwork at the court and the court kept saying nothing in reply that you might want to take some time and figure out what you're doing wrong, but nope. Not these buffoons.
They're still not within 50 miles of complying with Fed R Civ P 65 - and my guess is that this judge might view that as entirely a "them" problem which the court has no obligation to explain.
So they're still stuck at Step 1.
But that's honestly the least of their issues.
They have, apparently in lieu of attempting to comply with Rule 65, put "ORAL HEARING REQUESTED" in all caps right after the heading.
I'm not a litigator but I don't think that's a recognized alternative to attempting to provide notice to the adverse party.
They want to "preserve the status quo" by placing two of the three branches of government in a state of "stewardship." That's...
Honestly, I think the answer is that the rationales for these rulings are not likely to unreasonably harm meritorious progressive OR conservative challenges.
Any merit to the notion that the rationales for some of these rulings will harm progressive challenges in future elections?— Andrew Broering (@AndrewBroering) January 3, 2021
One says laches, another moot, another standing, sometimes with almost the same type of plaintiff.
The first thing to keep in mind is that, by design, challenges to the outcomes of elections are supposed to be heard by state courts, through the process set out in state law.
That happened this year, and the majority of those challenges were heard on the merits.
The couple of cases where laches determined the outcome of state election challenges were ones where it was pretty clear that the challenges were brought in bad faith - where ballots cast in good faith in reliance on laws that had been in force for some time were challenged.
The PA challenge to Act 77 is one example. The challengers, some of whom had voted for passage of the bill, didn't make use of the initial, direct-to-PA-SCt challenge built into the law or sue pre-election; they waited until post-election.
The WI case is another. That one had a challenge to ballots cast using a form that had been in use for a literal decade.
Those are cases where laches is clear - particularly the prejudice element.
OK, so since my attempt to sit back while Akiva does all the work of going through the latest proof that not only the pro se have fools for lawyers has backfired, let's take a stroll through the motion for injunctive relief.
At the start, I'd note that the motion does not appear to be going anywhere fast - despite the request that they made over 80 hours ago to have the motion heard within 48 hours.
The most recent docket entries are all routine start-of-case stuff.
Why isn't it going anywhere quickly? Allow me to direct your attention to something that my learned colleague Mr. Cohen said
Folks, judges DO NOT read complaints or petitions when they are filed, and they DO NOT just up and act on the "requests for relief". If you want something, you need to actually ask the court for it by a motion, not just put it in your "here's what we want if we win" section— Akiva Cohen (@AkivaMCohen) January 4, 2021
Now I'm not a litigator, but if I had an emergency thing that absolutely had to be heard over a holiday weekend, I'd start by reading the relevant part of the local rules for the specific court in which I am filing my case.
In this case, this bit, in particular, seems relevant:
My next step, if I had any uncertainty at all, would be to find and use the court's after-hours emergency contact info. I might have to work some to find it, but it'll be there. Emergencies happen; there are procedures for them.
And then I'd do exactly what they tell me to do.