I AM NOT A CRIMINAL LAW ATTORNEY.
Instead, I'm mostly drawing from discussions with my father-in-law.
Nonlawyer Explainer Thread: On Keeping One's Mouth Shut
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.
I AM NOT A CRIMINAL LAW ATTORNEY.
Instead, I'm mostly drawing from discussions with my father-in-law.
So with that in mind, let's look at this hypo.
*Knock*
*Door opens*
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.
[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.]
[Note: The agents will have seen ALL of her social media and they know she's seen it, but will not be above implying otherwise.]
[Note: Deliberately implying that they think the whole thing is nonsense that they want to get rid of and that they're completely sympathetic to her.]
Ms X: I don't know if this is something I should be talking to you about. Should I have my lawyer here for this?
[Note: Yes, they can say that.]
Agent Smith: Honestly, ma'am, like I said we're mostly down here because our boss kinda has a stick up-- I mean, he just doesn't really like it if we close something without talking to you. And we don't want to inconvenience you.
Agent Smith: We can always arrange to do this downtown later on if you want. I mean, I don't really think we need to do that, and I was really hoping to get this wrapped up today so I can get back to some of my other cases that involve, y'know, crimes.
Agent Smith: I mean I can't promise anything, of course - the boss will need to see that we checked the boxes and all that, but I'll certainly do my best. And this seems pretty clear-cut to me, so this shouldn't take long.
Agent Smith: Thanks.
*sitting down, possibly refreshments, possibly touring house in process*
Ms X: We were pretty excited about that.
I'm going to close this here, because hopefully the basic point is clear: it's not that hard for someone who sounds sympathetic to get someone to talk.
That means they don't have to read the Miranda warning.
With something like this, where her social media shows that she has no conception she was in the wrong, I think there's a very good chance that would work.
"I'm not going to talk to you without my lawyer."
Don't fall for it.
Stay silent. Get a lawyer.
@HaygoodLaw
@LutherEvers
@greg_doucette
@ASFleischman
Are better positioned to answer than me.
https://t.co/BJDlnjMSuE
How is that done? I don't have a criminal defense lawyer on speed dial.
— jack_dahlgren (@jack_dahlgren) January 8, 2021
More from Mike Dunford
I've been trying to think that through - not just legally, but judicially.
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.
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.
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.
This is an excellent question, and it's something that I've thought about some over the last couple of months.
Honestly, I think the answer is that the rationales for these rulings are not likely to unreasonably harm meritorious progressive OR conservative challenges.
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.
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.
Election Litigation Update: DC - the "let's sue the Electoral College" case.
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.
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.
Link: https://t.co/oOJZD1F4x2
— Brad Heath (@bradheath) January 4, 2021
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.
More from For later read
The #worldwildlifeday2021 theme is Forests and Livelihoods: Sustaining People and Planet aligning with UN Sustainable Development Goals 1, 12, 13 and 15. So, what are the UN Sustainable Development Goals (SDGs) & how can children begin to learn about them & get involved ?
https://t.co/8ICvHxE9QL is easy & fun to follow for our smallest of people #EYFS. Early childhood is the perfect stage to introduce the core concepts of what it means to be a global citizen. For our reception & KS1 children please take a look at this fabulous free resource
https://t.co/tZx8UIS58Q Storytelling is a powerful communications tool and helps children remember lessons and virtues that they will use in everyday life. The idea is to simplify the lessons of the (SDGs) so young children can relate to – and better understand – the SDGs.
For older children here’s a board game that aims to help teach children around the world about the Sustainable Development Goals in a simple and child-friendly way
This is a lovely free book for children to enjoy flicking through themselves https://t.co/ScMbQCfpjl Elyx, the United Nations’ digital ambassador, uses various expressions and actions to help demonstrate the meaning of each Sustainable Development Goal.
https://t.co/8ICvHxE9QL is easy & fun to follow for our smallest of people #EYFS. Early childhood is the perfect stage to introduce the core concepts of what it means to be a global citizen. For our reception & KS1 children please take a look at this fabulous free resource
https://t.co/tZx8UIS58Q Storytelling is a powerful communications tool and helps children remember lessons and virtues that they will use in everyday life. The idea is to simplify the lessons of the (SDGs) so young children can relate to – and better understand – the SDGs.
For older children here’s a board game that aims to help teach children around the world about the Sustainable Development Goals in a simple and child-friendly way
This is a lovely free book for children to enjoy flicking through themselves https://t.co/ScMbQCfpjl Elyx, the United Nations’ digital ambassador, uses various expressions and actions to help demonstrate the meaning of each Sustainable Development Goal.
There is some valuable analysis in this report, but on the defense front this report is deeply flawed. There are other sections of value in report but, candidly, I don't think it helps us think through critical question of Taiwan defense issues in clear & well-grounded way. 1/
Normally as it might seem churlish to be so critical, but @cfr is so high-profile & the co-authors so distinguished I think it’s key to be clear. If not, people - including in Beijing - could get the wrong idea & this report could do real harm if influential on defense issues. 2/
BLUF: The defense discussion in this report does not engage at the depth needed to add to this critical debate. Accordingly conclusions in report are ill-founded - & in key parts harmful/misleading, esp that US shldnt be prepared defend Taiwan directly (alongside own efforts). 3/
The root of the problem is that report doesn't engage w the real debate on TWN defense issues or, frankly, the facts as knowable in public. Perhaps the most direct proof of this: The citations. There is nothing in the citations to @DeptofDefense China Military Power Report...4/
Nor to vast majority of leading informed sources on this like Ochmanek, the @RANDCorporation Scorecard, @CNAS, etc. This is esp salient b/c co-authors by their own admission have v little insight into contemporary military issues. & both last served in govt in Bush 43. 5/
This is an excellent report, and I'm glad to have joined the study group. The central focus on avoiding war is understandable--a US-China war would be catastrophic and should be avoided. But protecting Taiwan's security and prosperity requires doing more. 1/x https://t.co/P0Sg4LJcpV
— Bonnie Glaser / \u845b\u4f86\u5100 (@BonnieGlaser) February 12, 2021
Normally as it might seem churlish to be so critical, but @cfr is so high-profile & the co-authors so distinguished I think it’s key to be clear. If not, people - including in Beijing - could get the wrong idea & this report could do real harm if influential on defense issues. 2/
BLUF: The defense discussion in this report does not engage at the depth needed to add to this critical debate. Accordingly conclusions in report are ill-founded - & in key parts harmful/misleading, esp that US shldnt be prepared defend Taiwan directly (alongside own efforts). 3/
The root of the problem is that report doesn't engage w the real debate on TWN defense issues or, frankly, the facts as knowable in public. Perhaps the most direct proof of this: The citations. There is nothing in the citations to @DeptofDefense China Military Power Report...4/
Nor to vast majority of leading informed sources on this like Ochmanek, the @RANDCorporation Scorecard, @CNAS, etc. This is esp salient b/c co-authors by their own admission have v little insight into contemporary military issues. & both last served in govt in Bush 43. 5/
