PDS

Brant:  this is distressing.   Do you have any new information on George’s situation?

1 hour ago, Michael Stuart Kelly said:

David,

Hold your horses there, twinklefoot.

There are many plausible explanations other than malpractice, despite how exciting the prospect of accusing Rudy Giuliani of malpractice may be...

I think Ellen's comment is correct. I recall there was a hugely publicized split between Rudy's team (the Trump team) and Sidney Powell. They stated openly back then that they were pursuing two different legal premises and were separating so that one would not overlap with the other. I even recall someone saying (was it Jenna?) that the main reason was agility and speed. As we all know, Sidney's premise is about nothing but fraud.

Of course, the fake news media had a ball with this back then (Trump is deranged and disorganized, yada yada yada), but I believe that's probably why.

Sidney has since been shown to be on Trump's team, although informally. So in effect, his lawyers are presenting fraud to the courts, even if that unity is informal.

After all, formally, there can only be one Trump team and there can only be one Kraken.

Michael

I am assuming that Rudy G is NOT committing malpractice.   This is the way lawyers talk:  i.e.,  you presume the strategy employed by a fellow lawyer does NOT include malpractice.  Here,  I am assuming that, instead, Rudy’s team cannot meet the evidentiary standards for fraud.   Thus the two if’s used in my formulation.    

Let’s not get personal, MSK.   No need to call me names, and no need to speculate about my motives for making statements here on OL.   I might turn out to be wrong in places, but you can at least presume good faith.  I’m not interested wasting my own or anybody else’s time.

By the way, there is no such thing as an “informal” legal team as you suggest above.   I am pretty certain that the fraud claims have not been “farmed out” to Sydney Powell’s team by the Trump legal team.   There would be no attorney-client protections under such an arrangement, and any communications between the respective legal teams would be subject to discovery.   That’s not a plausible arrangement in this context, and I just can’t imagine the Trump legal team being sanguine about another law firm addressing those issues in a manner that adequately protect’s Trump’s legal interests.   

41 minutes ago, Michael Stuart Kelly said:

I think Lin knows something and is helping set the table for a major change.

I'm down with that.

If the system in place refuses to look at evidence, constantly censors people who talk about it, and puts on sham audits and so forth where detection is impossible, the military has to come in and do the job for them.

And, of course, get rid of the bad actors.

Michael

“And, of course, get rid of the bad actors.”  

How many Justices of the Supreme Court would this include?   7, 9, or just the 3-4 liberals?  

You may be right about the strategy you outline above, Ellen.   [Good to talk to you, by the way].

That would be a very high-risk, high-reward strategy, and there really is no downside to including the fraud claim in the original pleading or complaint, so I tend to doubt this is what the thinking was.   In complex civil litigation, there are usually an abundance of causes of action plead, and when it looks like one or two don’t pan out, those claims can then be voluntarily dismissed.   There’s almost no risk to that.  

There’s a ton of risk to your suggestion, because once the underlying case is dismissed with prejudice (as several of them have been), there is almost no chance that a separate, independent claim for fraud would then successfully be filed.  Such a second lawsuit would generally be barred by the doctrine of res judicata.   Not to mention that the time constraints that the Trump team is working under would tend to not favor holding anything back in the first instance.  

Believe it or not, I’m really not trying to Monday-Morning-Quarterback Trump’s lawyers.   I’m just trying to make sense of a legal strategy that intimates to the public that there are massive amounts of “election fraud” issues while at the same time failing to take the opportunity to actually litigate those very issues.  

Something doesn’t add up here.

2 hours ago, Michael Stuart Kelly said:

David,

Have you looked at the evidence?

It's quite striking.

I can't think of a single reason why that would not be admissible in court as allegations of fraud.

Look at videos of Rudy's road show of hearings and tell me what the witnesses said is not admissible in court.

If you haven't looked, it's an eye-opener.

I don't know what to call that evidence other than testimony about fraud.

And yes, some of it comes with concrete facts that people can look at like more votes tallied than there are voters. When this is sporadic, it could be a mistake. When it is a lot and it always favors Biden, it's more than just an opinion of fraud.

There's a ton load of stuff like that.

Michael

“There’s a ton load of stuff like that.”

This comment proves my point.   If so, then why haven’t Trump’s lawyers made fraud allegations? 

I jumped in above after you posted the video about “election fraud” from EconomicWarRoom.  If there is so much “election fraud”, and if it so easily demonstrable, then Trump’s lawyers have committed malpractice by not pleading it.    I’m not criticizing the Trump lawyers’ win loss record—which isn’t exactly pretty—I’m criticizing their failure to plead the very cause of action that so many Trump supporters have been led to believe is the cornerstone of stolen election claim itself.    

If you have the goods, and you have less than 45 days to make your claim stick before the other guy is inaugurated, you don’t forget to plead the fraud claim.  

9 hours ago, Michael Stuart Kelly said:

David,

I don't know the strategy. Maybe it's because election fraud and voter fraud are criminal in nature and the suits Trump's lawyers are running up the chain are civil.

I do know that it would be helpful if law enforcement had some kind of investigation going of the fraud being exposed daily.

Frankly, the FBI's behavior recently makes many Americans feel that it is nothing but a decoration. Even under Comey, it investigated Hillary Clinton's servers. It made a mess of it, but it investigated. During a brazen theft of an election, it's MIA. That's just not right. There are a lot of calls for it to be dismantled.

Michael

Sometimes a cigar is just a cigar.   Fraud allegations can be added to civil proceedings as a separate (Civil) cause of action.   The allegations need only be proven by a preponderance of evidence.  There is no reason for the Trump lawyers NOT to include fraud allegations in their swing states’ lawsuits—assuming they have the goods.

There is a logical and likely reason the lawyers haven’t specifically asserted fraud allegations in Trump’s swing states’ lawsuits—at least the ones I have reviewed.   The reason?   They don’t feel comfortable making that statement without facts, or admissible evidence.   The Trump lawyers could be sanctioned for doing so.  Unlike the purely legal arguments such as Equal Protection that are being dismissed by the courts pretty consistently, a fraud allegation requires facts to be pleaded—within the complaint itself—“with particularity”.   Has anybody seen the Trump lawyers do this?  In any of their lawsuits?   

Why bring this up?  Very simply, I just think it’s worth bearing in mind that Trump’s lawyers have by and large avoided making fraud claims.  Those are their actions, not their words.  It is tempting to blank out on this, and just keep focusing on general “fraud” theories that come up on the Internet, but those various fraud theories clearly aren’t going anywhere in the Trump War Room.  

If I have learned one thing from MSK over the years while reading OL—I’m being 100% genuine about this—it’s that a good rule of thumb is to watch someone’s actions, not their words, when assessing a situation.   That would seem to be especially important now.  And here.  

Is there a state court lawsuit in which Trump’s lawyers (as opposed to Lin Wood or somebody) are alleging election fraud?  

It looks like Trump’s lawyers have actually disavowed any fraud claims in Pennsylvania, Arizona, and Nevada.  This is pretty important, no?

[Edit:  I just read the Wisconsin lawsuit filed by Trump on December 1, 2020, and there is no allegation of fraud.]

Andrew McCarthy at National Review has a pretty blistering piece up about the merits of the State of Texas lawsuit.   He claims that the project is doomed to fail because the States lack standing, and that they also may have waited too long (which is undoubtedly true; whether that matters or not in the litigation is a separate question).

In 2019, McCarthy wrote a pretty pro Trump book about the D playbook in creating the Russian collusion narrative.   He is generally pretty solid on legal issues, imo.   Probably worth bearing in mind before labeling McCarthy just another Republican Squish.   

That said, I just don’t see the point of legal commentators who feel the need to offer a “hot take” in the manner McCarthy did today at NR.   He really goes after the AG’s in terms of the motives as well as the merits of their lawsuit, and never once addresses the novel notion that maybe the AG’s are filing suit or joining in the suit because they genuinely believe the relief they are asking for is warranted.   Way too much speculation about the motives for the lawsuits, something about which McCarthy has no personal knowledge.  

The Supremes are going to do something big tomorrow or Friday, or maybe as late as early next week.   I’m pretty sure they will schedule an oral argument on whatever motion they take up.   When that gets specifically scheduled, then the case is off to the races.   I wouldn’t read too much into random, generic docketing notices that do not contain specific dates, times, or descriptions of the nature of the hearing.  

Up above, MSK asked what the term “intervene” means in this context.   It’s basically the same as joining the lawsuit as a plaintiff or defendant, and there must be an interest to be protected that would be left unprotected with allowing such intervention.   

The other states having joined the Texas lawsuit makes this a true heavyweight fight.   

1 hour ago, Michael Stuart Kelly said:

Great to see you again.

As to the case, Rudy's pleased.

We do disagree on one point. I'm not a lawyer, but I don't find presenting proof in court of massive election fraud a crackpot enterprise. I read Licensed to Lie and, if I remember correctly, every time Sidney Powell took on a new case against the Clinton machine attack dogs, the Weissmann's of the world called her a crackpot, that is until she got their judgments overturned, sometimes by the Supreme Court.

In Weissmann's case in particular, I believe he better watch out for the "crackpot." I think she would love to see him--and his gang--disbarred, disgraced and thrown in jail. I wonder what will happen once President Trump is sworn in for a second term...

Imagine the "crackpot" as the new AG. 

Think something like that can't happen?

I remember people saying that Trump would never be elected as President. They were absolutely certain, too.

 

Michael

Powell’s work on behalf of General Flynn was some of the best I have ever seen.   In fact, that work convinced me to contribute to Flynn’s legal defense fund.  

On the other hand, she hasn’t exactly set the world on fire as of yet in any of her Trump cases.   Election law is pretty nuanced, and it is a basic fact that every lawyer wants to win at the trial court level because that has a crucial effect upon the standard for appeal.  Losing is not a strategy to get to the Supreme Court, in other words.   As with chess, a  beginning loss can have a decisive effect upon the middle and end proceedings.   

There is an old cliche about the two most important rules for winning an appeal:  (1) first win below, and (2) don’t forget to wear your tie to the oral argument.  

Does this mean she can’t win in front of the Supremes?  Obviously not.   Maybe her Biblical Kraken bravado was well-planned 3 level chess, and not simple hubris—something, by the way, great lawyers are highly, highly vulnerable to developing.  

We shall see very soon.  

MSK:  

This one could be a Big Cut.  

I read their motion.  I’m pretty sure the Supremes will have to decide their motion to stay sometime this week.  

Be on the lookout today or tomorrow for the subject states—and other Red states—to join in this lawsuit.   If that happens (not sure about the procedural hurdles to that In MIchigan, Wisconsin, Pennsylvania or Georgia—especially if a state’s governor does not consent) then most of the key issues look like they will be teed up for an overarching Supreme Court ruling.   Unlike other Kraken-type lawsuits, this one is brought by the Texas Attorney General.   That’s huge in my opinion.    There’s no crackpot component to this lawsuit, in other words.  

I suspect you will be disappointed in the ultimate Supreme Court ruling.   I suspect it will be very lawyerly and narrowly decided against Trump.   Probably 5-4 with a very unexpected crossover vote, plus Roberts trying to be a hero.   Just my intuition.  

I wonder why this wasn’t filed a month ago.   I’m afraid that might bite them.  

On 12/6/2020 at 4:07 PM, Ellen Stuttle said:

Might it have been that Napolitano wanted the appointment that Kavanaugh got?

Ellen

Ellen:  I’m not a mind reader, but I highly doubt a 69-70 year old man—who last served as state court judge 20+ years prior to the Gorsuch or Kavanaugh appointments, realistically expected a Supreme Court appointment.    The “bench” for potential all-star Supreme Court judges—both then and now, in conservative legal circles—is quite deep, something he undoubtedly knew.    I can’t even remember when an active state court trial judge, let alone a retired one, was appointed to the Supreme Court.  

There is always the possibility that Napolitano is simply voicing his honest opinion, i.e., no secondary motives.   That would be my default position, mainly because I don’t view reality as one big Soprano’s episode.  

Peter:  

I have taken a look at your website, which is fascinating.   Thank you for putting these materials in the public domain.   

I just read your translation of E's Letter to Menoikos and enjoyed it greatly.    Very interesting how much it reminded me of some Seneca's letter's (On the Shortness of Life?), at least in tone if not also in substance. 

Thanks again.   PDS

43 minutes ago, anthony said:

The consuming drive of the man was to create, in that, I agree with you that he was passionate - "excited" - about his innovative design for the building, hardly aware or caring of who the client was, the government. Just to see it made. What I take away about dynamiting it, was that for the purpose of art, her novel, a man's moral-values precedes and tops property rights. How else was Rand to make her crucial point, by having Roark doing anything tame, less dramatic and controversial? Simple creative licence. Not a moral blue-print for readers to copy or take literally..

Couldn't Roark have done a podcast or something instead? 

Michael:  I’m looking forward to this project of yours.  Cool stuff.  

On 12/19/2018 at 10:47 AM, Michael Stuart Kelly said:

Just to put a nice tail on this story:

 

Michael

 

As it should be.  

President Trump deserves a lot of credit for sticking with Judge Kavanaugh through that circus.  

I can’t think of any other Republican president, save possibly Reagan, who would have had the stones to do so.  

On 9/17/2017 at 3:28 PM, Jonathan said:

Is it even possible for this thread to get any more entertaining?

Perhaps!

What if another [hypothetical regular poster] happens to share Merlin's degree of visual/spatial/mechanical ineptitude, agrees with his nonsensical position on this thread, and would be willing to step up and help to argue Merlin's case?

That would be just freaking amazingly awesome!

J

I just had to come off my lurking bench to note that Jonathan’s rapier/rapist wit is only exceeded by his prescience.  

This is, by far, the most entertaining OL thread I have lurked at in some time.  

Do carry on!

21 hours ago, Michael Stuart Kelly said:

Let's start by identifying where the Peikoff quote came from.

I'm not in the habit of defending Leonard Peikoff, but if one is going to bash him, it would be a good idea to bash what he wrote and not something made up or gleaned from someone else.

I started by typing the following phrase into Google in quotes since the OP presented this as an exact quote from Peikoff: 

"Objectivism is an American philosophy"

Guess what? The phrase does come up and so does Peikoff's name. But look where--a libertarian blog with a discussion of Peikoff's book, Objectivism: The Philosophy of Ayn Rand). See here:

20140621 OBJECTIVISM

The blogger does not give his name (or if he did, I couldn't find it). But he did say on his "About Me" page that he is not young and is a Russian immigrant, and even served in the Soviet army at one time. He declared great love of America, but the point is, English is obviously not his original language. Look at the entire paragraph where the quote came from. The blogger is summarizing "Epilogue: The Duel Between Plato and Aristotle" from OPAR.

In other words, discounting the English mistakes, these are not Peikoff's words. They are the words of a blogger summarizing his understanding of Peikoff.

Since that is the only Google result giving the phrase, "Objectivism is an American philosophy," and it is about Peikoff's book, it's a pretty good guess that this is where the OP's quote came from.

Now let's look at what Peikoff actually wrote in his Epilogue:

That makes hash out of the OP's critique. And that also means that the OP attributed words and an idea to Peikoff that are not his, then bashed Peikoff for it, then postured as if he runs this place.

Gimme a break!

Come on, Marcus.

You can do better than that.

Take a deep breath, get a grip, then use your brain. You have a good one, so use it.

Michael

Thank you.  Well said.  

18 hours ago, william.scherk said:

Anyway, those minor points to one side, is there a defensible Objectivish position that would be outraged at executive kill orders by Obama, yet not those by Trump?

 

I can't imagine there could be, but I've been surprised on this thread before.   

In case it's not obvious, I really don't care whether the Left (or Right) is full of hypocrites.  Most people are hypocrites--especially when they enter the political arena.  

I'm not saying this to sound cynical, but simply stating an undeniable observation. 

4 hours ago, william.scherk said:

I am unclear on the concept: is this to be understood as a reference to assassination squads (in the USA) or is it in reference to targeted drone killings (primarily in Pakistan, Afghanistan and Yemen)?  Perhaps this has been discussed in detail elsewhere on OL.

How to compare the drone killings/black ops of the last Administration to those under the current Administration?

 

No, I'm talking about the drone killings. 

The same people who had fits over waterboarding have been largely silent about the drone killings.  Same for the women's marchers.  

One example:  one of my law partners is a really cool, outstanding attorney, who happens to be a lesbian.   She was out marching a couple weekends ago to protest Trump.   She knows I am not a fan of Trump, but she also knows I'm pretty libertarianish/conservative.   I saw her at the office as she was preparing to go march away.   I asked her very kindly why I had never noticed her marching against Obama's drone strikes against American citizens.   This was the first time I have ever seen her speechless.  No words. I almost felt sorry for her.

For background on this topic and the crocodile tears of those who think Trump's every move is an act of Great Tyranny:  see Kevin Williamson's National Review article here--but here is the money quote:    "Strange, that. But then, who complained when the Obama administration announced its policy of assassinating U.S. citizens as part of the so-called war on terror? A few libertarians, Glenn Greenwald, and one right-winger at National Review. So, to review: Stripping away the actual constitutional rights of U.S. citizens without due process through a secret military-intelligence process without appeal, trial, or representation? Hunky-dory. Ordering the assassination of U.S. citizens because one of them is, in your considered view, “the Osama bin Laden of Facebook”? Kill away. But telling a few Iranians that they are welcome to travel anywhere in the world they like except the United States?"  

You know the answer...

16 hours ago, Michael Stuart Kelly said:

Dennis,

In compensation, President Obama didn't mind killing you.

He was happy for the government to be of aid, even if you didn't want it.

Michael

MIchael:

You seem to forget:  President Obama only killed US citizens without due process when it seemed like a good idea.  So we always had that safeguard in place...

Wasn't it amazing when all the left-wingers were out protesting (sans pussy hats, mind you) the drone-killings of US citizens by executive fiat?   Made me proud to be an American. 

Their patriotism was on display for all the world to see,* and their commitment to constitutional principle brought tears to my eyes.  I remember the wall-to-wall coverage of the protests like it was yesterday...**

*Note to Baal--I'm being sarcastic.  None of these things ever happened.

**Note to Greg--yes, everybody gets what they deserve, every single moment of every single day in every single circumstance, and anybody who doubts this is a liberal, feminized weenie....   

13 hours ago, Michael Stuart Kelly said:

Neil Gorsuch for Supreme.

Trump keeping his promises.

Michael

This was an A+ selection. 

14 hours ago, Michael Stuart Kelly said:

As an addendum, Frankl wrote in Man's Search for Meaning:

This is the key he came to for spiritually surviving great hardship.

This doesn't have anything to do with Trump or his O-Land critics. I just think it's a cool quote.

 

(Another way of saying it is nature to be commanded must be obeyed, including spiritual nature as each understands it.)

Michael

Agreed.  A very cool quote.  Frankl was a closet Stoic in many ways.   That may be one reason why you like him...

18 hours ago, merjet said:

David Kelley on Trump's inauguration speech.

I found Trump's speech quite good.   I didn't listen to it, but read it.   I suspect it reads better than it sounds.    No matter your political views, his words were powerful and persuasive. 

I agree with much of what Kelley says, but it seems like criticizing Trump for not being Adam Smith on trade is a stretch.   Of course, he's not Adam Smith on trade. 

That's a major reason for his election. 

16 hours ago, Jules Troy said:

http://fineartamerica.com/featured/the-crow-glaring-jestephotography-ltd.html

I just wondering how many naysayers enjoyed their crow dinners after Trump won. ?

Mine was excellent, Jules.  

I had to choke it down with a stern glass of white wine, but hey, that's how these things go.

I must say I am finding DT's cabinet choices fascinating.   Lotsa Alpha males in that crew.   It's a good sign that DT is comfortable being around such folk.