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☕️ Coffee & Covid ☙ Thursday, September 22, 2022 ☙ UGLY FACTS 🦠
It's getting ugly out there.
Good morning, C&C! It’s a crisp, cool Thursday here in Florida, and I have a terrific roundup for you today: a Louisiana court strikes another Biden vaccine and mask mandate; the Eleventh Circuit torpedos Trump’s special master and I wonder about the strategy; Biden and Zelensky discuss peace in Ukraine at the UN; Biden in the back; and Gavin Newsom reveals his awesome plan to repopulate California.
🗞*COVID NEWS AND COMMENTARY* 🗞
🔥 A Louisiana federal court just struck down the so-called “head start mandate,” which required vaccination and mandatory masking of all teachers and staff participating in the federal “head start” program.
You know it’s going to be good when the judge starts the order by quoting James Madison: “The accumulation of all powers, legislative, executive, and judiciary, in the same hands … may justly be pronounced the very definition of tyranny.”
The 27-page opinion ends issuing a permanent injunction against the program’s vaccine and mask mandates in the 24 plaintiff states (Louisiana, Alabama, Alaska, Arizona, Arkansas, Florida, Georgia, Indiana, Iowa, Kansas, Kentucky, Mississippi, Missouri, Montana, Nebraska, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Tennessee, Utah, West Virginia, and Wyoming). Add Texas and you have a pretty good starting list for a “Free States Coalition.”
This is great news, and congratulations to the attorneys litigating this case. What’s frustrating, though, is that the Biden Administration surely knew that its executive orders and unilateral actions were plainly unconstitutional, but they did it anyway, knowing how much time and effort it would take to unwind their illegal actions and how many people would go ahead and get jabbed in the meantime.
On the other hand, I did NOT see any corporate media whining about activist judges and how the decision is going to wind up killing kids. We are way past that point now. Which is also great news.
🔥 Well, I usually hate to say I told you so, but I especially hate to say I told you so in this case. Even though 10 state Attorneys General filed amicus briefs supporting Trump, the 11th Circuit ruled against him yesterday, taking the special master right off the table when it comes to the so-called ‘classified documents.’
In other words, the FBI may now continue its investigation and the special master will NOT get to review the classified documents.
There’s a lot I could say; the 11th wrote a scathing 29-page order that agreed with the government in every aspect, right down the line. Since I practice in the 11th circuit, I will be circumspect about saying anything that could be considered critical of the very fine and nonpartisan judges who make up that court.
I’m going to cite only one paragraph from the order, a key paragraph that I believe is the linchpin in the 11th’s reasoning. If you pulled this fact out of their order, the whole thing would crumble like an overbaked scone. And this one fact is indisputably true. In a section discussing whether Trump might have a personal interest in the seized documents, the judges wrote:
Plaintiff suggests that he may have declassified these documents when he was President. But the record contains no evidence that any of these records were declassified. And before the special master, Plaintiff resisted providing any evidence that he had declassified any of these documents.
It’s true. All Trump has done so far is “suggest” that he declassified… some documents. Maybe. Or maybe not. You never know. And when the special master prompted Trump for an affidavit attesting that he DID declassify, Trump’s lawyers declined to provide one. So … which is it? Who knows.
I have a bunch of litigation shorthand for strategy that I refer to with my team. Two of my terms come to mind in this situation. First, Trump’s waffling is what I call an “ugly fact,” or sometimes a “dead baby.” That sounds morbid, but it’s the dynamic that occurs in any case where a baby died. That fact, that a baby died, is a fact that is SO ugly, it distorts everything else in the case. It always becomes the beating heart of the lawsuit.
In a jury trial, for example, if the plaintiff’s baby died, you can bet the plaintiff is going to get some money. I don’t care how good the defenses are, or even how bad the plaintiff’s lawyer is. The jury won’t get past that a tiny human with infinite possibilities was snuffed out. It’s just so unfair BY ITSELF that it practically doesn’t even matter what else happened.
Sometimes I just call it an “ugly fact,” which is something that is definitely going to snag a judge’s attention, irritate her, and be something the judge just can’t get out of her mind. You just know, right from the beginning of the case, that the ugly fact is going to be somewhere in the final order.
Trump’s unwillingness — for whatever reason — to say, one way or the other, whether he declassified, is an ugly fact. By NOT saying, he’s kind of saying that he DIDN’T declassify. And worse, he’s annoying the judge by refusing to admit that and moving on. At least, that’s how it looks to the judge. It’s that simple.
The second term from my personal lexicon that I think applies here is, ‘self-inflicted injury.’ Because Trump could SO EASILY eliminate the ugly fact, but doesn’t, it is his own fault, or at least, his choice. So his own choice to waffle is making his own case a lot more difficult. It’s a ‘self-inflicted injury.’
Maybe there’s a really good reason, but I don’t know what it could be.
My reading of the applicable law is that Trump needn’t do anything at all to declassify a document. In my view, all he has to do is DECIDE, and then act in conformity with that decision. So, I believe that if President Trump moves a classified document twelve inches, say moving it one foot out of the secured area into the common area, that’s all he has to do to declassify.
Taking the documents to Mar-a-Lago is an act in conformity with his decision to declassify. To me, it’s that easy.
I base my conclusion on that hypothetical I suggested when I first analyzed this problem. Here it is again. Suppose there’s a global diplomatic emergency. Major powers are about to go to war. Trump is in the Oval Office, intently reading a brand-new classified report that could defuse the entire situation: our intercepts prove a diplomat was really killed by an angry prostitute, not an assassin. Trump has minutes to spare before missiles fly. So the President jams the report in his jacket pocket, hops in the Beast, and races to the Serbian embassy, where he personally presses the report into the ambassador’s hands. And just like that, war is averted.
You with me so far? Believe me, the President is in the clear. He didn’t break any laws. But let’s take it up a notch. Now imagine the same scenario, but also imagine that Serbia is a U.S. enemy. So Trump is giving top-secret material directly to an enemy of the United States without consulting or even telling anybody.
I think it still doesn’t matter; I STILL believe what the President did in the hypothetical is 100% legal. It HAS to be, or the President would be completely hamstrung, especially in emergency situations.
Now ask yourself exactly WHEN in the hypothetical timeline did Trump “actually declassify” the Serbian prostitute intel? Was it when he handed the classified report to the Serbian ambassador? Was it when he got in the Beast with the report? Was it when he jammed the report in his jacket pocket?
Or, as I believe, was it the moment when, while he was reading the report and realizing what he needed to do, the President silently made a decision to declassify? That’s what I think. I think all it takes is a decision. The President doesn’t have to tell anybody until he’s ready to disclose. That’s the only thing that makes sense.
I assume Trump’s lawyers have a good reason for playing it so coy, but I have no idea what they’re thinking. Maybe Trump is worried that if he has to make a list of exactly what he declassified, the FBI could then magically produce some documents not on the list. Or maybe it’s that Trump took some actions not in conformity with declassification, like asking the FBI to redact parts of the reports, and has to explain those actions.
Those issues might be thorns, but they are easier to handle than the entire cactus of doubt that Trump’s waffling has produced.
But what do I know? I’m just a lawyer, not a … hey, wait a minute!
🚀 After the Russians declared a massive new mobilization yesterday, the twin members of the dynamic duo, Bat-Biden and Zelensky-hood, both mentioned the prospect of peace while speaking at the UN’s general assembly yesterday.
Fox News ran a story yesterday headlined, “Ukrainian President Zelenskyy Lays Out ‘Peace Formula’ to End War in Country, but Says ‘Russia Wants War’.” He laid out five aspirational peace-deal categories, like “punishment for aggression,” and “restoration of territory,” that were more generalized talking points than any kind of actual offer.
It was a different tone than the usual triumphalist braggadocio that we’ve always heard before. Interestingly, the trained seals at the UN gave Zelenskyy’s ‘peace’ speech a standing ovation. I guess everybody wants peace.
Well, everybody except NATO, the military-industrial complex, Klaus Schwab, and the deep state.
For his part, old man Joe also obliquely mentioned resolving the conflict. He rambled forgettably about the UN’s glorious high-minded purposes, to be “united in their commitment to work for peace.” Regarding the war, Biden apocalyptically announced, “this war is about extinguishing Ukraine’s right to exist as a state — plain and simple.” But Biden said the U.S. wants the war in Ukraine to “end” on “fair terms.” He didn’t specify WHAT terms.
Joe ended his speech with a gaffe, of course, saying “Thank you for your tolerance listening to me. I appreciate very much.”
There was polite applause but no standing ovation for Joe. Corporate media was curiously quiet about Joe’s big U.N. speech. For some reason.
🔥 In more Biden news, the leader of the free world was seated at the back of the Royal funeral, packed in between the Czech Republic’s Prime Minister and the president of Poland.
C’mon, man. There’s no way to take this but as a deliberate, quite British, insult. I heard the Brits explained that Joe was in the back because the front section was reserved for relatives and royalty, but PLEASE. Nobody believes that Britain’s most important ally would be packed in, fourteen rows back, behind the Polish president. The Polish president isn’t a relative or royalty either. So Biden wasn’t even in the front of the back group.
Corporate media has been pretty quiet about this story, too. Too close to the midterms, I guess.
🔥 In the funniest story of the day, and I am not making this up, delusional Governor of California Gavin Newsom actually blamed people fleeing California on the “visa policy in the Trump administration.” Hahahaha!
Newsom also emphasized, “This whole damn border debate is made up. It’s made up!” That will be a relief to the folks in El Paso, who are obviously just imagining things.
He also claimed, “our formula for success is getting first round draft choices from around the world.” Which I THINK means that California’s growth strategy is attracting foreigners rather than attracting U.S. citizens. Haha, they gave up on convincing informed Americans to move there. But California’s net migration proves the “first round draft” plan is obviously not working, so even foreigners don’t want to move there.
Best and brightest!
Have a terrific Thursday, and I’ll see you back here tomorrow for more.
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