☕️ SHOW ME ☙ Tuesday, February 7, 2023 ☙ C&C NEWS 🦠
The long-promised explainer of the most important lawsuit in the pandemic, or even in our lifetimes: Missouri v. Biden.
Good morning, C&C, and Happy Tuesday! Today I deliver on a long-overdue promise: to describe the Missouri v. Biden case, the most important civil rights case in our lifetimes. Let’s jump in.
🗞*WORLD NEWS AND COMMENTARY* 🗞
🔥 Two months ago, Tracy Beanz published an article in UncoverDC starting with this sobering statement: “The Missouri v. Biden case will go down in history as one of the most important civil liberties cases ever tried in a United States court.”
I agree with Tracy.
This will probably make someone’s head explode, but Missouri v. Biden is more important than Brown v. Board of Education. It’s more important than Plessy v. Ferguson or Washington v. Davis.
It’s so important that in a rational world, we’d get daily updates from every major media channel about the lawsuit, every middle and high schooler would be required to watch weekly videos about it, and there’d be daily panels of “expert” talking heads on every TV network (and social media channel) yammering away about every microscopic development in the case.
But since we live in Clown World, none of that stuff is happening. Plus — of course — it’s all disinformation anyway, and the federal government has banned disinformation, just like paper grocery bags. Or wait, are paper bags back now because of the turtles? It’s so hard to remember.
Anyway, it is past time to focus on this lawsuit of lawsuits.
The States of Missouri and Louisiana filed the case on May 5th, 2022. At the time, the states were represented by Solicitors General Eric Schmitt and Jeff Landry, respectively. I like to call it, “Show Me versus Shut Up!”
Although the list of defendants subsequently expanded — greatly expanded — here’s the original much shorter list from the first complaint. All these folks were sued in their official capacities: Joe Biden, Jen Psaki, Vivek Murthy, Xavier Bacerra, the Department of HHS, Anthony Fauci, NIAID, CDC, Alejandro Mayorkas, the Department of Homeland Security, Jen Easterly, the CISA, and Nina Jankowicz.
You probably recognize all of those names except maybe CISA (Cybersecurity and Infrastructure Security Agency), Jen Easterly (Director of CISA), and Nina Jankowicz (the singing, short-term director of the DHS’ Disinformation Governance Board, who previously worked for Ukraine’s puppet-president Zelenskyy, and I am not making that up).
🔥 To give you some flavor, here’s the very first paragraph from the 84-page Missouri complaint:
In 1783, George Washington warned that if “the Freedom of Speech may be taken away,” then “dumb and silent we may be led, like sheep, to the Slaughter.” George Washington, Address to the Officers of the Army (March 15, 1783). The freedom of speech in the United States now faces one of its greatest assaults by federal government officials in the Nation’s history.
Old George wasn’t wrong, either. Just look at what’s happened over the last three years. Sheep to the Slaughter, indeed.
While I have often seen surgical hyperbole used in lawsuits before, I don’t think Missouri v. Biden’s first paragraph is overstating the case. Future generations will study this case, considering it a critical turning point in the Nation’s history, whatever the outcome.
The lawsuit’s subject is how the government violated Americans’ First Amendment rights by censoring people during the pandemic. It’s that simple. Or, it SHOULD BE that simple. The plaintiffs argue that the government both DIRECTLY censored Americans and especially, INDIRECTLY censored them through bullying, bribing, hectoring, nagging, and setting up one-way “partnerships” with big tech companies like Twitter, Facebook, and YouTube.
The case has been running for nine months now and as of this morning, there are 184 entries on the docket. No trial date has been set. In my experience, that’s about middling docket activity for a lawsuit with so many parties. So far, almost all the action in the case has been over discovery, both paper discovery and oral depositions, which the plaintiffs have been enthusiastically pursuing with passion and verve.
Meanwhile, the government has been doing everything that IT can to obstruct, delay, and obfuscate. It has objected to nearly every discovery request, requiring a plethora of hearings and rulings, and the case has even been to the Supreme Court — more than once! — over discovery disputes.
Most recently, the Supreme Court had to weigh in on whether the plaintiffs would be allowed to take Jen Psaki’s deposition AT ALL. The government argued she is too important and too busy for deposition, even though she doesn’t work there anymore. Most commenters missed how unique was the Supreme Court’s involvement in this argument. Normally, even district court judges consider discovery disputes too pedestrian to clog up their docket, and often assign those kinds of arguments to lower-status clerical judges called magistrates.
Not this time.
The notion of the Supreme Court adjudicating garden-variety discovery disputes is insanely wild. I’m not saying it’s never happened, but it’s a unicorn.
🔥 Litigating with the government is like playing soccer with an elephant. So far, the government has succeeded in delaying the case. It can just step on the ball! It has an unlimited budget for litigation and a million ways to dump container loads of sand into the legal machine — and it is using all of them.
In the normal litigation flow chart, the first thing that usually happens in nearly every lawsuit is the defendants test the case through a motion to dismiss before they answer the complaint. It’s the same in this case, but it is happening in super slow motion.
After nine months of frenetic litigation, the defendants’ motion to dismiss still remains pending. In July, the government first moved to dismiss the case, for lack of standing and lack of jurisdiction, two well-worn legal chestnuts. So the original plaintiffs wisely added some new additional plaintiffs, people who were directly and individually harmed by government censorship activities.
On August 2nd, the plaintiffs filed an amended complaint, now swelled to 118 pages, and changed around some of the defendants, like swapping Jen Psaki for Karine Jean-Pierre, and adding the Census Bureau, the Department of Commerce, and the White House’s National Climate Advisor (just, why??). The new complaint added the following censored Americans as additional plaintiffs, most of whom you will recognize: Dr. Jay Bhattacharya, Jill Hines, Jim Hoft, Dr. Aaron Kheriaty, and Dr. Martin Kulldorff.
Jim Hoft owns the Gateway Pundit, a conservative news website. Jill Hines is a health freedom activist who co-directs Health Freedom Louisiana. You know the rest. Each of these folks was directly targeted by federal officials for silencing during the pandemic.
The amended complaint resolved the government’s initial arguments over standing and jurisdiction by adding those well-known, individually-harmed plaintiffs. Then in October, based on evidence obtained in ongoing discovery, the plaintiffs amended their complaint again, adding more allegations and a LOT of new defendants, including the now-infamous FBI agent Elvis Chan. The second amended complaint clocks in at 164 pages long — nearly double the size of the original complaint.
It’s worth listing all the case’s current defendants, who were all included because factual discovery obtained by the plaintiffs showed their crooked little fingers in the censorship pie. I realize it’s a long list, but it’s worth reading through so as to know the enemy. The list of defendants is a devil’s scorecard of weaponized agencies and bad actors.
Reading the list, you can appreciate what we’re up against.
The Government Agency defendants are: NIAID, CDC, Department of Homeland Security, US Census Bureau, Department of Commerce, Homeland Security, CISA, DOJ, FBI, FDA, Department of State, Department of Treasury, and the US Election Assistance Commission.
The Individual government defendants are (in their official capacities): Joe Biden, Karine Jean-Pierre, Vivek Murthy, Xavier Becerra, Tony Fauci, Carol Crawford (Digital Media branch of CDC), Jennifer Shopkorn (Census Bureau), Alejandro Mayorkas (DHS), Robert Silver (undersecretary of strategy — DHS), Samantha Vinograd (senior counselor, national security — DHS), Jen Easterly (CISA), Gina McCarthy (White House climate advisor), Nina Jankowicz (Disinformation Board), Andy Slavitt (White House covid coordinator), Rob Flaherty (White House Digital Strategy director), Courtney Rowe (Strategic Comms, White House), Clarke Humphrey (covid digital director, White House), Benjamin Wakana (covid strategic comms, White House), Subhan Cheema (covid strategic comms, White House), Dori Salcido (covid strategic comms, White House), Timothy Manning (covid supply coordinator), Dana Remus (Presidential counsel), Aisha Shah (White House partnerships), Laura Rosenberger (special ass’t to President), Mina Hsiang (digital services — OMB), Laura Dehmlow (FBI foreign influence task force), Elvis Chan (FBI, San Francisco), Jay Dempsey (CDC social media team), Kate Galatas (CDC Deputy Comms Director), Eric Waldo (Surgeon General’s office), Yolanda Byrd (HHS digital engagement team), Christy Choi (HHS comms office), Tericka Lambert (HHS digital strategy), Joshua Peck (HHS public engagement), Janell Muhammed (HHS digital director), Matthew Masterson (DHS/CISA), Lauren Protentis (CISA), Geoffrey Hale (CISA), Allison Snell (CISA), Kim Wyman (CISA-elections), Brian Scully (CISA/DHS), Zachary Henry Schwartz (Census Bureau—comms), Lorena Molina-Irizarry (Census), Kristin Galemore (Census—faith based partnerships), Erica Jefferson (FDA—external affairs), Michael Murray (FDA—comms), Brad Kimberly (FDA—social media), Leah Bray (State Dept—global engagement), Samaruddin K. Stewart (State Dept—global engagement), Daniel Kimmage (State Dept—global engagement), Alexis Frisbie (State Dept—global engagement), Wally Adeyemo (Treasury—Deputy Secretary), Mark A. Robbins (Election Assistance—executive dir.), and Kristin Muthig (Election Assistance—comms dir).
That’s a lot, right?
I don’t need to tell you that putting together a 164-page complaint with this many defendants, while up against experienced government lawyers playing with unlimited defense budgets, takes ENORMOUS effort.
It is hard to imagine a legal effort more massive, meaningful, or intense than this case.
🔥 In late November, the government filed a new motion to dismiss the plaintiffs’ second amended complaint, now for lack of subject-matter jurisdiction (the court lacks authority to hold the government to account), and for failure to “state a claim” (the government can’t be sued for these types of claims).
The plaintiffs’ current deadline to respond to the government’s motion to dismiss is tomorrow, February 8th. They could either respond or they could ask for more time.
It’s significant that it has taken this long to even get the motions to dismiss filed. The motion to dismiss stage is the very FIRST stage in a lawsuit. It’s normally resolved within a month or two of filing. Significantly, the court is not allowed to set a trial date until the government answers the complaint, which itself won’t happen until after the motion to dismiss has been completely resolved. I would expect that if the government loses, it’ll be headed back to the Supreme Court again.
So, it’s going to take a while.
Meanwhile, discovery continues. For some reason, you’ve heard a LOT about the Twitter files, but not much about the Missouri files: the most damning evidence about how the federal government has been weaponized against Americans has fruited from the incredible efforts of the Missouri v. Biden team.
The plaintiffs’ investigators have unearthed evidence of government-sponsored censorship starting well before the pandemic:
For example, we now know that since 2018 — before the pandemic — parts of the federal government regularly met with the social media platforms to control “disinformation”:
🔥 Recently there was a significant change in the plaintiffs’ attorneys. On January 3rd, Eric Schmitt, Missouri’s original lead counsel, was sworn in as a new US Senator, and assigned to the Senate Armed Services Committee, the Senate Commerce Committee, and the Joint Economic Committee:
Schmitt, who has keen insight into this problem, is focused on trying to shatter the unholy alliance between big tech and the federal government:
🔥 In Missouri v. Biden, we have the best possible chance for a fair trial. In various orders, mostly related to discovery, the federal judge on the case has shown he “gets it.” He understands the issues’ breadth and seriousness, and probably the case’s historic nature.
In other words, we have everything we could hope for. If we can’t win this one, the case likely cannot be won at all.
Tracy Beanz ended her article with the following short paragraph. She sounds like she’s exaggerating, but I assure you she is not:
This case has brought to the fore a wide-reaching, insidious plot to weaponize private business in a fascist attempt to stifle the speech of American citizens. Not only is it the stifling of speech, but it is a weaponization to ensure the American people are DECEIVED by government-sponsored propaganda. This isn’t surface level; these actions have swayed elections and caused the DEATH of untold numbers of Americans. It has polarized our society. It is evil. It must be stopped.
Throughout history, governments have ALWAYS wanted to control their citizens’ speech. Speech is powerful. It topples governments when enough people are persuaded to throw off the shackles of ineffective leadership. The worse leadership gets, the more a government wants — NEEDS — to crack down on citizens’ speech, to cover up its failures.
The Founders had gone through all this before. That’s why they included as the first and highest right in the Constitution the right to free speech and assembly. Their philosophy — eloquently expressed in the Declaration of Independence — was that government has no inherent right to rule, and if government becomes despotic, corrupt, or ineffective, it has to go.
In the balance between people criticizing the government and the government’s right to maintain order, our Founders intended for critics to have their say. If our three-way federal structure is intended to balance the powers of government, free speech rises far above that design.
Free speech is the paramount power for balancing powers.
That’s why Missouri v. Biden is so important. Given what we now know — what the pandemic has exposed — two things MUST happen, or everything else is in vain: (1) the federal government must cease and desist from its attempts to control Americans’ speech, and (2) there must be accountability for past violations, to teach government actors a lesson and discourage future actors from similar excesses.
I am optimistic. The wheels of justice turn slowly, but they turn inexorably.
Have a terrific Tuesday! I’ll see you all back here tomorrow to resume our regular roundup programming.
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As a multi-party civil litigator for 30 years, this overall scenario resembles much of what I've done/seen. Tremendous delay is built into the process. Superhuman patience is required. I hope that the plaintiffs have the stamina to stay with this.
B/c the stakes are much higher than any case I've done.