FOX TRAPPED IN THE COOP; CHICKENS RUN FREE!

Fox is screwed. And it's about time.

Liberal Supreme Courts since 1964 have consistently erected substantial barriers to protect libelous speakers from attack by victims seeking compensation for defamatory statements. The construction project was entirely political. The Court's justification for adding protective walls around defamers was always "The First Amendment". But in reality, the Amendment provided no real support for those hurdles. It simply says Congress shall make no law abridging the freedom of speech or of the press. 

The Supremes nevertheless went on a building spree, starting with an effort to protect the New York Times from a $500,000 libel verdict affirmed by the Alabama Supreme Court arising out of a civil rights dispute.

In that case, the Court manufactured the "actual malice" requirement. They decreed that in order to succeed, the libel plaintiff had to prove the defendant published its statement with "actual malice." That is legal mumbo-jumbo for saying the defendant knew that its statement was false, or that it had serious doubts about its truth and recklessly published it anyway.

This restriction was originally applied only to plaintiffs who were "public figures," but the definition of that phrase has been so expanded over time that it has become virtually meaningless.

But that wasn't enough: at common law, in a civil case questions of fact are to be decided using a “preponderance evidence” standard,  (i.e. there is more evidence on one side of the scales than the other, no matter how slight the difference may be). But the Court then added a new requirement: in a case where a plaintiff had to prove actual malice, he had to do so by something called  "clear and convincing evidence." More legal mumbo-jumbo. That is not quite the criminal standard of "beyond a reasonable doubt" but it's higher than a preponderance of evidence. Bottom line, the Court provided another barrier to a plaintiff seeking to gain compensation for having its reputation destroyed by an untruthful speaker. ( I will give a nickel to any reader who finds language in the First Amendment that supports this change.)

And when those fences were deemed insufficiently protective to libelous speakers, the Court imposed yet another barrier: even when a jury found actual malice by clear and convincing evidence, an appellate court was entitled to review that finding "de novo." That means they could look at the proof and reach their own conclusion, whether it agreed with the jury or not. So a libel victim had not only to persuade a unanimous petit jury of six or more, it then had to persuade a new jury consisting of appellate judges. (And perhaps ten or more of them in an en banc appeal!)  

This burden, in my judgment, was a gross violation of the Seventh Amendment, which reads:

 "the right to trial by jury shall be preserved, and no fact tried by a jury shall be otherwise re-examined in any court of the United States than according to the rules of common law." 

It is difficult to see how the Court could find a common law exception justifying a de novo appellate review of the jury's actual malice finding, inasmuch as the requirement of an actual malice finding didn't exist at common law. It was invented in 1964!

But despite all of those protective barriers, Fox has managed to climb the chicken wire and trap itself in the coop.  Its promotion of the Big Lie has now been revealed to be willfully and knowingly dishonest. Not only are there texts among its broadcast stars admitting their "Big Lie" guests were unreliable "nuts", none other than Chairman Rupert Murdoch has apparently admitted under oath that he believed the election-denier guests were liars, and he could have stopped the Big Lie promotion on his network but didn't do so. 

Why? 

Money, money, money.

I believe the trial jury will conclude the failure to stop promoting the Big Lie was entirely financial, and Fox feared that if it stuck to the truth, it would lose its audience. 

The irony is that if the jury concludes Fox libeled Dominion Voting Systems (the plaintiff in this case and a major victim of the Big Lie), with all the help from prior liberal Courts, Fox is still screwed. The current uber-conservative Supreme Court has nowhere to go because if, on appeal, it applies its conservative constitutional tests of originalism and textualism, plaintiff's case is much stronger! 

(By the way, Dominion seeks $1.6 billion in compensatory damages. And there is no cap in Delaware on the award of punitive damages!)

So we can sit back and enjoy the humiliation of Fox trying to explain how the deception of its audience is speech that promotes First Amendment values. (Not to mention the damage to basic Constitutional values involving the peaceful transfer of power pursuant to the vote of the populace.) 

A bientot!

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HERE WE GO AGAIN!

  So former Vice President Mike Pence, on this second week of February, 2023, received a grand jury subpoena in the federal criminal investigation of the Capitol insurrection riot that occurred in January 2021. This, we are told, is after weeks of "negotiation" with the former vice president and his team. So much for the swift administration of justice.

And let's not kid ourselves. Just because Pence got a subpoena does not mean he will promptly to comply with it. Unless he is already "in the bag" and this is just cosmetics, he might, like others have done, litigate, asserting "executive privilege."

More bullshit. There ain't no executive privilege here. The Supreme Court has made it abundantly clear, that with the exception of specific privileges, such as lawyer/client, and priest/penitent, etc., executive conversations that do not refer to diplomatic or military matters must yield to the criminal process. Pence and his team know this. All the MAGAs do, and screw around to show they are good Trumpists, and pour sand into the justice system machinery to accomplish delay, delay, delay.

While I am not a fan of this Supreme Court, it has not yet reversed U.S. v Nixon -- a decision, you will recall, that required the sitting president to turn over to a prosecutor, evidence so damaging to the president that it led to his resignation.

The Supremes could not have been clearer. Nixon's defense of executive privilege covering his conversations with his chief of staff was soundly and explicitly and unanimously rejected. 

Indulge me, please, while I quote some key words from this unanimous decision about the limits of what we now call "executive privilege"):

          "Neither the doctrine of separation of powers, nor the generalized need for confidentiality of high-level communications, without more, can sustain an absolute, unqualified presidential privilege of immunity from judicial process under all circumstances …  . Absent a claim of a need to protect military, diplomatic, or sensitive national security secrets, the confidentialities of presidential communications is not significantly diminished by producing material for a criminal trial … . 

When a claim of presidential privilege as to materials subpoenaed for use in a criminal trial is not on the ground that military or diplomatic secrets are implicated… the president's  generalized assertion of privilege must yield to the demonstrated specific need for evidence in a pending criminal trial ... . The allowance of the privilege to withhold evidence that is demonstrably relevant in a criminal trial would cut deeply into the guarantee of due process of law."  

Presumably, the Pence subpoena concerns two subjects: Trump's failure to turn over classified documents and Trump's connection to January 6, not documents or discussions about military and diplomatic secrets. So what's left? The real possibility that this is showtime, that's what. Pence has already written a book about Jan 6 and there is a real possibility that he is already in the bag: he is going to tell all, and wants the cover of a judge's order to appeal to the MAGA faithful who might go to Pence in the primaries once it becomes clear that Trump is history. Is Pence a likely winner of that lottery? I doubt it, but when you are that close, ya chase all possibilities.

Added to all this is yesterday's news that Pence's lawyers have also received grand jury subpoenas. A package deal?

One can only hope this is the final act in this drama. If the team of Smith and Garland doesn't get its act together in the immediate future, they are going to screw up this prosecution. Lots of reasons that I need not go into now, but they are already a year late and an effective prosecution will not stand further delay. Now or never, kids.

Lock em up!

A bientot.

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IT'S NOT A BIRD, IT''S NOT A PLANE, IT'S ALVIN BRAGG!

For those of you unfortunates who do not live in Metropolis, you may fail to appreciate a tradition of Manhattan District Attorneys who have served long terms of office. Frank Hogan served for 31 years. The next elected district attorney Robert Morgenthau served for 34 years and he was succeeded by Cyrus Vance Jr. who served for 11 years. Not everybody appreciated everything each one of them did, but they were generally recognized as competent. 

But now we come to the present day and on January 1, 2022, our newest elected District Attorney, Alvin Bragg, proceeded to enrage a good chunk of law enforcement officials as well as civilians, by adopting policies that progressives had been urging. Indeed the governor threatened to unseat him. Bragg solved his immediate problems by surrendering his principles and abandoning the new policies.

He is now engaged in a scandal in which his office lost a major case against an allegedly dishonest cop by reason of Bragg's failure to make discovery available to the defendants. He is trying his best to change the subject in the press. Well, the subject in the press is changed, but not to his benefit.

While the Attorney General of the State of New York, Leticia James, (who basically has no prosecutorial powers) worked diligently to prove a string of illegal activities by Donald Trump and his organization, Bragg was indifferent. 

His predecessor, Cyrus Vance, was not.  Seeing the difficulty of putting together a solid case against the slippery former president, Vance used assets that were not, at least at first, official employees of the District Attorney's Office. One of them, Mark Pomerantz, a retired partner of Paul, Weiss, Rifkind, Wharton & Garrison (my alma mater), together with a senior member of Vance's staff, Carey Dunne, developed a case against Trump based on a string of instances in which Trump, to advance the credit-worthiness of his properties, grossly overstated their value. District Attorney, Cyrus Vance said  "Let's go with it," but before the matter could be put to a grand jury, Vance's term ended, and Alvin Bragg took office on January 1, 2022.

 Because the theory developed by Pomerantz and Dunne ran jury risks against defendant Trump, Bragg flinched and refused to let the prosecutors continue. They were outraged but could not persuade Bragg to pursue an indictiment of Trump. 

So, when it came to Trump, Bragg did nothing whatsoever.

But Pomerantz refused to abandon history. He kept a diary, and when he saw that he could not persuade Bragg to prosecute the former president,  Pomerantz wrote a letter of resignation in which he told Bragg, 

"I believe that Donald Trump is guilty of numerous felony violations … . His financial statements are false and he has a long history of fabricating information relating to his personal finances and lying about his assets to banks, the national media, counterparties, and many others, including the American people. The team that has been investigating Mr. Trump harbors no doubt about whether he committed crimes – he did."

In that letter, Pomerantz also told Bragg that his predecessor Cyrus Vance had been intimately involved in the investigation, sat in on witness interviews, received regular reports about the progress of the investigation, and concluded that the facts warranted prosecution. Vance directed the team to present evidence to a grand jury and seek an indictment of Mr. Trump as soon as reasonably possible

But Bragg killed the prosecution despite the Pomerantz team's assurance that they had evidence "sufficient to establish Mr. Trump's guilt beyond a reasonable doubt". Pomerantz added that while no case is perfect, and every jury case involves some risk, his team believed that a failure to prosecute presented greater risks of public confidence in the fair administration of justice than a bad jury verdict. This was especially true given the nature of this defendant. The Pomerantz team believed "the bedrock proposition that no man is above the law requires that this prosecution be brought even if a conviction is not certain."

Pomerantz concluded that for several reasons, a delay would make the prosecution ultimately impossible and "Mr. Trump will not be held fully accountable for his crimes. I have worked too hard as a lawyer, and for too long, now to become a passive participant in what I believe to be a grave failure of justice. I therefore resign from my position as a special assistant district attorney, effective immediately."

Bragg still did nothing to prosecute Trump. 

But later that year Bragg learned that Simon and Schuster was going to publish a book entitled "People vs. Donald Trump," in which Pomerantz set out details of his frustration with Bragg's failure to pursue what he and his team saw as conduct that would lead to a Trump conviction. Bragg suddenly discovered that if and when the public learned those details, the world would see Bragg for what he was -- an empty suit.  So to change the subject, Bragg just last week announced that he was going to create a special grand jury to investigate the now-ancient hush money payment that Trump is alleged to have given to Stormy Daniels to hide his adulterous affair prior to his 2016 campaign.

From a NY prosecutor's point of view, the "Hush Money" case is a stinker. Without going into lengthy legal complications, there are two steps to it: the first is that the $130,000 was not paid directly by Trump. It was paid by Michael Cohen who was then reimbursed in 12 monthly "retainer payments.'' In New York, falsification of company books is a low-level crime and only becomes a meaningful felony if done in connection with another crime. Making a hush money payment by itself is not a crime in New York State, and the connected crime is a dubious one. Moreover, a leading prosecution witness is a felon who was convicted of perjury! 

But Braggadocio Bragg, now full of new-found prosecutorial piss and vinegar, wants the media to play up the Hush-Money announcement instead of focusing on his previous failure to pursue Trump. He seems to have discovered a newfound prosecutorial vigor. (Is there a new drug, a  prosecutorial Viagra that, until now, has been unknown to the general public?). To make his new-found red cape even more visible, Super- Bragg has taken a leaf from Trump's playbook and threatened to sue Pomerantz and Simon & Shuster.

It's not a bird, it's not a plane, it's not even a prosecutor. It's just Alvin tryin' to flap the arms of his empty suit jacket.

Pathetic.

Btw, Pomerantz will be on 60 Minutes tomorrow (Sunday). I have read the book. I can't wait.

A bientot.

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