Friday, August 14, 2020

"Sir, This Is A Taco Bell..." Part Deux.

In what now is a garden variety New York state financial crimes grand jury subpoena matter, as remanded from the Supremes -- and pending in federal trial level courts in Manhattan, the able lawyers for Cyrus Vance, Jr. (including an excellent assist from a renown Duke University law professor) have once again answered Trump's silly arguments, on the subpoena for records, issued to a third party, in a regular felony grand jury proceeding.

The letter nicely summarizes the People's arguments (a quick three page read), but we will also provide a link to the longer more technical full thirteen page memo of law. Do read it all -- but here is a bit, from the memo:

. . . .Focal points of an investigation may sometimes be inferable by reviewing subpoenas issued at various points in that investigation. But singling out one particular subpoena, and declaring that it must necessarily define and delimit the scope of a grand jury’s inquiry, makes no sense at all, particularly in a months-long financial investigation. Grand juries routinely issue subpoenas in an iterative process, seeking different records from different parties and from different date ranges, with later subpoenas building on new information and leads generated from returns on earlier subpoenas. In other words, the inference that any one subpoena in this case defines the investigation is simply not reasonable. . . .

And. . . . from the letter, I particularly enjoyed this bit:

Trump will lose. America, and the rule of law, will win. It is just that the steel wheels of justice grind. . . very slowly. But they do grind, very finely -- to be sure. And, in the end, he will be naught but a fine gray crumbling powder, blowing in the wind. . . Onward.


Interstellar Science: Mighty Betelgeuse May Be Dimming, Anew, Here In August 2020... Super-Nova Soon?

All stars, it seems, hum. . . to a rhythmic celestial vibration, of sorts -- the melody of which most of us are only dimly aware. Especially so, the hottest. . . deep copper-red ones.

We have mentioned this oddity before -- most recently, on Valentine's 2020 -- and now there is a pretty clear scientific explanation for the February 2020 observed data.

Since Betelgeuse of late has been very close to our own Sun's corona in the sky, from the angle of our Earth observatories, we haven't had data on it, since early summer. But STEREO, our space based telescope was. . . watching it.

And it seems to have begun a noticeable dimming, again here in late July to August. We will be able to see it from Earth based telescopes, starting in late August -- but this "dimming return period" is much shorter than those previously-observed (a 400-plus day cycle -- while this is less than 120 days) between such events. So it may be that these "super flares" are accelerating in frequency.

Here's just a bit, from (do go read it all):

. . . .STEREO’s measurements revealed that Betelgeuse is dimming again — an unexpected development so soon after its last dim period. Betelgeuse typically goes through brightness cycles lasting about 420 days, with the previous minimum in February 2020, meaning this dimming is happening unexpectedly early. These observations were reported by the science team via The Astronomer’s Telegram on July 28, 2020. This is an intriguing phenomenon that scientists will study with additional Earth-orbiting and ground-based observatories when Betelgeuse returns to the night sky in late August. . . .

We once again needed to get well off-world, this morning -- with all the ugliness that is Trump. Even so, our children -- or theirs -- may yet see this mighty star go supernova, in their life-times. And that makes me grin -- as they will see perhaps a year or more of two very bright stars -- even in daylight.


Thursday, August 13, 2020

Born: Oakland, California: October 20, 1964. End Of Trump's Birther-isms, 2020 Edition.

It is deeply lamentable. . . that I even need type this.

The sitting president just tweeted that he has "no idea if it's true -- but I heard" that Sen. Kamala Harris may not be a citizen. He cited John Eastman, a crackpot, that he called a "highly qualified, very talented lawyer" to say she might not be eligible. Rubbish. Complete. . . rubbish.

She is eligible. She's shown her long form birth certificate, for years, going all the way back to her CA AG and Senate run days. The 14th Amendment to the US Constitution provides:

". . .All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. . . ."

Trump is a dyed in the wool racist pig -- and we will bury him at the polls, in November 2020. Out.


So... Trump Admits He Is Now Directly Resisting Funding The Post Office -- To Suppress Mail-In Voting. That's A 10-Year Felony Under 18 USC §§ 241 and 242.

I will make this short -- and direct.

Maybe he --and/or his chuckle-headed handlers -- will thus understand it: That's an on-video-tape admission, by the sitting president, of a. . . felony. 18 USC §§ 241 and 242 provide, as relevant here, that using state action -- including willful funding with-holdings, from the USPS, for the purpose of preventing qualified voters from voting (see pages 52-55 here) is a crime:

. . . .Section 241 makes it a ten-year felony to “conspire to injure, oppress, threaten, or intimidate” any person in the free exercise of any right or privilege secured by the Constitution or laws of the United States” – including the right to vote. The statute, which is discussed in detail above, has potential application in two forms of voter intimidation: a conspiracy to prevent persons whom the subjects knew were qualified voters from entering or getting to the polls to vote in an election when a federal candidate is on the ballot, and a conspiracy to misuse state authority to prevent qualified voters from voting for any candidate in any election. . . .

[For example, courts have found Section 241 was violated when the conduct included] intentionally jamming telephone lines to disrupt a political party’s get-out-the-vote or ride-to-the-polls efforts, and schemes to vandalize motor vehicles that a political faction or party intended to use to get voters to the polls. . . . In re Coy, 127 U.S. 731 (1888). . . .

That's from an official DoJ -- at -- primer on "how to" prosecute election fraud -- that's why I linked to it on the web, not my server. This man is a straight up moronic. . . crook.

Onward -- grinning just the same -- after a bike ride by the lake, with my grown baby girl. Same as it ever was. . . .


Wednesday, August 12, 2020

Sad Update, In Our Night-Sky Studies: Arecibo Is Offline. Damaged. We Re-Run One -- On The Chinese Successor To It -- From A Few Septembers Ago.

This is particularly tough news -- given that significant new funds were needed, just to keep it running, before the accident. NPR reports that it is uncertain when -- or whether -- the repairs will get underway. Thus:

". . .A broken cable at Puerto Rico's Arecibo Observatory has torn a gaping 100-foot hole in the dish of one of the largest radio telescopes in the world, taking the instrument offline until repairs can be made.

Arecibo's massive reflector dish, which is built inside a sinkhole in northern Puerto Rico, was damaged when a 3-inch diameter support cable unexpectedly snapped before dawn on Monday, according to the University of Central Florida, which manages the observatory. . . ."

This may well mean that the below dish, on the opposite side of the planet, becomes the default world standard source -- as rebuilding will be daunting now, on the island of Puerto Rico. Sad -- but true. See below.


Dateline: 09.11.2019 -- We learned overnight, that China's vast FAST dish is fully powered up, and has collected over 100 so-called "fast radio burst" pulses, from an already well-known interstellar object cataloged as FRB121102. As that data gets crunched, we will re-run our seminal post on this, the successor to Arecibo, this afternoon. [I am consciously choosing to talk about anything other than what happened on this day in 2001. Not to disrespect anyone -- but simply to say. . . it is time to move on. Move forward. Let the past, be the past. So. . . onward.]

Dateline: 12.21.2017 -- I was going to wait until Christmas morning to post this, but I suddenly feel a need to more promptly remind that all of our fellow Americans in Puerto Rico could use your charity and help, during this season of giving. . . .

And so could that grand old dish located on the island. Just a thought.

Now (as I had originally planned for Christmas morning, here), I will simply rerun one from about one and a quarter years past, as China has clearly taken the lead on "big dish" time -- we are all sitting under the same big night skies:

It seems that -- for me -- space science is lately filling the void of the slow news trickle, out of Kenilworth. For we know nature simply abhors a vacuum. And this latest piece of news is anything but that. Smile.

Eclipsing Arecibo (in Puerto Rico) in dish diameter (nearly doubling it) -- and completely blowing it away in overall sky coverage -- this is an engineering marvel.

It positively buries Arecibo -- on sky coverage because, as opposed to being fixed into the mountain-side, this Chinese FAST radio dish can "gimbal" almost 40 degrees, in any direction by altering the shape of its parabolic dish's curve -- thus covering a much wider swath of sky. [But as we all remember from Billy Bob Thornton in Armageddon, it is "a big a$$ sky. . . ."]

In any event, this stretches our ability to look back in time, to much closer to when the Universe was first born. Courtesy my lovely eldest daughter, via National Public Radio:

. . . .Xinhua reports the telescope cost $180 million, and displaced 8,000 people from their homes to create the necessary 3-mile radius of radio silence around the facility. It will be used for "observation of pulsars as well as exploration of interstellar elements. . . ."

[FAST will also be used to search for] interstellar communication signals, [which] could be more simply referred to as searching for intelligent extraterrestrial life. "In theory, if there is civilization in outer space, the radio signal it sends will be similar to the signal we can receive when a pulsar ... is approaching us," Qian told Chinese state media. . . .

Indeed. [And perhaps one day, at least possibly, we might -- with this device -- hear a signal. One that might suggest we are not alone in this Universe. I firmly believe we are not -- but as a scientist -- I'd like even just a small hint, of some proof of that idea. That is also why I'll be monitoring the Oumuamu news, out of Chile and China this afternoon.] Be excellent to one another -- for at least for now -- we are all we know we have.


Tuesday, August 11, 2020

En Banc DC Oral Arguments: Rehearing On Flynn Mandamus Petition... Audio Here, Streamed...

I was quite busy with incalculably joyous, life affirming new appearances, this very morning. . .

But with a bit of a delay (and no additional ado) -- here is the argument.

Clearly, the en banc court will reverse the panel decision, on several grounds, shortly -- Condor predicts.


Monday, August 10, 2020

"Um, Sir... This Is A Taco Bell." That Is --This Is A THIRD-PARTY Criminal Subpoena.

It is. . . endlessly puzzling that Trump's lawyers think that he may interminably question and litigate an issue that has been decided against him, in every court to consider it -- all the way up to and through. . . the Supremes. [Now sent back down, into the Manhattan US District court, for enforcement.]

But it is. . . beyond the pale, that his lawyers think they can prevent the state government of New York, from gathering evidence from third parties, including accountants and banks, by regular, garden-variety processes -- ones that all us private citizens live under. Even so, once again overnight, Trump argues that he can prevent his personal accountants and bankers from complying with a lawfully issued grand jury subpoena -- related to a felony bank and tax fraud investigation. . . of him and his business entities, in their personal -- not presidential capacities. To be sure, Trump thinks everything he does, or ever did, from birth onward should literally glisten with the "pixie dust", of some magical, but wholly imaginary executive privilege.

Thus my line about it being a Taco Bell window. It is a dead question -- one he seeks to endlessly relitigate (an old issue, that Nixon and Clinton both lost on -- in what were clearly much closer questions). Without any new evidence, he simply says the state of New York looking to enforce its bank fraud laws (against him as a private citizen). . . is "harassment." How very. . . Alphonse Capone-esque, of him. [He says they are perfect -- and he is innocent -- but these are not the moves of an innocent man.]

I won't quote it -- as it is. . . like the client it was authored for -- a. . . loser.

Onward. . . smiling, but sadly so, at all the overnight violence here.


Sunday, August 9, 2020

"All Sound & Fury... Signifying NOTHING" -- Part II: Resist Trump's Lawless End Runs Around "Checks And Balances" Edition

The Speaker of the House called it all "an illusion" -- and "inconsequential. . . absurdly unconstitutional. . . slop". She is spot-on.

Trump's actions are. . . pure theater -- and even he (a "bear of very little brain") well knows it.

McConnell is the road block -- not the House Democrats -- don't be hoodwinked. We, the people, need a comprehensive set of safety net measures -- not just a band-aid until November. This will be a multi-year road to return to fuller employment for most workers without advanced degrees. And, if accepted, Trump's lawless "paper dictates" would permanently gut Social Security. It is in fact a take-away, disguised as a "hand-out".

It. Must. Be. Opposed.

In the courts, if need be -- but McConnell may well gamble and lose his seat over this, if he doesn't agree to more fulsome, and longer term relief -- in line with the Democratic suggestions. Resist -- onward.


Sarah Fabian Has Now Filed TWO Appeals -- In Flores -- To The Ninth Circuit...

It is highly unlikely that an appeals court is going to invalidate post-judgment enforcement orders, in 35 year old civil federal class action litigation, especially one settled by the acgreement of the government -- by reforming the government's practices.

The notion here is that the government was in the wrong, back when Ronald Reagan was President, and committed abuses against asylum seekers, among others.

Thus, the settlement agreement is to be given "remediative" effect, by the reviewing courts. Puzzlingly, Ms. Fabian appeals as though the trial court is not allowed to shape the relief, when she, Barr, and Trump commit all new violations of the law. In sum, "this is not her first rodeo" -- she ought to know. . . better.

That's just... silly -- and as was also noted Friday, by the court -- it is. . . "disingenuous". Here is a link to the later arriving of the appeals, as a four page PDF, and a bit of it, as an image:

Now you know -- this is mostly just to keep a complete record, here. Onward.


Saturday, August 8, 2020

We [Again!] Need To Get Off-World -- To See A More... Celestial Beauty... And Grace

And Jupiter has been as fertile, as the undulating Nile Valley -- for new discoveries, of late. This week we learned, via gracefully-twisting, copper clad, long legged Juno. . . that powerful but "shallow" lightning bolts ripple through the upper atmosphere [much as the heat of a wet summer storm (on Earth) feels like the underside of a light cashmere sweater, against the skin] in certain bands, there -- causing a soft mush of large ball methane "slush-balls" to plummet toward the surface, under the immense gravity of that gas giant. Do see the NASA/JPL visualization of that, in CGI -- at the bottom.

With Trump pretending that a president may author laws -- pass "bills" in his own ignorant parlance, tonight -- and tax and spend (hint: he cannot do any of these things). . . I really need to look to the night skies, and remind myself that fine humans the globe over are looking up, too -- and seeing the graceful orb of Jupiter in their telescopes, too.

Indeed, we are not nearly as cut off from one another (nor from those we long love, but have now seen pass, to Infinity) as we might imagine. . . and what a sight it would be, to fly through that strange, slushy methane rain (see video below). . . lightning striking all around. That thought. . . gives me new wings tonight. Here's a bit of the science, from NASA:

. . . .New results from NASA's Juno mission at Jupiter suggest our solar system's largest planet is home to what's called "shallow lightning." An unexpected form of electrical discharge, shallow lightning originates from clouds containing an ammonia-water solution, whereas lightning on Earth originates from water clouds.

Other new findings suggest the violent thunderstorms for which the gas giant is known may form slushy ammonia-rich hailstones -- Juno's science team calls "mushballs"; they theorize that mushballs essentially kidnap ammonia and water in the upper atmosphere and carry them into the depths of Jupiter's atmosphere.

The shallow-lightning findings [were] published Thursday, Aug. 6, in the journal Nature, while the mushballs research is currently available online in the Journal of Geophysical Research: Planets. . . .

"Previously, scientists realized there were small pockets of missing ammonia, but no one realized how deep these pockets went or that they covered most of Jupiter," said Scott Bolton, Juno's principal investigator at the Southwest Research Institute in San Antonio. "We were struggling to explain the ammonia depletion with ammonia-water rain alone, but the rain couldn't go deep enough to match the observations. I realized a solid, like a hailstone, might go deeper and take up more ammonia. When Heidi discovered shallow lightning, we realized we had evidence that ammonia mixes with water high in the atmosphere, and thus the lightning was a key piece of the puzzle. . . ."

Be excellent to one another. . . history has its eyes on all of us.


The Able USDC Judge Gee's Latest Order -- From Yesterday's Hearing -- In LA...

Well. . . Sarah Fabian (and Donald Trump) have already been thoroughly . . . warned. In fact, yesterday Judge Gee told Ms. Fabian -- on the record, that she found her refusals to comply with prior court orders. . . "dismaying" -- and that her arguments, in the filed papers, were "disingenuous". Most competent lawyers I know would very much wish to avoid being so characterized, by an able federal district court judge -- for they are. . . the cream of the judicial crop. Humiliating, indeed. . . .

Apparently not so, for one Sarah Fabian. Perhaps she thinks she will find work for some xenophobic far right think tank, after her time in Trump-landia ends. I honestly don't understand why a bright woman -- one of her caliber -- would exhibit such open defiance of the standards of simple human decency -- to say nothing of applicable law.

In any event, here is the full order, and a bit:

. . . .Pursuant to the Court’s June 26, 2020 Order and July 25, 2020 Order Denying Defendants’ Ex Parte Application to Stay [Doc. # 887], the parties filed a joint status report on August 5, 2020 regarding the adoption and implementation of proper written advisals and other protocols to inform detained minors and their guardians/parents about minors’ rights under the FSA and to obtain information regarding, and procedures for placement with, available and suitable sponsors.

Plaintiffs reported that the parties had come close to an agreement on a know-your-rights protocol, but Defendants stated their unwillingness to “voluntarily agree to any protocol that would potentially provide for the separation of a parent and child who are currently housed together in an ICE FRC.” Joint Status Report at 6 [Doc. # 902]. At the hearing, Defendants reiterated their view that the parties had exhausted any meet-and-confers on the topic. The Court therefore will proceed to impose a remedy for Defendants’ past and ongoing violations of Paragraphs 12, 14, and 18 of the FSA.

See June 27, 2017 Order at 27, 31 (finding violations of Paragraphs 12A, 14, 18) [Doc. # 363]; April 24, 2020 Order at 6, 16, 18 (finding such violations); June 26, 2020 Order at 3 (“ICE’s compliance with Paragraphs 12, 14, and 18 of the FSA remains at issue.”). Plaintiff shall therefore file a motion for implementation of proposed remedy for findings of breach, to be briefed and heard on an expedited schedule, described below. . . .

August 14 will be the next delivery of briefs, on those sanctions. Onward -- literally shaking my head at this. . . depravity.


Friday, August 7, 2020

[U: Complete.] Observations, During Live LA Federal Flores "Children: Impermissible Detention By ICE/DHS/HHS" Hearing...

As I am listening in, I will post snippets here, starting at 2 PM EDT.

But I expect Sarah Fabian's team to be excoriated, by the able USDC Judge Dolly Gee.

. . .We are now underway; all counsel of record have checked in and

∇ Judge Gee is calling the "hoteling issue" first. . . .

∇ Sarah Fabian says it is not on the agenda. Judge Gee disagrees.

∇ Judge Gee says all children in legal custody are part of the Flores settlement. Title 42 or no, they are to be addressed here.

∇ Judge Gee: Expedited briefing on this: August 14 for Plaintiffs; August 21 for government; reply by August 28. . . .

∇ Briefs must include names, ages and numbers of these children. . . .

∇ On to juvenile custody conditions: Judge Gee will instruct counsel to meet and confer as to the aging out process. . . .

∇ Judge Gee wants this latest "squandered month" to be explained by Ms. Fabian -- and expresses her "dismay" to Sarah Fabian, interjecting that she has been less than proactive about the litigation process. . . .

∇ Judge Gee: "Ms. Fabian, you act like you don't understand how litigation works" -- "This is not your first rodeo -- I may now impose a remedy against the Government. . . ."

∇ Judge Gee reminds Sarah Fabian of her embarrassing performance -- on what is "safe and sanitary conditions", in ICE detention. . . .

∇ Judge Gee calls Sarah Fabian's position "disingenuous" -- because she is not cooperating any longer in the ORDERED meet and confers. Peter Schey now explains how the Government hasn't moved forward, to address the information provided -- on breach of the settlement. . . .

∇ Judge Gee asks Sarah Fabian why the Government isn't providing the notices of rights, required under Section 12 of the Flores agreement. . . Fabian responds that they are trying to work out procedures. . . Judge Gee says you need to act on those commitments, and provide notices of rights. . . .

∇ Judge Gee says she cannot understand how any lawyer can have a problem (meaning Sarah Fabian) with written advisals of legal rights. . . . [Ed. Note: I suspect Judge Gee is going to order it, now specifically.]

∇ Judge Gee orders the ACLU, by August 14, 2020 -- to offer a list of proposed remedies, against Team Trump, for the failures mentioned above.
Onward -- but if I were Ms. Sarah Fabian, I'd be deeply embarrassed -- and worried, now -- to have to explain to any potential future employer (after her time under Trump ends), asking about these on the record positions, about children being tortured in solitary confinement. . . . Astonishing.


Amici's 120 Plus Page Brief, Now On File -- In Flores: Children Being Tortured, In Our Name.

I am running out of words, for the depravity embodied in Team Trump's litigation positions, as they relate to defenseless. . . children. Children guilty (at most) of a misdemeanor (like jay-walking) -- by crossing with their parent or guardian, without papers.

Here's a bit, of the 120 page filing:

. . . .More specifically, Defendants assert a Class Member’s refusal to separate from their parents creates a valid justification for detention under the Agreement. It does not. Class Members did not negotiate an Agreement that requires them to choose between freedom from harmful detention conditions and family unity; Class Members negotiated a legally binding contract that provides them with the right to be with their parents in the first instance and the right to be released from detention. FSA ¶¶ 11, 19. The maintenance of family unity of Class Members, who are minors, and their parents, cannot be deemed a “waiver” of their right to release under the Agreement. . . .

The CDC specifically lists asthma, respiratory conditions, and high blood pressure among conditions that might increase the risk for severe illness from COVID-19 for individuals of all ages, and also advises that children who have “medical complexity, who have neurologic, genetic, metabolic conditions, or who have congenital heart disease” are at an increased risk for “severe illness from COVID-19 compared to other children.”

Among those detained beyond twenty days with risk factors and vulnerabilities are a number of children under the age of two, a three-month-old infant, a child suffering from chronic bronchitis, a one-year-old who suffered from neonatal asphyxia, children with asthma, children with viral stomatitis, and children with heart murmurs. . . .

Unfathomable. These are the cases Sarah Fabian says her client, the US government -- is now refusing any more meet and confer sessions, on. Yes, Judge Gee will now sanction the defendants -- and possibly Sarah Fabian, personally -- its lawyer in this matter.


Ahem. 50 U.S.C. § 1702(b)(3) Specifically Exempts "Information, Or Informational Materials" -- Including "Films.. And Artwork" From Bans.

Before we discuss the likely "arbitrary and capricious" infirmities in Trump's supposed executive "order" -- and before we reach his lack of power to ban constitutional First Amendment expressive activity. . . AND before we consider that he has floated it as a form of unlawful blackmail, on videotape, this week. . . let us consider the savings clause inside the very law he claims to rely on (50 U.S.C. § 1702)1, in setting a 45 day delayed "prohibition" of certain apps. [Finally of course, as we previously mentioned, it is practically impossible to do, as a technical matter, what he says he is trying to do.]

The section of the US Code that allows the president to act on international emergencies to restrict certain foreign transactions with US persons is -- see page 12 of this primer -- itself expressly circumscribed by Congress, to recognize core free expression values in the First Amendment, thus:

. . . . Amendments in 1988 and 1994 updated this list of protected rights to include the exchange of published information in a variety of formats. . . . As amended, the act currently protects the exchange of “information or informational materials, including but not limited to, publications, films, posters, phonograph records, photographs, microfilms, microfiche, tapes, compact disks, CD ROMs, artworks, and news wire feeds,” provided such exchange is not otherwise controlled for national security or foreign policy reasons related to weapons proliferation or international terrorism. . . .

Tik Tok's primary content is user uploaded (and as here relevant, US protected persons' expressive) short films, recordings, and artwork. This means, in effect, Trump's action is meaningless.

Moreover, it is why his executive order itself says it is limited, to "the extent permitted under applicable law" (i.e., his people know this is all just so much. . . Kabuki theater). Except as a false, lawless international "blackmail" threat -- this, like all things Trump -- arrives. . . impotent. Impotent, except as a minor and doubtful cudgel, to try and force ByteDance to sell its US facing Tik Tok assets to Microsoft or Apple (and perhaps, lawlessly, for him to extract blackmail payments, from US companies). His people once again imagine he has powers he plainly. . . does not possess.



1. Perhaps uncharitably, it is humorous to me that Trumps' official White House communication, to the Speaker of the US House, is itself a form the rubes did not bother to edit. It leads with two alternative addressees -- but does't delete "Mr. President." These people are so. . . manifestly. . . incompetent. Yikes.

Thursday, August 6, 2020

Flores Class Counsel Has Tonight Completely BURIED Sarah Fabian's Dissembling Claims Of Last Night...

Do go read all of it.

No comment needed -- other than this is what real lawyers. . . do: they lawyer. [More MSM coverage, here.] Against (in this case) an inability to read, for comprehension / or, less charitably, lying -- by a DoJ political appointee hack.

. . . .First, whether children detained for prolonged periods in hotels are in the legal custody of the Centers for Disease Control and Prevention (“CDC”) or the Department of Homeland Security (“DHS”) is irrelevant. The Settlement protects “all minors who are detained in the legal custody of the INS,” and binds the INS and Department of Justice, as well as “their agents, employees, contractors, and/or successors in office.” Settlement ¶¶ 1, 10 (emphasis added). The Homeland Security Act of 2002, Pub. L. 107-296, 116 Stat. 2135, codified in pertinent part at 6 U.S.C. § 279 (“HSA”), transferred responsibility for “the care of unaccompanied alien children” to “the Director of the Office of Refugee Resettlement of the Department of Health and Human Services. . . .” Had Congress stopped there Defendants’ argument would at least be plausible. But it did not. . . .

Congress provided that “the care and custody of all unaccompanied alien children, including responsibility for their detention, where appropriate, shall be the responsibility of the Secretary of Health and Human Services.” 8 U.S.C. § 1232(b)(1) (emphasis added). The statute specifically references the Secretary’s responsibility for a child’s placement and release. See, e.g., § 1232(c)(2)(A) (“Subject to section 279(b)(2) of Title 6, an unaccompanied alien child in the custody of the Secretary of Health and Human Services shall be promptly placed in the least restrictive setting that is in the best interest of the child.”) (emphasis added); § 1232(c)(3)(A) (“[A]n unaccompanied alien child may not be placed with a person or entity unless the Secretary of Health and Human Services makes a determination that the proposed custodian is capable of providing for the child’s physical and mental well-being.”); § 1232(c)(3)(B) (“Before placing the child with an individual, the Secretary of Health and Human Services shall determine whether a home study is first necessary.”).

Insofar as the custody of unaccompanied class members are concerned, the TVPRA specifically designates the Secretary of Health and Human Services (“HHS”) as the successor to the former Immigration and Naturalization Service (“INS”). As Defendants admit, Response at 7, both the CDC and ORR are subordinate entities of HHS, and whether CDC, ORR, or any other part of HHS has legal custody of Title 42 children is therefore immaterial: HHS has legal custody either way, and the Settlement binds HHS just as much as it does DHS. . . .

Again, whether HHS, DHS, or any other federal department or agency has legal custody of an unaccompanied child, all federal agencies -- including the CDC -- are equally duty-bound to transfer the child to HHS, which must then “promptly place[] [her or him] in the least restrictive setting that is in the best interest of the child.” See 8 U.S.C. § 1232(c)(2)(A). . . .

Given the immense unused capacity of Defendants’ licensed shelters, including numerous shelters proximate to the southern border, there is simply no reason Defendants should be detaining children in hotels for any longer than 72 hours, and certainly not for as long as 19 days. . . .

Some children, as young as two or three -- have now been held for over 19 days, against a standard of 72 hours maximum, under the Flores settlement. Onward, to tomorrow's massacre, of Sarah Fabian's positions, in Los Angeles federal district court. We will live blog. Out.


[Unrelated Update, At Bottom] New York AG Files Suit To Dissolve The NRA -- For Fraud, And Self-Dealing.

Well, no Trump family indictments just yet (which many had speculated this announcement might include). . . but good news, just the same.

It is now highly likely the NRA will be dissolved, and its funds used to repay victims of its manifold frauds. Here's the bit from a tweet out of the NY AG's offices:

. . . .We are seeking to dissolve the NRA for years of self-dealing and illegal conduct that violate New York’s charities laws and undermine its own mission.

The NRA diverted millions of dollars away from its charitable mission for personal use by senior leadership. . . .

Unrelated Update, at Noon EDT: I will not dignify the bass-ackwards would-be federal lawsuit filed by Trump people in Nevada (on mail-in voting) with any longer reply. I will however, commend this fine legal analysis of its numerous fundamental flaws to the readership.

Onward. . . grinning. Ever onward.


Latest Government Admissions, In Flores Litigation, For Tomorrow's Hearing...

We will be credentialed as "press" on this hearing call in LA, tomorrow -- and will likely live blog at least parts of it.

Overnight, in making plain that the Trump team has adopted a very cramped reading of what the court's prior orders require of it, Sarah Fabian authored the below footnote, at page 5 of the latest status report, which openly admits that the Team Trump goal is to thwart treaty obligations entered into long before Trump jimmied the electoral process, to become president -- via unlawful executive orders:

. . . .As Plaintiffs have previously pointed out, the previous administration [Mr. Obama's] achieved substantial compliance with the FSA by having a ninety to ninety-five percent (90-95%) credible fear approval rate, and promptly released Class Members with their parents found to possess a credible fear of persecution if returned to their home countries. That approach to compliance no longer exists as the credible fear approval rate has now dropped to about ten percent (10%) when the current Administration substantially restricted its asylum policies [under Trump]. . . .

It cannot be said with a straight face that now 90 per cent of the same asylum seekers that Mr. Obama deemed safe for admission to the US, are now effectively reversed -- and non-admissible, by Trump's goons -- with no change in the underlying facts (i.e., no terror attacks by asylum seekers). This is simply Trump's xenophobia, in action. And now, with COVID-19 increasingly running through the detention facilities -- it is killing. . . children. And all of this is before we get to the central argument -- which is the government's continued refusal to comply with the spirit, and in some instances, the letter -- of the Flores consent decree, as amended and supplemented over these 35 years.

Onward to Friday's hearing, smiling. . . We will be ready. . . .


Wednesday, August 5, 2020

It Seems One Or Two DC Court Of Appeals Judges... Want To Ask About "Bias"... Y A W N.

At lunchtime (which seems days ago now!), we saw an order out of DC -- on the Flynn rehearing argument schedule, allocating 20 minutes each, to all three parties, for August 11.

What is more intriguing -- in today's order (given that we already know the hint was at least some of the full Circuit's judges were wondering aloud how mandamus from Flynn's camp was appropriate, without any order to appeal from, at least not a dispositive one, signed by USDC Judge Emmet Sullivan) -- is that at least some others are wondering if Judge Sullivan should have recused himself for "the appearance of bias" [that's what 28 U.S.C. §§ 455 refers to]. Here's the text, in full, then:

. . . .PER CURIAM ORDER, En Banc, [1855133] ORDERED that the following times are allotted for the en banc oral argument of this case scheduled for August 11, 2020, at 9:30 A.M. via teleconference: Petitioner, Michael T. Flynn - 20 Minutes, U.S. Department of Justice - 20 Minutes, and Hon. Emmet G. Sullivan - 20 Minutes.

It is FURTHER ORDERED that, in addition to the issue set forth in the court’s order filed July 30, 2020, the parties be prepared to address at oral argument the effect, if any, of 28 U.S.C. §§ 455(a) and 455(b)(5)(i) on the District Court judge’s Fed. R. App. P. 35(b) petition for en banc review.

Directing parties to file Form 72 notice of arguing attorney by 08/07/2020.

Before Judges: Srinivasan, Henderson, Rogers, Tatel, Garland, Griffith, Millett, Pillard, Wilkins, and Rao. . . .

It is entirely unclear to me that the mere asking of questions, by a judge amounts to "the appearance of bias."

And. . . I think I'll stop there, since I'm aware of all the frothy right's decidedly manufactured consternation about Jim Comey's speaking engagements, via a claimed introduction, from Sullivan (but conveniently the same hard right bloggers had zero problems with the speaking engagements of Scalia, himself -- and those of others who appear at The Federalist's confabs). No, this outrage is highly selective -- aimed solely at Judge Sullivan's having had a social acquaintance named. . . Jim Comey.

In sum, it is -- to me -- all rather. . . yawn-inducing. Not even an appearance of bias, at all, that is. Grin.


A Pungently Dissembling Reply -- By Team Trump -- To The Torture Being Inflicted... On Asylum-Seeking Children.

Well. Even I (ever a pessimist, as to the depths of depravity, of Team Trump). . . did NOT see this coming.

Team Trump must realize their crime spree is drawing to a close, come November, so the bureaucratic acts of subterfuge are growing more. . . desperate. In response to my observations of Sunday night, as to very young children being tortured in COVID-19 solitary confinement conditions more harsh than some hardened drug king-pins, terrorists, murderers and pedophiles endure in Colorado's Florence Super-Max facility. . . the goon-lawyers (think Sarah Fabian here -- yes, THAT dog-walking while children are missing. . . Sarah Fabian!) say, in essence: "Not my monkey; not my circus. . . ."

In sum, in an overnight filing, Fabian's Trump team claims -- preposterously, since CDC/HHS issued guidelines -- but DHS and ICE detained, and still holds in custody, all these children -- that ICE/DHS/ORR cannot be responsible for them. It is claimed they are simply "following orders" of the CDC and HHS -- as to COVID-19 guidelines. In fact, they go on to argue that nothing can be done about it, since CDC and HHS were not parties to the 35 year old original litigation. Disgusting.

I predict that the able jurist that is USDC CD CA Dolly Gee. . .is going to hand them their heads, for this. The government was sued. ICE, DHS and ORR all have custody of these children. As such, all of them are accountable -- for the conditions of incarceration. It is manifestly no excuse to say. . . "you'll need to sue another agency" to end the torture. The treaties and the Eighth Amendment apply, per force, to the entity with "custody" of the children. Oh. And. . . these are children. Geezus Christo, on a set of M-F-in' crutches. . . .

Finally, and more calmly(!), there are LOTS of alternatives to this state of affairs. . . to the torture. That some of them are expensive, because ICE detained so many children for so long, and so wantonly. . . is an unfortunate fact. But I will guarantee that. . .nowhere in the treaties, or our Eighth Amendment, does it say. . . "Torture is permitted, if it saves the government some money -- in continuing lawless detentions." This sort of filing should lead to disciplinary proceedings, against the involved government lawyers -- it is that speciously devoid of merit:

. . . .Because Plaintiffs took it upon themselves to unilaterally report [Ed. Note: on torture!]. . . they have inadequately presented Defendants’ legal position to the Court. As noted above, Defendants believe that no further action should be taken. . . . The CDC, though part of HHS, is not a successor to the INS with respect to the detention addressed in the Agreement or the detention under Title 8 authorities that was the subject of this case. Instead, the custody at issue here is incident to the government’s implementation of public health orders issued by the CDC under its authority in 42 U.S.C. § 265, and is in no way related to Title 8 or to immigration enforcement authorities. . . .

DHS will, where necessary, use repatriation flights to move covered aliens on a space-available basis, as authorized by law. The plan is generally consistent with the language of this order directing that covered aliens spend as little time in congregate settings as practicable under the circumstances. In my view, it is also the only viable alternative for implementing the order; CDC’s other public health tools are not viable mechanisms given CDC resource and personnel constraints, the large numbers of covered aliens involved, and the likelihood that covered aliens do not have homes in the United States. . . .

[These orders make] clear that the individuals subject to these processes are in the legal custody of HHS, and are not held pursuant to any authority vested in DHS. Under the plain terms of the Agreement, it does not apply to the custody at issue here because these minors are not in the “legal custody” of CBP and/or ICE (or any successor to INS). Rather, DHS’s only role in the process is to implement procedures that are only allowed pursuant to the CDC’s authority. . . .

This "just being a good German" argument. . . coupled to officious finger pointing. . . is appalling. Onward, to Friday's hearing now. Red hot.


A Small Refresher -- On The Real Lady A's "Common Law" Rights...

Billboard magazine put out a pretty well sourced story a few days ago, and so on a quiet Wednesday morning, as we await the first scheduling hearing in Nashville -- I wanted to highlight it. See below, for pull quotes. [Prior backgrounder, here.]

And I would only add, for the record, that since Ms. White was clearly "prior in time", in making her first commercial use of the name Lady A onstage (circa 1998, it seems), her so-called "common law" trademark allows (at a minimum) that she may use the name, forever, as a regional blues/soul artist. If she can establish that the country group's move is likely to cause confusion among blues/soul music consumers, nationwide. . . she at least has a shot of overturning the country group's 2010 era registered mark in DC.

But aside from the actual law, here -- the object lesson here is clear: if you are a white country group that is earnestly, honestly trying to distance yourself from what many Americans see as a slave-holding prior branding. . . it would be wiser. . . to be more humble, and less. . . litigious. Doubly so, where the person you sued is a black woman who has struggled for thirty years to build a nationwide brand, out of HER OWN DAMN NAME. Just because you sold some tee-shirts with "Lady-A" on them since 2010. . . you don't get to push her around, or demand that she do an infomercial for your would-be "woken-ness".

If the real Lady A's current CD sells well enough (I've bought mine!), she might apply a little money to filing a formal trademark opposition, at the USPTO, and from there -- on to the federal district courthouse, in Washington, DC. In any event, here's the Billboard piece -- and a bit:

. . . .Lady A says she had gotten on the phone several times with the country trio and their legal representatives, who she says offered to help her rebrand and suggested they all record a song together or participate in a documentary about the issue before negotiations fell apart. So far, she says she doesn't see what the group is giving up in the bargain.

"I’m not going to do this song and dance for you to make you woke, then when the smoke clears I still have nothing," White says. "Because that is what happens to us and that wasn’t going to happen. Everybody needs to be forgiven, they need to change their name. Everybody makes mistakes, I am not perfect. If they can do that? Sure, I would love… I don’t hold any animosity towards them, I am just going to hold their feet to the fire of their statement."

When Lady Antebellum dropped the second half of their name June 11 to remove a sullied Civil War association in response to the national racial reckoning in the wake of the police killing of George Floyd, they bumped up against the artist who had long been using that name. . . .

"I don’t have big business behind me. I don’t have big money behind me. I started out like any other artists starts out: I started singing in three-four bands, I was doing karaoke, when I started Lady A and the Baby Blues Funk Band we were just a party band doing our thing.

I was grabbing gigs here and there, working a day job, I was doing what people do, I was hustling and doing what I needed to do to be an artist. . . ."

I love that the real Lady A was going to donate half of what the country group should have paid for the name to BLM related causes. That's where the country group showed its truer colors -- it would not pay market rate, for the name. [In view of that evidence, hopefully the Nashville federal district court will order them to pay hefty annual royalties to Ms. White, in order to have the continued right to use it as the name of the band.]

So, here's to the REAL Lady A; and the other three. . . are pure pretenders. Race-Grifters. Know that history will write them down that way, no matter how the federal litigation in Nashville turns out, now. Onward, grinning wryly (with my own baby girl coming home, tonight). . . .