I’m late to the SCOTUS party today because we are moving today!

But I wanted to let you guys know that the decision today about the SEC is a huge win for liberty lovers. The case is Jarkesy.

The Court ruled the govt can’t impose fines on people for alleged fraud w/o a jury. This decision is constitutional & therefore should directly affect all the other administrative agencies that have civil fraud penalty schemes too, like HUD, HHS & a bunch of others.

This has been one of the most common constitutional violations perpetrated by the federal govt.

Donation Opportunity.

(I never ask for money for myself on social media, nor do I do any affiliations.)

I wanted to bring to your attention a good cause if you have the inclination & ability to donate some money.

It’s a GiveSendGo acct. givesendgo.com/1APMediaDefama… 1st Amendment Praetorian (1AP) is/was a nonprofit organization that I represented (pro bono) prior to Jan6 & before the congressional J6 Committee. They provided security for speakers at various events before & after the 2020 election.

I’ve now listened to Mark Levin’s argument about SCOTUS taking DJT’s case by writ. I agree it’s at least possible, tho as Mark agrees, rare. I said this in my Daily Wire interview this morning.

The statute he cites 28 USC 1651 is right but he’s not right that it can be done now. SCOTUS’ writ power is “in aid of” its appellate jurisdiction. So, 1. there must be a federal issue in the case, which I think there is.

But 2. there must also be a judgment that the writ is seeking review from.

DJT NY case.

Having gotten the actual jury instructions (thank you @KingMakerFT), it now comes clear what DJT was charged with/convicted of. Most of the reporting on this has been wrong because reporters don’t understand the law. He was charged with 34 counts of violating NY penal section 175.10, a falsification of books & records offense that becomes a felony if you do it with intent to cover up a second crime. 👇🏻

Some perspective.

1. There are multiple, well founded grounds for actual reversal on appeal in the DJT NY case. Unlike in most ordinary cases where as a practical matter there are few. 2. The conviction does not preclude DJT from running for President or serving as President.

3. Any sentence will likely be stayed pending appeal under normal legal principles, if not by Merchan, then by a courts of appeals.

Free speech. In the coming years, I think we're going to see a lot of free speech cases. It is one of the most important aspects of our liberty based republic. We must defend it at all costs. Literally no other rights can be defended w/out it, at least not nonviolently. It is vital that the Right of Center understand and insist upon having free speech. It is both a legal right against the govt (First Amendment) AND a social, civil value that makes our civilization work.

Public trials.

I had a case years ago where the judge on his own announced/ruled from the bench that he was barring the press from reporting that this was a re-trial.

We the defense had asked the judge to bar the prosecutor and their witnesses from saying that in testimony. We didn’t want the jury to know the defendant was convicted at the first trial. His case had been reversed on appeal because his first lawyers had not been allowed to do critical cross examination of the state’s star witness. My firm had gotten him a new trial on appeal.

Excluding the public & press from the courtroom in a criminal case is unconstitutional except in narrow circumstances for which the judge must make specific findings in advance. It’s considered a “structural” error, often leading to reversal on appeal. yahoo.com/news/clear-cou… The Sixth Amendment right to a public trial protects the defendant, but also the public at large. The Courts of Appeals & SCOTUS take it extremely seriously.

Nothing Judge Cannon has done is judicial misconduct.

Falsely accusing a judge of misconduct & encouraging others to do so IS misconduct by a lawyer, however, in most jurisdictions.

https://twitter.com/glennkirschner2/status/1789379553883726115

In DC, where this fool practiced, that rule (8.2(a)), is not in the bar rules.

8.2(a) IS in the FLA rules, however.

Glenn could be disciplined potentially by the bar in FLA or in DC for disparaging Judge Cannon’s integrity under FLA’s rule.

Now that we all know what DEI is, I want to talk to the Right of Center about reclaiming the correct meaning of “equity.”

Equity is a legal word. It is contrasted with “law” in legal understanding. The English common law developed the concept of “equity” as a means of avoiding the harsh and unjust outcomes that a strict application of “the law” sometimes produces.

Bribery has always been private conduct.

Ruling impartially on a case is a judge’s official duty. Taking money to rule for one side is not. But notice that the judge doesn’t benefit from the ruling, but from the bribe. Same for public officials. Similarly, where a public official does benefit directly and personally from their own official act, esp if that is not disclosed, we’ve deemed that a conflict of interest, which is also private conduct that invalidates the public act.

DJT SCOTUS case on immunity starting now.

Sauer arguing for DJT. Doing his opening statement now. He's making the point that prosecuting POTUS after office undermines the POTUS while POTUS.

The test for whether spoken words are free speech or not is called the Brandenburg test from a SCOTUS case in 1969. It is also called the "imminent lawless action" test. ONLY if the speech rises to that level does it fall outside of the protection of the First Amendment. In essence the speech must be the kind that does or inexorably is known to lead to "imminent disorder." (This standard is from another SCOTUS case in 1973, Hess.)

This is a very high bar & effectively renders almost all speech that doesn't actually result in violence, protected.

Listening to Fischer argument now. Govt arguing 2nd.

Sounds to me like the 3 liberal justices are in favor of the govt‘s position.

So far, I have 3 of the conservatives in favor of Fischer - Chief Roberts, Alito & Thomas.

Not sure yet on Barrett, Gorsuch & Kavanaugh. Robert’s really arguing with the SG - that doesn’t usually happen.

Understand reality:

The US govt needs to & is going to spy on foreigners overseas & also here, in our security defense.

FISA or no FISA, that will happen.

The only questions are who “gate keeps” it & how & what the standards are & whether the standards differ inside the US. There is no question in my mind, at all, that the federal govt has unlimited power to spy on foreigners overseas for our national security intelligence purposes.

None. Zero. Zip. Nada.

Domestic spying- of foreigners here & of US persons here & abroad- present different issues.

Free speech.

In my view the case before the SCOTUS this morning on free speech at base is not that complicated:

The govt, just like any other actor in our society, can speak.

But unlike some other actors, in speaking, the govt cannot tell others what to say or not say. The govt can add its voice to the free exchange of ideas in the open marketplace of discussion . And it can say that its information or viewpoint is the “official” govt version.

It CANNOT, however, insist that alternative info or views be suppressed, directly or indirectly.

Free speech.

The Supreme Court this morning is going to hear argument in the case about how the govt communicates to social media companies.

The case is Murthy v Missouri, case No. 23-411. (It was previously named Missouri v Biden.) I will be listening to it and I may live tweet it.

I will definitely summarize the argument for you guys afterwards.

To explain this 👇🏻 a bit.

First, here is the memo if you want to read it:

drive.google.com/file/d/1ztChjH…

https://twitter.com/shipwreckedcrew/status/1763687489884315822

I write this memo two years ago and sent it to lawyers who are on the list serve for the defense counsel on the J6 cases to circulate to anyone defending those cases. I also sent it to the public defender.

I wanted all the defense lawyers to have access to the argument.

So you know. As a principal of justice, prosecutors are supposed to decline to prosecute cases - even where they personally think the person is in fact guilty on the evidence - if they also think that they won’t be able to convince a jury to convict./1 This principle is seldom used in practice but it does show up occasionally. Defense lawyers use it to persuade prosecutors to decline cases regularly. You usually see it in self defense cases or cases where intent is a difficult issue. /2

DJT Appeal of DC (Jan 6) case

Unbelievably, the Circuit Court has ruled that DJT doesn’t have immunity from prosecution because he’s not the POTUS right now.

This is perhaps the biggest dodge of the actual issue by an appellate court I have ever seen. 🙄 theepochtimes.com/us/appeals-cou… The Court is withholding its mandate until Feb 12. That means the case doesn’t go back to Chutkan until then. That gives DJT’s lawyers time to petition the SCOTUS & ask for a stay.

Until the mandate comes back to her Chutkan has no jurisdiction to act except on ancillary issues.

Re: Tucker.

I don’t subscribe to the “you shouldn’t give people like that (Putin in this case) a platform” theory of journalism.

I want to see the mfers & know exactly who & what they are. Same with other kinds of a-holes. Let them show their asses for all to see.

/1 Free speech & the free exchange of ideas is the most powerful weapon there is.

You can’t understand the appeal of, evaluate, critique, and defeat bad ideas if they are kept in the dark.

Shine light on them. They often shrivel when you do.

/2