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

IRS leaker case.

So, as predicted last fall, (see below) the govt asked the judge to exceed the Sentencing Guidelines recommended sentence in this case & she did. She gave him the highest sentence she could give under the statute - 5 years to serve in prison.

https://twitter.com/mcadoogordon/status/1714796124937060452

Case reporting here. 👇🏻

theepochtimes.com/us/ex-irs-cont…

DJT Presidential Immunity.

My own view is that it is completely obvious that the POTUS has immunity from criminal prosecution for official acts.

I don’t think this is a close or difficult question. The scope of it is the same as the civil immunity as SCOTUS explains in Nixon. Whether the conduct charged in DJT’s DC Jan 6 case falls within or without the scope of the immunity is a more difficult question. And it is complicated by the fact that the 4 charges in the indictment are all legally flawed in other ways.

So you know.

There is nothing inherently wrong with the state courts interpreting or applying federal law & the U.S.Constitution.

They often have to because federal law often preempts state law, they often have to enforce the individual federal rights of their citizens, etc. Plus, federal law is supreme over state law & often even state constitutions, AND the U.S.Constitution is the supreme law of the land. Everything else falls before it. In federal & state courts.

How Free Speech Works:

1. People get to think & say what they want;

2. Individuals get to decide who is welcome & who represents them;

3. Entities get to decide who represents their brand publicly;

4. Otherwise, no institutions get to punish or exclude solely for views. Only a few, very narrow exceptions to this scheme exist, such as when loyalty can legitimately be demanded from people in the interest of a higher value like discipline, as in the military prohibitions on criticizing civilian leaders, for example.

A good chunk of “our side,” (what I call “Right of Center”) needs to accept that “should” & “shouldn’t” don’t exist except as an aspirational or future state.

Eg: “We should change that.” Or: “He should work on his empathy.”

Outrage is also ok: “It shouldn’t be that way!” What doesn’t exist is “should/shouldn’t” applied to other people’s actions, the present, or the past.

Denying reality impedes your analysis & ability to respond.

Eg: “They shouldn’t act that way.”

“I shouldn’t have to deal with that.”

“She shouldn’t be allowed to do that!”

DJT GA case - Chesebro plea.

He plead guilty under First Offender status to one felony count of the indictment. All other counts against him including the RICO will be dismissed now.

Judge followed the joint request for 5 years probation (which gets reduced for good time to 3). The count he plead to is Count 15 of the Indictment, which alleges the creation & filing of “false” elector certificates for the Nov 2020 election. This is a conspiracy count, but not the RICO count.

With a deal you get certainty. Which you have none of at a trial. Certainty as to exactly what charges will be on your record as convictions. Which is big for trying to save the law license afterwards. In state court you also get almost 100% certainty on the sentence too (not so much in federal court). As you see in this case, the judges almost always give the sentence that was negotiated with the prosecutors.

@AaronGogley @KiltedRef @shipwreckedcrew Okay, so under the plea agreement, the Govt is going to ask for a higher sentence than the range set forth in paragraph 9a on page 4. This is reflected in paragraph 9d on page 6, which says: @AaronGogley @KiltedRef @shipwreckedcrew "The Government hereby provides notice that it expects to seek an upward departure pursuant to Application Note 5 of Section 2H3.1 of the Sentencing Guidelines."

"Upward departure" means more time; "downward departure" means less in Sentencing Guidelines speak.

The X account of the Israeli Prime Minister has a new post that shows the photos of the atrocities committed by Hamas including of infants, which were shown to our Sec of State. The images are behind a content filter so you have to click past that to actually see them. You can’t see them by mistake. Given the general lack of faith in institutions we have & the continuing existence of the poison of denialism related to persecution of Jews, the release of such images is sadly perceived as necessary.