Category Archives: Courts

An Extortion Lawsuit

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Lawyer Anthony Russo of the Florida-based Russo Firm, says his client Cynthia Kelly and “not less than 100” and perhaps even “thousands” of others have suffered horrific emotional damage.

It seems that seasonal versions of Hershey’s Reese’s chocolate-covered peanut butter candies variously depicted pumpkin shapes with the candy’s peanut butter filling showing through eyes and a mouth carved into the chocolate or football shapes with laces similarly carved. On unpeeling the wrapper, though, shocker of shockers, the chocolate coverings were intact. The bodice-ripping. The emotional rending, the fall-to-the-floor sobbing paroxisms (I exaggerate, but not by much). Lawyer Russo is suing Hershey over the riptide of emotion the nefarious company has so callously caused.

However.

Omitted in this editorial is that the Reese’s packaging also depicts a bite already taken out of the candy, exposing the peanut butter filling inside the chocolate coating—and that that depiction has been there for years.

Did the “plaintiffs” not expect to unwrap this candy and see a bite actually already taken?

Not only should the plaintiffs be sharply sanctioned for this frivolous suit, the lawyer bringing it and the firm employing him (yes, it’s his firm, but still, the firm) should be especially sharply sanctioned for being a party to this frivolous suit. Lawyers, especially, should know better.

Hershey should refuse to settle and instead crushingly defeat the lawyer and plaintiffs in open court, taking no prisoners. Let it not be over quickly, the plaintiffs and lawyer will not enjoy it, and Hershey is not their patsy. $5 million or more that the plaintiffs want and of which Russo wants his cut? Sounds about right to me. That’s what the plaintiffs, the lawyer, and the law firm should be required to pay Hershey.

Wrist Slaps and Unequal Justice

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Navy sailor Petty Officer Wenheng Zhao was caught passing classified information concerning an Okinawa radar system, along with plans for a large-scale maritime training exercise in the Pacific theatre, to a spy for the People’s Republic of China. [OPSEC note: the exercise plans would allow, among other things, the PRC to watch the radar system in action during the exercise.] Zhao has been sentenced to 27 months in prison. A whole 27 months. A wrist slap.

Meanwhile, the 6 January rioters—those who have actually had trials three years(!) after the event and whose trials have actually run to completion—have been sentenced to 3-6 years, and some have been sentenced to as many as 20 years.

Meanwhile meanwhile, insurrectionists rioters in Portland and Seattle have, in the main, gone wholly uncharged at all, with a few scapegoats getting a few months.

It’s long past time to clean out the DoJ, from top to bottom, including the FBI. In parallel with that, it’s long past time to clean up our sentencing laws and sentencing guidelines.

If a Navy traitor can get off with a wrist slap, so, too, should the rioters at Capital Hill. That precedent was set prior to Zhao’s case, with those “rioters” who seized Seattle territory, drove out the Seattle government, and held the territory for weeks getting off with wrist slaps or going scot-free, and with those “rioters” in Portland who attacked and tried, for weeks, to burn down a Federal building with Federal government security personnel inside also getting off with wrist slaps or going scot-free.

Alternatively, the Navy traitor should have gotten tens of years in jail, even a life sentence. The 6 January rioters—a truly mostly peaceful affair, just noisy and boisterous (the only true violence was a security officer shooting one of the rioters and a security officer getting bashed over the head by a rioter using a fire extinguisher)—should have gotten off with sentences for the trespass they were committing, and the occasional petty theft they were committing in their souvenir hunting. The insurrectionists in Seattle and Portland should have gotten intermediate sentences in the fives of years in jail range.

It’s long past time to clean out the DoJ, from top to bottom, including the FBI. In parallel with that, it’s long past time to clean up our sentencing laws and sentencing guidelines. Whether or not you, dear reader, agree with my sentencing suggestions for these particular cases, the rules need to be adjusted to produce truly similar sentences for substantially similar actions, and—especially—existing personnel completely replaced with those who actually will apply and enforce the rules.

Subpoena Fight

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The House Oversight Committee has subpoenaed Hunter Biden to be deposed in a closed-door hearing. Biden has responded, through his lawyer, that he’ll be there, but only if the hearing is public. Supposedly, this sets up a subpoena fight.

It needn’t, and Oversight Chairman James Comer (R, KY), has said so, although he has offered, unnecessarily IMNSHO, a compromise to have Biden testify in an open Oversight hearing after he’s sat for the close-door deposition.

If the impasse is not broken, Congress can move to enforce its subpoena in several ways. Republicans can hold Biden in contempt or file a civil suit to compel him to testify. These options require the Department of Justice or the courts to enforce, respectively. But, if Republicans want Hunter Biden’s testimony soon, investigators may have to acquiesce to his lawyer’s demands for a public hearing or awaken a long dormant Congressional power to compel the younger Biden to appear.

The correct move is a) and d) above. If Biden is a no-show, he should be held in criminal contempt and referred to DoJ for prosecution (even though AG Merrick Garland is unlikely to do so). In parallel, the House should exercise its authority to go get Biden and compel his (closed-door) testimony.

That fourth option is the House’s and Senate’s—”the Legislature’s”—Inherent Contempt Power. This power permits each house to arrest and detain an individual who is found to be obstructing Constitutionally defined duties and responsibilities of the legislature. The latest use of this power to compel testimony was the Senate’s 1934 Jurney v MacCracken case. William MacCracken at the time was refusing to comply with a Senate subpoena, the Senate sent its Sergeant at Arms to arrest him and present him before the Senate for a contempt trial, and on conviction, he was held in jail in the Senate’s custody (not DoJ’s or any other police facility’s) until he cleared his contempt by testifying as subpoenaed. Jurney was the Supreme Court upholding the Legislature’s—the Senate’s in that case—authority to exactly what it did.

So it should be with Biden in the House. The matter could move apace, with the long pole in this tent simply being finding Biden in the first place and transporting him to the House floor for trial.

Regarding Oversight’s subpoena in particular, there’s nothing about which to fight, or negotiate, or even discuss. The subpoena has been issued for a closed door deposition on a particular date; the only thing for Hunter Biden to do is to appear for the deposition on the appointed date. Or suffer the ignominy of arrest, House trial for contempt, and then jail in House custody until he testifies.

Full stop.

Convenience and the FBI

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Stewart Whitson, late of the FBI and currently Foundation for Government Accountability Legal Director, decried in his Tuesday Wall Street Journal op-ed, a Consumer Financial Protection Bureau effort to completely eliminate the ability of credit-reporting companies to sell credit-header data to law enforcement agencies, including to the FBI. Those header data include a variety of identifying material but, as Whitson was careful to emphasize, no financial information.

This, actually, is one of the few things the CFPB would get right were it to follow through.

In support of his plaint, Whitson related an 8-year-old incident in which he and a partner were conducting surveillance on a suspect and observing his contact with a third individual. Whitson bragged about being able to use credit-header data—but no financial data, mind you—to contact that third individual, arrange a meeting, and through that, foil the suspect’s planned terrorist attack.

Without the credit-header data, we might not have been able to contact the occupant for a while, giving [the suspect] more time to carry out his attack.

Whitson bragged about FBI success with such purchases and then put his disingenuous question.

I worked on hundreds of terrorism-related investigations at the FBI, all of which relied on credit-header data. Why doesn’t the CFPB want law enforcement to have quick access to this information?

Perhaps because the purchases are, at bottom, violations of our Constitution’s inconvenient 4th Amendment, regardless of their convenient-to-government speed.

How inconvenient it is, after all, to follow the Constitution’s requirement for warrants before searches occur. That the FBI got lucky—or even that purchasing personally identifying data (the lack of financial data being a cynically offered red herring here) materially helped—in no way legitimizes the FBI’s bypassing Constitutional requirements.

Get the warrants. If it often takes too long to get them, and that’s a legitimate beef, work on streamlining the process through the political branches of our government: the House and Senate. The Executive Branch does not get to skip the hard work or usurp political branch authorities.

Not even when its FBI claims that anxious and enthusiastic mothers at school boards are akin to domestic terrorists or that traditional Catholics are behaving suspiciously.

A Voting Rights Discrimination Case

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The 8th Circuit has ruled that private parties cannot bring suit over voting rights discrimination under Section 2 of the Voting Rights Act; only the US Attorney General can. The 8th Circuit stands alone among courts and against long-standing precedent here. It’s still correct on the matter.

The court’s decision, in summary, said the

Arkansas branch of the NAACP and another organization couldn’t challenge the district lines drawn for the Arkansas House of Representatives after the 2020 census.

Circuit Judge David Stras, for the majority:

If the 1965 Congress “clearly intended” to create a private right of action, then why not say so in the statute? If not then, why not later, when Congress amended § 2?

Indeed. What does the text of the law say, rather than what do judges want it to say? What the law says, as Stras says, is clear. § 2 and the 15th Amendment to our Constitution both prohibited purposeful discrimination in voting rights and district boundary-drawing, and enforcement of that was put squarely in the hands of the US Attorney General and nowhere else. Congress subsequently amended § 2 to add a discriminatory-effects test. Congress did not, though, broaden who had authority to bring suit under the section, not even to add State Attorneys General, much less private parties.

My concern here, though, is the logic of the dissenting judge, Chief Judge Lavenski Smith [ellipses in the quoted part, which Smith is quoting from Singleton v Merrill, are Smith’s].

“Since the passage of the Voting Rights Act, federal courts across the country, including…the Supreme Court…, have considered numerous Section Two cases brought by private plaintiffs.” … Rights so foundational to self-government and citizenship should not depend solely on the discretion or availability of the government’s agents for protection[.]

Regarding that last, I repeat: what does the text of the law say, rather than what do judges want it to say?

Regarding Smith’s prior reference to precedent, he’s right about the importance of precedent. However, it doesn’t matter how long is the line for an existing court precedent; if the precedent was wrongly decided (or if the conditions warranting it no longer exist), that precedent is legitimately, and must be, overturned.

The 8th Circuit ruling can be read here.