Tag Archives: courts

Maybe the Judge Isn’t Entirely Correct

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A Florida man was charged by the Feds for possessing a firearm in a US Post Office facility. A Federal district judge ruled the law governing his arrest to be unconstitutional.

US District Judge Kathryn Kimball Mizelle, an appointee of former President Trump, cited a 2022 landmark US Supreme Court decision that expanded gun rights when she handed down her ruling Friday that dismissed part of an indictment charging a postal worker with illegally possessing a gun in a federal facility.

So far, so good. But:

[T]he judge declined to dismiss a separate charge for forcibly resisting arrest.

The “forcible resistance” consisted of the man running when Federal agents tried to “detain” him. This is where I have a problem. I don’t see anything wrong with resisting arrest when the arrest is pursuant to a non-law, a law that is unconstitutional. The charge itself was legitimate, since the agents, in good faith, were trying to arrest him, and he ran (notice that: he ran, he did not fight); however, once the underlying law was ruled unconstitutional, the arrest pursuant to it became illegitimate, and the charge of resisting that arrest should have been dismissed.

Immigration TBD Notices

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The Supreme Court is considering a case involving an illegal alien who was…paroled…into the US on his promise to appear in court for his asylum hearing on the specified date, which was named as TBD on his release/parole paper. Later, when a date came open, the illegal alien was emailed his date certain, and when he didn’t appear, he was tracked down, arrested, and is in deportation hearing status. The illegal alien claims he never got the emailed notice, and his case has wound up before the Supremes.

The government’s position is that the two-step notice—replacing “TBD” with a specific date via a later correspondence—is perfectly fine, noting the “thousands” of illegals who do show up on the date appointed via the second correspondence, and noting also how unfair it would be to them for the Court to void the system. The illegal alien’s position is that the two-step notice doesn’t fit the statute.

My beef is not with the arguments themselves, but with the Biden administration’s couching of its position. Biden’s Assistant Solicitor General Charles McCloud, who is making the argument before the court, is threatening the Court if they don’t rule Biden’s way. McCloud:

We are very concerned that those hundreds of thousands of cases could be injected back into the immigration system.
So…that already substantial increase we have seen is going to turn into an avalanche.

I have two problems with that. First, convenience to the government is not a valid criterion with which to decide whether to follow the law. Name the date in the first place rather than the shortcut of TBD. If the government can’t meet the schedule, that’s when a second notice would be useful. Follow the law is the uncaveated requirement for government officials. Government convenience is irrelevant.

Second is the claimed need to refile immigration cases against illegal aliens, with that leading to an avalanche of cases. The “avalanche” business is risible on its face. It’s only necessary to see the rate at which illegal aliens already (don’t) appear for their clearly stated court dates (those claimed thousands who do appear are against the millions of illegal aliens, just during the present administration, who are “paroled” into our nation with future dates who have not appeared) to see that no avalanche will occur. The only hard work would be to fill out the standard forms giving notice of failure to appear and tasking the relevant police authorities with tracking down the missing illegal aliens and haling them in to a deportation court.

That last is a work load that never would have occurred and wouldn’t be necessary today, had this administration and too many prior ones not skipped that last step, and had this administration actually kept our border secure, a failure that has only made the enforcement side of the problem worse. And that brings us back to my prior point about convenience to the government.

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.