Blog Ipsa Loquitur

The New Yorker’s mandatory long read on the new president of New York City Transit: Can Andy Byford Save the Subways? leaves me feeling more hopeful about the future of the subway than I have in a long time. There are too many fascinating tidbits to choose from, but this bit about a press conference at a railyard really works for me on a couple of levels:

Byford caught a 4 train at Bowling Green and then switched to the Coney Island-bound D. It was a swift, on-time ride on relatively clean trains. Byford, who often points out that most subway trips are successful and therefore forgettable, stood in a half-empty car and considered his position. “I need the Governor’s confidence that I will turn things around,” he said. “I sense the crest of my honeymoon period. It’s a gut feeling—a bit like political antennae. If I ignore it, I always regret it.”

[New York State’s Governor Andrew] Cuomo arrived, with his aides, in black S.U.V.s. Trackside, he greeted Byford warmly. The Governor, wearing pale chinos and a dark windbreaker, watched a worker demonstrate the magnetic wand, then squatted and ran the instrument under a rail flange himself. With news cameras recording the action, he came up, triumphantly, with a wandful of metal filings.

Published on under You're a wizard, Andy

Vox’s Matt Yglesias has a new piece on the limits of normcore politics. It’s a warning to liberals that Donald Trump isn’t necessarily a disease that America needs to resist at all costs, but he might be a symptom of an underlying issue. In Yglesias’s view, “normcore” politics incorrectly assumes Trump is some wild aberration that popped up more or less out of nowhere, and we need to get back to “normal.” But he makes a pretty persuasive argument that “normal” wasn’t that great anyway:

The failings of normcore politics start with a somewhat blinkered and romantic view of American history which, as Ezra Klein recently argued in his review of much of the democratic crisis literature, is actually quite ugly. The country was founded on the brutal genocide and dispossession of its native population, relied on chattel slavery as a cornerstone of its economic development, fought a deadly civil war, had the outcome of that war challenged by a largely successful campaign of terrorist violence, and by the 1940s was locking up the Japanese-American population in internment camps.

That second sentence is one of the most succinct appraisals of America’s biggest moral failings since before our inception. It’s not strictly relevant to Yglesias’s argument, I just found that bit an impressive bit of wordsmithing.

Here’s the really persuasive thrust of his argument, though:

Consider, for example, the hardball saga of the “Blue Slip Rule”:

  • Up through 1994 or so there was a tradition in the United States Senate that a judicial nomination could not be brought to the floor unless the nominee received at least one “blue slip” — i.e., favorable recommendation — from a home-state senator.
  • Then in 1995, Republicans won control of the Senate and changed the principle to require two blue slips to advance a judicial nominee, which made it easier to block Bill Clinton’s appointees.
  • In 2001, George W. Bush became president, so they changed the rule back to one blue slip. Jim Jeffords’s defection then gave Democrats control of the Senate, so they moved back to two blue slips to make it easier to block his judges.
  • The two slip rule, critically, remained in effect as long as Democrats controlled the Senate even once Barack Obama took over as president — with Democrats choosing to uphold a senatorial courtesy over partisan advantage.
  • Republicans gained control of the Senate in 2015 and, of course, not only kept the two slip rule in place but basically stopped confirming judges altogether — up to and including holding a Supreme Court seat vacant.
  • When Trump took office, he filled the Supreme Court vacancy with Neil Gorsuch and the GOP swiftly went back to a one blue slip standard, until this May when they broke the seal on confirming judges who had zero blue slips.
  • These shenanigans have profoundly shaped the federal judiciary over the past quarter-century, a period of time during which the courts also handed an election to Bush, dismantled much of federal campaign finance legislation and the Voting Rights Act, and acted to make it virtually impossible to successfully prosecute political corruption cases and a wide array of other white collar crimes to boot.

It’s not just the judiciary.

Democrats aren’t entirely innocent in the ratcheting up of tensions that provide the backdrop for eroding norms. But it’s pretty clear that there’s been a systematic problem with “normal” for decades, and even if Trump were impeached tomorrow, we wouldn’t suddenly exist in a Golden Age of democracy. There might never have been one.

Published on under I'm more into post-synthwave now anyway

Nobody is reading and writing more thoughfully about the Special Counsel’s investigation than freelance national security journalist Marcy Wheeler. Over the weekend, she published an eyebrow-raising note on her continuing obsession with Paul Manafort’s iPods, which the FBI seized in August 2017. Really, her whole note is an exercise in details that make you go “huh, that’s odd,” so let’s just get into it.

First, the Special Counsel’s Office has asked the judge to schedule three weeks for the trial, up from two weeks. The first huh:

Remember that Mueller originally asked for 70 blank subpoenas (35 sets) to call witnesses for the trial. But after the trial got moved, they asked for 150 subpoenas (75 sets). Now we learn they would like 50% more time for the trial. This shouldn’t be a difficult case, given how much paperwork there is. I wonder why the scope of it has expanded. We know, however, that Mueller neither wants nor will be permitted to raise issues related to Trump.

So the scope of the trial keeps increasing, even though Mueller’s folks aren’t going to use the T-word at all. I’m with Wheeler here: tax evasion and money laundering are complicated but not exactly difficult to argue. Maybe the FBI keeps digging up new shell companies and new money laundering, and it’s going to be hard to argue twenty new charges in addition to the twenty-odd from the two Manafort indictments. Or maybe there’s been a lot of developments on the “Conspiracy to Defraud the United States” charge that undergirds the broader investigation into Russia’s 2016 election interference.

Which is where the second huh comes in:

Because of my continuing obsession with Manafort’s iPod habit, I’m also really interested in this passage in [Buzzfeed reporter Zoe] Tillman’s report: “On the home search issue, Manafort is arguing that the search warrant was too broad and that investigators had failed to explain at the outset why they reason to believe there would be evidence on various electronic media devices that they seized.”

As I’ve laid out, Manafort’s lawyers focused on his iPods from their first suppression motion, claiming, falsely, that the iPods might only be used for music: “For example, the search warrant inventory of electronic devices seized or imaged includes things such as an Apple iPod music device and some Apple iPod Touch music and video devices. No agent could have reasonably believed that he was seizing electronic devices used in the commission of the subject offenses.”

Now, I’m no fancy big-city lawyer, but even I know that iPods are great secure communications devices. They run all the same end-to-end encrypted applications as iPhones, but you can walk into a Wal-Mart and buy one with $300 cash instead of giving AT&T your billing address and driver’s license. You can use Signal, you can use WhatsApp, you could even use the iPod as a voice recorder for meetings, such as the June 9 Trump Tower meeting that Manafort attended.

And at the hearing Tillman’s reporting on (and Wheeler’s writing about), Manafort’s lawyers again argued about the seizure of the contents of those iPods. The judge has already decided the search of Manafort’s house (in which the iPods were seized) was proper. Manafort’s lawyers aren’t arguing with the judge because he might overrule himself; they’re arguing with the judge because they want an appeals court to decide the judge was wrong. That’s the long game.

And then there’s the last huh:

Rather than stating that “the government will not be introducing any evidence obtained from those devices at the trial in this case,” Manafort instead claims that “the Special Counsel stated that he would not seek to introduce evidence from the iPods seized from the residence.” Mueller’s team only said they wouldn’t be introducing evidence from the iPods “in this case,” not that they wouldn’t introduce evidence from them “in some future case.”

Wheeler correctly points out that Manafort is the only one who can raise the “improper search and seizure” defense against whatever evidence is on those iPods. Mueller’s team isn’t splitting hairs for no reason. Maybe there’s a recording of that meeting on that iPod, and maybe hypothetically incriminates one of the other attendees from the Trump campaign; it’s up to Manafort to suppress that evidence to protect that other attendee in that—hypothetical—future case.

Published on under Oh geez I was thinking maybe some Drake

Mari Uyehara, writing in GQ on the breathtaking spinelessness of a Washington Post editorial, and more broadly on why restaurants everywhere should blacklist members of the Trump Administration after Sarah Huckabee Sanders was asked to leave the Red Hen:

[Red Hen Owner Stephanie] Wilkinson’s recognition of the costs of a principled stance were soon realized. Sanders used her official government Twitter account, instead of her personal one, to criticize the small private business—an ethics violation—and, later in a press conference, described the episode of being politely asked to leave the restaurant as “harm.” Trump jumped in, tweeting that the restaurant was “filthy” and claimed that he “always had a rule, if a restaurant is dirty on the outside, it is dirty on the inside!” Hordes of Trump followers targeted a different restaurant, Red Hen in DC, for days of harassment, including death threats and egging.

The Washington establishment piled on the small restaurant and its seven-person staff, with an array of misguided commentary. In a now-deleted tweet, Politico’s Jake Sherman, last seen obsequiously defending the administration by decrying Michelle Wolf’s stand-up as “mean,” sided with the president, tweeting “kind of agree on the outside/inside dirtiness deal.” David Axelrod, CNN commentator and former Obama staffer, sarcastically noted: “Oh yes. Let’s get REALLY tough and deprive the Trumpies Chanterelle & Scape Risotto! That will change EVERYTHING!” Ari Fleischer, former press secretary for George W. Bush, snickered: “I guess we’re heading into an America with Democrat-only restaurants, which will lead to Republican-only restaurants.” None, mind you, peeped up when Vice President Joe Biden was turned away by a Virginia cookie shop in 2012.

I’m going to skate right on by the old white guys dying to prove how principled they are by carrying water for the right-wing’s half of the outrage-industrial complex here. I hear Vichy is lovely this time of year.

Uyehara seems equally irritated by the ridicule lobbed at people standing up for their principles here, and reserves special (and well-deserved) outrage for the morning talk show talking head who decried the Red Hen for violating the spirit of the Civil Rights Act. Now, I’m tempted to go for the easy joke here: if a bake shop in Colorado gets to refuse service to folks based on their marital partners, it seems that discrimination on the basis of employer should be fair game as well.

But the easy joke is too easy and too glib for a law blog. First, the Colorado baker won his court case because his state’s civil rights commission was unconstitutionally biased against his religious views, not because the Supreme Court thinks cake-based discrimination against gay people is permissible. The Constitution is 100% silent on cake-based discrimination, so we’re on our own here. No, the Colorado case was a weird decision based on weird facts, and now there’s a growing body of law allowing businesses to use the First Amendment’s freedom of religion clause as both shield and sword. Great. Fine. Whatever.

Second, take a step back and let’s talk about what discrimination actually means. Uyehara touched on this, but discrimination is the unfair treatment of a class of people who share some immutable characteristic. The Fifteenth Amendment recognizes three characteristics of people upon which it’s illegal to discriminate: race, color, and previous condition of servitude. Congress has added a few more to that list, and now it looks something like this:

  1. Race
  2. Color
  3. Gender
  4. Religion
  5. National Origin
  6. Age
  7. Disability
  8. Genetic Information

When discrimination is alleged, courts take a look, and apply various levels of scrutiny to the defendant’s actions. You will notice that “works for the federal government” is not on that list, otherwise VP Biden could have sued his way into that cookie shop.

Published on under {"Also not protected class"=>"fierce smoky eye"}{"Also not protected class"=>"fierce smoky eye"}

Thursday, June 14 was President Trump’s birthday. Now, for my birthday, I got a notebook with special fountain pen-friendly paper because I live in Brooklyn, and they’ll kick me out if I don’t use an old-fashioned pen.

For the President’s birthday, he and his three favorite children found out they were the subjects of a lawsuit filed by the New York State Attorney General, Barbara Underwood. The AG is suing the four Trumps for their maladministration of the Donald J. Trump Foundation, a not-for-profit corporation; as a bonus, the Foundation itself is a party to the lawsuit.

Now, first things first. This is a civil suit, not a criminal case. While the defendants (the four Trumps and the Foundation they run) are accused of breaking the New York State Not-For-Profit Corporation Law, nobody’s going to jail at the end of this trial. The law says non-profits have to do ABC and can’t do XYZ, and the Attorney General has complained to a court that the Foundation did not do ABC and did do XYZ in violation of the law. Think penalties being imposed and business permits being revoked, not people going to jail.

So in a civil suit, the complainant is the person who files the complaint to the court. In addition to complaining that the defendant(s) did something wrong, the complainant asks the court to do something about it. In this case, the AG has asked the NY Supreme Court to freeze the Foundation’s assets, dissolve the Foundation (i.e. the not-for-profit death penalty), fine the Trumps for the benefits they accreted by breaking the Not-For-Profit Corporation Law, and ban the various Trumps from running New York charities for various lengths of time.

And one last thing: the terms “non-profit” and “not-for-profit” can be used interchangeably. A non-profit is just a kind of corporation with some extra rules on it: it’s not allowed to pay dividends to its shareholders, for example. (More on that below.) A charity is a specific kind of non-profit corporation in New York; not all non-profits are charities, but all charities are non-profits.

Published on under Board of Director? I hardly know ‘er!

Anna Maria Barry-Jester and Mai Nguyen measured how bail works in New York City, analyzing over 100,000 cases handled by the largest public defense organization in the State. When you’re indicted by a grand jury, you’re arraigned – taken to the court and asked by a judge how you plead.

[We] found that how much bail you owe — and whether you owe it at all — can depend on who hears your case the day you’re arraigned. New York’s judges are assigned to arraignment shifts, hearing every case that comes into the court during that time. Because the assignments are random — judges hear cases solely based on when people are arrested and how busy the court is — we can identify whether defendants are being treated equally regardless of who hears their case. They are not.

In New York City, when clients of The Legal Aid Society who were charged with a misdemeanor in 2017 entered their initial arraignment, they had anywhere between a 2 and 26 percent chance of the judge setting a cash bail, depending on which judge was randomly assigned to oversee the court that day. For felonies, the range was even wider: anywhere between 30 and 69 percent. Those not assigned bail are likely to be released without having to pay, which means getting arrested on the wrong day can have a major consequence: You are more than twice as likely to have to pay your way to freedom. Can’t find the money? You’re stuck in jail.

There are a lot of interesting implications here. While I think the idea that the justice system’s imposition of bail is inequitable isn’t terribly controversial (in my circles, at least), seeing it quantified like this is striking. On the one hand, judges are people, and people aren’t identical. There will always be tougher judges and more lenient judges, so long as people are doing the job of setting bail after an arraignment.

But on the other hand, this is a little like having instant replay for called strikes in baseball, or offsides calls in ice hockey. What’s striking isn’t the fact that umpires and referees get it wrong sometimes, it’s how often that happens and what that says about all the times these decisions were made before we could review them qualitatively or quantitatively.

Published on under The other kind of open data