This is a rare day off for me. Thanks for ruining it with context and thoughtful analysis. I hope Fani Willis brings RICO charges while you’re on vacation.
I don't believe that Ken White is mentioned, not even once, in the Constitution, so does anything he say even count? Is he even accounting for how hard everyone else is wish-casting in this case?
Thanks Ken. A much needed counter to a lot of the punditry I've seen.
I don't think the greatest risk is Judge Cannon making some insane ruling (like the much-discussed judgment of acquittal). Rather, I think the greatest risk is that she will be overly-accommodating of what defense Trump wants to put on. I expect Trump's team will want to put on a "flood the zone with shit" strategy to try to thoroughly confuse the jury with red herring arguments and evidence. If the judge does not aggressively police this, I could see the prosecutors having a difficult time.
I don't understand. Isn't that the judge's job to police, agressively or not, when the defense is attempting to thorougly confuse the jury? And doesn't the prosecution object to the defense's red herring arguments and evidence?
This is a really good example of where the law and how it is applied runs strongly into political reality. While I am more than happy to agree with what you have said - the facts of the matter is that both the left and right are absolutely losing all faith in our institutions, and arguments like this are a clear reason why. I absolutely have zero faith in the Supreme Court. If someone tells me the Supreme Court ruled on something and thus it's constitutional, my reaction is "No, it's not constitutional - it's just approved by the Federalist Society." Legal arguments and nuance are all well and good - but how applicable will your legal arguments be if the country rips itself apart in civil war?
I did not say the ends should justify the means. No where did I say that. However, the belief of lawyers and judges that individuals like myself - who see the outright corruption of the Supreme Court and judges like Cannon - are "unlettered peasants" has been a view tested by multiple would be tyrants throughout history, with much the same outcome each time.
It is not "vibes" to say "Oh hey, a political organization with a set of absolutely specific beliefs wants to have rulings that go against the will of the majority AND the settled law... and look at that! The justices that they are giving a ton of money too directly and indirectly are ruling on laws to match their will! Maybe this is not cool." Again, if you think this is "vibes" then I don't know what to tell you.
As an outsider looking in, I see lawyers and judges having completely forgotten what role they play in the wider society. There is a significant disconnect between what our society promises us (our social contract) and the actual terms.
To put this into legal terms that the lawyers here might understand, the American people have a tort claim against the legal system for failure to uphold the social contract. And with reason. I have absolutely zero faith in the federal courts or the supreme court. I'm not alone in this, and that's a VERY DANGEROUS thing.
The legal profession which dominates our courts, and to a lesser extent our legislative branch is directly responsible for the mess we are in today as a civil society.
To answer your specific questions:
- Judges appointed by an executive cannot rule on cases related to the executive who appointed them or to anyone involved in the appointment process.
- Judges suspected of violation of the 1978 Ethics in Government Act or the 1989 Ethics Reform Act are to be removed from the bench while waiting on an investigation; if the independent investigation finds that they violated federal ethics laws, they are removed from the bench immediately, in addition to appropriate punishments as laid out in the previously mentioned acts.
The supreme court justices used put in the time and effort to resist their own political biases and to do their best to follow the law. At some point the supreme court justice selection process became completely useless and completely politicized. Prospective justices were practically obligated to sign a loyalty oath to the president who appointed them. At that point the system broke down, and the Supreme Court went rogue. It’s now a second legislative branch, sort of like the current house of representatives. And no better.
I don't think Ken meant that the judiciary should never change. Here the rules are leading to a very clearly wrong outcome. No judge should ever be assigned to a case where they have shown they will ignore reality and the law on behalf of this specific client.
Also, come on. People can point out that things are bad or unjust without having a perfect plan to fix them already formed.
I can't say I enjoy when you take a particularly encouraging wind from my sails, but I always learn something (or several things) when you do. Thanks for sharing your insight, expertise, and experience.
Jun 13, 2023·edited Jun 13, 2023Liked by Ken White
re "You’re probably saying “wow, that (b)(1) sure seems broad", no, by literal meaning it is exclusively not "broad", that is to say it only applies to he-pronoun judges.
I think the problem here is we are asking the law to do something it's not (and shouldn't be) designed to do -- settle the question of whether a popular political leader has behaved badly.
Criminal law isn't really designed to make sure that people who behave badly get their just desserts. Rather, it's designed to balance society's interest in detering crime with the need to limit the incredible power of the government to take away people's liberty. As such the law creates all sorts of ways in which the defendant is advantaged in a criminal case *knowing* that means guilty parties might go free if a district court judge makes bad calls (while if they make bad calls for the prosecution the defense can get the verdict overturned). And that's the way things should work.
Yup, sometimes the guilty party goes free but any other system would allow the government to (even more) use it's superior resources to subject even a wrongly accused person to a neverending hell of appeals and motions they don't have the resources to fight (and may even be waiting in jail).
Ofc it's disgusting that Cannon seems to be biased the way she is but that's the thing. But judges are humans who are full of bias and that's why we give the defendant so much more ability to appeal than the prosecution. I mean looking through history it's full of biased judges.
Unfortunately, the public is going to see this as reaching a decision on whether Trump *deserves* to be in prison for his behavior and won't see a not guilty verdict as a thing that sometimes happens even for obviously guilty individuals.
God, I am going to sound like a full-fledged protuberance on the MAGA hind-quarters… but the case for recusal is simply not there.
The relevant Scalia quote makes it clear that questionable jurisprudence, litigating party “preference” (in remark or action) and even outright stupidity - are not grounds for impartiality …principally because they are not extrajudicial.
Live by the sword, die by the sword… thanks Damocles.
Thinking of changing my online accounts display names to "Unlettered Peasant" and using in my email signature
I love being an unlettered peasant :D
Haha. SAME.
My uncle who works for Nintendo disagrees with your interpretation of the recusal statue
This is a rare day off for me. Thanks for ruining it with context and thoughtful analysis. I hope Fani Willis brings RICO charges while you’re on vacation.
What I’d like to see is Jack Smith bringing RICO charges.
Hah!
After this disappointment I think our only solution now is hoping the Marshal of the Supreme Court will arrest Trump.
(Runs away)
Run away???
No way...
#1. He can't run
#2. He'd grab the first golf cart he saw and put the pedal to the metal
isn't he supposed to arrest Ken first?
He has been rather lax on his job duties.
I don't believe that Ken White is mentioned, not even once, in the Constitution, so does anything he say even count? Is he even accounting for how hard everyone else is wish-casting in this case?
Thanks Ken. A much needed counter to a lot of the punditry I've seen.
I don't think the greatest risk is Judge Cannon making some insane ruling (like the much-discussed judgment of acquittal). Rather, I think the greatest risk is that she will be overly-accommodating of what defense Trump wants to put on. I expect Trump's team will want to put on a "flood the zone with shit" strategy to try to thoroughly confuse the jury with red herring arguments and evidence. If the judge does not aggressively police this, I could see the prosecutors having a difficult time.
I would expect extremely defense-friendly jury instructions.
I don't understand. Isn't that the judge's job to police, agressively or not, when the defense is attempting to thorougly confuse the jury? And doesn't the prosecution object to the defense's red herring arguments and evidence?
I think the 11th Circuit will remove her by issuing a writ of primae nocta.
What about a writ of ligma?
That's about as likely as a writ of linguini.
But the first one got me laughing..
The judge lacks the customary anatomy.
This is a really good example of where the law and how it is applied runs strongly into political reality. While I am more than happy to agree with what you have said - the facts of the matter is that both the left and right are absolutely losing all faith in our institutions, and arguments like this are a clear reason why. I absolutely have zero faith in the Supreme Court. If someone tells me the Supreme Court ruled on something and thus it's constitutional, my reaction is "No, it's not constitutional - it's just approved by the Federalist Society." Legal arguments and nuance are all well and good - but how applicable will your legal arguments be if the country rips itself apart in civil war?
As Ken has said previously: if we let the end justify the means, what's the point?
How would we codify into law something that said Cannon should recuse based on our vibes?
I did not say the ends should justify the means. No where did I say that. However, the belief of lawyers and judges that individuals like myself - who see the outright corruption of the Supreme Court and judges like Cannon - are "unlettered peasants" has been a view tested by multiple would be tyrants throughout history, with much the same outcome each time.
It is not "vibes" to say "Oh hey, a political organization with a set of absolutely specific beliefs wants to have rulings that go against the will of the majority AND the settled law... and look at that! The justices that they are giving a ton of money too directly and indirectly are ruling on laws to match their will! Maybe this is not cool." Again, if you think this is "vibes" then I don't know what to tell you.
As an outsider looking in, I see lawyers and judges having completely forgotten what role they play in the wider society. There is a significant disconnect between what our society promises us (our social contract) and the actual terms.
To put this into legal terms that the lawyers here might understand, the American people have a tort claim against the legal system for failure to uphold the social contract. And with reason. I have absolutely zero faith in the federal courts or the supreme court. I'm not alone in this, and that's a VERY DANGEROUS thing.
The legal profession which dominates our courts, and to a lesser extent our legislative branch is directly responsible for the mess we are in today as a civil society.
To answer your specific questions:
- Judges appointed by an executive cannot rule on cases related to the executive who appointed them or to anyone involved in the appointment process.
- Judges suspected of violation of the 1978 Ethics in Government Act or the 1989 Ethics Reform Act are to be removed from the bench while waiting on an investigation; if the independent investigation finds that they violated federal ethics laws, they are removed from the bench immediately, in addition to appropriate punishments as laid out in the previously mentioned acts.
--
This isn't rocket science. It is not vibes.
The supreme court justices used put in the time and effort to resist their own political biases and to do their best to follow the law. At some point the supreme court justice selection process became completely useless and completely politicized. Prospective justices were practically obligated to sign a loyalty oath to the president who appointed them. At that point the system broke down, and the Supreme Court went rogue. It’s now a second legislative branch, sort of like the current house of representatives. And no better.
Sorry. You lost me at “tort claim” for breach of contract.
The social contract is literally vibes tho.
I didn't say you said that. I said Ken said it.
Okay - it makes no sense in the context of my comment you were replying too. I cannot figure out what your intent was.
I don't think Ken meant that the judiciary should never change. Here the rules are leading to a very clearly wrong outcome. No judge should ever be assigned to a case where they have shown they will ignore reality and the law on behalf of this specific client.
Also, come on. People can point out that things are bad or unjust without having a perfect plan to fix them already formed.
I don't think Ken meant that either. I didn't.
I can't say I enjoy when you take a particularly encouraging wind from my sails, but I always learn something (or several things) when you do. Thanks for sharing your insight, expertise, and experience.
Mr. White,
I need to inform you that among we peasants there are some who are lettered.
I'll have you know that I indeed learned my ABCs using patches that my u2nlettered, craftsman grandfather hand-carved out of rich Corinthian leather.
Be that as it may, Thank You for the ongoing legal education you provide all peasants, be they lettered or unlettered. 😉
Ken, you never fail to disappoint, and I suspect you like being that way. But it's a good thing I'm a masochist, because the truth hurts.
What if the recusal motion took the form of this Dr. Seuss book (just replace "Marvin K. Mooney" with "Judge Cannon")?
https://www.youtube.com/watch?v=4nB0QpwRgV4
(Sighs) "No, there is no recusal scenario that gets you out of the Kobayashi Maru ... "
re "You’re probably saying “wow, that (b)(1) sure seems broad", no, by literal meaning it is exclusively not "broad", that is to say it only applies to he-pronoun judges.
I think the problem here is we are asking the law to do something it's not (and shouldn't be) designed to do -- settle the question of whether a popular political leader has behaved badly.
Criminal law isn't really designed to make sure that people who behave badly get their just desserts. Rather, it's designed to balance society's interest in detering crime with the need to limit the incredible power of the government to take away people's liberty. As such the law creates all sorts of ways in which the defendant is advantaged in a criminal case *knowing* that means guilty parties might go free if a district court judge makes bad calls (while if they make bad calls for the prosecution the defense can get the verdict overturned). And that's the way things should work.
Yup, sometimes the guilty party goes free but any other system would allow the government to (even more) use it's superior resources to subject even a wrongly accused person to a neverending hell of appeals and motions they don't have the resources to fight (and may even be waiting in jail).
Ofc it's disgusting that Cannon seems to be biased the way she is but that's the thing. But judges are humans who are full of bias and that's why we give the defendant so much more ability to appeal than the prosecution. I mean looking through history it's full of biased judges.
Unfortunately, the public is going to see this as reaching a decision on whether Trump *deserves* to be in prison for his behavior and won't see a not guilty verdict as a thing that sometimes happens even for obviously guilty individuals.
God, I am going to sound like a full-fledged protuberance on the MAGA hind-quarters… but the case for recusal is simply not there.
The relevant Scalia quote makes it clear that questionable jurisprudence, litigating party “preference” (in remark or action) and even outright stupidity - are not grounds for impartiality …principally because they are not extrajudicial.
Live by the sword, die by the sword… thanks Damocles.