Fogbow

Reality Check wrote: ↑Thu Oct 19, 2023 12:25 pm

Sam the Centipede wrote: ↑Thu Oct 19, 2023 12:20 pm
The esteemed members of the Fogbar can adjudicate as to whether this is a purely administrative thing, whether it is bad to be caught in this way, or what.

I think I know what would say. Attorneys are supposed to know the rules. Has Lauro never once filed an appeal in his 40 year career?

I can't be bothered to look up the D.C. Cir.'s membership requirements, but circuit bar membership is usually trivially easy (read: write a check).

So this attorney should have concurrently sought bar membership, or had the NOA signed by someone who already is a member (or quickly become one).

So more sloppy and unprofessional than evil or incompetent. Thanks nbob!

I wouldn't even call this sloppy. The rules provide several weeks after filing the notice of appeal to obtain membership in the bar of the D.C. Circuit, and that's the end of it.

The procedures for admission to federal courts (or for pro hac vice in any court) are not difficult or time-consuming. That said, however, they usually involve two or three, or four times more work, some of it a little picky, than one would reasonably expect. Although the procedures are generally roughly the same, most courts have one or more annoying little idiosyncrasies that make it impossible simply to mark up a form you might have used for a different court. Orders rejecting motions for admission for a procedural screw-up are extremely common on docket sheets and are frequently addressed to experienced lawyers at big firms.

Also, the application forms frequently (including for the D.C.. Circuit) ask personal questions that need to be answered accurately and thoughtfully, and can't be delegated to staff or an associate.

Finally, many courts, including the D.C. Circuit, require a certificate of good standing from at least one state bar.* Although some states might now make it possible to get certificates immediately online, in my experience the turn-around for obtaining such a certificate (there's always a fee), even on an expedited basis (another fee) is at least several days, frequently longer.

Trump's lawyers had every reason to file an immediate notice of appeal, and there was no good reason to delay the notice in order to get Lauro admitted.

The finger-pointing takes about this are complete bosh.

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*Some courts require a certificate from _every_ court where the applicant is admitted, which can be a hassle.

Thanks chancery, a supe-clear exposition. Either you know what you're talking about or your food at taking it!

So, a nothingburger, hold the mayo, pickle, patty and bun.

Unless this is another delay tactic, of course. "Oh, you mean you're going to hold things up for another week or two to apply to the bar after the error has been noticed?"

Ben-Prime wrote: ↑Thu Oct 19, 2023 7:34 pm Unless this is another delay tactic, of course. "Oh, you mean you're going to hold things up for another week or two to apply to the bar after the error has been noticed?"

The DC Circuit gave Lauro until November 2 to submit his application to practice before them but there is no stay in place so the gag order remains in effect.

Ben-Prime wrote: ↑Thu Oct 19, 2023 7:34 pm Unless this is another delay tactic, of course. "Oh, you mean you're going to hold things up for another week or two to apply to the bar after the error has been noticed?"

No. It doesn't work like that at all. Blanche is apparently admitted in the D.C. Circuit, so the appeal will proceed regardless of whether (and when) Lauro's name is allowed to be on the papers.

And even if Trump didn't have a D.C. Circuit lawyer on the initial notice of appeal, setting the briefing schedule for what is likely to be a highly expedited appeal and the administrative business of Trump's lawyers' membership in the D.C. Circuit bar would probably run on separate tracks.

Edited.

Let's talk about something that matters that's more imporant.* The government has filed its brief in opposition to Trump's motion to dismiss on the claimed grounds of absolute immunity.

https://storage.courtlistener.com/recap ... .109.0.pdf

Here's the opening paragraph:

Defendant Donald J. Trump moves to dismiss the indictment, asking the Court to afford him absolute immunity from criminal prosecution for what he expansively claims was official conduct during his presidency. ECF No. 74 (“Mot.”). That novel approach to immunity would contravene the fundamental principle that “[n]o man in this country is so high that he is above the law.” United States v. Lee, 106 U.S. 196, 220 (1882). The defendant is not above the law. He is subject to the federal criminal laws like more than 330 million other Americans, including Members of Congress, federal judges, and everyday citizens. None of the sources the defendant points to in his motion—the Constitution’s text and structure, history and tradition, or Supreme Court precedent—supports the absolute immunity he asks the Court to create for him. In staking his claim, he purports (Mot. 29) to draw a parallel between his fraudulent efforts to overturn the results of an election that he lost and the likes of Abraham Lincoln’s Gettysburg Address and George Washington’s Farewell Address. These things are not alike. The more apt parallel the defendant identifies (Mot. 17-18) is to judges, who, like a former president, enjoy absolute immunity from civil damages liability for certain conduct but who are “subject to criminal prosecutions as are other citizens.” Dennis v. Sparks, 449 U.S. 24, 31 (1980). The same is true for the defendant.

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* Edit: didn't mean to sound so snappish.

Midnight filings.

Trump seeks to derail election-subversion charges
In series of dismissal motions, Trump makes his move to upend special counsel Jack Smith’s Washington, D.C., case.

Former President Donald Trump has launched a multifront legal attack on the federal charges he’s facing in Washington, D.C., arising from his bid to subvert the 2020 election.

In three motions to dismiss the case filed just before midnight, Trump contended that the case mounted against him by special counsel Jack Smith sought to criminalize his views on the 2020 election and efforts to lobby state lawmakers and Congress.

Politico: https://apple.news/AJVbUp5ePQPuti8XQdDUDdQ

https://abcnews.go.com/US/chief-staff-m ... =104231281

Former President Donald Trump's final chief of staff in the White House, Mark Meadows, has spoken with special counsel Jack Smith's team at least three times this year, including once before a federal grand jury, which came only after Smith granted Meadows immunity to testify under oath, according to sources familiar with the matter.

The sources said Meadows informed Smith's team that he repeatedly told Trump in the weeks after the 2020 presidential election that the allegations of significant voting fraud coming to them were baseless, a striking break from Trump's prolific rhetoric regarding the election.

According to the sources, Meadows also told the federal investigators Trump was being "dishonest" with the public when he first claimed to have won the election only hours after polls closed on Nov. 3, 2020, before final results were in.

"Obviously we didn't win," a source quoted Meadows as telling Smith's team in hindsight.

Just heard that on MSNBC on Deadline White House.

These people all deserve each other. Slimeballs, all of them.

Trump:

"I barely even know Meadows. He used to bring the ketchup bottles for lunch I think"

Tonight the Special Counsel filed its opposition to Trump's motion to stay the "gag" order pending appeal, highlighting Trump's recent attack on Mark Meadows in the context of reports of his testifying under a grant of some kind of immunity.

https://assets.bwbx.io/documents/users/ ... 32E_nlI/v0

I've only glanced at the brief, but there's a lovely footnote about Trump's tantrum this afternoon in NYC, which you can read about here: viewtopic.php?p=224198#p224198

Edit: fixed link to brief.

Donald Trump's Attorneys' Plea Deal May Have Cost Him His Defense

https://www.newsweek.com/donald-trump-a ... 1698342909

Plea deals reached by former lawyers for Donald Trump in Georgia may have hurt the former president's defense in his Washington D.C. case involving the 2020 election, according to a new filing by Special Counsel Jack Smith.

On Wednesday, Special Counsel Smith filed a motion responding to Trump's plans to mount an "advice of counsel" defense. Such a defense—also known as an affirmative defense—would normally involve the defendant waiving attorney-client privilege and admitting to the alleged conduct on the advice of lawyers in the hope it would exonerate them.

Smith's motion said that if Trump filed the defense, "there is good reason to question its viability, especially because in the time since the Government filed its motion three charged co-defendant attorneys pleaded guilty to committing crimes in connection with the 2020 election."

"At the very least, those guilty pleas highlight the complications that may arise if the defendant should assert an advice-of-counsel defense and underscore the need to resolve all issues well before the start of trial. If disclosure is delayed, it may result in disruption to the trial schedule," the motion by Smith said.

Volkonski wrote: ↑Thu Oct 26, 2023 4:00 pm Donald Trump's Attorneys' Plea Deal May Have Cost Him His Defense

https://www.newsweek.com/donald-trump-a ... 1698342909

Plea deals reached by former lawyers for Donald Trump in Georgia may have hurt the former president's defense in his Washington D.C. case involving the 2020 election, according to a new filing by Special Counsel Jack Smith.

On Wednesday, Special Counsel Smith filed a motion responding to Trump's plans to mount an "advice of counsel" defense. Such a defense—also known as an affirmative defense—would normally involve the defendant waiving attorney-client privilege and admitting to the alleged conduct on the advice of lawyers in the hope it would exonerate them.

Smith's motion said that if Trump filed the defense, "there is good reason to question its viability, especially because in the time since the Government filed its motion three charged co-defendant attorneys pleaded guilty to committing crimes in connection with the 2020 election."

"At the very least, those guilty pleas highlight the complications that may arise if the defendant should assert an advice-of-counsel defense and underscore the need to resolve all issues well before the start of trial. If disclosure is delayed, it may result in disruption to the trial schedule," the motion by Smith said.

Would this perhaps have something to do with the idea that now Smith's also got the crime-fraud exception in his back pocket to pierce attorney-client privilege as well? Or am I overthinking?

Adjacent but not identical concepts. The attorney-client privilege is a rule of evidence, which can be defeated by showing that communications sought to be excluded as evidence by the privilege were in fact made for the purpose of committing future crimes or frauds (as opposed to discussing crimes previously committed). The fact that a communication between client and lawyer loses its privileged character because of the crime/fraud exception does not necessarily mean that the attorney involved has independent criminal liability.

Advice of counsel is a defense to the underlying charge, on the basis that the defendant lacked a culpable mental state because he relied in good faith on a lawyer's advice. Quoting from the government's reply in support of its motion for an order to compel Trump to fish or cut bait on an advice of counsel defense:

See United States v. West, 392 F.3d 450, 456-57 (D.C. Cir. 2004) (“The defense of advice of counsel necessarily fails where counsel acts as an accomplice to the crime.”).

In order to create a defense called "reliance upon legal advice," Prisoner #P01135809 will be required to take the witness stand, take the oath, and testify that his lawyers said it was OK to overturn the outcome of the 2020 election.

He can't make that defense work without convincing a jury (or judge) that he relied upon the lawyers' advice, and to do that he MUST testify.

Oh, wait. He testified yesterday, and did such a shitty job the judge fined him $10 large for being a lying asshole.

This is really getting fun!

Wouldn't Trump also need to persuade the relevant lawyers not to contradict his assertions? And why would they assist? That might go against plea deals (sorry, I don't know who is involved in what, too many people for me).

And if the lawyers agreed that they advised Trump to act illegally, that's not good for them or their law licenses.

The truth is, any lawyer who said he really won the election was approved and elevated to the highest level of representing him, and anyone (cough, cough, Bill Barr) who pointed out that there were 66 or so actual lawsuits with a grand total of ZERO EVIDENCE was a lawyer upon whom Prisoner #P01135809 did NOT rely.

So he only relied upon advice that he pre-judged in his favor. That's not a valid defense based on reliance upon legal advice.

As chancery notes, in the D.C. Cir., if your lawyer's advice was to crime, you can't rely on that lawyer's advice.

bob wrote: ↑Fri Oct 27, 2023 2:21 am As chancery notes, in the D.C. Cir., if your lawyer's advice was to crime, you can't rely on that lawyer's advice.

The only time you can rely on advice to crime is if the cops advise you to crime. **


** As with everything in the law, there are, of course, exceptions.

bob wrote: ↑Fri Oct 27, 2023 2:21 am As chancery notes, in the D.C. Cir., if your lawyer's advice was to crime, you can't rely on that lawyer's advice.

Which, if I remember Foglaw posts long ago about something or other, means effectively waiving any attorney-client privilege because the lawyer must be able to defend himself from accusations of "It was him! Him! He done told me to crime!"

Even the lawyers Trump used will surely be able to mount an effective defense against such an accusation to save their own legal souls. I suspect the first counterpunches would be something like "on <date> Mr. Trump tweeted '<lawyer> is NOT my Attorney!', on <date> Mr. Trump tweeted 'I never met <lawyer>!! He is a CLOWN and I would never ask or take his advice!!'"

Although, having said that, prosecutors would have combed tweets and other public materials for such refutation before the implicated attorneys are called to a witness stand.

It could be a fun watch!

Foggy wrote: ↑Thu Oct 26, 2023 9:55 pm In order to create a defense called "reliance upon legal advice," Prisoner #P01135809 will be required to take the witness stand, take the oath, and testify that his lawyers said it was OK to overturn the outcome of the 2020 election.

He can't make that defense work without convincing a jury (or judge) that he relied upon the lawyers' advice, and to do that he MUST testify.

Oh, wait. He testified yesterday, and did such a shitty job the judge fined him $10 large for being a lying asshole.

This is really getting fun!

I know this thread is about the J6 case, but your comment about the $10k fine calls to mind one of my favorite things Engoron has said...it just sums trump up so perfectly: “Using imprecise language as an excuse to create plausible ambiguity..." Cohen phrased it as "speaking like a mob boss." Hopefully when Trump takes the stand, the "imprecise language" will be unacceptable and they'll pin him down. In our house we call that being a "greasy bean." You grease up a bean and when you try to hold it on one place, it'll squirt right out from under your finger. Impossible to hold to one place.

Rolodex wrote: ↑Fri Oct 27, 2023 4:58 pm In our house we call that being a "greasy bean." You grease up a bean and when you try to hold it on one place, it'll squirt right out from under your finger. Impossible to hold to one place.

I guess I should respect other people's cultures … or is that a religious exercise?

Sam the Centipede wrote: ↑Fri Oct 27, 2023 5:12 pm

Rolodex wrote: ↑Fri Oct 27, 2023 4:58 pm In our house we call that being a "greasy bean." You grease up a bean and when you try to hold it on one place, it'll squirt right out from under your finger. Impossible to hold to one place.

I guess I should respect other people's cultures … or is that a religious exercise?

Is a metaphorical term imprecise, or ambiguous?