Notices by I moved to Mastodon.social (teri_kanefield@law-and-politics.online)

Hi, everyone,

As I explained yesterday, I am switching servers.

My new account is here:
@Teri_Kanefield@mastodon.social

Please follow me on the other side and unfollow me here.

Last year when I used the migration function, thousands of people got stuck in Mastodon Purgatory with an error message telling them I hadn't approved them as followers. (Oy!)

In a few weeks, I'll use the migration function, but I don't trust it.

I'll start posting over there with links here (until I migrate entirely).

Hi, Fediverse friends,

I have been busy with a technical glitch. I needed to restore a backup of my Wordpress author website, my backup service had a glitch, and to make a sad story short, I am currently rebuilding my author website.

I may shut down my private Mastodon server and move to an established server.

My server is more work and money than we anticipated.

After this past week, I’m inclined to spend less time on technical stuff.

I’ll let you know if I’m going to move.

@yacc143 @TruthSandwich@qoto.org

See: https://terikanefield.com/trump-gag-orders-and-the-first-amendment-its-complicated/

@yacc143 @TruthSandwich@qoto.org

I have a blog post coming shortly.

Is anyone listening to the oral arguments in the appellate court about the Trump gag order in the D.C. case?

https://www.youtube.com/USCourtsCADC

Right now the appellate court is asking about Trump naming witnesses who are not public figures and the interest of the trial court to protect the integrity of the trial.

This is a place where the gag order is strongest.

They are disputing which test should apply.

1/

Here is what is gong on:: There is a gap in the law. The court has to write test because there isn't one.

There is no legal test because in the past, it was the lawyers who had to be silenced.

No defendant has challenged the routine gag orders that are applied.

The difference is an important one: Lawyers can be silenced because they are officers of the court and different rules apply to them.

The appellate court wants to come up with a test that will withstand SCOTUS scrutiny.

2/

The Court is now trying to figure out how to revise the gag order to take care of vagueness and prior restraint issues.

Reading the tea leaves: The Court seems to be acknowledging that there are portions of the gag order that need to be tweaked to address vagueness and issues of prior restraint.

The court keeps talking about "prophylactic remedies," which gets us to prior restraints, which are problematic, which is why this is going on and on.

3/

Hypothetical: It is public record that Pence is going to testify the next day. Can Trump tweet out, "Pence can still do the right thing if he says the right stuff tomorrow."

Court: Is this communicating with the witness?

Lauer said "no"

OH MY. Yikes. He won't give an inch.

The government lawyer is up, and he is also talking too fast. (Signs of overpreparing?)

They're talking about court staff, which is an easier issue.

4/

The reality is that the panel of justices probably drafted their opinion and they are right now poking the lawyers to see where their decision might be weak.

They're also pressing the government lawyer as hard as they pressed Sauer.

Also, the judge did throw in earlier that there are strong First Amendment protections for Trump.

Now they're talking about Trump naming the special prosecutor himself, which is more difficult under the First Amendment because he's a public figure.

5/

The issue here is that the word "target" in the gag order is too vague when applied to the prosecutors, who are public figures.

Actually, the government is also staking out an extreme position which is that if Trump thinks that the prosecutor is politically biased, he can file a motion but can't say it in the media.

Reading the tea leaves, it appears that that the gag order will stand with numerous modifications.

6/

Tea leaves: The word "target" is too vague.

More tea leaves: Public figures will be excluded.

Now the issue is whether line prosecutors are public figures.

Next issue: What about witnesses who are also public figures? What if they are writing books about Trump? Is it fair to say Trump can't respond?

The standard the government is offering right now might be too vague.

Also the government's suggestion that Trump should be limited to what other defendants say doesn't work.

7/

I hope anyone listening comes away at least with this: These issues are not easy or straightforward.

Almost all the issues Trump raises in court are silly or without basis.'

This is probably the first issue I have seen Trump raise in court that is not a slam dunk in the Trump Will Lose Department.

The court pointed out (subtly through a question) that there is something wrong with the idea that the moment an indictment is filed, a defendant loses First Amendment rights.

8/

I want to follow up on the reason I see so much anger and cynicism.

(The anger isn't directed at me. It looks like this: "Trump is above the law! There is no accountability! The DOJ does nothing!)

There were some interesting comments about what I see so much of it.

I'll add another: People assume that I am liberal and in the same information bubble and therefore, I will agree with them when they repeat the current memes.

It's a group-think thing.

1/

If you find yourself in a constant state of rage, it is not because of Trump.

It is because of how you are getting your news.

Trump does not have the power to reach into your brain and rile you up.

You all know my theory: Because of our current information disruption, and because news exists in a click-driven world, and because sensational opinions get more clicks than boring facts, the facts are lost in a firehose of opinions and speculation.

This, in turn, creates a misinformation-panic cycle, that heightens authoritarian impulses in people not prone to authoritarian thinking, thus endangering democracy.

The Washington Post's Jennifer Rubin just said (on Threads) that last night's results show that 90% of political reporting is garbage.

That's because 90% of "coverage" is speculation and opinion. An email from the NYT "The Tilt" assured me that it was a good night for Democrats but that doesn't mean anything for 2024.

Rubbish.

Elections tell us how voters feel. Polls do not and pundits do not.

From:
@dsurkin

Law clerks in NY Supreme Court (for non-New Yorkers, that's the major trial court, not an appellate court) are lawyers characterized by their excellent credentials.

Unlike in federal court where clerks get their jobs right out of school and serve a few years, the NY law clerks serve as long as the judge, or longer if a successor judge is pleased with the work.

Usually attorneys trying to contact a judge contact the law clerk first.

7/

Someone asked if a clerk has a law degree.

Yes. Not only that, but they are extremely difficult jobs to get and generally go to the stop students from the top law schools.

There are career clerks (that's their permanent job) and clerks who cycle though out of law school for a few years. Getting one of those clerkships means you were a top student.

People fresh out of law school are the best at legal research because they just did lots of it.

I don't know this clerk's employment status.

6/

Sometimes the most direct and obvious answer is the correct one. Trying to provoke a judge is one of the stupidest things a litigator can do.

After seeing what the cleck looks like on the bench, the simplest explanation is that the judge's sense was probably correct.

I only saw a few pictures of how she looks on the bench, but from the pictures, I'll say this: If she were a man, they'd take her seriously.

Trump world can use women (and like to have women around them!). That's different.

5/

Someone asked: "I've read suspicions that they are trying to provoke the judge and get some grounds for a later mistrial. What's your thought on that?"

That won't work. I spent 12 years writing appeals for people who lost their trials, so I can speak with confidence when I say provoking a judge doesn't get you a mistrial.

Provoking a judge makes you look bad in front of appellate judges, most of whom were trial judges and are generally in sympathy with the judge.

4/