erik lundegaard

Law posts

Tuesday April 23, 2024

Something Important to Acknowledge

“It's important to recognize the historical moment: that notwithstanding all the dilatory tactics, the delays, the whining, the yelling, the motion practice, that even though you have three trials that are delayed for some reason—whether it's the Supreme Court or this ethics issue that was raised in Georgia, or other appeals issues in the DC case—this trial is going forward, and someone who was the president of the United States, aspires to be the president of the United States again, with secret service agents in tow, is finally facing accountability. ... That's something I think is important and special to acknowledge.”

-- former U.S. attorney for SDNY Preet Bharara, on his podcast “Cafe Insider,” last week as voir dire began in the Trump hush-money trial in Manhattan

Posted at 07:57 AM on Tuesday April 23, 2024 in category Law   |   Permalink  

Friday March 22, 2024

Poking Holes in Potatoes

Voting rights attorney Marc Elias recently posted an excerpt from a 2022 New Yorker profile of him on social media. Worth reading the excerpt:

One evening, when I was talking to Elias, trying to glean what he does when he isn't working—nothing, apparently, except play with his four dogs (Frost told me that Elias “probably needs more hobbies”)—he told me a story. It was about a man whom Elias met around the time of his bar mitzvah. “This guy, an American prisoner of war, who was Jewish, in Nazi Germany, was put in a work camp where he had to pick potatoes,” Elias said. “He and the other men would take little pieces of barbed wire from the fence, and stick holes in the potatoes” to make them more perishable. “Just imagine an undernourished prisoner of war, in a thin uniform, with no gloves, in the winter, taking barbed wire in his bare hands and poking holes so the potatoes would rot and the German Army would not have fresh potatoes.”

This is what Elias recalls when people say that his litigation won't make a difference, or that he's bringing too many cases during a time when the courts lean overwhelmingly conservative. “I'm still going to try,” Elias continued. “It may not work. But I'm going to poke holes in the potatoes for as long as I have to, until democracy is either safe or I no longer can serve any useful purpose.”

Worth reading the whole profile, entitled “The First Defense Against Trump's Assault on Democracy,” by Sue Halpern.

BTW, I can't imagine meeting or knowing Elias and your reaction to his work—to his face!—is “It won't make a difference,” rather than shame that you yourself are not doing more. 

Posted at 01:48 PM on Friday March 22, 2024 in category Law   |   Permalink  

Wednesday March 06, 2024

Paxton, Moody and Section 230

Via Preet Bharara's Cafe Insider site, former U.S. attorney and current law professor Barb McQuade talks up the continuing difficulties of determining, for legal purposes, what exactly social media companies are. 

Are they town squares, where anyone can speak? Are they publishers, which can regulate content? Can states such as Texas and Florida, in the NetChoice v. Paxton and Moody v. NetChoice cases currently before the U.S. Supreme Court, pass laws saying they can't regulate content because they are in fact town squares, and doing so would impinge upon free speech?

My decidedly non-J.D. thoughts: Social media platforms are both town square and publisher, and of course they can regulate user-created content, and Texas and Florida saying they can't is the violation of free speech, not the other way around. I'd go further and amend the immunity conferred to platforms by Section 230 of the 1996 Communications Decency Act, which made them not liable for user-created content the way publishers are liable. I'd actually like to see the world where that immunity was never conferred in the first place. I get the feeling it would be a good sight better, or at least less disingenuous, than this one.

McQuade makes her own case for how to better regulate the Facebooks of the world, including:

  • Requiring social media companies to disclose their algorithms
  • Requiring disclosure of paid content: not only who is paying for ads, but the communities they are targeting

God, yes. This experiment is not working, kids. We were never ready for it.

Posted at 07:49 AM on Wednesday March 06, 2024 in category Law   |   Permalink  

Saturday January 27, 2024

$83.3 Mil

Yesterday, after I texted a friend of mine the above number—the amount a jury told Donald Trump he had to pay writer E. Jean Carroll for defamation, or defamation after the fact, or defamation after the facts had found for a first defamation—my friend responded in the weary manner of people on the left: Yes, but will she ever see it? Which, yeah, I get. Trump can appeal, Trump can delay—and he's good at appealing and delaying—but at least here he has no case to appeal because his parking-garage lawyer didn't set it up to be appealable. She needed to introduce evidence correctly, or offer objections at the right moment, and she didn't do these things. So appeals may be shorter and more pointless than normal.

More important: Give us this moment. For god's sake. Let's bask in it. Let's enjoy it. 

Here's some basking: a good article from Eric Lach over at The New Yorker. I'm basking in the headline alone: “Nine Regular People Tell Donald Trump to Shut Up and Pay Up.” How perfect is that? Lach references it near the close while also taking a swipe at the GOP:

After taking a close look at the facts, nine people picked at random determined that Trump was responsible for what he did, and needed to be punished for it. In this, the jury has gone further than the United States Congress was able to go. It gives you some kind of hope.

Why $83.3 million? Because Carroll had good lawyers, led by Roberta Kaplan, whom, in my day job, we covered nearly 10 years ago. Maybe it's time to do it again.

It's a huge number. Last spring, after hearing a related case that Carroll brought against Trump, an earlier jury had also sided with Carroll, concluding that Trump had sexually abused her and then defamed her—but the award in that case was five million dollars. During this second trial, which began in mid-January, Carroll's lawyers emphasized that Trump's attacks on their client continued, even after the first jury found against him. “This is a fake story, made-up story,” Trump said at a CNN town hall last spring. “What kind of a woman meets somebody and brings them up and within minutes you're playing hanky-panky in a dressing room?” If anything, the attacks escalated after the last trial. “For more than four years, he has not stopped,” Shawn Crowley, another of Carroll's lawyers, said. “How much money will it take to make him stop?” Kaplan, during her closing arguments, reminded the jurors that Trump claims to be a billionaire. “It will take an unusually high punitive-damages award to stop Donald Trump,” she said. She suggested at least twenty-four million dollars. The jurors came to $83.3 million all on their own.

Trump is still the presumptive GOP nominee. But I'm enjoying a moment of well-deserved comeuppance for shit stain of a person. Let there be many, many more.

Posted at 01:16 PM on Saturday January 27, 2024 in category Law   |   Permalink  

Wednesday January 10, 2024

Trump to D.C. Circuit: Let Biden Assassinate Me

Yesterday, Donald Trump and his attorneys showed up at the D.C. Circuit Court to argue that presidents, once they leave office, and assuming they haven't been impeached and convicted in Congress, are absolutely immune from any official actions taken while in office.

It's an attempt to dismiss ... which case again? Right. The D.C./Jack Smith case: obstructing the 2020 election. As opposed to the Florida case (classified documents), the Georgia RICO case (conspiring to overturn the results in the 2020 Georgia vote), and the NY case (hush money to a porn star). Hard to remember them all. 

But yes, that's what they're arguing. It took about two seconds for one of the three circuit court judges, Judge Florence A. Pan, to bring up the obvious hypothetical:

“Could a president order SEAL Team Six to assassinate a political rival? That's an official act—an order to SEAL Team Six.”

Trump's lawyer, after much waffling, basically owned up to that.

What I love? The argument is not just an unethical argument that goes against the entirety of American democracy and rule of law; it's also monumentally stupid—for Trump. If it worked, if it became law, the first political rival who could be assassinated would be Trump. Trump's team is basically imploring the court to assign kingly powers to BIDEN.

Which ... might not even be that bad. It could solve a lot of problems. Send SEAL Team Six to get rid of Trump, half the Republicans in Congress, and all Republican appointess on the U.S. Supreme Court. Then, with true jurists, relitigate and overturn. Done and done. Now let's tackle global warming. 

But I shouldn't joke. As Joyce Vance said on “The Cafe Insider” podcast with Preet Bharara: “If the Supreme Court were to rule for Trump before we would even theoretically get to a new Trump presidency, Joe Biden could take steps that would prevent that from happening. ... In so many ways, this has always felt like a non-starter to me. Because if you think about what it means for Trump to win this argument, it essentially means the end of democracy as we know it.”


Posted at 03:40 PM on Wednesday January 10, 2024 in category Law   |   Permalink  

Friday October 27, 2023

Where The Hell She Came From: Jenna Ellis

Sometimes you look at certain people on the national or world stage (particularly U.S. Republicans, these days) and wonder where the hell they came from. Thanks to Public Notice, we have an answer for at least one of them: Jenna Ellis, the Trump election-fraud attorney who pled guilty this week to “one felony count of aiding and abetting false statements in Fulton County Superior Court.” She got five years probation, was fined $5k, and has agreed to cooperate with prosecutors in testifying against her co-defendants. One assumes that's not-good news for Rudy Giuliani and Donald J. Trump.

So where the hell did Jenna Ellis come from?

  • In 2011, she graduated from the University of Richmond School of Law
  • In 2012, she became a deputy DA in Weld County, Col., working mostly traffic court
  • Six months later, she was fired from same for “unsatisfactory performance”
  • Won an unemployment claim even though the examiner agreed with the cause of dimissal: “... the officer found that Ellis had only 'committed an irreparable egregious act' in a small portion of her cases and was 'performing the duties to the best of her ability' given the 'deficiencies in her education and experience.'” (<-- Yes, this.)
  • Six-month stint with discovery processing company
  • Several years as pre-law adviser at Christian college; wrote several Christian-themed, anti-homosexual books
  • “Then it was on to gigs at rightwing Christian outfits, including James Dobson's Family Institute and the Thomas More Society, which got her booked for conservative media hits.”
  • In 2019, Trump liked what he saw of her on Fox News and she joined his reelection campaign
  • In 2020, she attempted to undermine American democracy

Not exactly a great CV. Throughout, she's lied about her credentials while whapping people with the Bible. Public Notice suggests that while she's pled guilty, and despite the waterworks, she's hardly contrite. Will be interesting to hear her testimony next year.

Posted at 11:52 AM on Friday October 27, 2023 in category Law   |   Permalink  

Tuesday October 24, 2023

Powell, Chesebro & Ellis LLP

“He’s had lawyers abandon their ethics for him for decades. And he puts enormous pressure on lawyers. That’s why Trump went through a lot of lawyers, in my own view. ... Trump has no ability to be grateful. Gratitude is something that does not exist in his narcissistic world. So, the fact that these people are sacrificing their lives, reputations, and careers, that will not register with him.“

-- former Trump attorney Ty Cobb, who repped Trump without getting into legal trouble on his own, to Politico, on the day that former Trump attorney Jenna Ellis joined Sidney Powell and Kenneth Chesebro in pleading guilty to charges stemming from attempts to overturn the 2020 presidential election results in Georgia. In my day job, we featured Cobb back in 2015, when the world was young. He was a D.C. lawyer with strong Kansas ties, and that name, so of course called the feature ”The Kansas Peach.“ 

From later in the Politico article: ”...all three lawyers pleading guilty in the Georgia case have agreed to surrender relevant documents to prosecutors..."

Posted at 03:30 PM on Tuesday October 24, 2023 in category Law   |   Permalink  

Thursday August 31, 2023

March 4

The GA mugshots, per CNN: RICO, no suave.

The first thing I thought when Judge Tanye Chutkan announced the court date for Trump's Jan. 6 criminal trial—the one in D.C., as opposed to the ones in NYC, Miami or Atlanta—was: Isn't that the old Inauguration Day? From like early in our history through Franklin Roosevelt's first term? It is. Or was. Lincoln was inauguarated on that day. So was Jefferson. In fact, ever since Adams, our No. 2 man, until and including FDR, that was the day. Then life quickened and a five-month lame duck session seemed overlong, so it was shifted to Jan. 20—my birthday.

Not many people have mentioned this coincidence. I guess you pay more attention to Inauguration Days when they include your birthday. That said, I hope next March 4 we inaugurate the fucker—and not into the office he hopes to hold.


  • No court date was set for the 19 defendants involved in the RICO election matter in Georgia. But then one of the 19, lawyer Kenneth Chesebro, demanded a speedy trial, and Fulton County DA Fani Willis said “How's Oct. 23?” and the judge said yes. So now Trump is moving to sever his case from Chesebro's. Per Jennifer Rubin: “Chesebro's ability to go to trial so quickly might harm Trump's protests that he will need years to prepare.”
  • And what's the deal with former Trump Chief of Staff Mark Meadows taking the stand? He wants his case to be federal rather than state, and apparently needed to argue his point. But that point—overturning the election results in Georgia was part of the job description—might well fly on Fox News but it's a little more doubtful in a court of law. Rubin again: “Most damning, Meadows's direct involvement with the phony electors could not possibly have fallen within any official duties, since selection of the electors, certification of the votes and eventual counting of the electoral votes constitutionally do not include the president. These duties are left to the states and to Congress. Not surprising, Meadows could not explain how that conduct related to any of the president's duties under Article II.”
  • Peter Sagal (yes, of NPR's “Wait, wait...”) writes for The Atlantic about the Trump cult, and cults in general, and how the inculcated are weaned from the source of their malediction. Answer? Not easily. He thinks Trumpists may just die off. He also points to the dispirited rallies as a sign that some may be quiet quitting: “They stop posting Facebook memes, put away the MAGA hat, get back into cooking or sports or whatever it was that interested them before Trump. As said, it's tough to admit you've been conned, so they don't publicly denounce their former beliefs—unless, of course, they're trying to get a lighter sentence.”
Posted at 02:02 PM on Thursday August 31, 2023 in category Law   |   Permalink  

Wednesday August 02, 2023

Indictment III: The Quest for Peace

I read Prof. Gary Bass' Op-Ed in The New York Times on Monday about Jack Smith, the special prosecutor in l'affaires Trump, and particularly liked his lede. It gets right to it:

Donald Trump openly flatters foreign autocrats such as Vladimir V. Putin and Crown Prince Mohammed bin Salman of Saudi Arabia, and in many ways Mr. Trump governed as authoritarians do around the globe: enriching himself, stoking ethnic hatreds, seeking personal control over the courts and the military, clinging to power at all costs. So it is especially fitting that he has been notified that he may soon be indicted on charges that he tried to overturn the 2020 election, by an American prosecutor who is deeply versed in investigating the world's worst tyrants and war criminals.

The piece is called “What Jack Smith Knows” and yesterday we found out some of what Jack Smith knows when he issued an indictment against Trump and six co-conspirators on the following charges:

  • conspiracy to defraud the United States
  • witness tampering and conspiracy against the rights of citizens
  • obstruction of an attempt to obstruct an official proceeding.

I.e., per the TimesTrump and Co. “employed a variety of means to reverse his defeat in the election almost from the moment that voting ended.” So what Jack Smith knows is what we all lived through two and a half years ago. Better, I guess, is what he can prove, and apparently he proved enough before a grand jury for them to recommend the charges.

NPR has a little aside in their article on the indictment that gets at the heart of it, too:

Trump, who has been summoned to appear in court on Thursday, is still the leading candidate in the Republican primary race.

We're in a court of law now, with the most serious charges you can level against someone who took the oath of office, and the press seems to have finally woken up to that fact. Slate's headline reads: “U.S. v. Trump Will Be the Most Important Case in Our Nation's History,” and Peter Baker in the Times begins his analysis thus:

What makes the indictment against Donald J. Trump on Tuesday so breathtaking is not that it is the first time a president has been charged with a crime or even the second. Mr. Trump already holds those records. But as serious as hush money and classified documents may be, this third indictment in four months gets to the heart of the matter, the issue that will define the future of American democracy.

Um ... yes? Glad to have you guys on board finally but please keep that thought in mind as you do your jobs in the months and years to follow.

But we're back to the shooting-someone-on-5th-Avenue thing. Yes, he's awful. For the millionth tiime he's awful. How do you make people see it? How do you make his support fall away? I still think the Jim Gaffigan approach is the best. Don't talk down. Talk level. “You know this... You know he's dangerous, that he lies, that he's trying to subvert democracy...” That probably didn't work either, but it's the best approach I've encountered.

It's sad to me that with all of the problems we need to focus on we have to waste time on this nothing windbag, this bloated egomaniac, this sad sack, chest-beating clown. But that's the job. Onward. 

I've got more reading to do.

Posted at 08:27 AM on Wednesday August 02, 2023 in category Law   |   Permalink  

Tuesday June 13, 2023

Happy Arraignment Day!

“So he has been told he has the right to remain silent. We'll see how that goes.”

-- George Conway, attorney, anti-Trumper and estranged husband of Kellyanne Conway, on social media, after reading that the booking process for Donald Trump has been complete and the former president was now under arrest.

Posted at 12:22 PM on Tuesday June 13, 2023 in category Law   |   Permalink  

Sunday June 11, 2023

Legal Reaction to Trump Indictment II

I missed being on Twitter this week, and confess that along with Googling the latest Mark Harris tweets, I also checked out what George Conway, Preet Bharara, Joyce Vance, Laurence Tribe, The Lincoln Project, et al., were saying about Trump indictment Part II. I lurked behind the scenes. Press reports about breaking legal matters tend to be too vague to my liking, whereas lawyers often cut to the heart of it.

I do recommend the latest episode of Bharara's podcast, “In Brief,” with Joyce Vance. Both are former U.S. attorneys who know a little something-something about prosecution, and, though they try to stay sober-minded, there's a kind of astonishment at how good the case against Trump is—how much evidence he has given the prosecution. At one point, Bharara calls the recording of Trump meeting with Mark Meadows' ghostwriters “the single most damning thing in the indictment.” Vance responds:

This is the smoking-gun piece of evidence in this case. This is Trump, in essence, committing a crime while he's in the room with these folks, on tape. He's actually showing classified material, that he is not entitled to have, to other people, who are not entitled to see it, while discussing his guilty state of mind and knowledge that it's a crime at the same time—it's really pretty remarkable. I can't remember ever seeing anything like this. 

They also seem to think that rumored appointed judge Aileen Cannon, who was not only tapped by Trump after he lost the 2020 election but made some very suspect calls in his favor earlier in this case, calls so bad that she was chastised by (I believe) the Fifth Circuit—Preet and Joyce seem to think she'll either recuse herself or be asked to recuse herself. We'll see.

Anyway, it was a good week.  

Posted at 07:44 PM on Sunday June 11, 2023 in category Law   |   Permalink  

Friday June 09, 2023


“Special Counsel Jack Smith alleges a few key points. First, that Trump handled the classified material exceptionally sloppily and haphazardly, including stashing documents in a shower, a bedroom, and—as depicted in a striking photo—onstage in a ballroom that frequently held events. Second, that Trump was personally involved in discussions about the documents, and in directing their repeated relocation. Third, that Trump was well aware of both the laws around classified documents and the fact that these particular documents were not declassified. Fourth, that Trump was personally involved in schemes to hide the documents not only from the federal government but even from his own attorneys. The indictment carefully lays out its case with pictures, texts, and surveillance footage.

”In sum, the indictment depicts a man who knew that what he was doing was wrong, and went to great lengths to cover it up.“

-- David A. Graham, ”The Stupidest Crimes Imaginable,“ The Atlantic 

I found out ... late yesterday afternoon? I wound up interrupting my wife's video pilates to ask 1) Has Jellybean been fed?, and 2) Did they hear the news? Trump indicted, they're guessing seven charges. Turns out it's 37. Or 38? I've seen both. And none of it is really surprising but it's amazing how airtight it all is, and again, as I've said before, the key phrases are ”willfully retained“ and ”failed to return,“ and the evidence of that seems overwhelming. And once again, Trump is not the problem. The problem is the people who buoy him up—the MAGA-heads who support him no matter how much he brings our country down, and the Republicans who are too fearful of the MAGA-heads to speak the truth. And of course who should wind up with the case? Apparently Judge Aileen Cannon, who issued such awful decisions earlier in this matter that even conservative justices were like, ”WTF?" So we'll see. But all in all it's still a good day for the rule of law. 

Posted at 10:48 PM on Friday June 09, 2023 in category Law   |   Permalink  

Thursday March 30, 2023


I went to BaBar this afternoon for a late lunch and Pho Hanoi—I've been under the weather and this is my “get better soon” comfort food—and when I returned home I saw, on Spoutible, one of the new social sites I'm trying out, a post about “karma.” “For who?” I wondered. “Oh, the Central Park Five. Why?”

And then I read this: ...following the indictment of Donald Trump by...

I tried to hold my emotions in check. Did that just mean “the eventual indictment of...?” So I went to the New York Times site. And no. That's not what it meant. I saw this beauty:

To be honest, that's a later version of what I saw on their website, but I had to go with it because it looked so good

Anyway, it's about fucking time. It's been a long time coming. 

Trump, true to form, railed against being INDICATED [sic].

More later. But it's a good day for America. Rule of law matters. No matter how powerful and illiterate you are.

Oh, and screw you, Steve Inskeep! For this. I will never forgive you for what you did—and didn't do—during what I hope are our worst American times.

Posted at 06:56 PM on Thursday March 30, 2023 in category Law   |   Permalink  

Sunday January 15, 2023

It's Not 'Classified Documents'; It's 'Willfully Retain' and 'Fail to Return'

“Individuals violate the Espionage Act when, among other things, they willfully retain national-defense documents and fail to return them to a proper government official upon request. In November, Biden's personal lawyer discovered the classified documents and returned them to the government without a request. So that statute does not apply. Biden has denied knowing that he had the documents.

”The contrast with Trump is stark. The National Archives and Records Administration first asked him to return missing documents in May 2021. The following January, Archives officials retrieved 15 boxes of government records, and on June 3, 2022, his lawyer signed a sworn statement that all documents responsive to a grand jury subpoena were being returned after a 'diligent' search. ... In August, a federal court was provided evidence that the lawyer's statement was likely false, and the court issued the search warrant that allowed the FBI to seize upwards of 11,000 documents from Mar-a-Lago. They included more than 70 documents marked 'Secret' or 'Top Secret,' some apparently containing information whose disclosure could conceivably endanger the lives of American intelligence sources overseas.

“The apparent obstruction of justice—with evidence pointing to Trump's direct involvement—makes up the serious misconduct here, more serious than a former president simply having removed documents from their proper place. Trump's lawyers repeatedly asserted in court that the Mar-a-Lago documents were 'personal,' effectively admitting that Trump took them and kept them.”

-- “Biden's Classified Documents Should Have No Impact on Trump's Legal Jeopardy,” by Donald Ayer, Mark S. Zaid, and Dennis Aftergut, in The Atlantic. Good reminders all around. I'm already sensing Republicans and even the press desperate to create a false equivalance between these two matters, while some Dems, hand-wringing all the while, seem desperate for expiation. They should just read this article and STFU. All three writers are lawyers. Ayer was deputy solicitor general under Reagan and deputy attorney general under George H. W. Bush; Aftergut is a former federal prosecutor; and Zaid is a national security attorney in D.C. We did a piece on Zaid in my day job a few years back.

Posted at 01:17 PM on Sunday January 15, 2023 in category Law   |   Permalink  

Friday September 16, 2022

Roe, Griswold, Loving & Obergefell

“As the liberal Justices pointed out in their dissent, the Dobbs decision endangers other Supreme Court precedents. In particular, it leaves vulnerable the cases that established 'unenumerated rights' to privacy, intimacy, and bodily autonomy—rights that the Constitution did not explicitly name but that previous Court majorities had seen as reasonable extensions of the liberties protected by the Fourteenth Amendment. Many Americans have also built their lives on precedents such as Griswold v. Connecticut, the 1965 case confirming the constitutional right of married couples to buy and use contraception; Loving v. Virginia, the 1967 case declaring bans on interracial marriage unconstitutional; Lawrence v. Texas, the 2003 case recognizing a right to same-sex intimacy; and Obergefell v. Hodges, the 2015 case recognizing a right to same-sex marriage. Would Alito grant that these decisions have created reliance interests?

The anchoring logic of Alito's opinion is that rights not stipulated in the Constitution pass muster only if they have long been part of the nation's traditions. By this standard, what is to preclude the undoing of the right to same-sex marriage guaranteed by Obergefell? Tellingly, Alito furiously dissented in that case, saying that a right to same-sex marriage was ”contrary to long-established tradition.“ Indeed, Clarence Thomas, in his Dobbs concurrence, argued that the particular cases protecting same-sex marriage and intimacy, along with contraception, were very much up for reconsideration. (Thomas left out Loving, the interracial-marriage case.)

-- Margaret Talbot, ”Justice Alito's Crusade Against a Secular America Isn't Over," The New Yorker

Posted at 02:28 PM on Friday September 16, 2022 in category Law   |   Permalink  
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