Category Archives: Law

Reich (and Fauci) are Wildly Wrong

Reich (and Fauci) are Wildly Wrong

By Donald Boudreaux   April 24, 2022   Law   3 minute read SHARE | PRINT | EMAIL

Dear Correspondent,

Because when you sent to me the following tweet by Robert Reich you provided no commentary, I can’t tell if you approve or disapprove of its contents, which are in full:

Perhaps there’s something wrong with a system that allows a 35-year-old, unelected, Trump-nominated judge — whom the American Bar Association deemed unqualified — to strike down the travel mask mandate for the entire country?

Yet sensing that you find Reich’s tweet to be a brilliantly damning indictment of U.S. District Court Judge Kathyrn Kimball Mizelle’s ruling against the CDC’s mask mandate, I feel obliged to explain why I think Reich’s tweet is, to put it mildly, moronic.

First, there is no legally specified minimum age for serving on the federal bench. Joseph Story – no slouch as a jurist – was appointed to the U.S. Supreme Court at the age of 32.

Second, like him or not, Donald Trump was president from 2017 to 2021, and among any president’s duties is to nominate federal-court judges.

Third, Judge Mizelle wasn’t put on the court by Trump unilaterally; she was approved by the Senate.

Fourth, all federal-court judges are unelected.

Fifth, also unelected are all public-health officials, including Anthony Fauci and Rochelle Walensky.

Sixth, while the ABA did indeed deem Judge Mizelle to be unqualified, it did so because she spent little time in the private practice of law. If this criterion suffices to render someone unfit for high government office, Anthony Fauci is even less qualified for his position than is Judge Mizelle for hers, given that Fauci spent no time in the private practice of medicine. Upon completion of his residency in 1968, he took a job with the National Institutes of Health. He has ever since been employed by the government.

Seventh, because the CDC is a federal-government agency, its diktats generally cover the entire country – a fact that should be doubly obvious in the case of diktats affecting interstate commercial air travel. Judge Mizelle could hardly have ruled against the mask mandate for only a subsection of the country.

Eighth, Reich skates alarmingly close to implicitly endorsing a totalitarian proposition that Fauci recently endorsed explicitly – namely, that government-employed public-health bureaucrats are above the law. About Judge Mizelle’s ruling, Fauci declared: “We are concerned about that – about courts getting involved in things that are unequivocally public health decisions. I mean, this is a CDC issue; it should not be a court issue.”

To propose that any government action be immune to judicial oversight – that is, immune to oversight by the formal guardians of the law – is to propose that the officials who perform that action are above the law. As Reason’sEric Boehm wrote in reaction to this authoritarian outburst by Fauci, “This is either a complete misunderstanding of the American system’s basic functions or an expression of disdain toward the rule of law.”

Sincerely,
Donald J. Boudreaux
Professor of Economics

Author

  • Donald Boudreaux Donald J. Boudreaux is a senior fellow with Brownstone Institute and with the F.A. Hayek Program for Advanced Study in Philosophy, Politics, and Economics at the Mercatus Center at George Mason University; a Mercatus Center Board Member; and a professor of economics and former economics-department chair at George Mason University.
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Using War to Assault Freedom

Using War to Assault Freedom

LewRockWell.com By Andrew P. Napolitano

April 21, 2022

Most judges and lawyers agree that the war on drugs in the past 50 years has seriously diminished the right to privacy guaranteed by the Fourth Amendment.

Now a small group of legal academics is arguing that the war in Ukraine should be used to diminish property rights guaranteed by the Fifth Amendment.

Here is the backstory.

The Fourth Amendment was written to guarantee that the government may only search and seize persons, houses, papers and effects pursuant to a search warrant issued by a judge after the presentation under oath of evidence demonstrating that the place to be searched more likely than not contains evidence of crime. And the warrant itself must specifically describe the place to be searched and the person or thing to be seized.

These requirements — the work of James Madison, who was the scrivener of the Constitution in 1787 and the author of the Bill of Rights in 1791 — were intended to have two effects.

The first effect was to uphold the quintessentially American right to be left alone. The second was to compel the government to focus its law enforcement personnel and assets on crimes for which there is probable cause, not fishing expeditions or hunches.

Madison’s language prohibited absolutely the use of general warrants, a favorite tool of the British government against the colonists. General warrants were based on whatever the government wanted or claimed it needed.

The colonists were tormented by, and driven to revolution over, general warrants, as they authorized British agents to search wherever they wished and seize whatever they found. Surely, the dreadful colonial experience with general warrants was a driving force behind the wording and ratification of the Fourth Amendment.

Sadly, during the war on drugs, prosecutors and police persuaded judges to craft “emergency” exceptions to the Fourth Amendment. These included allowing police to look for whatever they wanted in cars and homes, and using the CIA for warrantless surveillance, lest the drugs supposedly being sought be destroyed before capture.

The effect of this was to destroy a fundamental liberty in deference to easing police work; that’s the definition of a police state. The courts effectively ruled that somehow the Constitution prefers liberty — rather than evidence of crimes — to be destroyed.

The Fifth Amendment protects the life, liberty and property of all persons from destruction or aggression by the government without due process of law. Due process requires a jury trial at which the government must prove fault.

Thus, property cannot be seized temporarily or taken permanently without either a search warrant or a jury trial.

Now back to the war in Ukraine.

I have argued in this column and elsewhere that the Biden administration sanctions imposed on Russian and American persons and businesses are profoundly unconstitutional because they are imposed by executive fiat rather than by legislation and because the sanctions constitute either the seizure of property without a warrant or the taking of property without due process.

When the feds seize a yacht from a person whom they claim may have financed Russian President Vladimir Putin’s rise to power, they are doing so in direct violation of the Due Process Clause of the Fifth Amendment.

Similarly, when they freeze Russian assets in American banks, they engage in a seizure, and seizures can only constitutionally be done with a search warrant based on probable cause of crime.

As well, when the feds interfere with contract rights by prohibiting compliance with lawful contracts, that, too, implicates due process and can only be done constitutionally after a jury verdict in the government’s favor, at a trial at which the feds have proved fault.

As if to anticipate these constitutional roadblocks to its interference with free commercial choices, Congress enacted the International Emergency Economic Powers Act of 1977 and the Magnitsky Act of 2016. These constitutional monstrosities purport to give the president the power to declare persons and entities to be violators of human rights and, by that mere executive declaration alone, to punish them without trial.

These laws turn the Fourth and Fifth Amendments on their heads by punishing first and engaging in a perverse variant of due process later. How perverse? These laws require that if you want your seized property back, you must prove that you are not a human rights violator.

As if to run even further away from constitutional norms, a group of legal academics began arguing last week that the property seized from Russians is not really owned by human beings, but by the Russian government. And, this crazy argument goes, since the Russian government is not a person, there is no warrant or due process requirement; therefore, the feds can convert the assets they have seized and frozen to their own use.

To these academics — who reject property ownership as a moral right and exalt government aggression as a moral good — the argument devolves around the meaning of the word “person.” The Fourth and Fifth Amendments protect every “person” and all “people,” not just Americans.

And in American jurisprudence, “person” means both human beings and artificial persons — corporations and governments capable of owning property. Property ownership is defined by the right to use, alienate and exclude. Only persons can exercise those rights.

Madison and his colleagues clearly sought to protect property rights from government aggression, no matter the legal status of the owner. We know this from the judicial opinions involving foreign property that preceded and followed the ratification of the Fifth Amendment. If this were not so, then nothing could prevent the feds from seizing and converting the property of states or local governments or international religious institutions to federal use.

War is the health of the state and the graveyard of liberty. The drug war was a disaster for freedom. The war in Ukraine will be so as well, only if we permit it.

Reprinted with the author’s permission.

The Best of Andrew P. Napolitano Andrew P. Napolitano [send him mail], a former judge of the Superior Court of New Jersey, is the senior judicial analyst at Fox News Channel. Judge Napolitano has written nine books on the U.S. Constitution. The most recent is Suicide Pact: The Radical Expansion of Presidential Powers and the Lethal Threat to American Liberty. To find out more about Judge Napolitano and to read features by other Creators Syndicate writers and cartoonists, visit creators.com.

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20 Federal ‘Assets’ Embedded at Capitol on Jan. 6, Court Filing Says

By Joseph M Hanneman, The Epoch Times

At least 20 FBI and Bureau of Alcohol, Tobacco, Firearms, and Explosives “assets” were embedded around the U.S. Capitol on Jan. 6, 2021, a defense attorney wrote in a court filing on April 12.

The disclosure was made in a motion seeking to dismiss seditious conspiracy and obstruction charges against 10 Oath Keepers defendants in one of the most prominent Jan. 6 criminal cases.

David W. Fischer, attorney for Thomas E. Caldwell of Berryville, Virginia, filed a 41-page motion to dismiss four counts on behalf of all Oath Keepers case defendants before U.S. District Judge Amit P. Mehta in Washington, D.C.

Caldwell is charged in the indictment, but is not a member of the Oath Keepers, he told The Epoch Times in March.

Photo showing Capitol Police being escorted down the Capitol steps through the crowd to safety on January 6 by members of the Oath Keepers.
Capitol Police are escorted down the Capitol steps through the crowd to safety on Jan. 6 by members of the Oath Keepers. (Courtesy of Roberto Minuta)

“At least 20 FBI and ATF assets were embedded around the Capitol on J6,” read a footnote on Page 6 of the motion. No other details were provided in the document.

The footnote said defense attorneys “combed through a mountain of discovery,” including FBI form 302 summaries of interviews conducted by FBI agents.

In addition to the information about law-enforcement assets on the ground at the Capitol, the footnote says, the Oath Keepers “were being monitored and recorded prior to J6.”

Poring over evidence turned over in discovery by prosecutors in two major Oath Keepers cases has “not found one iota of proof” that defendants “had any plan, intention, design, or scheme to specifically enter the Capitol Building on J6,” the motion said.

Fischer told The Epoch Times he could not comment on the motion or provide more details on the footnote.

Since the first arrests of Jan. 6 defendants in early 2021, there has been extensive speculation and questions from attorneys, defendants, case observers, and members of Congress about the role law enforcement played that day.

During a Senate Judiciary Committee Hearing on Jan. 11, U.S. Sen. Ted Cruz (R-Texas) grilled top FBI officials on the subject.

“How many FBI agents or confidential informants actively participated in the events of Jan. 6?” Cruz asked Jill Sanborn, executive assistant director of the FBI’s national security branch.

“Sir, I’m sure you can appreciate that I can’t go into the specifics of sources and methods,” Sanborn said.

Cruz replied, “Did any FBI agents or confidential informants actively participate in the events of Jan. 6, yes or no?”

“Sir, I can’t answer that,” Sanborn said.

“Did any FBI agents or confidential informants commit crimes of violence on Jan. 6?” Cruz asked.

“I can’t answer that, sir,” Sanborn replied.

Jeremy M. Brown, an Oath Keepers member from Florida who was charged with two Jan. 6-related counts but is not part of either major Oath Keepers conspiracy case, told The Epoch Times earlier this year that the FBI unsuccessfully tried to recruit him in 2020 to spy on the group.

Brown said the same agents who later arrested him for alleged Jan. 6 crimes tried to recruit him on Dec. 11, 2020, to become a confidential informant. He refused. He was arrested on Sept. 30, 2021, when dozens of federal agents swarmed his Florida property.

“When asked by me and my girlfriend to produce the warrants at the time of arrest, they refused to produce them,” Brown said. “One agent was even recorded stating, ‘We don’t know what we are looking for yet.’ They should look for a copy of the Constitution and read it.”

No Crime Stated?

The Oath Keepers, including founder Elmer Stewart Rhodes III, are charged with conspiring to enter the Capitol on Jan. 6 to prevent the certification of the Electoral College votes from the 2020 presidential election. Protests and rioting on Jan. 6 interrupted a joint session of Congress for about six hours.

“The Rhodes defendants seek dismissal of Counts 1-4 on the grounds that the indictment fails to state an offense as to each count,” Fischer wrote in his motion.

The four counts covered in the motion to dismiss all refer to obstructing a proceeding or preventing an officer from discharging duties.

Under Title 18 of the U.S. Code, the seditious conspiracy charge “requires proof that the purpose of the defendants’ seditious conspiracy was to forcibly obstruct a person authorized to execute a law, while that person was attempting to execute the particular law opposed by the defendants,” Fischer wrote.

“Per binding precedent, however, Members of Congress are constitutionally prohibited from ‘executing any law of the United States,’ ” the motion said. “Additionally, per binding precedent, the Electoral College certification process did not constitute the ‘execution of any law of the United States.’ ”

oath keepers
Members of the Oath Keepers are seen during a protest against the certification of the 2020 U.S. presidential election results by the U.S. Congress, at the U.S. Capitol in Washington on Jan. 6, 2021. (Jim Bourg/Reuters)

Counts 2 and 3 of the indictment are brought under 18 U.S.C. § 1512(c), but that law only applies to obstructive acts related to the destruction of evidence, the motion said.

This argument was cited in March by U.S. District Judge Carl J. Nichols, who dismissed the same obstruction charge in two other Jan. 6 cases.

Count 4 accuses the defendants of conspiring to prevent an officer from discharging any duties.

Under binding legal precedent, the motion argues, the terms “office,” “officer” and “officer of the United States” take their meaning from the Appointments Clause of the U.S. Constitution.

Members of Congress are not “officers” under the Appointments Clause, Fischer wrote.

The motion described the indictment as “an obscenely one-sided, selectively edited, and inaccurate representation of [Oath Keepers’] actions and statements.”

The Oath Keepers “Quick Reaction Forces” (QRFs) described in the criminal complaint as being ready to assist in the attack on the Capitol with men and armaments were actually standing by in Virginia in case Oath Keepers in DC were attacked or threatened by Antifa, the motion said.

“… Every scrap of evidence reviewed confirms that the ‘QRFs,’ which were utilized on numerous prior dates, were intended as rescue forces in the event that the Oath Keepers were attacked by Antifa or a similar contingency, and not to attack the Capitol Building,” the filing said.

In a companion motion filed on behalf of defendant Kelly Meggs, attorney Jonathon Moseley described the notion of opposing the lawful transfer of presidential power as a “thought crime,” and the charge in the indictment as “devoid of supporting factual allegations.”

“The Constitution makes clear that it is a Constitutional impossibility to ‘oppose the transfer of presidential power.’ Not only could such a goal not be accomplished, but beyond that, it is an irrational concept lacking in any basis, in fact, law, or common sense,” Moseley wrote.

“This is not a case in which conspirators might attempt to do something they are unable to successfully achieve,” Moseley’s filing said. “It is an irrational concept like dividing by zero. There can be no such thing in law or fact.”

The Epoch Times contacted the U.S. Attorney’s Office for the District of Columbia for comment but did not receive a reply by press time.

https://www.theepochtimes.com/case-filing-says-at-least-20-federal-assets-embedded-at-the-us-capitol-on-jan-6_4400120.html?utm_source=News&utm_campaign=breaking-2022-04-13-3&utm_medium=email&est=bdrRJ+aXJYfGGe61w8LbjDYGk1OXk8/WzNGbABfMX64YtOlzodpxcqr2iOrc+A==

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project 65: a massive threat to the united states

4/6/2022 Defending the Republic

Today we will be outlining for you a massive, evil threat to our country, our freedoms and to The Rule of Law.

Everyday we are seeing more and more evidence that there was election fraud of all kinds all over the country in 2020.

We have been sharing this information with you for over a year – from the influence of millions spent by Mark Zuckerberg, to ballots delivered in semi-trucks, to lies about voting machines being connected to the internet, to drop boxes and mail-in ballots. The list of illegal acts perpetuated by the leftists of the world to obstruct the election is a long one. More information emerges daily supporting the reality of the fraud, how long it as plagued us and how widespread it is.

You would think the left would try to slink away quietly, embarrassed by being caught. But, they are so emboldened by the fact they stole the power, they are doubling down on destroying anyone who dared challenge their authority and spoke about illegal activities surrounding the election of 2020.

As you know, Sidney Powell (and our legal staff at Defending The Republic) have been working tirelessly to help people caught in the snares of our corrupt government and its many corrupt institutions. They have done this despite the heavy load of $4 billion dollar law suits filed against Sidney and five suits in four jurisdictions, multiple baseless bar grievances filed against multiple members of our team, countless false media hit pieces, and politically-driven sanctions motions.

These actions are pure harassment suits brought for the primary if not sole purpose of intimidating or bludgeoning us into silence.

Added to the lawsuits and other threats, there is now a fully-staffed and well-funded evil organization working to destroy any attorney who stands against the cabal that planned and orchestrated the coup of the presidency of the United States.

The group doing this is called The 65 Project

NOTE: You may also see it as Project 65.

This newsletter is to inform you of this group and to ask for your help to fight it.  As you can imagine, Sidney Powell is high on their list for destruction.  She and Defending The Republic are squarely over the target with our messages and our legal battles. We are fighting every day for you on multiple fronts, and they know we know what they did.

They not only want to shut us down, they want to destroy Sidney Powell. This is unadulterated political intimidation and lawfare at its worst.

Inform yourself on these people, their tactics, and their organizations.  We must fight this battle together.  (1) Discuss this information everywhere you go and (2) pass this information on to your friends.

Now, it is imperative that you join us with your financial support. Make a monthly contribution to help us help you.  We have more battles to fight now than when we began our efforts, and they have only become more intense as the left has consolidated unprecedented powers as they have taken away more freedoms than we ever thought possible in this country.

Join us in continuing our work on behalf of many January 6 defendants, US military members who do not want to be forced to risk their health by taking an unlicensed, experimental “clotshot”, and our ongoing defense against Dominion, Eric Coomer, various bar Associations, the city of Detroit, state officials in Michigan, and now Project 65.

Here, in full, are three articles that will help you understand the tactics of the left and what is at stake. Every American should be outraged by this effort to chill all debate or legal accountability, not to mention the well-funded deliberate destruction of reputations and livelihoods.

“I and Defending The Republic stand in the gap for you every day.  For us to succeed, each of you must join us in every way you can. Send this to all your friends. Encourage everyone to join us by donation $10/month to fund our fight.  Discuss the issues and information we share we you everywhere you go.  You can do something about all the wrongs you see by helping us fight them.  Together, we cannot be stopped.  We are determined to find the truth and set it free.” – Sidney Powell, April 6, 2022

“Project 65” Seeks to Kill All the Trump Lawyers — By Canceling Them: The Progressive Left’s Latest Move to Destroy America

by Jeffrey Clark, Former Assistant Attorney General at the U.S. Justice Department

As Shakespeare famously wrote in Henry VI Part II: “The first thing we do, let’s kill all the lawyers.”

Even for me as a lawyer, it’s hard not to sympathize with that sentiment. Lawyers are a drag. But in reflective moments, I’m more partial to Sir Thomas More’s line from Robert Bolt’s A Man for All Seasons: “And when the last law was down, and the Devil turned ’round on you, where would you hide, Roper, the laws all being flat? This country is planted thick with laws, from coast to coast, Man’s laws, not God’s!”

The evenhanded application of the law is a principle that must be defended. Everywhere, balance and perspective are under attack. Whatever the costs of America’s process-heavy adversarial contests, that feature of our polity is a key bulwark of liberty. Due process is not something to be trifled with, deconstructed, or thrown away based on the passions of the political moment.

Yet that is happening, right now. The Left has set the lines of battle: Any lawyers who worked for President Trump with verve and ingenuity, along with any lawyers he retained to mount his various 2020 election contests, must be crushed, must have their noses rubbed into the dirt, must if possible lose their jobs and even their right to practice law.

It’s not right, just as it would not have been right to demonize the lawyers who mounted Al Gore’s challenges to the 2000 presidential election in Florida.

On the Left, the constant rallying cry is “Remember January 6!” It’s like a woke version of “Remember the Alamo!”, designed to divide and conquer instead of unite the nation in the spirit of apple-pie American patriotism. For those who know me, I’m a lot more partial to traditional patriotism than to false and cynical attempts by MSNBC and its ilk to use the aberration of January 6 as some kind of Rosetta Stone to American politics.

As James O’Keefe has recently brought to light, even Matthew Rosenberg of the New York Times secretly knows I’m right.

Project 65 and Its Despicable Aims

When the Left wants something, you can be sure that limitless streams of money will soon pour forth to fund their destructive crusade. Recently, Axios profiled something significant you might have missed: “Project 65,” a new initiative funded by millions in “dark money” to destroy as many Trump-affiliated lawyers as possible.

At the retail level, Project 65’s purpose is to file bar complaints against 111 lawyers wherever they are licensed.

At the wholesale level, it seeks to amend state bar rules, so that no lawyers with a sense of self-preservation will ever again want to bring election-related contests on behalf of President Trump, or any other populist conservative candidate.

According to Project 65, everyone secretly knows that elections in Atlanta, Chicago, or Philadelphia (my home town) are entirely aboveboard, so any legal challenges to them must be in bad faith. My Mom’s stories from decades of poll watching in Philadelphia must have been hallucinated, and a slew of election fraud cases in Philadelphia must have magically disappeared from the annals of the law.

The Chicago corruption of Mayor Daley in the 1960 presidential election is an old wives’ tale. Election fraud in America simply doesn’t exist. Of course, some exceptions exist—for Democrat complaints of voter fraud, of course.

Don’t expect Project 65 to file a bar complaint any time soon against losing candidate Stacey Abrams over her frequent claims to be the legitimate governor of Georgia.

Project 65 is led by David Brock, the founder of Media Matters for America and the super PAC American Bridge 21st Century. Brock is still on his life-long quest to expiate his decades-old “sin” of writing The Real Anita Hill, a book attacking the credibility of Clarence Thomas’s harassment accuser. Brock will be joined by an advisory board that includes former Senate majority leader Tom Daschle, Clinton affiliate Melissa Moss, and “Republican” Paul Rosenzweig.

(Here I pause to ask, Paul, what’s happened to you? We both served in the Bush 43 Administration, me at Justice and you at Homeland Security. President Trump actually achieved many of the goals President Bush advocated, yet rarely did much to accomplish. Talking a good game is not the same thing as running a good game. Best to judge by fruits and not by braggadocious tweets, I think.

Never Trumpism seems to be a fever that makes calmly comparing records impossible.)

Here’s what Brock describes as the mission of his project:

“[Project 65] will not only bring the grievances in the bar complaints but shame them and make them toxic in their communities.”

According to Axios, Brock’s plan is nothing less than a war of the strong against the weak: 

“I think the littler fish are probably more vulnerable to what we’re doing… You’re threatening their livelihoods. And you know, they’ve got reputations in their local communities.”

Give Brock points for honesty, at least. Not everyone has the guts to gloat about being pure evil. Project 65 is torn right from the playbook of Saul Alinsky (“Pick the target, freeze it, personalize it, and polarize it”): Shame lawyers, plague them with hefty legal bills, and especially pick off ones who are less famous and backed by fewer resources.

Given all that, it’s better to call Project 65 Project Shame, Project Fear, or the Project of Personal Destruction.

And wait, why is it even called Project 65? Because (groan) that’s the number of lawsuits filed to support the “Big Lie,” of course.

Monopolies are never good, whether one is talking about cornering the market for silver, for banking services, for rare earth minerals (hello CCP), or for social media. Lawyers are indispensable to promoting any abstract cause or to any concrete enterprise that must enter the court system to present grievances.

Trying to shame, outlaw, and destroy the personal reputations of any category of lawyers, on the Right or on the Left, must be resisted with maximum effort. And make no mistake, as Axios recognizes after talking to Brock himself (and others at Project 65 clinging to anonymity), the goal of the effort is to chill market forces:

“The 65 Project is focused on starving any future efforts of legal talent as well as focusing on 2020.”

Professor Alan Dershowitz sees the game afoot. He told Breitbart that he will “defend any lawyer targeted by [the] McCarthyist ’65 Project.'” Good for him. He immediately recognizes that Project 65 flunks any test of Kantian evenhandedness and ethics:

It was only 22 years ago when lawyers like me sought to block the election of President George W. Bush, believing as we did that Al Gore actually received more votes than Bush in Florida and was the rightful winner. We lost in court. But back then no one suggested going after the hundreds of lawyers who tried to prevent Bush’s certification. A dangerous weapon, like the 65 Project, unleashed by Democrats will surely be used by Republicans at some future time. [Breitbart]

Bingo. It’s the Golden Rule. If progressives can try to starve Republicans of legal talent, turnabout will become fair play. And it should not be allowed to become fair play—by either side.

Weaponizing bar rules to endlessly relitigate contests about the 2020 presidential election (or any election) is not what the rules of legal ethics and professional conduct exist to accomplish. It is blatant lawfare, designed to impose ruinous costs on lawyers of an enemy political faction. It’s a Pandora’s box that should remain closed.

The Three Categories of Lawyers Project 65 Seeks to “Freeze” in Alinsky Terms

Project 65 plans to target three categories of lawyers: (1) Trump’s inner circle of lawyers, e.g., Jenna Ellis and Boris Epsteyn, (2) lawyers who signed on to be alternate presidential electors; and (3) attorneys who participated in the attack on the Capitol or were simply present at the events of January 6.

Let’s take each of these categories in turn.

For category 1, the Project reasons that being close to Trump is its own unpardonable sin, a form of guilt by association. That’s as un-American as it gets.

Next, as to alternate electors: In the 1960 presidential election between Nixon and Kennedy, there were alternate Democratic Hawaii electors for Senator Kennedy who eventually became the actual electors, so lining up alternative electors to be ready for such an opportunity can’t be inherently illegal or unethical.

And finally, while a lawyer who participated in violence at the Capitol on January 6 is clearly a proper subject of a bar investigation and stern discipline, the idea that a lawyer’s mere presence at the January 6 protest is unethical is the stuff of a banana republic. Is every left-leaning lawyer who protested George Floyd’s death to be rounded up and disbarred because Antifa members assaulted a courthouse in Portland or burned down a police station in Minneapolis?

Is at Least One Other Entity Cooperating With Project 65?

The public announcement of Project 65’s kickoff was followed just a few weeks ago by a public announcement that the Texas Bar was considering allegations of unethical conduct filed against the Lone Star State’s Attorney General, Ken Paxton.

According to the Washington Examiner, AG Paxton is under fire for suing to overturn the 2020 presidential election, a suit that 17 other state AGs eventually joined him in. Just pause and let that sink in. The notion that 18 state attorneys general were all plotting together in a back room to file unethical, disbarment-worthy litigation shouldn’t be a theory that could even get off the ground of its own weight.

This is a naked, cynical attempt to weaponize the bar rules in the service of politics. The very legitimacy of the legal bar depends on not allowing such a weaponization.

Instead of reflecting unbiased application of ethics rules, the attack on Paxton’s bar license really boils down to the claim it is beyond the pale to contradict the regime’s “Big Lie” refrain. This refrain holds that the 2020 election was perfect, no matter what evidence has emerged or will emerge in the future.

There is no attorney ethics rule that mandates agreement with Democrat media narratives, however often they are repeated. It is that fact Brock and his ilk seek to change.

Democrats don’t like that Paxton courageously questioned whether the 2020 presidential election was aboveboard. But Paxton and his 17 fellow state AGs elected by the people were fully entitled to argue that the 2020 election was not conducted in accord with the Constitution. 

Specifically, the Presidential Electors Clause (Article II, Section 1, Clause 2) requires such electors to be appointed in the manner determined by state legislatures. Not by state governors, not by state courts, and not by state administrative agencies making last-minute changes in voting law under the cover of COVID-19 paranoia.

The Supreme Court refused to take up Paxton’s case by a 7-2 vote, but the case was surely colorable and raised fair-minded arguments. Moreover, the Supreme Court majority did not enshrine the “Big Lie” narrative in law. They simply held that Texas lacked constitutional standing. Nothing more.

The complaint against AG Paxton was filed not by Project 65 but by a different group called Lawyers Defending American Democracy (LDAD). LDAD’s Chairman is a past litigation opponent of mine, former Democrat AG of Massachusetts (and noisy proponent of socialist climate change regulations) Scott Harshbarger.

Other LDAD members include Lucien Wulsin, Founder and Director of Insure the Uninsured Project, and Martha Barnett, former chair of the ABA’s House of Delegates (for more on the ABA’s own ideological drift, see Revolver’s writeup here). They are leftists at the vanguard of leftist causes.

Are LDAD and Project 65 working together? I certainly can’t prove it. But I will go out on a limb and predict that at some point in the future, it will likely come out that they are closely aligned and coordinated.

The Texas Bar should make short work of the complaint against AG Paxton, but that situation will have to be monitored carefully. As Paxton himself noted, the lawsuit seems strategically (and politically) timed: “They’ve intentionally waited a year and a half after my Supreme Court challenge—right in the middle of an election—to do it… Worse, they announced their plans on the very first day of my election against George P. Bush—Biden’s and the Democrats’ preferred candidate for Attorney General.” How convenient.

Legal Defenses to the Project 65 Offensive

Fortunately, legal defenses to Project 65 are easy to come up with.

First, Project 65’s goals run afoul of the First Amendment’s Petition Clause, which guarantees citizens the right to petition their government for a redress of grievances. Such petitions often come in the form of lawsuits. Frivolous lawsuits can be penalized, but the standards for this are supposed to be clear-cut and limited.

Judges can discipline lawyers for making factual claims that it can be proven they knew were false at the time. Lawyers who make legal arguments that flatly contradict binding legal precedent can be taken to the woodshed as well (though lawyers can always argue that case law ought to be changed as well).

On the other hand, filing lawsuits supported by the sworn testimony of poll workers who saw various forms of shenanigans is categorically the exact sort of activity protected by the right to petition. So is arguing that last-minute bureaucratic changes to election laws violated Article II of the Constitution. And so is complaining about the election rigging enabled by Mark Zuckerberg’s Zuckerbucks.

Marc Elias may not like to have to run to and fro defending against such suits, but there is nothing illegitimate about them simply because lawyers for President Trump filed the cases.

Second, forming an organized legal group to hound lawyers who happened to serve as advocates for Republican causes suggests a conspiracy to violate the civil rights of those lawyers’ clients, as well as the civil rights of those lawyers themselves.

Civil rights laws are not the exclusive playthings of the Democratic Party. Free expression, free political association, access to the legal counsel of one’s choice—these are all foundational rights that a group of dark money-funded lawyers associated with David Brock should not be able to rip away or chase away through fear and the politics of cancelation.

Third, fire can be fought with fire. And to mix the metaphor, sometimes the best defense is a good offense. Every lawyer who is faced with the naked lawfare of Project 65 should file a counter-complaint to the bar where a Project 65 complainant is a member. All lawyers should have much better things to do than to try to deck their opponents, aiming to knock them out in a bar-grievance process resembling Fight Club.

In antitrust law, there is a form of anticompetitive conduct known as “raising rivals’ costs.” Raising the costs of legal rivals is not a proper endeavor in the American legal tradition anymore than it is fair play in business as to economic competitors.

Brock is openly bragging that his plan is to starve conservatives of legal talent. His words are a self-indictment of monument proportions. His tactic should be shunned and the lawyers using it are the ones who deserve discipline.


Countering Project 65

So, what should be done to block or blunt the Project 65 dagger aimed at the heart of American lawyering? I propose a plan with three parts:

First, we need to fund, on a dollar-per-dollar basis, a Project 65 counterproject. If left unchecked, then at the least Project 65 will burden and frighten any lawyer willing to take on Republican clients. At its worst, Project 65 will go on to create lasting structural and systemic change in the American legal system.

Canceling Trump-adjacent lawyers is just Brock’s starting point.

The end goal is to create a reality where left-wing ideology and the legal system are one and the same.

If America’s businessmen and right-leaning donors aren’t willing to step up now and fund a counter-Project of their own, then they should not be surprised if the day comes where they can’t get a lawyer either.

Whenever Project 65 shows up with a proposal to change the bar rules to tilt the playing field against one sort of party, the Project 65 counterproject must appear as well to file rulemaking comments aimed at keeping the bar rules neutral and apolitical.

Personal knowledge should be required for bar authorities to open an investigation into any Project 65 complaint. Typically, bar complaints are filed, for instance, by wronged clients alleging a lawyer absconded with money out of a trust account or that a lawyer has not worked diligently enough on their case.

By contrast, Joe Officious Intermeddler shouldn’t be able to read a Washington Post article or search state and federal election lawsuit databases and gin up carbon-copy complaints about the conduct of Trump-hired lawyers they have had no personal contact with.

Any lawyer who participates in drafting a Project 65 bar complaint should be required, under penalty of perjury, to disclose his identity to the bar authorities where he or she files such a complaint. And the drafters of “model” bar complaints that Project 65 takes off the shelf to adapt to launch against any single lawyer should similarly not be allowed to hide in the shadows.

Bar disciplinary authorities should reaffirm their traditional role of being reactive. They exist to investigate complaints filed by clients, and to decide whether lawyers already convicted of crimes or sanctioned by judges should also face further discipline. As John Adams once said: “Go[ ] not abroad, in search of monsters to destroy.” State and local bars should not expend their attention and resources on a Project 65 witch hunt to make life hell for conservative lawyers who stood up against the current ruling regime.


Conclusion

The Prussian military theorist Von Clausewitz is famous for his dictum that “war is the continuation of policy by other means.” Project 65 seeks to invert that: To turn politics into just another mode of all-out warfare. Attacking the dignity of the bar will be the death knell of our Anglo-American legal system and for fair, competitive politics more generally.

Project 65’s lawsuits are an assault on the principle of equal protection under the law and on the Constitution’s Petition Clause. This is a fight that patriotic Americans must win, or the United States will just be the latest example of a republic decayed into a phony, failed oligarchy.

Mr. Clark is the former Senate-confirmed Assistant Attorney General of the Environment & Natural Resources Division of the U.S. Justice Department (2018-2021). From 2020-2021, he was also named and simultaneously served as the former Acting Assistant Attorney General of DOJ’s Civil Division (2020-2021). Mr. Clark, unfortunately, is still mired in a subpoena fight with the House’s January 6 Select Committee. 
 

2- AXIOS 

High-powered group targets Trump lawyers’ livelihoods

A dark money group with ties to Democratic Party heavyweights will spend millions this year to expose and try to disbar more than 100 lawyers who worked on Donald Trump’s post-election lawsuits, people involved with the effort tell Axios.

Why it matters: The 65 Project plans to begin filing complaints this week and will air ads in battleground states. It hopes to deter right-wing legal talent from signing on to any future GOP efforts to overturn elections — including the midterms or 2024.

    • The group takes its name from a count of lawsuits that sought to invalidate the 2020 results.

Details: David Brock, who founded Media Matters for America and the super PAC American Bridge 21st Century and is a Hillary Clinton ally and prolific fundraiser for Democrats, is advising the group.

    • Advisory board members include former Senate Majority Leader Tom Daschle (D-S.D.); and Paul Rosenzweig, a conservative and member of the Federalist Society who was former senior counsel for Ken Starr’s Clinton-era Whitewater investigation and served in George W. Bush’s Department of Homeland Security.

    • Former Utah Supreme Court Chief Justice Christine Durham; and Roberta Ramo, the first woman to serve as president of the American Bar Association, are also members.

    • The project was devised by Melissa Moss, a Democratic consultant and former senior Clinton administration official.

The other side: Some of the lawyers targeted describe the tactics as naked political intimidation.
 

    • “This move is nothing more than a desperate attempt by leftist hacks and mercenaries…” Paul Davis, a Texas attorney targeted for his presence at the Capitol on January 6, wrote in an email to Axios.

    • He described an effort “…to neutralize anyone on the right with the ability to stand in the way of the left’s efforts to hide malfeasance in the 2020 elections and to clear the path for a repeat of similar malfeasance in the 2022 mid-terms.”

How it works: The 65 Project is targeting 111 attorneys in 26 states who were involved to some degree in efforts to challenge or reverse 2020 election results. They include lawyers at large national law firms with many partners and clients and lawyers at smaller, regional firms.

    • It will air ads in battleground states, including Arizona, Georgia, Michigan, Nevada, Pennsylvania and Wisconsin.

    • It also will push the ABA and every state bar association to codify rules barring certain election challenges and adopt model language stating that “fraudulent and malicious lawsuits to overturn legitimate election results violate the ethical duties lawyers must abide by.”

    • It plans to spend about $2.5 million in its first year and will operate through an existing nonprofit called Law Works.

Brock told Axios in an interview that the idea is to “not only bring the grievances in the bar complaints, but shame them and make them toxic in their communities and in their firms.”

    • “I think the littler fish are probably more vulnerable to what we’re doing,” Brock said. “You’re threatening their livelihood. And, you know, they’ve got reputations in their local communities.”

What they’re saying: “With great power comes great responsibility. Lawyers have a special role in and special obligation to society,” Rosenzweig told Axios in an email.

    • “It is all the worse, then, when they use their special position to attack the foundations of the rule of law.”

The group has three categories of targets, according to plans reviewed by Axios.
 

    • Trump’s legal inner circle, including lawyers such as campaign hands Jenna Ellis and Boris Epshteyn and post-election lawyers like Sidney Powell and Joe DiGenova.

    • Lawyers who signed on as “alternate electors,” who planned to submit their names to the Electoral College in lieu of legitimate elector slates if Trump-aligned legal challenges succeeded.

    • Licensed attorneys who participated in or were present at the Jan. 6, 2021, attack on the U.S. Capitol.

Between the lines: Some of the attorney targets already have been hit with bar complaints. One going after Georgia attorney Brad Carver for his role as an alternate elector was dismissed for lack of evidence. Carver, in an email to Axios, reiterated his position that his involvement was legally appropriate.

    • But The 65 Project is focused on starving any future efforts of legal talent as well as focusing on 2020.

    • “This is mostly important for the deterrent effect that it can bring so that you can kill the pool of available legal talent going forward,” according to a person involved with the effort, who asked to remain anonymous.

Cleta Mitchell, who resigned from Foley & Lardner as she assisted the Trump campaign’s post-election legal efforts, characterized The 65 Project’s effort as hypocritical.
 

    • “I’m betting Marc Elias isn’t on the list,” she said in a text message, linking to a story about the Democratic attorney’s challenge to the results of a House race in Iowa last year and one about his claims of voting machine “irregularities” in another in New York.

    • “Ok for Dem lawyers to file election challenges. Of course.”

John Eastman, who crafted a legal memo detailing Trump’s options for overturning the election, already is facing a bar complaint in California.

    • He “expects the Bar’s investigation into these matters will fully exonerate him from any charges,” his attorney said in an emailed statement.

    • “As was his duty as an attorney, Dr. Eastman zealously represented his client, comprehensively exploring legal and constitutional means to advance his client’s interests.”

3- Breitbart  

David Brock Launches ‘Dark Money’ Effort to Disbar, Shame, Impoverish Trump Election Lawyers

Left-wing ideologue David Brock has launched a “dark money” effort to disbar, publicly shame, and impoverish more than 100 lawyers who participated in filing post-election legal challenges to the 2020 presidential election results.


Axios reported Monday that the effort, named the “65 Project” because of the number of post-election lawsuits, is funded by anonymous donors and aims to discourage lawyers from representing Republican clients in any future election challenges.

Axios noted:


A dark money group with ties to Democratic Party heavyweights will spend millions this year to expose and try to disbar more than 100 lawyers who worked on Donald Trump’s post-election lawsuits, people involved with the effort tell Axios.

Why it matters: The 65 Project plans to begin filing complaints this week and will air ads in battleground states. It hopes to deter right-wing legal talent from signing on to any future GOP efforts to overturn elections — including the midterms or 2024.

Brock told Axios in an interview that the idea is to “not only bring the grievances in the bar complaints, but shame them and make them toxic in their communities and in their firms.”

 

    • “I think the littler fish are probably more vulnerable to what we’re doing,” Brock said. “You’re threatening their livelihood. And, you know, they’ve got reputations in their local communities.”
 

Brock made no attempt to hide the fact that he is trying to deprive his targets of their ability to earn a living, and that he is picking on smaller targets, simply because they represented an opposing side in legitimate filings in an election dispute.

In 2020, then-candidate Joe Biden boasted that his campaign had recruited 600 lawyers to file post-election challenges. One of the key lawyers, Marc Elias, was behind the 2016 “Russia collusion” hoax, but nevertheless led Democratic legal efforts.

Axios notes further that the 65 Project is focused on three groups of lawyers: those who represented Trump, those who were “alternate electors,” and those who were present at the January 6, 2021 protest and riot, whether or not they broke the law.

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