Daily Check-In 09/25/2018

Tuesday, September 25, 2018



Utah lawmaker Orrin Hatch, who sits on the Senate Judiciary Committee, filed a 44-page amicus brief earlier this month in Gamble v. United States, a case that will consider whether the dual-sovereignty doctrine should be put to rest. The 150-year-old exception to the Fifth Amendment’s double-jeopardy clause allows state and federal courts to prosecute the same person for the same criminal offense. According to the brief he filed on September 11, Hatch believes the loophole should be closed. “The extensive federalization of criminal law has rendered ineffective the federalist underpinnings of the dual sovereignty doctrine,” his brief reads. “And its persistence impairs full realization of the Double Jeopardy Clause’s liberty protections.”

A spokesman for the Utah senator denied that his brief was inspired by the Mueller investigation, noting that Hatch has “worked for years to address the problem of overcriminalization in our federal code” and wants the Court “to reconsider the rationale” for the doctrine “in light of the rapid expansion of both the scope and substance of modern federal criminal law.”

But while Hatch has earned his bona fides in the arena of criminal-justice reform, the timing of his filing is nevertheless significant. For months, the Gamble case has been analyzed through the lens of the Mueller investigation, and Brett Kavanaugh, Trump’s nominee to replace retired Supreme Court Justice Anthony Kennedy, could be on the bench by the time the Court reconvenes this fall. The justices decided to hear the case one day after Kennedy announced his retirement.

Paul Rosenzweig, a former senior counsel on the Whitewater investigation who serves as a senior fellow at the conservative R Street Institute, said he thinks the Hatch brief is “wrong substantively.” “If over-federalization of crime is a problem, we should stop over-federalization,” Rosenzweig said. “Hatch’s answer is to end federalism.”

But he cautioned that the case’s implications may not be as significant as they may seem. “It is at least plausible that if the Court gets rid of the [doctrine], it would mean that an acquittal in state court would prevent a second trial in federal court and vice versa,” Rosenzweig told me. But Trump’s pardon power is “explicitly limited in the text of the Constitution to pardons for ‘offenses against the United States,’” Rosenzweig said. If that language is interpreted to mean federal criminal offenses specifically, a Trump pardon wouldn’t protect against a state criminal prosecution, he said, no matter what happens to the double-jeopardy clause in Gamble.

Amid this legal murkiness, “overall” one thing is clear, Rosenzweig said: “A result overturning 200 years of dual sovereignty would very much muddy the waters.”

This story has floated under the radar, but I felt the need to talk about it a little bit, as it does have the chance to really screw things up, no matter how small that chance is.

Gamble vs. United States deals with a case in which a man is being tried for a crime in Federal court after already being convicted for the same crime in Alabama.  Gamble had already served a year in prison for illegally owning a firearm.  Following this conviction, the Feds charged him with their version of this crime.

What Gamble is asking the Supreme Court to do is to rule that the Separate Jurisdictions exemption to Double Jeopardy be ruled unconstitutional in cases which the defendant was already tried.

Generally, I think this is actually a good idea, but I’m worried about how this could play out in practice.  If it’s the exact same crime, the accused has already had their day in court, and likely spent their time in prison.  Charging them again for the exact same offense is overkill, and often malicious.

One problem with getting rid of this would be in cases of corruption, jury tainting, racism, or witness tampering.  If Paulie gets charged with a crime in Missouri but gets acquitted because he paid off a jury member, then this case should be tried in a different jurisdiction.

Where this could apply to the Mueller Investigation is if this is ruled unconstitutional then we get into the clusterfuck of “who’s charging who for what?”  The Feds would have to coordinate with state and local governments on who was bringing what charges at what times to avoid dual prosecutions.  This gets even uglier if the ruling is especially broad.  If the Double Jeopardy exemption is removed for not just the exact same crime but for very similar statutes, there’s enough wiggle room with possible pardons at the Federal level wiping out most if not all opportunities at state charges.

One phrase I’ve used several times is “exact same crime.”  I’m not a lawyer, so I’m not going to try to debate the tiniest of details, but to my layman’s ears that means things like Murder for Murder, Robbery for Robbery, and Possession for Possession.  Murder 1 in PA is Murder 1 in the US.  Getting tried in one court prevents the other from coming after the perpetrator.  But there are more and different crimes available in both jurisdictions.  State laws don’t have Treason and Federal Income Tax Evasion, while the Feds don’t prosecute State Income Tax Evasion and state vehicle code violations.  There’s still plenty of room for both State and Federal governments to co-exist.






From this comment by /u/Karma-Kosmonaut

Rand Paul a traitor. Congress is infested with traitors.

The July 4th Russia meeting

Sen. Richard Shelby (Republican-Alabama)

Sen. Steve Daines (Republican-Montana)

Sen. John Thune (Republican-South Dakota)

Sen. John Kennedy (Republican-Louisianna)

Sen. Jerry Moran (Republican-Kansas)

Sen. John Hoeven (Republican-North Dakota)

Sen. Ron Johnson (Republican-Wisconsin)

Rep. Kay Granger (Republican-Texas)

The August 6th Russia meeting

Sen. Rand Paul (Republican-Kentucky)












Avenatti vs. The Trolls

Michael Avenatti on Tuesday lashed out at reports that a client who was preparing to level allegations against Supreme Court nominee Brett Kavanaugh was a fake and part of a ruse by an outside group targeting Avenatti.

“I made the determination she was 100 percent credible well before Sunday night,” Avenatti, the attorney who also represents the adult-film actress Stormy Daniels in her lawsuit against President Donald Trump, told POLITICO, referring to the first time he disclosed the allegations involving Kavanaugh. “We’ve received over 3,000 inquiries in the last six months from people with all kinds of crazy stories and fabrications. I’ve heard it all. I’ve seen it all. Like we don’t vet clients. Give me a break.”

Kavanaugh is in a pitched battle to salvage his nomination, after two women have come forward to allege sexual misconduct decades ago. One of his accusers, Christine Blasey Ford, is set to testify before the Senate Judiciary Committee on Thursday about her allegation that a drunken Kavanaugh assaulted her at a house party when they were both in high school.

Anonline post on Tuesday claimed that Avenatti had been scammed by the online forum 4Chan, a place where online users delight in trolling public figures, setting off a firestorm on social media and purportedly jamming up Avenatti’s Twitter account. The attorney said he temporarily shut down the account because of online threats.

“This is just crazy that somebody can just tweet something out like this, or post it, and people just take it as truth,” he said. “It’s crazy.”

Avenatti, a possible presidential contender in 2020, said his client is “100 percent” real and still planned to come forward. When pressed on why the public should believe the accusations involving Kavanaugh when he hadn’t yet fronted a witness and had himself made claims over Twitter, Avenatti said he had remained consistent.

“I’ve been really clear. The timetable has not changed,” he said. “We haven’t moved the timetable back. Nothing’s changed. We don’t just do this at the drop of the hat. Had we waited until everything was in place to surface these allegations, then everyone would be complaining that we just dropped this on the committee at the last moment. There’s no winning in this situation. We wanted to surface the allegations for the committee, reasonably, once they were vetted, which is what we did.”

But he said members of the Judiciary Committee had not followed up on his offer to have them interview his client. Avenatti said the client had agreed to an FBI investigation and a polygraph test.

When asked whether she would take her story public regardless of whether the committee called her to testify, Avenatti responded: “Correct.”

“We have not arrived at a firm plan relating to the initial disclosure of these allegations,” he said. “We are still working through it. This is a very dynamic situation with a lot of emotions at stake.”

I’m going to give the short, short, version.  And no, I will not link to the original posts from 4Chan or screenshots from RedState, Daily Caller, or Townhall.  They are part of the amplification and propaganda problem.

A 4Chan user with a Pepe avatar claimed that he had convinced his stripper girlfriend to contact Michael Avenatti to bullshit him, get him to run his mouth, then organized a few of his Twitter buddies to attack his account.

The entire claim is bullshit.  First, it relies on a 4Chan user having a girlfriend.  Second, all of the “claims” were debunked in about 3 fucking seconds.  Third, this is classic Deza.  The exact same claims were made about the Steele Dossier when it came out, and the RWM ate that shit up like it was Mountain Dew flavored Doritos.

This ain’t Michael’s first rodeo.  He’s been dealing with this shit for a while, and the claims he made Daily Check-In 09/24/2018 against a sitting judge would cost him his career if they were made up.  Accusing an officer of the court of a crime is grounds for disbarment.  He needs receipts, statements, multiple witnesses, and enough background information to make his accusations stand up to scrutiny.

He ain’t fucking around.












Hey, hey hey, look who’s going to prison.  It’s America’s Favorite Drug Rapist TV Dad, Bill Cosby.

Should I start with a pudding pop joke?  How about asking if he has an orange knit sweater?

No.  I think I’ll just sit here and enjoy the schadenfreude, knowing that this monster will spend the bulk of his last years on this planet in prison.











That’s it for Tuesday.  It feels a little slower than Monday, but big things are coming for Wednesday.  How do I know?  Besides the fact that I’m posting this around lunchtime on Wednesday, I’ll just say I’ve got a feeling.

This is where I would normally say “I want to write something about…” but we know by now that I’ll forget the post by the end of the day.  I’m just going to buckle up and wait for the shitstorm to roll in.

SPOILER ALERT: Avenatti wasn’t bullshitting.  It’s much, much worse than most people thought, and I was unfortunately close to right.


Thank you, and have a good one.


“Without Journalists, it’s just propaganda.”

– Katy Tur

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