But this is only the tip of the iceberg when it comes to the PBM reform that advocates are calling for. Many would like to see Congress address vertical integration with insurers and pharmacies. The three biggest PBMs are owned by large insurance companies: CVS Health’s Caremark, UnitedHealth Group’s Optum Rx and Cigna’s Express Scripts.

A bill introduced in February by Senators Elizabeth Warren (D-Mass.) and Josh Hawley (R-Mo.) would take on this issue. The Break Up Big Medicine bill would “prohibit a parent company from owning a medical provider or management services organization and a PBM or an insurer.” It also takes action beyond PBMs, such as banning a parent company of a prescription drug or medical device wholesaler from owning a medical provider or management services organization. 

However, according to several healthcare policy experts, it’s not likely that this will pass.

“I think the chances of it passing are slim to none. I think the chances of it getting attention and actually starting conversations and possibly additional hearings might be likely, but I would be shocked if this got passed,” said Chris Deacon, principal and founder of VerSan Consulting.

One only needs to look at how long it took for the first set of PBM reforms to pass to know that the path ahead for this bill is rocky.

While it’s difficult to put a number on just how many bills have been introduced or reintroduced that involve PBMs, one of the early bills can be traced back to 2011: the Pharmacy Competition and Consumer Choice Act. This bill would have increased transparency of PBMs.

Bipartisan congressional efforts to control PBMs really started to ramp up in the last decade, first with the introduction of the Prescription Drug Pricing Reduction Act of 2019, which would have required more PBM reporting of rebates and discounts, according to Meredith Freed, senior policy manager with KFF’s Program on Medicare Policy.

Since then, numerous other bills involving PBMs have been introduced or reintroduced, most not even making it past being referred to committee (at least 20 were introduced during the 2023-2024 congressional session). However, a few have gotten out of committee, notably the Pharmacy Benefit Manager Transparency Act of 2023 and the Modernizing and Ensuring PBM Accountability Act of 2023.

The closest the U.S. got to federal PBM reform (prior to the Consolidated Appropriations Act of 2026) was in December 2024 when Congress attempted to pass a spending bill that included changes to PBMs, like disconnecting PBM revenue from drug prices in Medicare Part D. But Elon Musk argued that the bill included too much government waste, and President Joe Biden later signed a narrower spending bill that left out PBM reform.

“There have been a fair number of bipartisan efforts over the years. … Depending how you view it, I think some people from the pharmacy side might have said this is a multi-decade effort to address PBM reform. But in Congress, the momentum has really picked up in the last decade,” Freed said.

It’s worth noting that some states have enacted PBM reform, most recently California. Its law bans spread pricing, the practice of when a PBM charges a health plan more for a drug than it pays the pharmacy and keeps the difference as profit. Arkansas also passed a law that would prevent PBMs from owning pharmacies, but a federal judge blocked it from being implemented. Arkansas appealed this decision.

Could the Break Up Big Medicine bill pass?

It’s highly unlikely that the Break Up Big Medicine bill will pass, particularly after the Consolidated Appropriations Act of 2026 passed, according to Deacon of VerSan Consulting. The Department of Labor also recently proposed a rule that included additional PBM reforms, and Congress may be waiting to see how these initial reforms pan out.

The bill also includes broader reforms preventing parent companies of a prescription drug or medical device wholesaler from owning a medical provider. Deacon noted that while Warren isn’t wrong when she says companies have manipulated the healthcare system to enrich themselves, this “didn’t happen in the dark.” It happened in plain sight and often with the support of lawmakers to enable better coordination and more efficiency. And undoing this will be extremely difficult and unrealistic in the near term, Deacon said.

She added that there are economic factors to consider as well.

“The profits of these large insurers and healthcare conglomerates don’t just go to corporate executives or ‘greedy shareholders.’ They are deeply embedded in public pension funds, retirement accounts, and 401(k)s held by millions of Americans. … So while the concerns about consolidation are real, reversing decades of structural integration across the healthcare system is far more complicated than simply passing a bill; simply a bridge too far for politicians today,” she said.

On an episode of MedCity Debunked, Samir Batra, managing partner of Health Innovation Pitch, echoed these comments, stating that this bill — while appealing — would cause “epic destruction” of existing industry structures. That’s because it goes beyond just aiming to break up the legacy PBMs that dominate the market. It also seeks to break up companies like Cardinal Health and McKesson — companies that aren’t even PBMs.

“Epic destruction” aside, the political and legal hurdles would make it highly unlikely to succeed, especially considering the lobbying power companies like UnitedHealthcare, CVS Health and Cigna have, he said.

A.J. Barbarito, associate attorney at Frier Levitt, agreed that this bill is unlikely to pass, especially as a standalone bill.

“Congress is not famous these days for passing many laws,” he said. “The PBM bill that did finally get through was [part of] a larger budgeting act. That’s the kind of law that typically gets through when we’re seeing any major reform or any major law being passed, it is with an appropriations bill. A standalone bill like this, I don’t see a great deal of potential for passing.”

The fact that it is a bipartisan bill sponsored by one of the most liberal members of Congress (Warren) along with one of the most conservative members of Congress (Hawley) may work in its favor, Barbarito noted. Still, this bill is likely too extreme for most Republicans and even some “middle-of-the-road” Democrats, he said.

Meanwhile, Patients for Affordable Drugs, an advocacy organization, believes the bill could go either way. Some lawmakers may argue that they’ve already enacted PBM reform, so why bother going even further? However, Americans want prescription drug reform, with 9 out of 10 urging Congress to do more to lower drug prices.

“I think there will be a continued appetite to go after insurance and vertical integration,” said Merith Basey, CEO of the organization. Patients for Affordable Drugs’ first priority, however, is patent reform with pharma companies, she noted.

While most PBM reform bills have stalled before gaining meaningful traction, their introduction still serves an important purpose, according to Barbarito.

“I do find there to be value in putting forth bills like this. … I think that it is very important for people to start discussing the problem of consolidation and vertical integration. … It is very obvious that there is a profound conflict of interest with a PBM that contracts with pharmacies setting rates for the pharmacy that it itself owns, and setting rates for its own competitors. It’s viscerally disturbing to see a system that currently permits that,” he said. “What I really like about this bill is that it brings that to light, and it opens up a conversation for folks.”

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President Barack Obama takes to Twitter to say this about the members of Congress:

It’s called SEDITIOUS BEHAVIOR AT THE HIGHEST LEVEL. Each one of these traitors to our Country should be ARRESTED AND PUT ON TRIAL. Their words cannot be allowed to stand — We won’t have a Country anymore!!! An example MUST BE SET.

An hour later, Obama emphasized his point:

SEDITIOUS BEHAVIOR, punishable by DEATH!

What would happen next?

There would of course be a Republican uproar in Congress. The uproar would be justified. A bunch of Democrats would probably join the chorus.

The main issue would be the appropriate remedy for the president acting this way: Congressional censure? Surely. Impeachment? Maybe. Is falsely accusing members of Congress of sedition, punishable by death, a high crime or misdemeanor? Is the accusation an implicit threat, inciting the presidents’ supporters to commit violence? Or maybe the Cabinet should invoke the 25th Amendment because the president’s sanity, or at least capacity, is in question? Again, maybe.

In any event, Obama’s statement would ignite a firestorm. The presidency would be at risk.

Suppose in 2022 Joe Biden had been caught on camera saying to a female reporter who asked him a hard question: “Quiet! Quiet, piggy.”

Would Republican operatives have said that Biden was being “frank and honest” and this was one of the many reasons people had elected Biden? Or would Republicans have been up in arms? “If the chief executive officer of any public company had been caught on tape doing this, he’d be fired before the end of the day!”

I can hear the Republicans now: “The old coot is senile! He’s lost his sense of propriety! An autopen must be signing legislation!”

I’m not sure Republicans would have tried to impeach Biden over this, but it would have been quite a scandal.

These two events — presidential allegations of sedition and the admonition “quiet, piggy” — of course occurred last week in Donald Trump’s administration. There was no public outcry.

Indeed, what’s remarkable is that those two events were probably not the most shocking things that Trump said or did last week. Trump praised the human rights record of Mohammed bin Salman — the man who the CIA concluded with high confidence had ordered the assassination of Jamil Khashoggi. Trump threatened war with Venezuela. Trump deployed the National Guard to yet another American city.

I often think that pundits turn up the volume too high, becoming hysterical about every one of Trump’s slight missteps. But then I think that, in normal times, people would have gone nuts over behavior as erratic as Trump’s was last week.

These, of course, are not normal times. In the age of Trump, none of Trump’s comments or deeds is a big deal. It’s just Trump being Trump.

But until something, or someone, restrains Trump, this will get worse before the term is out.

Mark Herrmann spent 17 years as a partner at a leading international law firm and later oversaw litigation, compliance and employment matters at a large international company. He is the author of The Curmudgeon’s Guide to Practicing Law and Drug and Device Product Liability Litigation Strategy (affiliate links). You can reach him by email at inhouse@abovethelaw.com.

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Did you know, that since PierogiGate, Martha’s Vineyard turned out to wait in line for pierogies to support Dershowitz’s vendor nemesis? USA! USA!

Back to the topic at hand. Dershowitz had sued CNN in the wake of his role advocating for Donald Trump’s right to threaten cutting off President Zelenskyy if the Ukrainian leader didn’t scratch Trump’s increasingly bloated back in building a corruption case against Joe Biden over Hunter Biden’s job or something something. The conspiracy theory was always stupid and the geopolitical risk in withholding Ukrainian aid was always very real — tragically proven right soon after — that Congress impeached Trump for trying to use U.S. foreign policy to fuel his fundraising. Trump survived the trial, mostly because Democrats did not have 67 seats in the chamber, but Dershowitz helped too.

In the course of his effort to get Trump off the hook, Dershowitz made the claim that presidents can engage in foreign policy quid pro quo, even if the president is negotiating for his personal — and not the country’s — gain, so long as the president sees his personal fortunes as key to the national interest. Would that extend to an excuse as flimsy and self-serving as reelection? Dershowitz said… quite possibly!

[A] complex middle case is: I want to be elected. I think I am a great President. I think I am the greatest President there ever was, and if I am not elected, the national interest will suffer greatly. That cannot be [an impeachable offense].

If the president does it, it isn’t illegal as the saying goes.

The mainstream media jumped on Dershowitz indulging in the insane theory that the law contemplates presidents engaging in foreign policy for personal gain. Little did they know at the time that we would soon have the Supreme Court endorsing presidents deploying SEAL Team 6 to murder political opponents based on a president’s subjective faith in their own election. Everyone dragged Dershowitz for his suggestion that presidents can have a little corruption as a treat.

But Dershowitz complained that this straightforward interpretation of his fairly explicit remarks was incorrect. For their part, CNN brought Dershowitz on to explain. So he sued CNN for $300 million. The Eleventh Circuit responded with “LOL, no.”

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The litigation is a Mad Libs acid trip freakshow. The precipitating event was a rambling interview Byrne gave for the inaugural edition of something called Capitol Times Magazine in which he accused Joe and Hunter Biden of a bribery scheme involving Iranian nukes.

Five months later, Hunter Biden sued Byrne for defamation in the Central District of California. The complaint was part of a spate of litigation the former president’s son filed, including lawsuits against Rudy Giuliani, a former Trump White House aide turned anti-Biden content creator, and the IRS. Most of those suits have dried up, but the case against Byrne persists — likely because, unlike his erstwhile pal Rudy, Byrne is still solvent.

The case proceeded in somewhat chaotic fashion. Byrne claimed to be hiding from Venezuelan assassins in Dubai and refused to return to the US to be deposed. But finally after multiple postponements and motions for sanctions, the day of trial arrived on Tuesday. Sixty jurors were assembled for voir dire. And then …

Judge Stephen Wilson has been on the bench since 1985. In Los Angeles. This man has seen some shit. And yet faced with the Byrne’s peculiar brand of chaos, he all but shorted out.

On Tuesday morning, Byrne was not in the courtroom, and neither was his lawyer, Michael Murphy. Instead, three other lawyers were at the table. Local counsel included Eric Neff, a former LA County prosecutor forced out (Opens in a new window)after filing a bogus election fraud case, and Tom Yu, whose practice (Opens in a new window)appears to consist entirely of defending cops in civil and criminal actions. The new lead attorney was one Stefanie Lambert, familiar to readers of this website as Byrne’s lawyer in the defamation case brought in DC by Dominion Voting Systems. In that case, she managed to get herself kicked out (Opens in a new window)after repeatedly sharing protected discovery data — but not before getting herself arrested (Opens in a new window)in the courtroom on an outstanding warrant from her home state of Michigan for tampering with voting machines (Opens in a new window). Lambert said that her motion for pro hac admission had been filed that morning, and cheerfully announced that she’d been managing the case from behind the scenes for months and was ready to proceed with the trial.

Unsurprisingly, the court had concerns. And so did the plaintiffs, who noted that Lambert was out on bond on two felony charges and had somehow forgotten to mention in her sworn declaration that her PHV application had been denied (Opens in a new window)in the Middle District of Florida just six weeks earlier in yet another defamation suit against Byrne.

After a brief break, Judge Wilson denied Lambert’s PHV application, ordered her to remove herself from the counsel table, and told Neff he was in charge of the case. He also informed Neff that the lawyer is supposed to stand while addressing the court — something which appeared to be news to the lawyer.

But it was not meant to be! After another break, Neff and Yu returned to inform the court that they had both been fired.

“That must have happened in the last hour,” the judge gaped (Opens in a new window)incredulously.

“It happened in the last ten minutes, Your Honor,” Yu conceded.

Which is just as well, really, since, as it turns out, Neff isn’t admitted to the bar (Opens in a new window)of the Central District of California.

Plaintiff’s counsel promptly moved to hold the defendant in default, since he’d failed to appear for trial. And Judge Wilson told the parties he’d hold a show cause hearing on the motion for default at 9:30 the following morning.

That evening, Byrne filed a motion for reconsideration (Opens in a new window), demanding that the court reverse its decision to deny PHV admission to Lambert, decrying it as an abuse of discretion, and vowing to take an immediate appeal to the Ninth Circuit to vindicate his Sixth Amendment right to counsel. It described Lambert as an election law expert, “the premier specialized attorney in the County in this niche area of law.”

This language sounds strikingly like an objection (Opens in a new window)Lambert filed to her disqualification from the Dominion case, in which she described herself as “the foremost leading expert advocate and attorney in the country, who has all the knowledge concerning Dominion’s voting machine systems, their flaws, and the collusion and involvement by foreign nationals and foreign elements directly in federal elections, is telling.” But here the document was signed by Florida lawyer Peter Ticktin, Donald Trump’s former boarding school roommate who served as local counsel in the Clinton RICO trollsuit that got the president $1 million in sanctions. His PHV application in the Byrne case was approved July 24, although he was not among the many attorneys in court on Tuesday.

In the event, Judge Wilson denied (Opens in a new window)Biden’s request for a default judgment and postponed the trial yet again, this time to October 14. The defendant was ordered to appoint new counsel by August 15 and submit to further discovery on his finances. Lambert’s motion to reconsider her pro hac bid was rejected, and Ticktin’s admission was retroactively voided.

All in all, another big win for Team Bananapants Crazy.

Liz Dye produces the Law and Chaos Substack and podcast.

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The tweets are even worse. They “begin, and cease, and then again begin,” frothing and vanishing into the twittersphere.

So slow down this week and think about some of Trump’s best tweets.

Trump wrote(Opens in a new window), for example, on January 29, 2024 — early in the 2024 presidential campaign — that Trump, and not then-President Biden, deserved credit for the recent rise in stock prices: “THIS IS THE TRUMP STOCK MARKET BECAUSE MY POLLS AGAINST JOE BIDEN ARE SO GOOD THAT INVESTORS ARE PROJECTING THAT I WILL WIN, AND THAT WILL DRIVE THE MARKET UP . . . .”

Fair enough. Until Trump’s recent tariff idiocy cratered the stock market. On April 30, 2025 — 15 months after the first tweet and a few months into the Trump presidency — the stock market faltered. Then, of course, Trump was not to blame(Opens in a new window): “This is Biden’s Stock Market, not Trump’s. I didn’t take over until January 20th . . . . [W]e have to get rid of the Biden ‘Overhang.'”

Please note two things. First, the random capitalization is, of course, Trump’s, not mine. I haven’t forgotten what I learned in elementary school, so I capitalize more or less correctly. Second, Trump routinely takes credit for everything good and takes blame for nothing bad. These starkly contradictory tweets aren’t unusual for Trump; they simply demonstrate undeniably, in his own words, his customary schtick.

What else do Trump’s tweets (or, now, “truths”) show?

On the campaign trail, Trump told us repeatedly that he would end the war between Russia and Ukraine on his first day in office (if not earlier). Trump was campaigning, of course, so we knew — as Trump later conceded — that he was being a little optimistic. Still, I couldn’t wait to see how Trump’s genius would unwind what seemed to be a thorny situation.

On April 24 of this year, Trump revealed his strategy. He tweeted(Opens in a new window): “Vladimir, STOP!”

Whoa! If only I’d thought of that! That’s why we elected the guy! Gimme a minute to check on how this brilliant new approach to negotiations has worked.

I’m just getting warmed up. Back in his first term, Trump tweeted(Opens in a new window): “How low has President Obama gone to tapp [sic, of course] my phones during the very sacred election process. This is Nixon/Watergate. Bad (or sick) guy!” This was insane, and the FBI explained at the time that it had no evidence to support the claim.

But maybe I’m lying. So, call my bluff, Trump: You’re now having the FBI investigate endless silly things. Instruct the FBI to look into Obama’s wiretaps, dig up evidence to support your accusation, and put the criminals away.

Fat chance.

Most recently, and the event that prompted this column, was what Trump posted on Memorial Day. There’s a law, 36 U.S.C. Section 116, that “requests” that the president issue a proclamation each Memorial Day calling on the people of the United States to unite in prayer for permanent peace. Here(Opens in a new window), in part, is how the moron-in-chief fulfilled his commitment this year:

HAPPY MEMORIAL DAY TO ALL, INCLUDING THE SCUM THAT SPENT THE LAST FOUR YEARS TRYING TO DESTROY OUR COUNTRY THROUGH WARPED RADICAL LEFT MINDS, WHO ALLOWED 21,000,000 MILLION [sic, of course] PEOPLE TO ILLEGALLY ENTER OUR COUNTRY, MANY OF THEM BEING CRIMINALS AND THE MENTALLY INSANE, THROUGH AN OPEN BORDER THAT ONLY AN INCOMPETENT PRESIDENT WOULD APPROVE, AND THROUGH JUDGES WHO ARE ON A MISSION TO KEEP MURDERERS, DRUG DEALERS, RAPISTS, GANG MEMBERS, AND RELEASED PRISONERS FROM ALL OVER THE WORLD, IN OUR COUNTRY SO THEY CAN ROB, MURDER, AND RAPE AGAIN — ALL PROTECTED BY THESE USA HATING JUDGES WHO SUFFER FROM AN IDEOLOGY THAT IS SICK, AND VERY DANGEROUS FOR OUR COUNTRY . . . .

Did anyone ever die in defense of this country and now deserve a moment of tribute?

I should be used to this by now. Trump habitually uses holidays — Christmas, Easter, Memorial Day — not to commemorate religious or historical events, but instead to tear America apart, often in all caps.

Trump takes pride in his pronouncements on social media and the number of people he can influence with what he says. He’s rumored to write many of the tweets himself. And the tweets demonstrate, without much doubt . . . well, decide for yourself.

Aren’t you proud of having voted for this guy?

Mark Herrmann spent 17 years as a partner at a leading international law firm and later oversaw litigation, compliance and employment matters at a large international company. He is the author of The Curmudgeon’s Guide to Practicing Law(Opens in a new window) and Drug and Device Product Liability Litigation Strategy(Opens in a new window) (affiliate links). You can reach him by email at inhouse@abovethelaw.com(Opens in a new window).

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I understand, if I don’t necessarily agree with, President Biden’s pardons of his son, Hunter; the January 6 Committee; and other Biden family members.

When first asked, Biden shouldn’t have flatly denied any intent to pardon Hunter; that makes Biden a liar. Biden should instead have said, before Hunter was convicted, that the elder Biden would reserve judgment on pardoning Hunter to see how the process played out. After Hunter was convicted, the president should have said, basically, “I love my son. He’s not dangerous or a threat to national security. I’m the president. I’m pardoning Hunter. I know that you may criticize me for this, but that’s the way it is.”

That wouldn’t have made the pardon any more correct, but I think Americans generally would have understood the sentiment.

I also understand, if I don’t necessarily agree with, the pardons of the January 6 Committee and the other Biden family members. None of these people had been charged with, let alone convicted of, any crimes. But all of these people had been personally threatened by Trump and folks associated with Trump.

It’s a bit unusual (though not unprecedented; think of Jimmy Carter’s pardon of Vietnam War draft dodgers) to pardon people who have not been convicted of anything. It’s also a dangerous precedent to have presidents start pardoning their family members; I wouldn’t like pardoning all the relatives to become routine at the end of every president’s term. But I understand why Biden decided to do this. If Trump’s going to threaten folks who have not been indicted or charged, then Biden’s going to protect those people.

(I’m sure that I’ll hear from some Trump loyalists that the “Biden crime family” is all guilty as sin. That’s why I’ve phrased the previous paragraphs carefully: Other than Hunter, none of Biden’s relatives have been charged with, or convicted of, anything. That’s indisputable.)

Let’s think now about Trump’s January 6 pardons. Again, I’m certain to hear from Trump loyalists that all the January 6 rioters were members of antifa, FBI informants, or tourists simply visiting the Capitol Building. But remember what Republicans — Republicans — said about January 6 immediately after the event. The Atlantic recently had an article collecting those contemporaneous Republican reactions. We all know that Mitch McConnell, Lindsey Graham, and Kevin McCarthy blamed Trump on, or just after, January 6, 2021. But I’m not sure I knew that Elise Stefanik, soon to be Trump’s ambassador to the United Nations, said, “The perpetrators of this un-American violence and destruction must be prosecuted to the fullest extent of the law.” Doug Burgum, soon to be Trump’s Secretary of the Interior, said, “The violence happening at our nation’s capital is reprehensible and does not represent American values, and needs to stop immediately.” In fact, I’d forgotten completely that Trump himself said shortly after January 6 that “those who broke the law, you will pay,” and Trump later vowed that “those who engaged in the attacks last week will be brought to justice.”

I guess Americans really do have the memory of a goldfish. But my argument starts from the premise that there was violence on January 6 and folks who engaged in that violence were appropriately tried and sentenced.

What’s the excuse for Trump having given blanket pardons or commutations to people involved in the January 6 riot?

That the rioters didn’t do anything wrong? That’s what Trump’s saying now, but it’s simply not true. And anyone who watched TV on January 6, or listened to Republicans at the time, knows that Trump and his supporters are now lying.

Perhaps it’s OK for Trump to pardon the January 6 rioters because Biden issued some pardons?

No. Biden’s pardons were only marginally, if at all, misguided. Biden didn’t release dangerous convicts. Trump, in contrast, gave wholesale pardons and commutations to nearly 1,600 people who had been charged, convicted, and sentenced.

None of the folks convicted in the January 6 riots had committed violent crimes?

According to Lawfare, these are the statistics:

Of the total 1,583 arrested, according to the department’s figures, 608 — or 38 percent — were charged with either assaulting or impeding federal police officers. Of those that assaulted officers, 174 were charged with an enhanced version of the crime for using deadly or dangerous weapons or for inflicting bodily harm on the officer.

Some folks were convicted of seditious conspiracy for plotting to keep President Trump in power and amassing weapons for that purpose. Sentences ranged up to 22 years. That ain’t beanbag.

Maybe folks sentenced to prison for their conduct on January 6 had already suffered enough?

Not in the eyes of the judges, and sentencing guidelines, which said that some of these criminals should have spent much, much longer in prison than they did.

Maybe the Black Lives Matter protestors weren’t prosecuted, so the January 6 protestors shouldn’t have been prosecuted either?

Be serious. First, anyone who destroyed property or injured people in any protest should be prosecuted. Black Lives Matter, January 6 rioters, whoever. Get real.

Second, at least some Black Lives Matter protestors were prosecuted. For example, prosecutors brought charges including arson, assault, and felony assault for the riot in Portland, Oregon.

Moreover, neither you nor I know exactly what happened in Portland (or, for that matter, at the Capitol Building). We don’t know precisely how serious the violence was. We don’t know who did what to whom. We don’t know what prosecutions would have faced evidentiary problems at trial — although it’s likely that there were more security cameras, broadcast television cameras, and personal iPhone cameras at the Capitol than in Portland, which probably aided the prosecutions of those who invaded the Capitol.

Maybe the January 6 rioters should escape punishment because you’ve heard stories about some guy in Portland or Minneapolis who should have been prosecuted and wasn’t?

You have no clue if the story you heard was true. Even if it were true, what does the story tell us? People routinely argue that “There was a blizzard yesterday, so climate change is a hoax,” or “I heard about one time when a good guy with a gun caught an escaping criminal, so there’s no need for gun control.” If you think that these sorts of anecdotes constitute argumentation, you need a lesson in logic.

Lastly, think of the timing of the pardons. Biden issued pardons as he left office, which is the usual way of doing these things. The president skulks out of office, no longer having to face the electorate, and he does some crappy stuff as he leaves. (Ask Bill Clinton about Marc Rich.) Those who were pardoned feel lucky, but they do not feel empowered to commit more crimes in the future. The criminals don’t know if they’d be pardoned again, by a different president, next time.

Trump’s pardons were different.

By pardoning the January 6 rioters on his first day in office, Trump signaled to a bunch of his supporters, which included white supremacists and violent criminals, that they’re safe for the next four years. So long as Trump is in office, folks don’t have to worry about engaging in violence on behalf of him. (I’m not sure that Trump will pardon folks for engaging in pro-Nazi protests; Trump doesn’t care about the Nazis. But Trump will probably pardon you for engaging in pro-Trump protests; Trump cares about Trump.) Indeed, even the conservative Wall Street Journal recently noted that those Trump pardoned last week have been reenergized by his decision.

I don’t think Hunter Biden, Liz Cheney, and the others pardoned by Joe Biden pose serious threats to others.

But those pardoned by Trump? The next four years will tell.

Mark Herrmann spent 17 years as a partner at a leading international law firm and later oversaw litigation, compliance and employment matters at a large international company. He is the author of The Curmudgeon’s Guide to Practicing Law and Drug and Device Product Liability Litigation Strategy (affiliate links). You can reach him by email at inhouse@abovethelaw.com.

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Publicly announced on Monday after months of build-up and debate, the new rule divides the world into three zones with varying levels of access to US tech. It’s an attempt to simplify routine exports of high-powered chips while simultaneously closing loopholes that China and other adversaries could exploit to steal cutting-edge AI components and know-how.

“We have a national security responsibility to do two things,” National Security Advisor Jake Sullivan told reporters Sunday: “First, to preserve, protect and extend American AI leadership, particularly vis a vis strategic competitors; and second, ensure that the benefits of American AI are spread to people around the world, including the global build-out of data centers to run AI applications.”

Critics, however, say this will all backfire horrifically. They argue the rule will tie US exports up in regulatory knots so tight they won’t be able to compete for sales with China, whose industry will then get to dominate the international market in AI. (That’s arguably how Chinese drones flooded the globe after the US limited exports of unmanned aircraft technology).

The draft AI rule “will go down as one of the most destructive to ever hit the U.S. technology industry,” Oracle VP Ken Glueck seethed in a Jan. 5 blog post, evidently having read a near-final draft. “[It’s] a highly complex and wildly overbroad attempt to regulate Artificial Intelligence and GPUs [that will] shrink the global chip market for U.S. firms by 80 percent and hand it to the Chinese.” And as soon as the rule officially went public, the Information Technology & Innovation Foundation (ITIF) expressed “serious concerns,” the Semiconductor Industry Association said it was “deeply disappointed,” and leading chipmaker NVIDIA appealed directly to incoming President Trump.

“The first Trump Administration laid the foundation for America’s current strength and success in AI, fostering an environment where U.S. industry could compete and win on merit without compromising national security,” NVIDIA government affairs chief Ned Finkle wrote on Monday. “In its last days in office, the Biden Administration seeks to undermine America’s leadership with a 200+ page regulatory morass.” (The actual PDF clocks in at 168 pages, suggesting Finkle, like Glueck, didn’t see the exact same version).

But the new rule says “interim” in the title for a reason: The actual final rule on export of AI tech will be decided by the incoming Trump administration.

So which way will the returning president likely jump?

“It’s very difficult to say,” UPenn professor and Council on Foreign Relations fellow Michael Horowitz, who served under Biden as senior Pentagon policy official with a special focus on AI, said in an interview with Breaking Defense.

That’s because of the competing factions in and around the incoming administration, rather than between political parties. As in the recent intra-GOP battles over H-1B visas, Trump could either side with the protectionist, anti-China instincts of his MAGA base or the deregulatory, globally-exporting agenda of tech-sector allies like Elon Musk.

“If Trump’s focused mostly on restricting [China], they’d probably be favorable,” Horowitz said. “If they find industry concerns more persuasive, you could imagine them rolling back at least some of the regulations.”

Apparently aware of worries from industry leaders — and having been publicly skeptical of export controls on China herself — Commerce Secretary Gina Raimondo emphasized the “very long” 120-day public comment period. “We hope that the next administration takes full advantage of those 120 days,” she told reporters Sunday.

That’s a much longer period for public comments than usual for such regulations, said Horowitz.

“My understanding is that comment period was lengthened given industry concerns, which means that the incoming Trump administration will have ample time to get industry feedback and decide if they wish to make changes,” said Horowitz, who wrote his own explainer on the interim rule for CFR.

The draft regulation currently online [PDF] is168 pages. But what’s actually in it?

The Devils In The Details

In brief, the proposed rule divides the countries of the world into three concentric circles of ever-decreasing trust:

Eighteen close allies and partners, like Japan and France, get to join the inner circle, judged not just friendly to the US but sufficiently disciplined in their own export controls that they won’t buy American tech only to let it leak to third parties like Beijing.*

“No restrictions apply to chip sales” to those nations, an official summary says. A company based in these inner-circle countries, or in the US itself, can also use those US chips to build data centers in other inner-circle or even second-tier states, up to certain relatively high limits — if the company can prove it follows National Security Agency “best practices,” which qualifies it as a “Universal Validated End User” (UVEU). The complex and binding nature of those requirements, however, is one of critics’ greatest concerns.

The vast majority of countries fall in the middle ring, which the rule subjects to additional controls on cutting-edge exports while trying to streamline existing regulations on routine commerce. Any given company, agency, or other organization (“end user”) in such a country would now be allowed to import a substantial amount of computing power without restriction: It’s “the equivalent of 1,700 of today’s most advanced AI accelerator chips (e.g. Nvidia H100s) each year,” a White House background paper says, “[worth] tens of millions of dollars of chips for each entity.”

A company based in these countries can also use US AI tech to build data centers in any other such country, under strict limits, if it qualifies as a “National Validated End User” (NVEU, a less privileged status than UVEU). Again, this requires following US security rules.

Finally, 22 nations** subject to US arms embargoes fall in the outer ring, beyond the pale of acceptable importers. These countries would remain subject to all existing export controls, without enjoying any of the new exemptions. In addition they would now be forbidden from importing the most high-end closed-source AI models. (Open-source models are, by definition, freely available to all and their distribution can’t be controlled.)

In effect, the Biden administration argues, the new regulation makes most AI exports easier for most buyers and sellers in most countries, exempting them from current export controls, while tightening safeguards on the most powerful technologies going to the most dangerous countries.

One anonymous senior official told reporters: “What we have done here is actually going to enable the build-out by removing what had been, you know, in many cases, fairly long delays in licensing for even smaller quantities of chips.”

* The 18 trusted allies and partners subject to the fewest restrictions under the draft rule are Australia, Belgium, Britain, Canada, Denmark, Finland, France, Germany, Ireland, Italy, Japan, the Netherlands, New Zealand, Norway, South Korea, Spain, Sweden, and Taiwan.

** Besides China, which includes Hong Kong and Macau, the 22 blacklisted states are Afghanistan, Belarus, Burma, Cambodia, Central African Republic, Congo, Cuba, Eritrea, Haiti, Iran, Iraq, North Korea, Lebanon, Libya, Nicaragua, Russia, Somalia, South Sudan, Syria, Venezuela, and Zimbabwe.

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On Saturday, President Joe Biden signed a narrower spending bill that avoided a government shutdown but left out several healthcare provisions that were included in the original bill. The original was opposed by Tesla CEO Elon Musk and President-elect Donald Trump, who argued that it included government waste, according to the Washington Post.

Because of this, drug pricing reform became “collateral damage” and was part of the healthcare provisions that were excluded in the new bill, advocacy organization Patients for Affordable Drugs Now said in an announcement. The reforms cut out from the package included:

• The Affordable Prescriptions for Patients Act, which limits the number of patents pharmaceutical companies can apply to biologics
• A provision of the Lower Costs, More Transparency Act, which addresses a hurdle in generic drug approvals by requiring the FDA to provide clearer guidance on ingredient differences
• The Modernizing and Ensuring PBM Accountability Act, which seeks to disconnect pharmacy benefit managers’ (PBM) revenue from drug prices in Medicare Part D, reducing the incentives for PBMs to push higher-cost medications. It would also require them to disclose drug pricing and related information to Part D plan sponsors.

“These critical reforms had strong bipartisan support, saved taxpayers billions of dollars, and would have delivered real relief for patients,” said Merith Basey, executive director of Patients For Affordable Drugs Now, in a statement. “Leaving these bills out of the end-of-year package means that Americans will continue to pay the highest drug prices in the world. Regrettably, politics and powerful outside interests took precedence over the needs of patients.”

The organization added that excluding these measures means the next chance to pass them won’t be until the next Congress, delaying relief for millions of Americans.

Drug pricing reform wasn’t the only healthcare provision left out of the updated spending bill. Prior authorization reform also didn’t make it in the final package, as well as a provision to address declining reimbursement rates for Medicare. This was blasted by the American Medical Association.

 “Congress heads home today leaving in place a 2.83% cut for doctors,” said Bruce A. Scott, MD, president of the American Medical Association, in a statement. “It did not provide a rational permanent, inflation-based update as the Medicare Payment Advisory Commission recommended. It didn’t even offer doctors a Band-Aid in the form of a cut reduction, as the cost of delivering care rises 3.5% next year.”

The new spending bill also provided shorter extensions for Medicare telehealth flexibilities and the Acute Hospital Care at Home program. Both of these provisions are extended through March 31, 2025. The original bill included a two-year extension of the Medicare telehealth flexibilities and a 5-year extension of the Acute Hospital Care at Home program.

Kyle Zebley, senior vice president of public policy at the American Telemedicine Association, said the outcome wasn’t what the organization had “fully hoped for,” but that the legislation is still “an important step to avoid disruptions in critical areas of telehealth access.”

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Joe Biden could forestall Trump’s efforts at retribution by pardoning the people that Trump says he’s likely to prosecute. Those people might include, for example, Adam Schiff, a vocal Trump opponent in Congress. Or Liz Cheney and Adam Kinzinger, the Republicans on the January 6 Committee. Or Anthony Fauci, loathed by MAGA for his role in the COVID response. Or Mark Milley, the former chairman of the Joint Chiefs of Staff, who supposedly committed “treason” near the end of Trump’s first term in office.

Jack Smith, the special counsel who prosecuted Trump, and Smith’s staff are probably safe. Federal prosecutors have broad immunity for actions taken in their prosecutorial roles. And I assume that Alvin Bragg, the New York state prosecutor, and Fani Willis, the Georgia prosecutor, are also safe. But Biden might choose to pardon these people anyway. These folks can’t be charged for anything having to do with their prosecutions of Trump but, in the words of Stalin’s head of the secret police, “Show me the man, and I’ll show you the crime.” Who knows what a politicized FBI and Department of Justice intent on prosecuting people might dig up as alleged crimes committed by Smith and the others? Pardons would avoid that possibility.

Even beyond that, there are plenty of other possible targets for Trump. Couldn’t the Department of Justice gin up charges against E. Jean Carroll, who sued Trump twice for defamation and has recovered judgments worth a little more than $88 million (plus interest)? Or Joe Scarborough? Or Mika Brzezinski? Or hundreds of other folks who have said nasty things about Trump?

For purposes of this column, the question is whether Biden should pardon Rachel Maddow. That’s just an example, of course. The real question is whether Biden should pardon any, or all, of the folks at risk of Trump’s retribution.

When I say retribution, I mean that Trump, who will be at the helm of the Department of Justice on January 20, could order the DOJ to investigate and file criminal charges against people. Trump could also do lesser things, such as ordering the IRS to audit his political enemies, but let’s focus on the big one — criminal charges.

Maddow (and the like) have of course done nothing criminal. Maddow’s well within her rights to criticize Trump; many would say that Maddow’s criticisms are correct, and Trump merits criticism. But that’s really beside the point. If the DOJ were simply to open an investigation of Maddow, issuing a subpoena compelling Maddow to appear before a grand jury, Maddow would incur expenses. If Trump were to convince the DOJ to commence a criminal case against Maddow, she would be forced to spend tens of thousands of dollars defending herself, even if she were able to get the case dismissed at an early stage. And if Trump ordered the DOJ to file the case against Maddow in a deep red state, with many Trump appointees serving as judges, a judge might not dismiss the charges at an early stage, which would force Maddow to spend hundreds of thousands of dollars defending herself at trial, despite the case being ridiculous from the start. Lastly, of course, once a case goes to trial, there’s always a chance that a red-state jury might convict, no matter how silly the charges.

Maddow is worth a lot of money, so she could afford to defend herself.

But Cheney, or Schiff, or Milley don’t have that kind of money.

Trump’s decision simply to start an investigation of those people would be burdensome. The DOJ’s pursuit of a criminal case could bankrupt these folks.

And Biden could preempt all these things, simply by granting pardons. Should he?

This is actually a pretty tough question.

On the one hand, Biden could pardon Maddow (and the like). Maddow would have the right to decline the pardon, leaving herself at risk. Or she could accept the pardon, avoiding the possibility that she would be investigated or charged.

If Maddow (and the like) accepted a pardon, the right-wing media would immediately have a field day: “Maddow (and Cheney, and Milley, and the like) is obviously guilty as sin! Think what she must have done to have Biden issue, and then have Maddow accept, a pardon! Criminality among these radical left lunatics is rampant! The only way they could avoid jail is by having the president issue pardons! Maddow belongs in jail! The pardon proves it! Scum.”

Hmmm. That’s not so good.

So Biden could do the opposite: He could choose not to issue pardons.

That would avoid having the right-wing media scream that folks on the left had plainly committed crimes.

And if Trump is just bluffing, and doesn’t actually seek retribution against his political enemies, there will be no criticism of anyone. The problem will have disappeared.

But it could turn out that Trump is not bluffing. He might actually order the DOJ to investigate, and charge, hundreds of his political enemies. Those folks would incur the huge expense and risk that I’ve just outlined, even though they had done nothing wrong.

Pundits on the left would criticize Biden mercilessly for his choice not to issue pardons: “How could Biden have been such a fool? Trump announced in advance that he was out for retribution. He appointed loyalists to every key position in the Department of Justice. Biden knew full well that all these people were going to be prosecuted. He had the power to forestall this, simply by issuing pardons. And he didn’t do it! What a fool! The guy must be senile, after all!”

Biden has a choice to make.

It is not at all an easy choice. He’ll be criticized either way — unless Biden chooses not to pardon, and Trump then chooses not to pursue his enemies, which is a huge gamble for Biden to take.

By January, we’ll know which route Biden chose. If he issues pardons, the reaction on the right will be immediate and loud. If he doesn’t issue pardons, and Trump in fact orders the DOJ to investigate and prosecute, the response will start once the fact of the investigations become public. The response from the left will thus come a little bit later, but it will nonetheless be fierce.

Whichever way it plays out, you can watch with both interest and dread, because you saw it coming.

Mark Herrmann spent 17 years as a partner at a leading international law firm and later oversaw litigation, compliance and employment matters at a large international company. He is the author of The Curmudgeon’s Guide to Practicing Law and Drug and Device Product Liability Litigation Strategy (affiliate links). You can reach him by email at inhouse@abovethelaw.com.

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In the Delaware gun indictment, Judge Maryellen Norieka terminated the case via minute order, while maintaining relative judicial modesty. In contrast, Judge Scarsi, the Trump appointee overseeing the tax case in California, engaged in what can only be described as an act of judicial onanism on the public docket.

“Rather than providing a true and correct copy of the pardon with the notice, Mr. Biden provided a hyperlink to a White House press release presenting a statement by the President regarding the pardon and the purported text of the pardon,” he breathed heavily, adding that “The President’s statement illustrates the reasons for the Court’s disapproval, as representations contained therein stand in tension with the case record.”

If Abbe Lowell had just docketed the pardon itself, certified and in triplicate, Judge Scarsi wouldn’t have been forced to yell at the sitting president. So if you think about it, the defendant was really asking for it!

Judge Scarsi takes great umbrage at the suggestion that this prosecution was politically motivated — something he and Judge Norieka both insisted was impossible with President Biden in charge of the Justice Department. As independent journalist Marcy Wheeler notes, this required wholesale contortion of the record by Scarsi. It also confuses the almost insuperable standard to prove vindictive prosecution with the colloquial and obviously true statement that politics affected this process, which began when Bill Barr tapped David Weiss to investigate Joe Biden and his son and was the subject of sustained pressure by Trump himself and his congressional allies.

Indeed, when the plea deal blew up last summer, the GOP was perfectly willing to take credit for it.

I am glad Hunter Biden’s plea deal blew up.

His original deal was a sweetheart deal that was bad from day one.

I believe there has been so much attention on Joe Biden’s corruption that the DOJ had to reconsider the plea deal and backtrack. pic.twitter.com/SffD7UNyAo

— Senator Ted Cruz (@SenTedCruz) July 27, 2023

But Judge Scarsi wasn’t excited about any of that.

“The Constitution provides the President with broad authority to grant reprieves and pardons for offenses against the United States, U.S. Const. art. II, § 2, cl. 1, but nowhere does the Constitution give the President the authority to rewrite history,” he huffed, as if the president’s ability to say any fool thing he likes in a signing statement is somehow up for judicial consideration.

The court then spent several paragraphs performatively wanking over the fact that the pardon was issued on December 1, for all crimes through December 1, when there were still several hours left in the day. Did this make it a prospective pardon, thus invalidating the entire exercise? Sadly, no.

“Under the canon of constitutional avoidance, the Court declines to interpret the warrant in that manner and instead understands the warrant to pardon conduct through the time of execution on December 1,” Judge Scarsi sighed, wiping his hands on his robe. “To the extent the pardon encompasses prospective conduct, the Court deems the prospective component of the pardon severable from the component that demands the termination of this proceeding.”

Of course, the canon of constitutional avoidance generally leads judges to abstain from opining on issues which are not before them, and no party here challenged the sufficiency of the pardon. But apparently Judge Scarsi could not restrain himself against the powerful urge to spread his seed all over the federal docket.

Having had its way with the defendant one last time, the court zipped back up its judicial breeches, agreed to dismiss the case once a verified copy of the pardon is docketed, and wandered off for a cigarette in the chambers lav.

Liz Dye lives in Baltimore where she produces the Law and Chaos substack and podcast.

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Hunter Biden was convicted on firearms charges in Delaware in June, related to a gun permit from 2018 on which he falsely denied being a habitual drug user. In September, he pled guilty in California to failing to pay his taxes on time between 2016 and 2019. Sentencing was pending in both cases.

In an official statement, his father noted that “the charges in his cases came about only after several of my political opponents in Congress instigated them” and that those opponents openly took “credit for bringing political pressure on the process” that unraveled the plea deal negotiated last summer:

From the day I took office, I said I would not interfere with the Justice Department’s decision-making, and I kept my word even as I have watched my son being selectively, and unfairly, prosecuted. Without aggravating factors like use in a crime, multiple purchases, or buying a weapon as a straw purchaser, people are almost never brought to trial on felony charges solely for how they filled out a gun form. Those who were late paying their taxes because of serious addictions, but paid them back subsequently with interest and penalties, are typically given non-criminal resolutions. It is clear that Hunter was treated differently.

The ten-year period is important, since Trump’s henchmen will soon be controlling the Justice Department, and they’ve made no secret of their intention to try to prosecute the president’s son for violating the Foreign Agents Registration Act. In fact, the plea deal fell apart because Special Counsel David Weiss backed away from a promise that Biden would not be prosecuted for FARA if he pled to the gun and tax charges. Coincidentally, this change of heart came about roughly five minutes after Republicans in Congress complained about the “sweetheart deal.”

Sunday night, Hunter Biden docketed notice of the pardons in Delaware, where he’s charged with lying on a gun permit application, and California, where he’s charged with tax crimes.

“The President’s pardon moots Mr. Biden’s pending and yet to occur sentencing and entry of judgment in this case and requires an automatic dismissal of the Indictment with prejudice,” his lawyer Abbe Lowell wrote, adding that “this Court must dismiss the Indictment against Mr. Biden with prejudice and adjourn all future proceedings in this matter.”

But Weiss, who was appointed by Bill Barr, isn’t ready to give up the ghost just yet. In an opposition filed in California, he argued that “The defendant’s motion should be denied since there is no binding authority on this Court which requires dismissal.”

“As a matter of past-practice in this district, courts do not dismiss indictments when pardons are granted,” Weiss wrote, citing such luminaries as Steve Bannon, Michael Flynn, Joe Arpaio, and Ollie North. “Instead, it has been the practice of this court that once an Executive Grant of Clemency has been filed on the docket, the docket is marked closed, the disposition entry is updated to reflect the executive grant of clemency, and no further action is taken by the Court.”

And although Weiss purported not to have seen the pardon itself (which Lowell inexplicably failed to docket), he took particular umbrage at the suggestion that the prosecution was politically motivated, huffing that “The court similarly found [Biden’s] vindictive prosecution claims unmoored from any evidence or even a coherent theory as to vindictiveness.”

Judge Mark Scarsi of the Central District of California has taken no action, thus far. But in Delaware, Judge Maryellen Noreika said in a minute order that she intends to terminate the proceedings, and instructing the government to say by today if it objects to termination by dismissal. Presumably it does, although no objection has hit the docket as of this writing.

Meanwhile over at Truth Social, the guy who pardoned Vanky’s father-in-law for campaign finance violations and tax evasion and then named him ambassador to France has thoughts.

It’s gonna be a long four years.

Liz Dye lives in Baltimore where she produces the Law and Chaos substack and podcast.

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In a one-page order, the DC Court of Appeals noted that it had ordered him on July 25 “to show cause why reciprocal discipline should not be imposed” after America’s erstwhile Mayor was relieved of his license to practice law in the state of New York. Giuliani was apparently preoccupied stumbling into and out of bankruptcy and generally flopping around the federal docket like a beached orca as he desperately attempts to fend off the $148 million judgment in favor of Ruby Freeman and Shaye Moss, the Atlanta poll workers he defamed. And so Rudy just didn’t both to respond to the show cause order.

Under local precedent, “The imposition of identical discipline when the respondent fails to object should be close to automatic, with minimum review by both the Board and this court.”

“[I]t appearing that respondent has not filed a response, it is ORDERED that Rudolph W. Giuliani is hereby disbarred from the practice of law in the District of Columbia, nunc pro tunc to August 9, 2021,” the three-judge panel wrote yesterday.

It’s an anticlimactic end for the once-storied US Attorney for the Southern District of New York.

Giuliani emerged from failed runs for senate and president with some shred of his dignity intact, and managed to eke out a living endorsing whichever reverse mortgage or gold futures advertisers would have him, before being “rescued” by Trump in his rise to the presidency. Giuliani hoped for a job in the Trump administration, perhaps as secretary of state or attorney general. Those posts never materialized, but his proximity to power did permit Giuliani to make a nice living for the the first three years of the Trump administration whoring himself as a “security consultant” from cushy offices housed inside Greenberg Traurig. That association soured in 2018 after Giuliani admitted on air with Sean Hannity that Cohen had paid hush money to Stormy Daniels and “funneled” the reimbursement through his law firm — something he insisted was perfectly normal and routine. But Rudy was still able to rent himself out to overseas strongmen, and he got to go on TV as the president’s personal lawyer. So he didn’t seem to mind much.

Things really went off the rails in year four when Rudy decided he’d “help” his benefactor by traipsing around Ukraine in pursuit of dirt on Joe Biden and his son, Hunter. After steering Trump into his first impeachment — “Do us a favor, though!” — Giuliani set about laying the seeds for the second as he strove to overturn Biden’s electoral victory.

This finally proved to the seed of his own professional undoing, as Giuliani flogged lies about fraud and pressured elected officials to steal Biden’s electoral votes or try to pass off fraudulent ones. Giuliani’s only outing in court on Trump’s behalf was an ignominious disaster, with the attorney seemingly flummoxed by basic legal questions from US District Judge Matthew Brann.

“Maybe I don’t understand what you mean by strict scrutiny,” he wondered, before deciding that he’d like “the normal one.”

The efforts to overturn democracy garnered him multiple bar complaints. He was suspended in New York in 2021 and permanently disbarred there in July. DC moved to disbar him reciprocally, and after initially resisting, he appears to have simply wandered off.

Ah well, we’ll always have Rudy Coffee, or at least until Freeman and Moss seize it anyway.

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The complaint was a typically Rudy joint. He alleged that Biden had defamed him during a 2020 presidential debate in Tennessee by calling him a “Russian pawn.” He filed it in New Hampshire, the only state with a three-year statute of limitations. His putative lawyer was a guy from Staten Island who used a hotmail address calling himself “Biker451Lou” in his signature block. And in typically Rudy fashion, he appears to have simply slid off the barstool and forgotten all about it.

In Concord, NH, @RudyGiuliani announces he’s going to sue @JoeBiden for calling him a “Russian pawn” during 2020 campaign.@nhgop pic.twitter.com/UBEdA7duVB

— NH Journal (@NewHampJournal) October 4, 2023

Specifically, the president promptly removed the case to federal court on diversity grounds, and then filed a motion to dismiss for lack of personal jurisdiction, because the only way Biden’s comments were “directed” at the state of New Hampshire was that the state’s residents could watch the debate like everyone else on Planet Earth. After which Rudy just … didn’t bother to answer.

Instead he filed a notice in February that he’d declared bankruptcy in a desperate attempt to fend off collection of the $148 million judgment in favor of Ruby Freeman and Shaye Moss, the Atlanta poll workers he accused of stealing Georgia for Biden. (Well, he left that second part out). But, as Biden pointed out, Rudy “did not argue that the bankruptcy affected his obligation to respond to the motion by wholly staying the litigation (which it plainly does not).”

“Accordingly, Plaintiff has waived any objection to the Defendants’ motion to dismiss,” he added.

If the plaintiff objected to this, he failed to mention it to the court, except for three hand-wavey paragraphs in a joint status report in May, where he suggested that the bankruptcy automatically stayed all civil proceedings. In June, Judge Paul Barbadoro put out a minute order telling Rudy that he was “mistaken” that the bankruptcy stayed proceedings filed by the debtor and ordering “America’s Mayor” to respond to the motion to dismiss within three weeks. And still, Giuliani did nothing, even after his bankruptcy case was dismissed for failure to comply with court orders and submit mandatory filings — the man is nothing if not consistent.

On Friday, Judge Baradoro had finally had enough.

“When personal jurisdiction is challenged, the plaintiff must carry the burden of showing that personal jurisdiction is both statutorily authorized and consistent with the constitutional requirements of due process,” he wrote, noting that the plaintiff had not objected to the motion to dismiss. “For the reasons set forth in the defendants’ memorandum, Giuliani has utterly failed to carry this burden.”

The onetime US Attorney for the Southern District of New York couldn’t even prosecute his own defamation case. Rudy stumbles out of New Hampshire worse off than when he started (unless he stiffed his lawyers, which would also be very on brand). He won’t even be there for leaf peeping season.

That’s okay — he’s got important business to handle back in New York.

America stands with Peter Navarro. @RealPNavarro#AmericasMayorLive 🇺🇸 pic.twitter.com/KlImy6plRa

— Rudy W. Giuliani (@RudyGiuliani) September 15, 2024

Liz Dye lives in Baltimore where she produces the Law and Chaos substack and podcast.

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Harris cast the tie-breaking Senate vote in 2022 for legislation that allows Medicare to negotiate drug prices for its more than 60 million beneficiaries. Before that, she was an aggressive regulator of the drug industry as California attorney general.

As president, Trump would likely retain Medicare price negotiations unless the pharmaceutical industry can come up with something more compelling that they’d put on the table, people close to him say. In his first term, he proposed various policies aimed at reducing prescription costs but had limited success with their implementation.

The drug industry could benefit, though, if Trump remains unable to advance such proposals.

“His efforts were largely fragmented and faced resistance from both the industry and lawmakers,” said Sergio Jose Gutierrez, a political strategist who has primarily worked with Democrats in the U.S. “The lack of a cohesive strategy and the limited ability to implement significant changes made his approach less effective compared to what a Harris-Walz administration could offer.”

The industry is increasingly under attack by lawmakers from both parties for drug prices most Americans regard as unreasonable, according to KFF polling, so the election outcome could be pivotal to drug companies’ fortunes. Their predicament is a sharp reversal from years past, when the firms enjoyed a reputation as being almost untouchable. For more than a decade, manufacturers successfully fended off proposals to let Medicare negotiate lower drug prices before losing the battle two years ago.

The shift in their political standing shows up in pharmaceutical companies’ contributions to candidates. An industry that gave three or four times as much to GOP candidates as to Democrats in the 1990s and early 2000s is now hedging its bets. So far in the 2024 cycle, drug companies have given $4.89 million to Democrats and $4.35 million to Republicans, according to OpenSecrets, a nonpartisan research group.

Harris has received $518,571 from the industry and Trump has received $204,748.

At the Democratic National Convention in Chicago last week, Harris and fellow Democrats touted their records on curbing drug prices. Harris supporters point to her past and present.

While she was California’s attorney general, she joined cases that resulted in nearly $7.2 billion (about $22 per person in the U.S.) in fines for drug companies.

Her vote to pass President Joe Biden’s Inflation Reduction Act paved the way not only for Medicare price negotiation but also an annual $2,000 cap on Medicare beneficiaries’ total drug spending and a $35 cap on their monthly insulin supplies.

“In the United States of America, no senior should have to choose between either filling their prescription or paying their rent,” Harris said Aug. 15 in her first joint appearance with Biden since he exited the presidential race.

She has promised to extend both the annual drug spending cap and the insulin price cap to all Americans with insurance, not just those on Medicare, if elected president.

Harris also backed a contentious policy that, in some instances, would empower the federal government to inject more competition into the marketplace by seizing the patents on some high-cost drugs developed with federal funds.

Doug Hart, 77, of Tempe, Arizona, has been spending about $7,000 annually on prescription drugs. A drug he takes to prevent blood clots will cost less under the Medicare price negotiations. The retired labor union president said the decrease will be considerable and it is one reason he backs Harris.

“The Republicans all voted against Medicare negotiation. Harris broke the tie in the Senate to allow it,” said Hart, who is a board member for the Arizona Alliance for Retired Americans, which works to mobilize returned union members and activists on progressive issues.

While Republicans as a party remain more friendly to the pharmaceutical industry, Trump has been willing to challenge GOP orthodoxy by taking action to combat high drug costs.

He sought during his administration to tie drug prices in Medicare to lower international prices, a proposal that the PricewaterhouseCoopers health research institute estimated would cost five drugmakers as much as $500 million a year. What was known as the “most favored nation” interim final rule was blocked because of legal challenges and later rescinded by the Biden administration.

Trump issued a rule setting up a path to import drugs from Canada and other countries, with Florida this year becoming the first state to get federal approval to import some prescriptions from Canada. But the state has been stymied by pushback from Health Canada, the Canadian government department responsible for national health policy.

And on his campaign website, Trump posted a video in which he questioned whether childhood health problems are the result of “overprescription” of medications.

“Too often, our public health establishment is too close to Big Pharma — they make a lot of money, Big Pharma — big corporations, and other special interests, and does not want to ask the tough questions about what is happening to our children’s health,” he said. “If Big Pharma defrauds American patients and taxpayers or puts profits above people, they must be investigated and held accountable.”

Trump hasn’t said much about drug prices in his 2024 campaign, but allies and former advisers say he remains committed to knocking down prescription prices if reelected.

He would likely focus on increasing generic and biosimilar competition, importing drugs made in the U.S. but sold overseas back to the U.S., and capping out-of-pocket insulin costs, according to former Trump administration officials. Other goals may be lowering prices for drugs in the Medicare 340B program, which requires drugmakers to provide outpatient drugs at reduced prices to eligible health organizations that serve lower-income and uninsured patients.

“The No. 1 issue he cared about while I was in the White House, and I continue to hear him talk about, is lowering drug prices,” said Theo Merkel, a senior research fellow at conservative think tanks Paragon Health Institute and the Manhattan Institute. Merkel was also a special assistant in the Trump White House. “I’m confident that will be at the top of the agenda,” he added.

Catherine Hill, a spokesperson for Pharmaceutical Research and Manufacturers of America, or PhRMA, said the industry trade group looks forward to collaborating with any future presidential administration.

She criticized the Biden administration’s plan for Medicare price negotiation as well as Trump’s plan to align U.S. prices with those in foreign countries. This month, the administration announced new, reduced prices for 10 drugs in the program following negotiations between the federal government and drugmakers. The lower costs take effect in 2026.

“Previous price controls adopted by the Biden administration threaten to stifle that innovation,” Hill said. “Undermining intellectual property protections and borrowing other countries’ price controls will further undercut innovation and threaten patients’ access to medicine.”

KFF Health News is a national newsroom that produces in-depth journalism about health issues and is one of the core operating programs at KFF—an independent source of health policy research, polling, and journalism. Learn more about KFF.

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But it’s not just his erstwhile opponent who is losing his shit. The entire Hunter Biden Industrial Complex has now been rendered redundant, and boy are they mad about it. This is particularly hard for a weirdo named Tony Bobulinski, who spent the past four years trying to parlay a brief association with the president’s son into a career as a rightwing media figure.

In October of 2020, after the Wall Street Journal refused to print Bobulinski’s allegations about Joe Biden getting cut in on his son’s business deals in China, Bobulinski told his story to the rightwing news outlet Breitbart. He was then invited to the presidential debate as a guest of Donald Trump, and graduated to being a favorite of House Oversight Chair James Comer, in his four year quest to GIT THEM BIDEN BOYS without shooting off his own, umm, member. (He failed on both counts.)

In April, Bobulinski sued Reps. Dan Goldman and Jamie Raskin, demanding $20 million from each for the grievous harm to his reputation thanks to mockery of him and his testimony. In the Raskin complaint, he alleged that the congressman defamed him by retweeting his own speeches after they were posted by the House Judiciary Committee. Perhaps it’s a commentary on the plaintiff’s estimate of the strength of the suit that he hasn’t yet managed to effect service. Or it could be incompetence.

But the Goldman suit is proceeding in hilariously shambolic fashion before Judge Amy Berman Jackson at the District Court in DC.

Bobulinski complained about tweets from the congressman’s personal and official account in which he claimed Bobulinski’s testimony was bogus.

“Tony Bobulinski has used a Trump campaign-paid lawyer to make false allegations since October 2020,” he tweeted, along with footage of Bobulinski admitting that he’d been in discussions with Mark Meadows during the 2020 presidential campaign.

Tony Bobulinski has used a Trump campaign-paid lawyer to make false allegations since October 2020.

When Cassidy Hutchinson said he met with Mark Meadows with a mask on, he called her a liar.

Then she produced a photo.

Watch how he dissembles in response to the receipt 👇 pic.twitter.com/EazzJ0nW70

— Rep. Dan Goldman (@RepDanGoldman) March 21, 2024

Bobulinski is represented by Jesse Binnall, a “Kraken” alum who does, indeed, represent Donald Trump. It’s not clear whether the congressman was suggesting that Binnall is being paid by Trump to represent Bobulinski, which Bobulinski denies. Nor is it obvious that saying “he has a lawyer paid for by Trump’s PAC” would be defamatory, even if false — half the Republicans in DC are getting legal assistance from Trump’s PACs!

Nonetheless, Bobulinski insists that his reputation has been grievously damaged by the insinuation that he is a shill for the Trump campaign:

Defendant’s omission of this context left a reasonable viewer with the impression that President Trump or his campaign is paying for Mr. Bobulinski’s legal fees, and ultimately, his testimony. It also left viewers to falsely believe that Mr. Bobulinski was testifying for political purposes, as opposed to his true motivation, which has been to tell the truth about the Biden Family’s enterprise of selling influence to foreign actors. Mr. Bobulinski felt compelled to do so, as was his civic duty, for the sake of disclosure to, and preservation of, the Republic.

Citing the Speech or Debate Clause, Rep. Goldman immediately moved to substitute the government as defendant under the Federal Tort Claims Act, and then to dismiss the case because the plaintiff had failed to serve the Justice Department within ninety days. (Do these guys not know any process servers in the DMV?)

Goldman also moved to dismiss on the basis of sovereign immunity, noting that the allegedly defamatory comments pertained to Bobulinski’s testimony before the House Oversight Committee, on which Goldman and Raskin both sit.

Bobulinski responded with an amended complaint in which he made zero new arguments, but amped up the rhetoric to 11.

“In his ~ 18 months as a freshman member of Congress, Defendant has conducted himself shamefully under the misguided belief that he is unaccountable for the real impact of his inflammatory and maliciously defamatory statements that are not only well outside the scope of his employment, but also are prone to incite violence and recklessly endanger the targets of his statements,” Bobulinski froths, before suggesting that Goldman “may well have precipitated the assassination attempt on President Trump’s life in Butler, Pennsylvania a few weeks ago.”

Bobulinski professes to be in fear for his life: “Protected by a SEAL Team at great expense, which is required due to the lies published by Defendant, Mr. Bobulinski and his family have also received death threats.”

If we didn’t know better, we’d suspect that Bobulinski is making one more desperate attempt to hack his way back into the news cycle one more time before everyone forgets who Hunter Biden is and Judge Jackson yeets this turkey of a case into the sun.

Liz Dye lives in Baltimore where she produces the Law and Chaos substack and podcast.

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I basically don’t know anybody who says that Trump is a fine upstanding man who deserves to be president of the United States. I hear that those people exist, but I’m a pointy-headed intellectual — I don’t live in the same town, or travel in the same social circles, as those people. I do know people who defend voting for Trump; I just don’t know anyone who affirmatively believes that, in a sane world, Trump would be the preferred Republican candidate.

My Trump-supporting friends say that they could never vote for a Democrat. They concede that Trump is an unhinged narcissist, and they sure wish the Republicans had chosen a different candidate, but America will be destroyed if a Democrat gets into the White House. These diehard Republican friends aren’t going to waste their vote on a third-party candidate who can never win, so they’ll hold their nose and vote for Trump.

I don’t agree with that point of view, but I can at least understand it.

I’m now asking those people to answer the following questions. (Well, I’m not really asking those people to answer these questions. If I did, I’d lose my old friends. Instead, I simply avoid talking politics with my Trump-supporting friends. But perhaps some of those Trump supporters will see this column and turn my questions over in their minds.)

Here’s question 1:

Am I correct that your thinking about January 6 has evolved from blaming Antifa, to blaming the FBI, to deciding that January 6 wasn’t so bad, to thinking that it was in fact the members of the January 6 Committee who should be imprisoned, to thinking that the rioters on January 6 were actually patriots who should be pardoned?

Whether or not that’s your thinking, do you concede that this is how Trump’s justifications have evolved?

Don’t those evolving explanations give you pause?

Here’s question 2:

Suppose some future one-term president commits felonies (for which he can appropriately be prosecuted). Because that guy — let’s call him President A — served only one term, President A is eligible to run for president again four years after he lost. What should the president who succeeded President A — call him President B — do about President A’s crimes?

Should President B do everything possible to suppress prosecutions of President A because any prosecution is too politically fraught?

If that’s your position, then you’re telling me that the felonies President A committed should go unpunished. Is that true for all felonies that President A committed? Suppose President A incited an insurrection? Or mishandled classified documents? Under what circumstances should those crimes be prosecuted?

(No, no, no! Don’t sputter that Trump didn’t do those things, and it’s all a Democratic witch hunt. I’m not talking about Trump. I’m asking an entirely hypothetical question about some hypothetical future president. And the future president in fact committed the crimes that I’m talking about. Should President B suppress those prosecutions?)

Let’s think about the other side of the coin. Perhaps President B should remain independent of the criminal justice system, letting prosecutors decide on their own whether to proceed. If a prosecution occurred, that would intensify partisanship in the country and might strengthen President A’s prospects for reelection. Should President B nonetheless let prosecutors proceed, if the prosecutors thought the evidence required it?

(No, no, no! Don’t sputter that Biden somehow influenced prosecutors and caused them to pursue Trump. I’m not talking about Trump, and I’m not talking about Biden. I’m asking an entirely hypothetical question about some future hypothetical president. Should President B stay out of the process and let prosecutors move forward?)

Here’s my third question for my Trump-supporting friends. (Yeah, yeah: I’ve posed only two questions so far. The follow-up issues were simply sub-questions. Ask anyone who’s ever drafted interrogatories to explain it to you.)

A grand jury indicts a defendant for multiple felonies. A petit jury convicts the defendant of those crimes. Under what circumstances are you convinced that the jury verdict was wrong?

Are you convinced the verdict was wrong if the defendant himself denies that he committed the crimes? (That is, of course, true of most convicted felons. Is every jury in every criminal case in America wrong?)

If the defendant’s own protestations don’t convince you that the jury verdict was wrong, how about commentators on television or social media? If some pundit said that the pundit thought the defendant wasn’t guilty, would you trust the pundit over the jury verdict?

If neither of those things convince you the jury verdict was wrong, how about your own common sense? Do you trust your own common sense — “I know deep in my gut that he didn’t do it!” — more than the verdict reached by 12 people who actually heard evidence over the course of a couple of weeks?

Question 4:

Suppose there were photographs of classified government documents that a former president had left in public locations in a country club. Suppose the Department of Justice filed sworn statement saying that the government had asked the former president to return those documents, and the former president had refused. Suppose the former president didn’t deny any of this, but instead insisted that he had declassified the documents in his own mind, or the documents were automatically converted into personal property because the president had retained the documents after he left the presidency. On those facts, should prosecutors move ahead with criminal charges, or do you find nothing suspicious (or worth prosecuting) about this?

Question 5:

Didn’t Joe Biden just (more or less) voluntarily yield power, when he didn’t have to, for the sake of his party and country? Didn’t Trump resist yielding power, even after he’d been voted out of office?

Question 6:

How can you be such a damned fool?

See? I told you I’d lose friends over this.

Mark Herrmann spent 17 years as a partner at a leading international law firm and later oversaw litigation, compliance and employment matters at a large international company. He is the author of The Curmudgeon’s Guide to Practicing Law and Drug and Device Product Liability Litigation Strategy (affiliate links). You can reach him by email at inhouse@abovethelaw.com.

Lambert’s client is Patrick Byrne, the founder of Overstock.com and former paramour of Russian spy Maria Buttina. Since 2020, Byrne has bankrolled efforts to overturn President Biden’s electoral victory, spouting ever-wackier conspiracy theories about how the fraud was engineered. Last Thursday he held forth on a Twitter livestream where he claimed to have hacked the Venezuelan government:

What I’ve really been doing for the last two years abroad is I’ve been hacking the government of Venezuela and I have it all at this point. I have everything. And it’s kind of funny, somewhere along the way, somebody told me — I got kicked out. I was operating in a foreign countries and I hired a bunch of professional hackers and we hacked the government of Venezuela, and I have everything.

Dominion Voting Systems is suing Byrne for defamation, along with Mike Lindell, Sidney Powell, and Rudy Giuliani. A freethinker like Byrne was never going to be content with a normie lawyer, and so in March he swapped out Dickinson Wright’s Robert Driscoll for Lambert, a fellow traveller in conspiracy land.

Lambert is facing multiple indictments in her native Michigan for election-related crimes, and her first action after (or perhaps before) entering her appearance in Byrne’s case in DC was to hand over protected discovery to her election-denying allies, specifically a “constitutional sheriff” from rural Michigan named Dar Leaf.

What followed has been a bizarre dance between Lambert, Magistrate Judge Moxila Upadhyaya, and Susman Godfrey’s Davida Brooks, who represents Dominion and is now having to deal with opposing counsel who is nuttier than squirrel shit.

Lambert insists that she has the right to alert law enforcement about “crimes” revealed in protected discovery — by which she means emails in a language other than English. Judge Upadhyaya told Lambert to knock it off, and Brooks moved to disqualify Lambert, arguing that the lawyer and her client could never be trusted to appropriately handle confidential discovery, and would just come up with more creative ways to leak it.

Lambert responded by seemingly engineering a subpoena in a Colorado criminal case for discovery materials in the Dominion civil matter. The Colorado case involves Tina Peters, a former election clerk who is charged in a plot to sneak one of Byrne’s operatives in to image a Dominion machine using a stolen government ID. During his recent Twitter rant, Byrne said “If you have any brains at all, which I’m not sure they do, they should be throwing in the towel and just surrendering and dropping this case against Tina because those who don’t are going to end up facing a piano wire and blowtorch before this is over. So I know that’s probably another felony, but f— it — threatening them like that — but there we are.”

Probably!

The clear terms of the protective order required Lambert to contest the Peters subpoena. But she refused to say whether she had done so, or if she’d taken advantage of the brief period between when the subpoena was served and when it was quashed to give Peters’ counsel access to the Dominion discovery. Citing attorney-client privilege, Lambert refused to say if she disclosed the company’s internal emails, but assured the court that Peters’s attorney John Case signed a confidentiality agreement, so it’s totes cool.

Last week, Lambert moved to file a surreply to Dominion’s response to the motion to enforce the protective order. She cited no reason other than her own busy schedule, but did attest that she’d “discussed the anticipated motion with opposing counsel in a good-faith effort to determine whether there is an opposition to the relief sought,” and Dominion opposed. Judge Upadhyaya reluctantly granted Lambert permission to file a surreply by Friday, but on Friday, Lambert simply docketed a request for an extension, noting that “her appearance is required at multiple depositions this week.”

But Davida Brook did get her homework in on time, and it was WILD.

The supplemental motion in support of Dominion’s bid to enforce its protective order and get Lambert off the case quoted Byrne’s Twitter rant at length, including a passage where he called one Dominion employee “a Cuban intelligence officer.” Dominion claims that Byrne and Lambert regularly work to intimidate witnesses, with Lambert’s behavior veering into the bizarre.

In a section captioned “Improper Activity at Recent Deposition,” they write:

In depositions of Dominion employees, Ms. Lambert is consistently disruptive. Instead of appearing at the beginning, Ms. Lambert joins each deposition by zoom, at some random point, without prior notice, and without announcing herself. She keeps her camera turned off even while questioning the witness. During last Friday’s deposition, Ms. Lambert went further.

Defendants were deposing a Dominion employee, a United States citizen who happens to have been born and raised in a foreign country. As usual, Ms. Lambert was not present when the deposition began. Twenty minutes in, she appeared on the zoom, camera off, with the screen name “Prosecutor.” Dominion’s counsel refused to re-start the deposition until Ms. Lambert, who is not a prosecutor, changed her screen name. Although Ms. Lambert initially claimed she did not know how to, not surprisingly, Ms. Lambert was able to change her screen name quickly once she realized the deposition would not move forward until she did.

And while her client was copping to felonies and threatening bodily harm to his enemies, Lambert was making what appears to be a blatant misrepresentation to the court. Because she had not met and conferred with Dominion, as she’d attested in her motion to file a surreply.

“I have canvassed our team and it appears that you did not confer with anyone for Dominion, much less get a response,” Susman lawyer Jonathan Ross wrote on Friday night. “Please correct the record with the Court over the weekend so we do not have to on Monday.”

Lambert replied shortly after: “I apologize. I was traveling with bad Internet and my email to your office did not go through.” But when asked for a screenshot of the purported email, which would not have represented conferral even if sent, Lambert never responded. And when informed that Dominion intended to tell Judge Upadhyaya about the discrepacy, the “Prosecutor” fired off a completely manic surreply in which she repeated the claim about the unsent email and accused opposing counsel of “seek[ing] to invade attorney-client privilege in an effort to reign [sic] in these privileged and confidential matters under this Court’s protective order.”

Yesterday Judge Upadhyaya reiterated once again that discovery materials are not to be distributed to non-parties.

Even though it appears that the Colorado court has granted motions to quash the subpoenas at issue, this Court will make abundantly clear that Defendant and his Counsel are expressly prohibited from sharing Dominion’s discovery anywhere outside this case absent express Court order. This order applies to ALL of the discovery that Plaintiffs have produced in this litigation. It likewise applies to ALL of Defendant Byrne’s counsel who have gained access to Plaintiffs’ discovery, including Ms. Lambert and Mr. John Case.

Well! Surely that will be the end of the matter and there will be no further spillage in this case.

LOL.

Liz Dye lives in Baltimore where she produces the Law and Chaos substack and podcast.

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A small group of Republican-led states want the US Supreme Court to step in and block President Joe Biden’s second attempt to forgive billions of dollars in student loan debt.

In an emergency request addressed to Justice Neil Gorsuch on Tuesday, Texas, South Carolina, and Alaska asked the court to toss out a lower court order that paves the way for the Education Department to lower loan payments along with canceling student debt under a new rule beginning Aug. 1.

As the justice assigned to the US Court of Appeals for the Tenth Circuit, which issued the order the states are looking to have vacated, Gorsuch can either act on the emergency request alone or refer the matter to the full court for its review.

If this makes its way to the Supreme Court, it is fair to assume that it will go the way of the HEROES Act. Whether it takes ignoring congressional intent in Sackett, the intent of the Founding Fathers in Trump v. USA, or ignoring if there’s an actual justiciable issue like they did in 303 Creative LLC, the six Republicans of our high court won’t let anything get in the way of legitimizing whatever policy answers right-wingers bring to their doorstep.

Was nice while it lasted.

States Ask High Court to Stop Biden’s Student Debt Relief Plan [Bloomberg Law]

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Let’s start with the easy part: Trump has been fuming on the campaign trail that he’s your retribution and that he will order the Department of Justice to prosecute Biden after Trump wins the election.

That’s now impossible. Biden has absolute immunity for his core constitutional actions and, at least, presumptive immunity for all of his official conduct. Everything that seemingly outrages Trump about Biden — He’s weaponized the Justice Department! He’s opened up the border! — falls under the rubric of either “core” or “official” presidential conduct. Biden has done nothing in his unofficial capacity that warrants imprisonment.

Sorry, Donald: You’ll have to take that riff out of your stump speech. You won’t be able to prosecute Biden if you win the election.

But it gets better: If Biden’s clever, he can use the Supreme Court’s decision to ensure that he wins the upcoming election.

Directing the actions of law enforcement is plainly a core constitutional authority of the president. Biden would thus be absolutely immune from criminal liability for anything that he did in that sphere.

So be clever: Win the election!

Direct the Department of Justice to arrest all known Trump supporters in battleground states on November 4, 2024 — the day before Election Day. Tell those law enforcement officers that they’re prohibited from bringing the tens of thousands of suspects to court for probable cause hearings — which might allow those folks to be released from jail — until the morning of November 6.

Presto! Tens of thousands of Trump supporters would be imprisoned, and thus unable to vote, on Election Day.

All these folks would be released the day after the election, of course, because they hadn’t done anything wrong. But by then the damage would have been done: Biden would have been reelected. And, when Biden ultimately left the presidency, he’d be absolutely immune from criminal prosecution because he’d done wrong, if at all, only in the exercise of his core constitutional powers.

Biden shouldn’t announce his plans in advance, of course: If warned in advance, early voting, or voting by mail, might permit some of the Trump supporters to cast their ballots before they were imprisoned. Or the Trump supporters might evade arrest until after Election Day.

So just be quiet.

Arrest the lot of them the day before the election. Feel confident that you’ll both win reelection and be immune from prosecution for anything about this that sounds suspicious.

It’s almost biblical, Supreme Court: Sow the wind, and reap the hurricane.

Mark Herrmann spent 17 years as a partner at a leading international law firm and later oversaw litigation, compliance and employment matters at a large international company. He is the author of The Curmudgeon’s Guide to Practicing Law and Drug and Device Product Liability Litigation Strategy (affiliate links). You can reach him by email at inhouse@abovethelaw.com.

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In a Sunday ruling, the 10th Circuit U.S. Court of Appeals granted the Biden administration’s request to stay an order from last week that temporarily blocked a provision of its Saving on a Valuable Education, or SAVE, plan.

The decision is a major win for Biden, experts say. The SAVE plan was his biggest accomplishment to date in delivering relief to student loan borrowers. So far, around 8 million borrowers have signed up for the new income-driven repayment plan, according to the White House.

Make sure to check your accounts, do your paperwork, whatever it takes to make the most of this stay while you can. The money you save with the SAVE plan is money that could go toward your rent and, given Grants Pass, you really don’t want to be homeless right now.

Biden Student Loan Repayment Plan To Resume Amid Legal Challenges, Federal Appeals Court Rules [CNBC]

Chris Williams became a social media manager and assistant editor for Above the Law in June 2021. Prior to joining the staff, he moonlighted as a minor Memelord™ in the Facebook group Law School Memes for Edgy T14s. He endured Missouri long enough to graduate from Washington University in St. Louis School of Law. He is a former boatbuilder who cannot swim, a published author on critical race theory, philosophy, and humor, and has a love for cycling that occasionally annoys his peers. You can reach him by email at cwilliams@abovethelaw.com and by tweet at @WritesForRent.

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SAVE is an income-based student loan repayment plan similar to prior plans like Income Contingent Repayment plan, Income Based Repayment, Pay As You Earn, or the Revised Pay As You Earn plans. But the monthly payment amount under SAVE is likely to be lower than the other plans because the income exemption has been increased to 225% of the federal poverty line as opposed to 150% on the other plans.

This means that if a borrower’s household income is under 225% of the federal poverty line, he or she will not have to make any monthly payments. Any income above the 225% will be considered discretionary income and between 5% to 10% of that amount (divided by 12 months) will be the monthly amount due.

SAVE is available only for federal student loans. Private loans do not qualify.

A new feature of SAVE is the cap on interest accrual. If the monthly payment described above (if any) is not enough to cover the month’s accrued interest, then the remaining accrued interest will be forgiven. This will ensure that borrowers will not see their balance increase substantially so long as they make the requisite loan payments.

SAVE also excludes spousal income from the borrower’s loan payment calculation so long as they file separately. Those who already filed joint tax returns cannot amend them so that each spouse can file separately. In a previous column, I wrote about whether it is worth it to file returns separately for student loan payment purposes.

Next month, additional benefits will be available to borrowers. Borrowers holding only undergraduate loans will pay only 5% of their discretionary income toward their loans. Borrowers who have undergraduate and graduate loans will pay a weighted average of between 5% and 10% of their income based on the original principal balances of their loans taken to attend school.

Also, borrowers who have paid for many years will be eligible for loan forgiveness even if they were in a standard repayment plan in the past. For those with only undergraduate loans, the repayment term cap is 20 years or 240 monthly payments. For those with a mixture of graduate and undergraduate loans (or only graduate loans), the repayment term cap is 25 years (300 monthly payments). This means that, depending on which of the two types of loans you have, the repayment term won’t increase beyond that 20- or 25-year cap, no matter how much money is borrowed.

Those holding commercially held Federal Family Education Loans (FFEL) are also eligible for the SAVE program although they must first convert their loans to federal direct loans. They must consolidate their loans before July 1, 2024, in order to have their past payments apply retroactively to determine whether they qualify for early loan forgiveness.

Lastly, those who are enrolled in the SAVE program will not have to make their monthly payment in July while the Department of Education finalizes how to calculate the repayment program.

So is it worth it to participate in the SAVE program? It is for most people already in an income-based repayment program. However, people with graduate loans enrolled in the Pay As You Earn program who are close to finishing the 20-year repayment period should not enroll in the SAVE program because it will add another five years of payments.

Also, people with high incomes and low balances should not enroll in SAVE as well because they may pay a higher monthly payment compared to a standard repayment plan. But it may be possible to stay in a standard repayment plan and then convert to SAVE a few months before the requisite 20- to 25-year repayment term has been reached.

Also, court challenges and the upcoming election may threaten the viability of the SAVE program. Lawsuits have been filed by Republican-led states challenging the program. A week ago, a federal judge ruled that three states — Alaska, South Carolina, and Texas — have standing to challenge the SAVE program because these states would be harmed due to the SAVE program. Specifically, because these states would lose revenue if borrowers in their state converted their FFEL loans to direct loans.

A second lawsuit was filed in Missouri by Republican-led states requesting a preliminary injunction blocking implementation of the SAVE program. If they succeed, the SAVE program will be closed to new applications although it is believed that those who are in the SAVE program can stay in the program.

Lastly, the result of the presidential election will influence the future of SAVE. As of the date of publication, Donald Trump seems to have a slight lead in national polls and in the battleground states. The winner will serve his second and final term in office.

If Trump wins, the chances of student loan forgiveness are slim and he will likely close the SAVE program soon after he takes office. Furthermore, the Department of Education led by the Trump’s appointed Secretary will likely issue rules and regulations that will make it more difficult to obtain student loan forgiveness.

If Biden wins, he is likely to continue the SAVE program. But given his history of ignoring student loan issues until it is politically expedient, he is likely to either put things on hold until at least the midterm elections, or compromise with Republicans to pass a higher education reform bill and end the lawsuits challenging the SAVE program.

The SAVE program is the most generous income-based repayment program to date as it will forgive some interest accrual and provide lower monthly payments compared to its predecessors. Those who will benefit should apply as soon as possible because it may not be available in the future.

Steven Chung is a tax attorney in Los Angeles, California. He helps people with basic tax planning and resolve tax disputes. He is also sympathetic to people with large student loans. He can be reached via email at stevenchungatl@gmail.com. Or you can connect with him on Twitter (@stevenchung) and connect with him on LinkedIn.

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All that being said, gains in the equities markets are easily measured and are objective. This makes stock market performance an attractive metric when it comes to gauging a president’s economic capabilities.

Donald Trump has long been aware of the persuasiveness of stock market returns. Before he was kicked off Twitter for using it to further radicalize his supporters who attacked the U.S. Capitol, Trump tweeted dozens of times to claim credit for the stock market’s performance during his tenure.

Of course, as a concept, “nuance” is as foreign to Trump as “exercise” or “laughter.” When the stock market was doing quite well early in his term, Trump failed to point out that it had done equally as well or better under the administrations of recent Democratic presidents. As he presided over a series of stock market crashes of varying severity in 2018, 2019, and 2020, Trump fell silent on the issue.

With stocks hitting new records once again, Trump has now turned to his Truth Social platform (part of a publicly traded company whose own stock price has cratered) to try to claim personal credit for stock market gains more than three years into Biden’s term. Trump also recently tried implying that the stock market doesn’t matter so much after all.

In contrast to Trump, Joe Biden, after he was elected, studiously avoided statements about stock performance, even as the stock market notched 33 record highs during the first six months of his presidency (Trump had wrongly predicted a stock market collapse when Biden took office). The first 100 days of the Biden administration were the strongest for the stock market of any president for at least the last 75 years.

As it does, the stock market dipped, and recovered, and surged numerous times as Biden’s presidency really got underway. The first half of 2024, however, has been particularly impressive. Stock market records have been repeatedly smashed.

In early February, for instance, the S&P 500 finished a trading day above 5,000 for the first time ever. Other stock indexes soon followed suit.

A few weeks after the S&P 500’s milestone, the Dow Jones Industrial Average surmounted a record-high 40,000 points. Driven in part by the strong performance of chipmaker Nvidia, the Nasdaq breached 17,000 for the first time on May 28. Whichever major stock index you want to look at, new records, as well as big, round numbers, have been plentiful.

This time, the Biden campaign, if not the man himself, appears to have gotten over stock market shyness.

On the day the Dow crossed 40,000, Biden’s campaign communication director used the occasion to contrast his boss’s record on the stock market with that of Donald Trump (when the Dow hit 30,000 late in Trump’s term, Trump held a White House press conference to tout the achievement). With regard to the Dow passing the 40,000 point threshold, the White House press secretary got in a few words on the new record, as did White House social media accounts and Biden campaign press releases.

Biden has remained reticent in directly addressing the stock market himself. He previously noted its many shortcomings as an indicator of broader economic health, and seems to have been burned by temporary market downturns following the few occasions he’s personally commented on stock performance in the past.

But what does Biden have to lose here? I don’t need to be a pollster to state with some confidence that there are approximately zero voters out there who are committed to voting for Biden only so long as he remains silent about record stock market highs.

Biden is not getting any credit for keeping quiet when the stock market performs well. With perceptions of the economy being one of Biden’s greatest political vulnerabilities, it is difficult to imagine that highlighting positive aspects of the economy could do anything but help his campaign.

The stock market has pulled back from some of these recent records, and there will obviously be many more ebbs and flows before the November election. But the Biden campaign has finally broken its silence on solid stock performance: This is one Trump tactic the Biden team can’t afford to ignore any longer.

Jonathan Wolf is a civil litigator and author of Your Debt-Free JD (affiliate link). He has taught legal writing, written for a wide variety of publications, and made it both his business and his pleasure to be financially and scientifically literate. Any views he expresses are probably pure gold, but are nonetheless solely his own and should not be attributed to any organization with which he is affiliated. He wouldn’t want to share the credit anyway. He can be reached at jon_wolf@hotmail.com.

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Last month, in spite of the uptick in dealmaking, we expressed a bit of bearishness about the prospects for major mergers given the Biden administration’s growing opposition to them. Well, about that (and, indeed, more on the White House’s opposition later): Takeovers worth at least $10 billion more than doubled in the first quarter, including last week’s announcement that Home Depot would pay $18.25 billion for materials provider SRS Distribution, and Apollo Global Management’s $11 billion offer—which is far from certain to be accepted—for Paramount Global’s studio division.

“History shows we are in the early innings of a cyclical M&A rally,” Goldman Sachs’ Andre Kelleners told The Wall Street Journal. And the early days of the second quarter shows no sign that it’s slowing, and indeed quite the opposite: private-equity firm Silver Lake is taking talent agency Endeavor Group Holdings private at a $13 billion valuation. There are plenty of slightly smaller deals getting done, as well. Total dealmaking in the first quarter was $725 billion, a 24% jump from last year (including Apollo’s $8 billion deal for Credit Suisse’s securitized products group). Oilfield services company SLB kept the energy M&A space hot with a $7.75 billion bid for competitor ChampionX. Across the pond, Swisscom is paying $8.7 billion for Vodafone’s Italian business and actor Ryan Reynolds’ payment processor Nuvei will go private in a $6.3 billion deal with p.e. shop Advent International.

“Mega-deals are thriving,” Citi’s Tyler Dickson says, and law firms are staffing up for them: lateral partner hiring by the biggest firms, especially among corporate lawyers, was up about 20% in the first two months of 2024. And there should be plenty for them to do: clothing maker Gildan Activewear, boasting a roughly $6 billion market cap, is on the block; the Carlyle Group has cast its net for a stake in Thyssenkrupp’s marine unit and Unilever plans to spin off its Ben & Jerry’s ice-cream business. Medical-device maker Masimo is reportedly looking for a joint-venture partner with whom to split off its consumer side (an activist hedge fund—about which more later—is launching a proxy battle anyway), and WeWork co-founder Adam Neumann has offered $500 million for his former company. And, of course, there’s the prospect of a mega-mega deal, one that at its owner’s current valuation would be bigger than all of the first quarter’s mega-deals combined: that for TikTok, which depending on what the Senate and China do faces a possible ban in the U.S. if it’s not sold, possibly to former Treasury Secretary Steve Mnuchin, who doesn’t seem to be on any shortlists for his old job should his former boss get his old job back in January.

Of course, the surge in big deals is uneven, and one place where they aren’t thriving is in TikTok’s current home region of Asia-Pacific, where M&A fell 28% in the first quarter. The malaise is matched on China’s stock markets, where traders are having to make due with bubble-tea debuts as two more major initial public offerings have been pulled in recent weeks.

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One must go all the way back to 2008, however, to find the origins of the GOP mantra, “Drill, baby, drill.” It seems the phrase was coined by ex-Republican National Committee Chairman Michael Steele for the 2008 party convention. It was later popularized by 2008 vice presidential candidate Sarah Palin (who was probably more famous for, “I can see Russia from my house,” although it was Tina Fey spoofing her on SNL who uttered this memorable paraphrasing).

We are well into the second decade of Republicans repeating their “Drill, baby, drill” slogan. As professional defendant Donald Trump runs for president yet again in 2024, he is still using the phrase, and, of course, kind of claiming he invented it even though he very much did not.

Hold your horsepower though: some of you may remember that that big orange lunatic was already president, and had four years to implement his supposed drilling agenda. Did he follow through?

In a very out-of-character maneuver, sort of! The U.S. did indeed become the world’s top crude oil producer in 2018 during Trump’s presidential term. Domestic oil production went on to reach a record high in 2019.

Of course, Trump can’t legitimately take much credit for that. From 2009 through 2019, annual oil production went up nearly every year, mostly thanks to increasingly cost-effective drilling technology. Production also cratered in 2020 during Trump’s tenure, primarily because of the effects of the COVID-19 pandemic and falling demand. Domestic production dropped again in 2021, even as in both 2020 and 2021 the United States still pumped more oil than any other country in the world.

So, fine, maybe a president does not have very much direct control over oil output compared to technological advances and global market forces. Surely, however, there was a lot going on behind the scenes with the “Drill, baby, drill” president — indirect policy decisions which tangibly helped boost U.S. oil production, perhaps?

Well, if so, it turns out Trump cannot hold a candle to whatever Joe Biden is doing (though, please, for the love of God, ask the man who thinks maybe we should inject bleach into us to keep his candle as far away as possible from America’s massive ocean of crude oil). With an average of 12.9 million barrels produced per day in 2023, the U.S. shattered the previous oil production record of 12.3 million barrels per day set in 2019.

Early signs point to even more crude surging to the surface in 2024, with production in December 2023 reaching a monthly record high at over 13.3 million barrels per day. Growth in U.S. oil production is projected to slow somewhat in 2024 and into 2025, but when you’re growing from what is already a record high, any growth is going to set even more new records.

There are a handful of things an American president can do to tinker with oil production (thankfully starting a new war in the Middle East no longer seems to be one of them). For instance, a president can approve well permits for oil and gas drilling on federal land. By that measure, Biden has approved nearly 50% more such permits than Trump did in his first three years.

Really, though, how much oil gets drilled is a lot more about how much petroleum we are all using than about whatever the president is doing. If you want to dispense blame or claim credit, depending on your perspective, for the recent surge in U.S. oil production, the best place to look is in the mirror.

In the meantime, recognize that Trump saying, “Drill, baby, drill,” is just another small addition to the constant gusher of lies erupting from his mouth. Trump both had less domestic oil production during his term than has Biden, and demonstrably did less to promote oil production on federal lands during his term than has Biden. Stick that in your tailpipe and smoke it.

Jonathan Wolf is a civil litigator and author of Your Debt-Free JD (affiliate link). He has taught legal writing, written for a wide variety of publications, and made it both his business and his pleasure to be financially and scientifically literate. Any views he expresses are probably pure gold, but are nonetheless solely his own and should not be attributed to any organization with which he is affiliated. He wouldn’t want to share the credit anyway. He can be reached at jon_wolf@hotmail.com.

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Arguably, any of these hurdles could have been expected. One that definitely should have been expected, but apparently wasn’t, was the fact that two of Chevron’s biggest rivals, ExxonMobil and China’s CNOOC, had an effective veto on the merger. Both companies hold rights of first refusal to Hess’ 30% stake the aforementioned oil field off the Guyanese coast—and if they don’t give them up, well, no deal.

The hedge funds—including big ones like Balyasny Asset Management, Millennium Management and Pentwater Capital Management—that bought up some one-eighth of Hess shares last year don’t seem particularly bothered, even though they don’t actually know what’s in the fucking contract in question.

“I am not denying that this is a fly in the ointment,” said Roy Behren, co-chief investment officer at Westchester Capital Management, one of the institutional investors with a significant position in Hess’s shares. “But despite the noise surrounding this and the Venezuela situation, we still believe the deal is more likely to be completed than not….”

Brett Buckley, an event-driven strategist at Wallachbeth Capital, called it a “high-consequence, low-probability event…”

“These disputes can arise during transactions like this,” he said. “It should be amicably resolved by the relevant parties.”

Well, Brett, one of those relevant parties hasn’t gotten your memo, nor Chevron’s one calling the contractual right of first refusal not applicable.

Exxon filed for arbitration on Wednesday to retain preemption rights in the Guyana oil field…. “We owe it to our investors and partners to consider our preemption rights in place under our Joint Operating Agreement to ensure we preserve our right to realize the significant value we’ve created and are entitled to in the Guyana asset,” Exxon said in a statement.

Hedge Funds Stake Billions on Hess Deal Sidestepping Exxon Claim [Bloomberg via Yahoo!]

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The Biden administration released proposed guidelines last week that will extend debt relief to borrowers with federal student loans who are facing financial hardship that impairs ability to pay.

The plan includes automatic relief for borrowers likely to be in default in two years, based on information already known to the U.S. Department of Education, according to a Feb. 15 press release. Others may obtain relief through an application.

The amount waived could include the entire balance of the loan.

Considering that about 80% of Americans are living paycheck to paycheck, millions of people could benefit from the “facing financial hardship” verbiage. While it is great that lawyers working in public service are getting some serious relief, they aren’t the only ones who need some help. As criminal liability for not having a roof over your head ramps up nationwide, forgiving student loan debt could free up money that would be better suited for paying rent — imagine the Denver project nationwide.

Wide student loan forgiveness would also be a good optic maneuver; it positions Biden to look benevolent on a debt that most debtors would rather strike than pay back. Much needed PR when not even 40% of the population thinks you’re doing a good job.

Biden Administration Releases Proposed Guidelines For Student Loan Hardship [ABA Journal]

Chris Williams became a social media manager and assistant editor for Above the Law in June 2021. Prior to joining the staff, he moonlighted as a minor Memelord™ in the Facebook group Law School Memes for Edgy T14s. He endured Missouri long enough to graduate from Washington University in St. Louis School of Law. He is a former boatbuilder who cannot swim, a published author on critical race theory, philosophy, and humor, and has a love for cycling that occasionally annoys his peers. You can reach him by email at cwilliams@abovethelaw.com and by tweet at @WritesForRent.

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And boy has Trump told some whoppers. In terms of severity, something like claiming that a violent mob of his supporters bent on overthrowing democracy were “patriotic and peaceful” is probably right up there at the top.

Yet, of Trump’s many dumb lies, one stands alone in how much purchase it has found even beyond the motley ranks of his most fervent supporters: that he is far better than any Democratic challenger at promoting economic growth.

Trump repeatedly promised that his policies would result in annual economic growth of more than 3%. They didn’t.

During the first three years of the Trump presidency, before the pandemic hit, the average quarterly economic growth rate was 2.5%. This was almost exactly the same rate of growth during Obama’s second term, when the quarterly economic growth rate averaged 2.4%.

Overall the gross domestic product grew by only 1.6% over the course of Trump’s entire term. This was the lowest rate of growth under any president since Herbert Hoover (although it’s not entirely fair to blame the economic impacts of the pandemic on Trump).

There were a handful of quarters in which the growth rate did temporarily exceed 3% under Trump, and one really anomalous quarter during which the GDP clawed back the pandemic-related drop from the previous quarter. But there was never the sustained growth of “much higher than 3%” that Trump promised on the campaign trail, and it certainly was not “the greatest economy in the history of our country” as Trump has repeatedly claimed.

Meanwhile, what is the latest quarterly growth rate under the Joe Biden presidency? A blockbuster 5.2%.

Though the 5.2% quarterly growth rate was quite high by historical standards, it will be some time before final numbers are calculated for all of 2023, and in 2022 growth was significantly slower. Still, the first year of the Biden presidency, 2021, saw the U.S. economy grow by 5.7% — the largest full-year economic expansion since 1984. A quickly growing economy during a Biden presidency is not a single-quarter fluke or a temporary anomaly. Biden has been able to deliver on sustained rates of growth that Trump promised but could never achieve himself.

Of course, if you are determined to convince yourself that the economy was better under Trump than Biden, there are many ways to do so. Perhaps the most popular is to note that inflation has been high.

Though the Fed seems to have now gotten inflation under control, it was indeed a problem. Even so, you can cherry pick any metric and conflate it with the health of the entire economy until the cows come home. Sure, inflation was higher under Biden than Trump, but so was unemployment — you could go all day.

On this narrow criterion, however, there is no need for endlessly redefining what, exactly, constitutes “the economy” or to argue about the overall state thereof. Trump made a very specific promise: economic growth well above 3%. We can and do measure this with some precision, and we know that while he was president, Trump failed to achieve his own goal.

Biden, on the other hand, has achieved a sustained rate of economic growth above 3%. He beat Trump at his own game. It is a little silly to judge a president too harshly when it comes to GDP growth, since many factors beyond any president’s control affect the economy’s growth rate. Just the same, when Trump is losing by his own standard, it’s worth pointing out.

Unfortunately for Biden, the lie that Trump brought something magical to the economy is particularly persistent. Poll after poll finds that more Americans trust Trump on the economy than Biden.

The people responding to these polls who put their faith in Trump are dismally, tragically wrong. But there is one thing we all should have learned over the past eight years: if you have MAGA in your heart, no amount of data or facts or objective reality is going to change your mind.

Jonathan Wolf is a civil litigator and author of Your Debt-Free JD (affiliate link). He has taught legal writing, written for a wide variety of publications, and made it both his business and his pleasure to be financially and scientifically literate. Any views he expresses are probably pure gold, but are nonetheless solely his own and should not be attributed to any organization with which he is affiliated. He wouldn’t want to share the credit anyway. He can be reached at jon_wolf@hotmail.com.

In short, it was a beatdown.

Judges Karen LeCraft Henderson, Michelle Childs, and Florence Pan took turns batting around Trump’s attorney D. John Sauer, who was reduced to plaintively wondering if his time was up already and didn’t the court have more pressing matters to attend to?

The knifing started almost immediately with Judge Pan posing the hypothetical of a president who ordered SEAL Team 6 to assassinate his political rival. Trump argues that a president is immune from prosecution for all official acts, and that he can only be criminal prosecuted for crimes committed in office if he is first impeached by the House and convicted by the Senate. Commanding the military is unquestionably an official act, so by Trump’s logic, a president could never be prosecuted for it, even in the case of dispatching death squads. Or if he could be prosecuted, that prosecution would be dependent on Congress first impeaching and convicting him.

Sauer had no good answer for this, and so he resorted to yelling about Bill Clinton selling pardons, while unsubtly threatening that President Biden would soon be indicted in Texas if the court refused to grant Trump absolute immunity for all crimes committed while in office.

On rebuttal, Judge Pan moved in for the kill, asking if the instant prosecution would be appropriate had Republicans agreed to impeach Trump in 2021. Sauer tried to dodge, calling the charges against his client multiply defective. But by then, the damage was already done.

Judge Childs seemed most interested in the threshold issue of whether the denial of dismissal based on presidential immunity was immediately appealable. On this, both the plaintiff and defendant were in agreement, although perhaps for different reasons. Trump has made it clear that his plan is to delay all the cases against him until after the election. But AUSA James Pearce, arguing on behalf of the government, urged the court to decide the issue now, to avoid protracted appeals later.

Pearce got very little pushback from the court and was allowed to bury Trump’s bizarre double jeopardy argument and dance on its grave more or less uninterrupted. Although, to be fair, arguing that impeachment in the House and acquittal in the Senate means that jeopardy attaches is spectacularly ridiculous, and directly contradicted by writings from the founding fathers. Plus there’s this uncomfortable admission from David Schoen, Trump’s lawyer in the second impeachment:

The Constitution expressly provides in article I, section 3, clause 7 that a convicted party, following impeachment, ‘‘shall nevertheless be liable and subject to indictment, trial, judgment, and punishment according to law’’ [after removal]. Clearly, a former civil officer who is not impeached is subject to the same.

Doh!

Judge Henderson, the most conservative jurist on the panel, seemed interested in developing a presidential immunity standard based not on whether the actions were official, but by dividing the actions into ministerial or discretionary buckets. This rubric seemed unlikely to gain purchase with the other panelists, but it was a lifeline to Sauer, and he took it. Before racing for the exit, the lawyer begged the court to dismiss the case on his maximalist theory of presidential immunity for all acts undertaken while in office. But if not, he implored them to issue a mandate for Judge Chutkan to evaluate the specific conduct act by act to determine whether it was part of Trump’s official (or ministerial or discretionary) duty. That would at least buy him some time, and probably push the case off the trial calendar.

And then, perhaps in deference to his client’s presence in the courtroom, Sauer made the obligatory accusation that President Biden is prosecuting his “chief electoral opponent who is winning in every poll.”

DRINK! If not with Sauer, than in his honor. Because after that asskicking, he’s going to need a stiff one.

US v. Trump [District Docket via Court Listener]
US v. Trump [Circuit Docket via Court Listener]

Liz Dye lives in Baltimore where she writes the Law and Chaos substack and appears on the Opening Arguments podcast.

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Back in 2020, Musk’s satellite broadband venture, Starlink, gamed a Trump-era FCC subsidy program to try and grab $886 million in taxpayer dollars. It was a deal consumer groups noted was a huge waste of money, because the proposal itself — which involved bringing expensive satellite broadband to places like airport parking lots and traffic medians — clearly wasn’t the best use of taxpayer funds.

The Biden FCC noted the problems with the application and forced Starlink to re-apply. After some whining Starlink did, but was then rejected again by the FCC last year. The FCC stated that they weren’t sure Starlink could meet program speed goals consistently due to growing congestion and slowing speeds on the over-saturated network.

They also expressed concerns that the service might not be affordable to the heavily rural, lower income users most in need of help. Starlink requires a $600 up front equipment fee and costs $110 a month, and data consistently shows that affordability is a key obstacle to broadband adoption.

So this week, the FCC formally finalized its rejection of Starlink’s attempt to grab a billion dollars to deliver satellite broadband to some parking lots:

“The FCC is tasked with ensuring consumers everywhere have access to high-speed broadband that is reliable and affordable. The agency also has a responsibility to be a good steward of limited public funds meant to expand access to rural broadband, not fund applicants that fail to meet basic program requirements,” said Chairwoman Jessica Rosenworcel. “The FCC followed a careful legal, technical and policy review to determine that this applicant had failed to meet its burden to be entitled to nearly $900 million in universal service funds for almost a decade.”

The FCC made the right call. It makes much more sense to spend those subsidies to extend affordable, faster, and more reliable fiber access as far as possible, with 5G and fixed wireless filling in the gaps.

Starlink is nice for folks with absolutely no other options who can afford it, but we’ve noted repeatedly that it lacks the capacity to truly scale. The service only has around 1.5 million subscribers worldwide (far less than the 20 million Musk promised investors it would have by this point). It’s a rural niche option whose importance is routinely overstated in stories (like this latest story at the Nation).

For context, somewhere between 20 and 30 million Americans lack access to broadband. Another 83 million (as of 2020) live under a broadband monopoly. Even with its full suite of low-Earth orbit satellites in space a few years from now, Starlink will barely make a dent in the underlying problem. And that’s before you get to the whole ruining astronomical research thing.

But, of course, Republicans like the FCC’s Brendan Carr are already throwing hissy fits because the Biden FCC refused to waste a billion dollars in taxpayer subsidies on an expensive service that doesn’t scale. Carr, as is his way, took a very valid rejection of a wasteful proposal, and distorted it into a narrative where the government is somehow being particularly unfair to Elon Musk:

Even Elon’s mommy popped up to complain that the mean old government is being mean because it refused to give her son a billion dollars for no coherent reason:

It’s worth pointing out that Musk’s company certainly wasn’t alone in trying to game this particular program (the Rural Digital Opportunity Fund, or RDOF) with the Trump FCC and Brendan Carr’s help. The Biden FCC has had to come in and clean up the mess, suing numerous companies that tried to mislead the agency to grab taxpayer money for services they couldn’t actually deliver. All under Carr’s watch.

In fact the Trump FCC and Carr screwed up this particular subsidy program so badly, that when it came time to dole out $42 billion in infrastructure bill broadband funds, the Biden administration leapfrogged the FCC and put the NTIA in charge of managing much of it instead because they no longer trusted the agency’s reputation or competency. So Carr whining about the end result is particularly exhausting.

Again, the Biden FCC (which I criticize frequently and extensively) made the right call here technically and logistically. But Musk and his loyal Republican color guard are already busy reframing this as some kind of seedy personal government vendetta against Musk across the growing right wing propaganda echoplex.

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Also, Congressional subpoenas have to be authorized by a vote of the whole House. Except, of course, when they don’t.

Republicans are in a pickle of their own making with respect to Hunter Biden, the living vessel for all their hopes of finding something, anything to pin on the boring, old guy living at 1600 Pennsylvania Avenue.

During the first Trump impeachment, Attorney General Bill Barr tasked his minions with providing legal cover for his boss’s blanket refusal to cooperate with Congress. The Office of Legal Counsel obliged with a memo insisting that impeachment subpoenas are only valid if the entire House votes to “expressly authorize a committee to conduct an impeachment investigation and to use compulsory process in that investigation.”

As of this writing, the House hadn’t voted to authorize an impeachment inquiry, so under the Barr rule, the House Oversight Committee’s subpoena of Hunter Biden isn’t worth the paper it’s written on. Whoopsie!

Second, during the January 6 Committee’s investigation, Reps. Jim Jordan, Kevin McCarthy, and Scott Perry all ignored subpoenas to testify about their role in the events leading up to the attack on the Capitol that day. Which makes Jordan an imperfect messenger for the argument that blowing off a congressional subpoena is a crime.

Third, House Oversight Chair James Comer ran his mouth to serial plagiarist turned walking shitpost Benny Johnson, and promised that he’d let Biden testify publicly.

.@GOPoversight Chairman @RepJamesComer, this you?

"We can bring these people in for depositions or Committee hearings, whichever they choose." pic.twitter.com/X5xAOkQSlI

— Oversight Dems (@OversightDems) November 29, 2023

“We can bring these people in for depositions or Committee hearings, whichever they choose,” he boasted.

To which Hunter Biden’s very good lawyer Abbe Lowell replied “Mr. Chairman, we take you up on your offer.”

In a November 28, letter to Comer, Lowell decried the subpoenas for his client and various members of the Biden family as “a Hail Mary pass with your team behind in the score and time running out.”

“We have seen you use closed-door sessions to manipulate, even distort the facts and misinform the public. We therefore propose opening the door,” he went on, promising to make his client available for testimony on December 13, but only if that testimony would be public.

With his client facing multiple indictments for gun and tax charges, and with a promise from Special Counsel David Weiss to look into foreign lobbying allegations against his client, Lowell was clearly bluffing. But he did succeed in backfooting the hapless legislator, who was then put in the position of saying he didn’t want to hear from Biden in public after all. This amounted to a public concession that he really did want to release selected snippets and avoid the gleeful pantsing he gets from the Committee’s Democrats, particularly Reps. Raskin, Moskowitz, and Goldman, every time he tries this shit in public.

And this morning, the president’s son spanked Comer again.

Hunter Biden: "James Comer, Jim Jordan, Jason Smith, and their colleagues have distorted the facts ... there is no fairness or decency in what these Republicans are doing. They have lied over and over ... they have displayed naked photos of me during an Oversight hearing." pic.twitter.com/OZu70CH91p

— Aaron Rupar (@atrupar) December 13, 2023

“For six years, I have been a target of the unrelenting Trump attack machine shouting, ‘Where’s Hunter?’ Well, here’s my answer. I am here,” the president’s son told reporters on the steps of the Capitol.

He decried Republicans invasion of his privacy, their display of his naked photos on the House floor, and their attempt to convert his father’s articulation of an international demand for Ukraine to take a stand against public corruption into a “non-existent bribe.”

“They ridiculed my struggle with addiction. They belittled my recovery and they have tried to dehumanize me, all to embarrass and damage my father who has devoted his entire life to service,” he went on. “They have taken the light of my dad’s love for me and presented it as darkness. They have no shame.”

They also managed to make a notorious reprobate look like a sympathetic victim — which is probably not what Comer and Jordan were aiming for. Nor was this presser where they tried to look self-righteous about their plan to refer Biden for contempt of Congress charges, only to be derailed by Rep. Taylor Greene doing her impression of the comment section at Gateway Pundit.

Marjorie Taylor Greene tries to hijack the end of James Comer and Jim Jordan’s impromptu Hunter Biden press conference to berate the press for not asking about sex trafficking.

Comer and Jordan do not seem amused and Jordan cuts her off and walks away. pic.twitter.com/TcRpM1f6tQ

— MeidasTouch (@MeidasTouch) December 13, 2023

Presumably House Republicans will manage later today to vote for an impeachment inquiry into President Biden for uh, tell ya later. Then they’ll go on vacation for three weeks, because not governing really takes a lot out of you!

Liz Dye lives in Baltimore where she writes the Law and Chaos Substack.

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Santos, of course, has been accused of a great deal, indicted for less, and convicted of nothing (yet). But the House of Representatives last week voted to expel him.

Sen. Robert Menendez has been accused of a great deal, indicted for about the same amount, and convicted of nothing (yet). But the Senate has not done a thing.

Why?

To challenge myself, I created a series of hypothetical questions to assess how I honestly felt about these issues. I’ll now share these questions with you. Think about each question; decide in your own mind how you’d answer; and then scroll down to see what historical analogue I was thinking of.

Let’s get started:

Should a person be disqualified from public office if they plagiarized a speech?

Yes or no?

Come on; play the game.

I’m obviously thinking of Joe Biden, who plagiarized phrases used by U.K. Labour Party Leader Neil Kinnock in 1988. The public decided this dishonesty should disqualify Biden from public office, and Biden promptly withdrew from the primaries.

That was just a starter question. Let’s get to the meat of my hypotheticals.

Should a person be disqualified from public office if they lied about their academic credentials?

Yes or no?

I’m obviously thinking of Biden, who claimed in 1988 to have graduated in the top half of his law school class, when he actually graduated 76th in a class of 85.

You get the idea. Next question:

Should a person be disqualified from public office if they lied about their academic credentials?

That’s not accidental repetition. It’s a different historical analogue. Should the person be disqualified?

Of course I’m thinking of Santos, who claimed to have graduated from Baruch College, when he had done no such thing.

Should a person be disqualified from public office if they lied about their academic credentials?

No, it’s not triple vision. Who do I have in mind?

Naturally, it’s Donald Trump, who says that he graduated first in his class from the University of Pennsylvania’s Wharton School in 1968. We don’t know Trump’s precise class rank, but the graduation program listed all those who graduated cum laude, magna cum laude, and summa cum laude, and Trump wasn’t in any of those groups, so Trump was far from the top of the class.

Let’s go to some harder questions:

Should a person be disqualified from public office if they are accused of sexual assault?

Remember, it’s just an accusation. What do you think?

Of course I’m thinking of Bill Clinton, famously accused of sexual assault by Paula Jones.

Should a person be disqualified from public office if they are accused of sexual assault?

Again, not double vision. What do you think?

This time, it’s Trump, accused of sexual assault by E. Jean Carroll.

Wait! I phrased the question wrong. I said I would be precise, and I wasn’t. This is what I meant to ask:

Should a person be disqualified from public office if they are found civilly liable for sexual assault?

That’s the actual Carroll situation. I hope I didn’t mess you up by misphrasing the question the first time around.

Let’s do a trickier one:

Should a person be disqualified from being the head of the executive branch of government if they lie under oath, even if the lie is only about sex?

Shoot!

The last phrase gave it away. It’s Bill Clinton, lying about Monica Lewinsky.

This situation gave me pause back in the 1990s. As a litigator, I spent much of my life telling people that they had to tell the truth under oath, sometimes at the cost of their job or marriage. When the chief executive lies under oath, it made my job much harder. I thought that Bill Clinton should have set a better example for America. I would have voted to impeach.

But I digress.

Let me try again:

Should a person be disqualified from being the head of the executive branch of government if they lie under oath, even if the lie is only about sex?

This one’s easy, if repetitive.

It’s Trump and Carroll again, where Trump denied having met or assaulted Carroll, but the civil jury found that he did both. That’s again perjury by the head of the executive branch.

Just six to go:

Should a person be disqualified from public office if they mishandle classified government documents?

This is a tricky one.

It’s Hillary Clinton, who sent documents containing classified material from a personal e-mail server, although none of the documents was marked “Classified” at the top.

Next:

Should a person be disqualified from public office if they mishandle classified government documents?

It’s Mike Pence’s turn in my hypothetical questions.

Again:

Should a person be disqualified from public office if they mishandle classified government documents?

Biden, step right up!

I sure hope you’re getting these questions right.

Third-to-last:

Should a person be disqualified from public office if they mishandle classified government documents?

Of course, it’s now Trump’s turn in the spotlight.

But again, I misphrased the question. I said I’d be precise, and Trump is the only person who’s actually been indicted for mishandling classified government documents. So here’s the right question:

Should a person be disqualified from public office if they are indicted for mishandling classified government documents?

That’s better.

Finally, my last question.

It’s a tricky one. Put on your thinking cap:

Should a person be disqualified from public office if they are indicted on 91 felony charges?

You’re on your own.

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"A Republican coming into the White House — how is that going to help [our debt issue]? We run these deficits under every administration. It is basically a disease that we believe we can run a $2 trillion budget deficit in perpetuity. I don't think that is a Republican versus Democrat issue. I think it is a mathematician versus pseudo-economist issue," DoubleLine founder and CEO Jeffrey Gundlach said at the Yahoo Finance Invest conference this week…. "People have to really experience a crack of doom sort of moment that they realize that this is not sustainable," added Gundlach.

Yeah, a “crack of doom” moment. Now that’s the kind of thing Gundlach can get into.

A Trump or Biden win won't matter to investors, says 'bond king' Jeffrey Gundlach [Yahoo!]

Indeed, Eisenhower presided over the early years of the Cold War, and an unprecedented global buildup of arms that coincided with the blossoming of political power for the American defense industry. Though the Cold War has ended, new conflicts have risen up to take its place, and today, Eisenhower’s warning remains as prescient as it was in 1961.

The recent attacks by Hamas, and the immediate and expected response by Israel, unsurprisingly sent defense stocks surging. Even as the Dow Jones, the S&P 500, and the Nasdaq all fell at the outset of the conflict, aerospace and defense share prices saw impressive gains. For instance, in the first trading day following the Hamas attack, Raytheon shares climbed 5%, Lockheed Martin was up 9%, and Northrop Grumman broke out with an extraordinary 11% gain. These companies, along with two of America’s other large defense contractors, accounted for a combined $28 billion jump in market capitalization just three trading days into the Israel-Hamas war.

Although it is not unusual for defense stocks to shine even as the broader market is pummeled by news of an outbreak of armed hostilities, usually such gains are fleeting. This time might be different.

After a week and a half of fighting, the iShares Aerospace & Defense ETF (a fund which tracks the share prices of many leading defense companies) was still up about 7% compared to where is was at the time of the initial attacks. Meanwhile, the S&P 500 ended up virtually unchanged over the same period.

While this shows some staying power for the defense industry market surge, it is still far too early to make any meaningful assessments about the effect the Israel-Hamas conflict will have on the long-term financial health of defense contractors. Many analysts are waiting to see whether the war will spread to other regions and whether the U.S. Congress can overcome its ongoing dysfunction to pass the 4% increase in defense spending (bringing the total to $814 billion) in President Joe Biden’s proposed budget.

The United States has always had a complicated relationship with the for-profit companies that stand to benefit financially from large-scale kinetic violence. On the one hand, America would likely not have achieved its powerhouse status on the world stage without the technologies and military production capacity attributable to the private sector. On the civilian side, we also ultimately have the military-industrial complex to thank for some of the most useful and ubiquitous technologies we use on a daily basis — including the internet.

On the other hand, as Eisenhower warned more than half a century ago, we must always be vigilant against the influence of the partnership between the military and industry. We must never forget that on some level, whether it goes unspoken or is directly stated, we are being urged to pull that trigger or to launch that airstrike. The concept of just war should not be mixed up with a profit incentive. Yet, we must never stop reminding ourselves that it is.

For those of us who have money invested in defense industry stocks — a subset of investors which inevitably includes you if you have any broad index funds — the turmoil in Gaza has punctuated an otherwise underwhelming time in the equities markets. But, for the sake of the people on the ground, let us all hope for a far less profitable period in the weeks ahead.

Jonathan Wolf is a civil litigator and author of Your Debt-Free JD (affiliate link). He has taught legal writing, written for a wide variety of publications, and made it both his business and his pleasure to be financially and scientifically literate. Any views he expresses are probably pure gold, but are nonetheless solely his own and should not be attributed to any organization with which he is affiliated. He wouldn’t want to share the credit anyway. He can be reached at jon_wolf@hotmail.com.

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First, the New York Times’s Matt Flegenheimer and Maggie Haberman are out with a piece on Rudy’s drinking, at which he apparently excels:

For more than a decade, friends conceded grimly, Mr. Giuliani’s drinking had been a problem. And as he surged back to prominence during the presidency of Donald J. Trump, it was getting more difficult to hide it.

On some nights when Mr. Giuliani was overserved, an associate discreetly signaled the rest of the club, tipping back his empty hand in a drinking motion, out of the former mayor’s line of sight, in case others preferred to keep their distance. Some allies, watching Mr. Giuliani down Scotch before leaving for Fox News interviews, would slip away to find a television, clenching through his rickety defenses of Mr. Trump.

Even at less rollicking venues — a book party, a Sept. 11 anniversary dinner, an intimate gathering at Mr. Giuliani’s own apartment — his consistent, conspicuous intoxication often startled his company.

Meanwhile, Rudy appears to have lost local counsel in Georgia, where’s he’s been charged in the sweeping RICO indictment over election interference in 2020. Last week his attorney David Wolfe notified the court that he was withdrawing from the case, and this morning attorney Brian Tevis moved to follow suit. It’s not clear whether Judge Scott McAfee will approve the motion, which would leave Giuliani without local representation.

Giuliani is facing down a devastating defamation suit by Atlanta poll workers Ruby Freeman and Shaye Moss, in which his refusal to comply with discovery already got him a default judgment. He’s being sued for non-payment of fees by his former lawyer and friend Robert Costello. He’s facing a lawsuit by a woman who worked for him and alleges that he coerced her into a sexual relationship. And he just got sued by Hunter Biden, who alleges that Guiliani hacked into his iCloud account.

Luckily, Rudy has discovered a ready source of funds, and all his worries will soon disappear.

He’s suing the president. 

In New Hampshire state court.

For calling him a “Russian pawn.”

In October of 2020.

During a presidential debate in Nashville, TN.

Obviously.

How could a court in New Hampshire — which just so happens to have a three-year statute of limitations on defamation — possibly have jurisdiction over comments made in Tennessee?

Well, see, the Supreme Court said in 1984 that Hustler Magazine could be sued in New Hampshire because it sold its product there, so … ummm, yeah. The complaint similarly yaddayaddayaddas over personal jurisdiction by claiming that Biden either made the comments to New Hampshire media outlets, or in such a forum as to know they would be published in the state.

But wait, there’s more!

The Plaintiff may recover for the distribution of each defamatory statements in all jurisdictions, and not just New Hampshire, including without limitation those jurisdictions whose own statutes of limitations would bar recovery.

The gravamen of the allegations is that Biden called Rudy a “Russian pawn” and said that nobody but Rudy and Trump believed the garbage about Hunter Biden’s “laptop.” In point of fact, Giuliani was being used as part of an influence operation by Russian agent Andrii Derkach. Derkach, a Ukrainian parliamentarian who fed Giuliani information about Joe and Hunter Biden, was sanctioned by the Trump Treasury Department in for interfering in the 2020 election, and later indicted for fraud and money laundering.

A September 2020 Treasury press release read:

Derkach, a Member of the Ukrainian Parliament, has been an active Russian agent for over a decade, maintaining close connections with the Russian Intelligence Services. Derkach has directly or indirectly engaged in, sponsored, concealed, or otherwise been complicit in foreign interference in an attempt to undermine the upcoming 2020 U.S. presidential election.

[…]

From at least late 2019 through mid-2020, Derkach waged a covert influence campaign centered on cultivating false and unsubstantiated narratives concerning U.S. officials in the upcoming 2020 Presidential Election, spurring corruption investigations in both Ukraine and the United States designed to culminate prior to election day. Derkach’s unsubstantiated narratives were pushed in Western media through coverage of press conferences and other news events, including interviews and statements.

Anyway, here’s Rudy Giuliani with his attorney lawyer Lou Diamond announcing the case.

In Concord, NH, @RudyGiuliani announces he’s going to sue @JoeBiden for calling him a “Russian pawn” during 2020 campaign.@nhgop pic.twitter.com/UBEdA7duVB

— NH Journal (@NewHampJournal) October 4, 2023

And if you were thinking, wow, that guy looks like a mob lawyer from Staten Island who uses a hotmail address in his signature block calling himself “BikerLou45,” you would be correct.

And now … we all need a drink.

Giuliani’s Drinking, Long a Fraught Subject, Has Trump Prosecutors’ Attention [NYT]
Giuliani v. Biden [Complaint via The Hill]

Liz Dye lives in Baltimore where she writes about law and politics and appears on the Opening Arguments podcast.

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For four years under Trump the agency was a glorified rubber stamp to industry interests. Telecom and media giants then lobbied Congress into gridlock for two years under Biden to ensure Democrats couldn’t fill vacant commissioner seats, keeping the agency without a voting majority, unable to do pretty much anything deemed controversial by industry (like restoring net neutrality).

After the industry-backed derailing of the Gigi Sohn nomination set a new high water mark for sleazy Congressional corruption, the Biden administration last May decided to try again by nominating Anna Gomez, a former NTIA official and Sprint lobbyist widely viewed as a safer and less “controversial” (read: she historically hasn’t been much of a consumer advocate or reformer) candidate.

Not too surprisingly, Gomez’s confirmation is moving through Congress more quickly than Sohn’s. Despite some performative outrage by Ted Cruz pretending Gomez is the type of nominee who’ll embrace “regulatory overreach” (whatever that means for an agency that hasn’t shown political courage for the better part of a decade), Gomez’s nomination was approved by the Senate Commerce Committee and now heads to a full Senate vote:

Democrats hold a 14-13 majority on the Senate Commerce Committee. Gomez’s nomination was passed without a full roll call, but nine Republicans, including Sen. Ted Cruz (R-Texas), asked to be recorded as a “no” on Gomez’s nomination.

Republicans are just being obstructionist here, as usual. There’s absolutely nothing controversial about Gomez. There wasn’t actually anything controversial about Sohn either; Republicans and the telecom industry just didn’t want the FCC under Biden to function, so they made up an entirely bogus narrative about how Sohn was a radical cop hater, then seeded it across right wing media with great success.

But if you’ll recall, Sohn’s nomination was scuttled not just by Republicans (who routinely vote in lockstep with the interests of AT&T and Comcast on nearly every issue), but thanks to three key Democratic Senators (Joe Manchin (WV), Mark Kelly (AZ), and Catherine Cortez Masto (NV)) who, worried about being vulnerable politically in swing state midterms, parroted industry’s false concerns that Sohn (a hugely popular reformer) was some sort of extremist.

Said Democrats are far more likely to sign off on Gomez, whose positions on key public interest issues are more of a black box. That said, the kind of nominees that can survive a corrupt congressional nomination process generally aren’t the kind of “rock the boat” types you actually need if you’re looking to implement reform on issues like broadband consumer protection or media consolidation.

The result, as you can pretty clearly see with existing FCC commissioners from both parties, are officials who talk a lot about their ambiguous dedication to “bridging the digital divide,” but generally are too worried about future career prospects to meaningfully challenge the giant telecom monopolies responsible for a large segment of the industry’s biggest problems.

Still, Gomez says she supports reverting the Trump era dismantling of net neutrality. And from my conversation with insiders, the Biden administration remains keen on restoring the rules. But with limited time left in Biden’s first term, and an agency staffed with the kind of folks not known for disrupting the status quo, a restoration of well-crafted net neutrality protections remains something I’ll have to see to believe.

Net neutrality rules were flawed but important guidelines aimed at keeping telecom monopolies from abusing their market power to harm competition and consumers. Despite a lot of misinformed people claiming that “the repeal must not have mattered because the internet still works!”, it mattered. It gutted the FCC’s already flimsy consumer protection authority generally, and the only reason big ISPs haven’t behaved worse in the years’ since is because numerous states passed their own net neutrality protections.

So restoring net neutrality, and specifically once again reclassifying ISPs as common carriers under Title II, remains important from a general consumer protection perspective.

But at this point I think the public and policy worlds are so burned out on the net neutrality debate after 20 years, it makes sense to focus most telecom policy energy and messaging on the real underlying cause of shitty, expensive broadband: telecom monopolization and the corruption that protects it. That messaging also needs to focus on what’s actually working, namely the various community-backed alternatives directly taking aim at concentrated monopoly power.

But I don’t get any real sense the Rosenworcel FCC, Gomez or not, actually has the political courage to meaningfully wage that particular fight. And with a corrupt Congress built to ensure that popular reformers can’t survive the regulatory nomination process, it’s doubtful it’s going to anytime soon.

Finally Close To Having A Voting Majority, Will The Biden FCC Actually Restore Net Neutrality?

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The theory of the case is that the government made a tacit threat to overturn Section 230 of the Communications Decency Act, which immunizes websites for user-generated content, and thus the social media platforms were unwillingly conscripted to act as government agents when they removed anti-vaccine and election misinformation. There’s virtually no evidence that the Biden administration made any such threat, which would be ridiculous since only Congress can change the laws. And in reality, the main proponents of § 230 repeal are Republicans, not Democrats.

Moreover, the website-as-government-actor theory has been rejected by every other court to consider it — although, to be fair, most of those courts were in the heathen Ninth Circuit, thanks to binding forum selection clauses in the platforms’ terms of service. The plaintiffs here conveniently sidestepped this issue by suing only the government, which allowed them to avail themselves of the hospitality of the Western District of Louisiana.

In Doughty’s telling, it didn’t even matter that the government was largely leaning on the platforms to comply with their own terms of service:

Therefore, the question is not what decision the social-media company would have made, but whether the Government “so involved itself in the private party’s conduct” that the decision is essentially that of the Government. As exhaustedly listed above, Defendants “significantly encouraged” the social-media companies to such extent that the decision should be deemed to be the decisions of the Government.

So after a year and six extensions of time for discovery, and absent any showing that the plaintiffs’ horse dewormer and Big Lie posts were in danger of imminent suppression, the court granted “emergency” injunctive relief and banned the government from “engaging in any communication of any kind with social-media companies urging, encouraging, pressuring, or inducing in any manner for removal, deletion, suppression, or reduction of content containing protected free speech.”

The government requested a stay pending appeal, but Doughty refused, reasoning that “Violation of a First Amendment Constitutional right, even for a short period of time, is always irreparable injury.”

The government then sought emergency appellate relief, and this afternoon the Fifth Circuit issued a brief, per curiam order, staying Judge Doughty’s ruling administratively and expediting the appeal.

IT IS ORDERED that this appeal is EXPEDITED to the next available Oral Argument Calendar.

IT IS FURTHER ORDERED that a temporary administrative stay is GRANTED until further orders of the court.

IT IS FURTHER ORDERED that Appellants’ opposed motion for stay pending appeal is deferred to the oral argument merits panel which receives this case.

And so Judge Doughty’s plan to save Free Speech by issuing the greatest prior restraint on speech in several decades will have to wait a little bit longer.

Liz Dye lives in Baltimore where she writes about law and politics and appears on the Opening Arguments podcast.

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When an earthquake strikes, the first sentence in a legitimate newspaper says, “A magnitude 7.2 earthquake hit Shangri-La. Tens of thousands of buildings have collapsed. Thus far, three people are confirmed dead.

”But irresponsible journalists — such as, say, me! — are not similarly constrained. Instead of careful responsibility, we’re allowed to use common sense. I could write, for example, “Get a load of that earthquake. By the time they finish sifting the rubble, I bet we’re gonna learn that thousands have died.” My statement may not be careful and responsible, but it’s true.

That’s why I was able to tell you the verdict in the E. Jean Carroll case before it happened: Real journalists were constrained to wait for the verdict; I could use my common sense.

It’s the same with the recent indictments of Trump: Real journalists have to say, “Trump is, of course, presumed to be innocent. Until a jury says otherwise, he is not guilty."

I’m not constrained by any such nonsense.

I’m using my common sense now to tell you two things. First, Donald Trump is going to jail. Second, you’ll have to read through to the penultimate paragraph of this column to find out my other prediction.

I don’t guarantee that Trump is going to jail as a result of the pending New York State criminal case involving Stormy Daniels. Don’t get me wrong: That’s a terribly hard case for Trump; the prosecution does, after all, have copies of the checks that Trump himself signed and the business records that misconstrue those checks. But maybe there will be some problem with the state’s legal theory, or maybe the trial will be postponed to beyond the election, or maybe a Trump loyalist on the jury will refuse to vote to convict. There’s a strong chance Trump ends up in jail for that case, but it’s by no means guaranteed.

Nor do I guarantee that Trump is going to jail because of the Mar-a-Lago indictment handed down last week, involving mishandling of classified documents. Don’t get me wrong: That’s a terribly hard case for Trump; the prosecution does, after all, have:

1. Trump’s own incriminating words on tape, with Trump telling folks with no security clearance to look at a classified document;

2. The other witnesses who were in the room when that tape was made, all of whom will presumably say, “I did not have security clearance, and Trump was showing us the classified document”;

3. Photographs of improperly stored documents;

4. Testimony from employees of “The Office of Donald J. Trump” saying that Trump engaged in improper conduct; and

5. Trump’s own lawyers saying that Trump engaged in unlawful conduct, among many other things.

Moreover, Trump and his supporters have had almost a year to provide a legal justification for what Trump did, and they can stammer no more than, “We think Biden did something similar,” and “Hillary’s emails!” — both of which are great fun, but neither of which means Trump should not go to jail.

(The fact that Trump, knowing the he was being tape-recorded, and in front of multiple witnesses who would later tell the truth, pulled out a classified document and showed it around, suggests one other thing: If there were a section of the United States Code that allowed prosecutors to indict people for “criminal stupidity,” there would be an extra count in the Trump indictment. I’d say that Trump has the IQ of a grapefruit, but that unfairly disparages grapefruits.)

But maybe Trump will somehow avoid prison in the Florida case. Maybe Judge Aileen Cannon will postpone the trial until after the election; maybe she’ll rule in favor of Trump on every pretrial motion that he files; maybe a Florida jury will include at least one Trump loyalist, who won’t vote to convict, no matter the evidence. There’s an extremely strong likelihood that Trump ends up in jail for these charges, but it’s not absolutely guaranteed.

No, no, no: I make my guarantee only because at least one more indictment, and probably two, will soon be handed down. Fani Willis, the Fulton County, Georgia, district attorney, has essentially announced that Trump will be indicted in Georgia in early August. Again, that case will not be a cakewalk for Trump: Prosecutors have Trump’s own words on tape trying to strong-arm Georgia officials into changing the election result. And Special Counsel Jack Smith is likely to indict Trump for his conduct on January 6, 2021. That case may be complex and take a while to try, but it’s again pretty tough to defend: The Capitol Building was ransacked for nearly three hours, and Trump did absolutely nothing to stop the carnage. Indeed, Trump now says that, if elected again, he’d probably pardon most of the rioters. Use your common sense: What was his motive on January 6?

So Trump is likely to be facing four criminal trials next year. Each one of those trials, independently, poses a huge risk to Trump. But even if he manages to beat the rap once or twice, it’s almost inconceivable that he’ll beat the rap four times in a row. That’s just rolling the dice too often. Thus, Trump is going to jail: You read it here first.

Sadly, here’s my second prediction: Joe Biden will be indicted after he leaves office. Don’t get me wrong: I don’t think Biden has done anything criminal. And, even under a hypothetical Republican administration, I still have enough faith in the career lawyers at the Department of Justice to believe that they would block any attempted federal prosecution of Biden. But the New York case against Trump is precedent for any local district attorney in any state anywhere in the country indicting Biden for anything.

There are over 2,300 chief prosecutors (district attorneys and similar prosecutors who go by different titles) in the United States. Suppose that only half of those prosecutors are Republicans; we’re down to 1,100 prosecutors. Suppose that half of those prosecutors are insane Trump loyalists; we’re now down to 500 prosecutors. Suppose that a few of the remaining 500 prosecutors were elected in districts where Democratic constituents (or jurors) might restrain them. We’re still left with literally hundreds of chief prosecutors, all of whom could instantly become nationally prominent if they indicted former President Joe Biden for something, anything.

I’d say the odds of Biden not getting indicted are about the same as the odds that Trump does not end up in jail.

America is now in a very sorry place.

Mark Herrmann spent 17 years as a partner at a leading international law firm and is now deputy general counsel at a large international company. He is the author of The Curmudgeon’s Guide to Practicing Law and Drug and Device Product Liability Litigation Strategy (affiliate links). You can reach him by email at inhouse@abovethelaw.com.

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The forgiveness plan was first proposed last summer, which suggests that this was a political stunt to influence the 2022 midterm elections.

How the court will rule is not certain. Commentators believe that the majority Republican-appointed justices are expected to rule that the political and economic significance of the forgiveness plan requires congressional approval. On the other hand, some justices seem to question whether the plaintiffs have standing to sue. All parties seem to agree that a federal loan servicer is in a better position to sue as they will suffer enough harm to establish standing. But none have stepped up.

Several other factors can influence the court’s decision. Recently, both houses of Congress narrowly passed a bill that would repeal the loan forgiveness plan. The votes were mostly on party lines. President Biden has stated that he will veto the bill, and there are not enough votes to overturn it. While the bill has no chance of becoming law, it could send a signal on the issue to the court.

For example, several justices seem to understand the crushing burden of student loans. Some have placed significant sums of money into college savings accounts. Justice Clarence Thomas wrote about the role student loans played in his own financial struggles.

The fact that no decision has been made until now might suggest that the court will rule against forgiveness. If they were to rule to uphold it, the Court would have issued its opinion earlier as debtors will be happy and are more likely to accept the transition back into repayment. Issuing its opinion later would give debtors more time to prepare for the inevitable. The recently passed debt ceiling extension bill effectively codifies the repayment start date, which is sometime in September.

The Court has established its legal rationale for whatever it decides on this issue. But behind the legality is the question of fairness where Congress is better suited to decide. Is the potential unfairness enough to justify striking down the forgiveness plan?

First, let’s address the elephant in the room. Loan forgiveness is unfair to those who paid their loans in full either on their own or through their parents who saved because they could have used that money for their retirement, other investments, or just to enjoy themselves. These people deserve the utmost and unconditional respect but instead they are ignored, patronized, or are shamed for being financially prudent or for their so-called privilege.

Also, people need to stop claiming that student loans should be forgiven because the government forgave those who received Paycheck Protection Program or PPP loans. PPP loans were designed from the outset to be forgiven if the funds were used for a specific purpose — mainly to pay employees who would otherwise have been laid off. Some people got up to over $20,000 in free money out of this but that is how it was designed in response to the pandemic. PPP loans are more analogous to the PSLF program where federal loans are forgiven if the borrower spent 10 years working in public service jobs.

With that being said, let’s look at fairness from a different perspective. These days, $10,000 or $20,000 is a lot of money, but that alone will not pay off most people’s loans. Many who advocate for loan forgiveness say it is not enough.

On one end, there are those who paid off their student loans and will not get a refund. As stated above, it is unfair to them. But those who paid off their loans have benefits and a sense of accomplishment. Their delayed gratification now provides them more financial freedom. The interest payments they don’t have to pay likely exceeds the forgiveness amount. And can one put a price on peace of mind?

But on the other, extreme end, there are those with hundreds of thousands of dollars in loans and their monthly discretionary income is not enough to even pay the interest. These people will be on an income-based repayment plan for up to 20 years. Even if they get the $20,000 loan forgiveness, they are likely to still make the same monthly payments until their loans are forgiven in full at the end of their IBR period.

In most cases, the current loan forgiveness proposal will provide the greatest benefit to those who have low student loan balances. And who are likely to have low student loan balances? Those who lived within their means and did not overborrow. Those who got scholarships and skillfully negotiated tuition discounts.

The Supreme Court should decide on the student loan issue as soon as possible to end this saga and continue getting back to normal. While many will question the fairness of forgiveness, the size of the forgiveness amount suggests that it will mostly benefit those who maintained low student loan balances by being financially responsible.

Steven Chung is a tax attorney in Los Angeles, California. He helps people with basic tax planning and resolve tax disputes. He is also sympathetic to people with large student loans. He can be reached via email at stevenchungatl@gmail.com. Or you can connect with him on Twitter (@stevenchung) and connect with him on LinkedIn.

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The military, for example, advised President Lyndon Johnson about the Vietnam War: “We can win! We can win! More troops! We can win! We can win! … Oops! We lose.”

No one wanted to deliver bad news to the boss — and he didn’t want to hear it — so they didn’t.

When the post-mortems are written about the war in Afghanistan, I bet it’ll be the same: Twenty years of “we can win,” followed by “oops,” when the United States withdrew and Kabul was immediately overrun.

I wonder what Donald Trump’s advisers are telling him now about speaking publicly on issues that are the subject of criminal investigations (or, in one case, an indictment). Competent counsel generally advise clients not to speak publicly about pending criminal matters. Trump, for example, is digging himself a bigger hole each time he speaks about the documents at Mar-a-Lago. He should stop talking.

It’s entirely possible to give that advice even to a political candidate: “Talk about anything you like, other than the subjects of criminal investigations. Build a wall; save Social Security; end the war in Ukraine in 24 hours; own the libs. But, when asked about the payment to Stormy Daniels, or the documents at Mar-a-Lago, or the events of January 6, say, ‘I’m sorry, but I can’t comment on that. My lawyers have advised me not to talk about issues that are the subject of criminal investigations.’”

Of course Trump should do that. But is anyone near him courageous enough to give that advice? (Perhaps they are, and Trump simply isn’t listening. Or perhaps the advisers stopped giving that advice long ago, when they realized that it was hopeless.)

How about advice on more personal issues?

Should Dianne Feinstein resign her seat in the Senate? Of course. But I doubt anyone’s giving her that advice. She probably doesn’t want to hear the advice, so it takes courage to deliver it. And, if you’re one of Feinstein’s aides, the advice runs against your self-interest: You’re currently a high-level political aide to a United States senator. If that senator takes your advice and resigns, then you’re a schlub, just like the rest of us. Do you really think anyone close to Feinstein is advising her to resign?

Should Joe Biden run for another term as president? He’ll be 82 on Election Day and, if he wins, 86 at the end of his second term. The average life expectancy at birth for an American male is about 78 years. (The average life expectancy of a guy who’s already made it to 82 is seven years — to 89.) Life expectancy, of course, speaks only to how long you’ll be breathing; you could be in pretty bad shape by the time the end comes.

I wish Biden all the best. But my father died at 80, and the last five years weren’t so good. I know painfully few 85-year-olds who are still in both mental and physical shape to handle a job that’s awfully tough, even if you’re surrounded by top-notch aides.

But who’s telling Biden that? Do you think that Biden’s chief of staff, who’s currently one of the most powerful people in the world, is telling Biden not to run, and the chief of staff should lose his job? What do you think about any other high political aides, who are in exactly the same position?

I’m not saying that Biden’s position is crazy: He’s relatively moderate, and a Democratic primary could easily nominate someone to the far left, who might not be as electable as Biden. But I wonder how many people will stay home on Election Day in 2024 because they’re not enthusiastic about casting a ballot for a guy who’s 82.There’s only one person who might give Biden honest advice on whether he should run again.

We were counting on you, Jill, and I think you failed us.

Mark Herrmann spent 17 years as a partner at a leading international law firm and is now deputy general counsel at a large international company. He is the author of The Curmudgeon’s Guide to Practicing Law and Drug and Device Product Liability Litigation Strategy (affiliate links). You can reach him by email at inhouse@abovethelaw.com.

Yesterday, the pride of George Washington University Law School committed over 1,000 words to paper explicating his latest legal theory to nail Hunter Biden. It’s a very serious piece and not at all surgically designed to hit buzzwords that might pique the interest of milk toast Fox News hosts looking to give five minutes to the attention-starved law professor.

His airtight legal case begins…

In 2018, Hunter Biden’s world was collapsing.

The New York Times had run a story on one of his shady deals with the Chinese and his father, then vice president, was pulled into the vortex.

“Then vice president.” This is an article that the New York Post published on Monday at 10:47 p.m. The paper would not correct this historical error to “the former” until Tuesday at 10:15 p.m. It took almost 24 hours for a major news publication to fact-check that Joe Biden was not Donald Trump’s vice president. Do they have any editors at all over there? This is the same paper that metastasized the claim that homeless vets were being kicked out of housing to make way for illegal immigrants in what ultimately turned out to be an easily verifiable lie. Get it together over there.

Turley’s website has not yet corrected the claim.

That might be because Turley realizes correcting the blatant error doesn’t resolve the underlying rot in the article. Turley’s central thesis is that uncovered messages among the Biden family suggest that Hunter Biden engaged in illegal influence peddling in 2018. Changing the second sentence of the article to acknowledge that Joe Biden was a private citizen in 2018 might avoid botching a historical fact, but it also dooms the remaining 1,000-some-odd words.

If Biden’s son leaned on his dad’s reputation to close business deals in 2018, it’s a reminder that the revolving door of D.C. political power reeks, but it’s not illegal. That’s why most Hunter Biden truthers fixate on allegations firmly anchored before January 2017.

Turley must have thought he was a very special boy for being the first one to craft a legal theory based on these new 2018 messages! In his haste, he breezed over the inconvenient reality of linear time that apparently held back the rest of his fellow travelers.

To be entirely clear, someone who fancies themself a legal scholar sat down at a keyboard and banged out a theory of criminal liability predicated on a false assumption of fact and then broadcast that to the world. At least the ChatGPT hallucination lawyer thought he’d conducted cursory research.

Or Turley is, in fact, from that universe where Stouffer’s actually makes stuffing. Has anyone checked to see if he’s ever sported a goatee?

Bidens offer ‘safe harbor’ to Hunter as he flails over scandalous reports, new messages show [NY Post]

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Turns out, however, that it wasn’t bullshit: The problem really wasn’t with First Horizon or the dark clouds threatening its ilk. Turns out the issue is that TD’s approach to not facilitating criminal activity, another of the White House’s particular peccadilloes, is more in line with those of, say, Deutsche Bank or Wells Fargo than with the sort of bank—beloved and sainted JPMorgan Chase comes to mind—Biden’s people are likely to allow to acquire another, no matter how potentially troubled. After all, if the bit of the divorce statement attesting to the strength and virility of First Horizon were to prove less true than the bit about regulatory wariness, Joe can always call Jamie again.

The regulators’ concerns stemmed from the way TD handled unusual transactions in recent years, and the speed at which some of them were brought to the attention of U.S. authorities…. TD had pledged to regulators that it would make its anti-money-laundering policies more comprehensive and timely, but it wasn’t enough to win approval for the deal, this person said….

Financial-services lawyers said it is unusual for U.S. regulators to block bank mergers outright. The government cited concerns over M&T Bank’s anti-money-laundering policies in its review of the lender’s 2012 agreement to acquire Hudson City Bancorp, before ultimately approving the deal—three years after it was announced.

Concern Over TD Anti-Money-Laundering Practices Helped Scuttle First Horizon Deal [WSJ]
PacWest, Western Alliance Stocks Fall as Regional Bank Jitters Return [Barron’s]

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On the issue of standing, the liberal justices questioned whether the six state plaintiffs had standing to sue. According to them, the proper plaintiff would have been MOHELA, a corporation created by state statute. U.S. Solicitor General Elizabeth Prelogar, representing the Biden administration, conceded that MOHELA would have standing to challenge the program.

Nebraska Solicitor General James Campbell countered by pointing out that Missouri created MOHELA and that the money it receives is paid to the state which would be in jeopardy if the student loan program is upheld. But the liberal justices did not seem convinced that this connection was sufficient enough to establish standing. Even Justice Barrett wondered why they didn’t force someone from MOHELA to join the lawsuit. They also noted that MOHELA must be separate entity if Missouri has to resort to public information requests to get information from them and that the state is immune from MOHELA’s liabilities. They also questioned how Missouri has suffered harm because apparently MOHELA has not paid the state since 2008.

On the matter of standing for the two individual plaintiffs, one of them did not qualify for loan forgiveness at all while the other did not qualify for the additional $10,000 forgiveness because they did not get a Pell Grant. They claim that they have standing to sue because the Department of Education did not provide a notice and comment period which would give them the opportunity to present their grievances and possibly have the guidelines changed to their favor. Prelogar countered that there are other avenues where they can present their grievances and that the HEROES Act does not require a notice and comment period if the Secretary of Education uses the Act to implement loan forgiveness.

Justice Jackson expressed concern that a careless ruling on standing could affect the federal government’s ability to govern if anyone can sue the government over anything they do not like.

When the discussion turned to the merits, the conservative justices took the position that a program that would cost almost half a trillion dollars and would affect over 40 million Americans should be decided on by Congress. Justice Thomas questioned the meaning behind the words, wondering whether the words “modify and waive” is the same as forgiveness.

One of the liberal justices countered the cost argument by pointing out that the prolonged loan forbearance placed by both Presidents Biden and Trump also cost billions of dollars but no one complained then. This line may prove to be problematic if President Biden again breaks his “final extension” promise because someone might sue to invalidate the loan forbearance — such as a third-party FFEL loan holder whose interest continues to accrue and continues to make payments.

Prelogar did not contest that the program has major political and economic significance but argued that the major questions doctrine would not apply because statute clearly allows the secretary to modify or waive any provision of the law during a national emergency. She also drew a distinction between regulatory programs and a program that provides benefits. However, the justices did not seem convinced by that distinction.

Justice Kavanaugh stated that it is problematic to apply what he considers old law to unilaterally forgive student loans. He also mentioned that in the Court’s history, the worst moments were when the Court allowed executive actions to stand while its finest hour was when it pushed back against presidential assertions of emergency power. He did not mention examples of either.

Prelogar mentioned that if not for the loan forgiveness program, many people would default on their loans. However, since federal loans are eligible for income-based repayment programs, one could ask whether this would resolve the default issue. Also, considering that many loan holders have significantly more than $10,000 in student loans, a significant number of people would still either be in default or suffer financial hardship.

At some points during oral arguments, everyone discussed fairness, which is the elephant in the courtroom. The conservative justices asked about the fairness of the loan forgiveness program to those who didn’t go to college or to those who sacrificed to pay off their loans. Chief Justice Roberts uses an example of someone who didn’t go to college and took out a bank loan. He claims that Congress should have the power to make spending decisions that take fairness into account.

The liberal justices looked at fairness differently. They seemed more concerned about the people who are at risk of defaulting. Justice Sotomayor said that many borrowers do not have assets, friends, or family to help them when they have financial problems, and things will get worse if they default on their loan payments.

The Supreme Court will likely issue its decision in a few months, most likely after May 11 when President Biden ends the state of emergency due to COVID-19. Considering that the liberal justices favor one outcome while the conservative justices favor another, it is likely that the court will implement the major questions doctrine to invalidate the student loan forgiveness program. However, at least one conservative justice seems to question whether the plaintiffs have standing. It may come to the point where MOHELA or a similar loan servicing agency will be “encouraged” to file a new lawsuit on its own.

Steven Chung is a tax attorney in Los Angeles, California. He helps people with basic tax planning and resolve tax disputes. He is also sympathetic to people with large student loans. He can be reached via email at stevenchungatl@gmail.com. Or you can connect with him on Twitter (@stevenchung) and connect with him on LinkedIn.

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Not uncanny-valley everyman Neel Kashkari. While the AI running the Minneapolis Fed chief does its best to appear like a totally normal guy—boiling down complex subjects like inflation to simple analogies to ride-sharing pricing—it also prides itself on thinking differently. No: This non-economist doesn’t need all the numbers or to worry about which gauge is “core” or “supercore.” He just needs to go to his local Kowalski’s Market and head to the freezer aisle.

“I pay attention to grocery prices. There is this large tray of lasagna that I used to buy that used to cost around $16. Now it’s around $21,” said Kashkari in reference to the Stouffer’s product. “That’s my own little measuring stick of how inflation is going.”

And since his key inflation gauge is still running at 31.25%, rather than the headline rate of 5% or “supercore” rate of about 4%, Kashkari’s not nearly done jacking up interest rates.

The Fed recently hiked its benchmark short-term rate to 4.75%, but Kashkari said he’d advocate for an eventual hike up to 5.4%. “I’m a little bit on the higher end than some of my (Fed) colleagues,” he said.

Fed Reserve official says he gauges inflation by the price of Stouffer’s frozen lasagna [MarketWatch]
New White House Wage Data Show Slowing Pressure on ‘Supercore’ Inflation [WSJ]
Fed’s Neel Kashkari says central bank has not made enough progress, keeping his rate outlook [CNBC]
Powell: Jobs report was stronger than expected but shows why this will be a long process [Reuters]
Biden Makes His Business Case in the State of the Union [DealBook]

U.S. District Judge Leonie Brinkema, one of the judges who stayed then-President Donald Trump’s executive order restricting immigration into the United States, has been named to oversee the Justice Department’s antitrust lawsuit against Alphabet Inc’s (GOOGL.O) Google over its alleged abuse of dominance in online advertising technology.

The government on Tuesday argued that Google should be forced to sell its ad manager suite, tackling a business that generated about 12 percent of Google’s revenues in 2021 but also plays a vital role in the search engine and cloud company’s overall sales.

In today’s marketplace, algorithmic placements are king. Trust me, anyone who’s ever done so knows how desperate you have to be to move past page three of most Google searches. Being on the first page sells — it isn’t too unreasonable that Google would want a piece of those front-page profits. They better have some consumer-minded defenses ready. I look forward to reading about this case as it develops — it will likely have implications that spill over to other data behemoths like Amazon. In the meantime, I’m gonna do my best to switch over to DuckDuckGo for my search needs. Wouldn’t want to cloud the writing with personal bias, you know.

Judge Leonie Brinkema named to oversee U.S. lawsuit against Google [Reuters]

Chris Williams became a social media manager and assistant editor for Above the Law in June 2021. Prior to joining the staff, he moonlighted as a minor Memelord™ in the Facebook group Law School Memes for Edgy T14s. He endured Missouri long enough to graduate from Washington University in St. Louis School of Law. He is a former boatbuilder who cannot swim, a published author on critical race theory, philosophy, and humor, and has a love for cycling that occasionally annoys his peers. You can reach him by email at cwilliams@abovethelaw.com and by tweet at @WritesForRent.

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The White House is moving forward with a proposal that would lower student debt payments for millions of Americans now and in the future, offering a new route to repay federal loans under far more generous terms.

If it’s finalized, the proposal would give a major overhaul to income-driven repayment plans — one of several payment options offered by the federal government. The resulting plan would have lower monthly payments, an easier path to forgiveness and a promise that unpaid interest will not be added to a borrower’s loan balance… As long as borrowers make their monthly payments, any unpaid interest would not be charged. The change is meant to prevent borrowers from having unpaid interest added to their loan balance, a practice that can cause debt to snowball even as borrowers make payments.

This would be freaking huge! Remember that one time we covered the woman who, after taking out $29k in student loans, still owed over $300k? This is an extreme example, but only in degree. It is common for student loan borrowers to owe more than what they initially took out. Combatting compounding interest would be a much greater blow than a measly $10-20k off the top… assuming you’re able to consistently pay on time, of course.

In short, you should probably keep tabs on the state of Biden’s student loan forgiveness. If you owe under $20k, there’s still the chance that your loans will be wiped out in toto dependent on the outcome of the upcoming Supreme Court cases. If your student loan tab is enough to cover about half the cost of a Midwest home, you should definitely be paying attention to if and how the outcome of this relief will change compounding interest. Who knows, if things go well you might even be able to afford to have a kid or buy a home! No, really, people are pushing major decisions off until their student loans get situated. Prepare those baby bottles!

White House Proposes ‘Student Loan Safety Net’ Amid Debt Forgiveness Legal Battle [PBS.org]

Chris Williams became a social media manager and assistant editor for Above the Law in June 2021. Prior to joining the staff, he moonlighted as a minor Memelord™ in the Facebook group Law School Memes for Edgy T14s. He endured Missouri long enough to graduate from Washington University in St. Louis School of Law. He is a former boatbuilder who cannot swim, a published author on critical race theory, philosophy, and humor, and has a love for cycling that occasionally annoys his peers. You can reach him by email at cwilliams@abovethelaw.com and by tweet at @WritesForRent.

For more of the latest in litigation, regulation, deals and financial services trends, sign up for Finance Docket, a partnership between Breaking Media publications Above the Law and Dealbreaker.

Now, we may not see a dime of it.

A plethora of legal cases aim to prevent the use of federal funds for student loan forgiveness. Two of which could offer the Supreme Court an opportunity to erase our doubts about how much help we can expect with paying these damned things off.

The first case that blocked the program and will now be reviewed by the Supreme Court is Biden v. Nebraska from the 8th Circuit Court of Appeals, which covers states in the mid- to north-central U.S.

To everyone living in the mid- to north central U.S. intensely interested in the outcome of this case, I am truly sorry. Going to Nebraska-Lincoln and having a mascot that’s literally just All Might in a red cowboy hat is rough enough, but having to also live in the middle of the country? Forget student loan forgiveness. I forgive you of whatever spiritual burden makes you live in an aggregate of states where one of the coolest things going for it is that time T-Pain pronounced Wisconsin wrong.

A group of six Republican-led states challenged Biden’s program, arguing the debt relief would harm their states economically due to the loss of tax revenue and other profits from working relationships state entities have with some loan servicers.

The 8th Circuit issued a temporary injunction in November to halt the program until the legality of the debt relief is decided. The Supreme Court said in December it would hear the case, putting the program on hold until then.

I’m not sure how it would factor into the justices’ decisions, but I really do hope counsel finds a way to squeeze in the fact that burdensome student loan payments are the reason that 61% of millennials have delayed buying a home — That harms states in the form of new housing construction and lost tax revenue too.

The second case is a little more interesting to me.

Department of Education v. Brown, that ruled Biden’s program illegal came out of the 5th Circuit Court of Appeals.

The case was brought by two individuals, backed by the Jobs Creators Network Foundation, with a Texas district judge saying Biden does not have the power to create this program.

The 5th Circuit Court of Appeals upheld the district ruling in November, with the Supreme Court also announcing in December it will hear the merits of this case.

Might be a bit nerdy of me, but I appreciate a good separation of powers discussion. And yes, separations of powers debates usually boil down to some clear abuse of text like the independent state legislature theory, but there’s the rub.

What I do not appreciate is waiting — while there is no clear delivery date for the opinion, we’ll probably have to wait until the middle of the year to figure out if what the Sallie Mae budget is going to look like. Praying for no whammies.

Where Student Loan Forgiveness Stands: Legal Fight Shifts To Supreme Court [The Hill]

Chris Williams became a social media manager and assistant editor for Above the Law in June 2021. Prior to joining the staff, he moonlighted as a minor Memelord™ in the Facebook group Law School Memes for Edgy T14s. He endured Missouri long enough to graduate from Washington University in St. Louis School of Law. He is a former boatbuilder who cannot swim, a published author on critical race theory, philosophy, and humor, and has a love for cycling that occasionally annoys his peers. You can reach him by email at cwilliams@abovethelaw.com and by tweet at @WritesForRent.

For more of the latest in litigation, regulation, deals and financial services trends, sign up for Finance Docket, a partnership between Breaking Media publications Above the Law and Dealbreaker.

Now, to be clear, I’ve explained many times before, in other posts, why people who freaked out about how Twitter handled the Hunter Biden laptop story are getting confused, but it’s usually been a bit buried. I had already started a version of this post last week, since people keep bringing up Twitter and the laptop, but then on Friday, Elon (sorta) helped me out by giving a bunch of documents to reporter Matt Taibbi.

So, let’s review some basics before we respond to the various wrong statements people have been making. Since 2016, there have been concerns raised about how foreign nation states might seek to interfere with elections, often via the release of hacked or faked materials. It’s no secret that websites have been warned to be on the lookout for such content in the leadup to the election — not with demands to suppress it, but just to consider how to handle it.

Partly in response to that, social media companies put in place various policies on how they were going to handle such material. Facebook set up a policy to limit certain content from trending in its algorithm until it had been reviewed by fact-checkers. Twitter put in place a “hacked materials” policy, which forbade the sharing of leaked or hacked materials. There were — clearly! — some potential issues with that policy. In fact, in September of 2020 (a month before the NY Post story) we highlighted the problems of this very policy, including somewhat presciently noting the fear that it would be used to block the sharing of content in the public interest and could be used against journalistic organizations (indeed, that case study highlights how the policy was enforced to ban DDOSecrets for leaking police chat logs).

The morning the NY Post story came out there was a lot of concern about the validity of the story. Other news organizations, including Fox News, had refused to touch it. NY Post reporters refused to put their name on it. There were other oddities, including the provenance of the hard drive data, which apparently had been in Rudy Giuliani’s hands for months. There were concerns about how the data was presented (specifically how the emails were converted into images and PDFs, losing their header info and metadata).

The fact that, much later on, many elements of the laptops history and provenance were confirmed as legitimate (with some open questions) is important, but does not change the simple fact that the morning the NY Post story came out, it was extremely unclear (in either direction) except to extreme partisans in both camps.

Based on that, both Twitter and Facebook reacted somewhat quickly. Twitter implemented its hacked materials policy in exactly the manner that we had warned might happen a month earlier: blocking the sharing of the NY Post link. Facebook implemented other protocols, “reducing its distribution” until it had gone through a fact check. Facebook didn’t ban the sharing of the link (like Twitter did), but rather limited the ability for it to “trend” and get recommended by the algorithm until fact checkers had reviewed it.

To be clear, the decision by Twitter to do this was, in our estimation, pretty stupid. It was exactly what we had warned about just a month earlier regarding this exact policy. But this is the nature of trust & safety. People need to make very rapid decisions with very incomplete information. That’s why I’ve argued ever since then that while the policy was stupid, it was no giant scandal that it happened, and given everything, it was not a stretch to understand how it played out.

Also, importantly, the very next day Twitter realized it fucked up, admitted so publicly, and changed the hacked materials policy saying that it would no longer block links to news sources based on this policy (though it might add a label to such stories). The next month, Jack Dorsey, in testifying before Congress, was pretty transparent about how all of this went down.

All of this seemed pretty typical for any kind of trust & safety operation. As I’ve explained for years, mistakes in content moderation (especially at scale) are inevitable. And, often, the biggest reason for those mistakes is the lack of context. That was certainly true here.

Yet, for some reason, the story has persisted for years now that Twitter did something nefarious, engaging in election interference that was possibly at the behest of “the deep state” or the Biden campaign. For years, as I’ve reported on this, I’ve noted that there was literally zero evidence to back any of that up. So, my ears certainly perked up last Friday when Elon Musk said that he was about to reveal “what really happened with the Hunter Biden story suppression.”

Certainly, if there was evidence of something nefarious behind closed doors, that would be important and worth covering. If it was true that through discussions I’ve had with dozens of Twitter employees over the past few years every single one of them lied about what happened, well, that would also be useful for me to know.

And then Taibbi revealed… basically nothing of interest. He revealed a few internal communications that… simply confirmed everything that was already public in statements made by Twitter, Jack Dorsey’s Congressional testimony, and in declarations made as part of a Federal Elections Commission investigation into Twitter’s actions. There were general concerns about foreign state influence campaigns, including “hack and leak” in the lead up to the election, and there were questions about the provenance of this particular data, so Twitter made a quick (cautious) judgment call and implemented a (bad) policy. Then it admitted it fucked up and changed things a day later. That’s… basically it.

And, yet, the story has persisted over and over and over again. Incredibly, even after the details of Taibbi’s Twitter thread revealed nothing new, many people started pretending that it had revealed something major, with even Elon Musk insisting that this was proof of some massive 1st Amendment violation:

Now, apparently more files are going to be published, so something may change, but so far it’s been a whole lot of utter nonsense. But when I say that both here on Techdirt and on Twitter, I keep seeing a few very, very wrong arguments being made. So, let’s get to the debunking:

1. If you said Twitter’s decision to block links to the NY Post was election interference…

You’re wrong. Very much so. First off, there was, in fact, a complaint to the FEC about this very point, and the FEC investigated and found no election interference at all. It didn’t even find evidence of it being an “in-kind” contribution. It found no evidence that Twitter engaged in politically motivated decision making, but rather handled this in a non-partisan manner consistent with its business objectives:

Twitter acknowledges that, following the October 2020 publication of the New York Post articles at issue, Twitter blocked users from sharing links to the articles. But Twitter states that this was because its Site Integrity Team assessed that the New York Post articles likely contained hacked and personal information, the sharing of which violated both Twitter’s Distribution of Hacked Materials and Private Information Policies. Twitter points out that although sharing links to the articles was blocked, users were still permitted to otherwise discuss the content of the New York Post articles because doing so did not directly involve spreading any hacked or personal information. Based on the information available to Twitter at the time, these actions appear to reflect Twitter’s stated commercial purpose of removing misinformation and other abusive content from its platform, not a purpose of influencing an election

All of this is actually confirmed by the Twitter Files from Taibbi/Musk, even as both seem to pretend otherwise. Taibbi revealed some internal emails in which various employees (going increasingly up the chain) discussed how to handle the story. Not once does anyone in what Taibbi revealed suggest anything even remotely politically motivated. There was legitimate concern internally about whether or not it was correct to block the NY Post story, which makes sense, because they were (correctly) concerned about making a decision that went too far. I mean, honestly, the discussion is not only without political motive, but shows that the trust & safety apparatus at Twitter was concerned with getting this correct, including employees questioning whether or not these were legitimately “hacked materials” and questioning whether other news stories on the hard drive should get the same treatment.

There are more discussions of this nature, with people questioning whether or not the material was really “hacked” and initially deciding on taking the more cautious approach until they knew more. Twitter’s Yoel Roth notes that “this is an emerging situation where the facts remain unclear. Given the SEVERE risks here and lessons of 2016, we’re erring on the side of including a warning and preventing this content from being amplified.”

Again, exactly as has been noted, given the lack of clarity Twitter reasonably decided to pump the brakes until more was known. There was some useful back-and-forth among employees — the kind that happens in any company regarding major trust & safety decisions, in which Twitter’s then VP of comms questioned whether or not this was the right decision. This shows a productive discussion — not anything along the lines of pushing for any sort of politically motivated outcome.

And then deputy General Counsel Jim Baker (more on him later, trust me…) chimes in to again highlight exactly what everyone has been saying: that this is a rapidly evolving situation, and it makes sense to be cautious until more is known. Baker’s message is important:

I support the conclusion that we need more facts to assess whether the materials were hacked. At this stage, however, it is reasonable for us to assume that they may have been and that caution is warranted. There are some facts that indicate that the materials may have been hacked, while there are others indicating that the computer was either abandoned and/or the owner consented to allow the repair shop to access it for at least some purposes. We simply need more information.

Again, all of this is… exactly what everyone has said ever since the day after it happened. This was an emerging story. The provenance was unclear. There were some sketchy things about it, and so Twitter enacted the policy because they just weren’t sure and didn’t have enough info yet. It turned out to be a bad call, but in content moderation, you’re going to make some bad calls.

What is missing entirely is any evidence that politics entered this discussion at all. Not even once.

2. But Twitter’s decision to “suppress” the story was a big deal and may have swung the election to Biden!

I’m sorry, but there remains no evidence to support that silly claim either. First off, Twitter’s decision actually seemed to get the story a hell of a lot more attention. Again, as noted above, Twitter did nothing to stop discussion of the story. It only blocked links to one story in the NY Post, and only for that one day. And the very fact that Twitter did this (and Facebook took other action) caused a bit of a Streisand Effect (hey!) which got the underlying story a lot more attention because of the decisions by those two companies.

The reality, though, is that the story just wasn’t that big of a deal for voters. Hunter Biden wasn’t the candidate. His father was. Everyone already pretty much knew that Hunter is a bit of a fuckup and clearly personally profiting off of the situation, but there was no actual big story in the revelations (I mean, yeah, there are still some people who insist there are, but they’re the same people who misunderstood the things we’re debunking here today). And, if we’re going to talk about kids of Presidents profiting off of their last name, well, there’s a pretty long list to go down….

But don’t take my word for it, let’s look at the evidence. As reporter Philip Bump recently noted, there’s actual evidence in Google search trends that Twitter and Facebook’s decision really did generate a lot more interest in the story. It was well after both companies took action that searches on Google for Hunter Biden shot upward:

Also, soon after, Twitter reversed its policy, and there was widespread discussion of the laptop in the next three weeks leading up to the election. The brief blip in time in which Twitter and Facebook limited the story seemed to have only fueled much more interest in it, rather than “suppressing” it.

Indeed, another document in the “Twitter Files” highlights how a Democratic member of the House, Ro Khanna, actually reached out to Twitter to point this out and to question Twitter’s decision (if this was really a big Democratic conspiracy, you’d think he’d be supportive of the move, rather than critical of it, but the reverse was true.) Rep. Khanna’s email to Twitter noted:

I say this as a total Biden partisan and convinced he didn’t do anything wrong. But the story has now become more about censorship than relatively innocuous emails and it’s become a bigger deal than it would have been.

So again, the evidence actually suggests that the story wasn’t suppressed at all. It got more attention. It didn’t swing the election, because most people didn’t find the story particularly revealing.

3. The government pressured Twitter/Facebook to block this story, and that’s a huge 1st Amendment violation / treason / crime of the century / etc.

Yeah, so, that’s just not true. I’ve spent years calling out government pressure on speech, from Democrats (and more Democrats) to Republicans (and more Republicans). So I’m pretty focused on watching when the government goes over the line — and quick to call it out. And there remains no evidence at all of that happening here. At all. Taibbi admits this flat out:

Incredibly, I keep seeing people on Twitter claim that Taibbi said the exact opposite. And you have people like Glenn Greenwald who insist that Taibbi only meant “foreign” governments here, despite all the evidence to the contrary. If he had found evidence that there was US government pressure here… why didn’t he post it? The answer: because it almost certainly does not exist.

Some people point to Mark Zuckerberg’s appearance over the summer on Joe Rogan’s podcast as “proof” that the FBI directed both companies to suppress the story, but that’s not at all what Zuckerberg said if you listened to his actual comments. Zuckerberg admits that they make mistakes, and that it feels terrible when they do. He goes into a pretty detailed explanation of some of how trust & safety works in determining whether or not a user is authentic. Then Rogan asks about the laptop story, and Zuckerberg says:

So, basically, the background here, is the FBI basically came to us, some folks on our team, and were like “just so you know, you should be on high alert, we thought there was a lot of Russian propaganda in the 2016 election, we have it on notice, basically, that there’s about to be some kind of dump that’s similar to that. So just be vigilant.”

This does not say that the FBI came to Facebook and said “suppress the Hunter Biden laptop story.” It was just a general warning that the FBI had intelligence that there might be some foreign influence operations, and to “be vigilant.”

This is nearly identical to what Twitter’s then head of “site integrity,” Yoel Roth, noted in his declaration in the FEC case discussed above:

“[F]ederal law enforcement agencies communicated that they expected ‘hack-and-leak operations’ by state actors might occur in the period shortly before the 2020 presidential election . . . . I also learned in these meetings that there were rumors that a hack-and-leak operation would involve Hunter Biden.”

Basically the FBI is saying, in general, they have some intelligence that this kind of attack may happen, so be careful. It did not say to censor the info. It didn’t involve any threats. It wasn’t specifically about the laptop story.

And, in fact, as of earlier this week, we now have the FBI’s version of these events as well! That’s because of the somewhat silly lawsuit that Missouri and Louisiana filed against the Biden administration over Twitter’s decision to block the NY Post story. Just this week, Missouri released the deposition of FBI agent, Elvis Chan, who is often found at the center of conspiracy theories regarding “government censorship.”

And Chan tells basically the same story with a few slight differences, mostly in terms of framing. Specifically, Chan says that he never told the companies to “expect” a hack and leak attack, but rather to be aware of the possibility, slightly contradicting Roth’s declaration:

Yeah, I don’t know what Mr. Roth meant or meant, but what I’m letting you know is that from my recollection — I don’t believe we would have worded it so strongly to say that we expected there to be hacks. I would have worded it to say that there was the potential for hacks, and I believe that is how anyone from our side would have framed the comment.

And the reason I believe that is because I and the FBI, for that matter the U.S. intelligence community, was not aware of any successful hacks against political organizations or political campaigns.

You don’t think that intelligence officials described it in the way that Mr. Roth does here in this sentence in the affidavit?

Yeah, I would not have — I do not believe that the intelligence community would have expected it. I said that they would have been concerned about the potential for it.

In the deposition, Chan repeats (many, many times) that he wouldn’t have used the language saying such an effort would be “expected” but that it was something to look out for.

He also doesn’t recall Hunter Biden’s name even coming up, though he does say they warned them to be on the lookout for discussions on “hot button” issues, and notes that the companies themselves would often ask about certain scenarios:

So from my recollection, the social media companies, who include Twitter, would regularly ask us, “Hey, what kind of content do you think the nation state actors, the Russians would post,” and then they would provide examples. Like, “Would it be X” or “Would it be Y” or “Would it be Z.” And then we — I and then the other FBI officials would say, “We believe that the Russians will take advantage of any hot-button issue.” And we — I do not remember us specifically saying “Hunter Biden” in any meeting with Twitter.

Later on he says:

Yeah, in my estimation, we never discussed Hunter Biden specifically with Twitter. And so the way I read that is that there are hack-and-leak operations, and then at the time — at the time I believe he flagged one of the potential current events that were happening ahead of the elections.

You believe that he, Yoel Roth, flagged Hunter Biden in one of these meetings?

No. I believe — I don’t believe he flagged it during one of the meetings. I just think that — so I don’t know. I cannot read his mind, but my assessment is because I don’t remember discussing Hunter Biden at any of the meetings with Twitter, that we didn’t discuss it.

So this would have been something that he would have just thought of as a hot-button issue on his own that happened in October.

He goes into great detail about meeting with tons of companies, but notes that mostly he’d talk to them about cybersecurity threats, not disinformation. He talks a bit about Russian disinformation campaigns, highlighting the well known Internet Research Agency, which specialized in pushing divisive messaging on US social media platforms. However, he basically confirms that he never discussed the laptop with anyone at any of these companies, and the deposition makes it pretty clear that if anyone at the FBI would have done so, it either would have been Chan himself or done with Chan’s knowledge.

As for the NY Post story, and the laptop itself, he notes he found out about it through the media, just like everyone else. And then he says that he didn’t talk with anyone at Twitter or Facebook about it, despite being their main contact on these kinds of issues.

Q. It’s your testimony that those news articles are the first time that you became aware that — you became aware of Hunter Biden’s laptop in any connection?

Yes. I don’t remember if it was a New York Post article or if it was another media outlet, but it was on multiple media outlets, and I can’t remember which article I read.

And before that day, October 14th, 2020, were you aware — were you aware of Hunter Biden — had anyone ever mentioned Hunter Biden’s laptop to you?

No.

[….]

Do you know if anyone at Twitter reached out to anyone at the FBI to check or verify anything about the Hunter Biden story?

I am not aware of any communications between Yoel Roth and the FBI about this topic.

Are you aware of any communications between anyone at Twitter and anyone in the federal government about the decision to suppress content relating to the Hunter Biden laptop story once the story had broken?

I am not aware of Mr. Roth’s discussions with any other federal agency. As I mentioned, I am not aware of any discussions with any FBI employees about this topic as well. But I only know who I know. So I don’t — he may have had these conversations, but I was not aware of it.

You mentioned Mr. Roth. How about anyone else at Twitter, did anyone else at Twitter reach out, to your knowledge, to anyone else in the federal government?

So I can only answer for the FBI. To my knowledge, I am not aware of any Twitter employee reaching out to any FBI employee regarding this topic.

/ How about Facebook, other than that meeting you referred to where an analyst asked the FBI to comment on the Hunter Biden investigation, are you aware of any communications between anyone at Facebook and anyone at the FBI related to the Hunter Biden laptop story?

No.

How about any other social media platform?

No.

How about Apple or Microsoft?

No.

Basically, the exact same story emerges no matter how you look at it. The FBI, along with CISA, would have various meetings with internet companies mainly to warn them about cybersecurity (i.e., hacking) threats, but also generally mentioned the possibility of hack and leak attempts with a general warning to be on the lookout for such things, and that they may touch on “hot button” social and news topics. Nowhere is there any indication of pressure or attempts to tell the companies what to do, or how they should handle it. Just straight up information sharing.

When you look at all three statements — Zuckerberg’s, Roth’s, and Chan’s — basically the same not-very-interesting story emerges. The US government had some general meetings that happen with lots of big companies to warn them about various potential cybersecurity threats, and the issue of hack-and-leak campaigns as a general possibility came up with no real specifics and no warnings.

And no one communicated with the companies directly about the NY Post story.

Given all that, I honestly don’t see how there’s any reasonable concern here. There’s certainly no clear 1st Amendment concern. There appears to be zero in the way of government involvement or pressure. There’s no coercion or even implied threats. There’s literally nothing at all (no matter how Missouri’s Attorney General completely misrepresents it).

Indeed, the only thing revealed so far that might be concerning regarding the 1st Amendment is that Taibbi claimed that the Trump administration allegedly made demands of Twitter.

If the Trump administration actually had sent requests to “remove” tweets (as Taibbi claims in an earlier tweet) that would most likely be a 1st Amendment issue. However, Taibbi reveals no such requests, which is really quite remarkable. It is also possible that Taibbi is overselling these claims, because this is a part of a discussion that we’ll get to in the next section, regarding Twitter’s flagging tools, which anyone (including you or me) can use to flag content for Twitter to review to see if it violates the company’s terms of service. While there are certainly some concerns about the government’s use of such tools, unless there’s some sort of threat or coercion, and as long as Twitter is free to judge the content for itself and determine how to handle it under its own terms, there’s probably no 1st Amendment issue.

Indeed, some people have highlighted the fact that the government gets “special treatment” in having its flags reviewed. But, from people I’ve spoken to, that actually goes against the “1st Amendment violation!” argument, because many social media companies set up special systems for government agents not to enable “moar censorship!” but because they know they have to be extra vigilant in reviewing those requests so as not to take down content mistakenly based on a government request.

So, sorry, so far there appears to be no government intrusion, and certainly no 1st Amendment violation.

4. The Biden campaign / Democrats demanded Twitter censor the NY Post! And that’s a 1st Amendment violation / treason / the crime of the century / etc.

So, again, the only way that there’s a 1st Amendment violation is if the government issued the demand. And in October of 2020, the Biden campaign and the Democratic National Committee… were not the government. The 1st Amendment does not restrict their ability, as private citizens (even while campaigning for public office) to flag content for Twitter to review against its policies. Hilariously, Elon Musk seems kinda confused about how time works. That tweet that we screenshotted about about the “1st Amendment” violation is in response to an internal email that Taibbi revealed about what Taibbi (misleadingly) says are “requests from connected actors to delete tweets” followed by a screenshot of Twitter employees listing out some tweets saying “more to review from the Biden team” and someone responding “handled these.”

There was then the next tweet which was a similar set of two tweets sent over from the Democratic National Committee (as compared to the Biden campaign in the first one). This includes a tweet from the actor James Woods, which the Twitter team calls special attention to for being “high profile.”

Except, as a few enterprising folks discovered when looking up those tweets listed, they were… basically Hunter Biden nude images that were found on the laptop hard drive, which clearly violated Twitter’s terms of service (and likely violated multiple state laws regarding the sharing of nonconsensual nude images). This includes the James Woods tweet, which included a fake Biden campaign ad that showed a naked picture of Hunter Biden lying on a bed with his (only slightly blurred) penis quite visible. I’m not going to share a link to the image.

A good investigative reporter might have looked up what was in those tweets before posting a conspiratorial post implying that these were attempts by the campaign to remove the NY Post story or some other important information. But Taibbi did not. Nor has he commented on it since.

On top of that, while Taibbi claims that these were “requests to delete,” as the Twitter email quite clearly says, these are for Twitter to “review.” In other words, these were flagged for Twitter to review if they violate Twitter’s policies as the naked images clearly do.

So, there’s clearly no 1st Amendment concern here because, despite Musk’s understanding of the space-time continuum, the Biden administration was not in the White House in October of 2020. Second, even if we’re concerned about political campaigns asking for content to be deleted, flagging content for companies to review to see if they violate policies is not (in any way) the same as demanding it be deleted. Anyone can flag content. And then the company reviews it and makes a determination.

Even more importantly, nothing revealed so far suggests that the campaign had anything to say to Twitter regarding the NY Post story or any story regarding the laptop. Literally the only concerns raised were about the naked pictures.

Finally, as noted above, the only other Democrat mentioned so far in the Twitter files is Rep. Ro Khanna who told Twitter it was wrong to stop the links to the NY Post article, and urged them to rescind the decision in the name of free speech. That does not sounds like the Democrats secretly pressuring the company to block the story. It kinda sounds like the exact opposite.

So despite what everyone keeps yelling on Twitter (including Elon Musk) this still doesn’t appear to be evidence of “censorship” or even “suppression of the Hunter Biden laptop story.” It’s just focused on the nonconsensual sharing of Hunter’s naked images.

As a side note, Woods has now said he’s going to sue over this, though for the life of me I have no idea what sort of claim he thinks he has, or how it’s going to go over in court when he claims his rights were violated when he was unable to share Hunter’s dick pic.

5. But Jim Baker! He worked for the FBI! And he was in charge of the Twitter files! Clearly he’s covering up stuff!

Here we are ripping from the stupidity headlines. This one came out just last night as Taibbi added a “supplement” to the Twitter files, again seemingly confused about how basically anything works. According to Taibbi in a very unclear and awkwardly worded thread, he and Bari Weiss (another opinion columnist who Musk has decided to share the files with) were having some sort of “complication” in accessing the files. Taibbi claims that Twitter’s Deputy General Counsel, Jim Baker, was reviewing the files, and somehow this was as problem (he does not explain why or how, though there’s a lot of conjecture).

Baker is, in fact, the former General Counsel at the FBI. It made news when he was hired.

Baker was subject to a bunch of conspiracy theory stuff a few years ago regarding the FBI and some of the sillier theories regarding the Trump campaign, including the Steele Dossier and the even sillier “Alfa Bank” story (which had always been silly and lots of people, including us, had mocked when it came out).

But despite all that, there’s really little evidence that Baker has done anything particularly noteworthy here. The stuff about his actions while at the FBI is totally overblown partisan hackery. People talk about the so-called “criminal investigation” he faced for his work looking into Russian interference in the 2020 election, but that appears to be something mostly cooked up by extreme Trumpists in the House and appears to have gone nowhere. And, yes, he was a witness at the Michael Sussman trial, which was sorta connected to the Alfa Bank stuff, but his testimony supported John Durham, not Michael Sussman, in that he claimed that Sussman made a false statement to him, which the entire case hinged on (and, for what it’s worth, the trial ended in acquittal).

In other words, almost all of the FBI-related accusations against Baker are entirely “guilt by association” type claims, with nothing at all legitimate to back them up.

As for Twitter, we already highlighted Baker’s email that Taibbi revealed, which shows a normal, thoughtful, cautious discussion of a normal trust & safety debate, with nothing even remotely political.

The latest claims from Taibbi and Weiss also don’t make much sense. Elon Musk has told his company to hand over a bunch of internal documents to reporters. Any corporate lawyer would naturally do a fairly standard document review before doing so to make sure that they’re not handing over any private information or something else that might create legal issues for Musk. And since a large chunk of the legal team has left the company, it wouldn’t be all that surprising if the task ended up on Baker’s desk.

Now, you can argue (as Taibbi and others now imply) that there’s some massive conflict of interest here, but, uh… that’s not at all clear, and not really how conflict of interest works. And, again, there’s little indication that Baker had a major role here at all, beyond being one of many who weighed in on this matter (and did so in a perfectly reasonable manner).

Honestly, Baker not reviewing the documents first would have potentially put him in legal jeopardy for not doing the very basic function of his job in making sure the company he worked for didn’t put itself in serious legal jeopardy by revealing things that might create huge liabilities for Musk and the company.

Either way, late Tuesday, Musk announced that Baker had “exited” from the company, and when asked by a random Twitter user if he had been “asked to explain himself first” Musk claimed that Baker’s “explanation was… unconvincing.”

And perhaps there’s something more here that will be revealed by Weiss now that the shackles have been removed. But, based on what’s been stated so far, a perfectly plausible explanation is that Musk confronted Baker wanting to know why he was holding back the files and what his role was in “suppressing” the NY Post story. And Baker told him, truthfully, that his role was exactly as was revealed in the email (giving his general thoughts on the proper approach to handling the story) and that he was reviewing documents because that’s his job, and Musk got mad and fired him.

Somewhat incredibly, Musk also seemed to imply he only learned of Baker’s involvement on Sunday.

Some people are claiming that Musk is saying he only discovered that Baker worked for him on Sunday, which is possible but seems unlikely. Conspiracy theorists had pointed out Baker’s role at the company to Musk as far back as April. A more charitable explanation is that Musk only discovered that Baker was handling the document review on Sunday. And I guess that’s plausible but, again, really only reflects extremely poorly on Musk.

If he’s going to reveal internal documents to reporters, especially ones that Musk himself keeps claiming implicate him in potential criminal liability (yes, it happened before his time, but Musk purchased the liabilities of the company as well), it’s not just perfectly normal, but kinda necessary to have lawyers do some document review. Again, as a more charitable explanation, perhaps Musk just wanted a different lawyer to do the review, and my only answer there is maybe he shouldn’t have gotten rid of so many lawyers from the legal team. Might have helped.

So, look, there could be a possible issue here, but given how much has been totally misrepresented throughout this whole process, without any actual evidence to support the “Jim Baker mastermind” theory, it’s difficult to take it even remotely seriously when there’s a perfectly normal, non-nefarious explanation to how all of this went down.

The absence of evidence is not evidence that there’s a coverup. It might just be evidence that you’re prone to believing in unsubstantiated conspiracy theories, though.

6. Still, all this proved that Twitter is “illegally” biased towards Democrats!

Taibbi made a big deal out of the fact that Twitter employees overwhelmingly donated to Democrats in their political contributions, which is not exactly new or surprising. Musk commented on this as well, suggesting sarcastically it was proof of bias at Twitter, but left out that among the companies in the chart he was commenting on… was also Tesla, where over 90% of employee donations went to Democrats.

But, more importantly, it’s not surprising in the least. Employees of many companies lean left. Executives (who donate way more money) tend to lean right. I mean, you can look at a similar chart of executive donations that shows they overwhelmingly go to Republicans. Neither is illegal, or even a problem. It’s just reality.

And companies making editorial decisions are… in fact… allowed to have bias in their political viewpoints. I would bet that if you looked at donations by employees at the NY Post or Fox News, they would generally favor Republicans. Indeed, imagine what would happen if someone took over Fox News and suddenly started revealing (1) communications between Fox News execs and Republican politicians and campaigns and (2) internal editorial meeting notes regarding what to promote. Don’t you think it would be way more biased than what the Twitter files revealed?

Here’s the important point on that: Fox News’ clear bias is not illegal either. And, indeed, if Democrats in Congress held hearings on “Fox News’ bias” and demanded that its top executives appear and explain their editorial decision making in promoting GOP talking points, people should be outraged over the clear intimidation factor, which would obviously be problematic from a 1st Amendment angle. Yet I don’t expect people to get all that worked up about the same thing happening to Twitter, even though it’s actually the same issue.

Companies are allowed to be biased. But the amazing thing revealed in the Twitter files is just how little evidence there is that any bias was a part of the debate on how to handle this stuff. Everything appeared to be about perfectly reasonable business decisions.

And… that’s it. I fear that this story is going to live on for years and years and years. And the narrative full of nonsense is already taking shape. However, I like to work off of actual facts and evidence, rather than fever dreams and misinterpretations. And I hope that you’ll read this and start doing the same.

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Both rulings effectively block the loan-forgiveness plan from moving forward. While the government says it will appeal both decisions, the Department of Education’s website has stopped accepting forgiveness applications. This is a strange move because when the Eighth Circuit issued an emergency order blocking student loan discharges last October, the Department of Education continued to accept forgiveness applications. Why the sudden lack of interest in accepting applications? It could be because the loan-forgiveness plan was simply a political stunt.

What happens in the future is anyone’s guess. Now that the midterm elections have passed and the anticipated Republican red wave turned out to be more like a ketchup stain, it is uncertain how quickly and aggressively the administration will attempt to get these court rulings overturned. Since this is a highly divisive issue with a roughly equal number of voters for and against loan forgiveness, the administration will likely take its time to figure out whether it is better politically to get a decision quickly or use delaying tactics until the next election.

It is highly likely that loan forgiveness was a political tactic to begin with. After all, why did Biden wait until a few months before the elections to announce a student loan forgiveness plan? There was a legal memo from the Legal Services Center of Harvard Law School stating that the president had authority to cancel student loans. Also, there was a preliminary memo from the Department of Education discussing the legality of student loan forgiveness as early as April 2021.

Biden knew for a long time that a unilateral executive action would be challenged in court. Republicans in Congress claimed that loan forgiveness is not only unfair, but also that a decision that would cost at least $400 billion requires congressional approval. Democratic Speaker of the House Nancy Pelosi stated that the president cannot forgive student loans on his own. Even Biden himself questioned whether he had the authority to cancel them on his own.

Indeed, continuing to pursue student loan forgiveness would alienate a large number of voters. But if the administration loses interest in pursuing loan forgiveness, it could upset voters who have made major financial decisions in reliance of the plan. Others may have been financially harmed. For example, some people who held Federal Family Education Loans (FFEL) may have to pay higher interest rates due to consolidating their loans into Direct Loans. Others paid more than the minimum in order to pay the loans early or to be able to skip payments during times of financial hardship without defaulting. By consolidating, they could lose their prepayment credit.

Most people will vote for politicians for many reasons other than student loan forgiveness. But for those who are voting based on this issue alone, they are not likely to want plans or proposals that could be blocked by the courts. They will want results. The administration will need to work with some members of the razor-thin Republican house majority to get congressional approval of a student loan forgiveness plan. The way things are going now, it may be easier than litigation.

It is easy to blame unelected Republican judges for crushing the hopes of millions seeking debt relief. But it is very possible that Biden knew that his loan-forgiveness proposal would be blocked by the courts and moved forward anyway to sway indebted voters. But if the administration wants to continue with pursuing loan forgiveness, single-issue voters will want to see their loan balances reduced before they vote. They are tired of political stunts.

Steven Chung is a tax attorney in Los Angeles, California. He helps people with basic tax planning and resolve tax disputes. He is also sympathetic to people with large student loans. He can be reached via email at stevenchungatl@gmail.com. Or you can connect with him on Twitter (@stevenchung) and connect with him on LinkedIn.

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Here are the key points.

Individual borrowers with student loans held by the federal government will be eligible to have up to $10,000 of their loans forgiven. If they received Pell Grants, then up to $20,000 of their loans will be forgiven. But individuals with income of $125,000 or more or a household with income of $250,000 or more will be ineligible.

There will be a final extension on the pause of repayment and interest accrual until December 31, 2022.

A new rule is being proposed where the monthly income-based repayment amount will be changed to 5% of discretionary income (as calculated) for undergraduate loans. Graduate loans will remain at the current 10%. Borrowers with both undergraduate and graduate loans will pay an averaged rate.

There are many questions because some important details were left out. I will address as many as possible.

Is this really the final extension on the repayment pause? It most likely is. In August 2021, Biden extended the pause until January 31, 2022, and at that time said this would be the final extension. But he reversed himself, citing the Omicron variant.

Midterm elections are coming up. So the usual suspects will vocally make their case to extend the pause again, or they will threaten to stay home on Election Day or use their mail-in ballot as toilet paper.

Despite this, the forgiveness news will likely assuage most people. And by December, elections will be over, so any political threat will be negligible. So unless there is a major October surprise, this is likely to be the final extension.

How will income be calculated to determine eligibility? While this has not yet been confirmed, I have heard from reliable sources that the income reported on your 2020 or 2021 tax returns will determine eligibility. If you meet the income requirement in either year, you are eligible for loan forgiveness. Generally, adjusted gross income (AGI) has been used to determine eligibility.

Unfortunately, there is nothing you can do now to adjust your income numbers as it is now 2022, unless you forgot to include some business expenses in which case you can submit an amended return. However, there is one workaround that might work if your income slightly exceeds the $125,000/$250,000 income maximum. If eligible, you can put money into a retirement account this year and take a deduction for the contribution in 2021. Eligible retirement plans include traditional IRA, SEP-IRAs, and self-employed 401(k) plans.

Will the forgiven loan amount be considered taxable income? No. This is assuming that the loans will be forgiven in 2022, 2023 or possibly even 2024.

Can I do a quick FAFSA loan now for $10,000, use the money to buy meme stocks, and still be eligible for forgiveness? No. Loans taken after June 30, 2022, do not qualify for forgiveness. This is actually important for some older borrowers and will be explained later.

I am on an income-based repayment plan. Will the forgiveness lower my monthly payments? Maybe. Since monthly payments are based on current income and not the loan balance, your monthly payment amount will not change. However, if the forgiveness significantly lowers your overall balance, you might be able to get a lower payment amount by converting to a traditional payment plan.

Do FFELP loans qualify for forgiveness? Unknown. But a decision might be made soon. The Federal Family Education Loan Program (FFELP) loan is a hybrid federal loan. Some FFELP loans are held by the government and thus eligible for forgiveness. But most of these loans were made by banks, and the federal government guarantees these loans to the lenders in case the borrower defaults. These loans are mostly held by older graduates because the program was stopped in 2010. Some people got these loans when they consolidated their loans after graduation because of the low interest rates, typically between 1.5% to 3.5%. Also, FFELP loans are not eligible for the student loan repayment pause although their loans can be converted to a direct loan to qualify.

It is unclear why the government did not specifically include FFELP loans in the forgiveness package. It could be because the federal government does not directly control the management of the loans. But it is arguable that FFELP should be considered loans held by the government not only because of the federal government’s guarantee but also because they were originally federal loans before they were consolidated. Also, FFELP loans are subject to government rules and regulations. For example, they must offer IBR payment plans to borrowers.

There is talk of a workaround by converting the FFELP loan to a direct loan so it will be eligible for forgiveness. However, this should not be done unless there is official confirmation from the federal government. If you do the conversion now, it can be considered a loan made after June 30, 2022, thus making the loan ineligible for forgiveness. Also, your new loan might be subject to a higher interest rate. So if done incorrectly, you can put yourself in a worse financial situation.

So who benefits from the forgiveness program? Basically everyone who qualifies. For some, the forgiveness will not make a serious dent on their overall balance but something is better than nothing.

However, there are some people who will not benefit. First are those who are ineligible due to their income but live in high cost of living areas. $125,000 is a lot of money, but after taxes, rent, and other living expenses, there isn’t much left.

Also, those with large student loan balances and on income-based repayment programs will see little to no benefits. Sure the principal reduction is nice (assuming that is where the forgiveness goes) but if their interest accrual is expected to be $11,000 by the end of 2023, they might wonder whether they are really benefiting from this program.

And of course, the private loan holders who get no forgiveness at all.

There will likely be additional rules and guidance in the future. Hopefully they will make more borrowers eligible for forgiveness.

Steven Chung is a tax attorney in Los Angeles, California. He helps people with basic tax planning and resolve tax disputes. He is also sympathetic to people with large student loans. He can be reached via email at stevenchungatl@gmail.com. Or you can connect with him on Twitter (@stevenchung) and connect with him on LinkedIn.

U.S. President Joe Biden will sign legislation [today] that will eliminate electric vehicle tax credits for most models currently getting up to $7,500 effective.

The White House said Biden will sign legislation to approve the $430 billion climate, health and tax bill on Tuesday. The bill restructures the existing $7,5000 new EV tax credit and creates a new $4,000 rebate for used EVs. It also includes tens of billions of dollars in new loan, tax credit and grant programs for automakers to build cleaner vehicles.

Unfortunately, the bill required some politicking that complicates the promise of getting more electric vehicles in Americans’ hands and on American roads — a requirement of American manufacture.

To get Manchin to go along with the broader bill, the rest of the Senate Democrats agreed that only cars with batteries containing a certain percentage of materials sourced from North America or U.S. trading partners will qualify for the credits moving forward — even though that doesn’t align with manufacturing reality.

Although the auto industry and battery makers are racing to invest in a domestic supply chain, it will be years before those facilities are up and running. For now, the EV supply chain is mostly dominated by China — but any cars using Chinese-made battery components would be disqualified from tax credits under the new bill.…

That will automatically slash the list of eligible vehicles from 72 to about 25, according to the Alliance for Automotive Innovation, an auto industry lobbying group. And when additional sourcing requirements go into effect in 2023, none of today’s EVs would qualify for the full credit, the group says.

It is a little early to tell if this is a win for homegrown production incentives or a loss for consumption of goods that will help the environment. The sourcing limitation will likely slow down the shift toward EVs.

The bill makes any EVs assembled outside North America ineligible for tax credits, which has brought criticism from the European Union, South Korea and many automakers.…

Audi of America, Kia Corp. and Porsche said Friday that buyers of its EVs will lose access to federal tax credits when Biden signs.

Audi said only its Audi plug-in hybrid electric will retain its existing federal credit through the end of 2022.

While you might not be able to get your hands on the newest model of Energizer Hot Rod, keep a look out for last year’s new hotness. There is an increasing demand for used electric vehicles after all — your certified pre-owned electric-guzzling baby is out there if you can stomach not being the first pair of cheeks to grace the driver’s seat!

If You Want An Electric Car, Buy One This Week [Axios]
Biden To Sign Law On Tuesday Cutting Most Current EV Credits [Reuters]

Chris Williams became a social media manager and assistant editor for Above the Law in June 2021. Prior to joining the staff, he moonlighted as a minor Memelord™ in the Facebook group Law School Memes for Edgy T14s. He endured Missouri long enough to graduate from Washington University in St. Louis School of Law. He is a former boatbuilder who cannot swim, a published author on critical race theory, philosophy, and humor, and has a love for cycling that occasionally annoys his peers. You can reach him by email at cwilliams@abovethelaw.com and by tweet at @WritesForRent.

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