For Better or Worse: A time for Family

For Better or Worse: A time for Family

As we reflect on family, consider the following cases:

Inspiration for Inventing on Thanksgiving Day: 

Shafer claims that he invented the subject matter of his patent and reduced it to practice November 24, 1921 (Thanksgiving Day)… . [This was] the first time that his brother, who was a mechanic, and he, had the day off together, they devoted that morning to reducing to practice his discovery.

Brown Instrument Co v. Gen. Electric Co, 35 F. Supp. 29, 30 (E.D.N.Y. 1940), rev’d sub nom. Gen. Elec Co v. Minneapolis-Honeywell Regulator Co, 118 F.2d 278 (2d Cir. 1941) (thermostat patent).

= = =

Protecting Children from Forced Adoption: 

He was a research man prepared to devote his life to discoveries of value to industry. Under [his employment] contract he was, however, if he worked in another laboratory or for another manufacturer, required to assign his discoveries to appellee. This would effectively close the doors of employment to him. Until the end of the [contract term of three years] he was compelled either to work for appellee or turn over the children of his inventive genius to it. Such a contract conflicts with the public policy of the land, which is one that encourages inventions and discourages the exclusion of an employee from engaging in the gainful occupation for which he is particularly fitted for all time, anywhere in the United States.

Guth v. Minnesota Min. & Mfg. Co., 72 F.2d 385, 388–89 (7th Cir. 1934).

= = =

It just sounds bad to terminally disclaim a child: 

Although a terminal disclaimer does not conclusively show that a child patent involves the same cause of action as its parent, the terminal disclaimer is still very relevant to that inquiry.

SimpleAir, Inc. v. Google LLC, 884 F.3d 1160, 1168 (Fed. Cir. 2018).

= = =

As a Family, we are In it Together: 

[T]he FRAND commitment applies to all members of that patent family, unless a specific exclusion has been made.

TCL Commun. Tech. Holdings, Ltd. v. Telefonaktiebolaget LM Ericsson, CV 15-2370 JVS(DFMX), 2017 WL 6611635, at *15 (C.D. Cal. Dec. 21, 2017).

= = =

I’ll buy some consonance for $250:

[T]he sibling patent did not maintain consonance [under Section 121], and therefore the safe harbor provision cannot apply, we hold [the claims] invalid.

St. Jude Med., Inc. v. Access Closure, Inc., 729 F.3d 1369, 1380 (Fed. Cir. 2013).

= = =

Sleeping in your Corset?: 

They were presented to her for use. He imposed no obligation of secrecy, nor any condition or restriction whatever… . The donee of the steels used them for years for the purpose and in the manner designed by the inventor… . According to the testimony of the complainant, the invention was completed and put into use in 1855. The inventor slept on his rights for eleven years.

Egbert v. Lippmann, 104 U.S. 333, 337 (1881).

= = =

Patents & Divorce: 

In a dissolution action, patents are subject to equitable distribution.

Teller v. Teller, 53 P.3d 240, 249 (Haw. 2002).

= = = =


[T]he patent fails to teach how the invention actually achieves lubriciousness.

Ritchie v. Phallix, Inc., 8:06-CV-2128-T-26TGW, 2007 WL 9723903, at *2 (M.D. Fla. Oct. 26, 2007).

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Reflections on Race and Justice: A Video Series from the NC Judicial College

Following the killing of George Floyd, several of North Carolina’s judicial officials joined others across the state and nation in sharing their personal experiences and perspectives on racism, bias, and disparate treatment and in calling for improvements to our justice system. Wake County District Court Judge Ashleigh Dunston recounted in her Fall 2020 State Bar Journal article, Justice Isn’t Always Blind, numerous first-hand accounts from Black judges and attorneys who have endured demeaning and discriminatory treatment in and out of the courtroom. One of the approaches we have taken at the North Carolina Judicial College to promote racial equity is by providing education on implicit bias and about empirical analyses of disparate treatment of and outcomes for minorities. Neither of these approaches adequately imparts the personal pain that many court officials and attorneys themselves have experienced. To give voice to these experiences, we created a video series, Reflections on Race and Justice. Several brave jurists have contributed their personal narratives. Judges who have seen the series have shared with us the impact of their colleagues’ voices and the desire for improvement that it inspires. Our project is ongoing, and we hope to collect many more accounts. If you would like to contribute your own perspective to this project, please contact me at

The post Reflections on Race and Justice: A Video Series from the NC Judicial College appeared first on North Carolina Criminal Law.

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Remand with Guidance

Network-1 Techs., Inc. v. Hewlett-Packard Co. (Fed. Cir. Nov. 20, 2020) (modified opinion) (US6218930 – providing power via ethernet cable)

This case has gone back-and-forth several times.  Here are a few highlights:

  • PTAB instituted IPR on likelihood of invalidity, but then concluded the claims were not proven invalid.
  • Later, in the infringement lawsuit, jury found the claims invalid.
  • Judge Schroeder (E.D.Tex.) rejected the jury verdict – holding that HP was estopped from challenging validity under 35 U.S.C. § 315(e)(2). (Granting renewed motion for JMOL under R.50(b).)
  • Then on appeal, the Federal Circuit vacated JMOL but did not expressly reinstate the jury verdict – seemingly leaving that for Judge Schroeder to decide what to do. (Sept 2020 decision).

An additional problem with Judge Schroeder’s decision below is that he did not rule on Network-1’s conditional motion for new trial as required by R.50©:

If the court grants a renewed motion for judgment as a matter of law, it must also conditionally rule on any motion for a new trial by determining whether a new trial should be granted if the judgment is later vacated or reversed.

Fed. R. Civ. Pro. R. 50©.  In addition to the new trial motion, Judge Schroeder also made no ruling on other substantive JMOL motions filed by Network-1.

The remand order demanded the district court proceed in a manner “consistent” with the appellate decision.  However, Network-1 foresaw some conflict and argument regarding how that order might be interpreted.  In particular, HP wants the district court to simply reinstate the Jury Verdict of invalidity; while Network-1 wants the district court to rule on its alternative JMOL motions or alternatively order a new trial on validity.  As such, Network-1 petitioned the Federal Circuit for a clarifying order:

To avoid any possible confusion on remand, Network-1 respectfully asks the panel to clarify that its remand includes deciding Network-1’s motion for a new trial and addressing Network-1’s remaining arguments for JMOL on validity— including significant evidentiary shortcomings that no court has yet to address given the district court’s estoppel ruling.

Network-1 Petition for panel rehearing.

The court has granted the petition and now expressly stated:

We therefore remand to the district court for further proceedings consistent with this opinion, which include ruling in the first instance on Network-1’s entitlement to JMOL (notwithstanding this court’s holding on estoppel) and its new-trial motion.

Modified opinion (underlined portion is the new part).  The court also explained that the appellate panel “will not consider either Network-1’s alternative grounds for JMOL or its new-trial motion in the first instance.”

In its briefing, HP explained its position that Network-1 had forfeited its right to make its renewed-JMOL motions on sufficiency of the validity evidence because Network-1 had failed to raise that particular challenge in its R.50(a) motion.

[A] party that fails to move for judgment as a matter of law under Rule 50(a) on the basis of insufficient evidence at the conclusion of all of the evidence waives its right to file a post-verdict Rule 50(b) motion, and also waives its right to challenge the sufficiency of the evidence on appeal.

Moss v. Princip, 913 F.3d 508, 522 (5th Cir. 2019).  In its rehearing order, the Federal Circuit did not decide the forfeiture issue, which will be open for debate back before the District Court.  (Note issue of waiver vs forfeiture).

Network-1 had requested that the Federal Circuit order the district court to consider “Network-1’s previously asserted substantive grounds for JMOL” and did not mention the forfeiture issue.  Although not entirely clear, it appears that this requested order might have overcome the potential waiver.  The Federal Circuit was careful to require only examination of Network-1’s “entitlement to JMOL” without requiring that the merits of the motion be considered.

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The Death Star Strategy: Is Trump Contemplating The Ultimate Constitutional Trick Shot?

Below is my column in The Hill on the possibility of contesting electoral certifications by key states. With the adverse ruling in Pennsylvania, the Trump legal team is still pledging new evidence of massive fraud as certifications are completed. The options for the team seem more and more reduced to the ultimate constitutional trick shot in engineering a fight on the floor of Congress.

Here is the column:

The Thursday press conference by President Trump’s legal team left many breathless as Trump counsel Rudy Giuliani alleged a global communist conspiracy to steal the 2020 election. While making passing references to credible election challenges over provisional ballots or “curing” rules, he repeatedly returned to the allegation of a purported massive conspiracy directed by Democrats to change and “inject” votes into state tallies.

It was a strange narrative that seemed to move away from the provable to the unbelievable. The question is, why?

One possibility: to raise sweeping allegations with insufficient time to resolve them in order to force an Electoral College fight. The idea would be to give license to Republican-controlled legislatures to intervene with their own sets of electors or block the submission of any set of electors. Concern over such a strategy was magnified when Trump called key Republican leaders from Michigan’s legislature to the White House on Friday.

Call it the “Death Star strategy.”

In “Star Wars,” a struggling rebellion was in full retreat on every front against an overwhelming force in the Empire. The rebels were left with just one strategy and literally one shot. Luke Skywalker had to skim the surface of the Death Star along a trench and fire a round into a small thermal exhaust port to travel down an air shaft and cause an explosion in the core reactor. Then poof! No more Death Star.

However, if this is the Trump team’s plan, it will make Luke Skywalker’s shot look like a beanbag toss.

The electoral ‘trench’

The “trench,” in this instance, is found in state election systems leading to the electoral equivalent of the “exhaust port” in the Constitution’s Electoral College. It is theElectoral College where the actual election of an American president occurs. Each state certifies votes to the Electoral College — a figure that adds up to the number of members the states have in the two houses of Congress, or 535. (In addition, for Electoral College purposes, the District of Columbia is given three electors, for a total of 538.) Thus, a candidate must have at least 270 electoral votes to become president.

To reach that “exhaust port,” Trump’s legal-team equivalent of X-wing fighters must get all the way down the electoral “trench” by creating challenges to multiple state certifications and deny Joe Biden the 270 threshold or claim those votes for Trump. The Trump team has focused on states such as Arizona, Georgia, Michigan, Nevada and Pennsylvania. If the litigation can create serious doubts over the authentication or tabulation of ballots, the Trump campaign could force fights on the floors of these state legislatures. However, after meeting with the president on Friday, the Michigan legislative leaders dealt that potential strategy a serious blow by saying they are unaware of anything that would change their state’s certification for Biden.

The electoral ‘shaft’

Once litigation introduces doubt as to the validity of the vote, the matter travels down the electoral version of the Death Star’s air shaft to individual state legislatures. This is when things move into some uncertain constitutional physics.

Article II of the Constitution states that electors are appointed “in such Manner as the Legislature thereof may direct.” All but a couple of states have directed that all of their electoral votes will go to the candidate with the greater number of statewide votes. The question is, what happens if legislators decide they cannot say with confidence who won the greater number of votes?

Such controversies have arisen before, as in 2004, when Democrats objected to counting Ohio’s electoral votes due to voting irregularities. The greatest controversy occurred in 1876 after a close, heated election between Republican Rutherford Hayes and Democrat Samuel Tilden. Like Biden, Tilden won the popular vote and more electoral votes (184, to Hayes’s 165). The problem was that rampant fraud was alleged in Florida, Louisiana and South Carolina. (For example, South Carolina reported 101 percent of voters voting). The controversy led to rival sets of electors being sent to Congress. A long fight led to the improbable election of Hayes as president.

For Trump to pull off a similar maneuver, he would need the cooperation of Republican state legislators. He also would face collateral litigation over who should certify electors — a state’s governor or its legislature. In Bush v. Gore in 2000, the Supreme Court ordered an effective halt to further litigation, but that was just one state. It is possible that such multistate litigation could push the challenges beyond the end of the safe-harbor period for certification on Dec. 8 or beyond Dec. 23, when those votes are supposed to be submitted to Congress. Indeed, it could force a fight on Jan. 6, when Congress gathers in joint session to count the votes.

The electoral ‘reactor’

Only then would the action make it into the “core reactor” equivalent of our constitutional system — the joint session of Congress. This would trigger a law passed after the Hayes-Tilden election. Unfortunately, the Electoral Count Act (ECA) of 1887 is hardly a model of clarity and would become the focus of litigation itself. Under some circumstances, Vice President Pence could issue a ruling in favor of Trump, but one senator and one House member could challenge his ruling.

What if there were insufficient votes overall to elect a president? This is where we could see a rare court intervention in a contested election in Congress. The ECA is ambiguous on what it means to have a majority of electors; it does not clearly state whether a majority of “electors appointed” means a majority of the 538 electors (270) or simply a majority of those electors accepted or successfully certified (allowing election with less than 270 electoral votes). There also are untested terms and provisions, ranging from the weight given to the decision of governors and the meaning of what is “lawfully certified” or whether votes were “regularly given.”

There also is the potential under the 12th Amendment for a “contingent election” when there is a tie or insufficient votes. In such a case, Trump could win again. In that case, the vote for president is held in the House based on state delegations, not individual members. Republicans likely will control a majority of state delegations in the House, despite having fewer seats overall — as well as the Senate, where Pence could be reelected.

Again, that is all quite a long shot — a bit more than Luke Skywalker’s boast that he could sink it because he “used to bull’s-eye womp rats in my T-16 back home.” It is enough to make an Ewok weep. All one can say, to paraphrase Han Solo’s parting words before heading out for Death Star, is “Hey, Rudy. May the Force — and the ECA — be with you.”

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can find his updates online @JonathanTurley.

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Democratic Member Files Bar Actions Against Two Dozen Lawyers Challenging Election Results

We have been discussing the campaign of harassment and threats against Republican lawyers to get them to drop election challenges. New Jersey Democratic Rep. Bill Pascrell expanded that campaign this week with a malicious and frivolous demand for New York and other states to disbar roughly two dozen lawyers for representing Trump, the Republican party, or the Trump campaign in the litigation.  While Democratic members and the media discuss attacks on democracy and the rule of law, they appear to have little problem with campaigns to threaten and harass both lawyers and legislators for raising questions about the election.

Many of us criticized Rudy Giuliani for his performance in this litigation, particularly the controversial press conference held last week. Indeed, I have previously criticized Giuliani for his public comments and allegations. However, Pascrell wants Giuliani disbarred specifically for filing these legal actions as well as a host of other lawyers.

Pascrell wrote to the Grievance Committee for three New York Judicial Districts that “Mr. Giuliani has participated in the filing of a series of absurd lawsuits seeking to overturn the will of the voters … and has caused irreversible damage to the public trust in the fair administration of our elections.” Pascrell claimed that filing the cases constitutes “clear” evident that he was violating the state’s Rules of Professional Misconduct that prohibit “dishonesty, fraud, deceit” and “misrepresentations.”

The letters to various state bar associations seems to go out of its way to self-identify as a vicious attack on any lawyers who do not yield to demands that they remove themselves from any election challenges:

“The pattern of behavior by these individuals to effectuate Mr. Trump’s sinister arson is a danger not just to our legal system but is also unprecedented in our national life. In carrying out that perversion, they have clearly violated the … Rules of Professional Conduct they swore to uphold and should face the severest sanction your body can mete out: revocation of their law licensures. The holding of a law license is a sacred responsibility. You have an opportunity here to make a powerful statement in support of our democracy and deter future charlatans and miscreants from warping our legal and political
systems for their own profit.”

As I have previously discussed, it is a familiar campaign that is unfolding without objections from most media figures, lawyers, or law professors. Indeed, this is a campaign that has been led by lawyers against lawyers.

Groups like the Lincoln Project targeted law firms and launched a campaign to force lawyers to abandon Trump or his campaign as a client. This effort resulted in Twitter blocking the Lincoln Project for targeting individual Trump lawyers in a tweet (accompanied by a skull-and-crossbones emoji) that was deemed threatening and abusive. That only seemed to thrill the Lincoln Project. It reportedly joined Democrats in targeting law firms like Porter, Wright, Morris & Arthur and threatening its lawyers with professional ruin. It claimed that any firm working for Trump on election litigation was part of a “dangerous attack on our democracy.” Trying to strip people of their counsel, of course, is the real attack on our democracy — and it worked: The firm buckled and withdrew, saying the pressure caused internal struggles and at least one lawyer’s resignation.

At the same time, Democratic leaders like Michigan’s Attorney General  Dana Nessel have threatened criminal prosecution against those who have posted videos alleging voting fraud and even threatened possible prosecution of legislators who meet with President Trump or raise challenges to the election results.  The media is virtually silent on these threats to coerce lawyers and legislators into silence. That is not viewed as a threat to the rule of law.  The threats against lawyers follows a pattern where Democratic members are calling for blacklists and others denounce any questioning of the Biden victory as akin to “Holocaust denial.” I spoke last week to Republican lawyers who described death threats, doxxing, and continual harassment for their representation in these lawsuits. The message is that if you represent the wrong side you will be denounced, doxxed, and disbarred.

Pascrell is not alone in calling for such bar actions as a new way to pressuring Republican lawyers, particularly after the dismissal of the Pennsylvania lawsuit a couple days ago. However, while the court offered a scathing analysis of the claims, it also found that the individual voters had “adequately pled that their votes were denied” and might be entitled to other relief. However, the court balked at the notion of negating the votes of others in response to such alleged voting errors.  That is not the type of ruling that leads to suspension, let alone disbarment. While the court slammed the Trump campaign on its legal claims, it did not impose sanctions against the lawyers. I agree with the court’s conclusion and I have been critical of claims in some of these lawsuits as facially insufficient to block certification. However, that does not mean that these voters — or their lawyers — should be barred or punished in seeking judicial review.

What Pascrell is doing is undermining our legal system by using his office to advance a campaign targeting lawyers and legislators who raise objections to his party prevailing in the presidential election. As with the Lincoln Project’s campaign, this is raw retaliation and intimidation to deter the use of our legal process. When such actions were taken against lawyers representing civil rights groups and others in the 1960s, it was correctly denounced as an outrageous abuse of our legal system. Now that Republican lawyers are being targeted, it has become a campaign supported members of Congress, thousands of lawyers, and the media.

What Pascrell is doing is a dangerous form of demagoguery that should be denounced by people of good-faith regardless of their political affiliations.

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Maximizing Tax Benefits by Coordinating Spousal Retirement Contributions

Editor’s Note: Today’s post comes from James Enriquez, a tax strategist at Adaptive Tax Planning. Adaptive Tax Planning is a sponsor on the site but is not paying to have this post published. All guest posts, even those from partners, have to meet editorial guidelines to be published. In this article, I thought James had some tax strategy ideas worth discussing when it comes to deciding which spouse should be making retirement account contributions.

Does it matter which spouse is contributing to a retirement account? This is a question we hear often. A lot of the times it doesn’t really matter for tax reasons. On the other hand, there are some nontax reasons why which spouse contributes to retirement matters, but this post will only focus on the tax reasons. While a lot of the times there is no tax difference, there is a tax difference in certain situations. This post will discuss three such scenarios.

IRA deductibility

Every taxpayer that has earned income can make a traditional IRA contribution, but not every taxpayer can take a deduction for said contribution. A married filing joint taxpayer “covered” by an employer sponsored retirement plan at work can deduct a traditional IRA contribution if the couple’s modified adjusted gross income (MAGI) is less than $104,000 in 2020. The deduction is partial for income that falls between $104,000-$124,000, and the deduction is completely disallowed if income is greater than $124,000.

If a spouse is not covered by a retirement plan at work but the other spouse is, the noncovered spouse can take a deduction if the couple’s MAGI is less than $196,000. The deductibility rules get a lot easier if both spouses do not have a retirement plan at work. There is a full deduction. Let’s take a look at an example:

Example: Jack and Jill are married filing joint with a modified adjusted gross income of $150,000. Jack has a pension plan at work, and Jill does not have a retirement plan at work. Jack will not be able to take a deduction if he contributes to an IRA since he has a pension at work and their income is above the threshold. However, the couple would be able to take a deduction if Jill contributes to an IRA since she does not have a workplace retirement plan and their MAGI is below the threshold.

This is a scenario where which spouse makes the traditional IRA contribution can impact their current tax situation.

Big age gap

This tax reason is a long term play with very little current benefits. As the subheading suggests, there could be a potential tax benefit down the road when deciding which spouse should make retirement contributions, and it primarily relates to the delay of Required Minimum Distributions (RMDs). In most cases, RMDs are required to start at 72 years of age, and the distribution amounts are based on a life expectancy table and the account balance on December 31 of the previous year.

In an attempt to limit the tax impact, the younger spouse would contribute to their retirement plan more than the older spouse. Doing so would reduce the size of the older spouse’s retirement account which would also decrease the RMD amount.

Example: Jack just turned 72 and needs to take his RMD, but he doesn’t really want to because Jill, 63, is still working so they’re in a higher tax bracket than what they would be if she was retired.

The smaller Jack’s retirement account is, the smaller the RMD would be. On the flip side, they are making Jill’s account and RMD bigger, but hopefully, those RMDs will be taxed at a lower rate due to the loss of Jill’s employment income.

QBI deduction

The Tax Cuts and Jobs Act has been referred to as the biggest tax reform since 1986. As such, it brought the creation of a new deduction called the “qualified business income” deduction. In a nutshell, it allows up to a 20% deduction of eligible “qualified business income” for owners of sole proprietorships, partnerships, S Corporations, and some trusts and estates. This code section is extremely complex which is outside the scope of this post but will be addressed in a later post.

While we are not going to discuss every provision of the deduction, we should have a basic understanding. Qualified business income is essentially profit. The higher the expenses, the lower the profit. The lower the profit, the lower the QBI. The lower the QBI, the lower the QBI deduction. Couples with a business owner spouse may want to consider the tax impacts before deciding which spouse should contribute to a retirement plan.

Example: Jack and Jill’s AGI is $150,000. Jack is a 72-year-old solo practice attorney with QBI of $100,000, and Jill is a 63-year-old teacher with a $50,000 annual salary. After reviewing their budget, Jack and Jill decide they can afford to save $25,000 per year toward their retirement. They like to keep everything equal so they are thinking about contributing $12,500 each to a retirement account, but they know the limit for traditional IRAs is much lower. So, they visit with a financial advisor.

The financial advisor tells them about a 403b for Jill and a SEP IRA for Jack since he is the only employee of his firm. It sounds good because the retirement contribution deduction is the same if the contributions are made into the 403(b) or SEP, but Jack and Jill decide to run it by their tax pro, too. Their tax pro points out that Jack will be reducing his QBI deduction by contributing to a SEP compared to making the entire $25,000 contribution to Jill’s 403(b).

By contributing $12,500 to Jack’s SEP, he would be reducing his QBI and the deduction to $87,500 ($100,000 QBI – $12,500 SEP contribution) and $17,500 ($87,500 new QBI multiplied by 20%), respectively. If they make the entire $25,000 contribution to Jill’s 403(b), the QBI deduction would be $20,000 ($100,000 QBI multiplied by 20%). That’s not a huge difference, but it could be a bigger difference with bigger numbers.


It is not always a forgone conclusion on which spouse should contribute to a retirement account. It is pretty straight forward a lot of the time, but these are three different scenarios where some proactive tax planning can help decide which spouse should contribute to retirement.

Originally posted on Maximizing Tax Benefits by Coordinating Spousal Retirement Contributions

Biglaw Investor – Personal finances for the aspiring millionaire lawyer

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Patently-O Bits and Bytes by Juvan Bonni

Patently-O Bits and Bytes by Juvan Bonni

Recent Headlines in the IP World:

Commentary and Journal Articles:

New Job Postings on Patently-O:

Patently-O Bits and Bytes by Juvan Bonni published first on

Say It Ain’t So, Joe: CBS Reporter Draws Ire Of Biden For Asking Substantive Question

Erickson asked Biden a question on the way out of the room where Biden was meeting with House Speaker Nancy Pelosi and Senate Minority Leader Chuck Schumer: “Mr Biden, the COVID task force said it’s safe for children to be back in class.”

That would be an important and reasonable question. The CDC is not recommending the closure of schools since studies show an exceptionally low risk for such children. There are serious costs to such closures for both children and their parents ranging from the loss of educational advancement, depression, employment problems, and other issues.

Yet, for the public and press corp, the appearance of a reporter asking an actual substantive question of Biden was like watching Big Foot riding the Lock Ness Monster through conference room. The only evidence that it was real and not a mirage was Biden’s swift rebuke.

It is the type of question that you would expect the president-elect to answer when he is holding forth on his plan for dealing with Covid-19. Biden however again attacked Erickson personally for breaking the unwritten rule against substantive questions: “Why are you the only guy that always shouts out questions?”

That question sums up the situation perfectly. We should all want to know why Erickson is the only guy (other than Peter Doocy) who is asking such questions. Most of the media was openly in the bag for Biden during the campaign. The hope however was that, once he was elected, the media would rediscover a modicum of independence and integrity in their approach to Biden. That will not happen so long as Biden can accurately ask why the Erickson is “the only guy” asking questions.

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Uncured: Federal Judge Dismisses Trump Challenge In Pennsylvania

On Saturday, U.S. District Court Judge Matthew Brann dismissed the challenge filed by the Trump campaign to stop the certification of the vote in Pennsylvania. The court acknowledged that vote negation may have occurred due to different “curing” rules, but balked at the legal and logical basis for blocking certification of the state electoral votes to remedy to such claims. The scathing order described the argument of Trump counsel Rudy Giuliani as a “Frankenstein monster” composed of disparate parts of different legal claims. Notably, the court did find that the “Individual Plaintiffs have adequately pled that their votes were denied.” However, that island of support is lost in a vast ocean of countervailing and caustic findings by the court.

The court started its decision with a haymaker:

“This Court has been unable to find any case in which a plaintiff has sought such a drastic remedy in the contest of an election, in terms of the sheer volume of votes asked to be invalidated. One might expect that when seeking such a startling outcome, a plaintiff would come formidably armed with compelling legal arguments and factual proof of rampant corruption, such that this Court would have no option but to regrettably grant the proposed injunctive relief despite the impact it would have on such a large group of citizens.”

The court slammed the Trump campaign over standing and countervailing precedent.  It described the filing as a “Frankenstein’s Monster… haphazardly stitched together from two distinct theories in an attempt to avoid controlling precedent.”

As the court acknowledged, the Trump campaign expressly accepted that aspects of its argument on standing were precluded by existing precedent but wanted to preserve the issue for appeal. On other issues, however, the court repeatedly slammed the campaign for “trying to mix-and-match claims to bypass contrary precedent.” It said that the effort was “not lost on the Court.”

While the court hits the Trump campaign on its “competitive standing” theory, it also notes:

“To be clear, this Court is not holding that a political campaign can never establish standing to challenge the outcome of an election; rather, it merely finds that in this case, the Trump Campaign has not pled a cognizable theory.”

There are aspects of the opinion that could be challenged on appeal, the Court repeatedly comes back to the primary difficulty facing the campaign: the remedy. The court emphasized the disconnect that it found between any violation and the requested relief. It rejects the notion that it should protect the votes of these individual votes by effectively disenfranchising millions of other voters by blocking certification. It is a “leveling down” approach that the Court find counterintuitive and unsupportable:

“When remedying an equal-protection violation, a court may either “level up” or “level down.”119 This means that a court may either extend a benefit to one that has been wrongfully denied it, thus leveling up and bringing that person on par with others who already enjoy the right, or a court may level down by withdrawing the benefit from those who currently possess it. Generally, “the preferred rule in a typical case is to extend favorable treatment” and to level up. In fact, leveling down is impermissible where the withdrawal of a benefit would necessarily violate the Constitution. Such would be the case if a court were to remedy discrimination by striking down a benefit that is constitutionally guaranteed.”

Despite the strong language of the opinion, it would be a mistake for Giuliani to continue to attack what he claims to be the bias of “Democratic judges.”  I have previously criticized President Trump for such attacks (though Democrats regularly level the same attacks at Republican appointees on the Supreme Court).  While he was appointed by President Barack Obama, Judge Brann is a well-regarded jurist who happens to be a Republican (and long-standing member of the Federalist Society). One can disagree with elements in this decision but it is an overall view, particularly of the relief, that would be shared by many jurists and lawyers.  We need to move away from these personal attacks and focus on the law. Indeed, the attacks by Giuliani on the integrity of such judges undermines his own credibility and that of his client.

The decision will now permit the Trump to appeal to the Third Circuit (and potentially to the United States Supreme Court).

Here is the opinion: Trump v. Boockvar

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Michigan Legislators Face Calls For Possible Criminal Charges After Meeting With President Trump On Certification

We have been discussing the campaign of The Lincoln Project and others to harass and abuse lawyers who represent the Trump campaign or other parties bringing election challenges. Similar campaigns have targeted election officials who object to counting irregularities.  Now, the Michigan Attorney General and others are suggesting that Republicans who oppose certification or even meet with President Donald Trump on the issue could be criminally investigated or charged. Once again, the media is silent on this clearly abusive use of the criminal code target members of the opposing party in their raising objections under state law.

On Friday afternoon, leaders of Michigan’s Republican-controlled state legislature met with Trump in the White House at his invitation.

According to the Washington Post, Dana Nessel “is conferring with election law experts on whether officials may have violated any state laws prohibiting them from engaging in bribery, perjury and conspiracy.”  It is same weaponization of the criminal code for political purposes that we have seen in the last four years against Trump.  Notably, the focus is the same discredited interpretation used against Trump and notably not adopted by the impeachment-eager House Judiciary Committee: bribery.

In Politico, Richard Primus wrote that these legislators should not attend a meeting with Trump because “it threatens the two Michigan legislators, personally, with the risk of criminal investigation.” This ridiculous legal claims is based on the bribery theory:

The danger for Shirkey and Chatfield, then, is that they are being visibly invited to a meeting where the likely agenda involves the felony of attempting to bribe a public official.

Under Michigan law, any member of the Legislature who “corruptly” accepts a promise of some beneficial act in return for exercising his authority in a certain way is “forever disqualified to hold any public office” and “shall be guilty of a felony, punishable by imprisonment in the state prison not more than 10 years[.]”

We repeatedly discussed this theory during the Trump presidency. As I have previously written, a leading proponent has been former prosecutor and Washington Post columnist Randall D. Eliason, who insisted that “allegations of a wrongful quid pro quo are really just another way of saying that there was a bribe … it’s bribery if a quid pro quo is sought with corrupt intent, if the president is not pursuing legitimate U.S. policy but instead is wrongfully demanding actions by Ukraine that would benefit him personally.” Eliason further endorsed the House report and assured that “The legal and factual analysis of bribery and honest services fraud in the House report is exactly right” and “outlines compelling evidence of federal criminal violations.” 

The theory was never “exactly” or even remotely right, as evidenced by the decision not to use it as a basis for impeachment. And yet, it’s back. Indeed, the greatest danger of the theory was not that it would ever pass muster in the federal court system but that it would be used (as here) in the political system to criminalize policy and legal disagreements. (Eliason recently defended the attacks on fellow lawyers who are represented those challenging election results or practices).

In my testimony, I went into historical and legal detail to explain why this theory was never credible.  While it was gleefully presented by papers like the Washington Post, it ignored case law that rejected precisely this type of limitless definition of the offense.  As I told the House Judiciary Committee, the Supreme Court has repeatedly narrowed the scope of the statutory definition of bribery, including distinctions with direct relevance to the current controversy in cases like McDonnell v. United States, where the Court overturned the conviction of former Virginia governor Robert McDonnell. Chief Justice John Roberts eviscerated what he called the “boundless interpretation of the federal bribery statute.” The Court explained the such “boundless interpretations” are inimical to constitutional rights because they deny citizens the notice of what acts are presumptively criminal: “[U]nder the Government’s interpretation, the term ‘official act’ is not defined ‘with sufficient definiteness that ordinary people can understand what conduct is prohibited,’ or ‘in a manner that does not encourage arbitrary and discriminatory enforcement.’” 

I will not repeat the litany of cases rejecting this type of broad interpretation. However, the case law did not matter then and it does not matter now to those who believe that the criminal code is endless flexible to meet political agenda.

It doesn’t even matter that the Supreme Court reaffirmed prior rejections of such broad interpretations in a recent unanimous ruling written by Justice Elena Kagan. In Kelly v. United States, the Supreme Court threw out the convictions in the “Bridgegate” case involving the controversial closing of lanes on the George Washington Bridge to create traffic problems for the mayor of Fort Lee, N.J., who refused to endorse then-Gov. Chris Christie. The Court observed:

“That requirement, this Court has made clear, prevents these statutes from criminalizing all acts of dishonesty by state and local officials. Some decades ago, courts of appeals often construed the federal fraud laws to “proscribe[] schemes to defraud citizens of their intangible rights to honest and impartial government.” McNally, 483 U. S., at 355. This Court declined to go along. The fraud statutes, we held in McNally, were “limited in scope to the protection of property rights.” Id., at 360. They did not authorize federal prosecutors to “set[] standards of disclosure and good government for local and state officials.” Ibid.”

That is the argument that I raised in the impeachment against the proposed articles of impeachment — supported by a host of experts on MSNBC and CNN as well as Democratic members — that the Ukrainian allegations could be charged as mail and wire fraud as well as crimes like extortion.

What is most disturbing is that, if there was an objection to voting irregularities or fraud, these legislators would be acting under their state constitutional authority. They would be investigated for carrying out their official duties under state law. Many of us can disagree with such objections. (I have stated repeatedly that I do not see the evidence of systemic voting problems to reverse such state results). However, when Democrats like Sen. Barbara Boxer (D., Cal.) challenged the certification of Ohio’s electoral votes in 2004, no one suggested criminal investigations. Nessel is threatening state legislators that, if they meet to discuss such objections, they might be targets of criminal investigations. That would seem an effort to use the criminal code for the purposes of intimidation or coercion. Imagine if this was U.S. Attorney General Bill Barr threatening Democratic legislators with possible criminal investigation for challenging Trump votes. The media would be apoplectic. Yet, when used against Republicans, major publications and politicians are celebrated for the use of the criminal code for such politically motivated threats.

As with the attacks on Republican lawyers, the threats against Republican legislators has been met with utter silence in the media. Just the familiar sound of crickets.

Michigan Legislators Face Calls For Possible Criminal Charges After Meeting With President Trump On Certification published first on

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