According to Justice Scalia, Trump’s Lawyers Should Face Sanctions for ‘Litigation Abuse’

The vast majority of Americans now recognize that Joe Biden will be our nation’s next president. Nonetheless, only moments after all the major networks called the election for Biden, Donald Trump issued a defiant statement promising to “prosecute our case in court” and arguing that Biden has been “falsely” declared the winner. It’s not exactly clear what Trump’s legal objection is, but it appears he’ll be arguing that some unspecified number of “illegal” ballots were counted, and also that there’s been a media and pollster conspiracy to mislead the public.

Being a sore loser disgraces the office of the president, but acting disgracefully is not illegal. After all, the president and the few remaining pundits who repeat his totally unsupported ideas can’t easily be punished for lying to the American people. But his lawyers in these promised lawsuits are different than politicians and pundits. As officers of the court, they swear oaths to present only cases that have a “basis in law and fact.”

If the Trump campaign continues to file cases claiming fraud that lack any actual evidence of fraud or malfeasance, its lawyers should be fined, suspended or even disbarred. But don’t take my word for it—take the word of the late conservative hero Justice Antonin Scalia.

Scalia weighed in on this issue in 1993. That year, the Supreme Court adopted amendments to the federal rules of civil procedure, which are the boring, complicated compendium of legal rules that apply in every federal court in the country. Under those rules, a lawyer may not sign a paper that is “being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation.” The rules also state that “the factual contentions” in a legal pleading must either “have evidentiary support” or “will likely have evidentiary support after a reasonable opportunity for further investigation or discovery.”

In sum, it’s against federal law for a lawyer to do what Trump is openly asking his legal team to do: make stuff up about fraud solely to delay, confuse and harass. Courts are broadly authorized to impose sanctions on lawyers for violating these rules, including by issuing fines and suspensions.

So how harsh should judges be in applying these rules? In a 1993 opinion regarding changes to this rule, Scalia wrote that judges should come down hard on lawyers abusing the system in this way. In his view, lawyers who go to court without evidence for their cases should be sanctioned with mandatory fines, and they should not be given any opportunity to correct their errors by withdrawing frivolous filings. “In my view,” he wrote in an opinion expressing little sympathy for lawyers who engaged in what he termed “litigation abuse,” “those who file frivolous suits and pleadings should have no ‘safe harbor.'” Scalia thought that courts must punish this conduct to deter bad behavior and free up the use of the courts’ time to hear legitimate disputes.

It’s particularly important that the courts take Scalia’s advice and deny any “safe harbor” to lawyers who file cases without evidence just to delay or harass, for two main reasons. First, judges cannot allow the president to use the courts to give these baseless claims an aura of legitimacy. Republican House Minority Whip Steve Scalise, for instance, has tweeted that the “election is not final” until the legal “process is resolved.” But if the Trump campaign is just going to file meritless cases every day for the next two months, then, by this standard, the election will never be final. This is nonsense. Judges should not allow the Trump campaign to point to pending lawsuits to let people think that the election is not final, and lawyers who would be a party to this abuse must be sanctioned.

Second, letting lawyers skate by for filing baseless lawsuits is particularly perverse in the middle of the pandemic. Courts are invaluable public resources, and court proceedings have been delayed substantially this year. Trump’s lawyers should not be allowed to clog the already over-taxed state and federal courts with a blitz of baseless litigation that wastes the time of judges and court staff, and costs the taxpayers money. To deter this behavior, the lawyers who dare file cases without evidence must be punished.

To be sure, everyone with a good faith legal claim deserves a day in court. And there are surely a few claims that even Trump can bring in good faith; for instance, if Trump is within the margin of a recount in a particular state, there’s no reason he can’t file suit asking for one—as long as he’s willing to foot the bill if the recount doesn’t change the outcome. But most cases won’t have a prayer, because they are not even supposed to be based in reality. Members of the American Bar Association must be very wary of taking the president up on this campaign of frivolous lawsuits. Judges following in Scalia’s footsteps can, and should, punish the lawyers severely.

YouTube discriminates against LGBT content by unfairly culling it, suit alleges

The Washington Post reported earlier this month that moderators for YouTube are trained to treat the most popular video producers differently than others by, for instance, allowing hateful speech to remain on the site while enforcing their policies more stringently against creators with fewer followers. YouTube denied the claims.

YouTube was buffeted by allegations in June that it failed to act against a popular video creator who repeatedly mocked a journalist for being openly gay and of Mexican descent.

Bria Kam and Chrissy Chambers, whose BriaAndChrissy channel has about 850,000 subscribers, allege that YouTube’s enforcement against their channel reduced their monthly revenue to around $500 from $3,500.

However, according to the lawsuit, YouTube routinely restricts content that is allowable by, among other things, labeling videos aimed at LGBT communities for restricted audiences only or altering thumbnail previews of the videos that serve as enticements for potential viewers.

The lawsuit mentions a BriaAndChrissy music video titled “Face Your Fears,” which features the couple standing in front of anti-gay protesters, kissing. The song lyrics encourage people in the LGBT community to be themselves. “No more hate, no more shame,” the song goes. For reasons that are unclear to the creators, the video has been placed in “restricted mode,” making it invisible to viewers at many schools, libraries or to anyone who has activated the mode meant to limit offensive content.

The couple say these restrictions have “stigmatized” their videos and limited their audience, causing their earnings to dwindle. The lawsuit also says YouTube has allowed anti-gay groups to place obscene advertisements before the BriaAndChrissy videos.

Bret Somers, whose Watts the Safeword channel has about 200,000 subscribers, claims in the suit that his average monthly sales of $6,500 fell to around $300 as a result of YouTube’s actions against him, including restricting most of his videos to small audiences. Somers, in the suit, said that videos such as those describing his experience traveling to events, festivals or conventions do not appear for many viewers. His channel also depicts more adult content such as people watching virtual reality pornography and discussion of sex toys.

Lindsay Amer, another plaintiff and the creator of “Queer Kid Stuff,” says the channel’s videos, meant for kids aged 3 to 17, initially gained traction. But after a neo-Nazi website accused her of encouraging homosexuality, the comments sections underneath the videos were bombarded with hate speech that referred to Amer as a pedophile and attacked the LGBT community. Amer says parents wrote in to say that while they supported the content of Amer’s videos, they would not allow their children to watch them because of the comments.

Trump’s MO: Intimidation, Threats, Insults ..

Trump still thinks he can run the country like he ran his business. Like a wannabe mob boss. Trumps tools that he uses over and over again are intimidation, threats, insults, temper tantrums, lies, lawsuits or threats of lawsuits, walking out of meetings when he doesn’t get his way, refusal to pay his bills, and filing for bankruptcy.

He is not nearly as successful at negotiations at what he thinks he is. He pulls out of signed deals and agreements then wonders why no one wants to work with him.

How a black man ‘outsmarted’ a neo-Nazi group and became their new leader

To understand how Stern came to overtake Schoep’s organization, you first must understand how the Michigan neo-Nazi came to find the California activist.

Stern says that while serving prison time in Mississippi for mail fraud, he formed a relationship with his cellmate and onetime Ku Klux Klan Grand Wizard Edgar Ray Killen. The KKK leader had been convicted in the “Mississippi Burning” killings of three civil rights workers. Though Killen regularly called Stern a racial slur, he nevertheless granted his cellmate power of attorney over his life story and estate.

Stern was paroled from prison in 2011. In 2016, he used his legal discretion to dissolve the Klan organization that Killen once led. That was his first successful infiltration, and the lore of Stern’s relationship with the KKK leader is what Stern says first drew Schoep in.

In 2014, Schoep called Stern to inquire about his relationship with Killen, the activist said. Schoep asked to see the man’s prison ID card and said Stern was the first black man his organization had reached out to since Malcolm X. Stern said he searched Schoep’s name, discovered he was a white supremacist, then arranged for the two to meet in California for a small race-relations summit.

The two fostered a strange kind of relationship, Stern said.

Schoep and Stern remained firmly entrenched in their political camps, he said, fundamentally opposed to what the other represents. But they also engaged in regular debate: about the Holocaust, the ugliness of the Nazi swastika, the fallibility of Schoep’s white-nationalist ideals and, most critically, the fate of his hate group.

The goal, Stern claims, was always to try to change Schoep’s mind.

“From day one, I always told him: ‘I don’t agree with you; I don’t like you,’ ” Stern said. “I talked to him because I wanted to hope to change him.”

Stern did not change Schoep’s beliefs.

But according to Stern’s version of recent events, he was able to accomplish the next best thing.

In early 2019, Stern said Schoep came to him for legal advice on the lawsuit, which was filed in 2017 by a Charlottesville counterprotester against NSM and other white-nationalist groups that attended the Unite the Right rally.

Schoep seemed “rattled,” Stern said, and began talking about making a change. “I was hoping he was talking about his ideology,” Stern said.

Instead, Stern said the white-nationalist leader called NSM an “albatross hanging around his neck” and said he was looking for ways to get out. He still held the same beliefs, Stern said, but he was ready to cut ties with NSM and start a new organization because he felt underappreciated by his followers and left out of the mainstream white-nationalist movement that had swept the country in the wake of the 2016 presidential election.

Schoep was concerned about the repercussions of the Charlottesville lawsuit and the legal bills he was shouldering, Stern said, and he confided in the California activist as he sought solutions.

“I saw a crack in that armor,” Stern said.

So he encouraged Schoep to get a fresh start by handing Stern the control of the Detroit-based organization and website.

Schoep said yes.

“He knew that he had the most vulnerable, the most loose-cannon members that they had ever had in the organization,” Stern said. “He realized somebody was going to commit a crime, and he was going to be held responsible for it.”

Stern says he’s preparing for what comes next and is seeking guidance from Jewish leaders. He said he does not plan to dissolve the corporation because he doesn’t want Schoep’s followers, or others in the white-nationalist movement, to reincorporate it.

Stern admits his plans for the website are still evolving, but his primary goal is to offer it as a reclaimed space to Jewish organizations that could help him educate NSM’s followers on the history of the Holocaust.

“Everything is out in the open,” Stern said. “My plans and intentions are not to let this group prosper. It’s my goal to set some hard records right.”

Schoep took control of NSM in 1994 and was responsible for growing its membership and brand as an organization of Holocaust deniers and Adolf Hitler acolytes. The group maintains a website that draws in millions of visitors from around the world, Stern said, and has organized public rallies across the county.

The group, whose members wear SS-like uniforms that mirror those worn in Nazi Germany, was founded under a different name in 1974 by two former officials of the American Nazi Party, according to the Southern Poverty Law Center. “Signing over leadership of an organization this old is the equivalent of a death sentence in the white-nationalist movement,” said Keegan Hankes, an SPLC research analyst. “It’s one of the strangest things I’ve seen since I started tracking these things five years ago.”

Several of the people listed on the NSM website as leaders within the organization did not respond to a request for comment from The Post on Friday. One man, who identifies himself as SS Capt. Harry L. Hughes III and is listed as the public relations director for NSM, said in an email that he is “not involved in the NSM’s legal affairs” and was “not at liberty to discuss anything, until Commander Schoep personally makes a statement.”

“Just like you and the rest of the media, I’m waiting in suspense, too,” Hughes added.

Matthew Heimbach, a leading white-nationalist figure who briefly served last year as the organization’s community outreach person, told the Associated Press that there has been conflict between NSM’s leaders, including Schoep, and its membership. Heimbach estimated the group had 40 dues-paying members last year.

The biggest challenge the group has faced, Hankes said, was being outshone by the more refined efforts of new alt-right leaders such as Richard Spencer. There was tension within the organization about the need for a shift to a less violent, less explicit brand of neo-Nazism, he said.

“A lot of these groups see [NSM] as extremely detrimental to anything regarding identity politics,” Hankes said.

Stern told The Post that he and Schoep discussed this infighting and that Schoep expressed a desire to leave NSM behind and start a new organization with less baggage.

Schoep offered a different perspective in his statement: “I realize that there is a lot of confusion right now, and ongoing legal matters prevent me from being more thorough in my explanation of events. Regardless, it is important for me to communicate that my actions are always done for a reason, and I would never purposefully damage the organization I have spent so many years serving.”

Though Schoep is no longer legally affiliated with NSM, he still faces the lawsuit because he is listed as a defendant.

“It’s definitely not good for him, and it shouldn’t be good for him,” Stern said. “You spend 25 years terrorizing people, you can’t rebrand overnight. It doesn’t work like that.”

Stern, who runs Racial Reconciliation Outreach Ministries, is still sorting through the legal intricacies his NSM leadership entails. He is listed as the attorney representing NSM in court filings, but a judge ruled Friday that he cannot be NSM’s lawyer because corporations are not legally authorized to represent themselves in court.

Stern said he is working on hiring an outside lawyer to refile his motion for a summary judgment on the lawsuit. He has also offered the plaintiff’s attorneys full access to NSM social media accounts, he said, because he claims to own those, too.

“Say what you want about me,” Stern said. “But I’ve done this twice now.”

Donald Trump’s Response to John McCain’s Death Reminds Us Just How Petty He Is

the enmity between the two men was long-standing and bitter. After the Helsinki summit, earlier this year, McCain called Trump’s joint press conference with Vladimir Putin “one of the most disgraceful performances by an American President in memory.” If, after all this acrimony, Trump had said something positive about McCain, it would have rung hollow.

But messing with the flag that flies above the White House was different. The flag represents the United States and the office of the Presidency, not Trump personally. After the death of a prominent U.S. politician, such as a former President or prominent senator, it is standard practice for the sitting President to issue a proclamation ordering the flag to be lowered to half-staff until the burial, which, in this case, will be next Sunday.

Whatever one thinks of McCain’s political views, his record—five and a half years in a Vietnamese prisoner-of-war camp, thirty-one years in the Senate, and two Presidential bids—surely merited such an honor. As Mark Knoller, of CBS News, noted on Monday morning, Trump failed to order the proclamation. Evidently, there is no limit to his smallness.

The outcry was immediate and broad-based, and, in this instance, Trump backed down.

.. Who persuaded Trump to change course? Was there a rebellion in the West Wing? The initial reports about the reversal didn’t say. But it was clear that the last thing the White House needs right now is another public-relations disaster. Although McCain’s death knocked the saga of Michael Cohen’s guilty plea off the front pages, at least temporarily, the past week was a disaster for the White House, and a reminder that Trump’s pettiness is only exceeded by his deceitfulness. Is there anybody in the entire country who now believes anything he says about the payments to Stormy Daniels and Karen McDougal that Cohen helped orchestrate?

.. For habitual liars, telling untruths is “partly practice and partly habit,” William Hazlitt once wrote. “It requires an effort in them to speak truth.” Trump seldom makes the exertion.

.. Some of Trump’s defenders are complaining that the Feds, having failed to nail the President on the charge of conspiring with Russia to influence the 2016 election, are now “trying to Al Capone the President”—that is, get him on a technicality. Others in the Trump camp are falling back on the legal argument that a sitting President can’t be indicted, or that Hillary Clinton’s campaign also violated campaign laws. But, apart from Trump himself, virtually nobody seems to be claiming that he didn’t direct the payoffs.

.. Here’s a quick reminder of the rap sheet. Turning a blind eye to money laundering at his New Jersey casinos. Operating a bogus university that bilked middle-income seniors out of their retirement savings. Stiffing his suppliers as a matter of course. Selling condos to Russians and other rich foreigners who may well have been looking to launder hot money. Entering franchising deals with Eastern European oligarchs and other shady characters. For decades, Trump has run roughshod over laws and regulations.

To protect himself from whistle-blowers, financial cops, and plaintiffs, Trump relied on nondisclosure agreements, lax enforcement, and his reputation for uncompromising litigiousness.

Stormy Daniels’s lawyer is a media star. So why is he threatening journalists?

He has proved to be irresistible media catnip : flamboyant and fast-talking with a bottomless pocketful of scoops and quotes.

.. stories circulated of Avenatti threatening or harshly criticizing three media organizations: the Daily Caller, the Hollywood Reporter and Law & Crime, a legal website.

.. “If you and your colleagues do not stop with the hit pieces that are full of lies and defamatory statements, I will have no choice but to sue each of you and your publication for defamation,”

.. Here is the charismatic ratings-meister who thrives in the spotlight, but when the coverage turns negative, he goes on the attack against the very press that benefits him.

.. “Avenatti seems quite Trumpian in both loving media attention and acting quite contemptuously toward the free press.”

.. Identifying errors, and asking for corrections, is always legitimate, of course.

But should a fit of pique really include threats to sue journalists and their news organizations for defamation?

.. he sees Avenatti being treated as a hero because a lot of people agree with his anti-Trump agenda.

But he says he shouldn’t get that kind of a pass.

.. Liberals’ faulty thinking about Avenatti goes like this, he said: “It’s okay if he acts badly because he’s accomplishing things.”

.. White sees a clear parallel to the way avid Trump supporters defend the president’s unsavory behavior: “Take him seriously, not literally” — simply because it’s someone whose agenda you like.

.. “I generally support standing up to Trump and Cohen,” White said, “but when Avenatti makes frivolous legal threats, he’s acting just like them.” (Trump is well known for threats to sue journalists, very few of which have come to pass.)

Avenatti is effective, in part, because he plays the same game as Trump, with a gleeful willingness to attack and an instinct for manipulating journalistic appetites.

Stormy Daniels already had a defamation claim against Trump. Now she has a splendid case.

Stormy Daniels already has a defamation claim against President Trump based in part on his accusation that her story that she was threatened in a parking lot was false. (Trump says the claim of an affair was “false and extortionist.”) Now she has a splendid case.

Accusing someone of a crime is defamation per se, meaning no damages need to be proved. Avenatti will be entitled to depose Trump under oath to ask such nettlesome questions as:

  • Did you have sexual relations with my client?
  • Did you publicly deny knowledge of a settlement payment on national TV?
  • Did you reimburse Michael Cohen for fronting the money?
  • Did you break up the payments in monthly installments? Why?
  • Have you made other payments to remain silent about adulterous affairs? How many? Did they all extort money from you, in your view? What are their names? How much did you pay out?

.. According to Daniels, Cohen strong-armed her into making a settlement. She, in other words, was the victim of a pressure campaign, not its instigator. Cohen would therefore need to answer questions that parallel inquiries for Trump. One or both might take the 5th — which many Americans would interpret as evidence one or both violated criminal campaign laws.

Avenatti has advantages over Robert S. Mueller III. Avenatti can needle Trump daily on TV, a tactic that already pushed Trump to lie publicly about his knowledge of the settlement. Avenatti can not be fired by Trump. Pursuant to the Paula Jones case, Daniels’s lawyer unquestionably has the right to depose Trump under oath.

There is delicious karma in this happening to Trump, who bludgeoned Hillary Clinton during the campaign for allegedly helping her husband to falsely smear women who accused the philandering president of sexual conduct. We reach karmic overload when we note that Trump has spent a lifetime threatening to and actually filing lawsuits alleging defamation.

One can fully understand why Melania Trump reportedly cried on election night. Whatever she knows or doesn’t know, she surely understands her husband’s propensity to lie and the font of potential legal trouble that could envelop him once in office. You do wonder, however, at what point Ivanka Trump, who claims the “right” to believe her father’s statements, however sketchy, will throw in the towel on her defense of him. Maybe it is time for Ivanka and Jared Kushner to go back to New York.