ExpressO Submission Service Will Shut Down on June 30

In 2008, when I submitted my first article to law reviews, ExpressO by BEPress was the leading service. At the time, some journals still accepted paper submissions, but the preferred method was electronic through ExpressO. The process was straightforward. Professors with academic accounts could submit to an unlimited number of journals for a flat fee. This model led to a torrent of submissions. Journals would get blanketed with far too many articles. After all, there was no incentive to budget with a free-for-all plan.

Over the past decade, the landscape has shifted. I first became aware of Scholastica, an alternate submission platform in 2013. At the time, the nascent system allowed law reviews to ask authors about race and other demographic information. The California Law Review and NYU Law Review made that field mandatory. (I wrote about the issue here, here, here, here, and here). I soon became much more familiar with Scholastica. The model was different. Each submission would cost a flat fee of $6.50. The interface was also much snappier, and easier to use. And the site made it far easier for authors to communicate with editors.

Year after year, more journals were added to Scholastica, and more journals left Expresso. In recent years, few of the top 100 journals remained on Expresso. It was only a matter of time before Expresso had to shut down. Now it has happened.

My librarian circulated this email from Expresso:

After nearly two decades of serving the law community, this will be the last submission season for ExpressO.

This was not an easy decision. However, we are moving on and looking to the future, focusing on growing our premier institutional repository platform, Digital Commons (DC) and Expert Gallery Suite (EGS).

We are tremendously proud to have served authors, editors, and institutions, and we wholeheartedly thank the community for making ExpressO a success.

To help mitigate impact to our users, our final season will be phased accordingly:

March 31: Last day to submit to law reviews.

June 30: Complete service shutdown.

While March 31 will be the last day to submit your articles for publication consideration, all accounts, including those for law reviews, will remain open and accessible until June 30. This allows users to continue to manage their submissions, make and accept offers, and download submission information.

Now Scholastica has an effective monopoly. I hope the quality of service does not diminish.

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Cuomo’s New York Is Just Throwing Away Vaccines Rather Than Distributing Them Competently

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The day after more than 4,100 people died from COVID-19 across the U.S., news broke that health care providers in New York were forced to throw out precious vaccine doses instead of putting them in people’s arms.

New York’s Gov. Andrew Cuomo, a Democrat, is the main man to blame. On December 28, he signed an executive order rolling out strict penalties—up to $1 million in fines, plus loss of medical license—for medical providers who allow people to skip the state-issued vaccination line, even when those doses are about to expire. The state’s current vaccination plan allows frontline public health workers who have direct contact with patients to be vaccinated, as well as residents in nursing homes and other congregate care facilities. It does not currently allow for vaccination of most other elderly people, the group at the highest risk of death from COVID-19. (Cuomo’s office did not respond to Reason‘s request for comment by time of publication.)

Predictably, The New York Times reported today that some clinics throughout New York City, like the Family Health Center of Harlem, are throwing out doses that are about to expire. Vials of the Moderna vaccine yield about 10 doses, so the clinic had to open two in order to vaccinate the 12 people who showed up to their evening appointments:

“After a quick search, the staff found three other eligible people, leaving five unused doses, Dr. Calman said.

The nurse at the clinic called her supervisor at home asking what to do with the remainder. From her home, the supervising nurse called her contact at the city’s health department for guidance. She was told to try to find someone who fit the eligibility criteria and was encouraged to contact a nearby nursing home, an urgent care center and a women’s shelter.

The nurse at the clinic set out on foot. She was turned away at the nursing home, a fire station and elsewhere, Dr. Calman said, before she was able to find one eligible and willing health care worker.

Dr. Calman said the nurse eventually threw out the remaining doses after the health department told the clinic that it could only vaccinate members of eligible groups.”

In other words, massive fines are deterring health care workers from getting long-awaited vaccine doses to the people who need them. And they’re right to be scared of those fines, which are not empty threats: A hospital in New Rochelle is under investigation for potential violation of the state’s rules, and their vaccine doses have been seized and reallocated.

The state is wrong to put these medical workers in a horrifying ethical bind where they must choose between violating the governor’s rules to help save people’s lives, or throwing scarce resources out at a time when we’re desperately attempting to reach herd immunity and avoid higher death tolls. Especially since vaccinating more people, whoever they are, is a Pareto improvement—something that would benefit at least one person (in this case, more than that, if vaccines reduce transmission too) while harming none. And, as Reason‘s Ron Bailey has written extensively, time is of the essence when it comes to vaccinations, especially as a more-transmissible COVID-19 variant spreads.

Meanwhile, states like Texas and Florida are allowing people aged 65 and older to receive vaccines, but New York refuses, saying people in the 65-74 age group will probably receive vaccines in March or April. In those states, which both have Republican governors who have received some amount of scrutiny for bucking federal vaccine-line guidance, seniors are incurring long wait times and jammed phone lines. So these states’ rollouts are not without fault, but at least the people most in need are receiving doses. (In fact, four elderly family members of mine in Texas have already received their first shots.)

Part of the problem here is that Cuomo and New York City Mayor Bill de Blasio have long been engaged in political one-upmanship and petty power struggles—a tale as old as time. But, to de Blasio’s credit, he’s started pleading with Cuomo and asking that the state open up vaccinations to seniors:

Cuomo, a man who had the astonishing gall to publish a book during the pandemic about his leadership successes, should really put the petty game of politics aside now that health care providers in his state are throwing out the vaccine doses we’ve spent the better part of a year yearning for.

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BofA: Bitcoin Is Now “The Mother Of All Bubbles”… This Is How It Could Burst

BofA: Bitcoin Is Now “The Mother Of All Bubbles”… This Is How It Could Burst

Back in late 2017 when bitcoin surged higher to reach what would be its all time high of just under $20,000, a veritable cottage industry of experts calling bitcoin the biggest bubble in history emerged. But while the bubble-callers were vindicated for a few years, little did they know that just three years later what they thought was the biggest bubble ever, would be surpassed several times over with bitcoin now more than double its Dec 2017 all time high on the back of global central banks injecting $1.3 billion in liquidity in the market each and every hour.

What is behind this epic move higher? Simple: as Morgan Stanley’s Michael Wilson explained on Monday, with the Fed now openly manipulating and depressing yields, and the CPI a useless, politically-motivated indicator, bitcoin has emerged as one of the only accurate inflationary metric available to traders. This is what Wilson said:

We believe the big surprise of 2021 could be higher inflation than many, including the Fed, expect. Currently, the consensus is expecting a gradual and orderly increase in prices as the economy continues to recover. However, the move in asset prices like Bitcoin suggest markets are starting to think this adjustment may not be so gradual or orderly (Exhibit 5). We concur. With global GDP output already back to pre-pandemic levels and the economy not yet even close to fully reopened, we think the risk for more acute price spikes is greater than appreciated. That risk is likely to be in areas of the economy where supply may have been destroyed and ill prepared for what could be a surge in demand later this year—e.g. restaurants, travel and other consumer/business related services…inflation can be kryptonite for longer  duration bonds which would have a short term negative impact on valuations for all stocks should that adjustment happen abruptly…. The best inflation hedges are stocks and commodities in the intermediate term.

Today, BofA’s Michael Hartnett picks up on this theme and writes that as a result of the “violent inflationary price action past two months, bitcoin is up 180%, with the cryptocurrency market now more than >$1tn as Bitcoin past 2 years blows-the-doors-off prior bubbles.” And just in case we need visualization, here is how Bitcoin is now the “mother of all bubbles.”

So is bitcoin’s liquidity-fueled explosion here to stay? Nobody knows – and anyone who claims otherwise is a liar and a charlatan – but just to hedge, Hartnett lays out several “liquidity warning signs” explaining that the “contrarian bear catalyst in 2021” will be rates not profits, so keep an eye on early warning signs that rates are turning bearish for risk, among which are:

  • Credit: LQD drops below $133 and/or levered loans start to significantly outperform

  • Dollar: surprise rally as weaker Europe & Asia growth require bout of US dollar strength.
  • China: CNY and SHCOMP follow Chinese bond yields lower signaling weaker growth

  • Inflation: inflation prints spook Fed balance sheet bulls (food prices at 6-year highs, up 20% past 8 months)
  • Froth: higher yields trigger losses in speculative favorites e.g. XBT, TSLA.
  • Rate-sensitives: classic lower rate plays such as XHB, SOX breakdown.

As Hartnett concludes, warning that the bursting of the bubble remains the biggest bull risk, the “decade-long backdrop of maximum liquidity and technological disruption has caused maximum inequality & massive social and electoral polarization…value of US financial assets (Wall Street) now 6X size of GDP.”

Hartnett’s surprisingly frank slam of the biggest asset bubble ever – of which bitcoin is merely a symptom – concludes by pointing out that “investor price action is increasingly speculative (IPOs, SPACs), wealth gains are obscene… but extreme asset bubbles are a natural end to nihilistic bull markets of past decade; bubbles (e.g.) in risk asset prices ignore rising rates & humiliated investors worried about “peak positioning”; we’ll know if it’s a bubble by end-Q1.”

But until then… just buy everything.

Tyler Durden
Fri, 01/08/2021 – 15:01

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Cancel Crusade Reignites As Reddit Bans Pro-Trump Forum, Facebook Unpersons ‘Walk Away’ Movement

Cancel Crusade Reignites As Reddit Bans Pro-Trump Forum, Facebook Unpersons ‘Walk Away’ Movement

Cancel culture is back with a vengeance, after Reddit banned yet another pro-Trump forum, /r/DonaldTrump, from the public square in yet another example of leftist technocrats using outlier groups of extremists – in this case, the Capitol ‘raid’ – to justify their actions, while having given their own side a pass during four years of violence and incendiary rhetoric.

“Reddit’s site-wide policies prohibit content that promotes hate, or encourages, glorifies, incites, or calls for violence against groups of people or individuals. In accordance with this, we have been proactively reaching out to moderators to remind them of our policies and to offer support or resources as needed,” a Reddit spokesperson told an undoubtedly giddy Axios, who added “We have also taken action to ban the community r/donaldtrump given repeated policy violations in recent days regarding the violence at the U.S. Capitol.

In June, Reddit banned /r/The_Donald – one of the site’s largest political communities, right as the 2020 election began to heat up.

The company’s Friday ban-hammer comes on the heels of several other platforms taking actions against Trump or his supporters. As Axios notes:

  • Twitch and Snapchat disabled Trump’s accounts.
  • Shopify took down two online stores affiliated with the president.
  • Facebook and Instagram banned Trump from posting for at least the next two weeks, and faced calls to boot him permanently, including from former First Lady Michelle Obama and high-ranking Hill Democrats.
  • Twitter froze Trump out of his account Wednesday before reinstating him Thursday once he deleted problematic tweets.
  • YouTube says it’s accelerating its enforcement of voter fraud claims against President Trump and others based on Wednesday’s events.
  • TikTok is removing content violations and redirecting hashtags like #stormthecapitol and #patriotparty to its community guidelines.

Meanwhile, Facebook has removed the ‘Walk Away’ campaign from its platform and has banned founder Brandon Straka and his team – which had over 500,000 people who shared their testimonial videos about leaving the Democratic party.

And in what’s got to be the icing on the cancel cake, Lehigh University just revoked a 33-year-old honorary degree given to President Trump in 1988, after the school’s board of trustees voted to do so on Thursday following the violence in the Capitol. 

It seems like these institutions were just waiting for the right excuse…

Tyler Durden
Fri, 01/08/2021 – 14:45

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Biden Promises More Money For Black, Brown Businesses; Says Americans “Entitled” To $15 Min Wage

Biden Promises More Money For Black, Brown Businesses; Says Americans “Entitled” To $15 Min Wage

Just in case you wondered why stocks suddenly jerked back higher (after tumbling on Manchin comments over stimulus checks… and impeachment uncertainty), it’s simple – President-Elect Biden just promised even moar…

Headlines from his speech (via Bloomberg) were nothing new of course, fitting with the Democratic campaign plans:

  • *BIDEN: GAP IN BLACK, LATINO UNEMPLOYMENT IS `MUCH TOO LARGE’

  • *BIDEN: NEED RELIEF FOR WORKING FAMILIES, BUSINESSES NOW

  • *BIDEN: WILL LAY OUT FRAMEWORK FOR NEXT RELIEF PACKAGE NEXT WEEK

  • *BIDEN: VACCINE DISTRIBUTION IS GREATEST OPERATIONAL CHALLENGE

  • *BIDEN SAYS $600 RELIEF PAYMENTS AREN’T ENOUGH

  • *BIDEN: HOPE DEMOCRATIC CONGRESS CONTROL LEADS TO MIN WAGE BOOST

  • *BIDEN: AMERICANS ENTITLED TO $15/HOUR MINIMUM WAGE

  • *BIDEN: BLACK, BROWN-OWNED BUSINESS HAVE HAD LESS RELIEF ACCESS

  • *BIDEN: TENS OF THOUSANDS OF COS. GOT RELIEF THEY SHOULDN’T HAVE

  • *BIDEN: FOCUS TO BE ON SMALL BIZ WITHOUT CONNECTIONS

  • *BIDEN: WILL DIRECT RELIEF TO THOSE INDUSTRIES HIT THE HARDEST

  • *BIDEN: WILL HAVE NAVIGATORS TO HELP SMALL BIZ UNDERSTAND RELIEF

  • *BIDEN: WILL MAKE BANK EXPECTATIONS `CRYSTAL CLEAR’

The reaction – of course – was buying panic!

Because, fundamentals!

Tyler Durden
Fri, 01/08/2021 – 14:36

via ZeroHedge News https://ift.tt/39hUkLx Tyler Durden

Did Trump Commit a Crime When He Riled Up His Supporters Before They Rioted?

Trump-DC-rally-1-6-21

The inflammatory speech that Donald Trump delivered to thousands of his most passionate followers shortly before hundreds of them attacked the Capitol was an act of egotism and recklessness that stood out even in a presidency suffused with both. Was it also a crime?

“The Justice Department said on Thursday that it would not rule out pursuing charges against President Trump for his possible role in inciting the mob that marched to the Capitol, overwhelmed officers and stormed the building a day earlier,” The New York Times reports. Michael Sherwin, acting U.S. attorney for the District of Columbia, told reporters, “We are looking at all actors, not only the people who went into the building.” When he was asked whether those “actors” might include the president, he replied, “We’re looking at all actors. If the evidence fits the elements of a crime, they’re going to be charged.”

It seems pretty clear that Trump’s behavior, while outrageous and irresponsible, does not fit the elements of a crime. Under the Supreme Court’s First Amendment precedents, inflammatory speech can be punished only in narrowly defined circumstances that go beyond what happened on Wednesday. Under federal law, incitement to riot does not include “advocacy of ideas” or “expression of belief” unless it endorses violence, which Trump did not do.

The Times nevertheless reports that Trump “suddenly realize[d] he could face legal risk for prodding the mob,” which persuaded him to record the message he posted on Twitter yesterday, in which he unequivocally condemned the rioters for the first time without reiterating the stolen-election fantasy that motivated them. After insisting in his pre-riot speech the day before that “we will never give up” and “we will never concede,” a seemingly chastened Trump did just that, saying, “A new administration will be inaugurated on January 20th.” He added that “this moment calls for healing and reconciliation.”

It was a bit late for that. For more than two months, Trump insisted, over and over again, that he actually won the election by a landslide, that Democrats deprived him of his rightful victory through a massive criminal conspiracy, and that letting them get away with it would destroy democracy and ruin the republic. That message culminated in Wednesday’s incendiary speech, during which the president addressed the angry supporters who had gathered for a Trump-promoted “Save America March” aimed at preventing President-elect Joe Biden from taking office.

Trump began his rant an hour before a joint session of Congress convened to ratify Biden’s victory. Railing against “this egregious assault on our democracy,” he urged his followers to “show strength” and “take back our country” by “marching over to the Capitol building” and “demand[ing] that Congress do the right thing.” The “right thing,” according to Trump, was overturning the election results by rejecting electoral votes for Biden. But it was clear that Congress was not about to do that, especially after Vice President Mike Pence, who was charged with presiding over the joint session, forcefully rejected the president’s specious argument that he had the unilateral power to deliver the outcome Trump wanted.

The result was not hard to predict as thousands of aggrieved and frustrated Trump fans, riled up by the president, streamed toward the Capitol on a mission that was bound to fail. Does that mean Trump, legally speaking, incited a riot?

Under federal law, “to incite a riot” means “to organize, promote, encourage, participate in, or carry on a riot.” The crime, which is a felony punishable by up to five years in prison, “includes, but is not limited to, urging or instigating other persons to riot, but shall not be deemed to mean the mere oral or written (1) advocacy of ideas or (2) expression of belief, not involving advocacy of any act or acts of violence or assertion of the rightness of, or the right to commit, any such act or acts.”

Even advocacy of illegal behavior, the Supreme Court ruled in the 1969 case Brandenburg v. Ohio, is constitutionally protected speech unless it is both aimed at inciting “imminent lawless action” and likely to do so. The case involved a Ku Klux Klan leader, Clarence Brandenburg, who was accused of advocating violence in the service of a political cause and participating in a gathering aimed at promoting “the doctrines of criminal syndicalism.”

The charges stemmed from a KKK rally that featured weapons, hoods and robes, a cross burning, and racist and anti-Semitic rhetoric. “Personally,” Brandenburg said, “I believe the nigger should be returned to Africa, the Jew returned to Israel.” He also alluded vaguely to the possibility of violent resistance. “We’re not a revengent organization,” he said, “but if our president, our Congress, our Supreme Court, continues to suppress the white, Caucasian race, it’s possible that there might have to be some revengeance taken.”

The Court ruled that Brandenburg’s speech was protected by the First Amendment. “The constitutional guarantees of free speech and free press,” it said, “do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”

Given the circumstances, Trump’s speech was likely to result in imminent lawless action by at least some of the demonstrators. But did he intend that result?

The attack on the Capitol, which provoked bipartisan condemnation of Trump’s rhetoric, second thoughts by senators who had planned to challenge Biden’s electoral votes, disgusted resignations by Cabinet members, and threats of a second impeachment, certainly did not redound to his benefit. That fact does not necessarily illuminate Trump’s intent, since he has never been very good at controlling his impulses or anticipating how his unhinged remarks will affect his political interests.

On its face, however, Trump’s speech called for nothing but peaceful protest. “We have come to demand that Congress do the right thing and only count the electors who have been lawfully slated,” he said. “I know that everyone here will soon be marching over to the Capitol building to peacefully and patriotically make your voices heard today.”

Citing unnamed “officials,” the Times reports that Trump “was initially pleased” when some of his supporters “stormed into the Capitol” and that he “disregarded aides pleading with him to intercede.” But about 20 minutes after the demonstration turned violent, Trump urged his supporters to “stay peaceful.” Half an hour later, he reiterated that message: “I am asking for everyone at the U.S. Capitol to remain peaceful. No violence! Remember, WE are the Party of Law & Order—respect the Law and our great men and women in Blue.” Later that day, he recorded a message urging the protesters to “go home now,” saying “we have to have peace,” even while continuing to insist that “we had an election that was stolen from us.”

Trump did not advocate violence, even in general terms. If his remarks qualify as incitement to riot, so would similarly fiery rhetoric at other protests that are marked by violence.

In 2016, a Baton Rouge police officer who was injured during a Black Lives Matter demonstration sued one of the movement’s leaders, DeRay Mckesson, saying he “incited the violence.” A federal judge dismissed the lawsuit after concluding that Mckesson “solely engaged in protected speech” at the protest. The U.S. Court of Appeals for the 5th Circuit later revived the lawsuit, but its decision focused on the allegation that Mckesson “directed the demonstrators to engage in [a] criminal act” by blocking a highway, which “quite consequentially provoked a confrontation between the Baton Rouge police and the protesters.”

Trump, by contrast, did not commit a crime or urge others to do so, even if the violence that followed his speech was predictable. His opponents may regret establishing a precedent that speakers who neither commit nor advocate violence can be prosecuted for the criminal conduct of people inspired by their words.

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Buchanan: The Worst Of Days For Trump & Trumpists

Buchanan: The Worst Of Days For Trump & Trumpists

Authored by Pat Buchanan via Buchanan.org,

President Donald Trump, it turns out, was being quite literal when he told us Jan. 6 would be “wild.”

And so Wednesday was, but it was also disastrous for the party and the movement Trump has led for the last five years.

Wednesday, the defeats of Senators Kelly Loeffler and David Perdue in Georgia’s runoff elections were confirmed. This translates into the GOP losing the Senate for the next two years.

Chuck Schumer now replaces Mitch McConnell as majority leader.

And the new 50-50 split will put Vice President-elect Kamala Harris, the president of the Senate on Jan. 20, in position to cast the deciding vote on every major issue where the two parties are evenly divided.

Wednesday, there also came the acceptance by both houses of Congress of Joe Biden’s 306-232 electoral vote victory over Trump. The last potential hurdle to Biden’s inauguration as 46th president of the United States has been removed.

But the worst of the day’s events for Trump came when a segment of a friendly crowd of 50,000 he just addressed concluded its march down the mall to the U.S. Capitol by smashing its way into the building and invading and occupying the Senate and House chambers.

Members of Congress were forced to flee and hide. A protester, an Air Force veteran, was shot to death by a Capitol cop. Vice President Mike Pence, who was chairing the joint session, was taken into protective custody by his Secret Service detail. Doors were broken open. Windows were smashed, and the building was trashed.

All this was seen on national television from midafternoon through nightfall. The East and West fronts of the Capitol were occupied for hours by pro-Trump protesters, whom the president, his son Don Jr., and Rudy Giuliani had stirred up in the hours before the march down the mall.

What Americans watched was a mob occupation and desecration of the temple of the American Republic. And the event will be forever exploited to discredit not only Trump but the movement he led and the achievements of his presidency.

He will be demonized as no one else in our history since Richard Nixon or Joe McCarthy.

Yet, just two months ago, Trump rolled up the highest vote total ever by an incumbent president, 74 million.

And, according to four major polls, his approval remains where it has been for four years, between 40 and 50%.

What took place Wednesday was a disgrace and a debacle. But it was not, as some have wildly contended, comparable to 9/11 or to the British burning of the Capitol in 1814 during the War of 1812. That is malicious hyperbole, establishment propaganda.

On Sept. 11, 2001, more than 3,000 Americans died horribly when Manhattan’s World Trade Center twin towers came crashing down and the Pentagon was hit by a hijacked airliner. And there have been far more serious events in the lifetimes of many of us than this four-hour occupation of the Capitol.

In May 1970, after Nixon ordered an invasion of Cambodia to clean out Communist sanctuaries, National Guard troops, in panic, shot and killed four students at Kent State University in Ohio.

Hundreds of campuses exploded; hundreds of universities shut down for the semester. Scores of thousands of demonstrators poured into D.C. Buses, end-to-end, circled the White House. U.S. troops were moved into the basement of the Executive Office Building.

Today, there is absurd media talk of removing the president through impeachment or invocation of the 25th Amendment.

If the House votes impeachment, is the Senate going to hold a trial in 12 days to put Pence in the Oval Office? As for removing Trump through the 25th Amendment, this would require a declaration by Vice President Pence and half of the Cabinet that Trump is unfit to finish out a term that ends in two weeks. Not going to happen.

But undeniably, the events of Wednesday are going to split the Republican Party. And what does the future of that party now look like?

After Trump leaves the presidency, he will not be coming back. The opposition to him inside the GOP would prevent his nomination or would defect to prevent his reelection were he nominated again.

Yet, the size and strength of Trump’s movement is such that no Republican candidate he declares persona non grata could win the nomination and the presidency.

Trump’s supporters are today being smeared and castigated by the same media who lionized the BLM and antifa “peaceful protesters” who spent their summer rioting, looting, burning and pillaging Minneapolis, Milwaukee, Portland, Kenosha, Louisville and scores of other cities.

The Trumpists have been demonized before. They are used to this. And whatever their sins, disloyalty and ingratitude to the man they put in the presidency is not one of them.

Wednesday was a bad day for America, but it was not the Reichstag fire.

Tyler Durden
Fri, 01/08/2021 – 14:15

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Did Trump Commit a Crime When He Riled Up His Supporters Before They Rioted?

Trump-DC-rally-1-6-21

The inflammatory speech that President Donald Trump delivered to thousands of his most passionate followers shortly before hundreds of them attacked the Capitol was an act of egotism and recklessness that stood out even in a presidency suffused with both. Was it also a crime?

“The Justice Department said on Thursday that it would not rule out pursuing charges against President Trump for his possible role in inciting the mob that marched to the Capitol, overwhelmed officers and stormed the building a day earlier,” The New York Times reports. Michael Sherwin, acting U.S. attorney for the District of Columbia, told reporters, “We are looking at all actors, not only the people who went into the building.” When he was asked whether those “actors” might include the president, he replied, “We’re looking at all actors. If the evidence fits the elements of a crime, they’re going to be charged.”

It seems pretty clear that Trump’s behavior, while outrageous and irresponsible, does not fit the elements of a crime. Under the Supreme Court’s First Amendment precedents, inflammatory speech can be punished only in narrowly defined circumstances that go beyond what happened on Wednesday. Under federal law, incitement to riot does not include “advocacy of ideas” or “expression of belief” unless it endorses violence, which Trump did not do.

The Times nevertheless reports that Trump “suddenly realize[d] he could face legal risk for prodding the mob,” which persuaded him to record the message he posted on Twitter yesterday, in which he unequivocally condemned the rioters for the first time without reiterating the stolen-election fantasy that motivated them. After insisting in his pre-riot speech the day before that “we will never give up” and “we will never concede,” a seemingly chastened Trump did just that, saying, “A new administration will be inaugurated on January 20th.” He added that “this moment calls for healing and reconciliation.”

It was a bit late for that. For more than two months, Trump insisted, over and over again, that he actually won the election by a landslide, that Democrats deprived him of his rightful victory through a massive criminal conspiracy, and that letting them get away with it would destroy democracy and ruin the republic. That message culminated in Wednesday’s incendiary speech, during which the president addressed the angry supporters who had gathered for a Trump-promoted “Save America March” aimed at preventing President-elect Joe Biden from taking office.

Trump began his rant an hour before a joint session of Congress convened to ratify Biden’s victory. Railing against “this egregious assault on our democracy,” he urged his followers to “show strength” and “take back our country” by “marching over to the Capitol building” and “demand[ing] that Congress do the right thing.” The “right thing,” according to Trump, was overturning the election results by rejecting electoral votes for Biden. But it was clear that Congress was not about to do that, especially after Vice President Mike Pence, who was charged with presiding over the joint session, forcefully rejected the president’s specious argument that he had the unilateral power to deliver the outcome Trump wanted.

The result was not hard to predict as thousands of aggrieved and frustrated Trump fans, riled up by the president, streamed toward the Capitol on a mission that was bound to fail. Does that mean Trump, legally speaking, incited a riot?

Under federal law, “to incite a riot” means “to organize, promote, encourage, participate in, or carry on a riot.” The crime, which is a felony punishable by up to five years in prison, “includes, but is not limited to, urging or instigating other persons to riot, but shall not be deemed to mean the mere oral or written (1) advocacy of ideas or (2) expression of belief, not involving advocacy of any act or acts of violence or assertion of the rightness of, or the right to commit, any such act or acts.”

Even advocacy of illegal behavior, the Supreme Court ruled in the 1969 case Brandenburg v. Ohio, is constitutionally protected speech unless it is both aimed at inciting “imminent lawless action” and likely to do so. The case involved a Ku Klux Klan leader, Clarence Brandenburg, who was accused of advocating violence in the service of a political cause and participating in a gathering aimed at promoting “the doctrines of criminal syndicalism.”

The charges stemmed from a KKK rally that featured weapons, hoods and robes, a cross burning, and racist and anti-Semitic rhetoric. “Personally,” Brandenburg said, “I believe the nigger should be returned to Africa, the Jew returned to Israel.” He also alluded vaguely to the possibility of violent resistance. “We’re not a revengent organization,” he said, “but if our president, our Congress, our Supreme Court, continues to suppress the white, Caucasian race, it’s possible that there might have to be some revengeance taken.”

The Court ruled that Brandenburg’s speech was protected by the First Amendment. “The constitutional guarantees of free speech and free press,” it said, “do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”

Given the circumstances, Trump’s speech was likely to result in imminent lawless action by at least some of the demonstrators. But did he intend that result?

The attack on the Capitol, which provoked bipartisan condemnation of Trump’s rhetoric, second thoughts by senators who had planned to challenge Biden’s electoral votes, disgusted resignations by Cabinet members, and threats of a second impeachment, certainly did not redound to his benefit. That fact does not necessarily illuminate Trump’s intent, since he has never been very good at controlling his impulses or anticipating how his unhinged remarks will affect his political interests.

On its face, however, Trump’s speech called for nothing but peaceful protest. “We have come to demand that Congress do the right thing and only count the electors who have been lawfully slated,” he said. “I know that everyone here will soon be marching over to the Capitol building to peacefully and patriotically make your voices heard today.”

Citing unnamed “officials,” the Times reports that Trump “was initially pleased” when some of his supporters “stormed into the Capitol” and that he “disregarded aides pleading with him to intercede.” But about 20 minutes after the demonstration turned violent, Trump urged his supporters to “stay peaceful.” Half an hour later, he reiterated that message: “I am asking for everyone at the U.S. Capitol to remain peaceful. No violence! Remember, WE are the Party of Law & Order—respect the Law and our great men and women in Blue.” Later that day, he recorded a message urging the protesters to “go home now,” saying “we have to have peace,” even while continuing to insist that “we had an election that was stolen from us.”

Trump did not advocate violence, even in general terms. If his remarks qualify as incitement to riot, so would similarly fiery rhetoric at other protests that are marked by violence.

In 2016, a Baton Rouge police officer who was injured during a Black Lives Matter demonstration sued one of the movement’s leaders, DeRay Mckesson, saying he “incited the violence.” A federal judge dismissed the lawsuit after concluding that Mckesson “solely engaged in protected speech” at the protest. The U.S. Court of Appeals for the 5th Circuit later revived the lawsuit, but its decision focused on the allegation that Mckesson “directed the demonstrators to engage in [a] criminal act” by blocking a highway, which “quite consequentially provoked a confrontation between the Baton Rouge police and the protesters.”

Trump, by contrast, did not commit a crime or urge others to do so, even if the violence that followed his speech was predictable. His opponents may regret establishing a precedent that speakers who neither commit nor advocate violence can be prosecuted for the criminal conduct of people inspired by their words.

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Deutsche Bank Pays $100MM To Resolve Chinese Bribery Scandal

Deutsche Bank Pays $100MM To Resolve Chinese Bribery Scandal

For a minute there, it looked like Goldman Sachs might steal Deutsche Bank’s crown as the most felonious bank on Wall Street. The massive penalty Goldman paid to resolve criminal proceedings tied to its role in helping a gang of corrupt plutocrats ransack a public development fund erased the fruits of a “blockbuster” quarter.

But out of nowhere, it looks like Deutsche Bank, which racked up more than $20BN in fines in the decade after the financial crisis, has emerged to defend its throne. To wit, the New York Times reported Friday that Deutsche Bank is expected to shell out $100MM to settle criminal charges that the bank bribed Chinese officials for business in the country. Bribing foreign officials to win business or access is a blatant violation of the Foreign Corrupt Practices Act.

The NYT added that the settlement would be, for Deutsche Bank, the latest black eye tied to its business in China and Russia. Back in 2019, the bank agreed to pay the SEC $16MM to resolve allegations that it bribed officials to win lucrative business deals. It looks like the settlement is tied to an investigation first reported by the NYT back in 2019. In the story, the NYT detailed DB’s long history of lavishing top Chinese political figures and their family members with lavish gifts. As the NYT reported at the time, it was all part of DB’s plan to break into the Chinese market.

A graphic published by the NYT details the web of top party officials connected to Wen Jiabao, China’s Premier between 2003 and 2013, and his wife and children.

Source: NYT

The lavish gifts included a crystal tiger (modeled after the recipient’s Chinese zodiac sign). For what it’s worth, the bank’s efforts paid off, and by 2011, it had made significant inroads into China.

The bank gave a Chinese president a crystal tiger and a Bang & Olufsen sound system, together worth $18,000. A premier received a $15,000 crystal horse, his Chinese zodiac animal, and his son got $10,000 in golf outings and a trip to Las Vegas. A top state banking official, a son of one of China’s founding fathers, accepted a $4,254 bottle of French wine – Château Lafite Rothschild, vintage 1945, the year he was born

Millions of dollars were paid out to Chinese consultants, including a business partner of the premier’s family and a firm that secured a meeting for the bank’s chief executive with the president. And more than 100 relatives of the Communist Party’s ruling elite were hired for jobs at the bank, even though it had deemed many unqualified.

This was all part of Deutsche Bank’s strategy to become a major player in China, beginning nearly two decades ago when it had virtually no presence there. And it worked. By 2011, the German company would be ranked by Bloomberg as the top bank for managing initial public offerings in China and elsewhere in Asia, outside Japan.

The NYT connected the strategy of bribing public officials to Josef Ackermann, DB’s longtime CEO, who left the bank in 2012. Ackermann was the mastermind of DB’s push into international markets in the US, Asia and elsewhere. It was this aggressive pursuit of growth at any cost that led the bank to do business with Donald Trump, who still owes DB $300MM tied to his Chicago tower.

Tyler Durden
Fri, 01/08/2021 – 13:59

via ZeroHedge News https://ift.tt/3hYQI58 Tyler Durden

Trump Never Bothered To Hide His Contempt for the Constitution

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President Donald Trump has never bothered to hide his contempt for the Constitution. By my count, he has openly trashed the principles and safeguards contained in the First Amendment, Second Amendment, Fifth Amendment, and 14th Amendment, plus the doctrine of enumerated powers and the constitutional separation of powers. To that sorry list we may now add Trump’s attacks on the Electors Clause and on the peaceful transfer of constitutional power after a presidential election.

Let’s walk through it, starting with the First Amendment.

As a presidential candidate in 2015, Trump argued that the federal government had “absolutely no choice” but to close down mosques in the name of fighting terrorism. The First Amendment, of course, protects religious liberty and stands against such assaults on houses of worship.

The federal government must enact “a total and complete shutdown of Muslims entering the United States,” Trump argued that same year. His own running mate, Mike Pence, described that idea as “offensive and unconstitutional.” Trump’s reply? The Constitution “doesn’t necessarily give us the right to commit suicide as a country, OK?”

The notion that “the Constitution is not a suicide pact” has always been the last refuge of those who are scheming to violate the document. Mr. President, you can’t declare war unilaterally! Well, you know, the Constitution is not a suicide pact. Mr. President, you can’t ban private gun ownership! Aw, come on, we all know the Constitution is not a suicide pact.

Speaking of the Second Amendment, Trump enjoys the rare distinction of having been benchslapped twice by his own judicial appointees over his administration’s cavalier attempts to expand federal gun control. After 2017’s mass shooting in Las Vegas, Trump vowed to ban bump stocks, a type of firearm accessory that the shooter reportedly used. “We can do that with an executive order,” Trump asserted. “They’re working on it right now, the lawyers.”

What the lawyers at the Department of Justice concocted for Trump was a new Bureau of Alcohol, Tobacco, Firearms and Explosives regulation “to clarify that [bump stocks] are ‘machineguns’ as defined by the National Firearms Act of 1934 and the Gun Control Act of 1968.” In other words, at Trump’s behest, the federal government would reinterpret the federal ban on machine guns to ban bump stocks too.

Not so fast, said Justice Neil Gorsuch. The executive branch “used to tell everyone that bump stocks don’t qualify as ‘machineguns.’ Now it says the opposite,” Gorsuch wrote in a statement respecting the denial of certiorari in Guedes v. Bureau of Alcohol, Tobacco, Firearms and Explosives (2020). Yet “the law hasn’t changed, only an agency’s interpretation of it,” the justice complained. “How, in all of this, can ordinary citizens be expected to keep up….And why should courts, charged with the independent and neutral interpretation of the laws Congress has enacted, defer to such bureaucratic pirouetting?”

A few weeks later, Judge Brantley Starr, a Trump appointee who sits on the U.S. District Court for the Northern District of Texas, accused the federal government of abandoning basic constitutional principles in its defense of Trump’s bump stock ban. The administration claims that the ban is a lawful exercise of the “federal police power,” Starr wrote in Lane v. United States. But “the federal government forgot the Tenth Amendment and the structure of the Constitution itself,” which grants no such power to the feds.

The Fifth Amendment has fared little better in Trump’s hands. Among other things, that provision says that if the government wants to take private property, it may do so only for a legitimate “public purpose.” Trump, by contrast, has tried to personally profit from eminent domain abuse. In 1994, Trump joined forces with New Jersey’s Casino Reinvestment Development Authority in an effort to kick an elderly widow named Vera Coking out of her Atlantic City home in order to clear space for a new limousine parking lot for the nearby Trump Plaza hotel and casino.

That attempted land grab lost decisively in court. “What has occurred here is analogous to giving Trump a blank check with respect to future development on the property for casino hotel purposes,” declared the Superior Court of New Jersey in a sharp ruling against Trump and his government partners. Coking kept her home.

The 14th Amendment is best known for placing a host of fundamental rights beyond the reach of infringing state and local officials. It also placed birthright citizenship squarely in the constitutional firmament. As I’ve previously detailed, “the text and history of the 14th Amendment are clear: If a child is born on U.S. soil, and that child’s parents don’t happen to be diplomats, foreign ministers, or invading foreign troops, then that child is a U.S. citizen by virtue of birth.”

Trump’s views on birthright citizenship amount to an unconstitutional twofer. First, he has insisted that the text of the 14th Amendment does not mean what it says (Trump’s own judicial appointees disagree with him about that). Second, Trump has argued that the president has the unilateral power to abolish birthright citizenship with the stroke of a pen. So much for the doctrine of limited and enumerated executive power.

Which brings us to Trump’s behavior during the past two months. Rather than acknowledge the fact that Joe Biden won the presidential election in November, Trump has loudly championed one lawsuit after another in the always-doomed hope that he might somehow remain in the White House.

To put it mildly, the post-election lawsuits promulgated by Trump and his allies were practically laughed out of court. And it was not just “liberal” judges who were doing the laughing. “The Campaign’s claims have no merit,” ruled Judge Stephanos Bibas of the U.S. Court of Appeals for the 3rd Circuit in Trump for President v. Pennsylvania. “Calling an election unfair does not make it so,” Bibas wrote. “Charges require specific allegations and then proof. We have neither here.” Trump was the one who appointed Bibas to the 3rd Circuit in 2017.

“We will be INTERVENING in the Texas…case,” Trump tweeted on December 9. “This is the big one.” Texas v. Pennsylvania was a big one all right, possibly the biggest joke of them all. Bypassing the lower courts, Texas Attorney General Ken Paxton went straight to the Supreme Court, asking the justices to directly intervene in the presidential election by tossing out the results in four key states—Pennsylvania, Georgia, Michigan, Wisconsin—that went for Biden. It should probably go without saying, but no state had ever succeeded in a stunt even remotely like overturning the results of a presidential election by going straight to SCOTUS to challenge the results in another state.

“The big one” soon suffered the unceremonious legal death that it deserved. “The State of Texas’s motion for leave to file a bill of complaint is denied for lack of standing under Article III of the Constitution,” the Supreme Court declared in a terse order. “Texas has not demonstrated a judicially cognizable interest in the manner in which another State conducts its elections. All other pending motions are dismissed as moot.”

His judicial humiliation now complete, Trump turned to one last-ditch crackpot constitutional theory. Namely, he argued that Vice President Mike Pence had the unilateral authority to overturn the election by rejecting pro-Biden electoral votes. “If Mike Pence does the right thing,” Trump said. “We win the election.”

Pence did do the right thing. “It is my considered judgment,” the vice president said, “that my oath to support and defend the Constitution constrains me from claiming unilateral authority to determine which electoral votes should be counted and which should not.”

Unfortunately, Trump’s undermining of the Constitution did not end there. On Wednesday, a mob of his supporters, who had just listened to Trump peddle yet more conspiracy theories and baseless allegations about a “stolen” election, stormed the U.S. Capitol, leaving five dead.

Trump will soon be out of office. He deserves to be remembered for what his words and actions have repeatedly shown him to be: no friend to the Constitution.

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