Comments on: Obama Becomes Bush As We Wait For Walker’s Ruling

By: brantl

brantl — Mon, 16 Mar 2009 19:53:33 +0000

Secondly, assuming for the sake of argument only, that what you are hypothesizing were true, that would mean that Obama was intentionally cravenly playing fast and loose with the very construct of the Constitution and Bill of Rights because he felt that more politically expedient than doing the right thing straight up. If that is his tact, he ought to be impeached on the spot.

You mean ‘tack’ or ‘tactic’. And if he had started this case, you might be right about the impeachment. His administration has just been caught up in it. They didn’t start it. Has it occured to anyone that there might be other information that needs to be protected, that wasn’t the result of criminality?

By: brantl

brantl — Mon, 16 Mar 2009 19:27:31 +0000

Bmaz. It was a question that could certainly have had a kinder answer, as the question wasn’t adverserial in content.

By: SebastianDangerfield

SebastianDangerfield — Mon, 16 Mar 2009 18:37:37 +0000

ZOMG! Thanks for the link. I now rememberthat piece (I read it last year and just hadn’t made the link with the discussion of all the consolidated cases). We have definitely gone down the rabbit hole, become Josef K, lost ourselves in Bleak House — you name the metaphor. That the DoJ has not walked into Walker’s court in sackloth and ashes and contritely disavowed every argument and every action it has taken in the case — and asked for a 3-month stay within which to reach new, and different positions on every issue — should be to Constitutional Scholar Obama an indelible stain.

I knew I should have taken the Blue Pill.

By: bmaz

bmaz — Mon, 16 Mar 2009 16:41:57 +0000

This is just an article describing some of the shenanigans, you should see the pleadings behind the lot of it. Most of the worst ones have been filed under seal from what I am told by the folks I know involved. The ones available on PACER are plenty amusing and infuriating though.

http://www.salon.com/opinion/f.....index.html

By: SebastianDangerfield

SebastianDangerfield — Mon, 16 Mar 2009 16:10:34 +0000

My capacity to be shocked is getting quite dulled but I might just do that just for amusement’s sake. The DoJ has really chucked Louis Brandeis for Lewis Carroll and Jerome Frank for Franz Kafka.

I’ve been up against DoJ Civil Appellate lately in a case that is quite a bit less freighted but still politically charged. And they have been astonishingly disingenuous if not dishonest.

By: bmaz

bmaz — Mon, 16 Mar 2009 16:04:58 +0000

Have you seen the other shit they have pulled in this case? Spend a weekend reading the al-Haramain docket some time. Absurdly enough, the pleading you spoof is easily within their purview.

By: SebastianDangerfield

SebastianDangerfield — Mon, 16 Mar 2009 15:57:36 +0000

I suppose the All Writs Act is available, but addressed to whom? Who oversees the MDL Panel? No court I can see, other than the Supremes in their supervisory capacity over the the federal courts. I would love to see the brief in support of the writ: “To the Honorable Justices fo the U.S. Supreme Court. Please issue a writ of mandamus to the MDL panel to remove the case from Judge Walker’s docket on the ground that the Ninth Circuit cannot be trusted to issue a decision in a case involving national security. They are in fact granola-eating commies and traitors and should all be impeached (except our buddy Jay). And, dear justices, please send the case to the 11th Circuit, since the Fourth has gotten too liberal lately. Kthnxbai. Your BFF the DoJ.”

By: bmaz

bmaz — Mon, 16 Mar 2009 15:52:29 +0000

No clue on the lawyers on McMurray. I know a couple of ket plaintiff’s lawyers on the case out here, but none of the east coast guys. This is probably stupid, but one thought I had was convenience/laziness. The clerks office for SDNY is likely next door, or just down the street, from these guys’ NY office. Maybe they just filed it there knowing that it would be sent over. Okay, I am mostly joking here…..

By: bmaz

bmaz — Mon, 16 Mar 2009 15:48:24 +0000

No appeal, however it is addressable via an extraordinary writ. Not the easiest of avenues, but an avenue nevertheless. I can easily see the government seeking such a writ and pulling some national security mumbo jumbo in an effort to site the consolidation in the forum of their choosing. They would do it in a heartbeat if they felt slighted, and that would be a very cognizable argument under those circumstances I would imagine. There is also known to be back channel pressures placed on the assignment process, which is aided by the fact that, as you note, it is not the most transparent or common process extant. I don not have personal experience on this point, but have talked to those that do and so indicate.

I still arrive at the conclusion that the government was just fine with being sent to the 9th for consolidation. And I still find that to be a curious mistake on their part.

By: SebastianDangerfield

SebastianDangerfield — Mon, 16 Mar 2009 15:43:03 +0000

Yeah, in other words, what he probably should have done is amended his complaint in the existing action. I think the suit may be a clever-clever attempt to forum shop. Or perhaps he’s trying to plead himself out of a problem he’s created in the existing action (which could, one would think, still be cured through amendment). Probably too clever. But if it’s truly a wholly separate and distinct cause of action — one that would not be dismissed on res judicata grounds because the plaintiff attempted to split his claims — then he’s within his rights in filing a new action, and he would have no choice but to file where he has venue, even if he wants to be in Walker’s court (and aside fromt he downsides of the Ninth Circuit in terms of credibility, there is an obvious upside to being in Walker’s court).
BTW, do you know anything about the lawyer(s)? I.e., do you have a sense the lawyer(s) is(are) bright and know(s) what she/he/they is doing, or do you get a sense of flailing about?