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A lot has happened since we last convened, and we’re here to talk about it. What’s the standard for “incitement”? How does the 25th Amendment work? Can Amazon really kick Parler off their servers? All that and an update to last week’s discussion about Biglaw’s involvement in Trump’s effort to pressure Georgia officials to “find” votes.
Following the Democratic sweep at the ballot box in Georgia, Republican officials are racing to tighten election laws to prevent a repeat of the purported massive electoral fraud they claim took place this cycle. At the same time, Trump’s handpicked Peach State fraud buster, Acting U.S. Attorney for the Northern District of Georgia Bobby Christine, is admitting privately to his staff that actually there isn’t any fraud at all. Ooopsie!
“Quite frankly, just watching television you would assume that you got election cases stacked from the floor to the ceiling,” Christine said Monday on a call with lawyers from the Northern District Office which was leaked to the Atlanta Journal-Constitution. “I am so happy to find out that’s not the case, but I didn’t know coming in.”
Why exactly he didn’t know it coming in is not clear — the governor and secretary of state have been saying as much for weeks, and so have the Georgia Bureau of Investigations and the FBI. Did he think officials in his own state were lying about easily verified matters of fact and law?
Nor is it clear why he hasn’t announced his findings publicly, particularly when the integrity of the ballot is a matter of such grave national importance. Did he miss the whole violent insurrection last week by people who’ve been led to believe this election was somehow stolen?
“I would love to stand out on the street corner and scream this, and I can’t,” Christine explained to the staff of the office he just took over, without explaining why exactly it’s impossible to disabuse the public of dangerous misconceptions about the presidential election. Bill Barr was able to come out and state publicly there wasn’t rampant fraud, and nothing bad happened to … Oh, well, yes, there’s that.
Last week, President Trump abruptly shoved aside the U.S. Attorney for Northern District of Georgia, Byung J. “BJay” Pak, and replaced him with Bobby Christine, the U.S. Attorney for the Southern District of Georgia. Just hours after the infamous phone call where the president pressured Secretary of State Brad Raffensperger to “find 11,780 votes, which is one more than we have” and described Pak as “your never-Trumper U.S. attorney there,” Pak emailed his colleagues announcing that his planned January 20 resignation was being bumped up due to “unforeseen circumstances.”
According to the Wall Street Journal, those “unforeseen circumstances” were that president was pissed he wouldn’t arrest anyone for election fraud.
A senior Justice Department official, at the behest of the White House, called the Trump-appointed U.S. Attorney Byung J. Pak late on the night of Jan. 3. In that call the official said Mr. Trump was furious there was no investigation related to election fraud and that the president wanted to fire Mr. Pak, the people said.
Bypassing the first assistant Kurt Erskine, Christine was tasked “by written order of the President” to run both offices concurrently, prompting suspicion on these pages and elsewhere that something corrupt was afoot. And indeed Christine showed up within two days trailed by two election lawyers from his own, smaller office and an outside attorney with experience in public corruption prosecutions.
“Mr. Pak’s forced resignation against the backdrop of White House insistence to prosecute purported election offenses is then followed by the curious appointment of an outsider who immediately brings in election prosecutors from outside the district — it all gives rise to a ready inference that the newcomers are willing to pursue what was troubling enough to cause Mr. Pak to resign,” John Horn, a former U.S. attorney for the Northern District of Georgia told the Washington Post.
“I’m not coming up here to be an election lawyer. I’m not coming here for that purpose,” Christine blithely assured the lawyers on the call, although on his very first day in Atlanta he met with the FBI, GBI, and DHS to review the office’s handling of the election cases.
When asked why Erskine wasn’t allowed to take over, as would be standard practice, Christine demurred, “I don’t think that’s a question I’m going to get into. I appreciate you asking it; I empathize for why you would ask it, but I’m not going to get into that.” Which was no doubt reassuring to the staff attorneys wondering exactly what havoc awaits them in the time between Monday and whenever Joe Biden manages to get someone competent in to the Northern and Southern Districts of Georgia.
TL, DR? Just because the coup didn’t work doesn’t mean it wasn’t corrupt as hell.
Trump’s pick for U.S. attorney in Georgia dismisses election fraud claims: ‘There’s just nothing to them’ [AJC]
White House Forced Georgia U.S. Attorney to Resign [WSJ]
U.S. attorney in Georgia: ‘There’s just nothing to’ claims of election fraud [WaPo]
Elizabeth Dye lives in Baltimore where she writes about law and politics.
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As legal tech pros have learned over the past several months, an IT provider is likely to get raked over the coals whenever a Zoom call fails — for any reason.
A more recent trend: Law firm helpdesks have been receiving emails showing an internet “speedtest,” with senders — often inaccurately —
presenting this as proof that there are problems with a particular network.
In this environment, how can legal tech pros demonstrate to sometimes-skeptical clients what’s really causing a particular problem?
Join Pingman Tools and Above the Law on February 10th at 1 p.m. ET for a discussion of the connectivity challenges that arise when supporting the remote law firm.
What you’ll learn:
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There’s a colorable argument that Donald Trump’s speech before his followers launched a violent assault on the U.S. Capitol didn’t cross the legal threshold required to hold him criminally liable for inciting a riot. Others disagree and see this as a clear breach. There’s a very smart argument that even if this doesn’t superficially cross the line, it constitutes incitement because the law’s reliance on “immanence” is anachronistic in a world of social media. In any event, there’s no credible argument that criminal liability is a prerequisite for an impeachment and conviction unless you’re a shameless hack.
But Rudy Giuliani’s words that day blew past the incitement standard and spiked the ball in the Brandenburg endzone by telling the rowdy mob that the time had come for “trial by combat” with Democratic legislators and election officials.
Thankfully, Rudy has an answer for anyone who thought he was calling for violence when he explicitly called for violence: blame “Game of Thrones.”
“I was referencing the kind of trial that took place for Tyrion in that very famous documentary about fictitious medieval England,” Giuliani told Samuels. “When Tyrion, who is a very small man, is accused of murder. He didn’t commit murder, he can’t defend himself, and he hires a champion to defend him.”
George R.R. Martin has said his work is inspired by the War of the Roses, but it’s a bit of a stretch to call it a dramatized documentary of medieval England, no matter how many dragons Richard Plantagenet raised. Does Rudy not understand or grasp what was happening in Game of Thrones? And I get that no one understood what was happening in season 8. The sexposition was pretty clear. And if he did watch the show, what character does he think he’s working for right now other than Joffrey? Is Rudy Cersei in this analogy? Siblings are a little different than screwing your cousin for years, but it’s in the ballpark.
Though Rudy has stumbled into a point: “Game of Thrones” has embarrassingly reintroduced Americans to the concept of trial by combat and they’re asking for it as if it’s not the historical and intellectual equivalent of using the ordeal by water to root out witchcraft. It’s still technically on the books in New York, prompting a fantasy and sci-fi loving attorney to ask for it. The judge declined, and the lawyer later ended up in prison for a kidnapping plot, a sign of how this fetishization of primitive violence can spill over. Knock it off, people.
Not that this defense does all that much for Rudy’s cause. Giuliani is saying, “if you don’t think the legal system is working for you, hire someone to violently lash out and kill folks on your behalf,” which seems like… exactly what happened later that day. Almost like there’s a direct line from Giuliani’s speech to a dead Capitol Police officer.
Imagine how much better off we’d be if Rudy had just binged Sex and the City instead.
He’s such a Samantha.
Rudy Giuliani says his ‘trial by combat’ comment during Trump’s January 6 rally was a ‘Game of Thrones’ reference, not a call to violence [Business Insider]
The Confederacy Finally Stormed the Capitol [The Nation]
Incitement, Imminence, and Free Speech: The Internet is a Game Changer [Dorf on Law]
Earlier: Judge Admits Trial By Combat Is Available In New York… Then Declines To Order
Trial By Combat Attorney Going To Need Those Fighting Skills In PrisonIt
Rudy Giuliani Challenges Antifa To Fight Him Mano-a-Mano
Alan Dershowitz Willing To Defend Donald Trump Again, Shocking Absolutely No One
Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.
(Dan Eckhart, counsel to Adam Christian Johnson, the Florida man who appears in a viral photo taken during the attempted coup at the U.S. Capitol, where he’s seen carrying House Speaker Nancy Pelosi’s lectern while he smiles and waves, offering some frank comments about defense strategy for his client’s case.)
Staci Zaretsky is a senior editor at Above the Law, where she’s worked since 2011. She’d love to hear from you, so please feel free to email her with any tips, questions, comments, or critiques. You can follow her on Twitter or connect with her on LinkedIn.
Need break from the horrible details being revealed from the attempted coup and think Impeachment 2: Electric Boogaloo promises to be more of the same partisanship that characterized the first installment of the franchise? Well, then maybe some good, old fashioned bonus news will provide the perfect distraction.
Morrison & Foerster went ahead and announced their bonuses yesterday. Unsurprisingly, the firm’s year-end bonuses match the prevailing market rate, and are subject to the firm’s usual hours requirement. They’re also handing out special bonuses, which do not come with an hours requirement. These special bonuses are above market — at least for first-year associates (first-years will get bonuses of $10,000 compared with $7,500) — and will match the market for other class years. Here are the bonus scales at the firm:
Year-end bonuses:
| Class Year | Bonus |
| Class of 2020 | $15,000 (prorated) |
| Class of 2019 | $15,000 |
| Class of 2018 | $25,000 |
| Class of 2017 | $50,000 |
| Class of 2016 | $65,000 |
| Class of 2015 | $80,000 |
| Class of 2014 | $90,000 |
| Class of 2013 (including prior years) | $100,000 |
Special bonuses:
| Class Year | Bonus |
| 2019 | $10,000 |
| 2018 | $10,000 |
| 2017 | $20,000 |
| 2016 | $27,500 |
| 2015 | $32,500 |
| 2014 | $37,000 |
| 2013+ | $40,000 |
The firm is also offering extra money for super high billers — those who racked up 2,500+ hours — according to the following schedule:
| Legal Service Hours | Additional % of Class Year Bonus |
| 2,500-2,699 | 30% |
| 2,700-2,899 | 40% |
| 2,900+ | 55% |
Bonuses will be paid on February 12th. You can read the full memo on the next page.
Remember, we depend on ATL tipsters when it comes to bonus news at other firms. As soon as your firm’s bonus memo comes out, please email it to us (subject line: “[Firm Name] Bonus”) or text us (646-820-8477). Please include the memo if available. You can take a photo of the memo and send it via text or email if you don’t want to forward the original PDF or Word file.
And if you’d like to sign up for ATL’s Bonus Alerts, please scroll down and enter your email address in the box below this post. If you previously signed up for the bonus alerts, you don’t need to do anything. You’ll receive an email notification within minutes of each bonus announcement that we publish.
Kathryn Rubino is a Senior Editor at Above the Law, and host of The Jabot podcast. AtL tipsters are the best, so please connect with her. Feel free to email her with any tips, questions, or comments and follow her on Twitter (@Kathryn1).
(Photo by Win McNamee/Getty Images)
A week ago, I witnessed the horrible events at the U.S. Capitol Building. The image of a malcontent sitting on a Congresswoman’s desk and a shirtless man wearing a buffalo hat standing in the Senate chambers reflected the state of chaos the country was in.
My immediate reaction was that everyone involved should be treated as though they were foreign invaders and punished accordingly. As for President Donald Trump, he needed to be quiet for the rest of his term or Vice President Mike Pence and the Cabinet should quiet him down by threatening to invoke the 25th Amendment. What happened that day destroyed any remaining credibility with his more rational supporters. While he may not have intended for this to happen, his words might have had a role in starting it.
Now before some of you dismiss this as another “I Hate Trump” column, know that I have been more sympathetic to Trump than others. I have tried to be neutral or fair when covering him while many in the media wanted his administration to fail just because their favored candidate did not win.
I certainly do not agree with the vulgar things he said or tweeted about women, minorities, the disabled, foreigners, journalists, Democrats, his election opponents, the poor, the “poorly educated,” and I’m sure a lot more. But behind his bluster, he had some good ideas and most of his ideas that I disagreed with should be given a chance. And I believed that some of his more controversial provisions would be ignored by Congress or struck down by the courts.
I’ve heard the rationalizations for what happened. They said the protests last summer were worse in terms of scope, casualties and property damage. Or the media and Big Tech were treating them and covering the event unfairly. Or if Antifa or Black Lives Matter did the same, they would be considered heroes and patriots and the protests would be considered “mostly peaceful.” Finally, those people were extremists and only represented a fringe of the population that got the most media attention.
They might have a point. But regardless, this insurrection made a few things clear.
First, if Trump was somehow able to reverse the election results and get a second term, there will be no peace for a long time. Democrats will be up in arms and there will be greater calls to resist. Trump’s supporters will believe that violence and extremism can force the government to see things their way. Protests will be met with counterprotests that will likely end violently.
Second, Trump will not achieve unity in government. Congressional Democrats will likely try to block or hamstring anything that he does using whatever procedural means possible. Their constituents will demand it, or they will replace them with someone who will.
Finally, the rest of the world is likely to take the United States less seriously under Trump. Because of his calls to put America first, foreign nations might exclude the U.S. when forming alliances and trade pacts. Because of Trump’s inflammatory statements about COVID-19 — like calling it the China Virus or Kung Flu — other countries will think that the U.S. is not taking it seriously. As a result, they may continue to ban Americans from entering until some time after the entire population has been vaccinated.
It is unfortunate that it took an insurrection for President Trump to acknowledge his defeat. It will not be without consequences. He is on track be the first president to be impeached a second time — with some Republican support — although a Senate conviction at the end of his term is unlikely.
Despite this, I think he could still be redeemable to the moderates and maybe a Democrat or two if he took some remedial action.
He can start by giving a public, sincere, concession speech. There he will acknowledge President-elect Biden’s win and offer to fully cooperate with the transition process. He should also tell his supporters to acknowledge the new president-elect and vice president-elect. While he does not have to agree with Biden’s policies or even like the man, he should pledge at least give him a chance and not resort to childish whining like wanting his government to fail.
He must not make any claims about the election being stolen, make snide comments or use code words that could incite more chaos. It has gotten to the point where people are scrutinizing every word Trump says to see if it will incite violence, even if Trump does not intend it. And he must urge his supporters to refrain from protesting or even leaving their houses.
Second, Trump should offer to meet with Biden between now and the inauguration and respect Biden’s decision to decline if that is what he chooses. They probably will not have much to talk about but the image of both of them together could start the nationwide healing process and reduce the chances of violence at the inauguration.
Finally, once he is out of office, Trump should take some time off from the public eye for a while. A long while. He should stay away from social media altogether. He should spend time with his family or play golf at one of his courses.
Last week’s insurrection was the last straw for some Trump supporters. There is no question that he lost the election and even if he won, his second term would have been a long, miserable four years. Even friendly publications such as the New York Post and the Wall Street Journal have demanded that he stop his antics or resign. It has cemented his legacy and could create more headaches for him after he leaves office. If Trump wants to minimize damage to himself and start the healing process, he needs to take genuine action to ensure that the transition of power will be peaceful. Even if it means doing the one thing he hates — admitting that he lost.
Steven Chung is a tax attorney in Los Angeles, California. He helps people with basic tax planning and resolve tax disputes. He is also sympathetic to people with large student loans. He can be reached via email at sachimalbe@excite.com. Or you can connect with him on Twitter (@stevenchung) and connect with him on LinkedIn.
Gen. Mark Milley, chairman of the Joint Chiefs of Staff, in a pre-recorded speech admitting he made a “mistake” appearing with President Trump during the George Floyd protests outside the White House.
WASHINGTON: The Joint Chiefs of Staff, in a public message unlike any ever issued by the nation’s top military leaders, today condemned last week’s attack on the US Capitol.
Calling the riotous insurrection “a direct assault on the U.S. Congress, the Capitol building, and our Constitutional process,” the chairman, Gen. Mark Milley, Vice Chairman Gen. John Hyten and the other six members of the Joint Chiefs all signed a memo to the Joint Force saying:
“As service members, we must embody the values and ideals of the nation. We support and defend the Constitution. Any act to disrupt the constitutional process is not only against our traditions, values, and oath; it is against the law.”
They also note that the US military remains fully committed to “protecting and defending the Constitution of the United States against all enemies, foreign and domestic.” I don’t think we need to belabor their inclusion of the word domestic.
Interestingly, the memo does not appear on the JCS website or on the official Pentagon website, defense.gov.
The uniformed leaders say they “witnessed actions inside the Capitol building that were inconsistent with the rule of law. The rights of freedom of speech and assembly do not give anyone the right to resort to violence, sedition and insurrection (emphasis added).”
In a clear signal meant to both reassure faith in our democracy but also to reassert that the military has absolutely no role to play in any action against the federal government– “stay focused on the mission,” the memo says.
“We support and defend the Constitution. Any act to disrupt the Constitutional process is not only against our traditions, values and oath; it is against the law,” they note.
Lest anyone in the services harbor any doubts, they assert that “President-elect Biden will be inaugurated and will become our 46th Commander In Chief.
“To our men and women deployed and at home, safeguarding our country — stay ready, keep your eyes on the horizon, and remain focused on the mission. We honor your continued service in defense of every American.”.
(Photo by Apu Gomes/Getty Images)
It really was only a year ago that law schools honored Lin Wood. For that matter, it was only 2019 when Clint Eastwood made a movie celebrating Wood (Sam Rockwell’s character was a composite of Wood and the rest of the Richard Jewell team). Now he’s facing Rule 11 sanctions in Detroit, got kicked off the Carter Page case in Delaware, and gotten permabanned from Twitter because of… this sort of stuff.
But that was then and this is now. Mercer Law School’s dean has joined other law school chiefs in denouncing the violent insurrection last week, but when the school posted this on the official Facebook page, students and alumni started pushing back hard on the fact that the school’s mock trial courtroom is still named after the professionally embattled attorney.
Thank you for joining this statement, but at the moment our school has a courtroom bearing the name of a man who played large part in stoking the fires of this attempted coup…. We have too many notable, worthy alumni to have his name on anything inside our school.
***
You need to give Lin Wood his money back and disavow that absurd excuse for an alumnus.
***
Rename the courtroom. Give the money back and do the right thing. It’s not worth it to be on the wrong side of history. You have the chance now to do the right thing.
***
Seemingly small things matter. Words/gestures are important and powerful. Rename the courtroom.
And so on and so on.
Wood gifted the school $1 million to earn his name on the mock courtroom, but at this point the school has to wonder if a $1 million commitment is worth having your classroom named after a lawyer who just advocated for the assassination of the vice president on social media. Petitioners are reportedly being told that this goes above the dean’s pay grade and directed to deliver complaints to Mercer University’s president.
On the other hand, the school only dropped the “Walter F. George” name in 2018, an inveterate segregationist who led the pushback against Brown v. Board, so Mercer’s not known for swift action.
Law schools have confronted the uncomfortable alumnus problem a lot over the past year. An effort to strip Bill Barr of his honorary degree and rename a conference room named in his honor seems to have stalled at George Washington. And while Barr certainly deserves to lose every accolade he ever hustled in the first place, he pointedly did not spend the last few months feeding the election fraud delusion that exploded last week. So… congratulations on doing the bare minimum.
But it’s a serious issue for academic institutions. What happens when the people writing the checks dishonor themselves? Going forward, it’s basically malpractice for a university legal department not to include some sort of escape clause for the — in most cases, unlikely — event that a donor turns out to murder kittens on YouTube or something. Institutions can’t keep placing themselves in these awkward positions.
By the way, Chambers still has Wood listed as a Band 1 First Amendment lawyer? That might not be the right ranking for someone whose work a court just described as a “toxic stew of mendacity.” Just sayin’.
Yikes, It’s Not Even Been A Year Since Law Schools Were Honoring Lin Wood
Law School Faculty Wants To Strip Bill Barr Of Degree
Citing Lin Wood’s ‘Toxic Stew Of Mendacity,’ Delaware Judge Tosses Him Off Carter Page Suit
Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.