The name Joe McCarthy has been coming up, lately. Who was Joe McCarthy?

Senator McCarthy was a bully. In his zeal to uproot all vestiges of Communism or Communist sympathizers, he bullied, scared and threatened his way across Washington, D.C. Everyone was afraid of Joe McCarthy, because they feared being branded as “soft” on Communism. Like Donald Trump, Joe McCarthy shot from the hip. For example, he stated flatly, with no explanation, that there were dozens of Communists in the federal government. He claimed in one speech to have a list in his hands of 205 known Communists in the State Department. Later, in the Senate, he said the number was actually 57. Still later, he claimed it was 81. That alleged list lead to Senate hearings looking for Commies anywhere in the federal government. Overnight, Joe McCarthy became a household name. He became an albatross for the Republicans. Gen. Eisenhower, while campaigning, said he supported Mr. McCarthy’s goals, but not his methods. According to some accounts, in actuality, the President had planned a sharper attack on Sen. McCarthy, but backed down at the last minute.

When the Senator ran his own committee, he destroyed people, based on little more than suspicion. His browbeating tactics in Senate hearings offended his colleagues. But, afraid of what he would do or say, the other Senators said nothing.

In looking into the U.S. Army, he could find no evidence of subversion after weeks of investigation. But, he was convinced the Army had been “soft” on Communists. Frustrated, he started focusing on the case of Irving Peress, a New York dentist. Mr. Peress had been drafted in 1952. In his papers, he had disclosed a former membership in the American Labor Party, a leftist organization. When asked about his political affiliations, he had left that portion blank.

Capt. Peress was promoted to Major in 1953. Sen. McCarthy started a campaign to find out who had promoted Maj. Peress. The question, “Who promoted Peress?” became a conservative rallying cry. All this time, Sen. McCarthy knew that the major had been promoted automatically by the provisions of the Draft Doctor’s Act, a recently passed law which Sen. McCarthy had supported.

When called before the committee, Capt. Peress invoked the 5th Amendment numerous times. He insisted that citing the 5th Amendment did not amount to guilt. Later, Sen. McCarthy demanded that the Army court-martial Capt. Peress. The pressure eventually forced the captain to request a discharge. He was discharged honorably with a promotion to major.

The committee then called on his commander, Brigadier-General Wicker to explain how he was promoted and discharged without a court-martial. BG Wicker, a West Point graduate, had been at Normandy. He had led an Infantry battalion at the key Battle of Brest. He was a hero. He was asked about his approval of the discharge orders for Maj. Peress. Based on advice from the Army counsel, he refused to answer certain questions. The Senator badgered him, and accused him of perjury. He said the general was not fit to wear the uniform.

“Tail-Gunner” Joe had been an enlisted man in the Army during WW II. His abuse of BG Wicker caused many people to turn against Sen. McCarthy. All the general did was approve discharge for an officer who had committed no transgression while in service. As BG Wicker said many years later, he was initially not unsympathetic to Sen. McCarthy. But, as soon as the hearing began, he quickly became disillusioned. Sen. McCarthy, said the general, was an opportunist. The Senator’s abuse postponed Zwicker’s promotion to Major General.

The debacle with BG Zwicker lead to the Army hearings. Sen. McCarthy would hold hearings on live television, the new medium, digging deeper into so-called Army tolerance of Communism. Millions watched as he browbeat and interrogated various Army officials. In one such hearing, the chief legal representative for the Army, Joseph N. Welch pressed the committee about some supposed 130 persons who worked in defense plants and supported the Communist party. Sen. McCarthy jumped into the conversation. He insisted Mr. Welch explain the case of Fred Fisher, a young lawyer who worked in Mr. Welch’s law firm. Mr. Fisher, insisted the Senator, had once belonged to the National Lawyer’s Guild, the “mouthpiece” of the Communist party.

The National lawyers Guild is still around. It is indeed liberal leaning, but it is also independent of any political affiliation. Sen. McCarthy had to know this.

Joseph Welch accused the senator of cruelty. The Senator persisted, demanding to know about Mr. Fisher’s former membership. Mr. Welch famously replied, “Senator, may we not drop this? We know he belonged to the National Lawyer’s Guild. Let us not assassinate this lad further, Senator. You’ve done enough. Have you no sense of decency, sir, at long last? Have you no sense of decency??” When Sen. McCarthy persisted, Mr. Welch cut him off. He reminded him that he could have asked about Fred Fisher any time that day. He sat within six feet of Mr. Welch. He told the chairman of the committee to call the next witness. The gallery then erupted in applause and a recess was called. Sen. McCarthy’s decline began soon after.

Fred Fisher did indeed once belong to the NLG during law school. But, as Mr. Welch pointed out, this was needless trashing of a man at a time when membership in liberal organizations could ruin a man’s career. This line of inquiry served no purpose, other than advancing Sen. McCarthy’s political goals. It was cold-blooded political opportunism and Mr. Welch called it.

So, when persons accuse another of McCarthyism, that is indeed a deep insult. Sixty years ago, the end for “Tail-Gunner” Joe started with one decent man, representing the U.S. Army.

So, Judge Brann’s decision has been appealed and within days, the Third Circuit rejected the Trump campaign’s appeal. I wrote about the lower court decision here. In the Third Circuit opinion, Judge Bibas, a Trump appointee, wrote that voters choose the President, not lawyers. “Ballots, not briefs, decide elections.” The entire three-judge panel rejected the appeal. Judge Bibas wrote the opinion. He noted that outside the courtroom, Trump’s lawyers raised claims of fraud. But, inside the court room, they alleged no fraud. The court was also disturbed by the fact the campaign was contesting too few votes to actually make a difference. Mr. Biden won the Pennsylvania election by 81,000 votes.

Tip for laypersons: courts are very annoyed when a party seeks relief that makes no difference to the lawsuit. That is a very fundamental requirement. That the Tump campaign ignored such a basic requirement for any lawsuit suggests either the lawyers did not share reality with the client, or the Trump campaign just did not care if they annoyed the judge with a pointless lawsuit. See Politico report here. Like the lower court, the court of appeals was flabbergasted that the Trump campaign sought to reject millions of votes when no fraud has been alleged.

See Judge Bibas’ opinion here under “Not Precedential.” Trump for President v. Secretary Commonwealth, No. 20-3371 (3rd Cir. 11/27/2020).

Litigation 101: never go to court with a lawsuit that says even if you win the lawsuit, you do not achieve your desired outcome. Regardless of politics, every judge will ask “why bother?”

The appeal was confined to one narrow issue, did the trial court err when it did not allow the Trump campaign to amend its lawsuit a third time. Judge Bibas was troubled by the fact that the amendment did not allege the Biden campaign was treated differently than the Trump campaign. Yet, the Trump campaign was trying to allege discrimination. Simply calling something “discrimination” did not make it discrimination, said the judge. In other words, the amendment sought to allege discrimination, but it offered no facts in support of that claim.

So, other than the lawsuit was poorly prosecuted and based on no evidence, the Trump campaign did a great job!

The standard for review is “abuse of discretion.” That means the appellate courts are asking if Judge Brann abused his discretion in denying the third amendment. That standard affords the greatest latitude to the trial judge. The chances that the U.S. Supreme Court will accept an appeal of this decision is very low. The Supreme Court accepts each year less than 1% of the appeals requested. Any decision based on “abuse of discretion” is exceedingly unlikely to be accepted for review.

These lawsuits filed by the Trump campaign are remarkably weak and lacking in evidence. I previously wrote about one such lawsuit in Pennsylvania here. Rudy Giuliani himself appeared in the Pennsylvania lawsuit last week. He literally parachuted into the suit, submitting his motion pro hac vice the day of his appearance. Judge Brann, an Obama appointee, but life-long Republican presided. During the hearing on Nov 17, he pressed Mr. Giuliani for answers and appeared unhappy with the answers he received. The Judge asked him during the hearing which standard of review should apply and why. The former U.S. Attorney gave an answer more like Animal House than Lincoln Lawyer. He replied, “the normal one.” … Yes, he really said that.

Standard of review refers to the standard the court should use to review a particular statute. Should the judge look at it with “strict scrutiny” or some lesser standard. With his answer, former Mayor Giuliani betrayed his ignorance. As young lawyers, we quickly learn to tell a judge forthrightly if we do not know the answer to a question. Judges do not have time for evasive answers. Whatever credibility Mr. Giuliani had was quickly lost with that sophomoric response.

Now, Judge Brann has dismissed the lawsuit. The judge found many problems with the lawsuit. He noted that based on allegations of two errant votes, the Trump campaign sought to dis-enfranchise 6.8 million votes. In his final order, the Judge expressed deep annoyance with the lawsuit:

“One might expect that when seeking such a startling outcome, a plaintiff would come formidably armed with compelling legal arguments and factual proof of rampant corruption,” Brann wrote, so much that the court would have no option but to stop the certification even though it would impact so many people. “That has not happened.”

He added that the Trump campaign presented “strained legal arguments without merit and speculative accusations … unsupported by evidence.” When a judge says the plaintiff has filed a monumental lawsuit, but failed to follow through with evidence commensurate with the cause, the plaintiff is really screwed.

Elsewhere, Judge Brann described the plaintiff’s equal protection claim as “Frankenstein’s Monster,” which has been “haphazardly stitched together from two distinct theories in an attempt to avoid controlling precedent.”  That is as clear a slam on the lawsuit’s basis as there is. The judge is saying the plaintiffs lied about their case, so as to present a dubious claim. The court nots that the plaintiffs ask the court to invalidate votes only regarding the Presidential election. The court rightly notes the plaintiffs are essentially asserting the voting procedures were constitutional regarding the other races, but not regarding the Presidential race. Yet, the same voting procedures were used for all races, not just the Presidential race. The court concludes with some annoyance that it is not possible to both hold Pennsylvania’s electoral system constitutional and unconstitutional at the same time.

During the Nov. 17 hearing, after all the lawyers had spoken once, the Judge directed the key question to the plaintiffs: you are alleging two votes were improper, but you are seeking to invalidate 6.8 million Presidential votes, “thereby disenfranchising every single voter in the Commonwealth [of Pennsylvania], can you tell me how this result can possibly be justified.” Two lawyers for the Trump campaign were present, but Mr. Giuliani responded. Mr. Giuliani apparently stumped by the direct question, paused. Then he simply engaged in a lengthy rant about various speculative theories for about ten minutes. The judge asked no follow-up questions, apparently taking Giuliani’s response as a non-answer. See C-Span recording here.

In his decision, the judge essentially accused the plaintiffs of filing a frivolous lawsuit. If I or any lawyer I know had filed such a weak lawsuit, we would expect to be sanctioned by the court. See AP news report here. That is the language used to describe frivolous lawsuits. See the decision here.

Pres. Trump has already appealed this ruling to the Third Circuit Court of Appeals. But, no appeal can improve this evidence.

 

As expected, Ken Paxton has provided generous lawsuits to his former deputies. Four of his recently fired senior assistants have filed suit based on whistle blowing. They allege they were fired because they reported violations of law by AG Paxton. see my prior post about their whistle blower complaints here. The lawsuit rightly notes that AG Paxton defamed the assistants. He referred to them as “rogue” employees. Of course, it will be intercity to see how AG Paxton explains why so many of his top level assistants were “rogues.”

Mr. Paxton fired the assistants just weeks after they reported him to the FBI. His actions represent classic retaliation for whistle blowing. The petition provides detail about the AG’s relationship with Nate Paul, a developer in Austin. The AG had secret meetings with Mr. Paul after Mr. Paul’s offices and home were raided by the FBI. AG Paxton leaned on his deputies to allow the release of documents related to the FBI investigation of Mr. Paul. The petition also states that Mr. Paxton routinely cycles through “burner” cellphones.

But, for the assistants, the final draw came when AG Paxton appointed an outside lawyer to investigate Mr. Paul’s claims that the FBI violated law when it raided his home. The assistants rightly noted that such an investigation as beyond the purview of the AG’s office. They also felt the investigation lacked basis. The outride lawyer then obtained 39 grand jury subpeonas. The assistants believed those subpoenas were beyond th scope of the matter. It appeared the subpoenas were intended to harass law enforcement agencies and to support Mr. Paul’s civil lawsuits.

The lawsuit was filed by James Blake Brickman, David Maxwell, J. Mark Penley and Ryan Vassar.

See San Antonio Express News report.

In 2019, Pres. Trump tired of the head of DHS, Kirstjen Nielsen. So, he fired her. He replaced her with an acting head of DHS, Kevin McAleenan. Mr. McAleenan was later replaced by Chad Wolf. Pres. Trump placed a lot of emphasis on DHS, because that agency controlled immigration rules and regulations. On July 28, 2020, Chad Wolf signed an order removing protections for DACA immigrants. DACA (Deferred Action for Childhood Arrivals) was one of the President’s key targets. But, in placing Mr. Wolf in that position, the White House bypassed DHS regulations regarding succession.

Kevin McAleenan served in an acting capacity. DHS regulations prescribe carefully which agency head will succeed the secretary. The court found the placement of Mr. Wolf as acting head did not satisfy the order of succession then in force. It did not help the agency’s case that while a motion for summary judgment was pending, DHS changed its story about when Mr. Wolf signed that order removing DACA protection. At first it said he signed an order ratifying his prior July 28 order after he was nominated for confirmation on Sept. 10, 2020. Then on Nov. 13, 2020, it said no, Mr. Wolf signed the ratification order before Sept. 10.  The court generously describes the department as “confused” about when Mr. Wolf signed that order. See note 11, p. 21 of Judge Garaufis’ order.

The issue for summary judgment was the extent to which the White House observed the DHS order of succession left by Ms. Nielsen and then by Mr. McAleenan. The last confirmed Secretary was Ms. Nielsen. She resigned in April, 2019. The court denied DHS’s motion for summary judgment, while granting the plaintiff’s motion for summary judgment. It also granted the plaintiffs’ motion for conditional class certification.

The judge indicated some impatience with the agency when it notes that when Mr. Wolf signed the July 28 memo does not matter. The court wished the agency well in finding its own way out of its own “self-made thicket.” All the White House had to do to avoid this mess was to nominate an actual Secretary back in 2019. In four years this administration has had five secretaries of DHS, only two of whom were conformed. This department, more than any other, was in the forefront of Pres. Trump’s most controversial policies. Whether we agree with the policy or not, the government has shown considerable ineptitude.

See the court’s order here.

As lawsuits go, these are pretty bizarre. The Trump campaign has filed at least a dozen lawsuits in several states seeking to overturn the election results. One lawyer, Mark “Thor” Hearne, from St. Louis, filed a lawsuit in the Federal Court of Claims, apparently intending to file in the Michigan Court of Claims. He blamed the error on PACER, the online filing platform. But, he did not explain how PACER was able to cover the cost of a filing fee in a second, wrong court. For those of you who do not file suits on PACER, the PACER system takes you to a second web page to pay the filing fee. For PACER to “accidentally” file your lawsuit in a second court, it would also have to somehow pay for the second lawsuit in the wrong court.

Wrong Court

Too, at least one of the lawsuits filed in the federal court of claims was styled, “Donald J. Trump v USA.” As Ben Ginsberg asks, why would anyone style their lawsuit that way? Typically, you style the lawsuit against the entity you are suing. Was Donald Trump suing the entire USA? Too, when you fie a lawsuit, you want to name the actual opposing party. You are asking the judge to take action against a specific person pr entity. If you sue the USA, who are you asking the judge to issue orders to? But, the title of the lawsuit likely appealed to the real client, Donald J. Trump.

Michigan Court of Claims

“Thor” Hearne then appeared in front of the Michigan Court of Claims, First District, on Nov. 5, 2020. Mr. Hearne explained that a poll watcher said he was told by a poll worker who was told by a second poll worker that he had been told to back-date a ballot. The judge asked how that was not hearsay. Mr. Hearne struggled in trying to explain to the Judge how third-hand testimony was not hearsay. Thor Hearne insisted that for the person who signed the affidavit, he did actually hear it. As if, hearsay testimony might be admissible if the final listener did “actually” hear the third-hand information. But, Mr. Hearne’s lawsuit had so many other defects. The judge listed the many defects in the pleadings at the outset of thee hearing. Among those defects was that the motion for injunction had not been filed. The judge did not have a copy of the motion. Although the lawyer for the Secretary of State did have a copy of the motion in question.

The campaign sued the Michigan Secretary of State. The Trump campaign insisted their poll watcher be allowed to view the recorded videos of each drop box. But, as the opposing lawyer explained, the Secretary of State cannot compel action by the various County boards across the state. The Trump campaign would have to sue each individual county to obtain an order against those entities. Too, there is no right in statute or elsewhere that mandates a voter be allowed to view any videos of persons dropping their ballots in a drop box. The Trump campaign was asking for a remedy that did not exist in the law anywhere.

The Trump campaign also alleged a poll watcher was excluded from watching the vote counting. But, the affidavit did not specify when, where or by whom he was excluded. Thor Hearne was not able to explain anymore than what was in the affidavit.

And, in the end, the lawsuit would have made no difference to the outcome of the election results. Only one ballot was in question. Viewing the videos of the drop boxes may or may not result in any discrepancies. So, the Trump lawsuit was largely symbolic.

Judge Stephens

At the close of the hearing, the judge rejected the motion for injunction. The judge noted the Secretary of State does not conduct local elections. That responsibility lies with the individual counties. The judge noted a prior lawsuit in which the role of the Secretary of State was made clear. So, why, Judge Stephens asked, did Mr. Hearne sue the Secretary of State, again? Thor Hearne said the Secretary of State should issue a directive to the counties to make videos available, if they have such videos. But, as the judge noted, once the ballots are collected from the drop boxes, the ballots are not segregated. Even if the videos showed some malfeasance, no one would know where that ballot was. In the end, the Judge simply noted the Secretary of State had already issued guidance to the counties regarding access to the vote counting. Regarding local county officials, the court has no jurisdiction over those entities. Even if court had jurisdiction, the vote counting was essentially completed by the time of the hearing. So no relief was available. And, there is no legal duty on the part of any official regarding any videos of the drop boxes. The lawsuit was largely symbolic.

See C-Span recording of the Nov.5 hearing here.

Other Lawsuits

In other lawsuits, one lawyer for Pres. Trump, Kory Langhofer, admitted in Arizona that many of the affidavits acquired for these lawsuits were gathered online. The process for gathering those affidavits resulted in some “spam.” Mr. Lahnghofer called his business partner as a witness and called other witnesses, who could not say they were deprived of any votes. Mr. Langhofer said this was not a fraud case. It is not a “vote-stealing” case, the Trump lawyer added.

In another lawsuit in Pennsylvania, Bob Goldstein said in court he was not alleging fraud. Accusing people of fraud was a “pretty big step,” he said. The next day, his law firm withdrew from its lawsuit. In Montana, federal judge Dana Christensen labeled the allegations of voter fraud “fiction.” See Politico news report here. It is very unusual for a firm to withdraw within days of filing the lawsuit. The suit was filed in U.S. district court. That means the lawyers must first obtain approval form the judge. The judge has yet to rule on the law firm’s motion to withdraw.

And, I am just surprised no one has been sanctioned, yet.

 

Social media has become one part of the life of millions of Americans. We see Facebook, Twitter, Instagram pages everywhere. But, how will that work in court? How does a lawyer or person use that sort of evidence in court? With photos, a witness can testify about who took the picture and where the picture has been since its initial creation. The Fourth Court of Appeals adopted a similar authentication process for Facebook posts.

In Walls v. Klein, No. 04-13-00565 (Tex.App. San Antonio 7/9/2014), the lawsuit concerned invasion of privacy, breach of contract, and defamation. Klein testified that he printed off a Facebook page belonging to the other party. The Court of Appeals approved this method for authenticating the document. Mr. Klein said he printed off the page when he still had access to Ms. Walls’ Facebook page. Ms. Walls said no, he printed it off after his access had been blocked. The court noted rightly that such testimony is for cross-examination. It does not pertain to the authenticity of the document. Just like a photo, the witness can testify that he took a given picture on a given day and has retained it ever since. If a second witness wants to say the conditions were cloudy and foggy that day, such testimony applies to the accuracy of the photo, not its authenticity.

See the decision here.

One would think that with a pandemic crashing into our society, OSHA would lead the way in protecting U.S workers. But, no. The Occupational Safety Health Administration is taking a few steps backward. Senior OSHA staff had a six page memo prepared and ready to issue in the Spring of 2020, that would institute protections for workers. The memo was similar to one issued in 2009 in response to the H1N1 virus epidemic. But, the memo was never issued. Eugene Scalia, son of the former Supreme Court justice, likely prevented issuance of the work place protections. He heads the Department of Labor, which oversees OSHA. Mr. Scalia, a former partner at Gibson Dunn Crutcher, where he practiced employment law as a defense lawyer. He acquired some notoriety for overturning government employment regulations.

Instead, OSHA issued a memo requiring employers to record any COVID19 infections that were “work-related.” A career OSHA lawyer, Joseph Woodward, explained that the April memo did not even require employers to inform workers that a co-worker had tested positive for the virus. After much criticism, the April memo was rescinded. No protective guidance was ever issued instead.

OSHA has reduced the number of inspectors. It now has the fewest number of inspectors in 45 years. 42% of senior OSHA leadership positions remain vacant. OSHA enforces some 20 federal whistle blower statutes. Work place whistle blower complaints have surged. Yet, five whistle blower investigator positions remain unfilled.

In April, McDonald’s workers in Chicago submitted two written complaints about unsafe working conditions to OSHA. OSHA simply told McDonald’s management to deal with it. The McDonald’s franchisees were not practicing social distancing. Two workers contacted the virus, but management did not inform the co-workers. The McDonald’s workers eventually went on strike due to the unsafe working conditions. The workers later filed complaints with the Chicago Board of Health. A state district court eventually issued a preliminary injunction against McDonald’s forcing them to take precautions.

When the meat-packing plants erupted with infections in April and May, Pres. Trump issued an executive order designating meat-packing plants as “critical” to national defense. That designation meant the plants had to remain open. OSHA issued no guidance on how to stay open safely. Later, when three workers died at one plant from the virus, OSHA conducted an inspection. But, the inspection was hurried and not detailed. Many issues remain in the meat-packing plants which the inspection glossed over.

During one lawsuit over unsafe conditions at a meat-packing plant, an assistant area director for OSHA testified that senior OSHA officials had designated all COVID19 complaints as “non-official.” That designation meant physical inspections were not required. OSHA has dropped the ball for American workers.

See the New Yorker report for more information.

Teachers are more and more being asked to bear the brunt of the battle with COVID19. As I mentioned in a prior post, Gov. Abbott has ordered that school districts provide in-person instruction to any student desiring it. See my prior post here.

Yet, neither the state or federal governments have offered the districts any additional resources to meet this need. The teachers in Northeast Independent School District fear for their safety. The district expects about half of its students to come on campus for in-person teaching. But, the district is not providing adequate safeguards. The Texas State Teachers Association has filed a grievance with the Northeast ISD on behalf of those NEISD teachers.

NEISD is the second largest district in San Antonio. It has some 60,000 students and 80 campuses.

The union objects to the lack of limits on the classroom size. Through Phase 3, the class sized had been limited to 12 students. But, now in Phase 5, there is no size limit. The district has also not adequately distributed personal protective equipment (PPE). See San Antonio Express-News report for more information. I expect as the school year progresses, there will be more such grievances.

The Trump administration issued an Executive Order that changes the classification of top civil servants and makes it easier to fire them. The order targets those in policy-making positions. Experts indicate the move would affect anywhere from tens of thousands to hundreds of thousands in a workforce of some 2.1 million. The move would affect many attorneys, public health experts, scientists and regulators. See Stars and Stripes article here. In an administration that disfavors expertise, this new regulations would effectively muzzle many federal experts. This change would also remove these folks from union membership.

The Office of Management and Budget claims the new regulations will make top level civil servants more accountable. But, as someone who represents civil servants, I can say there is ample accountability built into the system, already. As with most private sector jobs, if you write someone up a few times with good, objective written warnings, then  you can terminate any federal worker. That the OMB argues there is a lack of accountability suggests to me they have some other ulterior motive. Or, they simply prefer to fire someone within days, instead of the months necessary to allow that person to improve his/her job performance.

And, given this administration, they may simply be angry with those scientists who keep disagreeing with the President about the coronavirus.

Ronald Sanders, a 30 year long civil servant, resigned from his high level civil servant position over this proposed new regulation. Mr. Sanders was the chair of the Federal Salary Council. Mr. Sanders is certain this new regulation is designed to make top level civil servants political. See The Hill news report.