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Ocelot II

Ocelot II's Journal
Ocelot II's Journal
December 6, 2022

On Grave-Dancing

Once again, a famous person who held distasteful political beliefs has passed away, and the grave-dancing has commenced. This time it was Kirstie Alley, an actress famous mostly for her long-standing role on Cheers. She was also an avowed conservative (although she withdrew her support for TFG in 2020 and announced she wouldn't vote for either candidate), and a Scientologist. Accordingly, some seem to think it's OK to celebrate her death because she's an "enemy."


My own criteria for acceptable grave-dancing (YMMV) upon the death of someone whose politics we deplore require considering the following factors:

1. Was the person currently causing a significant amount of social discord, suffering, or other trouble such that their demise will make a noticeable difference in people's lives? Or were they old adversaries who were no longer involved in any kind of public life; or people whose impact was merely annoying, but insignificant?

2. Did they have family, friends and/or associates who genuinely loved them, or were they so disagreeable or toxic that they won't be missed by anyone?

3. Did they ever do anything good or useful, irrespective of their politics; i.e., did they support good causes, donate generously to charities, or provide entertainment through their art, music, acting, etc.? Were they kind to children and animals? Or were they consistently greedy, uncharitable, mean, disinclined to help people or do anything to make their lives easier?

4. Did they contribute negatively or positively to public discourse; that is to say, did they express their opinions, however wrong-headed they might have seemed, courteously and rationally, or as insulting, hateful trolls?

Applying these criteria, I can't think of any reason to dance on Kirstie Alley's grave. She was just an actress with political opinions contrary to mine. I also didn't dance on the graves of John McCain, George H.W. and Barbara Bush, or Bob Dole. I didn't agree with them but I didn't hate them. In fact, the only graves I can anticipate dancing on, and might even do so with pleasure, would be Trump's and Putin's. They meet all of my negative criteria. As to other "enemies," I offer the wise words of Walt Whitman, from Leaves of Grass, written following the Civil War.


WORD over all, beautiful as the sky!
Beautiful that war, and all its deeds of carnage, must in
time be utterly lost;
That the hands of the sisters Death and Night, incessantly
softly wash again, and ever again, this soil'd world:
…For my enemy is dead—a man divine as myself is dead;
I look where he lies, white-faced and still, in the coffin—I
draw near;
I bend down and touch lightly with my lips the white face
in the coffin.
November 8, 2022

I feel pretty much the same way.

After TFG was defeated in 2020 I thought, Finally we'll be rid of that toxic lunatic and things will get back to normal again. But then there was all that election fraud nonsense and crazy Rudy saying mad things in the parking lot of a landscape company and 60+ lawsuits and 1/6, and pretty soon it looked like TFG was going to be the political equivalent of long covid - you survived and sort of recovered but the unpleasant after-effects just won't go away and you don't know when they will, if ever.

So we hope for the best but expect the worst, and the outcome probably will be something in-between and in varying degrees of awful, depending on where you live. We'll have to carry on but we won't know for awhile what the final picture will be - probably not Nazi Germany but maybe some kind of "soft" fascism or something like The Troubles of Northern Ireland, or maybe just protracted struggles in the courts. The best case scenario is that Biden vetos everything coming out of a GOP-dominated Congress, but even that is just a stalemate. And what might happen in 2024 is anybody's guess. It's the uncertainty and the sense that something really bad could happen that makes me feel like the character in the Li'l Abner cartoon with the storm cloud over his head. I'm old but given my ancestors' tendency toward longevity I could be around for another 20 years or so, and right now I'm just hoping those last years don't suck too much.

September 9, 2022

Oh. My. God. This opinion should be required reading in every civil procedure class

in every law school in the country. I believe one of TFG's Lawyer Barbies, Alina Habba, was responsible for the dog's breakfast of a complaint, and she was righteously whacked upside the head. Even TFG's other incompetent lawyers think Habba is incompetent. https://www.thedailybeast.com/alina-habba-the-trump-lawyer-the-rest-of-trumps-legal-team-loathes

A few gems from the opinion:

What the Amended Complaint lacks in substance and legal support it seeks to substitute with length, hyperbole, and the settling of scores and grievances.

Plaintiff’s Amended Complaint is a quintessential shotgun pleading, and “[c]ourts in the Eleventh Circuit have little tolerance for shotgun pleadings.” Vibe Micro, Inc. v. Shabanets, 878 F.3d 1291, 1295 (11th Cir. 2018). Such pleadings waste judicial resources and are an unacceptable form of establishing a claim for relief.

To say that Plaintiff’s 193-page, 819-paragraph Amended Complaint is excessive in length would be putting things mildly. And to make matters worse, the Amended Complaint commits the “mortal sin” of incorporating by reference into every count all the general allegations and all the allegations of the preceding counts.

Perplexingly, Plaintiff appears to argue that the Defendants obstructed investigation Crossfire Hurricane by contributing to the initiation of Crossfire Hurricane. That Defendants could have obstructed a proceeding by initiating it defies logic.

Notably absent from the Amended Complaint, though, is any allegation that any Defendant interfered with law enforcement with respect to the commission or possible commission of any federal offense. Plaintiff endeavors to significantly broaden this provision to criminalize the dissemination of any purportedly misleading information, regardless of any connection to some federal offense.

The federal wire fraud statute prohibits “only deceptive schemes to deprive the victim of money or property”—not “all acts of dishonesty.” Id. With this predicate act, Plaintiff tries to fit a square peg into a round hole. The alleged harm Plaintiff describes to his “political and/or business reputation” is not the type of harm the wire fraud statute remediates.

Plaintiff offers nothing plausible in support to suggest that Defendants had an illegal purpose or an intent to commit racketeering acts. These allegations fail for the same reasons the conclusory allegations of discrimination failed in Iqbal: they are “an unadorned, the-defendant-unlawfully-harmed-me accusation.” Iqbal, 556 U.S. at 678. Moreover, neither politically opposing Plaintiff, disliking Plaintiff, nor engaging in political speech about Plaintiff that casts him in a negative light is illegal. Without an illegal purpose plausibly alleged in the Amended Complaint, Plaintiff has failed to allege a RICO enterprise.

Moreover, many of the statements that Plaintiff characterizes as injurious falsehoods qualify as speech plainly protected by the First Amendment. Some are statements of opinion based upon Plaintiff’s four years in office... Because Plaintiff has failed to allege the essential elements of an injurious falsehood claim, this count must be dismissed. And as for Count IV, the conspiracy allegations are formulaic, conclusory, and implausible. Moreover, “the gist of a civil action for conspiracy is not conspir[ing] itself but the civil wrong which is done pursuant to the conspiracy and which results in damage to the plaintiff.” ..Without the underlying injurious falsehood claim, there can be no conspiracy to commit injurious falsehood.

In Count V, Plaintiff sues: his own Deputy Attorney General, Rod Rosenstein; formerDirector at the FBI, James Comey; former Deputy Director of the FBI, Andrew McCabe; lawyers for the FBI, Kevin Clinesmith and Lisa Page; an official with the Department of Justice, Bruce Ohr, and his wife Nellie Ohr; and an FBI agent, Peter Stzok, for malicious prosecution. But Plaintiff was never prosecuted... An Inspector General Report specifically explained that the investigation was not predicated on DNC information or the Steele Dossier, but on a tip from a friendly foreign government. Of course, Plaintiff is free to disagree with the conclusions of the Inspector General’s Report. But, as I have already cautioned, he may not misrepresent it in a pleading, and he certainly may not misconstrue it in an attempt to offer support for this ill-fated claim.

Count X reflects the high-water mark of shotgun pleading and is accordingly dismissed. And it is dismissed with prejudice, as none of the underlying claims survive for which, even if properly plead, Defendant Clinton could be held liable under an agency theory.

It is true that under Rule 15 “[t]he court should freely give leave when justice so requires.” Fed. R. Civ. P. 15(a)(2). But a district court need not allow amendment “where amendment would be futile.” Bryant v. Dupree, 252 F.3d 1161, 1163 (11th Cir. 2001). It is not simply that I find the Amended Complaint “inadequate in any respect”; it is inadequate in nearly every respect.

Defendants presented substantively identical arguments in support of dismissal in the earlier round
of briefing on Plaintiff’s original Complaint. But despite this briefing, Plaintiff’s Amended Complaint failed to cure any of the deficiencies. Instead, Plaintiff added eighty new pages of largely irrelevant allegations that did nothing to salvage the legal sufficiency of his claims. The inadequacies with Plaintiff’s Amended Complaint are not “merely issues of technical pleading,” as Plaintiff contends, but fatal substantive defects that preclude Plaintiff from proceeding under any of the theories he
has presented. At its core, the problem with Plaintiff’s Amended Complaint is that Plaintiff is not attempting to seek redress for any legal harm; instead, he is seeking to flaunt a two-hundred-page political manifesto outlining his grievances against those that have opposed him, and this Court is not the appropriate forum.


If any lawyer ever deserved crushing Rule 11 sanctions it's Alina Habba. Wadda maroon.
June 25, 2022

I have always been a pretty committed institutionalist, but

after watching the 1/6 hearings so far and reading the recent opinions of a no-longer-legitimate Supreme Court, as off this evening I'm kind of like, "FUCK IT! BURN IT ALL DOWN!" We don't have the country we thought we had, or even could have had, because too goddamn many people in power suck and too many other people like it that the people in power suck, and the system just does not fucking work. Maybe this country is just too big and complicated for the original system to work, or maybe it never really did but for 200 ears wheezed along just well enough for us to think we were the Shining Fucking City On The Shining Fucking Hill and didn't notice the rot in the basement. Or chose not to notice it.

So the gaping holes in the system allowed TFG to crash through the guard rails that were really only made of toilet paper straight from Mitch McConnell's bathroom, and 2/3 of the Supreme Court just stood there and said, Hell, yeah, as the car rolled down the embankment.

The founders knew it was all an experiment anyhow, and I guess the lab just blew up.

May 25, 2022

But the obvious question is, *why* do they want to own guns?

More specifically, why do people want to own the sorts of guns that are useful and intended only for killing many people in a short period of time? People want guns for hunting. My dad owned guns - a few rifles and shotguns for hunting, like everybody else's dads. It was no big deal. Every fall he'd go pheasant hunting and we'd have pheasant for Thanksgiving instead of turkey. But you can't hunt pheasants with an AR-15, at least not if you want anything left of them to make a meal with. Some people have a gun at home for protection, but you don't need an assault-type weapon, just one you can access quickly and don't need to aim accurately, like a shotgun. You don't need to turn a home invader into hamburger.

So who are the people who want multiple military-style guns, and why do they want them? I think the whole gun issue has to be analyzed from the demand side as well as the supply side. What is it about guns, especially those kinds of guns, that makes some people fetishize them? And that's what it is - a fetish. Some people have assigned meaning to guns far beyond their use as a common tool for hunting or self-defense. To some, guns are such a powerful symbol of manly American patriotism that any attempt to restrict their ownership or use is tantamount to treason. Where did this bizarre fixation come from? A lot of different places, probably, starting with the individualistic cowboy fantasy, the myth of American exceptionalism and the rise of toxic masculinity. All this as been amplified by the NRA, which once was just a sportsman's organization but in the '70s became a tool of the gun manufacturers, and which turned gun ownership into a non-negotiable right-wing idee fixe. And many people - mostly white men who are convinced that the commies are going to sap their precious bodily fluids if they don't keep an arsenal of weapons to ward off an oppressive government, as well as insecure, disturbed boys whose revenge fantasies are fed by online violence porn - are now convinced that they need guns like they need air and food.

I don't know how to change this.

May 4, 2022

What is meant by "legitimate"?

The pertinent dictionary definition is "accordant with law or with established legal forms and requirements." So in that sense, the court is legitimate. It exists and operates in accordance with the Constitution and federal statutes. What it has become, however, is a legally established and therefore "legitimate" body that has lost the confidence of a large sector of the population. It exists in the first place as a branch of government intended to provide an ostensibly neutral arbiter of the law and thus a check against the political tendencies of the other two branches. Some of its decisions since its creation have been politically-motivated and some have been downright bad, but overall it has at least seemed neutral and fair enough that the other branches and the people have been willing to accept its decisions as reasonable applications of the law that they were willing to accept even if they didn't agree.

It started to slide, I think, with Bush v. Gore, which was such a bad, dumb, poorly-reasoned and disingenuous opinion that its goal - to achieve a particular political outcome by twisting the law and the facts of the case - was screamingly obvious. It's gone to hell in the proverbial handbasket during TFG's maladministration with the addition of overtly biased and arguably unqualified justices, and now the draft opinion in Dobbs shows beyond doubt that the court is just another political body, and as such will have lost the confidence of a whole lot of us that our cases can have a chance at a fair hearing. That's the whole reason for a court to exist - to give all cases before them a fair hearing - and if a court can't be trusted to ensure impartial justice, its technical "legitimacy" is meaningless.

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