Here is the link: New York Times blames January 6 on lies. But whose lies are at fault?

NPR’s legal affairs correspondent Nina Totenberg dedicated a recent segment to the question of “Can Trump Pardon Himself?”

The segment has two parts: firstly, it covers legal opinions of experts; the second half discusses the political and legal blow-back that would follow Trump’s hypothetical self-pardon.

I won’t comment on that second part; but the first part strikes me as monumentally hypocritical.

The main argument of the opponents of self-pardon was articulated by Michigan State University law professor Brian Kalt: allowing it “would violate the principle that no one can be the judge in their own case. Indeed, that was the formal legal opinion rendered by the Justice Department in 1974 during the Nixon presidency.” Apart from that, “Harvard Law professor Jack Goldsmith has examined all of Trump’s pardons and sentence commutations … at least 85 of the 94 have some personal or political connection to Trump and were self-serving in that way.”

I have a question for both professors. Did Harvard Law professor Jack Goldsmith ever hear of the case Pierson v. Ray which judges cite as justification for arbitrary decision-making, and in which they gave themselves the right to act from the bench “maliciously and corruptly” so no one can sue them for fraud? If Pierson v. Ray is not self-serving, what is? In Pierson v. Ray judges proactively pardoned themselves — so why can’t Trump do the same?

Did Michigan State University law professor Brian Kalt ever hear of judges’ “sua sponte” argument, the argument that was not presented by the parties (plaintiff and defendant), the argument that the judge himself injects right into the decision, denying the opposing party the chance to rebut it, and acting as a lawyer to the party the judge wants to win? How is the judge being a lawyer for a party to the case argued before him, and supplying the clinching argument for that party, is not being “the judge in one’s own case?” Of course he is. Of course “sua spontism” is a betrayal of judicial impartiality. Judges do that routinely — the decisive argument in the case of the Affordable Care Act (otherwise known as Obamacare), that the mandate was a tax, was not argued by either of the parties; it was brought in by Chief Justice Roberts so as to decide the case the way he wanted to, not the way he had to if the decision were to be based on parties’ argument alone. (Mind you, this was the same Roberts who swore, in his confirmation hearings, that judges neither pitch nor bat but only call balls and strikes! Judge Kavanaugh was as allegorical, thought perhaps less florid, when during his own confirmation he said that judge was an “umpire.” Really?)

If all three branches of the government are co-equal, and judges allow themselves to flaunt fundamental principles of “due process of the law” with no consequences to themselves, why can’t Trump do the same? Isn’t it the height of hypocrisy to demand that Trump abides by the same legal principles which judges violate right from the bench, day in and day out?

This is not to say that Trump should ignore the political consequences of self-pardon which Ms. Totenberg outlined in the second part of her segment. But anyone who would deny President Trump’s right to pardon himself based on the grounds articulated by law professors in the first part of her segment, is an out-and-out hypocrite.

Two Yale professors, Beverly Gage and Emily Bazelon — one teaching history, the other, law, penned an interesting piece in the New York Times, titled “How to Ensure This Never Happens Again” and dedicated to rectifying “weaknesses in our democracy.” It suggests a massive electoral reform. Unfortunately, their plan has a weakness of its own: the authors aim at an entirely wrong target, thus missing the point completely.

Democracy does not work because it does not exist: the public does not — and for that matter cannot — meaningfully participate in governance.

Here is why: suppose one of us hillbillies sees a wrong, and tries to fix it. We are not congressmen, we are not senators, we are not judges, we are not presidents. Nor are we millionaires whose campaign contributions purchase friendship of congressmen, senators, and presidents. Contacting “one’s” congressman and senators helps only so far, only if the matter is very minor. For bigger, systemic issues, all one can do, is either sue to have the court rectify the outrage — or ask journalists to report it, in the hope of enlisting public support, so the resulting outcry would cause congressmen at al fix it.

Unfortunately, in practice neither of those paths works. Journalists publish only what they want to publish — and don’t publish what they don’t want published, no matter how true (NY Times v. Sullivan allows journalists to lie, and Miami Herald v. Tornillo allows them to ignore facts they want ignored). Lawsuits don’t work because of judicial fraud — judges claiming to have a self-given (in Pierson v. Ray) right to act from the bench “maliciously and corruptly,” thus totally eviscerating “due process of the law:” you hire a lawyer who files a lawsuit, only to discover that the judge replaced parties’ argument in the decision with bogus argument of judge’s own concoction so as to decide the case the way he wants to, not the way he has to. Money is spent on lawyers and fees, the wheels of justice spin for a while, but the problem is not solved because your argument is not considered by the judge. Your contribution to governance winds up being nil. The outrage is still there, the insult of injustice added to the injury you tried to rectify.

So what can we do to bring about democracy, to allow a small guy participate in governance in more ways than just filling an election form? Plenty. Put an end to judicial fraud by blocking judges’ ability to adjudicate judges’, rather than parties’, argument. This, after all, is what any interpretation of Constitutionally-granted “due process of the law” demands. Judge’s own, “sua sponte” argument turn judges into parties to the case — something “due process” forbids. It demands that judges recuse themselves when they are parties to the case they adjudicate. Judicial impartiality is paramount, and “sua spontism” that is practiced from the benches day in and day out, makes mockery of it. Put an end to “sua spontism” — and by and large, the problem is solved, the democracy is restored, a hillbilly can add his two cents to governance by fixing illegalities that he notices.

“We the People” are on the receiving end of social wrongs, we are the ones who suffer from them — but are unable to rectify them.. The justice system that merely spins the wheels, producing the “appearance of justice” rather than justice, only exacerbates the problem by engendering cynicism towards “democracy” and “rule of law,” turning them into empty words devoid of substance, by turning people’s participation in governance into a fiction. If wrongs cannot be righted in courts, if “rule of law” does not exist, what’s there left of “democracy”?

Until “sua spontism” is abolished, until judges adjudicate parties’ argument, not judges’, there can be no rule of law, only arbitrary rule of judges, and unresolved grievances will only fester, producing cynicism, discontent, and angst.

To foster democracy, focus less on how we vote, and more to how judges decide cases. Under the present, “sua sponte,” “corrupt and malicious” system, the judging is utterly dishonest. That’s the root of social malaise, changing that is where we should focus our energies.

Use this link for “Whose Argument Gets Adjudicated By a Judge?” (it has a paywall)

I posted this petition on Change.org a long while back — and since then it gathered a whooping 5 votes (out of 100,000 needed I think for it to be considered).

The result is somewhat disappointing. Why not sign it? It’s a good cause! Give it a read: Congress, block judges’ self-given right to act from the bench “maliciously and corruptly”

The link: “Sua Spontism v. Due Process: Illegal Judging – or Lawless Law?“

Albuquerque Weekly Alibi published my article on judicial fraud in its August 13, 2020 issue . Unfortunately, the magazine went under in the aftermath of the pandemic, and the site became unstable. So in addition to the link to the on-line version, and to download link to PDF of the print issue, I’m pasting in below the text of the article.

In at least one reader — to judge by the Letters section in what turned out to be the final — September 3 — issue, the article touched a raw nerve (here is the link to his letter in its on-line version and download link to PDF). It singled me out as personification and epitome of bad writing (“P.S. While I cherish the right to free speech, it is not required to be printed or promoted by others. That being said, please do not print any more Lev Tsitrin mushy-peas writing. If his “article/essay” is any indication of the writing in his self-published book, he is not able to advocate cogently for his cause.”) I enjoyed both the editor’s tongue-in-cheek reply and, of course, the fact that someone was sufficiently roiled to address my piece. The letter is superbly written, and pseudonymous;  I wonder if the author is in the legal profession.

In any event, here is the text of the article:

Town Square

Judicial Fraud Impacts Americans

Is justice possible under “corrupt and malicious” judiciary?

A sign of the times

Photo by Life Matters from Pexels

Why do politicians fight to fill judicial openings with their buddies? This question may sound naive—but is it?

They obviously do it so courts put a stamp of approval on their policies. We accept as self-evident that a judge who is a Democrat will decide a case differently than a judge who is a Republican, that a conservative judge will rule differently than a progressive. We are so used to seeing this play out in Supreme Court decisions that we don’t even think that something here just isn’t right.

I gave no thought to it too—until it happened to me.

I sued in a First/Fifth Amendment case Overview Books v. US to give individuals speech rights of corporations (think Citizens United in reverse)—the Library of Congress denies authors who themselves publish their books the subject-matter keywords which make a new book visible to book trade and libraries; those are given only to third-party middlemen-publishers, making works of author-publishers invisible, and essentially handing the “marketplace of ideas” to middlemen.

As I sued, sensing in this arrangement both crony capitalism and censorship, a fascinating judicial decision-making procedure revealed itself: Instead of weighing plaintiff’s argument against that of defendant (or, simply put, my lawyer’s argument against the government’s), judges relied in their decisions on bogus argument of judges’ own concoction. In my case, Charles Lettow decided for government because government argued what it never argued; as did Eric Vitaliano—because my lawyer never argued what was our mainstay argument. Rivaling Orwell, judges take for adjudication parties’ argument, but adjudicate judges’.

How does that square with the constitutional guarantee of “due process of the law?” It doesn’t. “Due process” demands that judges be impartial; yet they feel free to act as parties to the case, as lawyers to the party they want to win, supplying the argument for it. No one can be impartial to his or her own argument, so impartiality is out. Normally, judges have to recuse themselves when they are parties to the case argued before them, but no recusal took place in my lawsuit, though instead of adjudicating Overview Books v. US, Lettow decided in Overview Books v. US and Lettow, while Vitaliano ruled in Not Overview Books v. US and Vitaliano. Nor is it possible to rebut judges’ argument—it appears for the first time right in the decision, and it is too late by then.

So I sued judges for fraud—and they argued that in Pierson v. Ray judges gave themselves the right to act from the bench “maliciously and corruptly;” besides, per Judge Garaufis, replacement of parties’ argument by judges is “classical application of the judicial process.” This being surreal, I sued to have images of Lady Justice removed from courthouses as deceptive, but judge Shofield dismissed it as “frivolous.“ Thinking that the fact that full third of US government—federal judiciary—is officially and proudly “corrupt and malicious,” “rule of judges” replacing the “rule of law” (which is why politicians pack courts with their partisans) is Pulitzer-class news, I turned to journalists—but in another Kafkaesque twist, every press outlet I contacted, every journalist I spoke to adamantly refused to cover it.

Why? Journalists refuse to say, but I have a theory. Courts shielded the press from attempts to force it into publishing what it does not want published, no matter how true, in Miami Herald v. Tornillo. The press is also allowed to publish falsehoods—per New York Times v. Sullivan, lie is protected speech. Judges allowed the press to manipulate facts all it wants, either by commission or by omission; and the press likely reciprocated by offering judges its own protection, telling them in a sense “swindle them all you want, we will not say a word.” This devils’ bargain allows both the press and the judges full freedom to cheat the public. If judges and journalists engage in mutual back scratching, no wonder that courts cheated me out of justice when I tried to fix absence of free speech, and the press ignored me when I tried to fix the courts. The press may even feel as partner in governance, doing its share of controlling us by shaping what the public thinks; if it were up to mainstream media, even the killing of George Floyd would have been hush-hushed—but social media took control, and established press had no choice but to follow.

There are stories that simply cannot be told—unless one is willing to take extreme measures to tell them. Press does go for stories of violence but, as I have no desire to hurt anyone, that option is out. I might go on a hunger strike to force us to face judicial fraud; there is only so much Orwellian doublespeak about “rule of law,” “free speech,” “representative government”—neither one of which turns out to exist—that one can take.

But first, let’s see if less drastic measures can help. Can we get through our heads that the reason real change can only be affected through mass street demonstrations, marches, looting, and toppling of monuments is because courts of law whose very purpose is, ostensibly, to make sure that rights legislated by our lawmakers are indeed implemented, do not fulfill that function, engaging instead in brazen judicial fraud; their real function being to create “appearance of justice” while actually denying us justice, and providing an aura of legality to actions that are patiently illegal? If not for that, any injustice—be it social, or racial, or environmental, or what have you—could be easily fixed through courts, and the reason courts fail that task, is because no “due process of the law” guides judicial decision-making and predetermines the outcome. If, instead of giving the judge a license to “cook the books,” judges are told to follow clearly-defined decision-making steps of “due process of the law”—that is, adjudicating parties’ argument and not that of the judges, even if the outcome will not suit judge’s politics, or be kicked off the bench or worse, then any kind of justice one cares about could be attained by any individual, simply by going to court.

Replacing parties’ argument with judges’ is what makes arbitrary judging possible; and it is arbitrary judging that results is split decisions of the Supreme Court, and innumerable injustices we suffer in lower courts. Without ordinary, regular justice for which the courts of law are presumably established in the first place being based on “due process of the law,” no justice of any kind can exist. To attain justice, we should substitute our instinctive desire to pack courts with judges who share our politics and in its name will disregard “due process of the law;” with a change in rules of decision-making process, denying judges the ability to insert their own argument into the case they hear—a practice that is as common and as illegal as it is wide-spread, dooming any hope for justice.

Current judicial decision-making procedure is, to quote Pierson v. Ray, “corrupt and malicious.” To have justice, “due process of the law” must control judicial decision-making process. Nothing else would do.

Lev Tsitrin is founder of Coalition Against Judicial Fraud, cajfr.org

A spat  between President Trump and Chief Justice Roberts, in which Mr. Trump called a judge who had ruled against his administration’s asylum policy “an Obama judge,” causing Justice Roberts’ protestations that “We do not have Obama judges or Trump judges, Bush judges or Clinton judges. What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them” sheds light on a very interesting, perplexing, and hugely important question: how is it possible for two different judges to look at the same case, and arrive at the opposite conclusion? After all, would it possible for two different referees to disagree on who delivered a knock-out in a boxing match? Or for two different accountants to disagree on whether the company is in the red or in the black?

In fact, Justice Roberts’ own court — the Supreme court of the United States — provides a perfect illustration that this seemingly absurd situation is routine: four to five decisions abound. How can this apparent absurdity be explained?

Well, as those who practice law know full well, the sports or accounting analogy does not really apply. Yet it is not our fault that most of us perceive judging in that totally misleading way. The government itself popularizes it, by decorating court buildings with murals and statues of Lady Justice. Her blindfold and two trays — one for plaintiff’s argument, the other for defendant’s — invites the thought of impartial weighing that goes on in the judges’ chambers, akin to referees’ counting of boxers’ hits, or adding up of numbers by accountants. And judges, too, strongly encourage the sporting analogy: “‘My job is to call balls and strikes and not to pitch or bat,” Justice Roberts declared during his confirmation hearings. “A good judge,” Justice Kavanaugh said “must be an umpire – a neutral and impartial arbiter who favors no litigant or policy.”

But once on the bench, judges abandon such principles of high-minded fairness. In fact, Justice Roberts’ clinching argument that the Affordable Care Act (otherwise known as Obamacare) was constitutional because it was a tax, was “pitched” by neither plaintiff nor defendant, but by Justice Roberts himself, who forgot at the moment that it was not his job to “to pitch or bat.”

The effects of judicial pitching are devastating, for two reasons. Firstly, it is natural for a judge to decide in favor of is own argument (which is why the foremost rule of “due process of the law” is that the judge cannot possibly be a party to the case he is adjudicating); and secondly, it is impossible to the opposing party to rebut judge’s argument: it comes in the decision itself, when it is too late to do anything about it. (Obamacare case also offers a textbook example of that: it was easy to show that the “tax” argument “pitched” by Justice Roberts was simply wrong — new taxation must originate in the House while such was not the case for Obamacare. If the “tax” argument would have been advanced by the government, it had no chance of making an impact — the plaintiff would have shown that it was invalid, and Justice Roberts would not have had the opportunity to use it.)

This was by no means an exception. Replacement of parties’ argument with that of judges’ own, so as to allow the judge to decide the case the way he or she wants to, is a ubiquitous procedure. When I sued a bunch of judges for doctoring the argument in my cases, I was told by Judge Garaufis that it constituted a “classical application of the judicial function” (grotesquely, the government argued, by citing Pearson v. Ray, that judges have the right to act from be bench “maliciously and corruptly.”) Though clearly a violation of due process of the law — in fact, a clear-cut obstruction of justice — substitution of parties’ argument by the judge does not even get considered as an instance of judicial misconduct or impropriety, and a judge does not get removed or reprimanded for conveniently not noticing an inconvenient argument, or for making up a bogus argument out of thin air (only the “appearance of impropriety” unrelated to judging — like womanizing, boozing, or drug use — can get a judge into trouble).

So this is how the deck is stacked: judges have the ability to decide any case any way they want to; it is all up to judge’s ideological leanings, and personal decency. The outcome cannot be forced by the strength of the argument, given judges’ ability to shirk it by ignoring incontinent argument, and to invent (or “pitch,” to quote Justice Roberts) the convenient one.

Judges’ ability to skirt “due process” with total impunity is what makes them so valuable to politicians, who badly need judges to both give the august aura of legality to whatever a given politician wants to do — or to block the action of the political opponent by denying its legality. Obama-appointed judges will stymie Trump; Trump-appointed judges would do the same to the democrats down the line.

It all is well known — or at least is vaguely sensed — but is somehow never talked about. Somehow, there is an unspoken rule in our public discourse: two branches of the government, the executive and the legislative, are fair targets for press’ prying, investigation, and criticisms. But as to judiciary — it is an article of civic faith that nothing bad should be said about them. Judges are our priests of civics; and of course nothing wrong should be said of the priests — something must be left holy. And so, judges are treated with awe — as honest, honorable, and upright,

The problem of course is, that they aren’t any of that at all. If Mr. Trump, who now and again breaks the taboo against publicly speaking ill of judges, keeps doing so and in the process helps cure this branch from its arbitrary nature by introducing due process into the judicial process, so cases are decided according to parties’ argument, and not judges’ inclinations or whim — so there is indeed no difference in process and outcome between an Obama judge and a Trump judge, Mr. Trump will be the most consequential president America ever had.

By far.

I thought it was just me. I thought that only I misunderstood the proper meaning of the word “must,” and erroneously thought that when applied to a judge, it forced him or her to perform, or refrain from performing, a particular action. I know better now, of course: when Judge Lettow of the Court of Federal Claims (where my lawyer filed on my behalf the First/Fifth amendment lawsuit, Overview Books v. US) adjudicated it based on government’s argument that the government lawyer never presented, but which Judge Lettow, in the goodness of his heart, himself invented out of thin air on government’s behalf, I thought Judge Lettow did something that a judge must not do – adjudicate a case to which he made himself a party (or, if you will, adjudicated a totally bogus case, and attached the result to a real one). Yet, when I sued Judge Lettow for the fraud he so obviously committed by underhandedly replacing government’s argument, I was informed that the dictionary definition of the word “must” does not apply to a federal judge. “You must” in that context becomes “please do whatever pleases you.” Rules are no rules; federal judges have the right to act “maliciously and corruptly;” in federal courts, words have no meaning.

That the Webster definition does not apply to a federal judge was yet again confirmed to me when, because the entirety of Judge Lettow’s argument was proven to be factually wrong (it blatantly contradicted findings of government’s own just-published study), we re-filed the case and Judge Vitaliano of the Eastern District court declared that, because the government filed to dismiss, he must consider our argument as true. Good start, bad finish: in the goodness of his heart Judge Vitaliano replaced my lawyer’s argument with its exact, polar opposite, and ruled against us by considering the opposite of my lawyer’s argument, rather than my lawyer’s actual argument, to be true. When I sued Judge Vitaliano, his colleague Judge Garaufis declared Judge Vitaliano’s slight-of-hand no less than “the classical application of the judicial function,” if I remember the language he used correctly.

But, again, this is just me – someone totally unlettered in the lore of judging, incapable of leaving the shackles of base common sense and ascending into the high empyreans of lofty judicial thinking. Of course, a legal professional cannot possibly fall into the same base error of thinking that the word “must” obligates a judge to doing what the rules say he “must” do?

Think again – by considering the case of one Brian King, Jr. (If you wish to consider it really closely, the case number is 17-cv-00309, Southern District Court of New York)

The gist of it is that Mr. King, a Harvard Law graduate, fell into the very same error as the unlettered yours truly: just like me, he thought that court rules were actually meant to be binding on the judge! Just like me, he thought that when rules said that a judge must do something, it obligated that judge to do it! Just like me, he thought that there was due process!

As follows from the complaint, he thought for instance that just because the court’s rules state that the accusing party must be present in the court for the hearings to happen, it followed that the hearings could not proceed in her absence. When that proved not to be the case, he complained – in accordance to rules. When suchlike obviously unprofessional behavior of insisting on following the rules caused the judge to suspend Mr. King’s law license, Mr. King thought – based on the rules for such proceedings – that he would be notified, and would be able to defend himself. Likewise, he thought that, if his firm’s documents were subpoenaed, he’d be notified so he could comply – again, simply because the rules said so. His reliance on the rules did not pan out; as you can see from the complaint, none were followed.

But the question here is – how can a Harvard Law school graduate be so naïve? How can he not know that rules are not rules, that words are not words when it comes to judges? That the due process is just a word, without any meaning?

I lay the blame for this bizarre state of affairs squarely on his school, which should have educated him better. I guess at Harvard Law they do teach judicial procedure – but clearly, they don’t teach it well. Who knows – perhaps Harvard professors also think that in courts, words and rules matter? That judging is not arbitrary?

Perhaps, they use textbooks that teach those silly notions?

I do not know; yet let me recommend to Harvard Law School professors some better, more reliable literature on judicial procedure to use in the class. And why just give the titles? Let’s provide the entire judicial procedure textbook (written originally in French as an extension of a Greek text, and given here in the English translation by Elizur Wright):

That innocence is not a shield,
A story teaches, not the longest.
The strongest reasons always yield
To reasons of the strongest.

A lamb her thirst was slaking,
Once, at a mountain rill.
A hungry wolf was taking
His hunt for sheep to kill,
When, spying on the streamlet’s brink
This sheep of tender age,
He howl’d in tones of rage,
‘How dare you roil my drink?
Your impudence I shall chastise!’
‘Let not your majesty,’ the lamb replies,
‘Decide in haste or passion!
For sure ’tis difficult to think
In what respect or fashion
My drinking here could roil your drink,
Since on the stream your majesty now faces
I’m lower down, full twenty paces.’
‘You roil it,’ said the wolf; ‘and, more, I know
You cursed and slander’d me a year ago.’
‘O no! how could I such a thing have done!
A lamb that has not seen a year,
A suckling of its mother dear?’
‘Your brother then.’  ‘But brother I have none.’
‘Well, well, what’s all the same,
‘Twas some one of your name.
Sheep, men, and dogs of every nation,
Are wont to stab my reputation,
As I have truly heard.’
Without another word,
He made his vengeance good–
Bore off the lambkin to the wood,
And there, without a jury,
Judged, slew, and ate her in his fury.

For your information, Harvard Law School professors, it is this that is going on in the courtrooms; teach your students accordingly. There was no need for Mr. King to learn through his nose, by losing his law license, that there is no such thing as due process, and that when applied to judges, words have no meaning. He should have been taught that right in the class.

And perhaps, a professor teaching this would have paused, and asked “but is it right?”

And perhaps, after questioning the current practice of waiving Webster definitions of words that are applied to judges, a way could have been devised to keep judging from being arbitrary – so that decent, honest people like Mr. King, a U.S. Marine Corps veteran and a Harvard Law School graduate, did not have to suffer from the injustices of our so-called “justice” system?