[AE.Politics] Bad legal arguments, or stumping for sedition?
So last week I read a thread by attorney Mike Dunford (@questauthority) on Twitter, about legal sanctions in one of the Krakenesque lawsuits regarding last year's election.
Mike's tweet-throughs of the lawsuits going back to before the inauguration have been a great resource for me in understanding what's happening. I stopped following them as closely once President Biden was inaugurated, but I still read them when they catch my eye, as this one did.
There's one tweet in particular that doesn't really jump out in isolation, from the middle of that thread, that I'd like to highlight here, for the portion of the document they present.
https://twitter.com/questauthority/status/1422967120619520001
Some quick from-a-layperson background: in this text, the judge is dispensing with the arguments the plaintiffs in the lawsuit provided for why they shouldn't be sanctioned.
In this particular section, one of the arguments for sanctioning the Kraken clownshow lawyers is that the lawsuit they brought borrowed heavily (sometimes word for word) from numerous other lawsuits that had already been dismissed, often quite forcefully, which means at a minimum they should have known their lawsuit was unlikely to succeed.
The plaintiffs' contention is that those lawsuits were all different from theirs as they were brought against government entities and officials, whereas this lawsuit is against private corporations involvedin the election.
Which brings me to the reason I chose to highlight this tweet in this thread: the judge rebuts this argument not just by pointing out that they had also attempted to bring the lawsuit against state officials, but they had also previously argued that the reason they could sue Facebook and Dominion for allegedly violating Constitutional rights is that, according to their conspiracy theories, they were working so closely with the state governments that they could be legally treated as though they were state actors.
In short: when asked how a private company could violate Constitutional protections, they argued the companies should count as part of the government; when asked how this lawsuit was different from all the other failed ones before it, they said it was because they were suing companies and not the government.
This kind of shapeshifter logic where things are whatever they need to be in order to satisfy the last point raised with no sense of coherence or consistency from one point to another doesn't fly in court, but it's a stable of cult beliefs and conspiracy theories, and it's also frequently found in online arguments, particularly among trolls whose goal is to tie people up in endless hair-splitting debates.
Whether the lawyers in this case believed it would work on the judge or were simply spitting out whatever arguments they could come up with just to have arguments is an open question and not one I can answer.
The two obvious possibilities that occur to me are that either they're so immersed in the cultures where this transient point-scoring style of argumentation is just how you do things that they completely forgot that's not how it works in a courtroom, or that they know they're not going to prevail in court but that they are doing the equivalent of a politician pandering to the base; they know that whatever arguments they put forth in court will be assumed to be valid by the people who share their premises and conclusions, and they care more about keeping those people fired up and engaged than they care about mitigating the harm they've done to their own cause with the judge.
Under ordinary circumstances I would find either of those possibilities fairly outlandish; these are lawyers and their ability to make a living depends on knowing how to construct and present a legal argument rather than an internet troll debate.
But unlikely or not, something happened that made this tactic make sense to them. And there's a pretty clear pattern of behavior of lawyers filing lawsuits related to the last election that were very clearly more about "firing up the base" than getting a particular favorable legal result.
I don't know what it means if we have a rash of conservative lawyers who have adopted the courts as a new ring of their political circus, but one if their arguments aren't intended to produce a particular result from the courts, then it stands to reason that their true goal lies somewhere outside the legal sphere.
One possible conclusion I just can't shake is that they're actively fishing for fodder to inspire another January 6th. Getting slapped with sanctions and having arguments which in a vacuum sound reasonable enough on their face for the base to buy them (a very low bar) is just more grievances for the grievance mill.
And sure, they might be torpedoing their careers practicing any kind of legitimate lawin the process, but if Trump taught the Republican Party anything, it's to raise the stakes and double down. If they win -- not in a court of law but in the court of political violence -- and Trump is returned to power, they probably expect all sanctions to be overturned and for them to be rewarded as heroes in the restored regime.
I don't want for that to happen, but if it does, I would not want to be someone who could claim credit for putting Hair Furor back on the throne. If they want an idea of how Donald rewards such acts of service, they need look no further to his treatment of James Comey. He didn't get where he is in life at any lofty point in his existence by rewarding the people who got him there. He regards that as a threat -- anyone with the power to lift him up may also have the power to bring him down or lift up another -- and as an insult in suggesting that he needed them in the first place.
I don't expect a disastrously bad sanctions argument to be the spark that fuels January 6 Part II, or even be a particularly meaningful amount of fodder for fires being stoked in that direction. It's more the aggregate I'm concerned about it.
What I'm going to be watching for is if the trend of Trump or GOP-linked lawyers treating the courts like the comment section on a blog they wish to troll with ever-shifting, contradictory, or circular arguments continues past the last aftershocks of the Kraken and Kraken-adjacent lawsuits, or if it dies out as those cases do.
There were a lot of right-wing tweets between last November and this past January that alluded to concept called the boxes of liberty, in a formulation attributed to deceased politician Larry McDonald:
There are four boxes to be used in the defense of liberty: soap, ballot, jury, and ammo. Please use in that order.
For conservatives, of course, "liberty" means "power over others", so the idea they expressed by referencing these boxes was that if we wouldn't give them everything they wanted when they used one box, they'd move onto the next one.
At the point where they're no longer using the courts to seek legal remedies, we should be concerned that they're already comitting themselves towards the final box in the list.
I'm not just reading tea leaves from wacky legal strategies here. As a few people on twitter have noted, it seems like more and more outspoken conservatives are laying the rhetorical groundwork for talking each other around to mass murder as a political solution.
https://twitter.com/MattGertz/status/1422904975416602626
https://twitter.com/SykesCharlie/status/1424392052159225857
Kurt Schlicther's position is identified in the tweet, and Ben Domenech is the funder and publisher of The Federalist as well as the husband and third great love of Meghan McCain's life, after her father and the sound of her own voice. These are obviously extremists but are very far from the fringe of conservative thinking.
We are not nearly out of the woods here. Giuliani might just get his trial by combat yet.