The Attorney General Merrick Garland's departing remarks and his gratitutde to those who served with and under him. [19.10]
Thursday, January 16, 2025
Tuesday, January 14, 2025
The Jack Smith final report on events of January 6, 2021
The report of Jack Smith, Special Counsel asserts with confidence the sufficiency of the evidence to convict Donald Trump for his unlawful attempt to hold power despite his election loss.
This on the same morning that the very Princeton Pete Hegseth fawns over Donald Trump and disparages the military he seems to lead.
Documents - Special Counsel Jack Smith
Letter from Attorney General Garland to the House and Senate Judiciary Committees, January 14, 2025
Final Report on the Special Counsel’s Investigations and Prosecutions, Volume One: The Election Case, January 2025
Letter from Attorney General Garland to the House and Senate Judiciary Committees, January 8, 2025
Superseding Indictment, United States v. Donald J. Trump, August 27, 2024
Indictment, United States v. Donald J. Trump, August 1, 2023
Superseding indictment, United States v. Trump, Nauta, and De Oliveira, July 27, 2023
Indictment, United States v. Donald J. Trump and Waltine Nauta, June 8, 2023
Sunday, January 12, 2025
Tulsa: Justice Department reports on 1921 Massacre of Black citizens
We are, alas, in the deepest moment of denial about our history in my lifetime. At 79 it is difficult to accept that a man who has built his success on racist appeals and innuendo was for the second time elected to be President of the United States of America.
In 1955 a young Black student - 13 year old Emmett Till was lynched in Mississippi. The murder was an important spur to the incipient civil rights movement. The United States Supreme Court was shedding its shameful racist legacy which included its Cruikshank v. U.S. release of the attackers in the 1973 Colfax massacre of 150 Black men defending the Parish courthouse. It had, in 1948 finally begun to vindicate the promise of the 1866 Civil Rights Act 42 U.S.C. 1982. The Court declared whites-only deeds unenforceable in Shelley v. Kraemer. Then in 1954 Brown v. Board of Education declared racial segregation of school children to be a violation of the principles of equal protection of the law.
Note: View Assistant Attorney General Kristen Clarke's remarks here.
The Justice Department issued a report [a Review and Evaluation undertaken pursuant to the Emmett Till Unsolved Civil Rights Crime Act] today on the Tulsa Race Massacre. The report documents the department’s findings, made during its review and evaluation of the Tulsa Race Massacre, undertaken pursuant to the Emmett Till Unsolved Civil Rights Crimes Act. The Civil Rights Division previously announced it was undertaking this review during a Cold Case Convening held on Sept. 30, 2024.
“The Tulsa Race Massacre stands out as a civil rights crime unique in its magnitude, barbarity, racist hostility and its utter annihilation of a thriving Black community,” said Assistant Attorney General Kristen Clarke of the Justice Department’s Civil Rights Division. “In 1921, white Tulsans murdered hundreds of residents of Greenwood, burned their homes and churches, looted their belongings, and locked the survivors in internment camps. Until this day, the Justice Department has not spoken publicly about this race massacre or officially accounted for the horrific events that transpired in Tulsa. This report breaks that silence by rigorous examination and a full accounting of one of the darkest episodes of our nation’s past. This report lays bare new information and shows that the massacre was the result not of uncontrolled mob violence, but of a coordinated, military-style attack on Greenwood. Now, more than 100 years later, there is no living perpetrator for the Justice Department to prosecute. But the historical reckoning for the massacre continues. This report reflects our commitment to the pursuit of justice and truth, even in the face of insurmountable obstacles. We issue this report with recognition of the courageous survivors who continue to share their testimonies, acknowledgement of those who tragically lost their lives and appreciation for other impacted individuals and advocates who collectively push for us to never forget this tragic chapter of America’s history.”
The report documenting the department’s findings on the Tulsa Race Massacre, examines events that occurred between on May 31 and June 1, 1921, when white Tulsans mounted a concerted effort to destroy a vibrant Black community, remembered today as Black Wall Street. During the massacre, hundreds of Black residents were murdered, their businesses and homes burned to the ground and their money and personal property stolen. Survivors were left without resources or recourse. In the aftermath, the City of Tulsa resisted offers of meaningful help to the victims and utterly failed to provide necessary aid or assistance, and efforts to seek justice through the courts foundered.
Despite the gravity of the department’s findings, it is clear that no avenue of prosecution now exists for crimes that occurred during the massacre — the youngest potential defendants would today be more than 115 years old, and the relevant statutes of limitations expired decades ago. Nevertheless, as the federal government’s first thorough reckoning with this devastating event, our review officially acknowledges, illuminates and preserves for history the horrible ordeals of the massacre’s victims. As antilynching advocate Ida B. Wells said, “The way to right wrongs is to turn the light of truth upon them.” This report aims to do just that.
The Nature of the Review...
A. Executive Summary4 On the night of May 31, 1921, a violent attack by as many as 10,000 white Tulsans5 destroyed the thriving Black community of Greenwood, Oklahoma—a prosperous area often referred to as “Black Wall Street.”6 The attack, which lasted into the afternoon of June 1, was so systematic and coordinated that it transcended mere mob violence. White men murdered hundreds of Black residents, burned businesses and homes to the ground, and left survivors without resources or recourse. In the aftermath, authorities failed to offer meaningful help, and efforts to seek justice through the courts foundered. Seeking to understand and acknowledge the scope and impact of the massacre, the United States Department of Justice’s Civil Rights Division, under the Emmett Till Unsolved Civil Rights Crime Act, 7 recently announced that its Cold Case Unit would review the events of 1921. From the beginning of that effort, it has been clear that no avenue of prosecution now exists for these crimes— the youngest potential defendants would today be more than 115 years old, and the relevant statutes of limitations have long since expired. Nevertheless, as the federal government’s first thorough reckoning with this devastating event, our resulting review officially acknowledges, illuminates, and preserves for history the horrible ordeals of the massacre’s victims. The review, conducted by the Cold Case Unit in the Civil Rights Division’s Criminal Section, involved speaking with survivors and their families, examining firsthand accounts, and studying primary materials8 —including an investigative report from June 1921 by the Justice Department’s Bureau of Investigation, the precursor to the FBI.
Thursday, January 2, 2025
Project MUSE - When Should the Majority Rule?
Project MUSE - When Should the Majority Rule?
When do limits on majorities enhance democratic rule, and when do they undermine it? Constraints on majorities are, of course, essential to modern democracy. Liberal democracy is not simply a system of majority rule: It combines majority rule and protection of minority rights. But constraints on electoral majorities can also subvert democracy. This essay offers a new framework for understanding the ambiguous relationship between countermajoritarianism and contemporary democracy. Lumping all countermajoritarian institutions into the same category can lead us to preserve and prescribe outdated and undemocratic institutions that distort political competition and may undermine democratic legitimacy. This essay makes the case for a robust but minimalist countermajoritarianism. Although special protections for powerful minorities may have helped to secure the historical passage to democracy, today the healthiest democracies empower majorities.
“IP and Strategic Competition with China: Part IV – Patents, Standards, and Lawfare” | Committee Repository | U.S. House of Representatives
“IP and Strategic Competition with China: Part IV – Patents, Standards, and Lawfare” | Committee Repository | U.S. House of RepresentativesHearing: “IP and Strategic Competition with China: Part IV – Patents, Standards, and Lawfare”
Hearing: “IP and Strategic Competition with China: Part IV – Patents, Standards, and Lawfare”Subcommittee on Courts, Intellectual Property, and the Internet (Committee on the Judiciary)
By Mark Cohen （柯恒） on 2025/01/02
On December 18, 2024, I was honored to testify before the House Judiciary Committee, Subcommittee on Courts, Intellectual Property and the Internet. These hearings were on “IP and Strategic Competition with China.” This hearing was concerned with “Patents, Standards, and Lawfare.” I was joined by the Hon. Walter Copan, former Commerce Under Secretary in charge of NIST, Kent Baker, Esq., from Ublox, and Prof. Tom Cotter from the University of Minnesota Law School. Our written and oral testimony can be found here.
Perhaps it was the spirit of the season, the consensus on the Hill regarding China, or the higher level of bipartisanship found on IP issues - but this hearing showed remarkable bipartisanship and collegiality.
In my testimony, I pointed out that SEPs present unique challenges to China. Although patents are private rights, standards are intended to advance public goals. China’s subsidization of patent filings and participation in standards-setting bodies further align SEP litigation with the interests of the State. I also discussed my research involving the diverse translations of “FRAND” into Chinese.
I expressed concern about the potential erosion of national and most favored national treatment if we continue to treat China or Chinese companies differently from other countries. The first recourse in expressing our concerns over SEP litigation with China should be to negotiate and, if necessary, exploit multilateral mechanisms such as WTO dispute resolution procedures. Prof. Cotter wisely added that any retaliation brought by the United States for perceived unfair practices would likely elicit counterretaliation by China.
Prof. Cotter also pointed out that the United States has long utilized many tools we are currently complaining about, such as anti-suit injunctions (ASIs). While this is generally true, I also believe that China’s implementation of these practices is often markedly different from that of the United States. In the past several years, I have written about several “false friends” involving transplanted IPR activities undertaken in China compared to the United States. These transplants include anti-suit injunctions, administrative enforcement of IP rights, and even disciplinary action by local bar authorities against unethical IP lawyers.
At the time of the hearing, China’s ardor for ASIs seemed to have chilled since the EU filed a WTO dispute regarding China’s ASI practices. This informal suspension of ASIs may be coming to an end in light of the Supreme People’s Court issuing its first anti-ASI on behalf of Huawei against Netgear at the Unified Patent Court’s Local Division and the Munich 1 Regional Court, which was announced on December 24, 2024.
Kent Baker also pointed out the difficulties of determining essentiality in SEPs and the costs of participating in standards committees as an SME. Walter Copan underscored the role of the United States as a major exporter of innovation. He also raised concerns about regulatory frameworks in China and the European Union, which could undermine United States efforts to commercialize SEPs. One of the sub-topics of the hearing was a proposal for a separate SEP tribunal in the United States to make it a more competitive forum for hearing SEP cases, which was raised in the hearing and in discussions after the formal hearing was over.
Subcommittee on Courts, Intellectual Property, and the Internet (Committee on the Judiciary)
By Mark Cohen （柯恒） on 2025/01/02
On December 18, 2024, I was honored to testify before the House Judiciary Committee, Subcommittee on Courts, Intellectual Property and the Internet. These hearings were on “IP and Strategic Competition with China.” This hearing was concerned with “Patents, Standards, and Lawfare.” I was joined by the Hon. Walter Copan, former Commerce Under Secretary in charge of NIST, Kent Baker, Esq., from Ublox, and Prof. Tom Cotter from the University of Minnesota Law School. Our written and oral testimony can be found here.
Perhaps it was the spirit of the season, the consensus on the Hill regarding China, or the higher level of bipartisanship found on IP issues - but this hearing showed remarkable bipartisanship and collegiality.
In my testimony, I pointed out that SEPs present unique challenges to China. Although patents are private rights, standards are intended to advance public goals. China’s subsidization of patent filings and participation in standards-setting bodies further align SEP litigation with the interests of the State. I also discussed my research involving the diverse translations of “FRAND” into Chinese.
I expressed concern about the potential erosion of national and most favored national treatment if we continue to treat China or Chinese companies differently from other countries. The first recourse in expressing our concerns over SEP litigation with China should be to negotiate and, if necessary, exploit multilateral mechanisms such as WTO dispute resolution procedures. Prof. Cotter wisely added that any retaliation brought by the United States for perceived unfair practices would likely elicit counterretaliation by China.
Prof. Cotter also pointed out that the United States has long utilized many tools we are currently complaining about, such as anti-suit injunctions (ASIs). While this is generally true, I also believe that China’s implementation of these practices is often markedly different from that of the United States. In the past several years, I have written about several “false friends” involving transplanted IPR activities undertaken in China compared to the United States. These transplants include anti-suit injunctions, administrative enforcement of IP rights, and even disciplinary action by local bar authorities against unethical IP lawyers.
At the time of the hearing, China’s ardor for ASIs seemed to have chilled since the EU filed a WTO dispute regarding China’s ASI practices. This informal suspension of ASIs may be coming to an end in light of the Supreme People’s Court issuing its first anti-ASI on behalf of Huawei against Netgear at the Unified Patent Court’s Local Division and the Munich 1 Regional Court, which was announced on December 24, 2024.
Kent Baker also pointed out the difficulties of determining essentiality in SEPs and the costs of participating in standards committees as an SME. Walter Copan underscored the role of the United States as a major exporter of innovation. He also raised concerns about regulatory frameworks in China and the European Union, which could undermine United States efforts to commercialize SEPs. One of the sub-topics of the hearing was a proposal for a separate SEP tribunal in the United States to make it a more competitive forum for hearing SEP cases, which was raised in the hearing and in discussions after the formal hearing was over.
I had previously been honored to testify at the first hearing in this series on March 8, 2023. At that time, I focused on how the United States could become more efficient and competitive with China’s IP system. Jamieson Greer, President Trump’s nominee to be the next U.S. Trade Representative, also testified then. The record of the first hearing is available here.
Friday, December 27, 2024
Thursday, December 26, 2024
NJ Law Journal Editorial Vigorous Senate Review for Patel - FBI Director Nominee
Vigorous Senate Review for the FBI Director Nominee
By the New Jersey Law Journal Editorial Board
December 20 2024
We hope that our senators will oppose any suggestion of an unvetted appointment during the Senate’s recess, and that Mr. Patel’s qualifications for this important post will be subjected to rigorous scrutiny by the Senate.
In 1968, Public Law 90351 provided that, at the conclusion of the service of longtime FBI director J. Edgar Hoover, the director would be nominated by the president for a 10-year term subject to confirmation by the Senate. The purpose of the law was to affirm the independence of the chief national law enforcement agency. The attorney general serves at the pleasure of the president. But the FBI director is outside the ordinary chain of command.
One result of that reform has been that directors have generally been reliably independent of the sitting president, whose terms of office the director is sure to exceed even if the new director is appointed at the beginning of a presidential term.
Kashyup Patel, a former public defender and federal prosecutor, now serves as senior director of the Counterterrorism Directorate. That would be reassuring if it were not for the fact that Patel in 2023 published the book "Government Gangsters," a partial memoir that criticizes the "deep state." In his book, Patel wrote a list of 60 people who, he believed, were members of the "Deep State," which included: Joe Biden, Kamala Harris, Hillary Clinton, Merrick Garland, Bill Barr, Robert Mueller, James Comey, Mark Esper, and Robert Hur, among others.
The political independence of the FBI is thus threatened by the appointment of a person such as Patel. But the current director, Christopher Wray—appointed by President Trump, who has publicly soured on him—has regrettably decided to resign. Patel was an aide to the House Intelligence Committee run by Rep. Devin Nunes, a fierce ally of then-President Trump. Patel also served briefly on the National Security Counsel and Defense Department staffs. Patel was the primary author of the partisan 2018 Nunes memo, alleging the FBI and Justice Department had erred in obtaining a warrant to surveil a former Trump campaign volunteer, a claim later shot down by the Department of Justice’s Inspector General.
A former Justice Department lawyer with 17 years of practice at Atlanta’s King & Spalding, the FBI, under Director Wray’s leadership since 2017, has competently pursued the Justice Department’s mission to keep our country safe, protect civil rights, and uphold the rule of law. That’s not to say the agency’s actions have always been perfect, but it is a daunting task leading the agency’s efforts to confront a broad range of threats from nation-state adversaries and foreign and domestic terrorism to violent crime, cybercrime, and financial crime. There are few leadership positions more central to keeping the American people safe than the director of the FBI.
Patel is another story altogether. Shortly after the first Trump administration, Patel launched Fight with Kash (now the Kash Foundation), an organization that funds defamation lawsuits and sells a wide variety of merchandise, including branded socks and water bottles, sweatshirts and baseball hats, a deck of playing cards with Trump as the ace and a bumbling Joe Biden in a jester costume as the king. He has spent recent years as a consultant and on the board of the president-elect’s media group, which owns Truth Social, and writing books that lionize the president-elect.
Though few would say today, with John Marshall, that they consider "Congress to be my government," we hope that our Sens. Andy Kim and Cory Booker will oppose any suggestion of an unvetted appointment during the Senate’s recess, and that Mr. Patel’s qualifications for this important post will be subjected to rigorous scrutiny by the Senate.
Sunday, December 22, 2024
Leaders approach the Horn - Vendée Globe 2024
Six weeks into the race the headline today is that records are about to fall at Cape Horn - but the solo sailors struggle with fatigue. If you don't know the Vendee Globe - the rules are simple. Depart France (Vendee Department) circle the globe, respecting the antarctic exclusion zone, return to Sable D'Olonne.
Single-handed. No outside assistance.
Ranking | Vendée Globe 2024TRACKER
Of the forty who started 36 are still racing.
Leader Yoanne Richomme has averaged 23.4 knots over the past 24 hours. He is approaching the Horn.
Distance to finish7556.57 NM
Charlie Dalin, 15 NM behind has averaged 24.11 knots over the past day.
At the back of the fleet Denis Van Weynbergh is averaging 11. kts over the past day.
- Distance to finish14332.60 NM
- Distance to leader6776.03 NM
The differences reflect, of course, skill, and luck. But mostly equipment as the fastest boats are foiling.
There are still five women racing. The top three can be judged by the numbers.
- Speed17.65 KTS
- 24h average speed16.89 KTS
- Distance to finish9209.54 NM
- Distance to leader1652.98 NM
- Speed12.06 KTS
- 24h average speed14.57 KTS
- Distance to finish10400.53 NM
- Distance to leader2843.96 NM
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