"Martha" on Netfilx: Revisiting Martha Stewart, the FBI, and James Comey's "Trophy"

 

This weekend I watched the Netflix documentary Martha. As an appellate lawyer and a civil libertarian it brought two crucial points to mind, the first being Martha Stewart's decision to end the appeal of her criminal conviction.  

Recall that after being wrongfully, in my humble opinion, convicted of “lying” to the FBI about her supposed insider trading, Ms Stewart initially filed an appeal.  This is hardly surprising given the fact that she was not convicted or even charged with insider trading.  In fact, she could not be charged because the evidence did not show that she traded on "insider" information.  Rather, Stewart was convicted of lying to the FBI when she truthfully said she had not engaged in insider trading.  If this seems nonsensical, remember that President Donald Trump was convicted of fraudulently failing to disclose payments to a mistress as a campaign contribution even though such payments do not fit the definition of a campaign contribution or expenditure, this last point illustrated by the failure of the Department of Justice to prosecute Mr. Trump on any campaign finance charges.

Though this appeal might have set useful precedent, Stewart courageously withdrew her appeal in order to put this incident behind her.  The FBI, of course, is not required by any law to tell the truth when it interviews someone, but is still very fond of claiming it has been "lied to" when it cannot bring any other charges.  Though Ms. Stewart's appeal did not proceed, this area is ripe for appellate review given the prosecutorial abuses of the Department of Justice and their cohorts at the FBI.

Which brings us to the second point, to wit, the role of our good friend James Comey in all this.  Ms. Stewart does not mince words when she notes how the sanctimonious Comey, then a Federal Prosecutor, decided to take down the first self-made female billionaire as what Stewart calls his "trophy."

This, of course, is the same James Comey who signed, under penalty of perjury, a FISA warrant application central to the entire Russia Hoax, a hoax which wasted millions and millions of dollars and countless hours in a vain attempt to prove a claim for which there was no evidence:  that Trump was a Russian Asset.  Indeed, following the report of Inspector General noting the errors and mischaracterizations in the FISA warrant application, Comey continued to defend his use of the "pee dossier" from Michael Steele as the basis for the FISA warrant application.

And so it is ironic that before James Comey did this to Donald Trump, he did it to Martha Stewart.  Comey was nonetheless later permitted to be named Director of our nation’s top Law enforcement agency, FBI, the era where the FBI was let by Comey seguing into the current era of political “lawfare" we have just lived through.

Martha, then, is a must-see because it shows us how Comey took down his first "trophy" before he later went after Trump. 

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New Case Law - 1) Probate Order Not Appealable and 2) Attorney Almost Sanctioned for Calling Opposing Counsel "The Civility Police" (Young v. Hartford)

 

Appealablility of probate order

The chief issue in Young v. Hartford (G064034, November 12, 2024) was the viability of the appeal itself.  The respondent made a motion to dismiss the appeal, arguing that the appeal was not from a final judgment but from an "interlocutory order," i.e., an order which is not deemed directly "appealable."  Most orders, of course, may not be appealed directly but are reviewed by the appellate court upon review of the final judgment. In the context of a Probate Court proceeding, there is no final judgment per se but statutes provide that certain orders have sufficient "finality" to be appealable.

Writing for the Fourth District, Division Three, Justice Delaney explained the subject orders were, in fact, not appealable, as they involved "suspension" rather than "removal" of a probate trustee.  Specifically, Probate Code section section 15642 did not make such an order of "suspension" directly appealable:

This case presents a novel or nearly novel recurring question of appealability: Are orders suspending trustees and appointing interim trustees in probate court directly appealable? We publish this opinion to provide a clear answer: they are not. (Id., p. 2.)

The trial court therefore granted the motion to dismiss the entire appeal.

Request for sanctions for filing a frivolous appeal

Along with this motion, respondent also filed a motion for sanctions, arguing the appeal itself was "frivolous."  While the appellate court did not find the appeal itself frivolous, given the novelty of the legal issue, in reviewing the record teh court found letters from counsel for appellant to be troubling:

However, we are troubled by the tenor of defendants’ attorney’s correspondence with plaintiff’s attorney, which plaintiff has provided in connection with her motion for sanctions. The third of the four letters is particularly problematic. Defendants’ counsel Michael Leight wrote, “I am not sure why you think you are the civility police, but I want you to stop wasting my time complaining that I have hurt your feelings. [¶] If you would like ‘to go on record,’ you should ‘go on record’ some place else because I am not interested in your opinions about whether I am respectful or disrespectful. [¶] I will communicate with you in exactly the manner that I believe is appropriate, whether the communication is in a courtroom or otherwise.” Plaintiff’s filing does not give us the full context of these comments, but we struggle to conceive of a possible justification for them. (Id., p. 12.)

The appellate court noted that attorneys are required to be "civil" at all times and this language hardly personified such.  The Fourth District nonetheless denied the request for sanctions but noted this denial was made "this time," a clear warning against future incivility:

Defendants’ counsel’s letter appears to reflect a disturbing lack of interest in these principles, particularly in his belittling comments about the “civility police” and “hurt . . . feelings.” In combination with the two cases discussed above, it paints an unfortunate picture of defendants’ counsel’s approach to the practice of law, and transformed what otherwise would have been a straightforward denial of a sanctions motion, fit only for a footnote, into a close call consuming pages of this opinion. In other words, this letter served only to imperil counsel’s interests and those of his clients, rather than advancing them. This time, we decline to impose sanctions. (Id., p. 14; emphasis added.)

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"Gaslighting" - A Post-Election Update About PBS' Claimed "Four Point Lead" for Harris

The Media's Emperors Have No Clothes

In prior articles, we discussed "gaslighting" in the litigation context. However, given what occurred on Tuesday night, further discussion is warranted.

As an appellate lawyer, I know that one’s own credibility is of utmost importance.  During oral argument, a Justice may ask a question that relates to the record upon appeal, and either exaggerating or selectively quoting from the record can forever harm one's credibility before that court.  This not only undermines the lawyer but, more importantly, the client's case.

So it is worthwhile to point out some of the "gaslighting" occurring during this election cycle, and the loss of credibility that should result.  Gaslighting is defined as not just a false statement but one designed to mislead, and, in particular, to have the listener doubt a conclusion formed by their own common sense and experience.

First, note the supposed "four-point lead" for Vice-President Harris trumpeted by tax-payer-funded PBS.  This was so although perhaps the best pollsters of all, TippInsights.com, showed no such clear lead for Harris:

https://www.pbs.org/newshour/politics/harris-has-4-point-lead-over-trump-in-final-pbs-news-npr-marist-election-poll

Another popular "gaslighting" trope involved Trump’s incredibly popular Madison Square Garden rally, namely that criticism of the rally caused a political shift toward Vice-President Harris.  Here Fortune was among the guilty parties:

https://fortune.com/2024/11/02/election-odds-donald-trump-lead-kamala-harris-madison-square-garden-rally-electoral-votes/

A sillytrope not exactly borne out by the actual votes in the election, of course.

Add to this MSNBC's incredible claim that President Trump declared victory "before" he actually had won; this gaslighting was not doubt due to the fact that traditional media was holding out hope Harris was going to come from behind, no matter the mathematics:

https://www.msnbc.com/opinion/msnbc-opinion/trump-declare-victory-early-harris-election-2024-rcna178400

Of course, the election had already been called by Fox News -- but had not yet been called by Comcast’s Trump-hating NBC.

Most humorous of all was Oprah Winfrey's claim that if Donald Trump won there would be "no more elections."  Was she lying to us or to herself or both?  Decide for yourself:

https://www.msn.com/en-us/news/politics/oprah-winfraey-issues-ominous-warning-about-a-second-trump-presidency-at-harris-s-final-rally/ar-AA1tx4zH 

The silliness of this prediction is borne out by the fact that there are reports the Democrat Party's National Committee is already talking about tweaking its strategy in subsequent elections.  Which would be a waste of time if there were indeed no further elections.

A final example of "gaslighting" is the faux media outrage, designed to stoke even more outrage among Puerto Rican voters, over a tacky joke made at the Madison Square Garden rally.  But what really happened? President Trump won handily and the Republican Party flipped the Governor’s Office in Puerto Rico.

  
In other words, Puerto Rico elected a Republican Governor.  So the attempt at gaslighting by way of calling a comedian's “joke” a campaign “statement” — and thus trying to equate a comedian’s joke with a candidate’s views — didn't work nationally or even in Puerto Rico itself.

Which gives us some hope.

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