Update - While the First Amendment May Protect Statements Urging Soldiers to Disobey Orders, this Protection May Not Apply to Such Statements Made by Persons in Uniform

 

 

Update to our prior post about the constitutional and statutory definition of "treason"

 

In our prior post we discussed shocking statements by elected members of a particular political party that members of the United States military should  disobey the orders of the President of the United States.  Our conclusion was that the definition of "treason" may be implicated by such statements, but the Constitutional and statutory definition of treason is constrained by the free speech protections of the First Amendment.

 

This article did not take into account the fact that two of the individuals making these statements are potentially subject military law, which does not permit those in uniform the same level of free speech protection as is afforded others.  Let us take the example of two senators. Senator Duckworth is one of the authors of these remarkable statements, is currently a member of the Army reserve and the National Guard.  Senator Kelley is retired military and continues to display his uniform. We thank them for their service made prior to their recent statements.

 

The simple fact is that statements urging our military to ignore the chain of command made by these persons potentially violates military law, notwithstanding the First Amendment.

 

 

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Potential Appellate Issue: The Validity of Judicial or Other Appointments Made by President Biden's "Autopen"

 

 

Does Biden's use of an "autopen" to make judicial appointments comport with Federal statute?

 

The President, with approval from the Senate, has the authority under Article III of the United States Constitution to appoint Judicial Officers "for life."  How this appointment is actually made official by a "seal" upon a "commission" is set forth in Title 5 United States Code section 2902, which reads in part:

 

(a) Except as provided by subsections (b) and (c) of this section, the Secretary of State shall make out and record, and affix the seal of the United States to, the commission of an officer appointed by the President. The seal of the United States may not be affixed to the commission before the commission has been signed by the President. (Emphasis added.)

 

Note that the subsequent subsections make no mention of an autopen or, for that matter, any digital signature.  For example, section 2902(b) provides the seal may be affixed "before" the commision is signed by the President, once again requiring the President sign the commission. The question therefore becomes whether use of an autopen meets the required act, i.e., that the commission related to the appointment be "signed by the President."

Of course, the initial question is whether Biden's inner circle used an autopen for judicial appointments as those around him did in so many other contexts.  However, if even one judicial appointment used an autopen, this becomes a potential appellate issue that may ultimately need to be decided by the United States Supreme Court. 

 

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The Actual Constitutional and Statutory Definition of "Treason"

 

Recently, some members of our favorite political party have made the shocking statement that members of the United States military should potentially disobey the orders of the President of the United States.  The media discussion of these comments have generally avoided actually giving the full definition of treason, not surprising given the media’s customary tactic of avoiding specificity in their reporting.  

So let us review the United States Constitution, which provides a basic definition of treason in the Article providing for our Judiciary:

Article III Section 3

Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.
The Congress shall have Power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted.

The United States Congress has further defined treason by statute:

United States Code section 2381. Treason

Whoever, owing allegiance to the United States, levies war against them or adheres to their enemies, giving them aid and comfort within the United States or elsewhere, is guilty of treason and shall suffer death, or shall be imprisoned not less than five years and fined under this title but not less than $10,000; and shall be incapable of holding any office under the United States.

This, of course, begs the question of what constitutes “giving. . . aid and comfort” to our “enemies.”  Jane Fonda’s actions in traveling to Hanoi to do the bidding of our military’s enemy, the communist dictatorship in North Vietnam, and attempting to harm the morale of our troops arguably met this definition.  However, she was never prosecuted, and this follows the recent trend of defining the terms “aid and comfort” and “enemies” very narrowly, which may be said to be fitting in a democracy that prizes dissent.  This means, then, that members of Congress are free to defile themselves by attempting to interfere with the chain of command in our military.

 

 

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The final settlement of the litigation against O.J. Simpson reveals the stage of litigation that is often the most time-consuming: collecting judgments

 

 

A friend asked me recently why appeals "take so long," and I explained that usually the process is not as lengthy as one might seem. In California, if a "notice of entry of judgment" is given, the other party has only 60 days in which to file a timely notice of appeal.  Once that is done the appeal may be resolved in roughly a year and a half or so, although certain factors may influence this time-line.  For example, a court reporter may be tardy in delivering a transcript, or there may so many parties and cross-appeals the court may set a briefing schedule to accommodate the many briefs filed the parties.  And another party may play games by requesting additional time to file their brief.

 

When people say that appeals are lengthy they often refer to a different phenomenon, namely,  serial or multi-stage appeals.  A state court appeal may raise a federal issue and therefore there may be a secondary appeal to a Federal court.  More likely, a party who successfully wins an appeal on the grounds there was reversible error at trial may face another appeal by the other party when the original appellant wins after a re-trial.

 

But in most instances the appellate stage is not all that more time-consuming than the trial court stage, and often these first two stages of litigation are dwarfed by the glacial pace of attempts to collect upon a judgment.  A party may evade service of a subpoena for a judgment-debtor examination, and even when served may still not appear, and courts may require several attempts before they issue a warrant for the arrest of the debtor who refuses to attend and testify.  Worse, even after that order the warrant may not have any effect until, for example, the debtor is stopped for a routine traffic infraction and faces jail time.

 

Which brings us to the saga of Goldman v. Simpson.  After a jury of 12 acquitted Mr. Simpson of a double murder despite overwhelming evidence (for the makeup of the jury, see https://famous-trials.com/simpson/1852-civiljury), Simpson was sued for wrongful death by Fred Goldman, the father of Ron Goldman. Mr. Goldman and his wife alleged their son was violently killed by Mr. Simpson, who also killed his ex-wife Nicole Brown Simpson.  In 1997, a jury awarded Mr. and Mrs. Goldman $33,000,000, but the collection process has taken decades as Mr. Simpson golfed year after year and said he did not have funds to pay the settlement.  

 

On November 14, 2025, the estate of Mr. Simpson finally accepted the claim of the Goldmans, as reported by the Los Angeles Times (https://www.latimes.com/california/story/2025-11-18/after-three-decades-o-j-simpsons-estate-agrees-to-pay-nearly-58-million-to-goldman-family).   

 

To the degree the assets of the estate exceed its debts, justice may finally be done nearly 30 years too late.

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Separation of Powers: The jurist who permitted the shocking abuses of “Arctic frost” is none other than anti-Trump Judge Boasberg, who now faces attempts at his impeachment

 

 

As you no doubt have heard, the Joe Biden / Kamala Harris administration, led by Attorney General Merrick Garland and special prosecutor Jack Smith, abused their power and ignored the separation of powers found in the United States Constitution by instituting the “Arctic frost“ probe.  The gist of this probe is that they posited a criminal, President Trump, and then decided to cast as wide a net as possible to find a crime to match their target.  Special prosecutor Smith’s apparent thinking was that there had to be a crime involved in claims of President Trump and other Republicans that there was fraud and other irregularities in the 2016 election (the only election ever conducted in a largely “remote” fashion), and he therefore issued subpoenas of truly shocking scope.

Included in these were subpoenas for records relating to Turning Point USA and other private organizations, and even worse, phone records of many Republican members of Congress including nine Senators, and, indeed, key senators such as Ted Cruz and Lindsey Graham.   Even worse, the subpoenas included an order that the subject not be told that the records were being sought, on the pretense that the targets of the subpoenas might destroy records.  Obviously, the Senators involved take great umbrage at the suggestion they should not be told about the subpoena because they would, as United States Senators, actively seek to destroy records.  This part of Judge Boasberg's order is seen below:

 

 

One might ask how any Jurist on the planet would approve such a subpoena

The answer, it turns out, is that the reason the subpoena was approved is that the jurist who did so is United States District Court Judge James Boasberg for the District of Columbia.  Recall that this jurist directed the location and route of United States government planes — as part of his supposed “equitable powers” which he believes extend to oversight as to how a co-equal branch of government operates. (See https://appellatespectator.blogspot.com/2025/03/the-judiciarys-takeover-of-executive.html.)  He also has been accused of making derogatory comments about President Trump at a judicial conference even though Mr. Trump is a litigant before his Court, making it apparent he cannot view any action involving this litigant in an objective fashion, but Judge Boasberg has not recused himself, something not permitted by the Rules of Ethics.  Indeed, historian Victor Davis Hanson has called Judge Boastberg “the most powerful man in America” even though he is a trial judge. (See https://www.foxnews.com/video/6370751312112 .)

And now we have these subpoenas intended as nothing short of a “take down” of persons with opposing political views by conducting a wide-ranging fishing expedition involving several entities and persons and seeking phone private phone records.  

And now we have these subpoenas intended as nothing short of a “take down” of persons with opposing political views by conducting a wide-ranging fishing expedition involving several entities and persons seeking iphone private phone records.  The offensive and extraordinarily broad attempt by the Executive Branch (prosecutor Smith) and the Judicial Branch (Judge Boasberg) to invade the privacy of both private citizens and the realm of the Legislative Branch is illustrated by the text of one such extra-Constitutional subpoena:  

 

 

 

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Case law Update -- Service of Statement of Damages Upon Pro Se Litigant Properly Made at PO Box Listed in Substitution of Attorney Form

 

 

In an opinion written by Justice Lui, the Court of Appeal of the Second District, Division Two, of California, has upheld a default judgment against a party in propria person. (Backlund v. Stone (October 27, 2025).) (https://courts.ca.gov/opinion/published/2025-10-27/b340369 .). The court summarized the extensive factual and procedural background  of the case very succinctly:

 

In 2010, Alyssa Backlund (Backlund) sued Christopher Stone (Stone) for defamation, intentional infliction of emotional distress (IIED), and related claims. Her complaint did not specify any amounts of damages. Stone hired counsel and defended the lawsuit for some time before his counsel filed a substitution of attorney form, showing that Stone was now self-represented, and listing a P.O. box as Stone’s address. Stone then failed to appear or to defend the action, leading to his answer being stricken. Backlund mailed a statement of damages to the address Stone provided on the substitution of attorney form and then got a default judgment against him for more than $1 million. Backlund renewed the judgment almost a decade later. Stone moved to vacate the renewal on the grounds that the default judgment was void for lack of due process, in that (1) Backlund’s action was not one for personal injury, and thus the damages had to be specified in the complaint; (2) even if a statement of damages was appropriate, Backlund did not use the form the Judicial Council adopted for that purpose; and (3) Backlund failed to properly serve Stone with the statement of damages. We reject Stone’s contentions and affirm. (Id., p. 2.)

 

The court thus expressly rejected the contention the judgment was invalid because the statement of damages was served by plaintiff upon the defendant at the PO Box given in the substitution of attorney form.  As the appellate opinion teaches, in filing this form the defendant "appeared" in the action (even assuming arguendo he had not appeared before this date).  It was therefore proper under Code of Civil Procedure section 1013 to serve the statement of damages by mail at this address:

For both a statement of damages and a statement to preserve punitive damages: (1) “If a party has not appeared in the action, the statement shall be served in the same manner as a summons,” or, (2) “If the party has appeared in the action, the statement shall be served upon [their] attorney, or upon the party if [they have] appeared without an attorney, either in the same manner as a summons . . . or in the manner provided by Chapter 5 (commencing with Section 1010) of Title 14.” [Citation.]

 

In this case, Stone had appeared in the action, first represented by counsel, and then self-represented. He thereby triggered the second branch, under which service may be made “upon the party if [they] have appeared without an attorney”. . . .

 

Backlund properly served her statement of damages by mailing it to the P.O. box Stone listed on his substitution of attorney form, which was the only address for Stone on file when Backlund served the statement. Stone argues that his former counsel’s office was his “address of record” when Backlund mailed the statement of damages because no notice of change of address had been filed, “regardless of whatever was written on the Substitution of Attorney form.” He thus argues that, assuming service by mail was permissible, Backlund was required to serve the statement on his former counsel, despite the notice he gave that counsel no longer represented him. This argument defies common sense. Stone’s substitution of counsel form served as a notice of change of address in this case, because it notified the court and the parties that Stone was no longer represented by his former counsel and provided Stone’s current address.

(Id., pp. 11-12; emphasis added.) 

 

Lessons for Practitioners

 

Perhaps the most important part of the decision is the discussion that gives the Court's blessing to reliance by opposing counsel upon a "new" address given by a substitution of attorney form.  As happened here, it is common for attorneys to withdraw from representation and provide little information about the client''s whereabouts, often, as is the case here, only providing a PO Box.  In these situations opposing counsel really has no choice but to rely upon the new address given on this form.  This is especially true where the substitution is signed by the party which is now self-represented, but this self-represented party is otherwise out of communication with opposing counsel.

 

 

 

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