Third post in our series "Gaslighting and Litigation:" how to respond to opposing counsel "gaslighting" during oral argument

In parts one and two of our series on Gaslighting and Litigation, we discussed the definition and prevalence of "gaslighting" and posited "gaslighting" tactics from opposing counsel:

An example might be an appellate argument about a case dismissed following a challenge to the pleadings, with the primary issue being whether the main cause of action pleads facts showing there is an exception to the statute of limitations which bars the late-filing of the complaint.  Opposing counsel might switch from this to another issue involving the complaint, such as whether a specific element of a cause of action, such as intentional conduct, has been plead.  Veering off to another issue is permissible, of course, but your opposing counsel may recite language in the complaint (with page and line citations) that one does not recall because the complaint doesn't contain this exact language.  

Therefore, one may begin to question one's own recollection as to what the complaint states because of what the "gaslighting" attorney has said.  The initial reaction may be to call out counsel for their miscitation to the language of the complaint, but they may be so skilled at weaving what the complaint says with what it does not that it becomes tricky to claim the citation is outright "inaccurate" and, unless one has that portion of the complaint memorized, one may question which words are accurate and which are not.

Note that this is especially likely to occur either when 1) one is making some sort of argument to the lower Court and the case is being handled by another lawyer in your firm and opposing counsel is attempting to take advantage of the fact they have a better knowledge of the record, or 2) one is arguing before the appellate concerning a trial conducted by another counsel.

When gaslighting is aimed at counsel in our hypothetical oral argument, there are several options available.  However, none of these are ideal from the point of view of the counsel being "gaslit:"

• Ignore the attempt to misquote the record on the secondary issue and then continue one's argument as to the main issue;
• Point out to the Court that the citations to the record by your opponent are not "complete" and that the Court should independently review the record on this secondary point, and then one may return to the main issue;
• Stop your argument on the main issue, and assuming you have brought the record with you (and have tabbed it extensively), discuss in detail the facts and/or language cited-to by opposing counsel; or,
• Ask the Court to further brief the issue, such as by way of an informal "letter brief" so one may discuss the facts and/or language opposing counsel refers-to, noting such was not fully briefed and/or your opponent has selectively cited from the record. 

At first blush, it appears the best approach may be the last noted above, as it permits you to not let the issue of the record being quoted incorrectly "slide."  The downside to this approach, of course, is that your opponent, who might not have briefed this secondary issue particularly well (at least in terms of the facts and/or language they are now citing) will have a chance to respond, assuming the court permits additional briefing. 

Therefore, perhaps the second approach is the best, making certain that the misquoting by opposing counsel is noted in a non-confrontational and respectful manner.  One might therefore say (before reminding the Court that "in any event, the main issue is. . .") that the facts and/or language cited by opposing counsel are not entirely true by virtue of stating counsel has:

• Not given the Court the "entire picture" of the facts and/or language as to x, y, or z;
• Cited to facts and/or language "not discussed in any depth" in their brief; and/or,
• Cited to the record as to x y, or z but has not given "any specific page and line cites."

This assumes, as may often be the case, that the Court will find the secondary issue peripheral and not dispositive.  Therefore, the Court may not even ask any questions regarding the secondary issue, and, instead, focus upon the main issue and ignore the attempt by opposing counsel to sow doubt in one's mind about facts which are borderline irrelevant. 

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Breaking News - Possible Appeal to the Ninth Circuit - Federal Court Enjoins UCLA From Permitting Pro-HAMAS Protestors to Block Access to Jewish Students

 

On August 13, 2024, Judge Mark C. Scarsi of the Central District of California issued an injunction barring the University of California at Los Angeles from permitting protesters who support Hamas and/or are protesting the State of Israel from blocking access to the school by Jewish students.  The "protestors" did so, of course, unless anyone who desired or needed to enter this space wore a wristband designed to separate out anyone who had a religious or other belief supporting the State of Israel.  UCLA must assuredly know permitting such on its campus violates the United States (as well as California's own) Constitution, as UCLA has its own Law School, including an adjacent courtyard ironically named "Shapiro." Indeed, according to the First Amendment, a person may not be denied access to a public space due to their race or religion.  Therefore, the injunction (https://becketnewsite.s3.amazonaws.com/20240813183534/injunction.pdf) seeks to enforce First Amendment rights by providing, at pages 15 to 16, that:

16. 1. Defendants Drake, Block, Hunt, Beck, Gordon, and Braziel (“Defendants”) are prohibited from offering any ordinarily available programs, activities, or campus areas to students if Defendants know the ordinarily available programs, activities, or campus areas are not fully and equally accessible to Jewish students.

17. 2. Defendants are prohibited from knowingly allowing or facilitating the exclusion of Jewish students from ordinarily available portions of UCLA’s programs, activities, and campus areas, whether as a result of a de-escalation strategy or otherwise.

    3. On or before August 15, 2024, Defendants shall instruct Student Affairs Mitigator/Monitor (“SAM”) and any and all campus security teams (including without limitation UCPD and UCLA Security) that they are not to aid or participate in any obstruction of access for Jewish students to ordinarily available programs, activities, and campus areas.

Note that UCLA not only opposed the request for an injunction but also requested a stay pending appeal, meaning they would be permitted to, inter alia, continue to take actions that include, as the injunction states, "knowingly allowing or facilitating the exclusion of Jewish students from ordinarily available portions of UCLA’s . . . areas, whether as a result of a de-escalation strategy or otherwise."

Such exclusion has, according to sworn declarations, already occurred.  As the injunction states at pages four to five:

4. On April 25, 2024, a group of pro-Palestinian protesters occupied a portion of the UCLA campus known as Royce Quad and established an encampment.  News reporting indicates that the encampment’s entrances were guarded by protesters, and people who supported the existence of the state of Israel were kept out of the encampment. Protesters associated with the encampment “directly interfered with instruction by blocking students’ pathways to classrooms.” Plaintiffs are three Jewish students who assert they have a religious obligation to support the Jewish state of Israel.  Prior to the protests, Plaintiff Frankel often made use of Royce Quad. After protesters erected the encampment, Plaintiff Frankel stopped using the Royce Quad because he believed that he could not traverse the encampment without disavowing Israel. He also saw protesters attempt to erect an encampment at the UCLA School of Law’s Shapiro courtyard on June 10, 2024. Similarly, Plaintiff Ghayoum was unable to access Powell Library because he understood that traversing the encampment, which blocked entrance to the library, carried a risk of violence.He also canceled plans to meet a friend at Ackerman Union after four protesters stopped him while he walked toward Janss Steps and repeatedly asked him if he had a wristband. Plaintiff Ghayoum also could not study at Powell Library because protesters from the encampment blocked his access to the library. And Plaintiff Shemuelian also decided not to traverse Royce Quad because of her knowledgethat she would have to disavow her religious beliefs to do so. The encampment led UCLA to effectively make certain of its programs activities, and campus areas available to other students when UCLA knew that some Jewish students, including Plaintiffs, were excluded based on their genuinely held religious beliefs. (Citations and footnotes omitted; emphasis added)

   
   

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Justice Thomas' Concurring Opinion in Trump v. United States - Part Two - Application to Hunter Biden's cases

 

I was recently asked if the reasoning in Justice Thomas’ concurring opinion in Trump v. United States — that Merrick Garland’s appointment of a special counsel as part of the “lawfare” against President Trump violated basic Constitutional principles — would apply to Mr. Garland’s other special counsel appointments, including the appointment of the Special Counsel regarding Huner Biden.  As outlined in my prior post on Trump v. United States, Justice Thomas aptly noted that the Constitution only permits the Congress of the United States, to create an Office of the United States.  Therefore a member of the Executive Branch, such as the Attorney General or other Cabinet officer, cannot create such an office.

Indeed, counsel for Hunter Biden has filed a brief making this argument, as noted by MSN.  This, of course, follows the dismissal of the suit against the former President for "misusing" classified documents at Mar-a-Lago, which dismissal by the District Court was based upon the analysis in Justice Thomas' concurrence.  This dismissal, of course, in turn follows the decision to not prosecute President Biden for storage of documents in his garage even though his Special Counsel found he had "willfully retained and disclosed classified materials."

I have also been asked if this reasoning would apply to past or future charges via this same sort of Special Counsel and I believe this argument, if accepted by the appellate courts, would bar the actions of the Special Counsel no matter the charges against Mr. Biden.  This would mean the appointment of the Special Counsel would be unconstitutional whether Mr. Biden is charged or convicted of lying on a firearm's application (which, even though no one should ever lie on a form signed under penalty of perjury, is a relatively minor offense) or the claim that Hunter Biden traded influence with his father, President Biden, in exchange for monies from foreign entities (the latter being a far more serious offense as it undermines the credibility of the United States).

Lastly, I have been asked why I cited to Democrat-party affiliated media such as CNN and MSNBC in my posts even though they issued multiple retractions regarding the false claim that Mr. Trump was some sort of Russian spy.  The simple fact is if I were to cite to, for example, the Wall Street Journal, which has not had to issue the same sorts of high-profile retractions, I would be accused of citing to "conservative media." So I cite to left-wing media to show there may be no denial of the facts cited.

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Second post in our series "Gaslighting and Litigation:" gaslighting to re-write history as to Vice-President Kamala Harris

Among the many present attempts to "gaslight" the American people include convincing people that what they recall about Vice-President Harris is untrue. This goes far beyond pieces of "puff journalism" designed for the specific benefit of assisting her campaign, as these are to be expected from the corporate media. 

However, we are now being told that 1) she was never what was then-termed the "Border Czar," and thus charged with reducing illegal migration, and 2) that she was not a "diversity" hire, and worse, that something is wrong with you if you recall dare to call her such.  These tactics are classic gaslighting designed to confuse us and have us question what we already know.  

Mr. Biden, of course, loudly proclaimed on or about March 24, 2021, that he had anointed Ms. Harris to lead efforts to stem migration across the southern border, as reported by NBC (https://www.nbcnews.com/politics/white-house/biden-taps-harris-lead-coordination-efforts-southern-border-n1261952) and other "news" outlets owned by large corporations.  Previously, Mr. Biden had stated on or about March 15, 2020, that he was choosing a Vice-Presidential nominee who would be a woman and a woman only, as reported by CNN (https://www.cnn.com/2020/03/15/politics/joe-biden-woman-vice-president/index.html), and he has since bragged about this pick and why she was chosen.  As the links above indicate, these facts were reported by two of the most Democrat-party-friendly news media corporations, to wit, NBC and CNN.

Of course, these facts are now being denied by "fact checkers" in order to confuse us and blunt any criticism of Ms. Harris' record while in office.  There have, then, been an onslaught of articles designed not only to squelch debate as to Ms. Harris but to do something far worse:  to convince us we are factually inaccurate (and, of course, sexist and racist) for recounting Mr. Biden's own words as to the role he gave Ms. Harris regarding the border and how he chose her. 

 

Such gaslighting is reminiscent of litigation tactics, which include a common oral argument tactic of counsel in proudly and loudly reciting facts during oral argument in an inaccurate fashion, often replete with citations to the record.  This is often done on a peripheral matter that one may be aware of but has not prepared to discuss to a great degree at oral argument.  

An example might be an appellate argument about a case dismissed following a challenge to the pleadings, with the primary issue being whether the main cause of action pleads facts showing there is an exception to the statute of limitations which bars the late-filing of the complaint.  Opposing counsel might switch from this to another issue involving the complaint, such as whether a specific element of a cause of action, such as intentional conduct, has been plead.  Veering off to another issue is permissible, of course, but your opposing counsel may recite language in the complaint (with page and line citations) that one does not recall because the complaint doesn't contain this exact language.  

Therefore, one may begin to question one's own recollection as to what the complaint states because of what the "gaslighting" attorney has said.  The initial reaction may be to call out counsel for their miscitation to the language of the complaint, but they may be so skilled at weaving what the complaint says with what it does not that it becomes tricky to claim the citation is outright "inaccurate" and, unless one has that portion of the complaint memorized, one may question which words are accurate and which are not.

Counsel encountering such tactics are left with several options as to how to respond, including ignoring the inaccurate recitation, at the risk of having the Court assume such is accurate, or slowing down one's own oral argument to provide an accurate quotation from the complaint, all of which we will discuss in our next post.

  

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First post in our series "Gaslighting and Litigation:" the "cheap fake" gaslighting

We begin a new series on “gaslighting” and how it relates to litigation and argumentation.  Some use the term as a synonym for lying, prevarication, or exaggeration.  While the term does involve deception, it is not the same as simply not telling the truth. These statements from former Presidents of both major political parties — “You can keep your health plan” (Obama), “I did not have sex with that woman” (Clinton), and “Read my lips, no new taxes” (George Bush) — were certainly falsehoods and may have been designed to mislead the American people, because as soon as they were uttered people were pointing out evidence to the contrary.  But they were not gaslighting per se because the deception was not an attempt to mislead by having the victim question their own perception and recollection of reality.

Wikipedia.com defines the term in terms of this manipulation:

Gaslighting is a colloquialism, defined as manipulating someone into questioning their own perception of reality. The expression, which derives from the title of the 1944 film Gaslight, became popular in the mid-2010s. Merriam-Webster cites deception of one's memory, perception of reality, or mental stability.

In director George Cukor’s 1944 American film Gaslight, Ingrid Bergman plays Paula, a woman whose husband convinces her she is ill to make her question her recollection as to her husband’s thievery  As Wikipedia.com summarizes:

Isolating his wife from the world, Gregory convinces her that she is a kleptomaniac, responsible for hiding a painting, and is too unwell to be in public. Unable to prevent her from attending a party hosted by her old family friend, Gregory accuses Paula of stealing his watch. When he "finds" it in her handbag, Paula becomes hysterical in front of the guests. Taking Paula home, Gregory angrily claims that her mother died in an asylum. . . .  Doubting her own sanity, Paula breaks down.

Most recently, such "gaslighting” has become increasingly prevalent among corporate media and our political elite, a key instance being the blatant cover-up regarding the mental condition of President Biden.  When unedited video was seen by millions showing the President staring off into space while on stage at a June 2024 Los Angeles fundraiser for Biden's reelection, our President appeared to be unaware of where he was, necessitating kindly assistance from former President Obama in helping him off the stage, we were lied to and told these were “cheap fakes,” i.e., edited versions designed to fool the audience.  Indeed, the Associated Press and other news organizations engaged in gaslighting by telling us nothing was wrong and what we saw was not what we saw.

Of course, millions such as myself saw this unedited video when first presented by news media owned by major corporations such as Disney, Comcast, etc., entities extraordinarily friendly to Mr. Biden who certainly did not "fake" this video.  But there were certainly others who saw this clip later and might have been misled by the false “cheap fakes” claim and questioned whether they in fact really saw Mr. Biden so disoriented that his former boss became concerned and had to step in.

In future posts, we will tackle other examples of gaslighting, including one involving candidate Presidential candidate Kamala Harris.  More to the point, we will talk about how gaslighting has become an unfortunate litigation tactic — and how certain counsel may attempt to “gaslight” opposing counsel and the Court.

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Trump v United States - Per Justice Thomas Only Congress, Not the Biden Administration, May Appoint a Federal "Office" such as that of "Special Counsel" Jack Smith

This week, I originally intended to write about appellate advocacy in light of the Presidential debate.  However, given what occurred, I have postponed these comments because I think the “gas-lighting” regarding the pre-debate condition of our President is a more pressing issue.  Arguably, however, the opinion in Trump v. United States (July 1, 2024) No. 23-939, is an even more important issue, so I will first address at least one aspect of this ruling first, including and especially the concurring opinion by the oldest and longest-serving member of the present court, Justice Clarence Thomas. 

As a life-long civil libertarion I was stunned, quite frankly, when Attorney General Garland created the “office” of the “special counsel” in order to appoint Jack Smith to engage in what many call “lawfare” against President Trump.  This is because only Congress may create a Federal office.  I was not the only one to take notice, for Justice Thomas’  concurrence to the majority opinion sets forth the manner in which “private citizen” Jack Smith was appointed.  

In this case, the Attorney General purported to appoint a private citizen as Special Counsel to prosecute a former President on behalf of the United States. But, I am not sure that any office for the Special Counsel has been “established by Law,” as the Constitution requires. Art. II, §2, cl. 2. By requiring that Congress create federal offices “by Law,” the Constitution imposes an important check against the President—he cannot create offices at his pleasure. If there is no law establishing the office that the Special Counsel occupies, then he cannot proceed with this prosecution. A private citizen cannot criminally prosecute anyone, let alone a former President. 

No former President has faced criminal prosecution for his acts while in office in the more than 200 years since the founding of our country. And, that is so despite numerous past Presidents taking actions that many would argue constitute crimes. If this unprecedented prosecution is to pro ceed, it must be conducted by someone duly authorized to do so by the American people. The lower courts should thus answer these essential questions concerning the Special Counsel’s appointment before proceeding. (Trump v. United States, pp. 1-2)

Therefore, as Justice Thomas explains at page two, such a prosecution may only be done by someone duly authorized to do so by "the American people.”  He therefore quotes from Article II, Section II, Clause II, of the United States Constitution:

[The President] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Department. (Emphasis added.)

Justice Thomas cites to the Federalist Papers, which discuss, with great logic and eloquence, the requirement a President may only appoint someone to an office created by Congress, and not by Executive Branch fiat, grew out of the virtually unlimited power of the British Monarch to create titles and offices.  The drafters of the Constitution therefore sought to give the President inferior powers, as evidenced by one of the specific grievances listed in paragraph 12 of the Declaration of Independence:

Before the President or a Department Head can appoint any officer, however, the Constitution requires that the underlying office be “established by Law.”1 The Constitution itself creates some offices, most obviously that of the President and Vice President. See §1. Although the Constitution contemplates that there will be “other Officers of the United States, whose Appointments are not herein otherwise pro-vided for,” it clearly requires that those offices “shall be established by Law.” §2, cl. 2. And, “established by law” reers to an office that Congress creates “by statute.” Lucia v. SEC, 585 U. S. 237, 254 (2018) (THOMAS, J., concurring); see also United States v. Maurice, 26 F. Cas. 1211, 1213 (No. 15,747) (CC Va. 1823) (Marshall, C. J.). 

The limitation on the President’s power to create offices grew out of the Founders’ experience with the English monarchy. The King could wield significant power by both creating and filling offices as he saw fit. He was “emphatically and truly styled the fountain of honor. He not only ap- point[ed] to all offices, but [could] create offices.” The Federalist No. 69, p. 421 (C. Rossiter ed. 1961); see also 1 W. Blackstone, Commentaries on the Laws of England 271 (T. Cooley ed. 1871) (“[A]s the king may create new titles, so may he create new offices”). That ability to create offices raised many “concerns about the King’s ability to amass too much power”; the King could both create a multitude of of-fices and then fill them with his supporters. J. Mascott, Who Are “Officers of the United States”? 70 Stan. L. Rev. 443, 492 (2018) (Mascott); see also G. Wood, The Creation of the American Republic 1776–1787, p. 143 (1969) (describing “the power of appointment to offices” as “the most insid-ous and powerful weapon of eighteenth-century despotism”); T. Paine, Common Sense (1776), reprinted in The Great Works of Thomas Paine 11 (1877) (explaining that “the crown . . . derives its whole consequence merely from being the giver of places and pensions”). In fact, one of the grievances raised by the American colonists in declaring their independence was that the King “ha[d] erected a multitude of New Offices, and sent hither swarms of Officers to harass our people and eat out their substance.” Declaration of Independence ¶12. The Founders thus drafted the Constitution with “evidently a great inferiority in the power of the President, in this particular, to that of the British king.” The Federalist No. 69, at 421. (Id., pp. 3-4; emphasis added.)

Justice Thomas aptly notes the obvious, namely that when Mr. Smith was appointed to the “office” created by Mr. Garland, there was no citation to any statute and the Justice Department has not cited to any statute that actually creates such an office.  The concurring opinion therefore quotes James Madison, who warned us:

 “If there is any point in which the separation of the Legislative and Executive powers ought to be maintained with greater caution, it is that which relates to officers and offices.” 1 Annals of Cong. 581. (Trump v. United States, p. 6.)

The man appointed by executive branch fiat

Finally, as to the very man appointed to the office of “special counsel” in an apparently “extra-Constitutional” manner,  a more principled man might have refused this appointment.  Indeed,  based on the insidious motivation underlying the supposed establishment of a special counsel’s “office” by Mr. Garland, it would have been quite easy for Mr. Smith to have refused this appointment on the grounds it is improperly-created under the provisions of Article II, Section II.

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