China, Part One

Blue. That was my first impression of the landscape as our plane made its approach to the improbably gigantic Bejing Capital International Airport, which shortly before the 2008 Olympics turned a bucolic suburb into one of the busiest places in the world. Blue roofs. You don't see a lot of blue roofs in America, but there, splashed across the countryside, they were — baby, cerulean, baboon-ass, and every other shade you can imagine. They caught the eye from factories and warehouses and shacks and from the clusters of apartment towers, identical and symmetrical and eerily neat, islands in a sea of green. I've seen a half-dozen explanations online — that they categorize industrial buildings, that they hint at a resurgence of faith, that they are remnants of central-planned design, and so forth. I've yet to find anything authoritative; maybe some clever reader knows.

Green — that was the next thing. Flying into Los Angeles I'm used to a concrete-colored Gibsonesque sprawl farther than I can see, but Beijing — for all of its 13 million people — is still surrounded by vast swaths of green, the exurbs dotting it instead of dominating it.

Clean came next. We were last in Beijing in 2007, when we picked up our daughter Elaina. Then the city was struggling to prepare for the 2008 Olympics, and ramshackle scaffolding and heaps of construction equipment were everywhere. It was not memorably clean. But 2016 Beijing — at least the parts we've seen so far — is unsettlingly clean, Disney-clean, clean in a way that invites dark speculation into how such cleanliness is maintained. It's difficult to spot trash. I don't know if this is a result of a vast infrastructure devoted to picking it up, or cultural distaste for dropping it, or both. Even the cars seemed clean and neat. I couldn't put my finger on what seemed off about the roads until I realized how few old or beat-up or filthy cars seemed to be on Beijing's main streets. There were hardly any beaters to be seen.

The buildings that were encrusted with scaffolding in 2007 are now long-built or repaired. Certainly Beijing still has rows of boxy apartment buildings, identically grim, and its fair share of brutalist concrete. But it also has pleasant modern-looking apartment blocks and shining new office buildings with juts and curves and swoops and whimsical skybridges. Ancient and modern and beautiful and ugly rub shoulders. For all the stereotypes about communist architecture I saw very little as dystopian as FBI headquarters or downtown LA's criminal courthouse.

Speaking of communism and dystopian government, it wasn't much in evidence, at least in the parts of Beijing we've seen so far. We saw numerous Russian flags along the highway from the airport, raised to salute a visiting Vladimir Putin, but the Chinese flag wasn't omnipresent. To the contrary, it was rarer by an order of magnitude than the American flag in a typical American city. Nor did I see overt propaganda of the sort that still lingered in 2007 — the closest was a huge sign with the English translation CONGRATULATIONS TO POSTAL SERVICE ON SUCCESSFUL INTRODUCTION OF NEW INVESTORS, which is somewhat less than communist in content. Armed soldiers ("Look, they have machine guns," said my mother-in-law. "Those aren't . . . never mind.") guarded some edifices along the main boulevard, but unobtrusively. People wandered about and started at their phones and ate and drank and lived like they do anywhere else. The most prominent sign that we were someplace politically different was the fact that we had to use a VPN to visit Facebook or Twitter.

And the traffic! In 2007, the fabled Beijing traffic lived up to every stereotype. Cars hurled themselves like berserkers at our tour bus's fenders, and weaved about like a chase in a Michael Bay movie. Now? Well, I would hesitate to drive myself, but it was comparatively placid, not much worse than someplace like Boston. I saw a family serenely bike between the lanes, parents masked and baby sandwiched impassively between them.

In short, what seemed most alien about Beijing was how it failed to live up to expectations or stereotypes. It seemed thoroughly westernized, with only glimpses of its former life — a trio of old men fishing in the river as SUVs whizzed across a bridge over their heads, a glimpse of hutongs, an occasional conical hat. I'm looking forward to seeing more of the city this week, and to visiting other cities over the next two weeks to see how they compare.

Today, Sunday, was our first full day. It was hot, and the air quality was quickly searing my lungs, producing an ache that reminded me of growing up in Los Angeles in the 1970s and early 80s. So we visited the aquarium at the zoo, which was indoors and sufficiently diverting for the kids, and for me.

Let's play "fish or garage metal band?"

Let's play "fish or garage metal band?"

This sign brought to you by the Society for Having Absolutely No Idea How Kids Work

This sign brought to you by the Society for Having Absolutely No Idea How Kids Work

Honestly I can't keep up with all the HBO shows these days

Honestly I can't keep up with all the HBO shows these days

Later I took my son Evan and daughter Elaina to the hotel pool. Nominally Elaina — who has completed four years in a Mandarin immersion program — is our translator. Practically she's mostly waiting, quivering in anticipation, to translate Thrice-Peppered Squid Taint In Mungbean Oil as "sweet and sour chicken." I quickly discovered she did not know the word for "towel" and was disinclined to get there through description. Nor was it a word that the hotel believed pool employees needed to know in English. I was left to wander from pool attendant to pool attendant, patomiming. We do not have whatever it is you wish to rub or wrap yourself with, American, their expressions said in a very courteous and non-judgmental way. I found the towels eventually, and returned to the pool to soak away the travel and the heat, clad in the required black bathing cap, which makes me look like a condemned manatee.

More to come.

Get The Popehat T-Shirt

Do you want to virtue signal that you believe in liberty, are prone to making abrupt taint-related invitations, and may possibly erupt into an angry rant about some obscure point of law at any moment? Now you don't have to say a word! The first Popehat t-shirt is available at Cotton Bureau — one design for now, men and women, all sizes, three colors.

This is a test run. If there's interest, we'll be offering more designs. Requests and suggestions for designs are welcome (you can always email me at ken at popehat dot com).

We're not getting any money off of this initial run. I don't plan on using T-shirts as a revenue generator — right now our single ad and Amazon Associates (remember to order from Amazon using the link to your right!) generate enough revenue to cover hosting and such. If we do ever set prices to make a profit, that profit will be going to an announced charity.

Have fun!

In Support Of A Total Ban on Civilians Owning Firearms

I support the argument that the United States should enact a total ban on civilians owning firearms.

Oh, I don't support the ban. I support the argument.

I support the argument because it's honest and specific. It doesn't hide the ball, it doesn't refuse to define terms, it doesn't tell rely on telling people they are paranoid or stupid in their concerns about the scope of the ban. The argument proposes a particular solution and will require the advocate to defend it openly.

That elevates it above most gun control dialogue.

I've argued before that gun control debates would be improved if people avoided culture-bundling and cared about the meaning of words. Most don't. Too much looks like this:


There's a very good reason to care about what you mean when you argue that "assault weapons" should be banned: the term is infinitely flexible. If you think it inherently means something specific, you haven't bothered to inform yourself about the issue. "Assault weapon" means whatever the definers decide it should mean. Banning "assault weapons" is the gun version of banning "hate speech" or "disruptive protest" or "dangerous persons" or "interfering with a police officer" — it's a blank check. And I don't like handing out blank checks to the government to ban things and jail people.

I'm not making an argument that it's impossible to define assault weapons.1 I'm not even making an argument that banning "assault weapons," defined with reasonable specificity, would violate the Second Amendment. There's an argument to be made about that — an argument that's still in its jurisprudential infancy, given the recency of Heller — but it's not my point. My point is that if you won't even try to define what you want to regulate, and how, the argument about practicality and constitutionality is both abstract and premature. It's the same with defining automatic and semi-automatic. I don't want gun control advocates to acquire some vague grasp of what those mean because I'm eager to have my neighbor own a machine gun. I want advocates to learn the difference so I can have some level of confidence that I know what kind of proposed government power we're debating. Right now the debate seems choked with people who don't know, are proud of not knowing, and think you're a redneck gun-nut asshole if you want them to know because they feel very strongly about this. I decline to take that seriously.

Gun control advocates may argue that it's pointless to define terms because gun control opponents will oppose gun control laws no matter how they are crafted. That's a fair description of the behavior of some — perhaps even most — gun control opponents. But it's not a logical or moral excuse for not trying. Urging vague and unconstrained government power is not how responsible citizens of a free society ought to act. It's a bad habit and it's dangerous and irresponsible to promote it.

This is not an abstract or hypothetical point. We live in a country in which arbitrary power is routinely abused, usually to the detriment of the least powerful and the most abused among us. We live in a country in which we have been panicked into giving the government more and more power to protect us from harm, and that power is most often not used for the things we were told, but to solidify and expand previously existing government power. We live in a country where the government uses the power we've already given it as a rationale for giving it more: "how can we not ban x when we've already banned y?" We live in a country where vague laws are used arbitrarily and capriciously. We live in a country that is about to nominate Donald Trump as the Republican candidate for President of the United States: a man who wants to limit free speech, ban people based on religion, and generally jackboot around. We live in a country where his opponent is a long-time advocate of the security state who got famous helping label young black men "superpredators."

Maybe gun control advocates won't define terms because they know that the defined terms they want won't sell. That's not unusual; it's typical politics. That doesn't make it right. You have no moral or rational claim to your fellow citizens' support for a deliberately vague law. Cowboy up. Define what you want and argue for it. Anything else is either silly and self-indulgent, or deliberately deceitful.

Lawsplainer: IT'S NOT RICO, DAMMIT

I have a question.

Angels and ministers of grace defend me.

Would it be RICO if . . .



. . . .


But how do you know? I haven't even described the case yet.

It's never RICO!

I mean, not literally never. But I can say with a very high level of confidence that if you're asking me, it's not RICO.

But it's an important case! And the facts are terrible! This defendant did really bad things.

That's not what RICO means. RICO is not a fucking frown emoji. It's not an exclamation point. It's not a rhetorical tool to convey you are upset about something. It's not a petulant foot-stomp.

RICO is a really complicated racketeering law that has elaborate requirements that are difficult to meet. It's overused by idiot plaintiff lawyers, and it's ludicrously overused by a hundred million jackasses on the internet with an opinion and a mood disorder.

You have a really big vein throbbing on your head and I am concerned it is going to burst and it will be really gross.

I'm going to need a minute here.

Calm. Peaceful. Go to your happy place.


Okay. I'm good. Proceed.

So what is RICO, anyway?

RICO is the Racketeer Influenced and Corrupt Organizations Act, because goddamn Congress likes acronyms like your great-aunt likes porcelain cats.

Congress passed it in 1970 to address organized crime. It was specifically designed to help with some of the difficulty that prosecutors traditionally had in cracking big organized crime rings — mafia families, drug trafficking organizations, that sort of thing.

What sort of problems?

The stuff that crime bosses did was already illegal. But it could be very hard to attack the whole enterprise instead of one act after another. You could take down some mook for one street assault, but you couldn't take down the mook's boss's boss. You had to nibble at the edges, and meanwhile the crime family or drug ring or whatever kept making money.

RICO was designed as a way to describe, legally, the whole criminal enterprise based on some of its acts, go after people who supported it, and take its assets.

Why not just charge a conspiracy?

Good question. A RICO claim is really just an elaborate over-complicated conspiracy claim. The answer, in part, was that it was 1970, crime was way up, Nixonian "law and order" was popular, and everyone wanted to be seen as doing something.

Wait. I thought RICO let you sue people. It's a criminal law?

It's both.

And even though it was passed to deal with large-scale organized crime, now it's vastly overused — not so much by the government, but definitely by plaintiff attorneys.

So you can't sue people for RICO?

Oh you can. It's just that almost all of the time you'll be wrong to do so. A RICO claim doesn't mean "these are bad people." It doesn't mean "they did bad things." It doesn't mean "they did lots of bad things" or "they did bad things over state lines" or "they did bad things and some of them were crimes" or "they did bad things and we need to take them really seriously."

But that's how people use RICO — as an idiotic rhetorical device. Like this:


Wow. I'm only an abstract imaginary foil written to sound like an idiot and even I know that's really stupid.

I know, right? But I hear his books are good.

So people on the Internet use "RICO" to sound tough. Do lawyers overuse it too?

Oh hell yes. And judges hate it. It's overcomplicated and most of the time it adds nothing to the case.

It's so overused — especially by crazy pro se plaintiffs — and so needless that a lot of federal judges have special RICO orders they issue in RICO cases demanding that the plaintiff explain, in painful detail, why they think they have a RICO claim. Like this one, for instance. Judges issue them automatically as soon as a RICO case hits their docket to gather information to dismiss the case because it's not fucking RICO you idiot.

So what would be a righteous civil RICO claim, as opposed to all the bogus ones?

Let me answer that by telling you the elements of civil RICO — that is, the list of things a plaintiff would have to prove to win a RICO case.

To win, a plaintiff would have to prove (1) conduct, (2) of an enterprise, (3) through a pattern, (4) of racketeering activity called "predicate acts," (5) causing injury to the plaintiff’s "business or property."

Each of those terms means something complicated — each term is a gateway to a whole bunch of other issues.

Okay. What's "conduct"?

That just means that you have to prove that the particular defendant has a role in the operation or management of the enterprise.

Wait. Isn't the defendant the enterprise?

No. In fact the defendant can't be the same as the enterprise.

An enterprise is a legal entity or group of people. So, for instance, the Gambino Crime Family can be an enterprise, or Prenda Law. But the enterprise has to be different than the defendant for a RICO claim. Instead, the defendants have to be people and entities who run the enterprise. So if you filed a crazy pro se complaint saying that General Motors is a criminal enterprise and named General Motors as the defendant, your claim would be legally insufficient.

That sounds convoluted.

It is. But remember — RICO wasn't supposed to be an everyday tool. It's supposed to be a way to take down slippery crime families.

Okay. So what's a pattern?

A pattern is at least two acts of racketeering activity — which we'll get back to later — over a ten year period. The activity has to be both "related" and "continuous."

"Related" means that it's part of the same effort — so if your crime family does drugs, prostitution, and extortion, all of those could be related. "Continuous" means you have to show either a series of acts over a substantial period of time, or past conduct that by its nature suggests it will continue.

Again, RICO's supposed to be about organized crime. So if you and I decide to knock over a bank, that's not RICO — it's not part of a pattern of conduct, even if the FBI can find more than two charges to apply to it. The idea of RICO is "these people are in the crime business, and as part of the crime business they committed a crime against me."

So what's "racketeering activity"?

Racketeering activity is the commission of a whole bunch of very specific federal crimes. But it's not just any crime. It's only the ones on the list.

That's one of the reasons that the "[advocacy organization I don't like] should be sued for RICO!" arguments are so infuriating. Where's the underlying federal crime? And how is it harming the plaintiff's business or property? RICO doesn't mean "this organization advocates things that are bad for society."

So that's it, right?

No, remember the last element — you have to show that all of the foregoing causes injury to the plaintiff's business or property. It can't be a harm to society at large.

Also, you can sue someone for conspiring to commit RICO — meaning you have to show they agreed to do all that.

Is criminal RICO the same?

Mostly. It's more complicated. It can include a RICO conspiracy or acquiring a share in a RICO enterprise or to use a RICO enterprise to collect debt.

This sounds hard to allege and prove.

It is. It's really difficult even to allege it right in a complaint. RICO claims usually generate a series of motions to dismiss. That's why judges often have standing orders requiring plaintiffs to explain how and why they are claiming RICO — that's something judges don't do for almost any other cause of action. Most of the time, if a civil plaintiff can prove RICO, they can much more easily prove fraud or other more straightforward claims.

So why bring a civil RICO claim?

Well, if you win, you can get attorney fees, and possibly even triple your actual damages.

But mostly I think it's a scare tactic and a propaganda tool, as its idiotic rhetorical misuse suggests. Lawyers bring RICO claims so they can say "the defendant's behavior is so criminal that we sued them for RICO!" Dupes play along by describing RICO claims as "charges," and generally by acting like a RICO claim suggests that there's already been a finding that someone did something wrong.

It doesn't mean that. A RICO claim just means someone wrote down a RICO claim and filed it. Even if the RICO claim survives a motion to dismiss, that just means that a plaintiff was able to allege a complex set of facts in a convoluted way. It doesn't mean those facts are true.

So why do we still have civil RICO?

Mostly because Congress is more scared of being called soft on crime than they are interested in reforming time-wasting abusive statutes.

There have been some reforms. One Congressional amendment prevented plaintiffs from using securities fraud as a racketeering act under the statute, probably because investment banks donate enough to members of Congress. And every now and again someone proposes reform. But it's dry, boring, and complicated, so it never goes anywhere. For now, we're stuck with it: a convoluted statute used by twits and crazies to make litigation more expensive, and waved around by morons like a big foam finger at a ball game.

Well that's a little pessimistic.

Everything is shit.

Would you like a cookie?

. . . yes.

The Ninth Circuit Offers Prenda Law A Brusque Bench-Slap

The notorious gang of crooked fraudsters and copyright trolls Prenda law — documented extensively here — continues to face bad fortune. Last month we learned that the FBI is investigating them. Now, the United States Court of Appeals for the Ninth Circuit has affirmed the apocalyptic sanctions order that marked their turning point — Judge Wright's geek-reference-laden death blow sanctions order.

We shouldn't be surprised, as the Ninth Circuit oral argument more than a year ago went very badly for Prenda. The Ninth Circuit's languidly decided opinion is worse. You can read it here. It's unpublished, suggesting that the judges didn't view it as presenting sufficiently novel issues to merit publication. It's also relatively brief and informal, suggesting the panel didn't think that any of it presented a close call. It accepts Judge Wright's conclusions as well-supported by the record and repeats them to brutal effect:

Based on the myriad of information before it—including depositions and court documents from other cases around the country where the Prenda Principals were found contradicting themselves, evading questioning, and possibly committing identity theft and fraud on the courts—it was not an abuse of discretion for Judge Wright to find that Steele, Hansmeier, and Duffy were principals and the parties actually responsible for the abusive litigation. Similarly, it was not an abuse of discretion for Judge Wright to find that the Prenda Principals were indeed the leaders and decision-makers behind Prenda Law’s national trolling scheme.

. . .

The Prenda Principals have engaged in abusive litigation, fraud on courts across the country, and willful violation of court orders. They have lied to other courts about their ability to pay sanctions.

Prenda's dead. The courts are bouncing the rubble and the FBI is ambling out to slit the throats of the wounded.

Good riddance.

Hello! You've Been Referred Here Because You're Wrong About The First Amendment.

Welcome! Someone has referred you to this post because you've said something quite wrong about the First Amendment.

I apologize for this impersonal approach to your mistake. I would prefer to offer you an artisanal response to your wrongness, something that would respect and celebrate the unique ways that you've taken one of the most fundamental aspects of our mutual civic heritage as Americans and shat your ignorance upon it. Unfortunately, there are quite a few of you and only one of me, and I'm busy, and lazy. Also, quite frankly I feel that if I have to explain these things to just one more person, I may go quite mad. I don't mean mad in the vaguely amusing, sympathetic, relatable ways that people expect from me. I mean mad in an uncouth and alarming sense that will likely result in my calamitous misuse of some implement residing in the dark marchlands between tool and weapon, such as an adze.

So. Constrained as we are by this impersonal medium, let's discuss why you are completely wrong.

If you said something like "The First Amendment says 'Congress shall make no law,' and Congress isn't involved here, so it's not a First Amendment issue."

Congratulations! You've read the First Amendment. Even if you've ignored the last century of discourse about it, this raises you above most of the populace, particularly on the Internet.

You're right that the plain language of the First Amendment only limits Congressional power. But you've ignored some American history. Don't worry: you've only ignored a century and a half of it. The Bill of Rights was originally understood to limit the power of the federal government without limiting the states. But in 1868, after some recent unpleasantness, we amended the Constitution to add the Fourteenth Amendment, which includes this language: "No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." By its own terms, the Fourteenth Amendment forbids the states from infringing certain rights.

But which rights? Well, in the early 20th Century, the United States Supreme Court decided that certain fundamental rights enumerated in the Bill of Rights are included in the concept of liberty identified in the Fourteenth Amendment and therefore protected from infringement by "due process of law." This process — under which the court decided that the Fourteenth Amendment incorporated by reference rights from the Bill of Rights and made them enforceable against the states — is called incorporation, and the notion is called the incorporation doctrine. The Supreme Court has decided that most, but not all, rights from the Bill of Rights are incorporated by the Fourteenth Amendment and therefore protected from infringement by states. The Supreme Court decided — or, to be more accurate, assumed — in a 1925 decision that freedom of speech under the First Amendment is one of the rights enumerated in the Bill of Rights that the states may not infringe because it is incorporated by the due process clause of the Fourteenth Amendment.

Therefore, the First Amendment does apply to actions by states and their political subdivisions (cities, counties, state agencies, etc.), and has for more than ninety years. You're wrong. Please stop being wrong and asking other people to be wrong with you.

If you said something like "the First Amendment only stops the government from censoring you so it doesn't apply to this civil case, which is one individual suing another."

Welcome back! You're still wrong. The First Amendment limits your ability to sue people.

Civil lawsuits employ government power in two ways. First, they are premised on laws passed by legislatures. A defamation lawsuit is a lawsuit based upon a defamation law enacted by a state, which is an action by the state. On occasion, they're based on a nebulous collection of non-statutory precedents called common law, which are nonetheless recognized and enforced by the government through the courts. Second, civil lawsuits employ government power to force you to come to court and force you to pay any resulting judgment against you.

So in 1964, faced with an Alabama defamation judgment against the New York Times for running an advertisement about abuse of civil rights protesters by local officials, the Supreme Court noted that the First Amendment obviously applies to private civil actions that employ state power. "The test is not the form in which state power has been applied but, whatever the form, whether such power has, in fact, been exercised." Because civil lawsuits aimed at speech invoke state power to attack speech, they are limited by the First Amendment. That doesn't mean that all civil lawsuits attacking speech are absolutely barred. It means that First Amendment analysis applies to them, and may or may not provide a defense to them.

If you think about it even a little, this is the only sensible interpretation. Under a contrary interpretation, a state could pass a law saying that private parties could sue you for offending them, or annoying them, or for expressing certain political views the state disfavors. People could then use the coercive power of the courts to sue you based on those laws. Although I admit there is a certain appeal to a regime under which I may ask a judge to compel you to pay my bar tab if you say stupid and ignorant things about the First Amendment, I recognize that it is not consistent with ordered liberty.

So: you're wrong, stop trying to spread wrong like gonorrhea in the Theater Department, try to be right, etc etc etc.

Fault: It's Yours, But Not ONLY Yours

You are at fault for not educating yourself about how our most fundamental American rights operate. However, you are not the only one at fault. Wrongness is not a zero-sum game. I also blame your teachers, although I sympathize with them. Also, America's press could not do a worse job informing you about the First Amendment if it tried, which frequently I believe it does. If you would like to know more about some of the ways that the American media shares blame for you being wrong, consider these classic media free speech tropes. If you would like to observe some of the ways that the educational system has failed us, attempt conversation with a college student.

I bid you good day.

Lawsplainer: When Must Federal Judges Recuse Themselves, Anyway?

I have a question about Donald Trump.

Hell. I am in Hell. This is Hell.

Calm down. I just want to ask about his argument about that federal judge hearing the Trump University case.

Judge Gonzalo Curiel, the United States District Judge hearing two related cases against Trump and Trump University, which I wrote about last week?


You couldn't retain his name for six whole days?

You're going to make this difficult, aren't you?

You have no idea.

I just want to know whether Trump has any law on his side. When do federal judges have to recuse themselves?


There are two federal laws governing recusal. One is about procedure, the other is about substance.

Title 18, United States Code, section 455 governs substance. It starts with a catch-all:

(a) Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.

Then it offers specifics:

(b) He shall also disqualify himself in the following circumstances:

(1) Where he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding;

(2) Where in private practice he served as lawyer in the matter in controversy, or a lawyer with whom he previously practiced law served during such association as a lawyer concerning the matter, or the judge or such lawyer has been a material witness concerning it;

(3) Where he has served in governmental employment and in such capacity participated as counsel, adviser or material witness concerning the proceeding or expressed an opinion concerning the merits of the particular case in controversy;

(4) He knows that he, individually or as a fiduciary, or his spouse or minor child residing in his household, has a financial interest in the subject matter in controversy or in a party to the proceeding, or any other interest that could be substantially affected by the outcome of the proceeding;

(5) He or his spouse, or a person within the third degree of relationship to either of them, or the spouse of such a person:

(i) Is a party to the proceeding, or an officer, director, or trustee of a party;

(ii) Is acting as a lawyer in the proceeding;

(iii) Is known by the judge to have an interest that could be substantially affected by the outcome of the proceeding;

(iv) Is to the judge’s knowledge likely to be a material witness in the proceeding.

So all federal judges are dudes?

Don't start with me.

That "might reasonably be questioned" is awfully broad. Doesn't that mean Trump is right?

Only if you pretend the last century of law didn't happen. Federal courts have ruled many, many times about what is a "reasonable" question and what isn't. "Reasonableness" is defined in the context of some fundamental assumptions about the legal system — especially that judges generally won't act like sectarians based on their race and religion. Moreover, courts recognize that all judges had lives before becoming judges, and those lives necessarily involved a wide range of affiliations. Plus, the test is based on the perception of a reasonable person, a "well-informed, thoughtful, and objective observer, rather than the hypersensitive, cynical, and suspicious person." So. Not a Trumpalo, not a Clintonista.

So Trump's argument that a "Mexican" can't hear is case is bogus?

Beyond the shadow of a doubt based on a century of law. Many courts have considered and rejected the argument that a judge of a particular ethnicity, gender, or religion is inherently biased because of the nature of the case. In fact, the argument has been so repeatedly and thoroughly rejected that it's sanctionable to make it.

What other kinds of arguments have federal courts rejected?

You want me to do a lot of research, don't you? I'm going to cheat and summarize straight from the Rutter Guide: federal courts have rejected arguments that judges' impartiality could reasonably be questioned based on their pre-judicial law practice focus, their special expertise, their memberships in groups prior to appointment, their political views discussed prior to appointment, their giving lectures or writing on the topics involved in the case, their expression of opinions about propositions of law, their political donations before appointment, which President appointed them, where they went to school, and their chosen political party.

Wow. It sounds hard to force recusal. When have courts required it?

Again I cheated by looking at Rutter! Courts have ruled that judges should have recused themselves when they had pending employment offers from a party's law firm, when they had a close personal relationship with counsel for a case, when they had a close personal relationship with a party or witness, when the court's staff was employed by or very close to a party, when a close family member is a lawyer at a party's law firm, when the judge was a trustee of an entity that is a party, when the judge previously worked on the case as an attorney, when they had recently been a losing defendant in a lawsuit by a party, or when the judge has personal knowledge of disputed facts in the case as a witness.

In addition, sometimes a judge's comments about a case can require recusal when they show bias.

Really? But Trump says that Judge Curiel's rulings show bias. Doesn't that require recusal?

No. Bias has to be extrajudicial. That means that you can't recuse a judge just because the judge has concluded and expressed that your case is weak or that your lawyer is acting like a jackass in court. You absolutely can't recuse a judge because they ruled against you. Recusal is only required when a judge displays bias arising from knowledge or grounds from an inappropriate source, not from sitting on your case. To require recusal based on the judge's comments about his or her observations of the proceedings, the comments have to be truly extreme — "such a high degree of favoritism or antagonism to make a fair judgment impossible."

So: a wartime judge who says that "[o]ne must have a very judicial mind, indeed, not to be prejudiced against German Americans because their hearts are reeking with disloyalty.” That's extrajudicial bias requiring recusal. Saying that the evidence shows that the defendant behaved badly, or that the plaintiff's arguments lack merit? That's not.

But can't judge Curiel's impartiality be reasonably questioned now that Trump has repeatedly attacked him?

No. It's extremely well established — as well-established as anything in federal law — that you can't judge-shop by being a douche. A party's insults, criticisms, and even threats are not a valid basis for recusal. Otherwise you could judge-shop by attacking judges until you found one you liked.

What about Judge Curiel's membership in a Latino organization?

Leaving aside for the moment whether the attack is deliberately dishonest because it conflates a bar association with a political advocacy group, membership before becoming a judge isn't grounds for recusal. Moreover, membership in a religious organization is not grounds for recusal. Membership in bar associations and legal associations like the one at issue here has repeatedly been found not to require recusal. That's not just for ethnic organizations. So, for instance, membership in the Guild of Catholic Lawyers was not a basis for recusal in a suit against the New York Archdiocese. Hoatson v. New York Archdiocese, 280 Fed.Appx. 88 (2nd Cir. 2008).

I will note that calling an organization "the race," even if you don't mean it that way and the phrase has been used to mean other things and it's history is totally different and it's not the same thing at all so shut up, is kind of asking for trouble.

Even if one argues that Judge Curiel's membership in a Latino attorney organization might show bias, Trump's lawyers would have a problem: they'd be arguing that the alleged bias didn't arise until long after Judge Curiel started hearing the case. Trump's argument, to the extent it can be nailed down, is that Trump wants to build a wall and Judge Curiel is a member of a Latino organization and therefore Judge Curiel is biased. But Trump didn't start talking about building a wall until Judge Curiel had already been hearing the case for years. In general, a party can't manufacture bias through new conduct after the judge has been assigned. That stops parties from judge-shopping. So, for instance, if I don't like how my case is going before a Turkish-American federal judge who is a member of a Turkish-American group, I can't force a judge-switch by becoming a loud advocate for official recognition of the Armenian Genocide.

So Judge Curiel was right to refuse to recuse himself?

Judge Curiel hasn't refused because Trump's lawyers haven't made a motion for recusal, because they know it's without merit. Recusal motions are governed by Title 28, United States Code, section 144. If you make such a motion, the targeted judge looks at it to make sure it is timely and generally legally sufficient — that is, not facially ridiculous. If it clears that low hurdle, it goes to a different judge for determination, and the case is stayed in the meantime. Trump's made no such motion.

Do you think his attorneys will make such a motion?


So what's Trump doing?

Posturing and playing to crowds who don't like judges, or "Mexicans," or especially "Mexican" judges. Puerile "Alpha" bullshit.

Can't Judge Curiel just say "fuck this noise, I'm out" and recuse?

No. Federal judges have an affirmative obligation not to recuse themselves except for legally sufficient grounds. That stops the reverse of judge-shopping: ditching unpleasant, boring, or otherwise undesirable cases.

Maybe Trump and his supporters don't agree with this legal precedent?

Maybe they don't. But as far as I know Trump never got upset about federal recusal law until he ran for President. And I haven't heard him, or his supporters, argue that he's being oppressed by a century of wrongly-decided law; I've heard them make uninformed or deliberately false statements about what the law requires.