Free Speech

Pretrial Release Condition: Can't Speak About "the [Capitol] Protest or the Matters Related to the United States Government"

And can't "participate in any protests, rallies or demonstrations."

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Jeremy Chisenhall (Lexington Herald Leader) reports:

[Damon Michael Beckley, who was subjected to these conditions,] has been charged with unlawful entry of a restricted building and disorderly conduct on Capitol grounds, according to the FBI. He was filmed at the Capitol on Jan. 6, saying, "we aren't putting up with this tyrannical rule. If we've got to come back here and start a revolution and take all of these traitors down, which is what should be done, then we will." …

Other Kentucky residents charged in the riot face atypical constraints. Gracyn Courtright, a University of Kentucky student, can only travel to D.C. and West Virginia for court appearances and Kentucky for college classes, according to court records.

Robert L. Bauer was ordered not to attend or participate in any public rallies or protests as a condition of his release, according to court records. He was also barred from entering any state or federal Capitol grounds.

I did a bit of research back when there were stories about broad pretrial release restrictions on people arrested in the Oregon protests, and the matter is a bit complicated.

[1.] Generally speaking, the government has a good deal of latitude in imposing conditions on convicted defendants who are released on probation and parole, including conditions that restrict defendants' speech or association. One way of thinking about it is that the people have been convicted and could be in prison, where their First Amendment rights can be sharply restricted.

[2.] Courts have at times also imposed similar conditions on people who have been indicted (based on a finding of probable cause that they committed a crime) and are awaiting trial. One can imagine a rule saying that you can't be deprived of liberty at all until you've been found guilty beyond a reasonable doubt, whether by being locked up or by being subjected to pretrial release conditions; but that's not what our legal system has adopted.

Thus, for instance, in U.S. v. Collins (N.D. Cal. 2012), several defendants were indicted for interfering with PayPal computers (via a distributed-denial-of-service attack), as retaliation for PayPal's blocking of service to Wikileaks. The court upheld a pretrial release condition barring the defendants from using Internet Relay Chat (IRC), because the defendants had used IRC to coordinate their attacks:

While any limitation on free speech must be imposed cautiously, and each defendant retains the presumption of innocence during the pretrial period, the IRC restriction in this case furthers a compelling government interest in protecting the public from further crimes coordinated through a means specifically addressed by the grand jury in the language of the indictment. The condition operates in a content-neutral fashion. The condition does not restrict political or any other discourse by any other means, even by use of other internet services such as email, blogging services such as Tumblr, chat other than IRC, or social networks such as Facebook or Google+. All of this suggests to the court that a restriction on IRC use, while permitting substantial internet use for purposes that include political discourse, strikes a reasonable balance between the legitimate and yet competing interests of the parties….

The court also notes that the condition does not impose any burden greater than associational and other First Amendment-impacted restrictions routinely imposed by courts as a condition of pretrial release. See, e.g., United States v. Spilotro (8th Cir. 1986).

But the court set aside the Twitter use condition:

The indictment makes no mention of Twitter whatsoever…. In the absence of any indictment charge, any evidence, or even any specific proffer of such illicit activity [using] Twitter, the court is not persuaded that the restriction advances any legitimate interest in protecting the public's safety or prevent any defendant from fleeing. Under these circumstances, any illicit use of Twitter by any defendant may be adequately addressed by the monitoring approved elsewhere in this order.

(See also U.S. ex rel. Means v. Solem (D.N.D. 1977), which struck down a much broader, content-based speech restriction.)

The court also rejected a First Amendment challenge to a focused release restriction in U.S. v. Murtari (N.D.N.Y. 2008),

For an extended period Murtari has engaged in various activities in and around the Federal Building [in Syracuse, N.Y.] apparently calculated to draw attention to his cause, in which he advocates for fathers' rights, and to lend support to his efforts to secure a meeting with Senator Hillary Clinton with the intent to elicit her assistance…. As a result of earlier encounters, defendant has been banned from  entering the Federal Building without permission, other than for required court appearances, and has been arrested on numerous occasions by security personnel assigned to the facility. While the majority of his arrests prior to those now at issue have resulted from the defendant's entering onto the Federal Building premises and refusing to leave when ordered to do so, some have also involved his refusal to obey explicit directions that he not write in chalk on government property adjacent to the Federal Building.

In connection with two of these prosecutions, a magistrate judge had issued a pretrial order forbidding Murtari from "even entering peaceably onto federal property." But this, the court said, was permissible:

Without question, a defendant who is under court supervision, including based upon a conditional pretrial release order, does not necessarily forfeit all of his or her First Amendment rights. Consequently, in fashioning suitable conditions to govern the defendant's release pending trial on the various charges against him in this case, the court was required to do so in a manner which would result in no greater intrusion upon defendant's constitutional rights, including those guaranteed under the First Amendment, than reasonably necessary in order to effectuate the objectives of the Bail Reform Act, and to additionally insure defendant's compliance with the court's order.

The order issued by Judge DiBianco on September 7, 2007 undeniably restricted defendant's access to a forum which otherwise would be available to him, as a member of the public, for certain activity protected under the First Amendment. That order was issued, however, based upon specific findings by the court that defendant had previously been charged and convicted of engaging in criminal conduct at the Federal Building and had "indicated that he can not assure the Court that he will not engage in identical conduct during the pendency of [the criminal proceedings in which that order was issued]." Under those circumstances I find that the order issued by Judge DiBianco was reasonable and was limited to encroaching upon defendant's First Amendment rights only to the extent necessary based upon his findings….

Finally, one more example, from U.S. v. Brown (D. Ariz. 2008):

Defendant has been indicted for receiving and possessing child pornography; hence, probable cause exists that Defendant committed these sexually-related  crimes. Mr. Emerick testified that "there is a relationship between viewing sexually explicit pornography depicting consenting adults … and the potential for viewing child images and/or committing hands-on offenses against children." In view of that relationship, the pretrial release condition that "[t]he defendant shall not access via computer or possess any photographs or videos of sexually explicit conduct …" is a condition that will further protect the public from Defendant, while on pretrial release.

Such a condition directly serves the Government's "legitimate and compelling" pretrial goal of protecting the public, and constitutes only a limited abridgement of Defendant's First Amendment rights for a relatively short period of time [citing a probation condition case, and Murtari].

[3.] I couldn't find any Supreme Court case or appellate case dealing specifically with speech-restrictive pretrial release conditions, but U.S. v. Scott (9th Cir. 2006) dealt with pretrial release conditions that limited defendant's Fourth Amendment rights. (The conditions had allowed warrantless random drug testing and warrantless home searches of people who have been released pending trial.) It was a controversial, 2-1 decision, with seven judges dissenting from denial of rehearing en banc; but Judge Alex Kozinski's panel majority opinion had this to say:

[There is a] "… well-established principle that parolees and other conditional releasees are not entitled to the full panoply of rights and protections possessed by the general public" … [based on] the "transformative changes wrought by a lawful conviction and accompanying term of conditional release," and the "severe and fundamental disruption in the relationship between the offender and society, along with the government's concomitantly greater interest in closely monitoring and supervising conditional releasees," occasioned by a conviction and imposition of release conditions….

But Scott, far from being a post-conviction conditional releasee, was out on his own recognizance before trial. His privacy and liberty interests were far greater than a probationer's. Moreover, the assumption that Scott was more likely to commit crimes than other members of the public, without an individualized determination to that effect, is contradicted by the presumption of innocence: That an individual is charged with a crime cannot, as a constitutional matter, give rise to any inference that he is more likely than any other citizen to commit a crime if he is released from custody. Defendant is, after all, constitutionally presumed to be innocent pending trial, and innocence can only raise an inference of innocence, not of guilt.

While the Supreme Court has upheld the constitutionality of pretrial detention on grounds of dangerousness, the Court stressed that the statute it was upholding contained important safeguards, including the requirements that defendant be accused of a particularly serious crime and that dangerousness be proved to a neutral judicial officer by clear and convincing evidence. See Salerno.

Neither Salerno nor any other case authorizes detaining someone in jail while awaiting trial, or the imposition of special bail conditions, based merely on the fact of arrest for a particular crime. To the contrary, Salerno was explicit about what must occur under the federal Bail Reform Act—beyond arrest—before a pretrial criminal defendant could be detained: "In a full-blown adversary hearing, the Government must convince a neutral decisionmaker by clear and convincing evidence that no conditions of release can reasonably assure the safety of the community or any person."

Thus, the Supreme Court upheld the constitutionality of a bail system where pretrial defendants could be detained only if the need to detain them was demonstrated on an individualized basis. The arrest alone did not establish defendant's dangerousness; it merely triggered the ability to hold a hearing during which such a determination might be made.

It follows that if a defendant is to be released subject to bail conditions that will help protect the community from the risk of crimes he might commit while on bail, the conditions must be justified by a showing that defendant poses a heightened risk of misbehaving while on bail. The government cannot, as it is trying to do in this case, short-circuit the process by claiming that the arrest itself is sufficient to establish that the conditions are required. {Prior convictions and other reliably determined facts relating to dangerousness may be relevant to [a constitutionally adequate individualized determination that might justify certain conditions], but the mere fact that the defendant is charged with a crime cannot be used as a basis for a determination of dangerousness.}

[4.] So here's my general sense of the matter: Courts seem to be open to allowing some pretrial restrictions closely related to the crime of which the defendant is accused, if there's reason to think that the defendant poses a particular danger of committing the crime (or closely related ones) again. But the restriction needs to be quite narrow; and, under Scott, there would need to be an individualized determination that the person is quite likely to commit such crimes (e.g., would be likely to engage in trespass, vandalism or violence at a future protest)—a determination that would require some evidence beyond just his being accused of such a crime in the current case.

My sense is that this is a pretty significant bar, which the government might not be able to surmount in many cases (and likely not as to the Beckley conditions, see below). At the same time, it's also a pretty vaguely defined bar, so one can't speak with clear confidence in many cases; and it's closely tied to the particular facts of each case, so it's hard to speak about it categorically.

Perhaps this legal rule is wrong, and the government shouldn't be able to restrict people's First Amendment activities based just on their having been accused of a crime—regardless of the link between the restriction and the alleged criminal conduct, or of the evidence that the defendant is likely to reoffend. Perhaps such restrictions should be allowed (if at all) only on a conviction by proof beyond a reasonable doubt. But, rightly or wrongly, our current legal rule seems to be rather more complex and uncertain than that.

[5.] And my specific sense of the Beckley case: The restriction on all speech about the riot, or criticisms of the federal government (even if read as limited to criticisms related to the substance of the riot) strikes me as pretty clearly unconstitutional, even given the extra authority the government has as to pretrial release conditions. This is especially so because it does not "operate[] in a content-neutral fashion" and does "restrict political … discourse" of a certain sort through any "means," and not just one narrow technology.

The protest attendance restrictions also seem to be unconstitutional, unless there's specific evidence that Beckley is likely to engage in trespass, vandalism, or violence at future protests. (Note that the Oregon no-protest restrictions were quickly dropped.)

The ban on appearance on state and federal property (even if read to exclude local government property and streets and highways) doesn't necessarily implicate the First Amendment, but in many applications it might, for instance if he wants to go to a public lecture at a local university (assuming such things are allowed given the epidemic). And in any event it too seems much too broad, though perhaps the coronavirus lockdown might make its practical effect more limited.

NEXT: Today in Supreme Court History: January 24, 1968

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  1. I think this is rather outrageous in that he can’t even go to the post office. The speech ban is even worse in that he can’t speak about “the government” — this is something that Putin would do.

    I’ve long felt that the election was rigged with the help of the ChiComs, but then a lot of people felt that the 2016 election was rigged with the help of the Russians. What bothers me here is that this is a very clear attempt to silence critics of the government.

    It’s like a blanket prohibition of anyone arrested at a BLM protest from commenting about police officers. Any police officer…

    It’s stuff like this that — at the very least — smells real bad even if it isn’t an actual coup. It’s also tactically stupid on the part of the government because it immediately raises the question of “why are you so afraid of these people”?

    1. And if they are going to use “Double Secret Probation” instead of actually according these people trials. See: https://www.msn.com/en-us/news/us/justice-department-fbi-debate-not-charging-some-of-the-capitol-rioters/ar-BB1d1Upf?ocid=uxbndlbing

      I also don’t understand the claim that they can try them any place other than DC. Andrew Lelling, a normally level-headed USA, claimed that he would prosecute MA residents who went down there and I don’t see how he can. Even if they conspired in MA to go down there, the Federal offense would involve crossing a state line and hence wasn’t committed until they were in CT or RI, having crossed the state line.

      Making martyrs out of these people is STUPID — it will destroy the legitimacy of the Biden administration.

      1. I don’t know the specifics of any individual so I’m only talking generally here.

        Conspiracy is it’s own offense. If the agreement was made in a place then that is a place where a federal crime occurred. Crossing the state line may be necessary for the overt act part, but that doesn’t change that part of the offense occurred in the original place and therefore can be tried there.

      2. Another problem is that selective prosecutions inevitably raise the suspicion that provocateurs are being protected.

        1. And gag orders prevent those who are being selectively prosecuted from bringing that to the public’s attention — which (even if they aren’t being protected) will be speculated upon by third parties.

          IMHO, the whole thing is stupid from Biden’s point of view, the smart thing for him to do would be to pardon them all, pardon Trump, end the impeachment (and make a deal with New York to end the state prosecution) — and use that goodwill to run through his leftist agenda that will truly destroy the country.

          It won’t happen, the left lacks the humility to win gracefully, and the FBI isn’t bright enough to realize that they went into this with some major PR problems — both sides think that they can simply cover this thing up, and that worked ever so well for Nixon, didn’t it?

          1. “both sides think that they can simply cover this thing up, and that worked ever so well for Nixon, didn’t it?”

            Worked out fine for Mark Felt FBI insider careerist angling for the top job. He didn’t get the promotion but also wasn’t outed for his, dare I say it, sedition?

            Wasn’t a stellar moment for the CIA but anyone who suspects the CIA of wrongdoing these days is, well, an conspiracist, right?

            And let’s face it, so what if John Dean was getting some good luvin’ from an DNC call girl? That’s nobody’s business except, perhaps Mark Felt or some similarly situated government decider. Because, we can all trust the FBI (cue hand over heart).

            Thanks for bringing up Watergate.

          2. The smart thing to do? Biden? Joe Biden, the president? How did the two phrases “the smart thing” and “Joe Biden” ever end up in the same paragraph?

            And someone explain to me what the Democrats are doing with this impeachment? There is no underlying criminal case; if they convict him, they remove a thorn from the side of the GOP. If they just let Trump alone, he would MAGA around and help them another two or three rounds of elections.

            1. The GOP has no future without Trump or an Trump.2. There’s only so far you can go as an donor front. Trump or Trumpism is sticking around.

              1. I don’t think so; Trump isn’t a cause, he’s an effect. If the Republican base were remotely happy with the party leadership, Trump would have gone nowhere, and it isn’t a matter of “Trumpism”. If anything, Trump was a lousy leader for the rebellion against that leadership, he was just the only one available, because the establishment had gotten so good at blocking anybody from outside their ranks from getting the nomination that it took a billionaire with an established media presence to get past their gatekeeping.

                The but public aren’t, having seen that getting past the gate IS possible, going to give up. That doesn’t mean the next guy will look like Trump, except in terms of not being a GOP establishment figure.

                1. I don’t necessarily disagree but I believe what we are seeing is larger than just leadership. We are seeing a sea change against donor controlled politics. Maybe even a reaction against the very notion of a billionaire class. I don’t necessarily expect an cap on total wealth but wouldn’t be surprised to see some such concept advance.

                  Large segments of the population, with the Rs taking the lead, have concluded that too much wealth in the hands of some lunatic or weirdo, Martine Rothblatt being an example, is a very dangerous thing for the society as an whole. Letting them continue to have their own political parties that they control entirely is no longer acceptable.

                2. “If the Republican base were remotely happy with the party leadership, Trump would have gone nowhere”

                  If the Republican base had functioning BS detectors with regard to Republicans, Trump would have gone nowhere.

                  In the runup to the 2016 election, they let literally everybody else running have a turn as the front-runner, and rejected all of them.
                  This is because they want mutually-exclusive things (like lower taxes and more services) and don’t like candidates that pick one of the two mutually-exclusive things over the other.

            2. “The smart thing to do? Biden? Joe Biden, the president? How did the two phrases “the smart thing” and “Joe Biden” ever end up in the same paragraph?”

              Because he was (and still is) smarter than the guy he ran against.

            3. ” If they just let Trump alone, he would MAGA around and help them another two or three rounds of elections.”

              they made the mistake of assuming people would see through his piles of bullshit back in 2016, and don’t want a repeat.

        2. “Another problem is that selective prosecutions inevitably raise the suspicion that provocateurs are being protected.”

          Another problem is that conspiracy theorists can ALWAYS find a new conspiracy to theorize about.

          1. And nothing makes conspiracy theorizing easier than acting like a conspiracy would act.

            1. Brett,

              Based on your history, you will always interpret things you don’t like as being part of a conspiracy. Always. No matter what.

              You regularly claim that RW misconduct was a “false flag” operation. You even trotted it out about the Capitol riot, on no basis whatsoever, though I notice you’ve abandoned it.

              IOW, trying to run things to avoid your accusations of conspiracies is not just foolish, it won’t work.

              1. And based on your history, you will always reflexively and sneeringly declare something to be incapable of being a conspiracy on day 1, with little to no information available.

                Yay, priors.

                1. Apply Occam’s Razor.

                  1. Ironically, the more resistant people become to conspiracy theories, the safer it becomes to actually engage in conspiracy…

                    I suppose there’s a sweet spot somewhere between utter paranoia and absolute rejection of the possibility.

                    1. “I suppose there’s a sweet spot somewhere between utter paranoia and absolute rejection of the possibility.”

                      You didn’t hit it. You never met a conspiracy theory you couldn’t get behind.

                  2. Apply Occam’s Razor.

                    Oh, sweet — apparently we get all sorts of cool things back in our lives post-inauguration.

                    I suppose the next thing you’ll tell me is “correlation does not imply causation” will suddenly get to make a reappearance after its 1-year hiatus….

                    1. Perhaps you are confusing me with somebody else. Or perhaps whatever put you in a year-long coma had some other effects on your cognitive functions.

                      Either way, what the fuck are you mumbling about?

                    2. Perhaps you are confusing me with somebody else.

                      Just someone who has been paying even vague attention over the past year, doesn’t play dumb, and/or isn’t actually dumb.

                      My fault across the board.

              2. The vehement attacks on anyone who questions the election or the riot, through disingenuous means like gaslighting, censorship, and demonizing, indicates that there really is something to hide.

                1. This is how conspiracy theories work. If you agree with me about the conspiracy, that’s evidence that the conspiracy is true. If you disagree with me about the conspiracy, that’s evidence that you’re in on the conspiracy, which means it’s true. And so conspiracy theories are not falsifiable.

            2. “And nothing makes conspiracy theorizing easier than acting like a conspiracy would act.”

              While the utter stupidity I see in government never ceases to amaze me, you gotta wonder what part of this people don’t understand, assuming that it isn’t a conspiracy…..

              1. Maybe you recall when the Clintons arranged to “find” the Rose law firm billing records a couple days after the statute of limitations expired, instead of just burning them. Thus demonstrating that they could have complied with the subpoena at any time?

                Getting away with it is nice, but doesn’t match the thrill of having your enemies know you got away with it, and can’t do anything about it.

                  1. Brett’s opponents do not only what he wants them to do, but also what he wants to do himself. Brett gets the world he wants.

              2. “While the utter stupidity I see”

                For some reason, you can’t see the utter stupidity that someone keeps posting in your name. How deep does that conspiracy run?

      3. “I also don’t understand the claim that they can try them any place other than DC. ”

        Turns out the United States government can prosecute criminals anywhere in the United States.

        1. Nope.

          The Sixth Amendment provides:

          In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law . . .

          So a criminal defendant cannot just be tried anywhere.

          (In this particular case, the govt. may allege that the crime commenced in Kentucky, where they began their conspiracy.)

          1. Yup, they would and then they would have to prove the defendants actually conspired in Kentucky. They would have to prove that beyond a reasonable doubt. If they cannot, it invalidates the whole case.

            1. They had these guys under surveillance for weeks prior to their attack. They could likely have swooped in and picked them up on some charge or other well before the 6th.

              Proving where they conspired won’t be the problem. Explaining why they let them go ahead with the attack will be.

              1. For all we know, the FBI may have actually plotted and organized the whole thing themselves in some sort of sting-gone-wrong scenario.

                It’s generally accepted that the FBI did this in the 1960s, agents provocateurs, the COINTELPRO program and the rest. I’ll grant noble intent on the part of the FBI — the most dangerous person is one whose motives are good but who fails to realize that the ends do not justify the means being employed to reach them.

                What amazes me still is that there were no guns (that we know of), that the perps didn’t shoot anyone, and that all of this happened without either. I still want to know why that Capitol Hill police officer committed suicide…

                1. I believe one or two of the protesters were caught with concealed carry arms, perhaps having forgotten that the fedgov doesn’t trust armed citizens in DC. And at least one of the actual rioters had a van full of firearms and incendiaries stashed just outside DC.

                  1. Plus the pipe bombs, Brett.

                    1. Well, yeah, his comment was specific to guns, I thought. I’ve mentioned the pipe bombs myself on occasion.

                      I gather the plan was to use the explosions and the crowd they’d drawn in as a distraction while they kidnapped some Senators. But it’s clear there was a violent group operating there, as well as the boisterous tourist/protesters.

                      It’s also pretty clear the FBI knew about them in advance. Though how much they knew in advance is yet to be established.

                    2. There’s enough interviews out now with those in the capitol (police and staff), that it’s hard to argue that there weren’t a lot of dangerous people out there out for Congressional blood.

                      And plenty of guns.

                      https://www.wnycstudios.org/podcasts/radiolab/articles/post-reports-four-hours-insurrection

                    3. “. But it’s clear there was a violent group operating there, as well as the boisterous tourist/protesters.”

                      Doesn’t help your cause that the “boisterous tourist/protesters” filmed themselves, and referred to themselves as “revolutionaries” in recordings.

              2. “Proving where they conspired won’t be the problem.”

                The thing is, it’s just talk and not a conspiracy until someone actually carries out an act in furtherance of the conspiracy. THEN you can arrest everybody.

          2. “Nope.”

            Yep.

            “So a criminal defendant cannot just be tried anywhere.”

            I didn’t claim anywhere. I claimed anywhere in the United States, which is still true.

            1. “of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law”

              So, is it your claim that in this case the “district” in question comprises the entire US? Because it sure reads as though “district” operates to further qualify “state”, not to supersede it.

              1. “So, is it your claim that in this case the “district” in question comprises the entire US?”

                No, that seems to be YOUR claim. Those are words that YOU wrote.

            2. No, it’s not true, even if you limited it to anywhwere in the U.S.

              Do you seriously think the protestors could be prosecuted in Alaska? Or even a territory like Guam? Did you even bother reading the Sixth Amendment that I quoted?

              You made a very broad statement: “Turns out the United States government can prosecute criminals anywhere in the United States.”

              That is simply not true for “criminals” generally.

      4. “Making martyrs out of these people is STUPID — it will destroy the legitimacy of the Biden administration.”

        You’re joking, right?

        It won’t make martyrs of these people and it was impossible to legitimize the Biden Administration the moment the DNC staff turned themselves into anti-Bernie agitators.

      5. ” Andrew Lelling, a normally level-headed USA, claimed that he would prosecute MA residents who went down there and I don’t see how he can. Even if they conspired in MA to go down there, the Federal offense would involve crossing a state line and hence wasn’t committed until they were in CT or RI, having crossed the state line. ”

        I’m sure this will come as a shock, but you don’t know what you are talking about. It’s absolutely possible to engage in a conspiracy without leaving your home state. The way it works is, if anyone in the conspiracy does something to further the aims of the conspiracy, all the conspirators are liable, even if all they did was mutter in their basement(s).

    2. I think (1) the rule ought to be more speech protective than it is and (2) these restrictions are overbroad under the current rule.

      And barring a BLM arrestee from speaking at all about any police officer is a very good example of why caution and judicial scrutiny are required in this area, actually.

    3. “this is something that Putin would do.”

      Nah. Having someone poisoned with Polonium is something Putin would do.

      1. Or shot within eyesight of the Kremlin. Turns out Putin is pretty flexible about how to murder his political rivals and critics.

      2. Considering that the Federal government killed an unarmed protester while Putin at least has the temerity to do his killing with a veneer of deniability.

        1. She deserved to die.

          That’s what happens when you breach the Capitol during a riot, and ignore the fact that police have weapons drawn past a barricaded doorway and you decide that you’re going to just climb in through the window towards them and those whom they are defending anyway.

          Fuck her, and fuck people like you who pretend she’s innocent.

          1. Good work. Now do Anthony Huber and Joseph Rosenbaum

          2. What about all the people who raided the senate during the Kavanaugh confirmation?
            Or the ones who burned down DC in May?
            What about the people who launched assaults on the Whitehouse in June and August?
            How about the ones that spent a week firing rockets into a federal courthouse every night?

            Can we line them all up and shoot them too?

            1. No, I tend to agree with him on this: If you face a window with a cop on the other side pointing a gun at you and telling you to stop, and you try climbing through the window, expect to get shot.

              1. True, but unless the cop reasonably believed that the use of deadly force was necessary to prevent you from causing death or serious bodily harm, your estate should be able to collect a tidy amount of damages from the cop (which usually means from his or her employer).

                1. This happened in the context of a riot, and the cop was tasked with protecting the Senators. Leonidas can’t let just one Persian through because he thinks they look fairly harmless.

          3. She’s no more innocent than George Floyd — if he’d quietly gotten into the police cruiser, none of the rest would have happened.

        2. Sure. Because Novichok is cheap and plentiful. Lots of people might have had a grudge with Navalny and access to Russian military nerve gas.

      3. More like something the British would do.

        Tommy Robinson imprisoned in 2018 for reporting the names of defendants in rape trial involving Muslim rape gangs. Charge was disturbing the peace.

        https://www.americanthinker.com/articles/2018/06/tommy_robinson_disappears_free_speech_in_england_is_dead.html

        1. Peace is important to bien-pensant gentry liberals. Little plebian girls are not.

      4. JP

        You must not be following much going on in Russia right now, nor the last few years. He’s had multiple politically outspoken opponents arrested. Charging them with what everyone there and most folks over here knows are BS charges.

        Sure he is fully capable of more I won’t argue that. But there is absolutely a history of political (selective) prosecution.

    4. Its especially hilarious that leftwing riots are still going on right now like in Portland and nobody including Ilya gives a s^&T. This is beyond parody.

      1. Here’s why rioters say they’re gathering in Portland

        “Still, rioters wearing all black clothing and gas masks took to the streets Thursday in Portland, where social justice demonstrations have endured for months. Rioters there a day earlier had vandalized the state Democratic Party headquarters and a federal US Immigration and Customs Enforcement, or ICE, building, police said, and four people have been charged in connection with those events.”

        I’ve said this before: Riots are kind of like forest fires: They’re easy to start, but not so easy to stop.

        Especially since last summer’s riots involved so much organized looting, that who knows how deep the pockets of the organizers are now?

        1. Interesting that, now that Biden is in charge, these are riots, not peaceful protests.

          1. Well, they’re targeting Democratic party headquarters and Biden’s federal government, after all. It’s all about whose ox is gored, and now it’s THEIR ox.

            1. So now they’re your allies, and you suddenly have no objections to their tactics.

              1. The projection runs deep in this one.

                Who said they support these BLM and Antifa rioters now, when they opposed them earlier?

                1. Who let the dogs out?
                  Who? Who? Who? Who?

                  1. If that was an attempt to be witty, it got your usual half-way.

                    I do notice you can’t answer the question, though.

    5. I’ve long felt that the election was rigged

      Facts don’t care about your feelings.

      1. Even the precedent of half the country thinking the election was stolen, is bad.
        If someone thinks it wasn’t stolen, they should be eager to set this to rest.

        1. “Even the precedent of half the country thinking the election was stolen, is bad.”

          Agreed that half the country being irrational is bad.

          “If someone thinks it wasn’t stolen, they should be eager to set this to rest.”

          “set this to rest” assumes that there is some degree of objective evidence that conspiracy theorists will find sufficient. If that assumption is true, the level has not yet been found.

      2. Of course it is beyond the capacity of the current system to prove electoral cleanliness any more than it can establish electoral fraud absent the presence of an informer in the latter case.

        To the comment above “I’ve long felt that the election was rigged.” Election purity is like college basketball. You can notice that the Mob bet and won on an improbable spread and that the game’s underperforming player surviving on a scholarship has a brand new car sitting in the dorm parking lot. But that doesn’t prove fraud unless you took extraordinary steps ahead of time to monitor the player. The same dynamic is in play with elections. The appearance of winning is all that matters. If you open up avenues for fraud you shouldn’t expect there to be back end processes for post hoc remediation and correction. The system doesn’t work that way.

        1. This isn’t even remotely true. Any common means of fraud would be readily detectible.

          And while it’s possible to construct a hypothetical in which there’s undetectable fraud — it’s possible to construct hypotheticals in which someone commits the perfect crime for any crime — it’s impossible to do so without the involvement of so many people as to make the conspiracy implausible.

          1. Oh, come on. Sure, common means of fraud ARE readily detectable, unless you do something crazy like kicking out the election observers, counting on a judge to buy a bullshit story about how they all, and the press, too, inexplicably thought the counting was over when you took a quick break.

            Or permit people to do ballot harvesting.

            Or send ballots out helter-skelter to everybody on a registration list you know hasn’t been purged recently, and then don’t check the signatures for anything except being present.

            And it’s not like fraud is the only way to illegally influence an election. You could institute different ballot cure rules in different precincts. Or violate the law in a half dozen different ways that would predictably advantage one party.

            And, sure, all these things require a fair number of participants, and can be seen happening, but “seen happening” and “courts actually care” are obviously two different things.

            Personally? I think there were a lot of ‘shenanigans’, but am willing to believe Trump legitimately lost. (For a relatively low, but maybe meaningful value of “legitimately”.) But I can understand the people who think that he was robbed, and am just stonkered by how little interest the establishment have in even lifting a finger to convince them otherwise.

            This IS how you’d expect them to behave if they did steal the election, and don’t mind people knowing it.

            1. Anyone born in the 1800s would have to be at least 120 years old, and the oldest person alive today is only 118 years old, so you KNOW that these voters are dead.

              You don’t know how many born in the 1900s are also dead, but you KNOW that everyone born in the 1800s is, and when they vote….

              1. Old people tend towards Republicans, at least the white ones do.

            2. “…unless you do something crazy like kicking out the election observers, counting on a judge to buy a bullshit story about how they all, and the press, too, inexplicably thought the counting was over when you took a quick break.”

              That’s DMN’s point. In addition to requiring too many people being in on it, your conspiracy theory requires that the conspirators also had clairvoyance.

              1. But your denial requires that we ignore multiple witnesses. Remember, in Philly, both the observers AND the press agreed that they’d been told counting was over for the night. The judge just blew off their testimony.

                Conspiracies become much easier to conduct if they don’t actually have to be hidden because any witnesses will just be ignored.

                Like I said, I think Trump probably legitimately lost, for a deplorably low value of “legitimately”, but there’s no lack of reason for anybody to think otherwise.

                1. “But your denial requires that we ignore multiple witnesses.”

                  No it does not. It requires you to take what they say at face value, which is that they witnessed things they didn’t know were fraud, but thought was fraud.

                  “The judge just blew off their testimony.”

                  Which judge? There’s been dozens of lawsuits that failed so for me to evaluate this claim you need to be more specific. Can you confirm that you are talking about Judge Matthew Brann. If not, let me know which judge you are talking about.

                  1. I thought I was being quite specific, that this was about that counting location in Philly where they tricked the election observers and press into leaving, and then resumed counting without witnesses.

                    Both the observers AND press were adamant that they’d been told counting was over for the night, come back in the morning. The judge blew that off, and went with the election officials’ claim that it was just a mistake on their part.

                    1. So be more specific, are you talking about Matthew Brann, or not? Which “judge blew that off” in your view?

                    2. “Which ‘judge blew that off’ in your view?”

                      The Obama one, obviously.

              2. ” In addition to requiring too many people being in on it, your conspiracy theory requires that the conspirators also had clairvoyance.”

                But the only other possible explanation for so many states to have gone for Biden would be that voters didn’t want any more Trump stink about the White House, so the conspiracy theory MUST be true.

                1. Actually, I think that IS what happened: The media succeeded in demonizing Trump to the point where a record number of people showed up, not to vote in Biden, but vote out Trump.

                  That doesn’t mean there wasn’t underhanded stuff going on in parallel, just that it was gratuitous. Not that they’d have been sure of that in advance.

                  1. ” The media succeeded in demonizing Trump to the point where a record number of people showed up, not to vote in Biden, but vote out Trump.”

                    they did that by accurately reporting things Trump did and said, the bastards, and that totally sunk him.

                    “That doesn’t mean there wasn’t underhanded stuff going on in parallel, just that it was gratuitous.”

                    Run by Trump stooges, and thus ineptly and ineffectively. See, e.g., Rudy’s laptop.

            3. “And it’s not like fraud is the only way to illegally influence an election.”

              You could just disenfranchise whole groups of people who you suspect might not vote for your choices. But Republicans don’t even try to hide it when they do this, so it must not be illegal.

            4. ” I can understand the people who think that he was robbed, and am just stonkered by how little interest the establishment have in even lifting a finger to convince them otherwise.”

              Objective evidence isn’t conclusive for conspiracy theorists. So, no, there’s no rush to throw that kind of evidence at that kind of doubters.

            5. Oh, come on. Sure, common means of fraud ARE readily detectable, unless you do something crazy like kicking out the election observers, counting on a judge to buy a bullshit story about how they all, and the press, too, inexplicably thought the counting was over when you took a quick break.

              Setting aside whether you have accurately described the incident to which you refer (hint: no), you still haven’t identified fraud. After this scheme is undertaken, you still have to do something to actually commit fraud. What’s your plan that is undetectable at that point?

              Or send ballots out helter-skelter to everybody on a registration list you know hasn’t been purged recently, and then don’t check the signatures for anything except being present.

              Same question here. What exactly is the plan? You’ve sent out a large number of ballots, a relatively small number of which are going to people who moved/died. And? Most of those will be returned; most that aren’t will be discarded. What are the fraudsters supposed to do? (And this, of course, is detectible, since we have a list of who voted and can see whether they are dead or gone.)

              And it’s not like fraud is the only way to illegally influence an election. You could institute different ballot cure rules in different precincts. Or violate the law in a half dozen different ways that would predictably advantage one party.

              No sale, Brett. Even if you hadn’t been repeatedly told you didn’t understand the law, counting eligible voters’ votes is just not even the same discussion as fraud.

          2. This isn’t even remotely true. Any common means of fraud would be readily detectible.

            Not true. Unrestricted mail-in voting makes election fraud ridiculously easy and difficult to detect. While it is true that fraud by ballot stuffing can be detected forensically by comparing poll book data with the vote tally that analysis is frustrated by many counties (the same ones year after year) failing to produce the poll book data, or when they do failing to reconcile the data with the tally.

            That universal mail-in voting helps Democrats win elections seems to be true and explains why Democrats will continue to insist that it is absolutely safe and secure. It isn’t, it never will be and the truth is that they know it.

            1. “That universal mail-in voting helps Democrats win elections seems to be true…”

              Universal mail-in voting increases turnout.

              1. Increasing turnout increases likelihood that marginalized voices get heard. Republicans oppose this, which is why increased turnout doesn’t help them win elections.

              2. At the expense of security from fraud, yes. I’m fine with increased turnout as long as those who turn out are legal voters, and as long as they haven’t had their vote coerced.

                1. “At the expense of security from fraud, yes.”

                  It’s a bummer that your exercise of fraud wasn’t sufficient to turn the election. But you can always try again next time.

            2. The idea that more turnout is good for Dems is being challenged now by the 2020 down ballot results, and may not hold true for much longer.

              And I’m fine with that – increased participation is an inherent good and if it means my party has got some challenges coming, so be it.

            3. That universal mail-in voting helps Democrats win elections seems to be true

              Weird that very red Utah adopted this, then. And weird that Pennsylvania Republicans overwhelmingly supported no-excuse VBM in 2019.

          3. Here’s an homework assignment:

            Washington state gubernatorial race 2004. State’s biggest county, 70/30 favoring Ds, has ~1300 ballots counted more than verified voters. Though D candidate in a hole after first count ends up barely ahead after hand recount. After Election Day bags full of ballots ‘discovered’ in basement of polling location church in county’s heaviest D batch of precincts. They are counted. Approximately same number of ballots exceeding verified voters is found missing from invalid ballot security cage. They even have reports from election worker that staff grabbed ballots from invalid stream and voted them though worker fails to repeat claim on stand after being put on administrative leave.

            Why was Republican challenge based on the unverified counted votes futile?

            Got a guess? And the answer isn’t that election systems are secure.

            1. 30 seconds on Google shows you’re full of it:

              Logan announced on December 13 that 561 absentee ballots in the county had been wrongly rejected due to an administrative error.
              The next day, workers retrieving voting machines from precinct storage found an additional 12 ballots, bringing the total to 572 newly discovered ballots. Logan admitted the lost ballots were an oversight on the part of his department, and insisted that the found ballots be counted. On December 15, the King County Canvassing Board voted 2-1 in favor of counting the discovered ballots.

              1. No. That was just one news day. This process ran on for months and encompassed many moving parts. Do your homework.

              2. Here you go, from a report to the court in support of the elected Governor, outlining the issues:

                “ The 2004 Washington gubernatorial election was extraordinarily close, with Democratic candidate Christine Gregoire narrowly defeating Republican Dino Rossi by 129 votes in the final manual recount, out of 2,810,058 votes cast (0.005 percent).1 The petitioners argue that the outcome of the election would have been different if 1,183 ballots which they allege to be invalid were not counted. Petitioners claim the invalid ballots consist of those cast by disenfranchised felons, the deceased, people who voted in multiple states or precincts, non-citizens, and people casting invalid provisional ballots.”

                Have fun reading. Note, the argument isn’t that invalid ballots were counted.

                https://faculty.washington.edu/cadolph/papers/AdolphWAreport.pdf

              3. By the way, please note that the court did not concur with King County regarding the status of the votes counted in King County. And I understated the number of illegally cast votes. Apologies.

                “Following a two-week trial, Judge Bridges rules that at least 1,678 ballots were cast illegally, but that Republicans have not proved that Gregoire’s victory margin was based on illegal votes or that fraud played a role in the result. Within hours of the sweeping ruling, Rossi announces that he will not appeal, surprising observers and ending the contest.“

                https://www.historylink.org/File/7405

                1. I hope the geniuses who think voting practices are per se secure can grasp the significance of the 2004 case: even if you have well over the margin of winning votes cast illegally you still lose because the first to crate the appearance of winning wins!

                2. ” Republicans have not proved that Gregoire’s victory margin was based on illegal votes or that fraud played a role in the result.”

                  From your own quoted text

          4. By the way Mr Nieporent,

            Ever participate in or witness a mass challenge of voter registrations? It is quite an eye-opening affair. I sat through hours of proceedings in my state initiated by an activist who cross referenced industrial parks, commercial addresses, marinas and vacant lots and the registered voter lists. It might surprise you to learn that of the voters who appeared to defend their registrations many if not most seemed to have once been clearly residents of the state but they had moved away years ago to another state with comparatively unfavorable tax laws for people of their means. Many had maintained an large boat or an agent’s office in the state where they claimed to reside even though their permanent homes were elsewhere.

            Many chose not to defend their registrations.

            What is important to note is that this cleansing of the roles required the intervention of private citizens. The counties, on their own, were doing nothing.

            1. “The counties, on their own, were doing nothing.”

              You object to the fact that counties weren’t trying to disenfranchise anybody, which is why your opinion is rejected as unAmerican. Go back home to wherever you came from if you don’t like it here.

  2. If I’m reading this right, they can’t even discuss the case with anybody aside from, I assume, their legal counsel?

    That seems a bit dicey, in as much as the government can continue to talk them down publicly. That’s a ridiculous asymmetry.

    1. I don’t see an exemption for counsel.

      There may be a presumption of an exemption, that the last ten words of the Sixth amendment actually still apply to what *is* a criminal prosecution, but it doesn’t say that.

      Now I’m not about to join the tin foil hat brigade, not yet, but this does look like it (at best) wasn’t really thought out that well. Or perhaps it was — and *that* is a very scary possibility….

      1. “I don’t see an exemption for counsel. ”

        It’s in the Sixth Amendment.

        1. *I* would have made a point of explicitly including it, if for no other reason than I don’t want the case thrown out on a technicality….

          YMMV……………

          1. You would have included a wild rant on unrelated legal issues, because that’s what you do.

            YMDV.

      2. “Now I’m not about to join the tin foil hat brigade, not yet. . .”
        Stunning.

        1. Technically true. Since he already has joined the group of conspiracy nuts, his comment that he has no intention of joining them in the future is correct. “I will never attend the UCLA Law School!” is technically correct for me. Same clever linguistic massage. It’s why you need to ask follow-up questions in a deposition or in court. (“I’ve never raped a single woman.” You need to ask, “Well, have you raped more than one woman?” Or, “Have you raped a married woman?”)

          It is noteworthy that Dr Ed’s comment immediately raised the eyebrows of everyone else, and we immediately suspected verbal shenanigans. 🙂

  3. Funny timing on this post – Kyle Rittenhouse just had some similar restrictions placed on him after he was seen in the same bar as “alleged Proud Boys”. Even thought the prosecutor and judge admitted that he had not broken the terms of his bail, they still demanded additional restrictions.

    Exactly how is this allowed?

    1. Seems to me that they want to silence people — and that is a scary thing.

      Also stupid because I’d rather hear what they are saying and know where they are and what they are planning to do — than not.

    2. Fuck You That’s Why (or in this case how).

      1. To be ratified next year. Replaces the first amendment.

    3. ” Even thought the prosecutor and judge admitted that he had not broken the terms of his bail, they still demanded additional restrictions.

      Exactly how is this allowed?”

      Don’t murder people in the street and you don’t have to worry about it.

  4. Just copy New York’s proposed legislation, and determine that if the President believes anyone is a Covid transmission risk, they can be confined until the government decides they’re not a risk.

    https://www.nysenate.gov/legislation/bills/2021/a416

    1. Current state quarantine laws, and epidemiology from the 14th Century, and small natural experiments support the confinement of the infected for 10 days. Nothing supports the confinement of the non-infected, not even the horrific spreads of death and disease in the most locked down jurisdictions.

    2. “Just copy New York’s proposed legislation, and determine that if the President believes anyone is a Covid transmission risk”

      Under what source of federal authority?

  5. Can the lawyer of the defendants criticize the government and engage in protest activity at federal facilities? The lawyer could do that more smoothly, perhaps, more persuasively.

    One advantage is that such an order reveals the judge to be an agent of the Deep State. If the judge fails to recuse, that should be a reversible error. A judge who is a member of the KKK is not fit to judge a black defendant. I suggest total eDiscovery on all the devices of the judge to search for bias. Refer any embedded child porn to the FBI. No one has ever done that. I want to.

    1. “No one has ever done that. I want to.”

      Your interest in searching for child porn is noted.

      1. Well that was certainly fucking cheap.

        1. Your support for the person interested in looking for child porn is also noted.

  6. “you can’t be deprived of liberty at all until you’ve been found guilty beyond a reasonable doubt, whether by being locked up or by being subjected to pretrial release conditions”

    is that what you meant, it seems to me that if the rule is about being convicted, then pre-trial is before conviction unless your are saying bail should be eliminated altogether which some criminal justice advocates have said, except fo some classes of like alleged white collar criminals, domestic abusers, and certain other political classifications.

    1. “don’t commit crimes while you’re on bail” doesn’t infringe any rights, because you didn’t have any rights to commit crimes before you were on bail, either.

  7. On another subject, or a different prong of the same subject the NYPost is reporting:
    “Paul claimed Roberts has “privately said he’s not supposed to come unless it’s an impeachment of the president.”

    That confirms my prediction that Roberts would not preside.

    1. Kamala Harris, the likely 2024 Dem nominee presiding is EXACTLY why the Constitution specified the CJ does. The optics on that will get NASTY — and if this is a true plot to silence people, while silencing a thousand Antafa folk *would* work, it won’t here because the right doesn’t have a rigid hierarchical structure.

      And if it isn’t “an impeachment of the president” then what the hell IS it?

      1. I have been questioning myself a lot about my initial impulse to support pardons. I would prefer to have commuted into community service all sentences of those not convicted for using violence against persons. There must be a clear message that their behavior was a transgression. Society through its chief magistrate would signal OTH that it is willing to forgive. With people committing grave violence, I wouldn’t be so forgiving. Let’s wait a couple of years before thinking about pardoning them.
        As regards the former president, in my understanding, he already has been impeached (a second time), that is, he has been “indicted.” While there is no doubt that he acted irresponsibly, if not maliciously, I am not convinced that in a legal sense, he is guilty nor that he is innocent. So, let’s see the arguments in the Senate trial. The outcome might be a disappointment ─ but maybe not; at least one would have the opportunity to judge for oneself.

        1. What happens in the Senate will have all the characteristics of what used to be called a “show trial,” that is, all the trappings but all minds made up in advance.

          I’d prefer a real prosecution before an Article III court with a real jury.

          1. And Trumps’ supporters will scream “show trial.”

            There are real consequences to that…

            there

            1. “There are real consequences to that…”

              to the extent that people choose to pretend to care.

          2. What, disparaging the good name of the sovereign, Nancy Pelosi? Encouraging others to petition the government in person? Intentionally disrupting an CSPAN broadcast? Making vexatious utterances? Or might it constitute some sort of Personnel violation: intentionally annoying the Woke?

      2. Ed, answer me one question: is Trump “the President of the United States”, or is he just one of almost a half a dozen former presidents?

        If you think he is still THE President, then there is no argument I can make to convince you. But clearly a former president is no longer “the President of the United States”.

        Who cares if Kamala presides, let them have their little farce.

        1. The latter, of course.

          But Kamala doesn’t have to preside if Roberts won’t. She is constitutionally entitled to preside over the Senate except when a President is being tried, but she isn’t obligated to.

          It would be a smart move for her to recuse from this, because there’s no way anybody on the right would view her as not having a severe bias.

          1. Can’t have the same party, or the opposing party either presiding over an impeachment trial in the senate without there being large swaths of the citizenry viewing a severe bias.

          2. “It would be a smart move for her to recuse from this, because there’s no way anybody on the right would view her as not having a severe bias.”

            If she isn’t there, the D’s don’t have a majority. Your interest in the topic isn’t exactly unbiased, nor are you convincing anyone that it is.

            1. The Democrats don’t have a clear majority in any case, she doesn’t have a vote except to break ties, and she doesn’t have to be presiding to do that.

              1. She can’t break any ties if she isn’t there.

        2. Kazinski, answer this question: If the constitution says “A” when “the President” is impeached, and “B” when “lesser officials” are impeached, notwithstanding the fact that Trump is neither, which is the Senate alleging Trump to be?

          It’s the Senate, not I, who is alleging Trump to be “the President of the United States.” And for them to then turn around and say he is not entitled to the protections “the President” enjoys is kettle pleading…

          Furthermore, presiding over this is grounds for Kamala Harris to be impeached in 2023…

          1. “Furthermore, presiding over this is grounds for Kamala Harris to be impeached in 2023”

            You’re convinced, now you just have to convince at least half the House. good luck with that.

          2. Well now we know it’s neither Roberts or Harris, it’s Leahy to preside. I’m quite glad Roberts is not presiding because it lets slot of the air out of the balloon.

            I’ll also note Elizabeth Warren seems quite upset: “That is his constitutional duty. I can’t imagine why a Supreme Court justice would not do his duty,” but Blumenthal must be a better lawyer than Warren, because while he wants Roberts to preside, he concedes he has no duty to do so:
            “But Blumenthal acknowledged Roberts “is not required by law to do it.”

        3. “If you think he is still THE President”

          In the Senate Trial, he’ll be THE President being tried. As in, the only one.

          1. Heh. Humor isn’t always apparent on the internet, but it’s such an absurd argument it has to be in jest. Well done.

            1. Considering how many people seem to think that Donnie is still President because he WON the election by a LANDSLIDE, this seems like a bit of fluff.

      3. “The optics on that will get NASTY”

        Of course, the Trump supporters are already quite NASTY towards the new VP, almost as NASTY as they turned towards the last one…

    2. ““Paul claimed Roberts has “privately said…”

      That confirms precisely nothing.

      1. Yeah it could be a trial balloon by Roberts to see what the reaction is.

        But from what I have observed from Roberts personality is he is not going to volunteer to do something he has no legal or moral obligation to do, especially an almost entirely moot trial, that has no interesting legal questions to be resolved and will end with an aquittal anyway.

        1. I could be a straight up lie by the person claiming Roberts said something in private.

          1. Rand Paul strikes me as more of a stand up guy than your average Senator, but I’ll grant that, given that your average Senator is pretty bad, that doesn’t prove a lot.

            1. So your opinion is dispositive, then? That’s a lot of responsibility to carry around with you 24/7.

              1. I’m looking around for someone to pass the mantle to, since I’m retiring soon. Why, are you applying?

                My opinion might not be dispositive, but I’m still entitled to have one, at least for a little while longer.

                1. “My opinion might not be dispositive, but I’m still entitled to have one, at least for a little while longer.”

                  If you insist only having stupid, partisan opinions, you can keep them.

                2. Do you flatter yourself that your opinion will soon be illegal, Brett?

                  1. It’s already irrelevant and immaterial.

              2. Well I’m glad we can quit arguing about whether Paul was lying or not, because it’s been confirmed, and we can go back to arguing over topics that will likely never be completely settled.

      2. It confirms that someone out there wants us to believe there’s one adult in the room as far as the impeachment farce is concerned.

    3. “That confirms my prediction that Roberts would not preside.”

      what it actually confirms is that somebody said that Roberts will not preside.

      Your prediction is confirmed when either A) the trial occurs with someone else presiding, or B) the trial is cancelled. Neither A nor B is true, so your prediction is not confirmed.

      1. Well then, I will await your applause when I do my final victory dance.

        1. You can celebrate all the applause you already got, because the total will not increase.

          1. Self congratulation is always the most gratifying because you know it’s sincere and heartfelt.

  8. And then there is this: https://www.khou.com/article/news/national/us-capitol-police-officer-dies-stroke-riots/285-0d4f3e9c-63be-4f5b-a8f8-208dbd33a85f

    Head injuries *can* cause a stroke as ruptured blood vessels clot, but other things can too. The republic is not well served by censorship in this situation — like with George Floyd, the family ought to release the results of the autopsy.

    1. If any charges are filed over his death the autopsy results will be released.

  9. The prohibition on going onto government property is like a sign reading “this door must remain closed at all times.” You mean I’m not allowed to use the door even if there’s a fire? No, that’s not what you mean. Say what you really mean. “For emergency use only (alarm will sound).” “Do not prop door open” (alarm will sound after 30 seconds). Etc.

    1. “this door is to remain closed at all times” works just fine for the non-autistic.

      1. Relying on a shared understanding of poorly defined meaning is a bad idea when disagreement puts somebody in jail.

        In my area a few years ago a guy was on probation with a no-drive order. He called the DMV to check whether it was OK to get in his car on his own property. DMV said yes, his license is invalid but that doesn’t affect private property. He went to jail because the order _as interpreted by the judge_ was broader than needed to keep him off the streets.

        Now we somebody who has an order to stay off state property. Kind of like not driving. Does it mean the obvious or does it mean the broadest possibly thing? Near me is a narrow old road called “County Road”. Can this guy drive on it? Maybe not. When county government was dissolved the road became state property. (Maintained by the town at town expense.) You can’t determine that from the state registry of deeds. You have to know that the ownership was implicitly transferred by a particular session law.

        And what if the federal government is renting office space from a private business? Does the order apply? And what if a private business is subleasing from the government? Be clear.

        1. “In my area a few years ago a guy was on probation with a no-drive order. He called the DMV to check whether it was OK to get in his car on his own property. DMV said yes, his license is invalid but that doesn’t affect private property. He went to jail because the order _as interpreted by the judge_ was broader than needed to keep him off the streets.”

          The problem in your example comes from asking DMV to offer an opinion on something in which they have no authority, and then treating their opinion as authoritative.

          1. It’s not immediately obvious that the DMV is the wrong place to go to find out if moving your car from one place on your property to another legally qualifies as “driving”.

            1. It’s immediately obvious that DMV is the wrong place to find out what a specific judge considered to be “driving” in a specific order.

              1. You would automatically assume that the judge has some eccentric personal definition of “driving” that he uses in place of whatever the prevailing legal definition is? Why would that be?

                So, it comes down to the judge being entitled to be unreasonable. Well, I’ll agree that, all things being equal, you should keep in mind that judges can be little tin plated dictators with delusions of Kirkhood. But all things are rarely equal, and how the heck would you expediently find out what a judge’s private definition of “driving” was? Keeping in mind that this guy likely does not have a lawyer on retainer?

                Would not a sensible, reasonable judge have said, “For the record, the DMV’s opinion on this isn’t binding. But you did have a reasonable basis for thinking you weren’t violating probation, so I’ll let you off this one time: Do not enter a car again until your probation is complete, and I don’t care if it is even in working order!

                1. “You would automatically assume that the judge has some eccentric personal definition of “driving” that he uses in place of whatever the prevailing legal definition is? Why would that be?”

                  I would assume that, since the judge is the one who decides when his order has been violated, his is the only opinion on the subject that matters.

                  Never mind your sudden Chevron-style deference to a government agency on what a prevailing legal definition is, The “it’s not driving if you’re on private property” sounds like something some sovereign citizen idiot would claim to try to get out of a driving-without-a-license ticket. “I’m not driving, I’m traveling!”

                2. “Would not a sensible, reasonable judge have said, ‘For the record, the DMV’s opinion on this isn’t binding.'”

                  Maybe. Or maybe “Dammit, I said no driving, and you were driving. Probation revoked!” was sensible and reasonable, in dealing with a represented probationer.

          2. This is why we normally use the “reasonable person” standard. Getting permission from the department that should be over the proper department should at least be an affirmative defense.

            1. ” Getting permission from the department that should be over the proper department should at least be an affirmative defense.”

              You’d have a point if something like that had happened here. DMV does not fit the category of someone who “should be over” a trial court.

              1. But they are the department who is over driving.

                Yes, he should have gotten clarification from the judge himself.
                However, asking the department that is in charge of driving is a reasonable line of thought.

                You end up sending a man to prison for not understanding the organization of the government. There are many cases in which stupidity should send a person to prison, but this is patently absurd.

                1. “However, asking the department that is in charge of driving is a reasonable line of thought.”

                  It’s not very bright, as events apparently went on to show.

                  “You end up sending a man to prison for not understanding the organization of the government. ”

                  this is why the Constitution assures a right to counsel during criminal proceedings.

  10. There was plenty of outrage about this during the summer when “mostly peaceful protesters” were getting saddled with similar restrictions. Funny that the state run media isn’t publishing front page articles about it now, right?

    1. “Federal court to review ‘protest bans’ in Portland arrests

      “U.S. court officials in Oregon are reviewing bans on future protesting that were placed on some people arrested during demonstrations in Portland after some raised concerns that the prohibitions violated the First Amendment…

      ““I can’t believe that they think this is constitutional,” said Aaron Caplan, a professor at Loyola Law School in Los Angeles. “It’s really broad and it’s hitting at something that is constitutionally protected.””

      https://abcnews.go.com/US/wireStory/federal-court-review-protest-bans-portland-arrests-72062756

    2. If you look carefully, there is a link, in this post, to an article from a media company discussing restrictions at the Oregon BLM protests.

      1. And you can read about the capitol hill arrestees’ restrictions at: The Boston Globe, ABC News, etc.

    3. I’m sorry to put it this way, but are you a fucking moron? The post starts with a link too and extensive quotes from, a newspaper story.

      1. “I’m sorry to put it this way, but are you a fucking moron?”

        Don’t ask this question to Jimmy the Dunce. He doesn’t like the answer.

  11. Let them speak.

    Collect the evidence for use at trial and with respect to sentencing.

    No free swings, clingers.

  12. Speaking of protests, here’s a video of Biden shock troops disappearing an American mostly peaceful protestor off the protest line in broad daylight:

    https://twitter.com/redsteeze/status/1353295976941842435?s=20

    Do the leftists on this blog care? No. This was earth-shaking stuff 6-months ago. What changed?

    Answer: nothing changed. They were just pretending before. They have no principles besides what their cult leaders tell them.

    When the cult leaders tell them to murder their neighbors, they’ll probably do it.

    1. “When the cult leaders tell them to murder their neighbors, they’ll probably do it.”

      Can we start with you?

    2. ” here’s a video of Biden shock troops disappearing an American mostly peaceful protestor off the protest line in broad daylight:”

      The kind of “broad daylight” that happens at night, maybe, among other mischaracterizations.

      1. Are you pettifogging deliberately?

        1. Are you stupid on purpose?

  13. Of course, if these conditions are unsatisfactory to the accused, they could always reject the pretrial release.

  14. Did any of the BLM rioters get slapped with such restrictions after having their bailed paid off by Dems?

    Guess some pigs are more equal than others.

      1. Thats just to not attend any more riots er ‘peaceful protests’ They didn’t cut off their communications entirely. Plus the condition was dropped. So whats your point again?

        1. You asked a question assuming that the answer was “no”, and your response to being informed the answer is “yes”, was to pretend that there was no answer.

          Do you have a problem with this summary?

          1. So if I offered you a choice between not attending another protest plus having your internet communications cut of and no restrictions because i dropped them, you’d pick randomly because they are the same thing?

            1. No new goal posts.

              Take the L.

              1. The specific title is about a ban on internet speech which the BLM rioters were not systematically subjected to as far as I can tell. I never said no BLM protester was ever punished in any way. Who is moving goalposts again?

                1. “Who is moving goalposts again?”

                  that would be you.

                  “The specific title is about a ban on internet speech which the BLM rioters were not systematically subjected to as far as I can tell.”

                  This restriction was applied once, which means it isn’t systematically applied to anyone.

    1. Is it really impossible to discuss anything here without this type of partisan bullshit? Any post about anything always devolves into “what about the other side?” So boring.

      1. Because we don’t believe anything any of them say is genuine. They’re all just reciting talking points and they’ll take the exact opposite side the instant the talking points say to.

        1. Just because that’s YOUR playbook, doesn’t mean anyone else is using it.

      2. If the Dems don’t want it to be about politics then they should stop making it about politics and seizing more control politically.

      3. Maybe we can comment on the meta-hypocrisy of accusations of hypocrisy?

        I would suggest holding an accusation of double standards in reserve whenever one side claims a monopoly on defending the eternal verities. Or if they say they’ve always been at war with Eastasia when they haven’t been.

        1. The Dems are using the capitol protests as a chess piece in a political propaganda war to gain more control. The repub-well some republicans are and have every right to defend themselves by bringing in the chess piece of the BLM riots and the hypocrisy of the media.

          You can whine all you want (if you are a hypothetical nonpolitical person) that in an ideal world people should be focused on the incident in isolation but the reality is everybody including the Dems and the Dem posters here care primarily about the political angle.

          1. The Dems are using the capitol protests as a chess piece in a political propaganda war . . .

            And what a chess piece it is! It’s like having an extra queen. Maybe your side shouldn’t have given that one up, what with having only a couple of BLM-demonstration pawns to counter with.

            By the way, are metaphors like elections? Do they have consequences?

            1. Not really, its a pretty weak piece next to the orders of magnitude more destructive and deadly BLM riots. Thats why the progs here and in the media can’t address it directly and have to try to shut off discussion by decreeing it offtopic as you can see in this very thread. Gaslighting and refusing to debate on equal terms is pretty much 90% of contemporary Dem strategy.

              1. Assuming that rioting after BLM protests was done by anyone associated with the protests, it’s entirely unrelated to insurrection.

                1. James, don’t be absurd.
                  In fact, I’ve read enough of your posts to say. “I know you know better. You are being deliberately stupid in order to ignore the point”.

                  This wasn’t insurrection. There was no hope of doing anything other than causing chaos. There was no follow-up. There was no organization. There were a small group of unarmed protestors breaking things going against a small group of armed police who have a literal army behind them. As soon as it turned violent, Trump said, and I quote “You’re special, now go home”. There is no rational way to define this as insurrection.

                  To compare, Harris herself coordinated releasing people from prison who were arrested for a coordinated assault at a federal courthouse that involved throwing bombs and trying to set the building on fire. She then actively and explicitly supported violent protests. The explicit purpose behind this was so that they could go and throw more bombs at the courthouse.

                  There is no definition of insurrection that would convict Trump and not Harris.

                  1. “This wasn’t insurrection. There was no hope of doing anything other than causing chaos.”

                    This is you showing how not to be deliberately stupid to avoid a point?

                    “There were a small group of unarmed protestors breaking things going against a small group of armed police who have a literal army behind them.”

                    Playing the pronoun game to hide who, exactly, had an actual army? Hint: They report to the President, not the Congress.

                    1. If the army had been used, you might have a point. If this was a group led by Trump with operational goals: assassinating Congressmen, setting fire to the building, or doing anything of purpose, I might agree with you. However, none of these occurred.

                      No, what happened was that some people broke into the building, and mostly just milled around in the Capitol. Most of the photos taken inside were indistinguishable from normal tourist photographs. There were small pockets of violence where people got out of control, but there was no organization, no goal, and no resources.

                      Please explain to me how in an “insurrection”, a man who can launch nukes and command tanks instead chose to send a few unarmed protesters to do effectively nothing (and not due to effective policing). The group who broke in mostly just took selfies in the rotunda.

                      To call this an insurrection is equivalent to calling the sidewalk chalk swastikas a violent hate crime. It demeans the importance of what the word means. It’s doubly absurd in the wake of last summer’s violence, which was orders of magnitudes worse.

                    2. “If the army had been used, you might have a point. If this was a group led by Trump with operational goals: assassinating Congressmen, setting fire to the building, or doing anything of purpose, I might agree with you. However, none of these occurred. ”

                      So, because they were inept and ineffective, they get a pass? Nope. No sale.

                      “Please explain to me how in an “insurrection”, a man who can launch nukes and command tanks instead chose to send a few unarmed protesters to do effectively nothing (and not due to effective policing). The group who broke in mostly just took selfies in the rotunda. ”

                      Check your assumptions. The notion that Trump could have launched nukes or commanded tanks is unsupported by evidence that he was capable of doing either of these things that require skill. What you meant to say was that Trump could order other people to launch nukes or command tanks, which is true. Whether you can get them to actually do that in violation of their enlistment oaths to serve and defend the Constitution is another matter, so Donnie used the idiots at his rally instead. The successfully stormed the building but got distracted once inside and didn’t capture the EC ballots, so the insurrection failed.

                      “To call this an insurrection is equivalent to calling the sidewalk chalk swastikas a violent hate crime. It demeans the importance of what the word means.”

                      An insurrection is an attempt to take over the government by force, which is what happened. The fact that it was poorly executed doesn’t make it something else, it’s still what it was… a poorly-planned, poorly-executed insurrection. They don’t get a free pass for being bad at it.

                  2. There was no hope of doing anything other than causing chaos.

                    Ben, set aside imaginary, metaphorical hope, and focus instead on the actual, publicly expressed hopes of the insurrectionists themselves. What do you find?

                    1. A hope to break through police defenses at the Capitol, by smashing their way in violently. That hope was realized.

                    2. A hope to stop the formalization of Trump’s electoral defeat. That hope was realized.

                    3. A hope to kill the Vice President of the United States; a hope to kill the Speaker of the House; a hope to kill specific legislators. Those hopes were suppressed, but in the process of suppressing them, 5 people died.

                    4. A hope to foment violent revolution in the United States. That hope was frustrated for now, but continues a threat.

                    Now focus on hopes we can reliably attribute to Trump himself, as manifested by his proved actions.

                    1. He hoped to continue in office, despite losing an election. That hope was frustrated.

                    2. He hoped to cause chaos. That hope was realized.

                    Really, to justify impeachment, removal, and disqualification, all that is needed is to demonstrate Trump’s hope to continue in office despite losing an election, plus some overt effort to make it happen. That hope, and action in support of it, are already proved beyond reasonable doubt.

                    The chaos caused, which you want to wave aside, is not trivial. It is a grave aggravation of the impeachable offense.

                    If you want to provide specifics regarding the charges you make against Harris, we can consider those. Perhaps she should be impeached too.

                    Finally, a note on insurrection. In any instance of insurrection, it will always be possible to point toward people who might have become insurrectionists, but did not. Those will always be in the majority. That does not mean the insurrection did not happen, or was unimportant, or trivial. To the extent those less-committed participants intended to assist violent insurrectionists toward their goals, that assistance is not blameless. Given that the Capitol insurrection was about keeping in office a president who had lost an election, everyone there who shared that goal deserves a share of the blame, if not always a share of the legal liability. The part which can be excused is the part attributable to ignorance. Perhaps that is the group among which you yourself are numbered.

            2. The consequence is that the Constitution and its norms as a common basis for governance are weakened. Why anyone thinks that’s a good thing is a mystery. No political advantage is permanent. The tide will, sooner or later, shift, and the Democrats will have to live with their own precedent.

              Do the Senate Democrats think that, in retrospect, it was a good idea for Harry Reid to eliminate the 60-vote requirement for federal and judicial nominations?

              1. “Do the Senate Democrats think that, in retrospect, it was a good idea for Harry Reid to eliminate the 60-vote requirement for federal and judicial nominations?”

                In the short term, with a 50.5-50 headcount lead in the Senate, they might. Maybe they can get Trump to campaign for them again in the next Congressional elections. He did such a good job in Georgia.

        2. “I would suggest holding an accusation of double standards in reserve whenever one side claims a monopoly on defending the eternal verities. Or if they say they’ve always been at war with Eastasia when they haven’t been.”

          Perhaps we could dispense with the default assumption that anyone who isn’t 100% aligned with “our” side must be on “the other side” because there are exactly two sides to everything, no more and no less.

          1. You use quotation marks – whom are you quoting?

            1. The quoted words were posted by somebody claiming to be you.

  15. I would worry if these restrictions become lifetime bans on speech.

    Does the court order placing the restrictions expire when trial starts? or if charges are dropped?

    Is the expiration automatic, or must it be explicitly stated in the order?

    Is the defendant free to protest during trial unless the trial court applies new orders?

    Since TV, radio, and newspapers are delivered by the Internet today, does “Restricted use of Internet” prohibit say TV interviews or comments to reporters? Might the order be interpreted to forbidding making statements to police or prosecutors that could be captured on video and sent by Internet to the police’s archive?

    1. I’m bothered, not for the first time, that the prosecution is permitted to try to influence the jury pool, but the defense isn’t.

      1. Sure, if they’ve dispensed with prohibition on jury tampering, that would be worthy of complaint, wouldn’t it?

        1. It’s more a matter of prosecution press conferences not being regarded as “jury tampering” by the government. Though they are obviously intended to influence the jury pool.

        2. Yes, seriously. You really think that the prosecution has no way of influencing the jury pool without engaging in “jury tampering?”

          1. “Yes, seriously. You really think that the prosecution has no way of influencing the jury pool without engaging in “jury tampering?””

            No, seriously, if it isn’t tampering, who cares if the jury pool is “influenced”?

  16. How naïve of Professor Volokh to think that the Constitution is dispositive anymore. The country he came from had a constitution that was one of the most protective of civil rights in the world. With one minor disclaimer: there was an exception that gave precedence to the interests of the State. That one little exception gave rise to the horror that was the Soviet legal system, including gulags and psychiatric comittment.

    Welcome home, Professor. I suspect some of your co-conspirators feel very comfortable with this.

    1. “ That one little exception gave rise to the horror that was the Soviet legal system.”

      Don’t sell the Soviets short. I’m confident they would have learned the art of redefining terms with longstanding meaning in new and novel ways sufficient to run the gulags with or without that clause. Pretty ethnocentric to imagine Americans are the only ones capable of turning men into women don’t you think? If we can perform such feats, they too would have found a way. Case in point, look how similar our media operations are to theirs! Heck, we used some of the same financiers.

      1. They had the misfortune of having a would-be dictator who wasn’t colossally inept and ineffective.

  17. “Either the Constitution matters and must be followed . . . or it is simply a piece of parchment on display at the National Archives.”
    In 2021, the laws, customs, and habits of the heart that had defined the American republic since the 18th century are things of the past. Americans’ movements and interactions are under strictures for which no one ever voted. Government disarticulated society by penalizing ordinary social intercourse and precluding the rise of spontaneous opinion therefrom. Together with corporate America, it smothers minds through the mass and social media with relentless, pervasive, identical, and ever-evolving directives. In that way, these oligarchs have proclaimed themselves the arbiters of truth, entitled and obliged to censor whoever disagrees with them as systemically racist, adepts of conspiracy theories.
    Angelo Codevilla
    https://amgreatness.com/2021/01/19/clarity-in-trumps-wake/

    1. The constitution was written by and for straight white male slaveholders. Why would an 18th-century document like that have anything worth following in a world like ours, where we value Diversity, Inclusion, and Equity over life, liberty, and the pursuit of happiness?

    2. Wow! “Identical,” AND, “Ever-evolving.” That there is some kind of evolution—evolution with coordination. Natural selection with a steering wheel!

  18. Can he be prevented from his Fist Amendment right to petition for redress of grievances by visiting his State Rep and Senator and US Rep and Senator?

      1. Nearly every convict loses that right, either by being sentenced to prison or probation that precludes leaving the state.

  19. I am not a lawyer, but I know enough not to suppose a layman can just read the text of a law and understand what it means. That said, I looked up the federal law on denying bail when the accused can be shown to be especially dangerous. Can someone who knows the law explain to me why this guy is even eligible for bail?

    1. Probably because the government doesn’t want to spend the effort proving that he’s dangerous to the judge and shouldn’t be released on bail.

    2. 1)People charged with murder frequently get bail.

      2)This guy, ??I think?? is charged with a misdemeanor.

      3)Given my sense of the typical delays before trial in federal court, keeping people accused of misdemeanors incarcerated until trial would seem to be generally ill advised.

    3. I’m not trying to be uncharitable, but are you sure you read it? Maybe I’m giving to much credit to the laity, but the law isn’t that hard to understand.

      The Bail Reform Act generally requires that defendants be granted pretrial release, unless the government can prove by a preponderance of the evidence that the release conditions won’t reasonably assure their appearance, or by clear and convincing evidence that they won’t reasonably assure the safety of the community. That didn’t happen here.

      (Incidentally, no one in the federal system is “ineligible” for bail, although in some particularly serious cases the burden is reversed and there is a rebuttable presumption that no conditions will make release appropriate.)

      1. “Incidentally, no one in the federal system is “ineligible” for bail”

        Which is why we STILL operate a prison in Cuba.

      2. Noscitur, did you use the link to the guy’s recorded statement? He’s on tape, in the midst of a deadly insurrection, swearing that elected officials are traitors, and that he is going to come back and do it again. He said this,

        If we’ve got to come back here and start a revolution and take all of these traitors down, which is what should be done, then we will.” …

        He took pains to add special verbal emphasis to, ” . . . then we will.”

        I’m asking, if that’s not sufficient proof of future danger, what proof would be required? And on what basis you say, “That didn’t happen here.”

  20. Be indicted as a ham sandwich for felonious mopery with intent to gawp; and have your rights rescinded in pre-trial release.

    1. They can’t do anything without due process of law. If you don’t like what process is due, write your Congressman.

  21. I think we are seeing a Uni-party movement. That is just like China and Russia there is only one party. There are folks who actively oppose the communist party but if they somehow stay alive they don’t have the means to pull it off because it would actually take an armed insurrection to do it.

    Both China and Russia have no significant history of anything but Uni-party whether it be the Communist Party or monarchs (Emperors/Czars).

    We’ve had 250 years of no Uni-party and we are 50-50 now.

    Twitter/FB and the corporate Uni-partiers won’t succeed because there is just too much opposition. If they press and really over reach like use military force to suppress free speech etc. there will be a hot war.

    Although its not 1776 I think you would be surprised how a fractured military may not be so effective at putting this fire out in 2021

    I don’t think they’re that stupid but overall in 2020 and early 2021 they have surprised me.

    I suspect they will go hard core cold war but will meet extreme resistance from the red state folks. Probably even the red parts of blue states.

    They either moderate or it will turn into a hot war.

    1. It takes someone way out on the fringe to think the GOP and Dems are the same.

      1. It takes some determined blindness to not see the party establishments have a lot more in common with each other than they do with their voting bases.

        He’s saying they’re about halfway to becoming a uniparty. I’d say that’s about right.

        1. “He’s saying they’re about halfway to becoming a uniparty. I’d say that’s about right.”

          Is that why you’re so equivocal about which party you support?

      2. No, that’s mundane and obviously correct. They both support endless deficit spending. They both support killing in far away lands with foreign wars. Just the other day, one of the liberal commenters on this blog was explaining to me that leading GOP politicians don’t actually want to do anything about millions of unborn children being slaughtered, as if I didn’t know that already.

        1. ” Just the other day, one of the liberal commenters on this blog was explaining to me that leading GOP politicians don’t actually want to do anything about millions of unborn children being slaughtered, as if I didn’t know that already.”

          If it supports your argument, just blithely flip from “the party” to “the party leaders” as if they’re interchangeable.

      3. Two fringey folks come by to prove my statement.

        Just because you wish they were further apart, does not mean they are not far apart.

    2. “That is just like China and Russia there is only one party.”

      In the sense that Russia has more than one party: One with Putin in it, and one with occasional Novichok in it.

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