Outpost of Freedom blog

Freedom of the Press #7
“Judicial Discretion” and Tyranny

Gary Hunt
Outpost of Freedom
February 20, 2017

Let’s review this whole situation from the beginning.  After all, it has taken a month and a half to get to this point, so perhaps a refresher is in order.

On January 5, 2017, I was hand served a “Cease and Desist Letter” by an FBI agent.  Since the service was disclosed on Facebook, I wrote a “Statement with regard to  the Freedom of the Press“, on January 6.  That was followed with a series entitled “Freedom of the Press“, beginning on January 7 entitled Freedom of the Press #1 – Meeting with the FBI.  The following day, January 8, I explained the Cease and Desist Letter with Freedom of the Press #2 – Cease and Desist.

These events were preceded by a number of articles that I had written in the “Burns Chronicles” series.  In those articles, I exposed FBI informants associated with the occupation of the Malheur National Wildlife Refuge outside of Burns, Oregon.  The information used to identify and expose the informants was derived from some Discovery documents I had obtained.

The original Protective Order, dated March 24, 2016, lays out the restrictions placed upon certain described individuals.  Those prohibited from “disseminating” information contained in the Discovery are described in that Protective Order:

ORDERED that, pursuant to Rule 16(d)(1) of the Federal Rules of Criminal Procedure, defense counsel may provide copies of discovery only to the following individuals:

(1) The defendants in this case;

(2) Persons employed by the attorney of record who are necessary to assist counsel of record in preparation for trial or other proceedings in this case; and

(3) Persons who defense counsel deems necessary to further legitimate investigation and preparation of this case.

Upon my indicating to the FBI agent that hand-delivered the Cease and Desist Letter, that it was not applicable to me, the government filed a Motion to Enforce Protective Order (Expedited Consideration Requested), dated January 6, 2017.  That Motion states:

Pamala R. Holsinger, Assistant United States Attorneys, hereby moves this Court for an order enforcing the Protective Order against a third party illegally in possession of protected sensitive discovery materials in this case.

Now, the wording of the Protective Order says nothing about a third party, nor does it say anything about the possession of the material is illegal.  If it were illegal, it would be against the law.  However, you can only be in violation of a Protective Order if you are among those to which the Order applies.

The government makes a rather interesting statement in that Motion, “This Court has jurisdiction to enjoin a non-party from disseminating confidential documents produced in reliance upon and subject to this Court’s Protective Order.”  However, they cite a Second Circuit Court decision, Eli Lilly & Co. v. Gottstein, 617 F.3d 186, which I addressed in a subsequent article.  It does not corroborate their claim, to the contrary, it supports the limited jurisdiction that I had already stated exists.

The Motion is supported by an Affidavit, of the same date.  That Affidavit refers to some of my articles.  In so doing, they have entered those articles, which would include the entire series, into the Court’s record.  Those specifically mentioned were from “Burns Chronicles”, to include #40, #41, and #49.  Also quoted is my statement regarding the “prohibited material” taken from #40.  That statement serves as prima facie evidence of my intent.  But, the government is insistent upon twisting the truth, in order to create a wholly different characterization of my actions.  This would allow them to charge culpability on my part.

Let’s get to the heart of the matter. To do so, I will be referring to FBI documents that I have obtained. They are marked, at the bottom left comer, “Dissemination Limited by Court Order”. So, let me make this perfectly clear- I have no intention of “disseminating” the documents, nor am I bound by any “Court Order”. I am writing about a Public Trial, which was held in September and October 2016

I had been working on a response to that Affidavit and its erroneous presumptions, though I never completed it (maybe I will, when time allows), when the government came back with a Supplemental Memorandum in Support of Motion to Enforce Protective Order, dated January 10, 2017.  That Motion has a rather interesting statement made when they refer to the Affidavit filed in support of the Motion.  It states:

In a Facebook post regarding the FBI’s February 5, 2017, visit to Gary Hunt to serve the cease and desist letter, a person asks “who is Gary Hunt?” On defendant Duane Ehmer’s Facebook account a response is posted, “He is working with our lawyers.”

The Ronnie Walker Affidavit in Support of that Motion, also filed on January 10, 2017, states:

On January 6, 2017, another individual posted a question on that same page asking “Who is Gary Hunt?” That same day, the message “He is working with our lawyers” was posted in reply from defendant Duane EHMER’s Facebook account. Sarah Redd-Buck and Duane EHMER’s Facebook accounts are not private and can be viewed by anyone accessing Facebook.

So, the Motion states, “He is working with our Lawyers” is a response to the question, “Who is Gary Hunt?”

On the other hand, the Affidavit states “a question on that same page asking, “Who is Gary Hunt?”.  Then states, “He is working with our lawyers” were posted in reply from defendant Duane EHMER’s Facebook account.”

Now, there is a subtle difference between the two, however, the Affidavit is more accurate than the statement made on the Motion.  Perhaps we should go to the source and see what was really said (this image is taken from the Affidavit):

Well, son of a gun, the question was actually asked a full 17 minutes after it was answered.  Who would believe that the FBI (Ronnie Walker) and the US Shyster (See Freedom of the Press #6 – “Tilting at Windmills” – Redux) would attempt to mislead the Judge?  This sequence begs a question, just to whom is Ehmer referring to by “He”?

.

Also, see “5.”  In the event…”, below.  The have yet to even suggest that Duane Ehmer is the “source”, the condition that the Judge imposed on the government, and a requisite necessary to extend the Protective Order to me.

Even more disconcerting is the fact that the government will continue to rely upon this Facebook post as truth and absolute proof that I “aided and abetted” someone.  Keep this in mind, as we will soon return to the subject of aiding and abetting.

On January 9, the day before this Motion and Affidavit were filed, I put out Freedom of the Press Update – A Grateful Thank You.  I was hoping that Judge Brown had not taken leave of her senses, but I was wrong.

The day after the Motion and Affidavit were filed, we find the Court’s Order, in part,  of January 11, 2017.  In this Order, she does realize that the legal criterion for lawful authority has not been met.

1.  The Court DIRECTS Hunt to remove all protected material and/or information derived from material covered by the Protective Order from his website(s) within 24 hours of the service of this Order;

2.  The Court ENJOINS Hunt from further dissemination of material covered by the Protective Order or information derived therefrom to any person or entity.

3. The Court DIRECTS the government to serve Hunt personally with a copy of this Order together with a copy of the Protective Order (#342) and the Supplement (#1692) thereto as soon as possible and to file immediately in the record a certificate stating it has effectuated such personal service or otherwise ensured Hunt has personal knowledge of the contents thereof.

4. In the event that Hunt fails to comply with this Order after he is served, the government may initiate contempt or other enforcement proceedings in a court of competent jurisdiction. ¹

5. In the event that the government obtains reliable evidence regarding the source from which Hunt obtained the protected materials, the Court trusts the government will seek appropriate relief from the Court without delay.

[Footnote to #4]

1 Because the question is not presently before it, the Court does not express any opinion regarding which United States District Court would have jurisdiction to require Hunt to appear personally in such enforcement proceedings.

The first three items are intended to be authoritative instructions to, or regarding, me.  However, there is a caveat in both #4 and “5.  Let’s deal with #5 first.

If “the government obtains reliable evidence regarding the source“, then the government may “seek appropriate relief“.  So, how does that work?  She says that items 1 through 3 apply, yet that is exactly the relief they are seeking.  If it is invalid, absent the proof of aiding and abetting, by providing reliable evidence, then there is no authority to proceed with any sanctions against me.  The nexus to the source is the only element that will, perhaps, bring me under the authority of the Protective Order.  However, that will also be addressed, again.

Next, we need to look at #4.  It says, “the government may initiate contempt or other enforcement proceedings in a court of competent jurisdiction.  ¹” Don’t overlook the superscripted “1”, as this refers to the footnote.  If the Judge says that it “does not express any opinion regarding which United States District Court would have jurisdiction to require Hunt to appear personally in such enforcement proceedings“, then how is it that she can assume to have legal authority to give the orders given in #1 and #2, and to send the government on a fool’s errand by serving me this Order?

The Order also explains the reason for the following Supplement.  It states:

In order to make clear in the public record that the Protective Order prohibits even third parties from disseminating protected materials and information, the Court is filing a Supplement to the Protective Order together with this Order.

So, the Court is going to make clear that which was made clear in the initial Protective Order.  In truth, the Court wants to change the original intent of the Protective order to encompass those that were not included in that Order.  They were probably not included as there is no authority to go beyond the reach of that Order when it was written.  That explains why aid and abet is a significant part of any Protective Order extending beyond the legitimate reach of the any other than parties to the action.

In the Court’s effort to extend the Protective Order of March 24, as just described, she does endeavor to ex post facto that Order with a Supplement to the Protective Order, dated January 11, 2017.  In it, she extends her Protective Order, and, presumably, her jurisdiction, to the four corners of the Earth.

For the reasons stated in the Court’s Order Granting in Part the Government’s Motion to Enforce Protective Order, the Court supplements the Protective Order issued March 23, 2016, as follows:

Any individual or entity that obtains materials protected by the Court’s Protective Order is prohibited from disseminating those materials or any information derived therefrom to any other individual or entity by any means.

Based upon the tens of thousands visits to my page, alone, the information has likely been shared to at least that many times.  So, at the stroke of Brown’s pen, they have become subject to the Protective Order w/ Supplement.  Darn, that is one powerful pen.

In Response to the Affidavit previously mention, filed on January 10, I wrote Freedom of the Press #3 – “Contemptuous Postings”.  To refute the frivolous comment made by Duane Ehmer, I stated:

For the record, I have never spoken with any of the defense attorneys or investigators in this case.  The closest I have come to that is speaking with some of the defendants.  However, I have heard that the defense attorneys do like my work, and some even look forward to my next article.  I also know that the government players read my work, though I have no doubt that they neither enjoy nor look forward to my next article.  And, that is the way that it should be.

It seems that the government, once again asserts the veracity of Ehmer’s comment, and submitted hearsay from Facebook as evidence, while ignoring a direct statement from my article.  However, we will touch on this, again.

In that same article, I addressed the shysters by citing Roviaro v. United States, 353 U.S. 53 (1957).  For whatever reason, they ignored what the Court determined in that decision.  The defendants had a right to know the identity of the informant, even in the high risk situation of a drug case, if that informant’s testimony might be exculpatory, and might affect the verdict.  So, where was Judge Anna Brown’s judicial discretion when she chose to allow the government to redact the identifying information?

In response to the January 11 Memorandum resulting in the issuance of the Order of January 12, I wrote Freedom of the Press #4 – The Order.  In that article, I addressed the case law the government cited in the Motion and Memorandum.  It seemed that they just threw cases against the wall, hoping some would stick.  It appears that all of the case law cited supports my position, not theirs.

After the January 11 Order, there was silence.  It would be 19 more days before the government could figure out their next move.  That came on January 30, 2017, when they filed Government’s Motion for an Order to Show Cause, and, not to be out done, they filed an Affidavit of FBI Special Agent Ronnie Walker in Support of Government’s Motion for an Order to Show Cause.  Interestingly, in the Affidavit, they entered my Freedom of the Press #4 – The Order into the record.  So, now, they have introduced both the “Burns Chronicles” and “Freedom of the Press” series.  This, then, would make all of my articles in the series’ a part of the record.  You cannot enter a page and not include the book.  I’m sure that in hindsight, they realize that this was not a good move.

That Motion was chocked full of case law, though, as in their previous Motion and Memorandum, the case law tended to support my position.

Their case law, of course, was rebutted by my January 30, 2017, Freedom of the Press #5 – “Tilting at Windmills”.  In this article, I, again, rebutted their case law, showing that what they cited supported my position, to their detriment.

Now, we move into the recent happenings.  Instead of heeding her own edicts, particularly #4 and #5 from her Order of January 11, 2017, she Grants the government’s Motion for an Order to Show Cause of January 30.

4. In the event that Hunt fails to comply with this Order after he is served, the government may initiate contempt or other enforcement proceedings in a court of competent jurisdiction. ¹

5. In the event that the government obtains reliable evidence regarding the source from which Hunt obtained the protected materials, the Court trusts the government will seek appropriate relief from the Court without delay.

[Footnote to #4]

1 Because the question is not presently before it, the Court does not express any opinion regarding which United States District Court would have jurisdiction to require Hunt to appear personally in such enforcement proceedings.

Their argument regarding jurisdiction (#4) is without merit.  Reading “Tilting at Windmills” will set that record straight.  None of their citations were on point to the situation in Oregon, and some specifically addressed the limitation on contempt to be within the Judicial District that had jurisdiction over the case, though it did extend to other parties, even employees of those parties,  to the case, who were in other Districts.  It would also apply if one were found to have aided and abetted a party to the action (#5).  However, as she stated on that Order, it required reliable evidence of the aiding and abetting.

However, they have simply repeated the Facebook hearsay, asserting Duane Ehmer’s out of sequence statement as fact.  Now, just last week Ehmer was in Court, they could have sworn him in and proven, or disproven, the veracity of that Facebook claim.  They could also determine, while Ehmer was under oath, whether he was the source from whom I received the Discovery documents.  Their ability to prove, or disprove, was in their hands, and they chose not to go there.  Is it difficult to understand just why that remedy was not pursued?

Then, on February 7, the government, in an effort to bring some big guns to bear, or, perhaps realizing just how weak their argument was, filed their Supplemental Memorandum in Support of Government’s Motion For an Order to Show Cause.

I addressed portions of this Supplement in Freedom of the Press #6 – “Tilting at Windmills” – Redux.  However, I left a portion out, intending to address that portion in a subsequent article (which will follow this one).

Although rather lengthy, it does put the proper perspective on what has transpired.  For example, two of the cases cited by the shysters came under anti-trust acts, and being within the Commerce Clause of the Constitution, are not relevant.  The cited Myers v. United States, 264 U.S. 95.  In that case, defendants, “in the Western Division of the Western District of Missouri, [were] attempting, within the Southwestern Division of the same District, to prevent certain railroad employees from continuing at work.  The order ran against men on strike, and the cause is treated as one within the purview of the Clayton Act.”  There was no crossing of jurisdictional lines between Districts, only between Divisions.  However, in her majesties judicial discretion, she ignored Division boundaries in both Grand and Petit Jury selections, yet now decides that District boundaries have no limitations

I would like to refer the reader to an article that appeared in the “Burns Chronicles” series.  To understand what was written about some of the recent shenanigans in the Group 2 trial, currently underway, which parallel this current discussion.  Read Burns Chronicles N^o 57 Collusion or Conspiracy?

On February 16, 2017, Judge Anna Brown Granted the “Government’s Motion for Order to Show Cause” and an “Order to Show Cause“, addressed to “Gary Hunt”, who is not a party to the proceedings.

In so doing, she has ignored the arguments that I have made in the Court of Public Opinion.  Apparently, she doesn’t realize that my arguments have been made a part of the record, thanks to the actions of the government shysters.  In her majesty’s judicial discretion, she has ignored case law since the beginning.  She ignores case law, now.  She simply asks the shysters to give her a piece of paper that appears to say what it does not say, and then uses that, in her judicial discretion, to rule from her throne.

In allowing the government shysters to add additional misdemeanor charges to the Group 2 trial, now commenced, the use of her judicial discretion is suggestive of her desire to obtain the Group 2 defendants conviction, even if those guilty verdicts must come from her lips.  The government having spent a fortune in the prosecution of the Group 1 trial, left the government empty-handed.  It appears that the government wants something to show for their efforts.  It appears that her judicial discretion is being used to aid the Executive Branch Department of Justice to save face.  She is also using judicial discretion to endeavor to silence the press, in its rightful role of exposing misdeeds of government.

So now, let’s look very closely at judicial discretion.

From: “Law Dictionary Adapted to the Constitution and Laws of the United States of America and of the Several States of the American Union” by John Bouvier, Philadelphia, 1856 (aka Bouvier’s Law Dictionary)

DISCRETION, practice.

1. When it is said that something is left to the discretion of a judge, it signifies that he ought to decide according to the rules of equity, and the nature of circumstances. [citations omitted.]
2. The discretion of a judge is said to be the law of tyrants; it is always unknown; it is different in different men; it is casual, and depends upon constitution, temper, and passion. In the best, it is oftentimes caprice; in the worst, it is every vice, folly, and passion, to which human nature is liable. Optima lex quae minimum relinquit arbitrio judicis: optimus judex qui minimum sibi*.  [citations omitted.]

Black’s Law Dictionary: 2nd Edition

Definition.  Optima lex quae minimum relinquit arbitrio judicis: optimus judex qui minimum sibi:

That law is the best which leaves least to the discretion of the judge; that judge is the best who leaves least to his own.  [citations omitted.]  That system of law is best which confides as little as possible to the discretion of the judge; that judge the best who relies as little as possible on his own opinion.  [citations omitted.]

 

Now, all that is left is for the reader to decide if Judge Anna Brown’s Judicial Discretion is in accordance with the first, or the second, definition.