© Scott McIntyre for The New York Times
© Monica Jorge for The New York Times
© Jenn Ackerman for The New York Times
James Ho, whom President Donald Trump appointed to the U.S. Court of Appeals for the 5th Circuit in 2017 and considered as a potential Supreme Court nominee, recently criticized Trump v. Barbara, the June 2026 decision rejecting Trump's attempted restrictions on birthright citizenship. Ho's remarks, part of a speech he delivered on October 5 to a gathering of Christian activists at the Museum of the Bible in Washington, D.C., are striking because they seem to contradict his longstanding position that the children of unauthorized immigrants qualify as citizens under the 14th Amendment when they are born in the United States.
The New York Times presents Ho's speech as evidence that he hopes Trump will nominate him to the Supreme Court, assuming that opportunity arises during the next two years. But whatever you make of that theory, Ho's position on Trump v. Barbara is hard to reconcile with what he has repeatedly said about the meaning of the 14th Amendment's Citizenship Clause.
"Birthright citizenship is guaranteed by the Fourteenth Amendment," Ho wrote in a 2006 law journal article. "That birthright is protected no less for children of undocumented persons than for descendants of Mayflower passengers."
Ho reiterated that position in a 2011 Wall Street Journal essay. "Opponents of illegal immigration cannot claim to champion the rule of law and then, in the same breath, propose policies that violate our Constitution," he wrote.
The first sentence of the 14th Amendment, Ho noted, says "all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States." The "plain meaning" of that language "is clear," Ho said. "A foreign national living in the United States is 'subject to the jurisdiction thereof' because he is legally required to obey U.S. law." The historical evidence, he added, shows that "both proponents and opponents of the citizenship clause agreed" that "it would extend birthright citizenship to the U.S.-born children of Chinese laborers and other noncitizens."
So why does Ho think the Supreme Court reached the wrong result in Trump v. Barbara? "Foreign governments weaponize illegal immigration in order to hurt other countries," he said at the Museum of the Bible conference, which was convened by the Judicial Action Group. "For decades, administrations of both parties have warned the people about the use of illegal immigration as a weapon of war, and judges are supposed to defer to presidential proclamations about a state of invasion. So the Supreme Court should have upheld the president's birthright citizenship order in full based on his invasion proclamation."
Ho hinted at this position in a November 2024 interview with South Texas College of Law professor Josh Blackman, who agrees with Ho that the Citizenship Clause covers the U.S.-born children of unauthorized residents. The previous July in United States v. Abbott, Blackman noted, Ho had written a dissenting opinion arguing that illegal immigration could qualify as an "invasion" under Article I, Section 10, Clause 3 of the Constitution, which says no state may "engage in war, unless actually invaded, or in such imminent danger as will not admit of delay."
Blackman asked Ho to address criticism of that opinion. "Anyone who reads my prior writings on these topics should see a direct connection between birthright citizenship and invasion," Ho replied. "Birthright citizenship is supported by various Supreme Court opinions, both unanimous and separate opinions involving Justices Scalia, Thomas, Alito, and others. But birthright citizenship obviously doesn't apply in case of war or invasion. No one to my knowledge has ever argued that the children of invading aliens are entitled to birthright citizenship. And I can't imagine what the legal argument for that would be."
The problem with Ho's qualification is that it empowers the president to override birthright citizenship, which Ho has said is guaranteed by the 14th Amendment, simply by declaring that illegal immigration amounts to an "invasion." It is not hard to see why that position would appeal to Trump, since it means he can unilaterally redefine citizenship.
Does that mean Ho is kissing up to Trump because he wants to replace any justice who might retire before the end of Trump's term? That is what Times reporter Mattathias Schwartz suggests. Schwartz concedes that Ho, like most of the potential Supreme Court nominees that Trump listed during his first term, falls into the category of "traditional conservatives with strong ties to the Federalist Society." But Schwartz says "some experts perceive Judge Ho's remarks" as "an attempt to show his alignment with Mr. Trump's worldview."
How so? Ho's speech "channeled frustrations shared by Mr. Trump and his base that the Supreme Court's six-judge conservative supermajority—three of whom are Mr. Trump's appointees—have failed to uniformly back his agenda," Schwartz writes. "Despite a string of conservative wins on abortion, gun rights, and gerrymandering, there is a sense on the Trump-aligned right that Justices Brett M. Kavanaugh, Amy Coney Barrett and Neil M. Gorsuch are becoming unreliably centrist swing votes—'squishes' in the online parlance—in the mold of Justices Anthony M. Kennedy and David H. Souter."
That framing implies that backing Trump's agenda is a matter of conservative principle. But Trump himself has no coherent ideology, and his authoritarian impulses often run headlong into conservative principles such as originalism, the rule of law, and the separation of powers. It makes sense to describe justices who occasionally disagree with Trump as "centrist" only if you accept the idea that his views are the standard by which judicial performance should be judged.
In any event, Schwartz suggests that Ho is presenting himself as a Trump-friendly judge who, unlike Kavanaugh, Barrett, and Gorsuch, could be relied upon to take the president's side. But the evidence that Schwartz cites to support that take is thin.
As Schwartz acknowledges, it is not even clear that Ho wants the job for which he supposedly is auditioning. His wife, Allyson N. Ho, works for a law firm that frequently litigates Supreme Court cases, and Judge Ho has suggested that her career would be ruined if he joined Court. "I can't imagine that Allyson's firm would want to be categorically recused from the highest court in the land," Ho said in a recent interview. "To have to tell every client that, if you hire them, they can only seek cert from an eight-member Court? That would effectively end her career and her practice—one she's worked so hard, for decades, to build."
Undeterred by that wrinkle, Schwartz cites parts of Ho's speech that he thinks suggest a desire to please the president. "Judge Ho lamented the values of 'this fallen world,'" Schwartz writes. "He called on the judiciary to stand up to 'cultural elites who control the national discourse.' He also bluntly rebuked the Supreme Court for legalizing same-sex marriage. He said the court's majority was wrong not to block the distribution of an abortion drug. And he said it was wrong again when it rejected Mr. Trump's attempt to limit birthright citizenship."
Those comments presumably appealed to the Christian conservatives in the audience. But with the exception of Ho's position on Trump v. Barbara, none of this seems tailored to ingratiate Ho with Trump, who is not particularly religious and seems to have no real interest in revisiting same-sex marriage or overriding state abortion policies.
While opposition to "cultural elites" sounds consistent with Trump's populism, the context of that phrase makes it clear that Ho was defending originalism against result-oriented jurisprudence. "We know that originalism may be permitted in polite company," Ho said, "but only until it leads to outcomes that are detested by the cultural elites who control the national discourse and who dispense the prestige and the respect and the stature craved by so many judges."
Although Ho's speech was peppered with Christian rhetoric, some of which the Times quotes, he emphasized that originalism does not entail interpreting the law according to religious principles. "Being an originalist means following the text and original understanding of the law no matter the outcome, no matter the effect on the judge's standing or reputation in the community," he said. "And if that's truly what you're doing, there actually should not be a Christian interpretation of the text or an atheist interpretation of the text. There would just be a dutiful, faithful interpretation of the text."
If you think Trump honestly cares about judicial methodology, "faithful interpretation of the text," or adherence to the original understanding of the Constitution, you have not been paying attention to his criticism of judges and justices, which is always based on their failure to agree with him. Michael Fragoso, former chief counsel to Sen. Mitch McConnell (R–Ky.), who was the Senate majority leader when Trump nominated Kavanaugh, Gorsuch, and Barrett, made exactly that point in an interview with Schwartz.
"One thing the activist class hasn't figured out is that the president doesn't really care about any of those substantive questions," Fragoso said. "He sees this as a loyalty issue."
Given that reality, you might expect that a judge trying to signal "his alignment" with Trump would say something about tariffs, his signature policy. But Ho's criticism of recent Supreme Court rulings did not extend to its decision last February in Learning Resources v. Trump, which rejected Trump's claim to sweeping tariff powers under the International Emergency Economic Powers Act.
Of all his judicial setbacks during his current term, Trump was probably angriest about that one—in particular, the role that Gorsuch and Barrett played by joining the majority. Yet Ho, who supposedly was channeling Trump's frustration with such traitors, did not mention that case. Nor did he say anything about the Supreme Court's ruling against Trump's National Guard deployments or its decision constraining his use of the Alien Enemies Act, which were both big losses for him.
Those omissions are puzzling if Ho was mainly interested in boosting his chances at a Supreme Court nomination. Less so if he was simply expressing his honest opinions.
The post 5th Circuit Judge James Ho Says a Presidentially Declared 'Invasion' Overrides Birthright Citizenship appeared first on Reason Magazine.
Another New York City Mayor Zohran Mamdani campaign promise could be closer to becoming reality. Remember the Department of Community Safety?
As The New York Times reported last April, Mamdani originally envisioned that the department would "focus on expanding violence interrupter programs and mental health teams that respond to 911 calls." Mamdani initially proposed setting aside $1 billion a year for the agency.
But that grand vision has not been fully implemented. In March, Mamdani signed an executive order to establish the Office of Community Safety (OCS) as a "first step" toward creating a Department of Community Safety. The OCS "develops citywide community safety strategies" and serves as an umbrella for other city offices, including the Office of Neighborhood Safety and the Office for the Prevention of Hate Crimes. Far from the billion-dollar price tag for a full-fledged department, the city's FY 2027 budget sets aside $40 million for the OCS.
But some New York City councilmembers want a larger-scale "community safety" operation as Mamdani had originally envisioned. On Friday, city council members held a hearing on a bill to establish a Department of Community Safety. According to Gothamist, the bill's primary sponsor, Councilmember Lincoln Restler, has said that he has the support of 34 co-sponsors, enough for a veto-proof majority. Restler wants the department to coordinate homeless and mental health services, de-escalate emergency situations, and "expand violence interruption and public safety work done by nonprofit workers," reported the outlet.
Just as New York City may be scaling up its community safety apparatus, another city voted to dismantle its community safety office this week. On Thursday, the Minneapolis City Council voted to eliminate the city's Office of Community Safety, which was created in 2022.
According to KSTP 5, councilmembers argued that "the agency had not delivered results worth the cost," and some "said the office did not improve oversight of the Minneapolis Police Department."
A Minneapolis City audit from this year also found that the city's Neighborhood Safety Department (which is part of the city's OCS) failed to "properly oversee its contracts," reported FOX 9. And according to an investigation by the outlet, one "prevention consultant billed over $270,000 for personnel, rent, and food, yet the city never produced a single receipt for the company."
Minneapolis Mayor Jacob Frey opposed shuttering the office. He told MPR News that "those who are bringing this proposal both don't understand what it takes to run safety departments for a major city, nor do they have any plan for how these essential services should be delivered under their own proposal."
As MPR News noted, New York City's Office of Community Safety is different from Minneapolis's model. In Minneapolis, the office oversees the police, 911 emergency responders, and the fire department, along with neighborhood safety groups. In New York, the office does not oversee the police, 911 emergency services, or the fire department. Still, Frey tried to defend the Minneapolis Office of Community Safety by claiming its model has been "nationally recognized" in places like New York, reported MPR News.
New York City's Office of Community Safety is still relatively new, and it may be difficult to judge its effectiveness. It's fair to question whether the answer to enhancing safety is more bureaucracy and government-supported nonprofits. If New York is to sink more taxpayer funding into turning the office into a department, it would be wise to study Minneapolis's apparent mismanagement and mistakes.
The post NYC Looks To Scale Up Mamdani's Office of Community Safety. Minneapolis Leaders Just Voted To End Theirs. appeared first on Reason Magazine.
A lesson from this lawsuit filed by lefty streamer Hasan Piker against podcaster and CNN contributor Scott Jennings: Never be sarcastic. Never use hyperbole. It will always come back to bite you.
I happen to like hyperbole and sarcasm, though. So, I'm sympathetic to Piker's plight. Still, I'm not 100 percent certain he will—or should—win this case.
Two years ago, Piker, reacting to a debate in which a black conservative commentator complained about "woke" district attorneys, sarcastically summarized the commentator's argument during a Twitch broadcast:
He said, "We need more Klansmen, okay? Can we go back to a better time when lynchings were happening? This is what I like as a Black man. Also, there's no real racism in America." My man said, "woke DAs," dude. What are you saying?
That doesn't seem like the most charitable way to describe the dude's comments. Perhaps Piker has some problems with overreaction. But in any event, it's clear that Piker himself was not professing a yearning to don a white robe.
But context collapse is the internet's love language. And so we got this.
How does Abdul El-Sayed's campaign surrogate Hasan Piker feel about Black Americans?
Watch for yourself. pic.twitter.com/icGiXek7Ok
— Senate Republicans (@NRSC) August 6, 2026
Weaving together fragments of Piker's above comments and several other out-of-context clips, the National Republican Senatorial Committee (NRSC) made it appear as if Piker was himself advocating in favor of the lynching of black people.
Later, Scott Jennings aired the clip on his podcast/syndicated radio show, saying that Piker was "out there calling for Black voters to be lynched." A caption on the video said "PIKER: 'LET'S GO BACK TO A BETTER TIME WHEN LYNCHINGS WERE HAPPENING,'" per Piker's complaint.
Piker certainly has justification to be outraged and to push back against this false characterization. But…is it defamation?
Legally speaking, maybe not. To prove defamation against a public figure, you have to show not only that a harm-causing false statement was publicized but that it was done with "actual malice."
In this case, showing that Jennings acted with actual malice could prove a hard task. To have acted with actual malice, he would have to have had "knowledge that [his statement] was false" or to have acted with "reckless disregard of whether it was false or not."
Even if Jennings did deliberately lie from the get-go, good luck proving that. The clip was circulating already when Jennings aired it, shared by not just some random account but the NRSC. It features real footage of Piker, not an AI-generated deepfake. And it features real statements that Piker made, albeit taken out of context. There's plenty of room for plausible deniability.
But whether Jennings was "reckless" in running with the story will be a thornier question. Given the video's source and it actually featuring Piker talking, Jennings might have good grounds to argue that in the beginning he was not. But Snopes did a debunking, and Piker's people emailed Jennings explaining the true context. Still, Jennings left it up.
That complicates things. Even if Jennings didn't understand originally that the clip was misleading, the full clips should have helped him wise up. And if Jennings was pointed to them and didn't watch them, that would seem to at least constitute recklessness—though of course we haven't heard Jennings' side of the story yet.
Whatever happens, the case highlights how tricky defamation law is. People will always argue that it should be easier to win defamation cases, at least when the defamed party is on their side. But the upshot of that is that journalists and news outlets—and perhaps everyone who ever got fooled by and shared a misleading video clip—would be screwed.
The same rationale that could possibly protect Jennings in this case also allows journalists to publish important stories about people in power even if the people in power dispute the facts or the interpretation of them. It also helps ensure that making honest mistakes won't mean their financial downfall.
In this case, Piker is seeking $72.5 million in damages. "You have to remember, this is not just about Scott Jennings, although he certainly messed up," Piker told his audience on Twitch Tuesday. "This is about truth in the media, OK? I think for far too long we have allowed Republicans to get away with saying whatever they want."
But while defamation law that errs in favor of free speech can seem unfair when it lets someone falsely portray someone else as pro-lynching, the underlying structure actually shields press, podcasters, Twitch streamers, and anyone else who wants to write and talk publicly about politicians, celebrities, and other public figures. That's not to say Jennings shouldn't have, at bare minimum, been more careful. Or that Piker won't win—who knows? But if he loses, believers in free press and free speech should think twice before using this as a jumping-off point to call for changes to defamation law.
The post Hasan Piker's Defamation Suit Against Scott Jennings Isn't As Simple as It Seems appeared first on Reason Magazine.
© Doug Mills/The New York Times
© The Ezra Klein Show
John Swinney and Rhun ap Iorwerth say devolving power further is up to Holyrood and Senedd – not Westminster
Scotland and Wales’s first ministers have told Andy Burnham that decisions on local devolution rest solely with their parliaments, in response to the prime minister’s push to extend English-style regional powers across the UK.
After Burnham held discussions in Glasgow with John Swinney and Rhun ap Iorwerth about localised employment and reindustrialisation powers, Downing Street characterised the talks as constructive.
Continue reading...
© Photograph: Russell Cheyne/PA
© Photograph: Russell Cheyne/PA
© Photograph: Russell Cheyne/PA
© Hilary Swift for The New York Times
Early voting is still ongoing in Washington, D.C.'s elections, but everyone already knows who the winner of the mayoral race is going to be.
In June, Councilmember Janeese Lewis George won a commanding 54 percent of the vote in the Democratic primary. In one of the bluest cities in America, that all but assures she'll be the next mayor.
She will replace retiring three-term Mayor Muriel Bowser, who has developed a reputation for a go-along-to-get-along administration, neither a bold good-government reformer nor a progressive activist.
Her successor is more ambitious. Lewis George is a card-carrying member of the Democratic Socialists of America in the mold of New York City Mayor Zohran Mamdani (whose endorsement she sought). Her campaign platform called for more childcare subsidies, more housing subsidies, more rent control, more taxes, and, perhaps most importantly of all, a more confrontational approach to President Donald Trump.
For the past several months, District politicos have been furiously trying to read the tea leaves on what a Lewis George administration will look like in practice.
Will D.C.'s precarious fiscal situation and tense relationship with the Trump administration force her to moderate? Or will she stick to her ideological guns come hell or budget crisis and federal takeover of the city?
When it comes to spending, Lewis George has the biggest ambitions and the least room to maneuver.
As D.C.'s Democratic mayoral primary was wrapping up, the District was also in the midst of a bloody fight over its FY 2027 budget.
Bowser had proposed some $450 million in cuts to bring the budget into balance as required by law. The D.C. Council, with Lewis George's enthusiastic support, rejected those cuts and filled the gap by tapping one-time revenues and the city's fiscal reserves.
Bowser let the budget bill become law without her signature in late June, warning in a letter that the council's rejection of her cuts would leave an $837 million fiscal cliff come the next budget cycle.
Lewis George, by now the presumptive mayor, clapped back with her own statement calling Bowser's proposed cuts "devastating" and "irresponsible."
In the run-up to the general election, she's promised to balance the budget and enact her new spending programs without having to raise taxes on working and middle-class residents.
This will allegedly be accomplished through "forensic" audits of government departments to identify inefficient spending.
As we learned with DOGE, however, the fraud, waste, and abuse fairly often fails to deliver the money needed to cover new permanent spending programs or tax cuts.
In this way, Lewis George's position is similar to that of fellow DSAer Mamdani in New York, who came into office with grand spending pledges, fiscal gaps to close, and only so much room and power to raise taxes.
Mamdani, at least, has a relatively friendly partner in the form of New York Gov. Kathy Hochul, who's assented to some new taxes and state aid to the city's budget.
Lewis George is likely to benefit from a Democratic takeover of Congress, which will be more likely to assent to local tax increases. But for her first two years in office, she'll still be left dealing with a Republican president who's proven remarkably willing to interfere with local D.C. policy.
The most thankless task a D.C. mayor can have is appeasing a Republican president. In his second term, Trump has made this task more thankless still.
In August 2025, he surged federal law enforcement personnel and National Guard members onto D.C. city streets and placed the city's Metropolitan Police Department under federal control as part of a showy anti-crime crackdown in the District.
Under the Home Rule Act, which established D.C.'s elected municipal government, Trump was well within his rights to federalize MPD for a period of 30 days. But the president made a number of comments about how he might try to extend his control over the police department for longer still.
The move outraged the liberal city. Protests were held. Sandwiches were thrown. Stickers and yard signs demanding the feds back off appeared everywhere.
Bowser, whose control of MPD was being usurped, largely tried to calm everybody down. At a press conference on the day that Trump announced federalization of the police, she described the move as "unsettling and unprecedented."
But she also vowed to cooperate with the administration and even said that increased police presence in some areas could be a "positive."
Her "tenor will be appropriate for what I think will be appropriate for the District," she said at that August press conference.
If the goal was to avoid prolonged federal control of MPD, the mayor's tenor worked. After 30 days, the mayor regained control of the department.
But that even-handed approach was not what the city's left wanted to hear.
Lewis George called it an "outrageous action" and vowed to fight the "weaponization" of Home Rule.
In a Democratic primary in which voters were eager to vent their frustration at the new administration, this undoubtedly helped her.
In the days before the primary, Trump threatened an end to Home Rule if Lewis George won the election. "Residents said to me, 'If Trump doesn't like you, I love you,'" she told a reporter in response.
Here too, there remains an open question whether Lewis George will continue to play the role of Trump foil once in office. Fighting the administration at every turn would cause the new mayor a lot of headaches. It was also, to a large degree, what she was elected to do.
Thus far, Lewis George has been somewhat cryptic about what her posture toward the White House will be.
"I'm willing to work with this administration to the benefit of D.C. residents, and I'm willing to stand up to this administration when it comes to just that," she told Fox 5 in late October.
Mayor of D.C. is generally not a great job to have for a left-wing ideologue to have. You have to balance your budget. You can't print money. Taxpayers and capitalists can escape your redistributive schemes by moving a couple of metro stops away. We don't even have any agricultural land to collectivize.
Bowser, like her last couple of predecessors, understood that paying for a large city government required keeping economic growth up and keeping the occupant of the White House happy.
Neither will be an easy task for the next mayor.
The city's economy is already in a slump. Unemployment is up. Housing development is down. And Trump has threatened time and again to end D.C.'s Home Rule and run the federal government directly.
One would hardly choose a DSA member with a long list of expensive new programs to fund and an eagerness to "fight" as the ideal mayor for the moment.
A potentially telling moment came in October, when Lewis George called for delaying consideration of a bill that would have eventually allowed autonomous Waymo taxies onto city streets. The jobs of existing drivers were too important, she said.
People who are already nervous about a left-wing mayor saw in the announcement a signal that she would not bow to reality and sensibly moderate once in office.
For an already troubled city, that would spell more trouble ahead.
The post After 11 Years of Muriel Bowser, D.C. Readies Itself for Its First Socialist Mayor appeared first on Reason Magazine.
The factual allegations, from a Sept. 2025 decision in the case by Judge Susan Illston (N.D. Cal.) (the case is Radice v. Jerusalem Boxing Club, LLC consolidated with the federal government's U.S. v. Harara):
The Jerusalem Coffee House [which Harara owns] is a business establishment open to the general public. The coffee house is located on the premises of the East Bay Community Space, "which regularly hosts events that are open to the general public for exhibition or entertainment …."
According to the complaint, on June 10, 2024, Michael Radice—who is Jewish—went to the East Bay Community Space "for the purpose of viewing the establishment for a fundraising event for his organization." Radice was wearing a dark blue baseball cap with a light blue Star of David and white Hebrew lettering. As he approached the community space from the side where the coffee house is located, a man sitting at a table in front of the coffee house asked, "Are you a Jew?" Radice answered in the affirmative. The man then asked, "Are you a Zionist?" Radice declined to respond.
The complaint alleges that "[t]he man then began shouting numerous accusations at Mr. Radice, including that he was complicit in Israel's military actions in the Gaza Strip following the October 7, 2023 Hamas attacks and guilty of 'killing children.'" As Radice began to walk away, the man stood up and asked, "Where are you going?" The complaint alleges, "Mr. Radice saw another man, whom he later learned was Harara, walk out of the coffee house and speak to the man, and the two went inside." …
On August 3, 2024, Radice returned to the East Bay Community Space to attend the fundraiser for his organization. Before doing so, "he entered the coffee shop to purchase a cookie, which he hoped would be seen as a sign of goodwill." He was not wearing the baseball cap he had worn previously. Behind the counter were Harara, the man Radice had previously encountered, and a third employee. Before Radice could place his order, the man from the prior encounter stated, "You're the guy with the hat. You're the Jew. You're the Zionist. We don't want you in our coffee shop. Get out."
And now from Judge Thomas Hixson's Report and Recommendation yesterday:
There is no dispute that Defendant Abdulrahim Harara violated at least six discovery orders. Motion at 4-7 ("Harara has flouted at least six discovery orders," and enumerating the violations); Opp. at 7 ("But the question on this motion is not whether any order was violated; it is whether the record as a whole shows the kind of deliberate, deceptive obstruction that makes a fair trial impossible and justifies ending the case without one.")….
The real issue is what remedy the Court should impose for the serial violations of its discovery orders. The impact of Harara's conduct basically falls into three buckets: documents were produced late that should have been produced earlier; some document productions are incomplete; and there has been a wholesale failure to produce email. But having reviewed the voluminous evidence submitted in support of Radice's motion for sanctions, the Court thinks truth is available to the parties, and they should go ahead and have a trial on the existing record.
Harara's biggest failure in discovery is the nonproduction of email, and he does not have a good excuse. In many cases the total failure to produce email would justify terminating sanctions or at least adverse inference instructions.
But the Court is skeptical that this is such a case. The relevant events are alleged in-person refusals to serve Radice and another individual because they are Jewish. In other words, the relevant events did not occur by email. Before email existed, public accommodation discrimination claims like this were tried the old fashioned way: The participants in the alleged events testified, and the trier of fact decided who to believe. That option is still available here.
Email is still relevant, of course, because it could contain statements about what happened, or have evidence of the defendant's allegedly prejudicial intent. But here a lot of that type of evidence was produced in the form of Harara's text messages and social media feeds and other electronic records. These include a statement that seems to be by Harara that seems to say he throws pennies on the ground when Jews walk by; the coffee shop menu and outdoor signage with inverted red triangles, which Radice alleges is a symbol used by Hamas to mark Israeli targets in propaganda videos; the apparent introduction on the one year anniversary of the October 7 attack of a juice item named for a mastermind of the attack; a video of Harara telling a Jewish customer to leave because he had "a violent hat," referring to the Star of David on the hat; and a repost by Harara to his X account bearing the "Bay Area" screen name of a November 2, 2024 post calling that same Jewish customer "a genocidal, bottom dwelling Zionist scum" who "should be kicked out of every public establishment not just Palestinian owned ones!" There are also text messages that replicate the kind of thing a plaintiff would dream of finding in a defendant's emails—and certainly at trial Radice and the United States will argue these texts are strong evidence of liability.
Radice is certainly of the view that he has uncovered good evidence, even if it was produced later than it should have been, and even though it does not include email. See Motion at 15 ("The 6134 Bates-labeled pages and 2474 native files that Harara produced on or after August 7 include inflammatory documents that Harara willfully withheld until after discovery closed."); id. ("For example, a January 3, 2025 JCH Instagram post shows JCH advertising for sale a t-shirt featuring the Jerusalem Coffee House name ringed by flags with the emblem of Hamas, a designated terrorist organization dedicated to violence against Jews and Israelis."); id. ("His Instagram direct-messages contain both antisemitic tropes and antisemitic slurs.").
With all this evidence, can it really be said that Harara's failings in discovery have prejudiced Plaintiffs to such an extent that a meaningful and fair trial is no longer possible? That adverse inferences are needed because there is not enough evidence for the trier of fact to reliably draw conclusions about what happened?
No. These cases are about whether a coffee shop committed discrimination, and Harara has produced enough documents that Radice and the United States have what they need to go to trial. Even with the nonproduction of email, it is not true that discovery failed or that truth cannot be ascertained. The public policy in favor of deciding cases on the merits applies here.
Accordingly, the Court RECOMMENDS that the district judge DENY the request for terminating sanctions because there's just no need or basis for it. The Court DENIES the request for adverse inferences because it is essentially a request for a directed verdict. Each side should put on their case at trial, and truth should be determined in the normal way. There is no reason for the Court to stack the deck.
But that doesn't mean Harara escapes sanctions. He needs to pay for what he did. His serial violations of Court orders significantly drove up Radice's cost of litigating [the case]. Radice requests $166,500.50 against all Defendants. The entity Defendants have been in default during the period of time when Harara violated the Court orders, so are not the cause of Radice's increased legal expenses, and therefore will not be sanctioned.
Plaintiff's counsel's rates are reasonable. However, both the Benesch and ADL attorneys seek fees for work that preceded the violations of the Court orders, a problem that requires deducting about a third of the Benesch time and about a fifth of the ADL's time. That brings the total down to $118,000. In addition, even though Harara violated multiple discovery orders, it is also true that Plaintiff's counsel litigated [the case] with excessive ferocity. At times it seemed they were not just litigating a discrimination case but were out to destroy Harara. As a result their fees were excessive. The Court estimates that about half of the fees Radice incurred during the time when Harara was violating the discovery orders was due to the violations and the other half was for work that would have needed to be done anyway or that should not have been done at all because it was excessive. Accordingly, the Court SANCTIONS Harara in the amount of $59,000 and ORDERS him to pay that amount to Radice within 30 days.
In his opposition, Harara proposes some remedial measures. However, the Court will not adopt any of them. The proposal to remedy the lack of email production presupposes that Harara will have a lawyer to represent him. Opp. at 16 ("The full inbox Mr. Harara exported on September 3, 2026 will be reviewed by counsel, consistent with the Court's ruling that counsel rather than Mr. Harara conduct that review. That counsel will be either counsel Mr. Harara retains or volunteer limited-scope counsel appointed through the Court's Federal Pro Bono Project under General Order 25, to which Mr. Harara respectfully requests referral. Since his counsel withdrew, Mr. Harara has contacted lawyers and legal organizations and has not found a lawyer who will take his case."). However, Harara's inability to work cooperatively with two sets of counsel means this is an unrealistic proposal. And if no lawyer represents him, Harara's proposal contains no particular deadline by which emails would be produced. Opp. at 16 ("If counsel has not been retained or appointed within 30 days of the Court's order, Mr. Harara will file a status report every 14 days thereafter. In all events, the production under this paragraph will be complete within 90 days of the Court's order; if it is not, Mr. Harara will show cause why not, and the Court may then impose such further measures as it finds appropriate after notice and an opportunity to be heard.").
Harara's proposal to serve further interrogatory responses is highly unlikely to achieve anything. And there is no need for a further deposition of him; Plaintiffs' counsel can cross-examine him at trial….
The post Discovery Sanctions Recommended in "Are You a Jew? … Are You a Zionist?" Case appeared first on Reason Magazine.
Democrats appear to have a larger advantage among early voters than in previous years, but GOP could turn out well on Election Day.
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