Monthly Archives: December 2008

“Democrats Seek to Block Appointee to Obama’s Seat”

The NY Times offers this report. My own view on the situation, as summarized in this post at the Wall Street Journal law blog, is that it will take a 2/3 vote of the Senate to expel Burris, should he present himself to the Senate. (That is, I don’t think the Senate could exclude Burris on a majority vote, given the holding of Powell v. McCormack.) However, Jan Baran is right that the Senate could drag on an investigation before seating Burris for some time, and there’s a chance for a lengthy court fight before that if the Illinois Secretary of State refuses to certify Burris’s appointment.

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Andrew Appel has sent along the following comments via email:

    Sequoia Voting Systems, Inc. has made false statements about me in two recent press releases. They claim that I violated a Protective Order; they claim that I was ordered to apologize to Sequoia; and they claim that the Court ordered sanctions against me. None of these is true.
    On November 21, 2008, I agreed to a consent decree, apologizing to the Court, not to Sequoia, “to the extent the terms of the protective order were not complied with.” Judge Feinberg said on the record that this is “not a sanction.” Judge Feinberg never concluded that I violated the order, notwithstanding her preliminary statements (quoted by Sequoia) about her preliminary inclinations prior to the full hearing.
    The Protective Order in question is a complicated and ambiguous document (much more so than other Protective Orders that I have been bound by when serving as an expert witness in other cases, such as the New York v. Microsoft antitrust case). The P.O. has two goals, broadly speaking: (1) for an unlimited time, to prevent leakage of Sequoia’s trade-secret Source Code and other trade-secret Confidential Information (2) for a limited time, to prevent the release of, and public discussion of, the conclusions of my examination–until 30 days after I delivered it to the Court, to the State defendants, and to Sequoia–so that those parties could have time to prepare their response.
    I have never leaked Seqouia’s trade-secret Source Code. I did not release my report before the date ordered by the Court. I did not discuss my conclusions in the media before that date.
    Sequoia is making its accusations based on two incidents that Sequoia interprets as violations of the Protective Order, but that I do not believe are violations. (1) In August 2008, I asked Professor Edward Felten, who was also serving as an expert witness for the Plaintiffs, to review my report. Since the report did not contain trade-secret information, and since his review of my report did not constitute “publicizing in any media”, there is no violation there. (2) One day before the authorized release date, in an affidavit filed in a Louisiana Court, I mentioned the existence of that report and characterized in one or two sentences one conclusion of that report; this conclusion overlapped with statements I had already in public over a year previously. There was no public discussion of this affidavit either in the media or in the blogosphere, and certainly not in the 24 hours between the time it was filed in a Louisiana Court and the time that the New Jersey Court authorized public release of my report. Thus I believe there is no violation there either.
    Sequoia may believe that these are violations; the Court did not reach any such conclusion. Sequoia should not continue to falsely claim that the Court sanctioned me for these incidents, nor that the Court ordered me to apologize to Sequoia, or that I did so. None of these assertions is true.
    Andrew W. Appel
    Princeton, New Jersey
    December 24, 2008

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