The right wing blogwar against Brett Kimberlin has created some strange cul-de-sacs of research before. For instance, there was the bizarre backstory to professional bigot and hypocrite Lynn Thomas; the Maryland court shenanigans and alleged teen-stalking habits of borderline-sovereign citizen William Hoge are endlessly-entertaining; and there is always the occasional Glenn Beck hanger-on or national laboratory contractor to make things really interesting in the goofiest possible ways. But all of them are nothing compared to the smoke, chaff, and flares that Intermarkets.net, a web advertising firm which claims one billion monthly page views and specializes in political campaign advertising, has consistently pumped out in an effort to conceal the identity of the blogger known as Ace of Spades (see above). Whereas Wordpress and Blogspot — both blog hosting services — have answered lawsuits before when litigants wanted to unmask pseudonymous users, imagine Google Ads trying to maintain the cloak of anonymity around a blogger whose site simply features their commercial messages in your browser. It’s a very unusual litigation arrangement — as unusual as the unicorn that is Ace of Spades.
This strange little subplot to the blogwar narrative has been going on for at least two years now, but it may finally be over soon. Pursuing his ‘color of law’ case against blogging Los Angeles Assistant District Attorney John Patrick Frey, in June Kimberlin issued a subpoena to Intermarkets for documents related to the Ace of Spades blog, Ace himself, and his billing party. Having already tried and failed to quash the subpoena once now, the Intermarkets legal team is asking federal judge George Jarrod Hazel to reconsider his decision because the subpoena “requires the disclosure of ‘privileged or other protected matter'” and “confidential information.” But courts will only privilege information if the party who wants to protect it describes the nature of the documents, testimony, sprockets, or whatever else is being withheld so that all parties can assess the claim. Even in their latest filing, Intermarkets has provided no specific information about what it is that they want to withhold — other than the real name of Ace of Spades — and no legitimate explanation of the specific harm such a disclosure would bring, other than Ace’s name becoming known.
Now, there are some possible scenarios in which Ace might legitimately want to keep his name a secret. For instance, he may have a day job at a government contracting agency of some sort; the possibilities are as mundane as, say, a hydrological engineering firm, or as prosaic as a Blackwater-style mercenary outfit. Who knows? The point is that if his life or profession would be in genuine danger upon disclosure, Ace still has to say what that problem is. And in his decision to deny Intermarkets.net’s motion, Judge Hazel even signaled a willingness to entertain a “narrower and more tailored protective order,” but only if it is filed jointly by Intermarkets and Kimberlin — essentially, Judge Hazel was willing to let the parties sign a nondisclosure agreement. Despite Kimberlin’s efforts to discuss such an arrangement as suggested by the judge himself, the attorneys for Intermarkets have dragged their feet and asked the judge to please just change his mind, pretty please?
There are a number of reasons why this is all very weird, but let’s start with the biggest one.
Face of Ace: the ‘man’ of mystery has appeared on television
A decade ago, the American Conservative Union gave credentials to a handful of bloggers so they could cover the Conservative Political Action Conference, or CPAC. As reported by James Joyner at OutsidetheBeltway.com, a certain Mr. Steve McCutcheon was listed as “Ace of Spades HQ,” seemingly giving away the identity of a person who has since appeared as a CPAC speaker and a pundit on Fox News. But Ace then threw off pursuit by indicating that the name belonged to a deceased person, after all — as if he were versed in clandestine spycraft. (And again, that may actually be the case for all we know.) For now, Ace remains a face with no name, but that bubble of mystique is poised on a legal pinnacle right now, ready to pop.
Perhaps unsurprisingly, the Intermarkets portfolio is also an entirely libertarian-conservative, oligarch-friendly, right wing affair. For instance, CEO Kevin Lucido appears to have longstanding ties with Dan Backer, the Washington, DC attorney behind the for-profit TheTeaParty.net website. Through litigation, Backer also created so-called super PACs, and later instigated the McCutcheon v FEC Supreme Court decision which effectively raised campaign donation limits higher than the median American household income. In other words, Lucido’s friend Backer is the ‘free speech’ zealot that only billionaires can love — and yes, the eponymous coal baron Shaun McCutcheon, who sued the Federal Elections Commission with Backer’s help to win the decision that will bear his name into infamy, does indeed resemble the one-time ‘Steve McCutcheon’ AKA Ace of Spades just a wee little bit, facially-speaking. But who knows if that means anything? So I’m just going to leave this here and move right along:
This would all be weird enough without the research BU has done on Ace of Spades in the past. In fact, he was the subject of one of our very first stories, which surprisingly found a she instead of a he. That’s right: aceofspadeshq.com, which redirects to ace.mu.nu, was registered by a woman named Michelle Kerr, an “expert in online communities and privacy” — as well as most other topics, apparently, because her loudmouth know-it-all performances annoyed Kerr’s classmates at Stanford’s Teacher Education Program so much that they refused to sit next to her anymore. Perhaps Kerr’s sense of entitlement arises from her relationship to cousin Bill Lerach, the disgraced class action lawyer who made a fortune on shareholder lawsuits before serving time in prison for illegal plaintiff kickbacks. Her relationship to the barely-bearded man speaking in public as Ace of Spades is unclear. Maybe she is just the electronic maid who keeps Ace’s intertubes clean? Again: who knows?
But we do know this much for certain: Brett Kimberlin is ready to proceed with discovery in this matter, while Intermarkets.net surely is not. And given the fact that Judge Hazel shaped the case this way when he left John Patrick Frey, AKA Patterico, on the legal hook, hizonner is hardly receptive to “please, pretty please” as an incentive to overrule himself. One way or another, answers to this weird little mystery are coming, because over the weekend, Ace’s brand-new counsel Mark Bailen decided to take up the defense of Ace in two different courts. (Bailen is also counsel to Erick Erickson and Breitbart News in Kimberlin’s litigation.)
We know not the day or the hour, but Ace’s name is coming out
Frey has openly bragged that he has known the person (or persons?) behind the Ace of Spades persona for years. Ace was one of the foremost water-carriers of the ‘investigation’ that Frey conducted into his own alleged SWATing — mainly by way of his blog, but also within the Dallas FBI office, where he lobbied to have Kimberlin pursued for answers. More than three years after the fact, it may be hard to remember how things were at the time, but actual Republican Congressmen were calling for actual committee investigations. Writing without a trace of irony, Ace argued that the federal legislature should skip procedures and pass a bill of attainder against Kimberlin forthwith, in clear violation of the United States Constitution, over a conspiracy theory that his friend Frey instigated and propagated.
Having crucified Kimberlin in public for allegedly causing police to be dispatched to his home under false pretenses, now that he faces an actual judge Frey wants to conduct a secret trial — and have the evidence back at the conclusion of the case so that the public he supposedly serves never gets to see it. I don’t know whether to praise Frey’s attorney Ron Coleman for gumption, or damn him for dissonance: their answers to Kimberlin’s interrogatories all say “no records available,” or object to the request being overly-broad, but the simultaneous protective order motion asking the judge to seal documents claims the files to be transferred are so tremendously huge as to justify the broadest possible protective order. Which thing is true: that there are no files, or that they are huge? What do Coleman and Frey think the judge will make of this juxtaposition, other than to conclude they are lying liars who lie, and so is Ace?
Despite the earnest efforts of multiple lawyers to pretend otherwise, Ace’s fortunes in this litigation are inextricably tied to Frey, who is a sinking ship. There is not much more that Intermarkets.net or Stephen Fowler can do to protect Ace’s identity, and Judge Hazel has zero incentive to throw any more lifelines his way. While we can’t say exactly when an order will emerge, or even how long Intermarkets.net will take in responding to it, this is definitely the endgame for Ace’s anonymity. It will be interesting to see how many mysteries get solved in the process.