Law posts

The GA mugshots, per CNN: RICO, no suave.

The first thing I thought when Judge Tanye Chutkan announced the court date for Trump's Jan. 6 criminal trial—the one in D.C., as opposed to the ones in NYC, Miami or Atlanta—was: Isn't that the old Inauguration Day? From like early in our history through Franklin Roosevelt's first term? It is. Or was. Lincoln was inauguarated on that day. So was Jefferson. In fact, ever since Adams, our No. 2 man, until and including FDR, that was the day. Then life quickened and a five-month lame duck session seemed overlong, so it was shifted to Jan. 20—my birthday.

Not many people have mentioned this coincidence. I guess you pay more attention to Inauguration Days when they include your birthday. That said, I hope next March 4 we inaugurate the fucker—and not into the office he hopes to hold.

FURTHER READING:

• No court date was set for the 19 defendants involved in the RICO election matter in Georgia. But then one of the 19, lawyer Kenneth Chesebro, demanded a speedy trial, and Fulton County DA Fani Willis said “How's Oct. 23?” and the judge said yes. So now Trump is moving to sever his case from Chesebro's. Per Jennifer Rubin: “Chesebro's ability to go to trial so quickly might harm Trump's protests that he will need years to prepare.”
• And what's the deal with former Trump Chief of Staff Mark Meadows taking the stand? He wants his case to be federal rather than state, and apparently needed to argue his point. But that point—overturning the election results in Georgia was part of the job description—might well fly on Fox News but it's a little more doubtful in a court of law. Rubin again: “Most damning, Meadows's direct involvement with the phony electors could not possibly have fallen within any official duties, since selection of the electors, certification of the votes and eventual counting of the electoral votes constitutionally do not include the president. These duties are left to the states and to Congress. Not surprising, Meadows could not explain how that conduct related to any of the president's duties under Article II.”
• Peter Sagal (yes, of NPR's “Wait, wait...”) writes for The Atlantic about the Trump cult, and cults in general, and how the inculcated are weaned from the source of their malediction. Answer? Not easily. He thinks Trumpists may just die off. He also points to the dispirited rallies as a sign that some may be quiet quitting: “They stop posting Facebook memes, put away the MAGA hat, get back into cooking or sports or whatever it was that interested them before Trump. As said, it's tough to admit you've been conned, so they don't publicly denounce their former beliefs—unless, of course, they're trying to get a lighter sentence.”

I read Prof. Gary Bass' Op-Ed in The New York Times on Monday about Jack Smith, the special prosecutor in l'affaires Trump, and particularly liked his lede. It gets right to it:

Donald Trump openly flatters foreign autocrats such as Vladimir V. Putin and Crown Prince Mohammed bin Salman of Saudi Arabia, and in many ways Mr. Trump governed as authoritarians do around the globe: enriching himself, stoking ethnic hatreds, seeking personal control over the courts and the military, clinging to power at all costs. So it is especially fitting that he has been notified that he may soon be indicted on charges that he tried to overturn the 2020 election, by an American prosecutor who is deeply versed in investigating the world's worst tyrants and war criminals.

The piece is called “What Jack Smith Knows” and yesterday we found out some of what Jack Smith knows when he issued an indictment against Trump and six co-conspirators on the following charges:

• conspiracy to defraud the United States
• witness tampering and conspiracy against the rights of citizens
• obstruction of an attempt to obstruct an official proceeding.

I.e., per the Times, Trump and Co. “employed a variety of means to reverse his defeat in the election almost from the moment that voting ended.” So what Jack Smith knows is what we all lived through two and a half years ago. Better, I guess, is what he can prove, and apparently he proved enough before a grand jury for them to recommend the charges.

NPR has a little aside in their article on the indictment that gets at the heart of it, too:

Trump, who has been summoned to appear in court on Thursday, is still the leading candidate in the Republican primary race.

We're in a court of law now, with the most serious charges you can level against someone who took the oath of office, and the press seems to have finally woken up to that fact. Slate's headline reads: “U.S. v. Trump Will Be the Most Important Case in Our Nation's History,” and Peter Baker in the Times begins his analysis thus:

What makes the indictment against Donald J. Trump on Tuesday so breathtaking is not that it is the first time a president has been charged with a crime or even the second. Mr. Trump already holds those records. But as serious as hush money and classified documents may be, this third indictment in four months gets to the heart of the matter, the issue that will define the future of American democracy.

Um ... yes? Glad to have you guys on board finally but please keep that thought in mind as you do your jobs in the months and years to follow.

But we're back to the shooting-someone-on-5th-Avenue thing. Yes, he's awful. For the millionth tiime he's awful. How do you make people see it? How do you make his support fall away? I still think the Jim Gaffigan approach is the best. Don't talk down. Talk level. “You know this... You know he's dangerous, that he lies, that he's trying to subvert democracy...” That probably didn't work either, but it's the best approach I've encountered.

It's sad to me that with all of the problems we need to focus on we have to waste time on this nothing windbag, this bloated egomaniac, this sad sack, chest-beating clown. But that's the job. Onward. 

I've got more reading to do.

“So he has been told he has the right to remain silent. We'll see how that goes.”

-- George Conway, attorney, anti-Trumper and estranged husband of Kellyanne Conway, on social media, after reading that the booking process for Donald Trump has been complete and the former president was now under arrest.

I missed being on Twitter this week, and confess that along with Googling the latest Mark Harris tweets, I also checked out what George Conway, Preet Bharara, Joyce Vance, Laurence Tribe, The Lincoln Project, et al., were saying about Trump indictment Part II. I lurked behind the scenes. Press reports about breaking legal matters tend to be too vague to my liking, whereas lawyers often cut to the heart of it.

I do recommend the latest episode of Bharara's podcast, “In Brief,” with Joyce Vance. Both are former U.S. attorneys who know a little something-something about prosecution, and, though they try to stay sober-minded, there's a kind of astonishment at how good the case against Trump is—how much evidence he has given the prosecution. At one point, Bharara calls the recording of Trump meeting with Mark Meadows' ghostwriters “the single most damning thing in the indictment.” Vance responds:

This is the smoking-gun piece of evidence in this case. This is Trump, in essence, committing a crime while he's in the room with these folks, on tape. He's actually showing classified material, that he is not entitled to have, to other people, who are not entitled to see it, while discussing his guilty state of mind and knowledge that it's a crime at the same time—it's really pretty remarkable. I can't remember ever seeing anything like this. 

They also seem to think that rumored appointed judge Aileen Cannon, who was not only tapped by Trump after he lost the 2020 election but made some very suspect calls in his favor earlier in this case, calls so bad that she was chastised by (I believe) the Fifth Circuit—Preet and Joyce seem to think she'll either recuse herself or be asked to recuse herself. We'll see.

Anyway, it was a good week.  

“Special Counsel Jack Smith alleges a few key points. First, that Trump handled the classified material exceptionally sloppily and haphazardly, including stashing documents in a shower, a bedroom, and—as depicted in a striking photo—onstage in a ballroom that frequently held events. Second, that Trump was personally involved in discussions about the documents, and in directing their repeated relocation. Third, that Trump was well aware of both the laws around classified documents and the fact that these particular documents were not declassified. Fourth, that Trump was personally involved in schemes to hide the documents not only from the federal government but even from his own attorneys. The indictment carefully lays out its case with pictures, texts, and surveillance footage.

”In sum, the indictment depicts a man who knew that what he was doing was wrong, and went to great lengths to cover it up.“

-- David A. Graham, ”The Stupidest Crimes Imaginable,“ The Atlantic 

I found out ... late yesterday afternoon? I wound up interrupting my wife's video pilates to ask 1) Has Jellybean been fed?, and 2) Did they hear the news? Trump indicted, they're guessing seven charges. Turns out it's 37. Or 38? I've seen both. And none of it is really surprising but it's amazing how airtight it all is, and again, as I've said before, the key phrases are ”willfully retained“ and ”failed to return,“ and the evidence of that seems overwhelming. And once again, Trump is not the problem. The problem is the people who buoy him up—the MAGA-heads who support him no matter how much he brings our country down, and the Republicans who are too fearful of the MAGA-heads to speak the truth. And of course who should wind up with the case? Apparently Judge Aileen Cannon, who issued such awful decisions earlier in this matter that even conservative justices were like, ”WTF?" So we'll see. But all in all it's still a good day for the rule of law. 

I went to BaBar this afternoon for a late lunch and Pho Hanoi—I've been under the weather and this is my “get better soon” comfort food—and when I returned home I saw, on Spoutible, one of the new social sites I'm trying out, a post about “karma.” “For who?” I wondered. “Oh, the Central Park Five. Why?”

And then I read this: ...following the indictment of Donald Trump by...

I tried to hold my emotions in check. Did that just mean “the eventual indictment of...?” So I went to the New York Times site. And no. That's not what it meant. I saw this beauty:

To be honest, that's a later version of what I saw on their website, but I had to go with it because it looked so good. 

Anyway, it's about fucking time. It's been a long time coming. 

Trump, true to form, railed against being INDICATED [sic].

More later. But it's a good day for America. Rule of law matters. No matter how powerful and illiterate you are.

Oh, and screw you, Steve Inskeep! For this. I will never forgive you for what you did—and didn't do—during what I hope are our worst American times.

“Individuals violate the Espionage Act when, among other things, they willfully retain national-defense documents and fail to return them to a proper government official upon request. In November, Biden's personal lawyer discovered the classified documents and returned them to the government without a request. So that statute does not apply. Biden has denied knowing that he had the documents.

”The contrast with Trump is stark. The National Archives and Records Administration first asked him to return missing documents in May 2021. The following January, Archives officials retrieved 15 boxes of government records, and on June 3, 2022, his lawyer signed a sworn statement that all documents responsive to a grand jury subpoena were being returned after a 'diligent' search. ... In August, a federal court was provided evidence that the lawyer's statement was likely false, and the court issued the search warrant that allowed the FBI to seize upwards of 11,000 documents from Mar-a-Lago. They included more than 70 documents marked 'Secret' or 'Top Secret,' some apparently containing information whose disclosure could conceivably endanger the lives of American intelligence sources overseas.

“The apparent obstruction of justice—with evidence pointing to Trump's direct involvement—makes up the serious misconduct here, more serious than a former president simply having removed documents from their proper place. Trump's lawyers repeatedly asserted in court that the Mar-a-Lago documents were 'personal,' effectively admitting that Trump took them and kept them.”

-- “Biden's Classified Documents Should Have No Impact on Trump's Legal Jeopardy,” by Donald Ayer, Mark S. Zaid, and Dennis Aftergut, in The Atlantic. Good reminders all around. I'm already sensing Republicans and even the press desperate to create a false equivalance between these two matters, while some Dems, hand-wringing all the while, seem desperate for expiation. They should just read this article and STFU. All three writers are lawyers. Ayer was deputy solicitor general under Reagan and deputy attorney general under George H. W. Bush; Aftergut is a former federal prosecutor; and Zaid is a national security attorney in D.C. We did a piece on Zaid in my day job a few years back.

“As the liberal Justices pointed out in their dissent, the Dobbs decision endangers other Supreme Court precedents. In particular, it leaves vulnerable the cases that established 'unenumerated rights' to privacy, intimacy, and bodily autonomy—rights that the Constitution did not explicitly name but that previous Court majorities had seen as reasonable extensions of the liberties protected by the Fourteenth Amendment. Many Americans have also built their lives on precedents such as Griswold v. Connecticut, the 1965 case confirming the constitutional right of married couples to buy and use contraception; Loving v. Virginia, the 1967 case declaring bans on interracial marriage unconstitutional; Lawrence v. Texas, the 2003 case recognizing a right to same-sex intimacy; and Obergefell v. Hodges, the 2015 case recognizing a right to same-sex marriage. Would Alito grant that these decisions have created reliance interests?

The anchoring logic of Alito's opinion is that rights not stipulated in the Constitution pass muster only if they have long been part of the nation's traditions. By this standard, what is to preclude the undoing of the right to same-sex marriage guaranteed by Obergefell? Tellingly, Alito furiously dissented in that case, saying that a right to same-sex marriage was ”contrary to long-established tradition.“ Indeed, Clarence Thomas, in his Dobbs concurrence, argued that the particular cases protecting same-sex marriage and intimacy, along with contraception, were very much up for reconsideration. (Thomas left out Loving, the interracial-marriage case.)

-- Margaret Talbot, ”Justice Alito's Crusade Against a Secular America Isn't Over," The New Yorker

What’s your biggest takeaway from Monday’s events?

The usual way to get documents from somebody you trust is to give them a subpoena. Almost any time that the government is trying to get documents from a corporation, they do it by issuing a subpoena, or even by informal request. With any normal civilian, you will issue a subpoena and the person will collect the documents and produce them.

You use a search warrant, and not a subpoena, when you don’t believe that the person is actually going to comply. For me, the biggest takeaway is that the Attorney General of the United States had to make the determination that it was appropriate in this situation to proceed by search warrant because they could not be confident that the former President of the United States would comply with a grand-jury subpoena. ...

Based on what you are saying, I assume that the Justice Department would need to convince a judge that a subpoena would not work. Is that accurate?

That is not accurate. The decision about whether to use a subpoena or to use a search warrant is a discretionary one made by the executive. A judge doesn’t weigh in on that. A judge doesn’t say, “I am not going to issue a search warrant because you could do this by subpoena.” That is not something that a court would weigh in on. But what the court would weigh in on is the following: in order to issue a search warrant—unlike a subpoena, where you don’t need any factual predication—there has to be a determination by a judge that there is probable cause of a crime, and that the evidence of that crime will be in the location that you seek to search.

-- from Isaac Chotiner's interview with former federal prosecutor and FBI general counsel Andrew Weissmann, following the FBI raid on former Pres. Trump's Mar-a-Lago estate Monday. Love Weissmann's use of “any normal civilian.” Things are getting interesting. 

“A federal judge said Monday that then-President Donald Trump 'more likely than not' committed federal crimes in trying to obstruct the congressional count of electoral college votes on Jan. 6, 2021 — an assertion that is likely to increase public pressure on the Justice Department to investigate the former commander in chief.”

-- from an article in The Washington Post about U.S. District Court Judge David O. Carter, who had to read over sensitive emails between Trump and conservative lawyer John Eastman to determine if they were covered by attorney-client privilege. That was Eastman's claim before the Jan. 6 committee: You can't see this correspondence because of attorney-client privilege. But such privilege is void if the correspondence relates to the commission of a crime. Carter has apparently determined that that's the case. According to the article, Eastman's legal team says that he “intends to comply with the court's order” to turn over documents.“ As Richie Valens sang, ”Let's go."

The best thing about our courts is you can't just blab on as you can before the press; the court won't take it. Remember David Boies' line about eviscerating an anti-marriage equality proponent during the Prop 8 case? “In speeches, no one got to cross-examine him.” But Boies did. And there went that guy's argument.

Last week, Donald Trump's personal $20k-a-day lawyer, Rudy Giuliani, who's been busy spouting theories of voter fraud, went back into the courtroom for the first time in decades. It didn't go well. 

Asked what standard of review should be applied, Giuliani responded “the normal one.” He said he didn't understand what “strict scrutiny” meant. He said he didn't understand what “opacity” meant, then guessed it meant “you can see.” U.S. District Judge Matthew W. Brann responded: “It means you can't.”

My favorite line from Judge Brann? 

“You're alleging that the two individual plaintiffs were denied the right to vote. But at bottom, you're asking this court to invalidate more than 6.8 million votes, thereby disenfranchising every single voter in the commonwealth. Can you tell me how this result can possibly be justified?”

Man, why can't journalists do this? 

Cut to the chase. Yesterday, Brann ruled on a request to dismiss Giuliani's/Trum's case. His ruling was basically “Fuck, yeah.” It was “Get this shit out of my court.” Here's his intro: 

In this action, the Trump Campaign and the Individual Plaintiffs (collectively, the “Plaintiffs”) seek to discard millions of votes legally cast by Pennsylvanians from all corners – from Greene County to Pike County, and everywhere in between. In other words, Plaintiffs ask this Court to disenfranchise almost seven million voters. This Court has been unable to find any case in which a plaintiff has sought such a drastic remedy in the contest of an election, in terms of the sheer volume of votes asked to be invalidated. One might expect that when seeking such a startling outcome, a plaintiff would come formidably armed with compelling legal arguments and factual proof of rampant corruption, such that this Court would have no option but to regrettably grant the proposed injunctive relief despite the impact it would have on such a large group of citizens.

That has not happened. Instead, this Court has been presented with strained legal arguments without merit and speculative accusations, unpled in the operative complaint and unsupported by evidence. In the United States of America, this cannot justify the disenfranchisement of a single voter, let alone all the voters of its sixth most populated state. Our people, laws, and institutions demand more. 

P.S. Brann is a Republican.

Trump won't go away on Jan. 20 but he will be removed from holding the levers of power; and we'll be a better country and a better world for it. 

“As with President Trump's two earlier nominees to the court, Neil Gorsuch and Brett Kavanaugh, the details of Judge Barrett's jurisprudence were less important than the fact that she had been anointed by the conservative activists at the Federalist Society. Along with hundreds of new lower-court judges installed in vacancies that Republicans refused to fill when Barack Obama was president, these three Supreme Court choices were part of the project to turn the courts from a counter-majoritarian shield that protects the rights of minorities to an anti-democratic sword to wield against popular progressive legislation like the Affordable Care Act. ...

”It was never about letting the American people have a voice in the makeup of the Supreme Court. That's what Mr. McConnell and other Senate Republicans claimed in 2016, when they blocked President Obama from filling a vacancy with nearly a year left in his term. ...

“It was never about fighting 'judicial activism.' For decades, Republicans accused some judges of being legislators in robes. Yet today's conservative majority is among the most activist in the court's history, striking down long-established precedents and concocting new judicial theories on the fly, virtually all of which align with Republican policy preferences.

”It was never about the supposed mistreatment that Robert Bork, a Reagan nominee, suffered at the hands of Senate Democrats in 1987. ...

“Of all the threats posed by the Roberts Court, its open scorn for voting rights may be the biggest.”

-- New York Times Editorial Board, about yesterday's rushed confirmation of Amy Barrett to the U.S. Supreme Court to fill the spot vacated by the death of Ruth Bader Ginsburg last month. I've said it a zillion times: Hillary Clinton's vast, right-wing conspiracy has been replaced by a vast, right-wing hypocrisy that is out in the open and doesn't give a fuck.

Follow the money. Who gives it to Graham, to McConnell, to the Federalist Society? Follow the money. 

“Since Donald Trump entered politics, he has surrounded himself with grifters and figures of gross incompetence. [Secretary of Labor Eugene] Scalia is part of a smaller cohort: distinguished conservatives who have joined the Administration to advance their own ideological goals. A graduate of the University of Chicago Law School, where he edited the law review, and a partner at the white-shoe firm Gibson, Dunn & Crutcher, where he has specialized in labor-and-employment law and administrative law, Scalia has an intellectual pedigree that most members of Trump's inner circle lack. Temperamentally, he has little in common with the bombastic President. Yet, like virtually everyone in the Republican Party, Scalia has chosen to view this Administration chiefly in opportunistic terms. His longtime agenda has been curtailing government, and at the Labor Department he has overseen the rewriting of dozens of rules that were put in place to protect workers. As the coronavirus has overrun America, Scalia's impulse has been to grant companies leeway rather than to demand strict enforcement of safety protocols.”

-- Eyal Press, “Trump's Labor Secretary Is a Wrecking Ball Aimed at Workers,” in The New Yorker. And yes, Eugene is the son of. Seriously depressing article. Make sure you read it.  

What Tucker called her doesn't matter because Tucker doesn't matter: legal ruling.

Amid the news insanity of the week—No. 1 being the refusal of the president of the United States to commit to a peaceful transfer of power, which should've been the biggest news story of the year but hardly made a peep among the usual legit-media suspects—there was, last night, not necessarily good news, but it did make me smile for a moment.

On the surface, no. On the surface, it was bad. Judge rules in favor of Fox News/Tucker Carlson in defamation lawsuit brought by Karen McDougal. I'd rather the opposite. And: Trump legal team to argue in Second Circuit in year-long subpoena of Trump's financial records by Manhattan DA. I'd rather we get the financial records finally. The financial records Trump promised to reveal when he won the 2016 presidential election, and which, ever since, he's fought in court to keep private. 

But dig a little and the stories get amusing. 

Trump's lawyers will argue before the Second Circuit that Trump's financial records are outside the purview of the DA Cyrus Vance Jr. and Vance should stick to the issue at hand: the involvement of the president of the United States in hush-money payments to porn stars and others prior to the 2016 election. That's what the president's lawyers want the case to be limited to. And the payments aren't even alleged. It's just a matter of how involved Trump was. So that's kind of amusing when you think about it. 

And then Tucker. Oh, Tucker.

Backstory. Playboy playmate Karen McDougal has claimed a year-long affair with Donald Trump from 2006 to 2007, and it came up during the 2016 election. She sold that story for $150,000 to The National Enquirer, which, rather than publish the salacious details, squelched the story. Ronan Farrow wrote about those details years later for The New Yorker. The tabloid practice is called “catch and kill,” and it was done here, apparently, because the owner of the Enquirer, American Media, Inc., ws run by the aptly-named David Pecker, who is a friend of Trump's. That's the backstory. 

Anyway, in 2018, after the Farrow article appeared, and I guess after McDougal told her story to Anderson Cooper on CNN, Tucker Carlson attacked her on his Fox News show. He accused her of extortion, which is the opposite of what happened. So she sued him for defamation. 

Yesterday, Judge Mary Kay Vyskocil dismissed the lawsuit. She agreed with the Fox News lawyers. That McDougal was an extortionist? No, that wasn't the argument. The argument, brought by Fox News lawyers, is that Tucker Carlson shouldn't be taken seriously. From the New York Times story:

In reaching her decision, Judge Vyskocil relied in part on an argument made by Fox News lawyers: that the “general tenor” of Mr. Carlson's program signals to viewers that the host is “engaging in 'exaggeration' and 'nonliteral commentary.'” The judge added: “Given Mr. Carlson's reputation, any reasonable viewer 'arrive[s] with an appropriate amount of skepticism'” about the host's on-air comments.

So that's kind of amusing. 

And not. There's still no accountability. Fox gets to call itself “News” and escape traps like this by saying, in effect, “Who are we? Nobody. We're just bullshitting. We're just a billion-dollar industry that attacks who we want for partisan reasons and gets away with it.” In effect, the judge just gave Tucker Carlson a license to lie.

Sincere follow-up for Judge Vyskocil: Would any “reasonable viewer” be watching Tucker Carlson's show in the first place?

Alito says that “sex” must be defined exactly the way that lawmakers understood that term in 1964. I'm skeptical he‘ll apply that same rule to defining what counts as “arms” when reading the Second Amendment.

— Adam Winkler (@adamwinkler) June 15, 2020

Background: On Monday, the U.S. Supreme Court ruled 6-3 that members of the LGBT community were protected under Title VII of the 1964 Civil Rights Act. In other words, they can’t be fired for being gay, bi or trans. Justice Gorsuch, of all people, wrote the decision and was slammed by textualists, who claim that the writers of the Act didn't have anyone from the LGBT community in mind when they wrote it. Gorsuch went with a straightforward interpretaton of the meaning of “sex”: “It is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.”