Law posts

Amen. Last week, the Times did a lengthy piece on Chief Justice Roberts' machinations behind the scenes of U.S. v. Trump:

In his writings on the immunity case, the chief justice seemed confident that his arguments would soar above politics, persuade the public, and stand the test of time. ... But the public response to the decision, announced in July on the final day of the term, was nothing like what his lofty phrases seemed to anticipate.

Both conservatives and liberals saw it as an epic win for Mr. Trump. The former president and his supporters exulted over the decision, which greatly expanded presidential immunity and pushed off any trial until well after the election — if ever. To Democrats, the Republican-appointed justices were brushing away the violent Capitol attack and abandoning the core principle that no one is above the law. The chief justice, who had long said he wanted to keep the court out of politics, had plunged it more deeply in.

Roberts really comes off as a dipshit in this. Reading the piece, I kept thinking of Deep Throat to Bob Woodward in All the President's Men: “The truth is these are not very bright guys, and things got out of hand.”

Anyway, the above Thread made me laugh. It would be amusing if Biden disabused Roberts of his notion that his jurisprudence was anything other than dipshit.

“I have practiced criminal law for over 20 years, and I have tried and won cases as both a federal prosecutor and criminal defense attorney. I've almost never seen the defense win without a compelling counternarrative. Jurors often want to side with prosecutors, who have the advantage of writing the indictment, marshaling the witnesses and telling the story. The defense needs its own story, and in my experience, the side that tells the simpler story at trial usually wins.

”Instead of telling a simple story, Mr. Trump's defense was a haphazard cacophony of denials and personal attacks. That may work for a Trump rally or a segment on Fox News, but it doesn't work in a courtroom."

-- former federal prosecutor Renato Mariotti, now a partner at Bryan Cave Leighton Paisner in Chicago, in a New York Times Op-Ed

About 10 years ago I interviewed class action attorney Steve Berman who initially flummoxed me by giving 10-second answers (rather than 10-minute answers) to every question. But that's his philosophy: KISS. Keep It Simple, Stupid. The Stupid in this case was Donald Trump. 

“I did my job. Our job is to follow the facts without fear or favor and that’s what we did here.”

 -- Manhattan DA Alvin Bragg, after former president Donald Trump was convicted on 34 felony counts by a jury of our peers

GUILTY GUILTY GUILTY GUILTY GUILTY GUILTY
GUILTY GUILTY GUILTY GUILTY GUILTY GUILTY

That's 30 guiltys? I'll leave the last four to the inimitable Mark Slackmeyer in an early Watergate-era “Doonesbury” in which, in student radio reporter mode, he talks up the fact that all evidence currently points to former Attorney General John Mitchell being guilty in both the Watergate crime and its cover-up. And then the great, justifiably famous last panel, where he just can't help himself.

That's all of us today. Most of us. Enough of us. 

I was at the Mariners game when I saw, via Threads, that a verdict had been reached in Donald Trump's porn-star hush-money trial, and then waited out the results. And it was ... guilty? Who said it? Someone I trust? A newsperson? And on how many of the counts? I googled it but they had nothing so I went back to Threads. And it was the newspeople posting this. And trial watchers. And lawyers like George Conway. And it was more than one count. They kept coming in. Guilty, guilty, guilty... And finally someone just said it: ALL 34 COUNTS.

By all reports from various legal experts, this was the weakest case against him. And look how it turned out. There's three more.

Of course, the left being the left, they can't help but not enjoy the moment. “He can still run for president...” Yeah, no shit, Sherlock. “This might actually help him politically...” Yeah, but not our concern. You do the right thing, and you keep doing the right thing, and maybe something will pan out in the end. If America goes down, at least it won't be from its judicial system. The one-time most powerful man in the world was convicted in a court of law by 12 ordinary citizens and faces prison time as a result. That is something to celebrate. 

The Mariners lost their game 4-0, but America and the rule of law won 34-0. 

“It's important to recognize the historical moment: that notwithstanding all the dilatory tactics, the delays, the whining, the yelling, the motion practice, that even though you have three trials that are delayed for some reason—whether it's the Supreme Court or this ethics issue that was raised in Georgia, or other appeals issues in the DC case—this trial is going forward, and someone who was the president of the United States, aspires to be the president of the United States again, with secret service agents in tow, is finally facing accountability. ... That's something I think is important and special to acknowledge.”

-- former U.S. attorney for SDNY Preet Bharara, on his podcast “Cafe Insider,” last week as voir dire began in the Trump hush-money trial in Manhattan

Voting rights attorney Marc Elias recently posted an excerpt from a 2022 New Yorker profile of him on social media. Worth reading the excerpt:

One evening, when I was talking to Elias, trying to glean what he does when he isn't working—nothing, apparently, except play with his four dogs (Frost told me that Elias “probably needs more hobbies”)—he told me a story. It was about a man whom Elias met around the time of his bar mitzvah. “This guy, an American prisoner of war, who was Jewish, in Nazi Germany, was put in a work camp where he had to pick potatoes,” Elias said. “He and the other men would take little pieces of barbed wire from the fence, and stick holes in the potatoes” to make them more perishable. “Just imagine an undernourished prisoner of war, in a thin uniform, with no gloves, in the winter, taking barbed wire in his bare hands and poking holes so the potatoes would rot and the German Army would not have fresh potatoes.”

This is what Elias recalls when people say that his litigation won't make a difference, or that he's bringing too many cases during a time when the courts lean overwhelmingly conservative. “I'm still going to try,” Elias continued. “It may not work. But I'm going to poke holes in the potatoes for as long as I have to, until democracy is either safe or I no longer can serve any useful purpose.”

Worth reading the whole profile, entitled “The First Defense Against Trump's Assault on Democracy,” by Sue Halpern.

BTW, I can't imagine meeting or knowing Elias and your reaction to his work—to his face!—is “It won't make a difference,” rather than shame that you yourself are not doing more. 

Via Preet Bharara's Cafe Insider site, former U.S. attorney and current law professor Barb McQuade talks up the continuing difficulties of determining, for legal purposes, what exactly social media companies are. 

Are they town squares, where anyone can speak? Are they publishers, which can regulate content? Can states such as Texas and Florida, in the NetChoice v. Paxton and Moody v. NetChoice cases currently before the U.S. Supreme Court, pass laws saying they can't regulate content because they are in fact town squares, and doing so would impinge upon free speech?

My decidedly non-J.D. thoughts: Social media platforms are both town square and publisher, and of course they can regulate user-created content, and Texas and Florida saying they can't is the violation of free speech, not the other way around. I'd go further and amend the immunity conferred to platforms by Section 230 of the 1996 Communications Decency Act, which made them not liable for user-created content the way publishers are liable. I'd actually like to see the world where that immunity was never conferred in the first place. I get the feeling it would be a good sight better, or at least less disingenuous, than this one.

McQuade makes her own case for how to better regulate the Facebooks of the world, including:

• Requiring social media companies to disclose their algorithms
• Requiring disclosure of paid content: not only who is paying for ads, but the communities they are targeting

God, yes. This experiment is not working, kids. We were never ready for it.

Yesterday, after I texted a friend of mine the above number—the amount a jury told Donald Trump he had to pay writer E. Jean Carroll for defamation, or defamation after the fact, or defamation after the facts had found for a first defamation—my friend responded in the weary manner of people on the left: Yes, but will she ever see it? Which, yeah, I get. Trump can appeal, Trump can delay—and he's good at appealing and delaying—but at least here he has no case to appeal because his parking-garage lawyer didn't set it up to be appealable. She needed to introduce evidence correctly, or offer objections at the right moment, and she didn't do these things. So appeals may be shorter and more pointless than normal.

More important: Give us this moment. For god's sake. Let's bask in it. Let's enjoy it. 

Here's some basking: a good article from Eric Lach over at The New Yorker. I'm basking in the headline alone: “Nine Regular People Tell Donald Trump to Shut Up and Pay Up.” How perfect is that? Lach references it near the close while also taking a swipe at the GOP:

After taking a close look at the facts, nine people picked at random determined that Trump was responsible for what he did, and needed to be punished for it. In this, the jury has gone further than the United States Congress was able to go. It gives you some kind of hope.

Why $83.3 million? Because Carroll had good lawyers, led by Roberta Kaplan, whom, in my day job, we covered nearly 10 years ago. Maybe it's time to do it again.

It's a huge number. Last spring, after hearing a related case that Carroll brought against Trump, an earlier jury had also sided with Carroll, concluding that Trump had sexually abused her and then defamed her—but the award in that case was five million dollars. During this second trial, which began in mid-January, Carroll's lawyers emphasized that Trump's attacks on their client continued, even after the first jury found against him. “This is a fake story, made-up story,” Trump said at a CNN town hall last spring. “What kind of a woman meets somebody and brings them up and within minutes you're playing hanky-panky in a dressing room?” If anything, the attacks escalated after the last trial. “For more than four years, he has not stopped,” Shawn Crowley, another of Carroll's lawyers, said. “How much money will it take to make him stop?” Kaplan, during her closing arguments, reminded the jurors that Trump claims to be a billionaire. “It will take an unusually high punitive-damages award to stop Donald Trump,” she said. She suggested at least twenty-four million dollars. The jurors came to $83.3 million all on their own.

Trump is still the presumptive GOP nominee. But I'm enjoying a moment of well-deserved comeuppance for shit stain of a person. Let there be many, many more.

Yesterday, Donald Trump and his attorneys showed up at the D.C. Circuit Court to argue that presidents, once they leave office, and assuming they haven't been impeached and convicted in Congress, are absolutely immune from any official actions taken while in office.

It's an attempt to dismiss ... which case again? Right. The D.C./Jack Smith case: obstructing the 2020 election. As opposed to the Florida case (classified documents), the Georgia RICO case (conspiring to overturn the results in the 2020 Georgia vote), and the NY case (hush money to a porn star). Hard to remember them all. 

But yes, that's what they're arguing. It took about two seconds for one of the three circuit court judges, Judge Florence A. Pan, to bring up the obvious hypothetical:

“Could a president order SEAL Team Six to assassinate a political rival? That's an official act—an order to SEAL Team Six.”

Trump's lawyer, after much waffling, basically owned up to that.

What I love? The argument is not just an unethical argument that goes against the entirety of American democracy and rule of law; it's also monumentally stupid—for Trump. If it worked, if it became law, the first political rival who could be assassinated would be Trump. Trump's team is basically imploring the court to assign kingly powers to BIDEN.

Which ... might not even be that bad. It could solve a lot of problems. Send SEAL Team Six to get rid of Trump, half the Republicans in Congress, and all Republican appointess on the U.S. Supreme Court. Then, with true jurists, relitigate and overturn. Done and done. Now let's tackle global warming. 

But I shouldn't joke. As Joyce Vance said on “The Cafe Insider” podcast with Preet Bharara: “If the Supreme Court were to rule for Trump before we would even theoretically get to a new Trump presidency, Joe Biden could take steps that would prevent that from happening. ... In so many ways, this has always felt like a non-starter to me. Because if you think about what it means for Trump to win this argument, it essentially means the end of democracy as we know it.”

FURTHER READING:

• “Trump's Lawyer Walked Into a Trap” by George Conway III on The Atlantic site
• “Trump's Boldest Argument Yet: Immunity From Prosecution for Assassinations” by Adam Liptak in The New York Times

Sometimes you look at certain people on the national or world stage (particularly U.S. Republicans, these days) and wonder where the hell they came from. Thanks to Public Notice, we have an answer for at least one of them: Jenna Ellis, the Trump election-fraud attorney who pled guilty this week to “one felony count of aiding and abetting false statements in Fulton County Superior Court.” She got five years probation, was fined $5k, and has agreed to cooperate with prosecutors in testifying against her co-defendants. One assumes that's not-good news for Rudy Giuliani and Donald J. Trump.

So where the hell did Jenna Ellis come from?

• In 2011, she graduated from the University of Richmond School of Law
• In 2012, she became a deputy DA in Weld County, Col., working mostly traffic court
• Six months later, she was fired from same for “unsatisfactory performance”
• Won an unemployment claim even though the examiner agreed with the cause of dimissal: “... the officer found that Ellis had only 'committed an irreparable egregious act' in a small portion of her cases and was 'performing the duties to the best of her ability' given the 'deficiencies in her education and experience.'” (<-- Yes, this.)
• Six-month stint with discovery processing company
• Several years as pre-law adviser at Christian college; wrote several Christian-themed, anti-homosexual books
• “Then it was on to gigs at rightwing Christian outfits, including James Dobson's Family Institute and the Thomas More Society, which got her booked for conservative media hits.”
• In 2019, Trump liked what he saw of her on Fox News and she joined his reelection campaign
• In 2020, she attempted to undermine American democracy

Not exactly a great CV. Throughout, she's lied about her credentials while whapping people with the Bible. Public Notice suggests that while she's pled guilty, and despite the waterworks, she's hardly contrite. Will be interesting to hear her testimony next year.

“He’s had lawyers abandon their ethics for him for decades. And he puts enormous pressure on lawyers. That’s why Trump went through a lot of lawyers, in my own view. ... Trump has no ability to be grateful. Gratitude is something that does not exist in his narcissistic world. So, the fact that these people are sacrificing their lives, reputations, and careers, that will not register with him.“

-- former Trump attorney Ty Cobb, who repped Trump without getting into legal trouble on his own, to Politico, on the day that former Trump attorney Jenna Ellis joined Sidney Powell and Kenneth Chesebro in pleading guilty to charges stemming from attempts to overturn the 2020 presidential election results in Georgia. In my day job, we featured Cobb back in 2015, when the world was young. He was a D.C. lawyer with strong Kansas ties, and that name, so of course called the feature ”The Kansas Peach.“ 

From later in the Politico article: ”...all three lawyers pleading guilty in the Georgia case have agreed to surrender relevant documents to prosecutors..."

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.