Month: December 2023

2024 The year of historical trials and court decisions

by Dave

Some people try to associate court trials with other things they are familiar with and it is usually a disaster. Court cases are not like the movies. They can go on for months. It is also not a ballgame. It doesn’t end in nine innings.. Decisions are appealed.

The public knows who they like and dislike, and believes the accused should either be set free or in jail for the rest of their lives. The Republican politicians went years claiming Hillary Clinton had committed all sorts of crimes. But, finally, one Democrat has been charged with profiting from his high position, Senator Bob Menendez. His wife has also been charged. 

Hunter Biden and Steve Bannon will go on trial unless either can cut a plea agreement. These trials will be headline news, because of their close association with President Biden and Donald Trump. In both cases, there has been zero evidence these actions involved either Biden or Trump. Both will have the best lawyers money can buy, but the evidence against them will make or break their cases.

And then of course there is Trump and his two civil cases and four criminal ones. I have written extensively about this and there are many Trump legal problems trackers out there. The final conclusion of the civil case against Trump and his organization for the overvaluation of properties will end quietly, as the judge will simply file the judgment in late January and Trump will appeal. 

The disqualification issue must be decided by the Supreme Court. This case and the immunity case will be historical landmark cases. I think only 3 of the 4 criminal cases will likely be tried in 2024, with the Georgia conspiracy case, starting either late 2024 or early 2025. The Supreme Court has a number of highly contentious cases, of which I’ve commented on the abortion pill.

An independent judicial system is one. of the cherished rights of all Americans. If someone has been unjustly accused, the appropriate place to seek justice is the courtroom, not on social media or cable news stations.

So in sum, the system is working as it is intended. The appeal process is an additional check that ensures convictions are in accordance with the law and the rights of individuals are protected.  

Republican members of Congress should not be involved in any of these cases. They should not attempt to tilt the balance of justice against Hunter Biden or in favor of Donald Trump. By their meddling in trials, through their power to subpoena, they are hindering our system of justice.

I fear a re-election of Donald Trump and his disrespect for the judiciary will severely damage our judiciary system. His use of pardons for political purposes would be an attack on the sacred right of justice for all, that comes from  a conscientious and independent judiciary system. Might makes right approach whether by Congress or the President brings us one step closer to tyranny.

What will work, is an informed public who understands the judiciary has a very independent role vital to our system of government. 

Wishing the best of all in 2024,

Dave,

Presidential Immunity Case and Upcoming Trials

by Dave

My prediction : Donald Trump will lose the immunity case now in the Appellate Court. I also believe his lawyers know this. It is a delaying tactic, as Trump will appeal the case to the Supreme Court. And the Jan 6 Election Interference case may be pushed back to past the November elections. It is a real possibility.

So, does anything the Appellate Court matter if it will end up in the Supreme Court eventually? Perhaps not as I believe the Appellate Court will likely just repeat what the trial court Judge Chutkan already said in her opinion.

The Supreme Court could hand Trump a major blow, by refusing to hear the case. They could do major damage to Trump by simply not putting the trial on hold while they are considering the case.  This would allow trial to go forward on March 4, and would push back the start of the Hush Money case. 

The conspiracy case looks like it will begin after the elections. If Trump is elected, he can’t stop either the hush money trial or the Jan 6 conspiracy case because these are municipal and state criminal cases. 

He will be doing everything he can to get rid of Attorney General Fani Willis in Georgia, and District Attorney Alvin Bragg in Manhattan in these cases.r

The wheels of justice turn slowly but in the right direction at least for now. It is important that Donald Trump not be re-elected, so the process can be completed. No one gets a free “Get out of jail card.” in this country. Let the courts hear the evidence and decide based on the law and facts of each case.

Stay tuned,

Dave

Supreme Court to take up landmark cases

by Dave

These are cases in which whatever the outcome, millions of Americans will be impacted. And millions of Americans will believe that the judges are total idiots, and/or highly partisan. To begin with, they are neither. The buck stops at the Supreme Court. All judges who have been accepted to the Supreme Court are really brilliant.

Unlike the legislature and executive branch, the judicial branch at every level, issues opinions that are available to the public and can be critically reviewed by constitutional scholars, who really understand the issues. 

Two landmark cases are the Trump disqualification case and the Trump presidential immunity case. Neither one has been accepted by the US Supreme Court, but almost everyone believes they will be soon. Lawyers on both sides will be burning the midnight oil, to explain, in a million words or less, to explain why their side is right.  

Trump Disqualification Case

By a 4 to 3 ruling, Colorado Supreme Court ruled on December 20, 2023 that the Secretary of State may not include Donald Trump from the primary ballot. The ruling would also eliminate him from the general election ballot. The Supreme Court will have the final say in these cases. 

State judges can take several “off-ramps” to dismiss disqualification challenges. I call these the “Don’t let this case land in my courtroom defenses” or “Stop them at the courthouse doors.” The judge does not need to hold an evidentiary hearing if the plaintiffs have not demonstrated real injury. Second, judges have ruled in many states that these cases are premature, or as they say, are not ripe for review, because Donald Trump’s name is not on the general election ballot.

Colorado’s case went forward based on both state and federal laws and the Fourteenth Amendment to the US Constitution. State law giving the Secretary of State the right to disqualify candidates in the primary election, allowed the case to proceed. The case cleared several major hurdles in the District Court, in particular, that the violence on January 6, 2021, adequately fits the definition of an insurrection and that Trump’s actions constituted “engagement.” So, none of the normal off-ramps were taken.

However, Trump was the victor in this initial court case, because the judge concluded that the 14th Amendment did not specifically state that it applied to presidential elections. The Colorado Supreme Court reversed the judgment, arguing that the Fourteenth Amendment held for all elected offices of government, which they decided included the president. 

This case must be decided by the Supreme Court. They understand what is at stake. Suppose a similar judgment occurs in Florida, Texas, or Georgia. It has the potential to allow Biden to win, because Trump is not on the ballot. And remember, if one of the four judges disqualifying Trump had dissented, the ruling would have allowed Trump to run. It was summed up by one commentator, that voters not judges decide elections. Well, we shall see.

I particularly like a recent opinion posted on CNN. It is important to note that this opinion is not the views of CNN, and the author is not a lawyer. 

CNN Link: The Fourteenth Amendment gambit is breathtakingly foolish

Jan 6 Presidential immunity case

As part of the pre-trial motions of the January 6 case, with a scheduled start date of March 4, Donald Trump claimed presidential immunity for all actions while he was president. The trial court ruled against him, so he filed an appeal. The Special Counsel, Jack Smith, asked the Appellate Court to expedite the matter and they agreed.

Since the case will inevitably end up in the Supreme Court, Smith asked the Supreme Court to review the case, prior to the Appellate Court decision. As I was completing this post, the Supreme Court, rejected Smith’s petition without comment. This allows the Appellate Court to decide first, which will inevitably delay the start of the trial.

To leapfrog ahead of the Appeals Court or maintain the normal order. That was the question until last Thursday. Trump’s legal team wrote an excellent reply to Smith’s petition. Nothing is stronger than taking someone else’s words and using them against them. Smith argued that jumping ahead of the normal order was needed because this matter was of great public importance. Trump countered that if this is so important, it justified the Appellate Court’s review first to ensure the Supreme Court had all the facts before a landmark decision. It’s the old “haste makes waste” argument. 

The elephant in the room is the elections. Trump wants to push the January 6 criminal case to after the election. The decision by the Supreme Court and Trump’s very busy court date means it might be delayed past November.  If Trump loses again in the Appellate Court, he has 45 days to file an appeal to the full Appellate Court, and if he loses again, 90 days to appeal to the Supreme Court.

The January 6 Defendants Case

On Dec 13, 2023, the Supreme Court agreed to hear the Fischer case, which if successful, will undermine the legal basis for 2 of the 4 counts against Trump in the January 6 case. The Fischer case is also referred to as the Jan 6 defendants case because it arose from a defendant found guilty of participating in the riot on January 6. 

The case is whether the law that formed the basis of guilty convictions of over 200 defendants for attempting to disrupt an official proceeding on January 6 was really applicable. It was enacted as an anti-corruption corporate statute after the Enron scandal to prevent the destruction of documents.

For a detailed examination of the applicable law 18 USC 1512, see Lawfare post: Trump Jan 6 Indictment: The Statutes.

So, the Supreme Court, through a very narrow interpretation of the applicable law, could effectively dismiss two of the charges against Trump and the conviction of over 200 defendants in the January 6 riots. The Department of Justice has been slowly working their way up to the leadership ranks of the extremist groups, and it would terrible to see the organizers of the January 6 riots go free, based on slight interpretation differences in the words, like “corruptly” or “otherwise.”

Abortion Pill Case

The Supreme Court will decide if states can limit access to the abortion pill, mifepristone. Since overturning Roe vs. Wade, the argument is availability is a state’s issue. However, the drug has been approved for general use by the FDA. This case will have the greatest impact on abortion rights since the Supreme Court overturned Roe v. Wade. It is estimated that approximately half of all abortions in the US are medicated abortions. Plus, any ruling to limit use of a drug that has been deemed safe by the FDA, would allow states to challenge the use of any other drug on the market, making their judgment superior to the FDA.

NYT: Abortion Pill Rullings

The Supreme Court tends to leave the most controversial decisions to the end of its term, which could end in July 2024. My sense is they will act rapidly on the Colorado Disqualification Case, as it directly impacts Trump’s candidacy. A delay in the presidential immunity case would be a big gift to Trump as he would definitely get the case dismissed if he is elected president. The status quo right now on the abortion case, is the ruling on restrictions has been put on hold, so this is one that can be delayed without a major impact.

Stay tuned,

Dave

Trump’s criminal court dates

by Dave

Trump is indicted in four court cases, of which 3 cases (Federal Jan 6 case, Manhattan hush money case and Federal documents case) have scheduled start dates of March 4, March 25 and May 20, 2024. It is obvious the court dates will be rescheduled, as there is only 21 days between the Jan 6 case and the hush money case. Even the general order can change.

Georgia District Attorney Fani Willis “Trump’s RICO Case” with now 15 defendants has not been scheduled, but I think it is fair to say, it will be the last one to be heard. Willis suggested a start date of August 5. 

If Jack Smith prevails in the expedited Supreme Court case, which petitions the Court to deny Trump immunity, then it is possible the Jan 6 case will start as scheduled on March 4, and the Manhattan hush money case will be rescheduled. The order most damaging to Trump, I believe, would be to complete the two federal cases first, then go to the Manhattan hush money case.   

Trump would like everything pushed back beyond the election. He knows this won’t happen. Initially his legal team filed to have the hush money case tried in federal court, but just before the deadline on November 15, they withdrew their appeal for the venue change. If they had succeeded on appeal, Trump could have pressed the issue of presidential immunity.  But, I think they now see this case as the one to go forward in 2024, delaying the two federal cases.

The hush money case is no slam dunk. The Trump team has argued that this should not be a felony charge at all, but a misdemeanor charge. ”Bragg’s office must show that Trump’s actions were taken with the intent to commit or conceal another crime in order for the falsification of business records charges to be elevated from misdemeanors to felonies.” (Politico, Nov 16, 2023) Second, that it is based on Michael Cohen, who has been convicted of perjury and disbarred. And finally, there is an issue of the legality of extending the statute of limitations by executive order. Bottom line: the hush money case will definitely be appealed, if Trump is found guilty.

Link: Politico, Nov 16, Trump is trying to use campaign to dodge criminal consequences, Manhattan DA says

Link: Raw Story, Dec 14, How Trump’s D.C. court delay could backfire in his New York hush money trial

Trump’s team is busy preparing their reply to Jack Smith’s petition of the Supreme Court, due on Dec 20. I expect they will make a strong point to delay the immunity issue until the appellate court rules. No sense in picking up a hot potato when it is already in a lower court. Further, the petition cites “Nixon’s case” which was expedited to the Supreme Court because it concerned President Nixon’s refusal to provide documents to a special prosecutor, obviously not the same situation as Trump.

A lot of moving parts. I’m still hoping the Fani Willis conspiracy case starts prior to November 2024. It will be televised. We shall see.

Stay tuned,

Dave

Jan 6 case: Supreme Court Petitioned by Jack Smith

by Dave

Donald Trump legal team filed a motion to dismiss in the January 6 case based on absolute presidential immunity. It was denied by Judge Chutkan in a completely rigorous and thorough manner. So, Trump’s team appealed the decision.  The start date of March 4, 2024 in court was likely to slip due to the pre-trial filings.  

Jack Smith has asked the Supreme Court whether Donald Trump has immunity from criminal prosecution for alleged crimes he committed while in office. Trump’s lawyers have stated that his alleged actions over the 2020 election results were part of his official duties at the time and therefore he is protected by presidential immunity. Smith has asked this review be expedited, so the trial date can be maintained.

Jack Smith’s petition simply excerpts critical elements of Judge Chutkan’s decison. One example:

Holding a former President criminally accountable is “essential to fulfilling our constitutional promise of equal justice under the law.” 

Nothing in the US Constitution provides immunity to ex-presidents. The conservatives on the Supreme Court will have a difficult time trying to invent some special immunity for Trump, so he can evade the charges. 

In the petition, Judge Chutkan’s decision is included as an appendix. So, there are no surprises to Trump’s legal team.  Trump must respond to the petition by December 20, so the Supreme Court can decide whether to consider the case.  

See CNN link

I am hoping that the Supreme Court will rule against Trump. Presidents or other government officials might avoid prosecution for their criminal actions when they are in office. But, once out of office, they should have to be accountable. 

Stay tuned,

Dave

Smith’s brief is available on the Supreme Court website and the link below.

Brief to Supreme Court US v TrumpDownload

Hunter Biden’s Indictments

by Dave

Conservative social media and cable TV stations, have associated Joe Biden and Hunter Biden with all kind of influence peddling schemes, with zero evidence. It is not illegal to benefit from your family’s name to help secure high paying consulting jobs. It also helps to have graduated from a prestigious law school (Yale) and have worked years at a very well know law firm (Boies, Shillert, Flexner LLP).

Now, let’s move on to the facts. Hunter Biden will likely be tried in Delaware, for gun related charges, and in California for failure to pay federal taxes.

Sept 19, 2023: Delaware charges. Hunter Biden was officially indicted in Delaware on three federal firearms-related charges: two for making false statements on a firearm application form and one for prohibited possession of a firearm.

December 7, 2023: California charges. Hunter Biden was indicted on nine additional charges, including three felony and six misdemeanor offenses, for allegedly failing to pay $1.4 million in taxes between 2016 and 2019.

The 56-page filing laid out a series of charges, including allegations that the president’s son failed to pay taxes, failed to file, evaded an assessment and filed a fraudulent form. The indictment says that “rather than pay his taxes, the Defendant spent millions of dollars on an extravagant lifestyle.”

“Between 2016 and October 15, 2020, the Defendant spent this money on drugs, escorts and girlfriends, luxury hotels and rental properties, exotic cars, clothing, and other items of a personal nature, in short, everything but his taxes,” the indictment says.

See link: Hunter’s spending habits

There may be more charges against Hunter Biden in the future. One possibility is a failure to register as a foreign agent. Biden has pled not guilty to the Delaware charges, and I expect the same for the California charges.

These are serious criminal charges, and Biden’s guilt or innocence will be determined by the courts in either late 2024 or early 2025. He can try to plea bargain, but I’m not sure if the prosecutors are willing to cut him a deal. It certainly sounds like he is guilty of tax fraud and in which case, he will likely serve time. The US Department of Justice is not targeting Trump or Biden, nor Steve Bannon or Bob Menendez, but anyone who has broken to law. These are all wealthy and intelligent individuals, who when they break the law, have to suffer the consequences like the rest of us.

Remember Lady Justice carries a balance in one hand and a sword in another. I have faith in our legal system, that Hunter Biden will be tried based on the facts of the case. And he can always appeal the decision.

Neither of these indictments connect Joe Biden with Hunter Biden’s crimes. Yet Republicans in the House, act as if these indictments support their impeachment probe. It is absurd.

Stay tuned,

Dave

Disqualification lawsuits – Part II

by Dave

I just wanted to add that a website called Lawfaremedia.org is tracking these lawsuits. Five state courts have dismissed these cases, Florida, New Hampshire, Minnesota, Colorado and Michigan, with the latter two states, the dismissals are under appeal.

The map provided by Lawfaremedia.org also shows disqualification lawsuits were voluntarily withdrawn in six states, which I found odd. But there may be a good reason. All six lawsuits were initiated by John Anthony Castro, who claims to be a Republican candidate for president in the Republican primaries. I suspect these lawsuits were withdrawn because Castro knew he would lose again on the issue of standing (actual harm) and the arguments for dismissals would be pretty much copied by other judges. Or Castro might have been conserving his resources for more likely success.

Florida’s dismissal of Castro’s lawsuit was simple. Case dismissed because of issues of standing and ripeness (issue is the primary ballot prior to the election itself).

It is entirely proper that violation of our constitutional rights, including Section 3, Fourteenth amendment, barring individuals from running from office be addressed to the courts. But, the courts recognize the dangers of possibly excluding eligible candidates from the ballot.

If any single individual can make a claim in court of ineligibility based on Section 3, it would complicate our elections and thus interfering with another fundamental right of the people choosing their leaders. So, plaintiffs have a certain threshold to meet, before they get to make their case.

Thus, I do not believe any of John Anthony Castro’s lawsuits, or those from private citizens will succeed. I am pessimistic about the cases under appeal in Colorado and Michigan, as they likely will question the standing issue, and end the challenge in these states.

Each dismissal will be quickly announced by Trump’s base as a legal victory against left wing democrats. It is a fact that the disqualification effort has little chance of succeeding and was supported by both Democrats and conservative Republicans. I personally do not support this effort as I believe in the right of voters to choose their president.

Now, should any Secretaries of State exclude Donald Trump from the ballot after the parties have announce their candidates, then yes, this case will be heard on an emergency basis and likely go up to the US Supreme Court.

Stay tuned,

Dave

PS. I did not go into John Anthony Castro’s bio, but it is one full of controversy which can be googled.

Trump’s NY Fraud Case: Ends with a whimper, not a bang

by Dave

It looks likely that December 11, Donald Trump takes the stand for the defense. No dramatic end, unlike television court cases. After the judge submits a written decision, Trump’s lawyers will immediately appeal, and ask that the judgement to bes stayed (set aside) while it is appealed.

I like Politico’s conclusion, stated upfront: “Trump is fighting an uphill battle in his fraud trial. But it could be years before penalties kick in.” Next line is a mistake. The prosecution and defense will rest in December. A verdict is expected in the last week in January. This is a civil case, no one goes to jail. But the penalties are sufficiently severe that Trump may need to sell properties.

Politico: Trump is fighting an uphill battle in his fraud trial. But it could be years before penalties kick in.

Stay tuned,

Dave

The Disqualification Lawsuits

by Dave

The efforts to disqualify Donald Trump from running for president, under Section 3 of the 14th Amendment are not succeeding. It has been in the news recently, as the Colorado Supreme Court heard oral arguments on December 5, 2023. The Court can either uphold the lower court ruling, and keep Trump on the ballot, or reverse the decision, and then Trump is off the ballot. Appeals to the Supreme Court for an emergency hearing would be immediately submitted if he is taken off the ballot. Otherwise, I believe this will end the challenge in Colorado and the dismissal will be permanent.

Colorado’s district court dismissed the lawsuit, stating Section 3 of the 14th Amendment did not apply to the president. But, the ruling likely pleased petitioners in part, as the judge opined that the violence on January 6, 2021 did qualify as an insurrection.

Other lower court dismissals (Minnesota, Michigan, Florida and New Hampshire) offered a chance for re-filing. Minnesota district court considered that Section 3 did not apply to primaries. Michigan district court considered disqualification a political question, not one to be decided by the courts.

The two other cases (Florida and New Hampshire) were rejected quickly on a demonstration of actual harm if Donald Trump ran for president. In New Hampshire, an attorney, John Anthony Castro, registered to run for president, and tried to convince the court, that allowing Donald Trump on the ballot, would cause his candidacy harm. The courts didn’t buy it.

The courts in other states will take notice of the many ways to dismiss legal challenges. Certainly ruling that a case has no standing, is the most efficient one, as the court does not need to get into the more nuanced arguments of whether Trump encouragement of the January 6 violence was “engaging in insurrection.”

The basis of democracy is we select our president at the ballot box by having all eligible voters being able to cast their ballot. Excluding a candidate from even one state, could be decisive in a close election. I have posted an opinion previously that these lawsuits run counter to our democratic processes. The courts should lean towards narrow interpretation of rules and laws and restrict their role in deciding whether to exclude both voters and candidates in the election process.

Stay tuned,

Dave

Update on Trump’s Civil Fraud Case

by Dave

The defense is presenting its case, scheduled to end on December 11, with the testimony of Donald Trump. I am sure that Donald Trump has been thoroughly coached on how to respond to questions.

Prosecution has not decided to present a rebuttal, but if it does, it will be concluded in on December 12. There will be no closing arguments in court, but the attorneys will submit them in writing by January 6. Oral arguments will take place on January 11. Then, we wait for a decision.

Judge Engoron stated he hopes to file his written decision by the end of January. Of course, it won’t be pretty. In a summary judgement in September, the Judge ruled that Trump organization was guilty of fraud. This is really the punishment phase of the case. Regardless of the decision, Donald Trump will appeal.

The Court of Appeals re-instated the Judge’s gag order. I am not sure how long the gag order will be in place, but it was needed after Trump attacked the Judge’s clerk, so it may last for a long time.

The E. Jean Carroll defamation case, part 2, begins January 16. It is noted that Trump actually sued Carroll, claiming she defamed him. The case has been dismissed, but Trump (as usual) is appealing the decision. Trump is not required to appear in court. The jury will decide whether to increase Carroll’s original award of 5 million dollars in damages.

While Trump can sit out the defamation case, his presence will be required in the upcoming criminal cases, namely the January 6 case scheduled to begin in Washington on March 4 and the hush money case, scheduled to begin in Manhattan on March 25. The documents case should follow in May, and the Georgia Rico case could be pushed to after the elections. Unlike all other cases, the Georgia case will be televised. Unless they can cut more deals, it will be a bit crazy with all the defendants their lawyers and the media.

Every single case will be appealed, so these cases will extend into 2025. The RICO case appeals could go even longer.

Stay tuned,

Dave