14th-amendment

More plots and subplots to Trump’s legal woes

by Dave

The Georgia case is all about election interference. It was messy at the start, with so many defendants. Chances of success seemed to improve as four defendants decided to accept plea bargains and testify for the the prosecution.   It just got worse with the accusation that District Attorney Fani Willis had a romantic relationship with Nathan Wade, a private lawyer who has received over $600,000 in preparation for this case.  The Republican controlled Senate could not be more pleased to attack Willis, and on Friday approved a special committee to investigate Willis. See links:

Politico: A Reality Check on the Fani Willis Scandal, Is Trump’s Georgia prosecution about to get derailed?

Fox News: Georgia Senate approves special committee to investigate Fani Willis misconduct allegations

Will this be a fair investigation? Oh please, this is an election year, and there’s nothing more the senators would like to do is get rid of DA Willis. You can expect a very aggressive response as she has done in the past when legislators try to interfere with judicial proceedings. Impeachments are political processes, and normal rules of admissible evidence are gone. The charge of an affair is made by Nathan Wade’s wife in a divorce proceeding.

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Next subplot arose when Smartmatic, a vendor of voting systems, filed a lawsuit against One American News (OAN), for defamation. In April 2023, Dominion settled their defamation case with Fox News for $787 million dollars. Dominion has helped Smartmatic with their lawsuit, by handing over thousands of pages of documents. In support of discovery against OAN, Smartmatic claimed in a filing that OAN Pro-Trump network OAN execs may have ‘engaged in criminal activities’ while promoting 2020 election lies. It is too early to tell if there is any real substance to this claim. See link below:

CNN: Pro-Trump network OAN execs may have ‘engaged in criminal activities’ while promoting 2020 election lies

I note that Smartmatic is suing Fox for 2.7 billion dollars, for defamation. I’m not sure how much they’ll try to sue for against OAN. OAN has stated that these allegations are baseless.

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Legal experts expect Trump’s business fraud case to conclude this week. The judge has already concluded that the overvaluations of Trump’s properties constituted fraud, so the trial was to determine the penalty. It is going to be more than 370 million dollars. It was speculated by Bloomberg, that following this court decision, the IRS will likely be looking at the evidence in the case, for tax fraud issues. We shall see.

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The presidential immunity case is in the Appellate court and a opinion could be issued any day. Trump’s lawyers see this as a chance to push back the Jan 6 federal case, beyond March, 2024. Most legal experts suggest the case will have to be re-scheduled. Legal experts also suggest that if Trump loses and appeals this case to the Supreme Court, they might not take it up. It would help prosecutors keep a trial date before the election.

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The Colorado disqualification case and the Fischer case will be heard by the Supreme Court. I have posted before on the Colorado case, as I believe as a practical matter, Donald Trump should be on the ballot in both the primary and general election as it is vital that the president is elected by the people. However, what seems right and practical is not how the Supreme Court decides issues. The Colorado Supreme Court ruled in favor of taking Trump off the ballot, and the Supreme Court will decide if this judgement was contrary to law. Other states will likely follow Maine’s example and keep the status quo, until the Supreme Court rules.

The Fischer case will decide if prosecutors went too far in applying a law that was used to convict over 300 rioters of obstructing an official proceeding. It is the same law that prosecutors used in indicting Trump on 2 of the 4 counts of the Jan 6 criminal federal case to be tried in Washington.

Scotus Blog: Court to weigh in on scope of law used in Jan. 6 prosecutions

A lot will be decided soon. A lot will be appealed.

Stay tuned,

Dave

Quick Updates: Presidential Immunity hearing and Business Fraud Case

by Dave

In the Appellate Court in Washington, DC, January 9 was an historical moment as Trump lawyer, John Sauer argued that an ex-president had absolute immunity to any criminal acts that occurred during his presidency. The consensus of experts in this area suggested that the hearing did not go well, and the Appellate Court will likely rule against him. Neither Trump nor the Special Prosecutor have advocated the “offramp” option, that is leaving the immunity claim to after the trial. This argument was filed as a amicus (friend of the court) brief.

I think if oral arguments did anything, it was to close off the offramp. At least I hope so. Thank God for this! Trump will appeal all judgments against him, whether it is this case, the documents case or the Georgia conspiracy case, which will be particularly messy. 

Lawfare report by Anna Bower: Trump and Smith, Reunited at the DC Circuit

Superb reporting by Ms. Bower from inside the courtroom, particularly noted for bits of humor sprinkled into a very serious matter. The bottom line is that there is no legal precedent for absolute immunity, and granting Trump’s claim would be a massive increase in presidential power. 

If the Supreme Court opts to take up this case, the six conservative judges will likely not come to Trump’s rescue, as they are loathed to construct new ex-presidential rights. They openly criticize the liberals on the bench as acting like legislators and expanding rights beyond the plain meaning and historical context of the law. 

The argument made by Trump’s lawyers is that he maintains immunity, because the House acquitted him of wrongdoing in the January 6 violence. At that time, Mitch McConnell remarked that the House was not clearing him of wrongdoing, as he could still face criminal charges since he was out of office. Now, ironically, his defense is turned around, and the argument is that the House did clear him, so he can’t face criminal charges.

The Special Counsel, Jack Smith, is probably very focused on the calendar and delay tactics right now. Smith lost in his attempt to skip over the Appellate court, and immediately be heard in the Supreme Court.  Court observers note that it is virtually impossible for the trial to begin on March 4, 2024. 

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Then yesterday January 11, 2024, the business fraud civil case was all abuzz as it was time for closing arguments. A hasty attempt to allow Donald Trump to speak fell through, as there was no agreement to restrain Trump from a return to the campaign rhetoric. Closing arguments are supposed to be directed at the judge, in a last attempt to go easy on Trump and his boys, Donald, Jr. and Eric. Trump’s three lawyers gave a normal summation of the case, arguing that there was no real harm done by the occasional overvaluation.

The judge finally let Trump have his say, and it is unlikely anything Trump said was within bounds for the case. Trump stated what was out of bounds was the entire case against him. His five minute rant likely will be completely ignored by the judge.

Link: Donald Trump defies judge, gives courtroom speech on tense final day of New York civil fraud trial

The state is seeking 370 million dollars. I think they’ll win and Trump will appeal. The judge will submit his written decision near the end of January.

Then, it will be on to the next, which is E. Jean Carroll defamation lawsuit, Part II, which is centered on defamatory statements Trump made immediately after being found guilty of defamation, scheduled to start January 16. Also, on deck is the Hush Money case, scheduled for March 20. So, note to court reporters, look for extended stay options in Manhattan. 

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