supreme court

Status of legal criminal cases against Donald Trump

by Dave

I tried to make these summaries as short as possible. For each case, there is massive political commentary on both sides. For each of these cases, I have listed the relevant links at the end of this posting.

My conclusion is that in each case, the guilt or innocence of Donald Trump, must be decided in a courtroom, not on social media. The outcome of the two federal criminal cases should not be decided because Donald Trump won the presidential election and could install a partisan Attorney General to shield him from being accountable for his illegal actions.

FEDERAL CRIMINAL CASES

Classified Documents Case: Status, Dismissed but under appeal by the Department of Justice

On June 13, 2023, Donald Trump plead not guilty to all 37 counts. His defense team filed many pre-trial motions. Judge Aileen Cannon postponed the start of the trial from May 2024 to July 2024, then on July 15, 2024 dismissed the case completely, ruling that the appointment of Special Counsel, Jack Smith, was a violation of the US Constitution. The dismissal of the case is being appealed.

On September 6, 2023, again citing the Presidential Records Act, Trump told radio host Hugh Hewitt: “I’m allowed to do whatever I want.”

On September 14, 2023, Trump was interviewed by Megyn Kelly for SiriusXM. He said: “I’m allowed to take these documents, classified or not classified. And frankly, when I have them, they become unclassified. People think you have to go through a ritual. You don’t — at least in my opinion, you don’t.”

Many fact checking websites have disputed Trump’s claims. CNN fact checked the claim that he has the right to all documents under the Presidential Records Act. Contrary to Trump’s claim, the classified document belong to the National Archives. An excellent summary of seven false claims by Trump is summarized in the link below:

CNN Link: Fact check: Seven of Trump’s false or unsupported claims on the documents investigation

A ruling by the Appellate Court will happen after the election. It may occur before inauguration day, but this doesn’t really matter, as there will be many motions after the court rules, to take us pass January 20, 2025.

If Trump is elected, he has the power to have the case against him dismissed and abolish the Special Counsel, Jack Smith. If Kamala Harris is elected, I believe she will respect the Special Counsel obligation to bring this case to trial, and show no favoritism. The same goes for the January 6 Election Interference case.

January 6 Election Obstruction Case, Active and in pre-trial motions

It looked for a while the court trial is case would start before the election. This all changed with a 6-3 decision by the US Supreme Court that Trump in July 2024, providing partial immunity to Trump for official actions.

They further complicated the case. Both Trump’s lawyers and the Special Counsel will submit briefs related to the immunity issue. Trump’s lawyers have until November 7 to submit their brief. Ultimately no matter how Judge Chutkan rules, the decision will be appealed and likely end up in the Supreme Court in 2025.

Of course, if Trump is elected, he will be make sure the case is dismissed.

MUNICIPAL and STATE CASES

If re-elected, Trump can not get these cases dismissed.

Hush Money Case: Status, awaiting sentencing

Donald Trump was convicted in May on 34 counts of falsifying business records related to a hush money payment to adult film star Stormy Daniels near the end of the 2016 presidential campaign. This was the unanimous decision by a jury. Attorneys for Trump have the conviction be dismissed based on the Supreme Court’s ruling on Presidential Immunity case.

Judge Merchan will rule on November 14, on the immunity issue. I suspect Trump will lose this case. He will sentence Trump on November 26. I feel Judge Merchan made the right decision to delay the sentencing until after the election. Trump’s legal team always appeals any decision, and the case will not end on November 26. If fact, Trump has the legal right to appeal the conviction, after sentencing. I believe the sentence will be stayed (postponed) pending the results of the appeals.

Prosecutor Alvin Bragg did not object to the Trump’s request, and simply responded that he would accept the judge’s decision. This was again, absolutely right, as he did not want to make this case appear as a partisan case against a presidential candidate.

Trump addressed his sentencing hearing being postponed during his speech at the Fraternal Order of Police in Charlotte, North Carolina. he argued that it was postponed because people realized “there was no case,” leaning into his typical attack lines calling the case against him a “witch hunt.”

Merchan said the delay should help “avoid any appearance — however unwarranted — that the proceeding has been affected by or seeks to affect the approaching Presidential election in which the Defendant is a candidate.” This is obviously contrary to what Trump told the police organization.

Georgia RICO Election Interference Case, Active and under appeal

A grand jury indicted Trump and 18 other defendants on August 14, 2023. The discovery that the prosecuting attorney Fani Willis was having an affair with the lead attorney, Nathan Wade, lead to hearings and ultimately a decision by the Judge McAfee that either Nathan Wade or Fani Willis should be removed from the case. Attorney Wade resigned, however Trump’s lawyers are now appealing this decision, and would like Fani Willis to resign. If the appeal is successful, the case could be dismissed. Oral arguments in this appeal have been scheduled for December 5, 2024.

A second complicating issue is the Supreme Court’s ruling on presidential immunity. Certain evidence may be excluded based on their ruling. This may result in more appeals and delays.

Four defendants have pleaded guilty. This leaves 14 defendants including Trump, to stand trial. The trial can be televised. I assume that since this is a criminal trial, Trump’s presence will be required.

Summary

Only one of the four criminal cases has gone to trial. The delays caused by pre-trial motion worked.

Soon after the election, I predict that the appellate court will reverse Judge Cannon’s dismissal of the Classified Documents case. Judge Cannon did not rule on several pre-trial motions.

Trump will, if elected, get the two federal cases dismissed. I believe this is very wrong. He should stand trial just like any other American. No one is above the law.

Stay tuned,

Dave

The Overfishing Case in the Supreme Court

by Dave

This is a landmark case. Like other Supreme Court cases, the problem might seem small, but the ramifications of this decision could affect our government’s ability to enforce many regulations, including the Food and Drug Administration. The case is called “Relentless v. Department of Commerce” and I hope the Supreme Court will rule against Relentless. Just so you know my feelings!

The Supreme Court’s term is ending in late June or early July, and they always leave the most important cases to the end of the term. As usual, I focus more on the practical aspects of what happens as a result of the ruling, rather than the legal arguments.

— The Case

Fishing is a huge business, and there is always a temptation to overfish, which is to exceed the established quotas for a particular species of fish. It’s simply a risk verses reward situation. It is also a classic case of the regulators (US Government, National Marine Fisheries Service) verses the regulatees (Herring industry).

The problem is undisputable- when more fish are taken than the spawning rate, the population declines. There are multiple solutions, but enforcement is frustratingly difficult given the many species of fish. So the agency decided to enforce quotas by requiring trained inspectors onboard the fishing vessels and pay $700 per day for their services.

I am not sure if this policy is working, but that isn’t for the Supreme Court to decide. I can understand the pushback from the vessels’ owners, particularly the smaller business owners, who claim that the $700/day can make it unprofitable to fish. The Relentless corporation has brought this legal challenge to the Supreme Court as an overreach of a government agency in making rules without the legislature empowering the agency specifically to do so.

I can also imagine how difficult it must be, for fish inspectors to be checking the haul of vessels at the dock, when they are all coming in together. So, putting the inspectors on the vessels made sense.

— The Chevron Deference and Politics

The Chevron deference is part of a ruling, in which the court opined that when ambiguity exists in the enforcement of a law, the court should defer to the judgement of the regulatory agency and just look at whether this is a reasonable interpretation of the agency’s authority. It is based on pragmatism, that the regulatory agency has a better understanding of the problems and potential remedies. It was part of a 1984 Supreme Court decision, and has been narrowed in scope by other court decisions. An excellent summary provided by Cornell law school:

https://www.law.cornell.edu/wex/chevron_deference

I suspect philosophical/ political perspective will have a lot to do with this ruling. The Supreme Court is split, 6 conservatives and 3 liberals, so this might be a win for conservatives. Roberts may join with the liberals. but that won’t be enough to carry the day. Maybe Barrett?

Supreme Court likely to discard Chevron

NY Times, https://www.nytimes.com/2024/01/17/us/supreme-court-chevron-case.html

As I stated at the onset, I hope Relentless loses. The Chevron deference, I believe, is necessary to keep politics out of enforcing unpopular rules. And, the consequences of invalidating the Chevron doctrine will extend far beyond our government’s attempt to regulate the fishing industry. Oral arguments in January indicated Brown, Kagan and Sotomayor will not invalidate the Chevron deference. Thomas, Alito, and Kavanaugh seem to be building a case against this doctrine, as being against free enterprise.

If Relentless wins, it will weaken the hand of government agency to accomplish their areas of responsibility, and in the long term, be bad for the general public. The enforcement of rules is often very difficult, as the risk to reward ratio changes, and owners of businesses see compliance as an option rather than a responsibility.

Yes, there are tons of regulations, but I think in the long run, the Chevron deference benefits everyone. We import 90% of our fish, and if we can’t control overfishing, we have no seat at the table when others are busy diminishing the populations of fish. Same is true for many other areas, such as the environment (yes including climate change), water and air pollution, and safe food and drugs. We depend, like it or not, on the expertise of agencies.

This is an election year, and Donald Trump will champion himself as a great regulation chopper, which will lead to new prosperity. It’s a nice populist theme, particularly for a real estate mogul, with huge legal problems. Perhaps, it isn’t MAGA, but MMGA, or Make Me Great Again.

Stay tuned,

Dave

Other Links related to Overfishing:

New Civil Liberties Alliance: Relentless v. Department of Commerce

Note: The New Civil Liberties Alliance is counsel for the Relentless defendants.

Environmental defense Fund, Overfishing

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

Texas Election Lawsuit Filing

by Dave

As I was preparing this blog, the Supreme Court denied the case based on standing. It simply says that Texas can not sue other states for the way they conduct their elections. So, it is much to do about nothing, as have all the other cases on election fraud, filed and dismissed in the past four weeks. Before a claim can be made in the Supreme Court, it must be established that the court is the right place to resolve a dispute.

The only question, I have, is whether Ken Paxton will win a pardon from Donald Trump. Paxton has not been convicted of any crimes, but is currently under federal investigation for allegedly using his office to illegally benefit a wealthy donor. Members of Paxton’s staff made the allegations and called for a probe of their now-former boss. He is been under indictment for felony securities fraud. A pardon will not apply to state charges. Is a lawsuit that lasts 5 days, and is thrown out, with 5 sentences, be enough?

The US Supreme Court is composed of nine justices who have lifelong appointments. This is such a blessing, passed down from our founders, and rooted in our constitution, designed specifically to keep the justices independent from the politics of the time and solely focused on the application of law.

Stay tuned,

Dave

Links:

As FBI moves closer, Texas’ Paxton Denies He is Fishing for a Pardon

The responses are blistering (CNN words) from the reply briefs:

Pennsylvania:

“Let us be clear. Texas invites this court to overthrow the votes of the American people and choose the next President”

Wisconsin:

“Texas proposes an extraordinary intrusion into Wisconsin’s and the other defendant states’ elections, a task that the Constitution leaves to each state, … Wisconsin has conducted its election and its voters have chosen a winning candidate for their state. Texas’s bid to nullify that choice is devoid of a legal foundation or a factual basis.”

Georgia:

“’None are more conscious of the vital limits on judicial authority than are the members of this Court,
and none stand more in admiration of the Constitution’s design to leave the selection of the
President to the people, through their legislatures, and to the political sphere.’ quoting from Bush vs Gore.”

Don’t Vote

by Dave

You have the right to vote.  Nobody says you have to vote.  Yes, I know both Republicans and Democrats are saying all Americans should vote.  I’m suggesting just the opposite- this country would be a lot better off if some people just sat home and didn’t vote.

If you haven’t bought a read a newspaper in two years-  don’t vote.   If you can’t remember if Obama is a Republican or Democrat – don’t vote.  If you can’t name one of the justices on the Supreme Court – don’t vote.  If you can’t name two branches of government (I mean any 2 of the 3 branches) don’t vote.   Hint: the US Post Office is not a branch.  If you think Syria is next to Kuwait or Malaysia- don’t vote.

If you think of electing a president because you are mad at some decision made by the Supreme Court- forget it.  It isn’t going to happen.  Not the Obamacare, abortion or the right of gays to marry on the liberal side, or ruling unconstitutional gun control and campaign finance on the conservative side.  Not going to be heard again and decided differently.

If you don’t care about politics, you have every right (see: Pursuit of Happiness clause) not to vote.  If you do vote, and the person you voted for wins,  it is partially your fault.  I mean a very small fraction, but do you want this responsibility?

Stay tuned,

Dave Lord