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Judge Chutkan Rejects Trump’s Request for More Discovery of Documents

By dianeravitch
October 17, 2024 //
11

As we have seen over the past two years, Trump has used his legal team to delay, delay, delay, with the hope of eventually getting a sympathetic judge who will dismiss the case against him. That is what happened in Florida, where Trump-appointed District Court Judge Aileen Cannon threw out the entire case about Trump’s theft of documents. The reason: She believes that Special Counsel Jack Smith’s appointment was unconstitutional. She is the first federal judge to reach this conclusion. Many other judges and legal scholars have reached the opposite conclusion and found the appointment of special counsels to be constitutional. Her decision has been appealed by prosecutors.

Yesterday, Obama-appointed District Court Judge Tanya Chutkan dismissed most of Trump’s requests to “discover” more government documents that might show that his actions on January 6, 2021, were necessary.

The Meidas Report summarized her decision:

In a significant legal setback for Donald Trump, U.S. District Judge Tanya Chutkan issued a detailed ruling on his latest discovery requests in the 2020 election subversion case, dismissing most of his demands as speculative and unsupported by law. Trump had sought to compel the federal government to search for and produce a broad array of documents related to election interference, cybersecurity threats, and law enforcement actions connected to the January 6th attack on the U.S. Capitol.

In this article, we will succinctly analyze Judge Chutkan’s latest ruling and its implications on Trump’s election interference case. To read our full analysis below, please join as a paid subscriber to support our work.

Let’s get into it:

The ruling, issued today (October 16, 2024), addressed two key motions filed by Trump’s defense team: a Motion to Compel Discovery and a Motion for an Order Regarding the Scope of the Prosecution Team. In these motions, Trump’s lawyers asked the court to force the federal government to search nine government agencies for information across 14 categories, including classified intelligence assessments and communications about foreign election interference. Trump’s defense argued that this information would support his claim that his actions were based on legitimate concerns about election security.

Judge Chutkan, however, found that Trump’s requests were largely unsupported by the law. She pointed out that under both Brady v. Maryland and Federal Rule of Criminal Procedure 16, defendants bear the burden of demonstrating that the requested materials are material to their defense. “Speculation” that the government might possess favorable evidence is not enough to justify an expansive search, Chutkan noted, and Trump had failed to show that the requested documents were likely to yield new, non-cumulative evidence.

For example, Trump sought all drafts and communications related to the 2020 Election Intelligence Community Assessment (ICA), claiming that these documents would help demonstrate his “good faith” concerns about foreign interference. But Chutkan rejected this request, noting that Trump did not claim to have been aware of these drafts at the time of his indicted actions. Without showing that this information could have influenced his state of mind, Trump could not meet the standard of materiality required for discovery.

Judge Chutkan also denied Trump’s request for communications and drafts of the Cybersecurity and Infrastructure Security Agency (CISA) statement, which had described the 2020 election as “the most secure in American history.” Trump argued that earlier versions of the statement might show narrower language that would support his defense, but the court found this request speculative and irrelevant to Trump’s intent at the time.

Trump did win a limited victory in his request for certain “discrete, identified” documents, which Judge Chutkan ruled the government must produce. However, these documents represented only a small portion of Trump’s overall requests. The ruling emphasizes that Trump’s legal strategy cannot rely on vague or speculative claims of what might be found in government records.

Chutkan’s ruling further solidifies the challenges Trump faces as he prepares his defense in the federal criminal case. Trump’s argument that his state of mind was shaped by legitimate concerns about election integrity appears increasingly difficult to substantiate, as the court continues to limit the scope of discovery to concrete and relevant evidence.

Judge Chutkan’s Conclusion and Order

This ruling follows a pattern in which courts have resisted attempts by Trump’s legal team to broaden the scope of discovery in various legal challenges. Chutkan’s decision reiterates the principle that discovery is not an unlimited right and must be grounded in specific, demonstrable need.

With the court setting an October 30 deadline for any further motions to compel discovery, the Trump defense team will need to reconsider their approach as the case moves toward trial. Judge Chutkan’s decision is another indication that Trump’s claims, both inside and outside the courtroom, face serious judicial scrutiny.

Categories Accountability, Democracy, Disruption, Elections, Extremism, Justice, Trump

Greg Olear: John Roberts and His Successful Attack on Voting Rights

By dianeravitch
October 11, 2024 //
7

Greg Olear writes about Chief Justice John Roberts and his lifelong passion to destroy voting rights. To those who thinks Roberts is a moderate, Olear says that the facts prove otherwise.

He writes:

Donald Trump is certainly going to lose the popular vote, like he did in 2020 and 2016. 

Donald Trump is probably going to lose the Electoral vote, like he did in 2020. 

But if the latter is close—and thanks to the antidemocratic architecture of the archaic Electoral College system, it may be—the House of Representatives might wind up deciding who will take the White House on January 20. Trump would probably win in the House (which, despite its intended purpose and its name, is not accurately representative of the American people).

And if it ever got that far, Trump would certainly win in the Supreme Court. There, Leonard Leo’s far-right drones are chomping at the bit to return FPOTUS to the Oval Office. Amy Coney Barrett would join with the four hateful men in robes in holding with the Donald. And proudly, eagerly joining them in such a nightmare scenario would be Chief Justice John Roberts, the reactionary in moderate’s clothing, whose raison d’être is to make the United States as antidemocratic (or, if you will, as fascist) as possible—all the while convincing the media that he’s merely an umpire calling balls and strikes.

Roberts may well be an umpire. But umpire-ness does not automatically guarantee objectivity and neutrality. Like, I’ve seen the baseball scenes in The Naked Gun. Who better to rig the game than the umpire, who can call a slider under the chin a strike and a fastball right down Broadway a ball? 

That’s exactly what Roberts has done. In his court, balls are strikes, white is black, up is down, Radiohead is Coldplay. Words have no meaning. On his watch, SCOTUS decided that “well regulated” means “not regulated at all, even a little,” and that, in the case of Trump being removed from the ballot in Colorado for leading an insurrection, “Congress may by a vote of two-thirds of each House, remove such disability” means that it’s not actually necessary for Congress to do such a thing. Roe, legal precedent for half a century, is overturned, but the Comstock Act is okay.

There is not, and will never be, an internal logic to these decisions. Leonard Leo and the rightwing machine decide what outcomes they want, they game the lower court system to get the Supreme Court to take on the requisite cases, and then Roberts & Co. pull shit out of their collective ass to produce a ruling that pleases their rightwing whoremasters. And who pays the price? Pregnant women who cannot access necessary healthcare. Children who get gunned down by the score in schools all across the country. Minorities who have seen their federal civil rights protections evaporate. Consumers of tainted cold cuts. And, just to pull something out of today’s news, homeowners in the path of Hurricane Helene, victims of the climate change the GOP and its stooges on the Supreme Court will deny until Florida is underwater.

At the heart of all of this is voting rights. A country is only as democratic as its system for electing its leaders. By that measure, the United States is not all that democratic. State legislatures devise lopsided redistricting maps; that ensures a significant number of extremists in the House. The Senate, meanwhile, is inherently fucked by its construction, which vouchsafes New York the same number of senators as North Dakota. Thus has a minority of reactionary weirdos managed to hijack our federal government. And no one has done more to make this a reality than John Glover Roberts Jr.

“This is who he is,” David Daley, author of the excellent and exigent new book Antidemocratic: Inside the Far Right’s 50-Year Plot to Control American Elections and my guest on today’s PREVAIL podcast, tells me. “And John Roberts has so successfully maintained his reputation as an institutionalist, as an umpire, as a caller of balls and strikes, that he’s gotten away for 25 now with being what I call the most effective Republican politician of the last fifty years—who has delivered the right victory upon victory that they never could have won at the ballot box.”

In 2013, Roberts gutted the Voting Rights Act of 1965, torpedoing Section 5, which required historically racist states like Alabama and Mississippi to “preclear” any proposed changes to laws, policies, or maps related to elections. In the disgraceful Shelby County decision, the Chief Justice assured us that the South “has changed, and while any racial discrimination in voting is too much, Congress must ensure that the legislation it passes to remedy that problem speaks to current conditions.” Section 5, he wrote, is “based on 40-year-old facts having no logical relationship to the present day.”

Incredibly, a white Republican who grew up in a whites-only town in Indiana was somehow ignorant of what was happening to racial minorities in the South. As Daley writes in Antidemocratic:

Spend some time with the Justice Department files from this era and two things become immediately clear: First, across small-towns in the South, the VRA helped to promote parity in voter registration numbers, but preclearance prevented the adoption of many new-school methods of voter suppression designed to keep the past alive in little locales where no media played watchdog and officials could not be trusted. And second, the five Supreme Court justices who declared that preclearance should have been a vestige of the past spent little time examining these stories. 

They likely knew nothing of the majority-Latino town Seguin, Texas, about a half hour east of San Antonio, where the white population accounted for a third of the population but two-thirds of the City Council. That imbalance persists because officials simply refused to redistrict for more than two decades, after both the 1980 and the 1990census. Latino leaders filed a lawsuit using Section 5 and won—only to see the city respond by rushing the filing deadlines forward for candidates so that no Latino candidates could qualify. To stave off that latest scheme, the Latino majority had to rely on preclearance—and another successful lawsuit.

Seguin, Texas is hardly the only example. Daley recounts many of them in his book. They are nauseatingly, infuriatingly unfair. To this day, and contrary to Roberts’s assurances in Shelby County, voter suppression in the South remains a big deal. And that’s just how the Chief Justice likes it.

“[P]eople on the left still say, ‘Oh, John Roberts is going to save us on this really important thing,’” Daley tells me. “And John Roberts is not going to save you. John Roberts is not an umpire. John Roberts is not your friend. John Roberts was raised in a town for whites only, that was still advertising itself as a place for Gentile Caucasians, even after the United States outlawed housing discrimination.”

Sam Alito is the most pompous of the current Leonard Leo justices. Clarence Thomas is the most corrupt. Brett Kavanaugh is the most nakedly partisan. But John Roberts is the most dangerous, the most insidious, the most fascistic, and, worst of all, the most appealing in the eyes of the press—despite the severe and possibly fatal damage he’s done to our democracy.

“This is who John Roberts is,” Daley says. “Curtailing voting rights has been John Roberts’s life’s work—and he’s really really good at it.”

Categories Accountability, Democracy, Elections, Extremism, Fraud, Justice

Jack Smith’s Case Against Donald Trump for Launching a Failed Coup Attempt

By dianeravitch
October 3, 2024 //
14

For those of us who take the law seriously, Trump’s successful evasion of accountability for the failed coup on January 6, 2021, is outrageous. Trump has used delay as his primary strategy for avoiding accountability, as well as his partisan ties to federal judges like Aileen Cannon, whom he appointed, and the rightwing majority on the Supreme Court. Judge Cannon tossed out the documents case. The only viable case right now is Special Prosecutor Jack Smith’s indictment of Trump for launching the events of that day. That case will be heard by Judge Tanya Chutman, who was appointed by Obama. It’s a sad day when the ability to get justice depends on which judge is assigned to the case.

Jordan Rubin writes about Jack Smith’s latest filing here. Smith had to rewrite his brief to acknowledge the U.S. Supreme Court’s ruling that the President has absolute immunity for any “official acts.” Should planning to overthrow the Constitution, to subvert the election, and to send a mob to storm the Capitol be considered “official acts”?

Special counsel Jack Smith’s big immunity brief is here. The 165-page (somewhat redacted) motion lays out why, in the government’s view, the Supreme Court’s immunity ruling doesn’t stop Donald Trump from standing trial in his federal election interference case.

As an example of what the motion seeks to accomplish, consider the discussion of the alleged evidence related to former Vice President Mike Pence, whom Trump pressured to subvert the 2020 presidential election.

As an example of what the motion seeks to accomplish, consider the discussion of the alleged evidence related to former Vice President Mike Pence.

To understand the Pence analysis, recall that Chief Justice John Roberts’ July 1 ruling in Trump v. United States granted absolute immunity for “core” presidential acts, presumptive immunity for all other official acts, and no immunity for unofficial acts. While the high court’s Republican-appointed majority said that it’s up to U.S. District Judge Tanya Chutkan to perform the immunity analysis in the first instance, the justices gave the Washington judge a head start in some parts, including with Pence. They said that whenever Trump and Pence discussed “their official responsibilities” — namely regarding Pence’s certification of Electoral College votes on Jan. 6, 2021 — they had engaged in “official conduct.”

That means Trump would have presumptive immunity for those alleged actions, which Smith would need to rebut. Roberts’ opinion (rather vaguely) said that can be done by showing that the prosecution wouldn’t “pose any dangers of intrusion on the authority and functions of the Executive Branch.” So that’s why Smith wrote in the motion that because that branch “has no role in the certification proceeding — and indeed, the President was purposely excluded from it by design — prosecuting the defendant for his corrupt efforts regarding Pence poses no danger to the Executive Branch’s authority or functioning.” (The vice president is involved in certification via the office’s role as president of the Senate.)

Raskin on the Jack Smith brief: ‘American carnage is Trump’s legacy’

07:00

The special counsel further wrote that Trump “sought to encroach on powers specifically assigned by the Constitution to other branches, to advance his own self-interest and perpetuate himself in power, contrary to the will of the people.” Therefore, Smith wrote, prosecuting Trump wouldn’t “pose any danger of intrusion on the authority and functions of the Executive Branch; rather, it would advance the Constitution’s structural design to prevent one Branch from usurping or impairing the performance of the constitutional responsibilities of another Branch.”

Smith’s team also made clear in the filing that prosecutors intend to introduce more evidence at trial related to Pence, who is not accused of any wrongdoing. For instance, they want to introduce evidence of what they call unofficial communications that Trump had with Pence in their capacity as candidates (not as president and vice president), including when Pence “tried to encourage” Trump “as a friend” when news networks began to call the 2020 race for Joe Biden, and later when Pence suggested that Trump should recognize the process was over and run again in 2024. Even if those communications were deemed “official,” Smith wrote, the immunity presumption would be rebutted there too, he argued.

To be sure, the Pence evidence is only part of the case that Smith wants to bring against Trump, who has pleaded not guilty.

To be sure, the Pence evidence is only part of the case that Smith wants to bring against Trump, who has pleaded not guilty. And if the former president wins next month’s presidential election, he’ll be empowered to dismiss the case entirely.

But if Trump loses, then Chutkan would have a heavy task ahead in weighing the voluminous allegations and evidence Smith presents in the monster filing and deciding whether it passes the high court’s (again, rather vague) immunity test. Ultimately, whatever the judge rules will be subject to review again by the justices before any trial can go forward. That won’t happen before the election.

The case will either be killed soon by way of a Trump victory or will linger on for months, if not years, to first determine whether the Supreme Court will even let Trump stand trial over any of these allegations.

Categories Corruption, Democracy, Elections, Justice, Trump

Liz Cheney: A Profile in Courage

By dianeravitch
September 11, 2024 //
14

Liz Cheney is a conservative. She supported Trump during his term in office. She is opposed to abortion. But, unlike other conservatives, she was outraged by what Trump did on January 6, 2021. She was outraged that he refused to accept his loss and the peaceful transfer of power. She was so outraged that she agreed to co-chair the January 6 Commission.

And now she has announced that she will vote for Kamala Harris. Trump has threatened to prosecute her for treason if he regains office. She is not afraid of Trump. She is, she said in this interview with ABC News, afraid for her country.

She sacrificed her career and stood on principle. Her principle is the dominance of the Constitution and the rule of law.

She is a profile in courage.

Categories Democracy, Elections, Ethics, Extremism, Fascism, Justice, Trump

The Biggest Issue in 2024 Election: The U.S. Supreme Court

By dianeravitch
September 9, 2024 //
13

Jason Linkins of The New Republic writes that it doesn’t really matter what Kamala Harris’s policies are because the Supreme Court is poised to strike them down. its recent decision, overruling what is known as the Chevron doctrine, hamstrings any Democratic initiative.

If Trump should win, he will be able to appoint replacements for the two oldest justices, guaranteeing a rightwing majority for decades.

Linkins writes that “a dark shadow” blights every policy that a Harris administration might want to initiate. That dark shadow is the conservative majority’s decision in a case called Loper Bright Enterprises v. Raimondo. 

Linkins writes:

That ruling, which overturned a doctrine called “Chevron deference,” puts the future of any policy that Harris favors in grave doubt. If you want the Harris campaign to get more detailed on policy, I’m sorry to say that any conversation starts and ends with how they plan to confront a Supreme Court that has torched the separation of powers in the mad game of Calvinball they kicked off during the Trump era. 

The gutting of Chevron deference is not something that the smooth-brained masses of the political media adequately understood when it came down. Chevron deference is essentially the doctrine that allows government agencies to respond nimbly to their congressional mandates; hitherto, the judiciary stayed out of the way, allowing executive branch personnel to use their expertise to interpret ambiguous regulations. Imagine, for example, the technological advancements that have occurred since landmark environmental legislation was passed decades ago. The EPA, given free rein to adapt to this changing landscape, can move more fleetly to remediate pollution thanks to Chevron. The Roberts court, instead, imagines a world where they have to return to Congress each time there is an emergency, to get specific guidance.

The best way of describing what the conservative majority did is to say it gave six unelected right-wing politicians who all enjoy a lifetime appointment a line-item veto over anything a Democratic Congress—and by extension Harris—wants to do, unless they can muster the votes to confront each problem they want to solve with an inhuman amount of hyper-specificity. As Vox’s Ian Millhiser has explained, if the executive branch “can’t regulate without getting permission from a Republican judiciary … then conservatives no longer need to worry about Democratic presidents doing much of anything that doesn’t meet the GOP’s approval…” 

The Supreme Court really is the most critical policy issue in this election. The Trump-installed majority is central to what the right plans for a second Trump term. Beyond the fact that the Roberts court’s ruling in Trump v. United States imbues the chief executive with monarchic levels of unaccountability—a dangerous privilege for, frankly, any president to possess—Project 2025, which is best understood as a massive rollback of individual rights, is something that Republicans simply could never contemplate without their super-legislature in black robes. 

Here, vaporizing Chevron has an asymmetric impact on the ambitions of the two parties. The GOP, having retreated from any part of the policy realm besides Project 2025’s infernal schemes, the furnishing of tax cuts to plutocrats, and deregulating everything under the sun (also a form of wealth transfer to plutocrats), need not worry about Chevron being in effect anymore.
But what makes Chevron crucial to this campaign is that the sledding for Democrats remains rough even if they prevail in November.

Indeed, even if they blow the GOP out of the water electorally, the end of Chevron deference is a fail-safe against Democratic policy, constantly running in the background as long as five of the six conservatives on the Roberts court agree. In this way, Harris and her fellow Democrats are locked out of liberal governance. Since liberal governance will form the cornerstone of anything Harris and Democrats want to do during her time in office, a confrontation with a Supreme Court that’s holding the policymaking apparatus hostage is not a fight they can duck. 

All Democrats need to join in this fight, and constantly raise the salience of the Supreme Court and its attendant corruption. It would be a good idea for any policy discussion to note that the Roberts court is the primary antagonist to making things better, easier, safer, and fairer for ordinary Americans; they are despoilers of the land and pilferers of our wealth. Harris should continually remind voters that turning things around will require a Democratic president to be on hand to appoint any replacements that may be needed, and prevent the oldest conservative justices from escaping into retirement, which would allow Trump to replace them with young members of the right’s lunatic lower-court farm system.

Is it time to revisit court-packing? I think the institutionalist case against it completely collapsed by the end of the court’s last term, but I doubt Harris has the stomach to revive the idea over the next several weeks. Nevertheless, the Supreme Court will remain the rock in the road that Democrats must find a way around if they want to improve our lives. Anything you might want an ascendant Democratic administration to do faces the judicial veto of right-wingers who can’t be voted out of office. It’s true that Harris is probably not going to deliver, or even champion, the most ambitious policies that progressives favor. But whether you’re a progressive fan of Medicare for All, or a centrist dedicated to means-tested, watered-down bullshit, you’re all in the same boat, so grab an oar.

Categories Accountability, Civil Rights, Democracy, Disruption, Elections, Extremism, Justice, Republicans, Trump

Elie Honig: What Will Happen to Jack Smith’s Case Against Trump Now?

By dianeravitch
August 23, 2024 //
2

Elie Honig is a former federal prosecutor who writes at a site called Cafe, where he and other legal experts follow and explain Trump’s legal entanglements. In this post, he speculates on how Jack Smith’s effort to hold Trump accountable for his efforts to overturn the 2020 election might fare in the months ahead.. Note that he points out that the investigation was hampered by the very late start of the U.S. Justice Department.

He writes:

Dear Reader,

I remember vividly the first time I lost a key piece of evidence. The NYPD had caught our defendant in Washington Heights with a fake police badge around his neck and a loaded gun in his waistband, and we charged him with federal firearms and armed robbery conspiracy crimes. Better yet (for us on the prosecution side), we flipped a cooperating witness who would testify that he and the defendant had committed two prior armed robberies together by posing as cops and ripping off drug dealers.

A week or so before trial began, the judge held a conference to handle routine pre-trial housekeeping. I confidently laid out the cooperator’s expected testimony. “That’s out,” the judge ruled, nonchalantly. “Too prejudicial.” For those who think that every judicial decision is rendered in scholarly prose, replete with probing analysis and citations to applicable precedent: welcome to the real world.

It was a kick in the gut. “That’s such bullshit. He can’t do that,” I whined afterwards. “Sure he can,” my supervisor responded. “He’s the judge.”

My experience is a tiny-potatoes version of what the U.S. Supreme Court has done to Special Counsel Jack Smith and his 2020 election subversion case against Donald Trump. The Court declared, for the first time in our history, that a president is entitled to criminal immunity for official acts. That part was no surprise; the law has long recognized civil immunity, and the justices during oral argument seemed in no mood to affirm the lower courts’ outright rejection of Trump’s claim.

But the breadth of the Supreme Court’s decision was astonishing. The majority held, for example, that “in dividing official from unofficial conduct, courts may not inquire into the President’s motives.” (It remains unclear exactly how a judge is supposed to draw that vital distinction.) And the Court ruled that if conduct is immune, prosecutors can’t base a criminal charge on it – nor can they mention it at all during trial, even as necessary context or background.

Now the case has landed back in trial court, before Judge Tanya Chutkan. She originally wanted the parties back before her today, but Smith asked for a few more weeks to gather his thoughts; he clearly has accepted that there won’t be a pre-election trial, despite his prior dogged efforts. Trump’s counsel, ever intent on slowing things down, happily consented to the prosecution’s request for delay. When Court reconvenes on September 5, it’ll be up to the Judge to pick through the wreckage and figure out what can be salvaged.

On that question, the Supreme Court has offered pointed guidance, and it bodes poorly for the core of Smith’s indictment. Trump’s effort to coerce the Justice Department to gin up proof of non-existent election fraud? Almost certainly an “official act,” and therefore immune and out of the case altogether. Trump’s pressure campaign aimed at his vice president, Mike Pence? Probably out. And Trump’s public statements, including his tweets and January 6 Ellipse speech? Likely toast, too.

The Supreme Court conspicuously reminded Judge Chutkan that it’s unimpressed with her work so far and will be watching her closely. The justices in the majority blasted the lower courts for “the expedition of this case, the lack of factual analysis… and the absence of pertinent briefing by the parties.” Indeed, as we’ve noted here before, Smith, Chutkan, and the intermediate appeals court judges tried to shortcut ordinary process to get Trump tried before the election; the Supreme Court noticed and disapproved. Most importantly on the vital timing issue, the Court has specified that Trump can appeal Judge Chutkan’s decisions about what conduct is (and is not) immune, before trial starts. That means, as a practical matter, there’s a zero-point-zero percent chance this trial happens before the November 2024 election.

If you’ve been hoping that Trump faces accountability for trying to steal the 2020 election before voters head to the polls for the next one, don’t despair – not fully, anyway. (For the record, I’m with you. The real problem is that DOJ took over two-and-a-half years to charge the case.) Judge Chutkan still can – and I believe will – order an evidentiary hearing to enable Smith to air some of his most explosive evidence, before voters head to the polls.

The Judge now must sift through the prosecution’s evidence and determine how much of Trump’s alleged conduct was an official act (and therefore immune), and which conduct can remain in the case. She has some leeway here. The Judge could opt to take “proffers” from both sides – detailed statements by the lawyers about what they expect their evidence to show. That’s a little flat, but it’s also perfectly permissible and efficient. And then there’s the more sensational alternative: the Judge can permit Smith to call live witnesses to expound from the stand on what their trial testimony would be.

I expect Smith to push for door number two, and Judge Chutkan to agree. If that happens, brace for a series of dramatic in-court encounters. We could see Trump’s former chief of staff, Mark Meadows, take the stand to give his first-ever public accounting of what his boss did (and didn’t do) before and on January 6. And Mike Pence could testify about how Trump begged and eventually threatened him in an effort to get him to throw the election – and how, on January 6, he had to run for his life to avoid the frothing mob.

No, an evidentiary hearing won’t hit nearly as hard as a jury trial and verdict. And we won’t actually see or hear any of it, because federal courts don’t permit cameras or live audio streaming. (Fair enough, given that it’s apparently the year 1892 right now.) We likely already know the most damaging information, as revealed in 2022 during the unforgettable January 6 Select Committee hearings in Congress, and the ensuing 800-plus page report. But, really, imagine: Trump’s own former chief of staff and VP taking the stand in, say, September of an election year, to describe firsthand how their former boss trampled on the Constitution to try to steal an election. Even if we all mostly know the story by now, that simply can’t be good for Trump at the polls, just weeks before voters cast their ballots.

It’s unclear how much of Smith’s case will ultimately survive the Supreme Court’s strafing. He might eventually go to trial on a tattered indictment focused on Trump’s effort to pressure state and local officials, without any of the damning evidence relating to DOJ and the VP and incitement of the rally crowd. Or the wounds inflicted by the Supreme Court might ultimately prove fatal.

But if Smith’s goal is to expose Trump’s conduct to the American public before the election – and let’s face it, that’s plainly been a driving force for the special counsel all along, despite his refusal to acknowledge it – he’ll still have a backdoor path to partial success.

Stay Informed,

Elie

Elie Honig served as an Assistant U.S. Attorney in the Southern District of New York for 8.5 years and as the Director of the Division of Criminal Justice at the Office of Attorney General for the State of New Jersey for 5.5 years. He is currently a legal Analyst for CNN and Executive Director at Rutgers Institute for Secure Communities

Categories Accountability, Corruption, Democracy, Disruption, Elections, Ethics, Extremism, Justice, Scandals, Trump

Trump Sues the U.S. Justice Department for $115 Million for Documents Search of His Home

By dianeravitch
August 13, 2024 //
5

Trump has the same reaction to every adverse circumstance in his life: Sue. Sue. Sue. He has been involved in literally thousands of law suits in his life. That’s his style. Sometimes the threat of a lawsuit is enough to frighten away an adversary. Sometimes a lawsuit forces a settlement, which works to his advantage.

Now he is suing the Justice Department for searching Mar-a-Lago for top-secret documents which he falsely claimed were his personal property. He no doubt expects the lawsuit to go before a friendly pro-Trump judge or the U.S. Supreme Court, which usually rules in his favor. If he is lucky, it will land in Judge Aileen Cannon’s court.

The New York Daily News reported:

Former President Trump is reportedly planning to sue the federal government for $115 million over the 2022 search of his Mar-a-Lago estate, accusing the Department of Justice of unconstitutional “political persecution.”

Even though the search turned up hundreds of classified documents and led to his indictment on federal charges, Trump says prosecutors improperly targeted him in hopes of damaging his campaign to win back the White House.

“What President Trump is doing here is not just standing up for himself — he is standing up for all Americans who believe in the rule of law,” Daniel Epstein, a lawyer for Trump, told Fox Business News.

Trump is demanding $15 million in compensation for his legal costs, plus $100 million in punitive damages.

Trump accuses Attorney General Merrick Garland and FBI Director Christopher Wray of failing to implement normal procedures for getting back the documents in order to carry out the search and humiliate the Republican ex-president….

The filing sets the clock ticking on a 180-day period during which Trump and the government can seek to work out a settlement. If no deal is reached, a federal judge will hear the case in south Florida.

This image contained in a court filing by the Department of Justice on Aug. 30, 2022, and partially redacted by the source, shows a photo of documents seized during the Aug. 8 FBI search of former President Donald Trump's Mar-a-Lago estate.
APThis image contained in a court filing by the Department of Justice on Aug. 30, 2022, and partially redacted by the source, shows a photo of documents seized during the Aug. 8 FBI search of former President Donald Trump’s Mar-a-Lago estate. (AP)

Trump admits taking the documents with him to his Florida estate after leaving the White House in January 2021, but claims he had the legal right to do so.

He returned some of the documents when hit with a subpoena to give them back.

Suspecting Trump was hiding more documents, the feds asked a judge to approve a search warrant for Mar-a-Lago, which was carried out on Aug. 22, 2022.

Garland appointed Special Counsel Jack Smith to investigate the case after Trump announced he would run for president again in 2024.

Trump was indicted on a string of charges accusing him of improperly retaining the documents and obstructing justice. Two Mar-a-Lago workers were also charged with moving boxes of sensitive documents to hide them from investigators and even Trump’s own defense attorney.

Judge Aileen Cannon recently dismissed the case on the grounds that Smith’s appointment was unconstitutional. The prosecution is appealing that decision to a higher court but it will likely wind up being decided by the Supreme Court.

Categories Corruption, Elections, Extremism, Justice, Trump

President Joe Biden Recommends Reform of Supreme Court

By dianeravitch
July 30, 2024 //
41

In an opinion piece in The Washington Post, President Joe Biden proposed important reforms to the U.S. Supreme Court. He recommended a term limit of 18 years and an ethics code for Justices of the Supreme Court. Public opinion of the Court is at its lowest since polling began in 1987. This may be in response to ethical and partisan scandals associated with the Court, as well as politically-motivated decisions.

During Trump’s single term, he was able to add three justices to the Court, stacking it with a 6-3 hard-right majority (thanks to the Federalist Society, its leader Leonard Leo, President Trump, and the canny Republican Senate Majority Leader Mitch McConnell).

The Court first showed its radicalism by overturning Roe v. Wade, then followed with several other extremist decisions, giving the President “absolute immunity” for any crimes he commits while in office (Trump v. U.S.), sharply reducing the powers of regulatory agencies (the “Chevron Doctrine”), eroding the line between church and state (Carson v. Makin)), and more. You might reasonably wonder why President Biden didn’t push these goals sooner. As an institutionalist, he was loath to breach the separation of powers, and he knew he did not have the votes in Congress to win. Nonetheless, he is laying out important aims for the future.

President Biden wrote:

This nation was founded on a simple yet profound principle: No one is above the law. Not the president of the United States. Not a justice on the Supreme Court of the United States. No one.

But the Supreme Court’s 6-3 decision on July 1 to grant presidents broad immunity from prosecution for crimes they commit in office means there are virtually no limits on what a president can do. The only limits will be those that are self-imposed by the person occupying the Oval Office.

If a future president incites a violent mob to storm the Capitol and stop the peaceful transfer of power — like we saw on Jan. 6, 2021 — there may be no legal consequences.
And that’s only the beginning.

On top of dangerous and extreme decisions that overturn settled legal precedents — including Roe v. Wade — the court is mired in a crisis of ethics. Scandals involving several justices have caused the public to question the court’s fairness and independence, which are essential to faithfully carrying out its mission of equal justice under the law. For example, undisclosed gifts to justices from individuals with interests in cases before the court, as well as conflicts of interest connected with Jan. 6 insurrectionists, raise legitimate questions about the court’s impartiality.

I served as a U.S. senator for 36 years, including as chairman and ranking member of the Judiciary Committee. I have overseen more Supreme Court nominations as senator, vice president and president than anyone living today. I have great respect for our institutions and the separation of powers.

What is happening now is not normal, and it undermines the public’s confidence in the court’s decisions, including those impacting personal freedoms. We now stand in a breach.

That’s why — in the face of increasing threats to America’s democratic institutions — I am calling for three bold reforms to restore trust and accountability to the court and our democracy.
First, I am calling for a constitutional amendment called the No One Is Above the Law Amendment. It would make clear that there is no immunity for crimes a former president committed while in office. I share our Founders’ belief that the president’s power is limited, not absolute. We are a nation of laws — not of kings or dictators.

Second, we have had term limits for presidents for nearly 75 years. We should have the same for Supreme Court justices. The United States is the only major constitutional democracy that gives lifetime seats to its high court. Term limits would help ensure that the court’s membership changes with some regularity. That would make timing for court nominations more predictable and less arbitrary. It would reduce the chance that any single presidency radically alters the makeup of the court for generations to come. I support a system in which the president would appoint a justice every two years to spend 18 years in active service on the Supreme Court.

Third, I’m calling for a binding code of conduct for the Supreme Court. This is common sense. The court’s current voluntary ethics code is weak and self-enforced. Justices should be required to disclose gifts, refrain from public political activity and recuse themselves from cases in which they or their spouses have financial or other conflicts of interest. Every other federal judge is bound by an enforceable code of conduct, and there is no reason for the Supreme Court to be exempt.

All three of these reforms are supported by a majority of Americans — as well as conservative and liberal constitutional scholars. And I want to thank the bipartisan Presidential Commission on the Supreme Court of the United States for its insightful analysis, which informed some of these proposals.

We can and must prevent the abuse of presidential power. We can and must restore the public’s faith in the Supreme Court. We can and must strengthen the guardrails of democracy.
In America, no one is above the law. In America, the people rule.

Categories Accountability, Civil Rights, Corruption, Dark Money, Democracy, Disruption, Elections, Ethics, Extremism, Justice

Jennifer Rubin: It’s About Time for Investigation of Justice Thomas!

By dianeravitch
July 12, 2024 //
14

Jennifer Rubin was originally hired by The Washington Post to write the conservative point of view on its opinion pages. A journalist and a lawyer, Rubin found Trump to be intolerable, and she no longer writes from the right.

In this column, she commends the effort to investigate Justice Clarence Thomas and explains why:

Fed up with the justice’s stonewalling, egregious violation of judicial ethics, inaccurate legal filings and gross money grubbing from right-wing billionaires with business before the Supreme Court, Sens. Sheldon Whitehouse (D-R.I.) and Ron Wyden (D-Ore.) sent a letter to Attorney General Merrick Garland this week demanding a special counsel be appointed “to investigate possible violations of federal ethics and tax laws by Associate Justice of the Supreme Court Clarence Thomas.” Well, it’s about time someone took Thomas’s inexcusable conduct seriously. (Democratic Rep. Alexandria Ocasio-Cortez’s introduction of articles of impeachment in a Republican-controlled House, meanwhile, which followed on Wednesday, is a showy gesture but a nonstarter.)


The letter details “repeated and willful omissions of gifts and income from Justice Thomas’s financial disclosure reports required by the Ethics in Government Act.” And as the senators point out, investigations have been raised against other government officials for far less serious allegations.


This is not a complaint about failure to recuse, as reprehensible as it might be for Thomas to sit on cases concerning the insurrection in which his wife played a limited role, or about bribery; thanks to this court, such prosecutions are practically impossible. Instead, the letter concerns bread-and-butter allegations of false statements signed under oath and tax violations.


The list of issues is gobsmacking. For example: forgiveness of the principal on a $267,000 loan that was never reported as income. (“Documents obtained by the Senate Finance Committee indicate that no principal was ever repaid on the loan and that Justice Thomas only made interest payments on the loan prior to all payments ceasing on the loan. Forgiven or discharged debt is taxable income, and the Ethics in Government Act requires justices to disclose any ‘income from discharge of indebtedness.’”) This was never included on Thomas’s financial disclosure reports. Thomas has refused to say whether he accounted for the loan forgiveness on his income taxes.

Then there are the gifts — lots of gifts. The senators cite “undisclosed gifts from other wealthy donors … including private jet travel from Paul Anthony Novelly; private jet travel and country club membership from the late Wayne Huizenga; and private jet travel, luxury sports tickets, and lodging at a ranch from David Sokol.” The senator include an appendix detailing these lavish gratuities. The senators write, “Justice Thomas has claimed that some omissions were ‘inadvertent,’ and he has

amended some past reports accordingly. However, Justice Thomas has not disclosed all of the gifts that have been uncovered, and there may well be more.” Therefore, they charge: “His long history of omissions indicates a pattern of willfulness meriting investigation under the Ethics in Government Act.”


Then there are the gifts specifically from Leonard Leo — the right-wing legal impresario and former vice president of the Federalist Society who has helped pick Supreme Court justices and contrived to bring cases before the court to advance his dark money groups agenda, according to Whitehouse. The senators explain:
Last year, the Washington Post reported that Leo directed payments of at least $25,000 to a consulting firm run by Justice Thomas’s spouse, with Leo specifying that the documents related to the payments should make “[n]o mention” of Mrs. Thomas. The furtive nature of the payments raises further questions about how many such payments were orchestrated, whether legitimate services were actually rendered, and whether such payments required additional reporting by Justice Thomas. We have not yet adequately been able to investigate the extent to which any or all these undisclosed gifts were part of a coordinated gifts program to reward recipient justices.


In sum, the senators raise allegations of willfully false statements on government disclosure forms and income tax and gift tax violations. At this stage, these are allegations only. But surely there is a basis for further inquiry, the senators argue. After detailing other investigations into less egregious conduct, the senators argue that only a special counsel can properly investigate. (“Since no litigant appears before the Supreme Court more frequently than the United States government, represented by the Department of Justice, the Department may understandably hesitate to offend a member of that Court.”)

The senators are not the only ones to have advanced these arguments. In April 2023, the anti-corruption group Citizens for Responsibility and Ethics in Washington (CREW) sent a letter to Chief Justice John G. Roberts Jr. and Garland after Pro Publica broke news of lavish gifts Thomas received from another billionaire, Harlan Crow.


In that letter, CREW and several ethics experts wrote: “If true, Justice Thomas’ acceptance and failure to report these gifts and sales transactions on his annual mandatory financial disclosure statements not only undermines trust in his ability to impartially and fairly administer his duties as a member of the Court, but also threatens to corrode public confidence in the Supreme Court as an institution.” CREW’s president, Noah Bookbinder, tells me CREW never received a response.


One of the ethics experts who signed that letter, Richard Painter, tells me, “The attorney general may or may not decide to appoint a special counsel. I believe it is justified in this case.” If Garland does not appoint a special counsel or undertake any investigation, the Supreme Court justices, like the president in the new scheme of government concocted by this court, will conclude they operate in a world of criminal immunity, secure in the knowledge a partisan Senate will never remove them from the bench.
“Justice Thomas’s serious and frequent misconduct, including consistent failure to report lavish gifts from a wealthy benefactor with strong interests in the Supreme Court’s work and repeated failure to recuse from cases in which he had a clear conflict of interest, requires thorough investigation and genuine accountability,” Bookbinder tells me.

The Thomas scandal is what comes from refusing to adopt a mandatory ethics code for the Supreme Court and investing its justices with lifetime security. That leaves the rule of law dependent on the justices’ own good graces to remain ethical. That has obviously proven insufficient.


And so Whitehouse and Wyden, with no alternative, ask for the Justice Department to do its job. “The request is foundational to the rule of law,” constitutional scholar Dennis Aftergut tells me. “While many won’t expect Garland to pick it up before the election, if democracy survives November, the senators have written the bottom line for what must happen if we are to get corruption out of the court.”


Unfortunately, if felon and former president Donald Trump is elected, one can be sure no investigation will be undertaken. It therefore behooves Garland to move quickly, lest — again — justice delayed becomes justice denied.

Categories Accountability, Bigotry, Character, Corruption, Democracy, Extremism, Justice

Jim Hightower: We Can’t Let the Supreme Court Destroy Our Democracy

By dianeravitch
July 10, 2024 //
30

Jim Hightower, activist Democrat and former elected official in Texas, says it’s time for “Do-It-Yourself Democracy.” We can’t sit back and let Trump’s Supreme Court whittle away our rights and laws.

He writes:

It’s July 4th week!

Sure, do a few 12-ounce elbow bends and set off some sparklers in celebration of our people’s democratic values. But wait – why are we celebrating the Spirit of ‘76, but meekly accepting the recent tsunami of autocratic, plutocratic dictates from a sextet of extremist, right-wing, partisan lawyers? 

These six unelected Republicans, put on the Supreme Court by a tiny group of billionaire-funded political operatives, are routinely imposing their anti-woman, racist, xenophobic, homophobic, anti-worker, anti-environment, theocratic agendas on the vast majority of us who want none of the above.

Start with the fact that they are liars. Each one duped senators into giving lifetime appointments to them by loudly promising that they would never even consider rewriting the fundamental laws and legal precedents that form the egalitarian fabric of American society. Nor, each insisted, would they ever dream of being a part of a cabal working to turn the judicial branch into a repressive force routinely eliminating democratic power in order to erect a government of-by-and-for right-wing elites.

Then they proceeded, case-by-case, to do exactly what they swore on their honor they would not do. And now, with yesterday’s Trump v. United States edict, the six have haughtily attempted to rewrite the Constitution and 248 years of our People’s history by proclaiming, on their own whim, that America has an imperial presidency with executive authority to act with impunity.

We the People do not have to put up with their imperious crap. 

They’ve turned the Supreme Court into a political operation – so it’s the duty of us grassroots democracy champions to fight their usurpation, not only in the presidential race, but carrying the fight into every political forum. Don’t wait on national “leaders” – they lack the guts for standing up to runaway power. 

And while no individual can fix our democracy, a movement can. I think of a small hardware store here in Austin that had a can-do attitude, offering to help customers handle even the biggest tasks. The store’s slogan was “Together, we can do it yourself.” 

We’re collecting actions that grassroots people can take, and are collaborating with longtime friends and allies to light a fire under the butts of Democratic Party leaders. We’ll keep you updated on those efforts, but to start, here are two groups to join up with.

Share

Demand Justice has been advocating for the Judiciary Act, which would expand the court by four seats. They’re asking people to call their representatives, and to join their rapid response team. 

We’ve long been a fan of Lisa Graves (you can watch our 2022 Chat ‘n’ Chew episode with her here), and she’s teamed up with the folks at Court Accountability for a new round of intense actions called Justice Can’t Wait. They’ve shared with us a list of things you can do:

  • Share the Justice Can’t Wait updatedwebsite.
  • Raise awareness of the seeds being planted by Trump and his allies to deny the results of the 2024 election if it doesn’t go their way. Trump has refused to commit to accepting legitimate election results if he does not win, and his allies are laying the groundwork for election denial through lawsuits and false claims about election fraud.
  • Urge Congress to pass reforms clarifying the Insurrection Act, which Trump plans to invoke to deploy the military against the American people, on his first day in office.
  • Share Stand Up America’s Supreme Court Voter website, which aims to educate and mobilize voters on the impact the next president will have on the future of the U.S. Supreme Court.
  • Educate Americans on the economicthreats that the extremist Project 2025 poses. Economic concerns “consistently rank as top issues among likely voters,” and people need to understand the likely consequences and chaos for our economy and American families if Project 2025 affiliates are able to carry out their dangerous agenda.
  • Join United for Democracy in calling on Congress to rein in the out-of-control Supreme Court.
  • Drive home that this is Trump’s Supreme Court. Trump installed the corporatist majority that has taken away women’s fundamental freedoms and stripped away protections for Americans’ health and safety. Even after Trump led an insurrection, the Court that Trump built is now tipping the scales to help him win again in November and protect him from accountability for his actions.  
  • From the Hightower staff: And let’s not forget how the Supremes view actual bribery: as nothing more than a tip or a token of thanks for a job well done. They’re basically creating loopholes to legalize their own corruption!
Categories Civil Rights, Courage, Democracy, Education Reform, Justice, Trump
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