Courts and the Judiciary

Subterms

    More stories

    • 125 Shares99 Views

      in Elections

      Request for Gag Order on Trump Raises Free Speech Dilemma

      by

      By putting the prospect of political violence at the heart of their argument to limit the former president’s statements about the election case, federal prosecutors raised issues that have little precedent.The request by prosecutors that a judge impose a gag order on former President Donald J. Trump in the federal election-subversion case presents a thorny conflict between the scope of his First Amendment rights and fears that he could — intentionally or not — spur his supporters to violence.There is little precedent for how the judge overseeing the case, Tanya S. Chutkan, should think about how to weigh strong constitutional protections for political speech against ensuring the functioning of the judicial process and the safety of the people participating in it.It is one more example of the challenges of seeking to hold to account a norm-shattering former president who is being prosecuted in two federal cases — and two state cases — as he makes another bid for the White House with a message that his opponents have weaponized the criminal justice system against him.“Everything about these cases is making new law because there are so many gaps in the law,” said Paul F. Rothstein, a law professor at Georgetown University and a criminal procedure specialist. “The system is held together by people doing the right thing according to tradition, and Trump doesn’t — he jumps into every gap.”Citing a spate of threats inspired by the indictment of Mr. Trump in the election case, the special counsel overseeing the prosecutions for the Justice Department, Jack Smith, asked Judge Chutkan this month to order the former president to cease his near-daily habit of making “disparaging and inflammatory or intimidating” public statements about witnesses, the District of Columbia jury pool, the judge and prosecutors.A proposed order drafted by Mr. Smith’s team would also bar Mr. Trump and his lawyers from making — or causing surrogates to make — public statements, including on social media, “regarding the identity, testimony or credibility of prospective witnesses.” The motion cited Mr. Trump’s attacks on former Vice President Mike Pence and former Attorney General William P. Barr, who refused to go along with his efforts to overturn the 2020 election.The draft order would allow Mr. Trump to say he denies the charges “without further comment.”Jack Smith, the special counsel, asked the judge to order Mr. Trump to cease his habit of making “disparaging and inflammatory or intimidating” public statements about witnesses, the District of Columbia jury pool, the judge and prosecutors.Doug Mills/The New York TimesA version of the motion was unsealed late last week. Judge Chutkan, of the Federal District Court in Washington, has ordered Mr. Trump’s legal team to file any opposition to it by Monday and is likely to hold a hearing on the request next month. A spokesman for Mr. Trump has called the request “blatant election interference” and a corrupt and cynical attempt to deprive the former president of his First Amendment rights.Gag orders limiting what trial participants can say outside of court are not uncommon, especially to limit pretrial publicity in high-profile cases. Courts have held that orders barring participants from certain public comments are constitutional to avoid prejudicing a jury, citing the public interest in the fair and impartial administration of trials.The context of the gag request for Mr. Trump, though, is different in fundamental ways.Mr. Smith’s filing nodded to the potential for Mr. Trump’s statements to complicate the process of seating an unbiased jury in the case, which is scheduled to go to trial in March. But the request for the gag order focused primarily on a different concern: that Mr. Trump’s angry and vengeful statements about the proceedings against him are putting people in danger now.The motion cited “multiple threats” to Mr. Smith. It noted that another prosecutor, Jay I. Bratt, had been subject to “intimidating communications” after the former president targeted him in “inflammatory public posts,” falsely saying Mr. Bratt had tipped off the White House before Mr. Trump’s indictment in the case accusing him of mishandling classified documents.And it cited the case of a Texas woman who has been charged with making death threats to Judge Chutkan last month. She left the judge a voice message using a racist slur, court filings show, and said, “You are in our sights — we want to kill you.”“If Trump doesn’t get elected in 2024, we are coming to kill you, so tread lightly, bitch,” the message said, adding that “you will be targeted personally, publicly, your family, all of it.”Prosecutors connected their request to the threats and harassment that election officials and other people carrying out election-related duties experienced after Mr. Trump attacked them in late 2020 as part of his false claims that the election had been stolen.“The defendant knows that when he publicly attacks individuals and institutions, he inspires others to perpetrate threats and harassment against his targets,” the motion said, adding: “Given the defendant’s history described above and the nature of the threats to the court and to the government, it is clear that the threats are prompted by the defendant’s repeated and relentless posts.”In that sense, the request for the gag order was as much about what is sometimes called stochastic terrorism — the idea that demonizing someone through mass communication increases the chances that a lone wolf will be inspired to attack the target — as it was about more traditional concerns of keeping a jury from being influenced by statements outside of court.The request raises both legal and political issues and carries the risk of playing into Mr. Trump’s hands.The former president and his defense team have made clear that they want people to think the case is about whether he had a First Amendment right to say whatever he wanted about the election. Mr. Smith sought to head off that move by acknowledging in the indictment that Mr. Trump had a right to lie to the public and by not charging him with inciting the Capitol riot.But the gag order request is directly about what Mr. Trump is allowed to say. Moreover, it has given him more fodder to portray the case as intended to undercut his presidential campaign — and, if he is under a gag order and loses again in 2024, to once again tell his supporters that the election was rigged.Judge Tanya S. Chutkan of the Federal District Court in Washington has ordered Mr. Trump’s legal team to file any opposition to the motion by Monday.Administrative Office of the U.S. Courts, via Associated PressWhen the motion became public, Mr. Trump riffed on it with apparent glee.“They want to see if they can silence me. So the media — the fake news — will ask me a question. ‘I’m sorry, I won’t be able to answer’ — how do you think we’ do in that election?” Mr. Trump said at a summit of religious conservatives. “So we are going to have a little bit of a fun with that, I think. That’s a tough one. Can you imagine?”Implicit in the ways he could “have a little bit of a fun” is the question of how Judge Chutkan could enforce any such order if Mr. Trump skirted its edges or even boldly defied its limits. It would be one thing for her to impose a fine, but if he refused to pay or to tone down his statements, a next step for a judge in a normal case would be to order imprisonment.Any such step in this case would be legally and politically explosive.At a hearing last month, Judge Chutkan vowed to “take whatever measures are necessary to protect the integrity of these proceedings” and warned lawyers for Mr. Trump that they and their client should consider their public statements in the case.“I intend to ensure the orderly administration of justice in this case, as I would with any other case,” she said, “and even arguably ambiguous statements from parties or their counsel, if they could reasonably be interpreted to intimidate witnesses or to prejudice potential jurors, can threaten the process.”The judge also suggested that she could speed up the trial date as an alternative penalty. “The more a party makes inflammatory statements about this case, which could taint the jury pool or intimidate potential witnesses,” she said, “the greater the urgency will be that we proceed to trial quickly to ensure a jury pool from which we can select an impartial jury.”Most cases about gag orders affecting criminal defendants have focused on limits imposed on what their lawyers, not the defendants themselves, can say outside of court — in part because defense lawyers typically order their clients to say nothing in public about their cases anyway. That is one of many ways Mr. Trump operates from a different playbook.In a 1991 case, which prosecutors cited in their motion, the Supreme Court upheld local court rules that bar defense lawyers from making comments outside court that are substantially likely to materially prejudice a jury. Such a regulation, it said, “constitutes a constitutionally permissible balance between the First Amendment rights of attorneys in pending cases and the state’s interest in fair trials.”But the Supreme Court also suggested that greater speech restrictions might be permissible on lawyers because they are officers of the court. The justices have never addressed what standard a gag order on a defendant must meet to pass First Amendment muster. A handful of appeals courts have addressed gag orders imposed on trial participants who are not lawyers and set different standards.Margaret C. Tarkington, a law professor at Indiana University, Indianapolis, and a specialist in lawyers’ free-speech rights, predicted that any gag order would be more likely to survive on appeal if Judge Chutkan barred Mr. Trump only from attacking witnesses and jurors. The First Amendment provides particularly strong protections for criticism of government officials, she noted.Still, Professor Tarkington acknowledged that a gag order that still permitted demonizing the judge and prosecutors would not address much of the concern that prosecutors are raising. She also said past gag-order cases offered few guideposts because Mr. Trump is such a unique figure: His megaphone and its potential impact on his more extreme supporters — as demonstrated by the Capitol attack on Jan. 6, 2021 — puts him in a different realm.“It’s a really hard argument in normal circumstances to say the government, who is prosecuting someone, can shut them up from defending themselves in public,” Professor Tarkington said. “What makes this backward from everything else is that normally, in every criminal prosecution I can think of, the power imbalance is that the state has all the power and the defendant has none. But in this case, you have a defendant who has very significant power.”In their motion to Judge Chutkan, prosecutors also cited an appeals court ruling in 2000 that involved a rare example of a defendant who challenged a gag order. A judge had prevented all trial participants from making statements outside the court “intended to influence public opinion” about the case’s merits, and the defendant, an elected insurance commissioner in Louisiana named Jim Brown, wanted to be exempted. But the appeals court upheld it.The motion said the Brown precedent showed that the reasoning of the 1991 Supreme Court case upholding gag orders on defense lawyers “applies equally” to defendants. But prosecutors omitted another seemingly relevant factor: The gag order was lifted for about two months to avoid interfering with Mr. Brown’s re-election campaign and reimposed only after the election was over.“Brown was able to answer, without hindrance, the charges of his opponents regarding his indictment throughout the race,” the appeals court noted, adding, “The urgency of a campaign, which may well require that a candidate, for the benefit of the electorate as well as himself, have absolute freedom to discuss his qualifications, has passed.” More

    • 63 Shares169 Views

      in Elections

      Donald Trump’s Abortion Shell Game

      by

      As a candidate for president in 2016, Donald Trump promised to put “pro-life justices” on the Supreme Court. He even issued a list of potential nominees that featured some of the most conservative judges in the country.As president, Trump made good on his promise, appointing three of the six justices who voted last year to overturn the Supreme Court’s precedent in Roe v. Wade and end, after years of erosion, the constitutional right to an abortion.Each of these appointments — Neil Gorsuch in 2017, Brett Kavanaugh in 2018 and Amy Coney Barrett in 2020 — was a landmark occasion for the Trump administration and a major victory for the conservative movement. Trump used his court picks to energize Republican voters ahead of the 2020 presidential election and, later, took credit for the court’s decision in Dobbs v. Jackson Women’s Health Organization, the case that made Roe obsolete.The Dobbs decision, Trump said in a statement, was “the biggest WIN for LIFE in a generation” and was “only made possible because I delivered everything as promised, including nominating and getting three highly respected and strong Constitutionalists confirmed to the United States Supreme Court.” It was, he continued, “my great honor to do so!”As recently as last week, in remarks to the Concerned Women of America Summit, Trump bragged about the anti-abortion record of his administration. “I’m also proud to be the most pro-life president in American history,” he said. “I was the first sitting president ever to attend the March for Life rally right here in Washington, D.C.” The biggest thing, he emphasized, was his appointment of three Supreme Court justices who “ruled to end the moral and constitutional atrocity known as Roe v. Wade.”“Nobody thought that could be done,” Trump said.Whether or not Trump is personally opposed to abortion is immaterial. The truth, established by his record as president, is that he is as committed to outlawing abortion in the United States as any other conservative Republican.There is no reason, then, to take seriously his remarks on Sunday, in an interview on NBC’s “Meet the Press,” where he criticized strict abortion bans and tried to distance himself from the anti-abortion policies of his rivals for the Republican presidential nomination. “I think what he did is a terrible thing and a terrible mistake,” Trump said, taking aim at Gov. Ron DeSantis’s decision to sign a six-week ban into law in Florida in April. Trump also rejected the 15-week federal ban pushed by his former vice president, Mike Pence, and promised to negotiate a compromise with Democrats on abortion. “Both sides are going to like me,” he said. “I’m going to come together with all groups, and we’re going to have something that’s acceptable.”Trump is triangulating. He sees, correctly, that the Republican Party is now on the wrong side of the public on abortion. By rejecting a blanket ban and making a call for compromise with Democrats, Trump is trying to fashion himself as an abortion moderate, a strategy that also rests on his pre-political persona as a liberal New Yorker with a live-and-let-live attitude toward personal behavior.There is a real chance this could work. In 2016, voters did not see Trump as a conservative figure on either abortion or gay rights, despite the fact that he was the standard-bearer for the party that wanted restrictions on both. It would be a version of the trick he pulled on Social Security and Medicare, where he posed as a defender of programs that have been in the cross-hairs of conservative Republicans since they were created.But there’s an even greater chance that this gambit falls flat. There are the Democrats, who will have his record to highlight when they go on the offensive next year, assuming he’s on the ballot as the Republican nominee. There is the political press, which should highlight the fact that Trump is directly responsible for the end of Roe (so far, it mostly has). And there are his rivals, like DeSantis, who are already pressing Trump to commit to further anti-abortion policies in a second term.It’s probably no accident then that Trump went to Iowa — where the Florida governor is investing the full resources of his campaign — to remind voters of his role in ending Roe. “They couldn’t get the job done. I got the job done,” Trump said. “I got it done. With the three Supreme Court justices that I appointed, this issue has been returned to the states, where all legal scholars on both sides said it should be. Of course, now the pro-life community has tremendous negotiating power.”Trump is no longer the singular figure of 2016. He is enmeshed within the Republican Party. He has real commitments to allies and coalition partners within the conservative movement. He is the undisputed leader of the Republican Party, yes, but he can’t simply jettison the abortion issue, which remains a central concern for much of the Republican base.“We’re at a moment where we need a human rights advocate, someone who is dedicated to saving the lives of children and serving mothers in need. Every single candidate should be clear on how they plan to do that,” Marjorie Dannenfelser, president of Susan B. Anthony Pro-Life America, said in a statement issued in response to Trump’s comments on “Meet the Press.”Trump will have to talk about abortion again and again, in a context that does him no political favors.There is a larger point to make here. Because we are almost certain to see a rematch between Joe Biden and Donald Trump, it is easy to think that the next election will be a replay of the previous one in much the same way that the 1956 contest between Dwight Eisenhower and Adlai Stevenson was virtually identical to the one in 1952.But conditions will be very different in 2024 from what they were in 2020. Trump will not be an incumbent and, according to my colleague Nate Cohn, he may not have the same scale of Electoral College advantage he enjoyed in his previous races. He’ll be under intense legal scrutiny and, most important, he’ll be a known quantity.The public won’t have to imagine a Trump presidency. It will already know what to expect. And judging from Trump’s attempt to get away from his own legacy, he probably knows that a majority of the voting public isn’t eager to experience another four years with him at the helm.The Times is committed to publishing a diversity of letters to the editor. We’d like to hear what you think about this or any of our articles. Here are some tips. And here’s our email: letters@nytimes.com.Follow The New York Times Opinion section on Facebook, Twitter (@NYTopinion) and Instagram. More

    • 88 Shares159 Views

      in Elections

      Democracy in Bangladesh Is Quietly Being Crushed

      by

      Bangladesh’s multiparty democracy is being methodically strangled in crowded courtrooms across this country of 170 million people.Nearly every day, thousands of leaders, members and supporters of opposition parties stand before a judge. Charges are usually vague, and evidence is shoddy, at best. But just months before a pivotal election pitting them against the ruling Awami League, the immobilizing effect is clear.About half of the five million members of the main opposition party, the Bangladesh Nationalist Party, are embroiled in politically motivated court cases, the group estimates. The most active leaders and organizers face dozens, even hundreds, of cases. Lives that would be defined by raucous rallies or late-night strategizing are instead dominated by lawyers’ chambers, courtroom cages and, in Dhaka, the torturously snail-paced traffic between the two.One recent morning, a party leader, Saiful Alam Nirob, was ushered into Dhaka’s 10-story magistrate court in handcuffs. Mr. Nirob faces between 317 and 394 cases — he and his lawyers are unsure exactly how many. Outside the court, a dozen supporters — facing an additional 400 cases among them — waited in an alley whose bustle was cleared only by intermittent monsoon downpours and the frequent blowing of a police whistle to open the way for another political prisoner.The police ushering Saiful Alam Nirob, an opposition leader, to court in Dhaka in June. He faces hundreds of court cases.A rally by supporters of the ruling Awami League in July.“I can’t do a job anymore,” said one of the supporters, Abdul Satar, who is dealing with 60 cases and spends three or four days a week in court. “It’s court case to court case.”In recent years, Bangladesh has been known mostly as an economic success story, with a strong focus on a garment export industry that brought in a steady flow of dollars, increased women’s participation in the economy and lifted millions out of poverty. A country once described by American officials as a basket case of famine and disease appeared to be overcoming decades of coups, countercoups and assassinations.But under the surface, Prime Minister Sheikh Hasina has waged a campaign of political consolidation whose goal, opposition leaders, analysts and activists say, is to turn the South Asian republic into a one-party state.Over her 14 years in office, she has captured Bangladesh’s institutions, including the police, the military and, increasingly, the courts, by filling them with loyalists and making clear the consequences for not falling in line.She has wielded these institutions both to smother dissent — her targets have also included artists, journalists, activists and even the Nobel Peace Prize winner Muhammad Yunus — and to carry out a deeply personal campaign of vengeance against her political enemies.With an election expected in December or January, the country again feels on the verge of eruption. The opposition sees the vote as a last fight before what could be its full vanquishing. Ms. Hasina’s lieutenants, for their part, say in no uncertain terms that they cannot let the B.N.P. win — “they will kill us” if they come to power, as one aide put it.When asked during an interview in her Dhaka office about using the judiciary to harass the opposition, Ms. Hasina sent an aide out of the room to retrieve a photo album. It was a catalog of horrors: graphic pictures of maimed bodies after arsons, bombings and other attacks.Prime Minister Sheikh Hasina at her office in Dhaka in June.Bangladesh’s economic success story in recent years has overshadowed its slide toward a one-party state. “It is not political, it is not political,” the prime minister said of the court cases, pointing to the visuals as examples of the “brutality” of the B.N.P. “It is because of their crime.”B.N.P. leaders say that about 800 of their members have been killed and more than 400 have disappeared since Ms. Hasina came to power in 2009. In the interview, Ms. Hasina said the B.N.P., when it was in power, had done much the same to her party, jailing and killing her supporters by the thousands.“They started this,” Ms. Hasina said.The SurvivorsThe story of Bangladesh over the past three decades has largely been one of bitter rivalry between two powerful women — Ms. Hasina, 75, and Khaleda Zia, 77, the leader of the B.N.P. and the country’s first female prime minister.Ms. Hasina’s father, Sheikh Mujibur Rahman, was Bangladesh’s most prominent independence leader when the country broke away from Pakistan in 1971. He was killed four years later in a military coup, and much of his family was massacred.Ms. Zia was married to Ziaur Rahman, the army chief who came to power in the bloody chaos that followed Sheikh Mujib’s murder. Mr. Rahman himself was assassinated by soldiers in 1981.For much of the time since, the two surviving women have been locked in a fight over who defines Bangladesh’s democracy — and who is entitled to rule over it.“Actually it was my struggle to establish democracy,” Ms. Hasina said. Pointing to Ms. Zia’s husband, she added: “This opposition, you know, was created by a military dictator.”The B.N.P. says it was the one that restored multiparty democracy after Ms. Hasina’s father declared the country a one-party state — an unfinished project that the B.N.P. says Ms. Hasina is determined to complete.The story of Bangladesh in recent decades has largely been one of bitter rivalry between two powerful women: Ms. Hasina and Khaleda Zia, seen on a large poster inside the office of the Bangladesh Nationalist Party in Dhaka. Mirza Fakhrul Islam Alamgir, the B.N.P.’s secretary general and de facto leader.“They don’t believe in democracy,” said Mirza Fakhrul Islam Alamgir, the B.N.P.’s secretary general.In 2018, Ms. Zia was jailed on graft charges. Today, she lives under house arrest, where, in deteriorating health, she is reduced to watching television and reading the newspaper, her aides say.Her son Tarique Rahman, who was implicated in a 2004 attack in which a dozen grenades were hurled at Ms. Hasina during a rally — a charge the B.N.P. denies — lives in exile in London. Mr. Alamgir, the party’s de facto leader in their absence, spends much of his time dealing with the 93 court cases he faces.Ms. Hasina has intensified her assault on the opposition as she has found herself in her most politically vulnerable position in years.Just as Bangladesh was working to get its garment industry back on track after the pandemic disrupted global demand, Russia’s invasion of Ukraine caused a spike in the cost of imported energy and food, pushing the country’s supply of dollars perilously low.“It has put tremendous pressure on our economy,” Ms. Hasina said.Bangladesh was working to get its garment industry back on track after the pandemic when Russia’s invasion of Ukraine caused a spike in the cost of imported energy and food.Anger has risen in Bangladesh over the rising food prices and power cuts.The battered opposition saw an opportunity in anger over rising food prices and power cuts, and, fearing an unfair election, was eager to take the showdown to the streets after Ms. Hasina refused to appoint a neutral caretaker administration to oversee the vote.During a rare large rally in June, B.N.P. speakers demanded free elections and the release of political prisoners. But as supporters marched across Dhaka, their chants offered an indication of the bubbling tensions: “Set fire to Hasina’s throne” and “A flood of blood will wash away the injustice.”As the police held back and allowed the rally and march to proceed, ruling-party leaders staged a rival rally where speakers acknowledged that the European Union and the United States were watching Bangladesh’s democracy. The U.S. government has imposed sanctions on Ms. Hasina’s senior security officers and threatened visa restrictions, and American and European officials have made several visits to Bangladesh in recent months.A few weeks after the B.N.P. rally, though, an unsettled Ms. Hasina responded with force. When the party’s supporters tried to hold another large rally, the police met them with clubs and tear gas — and 500 fresh court cases. The crackdown showed that, even as the West issues warnings, it ultimately has limited sway over a leader who has deftly balanced ties with Asia’s two giants, China and India.Opposition supporters during their rally against the governing party in June.Ms. Hasina has governed Bangladesh since 2009 and is seeking re-election in the coming months.Increasingly, the government’s powers are wielded en masse, said Ashraf Zaman, a Bangladeshi lawyer and activist in exile who works with the Asian Human Rights Commission. The police round up scores of people in one case — accusing them of “anti-state activities” or of blocking police work — and leave room for more to be added by listing dozens or even hundreds of “unnamed persons” in the same case. Each individual case can involve multiple charges.By the time the evidence, often flimsy, is put in front of a judge, the accused have spent months in jail, often at risk of harassment or torture in custody, human rights activists say. Bail, lawyers and legal experts said, has become harder to get in political cases. If the accused does get released, the government presents it as a magnanimous gift, not as acknowledgment that the person should not have been detained in the first place.Defense lawyers argue in court that their client “has a family, he has already spent this long time, if you kindly give him bail it would be appreciated, and the prosecution ‘allows’ it,” Mr. Zaman said.The CourtOne of the busiest places for political cases is Dhaka’s magistrate court, where Mr. Nirob, the B.N.P. leader facing more than 300 cases, was taken one morning in June. Syed Nazrul, Mr. Nirob’s lawyer, said his client had at least one case filed against him in every police station in the city.Before proceedings begin each morning, about a dozen lawyers cram into Room 205 at the bar association building, where Mr. Nazrul checks papers one last time. On June 12, the office’s large ledger showed that the team was defending clients in 33 cases that day, 32 of them involving the B.N.P.Lawyers crammed into a room at the bar association building in Dhaka in June. Many represent political prisoners. Syed Nazrul, a lawyer, inspecting documents for cases filed against a B.N.P. leader.Then the lawyers make their way through the narrow alley — buzzing with vendors selling anything from chicken to marigold to replacement teeth — that connects the bar association with the crowded courthouse.“The hearing takes, maximum, 20 minutes. All day is spent back and forth in this harassment,” Mr. Nazrul said.Even those fighting for causes beyond the bitter rivalry between the two political parties increasingly pay a heavy price.Didarul Bhuiyan, a computer engineer, returned to Dhaka after completing his studies in Australia. He set up a small software company, got married and raised three sons. But a question nagged at him: Had he made the right decision in returning?Mr. Bhuiyan became active in a civil society movement aimed at strengthening checks in the system, so his children would not be forced to pursue a life abroad. “Whenever someone gets to power, they go above the law,” he said.After Mr. Bhuiyan’s group criticized the management of relief funds during the pandemic, security forces in civilian clothes took him away in a van with tinted windows.Didarul Bhuiyan with his family in Dhaka in July. He spent five months in jail after criticizing the government’s management of Covid relief money. A woman and her relatives waving at people on a bus leaving court in Dhaka.“The incidents of disappearances were common; we worried about what could happen to him,” said his wife, Dilshad Ara Bhuiyan.As Ms. Bhuiyan went from court to court hoping to apply for bail for her husband, they refused to hear his case, even though the government had filed no charges against him. “The judge would see the name, the case, and say, ‘Sorry, I can’t,’” Mr. Bhuiyan said.After five months in jail, he got bail. The police did not file charges until about a year after his arrest, leveling vague accusations of treason and conspiracy against the state. As a central piece of evidence, the police submitted a Facebook post by Mr. Bhuiyan — which he had written months after his release. A time stamp marked a screenshot as having been taken three hours before.A fellow activist, Mushtaq Ahmed, who was detained around the same time as Mr. Bhuiyan, died in jail. A large portrait of Mr. Ahmed sits on a drawer in Mr. Bhuiyan’s home office.Mr. Bhuiyan called Mr. Ahmed’s death political murder.“Putting someone in jail for 10 months without any trial whatsoever is good enough to kill someone,” he said. More

    • 150 Shares129 Views

      in Elections

      ¿Cómo influirán los juicios a Trump en la confianza hacia los jurados?

      by

      Casi el 60 por ciento de los ciudadanos dice confiar en los jurados. Un nuevo sondeo brinda un vistazo a los pensamientos de cierto tipo de personas, que podrían decidir el destino del expresidente.En un momento en que la confianza en las instituciones está en su punto más bajo, los estadounidenses parecen seguir confiando en sus conciudadanos que conforman los jurados.Según una nueva encuesta, casi el 60 por ciento de los estadounidenses afirma tener por lo menos bastante confianza en los jurados, más que en cualquier otro grupo del sistema judicial.Pero es posible que pronto esa confianza se ponga a prueba porque todo apunta a que el expresidente Donald Trump tendrá que enfrentar varios juicios el año próximo.Cuando se les preguntó en específico sobre los próximos juicios contra Trump, la mayoría de los estadounidenses —demócratas, republicanos e independientes— dijeron que no creían que los tribunales pudieran conformar jurados imparciales.Y, sin duda, esos jurados se enfrentarán a un intenso escrutinio, lo cual para muchos es razón suficiente para no querer prestar este servicio a la nación. De hecho, la mayoría de los estadounidenses dijeron no estar interesados en formar parte de un jurado en un juicio contra Trump.El estudio, realizado en julio por la empresa de encuestas Ipsos y que se centró en los estadounidenses que han formado parte de un jurado en algún momento de los últimos 10 años, proporciona un retrato del tipo de estadounidense que suele formar parte de los jurados y un raro vistazo a los pensamientos del tipo de personas que podrían decidir el destino de Donald Trump.Se reveló que quienes ya habían desempeñado esta actividad eran mucho más propensos que el público en general a confiar en quienes forman parte del sistema de justicia penal, como los jueces federales, estatales y los magistrados de la Corte Suprema, los abogados, los miembros del personal no jurídico y las autoridades policiales.Los datos demográficos de quienes han actuado como jurados también difieren bastante de los del público en general. Es más probable que sean mayores, más ricos y con un nivel educativo más alto. Dos terceras partes de quienes han formado parte de un jurado tienen más de 50 años, en comparación con menos de la mitad del público en general. Además, tienden a ser un poco más demócratas que el resto de los estadounidenses y los hombres son más propensos a formar parte de un jurado que las mujeres.Pero, al parecer, los elevados niveles de confianza en el sistema judicial que mostraron los exmiembros de jurados (la encuesta no preguntaba por grupos e instituciones no jurídicos, como el Congreso) se debían más a su experiencia dentro del sistema que a un reflejo de sus diferentes características demográficas.Quienes formaron parte de algún jurado fueron 20 puntos porcentuales más propensos que los estadounidenses en general a afirmar que confiaban en los abogados defensores y 30 puntos porcentuales más propensos a decir que confiaban en los fiscales, como los de distrito o estatales.También fueron más propensos que el público en general a decir que confiaban en los jueces, aunque surgió una brecha partidista cuando se les preguntó acerca de su confianza en los magistrados de la Corte Suprema: los republicanos expresaron más confianza que los demócratas. Sin embargo, cuando se les consultó por los jueces estatales y federales, no hubo brecha partidista entre quienes habían sido miembros de un jurado ni entre el público en general.“Luego de haber entrevistado a muchos jurados, puedo decir que su servicio les ha aportado una visión más positiva del sistema”, afirmó Stephen Adler, ex redactor jefe de Reuters y periodista jurídico que escribió un libro sobre el sistema de jurados, The Jury: Trial and Error in the American Courtroom, y colaboró con Ipsos en el estudio.“Si uno forma parte de un jurado, aunque solo sea por un día o dos, se adentra en un entorno muy serio y enfocado”, explicó Adler. “Tener ese contacto real hace que la gente, sin importar sus nociones preconcebidas, tenga una mejor opinión de cada actor del proceso, hasta llegar a los jueces”.Aunque el 58 por ciento de los estadounidenses dijo confiar en los jurados, el 71 por ciento, incluida una mayoría de demócratas y republicanos, dijo que no confiaba en que los tribunales pudieran encontrar jurados “dispuestos a dejar de lado sus opiniones previas sobre Donald Trump y decidir el caso basándose en las pruebas presentadas”.Y cuando se les preguntó sobre el trato que reciben los diferentes grupos por parte del sistema judicial, el 71 por ciento de los estadounidenses afirmó que los funcionarios electos actuales o anteriores obtienen beneficios especiales, incluidos porcentajes similares de demócratas y republicanos. Quienes habían formado parte de un jurado fueron incluso más propensos que el público en general a decir que los funcionarios reciben un trato especial.El público general fue más propenso a señalar como beneficiarios de un trato especial a los ricos.Los próximos juicios de Trump convocarán a residentes de los lugares donde se presentaron los casos para que sean parte del jurado y, dependiendo del sitio, su composición podría presentar dificultades para el expresidente. En el caso de Georgia, los posibles jurados procederán del condado de Fulton, que tiende a ser de izquierda. El caso federal sobre los sucesos del 6 de enero de 2021 se celebrará en Washington, una ciudad liberal donde ese día aún genera reacciones viscerales y el caso del pago en el que está implicada Stormy Daniels se celebrará en el distrito de Manhattan, en Nueva York, también conocido por ser muy demócrata en su composición. No obstante, es probable que el caso de los documentos clasificados se celebre en Fort Pierce, Florida, y el jurado podría provenir de los condados circundantes, en los cuales Trump ganó en 2020.Sin duda, los fiscales y los abogados defensores serán muy cuidadosos para seleccionar al jurado. En esos casos, los fiscales necesitarán un veredicto unánime para tener éxito; pero Trump solo necesita una negativa para lograr que se anule un juicio.Adler señaló que las posturas políticas no impiden formar parte de un jurado. “La ley no dice que debes desconocer el caso”, afirmó. “La ley dice que tienes que tener la capacidad de ser justo e imparcial”.Los estadounidenses se mostraron divididos en cuanto a su propio interés en formar parte de alguno de los jurados de Trump. Un poco más del 50 por ciento dijo no estar interesado en formar parte, con escasas diferencias entre los simpatizantes de los dos partidos.Haber sido miembro de un jurado no aumentó las expectativas de los estadounidenses de que Trump pueda conseguir un jurado imparcial, pero quienes ya lo hicieron se mostraron más abiertos a participar: poco más de la mitad dijo que estaría interesado en ser jurado de uno de sus juicios.Ruth Igielnik es editora de encuestas del Times, donde redacta y analiza estudios. Antes fue investigadora principal en el Centro de Investigaciones Pew. Más sobre Ruth Igielnik More

    • 138 Shares199 Views

      in Elections

      Can Trump Appeal His Federal Election Trial Date? What to Know.

      by

      The ex-president vowed to appeal a judge’s decision to schedule the start on his trial the day before Super Tuesday. He can’t disrupt the trial that way, legal experts say — but there is a longer-shot possibility.Former President Donald J. Trump immediately vowed to challenge the March 4 start date for his criminal trial over his efforts to overturn the 2020 election, raising questions of whether or how he could try to push back the timing of the case.“I will APPEAL!” Mr. Trump wrote on social media shortly after Judge Tanya S. Chutkan issued her order on Monday.But despite complaining about the date, a lawyer for Mr. Trump, John Lauro, said in court that the defense team would abide by her decision “as we must.” Mr. Lauro had proposed the trial begin in April 2026, citing the volume of evidence defense lawyers needed to study, while prosecutors had suggested starting in January.Here is a closer look.Why is March 4 awkward?The date comes in the middle of an already crammed calendar for Mr. Trump, who faces an array of criminal cases and civil lawsuits as he seeks the 2024 Republican presidential nomination.In particular, as Mr. Trump noted, the day after the trial would begin is Super Tuesday, when voters in over a dozen states will cast their primary votes. That voting will take place amid the likelihood of negative headlines pegged to the start of the trial, and his ability to travel and hold rallies campaigning for primaries in subsequent weeks is likely to be limited.Defendants are generally required to be present at their trials. After preliminary matters like jury selection, prosecutors have estimated they will need about four to six weeks to present their case, after which defense lawyers will also have an opportunity to call additional witnesses.Are trial calendars even subject to appeal?Typically, no, but there are complexities.First, Mr. Lauro could file a motion asking Judge Chutkan to reconsider the timing and fleshing out his argument that March 4 does not give the defense enough time to adequately prepare.But if she declines to change it, decisions by a Federal District Court judge over a prospective trial calendar are not usually considered subject to an immediate appeal. Instead, if a claimed problem can be remedied by later overturning any guilty verdict, an appeal raising that issue must wait until after the trial.Indeed, if the former president is convicted, Mr. Lauro appears to be laying the groundwork for Mr. Trump to argue in an appeal after the trial that the start date violated his constitutional right to have meaningful legal representation. Mr. Lauro told the judge on Monday that the defense team would not be able to provide adequate representation to Mr. Trump if it had to be prepared by March 4. Such a trial date would deny his client the opportunity to have effective assistance of counsel, he added.But Mr. Trump has another way to ask a higher court to review the calendar before the trial starts. It is called a petition for a writ of mandamus, and while it is not technically considered to be an appeal, legal experts say, it looks very similar.What is a writ of mandamus?It is a judicial order to a lower-court judge mandating some action. It functions as a safety release valve, allowing what are essentially early appeals. It is reserved for extraordinary situations where a judge has made a mistake that will cause a defendant irreparable harm, so the normal process of waiting until after any guilty verdict to raise the issue on appeal could not provide a remedy.Thus, while Mr. Trump would normally have to wait until after the trial to ask a higher court to review Judge Chutkan’s calendar decision, his defense team could, in theory, try to short-circuit that process by filing a mandamus petition to the Court of Appeals for the District of Columbia Circuit — or even directly to the Supreme Court.Is it easy to win such an order?No. In general, a mandamus petition is very likely to be denied, legal experts say. Higher courts, reluctant to disrupt the ordinary judicial process, have set a steep bar before they agree to intervene this way.In a 1999 ruling, for example, the D.C. Circuit said it would not even consider a mandamus petition based on an argument that the trial judge had made a clearly wrong decision since the problem could be addressed later through an ordinary appeal.“As we have seen, any error — even a clear one — could be corrected on appeal without irreparable harm,” the judges wrote.In a 2004 ruling, the Supreme Court said the right to relief must be “clear and indisputable” and there must be no other adequate means to obtain it. And even then, it said, a higher court still has discretion to decline issuing such an order if it nevertheless believes that intervening would not be “appropriate under the circumstances.”Does Trump have grounds for a mandamus petition?By itself, the objection raised by Mr. Lauro — that March 4 will not give Mr. Trump’s lawyers adequate time to prepare — would almost certainly fall short as a reason for a higher court to intervene early, according to Paul F. Rothstein, a Georgetown University law professor and specialist in criminal procedure.But Professor Rothstein said it was harder to predict what would happen if Mr. Trump’s team also raised an objection the former president has made in his public comments: that the trial date interferes with the election. There is a stronger argument for a claim of irreparable harm since various primaries will be over by the time of a verdict.Still, there is scant precedent to guide a higher court’s decision about whether a trial date’s effect on an election is sufficient to consider intervening early. And even if so, he said, it is also uncertain where the higher court might land on whether the public interest is better served by delaying a trial or by letting it go forward so voters can know about a major candidate’s criminality as soon as possible.“Like so many things with these unprecedented questions that the Trump cases present, the law does not have a definite answer,” Prof. Rothstein said. More

    • 163 Shares129 Views

      in Elections

      Mark Meadows Testifies in Bid to Move Georgia Trump Case to Federal Court

      by

      Mark Meadows, a former White House chief of staff, told a judge he believed his actions regarding the 2020 election fell within the scope of his job as a federal official.A battle over whether to move the Georgia racketeering case against Donald J. Trump and his allies to federal court began in earnest on Monday, when Mark Meadows, a former White House chief of staff, testified in favor of such a move before a federal judge in Atlanta.Under questioning by his own lawyers and by prosecutors, Mr. Meadows stated emphatically that he believed that his actions detailed in the indictment fell within the scope of his duties as chief of staff. But he also appeared unsure of himself at times, saying often that he could not recall details of events in late 2020 and early 2021. “My wife will tell you sometimes that I forget to take out the trash,” he told Judge Steve C. Jones of the U.S. District Court for the Northern District of Georgia.At another point during the daylong hearing, he asked whether he was properly complying with the judge’s instructions, saying, “I’m in enough trouble as it is.”The effort to shift the case to federal court is the first major legal fight since the indictment of Mr. Trump, Mr. Meadows and 17 others was filed by Fani T. Willis, the district attorney of Fulton County, Ga. The indictment charges Mr. Trump and his allies with interfering in the 2020 presidential election in the state. Mr. Meadows is one of several defendants who are trying to move the case; any ruling on the issue could apply to all 19 defendants.Mr. Meadows testified that Mr. Trump directed him to set up the now-famous phone call on Jan. 2, 2021, between Mr. Trump and Brad Raffensperger, the Georgia secretary of state. During the call — a focus of the case — Mr. Trump pressed Mr. Raffensperger and said he wanted to “find” nearly 12,000 more Trump votes, enough to reverse his defeat in Georgia.Mr. Meadows said Mr. Trump wanted to make the call because he believed that fraud had occurred, and wanted to resolve questions about the ballot signature verification process. “We all want accurate elections,” Mr. Meadows said at one point.Mr. Raffensperger, a Republican who is the state’s top elections official, also testified after being subpoenaed by the prosecution. He recounted how he had ignored earlier calls from Mr. Meadows — he said he “didn’t think it was appropriate” to talk to him while Mr. Trump was contesting the state’s results — and initially tried to avoid the Jan. 2 call with Mr. Trump. Under questioning by the prosecution, he characterized it as “a campaign call.”“Outreach to this extent was extraordinary,” he said of the calls from Mr. Meadows and Mr. Trump.Monday’s hearing marked a dramatic inflection point in the case: Mr. Meadows, one of the highest-profile defendants, faced Fulton County prosecutors for the first time. Mr. Raffensperger recounted the threats against him, his wife and election workers after Mr. Trump made unfounded allegations about Georgia voter fraud. And Mr. Trump’s distinctive voice filled the courtroom as prosecutors played snippets of the Jan. 2 call.“We won the state,” Mr. Trump said.If the effort to move the case to federal court succeeds, it could benefit the Trump side by broadening the jury pool beyond Fulton County into outlying counties where the former president has somewhat more support.It could also slow down at least some of the proceedings. If the case remains in state court, three of the defendants are likely to face trial starting in October. Kenneth Chesebro has already been granted an early trial, and Sidney Powell has sought the same. A lawyer for John Eastman, another defendant, has said he, too, will seek a speedy trial.Removing a case to federal court requires persuading a judge that the actions under scrutiny were carried out by federal officers as part of their official business. Earlier this year, Mr. Trump failed in his attempt to move a New York State criminal case against him to federal court; his argument in that case was seen as particularly tenuous.Mr. Meadows was cross-examined by Anna Cross, a veteran prosecutor who has worked for district attorneys in three Atlanta area counties. She continually pressed him on what kind of federal policy or interest he was advancing in carrying out what prosecutors have described in court documents as political acts in service of the Trump campaign — and thus not grounds for removal to federal court.Mr. Meadows and his lawyers argue that the job of chief of staff sometimes seeps into the realm of politics by its very nature, and that the local district attorney is essentially operating beyond her power by seeking to delineate what a powerful federal official’s job should and should not be.Ms. Cross noted to Mr. Meadows that he had visited suburban Cobb County, Ga., where a ballot audit was taking place, after a meeting with William P. Barr, who was then the U.S. attorney general. During the meeting, Mr. Barr dismissed election fraud claims as unsupported by facts. Mr. Meadows replied that in his mind, there were still allegations worthy of investigation.The arguments echoed those made in filings before the hearing by the prosecution and Mr. Meadows’s lawyers. Mr. Meadows, along with all 18 other defendants, is charged with racketeering. Along with Mr. Trump, he is also accused of soliciting Mr. Raffensperger to violate his oath of office. (Mr. Raffensperger, a Republican, has written that he felt he was being pressured to “fudge the numbers.”)During his testimony, Mr. Meadows discussed the trip he made to Cobb County during its audit of signatures on mail-in absentee ballots. He was turned away after trying to get into the room where state investigators were verifying the signatures. Mr. Meadows said he had been in the area visiting his children who live there, and went to the auditing location because he was “anticipating” that Mr. Trump would eventually bring up the Cobb County review. He said what he found was “a very professional operation.”The case continues to move forward in state court. On Monday, the judge, Scott McAfee, scheduled arraignments of Mr. Trump and the other defendants for Sept. 6. It is possible that some or all of the arraignments will not be conducted in person, given the heightened security requirements involving a former president.For the next few weeks at least, the case will be wrangled by two different judges working in courthouses a few blocks apart in downtown Atlanta. Judge McAfee, of Fulton County Superior Court, is an appointee of Georgia’s Republican governor, Brian Kemp, and a member of the conservative Federalist Society, though he also once worked for Ms. Willis and is well regarded by many lawyers on both sides of the case.Judge Jones, an Obama appointee, has been moving quickly regarding the removal question. In 2019, he upheld Georgia’s purge of nearly 100,000 names from its voter rolls, over the objections of liberal activists. In 2020, he blocked a six-week abortion ban from taking effect in the state.The Georgia case is the fourth criminal indictment of Mr. Trump this year. If Mr. Trump is elected president again, he could theoretically try to pardon himself for any federal convictions. But regardless of whether the Georgia case is tried in state or federal court, it concerns state crimes, which are beyond the pardon power of presidents.Christian Boone More

    • 163 Shares159 Views

      in Elections

      Americans Still Put Their Trust in Juries. Will Trump’s Trials Break That Faith?

      by

      A new survey provides a portrait of the type of American who serves on a jury and a rare window into the thoughts of the kinds of people who may decide Donald Trump’s fate.At a time when trust in institutions is at an all-time low, Americans still seem to have faith in their fellow citizens serving on juries.Nearly 60 percent of Americans say they have at least a fair amount of trust in juries, according to a new survey — higher than for any other group in the judicial system.But that trust may soon be put to the test, as former President Donald J. Trump appears to be headed for multiple trials in the coming year.When asked specifically about Mr. Trump’s upcoming trials, a majority of Americans — Democrats, Republicans and independents — said they did not think the courts would be able to seat impartial jurors.And those jurors will, no doubt, face intense scrutiny, which for many is reason enough to not want to serve. In fact, a majority of Americans said they were not personally interested in serving on a jury for Mr. Trump.The study, conducted in July by the polling firm Ipsos, focused on Americans who have served on a jury at some point in the last 10 years, providing a portrait of the type of American who serves and a rare window into the thoughts of the kinds of people who may decide Mr. Trump’s fate.It found that jurors were far more likely than the general public to trust those in the criminal justice system, such as judges at the federal, state, and Supreme Court level, attorneys, nonlegal staff members and law enforcement.The demographics of those who have served also differ notably from those of the general public. They are more likely to be older, wealthier and more educated. Two thirds of those who have served on a jury are over 50, compared with less than half of the general public. Former jurors skew slightly more Democratic than all Americans, and men are more likely than women to have served.But it appeared that the elevated levels of trust in the judicial system displayed by former jurors (the survey did not ask about nonlegal groups and institutions, such as Congress) were more a result of the jurors’ experience within the system than a reflection of their differing demographics.Jurors were 20 percentage points more likely than Americans overall to say they trusted defense attorneys, and 30 percentage points more likely to say they trusted prosecuting attorneys such as district or state attorneys.Jurors were also more likely than members of the general public to say that they trust judges, though a partisan gap emerged when they were asked about their trust in Supreme Court justices, with Republicans expressing more trust than Democrats. That partisan divide largely did not exist among jurors, or the general public, when asked about state and federal judges.“Having interviewed many jurors, their jury service does bring a more positive view of the system,” said Stephen Adler, the former editor in chief of Reuters and legal reporter who wrote a book about the jury system, “The Jury: Trial and Error in the American Courtroom,” and worked with Ipsos on the study.“If you’re sitting on a jury, even for a day or two, you get a window into a very serious and focused environment” Mr. Adler said. “Having that actual contact makes people, regardless of their preconceived notions, feel better about every actor in the process, all the way up to the judges.”Even as 58 percent of Americans trusted juries, 71 percent of Americans — including a majority of Democrats and Republicans — said they were not confident the courts would be able to find jurors “willing to put aside their prior beliefs about Donald Trump and decide the case based on the evidence presented.”And when asked about how different groups get treated by the justice system, 71 percent of Americans said current or former elected officials get special breaks, including similar shares of Democrats and Republicans. Jurors were even more likely than nonjurors to think officials get special treatment.The only group that the public at large was more likely to think got special treatment was wealthy people.Mr. Trump’s upcoming trials will pull jurors from the places where the cases were filed, and, depending on the location, the makeup of the jury pool could prove challenging for the former president. In the case in Georgia, potential jurors would come from left-leaning Fulton County. The federal case over the events of Jan. 6, 2021, will be held in Washington, a liberal city where the day is still remembered viscerally, and the hush money case involving Stormy Daniels will be held in Manhattan, also known for being highly Democratic in makeup. The classified documents case, however, is likely to take place in Fort Pierce, Fla., and the jury will likely be pulled from the surrounding counties, all of which Mr. Trump won in 2020.Prosecutors and defense attorneys will surely be very careful in jury selection. In the cases, prosecutors will need a unanimous verdict to succeed; for Mr. Trump to secure a mistrial, he needs just one holdout.Mr. Adler points out that political views are not disqualifying. “The law doesn’t say you have to know nothing about the case,” he said. “The law says that you have to be able to be fair and impartial.”Americans were split regarding their own interest in serving on any of the Trump juries. A little over 50 percent said they were not personally interested in serving, with little difference along partisan lines.Prior jury service did not increase Americans’ expectations that Trump could get a fair jury, but former jurors were more open to jumping into the ring themselves: Just over half said they would be interested in serving on a jury for one of his trials. More

    • 100 Shares189 Views

      in Elections

      When the Law Is Not a Trump Card

      by

      The multiplying indictments of Donald Trump, I argued a couple of weeks ago, are putting an end to all attempts to simply practice normal politics in 2024. For both his Republican primary opponents and eventually President Biden, the ongoing efforts to put a former president in prison will shape and warp and shadow every effort to make more prosaic political arguments against a Trump restoration.But there is a corollary to this point, brought home by the conjunction of this week’s Georgia indictment and an argument from two conservative legal scholars that the 14th Amendment’s third article, aimed at excluding Confederates who had betrayed oaths to the Union from political office, should apply to Trump after the events of Jan 6. If the legal challenges against Trump have the power to shape the democratic politics of 2024, the shaping power also works the other way. As extraordinary judicial proceedings alter democratic politics, the legal arena is inevitably politicized as well, undermining its claim to standing some distance outside and above democratic realities.This isn’t a judgment on the legal merits of any of the Trump indictments. It doesn’t matter how scrupulous the prosecutor, how fair-minded the judge; to try a man, four times over, whom a sizable minority of Americans believe should be the next president, is an inherently political act. And it is an especially political act when the crimes themselves are intimately connected to the political process, as they are in the two most recent indictments.The prosecutions seek to demonstrate that not even a president is above the law. But if Trump is indeed the Republican nominee, the proceedings against him will potentially end by subjecting the judicial to the political, the law to raw politics, because millions of Americans can effectively veto the findings of the juries by simply putting Trump in the White House once again. And even if they do not make that choice (I think they probably won’t), even if the polls currently overestimate Trump’s strength (I think they probably do), the entire election will still be an object lesson in the supremacy of the political, because everyone will see that the court rulings aren’t actually final, that political combat is stronger than mere law.You can see all that and still support Trump’s prosecutions as a calculated but necessary risk — in the hopes that having him lose twice, in the courts and at the ballot box, will re-establish a political taboo against his kind of postelection behavior and on the theory that this outcome is worth the risk that the whole strategy will fail completely if he wins.If you see things that way, good; you see clearly, you are acting reasonably. My concern is that not enough people do clearly see what’s risked in these kinds of proceedings, that many of Trump’s opponents still regard some form of legal action as a trump card — that with the right mix of statutory interpretation and moral righteousness, you can simply bend political reality to your will.Certainly that’s my feeling reading the argument that the 14th Amendment already disqualifies Trump from the presidency and that indeed no further legal proceedings — no trial for rebellion or treason, no finding of guilt — are necessary for state officials to simply exclude him from their ballots.The authors of this notable argument, William Baude and Michael Stokes Paulsen, are serious conservative legal scholars of the originalist persuasion, and their claims are couched in close attention to the text of the amendment and its history. Since I am not a legal scholar, the fact that I do not find these arguments remotely plausible can be partially discounted, so I would direct you first to two different critiques: one from a conservative scholar and friend of the authors, Stanford’s Michael McConnell, and one from a critic of originalism, Georgia State’s Eric Segall.McConnell suggests that to avoid giving the 14th Amendment’s provisions a dangerously anti-democratic breadth, such that all manner of normal democratic dissent and rabble-rousing could be deemed disqualifying, we should assume that they refer to a large-scale insurrection, military rebellion or explicit civil war. Applying them to a political protest-turned-riot, even a riot that disrupted the transfer of presidential power, risks a serious abuse of power — “depriving voters of the ability to elect candidates of their choice” — without adequate limitations on its use.Meanwhile, Segall questions the authors’ claim that the amendment’s provisions are “self-executing,” that they can be applied to Trump or any other supposed insurrectionist immediately. He points out that this interpretation was already rejected in 1869 by Salmon Chase, then the chief justice of the United States, one year after the amendment’s ratification in the only ruling we have on this question. This is acknowledged by Baude and Paulsen, to be sure, who argue at length that Chase was wrong. But they are still in the dubious position of claiming that theirs is the true “original” reading of the amendment, seeking some way to deal with the problem of Donald Trump a century and a half later, rather than the reading offered at the time of ratification that has stood unchallenged since.Then here is the point that I, a non-scholar, want to make (though I should note that Segall makes it as well): Even if Baude and Paulsen were deemed correct on some pure empyrean level of constitutional debate, and Salmon Chase or anyone else deemed completely wrong, their correctness would be unavailing in reality, and their prescription as a political matter would be so disastrous and toxic and self-defeating that no responsible jurist or official should consider it.The idea that the best way to deal with a demagogic populist whose entire appeal is already based on disillusionment with the established order is for state officials — in practice, state officials of the opposing political party — to begin unilaterally excluding him from their ballots on the basis of their own private judgment of crimes that he has not been successfully prosecuted for … I’m sorry, the mind reels. It should not happen, it would not work if it did happen, John Roberts and four more justices would not uphold it, and it would license political chaos to no good purpose whatsoever. And if the legal theorist’s response is that this isn’t the “best” way to deal with Trump, it’s just the way that the Constitution requires, then so much the worse for their theory of the Constitution.There is an irony here, which is that a similar kind of legal mentality influenced Trump’s campaign to overturn the results of the 2020 election. John Eastman’s argument that Mike Pence could interpose himself between the official results of the election and Joe Biden’s inauguration was a much more fanciful constitutional argument than the one that Baude and Paulsen make. But it was similar in imagining a particular interpretation of the Constitution as something that can just be deemed correct and then imposed by a particular actor — the vice president in the Eastman case, state election officials in theirs — without regard to anything that would naturally follow in the realm of the political.What would have probably followed from the Pence maneuver, as his own lawyer advised him, would have been either a swift smackdown from the courts or the vice president standing alone against both houses of the legislative branch. (This seems like one reason Eastman’s crackbrained proposal was not a rebellion under 14th Amendment definitions; if Confederate secession could have been defeated through a quick appeal to the Supreme Court, it would not have been much of a rebellion either.)But imagine, if you will, a world where Eastman had uncovered, days before Jan. 6, some piece of historical evidence that raised his theory’s status from “desperate Trumpist motivated reasoning” to “an idea that merits some academic debate.” Suppose even that a few liberal legal scholars had been forced to concede a little ground to his position. Would this in any way have changed the total political folly of the Pence maneuver, the impossibility of levering a presidential outcome from the vice president’s supervisory position, the purposeless destabilization that such a gambit would entail?I say that it would not, that where legal theory touches politics in this way it must necessarily deal with political considerations, that appeals to law and legal text alone are not enough to settle matters if political realities are against you. That is the cold knowledge that all of us watching Trump’s extraordinary indictments converge with his extraordinary campaign need to carry into 2024.BreviaryNic Rowan on Bill WattersonJustin E.H. Smith sings a ballad of Generation XJohn Duggan on Sally Rooney and CatholicismAlex Tabarrok on the acts of Saint ThomasNotes for a Susannah Black Roberts essay on the post-Christian right More