Courts and the Judiciary

Subterms

    More stories

    • 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

    • 125 Shares189 Views

      in Elections

      Special Counsel Used Warrant to Get Trump’s Twitter Direct Messages

      by

      The nature of the messages or who exactly wrote them remained unclear, but it was a revelation that such messages were associated with the former president’s account.The federal prosecutors who charged former President Donald J. Trump this month with conspiring to overturn the 2020 election got access this winter to a trove of so-called direct messages that Mr. Trump sent others privately through his Twitter account, according to court papers unsealed on Tuesday.While it remained unclear what sorts of information the messages contained and who exactly may have written them, it was a revelation that there were private messages associated with the Twitter account of Mr. Trump, who has famously been cautious about using written forms of communications in his dealings with aides and allies.The court papers disclosing that prosecutors in the office of the special counsel, Jack Smith, obtained direct messages from Mr. Trump’s Twitter account emerged from a fight with Twitter over the legality of executing a warrant on the former president’s social media. Days after the attack on the Capitol on Jan. 6, 2021, the platform shut down his account.The papers included transcripts of hearings in Federal District Court in Washington in February during which Judge Beryl A. Howell asserted that Mr. Smith’s office had sought Mr. Trump’s direct messages — or DMs — from Twitter as part of a search warrant it executed on the account in January.In one of the transcripts, a lawyer for Twitter, answering questions from Judge Howell, confirmed that the company had turned over to the special counsel’s office “all direct messages, the DMs” from Mr. Trump’s Twitter account, including those sent, received and “stored in draft form.”The lawyer for Twitter told Judge Howell that the company had found both “deleted” and “nondeleted” direct messages associated with Mr. Trump’s account.The warrant was first revealed last week when a federal appeals court in Washington released court papers about Twitter’s attempt to challenge certain aspects of the warrant.The court papers unsealed on Tuesday revealed that Mr. Smith’s prosecutors sought “all content, records and other information” related to Mr. Trump’s Twitter account from October 2020 to January 2021, including all tweets “created, drafted, favorited/liked or retweeted” by the account and all direct messages sent from, received by or stored in draft form by the account.The warrant, which was signed by a federal judge in Washington in January after Elon Musk took over Twitter, now called X, is the first known example of prosecutors directly searching Mr. Trump’s communications and adds a new dimension to the scope of the special counsel’s efforts to investigate the former president.Mr. Trump’s Twitter account was often managed by Dan Scavino, a longtime adviser going back to his days in his private business, and it was unclear if any direct messages were from when he was using the account.CNN earlier reported the revelation that Mr. Trump’s direct messages were sought by the search warrant.A spokesman for Mr. Trump, asked for comment, referred to a post the former president made on his social media website, Truth Social, on Monday, in which he called Mr. Smith a “lowlife” and accused him breaking into his Twitter account. “What could he possibly find out that is not already known,” Mr. Trump wrote.The election charges filed against Mr. Trump accuse him of three overlapping conspiracies: to defraud the United States, to disrupt the certification of the election at a proceeding at the Capitol on Jan. 6 and to deprive people of the right to have their votes counted.Mr. Trump’s relentless use of Twitter is detailed several times in the indictment.The indictment notes, for instance, how Mr. Trump used Twitter on Dec. 19, 2020, to summon his followers to Washington on Jan. 6 for what he described as a “wild” protest. The message ultimately served as a lightning rod for both far-right extremists and ordinary Trump supporters who descended on the city that day, answering Mr. Trump’s call.The indictment also describes how Mr. Trump used Twitter in the run-up to Jan. 6 to instill in his followers “the false expectation” that Vice President Mike Pence had the authority to use his role in overseeing the certification proceeding at the Capitol “to reverse the election outcome” in Mr. Trump’s favor.On Jan. 6, Mr. Trump continued posting messages on Twitter that kept up this drumbeat of “knowingly false statements aimed at pressuring the vice president,” the indictment said. Ultimately, when Mr. Pence declined to give in, Mr. Trump posted yet another tweet blaming the vice president for not having “the courage to do what should have been done to protect our country and our Constitution.”One minute after the tweet was posted, the indictment said, Secret Service agents were forced to evacuate Mr. Pence to a secure location. And throughout that afternoon, it added, rioters roamed the Capitol and its grounds, shouting chants like “Traitor Pence” and “Hang Mike Pence.”When the special counsel’s office obtained the warrant for Mr. Trump’s Twitter account, prosecutors also got permission from a judge to force Twitter not to inform the former president that they were scrutinizing his communications.If Mr. Trump had learned about the warrant, the court papers unsealed on Tuesday said, it “would result in destruction of or tampering with evidence, intimidation of potential witnesses or serious jeopardy to this investigation.”Twitter challenged this so-called nondisclosure order, arguing that prosecutors had violated the company’s First Amendment rights by seeking to keep officials from communicating with Mr. Trump, one of its customers.The company also asked to delay complying with the warrant until the issues surrounding the provision were resolved. Otherwise, it claimed, Mr. Trump would not have a chance to assert executive privilege in a bid to “shield communications made using his Twitter account.”Ultimately, Twitter not only lost the fight but also was found to be in contempt of court for delaying complying with the warrant. Judge Howell fined the company $350,000. More

    • 125 Shares99 Views

      in Elections

      Why Jack Smith Had to Bring This Indictment Against Trump

      by

      Donald Trump has now been indicted three times, accused of crimes occurring before, during and after his presidency. The latest indictment alleges facts from all quarters to prove his criminality: from the vice president to the White House counsel and the heads of the Justice Department, the Department of Homeland Security and the Office of National Intelligence, as well as many others. All are Republican loyalists.But the indictment does more: It skillfully avoids breathing air into a Trump claim of selective prosecution. To not have brought this case against Mr. Trump would have been an act of selective nonprosecution. The Justice Department has already charged and obtained convictions for myriad foot soldiers related to the attack on the Capitol on Jan. 6, 2021, including charging well over 300 people for obstructing the congressional proceedings. In this indictment, the special counsel Jack Smith wisely brings that same charge, but now against the alleged leader of the effort to thwart the transfer of power.That charge of obstruction and conspiracy to defraud the United States in the administration of elections are entirely fitting for the conduct alleged in the indictment. In a civil case last year, the Federal District Court judge David Carter held that Mr. Trump and John Eastman likely engaged in a criminal conspiracy under both those statutes in their schemes to organize false electors and pressure the vice president. Mr. Smith has now said he can prove the same conduct beyond a reasonable doubt.Although the Jan. 6 select committee referred Mr. Trump for investigation for inciting an insurrection, Mr. Smith wisely demurred. The Justice Department has not charged that offense in any other case involving the attack on the Capitol, and insurrection has not been charged since the 19th century. Of course, no president has engaged in it since then — but since no one else has been charged with that crime relating to Jan. 6, it likely would have been an issue. And since the penalty for the insurrection offense is that the defendant would not be eligible to hold federal office, it would have fueled a claim of weaponizing the Justice Department to defeat a political rival.Mr. Trump and others like him will of course continue to assert that the Justice Department has been politically weaponized. That claim has it exactly backward.To not charge Mr. Trump for trying to criminally interfere with the transfer of power to a duly elected president would be to politicize the matter. It would mean external political considerations had infected the Justice Department’s decision-making and steered the institution away from its commitment to holding everyone equally accountable under the law.What those circling their wagons around Mr. Trump are in effect asking for is a two-tiered system, in which the people who were stirred by lies to interrupt the congressional certification are held to account but not the chief instigator. That injustice has not been lost on judges overseeing cases related to Jan. 6. In the 2021 sentencing of John Lolos — a 48-year-old man with no criminal record who traveled from Seattle to hear Mr. Trump’s speech at the Ellipse before being convinced to “storm” the Capitol — Judge Amit Mehta commented on the incongruity in the D.C. courtroom.“People like Mr. Lolos were told lies, fed falsehoods, and told that our election was stolen when it clearly was not,” the judge said. He went on to add that those “who created the conditions that led to Mr. Lolos’s conduct” and the events of Jan. 6 have “in no meaningful sense” been held “to account for their actions and their words.”We are now on the doorstep of the sort of accountability that Judge Mehta found lacking.That is what also makes this indictment of the former president different. Where both the Manhattan hush money case and classified documents case have been, in some part, mired in discussions of whataboutism, the 2020 election interference indictment is where whataboutism goes to die.In this case, the Trump stratagem is unmasked. Given the record of robust prosecutions of Jan. 6 foot soldiers and Mr. Trump’s responsibility for their actions, he has had to resort to saying the Capitol attack was good, and he and his enablers have lauded convicted felons as heroes and “political prisoners.” Mr. Trump’s continued statements in favor of the Jan. 6 defendants can and likely will be used against him in any trial.As the narrative of the indictment lays out, Mr. Trump’s schemes — to sell the big lie and promote election fraud even when he privately conceded to advisers the claims were “unsupported” and “crazy” — are what contributed to the attack of Jan. 6. And it is a relief that the indictment includes Mr. Trump’s role and responsibility in that violence. Many Americans would not understand the Justice Department focusing only on bureaucratic and procedural efforts to affect the congressional certification.As Senator Mitch McConnell said at the close of Mr. Trump’s second impeachment trial, “There is no question — none — that President Trump is practically and morally responsible for provoking the events of the day.”He added: “We have a criminal justice system in this country. We have civil litigation. And former presidents are not immune from being accountable by either one.”What is also clear from the indictment is that Mr. Trump will most likely not be the last white-collar defendant charged for the set of crimes it sets out. Mr. Smith clearly, and properly, considers that the six co-conspirators — parts of the indictment describe actions by co-conspirators that correspond with those taken by, for example, Mr. Eastman and Rudy Giuliani — committed federal offenses that threatened the core of our democracy. The rule of law cannot tolerate those actors facing charges with the main protagonist going scot free.The main task ahead for Mr. Smith is getting his cases to trial before the general election. But the true test ahead will not be for Mr. Smith. It will be for us: Will Americans care about the rule of law enough to vote for it? The courtroom is a place where facts and law still matter, but the criminal cases against Mr. Trump will test whether the same can be said for the ballot box.Ryan Goodman, a law professor at the New York University School of Law, is a co-editor in chief of Just Security. Andrew Weissmann, a senior prosecutor in Robert Mueller’s special counsel investigation, is a professor at N.Y.U. School of Law and a host of the podcast Prosecuting Donald Trump.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

    • 75 Shares159 Views

      in Elections

      Justices Ignoring the ‘Scent of Impropriety’

      by

      More from our inbox:The Costs of the Trump InquiryGiuliani’s False AccusationsReform the College Admissions SystemBiden’s Dog Needs a New HomeA Brit’s Struggles, After Brexit Hannah RobinsonTo the Editor:Re “What Smells Off at the Court?,” by Michael Ponsor (Opinion guest essay, July 16):Judge Ponsor’s bewilderment at the loss of olfaction on the Supreme Court is spot on. As he explained, it isn’t that hard for a judge to catch even a faint whiff of the scent of impropriety.And you don’t have to be a federal judge to smell it. Every federal employee knows that aroma. When I was a Justice Department lawyer, a group of federal and state lawyers spent months negotiating in a conference room at the defendant’s law firm. The firm regularly ordered in catered lunches and invited the government attorneys to partake. None of us ever accepted a bite.Another time, a company hoping to build a development on a Superfund site hosted a presentation for federal and municipal officials. The company’s spokesperson presented each city official with a goodie bag filled with stuff like baseball caps bearing the project’s name. To me and my colleagues, the spokesperson said: “We didn’t bring any for you. We knew you wouldn’t take them.” They were right.The sense of smell is more highly evolved in the depths of the administrative state than in the rarefied air at the pinnacle of the judicial branch.Steve GoldCaldwell, N.J.The writer now teaches at Rutgers Law School.To the Editor:Judge Michael Ponsor alludes to the Code of Conduct for United States Judges as the guide he has followed his entire career. However, he implies that the code is faulty by stating the Supreme Court needs a “skillfully drafted code” to avoid political pressure on justices. He does not elaborate on what shortcomings the existing code has that make it inapplicable to the Supreme Court.The existing code is very skillfully drafted. It emphasizes that the foundation of the judicial system is based on public trust in the impartiality of judges. The code is very clear that the “appearance of impropriety” is as important as its absence.This is at the core of the scandals of current sitting justices. The actions and favors received most certainly have the appearance of impropriety. Those appearances of impropriety are undermining confidence and trust in the Supreme Court. No amount of rationalization and argle-bargle by the justices can change that.R.J. GodinBerkeley, Calif.To the Editor:When I served as a United States district judge, it did not take an acute sense of smell for me to determine what action was ethically appropriate. I had a simple test that was easy to apply: Do I want to read about this in The New York Times? I think the current members of the Supreme Court are beginning to realize the value of this simple test.John S. MartinFort Myers, Fla.The writer served as a district judge for the Southern District of New York from 1990 to 2003.The Costs of the Trump InquiryThe scope of Jack Smith’s investigation of former President Donald J. Trump greatly exceeds that of the special counsel investigating President Biden’s handling of classified documents after he left the vice presidency.Kenny Holston/The New York TimesTo the Editor:Re “Cost of Scrutinizing Trump Continues to Grow” (front page, July 24):We should weigh the cost of investigating and prosecuting allegations of major crimes committed by Donald Trump against the cost of doing nothing.Imagine a world in which the United States descends into an authoritarian regime — with our rulers selected by violent mobs rather than in elections. The costs to our rights as citizens and our system of free enterprise would be incalculably larger in such a world than what Jack Smith is currently spending to hold Mr. Trump accountable for his actions.Eric W. OrtsPhiladelphiaThe writer is a professor of legal studies and business ethics at the Wharton School of the University of Pennsylvania and a visiting professor of law at Columbia University.Giuliani’s False Accusations Nicole Craine for The New York TimesTo the Editor:Re “Poll Workers Get Retraction From Giuliani” (front page, July 27):If there was such widespread fraud in the 2020 presidential election, why did Rudy Giuliani resort to falsely accusing the two Atlanta election workers? Didn’t he have many true examples of fraud to choose from?Tom FritschlerPort Angeles, Wash.Reform the College Admissions SystemThe Harvard University campus last month. The Biden administration’s inquiry comes at a moment of heightened scrutiny of college admissions practices.Kayana Szymczak for The New York TimesTo the Editor:Re “Legacy Admission at Harvard Faces Federal Inquiry” (front page, July 26):While I applaud the focus on legacy admissions, it is clear that the entire process needs an overhaul. Every day now it feels as if a new study is released that confirms what we had long suspected: that elite colleges favor the wealthy and the connected. Does anyone believe that removing legacy admissions alone will change this?As it stands, elite schools care too much about wealth and prestige to fundamentally alter practices that tie them to wealthy and connected people. If the Education Department is serious about reform, it will broaden its inquiry to examine the entire system.However one feels about the Supreme Court decision on affirmative action, at the very least it has forced us to reconsider the status quo. I pray that policymakers take this opportunity instead of leaving the bones of the old system in place.Alex ChinSan FranciscoThe writer is a graduate of the Harvard Graduate School of Education and is pursuing a Ph.D. at Teachers College, Columbia University.Biden’s Dog Needs a New HomeA White House staff member walking Commander, one of the Biden family’s dogs, on the North Lawn of the White House earlier this year.Tom Brenner for The New York TimesTo the Editor:Re “Emails Report List of Attacks by Biden’s Dog” (news article, July 26):I support Joe Biden’s presidency and think he is generally a thoughtful, kind man. But I am appalled to learn that Secret Service agents — or any employees at the White House — have to regularly contend with the risk of being bitten by the president’s German shepherd.No one deserves to face not just the physical harm and pain of dog bites but also the constant fear of proximity to such an aggressive pet. Keeping the dog, Commander, at the White House shows poor judgment.This situation hardly reflects the Bidens’ respect and caring for those sworn to serve them. It’s time for Commander to find a new home better suited to his needs.Cheryl AlisonWorcester, Mass.A Brit’s Struggles, After Brexit Andy Rain/EPA, via ShutterstockTo the Editor:Re “The Disaster No One Wants to Talk About,” by Michelle Goldberg (column, July 23):I am a Brit, a fact I have been ashamed of since the Brexit vote in 2016, if not before.I voted to stay in the European Union. I was shocked at the result, and I was more shocked at the ignorance of others who voted.Our lives absolutely have changed since Brexit, but not for the better. My family is poorer, and we can no longer afford a holiday or many of the luxuries we previously could. As the economy suffers, with the rise in interest rates our mortgage is set to reach unspeakable sums. Package that with a near doubling in the cost of our weekly groceries, and we have big decisions that need to be made as a family.And still, despite this utter chaos, the widespread use of food banks, the regular striking of underpaid and underappreciated key workers, despite all of this, there are still enough people to shout loud in support of Brexit and the Conservative Party.We are a nation in blind denial. We are crashing. And yes, we are being pushed to breaking up into pieces not seen for centuries.As a family we miss the E.U., we mourn the E.U., and we grieve for the quality of life we once had but may never see again.Nevine MannRedruth, England More

    • 113 Shares99 Views

      in Elections

      Trump’s Trial Dates Collide With His 2024 Campaign Calendar

      by

      The Republican front-runner is facing a growing tangle of criminal and civil trials that will overlap with next year’s presidential primaries.As former President Donald J. Trump campaigns for the White House while multiple criminal prosecutions against him play out, at least one thing is clear: Under the laws of physics, he cannot be in two places at once.Generally, criminal defendants must be present in the courtroom during their trials. Not only will that force Mr. Trump to step away from the campaign trail, possibly for weeks at a time, but the judges overseeing his trials must also jostle for position in sequencing dates. The collision course is raising extraordinary — and unprecedented — questions about the logistical, legal and political challenges of various trials unfolding against the backdrop of a presidential campaign.“The courts will have to decide how to balance the public interest in having expeditious trials against Trump’s interest and the public interest in his being able to campaign so that the democratic process works,” said Bruce Green, a Fordham University professor and former prosecutor. “That’s a type of complexity that courts have never had to deal with before.”More broadly, the complications make plain another reality: Mr. Trump’s troubles are entangling the campaign with the courts to a degree the nation has never experienced before and raising tensions around the ideal of keeping the justice system separate from politics.Mr. Trump and his allies have signaled that they intend to try to turn his overlapping legal woes into a referendum on the criminal justice system, by seeking to cast it as a politically weaponized tool of Democrats.Already, Mr. Trump is facing a state trial on civil fraud accusations in New York in October. Another trial on whether he defamed the writer E. Jean Carroll is set to open on Jan. 15 — the same day as the Iowa caucuses. On Jan. 29, a trial begins in yet another lawsuit, this one accusing Mr. Trump, his company and three of his children of using the family name to entice vulnerable people to invest in sham business opportunities.Because those cases are civil, Mr. Trump could choose not to attend the trials, just as he shunned an earlier lawsuit by Ms. Carroll, in which a jury found him liable for sexual abuse.But he will not have that option in a criminal case on charges in New York that he falsified business records as part of covering up a sex scandal shortly before the 2016 election. The opening date for that trial, which will most likely last several weeks, is in late March, about three weeks after Super Tuesday, when over a dozen states vote on March 5.Jack Smith, the special counsel leading two federal investigations into Mr. Trump, has asked the judge overseeing the indictment in the criminal inquiry into Mr. Trump’s hoarding of sensitive documents to set a trial date for late 2023.But on Tuesday — the same day Mr. Trump disclosed that federal prosecutors may charge him in the investigation into the events that culminated in the Capitol riot — his defense lawyers argued to Judge Aileen M. Cannon that she ought to put off any trial in the documents case until after the 2024 election. The intense publicity of the campaign calendar, they said, would impair his rights.Mr. Trump has long pursued a strategy of delay in legal matters, seeking to run out the clock. If he can push his federal trial — or trials, if he is ultimately indicted in the Jan. 6 inquiry — beyond the 2024 election, it is possible that he or another Republican would win the presidency and order the Justice Department to drop the cases.A president lacks the authority to quash state cases, but even if Mr. Trump were to be convicted, any inevitable appeals would most likely still be pending by Inauguration Day in 2025. If he is back in office by then, the Justice Department could also raise constitutional challenges to try to defer any additional legal proceedings, like a prison sentence, while he is the sitting president.In making the case for delaying the trial until after the election, Mr. Trump’s defense lawyers contended on Tuesday that Mr. Trump was effectively squaring off in court against his 2024 rival, President Biden.“We don’t know what’s going to happen in the primaries, of course, but right now, he’s the leading candidate,” said Todd Blanche, one of Mr. Trump’s lawyers. “And if all things go as we expect, the person he is running against — his administration is prosecuting him.”But David Harbach, a prosector on Mr. Smith’s team, said Mr. Trump was “no different from any other busy important person who has been indicted.” He called the claim of political influence “flat-out false,” seemingly more intended for “the court of public opinion” than a court of law.“The attorney general appointed the special counsel to remove this investigation from political influence, and there has been none — none,” he said.Judge Cannon, who has not yet made a decision about the eventual trial date, indicated that in considering delay, she believed the focus should be not on the campaign but on legal issues, like the volume and complexity of classified evidence.Setting a trial date for the documents case is the first and most basic logistical issue. But the possibility of indictments from two inquiries into Mr. Trump’s attempts to stay in power after the 2020 election, the federal investigation led by Mr. Smith and a state investigation overseen by Fani T. Willis, a district attorney in Georgia who has signaled that charges could come in August, may soon bump up against that.There is no overriding authority that acts as an air traffic controller when multiple judges are deciding dates that could conflict. Nor are there rules that give federal or state cases precedence or that say that any case that was charged first should go to trial first.Brandon L. Van Grack, a former prosecutor who worked on the Russia investigation led by the special counsel Robert S. Mueller III, pointed to that inquiry as an example. Prosecutors brought charges against Mr. Trump’s former campaign chairman, Paul Manafort, in two jurisdictions, first in the District of Columbia and then in the Eastern District of Virginia, but the trials took place in reverse order.“There was sensitivity to hearing dates, and it was incumbent on counsel to educate both judges on the scheduling and conflicts, but there wasn’t a rule that said the District of Columbia matter was charged first and therefore went to trial first,” he said. “It’s judicial discretion.”As an informal practice, Mr. Green said that judges overseeing potentially conflicting matters sometimes call each other and work out a calendar. No procedural rule authorizes such conversations, he said, but it is considered appropriate.Looming over Mr. Trump’s legal peril is an unwritten Justice Department norm known as the 60-day rule. As a primary or general election nears, prosecutors should not take overt actions that could improperly influence voting.It is not clear, however, how that principle applies to matters that are already public and so less likely to alter a candidate’s image. Notably, Raymond Hulser, a veteran prosecutor who has been consulted for years about how to apply the 60-day rule, is a member of Mr. Smith’s team.Further complicating matters, Mr. Trump has hired some of the same defense lawyers to handle multiple investigations against him, leaving them stretched for time.Christopher Kise, another lawyer for Mr. Trump, cited the former president’s crowded legal calendar at the hearing on Tuesday. Not only did Mr. Kise indicate that he would need to prepare for the fraud-related trials in October and January, but he also pointed to Mr. Blanche’s role in the criminal trial in March involving falsified business records in New York.“So these are the same lawyers dealing with the same client trying to prepare for the same sort of exercises, and so I think that’s highly relevant,” Mr. Kise said.Several legal experts said that while people have a Sixth Amendment right to choose their legal representation, it is not absolute. They noted that judges could tell defendants that, if their chosen lawyers are too busy to take on additional matters in a timely manner, they must hire others.Such an order would give Mr. Trump something more to complain about to an appeals court, said Professor Green, who added, “I think it’s probably a losing argument.”Alan Feuer More

    • 113 Shares139 Views

      in Elections

      Trump’s Judges: More Religious Ties and More N.R.A. Memberships

      by

      A new study also found that judges appointed by the former president were more likely to vote for claims of religious freedom — unless they came from Muslims.When Donald J. Trump was running for president in 2016, he vowed to appoint Supreme Court justices who would vote to overturn Roe v. Wade. Three justices and six years later, he made good on that promise.Mr. Trump also made a more general pledge during that campaign, about religion. At a Republican debate, a moderator asked whether he would “commit to voters tonight that religious liberty will be an absolute litmus test for anyone you appoint, not just to the Supreme Court, but to all courts.”Mr. Trump said he would, and a new study has found that he largely delivered on that assurance, too. Mr. Trump’s appointees to the lower federal courts, the study found, voted in favor of claims of religious liberty more often than not only Democratic appointees and but also judges named by other Republican presidents.There was an exception: Muslim plaintiffs fared worse before Trump appointees than before other judges.“There seems to be a very big difference on how these cases come out, depending on the specific religion in question,” said Stephen J. Choi, a law professor at New York University, who conducted the study with Mitu Gulati of the University of Virginia and Eric A. Posner of the University of Chicago.Another part of the study explored what was distinctive about Mr. Trump’s appointees to the lower courts, considering 807 judges named by seven presidents as of late 2020.The study found, for instance, that judges named by Mr. Trump had “stronger or more numerous religious affiliations” with churches and other houses of worship, with religious schools, and with groups like Alliance Defending Freedom and First Liberty, which have won a series of major Supreme Court cases for conservative Christians.Trump appointees were also much more likely to be members of the Federalist Society, the conservative legal group, than other Republican appointees: 56 percent versus 22 percent.For appeals court nominations in the Trump administration, the study found that membership in the group was “virtually required,” with a rate of more than 88 percent, compared with 44 percent for other Republican appointees.Mr. Trump made another pledge at another 2016 debate about the judges he would appoint. “They’ll respect the Second Amendment and what it stands for, what it represents,” he said.The new study did not try to measure how Mr. Trump’s appointees voted in gun rights cases. But it did find that more than 9 percent of Trump appointees were members of the National Rifle Association, compared with less than 2 percent of other Republican appointees and less than 1 percent of Democratic appointees.“In light of the polarizing nature of gun rights and the N.R.A.’s association with extreme views on gun ownership,” the study’s authors wrote, “jurists who seek a reputation for impartiality would normally want to avoid membership in the N.R.A.”The study did document how Mr. Trump’s appointees voted in cases on claims of religious liberty, examining some 1,600 votes in more than 500 cases in the federal appeals courts from 2000 to 2022.Trump appointees voted in favor of plaintiffs claiming that their right to free exercise of religion had been violated about 45 percent of the time, compared with 36 percent for other Republican appointees and 33 percent of Democratic appointees. The gap grew for cases that involved only Christians, to more than 56 percent, compared with 42 percent for other Republican appointees and 29 percent for Democratic ones.And the numbers flipped when it came to Muslims, with Trump appointees at 19 percent, compared with 34 percent for other Republican appointees and 48 percent for Democratic ones.“The pattern that emerges,” the study said, “is consistent with conventional wisdom: Democrats tend to protect minority religions, and Republicans tend to protect Christianity (and possibly Judaism).”The study considered a common critique of Trump appointees: that they are less qualified than other judges. It found that the evidence did not support the charge, at least on average and at least as measured by the prestige of the law schools the judges attended, whether they had served as law clerks and ratings from the American Bar Association.“We find little evidence that Trump judges break the historical pattern of judicial appointments,” the study’s authors wrote. “Women and minorities are less well represented among Trump judges than among Democratic judges, but that reflects a historical partisan difference; Trump judges do not differ much from Republican judges in this respect.”“A few more Trump judges received top A.B.A. ratings, but not quite as many Trump judges attended top-10 law schools,” the study said. “Our view is that the data do not support the view that Trump’s judges were less qualified than judges appointed by other presidents.”But the study’s main finding, on religion, was that Mr. Trump was true to his word.“Trump is not known to be personally religious,” the study’s authors wrote, “but he appears to have believed that he could obtain votes by promising to appoint religious judges, and he kept his promise.” More

    • 100 Shares99 Views

      in Elections

      Trump Lawyers Seek Indefinite Postponement of Documents Trial

      by

      The former president’s legal team argued in a court filing that no trial date should be set until all “substantive motions” in the case were resolved, setting up an early key decision by Judge Aileen M. Cannon.Lawyers for former President Donald J. Trump asked a federal judge on Monday night to indefinitely postpone his trial on charges of illegally retaining classified documents after he left office, saying that the proceeding should not begin until all “substantive motions” in the case had been presented and decided.The written filing — submitted 30 minutes before its deadline of midnight on Tuesday — presents a significant early test for Judge Aileen M. Cannon, the Trump-appointed jurist who is overseeing the case. If granted, it could have the effect of pushing Mr. Trump’s trial into the final stages of the presidential campaign in which he is now the Republican front-runner or even past the 2024 election.While timing is important in any criminal matter, it could be hugely consequential in Mr. Trump’s case, in which he stands accused of illegally holding on to 31 classified documents after leaving the White House and obstructing the government’s repeated efforts to reclaim them.There could be complications of a sort never before presented to a court if Mr. Trump is a candidate in the last legs of a presidential campaign and a federal criminal defendant on trial at the same time. If the trial is pushed back until after the election and Mr. Trump wins, he could try to pardon himself after taking office or have his attorney general dismiss the matter entirely.Some of the former president’s advisers have been blunt in private conversations that he is looking to winning the election as a solution to his legal problems. And the request for an open-ended delay to the trial of Mr. Trump and his co-defendant, Walt Nauta, a personal aide, presents a high-stakes question for Judge Cannon, who came into the case already under scrutiny for making decisions favorable to the former president in the early phases of the investigation.The filing came in response to one submitted last month by prosecutors working for the special counsel, Jack Smith, who requested a trial date of Dec. 11. Judge Cannon, appearing to adopt the brisk calendar mandated by the Speedy Trial Act, had initially scheduled the case to go to trial in August.Judges have wide latitude to set schedules for trials, and scheduling orders are typically not subject to appeal to higher courts. That said, given the extraordinary nature of Mr. Trump’s case and the potential implications of a delay, prosecutors under Mr. Smith could in theory try to come up with a rationale to challenge a scheduling decision made by Judge Cannon to the U.S. Court of Appeals for the 11th Circuit.Mr. Trump’s lawyers pitched their request to Judge Cannon as a plea for cautious deliberation and as a means of safeguarding democracy.“This extraordinary case presents a serious challenge to both the fact and perception of our American democracy,” wrote the lawyers, Chris M. Kise and Todd Blanche for Mr. Trump, and Stanley Woodward Jr. and Sasha Dadan for Mr. Nauta.“The court now presides over a prosecution advanced by the administration of a sitting president against his chief political rival, himself a leading candidate for the presidency of the United States,” they wrote. “Therefore, a measured consideration and timeline that allows for a careful and complete review of the procedures that led to this indictment and the unprecedented legal issues presented herein best serves the interests of the defendants and the public.”The lawyers also took note of the unusual intertwining of law and politics in the case, suggesting that Mr. Trump’s status as a presidential candidate should be factored into the timing of the trial.“President Trump is running for president of the United States and is currently the likely Republican Party nominee,” they wrote. “This undertaking requires a tremendous amount of time and energy, and that effort will continue until the election on Nov. 5, 2024.”“Mr. Nauta’s job requires him to accompany President Trump during most campaign trips around the country,” they continued. “This schedule makes trial preparation with both of the defendants challenging. Such preparation requires significant planning and time.”Walt Nauta, Mr. Trump’s co-defendant and personal aide, leaving the federal courthouse in Miami on Thursday.Alon Skuy/Getty ImagesAnd they suggested that there was no rationale for an expedited trial.“While the government appears to favor an expedited (and therefore cursory) approach to this case, it cannot point to any exigency or urgency requiring a rapid adjudication,” they wrote. “There is no ongoing threat to national security interests nor any concern regarding continued criminal activity.”On Monday, hours before Mr. Trump’s lawyers requested a delay of the trial, a lawyer for Mr. Nauta asked Judge Cannon to postpone a hearing to discuss the issue of the classified materials in the case that was scheduled for Friday. The defense and the prosecution ultimately agreed to delay the hearing, which will take place in Federal District Court in Fort Pierce, Fla., until next Tuesday.Judge Cannon agreed to that schedule change in a brief order issued on Tuesday morning.In making their case to delay the trial, Mr. Trump’s lawyers cited the expansive discovery evidence provided to them by the government.The first discovery disclosure, they said, contained more than 833,450 pages of material, including about 122,650 emails and 305,670 other documents. The lawyers said that after subsequent troves of evidence were handed over, they would most likely make more requests to the government for further information.They also pointed to the complex process of deciding how to handle the sensitive materials at the heart of the case under the Classified Information Procedures Act — the subject of the hearing that had been scheduled for Friday. The lawyers strongly hinted that they were going to fight the government during the pretrial litigation over classified material, a process that could take up significant amounts of time.The filing by Mr. Trump’s legal team presents Judge Aileen M. Cannon, a Trump appointee, with a key early test.Southern District of Florida“In general, the defendants believe there should simply be no ‘secret’ evidence, nor any facts concealed from public view relative to the prosecution of a leading presidential candidate by his political opponent,” the lawyers wrote. “Our democracy demands no less than full transparency.”Aside from its request for a delay, the filing served as a preview of Mr. Trump’s legal strategy as the lawyers laid out ways in which they planned to attack his indictment.They suggested, for example, that they intended to challenge some of the charges he is facing by arguing that the Presidential Records Act permitted Mr. Trump to take documents with him from the White House. That interpretation of the Watergate-era law is at odds with how legal experts interpret it and was not successful during an extended legal battle last year over an outside arbiter who was put in place to review a trove of materials seized by the F.B.I. from Mar-a-Lago, Mr. Trump’s private club and residence in Florida.The former president’s lawyers also suggested that they might raise “constitutional and statutory challenges” to Mr. Smith’s authority as special counsel. Moreover, they laid the groundwork for questioning whether an impartial jury could be seated at the trial while Mr. Trump was running for office.“There is simply no question any trial of this action during the pendency of a presidential election will impact both the outcome of that election,” they wrote, “and, importantly, the ability of the defendants to obtain a fair trial.” More

    • 175 Shares109 Views

      in Elections

      L. Lin Wood, Lawyer Who Tried to Overturn Trump’s 2020 Loss, Gives Up License

      by

      Mr. Wood wrote that the Georgia State Bar had “agreed to drop the disciplinary cases” against him if he retired from the profession.L. Lin Wood, one of the key lawyers who sought to overturn former President Donald J. Trump’s 2020 election loss and faced potential disciplinary action in Georgia as a result, opted to give up his law license in the state.Mr. Wood officially requested that the State Bar of Georgia transfer his attorney status to “retired” on July 4, according to a letter he posted on the messaging platform Telegram. The request was approved, and two pending disciplinary charges against him were dropped, according to a letter from Georgia’s Office of the General Counsel that Mr. Wood also posted to Telegram.Mr. Wood, a former libel lawyer who became an ardent supporter of Mr. Trump, has faced his own series of legal troubles since he joined Mr. Trump’s crusade to use the court system to overturn the 2020 results, echoing falsehoods that there was widespread voter fraud.The Georgia State Bar wrote in documents filed with the state’s Supreme Court that Mr. Wood’s retirement had “achieved the goals of disciplinary action, including protecting the public and the integrity of the judicial system and the legal profession.”Mr. Wood wrote on Telegram that the bar had “agreed to drop the disciplinary cases” if he retired from the profession. In an interview with The Times, he said that he had wanted to retire sooner, but that legal proceedings from cases filed around the 2020 election prevented him from doing so.“I wish I had been able to do it two years ago,” he said. “I was tired of practicing law. I’d had enough.”The letters Mr. Wood posted on Telegram specified that his request was “unqualified, irrevocable and permanent” and that Mr. Wood could not practice law in any state. He is, however, allowed to represent himself in future cases so long as he does not present himself as a lawyer.Mr. Wood had been a licensed attorney in Georgia since 1977. His status is now listed as “retired” on the State Bar website, with no public discipline on record.Mr. Wood brought a federal lawsuit seeking to halt Georgia’s certification of the election in November 2020, which was blocked by a federal judge that year. His name subsequently appeared in lawsuits challenging election results in various other states.The State Bar opened an investigation into Mr. Wood for disciplinary action in 2021 and held a disciplinary trial earlier this year. Mr. Wood sued the association after it sought to obtain a mental health exam as part of its investigation, but he lost in a federal appeals court.He was one of several attorneys who faced $175,000 in sanctions and a recommendation for possible suspension or disbarment in Michigan for filing a lawsuit that a judge determined in 2021 “threatened to undermine the results of a legitimately conducted national election.”Mr. Wood claimed that he was not involved in that lawsuit but that another lawyer had added his name to documents filed in that case and several others.Last year, Mr. Wood was asked to testify in the Fulton County district attorney’s investigation into Mr. Trump’s attempts to overturn the 2020 election results in Georgia. There have been signals that charges related to that inquiry could be issued in August. More