Immunity from Prosecution

Subterms

    More stories

    • 100 Shares169 Views

      in Elections

      Will Trump Face a Legal Reckoning in Georgia?

      by

      Over 2,300 text messages to and from Mark Meadows, a former chief of staff for Donald J. Trump, offer stunning real-time details of the efforts to overturn the 2020 presidential election. Not least among the revelations are Mr. Meadows’s repeated overtures to the Georgia secretary of state, Brad Raffensperger, with Mr. Meadows pressing the Georgian to be in communication with the White House.Mr. Trump and Mr. Raffensperger eventually spoke, resulting in Mr. Trump’s now-infamous demand that the secretary “find 11,780 votes” — just one more vote than Joe Biden’s margin of victory in the state.On May 2 we see the latest consequence of those efforts: the opening of a special grand jury by District Attorney Fani Willis in Fulton County, Ga., to gather evidence relating to possible criminal charges against Mr. Trump and others associated with him. As important as congressional investigations are, Ms. Willis’s work may present the most serious prospect of prosecution that Mr. Trump and his enablers are facing.We understand that after Robert Mueller’s investigation and two impeachments, the prospect of Mr. Trump actually facing accountability may be viewed with skepticism. Most recently, he seems to have avoided charges by the Manhattan district attorney, Alvin Bragg.But Ms. Willis, a Democrat, has a demonstrated record of courage and of conviction. She has taken on — and convicted — a politically powerful group, Atlanta’s teachers, as the lead prosecutor in the city’s teacher cheating scandal.And she is playing with a strong hand in this investigation. The evidentiary record of Mr. Trump’s postelection efforts in Georgia is compelling. It is highlighted by a recording of Mr. Trump’s Jan. 2, 2021, call with Mr. Raffensperger, in which Mr. Trump exhorted Mr. Raffensperger to “find” those votes.The tape also contains threats against the secretary and his staff that had an element of coercion, like Mr. Trump’s warning that failing to identify (nonexistent) fraud would be “a big risk” to Mr. Raffensperger and to his lawyer. The recording is backed by voluminous evidence that Mr. Trump likely knew full well he had lost, including acknowledgment from administration officials like his attorney general, William P. Barr, and an internal Trump campaign memo admitting that many fraud claims were unfounded. As a federal judge noted in finding that Mr. Trump’s efforts to overturn the election were likely criminal, the former president “likely knew the justification was baseless and therefore that the entire plan was unlawful.”What’s more, Georgia criminal law is some of the most favorable in the country for getting at Mr. Trump’s alleged misconduct. For example, there is a Georgia law on the books expressly forbidding just what Mr. Trump apparently did in Ms. Willis’s jurisdiction: solicitation of election fraud. Under this statute, a person commits criminal solicitation of election fraud when he or she intentionally “solicits, requests, commands, importunes or otherwise attempts to cause” another person to engage in election fraud.The decision to impanel a special grand jury is itself another indicator of the peril Mr. Trump may face. Under Georgia practice, special purpose grand juries are typically used for focused investigation of a matter and have the power to subpoena witnesses. Special grand juries develop expertise in a single case over a sustained period (here up to 12 months), as opposed to regular grand juries, which hear many matters over a shorter period. Unlike regular grand juries, the special grand jury cannot issue an indictment, but any charging recommendations are presented by a district attorney to a regular grand jury, which can then indict based on the special grand jury’s work.The special grand jury will begin issuing subpoenas for some of the 30 or so witnesses who have refused requests for voluntary interviews. Those initial witnesses will then be served and will start appearing in June. Mr. Trump and those closest to him have a history of rushing to court to fight subpoenas, but they are unlikely to be given the opportunity in this first wave. Careful prosecutors usually start with less controversial witnesses, and Ms. Willis is a careful prosecutor. If Mr. Trump or those closest to him are served, that is when subpoenas are most likely to be challenged in court — but that is probably months away.If Mr. Trump is charged, it will set off a legal battle. There are substantial legal defenses that Mr. Trump could attempt. He could argue that he has constitutional immunity from prosecution for his acts while president, that his words were protected by the First Amendment or even that he acted in absolute good faith because he genuinely believed that he had won.The judicial system will ultimately decide if these defenses will work. But soliciting election fraud is not within the scope of official presidential duties protected by immunity, the First Amendment does not protect criminal activity, and a president cannot successfully claim good faith when he was repeatedly told by his own officials that there was no fraud. Still, no one should consider the case a slam-dunk.The case also in no way diminishes the importance of the House of Representatives’ Jan. 6 committee. In fact, the committee will most likely aid the Georgia prosecution while going about the business of its own investigation. (Ms. Willis and the committee have reportedly already been in contact.) For example, litigation with Mr. Meadows disclosed key details of the alleged plot to overturn the Georgia election. An email the committee filed from one of the lawyers helping Mr. Trump, Cleta Mitchell, included a detailed 11-point memo about overturning the election. Operating outside Washington, Ms. Willis might have taken years to obtain that email and other evidence like it.Jury trials, which both of us have tried and supervised, are living events, and success is never assured. But in Georgia, if it reaches that stage, the evidence is strong, the law is favorable, the prosecutor is proven, and the cause — democracy itself — is just.Norman Eisen, a senior fellow at Brookings and the executive chair at the States United Democracy Center, was special counsel to the House Judiciary Committee during the first Trump impeachment and is the author of “Overcoming Trumpery.” Donald Ayer, a former U.S. attorney in the Reagan administration and deputy attorney general in the George H.W. Bush administration, is an adjunct professor at Georgetown Law and on the advisory board of States United.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

    • 150 Shares189 Views

      in Elections

      U.S. Declines to Defend Trump Ally in Lawsuit Over Jan. 6 Riot

      by

      The move could mean that the Justice Department is also unlikely to defend former President Donald J. Trump in the case.WASHINGTON — The Justice Department declined on Tuesday to defend a congressional ally of former President Donald J. Trump in a lawsuit accusing them both of inciting supporters at a rally in the hours before the Jan. 6 storming of the Capitol.Law enforcement officials determined that Representative Mo Brooks, Republican of Alabama, was acting outside the scope of his duties in an incendiary speech just before the attack, according to a court filing. Mr. Brooks had asked the department to certify that he was acting as a government employee during the rally; had it agreed to defend him, he would have been dismissed from the lawsuit and the United States substituted as a defendant.“The record indicates that Brooks’s appearance at the Jan. 6 rally was campaign activity, and it is no part of the business of the United States to pick sides among candidates in federal elections,” the Justice Department wrote.“Members of Congress are subject to a host of restrictions that carefully distinguish between their official functions, on the one hand, and campaign functions, on the other.”The Justice Department’s decision shows it is likely to also decline to provide legal protection for Mr. Trump in the lawsuit. Legal experts have closely watched the case because the Biden Justice Department has continued to fight for granting immunity to Mr. Trump in a 2019 defamation lawsuit where he denied allegations that he raped the writer E. Jean Carroll and said she accused him to get attention.Such a substitution provides broad protections for government officials and is generally reserved for government employees sued over actions that stem from their work. In the Carroll case, the department cited other defamation lawsuits as precedent.The Brooks decision also ran counter to the Justice Department’s longstanding broad view of actions taken in the scope of a federal employee’s employment, which has served to make it harder to use the courts to hold government employees accountable for wrongdoing.Mr. Brooks did not immediately respond to a request for comment.Lawyers for the House also said on Tuesday that they declined to defend Mr. Brooks in the lawsuit. Given that it “does not challenge any institutional action of the House,” a House lawyer wrote in a court filing, “it is not appropriate for it to participate in the litigation.”The Justice Department and House filed their briefs on Tuesday, the deadline set by Judge Amit P. Mehta of the Federal District Court for the District of Columbia. The lawsuit, filed in March by Representative Eric Swalwell, Democrat of California, accuses Mr. Brooks of inciting a riot and conspiring to prevent a person from holding office or performing official duties.Mr. Swalwell accused Mr. Brooks, Mr. Trump, his son Donald Trump Jr. and his onetime personal lawyer Rudolph W. Giuliani of playing a key role in inciting the Jan 6. attack during a rally near the White House in the hours before the storming of the Capitol.Citing excerpts from their speeches, Mr. Swalwell accused the men of violating federal law by conspiring to prevent an elected official from holding office or from performing official duties, arguing that their speeches led Mr. Trump’s supporters to believe they were acting on orders to attack the Capitol.Mr. Swalwell alleged that their speeches encouraged Mr. Trump’s supporters to unlawfully force members of Congress from their chambers and destroy parts of the Capitol to keep lawmakers from performing their duties.During the rally, Mr. Brooks told attendees that the United States was “at risk unlike it has been in decades, and perhaps centuries.” He said that their ancestors “sacrificed their blood, their sweat, their tears, their fortunes and sometimes their lives” for the country.“Are you willing to do the same?” he asked the crowd. “Are you willing to do what it takes to fight for America?”Mr. Swalwell said defendants in his lawsuit had incited the mob and had continued to stoke false beliefs that the election was stolen.“As a direct and foreseeable consequence of the defendants’ false and incendiary allegations of fraud and theft, and in direct response to the defendants’ express calls for violence at the rally, a violent mob attacked the U.S. Capitol,” Mr. Swalwell said in his complaint. “Many participants in the attack have since revealed that they were acting on what they believed to be former President Trump’s orders in service of their country.”In June, Mr. Brooks asked that the Justice Department defend him in the case. He cited the Westfall Act, which essentially substitutes the Justice Department as the defendant when federal employees are sued for actions deemed within the scope of their employment, according to a court document.He described his speech on Jan. 6 as part of his job, saying that his duties include delivering speeches, making pronouncements on policy and persuading lawmakers.The Justice Department rejected that assertion.“Inciting or conspiring to foment a violent attack on the United States Congress is not within the scope of employment of a representative — or any federal employee — and thus is not the sort of conduct for which the United States is properly substituted as a defendant under the Westfall Act,” the department wrote. “Brooks does not argue otherwise. Instead, he denies the complaint’s allegations that he conspired to incite the attack on the Capitol.”Mr. Trump has not sought to have the government substitute for him as a defendant in the lawsuit under the Westfall Act. But he has argued in court filings that the statements he made on Jan. 6 are covered by broad immunity, that he could not be sued for making them and that the lawsuit violated his free speech rights.Should a judge deny Mr. Trump’s claims, he could ask the Justice Department to intervene on his behalf. But its decision in Mr. Brooks’s case lowered the chances that it would comply. More

    • 88 Shares129 Views

      in Elections

      E.U. Parliament Strips Carles Puigdemont of Immunity

      by

      AdvertisementContinue reading the main storySupported byContinue reading the main storyCatalan Separatist Leader Loses Immunity, Clearing Way for Spain’s Extradition BidCarles Puigdemont has been charged with sedition for leading a 2017 independence bid. His European Parliament membership had shielded him from prosecution.A television showing Carles Puigdemont at the European Parliament in Brussels on Tuesday.Credit…Francisco Seco/Associated PressRaphael Minder and March 9, 2021Updated 8:33 a.m. ETMADRID — The European Parliament has stripped the immunity of Carles Puigdemont, the former separatist leader of Catalonia, clearing the way for Spain to make a fresh attempt to extradite him from Belgium and try him on sedition charges.The European Parliament said on Tuesday that a majority of its members had voted a day earlier in a secret ballot to remove the immunity of Mr. Puigdemont and two other Catalan members of the assembly who face charges in Spain related to a botched attempt to declare Catalonia’s independence in 2017. Spain’s judiciary has charged that their bid was unconstitutional.The vote on Monday ended a lengthy battle by Mr. Puigdemont and his colleagues to use their protection as elected members of the European assembly to shield them from prosecution in Spain. Now it is up to the Belgian judiciary to rule on whether Mr. Puigdemont should be sent back to the Spanish capital, Madrid, to stand trial.“It is a sad day for the European Parliament,” Mr. Puigdemont said. “We have lost our immunity, but the European Parliament has lost more than that and as a result, European democracy too,” he said, adding that this was “a clear case of political prosecution.”The Spanish government welcomed the vote.“The problems of Catalonia will not be solved in Europe or by Europe. They have to be solved in Spain by bringing all Catalan forces around the table,” said the foreign minister, Arancha González Laya. The vote showed that the European Parliament had “respect for the work of the judiciary in our country,” she added.The European Parliament’s decision comes only weeks after regional elections in Catalonia that increased the majority of pro-independence parties in the regional Parliament. Separatist politicians have held control since 2015, but the secessionist conflict has split Catalan society while also remaining a highly contentious issue in national politics.A polling station in Barcelona last month. Regional elections increased the majority of pro-independence parties in the Catalonian Parliament.Credit…Emilio Morenatti/Associated PressMr. Puigdemont and some of his colleagues have been in Brussels since October 2017, shortly after the Spanish central government ousted his regional government for holding a referendum that Spanish courts had ruled illegal and then declaring Catalonia’s independence.During the past three years, Mr. Puigdemont has successfully fought off attempts to extradite him both from Belgium and Germany, where he was briefly detained during a trip.In January, judges in Belgium also rejected a request to extradite another former member of Catalonia’s regional government, Lluis Puig, who is facing similar charges in Spain. The Belgian court argued that the Spanish Supreme Court did not have the legal authority to issue an arrest warrant against Mr. Puig, adding that he should be tried in a regional court.Part of Mr. Puigdemont’s former government, however, stayed in Spain and stood trial before the country’s Supreme Court. Nine Catalans received prison sentences after they were convicted of crimes including sedition and misuse of public funds.One former Catalan leader, Oriol Junqueras, was also barred by Spain’s highest court from taking his seat in the European Parliament. Both he and Mr. Puigdemont were elected to the assembly in 2019.The European Parliament’s vote will allow a Spanish judge to reactivate a European arrest warrant against Mr. Puigdemont that was suspended in early 2020, when Mr. Puigdemont and his colleagues took their seats in the European assembly.The Catalan leaders are not the first members of the European Parliament to be stripped of immunity.In 2019, the European Parliament stripped the immunity of Jean-Marie Le Pen, the founder of the far-right National Front party in France. It is still reviewing the case of Ioannis Lagos, who was sentenced in Greece last year for his activities with the far-right Golden Dawn party. The Greek government considers Golden Dawn a criminal organization.The Catalan case has divided politicians in Brussels, many of them loathe to set a precedent of lawmakers being tried over political activity. The removal of Mr. Puigdemont’s immunity was approved by three-fifths of the members of the European Parliament.It could take months for Belgian courts to rule on Spain’s latest attempt to extradite Mr. Puigdemont and the two other Catalan leaders, Antoni Comín and Clara Ponsatí.The Brussels Public Prosecutor’s Office is examining the possibility of renewing legal proceedings in Belgium, a spokeswoman for the office said.Should the Belgian courts block the extradition request, the Catalans would continue to sit in the European Parliament, but without special immunity rights.AdvertisementContinue reading the main story More

    • 113 Shares99 Views

      in Elections

      Israeli Government Collapses, Forcing 4th Election in 2 Years

      by

      AdvertisementContinue reading the main storySupported byContinue reading the main storyIsraeli Government Collapses, Forcing 4th Election in 2 YearsA protracted political crisis revolving around Prime Minister Benjamin Netanyahu’s legal troubles brings down the coalition government.Prime Minister Benjamin Netanyahu said, “I’m not afraid of elections. We’re ready for them. We’ll win.”Credit…Pool photo by Ronen ZvulunDec. 22, 2020Updated 5:09 p.m. ETJERUSALEM — Israel’s government collapsed Tuesday, pushing the country into yet another early election — the fourth in two years.The Israeli Parliament dissolved itself at midnight on Tuesday. The move forced a new election after weeks of infighting and paralysis in the so-called unity government, an uneasy coalition sworn in just seven months ago that paired Prime Minister Benjamin Netanyahu’s conservative Likud party with his main rival-turned-partner, Benny Gantz of the centrist Blue and White party.Mr. Netanyahu and Mr. Gantz blamed each other for the crisis.“I think at the current time, we should have united forces to find a way to avert these needless elections,” Mr. Netanyahu said in Parliament early Tuesday as he tried, and failed, to seek a delay in its dissolution.A new election must take place in three months and is scheduled for March 23. But an election date in the late spring or summer, once the coronavirus vaccination campaign is well underway, might have been more advantageous for Mr. Netanyahu.Parliament automatically dispersed at midnight after failing to meet the legal deadline for approving a budget for 2020. Mr. Netanyahu, whose party holds the finance portfolio, had refused to present a budget, in violation of his coalition agreement with Mr. Gantz — the ostensible reason for the government breakdown.But at the heart of the crisis lies a deep, mutual distrust between the two men and a country fundamentally split over the fate of Mr. Netanyahu, whose corruption trial is scheduled to move into an intensive, evidentiary stage in early 2021, requiring his regular presence in court. He has been charged with bribery, fraud and breach of trust. He denies any wrongdoing.Benny Gantz, left, and Mr. Netanyahu have blamed each other for the crisis that has brought their government to the point of collapse.Credit…Pool photo by Tal ShaharAnalysts said that Mr. Netanyahu was gambling on another election in the hope of forming a right-wing, religious government that would grant him some kind of immunity from prosecution.“It’s not the budget, stupid,” said Reuven Hazan, a professor of political science at the Hebrew University of Jerusalem. Mr. Netanyahu “needs a government that will pass legislation either to delay his case for the foreseeable future or cancel it altogether,” he added.But failing to present a budget and forcing the dispersal of Parliament provides him with an escape hatch from the coalition agreement stipulating that Mr. Gantz should take over as prime minister 11 months from now. From the inception of the unity government, few people, including Mr. Gantz, expected Mr. Netanyahu to honor that agreement.Mr. Gantz’s party, for its part, refused to back any compromise with Mr. Netanyahu over the authority for making key appointments, including for the posts of attorney general and state attorney. A compromise would have violated Blue and White’s flagship policy of upholding the rule of law but would have kept the government on life support.Mr. Netanyahu, Israel’s longest-serving prime minister, who is renowned for his political savvy, quickly pivoted into campaign mode.“The majority of the citizens of Israel see our leadership and our tremendous achievements,” he said in a televised address on Tuesday evening. “We are bringing in millions of vaccinations, delivering historic peace agreements, curbing the Iranian threat and turning Israel into one of the world’s leading economies.”Mr. Gantz said his party had entered Mr. Netanyahu’s government, despite paying a high political price, “to serve the best interests of the country, given the needs and scale of the moment.”“Unfortunately,” he added, “we found no partner on the other end.”A demonstrator was detained in Jerusalem this month during a protest against Mr. Netanyahu and his handling of the coronavirus crisis.Credit…Amir Cohen/ReutersThe current government will remain in place in a caretaker capacity until after the election and the formation of a new government, a process that could take many months.Both Mr. Netanyahu and Mr. Gantz are taking a considerable political risk by going back to the polls.The unity government was formed as a last resort after three inconclusive elections ended without any one candidate being able to muster a parliamentary majority. While Mr. Netanyahu and his Likud party were far ahead in the polls a few weeks ago, a new conservative challenger, Gideon Saar, has shaken things up.Mr. Saar, who lost to Mr. Netanyahu in a Likud leadership race a year ago, recently defected from the party and set up a rival one called New Hope. Drawing support from disenchanted voters from both the right and the political center, Mr. Saar’s move has muddied any clear path back to power for Mr. Netanyahu, according to recent opinion polls, meaning that Israel’s political morass may persist even beyond a new election.Mr. Gantz’s Blue and White party had already lost the bulk of its popular support after it broke its campaign promise and entered into government with a prime minister under indictment. Critics say that Mr. Gantz, a former army chief, is a weak and indecisive party leader and that his two-year political career is all but over.“I think he needs to get up and go,” Professor Hazan, the political science expert, said.Damning him further, Mr. Netanyahu said that he had actually reached a compromise with Mr. Gantz on Monday on the issue of appointments and authorities, but that rebels within the Blue and White party, including the justice minister, Avi Nissenkorn, had blocked Mr. Gantz from making the deal.Miki Zohar, a Likud official, said Blue and White was committing “political suicide.”AdvertisementContinue reading the main story More