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      Trump asks supreme court to intervene in Mar-a-Lago special master dispute

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      Trump asks supreme court to intervene in Mar-a-Lago special master disputeAppellate court ruling prevented special master also examining 100 files seized from Mar-a-Lago with classification markings Donald Trump on Tuesday asked the US supreme court to partially reverse an appellate court decision that prevented the special master, reviewing for privilege protections materials seized by the FBI from his Mar-a-Lago resort in August, also examining 100 documents with classification markings.US supreme court hears case that could gut voting rights for minority groupsRead moreThe motion to vacate the ruling by the US appeals court for the 11th circuit represents the former president’s final chance to temporarily bar federal prosecutors from using the materials in their inquiry into whether he illegally retained national defense information.In the emergency request, lawyers for Trump argued that the appellate court lacked jurisdiction to intervene in the lower district court decision that appointed a special master to review all seized documents – including those marked classified – for privilege protections.The technical motion argued among other things that because the appointment of a special master was a procedural order and not an injunction, the decision by the trial judge in Florida was supposedly not subject to “interlocutory review” by the appellate court at that time.“That appointment order is simply not appealable on an interlocutory basis,” the filing said. “Nevertheless, the 11th circuit granted a stay of the special master order, effectively compromising the integrity of the well-established policy against piecemeal appellate review.”In the petition submitted to the supreme court justice Clarence Thomas, who receives 11th circuit appeals, Trump asked that the special master be allowed to review 100 documents marked classified in addition to 11,000 other documents about to be subject to the independent filter process.The former president does not appear to be seeking to stop the DoJ using the 100 documents in its criminal investigation, since Trump’s argument hinges on the Presidential Records Act, which does not account for whether documents are classified or declassified.The former president will face significant challenges even if the supreme court hears the case, and even though the bench is dominated by six conservative justices – three of whom he appointed – who have previously shown deference to executive-branch powers.The argument appears flawed, legal experts said, since it would suggest that higher courts would have no ability to review an order from any federal judge to stop criminal and national security investigations.Lawyers for Trump also contended that the seized materials could be marked classified for national security purposes and simultaneously be personal documents – a position the DoJ has previously said is impossible, with which the 11th circuit indicated it agreed.The Trump motion was silent on whether Trump actually declassified any of the documents, as he has claimed publicly. It instead suggested the supreme court consider the case on the basis that he had the power to do so, and might have done so, without providing evidence.TopicsDonald TrumpUS supreme courtUS politicsLaw (US)newsReuse this content More

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      US supreme court hears case that could gut voting rights for minority groups

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      US supreme court hears case that could gut voting rights for minority groupsIn Merrill v Milligan, the court will decide whether Alabama’s new congressional map violates the Voting Rights Act The supreme court’s conservative majority appeared unsettled on Tuesday on whether it would gut one of the most powerful remaining provisions of the Voting Rights Act in a case that has profound implications for the representation of Black Americans and other minority groups.The case, Merrill v Milligan, centers on how much those who draw electoral districts should be required to consider race. It involves a dispute over the seven congressional districts Alabama drew last year. Only one of those districts has a majority-Black population, even though Black people make up a quarter of Alabama’s population. Earlier this year, a three-judge panel unanimously ruled that the configuration was illegal under section 2 of the Voting Rights Act, which guarantees minority groups equal opportunity to participate in the electoral process. It ordered Alabama to draw a second district with a minority population. The supreme court stepped in earlier this year and halted that order while the case proceeded.A court caught Republicans discriminating against Black voters – here’s howRead moreThe state’s solicitor general, Edmund LaCour, argued on Tuesday that the lower court’s ruling was incorrect because it required Alabama to consider race above traditional, race-neutral criteria. In order to require Alabama draw a second majority-minority district, he said, the plaintiffs should have first had to prove that such a map could exist without taking race into account at all. He argued that computer simulations programmed with race-neutral criteria never produced a map with a second majority-Black district.Justice Samuel Alito, one of the court’s most conservative jurists, seized on that point repeatedly in support of Alabama’s argument. “How can it be reasonably configured if you can’t get that map with a computer simulation that takes into account all of the traditional race-neutral factors?” he said.But even Alito acknowledged that some of the arguments Alabama made were “far-reaching”. Justice Amy Coney Barrett, another conservative justice, said at one point she would be “struggling in the same way others have about narrowing down exactly what your argument is”.Justices Elena Kagan, Sonia Sotomayor and Ketanji Brown Jackson all seemed deeply skeptical about all of Alabama’s arguments. Embracing the state’s approach would upend how the court has long approached section 2 redistricting cases. Kagan said the case was a “slam dunk” case under the court’s existing precedent before laying out how she believed the lower court had correctly evaluated the facts. “It seems to me you’re coming here … and saying change the way we look at section 2 and its application,” she said.The supreme court has long allowed for the use of race and required those who challenge maps to meet a difficult three-part test to challenge the map. The first part of that test requires plaintiffs to show that the minority population is sufficiently large and compact enough to comprise a majority in a reasonably configured single-member district.Democracy, poisoned: America’s elections are being attacked at every levelRead moreAlabama’s congressional map easily meets the conditions needed to bring a section 2 challenge, experts have said. There is clear evidence Black and white voters prefer different candidates and mapmakers were easily able to draw a second majority-Black congressional district that comported with the traditional criteria Alabama uses.“There is nothing race-neutral about Alabama’s map,” Deuel Ross, a lawyer who represented some of the plaintiffs, told the justices. “Section 2 is not an intent test or about putting on racial blinders.”Requiring plaintiffs to draw that map without considering race at all would have profound consequences for Black representation across the US. It would make it much harder for plaintiffs to bring challenges to maps, essentially requiring them to show that discrimination is occurring without looking at race.“Alabama isn’t asking the court to apply section 2 as it’s been applied for the last 40 years,” said Elizabeth Prelogar, the United States solicitor general, which backed the plaintiffs in the case. “Instead, Alabama is asking the court to radically change the law by inserting this concept of race neutrality and effectively limiting section 2 to intentional discrimination.”A ruling in favor of Alabama could also produce a “broad upheaval” in the law and clear a pathway for Alabama and other states to get rid of existing majority-minority districts. “Make no mistake, every majority-minority district would become a litigation target,” said Abha Khanna, a lawyer for one of the groups of plaintiffs.The case marks the latest occasion in which the court has considered the Voting Rights Act, a crowning achievement of the civil rights era. In 2013, the court gutted a provision in the law that required states and other jurisdictions with a history of discrimination to get federal approval before enacting changes. In 2020, the justices made it harder to use section 2 to bring challenges to voting laws outside of redistricting.Kagan acknowledged that history of chipping away at the law on Tuesday. After calling the Voting Rights Act “one of the great achievements of American democracy”, she said: “In recent years, this statute has fared not well in this court.”“You’re asking us, essentially, to cut back substantially on our 40 years of precedent and to make this too extremely difficult to prevail on. So what’s left?” she said in a comment that appeared to be directed more at her colleagues on the bench than any of the lawyers.US supreme court to decide cases with ‘monumental’ impact on democracyRead moreSome of the most pointed and extensive questioning on Tuesday came from Jackson, the newest member of the court, who was participating in just her second day of oral arguments. She directly challenged LaCour’s argument that the prohibition against racial discrimination in the constitution’s 14th amendment does not allow mapmakers to consider race in redistricting.But Jackson questioned how that could be the case when history shows that the 14th amendment was adopted as part of a race-conscious effort to guarantee equal rights for Black Americans in the 19th century. “I don’t think that the historical record establishes that the founders believed race neutrality or race blindness was required,” she said, in what seemed to be an appeal to conservative originalists on the court. “It was drafted to give a foundational, a constitutional foundation for a piece of legislation that was designed to make people who had less opportunity and less rights equal to white citizens.“I’m trying to understand why that violates the 14th amendment given the history and background of the 14th amendment.”TopicsAlabamaThe fight for democracyUS politicsUS supreme courtLaw (US)US voting rightsnewsReuse this content More

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      Oath Keepers founder accused of ‘armed rebellion’ on January 6 at trial

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      Oath Keepers founder accused of ‘armed rebellion’ on January 6 at trialStewart Rhodes and four associates face the rare civil war-era charge of seditious conspiracy for attacking the US Capitol The founder of the Oath Keepers extremist group and four associates planned an “armed rebellion” to keep Donald Trump in power after he lost the election, a federal prosecutor contended on Monday as the most serious case yet went to trial involving the attack on the US Capitol on 6 January 2021.Stewart Rhodes and his band of far-right militants were prepared to go to war to stop Joe Biden from becoming president, assistant US attorney Jeffrey Nestler told jurors.The group celebrated the Capitol attack as a battle they had won and continued their plot even after Biden’s November 2020 electoral victory was certified by Congress in the early hours of 7 January, Nestler alleged.Capitol attack officer Fanone hits out at ‘weasel’ McCarthy in startling interviewRead more“Their goal was to stop, by whatever means necessary, the lawful transfer of presidential power, including by taking up arms against the United States government,” the prosecutor said during his opening statement. “They concocted a plan for armed rebellion to shatter a bedrock of American democracy.”Rhodes and the four others are the first January 6 defendants to stand trial on the charge of seditious conspiracy, a rare civil war-era charge that calls for up to 20 years behind bars, which they deny. The stakes are high for the US Department of Justice (DoJ), which last secured a seditious conspiracy conviction at trial nearly 30 years ago.Rhodes’ attorney painted a far different picture, describing the Oath Keepers as a “peacekeeping” force. He accused prosecutors of building their case on cherry-picked evidence from messages and videos and told jurors that the “true picture” would show that the Oath Keepers had merely been preparing for presidential orders they expected from Trump but never came.“Stewart Rhodes meant no harm to the Capitol that day. Stewart Rhodes did not have any violent intent that day,” Rhodes’ attorney, Phillip Linder, said. “The story the government is trying to tell you today is completely wrong.”On trial with Rhodes, of Granbury, Texas, are Kelly Meggs, leader of the Florida chapter of the Oath Keepers, Kenneth Harrelson, another Florida member of the group, Thomas Caldwell, a retired US navy intelligence officer from Virginia, and Jessica Watkins, who led an Ohio militia group. They face several other charges as well.About 900 people have been charged and hundreds convicted in the Capitol attack. Rioters stormed police barriers, fought with officers, smashed windows and temporarily halted the certification of Biden’s electoral victory.Prosecutors told jurors the insurrection was no spontaneous outpouring of election-fueled rage but part of a detailed, drawn-out plot to stop Biden from entering the White House.Rhodes began plotting to overturn Biden’s victory right after the election, Nestler said.He told his followers during the planning stage that “it will be torches and pitchforks time if they (Congress) don’t do the right thing”, according to an encrypted Signal message he sent to his followers that was shown to the jury by prosecutors.During a December media interview, Rhodes called senators “traitors” and warned that the Oath Keepers would have to “overthrow, abort or abolish Congress”.Before coming to Washington, they set up “quick reaction force” teams with “weapons of war” stashed at a Virginia hotel, the prosecutor said.As Oath Keepers stormed the Capitol, Rhodes stayed outside, like “a general surveying his troops on a battlefield”, Nestler said. After the attack, the Oath Keepers were “elated”, Nestler said.“These defendants were fighting a war and they won a battle on January 6 … but they planned to continue waging that war to stop the transfer of power prior to Inauguration Day. Thankfully their plans were foiled,” Nestler said.Defense attorneys say the Oath Keepers came to Washington only to provide security at events for figures such as Trump ally Roger Stone before the president’s big outdoor rally behind the White House. Rhodes has said there was no plan to attack the Capitol and that the members who did acted on their own.Rhodes’ lawyer told jurors that his client will take the stand to argue that he believed Trump was going to invoke the Insurrection Act and call up a militia. TopicsUS Capitol attackDonald TrumpJoe BidenUS politicsLaw (US)newsReuse this content More

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      US supreme court rejects MyPillow chief’s bid to dodge $1.3bn lawsuit

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      US supreme court rejects MyPillow chief’s bid to dodge $1.3bn lawsuitDominion Voting Systems accuses Mike Lindell, a prominent Trump supporter, of promoting baseless voter fraud claims The defamation lawsuit that voting machine company Dominion is pursuing against the MyPillow chief executive, Mike Lindell, can proceed after the US supreme court rejected the prominent Donald Trump supporter’s appeal aiming to block the case.Dominion Voting Systems in February 2021 filed a $1.3bn lawsuit accusing Lindell of promoting the debunked conspiracy theory that the company’s machines manipulated vote counts in favor of Joe Biden in the 2020 presidential election that ousted Trump from the Oval Office.Ex-US army medic allegedly lured migrants on to flights to Martha’s VineyardRead moreLindell had been appealing an August 2021 ruling by federal court judge Carl Nichols, who refused to dismiss the lawsuit at the MyPillow leader’s request. An appellate court in Washington DC later decided the case was not ready for review. And in its first day back from its summer break, the US supreme court decided it would not take up Lindell’s appeal for consideration, clearing the way for the lawsuit against Lindell to progress.Nichols wrote in the ruling that Dominion “has adequately alleged that Lindell made his claims knowing that they were false or with reckless disregard for the truth” and therefore had grounds to file a defamation lawsuit.Dominion also alleges that Lindell participated in a defamatory marketing campaign against the company in efforts to sell more pillows by telling audiences to purchase MyPillow products after making his claims of election fraud and providing promotional codes related to those theories.Dominion and Smartmatic, which has also sued Lindell, have demanded damages from several Trump allies and rightwing news networks that spread conspiracy theories about the companies’ vote tallying machines being compromised to Biden’s benefit.In September, Lindell said that FBI investigators seized his cellphone in connection with an alleged election security breach in Colorado.Lindell said he was in the drive-through lane of a Hardee’s fast-food restaurant when agents surrounded him and took his phone.TopicsUS politicsUS supreme courtDonald TrumpUS elections 2020Law (US)newsReuse this content More

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      The January 6 committee has its sights on Ginni Thomas. She should be worried | Kimberly Wehle

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      The January 6 committee has its sights on Ginni Thomas. She should be worriedKimberly WehleThe spouse of a sitting supreme court justice allegedly tried to overturn the 2020 election. It’s hard to say which looks worse – the conflicts of interest, or the possibility that she aided a would-be insurrection After months of wrangling, Virginia “Ginni” Thomas, the wife of US supreme court justice Clarence Thomas, has agreed to sit for an interview with the January 6 committee – thus avoiding a subpoena, at least for now.This development could open a vital inquiry into Thomas’s alleged role in seeking to thwart a peaceful transition of presidential power to Joe Biden. Just as importantly, this news renews attention on the question of whether Ginni Thomas’s radical rightwing activism influenced her husband, who weighed in on numerous 2020 election-related cases despite his conflicts of interest.Time for Clarence Thomas to recuse himself from election cases – his wife’s texts prove itRead moreSo far, congressional Democrats have sat on their hands on this issue, presumably in deference to the supreme court. But with the rightwing court taking an axe to constitutional precedent and public opinion, an investigation into the Thomases might be the only way to course-correct what’s happening to the US constitution.We know that Ginni Thomas texted Mark Meadows, the former White House chief of staff, between November 2020 and January 2021 urging measures to undermine Biden’s win and keep Trump in power. After Congress certified the election for Biden, she criticized former vice-president Mike Pence in a message to Meadows for refusing to disrupt the counting of electoral college votes, writing, “We are living through what feels like the end of America.”The messages contain sly references to a “best friend”, which Ginni and Clarence Thomas have been known to call each other. In a viral Facebook post on 6 January 2020, now removed, she wrote, “LOVE MAGA people!!!!” Thomas attended the Capitol rally that day, though she has said she left before Trump’s speech at noon.We also now know that Thomas emailed Arizona lawmakers in November and December of 2020, pushing them to devise a slate of presidential electors in defiance of Arizona voters’ choice for Biden. In an email in November, she urged Arizona legislators to “stand strong in the face of political and media pressure”, claiming (wrongly) that the choice of electors was “yours and yours alone”.On 13 December, the day before the electors cast their votes for Biden, she circulated a second email stating: “Before you choose your state’s electors … consider what will happen to the nation we all love if you don’t stand up and lead,” and linking to a video of a man asking lawmakers not to “give in to cowardice”. On 14 December , a group of fake Trump electors met in Arizona to sign a document falsely declaring themselves the “duly elected and qualified electors” for the state.Thomas allegedly waged a similar pressure campaign in Wisconsin. “Please stand strong in the face of media and political pressure,” she emailed two Republican lawmakers on 9 November, shortly after news outlets called the election for Biden. “Please reflect on the awesome authority granted to you by our constitution. And then please take action to ensure that a clean slate of electors is chosen for our state.”Earlier this year, the New Yorker detailed Ginni Thomas’s deep connections to multiple rightwing groups that seek to influence the supreme court. Thomas, herself a lawyer who runs a small lobbying firm, Liberty Consulting, is on record as declaring America to be in danger due to a “deep state” and a “fascist left” peopled by “transexual fascists”. She posted about Trump’s loss on a private listserv, Thomas Clerk World, which includes approximately 120 former Clarence Thomas clerks. Artemus Ward, a political scientist at Northern Illinois University, has called the group “an elite rightwing commando movement”.Thomas is also a director of CNP Action, a dark-money group that the New Yorker described as “connect[ing] wealthy donors with some of the most radical rightwing figures in America”, and on the advisory board of Turning Point USA, a conservative non-profit that sent busloads of protesters to the Capitol on January 6. And in 2019, she announced her partnership in Crowdsourcers, along with James O’Keefe, the founder of Project Veritas, an outfit known for producing embarrassing videos of progressives.In 2020, Project Veritas petitioned the US supreme court to halt Massachusetts from enforcing a state law banning the secret taping of public officials. Another Crowdsourcers partner was Cleta Mitchell, a lawyer who played a central role helping Trump in his failed efforts to overturn the 2020 election results, and now faces ethics charges. Mitchell was on the 2 January 2021 phone call in which Trump cajoled the Georgia secretary of state, Brad Raffensperger, to “find” 11,780 votes to swing the state to Trump. That effort is being criminally investigated by a grand jury in Georgia.According to the New York Times, the January 6 committee is most interested in asking Thomas about her communications with John Eastman, a conservative lawyer who infamously penned a six-step scheme for Pence to block or delay the counting of electoral college votes. According to the committee’s leaders, Eastman also “worked to develop alternative slates of electors to stop the electoral count”.In a March opinion in Eastman v Thompson, a federal judge in California rejected Eastman’s attempt to keep his emails from the committee, identifying Eastman as probably having collaborated with Trump in multiple federal crimes, writing: “Based on the evidence … it is more likely than not that President Trump corruptly attempted to obstruct the Joint Session of Congress on January 6, 2021.”The Thomases’ conflicts of interest have prompted calls for a supreme court code of conduct, which would require justices to recuse themselves from cases that might otherwise give rise to even an appearance of partiality. But it is not at all clear that Ginni Thomas is beyond the sights of criminal liability, either.Of course, that sort of action would have to come through the justice department. Congress’s power is confined to making legislative changes. But the attorney general, Merrick Garland, has been resolute in his public commitment to enforce relevant federal laws, reiterating recently that “Rule of Law means that the law treats each of us alike: there is not one rule for friends, another for foes; one rule for the powerful, another for the powerless.” Ginni Thomas should be concerned.For his part, Clarence Thomas was the only dissenting vote in a January 2021 ruling on an emergency application from Trump asking the supreme court to block the release of White House records to the January 6 Committee regarding the attack on the Capitol – records that in theory could have included messages between his wife and Meadows. He gave no reasons for his dissent.Thomas also dissented, along with Justice Samuel Alito, from the court’s refusal to entertain a lawsuit by Texas asking that it toss out the election results in four other states – a legal “claim” that, to date, does not even exist as a matter of federal law.Perhaps most disturbing is the court’s agreement to hear Moore v Harper this term, a case that strikes at the heart of the January 6 committee’s work. It raises a novel constitutional argument which Trump lost repeatedly in 2020: that the constitution lodges power over elections exclusively in state legislatures. If the court rules that legislatures have full power and control, it could cement unfairness in the electoral system as a matter of constitutional law, as many states are already gerrymandered to lock in power for one political party, mostly Republican.Although Congress could legislatively add seats to the supreme court or impeach a justice, with evidence, to stave off further encroachments on individual rights and federal authority by this court, both measures would require a level of bipartisan support that is difficult to imagine.Yet it’s impossible to predict where the further unraveling of the Ginni Thomas conflicts might lead – and whether those facts could produce another unprecedented fissure in our system of government. For now, Congress must, at the very least, peer behind the Thomases’ curtain.
      Kimberly Wehle is a law professor at American University and a legal analyst for ABC News. Her latest book is How to Think Like a Lawyer and Why
      TopicsUS politicsOpinionJanuary 6 hearingsUS Capitol attackUS supreme courtClarence ThomasLaw (US)commentReuse this content More

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      US courts must stop shielding government surveillance programs from accountability | Patrick Toomey and Alex Abdo

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      US courts must stop shielding government surveillance programs from accountabilityPatrick Toomey and Alex AbdoThe NSA’s surveillance of Americans’ internet use raises serious constitutional concerns, but the government claims a lawsuit against the program would compromise ‘state secrets’ Imagine the government has searched your home without a warrant or probable cause, rifling through your files, your bedroom dresser, your diary. You sue, arguing that the public record shows it violated your fourth amendment rights. The government claims that it has a defense, but that its defense is secret. The court dismisses the case.In-person teaching has resumed in the US – but electronic snooping hasn’t stopped | Arwa MahdawiRead moreThat’s precisely what the federal government has increasingly said it can do in cases related to national security – under the so-called “state secret privilege”. It can violate constitutional rights, and then defeat any effort at accountability by claiming that its defense is secret – without even showing its evidence to a court behind closed doors. The latest installment in this troubling trend involves the National Security Agency’s monitoring of Americans’ international internet communications.Under a post-9/11 surveillance program known as “Upstream”, the NSA is systematically searching Americans’ internet communications as they enter and leave the United States. The agency sifts through these streams of data looking for “identifiers” associated with its many thousands of foreign targets – identifiers like email addresses and phone numbers. The NSA does all of this without warrants, without any individual judicial approval, and without showing that any of the people it is surveilling – including countless Americans – have done anything wrong. This surveillance raises serious constitutional concerns, but no court has ever considered a legal challenge to it because the government has claimed that allowing a suit against Upstream surveillance to go forward would implicate “state secrets”. Late last month, we filed a petition asking the US supreme court to make clear that the executive branch cannot invoke state secrets to dismiss cases challenging unlawful government conduct. The petition, which we filed on behalf of the Wikimedia Foundation (the non-profit that operates Wikipedia), explains that Upstream surveillance violates the privacy rights of Wikipedia users and Wikimedia itself. But the issue we’re asking the supreme court to decide has far broader implications for efforts to hold the government accountable for the most serious abuses. Historically, the state secrets privilege was not a basis for dismissing cases. When the privilege developed in the early English and American courts, it allowed the government to withhold specific pieces of sensitive evidence. As with other privileges – like the attorney–client or priest–penitent privileges – the sensitive information was excluded, and the case would go forward without it. Sometimes the plaintiff would prevail using other available evidence, and sometimes they would lose. But they would have the chance to make their case in court. In recent years, however, the government has invoked the state secrets privilege not as a shield but as a sword, to seek dismissal of cases even where the plaintiff can make its case using public evidence – as Wikimedia is willing to do. In 2007, for example, an appeals court dismissed a lawsuit filed by Khaled El-Masri claiming that, in a case of mistaken identity, he had been kidnapped and tortured by the CIA. The court acknowledged the public evidence of El-Masri’s mistreatment but held that state secrets were too central to the case to allow it to go forward.And in 2010, a different appeals court dismissed a lawsuit filed by five individuals who claimed that one of Boeing’s subsidiary companies had flown the planes carrying them to the black sites where they were tortured by the CIA. This use of the state secrets privilege – to dismiss cases – departs from the supreme court’s narrow framing of the privilege. The court decided its seminal state secrets case, United States v Reynolds, in 1953, after three civilians died in the crash of a military plane. Their families sued and requested the flight accident report. In response, the government asserted the state secrets privilege, arguing that the report described secret military equipment.The court acquiesced, but it emphasized that the plaintiffs could try to prove their case using other evidence. While the supreme court has accepted dismissal in a small set of cases involving secret espionage contracts, it has never blessed this approach for other cases, let alone ones involving allegations of serious constitutional violations. In Wikimedia’s current lawsuit, the government has taken the maximalist approach. It has asked the courts to dismiss the case on state secrets grounds even though the government itself has released dozens of official reports, court opinions and other documents about Upstream surveillance.Notwithstanding this public record, the lower courts threw out the case – without ever deciding whether this sweeping surveillance is constitutional. The petition we filed gives the supreme court an important opportunity to rein in these over-broad invocations of secrecy. The court should instruct lower courts not to dismiss cases when the government invokes the state secrets privilege, but rather to use the array of tools that courts have long used to adjudicate cases involving sensitive information – for example, relying on security-cleared counsel, as courts routinely do in criminal cases, or examining secret evidence behind closed doors to assess its impact on a case. Unless the supreme court steps in, the state secrets privilege will continue to be a “get out of jail free” card for the government – enabling it to violate the constitution with impunity by invoking secrecy.
      Patrick Toomey is deputy director of the American Civil Liberties Union’s National Security Project
      Alex Abdo is founding litigation director for the Knight First Amendment Institute
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      ‘He’s done’: how Donald Trump’s legal woes have just gotten a lot worse

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      ‘He’s done’: how Donald Trump’s legal woes have just gotten a lot worseNew York civil lawsuit accusing Trump family of ‘staggering’ fraud could derail presidential bid, experts say Donald Trump’s legal perils have become insurmountable and could snuff out the former US president’s hopes of an election-winning comeback, according to political analysts and legal experts.On Wednesday, Trump and three of his adult children were accused of lying to tax collectors, lenders and insurers in a “staggering” fraud scheme that routinely misstated the value of his properties to enrich themselves.The civil lawsuit, filed by New York’s attorney general, came as the FBI investigates Trump’s holding of sensitive government documents at his Mar-a-Lago estate in Florida and a special grand jury in Georgia considers whether he and others attempted to influence state election officials after his defeat there by Joe Biden.The former US president has repeatedly hinted that he intends to run for the White House again in 2024. But the cascade of criminal, civil and congressional investigations could yet derail that bid.01:13“He’s done,” said Allan Lichtman, a history professor at American University, in Washington, who has accurately predicted every presidential election since 1984. “He’s got too many burdens, too much baggage to be able to run again even presuming he escapes jail, he escapes bankruptcy. I’m not sure he’s going to escape jail.”Allen Weisselberg, Trump Organization financial chief, pleads guilty to tax fraudRead moreAfter a three-year investigation, Letitia James, the New York attorney general, alleged that Trump provided fraudulent statements of his net worth and false asset valuations to obtain and satisfy loans, get insurance benefits and pay lower taxes. Offspring Don Jr, Ivanka and Eric were also named as defendants.At a press conference, James riffed on the title of Trump’s 1987 memoir and business how-to book, The Art of the Deal.“This investigation revealed that Donald Trump engaged in years of illegal conduct to inflate his net worth, to deceive banks and the people of the great state of New York. Claiming you have money that you do not have does not amount to ‘the art of the deal’. It’s the art of the steal,” she said.Her office requested that the former president pay at least $250m in penalties and that his family be banned from running businesses in the state.James cannot bring criminal charges against Trump in this civil investigation but she said she was referring allegations of criminal fraud to federal prosecutors in Manhattan as well as the Internal Revenue Service.Trump repeated his go-to defence that the suit is “another witch hunt” against him and again referred to James, who is Black, as racist, via his Truth Social platform, also calling her “a fraud who campaigned on a ‘get Trump’ platform, despite the fact that the city is one of the crime and murder disasters of the world under her watch!”But critics said the suit strikes at the heart of Trump’s self-portrayal as a successful property developer who made billions, hosted the reality TV show The Apprentice and promised to apply that business acumen to the presidency.Laurence Tribe, a constitutional law professor at Harvard University, noted that the civil component “involves things of particular significance to Trump and his family and his organisation, namely their ability to defraud the public, to defraud banks, to defraud insurance companies, and to continue to subsist through corruption. Without all of that corruption, the entire Trump empire is involved in something like meltdown.”Tribe added: “Trump is probably more concerned with things of this kind than he is with having to wear an orange jumpsuit and maybe answer a criminal indictment … As a practical matter, this is probably going to cause more sleepless nights for Mr Trump than almost anything else.”No previous former president has faced investigations so numerous and so serious. Last month FBI agents searched Mar-a-Lago and seized official documents marked Top Secret, Secret and Confidential. Trump faces possible indictment for violating the Espionage Act, obstruction of a federal investigation or mishandling sensitive government records.As so often during his business career, Trump sought to throw sand in the legal gears. He bought time by persuading a court to appoint a judge, Raymond Dearie, as a special master to review the documents. But so far Dearie appears to be far from a yes-man. On Tuesday he warned Trump’s lawyers: “My view is you can’t have your cake and eat it too.”Special master in Trump case appears skeptical of declassification claimsRead moreThe ex-president also faces a state grand jury investigation in Georgia over efforts to subvert that state’s election result in 2020.The justice department is investigating his role in the deadly January 6 attack on the US Capitol by a mob of his supporters intent on preventing the certification of Biden’s election victory. Its efforts have been boosted by the parallel investigation by a House of Representatives committee, whose hearings are set to resume next week.In addition, the Trump Organization – which manages hotels, golf courses and other properties around the world – is set to go on trial next month in a criminal case alleging that it schemed to give untaxed perks to senior executives, including its longtime finance chief Allen Weisselberg, who alone took more than $1.7m in extras.In a further setback on Wednesday, arguably Trump’s worst-ever day of legal defeats, a federal appeals court permitted the justice department to resume its review of classified records seized from Mar-a-Lago as part of its criminal investigation.The former president, meanwhile, insisted that he did nothing wrong in retaining the documents. “There doesn’t have to be a process, as I understand it,” he told the Fox News host Sean Hannity. “If you’re the president of the United States, you can declassify just by saying: ‘It’s declassified’.”“Even by thinking about it, because you’re sending it to Mar-a-Lago or to wherever you’re sending it … There can be a process, but there doesn’t have to be.”Trump says you can declassify documents by just thinking about it pic.twitter.com/cFbQ1zclnq— Acyn (@Acyn) September 22, 2022
      Despite it all, Trump has been laying the groundwork for a potential comeback campaign and has accused Biden’s administration of targeting him to undermine his political prospects.Asked by a conservative radio host what would happen if he was indicted over the classified documents at Mar-a-Lago, Trump replied: “I think you’d have problems in this country the likes of which perhaps we’ve never seen before. I don’t think the people of the United States would stand for it.”Kurt Bardella, an adviser to the Democratic National Committee, said: “If the best defence you have for your conduct is: if you hold me accountable, there will be violence, that sounds like someone who has no business being either in public service or being outside of jail.”Bardella expressed hope that, at long last, Trump would be held to account. “Everything about Donald Trump has always been about the grift. It’s always been about the con. And now his unmasking is at hand.”TopicsDonald TrumpLaw (US)New YorkIvanka TrumpDonald Trump JrMar-a-LagoUS politicsnewsReuse this content More

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      Servants of the Damned review: Trump and the giant law firm he actually paid

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      Servants of the Damned review: Trump and the giant law firm he actually paidDavid Enrich delivers a withering study of how big law got into bed with the 45th president – Jones Day in particular Donald Trump stiffed his personal attorney, Rudy Giuliani, to the tune of $2.5m. He refused to grant him a pardon. The former New York City mayor is a target of prosecutors in Fulton county, Georgia. Then again, as David Enrich of the New York Times writes in his new book, by the time Trump entered politics his “reputation for shortchanging his lawyers (and banks and contractors and customers) was well known”. Giuliani can’t say he wasn’t warned.The Divider review: riveting narrative of Trump’s plot against AmericaRead moreIn Servants of the Damned, Enrich also recounts how Trump once attempted to settle a bill for nearly $2m.“This isn’t the 1800s … You can’t pay me with a horse,” the unnamed lawyer replied.Trump eventually coughed up. It was that or another lawsuit.Enrich is the Times’ investigative editor. Dark Towers, his previous book, examined Trump’s relationship with Deutsche Bank. It also laid out the ties that bound Anthony Kennedy, the retired supreme court justice, to the Trump family. Kennedy’s son once worked at the bank. Brett Kavanaugh, who replaced Kennedy on the court, once clerked for the judge.Servants of the Damned is informative and disturbing. In an unflattering portrait of the rise of big law, behemoth firms that reach around the globe, Enrich homes in on Jones Day. He tags other powerhouses – Paul Weiss, Skadden Arps and Baker McKenzie – for moral failures but repeatedly returns his gaze to the Cleveland-based Jones Day. It represented Trump.Whether the intensity of Enrich’s disdain is deserved is debatable. The public holds lawyers in lower esteem than auto mechanics, nursing home operators, bankers and local politicians. On the other hand, lawyers fare better than reporters. Beyond that, the bar’s canons demand that lawyers zealously represent their clients. Reputational concern and the ease or difficulty of recruiting fresh talent and clients are often more potent restraints than finger-wagging.Beginning in 2015, Jones Day was the Trump campaign’s outside counsel – which Enrich treats as an indelible stain. Almost six years later, he writes, the roof of Jones Day’s Washington office provided “a splendid view of a violent mob storming the Capitol”.The insurrection, Enrich says, was the “predictable culmination of a president whom Jones Day had helped elect, an administration the firm’s lawyers had helped run, and an election whose integrity the firm had helped erode”.Jones Day was not Trump’s post-election counsel, but Enrich assigns culpability. In the aftermath of the 2020 vote, one Trump White House insider lamented to the Guardian that Jones Day wrongly distanced itself from Trump’s efforts to overturn his defeat. The campaign paid Jones Day millions. Gratitude and support, the insider said, were in order.Jones Day lawyers marbled the administration. Don McGahn, a partner and a pillar of the conservative bar, was Trump’s first White House counsel. Trump made Noel Francisco solicitor general. Eric Dreiband led the civil rights division at the Department of Justice. All three are back at Jones Day. The revolving door is real.McGahn played a critical role in filling the federal bench with conservative judges who had Federalist Society approval. He presided over a revolution, of sorts. Roe v Wade, the supreme court ruling that guaranteed the right to abortion, lies in tatters.But when McGahn refused to cross the proverbial line during the Russia investigation, Trump soured on him. McGahn made and kept notes – to Trump’s consternation. McGahn quit in fall 2018. The following spring, Trump tweeted: “McGahn had a much better chance of being fired than [Robert] Mueller. Never a big fan!”Enrich also sheds light on the unrest Trump caused within Jones Day, particularly among lawyers who identified as mainstream Republicans. In 2014, Ben Ginsberg and McGahn arrived from another DC law firm. Ginsberg possessed sterling GOP credentials. He had worked at the apex of George W Bush and Mitt Romney’s White House campaigns. Enrich describes his office as “a shrine to the old Republican party”.But in the 2020 cycle, Ginsberg grew discomforted by the direction of Trump’s re-election bid. He called the president’s rhetoric “beyond the pale”. In late August, he resigned. Days later, he wrote a brutal column in the Washington Post, attacking Trump for pushing the lie of widespread election fraud and rubbishing mail-in voting.“The president’s rhetoric,” he said, “has put my party in the position of a firefighter who deliberately sets fires to look like a hero putting them out.” Republicans “risk harming the fundamental principle of our democracy: that all eligible voters must be allowed to cast their ballots. If that happens, Americans will deservedly render the GOP a minority party for a long, long time.”Days before the election, Ginsberg warned that his party was “destroying itself on the altar of Trump”.Holding the Line review: Geoffrey Berman blasts Barr and dumps TrumpRead moreThen there was Donald Ayer, deputy solicitor general in the Reagan administration and deputy attorney general under George HW Bush. After a clash with Dick Thornburgh, then attorney general, Ayer resigned. Bill Barr was his replacement. Ayer returned to Jones Day. In fall 2016, Ayer publicly voiced his opposition to Trump. In 2018, he retired. Before Joe Biden’s inauguration in 2021, Ayer told Enrich Jones Day “should have gotten off the wagon, because [Trump] is a scoundrel”.But in 2020, according to Open Secrets, the firm netted more than $19.2m in reported federal campaign spending. Trump was a golden ticket.Jones Day has emerged as a “go-to firm for Republicans, mainstream and fringe alike”, as Enrich puts it. With sneakers, vodka and computers, branding matters. Law firms are a little different. Through that lens, Servants of the Damned is as much a rebuke of one large firm as it is an indictment of Trump’s Republican party.
      Servants of the Damned: Giant Law Firms, Donald Trump, and the Corruption of Justice is published in the US by HarperCollins
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