Many conservatives now accept with bored acquiescence the near certainty that Trump, if elected, will dismiss both federal indictments against himself. Yet it would be an abuse far greater than the Saturday Night Massacre that once shocked the nation...
1/6
In Oct 1973, Nixon fired AG Elliot Richardson & then Dep AG Wm Ruckelshaus for refusing to fire Special Prosecutor Archibald Cox, who was subpoenaing Nixon’s White House tapes. The firings galvanized bipartisan support for impeachment proceedings ...
/2
... which began 10 days later. Quaint though it may now seem, US District Judge Gerhard Gesell even ruled, later on, that the Cox’s dismissal had been illegal. ...
/3
... Yet the SCOTUS majority in Trump v US contemptuously chided the bipartisan lower courts for trying to let justice be done before Trump has a chance to abuse power to derail it. They even purported to be acting expeditiously ...
/4
... though we are, right now, pointlessly counting 32 more days off the calendar for SCOTUS’s ruling to become final, because the court declined to make it immediate. (The pause permits the losing party to seek rehearing—inconceivable here as the Court well knows.) ...
/4
... Is the president now above the law? Half-heartedly, the majority claims (s)he is not—with asterisks galore. They say the dissents are “fear-mongering” with “extreme hypotheticals”—which they tellingly don’t deign to refute. ...
/5
... Justice Thomas disdains that tack. He quips that the once-revered notion has been largely meaningless all along. Immunity from prosecution for official acts *is* the law, he writes, archly. Silly Nixon, silly us, silly forefathers for imagining otherwise.
/6-end
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It’s Sep 5 and I’m at Prettyman US Courthouse in DC for today’s 10am hearing in US v Trump before Judge Tanya Chutkan. I’ll be live-tweeting for @lawfare from the media room, while colleague @annabower will be in the courtroom. ...
/1
Trump's attys & Special Counsel will be arguing over the timing & nature of the path forward after SCOTUS’s immunity ruling. This afternoon, at 4pm, @lawfare editor-in-chief Ben Wittes will interview @AnnaBower and me about today’s events. ...
/2 lawfaremedia.org/article/lawfar…
@lawfare @AnnaBower Trump will probably also be arraigned today on the new "superseding" indictment, but he has waived his appearance, so that will probably be very pro forma. ...
/3
A strong, shrewd amicus brief was filed yesterday in the appeal of Judge Cannon’s dismissal of US v Trump (MaL) for the AG’s alleged improper appt of Jack Smith. It urges reassignment to a new judge if the court reverses. I’ll encapsulate. ...
1/18 bit.ly/3Xecred
The brief was filed by @CREWcrew , ret. USDJ Nancy Gertner, & ethics profs Stephen Gillers & James S. Sample. What’s shrewd about it is what it doesn’t do. E.g., it never mentions who appointed Cannon. (Legal nonstarter & nobody needs to be told.) ...
/2
@CREWcrew ... For the most part, It doesn’t allege that Cannon’s in the tank for Trump. Instead, it quotes her expressed view that prosecuting an ex-president is an intolerable affront to his dignity & implies that her rulings are distorted by that firmly held belief. ...
/3
Though it’s outside @lawfare’s bailiwick, readers have expressed interest in the E. Jean Carroll v Trump cases. The appeal of the verdict in the 1st case to go to trial, known as Carroll II (because it was filed 2d), will be heard Friday. Here’s an overview ...
/1
Fri.’s appeal concerns the May 2023 $5M verdict for sexual abuse & defamation. (Trump’s opening brief in the other case, Carroll I, is due 9/13. That’s the Jan. 2024 $83.3M verdict, for defamations in 2019 & 2023—the last one triggered by the Carroll II verdict.) ...
/2
One key issue at Friday’s argument will be whether USDJ Lewis Kaplan abused his discretion in letting the jury hear testimony from Natasha Stoynoff (an former People reporter) & Jessica Leeds (airplane passenger) about similar alleged Trump assaults. ...
/3
Now that Trump has purported to “remove” his NY prosecution to federal court again, does Justice Merchan have power to rule on Trump’s immunity motion &, if he denies it, to sentence Trump? My thoughts here, but I invite @lee_kovarsky or anyone else to correct me. ...
1/5
Under 28 USC 1455(b)(1) Trump’s filing is untimely ("after trial"). He hasn’t sought USDJ Hellerstein’s leave to file late, and Hellerstein hasn’t granted it, so maybe Merchan can just go ahead. In addition ...
/2
... under 1455(b)(3), removals of criminal cases (unlike removals of civil cases) do not deprive the state judge of power to rule on most matters, the only exception being entry of “judgment of conviction.” ...
/3
To comply with SCOTUS’ immunity ruling, SC Jack Smith’s superseder is conservative; it doesn’t push the envelope. That’s wise, but painful. I think the case survives, but SCOTUS has req’d suppression of highly probative evidence of grave crimes. ...
1/14
Two caveats: 1st, the cuts were not nec’ly Jack Smith’s decisions; DOJ was involved. 2d, it’s possible that stuff that was cut might resurface later, offered as “evidence” of unofficial acts. But not much, IMHO. A few tweets, maybe—if that. ...
/2
Clearly, the whole DOJ/Jeff Clark chunk of the case had to go; SCOTUS was explicit about that. But all parts of the case have been watered down, due to suppression of damning conversations Trump had with DOJ, WH counsel, & WH advisors. ...
/3
When the govt files the “joint status report” tomorrow in US v Trump (DC), look for whether the govt is seeking Judge Chutkan’s preclearance of just the indictment or of *all* evidence it plans to present ...
1/8
... As my @lawfare colleagues explain below, the superseder scrubs the indictment of many official acts, but govt might yet try to resurface some purged allegations as evidence of the remaining *unofficial* acts for which Trump *can* be prosecuted. ...
/2 lawfaremedia.org/article/the-su…
@lawfare ... SCOTUS left unclear whether Judge Chutkan’s—& potentially SCOTUS’s—preclearance is req’d only for acts alleged to be crimes in the indictment, or for every scrap of evidence proving those crimes: 100s of exhibits & weeks of testimony. ...
/3