From Roger Fitch and his friends down under at Justinian

 

Pecker problems

ROGER FITCH ESQ • TUESDAY, JUNE 4, 2024

Trump minting coin from his felony convictions ... Toadies in the bleachers ... Justice Alito flagging his proclivities ... SCOTUS corrupted ... Rule of lawlessness ... More horrible judicial distortions in the pipeline ... Roger Fitch files from Washington 

"The smart play ... would have been to say it doesn't matter whether or not [Trump] had a relationship with Stormy Daniels, because that renders big chunks of the case irrelevant. But character is destiny, and Trump's character is egotistical and combative" - former federal prosecutor, NY Times 

"Trump Undone by the Truth of his Pecker" - ambiguous Emptywheel headline 

Donald John Trump has been convicted on all counts in People of the State of NY v Trump. The offender was charged with falsifying records to cover up another criminal offence. This could be his usual business practice, but in New York, it's a felony.

Lawfare listed what prosecutors had to prove in People v Trump, and the Times listed the 34 counts that were proved. 

Further felony charges against Trump remain and are awaiting trial in Georgia state court (election interference), DC federal court (the January 6 election theft attempt) and Florida federal court (Espionage Act violations), but Trump is already a convicted felon, affecting travel to 38 countries including Australia.

Sadly, Trump won't do the decent thing: drop out. Running is too lucrative. Since his conviction, fresh millions from sucker supporters have flooded in. "Moron", after all, is an Americanism.

The trial itself was uncontroversial, except for the unseemly behaviour of the defendant, who ranted before and after his court appearances, accompanied by an entourage of what one cartoonist called "Trump Chumps and Toadies", i.e, Republican camp followers and vice-presidential aspirants. 

Mob boss: "Benny Eggs" Mangano

Trump may not be an actual mob boss, but he took the precaution of hiring Susan Necheles, a former (unsuccessful) lawyer for the Genovese crime family underboss Venero "Benny Eggs" Mangano. In Trump's trial, Necheles had the unenviable task of cross-examining Stormy Daniels, and it didn't go well. 

The Republican groupies who followed Trump into court each day included the former head of Hell's Angels; a NY criminal gang of yesteryear; the convicted NY City Police Commissioner Bernie Kerik (pardoned by his patron); the crackpot lawyer Alan Dershowitz; the health care plunderer, now Senator, Rick Scott; the theocrat House speaker Mike Johnson; the Trump-convert and Hillbilly Elegy author, Senator JD Vance; the fraud-indicted Texas AG Ken Paxton; and the Indian-American vice-presidential wannabe Vivek Ramaswamy. 

There were so many congressional sycophants that it could have cost the Republicans a close vote in the evenly-balanced House.

Speculative clues to the further adventures of NY v Trump may be found in the Spring Exam set by Cornell Law Professor Michael Dorf for his Federal Courts course.

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Sammy Alito's flagpole - supporting the January 6 insurrection 

"Justice Alito ... Rewrites Racial Gerrymandering Standards to Help White Republican States" - Election Law blog headline 

"Justice Sam Alito [is] the Fox News ... justice on the US Supreme Court bench ... He doesn't have a legal philosophy beyond counting to five, and he doesn't write opinions for the ages. He writes for now and, almost always, for Republicans. He ... is a politician in robes" - Law Dork 

It's no longer in dispute: the Supreme Court has gone rogue, rubber-stamping  Republican causes at every opportunity, more here.

In addition, two of the justices, Sam Alito and Clarence Thomas, have shamelessly rejected the statutory ethics requirements that all US judges are meant to follow: 

"Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned." - 28 USC 455

In Alito's case, there's another violation: 

"No disrespect should be shown to the flag of the United States of America…The flag should never be displayed with the union down, except as a signal of dire distress in instances of extreme danger to life or property." - 4 USC 8. 

In May, the NYT broke the story about the raising of Alito's distress flag - the upside-down American flag - that occurred while Trump was being impeached in congress for insurrection, and while Justice Alito participated in supreme court cases touching on that event. 

More shocking is the new revelation that the Washington Post knew of this in January 2021 and sat on the story for nearly three and a half years, stumm, not only while Trump was being impeached in 2021 but also this year when Alito was considering Trump v Anderson, the Colorado insurrection-disqualification case and Trump v US, the "presidential impunity" appeal. 

Does Jeff Bezos (the owner of the Post as well as Amazon) feel some need to protect Alito? Has there been any Amazon case before the court? 

There's a second flag kerfuffle at the Alito beach house in New Jersey. 

Needless to say, Justice Alito has brazenly declined to recuse, blaming his wife, whose behaviour he admits he cannot control, and anyway, she owns the property as well (all of the beach house in NJ) and she is entitled to fly flags any way she likes as an expression of her First Amendment rights - nothing to see here! 

Congressman Jamie Raskin sees a way to force the justices to recuse, under existing federal legislation.

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Alito: high priest of the Supreme Court

Few legal writers allude to the disturbing fact that all six of the court's rightwing justices grew up Roman Catholic. In the view of some, "Trad Caths" have taken over the court, and Donald Trump's nominees have doubled their influence. 

What Eric Segall calls a "rule of lawlessness" now prevails on the court, with Justices Thomas and Scalia as "theoretical Leninists".

There have been many bad decisions since Trump stuffed the supreme court with partisan Republicans. The worst is probably the Bruen guns case, with the dog that didn't bark, but there are worse decisions coming down.

In the horrible Alexander v SC State Conference of the NAACP, the court manufactured a "get-out-of-jail" card for racial discrimination. Alexander is typical  of lower court decisions by non-partisan courts being reversed when they fail to advance Republican electoral interests. More here on South Carolina's racial gerrymander.

In Alexander, the supreme court has even changed the rules for appellate review, e.g, redefining what constitutes "clear error" on the part of a lower court, absurdly presuming state legislatures act in good faith, and even requiring that plaintiffs who attack racial gerrymanders produce their own, alternative, legislative maps.

Alito turned precedent on its head by adopting his own dissent from Cooper v Harris (2007); the court thus did all that was necessary to achieve the desired result for SC's Republican establishment: a bleached district for a safer seat in congress. 

Thomas with Stop the Steal Ginni

Scotusblog has more on a decision that accepts the SC legislature's shameful rebranding of racial gerrymanders as simply "partisan", knowing that, since the court's 2019 Rucho v Common Cause decision, partisan gerrymanders are "non-justiciable" (unreviewable).  

Clarence Thomas's concurring opinion was even more appalling, expressing his view that both racial and partisan gerrymanders are acceptable. 

From Roger Fitch and our friends down under at Justinian

 

Dark and Stormy times in the US of A

ROGER FITCH ESQ • TUESDAY, MAY 7, 2024

The MAGA Supreme Court ... Conservative judges flirt with absolute presidential immunity ... A reconfigured Constitution ... Trump's intimidation of witnesses and jurors in NY election fraud case ... Jury deadlocked in Abu Ghraib torture case ... Roger Fitch's letter from Washington 

"We told ourselves that at least six justices, and maybe even seven ... would still want to ensure that this November's elections would not be the last in history. Political hacks they may be, but they were not lawless ones.

"... during oral arguments in Trump v. United States, the Republican-appointed justices shattered those illusions ... These justices donned the attitude of cynical partisans, repeatedly lending legitimacy to the former president's outrageous claims of immunity from criminal prosecution. To at least five of the conservatives, the real threat to democracy wasn't Trump's attempt to overturn the election - but the Justice Department's efforts to prosecute him for the act. 

"These justices fear that it is Trump's prosecution for election subversion that will 'destabilize' democracy, requiring them to read a brand-new principle of presidential immunity into a Constitution that guarantees nothing of the sort. 

"They evinced virtually no concern for our ability to continue holding free and fair elections that culminate in a peaceful transfer of power. They instead offered endless solicitude for the former president who fought that transfer of power." - Slate.

"The conservative justices' argument for immunity assumes that Jack Smith's prosecution of Trump is politically corrupt and seeks a rule that would prevent future presidents from corruptly prosecuting their predecessors ... such a rule would license all future presidents to commit crimes against the United States while in office with impunity ..." - Michael Luttig.

"[T]his Court is not just a conservative Court, or a Federalist Society Court, or even a Republican Court - it is becoming a MAGA Court" - Michael Waldman.

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US Supreme Court: on track to botch the presidential immunity case (sketch artist Politico)

Historians agree: Donald Trump was the worst or near-worst president in US history. That Trump will surpass himself in venality, villainy and incompetence if again elected is so certain that foreign leaders and Democrats alike are working feverishly to insulate the world from his possible return. Democracy hangs in the balance, and authoritarianism beckons.

By contrast, the supreme court, reinforced by three Trump appointees, seems unconcerned. Trump's farcical claims to absolute immunity for presidential actions were respectfully received when Trump v US was argued April 25. 

The merits brief of Special Counsel Jack Smith, and amicus briefs of four-star military leaders and eminent historians, were ignored by the court's conservatives.

Will the court botch its immunity decision? After oral arguments, it seems very likely. Michael Dorf listed the hearing's lowlights, while Lawfare focused on what the justices asked. Others commenting: CNN's Joan Biskupic and Scotusblog's Amy Howe and Mark Walsh. 

The conservative judges studiously avoided references to Donald Trump and January 6, disingenuously  claiming  they were only interested in the abstract theory that requiring a sitting president to be subject to criminal law might have some effect on future presidents, i.e, punishing the first might chill the others.  

Justice Alito nonsensically argued that allowing ordinary criminal law to apply to a president might, far from punishing bad behaviour of a sitting president, encourage him to commit even more crimes in order to cling to power. 

Kavanaugh and Gorsuch raised an argument forfeited in the lower courts: that a criminal law doesn't apply to a president unless the statute clearly says so (only a handful do). 

Trump judges: Gorsuch and Kavanaugh

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Three days before the supreme court heard Trump v US, People of New York v Trump began, marking the first criminal trial of any US president. Lawfare and Just Security have primers on the legal theory behind the case. 

In their pleadings and arguments, defence lawyers persistently call their client "President" Trump; surely, if Citoyen Capet sufficed for Louis XVI, plain "Mister" should do for an ex-president. 

The prosecution filed a witness list, and described previous Trump transgressions that it intends to use to impeach his testimony if he takes the stand. 

As in the Carroll defamation cases that preceded it, "gag orders" have been placed on the defendant, designed to deter his threats and intimidation against prospective jurors and likely prosecution witnesses - it's an essential ingredient in any trial of the lawless scofflaw Donald Trump.

Even before the trial started, the defendant began flagrantly violating the court's gag orders, and he has already been fined (order). His violations outpace the court's capacity to consider them, but aside from jail, what will deter Trump? One (chastening) suggestion: picking-up trash on a community service order.

Fittingly, "trash collector" is how the Washington Monthly characterised the prosecution witness David Pecker, former publisher of the scurrilous National Enquirer. 

In the lead-up to the 2016 election, Trump gave Pecker's paper the task of "catching and killing" stories deemed damaging to the candidate, e.g, that of his relationships with the porn star Stormy Daniels and other high-priced "models". 

It worked; on election night, Stormy's abashed attorney emailed the Enquirer editor, "What have we done?". 

Ironically, Trump's craving for publicity in trashy tabloids betrays manners and taste that bar him from New York society; there, he'll never be more than an "elite aspirant". 

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Bush: limitations

George Bush had to be "re-elected" in 2004, to run out limitations on his first term's crimes before another government could prosecute them. 

He needn't have worried. Barack Obama let all the criminal limitations run, even the five-year ones. Obama's AG also obstructed most civil cases against companies who colluded in CIA crimes, e.g, Mohamed v Jeppesen Dataplan, the Boeing subsidiary that organised rendition flights for the torture program.

A few civil cases e.g, against the CIA contract psychologists who designed the torture regime, and the Pentagon's prison-based contractors, survived, as "state secrets" was not asserted. These cases were allowed to proceed to civil adjudication. 

Two of the contractor cases sprang from the Abu Ghraib torture scandal, a story that broke exactly 20 years ago. 

CACI International, who provided prison interrogators, and the Titan Corporation, who provided interpreters, were outed in 2004. In 2008, the Center for Constitutional Rights brought suit against both companies on behalf of affected prisoners. 

The two companies vigorously fought the cases, claiming the Pentagon was responsible and the contracts conferred immunity. 

In 2013, Titan (now L3 Technologies) settled for $5 million, but CACI fought on, in Al Shimari et al v CACI, claiming the Alien Tort Statute didn't apply. 

Judge Leonie Brinkema denied multiple dismissal motions, and late last year ruled the case could proceed. CCR has the background.

The case began in Virginia federal court on April 15. Although the evidence was damning, the case received little media notice - the trial date was the same as that originally set for Trump's NY fraud case. There was, however, reporting by Voice of Indonesia, Al Jazeera, the Guardian and LA Times. 

The jury deadlocked after eight days' deliberation, and sadly, the case ended in a mistrial. 

 

From Roger Fitch and our friends down under at Justinian

 

Courtroom capers 

ROGER FITCH ESQ • WEDNESDAY, MARCH 27, 2024

Trump ... Looking for the cash bond ... Lenders likely to be stiffed ... Supreme Court bends over for Trump ... Novel arguments for immunity ... Idiocy has its appeal ... From Washington, Roger Fitch reports 

"I often say Al Capone, he was one of the greatest of all time, if you like criminals" - Donald Trump 

"Trump represents the culmination of gangster Gemeinschaft" - John Ganz

The first criminal prosecution of a former US president is about to begin, briefly delayed by the late production of federal court documents that Trump subpoenaed in January.

The defendant has a sordid history, and the NY trial concerns hush-money paid to a prostitute before the 2016 election; Trump's co-conspirator, Michael Cohen, has already been convicted and served time.

Trump's trial will be about election influence, an attempt to corrupt a presidential election.

Clearly, Judge Juan Merchan has Trump's measure: one pre-trial order requires jury anonymity, in light of the "likelihood of bribery, jury tampering, or of physical injury or harassment of juror(s)".

Another is a comprehensive gag order against Trump's endless insults and harassment of court witnesses, prosecutors and jurors.

NY federal judge Lewis Kaplan also ordered anonymous juries and a gag rule, in the writer Jean Carroll's successful civil cases against Trump. After the second Carroll verdict, Kaplan thanked the jurors for their service, and recommended they never tell anyone they had been jurors, for the rest of their lives.

This is New York. They know Donald Trump. 

Moreover, the Times added, with MAGA threats:

"The intimidation is systemic and ubiquitous, an acknowledged tactic in the playbook of the Trump right that flows all the way down from the violent fantasies of Donald Trump himself. It is rare to encounter a public-facing Trump critic who hasn't faced threats and intimidation." 

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Stormy: hush

By co-incidence, there were two Trump court appearances on March 25. A date was set for the hush-money case (April 15), and March 25 was the deadline for Trump to post an appeal bond in the NY business fraud case in which Judge Arthur Engeron imposed a $356 million fine (with interest, $454+ million).

That amount, set for bond, was under appeal, and the Court of Appeals had not ruled. 

Getting a bond that big was never going to be easy for the cash-strapped defendant, who, with his deadbeat reputation, barely managed to post a $91 million Carroll defamation appeal bond. The Times warned: 

"If he reclaims the White House, it could be difficult for the bonding company to collect from a sitting president, particularly one who has stiffed lenders and lawyers in the past." 

Over 30 companies rebuffed Trump's efforts to secure the second bond, but the resourceful defendant had a back-up scheme: he arranged for a "special-purpose acquisition" shelf company, stuffed with cash from his followers, to merge with his nearly-broke "Truth Social" media company, with shares to be listed on the NYSE (symbol DJT). 

The plan: get the enterprise going in time for the new company's cash to be converted by Trump, the principal shareholder in time for March 25.

March 25 arrived, Trump had no bond, and DJT hadn't launched; would the defendant be found "swimming naked"? The classy ex-president was already so desperate, he was hawking $400 Trump shoes and $60 Trump-endorsed bibles. 

Then, as the disgraced ex-president shuttled between New York courtrooms, a third event occurred: the long-awaited ruling in the pending appeal of the bond amount was announced, and it contained a $300 million reduction from the bond set by Judge Engeron. 

Trump was given ten days to post a $175 million cash bond, and the ten days could make a difference: "DJT" finally went public, on March 26. It's share value doubled to $6 billion. 

Meanwhile, Trump's newly-installed Republican National Committee chair, daughter-in-law Lara Trump, promises the RNC will give Trump's legal costs ($50 million so far) priority when disbursing party funds. 

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Thomas and Alito (centre): expected to endorse Trump's view of election and document thefts

In Trump v Anderson, the Colorado case disqualifying Trump from office for insurrection, under Article 3 of the 14th amendment, the supreme court gave Donald Trump what he wanted: a bail-out and delay.

Professor Michael Dorf's legal analysis of the feckless court's dogs-dinner decision is probably the best on a judicial failure that has rekindled January 6 and could cause chaos. Moreover, Trump and 1,200 others charged in the January 6 riot can apparently run unimpeded for federal offices. 

The New Republic, Lawfare, NYRB and Slate have more. 

The court's ruling solved Trump's Article 3 problems. Was it part of a grand bargain of the justices in which Trump's farcical claim of absolute criminal immunity (still pending) will be disposed of in the government's favour?

Thus far, the supreme court has given Trump everything he wants. As the Times noted, the court is going out of its way to help him. The hearing in the total immunity case - so absurd it should never have been granted certiorari - is now set for the very last day of arguments in the 2023 term. What more could Trump's lawyers have hoped for? It's a bad sign. 

There shouldn't have even been the four justices required to grant certiorari to Trump's nonsensical, counter-intuitive claims, e.g, that elections are an official concern of presidents and meddling in one may be an immune presidential act.

Trump's lawyers are also arguing that purloining and hoarding classified, government-owned documents is also an immune official act.

As in the immunity case, Clarence Thomas may participate, as he did in delivering a fifth vote for the majority opinion in Trump v Anderson, yet it's hard to imagine any justices besides Thomas and Sam Alito endorsing Trump's view of elections and document theft.

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It's wrong that a trial can't proceed during an election season: it's filing charges during that period that's disfavoured. Beginning a federal criminal trial before the election is essential, especially as the authoritarian Trump, if elected, would dismiss the charges, including the Espionage Act violations.

Nevertheless, Special Counsel Jack Smith is having difficulty making classified document charges against Donald Trump clear enough for Aileen Cannon, a clearly-unqualified and patently-prejudiced judge.

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Fox News viewers

Aside from political appointees like Aileen Cannon, why would anyone prefer the chaotic Donald Trump over the accomplished Joe Biden? 

Is it collective amnesia? shared psychosis? cognitive dissonance? Are these voters mesmerised by extrinsic values?

With Trump it could be the "low information trap": voters don't "get it" because they don't know about it, or are unable to engage in critical thinking, both consequences of Murdoch media.  

A Salon writer thinks:

"It's not just that Trump's own intellectual baseline is so low. It's that Republican voters have lost the ability to notice when someone isn't making sense, having fried their minds on right-wing propaganda."  

Maybe, as Salon theorises, "Trump's idiocy is part of his appeal. For every mediocre white guy who wants to coast on his privilege, Trump is an aspirational figure".

Or perhaps, as Trump has implied, his supporters just "like criminals". 

The man himself certainly does.

From Roger Fitch and our friends down under- at Justinian

 

Danger ahead - falling rocks

ROGER FITCH ESQ • WEDNESDAY, FEBRUARY 28, 2024

Voting in America ... Gerrymanders and voter suppression give Republicans a whopping advantage ... The 14th amendment and its possibilities ... The post-Civil War reconstruction amendments ... Trump and the suspension of the Constitution ... Roger Fitch explains 

If more Americans had been able to vote in 2016, Donald Trump would have lost. 

However, thanks to the supreme court's decision in Shelby County v Holder (2013), the 2016 presidential election was the first in 50 years without the essential protections of the 1965 Voting Rights Act, resulting in massive vote suppression.

After the court inexplicably struck down the recent, near-unanimous, re-enactment of the Act's provisions requiring federal pre-clearance of voting measures, a toxic torrent of voting restrictions poured forth from conservative (and racist) states.

Private enforcement actions remained, but in November 2023, a 2-1 panel of the 8th circuit issued a clearly-wrong decision that such actions are not allowed, though they've been used for 40 years during which time private litigants brought 182 successful lawsuits and the DoJ alone only 15. 

Worse, four Republican states are cynically pursuing a two-pronged attack on the remnants of the VRA.

A third of eligible voters in America fail to vote. Why? It's the difficulty of doing so under Republican Party governance. Voting is voluntary, and it's actively discouraged through onerous registrations and voting, pointlessly-purged voter rolls, inconvenient polling sites, Tuesday elections, deliberately-burdensome ID requirements, restricted voting hours, and even punishments for poll assistance.

If one succeeds in voting, gerrymanders can give Republicans an advantage of 7% or more; in Wisconsin 47.5% of the vote gives Republicans a two-thirds super-majority in the legislature, enough to override executive actions of the progressive Democrat governor.

Enforcement of an overlooked provision of the 14th amendment might address these problems.

Americans are constantly reminded of the holy writ enshrined in the Constitution (1789) and Bill of Rights (Amendments 1-10, adopted 1791), but people know little about the Reconstruction Amendments hammered out by Congress after the Civil War, in debates rivalling those of the Philadelphia Constitutional Convention eighty years earlier. 

Reconstruction Amendments - deliberations

Following the Civil War, the 13^th, 14^th and 15th amendments were adopted to recast the Constitution and Bill of Rights, and vindicate the supremacy of the federal over state governments, not least in matters of citizenship, voting, and (gender aside) freedom from discrimination. 

Most people have heard of the 13th Amendment, abolishing slavery, and perhaps the 15th, but it's the 14th that is most well-known, the amendment that turbo-charged the Bill of Rights. Properly interpreted, the 14th would be Donald Trump's kryptonite, as its Section 3 prohibits certain insurgents holding office. 

The supreme court, however, seems sure to allow Trump on the ballot, simply deferring a constitutional crisis. Why? Perhaps because Section 3 doesn't mention the (Australian) ballot. 

Other sections of the 14th are more consequential: Section 1 adds birthright citizenship, equal protection and privileges or immunities to the due process provided in the Bill of Rights, making these federal protections also those of state citizens. Then there is Section 2: 

"Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State ... when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State." (emphases added)

It was Section 2 that introduced a gender distinction for the first time through its "male" references: no mention of sex appears in the Constitution or Bill of Rights.

In Section 1, women were included in the same birthright citizenship, "privileges or immunities", due process, and equal protection as men. Yet during the compromises in drafting section 2, recognition of women was dropped: it was thought its inclusion would make ratification too difficult.

The campaign for women's suffrage had begun before the War, in the 1848 Seneca Falls Convention, and there were precedents for women voting, e.g, single women and widows voted in New Jersey from 1776 to 1807, when the all-male legislature put a stop to it. 

Hence one purpose of Section 2 - in referring to male inhabitants and male citizens - was deterring states from increasing their representation in congress by enfranchising women, as soon occurred in Wyoming Territory (1869) and elsewhere in the West. The "male" distinction became redundant after the adoption of the 19th Amendment (1920).

The 15th Amendment also refers to "males", as it only sought to deal with racial, not sex, discrimination. What is striking is that the amendment does not contain a right to vote, something the US, alone among advanced democracies, lacks. 

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Barry Blitt's "Exposed"Donald Trump's absurd and intensely-contested claim of presidential immunity from criminal prosecution in DC has reached the supreme court (he's proposing another immunity in the Florida documents case).

As Michael Dorf lamented, it's been over eight years since Trump, "descended his escalator to destroy American democracy and basic human decency". 

Now there's another election in less than nine months; if Trump wins again, there may be no stopping his mission. 

The world itself is in danger.

Trump has meanwhile gone full fascist: his vermin rhetoric is Nazi talk, and should alarm media who quibbled over Hillary Clinton's mild characterisation of Trump supporters as deplorable. 

The NY Times compiled a list of Trump's frightening rants in a new series of articles designed to alert Americans to the existential danger they face should the bestial Trump be elected this year. More here.

He has spoken of suspending the Constitution, building deportation camps, weaponizing the Department of Justice, purging career civil servants (a long-time project of the quasi-fascist Heritage Foundation), and more, seeking destruction of the "Deep State". 

Trump promises to invoke the 1807 Insurrection Act, a step towards martial law, on his first day in office. It's  all part of an authoritarian playbook for 2025. 

People tend to forget that Donald Trump is an accomplished conman with a lifetime's practice abusing the law; if he wins the election, the powers a president has for pardons, payoffs, and payback will be misused to the fullest extent. He could make some legal troubles go away. 

Meanwhile, in a NY state fraud case, Trump has been fined (with prejudgment interest) $450 million; $112,000 a day accrues post-judgment.

The NY "hush-money" pay-off trial begins March 25. 

The "Mar-a-Lago documents" case for Espionage Act violations and witness tampering is tentatively set for May 20.

Enjoy!

 

FROM ROGER FITCH and our friends down under at Justinian.

 ROGER FITCH ESQ • MONDAY, JANUARY 29, 2024

The cowboys of Texas ... Asserting control over immigration ... Operation Lone Star ... Confederate theory of secession is alive and kicking ... Usurping federal powers ... Trump judges to the rescue ... Wild defence claims in election conspiracy case ... Roger Fitch reports from Washington 

Texas has always asserted its enduring sovereignty, claiming to be the only state that was previously a republic (Vermont disagrees). The state bolted from the Union once: it was almost the first to secede in 1861, and in 1870 it was one of the last readmitted.

Why? It was among the last to ratify the 15th amendment guaranteeing the right of "males" to vote without racial discrimination. 

In fact, the original admission of Texas in 1846 was so contentious and unpopular that, alone among the states, it was done by joint congressional resolution. Texas reserved the right to subdivide into five states, which, happily, never occurred; 108 US senators, ten of them Texans, doesn't bear thinking about. 

When British author John Bainbridge's seminal book about Texas, The Super-Americans, appeared in 1961, the state was still ruled by the same conservative Democrats (today's Republicans) who defended the "White Primary" (disallowed in Smith v Allwright, 1944) and segregated state universities (struck down in Sweatt v Painter, 1950). 

The Bainbridge paperback bore the cover blurb, "an incipient fascist state". Perhaps incipient no more: the majority-minority Texas has been tightly controlled by white-minority Republicans for a generation. Since George Bush's 1994 election as governor, most state-wide officers (governor, lieutenant governor, attorney-general, members of the supreme court and court of criminal appeals) have been Republicans. 

Since the Republicans' unprecedented 2003 do-over of the previous (Democrat) legislature's 2000 census-based redistricting, the party's unshakeable gerrymanders have guaranteed perpetual Republican control of the legislature and state congressional delegation.

In 2019 (in Rucho v Common Cause), a Republican-dominated US supreme court stopped all federal judicial review of partisan gerrymanders at the moment when most gerrymanders favoured Republicans. 

With permanent government assured, Texas Republicans have taken increasingly bold stances against the federal government, and with Donald Trump's extreme Federalist Society judges now in place at all levels of the federal judiciary, the state is reasserting its independence, bringing test cases of Texas's purported sovereign supremacy in sympathetic federal courts. 

It's the 1830s and "Nullification" again, with Texas standing-in for South Carolina. Indeed, 24 of the 25 Republican governors have piled on with what is essentially the Confederate Theory of Secession.

Operation Lone Star appropriates immigration control, though states have no right or power to participate in immigration policy, a federal matter. No matter, Texas found a friend in Drew Tipton, the district judge alternating with fellow Texan Matthew Kacsmaryk as worst Trump-appointed judge.

Texas governor Greg Abbott has also attacked immigration law in Kacsmaryk's court, where ultra vires interventions in federal immigration policies have succeeded. 

Abbott: all hat, no cow

An early Texas victory reached the supreme court, which declined to stay (pending appeal) a Kaczmaryk ruling that Biden could be forced to reimpose a discarded Trump remain-in-Mexico policy (now lapsed) that the Mexican government might refuse to implement.

Wrongly claiming that refugees can only enter the US at state-selected border bridges, Governor Abbott claimed authority over the entire border, placing buoys to deter migrants at shallow river crossings, e.g, near the International Bridge at Eagle Pass. 

When the US sued over "anti-migrant barriers", a federal judge ordered the state to remove the buoys, a decision upheld by a Fifth circuit panel, but the Texas AG, criminally-indicted Ken Paxton, is getting an en banc rehearing before the Fifth circuit, the most conservative (12 of 17 judges are Republican appointees).

The buoys remained, and Texas began rolling out razor wire, including at the state's land border with New Mexico near El Paso. The state also began booby-trapping likely river crossings.

When the federal government removed the river wire as obstructing navigation and access to migrants, AG Paxton sued, claiming the state's razor wire at Eagle Pass had been "illegally" cut by the Biden Administration. 

Paxton's laughable legal theory, trespass against chattels, was rejected, and the district court ruled for the US. On appeal, a Trump-tainted Fifth circuit panel accepted Texas's doctored videos of purported federal inaction and granted an injunction preventing the US cutting the wire. 

Lone Star border control

Texas then wired off more of the border, with the Texas State Guard blocking the US Border Patrol and federal law enforcement, including US military. The state's exclusion of the US contributed to the death of three migrants, and there was a showdown with the Texas Military Forces, who ostensibly act under federal authority.

The Department of Homeland Security sent a polite letter to Paxton, giving him until January 17 to cease and desist blocking US Border Patrol's access to the river; Paxton's reply was puerile and insolent (press release here). 

The supreme court ruled 5-4 for the Biden administration, but Texas continues to flout the law, more here. Worse, the legislature's Senate Bill 4 has taken effect, creating a parallel immigration system where state law enforcement agencies can arrest and deport undocumented immigrants within the state's borders. The New Republic and Steve Vladeck have more.

Clearly, a state law purporting to authorise arrest of "illegal" immigrants is blatantly unconstitutional, usurping federal powers and arrogating to the state the power to issue international deportation orders. More here on Senate Bill 4.

El Paso County and immigrant groups have filed suit in federal court, seeking an injunction. Governor Abbott cannot have legal advice (other than his devious AG's) that the state can lawfully arrest, imprison and deport people; some are entitled to refugee status or parole (e.g, the Republican-hated "humanitarian parole"), others may be legal residents or even American citizens. 

Even so, false arrests have already begun; the many lawsuits that follow will prove costly for the state's employees and taxpayers. 

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The Washington Monthly has a Trump coup trial primer for Special Counsel Jack Smith's election conspiracy case, the "highest-level criminal trial in America" since 1807, when Thomas Jefferson's former VP Aaron Burr was acquitted of treason. This time, jury tempering and witness intimidation are real possibilities. 

VP Burr ... Trump's criminal trial will be bigger 

Trump's coup trial lawyers are pressing for wild and irrational defence claims to be heard by the DC jury, pursuing a laughable, nonsensical and ultimately idiotic argument that he can't be prosecuted for any crimes committed when he was president, arguments that are incredible, inconsistent and incoherent.

In due course, the crybully Trump appeared at the DC Circuit, where his lawyers artlessly argued that he could even assassinate rivals while president, and get away with it, unless previously tried and convicted by the senate, something a mere 34 Republican senators can prevent. 

Trump's argument during his second impeachment in 2021 was just the reverse: that he should be charged, if at all, in a criminal court. Professor Dorf has more. 

Meanwhile, in a shameless election year stunt, Trump's drumhead congress wants to impeach President Biden for what he did before he took office.