From Roger Fitch and our friends down under at Justinian.

 

Trump v US

Roger Fitch Esq • Tuesday, July 30, 2024

Judge Aileen Cannon ... No more special prosecutors ... Rogue judges at the highest level ... Presidential immunity decision worse than anticipated ... A dreadful partisan court ... Milwaukee convention ... Vance has no conviction - unlike his running mate ... Roger Fitch files from Washington 

"FBI searches for motive in Trump shooting" - mystifying Associated Press headline.

What a great election choice! On one side, representing the party that has always claimed it stands for law and order, the candidate standing for president is a felon, the career criminal Donald Trump. On the other side, his worst nightmare, a former San Francisco public prosecutor and California AG, Kamala Harris. 

Criminal charges, however, don't faze Republicans. In Florida, a convenient trapdoor has been provided to one set of charges by a Trump-appointed federal judge. According to Aileen Cannon, the special counsel prosecuting Donald Trump was illegally appointed. 

Ignoring court precedents, the intensely ambitious Judge Cannon caught a Clarence Thomas pass and dismissed the Espionage Act case against Trump, just as Thomas had suggested in his presidential immunity concurrence. More here on the wildly ultra vires decision by Trump's rogue federal district judge. 

As Obama's former White House counsel Bob Bauer commented, if Cannon's ruling is upheld, we may never again see the likes of Archibald Cox, Leon Jaworski, Robert Mueller or Jack Smith.  

Stolen documents in Mar a Lago bathroom, with chandelier 

Cannon's decision fits neatly with the supreme court's ruling, in Trump v US, that presidents enjoy absolute immunity for "official" acts, even patently criminal ones involving murder and bribery, and are also presumed to be immune for everything unofficial.

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"The parallels between [Trump v US] and Germany's Enabling Acts …similarly ratified by the German Supreme Court right after Hitler took power in early 1933 - are startling. That collection of laws ruled that whatever Hitler said in the context of an 'official act' instantly became the law of the land. For all practical purposes, as the nation's leader, he became immune from prosecution under the laws that applied to every other normal German or elected politician." - Thom Hartmann

Although everyone is reeling from the new presidential election dynamics in the US, all eyes should still be on the US Supreme Court and a decision being called the Dred Scott of our time. 

Hitler: immune from prosecution

In perhaps the most partisan power grab in its 235-year history, the supreme court on July 1 attempted to nullify all the outstanding federal criminal litigation against Donald Trump as well as litigation under appeal in New York State and Georgia. Rather than Justice Gorsuch's promised "rule for the ages", it's a rule tailor-made for Donald Trump.

As international law professor Oona Hathaway noted in Foreign Affairs, for the rest of the world the US president has always been above the law. Now Americans themselves will learn what that means.

In a decision that will live in infamy, the court ruled that a president is, in all essential matters, above the law. That's contrary to the Constitution; Article 1, Section 3, makes clear that even a president who has been impeached and convicted remains "liable and subject to indictment, trial, judgment and punishment, according to law".

By a majority of 5-4 (Justice Barrett not joining), dicta was inserted in Trump v US that may affect multiple criminal prosecutions in several states, e.g, those involving fake electoral slates. 

The five justices opined that even the evidence of crimes that falls within the president's astonishingly-broad "official acts", e.g, contacts and phone calls between the president and others, perhaps bribery and corruption, attempted subversions of justice through corrupt contacts with department employees (e.g, Jeffrey Clark in the DoJ), intimidation of the Vice-President and the Justice Department's senior officers, pressuring Georgia officials to "find" votes, cannot be admitted in court, nor the president's motives and good faith queried.

More here on CJ Roberts' now-notorious footnote 3. 

Roberts: footnote three

The immunising of improper contacts with the Justice Department offers Trump a licence for vengeance, as envisioned by the Heritage Society's frightening, Republican-endorsed Project 2025. 

The supreme court's decision is part of a pattern, and Eric Segall thinks it's all about the election: 

"[T]he Court's fast-tracking of the disqualification case ... combined with the slow-walking of the immunity case ... had the purpose and effect of making sure Donald Trump would be on the ballot in November and that the pending criminal case against him brought by Jack Smith would not be concluded by the election but, even if it were, the case would be much, much harder to win. Those events demonstrably help the Republican Party and Donald J. Trump."

In other words, Trump v US is even worse than people think. The supreme court has attempted to kill every case against Donald Trump.

How worried should Americans be? Back in 2019 (before Trump's Espionage Act charges), former head of CIA Russian operations John Sipher concluded that Donald Trump was not a Russian agent. Though easy to recruit and manipulate, he would be beyond control: 

"His narcissism, poor memory and ego would make it ... impossible for him to follow directions and keep a secret ... He blathers about things he doesn't understand ... is loathe to admit mistakes, lies constantly and is barely intelligible ..."

In the light of Trump v US, however, Sipher sees a new and different national security threat: a president who might direct the CIA or a mercenary to engage in illegal activities, and then order that the CIA director not brief Congress on such activities. 

The question now presented: if the supreme court has actually authorised Donald Trump to order his rival killed by Seal Team Six, is the military entitled to disobey that order? 

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It's been a horrible supreme court term all around, and it's impossible to overstate the damage it has done.  While amplifying presidential power, the court has kneecapped federal agencies.

The demise of "Chevron deference" will bring the most ominous changes to administrative law. 

Conservative Catholics on the US Supreme Court: shameless partisans

As David Dow notes, "[N]ow that Chevron has been overruled by Loper Bright Enterprises v Raimondo, federal courts will no longer defer to scientists or experts when it comes to interpreting ambiguous statutes. The anti-intellectualism in American life that the political scientist Richard Hofstadter identified in 1963 has taken over the judicial branch." 

Lawrence Tribe has more on the shameless partisan hackery of the court; Chris Geidner believes the Supreme Court Six have signalled they will consider anything. 

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In Wisconsin, the credulous ninnies and cult-worshippers who underpin today's Republican Party staged its quadrennial freak show (convention) to anoint a presidential candidate. Their reward was a 90-minute acceptance speech containing a torrent of lies. 

Meeting in the once-socialist citadel of Milwaukee, the delegates, some cranks, some under indictment themselves, chose a convicted felon as their presidential candidate, along with a running mate who once compared his leader to Hitler.

As Kentucky's Governor Andy Beshear quipped, "The problem with JD Vance is, he has no conviction. But ... his running mate has 34."

FROM ROGER FITCH AND OUR FRIENDS DOWN UNDER

 

Reign of Terror

ROGER FITCH ESQ • FRIDAY, JULY 5, 2024

SCOTUS ... Shocker decisions from the latest term ... The Trump Docket ... Presidential immunity ... Gratuities and bribes ... Obstruction ... Admin law trashed ... Criminalising the homeless ... Espionage Act - two sides of the coin for Assange and Trump ... At last, someone convicted at Guantánamo of a real war crime ... Roger Fitch reports from Washington 

"Somewhere along his life path, his Saurian eye identified a need among a swath of Americans for nonsensical gibberish … In another era, Trump's true calling in life would be a travelling tentpole circus barker, hustling from town to town with an entourage of snake oil salesmen, other grifters, and assorted freakish animal and humanoid curiosities... that's entertainment, and as ever, it serves a nefarious purpose - diverting the crowd from the pickpockets" - Nina Burleigh

Reign of terror: The SCOTUS Six

Pickpockets still abound, some now legally-trained. The most successful work for the Federalist Society. Launched in 1982 by rightwing lawyers and their corporate masters, the well-funded Society soon gained entrée into judicial appointment consultations under Republican presidents, displacing the despised establishment American Bar Association.

Their breakthrough came when a Republican Senate colluded with Donald Trump to appoint 234 Federalist Society-approved judges. The appointment of three of them to the supreme court gave the Federalist lawyers near-control of the court.

During the Reign of Terror, "Twelve Who Ruled" meant the revolutionary Comité de salut public, six of whom were lawyers. Perhaps "Six Who Would Rule" describes the Six "Republicans" (irony intended) now bludgeoning laws and the Constitution itself in their quest for governments tilted to corporations, Christian nationalism and cultural revisionism.

On the last day of its October term, The Six announced an astonishing decision, one of the worst in the court's 235-year history. In this decision of recklessness and folly, the principal beneficiary has been the convicted felon Donald Trump. More here. 

The Six gave the president unlimited powers to commit crimes (including murder), perhaps assuming that, in light of successful voter disenfranchisement, no Democrat will in future succeed in becoming king (sorry, president).

Maybe just to protect themselves, in the closing days of its term, the court decided Snyder v US (more here), purporting to distinguish "gratuities" from "bribes" in ways tailor-made to exonerate two of the court's own members, who have received "gratuities" totalling millions of dollars. Law Prof Eric Segall sees supreme corruption.

Fischer v US concerned the January 6 prosecutions in Washington, including Trump's. Of the 19-odd DC District Court judges who have been hearing these cases, all but one (a Trump appointee) found that 18 USC 1512, adopted in the wake of the Enron accounting scandal, applied to some acts of the Capitol rioters. 

In Fischer, the court ruled that Section 1512(c)(2), corruptly obstructing an official proceeding, did not apply outside the context of impairing evidence, and thus was inapplicable to rioters disrupting the Senate's Electoral Count. January 6 convictions won't, however, be greatly affected. 

The longstanding "Chevron deference" for regulatory decisions of administrative agencies is gone, thanks to Loper v Raimondo. Scotusblog has more. In a parallel move against prevailing administrative law, SEC v Jarkesy, the court struck out an SEC administrative court established under the 2010 Dodd-Frank Act, because it denied defendants a jury trial on civilian fines. This could affect other administrative courts, e.g, the NLRB.

In the Grants Pass case, Justice Gorsuch wrote a cold and horrifying opinion allowing an Oregon City's  criminalisation of "public camping" as applied to the homeless. 

Gorsuch: horrifying

The court also continued to unwind environmental protections this term. 

Here's a rundown on the damage done by what's being called the Trump Docket.

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The Justice Department has filed two contentious espionage cases in recent years. One, against an Australian citizen, is novel, an actual Trumped-up crime. The other, filed by a special counsel appointed under President Biden, is against Trump himself. 

Unlike Julian Assange's "offences", the charges against Donald Trump fit perfectly: it's a straightforward prosecution for wilfully and knowingly taking and concealing classified documents, misusing them and obstructing their retrieval. 

The Espionage Act, 18 USC 793, used in both prosecutions, does not say the accused must be working with another country to deliberately harm the US, only that it is a crime to have ...

"... unauthorized possession of, access to, or control over [information] ... the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation," and to wilfully retain it while failing "to deliver it to the officer or employee of the United States entitled to receive it."

Prosecutors are not required to prove that the defendant knew the information could harm "national security", only that any reasonable person would understand the harm it could do. It's not necessary to prove actual damage or even that the documents were classified, only that they relate to US national security.

The Espionage Act was first enacted in 1917 during WWI and was initially used quite oppressively. Modern prosecutions, however, have typically been of spies and careless public or former public officials, and recently, whistleblowers.

Until Julian Assange, the Act was never used against a journalist, and Obama declined to use it against the Australian. In fact, Obama commuted the sentence of Assange's alleged co-conspirator, convicted of leaking the same information. 

Nevertheless, the experiences of Assange and Trump have greatly diverged. Whereas Julian Assange was harassed and persecuted for years before indictment, Donald Trump luckily landed in the court of a judge he appointed, Aileen Cannon, who appears to be auditioning for Trump's next supreme court vacancy.

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Assange: might have beaten the Espionage rap

The conviction of a journalist under the Espionage Act was only certain with a guilty plea; it's not clear the charges would have been upheld in a US court had extradition proceeded. Like Guantánamo, only the use of plea deals with no appeal allows legally-dubious charges to stand. 

In fact, the similarity of the Assange and David Hicks prosecutions is striking. Applying the Espionage Act to Assange's journalism is reminiscent of David Hicks' "war crime" conviction for the invented (later invalidated) "material support for terrorism". 

Sadly, the Pentagon continues its attempts, through guilty pleas, to convert civilian offences (terrorism and conspiracy) into "war" crimes: US-created offences unknown to international huminatarian law and thus not part of the "law of nations" as required by the US Constitution. The inchoate offence of "conspiracy" is one such. 

In 2014, a military commission charged Abd al-Hadi with various charges and in June 2024 accepted his guilty plea for certain ones, including "conspiracy". Al-Hadi did commit war crimes in an international conflict, and he's accountable for those recognised under IHL, but not for the American-concocted "conspiracy".

Al-Hadi's lawyers managed to strip out of his guilty plea all charges except three valid ones: treachery or perfidy; attacking protected property; and attacking civilian objects, plus the invalid conspiracy. 

Meanwhile, Al-Hadi has made history: he seems to be the only person ever convicted at Guantánamo for committing actual, internationally-recognised war crimes that occurred during an international conflict involving the US.