THE GREATEST DANGER

One of the greatest dangers to our republic is the political corruption of our Judiciary, the third branch of government spelled out in our Constitution. 

The truth is our problem began in 1803, just 22 years after our founding document was confirmed by the colonies. In a case that first-year law students study the first week of the semester, Marbury v Madison, Chief Justice John Marshall wrote a decision in which he concluded that the courts had the power to invalidate statutes enacted by Congress and signed by the President.

For better or worse the concept, known as "judicial review," has prevailed to this day. It gives the Article III courts enormous power over the Article I legislature and the Article II executive.

Over the years we have seen the doctrine's benefits and deficits. Marbury was pure politics, a fight between John Adams' Federalists (now known as Republicans) and Thomas Jefferson's Republicans (now known as Democrats.) Nothing in the Constitution explicitly gave courts the power of judicial review, and, ironically the decision could not be justified under the notion of ""originality" espoused by the current Republican conservative members of the Supreme Court. 

One of the products of Marbury is the totally awful, and I believe totally dishonest decision by the current Supreme Court in Dobbs, which stripped away the rights of women to control their reproductive functions. 

Another example of the harm caused by the politicization of the judiciary is the ongoing brouhaha initiated by Trump-appointed District Judge Cannon in Florida, in respect of the documents (classified and non-classified) stolen by Donald Trump when he departed the White House in January 2021.

Major events in that case occur daily. If nothing else, the judge is consistent: her daily decisions are intellectually dishonest and a disgrace to our judiciary.Her rulings are every bit as dishonest as justice Alito's decision in Dobbs and further detracts from any respect formerly had for our courts.

But I digress. The real purpose of this post is to publish a link to an interview I gave recently in Jim Zirin's fascinating weekly show on the television station of the City University of New York. The subject of our talk covered the range of prosecutorial possibilities and problems respecting Donald Trump.

The interview will be broadcast on CUNYTV, which on Spectrum and Optimum can be found on channel 75 and on Verizon FiOS on channel 30. But the easiest way to get convenient access is to watch it on YouTube. Click here: link.

Seeing as how the interview occurred earlier this week, the Cannon rulings are ancient history by now, but the principles Jim and I discussed still prevail: we need to repair the judiciary, and we need to indict Donald Trump.

A bientôt.

................................

There is no fixed schedule for these posts. If you would like to receive a notice of each new posting, please fill out the form at <"http://eepurl.com/gf7fS9">.

TOLDYA SO!

  I am more than a little bit encouraged by the Department of Justice's reaction to that off-the-wall decision by the Florida judge.  

But my piece today is about a little bit of history and involves the muscle strain of figuring out how to pat myself on the back. There are two parts to this post. Bear with me. 

Part One:  Here is a blog I posted more than three years ago –June 28 2019 to be precise:

MOB RULE REDUX: THE OBERLIN COLLEGE SCANDAL

Once upon a time, Oberlin College was a proud institution. Its roots go back to when "Northwest Territories" referred not to the State of Washington, but the newly declared State of Ohio. Soon after its founding, Oberlin became a key station in the underground railroad, helping escaped Virginia slaves on their way to Canada. And since that time, it has promoted itself as a "liberal" school,  admitting women and black students long before other institutions did so.

But the bacteria that has infected the eastern universities has spread westward, and like the measles anti-vaxxers, Oberlin's leadership has shut doors and windows to the outside world. Notions of a liberal democracy that makes decisions on the basis of facts, reason, law, and morality, have given way to a simpler standard: "What does the mob want?"

The Facts:

The school's ultra-left student body is the epitome of what some see as a current wave of spoiled children. The students have made numerous demands on the administration, asserting, inter alia, they have suffered microaggressions in connection with the "cultural appropriation" offences of the school's cafeteria, by virtue of menus that included sushi and other Asian foods.  The Black Student Association "Demanded" their own "safe space" room where they could recover.  The Musical College students "Demanded" the promotion of their favored teacher, etc., etc. There were a total of 50 demands in a recent student petition. You get the picture.

Immediately adjacent to the college boundaries is a 100+ yr.-old general store, Gibson's, selling baked goods, groceries, including alcohol. Three black students (some 15% of Oberlin's 2,000 students are people of color) entered the store, and one of them offered counterfeit I.D. to prove he was old enough to buy a bottle of wine.  When the clerk not only rejected the document, but noticed two other bottles of wine tucked beneath student's coat, the shoplifter threw down the bottles and fled with his companions. The clerk (a Gibson grandson) pursued and tackled the offender. When the cops arrived, the young Gibson was on the ground being kicked and punched by the three students, who were arrested and charged with assault and theft. They later pleaded guilty.

Nevertheless, some 200 students demonstrated in front of and on the property of the Gibson's store. They accused the store of racial bias and abusing the civil rights of the thieves. The mob urged a boycott, and demanded the college abrogate its long-standing practice of purchasing foodstuffs from Gibson's.

How did the college respond to these demands?

The college:

i) via its Chief of Staff of the College Administration, and other employees, not only attended and participated in the demonstration, but handed out flyers falsely accusing the store of racial bias and a history of racial profiling,

ii) distributed gloves, mittens, and warm drinks to the demonstrators because "their hands were cold,''

iii) had a flyer accusing Gibson's of race bias posted in the Administration building,

  

iv) cut off its food purchases from the store, (emails revealed the administration feared students would "have a tantrum" if the school didn't do that),

v) publicly criticized Gibson’s for pressing charges against its students,

vi) announced it would not end its economic boycott of the store unless and until the store dropped the criminal charges against the students,

vii) persisted in the boycott even after the three shoplifters admitted their guilt and agreed their apprehension had nothing to do with race. (Fact; in recent years, Gibson’s had physically detained 40 shoplifters. Six were black, thirty four were white, about the same proportion of the local population.)  But the guilty pleas, said a school official, "doesn't change a damn thing." 

viii) demanded that instead of detaining the thieves, Gibson's should just have notified school personnel. (A student journalist wrote that shoplifting had become "a rite of passage" at Oberlin, and noted archly that the suggestion the store simply notify the college of thefts was simply the establishment of a "one free-shoplifting pass for each student.) A recent Oberlin graduate with a different view defended the student body by proclaiming how much good they were doing for the town merchants. Specifically he pointed to the students patronizing a local bar and  a new tattoo parlor.

The demonstrations, the baseless defamation, the school boycott, the trespasses,  all inflicted severe economic damage to Gibson's. Its revenues were halved, and it sued Oberlin for libel, interference with business relations, and host of other torts sanctioned by Ohio state law. The Gibson plaintiffs relied on an Ohio appellate court case that made it clear that a defendant who "participates in or aids and abets another to publish a defamation" is liable as well as the publisher of the libel.

The trial judge struggled for a month to settle the case. No soap. Ya can't make this stuff up; The school blamed Gibson's for the conflict, and actually issued this statement:

Gibson bakery’s archaic chase-and-detain policy regarding suspected shoplifters was the catalyst for the protests. The guilt or innocence of the students is irrelevant to both the root cause of the protests and this litigation.”

After a six-week trial, the jury returned a verdict in favor of Gibson’s for 11 million dollars. And that was just the first of two trials - - to determine if there was liability, and if so, to assess actual economic harm. At a subsequent two-day hearing to assess punitive damages, plaintiff's lawyer asked for an additional $22 million.  The jury deliberated three hours and came back with an award of $33 million! (Pursuant to Ohio law, the punitive damages will likely be reduced to $22 million, leaving a total of $33 million instead if $44 million.)

Did the First Amendment Fundamentalists scream? What, you missed the anguished cries about "double-barreled violations of the First Amendment?"  Doncha love the academic view of life?

Is this jury award vulnerable to appellate attack? Sure it is. Seventy percent of libel awards are overturned. Was this jury offended by the snotty, superior, anti-fact attitude of the college administration? Sure it was. Can you blame them?

Should Oberlin climb down off its high horse, eat some crow, (block that metaphor!) and settle this case? Of course it should.  Will it? I dunno. Oberlin's president issued this post-verdict statement to its alums:

 Let me be absolutely clear: This is not the final outcome. This is, in fact, just one step along the way of what may turn out to be a lengthy and complex legal process."

 Would you send your child to that school?

A bientot.

....................................

As my regular readers know, there is no fixed schedule for these posts. If you want a notice of each new posting, send me an email and I will add you to the notice list.  mlondon34@gmail.com

For more details on my personal experience in trying (and winning) a libel case, check out  my memoir, The Client Decides, available at Amazon and on Kindle.

.........................

Part Two of this post is a headline from the front page of today's New York Times: 

"Oberlin Will Pay $36 Million to Bakery Over Racism Claim"

Good to see the court system doing justice every now and then. 

Now I can't wait to see the Great Grifter get what's coming to him.

A bientôt!

.................................................

There is no fixed schedule for these posts. If you would like to receive a notice of each new posting, please fill out the form at <"http://eepurl.com/gf7fS9">.

THERE IS MORE THAN ONE WAY TO DESTROY A DEMOCRACY

Let me count the ways:

One: Seize the government by force. A non–fictional example might be to cause a riotous invasion the Capitol building while its lawful occupants were engaged in the process of certifying the new democratically elected leadership of the nation.

Two: Seize control of one of the two non-executive branches of our government, the legislature or the judiciary. The advantages of these methods are they are non-violent, and they are, to some extent, co-reliant.

 

(a) One can gain control of the legislature in a republic by putting unprincipled partisans in charge of counting the ballots and certifying the result in each state, That way, one can reliably elect pre-chosen candidates, who can then elect pre-chosen Chief Executives, and confirm appropriately partisan judges.

(b) Even with legitimately-acquired control of the executive and the Senate, one can control the judiciary by appointing and confirming injudicious partisans who ignore the rule of law and support the politicians who appointed them. The entire process becomes a feedback loop. If the scheme is managed by officials who choose power over loyalty to Constitutional values, authoritarianism is the result and the great experiment fostered by the likes of Hamilton, Jefferson, and Madison crashes in ruins.

A scary and depressing symptom of the development of the foregoing scenario is the unspeakable decision by a Florida district judge in the matter of the federal investigation of Donald Trump's illegal possession of classified and non-classified government documents. In an unprecedented order, Florida District Judge Cannon, who was appointed by Donald Trump in the waning days of his administration, temporarily enjoined prosecutors from using in that investigation, the government-owned documents taken from Trump's home and office in the execution of a lawful search warrant. 

It is not my intention to detail here each of the legally defective and non-sensible conclusions contained in Judge Cannon's order. You can read the details anywhere in the responsible press. The almost universal judgment of the legal community is that her 24-page decision is "off-the-wall." I agree.

But the degree of permanent damage to the rule of law is in the offing. Given the just plain "wrongness" of Cannon's unprecedented order, one would expect that it would be the knee-jerk decision of the Department of Justice to go immediately to the Circuit Court of Appeals. There are any number of grounds for an instant stay and ultimate reversal. But now we come to the true test of whether the rule of law, so vital to our democracy, has survived the Trump presidency and the McConnell senate leadership.

The 11th circuit, which has exclusive jurisdiction over the Florida District Courts, consists of 11 judges, six of whom were appointed by Donald Trump. It is a sad day for our democracy that Merrick Garland and his team, in deciding whether or not to take an immediate appeal,  even need consider that fact, but that is our current reality. 

Woe is us.

Oh, on a less consequential matter, I gotta add this footnote. In a previous blog, I mentioned I had written an unpublished novel (VICE-POTUS, The Novel). I never thought it was prescient, but in one scene the vice president's lawyer makes a motion to enjoin a grand jury investigation of his client because of the government's alleged misconduct. The judge denies the motion to block the investigation with these words:

     "The motion is premature. The vice president has no standing to make this motion because he has not been injured. The grand jury has not indicted him, a jury has not convicted him, and the prospective damage he asserts is, at this time, entirely hypothetical."

It never occurred to me to send Judge Cannon a copy of my manuscript. 

A bientôt.

..........................................

There is no fixed schedule for these posts. If you would like to receive a notice of each new posting, please fill out the form at <"http://eepurl.com/gf7fS9">.

ABANDON SHIP, LAWYER STYLE

In a brilliant but-as-yet-unpublished novel (literary agents and publishers, call me at once!) about a criminal prosecution of the vice president of the United States, there is a scene in which our hero, --a lawyer, of course—is meeting with another client who is being investigated by the federal government for possible election fraud. The client expects a subpoena and is describing to his counsel the documents he plans to submit as his response. 

The lawyer interrupts him:

"Henry, I know I have explained to you that our communications are confidential, but at this point I need to say more. Let me tell you a story. Years ago I had a client who was suspected of being involved in an illegal price-fixing conspiracy and feared he was about to receive a grand jury subpoena. Before I could interrupt him. the client blurted out that to avoid incriminating himself, he had burned a number of written communications between him and his competitors.

 

“I explained to the client that I was now disqualified from representing him because when the time came for him to respond to a subpoena, and he gave me the remaining documents to submit to the government, I could not do so without revealing that this was not a full and complete subpoena response. And of course, I could not reveal that to the government because the information was obtained via a client confidence. So I had no choice but to withdraw and to suggest he get new counsel. What he told his new lawyer was up to him."

The incident reminds me of what a law school professor told our class in Criminal Law 101: "The first rule of being a successful criminal lawyer is, ‘Never let your client’s problem become your problem.’"

It is apparent that not all lawyers representing former president Donald Trump may have learned that rule.

Earlier this year, the feds, chafing under what they perceived as a lack of cooperation from the Trump team, served a subpoena on Trump, seeking the return of classified documents illegally removed from the White House and transferred to his residence and office at Mar-a-Lago,  In connection with that matter, Trump was represented by lawyers named Christina Bobb and Evan Corcoran. Bobb, who no doubt relished being appointed by her distinguished client to the supreme position of his "Custodian of Documents" (a.k.a. ""Chief Javelin Catcher,”) responded to the subpoena on Trump's behalf by giving the government a small batch of documents, along with her letter assuring the government that, based on a “diligent search,” Trump had no more classified documents.

Her partner Corcoran dug the hole a little deeper by telling the government that all classified documents were in storage boxes, those boxes had been searched and the handful of classified records found there had been turned over to the feds.

Both statements were false and materially misleading. 

i) All classified documents had not been turned over to the government in response to the subpoena, ii) there had not been a “diligent search,” and iii) not all the classified documents remaining at Mara-a-Lago were in the storage boxes. Indeed the FBI agents executing the search warrant found highly classified documents in Trump’s desk.

As we now know, the government had not been taken in by the Bobb and Corcoran statements. They knew better. They not only sniffed it out by reason of prior uncooperative conduct by the Trump team, but as the government explained in its submission to the court, there were "several sources" that indicated to them that the Trump team's written and oral assurances about subpoena compliance were false.

What a coincidence. Just a week before the federal government filed for its warrant, a different team of Trump lawyers responded to a subpoena issued by a New York State Supreme Court judge in a matter initiated by the NY Attorney General, who was looking into possible tax and other frauds perpetrated by the Trump organization. 

The respondent at first fought the subpoena. It lost, and when the judge held the Trump organization in contempt, Trump folded. His team ultimately submitted affidavits (by a different set of lawyers) who swore they had personally “diligently searched each and every room of Trump's private residence [and office] at Mara-a-Largo, including all desks, drawers, nightstands, dressers, closets, etc." 

While this group of lawyers was not looking for federally classified material, their team, which consisted of at least five lawyers from their New Jersey law firm, plus Trump’s “executive assistants”, either certainly saw all of the classified material which the feds found in Trump's desk, or lied about the diligence of their search. Are they (or some of them) now also in the soup?  Are they part of the “several. sources” who ratted out Trump?  I dunno. 

One thing I do know is that there is steady growth of the list of Trump lawyers who have been disbarred, received target letters, have already been indicted, or are on the waiting list. In any event, ya know how bad things are when the lawyers need lawyers.

So there is now a strong likelihood that there exists a group of lawyers and "Trump executive assistants" who knew that by concealing government documents, (classified and non-classified,} Donald Trump i) obstructed justice by failure to comply with a federal subpoena, and ii) was guilty of violating the Espionage Act and the other criminal statutes listed in the search warrant. Some of these people may be indicted, some may make deals, and some are innocent but knowledgeable witnesses.

What are the names of these people? We probably won't learn their identities until the prosecution publishes its witness list in advance of Trump's trial.

A bientot.

……………………………… 

There is no fixed schedule for these posts. If you would like to receive a notice of each new posting, please fill out the form at <"http://eepurl.com/gf7fS9">.