CIVIL WAR II ?

THE GOVERNOR OF TEXAS HAS ANNOUNCED THAT HE WILL NOT COMPLY WITH THE SUPREME COURT’S RULING THAT THE NATIONAL GOVERNMENT HAS THE LAST WORD WITH RESPECT TO THE IMMIGRATION PROCESS. 

THE STATE OF TEXAS HAS ERECTED RAZORWIRE BARRIERS OVER AREAS IT DOES NOT RIGHTLY CONTROL AND THE RECENT RULING BY THE SUPREME COURT AUTHORIZING THE FEDERAL GOVERNMENT TO REMOVE THOSE BARRIERS HAS ELICITED AN UNAMBIGUOUS RESPONSE FROM GOVERNOR ABBOTT. HE HAS TOLD THE COURT, IN EFFECT “GO STUFF IT,” AND NOT ONLY SENT ARMED TEXAS OFFICERS TO PROTECT AND DEFEND HIS RAZORWIRE BARRIER, BUT SUGGESTED OTHER BORDER STATES SEND TROOPS TO SUPPORT THE TEXANS.

Meanwhile, the Republicans in the House refuse to cooperate in passing an immigration bill that might alleviate some, if not much, of our current immigration mess. Why? More un-American activities: Republican Senator Mitt Romney has revealed that candidate Trump has instructed the Republican House leadership not to cooperate on any immigration bill, lest President Biden get some credit for it in the forthcoming election.

On a brighter note, my alma mater law firm Paul, Weiss, Rifkind, Wharton & Garrison has commenced a pro bono suit on behalf of the city of New York against 17 bus companies that have participated in Abbott’s ugly scheme to use immigrants as political chess pieces. Abbott has loaded them onto chartered busses and dumped them in or about New York City.

The Paul, Weiss team unearthed an 1831 New York State statute making it a misdemeanor for anyone  

“to cause to be brought …any poor or indigent person from any place without this state, into any county or town within it, and there to leave… such person with intent to make such county or town chargeable with the support of such pauper… ”

The statute was upgraded in 1942 to read:

“Any person who knowingly … causes to be brought a needy person from out of the state into this state, for the purpose of making him a public charge… shall be obligated to convey such person out of the state or to support him at his own expense.”

At the beginning of this year, providing care for some 33,600 people transported by the 17 bus companies hired by the Texas governor has cost the city $708 million dollars.

Subsequent to the filing of the suit, the flow of immigrants into the city has been reduced somewhat, though it is not clear whether that is the result of the litigation or the weather. In any event, Bravo to the PW lawyers who dug up the statutes and framed the legal attack,

The question remains: if Texas does not comply with a decree from the Supreme Court of the United States, what is the likelihood the bus companies chartered by the state of Texas will readily comply with a decree from the Supreme Court of the State New York?

The federal Supremes have brought this disrespect upon themselves. They have disgraced the court by placing politics and greed above law and ethics. There is only one solution: as I have preached over and over again: if we can hold the country together until January 2025, and we have a Democratic House, Senate, and President, then we can promptly add four justices to the Supreme Court and get back on the road to the Democracy foreseen by our Founding Fathers.

I can't close this piece without repeating here my favorite line of the week.  In Heather Cox Richardson's recent piece she quotes Joyce White Vance:

"How do you explain to your kids that you’re going to give your vote in the presidential race to a man who forced his fingers into a woman’s vagina and then lied about it and about her, and exposed her to public ridicule and harm?”

A bientot.

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A SUPREME TEST

 Today's paper is chock full of details reporting on the Trump claim in the District of Columbia Court of Appeals that he is immune from criminal prosecution for his conduct while president because he was not convicted by the Senate of any impeachment charge brought by the House. ( A victory on that defense would have a serious effect on all the criminal claims brought against Trump by Jack Smith, as well as those pending in the state court of Georgia.)

The basis for the immunity defense lies in Article I, section 3 of the Constitution:

Judgment in cases of impeachment shall not extend further than to removal from office, … but the party convicted shall nevertheless be liable and subject to indictment, trial, judgment and punishment, according to law.”

I am familiar with the defensive claim because 50 years ago we raised it on behalf of sitting Vice President, Spiro, T Agnew. As I wrote in my memoir:*

"That paragraph certainly suggests that the party convicted by the Senate after impeachment by the House, could then be "subject to indictment…" That's a pretty powerful argument that the criminal indictment comes only after impeachment, but it's hardly conclusive. The word "then" is nowhere found in that clause of the Constitution, though we argued that it was implied.”

Based on that argument, we moved the court for a dismissal of the tax and bribery indictment of the sitting vice president. The government’s responsive brief, signed by Solicitor General Robert Bork, described the defense as "momentous and difficult” but nevertheless concluded that the Constitutional clause applied only to a sitting president, and not to a vice president, though they had both been elected on the same ticket, and received the same number of electoral votes. 

Bork’s rationale, in effect, adds to the overwhelming arguments against the Trump immunity claim. Bork concluded that a sitting president could not be indicted because of the weight of duties he had in managing the country’s national and international affairs whereas a sitting vice president had no such responsibilities, and therefore could be indicted, even though he had not been impeached.

 Bork was clearly wrong in suggesting a sitting President had a Constitutional immunity defense, but even applying his over-generous rationale to the current matter makes it plain that a former president, who obviously has no duties in the management of the country’s affairs, has no immunity whatsoever.

Our Agnew motion was never decided by a court. The government had other problems regarding serious leaks which led to a court decision giving us the right to depose government officials and members of the press. The pressure on Attorney General Elliot Richardson was so great that he agreed to a plea deal in which the vice president pleaded nolo contendere, resigned, and was guaranteed that the sentence would be a small fine.

Whatever its strength or weakness, the Agnew defensive immunity claim was about substance. The current Trump immunity defense is not about substance, but is about delay. I expect the District of Columbia Court of Appeals to make a prompt decision. I expect Trump then to seek an en banc hearing, which I expect will be promptly denied. In the end, the matter, will go to the Supremes and the real question there is how long will it take them, one way or another, to affirm the District Court decision and allow Judge Chutkan to try the case? 

Will the trial go forward before November 5, 2024? Or will the Supremes kick the can down the road and disgrace themselves once again?

A bientot.

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*My memoir is entitled “The Client Decides” and is available on
Amazon and Kindle.

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