22 May 2018


What does the Trump administration's immigration policies have to do with sports betting?  No, I am not talking about Dominican baseball players, I am talking about the Department of Justice's war on so-called "sanctuary cities", i.e., those states, cities, and towns that refuse to cooperate with federal authorities seeking the arrest and deportation of undocumented aliens within their borders.

The President urges that a local government's refusal to turn over to federal agents the names and locations of undocumented persons, either in or out of jail, is "obstruction of justice." And so the federal government has sued the State of California to strike down its "sanctuary law," and require state officials to cooperate with immigration authorities.

There are more than 200 red and blue sanctuary cities and towns -- more than a dozen in New Jersey and New York -- (and there seven entire sanctuary states) but the Department of Justice has sued only California. Attorney General Sessions did not say whether the decision to single out California had anything to do with the fact that the state permitted more than three million illegal aliens to vote in the 2016 election, all of whom voted for Hillary Clinton.  But for that, the President would have won the popular vote as well as the electoral college vote. That must be true; the President of the United States said so.

The most important element of the California statute being challenged in the federal lawsuit is the section that bars all state law enforcement personnel from cooperating with federal immigration police, except with respect to those aliens who have committed serious crimes.

That, argues the feds, is a violation of the Supremacy Clause of the Constitution, which basically says that if there is a conflict between a state law and a federal law, the latter triumphs. The California statute, says the DOJ, interferes with the federal immigration enforcement program, which has pre-empted the field.

But while that litigation is pending in the District Court in California, a conservative majority of the Supreme Court has just published a decision in another case that will, I suggest, dramatically affect the outcome of the California case. 

In Murphy v. NCAA, the Court upheld a New Jersey challenge to a federal anti-sports-betting statute. The rationale of that opinion seriously hobbles the DOJ's lawsuit against California.

By a vote of 7-2, the Court struck down the federal statute that barred all but a few grandfathered states from authorizing sports betting. The Court rejected the government's supremacy and pre-emption arguments, and held the federal statute was unconstitutional because Congress has no power tell the states what to do!  In an opinion written by Mr. Justice Alito, and joined by all the conservative members of the Court, plus two from the liberal wing, the Court held that the Constitution "confers upon Congress the right and the power to regulate individuals, not states" and Congress "may not command the states' officers ... to enforce a federal regulatory program. ...  Congress ...  may not conscript state governments as its agents."

Basically, the majority said the Tenth Amendment sends a clear "anti-commandeering " message to the national government: "The legislative powers of Congress are not unlimited ... .  All other legislative power is reserved to the states, as the Tenth Amendment confirms. Conspicuously absent from the list of powers given to Congress is the power to issue direct orders to the governments of the states."

In effect, the Court is telling Congress and the Executive branch, "If you guys want to pass a law, then you alone own it. You must pay for it and enforce it yourselves. You have no right to pass on the costs and responsibility to the states.  You cannot command the states to wash your dirty dishes. The Constitutional notion of dual sovereignty prevents that."

Bottom line, the feds cannot command New Jersey to ban sports betting, and I suggest that means the feds cannot command California or its officers to cooperate with ICE.

New Jersey wins the Daily Double. You can bet on it.

A bientot.

14 May 2018


Draft Jury Charge:

United States of America v.
Donald Trump, aka "Old Bone Spur," aka "Crocodile-in-Chief," aka "Big Crock,"
Donald Trump Jr., aka "Little Crock,"
Jared Kushner, aka "Baby Face," aka "Little Javanka," aka "The Disposable One,''
Paul Manafort, aka the  "Laundryman,"
Unindicted co-conspiring Swamp Creatures 1-20

Ladies and Gentlemen of the jury:  It is customary for judges to charge the jury after all the evidence is in. But these are exceptional times, and they require exceptional flexibility. I have therefore decided to give you an interim charge, and may deliver one or more additional interim charges as this case progresses. I estimate that we are about half way through.

There are two elements you must integrate in reaching your ultimate verdict: the law, and the facts.
The legal principles embedded in this charge are the foundation stones of Article III of our Constitution. I will explain them to you. You must accept them.

The determination of the facts is exclusively your province, but I charge you that you may focus only on real facts, not "alternative" ones, "possible" ones, or "could be" ones. Only old fashioned actual facts.

In the process of finding the facts and applying them to the law, your conclusions may not be based on political, religious, or any other kind of prejudice or predisposition. It may be difficult for some to abide by this rule. This court is not unaware of the bitter political divisions in our country today, but it is vital for the survival of our democracy that the rule of law prevail. That can happen only if you demonstrate that this jury is the conscience at the core of our Republic.

There are a number of counts to this indictment, and this interim charge will deal only with those related to the accusations against these defendants respecting the charge of foreign interference with our 2016 election. As I have indicated, I may deal with the obstruction of justice, campaign law, tax, money laundering, and other categories of charged crimes in a later instruction.

In the matter of Russia's interference with the election, each defendant is charged with:
1. Conspiracy to defraud the United States of America,
2. Aiding and abetting the commission of a felony, and
3. Misprision of felony.

The Facts:

While finding the facts is your province, I exercise my discretion to remind you of the facts that have been elicited thus far.

·     As far back as 1986, Trump was keenly interested in getting Russian government approval of a Trump Hotel across the street from the Kremlin. The project never materialized.
·     In a 1996 and 1997, at news conferences in Moscow and New York, Trump announced the plans for a "Trump International Complex" in Moscow that would include skyscrapers and hotels. He said he was working with the Mayor of Moscow, Luri Luzhkov, to get the necessary approvals for the project. Trump said, "We have an understanding."
·     As to Luzhkov, a cable sent by the American Ambassador to Russia described him as follows: "Corruption in Moscow remains pervasive with Luzhkov at the top of the pyramid. He oversees a system in which it appears that almost everyone at every level is involved in some form of corruption or criminal behavior."
·     Despite the failure of these projects, in 2008,Trump made a speech in Moscow in which he revealed plans to build condos in Moscow and other Russian cities.
·     Russian investment saved many Trump projects from the economic meltdown of 2008. In fact, Donald Jr. admitted: "Russians make a pretty disproportionate cross-section of our assets.... We see a lot of money pouring in from Russia."
·     Trump visited Russia in 2013, at which time, RT, the Russian propaganda news agency, reported his statement that he had plans to do business in Russia and was in talks with several Russian companies to build a Moscow skyscraper. Trump made a speech at a dinner in his honor and said, "Trump-Tower Moscow is next!" (His host was one Aras Agalarov. Remember that name.)
·     In 2015 and 2016, Trump was still working on the possibility of a Trump building in Moscow. At that time, Trump's personal attorney, Michael Cohen, was an Executive Vice President of the Trump Organization. Cohen was communicating with one Felix Sater, a Russian born U.S. citizen, who had helped procure Russian financing of Trump Soho. Sater and Cohen were working to get Russian approval for the Trump-Moscow project, and Cohen received an email from Sater which said, in part, "We will get this done, I will get Putin on this program and we will get Donald elected," and "I know how to play it ... our boy can become President of the USA and we can engineer it.  I will get all of Putin's team to buy in on this." 
·     No correspondence exists rejecting any part of Sater’s plan. To the contrary, what does exist is an email from Cohen to Putin's personal assistant,  seeking his help in moving the Trump project forward, and informing the Russian official that Trump had signed a letter of intent.
·     Nevertheless, during the campaign, Trump repeatedly said his organization "had never had any real estate holdings or interests in Russia," and that he had "nothing to do with Russia.''
·      You, as jurors, are the sole determiners of the credibility of witnesses in this trial. If you find a witness has willfully given false testimony on any subject in this trial, you are free to disbelieve and disregard his testimony on any and all subjects.
·     During the 2016 campaign, Donald Trump often said positive things about Putin, that he met him, he was a nice guy, and when it was put to him that Putin was a killer, Trump defended Putin by saying, "Well, we kill people too." He praised Putin as being a "strong leader."
·     On June 3, 2016, Donald Trump Jr. received an email from an agent for Aras Agalarov's son. (I told you to keep Aras's name in the forefront of your memory!) The email said Russia's Crown Prosecutor told Aras Agalarov that morning that Russia could provide Trump with "information that would incriminate Hillary... . This is obviously very high-level and sensitive information but is part of Russia and its government's support for Trump."
·      Trump Jr. neither repulsed the probe, nor reported it  to the FBI. He responded, "I love it."
·     As a result of that and subsequent communications, Donald Jr., Jared Kushner, and campaign chairman Manafort met with a Russian lawyer who was an informant for Putin's Crown Prosecutor.
·     The meeting was held at Trump Tower. While Trump Sr. says he was not made aware of the meeting at that time, Trump's close advisor and later White House official Bannon said, "There is zero chance that Donald Jr. did not walk these jumos up to his father's office on the 26th floor." The Trump advisor called that meeting "treasonous" and "unpatriotic."
·     The participants kept the meeting secret. When the fact of the meeting was later revealed in the press, Donald Jr. lied about it, said it was about orphans, and President Trump, along with his communications chief, Hope Hicks, prepared and issued a public statement to that effect.
·     The President knew his statement was a lie. Before  it was issued, he, Hicks, and the spokesman for Trump's legal team, Mark Corallo, had a telephone conversation in which Corallo advised against issuing the statement because the emails setting up the meeting made clear the real purpose of the meeting was to trash Hillary and help Trump win the election, and when those emails got out, the President would be exposed as a liar. Hicks replied, "Don't worry, those emails won't get out." Trump did not dispute Hicks. Corallo, however, fearing involvement in an obstruction conspiracy, told them to talk to their lawyers, ended the conversation, wrote a contemporaneous memo, and resigned.
·     When Donald Jr. learned the New York Times was about to publish the emails, he published them himself.
·     The Russians did, in fact, interfere in the election in favor of Donald Trump, and when President-elect Trump was so informed by the U.S. intelligence services, his only reaction was "How can we spin this?" As President, he gave no orders to our intel services to do anything about the Russian interference.
·     There is also a news report from the McClatchy news service, quoting several unnamed sources, that Cohen attended a 2016 meeting in Prague with Russian officials during which stealing Clinton and Democratic Party emails was the subject of conversation.
·     Trump acolyte Roger Stone made a public statement indicating Democratic Chairman Podesta would soon be "in the barrel." The next day, Wikileaks published stolen Podesta emails, that were harmful to the Democrats. U.S. intelligence services say those emails were obtained by a Russian operative.  RT then paid to plug the emails on Facebook.
·     There is a great deal of evidence of Trump team contact with Russia during the campaign: I have already mentioned Donald Jr, Kushner, Manafort. And there is also Page, Gates, Papadopoulos, as well as Cohen.
·     Subsequent to the election, Trump appointees met with Russian officials before the inauguration, but lied about it to Congress (Sessions) and to the FBI (Flynn.)
·     Subsequent to the inauguration, Congress voted for sanctions against Russia for its interference with our election. The vote was almost unanimous --only five congressmen did not vote for the bill. President Trump nevertheless refused to apply the sanctions, saying that in his opinion "they were not necessary."
·     Subsequent to his inauguration President Trump asked the head of the FBI to "go easy" on Flynn, who had lied to the FBI about his visit to the Russian Ambassador.
·     Subsequent to his inauguration President Trump fired the head of the FBI because of his investigation into "the Russia thing" after having lied by saying it was for other reasons. He has since threatened, and once given an order, to fire Mueller as well.
·     We have fragmented testimony to date about a Russian oligarch's indirect payments to the President's personal lawyer, but that testimony is far from complete and you should hold that in abeyance for now.

Ladies and gentlemen of the Jury, a reminder, this is but a fraction of the evidence on but a fraction of the indictment, but to help you digest the rest of the information as it comes in during the balance of the trial, I will now inform you of some of the legal principles and how they relate to these facts.

There is no doubt the Russians interfered in the election. The question in this count is whether the defendants conspired to bring that about. Conspiracy is an agreement, an understanding. But it need not be in writing, or even set out in words. It can be an unspoken understanding. Because conspiracies are by nature characterized by secrecy, you may infer its existence by the circumstances of the case and the conduct of the parties. Actions speak louder than words. Presence at a meeting can be evidence of conspiratorial membership. Circumstantial evidence may be sufficient to convict. The understanding may be tacit. A verbal expression of the understanding is not necessary. You can infer such an understanding by the conduct of the parties. For example, if a meeting occurred, and a party kept it a secret and later lied about it, you may infer that party did so because he realized the truth about the meeting would incriminate him as a conspirator. Use your common sense.

To establish a criminal conspiracy the government must prove an overt act that advances the purpose of the conspiracy. But that act can be legal on its face, and still be criminal in the circumstances of the case.  For example, lying about a meeting may not be a crime in some circumstances, but in others it may be part of a criminal conspiracy. Similarly, the filing a required report that fails to report attendance at a meeting when such a report is a legal requirement may be an overt act. The same is true of attending a meeting. 
All members of the conspiracy may be convicted if he overt act was committed by only one member.

You may infer motive and intent from the acts and words of the defendants. For example, when a defendant is offered a plan to corrupt an election, and does not immediately firmly reject the plan, or report it to federal authorities, you may consider that failure as evidence of his desire to proceed with the plan. That is especially true if the defendant actually attends a meeting with a person who proposed the illegal scheme.

Aiding and Abetting:
Whoever aids, abets, or counsels, or induces or procures the commission of a crime is punishable for aiding and abetting. If you find a defendant did something to help make the crime succeed, that is aiding and abetting. Any affirmative conduct for bringing about the crime is a felony.

Misprision of Felony:
Anyone who i) knows a federal crime has been committed, and ii) fails to notify the appropriate federal authorities, and iii) deliberately takes affirmative steps to conceal that crime, is guilty of Misprision of felony.
In this case, items i) and ii) have been established beyond any doubt. As to item iii), whether a defendant has taken affirmative steps to conceal participation in that crime, consider all the facts, especially
the liability of the President, Donald Jr., and Hope Hicks, in publically lying about the content of the Trump Tower meeting with the Russians. Think too about the lies Trump told about his reasons for firing Comey, at a time when Trump had already decided to fire Comey because of "the Russia thing."


But not yet, children, cause we ain't nearly done yet. There is plenty more to come, so just chew on all of the above while the case develops. My faux judicial instincts tell me the best is yet to come.

N.B. And for new readers, if you haven't done so, check out my memoir, The Client Decides, available on Amazon and Kindle. Among the experiences I write about are my representation of Vice President Spiro Agnew and how his resignation saved the country from a constitutional crisis that is relevant to current issues. I also report on my litigation opposition to Donald Trump, my prosecution of the disbarment of Roy Cohn, my representation Jackie Onassis in a precedent-making privacy case, my representation of Planned Parenthood and physicians whose lives were threatened by anti-abortion extremists, and lots more.