Trump Games the Legal System but Will It Last?

Photo: AP/Alex Brandon, as published in CityWatch LA, 12/2/19.

Photo: AP/Alex Brandon, as published in CityWatch LA, 12/2/19.

by Sara Corcoran, Courts Monitor Publisher (Originally published in CityWatch LA, 12/2/19)

DC DISPATCH-In a normal judicial proceeding, when the Court speaks, it does so through orders. A court order is a command issued by a judge. If a judge orders you to appear for your speeding ticket hearing, failure to do so can result in a bench warrant or a default judgment. Penalties can also include jail time and fines. 

A subpoena, also an order of the court, can be issued by either of the parties to a civil action and, if approved by the judge, can require a person to produce documents or appear in person to provide testimony. And like most CityWatchers, when faced with a court order, a subpoenaed party would cooperate. For many of us that may mean paying a speeding ticket or getting current on child support, because the fear of being held in contempt of court or jailed would frighten most people, especially given their unfamiliarity with judicial process. 

Could you ever imagine being completely immune from any court order and/or subpoena? Life would be very different for most of us, if we thought that the arm of the law could in no way reach out and touch us. Yet, this is the position that Trump is claiming. He maintains that he is basically above the law and needs to answer to no one for his conduct. He also argues that anyone who works for him is similarly exempt — in effect, claiming absolute immunity from any legal process. We are witnessing in real-time what life is like for a person who believes this. In a country that promotes the rule of law, this monarchical conduct is simply not sustainable if Congress and the Courts are to have a role in running the country. 

In his recent book, “The Warning,” Anonymous notes President Trump’s familiarity with the legal system. When Trump became President, he had something like 3000 outstanding cases to his name. Anonymous recalls a conversation Trump had with a group of staffers when he paraphrased, “If you want to irritate someone threaten to sue, but if you really want to scare someone, file a lawsuit against them.” Trump is in the luxurious position of being able to rely on an army of Justice Department lawyers to bring his claims, however frivolous, and he no longer has the check of legal fees to control his conduct. He also has a group of lawyers led by Rudy Giuliani who work for him pro bono. Talk about carte blanche. No wonder he is tempted to abuse the American legal system. 

We have a litigious expert in the White House and while rules of civil procedure may not be his strength, he is very familiar with the benefits of delay. Trump is now for the first time in his life concerned with outcomes. Even if he loses in the lower courts, there is always a higher court to appeal to and more time to prevent the public from getting access to whatever information he is hiding. When coupled with his constant attacks on Twitter and in the press designed to undermine whatever position his opponents may take, Trump has manipulated the legal system to his ultimate advantage — likely assuring that he can defer any negative court decisions until after the election of 2020. 

There are a few risks on the horizon for the President, however. The litigation calling for him to produce his tax returns is advancing at a faster than expected pace and is already pending review by the Supreme Court. The Court could decide to take one of the cases and stall a resolution until next year, or it could decline to hear the cases, letting the lower courts’ decisions stand — in which case, the President could find himself suddenly exposed and forced to produce his taxes. 

The House Permanent Select Committee on Intelligence (HPSCI) has issued countless subpoenas for both testimony and documents. Trump has instructed his subordinates at the Department of State, the Department of Defense, the Department of Energy, and the Office of Management and Budget (OMB) not to cooperate in any way, citing an unfair impeachment process. This obstruction of Congress is unprecedented and exceeds even the Nixonian example. 

While the Democrats have managed to build a credible case working around the top layer, the testimony of Secretary of State Mike Pompeo and OMB Director Mick Mulvaney under oath, should under normal circumstances present the President’s defense that his conversation with President Zelensky of Ukraine was a proper exercise of his foreign affairs powers and not, as Congress is alleging, an improper request to a foreign government for Trump’s personal benefit in a political campaign. By refusing to cooperate in any fashion, it is logical that Congress would infer guilt from these parties’ obstruction. Congress has also wisely refused to engage with Trump in the courts in trying to enforce subpoenas against these parties. The Congressional figures pressing Trump’s indictment know his game and are pressing on without them. 

Even though Trump and his legal counsel expressly ordered parties not to appear before the HPSCI, it is amazing how many people have shown extraordinary courage to testify both secretly and in public notwithstanding the Presidential orders. The recent conviction of longtime Trump confidant Roger Stone for lying to Congress may also have served as a harbinger. When there is a conflict between the Congress and an Executive branch leadership that may be engaged in wrongdoing and covering up that wrongdoing, it may be prudent to comply with the subpoena. While the long arm of the law has not yet reached into the White House and taken hold of our President, it has caught up with some of those around him. If individuals very close to the President are now concerned that the blanket claim of executive privilege won’t protect them indefinitely, the President himself should be worried as well.

(Sara Corcoran writes DC Dispatch and covers the nation’s capital from Washington for CityWatch. She is the Publisher of the California and National Courts Monitors and contributes to Daily Koz and other important news publications.)

On The ABA Not Standing Up To A ‘Libel Bully’

Donald J. Trump at a campaign rally in Naples, Fla., on Sunday. Credit Eric Thayer for The New York Times

Donald J. Trump at a campaign rally in Naples, Fla., on Sunday. Credit Eric Thayer for The New York Times

Welcome to the age of the “libel bully.” The American Bar Association used the phrase to describe Republican presidential nominee Donald Trump in a report on his litigation, but knew better than to publish that report. The New York Times writes that “… the [ABA] report concluded that Mr. Trump was a “libel bully” who had filed many meritless suits attacking his opponents and had never won in court. But the bar association refused to publish the report, citing “the risk of the A.B.A. being sued by Mr. Trump.

The story notes that “..  internal communications, the bar association’s leadership, including its general counsel’s office and public relations staff, did not appear to dispute the report’s conclusions.
But James Dimos, the association’s deputy executive director, objected to the term ‘libel bully’ and other sharp language in the report, saying in an Oct. 19 email that the changes were needed to address ‘the legitimately held views of A.B.A. staff who are charged with managing the reputational and financial risk to the association.'”

Another quote from A.B.A. staff push-back: “While we do not believe that such a lawsuit has merit, it is certainly reasonable to attempt to reduce such a likelihood by removing inflammatory language that is unnecessary to further the article’s thesis,” Mr. Dimos wrote. “Honestly, it is the same advice members of the forum would provide to their own clients.”

Catch up on your irony here:

Latino Community Rallies Around Clinton

Sara Cocoran Warner, Founding Publisher of the California Courts Monitor

Sara Cocoran Warner, Founding Publisher of the California Courts Monitor

Read the latest Huffington Post article, “Latino Community Rallies Around Clinton,” by Courts Monitor Publisher, Sara Warner. Sara provides her thoughts about the importance of the Latino community to the presidential election, as well as the implications it has on the U.S. Supreme Court and issues like immigration and civil rights.

Yikes: ‘RBG’ Speaks Her Mind On Trump, May Disqualify Herself

Supreme Court Justice Ruth Bader Ginsburg in her Supreme Court chambers in Washington in July 2014. (Cliff Owen/AP)

Supreme Court Justice Ruth Bader Ginsburg in her Supreme Court chambers in Washington in July 2014. (Cliff Owen/AP)

It turns out that Donald Trump is not alone in speaking his mind and worrying even his biggest fans. Supreme Court Justice Ruth Bader Ginsburg, in a New York Times interview, made it pretty clear she can’t imagine a United States under a President Trump. She even joked about moving to New Zealand, although to be fair she was quoting her late husband – but the sentiment was pretty clear.

That’s a problem, say legal scholars. There’s a reason that justices are seldom vocal in the political arena. If Mr. Trump is anxious about having a judge with Mexican heritage on his civil case, can you imagine him with a justice who has made her view so clear? Aaron Blake, writing for the Washington Post, notes that Ginsburg “…. goes to a place justices almost never do – and perhaps never have – for some very good reasons.”

The report cites some pretty strong voices saying this was a mistake. Like this: “Louis Virelli is a Stetson University law professor who just wrote a book on Supreme Court recusals, titled ‘Disqualifying the High Court. He said that ‘public comments like the ones that Justice Ginsburg made could be seen as grounds for her to recuse herself from cases involving a future Trump administration. I don’t necessarily think she would be required to do that, and I certainly don’t believe that she would in every instance, but it could invite challenges to her impartiality based on her public comments.'”

Read the story and gauge the fallout here: In bashing Donald Trump, some say Ruth Bader Ginsburg just crossed a very important line

Trump U. Deposition Video May Become Public

Melina Mara/The Washington Post/Getty Images

Melina Mara/The Washington Post/Getty Images

Ever wonder what a Donal Trump lawsuit deposition looks like? If so, you might find out soon as several news organizations and others are asking that sworn deposition video from the “Trump University” litigation are made public. At issue are actually two cases where people who bought into the educational program claim they were duped.

Transcripts are already public. The Courthouse News reports from San Diego, backgrounding that: “… many legal experts agree that the facts surrounding the case are unsavory, particularly as Trump University was billed as a university when in actuality it was a three-day business seminar that attendees paid around $2,000 to attend. During the seminars, which were often run by salespeople rather than real estate experts, attendees faced high-pressure sales techniques aimed at getting them to buy a Trump Gold Premium package, which cost $35,000.”

The CN also said that “… the package guaranteed a mentor would help students break into individual real estate markets, but the plaintiffs in both cases claim this mentorship never occurred as promised. However, the experts are not convinced the brouhaha necessarily means the plaintiffs are assured a victory.”

An expert cited in the CN report says facts are not really at issue, but rather if a “reasonable person” might rely upon the marketing to make a purchase decision. The Trump side is seeking a summary judgment from the court and the current fight is over whether to make the videotapes of the depositions part of the evidentiary record – which would likely make the public. The CN notes that “… a slate of media companies, including the Washington Post and Fox News, has intervened, asking the tapes be disclosed to the public. A hearing on the matter is set for July 13.”

As usual, the CN is all over the case: CNS – Transcripts Show Defiant, Evasive Trump

Trump Promises Deportation, But Obama Already Delivering It

Advocates say immigration raids are making it more difficult to contact potential Latino voters. | AP

Advocates say immigration raids are making it more difficult to contact potential Latino voters. | AP

While Donald J. Trump has outraged immigration advocates by saying he intended to deport massive numbers of undocumented residents, the Obama administration is outraging many of the same people by actually deporting families here to seek asylum from dangerous countries. Politico is reporting that “… the administration has so far declined to confirm specifics about the latest round of raids, which were disclosed in a Reuters report this month. According to a document obtained by the news agency, Immigration and Customs Enforcement officials have told agents across the country to prepare for a 30-day ‘surge’ of arrests targeting mothers and children who have recently arrived in the country illegally but have been told to return to their home countries.

One part of the political fallout is simply that immigrant families that might worry about their status just don’t come to the door when political organizers visit. Politico is all over the story here:

Read more: http://www.politico.com/story/2016/05/immigration-raids-latinos-sanders-clinton-223671#ixzz4AFkexpwS