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.)

Conspiracy theorist Alex Jones to be heard in Sandy Hook case

Radio host and conspiracy theorist, Alex Jones. Photo credit: Wikipedia.

Radio host and conspiracy theorist, Alex Jones. Photo credit: Wikipedia.

According to the Hartford Courant, lawyers for conspiracy theorist Alex Jones went to the state Supreme Court Thursday “to challenge a court order in a case where families from Sandy Hook Elementary School are suing him, saying the radio host claimed the school shooting was a hoax.”

The lawyer for Alex Jones argued in the Connecticut Supreme Court that he “should not have been penalized for an angry outburst on his Infowars web show against an attorney for relatives of some of the Sandy Hook Elementary School shooting victims,” reports the Associated Press.

The AP report explains, “The families of eight victims of the 2012 shooting in Newtown, Connecticut, and an FBI agent who responded to the massacre are suing Jones, Infowars, and others for promoting a theory that the shooting was a hoax. A 20-year-old gunman killed 20 first-graders, six educators and himself at the school, after having killed his mother at their Newtown home. The families said they have been subjected to harassment and death threats from Jones’ followers because of the hoax conspiracy.”

In politically charged case, appeals court hears Affordable Care Act challenge

Photo Credit:Annie Flanagan for The New York Times as published in their report on 7/9/19.

Photo Credit: Annie Flanagan for The New York Times as published in their report on 7/9/19.

The fate of the Affordable Care Act — commonly known as ObamaCare — rests with a federal appeals court, in a judicial standoff that could affect the 2020 presidential election.

The New York Times reports, “A panel of federal appeals court judges on Tuesday sounded likely to uphold a lower-court ruling that a central provision of the Affordable Care Act — the requirement that most people have health insurance — is unconstitutional. But it was harder to discern how the court might come down on a much bigger question: whether the rest of the sprawling health law must fall if the insurance mandate does.”

Yet as the 5th Circuit Court of Appeals in New Orleans ponders a ruling, the lawsuit could affect next year’s presidential election, The Hill.com reports.

“The lawsuit has proved to be a headache for congressional Republicans seeking to turn the page on their efforts to repeal ObamaCare after the issue helped Democrats win back the House in last year’s midterm elections,” The Hill.com reports.

“If the case makes it to the Supreme Court, the decision would likely be handed down in June 2020, dropping a bomb in the center of the presidential election.”

The health care law has weathered legal challenges since the U.S. Supreme Court upheld the mandate in 2012.

“If the mandate is indeed unconstitutional, the next question is whether the rest of the Affordable Care Act can function without it. In December,” The New York Times reports. “Judge Reed O’Connor of the Federal District Court in Fort Worth said it could not and declared that the entire law must fall.”

Court rebukes President Trump for blocking followers on Twitter

Photo Credit: Anna Moneymaker/The New York Times as reported in The New York Times on 7/9/19.

Photo Credit: Anna Moneymaker/The New York Times as reported in The New York Times on 7/9/19.

How the First Amendment functions in the social media age gained further clarity this week when a federal appeals court ruled that President Trump violated the Constitution by blocking people from following his Twitter account.

“Because Mr. Trump uses Twitter to conduct government business, he cannot exclude some Americans from reading his posts — and engaging in conversations in the replies to them — because he does not like their views, a three-judge panel on the United States Court of Appeals for the Second Circuit, in New York, ruled unanimously,” The New York Times reports.

Tuesday’s ruling may be appealed.

“Mr. Trump’s legal team argued, among other things, that he operated the account merely in a personal capacity, and so had the right to block whomever he wanted for any reason — including because users annoyed him by criticizing or mocking him,” The New York Times reports.

“Courts have increasingly been grappling with how to apply the First Amendment, written in the 18th century, to the social-media era,” The Times continues. “In 2017, for example, the Supreme Court unanimously struck down a North Carolina law that had made it a crime for registered sex offenders to use websites like Facebook.”

Apple Supreme Court ruling opens doors for more legal action against tech giants

Photo Credit: Qilai Shen/Bloomberg as reported by the Washington Post.

Photo Credit: Qilai Shen/Bloomberg as reported by the Washington Post.

The Supreme Court ruled today that consumers could proceed with a large antitrust class action lawsuit against Apple.  

The New York Times reports that the justices decided “that the plaintiffs should be allowed to try to prove that the technology giant had used monopoly power to raise the prices of iPhone apps.”

The report explains, “Apple charges a 30 percent commission to software developers who sell their products through its App Store, bars developers from selling their apps elsewhere and plays a role in setting prices by requiring them to end in 99 cents.”

According to the Washington Post, “The 5-4 decision could spell serious repercussions for one of Apple’s most lucrative lines of business, and open the door for similar legal action targeting other tech giants in Silicon Valley.”

Arbitration gains currency after Supreme Court decision

unnamed-4Employees trying to take companies to court face more likelihood of arbitration based on a recent U.S. Supreme Court ruling, The Recorder at law.com reports.

A string of U.S. Supreme Court decisions favoring arbitration contracts, including the recent split decision in Epic Systems Corp. v. Lewis, changed the landscape of workplace litigation, the site notes.

“Claims of persistent sexual harassment and discrimination in the workplace, fast-food workers shorted on pay and gig economy contractors fighting for employee status have all been routed to arbitration in decisions citing Epic,” The Recorder notes.

“[Epic] changes the dynamics in a profound way,” Gerald Maatman, a partner at Seyfarth Shaw in Chicago told The Recorder. “It’s one of the most important decisions from the Supreme Court that impacts workplace issues.”

“In collaboration with San Francisco-based legal research company Casetext, The Recorder affiliate The National Law Journal analyzed 92 decisions from U.S. courts of appeal and federal district courts that cited Epic in the seven months between when it was handed down last May and the end of 2018,” the article notes. “Among those cases, 10 circuit court and 49 district court decisions centered on arbitration and dealt with workplace claims — and the majority either compelled arbitration or revived it as a live issue.”

‘Dreamers’ could see fate resolved by Supremes

Photo Credit: Julián Aguilar/The Texas Tribune as reported in The Texas Tribune on 7/31/18.

Photo Credit: Julián Aguilar/The Texas Tribune as reported in The Texas Tribune on 7/31/18.

The future of DACA, the Deferred Action for Childhood Arrivals program, will become clearer as federal courts wrestle with the Obama-era initiative to shield young immigrants from deportation. And the U.S. Supreme Court may end the controversy once and for all.

The Washington Post reports that on Friday, Aug. 17, U.S. District Judge John D. Bates ruled that the Trump administration must continue processing renewals but that the administration can halt new applications for “Dreamers” while DACA is under appeal.

“Bates is one of the federal judges presiding over four different lawsuits aimed at maintaining or eliminating DACA, which was created by executive order by President Barack Obama and then ended by President Trump,” the Post reports.

The Texas Tribune notes that on Aug. 8, federal District Judge Andrew Hanen was scheduled to hear the state’s request for a halt to the program preliminarily “while the issue meanders its way through the federal court system.”

The fate of DACA could ”end up in the hands of the U.S. Supreme Court,” the Texas Tribune reports. “In June, the Department of Justice asked Hanen to delay a possible injunction ‘so the United States can seek stays of all the DACA injunctions in the respective courts of appeals and the Supreme Court,’” the Tribune notes.

Trump Ponders Next Steps After Court Nixes Immigration Order

Several prominent legal experts are encouraging President Donald Trump to withdraw his current order and redraft it. | AP Photo

Several prominent legal experts are encouraging President Donald Trump to withdraw his current order and redraft it. | AP Photo

The D.C.-based Politico newspaper is outlining what options President Trump’s team has after the California-based 9th Circuit appeals court nixed his travel order this week. Politico said the Trump group was “… licking their wounds following a stinging appeals court defeat, President Donald Trump’s aides went into triage mode Friday as they consider options for salvaging his contested travel ban executive order.”

The story notes that “… Trump rarely backs down from a fight, but there were initial signs that the White House might not proceed as originally expected with an emergency application to the Supreme Court. Legal experts said it was doubtful Trump could muster what he’d need to get immediate relief there: the votes of five justices on the high court, which remains shorthanded with only eight justices. A 4-4 deadlock would leave the ruling suspending enforcement of Trump’s ban in place.”

See the story here: Trump team mulls next steps on travel ban order

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

“Equally Divided Court” (Sorta) Leaves Obama’s Deportation Executive Order In Limbo

Questions will persist on whether President Obama superceded his authority by creating by executive order the Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) program designed to defer deportation for millions of immigrants.

Today, the Huffington Post reports the Supremes affirmed a lower court ruling that blocked the program stating simply, “The judgment is affirmed by an equally divided court.” While immigration advocates may lament the loss, the order itself rings hollow given the Administration’s renewed call last month to seek out and deport Border Kids escaping gang and drug cartel violence from Central America.

Irrespective of where one stands on the immigration reform debate, the fact is that the question of executive power was left unanswered because now even the judicial branch has been brought to a standstill.