(C) Daily Kos
This story was originally published by Daily Kos and is unaltered.
. . . . . . . . . .
Nuclear Trump's runaway judging resembles Roy Cohn's aphorism about how only judges matter [1]
['This Content Is Not Subject To Review Daily Kos Staff Prior To Publication.', 'Backgroundurl Avatar_Large', 'Nickname', 'Joined', 'Created_At', 'Story Count', 'N_Stories', 'Comment Count', 'N_Comments', 'Popular Tags']
Date: 2022-09-06
"Barbara McQuade just announced that in order for the DOJ to get pass the ruling for a special master for the United States V Trump is to file criminal charges against Trump in the DC circuit where the crime was committed making the Florida judge ruling moot"
With the Roy Cohn quote, judge-shopping, like venue-shopping, gained even more future meanings in the stolen-secrets-a-lago affair. Much like the sexual adventures of Trump makes him a legal fuckboi, this accelerates the possibility of the end of democracy by means of lawfare. Even if the Feds indict him, there won’t be a second of prison time for Trump because there will be a runaway jury.
Justice in a democracy may have gotten nuked because Trump did steal nuclear secrets and left them poorly secured at Mar-a-Lago. Judges in Trump-world are chosen like Trump’s Miss America pageant backstage pass and like CLS or CRT (see below), Trump’s chosen justice is as special as the legal system he has now personally constructed, because he claims that “he’s the least racist person you know”. Perhaps, we know for sure he shoplifted things from the US government, but in Trump’s terms he's the “perfect” libertarian, a man only Ayn Rand could … love.
x Whose Nukes Plans Got Stored in the Closet at Mar-A-Lago?
https://t.co/99bj3XzzGD — Talking Points Memo (@TPM) September 7, 2022 A document describing a foreign government’s military defenses, including its nuclear capabilities, was found by FBI agents who searched former president Donald Trump’s Mar-a-Lago residence and private club last month, according to people familiar with the matter, underscoring concerns among U.S. intelligence officials about classified material stashed in the Florida property. Some of the seized documents detail top-secret U.S. operations so closely guarded that many senior national security officials are kept in the dark about them. Only the president, some members of his Cabinet or a near-Cabinet-level official could authorize other government officials to know details of these special-access programs, according to people familiar with the search, who spoke on the condition of anonymity to describe sensitive details of an ongoing investigation. Documents about such highly classified operations require special clearances on a need-to-know basis, not just top-secret clearance. Some special-access programs can have as few as a couple dozen government personnel authorized to know of an operation’s existence. Records that deal with such programs are kept under lock and key, almost always in a secure compartmented information facility, with a designated control officer to keep careful tabs on their location. www.washingtonpost.com/... x Trump’s claim that he declassified everything is highly disputed and not necessarily relevant to potential crimes. But his publicly stated position is that he declassified it all, which would include this particular information.
https://t.co/48pcQfoPYU — Kyle Cheney (@kyledcheney) September 7, 2022 x It’s bad. I’ll break this down with @SRuhle on @11thHour: Material on foreign nation’s nuclear capabilities seized at Trump’s Mar-a-Lago @MSNBC
https://t.co/NvteDBJtFL — Frank Figliuzzi (@FrankFigliuzzi1) September 7, 2022 x Here’s how you can be sure there were nuclear secrets at Mar-A-Lago
Trump said there weren’t nuclear secrets at Mar-A-Lago. — Chris Hahn (@ChristopherHahn) September 7, 2022
“Before we send an innocent man to prison, shouldn’t we let him choose his own judge, bury the evidence, and set the entire system aflame? www.newyorker.com/...
Roy Cohn was known for saying, “Don’t tell me what the law is, tell me who the judge is.” The relevance of that quote lingers for a reason. Cannon said at the outset that she was inclined to give Team Trump what it wanted, but she thought it best to give the Justice Department an opportunity to make its case. When prosecutors did exactly that in devastating fashion, the Trump-appointed judge ignored them and issued a ruling legal scholars are hard pressed to defend. As for what’s next, it’s unclear how and whether the Justice Department might appeal. Complicating matters, of course, is that the matter would next go to the 11th Circuit Court of Appeals, where Republican-appointed judges have a sizable majority. www.msnbc.com/...
x There are solutions out there for the problem of Trump’s runaway judges, like Aileen Cannon.
https://t.co/yFX2D21iYg — Slate (@Slate) September 6, 2022 Legal analysts lit up social media on Monday in response to the broad and potentially devastating order by Judge Aileen M. Cannon, a Donald Trump appointee to the Southern District of Florida, temporarily halting the criminal investigation of the former president and his alleged pilfering of classified documents. Her order further authorized a special master to identify and return the small fraction of materials seized in last month’s court-approved search of Trump’s Mar-a-Lago residence that may belong to him. One analyst after another meticulously detailed the failings of Cannon’s reasoning: It was “untethered to the law,” “a political conclusion in search of a legal rationale,” “deeply problematic,” “laughably bad.” At some point, one truly runs out of euphemisms for lawless partisan hackery. It’s possible to agree with every one of these criticisms but still find them less than satisfying. Because at the end of the day, no matter how much withering criticism she faces, Cannon still gets to put on the black robe and run interference for her benefactor. She will still get a standing ovation at some future Federalist Society gathering. She remains in control of this case. But it’s not just Cannon: Many smart lawyers also noted that the Justice Department now faces the unenviable task of having to appeal this decision up to higher courts that are filled with Trump appointees, which takes the sting out of the opprobrium: For all we know, the Trump-stacked 11th U.S. Circuit Court of Appeals or five radical justices on the Supreme Court may also greet her outrageous decision with a standing ovation. So the problem is not just the extreme and heinous flaws in Cannon’s ruling. It’s also the Trump-shaped world in which Cannon operates, with impunity, which we will all have to endure for the foreseeable future. It’s the brutal reality that we may face a steady stream of depraved decisions like Cannon’s for the rest of our lives—and the pain of hearing from every quarter that nothing can be done to remedy it. slate.com/...
x Laurence Tribe (@tribelaw), Philip Lacovara and Dennis Aftergut write:
The Justice Dept would be on strongest legal ground to indict former President Trump for MAL crimes in DC not Florida.
A deep dive into this over-the-horizon question and others.
https://t.co/7QWmAsWCIn — Just Security (@just_security) September 6, 2022 x So humbled by the accolade from one of my personal heroes and role models. ❤️ — Andrew Weissmann 🌻 (@AWeissmann_) September 6, 2022 x Very hard call; I would vote for 3. Important to move forward quickly with investigation, but the injunction causes real harm to natl security review and is a dangerous precedent to let stand. (See my new Atlantic piece) In any other case, it would be appealed. — Andrew Weissmann 🌻 (@AWeissmann_) September 6, 2022 x Judge Cannon ignores the legal experts in this case.
https://t.co/UYxbqB0cau — Occupy Democrats (@OccupyDemocrats) September 6, 2022 Orin Kerr, a conservative law professor at UC Berkeley, noted that many actual lawyers were “giggling at Trump’s motion, and how poorly it was done.” x I know it's un-Twitter-like to ask a genuine Q, not try to score points, but a Q. I understand how a court can enjoin further execution of a warrant. But does a federal court have authority to enjoin executive branch "use" of seized materials for "investigative purposes"? — Orin Kerr (@OrinKerr) September 5, 2022 The warrant is a court order, so executing it is a judicial issue (putting aside, at least for now, that this was another court's order). But this seems to be an order to enjoin the investigation *after* the warrant was executed.
I'd be interested in knowing more about a judge's authority to do that. Plan to research that later today. If you have cites to authority on this, please provide them below, thanks.
Some cases:
"Prospective defendants cannot, by bringing ancillary equitable proceedings, circumvent federal criminal procedure." Deaver v. Seymour, 822 F.2d 66 (DC Cir. 1987) (Silberman, J.) (rejecting civil suit to enjoin govt from indicting plaintiff).
scholar.google.com/scholar_case?c…
https://scholar.google.com/scholar_case?case=2356063336897097753&q=822+F.2d+66&hl=en&as_sdt=2006 Lots of good citations in this recent district court case, to the effect that federal courts lack the power in a civil action to enjoin the executive branch from prosecuting a
criminal case. The case is McPhee v. United States, 2021 WL 5014815 (SDNY 2021). Similar, from Ali v. United States, 2012 WL 4103867 (WDNY 2012). Ok, so it seems like a federal court in a civil action lacks the power to enjoin a federal prosecution. To my mind, that raises a lot of questions. Judge Cannon has tried to enjoin "use" of the seized materials "for investigative purposes." First, is indicting Trump "use"?
Second, if a federal court lacks power to stop the executive branch from prosecuting a case, can it have power to stop the executive branch from investigating a case to see if a prosecution is appropriate? (I would think they go together-- both core executive branch functions.)
To my mind, this is one of the weirdest parts of Judge Cannon's order. Appointing a special master is very odd here. But the bigger deal is enjoining "use" of the seized materials that were already searched, for further "investigative purposes" (whatever that means). x I take the judge's view to be that she has to control the executive branch's investigation to stop it from potentially violating Trump's rights. But under our system of separated powers, that has to be dealt with ex post, not through an injunction. LA v. Lyons, 461 US 95 (1983). pic.twitter.com/MqrlWAjhSX — Orin Kerr (@OrinKerr) September 6, 2022 • • • x Barr can't be trusted as far as you can throw him. Whether you agree with him or not, best to ignore him. If you find you agree with him on an issue, carefully re-analyze your stance to avoid pushing a step that will backfire. That may not be the case, but proceed with caution. — Elizabeth de la Vega (@Delavegalaw) September 6, 2022 x An oldie (gif)! 2016
https://t.co/66jVTCDsml — Ann Telnaes (@AnnTelnaes) September 6, 2022
Consistent with their leftist heritage, CLS theorists call for radical changes in the law and in the structure of society itself. Unger has called this radical project "institutional reconstruction." Many in the CLS movement want to overturn the hierarchical structures of domination in modern society, and many of them have focused on the law as a tool in achieving this goal. The law, CLS claims, has played a key role in maintaining that hierarchy by impeding efforts at social change. In general, CLS argues that there is no natural or inevitable form of social organization, and there is by no means agreement between CLS scholars as to what form society and its laws should take. CLS thus avoids the kind of blueprint for social revolution that radical leftist movements such as Marxism-Leninism supplied in the past. Instead, leading CLS devotees envision a potential emancipation of individuals from the structures of power that restrict and victimize them. For these reasons, the political philosophy of many in the CLS movement has been described as utopian, a characterization that many do not completely deny.
https://law.jrank.org/pages/5891/Critical-Legal-Studies-CLS-Its-Alternative-View-Law-Society.html#ixzz7eAF4do2B CRT began in the mid-1970s when many intellectuals perceived that the civil rights movement of the 1960s had ended and that in fact many of its gains were being turned back. As a result, they began to develop new theories and concepts that would allow them to understand the causes and implications of these new developments. Like CLS, CRT gathers disparate scholars and theorists under a common heading. However, CRT is a less formally organized school of thought than CLS. Leading critical race theorists include DERRICK ALBERT BELL JR., Alan D. Freeman, and Patricia J. Williams. The first annotated bibliography of CRT writings, published in 1993, listed over 200 books and articles. [...] Critical race theorists share a number of themes. Like CLS, CRT finds major faults in liberalism and particular features of liberal jurisprudence that bear on race, including AFFIRMATIVE ACTION, neutrality, and "color blindness." Many CRT writers, for example, dispute that the Constitution is or ever can be "color-blind." They also assert that supposed breakthroughs in the area of racial rights by the Supreme Court serve only to validate an unjust political system by creating the illusion that racial inequalities are being ended when in fact they are not.
https://law.jrank.org/pages/5890/Critical-Legal-Studies-Critical-Race-Theory-CRT.html#ixzz7eAEo4RAv
[END]
---
[1] Url:
https://www.dailykos.com/stories/2022/9/6/2121175/-Nuking-Trump-s-runaway-judging-is-all-about-the-Roy-Cohn-version-of-CRT-applied-to-classified-a-lago
Published and (C) by Daily Kos
Content appears here under this condition or license: Site content may be used for any purpose without permission unless otherwise specified.
via Magical.Fish Gopher News Feeds:
gopher://magical.fish/1/feeds/news/dailykos/
