Category Archives: Courts

Why Trump Remains on the Ballot

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The US Supreme Court ruled Monday that former President and current Republican Primary Presidential candidate Donald Trump will remain on all of the relevant election ballots, overruling the Colorado State Supreme Court directly and Maine’s Secretary of State by extension. The Court’s reasoning is important. From the ruling’s second paragraph:

Because the Constitution makes Congress, rather than the States, responsible for enforcing Section 3 [of the 14th Amendment] against federal officeholders and candidates, we reverse.

The Court expanded on this, quoting Chief Justice Samuel Chase in his 1869 Griffin’s Case ruling:

[t]o accomplish this ascertainment [of which person[s] are explicitly barred under Section 3] and ensure effective results, proceedings, evidence, decisions, and enforcements of decisions, more or less formal, are indispensable.

The Supreme Court went on:

The Constitution empowers Congress to prescribe how those determinations should be made. The relevant provision is Section 5 [of the 14th Amendment], which enables Congress, subject of course to judicial review, to pass “appropriate legislation” to “enforce” the Fourteenth Amendment.

The Court concluded [emphasis in the original]:

We conclude that States may disqualify persons holding or attempting to hold state office. But States have no power under the Constitution to enforce Section 3 with respect to federal offices, especially the Presidency.

The three modern-day liberal/activist Justices, Sonya Sotomayor, Elena Kagan, and Ketanji Brown

Jackson, while concurring in the overall judgment that Trump stays on the ballot(s), were superficially Roberts-esque in their dissent from the sweeping nature of the Court’s ruling. They began by quoting from Dobbs v Jackson Women’s Health Organization:

If it is not necessary to decide more to dispose of a case, then it is necessary not to decide more.

But only superficially: they then wrote [citations omitted],

Today, the Court departs from that vital principle, deciding not just this case, but challenges that might arise in the future. … They decide novel constitutional questions to insulate this Court and petitioner from future controversy. Although only an individual State’s action is at issue here, the majority opines on which federal actors can enforce Section 3, and how they must do so. The majority announces that a disqualification for insurrection can occur only when Congress enacts a particular kind of legislation pursuant to Section 5 of the Fourteenth Amendment. In doing so, the majority shuts the door on other potential means of federal enforcement. We cannot join an opinion that decides momentous and difficult issues unnecessarily, and we therefore concur only in the judgment.

[S]huts the door on other potential means: This is the activist Justices’ desire to keep this controversy alive, to keep a Presidential candidate of whom they have only contempt facing a constant and long-lasting barrage of cases seeking nothing more than to interfere in our 2024 election by interfering with a major and leading (redundancy deliberate) political candidate’s ability to campaign freely. And thereby to deny to us ordinary Americans our ability, our right, to decide for ourselves who we will choose for our President. These Justices do this solely because they personally disapprove of the particular candidate.

 

The Court’s ruling can be read here.

Trump’s Immunity Case and Judicial Courage

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The Supreme Court has agreed to hear former President and current Republican Presidential primary candidate Donald Trump’s case for Presidential immunity from prosecution for acts taken while he was President and acting in that capacity. The Wall Street Journal editors are correct in writing that [t]he Justices are right to rule on Trump’s immunity claim even if it delays a trial.

To call that a courageous move, though, is a bit premature. Chief Justice John Roberts is well-known for ducking controversy in favor of “preserving” the Court’s legacy and credibility. He’s done that whenever he can by getting the Court to rule as narrowly as possible on any particular case.

The courage of the Court’s ultimate ruling in the present case must be measured against whether that ruling is written as narrowly as possible or written regarding the principles involved: whether any President gets immunity from criminal prosecution for acts taken while President and acting in that capacity, the definition of “acting in that capacity,” and the nature of the acts so protected—and not protected. In that latter criterion, our Constitution offers some muddy clarity: any President can be impeached in the House and convicted in the Senate for Treason, Bribery, or other high Crimes and Misdemeanors.

The clarity stems from that enumeration of treason and bribery. The muddiness stems from that hazy “high Crimes and Misdemeanors.” The muddiness further stems from the Senate trial being a political one, not a criminal one, and so any subsequent criminal trials create no double jeopardy question.

The Roberts Court must answer all of those questions definitively before its ruling can be counted as courageous.

Bonus: more courage would attach were the Court to address that “high Crimes and Misdemeanors” part, suggesting—not specifying—the sort of things that might fit within that phrasing or saying with some specificity that that phrasing does, in fact, mean whatever the House and Senate say they are in any particular impeachment/trial action.

Another Reason to Rescind Chevron Defense

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As The Wall Street Journal‘s editors put it in their editorial last Tuesday, nothing is stopping the

Securities and Exchange Commission and prosecutors from finding [regulatory] meaning in statutory penumbras.

Now the SEC is manufacturing a rule based on nothing but the æther in SEC Chairman Gary Gensler’s mind. Gensler has hailed into court a pharmaceutical company employee for the “insider trading” crime of trading in options on the stock shares of another pharmaceutical company, a company about which the man had no insider information at all. Not a whit.

Gensler, however, in plumbing the depths of his shadowy æther, has claimed to have found something in a penumbra of Federal law and Court decisions regarding insider trading. The man he’s charging knew from an employee-broadcast email from his company’s CEO that his company might be about to be acquired by another company—not the company in which our man did his trading.

Poof—Gensler has waved his hands and conjured an insider trading beef centered on no insider trading information at all. As the WSJ noted,

Federal law doesn’t explicitly ban trading on confidential information. But courts have said that insiders defraud companies by “misappropriating” private information for personal gain.

It’s in the phantasmal penumbra of “private information” that Gensler has conjured his offense: private information in one company (not even that private, it was a company-wide email that revealed the potential for an acquisition of the employee’s company) casts a shadow over other, Gensler-unspecified, companies, and so brings those other companies into the reach of one company’s allegedly private information.

And this, regarding those chimeric penumbras[1] of which too many of our courts still claim to see:

If something is in a penumbral region, it is not in the text.  If it is not in the text, it does not exist ….  If it does not exist, a judge cannot rule on it.  If in the end, all a judge can do after carefully reading the text is go more than a toe’s dip into its shadows for meaning, then he must not go in: he must rule a lack of governing statute or strike the statute for vagueness, and in either event return the matter to the political branches.

And this, from Justices Antonin Scalia and Clarence Thomas, in denying a 2014 cert petition in Whitman v US [emphasis in the original]:

Only the legislature may define crimes and fix punishments. Congress cannot, through ambiguity, effectively leave that function to the courts—much less to the administrative bureaucracy[.]

Now the Supreme Court must overrule the SEC outright, which would be much easier to do were it to also—or already have by the time this case reaches it—rescinded the Chevron Defense foolishness which subordinates, by Constitutional design, the coequal Judiciary not just to the Executive, but to Executive subordinate branches led by political appointees and peopled by unknown and faceless bureaucrats.

[1] Hines, Eric, A Conservative’s View of the American Concept of Law

What Damages?

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Stipulate, arguendo, that Republican Primary Presidential candidate Donald Trump was, indeed, guilty of civil fraud as New York judge Arthur Engoron ruled regarding the way Trump valued his properties in order to obtain loans. As a result of that civil conviction, Engoron has ordered, among other things, that Trump must pay more than $350 million in “ill-gotten profits” which are some sort of “damages.”

I have to ask: what damage? What ill-gotten profit? All the bank loans were repaid in full along with all of the associated interest accumulated over the lives of the loans. Think about that for a moment. The question of damage goes, or should go, far beyond the proximate question of whether the banks got all that was due them under the terms of those loans.

Had Trump valued his properties in line with Engoron’s claims—Mara Lago, for instance was worth only $18 million in Engoron’s judicial (not financial) estimation rather than the $420 million (at least) at which Trump valued it—the associated loans would have been far smaller, and the banks would have made far less money. What damage, indeed?

And those “ill-gotten profits” that Trump made with those loans? Those loans and associated profits allowed some of his businesses to survive and those employees to continue to have good jobs, and those loans and associated profits allowed other of his businesses to grow and those businesses to hire more employees into growth-created good jobs.

Valid Arguments

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Several States’ Attorneys General have filed an amicus brief in a Supreme Court case centered on whether Texas and Florida statutes that limit Big Tech’s ability to censor speech done on their platforms are legitimate. The analogy they draw is one valid argument.

[Summarized by Fox News]: [G]iving Big Tech the ability to moderate or censor users’ content would be like giving cable or telephone companies permission to cut phone lines on speech at their discretion. The AGs note that under federal “must-carry requirements,” those companies are banned from subjugating any speech on their lines.

And:

The Eleventh Circuit concluded social media companies could censor content because they have “historically exercised” power to refuse transmission of disfavored ideas.
But telegraph companies have a much longer history of censorship. Social media is less than two decades old. Congress did not impose must-carry requirements on telegraphs until 1888, 50 years after their invention[.]
Yet it is well recognized today that those must-carry regulations were constitutional—even though this Court declared that telegraph companies are “not common carriers.” History thus provides no basis for dismissing the striking similarities between social media companies and telegraph and telephones by dubbing social-media censorship “editorial judgment[.]”
While the earlier laws applied to telegraphs and telephones, it is no different when the companies carrying other people’s speech are digital rather than analog[.]
The States thus have a paramount interest in urging this Court to affirm that longstanding, historic authority of States to protect freedom of speech and enable representative government by prohibiting dominant communication networks from censoring[.]

There is one more argument that is, IMNSHO opinion, dispositively on point. This is the status of those Big Tech platforms—X (nee Twitter), Meta’s Facebook, and Alphabet’s YouTube, for instance—as public forums. Indeed, some of these platforms have explicitly stated that they intend to be public squares for public discourse, even as they also provide mechanisms for exchanging private correspondence.

The public square is precisely where speech may not be censored except within a very few very narrowly defined boundaries—incitement to riot, explicit threats of violence against particular persons. Whether any Big Tech platform has explicitly styled itself a public square, each of these platforms have grown so large—become so dominant—that each one of them is, de facto, a public square. Their censorship practices must be barred.