Category Archives: Courts

Testimony of a Perjurer

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Michael Cohen is on the stand this week in the trial of former President Donald Trump (R), testifying as a prosecution witness.

He is the only person likely to provide direct evidence that Trump himself ordered a coverup of a payment to porn star Stormy Daniels.

However,

Cohen also has plenty of baggage that could make jurors question his testimony. He is a convicted liar [and a] disbarred lawyer….

It’s hard to see how anything Cohen could say on the stand could be taken seriously without independently corroborating testimony or evidence. But if there were such testimony or evidence, Cohen wouldn’t need to testify in the first place; the prosecution would simply present that independent testimony or evidence.

Justice Breyer is Wrong Again

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Former Supreme Court Justice Stephen Breyer is out with a new book [emphasis in the title], Reading the Constitution: Why I Chose Pragmatism, Not Textualism. In an interview with The New York Times, he had this to say about originalism, textualism, and relatively newly appointed Justices.

Recently, major cases have come before the court while several new justices have spent only two or three years at the court. Major changes take time, and there are many years left for the newly appointed justices to decide whether they want to build the law using only textualism and originalism.

Yeah, these Justices couldn’t possibly have developed their view over the years they’d spent on lower court benches, or practicing law, or clerking for other judges and Justices.

Then there’s his inherent position that judges and Justices build the law in the first place. Of course, they cannot, legitimately; they can only interpret and apply the law and our Constitution as they are written. Building the law is, under our Constitution, solely the province of our elected legislators in conjunction with the advice of our elected President (advice, because his veto can be overridden by those same legislators).

There’s this, too, from Breyer:

First, it requires judges to be historians—a role for which they may not be qualified—constantly searching historical sources for the “answer” where there often isn’t one there[.]

That’s an astonishing thing for a judge of any sort to say. Stare decisis—precedent—has history at its core as judges and Justices search out those precedents, their reasons for existing, and whether those reasons still apply or were applied correctly in the first place. Of course judges must be historians, at least regarding law and the politics that underlie a law’s creation.

Second, it leaves no room for judges to consider the practical consequences of the constitutional rules they propound.

Whose definition of “practical consequences?” This, too, is a matter solely for the political branches, the Legislature and the Executive, along with We the People who elect them, to define. Such definitions are essential aspects of law building from which the structure of our government and the oaths of office our judges and Justices take explicitly bar those judges and Justices.

And third, it does not take into account the ways in which our values as a society evolve over time as we learn from the mistakes of our past.

This, too, is far outside the authority of judges and Justices. They don’t get to define the ways in which our values as a society evolve nor do they get to alter our laws or our Constitution to align with their personal views of those values or their personal views of those values’ supposed evolution. Their authority is strictly limited, again, to applying the law and our Constitution as they are written.

So it is with our Constitution in particular, and that document evolves with society in a particular way: through Article V and its instruction on how to amend our Constitution.

All adjusting according to society’s evolution is the sole province of our elected legislatures and us citizens who elect them. The latter—us citizens—after all are the entirety of our society and the definers, in our aggregate, of what our society’s values are. Judges and Justices, as private citizens, certainly are part of our citizen population, but when they’re operating in their capacity as judges and Justices, they are not private citizens, but public employees who are bound to act within the law and our Constitution.

That, in turn, requires them—all together now—to apply the law and our Constitution as they are written. Justices who presume, in particular, to modify our Constitution from the bench, under the rationale, perhaps, that society’s values have changed from when those clauses and amendments were ratified, are explicitly violating their oath of office to support and defend our Constitution, not to alter it.

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