Monthly Archives: June 2024

Former President Donald J. Trump says he is prepared to prosecute his political enemies if he is elected this fall. Simply making those threats, legal experts said, does real damage to the rule of law.

But if he is already challenging bedrock norms about the justice system as a candidate, Mr. Trump, if he wins the presidency again, would gain immense authority to actually carry out the kinds of legal retribution he has been promoting.

The Justice Department is part of the executive branch, and he will be its boss. He will be able to tell its officials to investigate and prosecute his rivals, and Mr. Trump, who has made no secret of his desire to purge the federal bureaucracy of those found insufficiently loyal to his agenda, will be able to fire those who refuse.

While the department has traditionally had substantial independence, that is only because presidents have granted it. If the legal system resists political prosecutions in a second Trump term, it will be largely because judges and jurors reject them.

Mr. Trumps musings on his planned prosecutions serve an immediate political purpose, highlighting his argument that his conviction in New York was the product of an effort by Democrats to keep him from being elected again and providing the red meat of prospective retribution to his base.

But they also have the effect, partly incidental and partly calculated, of undermining faith in the integrity of the criminal justice system, a development that could have profound effects in a nation where the rule of law has been foundational.

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Trump's Vows to Prosecute Rivals Put Rule of Law on the Ballot - The New York Times

Frank Bruni, a contributing Opinion writer, hosted a written online conversation with Josh Barro, who writes the newsletter Very Serious, and Olivia Nuzzi, the Washington correspondent for New York magazine, to banter and bicker about the potential political fallout of the Trump conviction.

Frank Bruni: Josh, Olivia, great to be with you. I want to start not with Donald Trump but with Joe Biden. What happens on Nov. 5 has as much to do with Bidens navigation of the coming months as with Trumps, and Biden is getting all sorts of conflicting advice.

Whats the optimal balance between running against a convicted felon and focusing on the day-to-day concerns of less partisan, less engaged voters? I for one think Biden needs to be very careful about overdoing the felon part voters are well aware of Trumps status, transgressions and, er, character. Your thoughts?

Josh Barro: A defining feature of this campaign, as Nate Cohn has written on extensively for The Times, is that Bidens support has been holding up well among highly engaged voters and has fallen terribly over the last four years among less-engaged Americans. Much of Bidens slide in the polls is because of worsening views of him among people who did not vote in the 2020 election. So Bidens big challenge is that he really needs to reach people who arent interested in politics and arent likely to hear any given message he sends out.

Most of those less-engaged voters were probably not following the trial closely, or at all. Its important for those people to hear that Trump is a convicted felon. Im not sure they need to hear it from Biden personally it might be a message to be pushed in paid media, by the Biden campaign or by affiliated pressure groups.

Bruni: Hmm, Josh, I dont know. Theres disengaged and then theres living off the grid. They really need a reminder that Trump is a felon?

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Opinion | Trump Is Blocking Out the Sun: Three Writers on the Politics of the Guilty Verdict - The New York Times

On Sunday, Trump wrote on Truth Social, his personal social media site, that the Supreme Court MUST intervene after a New York jury found him guilty of 34 counts of falsifying business records. Though Trumps post wasnt written with the precision of a legal brief, he appeared to float two separate theories that could justify tossing out his conviction: that the judge was impermissibly biased and that the prosecutor was out to get Trump.

Trumps rant was echoed by many Republicans, including US House Speaker Mike Johnson, who claimed that he knows many of the justices personally and that they are deeply concerned about Trumps conviction.

Speaker Johnson is undoubtedly correct that many of the justices are upset that the leader of their political party was convicted of multiple felony counts, a fact that could lead some voters to favor President Joe Biden over Trump in the 2024 election.

Last March, five of the Courts six Republicans voted to effectively neutralize a provision of the Constitution that prohibits former officials who engaged in insurrection or rebellion against the United States from seeking high office again. (All nine justices voted to reverse a state court decision tossing Trump off the ballot, but only five voted to effectively immunize Trump from accountability under this provision of the Constitution.)

Similarly, the Supreme Court has for months delayed Trumps federal criminal trial for attempting to overturn Bidens victory in the 2020 election, all but ensuring that it wont take place until after the November election.

But will the justices step in to nullify the one Trump criminal trial that was tried to conviction before the election? And can the Courts Republican majority intervene fast enough to throw out the conviction before voters cast their ballots this fall?

Lets take these questions in reverse order.

Assume, for just a moment, that a majority of the justices are partisan hacks who are determined to remove the stigma of a felony conviction from the Republican presidential candidate before the election. Could they actually invalidate his conviction before the November election?

The answer to this question should be no. Under the rules that apply to criminal defendants who are not named Donald Trump, two state-level appeals courts should review Trumps conviction before the justices could intervene. Both of those courts would ordinarily take months or longer to review a criminal appeal.

To toss out Trumps conviction before the election, the Court would have to take such extraordinary procedural liberties that this outcome is probably unlikely. But its also not possible to rule it out entirely. Not that long ago, it seemed unthinkable that the Court would give serious thought to Trumps argument that he is immune from prosecution for his attempt to overthrow the 2020 election. At oral argument in that case, however, most of the justices appeared eager to rule that former presidents have, at least, some immunity from criminal prosecution.

The Roberts Court also has a history of embracing legal arguments that were widely viewed as risible by the legal community after those arguments were adopted by the Republican Party. So, with a wide range of elected Republicans now calling for Trumps conviction to be tossed out, there is a real risk that the GOP-appointed justices will leap on this bandwagon.

This Supreme Court also has a history of manipulating its calendar to achieve substantive results. During the Trump administration, for example, when a lower court blocked one of Trumps immigration policies, the Court would often race to reinstate that policy days or weeks after the administrations lawyers asked the justices to do so. After Biden became president, however, the Court started sitting on similar cases for nearly a year, even in cases where the Court ultimately concluded that the lower court was wrong to block one of Bidens policies.

Similarly, after the Colorado Supreme Court held that Trump must be removed from the 2024 ballot because of his role in the January 6 insurrection, the Supreme Court reversed that decision on an extraordinarily expedited time frame, hearing oral arguments and deciding the case a little more than two months after the Colorado courts decision.

By contrast, the Court has now delayed Trumps federal election theft trial for nearly six months. And, based on the questions many justices asked during an April oral argument, the Court appears likely to hand down a decision that will force more delay and ensure that Trump is not tried before the November election.

Even so, to bypass the two state-level appeals courts that are supposed to consider Trumps conviction before the Supreme Court weighs in, the justices would have to engage in some truly extraordinary procedural gymnastics. Even Speaker Johnson didnt expect the Supreme Court to move quickly when he predicted that the justices would eventually step in to help Trump: Johnson told Fox News that its going to take a while.

Trumps conviction will first appeal to New Yorks intermediate appeals court (which, somewhat confusingly, is called the appellate division of the states Supreme Court). After the appellate division weighs in, the losing party can then appeal that decision to the highest court in New York, which is known as the Court of Appeals.

Except in very rare cases, any appeal of any trial court decision will take months. Trumps lawyers will need time to review the record in the trial and decide which issues they want to appeal, and they will need more time to brief the case. Then, the prosecutors will also need sufficient time to review Trumps briefs and prepare their own responsive brief, which Trumps lawyers will then be given some time to respond to. Once the briefs are ready, they will be distributed to a panel of judges, who ordinarily spend months reviewing the case, conducting oral arguments, and writing an opinion. This process can take even longer if a judge dissents.

This is just a brief summary of the process that will take place in the appellate division. If Trump plans to bring this case to the US Supreme Court, he will have to repeat this lengthy process in both the New York Court of Appeals and in the Supreme Court itself, and both of those courts have their own time-consuming process to decide which cases they will hear in the first place.

The Supreme Court does have a process, known as certiorari before judgment, which can be used to bypass an appellate court and bring a case directly to the justices, but cert before judgment is supposed to be granted only in the most exceptional cases, and its only supposed to be available to parties challenging a federal (not a state) court decision.

The Courts rules provide that it will be granted only upon a showing that the case is of such imperative public importance as to justify deviation from normal appellate practice and to require immediate determination in this Court. (Notably, when the shoe was on the other foot, the Supreme Court denied special counsel Jack Smiths request for cert before judgment in the Trump immunity case.)

Its hard to see what earth-shattering legal issue could be raised by a state-level prosecution over falsified business records that could justify such a deviation from normal procedures unless, of course, the justices believe that there is a moral imperative to rescue the Republican candidate from an embarrassing news story.

Meanwhile, some of Trumps allies have suggested that Trump could invoke even more obscure procedures, such as asking the Court to use its original jurisdiction to free him without going through the ordinary appeals process at all. But there are any number of problems with this approach among other things, as law professor Lee Kovarsky points out on Twitter, the Supreme Court hasnt granted this kind of relief to someone convicted of a crime since 1925.

In any event, even if the justices are inclined to move fast enough to toss out Trumps conviction before the election, Trumps lawyers would need to formally ask them to do so. So the thing to watch right now is whether Trumps legal team takes the audacious step of filing such a request in the Supreme Court.

As a general rule, each states highest court has the final word on questions of state law, and the Supreme Court is only supposed to get involved in a case if there is some allegation that the lower courts either violated the Constitution or a federal law. This matters because, while there are some plausible legal arguments Trump could raise on appeal, these arguments largely turn on the proper way to understand New Yorks laws.

Trumps strongest argument, for example, turns on the question of whether he was properly convicted of violating the felony version of New Yorks business records law, as opposed to a weaker misdemeanor version. But, while there is genuine uncertainty about how to read this law, the question of how to read a New York criminal statute is a question of state law and thus should be resolved exclusively by New Yorks state courts.

In his Truth Social post, Trump does hint, in his own way, at two legal arguments that could be raised under federal law. He claims that the prosecutor was improperly biased (Radical Left Soros backed D.A., who ran on a platform of I will get Trump) and that the judge is also too biased to hear his case (appointed by Democrats, who is HIGHLY CONFLICTED).

Yet, while it is theoretically possible to challenge a conviction on the grounds that the judge or the prosecutor was unconstitutional biased, as a practical matter these sorts of cases are almost impossible to win.

Before we get into that, its important to note that Trumps allegations against prosecutor Alvin Bragg and Judge Juan Merchan are, to put it mildly, exaggerated. Bragg did not run on an I will get Trump platform. He did, while he was campaigning for his current job, highlight his previous experience bringing civil lawsuits against Donald Trump, but thats because Braggs predecessor had already opened a criminal investigation into Trump. So it appears that Bragg was trying to convince voters that he had the experience necessary to take over supervision of this ongoing investigation.

As a candidate, Bragg also emphasized that he will follow the facts in that investigation and that every case still has to be judged by the facts and I dont know all the facts.

Similarly, its unclear what could be the basis of a recusal motion against Justice Merchan. The fact that Merchan was appointed by Democrats is not a valid reason to remove him from the case, any more than Judge Aileen Cannon, the Trump appointee overseeing a different Trump prosecution, can be removed from that case solely because she was appointed by Trump.

Similarly, some of Merchans critics have questioned a $35 donation the judge made to a pro-Biden organization. This donation is not ideal, but it also is not a basis for recusal. If judges could be forced off of cases solely because of such a small-dollar political donation, many judges would be forced off of countless cases.

Thats because most judges are either political appointees or elected officials, and people with political ambitions donate to political candidates and organizations all the time. Cannon, for example, gave $100 to Republican Florida Gov. Ron DeSantis. Judge Tanya Chutkan, the judge overseeing the election theft case that the Supreme Court has put on hold, made multiple donations to President Barack Obama, in addition to a 2008 donation to Democratic Sen. Kirsten Gillibrand.

So lets walk through what the law actually says about when a prosecutor or judge can be removed from a case because of unconstitutional bias.

For prosecutors, the leading case is United States v. Armstrong (1996). Armstrong did hold that the Constitution places some limits on selective prosecution, such as if a criminal defendant were targeted because of their race or religion. Because the First Amendment typically prohibits viewpoint discrimination, it follows that a politician could not be targeted because of their political beliefs.

As a practical matter, however, Armstrong laid out a legal standard that is almost impossible for anyone challenging an allegedly selective prosecution to overcome. Our cases delineating the necessary elements to prove a claim of selective prosecution have taken great pains to explain that the standard is a demanding one. To prevail, Trump would have to show that similarly situated individuals who do not share his political views were not prosecuted.

Selective prosecution claims are so hard to win that several scholars have argued that no court has ruled in favor of a party claiming they were impermissibly prosecuted because of their race since Yick Wo v. Hopkins (1886). Admittedly, the most recent paper I was able to find examining these cases was published in 2008, so its possible that such a party has prevailed since then. Still, the fact that more than a century passed without such a case succeeding suggests that the bar in these cases is virtually impossible to clear.

There are good reasons, moreover, why it is so hard to prevail in a selective prosecution case. For starters, prosecutors are supposed to be biased in favor of convicting criminal defendants. It is literally their job to do so. Defendants, moreover, enjoy a wide range of protections, such as the requirement that the prosecution must prove their case beyond a reasonable doubt to a unanimous jury. So even if a prosecutor does bring a case for unjust reasons, they dont have the power to convict that defendant on their own.

The constitutional rules governing judicial recusals are a bit more nuanced, but it is still very difficult to remove a judge from a case because of allegations of bias. Just look at Cannon, the Trump appointee who has behaved like she is a member of Trumps defense team in his stolen documents case but who has not yet been forced off the case.

Generally speaking, the Constitution only requires a judge to be removed from a case when they have a financial stake in the cases outcome or when the judge has an unusual personal stake in the case. In Mayberry v. Pennsylvania (1971), for example, the Court held that a judge who was cruelly slandered by a criminal defendant should not preside over that defendants trial for contempt of court because the target of these insults was unlikely to maintain that calm detachment necessary for fair adjudication.

In Caperton v. Massey (2009), the Court did hold that, in extreme cases, campaign donations can justify recusal. But, as the Court emphasized in Caperton, that case involved an extraordinary situation that went well beyond any ordinary case involving a judge who gave or accepted political donations: A wealthy businessman, who had a case pending before the West Virginia Supreme Court, spent $3 million to elect a justice who then ruled in favor of the businessmans company.

Thats a far cry from Merchans (or Cannons, or Chutkans) much smaller donations to political causes.

Caperton, moreover, also emphasized States may choose to adopt recusal standards more rigorous than due process requires. The Constitution has very little to say about judicial recusals because codes of judicial conduct are the principal safeguard against unethical judges. But that also means that the US Supreme Court should play virtually no role in policing claims that a state judge is impermissibly biased.

So its hard to imagine a legitimate reason why the Supreme Court might get involved in Trumps New York case.

Given the justices previous behavior in other cases involving Donald Trump, however, we cannot rule out the possibility that they may get involved anyway.

Update, June 5, 10:55 am: This piece was originally published on June 4 and has been updated to clarify the process someone convicted in state court can use to bypass the ordinary appeals process and bring a case directly to the Supreme Court.

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Will the Supreme Court nullify Trump's conviction? - Vox.com

In Both Sides of a Breakup, the Cut talks to exes about how they got together and why they split up. Etta, 36, and Jeff, 38, started a situationship in the Hamptons that didnt translate well to the city.

Etta: We met in the Hamptons when we were babies. It was early summer of 2016.

Jeff: We met out East the summer I turned 30.

Etta: Id been renting the same share-house with the same girls for a few years. I worked in the city during the week and would go out to the house every weekend. We always had our routine: pregame at our place while someone grills, drink a ton, then go out. Every summer, we all had tons of hookups and relationship dramas. It was early in the summer, so we were all like, What trouble will this year bring?

Jeff: I had a sweet place in Amagansett with a few buddies. Ive never been a Hamptons guy could never afford it till now, honestly so I was eager to get into the spirit of things.

Etta: One of my girlfriends, Rachel, doesnt drink, so shes always our driver. I was drinking screwdrivers all night. I remember having a sore throat and thinking the orange juice would be good for me, plus some Titos vodka; I know call it Hamptons math. The girls I was sharing the house with wanted to go clubbing, and even though I hate clubs, I was drunk and always looking for guys, and they easily convinced me to come along.

Jeff: My buddies and I all had some luck that year workwise. I sold a TV show that Id been writing for a few years while working in the fintech industry. My friends had gotten various promotions at their law firms and whatnot. It was a sick rental, and we felt like ballers. I grew up in Florida, so I love beach life.

Etta: Jeffs friends were flirting with my friends. I thought Jeff was the cutest one of all. I liked his height, and he had a quiet confidence that Im attracted to. There was something kind of preppy about him, or maybe he just seemed rich. I remember thinking he was the most promising in terms of finding a future boyfriend. I was really looking for a relationship. Dating was so tiring, and even though I was only 28, I felt ready to settle down.

Jeff: All of Ettas friends were hot. We were like, Jackpot! I remember thinking, Ill take any of these girls home tonight! But Etta was flirting with me the most aggressively. She told me she was a writer, and I was attracted to that because I had just sold that screenplay and my more bro-y guy friends didnt understand my creative side. We bonded about that a little bit, but it was loud, so we mostly just drank and danced.

Etta: He introduced himself as a writer, which I thought was a plot twist. His look screamed lawyer or banker. I was a copywriter at an advertising agency, but I also freelanced for some lifestyle websites.

Jeff: We got hammered. I bought everyone a couple bottles of Champagne at our table. Etta was plastered. She was dancing on the tables, etc. She was clearly a very sexual person.

Etta: I got really drunk. I was afraid to throw up in front of him, so I just left the club, puked on the road, and found Rachel to drive me home.

Jeff: We exchanged info and then she left with some friends; I cant remember the details.

Etta: I was so sick the next day. A hangover plus strep. Later in the day, I saw a DM from Jeff. He remembered my first and last name and found me on Instagram. I was so happy to see that he thought of me, and even though I felt like death, I was smiling from ear to ear. I didnt text him that I was so deathly ill because it just wasnt a sexy thing to say.

Jeff: We started bullshitting via text. Just basics like Where did you grow up? Do you have brothers and sisters?

Etta: Our texts were witty and cute. I was crushing on him pretty hard from the start. And then we spent the rest of the summer hanging out. We hung out the next weekend, just us, and we had sex on our first date. The sex was amazing. I honestly couldnt get enough of it. And we became a couple quickly.

Jeff: We were hanging out all the time. I liked spending time with her. We had an incredible physical connection. Shes a very attractive girl. She always had to go back to the city for her job, which was in an office, whereas I could pretty much work from wherever since my boss gave me a few paid months off to work on the TV development of my series. I would miss her when she wasnt at the beach.

Etta: After all of July and August together, it was clear that we were a couple. I knew we were monogamous because I asked him to be monogamous and he was in full agreement that that was the right move. And as for our official status, I mean, I fully thought we were boyfriend-girlfriend. Its not cool to ask about labels, so I didnt get into specifics with him, but all signs pointed to the fact that we were a couple.

Jeff: Were we sleeping with other people? No. She asked me not to sleep with other girls if we were going to be in an intimate relationship. I respected that. Were we a serious couple? Unclear. Truthfully, it was always a summer fling for me. My career was more important than anything. If my TV series took off, Id probably have to move to L.A. If it didnt take off, I had enough momentum to take on other projects in that world. My love life was secondary, or even third or fourth, to anything else. I was really young and hungry careerwise!

Etta: So its September and everyone is moving back to the city, and Im excited to see Jeff more and in my real life, not fantasy Hamptons life. A couple of my friends ended up dating a couple of his friends, and we had a little crew to start the fall with. I really liked Jeff. He was kind of detached emotionally and really focused on his work, but behind closed doors he was sweet and affectionate. He texted and called all the time. He called me my girl in front of people. I met his parents, who were visiting from Florida. They were super-nice but definitely into Donald Trump being the next president. I saw it as a small red flag but didnt think much about it. I also believed there was no way in hell hed get elected, so it seemed like a moot point. They also made an off-color joke about my skin color (Im half-Filipino). But parents can be stupid. It was fine.

Jeff: Oh yeah, my parents have been Trump supporters from the start. We dont agree on politics, but I understand where theyre coming from. Theyve worked unbelievably hard for their modest salaries, and they dont want to give it up to lazy people I mean, thats how they see it, not me. Im a liberal guy, and I would never vote for Trump, but back then I kind of admired the balls on him. I was entertained by his antics, shall we say. I was also very ill-informed. Now I recognize that hes a sociopath.

Etta: Everything fell apart at once. Trump got elected, and I was wrecked over it. At the same time, Jeff found out that his TV series was not happening. He was freaking out. Not in a good way.

Jeff: The producer on my project wanted me to pivot and write it as a feature, not a TV series. I was psyched. Before I knew it, I was writing a movie.

Etta: It felt like Jeff was pulling away. He was never available to hang out. He blamed deadlines and other time crunches. He was totally unconcerned with the fact that Trump got elected. He said I was being annoying about the fact that I felt scared for our country.

Jeff: Im not sure if its PC to use the word, but Etta was being a snowflake. She only wanted to talk about politics and the doom and gloom of our nations future. I wasnt especially thrilled that Trump was elected, but I had so many other things on my mind. It was around this time that I felt the relationship had run its course. She was upset all the time about Trump and politics, and I was somewhere completely different in my headspace. I just wanted to write this movie and keep the career on track.

Etta: Whenever wed hang out in November and December, it was all because of me. Id chase him to make plans, Id make the dinner reservations, or Id show up at his house and basically just fuck him. We were super-disconnected. I felt distraught. First our country was a dumpster fire and then my relationship was drifting away in front of my eyes. Even so, I wanted him to be my boyfriend so badly. I was dead set on it. In hindsight, I dont even know why. He didnt exactly fill my love cup, but I liked the optics of it we were a striking couple with a lot of chemistry and I guess I was also dickmatized. I was so attracted to him.

Jeff: I personally did not think hanging out for a few months warranted a proper breakup, but Etta was relentless about seeing me. I remember she showed up at my house one day after partying with her friends, and she was like, I want to fight for us I was like, There is no us. It was pretty rude of me, but I just snapped. I was like, We arent a thing. Go back to your woke friends still crying about Hillary while their fathers pay their rent. I didnt say that part, but I was kind of thinking it.

Etta: I went to his apartment, all messy and drunk, and begged him to prioritize our relationship. He was so cold. He told me we were never in a relationship. Totally gaslit me. Asked me never to contact him again. I left and just sobbed the entire night and for a few days after.

Jeff: I was really irritated that she kept showing up; it felt a little stalkerish. I just needed to shut it down. It took a while for her to finally go away.

Etta: It took a few months, but finally I stopped thinking about him and then I met someone about a year later. My new boyfriend is a professor of international politics, and Ill tell you right now: He is no fan of Donald Trump theres no gray area around it. I look back and laugh about how desperate I was to make Jeff, a closeted Republican, my boyfriend. I was so desperate and so insecure. Ive had a lot of therapy since then!

Jeff: Im now married. My wife and I are both full-time screenwriters. Weve had a tough year with the strike, and shes trying to get pregnant and yadda yadda yadda, but Im very happy and very much in love. When I think about the Etta situation, it just feels like we were silly and immature. Every now and then, Ill DM her about something shes published or vice versa, and its all good.I wish her only the best.

Etta: I think hes a super-talented writer. Hes finding enormous success, and despite it all, Im rooting for him. He was a real asshole to me when we were dating and I tell him that straight up when we talk but he deserves a happy ending. His wife looks perfect for him. Good for them.

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Both Sides of a Breakup: He Didn't Think Trump Was So Bad - The Cut

Cindy Elgan glanced into the lobby of her office and saw a sheriffs deputy waiting at the front counter. Lets start a video recording, just in case this goes sideways, Elgan, 65, told one of her employees in the Esmeralda County clerks office. She had come to expect skepticism, conspiracy theories and even threats related to her job as an election administrator. She grabbed her annotated booklet of Nevada state laws, said a prayer for patience and walked into the lobby to confront the latest challenge to Americas electoral process.

The deputy was standing alongside a woman that Elgan recognized as Mary Jane Zakas, 77, a longtime elementary schoolteacher and a leader in the local Republican Party. She often asked for a sheriffs deputy to accompany her to the elections office, in case her meetings became contentious.

Hi, Mary Jane. What can I do for you today? Elgan asked, as she slid a bowl of candy across the counter.

I hope youre having a blessed morning, Zakas said. Unfortunately, a lot of people are still very concerned about the security of their votes. Theyve lost all trust in the system.

Id be happy to answer any questions and explain our process again, Elgan said.

Were beyond that, Zakas said. She reached into her purse and set a notarized form on the counter. Elgan recognized it as a recall petition, a collection of signatures from voters who wanted to remove an elected official from office. It had been more than 20 years since the countys last successful recall, and Elgan leaned down to study the form.

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Republican Election Clerk Takes on Trump and His Supporters - The New York Times