Dem
47
GOP
53
We are not entirely sure what Donald Trump's batting average in lawsuits is these days, but it's gotta be below .200. Maybe even below .150. There were three substantial stories on the legal front this week, none of them pointing in a direction that is likely to get that batting average up:
Slow Your Rolls: In the latest rebuke of the Trump administration's efforts to obtain state voter rolls, judges have dismissed Department of Justice lawsuits against Wisconsin and Maine. This brings the total won-loss record to 0-8, after similar suits against California, Arizona, Massachusetts, Michigan, Oregon and Rhode Island were dismissed. Judges across the political spectrum have rejected this federal overreach into states' election administration. In Maine, Chief U.S. District Judge Lance Walker, a Trump appointee, ruled that "Under our Constitution, states are the primary regulators and administrators of elections for federal office, unless Congress passes legislation that preempts that framework." In Wisconsin, U.S. District Judge James Pederson, a Barack Obama appointee, held that the Voting Rights Act prohibits this type of request from the federal government.
Our Take: The detailed voter data the feds want contains private information such as birth dates, driver's license numbers, addresses and partial social security numbers. It's clear that Trump's DoJ doesn't want this information for any legitimate purpose, since they haven't identified any. Instead, they are gathering comprehensive information to put into a nationwide database of Americans as a weapon of intimidation and monitoring. This is exactly the type of federal government overreach that conservatives normally get apoplectic about. But apparently, states' rights and individual liberty go out the window, including at the Supreme Court, when their team is running the show. Even if the administration appeals, the information is safe until at least the midterms, so these states that are fighting back have successfully protected their citizens' data for now.
Lemon Law: Journalist Don Lemon, who was indicted in February for allegedly obstructing religious services, is now seeking the grand jury transcripts from his case. His attorneys claim that the recent examples of grand jury misconduct by the DoJ taint the efforts to prosecute Lemon. The motion cites the Broadview Six case, in which U.S. District Judge April Perry excoriated the prosecutors and stated that the presumption of regularity is lost and that the trust between the judiciary and the prosecutors has been "broken." Lemon is arguing that this behavior is now so commonplace that grand jury secrecy should no longer be sacrosanct, because this DoJ is abusing the system and committing serious misconduct.
Our Take: Lemon's case is likely to be dismissed on First Amendment grounds, but if there is also grand jury misconduct, he could file a motion for sanctions and attorneys' fees. This is going to be a serious problem for the DoJ going forward, and not just in high profile cases involving Trump's adversaries. This misconduct will jeopardize legitimate cases against real criminals. To the extent, for example, that Broadview Six prosecutor Sheri Mecklenberg was regularly using improper "vouching," or excusing jurors who refused to indict, judges will have to dismiss those cases, even if they are meritorious. Many of those cases can be refiled, but there could be procedural hurdles, like the statute of limitations, that preclude bringing the case again. So much for being the party that's "tough on crime." That might just come up in some Democratic campaign messaging.
Running Out of "Enemies" to Target: On Wednesday, news broke that Trump victim E. Jean Carroll is being investigated by Andrew Boutros, the Trump-appointed U.S. Attorney for the Northern District in Illinois, the same fellow who was just forced to drop charges against the Broadview Six because the judge discovered significant grand jury misconduct.
Supposedly, this is related to a deposition she took in one of her defamation cases against Trump, where she testified that she wasn't receiving outside help with legal fees. As her lawyer explained, her arrangement was a contingency fee agreement, so she wasn't on the hook for fees unless she won, in which case the fees would be subtracted from the judgment. Her lawyers sought, and received, some help with costs from a non-profit run by Reid Hoffman. Carroll, through her attorneys, clarified that portion of her deposition before signing it, which is common in civil litigation. Trump's attorneys tried to use that seeming inconsistency at trial to undermine Carroll's credibility, but to no avail. Carroll prevailed in both her defamation suits and two courts of appeal upheld the verdicts. Trump has since appealed to the Supreme Court and the case has been listed for consideration and rescheduled by the Court 12 times—it was just rescheduled again on May 27. So, it's unclear when the Justices will actually consider whether to grant certiorari.
Our Take: Illinois? Last we checked this was nowhere near New York, where Carroll lives and where the defamation cases were litigated. This is a clear indication that Acting AG Todd Blanche shopped this around and could only get Boutros to agree to this festering turd of an assignment, perhaps to get himself out of the doghouse after the Broadview Six debacle.
This is 100% unvarnished harassment, intimidation, retaliation and abuse of power. Trump has been after Carroll ever since she beat him in court. And Hoffman has been a Trump critic and target since Trump v1.0. So, why now? It's possible the Supreme Court doesn't have the votes to grant cert and they're just waiting for Associate Justice Clarence Thomas or Associate Justice Samuel Alito to finish an insulting dissent. If someone leaked that bad news to Blanche, and they'd been waiting to go after Carroll until the Supreme Court's decision, they may have seen no more reason to wait. Or maybe they think a criminal investigation will cause the Court to take a second look at the case. Whatever the reason, unless the Court wants to put the final nail in the coffin of its credibility, there's no way they can grant cert now and NOT be seen as part of this concerted governmental retribution campaign against a woman that Trump was found to have sexually assaulted.
As for Blanche, the DoJ claims he's recused from this case, but anyone who believes that, we've got some land in Florida to sell you. This is clearly being pushed from the top and he will claim the credit if she gets indicted, at least to Trump. After his recent screw ups, maybe he thinks this will get him the big chair. Delusion, thy name is Blanche.
Finally, this will not end well for anyone involved—on the government side, that is. Boutros has lost the trust of the federal judiciary and everything his office does will be carefully scrutinized. And Carroll has the resources and some heavy legal muscle behind her to fight back. This is what weaponization of the DoJ looks like—hopefully, she's already put in her application for some of that $1.7 billion slush fund money.
One of the many problems with picking Trump's targets first and then manufacturing some bogus criminal allegations second (a.k.a. "putting the cart before the horse") is that it undermines and jeopardizes the Department's legitimate work in solving and prosecuting real crimes. It drains resources not only through the loss of career, ethical attorneys but also because the attorneys who are left are having to devote so much time trying to justify the unjustifiable. So, they have no time to do their jobs, which is to work on behalf of the American people to keep us safe.
The one silver lining, to the extent there is one, is that this shows that a prosecutor can't just indict a ham sandwich. He or she needs actual evidence and cannot simply be doing the dirty work of a corrupt administration. The reason why it had seemed so easy in the past is because we had an independent Department of Justice with experienced, ethical, career prosecutors who would only bring cases they could win at trial beyond a reasonable doubt. That legitimacy has been lost and these people trying to pass themselves off as prosecutors are going to face increasingly long odds in carrying out Trump's revenge plans and consequences for their legal and ethical violations.
Our legal coverage should pick up even more steam (if that is possible) in the next week or two, because several major Supreme Court decisions are imminent. And no, we don't mean Clarence Thomas' decision whether he will drive his RV to Yellowstone or to the Everglades during the Court's summer break. (L)