ACCESS TO JUSTICE – PART 1A – THE THREE-TIERED JUSTICE SYSTEM
Prior to the Trump Legal Follies, anyone whose IQ score cracked double digits and spent maybe 30 seconds pondering the words “equal justice” knew that “justice” was anything but “equal.” We know that some people who because of their gender, race, position in the community, and most importantly wealth are treated better than others without those defining attributes.
As George Orwell famously didn’t say, all litigants are equal, but some litigants are more equal than others.
Each day, we read about or know people who live charmed lives. There’s the “Teflon Don,” John Gotti, who after years of being acquitted of a variety of crimes in the face of overwhelming evidence was ultimately imprisoned for life for crimes he committed.
There’s Martha Stewart who was briefly incarcerated for insider trading. Celebrities like Mathew Broderick and Mark Wahlberg whose actions caused bodily harm to others and in Broderick’s case death get off with a fine or a few weeks in jail.
And then there’s O.J. Simpson who was accused of a double homicide. He assembled a “dream team” and walked out of court after delivering the performance of a lifetime - ill fitting gloves category.
But unless I miss my guess, at the top of the list of those who averted, if not perverted, the course of justice will be Donald John Trump. His history of stiff-arming tradesmen attempting to enforce contracts is legendary.
Trump ignored two settlement agreements with HUD when he (and daddy Fred) was found to have racially discriminated against persons of color who sought to rent in Trump owned buildings.
Trump even stooped so low when he used his family charitable foundation to launder money to avoid taxes. For that, instead of going to jail, he is barred from operating a charitable foundation in New York State.
Any penalty imposed for these, and numerous other transgressions, was small beer in the overall scheme of his life. Trump saw himself as too rich, too shameless, and too narcissistic for any penalty to change his behavior. Each attempt to hold him accountable, and each avoidance of any meaningful accountability for those transgressions, only confirmed his belief that he alone was above the rules and norms that bind us together.
Donald Trump thought he was untouchable. And then as a result of the ultimate of history’s epic practical jokes, Trump was elected president in 2016.
History’s epic practical joke was exceeded only by the epic civic obscenity of the insurrection of January 6, 2021.
And then accountability reared up! Kinda, sorta. Maybe. We’ll see.
I’m not going to belabor the 88 criminal felony counts facing Trump. Nor will I harp about the three civil matters for which he was found liable and fined over $500 million, not counting pretrial interest. If you’ve followed these cases, there’s no need; if you haven’t, there’s no point. You’re welcome.
Nor will I opine on whether about Trump’s guilt or innocence. Let’s just say that his attorneys would never pick me as a juror.
Instead, I want to focus on the damage, perhaps the lasting damage that these cases have had and will have on our judicial institutions and the rule of law. When Trump’s not so humble Mar-A-Lago abode was visited one morning by the feds with a search warrant, I wrote of my concerns that unfolding events would leave parts of our system of justice in tatters.
These are cases of first impression. No former president has ever been criminally and/or civilly charged with an array of offenses. That being the case, there is no legal template for dealing with a defendant like Trump.
For instance, how many defendants/respondents attend court proceedings with their own secret service protection detail? Answer: one.
Beyond the accommodations given to Trump (that nobody else would ever get), every media obsession attendant with every courtroom campaign appearance is the distortion of the law – its substance, perception, and its application.
For example, how many defendants are allowed to give press briefing and deliver campaign speeches, all televised on many cable and internet networks, from inside the courthouse, just feet outside of the courtroom? These instances are too numerous to recite in total.
These Trump performances, both inside and outside the courtroom, convey to us all that the rule of law and judicial processes are shams to be disrespected. Thus, I’ll be selective in illustrating my point. Even then, the problem I have is where to start.
Let’s start in a New York Federal District Court. Over the past several months, Trump has been found liable for two separate counts of defamation. In New York State Superior Court, he was found guilty of five counts of business fraud. In many ways this was a perfect outcome – Trump was adjudicated for being a loud-mouthed liar.
The defamation action was the result of a woman publicly disclosing that Trump had sexually assaulted in a department store dressing room. Not to make light of this but given his history, that was such a Trump thing to do.
Because the statute of limitations on the assault had run out, all the victim, E, Jean Carroll, could do is prosecute the defamation. Upon the jury’s award of $5 million dollars, Trump almost immediately defamed her again. And again. And again. For a stable genius, Trump sure is slow.
Trump’s continued defamatory bloviating prompted a second court action whereupon a jury awarded Ms. Carroll an additional $83.3 million. Combined, the tuition for Trump to learn to keep his big mouth shut, including pretrial interest, was just under $92 million.
Unsurprisingly, Trump failed to learn his lesson causing Carroll’s legal team to contemplate a third defamation action.
Trump is appealing both cases but to do so, he has to post a bond with the court so that in case he fails on the appeal, Ms. Carroll is certain to collect her award. Evidently, being billionaire, Trump was able to obtain an appeals bond from a reputable bond company. This is important so stay with me here.
On to the business fraud case. Trump and his two sons, Uday and Qusay, err … I mean Don Jr. and Eric, were convicted on the aforementioned fraud charges. The prosecution directed by New York State’s Attorney General Letitia James, asserted that the Trump Crime Family defrauded various leading institutions and tax authorities out of somewhere around $300 million.
Once again Trump tried to bring in a circus atmosphere to the proceedings. He mumbled, he grumbled, he even stormed out of the courtroom during the proceedings. He attacked the judge and his clerk. He asserted that the clerk was Chuck Schumer’s girlfriend or mistress. He attacked the families of the judge and clerks.
In short, par for the Doral course. Also par for the course, Trump lost.
The Judge, Arthur Engoron, awarded $354.9 million. With pretrial interest, that comes to over $454 million. Also, Trump Senior is banned from doing business in New York for three years, the boys are banned for two years. Ouchies!
Obviously, Trump plans to appeal. However, there’s that bond thingy mentioned earlier. According to Trump attorneys' filings, Trump had a difficult time finding a bond company that would post his bond. Evidently these companies refused to accept liens against his properties because they couldn’t be sure of their worth. This is where the fraud came back to bite him in the butt!
No, these companies wanted cold hard cash, which Trump apparently doesn’t have! Some billionaire he is. He has been revealed to be a BINO – Billionaire In Name Only.
The New York Appellate Court sua sponte reduced the amount of his bond to $175 million. Why? Two reasons: first, and this is conjecture, he couldn’t get any entity to post the requisite bond so without explanation the court lowered it.
But second, the appellate court was ignorant of the (reported) fact that Trump had arranged to obtain the full amount of the award rendered by the trial court. So instead, Trump obtained a bond from a company that primarily secures auto loans.
However, evidently there’s an issue with the bond! The paperwork filed in support of the bond was returned and the bond was not accepted. First, there was no listing of the collateral provided by Trump to secure the bond. On top of that, it appears that the bond company has insufficient assets to cover the payment if Trump defaults!
Think of it this way: you’re convicted of a financial crime and you want to appeal; the value of the appellate bond is set beyond your available assets; you try your “best” to procure a bond from a reputable company to no avail; you go to the court telling them obtaining a bond in the amount of the trial court’s award is not feasible. If you can’t obtain the bond all your assets will be subject to a judgment lien, perhaps wiping you out.
What does the court do? How do I know, but I’d bet good money that they’d not give you the same consideration that the New York appellate court gave Trump.
As of this writing, the bond has yet to be perfected and accepted, with Leticia James ready to attach Trump’s financial assets and real properties. Stay tuned.
Let’s go to the United States District Court for the Southern District of Florida, home of that fantastical jurist, Aileen Cannon. Before I begin let’s just agree that she will never be seen as an equal of Ruth Bader Ginsburg.
Let’s be frank, she’ll never be the equal of Judge Judy.
If both are the case, then how’d she ever find her way onto the bench? The short version: she graduated magna cum laude from the University of Michigan’s law school, where she joined the Federalist Society (spoilers). After graduation she clerked for an appellate judge in the 8th circuit, after which she took a position as an appellate attorney in the private sector for several years. Finally, from 2013-2020 she was an assistant United States Attorney for southern Florida. She certainly has stellar credentials. Oh, and she was an ardent Trump supporter.
But no matter how you slice it, it’s still better to be lucky than good. Cannon’s luck resulted with her being recruited by Republican officials (specifically “Little” Marco Rubio) to fill a vacancy in the Federal District Court for south Florida. She was vetted and in early 2020, Trump nominated her.
Before we go further, two things to highlight. First, Cannon was a staunch Trump supporter. Second, she was a member of the Federalist Society. Without the imprimatur of FedSoc, she’d probably be working as an appellate attorney for some toney Dade County law firm. As I said, spoilers.
Her luck was evident when she appeared with four other nominees before the Senate Judiciary Committee where she was largely ignored. Senators focused on two nominees and were largely perfunctory with the others. Cannon’s toughest question concerned why she joined FedSoc, to which she responded that she considered herself and “originalist” and “textualist.” Those words were right off the FedSoc website.
[Sidebar: when I was in law school, like many others I was recruited to join FedSoc. For myriad reasons, not the least of which was their dogmatic approach to constitutional interpretation, I respectfully declined. Had I only realized that it could be a vehicle for judicial recruitment…]
For those who don’t know, the Federalist Society is the right-wing, libertarian legal organization founded in 1982. Its avowed mission from its web site: “In its mission and purpose, the Federalist Society is unique. By providing a forum for legal experts of opposing views to interact with members of the legal profession, the judiciary, law students, academics, and the architects of public policy, the Society has redefined the terms of legal debate.”
Yup. I’d like to know when Lawrence Tribe addressed members of FedSoc.
Today, FedSoc is headed by Leonard Leo. Under Leo’s leadership, FedSoc’s intense focus has been to populate the federal district and appellate courts with its members. And under Trump, they were very successful. According to numerous well sourced accounts, Leo had the audacity to supply a list of prospective court nominees to Don McGahn in the Office of Legal Counsel and himself a FedSoc member. Aileen Cannon was on that list. So was the judge, confirmed contemporaneous to Cannon’s confirmation, who first ruled on the mifepristone case, Matthew Kaczmarek. Interestingly, there’s a Nathan Kaczmarek at FedSoc, Vice President & Director of the Practice Groups and Article I Initiative, whatever that is. Interesting that two men, both wildly conservative, approximately the same age, with the same unique last name would be affiliated with FedSoc.
If you want a good read on FedSoc and related groups whose objectives are to dominate the Judiciary in order to advance a cultural and political agenda, read The Scheme by senator Sheldon Whitehouse.
So, between Trump’s electoral loss in November 2020 and the insurrection in January 2021, Cannon’s nomination was confirmed by the senate. Then, with limited judicial experience and all of four minor trials under her judicial belt, she drew United States v. Trump.
From the time that the Trump case landed in Cannon’s court, it’s been one head scratcher after another. In the beginning, Cannon issued definitive motion rulings which caused her to twice be reversed by the 11th Circuit Court of Appeals. The first reversal was pretty direct, the second was a scathing legal bench slap. This has resulted in Cannon refraining to every extent possible from issuing definitive rulings.
Apparently, Cannon’s judicial modus operandi is that if you don’t issue definitive rulings, they can’t get appealed and hence can’t get reversed. And while this may slow the trial process nearly to a screeching halt, inuring to the benefit of the defendant, then evidently that’s a win-win!
Andrew Weissmann, NYU law professor and former federal prosecutor in the Southern District of New York, in a recent interview described Cannon as either incompetent, in the tank for Trump, or both. He said he thinks both. I’m sure he’d be crushed if he knew that I disagree with him, at least to the extent that Cannon’s incompetent. She’s competent enough to rule on motions to extent that they can’t be appealed. Perhaps her competence solely runs to her judicial self preservation.
To say that the documents case is proceeding at a glacial pace would be to overstate the speed of glaciers. In many respects, this case is at a dead stop. In 2023, Judge Cannon tentatively set the date for trial as May 2024. It is now mid-April 2024 and there is no date set. Cannon has recently indicated that the case will not be tried this summer, leaving fall as the earliest possible date.
But I think that there’s something happening this fall that might interfere with any trial. If I could only remember what it is….
That said, the lack of a trial date is no bar to Judge Cannon asking for proposed jury instructions on the application of an inapplicable statute in the Trump case. She wanted both sides to prepare language in proposed jury instructions, addressing two applications of the Presidential Records Act (PRA). The problem is that Mr. Trump is not charged with violating the PRA when he absconded with the presidential papers and headed to Florida. Trump is charged with violating the Espionage Act for his possession of classified documents. Put it more clearly, she was trying to impose a civil statute onto a case brought under a criminal statute.
When Special Counsel Smith politely asked Cannon whether she slept the day the taught law at Michigan, and asked that she specifically abandon any notion that the PRA is even remotely relevant in this case, she demurred claiming that for the time being (the pre-trial phase) she would abandon the PRA but would still delay a final decision until closer to trial.
That assumes there is a trial. But the danger of her not making a definitive ruling excluding the PRA prior to the jury being impaneled, she can use it to acquit Trump (upon the proper defense motion) at the conclusion of the prosecution’s case-in-chief and there’s nothing the prosecution can do about it.
Double jeopardy will have attached.
Maybe she’s not so incompetent after all.
One response that the Special Counsel Smith has is to seek an order of mandamus, ordering Cannon to definitively answer whether the PRA can be used in a criminal Espionage Act case. If ordered and if she then hedges or refuses, Smith may then have grounds to seek Cannon’s removal from the case. After all, it’s not like they’re in the middle of the proceedings where one side or the other would be prejudiced by the jettisoning of Cannon.
Look, it’s no secret that all of Trump’s trials have only one legal strategy, delay. Delay by any means, fair or foul. No hair brained legal theory is too frivolous to assert, and when rejected appealed. Our legal system’s one appeal of right has been abused beyond anything envisioned by the legal community.
It has been Trump’s legal strategy to use the law as a cudgel. After he lost the 2020 election but before the 2021 insurrection, Trump’s legal staff of Rudy Giuliani, Sydney Powell, and Jenna Ellis (self titled the “Elite Strike Force”), along with John Eastman, Kenneth Chesebro, and Jeffrey Clark concocted baseless legal theories unsupported by any fact, all designed to keep Trump in the presidency.
Now in 2024, Trump’s legal strategy is to slow the legal process until after the election, after which, if Trump is elected, he can make all the federal cases go away. And if he loses the election, maybe he can bunk with Putin in a dacha on the Caspian Sea.
While Trump’s Elite Strike Force 2.0 in all his current trials work to exploit every delay tactic, they don’t have to work too hard in Cannon’s court. She has wittingly or otherwise adopted the pace of the proceedings to suit the needs of the defendant.
If you find this difficult to believe, answer this question: in all Trump’s civil and criminal trials, who is the only judge who has not been a target of his vile, often unhinged attacks? In a follow up question: what could the reason possibly be?
And while we’re at it, in defiance of properly issued gag orders, Trump has maligned the integrity of the judges (save for one), the prosecutors, the families of the judges and prosecutors, and court staff. He has done this at rallies, interviews, and his own anti-social media platform.
And in the third day of his Manhattan trial jury selection, Trump has accused prospective jurors as being undercover democratic operatives who lied in order to be selected for the jury. Actually, he reposted on his untruth social a post by Fox News nitwit Jesse Waters, and in so doing adopted it as his own.
He does this for one reason and one reason only. Donald Trump wants to destroy our judicial institutions. He wants to show how impotent the courts are to hold him to meaningful account. He knows that all the courts will do is impose meaningless fines that being a “billionaire” he can absorb.
Trump is laying off two bets. First, Trump is betting that if he mucks up the legal waters, voters will agree that he is being politically persecuted. The second bet is that even if Trump is convicted, and remember that if convicted he’s looking at serious prison time, that he will not ever be incarcerated.
On April 15, the first of Trump’s criminal trials commenced in Manhattan. It is expected to take six to eight weeks to come to verdict. Think end of May, early June. In the event Trump is convicted, expect an appeal that will take 12-18 months.
Ten days later on April 25, the United States Supreme Court will hear oral arguments on Trump’s appeal of the District of Columbia’s Federal District and Circuit Court of Appeals denial of his claims of absolute and complete immunity for anything he did in his official presidential duties.
The Supremes accepted the appeal in February and scheduled oral arguments for two months later. This may sound quick but remember that the Court took 34 days from accepting the appeal to rendering its judgment in Bush v. Gore. When it wants to, the Court can move with great alacrity.
When it wants to…
Thanks to Donald Trump along with his associates, attorneys, enablers, and supporters, forces have combined to conspiren to wreck our last bastion of democracy – the judiciary’s ability to ensure equal justice for all through the impartial administration of the rule of law.
However these cases turn out, there is great danger that a significant portion of the public will see the rule of law to be applied selectively depending on who someone is, the station in life they enjoy, the resources at their disposal, along with their race and gender.
Those who have worked in and studied the application of American law know that the application of law is inconsistently applied. Many have worked to inform about and reform our justice system. Trump has exposed these flaws in stark relief and politicized them for his personal benefit. Trump is a destroyer, not a reformer.
If we survive Trump in 2024, it will be years before our legal system can recover from his attacks.