Category: Law

I need to return briefly to a theme touched on the post immediately preceding this one. The profound dishonesty of the entire conservative movement is embodied by Justice Samuel Alito and encapsulated by something that happened just last year.

For years, it has been conservative dogma – wholly false – that the Supreme Court should be made up of jurists who “call balls and strikes” and do not allow their policy preferences or ideological beliefs to color how they rule on matters of great import for the citizens of this country. That the court should not “legislate from the bench” and merely interpret the Constitution as its drafters intended.

We can call bullshit on this sort of rhetoric by looking at the Court’s conscience-shocking reversal of the Roe v. Wade decision. It is not “conservative” to ignore stare decisis or to literally use the power of the court to strip women in this country of what had been between 1973 – 2022 a Constitutional right to personal privacy.

The author of the majority’s decision was Samuel Alito, who is also the most likely suspect with respect to the early leaking of that shameful screed, unique in that it shrunk rights for women in this country, rather than expanding them. Alito’s decision was released on June 24, 2022.

Literally a month or so later, Alito gave a speech in Rome, Italy wherein he mocked foreign criticism of the Dobbs decision. That speech was given at an event organized by Notre Dame University Law School’s “Religious Liberty Summit”. I’m sure it was all about religious liberty for Muslims and Jews and Hindus and Buddhists, what with it being a speech by a Catholic justice hosted by a Catholic school in Rome.

It also seems hypocritical for a jurist-for-life who is supposed to be somehow above politics – at least in the fairy tales they told us in school – to opine on matters of current political events. Or to whine so shrilly about criticism leveled at him.

The part that is fundamentally corrupt has to do with the fact that Notre Dame’s Religious Liberty Initiative invited Alito and paid for his and his wife’s travel to – and lodging in – Rome. Imagine that! An all-expenses paid trip to the Eternal City! Now, consider that Notre Dame’s Religious Liberty Initiative filed an amicus brief in the Dobbs case, arguing for the outcome that Alito delivered.

This wasn’t a scholarly invite. It was a payoff. It was a transaction.

The Leonard Leo coup has seen its first major success. Gutting affirmative action in college admissions – that’s low-hanging fruit. For decades, movement conservatives have focused their efforts on manufacturing an artifically biased right-wing Supreme Court in order to reach the goals they cannot accomplish through electoral politics.

The movement conservative right-wing Supreme Court – completely out-of-touch (by design) with the people of this country, have today gutted our entire civil rights infrastructure. It is no surprise or accident that at least two of the Court’s right-wing members maintain a level of ethics and good government one might expect from a Russian oligarch. Alito and Thomas – Leonard Leo’s pets.

It was not too long ago – 60 years – that the Jim Crow South still had legal, institutionalized segregation in public accommodations. Whites-only water fountains, waiting rooms, means of egress, etc.

The pain and anguish and hard work of the ensuing six decades do not matter one whit to a movement hell-bent on ensuring that white elites maintain their slipping grip on power and institutionalizing one specific subset of Christianist ideology on the entire population.

It’s why today’s Republicans are so busily gutting and weakening voting access and rights in a way that is specifically designed to most adversely affect voters whom they perceive to be friendliest to centrism and Democrats. They are a fundamentally anti-democratic coterie of liars, hypocrites, and charlatans.

It is only thus that a contrived, fake “controversy” over a website for a gay couple that never existed could reach the highest court, and that court would rule that it is ok for places of public accommodation to discriminate against a protected class, so long as the discrimination is arguably based on moral or religious beliefs.

Just think! Soon we may have the benefit of living actual history with storefronts in East Aurora or Williamsville peppered with “no gays” (certainly any such establishment would use a stronger, more offensive epithet), or “trans not allowed” or “interracial couples need not apply.” Perhaps we can usher in a return of the Green Book – digitized for our “modern” era – so that LGBTQ couples and people of color can find which places of nominally public accommodation are welcoming to them.

Run a public opinion poll on that and find out whether normal Americans agree with a return to institutionalized segregation and bigotry.

But this post is the principal reason why the Leo Christianist right are having such a lovely time and a field day – they’re making the right people (namely, “libs”) angry. Owning the libs is the central ideological feature of modern conservatism, and nothing makes these snowflakes happier than making sure that any historically marginalized group from black folks to gay folks are spat upon and treated as dirt. They are fighting the war against “woke!” They are battling something they call the “woke mind virus!”

I am not a Christian of any ilk, so perhaps one of you who is can explain to me – reconcile for me – Christian religious doctrine with a political ideology grounded in hatred and cruelty?

Just wait until someone with a business open to the general public decides that their morality dictates that they not serve white heterosexual couples, or conservatives, or people with tattoos or facial hair.

Certainly religious doctrines deserve to be protected by the Constitution, which is why the Court did not – and cannot – force churches or other places of worship to solemnize same-sex unions, and cannot force a religion to recognize or perform such marriages. That is fine. What this right-wing ideology is doing, however, is giving a place of public accommodation the same treatment as a religious organization or facility.

I guess they were right about the arc of the moral universe and its length. Rest assured that history will view this coup-Court as a national embarrassment and disgrace. Someday.

Welcome to the tyranny of the unelected Christianist dictatorship-for-life.

There was a small handful of local lawyers who tried to make a name – and some coin – for themselves by challenging the government’s ability and right to impose quarantines and restrictions during a pandemic emergency. The Covid-19 pandemic killed well over a million Americans, and counting. Covid antibodies helped end the pandemic emergency – whether through infection or injection. Or both.

One of the lawyers in question is the person who penned the thing I reproduce below. It is important to remember that the pro-Covid argument he and others propounded was that the government did not have the right to, e.g., tell kids in school to wear masks, to keep school populations down to enable distancing, or restaurants to require patrons and staff to wear masks when not eating or drinking.

Below is a document that noted local emailer Carl Paladino sent to his broader campaign list. It is a shocking compendium of nonsense masquerading as legal analysis. In order for it to be valid, it would have to ignore and negate literally the entire text of the United States Constitution as adopted in 1789, and its various and sundry Amendments.

This is a Nixonian view of Presidential power – “Well, when the president does it, that means that it is not illegal.”

The fundament of the American Constitution is that the people are sovereign; not any one individual. The entire point of the Declaration of Independence and the American Revolution was to overthrow a corrupt and unfair system whereby the people of the thirteen colonies had little or no say in their own affairs. The Declaration is most remembered for the clause that begins “[w]e hold these Truths to be self-evident…” but the remainder of the document is a list of grievances specifically directed against the King. The Declaration demands that a government be “instituted among Men, deriving their just powers from the consent of the governed.”

The Constitution sets up the framework for the institution of this government. The preamble to the Constitution ironically turns the royal “We” – the majestic plural – on its head with “We, the People.” If you look carefully at George III’s 1763 Proclamation, partially reproduced above, his preferred pronoun was “we.” The same is true of many monarchs.

And so, the entire point of the creation of this republic was to eliminate monarchical rule and to replace it with representative democracy. It was a radically progressive notion at the time, one that Europe took seventy-or-so years to begin to duplicate in earnest.

There is, in the United States, a “presidential sovereign immunity.” In fact, many elected officials and public servants at every governmental level enjoy some level of immunity from legal action. (We prefer to call it governmental immunity because – you guessed it – the people are sovereign). The qualified immunity that an average police officer enjoys is currently a source of debate. Whilenot expressly mentioned in the Constitution, it is agreed that a President enjoys absolute immunity from civil liability – that is lawsuits for money or injunctive relief – for decisions taken while in office. A President is not immune from such liability for pre-office wrongdoing, however.

As to the question of whether a President can be prosecuted for criminality, he cannot, for so long as he holds the office. The method to deal with Presidential illegality is supposed to be impeachment, and after the President reverts to private citizen, he can then be subject to prosecution. The notion of impeachment is seemingly now an anachronism, as it requires elected officials to treat government and their offices seriously. We know now that the Republican Party has devolved into a personality cult that will literally tolerate and uphold any type of illegality from Donald Trump, including an insurrection. While the Parliament of the United Kingdom – including almost all Conservative MPs – take their duties to their government seriously, Republicans do not. Donald Trump was impeached on two occasions – once for threatening to withhold aid to Ukraine if its President did not help him smear Joe Biden, and once for fomenting insurrection. Republicans simply let him get away with it.

The criminality of the Trump Administration is unprecedented in American history and one which the Founders could not reasonably have foreseen. How could a person in the 18th century have envisioned that executive power would be wielded so clumsily and with such malign intent by someone doing, in turn, a bad imitation of late-1980s era John Gotti or Howard Stern.

The federal criminal charges against Donald Trump are set forth here. Aldinger recounts two recent cases, Bruen and Dobbs (both written by Supreme Court Justices who have in recent months been exposed as billionaires’ playthings ). Bruen overturned New York’s handgun registration laws while Dobbs overturned Roe v. Wade, presumably allowing states to ban all abortion in all cases, if they choose. Dobbs in particular has the dubious distinction of being the first Supreme Court decision to take away from one class of people a Constitutional right, which a prior Court had declared to exist.

Everyone knows that allowing any freak to waltz down Madison Avenue in possession of a concealed handgun is exactly what the Framers intended, what with that pesky “well-regulated militia” language being effectively ignored by successive Courts. Similarly, the idea of a right to privacy is very important when, for instance, it works with the First Amendment to prevent disclosure of million-dollar SuperPAC donors, but not at all important when it comes to a woman maintaining control over her own reproductive system.

Aldinger seemingly argues that the President of the United States should enjoy the same sovereign rights and privileges as the “King of England, the King of France, or the Holy Roman Emperor” as they existed in 1789. Aldinger argues that these three monarchs – hereditary heads of state – were “all above the law” and so, too, should the President of the United States, even though he is elected. Aldinger argues that even today, Charles III – the UK’s head of state – enjoys sovereign immunity. But that is because Charles III is, and Louis XVI, and Leopold II were, sovereign monarchs. In the United States, the people are sovereign, and in order to buy into Aldinger’s argument, you have to reject that idea entirely. We in the United States do not have a monarchy or a dictatorship, nor were Presidential powers set up in the Constitution to create a pseudo-monarch to wield supreme executive power by decree. Alexander Hamilton agreed with Aldinger that the President should be a quasi-kingly figure, and the Constitutional Convention rejected this in the 1780s, so why on Earth are we discussing it in 2023?

Aldinger argues that the example of European autocratic monarchies was the norm in 1789, so we must have somehow magically intended to adopt that model ourselves, despite all evidence to the contrary. Although Charles III is the head of state, he is not head of government. In the US, the President is both. France has no king and the Holy Roman Empire no longer exists. Extending Aldinger’s “place yourself in 1789” logic, women cannot enter into contracts or own property. Although women’s right to vote was guaranteed via Constitutional amendment, the Equal Rights Amendment has yet to be ratified.

Aldinger, however, misapprehends the idea of impeachment; he supposes that the sole and exclusive remedy afforded to our democratic republic to deal with a criminal and corrupt President is to impeach, convict, and expel him from office. He argues that impeachment is the sine qua non of any subsequent criminal prosecution – a substantive and procedural prerequisite, “…but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment, and Punishment, according to Law.”

I do not read that passage as a prerequisite because it is not drafted as such. There is no clear language setting forth that conviction on impeachment is a prerequisite to criminal prosecution; instead, they are separate and distinct processes. Impeachment is not a criminal sanction, but a political one – it removes the President from office. There is no fine or imprisonment that accompanies conviction on impeachment. Indeed, there is nothing in the Constitution that immunizes a former President from criminal exposure, whether impeached and convicted by Congress or not.

While Mr. Aldinger deems it necessary to repeat that Charles III has extraordinary rights as King, the Constitution does not “allow the President to give state secrets to anyone with impunity – including to themselves in their capacity of being a private citizen.”

It bears mentioning at this point that Aldinger’s argument about impeachment and sovereign immunity must fail because Donald Trump has not been Emperor-King President since late January 2021. The crimes alleged in the federal indictment all occurred after his departure from office. The allegation is that he illegally retained public documents – many of them classified and secret – without right or authority to do so.

Aldinger goes on to suggest that Trump – as the “sovereign equivalent of a monarch” has the full right to give any state secret to anyone, at any time. This would be true were we not a democratic republic with a system in place of checks and balances. In reality, the Presidential power to declassify is not absolute, is subject to limitation, and can typically only be done via Executive Order, as Trump himself was well aware. An Executive Order from 2009 sets forth the current guidelines for Presidential declassification, and this set of regulations from NARA further sets forth how the process of declassification must be administered. When Presidents declassify documents, some information contained therein may continue to be classified, as seen in these redactions. This is what it looks like when a President declassifies secret information, and it is not done lightly and the idea of a standing order of declassification does not exist in our country.

So, we know that Trump is not a king, and does not possess monarchical, absolute powers. We also know that Donald Trump, as a private citizen, was in possession of numerous materials that should properly have been left with the National Archives or otherwise protected due to their classification, and that Trump repeatedly failed and refused to cooperate with efforts to do that. Aldinger’s proposed scheme would enable the office of President to be a license to commit any crime under the sun, with impunity from criminal prosecution absent the precondition of impeachment, conviction, and removal from office. An outgoing President, he argues, could even pardon himself on his way out of the White House. How little Aldinger thinks about the office of President and our institutions of popular government.

In his text, Aldinger differentiates President Trump from “citizen Trump”, but that’s the whole point of this democratic exercise we’ve endeavored to perfect since the 18th century – the President is just another citizen. He has temporary powers and privileges lent to him through the Constitution – and laws and regulations promulgated thereunder – but he is not above the law.

If, as alleged, Trump retained classified materials that had not properly been declassified, then as a private citizen he had no right to possess them and had a duty immediately to return them. The indictment itself is damning. Others have improperly retained classified information inadvertently, and when discovered they have immediately rectified the breach – Clinton, Biden, Pence. But Trump refused to cooperate and knowingly kept some of America’s most sensitive secrets in his country club hotel/residence.

As mentioned above, Aldinger was big on suing the government for Covid restrictions – he simultaneously thinks the government possesses the powers of a king, but not enough power to take temporary emergency action to protect people from infectious disease. It is a good distillation of modern conservative thought – its “exactly one proposition, to wit: There must be in-groups whom the law protects but does not bind, alongside out-groups whom the law binds but does not protect.” The law protects Trump and MAGA, but does not bind them. Trump can crime all day long with impunity. But were one to apply this reasoning to a Clinton, or even Joe Biden’s private citizen son, the law binds them but ought not protect them. The law binds governments and prevents them from requiring masks and distancing, and ought not protect them. As you would expect, the notion of government being powerless to act during pandemic is ahistorical nonsense.

We know that there is not a low low enough for Donald Trump, and that his depravity and illegality are limited only by his own imagination. That a lawyer would dream up and publish this piece of ahistorical, unsupported, un-American rubbish to justify it can only mean that we have found our next Sidney Powell.