... and Justice for All

Is Justice Kavanaugh Up to the Job?

Evidence is mounting that Brett Kavanaugh is just not up to the job of Supreme Court Justice; see The Supreme Court Has a Clear Intellectual Lightweight on Slate. 

Kavanaugh has the same failings as Clarence Thomas: neither of them ever worked as a real lawyer and so their stuck with their limited experience allowing little appreciation for how their rulings play out and apply (or not) in the real world. Barrett's likely to prove the same but it's too early to tell. 

Robert L. Abell
www.RobertAbellLaw.com

"there exists a threat to the integrity of the judicial proceedings" and that threat is posed by Donald Trump

As the felony criminal trial of Donald Trump approaches he found it necessary to try and intimidate the judge by attacking on social media the judge's daugther including posting photos. There's no defending that kind of conduct, and the arguments offered by Trump's lawyers were properly labeled as "farcical." Trump's point is to intimidate witnesses, to scare them, to cause them to change or withhold their testimony in a way that favors him. He is "a threat to the integrity of the judicial proceedings." 

Look, if you wish, for more lying and whining by Trump. 

Read the Trump a threat to integrity of judicial proceedings order

Robert L. Abell
www.RobertAbellLaw.com

Judge that told defendant he "looks like a criminal to me" should have recused, Sixth Circuit rules

District Judge Stephen J. Murphy of the United States District Court for the Eastern District of Michigan became exasperated with a defendant and remarked:

This guy has got my attention, Mr. Arnone [defense counsel]. What do you want me to do? This guy looks like a criminal to me. This is what criminals do. This isn't what innocent people, who want a fair trial do. He's indicted in Kentucky. He's indicted here. He's alleged to be dealing heroin, which addicts, hurts and kills people, and he's playing games with the Court. Do you agree?

About a year and a half later, after numerous pretrial hearings and proceedings, Judge Murphy presided over the trial where the defendant was found guilty and then imposed a sentence of 127 months. 

The Sixth Circuit ruled that Judge Murphy should have recused, vacated the conviction and sentence and remanded the case for trial before another district judge. First, Judge Murphy's remark that the defendant "looks like a criminal to me" would indicate to a reasonable observer that the judge had prejudged the defendant's guilt based on his physical appearance. Second, Judge Murphy's remarks that "I'm tired of this case" and "I'm tired of this defendant" also indicated prejudgment of guilt. Third, that the defendant went through a series of lawyers did not make Judge Murphy's impatience understandable to the Sixth Circuit, although the government, of course, saw it otherwise:

To the contrary, we do not find the district judge's conduct understandable in the least. The complexity or long duration of a criminal case gives no license to a district court to prejudge the defendant's guilt or otherwise dispose of the case in any manner except through fair proceedings. And if [defendant] was more persistent than most defendants in pursuing his constitutional right to  proceed to a jury trial on the merits, the district judge had ample means available to him to rule on any issues [defendant] raised and to keep the proceedings on track. 

The defendant moved for Judge Murphy's recusal right before his trial started. In fairness to Judge Murphy, he did apologize, more or less, for his earlier remarks and assured the defendant he would get a fair trial. That didn't cut any ice with the Sixth Circuit which observed that Judge Murphy "could have acted sua sponte to address the issue of recusal, or at least to convene a hearing to discuss with the parties the need for recusal." 

The case is United States v. Liggins. See also Appeals court scolds federal judge for saying defendant 'looks like a criminal'; After federal judge says Black man "looks like a criminal to me," appeals court tosses man's conviction.

Robert L. Abell
www.RobertAbellLaw.com

Whatever Happened to Ethics on the Supreme Court? We're Looking at You, Thomas and Alito

Anyone not supremely disappointed by reporting recently on what will be generously labeled the massive, ethical lapses of Supreme Court Justices Clarence Thomas and Samuel Alito should reconsider and a good place to get back on the right track is this guest essay, Does The Supreme Court Realize How Bad It Smells?, in the New York Times by U.S. District Judge Michael Ponsor. Here's a summary of Judge Ponsor's concerns:

The recent descriptions of the behavior of some of our justices and particularly their attempts to defend their conduct have not just raised my eyebrows; they’ve raised the whole top of my head. Lavish, no-cost vacations? Hypertechnical arguments about how a free private airplane flight is a kind of facility? A justice’s spouse prominently involved in advocating on issues before the court without the justice’s recusal? Repeated omissions in mandatory financial disclosure statements brushed under the rug as inadvertent? A justice’s taxpayer-financed staff reportedly helping to promote her books? Private school tuition for a justice’s family member covered by a wealthy benefactor? Wow.

The worst offenders by far have been Thomas and Alito, but they are not alone. Ladies and gentlemen, that's not how it's done.

Robert L. Abell
www.RobertAbellLaw.com

Does presence of a gun inside a vehicle mean that a passenger possessed it?

Does the presence of a gun inside a vehicle mean that a passenger possessed it? No, not without more the Sixth Circuit has ruled in United States v. Wilson (December 6, 2022).

The defendant pleaded guilty to possessing methamphetamine with intent to distribute. The district court applied a two-level enhancement for possession of a firearm during the offense under section 2D1.1(b)(1) of the sentencing guidelines. This was a big mistake and was vacated by the appeals court. 

The defendant was involved in two drug-related incidents. In the first, he was identified as the driver of a car that fled and police later recovered drugs and a handgun from the car. Almost four months later, the defendant was seen exiting the backseat of a vehicle, a Ford F-150, on the driver's side. Meth and other evidence was found on his person. Police found a revolver under the front passenger seat, a handgun in the back pocket of the front passenger seat and a rifle underneath the rear passenger seat, although it was not visible "without first lifting the seat." 

The Sixth Circuit ruled that the district judge clearly erred in finding that the defendant constructively possessed any of the three firearms recovered from the Ford F-150. First, "something more than proximity is required to show constructive possession." Second, a "defendant's mere presence in a car where a gun is found and proximity to a gun are insufficient proof of constructive possession," a quote taken from an earlier Sixth Circuit decision United States v. Newsom, 452 F.3d 593, 609 (6th Cir. 2006). Third, the government "did not present evidence that the rifle was visible or that [the defendant] knew it was under the seat." Finally, there was no other incriminating evidence such as a connection with a gun, proof of motive, a gesture implying control, evasive conduct, or a statement indicating involvement in an enterprise or a statement of ownership is needed in combination with proximity to show constructive possession. 

Circuit Judge John Nalbandian dissented and went far, far out of his way to conjure up some basis to prop up the district court's clearly erroneous finding. One was that even though the district court did not find and the government did not argue in either the district court or to the Sixth Circuit, the enhancement could still be supported by the gun recovered in the first drug-related incident. The main rationale that Judge Nalbandian offered was that the defendant had some ownership interests in the vehicle. That, of course, cut against the defendant's possession of the gun the district court erroneously found and the government argued he possessed involved in the second incident. This "heads I win, tails you lose" logic cannot stand, the majority responded in a pithy footnote, "[e]ither ownership and sole occupancy of a vehicle matters for constructive possession, or it does not." 

Heads the government wins, tails the defendant loses pretty much sums up federal criminal law nowadays. Rare is the instance where it is called out and rejected. Circuit Judge Karen Nelson Moore joined by Circuit Judge Eric Clay deserve special mention for doing so. 

Robert L. Abell
www.RobertAbellLaw.com

Trump, John Eastman and the Crime-Fraud Exception to the Attorney-Client Privilege

The attorney-client privilege is a vital cornerstone of American law. It is founded on the notion that attorney-client communications must be and remain confidential in almost all circumstances, so as to encourage the client to be truthful and transparent to the attorney so that the client might get the best legal advice. One limited exception, however, is where the apparent purpose of the attorney-client communications is to plan or commit a crime; this is known as the crime-fraud exception to the attorney-client privilege. In a thorough, well-reasoned opinion, a federal district judge has ruled that the crime-fraud exception applied to at least some of the attorney-client communications between former President Donald Trump and John Eastman, an attorney and law professor engaged in what even Eastman admitted was a scheme thoroughly unsupported by any valid legal argument or position to obstruct the electoral certification that Joe Biden won the 2020 presidential election. The case is John Eastman v. Bennie G. Thompson, Select Committee to Investigate the January 6 Attack on the U.S. Capitol.

John Eastman is a law professor at Chapman University in California and somehow or another became engaged with former Trump and his efforts to overturn the results of the 2020 presidential election. The suit was an effort by Eastman to block the House of Representatives Select Committee investigating the January 6, 2021, attack on the US Capitol from obtaining emails sent or received by Eastman on his University email account. This particular ruling concerned only 111 documents, all of which were apparently generated between January 4 – 7, 2021.

The court’s opinion includes significant discussion of factual history. It portrays former President Donald Trump as attempting unsuccessfully to first bully the Department of Justice into taking some kind of action to overturn the election results. The court’s opinion describes one of those efforts on January 3, 2021, the day after Trump had telephoned Georgia Secretary of State Brad Raffensberger and urged him “to find 11,780 votes” as follows:

The next day, President Trump attempted to elevate Jeffrey Clark to Acting Attorney General, based on Mr. Clark statements that he would write a letter to contested states saying that the election may have been stolen and urging them to decertify electors. The White House Counsel described Mr. Clark’s proposed letter as a “murder-suicide pact” that would “damage everyone who touches it” and commented “we should have nothing to do with that letter.” President Trump eventually did not promote Mr. Clark after multiple high-ranking members of the Department of Justice threatened mass resignations that would leave the department a “graveyard.”

This comes from sworn deposition testimony by Jeffrey Rosen, the actual Acting Attorney General, and Richard Donoghue, the Acting Deputy Attorney General.

            The same day, January 3, 2021, that Trump abandoned his plan to elevate Jeffrey Clark, Eastman released and later disclosed to the media a purported legal memorandum that the court described as follows:

            On January 3, 2021, Dr. Eastman drafted a six-page memo expanding on his plan and analysis, which he later disclosed to the media. This memo “war gam[ed]” for potential scenarios for January 6, only some of which would lead to President Trump winning reelection. Claiming that “[t]he stakes could not be higher,” Dr. Eastman concludes his memo stating that his plan is “BOLD, Certainly. But this Election was Stolen by a strategic Democrat plan to systematically flout existing election laws for partisan advantage; we’re no longer playing by Queensbury Rules.”

            The next day, January 4, 2021, having abandoned the plan to elevate Jeffrey Clark and Eastman having generated his “war memo,” although it is doubtful that Trump had read it or ever read it, Trump called Vice President Mike Pence to a meeting and tried to bully him to obstruct certification of the electoral count scheduled for January 6. The court describes as follows:

            On January 4, President Trump and Dr. Eastman invited Vice President Pence, the Vice President’s counsel Greg Jacob, and the Vice President’s Chief of Staff Mark Short to the Oval Office to discuss Dr. Eastman’s memo. Dr. Eastman presented only two courses of action for the Vice President on January 6: to reject electors or delay the count. During that meeting, Vice President Pence consistently held that he did not possess the authority to carry out Dr. Eastman’s proposal.

The source of this information is the sworn deposition testimony of Greg Jacob, the Vice President’s lawyer.

Another meeting occurred the following day, January 5, 2021, this one attended by Eastman, Jacob and Short. The court recites as follows:

The Vice President’s counsel and Chief of Staff were then directed to meet separately with Dr. Eastman the next day to review materials in support of his plan. Dr. Eastman opened the meeting on January 5 bluntly: “I’m here asking you to reject the electors.” Vice President’s counsel Greg Jacob and Dr. Eastman spent the majority of the meeting in a Socratic debate on the merits of the memo’s legal arguments. Over the course of their discussion, Dr. Eastman’s focus pivoted from requesting Vice President Pence reject the electors to asking him to delay the count, which he presented as more “palatable.” Ultimately, Dr. Eastman conceded that his argument was contrary to consistent historical practice, would likely be unanimously rejected by the Supreme Court, and violated the Electoral Count Act on four separate grounds.

This description comes from sworn deposition testimony of the Vice President’s counsel, Greg Jacob. It sounds very much like a concession by Eastman that his plan had no legal validity or merit and that, therefore, perhaps the most “palatable” course for the Vice President to take so as to not outright violate the law would be to delay.

Apparently seeing that the efforts had not brought Pence around, Trump resorted to public bullying and attempted coercion the next day, January 6, 2021. The court recites:

Despite receiving pushback, President Trump and Dr. Eastman continued to urge Vice President Pence to carry out the plan. At 1:00 a.m. on January 6, President Trump tweeted, “If Vice President @ Mike Pence comes through for us, we will win the Presidency … Mike can send it back!” At 8:17 a.m., the President tweeted again, “States want to correct their votes … All Mike Pence has to do is send them back to the states, AND WE WIN. Do it Mike, this is a time for extreme courage!”

Following his tweets, President Trump placed two calls to Vice President Pence directly. After not being able to connect with the Vice President around 9:00 a.m., they spoke at approximately 11:20 a.m. Vice President Pence’s National Security Advisor General Keith Kellogg, Jr. was present and described President Trump as berating the Vice President for “not [being] tough enough to make the call” to delay or reject electoral votes.

Not long after this, both Eastman and Trump spoke to the crowd assembled around the White House. Both told the crowd that Pence had the legal authority to reject the electors and President Trump incited and urged the crowd to go down to the Capitol building and do something to make Pence come around. The court quotes Trump as follows:

Now, it is up to Congress to confront this egregious assault on our democracy. And after this, we’re going to walk down, and I’ll be there with you, were going to walk down, were going to walk down … [W]e’re going to try and give our Republicans, the weak ones because the strong ones don’t need any of our help. We're going to try and give them the kind of pride and boldness that they need to take back our country. So let’s walk down Pennsylvania Avenue.

Trump, as we know, was successful in inciting crowd to storm the Capitol building and watched it unfolding on television with the rest of the nation. He was unabashed, as the court noted:

Even as the rioters continued to break into the Capitol, President Trump tweeted at 2:24 pm: “Mike Pence didn’t have the courage to do what should have been done to protect our Country and our Constitution, giving States a chance to certify a corrected set of facts, not the fraudulent or inaccurate ones which they were asked to previously certify. USA demands the truth.”

During the riot, Greg Jacob, the Vice President’s counsel, finding himself and the other public officials endangered by the attacking mob emailed Eastman as follows:

“… thanks to your bullshit, we are now under siege.”

The court noted that Eastman had asserted his Fifth Amendment privilege against self-incrimination against producing any documents requested by the Select Committee and had asserted his Fifth Amendment privilege 146 times during his deposition.

As to application of the crime-fraud exception, the court considered whether President Trump and lawyer Eastman appeared to have committed three offenses: (1 obstruction of an official proceeding – Congress’ certification of the electoral votes on January 6, 2021 – in violation of 18 U.S.C. § 1512(c)(2); (2) a conspiracy to defraud the United States by interfering with the election certification process in violation of 18 USC § 371; and, (3) common law fraud in connection with the efforts of the president and his campaign to overturn the 2020 election results. The first two are the most convincing of these and the most important, since they are federal criminal statutes.

The key to the court’s analysis of the apparent 1512 violation is the analysis of “corrupt intent.” 1512 isn’t a strict liability offense; in other words, President Trump had to likely know “that the plan to disrupt the electoral Count was wrongful [.]” The court concluded this evidence was present based on the absence of any legal or factual justification or basis for the plan stating as follows:

President Trump and Dr. Eastman justified the plan with allegations of election fraud – but President Trump likely knew the justification was baseless, and therefore that the entire plan was unlawful. Although Dr. Eastman argues that President Trump was advised several state elections were fraudulent, the Select Committee points to numerous executive branch officials who publicly stated and privately stressed to President Trump that there was no evidence of fraud. By early January, more than 60 courts dismissed cases alleging fraud due to lack of standing or lack of evidence, noting that they made “strained legal arguments without merit and speculated of accusations” and that “there is no evidence to support accusations of voter fraud.” President Trump’s repeated pleas for Georgia Secretary of State Raffensberger clearly demonstrate that his justification was not to investigate fraud, but to win the election: “So what are we going to do here, folks? I only need 11,000 votes. Fellas, I need 11,000 votes. Give me a break.” Taken together, this evidence demonstrates that President Trump likely knew the electoral count plan had no factual justification.

The plan not only lacked factual basis but also legal justification. Dr. Eastman’s memo noted that the plan was “BOLD, Certainly.” The memo declared Dr. Eastman’s intent to step outside the bounds of normal legal practice: “we’re no longer playing by Queensbury Rules.” In addition, Vice President Pence “very consistent[ly]” made clear to President Trump that the plan was unlawful, refusing “many times” to unilaterally reject electors or return them to the states. In the meeting in the Oval Office two days before January 6, Vice President Pence stress his “immediate instinct [] that there is no way that one person could be entrusted by the Framers to exercise that authority.”

The court also pointedly rejected the argument that any good faith belief regarding the merits or validity of Eastman’s legal theory or belief in the unconstitutionality of the Electoral Count Act excused the obstruction:

Disagreeing with the law entitled President Trump to seek a remedy in court, not to disrupt a constitutionally-mandated process. And President Trump new how to pursue election claims in court – after filing and losing more than sixty suits, this plan was a last-ditch attempt to secure the Presidency by any means.

On much the same grounds, the court concluded there was an apparent violation of 18 U.S.C. § 371.

Additional coverage found here: Federal Judge Finds Trump Most Likely Committed Crimes Over 2020 Election; Trump "Likely" Committed Crimes Trying to Stay in Power, Judge Says in Record Dispute. 

Robert L. Abell
www.RobertAbellLaw.com

 

"and the ladder of law has no top and no bottom..."

Judges sometimes do not allow a fair hearing and do not fairly consider the arguments of the parties' as shown in this colloquy reported by the Kentucky Court of Appeals:

During the hearing before the trial court, counsel for Appellees argued extensively. When counsel for [appellant] stated that he had not had an opportunity to make his argument, the following discussion ensued:

Counsel: I have an argument to make and I've not been able to make it. I know you need to leave, but ...

Court: I've heard-I understand the argument. Okay?

Counsel: But I haven't made it, Judge.

 

And so it goes.

 

Robert L. Abell
www.RobertAbellLaw.com

Senator McConnell and Other Republican Senators File Brief Supporting Admitted Liar

Our senior Senator, Mitch McConnell, has taken up the cause of an admitted liar and, along with other Republican Senators, filed a brief on the liar's behalf. The disgraced Michael Flynn is the beneficiary of this effort. Here's the Brief; read it and choke on it. Who knew these Senators had so much concern and time to take up for an admitted liar.

Robert L. Abell
www.RobertAbellLaw.com 

A Step Toward Equal Justice Under Law; The Case for a Defender General

The Department of Justice and the Solicitor General's office represent the United States government in criminal cases in the Supreme Court. But there is no similar office that represents criminal defendants before or in the Supreme Court. Does this absence raise an impediment to equal justice under law? A good case for a Defender General's office is made by two law professors, Daniel Epps of the Washington University School of Law and William Ortman at Wayne State University, in The Atlantic: One Change That Could Make American Criminal Justice Fairer.

Robert L. Abell
www.RobertAbellLaw.com

 

Injustice and Trump's Justice Department

Sometimes someone else says it better, this time it is the editorial board of the Washington Post summing up the Justice Department under President Trump, Convicted for Leaving Water for Migrants in the Desert -- This is Trump's Justice:

That is a snapshot of twisted frontier justice in the age of Trump. Save a migrant’s life, and you risk becoming a political prisoner. Kill a Mexican teenager, and you walk free.

And so it goes.

Robert L. Abell
www.RobertAbellLaw.com

Use of a Cass Gilbert Desk, $2764.18 and Three Lies; the Federal Indictment of West Virginia Supreme Court Justice Allen Loughry

A federal indictment unsealed today reveals that the career of West Virginia Supreme Court Justice Allen Loughry is in ashes and for the following, at least according to the Indictment: use of a Cass Gilbert desk (for about four years), $2764.18 and three lies. I got interested in this because news stories mentioned Cass Gilbert, who is the architect of one of my most favorite buildings in New York, the Woolworth Building, which I could see from my office in the old Legal Aid building, and the West Virginia Supreme Court, which some years ago caused our United States Supreme Court to rule that in some instances campaign contributions and expenditures for a judicial candidate can be so shockingly excessive that they're just too much to let slide, Caperton v. A.T. Massey Coal Company. 

First, the most interesting part: Cass Gilbert. Gilbert, as the indictment recites, was "a noted and nationally-known architect who designed many prominent buildings in the United States, including the United States Supreme Court building in Washington, DC, the Woolworth Building in New York City, and the State Capitol of West Virginia." Gilbert also designed the Chamber of the West Virginia Supreme Court and selected or approved furnishings for the Capitol including five desks used by the then members of the West Virginia Supreme Court, desks that became known as the "Cass Gilbert" desks; the Cass Gilbert "desks were well known by employees of the Supreme Court and were valued for their craftsmanship and historical significance." No doubt.

Allen Loughry was elected to the West Virginia Supreme Court in 2012. Some few years earlier he authored and published a book titled Don't Buy Another Vote, I Won't Pay for a Landslide: The Sordid and Continuing History of Political Corruption in West Virginia, which, according to the indictment, recites "a lengthy catalogue of crimes committed by West Virginia public officials, including judges and other elected officials." 

It appears that things began unraveling for Justice Loughry based on his use of some of the state fleet vehicles. "On August 25, 2016, one of the Justices of the Supreme Court wrote memoranda to the Administrative Director of the Supreme Court, asking very specific questions about instances when Loughry had reserved a Supreme Court vehicle in 2013-2016," the indictment recites. Loughry, who received the memo, responded with his own missive "questioning vehicle usage by other Justices" and asserting that his own use of state vehicles had been related strictly to court business. It appears that the Justices convened the following month, September 2016, to discuss a formal policy regarding vehicle usage but did not formulate or issue any policy.

The matter lay apparently fallow for about a year until Fall 2017 when "news media in Charleston, West Virginia began investigating and reporting about, extraordinary spending by the Supreme Court." These reports continued apparently for some time with a lot of snooping around, snooping that discovered a missing leather couch. The indictment recites:

    43. In the midst of the reporting about questionable spending by the Supreme Court, the news media reported on November 26, 2017, that a leather couch was missing from the Supreme Court's offices in the State Capitol. The next day, on November 27, 2017, defendant arranged for Supreme Court employees to remove a leather couch from his home in Charleston and return it to the Supreme Court.

    44. Three days after having the leather couch removed from his home and returned to a Supreme Court warehouse, defendant arranged for have Supreme Court employees return to his home to remove the Cass Gilbert desk that had been in his home for more than four years.

Prior to having the couch and Cass Gilbert desk returned, the indictment alleges that Justice Loughry took some proactive diversionary steps: he met on November 20, 2017, with "a Special Agent of the FBI, a representative of the United States Attorneys office for the Southern District of West Virginia, to report his own concerns about spending by other Justices of the Supreme Court and the former Administrative Director that he believed was unauthorized or otherwise inappropriate." And so, "following the meeting, the FBI in the United States attorneys office initiated a criminal investigation into the possible misuse of state funds by members of the Supreme Court to determine if any federal crimes had been committed and if so, by whom."

There are 22 counts in Loughry's indictment. Three regard fraudulent claims for mileage reimbursement in instances in which Loughry used a state vehicle, 14 regard instances in which Loughry allegedly used a state vehicle for personal business and two regard the payment made ($836) to a moving company by the state to move the Cass Gilbert desk from the Capitol building to Loughry's home. These claims come to a grand total of $2764.18. The remaining charges arise from alleged lies to the FBI and a witness tampering charge. 

I can't find a picture of a Cass Gilbert desk but here are some of his buildings:

 

Cass Gilbert buildings

• 
• 
• 
• 

 The above are going clockwise: the Woolworth Building, New York; Minnesota State Capitol, St. Paul; Finney Chapel, Oberlin College; Detroit Public Library.

Robert L. Abell
www.RobertAbellLaw.com