Supreme Court Cautious Over Claim of Absolute Immunity for Trump

WASHINGTON -- Comments from Supreme Court justices Thursday indicated Donald Trump is likely to face criminal and civil charges despite his claim of immunity while he was president.

Trump’s efforts to overturn the 2020 presidential election led to felony charges against him that include obstructing an official proceeding and conspiracy to defraud the United States.

He also is being sued by police officers and members of Congress who were in the Capitol when it was invaded by rioters on Jan. 6, 2021.

Most of the Supreme Court justices expressed concern about how a lack of accountability by the president could lead to irresponsible and even criminal behavior, perhaps including bribery and attempts to overthrow the government.

Conservative justices added that an additional risk is that presidents could endure reprisals from adversaries for their policy decisions unless they have immunity for their official acts.

"The concern going forward" is that when presidents could be prosecuted, "it's not going to stop," said Justice Brett Kavanaugh.

Before the attorneys’ arguments Thursday, Trump said in a media interview, “A president has to have immunity. If you don’t have immunity, you just have a ceremonial president.”

So far, he has lost in two previous federal court decisions in Washington, D.C.?

Both the district court and the court of appeals said Trump’s interference with vote counts after the election and inciting insurrectionists on Jan. 6 to prevent Congress from certifying Joe Biden’s victory were not “official acts” of a president.

As a result, he should be personally liable for both criminal charges and lawsuit damages, the lower courts ruled.

Michael Dreeben, a Justice Department lawyer, made a similar argument when he said, “Such presidential immunity has no foundation in the Constitution.”

The absolute immunity Trump seeks could lead presidents to get away with murder and sedition, he said.

Trump attorney D. John Sauer said adequate controls over the president’s behavior already exist.?

Congress could impeach misbehaving presidents, remove them from office or use legislative action to invalidate their unauthorized actions, he said.

"If a president can be charged, put on trial and imprisoned for his most controversial decisions as soon as he leaves office, that looming threat will distort the president's decision making precisely when bold and fearless action is most needed," Sauer added.

Conservative justices showed only guarded agreement with the idea of broad presidential immunity.

Justice Samuel Alito asked, "If an incumbent who loses a very close, hotly contested election knows that a real possibility after leaving office is not that the president is going to be able to go off into a peaceful retirement but that the president may be criminally prosecuted by a bitter political opponent - will that not lead us into a cycle that destabilizes the functioning of our country as a democracy?"

He also asked whether the absolute immunity Trump sought was necessary to protect "the proper functioning of the presidency," or whether a lesser form of immunity would be adequate.

The liberals, such as Justice Elena Kagan, asked Trump’s attorney about scenarios he believed represented official acts of presidents that should be granted immunity.

"If a president sells nuclear secrets to a foreign adversary, was that immune?" Kagan asked.

She also asked, "How about if the president orders the military to stage a coup?"

The Supreme Court normally would release its decision in June but has indicated it might take longer in Trump’s case because of the upcoming presidential election in November.

If the Supreme Court rules before the election, Trump could be put on trial for election interference, nearly guaranteeing he would lose the election. If Trump’s lead in the polls continues to an election victory for him, he could grant himself immunity under authority of the presidency.

For more information, contact The Legal Forum (www.legal-forum.net) at email: [email protected] or phone: 202-479-7240.

Trump’s New York Criminal Trial Could Provide D.C. Lawsuit Evidence

The riveting evidence being presented against former President Donald Trump this week in a New York court could affect civil proceedings pending against him in Washington, D.C.

Prosecutors in the New York state trial are alleging Trump paid an adult film actress $130,000 in hush money to cover up a sexual affair then conspired to conceal the business records.

Manhattan District Attorney Alvin Bragg and his staff are presenting evidence of a series of previous court rulings against Trump.

They include a $464 million civil judgment against him for fraud after incorrect valuations of his property and $88 million in compensation a court ordered him to pay after sexual abuse and defamation lawsuits filed by journalist E. Jean Carroll.

Although evidence from other court cases normally would not be allowed as hearsay, Bragg’s staff appears to be trying to prove a recurring pattern of behavior culminating in the porn star Stormy Daniels criminal charges.

The Federal Rules of Evidence grant an exception on admissibility for habit or recurring pattern of behavior evidence that could demonstrate a defendant’s intent.

Bragg appears to be trying to show Trump’s tendency toward falsehood, similar to the allegations the plaintiffs are making in their lawsuits in Washington.

Trump has denied he tried to instigate the Jan. 6, 2021 riot at the Capitol that led to police officers being injured.

The officers, Democratic lawmakers who were in the Capitol and their families are suing Trump on a variety of civil claims.

Trump’s attorneys petitioned U.S. District Court to hold off on the lawsuits, arguing they should be delayed until separate criminal charges in Washington accusing Trump of inciting the insurrection are resolved.

Continuing with the lawsuits could reveal his court strategy for his Washington criminal case, thereby impairing his right to defend himself properly, the defense attorneys argued.

Judge Amit Mehta ruled the lawsuits can continue.

His ruling said that while "both cases center on the former President's actions in the lead up to and on January 6, 2021," the "Defendant overstates the significance of that factual overlap in the present posture of these matters."

For more information, contact The Legal Forum (www.legal-forum.net) at email: [email protected] or phone: 202-479-7240.

Nonprofit Sues D.C. for Education Rights of Jailed Students with Disabilities

Imprisoned juveniles with disabilities are suing the District of Columbia for allegedly failing to provide them with the education they are due under federal law.

They claim a violation of the Individuals with Disabilities Education Act.

The class action lawsuit names as defendants the D.C. Public Schools, the city’s Office of the State Superintendent of Education and the Federal Bureau of Prisons.

The lawsuit was filed on behalf of two imprisoned high school students by the Washington Lawyers’ Committee for Civil Rights and Urban Affairs and the law firm of Nixon Peabody LLP.

“The District of Columbia and the [Bureau of Prisons] have known for years that these students have a right to special education and related services,” said Brian Whittaker, a Nixon Peabody partner. “It is time to finally ensure that these students receive the education to which they are entitled.”

Part of the problem is that the District of Columbia does not have a state prison. If the juvenile inmates were imprisoned in Maryland or Virginia, the states have programs to offer them education based on their special needs.

Between 40 and 60 special needs juveniles from Washington, D.C., are being deprived of adequate education, according to their attorneys.

While they are incarcerated by the Bureau of Prisons, there’s “no high school diploma program that they can receive special education and related services that they’re entitled to, to access their education,” said Marja Plater, senior counsel at the Washington Lawyers’ Committee for Civil Rights and Urban Affairs.

In 2018, the nonprofit School Justice Project also sued to protect educational rights of incarcerated juveniles. A federal judge ruled the District of Columbia must provide them with education.

“The District’s been on notice since that time, and just hasn’t made the arrangements to provide this education to these young people,” Plater said.

District of Columbia officials declined to comment on the pending litigation.

For more information, contact The Legal Forum (www.legal-forum.net) at email: [email protected] or phone: 202-479-7240.

Biden Signs Reauthorization to Spy on Foreigners Without a Warrant

President Joe Biden signed legislation this week that continues a controversial program allowing warrantless spying on foreigners suspected of illegal activity.

Most controversial is a provision that eliminates the need for warrants to search through U.S. citizens’ data gathered while surveilling foreign suspects.

Congress not only approved a two-year extension of the Foreign Intelligence Surveillance Act but also broadened the authorization to use a greater variety of electronic spying.

The electronic surveillance without warrants can be done only on persons located outside the United States. The U.S. citizens’ data can be collected through international communications.

The measure passed with support from both Democratic and Republican leaders.

Senate Majority Leader Chuck Schumer, D-N.Y., said just before the vote that FISA is “an important part of our national security to stop acts of terror, drug trafficking and violent extremism."

Senate Minority leader Sen. Mitch McConnell, R-Ky., tried to address the privacy concerns of civil rights advocates when he said the law’s extension contains "scores of important reforms to the FISA process that will enhance accountability at the FBI and protect the rights of American citizens."

He described criticisms of FISA as "fear-mongering.”

Many concerns about FISA resulted from a Foreign Intelligence Surveillance Court decision last year saying the law’s warrantless surveillance authorization was abused by the FBI about 278,000 times in 2020 and early 2021 to spy on Americans.

Sen. Ron Wyden, D-Ore., who advocated for greater privacy protections, described the FISA extension as dangerously intrusive, possibly creating liability risks for telecommunications companies.

"Any company that installs, maintains, or repairs wifi or other communications systems in any American business, home, or church can be dragged into this," Wyden said. "So can any other company that provides a service that gives its employees access to any communications equipment, including a server, a wire, a cable box, a wifi router, a phone or a computer."

For more information, contact The Legal Forum (www.legal-forum.net) at email: [email protected] or phone: 202-479-7240.

Justice Dept. Fires Back at Republicans Who Want Tape from Biden Interview

The Justice Department is putting up stiff resistance to congressional Republicans’ efforts to obtain a copy of a special counsel’s interview of President Joe Biden.

House Republicans are threatening to hold Attorney General Merrick Garland in contempt of Congress unless he gives them a tape recording of the interview in which the president discussed mishandling classified documents.

They sent Garland a subpoena that set a deadline of last week to comply.

The Justice Department responded with a sharply worded letter to leaders of congressional committees who made the threats. The letter said the department already has complied with the four parts of the congressional subpoena.

“The Committees’ reaction is difficult to explain in terms of any lack of information or frustration of any informational or investigative imperative, given the Department’s actual conduct,” the letter says. “We are therefore concerned that the Committees are disappointed not because you didn’t receive information, but because you did.”

The special counsel spent a year investigating allegations Biden improperly handled and retained classified documents. Some of them were found in his garage in Delaware.

The special counsel’s report indicated the absent-minded 81-year-old president did mishandle the documents but not through any intent that should lead to criminal charges. Part of his evidence was based on hours-long recorded interviews with Biden.

The Justice Department letter cautioned the Republicans, saying, “We urge the Committees to avoid conflict rather than seek it.”

The Republicans, such as Rep. James Comer of Kentucky, hinted they would not let the Justice Department letter be the end of the dispute.

The Biden administration’s Justice Department? “does not get to determine what Congress needs and does not need for its oversight of the executive branch,” Comer said.

The next step is likely to be either litigation or an executive order from the president to resolve lingering issues.

For more information, contact The Legal Forum (www.legal-forum.net) at email: [email protected] or phone: 202-479-7240.