Law and Politics

If you can’t win votes, use the courts

Why is everyone so upset about the U. S. Supreme Court’s (SCOTUS) ruling that the President has immunity for official actions? Presidents Biden and Obama need to have the ability to perform official tasks without being prosecuted by some RedState attorney general.

Members of Congress and the federal judiciary also have qualified immunity for official actions. State and local officers also have qualified personal immunity. If their official actions cause harm, the local government is liable instead of the individual. Because the issue of personal immunity for police officers has been changing, one wonders why anyone would be willing to serve in law enforcement.

One of the arguments against immunity tried to rely on prosecutorial integrity. The evidence contradicts that idea. For example, prosecutors, as government agents, are supposed to seek the truth rather than victory. It is in the interest of society that innocent people go free. Information benefiting the defendant is called exculpatory evidence. In Brady v. Maryland, SCOTUS clearly stated that prosecutors must provide this material to the defense.

Samples of the misuse of prosecutorial power for political goals will help us understand the source of concern about the SCOTUS immunity ruling.

One case cost Ted Stevens his Senate seat, gave The Democrats their sixtieth seat, and gave the nation Obamacare. Stevens was falsely accused of taking free home repair services. The prosecution created false evidence. Even worse, despite Brady, they withheld exculpatory evidence. After the trial, the attempt to hold the government lawyers accountable for their Brady violations was called an ”inquisition.” Stevens and his family were never reimbursed for their costs.

The Washington Post used another case to keep both Virginia Senate seats Democratic. Virginia governors are limited to one term. Republican Bob McDonnell was popular and likely to run against Democrat incumbent Mark Warner in 2014, a strong Republican year. McDonnell’s reputation had to be sullied.

McDonnell and his wife were prosecuted for receiving gifts and charged with, among other things, “Honest Services Fraud.” To make a long story short, this is a very vague, highly disputed charge, the use of which did the trick and produced a guilty verdict. McDonnell was convicted, and Warner won. That SCOTUS later unanimously overturned the conviction was irrelevant. The political goal was met, his political career was over, the McDonnells were financially harmed, and, quite probably, a few quality people of the Republican persuasion decided the cost of serving in Virginia politics was too high.

Now, we come to 2024. Again, the goal is to sully a politician’s reputation. The target is Donald Trump. Lavrenty Beria was Stalin’s crony. His promise to Stalin was simple. “Give me a name, and I’ll find the crime.” This is not the American way. Several politicians campaigned on a promise to Beria Trump. Actual crime and criminals are not that important.  Only Trump matters. It was time to “Beria” Trump.

 Let’s start with the fraud case, which is indeed fraudulent. The prosecutor and the judge defamed Trump and the banks. Trump is a businessman who regularly posts collateral, borrows large sums of money, uses those funds for business purposes, and repays the loans with interest.

Banks are in a difficult situation. Reputations are critical. PNC Bank uses the word “boring” to tell customers how safe money placed there will be. Banks who worked with Trump exercised their full fiduciary responsibility, confirmed the value of the collateral Trump offered, and were paid in full. The allegation they were careless is an intolerable slander at the worst time.

The judge picked absurdly low numbers for the valuations of properties to “prove” that Trump and the banks had gotten away with something. Instead, the judge proved the slandered banks should leave New York and that Texas and the new Texas Stock Exchange would be better than New York as a place to do business.

The other New York case produced the “convicted felon” phrase. Judge Juan Merchan and his daughter are up to their eyeballs in donations and connections to Biden and the Democrats, but he can’t find the word “recusal” in his law books. Trump’s lawyers asked for a change of venue because the trial was being held in the deepest of blue areas, but the judge refused.

 Harvard Law Professor Emeritus Alan Dershowitz is one of our leading legal scholars and defense attorneys. He was in the courtroom observing what he saw as appalling judicial conduct and media coverage. When the verdict was announced, Dershowitz described everything wrong and subject to appeal about the indictment and the judge’s closing instructions.

The accounting entries at issue should have been moot due to the statute of limitations. The judge can work around that. Even so, the charges were state misdemeanors. To raise them to a felony, they had to violate Federal election law. Wait! State courts have no jurisdiction over federal law violations. Don’t bother him with the details. The defense wants to call an expert witness on election law. The judge refuses. That will confuse the jury.

Trump’s attorneys hadn’t been provided with a full explanation of the charges when they closed. In closing, the prosecution felt it could provide “expert” information about federal election law. In his jury instructions, the judge said that to convict, they had to tie the bookkeeping to a federal issue, but they didn’t have to agree on the federal matter or record that detail in their verdict.

The New York cases ought to be overturned. Any appellate judge who doesn’t is simply a political hack. It will be safe to do so. As in the Stevens and McDonnell cases, they have done what was intended. Through November, Trump’s opponents can factually state that courts have declared him a fraud and convicted felon. Semi-informed and uninformed voters may be influenced. Partisan media can cooperate in that effort. After that, the judges can pretend to do justice regardless of the election results.

The immunity ruling by the Supreme Court upsets those who would misuse the law this way. They have no reason to worry about prosecutors misusing the courts against a Clinton or Obama. They don’t want SCOTUS to stand in the way when they wage lawfare against Trump or someone else like him.