Monthly Archives: May 2022

(Photo by Drew Angerer/Getty Images)

It was a weird day in court for Donald Trump. Which is to say, it was a Wednesday, since every courtroom appearance by the famously litigious former president is an occasion for wackassery of one sort or another.

It started with an appearance before Supreme Court Justice Arthur Engoron, in which Trumps attorney Alina Habba tried to convince the court to abatecontempt order finding that her client willfully disobeyed a lawful order of this court and should be assessed a $10,000 daily fine until he complies with discovery. The contempt resulted from Habbas decision to comply with a March 3 discovery stipulation with16 pages of blather restating objections already rejected by the court, plus an affidavit of compliance saying that the requested information was in the custody of the Trump Organization, and so Trump bore no responsibility for turning it over.

In a written order today, Justice Engoron agreed to conditionally purge the contempt provided that Trump actually complies sans scare quotes with the discovery to the courts satisfaction by May 20. Habba will have to submit affidavits of compliance that actually accord with New York Law (fourth times a charm?), and HaystackID, the e-discovery firm tasked with marshaling documents after the Trump defendants failed to do it themselves, will have to certify that they are actually complying. Trump will have to cut the AG a check for $110,000 to cover the accrued contempt fines, and hell have to pay more if he fails to live up to the terms of the order.

This afternoon, four justices from the First Department Appellate Division heard the appeal of Justice Engorons order that Trump and his two eldest children sit for testimony. Like the trial court hearing on this issue, it was pretty wild.

Trumps lawyer Alan Futerfas rested his argument on the theory that its somehow illegal for the AG to issue a civil subpoena when there may be a parallel, ongoing criminal investigation by District Attorney Alvin Bragg. A criminal grand jury subpoena in New York comes with an automatic grant of immunity, and Futerfas argued that the civil subpoena is simply a ruse to circumvent criminal process.

After the high profile resignations of the outside attorneys hired by Braggs predecessor Cyrus Vance, Jr. to prosecute Trump, its pretty clear that theres nothing left of the criminal investigation. But with Bragg still pinky swearing that the investigation is ongoing even after the grand jury has been disbanded, Futerfas is going to keep flogging this dead horse a little while longer.

The problem with this argument, as the Justices noted, is that civil deponents can assert their Fifth Amendment right against self-incrimination, as Eric Trump did hundreds of times when he was ordered to testify back in 2020.

You dont have the right to testify before a grand jury, and no prosecutor worth his salt is going to allow you to testify Presiding Justice Rolando Acosta said incredulously.

Youre asking us to eliminate dozens of years of precedent or act as legislators, he added later. Its not like you are unaware of your criminal jeopardy, in which case you can invoke your privilege against self incrimination. Thats the remedy that you have.

Justice Tanya Kennedy was similarly non-plussed with Futerfass premise that a civil investigation which leads to criminal charges is somehow illegitimate.

Whats wrong with that? she wondered.

If that civil investigation creates criminal jeopardy, then it creates criminal jeopardy, Justice Acosta agreed.

In an attempt to distinguish his case from every other precedent, Futerfas argued that Tish James was biased against his client, and thus her subpoenas were somehow illegitimate.

We have years of statements by Letitia James, he said, his voice rising in indignation.

We have years of statements by everybody, Justice Acosta responded. And he didnt need to explain that a guy who ran on a platform of LOCK HER UP is hardly in a position to complain about public statements by an elected official.

Thank you both for your arguments, theyve been lengthy and thorough, Justice Acosta concluded drily.

And just to make the day even better, Justice Engoron rejected a bid by Trumps appraisers Cushman & Wakefield to let the company re-argue its motion to allow it to quit complying the AGs subpoenas about how it came up with such wildly varying valuations of Trumps properties.

Declined to sign as without any merit, he wrote. The [order to show cause] is simply a rehash of issues already properly decided by this court in prior opinion.

Not exactly a hole in one.

Elizabeth Dyelives in Baltimore where she writes about law and politics.

Alan Futerfas, Alina Habba, Alvin Bragg, Arthur Engoron, Courts, Cy Vance, Donald Trump, Eric Trump, Letitia James, Rolando Acosta, Tanya Kennedy

Read the original here:
Vanky, DJ, And Their Dad Get Chilly Reception In New York Appeals Court - Above the Law

In the excitement of Pulitzer day, Commentary and Editorial Writing command a bit less attention than high-profile reporting categories. But as this years winners illustrate, the Pulitzer board still likes opinion pieces and prefers them fiery hot.

The Editorial Writing award went to Lisa Falkenberg and others on her team at the Houston Chronicle for writing on voter suppression and bogus voter fraud charges in Texas. Senator Ted Cruz, Gov. Greg Abbott and Attorney General Ken Paxton all came under heavy fire.

In the Commentary category, perennial finalist Melinda Henneberger of The Kansas City Star was honored for a relentless series of columns seeking prosecution of a retired police detective accused of rape and being a serial sexual predator. A down-market Jeffrey Epstein, Henneberger said in a conversation.

The entries share the distinction that they were heavy on deep reporting, a frequent preference of the Pulitzer board in any category.

While Henneberger was a finalist but not a winner for each of the last three years, Falkenberg was an awards veteran, having won a Pulitzer for commentary in 2015.

The entries also have in common that they have not yet led to corrective action of the sort often found in reaction to Pulitzer-winning local investigations, and thus are being pursued this year and beyond.

Henneberger told me that the retired detective is not young and not well so the legal establishment in Kansas City, Kansas, seems not keen on seeking punishment. Im furious that nothing has been done, she said. Its just appalling.

As for the Texas editorials that ran under the continuing title, The Big Lie, Falkenberg said, I wish I could tell you we stopped what was happening, but I cant. Its uphill work and continuing, she said. The worst version (of restrictions on registration and voting), known as Jim Crow 2.0, didnt pass. I hope our work contributed to that result.

The Pulitzers still dedicate two of the 15 journalism categories to opinion; three if you count Editorial Cartooning, which was recast and expanded this year as Illustrated Reporting and Commentary; four if you include Criticism, which often but not always tilts to arts topics.

Thats unfashionable at a time when many publications are cutting back on staffing and space for editorials, and a number have eliminated candidate endorsements (not to mention most arts criticism) altogether.

Falkenberg said she is happy to buck that trend and admit to being a bit of a traditionalist. Her earlier Pulitzer resulted in reversing a wrongful homicide conviction. But she said that she sees a value to the institutional voice that Lisa Falkenberg, writing alone, does not have.

In addition, editorials are consistently the best read of a variety of opinion formats at the Chronicle, she said, and during endorsement season, those pieces generate the most traffic and the most new subscriptions.

Falkenberg said that she is always fighting to get more staffing. As is, though, the paper has three editorial writers; she and three other editors also write, and the operation recently added a producer.

McClatchys Kansas City Star, as I wrote back in December 2017, reorganized its opinion operation to include columnists and upped staffing just as many metros were cutting back. The editorial staff produced a series on favoritism in bidding on a $1 billion airport construction contract that got it rescinded and rebid.

Hennebergers resume includes a decade as a reporter for The New York Times and stints at The Dallas Morning News, The Washington Post and Bloomberg Politics. This week she moved on from the Star to a new job as columnist for The Sacramento Bee, McClatchys flagship.

Ive been in so many places, she said, but the last five years have been the most satisfying of my career by a lot. In a big news market, you never really have a story like Trump to yourself. Here Ive found that if I didnt do this story, no one would. And thats why local journalism matters so much.

Hennebergers Pulitzer work typically consists of the single-minded pursuit of particular injustices. This set of investigative columns, she said, took months of reporting, including time getting to know people who had no reason at all to tell what had happened to them.

Falkenberg said that she and her staff try consistently for value-added pieces, making sure the work is not just factual but based on original reporting.

An association of opinion journalists went out of business in 2016 as participation waned, folding into the News Leaders Association (then the ASNE). But with only informal communication left in the field, Falkenberg said, she is encouraged to hear that some papers that cut deeply have reconsidered and are building back.

I hope so. Mondays winners show the continuing merit of robust opinion writing even as digital formats, not so friendly to opinion writing as print, become dominant.

Also, for readers of any kind, I recommend dipping into the exemplary 2022 winning entries if only for a bracing jolt of outrage. Here are some examples:

From Editorial: The shame of Texas Cruz, Paxton and the Seditious 16 (The Houston Chronicle editorial board, Jan. 9, 2021):

Now and then through the years we Texans have sent our share of buffoons, grifters, lightweights, crooks, ignoramuses and ego-obsessed asses to Washington as representatives of the people.

In the wake of last weeks Capitol insurrection, add to this ignominious list the states junior senator, Ted Cruz and the 16 Republican House members who voted in favor of discredited objections to certifying the presidential election results in one or more swing states. The Seditious Sixteen voted to short-circuit democracy even after a Trump mob rampaged through the Capitol, even after blood was shed in the halls of that august building.

Also add to this list Ken Paxton. Like a tongue-flapping pup hopping into the bed of his masters pickup on a jaunt to town, our indictment-burdened, ethics-allergic attorney general headed to Washington last week for no reason other than to stand adoringly alongside President Donald Trump and echo his unhinged calls for insurrection

From Why is Roger Golubski, an accused rapist and former KCK cop, still walking around free? (Melinda Henneberger, The Kansas City Star, Jan. 3, 2021):

A 5-foot-9-inch, 250-pound white male accused of sexually assaulting dozens of mostly poor Black women is at large in Kansas City, Kansas.

No need to put out an APB, though, because the suspect, former homicide detective Roger Golubski, who retired in good standing and with a full pension from the Kansas City, Kansas Police Department, isnt in hiding. Theres no mystery about his whereabouts, right in Wyandotte County, where hes lived all his life.

In a November deposition in a civil case against him, Golubski mostly declined to answer questions by invoking his Fifth Amendment right not to incriminate himself. He did that a nice round 555 times.

Read more:
The Pulitzers still value opinion writing and so do readers - Poynter

A lawyer for Donald Trump, Ivanka Trump, and Donald Trump Jr. faced strong but good-natured pushback in a Manhattan appeals court on Wednesday as he argued that the New York attorney general's subpoenas for his clients' testimony are improper and rooted in political bias.

The four-judge panel will decide whether the three Trumps must give sworn, closed-door testimony in Attorney General Letitia James' investigation of the family's real-estate business, the Trump Organization.

In fighting the subpoenas in oral arguments, Alan S. Futerfas reprised the two arguments he's used in state court and an appellate brief.

The first argument is that James' three-year investigation into the former president's business is a partisan vendetta. Futerfas argued that James, a Democrat, has publicly criticized the former president and GOP kingmaker since running for attorney general in 2018.

As his second point, Futerfas argued that the Trumps shouldn't be forced to give depositions in James' civil probe of the family business when their testimony could put them at risk in a parallel criminal probe.

Futerfas argued that "the attorney general is basically standing in the shoes of the district attorney" and that forcing the Trumps to testify in James' civil probe would eviscerate their Fifth Amendment right against self-incrimination.

But members of the four-judge panel of New York's First Judicial Department repeatedly asked the same question that a state judge had asked in ordering the Trumps to testify: If the Trumps fear incriminating themselves, why not just comply with James' subpoena and then plead the Fifth?

"I agree that it is proper for courts to protect against the evisceration of the privilege against self-incrimination," Rolando Acosta, the presiding justice, told the Trump family lawyer.

"But what prevents you from invoking that privilege?" he asked. "Why do we need to intervene in this case, and interfere in or constrain the ample discretion and authority given by statute to the attorney general?"

Another judge on the appellate panel, Peter Moulton, noted that the attorney general had been gathering evidence against the Trumps via her civil probe since 2019, when Michael Cohen, Trump's former lawyer, testified in Congress about his former boss' alleged financial wrongdoing.

For example, James has said in filings that her office is pursuing Cohen's allegation that Trump would inflate the value of his assets in seeking hundreds of millions in bank loans and then deflate the value when seeking a break on property taxes.

"Counsel, does it matter that the civil fraud investigation began in 2019, well before the criminal prosecution, and was based upon the testimony of Michael Cohen, and has gathered quite a lot of evidence since then thousands of pages of documents?" Moulton asked.

James didn't announce she was weighing criminal charges until May 2021, two years after the civil probe began.

"It had some momentum going before there was a criminal prosecution," Moulton said of James' civil probe.

"But by the time you get to the issuance of these subpoenas," Futerfas countered, "Letitia James had announced that she was part and parcel of the criminal investigation" by the Manhattan District Attorney's Office that led to the indictment of the Trump Organization and its chief financial officer at the time, Allen Weisselberg.

A third judge on the panel, Anil Singh, pushed back against the lawyer's claim that James is politically biased against Donald Trump.

Futerfas said James had made "years of statements" against Trump, calling him an "illegitimate president" and vowing to prosecute him.

"And the attorney general sought political contributions in January of 2022, and it's in the record," he said. "There's an email blast that went out saying, 'Do you like this president? Do you support this president?' because the attorney general was running for governor for a short time.

"And it was all about using political animus against Mr. Trump," he said. "While she was an officer of the state! How could she do that?"

"Counsel, counsel," Singh interrupted. "Isn't there a factual predicate for the investigation, based on Cohen's testimony?"

"Certainly, when Mr. Cohen testified, they could have an investigation," Futerfas answered.

"I've been practicing law for 34 years," he continued. "I've never seen the kinds of statements, in 34 years, that were made by someone seeking the highest law-enforcement position in the state. They're simply wrong. They're unacceptable."

Futerfas said that any other law-enforcement officer who made the kinds of statements James made against Trump against an investigatory target what he called "the merging of political agendas with law enforcement" would have been forced to recuse themselves.

The last judge to speak, Tanya Kennedy, brought the discussion back to the attorney general's right to issue civil subpoenas even while commencing a criminal investigation, as argued during the proceeding by Judith N. Vale, an appeals lawyer for the attorney general. (Read the attorney general's response to the Trump document subpoena appeal here.)

"They're allowed to collect evidence, right?" Kennedy asked.

Kennedy last week turned down Donald Trump's request for an immediate halt to a $10,000 contempt-of-court fine for failing to comply with the attorney general's separate subpoena for his documents, which the former president is also appealing.

"Justice Kennedy," Futerfas said, "they have already said, and they have never denied, whatever information they get under the guise of the civil subpoena is going to go right to the DA's office. They've never denied it."

And what's wrong with that, the presiding justice asked.

"Isn't that in the normal course of business?" he asked. "Generally, they start with an investigation into a particular conduct ... and then they conduct a civil investigation. If that civil investigation creates criminal jeopardy, then it creates criminal jeopardy."

It was a busy day in court for Trump and his business.

Earlier in the day, a lower-court judge ordered that Trump must cut a $110,000 check to James' office to end the contempt-of-court order that was charging $10,000 a day in penalties for the former president's failure to comply with James' subpoenas for his documents.

The rest is here:
Trumps have tough time fighting NY subpoenas in appeals court - Business Insider

Happy Birthday to Johnny D and his merry band of prosecutors! Today marks your third birthday! Quite a milestone for an investigation that has just one conviction a gift wrapped up with a bow from Michael Horowitz to show for those three years.

John Durham, however, had something much more ambitious planned to mark the milestone, it appears.

As Sean Berkowitz noted earlier this week, Sussmanns team wants to call Eric Lichtblau as a witness in next weeks trial. They were able to get Lichtblau to agree to testify based on the understanding he would only testify about conversations with Michael Sussmann and Rodney Joffe. But Durhams team I guess to assert the newfound brattiness of a three-year-old refused to limit their cross-examination to those who had waived confidentiality.

There is an issue here that I want to alert you to. We reached out to Mr. Lichtblaus counsel, actually counsel for The New York Times, to explore their willingness in light of the First Amendment issues to testify at the trial. And we told him that both Mr. Sussmann and Mr. Joffe would waive any privilege associated with the press privilege; and that gave The New York Times comfort that, notwithstanding their normal policy of objecting, they would allow him to testify about his interactions with

Mr. Sussmann and Mr. Joffe, communications between the two as well as communications with the FBI that wouldnt be protected by privilege because the FBI reached out to them to ask them to hold the story.

They did tell us that they would object to questioning Mr. Lichtblau about independent research he did in support of the story, you know, people he spoke with to verify sources and other types of things that were not communicated to Mr. Sussmann.

We told him from our perspective that seemed like a fair line to draw, and we would not get into that.

Hes reached out to the Government on that issue, and it appears there may be again, I dont want to speak for the Government but it appears that they may not be in a position today to give The New York Times that assurance. And so we expect The New York Times sometime this week will be filing a motion on that issue to tee it up for your Honor.

I know youre welcoming all this additional paper.

THE COURT: One more intervenor in the mix.

MR. BERKOWITZ: All the news thats fit to print.

As a motion submitted by Lichtblau yesterday and a declaration from his lawyer Chad Bowman lays out, after Sussmann and Rodney Joffe waived their confidentiality with Lichtblau by April 21, Durham then took eleven days to consider whether they were willing to limit Lichtblaus testimony to his conversations with the two of them. Predictably, Andrew DeFilippis was not.

On April 21, 2022, I spoke by telephone with Andrew DeFilippis in the Special Counsels Office, as well as several of his colleagues. I asked whether the prosecution similarly would be willing to limit examination to direct communications between Mr. Sussmann and Mr. Lichtblau, a journalist, particularly given the Department of Justices new policy restricting the use of compulsory process to obtain information from reporters, as memorialized in the Office of the Attorney Generals July 21, 2021 Memorandum, a true and correct copy of which is attached as Exhibit B and which is also available online at at https://www.justice.gov/ag/page/file/1413001/download. Mr. DeFilippis stated that the prosecution needed time to consider the request.

On May 2, 2022, during a follow-up telephone call, Mr. DeFilippis stated that the prosecution was unable to give any assurance that their cross-examination questioning of Mr. Lichtblau would be confined to his discussions with Mr. Sussmann. In particular, Mr. DeFilippis stated that certain of Mr. Lichtblaus email communications with third parties were within the prosecutions possession, and that the prosecution might want to examine Mr. Lichtblau about other, unknown aspects of his reporting. He also indicated a view that any reporters privilege would be pierced by a trial subpoena.

This is, by all appearances, a naked attempt to keep a very devastating witness off the stand. Theres no way, even under prior guidelines, Durham would have been able to get Lichtblaus testimony; particularly given that theyve got the communications in question, they couldnt show a need to get his testimony.

Thats all the more true given Merrick Garlands prohibition on requiring testimony from reporters.

But Lichtblaus testimony is pretty critical for Sussmann, not least because hell make it clear he reached out to Sussmann and that the interest in reporting on Russian hacking was in no way tied to animus towards Trump. Plus, he would explain what an impact that acceding to the request from FBI to hold the story was for his career.

Durham has long tried to hide that after the FBI requested, Sussmann and Joffe acceded to help kill the story. It kills his conspiracy theory. It corroborates Sussmanns stated motivation for sharing the DNS anomaly, that he was trying to help the FBI. Particularly given that both Sussmann and Joffe have Fifth Amendment reasons not to want to testify, Lichtblau would provide a way to get the full extent of that process into the trial.

But Durham wants to prevent it from coming into evidence unless Lichtblau is willing to pay a needless price for doing so.

See the original post here:
To Celebrate Its Third Birthday, the Durham Investigation Will Attempt to Breach Eric Lichtblau's Reporter's Privilege - emptywheel - Emptywheel