Supreme Court Lawyer on Tax Return Rulings: ‘If I’m Donald Trump, I’m Scared Right Now’

After the U.S. Supreme Court issued a pair of 7-2 decisions in high-profile cases on President Donald Trump’s tax returns, the prevailing consensus among legal experts was that the rulings were a mixed bag: the High Court reaffirmed that no one—including the president—is above the law, but also shielded Trump from potential political damage in the here and now, and likely until after the 2020 election. But Supreme Court litigator Neal Katyal argued Thursday that those takes were off the mark.

Appearing on MSNBC, Katyal said the prevailing notion that the president had weathered the storm surrounding his financial documents was wrong.

“I’ve been listening to our reporting for the last half hour and I love my MSNBC colleagues and analysts, but I profoundly disagree with almost everything that’s been said. This is not a ‘mixed bag’ or a victory for Trump. Trump shouldn’t be happy about this. The fact is he lost,” Katyal said, responding to NBC News’s Pete Williams.

The former acting U.S. Solicitor General then addressed the perception that the cases, Trump v. Vance and Trump v. Mazars, being returned to the lower courts meant that the proceedings would be tied up in litigation until well after the 2020 election.

“Look, these cases can move very quickly. The Nixon tapes case moved in a matter of three months; Bush v. Gore, start to finish – the election dispute of 2000 – 36 days. This is all about the election of 2020, and I expect Cy Vance to move incredibly fast,” he said, adding that Trump’s remaining legal defenses in the case are nothing more than a “paper-thin shield at best.”

Katyal concluded by discussing the his view of potential timeline leading up to the November elections.

“I think it’s totally possible for all of this to come out before the 2020 election in terms of New York’s prosecutors getting this information and acting on it,” he said. “So I would caution all those folks who have been listening to this for the last half hour and say, ‘This is a mixed bag.’ It is not. If I’m Donald Trump, I am scared right now. Whether or not it comes before or after the 2020 election, Cy Vance is going to get this material, and it looks pretty damaging to Donald Trump.”

Later in the day, Katyal described the court’s decisions as “scary for Trump,” suggesting it was going to be “easy for courts to decide the New York case, particularly since the SCOTUS opinion today leaves Trump with very little left to say.”

Former federal prosecutor and Law&Crime legal analyst Gene Rossi concurred with Katyal’s take.

“I fully agree with the brilliant [Katyal],” Rossi wrote. “The two tax and financial cases are not wins by any means for President Trump. The SCOTUS essentially said the Emperor has no clothes. And he is crowing because he found a tiny four-leaf legal clover to cover himself?”

Former federal prosecutor and MSNBC legal analyst Joyce White Vance sided with Katyal’s take this was a clear loss for the president, particularly when you consider that Justices Brett Kavanaugh and Neil Gorsuch ruled against the president’s arguments of absolute immunity.

[image via Chip Somodevilla/Getty Images]

via Law & Crime

July 9, 2020 at 02:22PM

In Fierce Dissent, Sonia Sotomayor Shows Clarence Thomas That Two Can Play at the History Game

In a significant 7-2 ruling on Thursday, the U.S. Supreme Court held that immigrants to this country who seek asylum cannot ask federal courts to review fast-tracked deportation orders. Justice Sonia Sotomayor responded with a fierce dissent, chastising the majority for spectacularly missing the point.

“Today’s decision handcuffs the Judiciary’s ability to perform its constitutional duty to safeguard individual liberty and dismantles a critical component of the separation of powers,” Sotomayor wrote.

The case is that of Vijayakumar Thuraissigiam, an immigrant who is a member of the ethnic minority Tamil population in Sri Lanka. Thuraissigiam was apprehended in the U.S. and sought asylum on the basis that he feared persecution in his native country.

Under expedited removal procedures, if an asylum officer determined that Thuraissigiam’s fear was credible, Thuraissigiam would have been entitled to a full hearing. However, in this case, the opposite happened, and his matter was only given a quick review by an immigration judge. Thuraissigiam filed a petition for habeas corpus in federal court, claiming among other things that his due process rights had been violated.

The case, styled at the high court as Department of Homeland Security v. Thuraissigiam, assessed the legality of the 1996 Congressionally-created “expedited removal process.” When removal is “expedited,” it means that one front-line immigration officer can unilaterally decide to deport some immigrants without a full hearing.

Justice Clarence Thomas penned a 10-page concurrence which embarked on one of his beloved history lessons. As usual, it was heavy on olde England. Explaining his reasoning for the finding that expedited removal does not constitute an illegal suspension of habeas corpus, Thomas ushered his readers through habeas corpus under the Magna Carta and the writings of Sir Edward CokeAlexander Hamilton wrote about habeas corpus in Federalists 83 and 84, and the Founding Fathers were fine with detaining people who were “suspect.” Based on the history, says Thomas, the statute in question “bears little resemblance to a suspension as that term was understood at the founding.” Therefore, all is good with deporting Vijayakumar Thuraissigiam without a full hearing.

Justice Sotomayor offered something of a history lesson of her own. She began by hitting, head-on, the reliance upon founding-era logic with regard to immigration decisions:

To start, the Court recognizes the pitfalls of relying on pre-1789 cases to establish principles relevant to immigration and asylum: ‘At the time, England had nothing like modern immigration restrictions.’ Ante, at 18–19 (“As late as 1816, the word ‘deportation’ apparently ‘was not to be found in any English dictionary’’).

She went on to point out the impossibility of bringing forth precedent on immigration issues that are coincident in time with those on the creation of habeas corpus:

The Court nevertheless seems to require respondent to engage in an exercise in futility. It demands that respondent unearth cases predating comprehensive federal immigration regulation showing that noncitizens obtained release from federal custody onto national soil.

“The United States,” Sotomayor continued, lacked a comprehensive asylum regime until the latter half of the 20th century.” That might explain why there aren’t any older cases that are directly on point with this one. Trying to equate Thuraissigiam’s immigration-based habeas corpus claim with centuries-old precedent is, as Sotomayor put it, “out of step” with the Court’s usual practice.

Sotomayor let her frustration with the majority’s logic be known, writing that despite the court’s “professed keen interest in precedent,” it discounted cases “from around the founding onward” that did apply “to noncitizens who were detained, and wanted to remain, including those who were prevented from entering the United States at all.”

Justice Sotomayor followed up her reasoning with everything from specific examples from slave times to the English Habeas Corpus Act of 1679. She ended by slamming the majority for “ignoring a plethora of common-law immigration cases from a time of relatively open borders, and mischaracterizing the most relevant precedents from this Court.”

Sotomayor wrote that the Court justified its decision by “pointing to perceived vulnerabilities and abuses in the asylum system.” Yet the Court, she complained, was unwilling to allow deportees to address those problems in the courts.

[image via John Moore/Getty Images]

via Law & Crime

June 25, 2020 at 02:19PM

Assault Weapon Ban Case Reaches Supreme Court

A constitutional challenge to Massachusetts restrictions on some semiautomatic firearms and large-capacity magazines reached the U.S. Supreme Court on Monday, marking the fourth gun-related petition that asks the high court for regulatory guidance in the new term. A petition in the case Worman v. Healey was filed on behalf of a group of firearm owners, dealers and an advocacy organization, reports the National Law Journal. John Parker Sweeney is lead counsel for the challengers. The justices in recent years have shown reluctance to wade into Second Amendment issues. The court did agree to decide whether restrictions on the transport of guns outside of New York City violate the Second Amendment and other provisions. Oral arguments are scheduled Dec. 2.

“The courts below upheld Massachusetts’ ban on possession of popular semiautomatic firearms and standard ammunition magazines by law-abiding, responsible citizens, infringing their right to keep and bear arms for lawful purposes, including self-defense,” Sweeney wrote in Monday’s petition. The Massachusetts law is modeled after the 1994 federal assault weapons ban, which expired in 2004. The state law restricts the sale, transfer and possession of certain semiautomatic weapons and gun magazines capable of holding more than 10 rounds of ammunition. A federal appeals court, with retired Justice David Souter on the panel, upheld the regulations. In signing the bill into law, then-Gov. Mitt Romney, now a Republican U.S. senator from Utah, declared that semiautomatic assault weapons and large-capacity magazine “are not made for recreation or self-defense. They are instruments of destruction with the sole purpose of hunting down and killing people.” The banned firearms in Massachusetts include AR-and AK-platform rifles, weapons that have been used, among others, in mass shootings around the country. In 2015, Walmart stopped selling semiautomatic firearms—including the AR-15 rifle—and the company recently announced plans to end ammunition sales.

via The Crime Report

September 24, 2019 at 07:46AM

Supreme Court refuses to change double jeopardy rule in case with implications for federal pardons

By Debra Cassens Weiss

Developing: The U.S. Supreme Court on Monday declined to change the long-standing rule that allows federal and state prosecutions for the same offense.

The Supreme Court ruled against Terance Gamble, who was charged with being a felon in possession of a firearm by both the federal government and the state of Alabama. NBC News and SCOTUSblog have early coverage.

Justice Samuel A. Alito Jr., wrote the majority opinion. He was joined by Chief Justice John G. Roberts Jr. and Justices Clarence Thomas, Stephen G. Breyer, Sonia Sotomayor, Elena Kagan and Brett M. Kavanaugh. Justices Ruth Bader Ginsburg and Neil M. Gorsuch filed dissenting opinions.

A contrary decision by the Supreme Court could have made it more difficult for a state to try someone who is pardoned by the president after federal trial proceedings have begun.

The case is Gamble v. United States.

via ABA Journal Daily News

June 17, 2019 at 11:13AM

Justices Rule States and Feds Can Prosecute Someone for ‘Same Crime’

The U.S. Supreme Court on Monday refused to overrule a 170-year-old exception to the constitutional prohibition against prosecuting someone more than once for the same offense.

The exception to the Constitution’s double jeopardy clause, known as the “dual sovereignty doctrine,” allows a state to prosecute a defendant under state law even if the federal government has prosecuted him or her for the same conduct under federal law.

“We have long held that a crime under one sovereign’s laws is not ‘the same offence’ as a crime under the laws of another sovereign,” wrote Justice Samuel Alito Jr. for the 7-2 majority in Gamble v. United States. “We see no reason to abandon the sovereign-specific reading of the phrase ‘same offence,’ from which the dual-sovereignty rule immediately follows.”

Alito said that fidelity to the double jeopardy clause’s text “does more than honor the formal difference between two distinct criminal codes. It honors the substantive differences between the interests that two sovereigns can have in punishing the same act.”

Justices Ruth Bader Ginsburg and Neil Gorsuch wrote separately in dissents.

“A free society does not allow its government to try the same individual for the same crime until it’s happy with the result. Unfortunately, the court today endorses a colossal exception to this ancient rule against double jeopardy,” Gorsuch wrote in his dissent.

Alito rejoined: “The United States is a federal republic; it is not, contrary to Justice Gorsuch’s suggestion, a unitary state like the United Kingdom.”

Ginsburg said in her dissent: “Different parts of the ‘WHOLE’ United States should not be positioned to prosecute a defendant a second time for the same offense. I would reverse Gamble’s federal conviction.”

Terance Gamble is an Alabama man who was convicted and sentenced in state and federal prosecutions for the same crime: felon in possession of a firearm. Gamble, represented by Jones Day partner Louis Chaiten had asked the justices to overrule a doctrine known as the “separate sovereigns” exception to the Fifth Amendment’s double jeopardy clause.

Gamble’s case initially drew considerable attention because of its potential import for Special Counsel Robert Mueller III’s possible federal prosecutions of Russian interference in the 2016 election and involvement of the Trump campaign. Without the separate sovereigns exception, states would be barred from pursuing parallel prosecutions under their state laws.

The outcome of the case was being closely watched for its potential impact on state prosecutions of Paul Manafort, the former Trump campaign manager convicted in federal court in Washington and Virginia on various financial and lobbying crimes. Separately, state prosecutors have brought charges in New York.

During arguments in December, a number of justices appeared skeptical of Chaiten’s position. Chaiten emphasized that the separate sovereigns exception was inconsistent with the original meaning of the double jeopardy clause as well as its text and purpose.

Justice Brett Kavanaugh, himself a self-described originalist, said that argument conflicted with “another part of the original understanding—stare decisis” (standing by precedent). Justice Elena Kagan told Chaiten that his argument seemed “a little bit one note” and that he needed to offer more in order to persuade her to overrule the exception.

At oral argument, Ginsburg told Assistant to the Solicitor General Eric Feigin that the separate sovereigns doctrine has been “widely criticized” by federal judges and academics.

Feigin responded that many of those critical comments also recognized that “some exceptions are necessary, and that successive prosecutions and separate prosecutions are sometimes necessary to vindicate particular sovereign interests.”

Eliminating the exception, Feigin warned, would create a host of practical problems, including deterring cooperation, encouraging aggressive prosecutions, a race to the courthouse, and defendants trying to play each sovereign against the other.

Chaiten, in rebuttal, told the court that at least 20 states do not have the separate sovereigns exception, and at least 37 with respect to certain crimes. “It also seems to have worked out okay,” he said.

Texas Solicitor General Kyle Hawkins shared argument time with Feigin on behalf of a coalition of 36 states.

Read more:

Staring Down ‘Stare Decisis’: How to Ask SCOTUS to Overturn Precedent

Breyer Denounces Ruling That Strikes Precedent, Questions Which Cases Are Next

via – Newswire

June 17, 2019 at 03:36PM

The Supreme Court’s ‘alternative facts’ about drug-sniffing dogs

Last week, I wrote a post looking at how the criminal justice system operates in an alternate reality, one in which truth isn’t dictated by facts or data, but by precedent and case law. Today, I want to look at a case pending before the Supreme Court that is a great example of the problem.

At issue in Edstrom v. Minnesota is whether a drug dog’s sniff outside an apartment door constitutes a lawful search under the Fourth Amendment. If it does not, the police would be required to obtain a warrant before using a narcotics-detecting dog in that manner. If it does, then the police could take their dogs up and down apartment complexes the way they sometimes do with school lockers. Over at the legal analysis site Verdict, Cornell University professor Sherry Colb runs through what’s at stake, and offers some informed speculation on what the court may do.

For the purpose of this post, though, I want to focus on what’s missing from Colb’s analysis and, should the Supreme Court decide to hear the case, will almost certainly also be missing from oral arguments, the court’s ruling and most discussion of the case: that narcotics-detecting dogs and their handlers aren’t very good at discerning the presence of illegal drugs. Multiple analyses of drug-dog alerts have consistently shown alarmingly high error rates — with some close to and exceeding 50 percent. In effect, some of these K-9 units are worse than a coin flip.

via Radley Balko

February 4, 2019 at 09:48PM

High Court Likely to Allow Dual State, Federal Charges

A majority of Supreme Court justices sounded unlikely Thursday to overturn more than a century of doctrine that allows states and the federal government to prosecute someone for the same criminal conduct, reports the Washington Post. While it went unmentioned during oral arguments, the case has implications for any pardons that President Trump might issue for those prosecuted by special counsel Robert Mueller and convicted in federal court. Under the status quo, states might still be able to prosecute under their own laws those who receive a presidential pardon, which applies only to federal charges. 

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Supreme Court agrees to take up double jeopardy issue

The U.S. Supreme Court on Thursday agreed to consider whether to overturn a long-standing rule that allows federal and state prosecutions for the same offense.

If the Supreme Court overturns the precedent, it could make it more difficult for a state to try someone who is pardoned by the president after federal trial proceedings have begun, according to CNN Supreme Court analyst Stephen Vladeck, a University of Texas law professor.

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In Drug Case, Supreme Court Holds That Unauthorized Rental Car Drivers Have Rights, Too

The US Supreme Court recently annulled a major search and seizure case around a rental car filled with heroin with a ruling that could impact the legal rights of Americans who may get stopped by police while driving a vehicle rented by another person. That case is U.S. v. Terence Byrd (#16-1371).

On May 14, Supreme Court Justices released their decision in Byrd’s case, announcing when the Fourth Amendment was applied to the evidence in the case that Terence Byrd had “reasonable expectation of privacy while driving a car rented by another party.”
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