Month: August 2023

Thanks to some misleading reporting last night, lots of folks are now fretting that Fulton County District Attorney Fani Willis will be removed from office and the Trump prosecution stopped as early as October.

Let me calm your fears. While it is always possible, it is not likely to happen the way some people assume. And it’s definitely not likely to happen on or immediately after October 1.

Here are some facts and the law:

First, the law in Georgia is very different than the Florida process that allowed Ron DeSantis to unilaterally remove state officials.

Georgia SB 92, passed in May, sets up a Prosecuting Attorneys Qualification Commission which has the power to “discipline, remove, and cause involuntary retirement of appointed or elected district attorneys” in accordance with Article VI, Section VIII, Paragraph II of the Georgia Constitution.

This Commission must be filled by former elected District Attorneys, former elected judges, and former assistant District Attorneys. Some appointments have already been made, but the Commission has not yet been fully staffed.

The statute sets out very specific grounds for removing a District Attorney, most of which would not and could not be applied to DA Willis. The closest possibility is the consideration of a complaint on the grounds that she made a charging decision based on undue prejudice against the accused.

It would be difficult for anyone to argue that the Trump indictment was a “charging decision” by the District Attorney since Trump was not charged by the DA; his indictment was handed up by a grand jury pursuant to the legal grand jury process. The Trump indictment was a charging decision by the grand jury, not the DA.

But even if someone tried to have Willis removed as DA on the ground of this or other charging decisions she has made, Willis has proven herself to be extraordinarily skilled and extremely savvy; it would be foolish to assume that she has at any point left herself vulnerable to such a charge.

But even if the panel accepted with a spurious complaint against Willis, the process for investigating and removing a DA is long and rather complicated and could not be completed overnight. Moreover, there is an appeal process in the case of removal, and that would also delay any effort to remove her. In addition, there are other avenues of appeal that could be taken outside of the process set forth in the statute.

Also, a group of state district attorneys has already sued to strike down the law, and that will have to work its way through the courts and it’s possible that could further stall any implementation of the law. It is likely that if an attempt to remove Willis were launched, the action would be enjoined by the court.

So, while it is certain that Trump’s minions will try to have Willis removed under this new law, and although it is possible that she could eventually be removed after an extended and complex process, such a possibility is so far down the road it is not worth getting ourselves worked up over it right now.

Donald Trump was indicted in a major RICO case yesterday. That is huge. There’s no point in looking down the road for pitfalls that haven’t occurred, aren’t certain to occur, and over which none of us has any control anyway.

To quote Tom Hanks as Jim Lovell in “Apollo 13”:

“There are a thousand things that have to happen in order. We are on number 8. You’re talking about number 692.”

Please don’t fall prey to the hysteria the media is paid to generate and has a vested interest in maintaining at each stage of this process.

This is a long game. Keep your eye on the ball.

I am thrilled, relieved and gratified that Ohio voters stepped up with such fierceness to overwhelmingly defeat the Republican effort to strip away our rights.

I am also really pleased that so many Ohio women were instrumental in this victory and happy to see Ohio’s white women lean in so hard.

This is especially satisfying coming less than a year after the midterms in which a majority of Ohio’s white women voted to reelect Gov. Mike DeWine and to make JD Vance Ohio’s junior senator.*

Much of the shift between last year and now was likely because Issue 1 was so obviously intended to lay the groundwork for making it impossible for Ohio voters to protect reproductive rights in November, that everyone got it and got on board.

But this threat to women and others should have been apparent during last year’s midterms, yet a majority of white women in the state voted for an openly anti-choice governor and senator just a few months ago.

But better late than never …

I’m sure that women of all races will again rise to the occasion this November to approve the Ohio constitutional amendment that will protect women’s reproductive rights.

But then what?

Will these victories and the campaigns that led up to them open the eyes of those white women who previously supported anti-choice, anti-civil rights and often openly racist candidates when they thought they wouldn’t be personally harmed by their policies?

Will these women realize that it will be absolutely critical to vote Blue up and down the ticket, because while Trump is often the object of their ire, he is not really the problem. He’s just the most obvious symptom.

The real problem is the Republican Parry has sold itself lock stock and barrel to the most extreme elements in the country, with the complicity of “good Republicans” who have silently gone along with it.

As a Black woman who has been in this fight for longer than I care to say, I am glad that so many white women joined the effort and linked arms with women of color to beat back this threat. I now beg my white sisters not to take a victory lap and then leave the field to return to their places of comfort and privilege, holding their tongues for the sake of politeness and neighborliness, tuning out future battles because they think the outcome won’t harm them.

PLEASE stay in the fight and vote Blue (Go Sherrod!), drive Republicans out of state and local offices, and fight racism, misogyny, homophobia and transphobia, wherever and in whoever it arises.

The Ohio Issue 1 fight showed you what you’re made of and that if you stand with us, we can move mountains and stop the flood.

Source,: NBC News: “Ohio Governor Election Results 2022” https://www.nbcnews.com/politics/2022-elections/ohio-senate-results

More than a few folks have been dogging out Attorney General Merrick Garland for supposedly moving too slowly on the January 6th investigation and for not appointing a Special Counsel sooner.

Setting aside the fact that Garland had no statutory authority to appoint a Special Counsel before he did (hold that thought – I’ll get back to it in a minute), it’s funny to see people treating Jack Smith like a badass action hero and Garland like a hapless failure – when it was Garland himself who selected and hired him.

But that said, it’s becoming apparent that Garland is even slicker and more strategic than people realized.

As I noted, Garland’s been getting heat for not appointing Smith sooner. But that criticism is founded on a lack of understanding of the Special Counsel statute An Attorney General can’t just appoint a Special Counsel whenever they choose or because they want to speed up an investigation and get a prosecution wrapped up before an election. They can only appoint a Special Counsel if a conflict of interest arises that makes it inappropriate for DOJ attorneys to handle an investigation and prosecution. And that conflict first arose last November when Trump declared his candidacy, making himself a political rival of Garland’s boss. And Garland was ready – the minute that happened, Garland pounced and sicced the barracuda on Trump.

In retrospect, it apoears more and more like Garland played Trump like a fiddle, quietly going about his business, overseeing an investigation that, despite the endless complaining of teevee pundits and anonymous sources, was moving along robustly and quickly.

And then Trump messed up and played right into Garland’s hands, announcing his candidacy well before he had to, giving Garland the perfect excuse to bring in Smith, something he couldn’t have done if Trump hadn’t announced his intention to run against the president Garland reports to. The speed with which Garland moved to appoint Smith, who was named just two days after Trump’s announcement, suggests Garland already had that card up his sleeve and was just waiting for Trump to misplay his hand to pull it out and slap it down.

Smith was ready, too. He came in hot, built on the work DOJ had been doing for the previous year and a half, and took it to the next level in a way that would have been difficult, if not impossible, for DOJ prosecutors to do on their own.

We’re now starting to see the results – because it’s now clear that, contrary to what some of Garland’s detractors claim, Garland didn’t bring Smith in to START the investigation. He brought him in to FINISH it

Nicely played, Mr. Attorney General!

Folks all over the broadcast and cable programs and in social media have been discussing various aspects of Trump’s latest indictment, what it means, what will happen if he’s convicted, whether he can be barred from office or have his benefits and Secret Service stripped away, etc.

Unfortunately, much of what is being said and written is inaccurate and sometimes just flat out false.

Because few things are more frustrating to me – a lawyer, Constitutional law expert, and former government official, who respects and cares about the law and justice – than to see people being misled and misinformed, I have written a basic primer to explain a few of the more discussed but misunderstood legal concepts involved in the Trump case.

Here are goes:

SECRET SERVICE: As a former president, Donald Trump is entitled by law to lifetime Secret Service protection. Even if he is convicted of a crime and Congress changes the law to make former presidents who are convicted of a crime ineligible, the new law will not apply to him and he will remain eligible for Secret Service protection for the rest of his life. The law can be changed to strip Secret Service protection from a former president who is convicted of a crime. BUT that can only be applied prospectively. Such a law cannot be applied retroactively to take away Secret Service protection from a president who already became entitled to it.

The reasoning is a little complicated, but it is based on a provision in the Constitution that bans “ex post facto” laws that criminalize behavior that was not a crime at the time the person engaged in it. That has been extended to also apply to actions that punish people by taking away entitlements that have already vested.

Therefore, because Donald Trump became entitled to receive lifetime Secret Service protection as soon as he became president and it became an immutable fact that he would eventually be a former president when there was no prohibition against a former president receiving Secret Service protection, any revision in the law that changes what a former president is entitled to cannot be applied to him. It can only be applied to former presidents who became eligible for Secret Service protection upon become president AFTER the law’s amendment. If Congress amended the law next week, it would not apply to Biden or any past president. It would only apply to the president who succeeds Biden and their successors.

Thus, no matter what people think or want or wish, Donald Trump is, without equivocation, entitled to continue having a Secret Service detail the rest of his life and that will not change even if he is convicted of a crime.

FELONY CONVICTION AS A BAR TO THE PRESIDENCY: Congress cannot pass a law prohibiting convicted felons from serving as president. That can only be done through a Constitutional amendment, which requires 2/3 vote in both the House and the Senate and ratification by 38 of the 50 states.

This is because eligibility for the presidency is set forth in the Constitution and can only be changed by amending the Constitution. Congress cannot add additional qualifications to the criteria delineated in the Constitution.

14th AMENDMENT BAN ON INSURRECTIONISTS: Section 3 of the 14th Amendment prohibiting federal officers who have engaged in insurrection from holding federal office does not apply to Donald Trump – or any other federal official to date – and cannot be used to keep Trump off of the ballot.

This is because of another section of the 14th Amendment – the Due Process Clause – which states that no person can be deprived of life, liberty or property without due process of law. A job or office is considered to be a property rights for the purposes of Constitutional analysis, and thus, before someone can be denied the right to hold a federal office that they are otherwise eligible for under the Constitution, they must be accorded full due process.

This means that a person cannot be barred from office simply because they are accused of engaging in or some people are certain they engaged in an insurrection. Due process requires a specific finding of such wrongdoing by an impartial process in which the accused has a full opportunity to confront their accusers and defend themselves. Without a specific judicial or administrative process put in place for this special circumstance, a court ruling – likely in the form of a criminal conviction – would have to be issued before the 14th Amendment bar could be invoked.

Donald Trump not only has not been convicted of engaging in an insurrection, he has not been charged with that crime. So the 14th Amendment prohibition cannot be applied to him and likely never will be.

SOLITARY CONFINEMENT: Holding Trump in solitary confinement, if he is convicted, would very likely be ruled unconstitutional and, thus, is not a logical alternative for incarceration should he be convicted.

Solitary confinement is an extraordinary measure used only in extraordinary circumstances. This is because such confinement has tremendous negative psychological impacts on prisoners and, thus, is used sparingly and only when there is solid, compelling evidence that the prisoner is a danger to himself or others, or has engaged in behavior that merits severe punishment. Putting a prisoner in solitary confinement because he requires special security by virtue of being a former president comes nowhere close to meeting that high bar. If Trump were ordered held in solitary confinement for that reason, the confinement would very likely violate the Eighth Amendment prohibition against cruel and unusual punishment.
TREASON: Donald Trump did not commit treason and has not been charged with doing so.

Treason is a very specific crime defined by the Constitution and statute: it occurs ONLY when a citizen “levies war against [the United States] or adheres to their enemies, giving them aid and comfort within the United States or elsewhere.”

Regardless what Donald Trump has done, he has not engaged in treason under the legal definition and has not been charged, and will not be charged with treason.