The Legal Dance

Raymond Burr was commanding. He was Perry Mason. William Hopper was a stud. He was cool. He was Paul Drake, Mason’s private investigator. Barbara Hale was smart and gorgeous. She was Della Street, Mason’s secretary, who was sometimes smarter than he was. And it was 1957 in Los Angeles. Paul Drake sometimes drove a 1957 Thunderbird. That was the year when that television show first aired – now in daily syndicated reruns on basic cable.

They’ve worked up to the early 1961 episodes now, and they’re still fascinating. The cars have fins! And everything is a complex legal dance. Who can outsmart who? Who can slow down and befuddle the other side? Who can suddenly produce a key witness and win the day? Who knows the law better than the other side? And of course Mason always wins. But it isn’t easy. All the action is in the courtroom. The spoken word means everything. Someone no one but Mason suspected will break down and confress to the crime. But it’s the hour of back-and-forth maneuvering that matters. That’s the complex dance. That’s how the law works.

Well, maybe that’s not exactly how the law works. No one ever breaks down and confesses to everything right there on the stand. But the law is still a complex dance. The Washington Post just covered the latest moves:

A federal appeals court on Thursday blocked the imminent release of records of President Donald Trump’s White House calls and activities related to the Jan. 6 Capitol attack after a lower court found that President Biden can waive his predecessor’s claim to executive privilege.

The U.S. Court of Appeals for the D.C. Circuit granted a temporary injunction while it considers Trump’s request to hold off any release pending appeal, and fast-tracked oral arguments for a hearing Nov. 30.

This was his attorneys’ third try. Trump stopped this. The circuit court will think this over after oral arguments in three weeks. How long will they think? Team Trump hopes for two or three years. The circuit court seems poised to decide in one or two days. And the writing is on the wall:

The order came after U.S. District Judge Tanya S. Chutkan of Washington on Tuesday cleared the way for handover of documents to a House investigative committee, ruling that an ex-president’s claim to a residual right to withhold records from Congress after leaving office does not continue in perpetuity.

“Presidents are not kings, and Plaintiff is not President,” Chutkan wrote.

But he sort of kind of really still is the president, in an odd sort of way. That’s the argument:

In a 15-page emergency motion filed Thursday, Trump’s attorneys asked to keep the documents secret for now, and proposed that all sides brief the court next week on whether to keep them so for the weeks or months an appeal may take to decide. Trump’s legal team said the case presented serious, novel questions about whether a former president can sue a successor to withhold government records from Congress, and that the institution of the presidency would be irreparably harmed if the documents were released beginning at 6 p.m. Friday as planned.

“The disagreement between an incumbent President and his predecessor from a rival political party highlights the importance of executive privilege and the ability of Presidents and their advisers to reliably make and receive full and frank advice, without concern that communications will be publicly released to meet a political objective,” Trump attorney Jesse R. Binnall wrote.

In short, Biden is just out to get Donald Trump. This is political. This has no real merit. But of course it does have real merit:

The appeals court acted one day after Chutkan rejected a similar emergency motion, writing that the legal question was not a close call and that she would not effectively ignore her own reasoning “in denying injunctive relief in the first place to grant injunctive relief now.”

And the circuit court seems to be leaning that way:

Capping days of legal drama, the appeals court rocketed consideration of the case through federal courts in Washington. While granting an injunction pending further order, the court set a schedule that signaled it would act swiftly to decide whether to withhold records while an appeal is pending. If it declines, the documents would be released, effectively mooting the case in a victory for the House.

But then Trump still owns the three new Supreme Court Justices he nominated:

Trump could still appeal to the Supreme Court, and a ruling keeping records secret could work to his advantage if litigation is prolonged through the November 2022 midterm elections, when Republicans hope to take the majority in what is now a Democratic-led Congress.

Will this new Supreme Court come through for him no matter what the law or Constitution says and save his ass? He expects that. They resent his expectation. He could be disappointed. And the circuit court of appeals is a problem too:

The scheduling order was issued by Judges Patricia Millett, Robert Wilkins and Ketanji Brown Jackson, who also will hear the case. All three were nominated to the bench by Democratic presidents and Jackson is a recent nominee of Biden.

And there is the law:

In her ruling Tuesday, Chutkan said Trump failed to identify any “injury to privacy, property, or otherwise that he personally will suffer” from the production of records.

As for the presidency, the judge quoted a landmark 1977 Supreme Court ruling saying that executive privilege serves the republic, not any individual. Chutkan noted that former presidents waived executive privilege when dealing with matters of “grave national importance,” including the Watergate break-in of Democratic national headquarters by Richard M. Nixon’s 1972 reelection campaign, the arms-for-hostages Iran-contra affair under Ronald Reagan, and the 9/11 terrorist attacks on New York City and the Pentagon during George W. Bush’s presidency.

And this isn’t Trump’s business anyway:

“The incumbent President – not a former president – is best positioned to evaluate the long-term interests of the executive branch and to balance the benefits of disclosure against any effect on the ability of future executive branch advisers to provide full and frank advice,” Chutkan said.

Trump’s assertion of executive privilege “is outweighed by President Biden’s decision not to uphold the privilege,” Chutkan wrote, adding, “He [Trump] retains the right to assert that his records are privileged, but the incumbent President ‘is not constitutionally obliged to honor’ that assertion.”

In short, it’s over. Go home:

Attorneys for the House and the Justice Department, representing the National Archives and Records Administration, took no position on Trump’s request to hold off the release temporarily until the appeals court takes up the case. But they argued against further delay, agreeing with Chutkan’s ruling that the sitting president’s judgment and authority outweighs a predecessor’s authority, and that Trump identified no harm to the presidency that the current president was not best positioned to weigh.

The public interest “weighs heavily” in favor of a full, prompt investigation into the violent riot by Trump’s supporters that resulted in five deaths, led to assaults on nearly 140 police officers and delayed Congress’s confirmation of the 2020 presidential election result, House General Counsel Douglas N. Letter wrote.

“Our democratic institutions and a core feature of our democracy – the peaceful transfer of power – are at stake,” Letter wrote in previous arguments. “Any delay will seriously hinder the Select Committee’s ability to timely complete a comprehensive investigation and recommend effective remedial legislation.”

Trump’s legal arguments “did not present a hard case” and are unlikely to prevail, Justice Department attorney Elizabeth J. Shapiro wrote.

But that makes Trump either very angry or very worried:

Trump went to court on Oct. 18, suing the chairman of the House Jan. 6 committee, Rep. Bennie G. Thompson (D-Miss.), and National Archivist David Ferriero to prevent the handover of records including Trump White House call and visitor logs, emails, draft speeches, talking points and memos regarding potential lawsuits against states Biden won.

The 763 disputed pages set for release this month are the first batches of what are expected to be thousands of pages in response to the committee’s request.

What was Trump up to? No good, obviously:

In a written statement issued after Chutkan had ruled in favor of releasing the records on Tuesday, House Speaker Nancy Pelosi (D-Calif.) said, “The District Court has delivered an important victory for the Constitution, the rule of law and the American people.”

“No one can be allowed to stand in the way of the truth – particularly not the previous President, who instigated and encouraged the insurrection,” Pelosi’s statement said.

White House spokesman Mike Gwin said Chutkan’s opinion was consistent with Biden’s statement calling Jan. 6 an “existential crisis” for democracy.

“The Biden administration will continue to work expeditiously with the Select Committee as it performs its important duty on behalf of the Nation to uncover the facts surrounding the gravest threat to our democracy and constitution in modern history,” Gwin said.

But nothing happened that day! Or the FBI did all that, to make Trump look bad! Listen to Fox News! Or, alternatively, call witnesses:

The legal battle over Trump’s White House documents foreshadows similar fights over the House investigation as it has issued subpoenas to at least 20 top Trump aides, including former Trump chief of staff Mark Meadows and adviser Stephen K. Bannon.

The House last month voted to hold Bannon in criminal contempt for failing to cooperate, referring his case to the Justice Department for potential prosecution. Former Justice Department official Jeffrey Clark has also refused to answer questions about whether Trump attempted to use the department to overturn the election during a closed-door interview with the panel.

Others issued subpoenas were legal scholar John Eastman, who wrote a memo about how Trump could seek to overturn the 2020 election today stay in office, and former New York police commissioner Bernard Kerik, who with Eastman was active in the Willard hotel “command center” where Trump’s loyal backers oversaw efforts to leverage the mob attack to get Vice President Mike Pence to reject the results.

But they’re not talking. Most of them say that they’re waiting to see how the Supreme Court rules on this in three or four years, and Vanity Fair’s Bess Levin sums up the situation:

During the four years that Donald Trump was in office, he and his lawyers made a regular habit of hiding behind the office of the presidency when it came to any investigations of wrongdoing on his part. Sued for defamation by writer E. Jean Carroll, whose rape accusations he claimed were a lie while simultaneously insulting her looks? According to then attorney general William Barr, Trump was acting in his official capacity as POTUS, and therefore should be defended by the Justice Department. Attempted to extort another country into digging up dirt on his political rival? He was just doing what presidents do. Suspected of committing fraud relating to hush-money payments to a porn star? In that instance, his personal attorneys boldly argued that it was unconstitutional for presidents to be investigated for any crimes whatsoever while in office, up to and including shooting a person on Fifth Avenue.

Yes, he really did make that argument back then, but things have changed:

Now, obviously, Trump is no longer president, despite what he and his most insane supporters may believe. And that means he can blather on about executive privilege all he wants, and has in his attempt to stonewall the January 6 committee, but it holds about as much weight as a five-year-old or an inmate at the asylum he should’ve been checked into a long time ago saying it. That’s a position a lot of legal scholars have maintained since Team Trump began insisting Congress has no business gaining access to information detailing exactly what the ex-president was up to before, after, and during the attack on the Capitol.

Politico reports that Congress has other ideas:

Congressional investigators say they’re prepared to seek criminal contempt charges against former White House chief of staff Mark Meadows if he refuses to appear for a deposition on Friday.

Rep. Bennie Thompson (D-Miss.), chair of the House select committee investigating the Jan. 6 attack on the Capitol, said in a letter to Meadows’ lawyer, George Terwilliger III, that Meadows’ continued resistance to cooperating with the panel lacked any plausible defense.

“Simply put, there is no valid legal basis for Mr. Meadows’s continued resistance to the Select Committee’s subpoena,” Thompson wrote.

But wait! There might be! One day!

Let the legal dance begin:

Thompson’s contempt threat is the third he’s issued in recent weeks. The committee has held former Trump aide Steve Bannon in contempt of Congress, a charge the House referred last month to the Justice Department, where it remains pending. Thompson has also threatened contempt against Jeffrey Clark, a former Justice Department official who helped orchestrate Trump’s effort to subvert the 2020 election results.

It’s unclear whether the Justice Department intends to act on the Bannon referral, and committee members have said it’s urgent for the department to act quickly or risk further stonewalling from Trump allies.

Terwilliger issued a statement earlier Thursday claiming that Meadows is “immune” from congressional testimony under long-standing Justice Department opinions. He said President Joe Biden is “the first President to make no effort whatsoever to protect presidential communications from being the subject of compelled testimony.” Meadows, Terwilliger added, will defer to an instruction from former President Donald Trump and decline to cooperate.

That is, Meadows will defer to Trump, who is right now as much the president as Biden is, or something like that, but Biden disagrees with that notion:

The White House on Thursday sought to bolster Thompson’s position, sending a letter to Terwilliger expressing Biden’s wish to waive executive privilege for testimony related to the Jan. 6 attack on the Capitol.

“For that reason, and others, your client has now been advised that (i) ‘an assertion of privilege is not justified with respect to testimony and documents’ relevant to the Select Committee’s investigation, and (ii) the President will not be asserting any claims of executive privilege or testimonial immunity regarding subjects about which the Select Committee seeks documents and testimony from Mr. Meadows,” Thompson wrote.

Trump is not the president. Period. Case closed:

Thompson said he expected Meadows to provide all relevant documents and deposition testimony by Friday or face a likelihood of criminal and civil proceedings against him.

Thompson noted that even if Meadows intended to fight the committee’s requests, he was required to appear and assert any privileges he thinks would bar his testimony.

“If there are specific questions during that deposition that you believe raise legitimate privilege issues, Mr. Meadows should state them at that time on the record for the Select Committee’s consideration and possible judicial review,” Thompson wrote.

He added that any documents Meadows believes should not be disclosed should still be itemized in a “privilege log” so the committee can assess his claims.

That is how this has always been done. Explain why you won’t answer this or that or the other thing, item by item. What makes you so special that you won’t do that? This will be unpleasant.

But this will be resolved, probably rather soon. But then things will get even worse for Trump. CNN has been keeping score. Trump is losing everywhere:

The Trump Organization could lose the keys to an 18-hole public golf course with views of the Manhattan skyline in the coming weeks, making it another likely casualty to stem from former President Donald Trump’s actions on January 6 before rioters stormed the US Capitol.

New York City officials terminated the licensing deal in the days after the insurrection with Mayor Bill de Blasio saying, “The City of New York will not be associated with those unforgivable acts in any shape, way or form.”

Trump sued to reinstate it and his attorneys have signaled that they will appeal any adverse rulings, potentially extending the fight for months over who will manage the course known as Trump Golf Links at Ferry Point Park.

But that’s just one more headache:

Trump’s continued efforts to upend the 2020 presidential election, including a September letter to Georgia’s Secretary of State asking him to decertify the state’s results, has provided new fodder for the ongoing criminal investigation by Fulton County’s district attorney.

The litigation is one of many involving Trump and his business and comes as the company has been indicted on New York state charges relating to an alleged 15-year tax fraud scheme and faces ongoing civil and criminal investigations. The company has pleaded not guilty to the charges and Trump has called the investigations politically motivated.

But these are criminal investigations of felony crimes:

Recently, a new grand jury was impaneled because an earlier grand jury was set to expire to hear evidence from the Manhattan District Attorney’s ongoing investigation into whether the Trump Organization and its executives inflated or lowered valuations to mislead lenders, insurers and tax authorities, a person familiar with the matter said.

That was wire fraud one way and tax fraud the other way, and then there’s this:

Last month Trump sat for a four-hour deposition in a lawsuit alleging an assault in 2015 outside of Trump Tower. On Monday, a judge ruled that the Washington, DC, attorney general’s lawsuit alleging Trump improperly benefited from the President’s Inaugural Committee could move to trial. The judge dropped the Trump Organization from the lawsuit but its hotel on Pennsylvania Avenue remains part of the case.

A federal appeals court will hear arguments next month on a defamation lawsuit brought by writer and former magazine columnist E. Jean Carroll, who has accused Trump of raping her in a department store in the mid-1990s. Trump has denied the allegations. And Trump has been ordered by a judge to sit for a deposition by December 23 in a defamation lawsuit brought by former “Apprentice” contestant Summer Zervos, who has accused Trump of sexual assault. Trump has denied the allegations.

But wait, there’s more:

In August two-thirds of the residents of a 35-story condo tower in White Plains, New York, voted to remove the Trump name from the building and officially change the building name, which has been Trump Tower at City Center since it opened in 2005, said Anthony Schembri, the condo board president. That followed earlier moves by other buildings to strip the Trump name from the properties.

That’s how Trump made a fortune. Licensing fees. Developers paid big money for the right to slap his name, in giant gold letters, on their project. No one wants to do that now. His name is poison now:

The Ferry Point lawsuit involves a battle over the license to manage the Bronx golf course, which was built on the site of a former landfill and has been licensed to the Trump Organization since 2012. The course is designed by pro-golfer Jack Nicklaus’s company and a clubhouse and restaurant on the grounds opened in 2019. A presidential seal is imprinted on the grass, according to one Instagram post.

Well, forget that:

Days after the January 6 riot on the US Capitol, de Blasio pledged to terminate the city’s relationships with Trump, ending Trump’s management of the Central Park Carousel, two ice skating rinks and Ferry Point.

Five days after the Capitol riot, the PGA of America cancelled its agreement to host the 2022 championship tournament at Trump’s Bedminster golf course in New Jersey saying doing so would be “detrimental” to its brand, and the Royal & Ancient Golf Club of St. Andrews said it would not host any events for the “foreseeable future” at Trump’s Turnberry golf course in Scotland.

So the Bronx golf course is gone;

Last month the city’s Franchise and Concession Review Committee voted 4-2 to award the remaining 13 years of the license to Bobby Jones Links, an Atlanta-based golf course operator.

Park officials told Trump that the licensing agreement ends this Sunday. Trump asked the judge to delay the deadline and she agreed for now.

Even if the judge finds that Trump didn’t materially breach the contract, the battle is likely not over. The city could appeal the ruling or move to terminate Trump’s licensing agreement “at will,” and Trump’s lawyers have put the price of a termination payment at $30 million, a figure the city has not endorsed.

This is over:

“We’re ready to go,” Whitney Crouse, founding partner of Bobby Jones Links, told CNN before the judge’s decision to delay the changeover. “We’re going to keep all the employees. It’s going to be as good or better as before.”

Crouse said he’s aware of the risk that Trump could use his “bully pulpit” to go after them, but said they bid for the contract because they are confident New York will prevail in the litigation.

“We’ve thought long and hard about that,” he said. “I’m sure something will be said, and it will be in the press, and it will be controversial but six months from now or next year when golf season begins, golfers will have forgotten the issue.”

Crouse added, “The world will move on as it has with other things with Mr. Trump.”

It seems that the legal dances are almost over. No need to call Perry Mason. Those shows may be in reruns forever. But this show is over.

About Alan

The editor is a former systems manager for a large California-based HMO, and a former senior systems manager for Northrop, Hughes-Raytheon, Computer Sciences Corporation, Perot Systems and other such organizations. One position was managing the financial and payroll systems for a large hospital chain. And somewhere in there was a two-year stint in Canada running the systems shop at a General Motors locomotive factory - in London, Ontario. That explains Canadian matters scattered through these pages. Otherwise, think large-scale HR, payroll, financial and manufacturing systems. A résumé is available if you wish. The editor has a graduate degree in Eighteenth-Century British Literature from Duke University where he was a National Woodrow Wilson Fellow, and taught English and music in upstate New York in the seventies, and then in the early eighties moved to California and left teaching. The editor currently resides in Hollywood California, a block north of the Sunset Strip.
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