I have uploaded the opinion handed down this evening by the U.S.D.C. for the Northern District of Texas (O’Connor, J.) overturning the ACA.   Needless to say, I thought that the decision was important enough that it should be uploaded even before I had an opportunity to read it.  Thus, I cannot summarize it or comment upon it at this point.

I am not clear on the current procedural posture of the case.  For instance, it does not appear that the court issued some sort of relief to the plaintiffs that would, without a stay, either immediately stop the ACA or give a right to an appeal without further proceedings in the district court.

I will update as matters are clarified.

Today, America Media, Inc. (“AMI”) the parent entity of the National Enquirer entered into a non-prosecution agreement with the U.S. Attorney for the Southern District of New York.  I have posted it here.  I suspect that, due to the sentencing of Michael Cohen, the AMI agreement will not get as much attention as it deserves.  It is, however, a blockbuster.

The agreement has as an exhibit a two-page “Statement of Admitted Facts” that provides, in part, as follows:

• • “In or about August 2015, David Pecker, the Chairman and Chief Executive Officer of AMI, met with Michael Cohen, an attorney for a presidential candidate, and at least one other member of the campaign [presumably Donald Trump].  At the meeting, Pecker offered to help deal with negative stories about that presidential candidate’s relationships with women by, among other things, assisting the campaign in identifying such stories so they could be purchased and their publication avoided. Pecker agreed to keep Cohen apprised of any such negative stories.”  Statement of Admitted Facts, ¶ 3.

• • “In or about June 2016, an attorney representing a model and actress attempting to sell her story of her alleged extramarital affair with the aforementioned presidential candidate contacted an editor at the National Enquirer. Pecker and the editor called Cohen and informed him of the story. At Cohen’s urging and subject to Cohen’s promise that AMI would be reimbursed, the editor began negotiating for the purchase of the story. On June 20, 2016, the editor interviewed the model about her story. Following the interview, AMI communicated to Cohen that it would acquire the story to prevent its publication.”  Statement of Admitted Facts, ¶ 4.

• • On or about August 5, 2016, AMI entered into an agreement with the model to acquire her “limited life rights” to the story of her relationship with “any then-married man,” in exchange for $150,000. It was also agreed that AMI would feature her on two magazine covers and could publish over one hundred magazine articles authored by her. AMI agreed to pay the model $150,000 — substantially more money than AMI otherwise would have paid to acquire the story — because of Cohen’s assurances to Pecker that AMI would ultimately be reimbursed for the payment. Despite the cover and article features to the agreement, AMI’s principal purpose in entering into the agreement was to suppress the model’s story so as to prevent it from influencing the election. At no time during the negotiation for or acquisition of the model’s story did AMI intend to publish the story or disseminate information about it publicly. On or about August 10, 2016, AMI sent $150,000 to an attorney representing the model.  Statement of Admitted Facts, ¶ 5.

• • At all relevant times, AMI knew that corporations such as AMI are subject to federal campaign finance laws, and that expenditures by corporations, made for purposes of influencing an election and in coordination with or at the request of a candidate or campaign, are unlawful. At no time did AMI report to the Federal Election Commission that it had made the $150,000 payment to the model.  Statement of Admitted Facts, ¶ 8.

As reported in an article by Eric Wemple in the Washington Post,  Tucker Carlson: Trump Is a Crime Victim, Trump apologist Fox News commentator Tucker Carlson is quoted as follows:

Remember the facts of the story. These are undisputed: Two women approached Donald Trump and threatened to ruin his career and humiliate his family if he doesn’t give them money. Now, that sounds like a classic case of extortion. Yet for whatever reason, Trump caves to it and he directs Michael Cohen to pay the ransom. Now more than two years later, Trump is a felon for doing this. It doesn’t seem to make any sense. Oh, but you’re not a federal prosecutor on a political mission. If you were a federal prosecutor on a political mission, you would construe those extortion payments as campaign contributions. You’d do this even though the money in question did not come from or go to Donald Trump’s presidential campaign. Then you’d claim that Trump and Michael Cohen violated campaign finance law because they didn’t publicly disclose those payments, despite the fact that disclosing them would nullify the reason for making them in the first place, which was to keep the whole thing secret. That is the argument you would make, both in federal court and through your proxies on cable television. It is insultingly stupid but because everyone in power hates the target of your investigation, nobody would question you, and that’s what’s happening right now.

(Emphasis in the WaPo original.)

Based on the Statement of Admitted Facts in the AMI matter, we now know:

• As to Karen McDougal, at least, there was no extortion involved.  Rather, she simply wanted to profit from her relationship with Trump.  It was Trump’s agent, acting on Trump’s behalf, who brought the matter to Trump’s attention.  McDougal never requested money from Trump, did not know that AMI was acting as Trump’s agent, and expected the full and complete story to make its way in the public domain.  Manifestly, she was not being paid for her public silence, but rather for her willingness to use the AMI publications to broadcast the story.

• Carlson’s contention that the payments were not campaign contributions is palpably false.  As ¶ 4 of the Statement of Admitted Facts states: “At the meeting, Pecker offered to help deal with negative stories about that presidential candidate’s relationships with women by, among other things, assisting the campaign in identifying such stories so they could be purchased and their publication avoided. Pecker agreed to keep Cohen apprised of any such negative stories.”  In other words, from the very beginning, even before it was known that McDougal was willing to publicly disclose her story, Trump, Cohen, and Pecker planned to put her story or any similar story within a cone of silence in order to aid the campaign.

Distilled to its essence, with regard to McDougal at least, (1) Trump was not the victim of an extortion attempt and (2) the payment of hush money to McDougal was a deliberate and calculated campaign violation.

Oh, yeah.  We know that Tucker Carlson is nothing but a dishonest Trump apologist.

Given the momentous events concerning the various criminal investigations of Trump, an important opinion by a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit may go virtually unnoticed.

The ruling comes in the case of East Bay Sanctuary Covenant v. Trump. That’s the case I posted earlier in which the District Court (per Tigar, J.) issued a nationwide injunction against enforcement of the rule that, together with Trump’s proclamation, had the effect of making “any alien who enters the United States across the southern border at least over the next ninety days, except at a designated port of entry, is categorically ineligible to be granted asylum.”  The appeals court, by a 2-1 majority, maintained in place the TRO.  You may recall that it was Judge Tigar’s initial decision that caused Trump to go off on a rant against the Ninth Circuit.

So, today was a bad day for Trump:

1. He was presented with prosecutors clearly closing in on him and his family for their criminal activities.
2. The stock market continued its downward course.
3. His first Secretary of State, Rex Tillerson, was so critical of Trump that Trump had to Tweet:  “Rex Tillerson didn’t have the mental capacity needed [to be Secretary of State]. He was dumb as a rock and I couldn’t get rid of him fast enough. He was lazy as hell.”
4. And, finally, the Ninth Circuit blocked him from causing harm to immigrants seeking asylum.

What have I missed?

Revised and Updated  I’ve revised and updated this post. Below, you will find the links to all three of the filings by the prosecutors today in the Cohen case and in the Manafort case.

First, here’s the sentencing memorandum in the Cohen case filed by the prosecutors from the USDA Office of the Southern District of New York .

Second, here’s the sentencing memorandum in the Cohen case filed by the Office of Special Prosecutor.

Finally, here’s the memorandum filed by the Office of Special Prosecutor in the Manafort case in support of its breach determination.

As noted earlier, presumably tomorrow or Sunday, I will be uploading the transcript of Comey’s testimony before the House Judiciary Committee.

Further Update: Comey Transcript

As promised, here’s the Comey Transcript.  I have not had the opportunity to review it, but I understand that it is redacted.

Today, in Tairou v. Whitaker, the U.S. Court of Appeals for the Fourth Circuit (per Gregory, C.J.) held that for purposes of granting asylum:

1. An individual who is gay is a member of a valid particular social group (citing Bringas-Rodriguez v. Sessions, 850 F.3d 1051, 1073 (9th Cir. 2017) and Nabulwala v. Gonzales, 481 F.3d 1115, 1117 (8th Cir. 2007);
2. A threat of death constitutes a threat of persecution;
3. If an individual receives multiple death threats, the death threats establish that the individual was subjected to past persecution;
4. If an individual proves that he or she was subjected to past prosecution, the individual is entitled to a rebuttable presumption that he or she has a well-founded fear of future prosecution.

In this case, Tairou was a citizen of Benin.  He was either gay or bi-sexual (the opinion is unclear on this) and his wife is a lesbian.  He and his family were the subject of physical attacks and threats both from his family and his neighbors.  The immigration judge had determined that the Tairou “had established membership in a particular social group defined [by the Immigration Judge] as ‘homosexuals in Benin.'”   The Fourth Circuit held that:

Tairou proved that he was subjected to past persecution in Benin, he is entitled to the presumption of a well-founded fear of future persecution.  We do not decide whether the Government can rebut this presumption. Instead, we remand to the BIA to reconsider the question under the proper presumption.

Slip op. at 11.  (Citations omitted.)

One point that is of some interest is that “country conditions” in Benin concerning the danger to gay individuals was based in part on a Canadian governmental travel advisory that painted a more dangerous picture for gay individuals than the U.S. State Department Benin Country Report (“A Canadian governmental travel advisory for Benin stated that although homosexuality was not illegal, it could lead to arrest under laws such as indecent exposure.  . . . However, a United States State Department Benin Country Report indicated that homosexual behavior was discouraged but ‘neither prosecuted nor persecuted.’”)

Here is the criminal information that Michael Cohen plead pled guilty to today.

The Third Circuit has affirmed the convictions of Bill Baroni and Bridget Anne Kelly.  They were the principal participants in the “Bridgegate” scandal in New Jersey.  However, the Court reversed two of the seven counts against them and remanded the entire case back to the trial court for resentencing.  This is worse than it looks.

First, Baroni and Kelly will have time to file a cert petition with the Supreme Court.  Without looking at the exact rules on scheduling, this should allow them at least another six months out of jail even if, as is likely, the Supreme Court rejects their cert petition.

Next, there will be several months of back and forth before the trial court actually passes new sentences and they are actually incarcerated.  This could easily allow them to be out of jail through to next Fall, possibly longer.

Under the original sentencing, Baroni was given two years in prison, Kelly only eighteen months.  My guess is that, as a practical matter, their actual sentences will run from the time they begin serving them through November 6, 2020.

There were two new filings in the Supreme Court in the challenge to appointment of Matthew Whitaker as Acting Attorney General.

The Solicitor General filed a response to the Petitioner’s Motion in the Michaels case.  The Solicitor General’s response first notes that the petitioner in Michaels:

[D]oes not assert any personal-capacity claims against former Attorney General Lynch or any other governmental official, nor does he assert that the Attorney General had any personal role in any matter relating in any way to his claims. The “real party in interest”  . . . is thus the Department of Justice or the United States itself, not the individual personally performing the duties of the Attorney General at a particular time.

Motion at 5, internal citation omitted.

Thus, “[a]t all times, the suit has run against a particular Attorney General in name only.”

Moreover, because the lawsuit is against a particular Attorney General in name only, there is no urgency in addressing the Constitutional issue at this point.  Further, for that reason, Michaels has no standing to raise the issue of the legitimacy of the Whitaker appointment.

As to the substantive question, the response essentially restates the arguments advanced in the November 14 opinion of the U.S. Department of Justice, Office of Legal Counsel.  Specifically, the Solicitor General argues that the Vacancies Act provides an alternative to the Attorney General Succession Act.  Motion at 14-20.

Finally, the Solicitor General advances what I believe to be a questionable proposition that:

Although the Attorney General is surely a principal officer for purposes of the Appointments Clause, an individual who merely acts temporarily as Attorney General is not. Both
longstanding precedent of this Court and historical practice demonstrate that “the temporary nature of active service weighs against principal-officer status.”

Motion at 21-22.

In contrast to the Solicitor General’s position is the position set forth in the amicus brief of Morton Rosenberg.  Mr. Rosenberg:

[S]erved as an analyst in the American Law Division of the Congressional Research Service for over three decades. In that capacity, he advised Congress on numerous issues of constitutional law, administrative law, and congressional practice and procedure, with a special emphasis on Executive appointments. He is considered a leading authority on the Federal Vacancies Reform Act, having been intimately involved with its enactment.

Rosenberg argues that:

The Vacancies Reform Act was a response to [the] chaos [created when the Office of Legal Counsel sought to create “options” allowing for temporary appointments of lower-level DOJ employees (and others) outside of a congressionally mandated scheme, through creative readings of agencies’ enabling legislation].   [The Vacancies Reform Act was] meant to close down those outside options and limit the Executive’s appointment discretion. It makes no sense to believe that Congress would find such intervention necessary to take away the President’s “option” to appoint lower-level DOJ employees, and yet invite many times the chaos by creating a new “option” for the President to do so for the Attorney General, the most important and powerful Senate-confirmed employee in the Department. Indeed, that illogical premise finds no support in the statute, its legislative history, or prior case law. Instead, each of these sources confirms that the Vacancies Reform Act did nothing to break Congress’s 150-year practice regarding the succession of the Attorney General.

He then concludes simply: “Rod Rosenstein is the Acting Attorney General.”

Amicus Brief at 3-4.

I post here and upload source material such as judicial opinions because I believe that mainstream news sources have abdicated their responsibility to do so.  This is not, however, uniformly the case.

Recently, Maine Governor Paul LePage was ordered to comply with Maine’s Medicaid expansion law, which extends health care coverage to as many as 80,000 low-income Mainers.  That story was covered by Portland Press Herald.  Go to the link to the story.  Not only does the story contain a cloud-based link that allows readers to download the entire judicial opinion, but it also has a link to a story in August reporting that the Maine Supreme Judicial Court ruled against the administration when it sought to delay implementation of the expansion until the Legislature funded the state’s cost, estimated to be about $55 million a year.  That story contains a cloud-based link to the opinion of the Maine Supreme Judicial Court.

Linking to source material that is the basis of news stories should be the rule rather than the exception.  So, if the Portland Press Herald can regularly follow this practice, why can’t the Washington Post, New York Times, CNN, etc., do so?

The case of People v. Donald Trump is the case where the New York Attorney General is seeking relief against Donald Trump, Donald Trump, Jr., Ivanka Trump, Eric Trump, and the Trump Foundation.  In its petition, the N.Y. AG:

[A]lleges that the Foundation and its board members have transacted business illegally and abusively over a number of years. The allegations focus on Respondents’ failure to operate and manage the Foundation in accordance with corporate and statutory rules and their fiduciary obligations, resulting in the misuse of charitable assets and self-dealing. Petitioner also alleges that charitable assets, primarily consisting of money donated by outside sources, were used to promote Mr. Trump’s properties, purchase personal items, advance Mr. Trump’s presidential election campaign, Donald J. Trump for President, Inc. (“Campaign”), and settle certain personal legal obligations.

Various causes of action are alleged:

(1) breach of fiduciary duty and waste under New York’s Not-For Profit Corporation Law (“N-PCL”) against the Individual Respondents; (2) failure properly to administer Foundation assets and waste under New York’s New York Estates, Powers and Trusts Law (“EPTL”) against the Individual Respondents; (3) wrongful related party transactions against Mr. Trump as defined in the N-PCL and EPTL; (4) dissolution of the Foundation under the N-PCL §§ 112 and 1101; (5) dissolution of the Foundation under the N-PCL §§ 112 and 1102; and (6) an injunction pending resolution of the proceeding.

In its opinion, the Court (per Scarpulla, J.) rejected all of the Trump group’s attacks except as to the injunction pending the outcome of the proceedings.  Thus, the case will proceed.

It is of some significance that the Court rejected the Trump group’s request to conduct discovery.  Slip. op. at 26-27, fn. 14.  In other words, this case is on a fast track.