|
川普官司纏身 – 開欄文(補增)
|
瀏覽2,545 ｜回應20｜推薦2 |
|
|
|
我不厭其煩的刊登有關川普法律糾紛的評論和新聞報導(此欄、《政治學》02/07/2024貼文、與《美國123》01/27/2024貼文)，並不單單是因為我厭惡他；而是因為：
1) 整個過程不但是十幾二十堂活生生的法律課，它們也顯示了：「法權」和「三權分立」的實際運作(前文第3節；後文第1.2-2)小節)；操作上一些精巧門道；以及兩者在維持社會穩定運作的不可或缺性。值得我們參考和借鏡。
2) 2024美國大選結果對今後10年的中國前景和世界局勢將有重大，甚至可能難以逆轉的影響。
就中國來說，川普再次進入白宮是天大的機緣。在這個「痞子+瘋子」主政下，美國綜合國力的優勢會急速和大幅降低；從而，兩岸「和平統一」的時程有希望提前。
在世界局勢上，川普再度上任後最大的危險是烏克蘭失守；接下來，歐洲安全或呈現骨牌效應；或德、法、意、和波蘭等國決定背水一戰，引發21世紀的第一次歐戰或世界大戰。
後記：
由於本欄的報導/評論/分析篇數越來越多，所以我依例加了這篇《開欄文(補增)》； 12/20/23刊出的第一篇文章只得重新發表一次。造成不便，懇請見諒。-- 02/16/24
本文於 修改第 13 次
|
|
川普「封口費」刑事案將於03/25開審-G. Kates/K. Kaufman
|
|
|
推薦1 |
|
|
|
Trump's first criminal trial set for March 25, judge in "hush money" case says
Graham Kates/Katrina Kaufman, 02/15/24
A New York judge denied former President Donald Trump's request to dismiss criminal charges related to a "hush money" payment and said his trial would proceed as scheduled on March 25, delivering a blow to Trump's efforts to delay what would be the first trial of any former president in U.S. history.
Trump is attending a pretrial hearing in the case, which involves the circumstances surrounding a payment to adult film star Stormy Daniels in 2016. A grand jury voted to indict Trump on March 30, 2023, charging him with 34 felony counts of falsification of business records. Trump has denied wrongdoing and pleaded not guilty. He has repeatedly accused Manhattan District Attorney Alvin Bragg of pursuing the case for political gain.
Judge Juan Merchan denied Trump's motion to dismiss the charges at the beginning of the hearing. "At this point I can inform you that we're moving ahead with jury selection on March 25," he told the court. He later said he expected the trial to last about six weeks.
The hearing in the Trump "hush money" case
Trump's attorneys immediately protested the judge's decision to proceed to trial, saying they expected to be able to discuss timing at the hearing. Todd Blanche, one of the key members of Trump's legal team, said the decision was a "grave injustice" and pointed to the former president's various other legal entanglements.
"We have been faced with compressed and expedited schedules in every one of those trials," Blanche told the judge. "We — meaning myself, the firm and President Trump — have been put into an impossible position."
Merchan set a preliminary trial date of March 25 at a hearing last May, but there had been no other public proceedings in the case since then, and Trump's attorneys had sought to have the charges thrown out.
Speaking outside the courtroom before the hearing got underway, Trump said the case represented a "great double standard" and "election interference."
"There was no crime here at all. This is just a way of hurting me in the election because I'm leading by a lot," he told a crush of cameras. "They want to rush it because they want to get it desperately before the election. … They wouldn't have brought this — no way — except for the fact that I'm running for president and doing well."
The former president acknowledged that he was trying to delay the beginning of the trial, and said the proceedings were taking him off the campaign trial.
"We want delays, obviously, I'm running for election," he said. "How can you run for election when you're sitting in a courthouse in Manhattan all day long? I'm supposed to be in South Carolina right now."
What is Trump accused of?
Trump is accused of participating in a scheme to falsify records to hide a series of payments to his former "fixer" and lawyer Michael Cohen. The payments, prosecutors allege, were reimbursements for a hush money payment to Daniels, whose real name is Stephanie Clifford. She has alleged she had an affair with Trump, and agreed to keep quiet in exchange for $130,000 shortly before the 2016 election.
Trump's lawyers have denied the payments to Cohen were part of a cover-up, saying Trump was reimbursing the former lawyer for legal expenses.
The former president's legal troubles have only grown in the months since the last hearing in the case, and his calendar has filled up with court dates. He's been charged in three other criminal proceedings: federal cases in Washington, D.C., and Florida, and a state case in Georgia.
Trump chose to attend the hearing in New York instead of one also scheduled for Thursday in Georgia, where a judge is hearing evidence related to allegations that District Attorney Fani Willis and that case's special prosecutor Nathan Wade improperly used public funds while pursuing a romantic relationship. Both have confirmed the relationship but denied any financial conflict. The Georgia case involves accusations that Trump and others conspired in an attempt to thwart 2020 election results in the state.
The federal case in Washington, which revolves around Trump's attempts to overturn President Biden's 2020 presidential election win, was originally scheduled for March 4, but that date is now on hold as Trump appeals a rejected presidential immunity claim to the Supreme Court.
本文於 修改第 1 次
|
|
「川普候選人資格」小評
|
|
|
推薦1 |
|
|
|
0. 前言
繼科羅拉多州最高法院取銷川普在該州總統初選候選人資格後(本欄開欄文)，梅因州民政廳廳長根據行政裁量權取消川普在該州總統初選候選人資格。兩案都有相關人士向聯邦最高法院提出釋憲案。
大法官們已經在02/08聽取雙方主張，並詢問雙方法理依據；隨時可以做出決定。根據該案攻防過程，最高法院很可能撤銷川普不具總統初選候選人資格的決定。
格斯丁先生的大作討論聯邦最高法院處理此案的5種可能方式(本欄2024/01/09貼文)。他先說明每種方式所根據的法理、論點、和現實考量；然後就各方式的長處與缺點進行分析。我認為他這篇文章在分析法律層次議題相當清晰外，即使說不上面面俱到，也稱得起考慮周詳。喜歡論證朋友可以多加玩味，以收舉一反三之效。
本文就我認為「川普候選人資格」所顯示的重點議題提出愚見。區區、在下、老夫不是法學專業出身；「看過豬走路」的經驗是我發言依據。
1. 三權分立
如我在「前言」中提到：科州和梅因州取消川普總統初選候選人資格的決定，都根據美國憲法第14修正案中的條款；但達到該「決定」的途徑不同。前者經過法律訴訟程序；後者採取行政裁量程序。最終的決定權則在聯邦最高法院九位大法官腦中；當然，這些大法官也可以拒不受理或把球踢回行政機關(州政府、聯邦政府)，或立法機關(眾議院、州議會)。
我認為「三權分立」是「民主政治制度」的基礎之一，拙作《探討民主政治》中有兩處討論到這個概念(1.2-2)小節、3.1-b.小段)。請參考。「三權分立」做為「民主制度」基礎的前提是：各權必須能夠「獨立」運作。任何「獨裁」體制(如「一黨專政」)都缺乏各權「獨立」運作的空間。
2. 法治
拙作《淺談法律和相關概念》中討論到「法治」概念(1.2-2)小節、3.1-b.小段)。我不是很清楚法哲學中原意論適用的「正當性」有多高；如果考慮到時過境遷和立法者都有其自身利益考量兩個因素；在我看來，原意論不過是「既得利益」階層的一棵「羊頭」而已。
3. 公民社會
從《川普資格法律爭議始末》一文中(本欄2024/02/06貼文)，我們可以看出公民個人以及公民組織在民主社會中的重要性。
公民組織能發揮功能有三個先決條件：
1) 大多數公民有一定的知識水準和理性思考能力。
2) 大多數公民有一定水準的道德觀；例如恥於幹「三客流」勾當(1)。
3) 社會有一定程度的民主制度和法治基礎。
4. 結論
1) 「法治」是以和平方式解決爭端，以及維持社會文定運作兩者最有效的制度。
2) 拭目以待美國聯邦最高法院的高見和決定。
附註：
1. 「三客流」者，「『擦』屁股」、「『舔』屁股」、和「『吹』簫」(又稱「『吹』喇叭」)的G男、女是也。「『三客流』論述」指：在電視或平面媒體上公然妖精打架，而不是進行公評公論的話語；可參考我常說的「援嘴」：從事「『援』交」行為的「名『嘴』」。
本文於 修改第 2 次
|
|
「總統職位」是否屬於「官員身份」？ -- Charlie Savage
|
|
|
推薦1 |
|
|
|
A Legal Outsider, an Offbeat Theory and the Fate of the 2024 Election
Charlie Savage, 02/08/24
WASHINGTON — In the world of American legal scholarship, Seth Barrett Tillman is an outsider in more ways than one. An associate professor at a university in Ireland, he has put forward unusual interpretations of the meaning of the U.S. Constitution that for years have largely gone ignored — if not outright dismissed as crackpot.
But at 60, Tillman is enjoying some level of vindication. When the U.S. Supreme Court on Thursday considers whether former President Donald Trump is barred from Colorado’s primary ballot, a seemingly counterintuitive theory that Tillman has championed for more than 15 years will take center stage and could shape the presidential election.
The Constitution uses various terms to refer to government officers or offices. The conventional view is that they all share the same meaning. But by his account, each is distinct — and that, crucially for the case before the court, the particular phrase “officer of the United States” refers only to appointed positions, not the presidency.
If a majority of the court accepts Tillman’s rationale, then Trump would be allowed to appear on the ballot. At issue is the meaning of Section 3 of the 14th Amendment, adopted after the Civil War, which bars people from holding office if they participated in an insurrection after having sworn to uphold the Constitution as an officer of the United States.
Tillman, heavily bearded with black-rimmed glasses and a bookish demeanor, flew to the United States this week to watch the arguments. With Josh Blackman, who teaches at South Texas College of Law Houston, Tillman submitted a friend-of-the-court brief and asked to participate in arguments, but the court declined.
Still, his hobbyhorse will be on the Supreme Court’s agenda, and it has drawn as much zealous backing as it has ferocious pushback.
Trump’s legal team led with the idea in its brief to the court, and many supporters of overturning Colorado’s disqualification of Trump have invoked it — including three former Republican attorneys general, Edwin Meese, Michael Mukasey and William Barr.
But conservative former Judge J. Michael Luttig, in a withering series of posts on X, formerly Twitter, mocked Trump and his supporters for having “put all of their eggs in Blackman’s and Tillman’s tattered basket of constitutional interpretation.” He cited a recent Lawfare article that called attention to a letter Justice Antonin Scalia sent Tillman in 2014 rejecting his theory. (Tillman and Blackman published it in an article last year.)
During a video interview from his book-cluttered living room in Dublin, Tillman gave a rueful chuckle and gestured toward his outsider status — and location — as he said that critics were objecting “in the most mean-spirited and personal way, without any attempt to grapple with the ideas.”
“It’s very dispiriting,” he added. “But fortunately, I’m here. I’m in a position where I can walk away from such things.”
Akhil Reed Amar, a Yale Law School professor who submitted a brief siding with Colorado’s top court, portrayed Tillman’s theory as a “gimmick” that relied on tracing words in “all these interesting little ways that makes no sense of the thing as a whole.” He predicted it would get at most three votes on the nine-member court.
At the same time, Amar described Tillman as a “brilliant” person who was at last gaining mainstream recognition.
“Tillman is one of the genuinely interesting people in our world, and the world hasn’t rewarded him very much,” he said. “Think about the strength of character that is required to keep plodding away for 30 years on some of these things, when no one seems to be paying any attention to you.”
Tillman declined to predict how the Supreme Court would rule but said that even one vote based on his position would lend it credence as a “serious or reasonable point of view.” But asked whether he would feel vindicated if a majority of justices were to endorse it, he struck a tone of resignation.
In one sense, yes, he said. “But in the sense of would there be any vindication in the largest element of American legal academia? I think the answer is no. I think they would still say what the largest numbers have already said, which is that the particular view I put forward is wrong and if the Supreme Court adopted it, they did it for pragmatic reasons they don’t wish to acknowledge.”
The Supreme Court could also decide the case on other grounds. It could uphold the Colorado decision. Or it could restore Trump to the ballot based on different reasoning, like saying that Trump’s actions leading up to the Jan. 6, 2021, Capitol riot fell short of insurrection, or that — as Tillman also argues — Section 3 would need a statute to be enforceable.
But earlier in the case, a trial judge in Denver embraced Tillman’s idea. While the judge ruled that Trump’s efforts qualified as insurrection, she kept him on the ballot because, she said, presidents are not officers of the United States. The Colorado Supreme Court later disagreed. But Tillman said the fact that a lower court had embraced his position already meant it could no longer be dismissed as off the wall.
An Orthodox Jew who goes offline for the Sabbath at sundown each Friday, Tillman was born in New York in 1963, the second of two children. His father was a co-owner of a factory in Yonkers and his mother a homemaker.
His parents relocated to the suburbs of Rockland County, New York, when he was 7, he said, because they were alarmed that he had witnessed a murder on a playground. He said a woman had slapped a drunk man, who chased her until a janitor intervened and choked the man to death.
After earning an undergraduate degree in economics from the University of Chicago in 1984, he worked as a commodities trader and researcher until 1997, when he enrolled in Harvard Law School. Once he graduated in 2000, he bounced around for a decade, completing four judicial clerkships and a stint at two law firms — while writing academic articles on the side.
He wanted to be a law professor but had difficulty finding a full-time position. In 2011, Maynooth University School of Law and Criminology hired him as a lecturer, and he moved to Ireland with his wife, now a secretary at a Dublin synagogue, and their four children. In his spare time, he said, he enjoys stargazing and East Asian history and political philosophy. This term, he is teaching equity and trusts law.
He said he was grateful for the job, but he also sounded somewhat lonely professionally. Most of his Maynooth colleagues, he noted, focus on legal questions related to Ireland or the European Union, rather than on the American constitutional issues that preoccupy him.
Tillman described himself as the perpetual odd man out. His great passion, he said, has been to show that the original meaning of words and phrases in the Constitution are rooted in parliamentary understandings that quickly disappeared after its ratification, as American thinking shifted to a separation-of-powers model that emphasized the judiciary rather than Congress. Few scholars on the left or the right, he said, are interested.
“I’m not on anybody’s speed dial back in the United States — my work is very unusual,” he said, adding, “If you try to hawk that or to sell that position in the United States, within legal academia, the opportunity of finding an audience is vanishingly small.”
Tillman employs a hyperclose reading of the Constitution. He assumes that the text was written with tremendous precision and intentionality, so subtle distinctions are significant — and their meaning can be inferred by carefully tracing words through the text.
His argument that presidents are not officers of the United States traces back to his response to a 1995 law journal article by Amar and his brother, Vikram Amar, a professor at the University of California, Davis.
A law that puts the speaker of the House and the Senate president pro tem in the line of presidential succession is unconstitutional, the Amars argued, partly because of a provision that bars “holding any office under the United States” while also being a member of Congress. In a footnote, they observed that a “quibbler” might try to insist that the presidency is not an office under the United States, even as they rejected that idea.
“The whole basis of the paper, as I understood it, was that the varying terminology in the Constitution for ‘office’ and ‘officer’ all meant the same thing,” Tillman recalled. “I set out on an intellectual project of saying, ‘Well, what if the Amars are wrong? What if the different “officer” phraseology in the Constitution had different meanings?’”
In short, Tillman became a quibbler. As a law clerk in 2008, for example, he asserted in a paper that the winner of the 2008 presidential election, which pitted Sen. Barack Obama against Sen. John McCain, could keep his Senate seat while also serving as president.
Tillman made various iterations of that argument, eventually catching the eye of William Baude, a University of Chicago law professor. In a short essay in 2016, Baude appeared both bemused and intrigued.
“When you read an individual Tillman piece, you will notice exceedingly technical arguments combined with an almost urgent voice,” Baude wrote. “You cannot help but think the author is brilliant, and you cannot help but wonder if the author is rather eccentric. As you read more of the pieces together, you will realize that he has a constitutional project, that he pursues it with great skill and knowledge, and that if he didn’t do it, nobody would.”
That did not mean Baude agreed. Last summer, he co-wrote a widely cited article arguing on originalist and textualist grounds that Trump is ineligible to be president again. The essay repudiated Tillman’s view, saying that phrases like “officer of the United States” must be read “sensibly, naturally and in context, without artifice” that would render it a “‘secret code’ loaded with hidden meanings.”
Tillman’s theory started to get more attention as Trump’s presidency raised novel legal issues. After Trump won the 2016 election, Blackman said he recognized that a president who owned a global hotel empire would lead to legal fights over the Constitution’s foreign emoluments clause. It bars people holding “any office of profit or trust under” the United States from accepting certain payments from foreign states.
Blackman approached Tillman and proposed they write about the office issue. In a case challenging Trump’s acceptance of foreign government patronage at the hotel he then operated in Washington, the two scholars submitted a friend-of-the-court brief arguing that the clause does not cover the presidency.
In a 2018 ruling, a federal judge in Maryland engaged at length with Tillman’s view — and rejected it. That case was eventually dismissed on other grounds. But the Colorado ballot case has now given the line of inquiry even greater salience.
“His work was frantic,” Blackman said. “Now everyone is listening.”
c.2024 The New York Times Company
本文於 修改第 2 次
|
|
聯邦上訴法院裁定：川普無免責權 -- Amelia Nierenberg
|
|
|
推薦1 |
|
|
|
請參看《川普無免責權裁定分析》(該欄2024/02/07 )。
Morning Briefing, the New York Times
Amelia Nierenberg, 02/07/24
Good morning. We’re covering a court ruling against Donald Trump and an Israeli report on the death of hostages in Gaza.
Plus, a Korean food renaissance in New York. Donald Trump is at the center of at least four separate criminal investigations. Dave Sanders for The New York Times
A court rejected Trump’s immunity claim
A federal appeals court rejected Donald Trump’s claim of absolute immunity in a criminal indictment accusing him of plotting to overturn the 2020 election. The court ruled that he was subject to federal criminal law — like any other American — and must stand trial.
The ruling is unlikely to be the final word. Trump, who is on track to win the Republican presidential nomination, is expected to appeal to the Supreme Court.
But it is an important moment in American law. The ruling answered a question that an appeals court had never addressed: Can former presidents escape being held accountable by the criminal justice system for things they did while in office?
“For the purpose of this criminal case, former President Trump has become citizen Trump, with all of the defenses of any other criminal defendant,” the panel of judges wrote. “But any executive immunity that may have protected him while he served as president no longer protects him against this prosecution.”
What’s next: If the Supreme Court agrees to hear the case, there is a chance that a trial on the election charges would occur before the general election in November. But if the justices take their time, it is possible that a trial could be delayed until after the election. Were Trump to win, he would be in a position to ask the Justice Department to dismiss the case or even seek to pardon himself.
For more: Here is where each of Trump’s four criminal cases stand.
(下略)
本文於 修改第 2 次
|
|
川普資格法律爭議始末 – Nicholas Riccardi
|
|
|
推薦1 |
|
|
|
How two sentences in the Constitution rose from obscurity to ensnare Donald Trump
NICHOLAS RICCARDI, 02/05/24
DENVER (AP) — In the summer of 2020, Gerard Magliocca, like many during the coronavirus pandemic, found himself stuck inside with time on his hands.
A law professor at Indiana University, Magliocca emailed with another professor, who was writing a book about overlooked parts of the Constitution’s 14th Amendment. He decided he would research the history of two long-neglected sentences in the post-Civil War addition that prohibit those who “engaged in insurrection or rebellion” from holding office.
Magliocca posted a copy of his research — which he believed was the first law journal article ever written about Section 3 of the 14th Amendment — online in mid-December of 2020, then revised and re-posted it on Dec. 29. Eight days later, President Donald Trump’s supporters stormed the U.S. Capitol to prevent the certification of his loss to Joe Biden. Magliocca watched as Republicans such as Sens. Mitch McConnell and Mitt Romney described the attack as an “insurrection.”
That night, Magliocca composed a quick post on a legal blog: “Section Three of the Fourteenth Amendment,” he wrote, “might apply to President Trump.”
Just over four years later, the U.S. Supreme Court will have to determine whether it does. On Thursday, the nation’s highest court is scheduled to hear arguments over whether Trump can remain on the ballot in Colorado, where the state’s Supreme Court ruled that he violated Section 3.
It’s the first time in history that the nation’s highest court has heard a case on Section 3, which was used to keep former Confederates from holding government offices after the amendment’s 1868 adoption. It fell into disuse after Congress granted an amnesty to most ex-rebels in 1872.
Before the violent Jan. 6, 2021, attack on the Capitol, even many constitutional lawyers rarely thought about Section 3, a provision that isn’t taught at most law schools and hadn’t been used in court for more than 100 years. Legal scholars believe the only time it was cited in the 20th century was to deny a seat in Congress to a socialist on the grounds that he opposed U.S. involvement in World War I.
The clause’s revival is due to an unlikely combination of Democrats and Republicans, liberals and conservatives, all rediscovering 111 words in the nation’s foundational legal document that have now become a threat to the former president’s attempt to return to office.
THE FIRST TARGETS
Once she had dried her tears after watching rioters storm the Capitol, Norma Anderson sat down with one of the multiple copies of the Constitution she keeps around her house in the Denver suburbs and reread the 14th Amendment.
“I made the connection,” Anderson, now 91, said in an interview.
Anderson is a former Republican leader of Colorado’s General Assembly and state Senate, and eventually would become the lead plaintiff in the case now before the Supreme Court. The evening of Jan. 6, she read the provision that prohibited anyone who swore an oath to “support” the Constitution and later “engaged in insurrection” against it, or provided “aid and comfort” to its enemies, from holding office.
Anderson didn’t yet have the chance to spread the word beyond her own circle, but in the days after Jan. 6, thanks to scholars such as Magliocca and the University of Maryland law professor whose book project had inspired him, Mark Graber, Section 3 started its slow emergence from obscurity.
“We were the two people doing a little work on Section 3,” Graber said of Magliocca and himself. “We thought this is real interesting; it makes great chitchat at the American Legal Historians Society.” He added, “Then Donald Trump did academics a favor.”
Though the provision was occasionally mentioned, conversation in Washington and the legal profession in general remained dominated by Trump’s second impeachment — where he was acquitted by the Senate after 43 Republicans voted not to convict him.
It took months before the first mention of Section 3 in a public document. Free Speech For People, a Massachusetts-based liberal nonprofit, sent letters to top election officials in all 50 states in June 2021, warning them not to place Trump on the ballot should he run again in 2024 because he had violated the provision.
The group didn’t hear back from any of them.
“People were just treating it as something that was not serious,” recalled John Bonifaz, the group’s co-founder.
In January 2022, Free Speech For People filed a complaint in North Carolina to disqualify Republican Rep. Madison Cawthorn under Section 3 for his involvement in the rally that preceded the Capitol attack. But Cawthorn lost his primary in that year’s midterms, mooting the case.
At the same time, another liberal watchdog group was starting its own Section 3 campaign.
After Jan. 6, Citizens for Responsibility and Ethics, also known as CREW, in Washington was focused on Trump’s impeachment and other possible legal penalties against those who participated in the Capitol attack before exploring other remedies, said its chief counsel, Donald Sherman.
By January 2022, the group decided to test Section 3 in court.
“It wasn’t just Trump we were focused on,” Sherman said in an interview. “One thing we’ve been very careful about is we don’t think it’s appropriate to pursue outside or longshot cases.”
Looking for a lower-level defendant, Sherman’s organization zeroed in on Couy Griffin. The subject of one of the earliest Jan. 6 prosecutions, Griffin already has a rich legal record. He was recorded in a restricted area of the U.S. Capitol as head of a group called Cowboys for Trump. Griffin was convicted of illegally entering the Capitol, but acquitted of engaging in disorderly conduct.
He still served as a commissioner in a rural New Mexico county, which kept CREW’s attention on him. On Sept. 6, 2022, a New Mexico judge ordered Griffin removed from his position. It was the first time in more than 100 years an official had been removed under Section 3. Griffin has appealed to the Supreme Court.
CREW prepared to turn to other Section 3 targets. But it quickly became clear Trump would be next. He announced his campaign for president on Nov. 15, 2022.
‘IS THIS FOR REAL?’
Both Free Speech For People and CREW had similar discussions about how to challenge a presidential candidacy. They knew the complaints would have to come at the state level because federal courts have ruled that citizens can’t challenge presidential criteria in that venue.
The two groups began scouring state ballot laws, looking for a place that allowed the rapid contesting of a candidacy. CREW settled on Colorado. It had a clear process for a quick challenge in trial court that would be fast-tracked on appeal to the state Supreme Court.
After a brief trip to Denver checking on potential local lawyers to lead the challenge, Sherman and another CREW attorney, Nikhel Sus, contracted Martha Tierney, a veteran election lawyer who also served as general counsel of the state Democratic Party.
“Hmm, that’s a longshot,” Tierney recalled thinking. She signed up, anyway.
Tierney wasn’t acting as the Democratic Party’s lawyer, but CREW wanted to balance its team with someone from the right. Sherman reached out to Mario Nicolais, a former Republican election lawyer who had left the party over Trump.
Nicolais’ first interaction with Sherman was a direct message about the case on X, the social media network previously known as Twitter. Nicolais thought it could be from a crank.
“Is this for real or is this from somebody just angry at the president?” Nicolais recalled wondering.
Then he saw Sherman was with CREW. — an organization he considered serious. In Nicolais’ office hangs a copy of his first appearance on the front page of The Denver Post, when he beat CREW’s local chapter in a case before the Colorado Supreme Court.
Nicolais was in charge of recruiting plaintiffs. The attorneys wanted Republicans and independents, not only because they were eligible to vote in Colorado’s Republican primary but also to keep the case from being seen as partisan. Anderson, the former state lawmaker, signed on right away.
On Sept. 6, 2023 — one year from the disqualification of the New Mexico county commissioner — Anderson’s was the lead name of the six plaintiffs on the 105-page complaint filed in district court in Denver.
A HISTORIC RULING
Scott Gessler got the call from Trump’s team that day. A former Colorado secretary of state, Gessler was one of the go-to Republican election lawyers in the state.
Trump’s campaign had been fending off scores of Section 3 lawsuits across the country, often from fringe players such as John Castro, a write-in Republican presidential candidate from Texas who had filed numerous ones against Trump.
This case was more serious. The Denver judge who got CREW’s complaint, Sarah Block Wallace, said she was obligated to hold a hearing under Colorado election law.
In the five-day hearing, which took place in late October and early November, two officers who defended the Capitol testified, along with a University of California professor who was an expert in right-wing extremism, two Trump aides and several other witnesses. One was Magliocca, who laid out the history of Section 3.
Trump’s attorneys were pessimistic, expecting Wallace, who had a history of donating to Democrats, to rule against them. Trump’s top spokesman, Jason Miller, addressed reporters outside court, complaining that the plaintiffs had intentionally filed in a liberal jurisdiction in a blue state.
Trump’s lawyers filed a motion asking Wallace step aside because before becoming a judge, she had made a $100 donation to a liberal group that had declared Jan. 6 was an “insurrection.” She declined.
“I will not allow this legal proceeding to turn into a circus,” Wallace said as the hearing began.
Testimony was occasionally interrupted by sirens from a fire station around the corner from Wallace’s courtroom. Security was an ever-present concern. About a half-dozen sheriff’s deputies stood guard throughout the trial, and the plaintiffs had reached out to the FBI and other law enforcement agencies.
To handle much of the examination and argument, Tierney and Nicolais had brought on a new firm of trial lawyers, whose lead partner was former Colorado Solicitor General Eric Olson.
Wallace issued her decision on Nov. 17. She ruled that Trump had “engaged in insurrection” but found that — contrary to Magliocca’s testimony — it wasn’t certain that the authors of the 14th Amendment meant it to apply to the president. Section 3 refers to “elector of President and Vice President,” but not specifically to the office itself.
Wallace was hesitant to become the first judge in history to bar a top presidential contender from the ballot unless the law was crystal clear.
“It was a loss that only a lawyer could love,” Sus recalled.
CREW was just a legal sliver away from victory — it just needed the Colorado Supreme Court to uphold all of Wallace’s ruling besides the technicality of whether the president was covered.
A COURT DIVIDED
The seven justices of the state’s high court — all appointed by Democrats from a pool chosen by a nonpartisan panel — peppered both sides with pointed questions at oral argument three weeks later.
Olson and another partner from his firm, Jason Murray, argued for the plaintiffs. Murray had the rare distinction of having clerked for U.S. Supreme Court Justice Elena Kagan, a member of the court’s liberal bloc, and Justice Neil Gorsuch, a member of its conservative bloc.
Gessler handled the argument for Trump. At the end of the grueling session, he addressed the meaning of insurrection and summed up the unprecedented, improvised nature of the case.
“You’re going to tell me, ‘Mr. Gessler, you’re making it up,’” Gessler told the justices. “I’m going to tell you, well, so did the judge. And at the end of the day, we all are to a certain extent.”
Neither side left feeling certain of victory.
On Dec. 19, the court announced it would issue its ruling that afternoon. Sean Grimsley, one of Olson’s law partners who also had argued the case, was in Washington, at the memorial service for former Supreme Court Justice Sandra Day O’Connor, for whom he had clerked.
The ruling, which was 4-3, came down while Grimsley was on the flight back, frantically checking his phone via the plane’s wi-fi. They had won. Grimsley leapt from his seat and dashed back several rows, where he high-fived a fellow O’Connor clerk who was on the flight.
Eight days later, Maine’s Democratic secretary of state barred Trump from that state’s ballot under Section 3. That decision and Colorado’s are on hold until the U.S. Supreme Court rules.
The reaction to Colorado and Maine’s decisions has been furious, especially from Republicans. Trump has decried them as “election interference” and “anti-democratic.” They have warned that, if they stand, they could open the door to challenges of other politicians under Section 3, including Biden for not sufficiently defending the nation’s southern border.
本文於 修改第 2 次
|
|
《最高法院可能取消管制》評論
|
|
|
推薦1 |
|
|
|
這篇社論點出「法治」理想和「三權分立」原則兩者各自的一些內在衝突；請見本欄上一篇貼文。
其次，大家應該都還記得2008金融風暴的起因：打著「新科自由主義」旗幟的政客在他/她們豢養的「學者」幫著鼓吹下，解除了對金融業務的管制(1)。現在，號稱「保守主義」的美國聯邦最高法院大法官們，又可能取消「所有」管制。至於這些大法官中有性侵犯、有收賄者(敲詐犯？)猶其餘事。
這就印證了我近20年來一直強調的：
「政治是爭奪資源分配權的活動。」
以及
「『意識型態』只是政治鬥爭的旗幟和口號。」
最後，政府官員或通稱「技術官僚」的權限應該如何規範，也的確是一個當代政治學學者和老百姓們難以定奪的問題。
以上這三個問題都需要個別的解決方案。在這之前，我相信法哲學和政治哲學兩個領域的學者們都需要建構新理論，做為處理當前當前技術和政治環境所導致新問題的依據。
附註：
1. 本城市【全球經濟網】區在2008年後有多篇討論「金融風暴」危機的文章，無法一一列舉。請有興趣回顧此議題的朋友自行參考。
本文於 修改第 3 次
|
|
最高法院可能取消管制 –– 《紐約每日新聞》社論
|
|
|
推薦1 |
|
|
|
請參見下一篇《評論》。
A sorry state: The US Supreme Court threatens to eliminate oversight
New York Daily News Editorial Board, New York Daily News, 0120/24
In a case challenging requirements for fishing companies to absorb certain monitoring costs, the U.S. Supreme Court seems poised to go well beyond the regulations at issue and do away completely with a decades-old precedent known as Chevron deference. Very basically, the 1984 doctrine holds that courts should defer to expert federal agency interpretations of laws in cases where the type and focus of regulations are not clearly laid out.
If you’re wondering why we’re writing about what seems like an arcane legal rule, that’s exactly the problem; this doesn’t have the same immediate resonance and clear outcome as, say, overturning Roe or eliminating gun controls. Yet tossing Chevron overboard might have more wide-ranging implications, and not just for one type of policy but for agencies across the federal government and, consequently, the lives of practically all Americans.
Opponents of Chevron will often couch it as a simple matter of reining in a federal administration that will stretch laws well beyond congressional intent and use them to ceaselessly expand its authority, and there will always be examples of this. Without looking too far, federal courts allowed a number of Trump-era immigration restrictions at least in part based on deference to supposed administrative expertise, which was really just the president’s political preferences.
Even without getting into the egregious stuff, there are plenty of smaller-scale regulations that could certainly be argued to exceed statutory authority or otherwise be ill-considered or overly burdensome.
But there’s already a remedy for that in the federal courts; this case itself is a challenge to a specific regulation, and there’s an entire area of law — the Administrative Procedure Act— that is intended to ensure that federal regulations are not made capriciously or without considering their impact or the authority to promulgate them. To use the example of Trump’s anti-immigration push, other policies were struck down precisely because they violated the APA, and Chevron didn’t stop that.
What detractors will rarely mention is that this type of agency deference has become built-in to the government’s ability to regulate increasingly complex industries and economies, not just in the abstract but in ways that matter day to day. If you were rattled by the recent incident with an Alaska Airlines’ Boeing 737 MAX 9 blowing out a door plug mid-flight, think about what happens when the Federal Aviation Administration is restricted to letter-of-the-law enforcement and constantly battling industry lawsuits whittling its power down.
Had food poisoning lately? Get used to much more of it if the extent to which the FDA and USDA can inspect your produce and meat can be dictated by a district court judge with zero technical expertise and aiming to narrowly define the government’s role to strict congressional intent.
And then there the issues and industries around which Congress legislates change constantly, and it can’t be expected to update the laws as rapidly as technology in particular shifts. The Federal Communications Commission, established in 1934, certainly wasn’t set up specifically to oversee internet giants like Meta/Facebook and Alphabet/Google, but it’s imperative that it can adapt to changing circumstances.
With one sweeping motion, the high court could all but take apart the administrative state on which we all rely, and concentrate even more power on itself. Let’s hope we’re wrong.
本文於 修改第 2 次
|
|
美國最高法院在川普候選人資格議題得以解套的5種方法 - Josh Gerstein
|
|
|
推薦1 |
|
|
|
請參看本欄下一篇對此文的評論。
索引：
cabin：將 … 限於 … 之內
conspicuously：明顯的，顯然
emoluments：酬金，酬勞，薪水
off-ramps：解套方案(此處)；高速公路的下車道(相當於「下台階」的「階」)；從困境全身而退的方式
originalism：原意論 (法哲學)
pitfalls：缺點(此處)；陷阱
political question doctrine：(迴避)政治議題原則 (法學)
POTUS：美國總統；President of the United States的縮寫
preemptively：事先(此處)；取得先機，先發制人的
punt：踢皮球(此處)；相當於李宗吾的「鋸箭法」
upside：優點；好處；長處
wriggle out：(試圖以扭捏方式)脫身；頭過身就過
5 ways the Supreme Court may try to defuse its newest Trump bomb
As the justices confront a historic case with enormous political stakes, they might seek a narrow way out.
Josh Gerstein, 01/09/24
After years of dodging Donald Trump-related questions, the Supreme Court is now facing the most consequential one of all: Is he an insurrectionist who is barred by the 14th Amendment from running for president?
Directly answering either “yes” or “no” would spark white-hot political fallout for an already embattled court. But in a case packed with technical and untested legal issues, there are still ways the justices could try to wriggle out of a definitive ruling that either kicks Trump off the ballot or hands him an unqualified legal and public-relations victory.
Chief Justice John Roberts and his colleagues will no doubt be studying these off-ramps as the court prepares for an expedited Feb. 8 argument in Trump’s appeal of a Colorado decision that deemed him disqualified for his actions leading up to the Jan. 6, 2021, attack on the Capitol.
“I certainly could understand if the court would like any of the procedural avenues that would avoid squarely addressing any of the merits. As a matter of first instinct, I think that would be attractive,” said Ned Foley, an election law professor at Ohio State University.
“It may help the court out from that perspective, but it may hurt the country,” he added.
That’s because a decision that seems overly technical or simply postpones addressing the central issue — Trump’s eligibility under the Constitution to hold public office again — could fuel chaos if Trump wins the election and Democrats then try to raise the insurrection argument to block him from retaking office.
“The time to resolve a disqualification issue is before the ballots are cast, not afterwards,” Foley said.
So, just how could the justices try to accomplish this Houdini-like feat?
Here’s POLITICO’s look at the most likely off-ramps for the justices and the potential pros and cons of each:
POTUS isn’t an ‘officer’
The 14th Amendment’s “insurrection clause” lists various positions that cannot be held by anyone who “engaged in insurrection” after taking an oath to “support the Constitution.” Those positions include senators, representatives, and presidential and vice-presidential electors.
Conspicuously, the clause does not explicitly list the presidency itself as a covered position — but it does contain a catch-all provision barring insurrectionists from holding “any office, civil or military, under the United States.”
Trump, of course, denies that he engaged in or promoted any insurrection. But his lawyers also have argued that it’s a moot point because the insurrection clause doesn’t apply to him anyway. His lawyers give two reasons: The presidency is not an “office” covered by the catch-all provision, and the presidential oath that Trump took in 2017 is not the type of oath to “support the Constitution” that the insurrection clause mentions.
If the Supreme Court adopts either theory, it would leave Trump on the ballot without having to decide whether he engaged in insurrection by undermining the 2020 election results and stoking the Jan. 6 riot.
The Upside:
It’s arguably the cleanest of the Supreme Court’s options. A narrow, technical reading of the clause could get support from both Republican and Democratic appointees, or even potentially unanimous backing. And it would likely be a complete resolution to the 14th Amendment issue because it would preclude efforts to knock Trump off the ballot in other states, and it would shut down post-election challenges to Trump’s eligibility to serve if he won in November.
The Pitfalls:
A ruling that turns on the meaning of “office” or “officer” would be hyper-technical and hard for average voters to understand. Moreover, scholarly consensus seems to favor the president being covered by the amendment, as does common sense. And a decision declaring presidents not to be federal officers could have unintended legal consequences, even for pending civil lawsuits against Trump.
“Such a broad holding could have significant, unwarranted effects on longstanding practices involving several other provisions of the Constitution that use such a term,” said Georgetown University law professor Marty Lederman, who served as the No. 2 in the Justice Department’s Office of Legal Counsel earlier in the Biden administration. The clause banning officials taking so-called emoluments from foreign governments, the prohibition on religious tests for federal offices and the provision allowing the Senate to disqualify impeached officers from future posts all use similar language, he noted.
Lederman said those complications don’t mean the justices shouldn’t go the president’s-not-an-officer route, but they should disclaim any impact on other parts of the law. “They would probably want to cabin it to this clause,” he said.
Maybe there ought to be a law, but there isn’t
Another major ambiguity in the insurrection clause is that the text is silent about who decides whether a person is an insurrectionist. (It does say Congress can restore an individual’s eligibility by a two-thirds vote of both chambers, but not who decides someone is ineligible in the first place.) In legal terms, the question is whether the disqualification provision is “self-executing” or whether Congress has to pass a law for it to apply.
Congress did pass such a law in 1870, but it was largely superseded by another law in 1872 and taken off the books in 1948. Trump’s lawyers argue that, without that kind of legislative measure, no one at any level of government is empowered to use the insurrection provision to kick him off ballots or deny him office.
“If the court is to use this not-self-executing issue as an off-ramp, it seems to me they almost necessarily have to leave it open for Congress to deal with later on,” Foley said. “It matters how they do it.”
The upside:
A ruling along these lines might close the door on post-election challenges to Trump’s eligibility, and it would leave Congress space to clarify the issue in the future.
The pitfalls:
Punting the question to Congress is more complicated than it appears at first glance. Even if the insurrection clause isn’t self-executing, it’s unclear whether Congress is truly the only entity empowered to enforce it. Do states, for example, have authority to pass their own laws to enforce the provision? What if their court systems find the anti-insurrection language enforceable under existing state laws on ballot qualifications? After all, that’s essentially what the Colorado Supreme Court concluded in the Trump case.
And if Congress is the only body with authority to enforce the insurrection bar, does that mean states can’t enforce it even for state lawmakers or local government positions?
This isn’t fair to Trump
While there are several variations of this argument, the basic thrust is that the trial that led the Colorado Supreme Court to rule that Trump should be kicked off the ballot there didn’t do enough to safeguard Trump’s rights and allow him to contest the allegations that he led an insurrection.
An aggressive version of this claim asserts that the only way to knock Trump out of the election would be for him to be convicted of the specific federal crime of leading a “rebellion or insurrection.” While Trump is facing four federal felony counts related to his efforts to overturn the 2020 election results, none is that particular charge, even though the House Jan. 6 committee urged the Justice Department to charge him with it. (And, of course, he hasn’t been convicted.)
A more modest iteration of the argument was put forward by one of the Colorado Supreme Court’s dissenting justices, who derided as “substandard” the procedures used for Trump’s trial in Colorado — which was a civil suit proceeding under the state’s election law, not a criminal trial.
“Even if we are convinced that a candidate committed horrible acts in the past — dare I say, engaged in insurrection — there must be procedural due process before we can declare that individual disqualified from holding public office,” Justice Carlos Samour wrote. “In my view, what transpired in this litigation fell woefully short of what due process demands.”
Perhaps the U.S. Supreme Court will agree and hold that Trump has not been proven in court to meet the threshold of engaging in insurrection.
The upside:
Even some Americans hostile to Trump may be sympathetic to the idea that he’s entitled to a criminal trial or some similar process before being blocked from the ballot.
The pitfalls:
It seems clear from history that the drafters and ratifiers of the 14th Amendment — which was adopted in the wake of the Civil War — were trying to block all rebels from federal office, even those who hadn’t been convicted of crimes or had been pardoned.
“I don’t think it has to be a criminal trial. I think the history of [the clause] is abundantly clear on that,” Foley said.
With so many of the Supreme Court’s current justices touting originalism as their judicial philosophy, latching onto this argument could be viewed as a profoundly anti-originalist approach.
It’s too soon to declare Trump ineligible
The justices might conclude that it’s simply too early to weigh in on Trump’s eligibility. Perhaps the 14th Amendment’s bar kicks in only during the general election that picks the office-holder, not during primaries that determine party nominations. Or perhaps the amendment merely bars insurrectionists from taking office and cannot actually be used to prevent them from running for office.
The Colorado Republican Party has put forward a version of this argument by contending that the state is infringing on the GOP’s First Amendment rights by trying to dictate which names can and can’t appear on the primary ballot.
The upside:
A ruling along these lines would adhere to Chief Justice John Roberts’ oft-stated desire to have the court narrowly interpret the issues before it and not reach out to resolve future disputes until it must. It would take the spotlight off the court — at least for now.
The pitfalls:
It would be an obvious punt, since all the issues seem likely to return before or after the general election, with Trump dominating in the polls and widely expected to win the nomination. It would create a state-by-state patchwork by allowing some states, like Colorado and Maine, to kick Trump off their primary ballots while other states keep him on.
This off-ramp might also be a particular problem for Justice Neil Gorsuch, who as an appeals court judge in 2012 ruled that Colorado could preemptively knock a fringe presidential candidate off the ballot because he wasn’t born a U.S. citizen, as a different part of the Constitution requires.
The case is too hot to handle
When thorny, politically charged issues arise in court, judges sometimes simply declare the cases too political for the legal system to resolve — effectively sending them back to other branches of government.
The justices could invoke this principle, known as the “political question doctrine,” to bow out of the issue of Trump’s disqualification, but doing so would likely leave the Colorado Supreme Court decision in place.
The upside:
It would get the justices entirely out of the heated political fight, and it would avoid contributing to the view that the Supreme Court is hopelessly politically polarized.
The pitfalls:
The doctrine has been in some decline in recent years, with critics arguing that it simply allows judges to dodge tough decisions in controversial cases.
Just over two decades ago, the court’s majority chose to decide the most momentous election-related case in its history, Bush v. Gore, despite dissenting justices warning that the dispute was better left to the other branches of government and the states.
The political question option also amplifies the potential for chaotic challenges to the counting of electoral votes by Congress early next year and increases the possibility of the election being ultimately decided in the House of Representatives.
本文於 修改第 2 次
|
|
|
本城市首頁
看回應文章
等級：8
回應給：
