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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12301/27/2024貼文),並不是因為我厭惡他;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

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Jury selection in Trump hush money trial faces pivotal stretch as former president returns to court

 04/18/24

WASHINGTON (AP) — Jury selection in the hush money trial of Donald Trump enters a pivotal and potentially final stretch Thursday as lawyers look to round out the panel of New Yorkers that will decide the first-ever criminal case against a former president.

Seven jurors have been picked so far, including an oncology nurse, a software engineer, an information technology professional, a sales professional, an English teacher and two lawyers. Eleven more people must still be sworn in, with the judge saying he anticipated opening statements in the landmark case to be given as early as next week.

The seating of the Manhattan jury — whenever it comes — will be a seminal moment in the case, setting the stage for a trial that will place the former president's legal jeopardy at the heart of the campaign against Democrat Joe Biden and feature potentially unflattering testimony about Trump's private life in the years before he became president.

The process of picking a jury is a critical phase of any criminal trial but especially so when the defendant is a former president and the presumptive Republican nominee. Prospective jurors have been grilled on their social media posts, personal lives and political views as the lawyers and judge search for biases that would prevent them from being impartial. Inside the court, there's broad acknowledgment of the futility in trying to find jurors without knowledge of Trump, with a prosecutor this week saying that lawyers were not looking for people who had been “living under a rock for the past eight years.”

To that end, at least some of the jurors selected acknowledged having their own opinions about Trump.

“I find him fascinating and mysterious," one juror selected for the case, an IT professional, said under questioning. “He walks into a room and he sets people off, one way or the other. I find that really interesting. ‘Really? This one guy could do all of this? Wow.’ That’s what I think.”

The process has moved swifter than expected, prompting Trump when leaving the courthouse on Tuesday to complain to reporters that the judge, Juan Merchan, was “rushing” the trial.

The case centers on a $130,000 payment that Trump's lawyer and personal fixer, Michael Cohen, made shortly before the 2016 election to porn actor Stormy Daniels to prevent her claims of a sexual encounter with Trump from becoming public in the race's final days.

Prosecutors say Trump obscured the true nature of the payments in internal records when his company reimbursed Cohen, who pleaded guilty to federal charges in 2018 and is expected to be a star witness for the prosecution.

Trump has denied having a sexual encounter with Daniels, and his lawyers argue the payments to Cohen were legitimate legal expenses.

Trump faces 34 felony counts of falsifying business records. He could face up to four years in prison if convicted, though it's not clear that the judge would opt to put him behind bars. Trump would almost certainly appeal any conviction.

The hush money case is one of four criminal prosecutions Trump is confronting as he vies to reclaim the White House, but it's possible that it will be the sole case to reach trial before November's presidential election. Appeals and other legal wrangling have caused delays in cases charging Trump with plotting to overturn the 2020 election results and with illegally hoarding classified documents.


Tucker reported from Washington.

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聯邦最高法院就川普「候選人資格案」做出裁定-Kate Murphy
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Supreme Court rules Trump cannot be kicked off Colorado primary ballot

The unanimous decision comes just a day before voters head to the polls for Super Tuesday.

, 03/05/24

Former President Donald Trump was handed a major victory on Monday when the U.S. Supreme Court ruled that he cannot be excluded from Colorado's primary election ballot over his actions surrounding the Jan. 6, 2021, attack on the U.S. Capitol.

"BIG WIN FOR AMERICA!!!" Trump wrote on Truth Social, his social media platform.

The former president had appealed the Colorado Supreme Court's decision to disqualify him under the so-called insurrection clause of the U.S. Constitution.

The unanimous decision came just one day before Colorado voters head to the polls on Super Tuesday.

Here’s what to know about the ruling.


What the ruling said

"Because the Constitution makes Congress, rather than the States, responsible for enforcing Section 3 against federal officeholders and candidates, we reverse," the justices wrote.


It’s the first time the Supreme Court has weighed in on the insurrection clause, as the post-Civil War era provision was enacted in 1868 to prevent former Confederates from becoming a member of Congress or being elected to other offices.


It’s also the biggest case related to the presidential election that the high court has weighed in on since the 2000 election in Bush v. Gore.


What the liberal justices said

While the court's three liberal justices Elena Kagan
Sonia Sotomayor and Ketanji Brown Jackson concurred with the judgment, they disagreed with the conservative majority's rationale, saying it was unnecessary and went to far:

"The majority announces that a disqualification for insurrection can occur only when Congress enacts a particular kind of legislation pursuant to Section 5 of the Fourteenth Amendment," Kagan, Sotomayor and Jackson wrote. "In doing so, the majority shuts the door on other potential means of federal enforcement. We cannot join an opinion that decides momentous and difficult issues unnecessarily, and we therefore concur only in the judgment."


What the ruling means

The highly anticipated ruling provides clarity as to who will appear on the ballot — not just for voters in Colorado on the eve they head to the polls on Super Tuesday, but also in Illinois and Maine, where voters had also petitioned for Trump to be disqualified from the ballot in those states, also citing the insurrection clause.


How we got here

The case, known as Trump v. Anderson, centers on a so-called insurrection clause of the U.S. Constitution, formally known as Section 3 of the 14th Amendment. It prohibits officials who have previously sworn an oath to uphold the Constitution from holding government office if they engage in insurrection.


Colorado voters argued that Trump did engage in insurrection on Jan. 6 and therefore should be disqualified from holding office under Section 3.


Trump, however, has not been explicitly charged with “insurrection” in any of the four criminal cases in which he has been indicted.


Read the full Supreme Court ruling
(請至原網頁查看裁定)

Download this PDF


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川普免責權之聯邦大法官「紹興師爺」筆法 -- Areeba Shah
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20

Legal expert identifies "three very important clues" on how Supreme Court may rule on Trump immunity

03/02/24

The U.S. Supreme Court is set to hear oral arguments in April in a significant case determining whether former President Donald Trump is immune from federal criminal prosecution in the Jan. 6, 2021, election interference case against him.

The court agreed on Wednesday to consider the immunity claim, marking a short-term victory for the former president, who has attempted to delay the criminal case charging him with plotting to subvert the 2020 presidential election.

The trial, which was initially scheduled to begin in early March in Washington D.C., could be delayed until late summer or fall — or even after Election Day.

The Supreme Court indicated in a one-page order that during the week of April 22, it will address a legal question that has not been previously tested: "Whether and if so to what extent does a former President enjoy presidential immunity from criminal prosecution for conduct alleged to involve official acts during his tenure in office."

The question presented was “clearly heavily negotiated” among the justices, Norman Eisen, a senior fellow at the Brookings Institution and CNN legal analyst, told Salon. It's not the question that either of the parties presented.

“My reading is that there are three very important clues in the question presented that show that the justices are as skeptical about, frankly, the astonishing idea that a president can commit political assassinations as part of his official acts and escape accountability unless he's impeached and convicted, which has never happened to a president in American history,” Eisen said.

The court adopted the circuit court's “narrowing principle” of only ruling on former presidents, simplifying the case's assessment against Trump because they don't have to reach the “harder question” of a sitting president with the “additional constitutional and other protections that a current president enjoys.”

They ask “whether” and “to what extent” the immunity applies to official acts, Eisen explained. When you have a situation like that, where the overwhelming balance of the acts is “clearly political, I read that to signal of if you have some extent of officiallness, but it doesn't predominate, that's not going to be enough," he said.

The third clue is the keyword “allegedly” as it points to the allegations in the case which are contained within the indictment, Eisen pointed out. This suggests that the justices can deliberate on this matter solely based on legal documentation, without the need for an evidentiary hearing.

“Those are just clues,” he added. “We may be misreading the clues or learn something different later, but those are the clues embedded in the question presented.”

The court would need to take “the narrowest possible approach” to this question, Bennett Gershman, a former New York prosecutor and law professor at Pace University, told Salon. A “broad approach” would require the court to provide convincing reasons for cases with “terrifying implications” like immunity for ordering the assassination of a White House official about to expose Trump taking bribes for pardons, ordering the kidnapping of a senator about to vote on legislation Trump opposes and “many more of these horrendous hypotheticals.”

Since this is the first time a former president is facing criminal charges, this is a novel matter for the Supreme Court to consider. The final decision could establish guidelines not only for Trump but also for the conduct of any future president.

Trump and his attorneys have largely argued that his actions to overturn the 2020 election results were part of his presidential duties so subjecting him to a criminal trial would create concerns for future presidents about facing prosecution for their official actions. This could potentially limit their ability to issue decisions in the public's interest, his team argued.

Lower courts have dismissed Trump's assertion of immunity in this case. U.S. District Court Judge Tanya Chutkan, the judge in the federal election interference case, ruled that former presidents can face prosecution for "any criminal acts undertaken while in office."

The U.S. Court of Appeals for the District of Columbia Circuit ruled along similar lines last month, delivering a strong and unanimous opinion asserting that “Former President Trump has become citizen Trump, with all of the defenses of any other criminal defendant.”

This aligns with special counsel Jack Smith’s stance, whose office argues that there is no legal foundation for presidential immunity since the actions Trump is accused of are not considered part of a president's official responsibilities.

Trump heavily relies on a 1982 ruling, Nixon v. Fitzgerald, which dealt with presidential immunity in a civil lawsuit involving Nixon, NBC News reported. In that case, the court ruled that presidents are immune when their conduct falls within the "outer perimeter" of their official duties. However, Smith contends that this ruling pertained to a civil case, not a criminal one, potentially limiting how it's applied.

The Court of Appeals “refused” to extend Fitzgerald to the actions surrounding January 6, arguing both that there is no absolute immunity and that the January 6 actions were not official acts, David Schultz, professor of political science at Hamline University, told Salon.


“I would be surprised if the Supreme Court actually reversed on this, but I would not be surprised if it throws the question back to a lower court,” Schultz said. “It may continue to say that there is no absolute immunity for nonofficial acts, but that whether January 6 constitutes an official act is a matter for a jury to decide.”


Such a decision might require a separate lower court decision or it could be incorporated into the criminal case and heard by the jury, he added. The latter might not cause too much delay and a trial could still happen late summer or early fall.


While the Nixon v. Fitzgerald case will be considered, criminal cases are “vastly different” and are often seen as involving considerations concerning public safety and the rule of law that civil cases concerning "private grievances" do not address, Gershman explained. Most of the protections in the Bill of Rights involve criminal cases, not civil cases.


“If you grant complete insulation from criminal accountability … and that goes into the mix with all of these autocratic and even dictatorial aspirations that Trump and his allies are articulating, it has the potential to transform the rule of law in America and how it would act,” Eisen said. “So, it fits into a context of a much more dangerous pattern of threatened behavior. The Supreme Court must slam the door on that.”


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川普逃避詐欺罪處分的花招 -- T. G. Moukawsher
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請注意倒數第二三兩段尤其是倒數第二段所闡述的「法律兩難情勢下的人本立場」(請使用原文中的超連接)。此處可參考「法學基礎論的人本立場」。


Trump has one trick up his sleeve to dodge crushing NY fraud judgment

How Donald Trump runs rings around the robed ones (川普和法官們玩躲貓貓)

, 02/17/24

Donald Trump’s whole life has prepared him, not for the presidency, but for this moment—beset by lawsuits and criminal charges in court. Some calculations show he filed over 3,500 lawsuits over the years. He knows the vulnerabilities of our legal system and is having no trouble exploiting them.

He hasn’t needed much help in Florida. He appears to have a willing ally in Judge Aileen Cannon in the secret documents case who, so far, has either ruled in Trump’s favor or, in ruling against him, has left the door open to giving Trump what he wants later. What Trump wants is delay. Judge Cannon is likely to give it to him.


In Washington, Trump claims that he is so immune from criminal responsibility that he could have used Seal Team Six to assassinate his political opponents without consequences. Trump has bought himself time with this issue, including asking for more time to petition the Supreme Court. If he fails on this issue, you can expect a series of other claims—each one holding things up. 

In Georgia, Trump’s seedy collaboration with the National Enquirer has combined with his connoisseurship of the courtroom to deliver us a Jerry Springer Show moment with Trump and his allies examining the love life of District Attorney Fani Willis on live television. Once again, Trump has come out a winner, smothering the main event and making Willis, Judge Scott McAfee, and the judicial system look ridiculous. 

And most ridiculous of all, the first criminal case against Trump going to trial is the case about his payoff to a porn star. Manhattan District Attorney, Alvin Bragg claims Trump falsified business records and disguised a campaign contribution by paying hush money about an affair. More silliness, more salaciousness. More distraction from what matters: the allegation that Donald Trump, president of the United States, attempted by fraud, coercion, and a violent attack on the United States Capitol to overthrow the democratically elected government of our country.

And if you think Trump at least faced the music in his New York civil fraud case with Justice Arthur Engoron’s ruling ordering Trump to pay $355 million in penalties, think again. The case is far from over. Trump will stall the case, diddle the docket, drag out the appeal, appeal from the appeals court, and, if he becomes cornered resort to another trick he has considerable experience with—he will declare bankruptcy

It doesn’t have to be this way, but deeply engrained formalism in court plays right into Trump’s hands.  When in doubt, judges delay. When there is a claim, however frivolous and intentionally dilatory, it must receive the same slow service as every other claim at the courthouse window.  While the idea of due process is the constitutional promise of a meaningful hearing at a meaningful time, too many judges prefer the appearance of fairness that long delays promise but don’t deliver. Too many times, justice delayed is justice denied, but judges in our contemporary system simply aren’t set up to do it any other way, and Trump and other courthouse cognoscenti know how to exploit it. 

Instead of exalting form over substance, courts should recognize the humanism of legal dilemmas and focus on it. That is, every case in court has a human heart. A value against lying, cheating, stealing, violence or what have you is in play and the fate of real people are on the line. When the parties’ claims and not the process is the focus, courts can push aside obstacles and achieve substantial justice. Parties can be ordered to make all their legal challenges to a case at the same time to keep them from dribbling out and causing long delays. Judge McAfee should have ruled on whether a hypothetical relationship between prosecutors would have anything to do with Donald Trump before allowing a circus about it. The upper courts should see Donald Trump coming and rule fairly and quickly on his claims in New York. The courts should try Trump’s attempted takedown of democracy before they put on a show about a payoff to a porn star. 

American courts are in the spotlight. Trump’s opponents can be grateful that he may face justice someday, but not one of the cases against him will be over before the election.

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川普因謊報財產被罰款 – M. R. Sisak/J. Offenhartz/J. Pelts
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Donald Trump fraud verdict: $364 million penalty in New York civil case

, 02/17/24

NEW YORK (AP) — A New York judge ruled Friday against Donald Trump, imposing a $364 million penalty over what the judge ruled was a yearslong scheme to dupe banks and others with financial statements that inflated the former president’s wealth.

Trump also was barred from serving as an officer or director of any New York corporation for three years.

However, the judge backed away from an earlier ruling that would have dissolved the former president’s companies.

Trump's lawyers vowed to appeal. Attorney Alina Habba called the verdict “manifest injustice" and “the culmination of a multi-year, politically fueled witch hunt." She and Trump lawyer Christopher Kise said the verdict, if upheld, would damage the business environment.

Judge Arthur Engoron issued his decision after a 2½-month trial that saw the Republican presidential front-runner bristling under oath that he was the victim of a rigged legal system.

Engoron concluded that Trump and his co-defendants “failed to accept responsibility” for their actions and that expert witnesses who testified for the defense “simply denied reality.”

The judge called the civil fraud at the heart of the trial a “venial sin, not a mortal sin.”

“They did not rob a bank at gunpoint. Donald Trump is not Bernard Madoff. Yet, defendants are incapable of admitting the error of their ways,” wrote Engoron, a Democrat. He said their “complete lack of contrition and remorse borders on pathological.”

The stiff penalty was a victory for New York Attorney General Letitia James, a Democrat, who sued Trump over what she said was not just harmless bragging but years of deceptive practices as he built the multinational collection of skyscrapers, golf courses and other properties that catapulted him to wealth, fame and the White House.


Trump’s lawyers had said even before the verdict that they would appeal.


James sued Trump in 2022 under a state law that authorizes her to investigate persistent fraud in business dealings.


The suit accused Trump and his co-defendants of routinely puffing up his financial statements to create an illusion his properties were more valuable than they really were. State lawyers said Trump exaggerated his wealth by as much as $3.6 billion one year.


By making himself seem richer, Trump qualified for better loan terms, saved on interest and was able to complete projects he might otherwise not have finished, state lawyers said.


Even before the trial began, Engoron ruled that James had proven Trump’s financial statements were fraudulent. The judge ordered some of Trump’s companies removed from his control and dissolved. An appeals court put that decision on hold.


In that earlier ruling, the judge found that, among other tricks, Trump’s financial statements had wrongly claimed his Trump Tower penthouse was nearly three times its actual size and overvalued his Mar-a-Lago estate in Palm Beach, Florida, based on the idea that the property could be developed for residential use, even though he had surrendered rights to develop it for any uses but a club.


Trump, one of 40 witnesses to testify at the trial, said his financial statements actually understated his net worth and that banks did their own research and were happy with his business.


“There was no victim. There was no anything,” Trump testified in November.


During the trial, Trump called the judge “extremely hostile” and the attorney general “a political hack.” In a six-minute diatribe during closing arguments in January, Trump proclaimed “I am an innocent man” and called the case a “fraud on me.”


Trump and his lawyers have said the outside accountants that helped prepare the statements should’ve flagged any discrepancies and that the documents came with disclaimers that shielded him from liability. They also argued that some of the allegations were barred by the statute of limitations.


The suit is one of many legal headaches for Trump as he campaigns for a return to the White House. He has been indicted four times in the last year — accused in Georgia and Washington, D.C., of plotting to overturn his 2020 election loss to Democrat Joe Biden, in Florida of hoarding classified documents, and in Manhattan of falsifying business records related to hush money paid to porn actor Stormy Daniels on his behalf.


On Thursday, a judge confirmed Trump’s hush-money trial will start on March 25 and a judge in Atlanta heard arguments on whether to remove Fulton County District Attorney Fani Willis from his Georgia election interference case because she had a personal relationship with a special prosecutor she hired.


Those criminal accusations haven’t appeared to undermine his march toward the Republican presidential nomination, but civil litigation has threatened him financially.


On Jan. 26, a jury ordered Trump to pay $83.3 million to writer E. Jean Carroll for defaming her after she accused him in 2019 of sexually assaulting her in a Manhattan department store in the 1990s. That’s on top of the $5 million a jury awarded Carroll in a related trial last year.


In 2022, the Trump Organization was convicted of tax fraud and fined $1.6 million in an unrelated criminal case for helping executives dodge taxes on extravagant perks such as Manhattan apartments and luxury cars.


James had asked the judge to impose a penalty of at least $370 million.


Engoron decided the case because neither side sought a jury and state law doesn’t allow for juries for this type of lawsuit.


Because it was civil, not criminal in nature, the case did not carry the potential of prison time.


James, who campaigned for office as a Trump critic and watchdog, started scrutinizing his business practices in March 2019 after his former personal lawyer Michael Cohen testified to Congress that Trump exaggerated his wealth on financial statements provided to Deutsche Bank while trying to obtain financing to buy the NFL’s Buffalo Bills.


James’ office previously sued Trump for misusing his own charitable foundation to further his political and business interests. Trump was ordered to pay $2 million to an array of charities as a fine and the charity, the Trump Foundation, was shut down.


Trump incorporated the Trump Organization in New York in 1981. He still owns it, but he put his assets into a revocable trust and gave up his positions as the company’s director, president and chairman when he became president, leaving management of the company to sons Eric and Donald Trump Jr.


Trump did not return to a stated leadership position upon leaving the White House in 2021, but his sons testified he’s been involved in some decision making.


Engoron had already appointed a monitor, retired federal judge Barbara Jones, to keep an eye on the company.


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科州最高法院取消川普該州總統初選候選人資格 - David Knowles
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這是個大新聞。不論美國的司法系統和民主制度有多少缺失和問題;這個決定是「法權」的典範。「法權」一詞亦可譯為「依法意治理」,通譯為「法治」。

最後的判定當然在美國聯邦最高法院九位大法官的腦中。拭目以待這個懸疑劇(本文原刊登於12/20/23)


Trump legal news brief: In landmark ruling, Colorado Supreme Court removes Trump from ballot

Yahoo News' succinct daily update on the criminal and civil cases against the 45th president of the United States.

David Knowles·Senior Editor12/20/23

Setting up an appeal before the highest court in the land, the Colorado Supreme Court issues a landmark ruling to remove former President Donald Trump’s name from state ballots based on its reading of Section 3 of the 14th Amendment of the U.S. Constitution. (下略)

Jan. 6 election interference

Colorado Supreme Court blocks Trump from appearing on ballot

Key playersColorado Supreme CourtCitizens for Responsibility and Ethics in Washington (CREW)

*  In a 4-3 ruling Tuesday, the court voted to remove Trump from presidential primary ballots, the Associated Press reported.
*  The decision was based on its reading of Section 3 of the 14th Amendment to the U.S. Constitution, which bars those who have “engaged in insurrection” from holding office.
*  “A majority of the court holds that Trump is disqualified from holding the office of president under Section 3 of the 14th Amendment,” the ruling states.
*  But the court also stayed its ruling until Jan. 4, giving Trump’s lawyers time to appeal the decision to the U.S. Supreme court in the case brought by CREW on behalf of Colorado voters.
*  A lower court judge had ruled that while Trump had “engaged in an insurrection” stemming from his actions to overturn his 2020 presidential election loss to Joe Biden, it was not clear that Section 3 applied to the presidency.
*  The Colorado Supreme court ruled that it did.
*  Other state courts are also hearing 14th Amendment challenges to Trump’s inclusion on ballots.

Why it matters: The U.S. Supreme Court’s ruling will ultimately settle the question of whether Trump is entitled to seek the presidency again following his actions leading up to the Jan. 6, 2021, riot at the U.S. Capitol building.

(下略)

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川普暫時放棄向聯邦最高法院上訴「免責權」裁定-K. Cheney/J. Gerstein
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Trump permits Jan. 6-related lawsuits against him to advance — for now

, 02/16/24

Donald Trump is passing up the chance to add a fourth case to a trio of Trump-related appeals already stacked up at the Supreme Court.

Trump elected not to ask the justices to reverse a federal appeals court ruling issued in December rejecting his claim that presidents have absolute immunity from being sued for actions taken while they are in office.

That means at least three lawsuits brought against him in the aftermath of the Jan. 6 attack on the Capitol can advance to the next phase — a period of limited evidence-gathering related to Trump’s activities on Jan. 6, 2021 and whether they were official or political in nature.

The lawsuits — brought by members of Congress and police officers scarred by the attack — have been pending since 2021 but delayed amid Trump’s bid for the courts to declare him immune from lawsuits related to his actions as president.

For now, that means a Washington, D.C., appeals court ruling that found Trump could be sued for his role in stoking the violence on Jan. 6 will stand. The unanimous ruling of the three-judge panel, which included a Trump-nominated judge, concluded that Trump’s remarks to supporters on Jan. 6 appeared to be delivered in his capacity as a candidate for reelection — not in his official capacity as president.

But the decision from the D.C. Circuit Court of Appeals did not totally slam the door on Trump attempting to prove that the event was official.

Under an agreement with the plaintiffs in those cases, Trump had a Thursday deadline to halt the effect of the appeals court decision by filing an appeal with the Supreme Court. None was filed as of Thursday evening, and his aides indicated none was expected.

But Trump’s allies say he is leaving the door open to reviving a challenge to the ruling later in the process. He could try another appeal after the next round of fact-finding is complete, and the trial judge issues another ruling on whether the cases can proceed.

“President Trump will continue to fight for Presidential Immunity across the spectrum,” said Steven Cheung, a spokesperson for Trump’s 2024 presidential campaign.

Even without the civil immunity fight, the Supreme Court is already dealing with a trio of cases that could have a major impact on Trump and his political viability.

Last week, the justices spent more than two hours hearing arguments about whether to uphold or overturn a Colorado Supreme Court decision that Trump is ineligible to appear on the ballot because his actions related to Jan. 6 rendered him an insurrectionist.

The U.S. Supreme Court has also agreed to hear a case that from another Jan. 6 criminal defendant that has the potential to knock out two of four charges Trump faces in the election-subversion indictment prosecutors obtained against him last year.

And the justices could discuss at a conference Friday whether to keep that trial on hold while they consider Trump’s claim that former presidents enjoy broad immunity from criminal prosecution over matters even tangentially related to their official duties.

Though Trump’s bid for criminal immunity carries more urgent and immediate stakes, the fight over whether he can face financial penalties for the same events has been pending significantly longer.

Nearly two years ago, U.S. District Court Judge Amit Mehta rejected Trump’s bid to wield presidential immunity to dismiss several of the suits stemming from Jan. 6. Mehta said Trump’s speech at the Ellipse might have ordinarily been protected by the First Amendment.

However, the judge said indications that Trump knew about weapons in the crowd or other imminent threats of violence meant it was possible Trump’s actions and remarks taken as a whole might not be protected political speech.

“From these alleged facts, it is at least plausible to infer that, when he called on rally-goers to march to the Capitol, the President did so with the goal of disrupting lawmakers’ efforts to certify the Electoral College votes,” Mehta wrote, an appointee of President Barack Obama. “The Oath Keepers, the Proud Boys, and others who forced their way into the Capitol building plainly shared in that unlawful goal.”

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川普「封口費」刑事案將於03/25開審-G. Kates/K. Kaufman
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Trump's first criminal trial set for March 25, judge in "hush money" case says

, 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.

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「川普候選人資格」小評
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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)。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),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」)G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」行為的嘴』」。


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「總統職位」是否屬於「官員身份」? -- Charlie Savage
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A Legal Outsider, an Offbeat Theory and the Fate of the 2024 Election

, 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 differentofficer” 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


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