For those of you who have developed a habit of following my writing here on Red State, you understand that I mostly cover legal developments on a variety of fronts which usually involve some connection to the Trump Administration.
The Administration is facing several legal issues that are likely to “pop” over the next couple weeks — and the legal landscape could shift significantly with regard to the Administration depending on the outcome on some of these issues. This article is just a “preview” of what is coming over the next couple weeks, and I expect to write stories about each as they happen where possible.
First, based on the decision of the DC Court of Appeals, and the 21 day period under the Rules of Appellate Procedure before a “Mandate” issues from the Appeals Court to the District Court, Judge Sullivan has until July 14, 2020 to dismiss the case against Gen. Flynn himself. If Judge Sullivan does not act on or before July 14, then the case will be automatically dismissed by the District Court upon the Order of the Appeals Court. At any time during that 21 day period it could be announced that there has been a vote taken on a request for the case to be reheard en banc — which means by the whole court. As I understand the process, a request for such a vote to be taken, and the outcome of such a vote, would be announced at the same time. In other words, we won’t even know that such a vote was called for until we are told what the outcome of the vote might be. So the fact that we haven’t not heard about such a vote being called does not mean that no such request has been made. We have another seven days to wait.
The Appellate Rules require that a majority of the full time members of the Court — not Senior Status judges — must vote in favor of rehearing a case en banc for such a hearing to take place. There are currently seven judges on the Court appointed by Democrat Presidents, and four appointed by GOP Presidents. With 11 judges, it would take a vote from six of them to rehear the matter. But one of the Democrat appointed Judges is Chief Judge Sri Srinivasan, who wrote the opinion in the Fokker Services case that was relied upon by Judge Rao in ruling that the DOJ motion to dismiss Gen. Flynn’s case must be granted. In what was likely a tactical error, Judge Wilkins who dissented in the decision on Gen. Flynn’s case called the Fokker Servicescase “dicta” with regard to the key passages that Judge Rao relied upon. It must have stung Judge Srinivasan for another member of the Circuit to make such a belittling comment about Judge Srinivasan’s legal analysis as set forth Fokker Services. Since it would be Judge Srinivasan’s decision in Fokker Services that would be undermined by a decision reversing the panel, its quite likely that Judge Srinivasan is a vote against en banc review. In addition, the internal dynamics of a relatively small appeals court are such that other Democrat appointed judges might not want to put themselves in the position of potentially having to side against Judge Srinivasan by rehearing the Gen. Flynn case, when the ultimate outcome of the case is simply not that important “in the grand scheme of things.” If just one Democrat appointed judge feels that way, then there are not 6 votes to rehear the case en banc.
A second issue that will come up for the Administration as early as this week are the two cases pending before the Supreme Court over the issuance of subpoenas for Pres. Trump’s tax returns and other financial records — one subpoena from the House Judiciary Committee, and one from Manhattan District Attorney Cyrus Vance. The House Judiciary Committee claims they need access to Pres. Trump’s personal tax returns to inform them on legislation under consideration, and for oversight purposes. I expect the Court to side with the Administration simply on the basis that there is no way to distinguish between the authority claimed by the House to issue one subpoena and the authority to issue 100 subpoenas. The latter would clearly be abusive and would hamper the ability of a co-equal branch of government to carry out its constitutional functions. Since the issue cannot be resolved going forward on a “case-by-case” basis, I expect the Court to simply say there is no “standard” by which the any court could resolve a dispute, and as a result “separation of powers” makes this a non-justiciable matter that must be left to the electorate to resolve.
With regard to the Manhattan DA’s subpoena, my guess is that the Court will again rule for the Administration on the basis that whatever investigation the Manhattan DA, as a county prosecutor, wants to conduct into Trump’s financial affairs runs afoul of Supremacy Clause and other federalism issues. Again, the tension is between a local issue and a federal issue — the obligation of POTUS to carry out his constitutional duties without distraction. The ruling would be about the “Office of the Presidency” as a constitutional issue, and once Donald Trump is a private citizen again the Manhattan DA can treat him as any other private citizen. But while “No President Is Above The Law”, the “Office of the Presidency” shields Presidents from being investigated by state or local officials. This was a question the Court in Clinton v. Jones specifically declined to take up, so Clinton v. Jones does not necessarily control the outcome. Clinton was a unanimous decision where the Court allowed civil litigation to proceed in the discovery phase for a case related to conduct prior to Clinton becoming President. But a key to the Clinton case was that he asserted “immunity” and challenged the authority of federal courts on “separation of powers” grounds to require POTUS to submit to the jurisdiction of an Article III Court for purposes of submitting to orders to provide discovery. I think “behind the scenes” there is going to be sentiment that Trump either wins in 2020 or he doesn’t. If he doesn’t then the Manhattan DA can proceed however it wants. If he wins, the Constitution can’t countenance a local DA gathering records on a sitting President as part of a criminal investigation — the investigation will need to wait.
A third issue that might come up — or might now be delayed some — is what DOJ does if Roger Stone seeks bail pending appeal. One of Stone’s arguments on appeal is going to be that he was denied a fair trail due to juror misconduct. This motion was litigated after the “trial team” from the Special Counsel’s Office had withdrawn from the case over the disputed sentencing statement. Nevertheless. the US Attorney’s Office for the District of Columbia aggressively opposed Stone’s motion for a new trial based on juror misconduct, and Judge Berman Jackson ultimately denied the motion. But this is the kind of claim that can justify granting a defendant’s request for release pending appeal. Under 18 USC Sec. 3143, a defendant is entitled to bail pending appeal in the following situation:
(b) Release or Detention Pending Appeal by the Defendant.—(1) Except as provided in paragraph (2), the judicial officer shall order that a person who has been found guilty of an offense and sentenced to a term of imprisonment, and who has filed an appeal or a petition for a writ of certiorari, be detained, unless the judicial officer finds—(A) by clear and convincing evidence that the person is not likely to flee or pose a danger to the safety of any other person or the community if released under section 3142(b) or (c) of this title; and(B )that the appeal is not for the purpose of delay and raises a substantial question of law or fact likely to result in—(i) reversal,(ii) an order for a new trial,(iii) a sentence that does not include a term of imprisonment, or(iv) a reduced sentence to a term of imprisonment less than the total of the time already served plus the expected duration of the appeal process.
Judge Berman Jackson has already found by “clear and convincing” evidence that Stone is not likely to flee or pose a danger to any other person. She did that when she allowed him to be released after sentencing. So that issue is already resolved in his favor.
The real issue deals only with (B), and concerns the nature of his claims on appeal. Many mistake this provision to mean that a defendant must show a significant likelihood of prevailing on appeal, but that is incorrect. All a defendant needs to show is that he has raised a “non-frivolous” ground on appeal which involves a “substantial question of law of fact” that if resolved in the defendant’s favor WOULD result in an order for new trial.
The issue of “juror misconduct” is such an issue. It does not depend on the facts underlying his conviction, or some evidentiary ruling made during trial by the judge. It turns on Stone’s “fair trial” rights, and whether Judge Berman Jackson was correct on the law in finding no error in the juror’s failure to disclose information that might have led to inquiries about “bias,” and which could have led to her being disqualified by the Court “for cause” or struck by the defense with one of their “preemptory” challenges. The Appeals Court does not have to decide Stone might win in order to justify bail pending appeal, only that Stone has raised as serious issue that would warrant a new trial if he wins on appeal.
So an issue that might arise for the Trump Administration will be whether or not to aggressively oppose an effort by Stone to be granted bail pending appeal. If they do not, you will hear more braying on the left that AG Barr is corrupting DOJ. But in this instance I think it would be a correct decision on the law to not oppose an effort by Stone to get bail pending appeal.