Retire Universal Injunctions

"The combination of universal injunctions and the mandatory legal process has made courts more prominent in our political life."

By and
39

There’s not much worth discussing yet in Donald Trump’s criminal trial in New York, so Sarah and David focus on the Supreme Court and a case on Idaho’s law restricting gender-transition treatment for minors. Plus: Murmurs about Clarence Thomas’ brief absence.

The Agenda:
—Election law crimes, tax crimes, and falsification of business records
—Challenges of broad injunctions
—Idaho’s Vulnerable Child Protection Act
—SCOTUS exhausted with emergency docket applications
—Justices call to retire universal injunctions
—January 6 arguments before SCOTUS
—SCOTUS declines to intervene in a police lawsuit against a Black Lives Matter activist
—Obstructions in official proceedings
—Legal issues in the Iran-Israel conflict

Show Notes:
—Labrador v. Poe
—Counterman v. Colorado
—18 U.S. Code § 1512 – Tampering with a witness, victim, or an informant

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Comments (39)
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  1. Avatar photo
    Bill Dyer (aka Beldar)

    Because it's a topic Ms. Isgur & Mr. French have addressed repeatedly on AO (as per my credit to her at the bottom), and because I've got an otherwise as-yet-unremarked SCOTUS decision from Apr. 12 worked in for purposes of comparison, I reprint here this comment I left today on Messrs. Warren, Drucker & Hilu's excellent Dispatch Politics newsletter:

    ------

    Under the heading "... if you can keep it":

    It's turning out that campaign finance regulation's central premise, to stay within First Amendment boundaries, of bringing transparency to the political marketplace — in lieu of any economic- or content- or viewpoint- or partisan-based substantive regulation — is being given a vigorous workout by Mr. Trump.

    Yes, we know that he's taking money he's raising on the campaign trail, from donors (including but by no means limited to small-dollar internet/cellphone solicited donors) who think they're contributing to Make Again or Save America, or at least elect Donald Trump, when the money is actually going to criminal defense lawyers. Thanks to the campaign finance laws, that information has been disclosed.

    In theory, rational and ethical members of the public should take that information — that Trump is swindling his campaign donors, robbing Peter to pay Todd to defend Donald — and say to themselves: "Self! This man is a scoundrel! He's unfit for office and should be in prison! No one should send him another bloody nickel!"

    In practice, hundreds of thousands of suckers are now waiting for the details of their random selection from all donors to receive a personal tour by Trump of Mar-a-Lago.

    In my federal securities law courses in law school, we debated the counterintuitive but basically correct position that so long as you FULLY DISCLOSE your fraudulent intentions to bilk investors through stock exchange transactions, you can indeed defraud them without civil or criminal liability under section 10(b) of the Securities Exchange Act of 1934 and Rule 10b-5 thereunder, which together are the principal (but not sole) means by which the federal securities laws protect against fraud. In an opinion by Justice Sotomayor for a unanimous SCOTUS just 10 days ago, the federal courts have once again limited the extent to which silence, when there's no duty to speak, can be interpreted as omission which makes other "statements made" misleading. It's not quite an embrace of lying by omission, but it's a pronounced refusal by the SCOTUS to bless people suing over what someone didn't say. Macquarie Infrastructure Corp. v. Moab Partners, LP (https://www.supremecourt.gov/opinions/23pdf/22-1165_10n2.pdf).

    So, no remedy under the federal securities law, in general, if you're this guy: "They told me when I bought this stock that only a fool would buy it, that it wasn't worth the paper it was printed on, and that indeed the stock certificate might spontaneously combust from shame. But when they told me buying this stock would help Donald Trump, and that HE thinks it's a great investment — well, damn, I did what any good American would do, and I doubled my order."

    And likewise, it seems likely that there's no effective federal campaign finance law limitation on Trump substituting George, Thelma, and Manuel for Peter as the victim he's robbing to pay Todd to defend Donald — so long as it's disclosed.

    The experiment isn't over. But this is dispiriting, or should be, for everyone except Todd and his client.

    (Credit Ms. Isgur, who's sung this hymn repeatedly and in better voice than I, but with equivalent dismay I think.)

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  2. Albemarle

    This isn't necessarily related to the latest podcast, but I would love for David & Sarah to talk about--and perhaps have a guest to discuss--the tension between strict adherence to the law and the use of law to pursue justice. As an attorney myself, I have more and more friends and family and fellow church members asking me why certain people are using the law in a way that seems unjust, or saying that the law has no real purpose (or even legitimacy) if it results in unjust outcomes. But as I think back over Anglo-American history and reflect on how we ended up with the system we have, the more convinced I am that strict adherence to the system is necessary--because the more leeway we have given folks in authority to "use the law as a tool of justice," the more that flexibility in decision making has been historically abused and therefore resulted in injustice. That is, we should have more trust in the collective moral judgement that results in democratically enacted laws than we should in the individualized judgment of officials that can be swayed by every motive from corruption to undue sympathy (either for the victim or the accused). I love Sarah's quote about using the law to shield the devil because only then can it truly protect me, but I am struggling to find the tools in my belt to explain to lay folks that look to me for answers (or at least well-informed input) on how to think about the justice system in an age where, at least to them, it seems like the justice system is being weaponized against some for political reasons and used as a shield for others. Not saying I agree with that take, but it's what's going on inside the heads of many folks around me, and I want to use the conversation to get to the more foundational issue.

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    1. DRJ

      When I was in law school, I was taught that the ultimate goal may be justice but what one person thinks is just may not be to another. Other countries, especially fascist and communist countries, promise justice. Focusing on "justice" is how they weaponize the law by using show trials, etc.

      Our system of justice is based on due process. We rely on consistent principles, rules, and procedures that are supposed to apply equally to all.

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      1. Avatar photo
        Bill Dyer (aka Beldar)

        I adore this comment. The sword and scales are important, but the statue of Lady Justice ain't the same at all without the blindfold.

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    2. Neil Alice

      I like your comment about “the tension between strict adherence to the law and the use of law to pursue justice.”

      For me, there isn’t too much tension between an adherence to the law and justice. But I take your point because problems seem to appear whenever “justice” acquires a preceding adjective. Although I understand that “justice” means something about protecting the innocent and punishing wrongdoers, I am more suspicious about, say, “economic justice.”

      I like this podcast because it sensibly discusses things that strike me as Lawfare, or the pursuit of political or warlike ends through lawsuits and the court system. Although Lawfare is no doubt better than outright war, it seems ... unseemly. Perhaps Ryan Holiday, whose book Conspiracy—which is about Peter Thiel’s role in Hulk Hogan’s lawsuit against Gawker—could be a potential guest.

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  3. J.Fisher

    I also think you all need to speak with a NY prosecutor or two. The focus on federal crime is basically a red herring, and a built in assumption about what NY law requires. I think this goes hand in hand with the general federal bias of most punditry on state cases like this. Brian Beutler spoke with Rebecca Roiphe, a New York University law professor and former Manhattan prosecutor on the Politix podcast and it is worth a listen.

    https://www.politix.fm/p/alvin-bragg-liberal-critics-wrong?r=36hb8&utm_campaign=post&utm_medium=web

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    1. Avatar photo
      Patterico

      I listened to the free portion of that podcast and found it compelling and in line with my views. There has been a consistent theme since the Bragg charges were filed that Manhattan and New York State criminal law practitioners have tended to see the charges as sound, while ex AUSAs and ex-DOJ people tend to disparage the indictment, often without a firm grasp of the theories Bragg is pursuing.

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      1. J.Fisher

        As a person who has practiced in state and federal court there’s a giant gulf between the two, and shockingly few people who cross over. It’s a blind spot in particular for people who graduated from elite law schools and have never practiced in the rough and tumble arena of state criminal court.

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  4. Avatar photo
    Patterico

    Before you folks opine further on the theories by which Bragg seeks to elevate the falsification of business records theory to a felony, I strongly urge you to read Justice Merchan's opinion rejecting Trump's motion to dismiss:

    https://www.nycourts.gov/LegacyPDFS/press/PDFs/People-v-DonaldTrump2-15-24Decision.pdf

    I think you would learn a lot about the relevant theories Bragg intends to employ, and you could perform a valuable service in describing those to your listeners. There are theories relating to violations of state election law and state tax law that could use some exposition, rather than just beating the dead horse of the FECA violation, which is not the only theory Bragg has.

    The reason I don’t think you have read Justice Merchan's decision yet is the comment that Ms. Isgur made regarding the theory of an underlying crime being falsifying business records for the purpose of concealing the falsification of other business records. Ms. Isgur said that is some "fun turtles all the way down stuff." That may be! But more salient to this trial is that, in the above-linked document, the judge disallowed that theory. If you knew that from reading the judge's decision, it makes no sense at all that you would not tell listeners that is no longer a viable theory.

    For bonus points, you could get more information about the theories by reading Bragg's opposition to Trump's motion to dismiss. It is often cited by Justice Merchan in his order but contains much more explication and legal authority. It's a pretty good document, actually:

    https://www.justsecurity.org/wp-content/uploads/2023/12/Just-Security-Hush-Money-NY-Trump-Clearinghouse-%E2%80%94-State-of-New-York-memorandum-of-law-in-opposition-to-Trump-omnibus-motions-Nov.-9-2023-e-filed-Nov.-15.pdf

    It's not my purpose to pimp my own Substack here, so I won't include a link, but Ms. Isgur should know (since I emailed her the link a month ago) that I wrote a Substack post on March 11 that breaks down the various theories in more detail. My post also corrects two evident errors about the Bragg prosecution that Ms. Isgur made on this podcast and still has not corrected. I still urge her to correct those errors, something that i am surprised and disappointed has not yet happened.

    I'd also recommend revisiting the language of the statute itself. In today's podcast, Ms. Isgur said (and said a similar thing on The Collision" this morning): "To be clear, you have to prove beyond a reasonable doubt that he [Trump] falsified the business records for the purpose of concealing the other crime." That is not exactly accurate, as I noted earlier today in a comment at The Collision. To prove a felony, the statute requires the prosecution to prove that the defendant's intent to defraud "includes" an intent, not just to conceal another crime, but also to commit or aid the commission of another crime. 

    So Bragg need not prove the falsification was "for the purpose of concealing" another crime; he must prove an intent to defraud that "includes" concealing OR committing OR aiding in the commission of another crime. The jury will not be put to the choice of whether Trump intended to benefit his campaign or hide the affair from Melania; it is enough if his intent to defraud "includes" the former motivation. And again, that issue goes only to the FECA violation; the potential underlying crimes here include not just federal election law, but state tax fraud crimes, and state law election law crimes (about which I did not hear one word on this podcast, even in passing).

    This trial is going to be major legal news for weeks, and all indications are that the substance begins next week. If your major complaint is about the legal theories that Bragg is using, you should further educate yourselves on what those theories are, so you can state them accurately to the audience.

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  5. Avatar photo
    Silvertide

    I really appreciate you guys discussing the strike by Israel on the Iranian facility as I was confused on why this wasn't a bigger deal. However, after listening to your response does that mean that if any country has more than 1 military leader together at a conciliate you can blow it up and just say they were planning military actions against your country? I mean that is really impossible to prove so it's just if you think they are? Thanks, I'm just really confused by the international law stuff.

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  6. Mitchzavada34

    I think I have "shall" or "may" covered as far as statutory interpretation goes. However, I am but a simple wine buyer and I am confused why the word "otherwise" is getting so much more attention than the word "or" in the Jan 6 argument. To me, it seems if the law says it is unlawful to do blank OR blank, then actions on either side of the "or" are illegal, "otherwises" notwithstanding. Looking forward to understanding what I am missing!

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  7. MathewA

    Pretty interesting Colorado case on reverse warrants

    https://fedsoc.org/scdw/reverse-keyword-search-warrant-upheld-at-colorado-supreme-court

    I agree with the dissent here. That's way to broad for a warrant.

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    1. Avatar photo
      Taco

      What's the difference between this and the older practice of asking the local library if anyone has checked out a book on something like "idiot's guide to arson" in the past X weeks/months/years?

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  8. Billboyd99

    Might be the hardest I've laughed listening to AO:

    David: “Sarah, do you remember when the first Avengers came out and it was called the greatest crossover in the history of cinema?”

    Sarah: “…..uh….no, but go ahead.”

    😂😂😂😂

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      Bill Dyer (aka Beldar)

      Mr. French may be the best straight man since Art Carney.

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  9. Michael.Mcchesney

    I noticed a technical glitch in this episode while listening to it through the podcast app on my iPad. Sarah was discussing her predictions about public corruption being her worst to her discussing the fabrication of evidence. There was no glitch when I switched to listening to the podcast on this website. The jump was at 49 minutes and 26 seconds on my iPad.

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  10. Avatar photo
    PaulH

    A few notes on the Trump trial, Andy McCarthy stated on his podcast that the judge will not allow into evidence Cohen's guilty pleas on campaign donation charges -- basically his plea doesn't tell us anything about Trump's guilt. Also, one of the underlying crimes that Bragg alleged as supporting the felony conviction (the one Sarah described as "turtles all the way down") has been disallowed by the judge. So a couple of victories for Trump.

    One aspect of the case that Sarah and David have not touched on is that Bragg has to prove that the record falsification was done with an intent to defraud. Bragg has not produced any investor, lender etc. who Trump might have been defrauding. Instead he is arguing that, by attempting to conceal his dalliances, Trump was defrauding the voters of New York by denying them important information. Not only is that a legally implausible definition of fraud, but there is the difficulty that the falsification occurred in February 2017. So how could those actions be an attempt to defraud voters in 2016?

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      Patterico

      Intent to defraud is not as narrow as you think. You might find this article instructive.

      https://www.justsecurity.org/85831/the-broad-scope-of-intent-to-defraud-in-the-new-york-crime-of-falsifying-business-records/

      As to the timing issue, I think Beldar explained it well elsewhere. It seems clear to me, at least, that the decisions to falsify these documents began before the payments were made and before the election. To the extent that the falsification was discussed, planned, contemplated, etc. before the election, I don’t think it’s necessarily fatal that the actual making out of the documents occurred later.

      Also, there are underlying tax fraud crimes you never ever hear discussed that have nothing to do with the election.

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      1. Avatar photo
        PaulH

        In the prosecution's opening statement (See pages 879-881), it is stated that the plan to repay Cohen was hatched in January 2017; so apparently they have no evidence that the falsification was planned before the election. That seems to be a big flaw in the prosecution's case. The statute requires that the falsification be done with an "intent to defraud" -- Who exactly was the Trump attempting to defraud through the falsification?

        Overall, the prosecutions opening statement seems like a lot of showboating and very little analysis. There is much talk of "illegal payments" but no explanation of how any of these payments were illegal. And there is endless discussion of a "conspiracy" -- something that Trump is not charged with.

        From what I can tell, the prosecution doesn't have a case. They can't show that Trump was intending to defraud anyone. And they can't show that the falsification was done with the intent to conceal or commit a crime. Or if they can, they didn't bother to provide any of that evidence in their opening statement.

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        Bill Dyer (aka Beldar)

        Practically no one understands federal or state campaign finance law.

        Everyone, including Trump, understands that lying on tax returns is criminal.

        The key to the timing is that the payment was grossed-up, which ONLY makes sense with respect to a tax return, and by definition that's a tax return which isn't going to be filed until many months later. The cover-up was intended to last forever, because that which the payoff was intended to conceal could still be embarrassing and damaging to Trump even after the election. But the biggest risk was disclosure before the election.

        I don't see any inconsistency or gap in the prosecution's theory here, provided they can prove these facts beyond a reasonable doubt.

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        PaulH

        Why is it clear to you that the decisions were made before the election? It seems more likely, given the tight time frame of events and the shambolic state of the Trump campaign, that Cohen made the payments and the exact mechanism of repayment was decided later. We will see what the evidence of this is -- I am not sure it is critical in any case.

        I don't think the article you cite addresses any issue I have raised. It concludes that "falsifying business records to conceal hush money payments as campaign finance or election law violations" would fit under the statute. I don't doubt that, but it begs the question of what was the violation?

        The federal election law violation has been discussed and think the best argument is that there was none and no intent to do so (though evidence could prove otherwise). What is the state election law violation? It can't be that the NDA itself violated election laws.

        Also there is the issue of "intent to defraud" -- defraud whom? The article states "the intent to defraud must involve an intent to deceive that is material to another’s interest" What "another's interest" is in play here? Bragg seems to suggest that it was New York voters who were defrauded. But New York voters aren't privy to Trump's financial records. Whether Trump records the NDA payment correctly (as legal settlement, for example) or incorrectly (as legal fees), New York voters will have the same information. So it can't be that they are being defrauded by the incorrect entry.

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    2. Michael M

      Seems to me Cohen’s plea is admissible as evidence of the *existence* of that underlying crime (Cohen’s campaign finance violation). Doesn’t need do be direct evidence of Trump’s guilt or innocence. Perhaps the judge still keeps it out because it’s prejudicial, but I’m not sure.

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