Trump Indicted

By John R. Byrne

The shoe has officially dropped. CNN covers it here. Initial appearance will be next Tuesday. Going to be a busy courthouse. No word yet on judge assignment. 

Judge Raag Singhal shows us what real judging is like... issues sentence of time served.

 Check out the sentencing transcript below.  We need more judges like Judge Singhal, who recognizes that not every conviction requires jail or even probation:

It's the judgment the Court that on this particular

case Mr. Cherenfant not be placed in custody, be technically

sentenced to a sentence of time served.

With regard to probation, what I'll do just for record

purposes, I'm going to place him on one day probation with no

special conditions. And I'm going to automatically early

terminate it once I finish what I have to say.

So Mr. Cherenfant, the other people in this courtroom

have heard this before, but you come to me, and I'm in a

position where I've presided over just about 10,000 sentencing

hearings. That's a lot more sentencing hearings than most

people. Between being a lawyer and a judge, I've been in the

criminal court system every day since June 5th, 1990. So this

is actually my 33rd anniversary of being in a criminal court.

And you did something wrong, but I've never had a

defendant appear before me who has had such an exemplary past.

And one thing that criminal lawyers know is that you try to

take the full measure of a man when you sentence them, and you

don't judge them by their worst day. And frankly, that

argument's designed for people that have had a lot of bad days.

And so that's why they talk about the worst day. You don't

even have a lot of bad days. I mean, I'm stretching to find

another bad day. I don't think the traffic ticket's

necessarily a bad day. I mean, it caused you to make positive

changes in your life.

But, you know, you did a lot of things here to try to

help you. You worked with the government in the sense that

this case came before the Court via an information, not an

indictment, and you worked with your lawyer, and you admitted

your guilt. And I know that you and your children and your

wife will be very successful going forward. You just have to

keep doing the things that you've been doing. And, of course,

if you travel to Haiti again, you know what these requirements

are. And I do wish you the best of luck. 

Cherenfant Sentencing by David Oscar Markus on Scribd

um.... legal writing?

 

Grand jury in *Florida* to hear document case against Trump

 Interesting that the special counsel has chosen Florida instead of D.C.  From NBC:

A federal grand jury will meet this week in Florida to hear evidence in special counsel Jack Smith's investigation of former President Donald Trump’s handling of classified documents, according to sources familiar with the investigation.

It is not clear how the court proceedings in Florida relate to the work of a separate grand jury in Washington, where prosecutors had been presenting evidence and witness testimony for months. The development was first reported by The Wall Street Journal.

Why prosecutors are using multiple grand juries, and whether they are ready to seek an indictment in either jurisdiction is unknown. The Justice Department declined to comment on the investigation.

Even Donald Trump deserves the protections of Attorney-Client Privilege

An open letter to my liberal criminal defense lawyer colleagues:

I know, I know -- you really don't like Donald Trump.  And even though you are a criminal defense lawyer, you don't mind him being charged or even convicted.  

I'm not going to try to change your mind on any of that.

But... what prosecutors and judges are doing in order to obtain that charge and conviction should give you great concern.  Specifically, according to this New York Times article, the government has forced one of Trump's lawyers, Evan Corcoran, to testify before the grand jury and to give up his work product, including written and voice notes.

This is absolutely insane.

From the Times:

Government investigators almost never obtain a clear lens into a lawyer’s private dealings with their clients, let alone with such a prominent one as Mr. Trump. A recording like the voice memo Mr. Corcoran made last year — during a long drive to a family event, according to two people briefed on the recording — is typically shielded by attorney-client or work-product privilege. Some details of the notes were reported earlier by The Guardian.

But in March, a federal judge ordered Mr. Corcoran’s recorded recollections — now transcribed onto dozens of pages — to be given to the office of the special counsel Jack Smith, who is leading the documents investigation.

The decision by the judge, Beryl A. Howell, pierced the privilege that would have normally protected Mr. Corcoran’s musings about his interactions with Mr. Trump. Those protections were set aside under what is known as the crime-fraud exception, a provision that allows prosecutors to work around attorney-client privilege if they have reason to believe that legal advice or legal services were used in furthering a crime.

But using crime fraud to obtain Corcoran's lengthy voice memos to himself about his interactions with the former president is a huge stretch of that doctrine and may be used in the future to get your notes with your clients.  We should all be pissed.  

 Unfortunately, the order by Judge Beryl Howell (a former narcotics prosecutor, who helped create and defend the Patriot Act) is sealed so we can't see the reasoning.  But the Times has this:

Judge Howell’s memorandum compelling Mr. Corcoran to answer questions in front of a grand jury and to produce his notes described the lawyer as essentially a casualty of Mr. Trump’s months of gamesmanship with investigators and National Archives officials about returning the documents, according to a person familiar with the memo’s contents.

As The New York Times reported in April, Judge Howell wrote in the memorandum, according to the person familiar with its contents, that Mr. Trump’s earlier actions and “misdirection” of archives officials’ efforts to retrieve what turned out to be more than a dozen boxes of records were a “dress rehearsal” for the May subpoena.

 If prosecutors can get a criminal defense lawyers' notes and impressions every time a client offers some misdirection, then get ready for a flood of motions asking for our privileged files.  

This isn't the way, even if the target is Donald Trump.

Jury Out in Carollo Trial

 By John R. Byrne

A few weeks back, the blog covered courtroom photograph-gate from the Joe Carollo trial. It's now in the jury's hands. The plaintiffs, businessmen William "Bill" Fuller and Martin Pinilla, allege that Carollo used City machinery to target their businesses because they supported his political opponent. Plaintiffs are seeking $100 million. According to records obtained by the Herald, before trial began, the City had already paid $2 million in attorneys' fees to Carollo's lawyers.

There were some unusual happenings during the trial and the Herald covers some of the highlights here. 

UPDATE: Jury found Carollo liable. Owes $60M in compensatory and punitive damages.

Go Heat.

"Suffer and suffer until you get what you want."

 Coach Spo sounds like a criminal defense lawyer!  GO HEAT:

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And Rumpole, even though you are a Heat hater, you may come around after seeing that Spo quoted one of your favorite speeches after the game:

Heat Coach Erik Spoelstra referenced Teddy Roosevelt’s Man in the Arena speech in his post game comments. One of best speeches ever. Here is excerpt. @HeraldSports @MiamiHEAT #MiamiHeat #Heat pic.twitter.com/WXyMo7RLr3

— Michelle Kaufman (@kaufsports) May 30, 2023

A new alliance on the Supreme Court...

 ... and it's not who you might think: Justices Gorsuch and Jackson.  Via David Lat (you should subscribe to his newsletter if you haven't already):

The two justices have joined forces in four opinions so far this Term, per Lydia Wheeler of Bloomberg Law: Tyler v. Hennepin County, where Justice Gorsuch wrote a concurrence that only Justice Jackson joined; Polselli v. Internal Revenue Service, where Justice Jackson wrote a concurrence that only Justice Gorsuch joined; Bittner v. United States, where Justice Jackson was the only member of the Court to join Justice Gorsuch’s majority opinion in full; and Andy Warhol Foundation for Visual Arts, Inc. v. Goldsmith, where Justice Gorsuch wrote a concurrence that only Justice Jackson joined. In addition, Justice Jackson was the only justice to join Justice Gorsuch when he dissented in December from the grant of certiorari in Arizona v. Mayorkas (the Title 42 case that the Court recently dismissed as moot).

What’s behind this joining of forces? I agree with Professor Anthony Michael Kreis, who told Bloomberg Law that the justices’ shared concern about “protecting the little guy” reflects Gorsuch’s libertarian worldview and Jackson’s concern for civil rights. I also concur with Professor Dan Ortiz, who notes that their apparent support for the rule of lenity is consistent with Gorsuch’s concern about overreaching government and Jackson’s pre-robescent career as a public defender.

I also wonder whether it might reflect two other things. First, in their inaugural terms on the Court, both Justices Gorsuch and Jackson were surprisingly outspoken on the bench for junior justices (and got very different coverage for it, as noted by Ted Frank—mostly critical for Justice Gorsuch, and mostly “Yas Queen!” for Justice Jackson). As two justices less inclined to show deference to senior colleagues and more willing to express their views openly, it makes sense for them to team up in separate opinions that opine a bit more broadly than their colleagues.

Second—and this is entirely speculation on my part, but drop me a line if you have actual info—I wonder if the two might be personally friendly or copacetic. Cf. Justice Antonin Scalia and Justice Ruth Bader Ginsburg, who enjoyed an across-the-aisle friendship over many years together on the Court (even if it didn’t manifest itself in their votes or opinions). Maybe Justice Jackson can invite Justice Gorsuch, an avid outdoorsman who presumably enjoys wilderness-y stuff, to a viewing party for Survivor, one of her favorite shows. In her recent commencement speech at American University’s Washington College of Law, Justice Jackson cited Survivor for various life lessons, including “understanding that this game is about existing both in community and conflict”—wisdom that might explain her alliance with Justice Gorsuch.