Trump sues ABC and George Stephanopoulos

The Complaint is available at this link. The case has been assigned to Chief Judge Altonaga.  Lisa Willis, from the DBR, covers the lawsuit here:

Former President Donald Trump sued ABC and network host George Stephanopoulos on Monday in Miami federal court after Stephanopoulos said on the air the former U.S. president had been found liable for rape.

Trump’s Miami legal team plans to prove the statements were defamatory.

“President Trump was never found liable for rape,” said Alejandro “Alex” Brito, of Brito PLLC.

Brito’s firm filed the defamation lawsuit in the Southern District of Florida against ABC, ABC News, and Stephanopoulos on behalf of Trump.

“[Trump] was accused [on the program] of engaging in rape, and that is, from our estimation, a clear defamatory statement that would meet the requirements of serving as a basis for a defamation per se claim,” Brito said.

The two counts in the complaint are defamation per se and defamation per quod.

During last Sunday’s show, Stephanopoulos questioned Rep. Nancy Mace on her stance as a rape victim supporting the Republican party presidential candidate and former president in light of the May jury verdict in his recent civil trial brought by E. Jean Carroll.

“Why are you supporting someone who has been found liable for rape?” Stephanopoulos asked Mace, who said she was “offended” that the host was trying to “shame me as a rape victim.”

Mace previously revealed she was raped at 16.

“We reached out to ABC and ABC News on Sunday immediately following the news reporting and asked for an apology and a retraction,” Brito said. “And rather than acknowledge that Stephanopoulos crossed the line and made a mistake and provide us with such a retraction, all ABC did was change the headline of a print of this story.”

Missing Justice Scalia

 SCOTUS ruled that "and" means "or." It's pretty wild.

The 11th Circuit, apparently more honest and less conservative than SCOTUS, previously held that and means and.

The Supreme Court case is Pulsifer and it demonstrates that today's Court is one of the most prosecution friendly in a long long time.  I'm sure Scalia would have ruled for the defendant here and I bet he would have carried a majority.   Instead, Justice Kagan takes the government's position that and means or, which is pretty devastating to thousands of prisoners who would have received relief under the First Step Act. 

Justice Gorsuch, who is trying to take over the Scalia mantle as willing to rule for a criminal defendant if that's what the text says, wrote an incredible dissent.  It's worth a read.  

Here's SCOTUSblog's take:

Justice Elena Kagan’s opinion for a sharply divided court in Pulsifer v. United States resolves an ambiguity in the provisions added to federal sentencing law in the First Step Act of 2018, coming down firmly on the side of the government. The problem involves how to read a “safety valve” in federal criminal sentencing laws, which allows defendants to avoid the often lengthy mandatory minimum sentences scattered throughout the federal criminal code. The safety valve requires the defendant to satisfy a laundry list of each of five separate rules.

This case involves the first of those rules, which assesses the defendant’s criminal history. Generally speaking, the point of the provision is that defendants with a serious criminal history are not eligible for the safety valve, and thus must serve the normal mandatory minimum sentence. Before the First Step Act, the criminal history provision excluded all defendants with more than one criminal history point; the First Step Act relaxed that provision, adopting the view that it made the safety valve unreasonably narrow. What the 2018 law substituted was a rule that involves three separate tests, which Kagan describes as testing for “more than 4 criminal history points,” a “3-point offense,” and a “2-point violent offense.” Treating those three tests as A, B, and C, Kagan quotes the statute’s limitation of the safety valve to a defendant who “does not have” A, B, “and” C.

The dispute in the case turns on the meaning of the “and” between subparagraphs B and C. For its part, Kagan explains, “the Government contends that the phrase … creates a checklist with three distinct conditions. [Thus], a person fails to meet the requirement … if he has any one of the three.” In contrast, the defendant contends that the phrase ‘does not have A, B, and C’ sets out a single, amalgamated condition for relief, [which] a defendant … fails … only when he has all three of A, B, and C.” Kagan ultimately agrees with the government’s harsher view: Defendants lose the safety valve if they have A, they lose if they have B, and they lose if they have C.

Federal Judges, including Altman and Scola, head to Israel

 Looks like it’s an amazing trip.  The Jerusalem Post covers it here:

A delegation of 14 US federal judges arrived in Israel on Sunday for a week-long educational tour on the impact of the October 7 massacre and its challenges to the Israeli legal system and the laws of war.

The delegation, facilitated with the help of the World Jewish Congress, also saw the judges visit the Supreme Court of Justice and meet with Justice Ofer Grosskopf.

"We came to learn about how the Israeli legal system works," said Florida Southern District Court Judge Roy Altman, one of the organizers of the trip.

The Jewish Venezuelan-born judge—the youngest federal judge appointed in the US—wanted to know how the legal system managed to address terrorism in general and post-October 7. He noted that the United States saw a lot of new security legislation introduced since the September 11 terrorist attacks, and the discourse centered around the balance of individual rights against safety concerns.

Altman said he was interested in learning "How is Israel managing that balance?"

***

Florida Southern District Court Senior Judge Rober Scola said that he and the entire world were hoping for peace in the Middle East and hoped that Israelis and Palestinians would one day cease fighting over the land and achieve harmony.

On Monday, the delegation spoke to a Palestinian activist, who Scola said impressed upon him the needs required to achieve peace. He hoped that the activist was not a lone voice in the Palestinian community but represented a broader consensus.

Altman said that the judges were there to learn from all sides; in addition to hearing from the Palestinian activist, they also "heard from the acting American ambassador at the time of October 7, so we also heard the American perspective."

While he hoped to see advancement toward peace, Scola said that trust and the quest for peace were going to require the return of hostages, and it had to be appreciated that it was going to take a while for Israelis to process the trauma of October 7.

"One thing that is palpable is how devastating this attack has been to the people here," said Scola.

News & Notes

1.    FACDL-Miami calls for reform at the Miami SAO.  Their statement is here.

2.    There's a new federal rule to prevent forum shopping.  The NYT story:

When anti-abortion activists sued the Food and Drug Administration in 2022 seeking to overturn the approval of the abortion drug mifepristone, they filed their suit in the federal court in Amarillo, Texas, where it was all but assured that the case would be heard by Judge Matthew J. Kacsmaryk, an outspoken opponent of abortion.

Judge Kacsmaryk, the sole federal judge in Amarillo, wound up agreeing with the plaintiffs that the drug was “unsafe.” In his ruling, he invalidated the F.D.A.’s 23-year-old approval of the drug and opened a new front in the post-Dobbs reckoning over abortion rights.

The suit — and the role of Judge Kacsmaryk, who handles 95 percent of the Amarillo civil caseload — was one of the most striking recent examples of “forum shopping,” where plaintiffs to try to cherry-pick sympathetic judges.

Now, forum shopping is about to get harder.

The panel of federal judges who set policy for the rest of federal judiciary on Tuesday announced a new rule intended to curb the practice in civil cases with nationwide implications, like the mifepristone suit.

In such cases, where plaintiffs are seeking a sweeping remedy, like a nationwide injunction, the judge will be assigned at random from across the district instead of defaulting to the judge or judges in a particular courthouse.

3.    Justices Sotomayor and Barrett discuss relationships on the Court (also via the NYT):

A week after Justice Amy Coney Barrett chastised Justice Sonia Sotomayor for choosing “to amplify disagreement with stridency” in a Supreme Court decision on former President Donald J. Trump’s eligibility to hold office, the two women appeared together on Tuesday to discuss civics and civility.

They gave, for the most part, a familiar account of a collegial court whose members know how to disagree without being disagreeable.

“We don’t speak in a hot way at our conferences,” Justice Barrett said, referring to the private meetings at which the justices discuss cases. “We don’t raise our voices no matter how hot-button the case is.”

Justice Sotomayor, who usually gives a sunny description of relations between the justices, registered a partial dissent.

“Occasionally someone might come close to something that could be viewed as hurtful,” Justice Sotomayor said. When that happens, she said, a senior colleague will sometimes call the offending justice, suggesting an apology or other way of patching things up.

Similar interactions can happen if a draft opinion is too sharp, she said. “There is dialogue around that, an attempt to find a different expression,” she said.

4.    The U.S. Marshals want more $$ to protect the Justices.  Via Bloomberg:

The US Marshals Service is seeking $28 million to staff permanent protective details for the Supreme Court justices’ homes, a task it says is straining agency resources nationwide, according to a Justice Department fiscal 2025 budget proposal.

The Marshals Service—which provides protection for members of the federal judiciary—has been temporarily deploying deputy US marshals from each of the country’s 94 judicial districts to handle the 24/7 security for the justices’ nine main residences, plus one vacation home, according to budget documents published Monday.

In fiscal 2023, 23% of deputy US marshals supported at least one residential protection rotation at a justice’s home lasting two to three weeks, according to the budget document. The request says that the service currently sends each new graduating class of deputy US marshals “immediately” to the justices’ homes, where they work for 75 days.

The around-the-clock protection began at the request of Attorney General Merrick Garland in May 2022, after the leak of a draft opinion ahead of the court’s overturning of the constitutional right to abortion, the Marshals said.

The Marshal Service said that, as it deals with other security requests tied to “high-visibility” cases, it needs permanent staff to secure the homes. The service said that full-time personnel is preferred, especially those with specific training who can work toward “the best outcome if an attack or other threat event should occur.” It also cites “the extreme level of impact to the government and the nation if the Justices are not properly safeguarded” in making the request.

What should happen to prosecutors who commit misconduct?

The blog has addressed this question a bunch of times and it's time to ask it again in light of what happened before Judge Wolfson in state court.  Here's the AP coverage, and Rumpole covers it here.  

Although it is an epidemic in both systems, my sense is that prosecutorial misconduct happens less frequently in Florida state court than in federal court, mostly because Florida has depositions and more open discovery.  Do you agree?

Also, when it does happen, judges are more likely to call it out in state court and there are more immediate consequences.  In this case, the prosecutor resigned.  And Kathy Rundle issued a statement.  When does that happen in fed-land?

Much more needs to be done in both systems if there's going to be a real deterrent. 

Your Friday moment of Zen

 Judges are always proud of their law clerks.  But imagine the pride when you hear that your two former clerks are arguing against each other in the 11th Circuit.  Here's Ariel Lett and Zach Vosseler, who both clerked for Judge Gayles, after their argument before the appellate court.

Judge Melissa Damian has been sworn in (UPDATED)

That's her with her children and Chief Judge Altonaga.

That means all three new judges are in and working.  Congratulations again to all three!

Cases will now start getting transferred.

Let the fun begin.

Update with a picture of the swearing in of David Leibowitz, with his wife and son, by Judge Marcus.  Judges Altonaga, Moreno, and Jordan were also present  

You won't believe this total screw up in the Trump case yesterday from SCOTUS

UPDATE -- check out Robert Kuntz' comment in the comment section, theorizing that the metadata debacle wasn't incompetence but was intentional.  I doubt it because it would not surprise me for a second that SCOTUS just does not understand basic tech issues.  Your thoughts?

 It's really hard to believe, but the Supreme Court forgot to wipe the metadata from the Trump opinion that came out yesterday.  Internet sleuths found that the three liberal Justices' "concurrence" actually started out as a partial dissent by Justice Sotomayor.  Slate tells the story here:

The Supreme Court’s decision on Monday to keep Donald Trump on Colorado’s ballot was styled as a unanimous one without any dissents. But the metadata tells a different story. On the page, a separate opinion by the liberal justices is styled as a concurrence in the judgment, authored jointly by the trio. In the metadata of the link to the opinion posted by the court, however, this opinion is styled as an opinion concurring in part and dissenting in part, authored not by all three justices but by Sonia Sotomayor alone. Even a techphobic reader can discern this incongruity through careful copying and pasting, piercing the facade of unanimity that the conservative justices sought to present.

What happened? Most obviously, the Supreme Court rushed out this opinion and forgot to check the metadata. The court, after all, scheduled the opinion’s release only one day earlier, on Sunday afternoon, evidently to hand it down before Tuesday’s Colorado primary. Moreover, the justices did not take the bench to announce the opinion, as they usually do—probably because they had not all planned to be in D.C.—further proving that it was a last-minute release. The deeper question remains, of course: Why was an opinion originally authored by a lone justice as a partial dissent transformed into a concurrence authored by all three liberals together?

In other news, the 11th Circuit bench-slapped DeSantis and Florida for passing a law called the Stop W.O.K.E. Act that prohibited woke mandatory workplace training.  It obviously violated the First Amendment.  Per Judge Grant, joined by Wilson and Brasher:

 This is not the first era in which Americans have held widely divergent views on important areas of morality, ethics, law, and public policy. And it is not the first time that these disagreements have seemed so important, and their airing so dangerous, that something had to be done. But now, as before, the First Amendment keeps the government from putting its thumb on the scale. The State of Florida seeks to bar employers from holding mandatory meetings for their employees if those meetings endorse viewpoints the state finds offensive. But meetings on those same topics are allowed if speakers endorse viewpoints the state agrees with, or at least does not object to. This law, as Florida concedes, draws its distinctions based on viewpoint—the most pernicious of dividing lines under the First Amendment. But the state insists that ordinary First Amendment review does not apply because the law restricts conduct, not speech.

We cannot agree, and we reject this latest attempt to control speech by recharacterizing it as conduct. Florida may be exactly right about the nature of the ideas it targets. Or it may not. Either way, the merits of these views will be decided in the clanging marketplace of ideas rather than a codebook or a courtroom.