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Lawyers, law professors, go to bat for Trump in 11th Circuit

homesafetytechpros — Wed, 02 Oct 2024 06:12:44 +0000

Left: Donald Trump (AP Photo/Mike Stewart, File). Center: U.S. District Judge Aileen Cannon (U.S. Senate). Right: Special counsel Jack Smith (AP Photo/J. Scott Applewhite, File).

In yet another almost-replay of the arguments made before the lower court in Donald Trump’s long-stalled-out Mar-a-Lago case, a group of law professors, legal scholars and a public interest law firm are asking the 11th Circuit Court of Appeals to let them file a brief as amici curiae (“friends of the court”) — on the defendant’s behalf.

On Tuesday, South Texas College of Law Professor Josh Blackman and Florida lawyer Michael Adam Sasso argued that legal scholar and Professor Seth Barrett Tillman, former prosecutor Robert W. Ray, and the conservative Landmark Legal Foundation should be allowed their say as special counsel Jack Smith looks to reanimate the prosecution.

In a motion for leave to file their brief, the attorneys say it is effectively their clients’ turn to catch the court’s ear — because two groups of pro-prosecution amici were allowed to file their own briefs late last month. And, they argue, this is not entirely unlike déjà vu: U.S. District Judge Aileen Cannon allowed all three groups to file briefs in the lower court case and she seriously considered each group during oral arguments.

“These amici advanced arguments that supplemented the positions taken by the Special Counsel and the Defendants,” the motion reads. “The District Court’s order cited these three amici. Now, as this case continues on appeal, assistance from amici continues. The constitutional lawyers have already filed their brief. And the Ray-Tillman-Landmark Amici now seek leave to file a brief.”

In their late September briefs, the pro-prosecution amici argued for the appellate court to reverse the dismissal of the Mar-a-Lago prosecution and for the case to be reassigned to another jurist.

In July, after “careful study,” Cannon threw out the case by finding U.S. Attorney General Merrick Garland had unlawfully appointed Smith as special counsel. She favorably cited several sections of Justice Clarence Thomas’ concurrence in Trump’s Supreme Court immunity case.

While Smith has not tried to have Cannon removed, the pro-prosecution amici cited several reasons related to the pace of the case and access to certain information in their effort.

More Law&Crime coverage: Mar-a-Lago judge allows former Scalia clerk, law professor, and attorney for anti-Trump coalition to argue in court over Jack Smith’s power to prosecute

The pro-Trump amici, however, largely sidestep the issue of Judge Cannon continuing on the case one way or another — by arguing that the dismissal was properly decided.

“The District Court correctly dismissed the indictment,” the pro-Trump amici argue in their 48-page Tuesday filing.

The lone reference to the removal effort is in a footnote:

Judge Cannon carefully parsed the historical record, and read it in a charitable manner toward Smith. This effort to reassign the case, which Smith wisely did not support, is as meritless as the “orchestrated campaign” of frivolous complaints filed against Judge Cannon.

And that historical record, the brief argues, “is not spotty — it is near-empty” when it comes to outside lawyers hired as special counsels with the kind of power and authority that Smith currently claims.

“Contrary to Smith’s incomplete account, this documentary record shows that during these six presidential administrations, Attorneys General retained outside lawyers as Special Counsels either: (1) to assist a U.S. Attorney with prosecutions, or (2) to assist the Attorney General with an investigation,” the filing reads. “In none of these matters did the Attorney General appoint an outside lawyer as a Special Counsel, and then delegate to him the powers now claimed by Smith: all of the powers of a Senate-confirmed U.S. Attorney.”

And, the potential amici say, Cannon even gave Smith some leeway earlier on. This leeway, they say, was undeserved.

“The District Court understated how weak the historical record is for Smith,” the brief argues.

More Law&Crime coverage: Lawyers, law professors, ex-DOJ officials tell 11th Circuit that Trump’s dismissed yet ‘seemingly straightforward’ Mar-a-Lago case must be taken away from Judge Cannon

In the proposed brief, the would-be amici — who the 11th Circuit has yet to approve — also spend substantial time going after Smith for relying on the landmark Supreme Court case of United States v. Nixon.

In that case, the justices found that four particular statutes “vested in” the attorney general “the power to appoint subordinate officers to assist him in the discharge of his duties.” Those same statutes were later used by Garland to imbue Smith with prosecutorial power.

In Cannon’s opinion, however, she dismissed that statement as “dicta” because, among other reasons, the case itself was not about “the Attorney General’s statutory appointment authority or the Appointments Clause more generally.” Trump’s attorneys have indicated they agree the language in Nixon was dicta.

The pro-Trump amici also say the Nixon case should not have any bearing here — but distinguish their arguments somewhat.

“Defendants’ attorneys seek only to show that United States v. Nixon’s contested language is dicta,” the motion for leave to file reads. “Ray-Tillman-Landmark, by contrast, seeks to establish that Nixon was a unique decision based on unique facts and a unique statutory and regulatory regime, which is not applicable in the instant litigation.”

In the Nixon decision, the justices, “expressly and repeatedly described the circumstances giving rise to the conflict between Nixon and [Special Prosecutor Leon] Jaworski as unique,” the brief reads.

The amici go on to cite at least four instances in which some permutation of the word “unique” is used to describe the situation between the president and the prosecutor in the Nixon case.

“The clear implication is that the nexus of facts and operative law involving pre-Nixon Special Counsels, were, in fact, dissimilar, and that the Court’s analysis should not be extended to different facts concerning future Special Counsels,” the brief reads. “Nixon was the proverbial ticket good for one ride — or perhaps, one president.”

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11th Circuit rules for athletic association that refused to allow pregame prayer over PA system

homesafetytechpros — Mon, 16 Sep 2024 02:04:19 +0000

Religious Law

11th Circuit rules for athletic association that refused to allow pregame prayer over PA system

By Debra Cassens Weiss

September 4, 2024, 10:09 am CDT

A federal appeals court has ruled against a private Christian school alleging that its First Amendment rights were violated when the Florida High School Athletic Association rejected its request to broadcast a pregame prayer over the public address system. (Image from Shutterstock)

In a Sept. 3 decision, the 11th U.S. Circuit Court of Appeals at Atlanta found no violation of the Cambridge Christian School’s rights to free speech and free exercise of religion, report Courthouse News Service and the Florida Phoenix.

After the prayer request was denied, the Cambridge Christian School and the opposing team prayed at midfield before play began in the 2015 state championship football game at the Citrus Bowl in Orlando, Florida.

Messages on the PA system before the championship game at a government-owned stadium were government speech with no First Amendment restrictions, the 11th Circuit said.

Three factors—history, endorsement and control—support the conclusion that the PA system policy was government speech, the appeals court said.

The history of the pregame speech in playoff games shows that it was entirely scripted and typically limited, making it traditional government speech. Observers could reasonably think that the pregame comments were endorsed by the government. And the association controlled the script. PA announcers had to follow instructions for promotional announcements, player introductions and awards ceremonies.

The appeals court also said the Tampa, Florida, Christian school’s request for declaratory and injunctive relief are moot because of a new Florida law and new policy by the association. The law, which took effect in July 2023, requires the association to allow schools to make opening remarks that can include prayers at championship games.

Under association policy adopted to comply with the law, opening remarks must be under two minutes in length and carry a disclaimer that they are not endorsed by the association. The remarks cannot be derogatory, rude or threatening.

The appeals court also said the Cambridge Christian School lacked standing for an injunction because there is no indication that it will return to the championship soon.

“Hope springs eternal, but standing cannot be built on hope,” the 11th Circuit said. “With all due respect to the Cambridge Christian Fighting Lancers, there’s nothing to suggest that the team’s participation in a future football state championship is imminent or even likely.”

The school was represented by the First Liberty Institute, a group that litigates religious liberty cases, according to a prior June 2023 press release on the case.

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Trump goes to SCOTUS for 11th hour reprieve over Jan. 6 case

homesafetytechpros — Tue, 13 Feb 2024 06:03:53 +0000

Left: This handout provided by the United States Postal Service shows the Yogi Berra stamp, issued on Thursday, June 24, 2021. (United States Postal Service via AP) Right: Republican presidential candidate former President Donald Trump speaks at a Get Out The Vote rally at Coastal Carolina University in Conway, S.C., Saturday, Feb. 10, 2024. (AP Photo/Manuel Balce Ceneta)

Former President Donald Trump on Monday afternoon asked the U.S. Supreme Court to put a pause on a recent appellate court ruling rejecting his claim that he is immune from criminal prosecution over the pro-Trump riots at the U.S. Capitol Complex on Jan. 6, 2021.

“Without immunity from criminal prosecution, the Presidency as we know it will cease to exist,” the application for a stay pending the filing of a petition for writ of certiorari argues.

The 45th president’s argument is largely pinned on procedural maneuvering — asking for an indefinite kibosh while defense attorneys prepare, and then file, an appeal directly with the nation’s high court.

Procedure is also the key argument advanced in the stay application.

Last week, a three-judge panel on the U.S. Court of Appeals for the District of Columbia unanimously ruled Trump does not have presidential immunity from prosecution on charges that he criminally conspired to overturn the results of the 2020 presidential election.

The upshot of that decision, Trump’s stay application claims, is that U.S. District Judge Tanya Chutkan could receive the appellate court’s mandate “in four business days if President Trump did not file an application in [the Supreme] Court to stay the mandate in that time.”

All that potential law and order, the former president argues in his eleventh-hour stay application, is simply too much, too fast. And, Trump claims, there is a familiar bit of legal whiplash in the case.

The bid to pause the criminal proceedings opens with a quote by legendary New York Yankees, and New York Mets, catcher, Yogi Berra.

“This application is ‘déjà vu all over again,”” the 110-page filing by Trump’s attorneys reads.

The filing references an earlier failed effort by special counsel Jack Smith to force the nine justices’ hands and issue a preemptive decision on Trump’s “absolute immunity” claims before the appeals court could review and rule on the issue.

“Two months ago, after the district court denied President Trump’s claim of Presidential immunity in this criminal case, the Special Counsel filed a petition for certiorari before judgment asking this Court to undertake an extraordinary departure from ordinary appellate procedures and decide the vital and historic question of Presidential immunity on a hyper-accelerated basis,” the stay application recalls. “This Court correctly chose to follow standard judicial process and declined to do so.”

Now, Trump argues, because Smith’s efforts to resolve the issue are the impetus behind the appeals court’s per curiam immunity denial, which occurred “in an extraordinarily fast manner,” the Supreme Court should once again rule in the ex-president’s favor.

“This Court should stay the D.C. Circuit’s mandate to forestall, once again, an unprecedented and unacceptable departure from ordinary appellate procedures and allow President Trump’s claim of immunity to be decided in the ordinary course of justice,” the application argues.

Trump’s application says Smith cited only the “imperative public importance of a prompt resolution” of the case when arguing and winning the denial of Trump’s immunity claim before the D.C. Circuit panel — and the subsequent almost-immediate return back to Chutkan’s court.

“In the Court of Appeals, as here, the Special Counsel never explains why it is so ‘imperative’ that this case proceed to trial immediately, forestalling ordinary en banc review and even this Court’s review procedures,” the application goes on. “The prospect that an interlocutory appeal of an immunity question might affect a pending trial date is commonplace and routine.”

In the underlying case, Smith is prosecuting Trump on four criminal counts, including conspiracy to defraud the United States, conspiracy to obstruct the U.S. Congress, and conspiracy against rights.

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