“So as she stood before the jury that August day in 1997, Harris, 32, did something risky: She acknowledged all of her victim’s flaws. Yes, the young girl had lied to the police about being forced to enter the Oakland home where she was raped. Yes, she also lied about her age and the clothes she was wearing. She was, in Harris’ candid estimation, “difficult to deal with,” “emotionally immature, and probably not very developed.”
“But the law does not say that you have to like the victim in order to decide that she should be protected,” Harris continued. “The law does not say that she had to grow up in a normal family, whatever that is, grow up under the normal circumstances, whatever that may be, in order to be protected by the law.”
It was a bold strategy, one even veteran prosecutors might have thought twice about, but it displayed Harris’ early aptitude for performing well in high-stakes battles fraught with obstacles. “The truth isn’t always how you picture it — rosy and everyone’s happy and everyone comes from a great background and it’s easy,” said Ken Mifsud, who was in the same intern class as Harris in 1988 at the Alameda County District Attorney’s Office.”
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“Harris herself asked the victim a crucial question: Why did she lie to both the police and at the preliminary hearing about being forced into the house where she was raped?
“Because I was scared that if I had told them that I would go there willingly,” the girl replied, “that it was not rape.”
Harris followed up with why she eventually decided to tell the truth. “Because I had talked to you guys and understood how important it was,” the girl said.
I called one of the preeminent authorities on child witnesses to get a sense of how unusual Harris’ strategy was. Gail Goodman, the director of the Center for Public Policy Research at UC Davis, is widely credited as the founder of the modern scientific study of child victims as witnesses. “That is unusual, in my experience, that a prosecutor would do that,” Goodman told me.
The girl, Harris told the jury in her closing statement, was the “perfect victim” for the men to go after. Would a girl who was healthy and secure enter that apartment, thinking that the men in there would “talk her through her problems at the group home” across the street? No, she would not.
“Are you to believe that [she] went through this entire process of testifying, of being cross-examined in that manner, of being physically examined, because she’s just making it up because she wants to manipulate?” Harris asked the jury. “Is she that complex? No.”
“She is that vulnerable. And they knew it, and they raped her.”
The jury believed the girl on the most important question. They found the two men guilty of rape. Evans was sentenced to 18 years in prison and Lee to 14 years. When the victim heard the verdict, she “melted in front of us,” according to O’Malley.
“Nobody ever stood up for her,” O’Malley said. “No one ever spoke for her. … Kamala made her feel like she was the only important person in her life. She focused on her. She empowered her.” (Years later, O’Malley reconnected with the young woman, who she said turned her life around. She was married with kids and was “very happy.”)”
“When the Supreme Court endorsed broad presidential immunity from criminal charges last month, it raised troubling questions about whether and how former occupants of the White House can be held accountable for abusing their powers. In an initial attempt to answer those questions, Special Counsel Jack Smith this week unveiled a superseding indictment in the federal election interference case against former President Donald Trump—the same case that prompted the Court’s ruling.
The viability of United States v. Trump is unclear at this point. The Supreme Court charged U.S. District Judge Tanya Chutkan with reviewing the charges against Trump in light of its ruling, and any decisions she makes will be subject to appeal. There is no chance that the case will go to trial before this year’s presidential election, and if Trump wins, we can be sure he will find a way to make it disappear. Smith’s revisions nevertheless suggest what it might take to successfully prosecute a former president despite the obstacles that the Supreme Court has erected.
The most notable change from the original indictment is the excision of any reference to Trump’s interactions with the Department of Justice (DOJ). The government initially portrayed those conversations, in which Trump pressured DOJ officials to investigate his baseless claims of systematic election fraud, as part of a criminal scheme to overturn President Joe Biden’s victory. But the Supreme Court explicitly ruled out criminal liability based on such contacts.
Trump was exercising his “conclusive and preclusive” authority as president when he urged the DOJ to validate his stolen-election fantasy, Chief Justice John Roberts wrote in the majority opinion. The executive branch has “‘exclusive authority and absolute discretion’ to decide which crimes to investigate and prosecute,” he wrote, “including with respect to allegations of election crime.”
As Justice Sonya Sotomayor noted in a dissent joined by Justices Elena Kagan and Ketanji Brown Jackson, that holding seems to give presidents a lot of leeway to wield the federal government’s daunting prosecutorial powers against their political or personal enemies. Under the majority’s “view of core powers,” she said, “even fabricating evidence and insisting the [Justice] Department use it in a criminal case could be covered.”
Sotomayor also noted other possible implications of the majority’s position. When a president “uses his official powers in any way, under the majority’s reasoning, he now will be insulated from criminal prosecution,” she warned. “Orders the Navy’s Seal Team 6 to assassinate a political rival? Immune. Organizes a military coup to hold onto power? Immune. Takes a bribe in exchange for a pardon? Immune. Immune, immune, immune.”
Roberts faulted Sotomayor for “fear mongering on the basis of extreme hypotheticals.” But we do not need imaginary scenarios to understand the perils of assuring presidents that they need not worry about the threat of criminal prosecution as long as they are exercising their “core powers.”
The proposed articles of impeachment against Richard Nixon alleged, among other things, that he made “false or misleading statements to lawfully authorized investigative officers and employees of the United States” and that he interfered with “the conduct of investigations by the Department of Justice of the United States, the Federal Bureau of Investigation, [and] the office of Watergate Special Prosecution Force.” The issue of whether Nixon could have faced criminal charges based on those allegations was never litigated, because he resigned before he could be impeached, and his successor, Gerald Ford, granted him a pardon that covered any federal offenses he might have committed in office. But according to the Supreme Court’s reasoning in Trump v. United States, Nixon’s corrupt interactions with the DOJ would have been off limits for federal prosecutors.
Beyond that specific instruction, the Court was hazy about the extent of presidential immunity. “We conclude that under our constitutional structure of separated powers, the nature of Presidential power requires that a former President have some immunity from criminal prosecution for official acts during his tenure in office,” Roberts wrote. “At least with respect to the President’s exercise of his core constitutional powers, this immunity must be absolute. As for his remaining official actions, he is also entitled to immunity. At the current stage of proceedings in this case, however, we need not and do not decide whether that immunity must be absolute, or instead whether a presumptive immunity is sufficient.”
What about Trump’s interactions with Vice President Mike Pence? Trump persistently pressured Pence, in private and in public, to intervene on his behalf during the congressional ratification of the election results by rejecting electoral votes for Biden. Citing the “contingent” electors that his campaign had recruited in several battleground states, Trump urged Pence to send both sets of slates “back to the states” so that legislators could resolve a nonexistent controversy about the actual results. Pence repeatedly resisted, saying he had no authority to do what Trump asked.
The original indictment portrayed those interactions as a key part of a criminal conspiracy to change the outcome of the election. That aspect of the indictment presented “difficult questions,” according to the Supreme Court. “Whenever the President and Vice President discuss their official responsibilities, they engage in official conduct,” Roberts wrote. “Presiding over the January 6 certification proceeding at which Members of Congress count the electoral votes is a constitutional and statutory duty of the Vice President. The indictment’s allegations that Trump attempted to pressure the Vice President to take particular acts in connection with his role at the certification proceeding thus involve official conduct, and Trump is at least presumptively immune from prosecution for such conduct.”
The question, Roberts said, is “whether that presumption of immunity is rebutted under the circumstances.” He noted that the vice president is acting “in his capacity as President of the Senate,” part of the legislative branch, when he oversees the electoral vote count. The government therefore “may argue that consideration of the President’s communications with the Vice President concerning the certification proceeding does not pose ‘dangers of intrusion on the authority and functions of the Executive Branch.'”
Would that argument be correct? Maybe not, Roberts suggested: “The President may frequently rely on the Vice President in his capacity as President of the Senate to advance the President’s agenda in Congress. When the Senate is closely divided, for instance, the Vice President’s tiebreaking vote may be crucial for confirming the President’s nominees and passing laws that align with the President’s policies. Applying a criminal prohibition to the President’s conversations discussing such matters with the Vice President—even though they concern his role as President of the Senate—may well hinder the President’s ability to perform his constitutional functions. It is ultimately the Government’s burden to rebut the presumption of immunity.”
The new indictment tries to do that in several ways. It notes that Pence was Trump’s “own running mate,” meaning the intervention that Trump demanded would personally benefit both of them. It adds that “all of the conversations between [Trump] and [Pence] described below focused on [Trump] maintaining power.” The indictment points out that Trump “had no official responsibilities related to the certification proceeding, but he did have a personal interest as a candidate in being named the winner of the election.” It later reiterates that Trump “had no official role” in the certification process.
The indictment also emphasizes the private character of other conduct that might be construed as “official acts.” Regarding Trump’s pressure on state officials to reverse Biden’s victories, for example, the indictment notes that Trump “had no official responsibilities related to any state’s certification of the election results.” Discussing Trump’s “fake electors” scheme, the indictment likewise notes that he “had no official responsibilities related to the convening of legitimate electors or their signing and mailing of their certificates of vote.”
Like the original indictment, the revised version describes the notorious telephone conversation in which Trump leaned on Georgia Secretary of State Brad Raffensperger to “find” the votes necessary to reverse the election outcome in that state. But the indictment makes a point of noting that the participants in that call included “private attorneys” and White House Chief of Staff Mark Meadows, who “sometimes handled private and Campaign-related logistics” for Trump.
The indictment still relies on Trump’s social media posts to make the case that he pushed a phony grievance aimed at preventing Biden from taking office. But it argues that such communications should not be viewed as “official acts.”
Although Trump “sometimes used his Twitter account to communicate with the public, as President, about official actions and policies,” the indictment says, “he also regularly used it for personal purposes—including to spread knowingly false claims of election fraud, exhort his supporters to travel to Washington, D.C. on January 6, pressure the Vice President to misuse his ceremonial role in the certification proceeding, and leverage the events at the Capitol on January 6 to unlawfully retain power.” And when Trump riled up his supporters that day, stoking their outrage at the prospect that Congress was about to recognize Biden’s supposedly fraudulent victory, he was speaking at “a privately-funded, privately-organized political rally.”
The indictment lists five alleged co-conspirators, “none of whom were government officials during the conspiracies and all of whom were acting in a private capacity.” It describes four as “private attorney[s]” and one as “a private political consultant.””
“Did the social justice protests of 2020 cause a wave of police officers to leave the force? A recent study suggests the truth may not be so simple.
In May 2020, a Minneapolis police officer killed George Floyd by pinning him to the ground with his knee. When video of the encounter circulated online, the image of a white police officer nonchalantly kneeling atop a black man until he asphyxiated ignited a powder keg: Americans, stir-crazy from sheltering in place for the first three months of the COVID-19 pandemic, took to the streets to protest police brutality, in some cases violently.
The conventional wisdom says that amid a nationwide spike in crime and mounting protests in which demonstrators proclaimed that “all cops are bastards,” many officers simply gave in.”
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“A June 2021 survey from the Police Executive Research Forum (PERF) found a 45 percent increase in retirements in 2020–2021 when compared to the previous year, as well as an 18 percent rise in resignations.
But a new study from Duke University law professor Ben Grunwald challenges this narrative. To assess the validity of the claim that officers resigned en masse after the 2020 protests, Grunwald collected data “on every job held by every officer in all 6,800 local law enforcement agencies across fifteen states that, together, cover half the U.S. population.” That database came to encompass over 972,000 officers between the mid-1990s and 2022, though for the study, he focused only on 2011–2021.
Grunwald found that “the increase in separations” among those agencies “after the summer of 2020 was smaller, later, less sudden, and possibly less pervasive than the retention-crisis narrative suggests.”
“Separations were nearly stable in 2020 compared to the year before,” he writes, while “in 2021, separations increased by historically large numbers but substantially less than the most widely reported figures for that period.” Specifically, separations in 2020 increased “by less than 1% compared to 2019” while they “rose far more in 2021, by 18% relative to 2019.” Grunwald notes that while this increase “was historically unusual, larger than any two-year period in the previous decade,” it is also much smaller than the 2021 PERF study suggested, and about one-third of it “can be explained by pre-existing trends that long predate the events of 2020.”
“All told, the cumulative effect on aggregate employment by the end of 2021 was just 1%,” Grunwald concludes. “This was not because of increased lateral mobility [officers transferring to another department or another role within law enforcement], as some have wondered. Rather, [the database] shows that the vast majority of excess separations in 2021 were by officers leaving the field, at least for a while.” He does acknowledge, though, that “a substantial minority of large departments [those with 500 or more officers] were meaningfully hit, losing over 5% of staff by the end of 2021.””
“Both sides in the case agreed that a former president can be prosecuted for “unofficial acts,” a point that Chief Justice John Roberts affirmed in his majority opinion. But Roberts added that a former president is “absolutely immune from criminal prosecution for conduct within his exclusive sphere of constitutional authority.”
It is not clear exactly which conduct falls into that “exclusive sphere,” although Roberts said conversations in which Trump urged the Justice Department to investigate his bogus claims of systematic election fraud clearly did. Adding to the uncertainty, the majority said even “official acts” outside “the core” of a president’s duties merit “at least a presumptive immunity from criminal prosecution,” which the government can overcome only if it “can show that applying a criminal prohibition to that act would pose no ‘dangers of intrusion on the authority and functions of the Executive Branch.'”
The strictness of that test, combined with the lack of clarity about which acts are “official,” suggests that the distinction between “absolute” and “presumptive” immunity is apt to dissolve in practice. And even if it proves meaningful, the Court said absolute immunity might ultimately be required for all conduct “within the outer perimeter” of a president’s “official responsibility.”
Under the majority’s reasoning, Justice Sonia Sotomayor warned in a dissent joined by Justices Elena Kagan and Ketanji Brown Jackson, a president “will be insulated from criminal prosecution” when he “uses his official powers in any way.” That shield, Sotomayor said, would extend to a president who “orders the Navy’s Seal Team 6 to assassinate a political rival,” who “organizes a military coup to hold onto power,” who “takes a bribe in exchange for a pardon,” or who insists that the Justice Department use fabricated evidence in a criminal case.
Instead of explaining why immunity would not apply in such situations, Roberts faulted Sotomayor for “fear mongering on the basis of extreme hypotheticals.” He dismissed the threat posed by lawless presidents because he was focused on the supposed need to protect “an energetic executive” from the threat of criminal liability.
As Sotomayor noted, however, presidents have been operating under that threat for a long time. “Every sitting President,” she wrote, “has so far believed himself under the threat of criminal liability after his term in office and nevertheless boldly fulfilled the duties of his office.”
Former President Richard Nixon, who did not suffer from a notable lack of executive energy, evidently shared that long-standing assumption. After he resigned amid the Watergate scandal, Nixon accepted a pardon from his successor, Gerald Ford, that covered any federal offenses he may have committed as president.
According to the proposed articles of impeachment, those offenses included many acts that would count as “official” in Roberts’ book, such as “false or misleading public statements,” misuse of the CIA and the IRS, and interference with an FBI investigation. If Nixon was immune from prosecution for those acts, his pardon is a bit of a puzzle.
As that episode illustrates, we need not conjure “extreme hypotheticals” to understand the danger of a president who feels unbound by the law. In the real world, the risk of presidential paralysis pales beside the risk of presidential impunity.”
“the Supreme Court’s decision centered around Joseph Fischer, a former Pennsylvania police officer who was charged with several offenses related to his conduct at the Capitol riot. According to the government, that lawlessness included, among other things, that he “forcibly assaulted a federal officer, entered and remained in a restricted building, and engaged in disorderly and disruptive conduct in the Capitol.”
But prosecutors tacked on another charge using the Sarbanes-Oxley Act of 2002, which criminalizes “alter[ing], destroy[ing], mutilat[ing], or conceal[ing] a record, document, or other object, or attempt[ing] to do so, with the intent to impair the object’s integrity or availability for use in an official proceeding,” or, per the following provision, “otherwise obstruct[ing], influenc[ing], or imped[ing] any official proceeding.” Those convicted face up to 20 years in prison.
Fischer challenged that charge, arguing that the statute as written requires the alleged obstruction in question be tied to the impairment of records, documents, or objects, which would not apply to him. The federal judge who initially evaluated Fischer’s petition sided with him; a divided U.S. Court of Appeals for the D.C. Circuit reversed that; and the Supreme Court reversed the reversal.”
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“”Our commitment to equal justice and the rule of law requires the courts to faithfully apply criminal laws as written, even in periods of national crisis,” she writes. “We recognize this intuitive fact—that there is a certain category of conduct the rule is designed to prohibit—because we recognize, albeit implicitly, that the drafters of this rule have included these particular examples for a reason. We understand that, given the preceding list of examples, this rule was adopted with a clear intent concerning its scope.”
To buttress her case, Jackson looks to the history of the statute, which was enacted in response to the revelation that Arthur Andersen LLP, auditor for the disgraced energy corporation Enron, had torched potentially incriminating documents. “There is no indication whatsoever that Congress intended to create a sweeping, all-purpose obstruction statute,” Jackson concludes.
In response, Attorney General Merrick Garland said in a statement that he is “disappointed by today’s decision, which limits an important federal statute that the Department has sought to use to ensure that those most responsible for that attack face appropriate consequences.” Fortunately for him, he is still free to prosecute people for violating the laws that Congress enacted, which isn’t an unfair limitation.”
“Democrats didn’t convict Trump; a jury of 12 ordinary Americans did. The Biden administration played no role in prosecuting the case; the indictment came from Manhattan District Attorney Alvin Bragg and was issued after federal prosecutors declined to go after Trump on similar charges.”
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“The current Republican party is so hostile to the foundations of the American political system that they can be counted on to attack the possibility of a fair Trump trial. Either Trump should be able to do whatever he wants with no accountability, or it’s proof that the entire edifice of American law and politics is rotten.”
“Broadly speaking, Chief Justice John Roberts’s majority opinion reaches three conclusions. The first is that when the president takes any action under the authority given to him by the Constitution itself, his authority is “conclusive and preclusive” and thus he cannot be prosecuted. Thus, for example, a president could not be prosecuted for pardoning someone, because the Constitution explicitly gives the chief executive the “Power to Grant Reprieves and Pardons for Offences against the United States.”
One question that has loomed over this case for months is whether presidential immunity is so broad that the president could order the military to assassinate a political rival. While this case was before a lower court, one judge asked if Trump could be prosecuted if he’d ordered “SEAL Team 6 to assassinate a political rival” and Trump’s lawyer answered that he could not unless Trump had previously been successfully impeached and convicted for doing so.
Roberts’s opinion in Trump, however, seems to go even further than Trump’s lawyer did. The Constitution, after all, states that the president “shall be commander in chief of the Army and Navy of the United States.” So, if presidential authority is “conclusive and preclusive” when presidents exercise their constitutionally granted powers, the Court appears to have ruled that yes, Trump could order the military to assassinate one of his political opponents. And nothing can be done to him for it.”
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“Roberts’s second conclusion is that presidents also enjoy “at least a presumptive immunity from criminal prosecution for a President’s acts within the outer perimeter of his official responsibility.” Thus, if a president’s action even touches on his official authority (the “outer perimeter” of that authority), then the president enjoys a strong presumption of immunity from prosecution.
This second form of immunity applies when the president uses authority that is not specifically mentioned in the Constitution, and it is quite broad — most likely extending even to mere conversations between the president and one of his subordinates.
The Court also says that this second form of immunity is exceptionally strong. As Roberts writes, “the President must therefore be immune from prosecution for an official act unless the Government can show that applying a criminal prohibition to that act would pose no ‘dangers of intrusion on the authority and functions of the Executive Branch.’”
Much of Roberts’s opinion, moreover, details just how broad this immunity will be in practice. Roberts claims, for example, that Trump is immune from prosecution for conversations between himself and high-ranking Justice Department officials, where he allegedly urged them to pressure states to “replace their legitimate electors” with fraudulent members of the Electoral College who would vote to install Trump for a second term.
Roberts writes that “the Executive Branch has ‘exclusive authority and absolute discretion’ to decide which crimes to investigate and prosecute,” and thus Trump’s conversations with Justice Department officials fall within his “conclusive and preclusive authority.” Following that logic, Trump could not have been charged with a crime if he had ordered the Justice Department to arrest every Democrat who holds elective office.
Elsewhere in his opinion, moreover, Roberts suggests that any conversation between Trump and one of his advisers or subordinates could not be the basis for a prosecution. In explaining why Trump’s attempts to pressure Vice President Mike Pence to “fraudulently alter the election results” likely cannot be prosecuted, for example, Roberts points to the fact that the vice president frequently serves “as one of the President’s closest advisers.”
Finally, Roberts does concede that the president may be prosecuted for “unofficial” acts. So, for example, if Trump had personally attempted to shoot and kill then-presidential candidate Joe Biden in the lead-up to the 2020 election, rather than ordering a subordinate to do so, then Trump could probably be prosecuted for murder.
But even this caveat to Roberts’s sweeping immunity decision is not very strong. Roberts writes that “in dividing official from unofficial conduct, courts may not inquire into the President’s motives.” And Roberts even limits the ability of prosecutors to pursue a president who accepts a bribe in return for committing an official act, such as pardoning a criminal who pays off the president. In Roberts’s words, a prosecutor may not “admit testimony or private records of the President or his advisers probing the official act itself.”
That means that, while the president can be prosecuted for an “unofficial” act, the prosecutors may not prove that he committed this crime using evidence drawn from the president’s “official” actions.
The practical implications of this ruling are astounding. As Justice Sonia Sotomayor writes in a dissenting opinion, “imagine a President states in an official speech that he intends to stop a political rival from passing legislation that he opposes, no matter what it takes to do so,” it follows from Roberts’s opinion that the ensuing murder indictment “could include no allegation of the President’s public admission of premeditated intent to support” the proposition that the president intended to commit murder.
Monday’s decision, in other words, ensures that, should Trump return to power, he will do so with hardly any legal checks. Under the Republican justices’ decision in Trump, a future president can almost certainly order the assassination of his rivals. He can wield the authority of the presidency to commit countless crimes. And he can order a subordinate to do virtually anything.