“a conviction was not inevitable. The legal issues were intricate and in some key respects novel, and some of them will credibly be at issue on appeal. The state’s evidence was voluminous but far from airtight, and there were weaknesses and gaps in the prosecution’s evidence as the case unfolded.
In fact, this was probably a winnable case — not in the form of an acquittal perhaps, but in the form of a hung jury that could have resulted by persuading one or more jurors that a case built around Michael Cohen — the former Trump lawyer/fixer turned convicted felon turned media personality — was simply not strong or reliable enough to warrant this watershed moment in American history. Trump also probably could have gotten off with convictions on misdemeanor counts of falsifying his company’s business records instead of felonies, but he never asked the judge to instruct the jurors on that point, perhaps fearing that the request might make him look weak — the worst offense of them all in his mind.
In life and in the law, hindsight is 20/20. In close political campaigns, analysts are often tempted to treat the eventual winner as the candidate that made the right decisions at the crucial points, and to treat the loser as having fumbled along. The same dynamic applies to legal proceedings too, so some caution is warranted. At some point, we may hear from some of the jurors themselves about what guided their decision, which would be a welcome addition to the historical record.
In the meantime, we are left to our own devices and to a tentative but unavoidable conclusion — that Trump and his lawyers bungled this trial.”
“The Supreme Court delivered a firm and unambiguous rebuke to some of America’s most reckless judges on Thursday, ruling those judges were wrong to declare an entire federal agency unconstitutional in a decision that threatened to trigger a second Great Depression.
In a sensible world, no judge would have taken the plaintiffs arguments in CFPB v. Community Financial Services Association seriously. Briefly, they claimed that the Constitution limits Congress’s ability to enact “perpetual funding,” meaning that the legislation funding a particular federal program does not sunset after a certain period of time.
The implications of this entirely made-up theory of the Constitution are breathtaking. As Justice Elena Kagan points out in a concurring opinion in the CFPB case, “spending that does not require periodic appropriations (whether annual or longer) accounted for nearly two-thirds of the federal budget” — and that includes popular programs like Social Security, Medicare, and Medicaid.
Nevertheless, a panel of three Trump judges on the United States Court of Appeals for the Fifth Circuit — a court dominated by reactionaries who often hand down decisions that offend even the current, very conservative Supreme Court — bought the CFPB plaintiffs’ novel theory and used it to declare the entire Consumer Financial Protection Bureau unconstitutional.
In fairness, the Fifth Circuit’s decision would not have invalidated Social Security or Medicare, but that’s because the Fifth Circuit made up some novel limits to contain its unprecedented interpretation of the Constitution. And the Fifth Circuit’s attack on the CFPB still would have had catastrophic consequences for the global economy had it actually been affirmed by the justices.
That’s because the CFPB doesn’t just regulate the banking industry. It also instructs banks on how they can comply with federal lending laws without risking legal sanction — establishing “safe harbor” practices that allow banks to avoid liability so long as they comply with them.
As a brief filed by the banking industry explains, without these safe harbors, the industry would not know how to lawfully issue loans — and if banks don’t know how to issue loans, the mortgage market could dry up overnight. Moreover, because home building, home sales, and other industries that depend on the mortgage market make up about 17 percent of the US economy, a decision invalidating the CFPB could trigger economic devastation unheard of since the Great Depression.
Thankfully, that won’t happen. Seven justices joined a majority opinion in CFPB which rejects the Fifth Circuit’s attack on the United States economy, and restates the longstanding rule governing congressional appropriations. Congress may enact any law funding a federal institution or program, so long as that law “authorizes expenditures from a specified source of public money for designated purposes.””
“Even this Supreme Court, with its 6-3 Republican-appointed supermajority, is unlikely to buy Trump’s argument that former presidents enjoy broad immunity from criminal prosecution. Trump’s lawyers have not even attempted to hide the implications of this argument. When the case was heard by a lower federal court, a judge asked Trump’s lawyer if the former president was immune from prosecution even if he’d ordered “SEAL Team 6 to assassinate a political rival.”
Trump’s lawyer responded that Trump was immune, unless he were first impeached and convicted by the Senate.”
…
“Trump’s goal is to delay his trial for as long as possible — ideally, from his perspective, until after this November’s election.
And in this respect, the Supreme Court has already given him what he wants. So long as this case is sitting before the justices, that trial cannot happen. And the justices have repeatedly refused special prosecutor Jack Smith’s requests to decide this immunity question on an expedited schedule that would ensure that Trump’s criminal trial can still happen before November.
This decision to put Trump’s appeal on the slow track is part of a much larger pattern in this Supreme Court:
The justices do not always need to rule in favor of a conservative party on the merits in order to achieve a conservative result. They can do so simply by manipulating their own calendar.”
“As far as consumer complaints go, of course, there’s nothing wrong with some of the DOJ’s concerns. We might wish that every product we owned was compatible with every other product we owned and that they worked in perfect tandem. We might wish we never had to consider tradeoffs between price, function, design, compatibility, etc.
Where this gets crazy is the federal government saying: Consumers being able to choose whether to use a product is not good enough. We’re going to step in and say that this business has to make a competitor’s products more accessible. It has a legal duty to undermine its own business interests to help outside—and many would argue inferior—products compete.
In the vein of other recent antitrust actions against tech companies, particularly under the Biden administration, the Apple suit relies on an absurd conception of how the law should work. And it’s a conception that could seriously harm innovation, weaken the position of U.S. tech companies, and mess with products many people like.
And many people really, really love Apple products, including iPhones.
The bottom line: Nobody has to use an iPhone, and no developer has to distribute its app through the App Store. There are other ways to communicate, other smartphone options, and other ways to distribute apps (including other ways to distribute apps to iPhone users). That many people still carry iPhones and distribute their apps through the App Store speaks to the fact that many people find the phone’s upsides and the App Store’s upsides stronger than any downsides.”
“If the court continues to deploy their methods of interpretation, Breyer told me, “We will have a Constitution that no one wants.” It’s a remarkable statement from a former Supreme Court justice.
The conflict between the left and right on the court is virtually impossible to bridge. Conservative justices broadly favor a theory of constitutional interpretation known as “originalism,” which purports to interpret the Constitution in accordance with the public meaning of the text when enacted, and a theory of statutory interpretation known as “textualism,” which prioritizes the text over considerations like congressional purpose and practical consequences when interpreting laws passed by Congress. Liberal justices like Breyer had long embraced theories that were flexible in nature — that allowed judges to account for a variety of inputs when answering hard legal questions.
For Breyer, the problem with conservatives’ approach goes beyond the desirability of specific outcomes in areas like abortion, affirmative action or executive power — areas in which the conservative majority has already significantly changed constitutional law. Breyer argues that the conservatives’ theories are inherently fraught, regressive and anti-democratic, and that they are just as prone to mischief and misuse as the more flexible and expansive theories that conservative judges reject.”