The guest on this week’s Al Franken podcast is Pulitzer Prize-winning reporter David Fahrenthold. He currently writes for the New York Times, though he won his Pulitzer cover Trump’s finances when working for the Washington Post. He talks with Al about, as Al writes, “the Trump Organization’s long history of corruption” and “puts the current trial into perspective.”
In today’s Good News/Bad News Report, a federal appeals court yesterday ruled that individuals and groups (like the NAACP) have no right to sue for protection under the Voting Rights Act.
The Good News is that this does not pertain to the entire Voting Rights Act, only to Section 2, which is the part that deals with the drawing of political maps and creating districts. By a vote of 2-to-1, the court ruled that only the U.S. Attorney General has the right to enforce Section 2.
The Bad News is that even though this decision was limited to just one section of the Voting Rights Act, it's probably the major section, and the ruing helps gut so much of the protections, undoing 60 years of precedent since the Act was passed in 1965.
The court deciding the case was the 8th Circuit Court of Appeals based in St. Louis. The one dissenting vote came from the Chief Judge Lavenski R. Smith. He wrote, “Rights so foundational to self-government and citizenship should not depend solely on the discretion or availability of the government’s agents for protection.”
In voting the overturn the decades-old precedent, the two Appeals Court judges in the majority relied on another missing passage, somewhat similar to an nagging issue in the 14th Amendment challenges where all government officers who swear an oath to defend the U.S. Constitution are subject to being prohibited from running for office if they’ve been involved in Insurrection, but different from everyone else taking such an oath, the president swears to “preserve and protect”.
For this case, the semantic issue is that other federal laws, like the 1964 Civil Rights Act, are explicit in stating when private groups can sue – however, for whatever reason, the same language doesn’t exist in the Voting Rights Act.
As a result, in their ruling, the majority wrote that “When those details are missing, it is not our place to fill in the gaps, except when ‘text and structure’ require it.”
My legal opinions, of course, have next to no judicial standing. (“Next to no” shall be read here as meaning “Zeo.”) But it would seem that, as long as the majority is focusing on missing details, another detail missing is the text stating that only the U.S. Attorney General can enforce the provision, and so filling in the details to give him that sole right appears to be doing precisely what the two-person majority are saying they can’t do -- especially when there is 60 years of precedent saying otherwise. And also when other federal laws, such as the companion 1964 Civil Rights Act say otherwise. While I certainly understand the point that these other federal laws did include the right of individuals and private groups to sue, and Section 2 of the Voting Rights Act doesn’t do so, that’s still not the same as the Voting Rights Act specifically stating that individuals and private groups don’t have the same right. The point being, again, that the majority is making it their place “to fill in the gaps.” They’ve just chosen the gaps they want to fill in.
By way of fact worth noting, this majority opinion was written by Judge David R. Stras who was nominated for the Appeals Court by (okay, are you sitting down…?) Trump, something which I’m sure will stun and flabbergast people, though mostly only those who are easily flabbergasted and stunned. Interestingly, though, the other two judges on the Appeals Court (including the Chief Judge who dissented) were both nominated by then-President George W. Bush.
It seems likely that there will be an appeal to the Supreme Court, though at the moment no private group has announced their attention. The ACLU did say they were exploring their options. No word yet from the NAACP.
Surprisingly, two conservative Justices on the Supreme Court – Neal Gorsuch and Clarence Thomas -- have made statements in the past that supported private groups retaining the right to sue on Section 2. On the other hand, both men previously voted to strip down the Voting Rights Act in an earlier case. So, expecting this Court to protect voting rights is not one that seems wise to rely on.
One can hope, though. After all, voting rights is one of those things that, especially these days, seems kind of, yknow, somewhat incredibly important.
Last week, I wrote here about how the Trump brothers seem to miss the point that the only person who matters in the courtroom is not the prosecutor they were arguing with, but the judge who is going to decide what penalty their company will have to pay.
It appears that their dad is inflicted with the exact same myopia. Except – being Trump – he’s ratcheted it up several notches.
For one thing, he’s not so much arguing with the prosecutor but with the judge himself. (I was going to say “for inexplicable reasons,” but realized it’s not inexplicable, it’s Trump. It’s so on-brand.) The very man who is going to decide how large the penalty is the man Trump is actually attacking. You explain the sanity of that. And it’s even worse than that, since that man, the judge, has not only already ruled that the Trump Company did commit fraud (which is why this part of the trial is only about how much the penalty should be, not if there should be one) – but he has also already ruled, when deciding on a gag order that Trump was not a credible witness. And Trump is attacking him before the judge has made his decision. Clearly not understanding or perhaps able to process that the judge is The Only Person Who Matters in the courtroom.
The other way Trump has ratcheted up his lack of understanding that it’s the judge who matters, that there’s no jury to win over with his self-perceived charm and importance, but rather a judge who has tried similar cases for years and actually understands the law is Trump’s willingness to incriminate himself on the stand, rather than try to blame others, as is his usual Standard Operating Procedure, and which the Brothers Trump at least tried.
And so, there is Trump admitting under oath that the Trump Company financial statements were prepared to “influence” banks – financial statements that the judge has already ruled were fraudulent and a crime!
And there is Trump answering, when asked who at the company was responsible for preventing fraud, not that it was the fault of outside attorneys but rather “Everybody” at the company. Never mind that the judge has already ruled that fraud wasn’t prevented and intentionally committed, which is a crime.
And there, too, is Trump bragging to the prosecutor that his net worth was actually much bigger than was on the financial statements, insisting “Therefore, you have no case” – never mind that when financial information is intentionally misrepresented, whether exaggerated or under-reported…it is fraud and a crime.
Fun Fact: If you under-report your finances on your taxes to play less, it is a crime. No, really! It turns out, though, that Trump doesn’t grasp this fact, perhaps because lying on his taxes was second nature to him and therefore allowed.
And maybe the most important thing related to all these admissions: with Trump admitting under oath to all these frauds he committed, confirming what the judge has already ruled about the Trump Company committing fraud – Trump himself has pretty much effectively removed any defense his lawyers have in appealing that the judge unfairly ruled that the Trump Company committed fraud.
It’s so hard to rule that the judge was wrong in ruling that you committed fraud when you admitted under oath to committing fraud – three times!
And further still, there was Trump figuring no doubt that he was being oh-so clever ranting and raving and attacking the judge all to deflect and avoid answering the questions asked to him by the prosecutor, as the judge kept admonishing him to answer the questions – at one point even telling Trump that you can attack me and say anything you want, but answer the questions – never remembering that this trial is in civil court where a refusal to answer a question can be taken with an “adverse inference” (to assume the worst) by those deciding the case. Which here is…say it all together: the judge.
And still, there was Trump, attacking the judge when on the stand. Which explains why the prosecution was just fine letting him go rambling on.
And no doubt, he will keep attacking the judge in public, as he rambles on. As the trial continues and the judge determines the penalty the Trump company will have to pay for the fraud crime the judge has ruled was already committed. Which Trump confirmed under oath. Three times.
After watching and reading news accounts of Don Jr. and Eric Trump testifying in court, I had an observation. It may have nothing to do with reality, though I suspect it at the very least has a passing acquaintance with it.
The problem became apparent with Eric yelling at a prosecutor for having the gall to ask what was a basic question that he felt was obvious and thereby was insulting to have been asked. Never mind that this wasn’t a personal conversation, but testimony in court where often things are required to be asked in order to get them on the record.
But it was apparent throughout his testimony and his brother’s, as well. Denying things that were then presented to them as evidentiary proof of what they were denying. Passing blame on everyone else for everything. Getting testy with the prosecutor. Refusing to accept that facts (such as the size of the Trump apartment) had been presented incorrectly (three times the reality) and were therefore at best innocent mistakes that wildly inflated valuation – and at worst, intentional fraud.
What struck me is the sense that the Trump brothers live in a certain bubble. It’s a world where what they say – whatever they say – is accepted by employees at the Trump Organization and the vendors who do business with the company and by those who want to be in their social circle and by total strangers for whom they owe no responsibility and more. And if it’s not accepted, it doesn’t matter since anyone who doesn’t accept their words, accept their entitlement doesn’t matter to them. Such people are only out to get them. It’s political, a witch hunt, jealousy, a nothingburger. They can say what they want and get away with it, because they have their whole life.
The problem is – they’re in court. Testifying under oath. And I don’t get the sense that they quite realize it. The prosecutor asking him that question Eric thought was so insultingly stupid – to the brothers he’s a fool and someone you can yell at and tell off. Not recognizing that the prosecutor doesn’t matter – in fact the prosecutor probably loved being yelled at, so the judge could see that – because it’s the judge who is only person who matters. The judge is the person who is going to decide how much the Trump Organization is going to have to pay. The judge is who already has ruled that the Trump Organization committed fraud. The judge is who already has ruled that the sons’ father, their personal Zeus upon Mount Trump, was not a credible witness. The judge is who had the power and used it to impose a gag order on him.
Yet there they are, the petulant, entitled Trump sons yelling at prosecutors, denying physical evidence, blaming others for actions they were in charge of, ignoring reality, ignoring that there’s actual video of their sworn depositions – because that’s what they do in normal conversations of everyday life – and appear to be blissfully ignorant of the fact that when they swore to tell the truth, that actually had legal meaning, and have blocked out that there is an actual judge judging everything they say and everything they do and how they do it and how they say it in order to help him make his judgement, because that’s what judges do.
I know it’s hard to miss the judge when you’re testifying in court – after all, he’s sitting right next to you at your elbow when you’re in the witness stand. But living inside a vacuum-sealed bubble and having Mr. Magoo myopia can screw up one’s awareness of the real world that exists just outside your protective, invisible defense shield -- most especially when you are the entirety of your world.
A world which, in turn, is nothing more than a small, circling orbit of their father’s soul-sucking universe.
Imagine for a moment that you own a property which you know -- absolutely know, without question -- was worth, let's say, $10 million when you bought it. And the reason that you know with total certainty it’s worth $10 million is because, like pretty much everyone in the world, before buying it you checked similar property in the neighborhood and nearby before making an offer, in order to get the best deal and a fair price.
So, you know the property is worth $10 million.
You know it.
But then, after having bought it for the price you know was proper -- because you carefully checked first and did due diligence and compared prices -- one day your realtor said, no, the property you bought for $10 million was actually worth $60 million!
Needless-to-say, you'd be thrilled, though admittedly surprised, and even probably at least just a little bit concerned, too, for such a substantial difference, but still you nonetheless relied on that new information -- without checking anything. Without finding out if other similar property nearby had also increased in value so massively, perhaps worth even more than yours, or maybe less. Without double-checking even though this meant your property taxes would be skyrocketing through the roof. You just totally relied on the word of the experts, because that’s why you hired them, after all what do you know?, they’re the experts, and you’re not, you just pay for the property, so why would you check out any of that, however much the real estate world had drastically changed surrounding your neighborhood and however much more you now would hugely owe in taxes?
But now imagine, too, that – on top of all this highly-surprising news, discovering your $10 million real estate property was really, all of a sudden, worth $60 million now -- it turns out that your actual job is, in fact, in real estate, and your brother and sister’s job is also in real estate, and your father’s job is in real estate, and your grandfather’s job was in real estate, and your great-grandfather’s job was in real estate, and indeed your family has been in real estate for 132 years, and the real estate company your family owns for which you are Executive Vice-President has been in existence for 96 years, and your specific job is overseeing the buying and construction and leasing of skyscrapers and golf resorts and multi-hundred million dollar properties around the world – though, as it happens, you don’t personally consider yourself an expert in real estate and instead always rely out of total, blind, unquestioning ignorance in your real estate profession on the advice of others for their skill to make your real estate valuation decisions for you. And so, if they – who are actual experts, after all – tell you that your property is suddenly worth six times what you knew it was worth, that’s perfectly fine with you because you’re not an expert in your family’s business of 132 years, just the Executive Vice-President, so where is the paper to sign?, because they’re experts in your field, and you know nothing, so why ask anyone else? Like your brother, or sister, or father? Or the accountants? Or at least look it up on Zillow?
And now...imagine that you’re telling this under oath to a judge who only the week before ruled that your father, the former president of the United States and most powerful man in the world and head of your company – a company the judge has already ruled committed fraud -- was “not credible.”
(Today's Reminder: This trial is not to determine guilt or innocence. Guilt has already been determined. This is the penalty phase -- and only the penalty phase -- to decide how much money the company owes. So, trying to shift blame others for the fraud you've been found guilty of not only has no meaning, but risks seriously backfiring.)
Still, that’s the plan you’re going into court with. Under oath. That you knew nothing. And as Executive Vice-President relied entirely without questioning on others, because they were experts, not you. And you knew…well, y’know, nothing.
Robert J. Elisberg is a political commentator, screenwriter, novelist, tech writer and also some other things that I just tend to keep forgetting.
Feedspot Badge of Honor