appeals Court

Appeals Court Weighs Whether to Permit Inquiry Into Flynn Case Dismissal – The New York Times

Politics|Appeals Court Weighs Whether to Permit Inquiry Into Flynn Case Dismissal

A majority of the judges on a federal appeals court signaled that they may allow a court hearing into the Justice Department’s decision to drop the case.

Credit…Brendan Smialowski/Agence France-Presse — Getty Images

Charlie Savage

WASHINGTON — A Justice Department lawyer urged an appeals court on Tuesday to block a judge from scrutinizing its decision to drop the prosecution of President Trump’s former national security adviser Michael T. Flynn, arguing that the “spectacle” of examining its motives in a public hearing would damage the executive branch.

But a lawyer for the judge overseeing the case, Emmet G. Sullivan, appeared to walk back expectations that he would engage in a searching inquiry about what lay behind the decision to drop the charge against Mr. Flynn, suggesting that he did not have a basis to conduct extensive fact-finding and that he might limit a hearing to mainly discussing legal issues.

Those were two takeaways from nearly four hours of oral arguments before the full Court of Appeals for the District of Columbia Circuit. It was the latest chapter in a twisting legal and political saga over the case against Mr. Flynn, who has twice pleaded guilty to lying to the F.B.I. about his conversations with a Russian ambassador in December 2016.

In May, the department moved to drop the case. Its stated rationale has shifted across several filings, but centers on the idea that Mr. Flynn’s lies were not material to any legitimate investigation and that the F.B.I.’s aggression in questioning him might give a jury a reason to acquit him. That stance dovetails with Attorney General William P. Barr’s disdain for the Trump-Russia inquiry.

The case has since been consumed in a legal fight over whether Judge Sullivan had no choice but to dismiss it since the Justice Department no longer wants to pursue it, or whether the federal rules of criminal procedure empower him to scrutinize whether Mr. Barr sought to drop it for illegitimate reasons and — if Judge Sullivan were to decide that was the case — whether he could instead sentence Mr. Flynn anyway.

Judge Sullivan appointed John Gleeson, a retired federal judge who had criticized Mr. Barr’s move in a Washington Post opinion column, to provide arguments critiquing it. Mr. Gleeson filed a scathing brief contending that prosecutors’ stated rationale made no sense and must be cover for a corrupt and politically motivated decision. The department has denied that accusation.

Judge Sullivan had scheduled a hearing to discuss the issue when the process was derailed by a surprise decision by a three-judge panel on the appeals court in June. It voted 2 to 1 to grant a request by Mr. Flynn’s lawyer, Sidney Powell, that the appeals court immediately order Judge Sullivan to dismiss the case without review.

But the two judges in the majority on that panel — Neomi Rao and Karen L. Henderson — have shown more willingness than their colleagues to interpret the law in Mr. Trump’s favor. Last month, the full court voted to erase the panel decision and rehear the issue, an intervention that suggests it is likely to let Judge Sullivan hold the hearing after all.

Questions from the judges on Tuesday further bolstered the impression that a majority of them on the full court appear likely to reject Ms. Powell’s request. But even so, it was less clear that letting the process play out would force the Justice Department to divulge significant new information about what led to Mr. Barr’s decision.

Judge Sullivan’s lawyer, Beth Wilkinson, has argued that he has the authority to explore whether the proposed dismissal served “due and legitimate prosecutorial interests” or was instead contrary to the public interest, suggesting that he needed to examine “the facts and circumstances.” The Trump administration has reacted with alarm to the notion of an intrusive factual inquiry requiring it to show what went into Mr. Barr’s move to dismiss the charge beyond the rationale it has cited in public filings.

On Tuesday, Jeff Wall, the acting solicitor general, urged the court to again order the case dismissed immediately. But even if the court instead lets the judge proceed, Mr. Wall said, it should instruct him not to pry into what was behind the statements the Justice Department made in its court filings because, he argued, the constitutional system of separation of powers is “meant to guard against oversight and scrutiny of this core executive discretion.”

But while also arguing that the Justice Department did not have to explain its thinking, Mr. Wall suggested that Mr. Barr might have had a secret reason for dismissing the case.

“The attorney general, of course, sees this in a context of nonpublic information from other investigations,” he said, adding: “It may be possible that the attorney general had before him information that he was not able to share with the court. And so what we put in front of the court were the reasons we could, but may not be the whole picture available to the executive branch.”

On behalf of Judge Sullivan, Ms. Wilkinson argued against imposing any restrictions or instructions on what kind of questions he could ask at the hearing, assuming he is allowed to hold one. Among other things, she noted that because the written briefs are not complete, it is not clear what all the issues are.

But she also repeatedly emphasized that to date he has not ordered any steps that would require the submission of internal Justice Department documents or sworn declarations. And she noted that if he asked about internal deliberations at the hearing and Justice Department lawyers declined to answer, he might choose not to pursue the matter.

Ms. Wilkinson also argued that orders like the one Ms. Powell has requested — a so-called writ of mandamus — are supposed to be for extraordinary situations in which there is no other remedy. Here, if the normal process plays out, Judge Sullivan might decide to dismiss the case, she noted — or, if he decides not to do so, that ruling could then be appealed.

Ms. Powell argued, as she has before, that Judge Sullivan has no authority to second-guess the Justice Department’s decision to drop the case, and that it was improper for him to appoint Mr. Gleeson and schedule a hearing rather than immediately ending the matter. She also accused him of displaying bias against her client.

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appeals Court

Full D.C. Appeals Court Agrees To Take Up Michael Flynn Legal Case – NPR

Former national security adviser Michael Flynn’s legal odyssey continues after the full U.S. Court of Appeals for the District of Columbia Circuit agreed to hear oral arguments in the case next month.

Manuel Balce Ceneta/AP

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Manuel Balce Ceneta/AP

Former national security adviser Michael Flynn’s legal odyssey continues after the full U.S. Court of Appeals for the District of Columbia Circuit agreed to hear oral arguments in the case next month.

Manuel Balce Ceneta/AP

The full U.S. Court of Appeals for the District of Columbia Circuit says it has scheduled oral arguments in the case of former national security adviser Michael Flynn on Aug. 11.

A smaller panel of judges within the D.C. Circuit ruled earlier that a lower-court judge must terminate the case against Flynn, as requested both by his attorneys and — in an unusual wrinkle — the Justice Department.

That lower-court judge, U.S. District Judge Emmet Sullivan, said he wanted to probe the reasons for the government’s move, but the smaller appellate panel ordered him to stop that work and simply end the matter.

Sullivan asked for the full appeals court to consider the case, and it agreed on Thursday.

Next installment in long saga

Flynn’s legal odyssey has been churning for years — he pleaded guilty to lying to the FBI about his conversations with Russia’s then-ambassador to the United States in the waning days of President Barack Obama’s administration. Flynn then became what the government called a model cooperator in the Russia investigation.

That relationship soured, however, after Flynn replaced his legal team.

Flynn’s attorneys began to press for the revelation of more material they called pertinent to his case and sought to withdraw his initial guilty plea. In their eyes and those of supporters, the actions of the FBI and Justice Department were improper.

In the meantime, William Barr became attorney general and amid broad Republican political antipathy toward the legacy of the Russia investigation, took a sympathetic view of Flynn’s case.

So Barr and the Justice Department told Sullivan they wanted to abandon the prosecution of Flynn even after his admission of guilt, prompting the judge to initiate an investigatory and advisory process aimed at learning how the government had reached that decision.

A former judge appointed by Sullivan to give him an assessment about the government’s position called it an abuse of power by an attorney general obviously acting favorably toward a friend of the president.

Barr, meanwhile, defended his handling of the Flynn matter then and now, including at a hearing this week before the House Judiciary Committee.

The full D.C. appeals court likely will assess whether Sullivan can go ahead with the consideration and investigation of the government’s change of heart; the smaller panel of judges ruled that he had overstepped himself and violated the privilege of the executive branch to reach decisions about prosecutions confidentially.

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Court Orders

Court orders Michael Cohen’s release – POLITICO

A lawyer for the U.S. Attorney’s Office in Manhattan insisted that the conditions presented to Cohen earlier this month were not aimed at quashing publication of his book. Assistant U.S. Attorney Allison Rovner said the probation officer who presented Cohen with the list of limits received the language from a colleague in May and was not even aware that Cohen was planning a book.

“With all respect, your honor, it is actually impossible to draw the inference that you’re suggesting,” Rovner said.

But the judge made clear from the outset of Thursday’s court session that he was highly dubious of the government’s position. He said logic dictated that the provision about media contact was aimed at silencing Cohen and that ordering him rejailed because he didn’t want to sign also amounted to retaliation.

Officials have denied any political motive in the handling of Cohen’s release or reimprisonment. However, in a court filing Wednesday, one prison system official said Bureau of Prisons Deputy Director Gene Beasley was consulted and concurred before Cohen was ordered back into custody two weeks ago. Government lawyers did not submit a declaration from Beasley indicating whether he discussed the matter with the BOP director or officials at Justice Department headquarters.

Hellerstein also said the authorities handling Cohen appeared to have overreacted to efforts by one of his attorneys to negotiate the terms of his release.

Probation officer Adam Pakula submitted a declaration that called Cohen “combative” and “argumentative” during the back-and-forth about the conditions, but Hellerstein said it seemed odd to penalize Cohen simply for objecting.

“Why could not something like that be a subject of negotiation with an attorney? What’s an attorney for if he’s not going to negotiate an agreement for his client?” Hellerstein asked. “That’s a common thing. If you want to call it discussion, negotiation, you can call it that. I can’t see there’s a fair inference made because an attorney is negotiating, there’s an exhibit of intransigence on the part of the defendant.”

Hellerstein also complained that after the discussion about the conditions, Cohen was told to wait and then simply taken into custody without any further exchange. Cohen has maintained that while he objected to several aspects of the proposed agreement, he would have signed it if he had known the alternative was to be sent back to prison.

“Mr. Cohen was never given a chance to say, ‘If this is it, I will sign,'” the judge said.

Rovner said the Bureau of Prisons wasn’t obliged to do anything more.

“I think he was not then given a chance to sign, but he had already refused,” Rovner said. “I don’t think that BOP is necessarily required to give him a chance to negotiate.”

At one point during Thursday’s session, Hellerstein grew prickly as second prosecutor — Thomas McKay — attempted to interject with what he called a “factual matter” related to the dispute.

“Is Ms. Rovner not capable of answering my question?” the judge snapped. “You keep quiet. If Ms. Rovner wants to consult you, she may. … One person speaks on a side.”

While clearly siding with Cohen, the judge did signal that he thought some limits on the former Trump lawyer’s media activities were reasonable, noting that he remained a prisoner even if serving his sentence at home.

However, it was unclear whether the judge fully appreciated how broadly someone can engage with the press and the public from home via the use of modern technology.

“Could he turn his home into a television studio?” the judge asked skeptically. “Just as you wouldn’t have a press conference from a jail cell, you shouldn’t be allowed to have a press conference. You can communicate. You can discuss. You can post on social media. All sorts of thing. …You can’t make a person confined to jail at home into a total free person. There’s got to be a limit.”

During the hearing, Cohen attorney Danya Perry initially resisted any limits on Cohen’s speech, arguing that they did not serve “any legitimate penological purpose.” However, she later said she was willing to negotiate with prison officials on terms to cover Cohen’s conduct while confined at home.

“He wants to be able to publish and edit his book,” said Perry. “Mr. Cohen will be happy to work with them. … I don’t know what the Bureau of Prisons is looking to do.”

The language Cohen was initially asked to agree to said the limits on his speech and contact with the media were intended to “avoid glamorizing or bringing publicity to [his] status as a sentenced inmate serving a custodial term in the community.”

In 2018, Cohen was sentenced to three years in prison after pleading guilty to a series of charges, including tax evasion, campaign finance violations related to payments during the 2016 campaign to women claiming sexual relationships with Trump, and lying to a Senate committee about the state of discussions during the same campaign about a Trump Tower Moscow project.

Some lawyers said Trump seemed to be implicated in the campaign finance charges and the charge of lying to Congress, but no charge was ever brought against him.

Justice Department policy bars charging a sitting president. Special counsel Robert Mueller’s team declined to opine on whether Trump had or had not broken the law, but Attorney General William Barr announced that the evidence did not support any such charge.

Trump has accused Cohen of fabricating stories in order to try to curry favor with prosecutors.

Cohen was sent home in May after serving about half of his sentence.

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Court Supreme

Supreme Court denies Democrats’ bid to fast-track ongoing fight for Trump financial records | TheHill – The Hill

The Supreme Court on Monday denied a request by House Democrats to accelerate the timeline of remaining court battles over congressional subpoenas for President TrumpDonald John TrumpKanye West says Harriet Tubman ‘never actually freed the slaves’ at rally Trump-Afghan deal passes key deadline, but peace elusive GOP governors in hardest hit states split over COVID-19 response MORE’s tax returns.

The bid by lawmakers came in response to the court’s landmark 7-2 ruling earlier this month to shield a trove of Trump’s financial records from several Democratic-led House committees and return the dispute to lower courts for further litigation.

Under regular Supreme Court procedure, the ruling would reach the lower courts no earlier than Aug. 3, a delay Democrats sought to avoid by asking the justices to expedite the process.

But the conservative-majority court rejected that request Monday in an unsigned order. Justice Sonia SotomayorSonia SotomayorSupreme Court declines to reinstate vote of nearly 1 million Florida felons Supreme Court clears way for second federal execution Supreme Court lifts stay for second federal execution this week MORE, one of the more liberal justices, said she would have granted it.

Earlier this month, the Supreme Court issued a blockbuster split decision that handed a win to New York state prosecutors seeking Trump’s tax returns, but dealt a setback to Democrats who sought a similar financial paper trail.

While the justices settled some of the major legal issues embedded in the disputes, they left it to lower courts to resolve other unanswered questions.

On Friday, the Supreme Court agreed to expedite its order in the New York case, where the justices had ruled 7-2 against Trump’s claim of absolute immunity from a grand jury subpoena for eight years of tax returns. Chief Justice John Roberts ordered the decision to go into effect immediately, which allows the Manhattan district attorney to advance more swiftly in pursuit of Trump’s records.

But Monday’s order means a trio of Democratic-led House committees will have to wait nearly a month from the date of the court’s decision before they can proceed in the lower courts.

The committees have long maintained that four congressional subpoenas issued to Trump’s bankers and accountants for his personal and corporate records were necessary to carry out their legislative and oversight functions.

Before the case reached the Supreme Court, lawmakers had prevailed in every round of battle in federal district and appeals courts.

But the justices’ July 9 decision in Trump v. Mazars USA found that the lower courts had failed to properly consider the weighty separation of powers concerns at hand.

“When Congress seeks information needed for intelligent legislative action, it unquestionably remains the duty of all citizens to cooperate,” Roberts wrote for the majority on July 9, citing prior Supreme Court rulings. “Congressional subpoenas for information from the President, however, implicate special concerns regarding the separation of powers. The courts below did not take adequate account of those concerns.”

While the decision reaffirmed Congress’s subpoena power, it also enumerated some of its constraints when information at issue concerns the president. Specifically, the court laid out parameters for the appropriate scope and relevance of such subpoenas.

The committees may now continue to press their case in the lower federal courts of Washington, D.C., and New York, but only after the Supreme Court decision takes effect early next month.

The House Oversight and Reform Committee claims its subpoena of Trump’s accounting firm, Mazars USA, is needed to inform rules governing ethics, conflicts of interest and presidential financial disclosure.

Another set of subpoenas, from the House Financial Services Committee, requested records from Deutsche Bank and Capital One as a follow-up on press reports that Deutsche Bank staffers had raised concerns that Trump and his son-in-law, White House senior adviser Jared KushnerJared Corey KushnerGraham releases newly declassified documents on Russia probe CREW files ethics complaint against Ivanka Trump over Goya photo The Memo: Can new campaign manager help Trump? MORE, were linked to illicit financial activity.

The House Intelligence Committee also subpoenaed Deutsche Bank, but its focus was on Kremlin efforts to interfere in U.S. elections and whether Russian or other foreign nationals have financial leverage over Trump.

Updated at 11:46 a.m.

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Court Supreme

Supreme Court says Trump can weaken Obamacare contraceptive mandate – CNN

(CNN)The Supreme Court on Wednesday cleared the way for the Trump administration to expand exemptions for employers who have religious or moral objections to complying with the Affordable Care Act’s contraceptive mandate.

The 7-2 ruling reverses a lower court decision that had blocked Trump’s move nationwide.
The ruling is a win for President Donald Trump, who has vowed to act aggressively to protect what he and other conservatives frame as religious liberty, as well as for the Little Sisters of the Poor, a Roman Catholic religious order for women who, along with the Trump administration, asked the court to step in.
It came the same day the court also sided with religious schools in a different case, ruling that teachers at religious institutions aren’t covered by employment discrimination laws.
The White House called it a “big win for religious freedom and freedom of conscience” in a statement from press secretary Kayleigh McEnany.
Trump had complained in recent weeks when the court ruled against him on issues such as abortion, LGBTQ rights and the Obama-era Deferred Action for Childhood Arrivals program. After Chief Justice John Roberts sided with liberals in significant cases in recent weeks, he joined the conservative majority in Wednesday’s two cases.
The Little Sisters case required the justices to balance concerns for women’s health care against claims of religious liberty. The law requires that employer-provided health insurance plans cover birth control as a preventive service at no cost. Wednesday’s ruling means that by the government’s own estimate, thousands of women will have to search elsewhere for coverage.
Justice Clarence Thomas, who wrote the majority opinion, wrote that the justices held that the government “had the statutory authority to craft that exemption, as well as the contemporaneously issued moral exemption.” He was joined in full by Roberts and Justices Samuel Alito, Neil Gorsuch and Brett Kavanaugh.
Thomas commended the Little Sisters of the Poor for their efforts.
“For the past seven years, they — like many other religious objectors who have participated in the litigation and rulemakings leading up to today’s decision — have had to fight for the ability to continue in their noble work without violating their sincerely held religious beliefs,” he wrote.
Thomas continued, “After two decisions from this Court and multiple failed regulatory attempts, the Federal Government has arrived at a solution that exempts the Little Sisters from the source of their complicity-based concerns — the administratively imposed contraceptive mandate.”
Liberal justices Stephen Breyer and Elena Kagan agreed with the court’s judgment but under different rationale. They said that the Trump administration had the authority to issue a rule expanding exemptions from the contraceptive mandate, but suggested that a lower court might still find that the government’s rule was “arbitrary and capricious.”
“That issue remains open for the lower courts to address,” Breyer wrote, opening up the possibility of future challenges — though the rules can go into effect for now.
Justice Ruth Bader Ginsburg dissented from the Court’s opinion, joined by Justice Sonia Sotomayor.
“Today, for the first time, the Court casts totally aside countervailing rights and interests in its zeal to secure religious rights to the nth degree,” Ginsburg wrote.
“This Court leaves women workers to fend for themselves, to seek contraceptive coverage from sources other than their employer’s insurer, and, absent another available source of funding, to pay for contraceptive services out of their own pockets,” she said and noted that the government had acknowledged that the rules would cause thousands of women — “between 70,500 and 126,400 women of childbearing age,” she wrote — to lose coverage.
The dispute — the latest concerning the Affordable Care Act to come before the justices — pit supporters of the contraceptive provision against those who said it violated their religious and moral beliefs.
Churches and some other religious entities could get an exemption and others such as religious universities, hospitals or charities with religious objections get an accommodation. The accommodation means that plan participants could still receive the coverage, but it would be paid for by the insurer or employer’s health insurance administrator.
Over 61.4 million women in the US have birth control coverage with zero out-of-pocket costs, according the National Women’s Law Center.
After Trump took office, the government moved in 2017 to allow exemptions for more employers.
Under the religious exception rule, any private employer, including publicly traded corporations, could receive exemptions based on a “sincerely held religious belief.” A second rule extends the same provision to organizations and small businesses that have objections “on the basis of moral conviction which is not based in any particular religious belief.”
By the government’s own estimate, between 75,000 to 125,000 women would lose coverage. At oral arguments held over the phone because of the coronavirus, Justice Ruth Bader Ginsburg — participating from a hospital bed because of a gall bladder condition — lambasted the government’s position, arguing it would leave women “to hunt for other government programs that might cover them.”
Pennsylvania and other states challenged the federal government move in court, arguing in part that they would have to step in and provide coverage for women seeking coverage.
A federal appeals court blocked the rules nationwide, holding that the states would suffer irreparable harm and “unredressable financial consequences” from subsidizing contraceptive services and “providing funds for medical care associated with unintended pregnancies.” The court said that the states’ financial injury “outweighs any purported injury to religious exercise.”
The Trump administration and the Little Sisters of the Poor asked the Supreme Court to reverse the lower court.
Solicitor General Noel Francisco had argued that the accommodation still made some entities feel complicit in providing contraceptive coverage to their employees. The Religious Freedom Restoration Act, designed to prohibit the federal government from “substantially burdening” a person’s exercise of religion, gives agencies discretion to offer an exemption, he said.
But Pennsylvania Attorney General Josh Shapiro, joined by New Jersey’s attorney general, told the Supreme Court that the lower court got it right. He pointed out that an accommodation is already in place that allows certain objecting employers to exclude contraception for the benefit packages and allowing third parties to provide the coverage directly.
“This approach,” Shapiro said, “balances the employers’ sincere religious belief with the health of their female employees.”
He said that such a balance was “disrupted” when the Trump administration moved to allow more people, including publicly traded corporations and large universities, to receive an exemption.
“The existing accommodation respects both the health of women and the religious liberty interests of employers,” he argued.
Shapiro lamented the court’s decision Wednesday, but vowed to continue fighting the administration’s rule in the lower courts.
“While I am disappointed with much of the majority opinion, I am pleased the Court allowed our challenge to the Administration’s overly broad rules to proceed,” he said. “We now return to the lower courts to address whether the exemptions are arbitrary and capricious. This fight is not over.”
Shapiro added that the challenge brought by Pennsylvania and other states against the rule “was never about requiring religious groups to provide contraception — organizations like the Little Sisters are already exempt. Our case is about an overly broad rule that allows the personal beliefs of CEOs to dictate womens’ guaranteed access to contraceptive medicine.”
Twenty states and the District of Columbia supported the states, as well as House Speaker Nancy Pelosi and 185 other members of Congress.
Texas and 19 other states, meanwhile, supported the Trump administration and the Little Sisters, arguing that some employers “believe sincerely that it is incompatible with their religious convictions to provide health insurance when it means contracting with a company that then, because of that relationship, becomes obligated to provide contraceptives that the employers regard as abortifacients.”
The lawyers who brought the challenge indicated they also plan to carry on fighting.
“America deserves better than petty governments harassing nuns. The Court did the right thing by protecting the Little Sisters from an unnecessary mandate that would have gutted their ministry,” said Mark Rienzi, a lawyer behind the challenge and the president of Becket, a law firm that specializes in religious liberty issues.
“Governments don’t need nuns to distribute contraceptives. But they do need religious groups to care for the elderly, heal the sick and feed the hungry,” Rienzi said. “These governments all have real work they ought to be doing rather than dividing people with old and unnecessary culture wars.”
This story has been updated with additional details from the ruling, as well as reaction to it.

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Court sides

Court sides with publisher of tell-all book by Trump’s niece – CNN

(CNN Business)A version of this article first appeared in the “Reliable Sources” newsletter. You can sign up for free right here.

Bad news for President Trump and his younger brother, Robert Trump, who has been trying to block an unflattering tell all book by the President’s niece, Mary Trump, that Simon & Schuster is set to publish in July.
On Wednesday evening, a New York appellate court lifted the temporary restraining order against Simon & Schuster, a decision that allows the publisher to move forward with printing copies of the book and shipping them to retailers. The court left the temporary restraining order in place for Mary Trump until a hearing on July 10.
Make no mistake: This is a blow to Robert Trump’s attempt to block the book. Simon & Schuster had already said that it had printed 75,000 copies of the book and shipped copies to booksellers. By July 10’s hearing, the publisher will be further along in its preparation for publishing the book on its scheduled release date of July 28. In other words, the horse will be that much closer to being out of the barn.
The appellate court also noted that “while parties are free to enter into confidentiality agreements, courts are not necessarily obligated to specifically enforce them” and said that such agreements are “alternatively enforceable through the impassion of money damages.” The suggestion that money damages might be a way to resolve the legal dispute, instead of an injunction, also doesn’t appear to bode well for Robert Trump’s case…

“We are gratified”

In a statement, Simon & Schuster celebrated the court’s decision. “We are gratified with the Appellate Court’s decision to overturn the Temporary Restraining Order issued by the lower court against Simon & Schuster,” the company said in a statement. The publisher said that it supported Mary Trump’s “right to tell her story.” Simon & Schuster added, “As all know, there are well-established precedents against prior restraint and pre-publication injunctions, and we remain confident that the preliminary injunction will be denied.”
Mary Trump’s attorney to file brief Thursday
Ted Boutrous, the renowned First Amendment attorney representing Mary Trump, who has also represented CNN in the past, welcomed the court’s decision as “very good news.” Boutrous added, “We look forward to filing our brief tomorrow in the trial court explaining why the same result is required as to Ms. Trump, based on the First Amendment and basic contract law.”

No comment from Harder

Meanwhile, there was silence from Robert Trump’s side of the dispute. I emailed Charles Harder, the lawyer representing him, and didn’t hear back. Sometimes, silence can be telling…

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Court Supreme

Supreme Court makes it easier for president to fire CFPB head – NBC News

WASHINGTON — The Supreme Court on Monday made it easier for the president to fire the head of the Consumer Financial Protection Bureau.

The justices struck down restrictions Congress had written on when the president can remove the bureau’s director.

“The agency may … continue to operate, but its Director, in light of our decision, must be removable by the President at will,” Chief Justice John Roberts wrote.

The court’s five conservative justices agreed that restrictions Congress imposed on when the president can fire the agency’s director violated the Constitution. But they disagreed on what to do as a result. Roberts and fellow conservative justices Samuel Alito and Brett Kavanaugh said the restrictions could be stricken from the law. The court’s four liberals agreed, though they disagreed the restrictions were improper.

The decision doesn’t have a big impact on the current head of the agency. Kathy Kraninger, who was nominated to her current post by the president in 2018, had said she believed the president could fire her at any time.

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Under the Dodd-Frank Act that created the agency in response to the 2008 financial crisis, the CFPB’s director is appointed by the president and confirmed by the Senate to a five-year term. The law had said the president could only remove a director for “inefficiency, neglect of duty or malfeasance in office.” That structure could leave a new president with a director chosen by the previous president for some or all of the new president’s time in office. The Trump administration had argued that the restrictions improperly limit the power of the president.

“We hold that the CFPB’s leadership by a single individual removable only for inefficiency, neglect, or malfeasance violates the separation of powers,” Roberts wrote.

Defenders of the law’s removal provision had argued the restrictions insulated the agency’s head from presidential pressure.

Justice Elena Kagan, writing for herself and three liberal colleagues, called the majority opinion simplistic.

“What does the Constitution say about the separation of powers—and particularly about the President’s removal authority? (Spoiler alert: about the latter, nothing at all.) The majority offers the civics class version of separation of powers—call it the Schoolhouse Rock definition of the phrase,” she said, referencing the educational, animated short films.

“Today’s decision wipes out a feature of that agency its creators thought fundamental to its mission—a measure of independence from political pressure. I respectfully dissent,” Kagan wrote.

The CFPB was the brainchild of Massachusetts senator and former Democratic presidential candidate Elizabeth Warren.

After the ruling, Warren wrote in a series of tweets that the Supreme Court had “handed over more power to Wall Street’s army of lawyers and lobbyists to push out a director who fights for the American people.” But, she said that even after the ruling the CFPB is “still an independent agency.”

“The director of that agency still works for the American people. Not Donald Trump. Not Congress. Not the banking industry. Nothing in the Supreme Court ruling changes that,” Warren wrote.

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Court Supreme

Supreme Court again declines to take up Second Amendment cases – CNN

Washington (CNN)The Supreme Court declined on Monday to take up several cases regarding the scope of the Second Amendment.

Despite a low hurdle for the right-leaning Supreme Court, the justices turned down petitions from 10 challenges to state laws established to limit the availability and accessibility of some firearms and when they can be carried in public.
It’s been over a decade since 2008’s landmark 5-4 ruling in District of Columbia v Heller that held the Second Amendment protects an individual’s right to keep and bear arms at home for self-defense. Except for a follow-up decision two years later, the court has not weighed in on Second Amendment rights significantly again.
Five of the 10 cases the court declined to look at asked the justices to determine whether the Second Amendment allows the government to restrict the ability of citizens to carry a firearm outside the home to those with “good cause” or “justifiable need” to do so. Two of the cases were high-profile challenges to state laws involving bans on certain semiautomatic firearms and high capacity magazines, one from Illinois and one from Massachusetts. The remaining three cases had a narrower scope, but none of the 10 will be argued before the justices.
Jacob Charles, the executive director of the Center for Firearms Law at Duke Law School, said the court’s decision to deny all of the pending Second Amendment petitions came as a surprise.
“The petitions denied today presented some of the biggest open questions in Second Amendment law, including what types of weapons the Constitution protects and how and whether the right extends outside the home,” Charles said. “For now, it appears that a majority of the Court is content to let these issues be sorted out by the lower courts.”
Three of the nine justices have been vocal in recent years about their desire for the court to take up a Second Amendment case. Last month, Justice Brett Kavanaugh expressed his concern that lower courts have been thumbing their noses at Supreme Court precedent on the Second Amendment, saying the court should “address that issue soon, perhaps in one of the several Second Amendment cases with petitions for certiorari now pending before the Court.”
Justice Clarence Thomas in 2018 complained that the lower courts were treating the Second Amendment right “cavalierly.”
Jonathan Lowy, chief counsel and vice president of pro-gun safety organization Brady: United Against Gun Violence, said the court’s decision not to hear any of the Second Amendment cases is “well-reasoned”
“Today’s decision is welcome, but we are vigilant that there remains a concerted effort to reverse it and undermine our nation’s hard-earned progress in instituting common-sense gun safety measures and that those arguments have found sympathy with several of the Justices,” Lowy said in a statement to CNN.
This story has been updated.

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Court Supreme

Supreme Court won’t hear challenge to California sanctuary law – CNN

Washington (CNN)The Supreme Court on Monday left in place a lower court opinion upholding one of California’s so-called sanctuary laws that limits cooperation between law enforcement and federal immigration authorities, a measure that the Trump administration says is meant to “undermine” federal immigration enforcement.

The Trump administration had asked the court to step in and review the law and the court declined to do so.
Justices Clarence Thomas and Samuel Alito, two of the Court’s conservative members, supported taking up the case.
The law — and others like it — have ignited a firestorm between the federal government, which has made immigration enforcement a top priority, and some states that say they are within their rights to determine how best to use their own resources.
During his State of the Union speech last January, President Donald Trump lamented California’s effort, which he classified as an “outrageous law.”

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Court Israel

Israel’s High Court Clears Way for Benjamin Netanyahu to Form Next Government – The Wall Street Journal

TEL AVIV—Israel’s top court ruled that Prime Minister Benjamin Netanyahu can form a government while under indictment, removing a final hurdle in the incumbent’s bid to remain in power as he goes on trial later this month on corruption charges.

The High Court this week reviewed eight separate petitions challenging a deal between Mr. Netanyahu and rival Benny Gantz to form a unity government after three inconclusive elections in a year. The two politicians said the coronavirus pandemic necessitated an end to continued political…

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