Category Archives: Litigation in the News

DNC lawsuit filed against Russia, the Trump campaign, and Wikileaks [text of complaint]

On Friday, the Democratic National Committee filed a lawsuit in the U.S. District Court for the Southern District of New York against the Russian government, the Trump campaign and associated persons, and WikiLeaks, alleging an illegal conspiracy to influence the outcome of the election. Here’s the text of the complaint. — Joe

Federal judge upholds 1998 Massachusetts assault weapons ban [text]

Holding that the firearms and large magazines banned by the state in 1998 are “not within the scope of the personal right to ‘bear Arms’ under the Second Amendment,” U.S. District Judge William Young decided that Massachusetts was within its rights since the ban passed directly through elected representatives. Text of Worman v. Baker, 1:17-cv-10107, Decided April 6, 2016, U.S. District Court, District of Massachusetts. — Joe

First sentence handed down in Mueller probe

Dutch national Alex van der Zwaan become the first person sentenced in special counsel Robert Mueller’s Russia investigation. On Tuesday in federal court in Washington, having pleaded guilty to lying to federal agents, van der Zwaan was sentenced to 30 days in prison for lying to investigators about contacts with ex-Trump aide Rick Gates. For more, see this BBC report. — Joe

New tool to track Immigration Court outcomes by county of immigrant’s residence

From Tracking Immigration Court Outcomes by County of Immigrant’s Residence: “The Transactional Records Access Clearinghouse (TRAC) at Syracuse University has just added new features that permit the public to examine the immigrant’s residence in all deportation cases before the Immigration Court. The new features track the state and county of residence during the period FY 2001 through February of 2018.

“The newly expanded detail tool covers all Immigration Court deportation cases, both past and present. This joins TRAC’s earlier released mapping tool which focuses just on currently pending court cases. The new tool is particularly powerful because users can drill in to see for any particular county or state the immigrants’ custody status as well as the eventual outcomes for their Immigration Court proceeding. Details on whether the immigrants were represented or not are also available.”

H/T Gary Price’s InfoDocket post. — Joe

Stormy Daniels amends complaint to sue Trump attorney Michael Cohen for defamation [text]

Stormy Daniels amended her lawsuit against Michael Cohen yesterday and is now suing him for defamation. She’s seeking both actual and punitive damages. Here’s the text of the First Amended Complaint. — Joe

Track major federal litigation using Big Cases Bot

Big Cases Bot follows major cases in SCOTUS and federal district courts, including Mueller prosecutions, challenges to Trump’s executive orders, and many others. It updates every four minutes.

h/t Bob Ambrogi’s LawSites post. — Joe

Ex-Playboy model Karen McDougal sues to be released from NDA with parent of National Enquirer [text]

Now comes Karen McDougal who alleges she had an affair with Trump years ago. Text of Complaint for Declaratory Relief here. — Joe

The Preamble as key to interpreting the Constitution

The Preamble’s Principal Place in Constitutional Law, 91 S. Cal. L. Rev. (Forthcoming), by John W. Welch and James Heilpern “argues that the Preamble to the Constitution of the United States of America deserves a place of primacy in constitutional law, in federal judicial decision-making, and in the nation’s civic discourse. The Preamble does more than set forth general, vague aspirations. It epitomizes the particular purposes behind the adoption of the Constitution that were desperately needed to repair and replace the faltering Articles of Confederation. The Preamble’s words were specifically and methodically chosen, both in the Preamble itself and often within the body of the Constitution. Based on their prompt affirmative vote, all members of the Constitutional Convention, which drafted the version of the Constitution that was submitted to the thirteen states for ratification, readily embraced the Preamble. Some delegates later stated explicitly that it should be used as the key to interpreting the Constitution, its meanings, intentions, purposes, and limitations. Indeed, it is doubtful that the Constitution would have been ratified without the text of the Preamble prominently standing at the top of the proposed document, and the Preamble occupied a dominant and valuable position at the head of constitutional analysis throughout the nineteenth century. In 1905, however, the United States Supreme Court decided the case of Jacobson v. Massachusetts. This case has been rarely discussed at any length and is only vaguely remembered. Perhaps somewhat unwittingly, the Court used language that has been understood to relegate the Preamble to a minor, insubstantial role: ‘Although that Preamble indicates the general purposes for which the people ordained and established the Constitution, it has never been regarded as the source of any substantive power conferred on the Government of the United States or on any of its Departments.’ The Court then went on summarily to treat the Preamble as irrelevant to the case.”

Recommended. — Joe

Stormy Daniels sues Trump over NDA [text]

Daniels’ attorneys argue that Trump’s failure to sign the NDA means Stormy Daniels is not bound by the terms of the agreement and is free to discuss her alleged affair with Trump. CBS News has published the text of the Complaint for Declaratory Relief. — Joe

Trump administration sues California over its sanctuary policies [text]

The Trump administration on Tuesday sued California over its sanctuary policies for undocumented immigrants. The United States claims that three California laws violate the Supremacy Clause and intrude on the federal power to regulate immigration. Text of the complaint. For an analysis see this ImmigrationProf Blog post. — Joe

Justices Thomas and Sotomayor debate legislative history in dueling concurrences

A unanimous Supreme Court struck a blow for the plain reading of the law last week in Digital Realty Trust, Inc. v. Somers (No. 16-1276, Feb. 21, 2018) but a pair of dueling concurrences deserve broader attention for what they say about the different methods of legal interpretation on the High Court today. At issue — legislative history. On The Volokh Conspiracy, see Justices Thomas and Sotomayor Debate Legislative History. — Joe

Gates pleads guilty, Manaford charged again [texts]

U.S. v. Paul J. Manafort, Jr. (1:17-cr-201, District of Columbia)

  • A federal grand jury in the District of Columbia returned a superseding indictment on Feb. 23, 2018, against Paul J. Manafort, Jr., 68, of Alexandria, Va. The superseding indictment contains five counts: conspiracy against the United States, conspiracy to launder money, unregistered agent of a foreign principal, false and misleading FARA statements, and false statements.

Superseding Indictment

U.S. v. Richard W. Gates III (1:17-cr-201, District of Columbia)

  • Richard W. Gates III, 45, of Richmond, Va., pleaded guilty on Feb. 23, 2018, to a superseding criminal information that includes: count one of the indictment, which charges conspiracy against the United States, in violation of 18 U.S.C. 371 (which includes conspiracy to violate 26 U.S.C. 7206(1), 31 U.S.C. 5312 and 5322(b), and 22 U.S.C. 612, 618(a)(1), and 618(a)(2)), and a charge of making false statements to the Special Counsel’s Office and FBI agents, in violation of 18 U.S.C. 1001. A status report with regard to sentencing was scheduled for May 14, 2018.

Superseding Criminal Information

Plea Agreement

Statement of the Offense

— Joe

Trump may have had the second worst day of his political life yesterday; documents

Donald J. Trump, the 45th President of the United States of America, had a bad day yesterday. New York Magazine published highlights from Michael Wolff’s soon to be published book, Fire and Fury: Inside Trump’s White House [Amazon] here and Trump’s reaction to the revelations contained therein, specifically those attributed to Steve Bannon here.

On a related note, Paul Manafort’s attorneys argued in a complaint filed yesterday that the DOJ order establishing Mueller’s investigation is overly broad and not permitted under Justice Department regulations. The 17-page complaint argues that the Russia special counsel exceeded authority DOJ gave him in May to investigate any links or coordination between the Russian government and the Trump campaign — and that DOJ granted Mueller too much power in the first place by giving him the green light to go after “any matters that arose or may arise directly from the investigation.” Here’s the complaint.

What might be the worst day in Trump’s political life? Perhaps election night if you believe Michael Wolff’s account of the evening. — Joe

Corpus linguistics applied to the Constitution’s emoluments clauses

From the abstract for James C. Phillips and Sara White’s The Meaning of the Three Emoluments Clauses in the U.S. Constitution: A Corpus Linguistic Analysis of American English, 1760-1799:

This paper tackles the meaning of emolument(s) in the founding era using the first (that we can find) full-blown corpus linguistic analysis of constitutional text in American legal scholarship. While at least three others (Randy Barnett, Jenn Mascott, and Joel Hood) have done corpus linguistics-like analysis in constitutional interpretation, none have used all of the tools of a corpus (collocation, clusters/n-grams, frequency data, and concordance lines) and used a sufficiently large and representative corpus of the relevant time period — here the underlying data of the soon-to-be released Corpus of Founding Era American English (COFEA) — to make confident conclusions about probably founding-era meaning.

The article does not discount other methodologies of constitutional exegesis; nor does the article claim to prove the meaning of any of the Constitution’s invocation of the word emolument, only make some meanings more probable than others; nor does the article take sides on whether the President has violated the Constitution. But the article does add another piece to the emolument puzzle, and provides a more rigorous, relevant, transparent, and accurate methodology than scholars have so far employed in investigating the original public meaning of the various emoluments clauses. In sum, this article is narrower than most on the topic, but within that niche it dives deeper than any have so far gone.

We constructed three corpora for our analysis that covered 1760-1799: one of books, pamphlets and broadsides from a mix of ordinary and elite authors (53.4 million words), one correspondence of six major “Founders” (43.9 million words), and one of legal materials (48.6 million words). From each we sampled about 250 instances of the use of the term emolument. We found that the broad, general sense of emolument was the most common compared to the narrow, office/public employment sense in the “ordinary” corpus (54.6% to 34.1%, 11.2% ambiguous), but that the general sense was less common than the narrow sense in the “elite” corpus (29.3% to 64.8%, 5.9% ambiguous) and the “legal” corpus (25.6% and 68.7%, 5.7% ambiguous). When just looking at instances in our sample where the recipient is an office, we found the narrow sense dominated: “ordinary” corpus (84.2%), “elite” corpus (88.0%), “legal” corpus (94.2%). And the narrow sense was even more common when looking in the context of emoluments from government: “ordinary” corpus (86.7%), “elite” corpus (92.6%), and “legal” corpus (97.3%).

This paper concludes that the Congressional and Presidential Emoluments Clauses would have most likely been understood to contain a narrow, office or public-employment sense of emolument. But the Foreign Emoluments Clause is more ambiguous given its modifying language “of any kind whatever.” Further research into that phrase is needed.

Interesting. — Joe

First lawsuit opposing President Trump’s monuments proclamations filed [text]

Yesterday, President Trump modified prior proclamations for the Grand Staircase-Escalante National Monument [text] and the Bears Ears National Monument [text] that significantly reduce the size of each monument. Already, one complaint for injunctive and declaratory relief has been filed by environment groups including The Wilderness Society and the Sierra Club. From the filing:

President Trump’s unlawful reversal of Grand Staircase-Escalante’s full protective reach exceeds his authority under the Antiquities Act. The Act authorizes Presidents to create national monuments; it does not authorize Presidents to abolish them either in whole or in part, as President Trump’s action attempts to do.

President Trump’s action even purports to overturn congressional legislation that added lands to the monument.

Accordingly, the President’s decision exceeds his authority under the Antiquities Act, violates the separation of powers between Congress and the President and the “take Care” clause of the U.S. Constitution, and is therefore unlawful.

— Joe

Special Counsel seeks to deny Manafort’s current motion to modify conditions of his release (text)

The Special Counsel’s team has evidence that Manafort failed to tell the government that he was ghost-writing an op-ed piece about his work in the Ukraine as late as Nov. 30th. From the Special Counsel’s court filing:

Even if the ghostwritten op-ed were entirely accurate, fair, and balanced, it would be a violation of this Court’s November 8 Order if it had been published. The editorial clearly was undertaken to influence the public’s opinion of defendant Manafort, or else there would be no reason to seek its publication.

Manaford was working on the op-ed piece with “a longtime Russian colleague” who is “assessed to have ties to Russian intelligence,” according to the special counsel’s court filing.

Special Counsel indicts Michael Flynn for lying (text)

Former National Security Adviser Michael Flynn “willfully and knowingly” made false statements, according to a lawsuit by Special Counsel Robert Mueller. According to the indictment, Flynn falsely stated to the FBI that he didn’t ask the Russian ambassador to refrain from escalating the situation in response to sanctions the U.S. had imposed against the country, and that he didn’t recall the ambassador subsequently telling him Russia had chosen to moderate its response to those sanctions. Flynn also was charged with falsely stating he didn’t ask the Russian ambassador to delay the vote on or defeat a pending United Nations Security Council resolution and that the ambassador subsequently never described Russia’s response. Business Insider has the indictment. — Joe

Understanding and preserving sanctuary cities in the age of Trump

From the abstract of Understanding ‘Sanctuary Cities,’ Boston College Law Review, Forthcoming, by Christopher Lasch et al:

This Article is a collaborative project authored by law professors specializing in the intersection between immigration and criminal law. In it, we set forth the central features of the Trump administration’s mass deportation plans and his recently-announced campaign to “crack down” on “sanctuary cities.” We then outline the diverse ways in which localities have sought to protect their residents from deportation by refusing to participate in the Trump immigration agenda. Such initiatives include limiting compliance with immigration detainers, precluding participation in joint operations with the federal government, and preventing immigration agents from accessing local jails. Finally, we analyze the legal and policy justifications for sanctuary that local jurisdictions have advanced with increasing intensity since Trump’s election. These insights have important implications for how sanctuary cities are understood and preserved in the age of Trump.

As a complement to this Article, we have created a public online library of sanctuary policies that includes all the policies cited here and many more we considered in our research.

— Joe

Trump’s tweets in court

Three Washington Post stories cover judicial notice of President Trump’s tweets on topics litigated in court: sanctuary cities, travel ban and transgender military ban cases. — Joe

DC court blocks transgender ban in military [Text of Ruling]

A federal judge issued an injunction Monday against President Donald Trump’s ban against transgender people serving in the military. The Court’s order blocks the ban as it pertains to current service members and the recruitment of a transgender individuals, but it keeps in place the president’s prohibition on coverage for sexual-reassignment surgery. Here’s the text of the ruling. — Joe