Trump Attorney Chesebro Suspended by New York Court

State of New York Supreme Court, Appellate Division Third Judicial Department 

Decided and Entered: October 31, 2024 PM-213-24

 ________________________________ 

In the Matter of KENNETH JOHN CHESEBRO, an Attorney. 

MEMORANDUM AND ORDER ON MOTION (Attorney Registration No. 4497913) 

Calendar Date: October 10, 2024

________________________________ 

PM-213-24 Chesebro.pdf

Thirty five years ago I picked up the Saturday morning New York Times and saw a squib that the Supreme Court had accepted a case Jason Daubert v. Merrell Dow Pharmaceuticals.  The appeal challenged the admission of evidence that an anti-nausea drug Bendectin blocked the development of healthy bone in utero.  The claim was plausible but plaintiffs' experts could point to no definitive statistical or widely accepted opinion evidence to establish a causal connection.    Junk Science! was the battle cry of pharmaceutical companies eager to avoid liability - particularly for such dramatic injuries.

I dialed long distance information and got the number of the lawyer who had filed the petition for certiorari. - Kenneth Chesebro, a young protege of Harvard's lion of constitutional law Laurence Tribe.

I had represented trial lawyers and the CIO in similar challenges in New Jersey.  I cited our successes and volunteered my time.  That began months of work on a team of lawyers and law professors mustered by the plaintiffs trial lawyers organization Association of Trial Lawyers of America.

Chesebro was a principal brief writer for Georgetown professor Michael Gottesman.  Justice Harry Blackmun wrote the majority opinion calling for trial judges to be "gatekeepers" but not final judges of the facts.  The case established the framework used to this day in Federal Rule of Evidence 702.  Expert opinion testimony must be based on reliable principles and methods" which are "reliably applied" to the facts of the case.  The transformation of jury trial into battles of experts was complete.

Despite his Massachusetts Avenue office and Harvard pedigree Chesebro drifted into the Trump orbit.  He was in the January 6, 2021 crowd at the Capitol which disrupted the legal transfer of power.  He helped devise and implement  scheme to submit  as valid a slate of unsuccessful Georgia electors who were pledged to Donald J. Trump, the defeated candidate for President.  Indicted  as a co-conspirator of the former President,  Chesebro pleaded guilty rather than face trial.     The Appellate Division of the New York Supreme Court has declared

Count 15 of the indictment alleged that respondent, along with Donald] Trump, [Rudy] Giuliani, John Eastman and others, unlawfully conspired in Georgia between December 6, 2020 and December 14, 2020 to knowingly file, enter and record a document entitled "Certificate of the Votes of the 2020 Electors from Georgia," in a court of the US, while having reason to know that the document contained a materially false statement. Specifically, the Certificate wrongfully stated that the signatories thereof were "the duly elected and qualified Electors for President and Vice President of the United States of America from the State of Georgia." Additionally, count 15 alleged that defendants David Shafer, Shawn Micah Tresher Still, and Cathleen Alston Latham – but notably not respondent – acting as co-conspirators, had placed in the US mail a document addressed to the Chief Judge of the US District Court for the Northern District of Georgia, with such act being an overt act to effect the object of the conspiracy.

His career in ruins Chesebro, who now resides in Puerto Rico finds himself unable to practice law in Massachusetts,, California, Florida, and Illinois. 

As China sentences prominent dissidents, others protest behind bars

As China sentences prominent dissidents, others protest behind bars

 Renowned Chinese legal scholar and leading human rights lawyer Xu Zhiyong, who was sentenced to 14 years, has been on a hunger strike since October 4 in protest against the deprivation of his rights, including being placed under "close surveillance" and denied communication with his family. As a result, his weight has dropped dramatically, and his health has deteriorated.

Since July, Xu has been required to get permission if he wants to go to the bathroom or leave his cell and whenever he leaves his cell, he will be closely followed by other inmates. He was forced to work, and prohibited from talking to other people, and other detainees were not allowed to talk to him. This kind of torture is called Baojia(包夹), a cruel form of solitary confinement and humiliation.

The Comstock Act Where Freedom Ends | Laurence H. Tribe | The New York Review of Books

Where Freedom Ends | Laurence H. Tribe | The New York Review of Books

The great Supreme Court advocate, Harvard constitutional law professor Laurence Tribe, now Emeritus,  has joined those raising the alarm about the threat that the 19th century Comstock Act could be used to criminalize aid to abortion. A prime example would be making indictable the mailing the abortifacient drug Mifestiprone.  A Texas federal judge's order to block that long FDA approved drug has already been stayed.  But the prestigious Harvard professor Adrian Vermeule has joined with Conor Casey, his sometime collaborator, to argue that the 1873 Comstock Act 18 USC 1461 bars it from the mails.

The Act's prohibition should be broadly construed, Vermeule and Casey argue, because it concurs with the natural law which abhors abortion. Since the Supreme Court in Dobbs v. Jackson Women's Health has overturned Roe v. Wade there is no obstacle, other than prosecutorial discretion, to enforcing the law which was once used to prosecute birth control pioneer Margaret Sanger.

Tribe, writing in the New York Review of Books,  recalls the first time he confronted the issue:

***in 1976, when I was teaching a class about the separation of church and state in American law. I was talking about the connection between religion and the federal ban on mailing so-called obscene matter—including, as Congress viewed things a century earlier in 1873 when it passed the Comstock Act, not just printed materials but contraceptives and pregnancy-ending drugs or devices that some religious groups considered sinful.

 Named after the misogynist crusader Anthony Comstock, it outlawed, among other things, mail-order condoms, which were being delivered to men along with risqué photos that its sponsors saw as ungodly aids to sexual pleasure and accompaniments to prostitution. Despite several efforts to repeal it, the bulk of the Comstock Act has remained on the books to the present day and could still be used by anti-abortion federal prosecutors against anyone who distributed by mail materials for medical management of miscarriages, including by inducing abortion, whether with mifepristone or other medications. And it could be used that way even if the Congress we elect this fall does not enact a nationwide abortion ban.

One question I explored with students of the Constitution in 1976 was whether federal enforcement of the Comstock Act’s prohibition against mailing pregnancy-ending drugs would be precluded by the Supreme Court’s then-recent overturning of the sweeping abortion ban that the Texas legislature had enacted in the Comstock spirit. Did that decision, Roe v. Wade (1973), invalidate a nationwide federal ban on some category of abortions or only a ban enacted by a single state with especially little regard for women’s control over their own bodies?

Depending on the results of the November elections we may find that the Comstock Act has vigorous support in the United States Department of Justice. - GWC

Thomas Edsall | America Is Playing With Fire - The New York Times

Opinion | America Is Playing With Fire - The New York Times

By Thomas Edsall

***What might constrain Trump if he wins another term in the White House?

Jack Balkin, a professor of constitutional law at Yale, emailed his response to my queries:

Imagine a set of concentric circles of defense against presidential misbehavior. The first consists of the president’s own advisers, military officials, the Justice Department, and the civil service. The second circle of protection is the threat of impeachment and removal. The third is the threat of subsequent criminal prosecution after a president leaves office.

If Trump wins, the first two circles of defense will collapse, Balkin wrote, because Trump “will choose advisers who will not stand up to him” and “two failed attempts at impeachment and removal during Trump’s first term have demonstrated that impeachment is not a viable remedy for presidential misbehavior in a highly polarized environment.”

The Supreme Court’s decision in Trump v. United States, Balkin continued, “threatens to remove the third circle of protection because Trump can launder everything through discussions with his close subordinates, especially members of the Justice Department, and claim absolute immunity.”

Balkin’s concerns over the consequences of the immunity decision are widely shared.

 

https://x.com/NickKnudsenUS/status/1848756211023548531

NJ Supreme Court adopts readmission process

Since In re Wilson   45 years, ago disbarred attorneys in New Jersey had no path to reinstatement.  But they now will have an opportunity to apply for readmission to the Bar under a series of administrative determinations released today by the New Jersey Supreme Court. The Court acted on the recommendations of a committee created under the direction of a 2022 Supreme Court opinion In the Matter of Dionne Larrel Wade. 

The Wade opinion reaffirmed the longstanding practice that attorneys who knowingly misappropriate funds should be disbarred, but also raised the question of “whether and how to create a rigorous system that can determine if a lawyer disbarred for those reasons deserves a second chance years later.” But pursuant to the Wade decision, the Court convened a Special Committee comprised of lawyers, judges, and a cross-section of the public to examine the issue of permanent disbarment from multiple perspectives. 

 The Special Committee, by a significant majority, recommended that the Court adopt a path back from disbarment. Twenty-one (21) members voted for a path back, five (5) voted to maintain permanent disbarment, and two (2) abstained.

The Committee released its report in May 2023 allowing application for restoration after a five-year period if they have satisfied a series of requirements designed to evaluate whether they now possess the necessary competency, integrity, and character to practice law in New Jersey. The readmission process also includes case-specific safeguards designed to protect the public and retain confidence in the legal profession. 

“Going forward, New Jersey’s legal system will have a robust and fair review process that not only protects the public but also affords disbarred attorneys, who have taken appropriate steps, a chance to practice law again after five years,” Chief Justice Stuart Rabner said. “We are grateful to the members of the Wade Committee, particularly its co-chairs, retired Associate Justice Virginia A. Long and Camden County College President Dr. Lovell Pugh-Bassett, for their thoughtful review and thorough examination of the disbarment issue,” Chief Justice Rabner said. Along with approving the recommendation to allow for the possibility of reinstatement, the Court also determined that petitioners must: - bear the burden of proof in demonstrating clear and convincing evidence of rehabilitation in readmission proceedings. - earn a passing score on the New Jersey Bar Exam no more than one year prior to the filing of their application and pass the Multistate Professional Responsibility Examination (MPRE). - complete Continuing Legal Education courses specified by the Court before applying for readmission. - provide notice to all individuals whose complaints resulted in disbarment, including those whose complaints were docketed but dismissed as a result of the disbarment. - repay all aggrieved individuals. 

 The Court’s determination also allows it to use its discretion in imposing any number of conditions necessary to maintain the public trust. Should the Court deny a petition for readmission, the disbarred attorney must wait two years to reapply. The Court also retains the authority to impose permanent disbarment in egregious circumstances, and to order that no further applications be permitted from a specific petitioner. Petitions for readmission will be adjudicated by a new board, the Attorney Regulatory Board, which will make recommendations to the Court. New Jersey is now one of 42 states that provide disbarred attorneys a path to readmission. The Administrative Determinations and the Order can be found at njcourts.gov.

Judge Chutkan releases redacted evidence in Trump January 6 case

rump Election CaseRead Volume 1, Volume 2, Volume 3 and Volume 4 of the redacted appendices to the special counsel’s evidentiary brief.

Inside The Mystery Of Why The Supreme Court Declined To Hear A Pressing Abortion Case - TPM – Talking Points Memo

Inside The Mystery Of Why The Supreme Court Declined To Hear A Pressing Abortion Case - TPM – Talking Points Memo

By Kate Riga

|

October 14, 2024 9:41 a.m.

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Last week, the Supreme Court surprised court-watchers by declining to take up an emergency abortion case out of Texas, leaving the state’s near-absolute ban in place.

The case, almost identical to one in Idaho the Court heard last term, centers on whether even states with abortion bans must allow emergency room physicians to provide abortions in critical cases. The federal Emergency Medical Treatment and Labor Act (EMTALA) requires hospitals taking federal funds to stabilize all patients in crisis — and the Biden administration has clarified that that mandate includes abortions, when that’s the needed care.

The Court released its Texas order on the shadow docket, with no explanation or noted dissents. 

“When I saw the news, I was very surprised — and surprised that the liberals didn’t say anything,” David Cohen, professor at Drexel University’s Thomas R. Kline law school, told TPM. 

The move was odd for two reasons; first, the Court considered virtually the same issue — whether state abortion bans preempt federal emergency room standards — last term, with the Idaho case, ultimately punting it back down to the appeals court and deciding that it had intervened too early. The case is almost certainly going to bubble back up to the Court at some point (if the justices choose to take it up), but the justices still kicked it down the road. 

Second, in the Texas case, U.S. Solicitor General Elizabeth Prelogar had asked the justices to grant certiorari, vacate the 5th Circuit’s opinion siding with Texas and send the case back down to the lower court for further consideration. She cited factors including the Court’s Idaho proceedings and Texas’ assertion that there is no daylight between its abortion ban and the care it is required to provide in emergency rooms as reasons why the case is ripe for further litigation.

The Court did none of that. It rejected the government’s petition, letting the 5th Circuit’s decision stand. Meanwhile, the near-identical case out of Idaho that the Court heard last term is back at the 9th Circuit. 

For experts, the flat rejection of the Texas case raised both additional questions and possible insight into how the critical question may ultimately be decided. 

“I guess a majority of the Justices (unlike many doctors and patients) just feel like this isn’t a hair-on-fire emergency that they need to deal with right away, and they are fine to let Texas continue enforcing its law in the meantime? And it’s likely that this issue goes away completely if Trump wins the election, so why get everyone all worked up if the EMTALA interpretation gets repealed anyway?” Jessie Hill, associate dean and reproductive rights scholar at Case Western Reserve University School of Law, mused to TPM. “And finally, I suspect this is a bit of a tell about where the majority stands — they are not going to rule for the Biden Administration anyway, so it’s not going to change the ultimate outcome if they take the case now vs decide the issue later.”

That read would match the tenor of oral arguments in the Idaho case, where the right-wing justices insistently tried to paint a world in which the state’s abortion ban — one of the strictest in the country — contained exceptions that would amenably stretch to cover a litany of gruesome cases the liberals and Prelogar described for listeners. They sounded so strongly arrayed against the Biden administration that some court-watchers interpreted their decision to kick the case back down to the 9th Circuit as an attempt to keep a major anti-abortion headline out of the news before the election. 

“One possibility is that they want to avoid another abortion case, especially right before the election,” Cohen said, adding: “Another possibility is that they want to let this case — especially after the Idaho one — play out fully in the lower court.” (The district court had not yet gotten to the merits of the case, with litigation so far focused on whether Texas’ ban should be suspended while the case plays out.)

If Trump is elected, both experts noted, the cases likely disappear. Idaho’s definitely would, as it was initially brought by the Biden Justice Department. And Texas officials might drop their lawsuit, knowing that a Trump administration would never come after them under EMTALA for declining to provide abortions. 

The other oddity in the justices’ rejection of the Texas case is the silence from the liberals. While we don’t know how they voted on the case, there were no noted dissents. Justices can and often do write when they disagree with the majority’s decision to take up or reject a case. 

“That could indicate that the liberals know this case is not going to go their way, so it’s better to hold off on granting cert and at least leaving the Idaho law blocked for however long it takes for that case to make it back, rather than having it decided this term and then losing the Idaho injunction too,” Hill theorized. 

It doesn’t explain why, she noted, they didn’t write in defense of the Solicitor General’s plan. 

The Supreme Court has never been a transparent institution, its justices shielded from reporters’ questions and increasingly making decisions via the shadow docket without oral arguments or often any writing at all to indicate their thinking. 

For women risking permanent injury or death from pregnancy complications, their right to get an emergency abortion (already nonexistent in Texas), exists tenuously in this silence, predicated on the Court’s whims, the speed of the appellate courts, who wins the election.

“Ultimately, I would read it at least partly as an indication of where the conservative bloc of Justices stand on the merits,” Hill concluded. 

Mifepristone Lawsuit: Abortion Pills are Under Attack

Mifepristone Lawsuit: Abortion Pills are Under Attack

By Jessica Valenti

As I reported earlier today, the Republican Attorneys General of Kansas, Missouri, and Idaho have filed an amended complaint against the FDA—a suit that seeks to significantly roll back access to mifepristone and ban the shipping of abortion medication. 

The attack on abortion medication comes just weeks before an election that’s been defined by abortion rights and Republicans’ attempts to run from voters’ post-Roe fury. (There’s a reason that the three AGs aren’t shouting the case from the rooftops!) 

The suit—which is filled with anti-abortion misinformation, scare tactics, and bizarre claims about women and girls’ health, including the idea that abortion medication “starves the baby to death in the womb”—is conservatives’ latest attempt to go after mifepristone. This summer, the Supreme Court ruled that previous plaintiffs didn’t have standing to challenge the FDA.

Anti-abortion groups are hoping that this newer complaint will have better luck. 

It’s also worth noting that the complaint was filed with Judge Matthew Kacsmaryk, the ultra-conservative asshole who ruled in favor of the previous mifepristone suit and tried to take mifepristone off the shelves. What’s interesting is that obviously none of these AGs are from Texas—so why did they get to file in Amarillo? Essentially, they were able to ensure they’d be in front of Kacsmaryk by filing their case as an “intervening” complaint—piggybacking off the old mifepristone case. Sneaky stuff.

Before I get into the nitty gritty of the complaint, a few important things to remember: While this case was brought by three specific states, a ruling would impact the entire country—even pro-choice states. And for as much as Republicans are trying to run from their anti-abortion extremism, this complaint makes crystal clear just how hyper-focused they are on banning abortion everywhere.

As law professor David S. Cohen tells me, “Believe what the Republicans do, not what they say.” He points out that the filing proves everything we’ve warned about—from Republicans trying to get abortion pills off the market to using the Comstock Act to enact a back-door ban.

“This might as well have been written by the people who wrote Project 2025,” he says.

Judicially Executed Cover-Up | Brennan Center for Justice

Judicially Executed Cover-Up | Brennan Center for Justice

By Michael Waldman (President and CEO - Brennan Center _ NYU)

Last week, Special Counsel Jack Smith submitted a 165-page brief to Judge Tanya Chutkan in the prosecution of Donald Trump for trying to overthrow the Constitution’s peaceful transfer of power.

The filing shows how outrageous it was for the Supreme Court to issue Trump v. U.S. just four months ago. That ruling conferred vast immunity on presidents who break the law, so long as they do so as part of “official” acts.

When the justices stalled the arguments and delayed the ruling until the last day of the term, then sent fuzzy instructions to the trial judge, they ensured that Trump would not face a criminal jury before the election. Voters were deprived of vital information too. This was a judicially executed cover-up.

As the Supreme Court term starts this week, the most important cases may well be those that have not yet even been added to the docket. The justices will likely rule on election cases. And they may hear appeals in the Trump prosecution, offering them a chance to compound the damage already done. All of which makes clear, yet again, why the Supreme Court itself needs reform.

According to Smith’s filing, Trump knew he had lost the election. His aides and his vice president told him so repeatedly. He reportedly told family members, “It doesn’t matter if you win or lose. You have to fight like hell.” His schemes to overturn the voters’ will were a direct and conscious effort to stay in the White House for another term.

Sen. Tom Cotton (R-AR) called the filing “a temper tantrum from a deranged fanatic.” (He meant Smith, by the way, not Trump.) That’s wrong. By stalling the case, Trump’s lawyers and the Supreme Court pushed these proceedings into the weeks before the election. Nothing in Justice Department rules or the criminal law stops a prosecutor from making a filing like this, as top Watergate prosecutor Phil Lacovara and others have explained. As for the complaint that this sworn testimony has not been subjected to the rigors of a trial, with the defendant able to rebut the damning evidence, well, yes — all the more reason for a speedy and public trial.

All of this underscores why term limits for the Supreme Court make sense. ***

The Striking Details That Jack Smith Used To Tighten His January 6 Case Against Trump - TPM – Talking Points Memo

The Striking Details That Jack Smith Used To Tighten His January 6 Case Against Trump - TPM – Talking Points Memo

Special Counsel Jack Smith laid out his most detailed case yet in a filing unsealed Wednesday for why Trump can still be prosecuted in spite of the Supreme Court’s capacious immunity decision.

It’s partly a dare to the Supreme Court, asking it — assuming the matter works its way up again from Judge Tanya Chutkan’s chambers to the high court — to outright declare that Trump’s effort to thwart the 2020 election formed part of his official duties.

In so doing, Smith gave a more precise and detailed account of key moments in which Trump allegedly violated the law.

Critically, Smith provided tighter evidence in three specific areas:

• Trump allegedly knew that he had lost the 2020 election and chose to fight anyway.
• The aim of the attempt to delay certification of the election on January 6 was for leverage to “negotiate” a Trump victory, diverging from the way in which the U.S. has picked a President for more than two centuries.
• Trump and those around him saw and used violence as a means of winning the post-election fight.

Liz Cheney - with Kamala Harris - at Ripon, IL, birthplace of the GOP

 

https://x.com/Liz_Cheney/status/1842343744357470622

tear it all down.. Neil Gorsuch's new book tour.

https://ballsandstrikes.org/scotus/supreme-court-term-preview-2024/

Jack Smith immunity determinations motion and brief

 

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA UNITED STATES OF AMERICA V. DONALD J. TRUMP, Defendant. * * * CRIMINAL NO. 23-cr-257 (TSC

Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 1 of 165)

 * * * * * GOVERNMENT'S MOTION FOR IMMUNITY DETERMINATIONS 

The defendant asserts that he is immune from prosecution for his criminal scheme to overturn the 2020 presidential election because, he claims, it entailed official conduct. Not so. Although the defendant was the incumbent President during the charged conspiracies, his scheme was fundamentally a private one. Working with a team of private co-conspirators, the defendant acted as a candidate when he pursued multiple criminal means to disrupt, through fraud and deceit, the government function by which votes are collected and counted a function in which the defendant, as President, had no official role. In Trump v. United States, 144 S. Ct. 2312 (2024), the Supreme Court held that presidents are immune from prosecution for certain official conduct? including the defendant's use of the Justice Department in furtherance of his scheme, as was alleged in the original indictment— and remanded to this Court to determine whether the remaining allegations against the defendant are immunized. The answer to that question is no. This motion provides a comprehensive account of the defendant's private criminal conduct; sets forth the legal framework created by Trump for resolving immunity claims; applies that framework to establish that none ofthe defendant's charged conduct is immunized because it either was unofficialor any presumptive immunity is rebutted; and requests the relief the Government seeks, which is, at bottom, this: that the Court determine that the defendant must stand trial for his private crimes as would any other citizen. Case 1:23-cr-00257-TSC Document 252 Filed 10/02/24 Page 2 of 165 This motion provides the framework for conducting the “necessarily factbound” immunity analysis required by the Supreme Court's remand order. Trump, 144 S. Ct. at 2340. It proceeds in fourparts. Section I provides a detailed statement ofthe case th

Penumbras, Presidential Immunity, and Pure Politics at the Supreme Court - Eric Segall - Dorf on Law

Penumbras, Presidential Immunity, and Pure Politics at the Supreme Court

By Eric Segall - Dorf on Law  blog

Never in the history of our Republic has a President had reason to believe that he would be immune from criminal prosecution if he used the trappings of his office to violate the criminal law. Moving forward, however, all former Presidents will be cloaked in such immunity. If the occupant of that office misuses official power for personal gain, the criminal law that the rest of us must abide will not provide a backstop. With fear for our democracy, I dissent. - Sonia Sotomayor dissenting in Trump v. United States  

There is not a syllable in the text of the United States Constitution supporting a presumptive privilege of presidential communications, an absolute immunity barring all civil suits against the President, or any immunity against criminal prosecution after leaving office. In fact, the Impeachment Clause specifically anticipates criminal prosecutions against former Presidents:

Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.

And even more problematically, if that is possible, the Constitution specifically provides a limited immunity for members of Congress in certain circumstances, so we know that the Framers understood how to give government officials immunity when they wanted to do so. For the Court to create a common law immunity for the President for his criminal acts with serious limits on how the prosecution can prove the President committed unofficial acts is penumbras and emanations on steroids.

Conservative legal academics, judges, and politicians for decades accused the Warren and Burger Courts of not taking text seriously and engaging in result-oriented jurisprudence. Griswold and Roe were exhibits 1 and 2 in that on-going commentary. But it turns out, as it almost always does within constitutional law, that the strong objections to the reasoning and processes of Griswold and Roe had nothing to do with process and reasoning and everything to do with politics and ideology. Conservatives have now taken penumbras and emanations to a new level of aggressive judicial review across a broad spectrum of constitutional litigation.