Legal Stuff: Stunning Charges Of DoJ Criminality In Trump Case; SCOTUS To Continue Its Dismantling Of The Admin State?

The lawfare war on Trump to prevent his re-election as POTUS—really, even his candidacy—has long been extremely questionable for the lack of merit in the multiple approaches that have been taken. If the latest allegations are true, DoJ—and we’re talking very high level officials—may have broken new ground in prosecutorial lawbreaking. The Federalist has the story, as far as details are known. The author has the background to recognize the gravity of what’s being alleged:

Will Scharf is a former federal prosecutor, who also worked on the confirmations of Supreme Court Justices Brett Kavanaugh and Amy Coney Barrett. He is currently a Republican candidate for Missouri Attorney General.

The title of the article makes no bones about how potentially big this story could be:

If Alleged DOJ Misconduct Is True, A Judge Could Dismiss The Whole Case Against Trump

The facts are easily understood—if true this would be straightforward criminal misconduct, although it could also open up the possibility of civil suits by Trump and the other defendant in this case, Waltine “Walt” Nauta. The charges of prosecutorial misconduct have been brought before the Chief Judge of the DC District Court by Nauta’s lawyer—Stanley Woodward, “a distinguished, highly-regarded Washington attorney” who has also applied to be a D.C. Superior Court judge. Woodward alleges that the DoJ chief of Counterintelligence, Jay Bratt, “indicated” in a meeting with Woodward that Woodward’s application to be a judge “could be impacted if he could not get Nauta to testify against Trump.”

This is a big deal. As the author says, why would Woodward jeopardize his successful career and the possibility of the judgeship he’s seeking by inventing a serious charge against a very high DoJ official—and presenting this charge to the chief judge of the federal district of DC? If true:

… Bratt’s alleged misconduct could result in heavy sanctions, and is a potential ground for dismissal of the entire case against Nauta and Trump. Depending on what exactly was said, Bratt could even face criminal prosecution himself.

Further:

The conduct claimed is perhaps unprecedented and certainly flagrant, amounting to nothing less than an effort by a high-ranking DOJ official to deprive a defendant of his Sixth Amendment right to counsel through inappropriate and potentially unlawful acts.

At the very least, Trump and Nauta deserve answers. Courts routinely allow discovery by the defense in cases of alleged prosecutorial misconduct — including depositions and requests for documents and communications — in order to determine the scope, breadth, and effects of any misconduct that occurred. The defense team in this case should seek testimony from Bratt to get to the bottom of what he said and why.

The author has a further recommendation that should increase the pucker factor for an already serious matter:

… defense counsel should also seek to subpoena any communications between Bratt and others in DOJ and the White House relating to Woodward’s judgeship application and Bratt’s approach to Woodward more generally. My assumption is that these communications will be eye-opening, and may reveal even more misconduct on the part of the DOJ, the special counsel’s team, and their political masters.

Here are the types of criminal charges that could be in play:

Make no mistake, this is a huge deal. Bratt’s conduct may even fall within the ambit of federal criminal statutes. Depending on what exactly was said, Bratt’s conduct could constitute attempted witness tampering in violation of 18 U.S.C. § 1512(b)(1), attempted federal bribery in violation of 18 U.S.C. § 201(b)(3), attempted extortion by a federal official in violation of 18 U.S.C. § 872, or attempted subornation of perjury in violation of 18 U.S.C. § 1622.

As determined as the Ruling Class is to prevent Trump’s candidacy, Trump is just as determined to forge ahead. The Ruling Class is pulling out all the stops, and in their mind trashing the justice system is a small price to pay for excluding Trump. The danger is that desperate times call for desperate measures. That’s a danger for our constitutional order, but desperate measures are risky by their nature—and could also land those who would abuse our justice system in some serious legal soup.

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This next item I picked up at Powerline. It’s simply a brief notice that the SCOTUS will be taking up yet another case that focuses on the Administrative State. This case is one more in a series of such cases in the last few years, and they all—to one degree or another—have led to restrictions on the powers of the Administrative State. This case could lead to a broader ruling than some previous cases:

The Wall Street Journal Editorial Board previews the case:

Mr. Jarkesy argues that a provision in the Dodd-Frank Act allowing the SEC to adjudicate enforcement actions and seek civil penalties in its in-house courts violates his Seventh Amendment right to a trial by jury. Before Dodd-Frank, the SEC had to litigate fraud claims in Article III federal courts where defendants enjoy more procedural rights.

He also says Congress improperly delegated to the SEC unreviewable power to choose whether to bring charges either in its in-house or federal court. The SEC has increasingly chosen the former because it has a home-court advantage. At the time of Mr. Jarkesy’s trial in 2014, the agency had won 100% of 200 contested cases compared to 61% in federal courts.
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The fundamental constitutional problem is that the SEC combines enforcement and judicial power, acting as prosecutor, judge and jury. This constitutional danger was underscored last month by the SEC’s disclosure that its enforcement staff had improperly gained access to information intended for commission officials who were adjudicating cases. This included information about Mr. Jarkesy.

The Fifth Circuit ruled in Mr. Jarkesy’s favor last May. The case gives the Supreme Court an opportunity to continue the process of whittling the administrative state down to size. And, who knows, perhaps one day restoring the government that the Founders thought they were founding.

Clearly the SCOTUS majority of six see themselves to be on a mission to restore the nation to something more closely conforming to the intentions of the framers of the Constitution, as Powerline says. We are seeing this in free speech cases, in federalism cases, and also in separation of powers cases.