Friday, March 31, 2023

New legal woes for GOP frontrunners

It turned out that Thursday, March 30, was the day. Donald Trump earned yet another footnote in the history books as the first former president to ever be indicted.

A grand jury working for Manhattan DA Alvin Briggs returned an indictment that is still currently under seal. As I wrote last week, there is a lot of speculation about what crimes Briggs has linked The Former Guy to, but we don’t yet know exactly what the grand jury has seen or what crimes they believe the former president has committed.

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We do have some information and we can make some inferences based on previous cases involving Trump’s associates. Most interesting, we know that the indictment contains more than 30 counts per a CNN report. That seems to be far more than most analysts expected and would likely indicate that the charges will extend beyond the hush money payment to Stormy Daniels and campaign finance violations.

Other possible charges include falsifying business records, which is a class 3 felony carrying a sentence of one to four years in jail. The rub is that this charge would require that prosecutors prove intent to defraud. There is also speculation that other counts may include charges related to other hush money payments, fraud, and/or state tax crimes.

Since I wrote the original piece, there has been some new information on the statute of limitations. On the Advisory Opinions podcast, David French and Sarah Isgur point out that there are possible exceptions to the statute of limitations. Some of these, such as the defendant leaving the state, have precedents in the legal system. Others, such as not being allowed to indict a sitting president, are unprecedented but legally sound.

In any case, Trump’s lawyers say that he will turn himself in next week. Some reports say this will take place on Tuesday, which would mark two weeks from Trump’s original claim. It isn’t clear if the perp walk and mug shot will be made public, but I’d wager on pictures being leaked. I also would not be surprised if the mug shot is not added to Trump’s NFT trading card offerings.

The indictment is a wild card in the 2024 presidential race. The charges, which may not be adjudicated before the primaries, may inspire some Republican voters to dump Trump while others may vote for him as a show of support. The same is true of charges for other pending investigations, which would likely be more serious.

For now, the bottom line is that we don’t know much more about the charges against Donald Trump than we did two weeks ago. We won’t know until the indictment is either unsealed or leaked. Until then, anyone who says that Trump is either unquestionably guilty or innocent of the charges is just showing that they can’t be trusted. It’s really tough to know the truth about his guilt when we don’t even know the charges.

While Trump’s legal woes were the most serious, he wasn’t the only Republican getting bad news from the justice system. Florida Gov. Ron DeSantis’s bad news came in the form of a civil matter rather than criminal charges, but the news may be a blow to his presidential hopes.

On Wednesday night, news broke that Disney had quietly stripped most of the power from the Reedy Creek Improvement District Board (now called the Central Florida Tourism Oversight District) before the DeSantis Administration took away the corporation’s self-governing ability. DeSantis and his newly handpicked board members seemed floored by the revelation.

The Orlando Sentinel reported that the old board approved an agreement containing a “declaration of restrictive covenants” on February 8, one day before the Florida House approved a bill transforming the RCID. DeSantis replaced the Disney-picked board members with his own loyalists on February 27.

The agreement, which is available on the Sentinel site and is stamped as being recorded by the clerk of court on February 8, contains a litany of restrictions on the board’s authority. Among other things, the board is prohibited from using Disney’s name and Disney is essentially given veto power over most of the board’s decisions.

“This essentially makes Disney the government,” board member Ron Peri told the Sentinel. “This board loses, for practical purposes, the majority of its ability to do anything beyond maintain the roads and maintain basic infrastructure.”

In one clause that has set the internet aflame, the term of the agreement is said to be “effective in perpetuity… however that if the perpetual term of this Declaration is deemed to violate the ‘Rule Against Perpetuities,’ or any similar law or rule, this Declaration shall continue in effect for twenty-one (21) years after the death of the last survivor of the descendants of King Charles III, King of England, living as of the date of this Declaration.”

After a little research, this clause seems less important than the attention given to it would imply. The Rule Against Perpetuities is a complex legal doctrine that I won’t delve into (although you can find a good discussion of it here) since it is a Plan B. Disney’s real goal is to have the agreement last in perpetuity.

The real focus should be on the transfer of authority from the board to Disney. The legal arguments that I’ve seen so far have had little depth on either side. The discussions have basically consisted of the two sides shouting, “They can’t do that!” and “They just did!”

I’ve not seen much depth and even less objective discussion of the Florida statutes that would be relevant to resolve the dispute. Suffice it to say that I haven’t seen anyone offer a compelling legal argument that Disney’s actions, which were carried out in a vote at a public board meeting and posted on the board’s website, were unlawful.

Some Twitter users suggested that Disney intended the agreement more for show than to score a legal victory against DeSantis. I disagree. I think that Disney has every intention of winning the legal battle. At the very least, the company will draw out any DeSantis win through years of court battles.

Any legal wrangling may also open up the question of whether stripping Disney of its status was constitutional to begin with. I, along with many other observers, was surprised when Disney did not fight back on First Amendment grounds. There is Supreme Court precedent that the government cannot punish companies for their speech by removing special privileges.

And there is strong evidence that DeSantis picked the fight with Disney because the company criticized the inaptly nicknamed “Don’t Say Gay” law. Prior to their break over that bill, DeSantis had given Disney carveouts in his social media regulation, a loophole he has since closed. Afterward, the governor said that Disney had “lost [its] way” and that he would appoint board members who “would like to see the type of entertainment that all families can appreciate."

All that sounds very much like the government punishing a private company for its content decisions and taking actions to dictate that the company’s speech goes in a direction that the government finds acceptable. Those facts don’t sound like a close call as a First Amendment question.

In the end, however, it makes sense for Disney not to launch a costly frontal assault if they thought they could win the war with a special operations commando raid. I’ve said many times that Republicans tend to prefer politicians who fight over those who win. Looking back to John Boehner’s fiscal victories, we can even see that winning without fighting can be a cardinal sin to Republicans. For corporations like Disney, however, winning while minimizing confrontation is a win-win.

The entire brouhaha makes DeSantis look bad after claiming victory months ago. Now, after a heavyhanded and likely unconstitutional attack on a private company, the controversy throws his competence into question after the relevant agreement was posted on the RCID website for more than a month and only now seems to have been recently discovered by the new board members.

In a second legal misstep, DeSantis has said in a tweet that Florida “assist in any extradition request” for Donald Trump. There is also precedent saying that complying with extradition requests is not optional.

As noted earlier, Trump is apparently planning to turn himself in, but if The Former Guy did attempt to seek asylum in Florida, courts could step in and order the extradition. Refusal to comply with those court orders would engender a constitutional crisis, and causing a constitutional crisis is not something that most voters look for in a candidate. (Although I will stipulate that a minority of voters would love it.)

Finally, Mike Pence got his own bad legal news when he was ordered to testify before the January 6 grand jury. Although this probably does not hold any legal jeopardy for Pence, it does put him into an uncomfortable situation. Pence, who will probably run for president, must walk the tightrope between alienating the Trump loyalists in the GOP with alienating Republicans who still respect the rule of law, even when it is applied to Donald Trump.

For my part, I believe that if Pence is loyal to country over party (or the putative head of the party), he should have voluntarily testified when first requested. There is no legal doctrine that says that former vice presidents are immune to subpoenas in investigations of former presidents who broke the law.

It is ironic that three likely candidates for president find themselves in legal hot water in the same week. Donald Trump's woes are easily the worst of the three, but DeSantis and Pence’s problems also point to fundamental attitude problems within the GOP. In DeSantis’s case, the core problems are an authoritarian tendency to use government to stifle opposition and a lack of respect for the First Amendment. In Pence’s case, the problem is an all-too-common willingness to sweep Trump’s crimes under the carpet for the benefit of his party… and himself.

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I was recently asked why I don’t devote as much time to Joe Biden’s legal problems as I do Trump’s. The answer is that Joe Biden doesn’t really have any, despite what you may have heard on Fox News or OAN.

Hunter Biden, on the other hand, does have legal problems and is currently under investigation. But Hunter Biden is not an elected official and Hunter’s alleged crimes have so far not been linked to Joe. It’s possible that they never will. It’s possible that investigations of Hunter, now lasting much longer than the Mueller probe, won’t result in an indictment.

If and when Joe or Hunter are prosecuted, I’ll cover the story. For now, however, it’s a nothingburger.

From the Racket News

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