Monday, March 20, 2023

Hail Mary, Full of Grace; Get Us Out of This Dark Place

I'm not an expert on Georgia criminal law, but I'm confident in saying all 483 pages of this are what lawyers call a "Hail Mary."

It doesn't, in other words, have a prayer.
One has to wonder if that doesn't raise a conflict of interest. I would expect they are not. All right, I'm going in. Per the filing, the Special Grand Jury was empaneled because the investigation into Trump's actions was complicated and would tie up a regular GJ beyond its term and keep it from conducting other necessary business.  There is a complaint that Trump was never subpoenaed nor asked to testify before the Special GJ, which is odd.  If he was the target of the investigation, he wouldn't be asked to testify.  And if he did, he'd do so without counsel, which would be even worse for Trump than usual. So I don't get it.

So here's the argument, all in one paragraph:

First, the special purpose grand jury statutes are unconstitutionally vague, resulting in disparate application. The statutes are silent as to key powers and duties of the grand jury, and they do not prescribe what shall be included in the report, nor do they specify how or if it should be disseminated. The failures in the statutory framework directly impact the fundamental faimess of the proceedings and violate the due process rights of the individuals involved. 

That's it.  No case law, no footnotes, nothing.  A first-year law student would be expected to do better than this (no, I'm not exaggerating).  Vagueness in a statute can be a fatal flaw (as in how the statute defines "drag" for the purposes of outlawing it).  But in most cases the doctrine applies to laws used against persons or companies; neither of which is the subject here.  The SGJ seems to function, from this pleading, just like a regular one, except being called to investigate a specific instance or persons, rather than sitting to issue indictments on cases brought during its term.  Nothing unconstitutional about that.  It doesn't have to call the person being investigated (Manhattan didn't).  In fact, it would be pointless, since that person would simply invoked their 5th Amendment rights and not even show up. 

The fundamental flaw, however, is that the SGJ doesn't issue an indictment.  It isssues a report, and a regular grand jury is already reviewing that report, and the record of evidence/testimony.  That grand jury will, or will not, issue an indictment.  That grand jury is protecting whatever due process rights Trump thinks are imperiled, and that grand jury, alone, will threaten Trump's liberty, if at all.  The report of the SGJ is not published nor disseminated to the public in any way, which protects Trump or any other subject of the investigation from scurrilous charges which have no foundation in fact.  I fail entirely to see what they are complaining of, or how it hurts Trump, except that he doesn't like being the subject of a criminal investigation.  Suck it up, buttercup.

Second, the Supervising Judge applied the statutes in a way that violated the due process rights of the individuals involved when he held, contrary to Georgia precedent, that this SPGJ was a criminal grand jury. That determination had a negative ripple effect on the constitutional integrity of the entire process as it permitted the compulsion of testimony from out-of-state witnesses and impacted the application of core constitutional privileges such as the Fifth Amendment and sovereign immunity. 

I have no idea how Trump is protected by "sovereign immunity" or why Georgia can't compel testimony from persons residing outside of Georgia.  A "negative ripple effect on the constitutional integrity of the entire process" is a bit of a joke, too; and oddly, they don't say how the 5th Amendment was violated.

Third, the Supervising Judge improperly disqualified the FCDA’Office from investigating a singular target when it was instead required to exclude the FCDA’s Office from the entire investigation. The resulting prejudicial taint cannot be excised from the resultsofthe investigation or any future prosecution by the FCDA’s Office. Additionally, the FCDA’s media interviews violate prosecutorial standards and constitute forensic misconduct, and her social ‘media activity creates the appearance of impropriety compounding the necessity for disqualification.  

FCDA=Fulton County DA, who should have been "excluded" (i.e., disqualified) from this investigation because... it was a "perfect phone call"?  I guess.  I don't see any other argument for it.

Fourth, the foreperson’s and grand jurors’ comments illuminate the lackofproper instruction and supervision over the grandjury relating to clear evidentiary matters which violates the notionsoffundamental faimess and due process. The resultsofthe investigation cannot be relied upon and, therefore, must be suppressed given the constitutional violations. The foreperson’s public comments in andofthemselves likewise violate notionsoffundamental faimess and due process and taint any future grand jury pool. 

If this all looks like vague and glittery hand-waving rather than serious, grounded argument; that's because it is.  It's also incoherent, as in this later section where they expand on the poorly premised arguments quoted above;

In practice, these statutes [cited in original, excluded here] have been infrequently utilized. In those rare cases where they. are invoked, special purpose grand juries typically investigate governmental entities and/or employees and issue diverse reports contemplating a wide rangeoflegal options including both criminal and non-criminal, legislative, administrative, or governmental recommendations.

But in this case it was improperly used because, "contrary to Georgia precedent," it was a criminal grand jury?  Trump's not getting the best legal talent.  They go on to argue the statutes are vague on the point of whether a SGJ can be civil or criminal, and therefore it...can't be criminal?  Not sure why except that this SGJ investigated Trump.  Take this, for example;

if, as the Supervising Judge declared, this SPGJ was somehow criminal, it was still unconstitutionally administered because the FCDA improperly and arbitrarily assigned “target” labels, compelled those “targets” to appear, and the grand jurors drew adverse inferences from witnesses’ Fifth Amendment assertions. In both civil and criminal interpretations, the substantive due process rights of all parties impacted by the investigation have been violated. ‘The unconstitutional administration ofthis SPG violated all notions of fundamental faimess; witnesses could not depend onthe proper application of the law by the Supervising Judge, nor could they rely on statements from the FCDA in assessing how to adequately protect their rights. 

Is this suddenly a class action suit?  Trump spent pages asserting his standing to bring this motion.  Now he's representing the class of all persons called as witnesses before this grand jury?  Of course, the problem is, Trump was never called as a witness, so he didn't have to rely on these alleged improper applications of the law in determining how to adequately protect his rights.  He gets to to that, if at all, in open court.  It's an interesting attempt at dragging the doctrine of vagueness into these proceedings; but before you can get there you have to have standing to make the complaint.  You have to be, or be representing the class of, the alleged injured parties.  And Trump simply doesn't.

They also make a great deal out of the Supervising Judge declaring the SGJ a "criminal" one.  They do this by citing Georgia case law regarding SGJ's which ended up making referrals for criminal indictments to a regular grand jury.  Maybe.  W/ell, here, see if you can make sense of it:

The Kenerly special purpose grand jury was impaneled for the purpose of investigating suspected criminal activity surrounding the acquisition of real property at fraudulently inflated prices, and Gwinnett County Commissioner, Kevin Kenerly, was subsequently criminally indicted for his role in those deals." In affirming. the civil nature of that grand jury proceeding, the Kenerly Court implicitly rejected the notion that a special purpose grand jury is criminal if investigating potential criminal activity. Yet, this ‘was the sole basis cited by the Supervising Judge in declaring this SPG to be criminal. 

It's not clear from that recital if the SGJ issued the indictment, or if a regular grand jury did.  I'm guessing the latter; but either way, I fail to see how this supports their argument, rather than the argument of the FCDA.  Except the judge called this a "criminal" grand jury; but that's a label, not a substantive due process complaint (nor even a procedural one).

It goes on that way for 51 pages (432 pages of exhibits).  Lots of vague handwaving and lots of complaints that come down to "How dare Georgia investigate our client?" It's Trumpian with a legal veneer.  But underneath, like a Trumpian rant: nothing.

They'd better hope Mary saves them from the hole they've dug for themselves.  It's bound to be a dark place, indeed.

Meanwhile, back in Manhattan:

Of course, it's Manhattan.  What if they give an indictment and nobody (aside from Trump) comes? 

And there is a Manhattan connection here:
Very soon a lot of places are going to seem dark to Trump.
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