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‘Put Up or Shut Up’: Chutkan Order to Trump Praised by Legal Experts

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Legal experts closely following defendant Donald Trump’s myriad of criminal and civil trials are praising U.S. District Judge Tanya Chukan’s order on Wednesday requiring the ex-president to prove the basis for the defense he has claimed he is expecting to use in the prosecution against him for allegedly attempting to overturn the 2020 election.

“Judge Chutkan will require Trump to disclose by Jan. 15 whether he intends to use an ‘advice of counsel’ defense in his Washington, D.C. trial — and to provide relevant documentation of that defense at the same time,” Politico’s Kyle Cheney reports.

Trump is expected to allege he cannot be guilty of the crimes he is charged with because he acted on the “good faith” advice of his attorneys. He would have to have “made full disclosure of all material facts to his attorney before receiving the advice,” according to Chutkan’s Wednesday opinion and order.

Judge Chutkan adds that if he does invoke that defense, Trump must waive attorney-client privilege and provide the court with all documents and evidence related to his claim, even any that undermine his assertions.

READ MORE: Fox News Host After GOP Losses: ‘What’s Most Important? Republicans Taking Over’

“Very good development,” writes constitutional law professor and former Deputy Asst. Attorney General Harry Litman. “Trump has to put up or shut up on this well in advance.”

“Short point is that he doesn’t have the legal basis for asserting advice of counsel– and he’d have to waive privilege–so getting it out in the open early will preempt them from pulling fast ones,” Litman also writes.

Joyce Vance, also a professor of law and former U.S. Attorney says, “Trump will have a heavy lift convincing the Judge to permit him to use an advice of counsel defense at trial, among other things because you can’t rely on the advice of your co-conspirators, even if they’re lawyers. If the Judge rules against him, it can’t be mentioned at trial.”

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Trump Says He ‘Saved’ Iranian Ayatollah From ‘Very Ugly Death’

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President Donald Trump took umbrage at Ayatollah Ali Khamenei declaring victory in the war with Israel. Trump said he knew where the Ayatollah was hiding and stopped Israel from killing him.

On Thursday, Khamenei posted to X, formerly Twitter, declaring victory over both Israel and the United States in the war that started on June 13, ending with a ceasefire agreement brokered by Trump on June 24. During the war, Israel’s attacks killed at least 610 people, compared to 28 Israelis killed by Iran’s attacks.

“With all that commotion and all those claims, the Zionist regime was practically knocked out and crushed under the blows of the Islamic Republic,” Khamenei posted.

READ MORE: Trump Says News Media ‘Caught Cheating Again’ For Questioning Iran Claims

“My congratulations on our dear Iran’s victory over the US regime. The US regime entered the war directly because it felt that if it didn’t, the Zionist regime would be completely destroyed. It entered the war in an effort to save that regime but achieved nothing,” he added in another post.

Trump took offense in a Friday Truth Social post at how the Ayatollah framed things .

“Why would the so-called ‘Supreme Leader,’ Ayatollah Ali Khamenei, of the war torn Country of Iran, say so blatantly and foolishly that he won the War with Israel, when he knows his statement is a lie, it is not so. As a man of great faith, he is not supposed to lie. His Country was decimated, his three evil Nuclear Sites were OBLITERATED, and I knew EXACTLY where he was sheltered, and would not let Israel, or the U.S. Armed Forces, by far the Greatest and Most Powerful in the World, terminate his life. I SAVED HIM FROM A VERY UGLY AND IGNOMINIOUS DEATH, and he does not have to say, ‘THANK YOU, PRESIDENT TRUMP!'” Trump wrote.

Trump then said that the Israel strike that happened shortly after the ceasefire was announced would have been “the final knockout” had he not demanded Israel “bring back a very large group of planes.” He also said that until he heard Khamenei’s statement, Trump was considering lifting sanctions on Iran “which would have given a much better chance to Iran at a full, fast, and complete recovery.”

“They have no hope, and it will only get worse! I wish the leadership of Iran would realize that you often get more with HONEY than you do with VINEGAR. PEACE!!!” Trump added.

The brief war started when Israel made a surprise attack on Iran’s nuclear sites including scientists and military figures like the Iran’s chief of staff of the armed forces, Maj. Gen. Mohammad Bagheri; commander-in-chief of the Islamic Revolutionary Guard Corps, Gen. Hossein Salami; and the head of the IRGC Air Force, Gen. Amir Ali Hajizadeh.

Israel’s defense minister Israel Katz confirmed that the country had wanted to kill Ayatollah Khamenei as well. Though reporting suggested that the United States had talked Israel out of this, Katz said permission wasn’t needed. Rather, he said, Khamenei survived because there was “no operational opportunity,” according to Al Jazeera.

On June 22, the U.S. attacked three of Iran’s nuclear sites in Natanz, Fordow and Isfahan. There were no casualties. Nor were there any casualties when Iran retaliated with a strike on a U.S. base in Qatar.

Trump made the order to attack Iran without informing Congress beforehand. The U.S. strike was controversial, with Rep. Al Green filing an article of impeachment alleging Trump violated the War Powers Act, but the article was quickly tabled.

Trump has repeatedly claimed the U.S. attacks had “obliterated” the Iranian sites. Early intelligence reporting seen by CNN and the New York Times said that the destruction had been overstated. Later reports from the CIA said the sites were “severely damaged.” However, it is still unknown whether Iran’s supply of enriched uranium was destroyed as Trump says, or moved before the strike.

Image via Reuters

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FIRST AMENDMENT? WHAT FIRST AMENDMENT?

Kagan Calls SCOTUS Porn Ruling ‘Confused’: ‘At War With Itself’

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Justice Elena Kagan called Friday morning’s Supreme Court porn ruling “confused,” saying it flies in the face of established First Amendment case law.

In Free Speech Coalition, Inc. v. Paxton, the Supreme Court upheld a Texas state law that requires adults to provide official identification in order to view websites where at least one-third of the content on it is “harmful to minors.” The case was decided 6-3 on ideological lines, with Justice Clarence Thomas writing the majority opinion, and Justice Kagan writing the dissent.

The Court found that the 2023 Texas law did not run afoul of the First Amendment, in part because the state has an interest in protecting minors from harmful material. That part of the ruling was widely agreed upon. Where the issue lies is whether the specific law was well-tailored enough to not infringe on protected speech.

READ MORE: Louisiana Adults Must Now Show Drivers’ Licenses to Access Porn Online

Kagan and the other liberal justices disagreed on this point. She argued that while the state clearly has the right to declare certain speech obscene for minors and legally prohibit them from engaging with it, adults must still be allowed access. Kagan said that Friday’s ruling runs counter to cases brought before the Court “on no fewer than four prior occasions,” where the Court has “given the same answer, consistent with general free speech principles, each and every time.”

Kagan argued that the concept of “strict scrutiny” should have been applied to the Texas law, which requires the “least restrictive means of achieving a compelling state interest.” The ruling however, said that the ID requirement only hit the level of “intermediate scrutiny,” which does not require the state to answer the “least restrictive means” question.

“The majority’s opinion concluding to the contrary is, to be frank, confused. The opinion, to start with, is at war with itself. Parts suggest that the First Amendment plays no role here—that because Texas’s law works through age verification mandates, the First Amendment is beside the point. But even the majority eventually gives up that ghost. As, really, it must,” Kagan wrote.

She argued that the law would cause some people not to access these objectionable-to-minors websites, saying that people may not want to “identify themselves to a website (and maybe, from there, to the world)” as someone who enjoys pornography. The reference to “the world” refers to concerns raised by the Free Speech Coalition that the Texas law could leave citizens open to hackers if sites do not properly protect the identification information.

“But still, the majority proposes, that burden demands only intermediate scrutiny because it arises from an ‘incidental’ restriction, given that Texas’s statute uses age verification to prevent minors from viewing the speech. Except that is wrong—nothing like what we have ever understood as an incidental restraint for First Amendment purposes. Texas’s law defines speech by content and tells people entitled to view that speech that they must incur a cost to do so. That is, under our First Amendment law, a direct (not incidental) regulation of speech based on its content—which demands strict scrutiny,” Kagan wrote.

After the law passed, some pundits warned that if it were upheld, it could lead to other laws against content deemed objectionable. The Free Speech Coalition argued that porn can be the “canary in the coal mine of free speech,” and Harvard Law Professor Rebecca Tushnet agreed.

“If the Court is open to revisiting the First Amendment framework that structured the last 70 years or so of constitutional history, then many things will be up for grabs, including defamation law, political speech regulations, and compelled speech. Speech about abortion and LGBTQ issues would be the obvious next targets,” she said.

Image via Shutterstock

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Sotomayor Calls SCOTUS Ruling Upholding ‘Patently Unconstitutional’ Orders ‘Shameful’

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Justice Sonia Sotomayor warned that the Supreme Court’s Friday morning ruling that courts cannot tell the federal government not to enforce an executive order is a slippery slope.

The court ruled 6-3 along ideological lines in Trump’s favor in Trump v. CASA, Inc.. The case hinged on whether or not lower courts had the ability to issue injunctions stopping the federal government from following executive orders. In this case, the executive order in question would end birthright citizenship—a right enshrined in the 14th Amendment since 1868—for children born to undocumented immigrants in the United States.

The 14th Amendment lays out the rules granting citizenship. Section 1 begins “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”

The Court ruled that lower courts cannot issue a “universal injunction” against an executive order. Rather, individuals must sue for relief under an injunction. The ruling gives an example of an individual pregnant person suing to ensure citizenship for their child. The Court says that if the executive order is stopped against that individual, their “complete relief” will not be “any more complete” if the order applies to everyone.

“When a court concludes that the Executive Branch has acted unlawfully, the answer is not for the court to exceed its power, too. The Government’s applications for partial stays of the preliminary injunctions are granted, but only to the extent that the injunctions are broader than necessary to provide complete relief to each plaintiff with standing to sue,” the ruling read.

READ MORE: Over Two-Thirds of Voters In Favor of Birthright Citizenship as SCOTUS Set to Decide

In her dissent, Sotomayor called out the Trump administration for attempting to do an end-run around the Constitution and succeeding.

“It is now the President who attempts, in an Executive Order (Order or Citizenship Order), to repudiate birthright citizenship. Every court to evaluate the Order has deemed it patently unconstitutional and, for that reason, has enjoined the Federal Government from enforcing it,” she wrote.

“The Government does not ask for complete stays of the injunctions, as it ordinarily does before this Court. Why? The answer is obvious: To get such relief, the Government would have to show that the Order is likely constitutional, an impossible task in light of the Constitution’s text, history, this Court’s precedents, federal law, and Executive Branch practice. So the Government instead tries its hand at a different game. It asks this Court to hold that, no matter how illegal a law or policy, courts can never simply tell the Executive to stop enforcing it against anyone,” Sotomayor continued.

“The gamesmanship in this request is apparent and the Government makes no attempt to hide it. Yet, shamefully, this Court plays along.”

Sotomayor argues that the Trump v. CASA, Inc. ruling now opens the door for any rights in the Constitution to be stripped from Americans via executive order. She specifically says that the ruling could be used by a “different administration … to seize firearms from lawabiding citizens or prevent people of certain faiths from gathering to worship,” two frequent bugbears of the right.

“The majority holds that, absent cumbersome class-action litigation, courts cannot completely enjoin even such plainly unlawful policies unless doing so is necessary to afford the formal parties complete relief. That holding renders constitutional guarantees meaningful in name only for any individuals who are not parties to a lawsuit. Because I will not be complicit in so grave an attack on our system of law, I dissent,” Sotomayor wrote.

Justice Ketanji Brown Jackson wrote a concurring dissent, where she said she agreed with Sotomayor, but also called the ruling “an existential threat to the rule of law.”

“Focusing on inapt comparisons to impotent English tribunals, the majority ignores the Judiciary’s foundational duty to uphold the Constitution and laws of the United States. The majority’s ruling thus not only diverges from first principles, it is also profoundly dangerous, since it gives the Executive the go-ahead to sometimes wield the kind of unchecked, arbitrary power the Founders crafted our Constitution to eradicate,” Jackson wrote. “With deep disillusionment, I dissent.”

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