Don Siegelman and the Evil of a Political Prosecution

Our little corner of the blogosphere probably has produced as much coverage about the Don Siegelman case as any other spot on the Web. So our Schnauzer eyes and ears stay tuned for comments--informed and otherwise--about the case.

A common refrain we hear from the anti-Siegelman crowd goes something like this: "Well, the prosecution might have been politically motivated, but a jury found him guilty, so it doesn't really matter."

This, of course, ignores the fact that improper jury instructions were given--plus ample evidence that the judge was corrupt and the jury was tainted. But it misses the larger point. Under the law, it definitely does matter if a prosecution was politically motivated. In fact, such a prosecution desecrates one of our democracy's building blocks--the Fifth Amendment right to equal protection.

The U.S. Supreme Court has held "selectivity in the enforcement of criminal laws is, of course, subject to constitutional constraints." U.S. v. Batchelder, 442 U.S. 144 (1979).

The nation's highest court also has found that the Equal Protection Clause prohibits selective enforcement "based upon an unjustifiable standard such as race, religion, or other arbitrary classification." Oyler v. Boles, 368 U.S. 448 (1962).

Clearly, enforcement based on political affiliation falls under the kind of arbitrary classification that is prohibited by the Fifth Amendment. (Siegelman's Motion for a New Trial can be viewed at the end of this post.)

Federal courts generally have accepted the two-pronged test for selective prosecution set out in U.S. v. Berrios, 501 F. 2d 1207 (1974):

To support a defense of selective or discriminatory prosecution, a defendant bears a heavy burden of establishing, at least prima facie, (1) that, while others similarly situated have not generally been proceeded against because of conduct of the type forming the basis of the charge against him, he has been singled out for prosecution, and (2) that the government’s discriminatory selection of him for prosecution has been invidious or in bad faith, i.e., based upon such impermissible considerations as race, religion, or the desire to prevent his exercise of constitutional rights. These two essential elements are sometimes referred to as ‘intentional and purposeful discrimination.’

Appellate courts historically have been reluctant to override prosecutorial discretion and have established an assumption that a prosecutor has not violated equal protection. To overcome that, a criminal defendant must present "clear evidence to the contrary." United States v. Armstrong, 517 U.S. 456 (1996).

Can Siegelman meet this burden? Consider this passage from his Motion for a New Trial:

There is additional evidence of similarly situated individuals who were not prosecuted by the Republican-controlled Department of Justice:

a. Dr. Swaid N. Swaid donated $3,000 on July 16, 2002 to the gubernatorial campaign of Governor Riley. . . .  In November 2002, Governor Riley was elected to the Office of Governor for the State of Alabama. . . .  On December 19, 2002, after the election, Dr. Swaid contributed $10,000 to the gubernatorial campaign of Governor Riley. . . .  On January 20, 2003, Governor Riley was sworn into Office. . . .  In February of 2003, Governor Riley appointed Dr. Swaid as the Chairman of the Certificate of Need Board;

b. On August 17, 2001, Guice Slawson donated $50,000 to Governor Riley’s campaign. . . .  In April, 2003, Governor Riley appointed Guice Slawson as the Administrator of the Alabama Alcoholic Beverage Control Board; 

c. In 2008, Raymond Harbert of Harbert Management Company donated $10,000 to Governor Riley’s campaign. In March 2009, Harbert was appointed to the Auburn University Board of Trustees;

d. Michael Scanlon, a lobbyist convicted in the Abramoff lobbying scandal worked with Jack Abramoff to funnel millions of dollars from the Choctaw Indians into Alabama during the 2002 governor’s race according to the McCain Report. . . . An e-mail exchange between Abramoff and Scanlon on December 3, 2002 indicated that Abramoff had spoken with “Nell” (Rogers) of the Choctaws and that “she definitely wants Riley to shut down the Poarch Creek operation, including his announcing that anyone caught gambling there can’t qualify for a state contract or something like that. . . . ” According to a Birmingham News story dated December 9, 2004, the Poarch Creek Indians are complying with federal regulators who objected to two-thirds of their gaming machines. . . . The article quotes U.S. Attorney Leura Canary as stating, “the Poarch Creek tribe has been extremely cooperative.”

e. On December 19, 2005, Jim Hudson, the President of Hudson-Alpha Institute Biotechnology, along with Board Members Lonnie McMillan and Dr. Milton Harris, each gave $100,000 to the Alabamians for Biotechnology PAC. . . . On this same date, the Alabamians for Biotechnology PAC gave a contribution in the amount of $300,000 to the “Riley for Governor” campaign. . . .  In August 2005, Hudson-Alpha Institute announced that the State of Alabama had pledged $50 million to their project. . . .  Governor Riley was quoted in August of 2005 as saying “With a $50 million commitment from the state…”. On October 18, 2006, Jim Hudson gave $100,000 to the Alabamians for Biotechnology PAC. . . .  On October 18, 2006, the Alabamians for Biotechnology PAC gave $25,000 to the “Riley for Governor” campaign. . . .  On October 30, 2006, the Alabamians for Biotechnology PAC gave $20,000 to the Riley for Governor campaign;

f. According to an article published in the Mobile Press Register on April 21, 2008, “At least 86 individuals will enjoy access to Alabama Governor Bob Riley, thanks to their pledges of $40,000 each to a Republican fundraising committee designed to gain control of the Legislature. . . . ” The article goes on to say that “members of the Circle have pledged $10,000 a year over the next four years as part of the fundraising program called Campaign 2010. In return, the donors have been promised access to exclusive events and conference calls with Riley”.

That's at least six examples of similarly situated individuals who were not prosecuted for acts similar to those alleged in the Siegelman case. If Siegelman and codefendant Richard Scrushy were granted an evidentiary hearing, one can only imagine how much evidence they could gather to support their claims of selective prosecution based on political affiliation.

The Siegelman/Scrushy case might eventually come down to this: Is it more important that we protect the  of concept of prosecutorial discretion or that we protect individuals from abusive prosecutions? One is a legal doctrine created by the legal profession; the other is a constitutional guarantee. Which is more important?

More than 100 years ago, the U.S. Supreme Court warned about the dangers of rogue prosecutors who use their powers for improper reasons. In Yick Wo v. Hopkins, 118 U.S. 356 (1886), the court wrote:

Though the law itself be fair on its face, and impartial in appearance, yet, if it is applied with an evil eye and an unequal hand, so as practically to make unjust and illegal discriminations between persons in similar circumstances, material to their rights, the denial of equal justice is still within the prohibition of the constitution.

Do we still take that warning seriously? Do we still take the Due Process Clause seriously?

The outcome of the Siegelman case will tell us.

Siegelman--Motion for New Trial

Alabama's Long Bingo Nightmare Is Over, But We Still Need Accountability

Milton McGregor

One of the most embarrassing episodes in the history of the U.S. Department of Justice (DOJ) ended yesterday when a federal jury found that all defendants in the Alabama bingo trial were not guilty.

The jury clearly reached the correct verdict--and after two trials and a months-long, anti-bingo crusade led by former Governor Bob Riley--citizens might be tempted to say, "Whew, thank God that's over." But the public should resist such a response, no matter how understandable it might be. That's because officials who were responsible for bringing this bogus case should be held accountable, either through an internal DOJ investigation or a Congressional review. Better yet, we hope the defendants can uncover some uncomfortable truths, and seek significant damages, with one or more massive lawsuits--perhaps through the civil provisions under the Racketeer Influenced and Corrupt Organizations Act (RICO).

If any of this shines unflattering light on the Obama administration, so be it. The president has either adopted many of George W. Bush's wrong-headed notions on justice--or turned a blind eye on his predecessor's corrupt activities--so now it's time for Eric Holder and company to "enjoy" some scrutiny under a white hot light. If it costs Obama the 2012 election . . . well, tough beans. The president has repeatedly proven that he is not deserving of progressives' support anyway.

The Alabama bingo investigation/trial was a disgrace from the outset, and the public deserves answers on why millions of its dollars were wasted on a sideshow designed to help Alabama Republicans. Obama has had almost four years to do the right thing on the justice front--to return us to a nation governed by the rule of law--and he has failed at every turn. He and his "justice department" deserve to be exposed.

Why is this so important? Well, the bingo trial was unconstitutional on its face. In fact, it might be the most blatant example of a political prosecution in the history of our republic--and it happened under a Democratic administration. The thought of a Mitt Romney presidency makes me want to puke, but I don't see how he could be worse than Obama has been on justice issues.

Multiple rulings from the U.S. Supreme Court have held that political prosecutions are prohibited by the Fifth and Fourteenth Amendment right to equal protection. Should we stand for federal prosecutors who ignore key provisions of the U.S. Constitution? Should we support an administration that countenances such unlawful activity? No, we should not--and that's why an investigation is needed.

As a sidebar issue, someone should make sure that former Alabama Congressman Artur Davis no longer has access to computers, microphones, Web accounts, cameras, or any other communication devices. That will save Davis, who long ago reached the status of "utterly irrelevant," from making the kinds of farcical statements he issued in the wake of yesterday's verdicts. Why did Artur Davis even care about the outcome of the bingo trial? I have no idea; on the surface, it didn't appear to involve him at all.

Before we touch on Artur Davis, let's get to the heart of what essentially was an easy case. The government charged that certain pro-bingo forces--the most notable being Montgomery gambling magnate Milton McGregor--bribed state legislators to vote for a bill that would boost electronic bingo. At the heart of the case was legislation that clearly had supporters and opponents--those who were pro-bingo and those who were anti-bingo.

The overarching question at the heart of the bingo trial should have been this: Why did federal investigators target only the pro-bingo side, made up mostly of Democrats? Why did the feds tape phone calls made only by pro-bingo folks, while ignoring the activities of anti-bingo folks?

The answer? The feds were not interested in prosecuting crimes; they were interested in prosecuting certain people. That mindset was at the heart of the unlawful Don Siegelman prosecution, and it is forbidden by our constitution. We examined the issue in a post titled "Don Siegelman and the Evil of a Political Prosecution":

The U.S. Supreme Court has held "selectivity in the enforcement of criminal laws is, of course, subject to constitutional constraints." U.S. v. Batchelder, 442 U.S. 144 (1979).

The nation's highest court also has found that the Equal Protection Clause prohibits selective enforcement "based upon an unjustifiable standard such as race, religion, or other arbitrary classification." Oyler v. Boles, 368 U.S. 448 (1962).

Clearly, enforcement based on political affiliation falls under the kind of arbitrary classification that is prohibited by the Fifth Amendment. . . . 

The nation's highest court has spelled it out for prosecutors, so there is no excuse for their actions in the bingo case:

Federal courts generally have accepted the two-pronged test for selective prosecution set out in U.S. v. Berrios, 501 F. 2d 1207 (1974):

To support a defense of selective or discriminatory prosecution, a defendant bears a heavy burden of establishing, at least prima facie, (1) that, while others similarly situated have not generally been proceeded against because of conduct of the type forming the basis of the charge against him, he has been singled out for prosecution, and (2) that the government’s discriminatory selection of him for prosecution has been invidious or in bad faith, i.e., based upon such impermissible considerations as race, religion, or the desire to prevent his exercise of constitutional rights. These two essential elements are sometimes referred to as ‘intentional and purposeful discrimination.’

U.S. District Judge Myron Thompson deserves credit for handling the bingo trial in a fashion that led to a just outcome. But he should have done more, by calling out the government for "intentional and purposeful discrimination." At the outset, Judge Thompson should have said something like this:

This case revolves around a political battle over certain proposed legislation, which had both supporters and detractors. If you were looking to prosecute crimes connected to this legislation, you should have examined the behavior on both sides. In other words, there are individuals who are 'similarly situated' to the defendants you have charged with crimes. That the prosecution has failed to investigate these similarly situated individuals means you have failed the test set out in Oyler and other U.S. Supreme Court cases. I am dismissing this prosecution on the grounds that it is unconstitutional.

I'm not a lawyer, and I don't pretend to be an expert on criminal procedure in federal courts. But I'm pretty sure Thompson had the authority under the law to make such a finding. Lawyers for the defendants should have filed motions, asking him to make such a finding. What if Thompson had taken this step? Justice would have been served, huge amounts of time and money would have been saved, and prosecutors would have been put on notice that politically motivated cases would not be tolerated in the Middle District of Alabama--and hopefully not anywhere else, either.

As for Artur Davis, perhaps he should join the circus. Get a load of his clownish reaction to yesterday's verdicts:

It’s a huge setback for anyone who wants to root public corruption out of Alabama. Tragically, an Alabama jury was not bothered by evidence that a powerful interest group brazenly tried to buy votes with campaign contributions; that same jury was not bothered by evidence that legislators changed their votes solely because of those contributions; and that same jury was unfazed by the fact that the gambling lobby obviously viewed the legislature as a for sale, for profit institution.

I hope that the fact that this jury got it so wrong will not deter the Attorney General from his aggressiveness in pursuing corruption by current and former officials, and I hope that the new Republican majority understands that its calling now is to pass strict limits on campaign spending and instant disclosure rules so that money is limited and identified in real time.

Lastly, the Democratic Party is now officially the state’s gambling party. Alabamians who want another economic future and real political reform should know that the party offers them no home and they should take their votes and their goals for the state elsewhere.

Artur Davis shows no concern about violations of fundamental constitutional rights. Instead, he displays only a warped sense of political gamesmanship. He takes the outcome of a criminal trial and uses it to bash the Alabama Democrats who soundly rejected him in November 2010. It's hard to get more loathsome than that.

Many citizens, I suspect, are smart enough to know that Artur Davis is a political buffoon; they don't need to take their cues from a bitter has-been. They should direct their anger in the right direction--toward the U.S. Department of Justice. And they should demand, in the wake of the Alabama bingo trial, that heads start to roll.

In the meantime, we hope the bingo defendants seek compensation through the civil justice system. Immunity of various sorts might protect many of those responsible for the prosecution. But we suspect there might be ways around those hurdles. Joe Espy, one of McGregor's attorneys, hinted yesterday that he will look at those options:

Espy said they were going to seriously look at avenues to try to recover some of that money McGregor had to spend in his defense.

He said they would also look at possible legal action against players who participated in the process, but would not specify who he was referring to.

I'm betting that certain individuals connected to the bingo prosecution are taking steps to hide/protect their assets. And that probably includes some prominent Republicans, both in Alabama and beyond. It might also include some pro-Obama, elitist Democrats.

If justice still means anything in our so-called democracy, certain folks will be losing significant assets in the not-too-distant future. It couldn't happen to a more deserving bunch.

Flashing Brassieres and Other Hazards in the Workplace

Why do we have so many employment lawsuits in the United States? I'm starting to think it's simply a reflection of who we are: We have quite a few knuckleheads in the population, which means we have knuckleheads in the workplace. And knuckleheads lead to workplace problems.

Just ask Melissa Blessing, a Perryville, Missouri, woman who worked at a chain of hardware and building-supply stores in southern Missouri and Illinois. Her brassiere, and a number of knuckleheads, helped land her in the middle of a court case.

Blessing, the only woman in a lumberyard, was the target of regular pranks from her male coworkers. One day, the fellas put up a sign that read "Show me your boobies, please."

When they made a special point to show Blessing the sign, she tried to walk away. But the taunting continued, and she finally flashed a glimpse of her bra in an effort to make it stop.

That got her fired, while the men involved were not disciplined. For good measure, a man replaced her.

After a lengthy court battle, Blessing prevailed on discrimination and sexual harassment claims. But you can only shake your head at how such a situation ever was allowed to develop--and that the company defended its handling of the matter, probably spending tens of thousands of dollars in legal fees.

Makes me think it was a miracle that I worked at UAB for 19 years before coming across a subset of knuckleheads who were corrupt enough to cheat me out of my job.

Here is a summary of the court's finding in the Blessing case:

Appeal from the Circuit Court of Cole County. Buchheit, Inc., Appellant, v. Missouri Commission on Human Rights, Respondent, No. 65985 (Mo. App. W.D., February 20, 2007, Breckenridge, J.

Buchheit terminated Melissa Blessing after an incident in which she briefly showed her brassiere to male co-workers after they encouraged her to do so. Blessing filed a charge of discrimination with the Missouri Commission on Human Rights (“MCHR”) claiming she was discriminated against on the basis of her gender. MCHR agreed with her, finding she had established a prima facie case of gender discrimination and that the reasons Buchheit put forth for terminating her were pretextual. Having found in her favor, MCHR awarded her $1,644.00 in lost wages and $4,000.00 in non-economic damages.

Held: Affirmed. After establishing that Buchheit had appealed from a final judgment, the court of appeals went about affirming MCHR's findings and conclusions. The facts of the underlying case are rather involved, but ultimately, the court of appeals, in a long opinion, emphasized Buchheit had not been entirely consistent in its testimony about handling and disciplining Blessing. Basically, a spirited incident occurred, in which Blessing was the only female employee. She was the only one who exposed herself, as Buchheit maintained, in that she briefly showed a part of her brassiere. Buchheit claimed the other male employees were not similarly situated to her because they had not exposed themselves. The court of appeals agreed with MCHR that all the employees who participated in this incident were similarly situated, so MCHR was justified in finding Blessing had been treated differently because of her gender. None of the male employees were terminated over this incident.

Was justice served in this case? Not from this Schnauzer's perspective. I'm amazed that Blessing didn't receive far more than roughly $5,600 in damages. Makes me think the company got off way too easily. Also makes me think the Missouri Commission on Human Rights is a worthless bureaucracy that is high-minded in name only.

Drummond's request for immediate appeal in Roberson case should be swiftly denied because Alabama Supreme Court already has ruled in the negative on central question presented

 

Drummond Company's request for an interlocutory appeal in David Roberson's $75-million lawsuit should be dead on arrival. In fact, it should not even be certified for an appeal at the trial-court level, and its request for a stay in discovery certainly should not be granted. Why?

Drummond states such an immediate appeal is proper, in part because:

THERE ARE CONTROLLING QUESTIONS OF LAW AS TO WHICH THERE ARE SUBSTANTIAL GROUNDS FOR DIFFERENCE OF OPINION.

That, however, is not true. The Alabama Supreme Court already has stated its opinion on the central issue in the request for interlocutory appeal -- and it is not favorable to Drummond. In fact, the high court already has thoroughly shot holes in Drummond's case, so there is no difference of opinion -- and  no basis for an interlocutory appeal.

What is that central question Drummond seeks to place before the high court? Here's how it is stated in the company's brief:

Whether a  corporation, which is not itself a legal services provider, may avail itself of the ALSLA statute of limitations where its alleged liability is based on the conduct of its general counsel, who is a legal services provider?

The Alabama Supreme Court already has answered that question in a case styled Alabama Educ. Ass’n v. Nelson, 770 So. 2d 1057 (Ala. 2000). Nelson involved a teacher's efforts to sue AEA under the Alabama Legal Services Liabiliy Act (ALSLA) because of alleged legal malpractice by one of the association's in-house lawyers. That appears to be analogous to Roberson's claims related to Drummond in-house counsel Blake Andrews -- and the company's efforts to seek protection of the ALSLA and its tight statute-of-limitations, which could make the Roberson lawsuit time-barred.

But Drummond has a slight problem -- it admits that it is not a legal-services provider, and the Alabama Supreme Court held in Nelson that the ALSLA does not apply in such situations. In essence, the state's high court found in Nelson that ALSLA does not apply to the AEA -- which, like Drummond, is not a legal-services provider -- so it could not apply to Drummond. That means Roberson's complaint is not time-barred, and Drummond's request for interlocutory appeal should be sent to the dead letter office. Here is the key finding in Nelson:

        We note that throughout the ALSLA, the language used by the Legislature indicates             that the Act was intended to apply to lawyers and law firms. For example, §                         6-5-572(3)(a) sets out the "standard of care" a "legal service provider" is to observe:

"The standard of care applicable to a legal service provider is that level of such reasonable care, skill, and diligence as other similarly situated legal service providers in the same general line of practice in the same general locality ordinarily have and exercise in a like case."

        What standard of care would be applied to the AEA under this statute? We know of no         other "legal service provider" that, in regard to the AEA, might be considered to be             "similarly situated." Clearly this section contemplates that the ALSLA is to be                     applied  only to lawyers and to law firms— including professional corporation                    associations,  and partnerships—whose membership is composed solely of lawyers             acting for the  purpose of providing legal services.

        The plain language of § 6-5-572(2), as well as that of the other portions of the                    ALSLA, clearly indicates that the Legislature intended for the ALSLA to apply only            to lawyers and to entities that are composed of members who are licensed to practice         law within the State of Alabama. Because the AEA is not a lawyer or an entity whose         membership is composed of lawyers, it cannot be held liable under the ALSLA.

How might that last sentence be adjusted to fit Roberson v. Drummond? We will go with this:

Because Drummond is not a lawyer or an entity whose membership is composed of lawyers, it cannot avail itself of the ALSLA statute of limitations.

 That is not the only reason Drummond's request for interloctory appeal should be quickly rejected. We will address another one in an upcoming post.

Drummond's request for interlocutory appeal in $75-million Roberson lawsuit is soundly rejected, proving our predictions come true every now and then

Tamara Harris Johnson

 

 

Like a lot of media types, we engage in prophecy from time to time. Political and sports coverage are filled with it, and making predictions is fun -- even when your track record, like ours, is somewhere in the "mixed bag" category -- where some predictions prove correct, some are off base, a few are close, others not so close.

But we are here today to note that, by golly, we recently nailed one -- more or less took an Aroldis Chapman fastball and parked that sucker in the cheap seats. And it came on an important subject -- the $75-million lawsuit from David Roberson against his former employer, Drummond Company. And it's all tied to a gross case of environmental racism -- the North Birmingham Superfund bribery scandal.

So, what was our prediction? It came in a post dated 11/16/20, and here's how we put it:

Drummond Company's request for an interlocutory appeal in David Roberson's $75-million lawsuit should be dead on arrival. In fact, it should not even be certified for an appeal at the trial-court level, and its request for a stay in discovery certainly should not be granted.

And what do you know, that is exactly what happened. Jefferson County Circuit Judge Tamara Harris Johnson, bless her heart, agreed with my assessment and essentially sent Drummond's request to the dead letter office. This is from Johnson's order issued last Friday (11/20/20). (The full order, which is brief, is embedded at the end of this post.):

This matter comes before the Court on Defendant Drummond Company, Inc.'s Motion to Certify Questions for Interlocutory Appeal and Motion to Stay Discovery Pending That Appeal and Plaintiff's Objection to Drummond Company's Motion to Stay Discovery and to Certify Questions for Interlocutory Appeal. . . . The prerequisites of such an Order, as is requested by the Defendant Drummond, requires a certification by this Court that, in this Court's opinion, the requested interlocutory order involves a controlling question of law as to which there is substantial ground of difference of opinion, that an immediate appeal from the Order, as is requested by the Defendant Drummond from the Court's order would materially advance the ultimate termination of the litigation, and that the appeal would avoid protracted and expensive litigation.

This Court cannot certify that it shares the necessary opinion to further the herein request for an interlocutory appeal. The Court further has considered the fact that discovery was stayed, pending a ruling on the Defendants' Motions to Dismiss. The Court FINDS that any further stay of Discovery in this matter is unwarranted.

In the interest of full disclosure, this was an easy call for me to make--but, of course, I couldn't let an opportunity pass to crow about being right -- and it surely was even easier for Johnson. From our 11/16/20 post:

What is that central question Drummond seeks to place before the high court? Here's how it is stated in the company's brief:

Whether a  corporation, which is not itself a legal services provider, may avail itself of the ALSLA statute of limitations where its alleged liability is based on the conduct of its general counsel, who is a legal services provider?

        The Alabama Supreme Court already has answered that question in a case styled Alabama Educ.             Ass’n v. Nelson, 770 So. 2d 1057 (Ala. 2000). Nelson involved a teacher's efforts to sue AEA                 under the Alabama Legal Services Liabiliy Act (ALSLA) because of alleged legal malpractice by          one of the association's in-house lawyers. That appears to be analogous to Roberson's claims                 related to Drummond in-house counsel Blake Andrews -- and the company's efforts to seek                     protection of the ALSLA and its tight statute-of-limitations, which could make the Roberson                 lawsuit time-barred.

        But Drummond has a slight problem -- it admits that it is not a legal-services provider, and the                Alabama Supreme Court held in Nelson that the ALSLA does not apply in such situations. In                essence, the state's high court found in Nelson that ALSLA does not apply to the AEA -- which,            like Drummond, is not a legal-services provider -- so it could not apply to Drummond. That means         Roberson's complaint is not time-barred, and Drummond's request for interlocutory appeal should         be sent to the dead letter office. Here is the key finding in Nelson:

        

            We note that throughout the ALSLA, the language used by the Legislature indicates             that the Act was intended to apply to lawyers and law firms. For example, §                        6-5-572(3)(a) sets out the "standard of care" a "legal service provider" is to                        observe:

"The standard of care applicable to a legal service provider is that level of such reasonable care, skill, and diligence as other similarly situated legal service providers in the same general line of practice in the same general locality ordinarily have and exercise in a like case."

        What standard of care would be applied to the AEA under this statute? We know of no         other "legal service provider" that, in regard to the AEA, might be considered to be             "similarly situated." Clearly this section contemplates that the ALSLA is to be                     applied  only to lawyers and to law firms— including professional corporation                    associations,  and partnerships—whose membership is composed solely of lawyers             acting for the  purpose of providing legal services.

 If the AEA does not qualify as a "legal services provider," it's hard to imagine how a coal-mining company, such as Drummond, could. And that's because it doesn't -- based on Alabama Supreme Court precedent.

Now that we've established that, discovery in the Roberson lawsuit can fire back up.

Stephanie Flowers Patel, daughter of Alabama political columnist, faced three criminal charges involving drug possession and fraud, but escaped jail time on all three

Stephanie Flowers Patel

 

The adult daughter of Alabama political columnist Steve Flowers, who has called for Donald Watkins to be jailed for his aggressive reporting on the Southern Company/Alabama Power scandal, recently has been arrested and charged in two cases of felony drug possession, plus one charge of insurance fraud. In all three instances, Stephanie Flowers Patel managed to escape a sentence that involved incarceration, according to a report at DonaldWatkins.com. Writes Watkins, a longtime Alabama attorney, under the headline "How Steve Flowers’ Daughter Avoided Prison in Felony Drug, Fraud Cases":

Stephanie Flowers Patel is the 40-year-old daughter of Internet blogger and political columnist Steve Flowers. She had a recent experience in Alabama's criminal-justice system that highlights a very troubling aspect of the system.

On March 15, 2023, Steve Flowers used his website to viciously attack me for posting news articles about Matrix owner Joe Perkins, Alabama Power Company, the Southern Company, former U.S. Senator Richard Shelby (R-Alabama), and those who worked in concert with them to perpetuate a multistage, long-running, racketeering enterprise and massive accounting fraud scheme at the Southern Company and its affiliates.

My articles apparently miffed Flowers. In his March 15, 2023, Op-ed article, Flowers called me a “disgraced, fraudulent criminal conman” who is "brazen," "arrogant," "non-repentant," and a "threat to society." The first time I saw this combination of words in print to describe a black man was when the FBI used them in an early 1960s internal memo to describe my Sunday school teacher, church pastor, and BTU instructor, Dr. Martin Luther King, Jr.

Flowers also demanded that I be jailed simply for writing and publishing news articles that are critical of the political oligarchs who run Alabama.

Flowers concluded his article by reminding his readers that his "forefathers" did not confer First Amendment rights on people of my ancestry. In fact, Flowers' forefathers conferred absolutely NO rights of any kind on blacks, whether enslaved or freed.

How did Flowers come to attack Watkins so viciously for exercising his First Amendment rights, the same rights Flowers uses in publishing his newspaper column? The answer to that question, Watkins states, can be traced to Joe Perkins, founder and owner of the Montgomery-based Matrix LLC "dirty tricks" consulting firm:

Flowers was called into action as a media "hit man" by his close friend and ally, Joe Perkins -- the man who is at the epicenter of the Southern Company’s pervasive racketeering enterprise and its resulting criminal investigations.

In the process of condemning me and urging my imprisonment, Steve Flowers failed to mention Stephanie’s recent criminal cases. I want to use Stephanie’s cases for the sole purpose of spotlighting a growing problem within Alabama’s criminal-justice system -- the disparate treatment of similarly-situated accused persons.

We have no evidence that Steve Flowers pulled strings to help his daughter escape a legal jam. But it seems likely that Stephanie Flowers Patel's ties to the worlds of politics and journalism did not hurt her case. Writes Watkins:

On June 8, 2019, Stephanie Flowers Patel was arrested and charged with two felony cases of possession of illegal drugs. The cases were docketed in the Jefferson County, Alabama District Court (Bessemer Division) as State of Alabama v. Patel Stephanie Flowers, Case Nos. DC-2019-002050 and DC-2019-002051.

On January 28, 2020, Stephanie was arrested, again, and charged with one felony count of insurance fraud. The case was docketed in the Jefferson County, Alabama Circuit Court (Bessemer Division) as State of Alabama v. Patel Stephanie Flowers, Case No. CC-2020-000024.

On March 11, 2020, Stephanie was sentenced to a pretrial diversion program on the drug charges in Case Nos. DC-2019-002050 and DC-2019-002051. This judicial action allowed her to avoid imprisonment. On July 14, 2020, Stephanie's drug cases were dismissed.

On October 6, 2020, Stephanie entered a plea to the district attorney's Information (or Complaint) for the insurance-fraud case. The Court accepted her plea deal. On October 27, 2020, Stephanie was sentenced to pretrial diversion on the fraud charge. Once again, Stephanie escaped imprisonment.

Steve Flowers, himself, was the beneficiary of a generous pretrial diversion program. He entered the program after his arrest in 2007 on domestic-violence and criminal-mischief charges in Florida, even though his case involved allegations of violent behavior. After completing the program, Flowers’ criminal charges were dismissed.

Would the outcomes in the Stephanie Flowers Patel matters have been different for a defendant without connections? Watkins, it seems, suspects the answer is yes:

White first-time, non-violent offenders like Stephanie Flowers Patel are routinely admitted into pretrial diversion programs, while black first-time, non-violent offenders from low income socioeconomic backgrounds with similar charges are often denied admission to these programs.

Interestingly, when actor Jussie Smollett, who is black, was admitted in 2019 into a pretrial diversion program in Chicago, it created a firestorm of controversy from the privileged white community that routinely benefits from these programs. Smollett was charged with filing a false police report, a low-level Class 4 felony.

Stephanie Flowers was indicted on felony fraud and drug charges. There was no public outcry when she was admitted to Jefferson County’s pretrial diversion program in all three cases. After all, Stephanie is Steve Flowers' daughter, and he is "Alabama’s leading political columnist" whose "weekly column appears in more than 60 Alabama newspapers."

Hopefully, Steve Flowers did not direct any of his fury at Stephanie for the fraudulent conduct alleged in her indictment and criminal complaints. Understandably, Flowers did not publicly condemn Stephanie’s alleged possession of drugs while he was scolding other similarly situated drug offenders in his Op-ed articles.

What is more, Steve Flowers has never railed against the privileges afforded to the children of powerful white politicians in Alabama who have gained access to pretrial diversion and “First Chance” programs up to nine times for a single defendant in serial drug-related cases.

This glaring disparate treatment in Alabama's criminal-justice system must come to an end. Every accused person should be treated the same and should be afforded the same opportunity for pretrial diversion.

What About the Motives of Prosecutors In the Alabama Bingo Trial?

Myron Thompson

A federal judge last week correctly pointed out the impure motives of Republican legislators who served as witnesses in the Alabama bingo trial.

U.S. District Judge Myron Thompson also had a point when he stated in a new order that a prominent defendant had financial incentives to commit acts of bribery.

But Thompson ignored the most important question: What about the motives of federal prosecutors who launched a clearly flawed case in the first place?

We do have some interesting news on that front. The Montgomery Advertiser reports that local prosecutors Louis Franklin and Steve Feaga have been removed from the bingo-trial team. That means the case will be handled totally by Washington, D.C.-types on the second go-around.

That, however, does not address the big question about the prosecutors--and Thompson did not address it in last week's order either. (See the full order below.)

Yes, Sen. Scott Beason (R-Gardendale) and Rep. Benjamin Lewis (R-Dothan) revealed they were driven not by a desire to clean up corruption in Montgomery, but by racist thinking and political opportunism. And yes, VictoryLand owner Milton McGregor was under the kind of financial duress that could lead a man to cross the boundary from lawful lobbying to unlawful bribery.

But regardless of what one might think about Beason, Lewis, and McGregor, they would not have been in position to commit questionable acts if federal investigators and prosecutors had not launched a bogus case to begin with.

The important questions in the Alabama bingo trial are as follows:

* What motivated federal prosecutors to bring a case that was so flawed it produced zero convictions the first time around?

* Why do federal prosecutors seem determined to retry the case on issues where the original jury was deadlocked?

* What hugely important constitutional protections did the bingo prosecutors violate?

That last question represents the "big enchilada" because it goes to the heart of the political prosecutions that started under the George W. Bush administration and have continued under the Barack Obama "justice" department.

That last question goes to the heart of the Don Siegelman case in Alabama, the Paul Minor case in Mississippi, the Cyril Wecht case in Pennsylvania, the firings of U.S. attorneys from one end of the country to the other . . . well, you get the idea--it's a big deal.

Which makes us wonder why Myron Thompson doesn't raise it? Here's our best guess: Myron Thompson is a lawyer, and the prosecutors are lawyers--and lawyers are duty bound by the unwritten rules of their corrupt tribe to protect one another. That's why, we suspect, Myron Thompson feels free to rip into non-lawyers such as Scott Beason and Milton McGregor. But question the motives of federal prosecutors? It's the rare judge who will do that. And Myron Thompson is not that kind of ballsy judge.

In his order, Thompson does briefly touch on the motives of prosecutors. But he does not do it in any substantive way:

To be absolutely clear, there is no indication whatsoever that the prosecutors in this case condoned or shared any of the biases of their cooperating witnesses. But eliminating bribery will treat only one symptom of political corruption in this State. To cure the larger disease, it is essential to address with equal force the politics of racial prejudice and exclusion.

Why is there "no indication whatsoever" that prosecutors were driven by biases? Because no one--including Thompson--has scrutinized them.

The problem with the Alabama bingo prosecution has been evident from the outset: At the heart of the case were efforts by lobbyists to influence legislators on bingo-related bills. Evidence shows that the lobbying was a two-way street--some influence peddlers favored electronic bingo, others were against it.

But prosecutors scrutinized only the actions of those who were for electronic bingo. God only knows how many acts of bribery and fraud were committed by anti-bingo forces. The public will never know about those because they did not fit into the prosecutors' agenda.

That, by definition, is a political prosecution--and the Fifth Amendment of the U.S. Constitution prohibits it. Judge Thompson surely knows that. So why is he ignoring the issue?

We have not ignored the issue here at Legal Schnauzer. In fact, we faced it head on in a post titled "Don Siegelman and the Evils of a Political Prosecution." Here are the basics:

The U.S. Supreme Court has held "selectivity in the enforcement of criminal laws is, of course, subject to constitutional constraints." U.S. v. Batchelder, 442 U.S. 144 (1979).

The nation's highest court also has found that the Equal Protection Clause prohibits selective enforcement "based upon an unjustifiable standard such as race, religion, or other arbitrary classification." Oyler v. Boles, 368 U.S. 448 (1962).

Clearly, enforcement based on political affiliation falls under the kind of arbitrary classification that is prohibited by the Fifth Amendment.

Here are the specifics:

Federal courts generally have accepted the two-pronged test for selective prosecution set out in U.S. v. Berrios, 501 F. 2d 1207 (1974):

To support a defense of selective or discriminatory prosecution, a defendant bears a heavy burden of establishing, at least prima facie, (1) that, while others similarly situated have not generally been proceeded against because of conduct of the type forming the basis of the charge against him, he has been singled out for prosecution, and (2) that the government’s discriminatory selection of him for prosecution has been invidious or in bad faith, i.e., based upon such impermissible considerations as race, religion, or the desire to prevent his exercise of constitutional rights. These two essential elements are sometimes referred to as ‘intentional and purposeful discrimination.’

What does this mean in everyday lingo? Perhaps it best can be explained by looking at the Siegelman case.

The record is clear that Siegelman and former HealthSouth CEO Richard Scrushy violated no law because an explicit quid pro quo ("something for something" agreement) was not present--and federal judge Mark Fuller gave improper jury instructions on that point of law. But even if the jury instructions had been correct--and the evidence had shown an unlawful agreement--the Siegelman prosecution still would have been unlawful. That's because prosecutors did not pursue "similarly situated" individuals who had engaged in roughly the same conduct. In legal terms, prosecutors engaged in "intentional and purposeful discrimination" against Siegelman and Scrushy--the defendants were "singled out."

Prosecutors are engaging in the same behavior against McGregor and the other bingo defendants.

Judge Myron Thompson got some things right in last week's order. But he did not even address the most important issue of all.


Bingo Order--GOP Racists

Confusion reigns over midnight order in deportation case as SCOTUS produces muddled rulings, Trump admin makes nonsensical arguments, and Alito gripes

Alito and Thomas: The dissenters (AFP)

The U.S. Supreme Court (SCOTUS), in a ruling released early Saturday morning, placed a temporary pause on the Trump administration's efforts to deport immigrants residing in the United States. At the heart of the current controversy are Venezuelan nationals living mostly in certain parts of Texas. Both the SCOTUS order and the administration's response to it are  deeply flawed, leaving many questions about what might be ahead. Under the headline "What to know about the Supreme Court’s midnight Alien Enemies Act order," CNN's John Fritze and Devan Cole write: 

Less than two weeks after the Supreme Court allowed President Donald Trump to use a controversial 18th century wartime authority to speed deportations, the issue has rocketed back to the justices in a second short-fuse appeal with enormous potential consequences.

The situation was entirely foreseeable.

After handing down an opaque 5-4 order earlier this month that allowed both sides to claim victory, the nation’s highest court is being asked for a second time to halt the administration from using the Alien Enemies Act (AEA). That review will take place as lower courts begin to wrangle over what kind of notice the government must provide to those targeted under the act and what steps the migrants can take to fight it.

The court's order was unclear and muddled, and in a case involving basic human rights, no one should be surprised that Clarence Thomas and Samuel Alito jointed in dissent -- perhaps because both were up past their nap times. Fritze and Cole report that the whole process was a jumbled mess:

In a rare overnight order handed down by the Supreme Court early Saturday morning, a majority of justices blocked the Trump administration from deporting a group of immigrants in Texas. Two conservatives — Justices Clarence Thomas and Samuel Alito — dissented from the decision.

The brief order did not explain its reasoning. The court ordered the Trump administration to respond to the emergency appeal “as soon as possible,” which it did later Saturday. In the meantime, the court said, “The government is directed not to remove any member of the putative class of detainees from the United States until further order of this court.”

The Trump administration responded later Saturday, telling the Supreme Court it wants the authority to remove the Venezuelans detained in Texas under laws other than the controversial Alien Enemies Act while the litigation over their potential deportations continues.

And the Supreme Court signaled it is likely to say more in coming days or weeks about what will happen to the migrants at the center of several fast-moving court cases over the Alien Enemies Act playing out in courtrooms in New York, Colorado, and Texas.

The White House on Saturday trained its attention on the lawsuits, rather than the Supreme Court itself.

The administration's "reasoning" in legal arguments has been well short of airtight. CNN provides examples:

“President Trump promised the American people to use all lawful measures to remove the threat of terrorist illegal aliens,” White House press secretary Karoline Leavitt said, adding, “We are confident in the lawfulness of the administration’s actions.”

The White House has alleged that the people it has deported under the act are members of the Venezuelan Tren de Aragua gang, but evidence proving as much has been scant. Government lawyers have cited tattoos on immigrants or clothing linked to gangs in court papers to allege criminality.

What are the points Karoline Leavitt is trying to make? (1) Trump promised the American people to "use all lawful measures" to remove the threat of "terrorist illegal aliens"; (2) Is a campaign promise supposed to have something to do with legal proceedings before the nation's highest court? How is one connected to the other? (3) If  Trump vowed to use "all lawful measures" to boot migrants back over the border, why is he doing it without due process? Does the White House think due process is not part of U.S. law? (4) If Karoline Leavitt is confident of the lawfulness of the admin's actions . . . well, so what? Leavitt has proven time and again to know precious little about the law, so any confidence she might have is irrelevant to these legal proceedings; (5) The administration for weeks has been citing tatoos and certain types of clothing as proof someone is a terrorist -- and Trumpers still are using that same tired argument. It isn't aging well. Here is more from CNN:

An uncertain order

The Supreme Court issued a murky, unsigned order on April 7 in another emergency appeal dealing with the Alien Enemies Act, a 1798 law Trump invoked to bypass the regular process required to remove certain people in the country illegally.

The court technically allowed the administration to continue to use the controversial law — a win for Trump. And it blocked a key legal pathway civil rights groups were attempting to use to challenge Trump’s invocation of the law so they could shut down its use wholesale.

At the same time, the court said migrants subject to deportation under the act were entitled to notice and an opportunity to challenge their removal through federal habeas corpus petitions — suits brought by people who claim they are being detained by the government unlawfully — marking at least a partial win for migrants.

How much notice? The court didn’t say. How to reconcile the fact that habeas petitions are typically filed by prisoners to seek release from detention, not to halt deportations? Near silence. And what about the more than 200 Venezuelans who were already rushed onto planes and deported to El Salvador? Not clear.

Thanks to SCOTUS' unwillingness to use clear language in its orders, litigants have been  flying blind. From CNN:

To be sure, the Supreme Court is often reticent to get into details on its emergency docket — and for good reason. Often the factual record is uncertain. And the justices are usually eager to avoid changing the law without a more thorough briefing and oral argument.

But the April 7 decision, perhaps prudent in its caution, nevertheless gave Trump a ton of wiggle room. The White House took all of it, claiming complete victory and starting the process of relying on the act again.

Following the Supreme Court’s lead, the American Civil Liberties Union filed a series of habeas lawsuits seeking to protect identified clients as well as “similarly situated” Venezuelans who could potentially be targeted under the Alien Enemies Act. Several lower courts — including one in New York and another in Texas — issued temporary orders blocking the administration from deporting people under the act while it considers the cases.

Those orders protect only migrants in the geographic regions covered by the federal courts in play.

If English-speaking Americans are confused by these proceedings, imagine what it's like for potential deportees who are receiving government notices written in English -- even though many of them speak only Spanish. Fritze and Cole write:

How we got here

This week, immigrant rights groups said a number of Venezuelan detainees in northern Texas not covered by any earlier orders began receiving notice from the government that they are subject to deportation under the act.

The ACLU has said those notices — now required by the Supreme Court — were in English, indecipherable to at least some of the Spanish-speaking detainees. The notices, the ACLU said, did not indicate how the people who received them could challenge their removal. The group said the detainees faced “imminent” removal, despite the Supreme Court’s direction that they have enough time to seek an independent review of their case.

Two immigrants filed a habeas petition in a federal district court in Abilene, Texas, on Wednesday, seeking a temporary order blocking their deportation and the removal of “similarly situated” people held at the Bluebonnet Detention Center in Anson, Texas.

US District Judge James Hendrix, whom Trump nominated to the bench in his first term, denied the request for the two migrants, noting the government had “answered unequivocally” that it did not intend to remove them, so they were not at immediate risk of deportation.

Hendrix said he “reserves decision” on whether the ACLU could protect a wider class of unknown migrants but said he would order written arguments on that question in “due course.”

Whether the groups can establish a “class” of migrants affected by the case is a technical but important point: Without a class, each migrant who receives notice of potential removal will have to file their own habeas petition and fight their case individually. Habeas petitions are notoriously difficult to win in federal court, and it will be a challenge for most immigrants to obtain lawyers.

Unsatisfied with the result — and perhaps untrusting of the Trump administration to keep its word — the ACLU appealed to the New Orleans-based 5th US Circuit Court of Appeals. A panel of appellate court judges in the conservative court denied the request.

The migrants then turned to the Supreme Court on Friday, filing their emergency appeal with Alito, who handles quick-turn appeals from the 5th Circuit.

Notably, the Supreme Court did not technically grant the ACLU’s request in its middle-of-the-night order, but it nevertheless gave the groups what they were seeking: a temporary halt on deportations at issue until it had more time to review the appeal. That decision doesn’t necessarily mean the migrants will win their case, only that they can’t be removed for now.

Between the case having multiple plaintiffs, in multiple jurisdictions, with the Supreme Court seemingly unable to produce clearly worded rulings, and the Trump admin pulling legal arguments out of its fanny . . . it is anyone's guess what is coming next. And who knows what Alito might come up with. From CNN: 

What happens next

The ball remains with the Supreme Court.

In its overnight order, the justices blocked the Trump administration from taking further action on the Texas detainees until it provides more clarity.

It also ordered the Department of Justice to respond to the ACLU’s request “as soon as possible.” The Justice Department did so Saturday evening, arguing the justices should deny the request to halt removals under the Alien Enemies Act.

“The government has agreed not to remove pursuant to the AEA those AEA detainees who do file habeas claims,” wrote US Solicitor General D. John Sauer, the Trump administration’s top appellate attorney. “This court should dissolve its current administrative stay and allow the lower courts to address the relevant legal and factual questions in the first instance — including the development of a proper factual record.”

Sauer, in other words, argued the case had moved too quickly for lower courts to establish the facts.

But as a backup argument, the Trump administration then told the high court it wants clarity that it may remove at least some of the same migrants under less controversial immigration laws. The Supreme Court’s order Saturday did not distinguish between deportations under the Alien Enemies Act and other laws that require normal due process before removing people from the country.

Sauer’s latest brief lacked much of the bluster of previous written arguments the administration has submitted to the Supreme Court and was relatively straightforward. The tone may reflect the unusual step the high court took in its order early Saturday shutting down the administration’s effort to quickly remove the migrants.

Alito’s late night retort

Alito, meanwhile, waited until late Saturday night to issue his dissent blasting his colleagues.

“Literally in the middle of the night, the court is­sued unprecedented and legally questionable relief without giving the lower courts a chance to rule, without hearing from the opposing party, within eight hours of receiving the application, with dubious factual support for its order, and without providing any explanation for its order,” Alito wrote, joined by Thomas.

Alito said the American Civil Liberties Union, which is representing the immigrants, had “provided little concrete support” for the allegation that the migrants at issue were in danger of immediate removal.

“I refused to join the court’s order because we had no good reason to think that, under the circumstances, issuing an order at midnight was necessary or appropriate,” Alito wrote.

In interviews with Dr. Phil McGraw and Sean Hannity, Trump fails to renounce his "revenge tour," indicating he would violate the presidential oath if re-elected

Donald Trump and Dr. Phil

 

In discussions this past week with friendly interviewers -- Dr. Phil McGraw and Sean Hannity of Fox News -- Donald Trump had opportunities  to renounce his stated plans, if elected to a second term, to seek retribution against Democrats he blames for his legal troubles. Both times, Trump failed to turn away from his plans for revenge. In the process, Trump suggested that his legal cases, especially his hush-money conviction in New York, were "rigged" or somehow conducted outside the law -- while other people in similar cases had the benefit of appearing before legitimate tribunals, with judges and jurors conducting their business in a lawful manner.

This situation, argues /Greg Sargent of The New Republic (TNR), presents a multi-pronged problem for the American public and the press that covers Trump's courtroom cases: (1) Trump refuses to accept that his conviction was the result of a properly conducted trial; (2) Trump continues to  claim that his conviction grew from a uniquely flawed process, while similarly situated defendants had their cases heard by honest courts; (3) Trump stands by his plans for revenge because he was subjected to a crooked process that other Americans have not had to face. 

Trump's whining and ranting, Sargent says, likely leave some Americans believing his statements are true. Meanwhile the press seems unable, or unwilling, to make sure the public understands Trump's words have no basis in reality.. That leaves us in a dangerous moment, with Trump loudly claiming our justice system is "rigged" and the press failing to alert the public that Trump presents no evidence to support his claim -- at least not in his own hush-money trial.

Sargent addresses this delicate situation, one that should make all Americans uneasy, under the headline "Trump’s Bizarre Moments With Dr. Phil and Hannity Should Alarm Us All; Earth to media: The criminal prosecutions of Trump are legitimate. The “revenge” he’s promising would be wholly illegitimate. Time to make that a whole lot clearer."Sargent writes:

During just this week, two of Donald Trump’s friendliest interviewers handed him big prime-time opportunities to unequivocally renounce any intention to retaliate against Democrats for his criminal conviction by a jury of his peers in Manhattan. Both times, Trump demurred.

“Sometimes revenge can be justified,” Trump told Dr. Phil McGraw, after he suggested that seeking retribution for Trump’s criminal charges would harm the country. Though Trump graciously said he was “open” to showing forbearance toward Democrats, he suggested revenge would be tempting, given “what I’ve been through.”

Trump voiced similar sentiments to Sean Hannity after the Fox News host practically begged him to deny he’d pursue his opponents. “I would have every right to go after them,” Trump said. Though Trump nodded along with Hannity’s suggestion that “weaponizing” law enforcement is bad, Trump added, “I don’t want to look naïve,” seemingly meaning that if he doesn’t seek revenge, he’ll have been victimized without acting to set things right.

These moments have been widely mocked as a sign that even Trump’s media pals can’t help him disguise his true second-term intentions. That’s true, but there’s another point to be made here: The exchanges should awaken us to what a monstrous scam it is when Trump and his allies talk about unleashing prosecutions of foes as “revenge” and “retribution.”

Trump is engaged in a high-stakes game of  "spin," Sargent says, and neither the public nor the press seem to realize they are being played:

We have to stop letting Trump get away with this. It’s actually spin, and we should all say so.

The idea that Trump should pursue “revenge” and “retribution” for prosecutions is everywhere on the right. After a federal judge ordered Steve Bannon to surrender to prison, numerous MAGA influencers, including the MAGA God King himself, angrily vowed such payback. Republicans have said Trump should “fight fire with fire” (Senator Marco Rubio) and that GOP district attorneys should declare open season on Democrats (Stephen Miller). Trump, of course, has offered many versions of this, including to Dr. Phil and Hannity.

In the media, this story tends to be framed as follows: Will Trump seek “revenge” for his legal travails, or won’t he? But that framing unwittingly lets Trump set the terms of this debate. It implies that he is vowing to do to Democrats what was done to him. 

But that’s not what Trump is actually threatening. Whereas Trump is being prosecuted on the basis of evidence that law enforcement gathered before asking grand juries to indict him, he is expressly declaring that he will prosecute President Biden and Democrats solely because this is what he endured, meaning explicitly that evidence will not be the initiating impulse.

You might think this distinction is obvious—one most voters will grasp instinctively. But why would they grasp this? It’s not uncommon to encounter news stories about Trump’s threats—see here, here, or here—that don’t explain those basic contours of the situation. Such stories often don’t take the elementary step of explaining the fundamental difference between bringing prosecutions in keeping with what evidence and the rule of law dictate and bringing them as purported “retaliation.” Why would casual readers simply infer that prosecutions against Trump are legally predicated while those he is threatening are not?

Can most Americans figure out Trump's scam on their own? Sargent has doubts, and the press is not helping much. He writes:

To appreciate the challenge this poses to the discourse, imagine an ordinary voter watching Trump’s exchanges with Dr. Phil and Hannity. Both interviewers treated it as self-evident that the prosecutions of Trump are illegitimate. Amusingly, they cast Trump’s dilemma as a profoundly weighty cross for him to bear, suggesting that if his foes are granted forbearance, it might be deeply unfair to Trump—given what they put him through—but would showcase his boundless magnanimity in sparing the country from tit-for-tat escalation.

Trump, of course, played along with this framing effortlessly. Speaking to Dr. Phil, Trump sagely agreed that displaying magnanimous forbearance would be better for the country but noted that he really has been treated unfairly, so who could begrudge his musing about retaliatory prosecutions? Similarly, Trump somberly told Hannity—again displaying his profound concern for our country—that the cycle of prosecutions “has to stop.” But he left the door open to seeking out his due: “What I’ve gone through, nobody’s ever gone through.”

“Will you pledge,” Hannity implored Trump, to “end this practice of weaponization?” Trump again assured Hannity that he sees the wisdom of this. But he added, “I don’t want to look naïve” about how badly he’s been treated, as if to say: How can such an injustice stand unanswered?

Watch these interviews, and Trump’s real mission becomes clear: to obliterate the distinction between legitimate prosecutions and purely baseless, politically malicious ones. Trump is threatening something wholly unlike what he has experienced. He and his allies are laying the groundwork to undertake the persecution of Democrats that they have wanted to unleash for a long time: Note that Trump has already sought to wield law enforcement against enemies during his presidency by trying to initiate investigations of Hillary Clinton but was thwarted by internal resistance—long before getting indicted himself.

The whole idea that Trump is seeking “revenge” is itself spin. There is nothing for Trump to legitimately seek revenge in this manner for, as Biden and Democrats did not unjustly victimize him with these prosecutions; he brought them upon himself. So what’s the proper response to such elaborate levels of deception and propaganda?

Sargent makes a point that all Americans who care about our nation's future should ponder: Trump's threats to prosecute his perceived enemies fall well outside our constitutional order, and they indicate he plans to violate the presidential oath of office. In short, a re-elected Trump would take an oath to protect and defend the Constitution of the United States, an oath he already has vowed to break. That presents some heavy-duty problems, Sargent writes:

One [response] is to ask media figures to lay down a marker for themselves. If casual readers will come away from their coverage without being informed as to what a given news organization itself knows to be true—that the prosecutions of Trump are thoroughly in keeping with the rule of law, while what Trump is threatening would be deeply destructive to it—then something is wrong, and more clarity is called for.

Another response is to urge Democrats to follow in the spirit of Brian Beutler’s excellent advice that they explain to voters why Trump’s criminal travails render him unfit to be president. This would entail stating more clearly that Trump’s threats to prosecute his enemies without cause are themselves wholly disqualifying.

One expert has compared Trump to a "mob boss." Are voters actually going to head to the polls and fill in the blank for president beside the name of a man who is both a convicted felon and a glorified mob boss? Do we take our national elections with even a sliver of seriousness anymore? Sargent writes:

Here, some theorizing on Trump’s form of lawless politics might offer guidance. John Ganz, in a piece adapted from his new book, suggests that Trump is functioning as a “mob boss,” which isn’t meant just polemically: Trump is offering his followers the spoils of his corruption and the thrill of feeling viscerally bonded to the MAGA clan—both as deliberate alternatives lying outside the liberal democratic order. And Jamelle Bouie explains that for Trump, the charismatic bond between him and his supporters trumps democracy and the law as the true wellspring of political legitimacy: Any outcome produced by our institutions is inherently illegitimate if it fails to maintain MAGA’s supremacy over non-MAGA America.

Democrats, then, can argue: You can’t be president if you treat the law as presumptively invalid when it is applied to you and your supporters (as Trump’s pledge to pardon January 6 rioters makes explicit). You can’t be president if you openly vow to extend the fruits of our political order only to your supporters while arbitrarily designating countless other Americans a traitorous class within, one that deserves to live in fear of lawless persecution and organized political thuggery. You can’t be president if you treat the rule of law as secondary to, in the words of David French, “the destruction of your enemies.”

Trump’s exchanges with Dr. Phil and Hannity are alarming in no small part because they show how thoroughly committed he is to proving all those assertions wrong.