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Criminal Defense

Mistakes Like This Shouldn’t Happen

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There has been harsh criticism of Trump for having pardoned or commuted the sentences of violent criminals in his grandiose, yet shallow, display of pandering to his MAGA base that saw them as patriots and hostages. To those who believe in faeries, he was a hero, kind of keeping his campaign promise and bringing home the well intended, if none too bright, patriots he told to storm the Congress to save the nation.

To others, he was his usual simplistic fool, doing pretty much what one would expect of any simplistic fool, uninterested in distinguishing between unworthy defendants and unwilling to put in the effort when the only purpose of his act was to pander to sycophants who similarly wouldn’t care either way. It was a cheap way for Trump to buy himself some adoration and, if necessary, useful idiots to take to the streets again if he needed some very fine people to do his dirty work.

And that’s why Joe Biden has no excuse, none, for his pardon of Adrian Peeler.

Adrian Peeler served a 20-year state prison sentence for murder conspiracy in the 1999 shootings of Leroy “B.J.” Brown and his mother, Karen Clarke, in Bridgeport — killings that shocked the city and led to improvements in state witness protection. Prosecutors said Brown and his mother were assassinated to prevent the child from testifying in another murder case.

In December 2021, Peeler finished his state sentence but began serving a 15-year term in federal prison for dealing large amounts of crack cocaine.

The federal sentence would have kept him behind bars until 2033. He is now set to be released in July.

Biden commuted Peeler’s sentence as one of the non-violent drug defendants. It isn’t difficult to see how this happened, as his federal sentence was for drug, following upon his state case for murder.

A spokesperson for the U.S. attorney’s office in Connecticut, which prosecuted the drug case against Peeler, said Wednesday that it was not consulted or notified in advance about Peeler’s clemency. The office declined further comment.

It’s likely that someone, or some organization, put together a list based solely on the most superficial criteria, and Peeler’s case, where is original sentence of 35 years had been reduced to 15 years, popped up. And so he was tossed into the bunch of defendants to be commuted in a rush at the end of Biden’s term. Indeed, many, myself included, called for Biden to commute the extreme sentences imposed on drug defendants during the years when ever-higher sentences were believed to be the cure for the drug epidemic. 

On Jan. 17, the White House boasted that Biden had issued more pardons and commutations “than any president in U.S. history.”

“Today, I am commuting the sentences of nearly 2,500 people convicted of non-violent drug offenses who are serving disproportionately long sentences compared to the sentences they would receive today under current law, policy, and practice,” Biden said in a statement.

The two situations are not remotely comparable. Trump knew that pardoning or commuting the sentences of January 6 defendants included, by definition, those who violently attacked Capital Police Officers. He just didn’t care. Biden, on the other hand, did not know that Jason Peeler was a killer who, atop his murder, was also convicted for being a drug dealer. But then, Biden failed to put in the effort to adequately vet those whose sentences he was commuting to distinguish between killers and drug dealers serving excessive sentences.

That Biden didn’t know, and didn’t take the time or put in the effort, to figure out whether each and every defendant whose sentence he commuted was worthy of his mercy, may be understandable, but is nonetheless inexcusable. We have a monstrous bureaucracy of people who could have put in the effort to figure out whether each of the “almost 2500” were worthy of commutation.

There are people in the Department of Justice whose job it is to vet every application for a pardon or commutation to ascertain whether they are appropriate candidates. Did they consider Jason Peeler? No one asked the United States Attorney’s office for Connecticut whether to cut Peeler a break. Did anyone even look at him, at his conduct, at the harm he cause when he murdered a child?

Despite our vast and very expensive bureaucracy, “mistakes” like this happen. They shouldn’t. They can’t. Yet they do, and they happen with pathetic regularity. The commutation of Peeler’s sentence is but one example, but a particularly curious one given how easily it could have been avoided had the slightest effort been employed to such a serious act as a commutation.

For all the people employed, and all the money spent, there remains inadequate concern that the government just can’t manage to get it right, to think things through, to do its job without screwing something up and harming people in the process. Apologists will explain that it’s just one mistake out of “almost 2500,” and mistake happen. Nonsense. Had there been any serious thought put into who these “almost 2500” were, it would have been recognized that Jason Peeler was not someone worthy of commutation. There is no justification for this mistake to happen. Indeed, this mistake should never happen.

Trump’s pardon of cop beaters was the product of his carelessness and laziness, both of thought and deed. But neither Biden nor the Democrats can claim to stand atop some moral mountain when they can’t manage to use the vast and inordinately expensive resources provided them upon the backs of working Americans to not commit avoidable mistakes. The two acts may be very different, but the net result to the public is that the government has failed us, yet again.

Criminal Defense

Will Sassoon Succumb? | Simple Justice

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I presume Eric Adams innocent of all charges against him, as he’s not yet been convicted of any offense. But that by no means suggests that the evidence against him isn’t strong. The United States Attorneys office for the Southern District of New York has long been recognized as two things. First, it’s a chickenshit club, one that doesn’t bring cases it isn’t essentially certain it can win. Second, it’s been the paradigm of prosecutorial independence, existing apart from the political influences of Main Justice.

Trump’s former defense lawyer, Emil Bove III, has put the latter to the test by ordering Danielle Sassoon, the United States Attorney, to drop charges against New York City Mayor Eric Adams.

Mr. Bove justified the decision to ask for the dismissal by saying that the mayor’s indictment had limited Mr. Adams’s ability to cooperate in President Trump’s immigration crackdown. He also suggested that the indictment, which was handed up in September, threatened to interfere with the June 2025 mayoral primary, despite the nine-month interval between the two events.

There is no issue of executive immunity involved here. Unlike Trump, Adams can be prosecuted before, during or after his term of office. Nor is there any issue of this being a “witch hunt,” the go-to defense that somehow makes criminal conduct magically disappear by its mere utterance.

Mr. Bove explicitly said that the Justice Department had made its decision without assessing the strength of the evidence against Mr. Adams or the legal theories undergirding the case. Instead, his letter criticized the U.S. attorney who brought it and former President Joseph R. Biden Jr. He offered expressly political arguments for dropping the charges of conspiracy, wire fraud, soliciting illegal foreign campaign contributions from foreign nationals and bribery, asserting the urgency of Mr. Trump’s immigration objectives.

In other words, it will be good for Trump to have Adams remain as mayor, at least for the time being, and prosecuting Adams could get in Trump’s way, as good a reason to let a putative criminal remain in office as Bove can fathom. Although elected as a Democrat, Adams has cozied up to Trump since his election and expressed his willingness to acquiesce to Trump’s will. The next mayor may not be as compliant, and it certainly offers useful optics for a Democratic mayor to cooperate.

But that puts the ball in Sassoon’s court.

It will now fall to the acting head of the U.S. attorney’s office in Manhattan, Danielle R. Sassoon, whether to heed Mr. Bove’s order to dismiss the charges “as soon as is practicable” by filing a motion with the judge. A spokesman for Ms. Sassoon’s office declined to comment.

Will Sassoon do as Bove commands? If so, two things happen. The first is that the once-vaunted independence of the SDNY office is forever compromised, rendering it no less a weapon to be wielded by the politicians than any other office. The history of exercising prosecutorial discretion in the interests of justice rather than politics will be exactly that, history. The difference is that cries of lawfare, of the weaponization of the criminal legal system, will give way to the open and notorious reality. Sure, it’s dismissal in this instance rather than prosecution, but the fact that Bove’s order is flagrantly political removes any doubt that the office’s sole motivation is to do justice under law.

The second is that New York City’s mayor will be bought and owned by Trump.

The letter was a remarkable intervention in a high-profile public corruption prosecution, one that cast the independence of federal prosecutors into doubt given the way Mr. Adams has curried favor with Mr. Trump. Mr. Bove directed that the charges against Mr. Adams be dismissed without prejudice, suggesting that the case could be revived if merited — or if it pleased the president.

By dismissal without prejudice, the prosecution can be revived in the future. When Adams is no longer useful, or should he not drop to his knees upon command, Bove need only send another letter to Sassoon and Adams will be right back in the dock. At least it cost Musk a boatload of money to buy Trump. Adams didn’t cost a dime.

As news broke about his case Monday evening, Mayor Adams, a Democrat, was dining with John Catsimatidis, a Republican billionaire with ties to Mr. Trump, at Gallaghers Steakhouse on West 52nd Street. Mr. Adams had no substantive comment, but his lawyer, Alex Spiro, provided a statement.

“As I said from the outset, the mayor is innocent — and he would prevail,” Mr. Spiro said. “Today he has. The Department of Justice has re-evaluated this case and determined it should not go forward.” He did not note the Justice Department’s acknowledgment that it refrained from evaluating the evidence.

It’s odd that they were eating at Gallaghers, where Big Paul Castellano met his maker, as the steaks are quite mediocre, but Adams was smart not to mouth off. His defense lawyer, on the other hand, couldn’t resist, even if the gist of his statement was to emphasize that Bove made no determination as to the merit of the prosecution, couldn’t be bothered with such trivialities as evidence, and instead made clear that Adams could walk only so long as he did as he was told.

If Danielle Sassoon refuses to comply with Emil Bove’s command, there is a strong probability that she will be vilified and fired. The independence of the Department of Justice, in general, and the Southern District of New York, in particular, is only a fond memory now. Will Sassoon be a good soldier and do as she’s told or will she go out in a blaze of honor? As for Adams, his presumption of innocence won’t do anything to help his honor.

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Criminal Defense

Vance’s Call To Defy The “Illegal” Judges

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Since Marbury v. Madison, judicial review has been a bedrock principle of American constitutional jurisprudence. Some don’t care for it, given that it presents a limitation on the authority of the president to do whatever he pleases, and yet it has served this nation well. You would think a Yale Law grad would recognize this, even if it meant he had nothing to say in defense of his boss whose knowledge and grasp of law, governance and Constitution ranged from none to none. You would be wrong.

This is a very tricky twit by someone who has shed his hillbilly origins and, a la Ted Cruz, backed a pissant who would normalize hate toward Vance’s wife.

If a judge tried to tell a general how to conduct a military operation, that would be illegal.

As with most things legal, the correct answer is “it depends.” If the general’s conduct involved torture, was in violation of a treaty or lacked authority such as a general deciding on his own to bomb Paris, it would very likely be a proper exercise of judicial authority to “tell a general.” Even if not, it would not be illegal, meaning in violation of law, but ultra vires, meaning in excess of his authority.

If a judge tried to command the attorney general in how to use her discretion as a prosecutor, that’s also illegal.

This depends as well. If the exercise of discretion, a prosecutorial prerogative generally, was used in an unlawful fashion, say to prosecute or not based on race, a judge would most assuredly have a say in the attorney general’s exercise of discretion. Judges have a duty to assure compliance with the Constitution (even if that duty is observed mostly in the breach), so if the attorney general uses her authority in a manner that violates the Constitution, a judge has a role to play. To fashion it as a “command” is peculiar, just as call it illegal is the wrong word, but it’s unlikely that Vance’s followers will be troubled by his word choice.

Judges aren’t allowed to control the executive’s legitimate power.

And Vance finally gets to the point of his twit, that neither Judge Engelemayor nor any of the other judges enjoining President Musk’s actions are “allowed” to stop Trump from exercising his “legitimate” power. Vance’s inclusion of the word “legitimate” might seem to provide the necessary squishiness to salvage his otherwise nonsensical assertion. After all, if the exercise of power is legitimate, what possible basis could a judge have to control it?

The problem arises from the determination of what constitutes “legitimate” power and who gets to decide. That authority resides in the judiciary. Remember that old Marbury case, where President Andrew Jackson is reputed to have said, “Marshall has made his decision. Now let him enforce it”?

When the issue before the court is whether the executive has the lawful authority to do something, it is very much in the judge’s control. That’s why they build courthouses. Perhaps the judge’s temporary restraining order will be vacated upon the hearing of the cause. Perhaps the executive will ultimately be vindicated, his authority approved whether by trial or appeal. Perhaps not.

But when a challenge is brought before a judge to the president’s, or his money-buddy’s, authority to take certain actions, the only constitutional response is defend and, should the executive lose, appeal. There is no constitutional option to defy the order of a court, no matter how much you disagree with it or how wrong you believe it to be, under our constitutional order.

Vance calling Musk’s burning down the house a “legitimate” exercise of executive power serves only one purpose, to inflame the groundlings who might be deluded by bad reasoning and inapt analogies, who would then brashly call for their beloved to pull an Andrew Jackson, but this time for real. After all, if it’s illegal, is there not a patriotic duty to fight against this illegality, much as there was a patriotic duty to fight against the stealing of an election four years ago?

 

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Criminal Defense

Judge Engelmayor’s TRO: Just The Law

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If one were to believe the voices of outrage on the twitters, Southern District of New York Judge Paul Engelmayor just stopped Treasury Secretary Scott Bressent from being allowed into his own computer system, from overseeing his own department’s payment system. The alternative to losing one’s head is reading the decision, but too few are sufficiently interested in thinking to be bothered. I am not.

The States contend that this policy, inter alia, violates the Administrative Procedure Act (“APA”), 5 U.S.C. §§ 551 et seq., in multiple respects; exceeds the statutory authority of the Department of the Treasury; violates the separation of powers doctrine; and violates the Take Care Clause of the United States Constitution.

Whether or not you care about any of this, and many don’t care because of the syllogism*, the duty of a court is to apply law. You can’t just like that when it works in your favor, but either you accept the premise that we are nation of laws or you don’t. If you’re of the view that Trump’s election renders him omnipotent, then don’t bother reading any further and don’t forget to swallow. But just in case you are of the view that the law still matters even when it doesn’t give you everything you want, then consider Judge Englemayor’s findings.

The Court’s firm assessment is that, for the reasons stated by the States, they will face irreparable harm in the absence of injunctive relief. See Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). That is both because of the risk that the new policy presents of the disclosure of sensitive and confidential information and the heightened risk that the systems in question will be more vulnerable than before to hacking. The Court’s further assessment is that, again for the reasons given by the States, the States have shown a likelihood of success on the merits of their claims, with the States’ statutory claims presenting as particularly strong. The Court’s further assessment is that the balance of the equities, for the reasons stated by the States, favors the entry of emergency relief.

Bruce Schneier, who knows his way around cybersecurity, agrees.

Bruce Schneier, a cybersecurity expert at Harvard and the author of a series of books on security vulnerabilities, including “Click Here to Kill Everybody,” called the entry of Mr. Musk’s force “the most consequential security breach” in American history.

Mr. Schneier noted that the intrusion came “not through a sophisticated cyberattack or an act of foreign espionage, but through official orders by a billionaire with a poorly defined government role.”

Yet again, you may not care. You may believe that it’s a risk worth taking. You may believe that it has to be done, so shut your eyes and dive into the abyss. But then, the security of the nation, not to mention the faithful application of its laws, doesn’t care what you believe. More importantly, your belief doesn’t change whether this impetuous action is wrong, ranging from improper to catastrophic. Nor, for that matter, is it up to Trump or Musk. Hard as it may be to believe, they are not our new overlords, and while Trump is the putative steward for a term of office, no one quite knows what Musk is. You think you do, but you don’t, no matter how hard you clench your sphincter.

So Judge Englemayor did what any good judge would do. He shut down, pending hearing before the assigned Judge Jeannette A. Vargas, the wild and crazy shenanigans for which the law makes no exception.

ORDERS that, sufficient reason having been shown therefor, pending the hearing of the States’ application for a preliminary injunction, pursuant to Rule 65 of the Federal Rules of Civil Procedure, the defendants are (i) restrained from granting access to any Treasury  Department payment record, payment systems, or any other data systems maintained by the Treasury Department containing personally identifiable information and/or confidential financial information of payees, other than to civil servants with a need for access to perform their job duties within the Bureau of Fiscal Services who have passed all background checks and security clearances and taken all information security training called for in federal statutes and Treasury Department regulations; (ii) restrained from granting access to all political appointees, special government employees, and government employees detailed from an agency outside the Treasury Department, to any Treasury Department payment record, payment systems, or any other data systems maintained by the Treasury Department containing personally identifiable information and/or confidential financial information of payees; and (iii) ordered to direct any person prohibited above from having access to such information, records and systems but who has had access to such information, records, and systems since January 20, 2025, to immediately destroy any and all copies of material downloaded from the Treasury Department’s records and systems, if any;

What is remarkable about Judge Englemayor’s order is its unremarkability. For those inclined to histrionics like “everything is corrupt,” “it’s all fraud” and “burn it all down,” requiring the Treasury Department to adhere to basic law and not give Musk and his lost boys run of the place will seem outrageous. It’s not. It’s just the law.

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