mdsinclair

We decided last week that we might discuss Trump’s then-anticipated indictment by a Fulton County, GA grand jury under that state’s Little RICO (Racketeering-Influenced Corrupt Organizations) statute. Sure enough, that indictment was filed last Monday.

Eighteen other defendants are named in the indictment, including Rudy Giuliani (who, ironically, made his name as the US Attorney for the Southern District of New York by getting indictments against mob bosses and underlings and winning some of those cases), Mark Meadows, Jeffrey Clark, and others. The indictment comprises 41 counts, ranging from soliciting a public officer to violate their oath, conspiring to impersonate a public officer, conspiring to commit forgery in the first degree, and conspiring to file false documents, You can find the full text (.pdf format) of the indictment, in The Washington Post, at https://www.washingtonpost.com/documents/1ccdf52e-1ba2-434c-93f8-2a7020293967.pdf?itid=lk_inline_manual_5. There’s also an annotated version of the indictment from The New York Times at https://www.nytimes.com/interactive/2023/08/15/us/politics/trump-georgia-indictment-annotated.html.

Among the many questions one could discuss about this indictment are:

Will it ever come to trial?

Why did Fani Willis, the Fulton County DA, decide to try all 19 defendants at the same time?

Why has Mark Meadows moved that the matter be removed to Federal Court, and what’s the likelihood that will happen (see ?https://www.washingtonpost.com/opinions/2023/08/20/georgia-trump-trial-move-federal-court/)?

Which of the four indictments of Trump should come to trial first, and why? ?he Manhattan District Attorney’s, accusing Trump of criminal falsification of business records under New York law? The Federal indictment in Florida in connection with the wrongful possession of national security documents, obstruction, etc.? The Federal indictment in Washington, DC regarding the attempt to overturn the results of the 2020 Presidential election? The indictment in Georgia? Or others yet to come (e.g., witness tampering, wire fraud in connection with the solicitation of campaign donations, etc., etc.)?

Alternatively, what about trying to disqualify Trump as a candidate on the grounds that he violated his oath of office by overt insurrection against the United States and/or giving aid and comfort to its enemies (US Constitution, Amendment 14, Sec. 3), as proposed by J. Michael Luttig and Lawrence Tribe (see https://www.theatlantic.com/ideas/archive/2023/08/donald-trump-constitutionally-prohibited-presidency/675048/)? (Note: This article appears in The Atlantic; I’m not a subscriber, so this link connects to only the first few paragraphs, but maybe one of you has a subscription and can post a link to the entire article.)

See you all on Monday morning.

Last week, after we discussed where Russia might be headed after the Prigozhin/Wagner Group mutiny, we said we might talk this coming Monday (17 July) about “Whither China?” I’d suggest narrowing that topic somewhat, to “Whither the China-US relationship?”

Some of the questions that we could discuss include the following:

After the Prigozhin/Wagner Group mutiny and the performance of the Russian military in Ukraine since last February, is China hedging its bet on its support for Russia? If so, to what extent?

The Biden Administration seems to be trying to take advantage of China’s apparent and tentative hedging on Russia (and other factors affecting China) to reduce mutual tensions. How is the Biden administration doing that? Is there more it should do in that regard, or is it already doing enough (or too much)?

How well is the US coordinating its China policy with our European and other allies? Are their interests in reducing tensions with China the same as ours? If not, how do they differ?

Will the US be able to successfully “contain” China, as it did fairly successfully with the USSR during the Cold War? What would a containment policy toward China look like today? Should we pursue such a policy? Is it likely to succeed? If we followed such a policy, would our allies follow suit? If not, why not?

Here are some links to recent articles and opinion pieces that seem relevant to this topic:

“Xi Jinping may be souring on his ‘best, most intimate friend'” https://www.nytimes.com/2023/07/06/opinion/xi-putin-relationship-china.html?smid=em-share

“Biden bets high-level diplomacy can cool fiery relations with China” https://www.nytimes.com/2023/07/10/us/politics/biden-china-diplomacy.html?smid=em-share

“EU’s van der Leyen calls for tougher policy on China ahead of Beijing visit” https://www.politico.eu/article/eus-ursula-von-der-leyen-xi-jinping-calls-for-tougher-policy-on-china-ahead-of-beijing-visit/

“Can Europe forge a common China policy?” https://carnegieeurope.eu/strategiceurope/89580

“Why China has a huge pile of debt” https://www.nytimes.com/2023/07/08/business/china-debt-explained.html?smid=em-share

“‘Several things have shocked me’: an ex-insider on business in China” https://www.nytimes.com/2023/07/08/business/dealbook/china-economy-desmond-shum.html?smid=nytcore-android-share

“Why China’s young people are not getting married” https://www.nytimes.com/2023/07/10/world/asia/china-marriage-rate.html?searchResultPosition=1

A brief description of the development and implementation of George F. Kennan’s containment policy toward the USSR, from the Office of the Historian of the US State Department https://history.state.gov/milestones/1945-1952/kennan

I just checked the Beyond Labels website and didn’t find a suggested topic posted for the next (or a subsequent) meeting. It’s the one I proposed in the comment I posted on 13 June: Should Congress enact legislation prescribing, or creating an independent commission to prescribe, a code of conduct binding on the US Supreme Court, analogous to the US Judicial Conference’s Code of Conduct for United States Judges (https://www.uscourts.gov/sites/default/files/code_of_conduct_for_united_states_judges_effective_march_12_2019.pdf), initially adopted in 1973. The current version took effect in 2019.

The current Code of Conduct sets out some basic ethical considerations for judges in all federal courts and states that “[a]ll judges should [but are not obliged to] comply with this Code …”, with some specified exceptions for part-time and pro tem judges and a few others. The Code sets forth five basic ethical considerations (called Canons):

Canon 1: A Judge Should Uphold the Integrity and Independence of the Judiciary
Canon 2: A Judge Should Avoid Impropriety and the Appearance of Impropriety in All Activities
Canon 3: A Judge Should Perform the Duties of the Office Fairly, Impartially and Diligently
Canon 4: A Judge May Engage in Extrajudicial Activities That are Consistent With the Obligations of Judicial Office
Canon 5: A Judge Should Refrain From Political Activity

The Code relies on self-regulation by judges; there is no enforcement mechanism. However, judges may request advisory (i.e., non-binding) opinions from the Judicial Conference’s Committee on Codes of Conduct regarding the applicability and meaning of its provisions.

One example of such an advisory opinion: No. 53: Political Involvement of a Judge’s Spouse. Perhaps Justice Thomas is familiar with that one. We’ll see what, if anything, he does about that issue if and when cases come before the Court involving the January 6 attack on the Capitol or Trump’s involvement in that attack or in attempts to subvert the 2020 Presidential election.

To me, one weakness of the Code of Judicial Conduct is its lack of transparency. The Committee on Codes of Conduct publishes some, but not all, of its advisory opinions, and the Code doesn’t require justices to make public when they’ve asked for an advisory opinion or when they’ve had to consider whether one of the Canons applies to them and, if so, how that judge resolved the question. Also, leaving ethical decisions to the affected judge violates the maxim “Nemo judex in causa sua [No one is judge in his own case]”, attributed to Edward Coke, the 17th-century English jurist who was one of the great common law legal scholars of all time.

Recently, reports have emerged of questionable ethical conduct by Justices Thomas and Alito; they are probably not alone among the current Justices. The justices of the Supreme Court are not subject to the Judicial Conference’s Code of Conduct, or to any other code of conduct or ethics.

Should that change? If so, how?  

Would adoption by Congress and the President of a code of ethics for the Supreme Court violate the Constitutional separation of powers? If so, how?

Is there a way to enforce a judicial code of ethics for the Federal Courts? If so, how?

Here are links to some websites and recent articles related to this topic:

Summary of the Department of Justice Ethical Standards for Executive Branch Employees (1993), adopted as a Federal Regulation and applicable to “… all employees of the executive branch ….”

President Biden’s 20 January 2021 Executive Order on enforcement of executive branch ethics standards (https://www.whitehouse.gov/briefing-room/presidential-actions/2021/01/20/executive-order-ethics-commitments-by-executive-branch-personnel/)

Code of Official Conduct of the House of Representatives, adopted by the House Ethics Committee (https://ethics.house.gov/publications/code-official-conduct), which is known for not enforcing the Code of Ethics.

22 February 2023 American Bar Association statement supporting adoption of a binding Supreme Court code of ethics (https://www.americanbar.org/advocacy/governmental_legislative_work/publications/washingtonletter/feb-23-wl/scotus-ethics-0223wl/)

17 April 2023 article in Politico (https://www.poynter.org/fact-checking/2023/why-doesnt-the-supreme-court-have-a-formal-code-of-ethics/) discussing Supreme Court Justices’ questionable ethical decisions, current proposals to adopt a Supreme Court code of conduct and how it might be enforced, and related constitutional issues.

20 June 2023 article in Pro Publica (https://www.propublica.org/article/samuel-alito-luxury-fishing-trip-paul-singer-scotus-supreme-court)  about Justice Alito’s non-disclosure of his 2008 fishing trip to Alaska paid for by Paul Singer, a hedge fund manager and significant donor to Republican candidates and causes, who later had cases before the Supreme Court, and Justice Alito’s Wall Street Journal Op-ed defending his decision (https://www.wsj.com/articles/propublica-misleads-its-readers-alito-gifts-disclosure-alaska-singer-23b51eda)

26 May 2023 New York Times editorial (https://www.nytimes.com/2023/05/25/opinion/supreme-court-ethics-act.html?smid=em-share) on the need for a Supreme Court code of ethics