Morning Cannolis

Host: James Santelle

News | Politics

Jim Santelle, a former United States Attorney in Wisconsin, is Civic Media’s resident legal commentator and frequent instructor on a variety of court, law enforcement, and rule of law topics. Join “Morning Cannolis” each Saturday morning from 9 a.m. to 11 a.m. as he analyzes the big legal news stories of the week and offers his own perspective on what they mean now—and for the future of our nation!

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Appointments of ‘Special’ Participants in the Judicial Process—A ‘Monitor’ & A ‘Counsel’—And A Significant Case Before the Supreme Court on the Liability of On-Line Social Media Platforms

On a day when America recalls the stirring words of Abraham Lincoln in dedication of the National Cemetery at the Gettysburg Battlefield 159 years ago, describing and discussing the contemporary applications of his Rule of Law-inspiring message: First, witnessed in two major appointments of this past week—namely, the selection of former federal trial Judge Barbara Jones to monitor the actions of the Trump Companies while the State of New York continues its civil litigation, and the announcement of former federal prosecutor Jack Smith to oversee and direct the continuing federal investigations of the former President’s involvement in the January 6 insurrection and his (unrelated) taking and retention of records (some classified) following his departure from office in January of 2021.

Unqualified endorsement of the former appointment to ensure that no further state violations occur in the management of properties and other financial assets—and strong support for the further pursuit of federal charges in the latter, but with considerable concern about the messaging (implicit if not explicit in the special counsel appointment) about the enduring, now restored capacities of ethical, tenured civil servants of the Justice Department to conduct this important work—absent credible concerns about their political impartiality and non-partisan ethics.

Excellent commentary and questioning from broadcast callers leading naturally into the review of the major goings-on in two (also unrelated) criminal trials of this past week—namely, the testimony of federal defendants in the seditious conspiracy trial (in Washington, D.C.) of Oath Keepers charged with organizing the January 6 rioting, and the testimony of the chief financial officer (a cooperating state defendant) of the Trump Organization in the criminal tax fraud trial in Manhattan. Finally, complementing our weeks-long analysis of some of the most important cases pending before the United States Supreme Court, an outline of a judicial challenge to the lawfulness of a long-standing federal law shielding on-line social media platform-providers for false, damaging, and incendiary posts of their users.

The Feverish Pace of Judicial Activity Continues in the Civil and Criminal Courts, Trial and Appellate, of America

For the second week in a row, a survey and analysis of some of the breathtaking goings-on in our nation’s tribunals—including the freezing of Alex Jones’ financial assets to prevent their looting, the stunning testimony of Stewart Rhodes in his continuing trial for seditious conspiracy, and the appointment of an impartial monitor to ensure that the assets of the Trump companies are not dissipated while financial fraud litigation against it continues. In other judicial arenas, a new federal lawsuit by the former President in an attempt to stop his subpoenaed testimonial appearance before the January 6 House Committee; the imposition of sanctions against the attorneys who initiated another of his federal actions frivolously seeking damages against people who allegedly compromised his reputation; a supplemental New York lawsuit anticipated from E. Jean Carroll against Donald Trump under the New York Adult Survivors Act; and decisions by federal district judges in Texas finding unconstitutional President Biden’s student loan forgiveness program and invalidating the prohibition on anti-LGBTQ discrimination (based on sexual orientation and gender identify) as established by the Affordable Care Act. And in the highest court of the land, three oral arguments this past week on Supreme Court cases that may reshape the agency operations of the Federal Trade Commission and the Securities & Exchange Commission, rescind decades of Medicaid/Medicare policy permitting lawsuits for abusive health care practices, and eliminate the key provisions of the Indian Child Welfare Act, directing the foster care and adoption placements of Native American youth in homes that promote the preservation of their cultural heritage and ethnic legacies.

In Celebration of Voting: A Call to the Polls & A Frenetic Week of Court Activity in America

At the start, judges both federal and state presiding over criminal and civil proceedings from coast to coast in the United States—including the seditious conspiracy trial of the Oath Keepers in Washington, D.C., the criminal fraud prosecution of the Trump companies in New York City, the punitive damages proceeding against Alex Jones in Connecticut, the state sentencing of the Marjorie Stoneman Douglas High School shooter in South Florida, and the oral arguments before the Justices of the Supreme Court on whether colleges and universities may use race as a factor in admitting new student classes. Then, in anticipation of the mid-term elections in the coming week, a review of the ways in which the Voting Rights Act of 1965 (VRA) historically prohibited discrimination in polling practices—until the High Court eliminated the clearance process that prevented historically-offending jurisdictions from enacting and enforcing dis-enfranchising rules and diminished the key provisions of the civil rights law previously meant to ensure voting access for people of color; much related, the possibility that the Supreme Court may strike another blow at the VRA in June—and the attempts, unsuccessful in Congress to date, to restore and reinvigorate the statute to promote voting opportunities for all Americans in the years ahead. Finally, an interactive discussion with the executive director of a local civics-advancing organization—focusing on the practical trappings of what to expect at polling places, including the mechanisms for same-day, on-site registration and the prescribed roles and conduct limitations of election observers, among others with official responsibilities to make voting reliably accessible and integrity-based.

The Latest, Important Decision-Making of our Federal & State Courts on Issues Affecting our Nation—Part 2

After another week of breathtaking events and landmark decisions inside and outside our nation’s courts right prompts the question: “What are we to make of these seemingly related news stories that also change who we are and what we will be in America?” Among the blizzard of topics for analysis—stunning decisions by a single federal appeals court invalidating the Deferred Action for Childhood Arrivals Program and the Consumer Financial Protection Bureau; the belated ruling of another federal circuit tribunal directing the release of former President Donald Trump’s tax returns to the House Ways & Means Committee; the start of the criminal trial against the Trump Corporation for tax and related fraud in a Manhattan courtroom; the sentencing by a federal trial judge in Washington, D.C. of one of the most brutally vicious rioters-insurrectionists of January 6; the conviction in a federal court in Michigan of more anti-government conspirators involved in a foiled plot to kidnap and murder that state’s incumbent governor; and the ruling by a South Carolina state court directing that Mark Meadows, the former White House Chief of Staff, appear for testimony before a Georgia grand jury investigating the attempt to undermine voting and change the actual results of the 2020 presidential polling there. And near the end of the first month of public arguments before the United States Supreme Court in its 2022-2023 term, an analysis of three more (among ten, previously-highlighted) important cases pending before it (likely to be decided in June)—focusing on the immigration enforcement authority of the Homeland Security Secretary to prioritize investigations and deportations of the most public safety-threatening illegal aliens, another challenging the right of nursing home patients to sue for civil rights violations in their health care treatment, and a third re-igniting the clash between religious and speech liberties under the First Amendment and the rights of LGBTQ community members to engage in commercial service contracts.

The Latest, Important, and Much-Related Decision-Making of our Federal Courts on Issues Affecting our Nation

In the whirlwind days of this past business week, our federal courts at all levels have continued to issue decisions affecting who we are and what we will be as Americans:

Among the many judicial rulings that have rightly attracted headlines are the rejection by the United States Supreme Court of an emergency application to review the planned start of the President’s student loan forgiveness program—and, in that same connection, an injunction issued by the Eight Circuit Court of Appeals (overturning a trial judge in St. Louis) to stop the administration of that landmark initiative.

In other areas, federal trial courts in Washington, D.C. imposed criminal sentences of imprisonment on former Presidential advisor Steve Bannon for contempt of Congress and on one (among many others) of the youngest January 6 insurrection-rioters; much-related, another federal judge in California released yet another set of emails between former Presidential lawyer John Eastman and former President Trump—finding that they revealed crime-inspired attempts to defraud the American public about the results of the 2020 election.

Back in the nation’s capital, a trial jury found a third defendant prosecuted by Special Counsel (and former United States Attorney) John Durham not guilty of lying to the FBI—effectively bringing to an end a 3-1/2 year “investigation of the investigation” of the connections between the Trump Campaign and Russia in the 2016 Presidential election.

In New York, both a trial judge and an appellate court were wrestling with the civil defamation claims brought by a journalist against the former President for statements he made about her truthfulness reporting on an alleged sexual assault in the mid-1990s—about which Donald Trump was deposed this past week.

And in the context of the continuing focus on documents seized at the Mar-a-Lago resort, the Special Master this week expressed skepticism (“Where’s the beef?,” he said) about the arguments made by lawyers for the former President in attempt to stop the Justice Department investigation into the sources, possession, and uses of official government documents—some of which (related to pardons and immigration policy) the President curiously described as his “personal possessions.” A tumultuous week in the pursuit of justice—dissected and explained in this episode.

In reply to the always-engaging questions and comments from listeners, some important clarifications about what Roe v. Wade did and did not establish about abortion and privacy rights, the status of various federal and state investigations into the criminal behavior of the “false electors” from Wisconsin and six other states, the effect of the upcoming Congressional elections on the capacity of the Justice Department to litigate on behalf of our citizenry, and the inter-relatedness of all of this on the future of our Republic.

The Importance of Public Accountability, Behavioral Deterrence, and Precision in Public Language

Focusing on three of the most significant news developments in the areas of law,
government, and the aspiration for justice in America, what special insights and
practical perspectives should we glean from: first, the gradual but unmistakable
movement of the federal appellate courts toward rebuking former President Trump
in his challenges to the criminal investigation of the Mar-a-Lago documents
matter; second, the latest colossal monetary judgment of a fact-finding jury against
Alex Jones for the profound, conspiracy-mongering injuries he caused to the
families of the victims of the Sandy Hook school shooting; and third, the final
hearing of the House Select Committee on the January 6 insurrection—including
disturbing reporting about the failures of the former Chief Executive to act
decisively and timely to stop the riot, even as his own fabulist tales about the
illegitimacy of the most secure and reliable election in our nation’s history lit the
fires of sedition and promoted his self-interested goal of sowing mistrust and
division among Americans? Equally important to our Republic, what hugely
important issues in the areas of interstate commerce, intellectual property rights,
affirmative action, and Native American Indian engagements are before our United
States Supreme Court—for present argument this Fall and landmark decision-
making next Spring?

The discussion of the SCOTUS docket, a regular component
of every Saturday morning broadcast, continues this week and in future weeks.

The Most Recent Presidential Pardons & the Most Important Oral Arguments before the Supreme Court

Invoking his delegated authority under Section 2 of the Constitution, the President
this past week twice granted pardons and clemency to groups of people—for very
different reasons, under very different circumstances. How should we understand
these decisions to commute the sentences of convicted felons to secure the return
of Americans imprisoned in a foreign country and, unrelated, to pardon thousands
of people with prior federal convictions for marijuana possession? Returning to
Section 3 of the Constitution, what might we have learned this past week from the
public, oral arguments before the Supreme Court on a major environmental case
under the Clean Water Act and on a challenge to a racially-gerrymandered
congressional map under the Voting Rights Act? And to which cases—including
one on the interstate commerce clause involving the sale of pork and another on
federal copyright law involving the legacies of Andy Warhol and Prince—should
we be attentive as our High Court continues to define our lives and livelihoods in
the United States of America of this early 21 st Century?

The Uses & Abuses of the Power to Pardon—And the Major Cases on the Docket of the Supreme Court

In times when a former President raises the specter of pardoning all of the
defendants convicted of crimes for their involvement in the January 6 riot and
insurrection—and when one of that former President’s senior advisors seeks a
second pardon for his criminal culpability in the attempt to overthrow the operation
of government—it is fitting to explore the constitutional sources of the pardon
power, including its proper and “grace”-based invocations, along with the abuses
to justice accomplished when it is extended to family, friends, and political allies.
From Article II to Article III of the Constitution, the imminent beginning of the
new term of the Supreme Court prompts review and understanding of some of the
significant court controversies in the areas of voting-elections and the environment
in 2022-2023. How should we understand the delegated roles and established
missions of our executive and judicial branches in contemporary America as they
continue to affect so profoundly who we are and what we may become?

As indicated, today’s broadcast is also the first of three to examine some of the
nearly 30 cases that will be argued before and decided by the nine Justices of the
High Court, beginning on the first Monday in October and continuing well into
mid-2023; “take-aways” from those arguments and likely outcomes on the
questions presented will be featured regularly during the next nine months.

The Appeals Court & Special Master Affirm the Rule of Law and an Attorney General Takes On Financial Corruption

On a day when our nation remembers and commemorates the 65th anniversary of
the presidentially-directed and militarily-accomplished racial integration of the
Little Rock High School in segregationist Arkansas, contemporary news about the
promotion of and victory for the Rule of Law in America also rightly attracts
attention: Based on an in-depth review and careful analysis of this week’s
landmark decision of the U.S. Court of Appeals for the 11 th Circuit, what should we
understand about the unfettered conduct of legitimate criminal investigations, the
significance of government evaluations of national security compromises, the
appropriately-described limits of authority of former presidents, and the justice-
focused responsibility of thoughtful and informed judges to invoke and apply the
law without political agendas or partisan goals? Beyond the implications of the
Justice Department’s next steps in addressing the illegal possession of classified
and non-classified documents at Mar-a-Lago, what is the court-appointed Special
Master doing to ensure that the former president’s lawyers live up to their oaths by
making only fact-based, provable representations about their publicly reckless,
uneducated client and his likely criminal behavior? And what are the significant,
short- and long-term implications of the sweeping civil suit brought by New
York’s Attorney General to do everything short of shutting down completely the
fraudulently-run, financially-victimizing business that is the Trump organization?

Today’s broadcast also introduced two new topics that will be undertaken and
pursued with greater focus in the weeks ahead—namely, the uses and abuses of the
president’s pardon powers by previous administrations and the important cases
about to be heard by the Supreme Court beginning the first Monday in October.

The Traditional, Rule of Law-Inspired Role of Judges & Prosecutors

The search and seizure in early August of some 11,000 documents, including 100
classified items, at the residence-resort of former President Donald Trump
continues to generate investigative activity and, most recently, highly intrusive
judicial action. Among the most recent developments have been the decisions of a
federal judge in South Florida to stop the review and assessment of the criminal
implications of the transfer, possession, and possible use of these materials—and
the appointment of a former federal judge as a special master to make rulings on
the attorney-client and executive privilege characteristics of them. What should we
understand about the strategic decision by the Justice Department to appeal the key
portion of the judge’s injunction, effectively preventing an evaluation of the
damage suffered to our national security, and where does all of this go next?
Similarly implicating foundational rule of law issues were disclosures this past
week of serious, repeated attempts by the Trump White House to influence and
even direct the investigation and prosecution decisions of the Justice Department in
several high profile files in recent years—and the likely conclusion soon of the
investigation of the legitimacy of the so-called Mueller inquiry into Russian
interference with the 2016 election and obstruction of justice during it by the
former President. Why are these key revelations important to evaluating the
recent, highly troubling legal history of our nation, and what lessons for the future
do they teach when our elected and appointed officials inject political interests and
partisan goals into what should be the otherwise independent actions of
investigators and prosecutors charged with acting independently and impartially?