1.c4 Nf6 2.Nc3 d5 3.cxd5 Nxd5 4.g3 g6 5.Bg2 Nxc3 6.bxc3 Bg7 7.Rb1 0-0 8.Rxb7 Bxb7 9.Bxb7 Nd7 10.Bxa8 Qxa8 11.f3 Rd8 12.Qc2 c5 13.Nh3 Ne5 14.0-0 Qc6 15.d3 Qa6 16.Nf2 Qa5 17.Bd2 Rb8 18.Rb1 Rb6 19.Rxb6 axb6 20.f4 Nc6 21.e4 Qa8 22.a4 Qd8 23.g4 Qd6 24.Kg2 1/2-1/2>

<ANDREW C. MCCARTHY:

<First, with the help of Judge Juan Merchan and none other than Donald Trump, prosecutors from the office of elected progressive Democratic district attorney Alvin Bragg have effectively concealed what should have been fatal holes in their case.

The state is well aware of these holes and has thus cleverly created an illusion of mountainous evidence — which is why prosecutor Joshua Steinglass was able to hammer away at the jury for six hours in summation into Tuesday evening. The sleight of hand is that the mountain proves legal conduct. It seems illegal because the subject matter is sordid: paying off a porn star and a Playboy model during the 2016 election to maintain silence about extramarital affairs with Trump. But the payoffs were lawful consideration for lawful contracts.

It’s not hard for prosecutors to assemble prodigious proof of legal acts, even unsavory ones. The waves of evidence enable the prosecutors to numb the jury with the appearance of overwhelming guilt. The hope is that no one will notice the dearth of proof on what — outrageously in a state prosecution — has become the dispositive issue: In 2016 and 2017, when the NDAs were being negotiated and then Trump reimbursed his “fixer” Michael Cohen for the Stormy payoff, did Trump willfully violate the federal campaign-finance laws (which prescribe felony offenses that Bragg has no jurisdiction to enforce)?

In point of fact, there is not a shred of evidence that Trump was even thinking about FECA (the Federal Election Campaign Act) in 2016-17, much less willfully transgressing it — which, to establish, prosecutors need to prove beyond a reasonable doubt that Trump was aware of a legal duty to comply with FECA’s contribution limits and reporting requirements, yet intentionally violated them.

With Merchan’s help, and not much resistance from defense lawyers, Bragg’s team has shrewdly conflated two very different things: the knowing and intentional burying of politically damaging information through NDAs, which is legal, and (2) the knowing and intentional flouting of FECA regulations — which would be illegal if prosecutors could prove it, but of which there is no evidence against Trump.

So why is Trump’s conviction so likely?

To begin with, the case is a constitutional travesty from its very foundations. The state penal statute invoked by Bragg is unconstitutional as applied to Trump under New York law.

<....Then there is the indictment. It put the defense on no notice of what “other crime” Trump was alleged to have concealed. As I contended yesterday, this was not an oversight; Bragg knew it would be controversial to proclaim in clear terms the power and intention to enforce federal law — against a defendant whom the federal agencies with authority to prosecute investigated and as to whom they decided, for sound legal reasons, not to bring charges. The failure to provide a defendant with notice of the charges in the indictment violates the federal Constitution — and it strongly suggests that the grand jury did not find probable cause of the other crimes that Bragg now alleges (there is no “other crime” pled in the indictment). On this point, Merchan has aided and abetted Bragg, to the point that it was not until summation, after six weeks of trial, that state prosecutors were finally clear and full-throated in urging that Trump should be convicted for violating federal law. That would be astounding in any case but is mind-boggling in the first-ever criminal prosecution of a former American president (who, not coincidentally, is the Republican presidential nominee and thus Bragg’s partisan political adversary).

Without being limited to the charges in the indictment, as prosecutors are supposed to be, they presented the case to the jury as if the charge were conspiracy to influence the 2016 election by burying politically damaging information. To say that this conspiracy appears nowhere in the indictment does not explain the half of it. It is not a crime to conspire to influence an election unless one does so by unlawful means (that’s the afore-described New York misdemeanor), and there is nothing unlawful per se about burying politically damaging information.

So how did Bragg get over those two hurdles, which should have been insuperable? With the help of Merchan and, yes, Trump.

Let me preface this by saying that the fix is in here, so maybe it didn’t matter what the defense did in this case. Still, strategically speaking, Team Trump has presented one of the most ill-conceived, self-destructive defenses I have ever seen in decades of trying and analyzing criminal cases. The reason for this is clear: Trump insisted that his lawyers subordinate his defense at trial to the political narrative he wants to spin in the 2024 campaign. In this instance, the legal and political strategies cannot be synced. Hence, Trump is helping Bragg get his coveted convictions.

<....Politically speaking, this is dumb because voters long ago made up their minds about Trump’s extramarital affairs, and if he admitted them at this point, he’d merely be admitting what is notorious and not credibly deniable. Legally speaking, Trump’s gambit is disastrous. It makes no sense in a criminal courtroom for a defendant to deny his complicity in legal conduct when there is daunting evidence that he was complicit up to his neck. The prosecutors framed the case to the jury as a criminal conspiracy to bury damaging information. That’s not a crime, and NDAs are legal. But rather than go with that, his best defense, Trump has acted guilty: As if a candidate’s suppression of negative information, rather than routine, is criminally condemnable, and as if the NDAs are radioactive — the diabolical compacts of Cohen and Pecker from which he must stay a millions miles away (a choice at which the evidence is having a hearty laugh). For Bragg, this is a gift from prosecutorial heaven.

Then there is the reimbursement of Cohen. Trump lawyer Todd Blanche actually looked the jury in the eye in his opening statement and asserted that Trump did not reimburse Cohen. But Trump is on record several times stating that he reimbursed Cohen. He tweeted it when he was temporarily seeking to enforce the NDA against Stormy. He stated it unambiguously in a financial disclosure form he filed as president. There is a document in the handwriting of Trump Organization CFO Allen Weisselberg proving that part of Cohen’s compensation in 2017 was reimbursement for the Stormy payment in 2016. And it makes zero sense that Cohen would go into his pocket 130 large unless Trump assured him he’d be paid back.

Why deny the undeniable? Because Trump knows that admitting the reimbursement is tantamount to admitting the sex with Stormy. Politically, he resists doing that because he has always denied it and can’t bring himself to concede error — not in the Trump DNA. But the elevation of his political needs (or, better, his ill-considered conception of them) has utterly undermined his defense. A defense lawyer who consciously misleads the jury in the opening statement and then gets blown up by evidence as soon as the prosecution starts presenting its case loses precious credibility. More to the point, since the NDAs were legal, the reimbursement of Cohen was legal; ergo, there was no rational reason, legally speaking, to deny it.

The roads to American prisons are paved with what in the trade we call “false exculpatory statements.” The reason is simple: People suspected of crime don’t lie unless they are trying to cover up wrongdoing. By lying about the reimbursement of Cohen, Team Trump gave immense help to the prosecutors’ plan to convince the jury that scheming to suppress politically damaging information is a crime. Why, the jury has to be wondering, would Trump lie about something so stupid unless he was worried about being implicated in “the conspiracy”?

<In an unprecedented assertion of judicial ethics oversight, Rep. Jamie Raskin (D-Md.) has stoked a legal and political debate by suggesting that the Department of Justice (DOJ) could petition for the recusals of Supreme Court Justices Clarence Thomas and Samuel Alito from cases linked to the January 6, 2021, Capitol attack. This action would be based on concerns over the justices’ impartiality, given their alleged connections to the events surrounding the attack and the “Stop the Steal” movement.

Raskin’s position, articulated in a New York Times op-ed, hinges on the assertion that the highest court, which has historically policed itself regarding ethical matters, might be subject to external pressures to enforce recusals. “Everyone assumes that nothing can be done about the recusal situation because the highest court in the land has the lowest ethical standards — no binding ethics code or process outside of personal reflection,” Raskin wrote, emphasizing the lack of a formal recusal process at the Supreme Court level and challenging this status quo.

Alito and Thomas have become focal points of controversy—Alito for flags reportedly flown at his residences associated with the “Stop the Steal” effort, and Thomas for his wife’s reported involvement in the same movement. In response to these concerns, Raskin asserts that the DOJ, including the U.S. attorney for the District of Columbia, an appointed U.S. special counsel, and the Solicitor General, who have roles in the criminal prosecutions stemming from January 6, could invoke constitutional due process and federal statute 28 U.S.C. Section 455 to legally compel their recusals.

Raskin’s argument points out the recusal statute’s binding nature on justices as it would be on any other judge, saying, “The recusal statute, if triggered, is not a friendly suggestion. It is Congress’s command, binding on the justices, just as the due process clause is.” He suggests that ignoring this would lead to a trespass on the constitutional separation of powers because the justices would essentially be claiming the power to override congressional command.

Such an intervention by the DOJ would be groundbreaking, and reactions have been mixed. While some legal observers believe the controversy over Alito’s flags is not sufficient grounds for recusal, others highlight the ethical concerns that arise when justices’ impartiality might be reasonably questioned. The current Supreme Court term has brought these issues to the forefront as justices consider several key cases involving former President Donald Trump, including his claims to presidential immunity from prosecution and challenges to the legality of charges against January 6 rioters.

The potential for the DOJ to force recusals raises intricate questions about judicial ethics and the separation of powers in U.S. government.>

<As the Supreme Court careens toward the explosive end of its term, Justice Samuel Alito keeps digging himself deeper into an ethics scandal that is equal parts comical and execrable. Alito sent a letter to congressional Democrats on Wednesday resisting their calls for him to recuse from Jan. 6–related cases, once again blaming the presence of two insurrection flags flying over his homes on his wife, Martha-Ann. A day later, the court released several opinions, including a 6–3 death penalty case authored by Alito that took familiar liberties with the law and the facts. And just a few hours after that, Chief Justice John Roberts notified Senate Democrats that he would snub their request for a meeting about ethics, citing “separation of powers concerns and the importance of preserving judicial independence.”

On a bonus Slate Plus episode of Amicus, Dahlia Lithwick and Mark Joseph Stern discussed this unholy concatenation of court-related drama as SCOTUS itself rolls right off the rails. Their conversation has been edited for length and clarity.

To listen to the full episode of Amicus, join Slate Plus.

Dahlia Lithwick: I think the merits can get lost when we talk about the flags. But there is a substantive problem that we’re starting to pick up on, and that is Justice Alito, in recent weeks, making very real and serious errors in his opinions. They’re actually prompting corrections from sources that he cites, who say, “No, my work reflects the opposite of what you’re claiming.” I’d love for you to unpack that.

Mark Joseph Stern: This happened just last week in the racial gerrymandering case out of South Carolina. Alito cited the Brennan Center, a left-leaning pro-democracy group, to support the proposition that the racial turnout gap is growing—white people are voting at significantly higher rates than racial minorities. And Alito said this fact leads to the conclusion that racial data is actually less useful in drawing maps, so the court should assume that the map-drawers didn’t look at racial data, because it’s not very useful. Even though the map-drawers in this case shifted 30,000 Black residents to a new district with almost surgical precision to make a competitive district less diverse.

The Brennan Center responded that Alito completely misunderstood its work, and in fact got it backward. Bizarrely, he cited an old blog post rather than a more recent, comprehensive analysis of this issue, which would’ve shown why he was wrong. The Brennan Center said that what it actually showed was that South Carolina has better data, on the individual and community level, about racial identity than political affiliation. If Alito had read four more sentences of the blog post he cited, or read the full report that elaborates on this issue, he would have seen that the map-drawers in this case had every incentive to look at racial data! It’s clearer and more useful than data about voters’ political preferences. Alito just butchered the Brennan Center’s analysis and used it to mean the opposite of what it meant.

He received a similar rebuke from a source he cited in his dissent from the CFPB decision, too, right?

Yes. In his dissent asserting that the Consumer Financial Protection Bureau is funded unconstitutionally, Alito cited a book by Georgetown Law professor Josh Chafetz called Congress’s Constitution. Not once, not twice, but eight times. And it’s a very good book! But Alito cited it for the proposition that the Framers would never have wanted to let a federal agency draw its budget the way the CFPB does. And that the Framers and their English forebears would have wanted the judiciary to limit how Congress funds the executive branch.

Chafetz was so irritated by this that he felt moved to tweet that Alito got it dead wrong. Because Chafetz preemptively rebutted the theory that Alito embraced: In the book, he wrote that “text of the Constitution allows for indefinite appropriations in all contexts other than the army,” which is limited to two-year appropriations. That explicitly contradicts Alito’s pseudo-originalist claim. Also, Chafetz wrote about how the appropriations power was, early on, used in a broad and nonspecific way, which Alito deemed unconstitutional. And Chafetz wrote that this power was meant as a check on the executive by the legislative, not a judicially enforceable limit on Congress. Again, that’s the opposite of what Alito asserted. Yet the justice cited Chafetz’s book for support over and over again!....>

<.....This dovetails with something we’ve talked about so much over the years, which is that the Supreme Court does not have an error-correction mechanism. It doesn’t have a roundup at the end of the week saying, “This is all the stuff that we got wrong in our opinions,” like Slate does. Once you put something false into an opinion, it becomes doctrine, and Alito is very good at this. Don’t forget, it was just last week that Justice Kagan had to tell Alito that he was misreading her own majority opinion. And there’s no corrective. It’s just choose-your-own-ending.

There’s another phenomenon, which is related but quite different: Alito seems to be substituting his own fact-finding for the work of the lower courts. We saw that again on Thursday.

This case, Thornell v. Jones, is about a man condemned to death by a judge on the basis of incomplete information: It looks like his counsel did not present all of the potentially mitigating evidence that might have led the judge to spare him from a capital sentence. And the 9th Circuit found ineffective assistance of council. The Supreme Court reversed in an opinion by—who else?—Alito. First, Alito said: We disagree with the 9th Circuit that this defendant had ineffective assistance of counsel. And that should have been the end of it.

Instead, Alito went a step further and did what the lower courts usually do, which is to re-weigh the evidence that could have been presented to the judge. He looked through thousands of pages of this very complex, highly contested record, purported to weigh the aggravating and mitigating circumstances, decided which were true and false, and drew his own conclusions. So, for instance, the defendant said he was sexually abused, and suffered brain trauma in early childhood, and experienced substance abuse and PTSD. But Alito dismissed these claims through his own appellate fact-finding, and declared that the defendant should, indeed, be sentenced to death.

As all three liberals said in their dissents, that is not what the Supreme Court is supposed to do. Yet it’s very similar to what happened in the racial gerrymandering case, where Alito looked at what the district court had found after a lengthy trial and hearing and rejected it point-by-point, saying I know better than you. This is King Alito declaring that he alone may speak the truth. What’s really alarming is that the other conservatives are going along with it. They just accept that King Alito can decree these new realities and facts and histories.

I would just add that this is entirely predictable from somebody who has proven, day after day after day, that he doesn’t believe reality. Justice Alito is at a place where he thinks the entire Justice Department is going after Trump and Jan. 6 insurrectionists because they’re witch-hunters. He believes the media is a bunch of liars and the world is out to get him. He believes the insurrectionist flag is benign, a foam finger that screams “Go George Washington.”

So yes, it’s entirely predictable that somebody like Alito would bend every single fact to conform with their own reality. That he would be the “I did my own research” justice. It’s really cognitively frightening, separate and aside from the politics of it. This is mistrust of every institution, materialized as a human being who decides the cases that control our lives.>

<The felony conviction of former president Donald Trump might or might not become a turning point in the 2024 presidential election. But its precedent-breaking outcome has sharpened the competition between him and President Biden to define the stakes and the choices for voters in November.

Almost nothing has been normal about this election, and now, above all, is the sobering reality that one of the two likely major candidates for president will run as a felon convicted on 34 counts by a Manhattan jury. No former president has ever been so judged nor sought the nation’s highest office with such a badge of dishonor.

Nearly as striking is the degree to which the hierarchy of the Republican Party — and presumably tens of millions of ordinary citizens who follow its lead — have rallied behind Trump in questioning and in many cases condemning a judicial system that has been a pillar of American democracy. Measured responses about the jury’s work have been the exception rather than the rule.

Two big questions could define the debate between Trump and Biden from here forward. The first is which candidate poses the bigger threat to the future of the country. The second is which candidate will make the lives of Americans better than they are today. Though related, the first focuses on character and temperament, the second on substance and policy.

For supporters of the incumbent president, the answers to both are simple and straightforward. It is the former president who is the clear danger, someone who vows retribution against his adversaries; would allow a restriction of freedoms, including access to abortion; favors an expansion of executive power that could lead to authoritarian rule and undermine democratic institutions; and, internationally, to disrupt or shatter traditional alliances. And it is Biden who they see as both determined to protect democratic institutions while pursuing policies that would support American families, combat climate change and advocate a leadership role for the United States in the world.

William Galston of the Brookings Institution pointed to one domestic priority Trump has talked about as an example of the threat he would pose if elected to another term. “If Trump is serious about his plan to round up and deport 10 to 15 million illegal immigrants, that would require a profound transformation of not only law enforcement but the U.S. military and many, many aspects of American society,” he said. “It would represent a profound disruption to every town and city. Ripping 10 to 15 million people out of the body politic is momentous.”

But for every Biden supporter who believes these answers are obvious, polls suggest there are as many or more supporters of Trump who believe the opposite. The New York trial has heightened distrust of the judicial system by, in their view, unfairly targeting their champion to weaken his political standing. They blame Biden for bringing the pain of inflation to many families, increasing illegal immigration, degrading society itself and, globally, overseeing a decline in American power and prestige. They believe they were better off during Trump’s presidency than they are now — and that another four years with Biden as president is the greatest threat.

The seven-week trial of Trump on charges of falsifying business records as part of an effort to affect the outcome of the 2016 election amounted to an extended freeze in a campaign that has been static since last year. The former president was required to be in the courtroom most days, silent except for regular tirades to reporters on his way out of court. Meanwhile, Biden declined to comment in any way, lest he add fuel to the assertion by Trump and his allies that the trial was part of a political effort to bring down his rival.

On Friday, both men weighed in on the verdict. Trump offered a lengthy, grievance-laden monologue, replete with falsehoods and meandering asides about the state of the country and the unfairness of the trial — a “rigged” process, as he has said repeatedly — and a claim that “we’re living in a fascist state.” Hours later, Biden defended the judicial system and declared that it is “reckless … dangerous, and it’s irresponsible” for anyone to question the verdict simply because they don’t like the outcome, while acknowledging Trump’s legal right to an appeal.

Neither candidate nor their campaigns and surrogates are likely to back away from those positions. The bigger question is whether Trump in particular can begin to pivot from the trial and campaign with a focus on the American people rather than himself. History suggests he will struggle mightily to make that turn — and his extended rant Friday provided evidence of how the trial has affected him.....>

<....Former New Jersey governor Chris Christie, a onetime Trump confidant who ran against him in the primaries, told Democratic strategist David Axelrod and Republican strategist Mike Murphy for their “Hacks on Tap” podcast last week that too much attention was being paid to how a guilty verdict would affect voters.

“It’s not just what impact it will have on voters that’s important,” Christie said, “but it’s what impact it will have on him because he will get angrier and angrier and more paranoid. And I don’t think that makes him an attractive candidate to the very narrow swath of voters that he has to try to win in order to get the presidency back.”

Democratic pollster Anna Greenberg said in an email, “Trump is going to run on rigged courts and rigged elections. I don’t think he can help himself even though it would be better for him to talk about inflation. Biden is going to run on democratic norms, women’s rights — especially abortion — and the rule of law and be able to ask voters if they want a convicted felon as their president.”

In the end, said former Republican National Committee chair Rich Bond, “The tipping point will be who voters consider the most dangerous choice. Do they stick with an aging incumbent with a questionable record? Or do they entrust their future to a convicted felon who lies about nearly everything except his desire to be a wannabe dictator?”

Three other Trump cases are pending, two involving his role in trying to subvert the 2020 election; the third charges that he deliberately withheld classified documents. Given delays in all of them, it now appears likely, though not certain, that none of the others will be heard before the election.

But the New York trial is hardly the only big event in the weeks ahead that could influence voters and perhaps change minds. On Monday, Hunter Biden will go on trial in Delaware on felony gun charges, the first of two trials that could bring convictions for the president’s son. By the end of the month, the Supreme Court is likely to issue its ruling on Trump’s claim to absolute immunity from prosecution, which could impact the federal Jan. 6 case. And on June 27, Biden and Trump will meet in Atlanta for the first of two planned debates. (A second is scheduled for Sept. 10.)

On July 11, Trump will appear in court in New York for sentencing in the hush money trial. Four days later, Republicans will gather in Milwaukee for their national convention to formally nominate Trump, and sometime in that window, he will name his running mate. Democrats will meet in Chicago in August for their convention, with fears of protests over Biden’s handling of the Israel-Gaza war.

In the short term, Trump’s conviction has energized Republicans, much as the four indictments a year ago consolidated support around his bid for the GOP nomination. From House Speaker Mike Johnson (La.) to an array of other elected officials, the Republicans seized on the verdict as evidence of a weaponized judicial system. Trump’s campaign claimed to have raised $52.8 million in online donations in the 24 hours after the verdict, and some GOP strategists see the verdict as an opportunity now to play offense against Biden by portraying Democrats as defenders of a corrupted system....>

<....Political strategists are rightly cautious about how or whether the conviction will affect the campaign. The polls have changed little for many months. Trump has been holding a slender advantage nationally and in battleground states but many of these polls are within the margin of error. They do suggest, however, that Biden faces a challenging path to an electoral college majority.

Some polls taken before the verdict indicated that a conviction could prompt some Trump supporters to peel off. Democratic pollster Celinda Lake said she is convinced that the outcome of the trial will have an impact, real or indirect, particularly in the perceptions of the character of the two candidates. “It helps shift the character axis from strength and weakness, which Trump wanted, to stability and presidential character, which serves Biden better,” she said.

Lake is part of the Biden campaign polling operation but said she was not speaking for the campaign.

The verdict does provide Biden with an opportunity to try to change the script and the Atlanta debate will be the most high-profile moment for him to do so. A Democratic strategist said one challenge for Biden until now has been that many voters had greater fears about a Biden second term than Trump returning to the Oval Office. The verdict could change those perceptions, especially with suburban women.

Many voters have expressed disappointment at having to choose between Biden and Trump. Many are cynical about the state of politics. What impact the verdict will have on them is also unknowable now, but there is a possibility that some will choose to vote for a third-party candidate or simply not vote in the presidential race.

The election is now five months away. After Thursday’s verdict, the election more than ever poses elemental questions for voters — about themselves, their own well-being and perhaps above all the country they want to see in the future. The question underlying them all is who they trust most to deliver it, Biden or Trump.>

<I do not like thee, Doctor Fell,

The reason why? I cannot tell;

But this I know, and know full well,

<[Event "67th Mass Open"] [Site "Marlboro Mass"]
[Date "1998.05.23"]
[Round "2"]
[White "Curdo, John"]
[Black "Cherniack, Alex"]
[Result "0-1"]
[ECO "A03"]
[WhiteElo "2379"]
[BlackElo "2284"]