Finally— Judicial Matters That Don’t Revolve Around Señor Trumpanzee

Slammed: Sam Bankman-Fried, Ohio GOP

Let’s start in Ohio. Yesterday, the state Supreme Court (4 Republicans and 3 Democrats) unanimously threw out the Republican Party’s last dirty shot to prevent Ohioans from voting for Choice on November 7. Jessie Balmert reported that “The GOP politicos had argued that abortion rights activists failed to include on their petitions the language of state abortion laws that would be repealed if the constitutional amendment passed. The legal challenge was filed days after abortion rights proponents cleared the signature requirement to appear on the fall ballot.”

The legal challenge was the latest in a series of GOP efforts to block or slow down the abortion rights proposal. On Tuesday, Ohioans rejected Issue 1, which would have raised the threshold needed to amend the state constitution— and made it harder for the abortion rights measure to pass.

… Ohio is the only state in the nation voting on abortion access in 2023. Six other states voted on the issue in 2022, the same year the U.S. Supreme Court overruled Roe v. Wade. That ruling sent decisions about abortion access back to state lawmakers and courts.

And the second piece of good news: bail revoked, crooked billionaire Sam Bank was dragged out of court in handcuffs and thrown into jail yesterday. Now if they would just start jailing all the members of Congress he bribed we’d really be getting somewhere! Judge Lewis Kaplan realized that house arrest at mommy and daddy’s house in Palo Alto isn’t working. “Prosecutors argued that Bankman-Fried had given documents to the media to intimidate a witness in the case. ‘He has gone up to the line over and over again, and I am going to revoke bail,’ Judge Kaplan said of Bankman-Fried after reading his ruling from the bench.”

After the order was read aloud, two U.S. marshals had Bankman-Fried remove his navy suit jacket as they prepared to handcuff him. His mother, Barbara Fried [another criminal who belongs behind bars], tried to approach him, but was cautioned to stand back by a court officer. Bankman-Fried was set to be taken to the Metropolitan Detention Center in Brooklyn.

Bankman-Fried’s lawyer said in court that he intended to appeal.

…Now he will have to prepare for his trial, scheduled for Oct. 2, from a jail cell. The court dispute over his bail focused on an article in the NY Times published last month that described private writings by Caroline Ellison, an executive in Bankman-Fried’s business empire who also dated him. Ellison has pleaded guilty to fraud charges and agreed to cooperate with the prosecutors investigating Bankman-Fried.

In court filings, prosecutors said Bankman-Fried had given the documents to The Times to intimidate Ellison by casting her in a negative light ahead of his trial. They also noted that Bankman-Fried has had numerous conversations with other journalists, including the author Michael Lewis, who is writing a book about FTX that is set for publication the week the trial begins.

Before calling for Bankman-Fried’s bail to be revoked, the prosecutors had also asked Judge Kaplan to impose a gag order preventing the FTX founder from speaking to the media before his trial.

Lawyers for Bankman-Fried said that when he gave the documents to The Times, he was exercising his rights to answer “an inquiry from the media” and that he did not breach the terms of his bail. The Times, the Reporters Committee for Freedom of the Press and a documentarian making a film about Bankman-Fried each submitted court filings raising First Amendment concerns about the gag order.

…Since his release, Bankman-Fried has been reprimanded repeatedly for behavior that prosecutors said pushed the boundaries of what he was allowed to do while awaiting trial.

In court filings in January, the prosecutors presented evidence that Bankman-Fried had sent messages to a former FTX executive who could be a witness in the case. They also said Bankman-Fried had used a virtual private network, or VPN, to access the internet.

At the time, Judge Kaplan ordered Bankman-Fried to submit to tighter bail requirements that restricted which websites he could access and prevented him from communicating with former FTX employees. Visitors to his parents’ house were prohibited from bringing phones or computers inside.

The Times’ article about Ellison included excerpts from private Google documents addressed to Bankman-Fried. At a court hearing on July 26, the prosecutors argued that the article showed Bankman-Fried was seeking to intimidate and discredit a key government witness.

“No set of release conditions can assure the safety of the community,” Danielle Sassoon, one of the prosecutors, said at the hearing. “The defendant has shown now that he is intent on exploiting the conditions of release and improperly influencing this trial.”

Good. He belongs in jail. And then prison. However… I’m worried that he will be suicided. I mean we’re talking about the Metropolitan Detention Center, where anything goes. And Bankman-Fried bribed scores of members of Congress with tens of millions of dollars— from Kevin McCarthy, Tom Emmer, Nancy Pelosi, Hakeem Jeffries right down the food chain to George Santos and Maxwell Alejandro Frost, a shady Uber driver— now in the House— who saw a sweet million dollars in stolen FTX funds funneled into his campaign. And that isn’t even bringing up the crooks in the Senate! (This photo captures Gabe Bankman-Fried, SBF's bro and bagman, auditioning Maxwell Alejandro Frost before raining cash on his Orlando campaign.)

I know I promised that this wasn’t going to be about Trump but… late yesterday, Judge Tanya Chutkan issued the protective order we all knew was coming, cautioning him against making "inflammatory statements" about the case and said that his First Amendment rights are "not absolute." Her “ruling, issued following the hearing, prohibits the disclosure of a range of ‘sensitive’ materials, including all recordings, transcripts, interview reports and related exhibits shared by the special counsel.” She said “I intend to ensure the orderly administration of justice in this case as I would with any other case. The more a party makes inflammatory statements about this case which could taint the jury pool or intimidate potential witnesses, the greater the urgency will be that we proceed to trial to ensure a jury pool from which we can select an impartial jury."

But what if Trump wants Chutkan to throw him in jail? Russell Berman wrote about that possibility, noting that Trump has been making a mockery of the legal process by consistently violating the terms of his pre-trial freedom. Yesterday, Chutkan said “Trump’s presidential candidacy would not factor into her decisions, and she rebuffed suggestions by a Trump lawyer, John Lauro, that the former president had a right to respond to his political opponents in the heat of a campaign. ‘He’s a criminal defendant,’ she reminded him. ‘He’s going to have restrictions like every single other defendant.’”

[T]he effect of Chutkan’s courtroom comments was to put Trump on notice. If he continues to flout judicial warnings, she could place a more formal gag order on him, the ex-prosecutors said. And if he ignores that directive, she would likely issue additional warnings before considering a criminal-contempt citation. A further escalation, McQuade said, would be to hold a hearing and order Trump to show cause for why he should not be held in contempt. “Maybe she gives him a warning, and she gives him another chance and another chance, but eventually, her biggest hammer” is to send him to jail.

Judges have sanctioned high-profile defendants in other cases recently. In 2019, the Trump ally Roger Stone was barred from posting on major social-media platforms after Judge Amy Berman Jackson ruled that he had violated a gag order she had issued. (Stone did honor this directive.) The Trump foe Michael Avenatti, who represented Stormy Daniels in her case against Trump and briefly considered challenging him for the presidency, was jailed shortly before his trial on extortion charges after prosecutors accused him of disregarding financial terms of his bail. “He was just scooped up and thrown into solitary,” one of his former lawyers, E. Danya Perry, told me. She said that Avenatti was thrown into the same jail cell that had held El Chapo, the Mexican drug lord. (Avenatti later claimed that his treatment was payback ordered by then–Attorney General Bill Barr; the prison warden said he was placed in solitary confinement because of “serious concerns” about his safety, and Barr has called Avenatti’s accusation “ridiculous.”)

Neither Stone nor Avenatti, however, is as high-profile as Trump, arguably the most famous federal defendant in American history. And Perry doubts that Chutkan would imprison him before a trial. Trump has ignored warnings from judges overseeing the various civil cases brought against him over the years and has never faced tangible consequences. “He has done it so many times and he has managed to skate so many times that he certainly is emboldened,” Perry said.

Indeed, Trump has also suggested he would ignore a gag order from Chutkan. “I will talk about it. I will. They’re not taking away my First Amendment rights,” Trump told a campaign rally in New Hampshire on Wednesday.

Trump’s political motives for vilifying his prosecutors and once again portraying himself as the victim of a witch hunt are obvious: He’s trying to rile up his Republican base. Trump also seems to be executing something of a legal strategy in his public statements about the trial. He’s called Washington, D.C., “a filthy and crime-ridden embarrassment,” possibly reasoning that these remarks will force the court to agree to his request to shift the trial to a venue with a friendlier population of potential jurors, such as West Virginia.

That’s less likely to work, according to the former prosecutors I interviewed. “I’d be shocked to see that be successful,” Noah Bookbinder, a former federal prosecutor who heads the anti-corruption advocacy group Citizens for Responsibility and Ethics in Washington, told me. “It’s sort of like the old joke about the child who kills his mother and father and then asks for mercy because he’s an orphan. I just don’t see a court going for that.”

Trump’s attacks also present a problem for Smith, the special counsel. On one hand, prosecutors have a clear interest in ensuring that their witnesses do not feel intimidated; on the other, Smith could feel that trying to silence Trump would play into the former president’s victim narrative. Justice Department prosecutors alerted Chutkan to Trump’s “I’m coming after you” post in a court filing, and during today’s hearing they voiced concerns that if not restricted, Trump could disclose evidence to benefit his campaign. (A Trump spokesperson said the former president’s warning was “the definition of political speech,” and that it referred to “special interest groups and Super PACs” opposing his candidacy.) But Smith’s team did not ask Chutkan to fully gag Trump or even admonish him. “You see the prosecutors being very, very restrained,” Bookbinder said. “With a lot of defendants who were bad-mouthing the prosecutor and witnesses, they would have immediately gone in and asked for an order for the defendant to stop doing that.”

Bookbinder described the citation of Trump’s post as “a brushback pitch” by the government, a signal that they are watching the former president’s public statements closely. But like Chutkan, Smith might be reluctant to push the matter very far. Fighting with Trump over a gag order could distract from where the government wants to focus the case— on Trump’s alleged crimes— and it could indulge his desire to drag out the trial, Bookbinder noted. But the special counsel has to weigh those concerns against the possibility that an out-of-control defendant could jeopardize the safety of prosecutors and witnesses. “My strong suspicion is that Jack Smith doesn’t want to go there,” Bookbinder said. “I think at some point he may have little choice.”

Maybe Trump (and Bankman-Fried) should reflect on this poem by Canadian writer Alden Nowlan, "The Executioner." They'll both get off a lot easier thab Nowlan's protagonist.

In a prison yard they slew him,

Stood him up against a wall,

Said, "You are free to say your prayers

Or tell us nothing at all."

He was pale, as pale as death,

And he said, "Well, let me see.

There's the sky that I shall ride to,

There's the earth that I must be."

He seemed to listen to a music

No one else could hear or share,

But the wall against his shoulder

Did not seem to have him there.

They turned the rifles on him

While the music held its pace,

And the flight of all his power

Was in the thudding of his face.