Thought Leadership

Professor Gregory Germain writes: The Most Important Part of Trump’s Hush Money Case begins Next Week

In this legal review, Professor Gregory Germain examines the next step in the Donald Trump hush money trial: jury instructions that are expected the week of May 27.

Media wishing to interview Professor Germain on this or related topics should email Rob Conrad, director of communications and media relations or Syracuse University’s media team by email.

The public and the press have been riveted by the parade of celebrity witnesses testifying in the first criminal trial of a former United States President.  While the public and the press speculate about whether Donald Trump really had a one night stand with Stormy Daniels, or whether the jury liked or believes Michael Cohen’s testimony, those factual questions pale in comparison to the fundamental legal issues that Manhattan District Attorney Alvin Bragg has to prove to obtain a proper conviction. 

At this point in the trial, the jury likely has no idea what this case is really about.  What comes next is the most important part of the trial, by far, where the jury is told what they have to find in order to convict Trump of the charged crime.

The first and most important step in presenting the law to the jury will be Judge Merchan’s jury instructions.  The jury instructions tell the jury what is the law that they must apply.  Proper jury instructions will identify the separate legal elements of the crime(s) that must be proven for a conviction.  Improper jury instructions will gloss over the legal issues, and make it more likely that a jury, who may not like the defendant, will convict, but also more likely that any conviction will be overturned on appeal. 

The charges against Trump are that he violated New York Penal Law § 175.10 by falsifying business records.  The business records state that Trump paid attorney fees to Michael Cohen, rather than stating that some portions of the payments were really to reimburse him for the hush money payments he made to Stormy Daniels.  Although Trump has tried to impeach Michael Cohen’s credibility, there is really no logical alternative to his testimony that Trump was aware of Cohen’s hush money payments and agreed to reimburse him.

Penal Law Section 175.10 requires a showing (1) that Trump, with the intent to defraud, [made or caused to be made] false entr[ies] in an enterprise’s business records,” and (2) that “his intent to defraud includes an intent to commit another crime or to aid or conceal the commission thereof.”  See NYPL §§ 175.05, 175.10.

Thus, the two elements require the District Attorney to prove that Trump intended to defraud, and intended to cover up a separate crime when he made or caused the false business entries. 

The judge held preliminary discussions about the jury instructions on Tuesday.  Trump argued that the jury instructions should specifically require the jury to find that the false business entries were made to “defraud” someone out of money or property.  There has been no evidence admitted at trial to suggest that business records were falsified to defraud anyone out of money or property, which is the normal meaning of “fraud.”  But there are some appellate division cases interpreting “defraud” to mean “mislead.” The prosecutor argued that the instructions should gloss over the requirement by suggesting that the business records were falsified to mislead the public. 

But there is a problem with the DA’s argument.  The false business records were made in 2017 after the 2016 election was over.  They were private business records that were not disclosed to the public.  How could they have been made with an “intent to defraud” the public when they were made after the election and without disclosure to the public? 

There was no evidence in the trial to show why the records were falsified.  I suspect that a decision was made to make the hush money payments through Cohen so that Trump’s fingerprints would not obviously be on the payments.  That might preserve some measure of deniability, although not much.  Payments made by one’s lawyer are usually on one’s behalf.

But Trump did not deny making the payments.  So the public was not misled or “defrauded: in any way by the records. 

Early in the case, the District Attorney suggested that Trump might have been disguising the payments to commit tax fraud.  But the DA introduced no evidence to support that claim.  Trump asked Judge Merchan to prevent the District Attorney from arguing the tax fraud point.  The District Attorney argued that falsifying the payment as income to Cohen rather than a reimbursement was a “tax law violation,” but Trump pointed out that there is no evidence that anyone received a tax benefit from the characterization.  The court did not rule on the issue. 

If the judge does not clarify the legal issues, the jury will surely be confused about the requirements, and the basis for the jury’s verdict may be unclear.

Similarly, the parties argued about instructions concerning David Pecker’s testimony, which suggested that there was a conspiracy to catch and kill stories.  That indeed might have been a crime, but it has nothing to do with the business entries that are the basis for the charges.  If anything, that is a separate matter that is very prejudicial and not probative of the business records charges.  The judge’s failure to instruct the jury not to consider character evidence about other crimes in determining whether Trump committed the charged business records violation may make verdict difficult to sustain on appeal.

The DA’s second requirement is to show that the business records were falsified with the intent to conceal a separate crime, separate from the “defraud” requirement.  The DA has indicated that the separate crime is New York Election Law § 17.152, which makes it a misdemeanor to “conspire to promote or prevent the election of any person to public office by unlawful means.”  This is circular since the separate crime itself requires conduct that uses “unlawful means.” 

There is, I think, a theory for establishing a conspiracy to commit a separate crime, but it has nothing to do with the separate conspiracy involving David Pecker.  Michael Cohen’s payment to Stormy Daniels was a loan made to Trump, and could be characterized as being made to influence the election.  Campaign loans, like campaign contributions, are subject to campaign finance limits, so Michael Cohen’s loan might be an illegal campaign contribution.  Trump conspired with Cohen to make the illegal campaign finance contribution loan.  Therefore, Cohen violated federal campaign finance law, and Trump violated New York Election Law § 17.152 by conspiring with Cohen to do so. 

The problem with this theory, however, is the intent requirement.  Covering up the obscure New York Election Law and the federal campaign finance violation must have been the reason for making the payment through Cohen, and there was no evidence that either Cohen or Trump were aware of these rather obscure state or federal election law provisions in connection with the loan.  Intending to hide a porn star payment seems very different from intending to hide an election law violation.  It does not make sense that they would structure the payment through Cohen, which created an election law issue, if they were aware that it created an election law issue.  Having Trump’s lawyer make the payment surely provided very little cover to Trump.  Unless they were very foolish, they were likely unaware that they were doing anything illegal by running the hush money payments through Cohen.

So we do not know what Judge Merchan’s jury instructions will say, but he seemed to be leaning towards ambiguity rather than clarity, as he has throughout the case.  Ambiguity might allow the jury to reach whatever determination they want based on their feelings for the parties and their conduct, rather than on the basis of the law.  The testimony at trial shows a lot of sleazy and unethical dealings by Trump, Pecker, Stormy Daniels and Michael Cohen.  By failing to distinguish the sleazy and unethical, from the illegal, the judge may obtain a conviction but it will be much less likely to be upheld on appeal.  And ambiguity will continue to play into Trump’s political narrative of an unfair prosecution.

Judge Merchan’s independence is on the line in these jury instructions, and he should rightly be judged in the court of public opinion by the care and clarity used in his jury instructions in a case as complex and confusing as this one.

After the jury instructions are completed, the parties will make their closing arguments.  This will be the District Attorney’s opportunity to make the case, based on the evidence, that Trump falsified business records to defraud and to commit the separate crime of conspiring to unlawfully influence the election. 

Then Trump’s attorneys will have an opportunity to point out the statutory requirements, and to argue that the evidence does not meet the legal requirements of the charged crime. 

It will then be up to the jury to decide whether the crime has been proven. 

Professor Gregory Germain writes: Gagging Trump: Is Judge Merchan’s Gag Order and Award of Sanctions Constitutional?

In this legal review, Professor Gregory Germain examines the balance between a defendant’s Constitutional First Amendment rights and the state’s right to protect the judicial process as it relates to Judge Merchan’s gag order on Donald Trump.

Media wishing to interview Professor Germain on this or related topics should email Rob Conrad, director of communications and media relations.

I have previously written about the complex, or indeed convoluted, legal requirements that District Attorney Alvin Bragg must prove in order to properly convict Donald Trump of violating New York Penal Law § 175.10, which makes it a felony to falsify business records for the purpose of “defraud[ing]” someone, and also to cover up a separate crime.  Germain, The Manhattan District Attorney’s Convoluted Legal Case Against Donald Trump Gets More Convoluted.

But there is separate mini-case going on within that criminal case that raises fundamental constitutional questions – what is the power of the court to gag a defendant from making out-of-court statements that criticize the court process or the other participants? 

Gag orders bring into conflict two fundamental rights:  the right of free speech protected by the First Amendment of the Constitution, and the right of the state to protect the judicial process.  The underlying question is whether Judge Merchan’s gag order properly balances these conflicting interests to withstand constitutional scrutiny. 

Judge Merchan’s Gag Order

Judge Merchan’s order prohibits Trump from engaging in three kinds of speech:  (1) “public statements about witnesses “concerning their potential participation” in the case, (2) public statements about court personnel, lawyers and other participants, and their family members, if “made with intent to materially interfere with, counsel’s or staff’s work in this criminal case, or with knowledge that such interference is likely to result,” and (3) any statements about jurors. 

The provisions regarding witnesses and court personnel are quite vague – what does it mean to criticize witnesses “concerning their participation?”  Trump’s disparaging public statements concerned the witnesses’ character, rather than their participation in the case.  Similarly, when are statements about court personnel designed to “interfere” with their work? 

With respect to jurors, Judge Merchan’s original gag order only protected “juror anonymity.”  His expanded order prohibited Trump from saying anything at all about jurors.  Judge Merchan stated that the broad order was “narrowly tailored” “to prevent extrajudicial speech targeting jurors and exposing them to an atmosphere of intimidation.”  But Judge Merchan has held Trump in contempt for making general comments about the political independence of the Manhattan jury pool, rather than for attacking individual jurors. 

Judge Merchan justified the other speech restrictions to prevent Trump from continuing to make statements that:

“were threatening, inflammatory, denigrating, and the targets of his statements ranged from local and federal officials, court and court staff, prosecutors and staff assigned to the cases, and private individuals including grand jurors performing their civic duty. The consequences of those statements included not only fear on the part of the individual targeted, but also the assignment of increased security resources to investigate threats and protect the individuals and family members thereof.  Such inflammatory extrajudicial statements undoubtedly risk impeding the orderly administration of this Court.” 

So Judge Merchan’s order is based on two different concerns:  (1) a concern for the safety of the participants, and (2) a desire to prevent criticism and denigration of the court process.  As discussed below, the former concern is directed to the potential responses of Trump’s supporters to his words rather than to Trump’s words themselves, and the latter concern directly impinges on Trump’s constitutional right of free speech.

Findings of Contempt and the Threat of Jail

Judge Merchan has held Trump in contempt ten times, and has fined him the maximum of $10,000, for criticizing the jury pool in Manhattan and the jury selection process, for making disparaging comments about witnesses Stormy Daniels and Michael Cohen, who are both public figures actively engaged in making public comments about him, and for criticizing the judge and prosecutors as politically biased.  In his 10th contempt order, Judge Merchan told Trump “”The defendant is hereby warned that the Court will not tolerate continued willful violations of its lawful orders and that if necessary and appropriate under the circumstances, it will impose an incarceratory punishment.” 

Are Gag Orders Constitutional?

Constitutional protections are subject to various degrees of scrutiny depending on the issues involved.  For example, governmental regulation of economic matters is reviewed under a very deferential standard –the government need only show a “legitimate governmental interest” to regulate economic matters. 

But challenges to fundamental constitutional rights like free speech are subject to the highest standard of strict scrutiny:  the government must show that the speech regulation is narrowly tailored to meet a compelling governmental interest.  This comes from the famous “footnote 4” in United States v. Carolene Products Company, 304 U.S. 144 (1938), and has been emphasized in numerous decisions of the Court after that. 

Is Judge Merchan’s gag order narrowly tailored to meet a compelling governmental interest? Gag orders are a prior restraint on free speech, since they prohibit future conduct rather than punishing past conduct.  Prior restraints on free speech are subject to the strictest scrutiny.  And prior restraints on the free speech of political candidates would presumably be subject to extra-strict strictest scrutiny. 

Judge Merchan cited three Supreme Court cases to justify the Trump gag order, without discussing the holdings. 

First, in Landmark Communications, Inc. v. Virginia, 435 US. 829, 842-843 (1978), the Court overturned the criminal conviction of a newspaper publisher who had identified the judge who was being investigated in a judicial conduct proceeding, which proceeding, under Virginia law, was supposed to be secret and confidential.  The state attempted to justify the secret and confidential nature of judicial conduct proceedings by identifying various legitimate state interests in maintaining confidentiality:  confidentiality encourages the filing of complaints and investigations of possible wrongdoing, protects the judge being investigated against the damage from publicity of unwarranted complaints, and it maintains confidence in the judiciary.  The court overturned the publisher’s conviction finding the justifications insufficient to abridge the publisher’s free speech rights.  “The publication Virginia seeks to punish under its statute lies near the core of the First Amendment, and the Commonwealth’s interests advanced by the imposition of criminal sanctions are insufficient to justify the actual and potential encroachments on freedom of speech and of the press which follow therefrom.”  Id. at 838.

But the Court in Landmark went on to point out that the state’s justifications should not even be given weight in the constitutional balance. 

“Moreover, neither the Commonwealth’s interest in protecting the reputation of its judges, nor its interest in maintaining the institutional integrity of its courts is sufficient to justify the subsequent punishment of speech at issue here, even on the assumption that criminal sanctions do in fact enhance the guarantee of confidentiality. Admittedly, the Commonwealth has an interest in protecting the good repute of its judges, like that of all other public officials. Our prior cases have firmly established, however, that injury to official reputation is an insufficient reason “for repressing speech that would otherwise be free.” The remaining interest sought to be protected, the institutional reputation of the courts, is entitled to no greater weight in the constitutional scales.

Id. at 841-42 (citations omitted).  Thus, Landmark says that Judge Merchan’s concern for protecting the integrity of the judicial process or the reputations of the participants is not given weight against Trump’s constitutional right to speak. 

The Landmark court went even further by suggesting that the standard for assessing threats borders on the “clear and present danger” test:

In a series of cases raising the question of whether the contempt power could be used to punish out-of-court comments concerning pending cases or grand jury investigations, this Court has consistently rejected the argument that such commentary constituted a clear and present danger to the administration of justice. What emerges from these cases is the “working principle that the substantive evil must be extremely serious and the degree of imminence extremely high before utterances can be punished,” and that a “solidity of evidence,” is necessary to make the requisite showing of imminence. “The danger must not be remote or even probable; it must immediately imperil.”

Id. at 844-45 (citations omitted). 

One has to wonder whether Judge Merchan read the Supreme Court’s decision in Landmark before citing it as a basis for his gag order, as his justifications for the gag order would not even be given weight in balancing Trump’s free speech rights.  And Landmark does not deal at all with the even stronger concerns about prior restraints as opposed to post-speech punishments. 

The second case cited by Judge Merchan in support of the gag order is Sheppard v. Maxwell, 384 US 333 (1966), a famous case in which Sam Sheppard, a prominent neurosurgeon, was convicted of bludgeoning his wife to death.  The issue in Sheppard was whether the criminal defendant received a fair trial when the trial court made no effort to protect him from negative publicity reaching the jury.  In Sheppard, there were many things the court could have done to assure a fair trial without impeding freedom of speech and the press:  better jury sequestration, change of venue, separating the participants from the press, controlling the dissemination of information.  The Court said that the judge, who was up for re-election, created a “carnival atmosphere” in the courtroom that denied Sheppard his constitutional right to a fair trial.  The focus of Sheppard was to protect the defendant’s constitutional fair trial right; there is nothing in Sheppard that supports a gag order preventing the defendant from criticizing the court or other participants. 

Finally, Judge Merchan cited Nebraska Press Assn v. Stuart, 427 U.S. 539 (1976), which involved a gag order preventing the press from publishing certain incriminating information about the defendant in order to protect the defendant’s right to a fair trial.  The case thus involved a direct conflict between two constitutional rights:  the defendant’s constitutional right to a fair trial, and the free speech rights of the press under the first amendment.  Once again, the Court held that the gag order was invalid because the trial court failed to consider other means to assure that the defendant received a fair trial, noting the extremely high constitutional standard for prior restraints on speech. 

So none of the cases cited by Judge Merchan support his gag order.  Sheppard and Stuart involved the defendant’s right to a fair trial, not restraints on a defendant’s speech, and neither case upheld or suggested the use of a gag order. Landmark specifically rejected the notion that a general concern with the public’s respect for the judicial process even counts in the balance against a constitutional right to free speech. The string citation of these important Supreme Court cases does not show the careful analysis of the law that one would expect when issuing an order preventing a presidential candidate during an election from exercising his First Amendment speech rights.

The DC Circuit’s Gag Order Against Trump

Judge Merchan’s gag order was modeled after the decision of the federal Court of Appeals in United States v. Trump, 88 F.4th 990 (D.C. Cir. 2023), although the gag order in that case applied to all of the trial participants, not just Trump.  The D.C. Circuit upheld but modified the trial court’s gag order in the federal election interference case brought by prosecutor Jack Smith.  That case is currently on appeal to the United States Supreme Court concerning the scope of presidential immunity.  

Unlike Judge Merchan’s gag order, the D.C. Circuit’s 39 page opinion contains significant legal analysis and support.  The opinion begins by recognizing Trump’s strong constitutional free speech rights, noting that “the First Amendment `has its fullest and most urgent application’ to speech uttered during a campaign for political office” and that “the First Amendment generally shields ‘insulting, and even outrageous, speech.’” 

The DC Circuit also recognized that “Certain ‘historic and traditional categories’ of speech receive no First Amendment protection, such as defamation, incitement, ‘[t]rue threats of violence,’ and obscenity.” 

But then the DC Circuit deviates from Supreme Court doctrine to state the broad principle upon which its opinion rests – that the court “system” (separate from the defendant’s constitutional right to a fair trial) has a compelling interest in protecting its “integrity” that should be weighed against the defendant’s constitutional right of free speech.  And that the courts have broader latitude in restraining the participants in the case than in restraining non-participants. 

The DC Circuit put a great deal of emphasis on the Supreme Court’s decision Gentile v. State Bar of Nevada, 501 U.S. 1030, 111 S.Ct. 2720, 115 L.Ed.2d 888 (1991), where the Court overturned the criminal conviction of a lawyer for the defendant, who had made out-of-court statements about the police being corrupt, and was later convicted for violating a Nevada state bar statute that prohibited an attorney from making “an extrajudicial statement . . . that . . . will have a substantial likelihood of materially prejudicing an adjudicative proceeding.” 

After reading the DC Circuit’s opinion, you would think that the Court affirmed Gentile’s conviction.  In fact, the Court overturned Gentile’s conviction, holding that Gentile’s statement as a matter of law did not have a substantial likelihood of prejudicing the proceeding.  Nevertheless, the DC Circuit took comfort in the Court’s statement that “the First Amendment allows a court to prohibit the speech of a trial participant when the speech poses a ‘substantial likelihood of material prejudice’ to an adjudicative proceeding.” 

The DC Circuit took that thin reed of dicta to conclude that the courts can limit participant “outside speech and influences [so that they] do not derail or corrupt the criminal trial process. On this record, the constitutional path for the presiding judge to protect both free speech and the fair and orderly administration of justice was not to limit what outsiders can say about the trial or trial participants, but to appropriately delimit what trial participants, including the accused, can say publicly to other participants, witnesses, or outsiders.” 

The Court then suggested that Trump’s public comments about witnesses like Mark Meadows may have been designed to influence their testimony, and since the criminal law would prevent Trump from directly influencing a witness’s testimony, a gag order could prevent him from indirectly through the media attempting to influence a witness’s testimony.  Judge Merchan expressed no similar concern about Trump indirectly attempting to influence witness testimony by his public statements.

Similarly, the DC Circuit stated that “threats” against court personnel could “generate alarm and dread” or “trigger extraordinary safety precautions” that would “hinder the trial process and slow the administration of justice.” That of course might be true of true “threats,” but is it also true of public criticism?  This is a very vague concern that ignores the law of incitement, discussed below. 

To balance the defendant’s free speech rights against protecting the judicial process, the DC Circuit added language preventing Trump from making statements about witnesses only if the statements “concern[ed] their participation” in the trial, and added language restricting statements about court personnel if he could reasonably foresee that it would interfere with their job. 

Judge Merchan copied the DC Circuit’s language, limiting the gag order to statements about witnesses “concerning their participation,” and added language about “intending to interfere” for court personnel and opposing lawyers. 

But the application of the DC Circuit’s language is opaque.  Does the following tweet by Trump concern Michael Cohen’s “participation in the trial”:  “If anyone is looking for a good lawyer, I would strongly suggest that you don’t retain the services of Michael Cohen!”  Or does calling Michael Cohen a “liar” before he testified “concern his participation,” or does it concern his character?  Does saying Judge Merchan is “politically compromised” prevent him from doing his job?  I do not think the standard articulated by the DC Circuit is not clear enough to be workable, and the law requires injunctions to be clear so that the enjoined parties understand what they can and cannot do. 

The First Department Appellate Division Order

Trump brought a proceeding under Article 78 of the New York Civil Law and Practice Rules (CPLR) seeking to overturn Judge Merchan’s gag order.  The Appellate Division for the First Department held that Article 78 relief is discretionary, and, noting that a similar gag order was approved by the DC Circuit, denied his request.  The Appellate Division said that the participants have a right to be free from “threats, intimidation, harassment and harm.” The Court did not seem concerned about abridging Trump’s constitutional right to speak. 

Trump’s Prospects for Overturning the Gag Orders.

So far Trump has lost every attempt to challenge the gag orders.  While the courts have paid lip service to his free speech rights, the courts have put their concerns for the judicial process ahead of his constitutional speech rights. 

There is no doubt that courts have a fundamental responsibility to protect the safety of court personnel, witnesses, jurors, and other participants.  And there are legitimate concerns in this case for the safety of the participants.  Trump’s supporters have doxed and threatened his opponents.  The DC Circuit said:

The district court made a factual finding that, “when Defendant has publicly attacked individuals, including on matters related to this case, those individuals are consequently threatened and harassed.” Mr. Trump has not shown that factual finding to be clearly erroneous, and we hold that the record amply supports it.

When Trump publicly attacks his opponents with words, his supporters have responded with threats and harassment.  And there is a legitimate concern that his supporters might resort to violence, as we saw on January 6, 2021, when, following a Trump call to stop Congress from certifying Biden’s election, Trump’s supporters invaded the US Capitol. 

But can Trump’s constitutional right to free speech be abridged because of the way that his supporters might react to his words?  The Supreme Court has addressed this question in the incitement cases. 

The starting point is Brandenberg v. Ohio, 395 US 444 (1969), where a Ku Klux Klan member invited the media to his farm to film a Klan meeting where they burned a cross and made racist and violent statements against blacks and jews.  Brandenberg was convicted under an Ohio criminal statute for advocating violence and criminal conduct. 

But the Supreme Court overturned his conviction, holding that Brandenberg’s belief in and advocacy of violence was protected speech under the First Amendment.  The Brandenberg rule prevents the state from punishing speech even advocating violence unless that speech incites or produces “imminent lawless action and is likely to incite or produce such action.”  The speaker must not only advocate violence, but must encourage that it be committed promptly, and provide a road map for its commission. 

The same rule was applied in NAACP v. Claiborne Hardware Co., 458 U.S. 886 (1982), where the NAACP organized a boycott of white businesses as a civil rights protest.  Charles Evers, the Field Secretary of the NAACP, made several speeches suggesting that black people who violated the boycott would “have their necks broken by their own people,” and “If we catch any of you going in any of them racist stores, we’re gonna break your damn neck.”  The owners of the boycotted stores sued the NAACP for lost profits from the boycott due to Evers’ threats of violence.  The Court, citing Brandenberg, held that Evans’ speech was protected by the First Amendment because it did not incite imminent lawless action.

Trump’s statements about the trial have not directly and explicitly called for violence, and certainly would not meet the incitement test of imminent lawless action.  It is difficult to see how Trump’s speech could be curtailed because of the concern that his supporters might respond with harassment or even violence when he did not explicitly incite an imminent lawless response.  Risks of violence exist in every legal case, and are especially concerning in in high profile cases involving celebrities.  The courts surely could prohibit participants from inciting imminent lawless action or violence, but they cannot prohibit protected speech out of concern for the potential response of third parties.  Instead, the court must rely on law enforcement to protect the safety of the participants.  The concern for the response of supporters is not a legitimate basis for infringing on Trump’s constitutionally protected speech rights.

Furthermore, the court has repeatedly recognized in the cited cases that the integrity of the judicial process is fair game for public criticism.  Judge Merchan cannot use his authority to prevent Trump from criticizing his decisions or his independence.

The Future of the Gag Order

In my opinion, the gag orders are not narrowly tailored to protect a compelling governmental interest, because there are many things the court could do to protect jurors and witnesses from being influenced by Trump’s public statements if that’s the real concern.  Criticism of the judge and the judicial process is plainly protected speech.  The gag orders also contain both vague and overbroad language under which he could be, and has been, punished even though his statements were protected speech.

Trump’s problem is that the lower courts are not likely to take his constitutional claims seriously, and it is a long road to get his constitutional claims from the state courts to the United States Supreme Court.  I strongly doubt that the Supreme Court would consider intervening in a state court proceeding involving merely monetary sanctions in the thousands of dollars.  Those sanctions can be challenged in due course on appeal, and would likely not be reviewed by the Supreme Court.

However, the calculus changes materially if Judge Merchan decides to put Trump in jail for violating the gag order.  Jailing a presidential candidate during an election for engaging in speech would cause a constitutional crisis.  If the state appellate courts did not promptly intervene, I believe the Supreme Court would intervene by certiorari to promptly hear his constitutional challenge to the gag order.

Trump and Judge Merchan have been engaged in a game of chicken over the possibility of a prison sentence.  The repeated $1,000 sanctions awards have not stopped Trump from flouting the gag order by criticizing the court, the process and the witnesses.  In response to Judge Merchan’s jail threat, a defiant Trump has said “I’d be proud to go to jail for the Constitution.”  They are on a collision course for control, and, if Judge Merchan takes the bait, their tiff may ultimately lead to a clear Supreme Court ruling on the future scope of gag orders, which is probably long overdue.

I do not believe Judge Merchan’s gag order would withstand constitutional scrutiny before the Supreme Court, which has been very protective of First Amendment speech rights. The Court might allow a very clear and very limited gag order to prevent speech that would not be protected by the First Amendment, such as genuine incitement, but Judge Merchan’s broad, one-sided order preventing Trump from criticizing the court and witnesses, while not prohibiting the witnesses from criticizing him, is not consistent with the Court’s free speech precedent.

Professor Kevin Noble Maillard Writes on the Intersection of Indigenous Rice Crops and Climate Change

Professor Kevin Noble Maillard has contributed “How Wild Rice Forecasts Climate Change” in The New York Times. Maillard examines how manoomin, a crop vital to the Indigenous peoples of the Upper Midwest, has been threatened in recent years due to climate change and how it is being restored.

Maillard notes, Climate change and human impact have significantly depleted the natural abundance of manoomin, the “good berry” as wild rice is known in Anishinaabemowin, an Indigenous language also known as Ojibwe, and protecting it is synonymous with preserving cultural identity.

He continues, Threats to wild manoomin have spurred restoration movements in Indigenous nations, and legal and educational institutions have stepped in to help. The White Earth Nation has sought to enforce the “rights of manoomin” under several historic treaties, and a number of Indigenous bands have partnered with universities for research and data collection. As Karen Diver, the senior adviser to the president of the University of Minnesota for Native American affairs, explained, “researchers are impacted and informed not just by science, but by understanding the cultural values of the tribe.”

The full article may be behind a paywall.

Yohannes Takele Zewale LL.M.’19, S.J.D.’24 Successfully Defends Dissertation for Doctor of Juridical Science Degree

Yohannes Takele Zewale, LL.M.’19, S.J.D.’24, successfully defended his dissertation for the Doctor of Juridical Science (S.J.D.) degree. Zewale passed the oral defense of his dissertation with no revisions, becoming the first student to receive his S.J.D. from the College of Law.

In his dissertation, titled “Representation and Persons with Disabilities in Legislatures: A Proposed Model of Approval Representation,” Zewale discusses the lack of descriptive representation of disabled people in legislatures, as well as the limited research on the topic. To address this shortcoming, Zewale proposes a new model of “Approval Representation”, which seeks to increase descriptive representation based solely on voter preferences. His model is an alternative to the model of Descriptive Representation, which has been used in many countries to promote the representation of women and racial, ethnic, and religious minorities. Only five countries’ laws include quotas requiring the descriptive representation of disabled people in their legislatures, and all these countries are in the African region.

“Not only is Yohannes’ dissertation significant for its comprehensiveness (at 270 pages), its originality (there is only one other article on the topic), and its use of qualitative research methods to support its claims (following receipt of Institutional Review Board approval, he conducted interviews with 12 disabled people who serve in legislatures), but this dissertation is also significant because it shines a light on countries that are too often ignored by a research field largely dominated by Western scholars. The fact that the first five countries that have instituted policies to ensure representation of disabled people in their legislatures are all within the African region is a topic worthy of research in itself,” says Professor Arlene Kanter, Faculty Director of International Programs and dissertation advisor to Zewale.

Zewale has published one of the chapters from his dissertation in the Harvard Online International Law Journal and a separate chapter in the African Disability Rights Yearbook.

Zewale earned his LL.B. and his first LL.M. from Addis Ababa University in Ethiopia, in 2015 and 2018, respectively. He received his LL.M., as an Open Society Fellow, with a concentration on international and comparative disability law, from the College of Law in 2019. He has held positions at the Addis Ababa University School of Law, the Ethiopian Center for Disabilities and Development (ECDD), and different organizations. He is currently working for various non-governmental organizations at both national and international levels.

Professor Jenny Breen’s Article “Labor, Law Enforcement, and ‘Normal Times’” Cited in a Concurring Eleventh Circuit Opinion, Edwards v. United States Attorney General

Professor Jenny Breen’s article “Labor, Law Enforcement, and ‘Normal Times’: The Origins of Immigration’s Home within the Department of Justice and the Evolution of Attorney General Control over Immigration Adjudications”, 42 Hawai’i L. Rev. 1, 58 (2019) was recently cited in a concurring opinion in the United States Court of Appeals for the Eleventh Circuit. The case, Edwards v. United States Attorney General, considered whether an immigrant was entitled to relief from removal based on a modification to his state court criminal conviction. In reaching its decision that the immigrant was not entitled to relief from removal, the Eleventh Circuit had to consider the impact of an opinion by then-Attorney General William Barr that overturned a long string of precedent on the relationship between state court criminal convictions and removal orders.

Though he agreed with the panel that the new rule applied to the immigrant petitioner in this case, concurring Judge Adalberto Jordan expressed concern about courts mechanically giving retroactive effect to Attorney General opinions like the one at issue in this case. Part of Judge Jordan’s concern was grounded in the unpredictable nature of these opinions and particularly how those opinions have evolved in recent decades.     

Professor Breen’s article examines the highly discretionary and unchecked power of the United States Attorney General to review decisions in individual immigration adjudications. Her empirical survey of decades of these decisions revealed that the Attorneys General of the administration of President George W. Bush wrought a profound transformation in the use of this formerly rarely used power, one that slowed briefly during the administration of President Obama, and then accelerated again under President Donald J. Trump.

In his concurring opinion, Judge Jordan cited Professor Breen’s research as demonstrating the ways in which the Attorney General has increasingly used the particular procedural mechanism of Attorney General self-referral to “reshape immigration procedure and settled areas of immigration law” in recent decades. Though declining to “voice any opinion on whether these vacillating policy decisions are substantively good or bad (individually or collectively) for the body politic in general or the immigration system in particular,” Judge Jordan urged his colleagues to convene en banc to reconsider Eleventh Circuit precedent on this important issue.  Judge Jordan observed that “in light of these mercurial changes, the notion of automatic retroactivity (á la Yu) for Attorney General rulings (and similar administrative decisions of general applicability) seems ill-advised.”

Professor Breen’s article also considered the historical development of immigration enforcement, charting its politically controversial move out of the Department of Labor and into the Department of Justice during the administration of President Franklin Roosevelt.

The case is Edwards v. United States Attorney General, 97 F.4th 725 (11th Cir. 2024) (Jordan, J., concurring). 

Proferssor Gregory Germain writes “The Manhattan District Attorney’s Convoluted Legal Case Against Donald Trump Gets More Convoluted”

Professor Gregory Germain has written a legal analysis of the Trump hush money case.

To request an interview with Professor Germain, please contact Ellen James Mbuqe, executive director of media relations, at ejmbuqe@syr.edu or Rob Conrad, College of Law Director of Communications and Media Relations at rtconrad@syr.edu.

Manhattan District Attorney Alvin Bragg has charged Donald Trump with a “Class E” felony (the lowest felony in New York) under New York Penal Law § 175.10, for reimbursing his prior attorney, Michael Cohen, the $130,000 Cohen paid to Stormy Daniels to sign a non-disclosure agreement in the waning days before the 2016 election, and disguising those payments as attorney fees.  What does the District Attorney have to prove under NYPL § 175.10?

The case requires peeling an onion containing multiple layers of legal doctrine leading nowhere.

First, NYPL § 175.10 requires proof that the defendant committed a misdemeanor under NYPL § 175.05 (“A person is guilty of falsifying business records in the first degree [175.10] when he commits the crime of falsifying business records in the second degree [175.05], and . . . ”).  So the first step is for the District Attorney to prove the misdemeanor under Section 175.05.

Section 175.05, in turn, provides that the defendant is guilty of a misdemeanor “if, with the intent to defraud, you make, or even cause through other means, a false entry in an enterprise’s business records.”

So the District Attorney must first prove that Trump made the false business records “with the intent to defraud” in order to satisfy the misdemeanor under Section 175.05 that is a predicate to the felony under Section 175.10.  The District Attorney has not explained who Trump intended to defraud by falsifying the business records.

There are some appellate division cases that have suggested that a showing of intent to mislead is sufficient to satisfy the “defraud” requirement, although that loose reading of a criminal statute is dubious because criminal statutes are normally strictly interpreted, and “defraud” has a well-defined legal meaning.  Why would the legislature use the word “defraud” if they intended to criminalize an intent to mislead someone without the usual additional requirements for fraud, like proving that a victim suffered damages by relying on the truth of the misrepresentation.

In addition, the two year statute of limitations on the misdeamenor (New York law, CPL § 30.10(2)(a)) expired long ago, and the District Attorney did not charge Trump with the misdemeanor.  It is not clear whether the felony can stand when the misdemeanor is time barred.  The felony statute requires showing that the misdemeanor was committed, since the felony is really a penalty enhancement on the misdemeanor.

Second, in order for the business records misdemeanor to be bumped up to a Class E felony under Section 175.10, “his intent to defraud includes an intent to commit another crime or to aid or conceal the commission thereof.”  So, in addition to proving that the business records were falsified to “defraud” someone, the District Attorney must show that Trump falsified the records to commit “another crime” separate from the fraud.

Judge Marshan allowed the District Attorney to proceed with the criminal prosecution without detailing exactly what the “fraud” or “other crime” was.  The District Attorney merely suggested that Trump may have committed state tax fraud, or violated the federal election laws, or violated New York election laws, but was not required to spell out the violations, or to pick which of them applied to each of the two separate crimes that must be proven under Section 175.10.

Well, now the District Attorney has told the court which horse he intends to ride in the case. It’s New York Election Law § 17.152. What is that?

New York Election Law § 17.152 makes it a misdemeanor to “conspire to promote or prevent the election of any person to public office by unlawful means.”  There are very few cases applying this rather obscure statute, but on its face it requires showing an “unlawful” conspiracy.  So the misdemeanor requires proof of intent to “defaud,” the felony requires proof of intent to commit or cover up an independent crime, and the independent crime requires proof of a conspiracy by “unlawful means.”  What is the “fraud” or “unlawful means?”

Oh, and that Election Law misdemeanor is also barred by the two year statute of limitations on misdemeanors.

The District Attorney and many pundits have suggested that these three statutory requirements can be met merely by showing that Trump made the false records intending to influence the election.  But everything that every candidate does is an attempt to influence an election.  To constitute a felony, the acts to falsify records must have been “fraudulent” and “unlawful,” and that’s the catch.  What makes paying hush money “fraudulent” and “unlawful?”  Running for office is not like selling securities to the public.  There is no statute requiring full disclosure of all material facts.  Politicians have the highest level of free speech protection for their campaigns.

Some experts have suggested that the District Attorney does not need to prove that the underlying payment to Stormy Daniels was a crime, only that Trump thought it was a crime.  I disagree.  One cannot “intend” to commit or cover up a crime if what one intended to do was not a crime.  Yes, there are cases saying that the prosecutor need not charge and convict the person of the independent crime, but that does not excuse the prosecutor from proving that the intended act was in fact a crime.  If someone created false business records to cover up what they thought was a crime, but what they thought was a crime was in fact legal, then they would not be guilty under the statute.  Cases like People v. Taveras, 12 NY 3d 21 (2009), which held that the Section 175.10 only requires a showing of intent to commit the crime, even if the person did not go through with the crime, or People v. Thompson, 124 A.D. 3d 448 (NY App Div. 2015), which held that the person does not have to be charged with or convicted of the separate crime, are not on point.  What was intended must be a crime, and the District Attorney must prove that it was or would have been a crime if the defendant followed through, in order to meet the statutory requirement.  Falsifying business records with intent to commit a legal act is not a crime under the statute.

The District Attorney will be able to prove the facts that he has alleged.  Despite Trump’s denials, the argument that Michael Cohen paid $175,000 to Stormy Daniels on his own does not seem credible.  There surely was an understanding that Trump would reimburse Cohen for the payments.  We do not know why the payments to Stormy Daniels were made by Michael Cohen.  I suspect that someone (maybe Michael Cohen) suggested structuring the payments that way to prevent a paper trail back to Trump, so that he could plausibly deny paying hush money to a porn actress if the payment became public.

But why were those payments “unlawful” or “fraudulent?”  Who even knew about and could have been misled by the false business records at the time of the election?  How would Trump even know about the obscure New York Election Law § 17.152 provision that he is being accused of intentionally concealing?  These are fundamental problems with the legal theory underlying the case.

But if it would have been legal for Trump to have paid Stormy Daniels directly, then disguising the payments through Michael Cohen did not show an “intent to . . . conceal another crime,” nor a conspiracy to “unlawfully” influence an election.  The District Attorney’s case is now based on three criminal statutes all of which depend on separate frauds or crimes that have not been clearly alleged or proven.

Where does the case go from here.  The outcome of the trial will likely depend on Judge Merchan’s jury instructions.  Will Judge Merchan’s instructions require the jury to identify the specific fraud and independent unlawful act made to influence the election separate from the business records falsification, or will the instructions only require proof that Trump tried to hide his hush money payments to influence the election, ignoring the requirement to clearly identify a separate fraud and unlawful act.

If Trump is convicted, will Judge Merchan sentence him to prison on a first-time non-violent Class E felony, creating a constitutional crisis in the middle of the election?  Or merely give him probation and leave him free to rail against the corrupt judicial process while appealing his conviction.  If the judge sentences Trump to prison, will it be upheld on appeal?  And if Trump goes to prison, what happens to the election?

If the Democratic Party thought that this prosecution would benefit their election, I think they blundered badly.  Trump is benefitting from the publicity, successfully portraying himself as the victim of a political witch hunt.  Ultimately, the election will not be decided by the courts.  Trump could run for and be elected president whether he’s convicted and sent to jail or not.  And the greater the penalty, the more likely he will win the election.  Knowing that they can’t knock Trump out of the race, what is the prosecution’s end game?

Academics from Adam Mickiewicz University Visit the College of Law for Research Projects

The College of Law’s Memorandum of Understanding with Adam Mickiewicz University (AMU) in Poznań, Poland continues to provide opportunities for academic collaboration between the Universities. Most recently, three academics from AMU spent a few days in Syracuse between stops in Washington, DC, and New York City as part of their research trip to the United States, possible thanks to financing through the Polish National Research Centre. The visit to Syracuse was facilitated by the College of Law’s Office of International Programs.

The visitors were:

Igor Gontarz, a Ph.D. student at the Doctoral School of Social Sciences of AMU, where he is preparing a dissertation under the supervision of Professor Dr. Hab. Wojciech Piątek [1]. His scientific interests focus on the automated activity of public administration (especially towards the citizen), the issues of judicial review of algorithmic decision-making, and challenging automated activity. He is the principal investigator in the research project “Control of Automated Decision-making Systems Employed in Administrative Proceedings” and a team member on the project devoted to “Appealability of Administrative Court Judgments”.

Professor Wojciech Piątek is a professor of administrative law and procedure at AMU. He has authored more than 100 papers focused on administrative, administrative enforcement and court administrative proceedings from the European, comparative, and national (Polish) legal perspectives. He is the principal investigator in research projects devoted to supervision over courts and judges, appealability of administrative court judgments, and simplifications in administrative proceedings in Visegrad Countries.

Michał Szudrowicz is a Ph.D. student at the Doctoral School of Social Sciences at AMU, where he is preparing a dissertation under the supervision of Professor Dr. Hab. Andrzej Skoczylas, who is a Polish Supreme Administrative Court judge. His scholarly interests focus on communication between courts and society as well as the operation of the open justice principle (with particular reference to administrative courts). He is a team member on the research project “Appealability of Administrative Court Judgments”.

Their visit to the College of Law started with a tour of the Law Library where they were given information on research services they could use for their scholarship by Christine Demetros, Assistant Director for Student Learning. Then Professor Piątek attended Professor Keli Perrin’s L’04 Regulatory Law and Policy class.

“Professor Piątek gave a brief overview of how administrative law is structured in Poland. Poland is a civil law country with a Supreme Administrative Court and a Constitutional Tribunal. The United States has a common law legal system and neither of those courts. It was a wonderful comparative law discussion,” says Perrin.

Gontarz and Szudrowicz presented on their dissertation topics to a group of College of Law students and faculty. Later, the group was hosted by the Hon. Thérèse Wiley Dancks L’91, United States Magistrate Judge for the Northern District of New York, for an informal discussion about the federal court system and the court system in Poland.

The visitors finished the day by attending Professor Brian Gerling’s L’99 Technology Law and Innovation Practice class.

Their second day began with a meeting with University Professor David Driesen, who visited AMU to research Poland’s democratic decline for his book, “The Specter of Dictatorship: Judicial Enabling of Presidential Power.”

“Since my visit, the opposition to the autocratic Law and Justice Party has taken control of the Parliament, so I was eager to learn more about how the process of restoring democracy was going. I learned a lot about that in speaking with Professor Piątek and his students. And I was pleased to be able to share some details about our administrative law system relevant to their research,” says Driesen.

The formal part of their visit concluded with Professor Piątek delivering a lecture together with Dr. Kamil Joński, from SGH Warsaw School of Economics to the College of Law faculty on “New” versus “Old” judges in the Polish Supreme Administrative Court – is it important which judge adjudicates your case?

An important part of the visit to the College of Law was the opportunity for the visitors to casually meet and interact with ISPL students during breaks by using the Institute for Security Policy and Law (ISPL) as a workspace, kindly provided by ISPL Director the Hon. Jamie Baker.

“You might not think there would be a lot of crossovers between administrative law professors and students and national security, but we had a lot of discussions pertinent to the rule of law and democracy,” says Faculty Fellow Maria Cudowska. ““One of the reasons why ISPL is a great hub for international visitors are the people who work here. Our research assistants are an invaluable asset of the College of Law community, they are deeply invested in creating a collegial and collaborative environment.”

Because their visit was so short, it would be hard to make connections and rapport with College of Law students and faculty if not for the ISPL.

“I have to give credit to the ISPL research assistants who went above and beyond in making our visitors feel welcome. The Ph.D. students are about the same age as the law students so that made a difference for both sides in establishing relationships,” says Cudowska.

The AMU visitors found their brief stay in Syracuse very beneficial to their scholarship and created lasting connections with faculty and students.

“The aim of our stay was exclusively scholarly. Our goal was focused on presenting our research whilst learning from our American counterparts by attending classes and performing library research on the system of appealing administrative decisions of administrative bodies (agencies) to the American courts (both at federal and state levels) as well as how the judiciary and public administration are open to citizens’ needs (mainly at the courts level – the idea of open justice) and to what extend they are digitalized (mainly at the public administration level in issuing and controlling of automated decisions.)

In reality, we received much more information than we expected. The consultations with Professors Driesen and Perrin gave us a deep view of the American administrative procedure and judiciary. The discussions had both a theoretical and a practical perspective. We got to learn many details that are not easily accessible in books. The same impression is connected with the presentations that we gave to professors and students.

In addition, research done in the library was entirely useful. We had an opportunity to go through electronic and manual sources and collected a broad array of materials and documents that now are a remarkable point for studying American administrative procedural law.

The social component of our short stay in Syracuse is worth stressing. We met many friendly scholars who offered us their time and company coffee in the Institute for Security Policy and Law as well as caps and scarfs from the Syracuse University store that were useful during the freezing Syracuse days.

Undoubtedly, we will keep in mind all our experiences from Syracuse with a hope for a comeback!” said the visitors from AMU.

[1] Habilitated doctor (Eng.), doktor habilitowany (PL). An academic degree awarded to a person who holds a doctoral degree; has scientific or artistic achievements, which constitute a significant contribution to the development of a specific discipline, Act of 20 July 2018, the Law on Higher Education and Science
Place of publication: (Dz. U. z 2023 r. poz. 742, z późn. zm.)

Professor Roy Gutterman L’00 Writes “Spectacle of O.J. Trial is One Reason We Won’t Get to See Trump’s”

Every generation has a Trial of the Century. The recent death of O.J. Simpson resurrected a courtroom drama that continues to span generations. As the Trial of the Century closes in on its 30-year anniversary, a new legal drama is about to unfold in a New York City courtroom: People of the State of New York vs. Donald J. Trump.

Cable news anchors in front of the courthouse in New York City breathlessly invoked the term “historic” for former president Donald Trump’s hush money criminal trial within a week of the death of the protagonist of one of the biggest courtroom dramas the public has seen.

The public should get to see Trump on trial. But we won’t, in part because of the circus the Simpson murder trial became.

The Simpson trial is still a touchstone for a range of socio-political and legal issues, including celebrity, power, race, money, domestic violence, and entertainment. It has also stood as a symbol for the hazards of televising criminal trials.

The fully televised trial captivated audiences. It made bigger celebrities of all the “Dream Team” lawyers involved in the defense, the prosecutors, police, and some witnesses, as well as many of the reporters covering the spectacle. It generated books and movies and even gave the public a first glimpse of both DNA scientific evidence and the Kardashians.

As much as the concept of the “trial of the century” is temporal, it is also geographic. In an era before cable television and digital streaming, trials really were a local spectacle. Nothing illustrates that better than the courtroom scene in “To Kill a Mockingbird,” where the courtroom was packed with community observers. Here in Syracuse, we have had some high-profile, perhaps even potentially sensationalistic trials over the years. The 2009 trial of Stacey Castor, the anti-freeze “Black Widow” convicted of poisoning her husband, was videotaped for later broadcast. The 2015 murder trial of Robert Neulander, in another era, might have achieved that kind of tabloid-type exposure seen with some recent trials — Casey Anthony in Florida and Johnny Depp v. Amber Heard.

Thirty years on, the legal importance of the O.J. Simpson case seems somewhat irrelevant. The trial yielded its pop culture moments, including catchphrases that live on today — “If it doesn’t fit, you must acquit.” As a primer on legal concepts and the importance of how Americans perform our justice in public, the trial served an important purpose. But it became an out-of-control spectacle from the beginning that blurred the lines between justice and entertainment.

Today, there is no doubt the public would benefit from having a seat in the New York City or federal courtrooms where Trump is being tried. Likewise, the public would also benefit if the United States SupremeCourt televised its oral arguments.

In the post-COVID-19 world, the U.S. Supreme Court now live-streams the audio of oral arguments, a tremendous step forward for legal observers, reporters, and cable news outlets.

But these New York state and federal courtrooms where Trump is being tried will remain off limits to televised coverage, ostensibly to maintain the decorum of the court, to ensure certain elements of privacy and to preserve certain Sixth Amendment rights for a fair trial.

The technology has evolved to the point where the cameras would not be a distraction for those in the courtroom, especially jurors, though the lawyers certainly might be. But once a jury is selected, judges can clamp down the courtroom and try to make sure jurors are only weighing the evidence that is legally admitted. Judges have tremendous power to rein in misbehavior, especially when it is the lawyers who are misbehaving.

But the power to hold someone, particularly a misbehaving lawyer or even an obstreperous defendant, in contempt of court requires some ability to enforce rules. A judge cannot enforce rules with a party who does not believe the rules apply to him. It would be interesting to see how that would play out on TV.

More than 20 years ago, comedian Jon Stewart facetiously coined the phrase, “The Trial of the Century of the Week,” which could easily be applied to Trump’s legal disputes across jurisdictions. Of course, they are a far cry from the televised spectacle of the O.J. Simpson case.

Unlike the Simpson case, nobody in any of the Trump legal dramas was murdered. Even today, Nicole Brown Simpson and Ron Goldman, who were brutally stabbed to death, seem like minor characters or a footnote in a larger story. But with the multitude of Trump cases, the breathless newscasters cry that democracy weighs in the balance of justice. The public ought to be able to watch that.

Professor Roy Gutterman L’00

Director, Tully Center for Free Speech
Professor, S.I. Newhouse School of Public Communication
Professor of Law, College of Law (by courtesy appointment)

Betty and Michael D. Wohl Veterans Legal Clinic Statement on Johnson v. Grants Pass SCOTUS Case

Syracuse University College of Law’s Betty and Michael D. Wohl Veterans Legal Clinic (VLC) is proud to join 43 other organizations, including the National Coalition for Homeless Veterans and the UCLA Veterans Clinic, by submitting an Amicus Brief to the Supreme Court in the case of Johnson v. Grants Pass.  The Amicus Brief reinforces the duty to ensure that the voices of our nation’s veterans are heard as part of the discourse surrounding this case.  There are over 35,000 unhoused veterans in our country, and fining or arresting unsheltered veterans unfairly complicates their pathway to stable housing.

As a recipient of the U.S. Department of Veterans Affairs (VA)’s new Legal Services for Homeless Veterans grant, the VLC has a new appreciation for the challenges facing homeless veterans.  We are keenly aware of how difficult it can be for veterans to navigate and secure VA benefits— especially for veterans who are homeless or at risk for homelessness. We’ve seen firsthand the inequities rendered in the lives of homeless veterans when complex legal battles and unjust rulings prevent them from receiving critical benefits. 

As a legal services and outreach organization dedicated to serving the veteran community, we have a particular interest in this case because of the importance of ensuring that criminal enforcement actions do not further complicate access to housing, medical care, and benefits.  This case offers the Supreme Court an ideal vehicle to guide the Ninth Circuit and local governments in how to best address homelessness and promote positive outcomes for our nation’s veterans, which has far-reaching implications, even for our work here in Syracuse.

Professor Elizabeth Kubala

Executive Director, Betty and Michael D. Wohl Veterans Legal Clinic

Professor Shubha Ghosh was Selected for the Japanese Patent Office’s Visiting Scholars Program

Crandall Melvin Professor of Law Shubha Ghosh, director of the Syracuse Intellectual Property Law Institute and Technology Commercialization Law Program, has been selected for the Visiting Scholar Program sponsored by the Institute for Intellectual Property, the research arm of the Japanese Patent Office in Tokyo. He will be conducting research on university technology commercialization in Japanese universities under Japan’s patent laws.

This is Professor Ghosh’s second research project for the Institute for Intellectual Property, having produced the report “Design Protection Law and Policy: A Comparative Perspective Japan and US” in Winter 2017-2018.