A Little Judicial Schadenfreude

One of my favorite things in court filings are little turns of the knife - especially when it has to do with Caesar himself. Allow me to explain.

If you know me at all, you know I take pleasure in obscure, justicey things. Whether it’s a bench slap from a judge against Trump in his role as either a defendant, a plaintiff, or as president - little things like bringing up his own arguments against him tend to bring me immense joy. After all, in these dark time, we have to microdose happiness.

There are many examples of this. Last week, we saw Jim Comey argue that he’s been selectively prosecuted as evidenced by the fact that others in similar circumstances had not been indicted. One example they used was Jeff Sessions and his famous plea to Congress that while he had “been a surrogate for the Trump campaign at a time or two,” he did not have “communications with the Russians.” I imagine that any mention of Russia causes Trump’s cankles to swell another inch like an inverse version of the Grinch’s heart growing three sizes.

Or when Comey used the example of Steve Mnuchin - who lied under oath about having used an autopen when he worked at a bank. Given Trump’s parochial jabs at Biden’s use of the autopen, that makes me a little bit giddy. Comey also listed Scott Pruitt’s lie to congress about his use of a personal email account. Given Trump’s relentless bashing of Hillary and his indictment of John Bolton for doing the exact same thing, those kinds of little nudges are fun to read.

Representative LaMonica McIver mentioned the fact that Trump pardoned January 6th rioters who beat cops in her motion to dismiss charges against her alleging she assaulted federal agents (which she did not.) I imagine Kat Abughazelah will make the same argument over charges that she somehow impeded officers. Or Milwaukee Judge Dugan citing Trump’s immunity case to illustrate that she, too, enjoys immunity (a motion she lost, but an issue that could come up later at trial beginning December 15th.)

Today’s little bit of legal schadenfreude comes from a new motion to dismiss the charges against Jim Comey, arguing that he can’t be charged for statements that are literally true. That precedent comes from a case called Bronston v United States.

Before we get into who Bronston was and what his case entailed, I want to mention the obsession that MAGA and the Broligarchy have with The Roman Empire. You’ll understand why in a minute.

Steve Bannon - for example - has the bust of Julius Caesar on his desk when he records his podcast. MAGA essayist and Trump supporter Michael Anton wrote an essay decrying diversity using the pen name Publius Decius Mus - after the ancient Roman Consul - defending Trump’s use of “America First.”

Elon Musk depicts himself as an AI generated gladiator, and posted on twitter “anyone feeling late stage empire vibes?” JD Vance says the US is in a late republican period like Rome was when it transitioned to an empire. Curtis Yarvin compares the US to the Roman Empire all the time.

They all contend that Rome fell because of immigrants, diversity, and wokeness - a failure to keep their blood pure, and a loss of masculinity and the warrior ethos. All of which necessitates the rise of a Caesar, or an authoritarian one-man rule.

That brings us back to Jim Comey, and his Bronston literal truth motion. Samuel Bronston was a movie producer in the 1950s and 1960s who filed for bankruptcy. In bankruptcy court, he was being asked about Swiss bank accounts to determine whether he was hiding money. Bronston did have a personal Swiss bank account for five years, but had closed it, and his movie production company had a Swiss account for about six months that had also been closed.

Bronston was asked “Do you have a Swiss bank account,” to which he replied “No.” That was true because at the time of the question, his Swiss account had been closed. He was then asked if he ever had a Swiss bank account, to which he replied “The company had one for about six months.” Also, literally true. The prosecutors never followed up to ask if Bronston ever had a personal Swiss bank account, but he was charged with and convicted of perjury nonetheless. The appeals court upheld the conviction, but the Supreme Court overturned it.

Justice Berger famously wrote in that opinion: “Precise questioning is imperative as a predicate for the offense of perjury,” ruling that the burden is on the questioner to be specific.

In Comey’s case, Comey testified in 2020 that he stood by his 2017 testimony, and even if his 2017 testimony was bullshit, him saying he stands by it is literally true. Therefore, his lawyers argue that because Ted Cruz’ questions were ambiguous, and because Comey literally stands by his 2017 testimony, he can’t be charged with making a false statement. (Perjury and false statements fall under two different statutes, but the Fourth Circuit Court of Appeals held that the Bronston literal truth defense includes false statement charges under Title 18 USC §1001.)

The part of all this that gave me a good laugh?

The movie that flopped and caused Bronston to file for bankruptcy was The Fall of the Roman Empire.

So here we are, with Trump ordering the prosecution of his political enemies - a very authoritarian thing to do - on the precipice of those charges possibly being brought down by a case about a guy who went bankrupt over a film about the fall of the Roman empire. It’s kind of poetic.

Sic semper tyrannis, motherfucker.

~AG

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