Today's Scorecard For New York's Kangaroo Legal System

May 30, 2024/ Francis Menton @ Manhattan Contrarian  

(Editor's Note: I can't properly reproduce the picture in this article, so to see it follow the link to Manhattan Contrarian. RK)

The kangaroos’ request shown above, as reported yesterday on X by the Babylon Bee, may not be completely justified with respect to the U.S. federal justice system. It remains to be seen how the prosecutions of our ex-President play out in that arena. However, the kangaroos’ request is 100% justified with respect to the justice system of the State of New York. Here in New York, the recent actions of our prosecutors and legal system make “kangaroo courts” look wise and sensible by comparison.

Somewhere in the mid-2010s, New York prosecutors and regulators decided that all previous norms and ethical restraints had been abolished, and it was now OK to use all resources of their offices to bring down disfavored political targets by any and every means they could think of. As the most notable example, they decided that it was now completely OK even to seek office on the specific promise to destroy one man, Donald Trump, even if they did not know at the time what legal wrong he may have committed. Both our current Attorney General, Letitia James, and our Manhattan District Attorney, Alvin Bragg, campaigned on such specific promises to “get Trump.” Previously, such conduct would have been thought the most grievous ethical violation that a prospective prosecutor could possibly commit. Today, the organized New York bar — once the most prestigious in the country — to its shame, declines to speak out on the issue at all.

Yet all is not necessarily rosy for our sub-kangaroo-level abusers of the legal process. Granted, as you have probably already seen, ex-President Trump was convicted today by a Manhattan jury on some 34 counts of “falsifying business records,” or some such made-up crime that nobody but he would ever be prosecuted for at all on similar facts. Score one for the sub-kangaroos. But on the same day, the sub-kangaroos of New York also lost one in the U.S. Supreme Court. Today’s Supreme Court decision is an important one, and a bad omen for the whole program of progressive prosecution of political enemies, not just in New York. The Court’s decision even gives a glimmer of hope that there may be at least some accountability for the abusers of the legal process.

The Supreme Court decision in question is National Rifle Association of America v. Vullo, issued today. The case arises out of the efforts of a New York regulator, Maria Vullo, then Superintendent of the New York Department of Financial Services, to destroy the NRA by threatening regulatory harassment against banks and insurance companies under her regulatory jurisdiction unless they agreed to stop doing business with the NRA. Vullo’s conduct, as set forth in the Supreme Court’s decision, was quite shockingly thuggish, at a level that you would think would cause even the crazed leftists in New York State government to slow down and think twice. But they operate in a bubble where no voices of sensible outsiders are able to penetrate.

Perhaps the most significant thing about the Supreme Court’s Vullo decision is that it is unanimous. All three “liberals” joined, and the opinion is even written by perhaps the most consistently lockstep of the lockstep leftists on the Court, Sonia Sotomayor. This one was too much even for her.

In 2017 to 2019, Vullo carried out a program to bully and harass banks and insurance companies to stop dealing with the NRA. The NRA sued Vullo and the Department of Financial Services in the Northern District of New York, alleging violation of its First Amendment rights, asserting that Vullo’s program was intended to restrict and shut down its constitutionally protected advocacy. Defendants moved to dismiss, and the District Court declined to grant the motion. However, the defendants appealed that to the Second Circuit Court of Appeals, which allowed the appeal, and reversed, thus dismissing the case. The Supreme Court now revives the claim against Vullo and sends it back to the District Court for trial.

The statement of facts in Justice Sotomayor’s opinion is dry, but still gives a remarkable sense of just how much Ms. Vullo thought she could get away with in going after a political enemy under the guise of her jurisdiction of “regulating banks and insurance companies.” Here are some allegation of Vullo’s conduct with respect to Lloyd’s of London and Chubb, insurance companies that were working with the NRA to underwrite gun-liability insurance policies:

Vullo brought a variety of insurance-law violations to the Lloyd’s executives’ attention during a private meeting in February 2018. The violations included technical infractions that allegedly plagued the affinity insurance market in New York and that were unrelated to any NRA business. . . . Vullo allegedly said she would be “less interested in pursuing the[se] infractions . . . so long as Lloyd’s ceased providing insurance to gun groups, especially the NRA.” . . . Vullo also told the Lloyd’s executives she would “focus” her enforcement actions “solely” on the syndicates with ties to the NRA, “and ignore other syndi- cates writing similar policies.” . . . The message was therefore loud and clear: Lloyd’s “could avoid liability for [unrelated] infractions” if it “aided DFS’s campaign against gun groups” by terminating its business relationships with them.

In 2018, Vullo issued so-called “guidance letters” to the entire insurance industry, advising all companies to avoid “reputational risk” by ceasing to do business with the NRA:

Just like in her meeting with the Lloyd’s executives, here too Vullo singled out the NRA and other gun-promotion organizations as the targets of her call to action. This time, the Guidance Letters reminded DFS-regulated entities of their obligation to consider their “reputational risks,” and then tied that obligation to an encouragement for “prompt actio[n] to manag[e] these risks.” . . . Evocative of Vullo’s private conversation with the Lloyd’s executives a few weeks earlier, the press release revealed how to manage the risks by encouraging DFS-regulated entities to “‘discontinu[e] their arrangements with the NRA.’”

This case now goes back to the trial court — a federal court in upstate New York, with a jury pool drawn largely from rural areas. (Obviously the NRA is smart enough to pick a potentially-favorable forum.). Ms. Vullo is a defendant personally. She could get hit with some serious liability.

Meanwhile the case against Trump has probably zero chance of surviving all appeals. However, that will take a long time to play out. Trump’s first appeal will go to something called the Appellate Division, First Department, an appellate court also sitting in Manhattan. From there, the next appeal will be to the New York Court of Appeals, and then (if the case is still alive) to the U.S. Supreme Court. Yes, there is a real issue for the Supreme Court, should the case get that far, which is whether the New York DA has jurisdiction to prosecute a federal election law crime, which underlies his theory that Trump’s bookkeeping violations can be raised to a felony.

Anyway, if the Supreme Court was disgusted enough by Vullo’s abuse of her powers to reverse in the NRA case, it would be quite likely that they would reverse in Trump’s case. Indeed, even the New York Court of Appeals is likely to be sufficiently outside the bubble to reverse. The Appellate Division I’m not so sure.