• Claire Taylor and Michael Tozzi

Legal News Round Up: January 2022

Trigger Warning: This article contains discussions of sexual assault allegations


2022 started with multiple high profile legal cases: from the United States Supreme Court’s decision to release documents that former President Donald Trump fought to withhold from the House of Representatives to sexual assault allegations against the United Kingdom's Prince Andrew. Legal issues also arose within the context of Russia’s tensions with Ukraine over The North Atlantic Treaty Organisation security alliance. The pandemic also continues to influence the legal world with tennis champion Novak Djokovic’s vaccine refusal being deemed grounds for deportation from Australia and Spain becoming the first country to compensate doctors for lack of personal protective equipment (PPE) when the Coronavirus pandemic started in 2020. Here are the legal news highlights of January 2022.


Donald Trump Denied Protection of White House Documents from Capitol Riot in Supreme Court Ruling


Former US President Donald Trump’s request to block the release of 700 White House records to the House of Representatives’ Select Committee investigating the Capitol riot was rejected by the Supreme Court more than a year after the incident on 20 January 2022. The Supreme Court’s decision cannot be appealed. The records which the National Archives will need to hand over to the Select Committee include: call logs, daily presidential diaries and memos from the former President’s top aides. Trump had tried to block these from surfacing through claims of executive privilege.


While a federal appeals court also previously rejected Trump’s request in December 2021, the Supreme Court’s decision cited a 1977 decision in a dispute between former US President Richard Nixon and the National Archives. The 1977 Supreme Court case ruled that the sitting President was the best authority to decide whether protection from the National Archives should be applied. In this case, sitting US President Joe Biden, therefore, has more authority than Donald Trump to decide the outcome of the record release. Biden declined to waive executive privilege over the records.


On the same day of the Supreme Court ruling, the Congressional Committee also subpoenaed Nicholas Fuentes and Patrick Casey who allegedly received thousands of dollars in funds potentially connected to the Capitol riot. As both men were on Capitol grounds on 6 January, the committee’s actions demonstrate the investigative direction intended to understand the catalyst for the events which left five people dead. This includes evaluating the former President’s involvement, finding sources of funding for the rallies that happened hours before the riot and deciphering how thousands of people travelled to the District of Columbia for the rallies.


Novak Djokovic’s Visa Cancellation Highlights Larger Deportation Policies in Australia


Following Australian Immigration Minister’s decision to cancel world famous tennis player Novak Djokovic's visa, critics claim that this case demonstrates a larger web of visa cancellation and political deportation policies. This legal action has barred Djokovic from entering the country for three years. The Immigration Minister cited Section 133C(3) of Australia’s Migration Act, passed in 2014, to back his decision. He argued that Novak Djokovic’s views toward COVID-19 and refusal to take the COVID-19 vaccine could ignite civil unrest. It is unlikely the deportation order will be overturned.


If Djokovic’s actions are viewed as within the legal realm of freedom of speech and thought, the Migration Act is an example of a law that can damage citizens whose views fail to align with the government’s. In this, Djokovic’s case uniquely balances the equation of freedom of speech versus public safety measures.


A pivotal dimension of this case is how Djokovic’s visa cancellation occurred at immigration clearance in a Melbourne airport. In such situations where a visa is under review, one is only given 10 minutes to respond to a cancellation. This quick procedure denies time for the victim to access legal support which, in turn, can lead to detention or forcible return to harmful situations. While Djokovic’s celebrity status enables him to access strong legal support, this fast-paced setting has been criticised repeatedly because the effects of a quick decision can drastically change lives as people are barred from re-entry to the country.


The Visa Cancellations Working Group, the Asylum Seeker Resource Centre and the Refugee Advice & Casework Centre have repeatedly called for an inquiry into what Djokovic’s case suggests about quick and rarely reversible deportations in Australia.


Spanish Doctors’ Union Wins Lawsuit Asking For Compensation for Lack of PPE


A lawsuit filed by the Doctors’ Union of Valencia CESM-CV, asking for compensation for doctors who did not have access to personal protective equipment during the initial outbreak of Covid-19 in 2020, made history as the first case of its kind to be won in Spain.


A court in Alicante ruled on 11 January that the regional government of Valencia must compensate 153 doctors up to GBP 41,000 each for having to work without PPE during the first three months of the pandemic. The judge's decision was based on how a lack of PPE resulted in direct exposure to the virus. This consequently posed a serious health threat to the well-being of Spanish doctors.


The compensation sums vary depending on how each doctor was affected by the virus; doctors who were forced to work without proper protection but did not get infected or who were forced to isolate will receive €5,000 (approximately GBP 4,200). The compensation increases from this to €15,000 (around GBP 12,600) for doctors who had to isolate, then to €35,000 (GBP 29,300) for those infected but who did not need hospital care, and to €49,000 (GBP 41,000) for doctors who required hospitalisation.


Nevertheless, the General Board of Doctors reminded the public after the judge's decision that this comes after 121 doctors in Spain died from COVID-19.


US Civil Suit Over Sexual Assault Allegations Against Prince Andrew Goes Ahead and Leads to Loss of Titles


Prince Andrew lost multiple titles this month after being sued in a civil case in the United States by Virginia Giuffre. Giuffre claims that Prince Andrew abused her in 2001 on three occasions at homes owned by Ghislaine Maxwell. 150 veterans from the Royal Navy, Royal Air Force and Army signed a letter that asked the Queen to strip Prince Andrew of both his ranks and titles in the British Armed Forces. This was in response to the US Court ruling that civil action could go ahead on 13 January after Prince Andrew attempted to get the case dismissed. As a result, Prince Andrew lost military titles such as Colonel of the Grenadier Guards and various overseas honorary titles.


Giuffre filed the case in New York in August 2021 using the state's Child Victims Act. This Act enables childhood sexual abuse survivors to file a case that would otherwise have been barred because of the length of time that has passed since the alleged incidents of abuse.


This court action occurs less than a month after the United States v. Ghislaine Maxwell verdict where Maxwell was found guilty on five out of six charges including sex trafficking of a minor and two perjury counts. Because of these charges, she faces up to 65 years in prison. Guiffre's defence has pointed to how Prince Andrew travelled on Epstein’s private plane, highlighting a web of sexual abuse experienced by victims of Maxwell, Epstein and Prince Andrew.


Lawyers have also doubted the strength of Prince Andrew’s defence. In 2019, he denied ever meeting Virginia Giuffre in a BBC interview and claimed he visited a Pizza Express on the day Guiffre alleged the sexual abuse occurred. According to Guiffre’s defence team, the court papers do not include these previous claims. Prince Andrew’s intense public denial of all allegations while his titles have been stripped by the Royal Family prompt questions into how the Royal’s legal team will argue his innocence in this case.


Russia-Ukrainian Conflict Sparks Debate on International and Humanitarian Law


Within the last week of January, over 100,000 soldiers were deployed by Russia to the Russia-Ukraine border. At a press conference on 25 January, US President Joe Biden warned that this number of soldiers could lead to the largest invasion since World War Two. Previously, Russia cited the North Atlantic Treaty Organization (NATO) as a security threat and demanded legal guarantees that new members of the security alliance near Russia, such as Ukraine, would not be allowed to join the alliance. US Secretary of State Anthony Blinken responded on 27 January 27th to the situation by stating in a document to Russia that the United States would not block Ukraine from joining NATO. The French President has also drawn attention to the 2015 Minsk agreements where Russia, Ukraine, France and Germany agreed to an indefinite ceasefire.


According to The Hill, Article 2(4) of the United Nations Charter prohibits aggressive war, which forbids Russia from invading Ukraine. In turn, other nations such as the United States could intervene to prevent such a war. According to Professor of Law Antony J. Colangelo, to do so, nations must articulate the precise reasons for intervention and proceed in full compliance with humanitarian law.


Amnesty International reported on 28 January, within the context of hostility on the Ukrainian border, on Russia’s historical dismissal for international humanitarian law. The organisation cited Russia’s previous military interventions such as Syria in 2015. Thus, this conflict draws into focus debate in international law, in particular around NATO and Article 5.


By Claire Taylor


NATO Explained: Why is Article 5 So Contentious?


Russia’s recent saber-rattling and troop buildup around the partially occupied state of Ukraine has left Ukraine in the crosshairs of two hegemonic power blocs vying for regional influence. Ukraine, a former Warsaw Pact state, has sought to join NATO, which has been perceived as an affront by Vladimir Putin, who views Ukraine as rightfully part of Russian territory due to their common cultural history and former ties as members of the Soviet Union.


NATO came into effect as the result of the North Atlantic Treaty signed in Washington DC in 1949. The organisation operates under a premise of collective security; as established by Article 5 of the Treaty:


“The Parties agree that an armed attack against one or more of them in Europe or North America shall be considered an attack against them all and consequently they agree that, if such an armed attack occurs, each of them, in exercise of the right of individual or collective self-defence recognised by Article 51 of the Charter of the United Nations, will assist the Party or Parties so attacked by taking forthwith, individually and in concert with the other Parties, such action as it deems necessary, including the use of armed force, to restore and maintain the security of the North Atlantic area@.


While NATO states have cooperated on a number of security and humanitarian missions throughout its history, Article 5 has only been invoked once to combat Al Qaeda and Taliban forces in Afghanistan following the September 11 attacks of 2001. However, the parameters of a nation’s participation in the alliance’s operations can be constrained by domestic politics.


NATO’s membership has expanded over time, from an initial 12members to a present day total 30 after North Macedonia joined in 2020. However, the Russian Government’s position coalesces around the idea that any expansion of NATO constitutes “encroachment” upon Russia’s territory, despite the fact that Ukraine is a separate country. Secretary Blinken’s recent assertion that Ukraine would be free to join NATO was predicated upon the understanding that as a sovereign state, Ukraine and other members of the Alliance are the only actors who can determine whether Ukraine can become a part of NATO. While this arrangement constitutes a basic premise of international law, Vladimir Putin’s hegemonic ambitions are no secret, and he is often quoted as saying that the collapse of the Soviet Union was “the greatest geopolitical catastrophe of the century”. Because of Article 5, Ukraine’s hypothetical admittance to NATO would comprise the most clearly articulated obstacle to Putin’s goals of restoring Russian hegemony to the proportions it held prior to 1991.


Defamation Litigation Against Trump Attorneys Continues


Dominion Voting Systems Corporation has recently stated that there is "no realistic possibility" for the company to reach a settlement with disgraced former Trump attorneys Rudy Giuliani and Sidney Powell amid an ongoing defamation lawsuit. Following the former President’s loss in the United States 2020 election, Giuliani and Powell promulgated a series of conspiracy theories in which they alleged without evidence that voting machine manufacturers conspired with foreign governments to digitally switch ballots from Trump to Biden. A Reuters report quotes a court filing in which Dominion representatives said that:


"Given the devastating harm to Plaintiffs, the lack of remorse shown by Defendants, and the fact that many of them continue to double down on their lies, Plaintiffs do not believe any realistic possibility of settlement exists".


The case is currently expected to go to trial.


Recently, a Delaware judge denied attempts by Fox News to dismiss a Dominion lawsuit levied against several of their presenters such as Jeanine Pirro and Tucker Carlson. Together with a competitor company, Smartmatic, Dominion is currently seeking damages from 11 individuals accused of the type of defamatory speech which is believed to have contributed to the environment of misinformation which led to the 6 January mob attack on the United States Capitol.


In addition to these lawsuits, Giuliani and Powell have been subpoenaed by the select committee of the House of Representatives currently investigating communications between figures close to Trump prior to and during the Capitol riot. An interim committee report on the events of 6 January 2021 is expected to be released sometime this summer. While the US Justice Department has prosecuted hundreds of individual participants in the attack, public political figures accused of instigating the insurrection – including former President Trump – have yet to face criminal prosecution.


By Michael Tozzi