Category Archives: Donald Trump

New York v. Trump — New developments

By tmess2 | Published June 9, 2024

At the end of the week, there was a concerning development related to Trump’s conviction.  There was a post to the New York Court’s Facebook page which alleged that a juror had disclosed information about deliberations to a relative.

Of course, the Trump team seized on this news to claim that the verdict needs to be set aside.  But, despite Trump’s tendency to act prematurely, the Trump team is several steps away from getting the verdict tossed.

The initial hurdle to overcome is identifying the source of this post.  As even an elementary school student knows, anybody can make up a user name and post to a website.  And that post can say anything.  All that we have at the present time is some unknown person is claiming to be a relative of an unidentified juror and asserts that the juror disclosed information from the deliberations to that person.  While, in theory, it is possible that the judge will allow the defense to question each of the jurors, it is equally, if not more, likely that the judge will make the defense prove that the post came from a real person who actually knows one of the jurors and is willing to swear that his post is true.  If the defense can do that, the court would almost certainly allow either the prosecution or defense to call that juror to testify to corroborate or dispute that posters testimony. Continue Reading...

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Closing Argument in People vs. Trump

By tmess2 | Published May 27, 2024

On Tuesday morning, we will hear closing argument in People (of New York) vs. Trump.  There is a good chance that closing argument will spill over into Tuesday afternoon.  Personally, I think this is a mistake, As anybody who has sat through a long sermon, or a college lecture, or a State of the Union speech knows, it is hard to keep the audience’s attention even, when like a jury, they are supposed to be paying close attention.  But us lawyers like to hear ourselves talk and sometimes we dwell on what we find fascinating rather than what is really important in a case.

The basic structure of closing argument (whether in civil cases or in criminal cases) is that the party with the burden of proof (usually the plaintiff in a civil case and always the prosecution in a criminal case) goes first.  The other side (here Trump) goes next, and the party with the burden of proof then gets a rebuttal argument.  The total time allotted to both sides is the same, and the party with the split argument has to choose to split its time between the two (although in some places there is a requirement that the first part of the argument has to be longer than the final argument.  In some places, like where I practice, the court reads the instructions before closing argument.  In my opinion, this practice makes closing argument easier as the jury has already heard what they are supposed to be determining.  But, in New York, the court reads the instructions to the jury after the closing argument.  However, the attorneys know before they begin closing argument what those instructions will be.

The general rule for closing argument is to start and end with a strong statement about what the case is about (and why that dictates a verdict in favor of your side).  On paper, the defense has the easier job — they only need to win on one element of an offense while the prosecution has to win on every element of the offense.  In practice, unless the prosecutors are idiots, there is strong evidence supporting the charges, and only one or two elements are really in dispute (allowing the prosecution to quickly note that the other elements are not in dispute). Continue Reading...

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The Supreme Court and January 6

By tmess2 | Published April 14, 2024

Monday marks the start of the two-week “April” argument session at the Supreme Court — traditionally, the last argument session of the term.  After next week, the Supreme Court will spend the next two months finishing up the opinions.  (As of today, we have 14 opinions in the 51 cases heard in the first six argument sessions of the term.  As we get later in the term and have more opinions issued, there will be posts about which justice might have each case.  For now, there are not enough opinions issued to support any attempt to read the tea leaves.)

This session features two crucial cases related to January 6.  The first, being heard on April 16 involves the legal reach of the obstruction charge which has been filed against a significant number of defendants, including prisoner in the dock Donald J. Trump.  The second, being heard on April 25 (a special semi-expedited Thursday argument) involves whether Donald J. Trump has any immunity to the pending charges.

The April 16 argument comes in the case of Fischer vs. United States.  This appeal arises in the context of a motion to dismiss filed Mr. Fischer.  The essence of a motion to dismiss is a pre-trial claim that the conduct alleged by the government is not conduct covered by the offense charged.  The trial court agreed with Mr. Fischer, but the appellate court reversed. Continue Reading...

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Trump vs. United States — The Immunity Argument

By tmess2 | Published March 3, 2024

Earlier this week, the United States Supreme Court announced that it would hear arguments in the case of Trump v. United States, regarding Trump’s claim that he is immune from prosecution for his role in the January 6 insurrection because his actions that day were official actions.  They also announced that arguments will be held this term — on April 22.  There is a lot to unpack in this order.

Let’s start with the procedural posture of this case.  Late last year, the trial judge (sitting in the federal district court for D.C.) denied Trump’s motion to dismiss the indictment based, in part, on his claim of absolute immunity for actions taken while President.  He then filed an “interlocutory” appeal of that ruling.  (In most cases, parties can only appeal when a case is over.  There are a limited number of circumstances in which a party can immediately appeal from a pre-trial ruling,)   The appellate court (the D.C. Circuit) expedited the appeal (even more so than is normal for interlocutory appeals).  Despite the D.C. Circuit expediting the case, the special prosecutor, In December, asked that the U.S. Supreme Court take the case without waiting for a ruling from the appellate court (something that is rarely done).    But, on December 22, the U.S. Supreme Court denied that request.

On February 6, the D.C. Circuit issued its opinion affirming the trial court.  Normally, there would be a brief period of time before the “mandate” (the formal order implementing the opinion and restoring the authority to the trial court to proceed).  But the panel that issued the opinion set a quick deadline of February 12 for Trump to get a stay of the mandate from either the full D.C. Circuit or the U.S. Supreme Court.  As such, on February 12, Trump filed for a stay with the U.S. Supreme Court.  Now, in most cases, once the stay were granted, the case would proceed on a normal schedule.  On a normal schedule, Trump would then ask for rehearing from the full D.C. Circuit.  If and when the D.C. Circuit declined to rehear the case (the ruling in almost all cases), Trump would then have ninety days (plus any extensions) to ask for certioarari (the formal order taking the appeal) from the Supreme Court.  In some cases, however, when the U.S. Supreme Court issues a stay, it will also treat the stay application as a petition for certiorari.  The special prosecutor, in his response to the stay application, while arguing for the U.S. Supreme Court to deny the stay, made the alternative argument that, if the U.S. Supreme Court did grant the stay, it should exercise that power to treat the stay application as a petition for certiorari and expedite the case. Continue Reading...

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2024 Presidential Primaries — South Carolina Republicans and Michigan

By tmess2 | Published February 24, 2024

As we head into the last week of February, we are also reaching the end of the authorized early primaries.  Under the respective rules of the two parties, there is a preliminary window in which only some states were authorized to hold early primaries/caucuses.  For the Republicans, the “regular” primary window opens on March 1.  For Democrats, the “regular” primary window opens on the first Tuesday in March (March 5).

For this last week, we have three primaries on the book.  First up, today, is the South Carolina Republican primary.  South Carolina law allows the parties to choose the date of their own primary, and the two parties have tended to choose different dates (but usually a Saturday).  And so we had the Democratic primary several weeks back which was won by President Joe Biden.  Now, it’s the Republican primary.  While there are seven candidates on the ballot, two of them are not known nationally, and three of the nationally-known candidates have dropped out.  In other words, while five of the candidates may get some votes, there are only two with any chance of winning delegates — former South Carolina Governor Nikki Haley and a candidate who ineligible to be president, Donald Trump.  South Carolina Republicans use a “winner-take-most” system for allocating delegates.  In other words, each congressional district has three delegates and whomever wins that district gets all three delegates.  Likewise, there are twenty-nine at-large delegates, and whomever wins the state gets all twenty-nine delegates.  Especially with only two serious candidates in the races, whomever wins statewide will have won at least one congressional district (and probably will have won more than one).  Thus, the winner of the primary is guaranteed to take at least 32 of the 50 delegates (which is why this type of system is referred to as winner-take-most).  Despite the fact that Nikki Haley used to be the governor of South Carolina, the traditional Republican Party in South Carolina is dead and has been replaced by the Trump Party.  While anybody who did not vote in the Democratic Primary could theoretically vote in the Republican Primary, there probably will not be enough independents and Democrats voting to save the Republican Party from itself.  Polls show Donald Trump leading by a wide enough margin that he should win all fifty delegates, and the only question is whether Nikki Haley can make it close enough to steal a district or two.

On Tuesday, we will primaries for both parties in Michigan.  President Joe Biden should win the state easily.  Neither Representative Dean Phillips nor Marianne Williamson is a serious contender to reach the fifteen percent to win delegates.  The real contender to take delegates away from President Biden is “uncommitted.”  Representative Rashida Tlaib has been encouraging voters to vote for uncommitted in protest of President Biden’s middle of the road stance on Israel’s response to Hamas’s invasion of Israel.  While the pro-Palestinian progressive wing of the Democratic Party has a problem with Israel trying to remove Hamas from the Gaza Strip, if President Biden were to do what they want him to do, it would guarantee Donald Trump’s victory in November.  If uncommitted stays below 15% (state-wide or in any individual district), President Biden will win all of the delegates (state-wide or in that district).  The largest districts have seven delegates; so it is unlikely that uncommitted will get more than one delegate in any individual district.  The one exception to that might be Representative Tlaib’s district.  And the issue in that district will be whether uncommitted can get to the 21% necessary to win a second delegate.  If uncommitted does not win any delegates in that district, we could see a primary challenge to Representative Tlaib emerge.  State-wide, there are twenty-five at-large delegates and fifteen party-leader delegates.  As such, if uncommitted were to get to fifteen percent state-wide, uncommitted would get, at least, four at-large and two party-leader delegates.   But the expectation is that President Biden will win almost all of the 117 delegates at stake on Tuesday. Continue Reading...

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Trump Litigation News — Immunity and Ballot Access

By tmess2 | Published February 8, 2024

Following what is happening to Donald Trump in court is a little like a soap opera — a lot of little things happening all of the time that makes you wonder when it is time to write about the latest maneuvering.  This week, however, seems to be shoehorned around two very consequential events.

First, on Tuesday, we got the decision from the U.S. Court of Appeals for the D.C. Circuit on the appeal of the ruling denying Trump’s motion to dismiss the January 6 case.  The opinion was a per curiam opinion.  For those who are not lawyers, most opinions identify the author.  A per curiam opinion is on behalf of all of the judges who heard the case and does not identify a specific judge as the author.  There are a variety of reasons why courts opt to issue such opinions.  The reasons that most likely apples here is to emphasize that this opinion is the unanimous opinion of all of the judges.

The opinion is rather long (fifty-seven pages).  After initially determining that the trial court’s decision on Trump’s motion to dismiss charges could be appealed now (most decisions can’t be challenged until after the case goes to trial), the judges systematically demolish all of Trump’s claims on why a former president can’t be charged for criminal conduct committed while in office.  They also reject Trump’s attempt to change his position from 2021 and argue that the decision of 43 Senators to not remove Trump from office after his term ended barred criminal charges on double jeopardy grounds.  The most important part of the ruling was not on the merits.  Rather it was a procedural decision. Continue Reading...

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The Oral Argument in United States vs. Donald J. Trump (a/k/a The Insurrectionist)

By tmess2 | Published January 9, 2024

Today, at 9:30 a.m. Eastern Time, the United States Court of Appeals for the District of Columbia Circuit will hold oral arguments on Donald Trump’s appeal of the decision that he is not immune from criminal prosecution for the events of January 6.  Apparently, the accused intends to personally attend this argument.  (For the reasons discussed below, his attorneys are likely unhappy with the decision and Trump may throw a temper tantrum either during or after the argument.)  For the millions who are unable to make it to the federal courthouse, the D.C. Circuit will be livestreaming the audio of the argument.  And the recording will posted on the court’s website by the close of business today.

I am not going to spend time on the merits of the case because the merits are really one-sided.  The trial judge in this case is respected by her peers and her order thoroughly demonstrates why Trump’s claim of immunity has no factual or legal merit.  It will be affirmed.  Instead, this post is intended to help readers understand what will be happening.

The first thing to understand is that oral argument is the last part of the case.  Even at the state level, it is expected that the judges will have read the written arguments (formally known as briefs of the party).  If the judges have the time, they may also have looked at the relevant portions of the trial court records to answer any factual questions that they may have about the proceeding.  They may also have looked at the key cases cited by the parties to understand what those cases actually say (instead of how the attorneys have tried to spin them).  In short, the judges have almost certainly formed an opinion about the issues in the case, and oral argument is a last chance for the parties to correct any misimpressions that they judges may have. Continue Reading...

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The Trump Ballot Case and the Precedents of Nat Turner and John Brown

By tmess2 | Published January 7, 2024

On Friday, the United Staes Supreme Court decided to grant President Trump’s Petition for Certiorari in Trump vs. Anderson.  However, it took no action on the companion Petition for Certiorari filed by the Colorado Republican Party in Colorado State Republican Central Committee v. Anderson.  Before turning to the issues raised in this case, there are two things to note about the Supreme Court order granting review and the petitions filed.

First, in granting Trump’s petition, the Supreme Court implicitly recognized the necessity to resolve this issue quickly.  The briefs of Trump and his enablers in the Republican Party (and related organizations) are due on January 18, less than two weeks after the order granting review (as opposed to the usual 45 days).  The briefs of Trump’s challengers and the Colorado election official who are in the middle of this case are due thirteen days later on January 31 (along with any outside brief from individuals who want to support Democracy) with any reply briefs due five days later on February 5.  This contrast to the normal deadlines of 45 days for petitioner’s brief with respondent’s brief due 30 days later and the reply brief an additional 35 days later. Additionally, the case will be argued on February 8 which is a special setting in the middle of what would otherwise have been the Supreme Court’s winter break.

Second, the Supreme Court did not rewrite Trump’s question presented.  Typically, the question prsented in a petition for certiorari is narrowly focused on one legal issue.  For example, did the lower court err in finding that the potential for the metabolizing of blood alcohol content is an automatic exigent circumstance permitting law enforcement officers to conduct a warrantless blood draw?  If there are multiple issues in a case, the petition will present multiple questions on which the Supreme Court can pick and choose which issues will be considered at the time that the petition is granted.  For example, the Colorado Republican Party presented three issues:  1) does Section 3 of the Fourteenth Amendment apply to the President; 2) is Section 3 self-executing; and 3) does disqualifying a candidate violate the First Amendment rights of political parties.  By contrast, the Trump Petition, after noting the ruling (that his actions and the office of President fell within the restrictions of Section) simply asks whether the Colorado Supreme Court erred by excluding him from the ballot.  In other words, unlike the usual question which identifies a specific legal error in the ruling, the Supreme Court appears to be allowing the consideration of any potential theory on why the Colorado Supreme Court erred. Continue Reading...

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Supreme Court Update

By tmess2 | Published December 17, 2023

Before departing for the holidays, the Supreme Court had a couple of “gifts” of merits review in a couple of high profile cases with the possibility of a third before New Year’s.

Starting at the top of the list is the dubious case brought by Mrs. Senator Josh Hawley.  (Normally, the fact that a relative of a politician is involved in a case would not be noteworthy but whne you put yourself out as a power couple and you file the case in a location which assures that it will be heard by a judge who donated to the relative’s campaign and the relative played a large role in getting that judge appointed to the bench, this clearly qualifies as a team effort for which both share the blame.)  In this case, plaintiffs are a group of doctors who claim that they have standing to challenge the FDA’s decisions on approving Mifepristone because at some point they may be forced to provide treatment for a patient who took Mifepristone and had complications.  These political doctors sought to both invalidate recent changes to the guidance that the FDA gives on Mifepristone and its original approval.  Having filed the case in a location that assured them that the case would be heard by a judge who would twist the law and the facts to rule in their favor, they succeeded at the trial court on both parts of their case.  The FDA and the drug manufacture appealed this rubber stamp decision to the Fifth Circuit.  Even the Fifth Circuit could not twist the law in a manner that would allow them to affirm the decision as it relates to the original approval of Mifepristone, but they did find flaws in the administrative process which allowed them to affirm the decision with regards to the more recent changes approving a broader use for Mifepristone.  Everybody then sought U.S. Supreme Court review.  Several months ago, the U.S. Supreme Court stayed the Fifth Circuit’s ruling.  This past week, the Supreme Court granted the review sought by the FDA and the drug manufacturer, but denied the review sought by the medical hacks.

While this Supreme Court having any case related to abortion is always a matter of concern, the decision to take the FDA’s appeal and reject the appeal by the medical hacks is the best result possible for the pro-choice community.  And, the main issue in the case is the FDA procedures for approving medications and expanding “on label” uses after initial approval.  As such, the impact of a ruling against the FDA in this case would have a major negative impact on pharmaceutical companies.  As such, it is possible that six of the justices might put the abortion aspects of this case to the side and simply focus on it as an administrative procedure case.   If not, there is always the November elections. Continue Reading...

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Candidate Trump — Felon Ballot Access Restrictions and the Fourteenth Amendment

By tmess2 | Published August 27, 2023

We are heading into uncharted waters.  A major political party has become a cult in thrall to a person who may not be eligible to run for president (or at least barred from the ballot in several states) who insists that he should be the nominee in 2024.  Add to that a martyr complex by the true believers who have taken over many state parties, and we are heading into potential chaos for the Fall of 2024.

Of course, one of the complexities is that the national election for president is when the electoral college meets and votes and sends those votes to Congress to be counted.  Up until that Wednesday in December, we have fifty-one elections for presidential electors and more elections for delegates to the nominating convention.  Each of the jurisdictions (states and territories) involved in these elections have different rules and procedures.

Having said that, there are several general things that are consistent from state to state.  First, for the general elections, the parties certify the name of their presidential and vice-presidential candidate in late August or early September.   Second, there is a state election authority which receives and processes the candidate paperwork for state and federal candidates.  For the most part, these officials rarely refuse candidate filings, but they are tasked with determining whether the filing to be on the ballot is complete and shows that the candidate is eligible to run under state law.  Third, decisions on whether a candidate qualifies to be on the ballot is subject to some form of judicial review.  But, assuming that the election authority finds that a candidate is eligible to run, the different states have different rules on who can challenge that determination.  In all, or almost every state, the opposing candidates have the right to bring such a case, but the rules as to who else has that right differs from state to state.  Fourth, if, for some reason, a party’s nominee has to be replaced on the ballot, it generally falls on the state party to name a replacement.  Fifth, for the presidential election, there is actually a ticket composed of the candidates for president, the vice-president, and the presidential electors.  It is the last two or three where the potential for chaos emerges. Continue Reading...

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