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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Supreme Court Update — Appropriations and Redistricting

By tmess2 | Published May 25, 2024

We are at that point of the Supreme Court terms when we are waiting for the other shoe to drop.  All the arguments and briefing for the term is done, and what is left is for the opinions to slowly drip out.  For now, the Supreme Court is only holding one opinion day per week.  That will be changing soon.

In May, we tend to get the older cases (October, November, and December) that have multiple opinions and newer cases (March and April) that were “easy” unanimous decisions.  As we get later into June, we will get the 5-4 decisions from February, March, and April, and the number of cases will pick up.

So far, in May, there have been three opinion days (with one more set for this Thursday).  On those opinion days, we have gotten, two, three, and three opinions.  With eight opinions down, we still have approximately thirty-five opinions (approximately because there are a few cases that could be consolidated) left to come over the next five weeks.  That number is why we are likely to get multiple opinion days per week in the latter part of June as we need nine to twelve opinion days. Continue Reading...

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2024 Primaries — Georgia, Idaho, Kentucky, and Oregon (and California Special Election)

By tmess2 | Published May 19, 2024

This week several states have primaries, but it is unlikely that many of them will be significant.  In addition, we have the runoff in California for Kevin McCarthy’s old seat.

Starting with the special election in California.  Under the top two system in California, the Republicans got both slots in the runoff.  So when the results are finally certified in June, the Republicans will go back up to 218 seats.  The only issue is which Republican gets the slot — McCarthy’s handpicked successor (Vince Fong) or County Sheriff Michael Boudreaux.  This is likely to be a low turnout election which means that anything could happen.  The same two candidates have made the general election in November which will have much higher turnout, but the winner on Tuesday will have a major advantage for the November election.

Georgia had to redraw districts to comply with the Voting Rights Act, but Republicans in the legislature solved that issue by simply redrawing the map so that the Democratic district was majority-minority and making the Republican district whiter (with the numbers flipped).  Thus, the end result in Georgia is likely to be the same.  For the most part, incumbents are likely to prevail, but some incumbents ended up with significantly altered districts.  Additionally, the Third District is an open seat.  Starting with the Third District, this rural district in western Georgia will almost certainly go Republican in November.  There are five candidates running.  The most likely outcome on Tuesday will be a runoff.  The top three candidates in fundraising are Mike Crane, Michael Dugan, and Brian Jack, and it is likely that two of the three will make the runoff.  The other race of interest is the Sixth District.  This race is the one most likely impacted by the redrawing of the lines.  Representative Lucy McBath currently represents the Seventh District.  That district was chopped up to avoid the Democrats gaining a seat in redistricting, and Representative McBath is now running in the Sixth District.  As best as I can tell, there is no overlap between the new Sixth and the old Seventh.  While Representative McBath will be favored in this race, there is a chance of an upset.  Unfortunately, Representative Marjorie Taylor Greene did not draw any primary opponents and thus is likely to be back for another term. Continue Reading...

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Convention news 100 days out

By Matt | Published May 12, 2024
  • Yesterday marked 100 days to the Democratic National Convention
  • Democrats are actively considering making parts of the convention virtual, or moving other parts to different venues or earlier times – all to minimize coverage of potential protests.
  • DNC leaders pushed back on comparisons to 1968
  • They really pushed back
  • Chicago and Milwaukee will be swapping officers to increase police presence at both conventions
  • More protest updates
  • Steven Spielberg is working on convention planning
  • And the GOP is unhappy that the Secret Service will not move the security lines

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2024 Primaries — Maryland, Nebraska, and West Virginia

By tmess2 | Published May 11, 2024

One of the features/bugs of American politics is that states get to pick the dates of their primary elections.  While there are reasons to want an early presidential primary, there are reasons wo want a later date for the primaries for other offices.  As a result, in the early part of the presidential primary process, you have a mix of states which have a unified (president and other races) primary and states which are having a separate presidential primary.  But those states which wait until May or June for their presidential primary are more likely to have a unified primary.

This week, we have unified primaries in three states.  (There are also runoffs in North Carolina, but most of the significant races will not have a runoff.)  As listed in the title, the three states with unified primaries this week are Maryland, Nebraska, and West Virginia.

Starting with Maryland, the national Republican leadership has struggled for several cycles in their efforts to get their preferred candidates to run.  However, in Maryland, they succeeded.  Larry Hogan, the former governor who was term limited in 2022, opted to run for the Senate.  As of May, Hogan’s personal popularity is making him a strong contender to take this Senate seat.  Part of the fall campaign message from the Democrats in Maryland will be that a vote for Hogan is a vote to let Ted Cruz, Rick Scott, and Mike Lee run the Senate.  Because the incumbent Democrat, Ben Cardin, is not running for reelection, the Democrats have a competitive primary.  The two major candidates are Angela Alsobrooks who is the County Executive from Prince George County (the D.C. suburbs) and Congressman David Trone.  Ms. Alsobrooks is the more progressive of the two candidates.  The issue for Democratic voters is do they vote for the candidate who will excite the base but who might have trouble winning swing voters (Alsobrooks) or the candidate who is more likely to compete for swing voters but will have trouble exciting the base (Trone). Continue Reading...

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UK Local Elections

By tmess2 | Published May 1, 2024

This week (Thursday, May 2) are the local elections in the UK.  While city councils (and the functional equivalent for areas outside of the cities) have some powers, the primacy of the UK parliament (especially in England) often leads the vote for council members to be a way to express disapproval of the current government.  While some share of that “protest” vote comes from some otherwise loyal supporters of the governing party who will return to the fold for the next general election, the results in the council vote is often seen as a referendum on the current government.

The vote this year is particularly significant.  In the U.K., the national parliament is elected for a term of up to five years.  While for a period of time, the U.K. flirted with having a fixed term similar to Congress, the “fixed term” law allowed for parliament to agree to an early election.  In practice, it was impossible for the opposition to vote against an early election although the opposition could, to a limited extent, get some input on the date of the election.  So the U.K. went back to the old law which allows the government to call an early election.  We are now nearing the end of the current parliament’s term.  The last election in the U.K. was in December 2019.  In theory, the government could wait until the term ends to call the next election (which would then fall at the end of January 2025), but that would have the election period run through the holidays which would cause havoc with some of the deadlines related to the election.  As such, the expectation is the government will schedule the parliamentary elections in the early fall.

Generally speaking, council terms in England are for four years.  City councils fall into three basic types.  Some councils elect the full council every four years.  Some councils elect half their membership every other year.  And some councils have a four-year cycle in which they elect one-third of their members every year (with a fourth “off-year” in which no members were elected.  But vacancies can require special elections as part of the council elections to fill vacancies and boundary changes can require the full council to stand under the new ward lines even if the council election is normally for one-third of the council. Continue Reading...

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Ballot Access 2024

By tmess2 | Published April 21, 2024

In a completely shocking turn of events, some states (primarily those with a Republican Secretary of State) seem to be about to deny the Democratic ticket its place on the ballot.  The issue is that every state has a deadline for established parties to certify their presidential ticket to the state election authority.  Ohio is the earliest with a deadline ninety days before the election.  (Depending on the year, that deadline falls between August 4 and August 10.)  By contrast, Alaska’s deadline is forty-eight days before the election (with the deadline falling between September 15 and September 21).

The early deadlines are problematic because they ignore the informal traditions about the scheduling of the conventions and the real world.  The big real world issue which impacts the scheduling of the conventions is the Summer Olympics.  Barring cancellation or postponement (like happened in 2020), the Summer Olympics are always in the Summer of the presidential election year.  Simply put, the political parties want their convention to dominate the news and for all eyeballs to be glued to their convention.  (Of course, as the current nomination system has drained conventions of almost all of the drama, getting people to watch the convention is harder, but the parties do not want to compete with the Summer Olympics for viewers.)  And, over the years, the Olympics have expanded.  This year, the Paris Olympics runs from Wednesday, July 24 through Sunday August 11.  In practical terms, that means that the last potential week for a July convention is the week of July 15.  And, if you want some news coverage during the week leading into the convention, the first potential week for an August convention is the week of August 19.  Going back to 1992, the dates of the Summer Olympics has been:  1992 Olympics — July 25-August 9; 1996 Olympics — July 19-August 4; 2000 Olympics (held in Southern Hemisphere) — September 15-October 1; 2004 Olympics — August 13-29; 2008 — August 8-24; 2012 — July 27-August 12; 2016 — August 5-21; 2020 Olympics (original scheduled dates) — July 24 through August 9.   The other big world impact is that most states now use primaries to award delegates with the last primaries taking place in early June.  That makes it almost impossible for a major party to move its convention before July.

Turning to the informal traditions, the party out of power normally goes first.  The last time that the party in power went first was 1932.  (Prior to World War 2, the Republicans normally went first, but in 1956 (the first time that Republicans were in power after World War 2), the Republicans opted to go after the Democrats, and the tradition of flipping sequence based on which party held the White House has been followed ever since.  The dates for the party out of power since 1992 have been:  1992 — July 13-16 (Democrats/ending before Summer Olympics); 1996 — August 12-15 (Republicans/ starting 8 days after Summer Olympics); 2000 — July 31-August 3 (Republican/Summer Olympics not an issue); 2004 — July 26-29 (Democrats/ending before Summer Olympics); 2008 — August 25-28 (Democrats/starting 1 day after Summer Olympics); 2012 — August 27-30 (Republicans/starting 15 days after the Summer Olympics); 2016 — July 18-21 (Republicans/ending before Summer Olympics); 2020 — July 13-16 (originally scheduled)/August 17-20 (actual dates) (Democrats/ original schedule before Summer Olympics).  In other words, in the previous eight election cycles, the party out of power has held their convention “too late” to comply with the Ohio statute four times out of eight (three times if you use the original date).  The dates for the party in power since 1992 have been: 1992 — August 17-20 (Republicans/starting 8 days after Summer Olympics); 1996 — August 26-29 (Democrats/2 weeks after Republicans); 2000 — August 14-17 (Democrats/2 weeks after Republicans/Summer Olympics not an issue); 2004 — August 30-September 2 (Republicans/1 day after Summer Olympics); 2008 — September 1-4 (Republicans/week after Democrats); 2012 — September 4-6 (Democrats/week after Republicans); 2016 — July 25-28/week after Republicans/before Summer Olympics); 2020 — August 24-27 (Republicans/originally 15 days after Summer Olympics).  In short, the only time in the past 32 years in which the party in power held their convention before Ohio’s deadline was 2016 when the Olympics did not start until August. 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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Easter Convention Update

By Matt | Published March 31, 2024
  • The GOP is considering limiting NBC’s access to the GOP convention due to the Ronna McDaniel disaster
  • Illinois has a special organization just to plan parties and events for the delegation
  • And the battle over who gets to march, and when and where, during the Dem convention continues

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Persuasion vs. Coercion

By tmess2 | Published March 24, 2024

Sometimes, the U.S. Supreme Court will schedule arguments to create a “theme” day.  In other words, the Court will schedule two cases which are technically unrelated but involve similar issues.  By hearing arguments in the two cases back-to-back, the Justices get two factually different pictures of conduct to point out some of the different ways that the issue might arise and, hopefully, can get some input through both cases on how a particular test for judging whether conduct crossed the line would play out.

This week, we had one of those theme days involving when governmental conduct indirectly infringes on the First Amendment.  The first case, Murthy, Surgeon General, vs. Missouri, arises from the efforts of the Surgeon General’s Office to talk with social media companies about posts containing medically harmful information related to COVID.  The nutty Attorney Generals from Louisiana and Missouri (which at that time was now Senator Eric Schmitt) filed a lawsuit in front of a handpicked judge in the Western District of Louisiana seeking an injunction barring all communications between federal officials and social media companies.  That “judge” granted that request.  The Fifth Circuit narrowed the injunction somewhat but left it substantially intact.   The other case, National Rifle Association vs. Vullo, involves a state financial services regulator trying to persuade regulated entities (banks and insurance companies) that they should stop doing business with the NRA.

What seems to be clear from the arguments in these two cases is that the Supreme Court is likely to make a distinction between persuasion and coercion.  In asking questions, several justices fell back on their own executive branch experience.  In traditional media, it is not unusual for reporters to call government officials asking for comments on a potential story.  In some cases, the story is one that, for a variety of reasons, the government official might prefer that the story not get published (or at least that certain details not run).  Sometimes those reasons are good reasons like in a murder investigation somebody might have leaked a key detail from the crime scene to a reporter which the police were intending to use as a “false confession check” (on the theory that only the killer would know that detail so any nut coming in to take credit for something they did not do would get that detail wrong).  But those reasons might not be strong enough for the government to seek a court order preventing publication.  So the government will try to convince the news media that it would be best if that information was not included in the story.  In making this request, the government might offer a “comp” like an exclusive interview with the police chief on some other topic.  It seems like, in the Murthy case, the Supreme Court is likely to slap the lower court and the state AGs hard for what is really a legally meritless argument.  There is really nothing here suggesting that these claims involve anything beyond routine attempts to persuade media to go with the official story.  And the First Amendment does not prohibit the government from trying to convince publishers to do the right thing. Continue Reading...

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