No, Mueller Probably Didn’t Subpoena Trump, Yet

Nelson Cunningham, who has far better legal qualifications than I do but who, as far as I’ve seen, has written very little on the Mueller investigation has taken Politico’s very good reporting on a second appeal involving the Mueller inquiry and started a parlor game among people convinced this means Trump got a subpoena. Jay Sekulow has already denied the report.

Cunningham bases his argument on the following observations, along with the observation that the initial court filings came the day after Rudy Giuliani announced he had completed writing a challenge to an as yet unserved subpoena:

  • The parties and the judges have moved with unusual alacrity. Parties normally have 30 days to appeal a lower court action. The witness here appealed just five days after losing in the district court – and three days later filed a motion before the appellate court to stay the district court’s order. That’s fast.
  • The appeals court itself responded with remarkable speed, too. One day after getting the witness’s motion, the court gave the special counsel just three days to respond – blindingly short as appellate proceedings go. The special counsel’s papers were filed October 1.
  • At this point an unspecified procedural flaw seems to have emerged, and on October 3, the appeals court dismissed the appeal. Just two days later, the lower court judge cured the flaw, the witness re-appealed, and by October 10 the witness was once again before appellate court. Thanks to very quick action of all the judges, less than one week was lost due to a flaw that, in other cases, could have taken weeks or months to resolve.
  • Back before the D.C. Circuit, this case’s very special handling continued. On October 10, the day the case returned to the court, the parties filed a motion for expedited handling, and within two days, the judges had granted their motion and set an accelerated briefing schedule. The witness was given just 11 days to file briefs; the special counsel (presumably) just two weeks to respond; and reply papers one week later, on November 14 (for those paying attention, that’s 8 days after the midterm elections). Oral arguments are set for December 14.

I suspect the subpoena — if that’s what this is — is either for a White House figure (John Kelly or Don McGahn might be possibilities), a lawyer (Trump Organization lawyers Alan Garten and Alan Futerfas both had non-privileged conversations about the pushback on the June 9 meeting, as did Agalarov lawyer Scott Balber), or a journalist (Chuck Johnson and Lee Stranahan have denied having been contacted by Mueller; Hannity would be another possibility).

I’ve laid out the underlying timeline, below. There are three dockets involved in the mystery challenge: 18-gj-41-BAH, which is sealed, and 18-3068 and 18-3071 before the DC Circuit. For point of comparison, I’ve included Andrew Miller’s appeal of a grand jury subpoena in the timeline (which Cunningham doesn’t mention at all), in italics, as well; those docket numbers are 18-gj-34-BAH and 18-3052. I’ve also included some key public reports that Cunningham doesn’t mention that provide key context.

Miller’s docket easily disproves one of Cunningham’s arguments: that the appeal itself was very quick. Miller, like the mystery challenger, both filed their appeal within days (suggesting that timing came from Beryl Howell, not the appellants). With Miller, there was a pause to litigate the issue of Concord Management’s status, but that pause was litigated on the same accelerated schedule as the jurisdictional issue for the mystery appellant. With the mystery appellant, there appeared to be some slam dunk procedural issue for why the Circuit did not yet have jurisdiction. It was suggested to me that the mystery person may not have taken the legal step of being held in contempt before appealing, as Miller did, which would explain the quick jurisdictional response for the mystery challenger.

Miller’s docket also shows that the results of motion to expedite aren’t that dramatic. With no expedited schedule, Miller’s initial schedule (including the Concord litigation) provided him 24 days for his opening brief, gave Mueller 16 days to respond, and Miller 5 days to reply, with 41 days for the Circuit to consider the appeal or a total of 85 days after the filing. As Cunningham notes, the mystery appellant got just 11 days to file the initial brief, Mueller got two weeks to respond, and the mystery appellant got 7 days to reply. The Circuit gave themselves a month to consider the appeal, or a total of 65 days from second appeal. But that works out to be 81 days from the initial September 24 appeal, about the same amount of time as Miller’s appeal. The expedited time here mostly came out of the appellant’s time for the initial brief and the Circuit consideration (which might be a fair outcome given the appeal without jurisdiction); Mueller’s schedule remains roughly similar. It has been suggested that the mystery appellant’s decision to appeal in spite of that procedural flaw may have provided more urgency for the appeal (for example, if Howell had not stayed contempt for the mystery appellant, then the risk of jailing would be greater than it would be for Miller, for whom she stayed the contempt).

Finally, Cunningham doesn’t consider something else in the public record. On October 11, right in the middle of this litigation, CNN revealed that Mueller had given Trump — and Trump was working on — a set of questions pertaining to conspiracy. The other day, Bloomberg reported that Trump had finished answers to that question, but was withholding them pending the outcome of the election. It’s possible that the White House would voluntarily answer questions on conspiracy while litigating a subpoena for testimony on obstruction. Perhaps they would adopt that approach if their subpoena challenge pertains exclusively to actions Trump took as President, and if that were the case, that might explain the real reason Rudy was stalling on returning the answers, to see if the subpoena challenge worked. If that were the case, though, he would have to invent new reasons to explain the delay from November 6 past December 14, when the case will be heard (and he has promised to appeal any subpoena to SCOTUS). Alternately, Rudy could be stalling on the answers to await the appeal and using the election as his excuse just to avoid making this appeal public before the election.

One other thing that might support Cunningham’s argument that he doesn’t raise is Brett Kavanaugh’s confirmation on October 6. Having confirmed Kavanaugh might explain the decision to ask for en banc consideration of what is probably a slam dunk procedural issue, in hopes of short circuiting the route to SCOTUS. But everyone in this investigation, including Yevgeniy Prigozhin’s team, have tailored their actions to Kavanaugh’s presence on SCOTUS since even before he was confirmed.

Still, I think all that less likely than other explanations, not least because this White House has never kept things like this secret, nor would they if they could use it to argue that Trump needs a good electoral turnout to keep him safe, legally.

I’m at least as intrigued by the way the timeline overlaps with Don McGahn’s last big press push, around the same time as the initial filing before Beryl Howell. A lawyer like McGahn would also have reason to want to avoid the jurisdictional step of being held in contempt (indeed, if he had been held in contempt, it might explain one reason for the urgency of the appeal). It’s also one possible explanation for why someone would skip that step — another being that whoever is making this challenge is even less well-lawyered than Miller. Finally, if it were McGahn appealing a grand jury subpoena, Katsas’ recusal would be a no-brainer (though he has said he would recuse more generally).

There are, still, plenty of other possibilities, though. And Cunningham’s case is nowhere near as strong as suggested once you compare it with what happened with the relatively anonymous, powerless Andrew Miller challenge in the very same matter.


6/13/2018: Date filed (18-gj-34-BAH) [For more on Miller’s stalling, since May 10, on this subpoena, see this post]

7/6/2018: Report that Emmet Flood had been contesting Mueller request for John Kelly testimony for a month

8/10/2018: Date of judgment (18-gj-34-BAH)

8/14/2018: Notice of appeal (18-3052)

8/15/2018: Clerks order to file initial submissions on 8/30/2018 (18-3052)

8/16/2018: Per curium order setting briefing Appellant 9/7/2018, Appellee 9/23/2018, Reply 9/28/2018  (18-3052)

8/15/2018: Rudy Giuliani states, “we’re pretty much finished with our memorandum opposing a subpoena”

8/16/2018: Date filed (18-gj-41-BAH)

8/18/2018: NYT story describing third Don McGahn interview claiming unprecedented cooperation for a White House Counsel

8/30/2018 : Statement of issues (18-3052)

8/30/2018: Motion to extend time to file to 9/10/2018  (18-3052)

9/10/2018: Motion to extend time to file to 9/11/2018  (18-3052)

9/12/2018: Appellant brief submitted; Length of Brief: 10,869 Words (18-3052)

9/19/2018: Date of judgment (18-gj-41-BAH)

9/24/2018: Notice  of appeal  (18-3068)

9/27/2018: Motion to stay underlying appeal  (18-3068)

9/28/2018: Per curium order directing response from Mueller (18-3068)

9/28/2018: Appellee brief submitted  (18-3052)

10/01/2018: Mueller response in opposition (18-3068)

10/01/2018: Appellant response  (18-3068)

10/03/2018: Per curium order dismissing case for lack of jurisdiction  (18-3068)

10/05/2018: Date of order  (18-gj-41-BAH)

10/05/2018: Petition for re-hearing en banc  (18-3068)

10/6/2018: Brett Kavanaugh confirmed

10/09/2018: Appellant brief submitted (18-3052)

10/09/2018: Notice of appeal (18-3071)

10/10/2018: Appeal docketed (18-3071)

10/10/2018: Joint motion to expedite  (18-3071)

10/11/2018: Report that Trump preparing answers to Mueller’s questions about conspiracy with Russia

10/12/2018: Per curium order granting motion to expedite Appellant 10/23/2018, Appellee 11/07/2018, Reply 11/14/2018:  (18-3071)

10/22/2018: Hearing scheduled for 12/14/201 (18-3071)

10/22/2018: Appellant brief submitted; Length of Brief: 12904 words (18-3071)

10/24/2018: Per curium order denying re-hearing en banc (with Greg Katsas recused) (18-3068)

10/29/2018: Rudy Giuliani states legal team has prepared written responses to several dozen questions from Special Counsel Robert Mueller but say they won’t submit them until after next week’s elections and only if they reach a broader agreement with Mueller on terms for the questioning

11/8/2018: Hearing scheduled (85 days after filing)

12/14/2018: Hearing scheduled (65 days after filing) (18-3071)

42 replies
    • jf-fl says:

      Trip makes a good point.

      EW does an excellent job of providing context and other possibilities, but she doesn’t really provide much of anything to refute Cunningham’s suggestion that Trump could have already been subpoenaed in sealed orders, and that we wouldn’t necessarily know.   When I first read this article, he wasn’t stating this was a fact or irrefutable conclusion… just pointing out it’s possible.   I thought his article was important because it points out another way that Mueller as a prosecutor is very different than Ken Starr, and this investigation has been light-years more speedy, focused, quiet and successful than any of the umpteen-gates Starr presided over.     Just more context.

      That said EW’s idea that speed doesn’t imply much is valuable, that it’s McGahn or someone of similar level of importance makes sense (is hannity more or less important in the white house than chief cousel and chief of staff?).     While she doesn’t touch on this part of the argument as much, I think the strongest evidence that the president hasn’t been subpoenaed is that the official WH line is that the investigation is still just a witch hunt (not a coup or something more hyperbolic).

      Also, other than one tweet when Trump suggested he had 100 pictures of Mueller and Comey kissing, I don’t recall any notable change in the insults/tone or frequency of Trump’s Mueller references during the timeline of these legal motions.

      • Jack says:

        Did anyone compare the dates to McGahn’s sudden departure date? He left very quickly and Trump soon dumped on him as if we were a turncoat.

  1. pseudonymous in nc says:

    It’s hard to tell from Politico’s reporting whether they chose not to identify the lawyer seeking the transcript at the DC Court of Appeals because that lawyer wouldn’t identify himself, or that they genuinely didn’t know who it was. If it’s the latter, that’s notable. Either way, it’s notable that Politico mentioned it in this way.

    I’d assume Politico’s court-watchers are familiar with the lawyers and firms who’ve been involved with the Russia investigation for a while, but I’d also assume that for sealed cases any defending parties wouldn’t want to make it obvious they were involved. Bill Burck has been in and around the investigation since the outset, and the DC office of Quinn Emanuel isn’t that big.

    But: the timing and language of that McGahn story — “has cooperated extensively”, “that investigators would not have learned of otherwise”, “voluntary interviews” — feels a lot like a public rebuttal: “c’mon, I’ve already given you everything!” The reporting surely predates the GJ case being filed, but if it does involve McGahn, he and Burck surely knew ahead of time.

    If it was a GJ subpoena, the scheduling appears to be between Davis and Miller (where Miller didn’t show) and Credico. Does a GJ try to maintain a narrative? If so, that points more to the 2016 campaign, when McGahn and Katsas were both at Jones Day…

    • ST says:

      I read it was the latter. Namely, a reporter offered their business card and the lawyer at the courthouse basically said, “nah, I’m good.”

    • emptywheel says:

      It was not someone the Politico reporter recognized. But they allow it could have been someone random sent to the courthouse.

      And yes McGahn fits nicely wrt timing, but I’m not sure the GJ has had that kind of narrative.

    • Drew says:

      Frequently the lowermost/most obscure of associates will be sent to the courthouse to deal with filings & requests from the clerk, ESPECIALLY when press are likely to be around. Someone of my acquaintance was sent to file the papers to remove a franchisee’s franchise when a local TV station filmed rat’s in the window of that place of business. There were questions to be dodged on the way out of that filing.

  2. NorskieFlamethrower says:

    I have been most intrigued (and concerned) about Mad Man Miller’s contest of his subpoena and his apparent argument challenging the scope of Mueller’s mandate. I wonder if Miller on record in front of a grand jury isn’t the lynch pin (or one of ’em) in bringing indictments all the way through the Trump organization and the campaign. Will we get an attempt to fire Mueller in order to keep  final evidence from being secured in the judicial process?

  3. smurphy999999999 says:

    If it was trump why would his lawyers want this expedited? Wouldn’t they want to ensure it dragged out past the midterms? Also what determines if these kinds of cases are public like Millers or under seal like the mystery one?

    If we take the judge at his word during his confirmation hearing that he would error on the side of recusing for Russia things then there are quite a few people who could be subpoenaed who would trigger that recusal on appeal considering that he worked in the WH Counsel’s office and at Jones Day while Jones Day was representing the campaign. Until we have more information we don’t really have any good indication about who the appellant is.

    On a side note: where can you see the docket information for sealed cases like this?

  4. Avattoir says:

    1. Cunningham closes his piece with this: “It all fits.”

    Well, it fits a whole bunch of other things at least as well. That’s the kind of misleading horseshit that gets up my nose with c.v.-warriors like Cunningham, who at most dipped a toenail in the cesspool of Rudy’s lair at SDNY.

    How misleading? The test for drawing inferences is that a particular conclusion is consistent with all known facts AND inconsistent with all other rational conclusions. The glib closing doesn’t incorporate the latter phrase, and I don’t see it raised elsewhere in the piece.

    I mean, Paul Campos put up such a more compelling case in his series of articles arguing that Shera Bechard’s “David Dennison” was actually Trump rather than Trump’s campaign finance chair, the convict Eliot Broidy – so much more, I’m tempted to go with disingenuous over misleading.

    2. WTF gives with Cunningham writing this piece, anyway? Surely it can’t as simple as ‘It’s Politico, Jake’ & he’s piece work for Rudy – tho, without more: it all fits.

    3. Is my contempt showing? Cunningham’s a member of a class of attorneyasses beltwaynia I expect others here also have come across. The broader genus knows a little about so much that it actually knows doesn’t know how to do anything, but usually stocks a massive hump listing others in the herd who do or might know someone who does. The best of these are General Counsel, and, depending on experience, shrewdness & wisdom, some of those can be quite valuable. The worst do a lot of fly-casting for connections to future employment.

    • Peterr says:

      Cunningham puts far too much import on Katsas’ recusal being a flag that Trump must be the witness. I think Marcy is spot-on that the witness is much more likely to be someone like John Kelly or Don McGahn, which would create exactly the same kind of rationale for recusal by Katsas. I have a harder time seeing why Katsas would recuse if the witness was a journalist like Chuck Johnson or a “journalist” like Sean Hannity, unless he’s made a blanket statement that he’d recuse for any matter that is even tangentially related to his time at the WH.

      But hey — as long as we’re speculating here, it seems to me that what Cunningham lays out could just as easily point to Katsas himself as the mystery witness.

      • Avattoir says:

        Maybe I’ve missed something, but A. Marcy’s point is it’s not even clear a subpoena’s involved, and B. assuming a subpoena, on what basis is it assumed to be for someone to attend on the Grand Jury – why couldn’t it be a subpoena seeking production of some sort of documents, such as emails on a particular topic or heading over a specified period?

        Ach! I can’t shake the feeling we’re being played on this.

        Also, I wish the Mueller mice had at least been working up a better quality of mystery than this for her to work out.

        • pseudonymous in nc says:

          It’d be useful if the lawyers here — especially those with prosecution experience — could sum up the types of litigation that typically arise from a grand jury. That includes subpoenas to attend or produce, but what else…?

          Witness tampering? Unlawful disclosure of grand jury matters to another party? Disclosure of proceedings to the president and [acting] AG?

          Is it plausible that King Idiot and his lawyers have tried to peek inside the GJ over the summer by invoking Article II powers?

  5. SC says:

    ”  . . . everyone in this investigation [has] tailored their actions to Kavanaugh’s presence on SCOTUS since even before he was confirmed.”

    I can see why Trump wants to overturn US v. Nixon and/or Clinton v. Jones but it’s unclear to me how Trump will do that. Both of those cases were decided by unanimous decision and both of them have been tested in various ways since they were issued, right? Courts have not been issuing rulings related to Trump that go against US v. Nixon and/or Clinton v. Jones as far as I can tell. Trump would land in front of SCOTUS by appealing up the court system, right? But . . . even assuming that Kavanaugh is hostile to US v. Nixon and/or Clinton v. Jones, how will something related to the current investigations that involve Trump land in front of SCOTUS? Even if every lower court decides that US v. Nixon and/or Clinton v. Jones is settled law, Kavanaugh can, by himself, decide to reexamine those cases? What am I missing here? I see Kavanaugh to be as partisan as they come and I’m ashamed he’s on the Court but it’s unclear to me how he can cause problems for Mueller. How are lawyers tailoring their work protecting various bad guys in ways specific to Kavanaugh being on the Court? What am I missing?

      • SC says:

        Hmmmmm? What might Merrick Garland have to do with reversing US v. Nixon and/or Clinton v. Jones? (As is no doubt obvious I don’t know from law so if this is a law/legal joke, ‘splain please.)

        • Avattoir says:

          The “conservative” majority on SCOTUS is overwhelmingly unlikely to be deterred by any naif’s credulity on how they’ve been going about disassembling the New Deal over the last several decades.

          They never have & I think never will make any schoolboy fantasy full frontal iconic pre-WWI Brit military-style attack. Those types of assaults are too vulnerable to being the subject of actively mobilized organized public protest, the sort of thing that gets heads cracked and folks tossed into jail on bogus charges between 1 to 3 years before scattered signs of some broader public rebellion show up in the odd midterm election (1968, 1976, 2006, to some extent this year).

          Instead, they work along the lines of an old-time military siege of a city state,  playing Judicial Jenga, undermining, undermining, undermining, until the thing collapses, seemingly on its own.

          But every once in a while, there’s a costume malfunction and out they come with Bush vee Gore, fingers crossed mouths spewing regret that the libs went too far left insufficient wiggle room forced their hand anyway just this once never again shut up shut up shut up.

          • orionATL says:

            you’re deviating into poetry, avattoir. but wait a minute, poetry’s not deviance – delightful reading, as always.

        • greengiant says:

          SLF jokes about your ” land in front of SCOTUS” remark. Garland, Chief United States Circuit Judge of the United States Court of Appeals for the District of Columbia Circuit to which any Mueller DC appeals lead. From my outside the park seat it was explained, everything appealed will land in front of SCOTUS in most foreseeable paths and the attorneys for TrumpRussia have already been making arguments that Kavanaugh has already gone on record for granting. I don’t see what you don’t understand. Super excellent opinion(s) by Garland et al to be overruled by “I like beer” and crew, coming soon.

  6. Sam says:

    If you are right in your guess that the procedural quirk in the first appeal was a failure to get a contempt finding before appealing, I think that (IF correct) rules out Trump.  Didn’t US v Nixon hold that President, unlike most, doesn’t need a contempt finding to make subpoena enforcement appealable?

  7. Tom Maguire says:

    First, thank for the baseline comparison. My reservation with the Cunningham analysis is that it provided no comparisons to the timeline of other cases. Avattoir waxed eloquently on the confirmation bias of ending the analysis when the data fits the box you hand-picked for it, without stopping to see if it fits other boxes as well. (Cunningham had more than a toenail in the Giuliani/Milken prosecutions, however.)

    Let me throw a curve ball here – the most likely reason I have not seen this next idea elsewhere is that its terrible but…

    The Galindez case on the limits of grand jury secrecy has been moving through the DC Circuit</a> this summer. It overlaps with Mueller because it *may* or may not restrict his ability to file a report with Congress that uses grand jury info.

    At some point Mueller may have to slug it out with the White House on just what those issues are. I wouldn’t think it was ripe yet, but then, if Mueller is planning to wrap up anytime soon he needs to get those issues resolved.

    So – any chance that we are seeing a back and forth involving Mueller, grand jury secrecy rules, and his reporting limits? That could still jibe with a Katsas recusal (too close to WH). Katsas was on a three judge panel on the Galindez thing, but that wouldn’t be grounds for recusal here or the other two would recuse as well.

    I don’t know what the ebb and flow of those filings might be or whether the issue is ripe but at some point it will be addressed.

    • Avattoir says:

      It’s like “It all fits.” is a game that just goes on and on.

      Other candidates could arise from sub-genres of evidence introduced to Grand Juries, such as – and I raise this in particular here – communications swept up by the NSA, including in particular conversations over cellphones or other supposedly secure e-means, the interception of which arguably might be justified, even reverse-justified, as either specifically provided for in FISA orders or arguably justified under trawler nets by such as s. 702.

      (BTW, on the front of what Cunningham got up to as an AUSA in Giuliani’s SDNY, I’m not about to highjack our hostess’ website for a trip via the Wayback Machine down the thru the weeds and into the wormhole of the SEC / SDNY prosecutions of Michael Milken that led to his (very few and several quite technical) guilty pleas in November 1990. But I will just note in passing my view that the prosecutions that culminated in those pleas constitute a stark demonstration of how prosecutions under the RICO act, particularly when commingled with SEC mandatory filing regs, could be press-ganged into abuse of the Rule of Law. I don’t suggest Milken was ‘innocent’ in any broad sense – the impression I have is that his extraordinary success lay in his understanding how the flaws and corruption inherent in the regulation of financial markets – or rather, the lack thereof – oversight could be exploited; but I DO suggest the SDNY’s tactics in that investigation typified Giuliani’s clannish thuggery and how Rudy & his henchmen clearly viewed the exercise of official government authority in ways that fundamentally confused persecution with prosecution. And tho I don’t have personal insider experience with how those investigations were pursued at the technical levels, people I know were in fact so involved, whose views I value, have told me Cunningham’s role lay almost entirely with mobilizing and enabling that commingling.)

      • Tom Maguire says:

        In the interests of full partial disclosure I should mention that I and most of my social circle were in banking, investment banking, etc. VERY Manhattan mid-80s. But some corporate lawyers were in the mix and some had friends on the, well, dark side is unfair – friends who’d left corporate law to join the SDNY. Very engaging, smart enough to have gone to top law schools, fascinating stories, but…

        Let’s say I was part of some heated dinner and cocktail parties. Never a fistfight, fortunately but sometime we’d send guests (hmm, one Drexel guy especially) to their respective corners. Lot of sincerity and commitment on both sides but yes, I thought some of those RICO shows were outrageous. Actually, letting a guy jump from US Atty to the mayor’s race was outrageous – the Marcos prosecution where the judge asked “Why is this trial even in New York?” was one of many low showboating moments.

    • pseudonymous in nc says:

      That’s a reasonable hypothesis, but it raises the question of who the counter-party or parties would be in a case arising from the Mueller GJ.

      Since it’s all speculation for now: given that the initial filing was in mid-August, before the DOJ rule-of-thumb cutoff date, but done expecting a ruling after that date, should we expect it and the appeals to be unsealed after Tuesday next? And if they’re not unsealed, does that tell us anything?

      • Avattoir says:

        You lucky dog, pseud: it seems you’re playing  Hashbros 11ty Dimension Edition of “It all fits.”

        Version Eleventy allows the players to add in additional reasonable conditions that the intrepid sleuth icon Nelson can boost into, to account for up to as many as 8 additional dimensions in effort to escape from many of the other additional not-unreasonable suppositions that are consistent with the known facts, called HA-ha’s.

        • pseudonymous in nc says:


          I’m mostly trying to establish the domain of plausible things that would arise from a grand jury, involve a ruling from Chief Judge Howell and then an appeal to the DC Circuit.

          I looked back at Judge Howell’s opinion last year compelling that lawyer for Manafort & Gates to testify under the crime-fraud exception. There’s no public docket for that case, but it took about two weeks of filings and hearings between subpoena and ruling, and the entire thing was sealed for another four weeks until the indictments.

  8. Doctor My Eyes says:

    Since the idea of an end run around Merrick Garland was mentioned, perhaps this is an appropriate place to ask about something that has been bothering me. The DOJ threatened in the DACA case to request SCOTUS hear the case prior to the lower court ruling. Though this was described as a seldom requested, seldom granted petition, I am not reassured that the future will resemble the past. This seems a way to avoid even having commentary from a sensible judge before SCOTUS black hole disappears reality. Is this a real issue?

    A petition for a writ of certiorari to review a case pending in a United States court of appeals, before judgment is entered in that court, will be granted only upon a showing that the case is of such imperative public importance as to justify deviation from normal appellate practice and to require immediate determination in this Court.

    • Avattoir says:

      If it’s deviant rulings the petitioners are after, then applying to this newly Kavanaugh’d SCOTUS all fits.

    • Peterr says:

      There is a very very narrow category of cases that SCOTUS can hear as the court of original jurisdiction (that is, without a lower court ruling coming to them for appeal). Almost all their cases are appeals from lower court rulings. From

      The Court has original jurisdiction (a case is tried before the Court) over certain cases, e.g., suits between two or more states and/or cases involving ambassadors and other public ministers. The Court has appellate jurisdiction (the Court can hear the case on appeal) on almost any other case that involves a point of constitutional and/or federal law.

      What you cite appears to be the rare leapfrogging of the circuit court of appeals, with a case going from the district court straight to SCOTUS. The rules on that generally require that the district court ruling be final, and then SCOTUS agrees to take the case directly largely because of the need for an immediate ruling. US v Nixon is an example of this.

      • Doctor My Eyes says:

        Thank you for that. And who determines whether these rules are important enough to observe or are just so much constitutional nicety that is getting in the way of powerful people doing as they please? If it’s SCOTUS, then I foresee a problem.

  9. orionATL says:

    what fun.

    this is why we come to emptywheel – and come back again and again.

    the inscrutable made analyzable – again and again.

    and with a chronology to boot.

    where can you get a better deal?

  10. earlofhuntingdon says:

    The Supreme Court is apparently signaling its continuing preference for mandatory private arbitration in disputes between individuals and large corporations: employers, banks, sellers of goods and services, the lot.  Reuters indicates its preference for that outcome in its headline: U.S. top court wary of limiting company power to arbitrate disputes.

    The framework of the headline suggests that corporations have an inherent power that the Supreme Court is reluctant to tinker with.  In reality, the use of arbitration in the context of an individual vs. a large institution is a recent development.  It is a creature of legislation and, above all, Supreme Court case law.  It is a power the Court can give, modify, or take away, in the manner of the transaction depicted on the ceiling of the Sistine Chapel.  It comes by way of the Court’s return to a romanticized, Lochner era version of “freedom of contract.”  The practice is as full of unrealistic assumptions as any Nobel laureate’s economic theorems.

    In legal and economic theory, freedom of contract assumes that two parties to a contract have comparable knowledge, resources, and power, and that they voluntarily enter into the agreement.  In reality, no employee possesses any of those resources in the same measure as her employer.  Except at the c-suite level, the employee’s option is take it or leave it.  That’s also true when an individual licenses software, buys a car, or buys banking or cable services.

    Companies prefer to arbitrate claims because it is cheaper and faster than litigation in court, which carries a greater risk. Businesses also prefer to handle disputes with individuals – instead of groups in class-action lawsuits – because such litigation can result in hefty damages awards by juries and is harder to fight.

    That description from Reuters is true, but materially incomplete.  Corporations, for example, prefer to argue with a single individual because they can overpower them.  Corporations also control the arbitration process: their representatives wrote the rules, and choose from among the many available which set to use.  And unlike a sole litigant’s choice, a corporation’s repetitive use of an arbitrator or her firm generates a stream of income.  When it comes time to pay the rent, disinterestedness has its limits, even if the bias is unconscious.

    Above all, corporations prefer to arbitrate because it is secret.  No one learns about the outcome.  No plaintiff’s lawyers or potential plaintiffs, no regulator or government oversight committee, no host community, no set of customers or suppliers, no banker whose loans keep the company afloat learns about the facts of the case or an award adverse to the company (apart from arcane disclosures required of public companies or in loan or private investor agreements).

    Wins and losses, the amount of the award, how readily – or not – it is paid, and whether it includes punitive damages (an act not likely to win an arbitrator further work), might be available through the grapevine, but they are formally secret.  Spilling the beans can be costly, which makes it hard for similarly harmed individuals to share information or resources in their attempts to hold corporations accountable.  Lastly, no award influences any other award.  It does not become a precedent that binds any arbitrator to decide any other case the same way.

    All in, mandatory secret arbitration makes the work of regulatory agencies and government oversight committees virtually impossible to perform.  Accountability suffers and harm escalates.  That lack of accountability further concentrates power, increases inequality, and harms democracy.  The Supreme Court’s newly expanded majority seems to think that’s a fair trade for increased efficiency.

    • Doctor My Eyes says:

      Masterfully worded, ruthlessly argued, and as helpful as pointing out 50 Jolly Rogers (Jollies Roger?) coming over the horizon. These days I think often of the biology professors in the failing Soviet Union who met daily to record the progress of the starvation they knew would be their end.

  11. Trip says:

    Breaking News, from the Holiday Inn:

    Jared Holt@jaredlholt

    Jack Burkman’s fly is down

    HAHAHAHAHA! Fucking hilarious. You getting all this, Coen Brothers?

      • Trip says:

        Hahahaha. Makes sense.

        The other thing that is bonkers is Wohl being “upset” that someone photoshopped him into an ear of corn, and now people are calling him “Jacob Cornwholio”

        I swear this is a Sacha Baron Cohen flick. It can not be real. (Can’t stop laughing)

  12. Trip says:

    Somehow I missed this. On Tuesday, the very same day he crashed a mourning city that didn’t want him there for not disavowing/condemning white supremacy, after they were devastated by a supremacist’s terror attack and massacre, this happened:
    Trump admin will apparently not renew program to fight domestic terror

    According to a March DHS progress report on the program, the “vast majority of projects are making substantial progress.”But now it appears the DHS has no plans to continue the program past the end of its funding in July 2019. Recipients have been told the funding was a “one-time” funding opportunity….Up until Tuesday, the website for the DHS Office of Terrorism Prevention Partnerships suggested that a funding announcement was upcoming but a DHS spokesperson now tells NBC News the website was out of date and changed it to remove any reference to future funding.

    • Doctor My Eyes says:

      We need to understand that this is more than political expediency. People have gained power who want our country to fall, who are working to create a society mediated by violence, whose democratic institutions are a joke. This is the goal. It is not stupidity or mere narcissism To the extent Russia is pulling the strings, they want to inflict suffering on Americans. To the extent it’s the uber-wealthy the goal is to destroy democracy and the free press. This is not a halfway battle. These men are not clowns.

      • earlofhuntingdon says:

        Failed states tend to have a small coterie of nepotistic authoritarian leaders who profit from the chaos they enable and inflict without hesitation or second thoughts.

        They are usually beholden to foreign potentate – both corporate and state actors – who compensate them handsomely, but at a fraction of the cost it would require to run a competent government.  In exchange, they obtain resources, influence, and control at a fraction of the cost of having to pay market rates for those resources.  The proceeds go to the failed state’s leadership, not its people.

        The wealth that could be generated, for example, by selling American resources at rates similar to those that once prevailed in the Congo or Indonesia would be indescribable.  Trump has already begun such a process by opening virtually all government lands to resource extraction at fire sale prices.  The chaos that would result from Brexit would create a period of similar fire sale values for significant UK resources.  What’s happening in America is not unique, but it is happening in America.

        • Doctor My Eyes says:

          Thank you for that. Somehow it’s comforting to have company in these views. I am ashamed that, knowing my own country has been doing this and much worse to others and for decades, my feelings are so much stronger now that it is happening to me and mine. But that’s how it is. Karma sucks. Or, as Reverend Wright said, “The chickens have come home to roost.”

  13. jonW says:

    Could someone tell me: if Trump (or a new AG) stops the Mueller investigation, and the House falls to the Dems, will a new House committee be able to commission an investigation from Mueller that essentially picks up where he left off? Who do the materials belong to that Mueller has compiled up until now, and is there any legal basis for preventing him from using anything he has learned or documented during the DOJ-appointed special counsel position, if he is appointed by a House committee to do similar work?

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