Trump Claims Absolute Immunity

I’m going to have to come back and explain the obvious holes in Trump’s argument that he has absolute immunity to commit crimes to steal the election.

But here’s the Tl;dr:

He argues that because he was acquitted in his impeachment trial, he cannot be held accountable (even though numerous Senators said they voted as they did knowing he could be held criminally liable).

He’s misreading his claimed citations, especially the amicus DOJ submitted in Blassingame. Here’s that amicus for your comparison. And here’s Amit Mehta’s opinion in Thompson, which the amicus addressed. Here’s a link to Nixon v. Fitzgerald, the civil case clearly about official acts on which Trump primarily relies.

His spinning the scope of the indictment (importantly, to exclude all claim of incitement, which as I noted DOJ just laid out).

The indictment alleges that President Trump took a series of actions that form the basis of its charges. These acts fall into five basic categories. The indictment alleges that President Trump, while he was still President: (1) made public statements about the administration of the federal election, and posted Tweets about the administration of the federal election; (2) communicated with senior Department of Justice (“DOJ”) officials about investigating election fraud and about choosing the leadership of DOJ; (3) communicated with state officials about the administration of the federal election and their exercise of official duties with respect to it; (4) communicated with the Vice President, in his legislative capacity as President of the Senate, and with other Members of Congress about the exercise of their official duties regarding the election certification; and (5) authorized or directed others to organize contingent slates of electors in furtherance of his attempts to convince the Vice President to exercise his official authority in a manner advocated for by President Trump.

And he interprets the Take Care clause to give the President to usurp the power of other parts of government — in this case, Congress and the states.

Third, Thompson’s conclusion that “[t]he President’s Take Care Clause duty … does not extend to government officials over whom he has no power or control,” id. at 78, proves far too much. That formulation entails that the President’s urging the Supreme Court to rule a certain way in a case to which the United States is not a party—for example, in an amicus brief filed by the Solicitor General—is a purely private action outside the “outer perimeter” of Executive responsibility, simply because the President has “no power or control” over Article III judges. Id. That is illogical. Rather, the Take Care duty must extend to exhorting other officials to exercise their responsibilities in a manner consistent with the President’s view of the public good— especially when the issue affects the civil rights of millions of federal voters and addresses a “bedrock function of the United States federal government.” Doc. 1, at 2.

One final thing you’ll note as you read: Trump focuses a lot more attention on issues that are genuinely a close call — his conspiring with Jeffrey Clark — than on his intrusions into Congress’ reserved duties. As noted, he entirely ignores his role in stoking violence.

261 replies
  1. happyness says:

    Hang on – was that ‘take care’ or, given we’re talking about trump, shouldn’t it be ‘fake care’ ?

    – sorry, I couldn’t resist.

  2. Peterr says:

    From US v. Nixon, 418 U.S. 683 (1974)

    MR. CHIEF JUSTICE BURGER delivered the opinion of the Court.

    This litigation presents for review the denial of a motion, filed in the District Court on behalf of the President of the United States, in the case of United States v. Mitchell (D.C.Crim. No. 7110), to quash a third-party subpoena duces tecum issued by the United States District Court for the District of Columbia, pursuant to Fed.Rule Crim.Proc. 17(c). The subpoena directed the President to produce certain tape recordings and documents relating to his conversations with aides and advisers. The court rejected the President’s claims of absolute executive privilege, of lack of jurisdiction, and of failure to satisfy the requirements of Rule 17(c). The President appealed to the Court of Appeals. We granted both the United States’ petition for certiorari before judgment (No. 7 1766), [Footnote 1] and also the President’s cross-petition for certiorari

    Page 418 U. S. 687

    before judgment (No. 73-1834), [Footnote 2] because of the public importance of the issues presented and the need for their prompt resolution. 417 U.S. 927 and 960 (1974).


    Page 418 U. S. 707

    The impediment that an absolute, unqualified privilege would place in the way of the primary constitutional duty of the Judicial Branch to do justice in criminal prosecutions would plainly conflict with the function of the courts under Art. III. In designing the structure of our Government and dividing and allocating the sovereign power among three co-equal branches, the Framers of the Constitution sought to provide a comprehensive system, but the separate powers were not intended to operate with absolute independence.

    “While the Constitution diffuses power the better to secure liberty, it also contemplate that practice will integrate the dispersed powers into a workable government. It enjoins upon its branches separateness but interdependence, autonomy but reciprocity.”

    Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. at 343 U. S. 635 (Jackson, J., concurring). To read the Art. II powers of the President as providing an absolute privilege as against a subpoena essential to enforcement of criminal statutes on no more than a generalized claim of the public interest in confidentiality of nonmilitary and nondiplomatic discussions would upset the constitutional balance of “a workable government” and gravely impair the role of the courts under Art. III.

    To their credit, Trump’s lawyers at least mention Youngstown. To their shame, but to no one’s surprise, they misapply it. Jackson is laying out a construct describing three levels of consideration given to presidential claims of authority, and does not say anything close to what Trump’s team says it says.

    And to quote Youngstown in support of a claim of absolute presidential immunity is . . . absolutely ridiculous.

    • says:

      OMG! You’ve got to be kidding. The majority decision or Jackson’s concurrence?

      no longer waiting til after lunch to dig into the motion. You’ve got me really intrigued now!

      • says:

        *before …?

        (I assume Trump’s attorneys would want to avoid mentioning the holding of the majority that Pres’s can’t just do anything they want).

        Digging in now.

        • Ebenezer Scrooge says:

          Youngstown is one of those very rare cases where the concurrence is more important than the opinion.

    • CaptainCondorcet says:

      “Ridiculous” is kind of you. Justice Black is something of a judicial hero to me (insomuch as any can be). So it’s almost reprehensible to take a 6-3 majority opinion he wrote smacking down Truman’s attempted government takeover of private industry and even try to use it defending unprecedented immunity claims. All this does is solidify my opinion that Trump’s lawyers have become aware that sanctions are more and more likely on the table and are putting their effort into cranking out just enough that they can stall one more day without getting into too much trouble.

      • Peterr says:

        I’m waiting for a law school to ask for their diploma back.

        “I’m sorry, but if you said that in an official filing before a DC federal judge, it’s obvious that there was some irregularity in you being able to pass the required course in Constitutional Law. Hacking the registrar’s computer records? Bribing/blackmailing the professor? Paying someone else to impersonate you on papers and exams? Plagiarism? Something else? We don’t know which kind of irregularity it was, but your filing proves that you are not worthy to be considered a graduate of our school. Please return the diploma in your possession to the registrars office in the next 7 days.”

  3. says:

    one hopes that in the Government’s reply to this dismissal motion, a reference to Sen. Romney’s book — specifically the passages saying some senators who voted to acquit did so because they feared for their safety and the safety of their family — will get some prominence. Threats of violence (perceived and internalized by senators) cannot be used as justification to dismiss an indictment resulting from Trump’s prior threat of violence to Congress and his VP that he actually not only threatened, but actually carried out!

    not read the motion yet, but the 1)speech, 2)speech, 3) speech, etc argument is likely Trump’s strongest. Expecting Elonis to be the authority in this one, or any more recent cousin.

  4. Rugger_9 says:

    This assumes there is a Presidential immunity defined in the Constitution in the first place. It’s not in Article II anywhere. The closest Article II has is the ability to grant pardons for offenses against the ‘United States’. The failure to refer to just the States (as is done elsewhere) means that the state prosecutions are not pardonable. Only the Supremacy Clause would provide an opening.

    The immunity of a head of state also is not in the Constitution either.

    Executive ‘privilege’ falls into the same bucket. It is nowhere in the Constitution either. If one looks at precedents from the UK Parliament the opposite is true after they passed the law requiring ministers to sign their advice to the monarch to ensure they would be held responsible.

    What we have seen is a cobbled-together collection of self-interested opinions and ad-hoc decisions being used as precedent to declare the President as omnipotent for all time. Defendant-1 certainly sees it that way, recall his statement that Article II gave him the power to do what he wants. That concept alone in his mind justified the whole plot.

    This should be a 9-0 slam dunk rejection at SCOTUS if it gets that far. Whether the reactionary majority agrees with me remains to be seen.

    • Rugger_9 says:

      IANAL, but Youngstown did not go far enough to wreck the idea. I would note that if this is looked at properly, there are several points that should undermine the whole motion.

      For example:
      Failure to follow the law on elections by bypassing the process defined therein.
      Failure to defend the United States from attack.
      Conspiracy to overthrow the government through insurrection.

      Any claim of immunity ought to include proof of a bona fide effort to perform the duties committed to in their inauguration oath. There is none here.

      • Rugger_9 says:

        Let’s also look at the failure of the Senate GOP to convict and remove Defendant-1’s ability to run for office, because Defendant-1 is citing that as a basis of what looks like a double jeopardy claim.

        Even McConnell clearly split those hairs in the defense at the time, noting that the criminal and/or civil justice system was the appropriate forum for those trials.

      • Namaste_MF says:

        I guess what I don’t understand about Trumps ‘absolute immunity’ arguments is the disregard for the idea that, if accepted, Biden could just send in a team and throw Trump in Gitmo. Harris could decide to disregard all Trump votes in the next election, possibly all Republican votes all together.

        If they keep attempting these types of arguments in court, in front of a jury, I would assume this would be the argument any prosecutor would immediately go to- because they aren’t arguing, truly, that these are Presidential powers- they are arguing they are Trump powers.

        Biden didn’t challenge electoral votes in the Senate when Trump won. Gore didn’t when he was the actual candidate in a very close election. Biden immediately turn over classified materials when found, while he is the sitting President.

        Why even have elections or courts? If the President can just decide and do as they please?

        • theartistvvv says:

          “Biden didn’t challenge electoral votes in the Senate when Trump won.”


          Or am I misundertstanding your point(s)?

        • dopefish says:

          Namaste_MF was probably referring to Biden being Obama’s VP, and thus presiding over the counting of the electoral votes when Trump was elected in 2016 (like Pence did in 2020).

  5. brucefan says:

    I’ll be down in the weeds soon enough, but my initial reaction is Trump will say (1) this argument should win, but (2) if it doesn’t, isn’t the fact that I believed it enough to get me off the hook?

    IOW, it’s playing out just like we expected.

      • theartistvvv says:

        ““doesn’t believing it get me off the hook?” Isn’t that the Kastanza defence?”


        (Sorry, I’m on a roll. ;-D )

  6. earlofhuntingdon says:

    Trump’s John Lauro cites US v. Nixon as an afterthought, as if he’s pretending to recognize on point precedent without doing so. But manages to avoid its main holding: that presidential immunity is Not unlimited, but gives way in the context of a criminal prosecution. He argues, using only cases involving civil liability, for unlimited presidential immunity from criminal prosecution. The combined treatment would not earn a passing grade in law school.

  7. earlofhuntingdon says:

    Trump’s John Lauro frequently cites Marbury v. Madison, a seminal 1803 Supreme Court case, which tells you he’s in a heap of trouble. If he weren’t, he wouldn’t have to go so far back for a precedent, only to miscite it. And as he does with Youngstown and US v. Nixon, he fails to cite its main holdings or cites it for arguments it does not support or which are irrelevant to Trump’s case. Teri Kanefield calls that “creative” lawyering. I have other words for it.

    • earlofhuntingdon says:

      What is creative is the neutral characterization Lauro comes up with to describe the acts listed in the SC’s indictment. He deserves a Bulwer-Lytton for it.

      • Ebenezer Scrooge says:

        “All I did was squeeze my finger while holding onto a chunk of iron. It would be preposterous to call that murder with a weapon!”

  8. earlofhuntingdon says:

    The President’s authority to take “Bold and Unhesitating Action” does not include include firing a real or virtual weapon down Main Street, either to test it out or to reduce the number of those who oppose his will. Lauro argues to the contrary, that a [Republican] President is immune from the world, regardless of what he does, where he does it, or why.

  9. scroogemcduck says:

    He might as well have written “I have an Article 2 that gives me the power to do whatever I want” in sharpie on the filing.

    Smith’s office will be copying and pasting it’s response from Judge Mehta’s ruling as I write this.

  10. velcroman says:

    The five categories mentioned by Trump’s lawyers consist of making statements, communicating and directing.
    Making statements about the election sounds perfectly fine. Trump’s lawyers are acting as if the content of those statements is irrelevant.
    Making statements about the current state of a crowded theater is fine. Trump’s lawyers are pretending that whether you are yelling “Fire!” or not is irrelevant.

  11. earlofhuntingdon says:

    I don’t imagine that ruling on this Motion will tax Judge Chutkan or her clerks, but they will have to be careful not to read it while enjoying a soft drink or cup of coffee.

  12. CronicProblems says:

    I couldn’t get past the first line of the Introduction. I thought “we the people” were the heart of our system of government, not the President. And “we the people” set up three co-equal branches of government as a check on the desires of any would-be tyrants. I’ll have to go back and re-read my high school civics lessons.

  13. harpie says:
    Oct 5, 2023 · 8:46 PM UTC

    Back in August, my #SCOTUS newsletter focused on Nixon v. Fitzgerald, and why the Court’s 1982 decision *doesn’t* support a President’s absolute immunity from criminal prosecution, especially if the prosecution happens after the President leaves office: [link]

    Scroll down the linked article to the section “long read” section.

    • earlofhuntingdon says:

      From the DoJ’s amicus brief in Blassingame, which was requested by the court:

      “Nixon v. Fitzgerald establishes a rule of absolute immunity for the President’s official acts. It is not a rule of absolute immunity for the
      President regardless of the nature of his acts.”

      As usual, Trump’s lawyers omit essential features of the precedents they cite, in reaching for the brass ring of precedents that might support their client, which always seem to be beyond their grasp.

    • earlofhuntingdon says:

      Trump’s lawyers don’t seem to have remembered Rule 3.3 of the Model Rules of Professional Conduct, which reads in pertinent part:

      (a) A lawyer shall not knowingly:

      (1) make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer;

      (2) fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel;

      They must be over-relying on that last phrase, “and not disclosed by opposing counsel.”

  14. earlofhuntingdon says:

    I used this on an earlier post, but it seems relevant here. In his 1974 pardon of Richard Nixon, who had, of course, already resigned, Gerald Ford noted the procedural future that lay ahead for Nixon, should Ford not pardon him. From the text of his pardon:

    Richard Nixon has become liable to possible indictment and trial for offenses against the United States. Whether or not he shall be so prosecuted depends on findings of the appropriate grand jury and on the discretion of the authorized prosecutor. Should an indictment ensue, the accused shall then be entitled to a fair trial by an impartial jury.

    He’s referencing the Sixth Amendment rights of an accused in a criminal trial. That pardon language would have been vetted by the White House Counsel’s office, the Pardon Counsel, and, almost certainly, by the DoJ. Rather undercuts Lauro’s arguments.

    • SteveBev says:

      The steps which you mention which would have been undertaken, affirm that the grant of pardon and the explanation of necessity for it, were the results of careful executive branch review.

      As I understand it, preservation of the prerogatives of presidential power is a factor to which such officials would be acutely sensitive.

      Though it is for the courts to determine the law, I would have thought that an argument based on this particular executive branch determination not only contradicts Lauro’s argument of 234 years of unbroken practice, but is a persuasive argument in its own right

  15. scroogemcduck says:

    Not squarely on topic, but if Trump was selected as Speaker, how does he get a security clearance? Members of Congress don’t need one, as they are elected, but how would this work with a Speaker who is not a member?

    I can’t see Trump getting a security clearance through normal channels. All the Saudi money and the multiple criminal indictments might make that difficult!

      • earlofhuntingdon says:

        Yea, chatting about nuclear secrets with an “Australian billionaire” at MAL. I It’s not news to Jack Smith. Conveniently for him, such secrets are not within the President’s sole authority to declassify.

        The part about telling the Australian, who has reportedly spread the info to others, about how US subs might sneak up on Russian subs without detection might be of particular concern – and value to Vlad the Impaler. Even the rumor could do irreparable harm to US relations with its allies.

        The context is also important. Not longer into the Biden administration, Australia tore up a $90 billion sub sourcing agreement with France, and agreed to work instead with US and UK providers. It was a hot topic for months; this is only one of many articles about it.

        • Rugger_9 says:

          Yep. Found subs are sunk subs. Also, you’re probably not far off on the sub switcheroo from France to US which has cause no small amount of friction between DC and Paris. While Australia is part of the Five Eyes group, Pratt wasn’t.

          Also, given the general lack of security at M-a-L (remember the PRC spy caught there?) as well as Bedminster, et al the intelligence community must be going nuts now.

          I think SC Smith is somewhat aware of the event, but what this episode definitely shows is that Defendant-1 knew he had classified info and showed it to someone not cleared to have it. IANAL but that sure sounds like mens rea to me.

          Doubtless the defenses will be the ‘immunity’ claim laid out in this post combined with the pixie-dust ‘declassification’ pioneered by Darth Cheney. It will be an article of faith to Defendant-1 and his team that there is no crime here for those two reasons.

        • paulka123 says:

          Why again, is Trump not behind bars awaiting trial? Our national security has taken a massive hit.

        • paulka123 says:

          I am far more sympathetic to a poor person caught up in the CJS who cannot afford bail then a traitorous ex-president sharing our nation’s secrets with any tom, dick or crocodile dundee who also is terrorizing judges, jurors, prosecutors, court staff.

          but, hey, I freely admit my opinion may be in the minority. I expect more adherents to my position after [DELETED BY MODERATOR]

          [Moderator’s note: Do NOT specify acts of violence. Refer to generalities if absolutely necessary but do NOT refer to specific acts of violence. If you need to be reminded again you’ll be banned. /~Rayne 8:49 p.m. ET]

        • Troutwaxer says:

          That’s nonsense. If I’d been caught with as many classified documents as Trump my dog would be in jail – and I would too. My wife, my kids, my neighbors might be in jail too. The only reason Trump’s not in jail is that he can spend more money on a single court appearance than I could spend on my entire defense, plus rich-privilege, white-privilege, and high-ranking politician privilege. Were Trump an ordinary guy, he wouldn’t stand a chance in court!

        • Troutwaxer says:

          From your cite:

          “Winner was arrested two days before The Intercept published the document in June 2017, and within hours of publication, the Justice Department announced she had been charged under the Espionage Act. After more than a year in pre-trial detention, Winner pleaded guilty to the espionage charge.”

          One fucking document. “Nuf said.

        • bmaz says:

          Not sure Reality Winner is a good analogy. And “one fucking document” does not really explain her case.

        • Tedinoz says:

          “Defendant-1 knew he had classified info and showed it to someone not cleared to have it”
          In the case of Pratt, i don’t think that it was a case of Trump showing him classified documents. It was Trump showing off and disclosing information (already in the public domain??) about the US submarines.
          Just billionaire locker room talk.

        • ButteredToast says:

          You are correct that the Pratt episode didn’t involve Trump showing him classified documents. However, the information was described in the ABC report as “sensitive,” which doesn’t sound like it was in the public domain.

        • earlofhuntingdon says:

          No, information on the capabilities of nuclear submarines is not public. It’s among the most secret information in the Navy. Even the shape of their screws, for example, is hidden when they’re docked in San Diego.

          The number of missiles a particular class of sub carries, anything else about them, or how it might find and approach a Russian sub without detection would most definitely not be public.

        • P J Evans says:

          My understanding is that ship’s propellers have to be made/tuned to that particular ship, and replaced as they wear. The Navy would know this. (I know because my father was on a project to figure out how to refurbish worn propellers. His retirement gift from co-workers was one of his drawings, printed and signed by all of them.)

        • earlofhuntingdon says:

          With subs, a key design objective is to make propulsion as quiet as possible. The size and shape of screws is an important component. Even minor changes can sometimes achieve great things.

        • Peterr says:

          How nice, but I can’t help wondering about one thing.

          “. . . so here’s a little gift from all of us, but there’s just one catch: it’s classified, so you can’t show it to anyone.”

        • P J Evans says:

          No – it’s greatly reduce, and has no readable numbers on it. It’s hard to tell what it is, anyway, as it shows contours from both sides at once. (I think the original must have been much larger.)

        • Rugger_9 says:

          There is classified and national defense information (NDI). The presence of either is sufficient to prosecute.

      • rattlemullet says:

        The former president is a Nation Security threat and should be incarcerated until conclusion of the documents trail. Definitely two standards of justice concerning National security breaches.

        • bmaz says:

          No, not necessarily. Nobody not a flight risk ought be detained before conviction, there is too much of that already.

        • Peterr says:

          I agree about flight risks.

          But how would the court look upon the prospect of additional national security revelations at future dinners at Mar-a-Lago? That is a non-trivial concern for the national security community. There are a number of folks who were detained not necessarily because they would flee, but because they would communicate those secrets with others.

        • Rugger_9 says:

          Why would this event not be a basis / probable cause for a thorough search of all the properties (M-a-L ‘annex’ and Bedminster) for all docs and copies in whatever form?

          Even if all that the searches accomplish is the extraction of the docs from the grubby little fingers that would be of great service to America.

        • Peterr says:

          Because the story says Trump “discussed” these things with an Aussie businessman, not that he showed docs around.

          An application for search warrant must show a judge that someone has some *thing* they shouldn’t and that this *thing* can be found at a specific location. A story that Trump has been flapping his lips about national security doesn’t tell a judge that there is this *thing* that can be seized, and so there’s no place to search.

        • bmaz says:

          Yes. The effort to “get” Trump is already out of control. Let us not make searches even worse too.

        • ApacheTrout says:

          In this age of ubiquitous phone cameras, it’s very easy to “discuss” documents that never left the bathroom.

        • Stephen Calhoun says:

          Is it reasonably correct to assume that as of today there is uncertainty about the number of classified/NSD docs that are unaccounted for?

        • timbozone says:

          A more important concept in national secrets is that even though a document may be accounted for, it does not necessarily follow that the contents of the document are still secret.

        • rattlemullet says:

          I agree with your second sentence. My concern is him not being a flight risk, he could run nowhere and not be found, but his uncontrollable diarrhea of the mouth, his narcissistic need to feel important, his obvious lack of respect for the laws of the nation and his secret meetings with Putin during his tenure. In all honesty he probably has done far worse that what’s being reported. As well as being incarcerated it may motivate Cannon to accelerate the documents trial process.

        • Sportingdog says:

          Former members of the military and intelligence community have secrets they could tell that might endanger the country. Need to know policies and counter espionage will help to minimize the overall danger. Nevertheless our enemies do get information and our ability to pivot to manage our affairs can reduce the harmful effects. We should not abandon rule of law to try to keep a hermetic seal on secrets. It’s neither useful nor effective.

        • Robot-seventeen says:

          Yeah.” As if they didn’t know” more than likely. None the less Trump is almost certainly the most dangerous person on Earth. He full well could start a fire to burn everything down and has shown a tendency to do so. For me as soon as he received a firearm should have been good enough. I believe that goes against Federal law. Maybe I’m wrong about that but the nonsense about the Secret Service and the BoP is just that. It’d be the safest place for him and everyone else.

    • zscoreUSA says:

      Interesting point

      Under normal conditions, the President of the United States is required by Title 50 U.S.C. § 3091(a)(1) to “ensure that the congressional intelligence committees are kept fully and currently informed of the intelligence activities of the United States, including any significant anticipated intelligence activity as required by [the] title.” However, under “extraordinary circumstances”, when the President thinks “it is essential to limit access” to information about a covert action, 50 U.S.C. § 3093(c)(2) allows the President to limit reporting.

  16. Amicus12 says:

    The motiont has coherent sentences, citations, quotations, and developed arguments. It looks just like a real pleading.

    But it is surreal. The premise of the motion cannot be reconciled with the foundational principal of constitutional government: that law serves as a check on the unbridled – dictatorial – power of the executive.

    In an ironic bit of borrowing, one might describe the whole thing as doubleplusungood speak.

      • Amicus12 says:

        I appreciate that there is a deadly serious aspect to this. But viewed in some abstract academic sense it’s trash: fancy trash dressing up authoritarianism as very much rooted in the Constitution and history.

        I think there’s a related point worth noting. The deadline for motions to dismiss in the D.C. case is this coming Monday, October 9. Trump has a pending – opposed – motion to extend that deadline. His attorneys waited until quite late to file for an extension and only yesterday filed his reply in support of that request.

        Seeing how his “absolute immunity” motion appears to have been his big gun effort (just going by length and hyperbole) his attorneys are likely hard pressed to meet the Monday. Any other MTDs filed by Monday may well be even worse products (if that is possible).

        This creates yet another interesting decision for Judge Chutkan. If she denies the motion, Trump will likely claim prejudice. But it’s a hole of his own making. It’s going to be an interesting few days.

  17. punaise says:

    Sorry for the OT, but the more pertinent thread is getting a bit long in the tooth. But of course:

    GOP leaders reportedly complicate SF travel plans for Dianne Feinstein funeral

    …30 senators and several members of the House planned to fly from Washington, D.C., to San Francisco to attend the memorial service at City Hall on Thursday. But California Rep. Mike Thompson told KGO that Republican leaders in the House did not allow some of the group to charter a plane to San Francisco, which, according to the outlet, is a courtesy typically extended to lawmakers who wish to honor a former colleague.

    That’s just how they roll.

    • Rugger_9 says:

      Watch Bowtie McHenry gavel the House back into session to impose a Speaker while the 30 are out West. It worked in NC (or was it VA?) as I recall to ram through crappy legislation even though the speaker there promised no votes while Ds were attending something similar.

      • Tedinoz says:

        Yesssss. Good point. And they’ve used the “old fire alarm trick” once this week already so they can’t play that one again.

        In parliamentary systems (well, In Australia at least), the member who will be temporarily absent arranges a “pair” with an opposing political party. So if a vote is called, the “pair” will refrain from voting. It’s a courtesy that ensures sensible management of business. OTOH, I watched ‘what’shisname’ blaming Pelosi for his loss of the Speaker vote the other day (well, it couldn’t have been HIS fault, could it!), and then the booting of Pelosi from her hideaway, so I’m thinking courtesies are not high on the Congressional agenda.

    • earlofhuntingdon says:

      Anything to stick it to the Dems, especially dead ones that can’t fight back, and those who would honor them for service twice as long as that petty snot McHenry has been in Congress.

      Abuse of process and owning the libs is an inadequate description, apart from being confident that the Dems would never fight back in similar ways. It’s about removing them – along with efforts to combat racism, sexism, etc. – from the cultural landscape. It’s not new behavior, but it has metastasized.

  18. DaveVnAz says:

    The title:”Trump Claims Absolute Immunity” should actually be rewritten to “Trump Claims Absolute Impunity”.

        • earlofhuntingdon says:

          I assume the need for Absolut Vodka to flavor the Kool-Aid is analogous to the Boy Scout’s famous camping companion: bug juice. Unless you’re exhausted and parched, it’s not tasty without a non-alcoholic additive.

        • theartistvvv says:

          And here I was, thinking about Cheech appearing before Judge Gladys Dykes.

          https :// www. youtube. com/watch?v=r5h6iE_HD_g

      • ColdFusion says:

        How has he not had a mandatory psych eval yet? Like I want him to stand trial for at least some of his crimes, but gods. He needs a padded room with no key.

        • bmaz says:

          What other people do you want subjected to psych evals? Should I order one for you? How far does this go?

        • Susan D Einbinder says:

          For those of us who are not lawyers, it has and continues to be frustrating, maddening, infuriating, and often completely beyond understanding that one man — who was made fun of by NYers as a loser before he gained national attention on TV – can evade, repeatedly, seemingly endlessly, any – at all – accountability for actions that have so clearly harmed people (separating children from their parents and putting then into ‘jails’ at the border, publicly deriding vets who are disabled… oh, and fomenting an insurrection … the list is endless) … well, from time to time, out of frustration, we may make suggestions that are at best inappropriate and worse, suggest we support a harsher and not-necessarily-above-board action. I mean, it’s seems insane. And that’s why I read EmptyWheel regularly. Posters and moderators are extremely knowledgeable on big and small aspects of the law – far more so than I’ve found on other sites. This website has helped educate me on the law while also exposing its limitations. Please continue to help us non-lawyers understand this stuff.

        • Troutwaxer says:

          The problem for me is not what Trump ‘deserves’ but how much harder than Trump any of us would get getting it if we were in Trump’s place. If any of us were caught with multiple classified documents on our desks (some of us can’t afford home offices) we’d be in jail with no practical ability to get out before trial, and if we talked as crazy as Trump we’d certainly be subject to psych testing.

          It’s not the “get what Trump deserves.” It’s the unfairness and the privilege that motivates the ‘give it to Trump hard and heavy’ talk. We’re not hoping that Trump will get treated ‘unfairly’ we’re hoping that Trump will get treated as we’d be treated under similar circumstances.

        • CoolXenu says:

          It’s the American legal system, which is obviously complete shit.

          [Moderator’s note: Consider yourself liberated to work on Canada’s challenges instead. Have a nice life. /~Rayne]

        • bmaz says:

          The only “complete shit” here is you and your ignorant comments. When you have spent even one minute in the well of an American court, get back to me. Until then, STFU.

        • Rugger_9 says:

          The prosecution cannot order one, although as a delaying tactic after the election is settled I can see the defense raising the issue of insanity to keep Defendant-1 out of jail.

          However, such a defense would keep him out of public life which would crush him completely as an attention whore.

        • earlofhuntingdon says:

          Trump would never ever propose or voluntarily submit to a legitimate, third-party mental competency exam. He’s deathly afraid of the family history of dementia.

        • earlofhuntingdon says:

          I’ll bet that comment read better in the original Russian. Russia is renowned for its abuse of psychiatric treatment to taint the credibility of and to imprison political enemies of the regime.

  19. bloopie2 says:

    I’ve been assuming that the DOJ has various pleadings prepared in advance, in anticipation of Trump motions and arguments, that they could simply tailor and file quickly. I wonder if they saw this one coming.

    • Konny_2022 says:

      I’m certain DOJ was anticipating a motion to dismiss. However, it’s a little bit harder to anticipate the arguments (or should I say “arguments”?) provided in such a motion.

  20. scroogemcduck says:

    So, let’s apply Trump’s logic for a second.

    Biden is President and Commander in Chief. If Biden orders the military to take over the Congress and the Supreme Court by force, that would be within the scope of his authority and therefore an official act covered by absolute presidential immunity.

    Totally legal and totally cool.

    • Ithaqua0 says:

      You forget – Biden isn’t the *real* president; he’s head of a crime family that stole the election! Trump is the *real* president, so he can do all those things!

  21. Konny_2022 says:

    After reading the first 20 or so pages and browsing through the remainder, I can’t believe what I read unter the subheading “Allegedly organizing contingent slates of electors falls within the President’s official duties.”

    Organizing slates of electors, therefore, relates directly to “the rights, duties, and obligations growing out of the constitution itself,” Neagle, 135 U.S. at 64, and thus to the President’s responsibilities. Without contingent slates of electors, there would be no alternative option for the Vice President to certify, rendering futile the President’s entirely legitimate efforts to urge Congress and the states to reconsider evidence of fraud and irregularities. Organization of the slates of electors, in other words, advances two core Presidential functions—protecting the integrity of federal elections, and urging Members of Congress to act in a manner consistent with the President’s view of the public good. Thus, these actions clearly lie within the “outer perimeter” of the President’s “official responsibilities.”

    I feel dumbfounded.

    • P J Evans says:

      It’s given to the states by the Constitution and election laws. It absolutely is not part of the presidential job.

      • Fancy Chicken says:

        And to me this explains why Trump’s attorneys keep throwing out chum in their filings.

        It’s all political; the average MAGAt has no resource like we do here to have knowledgeable people point out Trump team’s misuse of precedent and how they frame the outcome or meaning of past cases.

        So if they even bother to read the MTD they just assume it’s written in good faith and it means what it says. Which if you even bother to dip your big toe in it is immediately obvious that it is legal bum paper.

        But no matter, the political goal is met.

    • Bobby Gladd says:

      For all of you originalist fans out there, two phrases that do not appear anywhere in the constitution: “core function(s),“ and “outer perimeter.“

      • Peterr says:

        This comes from the place where they refer to Youngstown in a footnote, and that’s where the language you cite comes from. It is Jackson *discussing* the constitution and the applications thereof, not quoting from it.

    • P’villain says:

      “Begging the question” is a much misunderstood and misused concept, but I think this passage is a true example of that rhetorical device.

  22. hollywood says:

    The way the cluster of Trump litigation is moving forward and his team’s motions to dismiss are proceeding, it would seem that in the relatively near future Trump is going to need to produce some hefty appellate bonds. Does he have the cash?

  23. Robot-seventeen says:

    Hmmm… Engoron ordered Trump to disclose secret third parties who have an interest in his sundry businesses. Gotta wonder how many Russians are going to fall of that truck.

    • HikaakiH says:

      Well, post-presidency Trump world might have as many or more Saudis floating around in the margins as there have been Russians.
      Trump’s next interesting court attendance is his deposition for his federal civil suit against Cohen, which is scheduled for this Sunday because (checks notes) Trump pinky swore to the federal civil judge that he had to attend every day this week at his NY civil fraud trial. So, the suit against Cohen should be dead in the water before Monday.

      • P J Evans says:

        He dismissed it the evening, without prejudice. *Really* didn’t want to do that deposition, I guess.
        There’s speculation that Cohen might go for fees.

        • Rugger_9 says:

          Given how Michael Cohen feels about Defendant-1 I think he will. ‘Without prejudice’ means D-1 can still revive his suit when conditions favor him, so if I were Cohen I would go for the fees and force a deposition and/or file a cross complaint. I don’t know if NYS has a SLAPP law like CA does, but defamation is always worth a try even if Cohen would be considered a public figure.

    • Tedinoz says:

      “Engoron ordered Trump to disclose secret third parties who have an interest in his sundry businesses”
      I missed that. Do you citation?

      [Welcome to emptywheel. SECOND REQUEST: Please choose and use a unique username with a minimum of 8 letters. We are moving to a new minimum standard to support community security. Thanks. /~Rayne]

      • earlofhuntingdon says:

        Here’s the direct link to Engoron’s Oct. 4th order:

        In his appeal to the Appellate Division, already rejected (except for staying cancellation of the business licenses), Trump complained that a) Engoron’s orders would bind non-party defendants, and b) Engoron was ignorant of even which non-party defendants there were. So how could his holdings bind them? Outrageous! Not at all. In fact, it’s routine, for several reasons.

        Notwithstanding the appointment of Barbara Jones as monitor, Trump still controls the legal entity defendants – and the entities they create and through which they do business. Trump reportedly already has more than 500 of them, and is not yet restricted from forming new ones. He could easily use them to get around Engoron’s rulings, now and in the future.

        Engoron’s order requires Trump to disclose the entities he has and those he creates in future, which are licensed to do business in NY. Trump is, after all, running a business that’s been found liable for fraud and guilty of felony tax crimes. That he might try to hide money and other assets, and otherwise get around Engoron’s rulings, is obvious.

  24. PostToaster says:

    Joyce Vance has an advance article out saying that the point of this motion is to appeal its denial. And that interloculatory appeal will delay the trial while it goes through the appeals court and then to SCOTUS.

        • Scott_in_MI says:

          Ugh. Breaking the link didn’t work quite the way I’d hoped. I’m sure you can figure it out.

          [Moderator’s note: With WaPo and NYT don’t bother unless you’re posting late at night/wee hours Eastern Time Zone. You need to break the [https : //] and add a space after periods [ex: space. com] because they are privileged combinations interpreted by site code as beginning a URL and top level domains. I’ve removed the spaces in your WaPo link. /~Rayne]

      • SteveBev says:

        “If this is Trump’s legal team’s best shot, it’s likely to be a swing and a miss, at least in the district court. Trump filed a motion to dismiss the criminal prosecution based on “presidential immunity.” It’s not a frivolous argument, but it’s a flawed one. Leaving the merits of the argument aside for the moment, Trump’s lawyers’ endgame here is to posture the motion so they can take an appeal in advance of trial, an “interlocutory” appeal, if Judge Chutkan denies their motion. That would delay the trial during the time the appeal took. So, unless the Court of Appeals for the District of Columbia, and the U.S. Supreme Court are prepared to move extremely fast, this motion could mean the trial wouldn’t occur before the Republican nominating convention or even before the election itself. The best we can hope for if this happens is that the courts, appreciating the significance of the moment, will act speedily.

        …immunity issues are one species of issue that are different, and there is substantial case law supporting an interlocutory appeal here. In Nixon v. Fitzgerald, the Supreme Court noted that the Court had twice permitted defendants to take an interlocutory appeal where a claim of absolute immunity was denied. They also noted that “in previous cases the Court of Appeals for the District of Columbia Circuit also has treated orders denying absolute immunity as appealable (on an interlocutory basis).”

        Aside from the pure value of delay for Trump here, there is a core conservative ideological principle at stake here that Trump’s Federalist Society lawyers may hope will gain traction with the Court. That’s the conservative view that it’s desirable to expand the powers of the presidency at the expense of the other two branches.”

        [FYI – blockquote tags added to ensure community members note all this text is excerpted from Joyce Vance’s essay, and an ellipse added to indicate a paragraph and sentence has been broken. This is an extremely long excerpt which flirts with abusing Fair Use of copyrighted material; please be sensitive to copyright. /~Rayne]

        • SteveBev says:

          Apologies to Rayne
          1 for the formatting – I have caused you unnecessary work
          2 re fair use issue – I wanted to do justice to her argument
          But I can see that it would have been better to have written a paraphrase inserting judiciously selected quotes rather than a long quote edited for brevity.
          I will try to do better.

        • Rayne says:

          I am currently cleaning up your other massive comment with Nixon v Fitzgerald excerpts. *gritting my teeth*

          Moderators are not secretaries; I am doing this to keep the comments moving and to help the community make sense. But this is the last time I should have to insert blank line returns and blockquote tags to assist you. You should keep in mind how many readers here on on mobile devices with small displays for whom large blocks of text are challenging; they may rather scroll by than read your efforts if you can’t find a way to be more concise and format for readability.

          ADDER: I’ve also added a link to Nixon v Fitzgerald; community members here are strong readers and might have been better served by pointing to the case with a link and then discussing the contents rather than publishing a total of 821 word as an excerpt.

        • SteveBev says:

          Again apologies

          I do take on board the criticism. You are absolutely correct that it should not be for you to edit over long quotes.

      • chum'sfriend says:

        [Link deleted]

        [Moderator’s note: Please do NOT share a link to an email inside your own account; this is not permitted for privacy and security reasons. Take a screenshot, host the image on a safe site like a blog or microblog, and then share a link to that image. You’ll stand a better chance getting that published here. /~Rayne]

    • John Herbison says:

      I don’t know what would authorize interlocutory review of a district court order denying a motion to dismiss an indictment. There is no final decision under 28 U.S.C. § 1291, and interlocutory review is not authorized by 28 U.S.C. § 1292.

      The collateral order doctrine in criminal cases is quite limited. Flanagan v. United States, 465 U.S. 259 (1984). Perhaps Trump is hoping that SCOTUS will create a new exception to the final decision requirement.

      • SteveBev says:

        Joyce Vance’ argument noted above cites to Nixon v Fitzgerald

        Which deals with the matter at 457 US 473, 474

        “Under the “collateral order” doctrine of Cohen v. Beneficial Industrial Loan Corp., 337 U. S. 541 (1949), a small class of interlocutory orders are immediately appealable to the courts of appeals. As defined by Cohen, this class embraces orders that

        “conclusively determine the disputed question, resolve an important issue completely separate from the merits of the action, and [are] effectively unreviewable on appeal from a final judgment.”

        Coopers & Lybrand v. Livesay, 437 U. S. 463, 437 U. S. 468 (1978); see Cohen, supra, at 337 U. S. 546-547. As an additional requirement, Cohen established that a collateral appeal of an interlocutory order must “presen[t] a serious and unsettled question.” 337 U.S. at 337 U. S. 547. At least twice before, this Court has held that orders denying claims of absolute immunity are appealable under the Cohen criteria. See Helstoski v. Meanor, 442 U. S. 500 (1979) (claim of immunity under the Speech and Debate Clause); Abney v. United States, 431 U. S. 651 (1977) (claim of immunity under Double Jeopardy Clause). In previous cases the Court of Appeals for the District of Columbia Circuit also has treated orders denying absolute immunity as appealable under Cohen. See Briggs v. Goodwin, 186 U.S.App.D.C. 179, 227-229, 569 F.2d 10, 58-60 (1977) (Wilkey, J., dissenting on the appealability issue); McSurely v. McClellan, 172 U.S.App.D.C. 364, 372, 521 F.2d 1024, 1032 (1975), aff’d in pertinent part en banc, 180 U.S.App.D.C. 101, 107-108, n. 18, 553 F.2d 1277, 1283-1284, n. 18 (1976), cert. dism’d sub nom. McAdams v. McSurely, 438 U. S. 189 (1978).

        In “dismissing” the appeal in this case, the Court of Appeals appears to have reasoned that petitioner’s appeal lay

        Page 457 U. S. 743

        outside the Cohen doctrine because it raised no “serious and unsettled question” of law. This argument was pressed by the respondent, who asked the Court of Appeals to dismiss on the basis of that court’s “controlling” decision in Halperin v. Kissinger, supra.
        Under the circumstances of this case, we cannot agree that petitioner’s interlocutory appeal failed to raise a “serious and unsettled” question. Although the Court of Appeals had ruled in Halperin v. Kissinger that the President was not entitled to absolute immunity, this Court never had so held. And a petition for certiorari in Halperin was pending in this Court at the time petitioner’s appeal was dismissed. In light of the special solicitude due to claims alleging a threatened breach of essential Presidential prerogatives under the separation of powers, see United States v. Nixon, 418 U. S. 683, 418 U. S. 691-692 (1974), we conclude that petitioner did present a “serious and unsettled,” and therefore appealable, question to the Court of Appeals. It follows that the case was “in” the Court of Appeals under § 1254 and properly within our certiorari jurisdiction. [Footnote 23] “

        And the Flanagan decision notes the collateral order exception applies albeit with utmost strictness in criminal cases

        465 US 266, 267
        “Because of the compelling interest in prompt trials, the Court has interpreted the requirements of the collateral order exception to the final judgment rule with the utmost strictness in criminal cases. The Court has found only three types of pretrial orders in criminal prosecutions to meet the

        Page 465 U. S. 266

        requirements. See United States v. Hollywood Motor Car Co., 458 U.S. at 458 U. S. 265. Each type involves “an asserted right the legal and practical value of which would be destroyed if it were not vindicated before trial.'” Id. at 458 U. S. 266 (quoting United States v. MacDonald, supra, at 435 U. S. 860).

        An order denying a motion to reduce bail may be reviewed before trial. The issue is finally resolved and is independent of the issues to be tried, and the order becomes moot if review awaits conviction and sentence. Stack v. Boyle, 342 U. S. 1 (1951). Orders denying motions to dismiss an indictment on double jeopardy or speech or debate grounds are likewise immediately appealable. Such orders finally resolve issues that are separate from guilt or innocence, and appellate review must occur before trial to be fully effective. The right guaranteed by the Double Jeopardy Clause is more than the right not to be convicted in a second prosecution for an offense: it is the right not to be “placed in jeopardy” — that is, not to be tried for the offense. Abney v. United States, 431 U. S. 651 (1977). Similarly, the right guaranteed by the Speech or Debate Clause is more than the right not to be convicted for certain legislative activities: it is the right not to “be questioned” about them — that is, not to be tried for them. Helstoski v. Meanor, 442 U. S. 500 (1979). Refusals to dismiss an indictment for violation of the Double Jeopardy Clause or of the Speech or Debate Clause, like denials of bail reduction, are truly final and collateral, and the asserted rights in all three cases would be irretrievably lost if review were postponed until trial is completed.”

        It seems likely to me (as a distant observer simply looking at the cited cases) that the ambit of presidential immunity, albeit not referred to in Flanagan, is the sort of question even in the criminal context which properly falls to be considered within the collateral order exception

    • Ebenezer Scrooge says:

      I am not a criminal lawyer. But it seems to me that the real issue is not with the right to interlocutory appeal, but whether it is accompanied by a stay. No stay; no delay. And the appeal would be weak on the merits, even if it is allowed.

      • Robot-seventeen says:

        Can’t they just ignore it? Seems to me they have no requirement to even bring it up. Let it fester..

    • Marc in Denver says:

      Would the pre-trial process necessarily be stayed pending appeal, or would the circuit court or SCOTUS have to grant a stay pending an interlocutory appeal? And if it were discretionary, how likely would it be, I wonder?

      • bmaz says:

        Nobody knows for sure. Would not worry much about interlocutory appeals, they are very much not favored. We shall see.

  25. scroogemcduck says:

    Just for fun, what is the most outrageous criminal act you can think of that a President could commit, and yet be immune from prosecution under Trump’s “presidential immunity” theory?

    Bonus – can anyone think of a criminal act that clearly wouldn’t fail within the scope of his bananas immunity claim?

    • Glen Dudek says:

      How about the proverbial shooting someone on 5th Avenue who he claimed was a danger to the country? I sure hope he Takes Care(ful) aim.

    • ExRacerX says:

      Since cases dismissed without prejudice can technically be refiled, that lie falls among tfg’s semi-plausible prevarications, but yeah, I won’t be holding my breath.

    • earlofhuntingdon says:

      LOL. That’s for the peanut gallery. He did no such thing. He dismissed his suit.

      Trump may attempt or threaten to file, dismiss, refile, ad nauseum – a tactic intended to dissuade others from suing him – unless and until the court dismisses with prejudice and sanctions him and his attorneys for vexatious litigation. Or he runs out of money.

    • Ebenezer Scrooge says:

      My read of Rule 41 is that he cannot dismiss the suit unilaterally. He must get court permission. Why would a court grant permission if Trump states that he is dismissing the suit temporarily only to wriggle out of a deposition?

      • earlofhuntingdon says:

        Trump probably didn’t tell the appeals court he intended to refile. There are legitimate reasons to do that, but they are probably not among Trump’s reasons to do so. He’s a lifelong abusive litigant; in that regard, he’s a Dickensian caricature.

        And, yea, my first thought is that he’s doing this to avoid sitting for a deposition. He’s a terrible witness. These days, he incriminates himself at every turn. And now is not a good time to do that.

        • theartistvvv says:

          I know not the specifics of his right to refile the subject case from a voluntary dismissal without prejudice, but in IL it is as of right if done within one year of the dismissal (although it is possible to attempt to vacate a dismissal within 2 years of same, but that is much more difficult). In the event, he buys himself that time before starting to prosecute the case over (to some extent but at least in part continuing) – which might be less distraction and useful for his campaign or for more mundane things such as, doncha’s know, defending in other cases.

      • Attygmgm says:

        Under Federal Civil Procedure Rule 41 a dismissal can be unilateral and by right if it is “before the opposing party serves either an answer or a motion for summary judgment,” which is the case on the docket of Trump’s case v Cohen. Bmaz is likely correct that it won’t be re-filed. But until the limitation period runs it could be re-filed, in theory.

  26. Leu2500 says:

    Per Joyce Vance, this may be a means to an end. When Chutkan denies this, Trump doesn’t have to wait for the end of the trial but can appeal immediately. & if he loses the appeal then he can appeal to SCOTUS. And we all know how long appeals can take. & Trump gets his delay.

    [Welcome back to emptywheel. SECOND REQUEST: Please choose and use a unique username with a minimum of 8 letters. We are moving to a new minimum standard to support community security. With only (102) published comments at this site to date, you will not be grandfathered to keep your existing username. Thanks. /~Rayne]

    • earlofhuntingdon says:

      Probably not much of a delay. If Chutkan rejects this motion, it’s improbable that the DC Circuit would overturn her. The motion badly abuses and miscites precedent for, at best, an arguable proposition. The motion is unpersuasive for such a weighty issue.

      More importantly, I don’t think the Supremes would accept cert. It’s not argued sufficiently for them to dismiss at this point, not that that has dissuaded them before. If the Trump majority is inclined to “free Trump,” I suspect it would prefer a stronger foundation at a different time.

        • earlofhuntingdon says:

          In a heartbeat. The hard work will be writing the rejection with sufficient restraint, when critiquing a motion almost certainly written in bad faith. Ditto with the DC Circuit. The Supremes, meh.

      • sohelpmedog says:

        I think that except – perhaps – for Thomas and maybe Alito – the Court has not much to gain by “free[ing] Trump.” They didn’t help him after the 2020 election. In fact, they likely don’t want the additional outrage (Dobbs, ethics) that helping him might get them. They no longer need him to carry out their agenda. “The petition for a writ of certiorari is denied. “

      • PostToaster says:

        IANAL. For clarity let’s leave out whether or not Chutkan will deny this, and just assume she does.

        It sounds like you’re saying that it probably won’t be much of a delay because the appellate court will probably move fast and Supreme Court will probably quickly refuse to hear it.

        That seems to be Vance’s “best case” outcome ie not probable.

        Is this a surprise not seen coming? Curious as to why I haven’t seen it even mentioned by the main pundits, in oceans of discussion.

        But mainly trying to gauge how much xanax to request on my next re-up.

    • John Herbison says:

      Regarding Joyce Vance’s prediction, what federal statute would authorize an interlocutory appeal by a criminal defendant from an order declining to dismiss an indictment on the grounds Donald Trump has asserted? See United States v. Hollywood Motor Car Co., 458 U.S. 263 (1982)..

  27. Rwood0808 says:

    O/T and looking down the road several months:

    Let’s say trump loses, both the election and the court cases, bigly.

    What then?

    Sooner or later it’ll get through the combover and he’ll realize that he’s indeed on his way to prison, and at that point will come the bargaining. By this time the courts have already taken his money, his business, his freedom, and his future, so what does our little-hand-man have left to bargain with?

    One thing that the press covering New York case skips over is how trumps empire is basically a giant money-laundering machine. One that favors the ruble.

    Will trump reveal everything he knows about his Russian money-laundering operations in return for staying out of prison? If so, how long do you think his boss will let that go on before we’re all tuning in to live coverage of the smoking hole in the ground that was once trumps 757, or perhaps watching footage of a hazmat team entering what was once trump tower in search of polonium?

    I have to assume that Putin is watching closely.

    • BobBobCon says:

      I would not be surprised if there is Russian money laundering in his portfolio, but I would also bet it’s not a huge share overall. He’s into all kinds of shady stuff from all over.

      Which could mean he doesn’t have as much to flip on Putin as he might like.

      I think the Australian sub fiasco underlines that Trump is a risk in a ton of different oddball directions besides just direct Putin dealings. And I’d be awfully curious how they keep him from telling any more random people critical intel. I’m not sure there’s any reason to trust him and there will need to be some kind of ongoing monitoring for life.

      • Rwood0808 says:

        If there are Russian fingers on trump org I think we’re about to find out.

        Reading page two of Engoran’s latest ruling and my non-lawyer interpretation is that every business partner the trump org has is about to be named. Will this be public?

        If so we’re about to see just how much of trump org is indeed owned by trump-ilk.

        • BobBobCon says:

          There’s plenty of reason to say he’s dealt with people in Putin’s orbit, but I also suspect he’s got deals twelve different ways with Saudis, Chinese, Turks, and probably a whole bunch of people from places like Panama, Singapore, Cyprus. Plus of course the Americans.

          Once you divide the real value of his operations among all of the different interests, I think there’s good reason to doubt one in particular is such a big percentage. He may have criminal exposure from a number, but I’d be cautious about predicting how much from any one in particular.

        • Rwood0808 says:

          I’ll certainly agree with you there. It’s going to be a long list when we get to see it.

          I have wonder, when this is over will there be anything left that the feds might want that trump could bargain with? Outlook not so good.

    • Ebenezer Scrooge says:

      I note that Chris Kise (the big-name lawyer on this Trump case) kept his name off the motion. I suppose that there are some things that even the Chris Kises of the world will not do.

    • Scott_in_MI says:

      Which appears to consist of a ~35-page argument in support of a stay of Justice Engoron’s order pending Trump’s appeal, followed by the entire documentary record of the proceedings thus far. I don’t know if that’s a required or normal submission for appeals in NY state (or anywhere; IANAL).

      • earlofhuntingdon says:

        Appeals courts usually demand the full documentary record of the case below. The requirement would be statutory, since statutes are what create and empower appeals courts.

      • bmaz says:

        Appellate courts pretty much always have the transmitted record. Blithely attaching it, as appears to have been done, is the work of idiots.

        • earlofhuntingdon says:

          I wonder if they violated court rules in doing that. Pity the clerks have to slog through that shit. It’s as if Trump’s lawyers were making the process as hard and as long as possible.

        • earlofhuntingdon says:

          Trump’s parking lot lawyer seems to think it reprehensible that Engoron’s order covered non-party defendants – that are owned and controlled by defendant legal entities. LOL.

          That portion of Engoron’s order seems routine and necessary. Otherwise, defendants could avoid the substance of his order by transferring assets to subsidiaries controlled by defendants outside of NY and carrying on business through them, without changing how they do business.

        • Molly Pitcher says:

          bmaz, how does Engoron verify the information about Trump’s LLCs ? Give the dearth of truth associated with all of the Trumps, how does he find out who is left off the list the attorneys turn in ?

        • earlofhuntingdon says:

          The court would require an audit by qualified accountants. The receiver, if appointed, would act on behalf of the court, as owner, meaning it would not have to work through the current owners or management.

        • earlofhuntingdon says:

          They also characterize Engoron as not comprehending “the scope of the chaos its decision” will cause.

          Their real complaint is that Engoron understands exactly what his order would do. He issued it because he found overwhelming evidence that defendants committed serious pervasive fraud for years, they are absolutely unrepentant, and are such a hazard to the marketplace that they should be shut down.

        • P J Evans says:

          Receivers are unlikely to do a shutdown immediately. They have to obey the laws, after all, and that includes notices and severance pay.

        • earlofhuntingdon says:

          Oh, it will be an orderly shutdown and by the book. It could easily take years to catalogue all the relevant entities owned and controlled by the known defendants, all the parties they’ve contracted with – on and off the books – give notice to creditors and receive responses (probably six months alone), determine the legit ones and pay them, liquidating sufficient assets to do so, and finding qualified buyers for all assets.

          First off would be a complete audit, I should think. The court, which owns the assets in a receivership, will want a reliable picture of the business it acquired. That’s necessary in order to sell assets, determine creditors, etc., as well as to defend against the inevitable Trump claims.

          The cost of the latter would be paid for out of receivership assets, meaning by the Trumps. Once a receivership is in place and survives appeal, Trump would be robbing himself to fight it. LOL.

        • earlofhuntingdon says:

          The Appellate Division has already replied to Trump. It granted an interim stay of the cancellation of the defendants’ business licenses. His other requests were “denied in all other respects.”

          That allows these companies to continue to transact business, but the monitor and her authority in place. The trial on the six remaining counts continues. Sad.

        • earlofhuntingdon says:

          I don’t think the Guardian is correct here:

          On Friday it stayed Engoron’s order to provide the court with a list of Trump businesses in the state, all of which would be dissolved under his ruling.

          The appeals court’s ruling only stays cancellation of the certificates:

          “Defendants’ application for an interim stay of enforcement…is granted solely to the extent of staying enforcement of Supreme Court’s order directing the cancellation of business certificates. The interim application is denied in all other respects.”

          That does no stay the trial or other orders, such as providing Engoron with a list of the legal entities owned or controlled by the defendant legal entities, the names of proposed receivers, and the existence and authority of the monitor and defendants’ obligation to cooperate with her.

        • earlofhuntingdon says:

          Trump’s lawyers whine at length about the consequences of Engoron’s order. But they ignore why he is imposing those consequences: he found defendants liable, in a bench trial, for persistent fraud.

        • Peterr says:

          I’m struck by the odd language on page one of the form attached to the motion, where they summarize what they are appealing:

          Provisions of [x] order appealed from: decretal paragraphs purporting to (1) cancel the business certificates of multiple entities, including non-parties, and (2) appointing an independent monitor to dissolve those entities.

          The word “purported” is completely out of place here. The order does not “purport” anything. It demands things, it requires things, and it mandates things. You can appeal what it demand, requires, and mandates, but there nothing “purported” about that order.

          [Maybe they are just stuck on that word “purported” because they’ve been using it so often with respect to those fake electors. But I digress.]

          Similarly, the word “monitor” is out of place as well. There already *is* a monitor, and has been for some time. What this order calls for is the appointment of a RECEIVER, who would not only monitor the day-to-day workings of the entities in question, but take steps to dissolve them. And if they are going to appeal the appointment of the monitor, it seems to me they should have done that months ago.

          IANAL, but let me offer a pro tip anyway: if you are going to appeal something, you damn well better get the wording right.

        • earlofhuntingdon says:

          Yea, precise use of language, assuming he is capable of it, would seem to defeat defense counsel’s purpose. He mistreats facts and the law the way he mistreats precedent.

          They use “purported” to be derogatory and to undercut the legal effect of Engoron’s ruling, but don’t want to say what that ruling is. For the same reason, they refer to “monitor” instead of receiver. He doesn’t really want to address whether Engoron, in a bench trial, has authority to appoint one and why.

          Defendant isn’t contesting these specific consequences so much as trying to attack collaterally Engoron’s ruling on the merits, which found defendants liable as a matter of law.

        • Peterr says:

          Disrespecting a judge who is still sitting in judgment on additional charges against your client, as well as the setting of damages on the first charge, strikes me as a bad legal strategy.

        • earlofhuntingdon says:

          The only thing that would explain it to me is defendant’s assumption that he’s already lost, so his best bet is baiting the court into making an error suggesting bias. Referencing a Monty Python skit doesn’t qualify.

  28. Frank Probst says:

    OT sort of: Looks like Ken Chesebro’s having a bad day. Rawstory is saying that in his latest ruling against Chesebro, Judge Scott McAfee referenced the parrot from Monty Python.

        • earlofhuntingdon says:

          It reads, in part, “The Court appreciates Defendant Chesebro’s recognition that he filed this motion outside the case scheduling order deadline, but will allow an exception and address the merits due to the representation that he only recently obtained the necessary records, and because the motion is so easily dispatched.”

        • Peterr says:

          Says the court, yes, you filed the motion late, but we’ll allow you an extension “because the motion is so easily dispatched.”

          That’s either because you are so obviously right or so obviously wrong. The “if this parrot is somehow not yet dead” language is kind of a giveaway as to which one of these obvious conclusions is correct.

      • Robot-seventeen says:

        Gotta be top five in orders by judges.
        “And if this parrot of a motion is somehow not yet dead,” McAfee wrote, “the Defendant has failed to establish how Special ADA Wade’s actions resulted in prejudice, i.e., how his assignment singlehandedly changed any specific actions taken during the investigation or resulted in the true bill of indictment.”

    • earlofhuntingdon says:

      McAfee dispatches this motion so effortlessly, adding a few snarks from popular culture to deride defendant’s effort, one might suspect the underlying motion was frivolous, intended only for delay.

      Kitchen sink efforts by defense counsel are necessary, but it’s more fun reading them when there’s a little meat on the bone. This one was picked clean some time ago.

      • Peterr says:

        Frivolous motions are bad at any time, but I would think they are worse at the outset of judicial proceedings, because it sets a tone for the judge that says “these people are not serious.”

  29. David F. Snyder says:

    “Standing in the sun,
    Idiot savant.
    Something like a monument.”
    (from “Dinosaur” by King Crimson).

    OT: Cannon just (temporarily) stayed the CIPA section 4 hearing until considering Kise’s motion filed for delay until after the 2024 election.

    • Knowatall says:

      “Elephant Talk” (by same):

      Talk, it’s only talk
      Arguments, agreements, advice, answers
      Articulate announcements
      It’s only talk

      Talk, it’s only talk
      Babble, burble, banter, bicker bicker bicker
      Brouhaha, balderdash, ballyhoo
      It’s only talk
      Back talk

      Talk talk talk, it’s only talk
      Comments, cliches, commentary, controversy
      Chatter, chit-chat, chit-chat, chit-chat
      Conversation, contradiction, criticism
      It’s only talk
      Cheap talk

      Talk, talk, it’s only talk
      Debates, discussions
      These are words with a D this time
      Dialogue, dualogue, diatribe
      Dissention, declamation
      Double talk, double talk

      Talk, talk, it’s all talk
      Too much talk
      Small talk
      Talk that trash
      Expressions, editorials, expugnations, exclamations, enfadulations
      It’s all talk
      Elephant talk, elephant talk, elephant talk

        • theartistvvv says:

          Crimson, Bowie, and later NIN all made use of him – he’s a native of Champaign, IL and I saw him ia few times in the bars there when I was in school in the 80’s.

          Not shredding, mind, nor even playing, but there nonetheless doin’ what one does.

        • gruntfuttock says:

          Belew also played for Zappa: Sheik Yerbouti and some live stuff. I can’t remember if he’s included in the You Can’t Do That on Stage sets or not – I’ll have to go and listen to them again!
          He also worked with Talking Heads and did lots of solo stuff which I really should check out. That man is amazing :-)

        • missinggeorgecarlin says:

          I saw him at the Capitol Theater in Clearwater, FL about 2 years ago. He definitely still “has it” and I recommend anybody who hasn’t heard his song “I Am What I Am”, give it a listen.

      • earlofhuntingdon says:

        The 11th Circuit is conservative and Cannon’s error(s) have to be egregious to be reversible. Hard to establish in the early rounds.

        • ExRacerX says:

          This is the Central Scrutinizer
          That was Donald’s 73rd confrontation with the law
          Naturally, Judge Cannon was easy on him
          One of her friendly counselors gave him a donut
          And told him to stick closer to church-oriented social activities

  30. Matt Foley says:

    Trump’s not stupid. He doesn’t need to be speaker; it’s easier for him to work the Jordan puppet remotely. Plus he’d never be able to cope playing third fiddle to Harris and Biden.

    • fatvegan000 says:

      I think the real reason is that he doesn’t have the stamina.

      No way he could make it even one entire day moving around the House, let alone even walk to the chamber from the transport- and he knows it.

  31. WilliamOckham says:

    Is it just me or do Trump’s latest filings (in his various cases) sound like they were written by an LLM (Large Language Model), just on that’s better than ChatGPT? His lawyers don’t make up citations like ChatGPT did; they just use them as a source of pull quotes, whether or not the cases have anything to do with the matter at hand. I know that Lauro, et. al., aren’t using an LLM, but only because none of them are that good yet.

    However, I think we now have an adequate Turing test for LLMs. If they can produce a legal brief indistinguishable from one of Trump’s.

    • Rayne says:

      I have wondered at what point Team Trump would employ ChatGPT to make up content for motions because it was cheaper and faster than actual human attorneys and paralegals. AIs work doesn’t have to be good, just plentiful.

      • algebraist says:

        Didn’t some attorney actually recently do that? Then got caught very quickly and just as quickly censured?

        • theartistvvv says:

          Two in NY, sanctioned $5k each.

          https :// www. natlawreview. com/article/artificially-unintelligent-attorneys-sanctioned-misuse-chatgpt

          [Moderator’s note: Please use blank spaces to deactivate links — see above for optimum location. /~Rayne]

        • Rayne says:

          Yeah, but they didn’t check the citations the AI generated. A more savvy attorney would ask for an argument based on specific precedents and not let AI pull one out of the LLM ether.

  32. dopefish says:

    Judge Chutkan’s recent order granting in part and denying in part 2 of Defendant Trump’s recent motions (62 Motion for Access to CIPA §4 Filing and An Adjournment of the CIPA § 5 Deadline, and 63 Motion for Extension of Time to File Pretrial Motions).

    I’m not a lawyer but this paragraph read to me like a subtle dig at the quality of the arguments Trump’s team has been making in their filings:

    Second, the court will nonetheless permit the defense to file objections to the ex parte
    nature of the government’s CIPA § 4 motion. CIPA Motion at 2–3. The D.C. Circuit has
    emphasized that in this context, “since the government is seeking to withhold classified
    information from the defendant,” adversarial litigation over that information “would defeat the very purpose of the discovery rules.” United States v. Mejia, 448 F.3d 436, 457 & n.21 (D.C. Cir. 2006). Still, the court will allow the defense an opportunity to explain why it believes that CIPA’s statutory text and Circuit precedent do not govern this case. The court will require any brief articulating such objections to be filed by October 11, 2023. The government may file any response to those objections by October 18, 2023.

  33. hollywood says:

    Wow, Cannon fires again. She must be playing the long game in which Trump gets to dodge convictions until after the election. Then, she might get a reward.

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