Today there is active news in four different legal fronts involving Trump.

First: There is reporting that Judge Engoron’s decision in the Trump Org fraud trial is very likely to be issued tomorrow.

Second: As I had predicted, it only took Special Counsel Smith one day out of the seven allotted to him to submit a 40-page response to SCOTUS regarding Trump’s request for a stay of the D.C. Circuit’s denial of his interlocutory appeal. Trump’s reply brief was then submitted today; three briefs in three days, that’s the shadow docket for you. SCOTUS has a conference already scheduled for tomorrow, and some court-watchers are speculating that Smith was seeking to get his brief submitted early enough that the case could be added to the agenda for that conference.

Third: Today New York State Judge Juan Merchan denied Trump’s motion to have the state felony charges in the hush money case dismissed, and confirmed March 25th as the trial date. This trial is expected to last for six weeks.

Lastly we have Georgia, which I haven’t talked about until now, so some context is necessary.

When Special Counsel Smith made his federal charging decisions regarding Jan 6th, he intentionally took a very streamlined path: Trump was the only person named in the indictment, although six unnamed unindicted co-conspirators were noted and are generally believed to include both Rudy Guliani and former chief of staff Mark Meadows.

However, much of the conduct relating to Jan 6th, such as Trump’s famous call with Georgia Secretary of State Raffensberger, also ran afoul of state statutes, particularly in Georgia. As a result the Fulton County District Attorney, Fani Willis, also launched an investigation. She chose a very different and expansive prosecutorial path than Smith, resulting in Georgia RICO charges being filed against 19 defendants, including Trump and Guliani and Meadows.

The existence of the Georgia Jan 6th case has been considered important by many, due to the fact that if Trump wins election in 2024 then he could make the DOJ dismiss all federal indictments against him (and/or pardon himself if any convictions had occurred), but he can’t do the same with respect to state charges. However, many pundits felt that the Georgia case was so complex that a trial before the 2024 election was unlikely to occur, notwithstanding Willis’ protestations to the contrary. Moreover, it is at best unclear whether a state prosecution of an individual could continue if that defendant were to be elected President.

However, in recent weeks an unforeseen obstacle has arisen, related to Willis’ own personal conduct. Without getting into lurid details, it is conceivable that Georgia State Judge Scott McAfee could rule that Willis has a conflict of interest that would disqualify her and her office from continuing to prosecute the case. In that event, a new prosecutor would need to be assigned, which might delay the trial significantly. Today, Willis herself had to testify about the timing and nature of her alleged romantic relationship with the lawyer she had hired to manage the prosecution of the case.

It has yet to be a particularly eventful week, but there have been an accumulation of minor political and legal developments to memorialize.

There was a by-election tonight in New York’s 3rd District, in northern Long Island. This district has the fourth-highest average income of any US Congressional district, but even so when it flipped to the Republicans in the 2022 midterms that was a surprise. The then-incumbent, moderate Democrat Tom Suozzi, had decided to instead run (unsuccessfully) in the Democratic gubernatorial primary. Facing an open seat, the Republicans ran an appealing young Republican who had never before held office but had lost 44-56 to Suozzi in 2020, a Brazilian immigrant named George Santos. This time Santos won, 54-46.

Of course, it was only after the election that the national media made any attempt to dig into the background of Representative Santos, rapidly discovering he was a serial fabulist: Almost nothing he had claimed about his background, or reported on campaign finance paperwork, turned out to be true. Despite this, with the House Republican majority as narrow as it was and with the seat likely to flip back to the Democrats without Santos, it took almost half of his term before the House finally expelled him on ethics charges. Suozzi then announced he would run for his old seat back. As of this writing the election has been called for Suozzi, who is leading 54-46 with 84% of the vote in.

With the Democrats about to gain a seat, the House Republicans made a second attempt today to impeach DHS Security Mayorkas, and this time they had the votes: Representative Scalise returned to D.C. after a six-week absence due to cancer treatment, casting the deciding vote for the first-ever impeachment of a Cabinet secretary, 214-213.

Yesterday was the deadline imposed by the D.C. Circuit for Trump to make a request that SCOTUS stay its decision denying his interlocutory appeal in the Jan 6th federal, or else Judge Chutkan would have been allowed to unpause the proceedings. He filed his brief yesterday, and today Chief Justice Roberts asked Special Counsel Smith to reply within the week; I strongly suspect that reply will get filed tomorrow. Two amicus briefs were filed today, both opposing Trump’s request for a stay; one of the briefs is from a long list of former Republican officials, headed by former Senator John Danforth, but also including Michael Luttig and George Conway.

No further news yet from SCOTUS on Trump v. Anderson, or from Judge Engoron.

While I was organizing my thoughts on the Trump v. Anderson oral arguments, there were meaningful developments in another legal matter involving a presumptive 2024 Presidential candidate – except this time the matter involves President Biden.

Some context to start:

So far, in this series of posts that I started a few weeks ago, I have yet to mention the “Mar-a-Lago documents case”. This is one of two federal criminal cases styled U.S. v. Trump, both brought by Special Counsel Jack Smith; the other is what I’ve been calling the “Jan 6th federal case”, the case in which this week the D.C Circuit denied Trump’s interlocutory appeal on presidential immunity. That case is being heard by a D.C.-based federal judge, Chutkan; the Mar-a-Lago version of U.S. v. Trump is being heard by a Florida-based federal judge, Cannon.

The meat of the case before Judge Cannon is that, allegedly (but with no apparent shortage of compelling evidence), after leaving the White House Trump not only brought dozens of boxes of government documents inclusive of highly classified material to his semi-public compound at Mar-a-Lago, but also obstructed justice when the government asked for those documents’ return.

While investigations into Trump’s mishandling of classified documents were underway, lesser numbers of classified documents were also found a little more than a year ago at the homes of the two most recent Vice-Presidents, Pence and Biden. Several weeks after Attorney General Garland had appointed Jack Smith as a Special Counsel to lead the Trump investigations, and shortly after the news broke of classified documents being found at Biden’s home, Garland appointed a second Special Counsel in January 2023 to lead the investigation of Biden’s handling of documents. That Special Counsel, Robert Hur, had been an appointee in the Trump DOJ.

Hur had sent his final report to Garland on Monday, but news of it didn’t break until today when Garland sent a letter accompanying that report to Congress. The report’s conclusion is that no federal charges are warranted.

However, one paragraph in the 350+ page report is kicking up a firestorm and attracted a two-page rebuttal from Biden’s counsel in an appendix to the report. In a subsection called “For other reasons, a jury will be unlikely to unanimously convict Mr. Biden” Hur writes:

“Mr. Biden will likely present himself to the jury, as he did during his interview with our office, as a sympathetic, well-meaning, elderly man with a poor memory. While he is and must be accountable for his actions–he is, after all, the President of the United States–based on our direct observations of him, Mr. Biden is someone for whom many jurors will want to search for reasonable doubt. It would be difficult to convince a jury they should convict him–by then a former president who will be at least well into his eighties–of a serious felony that requires a mental state of willfulness.”

This, of course, plays right into one of Trump’s major campaign themes, namely the purported cognitive impairment of the man he frequently calls “Sleepy Joe”.

Moving away from legal news for a brief moment: This week, a new poll of key swing state Wisconsin had Trump and Biden tied 49-49 in a head-to-head matchup, while having Haley ahead by an astonishing 57-42 in a head-to-head matchup. However, this week Haley couldn’t even win a primary on which Trump wasn’t on the ballot, losing 30-63 on Tuesday in Nevada to “None of the above”.

This morning SCOTUS held its oral arguments in Trump v. Anderson, Trump’s appeal of the SCOCO decision banning him from the Colorado Republican primary ballot.

The arguments were scheduled for 80 minutes but ran a little over 2 hours. I’ve read a large number of SCOTUS transcripts after the fact, for fun, but this was the first time that I actually listened to an oral argument in real time; it was an interesting experience made slightly confusing by the fact that I don’t know the justices’ voices that well, but I mostly guessed correctly who was speaking, only confusing Roberts with Gorsuch.

The general consensus is that things went very well for Trump. Halfway during the arguments, electoral law expert Rick Hasen predicted a 9-0 or possibly 8-1 decision for Trump, with Sotomayor the only possible holdout. Shortly after things ended, Neal Katyal (a former #2 in the Solicitor General’s office) went on TV and said he’s listened to 400 SCOTUS oral arguments and made 50 himself, and that today went about as badly for the respondents as any SCOTUS oral argument he can remember.

My preview of the legal issues was largely on point: They indeed talked a lot about Griffin’s Case, and they talked a lot about whether the President is an “officer of the United States” to which Section 3 of the 14th Amendment could apply. On that point, I was rather surprised by Justice Jackson, who seemed to be advocating a point of the view that the framers of the 14th Amendment weren’t worried about the potential for a Confederate to assume the Presidency but instead were far more worried about Confederates infiltrating the government at lower levels, and hence the lack of explicit mention of the President within Section 3 may have been intentional. It was then that I think it became crystal clear that Trump would be winning this case.

But, winning on what grounds?

That remains unclear. My feeling from listening to the argument is that SCOTUS may be inclined to rule that a state does not have the right to enforce Section 3 against a federal official, as opposed to a state official. Chief Justice Roberts made an interesting argument to the effect that it would be very strange to read the 14th Amendment as giving a state that power, given the over-arching purpose of that amendment:

ROBERTS: “I mean, the whole point of the Fourteenth Amendment was to restrict state power, right? States shall not abridge privilege of immunity, they won’t deprive people of property without due process, they won’t deny equal protection. And on the other hand, it augmented federal power under Section 5. Congress has the power to enforce it. So wouldn’t that be the last place that you’d look for authorization for the states, including Confederate states, to enforce … the presidential election process? That … seems to be a position that is … at war with the whole thrust of the Fourteenth Amendment and very ahistorical.“

There was also a lot of discussion, largely led by Justice Alito, about the practical difficulties involved if one state (Colorado) had a finding of fact based on the record it had developed that Trump was an oath-breaking insurrectionist, and some other state, based on the record it had developed, reached the opposite conclusion. These difficulties arguably contra-indicate the existence of a state role in adjudicating this type of situation.

If SCOTUS were to choose to resolve the case strictly on those grounds, then they could kick the can down the road on other issues, like whether Section 3 could actually apply to Trump. Where would that leave matters, more globally?

To that effect, I noted an interesting exchange between Justice Jackson and Jason Murray, the lawyer for the CREW respondents:

JACKSON: “If we think that the states can’t enforce this provision for whatever reason in … the presidential context, what happens next in this case? I mean … is it done?“

MURRAY: “...I think this case would be done, but I think it could come back with a vengeance because ultimately members of Congress … may have to make the determination after a presidential election if President Trump wins about whether or not he is disqualified from office and whether to count votes cast for him under the Electoral Count Reform Act. …“

JACKSON: “And there is no federal litigation, you would say?“

MURRAY: “Well, that’s correct, because there is no federal procedure for deciding these issues, short of a criminal prosecution.”

This latter point calls back to an earlier discussion between Murray and Justice Kavanaugh:

KAVANAUGH: “[S]ome of the rhetoric of your position seems to suggest, unless the states can do this, no one can prevent insurrectionists from holding federal office. But, obviously, Congress has enacted statutes, including one still in effect. Section 2383 of Title 18 prohibits insurrection. It’s a federal criminal statute. And if you’re convicted of that, you are — it says, “shall be disqualified” from holding any office….”

MURRAY: “That’s absolutely right, Your Honor. But I would just make the point that the framers of Section 3 clearly understood that criminal prosecutions weren’t sufficient because oftentimes insurrectionists go unpunished, as was the case in the Civil War, and that the least we can do is impose a civil disqualification penalty so that even if we don’t have the stomach to throw someone in jail –“

KAVANAUGH: “Well, they had the quo warranto provision that was in effect then from 1870 until 1948, but then, obviously, that dropped out and hasn’t been seen as necessary since then.“

Wait, quo what? And what does 1948 have to do with it?

Apparently, after the ruling in Griffin’s Case, Congress had passed the Enforcement Act of 1870, which among other things enabled federal prosecutors to issue a writ of quo warranto to remove a government official who was disqualified under Section 3. However, for reasons that nobody alive seems to know, in 1948 those quo warranto provisions were repealed as part of a technical effort to codify existing statutes.

So, because somebody 76 years ago reached the conclusion that some language in a then-78-year-old statute must be obsolete, it appears that we no longer have a federal judicial vehicle to enforce Section 3. Terrific.

But, as Kavanaugh notes, we do have a federal statute against insurrection. Of course, Trump’s lawyer pointed out that Trump believes presidential immunity would insulate him from charges under that statute, notwithstanding this week’s D.C. Circuit decision.

More importantly, however, Special Counsel Smith’s indictment in the Jan 6th federal case does not include insurrection as one of the charges. Six months ago, when Smith’s indictment came out, the decision to not charge Trump with insurrection was generally hailed as a prudent tactical prosecutorial decision, one that would smooth the way towards a speedier trial focused on charges that were easier to prove.

To sum up: Based on today’s oral arguments, it seems certain that SCOTUS will not make a ruling to the effect that Trump is disqualified under Section 3, but at the same time I am unconvinced that SCOTUS will make a ruling to the effect that he is not disqualified under Section 3. Either way, it would appear Trump is going to remain on ballots throughout the 2024 electoral cycle. It is hard to know what else to say until we see the actual SCOTUS opinion.

Tomorrow morning, SCOTUS will hear oral arguments in Trump v. Anderson, which could turn out to be one of the most momentous Supreme Court cases of modern times.

What I wanted to accomplish in this post was lay out the major legal issues that, based on the briefing, appear to be at play in this case. The direct issue at hand is whether SCOCO committed some form of error in ruling that Trump is ineligible to appear on the Colorado Republican primary ballot. Depending on how SCOTUS answers that question, there may or may not be implications far beyond Colorado, however.

Across the two reply briefs filed this week by Trump and by the Colorado Republican Party, there are four major arguments put forth as to why the SCOCO decision was incorrect.

The first main argument is that Section 3 of the 14th Amendment does not apply to the conduct of a President, on either or both of the following grounds: the President is not, under the Constitution, an “officer of the United States”; and the oath sworn by the President to “preserve, protect and defend the Constitution” is not “an oath to support the Constitution.”

As a non-lawyer, both of these statements strike me as absurd. If you accept these arguments, as the original trial court in Colorado did before being overruled by SCOCO, then you are saying that the drafters of Section 3 weren’t concerned about having an oath-breaking insurrectionist serve as President, even though they specifically sought to prevent an oath-breaking insurrectionist from serving as a member of the Electoral College that elects the President! To the contrary, a great amount of evidence has been surfaced in recent months, from Congressional speeches and newspaper editorials, to the effect that it was widely understood in 1868 that the proposed Section 3 would prevent Confederates like Jefferson Davis from serving as President. This “public understanding” ought to be relevant to the conservatives on the Court, who have relied on that type of reasoning in their recent 2nd Amendment jurisprudence.

It has also been noted that Trump is the only person in the history of the United States who has sworn the unique Presidential oath without having previously served in some other governmental role in which they would have sworn a “support the Constitution” oath. As such, if SCOTUS were to accept the argument that “support” is a ‘magic word’ that isn’t subsumed within “preserve, protect and defend,” then that would in effect be a Trump-specific ruling with relatively few future potential adverse consequences. That could make it an attractive position for SCOTUS to take, if it is trying to find an easy way out here. However, it would still seem to be a ludicrous argument to make; if you have sworn to preserve, protect and defend something, then surely the public understanding is that you have sworn to support it?

The second argument is that Trump did not “engage in insurrection” in his conduct on and before January 6th. However, a five-day-long trial in Colorado concluded that he did; and it is not clear to me that SCOTUS has the ability to second-guess that factual finding unless it were to find that there was clear error by the trial judge, which none of the SCOCO justices (even the three dissenters) believed.

The third argument is that only Congress can take action to enforce Section 3. I imagine tomorrow we will hear a lot about an 1869 ruling, made by SCOTUS Chief Justice Chase riding circuit and never reviewed by the full SCOTUS, in Griffin’s Case. While that ruling is perhaps the strongest weapon in Trump’s arsenal here, the respondents have made some convincing arguments that it does not decide this case. In particular, Griffin’s Case was about a judge who already held office in 1868 when the 14th Amendment was enacted, and whether a ruling he made after its enactment was therefore unlawful. Chase concluded that Congress would have needed to take action to remove such people from the offices they already held at the time of enactment.

The fourth argument is that Section 3 only prevents someone from holding office, and cannot be used to keep someone off the ballot–particularly in light of the language therein which allows Congress to “remove the disability” by a two-thirds vote of both chambers. The reasoning here is that one cannot predict what Congress may do in the future, so it would be inappropriate to keep off the ballot someone who is currently disqualified from holding office when Congress could later take action to un-disqualify (if that is a word?) that person.

On the other hand, you could make a similar statement about, say, the Constitution’s requirement that someone must be at least 35 to serve as President: Theoretically, a Constitutional amendment could be enacted between now and the inauguration to change that. But when Justice Gorsuch was on the 10th Circuit, he wrote an opinion in Hassan v. Colorado upholding Colorado’s right to keep a person who is not a natural-born citizen off of the primary ballot for President. As Gorsuch wrote back in 2012: “A state’s legitimate interest in protecting the integrity and practical functioning of the political process permits it to exclude from the ballot candidates who are constitutionally prohibited from assuming office.”

I think those are the legal arguments most likely to be in play at SCOTUS, and it will be very interesting to see what can be inferred about each Justice’s perspectives on the case from the questions they ask tomorrow. Consistent with recent SCOTUS practice, there will be a live audio feed carried by C-SPAN, and the argument transcript should be available by mid-afternoon. Get your popcorn ready.

Some days are just more eventful than others…

In addition to the D.C. Circuit news mentioned in the last post, it was a busy day on Capitol Hill, if by “busy” you mean “the Republicans repeatedly demonstrated their inherent nihilism and legislative incompetence.” The New York Times’ Catie Edmondson summed matters up succinctly:

“To recap what has happened on Capitol Hill today: Republicans torpedoed a bipartisan border bill they demanded, leaving the fate of aid to Ukraine and Israel in peril. House Republicans tried to pre-empt that deal by proposing a standalone aid bill to Israel but were unable to pass it, with opposition from Democrats and their right-wing flank. And, finally, they failed to impeach the homeland security secretary after promising to do so for months.“

The effort to impeach DHS Secretary Mayorkas has been percolating for a while now, although it is completely unclear to me what “high crimes and misdemeanors” he is alleged to have committed; the Republicans’ criticism of him appears to be entirely policy driven. No sitting Cabinet Secretary has ever been impeached in the history of the United States, but the House came very close today: The vote was 215-215, before one Republican switched from yes to no in order to preserve the ability to file a motion to reconsider. Representative Scalise, the second-ranking Republican, missed today’s vote due to his health; it is possible the Republicans will try again tomorrow if Scalise can make it to the floor.

As for the torpedoing of a border security bill negotiated primarily by the very conservative Senator Lankford and seemingly tilted heavily towards traditional Republican priorities: When Trump comes out against a bill, that’s good enough for most of today’s Republicans. Of course, it would seem Trump’s opposition is entirely driven by his desire to campaign against Biden on border security issues. Why actually attempt to fix an issue that you’ve been claiming is a national emergency, when we’re only nine months away from an election? Sigh.

There were also developments of sorts on the Trump Org fraud trial today. Earlier this week I had referenced speculation that Judge Engoron’s delays in making his decision were potentially related to news that Trump’s former CFO is reportedly in plea talks over having perjured himself on the witness stand during that trial. Today an email from Engoron to both sides’ attorneys was made public, asking for clarification by tomorrow as to what’s going on, and raising the possibility that Engoron may use this to discredit all of Weisselberg’s testimony under the legal principle falsis in uno.

Reactions are coming in to this morning’s D.C. Circuit ruling. George Conway has an article in The Atlantic that is very complimentary of the per curiam opinion: “It’s not that often that you get a unanimous 57-page decision on novel questions of law in 28 days. And you almost never get an opinion of this quality in such a short period of time.” He then goes on to suggest that SCOTUS ought to pass on taking up Trump’s appeal:

“The strength of today’s opinion makes it far more likely that the Court will do …. nothing. Any court–including the Supreme Court–would have a tough time writing a better opinion than the one the D.C. Circuit published today. The best course of action would be for the Supreme Court to deny a stay, and to deny review altogether, in a matter of days. And that could mean a trial in United States v. Trump no later than early summer.”

Super Bowl LVIII is now five days away, pitting the Kansas City Chiefs against the San Francisco 49ers. While the Big Game always captures the nation’s attention, this year the frenzy is greater than normal thanks to the developing romance between Chiefs’ star Travis Kelce and Time’s 2023 Person of the Year, billionaire musician Taylor Swift, who herself just became the first four-time winner of the Album of the Year Grammy.

But in certain circles, the real Big Game is happening three days earlier than that: SCOTUS oral arguments in Trump v. Anderson, now only two days away.

Reply briefs from Trump and from the Colorado Republican Party were submitted yesterday, and as such my plan for today’s blog post had been to provide “pre-game coverage” with an analysis of their main arguments.

However that will now have to wait until tomorrow, because the D.C. Circuit just decided to get into the pre-game action, finally releasing its opinion in Trump’s interlocutory appeal in the federal Jan 6th case. As was widely expected, the three-judge panel unanimously held, in a per curiam opinion, that all of Trump’s immunity arguments were unfounded.

Recognizing that time is of the essence here, the panel also indicated that its decision would take effect on Monday, unless one of the following two things has happened before then: Trump has filed a notice of appeal with SCOTUS and SCOTUS has issued a stay (which would require five votes) while it decides whether to hear the appeal (which would require only four votes); or, alternatively, Trump has requested that the entire D.C. Circuit re-hear the case en banc and that request has been granted.

As a former student of mathematics, I particularly enjoyed the following discussion in the opinion, refuting Trump’s reading of the Constitution’s Impeachment Judgment Clause:

“Former President Trump’s reading rests on a logical fallacy: Stating that if the President is convicted, he can be prosecuted does not necessarily mean that if the President is not convicted, he cannot be prosecuted. See, e.g., N.L.R.B. v. Noel Canning, 573 U.S. 513 , 589 (2014) (Scalia, J., concurring) (explaining the fallacy of the inverse (otherwise known as denying the antecedent): the incorrect assumption that if P implies Q, then not-P implies not-Q).”

A minor irony here: One of the three judges hearing the appeal, Florence Pan, was appointed to the D.C. Circuit last year to replace Ketanji Brown Jackson upon her ascent to SCOTUS, who herself was appointed to the D.C. Circuit to replace Merrick Garland upon his appointment as Attorney General, an appointment that probably wouldn’t have happened if Trump hadn’t suppressed Republican turnout in the January 2021 Georgia runoff Senate elections via his criticism of the electoral process, thus making it possible for the Democrats to take control of the Senate later that month.

[CORRECTION, Feb 7th – I originally misstated the situation around Trump’s path to delay matters further via an appeal to SCOTUS, but have corrected matters above.]

On Friday, Judge Chutkan finally acknowledged what was increasingly inevitable in light of the D.C. Circuit’s continued delays in ruling on Trump’s interlocutory appeal, and indefinitely delayed the trial date in the Jan 6th federal case, previously set for March 4th.

Given that, it now seems probable that a different Trump criminal trial may commence first, the “hush money” case in New York state. This was the first set of criminal indictments to be brought against Trump back in April 2023, and a trial date of March 25th had previously been set. Here Trump is charged with falsifying business records in relation to payments he allegedly made to a porn star (Stormy Daniels) through an intermediary (his then-lawyer, Michael Cohen) in the waning weeks of the 2020 presidential campaign, allegedly in order to prevent news coming out before the election about Trump having had an affair with said porn star.

In contrast to the three other criminal proceedings currently pending against Trump, with the New York charges one can reasonably argue that selective prosecution is at play–that state felony charges would not normally be charged for this type of conduct. As such, this case has always struck me as the least important of the Trump trials. On the other hand, a reasonable argument can be made if the hush money hadn’t been paid and the Daniels story had become known in October 2016, then Trump would have lost the 2016 presidential election. From that perspective, it feels like judicial punishment for the hush money conduct is warranted even though state class “E” felony charges seem like an odd vehicle, the (increasingly ineffective) Federal Election Commission having dropped its investigation back in May 2021.

In other news disappointing to those hoping for a speedy resolution of Trump’s legal entanglements, on Friday a spokesperson for Judge Engoron said that the ruling on the Trump Org fraud case is now targeted for mid-February. Some have speculated that the delay may relate to news that former Trump Org CFO Allen Weisselberg may be negotiating a plea deal on charges of having lied on the stand during the Trump Org fraud trial.

However, some news did come out of the fraud trial this past week suggesting yet another potential exposure area for Trump.

As part of his earlier rulings in the Trump Org fraud case, Engoron had appointed an independent monitor, retired judge Barbara Jones, to oversee and report on certain aspects of the Trump Organization’s financial reporting and conduct. Jones issued her most recent report last week, and it contained a curious footnote, reading in part:

“I discussed the springing loan previously disclosed as being between Donald J. Trump individually and Chicago Unit Acquisition (an entity related to the Chicago Trump Tower) with the Trump Organization several times. When I inquired about this loan, I was informed that there are no loan agreements that memorialize the loan, but that it was a loan that was believed to be between Donald J. Trump, individually, and Chicago Unit Acquisition for $48 million. However, in recent discussions with the Trump Organization, it indicated that it has determined that this loan never existed…“

Apparently this $48 million loan, which has consistently appeared on Trump’s Office of Government Ethics (OGE) disclosures since 2015, has been a mystery to Trump watchers. As such, if Jones is correct that the loan actually never existed, then Trump has been making false disclosures to the federal government for years. Theoretically, that could lead to criminal charges.

But what may really be going on here is potential tax evasion, associated with $48 million of debt forgiveness Trump received from lenders relating to Trump Tower Chicago. Quoting from the Daily Beast’s recent article on the subject:

“…Jones’ letter appears to match a 2019 analysis from Mother Jones’ Russ Choma—which concluded that Trump may have committed tax fraud by fabricating the loan, making it look like his LLC still owned a debt that had in reality been fully forgiven. That would have allowed Trump to duck taxes on $48 million of canceled debt, a rate which could run up to 39 percent. Jones’ letter, citing the Trump Organization itself, backs up what would be the centerpiece to that theory: That the loan does not exist.”

In non-legal news, the Democrats held a presidential primary in South Carolina on Saturday, the first one of the year on which Biden was actually on the ballot. The Democratic Party had decided in 2023 that, going forward, South Carolina should be the first primary of the cycle, supplanting the traditional roles of Iowa and New Hampshire. When New Hampshire would not play ball by delaying their date, Biden announced he would not file to be on its primary ballot, although he won New Hampshire anyways due to a write-in campaign. This weekend, he won 96% of the vote in South Carolina against token opposition. The Republican primary in that state is still three weeks away.

…not with a bang but a whimper.

Judge Engoron did not meet his self-imposed January 31st deadline to issue his opinion in the Trump Org fraud case, so that waiting game continues; as does the wait for a D.C. Circuit opinion in Trump’s presidential immunity appeal in the Jan 6th case.

Yesterday was also the deadline for respondents’ merit briefs, and amicus briefs in support of respondents, to be submitted to SCOTUS in Trump v. Anderson. The amicus briefs on the other side, submitted two weeks earlier, had included a brief from Senator Cruz co-signed by 178 other current Republican Senators and Representatives, as well as a brief from Indiana co-signed by 24 other (red) states. As such, and not unlike what had happened in the ACA-related case California v. Texas a few years back, I had been expecting to see a similar wave of amicus briefs from blue states, current Democratic politicians, and prominent anti-Trump Republican politicians like Cheney and Kinzinger.

However, that ‘blue wave’ did not come to pass. Perhaps the consensus view, among not only Democrats but also the Republicans-in-exile, was that their interests would be harmed by weighing in here and thereby creating a perception that this 14th Amendment controversy is a partisan matter and/or an attempt to defang a political opponent. There was a brief submitted by “Former Republican Members of Congress,” but the most recognizable of the 12 names on that brief, at least to me, was former one-term Illinois Congressman Joe Walsh.

And after all, it’s not like there’s any lack of briefing on this case. A score of new amicus briefs arrived yesterday, even if there was a lack of star power in these briefs’ signatories, and even if some of them were submitted by… I hesitate to use the word “cranks,” so let’s just say, “randos.“

In non-legal news, a new poll of South Carolina came out yesterday, putting Haley significantly behind Trump in her own home state, 32-58. However there’s an interesting detail in the crosstabs that, unfortunately, says a lot about today’s Republican politics. Of the people polled, an astonishing 57% believe the ‘big lie’ that Biden won the 2020 election due to voter fraud. In that subset, Trump leads 83-17. Whereas, the 35% who believe the 2020 election was fair break 78-10 for Haley.

Tonight a major court ruling came down, dealing an unexpected and massive financial blow to a very controversial billionaire. Sound familiar?

However, for once Trump was uninvolved. Instead the news came from the Delaware Chancery Court, ruling that Elon Musk’s 2018 pay package from Tesla – which when granted had a fair value estimated at $2.6 billion but with a very wide range of potential outcomes, and has since proven to be worth over $50 billion – should be cancelled on grounds of, in effect, self-dealing.

Still nothing from Judge Engoron, or the D.C. Circuit. Engoron had said on January 11th that he would try to deliver his ruling by January 31st, so we’ll see what news tomorrow brings.

Amicus briefs in support of the decision below in Trump v. Anderson have started to trickle in to SCOTUS, prior to tomorrow’s deadline. Perhaps the most interesting of the early submissions is from a group of 20 former senior officials in Republican administrations, headlined by former Judge Michael Luttig; the next most familiar name in the group, at least these days, is attorney George Conway.

The Luttig brief paints a very compelling picture about how, in principle, the disqualification standard from Section 3 of the 14th Amendment is intended to operate:

“To summarize, under the Electors Clause and federalism, state courts and election officials initially have authority to adjudicate whether a candidate for President is disqualified by the Constitution. Next, under Article III’s authorization of appellate jurisdiction and 28 U.S.C. § 1257, this Court reviews such a ruling and makes the final judicial decision whether a presidential candidate is disqualified. Finally, under the Supremacy Clause, the Supreme Court’s ruling is binding in all 50 States.“

In short, per Luttig’s view the system so far has functioned as intended: A state took action under its own laws to determine whether Trump was disqualified under Section 3; it concluded he was; Trump appealed directly to SCOTUS; and now, urges Luttig, it is the responsibility of SCOTUS to make a nationally binding determination as to whether Trump is disqualified under Section 3.

Luttig also argues forcefully that, contrary to views expressed not only in the Amar brothers’ amicus brief but also in the briefs of some of Trump’s amici (including, separately, Senator Cruz and former Representative Meijer), Congress does not have an independent ability to determine whether Trump is disqualified under Section 3:

“[T]here is no textual commitment by the Constitution to Congress of the power to adjudicate a presidential candidate’s disputed qualifications. The constitutional text shows the exact opposite. … [I]f Congress has unreviewable power over Section 3 disqualifications, as some advocate … that would lack all the safeguards and checks of the rule of law, federalism, and separation of powers. … Nothing could be more contrary to federalism and separation of powers than giving a bare majority in Congress such partisan power with no possibility of veto or review by this Court.”

Having built the legal argument that it is the responsibility of SCOTUS to make a substantive ruling on SCOCO’s finding that Trump is disqualified under Section 3, the Luttig brief then goes on to argue that this finding was correct, and hence that SCOTUS should affirm the ruling below.

Looking at some of the other new amicus briefs, it’s interesting to see people coming forth to present views through their own very specific lens. We have a brief from a number of First Amendment legal scholars, focused solely on rebutting the assertion made by Trump and others that invoking Section 3 to disqualify Trump would violate free speech and/or free association rights; a brief from an African-American studies professor, focused in part on refuting the assertion made by some of Trump’s amici that January 6th was no more an insurrection than was the prior year’s Black Lives Matter protests in the wake of George Floyd; and a brief from three former Republican governors focusing on the importance of oaths in American governance.

To my knowledge, neither former Representative Cheney nor former Representative Kinzinger – the two now-excommunicated Republicans who served on the House January 6th Committee – have yet signed on to an amicus brief. I imagine their names will be seen in tomorrow’s submissions, and I am eager to see what arguments they advance.