All posts by r0wenbell

Election 2024: This is How the January Ends…

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.

Election 2024: This Was Not The Ruling You’re Looking For.

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.

Election 2024: The High Price of (De)fame

Yesterday afternoon, after about 3 hours of deliberation, a New York jury returned its verdict in the Carroll I trial. They ordered that Trump pay Carroll $18.3 million of compensatory damages, and a whopping $65.0 million in punitive damages. These amounts are incremental to the $4.7 million of compensatory damages and $0.3 million of punitive damages that a different New York jury had awarded Carroll in the Carroll II trial last May.

Often these types of punitive damages awards are symbolic, in that the defendant doesn’t have the ability to pay the amount awarded. Here, by contrast, Trump apparently has sufficient wealth with which to pay these damage awards, assuming they are sustained on appeal. However, it is less clear what his current liquidity position is. After appealing the previous verdict, Trump had placed $5.5 million in a court-controlled escrow account. It is not yet known whether he will place something like $83.3 million in a similar escrow account, or whether instead he will post an appeal bond. And, of course, there is a strong possibility that next week he will face even larger monetary penalties at the conclusion of the Trump Org fraud trial.

In other news yesterday, Norma Anderson and the other five CREW-supported Colorado voters filed their merits brief with SCOTUS in Trump v. Anderson, five days ahead of the deadline. Also filed yesterday was an amicus brief mentioned in the Anderson brief, from 25 history professors. Note that there are actually three sets of respondents in the case: the Anderson/CREW group; Jena Griswold, the Colorado Secretary of State; and the Colorado Republican State Central Committee. We can still expect to see a separate brief from Griswold, who is seeking divided argument, and some unknown number of amicus briefs in support of the decision below. The Colorado Republicans, despite technically being a respondent, are of course on Trump’s side and had actually filed their merits brief the day before Trump.

The Anderson merits brief spends the bulk of its time arguing two of the four points that I’d laid out in a previous post: that Trump engaged in insurrection against the Constitution, in the sense of Section 3 of the 14th Amendment; and that Section 3 applies to insurrectionist presidents. As such, their brief repeatedly refers to Trump as an “oath-breaking insurrectionist,” which I imagine he loves. The Anderson brief also argues that the “is Section 3 self-executing?” question is a red herring, because what is really at issue here is whether a state can take action under its own ballot access rules to enforce Section 3. As such, they argue that the Colorado Republicans “must prove not only that Section 3 is not “self-executing,” but that state laws to “execute” it are somehow unconstitutional.”

This last point raises the prospect that, as much as the nation might be better served with a definitive national solution to the “is Trump eligible to be President or not” question, such an answer may not be for SCOTUS to provide. Instead, it may really be the case that, given our federalist system of government, the legally correct outcome is that each state gets to decide for itself whether or not Trump should be on that state’s 2024 Presidential ballot.

This point of view was articulated more explicitly in an amicus brief filed several days ago by two legal scholars, Yale law professor Akhil Amar and his younger brother Vikram Amar (now at UC Davis). They argue explicitly that judicial minimalism requires “a fifty-state solution in which different states may properly have different procedures and protocols”, rather than a ruling that “imposes this Court’s views on all fifty states.” In the Amars’ view:

Some states may carefully police ballot access even in primary elections; others will focus more on the general ballot. Still others may wait until vote tabulation begins; and yet another cluster of states may defer to Congress as the last actor when electoral-college ballots are unsealed. Different states may have different standards and modes of proof… States can have even stricter standards than Section Three provides, so long as such standards meet global federal constitutional principles (free speech, due process, racial equality, etc.) as construed by this Court, and state constitutional requirements as understood by the states’ supreme courts.

The Amars also assert that, irrespective of what happens in this lawsuit, “Congress on Judgment Day [i.e., January 6, 2025] can refuse to count electoral votes that it alone deems improper.” As precedent, they discuss the Presidential Election of 1872. Grant won re-election in a landslide against Horace Greeley, who had won 66 electoral votes on election day but then died in late November, before the Electoral College voted. All but three of his electors ended up casting their votes for other individuals. Congress rejected the votes of the 3 remaining Greeley electors, on the grounds that Greeley was constitutionally ineligible to hold office, being dead.

Election 2024: Leaving New Hampshire, Spinning In Circles

Despite finishing 2nd in the Iowa caucuses, DeSantis — who, a year ago, seemed like a very strong contender for the Republican nomination — dropped out two days before the New Hampshire primary, endorsing Trump.

That reduced the Republican field to a head-to-head matchup between Trump and Haley. Trump won New Hampshire, with 54%, versus 43% for Haley and 3% for DeSantis and other candidates.

The next state primary on which both Trump and Haley are on the ballot will be South Carolina, which of course is Haley’s home state. One could imagine a path where Haley wins South Carolina and parlays that momentum into a strong Super Tuesday performance, particularly as Trump’s legal woes continue. After all, Biden lost both Iowa and New Hampshire in 2020, before his win in South Carolina propelled him to the nomination. Might Haley follow the Biden playbook?

However, the general consensus is that this is very unlikely to happen. For one, the political apparatus of South Carolina has already endorsed Trump, including most recently Senator Scott, even though he owed his original Senate appointment to then-Governor Haley. For another, the South Carolina primary electorate is expected to more closely resemble Iowa than New Hampshire, where Haley’s performance was propped up by independent voters (who are allowed to same-day register for the Republican primary, then immediately re-register as independent on their way out the door).

As such, while Haley remains defiant that the race will continue to South Carolina and beyond, the RNC Chair is already calling for Haley to drop out so that the party can unify behind Trump.

It has been a quiet week so far on the legal front, with no news out of either Judge Engeron or the D.C. Circuit. The Carroll I trial had been expected to wrap up on Monday, but between a juror’s illness and logistical issues around the New Hampshire primary, there was a three-day delay. Trump testified today, very briefly. Closing arguments will be tomorrow, and it is possible the jury will return a swift verdict before the weekend.

With regards to the SCOTUS 14th Amendment case, today Yale law professor Bruce Ackerman published an op-ed in Politico in which he not only argued that SCOTUS should rule that Trump is ineligible, but also considered some broader implications of such a ruling – and not just on the Republican side of the political spectrum. If Trump were declared ineligible, might Biden reconsider his decision to run for re-election, given his previous statement that he might not be running if not for Trump?

Ackerman argues that the SCOTUS ruling should include an unprecedented injunction, resetting the 2024 electoral landscape:

To allow new contenders from both parties to make their case to the voters, the justices should issue an injunction postponing Super Tuesday to early May — and provide potential candidates with a six-week opportunity to satisfy state ballot requirements. The Republican convention meets in the middle of July and Democrats will gather for their convention in August. That means the states will still have two months to hold their primaries in May and June, and the candidates will have plenty of time to campaign beforehand.



Election 2024: On to New Hampshire, But in the Shadow of Colorado

This week’s Iowa Republican Caucus results were fairly consistent with the final poll: Trump ended up at 51%, followed by DeSantis at 21%, Haley at 19%, and Ramaswamy at 8%. Ramaswamy promptly dropped out and endorsed Trump, leaving three main candidates going into the New Hampshire primary, now only three days away. Also endorsing Trump this week was another Presidential contender who had suspended his campaign prior to Iowa, South Carolina Senator Tim Scott.

No decisions came out this week from either the D.C. Circuit (presidential immunity for Jan 6th), or Judge Engoron (Trump Org fraud damages). Either or both may be issued this coming week; or, not.

The Carroll I trial (defamation damages against Trump) got underway this week and is expected to wrap up next week. Trump attended portions of the trial on Tuesday and Wednesday, and he made repeated comments during Carroll’s testimony that the jury might have been able to hear, prompting Judge Kaplan to threaten to remove Trump from the courtroom.

Given all this, the main development of interest this week was probably Thursday, the deadline for Trump to submit his legal brief to SCOTUS in his appeal of the SCOCO decision removing him from the Colorado primary ballot. In Colorado the case was known as Anderson v. Griswold, but now that the plaintiffs prevailed below and the appeal has gone federal, the case will go down in the history books as Trump v. Anderson. The named respondent, Norma Anderson, is a former Republican state representative and state senator who had retired from politics in 2006 at the age of 73, but was one of six Colorado Republican and unaffiliated voters who filed the lawsuit organized by CREW to remove Trump from the Colorado ballot. How many nonagenarians get to play a major role in the future of the Republic?

I have yet to read Trump’s brief, or any of the dozens of amicus briefs filed in his support. Briefs from the other side, and from amici supporting the decision below, are due on January 31st; I imagine I will write more about the case after those briefs have been submitted. However, I did want today to talk about the broad outlines of Trump v. Anderson, as well as talk about one amicus brief that has been filed in support of neither party.

The crux of the matter is the following language from Section 3 of the 14th Amendment, adopted in 1868 in the wake of the Civil War, where to enhance clarity I’ve omitted portions of the text that are less relevant to our current context:

“No person shall … hold any office … under the United States … who, having previously taken an oath … as an officer of the United States … to support the constitution of the United States, shall have engaged in insurrection or rebellion against the same… But Congress may by a vote of two-thirds of each House, remove such disability.”

The original intent of this section was to prevent future participation in government from former leaders of the Confederate States of America. However, the language enacted was not specific to the Civil War, but talks more generally about “insurrection or rebellion”. This is one of four substantive sections of the 14th Amendment, and then there is a Section 5, which reads in full as: “The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.”

As such, the controversy over whether this constitutional provision is relevant to the Presidential Election of 2024 can be distilled down to four main issues.

First: Does Section 3 of the 14th Amendment pertain to the Presidency? This question manifests itself in two distinct ways. Is a former President an example of someone who previously took “an oath as an officer of the United States to preserve the Constitution”? And, is the Presidency an example of “an office under the United States” to which this eligibility criterion pertains?

Second: Does Trump’s conduct on and before January 6, 2021 qualify as insurrection against the constitution of the United States?

Third: Is Section 3 of the 14th Amendment self-executing? That is, if an individual had engaged in insurrection or rebellion, are they automatically ineligible to hold office under the Section 3 of the 14th Amendment, or alternatively would Congress have needed to take implementing action under Section 5 of the 14th Amendment to make that individual ineligible?

Fourth: When does the question of an individual’s eligibility under Section 3 of the 14th Amendment become ripe? When an individual is placed on a primary ballot? Or on a general election ballot? Or only after they’ve won an election and they attempt to “hold office”?

These are the issues with which SCOTUS will need to grapple in resolving this case. And one can imagine a vast number of different resolutions. Maximalist rulings might include a definitive statement that Trump is eligible, or is ineligible, under the 14th Amendment to serve as President. But, it is very possible that the SCOTUS ruling in Trump v. Anderson could be less definitive, extending the cone of uncertainty around this issue.

It is towards that end that three experts in election law from disparate ideological backgrounds – Edward Foley, Benjamin Ginsberg (the Republican lawyer, not the political scientist), and Rick Hasen (the author of Election Law Blog) – banded together to submit an amicus brief in Trump v. Anderson in support of neither party.

The FGH amicus brief stakes out no position on the first two issues I laid out above, noting that “reasonable arguments can be made on both sides” of the question of whether Trump is disqualified under the 14th Amendment. Instead, FGH focus on making two points: Section 3 is indeed self-executing; and not only was Colorado justified in making a pre-election decision about whether Trump is qualified, but it is vital that SCOTUS address the merits of the issue now.

Quoting from the brief: “We appreciate fully that the Members of this Court would prefer not to be thrust into the middle of a presidential election like this. But there is no avoiding it. … A decision vacating the lower court’s decision on procedural or jurisdictional grounds, thus reinstating Mr. Trump on the ballot without deciding the merits of the disqualification question, would not reflect an admirable judicial modesty; instead it would mark a dangerous refusal by this Court to do its duty.”

FGH then go on to discuss various scenarios of what could come to pass in a world where Trump remains on the ballot without a definitive SCOTUS ruling on whether the 14th Amendment disqualifies him, including the following interesting point:

“If Mr. Trump ostensibly wins the Electoral College, it is a certainty that some Members of Congress will invoke Section 3 in an effort to prevent him from returning to the presidency. They will argue that only a majority of both houses is necessary for disqualification and that a majority of both houses already made a determination that Trump is disqualified under Section 3 when the House impeached him over the January 6 incursion and 57 senators voted to convict. Whether or not this effort is successful, it would risk serious political instability between November 2024 and January 2025.”

They also discuss the lack of clarity about who would become the new President if Trump won a majority of electoral votes but was then determined by Congress to be disqualified from assuming the office. They point out a conflict between the 12th Amendment, which indicates that if no (eligible) candidate has a majority of electoral votes then the House needs to select a candidate from among the (eligible) candidates receiving electoral votes (which in this situation could be Biden alone), and the 20th Amendment, which indicates the Vice-President-elect “shall then act as President” if “the President-elect shall have failed to qualify” before inauguration day. As FGH write:

“All of this would leave it dangerously unclear who, following a disqualification of Mr. Trump, should serve as President. Throw into the mix Mr. Trump’s certain refusal to accept any disqualification by Congress, and there would be no way to know who is entitled to act as President and commander-in-chief of the Armed Forces starting at noon on January 20. The consequences of that uncertainty would be existentially perilous to the United States, and they must be avoided if at all possible.”

No pressure, Chief Justice Roberts. No pressure.


Election 2024: Iowa Eve

It’s MLK Day today; the Iowa Caucuses are tonight.

Over the weekend the final Des Moines Register poll came out, putting Trump at 48% in Iowa. At this point there are only three other Republican active candidates of note: former South Carolina governor and UN ambassador Nikki Haley, polling at 20%; Florida governor Ron DeSantis, at 16%; and political neophyte Vivek Ramaswamy, a biotech entrepreneur, at 8%.

And tomorrow, yet another trial involving Trump will commence in New York. I’d kind of forgotten about this one which, given what I’m about to describe, is remarkable, in a sad way.

As background: In 2019, the journalist E. Jean Carroll published an account of her having been sexually assaulted by Trump in the mid-1990s in a department store dressing room. Trump vehemently denied this, leading Carroll to sue Trump for defamation. While that case (Carroll I) was still wending its way through the court, Carroll sued Trump again in November 2022 (Carroll II) under a newly-passed New York law called the Adult Survivors Act, which created a one-year window in which civil suits relating to sexual offenses for which the statute of limitations had passed could be filed.

Carroll II went to a jury trial in April 2023, and the jury found that Trump had committed sexual assault and defamed Carroll, awarding Carroll $5 million of damages. In the wake of the verdict, Trump immediately made defamatory comments about Carroll on national television, leading Carroll to amend her allegations in Carroll I accordingly to add the new comments.

The progress of Carroll I through the system had been delayed by questions of – what else? – Presidential immunity, on the theory that the sitting President’s response to an allegation against him constituted an official act for which he would be immune from civil litigation under the so-called Westfall Act (a 1988 statute enacted to override the SCOTUS decision in Westfall v. Erwin). In light of a D.C. Circuit appellate decision in January 2023 in Carroll I, in July the DOJ submitted a letter indicating that it no longer believed that Trump was “acting within the scope and employment of his office as President” in his 2019 comments about Carroll, and hence it no longer believed the Westfall Act was salient to this case.

This removed the impediment for Carroll I to proceed to trial. In September 2023 the assigned judge, Lewis Kaplan, issued a summary judgment in favor of Carroll, in light of the findings in Carroll II. As such the trial scheduled to start tomorrow in Carroll I is, much like the Trump Org civil trial, very limited in scope to determining the amount of damages Trump owes for defamatory acts that have already been legally deemed to have occurred. In particular, quoting from a memorandum opinion Kaplan issued last week in advance of the trial: “[T]he fact that Mr. Trump sexually abused – indeed, raped – Ms. Carroll has been conclusively established and is binding in this case.”

So, to sum up: The candidate currently polling at 48% in a four-way Iowa caucus field is the individual who, the very next day, will be standing trial for $10 million of potential damages relating to the fact that, several months ago, a jury “conclusively established” that he committed sexual assault and defamed his accuser.

Once again, everything about that sentence would have been stunning prior to the last several years. But in our world, tomorrow’s trial might not even make the Top Five list of Trump-related trials currently in the public eye.

Election 2024: Entering Iowa

We’re three days away from the Iowa caucuses, but nobody really cares. Even though Trump did not win Iowa in 2016, everyone expects he will win handily this time, although record cold weather could possibly throw a spanner in the works.

Instead, the more interesting news of the week came from two different courtrooms – one in D.C., and one in New York City – both of which featured cameo appearances by Trump.

We start Tuesday in D.C., where the D.C. Circuit Court of Appeals heard Trump’s interlocutory appeal in the criminal case arising out of the events of January 6th, with the appellant himself taking the unusual step of being in the audience.

Procedurally, the D.C. Circuit had moved extremely quickly to hear this case, motivated perhaps by the fact that the district court trial date had been set for March 4th, and perhaps also by the fact that if the D.C. Circuit hadn’t shown its willingness to move so swiftly then the Supreme Court might have been more inclined to grant the government’s motion for certiorari before judgment. The district court judge, Tanya Chutkan, issued her ruling denying Trump’s motions to dismiss the charges on grounds of presidential immunity and constitutional immunity on December 1st; by December 13th the D.C. Circuit had granted the appeal with a swift schedule for briefing, making it possible to have oral arguments on January 9th. That is, by the standards of the appellate courts, incredibly fast.

Trump’s argument for immunity attempts to weave together two concepts. One is that SCOTUS previously established, in Nixon v. Fitzgerald, a principle that Presidents are immune from civil (as opposed to criminal) liability for actions lying within the “outer perimeter” of their duties, whereas no prior case has ever explored potential criminal liability for Presidential actions (recalling that Ford pardoned Nixon shortly after taking office, mooting the issue with respect to Tricky Dick). The other is that Section 3 of Article I of the Constitution says explicitly that, after an impeachment trial by the Senate, “the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.”

From this raw material, Trump’s current legal team has advanced a principle that a former President can only face criminal liability for official actions after a Senate conviction on impeachment charges related to those actions. Consequently, per this purported legal principle, the January 6th charges must be dismissed since Trump was acquitted in the February 2021 impeachment trial.

Or, as former Obama administration official Eric Solomon wittily put it: “Trump’s position is that Biden can kill him if 34 Senators agree.”

Among the many factors undermining Trump’s legal argument – in addition to it being a logically fallacious reading of the Constitutional language, and to it having crazy potential consequences – is the fact that various prior actions contra-indicate this interpretation of the law. One example is Nixon’s acceptance of Ford’s pardon; if Nixon were immune on the grounds that he had not been impeached and convicted, then there was nothing for which he needed to be pardoned. Another example is that, in Trump’s second impeachment trial, his then legal team argued that impeachment was pointless since he was already out of office and since he would now be subject to the criminal justice system for his conduct on January 6th.

As such, the widespread consensus is that Trump will lose this appeal. However the question remains, how exactly will he lose it, and how rapidly; and then, what happens next in terms of further avenues of appeal on this issue before the district court trial can commence.

Norman Eisen and two co-authors wrote an extensive treatise earlier this week, laying out a dizzying variety of possibilities. As I write this it is now the Friday night three days after oral argument, and nothing has come out of the D.C. Circuit yet; the waiting game continues.

Two days later in New York, Trump was once again inside a courtroom, as part of the closing arguments of what I’ll refer to as the “New York Trump Org” case, a civil lawsuit brought by New York Attorney Letitia James against Trump and other family members who served as executives of the interconnected family of companies that Trump likes to style as the “Trump Organization.”

I’ll likely talk about this suit at greater length when the decision is issued, which should happen by the end of January, and hence will make do for now with a brief summary.

The allegations made by James in September 2022 were: that the Trump Organization repeatedly prepared, and disseminated to potential lenders and insurers, unaudited financial statements that purported to have been prepared in accordance with U.S. GAAP but in fact were not; that, in doing so, the Trump Organization violated a New York law regarding “persistent fraud or illegality in the carrying on, conducting or transacting of business”; and that the appropriate remedy is to prevent Trump from conducting business in New York for 5 years and to have him disgorge at least $250 million.

For reasons I don’t entirely understand, this trial is being heard by a judge alone, and not by a jury. Furthermore, the judge (Arthur Engoron) kicked off the trial in September 2023 with a finding of fact that fraud had in fact occurred, making the trial’s sole purpose the quantification of how much Trump would need to disgorge. The prosecution is now arguing that amount should be $370 million.

Trump has been attacking the judge and the process throughout the trial, and he sought to personally participate in the closing arguments this week. That went about as well as you think it might.

So, to sum up: The presumptive winner of next week’s Iowa caucuses spent his week making legal arguments about the scope of presidential immunity that would be laughable if they weren’t so dangerous, followed by ranting against the sole arbiter who will determine whether his business interests in New York remain viable and how many hundreds of millions of dollars he may have to forfeit as a penalty for committing civil fraud.

That would have been a pretty astonishing sentence to write, prior to these 2020s. Now, it’s just part of the background noise of the world in which we live.

Election 2024: Once More Unto The Breach

This blog has remained inactive for the past three years, having last been used to document in real time my take on news related to the US Presidential Election of 2020.

As 2024 dawns, we once again find ourselves in a situation where the presidential election is incredibly important, feels incredibly uncertain, and is subject to vast amounts of judicial scrutiny. As such, once again I think it will be fruitful to try and document events as they happen over the next several months, although given work pressures these posts may be infrequent over the next few months.

So, where are we, and how did we get there over the past three years?

Although we are weeks away from the Iowa caucuses, there has been virtually no suspense about how either party’s Presidential nomination will proceed. For the Democrats, to my personal disappointment Biden is seeking re-election, and has attracted only token opposition. Meanwhile the Republican party has devolved into a personality cult around Trump, to an even greater extent than was true in 2020. While there are several other candidates running in the Republican primary, Trump’s lead over the field is so large that he has skipped every single debate; nor, with the singular exception of Christie, have any of the other candidates seen fit to criticize Trump, for fear of being cast out of the party as apostates. That’s what happened to Liz Cheney, formerly the third-ranking House Republican, but primaried out of her safe Wyoming seat in 2022 in light of her role as vice-chairperson of the House Committee investigating January 6th.

Trump never accepted his defeat in 2020. His second impeachment trial didn’t take place until February 2021, after he was already out of office. It led to an acquittal, attracting only 57 Senate votes to convict, with many of those who voted to acquit (including McConnell) indicating that their vote reflected the fact that his term was over and therefore impeachment seemed inappropriate and/or unnecessary. After the acquittal, Trump in effect never stopped campaigning, although he didn’t officially declare his 2024 candidacy until days after the 2022 midterms.

Biden’s presidency has by many measures been a success, although public perception has fallen short of the reality, and his approval ratings have generally been in the low 40s. The country made it through the COVID-19 pandemic, although substantial stimulus spending in 2021 was not done in a particularly efficient manner and likely contributed to significant inflation in 2022. However, notwithstanding that fiscal imbalance remains a significant problem and climate change appears to be getting worse, the immediate economy is in the type of shape than an incumbent president running for re-election would want; and yet, Biden is not benefiting from these domestic conditions. Foreign policy issues have been challenging, with the Russia-Ukraine war nearing its 3rd year but with Republican support for Ukraine waning, with the US exit from Afghanistan having gone poorly, and more recently with the Israel-Hamas war creating fissures in the Democratic coalition.

In early 2021, the new Congress was slated to have a 50-50 split in the Senate, and a 222-213 Democratic edge in the House. Coming out of the 2022 midterms the House remained 222-213, but now with the Republicans in control, while the Democrats actually gained a seat in the Senate; this was an unexpectedly good midterm performance for the party occupying the White House. The ideological makeup of the typical Congressional Republican continues to grow more Trumpian, a trend that seems likely to continue in 2024 as many of the remaining ‘mainstream Republicans’, such as Romney, are not running for re-election. House Republicans have had significant difficulty actually governing in 2023. It took days of voting for them to elect Kevin McCarthy as speaker, and then several months later he was pushed out, after which it took Republicans a month to elect a new speaker after rejecting the first several logical replacements. A common prediction is that Congress will remain split after the 2024 election, but with the parties switching sides: the Republicans may retake the Senate thanks to Manchin’s decision to retire and an otherwise favorable set of seats in play, while the Democrats may retake the House as judicial decisions in states like New York, Wisconsin, and Alabama lead to more favorable 2024 maps than those used in 2022.

But the real trauma looming over the country right now involves judicial activity involving Trump. There are civil suits; there are criminal suits, both state and federal; there are suits involving electoral law; and there is appellate activity arising from each of these categories. Two appellate cases are of immediate interest.

The first relates to what I’ll refer to as the “D.C. criminal case,” in which Trump (and, for interests of speed, Trump alone) has been charged with multiple crimes arising out of January 6th. While a trial has been scheduled to start on March 4th, there is substantial doubt as to whether that date will stick. In December, the district court ruled against Trump on two issues where his ability to appeal is interlocutory in nature, meaning the appeal must be resolved before the trial can occur: one issue is whether a former President is immune from criminal prosecution for events occurring during the Presidency; and the other is whether Trump’s impeachment acquittal forestalls a subsequent prosecution on double jeopardy grounds. Trump has raised other defenses that were also rejected by the district court, but those issues do not give rise to interlocutory appeals, just post-conviction appeals.

The special counsel prosecuting Trump in the D.C. criminal case, Jack Smith, had asked the Supreme Court to hear Trump’s interlocutory appeal directly, instead of having it proceed normally in the D.C. Circuit Court. SCOTUS denied that request, but the D.C. Circuit Court is moving with extreme speed, and will hear Trump’s appeal on January 9th. Win or lose, this case will surely reach SCOTUS; but when?

The second relates to a heretofore obscure clause of the US Constitution, Section 3 of the 14th Amendment. Serious arguments have been advanced that, under this clause, Trump is ineligible to hold the Presidency going forward, on the grounds he participated in an insurrection against the US government — to wit, the events of January 6th. The Supreme Court of Colorado very recently ruled that, under Colorado law, Trump is ineligible to appear on the Republican primary ballot. Trump has appealed this ruling to SCOTUS, who just agreed to hear the case – again moving briskly, with oral arguments scheduled for February 8th. The Secretary of State of Maine has also determined that Trump is ineligible to be on the Maine primary ballot, while other states including Michigan and Minnesota have declined to take action with respect to their state’s primary ballot, but holding out the possibility that action could be appropriate under their state’s law with respect to a general election ballot.

Part of what makes this upcoming SCOTUS case very interesting is that a number of conservative legal scholars and jurists have come out in defense of the SCOCO ruling and have said that SCOTUS ought to affirm it. As such, from the standpoint of the six Republican-appointed justices, there may be a very serious conflict between the legal and interpretative principles to which they claim to adhere, and the political interests of the Republican party. On top of that, the case appears to have serious institutional implications for SCOTUS, as whichever side loses is unlikely to accept the decision as being legally legitimate.

It is going to be a long and interesting year: Stand back and stand by. (Too soon?)

Election 2020: Wrapping Up

A few days before Election Day, I decided it would be beneficial to record some observations about the election in real-time, recognizing that 2020 was likely to be an election of unusual historical importance, and thinking that it would be helpful in future years to have a reminder of the winding path the nation went down on its way to achieving clarity about the results of that election.

I think we all got more than we bargained for: A closer-than-expected election that took several days for the major media organizations to call; an incumbent President who refused to accept the results of the election or concede to his opponent, despite lacking any tangible evidence that the election was not free and fair; a series of increasingly absurd and fundamentally anti-democracy legal arguments advanced by the President and his advocates in an attempt for him to retain power; Senate control, and with it any chance for Biden to have a meaningful chance of advancing an agenda, hinging on two Senate runoff elections in early January; and, just yesterday, the completely unprecedented impeachment of a President mere days before he is scheduled to leave office due to his conduct in refusing to accept the results of the election he lost, leading to an insurrection of sorts against Capitol Hill.

This seems like the right time to “break the wand,” as Bill James once put it, and stop this series of blog posts. Yes, there is still some election-related news ahead of us: Georgia has not yet certified the Senate runoff elections, so Schumer has not replaced McConnell as majority leader; one House race in New York remains undetermined, and there’s some possibility that the losing candidate in another House race in Iowa could successfully plead her case with the House Administration Committee; there’s an impeachment trial to occur; and of course there is the inauguration itself, and the non-trivial possibility of further political violence before or during the inauguration. But, for all intents and purposes, the election is behind us.

Behind us, but far from forgotten. The events of late 2020 will reverberate, I fear, for many years to come. On that theme I want to end this series of posts by talking about an opinion piece published yesterday in The Bulwark by its executive editor, Jonathan Last, a conservative writer.

Last starts by talking about what he calls “the big lie”:

Trump’s contention that the results of the 2020 election are fraudulent is a lie. Not a mistake, not a difference of opinion, not a misunderstanding. A lie. …

Nothing can get better in American politics until this lie is repudiated by the main body of the Republican party in the public square, with enough force and repetition that the majority of Republican voters cease to believe it.

Even if armed insurrection is not a weekly occurrence, a government cannot function when a third of the citizens believe it is literally, not rhetorically, illegitimate. It is not be possible to legislate or build consensus or even enforce the laws when you begin with a substantial minority who literally believe that the government is the product of a coup.

What the Republican party has done over the last two months is akin to having dropped polonium into America’s political groundwater.

And the radiation from their lie has poisoned everything.

Last also helps put in some perspective the behavior of the Capitol Hill insurrectionists and their sympathizers:

[I]f this lie remains in American politics, there will be no peace or comity.

Think about it from the perspective of the person who believes the lie: They have been told by the president of the United States that the election was fraudulent. The vast majority of the president’s party has testified to the truth of this story. The only reasonable conclusion of this tale is that America is currently undergoing a coup. That the incoming government is not only illegitimate, but is an occupying, authoritarian force.

If you believe that—if you really, truly believe it—then how could you acquiesce in anything that is happening? How could you pay taxes? Why would you obey laws? Why wouldn’t you storm the Capitol? Because if you believe this lie—really, truly believe it—then you are trying to save our democratic republic.

If you believe the lie that Democrats have ousted the duly-elected president of the United States in a bloodless junta, then what could President Joe Biden possibly do to bring about unity?

Nothing. Because he would be—literally—a tyrant.

This, tragically, is the world we now have to live in, thanks in fundamental part to Trump’s inability to accept that he lost the election.

As Last indicates, for our nation to truly heal we need the Republican leadership to refute the “big lie”. Senator Romney already took steps in that direction, in his remarks on the Senate floor the evening of the insurrection:

The best way we can show respect for the voters who are upset is by telling them the truth. That is the burden, and the duty, of leadership. The truth is that President-elect Biden won this election. President Trump lost. 

I wouldn’t say I’m optimistic that enough other Republicans will ever follow suit for it to change the hearts and minds of tens of millions of my fellow Americans. And that saddens, and frightens, me.

Election 2020: Day 71, 5pm

The House impeachment vote took place earlier in the day than was expected. After a single day of hearings and debate, the House voted 232-197 to impeach Trump for “incitement of insurrection,” with 10 Republicans joining with the Democrats.

McConnell, who remains Majority Leader at this time because the state of Georgia has not yet certified the results of this month’s Senate runoff elections, confirmed that he is not prepared to re-convene the Senate earlier than originally scheduled so that an impeachment trial could commence immediately. Part of his reasoning is that it even if he were to immediately re-convene the Senate, it would be impossible to conduct a fair impeachment trial on a fast enough timeframe to have the trial end before inauguration day. McConnell has also signalled that his mind is not made up on how he would vote in the Senate trial, which is a stark contrast to the first impeachment.

As such, the timing of Senate action on the impeachment remains unclear. President-elect Biden reiterated today his hope that “Senate leadership will find a way to deal with their constitutional responsibilities on impeachment while also working on the other urgent business of this nation.”