Mr. Smith Goes to SCOTUS
I’m close to bed, so I won’t read it here, but here is Jack Smith’s SCOTUS response on Trump’s immunity claim. This was Trump’s appeal.
Remember that this was technically an application for a stay, not the entire appeal (though one option for SCOTUS is that it treats Trump’s request as a cert position). What Jack Smith is arguing is that the stay should be lifted.
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“If, however, this Court believes that applicant’s claim merits review at this time, the government respectfully requests that it treat the application as a petition for a writ of certiorari, grant the petition, and set the case for expedited briefing and argument.”
This is freaking brilliant—a Schrodinger’s Response.
I’m looking forward to the more learned reviews but my read of these 40 pages tells me that SC Smith did his homework and should prevail absent other factors. We’ll see but I also note the earlier US v Trump rejection reference would be a subtle reminder that SC Smith put in: you guys rejected this kind of stuff before, please follow the law you supported.
So, the idea here is to have SCOTUS refuse to grant cert so the DC Circuit decision stands. Unfortunately only four justices are needed and at least two are fully in the bag for Defendant-1 and three others are kind of wobbly. However, the Yogi Berra lead for Defendant-1’s appeal can’t impress in a good way. Jokes are only appropriate for business meetings, not appeals to SCOTUS IMHO.
Trump needs 4 for cert, 5 for a stay.
I think a cert referral would function like a stay by stopping proceedings until after SCOTUS rules. It’s all about getting into mid-November, after the election before the bad news comes out.
Even if they have 4 votes to grant cert, there’s no stay unless they have 5 votes for it. I can’t remember whose tweet I read, but it was about a death penalty case where there were 4 votes to grant cert but not 5 to grant the stay, and the case became moot when the person was executed before the case was heard. SCOTUS sometimes has a “courtesy” 5th vote for a stay in those cases, but I don’t know that that would occur here.
Harry Litman? He referred to that case on TV last night. Made my blood run cold.
Yes, it could be him. I’d go check his account on Nitter, but it’s no longer working (I don’t have a Twitter account). It infuriates me that we have a death penalty, and agree that that situation makes one’s blood run cold.
Filing a petition for cert. does not automatically stay the mandate. That’s the function of a request for stay. Petitioners usually do both, but a stay is not automatic.
Staying the mandate is important to a petitioner, like Trump. It fills the time gap between the appeals court’s judgment and the issuance of the mandate, on the one hand, and the S.Ct. making its decision whether to accept cert., on the other. That can take months. If the Court accepts cert., that stays the mandate until the Court decides the case. If it denies cert., the mandate issues promptly.
If the Court accepts cert., odds are it will issue a stay or expedite its decision.
No surprise that Smith’s team probably had this in the can. Their deadline to file it was next Tuesday.
It was already written before the applicant filed.
You’re either on Smith’s team and leaking, or you’re guessing. :-)
Only projecting what I would have had ready at the Court of Appeals level. After a favorable decision there, the government’s response is not hard to imagine.
Not only is beginning their application with a Yogi Berra joke impertinent and insipid, like the rest of Trump’s argument, it misconstrues the posture of the case. In the SC’s application for cert before judgment there was not yet appellate review. Now there has been appellate review and an exhaustive per curiam opinion, with which there can be no serious difference. It is quite usual for the S. Ct. to let stand such appellate decisions as the final word on a case. Any decision to stay this case would only be a political favor to Trump. Such an outcome would dwarf even Bush v. Gore in its mendacity. As bad as that decision was, Bush did not try to subvert an election by criminal means. (His crimes were yet to be comitted.)
Cogently put.
For an ordinary case, I agree. When the Supreme Court likes the lower-court ruling, it seldom grants cert. This is not an ordinary case. That’s why some folk have been talking about the extremely rare option of summary affirmance–essentially rubber-stamping the DC Circuit’s opinion and making it the Supreme Court’s own. On the other hand, Ginni Thomas’ husband might not like this alternative, nor the Justice from Fox News.
Like Trump’s “I WON” statement pertaining to his already-lost fraud case, it simply seems like Trump is calling the legal shots, no matter how ridiculous the legal argument. I guess it’s his attorneys who would pay the price for these shenanigans, so what does he care?
Dogshelpgod,
A quibble with your relative ranking of the mendacity of the S. Ct. Allowing TFG to delay v. Its anointing Bush as our President. Pls. Understand, I think allowing the delay is nothing other than execrable. You are right that all of Bush’s (Presidential) crimes were yet uncommitted, but Bush and his enablers did in fact try to subvert an election by criminal means (Brooks Brothers riot. thanks Roger Stone!) 51 million Americans had their votes ignored, traduced, and stolen. FWIW, Sandra Day O’Connor reportedly later lamented her vote in that matter.
I can personally guarantee that Sandra Day did later regret that. Too little too late, but she did come to believe it.
Based on how SC Smith has responded to previous motions, I did not expect him to wait until next week to file a response and he did not disappoint.
Vladeck nailed it:https://stevevladeck.substack.com/p/66-united-states-v-trump
“I expect Chief Justice Roberts (in his capacity as Circuit Justice for the D.C. Circuit) to call for a response to the application pretty quickly, and to have it due this week, perhaps as early as 5 p.m. on Wednesday. So there’s a chance we hear from the Court on whether the January 6 prosecution can go forward by the end of this week, although my money is on next week..”
Ok, he got Roberts’ deadline wrong, but Roberts’ call timing was correct and it was still exactly the response deadline Smith gave himself.
Didn’t the Supreme Court give the Government a week to file their response? Jack Smith filing in two (count ’em, two!) days instead seems to be definitely throwing down the gauntlet. Bring it on.
From the close:
The government’s petition for a writ of certiorari before judgment … [was] denied … . To the extent that the denial reflects that this Court is not inclined to review applicant’s claim, no reason for a stay exists. If no reasonable probability exists that certiorari will be granted, that provides a dispositive reason to deny a stay. And the Court is better situated to assess that question now that the court of appeals has thoroughly analyzed and rejected applicant’s immunity claim.”
Is this Smith trying to put the Supremes in a cleft stick?
Can’t help laughing at this Valentine’s Day gift from Jack Smith.
(Also happens to be the anniversary of Captain Cook’s death at the hands of furious Hawaiians. Cook-ed Day. LOL)
I’m sure it was a bonus. Bwa Hahahahahahaha
That makes me boil over with pleasure.
Is someone on hand to film it, or do you have a selfie stick?
“Cooked-Day” Oh that’s good 👍🏽
So, it appears the stay request is fully briefed. As far as I can tell, S. Ct. R. 21 governing motions contains no right of reply, nor does S. Ct. R. 23 concerning stays. Of course, the Court could request a reply or Trump could seek leave to file one.
Smith’s problems in responding seemed to me to be twofold. First, the court of appeals wrote much more than was necessary to decide the case and did so writing upon a novel issue of law about which many Justices may have strong opinions. Second, Smith already said the matter was cert worthy.
Smith addresses the first issue by arguing that whatever immunity may exist it cannot exist with respect to a President’s commission of crimes intended to obstruct and defeat the peaceful transfer of power. Smith’s response, and Judge Luttig et al.’s amicus brief in this docket, point out that the actual holding of the court of appeals on this issue is just that narrow.. Smith is inviting the Court to ignore the dicta (or say something that narrows any future reading of the D.C Circuit’s opinion).
There appears to be no mention of Blassingame. Smith is playing for a determination that forecloses a revisiting of this issue later.
Smith addresses the second point by saying, look Court now that you have the benefit of the court of appeal’s opinion, it’s up to you to decide if you want to get into this, but if you do, do it expeditiously.
Much of the argument strikes me as direct argument to the Court as opposed to “the court of appeals got this right,” and lots of accompanying quotation. The D.C. Circuit’s opinion gets its due at appropriate points, but it is not the centerpiece of the response. (Others may see it differently.)
The remedial pitch is very good: either deny the stay or grant cert and expedite. Smith ignores Trump’s specific request for a stay while he seeks rehearing from the D.C. Circuit (unless I missed it).
There is a wild card in all of this. Just because the court of appeals found jurisdiction, the Court could disagree and find that Midland barred the court of appeals from considering anything but Trump’s Double Jeopardy argument – which is certainly not cert worthy.
The Court can do what it pleases. But I think Smith’s response is well done in terms of argument, tone, and suggested resolution(s).
“The remedial pitch is very good: either deny the stay or grant cert and expedite. Smith ignores Trump’s specific request for a stay while he seeks rehearing from the D.C. Circuit (unless I missed it).”
p. 37, footnote 15
Nice catch, thanks.
“The good stuff’s always in the footnotes!“
That one jumped off the page right into my forehead.
I also loved Smith et. al. calling Trump’s Marbury argument a “non-sequitur.” That made me feel so much better after trying to make sense of it and finding only gibberish.
Indeed. The DC Circuit panel already unanimously determined that Trump’s likelihood of success was so low, that neither a petition for rehearing by the panel nor a petition for rehearing en banc should stay the mandate.
Trump wants the S.Ct. to overrule that judgment, and cause months of delay, apparently so that he can do two things in sequence: ask for an en banc hearing at the DCC, and get a decision on it; file a petition for cert. at the S.Ct. and get a decision on that.
That’s a big hurdle for a petitioner to climb. Trump’s brief doesn’t seem to come close to doing it.
It is also worthy of note that the footnote 15, p37 reference
“Applicant’s bid for a protracted stay …. serves no valid purpose other than to delay the resolution of his immunity claim and any ensuing trial.”
Builds on the multiple references to and arguments against Trump’s tactics of delay found in the response
pp 3,4, 9, 34,35, 36,37, 38.
“There is a national interest in seeing the crimes alleged in this case resolved promptly.
The stay equities do not favor applicant. His personal interest in postponing trial proceedings must be weighed against two powerful countervailing considerations: the government’s interest in fully presenting its case without undue delay; and the public’s compelling interest in a prompt disposition of the case. Applicant’s asserted equities in avoiding further pretrial proceedings do not outweigh those interests. Nor does his assertion (Appl. 3- 4, 33-38) that the First Amendment rights of “tens of millions of American voters” compel further delay in the criminal proceedings. To the contrary, the charges here involve applicant’s alleged effort to disenfranchise tens of millions of voters”
I note that Jack Goldsmith contends that Jack Smith’s
“Rush to trial” (sic) https://www.lawfaremedia.org/article/the-consequences-of-jack-smith's-rush-to-trial
constitutes a violation of DOJ policy specifically :
Section 9-85.500
https://www.justice.gov/jm/jm-9-85000-protection-government-integrity#9-85.500
and Section 9-27.260
https://www.justice.gov/jm/jm-9-27000-principles-federal-prosecution#9-27.260
of the DOJ Justice Manual
It seems to me the argument he propounds is a misreading of the provisions, and seems to ignore the extent of Jack Smith’s authority as per the appointment order:
https://www.justice.gov/opa/press-release/file/1552896/download
9-85.500
“Federal prosecutors and agents may never select the timing of any action, including investigative steps, criminal charges, or statements, for the purpose of affecting any election, or for the purpose of giving an advantage or disadvantage to any candidate or political party. Such a purpose is inconsistent with the Department’s mission and with the Principles of Federal Prosecution. See § 9-27.260. Any action likely to raise an issue or the perception of an issue under this provision requires consultation with the Public Integrity Section, and such action shall not be taken if the Public Integrity Section advises that further consultation is required with the Deputy Attorney General or Attorney General.’
Goldsmith I think overreads “any action” to encompass post arraignment conduct of the prosecution, which is dubious in itself
Goldsmith’s argument goes further and contends Smith has an improper purpose:
“Smith’s timing decisions clearly have a “purpose of affecting” the presidential election, at least in the sense of wanting the American people to have the benefit of his evidence and the jury’s verdict before voting in November.”
Which is IMHO a misreading of the guidance.
Note Smith’s appointment came immediately upon Trump’s announcement of his candidacy for re-election – Goldsmith’s argument amounts to interpreting the manual as granting immunity.
The more difficult question is the question of avoiding the perception of an issue disfavoured by the guidance.
Here section 9-85.500 needs to be read in the context of
9-85.000 et seq and compare with the appointment order. It is clear that Smith, (the former head of the Public Integrity Service (PIN) ) by the terms of the order is not required to consult with PIN and be supervised by them on the various stages of investigation and charges as would be expected of other US Attorneys as per these provisions.
It is therefore a matter for Smith himself to decide how to deal with any perception of an issue.
Following the appellate decision, going to trial could result in an acquittal. In which case the immunity question would be mooted. Why not go to a final judgment below? Find out. That is the norm.
Avoiding a trial is a judicial economy thing at the trial court level if there is an interlocutory issue that could moot having a trial. A DC appeals panel considered it. Letting the appellate decision stand is a judicial economy thing allowing the SC to process its docket in an orderly fashion as they may choose. It is a tradeoff, unless everybody believe a jury will convict, so decide immunity now. An interlocutory appeal, being extraordinary, should be addressed quickly and only as far as sensibly needed. The appellate court decision was carefully reasoned. Let it govern, go to trial.
Jack Goldsmith doubles down on his argument
https://x.com/jacklgoldsmith/status/1758118759267504224
“3/ If the Court grants and expedites, it would implicitly be accepting Smith’s claim that there needs to be a trial (assuming no immunity) before the election, i.e. accepting Smith’s political reasons for the rush to trial.”
Which Marcy correctly describes as bollox
“Bollocks. Sam Alito even implied you needed to have court cases b4 you could adjudicate 14A challenges.
There is a LEGAL reason for the rush: To ensure Trump gets due process before he is DQed, under the constitution.”
https://x.com/emptywheel/status/1758129142099304550
Due process requires due expedtion: ‘rush’ is Goldsmiths characterisation, to add to the sense of unseemliness he attempts to conjure.
Courts are well used to recalcitrant defendants attempting to manipulate and abuse judicial processes by creating delays and attempting to gaslight the public by creating a furore. Sad that Goldsmith is lending a hand to that under the guise of a fastidiousness which doesn’t bear scrutiny.
Right wing activist, Hoover Institution Fellow and holder of an endowed chair at HLS, describes Jack Smith as rushing to trial? Jack Goldsmith needs a new watch and new glasses, ones without the dark ideological lenses.
Goldsmith projects onto Democrats the right wing’s practice of weaponizing the law. Democrats aren’t actually very good at that. That’s a good thing, despite how it irritates critics who want Joe Biden to more harshly oppose the right’s abuses. But it’s Goldsmith’s conclusion that makes his argument laughable:
This Supreme Court majority’s conduct is many things, but refusing to violate norms is…not one of them.
Yep.
Also Goldsmith: “The Biden White House’s Violations of Justice Department Independence Norms”
About the jurisdiction. If SC thinks there is no jurisdiction for the court of appeals, then why they punted it to the court of appeals in the first place.
What a fucking circular logic.
Boom!
The jurisdictional issue was not apparent until American Oversight filed its amicus brief at the D.C. Circuit.
Now it is front and center: some nine pages of the court of appeal’s opinion distinguishes Midland. It could be very attractive for Roberts, if he has the votes, to find that the D.C. Circuit got it wrong, and that Midland is controlling.
First, it’s a quick and easy decision to write. Second, it obviates lots of decisional language on the merits of the immunity issue that might give some Justices heart burn. Third, it allows the Court to say “our hands were tied by precedent.” Fourth, it punts the merits of the immunity issue down the road. If it comes back post-conviction that is a very different posture and a Blassingame type resolution becomes more likely.
As Josh Gerstein points out, Friday is a conference day at the Court. We may know a good deal more about this very soon.
I find it revealing that there is so much suspicion and “casting of the runes” over what the presently-constituted SC is inclined to do and will likely do. Even among those of us who think it will be fast disposal of a “hot potato”, the reasonings used may be poles apart.
And yet, it’s not at all hard for anyone to see what the conclusion must necessarily be, namely that a US President is not above the law in any circumstance whatever, apart from civil suit during office.
(Some of the potential circumstances may heretofore have been regarded as so highly unlikely as not to be worth considering, but they could nevertheless be encountered in practice by the very kind of occupant of office from whom the Constitution and the general public need the greatest possible protection. Not unlike TFG.)
The firearm anarchists attacked a Super Bowl celebration in Kansas City. OT: but they may finally gone too far.
There is this tongue-in-cheek reference (p. 18) to “then-Attorney General William Barr[‘s]” reluctance, “to use the criminal justice system as a political weapon; ‘[i]t cannot and will not be a tit-for-tat exercise.’”
Another humdinger filed by Jack Smith and team that will be read and savored for years to come. Zinger after zinger hitting Trump arguments with paragraph-long sentences, refuting all of his bogus claims. The sentence structure is admirable.
So many words to say ‘Trumps’s got nothing’ but no more than necessary.
I tried reading Trump’s filing in Marcy’s link and winced through the Yogi Berra reference and was stopped short by the “President Trump” with no “former.” After that, my mind went blurry and I was unable to find anything credibly worth my time to read.
Here’s the docket for the case, in case anyone is interested in the amicus briefs:
https://www.supremecourt.gov/docket/docketfiles/html/public/23a745.html
The brief Tribe participated in cites Yoo, Bork, and Kavanaugh in support of the no-immunity argument.
Man, what a trio. I still can’t believe John Yoo wasn’t disbarred for his torture memo. Instead, he’s a prof at Boalt Hall. Shameful.
The Tribe rises to the occasion when Yoo Bork Kavanaugh
OT – UC Berkeley dropped the name “Boalt Hall” for its law school which now goes by “Berkeley Law”. Here’s a snippet from a campus news article: “John Henry Boalt’s virulent, anti-Asian racism fueled existing national prejudice against Chinese immigrants and led to Congress enacting the Chinese Exclusion Act, which, by 1902, led to a permanent ban on Chinese immigration. He also made isolated racist remarks about Africans brought to this country as slaves and about Native Americans.”
John Henry Boalt’s late 19th century vehemently racist rhetoric sounds a lot like Donald Trump’s lifelong rhetoric, especially, c. 2015 and continuing.
Good for Berkeley, though the article you mention soft pedals his vehemence: “isolated racist remarks about about Africans brought to this country as slaves and about Native Americans.” In the 1870s? A misleading understatement, at best, given how Boalt described Chinese immigrants.
Your pseudonym suggests that you know you should have cited your source. It’s easiest to just copy and past the full url, like this:
https://transcript.law.berkeley.edu/issue/fall-2021/name-removed-history-remembered/
Thanks, but a very long time friend of this blog is Dean of said law school. We know who they are.
Go, Erwin!
Would have been poetic justice if Tribe had cited Kenneth Chesebro.
PS: CSPAN’s In Depth series ended in December with an appearance by John Yoo, not with a bang but a tortuous whimper.
My favorite parts…..
And the public interest in a prompt trial is at its zenith where, as here, a former President is charged with conspiring to subvert the electoral process so that he could remain in office. The Nation has a compelling interest in seeing the charges brought to trial.
7 A sufficient basis for resolving this case would be that, whatever the rule in other contexts not presented here, no immunity attaches to a President’s commission of federal crimes to subvert the electoral process. See Amici Br. of John Danforth et al.
At my daily 20-second sample of Newsmax, some ‘defense attorney’ was telling the mouth-breathers that ‘speedy trial’ applies only to defendants.
I assume the same John Danforth who assisted the Thomas promotion?
And mentored Josh Hawley.
I do find it interesting that those that helped usher in Trump like Danforth and Cheney are the ones that are suppose to be our saviors.
I have the same feeling about Tom Nichols as I remember what creeps the young republicans were when I was in college during the Reagan era.
The enemy of my enemy is, at the very least, a distraction to my enemy. I don’t intend to forget the harmful policies certain politicians helped advance (as well as the crimes some pretty much got away with). But I also don’t disagree that Trump is almost single-handedly dismantling half of the established American 2-party system in ways that WILL have lasting implications extending beyond whatever his lifespan will be. I’d fight too if I thought the system I’d spent so long creating was being hijacked.
Yeah? Nobody will care more in 70 years about the people who were republicans than we care about the Whig party members.
By that logic we should not right now be dealing with the issue of Confederate flags and statues? Seriously, history isn’t as easy to ignore as people want to believe.
Carter-Reagan was my first Presidential election as a voter, and I voted a block from campus, waiting in line for a booth as the common room’s TV showed the networks calling the election for Reagan.
Back on campus, the Young Americans for Freedom were holding an impromptu rally/celebration in the Quad.
A harbinger, as it turned out.
Donald Trump is dissing our NATO allies again and again. At this rate he’ll be sure to get lots of help from Putin cronies for his election bid. Not to mention the sweetheart over-pays on his Trump property sales at Engoron’s behest.
Trump is an incredible security risk. Marcy is correct. We can’t only rely on Jack Smith to finish him off. Every one of us bears the burden to prevent his being re-elected.
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Putin is now saying he’d rather see Biden win than Trump, because he knows that is so implausible that western outlets will consider it “news” and then repeat it without sufficient context, and the result will be to influence a few low-information voters who hate Putin towards voting for Trump.
Putin is a master manipulator who would be absolutely thrilled to see Trump re-elected, after all the chaos and weakness of the U.S. that it caused during the first four years.
There could hardly be a better gift to Putin than electing Donald Trump, who would most likely complete the betrayal of Ukraine and also sabotage NATO. This would be an incalculable long-term disaster for the U.S. but there are apparently millions of Trump voters who are either too stupid to realize this or too selfish to care.
And Fani barges into the courtroom.
Must watch tv.
And boy is she belligerent. Jesus. Even the judge is scolding her, and for good reason.
Yes.
Hopefully she cools down some. Not much, just some.
Yes, and for good reason.
This is a bullshit hearing.
Let’s see if she gets asked if they did doggy, if she was over him or under him.
Maybe they’ll pull a pic of a dick and they ask her if this is a picture of his dick or Hunter’s.
It’s like she never took a class on witness preparation for cross examination
She has definitely created some problems for herself with her meandering self justifying answers.
Probably not enough to for the defendants to get home on, but she’s a real loose cannon in the court room.
I thought that when she attempted to get Floyd’s bond revoked
But this performance has been nuts.
Just like brain surgeons should not perform brain surgery on themselves. IANAL, but class on witness preparation wouldn’t have helped. It’s the reason no one should represent themselves and attorney should keep their client off the stand.
It is very difficult for lawyers to be witnesses.
I had to give evidence in police misconduct hearings in relation to misconduct in relation to evidence tampering I witnessed during a trial I had conducted.
It’s hard
By training lawyers read the nuances of opponents questioning to anticipate the implications of arguments (evidential, legal, procedural) which may subsequently flow in due course
Giving evidence is different
• your job is to GIVE FACTS in RESPONSE to questions
• listen to THE question, answer IT
• give it a FAIR answer but short- 2-3 sentences
• don’t GUESS at the DIRECTION- you end up answering not the QUESTION asked but defending yourself from
• don’t QUIBBLE, ARGUE or FENCE – a decent cross-examiner will slice and dice you
Fortunately for WILLIS only Sadow was a decent cross-examiner, unfortunately for her, her willingness to guess at what she thought were innocuous responses in her over eagerness to ‘appear’ an open book hung her partner WADE out to dry
Maybe Cross, who seemed a focused and able questioner can repair some of the damage. But WILLIS hurt WADE, and his scalp would be a win for the defendants
. He repeatedly gave answers about visiting her in 2021 wholly inconsistent with her eventual evidence making it even more apparent the compilation of the sworn documents in the DIvorce was dishonest. It is going to be very difficult for McAfee to find he was a credible and truthful witness in those proceedings and before him on important (but sub-issues)
WADE is likely toast, And WILLIS ego and carelessness turned up the flames on him.
*defending self from + ‘the next several questions which you think are coming, and in doing so you are usually wrong and unwittingly give up hostages to fortune’
The least, and worst, prepared witness I have ever seen in my life. And most belligerent too. Was simply amazing. What you noted are basics given to any witness before even a depo. She couldn’t even do that.
Never seen anything like it.
Oh I have seen and cross-examined plenty of civilian witnesses including government ministers who have gone off the rails.
But witness preparation in E&W courts is much more restricted by professional rules and legal practice which essentially bans ‘witness coaching on the substance of testimony’ than is permissible in US courts – so drilling witnesses in the simple general rules is permissible, practice examination (whether direct or cross) on the substance of testimony isn’t. Expert witnesses, police officers, civil servants etc who are expected to be frequent flyers attend training seminars etc with mock exercises to develop the skills at evidence presentation.
Fani Willis’s preparation of herself pacing about her room, running to court, barging in and attempting to take over proceedings was a shitshow.
Mild mannered McAfee waliking off the bench after admonishing her twice is not how she would have been treated at the Old Bailey, nor I imagine in any Federal court.
I can’t believe (well I can) how tv lawyers have lauded her performance as ‘powerful’.
As “powerful” as any of Trump’s no control of self in court.
I wonder how much the jury would have awarded Carroll in the first trial if Tacopina let him on the stand. Probably wouldn’t have needed a second trial.
Is her father better prepared?
Not better.
Her father is a natural.
Merchants cross is woeful
Father comes across as high powered international civil rights and humanitarian lawyer who doesn’t take shit from anyone and has nothing to prove and nothing to hide. Talked about Willis’s previous partner/love interest in 2019-2021 and only met Wade in 2023.
Sadow was much crisper and elicited that Willis kept her relationship with Wade a secret from her father
But because of the threats, father only saw her 13 times in 2 years and he didn’t want to know where she lived so he couldn’t be forced at gunpoint to reveal it.
Lol, no not so much. Sorry, a day late with this. It is not easy to use this blog anymore.
How is Wade likely toast from her testimony? Did you see his testimony?
There’s a circus in the circuit…
Did you see how the judge dismissed one of the defense counselors from the lectern when said defense counsel kept trying to barrel-ahead after being told not to?
“She’s not listening to me, Judge!”
“I know how you feel—you’re not listening to >me< so you can sit down now!"
*defense counsel walks back to his seat, head down*
Trump has just filed a response to the response.
https://www.supremecourt.gov/DocketPDF/23/23A745/300749/20240215174027604_2024-02-15%20-%2023A745%20-%20Reply%20iso%20Application%20to%20S.%20Ct.%20for%20Stay%20of%20D.C.%20Circuit%20Mandate.pdf
The quick response seems like a tit-for-tat, a keeping up with the Smiths speedy filing. Trump is probably also worried about losing control of the news cycle. And it does tee up the case for possible consideration at tomorrow’s S.Ct. conference.
But the quick reply supports the argument that a speedy trial would not prejudice a guy who can pay eight lawyers to file a single brief, or find eighty more to deal with his multitude of trials.
Another source for the reply is here:
https://s3.documentcloud.org/documents/24429175/23a745-reply.pdf
Paging Amicus12 ! (grin)
In your post above, before Team Trump filed this “reply”, you said it appeared the stay request was fully briefed. Are they even allowed to file this? Is Team Trump getting yet more special treatment here?
It’s at the discretion of the Court, but allowing a petitioner to file a reply is not an abuse of it, or a special favor to Trump.
IANAL, but I found this SC filing in a totally different case:
States’ Reply In Support Of Their Application For A Stay Pending Certiorari
which gives me the impression that this must be allowed. (I am guessing if the Chief Justice asks the other party to respond to the application for a stay, then the applicant is also allowed to reply. But I don’t know where to find the rules for such things, or how to read them correctly)
[edit: Thanks for that info, earlofhuntingdon !]
That case isn’t relevant. But you’re right and I was wrong, in part: “Any petitioner may file a reply brief” but only to address, “new points raised in the brief in opposition.” Rule 15.6 of the S.Ct. Rules. The reply should not simply rehash arguments raised in the petition for cert.
Trump’s reply brief, for example, just rehashes arguments he already made.
Professor Vladeck has an “X” comment explaining that it is discretionary with the Court, and sometimes coordinated with the clerk’s office. (Rule 15 is limited to the briefing of cert petitions and technically Trump has not done that, although the Court sometimes treats stay requests as cert petitions because – well they’re special and can do what they want).
Acting fast is not part of the Trump playbook, so it may well be that they reached out to the clerk’s office and were told that if you want to file a reply get it in before Friday’s (today) conference. Which is another signal that Roberts is going to (or has already) brought this up for discussion with the full Court today.
Thanks for the further correction. It rather fits with Jack Smith’s request, in the alternative, to treat this request for a stay as a petition for cert.
This argument from Trump is inconsistent with his characterization of Youngstown Sheet & Tube:
Trump had earlier wrongly argued that the Youngstown case held that courts only had jurisdiction over subordinate executive branch officers, not the President. In reality, the Court held in Youngstown that the President’s attempt to temporarily seize control of private steel businesses was unconstitutional – something he could not do.
I’ll have more to say about Trump’s immunity gambit later. I just wanted to drop in and say that I didn’t think there was any way that my opinion of Jack Goldsmith could get any lower. And yet, the way he lets himself be used by Trump (specifically in Trump’s reply to Smith’s Response) tops what he did to get a job in the Bush White House. And what he did to get his job working for Bush was to paper over an obvious grave breach of the Geneva Conventions. He made up a fake justification to excuse a war crime of the absolute worst sort.
This is worse than that.
I think Trump is ephemeral and that Goldsmith’s work is intended to promote the interests of his and Trump’s temporarily overlapping patrons – and to raise future generations of HLS-trained, hard right lawyers.
Yes, the Jack Goldsmiths of the serious Right have always tried to differentiate themselves from, say, the Byron Yorks of the performative Right, who try to distinguish themselves from, hmmm, the Jim Hofts of the insane Right.
Yet, here they are, Goldsmith/York, now and forevermore joined at the lip, in the pages of a Trumpist Supreme Court response. Can Hoft be far behind?
TRUMP uses Goldsmith’s article in the 1st footnote of his new filing:
Brad HEATH link to filing and THREAD, here:
https://bsky.app/profile/bradheath.bsky.social/post/3klii5x4zws2g
Feb 15, 2024 at 5:55 PM
TRUMP quotes that Goldsmith article 5 times.
I’m sure the timing of Goldsmith’s article is pure coincidence. /s
Also Jack Goldsmith
“I agree with the D.C. Circuit’s conclusion in United States v. Trump that former President Trump is not immune from prosecution for criminal acts committed in office.
Nonetheless, I think the Supreme Court should review the case.
The main reason to grant certiorari is simply that, as Supreme Court Rule 10 states, “a United States court of appeals has decided an important question of federal law”—a former president’s immunity from prosecution—“that has not been, but should be, settled by [the Supreme] Court.”
An additional but less obvious reason why the D.C. Circuit decision is important is that it contains loose reasoning that will have a potentially large collateral impact on the construction of criminal statutes to burden the Article II authorities of sitting presidents. [quibble whether some language maybe misinterpreted as implicating the proper application of the Clear Statement Rule in cases where the rule applies]”
https://www.lawfaremedia.org/article/why-the-supreme-court-should-grant-certiorari-in-united-states-v.-trump
“Loose reasoning,” a classic faculty club put down. Here, it means I vehemently disagree with it.
Goldsmith is also arguing for delay, and feeding arguments to Trump. Contra Goldsmith, the Supreme Court should accept certiorari only if it feels the “important question of federal law” has not been adequately dealt with by the eloquent and exhaustive decision by the Court of Appeals.
You will know better than me, but Goldsmith’s stated concern in the article, that the ‘loose reasoning’ could affect the interpretation and application of the Clear Statement Rule in other circumstances seems to me to be entirely misplaced – because the statutes at issue in this indictment are applicable to Presidents and former Presidents, and there is no Clear Statement Rule question which has arisen at all.
I think your observation illustrates bmaz’s point: that Goldsmith can still blow legal shit out of his ass.
Yes, this is his fake justification for supporting Trump’s coup and ongoing assault on democracy. Even he admits it is bullshit:
before going to invent more bullshit about why the court should do it anyway. The telling point is that he never discusses a stay which is what Trump is asking for.
It is good to see that Jack has retained his ability to blow shit out of his ass.
“Complying with criminal law cannot plausibly be described as “ministerial” action that admits of no discretion,…”
A President has a choice between complying with the law and breaking the law. Any choice involves discretion. Therefore the result of any such choice is immune from prosecution.
Is that his argument?
It’s more a rationale…an irrational rationale.