Hoist By His Own Petard? Or, Does Jack Smith Have No More Authority Than Taylor Swift?

 

And: Did Jack Smith simply make up a “crime” for the persecution of President Trump?

With apologies to The Bard for the egregious offense of using a phrase from Hamlet in the title in the same sentence as the execrable Special Persecutor Jack Smith but a few developments in the last few weeks do seem to indicate that he may have “blown himself up” in several legally signifcant ways. To flesh out some of these events and their potential importance it is necessary to “get into the [legal] weeds” but hopefully the journey will prove worth the effort.

In an effort to gain as much clarity as possible out of the rubble left in the wake of the vicious lawfare being waged by Smith and his bosses, it might be helpful to survey some of the recent writings on the subject to determine if a tad bit of optimism may be warranted.

While there seems to be a new indictment of the former and, as many including yours truly think, next President, this piece will take a look at just two aspects of the so-called January 6 case filed in the Federal District Court in the District of Columbia. A decision in Trump’s favor on either one would likely put an end to Smith’s persecutorial rampage. A favorable decision on one of the two points carries the potential of upsetting the convictions and draconian sentences of many of the January 6 defendants, an outcome too delicious to even imagine much less hope for.

I. Did Smith Charge President Trump with “Crimes” Which Are Not Crimes At All?

Among the several sources of reliable reporting and analysis of developments coming out of the January 6 expression (for by far the largest portion of those who were arrested of their rights as American citizens to free speech and peaceable assembly) are two excellent journalists — Yes, Virginia, there remain in our America today a few of those — one of whom is Julie Kelley, probably the preeminent source of information we are not supposed to ask about much less know about concerning January 6. Another is Margot Cleveland, highly respected appellate attorney who writes for The Federalist.

Cleveland sets out a very clear and concise presentation of the question now before the Supreme Court in a column entitled SCOTUS To Rule If Jack Smith’s Get-Trump Charges Are Even CrimesAfter sketching out the background of how the question made its way to the High Court and how it may impact the DC case, she sets out the relevant provisions as follows:

Earlier this month, the Supreme Court agreed to hear Joseph Fischer’s appeal that presents the question of whether 18 U.S.C. § 1512(c) criminalizes acts unrelated to investigations and evidence that obstructs an “official proceeding.” Fischer, like Trump, was charged with violating § 1512(c) by engaging in conduct on Jan. 6 that obstructed the certification of the electoral vote.

The question for the Supreme Court in the Fischer case is one of statutory interpretation. Thus to understand the issue requires a detailed study of the specific language of § 1512(c). That section, titled “Witness, Victim, or Informant Tampering,” provides:

(c) Whoever corruptly — 

(1) alters, destroys, mutilates, or conceals a record, document, or other object, or attempts to do so, with the intent to impair the object’s integrity or availability for use in an official proceeding; or 

(2) otherwise obstructs, influences, or impedes any official proceeding, or attempts to do so, 

shall be fined under this title or imprisoned not more than 20 years, or both.

Fischer and Trump, as well as scores of other Jan. 6 defendants, were charged with violating subsection 2 of § 1512(c) by “otherwise” obstructing or impeding the certification of the electoral vote. In Fischer’s case, he asked the trial court to dismiss the § 1512(c) charge, arguing the statute only criminalized conduct that rendered evidence unavailable to an “official proceeding.” The district court agreed and dismissed the § 1512(c) count against Fischer. The government appealed to the D.C. Circuit Court of Appeals, which in a 2-1 decision reversed the lower court, with the two-judge majority holding that § 1512(c) criminalized any conduct that obstructed or impeded an official proceeding, whether that conduct impaired the availability of evidence or not, leading the Supreme Court to grant certiorari.

She then discusses the 2008 Supreme Court decision which may put an end to the damage done by Smith to the Rule of Law, Begay v. US, involving similarly vague language in a statute — in fact, the same word — in which:

The majority in Begay held the defendant’s prior felony DUI conviction did not constitute a “violent felony” under the “otherwise” language of the statute because “the provision’s listed examples — burglary, arson, extortion, or crimes involving the use of explosives — illustrate the kinds of crimes that fall within the statute’s scope,” and “their presence indicates that the statute covers only similar crimes, rather than every crime that ‘presents a serious potential risk of physical injury to another.’”

In reaching this conclusion, the Begay court stressed that in interpreting statutes, courts must seek “to give effect … to every clause and word” of the statute. The majority further reasoned that if the “otherwise” language meant to cover all crimes that present a “serious potential risk of physical injury,” there would have been no reason for Congress to have included the examples.

It seems to me, as it did to Cleveland, a lawyer with extensive experience in Federal Appellate Law and Procedure, that the Begay ruling should compel a similar conclusion in the Fischer case that 1512©(2) only criminalizes conduct that “otherwise” obstructs an “official proceeding”:

The conduct prohibited by subsection 1 of § 1512(c) all concerns the impairment of evidence for an official proceeding, by criminalizing the alteration, destruction, mutilation, or concealment of “a record, document, or other object…” Thus, under Begay’s reasoning, to constitute a crime under subsection 2 of § 1512(c), the indictment must charge that Fischer (or the other defendants) “otherwise” impaired evidence for use in an official proceeding.

For those wishful thinkers (and I am firmly in that number) who may see these developments as offering a real hope that there may finally be an end to this totalitarian barbarity, Julie Kelley, in 2024: All Eyes on SCOTUSsounds a very well founded note of caution:

Not every case before SCOTUS next year will have originated at the DOJ. Republicans just filed a petition before the highest court seeking to overturn the Colorado Supreme Court’s order removing Trump from the primary ballot. Justices can put a stop to the 14th Amendment “insurrection” nonsense, halting the Left’s abuse of the provision to keep Trump and other “insurrectionist” Republicans out of office.

But what if they don’t? That’s the nagging question in the collective mind of the MAGA Right—will the court balk on every controversial matter from presidential immunity and the 14th Amendment to 1512(c)(2) and beyond? The recent conduct of Brett Kavanaugh and Amy Coney Barrett, not to mention the historical conduct of Chief Justice John Roberts, does little to inspire confidence among the base. Nothing, even the most layup case, is a given.

A safe bet is the court will work hard to appear impartial, where half the cases go Trump’s way and the other half don’t. Deny Smith’s speedy cert motion but also deny Trump’s challenge to the immunity order. Overturn Colorado Supreme Court but uphold 1512(c)(2). Toss out a few lower level J6 convictions but refuse to consider high-profile convictions for “domestic terrorists.”

At a time when the scales of justice are so unbalanced, a self-conscious SCOTUS seeking to appear balanced might be the most dangerous threat of all.

For one of the best discussions I have seen of the Kafka-esque maze of procedural twists and turns this case (and many other January 6 cases with it) one should turn to a blog piece entitled Is The Supreme Court Derailing U.S. v. Trump Without Leaving Any Fingerprints Behind? by Bill Shipley, writing as “shipwreckedcrew” on Substack. The author is a higly respected attorney whose special credentials include being Defense Counsel for a January 6 defendant. Here, after his thoroughly researched analysis, is his prognosis of where all this is headed:

But the one anomaly in this sequence of events that is unexplained — but makes sense under this scenario — is the decision by the Court to announce it would hear the Fischer case the morning after the D.C. Appellate Court exposed nakedly partisan motives by advancing consideration of Trump’s appeal of the immunity issue for sole purpose of trying and preseve the March 4 trial date.

By saying the very next morning that it would take up the case seeking review use of the criminal charge at the heart of the D.C. District Court case against Trump, the Court basically “called and raised” the Appellate Panel’s bet. It did so without tipping its hand on what it might ultimately do regarding taking up the immunity issue itself, or what schedule it might put in place if it does so.

The Fischer case will play out at normal speed. and the Court can always stay lower court proceedings while it considers the question on the basis of “judicial economy” and not expending resources unnecessarily.

I’m going to stick with the prediction I have made and repeated since the March 4 trial date was first set — the case filed by SC Smith in the District of Columbia will not go to trial on March 4, and I do not think it will go to trial at any time prior to the November 2024 election — if it goes to trial ever.

We know that Mueller and Weismann and their pack of attack dogs spent over 30 Million Dollars of our money to get Trump and every single dollar of it just circled the drain as they never got even close to their declared goal. Should this ruling come down in Fischer’s favor, and in turn in Trump’s and the many January 6 defendants whose convictions will be voided as a result, how much of our money will have been wasted this time to satisfy the vindictive revenge of Biden and his monumentally bitter Attorney General?

Moreover, and this pains me to say as a person who spent most of his life in the law, what does this say about the almost unimaginable incompetence and intellectual laziness of our once-respected Department of Justice? Is it a stretch to wonder whether the “brilliant” minds of our public attorneys were so consumed by TDS that they simply forgot to do the necessary research on this statute before charging these defendants?

Only time will tell. The question is how much time does our beloved Republic really have with madness like this in leadership positions? An entire year gives these amoral savages a dangerous amount of time to bring their campaign of punishment to frightening levels of uncivilized lawfare.

II. Jack Smith’s Appointment By Garland May Have Been Unconstitutional Per A Brief Filed By Former Attorney General Edwin Meese

Lest it be thought I was trying a little too hard to be “too cute by half”, at my age ludicrous by definition, I should note that the Taylor Swift analogy in my title was not my own but appeared, as we shall see later, in the conclusion of an Amicus Brief filed in the Supreme Court on December 21, 2023. I will also note that if you get all your news from the mainstream media you would have never known of this momentous filing which, if I may be excused for using a much-tattered descriptor, has the potential to be a real “bombshell” as opposed to those dozens of similar “explosions” we read about every day.

Trigger warning: to fully understand the power of this argument it is necessary to take another trip through those dreaded weeds, but I hope, again, what this argument could mean to the victims of what is arguably the most flagrant miscarriage of justice in American history will make the journey worth it.

The basis for this argument initially surfaced when then-Deputy Attorney General Rod Rosenstein appointed Robert Mueller as a “Special Counsel” giving rise to one of the sleaziest and most disgraceful periods in the law: Russiagate. However, at that time it was only advanced in legal publications but never as a formal filing such as the one now on record at the Supreme Court, with a similar filing recently in the Federal Court of Appeal for the District of Columbia. It is also interesting, to say the least, to note that largely left-leaning Court has instructed the attorneys in that case (the Trump immunity case) to be prepared to argue that specific point in Oral Arguments on January 9, 2024.

The heart of the argument is the “Appointment Clause” of the Constitution, Article II, Section 2, Clause 2, which provides as follows as to the powers of the President”

Article II, Section 2, Clause 2:

He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

Noting that Garland appointed Smith under the provisions of a statute and that the statute does concern the appointment of “Special Attorneys”, the Meese brief, according to Shipley’s analysis, sets out the argument as follows:

The Meese brief points out that while this authority to appoint “special counsels” may exist in a statute passed by Congress, that authority is nonetheless limited by provisions of the Constitution as to the individuals eligible for such appointment given the nature of the powers being conferred.  Because Jack Smith was a private citizen when appointed, never having been nominated by a President or confirmed by a vote of the Senate, he was not within the scope of individuals who could be authorized by AG Garland to exercise prosecutorial authority equivalent to United States Attorneys.  Any action by purporting to create such a position – or “office” — and vest it with the same authority as United States Attorneys in unconstitutional because it was not “created by law.”

***

The Appointments Clause provides for the appointment of officers “which shall be established by Law.” “Officers” are – obviously – appointed to “Offices,” and the “Office of the President” is the only office created by the Constitution.  Congress creates all other “offices” of the Executive branch by statute, hence the “established by law” language.

The power to create these offices and vest them with lawful authority is part of the “Necessary and Proper” Clause to carry into execution the powers conferred on the Executive.  Established by “law” has been interpreted to mean not by “regulation” or “executive order,” as only Congress passes laws.  Congress has the exclusive constitutional authority to create federal “offices.”  The Constitution does not give the President nor the heads of Executive Branch Departments the power to create “offices” to which individuals may be appointed.

Shipley’s post, Is Jack Smith An Illegitimate Prosecutor? Has Every Action Taken By Him Been Unlawful?, closes with these words which carry as much genuine, not illusory, hope as I have seen in quite a long time in these dark days of the Biden-Garland-Wray-Smith police state:

If the Meese brief’s argument is correct, then all the actions taken by Smith have been without lawful authority under federal law – beginning with the use of the grand jury in Washington D.C. to build the cases he has brought against former President Trump.  The outcome would almost certainly mean that the cases would be dismissed.

In our family, probably like yours, we have long used the old phrase “when something looks too good to be true it almost always is.” We can only hope that this may turn out to be one of those rare exceptions to that time-tested statement of wisdom.

Do I consider this a serious and very possibly successful argument which should dictate the end of Smith’s TDS-driven lawfare against the former President, designed to deny 70-75 + Million American citizens the right to choose their candidate for President of the United States? Absolutely.

Am I realistic enough to recognize the possibility that only a few Justices would agree and vote to void every single act of Smith, considering the difficulty in predicting what the Chief Justice and one or two of the “Conservative” Justices would do in the final analysis? Absolutely.

However, as I started with The Bard it may be fitting to return to Hamlet to say of the hope that this argument will be successful:

‘tis a consummation

Devoutly to be wished.

God Bless America!

Published in General
This post was promoted to the Main Feed at the recommendation of Ricochet members. Like this post? Want to comment? Join Ricochet’s community of conservatives and be part of the conversation. Join Ricochet for Free.

There are 42 comments.

Become a member to join the conversation. Or sign in if you're already a member.
  1. kedavis Coolidge
    kedavis
    @kedavis

    We just have to hope that the lawyers arguing Trump’s (and our) case are as on-the-ball as you are.

    • #1
  2. DonG (CAGW is a Scam) Coolidge
    DonG (CAGW is a Scam)
    @DonG

    has 1512(c) 2 ever been used to prosecute someone before?   

    Context is important.  Here is the law:  It seems all related to evidence and the use of evidence.   I did a search of the US code and could not find any other law criminalizing delaying an “official proceeding”. 

    • #2
  3. Mad Gerald Coolidge
    Mad Gerald
    @Jose

    Jim George: Moreover, and this pains me to say as a person who spent most of his life in the law, what does this say about the almost unimaginable incompetence and intellectual laziness of our once-respected Department of Justice?

    How many graduated from Harvard Law School?

    • #3
  4. Muleskinner, Weasel Wrangler Member
    Muleskinner, Weasel Wrangler
    @Muleskinner

    Jim George:

    In our family, probably like yours, we have long used the old phrase “when something looks too good to be true it almost always is.” We can only hope that this may turn out to be one of those rare exceptions to that time-tested statement of wisdom.

    But isn’t the same more or less true for the other side?

    • #4
  5. Al French Moderator
    Al French
    @AlFrench

    Sec 1512(c) begins: “Whoever corruptly…”

    What the heck does “corruptly” mean? Is someone protesting what they believe to be an unfair election acting “corruptly”? SCOTUS will also have to decide that.

    • #5
  6. kedavis Coolidge
    kedavis
    @kedavis

    Al French (View Comment):

    Sec 1512(c) begins: “Whoever corruptly…”

    What the heck does “corruptly” mean? Is someone protesting what they believe to be an unfair election acting “corruptly”? SCOTUS will also have to decide that.

    Or maybe they won’t, if the case fails on other grounds.

    • #6
  7. EJHill Staff
    EJHill
    @EJHill

    I could be wrong but I think the Meese brief is a Hail Mary. The Congress has approved permanent and indefinite funding in the DOJ budget for Special Counsel investigations. To say that his appointment is unconstitutional because it doesn’t come with Senate confirmation is a stretch. By approving the money needed to run the office the Congress approves of the appointments.

    • #7
  8. DonG (CAGW is a Scam) Coolidge
    DonG (CAGW is a Scam)
    @DonG

    EJHill (View Comment):
    By approving the money needed to run the office the Congress approves of the appointments.

    I think this would come as a surprise to the 1200 officials/ambassadors and the federal judges funded by Congress and approved by the Senate.

    • #8
  9. Bunsen Coolidge
    Bunsen
    @Bunsen

    EJHill (View Comment):

    I could be wrong but I think the Meese brief is a Hail Mary. The Congress has approved permanent and indefinite funding in the DOJ budget for Special Counsel investigations. To say that his appointment is unconstitutional because it doesn’t come with Senate confirmation is a stretch. By approving the money needed to run the office the Congress approves of the appointments.

    This discussion is way above my paygrade but we have seen Hail Marys work.  Better to have tried and failed than never try at all.

    • #9
  10. Skyler Coolidge
    Skyler
    @Skyler

    I hope this becomes more well known.  

    • #10
  11. Jim George Member
    Jim George
    @JimGeorge

    EJHill (View Comment):

    I could be wrong but I think the Meese brief is a Hail Mary. The Congress has approved permanent and indefinite funding in the DOJ budget for Special Counsel investigations. To say that his appointment is unconstitutional because it doesn’t come with Senate confirmation is a stretch. By approving the money needed to run the office the Congress approves of the appointments.

    I covered, or tried to cover, that distinct possibility (probability?) in my post but here is where I would put my money if I were a betting man (many decades as a practicing, as opposed to a billboard, trial lawyer would argue that I am actually a betting man, but that’s for another day) and that is due to the most impressive legal and intellectual power behind the Meese Brief. Here is the cover page:

    No. 23-624 In the Supreme Court of the United States UNITED STATES, Petitioner, v. DONALD J. TRUMP On Petition for a Writ of Certiorari Before Judgment to the United States Court of Appeals for the District of Columbia Circuit BRIEF OF FORMER ATTORNEY GENERAL EDWIN MEESE III AND LAW PROFESSORS STEVEN G. CALABRESI AND GARY S. LAWSON AS AMICI CURIAE SUPPORTING NEITHER PARTY GENE C. SCHAERR Counsel of Record JUSTIN A. MILLER AARON C. WARD SCHAERR|JAFFE LLP 1717 K Street NW, Suite 900 Washington, DC 20006 (202) 787-1060 gschaerr@schaerr-jaffe.com Counsel for Amici Curiae

    Meese of course was once the Attorney General of the United States (back when that was a position of very high honor and respect as opposed to the thug in that position right now), Steven G. Calabresi’s credentials are:

    Steven G. Calabresi is a Visiting Professor of Law and Senior Research Scholar in Law at Yale Law School and Professor of Law at Northwestern University School of Law. He co-founded The Federalist Society and serves as Chairman of the Society’s Board of Directors. Calabresi also served in the Reagan and first Bush Administrations from 1985 to 1990. His research and teaching interests focus on federal courts, comparative law, and constitutional law.

    Gary G. Lawson’s credentials are:

    Gary Lawson obtained his JD from Yale University. He became a member of the faculty at Boston University School of Law in 2000, having previously spent eleven years at Northwestern University School of Law. He was honored with the title of William Fairfield Warren Distinguished Professor in 2022. Over the course of his career, he has authored or co-authored nine editions of a textbook on administrative law, another on constitutional law, five books published by university presses, and has contributed to more than one hundred scholarly articles covering a wide range of legal topics. Notably, his works have been referenced in nineteen opinions by Justices of the United States Supreme Court.

    Early in his career, Professor Lawson had the privilege of clerking for Justice Antonin Scalia, serving first at the Court of Appeals for the District of Columbia Circuit, and later at the United States Supreme Court. Additionally, he has played a significant role in the Federalist Society for Law and Public Policy Studies as a founding member and member of the Board of Directors, and he also contributes to the Heritage Guide to the Constitution as a member of the Editorial Advisory Board.

    In my view, those names represent a formidable level of intellectual power and legal wisdom and competence. It is worth noting that two of them, Calabresi and Lawson, both clerked for a Justice who will certainly go down in history as one of the greatest conservative legal scholars to ever serve on the Court, Antonin Scalia. 

    They consider this a most serious argument, not a “Hail Mary.” With respect, I will go with their argument and deeply believe that at least two Justices are very likely to go with it as well. 

    • #11
  12. Jim George Member
    Jim George
    @JimGeorge

    kedavis (View Comment):

    We just have to hope that the lawyers arguing Trump’s (and our) case are as on-the-ball as you are.

    Much appreciated. However, if you take a look at my comment # 11 you will get an idea of the overwhelming legal firepower arguing this particular point before the High Court. I do not really know anything about the lawyers representing Trump on the main case but if they are anywhere near this caliber I would have to say he has the creme de la creme representing him there. Thanks again, Jim

    • #12
  13. Skyler Coolidge
    Skyler
    @Skyler

    Jim George (View Comment):

    EJHill (View Comment):

    I could be wrong but I think the Meese brief is a Hail Mary. The Congress has approved permanent and indefinite funding in the DOJ budget for Special Counsel investigations. To say that his appointment is unconstitutional because it doesn’t come with Senate confirmation is a stretch. By approving the money needed to run the office the Congress approves of the appointments.

    I covered, or tried to cover, that distinct possibility (probability?) in my post but here is where I would put my money if I were a betting man (many decades as a practicing, as opposed to a billboard, trial lawyer would argue that I am actually a betting man, but that’s for another day) and that is due to the most impressive legal and intellectual power behind the Meese Brief. Here is the cover page:

    No. 23-624 In the Supreme Court of the United States UNITED STATES, Petitioner, v. DONALD J. TRUMP On Petition for a Writ of Certiorari Before Judgment to the United States Court of Appeals for the District of Columbia Circuit BRIEF OF FORMER ATTORNEY GENERAL EDWIN MEESE III AND LAW PROFESSORS STEVEN G. CALABRESI AND GARY S. LAWSON AS AMICI CURIAE SUPPORTING NEITHER PARTY GENE C. SCHAERR Counsel of Record JUSTIN A. MILLER AARON C. WARD SCHAERR|JAFFE LLP 1717 K Street NW, Suite 900 Washington, DC 20006 (202) 787-1060 gschaerr@ schaerr-jaffe.com Counsel for Amici Curiae

    Meese of course was once the Attorney General of the United States (back when that was a position of very high honor and respect as opposed to the thug in that position right now), Steven G. Calabresi’s credentials are:

    Steven G. Calabresi is a Visiting Professor of Law and Senior Research Scholar in Law at Yale Law School and Professor of Law at Northwestern University School of Law. He co-founded The Federalist Society and serves as Chairman of the Society’s Board of Directors. Calabresi also served in the Reagan and first Bush Administrations from 1985 to 1990. His research and teaching interests focus on federal courts, comparative law, and constitutional law.

    Gary G. Lawson’s credentials are:

    Gary Lawson obtained his JD from Yale University. He became a member of the faculty at Boston University School of Law in 2000, having previously spent eleven years at Northwestern University School of Law. He was honored with the title of William Fairfield Warren Distinguished Professor in 2022. Over the course of his career, he has authored or co-authored nine editions of a textbook on administrative law, another on constitutional law, five books published by university presses, and has contributed to more than one hundred scholarly articles covering a wide range of legal topics. Notably, his works have been referenced in nineteen opinions by Justices of the United States Supreme Court.

    Early in his career, Professor Lawson had the privilege of clerking for Justice Antonin Scalia, serving first at the Court of Appeals for the District of Columbia Circuit, and later at the United States Supreme Court. Additionally, he has played a significant role in the Federalist Society for Law and Public Policy Studies as a founding member and member of the Board of Directors, and he also contributes to the Heritage Guide to the Constitution as a member of the Editorial Advisory Board.

    In my view, those names represent a formidable level of intellectual power and legal wisdom and competence. It is worth noting that two of them, Calabresi and Lawson, both clerked for a Justice who will certainly go down in history as one of the greatest conservative legal scholars to ever serve on the Court, Antonin Scalia.

    They consider this a most serious argument, not a “Hail Mary.” With respect, I will go with their argument and deeply believe that at least two Justices are very likely to go with it as well.

    In the end, no one’s prediction will be something we can hang our hats on.  The Court will do what the Court will do.   We thought for sure that Roberts would sink Obamacare too.  

    • #13
  14. kedavis Coolidge
    kedavis
    @kedavis

    Jim George (View Comment):

    kedavis (View Comment):

    We just have to hope that the lawyers arguing Trump’s (and our) case are as on-the-ball as you are.

    Much appreciated. However, if you take a look at my comment # 11 you will get an idea of the overwhelming legal firepower arguing this particular point before the High Court. I do not really know anything about the lawyers representing Trump on the main case but if they are anywhere near this caliber I would have to say he has the creme de la creme representing him there. Thanks again, Jim

    That’s the problem, though.  I seem to be hearing/reading about Trump lawyers losing some arguments that seemed to have been made better on Ricochet than they were in court.  I end up thinking that maybe they’re losing on purpose because that way they get more billable hours, and it’s not like Trump is running out of money to pay them.  Either that, or they just aren’t very good.

    My argument would be further vindicated if Trump eventually prevails because of something like that amicus brief, rather than anything done by his actual lawyers.  Why didn’t THEY think of it?!?!?

    • #14
  15. Steve C. Member
    Steve C.
    @user_531302

    Ruling Smith’s appointment was illegitimate is an easy way for the court to cut the Gordian Knot. With the Roberts’s court, probably too cute by half.

    Trump is bound to lose any claim to immunity. Since Nixon, the court has tended toward restrictions.

    I think the 14th Amendment stuff is the easiest. No conviction equals no application of the 14th.

    • #15
  16. kedavis Coolidge
    kedavis
    @kedavis

    Skyler (View Comment):
    In the end, no one’s prediction will be something we can hang our hats on.  The Court will do what the Court will do.   We thought for sure that Roberts would sink Obamacare too.

    With the current composition of the court, Roberts is far less important.

    • #16
  17. kedavis Coolidge
    kedavis
    @kedavis

    Steve C. (View Comment):

    Ruling Smith’s appointment was illegitimate is an easy way for the court to cut the Gordian Knot. With the Roberts’s court, probably too cute by half.

    Trump is bound to lose any claim to immunity. Since Nixon, the court has tended toward restrictions.

    I think the 14th Amendment stuff is the easiest. No conviction equals no application of the 14th.

    The easiest counter-argument there is probably that – as with impeachment, for example – no criminal conviction is required.  Level of proof required is different, etc.  At least in the Colorado case they can point to the “trial” that was held there.

    • #17
  18. Skyler Coolidge
    Skyler
    @Skyler

    kedavis (View Comment):

    Skyler (View Comment):
    In the end, no one’s prediction will be something we can hang our hats on. The Court will do what the Court will do. We thought for sure that Roberts would sink Obamacare too.

    With the current composition of the court, Roberts is far less important.

    The point remains that the Court’s decisions are not always predictable.

     

    • #18
  19. kedavis Coolidge
    kedavis
    @kedavis

    Skyler (View Comment):

    kedavis (View Comment):

    Skyler (View Comment):
    In the end, no one’s prediction will be something we can hang our hats on. The Court will do what the Court will do. We thought for sure that Roberts would sink Obamacare too.

    With the current composition of the court, Roberts is far less important.

    The point remains that the Court’s decisions are not always predictable.

     

    True, there is some chance that even other “conservatives” will decide that it’s up to the states.  It may come down to if the states excluding Trump from the ballots weren’t going to go for him anyway, does it really matter if they stamp their feet and hold their breath when they were already blue?

    • #19
  20. Steve C. Member
    Steve C.
    @user_531302

    kedavis (View Comment):

    Steve C. (View Comment):

    Ruling Smith’s appointment was illegitimate is an easy way for the court to cut the Gordian Knot. With the Roberts’s court, probably too cute by half.

    Trump is bound to lose any claim to immunity. Since Nixon, the court has tended toward restrictions.

    I think the 14th Amendment stuff is the easiest. No conviction equals no application of the 14th.

    The easiest counter-argument there is probably that – as with impeachment, for example – no criminal conviction is required. Level of proof required is different, etc. At least in the Colorado case they can point to the “trial” that was held there.

    At a minimum, impeachment requires a majority of the House and two thirds of the Senate to declare the president is guilty of high crimes and misdemeanors. It is an affirmative act. 
    My point was, the court can make a simple statement: no charge, no conviction = no basis for any disqualification. 

    • #20
  21. kedavis Coolidge
    kedavis
    @kedavis

    Steve C. (View Comment):

    kedavis (View Comment):

    Steve C. (View Comment):

    Ruling Smith’s appointment was illegitimate is an easy way for the court to cut the Gordian Knot. With the Roberts’s court, probably too cute by half.

    Trump is bound to lose any claim to immunity. Since Nixon, the court has tended toward restrictions.

    I think the 14th Amendment stuff is the easiest. No conviction equals no application of the 14th.

    The easiest counter-argument there is probably that – as with impeachment, for example – no criminal conviction is required. Level of proof required is different, etc. At least in the Colorado case they can point to the “trial” that was held there.

    At a minimum, impeachment requires a majority of the House and two thirds of the Senate to declare the president is guilty of high crimes and misdemeanors. It is an affirmative act.
    My point was, the court can make a simple statement: no charge, no conviction = no basis for any disqualification.

    But didn’t that “trial” in Colorado result in a “conviction?”  That seems to be one of their claims.

    • #21
  22. Jim George Member
    Jim George
    @JimGeorge

    kedavis (View Comment):
    It may come down to if the states excluding Trump from the ballots weren’t going to go for him anyway, does it really matter if they stamp their feet and hold their breath when they were already blue?

    Well said. I just hope this is a summary of what will actually happen and that this madness doesn’t spread  to the purple states. If it does, we will no longer have a Republic when some Marxist loon in a Blue state like Maine can just decide on her own ipse dixit that because she is repulsed by Trump all Trump voters in her state must be disenfranchised. That will start the end times in my humble opinion.

    • #22
  23. EJHill Staff
    EJHill
    @EJHill

    Yes, the Meese group has impressive credentials. But so does everyone arguing the opposite. 

    • #23
  24. Jim George Member
    Jim George
    @JimGeorge

    EJHill (View Comment):

    Yes, the Meese group has impressive credentials. But so does everyone arguing the opposite.

    Nolo contendere. 

    • #24
  25. Bob Thompson Member
    Bob Thompson
    @BobThompson

    Jim George (View Comment):

    EJHill (View Comment):

    Yes, the Meese group has impressive credentials. But so does everyone arguing the opposite.

    Nolo contendere.

    @ejhill You do know that the federal government uses your tax dollars and as many federally employed attorneys as may be needed in their efforts to prevail in legal proceedings. I suspect since the extreme shift to contracting to do the actual work of government this is even more the case today. So skill and being right is not really their principal, but unprincipled, approach.

    • #25
  26. EJHill Staff
    EJHill
    @EJHill

    Bob Thompson: So skill and being right is not really their principal, but unprincipled, approach.

    Being right has always been a secondary function of lawyering. The first is to give your client the best representation in furtherance of their goals – no matter what those goals may be.

    • #26
  27. Bob Thompson Member
    Bob Thompson
    @BobThompson

    EJHill (View Comment):

    Bob Thompson: So skill and being right is not really their principal, but unprincipled, approach.

    Being right has always been a secondary function of lawyering. The first is to give your client the best representation in furtherance of their goals – no matter what those goals may be.

    And how do you square this with an oath to the Constitution?

    • #27
  28. kedavis Coolidge
    kedavis
    @kedavis

    Maybe SCOTUS will “punt” by ruling that Smith has no authority so his cases are vacated, and it comes late enough that there’s no time to start over with someone appropriately nominated.

    • #28
  29. Jim George Member
    Jim George
    @JimGeorge

    kedavis (View Comment):

    Maybe SCOTUS will “punt” by ruling that Smith has no authority so his cases are vacated, and it comes late enough that there’s no time to start over with someone appropriately nominated.

    ‘Tis a consummation devoutly to be wished.

    sadly, too much to realistically hope for from the Roberts court. 

    • #29
  30. kedavis Coolidge
    kedavis
    @kedavis

    Jim George (View Comment):

    kedavis (View Comment):

    Maybe SCOTUS will “punt” by ruling that Smith has no authority so his cases are vacated, and it comes late enough that there’s no time to start over with someone appropriately nominated.

    ‘Tis a consummation devoutly to be wished.

    sadly, too much to realistically hope for from the Roberts court.

    Actually I was thinking that the “punt” might be just what we’d get from a Roberts court, if they’re unwilling to be more direct and forceful, perhaps because of Roberts.  But Roberts is far less of a swing vote than he was before the Trump nominations, so I think there’s at least some room for optimism.  Unless you get a few others who decide that they’d rather stay out of it as much as possible, which could lead them to actually decide to leave it up to the states however big of a mess they choose to make.  Maybe bring the “Stupid But Constitutional” stamp out of retirement.

    • #30
Become a member to join the conversation. Or sign in if you're already a member.