I listened to the Trump-Special Counsel appeals court proceeding last Tuesday, so I am aware of all the back-and-forth that occurred, but this is the best description / explanation of the significance of some of the questioning that I have seen.
Picking up at the best part, about halfway through the story. (The Atlantic)
For another, a public official might be acquitted in the Senate for reasons other than the merits of the impeachment charges against him. In fact, that’s exactly what happened at Trump’s second impeachment trial. As Special Counsel Jack Smith noted in his D.C. Circuit brief, “At least 31 of the 43 Senators who voted to acquit the defendant”—Trump—“explained that their decision to do so rested in whole or in part on their agreement with the defendant’s argument that the Senate lacked jurisdiction to try him because he was no longer in office.” Worse yet, as Henderson and Pan later pointed out during the argument, Trump’s own lawyers conceded to the Senate in February 2021 that, even if Trump were not convicted on the impeachment charges, he could still be criminally charged. Oops.
I could go on about the impeachment-judgment clause, and the members of the panel certainly did, but the bottom line is that Trump’s argument about that clause was frivolous, and not worth making. In fact, Sauer, by extending that argument to make a limited concession to Pan’s questioning about whether he was arguing that presidents could never be criminally prosecuted—remember, he said that this could happen if the president is first convicted by the Senate—unwittingly set a nasty trap for himself.
A trap that Pan’s brilliant interrogation shut tight.
The judge wasted no time in drilling into the implications and inconsistencies in Sauer’s position. Pan asked, incredulously, “Could a president order SEAL Team Six to assassinate a political rival? That’s an official act—an order to SEAL Team Six.”
To which Sauer replied, unresponsively, that a president would quickly be impeached and removed for that. This was followed by more unresponsive words from Sauer.
Pan wanted an answer—to the question she had asked.
pan: I asked you a yes-or-no question. Could a president who ordered SEAL Team Six to assassinate a political rival [and] who was not impeached, would he be subject to criminal prosecution?
sauer: If he were impeached and convicted first—
pan: So your answer is no?
sauer: My answer is a qualified yes.
The filibustering then continued, with Sauer rambling on about Department of Justice Office of Legal Counsel memorandums, James Madison, the abuse of the criminal process. Many words.
Pan interrupted again: “I asked you a series of hypotheticals about criminal actions that could be taken by a president and could be considered official acts and have asked you: Would such a president be subject to criminal prosecution if he’s not impeached and convicted? And your answer, your yes-or-no answer, is no?”
Sauer, realizing he was being cornered somehow, tried to avoid the door closing behind him. But Pan was having none of it. Like the experienced prosecutor she is, she insisted on an answer, and wasn’t going to let go. (If this judging thing doesn’t work out for her, I’d love to see her host Meet the Press someday.)
She and Sauer went around and around on this a few more times. But the damage was done, and Pan’s point was devastatingly made—in essence, that Sauer was arguing out of both sides of his mouth. On the one hand, Sauer argued that the Constitution gave the president absolute immunity for his official acts, lest we have political prosecutions of former presidents. On the other hand, if the United States Congress—a political body if ever there was one—effectively gives permission (by impeaching and convicting), well, then, yes, a president can be prosecuted, and—wait for it—he’s not absolutely immune.
It’s hard to know whether the criminal defendant, sitting at the counsel table, could understand enough of the dialogue to know that his immunity argument had completely collapsed, right then and there. But it had.
Sometimes during appellate arguments, there’s a moment when you know exactly how the court will come out. And this was one. I once had such a moment, fortunately in my favor. My one and only argument before the U.S. Supreme Court was in a case about whether federal securities laws could impose liability for securities transactions occurring abroad. I was arguing in the negative, on behalf of an Australian bank. My opponent was up first, arguing in favor of applying American law. I figured I had the conservative justices, but I was a bit less sure about the more liberal justices.
After some preliminary questions to my adversary about jurisdiction, the Court got to the merits. I’ll never forget it. Justice Ginsburg asked a question that was more like a statement: “This case is Australian plaintiff, Australian defendant, shares purchased in Australia. It has ‘Australia’ written all over it.” I don’t know whether I heard the rest of her question, or my opponent’s answer. But I knew right then and there, before having uttered a word to the Court, that my client had won.
As for the special counsel on Tuesday morning, he, too—like everyone else in the courtroom—knew from Judge Pan’s withering questioning and Sauer’s evasive responses to her that Trump is going to lose. The only question is how quickly it will happen. I have little doubt it will be soon.
By all accounts, we can expect to see the appeals ruling by this coming Friday. At that point we can expect to know whether the case is being thrown back to Judge Chutkan, and depending on the details of the ruling, it could be “full steam ahead” for the trial sometime in March, or it could mean more appeals and more delays. To “stay” or not to “stay”, that is the question. (Or at least one of them.) En banc hearing request, accepted or denied, Supreme court request, cert accepted or denied, etc. No matter how it goes, we will know a LOT more a week from now than we do today.
I looked into my personal crystal ball, and I am predicting an appeals court ruling on Monday or Tuesday, and if it goes the way I hope it will, this could well be another cake-worthy event.
Open thread.
Baud
DC Circuit only issues decisions on Tuesdays and Fridays, unless they plan to make an exception for this case.
WaterGirl
@Baud: I will tamp down my hopes for Monday then. Good to know.
Gin & Tonic
@Baud: Bunch of slackers.
Geminid
A friend who has been following the New York fraud case closely speculates that Judge Engoron will give his judgement as to the amount of fines the week after this one. I think that one’s gonna hit Trump where it hurts.
Anonymous At Work
Friday, then. Should give them time to decide on an unanimous decision. Probably “full speed ahead” rather than sending back for reconsideration. En banc denied, cert to SCOTUS will probably be denied.
My prediction is 3-0 for sending back for lack of jurisdiction on interlocutory appeal but 2-1 on merits to reject the notion entirely. Henderson will concur in part, dissent that she wants Chutkan to reach on merits under a framework of core vs. periphery official duties, to be re-heard by panel. SCOTUS will deny cert on the 3-0 and hold off on merits until post-trial (read: post-election, especially Senate), with the plot to reduce tensions as much as possible (read: postpone court-packing amid pending abortion judgements).
Alison Rose
@Geminid: Prediction.
Anoniminous
Can’t Trump take a conviction to the Supreme Court since they have jurisdiction under Art. III, § 2, as he is a citizen of Florida, thus a citizen of another state?
Anonymous At Work
@Geminid: January 26th, my bet. He’s got a list and maybe a topline number but he’s got to write his opinion and show his math. I don’t think TFG’s attempt to defend himself will change anything from $375M and Death Penalty.
MattF
OT. There is an open online database of bacteriophages where scientists may name and catalog their discoveries. The first rule of the database is ‘Do not name your phage after Nicolas Cage.’
https://phagesdb.org/namerules/
Alison Rose
@MattF:
Musk would beg to differ.
Anoniminous
@MattF:
In Genetics it’s an ongoing joke if a gene is named “Sonic Hedgehog,” “Boss (Bride Of Sevenless),” or “Swiss Cheese” & etc. it came from the Drosophila people.
Geminid
@Anonymous At Work: How soon will Trump have to start paying up? I’ve heard varying takes on this question.
I’m hoping he he’ll have to sell his winery outside Charlottesville. It would be nice seeing that “Trump Winery” sign come down. Ed. I don’t live near there any more, but I would take a trip down there just to see the space where the old sign used to be.
MattF
@Anoniminous: I knew a Drosophila person in grad school with thick curly hair. If she shook her head vigorously, a fly or two would fall out— “They’re sterile”.
Mr. Bemused Senior
My favorite: killer of prune.
HumboldtBlue
At this point, I just want the motherfucker gone. Prison, shot into space, left on a desert island, I don’t give a fuck, he’s been the topic of discussion every fucking day for eight goddamn years going on nine, and it’s not just tiresome, it’s enraging this criminal fuck hasn’t been jailed yet. No one in the history of this country has enjoyed such kid glove treatment from the justice system. Either convict the fucking criminal, or just move the fuck along.
Alison Rose
@HumboldtBlue: I know what you mean. I’m so fucking sick of so much of my mental space being taken up by this horrorshow of a supposed human being.
Anoniminous
@MattF:
If they weren’t sterile she would have been contaminating the lab thus experimental results.
wjca
@MattF:
@Alison Rose:
@Anoniminous:
You guys are all thinking too narrowly. Look at names from other languages. The more obscure the better.
mrmoshpotato
@HumboldtBlue:
How about either convict the fucking criminal, or throw Dump and his entire crime family into the Sun, and move the fuck along?
WaterGirl
@Anonymous At Work: I hope you’re wrong. :-)
The legal eagles have been saying that if the ruling is 2-1, then that slows things down considerably. And that increases the likelihood of the Supreme Court granting cert.
gwangung
@mrmoshpotato: Why is it “OR”?
feebog
If the D.C. circuit returns the case back for lack of jurisdiction, it sets up an interesting conundrum; Smith already tried to skip the appeals court and SCOTUS rejected his motion. If Trump tries to go directly to the Supreme Court for cert, how do they now accept the case?
Ken
In other Trump trial news, Judge Kaplan has filed a second order repeating his denial of Trump’s request to postpone the E. Jean Carroll trial, so that Trump can travel to Florida on Wednesday and attend his mother-in-law’s funeral. Kaplan also notes that Trump has scheduled a campaign appearance in New Hampshire on Wednesday, without further comment (other than the sarcastic subtext).
wjca
@wjca: PS For obvious reasons, the language of choice should probably be Georgian. That being the source of expertise for historical reasons.
mrmoshpotato
@gwangung: Good point!
Ken
@wjca: As a tribute to Terry Pratchett, someone should name a bacteriophage “Your Finger You Fool” in one of the hundreds of minor languages of New Guinea.
(The original Pratchett joke involved the intrepid explorer pointing at a mountain and asking one of the locals what it was. The region also had a river named “Who is this fool who does not know what his finger is”.)
KRK
Nothing will happen on Monday. It’s a federal holiday.
RevRick
@HumboldtBlue: How soon we forget Aaron Burr. Killed Hamilton in an illegal duel. Tried for treason in 1807, because of hinky dealings in the Louisiana Purchase with Gen. James Wilkinson, C-I-C in New Orleans. Conspired to overthrow Spanish power in Texas and have himself installed.
WaterGirl
@feebog: I’m not sure the Supreme Court WANTS the case.
If we are lucky, and they are smart, then the appeals court affirms Judge Chutkan’s ruling and then the SC can shrug and say it’s settled, nothing for them to look at, and deny cert.
Then the trial proceeds.
WaterGirl
@Ken: Trump being so disrespectful and treating judges as if they are fools and do not understand exactly what he is up to – let’s just say that Trump is not helping himself with any of this.
Trump thinks he is above the law and he thinks he can thumb his nose at the judicial system.
Perhaps the special treatment from Cannon allows him to delude himself?
Anonymous at Work
@WaterGirl: 3-0 on interlocutory won’t get disturbed. SCOTUS prefers to avoid jurisdiction where possible, and the justices have to rule on ballot cases and abortion cases. To grant Trump a pure out on criminal accountability would be too far.
Henderson will have merits dicta in a partial dissent, hopefully, so that Chutkan can rule on that aspect after trial.
Just my 2 cents. Never know.
Anonymous at Work
@Geminid: with appeals, sometimes around or just prior to 2030, I bet. With entire Trump Org overseen by a receiver until then, though.
trollhattan
@Baud: Plus, Monday’s a holiday.
TBone
@RevRick: Amen, brotha.
WaterGirl
@Anonymous at Work:
Totally agree with that. My concern is a 2-1 ruling.
WaterGirl
@Anonymous at Work:
Yes, that’s the consolation I have been hanging on to whenever I think about the fact that a win in court with a zillion dollar penalty won’t be enacted for years, until it winds its way through the courts.
But receivership in the meantime, that makes me (relatively) happy.
TheOtherHank
@Anoniminous:
When I was grad school I studied this weird little single celled algae. Each cell has two flagella that it uses to do the breast stroke through the water. The lab I was in studied those flagella. I worked on the funniest mutant name that organism has: bald. Bald mutants have some problem that prevents them from growing their flagella. That’s top flight humor in the Chlamydomonas world.
Meanwhile I knew fly people that worked things called Male Chauvinist Pigmentation (female flies have striping like males). Fruitless (originally Fruity) where males would try to mate with other males, so the matings were fruitless (bonus for the rename, they got to keep the same abbreviation).
bluefoot
@Anoniminous:
It’s not really a joke, it’s true. :) Despite not being at all systematic, I like the whimsy of Drosophila gene names.
I’ve thought it would be fun to have one of those tshirts that lists things say, “turnip, rutabaga, cabbage, radish & dunce”.
A couple of my favorites are “Indy” (I’m not dead yet), “eag” (ether a-go-go). And there’s “ken”, ken and barbie, named because mutants are lacking external genitalia.
Ruckus
@Alison Rose:
Who said it was human? I want proof because I think it’s possible that he’s a space alien in a crappy disguise, who nourishes itself off of orange makeup.
@HumboldtBlue:
Agreed. SFB takes up way, way, way too much space, airtime, court time, disgust, etc. The fact that anyone thinks this whatever it is has any positive attributes amazes me.
karen marie
@Geminid: It’s my understanding that Eric “owns” the winery. But he’s a defendant in this case too, so …
Geminid
@karen marie: Yes, and now that the Corporate Transparency Act is fully operational, courts can find out if Eric really owns the Winery, or if his father is the actual, or beneficial owner.