Finally, the Appeals Court Speaks

I haven’t read the decision yet, but finally the D.C. Circuit Court of Appeals released its obvious conclusion, that Trump does not have blanket immunity for his attempt to overturn the results of the 2020 election. Trump has until Monday, February 12, to appeal to the Supreme Court. and then we’ll see how long the SCOTUS sits on it.

Here’s the Washington Post story on the decision (no paywall). And here’s the New York Times (also no paywall). And here’s an analysis from Law & Crime.

In Other News: God’s Army, a.k.a. Meatballs for God, did manage to find the Texas border this weekend. What was supposed to be a mighty convoy of hundreds of thousands turned into about 200 befuddled guys in pickup trucks. Of course, it’s possible some of them got lost trying to find Texas. And some of them were disappointed they couldn’t find an “invasion.” They seem to have expected a bunch of armed banditos and drug runners swarming across the border. However, there were some vendors selling Trump merch, so the trip wasn’t a complete loss. One of the local residents said the only invasion around was the meatballs in pickup trucks.

Do read this USA Today article about it; it’s hysterical. Too bad the meatballs were a bit too late to fight these guys, by a little over a century.

To no one’s surprise, the bipartisan Senate border security bill was killed by Republicans in the Senate. They’ve come up with some lame excuses about “needing more time,” but the truth is that they’re killing the bill because Donald Trump wants it dead. And apparently some of the dimmer bulbs on the Right — which are barely flickering in the best of times — grew hysterical in the bellief that the bill would grant amnesty to asylum seekers — it would not — and so they ran away from it, shrieking.

David Frum at The Atlantic:

Sometimes, a negotiation produces a deal.

Sometimes, a negotiation reveals the truth.

Negotiators in the Senate have produced a draft agreement on immigration and asylum. The deal delivers on Republican priorities. It includes changes to federal law to discourage asylum seeking. It shuts down asylum processing altogether if too many people arrive at once. Those and other changes send a clear message to would-be immigrants: You’re going to find it a lot harder to enter the United States without authorization. Rethink your plans.

The draft agreement offers little to nothing on major Democratic immigration priorities: no pathway to citizenship for long-term undocumented immigrants, only the slightest increase in legal immigration. The Democrats traded away most of their own policy wish list. In return, they want an end to the mood of crisis at the border, plus emergency defense aid for Ukraine and Israel.

Yet Republicans in the House seem determined to reject the draft agreement. They appear poised to leave in place a status quo that one senior GOP House leader has described as an “invasion” and an “existential and national security threat.”

So what do Republicans really want?

Consider that Florida’s Republican-controlled House of Representatives has voted to allow 16- and 17-year-olds to work eight-hour days during the school year. Or that the Republican governor of Arkansas has signed a bill that relieves the state of having to certify that teenage workers aged 14 and 15 may work. Or that Ohio’s Republican-controlled legislature may soon pass a law allowing 14- and 15-year-olds to work as late as 9 p.m. on school nights. Or that Republican legislators in Wisconsin are pushing to allow 14-to-17-year-olds to serve alcohol in bars and restaurants. Consider also that all of these changes are written with teenage migrants very much in mind: Almost 40 percent of recent border-crossers have been under 18, a fivefold increase since the late aughts.

Those teenagers are traveling both alone and in family groups. They are coming to the U.S. to work. When state legislatures relax the rules on employing under-18s and under-16s, they’re flashing a giant we’re hiring sign to job-seeking teenagers around the world. The legislators know that. The teenagers know it. American voters should know it too.

Frum also discusses GOP opposition to aid to Ukraine and GOP opposition to negotiating with Democrats about anything. They basically don’t grasp the governing thing, any more than Trump grasps the law thing. “No need to reckon with the concerns and interests of people who disagree with House Republicans,” Frum writes. “Just somehow return Trump to the presidency: He’ll bark; the system will obey.” Yeah, let’s not.

Molly Jong-Fast writes at Vanity Fair that Congress looks like just another arm of the Trump campaign. See also David Kurtz at TPM, Trump Is Doing To The GOP What He Wants To Do To America.

19 thoughts on “Finally, the Appeals Court Speaks

  1. Oh wow, they didn't give Trump absolute immunity for any crimes he's commited…I guess we don't have a country anymore. What good is having a president if he's not allow to 'cross the line' every now and again?

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  2. Trump and his crack legal team got shot down again today in court and remains five kills away from ace status.  The tRUMP was quick to respond on social media and called the humiliating defeat a travesty of justice according to MSNBC.  So, we can guess he did not agree with the ruling.  No special immunity.  He does not like these rules.  Will he fight the ruling or throw a tantrum and take his crack team home? 

    Meanwhile, we await oral arguments to SCOTUS on the Colorado case of disqualification due to his special status as an insurrectionist.  No recusal by Judge Thomas yet as he (or his wife) decided this was not time for Clarence to show signs of development of good judgement.  I am awaiting the appearance of Rachael Maddow for this coverage.  You get the impression her presence signals the networks recognition of this as a big event.  This one is so easy, only the husband of an insurrectionist abettor could miss it.  We'll be popping corn for this one for sure.

     

  3. I haven't yet, but plan to read both the appellate court opinion and at least some of the links Maha provided. But to get in here earlier, I'd like to share thoughts on the two big cases. 

    First the immunity thing. As observers have noted, it will be significant what happens next. TFG will appeal the decision released today by petitioning SCOTUS requesting cert.  That will be done at the latest possible date (to buy as much delay as possible). So the key question is: What will the SCOTUS do? Three possibilities:

    1) Cert denied.  This is the best choice, because it allows the trial under direction by Judge Chutkan to proceed starting the next day after the denial. Defense will continue to attempt delaying tactics but the trial has the best chance to conclude before the fall of this year.

    2) SCOTUS agrees to take up the case, and decides to address it during the current term. This would have some good and some bad.  The good would be if they act quickly and affirm the lower court's decision. The good would include the finality of SCOTUS weighing in.  It would be bad if they take it up and they overturn the decision (which seems unlikely). I doubt they would overturn it by granting unlimited immunity to presidents. If they do, we are toast and our country becomes a client state of the world major autocracies, because a SCOTUS action of this kind makes clear that the Article III branch has decided to subordinate itself to dictators forever. Hard for me to imagine this as possible but it's probably not IMPOSSIBLE. Another path would be that they take it up and provide more detail about conditions in which presidential immunity would be constitutional and other conditions in which presidential immunity would not be constitutional. It is impossible to evaluate this possibility without seeing how they would split that out. It might have a small positive value by taking the wind out of the sails of those who buy TFG's blanket statement that lack of immunity kneecaps any future president.  But bottom line, I'd prefer option 1 to this one.  It's just that if they take it up and give it priority on the schedule, I'll have to nervously hold my breath awaiting their ruling.

    3) They agree to take the case but say that they don't have room on their schedule, so it will have to go to the next term (which starts September of this year). The would guarantee that the entire nation of voters will be denied having a legal conclusion on any of the indictments before the election. To me, this would be almost as bad as the variant in #2 where they take it up and rule (in the current term) that TFG is immune from the Jack Smith indictment. Imagine this scenario: That the judicial branch decides to allow TFG to run and says the 14th amendment question can be used if he wins the electoral college to disallow him being sworn in. (Ie. it doesn't apply to being on the ballot; it only applies to "holding" the office.) Two possibilities ensue: a) If the R's manage to gain 2/3 of the House & the Senate they will be able to remove TFG's disqualification shortly after their early January term begins.  Highly unlikely.  b) TFG's ticket wins, he quickly resigns, and his VP gives him a complete pardon covering all cases current and future.

    This is why I'm going to feel a whole lot better if the SCOTUS denies cert (option 1).

    The other big case (Colorado's 14th Amendment case): I'll wait til later to comment.  

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    • I'm hearing that the Appellate court specifically based their decision on the case before them as it applies to Trump, and noted that distinction in their ruling They purposely avoided a ruling on the concept of presidential immunity on the whole. Seems they don't want to open up that can of worms with all the potential possibilites granting immunity or further delaying Trump's appointment with accountabliity. Save the big question for another day. That tells me, they intended to foreclose any options for further appeal. And that Trump's ass is now in a sling.

      My guess is that it's a good clean ruling and no other court is going to touch it. Motion denied!

      • I'm hearing that the Appellate court specifically based their decision on the case before them as it applies to Trump, and noted that distinction in their ruling They purposely avoided a ruling on the concept of presidential immunity on the whole.

        Well, sorta kinda, I guess. They do go into history and precedent and how presidential immunity has always been understood. They aren't making any claims that don't have precedent. 

  4. I'm watching 3 big things

    – How will the Democrats handle Trump controlling the Congress, with them refusing to get anything done, especially Ukraine. I'm not convinced it's over for Ukraine, but it could be, which would be monumentally bad. The border thing should be easy to smear Republicans' faces in it.

    – Jack Smith and Aileen "Loose" Cannon. How will she respond to 1) Trump's demand for more (fantasy) discovery, and 2) Smith's rebuttal. Will Smith finally get the lever he needs to eject this clown-judge off the case?

    – the Colorado 14th Amendment disqualification case. Anything could happen here.

    • I would love to call them "woke"!  

      I like to imagine it turning into a testicle-tanning infomercial, that would be the skit I would write for SNL.

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  5. In an interesting late-in-the-day development, the House failed to pass the Mayorkas impeachment. Two Republicans were bugged that the whole investigation failed to come up with crimes. RNC chair and Trump toadie has offered to resign. INO, this is Trump trying to scapegoat the RNC doe the Republican election failures in 2018, 2020, and 2022. Underreported is Trump's demand to debate Biden "immediately." I would have to check time stamps but I suspect the shiney object was tossed out to the press five minutes after the verdict from the DC appellate court as a distraction. 

    Highly agree with Wary Tale about the options from here. The two decisions Chutkin and the DC court) stand on firm legal foundations. There's nothing but fluff to Trump's argument. It's not worthy of review. The Supremes have denied review to a lot of lower court decisions that Trump wanted reversed.

    Highly agree with Moonbat re Cannon. Although she could just delay for Trump, she might assert her authority with a bad decision that gets her benched. IMO, Smith wanted to bring the J6 trial first but progress there is at the mercy of the Supremes. Jack Smith might dial up things in South Florida – he might get "uppity" with Cannon to provoke her into showing she's the boss. The trick will be getting her to do it on something that Smith can take upstairs in an appeal. 

    Re review of the total immunity claim and the 14th Amendment which are both soon on the high court's docket… The USSC is conservative – Trump is a fascist. They know the difference. Whatever doubts they had were settled on J6. The conservative court did not intervene for Trump between November and January 6 with a deluge of flawed cases. IMO, the majority on the court would have preferred Trump to Biden (until J6). And they didn't even try to question the election. Has Trump done inything to rehabilitate his image with the Supremes since 2021? Or has Biden done anything so egregious that the high court would undermine Biden for Trump with a bad ruling?

    It's just my opinion but if the conservatives on the court are political and want to tilt things for the GOP, why might best do that by removing Trump EARLY, forcing the GOP to select and promote a conservative who will operate within the limits of the Constitution. Some of you might discount this because of the awful rulings this conservative court has handed down. and I agree – awful is the word. But the "bad" decisions are what the majority thinks are Constitutional. Trump wants to take a flamethrower to the Constitution this time around. 

    No, I'm not predicting the Supreme Court will shut Trump down completely. I'm saying there's a powerful argument for doing it and that argument might be strong enough for two conservative Justices to side with the liberals and uphold the 14th. Thursday will be very interesting. 

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  6. Today was a good day!

    1 -The appeals court tells Stump "no immunity for you"

    2 – MTG's signature would be "achievement" the phony impeachment of the Homeland Security Secretary goes down in flames. They can't fucking count?

    3- #1 stump ass kisser RNC Chair Ronda Romney offers her resignation to the fat fuck!

    4- And finally one less no talent phony patriot load mouth "country singer" on earth to sully the once great art form of American Music!

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  7. 14th Amendment Colorado ballot access case.

    Before going into some details, I'll start by complaining about the right wing (specifically TFG) trying to assert that if he is disqualified and thus not allowed on the ballot, then "millions" of voters will be "disenfranchised."  This is a typical con artist tactic: misusing a word to make their ridiculous position seem legitimate.  I looked up the word "disenfranchise" and what it means is taking away the right to cast a vote from any number of people who would otherwise have the right to cast a vote. Enfranchisement and disenfranchisement have nothing to do with who is allowed to run for office and enfranchisement doesn't guarantee to any voter that they can vote for a disqualified candidate and have that vote count. Enfranchisement has to do with who gets to vote in elections. TFG claiming that if he's disqualified it would "disenfranchise" lots of voters is BS. 

    Section 4 of Article I of the Constitution grants to each state legislature the power to establish state laws and regulations around elections of member of Congress, but also grants to the US Congress the power to pass laws that impact those laws and regulations. I don't think that to date, the US Congress has established rules regarding the details of those elections, for example regarding the details of early voting or the administrative procedures protecting the integrity of absentee ballot voting. I think those kinds of details can vary from state to state.  But for all national offices (Pres/VP/Congress) a national election day is established for in-person voting. My point is that elections for Congress are in the domain of state governments; they are not nationalized.  Instead the Congress has established general guidelines to support general suffrage and to minimize chaos in elections for federal offices.

    Article II section 1 established the baseline "elector" process for the offices of Pres & VP and also establishes the baseline qualification limitations for those offices. Amendments passed later on add and or change certain aspects of those elections, for example the suffrage amendments, and the 14th amendment which adds some qualification conditions. But those elections are not nationalized. Again the states have authority over those elections of federal officers, but constrained by any federal laws duly passed by Congress and signed into law. To my knowledge, most of the commonly known laws around that are focused on enfranchisement/suffrage, in other words guardrails about who can be denied the right to vote. I don't believe there are any Congressionally established statutes that guide or constrain who can run for office. By that I mean that I think it is only the Constitution that addresses eligibility for federal offices, not federal statutes. I'm not a lawyer, so correct me if I'm wrong.

    I did find a small amount of summary description of federal laws / regulations regarding ballot access.  What I found was only focused on the role of political parties, particularly the treatment differing between the the major parties and so-called "third parties"… in short, the focus seemed to be oriented toward not having structural disadvantages to smaller third parties getting candidates on the ballot. I didn't see anything suggesting that any individual person who wants to run for federal office is guaranteed ballot access by federal law. In reality, the requirements for appearing on a ballot already vary from state to state, and are established by state legislatures, or by the office of secretary of state acting as a delegee of the state legislature. I'm not aware of ANY law, state or federal that establishes an absolute right for anyone who wants to run to be on a ballot. So, it is not surprising, but typically annoying, that TFG is acting like he is entitled to be on the ballot in every state, simply because he has "declared" (when in reality, his only rationale for running is to escape prison).  I believe that for each and every person who wants to run for public office, it is that person's responsibility to meet each state's eligibility rules (and administration thereof); and that burden should not be shifted to society in general, as represented by local and state governments.

    Each state determines ballot access for its elections. The US Constitution requires 14 years of residency in the US to be eligible to be POTUS.  What would happen if some but not all of the states allowed ballot access to a candidate who was born in the US but was living in various countries around the world for most of their life, but claimed 14 years of residency, without having absolutely clear evidence? Suppose the proper legal process in each state went forward and in some states the evidence was determined sufficient while in others it was determined insufficient. Decisions about eligibility for federal office are not criminal matters. If none of the states violated a federal law, but they came to differing conclusions, on what basis would the SCOTUS have any legitimate justification to get involved regarding ballot access?  For primary elections (which btw are really political party things, not government things), if you don't meet the requirements to be on the ballot, you're not on the ballot. Witness Biden in NH vs Biden in NC. The consequences of failing to do the stuff required to get on the ballot fall on the hopeful candidate, not on society in general. 

    SCOTUS has already taken the Colorado case. Why? Maybe they're going to do the honorable thing and just look at the questions of due process in the Colorado proceedings and give a thumbs up or thumbs down and avoid making any kind of ruling at all on whether or not TFG should be qualified or disqualified nationwide.  In any state that makes a decision regarding ballot access, the residents of that state can always kick out the Secy of State in the next election. Maybe that is the legitimate remedy if the state government administers its election in a way that pisses off its own voters. After all, the Colorado case was brought by a life-long Republican.  Maybe a vast majority of Colorado's voters would prefer letting the state Supreme Court ruling stand.

    Back to: Why did the SCOTUS accept the case? Possibly because to deny taking the case would not typically allow them to provide detail.  Usually they deny in one sentence. And maybe they decided that the 14th disqualification requires constitutional level clarification, e.g. how is it to be determined and who has jurisdiction?  Perhaps even the question of whether there is a constitutional requirement that the qualification decision should be consistent nationwide and have impact on ballot access. I have no idea what they are thinking.  Typically, they don't get involved in cases that have been through the lower courts.  They are not intended to be a "third bite at the apple" and appellate courts are not intended to be a "second bite at the apple"; in other words this is not a three strikes system where you can get the next level up to look at the evidence and reach a different verdict than the lower level reached.  It is instead a system of remedies around the process ("due process") so that a verdict that resulted from a flawed judicial process can have some remedy. TFG seems to think that since he has a lot of campaign money to pay for the appeals, then he can get 2nd and 3rd bites at the apple.  So there has to be something else going on with the SCOTUS rather than four or five of them not liking the lower court outcomes.

    Here are my questions: 1) Did Colorado's process leading to disqualification break any state laws about elections or ballot access? 2) Did Colorado's state judicial process violate the state constitution? 3) Did Colorado's process violate and federal election or ballot access laws? 4) Did Colorado's final ruling violate the US Constitution or deviate from any SCOTUS precedent on cases involving ballot access? 5) Does SCOTUS want to be the determiner whenever there is a question of disqualification under the 14th amendment?

    My take is simple:  If you want to run for federal office, make sure you don't do anything that could be construed as participating in, or giving aid or comfort to anything that could be construed as an insurrection or a rebellion against the authority of the constitutional government. Otherwise, you takes your chances. I hope the SCOTUS doesn't undermine that principle. We shall see.  

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    • Excellent, I especially like your complaint re: improper use of the word "disenfranchised"; implying THEY are the REAL victims of voting rights suppression.

    • I noticed in todays Supreme Court hearing on ballot access for an insurrectionist in Colorado that Justice Kavanaugh used the logic of disenfranchising voters if Trump is denied access to the Colorado ballot. I agree with your assertion that nobody is disenfranchised if Trump is kept off tthe ballot. They still have their right to cast a vote, just not for an insurrectionist. I would have been the one who was disenfranchised if Trump's coup attempt had succeeded along with 80 million other, wise and upstanding Americans.

       I find it highly offensive that that bag if shit citizen Trump tried to rob me of my birth right of having my vote count as an American citizen.

  8. "For the purpose of this criminal case, former President Trump has become citizen Trump, "

     That statement kinda reminds me of the French Revolution where after the overthrow of the monarchy everybody was running around addressing one another as citizen so and so to accentuate the concept of equality. Actually, they should have referred to him as comrade Trump. It's a little more succinct.

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  9. For decades, GOP electoral strategy has been based on Culture War issues.  That's largely how Nixon won in 1968 & 1972, but he may have learned it from McCarthy.  Since Reagan, the GOP has been completely dependent on Culture War glop to hide their real agenda, which has always been to undo the New Deal and reclaim political power for The Rich. 

    Sadly, that project succeeded, but of course, that success sowed the seeds of the civil war which is now ripping the GOP apart.

    The Tea Party was the first glimmer that the mob of anti-Democrats created by GOP/Fox propaganda was revolting against their Masters (GOP Donor Class), but with a Black Democrat in the White House, it was easy for the GOP to pull the Tea Partiers back in.

    But then Trump floated down from Heaven on that escalator in 2015 and broke the GOP.  He gave the Mob what they really wanted: Culture Wars without Social Security cuts; and trumpets instead of dog-whistles.

    Eventually, Trump installed the SC judges who finally did what the GOP had been carefully avoiding: they overturned Roe v. Wade.  The dog caught the car, and the GOP got beaten badly in the next two elections. 

    The GOP doesn't really want to "solve" immigration issues, for two reasons: one, having more workers – especially insecure, illegal ones – keeps wages (and *benefits*) down, and two, solving it would eliminate a *very* successful campaign strategy.

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    • "Trump installed the SC judges who finally did what the GOP had been carefully avoiding"  And I expect he is at this moment warming up his little thumbs to issue a reminder of who gave them their jobs.

  10. Matt Gaetz of Florida and other republican cronies issued a non-binding resolution about the Putin Puppet not being an insurrectionist.  The supreme court of Colorado has already ruled that he is an insurrectionist and has disqualified himself from being elected president.  I am not a lawyer, but I am told that ignorance of the law is not a valid excuse. If I was a house representative, or any other insurrectionist involved in trying to overturn the last election I would consider myself disqualified to run for any federal office unless I was allowed to by the provisions of the 14th.  There is no provision for a non-binding resolution to make an insurrectionist qualified to get elected. That was political theater and Gaetz and cronies deserve ridicule for their performance.  Non-binding resolutions are not court decisions.  We do know reality bending is part of the practices of the cult of the tRUMP: citizen, cult leader, and not immune from prosecution.  

    I have a hard time getting from a reading of the 2nd amendment to present laws and rulings, we will see how the SCOTUS gets it's originalist judicial philosophy reading bias to work on this one.  

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