Oral Arguments In D.C.: An Incomplete Summary

 If you could listen to the appellate arguments, you’d notice that Trump’s lawyer was trying to defend the indefensible, while the DOJ lawyer is defending the government’s position. It is challenged, but he has answers.

Trump’s lawyer was just trying to keep his plates spinning. His argument centered on the legal term of art “core political speech.” By which he meant Trump’s speech, because he is a candidate for a party’s nomination for office, is absolutely protected in speech to say whatever he wants to.

Which is not what “core political speech” means.

Core political speech consists of conduct and words that are intended to directly rally public support for a particular issue, position, or candidate. In one prominent case, the U.S. Supreme Court suggested that core political speech involves any “interactive communication concerning political change.” Meyer v. Grant, 486 U.S. 414, 108 S. Ct. 1886, 100 L. Ed. 2d 425 (1988). Discussion of public issues and debate on the qualifications of candidates, the Supreme Court concluded, are forms of political expression integral to the system of government established by the federal Constitution. Buckley v. Valeo, 424 U.S. 1, 96 S. Ct. 612, 46 L. Ed. 2d 659 (1976). Thus, circulating handbooks and petitions, posting signs and placards, and making speeches and orations are all forms of core political speech, so long as they in some way address social issues, political positions, political parties, political candidates, government officials, or governmental activities.

It’s a little hard to fit Trump’s rants against the prosecutor and the judge under that umbrella. And Trump’s lawyer singularly failed to do it.

As I listen, DOJ is responding to questions about “so how does this work?”. The kinds of questions judges (or academics in oral defense of a dissertation; been there, done that) ask, without revealing (or, more accurately, being revelatory of) the conclusions of the judge.

Trump’s lawyer was simply flailing and refusing to accept the premise of some questions, because he simply couldn’t afford to. This led to some serious frustration from the panel. Asha Rangappa described Sauer’s problem this way:

I have never seen a lawyer avoid answering a hypothetical for THIS long. It's a pretty simple question. He doesn't want to answer it because he can't do so truthfully in accordance with his position AND please his audience of one.

I would only amend that Sauer is stuck with the actions of that party of one, and the facts that party has created. Besides, I’m pretty sure the Audience of One isn’t listening to this. His name doesn’t get mentioned enough.