Tuesday, October 19, 2021


I’ve been gaming out Trump’s possible strategy in this suit. A TRO is not the necessary prelude to an injunction. So he can seek an injunction without asking first for a TRO.

But the TRO request indicates there is a true need, a requirement for the extraordinary relief of basically deciding the case before the case can be decided.  That's why granting interlocutory relief is considered "extraordinary."  If the court provides the relief, it's a ruling that the party asking is likely to prevail at trial.  It also means the relief should be granted before any further harm is done to the interests of the moving party.

But a TRO only lasts for 10 days.  Before that time there has to be a full hearing on a temporary injunction, which can last until trial.  The National Archives will release records on November 12, unless the court orders otherwise.  So if Trump wants to delay, maybe he should file his TRO request no sooner than November 1, or as late as November 2, if he really wants to play the delay game to the hilt.  One delay, then the hope of another.  On the other hand, why not wait until November 12 to seek the TRO?  Why not lead the statute work for you, and extend the deadline by at least 10 days?

But the usual reason to ask for a TRO is because relief must be granted RIGHT NOW!  It's actually an ex parte proceeding, which means the relief can be granted without the other parties to the suit even being served yet (i.e., joined in the suit).  You aren't a party to a suit until it is filed (if you're the plaintiff) or until you are served (if you're the defendant).  A TRO indicates a serious need that cannot wait even for service of the complaint.  You can get the court to grant one with only your lawyers in the hearing.  That's also why it lasts only 10 days.  The other party(ies) need a chance to respond; they can make their arguments at the injunction hearing.  If you wait 2 weeks to seek a TRO, the court is unlikely to grant it ex parte.  It's also less likely to be persuaded this is an emergency that requires such extraordinary relief. So now you lose, and you have to go back to the same judge and seek an injunction, which the judge is probably even less inclined to countenance.  Your arguments for relief haven't gotten any stronger, and now you have a full hearing to contend with.

You also have to get it on the court's docket, and the court may not give you a hearing before November 12.  Likely they will, but you're really trying your luck on that. And if you file the motion too close to the statutory deadline, the court might feel you’re trying to force its hand. Without a court order, the documents can be released on the 12th, even if the court’s decision is pending.

This could all be moot by the time you read this.  Trump could have filed a motion for TRO as I'm typing, or before I sat down to type.  It's just telling that he didn't file one with the Complaint.  And it makes his bid to delay matters weaker and weaker as the hours and days tick by.  The closer he gets to that statutory deadline the more the courts will be inclined to think he's trying to game the system; and the less likely they will be to want to be played.  The suit is meaningless if Trump doesn't try to freeze the status quo; and the longer he takes to try that, the more the courts will be inclined to see this as gamesmanship, and even a cover-up, rather than a true concern with legal and/or constitutional principles.

Like I said, it matters how you ask, probably more than what you claim.

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