Tuesday, October 19, 2021

Running Out Of Time

In April, 1974, Leon Jaworski subpoenaed Richard Nixon for the White House tapes. Nixon took the case to court. By July, the Supreme Court had ruled against him.

4 months. It can be done.

I’m hardly a Constitutional scholar, but my quick review of the Complaint didn’t impress me. For example: And one wonders how serious this suit is: If Trump can’t get a TRO (yes, first he has to ask for it), it’s game over. If he does get it, he could still lose the temporary injunction hearing; also game over. Failure to win one or both of those means the court doesn’t think Trump can prevail at trial.

So this could go very rapidly. Without a TRO or TI, it’s over by November 12. Period. Analyses like this:
Frankly ignore that little point. Besides, the Mazars argument is not as strong as the pleadings claim it is (never rely on the pleadings for the state of the law):
So that's not the powerful "delay" argument Polentz (and others) think it is.  Worse still is the argument that the Presidential Records Act is unconstitutional if Trump can't exert executive privilege now that he's a private citizen.  The Nixon v. GSA case that Polentz mentions in her Twitter thread is arguably about that point, but it doesn't give ex-Presidents unbridled control of official documents they left behind when they stopped being official, and it came before the PRA, which was passed in part as a response to the GSA case.

The quality of the argument from Trump’s lawyers is no more impressive than this.

The other flaw in Polentz’ argument is that Trump is no longer in charge of the DOJ. The delays he won as POTUS are no longer available to him, not if the DOJ pushes for a resolution. They can actually make things move very rapidly through the courts if they choose to. Mostly Polentz is pushing the narrative that Trump wins because courts are slow. But they don’t have to be; and as 60 filed lawsuits showed, they can decide matters, in several courtrooms, in very short order. That delay narrative, in other words, is not a legal analysis.
It really does matter not just what you argue, but how. The delay narrative is not Trump’s superpower. If he can’t get some kind of restraint by November 12, he’s SOL. And he’s going to have to start with a motion pretty soon.  That can be filed; whether he can persuade a court he's like to prevail on the merits, is another matter.  This case doesn't just involve the issue of Trump's privilege claims, but the issue of an investigation of violations of law.  Executive privilege doesn't protect that. EOD.

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