Wednesday, November 10, 2021

Louder And Funnier

A pretty succinct statement as to why the courts are unlikely to so much as issue an injunction (they can't issue a stay, the trial court didn't rule in Trump's favor. There is no order to release that can be stayed; the court just declined to interfere with the process of the National Archives.). And this part of the order, which even I scanted, deserves more attention: The facts against Trump are actually pretty damning. I still don't see an appellate court ruling in his favor, or going to the extreme of stopping the release of the documents because Trump asked them to. There are equities on the side of the party moving for release (Congress, essentially) that weigh in here.  If the courts don't want to spark a minor constitutional crisis by jumping in the way the 5th Circuit** did over Biden's vaccine order (deciding the case without hearing arguments, essentially)*, they won't touch this dog of a case with a club.

Besides, there's stuff like this: Federal courts have their own rules of procedure (how you do things in court, like file pleadings or ask for an appeal.)  Each district and appellate court district has its own particular rules within those rules.  An attorney practicing in that district needs to know those rules.  Not knowing them is not fatal, but it doesn't speed your case or impress the court if you act the buffoon on such simple matters.  Like this:
Although requesting a stay is also pointless, since the court didn't direct the Archives to do, or not do, anything.  It just rejected Trump's request to tell the Archives not to do something.  You can't really "stay" that without ordering the extraordinary relief the court just spent 39 pages refusing to do.  And there's that Friday deadline, making another hearing in the trial court "impracticable," as the local rules have it.

There is, frankly, a lot of confusion on this point:
But the courts can't stay an order refusing to grant the relief Trump seeks without giving Trump the relief he seeks.  Kanefield understands that; sort of.
But the standard for issuing a stay still has to balance the equities and really serves to preserve the status of the parties until an appeal can be heard.  A stay in this case would just give Trump what he asked for the first time.  I don't see how the courts can do that without overruling the trial court on more substantive grounds than "We need to wait on this."  Trump is entitled to an injunction, or he isn't; and that decision needs to be made on more than "Friday is the deadline." Unless the appellate courts grant the relief Trump asks for, which requires more than a freezing of the status quo (which is what a stay for appeal is), those documents issue at 6 p.m. on November 12.

And Trump's lawyers may have made the whole matter blow up anyway:

Possibly the Friday deadline makes compliance with Rule 8 impracticable.  There's also the fact Trump is asking again for an injunction that was just refused, so....  Still, that's what motions for new trial are; asking the court to reverse the ruling it just made, and such motions are a general prerequisite to an appeal from a final decision.  This is an interlocutory appeal, which is generally harder to obtain.  Really, for all the entrails readings, we're back to this:

Yeah, in the final analysis, I think Trump is screwed. Then again, that legal opinion is worth what you paid for it.

*The D.C. Circuit or the Supremes would have to issue an injunction before 6 on November 12 to stop the release of documents, which is pretty fast service and puts the "extraordinary" in "extraordinary relief."  Trump's legal arguments are for shit, per the trial court; which penned an excellent order on why it shouldn't be granted.  An appellate court overruling that just for the sake of preserving the status quo would be an enormous interference in the matter, an unbalancing of the equities that would make the entire standard for granting an injunction a complete farce.  I won't go so far as to say it can't happen, but it would certainly, as Rangappa implies, be an assault on the separation of powers.

Still:  may you live in interesting times, eh?

**The 5th Circuit action was not bad because of the outcome (bad as that was, IMHLO), but because it acted peremptorily when there was no effective deadline (as in Trump's records case) to force their hand.  In short, there's not even a fig leaf of impartial objectivity in the action of issuing a permanent injunction and giving the government a short and clearly pro forma chance to respond.  On that basis alone I'd expect the Supremes to slap it down when it gets to them, while perhaps taking up the question of Biden's authority in this matter.  But who knows?
Posted by at

No comments:

Post a Comment

Subscribe to: Post Comments (Atom)