Monday, September 05, 2022

"Replying To Popehat"

I saw that tweet alone, at first, and it made me think of all the people frantically jumping on Popehat's feed (he's a big boy, he can take care of himself). But responses to this court ruling betray a certain amount of what really comes perilously close to "Trump Derangement Syndrome," defined here by me as "If Trump gets even one positive ruling in one hearing in one court of law, the Republic is done for and we might as well close up shop now." Viz:
"She's biassed and corrupt," sad Mystal. "Like, I don't know what to tell anybody anymore. I've been saying this since he took office. When you allow Republicans to control the courts you get nothing. Trump judges do not believe in the rule of law. They do not believe in precedent. They do not believe in facts. They do not believe in logic. They just believe in whatever will help Donald Trump and they've proven it again and again and again. So, when I say you cannot trust Trump judges. I don't know what more evidence you need for that fact, right?"

He went on to cite that the argument that Trump has executive privilege is so stupid that it's hard to explain.

"First of all, privilege goes to the current president," he explained. Trump's suit didn't even argue executive privilege, it argued attorney-client privilege. "We only have one president at a time. So, it's not Trump's privilege to have. But even if it was, as you point out, with Bill Barr who believes that the executive of the United States is something closer to a king than a president, even Bill Barr says that if he had a privilege, that privilege still goes with the government and not with Trump."

Barr said over the weekend that the idea that Trump has any kind of privilege over the documents is absurd.

"So, these documents belong in the Archives and it would be like Trump's call for executive privilege over the plane and then parked the plane, Air Force One, at Mar-a-Lago. Can't do that. Even if it was his, we have the right to take it back, but when you allow Trump judges to infect the system these are the kind of decisions you get," Mystal continued

His final point, he said is that the media needs to stop pretending that the Trump judges are the legitimate piece of the judicial system.

"They have to stop carrying water for them and start calling them out as they are, corrupt, leave behind gifts from the Trump administration to destroy the rule of law in America," he closed.

That's the most extreme example I can find.  Basically, reading from the bottom up, anything the media says that is not critical of Trump, is carrying Trump's water.  And anytime a judge doesn't tell Trump to pound sand, such judges are not a "legitimate piece of the judicial system."

Yeah, I'm not seein' that. And it's not like that's the only extreme position being taken on the intertoobs today:

Why are we the frog and this ruling the "boiling water" (the metaphor is false, anyway. People may be that stupid; frogs aren't.)? Don't think about it too hard. It's pretty much "minor victory for Trump means the world has ended and life no longer has meaning."

Back toward reason from that, there's a lot of very particular criticism of very particular holdings in this order, which is not a bad thing:

Not quite: Trump is entitled to return of his personal items if they are not considered evidence of a crime. The court's order rather explicitly states a special master is better positioned to make such decisions than the court spending lots of time doing that either in hearings or in camera. Basically what special masters are for. Whether one is actually needed here, is the pertinent issue. The Court does reference the "special nature" of Trump as FPOTUS. To me that indicates the judge is not ready for primetime, and is afraid of making a mistake where former President's are involved (see the earlier post about the judge trying to make this opinion bulletproof, because she fears the more technical examination of the 11th Circuit.). There really are a lot of problems with this opinion: Orin Kerr also brings back that jurisdiction issue I raised much earlier: Or, to put it more bluntly: That's not quite the legal argument I would go to court on, but the question of jurisdiction is one the appellate court can bring up sua sponte; and may well do. A ruling on that issue wouldn't address the deficiencies of this order, but it would vacate the ruling (if the issue of jurisdiction is decided the way I think it should be). I suspect there's a real balls-up here that the appellate courts (remember, judges see things differently than counsel does, on either side of the bar; and appellate judges have another viewpoint altogether) are not going to like if the DOJ brings it to them. Yeah, that's the real legal issue.

Trial court opinions have virtually no precedential value.  They can be guiding to another trial court, but they have no authority beyond the parties to the case.  This is a mess, and I don't think it survives its first encounter with reality (i.e., the 11th Circuit).  But, we'll see.
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