Monday, January 08, 2024

George Conway doesn’t try to predict what the Supreme Court will do.

 George Conway doesn’t try to predict what the Supreme Court will do.

The reason the Court had to take the Cuisinart question was because Trump and the GOP couldn’t find a dispositive legal proposition that the Colorado court clearly got wrong. 
In short, anything and everything seems to be in play, and the people who think the Court is going to reverse no matter what, or find a way to elide the issues somehow, may well be right. But many cases on appeal evolve during briefing and argument, and by the time oral argument is over on February 8, we may all be focused on an aspect of the case that hasn’t been developed yet. Trump and his allies haven’t found the magic answer, and those who think they have, or that the Court will do it for them, may well find themselves surprised in a matter of weeks. We’ll soon see precisely how great and how hard the case turns out to be.
The "Cuisinart question" is this:
Trump’s petition took an entirely different approach—one that didn’t conform with the ordinary rules and practices. His lawyers presented only one question, and it wasn’t a discrete or pointed question of law but rather a blunderbuss one: “Did the Colorado Supreme Court err in ordering President Trump excluded from the 2024 presidential primary ballot?”
"Ordinary rules and practices” refers to a Supreme Court briefing rule that requires petitions to state the legal questions the party wants to present for review. The Colorado GOP did this (they have an interest in who’s allowed on their primary ballot), and Trump filed a separate petition. The Court granted Trump’s petition, but not the GOP’s. As Conway points out, the quoted question is a purée of fact and legal questions. The usual practice when a petition presents a “Cuisinart question” like this is to reject the petition, or to rewrite the question. The Court took the petition without comment or clarification on what issues it wants addressed. And that, says Conway, is the odd thing.

Now some of that silence is probably (as Conway also says) due to the haste this case requires. The Court has set oral arguments for February 8. At least 5 Justices have to reach agreement on a conclusion (if not the reasoning; see, e.g., the Bakke decision) in a very short time. They haven’t had time to even reach agreement on what’s wrong with Trump’s brief. Conway also thinks the “Cuisinart question” indicates the weakness of Trump’s argument, even for Trump. Which deepens the mystery of what the Supremes will do.  

I think Conway’s conclusion is the most reasonable one. I stand by my analysis of the possible outcomes here; but everything depends on what issue at least five of the Supremes think is the dispositive one. I don’t think they’re going to find it in Trump’s petition, or his brief and arguments. As Conway says:
Trump, as we all know by now, has trouble retaining lawyers suitable for the tasks he presents them with, because lawyers value their reputations and their licenses. Just the other day, even Mark Meadows was able to hire a former solicitor general to bring a case to the Supreme Court. But the best lawyers won’t work for Trump.
And as he put it on “Morning Joe”: If the case looks terrible on paper (and paper is all the Supreme Court sees. Oral argument is no time to introduce your best case), that’s entirely down to the lawyers. 

Will the Supreme Court pull Trump’s fat out of the fire, or will it shoot for history and try to make a Grand Historical Constitutional Ruling? Or both and a little bit of neither?

Sure, why not?

In related (well, Trump related, anyway)  news, I don’t know how I missed this (I could blame Advent):
I knew he’d gotten slammed for paying off the Carroll judgment (without notifying or getting the approval of the monitor), but I didn’t connect that to the action of the appeals court. This means the only issues left are the fraud damages (and damages went up from $250 million to $370 million due to evidence presented at trial), and the pending question of whether or not Trump can still do business in New York.

Now, here’s the thing about final judgments (there will be one for damages eventually). They are truly final, despite appeals. An appeal can change it, but filing an appeal does not set aside the final judgment. An appeal bond does that by suspending execution of the judgment pending the appeal. The bond is usually in an amount set by law and equivalent (at least) to the judgment, so the victorious party doesn’t lose by the delay of the appeal.

Can Trump secure a $370 million bond? He’d have to be good for it, one way or the other.  So, basically, either way he’d have to pay the judgment; or at least be able to.

But the only questions left are how much his fraud will cost, and whether he gets to do business in New York. His fraud is a settled matter (yes, the high court of NY could reverse all this, but can Trump afford to wait for them?). The appeals court has to decide the business certificate question (which the State can appeal; this isn’t criminal court). Whether they review the final decision depends on the bond. The state is also entitled to maintain the monitor, so that’s another wrinkle.

Trump is still complaining that the appellate court ruled the case was barred by limitations, but Engoron is “ignoring” that ruling. He’s not only wrong, but he has absolutely no idea what’s going on. And this week he will attend oral arguments on his immunity claim in federal court. Like a dog, unless he hears his name mentioned, he’ll not understand a word that’s said.

He’s never even going to hear the train coming. 🚊 
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