Sunday, August 25, 2024

Just Noted In Passing

I just want to focus on this one paragraph from an interesting (and complex) analysis of the state of play in the DC case.  Let me just note the idea that Chutkan will rule on the "official acts" evidence rule the Supremes promulgated, or that the DOJ will file a superseding indictment, both raise complex questions which won't be soon, or easily, answered.  Bottom line: smart money, per the article, says nothing really happens until 2025.  There; now calm down, and consider this:

And neither of these stories fully address that, in most circumstances, this would not be Smith’s decision to make. Bloomberg says, “Chutkan could overrule Smith and order a major hearing prior to the election.” NYT describes that, “Judge Chutkan could in theory still order such a hearing to be held.” NYT does walk through the range of alternatives to do what SCOTUS ordered, that is, to sort through which parts of the indictment are official acts and which are not. But, in most circumstances, it was never Smith’s position to demand a public hearing, and nothing he ever said indicated he intended to do so. The goal of a mini-trial, as NYT reported, came from outside commentators.

Yes, the Supremes ordered Chutkan to determine "which parts of the indictment are official acts and which are not."  Normally, that would be done by an evidentiary hearing, because (as I've said) the Roberts court established a rule of evidence in Trump v USA based on the presumption of presidential immunity, but that "immunity" depends so much on the facts alleged, and which facts/evidence are admissable, that it amounts to a question of law as to the facts a trier of fact can consider.  It's a really messed up idea of immunity, IOW.  Anyway....

That means Chutkan has to determine what the official acts are from the allegations (indictment) and determine what are NOT official acts (and so not immune.  I'm tellin' ya, this is nuts.)  So:

a) she can set a hearing whensoever it pleases her to do so.

b) it may, or may not, be a mini-trial.  She could treat it like a summary judgment motion, for which a hearing is held but no evidence is presented.  The presumption at such a hearing is that all the evidence alleged or discovered (in a civil case) is held against the defendant, and it STILL isn't enough to carry the day (I'm skipping the terms of art for you; you get the idea).  IOW, she could review the allegations in the indictment, with briefs from both parties, and determine without hearing evidence that some allegations are "official acts," and other are not; as a matter of law.  Which is kinda sorta (who can fuckin' tell?) what the Supremes wanted.

c) the mini-trial idea was "from outside commentators."  Who said, in public comments, essentially

that Mr. Smith’s prosecutors could use a public hearing to air some of the evidence they had collected against the former president before Election Day. Several legal experts and commentators seized on the idea, saying that a hearing like that would almost resemble the trial itself — albeit without the finality of a jury verdict. 

To which I reply:  tell me the evidence adduced against Trump in the fraud case; or the NY criminal ("Stormy Daniels," although she wasn't the key witness) case.  Go ahead, I'll wait.

Better yet, tell me the evidence presented by the J6 Committee.  There was quite a bit of detail, a great deal of it damning about Trump's clear and present danger in being the spider in the dead middle of that web.  Lesser evidence, as James Fallows points out, convinced many Joe Biden was a drooling, driveling boob who had to go: 

Without benefit of so much as a public statement from any psychiatrist, psychologist, or elderly care specialist, about Biden's ability to perform the duties of the Presidency: But not even the NYT editorial board had a problem with that.  Yet a thorough report by the Special Committe on January 6th disappears without so much as a whimper?  What, tl;dr?  Or we can't mention it until Trump is convicted of the crime in a court of law?  Nobody talks about his 34 felony count conviction anymore, except Trump's political enemies.  As far as the press is concerned, that:

a) never happened; 

b) is "old news."

And yet an evidentiary hearing was going to shake the foundations of the republic and drive Trump from the public stage once and for all?  What Hollywood fantasy of the political process were those people dreaming about?  The one at the end of "Three Days of the Condor," where Robert Redford takes the information everyone has been trying to kill him to repress, to the New York Times where All Will Be Revealed?

You know there are people who still think Nixon got railroaded, right?  And that Trump was a good and successful president, mostly because he tells them so?  If Jesus Christ descended from heaven tomorrow trailing clouds of glory and every mountain was made low and every valley raised so all could see it even as if it were on the screen in their hands before their eyeballs, most people would deny it, ignore it, misinterpret it, or soon disregard it.  An evidentiary hearing, even with Trump testifying? Without cameras in the courtroom? (That issue is settled in the federal courts; don't count on it changing.)  Even with cameras, do you have any idea how dull courtrooms are, how poor the audio and video are from courtrooms that do allow cameras?  Must See TeeVee, it ain't.

Trump testified in the civil fraud trial. Thought he nailed it, too.  Any idea what he said?  Any idea why the judge disregarded damned near everything he said?  No, I mean specifically; in ways you think would convince the most die hard MAGAt Trump is a lying weasel.  No?  Then why do you think reports of a hearing in a case most people don't even know is ongoing, on an issue they haven't even heard about and wouldn't understand if you explained it to them, is going to save the Republic and blast Trump into space once and for all the way Ripley did at the end of "Alien"?

Get real.

Relax and let politics have its say.  That's the only way this was ever gonna resolve, anyway.
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