#D.C. Circuit Court of appeals

[dreaminginthedeepsouth]

Mike Luckovich

* * * *

Jack Smith calls the question.

December 12, 2023

ROBERT B. HUBBELL

          Monday brought multiple positive developments for those who yearn for the courts to serve as a bulwark against Trump's effort to assume dictatorial powers. Let’s review the threads of hope that run through the judicial developments on Monday relating to Trump.

Jack Smith goes directly to the Supreme Court on the question of Trump's presidential immunity defense in the D.C. election interference case.

          Trump's primary defense against the 91 federal indictments secured by Jack Smith is delay. His claim of presidential immunity for all acts undertaken as president is not a serious defense but is structured to create delay. It is one of the few defenses that can lead to a pre-trial appeal—and lengthy delay of trial.

          Judge Chutkan denied Trump's motion to dismiss the D.C. election interference case, and Trump appealed to the D.C. Circuit. After the D.C. Circuit rules, the matter can go to the Supreme Court. Even with expedited briefing in both the D.C. Court of Appeals and the Supreme Court, that process might delay Trump's criminal trial until after the 2024 election.

          Everyone knows that Trump's claim of presidential immunity will eventually end up in the US Supreme Court, so Jack Smith called the question on Monday by asking the Supreme Court to take the case without an intervening stop in the D.C. Circuit. The procedure invoked by Smith has been used in extraordinary cases—including US v. Nixon.

          The historical background is discussed by Lucian K. Truscott IV in his excellent Substack newsletter. See Lucian K. Truscott IV, It's called the Nixon rule, and the Supreme Court should uphold it without delay (substack.com). I highly recommend Truscott’s analysis—so much so that I will assume you have (or will) read it so that I can skip some of the details he ably covers.

          Jack Smith’s petition is here: U.S. v. Donald J. Trump | Petition for Writ of Certiorari Before Judgment.

          Before addressing Smith’s petition, let’s skip to the end: Smith has undertaken a bold, brilliant, gutsy move that prioritizes the interest of the American people in knowing whether the leading GOP presidential candidate is a criminal before they are asked to vote for (or against) him in November 2024.

          Smith is, of course, taking a gamble by front-loading the ‘overwhelming question’ that will determine whether Trump is above the law. Framed as a two-part question by Jack Smith in his petition, he asks the Supreme Court to decide the following:

Whether a former president is absolutely immune from federal prosecution for crimes committed while in office, or

Is constitutionally protected from federal prosecution when he has been impeached but not convicted [in the Senate] before the criminal proceeding begins.

          The answer to those questions is plainly “No.” The questions posed by Smith can be reframed as, “In America, is any person above the law?” Again, the answer is plainly “No.”

          Given that Trump's defense is meritless and should be summarily rejected, Jack Smith’s petition poses the following question to the Supreme Court:

          Will the US Supreme Court aid and abet Trump's effort to overturn the 2020 election by delaying his trial until after the 2024 election—preserving the possibility that Trump will dismiss the prosecutions against himself if he is elected?

          Stripped to its essence, Jack Smith is challenging the Supreme Court to put its legitimacy and legacy on the line. Indeed, he is offering the Court the opportunity for partial rehabilitation. If they decline that opportunity, the justices will deserve the judgment of history that would follow a refusal to consider the matter on an expedited basis and rule that “No person is above the law.”

          Let’s now look at the procedural posture of the petition. Jack Smith is asking for two forms of relief: (a) to skip over the D.C. Court of Appeals by granting a “writ of certiorari” (a fancy word for appellate review), and (b) that the Supreme Court grant review on an expedited basis.

          In a positive sign, the Supreme Court ordered Trump to respond to Smith’s request for expedited review on Wednesday, December 20, 2023. As explained by Professor Tribe on Lawrence O’Donnell’s “The Last Word,” the fact that the Supreme Court ordered Trump to file on an opposition on an expedited basis suggests that there are five votes on the Supreme Court to grant Jack Smith’s request for expedited review.

          If the Supreme Court is inclined to grant expedited review, that is a very good sign. It suggests that Trump will be tried for election interference before the November 2024 election. Although a conviction is not guaranteed, Jack Smith will present evidence of Trump's guilt on the eve of the 2024 election. That is all we can ask for.

          But there is more good news. As Jack Smith was filing his petition with the Supreme Court, the D.C. Circuit Court of Appeals also indicated that it would move expeditiously by granting Smith’s separate motion for an expedited hearing before the D.C. Circuit. On Monday, the D.C. Circuit ordered Trump to file a response by Wednesday, December 13, in opposition to Smith’s request for an expedited hearing in the D.C. Circuit.  

          Here is the way to think about the dual proceedings in the D.C. Circuit and the Supreme Court. Unless and until the Supreme Court grants Jack Smith’s petition for a writ of certiorari, the D.C. Circuit retains jurisdiction over the case. If the Supreme Court grants Smith’s petition, the D.C. Circuit loses jurisdiction; if it denies Smith’s petition, the D.C. Circuit retains jurisdiction.

          In effect, Smith is on “two fast tracks” to review Trump's defense of presidential immunity. He has hedged his bets and called the question. Good!

[nationallawreview]

Dependent Work Permits – Is the U.S. Catching Up with Other Immigration Destinations?

There are many ways in which the U.S. immigration system is lagging behind those of other countries. We still put physical visas in passports – something Australia stopped doing nearly 10 years ago when they converted to a purely electronic visa system. Our immigration system is predominantly paper-based, with limited options for electronic filings, an area where other countries have fully…

[wilwheaton]

The Supreme Court has never definitively ruled on whether a president or former president can be criminally prosecuted for acts undertaken while president. That is because we have never had a president engage in the type of behavior Trump engaged in when he fruitlessly attempted to hang on to the presidency after he lost the election.

Trump's presidential immunity claim tests the D.C. Circuit Court of Appeals

Every single time we hear “this is unprecedented!” as if Shitler is some kind of victim who had nothing to do with any of this, I want to scream.

This is all unprecedented because we have never had a criminal like Trump attempt a coup to hold on to power, enjoy almost unwavering support and protection from his party, and then run again while he is facing NINETY-ONE different felony charges.

This is all unprecedented because there has never been an aspiring dictator like Trump in American political history, not even Nixon.

[minnesotafollower]

U.S. Should Release All Guantanamo Prisoners and Close Down

A New York Times editorial starts with the factual assertion that “30 men . . . [are] still imprisoned at the U.S. naval base whose name has become synonymous with American shame.” Although President Biden “said at the outset of his administration that he would seek to have the detention center closed . . . the moral imperative and the ethical case for doing so has only gotten stronger with…

[gusty-wind]

NEW 2024: House Administration Hearing On NON CITIZENS VOTING “This is a disaster what happened in pennsylvania that has not gotten enough attention” “Pennsylvania has been registering non-citizens to vote for 20 years, and they admit it. This is not subject to debate” “The question is was it ten thousand or a hundred thousand” For the voter records “We’re the third circuit court of appeals we've already won summary judgment but Pennsylvania is playing a keep away” “The D.C. Board of Elections held a call a few weeks ago encouraging non-citizens to vote in the municipal elections”

[beardedmrbean]

The Fourth Amendment's protection against unreasonable searches and seizures extends to the length of a seizure, a federal court ruled last week, significantly restricting how long law enforcement can retain private property after an arrest.

"When the government seizes property incident to a lawful arrest, the Fourth Amendment requires that any continued possession of the property must be reasonable," wrote Judge Gregory Katsas of the U.S. Court of Appeals for the District of Columbia in a unanimous ruling.

Most courts of appeal to pass judgment on the issue—namely, the 1st, 2nd, 6th, 7th, and 11th circuits—have held that, once an item is seized, law enforcement can retain the item indefinitely without violating the Fourth Amendment. These precedents have allowed police to retain personal property without clear legal grounds, effectively stripping people of their property rights merely because they were arrested. The D.C. Court of Appeals' ruling complicates this general consensus.

Though law enforcement does not have to return property "instantaneously," Katsas wrote, the Fourth Amendment requires that any "continuing retention of seized property" be reasonable. So while police can use seized items for "legitimate law-enforcement purposes," such as for evidence at trial, and are permitted some delay for "matching a person with his effects," prolonged seizures serving no important function can implicate the Fourth Amendment, the court ruled.

Given that the D.C. court finds itself in the minority on the question, some say that the case may be primed for the Supreme Court if the District chooses to appeal. "This case has potential to make national precedent," Paul Belonick, a professor at the University of California, San Francisco law school, tells Reason. "The influential D.C. Circuit deliberately intensified a circuit split and put itself in the minority of circuits on the question, teeing it up cleanly for certiorari."

The plaintiffs each had their property seized by D.C.'s Metropolitan Police Department (MPD). Five of the plaintiffs were arrested during a Black Lives Matter protest in the Adams Morgan neighborhood of D.C. on August 13, 2020.

As they were arrested, MPD officers seized their phones and other items. Though the protesters did not face any charges and were, in Katsas' words, "quickly released," MPD retained their phones for around a year. Some of the plaintiffs had to wait over 14 months to get their property back.

In the meantime, the plaintiffs say that they were forced to replace their phones and lost access to the important information on the originals, including personal files, contacts, and passwords. "The plaintiffs have alleged that the seizures at issue, though lawful at their inception, later came to unreasonably interfere with their protected possessory interests in their own property," Katsas explained.

"MPD is aware of the ruling and will continue to work with our partners at the United States Attorney's Office to ensure that our members are trained appropriately to ensure compliance with recent rulings," a spokesperson for MPD tells Reason.

"Practically, this case is important because police have been exploiting a gap in the Fourth Amendment," Andrew Ferguson, a professor at American University's Washington College of Law, tells Reason. "In situations where there is a lawful arrest, but no prosecution, there are no clear rules on retaining personal property. In these cases, police have been confiscating phones to punish protestors."

Michael Perloff, the lead attorney for the plaintiffs, agreed that the D.C. Circuit's decision could set an important precedent going forward. "Nationally, we've seen litigants attempt to challenge similar practices only to fail because the court concluded that the Fourth Amendment does not limit the duration of a seizure," he tells Reason. "Moving forward, we are hopeful that the D.C. Circuit's opinion will lead courts to reconsider those rulings and, instead, enforce the Fourth Amendment as fully as the framers intended."

[rjzimmerman]

Excerpt from this story from Inside Climate News:

For the second time, a federal court struck down a regulatory agency’s authorization of two controversial, multi-billion-dollar gas export projects in far South Texas, one of which is already under construction. 

In an Aug. 6 opinion, the U.S. Court of Appeals for the Washington, D.C. Circuit cited “the nature and severity of the flaws” in reviews by the Federal Energy Regulatory Commission of the two proposed gas liquefaction and export complexes, Rio Grande LNG and Texas LNG, along with the associated Rio Bravo Pipeline. 

“Although we do not take this step lightly, the circumstances here require it,” the ruling said. “We appreciate the significant disruption vacatur may cause the projects. But that does not outweigh the seriousness of the Commission’s procedural defects.”

The court wrote that FERC failed in its analyses of environmental justice and climate impacts, air pollution modeling and procedural obligations. FERC and the developers now have 45 days to seek a re-hearing.  

The two complexes in question plan to pipe in Texas shale gas, condense it and load millions of tons per year onto tanker ships for sale overseas as liquified natural gas, or LNG. Each complex costs billions of dollars, spans hundreds of acres and makes up part of an ongoing boom in gas export projects along the Gulf Coast of Texas and Louisiana. 

Rio Grande LNG parent company NextDecade said in a statement it was “disappointed in the Court’s decision and disagrees with its conclusions.” 

The company added that construction continues on the first three liquefaction trains and related infrastructure at Rio Grande LNG near Brownsville and it will examine what impact the court’s order will have on future plans for added infrastructure.

The company announced last July it had secured investor funding to begin construction on its 750-acre, $18 billion facility. 

A spokesperson for Texas LNG, a smaller, adjacent project on the Brownsville Ship Channel that is yet to secure sufficient funding, said the ruling was a procedural decision to correct a technical deficiency, which they were still studying. 

“We have full confidence FERC will address this matter judiciously and efficiently and look forward to working with them on this important issue,” the spokesperson said in a statement.

Three small surrounding cities and the local water district have passed resolutions opposing the projects, situated between national wildlife refuges and atop wetlands. 

[grits-galraisedinthesouth]

Supreme Court Overturns DOJ's Use of Key J6 Felony Court

"Today's decision means Attorney General Merrick Garland and federal judges in Washington wrongfully prosecuted roughly 350 J6ers with the post-Enron felony"

JULIE KELLY

JUN 28, 2024 In a devastating but well-deserved blow to the Department of Justice’s criminal prosecution of January 6 protesters, the U.S. Supreme Court today overturned the DOJ’s use of 18 USC 1512(c)(2), the most prevalent felony in J6 cases.

The statute, commonly referred to as “obstruction of an official proceeding,” has been applied in roughly 350 J6 cases; it also represents two of four counts in Special Counsel Jack Smith’s J6-related criminal indictment of Donald Trump in Washington. 

In a 6-3 decision, Chief Justice John Roberts wrote that the “c2” subsection is tethered to the “c1” subsection that addresses tampering with a record, document, or “object.”

From the opinion:

Roberts was joined by Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, Brett Kavanaugh, and Ketanji Brown Jackson. Justice Amy Coney Barrett authored the dissent (!) joined by Elena Kagan and Sonia Sotomayor.

Today’s decision means hundreds of Americans have been wrongfully prosecuted by Attorney General Merrick Garland as he insists his department is dedicated to upholding the “rule of law” and pursuing justice “without fear or favor.”

An Irreversible Black Eye for DOJ and Federal Courts in Washington

The matter originated in the case of Joseph Fischer, a Pennsylvania man who attended Trump’s speech and later went to the Capitol. According to court documents, Fischer briefly entered the building around 3:25 p.m., nearly an hour after the joint session of Congress to certify the electoral college votes had recessed. He exited about four minutes later.

In March 2021, a D.C. grand jury indicted Fischer on numerous counts including 1512(c)(2). The statute reads:

Whoever corruptly— 

(1) alters, destroys, mutilates, or conceals a record, document, or other object, or attempts to do so, with the intent to impair the object’s integrity or availability for use in an official proceeding; or 

(2) otherwise obstructs, influences, or impedes any official proceeding, or attempts to do so.

It is punishable by up to 20 years in prison.

Fischer, in addition to many J6ers facing the count, asked his judge to dismiss the charge. Judge Carl Nichols, appointed by Trump, dismissed the count against Fischer and two other defendants by finding the language in the post-Enron/Arthur Anderson statute covered tampering with records or documents not interrupting a meeting of Congress. The DOJ appealed Nichols’ decision.

In December, SCOTUS granted Fischer’s petition to grant cert seeking to reverse the appellate court’s mandate. Oral arguments were held on April 16.

Nichols is the only judge to have dismissed the count; 18 district and circuit court judges in Washington refused to dismiss the count. The judges essentially enabled the Biden DOJ’s unlawful pursuit of Americans who protested Biden’s election that day.

The List of Shame:

Judge Beryl Howell (Obama, former chief judge)

Judge James Boasberg (Obama, current chief judge)

Judge Rudolph Contreras (Obama)

Judge Trevor McFadden (Trump)

Judge John Bates (GW Bush)

Judge Amit Mehta (Obama)

Judge Dabny Friedrich (Trump)

Judge Royce Lamberth (Reagan)

Judge Richard Leon (GW Bush)

Judge Colleen Kollar-Kotelly (Clinton)

Judge Amy Berman Jackson (Obama)

Judge Timothy Kelly (Trump)

Judge Randolph Moss (Clinton)

Judge Paul Friedman (Clinton)

Judge Christopher Cooper (Obama)

D.C. Circuit Court Judge Florence Pan (Biden)—Pan wrote both appellate court decisions upholding 1512c2

D.C. Circuit Court Judge Justin Walker (Trump)

D.C. Circuit Court Judge Cornelia Pillard

There Goes Your Summer, Your Honor

The federal courthouse in Washington has been bracing for a flood of motions post-Fischer; a few judges have released individuals from prison in anticipation of a reversal. Roughly 110 J6ers have been sentenced to prison on 1512(c)(2) convictions; several J6ers were held under pretrial detention for being charged with the nonviolent obstruction count alone.

But despite the law’s legal limbo over the past year, U.S. Attorney for the District of Columbia Matthew Graves, a Biden appointee, continued to indict J6ers on 1512(c)(2) while some judges continued to sentence those convicted to lengthy prison terms. Last month, Beryl Howell, the former chief judge who upheld the 1512(c)(2) charges for defendants in her courtroom, sentenced a Missouri man to 60 months in prison for the 1512 conviction and assault on police.

In January 2022, Howell gave the green light for her colleagues to support the DOJ’s use of the obstruction count. Here is what she said in denying a motion to dismiss filed by two J6ers:

“For over 200 years, the peaceful transition of power from one presidential administration to another has been marked with Congress's certification of the Electoral College vote; and this event has been respectfully observed by American citizens, but not on January 6, 2021. And I start with this historical fact because what happened on January 6th was a chilling new type of criminal conduct to which our criminal laws have never before had to be applied. Application of criminal laws to conduct never before seen, like what occurred on January 6, 2021, appropriately generates the kind of legal questions the defendants raise here about whether the criminal law fits the charged criminal conduct.”

The first judge to uphold the obstruction charge in J6 cases was Trump-appointee Dabny Friedrich. In 2021, she agreed that interrupting a meeting of Congress met the definition of “official proceeding” and that the statute’s broad language did not require the government to prove the conduct involved tampering with records or documents.

Ironically—or not—Friedrich is married to Matthew Friedrich, a former DOJ official who worked on the Enron Task Force alongside Andrew Weissman and current deputy attorney general Lisa Monaco. The 1512(c)(2) statute was a product of the Enron/Arthur Anderson investigation; Weissmann, as the lead prosecutor for Special Counsel Robert Mueller in the bogus Russiagate probe, pushed the DOJ to charge Trump with 1512(c)(2) while in office.

Retired judge Thomas Hogan recently warned how a SCOTUS’s reversal of 1512(c)(2) would affect the DC courthouse. Here is Hogan, who upheld the statute in J6 prosecutions, with former DOJ official and FISAgate mastermind Mary McCord:

Reacting to the SCOTUS decision, Geri Perna, aunt of Matthew Perna, told me this by email:

“When Matthew was unexpectedly charged with the felony of Obstruction of an Official Proceeding—after initially facing only misdemeanors—his world collapsed. The weight of a potential lengthy prison sentence bore down on him, filling his days with insurmountable worry and anxiety. At that time, there was no glimmer of hope that this severe charge would be dropped.

Matthew has now been dead for 28 months. In the wake of his passing, the Supreme Court of the United States is finally set to rule on whether the Department of Justice wrongfully applied 1512(c)(2) in January 6 cases. As much as I am hopeful for a just ruling in favor of the January 6 defendants, I am consumed by a profound sense of loss and anger. My nephew's death was both avoidable and senseless.

I feel cheated, and if that sounds selfish, then so be it. The pain of losing Matthew under such circumstances is a burden I carry every day. I fervently hope that those responsible for wielding this charge erroneously will be held accountable in a court of law. However, I am not holding my breath.”

[tomorrowusa]

Trump apparently visited his former adviser Peter Navarro in prison. The prison authorities should have measured him for an orange jump suit so they'd be ready with the right fit when he finally arrives for good.

Fascist fanboy Steve Bannon lost his final appeal. It's time for him to head to the Big House.

Justice Department prosecutors on Tuesday asked the judge who presided over former Trump White House strategist and far-right conspiracy theorist Steve Bannon’s contempt of Congress case to order Bannon to begin serving his prison sentence. U.S. District Judge Carl Nichols had placed a stay on Bannon serving his four-month prison sentence while he appealed his contempt of Congress conviction. But the D.C. Circuit Court of Appeals upheld his conviction last Friday. “Consequently, there is no longer a ‘substantial question of law that is likely to result in a reversal or an order for a new trial,'” Assistant U.S. Attorney John Crabb Jr. wrote in a filing Tuesday, which was first reported by ABC News.

I can imagine Bannon fleeing the country to avoid prison. He's been active in authoritarian circles on the European continent. Putin could put him up in the Tucker Carlson Suite at the Comrade Hilton in Moscow. Maybe Trump would soon join him if he's convicted.

[bleedingcoffee42]

Stanhope Nixon suing over a plastic manufacturing process he says he invented and should have a patent on and the Patent office saying that 7 other people have a patent and its not that special so NO. All 339 pages for your dry ass legal proceeding pleasure if you are interested.

[pennsyltuckyheathen]

Trump will throw anything and everything at the courts so that he can delay, delay and delay as much as possible.  If he’s successful in postponing the insurrection case in DC and the documents case in Fascist Florida, until after the November election it will make him even more crazy and desperate to win so he can pardon himself.  

[foreverlogical]

The legal briefs are piling up in Florida. 

In the coming weeks, prosecutors in the Mar-a-Lago classified documents case against former President Donald Trump must provide more information to Judge Aileen Cannon in compliance with her latest orders. The judge has questioned the “legal propriety” of bringing charges into her courtroom using an out-of-state grand jury. 

In a separate setback for special counsel Jack Smith, Cannon struck two filings by prosecutors from the record. These unusual moves generated a torrent of criticism from legal scholars. 

Aside from Supreme Court Justice Sonia Sotomayor, Judge Cannon — who of Cuban American descent — is the most prominent Latina judge in the country. She is overseeing a historic case yet is on track to harm the judiciary system, democracy and her own reputation. Her partisan conduct is an embarrassment. 

To understand why Cannon is unfit to hear Trump’s case, start with her ruling last week. In it, Cannon asked about the legality of using a Washington, D.C., grand jury in a Florida-based case. But this is normal procedure, as grand juries can be convened anywhere crimes may have occurred. As a federal judge, Cannon should know this. 

It’s no wonder that her orders have earned widespread scorn from legal experts. Former Harvard Law professor Laurence Tribe called her approach “dopey and constitutionally dubious.” On X, the platform formerly known as Twitter, a former assistant U.S. Attorney wrote that Cannon “clearly shows her ignorance (bias? both?).”  And these were some of the kinder reactions. 

This is not the first time Cannon has appeared to favor Trump. After the FBI searched Mar-a-Lago last year, the former president filed a civil lawsuit to stop the Department of Justice investigation. Cannon sided with him, in a decision that was overturned by the 11th Circuit Court of Appeals. In a scathing rebuke, the appellate court found multiple serious errors in Cannon’s initial ruling and decided that she didn’t even have jurisdiction in the first place. 

These controversies matter to the Latino legal community because it is rare for a Latino judge to be in the national spotlight. In fact, Latino judges are rare. Though Latinos account for about 19 percent of the U.S. population, only 8 percent of federal judges are Latino. Of these, roughly one third are Latinas.  

Cannon is part of a long tradition of Latino jurists, from Alonso Perales, who founded the League of United Latin American Citizens (LULAC) in 1929, to civil rights pioneer Gus Garcia, who argued before the Supreme Court in 1954 to Justice Sotomayor. Cannon’s role in a hugely consequential legal matter could have been a source of pride for Latinos. Instead, calls are mounting for her recusal.  

As she tanks her own credibility, Cannon is likewise letting the Latino community down. According to a June Quinnipiac poll, 60 percent of Latinos are following the documents case closely, and 66 percent believe that Trump handled the classified papers in an inappropriate manner. Like other Americans, Latinos want to see the rule of law applied with impartiality. That hasn’t been the case so far, due to Cannon’s emerging pattern of bias.  

Cannon’s apparent fealty to the former president is as troubling as it is unfortunate. Look how that worked out for Alberto Gonzales, whose misplaced loyalty to George W. Bush led the nation's first Latino attorney general to resign. 

Yes, Cannon is a graduate of the University of Michigan Law School who previously worked in a D.C. law firm and as a federal prosecutor in Florida. But in her current role, she is a legal time bomb who could blow up a case with immense implications for national security and democracy. 

Consider that she had no judicial experience before her lifetime appointment to the federal bench by Trump in 2020. Or that as a prosecutor, she worked on only four criminal cases that resulted in trials, for a total of 14 trial days. 

Reuters reports that Cannon made rookie mistakes in a trial in June, such as forgetting to swear in the jury, while the New York Times describes her as a judge “who will be essentially learning on the job.”   

To borrow a catchphrase associated with Justice Sotomayor, Judge Cannon is no “Wise Latina.” She must recuse herself from the documents case, or prosecutors should seek to have her replaced. She is too problematic and inexperienced to preside over a criminal trial of Donald Trump.  

Raul A. Reyes is an attorney and contributor to NBC Latino and CNN Opinion. Follow him on Twitter @RaulAReyes, Instagram @raulareyes1.

[justinspoliticalcorner]

Chris Geidner at Law Dork:

Just before the close of business Tuesday, items appeared on two court dockets with which Law Dork readers are all too familiar that showed how far removed reality is from the ideal of “equal justice under law” engraved above the U.S. Supreme Court’s doors.

The items show — in shocking if predictable contrast — that the U.S. Court of Appeals for the Fifth Circuit is continuing to aggressively and explicitly encourage and protect forum-shopping for the right while federal courts in Alabama are continuing to aggressively investigate judicial concerns about alleged forum-shopping in LGBTQ civil rights litigation. First on Tuesday, two Trump appointees issued a ruling ordering, yet again, that a conservative ideological challenge to a Biden administration rule must remain within their ultraconservative circuit. Moments later, LGBTQ civil rights lawyers filed a notice that they had complied with the invasive order from another Trump appointee that he be allowed to review a document that they maintain is protected by attorney-client privilege as part of a two-year judge-shopping investigation. This issue is not new — I wrote about this issue more generally on June 10 — but Tuesday’s news developments are particularly stark examples of the differences in result that are the consequences of these differences in treatment.

Heads, the Chamber wins

For conservative forces — here, the Chamber of Commerce fighting the Consumer Financial Protection Bureau’s credit card late fee rule — Judges Don Willett of the U.S. Court of Appeals for the Fifth Circuit has twice issued writs of mandamus to stop U.S. District Judge Mark Pittman, a fellow Trump appointee, from transferring the challenge to the federal court in D.C. Pittman, after the first go-round, harshly criticized the “landmines” laid by the Fifth Circuit. In Tuesday’s order, Willett’s libertarianism was supported by Judge Kyle Duncan’s Christian nationalism to … protect business interests. [...]

Tails, LGBTQ civil rights lawyers lose

A little more than a 10-hour drive across the South away — across Texas, Louisiana, and Mississippi and up Alabama — lawyers submitted a document to U.S. District Judge Liles Burke that they insist is protected by attorney-client privilege but that he has now twice ordered the LGBTQ civil rights lawyers to turn over more than two years into a judge-shopping investigation. Burke himself prompted the investigation by questioning in a court order whether parties’ dismissal of two cases challenging the state’s new ban on gender-affirming care for minors and lawyers’ discussion that another challenge would be brought constituted judge-shopping.

Chris Geidner writes in Law Dork how right-wing interests get deferential treatment in various courts, especially the 5th Circuit Court.

[nodynasty4us]

No More Mister Nice Blog suggests three reasons why the Supreme Court decided to hear Trump’s appeal about presidential immunity for the election subversion case:

They want a Republican in a White House.

They fear assassination if they vote against Trump.

Thomas and Alito are in their seventies and will be looking to retire, and they want to get into Trump’s good graces so he will appoint Federalist Society replacements who are similar to them rather than hard-right allies of Trump.

[dreaminginthedeepsouth]

[Robert Scott Horton]

* * * * *

Trump grants himself a stay.

December 8, 2023

ROBERT B. HUBBELL

          Trump filed an appeal from Judge Chutkan’s order denying his motion to dismiss on grounds of presidential immunity. He simultaneously filed a motion to stay all proceedings before Judge Chutkan during the pendency of the appeal and claimed the unilateral right to disregard current trial deadlines:

[A]ll current deadlines must be held in abeyance until, at minimum, this motion is resolved. President Trump will proceed based on that understanding and the authorities set forth herein absent further order of the Court.

          Trump has told Judge Chutkan he will not obey existing orders of the court that have not been (and may never be) stayed. Judge Chutkan should issue monetary sanctions against Trump's lawyers, refer them to the D.C. Bar Association for disciplinary proceedings, and hold Trump in contempt when he fails to comply with a court deadline. Or revoke his pretrial release and allow him manage his defense from a jail cell.

          Sounds harsh, I know. But Trump has crossed a line. He told a federal judge that he is above the law—that he alone can determine whether and when he is subject to the jurisdiction of the court and which orders he must obey or is free to disregard. That is dangerous thinking. It is an assault on the authority of the court.

          Judge Chutkan’s response was to order the government to file an opposition by Sunday at 5:00 PM and Trump to file a reply by Tuesday at 5:00 PM. Hopefully, Judge Chutkan will issue an order denying Trump's motion at 5:01 PM on Tuesday.

          Trump may be entitled to the relief he has unilaterally granted himself, and he may obtain a stay from the D.C. Circuit pending his appeal. But as Andrew Weissman noted, Trump obtained the full benefit of discovery from the prosecution before filing his motion for stay. Under equitable doctrines (of fairness), Weissman believes that the motion for a stay should be denied. And Jack Smith will ask the D.C. Circuit to grant an expedited hearing on Trump's appeal.

          The potential for delay of trial until after the 2024 election is real and maddening. But not dispositive. Regardless of the order of the trial and the election, the trial will be meaningful (whenever it occurs) only if Trump is defeated at the ballot box. Otherwise, he can dismiss the charges before final judgment or pardon himself after a final judgment. The election will determine the outcome of the criminal proceedings, not the other way around.

          Still, Trump has insulted Judge Chutkan and—by implication—the authority of the federal judiciary to control his actions before and during trial. A strong response is warranted.

[Robert B. Hubbell Newsletter]