ADVERTISEMENT

Now we know what took the DC COA so long to rule...

C

cosmickid

Hall of Famer
Oct 23, 2009
12,657
7,858
113
They wanted to make their denial of Trump's immunity claim so forceful, that the possibility of SCOTUS even agreeing to take it up is doubtful. I suppose Team Trump could further try to delay by appealing for an en banc decision from the full circuit. But the panel in their unanimous,scathing opinion did not seem to mince words with regards to either Trump's claims or his (alleged) actions with regards to the felonies he's charged with...

One thing I'm curious about... The panel set a deadline of Feb 12 for Trump to appeal to SCOTUS before remanding the case back to trial court and getting the show back on the road. Does this preclude Trump trying to go to the full COA and requesting en banc proceedings, or is that still an option? I'd say this panel made it clear they didn't just agree totally with Chutkan's original ruling, but also they want this trial to proceed expeditiously...


 
cosmickid said:
They wanted to make their denial of Trump's immunity claim so forceful, that the possibility of SCOTUS even agreeing to take it up is doubtful. I suppose Team Trump could further try to delay by appealing for an en banc decision from the full circuit. But the panel in their unanimous,scathing opinion did not seem to mince words with regards to either Trump's claims or his (alleged) actions with regards to the felonies he's charged with...

One thing I'm curious about... The panel set a deadline of Feb 12 for Trump to appeal to SCOTUS before remanding the case back to trial court and getting the show back on the road. Does this preclude Trump trying to go to the full COA and requesting en banc proceedings, or is that still an option? I'd say this panel made it clear they didn't just agree totally with Chutkan's original ruling, but also they want this trial to proceed expeditiously...


View embedded media
Click to expand...
I'm guessing they thought it was an important case and they wanted to get it right (the language and reasoning, not the outcome which was never in much doubt).

I doubt anyone on the panel was strategizing about how to insulate the decision from SCt review.
 
BradStevens said:
I'm guessing they thought it was an important case and they wanted to get it right (the language and reasoning, not the outcome which was never in much doubt).

I doubt anyone on the panel was strategizing about how to insulate the decision from SCt review.
Click to expand...
I almost wish it would go to the Supreme Court, I would love for one of the justices to ask the lawyers if a president has immunity for ordering an assassination of a political rival.
 
  • Like
Reactions: IU_Hickory, Spartans9312 and hookyIU1990
cosmickid said:
They wanted to make their denial of Trump's immunity claim so forceful, that the possibility of SCOTUS even agreeing to take it up is doubtful. I suppose Team Trump could further try to delay by appealing for an en banc decision from the full circuit. But the panel in their unanimous,scathing opinion did not seem to mince words with regards to either Trump's claims or his (alleged) actions with regards to the felonies he's charged with...

One thing I'm curious about... The panel set a deadline of Feb 12 for Trump to appeal to SCOTUS before remanding the case back to trial court and getting the show back on the road. Does this preclude Trump trying to go to the full COA and requesting en banc proceedings, or is that still an option? I'd say this panel made it clear they didn't just agree totally with Chutkan's original ruling, but also they want this trial to proceed expeditiously...


View embedded media
Click to expand...
Here is the PDF text of the ruling itself:

Loading…

s3.documentcloud.org

Since this ruling was in a criminal case (not a civil), could one of the practicing attorneys on the board tell us whether Trump can now file anything similar to a motion for summary judgment (or was this his last possible dilatory tactic)?
 
Stuffshot said:
Here is the PDF text of the ruling itself:

Loading…

s3.documentcloud.org

Since this ruling was in a criminal case (not a civil), could one of the practicing attorneys on the board tell us whether Trump can now file anything similar to a motion for summary judgment (or was this his last possible dilatory tactic)?
Click to expand...
Disclaimer: I never did federal criminal law

I think the analogous thing to a MSJ from my state crim experience would be a Motion to Dismiss. I had to defend some charges I filed before against one. The idea being that the allegations pled aren't a crime. I also had some guys challenge a probable cause finding but the remedy there is excluding evidence or getting a guy out of custody, not an outright dismissal on its own.
 
BradStevens said:
I'm guessing they thought it was an important case and they wanted to get it right (the language and reasoning, not the outcome which was never in much doubt).

I doubt anyone on the panel was strategizing about how to insulate the decision from SCt review.
Click to expand...

I agree. The wording of my post was awkward and I'm not sure it conveyed what I was trying to say...

I do think some of the wording indictaes that this panel is trying to expedite the process and is not interested in tolerating Trump's delaying tactics... They only gave him till Feb 12 to notify them in writing that he had filed an appeal with SCOTUS...

But unless that happens they are directing the Clerk to issue the mandate, which I assume puts it back in Chutkan's hands to proceed towards trial. They say if Trump filles with SCOTUS they will withhold the mandate till SCOTUS decides on taking the case or not...

However they also say that just filing for rehearing or rehearing en banc will not automatically prevent the issuance of the mandate. Seems like they are telling Trump if you decide to appeal en banc we will not halt the trial while the full COA deliberates whether to grant an en banc hearing or not.

I don't know if that is an unusual stipulation or not. It sounds to me like they are "encouraging" Trump to make a decision regarding his SCOTUS options and basically put an end to his endless delaying tactics...Without that stipulation, Trump would be more than content to appeal to the full COA and then have proceedings stalled while they decide on whether to take the case or not.I'm sure he was intent on using that period as a way to further delay things...

But this seems clever on the part of the panel to me. They are stipulating that he can try and continue his delay tactics by appealing to COA, but that no stay will be issued until the COA decides to take the case. So instead of the legal machinery working in his favor with it's customary delays, it would work against him. In the sense that trial court prep would move forward while the full COA deliberated whether they'd grant review or not.

The only way he can halt the mandate ASAP is to file with SCOTUS, which means they'd possibly get his appeal on the docket faster than he'd like. Which means,without a victory in SCOTUS and the finding he was immune, the ruling is more likely to come soon enough to try the case prior to the election. It seems as if they have sped up his timetable and limited his options.
 
TomEric4756 said:
Yes … it should go … it’s a question that needs to be answered going back to Nixon bombing the Ho Chi Minh trail.
Click to expand...
Nah. It just needs to go back to Nixon's destruction of evidence, ordering of government officials to stop their investigation and organizing the rest of the Watergate coverup.

If serious minds thought Nixon had Presidential immunity, President Ford would not have given him a pardon. But it's OK if the Supreme Court wants to make it official.
 
  • Like
Reactions: Sope Creek
Marvin the Martian said:
I almost wish it would go to the Supreme Court, I would love for one of the justices to ask the lawyers if a president has immunity for ordering an assassination of a political rival.
Click to expand...

The SC will have its hands full with the CO. ballot disqualification case. Look for them to take a pass on the immunity case. It's farcical on its face, and the DC court covered all the questions raised. The only reason for them to take it up would be some sort of desire to put the question to rest once and for all.
 
  • Like
Reactions: Bowlmania
It's telling that not a single person here has stepped up to suggest the appellate court got it wrong. That may be a first.
(To be honest, I actually did not expect anyone here to attempt to support Trump's immunity claim - now watch someone try to show that my optimism was foolish!)
 
Noodle said:
It's telling that not a single person here has stepped up to suggest the appellate court got it wrong. That may be a first.
(To be honest, I actually did not expect anyone here to attempt to support Trump's immunity claim - now watch someone try to show that my optimism was foolish!)
Click to expand...
You fool.

;) ;) :)
 
UncleMark said:
The SC will have its hands full with the CO. ballot disqualification case. Look for them to take a pass on the immunity case. It's farcical on its face, and the DC court covered all the questions raised. The only reason for them to take it up would be some sort of desire to put the question to rest once and for all.
Click to expand...
I think the C.A. Is flat dead wrong, not because Trump is immune, but because the process used to determine immunity is wrong. I blame Trumps lawyers also. As I’ve often said the quality of appellate opinions depends in large measure in the quality of the arguments made.

Of course Presidents have absolute immunity for official acts taken within the scope of their responsibility. But there are huge factual issues imbedded within that immunity and how it should apply. . The trial and appellate court resolved those facts by wrongfully assuming the charges are true.

The Colorado Supreme Court adopted what is called the Trinity Doctrine (The legal beagles can look it up) to determine whether the facts of a case amount to a waiver of civil immunity or not. This is the approach Trumps lawyers should have taken. We first must have an evidentiary proceeding to determine the immunity question. It cannot be resolved, in this circumstance, through MTD arguments.

A blunt force application of this ruling will open the door for a state or federal prosecutor to at least charge Biden for ignoring border security laws. Is that how we should run the office of President?

The CA ignorance about the nuances of immunity was revealed at oral argument when they asked the question about assassinating a political opponent. Sheer dumbassary. .
 
  • Like
Reactions: AtlantaCat and DANC
CO. Hoosier said:
I think the C.A. Is flat dead wrong, not because Trump is immune, but because the process used to determine immunity is wrong. I blame Trumps lawyers also. As I’ve often said the quality of appellate opinions depends in large measure in the quality of the arguments made.

Of course Presidents have absolute immunity for official acts taken within the scope of their responsibility. But there are huge factual issues imbedded within that immunity and how it should apply. . The trial and appellate court resolved those facts by wrongfully assuming the charges are true.

The Colorado Supreme Court adopted what is called the Trinity Doctrine (The legal beagles can look it up) to determine whether the facts of a case amount to a waiver of civil immunity or not. This is the approach Trumps lawyers should have taken. We first must have an evidentiary proceeding to determine the immunity question. It cannot be resolved, in this circumstance, through MTD arguments.

A blunt force application of this ruling will open the door for a state or federal prosecutor to at least charge Biden for ignoring border security laws. Is that how we should run the office of President?

The CA ignorance about the nuances of immunity was revealed at oral argument when they asked the question about assassinating a political opponent. Sheer dumbassary. .
Click to expand...
This is laughably nonsensical. The suggestion that you know more about presidential immunity than Trump's lawyers and the DC Circuit Court of Appeals adds to the hilarity.

It's obvious you didn't read the opinion. Here's a brief excerpt:

Former President Trump's alleged efforts to remain in power despite losing the 2020 presidential election were, if proven, an unprecedented assault on the structure of our government. He allegedly injected himself into a process in which the President has no role - -the counting and certifying of the Electoral College votes - - thereby undermining constitutionally established procedures and the will of Congress.
 
Bowlmania said:
This is laughably nonsensical. The suggestion that you know more about presidential immunity than Trump's lawyers and the DC Circuit Court of Appeals adds to the hilarity.

It's obvious you didn't read the opinion. Here's a brief excerpt:

Former President Trump's alleged efforts to remain in power despite losing the 2020 presidential election were, if proven, an unprecedented assault on the structure of our government. He allegedly injected himself into a process in which the President has no role - -the counting and certifying of the Electoral College votes - - thereby undermining constitutionally established procedures and the will of Congress.
Click to expand...
You quote one of several court faux pas and don’t even know it.

The court based its immunity conclusion on facts that are not established. This is a basic fatal flaw. Immunity must be resolved before trial.
 
  • Like
Reactions: DANC
TheOriginalHappyGoat said:
Looks like Bowl highlighted the fatal flaw in your complaint.
Click to expand...
How so? The first sentence in my first post on this point is that the process for deciding immunity is flat dead wrong, and I supported that with details how it should be done. I’ve never seen an example where factual issues about immunity were decided at the trial on the merits. The only justification for the CA view is that there is no immunity as a matter of law, but then they turn around and say the important facts are yet to be proven. That is a fatal flaw.
 
CO. Hoosier said:
How so? The first sentence in my first post on this point is that the process for deciding immunity is flat dead wrong, and I supported that with details how it should be done. I’ve never seen an example where factual issues about immunity were decided at the trial on the merits. The only justification for the CA view is that there is no immunity as a matter of law, but then they turn around and say the important facts are yet to be proven. That is a fatal flaw.
Click to expand...
You need to bone up on the collateral order doctrine.

Also consider that Trump wanted the immunity issue resolved before trial - - probably hoping that it would delay the trial until after the election. That's his entire defense strategy - - delay and run out the clock, and then pardon himself or get everything thrown out when (and if) he becomes president again.

Also consider this: It would be "unseemly ... to require that former President Trump first be tried in order to secure review of his immunity claim after final judgment." I'll let you guess where that came from.
 
CO. Hoosier said:
You quote one of several court faux pas and don’t even know it.

The court based its immunity conclusion on facts that are not established. This is a basic fatal flaw. Immunity must be resolved before trial.
Click to expand...
If I file a complaint against Official O that alleges that O did something, X, that is a fact issue as to whether O did X.

But whether the pled facts X satisfy the legal definition of immunity, Y, is a legal question. I.e. for the purposes of a MTD in civil law, at least, one assumes all the facts pled as true, and then tests whether those facts would satisfy Y.

Isn't the CA, here, saying that if the prosecution proves X that Y is not applicable? If the prosecution doesn't prove X, then you don't need an immunity defense--Trump already won the trial.

What am I missing here?
 
BradStevens said:
If I file a complaint against Official O that alleges that O did something, X, that is a fact issue as to whether O did X.

But whether the pled facts X satisfy the legal definition of immunity, Y, is a legal question. I.e. for the purposes of a MTD in civil law, at least, one assumes all the facts pled as true, and then tests whether those facts would satisfy Y.

Isn't the CA, here, saying that if the prosecution proves X that Y is not applicable? If the prosecution doesn't prove X, then you don't need an immunity defense--Trump already won the trial.

What am I missing here?
Click to expand...
Immunity means immunity from charges and trial. Otherwise it’s simply an affirmative defense.
 
CO. Hoosier said:
Immunity means immunity from charges and trial. Otherwise it’s simply an affirmative defense.
Click to expand...
You're grasping at straws. Read the opinion. It's sound, probably unassailable. A per curiam opinion by a panel of judges appointed by both a Republican and Democratic president. There is no way Trump prevails on immunity. Get over it.
 
CO. Hoosier said:
Immunity means immunity from charges and trial. Otherwise it’s simply an affirmative defense.
Click to expand...
So you’re saying this type of immunity is not like qualified immunity. ok. So what is it? A jurisdictional issue?
 
BradStevens said:
So you’re saying this type of immunity is not like qualified immunity. ok. So what is it? A jurisdictional issue?
Click to expand...
The Court of Appeals had jurisdiction to hear this under the Collateral Order doctrine. Trump's attorneys were in accord.
 
Bowlmania said:
You're grasping at straws. Read the opinion. It's sound, probably unassailable. A per curiam opinion by a panel of judges appointed by both a Republican and Democratic president. There is no way Trump prevails on immunity. Get over it.
Click to expand...
Quit being a dumbass and read what I said.
 
BradStevens said:
So you’re saying this type of immunity is not like qualified immunity. ok. So what is it? A jurisdictional issue?
Click to expand...
All we can do is analogize. This has never happened in our history. I think Trumps lawyers should have pounded the idea immunity means immunity from trial and when that involves disputed facts, or disputed conclusions from agreed facts, there must be a separate evidentiary hearing only on immunity. That’s how we do it here and I’ve done several. If immunity is denied, ( After appeal if necessary) the case proceeds as if immunity was never an issue.
 
You must log in or register to reply here.

Similar threads

C

Is the Document case reaching a critical juncture?

Replies
96
Views
2K
The Water Cooler
mcmurtry66
M
C

Jan 9th and the COA oral arguments...

Replies
12
Views
576
The Water Cooler
Bowlmania
B
C

Meanwhile in the MAL documents case...

Replies
6
Views
292
The Water Cooler
UncleMark
U
ADVERTISEMENT

Latest posts

ADVERTISEMENT
Top Bottom
Back