The Law of the Case (II) and the Next Steps

United States v. Trump, Case No. 9:23-cr-80101-AMC, 2024 WL 3404555, 2024 U.S. Dist. LEXIS 123552, --- F. Supp. 3d ---- (S.D. Fla. July 15, 2024) (Cannon, J.), ECF No. 672, <https://tinyurl.com/hk4z7e76>, <https://www.courtlistener.com/docket/67490070/united-states-v-trump/>, appeal dismissed in regard to Defendant Trump (11th Cir. Nov. 26, 2024), ECF No. 81, <https://www.courtlistener.com/docket/68955302/united-states-v-donald-trump/>.

On November 25, 2024, Special Counsel Jack Smith filed a motion to dismiss in both the 11th Circuit case and in the United States District Court for the District of Columbia case. See ECF No. 79 (motion); ECF No. 81 (motion granted). Judge Cannon’s Southern District of Florida decision—dismissing the case based on Smith’s unconstitutional appointment and ultra vires appropriations made to Smith—is now the law of the case. It is good, persuasive precedent—albeit, not binding precedent. If the DOJ/Special Counsel had any inhibition relating to dismissal and leaving Judge Cannon’s final order and opinion as good, persuasive case law, then that inhibition now appears to be long gone.

Special Counsel Smith has had a full and fair opportunity to prove—before the trial court and now on appeal—that he was lawfully appointed and lawfully compensated. He failed to establish those specific points in court. As a result, the DOJ may and (in my opinion) should sue for return of illegal salary paid by the U.S. Treasury to Smith and his staff (that is, those not otherwise employed at DOJ). Special Counsel Smith failed to prove that the documents seized by the FBI at Mar-a-Lago belong to the U.S. government or any of its agencies. Trump should move, and if necessary sue, for return of all his files taken by the FBI at Mar-a-Lago.

Seth Barrett Tillman, ‘The Law of the Case (II) and the Next Steps,’ New Reform Club (Nov. 25, 2024, 15:13 PM), <https://reformclub.blogspot.com/2024/11/the-law-of-case-ii.html>; 

**Of course, the above assumes that the 11th Circuit dismisses, in short order, as requested by the Special Counsel. (Defendant Trump did not object to the Special Counsel’s motion to dismiss.)

Jack Smith’s Pending Eleventh Circuit Case Against President-Elect Trump: Why the Delay?

 

 

Jack Smith lost before Judge Cannon (United States District Court for the Southern District of Florida), and subsequently, Smith appealed Judge Cannon’s final order to the United States Court of Appeals for the Eleventh Circuit. Smith’s opening brief and Trump’s opposition brief, as well as amici supporting each side, were all filed before the November 5, 2024 presidential election. Smith’s reply brief was due November 15, 2024. Smith never filed that reply. Instead, he asked for an extension to file his reply and to reconsider his position in light of new circumstances. Smith requested an extension until Monday, December 2, 2024. The extension was granted.

Leaving aside whether or not the Special Counsel and his office should have been prepared to move forward in a timely manner in the event of either a Trump victory or loss in the election, one might ask: Why does Smith need nearly a full calendar month to figure out what his (and, implicitly, the DOJ’s) position is?

I have refrained from commenting on this issue for a variety of reasons. First, I have filed an amicus brief on the merits of this litigation, and it might look like overreach to speculate on the motives of the Special Counsel, particularly, when doing so in public and not in court filings. Second, I am not a DOJ alum, and I have no inside information about the conversations taking place among Smith and his subordinates, among the AG and his senior colleagues, and the conversations between Smith’s group and the AG’s group. But I have had some thoughts. And recently I came across a November 6, 2024 Lawfare episode in line with my own thinking. From Benjamin Wittes et al., ‘Lawfare Live: What Does a Second Trump Term Look Like?,’ Lawfare (Nov. 6, 2024, 10:27 AM) (at 2:05–4:03):

Scott R. Anderson: Our operational thesis, with the understanding that this is pretty unprecedented territory, and there is not a lot of hard law guiding it …. is that once you get to the point where you have somebody who is being criminally prosecuted or who has been convicted, and they become acting President and, in particular, perhaps, President-elect to some degree as well, all of a sudden you have a real conflict of legal principles between the federal government drive to the fact you need a functional and operational President, and nothing about being indicted or being charged or convicted in anyway disqualifies anyone from being President, in fact, probably, constitutionally, it cannot, except maybe, if it was tied to Section 3 of the 14th Amendment…. which none of the statutes he has been charged/prosecuted under have been are.

 

….

 

You have to reconcile this need to have a federal presidential principle that the President is operational and functional and that could be in tension with state law and with other principles like the administration of justice.

 

….

 

Essentially, that the state charges are the more complicated ones. The federal charges are likely to just go away. We are already seeing reports that Jack Smith and the Justice Department are working to find a way to wind down those charges. There is a complication in the [Eleventh Circuit] Mar-a-Lago case. As they [Smith and the DOJ] particularly don’t like the current ruling by Judge Cannon that gets right at the matter on the basis of [Defendants’] Appointments Clause argument relating to Jack Smith’s appointment. They don’t want to have precedent around that lingering around although district court opinions are not precedent. They don’t want to have a bad opinion about that loitering around. But they still want to have an orderly wind down of those cases because the Justice Department has a long-standing position that you cannot prosecute a sitting President. And that would be consistent with that.

Generally, I agree with Scott Anderson. Smith’s delay in filing his reply (or any other papers) may be caused by the fact that although DOJ wishes to make the Mar-a-Lago prosecution come to a close, the DOJ does not want Cannon’s opinion to remain good case law. Why is it good case law? Because, at this juncture, Cannon’s decision has not been vacated or reversed. That said: Anderson is clearly wrong in asserting that a federal district court opinion is not a precedent. Certainly, it is not a binding precedent. It is not even binding in the Southern District of Florida among other judges in that district. But it is a precedent, and it carries persuasive force based on how future judges find its reasoning sound. If Anderson were correct, if Cannon’s decision was not precedential at all, then the powers that be in DOJ would be unconcerned in leaving Cannon’s decision as it now stands.

 

Seth Barrett Tillman, ‘Jack Smith’s Pending Eleventh Circuit Case Against President-Elect Trump: Why the Delay?,’ New Reform Club (Nov. 21, 2024, 6:53 AM), <https://reformclub.blogspot.com/2024/11/jack-smiths-pending-eleventh-circuit.html>;

Philly. Hoagie. Done Right.

How to Make a Proper Philly Hoagie: A Step-by-Step Guide 

1. Choosing the Right Roll: Make sure to use a fresh, crusty Italian hoagie roll with a slight crust on the outside. It should be sturdy enough to hold all the fillings but soft enough to bite through comfortably.      
2. Scooping the Roll: Scooping out some of the inner bread from the bottom half of the roll is a great tip to prevent sogginess and create more space for the fillings. However, it's also common to scoop out both the top and bottom halves of the roll to maximize the filling-to-bread ratio and prevent the sandwich from becoming too bready.
3. Adding Condiments: Drizzling olive oil and red wine vinegar onto the bottom half of the roll is a classic Philly hoagie technique. Or prepare in advance a dressing of red wine vinegar, olive oil and oregano, letting it sit long enough the rehydrate the oregano. Lightly seasoning with salt and freshly cracked black pepper is perfect. Adding a thin layer of mayo on the top half of the roll is optional but adds a nice creaminess.
4. Layering the Meats: Capicola, Genoa salami or Hot soppressata, Mortadella and some ham are great choices for deli meats. Prosciutto if you want to upscale it a little. Folding or crumpling the meats slightly helps keep the sandwich from becoming too flat. Adding thin slices of provolone cheese on top of the meats is a must for that melty, cheesy goodness. Most important: Layer the meats in order of spiciness, mildest last: Capicola, Salami, Mortadella, Ham [if any], Cheese.                
5. Adding Fresh Veggies: Shredded iceberg lettuce and thinly sliced onions are essential for a fresh crunch. Soaking the onions in cold water to tone down their sharpness is a good tip, or use white or red onions instead. Adding hot or sweet peppers is optional but adds a nice kick. Thinly sliced tomatoes are acceptable but not mandatory.
   
6. Cherry Pepper Spread: Cento Cherry Pepper Spread is a fantastic addition for a bolder flavor punch. You can spread it on the bottom half of the roll along with the oil and vinegar or layer it on top of the meats. Go very easy on the spread as it can easily overpower the meats and cheese.
7. Topping the Sandwich: Closing the hoagie with the top half of the roll and gently pressing down to help all the layers meld together is key. If you like mayo, it should be on this half.

Key Tips for a Perfect Philly Hoagie:

·    Scooping the bread helps prevent sogginess and creates room for more fillings.

·    Oil and vinegar go on the bottom, not mixed with the veggies like a salad dressing, for the best texture. The hoagie doesn't get soggy, even a day later!

·    Mayo goes on top (if desired), so it doesn’t interfere with the classic oil-vinegar combo and keeps the sandwich from getting too messy.

Shai: DO NOT FOUL, DO NOT COME NEAR

 

What Happened in the States?: State Legislatures and Governorships (UPDATED)

 

 

Some results are still trickling in. And some state legislative races are not yet final—subject to final tally, recount, and judicial review. But such races are the exception. Most results are in. You can find results reported here: 

BEFORE NOVEMBER 2024 ELECTION: 

<https://documents.ncsl.org/wwwncsl/About-State-Legislatures/Legis_Control_2024_10-18-24_Adam%20Kuckuk.pdf> (dated 18-Oct-2024);

AFTER NOVEMBER 2024 ELECTION: 

<https://documents.ncsl.org/wwwncsl/Elections/LegisControl_2024_Post%20Election_Prelim.pdf> (dated 8-Nov-2024); 

 

Before the 2024 election: the partisan split among governors was 27R/23D. There were 11 governor’s races, and no changes in partisan control. Thus the split remained 27R/23D.

 

The partisan composition of the state legislative houses saw some change. The analysis here looks to the 49 states with bicameral chambers, and excludes Nebraska’s unicameral non-partisan chamber. At play are 98 chambers (49 * 2) and some 7,386 state legislative seats.

 

Prior to the election, in terms of legislative seats, the composition was:

 

4020 Rs        3250 Ds        116 other (other parties, independents, and vacancies)

 

After the November 5, 2024 election, the composition appears to be:

 

          4081 Rs        3237 Ds        68 other (other parties, independents, and vacancies)

 

That’s a small shift, 61 seats, to the Rs—from the D column and from the other column. The Rs gained 14 state senate seats and 47 state house seats. The Rs continue to have about 55% of all state legislative seats nationally. Most state legislative chambers saw 5 or fewer seats change from R to D or D to R. Notable exceptions beyond 5 seats include:

• Maine House—Rs gain 7 seats, and shift from D control to divided control (75D, 74R, 2 other);
• Montana House—Ds gain 9 seats, but Rs continue to control; 
• New Hampshire House—Rs gain 16 seats, and Rs continue to control; 
• Vermont Senate—Rs gain 6 seats, but Ds continue to control; 
• Vermont House—Rs gain 22 seats, but Ds continue to control; 
• Wisconsin Senate—Ds gain 6 seats, but Rs continue to control (with a 1-seat majority); and,
• Wisconsin House—Ds gain 11 seats, but Rs continue to control.

All the most significant R gains were in legislative chambers in New England—i.e., Maine, New Hampshire, and Vermont. 

 

In terms of chambers, prior to the election, the composition was:

 

57 majority-R chambers     41 majority-D chambers     0 tie-or-no-majority chambers

 

After the November 5, 2024 election, the composition appears to be:

 

57 majority-R chambers     38 majority-D chambers     3 tie-or-no-majority chambers

 

What chambers changed?

• Alaska House* shift from R-control to divided control (20R, 15D, 5 other); 
• Maine House shift from D control to divided control (75D, 74R, 2 other);
• Michigan House shift from D-control to R-control; and, 
• Minnesota House** shift from from D-control to D-R tie (67-to-67). 

The Republicans’ (Rs’) picking up one state legislative chamber (MICHIGAN HOUSE) along with loss of one state legislative chamber to divided control (ALASKA HOUSE) only, at best, shows moderate success ... unless one takes for granted that the Rs started this election at, or nearly at their, “natural” political peak leaving little room for improvement by gaining seats or control of chambers. By contrast, the Ds arguably did worse—losing control of 3 state legislative chambers (MAINE HOUSE, MICHIGAN HOUSE, and MINNESOTA HOUSE). The loss of the MINNESOTA HOUSE with Walz on the national ticket is hardly a sign of political success by the Ds. 

And in the territories? Guam’s unicameral legislature shifted from D-control to R-control (from 9D-to-6R to 7D-to-8R). Puerto Rico’s two legislative chambers both flipped from the PDP to the NPP—the latter is more aligned with the national Republican Party than is the former. 

See generally Wendy Underhill, ‘Election Outcomes: Status Quo in the States Despite GOP Gains in DC,’ National Conference of State Legislatures (Nov. 8, 2024), <https://www.ncsl.org/state-legislatures-news/details/election-outcomes-status-quo-in-the-states-despite-gop-gains-in-dc>;

 

Seth Barrett Tillman, ‘What Happened in the States?: State Legislatures and Governorships (UPDATED),’ New Reform Club (Nov. 10, 2024, 3:21 AM) (updated Nov. 11, 2024), <https://reformclub.blogspot.com/2024/11/what-happened-in-states-state.html>; 

*Alaska results are not yet final—including initial counts and subsequent counts under ranked choice voting, recounts, judicial review, etc. Furthermore, ranked choice voting extends the process and time period to count votes.

**It could be argued that the Minnesota Senate flipped from divided control (33D-to-33R, with 1 vacancy) to D (official DFL party) control (34D-to-33R). The National Conference of State Legislatures does not classify this as a change of control, perhaps because, prior to the November 2024 election, the Ds (DFLs) had already organized the chamber, and also because, prior to the November 2024 election, the Ds (DFLs) had already chosen a D (DFL) president, pro tempore, and majority leader. 

Senate Confirms 21 BIDEN-nominated Judges Since the Election (UPDATED)

                                                           FEDERAL JUDICIAL APPOINTMENTS RECORD

                                                                                                                                                                                                                                                                                                                            BIDEN

                                       TRUMP-45        BIDEN (11/5)       BIDEN (20/12/2024)* NOMINEES

Supreme Court of the U.S.:             3                            1                                  1  ( +2)

U.S. Courts of Appeals:                 54                          44                                45  ( +9)                   3

U.S. District Courts:                    174                        166                              185  (-11)                   6

U.S. Court of Int’l Trade:                3                            2                                  2  ( +1)

ARTICLE III TOTAL:             234                        213                              233  ( +1)                   9

Article I Specialty Courts:             26                          16                                17  ( +9)

Article IV Territorial Courts:           1                            1                                  1  (   0)

ARTICLE I + IV COURTS:       27                          17                                18   (+9)

 

ALL JUDICIAL POSITIONS: 261                        230                              251  (+10)                   9

In the weeks since the November 5, 2024 election, the U.S. Senate has confirmed twenty-one Biden nominees for federal judicial appointments. This includes one Article III appellate judge, nineteen Article III district court judges, and one Article I judge. President Biden’s number of lame duck appointments exceeds the controversial 14 “midnight” appointments made by President John Adams. Adams’ record of 14 midnight appointments (to then newly created judicial posts) is now being used as a how-to guide. (The Senate confirmed some nineteen Trump-45 nominees during Trump’s lame duck period, including fourteen Article III judges, and five Article I judges.) 

There are (circa) 870 authorized Article III judicial posts. (I am not counting the Article I judicial positions in the United States District Courts for the District of the Virgin Islands, for the District of Guam, and for the District of Northern Mariana Islands.) Both Trump-45 and Biden have appointed more than 25% of the number of authorized Article III judicial posts. More than half the Article III judicial positions were filled during the last 8 years!

To date, it appears that Trump-45 made more federal judicial appointments than Biden has made. And, at this juncture, December 20, 2024, there are 44 federal judicial vacancies** to Article III courts. (I am not including 3 future vacancies which will take effect only after Biden’s term has ended.) There are 9 Biden judicial nominations pending before the U.S. Senate (or a Senate committee).

The lame duck U.S. Senate and Joe Biden, the lame duck U.S. President, might now push forward, and so it is possible that over the course of the next several days and weeks Biden’s record might (further) improve and equal (or, possibly, even surpass) Trump-45’s record for judicial appointments. There is also the less likely possibility of Biden’s submitting additional and entirely new nominees—even at this late juncture—for extant or newly arisen judicial vacancies. Interestingly, after the November 5, 2024 election, Biden nominated two individuals to federal district court positions.

Currently, the Senate is NOT scheduled to meet during January prior to January 3, 2025, when the new Congress convenes. As of Friday, December 20, 2024, the Senate is scheduled to meet only today and, apparently, not again during December. That is a total of 1 business day. See <https://www.senate.gov/legislative/resources/pdf/2024_calendar.pdf>. As things now stand, this single business day is Biden’s primary substantial opportunity to secure advice and consent for his remaining (unconfirmed) nominees. (Albeit, the Senate could change its schedule and meet for additional days while the Democrats still have a majority.)

See <https://www.uscourts.gov/judges-judgeships/judicial-vacancies/current-judicial-vacancies>, <https://www.uscourts.gov/judges-judgeships/judicial-vacancies/future-judicial-vacancies>, <https://www.senate.gov/legislative/nominations_new.htm>. See generally ‘List of federal judges appointed by Joe Biden,’ Wikipedia, <https://en.wikipedia.org/wiki/List_of_federal_judges_appointed_by_Joe_Biden>. 

 

Seth Barrett Tillman, ‘Senate Confirms 21 BIDEN-nominated Judges Since the Election (UPDATED),’ New Reform Club (Nov. 7, 2024, 6:56 AM) (UPDATED Dec. 20, 2024, Irish Time), <https://reformclub.blogspot.com/2024/11/trump-45-v-biden-federal-judicial.html>;

See also: Seth Barrett Tillman, ‘Trump-47 and the Future of the Federal Judiciary (UPDATED),’ New Reform Club (Dec. 7, 2024, 3:09 PM) (UPDATED Dec. 20, 2024, Irish Time), <https://reformclub.blogspot.com/2024/12/trump-47-and-future-of-federal-judiciary.html>; 

[References to UPDATES (etc) use local Irish time (or may be made several hours ahead of time).]

Note: the U.S. Court of International Trade is an Article III court.

*I am including positions where the Senate has confirmed a Biden nominee, but the President has not formally appointed that person. I expect the appointments will be made imminently. 

**As vacancies, I am counting current vacancies, and also future vacancies which will take effect on or prior to January 20, 2025 (that is, while Biden remains President). If Biden can shepherd his 9 pending nominees through during the remainder of the Senate’s session and his presidential term, then Biden will have appointed roughly the same number of Justices/judges Trump-45 appointed. (As of December 17, 2024, five of the nine Biden nominees are on the Senate Executive Calendar, and the remaining four nominees are pending before the Senate Judiciary Committee.) It seems that in order for Biden to surpass Trump-45’s record in regard to all federal judicial appointments, Biden will have to nominate further candidates to extant or newly arisen judicial vacancies. It is possible that some further judicial positions could become vacant in the days remaining to Biden’s administration. Likewise, it is also possible that some resignations in regard to judicial positions will be retracted in these last days remaining to the Biden administration. See generally Seth Barrett Tillman, ‘Judge Wynn’s Resignation,’ New Reform Club (Dec. 15, 2024, 3:05 AM), <https://reformclub.blogspot.com/2024/12/judge-wynns-resignation.html>.

 

This Time, Trump Stops The Steal

As they say in North Dallas Forty, seeing through the game is not the same as winning the game. If there was one, I think The Steal in 2020 was thousands of little nods and winks and rule-bendings by Democrat election officials, not some grand conspiracy. Trump and the GOP did much better this time, setting up a TEAM that was prepared for all chicanery. He'll finish with about the same number of votes as 2020, and Kamala will have got 10 million less than Biden. So yes, Biden might have got millions of fake or invalid votes, and better preparation by the GOP scared the Dems off from repeating The Steal. But we will never know. I never bought into The Steal. In the least Trump neither headed it off or proved it. Like when he said McCain wasn't a hero just for getting his plane shot down and getting captured, anyone who gets cheated is still a loser. Politics is a dirty game and he was too lazy and vain to prevent it. But not this time.