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/>.
Monday, November 25, 2024
The Law of the Case (II) and the Next Steps
Thursday, November 21, 2024
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>;
Wednesday, November 13, 2024
Philly. Hoagie. Done Right.
How to Make a Proper Philly Hoagie: A Step-by-Step Guide
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
Tuesday, November 12, 2024
Sunday, November 10, 2024
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).
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.
Thursday, November 07, 2024
Senate Confirms 17 BIDEN-nominated Judges Since the Election (UPDATE)
FEDERAL JUDICIAL APPOINTMENTS RECORD
BIDEN
TRUMP-45 BIDEN (11/5) BIDEN (12/09/2024)* NOMINEES
Supreme Court of the U.S.: 3 1 1
U.S. Courts of Appeals: 54 44 45 4
U.S. District Courts: 174 166 181 10
U.S. Court of Int’l Trade: 3 2 2
ARTICLE III TOTAL 234 213 229
Article I Specialty
Courts: 26 16 17
Article IV Territorial
Courts: 1 1 1
Total Judicial Positions: 261 230 247 14
In the weeks since the November 5, 2024 election, the U.S. Senate has confirmed 17 Biden nominees for federal judicial appointments. This includes 1 Article III appellate judge, 15 Article III district court judges, and 1 Article I judge. President Biden’s number of lame duck appointments exceeds the 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 19 Trump-45 nominees during Trump’s lame duck period, including 14 Article III judges, and 5 Article I judges.)
There are 874 authorized Article III judicial posts. Both Trump-45 and Biden have appointed more than 25% of the number of authorized posts. More than half the Article III judicial positions were filled during the last 8 years!
Currently, it appears that Trump-45 made more federal judicial appointments than Biden has made (to date). And, at this juncture, December 9, 2024, there are 48 federal judicial vacancies** to Article III courts, with 14 Biden nominees’ confirmations pending before the U.S. Senate. See <https://www.uscourts.gov/judges-judgeships/judicial-vacancies/current-judicial-vacancies>, and, <https://www.uscourts.gov/judges-judgeships/judicial-vacancies/future-judicial-vacancies>.
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 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. Interestingly, after the November 5, 2024 election, Biden nominated two individuals to federal district court positions.
The Senate is NOT scheduled to meet in January prior to January 3, 2025, when the new Congress convenes. As of Monday, December 9, 2024, the Senate is scheduled to meet only today and during the next 9 business days in December. That is a total of 10 business days. See <https://www.senate.gov/legislative/resources/pdf/2024_calendar.pdf>. As things now stand, these 10 business days are Biden’s only really opportunity to secure advice and consent for his remaining (unconfirmed) nominees.
(source: Wikipedia)
Seth Barrett Tillman, ‘Senate Confirms 17 BIDEN-nominated Judges Since the Election (UPDATE),’ New Reform Club (Nov. 7, 2024, 6:56 AM) (Updated Dec. 9, 2024), <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 (UPDATE),’ New Reform Club (Dec. 7, 2024, 3:09 PM) (Updated Dec. 9, 2024), <https://reformclub.blogspot.com/2024/12/trump-47-and-future-of-federal-judiciary.html>;
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) and also any vacancy marked “TBD” in the www.uscourts.gov website. There are 4 such “TBD” vacancies. President Biden has submitted a nominee for each such “TBD”-position. If Biden can shepherd these 4 nominees through during the remainder of the Senate’s session and his presidential term, along with his other 10 remaining nominees replacing judges who have announced pre-January-20-2024 vacancy dates, then Biden will have appointed the same number of Justices/judges Trump-45 appointed. It seems that in order for Biden to surpass Trump-45’s record, Biden will have to nominate further candidates to vacant judicial positions. And, of course, extant positions could become vacant in the days remaining to Biden’s administration.