Some thoughts I saw this morning:
Bill Kristol @BillKristol
My far less informed (but also wild) guess is the same. But if there are seven votes (or more?) in Vance to uphold the DA subpoena, it would be interesting if Roberts had assigned the opinion to a Trump appointee, Gorsuch or Kavanaugh. Kind of an "institutionalist" thing to do.
Steve Vladeck @steve_vladeck
My best (but wild) guess for tomorrow at #SCOTUS:
10:00: McGirt (Gorsuch, 5-4), OK can't try McGirt in state court.
10:10: Vance (Breyer, 7-2), upholding DA subpoena.
10:20: Mazars (Roberts for different 5-4 majorities), upholding 2 congressional subpoenas & throwing out rest.
Big day at #SCOTUS. We expect the last three decisions of the Term—in the Oklahoma sovereignty case and the Trump financial records cases—in some order at 10, 10:10, & 10:20 EDT.
As a reminder, opinions are handed down in reverse order of seniority of the Justice who wrote them.
Most folks are assuming that the Chief Justice has the opinion in the Mazars/Deutsche Bank case, so that would be last at 10:20. But there are enough permutations for the other two (Vance and McGirt) that they could come in either order.
SCOTUS
Re: SCOTUS
by cradleandshoot » Fri Aug 13, 2021 8:57 am
Mr moderator, deactivate my account.
You have heck this forum up to making it nothing more than a joke. I hope you are happy.
This is cradle and shoot signing out.
Mr moderator, deactivate my account.
You have heck this forum up to making it nothing more than a joke. I hope you are happy.
This is cradle and shoot signing out.
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Re: SCOTUS
Trump v. Vance
https://www.scotusblog.com/wp-content/u ... 5_o7jq.pdf
No heightened standard.
"Two hundred years ago, a great jurist of our Court established that no citizen, not even the President, is categorically above the common duty to produce evidence when called upon in a criminal proceeding. We reaffirm that principle today and hold that the President is neither absolutely immune from state criminal subpoenas seeking his private papers nor entitled to a heightened standard of need. The “guard[] furnished to this high officer” lies where it always has—in “the conduct of a court” applying established legal and constitutional principles to individual subpoenas in a manner that preserves both the independence of the Executive and the integrity of the criminal justice system."
https://www.scotusblog.com/wp-content/u ... 5_o7jq.pdf
No heightened standard.
"Two hundred years ago, a great jurist of our Court established that no citizen, not even the President, is categorically above the common duty to produce evidence when called upon in a criminal proceeding. We reaffirm that principle today and hold that the President is neither absolutely immune from state criminal subpoenas seeking his private papers nor entitled to a heightened standard of need. The “guard[] furnished to this high officer” lies where it always has—in “the conduct of a court” applying established legal and constitutional principles to individual subpoenas in a manner that preserves both the independence of the Executive and the integrity of the criminal justice system."
Last edited by seacoaster on Thu Jul 09, 2020 10:17 am, edited 1 time in total.
Re: SCOTUS
Trump loses 7-2 (Thomas and Alito) the New York prosecutor’s case. No heightened need standard applies.
Re: SCOTUS
.. You mean Trump lost to Vance. Trump can only limit distribution of documents that refer to his official duties. Which is not the Vance case. 7-2 decision.seacoaster wrote: ↑Thu Jul 09, 2020 10:13 am Trump v. Vance
https://www.scotusblog.com/wp-content/u ... 5_o7jq.pdf
No heightened standard.
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Re: SCOTUS
Case goes back to the District Court. Roberts notes that the "daylight between our opinion" and the Thomas "dissent" is "not as great as that label might suggest." "We agree that Presidents are neither absolutely immune from state criminal subpoenas nor insulated by a heightened need standard." "We agree that Presidents may challenge specific subpoenas as impeding their Article II functions." "And although we affirm while Justice Thomas would vacate, we agree that this case will be remanded to the District Court."
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Re: SCOTUS
Mazurs: 7-2 again
https://www.scotusblog.com/wp-content/u ... 5_febh.pdf
"The House’s approach fails to take adequate account of the significant separation of powers issues raised by congressional subpoenas for the President’s information. Congress and the President have an ongoing institutional relationship as the “opposite and rival” political branches
established by the Constitution. The Federalist No. 51, at 349. As a result, congressional subpoenas directed at the President differ markedly from congressional subpoenas we have previously reviewed, e.g., Barenblatt, 360 U. S., at 127; Eastland, 421 U. S., at 506, and they bear little resemblance to criminal subpoenas issued to the President in the course of a specific investigation, see Vance, ante, p. ___; Nixon, 418 U. S. 683. Unlike those subpoenas, congressional subpoenas for the President’s information unavoidably pit the political branches against one another. Cf. In re
Sealed Case, 121 F. 3d 729, 753 (CADC 1997) (“The President’s ability to withhold information from Congress implicates different constitutional considerations than the President’s ability to withhold evidence in judicial proceedings.”).
Far from accounting for separation of powers concerns, the House’s approach aggravates them by leaving essentially no limits on the congressional power to subpoena the President’s personal records. Any personal paper possessed by a President could potentially “relate to” a conceivable
subject of legislation, for Congress has broad legislative powers that touch a vast number of subjects. Brief for Respondent 46. The President’s financial records could relate to economic reform, medical records to health reform, school transcripts to education reform, and so on. Indeed, at argument, the House was unable to identify any type of information that lacks some relation to potential legislation. See Tr. of Oral Arg. 52–53, 62–65.
Without limits on its subpoena powers, Congress could “exert an imperious controul” over the Executive Branch and aggrandize itself at the President’s expense, just as the Framers feared. The Federalist No. 71, at 484 (A. Hamilton); see id., No. 48, at 332–333 (J. Madison); Bowsher v.
Synar, 478 U. S. 714, 721–722, 727 (1986). And a limitless subpoena power would transform the “established practice” of the political branches. Noel Canning, 573 U. S., at 524 (internal quotation marks omitted). Instead of negotiating over information requests, Congress could simply walk away from the bargaining table and compel compliance in court."
https://www.scotusblog.com/wp-content/u ... 5_febh.pdf
"The House’s approach fails to take adequate account of the significant separation of powers issues raised by congressional subpoenas for the President’s information. Congress and the President have an ongoing institutional relationship as the “opposite and rival” political branches
established by the Constitution. The Federalist No. 51, at 349. As a result, congressional subpoenas directed at the President differ markedly from congressional subpoenas we have previously reviewed, e.g., Barenblatt, 360 U. S., at 127; Eastland, 421 U. S., at 506, and they bear little resemblance to criminal subpoenas issued to the President in the course of a specific investigation, see Vance, ante, p. ___; Nixon, 418 U. S. 683. Unlike those subpoenas, congressional subpoenas for the President’s information unavoidably pit the political branches against one another. Cf. In re
Sealed Case, 121 F. 3d 729, 753 (CADC 1997) (“The President’s ability to withhold information from Congress implicates different constitutional considerations than the President’s ability to withhold evidence in judicial proceedings.”).
Far from accounting for separation of powers concerns, the House’s approach aggravates them by leaving essentially no limits on the congressional power to subpoena the President’s personal records. Any personal paper possessed by a President could potentially “relate to” a conceivable
subject of legislation, for Congress has broad legislative powers that touch a vast number of subjects. Brief for Respondent 46. The President’s financial records could relate to economic reform, medical records to health reform, school transcripts to education reform, and so on. Indeed, at argument, the House was unable to identify any type of information that lacks some relation to potential legislation. See Tr. of Oral Arg. 52–53, 62–65.
Without limits on its subpoena powers, Congress could “exert an imperious controul” over the Executive Branch and aggrandize itself at the President’s expense, just as the Framers feared. The Federalist No. 71, at 484 (A. Hamilton); see id., No. 48, at 332–333 (J. Madison); Bowsher v.
Synar, 478 U. S. 714, 721–722, 727 (1986). And a limitless subpoena power would transform the “established practice” of the political branches. Noel Canning, 573 U. S., at 524 (internal quotation marks omitted). Instead of negotiating over information requests, Congress could simply walk away from the bargaining table and compel compliance in court."
Last edited by seacoaster on Thu Jul 09, 2020 10:29 am, edited 2 times in total.
Re: SCOTUS
So it just gives Trump a little more room for delay.seacoaster wrote: ↑Thu Jul 09, 2020 10:22 amCase goes back to the District Court. Roberts notes that the "daylight between our opinion" and the Thomas "dissent" is "not as great as that label might suggest." "We agree that Presidents are neither absolutely immune from state criminal subpoenas nor insulated by a heightened need standard." "We agree that Presidents may challenge specific subpoenas as impeding their Article II functions." "And although we affirm while Justice Thomas would vacate, we agree that this case will be remanded to the District Court."
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Re: SCOTUS
Trump loses the congressional subpoena case as well. Alito and Thomas dissent again. Court adopts a balancing test. Case is remanded to apply test. So while congress wins here, they won’t get the tax returns before the election in all likelihood because the application of the balancing test will now be litigated in the lower courts.
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Re: SCOTUS
Are all these cases pushed to beyond the election?
If so, effectively a win for the Trump 2020 Campaign, while clearly a loss for Trump in the long haul.
If so, effectively a win for the Trump 2020 Campaign, while clearly a loss for Trump in the long haul.
Re: SCOTUS
Good decisions if your are concerned about the President being able to stonewall for ever. Next bozo to try this gets cut off at the knees in a lower court as they should. Still gives Trump a little more room to run, but the end is in sight. He will be giving up the requested records.
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Re: SCOTUS
NJ Bill called it months ago.MDlaxfan76 wrote: ↑Thu Jul 09, 2020 10:30 am Are all these cases pushed to beyond the election?
If so, effectively a win for the Trump 2020 Campaign, while clearly a loss for Trump in the long haul.
Trump loses, but wins. Because the cases go back to the lower courts for more litigation. Justice delayed is justice denied.
SCOTUS only decides the broad legal principle/rule/test. So then the lower court has to apply that general test to the specific detailed facts.
Boycott stupid. If you ignore the gator troll, eventually he'll just go back under his bridge.
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Re: SCOTUS
Sounds like after the election, not before.jhu72 wrote: ↑Thu Jul 09, 2020 10:34 am Good decisions if your are concerned about the President being able to stonewall for ever. Next bozo to try this gets cut off at the knees in a lower court as they should. Still gives Trump a little more room to run, but the end is in sight. He will be giving up the requested records.
Were any of the cases compelling records from others, eg Deutsche Bank, who otherwise could decide to simply produce?
Or is that too, (if applicable), bumped to a later date?
Re: SCOTUS
Can we assume whatever the Lower Court decides regarding the test is FINAL and NOT subject to appeal?ggait wrote: ↑Thu Jul 09, 2020 10:40 amNJ Bill called it months ago.MDlaxfan76 wrote: ↑Thu Jul 09, 2020 10:30 am Are all these cases pushed to beyond the election?
If so, effectively a win for the Trump 2020 Campaign, while clearly a loss for Trump in the long haul.
Trump loses, but wins. Because the cases go back to the lower courts for more litigation. Justice delayed is justice denied.
SCOTUS only decides the broad legal principle/rule/test. So then the lower court has to apply that general test to the specific detailed facts.
Re: SCOTUS
MDlaxfan76 wrote: ↑Thu Jul 09, 2020 10:30 am Are all these cases pushed to beyond the election?
If so, effectively a win for the Trump 2020 Campaign, while clearly a loss for Trump in the long haul.
DailyKos reported there is an online petition for folks to demand that Biden agree to a debate only if those tax records are disclosed. Possibly a good move.
It has been proven a hundred times that the surest way to the heart of any man, black or white, honest or dishonest, is through justice and fairness.
Charles Francis "Socker" Coe, Esq
Charles Francis "Socker" Coe, Esq
Re: SCOTUS
The important case is Vance. I am not so concerned with the delay here. The House case is regrettable it means nothing this year. But heads em off at the pass in future cases. The Vance case will likely cost Trump significant $ and/or jail time next year. It should be pretty clear even if re-elected, he is dead man walking. This will cause the republicans significant heartburn in concern about the 2020 election.ggait wrote: ↑Thu Jul 09, 2020 10:40 amNJ Bill called it months ago.MDlaxfan76 wrote: ↑Thu Jul 09, 2020 10:30 am Are all these cases pushed to beyond the election?
If so, effectively a win for the Trump 2020 Campaign, while clearly a loss for Trump in the long haul.
Trump loses, but wins. Because the cases go back to the lower courts for more litigation. Justice delayed is justice denied.
SCOTUS only decides the broad legal principle/rule/test. So then the lower court has to apply that general test to the specific detailed facts.
They are all thinking, "I have destroyed my career just so this clown gets taken down after the election. Fu*k me!"
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Re: SCOTUS
However, if re-elected, no criminal charges against him personally until 2024. Maybe civil charges against his businesses, but can't prosecute him personally.jhu72 wrote: ↑Thu Jul 09, 2020 10:56 amThe important case is Vance. I am not so concerned with the delay here. The House case is regrettable it means nothing this year. But heads em off at the pass in future cases. The Vance case will likely cost Trump significant $ and/or jail time next year. It should be pretty clear even if re-elected, he is dead man walking. This will cause the republicans significant heartburn in concern about the 2020 election.ggait wrote: ↑Thu Jul 09, 2020 10:40 amNJ Bill called it months ago.MDlaxfan76 wrote: ↑Thu Jul 09, 2020 10:30 am Are all these cases pushed to beyond the election?
If so, effectively a win for the Trump 2020 Campaign, while clearly a loss for Trump in the long haul.
Trump loses, but wins. Because the cases go back to the lower courts for more litigation. Justice delayed is justice denied.
SCOTUS only decides the broad legal principle/rule/test. So then the lower court has to apply that general test to the specific detailed facts.
Re: SCOTUS
Neil Katyal thinks Vance could move significantly faster. For the House, I think it is next year at the earliest. As long as the House remains in D hands, there is a backstop against Trump.MDlaxfan76 wrote: ↑Thu Jul 09, 2020 10:49 amSounds like after the election, not before.jhu72 wrote: ↑Thu Jul 09, 2020 10:34 am Good decisions if your are concerned about the President being able to stonewall for ever. Next bozo to try this gets cut off at the knees in a lower court as they should. Still gives Trump a little more room to run, but the end is in sight. He will be giving up the requested records.
Were any of the cases compelling records from others, eg Deutsche Bank, who otherwise could decide to simply produce?
Or is that too, (if applicable), bumped to a later date?
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Re: SCOTUS
I am not so sure - maybe one of the legal beagles can give us a read?MDlaxfan76 wrote: ↑Thu Jul 09, 2020 10:59 amHowever, if re-elected, no criminal charges against him personally until 2024. Maybe civil charges against his businesses, but can't prosecute him personally.jhu72 wrote: ↑Thu Jul 09, 2020 10:56 amThe important case is Vance. I am not so concerned with the delay here. The House case is regrettable it means nothing this year. But heads em off at the pass in future cases. The Vance case will likely cost Trump significant $ and/or jail time next year. It should be pretty clear even if re-elected, he is dead man walking. This will cause the republicans significant heartburn in concern about the 2020 election.ggait wrote: ↑Thu Jul 09, 2020 10:40 amNJ Bill called it months ago.MDlaxfan76 wrote: ↑Thu Jul 09, 2020 10:30 am Are all these cases pushed to beyond the election?
If so, effectively a win for the Trump 2020 Campaign, while clearly a loss for Trump in the long haul.
Trump loses, but wins. Because the cases go back to the lower courts for more litigation. Justice delayed is justice denied.
SCOTUS only decides the broad legal principle/rule/test. So then the lower court has to apply that general test to the specific detailed facts.
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Re: SCOTUS
In the grand jury subpoena case, I hadn't focused on the fact that even in the lower courts Trump had evidently reserved the right to raise certain additional defenses. Seems a bit odd to me. Usually you have to raise all your defenses at once and only get one bite at the apple. But these cases are unusual.
So on remand, Trump can try to claim the grand jury subpoenas impede his Article II functions. Two problems for Trump. The obvious one is this argument goes by the boards if he loses the election. Second, the subpoenas were served on his banks, accountants, etc., and not on him personally. Seems a real stretch to say those subpoenas unduly impede his job as president when he doesn't need to do anything in connection with complying with the subpoenas. That's a bit glib, but I think he has a very weak case on remand.
In the Congressional subpoena cases, I think it's a bit early to assess how they will shake out on remand. I believe the test the SCt. articulated today is new and somewhat involved so there will be some serious litigation on how it applies to the various subpoenas on remand. Not clear to me at this point how those cases will shake out. I would think there is a high likelihood the cases will return to the Supreme Court down the road. Obviously, the question of the extent to which Congress can subpoena records from the president is critical to the functioning of our democracy.
I think it is less likely that the grand jury case will return to the Supreme Court. Possible of course, but if Trump loses in November, the case likely will be moot. If he wins reelection, I think there is a chance the Court wouldn't take the case as the "impediment" defense seems rather weak. Still, the case does involve the president so the Court could take the case for that reason alone.
In any event, it seems unlikely (though possible) that the grand jury will get Trump's financial records before the election. Even if they do, it's very unlikely they will be leaked. Hope not as grand jury secrecy is important. It seems like there is zero chance Congress will get his records before the election.
I think Roberts got the results he wanted. Essentially wins for the system, but results that ensure Trump's tax returns aren't made public before the election which (I suspect) Roberts thinks would unduly interfere with the election.
So on remand, Trump can try to claim the grand jury subpoenas impede his Article II functions. Two problems for Trump. The obvious one is this argument goes by the boards if he loses the election. Second, the subpoenas were served on his banks, accountants, etc., and not on him personally. Seems a real stretch to say those subpoenas unduly impede his job as president when he doesn't need to do anything in connection with complying with the subpoenas. That's a bit glib, but I think he has a very weak case on remand.
In the Congressional subpoena cases, I think it's a bit early to assess how they will shake out on remand. I believe the test the SCt. articulated today is new and somewhat involved so there will be some serious litigation on how it applies to the various subpoenas on remand. Not clear to me at this point how those cases will shake out. I would think there is a high likelihood the cases will return to the Supreme Court down the road. Obviously, the question of the extent to which Congress can subpoena records from the president is critical to the functioning of our democracy.
I think it is less likely that the grand jury case will return to the Supreme Court. Possible of course, but if Trump loses in November, the case likely will be moot. If he wins reelection, I think there is a chance the Court wouldn't take the case as the "impediment" defense seems rather weak. Still, the case does involve the president so the Court could take the case for that reason alone.
In any event, it seems unlikely (though possible) that the grand jury will get Trump's financial records before the election. Even if they do, it's very unlikely they will be leaked. Hope not as grand jury secrecy is important. It seems like there is zero chance Congress will get his records before the election.
I think Roberts got the results he wanted. Essentially wins for the system, but results that ensure Trump's tax returns aren't made public before the election which (I suspect) Roberts thinks would unduly interfere with the election.