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Trump’s Legal Journey




The Twists and Turns of Trump’s Legal Journey

By Ted Noel


Rather than walk through all the convoluted bits of Trump’s active Federal cases, it’s probably better if I simply hit the bullet points on the ones being heard right away. I’ll try to skip over lots of legalese on the way to giving you a clearer view of complicated processes.  You can dig in farther to understand more details before the D.C. Court of Appeals and the Supreme Court rule on the cases in front of them. All the pleadings are on line. The shortest ones are about forty pages.

The first case to be heard is in the DCCA. SCOTUS held that the appeal by Donald Trump on presidential Immunity would be heard in “regular order” by the DCCA before SCOTUS would look at it. They did not rule on the merits.

DCCA (J6 case on presidential immunity, to be heard January 9):

Issue:  Is the president protected by absolute immunity for any actions taken in the process of carrying out his duties as president?

  • Affirmative Argument (Trump)

◦ If the president can be charged for doing his job after he leaves office, no president is ever safe. The other side can always drum up some charge. Therefore, presidents are absolutely immune from prosecution for acts taken “within the outer perimeter of his Constitutional duties.”

  • Contrary Argument (Jack Smith.

◦ Trump is claiming immunity for all actions as President, including some not within his Constitutional duties.

◦ SCOTUS precedent requires immunity claim to be appealed after a trial verdict.

  • Wrinkle

◦ Former Attorney General Edwin Meese and others have filed an amicus brief alleging that Jack Smith was appointed contrary to law, and therefore has no authority prosecute Trump for anything.

  • My Guess

◦ The DCCA will find for Smith on the process argument, holding that relevant SCOTUS precedent does not prevent a trial since the charge is that Trump’s J6-related actions were not within the scope of the president’s duties.

◦ Since the DCCA has asked the parties to be ready to argue the issues raised by amici, they may find that Smith’s appointment is invalid. This would be a large step for them, but has a clear legal foundation. If they rule that he was not properly appointed, everything he did will become “fruit of the poisonous tree.” The J6 charges will all be dismissed. One side effect would be that the Mar-a-Lago case would have to be dismissed as well, since its original indictment was signed by Smith. Most of the evidence in that case would have to be suppressed as well.

SCOTUS (Colorado case about 14th Amendment and Trump’s ballot eligibility, to be heard February 8):

Issue: Does the insurrection clause in Section 3 of the 14th Amendment disqualify Trump from running for president, meaning that he should be kicked off the ballot?

  • Affirmative Argument (Colorado, followed by Maine, although that case is still in state court)

◦ J6 was an insurrection, aided and abetted by President Trump

◦ Section 3 is “self-executing,” meaning that local jurisdictions can kick him off the ballot.

◦ The president is an “officer of the United States.”

  • Contrary Argument (Trump, along with several amici)

◦ The term “insurrection” in Section 3 basically refers to an armed revolt such as the Civil War. Failing that clear definition, all other “definitions” lack a true legal defining principle, and are thus unconstitutionally vague.

◦ Section 5 of the 14th Amendment reserves enforcement of Section 3 to the Congress, thus denying it to any other body. Indeed, in Trump’s second impeachment, he was acquitted of insurrection by the Senate. This is therefore the controlling law.

◦ Allowing a local (i.e. state) to exercise jurisdiction in a national election destroys the uniform rules required for national elections. SCOTUS has already ruled that states cannot impose new eligibility requirements on senators, congressmen, and the president.

◦ The president, senators, and representatives are elected. They are not “officers of the United States.” They are the United States in a legal sense. “Officers of the United States” is defined (Art II, Sec 2, Clause 2) as persons appointed by the president. Therefore Article 3 simply does not apply to the president.

  • My Guess

◦ SCOTUS loves to rule on narrow grounds. If they can get through to a decision without dealing with some of the questions, they will. That said, even though the definition of insurrection is unconstitutionally vague, two questions will still stand out. The first is the idea that Section 3 is self-executing. Because there are some low-level cases that may be argued by Colorado, SCOTUS may punt here. This is a decision that John Roberts would dearly love to be 9-0. Including Section 5 in the discussion may lead the Liberals on the Court to make that 6-3.

◦​ The question of “officer of (or under) the United States,” which is grammatically defined in the Constitution as officers appointed by the president, is a much clearer case. If the president appoints all the officers, he can’t be one. It’s likely that Roberts will get a 9-0 vote on this, drop-kicking all the ballot excluders to the curb. It would also confirm his statement in Free Enterprise Fund v. Public Company Oversight Board that “the people do not vote for ‘Officers of the United States’.” One curious side effect of this would be to silence all the “emoluments” noise about Trump profiting from his office, since only officers of the United States are restricted from receiving foreign gifts.

It’s said that you can’t tell the players without a scorecard. In this double-header, it’s not so much the players as which games are scheduled. Hopefully this playbill will make the news easier to follow.

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  1. Once upon a time the law in this country appeared to be well respected.
    Over the last few years in particular, it seems more political appointments have been made in the judiciary. This doesn’t bode well for our future.
    Issues like “tikanga” being introduced could have wide ranging implications in the future.

    I don’t know how Trump manages to confront all the crap thrown at him.



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