Former President Trump's NY Cases Ought to Be Removable to Federal Court

The House of Representatives should pass a bill allowing former President Trump to remove both his New York criminal and civil cases to federal court.

I taught Federal Jurisdiction for at least fifteen years at Northwestern Law School, from 1990 to 2005, and I have written several law review articles on this subject. I have long admired the federal removal statutes, which allow allow federal officers and persons acting under a law of the United States to remove their cases from state to federal court. See generally In re Neagle, 135 U.S. 1 (1890). One such law was passed during Reconstruction, in 1875, in the wake of the Civil War, to prevent the eleven former Confederate states from harassing or oppressing federal officers or those with a duty to act under federal law.

State judges are often elected, and they can sometimes be biased for reasons of race, sex, politics, or religion. That bias is evident in both the New York State criminal and civil lawsuits brought against former President Donald Trump this year. Those cases were tried in the most liberal borough, of one of the most liberal cities, of one of the most liberal states in the nation.

Regional biases against former Presidents are sometimes quite pronounced. The NY civil and criminal cases brought against former President Donald Trump are evidence of this fact. This makes broader removal statutes necessary and proper so that talented people will not be dissuaded from running for the office of President of the United States.

The House of Representatives should pass a bill, which is now before the House rendering such cases removable to federal court. Former President Trump's conviction in a Manhattan trial court is unconstitutional under the First Amendment, as I have previously explained on this blog. Trump's conviction thus presents a major federal question, which ought to be decided before voters cast their ballots this November by the U.S. Supreme Court. The House of Representatives can expedite that process by passing the removal bill, which is now before the House.

Any final legislation passed should allow the removal of civil as well as of criminal cases. Former President Trump's loss of a civil suit with damages assessed at around $450 million also presents major federal questions under the Due Process Clause of the Fourteenth Amendment, as well as presenting an Eighth Amendment excessive fines claim. Congress should pass a broad removal statute that covers at least state criminal and civil claims brought against former Presidents of the United States. This is necessary and proper so that talented people will not be dissuaded from running for President in the future.

In my opinion, such a statute should apply not only to former Presidents of the United States. It should also apply to former Vice Presidents and to all former officers of the United States. One can easily imagine former Vice Presidents or officers of the United States being harassed by elected state prosecutors and judges. Even former members of Congress should probably be allowed to remove civil and criminal cases from state to federal court.

The sad truth is that state prosecutorial and judicial officials are, overall, somewhat more partisan and more lacking in legal wisdom than are life tenured federal judges. This is due to the fact that state judges and district attorneys are elected at the state level. There are many superb state Supreme Court and inferior court judges and district attorneys. But, at a minimum former Presidents of the United States ought to be guaranteed that they will have access to the federal life tenured judiciary if they are sued or prosecuted. This is not only just. It is also necessary to ensure that talented people will not be dissuaded from running for or holding federal offices in the future.

Comments

[Jason Cavanaugh]

.

That bias is evident in both the New York State criminal and civil lawsuits brought against former President Donald Trump this year. Those cases were tried in the most liberal borough, of one of the most liberal cities, of one of the most liberal states in the nation.

If you have a complaint that the jurisdiction was improper, then make a coherent legal argument. “Boo hoo they’re 2 liberul” is not a valid complaint.

The House of Representatives should pass a bill, which is now before the House rendering such cases removable to federal court. Former President Trump’s conviction in a Manhattan trial court is unconstitutional under the First Amendment, as I have previously explained on this blog.

No, they should not, and falsifying business records is not a First Amendment issue no matter how many times you try to say otherwise.

Former President Trump’s loss of a civil suit with damages assessed at around $450 million also presents major federal questions under the Due Process Clause of the Fourteenth Amendment, as well as presenting an Eighth Amendment excessive fines claim.

His liability for his own actions does not present any Due Process issues, let alone ‘major’ ones. The liability was based on the damages suffered, and are (surprise) not an Eighth Amendment issue either. Why don’t you just argue that rich people get to do whatever they want because they have enough money to not care?

This is not only just. It is also necessary to ensure that talented people will not be dissuaded from running for or holding federal offices in the future.

In fact, it is unjust and improper, and nothing more than an attempt to further shield Federal officials from the laws they decide to violate. They have cause of action to remove a case to Federal court when it involves their official duties, there is not a good reason – aside from your incessant and embarrassing desire to suckle Trump’s testicles, to permit them to receive more special treatment than the rest of us when or if they decide to violate State laws through private action. Next you’ll be arguing that Presidents can subsequently just pardon themselves afterwards.

You finished your nonsense by referring to Trump as a ‘talented’ candidate. The stroke clearly did major damage to your faculties.

You people need to realize that Trump is a criminal, who is surrounded by other criminals, and that it should not be a surprise that he’s just as corrupt as the company he kept and keeps.

Criminals get prosecuted; get over it. Get off your fucking knees and stop begging for Trump to be above any and every law.

[NvEric]

How about being factual in your comments ? instead of being unclear and quite rude.

Falsifying records ?
By whom ?
When ?
To "influence" an election AFTER the fact ?
Or is time travel real ?

[David Nieporent]

You're sealioning. This has all been gone over many times.

[JesusHadBlondeHairBlueEyes]

I understand you're desperate cognitive need to paper over the ugly truth of what you banana republic Haiti-esque tyrants are doing, but the rest of us will still challenge and question the vile evil demons of the State.

I know being skeptical of authority and elites is something you are unaccustomed to, so maybe leave it up to us humans?

[Rev. Arthur L. Kirkland]

The professor seems to have sustained a stroke or some other debilitating malady.

This white, male blog's right-wing fans can ascribe their ignorance, belligerence, bigotry, superstition, and backwardness to no such factor (other than, in many case, on-the-spectrum disorder).

These conservative misfits were born this way. That is a problem, but nothing replacement won't solve.

[Krayt]

Indeed it has. You’re out to use the power of government to get a political opponent before an election.

Yes, there is a threat to democracy here. Look in the mirror, thugs.

An endless series of many initiatives to investigate, prosecute, leak info to hurt an opponent continues into its 8th year. You lie it’s not about that, but the sheer number exposes that.

You know you’re not supposed to, so you lie you have disinterested concern for rule of law. Yet when, as with “purely political” impeachments, you can go after a political opponent because he is an opponent, you do so gleefully.

When you disasterbate he may pardon himself, you send the info down to the state level just in case. That is mathematical proof of going after an opponent, severed from concern for rule of law.

You expropriated his estate to hurt him, in the manner kings of old did to thorny noblemen, which was why it’s unconstitutional. But you found a way! Uhhh, for rule of law reasons, of course.

So continue your lies it is about rule of law, as you continue a serious, democracy-threatening and massive violation of rule of law.

Nobody is above the law is a subset of everybody is equal before the law, which means not using the power of government investigation against opponents because they are opponents, which you violate hand over fist over and over again.

I have a serious question for lawyers. When you defend a client, you may know they are guilty. Putting up their best defense is ok, but in a sense you are lying, and you know it. I assume you soothe your conscience by remembering how dastardly governments are historically, how unfair they are.

But are you so used to fascade cover stories and blatting that out as showpieces from a vuvuzela that you're lying never enters your mind? It's a game, what we're doing, and, bbbblattt! There's what we say why we're doing it.

You are the threat to democracy, going after an opponent before an election, a challenger. Like Russia, China, Venezuela, many other nations with opponents in jail.

[Sarcastr0]

You start with assuming everyone agrees with you about the law, and then you proceed to condemn people for acting like they disagree with you, the filthy liars.

I know you're one of the most ideologically-based posters on here, so your conclusions are more internally generated than most.
But it doesn't seem healthy to morally condemn everyone who disagrees with you in these long screeds.

[not guilty]

"I have a serious question for lawyers. When you defend a client, you may know they are guilty. Putting up their best defense is ok, but in a sense you are lying, and you know it. I assume you soothe your conscience by remembering how dastardly governments are historically, how unfair they are."

A criminal defense colleague from Knoxville said it best: "I have never gone to court with a guilty client. I have, however, left some there."

A plea of not guilty on behalf of a criminal defendant is not a factual assertion. It is instead the method of joining issue as to the averments of the charging instrument and requiring the prosecution to meet its burden of proof as to every essential element of the offense.

[Nige]

'Yes, there is a threat to democracy here. Look in the mirror, thugs.'

An effort to overturn an election isn't a threat to democracy but the prosecution of a mediocre white-collar criminal for a mediocre white-collar crime is. Amazing.

[Balisane]

Of the 12 jurors in Trump's criminal trial, what percentage were non-whites or Jews?

[Rev. Arthur L. Kirkland]

Profs. Blackman and Bernstein, and former professor Volokh, will issue the customary pass to this guy with respect to antisemitism.

Clingers gonna cling.

Partisan hacks gonna hack.

And they're all going to whine incessantly . . . until replacement occurs.

[Dr. Ed 2]

Let's get real -- this is a White man being prosecuted by Blacks in Black-majority jurisdictions.

We don't think this way because we aren't racists -- but there ARE racists who will come out of the woodwork if Trump is knocked out of the race, and it will not be pretty.

[Estragon]

“Black-majority jurisdictions”

Do you have a source for this? Because I don’t think it’s true. I know you DONT MAKE STUFF UP, so let’s see your backup here, if you please

[not guilty]

"Let’s get real — this is a White man being prosecuted by Blacks in Black-majority jurisdictions."

Not true. According to Wikipedia, New York County was 13.5% Black or African American at the time of the 2020 census. https://en.wikipedia.org/wiki/Manhattan Fulton County, Georgia was then 42.07% Black or African American. https://en.wikipedia.org/wiki/Fulton_County,_Georgia

[Nige]

Not really the point, either. It's the Trumpist white supremacist streak.

[David Nieporent]

Let’s get real — this is a White man being prosecuted by Blacks in Black-majority jurisdictions.

Manhattan is 12% black, Mr. "I don't make things up." Washington D.C. is 41% black, Mr. "I don't make things up." Fulton County is 43% black, Mr. "I don't make things up." And the Ft. Pierce division of the SDFL is 14% black, Mr. "I don't make things up."

(All data per the 2020 census.)

[not guilty]

"Of the 12 jurors in Trump’s criminal trial, what percentage were non-whites or Jews?"

Why on earth does that matter?

[ObviouslyNotSpam]

To a racist or antisemite (or both) it's all that matters.

[Jason Cavanaugh]

To the racist anti-Semite:

Go suck-start a .45. Nobody will miss you.

[David Nieporent]

Of the 12 jurors in Trump’s criminal trial, what percentage were non-whites or Jews?

Hey, the troll is slipping. The way he wrote this, he's actually conceding that Jews are white!

[ah....Clem]

The stroke clearly did major damage to your faculties.

Hmmm. No mention of a stroke in this article from four days ago:
https://newrepublic.com/article/182542/decline-fall-federalist-societys-never-trumpers

It would certainly go a long way to explain the differences between his first post here at the VC last August and all the subsequent ones. Did he actually have a stroke and if so do you know when?

[ObviouslyNotSpam]

Well, something went pffft. In a seven-paragraph article, Steve manages to repeat himself multiple times, almost verbatim.

Specimen 1:
1. “This makes broader removal statutes necessary and proper so that talented people will not be dissuaded from running for the office of President of the United States.”

and

2. “This is necessary and proper so that talented people will not be dissuaded from running for President in the future.”

and

3. “It is also necessary to ensure that talented people will not be dissuaded from running for or holding federal offices in the future.”

Specimen 2:
A. “The House of Representatives should pass a bill, which is now before the House rendering such cases removable to federal court.”

and

B. “The House of Representatives can expedite that process by passing the removal bill, which is now before the House.”

Specimen 3:
I. “State judges are often elected, and they can sometimes be biased for reasons of race, sex, politics, or religion.”

and

II. “The sad truth is that state prosecutorial and judicial officials are, overall, somewhat more partisan and more lacking in legal wisdom than are life tenured federal judges. This is due to the fact that state judges and district attorneys are elected at the state level.”

Unless he’s purposely emulating the rhetorical style of a 12 year-old, this is a really weird way for a law professor to express himself in a legal blog.

[ah....Clem]

Well, this isn't even the wackiest post from the professor. Some of his earlier stuff is in the "There are no pronouns in the US Constitution" realm.

I'm just curious if there's anything beyond speculation and name calling behind the stroke allegation.

[Kazinski]

'“Boo hoo they’re 2 liberul” is not a valid complaint.'

Seems reasonable to me, for about 70 years the complaint about a lot of southern jurisdictions was they were too conservative and some people couldn't get a fair trial there, and in many cases they were right.

Even now half the commenters on this blog say the federal courts shouldn't allow the legal imposition of the death penalty across the states that have it because “Boo hoo they’re 2 conservative”.

Or they shouldn't be allowed to draw there own legislative and congressional districts, or craft their own restrictions on childhood elective medical treatments or abortion because “Boo hoo they’re 2 conservative”.

And would pass laws in Congress overriding conservative states and giving federal courts jurisdiction because “Boo hoo they’re 2 conservative".

[Rev. Arthur L. Kirkland]

"Seems reasonable to me"

That is because you are a disaffected, bigoted, antisocial misfit holed up in an off-the-grid hermit shack with your mail order bride and your Ted Kaczynski-inspired screen name, seething about a modern, improving America your substandard mind can't handle . . . and the precise target audience of a white, male, bigot- and spectrum-hugging blog published at a faux libertarian website for malcontents and culture war casualties.

Have you considered applying for a position at the Hoover Institution?

[Magister]

In fairness, previous posts from Kazinski suggest that he visited a brick-and-mortar bride shop in person rather than going mail order.

[Jason Cavanaugh]

"Seems reasonable to me, for about 70 years the complaint about a lot of southern jurisdictions was they were too conservative and some people couldn’t get a fair trial there, and in many cases they were right."

The argument there was not because of 'conservatism.'

"Even now half the commenters on this blog say the federal courts shouldn’t allow the legal imposition of the death penalty across the states that have it because “Boo hoo they’re 2 conservative”."

Show the receipts on that one, as I've not seen a single person make that claim for that reason.

"Or they shouldn’t be allowed to draw there own legislative and congressional districts, or craft their own restrictions on childhood elective medical treatments or abortion because “Boo hoo they’re 2 conservative”."

Again, nothing to do with being 'conservative,' unless you'd like to acknowledge that 'conservatives' are actually just racists.

Nice list of bullshit red herrings Kaz.

[Riva]

Criminals get prosecuted? Not, apparently if you’re the incompetent corrupt reptile named Joe Biden, or Hillary for that matter who actually orchestrated the Russian collusion fraud to corruptly impact the 2020 election, through a law firm cutout, and booking it as a legal expense. But I digress. While all the Trump criminal cases are garbage, the NY case stands out as substantively meritless and reeking with constitutional violations. And the motivation to bring this steaming pile of legal shit was political. Biden and his DOJ need to answer a few questions on this too. There should be a collateral federal action to enjoin this election interference.

[Riva]

Correcting a typo to forestall the inevitable a-holes, too numerous to list in this comments section. Hillary’s fraud was directed at the 2016 election.

[Sarcastr0]

As they say, if you run into an asshole in the morning, you ran into an asshole. If you run into assholes all day, you're the asshole.

[Dr. Ed 2]

If you truly believe that, seek competent mental health treatment, stat!

[Noscitur a sociis]

Hahaha! Even Dr. Ed has enough self-awareness to see how this could be a problem for him…

[Riva]

And case in point, although Sarcastr0 is an a-hole class all his own.

[Rip Murdock]

I’m sure you know that, as President, Biden is immune from prosecution per this longstanding (since 1973) DOJ policy.

[Riva]

While the corrupt reptile may enjoy some temporary immunity from crimes unrelated to any official acts as president, not sure he couldn't be indicted, but whatever the case, I'm willing to wait until 2025. But there's a whole bunch of other corrupt creepy democrats out there, just ripe for some indictments. Since they seem to really like lawfare, I would give it to them.

[Rip Murdock]

[David Nieporent]

Not, apparently if you’re the incompetent corrupt reptile named Joe Biden,

Joe Biden's so incompetent that Republicans can't find a single shred of evidence to support the notion that he's corrupt! A criminal mastermind who can completely cover his tracks so that a year-and-a-half long investigation turned up absolutely nothing, but incompetent!

Hillary for that matter who actually orchestrated the Russian collusion fraud to corruptly impact the 2020 election,

I see below you tried to correct it to the 2016 election, but that makes even less sense, since the Steele dossier — which was not the basis for the Russian collusion investigation — wasn't even made public out until after the 2016 election.

[Riva]

We've been through this before David. The intel backwashes recruited to lie about the laptop have been exposed. And plenty of other corroborating evidence and witnesses. Gaslight all you want, you won't make it go away.

[David Nieporent]

And yet, oddly, you still haven't identified one lie about the laptop, or any corroborating evidence or witnesses, if for no other reason than before one can have corroborating evidence or witnesses there needs to be something for them to corroborate.

[Riva]

No, oddly enough you continue to gaslight even after the intel pukes' lies have long been exposed. The laptop did not have "all the classic earmarks of a Russian intelligence operation” nor were “the Russians involved in the Hunter Biden email issue.” The intel pukes were recruited by the Biden campaign to write the lies because the Big Guy needed a talking point to distract from the evidence exposing his influence peddling scams as VP acting through his crackhead bagman son.

[David Nieporent]

The laptop did not have “all the classic earmarks of a Russian intelligence operation”

While I know that I am willing to defer to Riva's hard-won expertise as an intelligence analyst, sadly there are some people here who may doubt that his opinion on the subject carries any weight.

evidence exposing his influence peddling scams as VP

And yet, once again, you cannot identify any such evidence or any such scams.

[Riva]

You know who else who never believed the laptop “had all the classic earmarks of a Russian intelligence operation” or that “the Russians involved in the Hunter Biden email issue”? The intel backwashes recruited by the Biden campaign to write the letter, the head scumbag even later bragging about it (that would be Mike Morell, a former CIA director engaged by Anthony Blinken, then on the Biden campaign, Dave, just to enlighten you because you know jack shit). What did Mike brag about? “We think Trump will attack Biden on the issue at this week’s debate and we want to give the VP a talking point to use in response.” And why did this scumbags go to all this trouble? Not just to distract from the crackhead bagman Hunter’s colorful lifestyle. Probably had something to do with things like the May 13, 2017 email from the laptop describing how the “big guy” would get 10% of a deal with the Chinese energy company CEFC. But there’s other evidence, like visitor logs showing that corrupt reptile Biden met with the crackhead bagman’s partner Devon Archer in 2014 about the time Hunter and Archer joined the Burisma board. The board paying a $1milllion a year to a crackhead who knew nothing about Ukraine, E. Europe, or energy infrastructure in general. What did Burisma get out of it? Well we know about the firing of an investigating prosecutor at least. And there’s other evidence and witnesses but this is only a comments section.

Save your gaslighting bullshit for something else Dave. This is just embarrassing you.

[David Nieporent]

As always, Riva lies.

1. Nothing in the language Riva quotes — which is not "bragging"; the Russian bot is unfamiliar with the English language — says that these people didn't believe what the letter says.

2. Even if Morrell had said that, it would only speak to Morrell's belief, not to the beliefs of the other 4 dozen signatories.

3. But it's worse than that. Riva lied about what Morrell said! He truncated a sentence and put a capital letter at the beginning of it to disguise that. Morrell actually said that he “drafted the attached because we believe the Russians were involved in some way in the Hunter Biden email issue and because we think Trump will attack Biden on the issue at this week’s debate and we want to give the VP a talking point to use in response.” (Emphasis added.)

Yes, in other words, Riva took a sentence where Morrell said that he believed that it was Russian disinfo, cut those words out, and then claimed that Morrell "bragged" that he didn't.

4. That May 13 email in fact does not do what Riva said. It doesn't "describe" anything, let alone what the "big guy" — which he insists means Joe Biden, although the person who wrote that email has not, AFAIK, ever confirmed that — "would" get. There's a fucking question mark after those words. For the Russian bot Riva: a question mark indicates uncertainty, which is not what "would" means.

5. Once again, that CEFC transaction never happened. And, contrary to Riva's claim, there are no "things like" the May 13 email; there's just the May 13 email. That's why Riva keeps referring to that, specifically, but nothing else. Because there isn't anything else.

6. Once again, for the really slow: May 13, 2017 is after Joe Biden was a private citizen. So even if the deal eventually happened, and even if Joe Biden had gotten money for it, it wouldn't be corruption of any sort.

So, just to sum up: the entire evidence of corruption from the laptop is that someone asked whether, if a business deal happened, someone who might be Joe Biden would get some money from it during a time when Joe Biden was out of office.

There's not a single document showing Joe Biden's involvement in, or financial benefit from, any actual transaction that actually took place, let alone one from his time in office.

7. Do visitor logs show that Devon Archer went to the White House in 2014? Sure. Do they say anything about them discussing bribes to Joe Biden or anything like that? Of course not. And what was talked about? Well, here's Archer's testimony:

The, yes, meeting -- I met with Vice President -- then-Vice President Biden in the office next to the White House, the Vice President's office, like that formal office.

And it was -- I brought my son. We went into -- we did -- like, went into the armored cars and did some things -- you know, showed him the thick glass. And we -- this -- I mean, I think we have video that was, like, on Twitter, but basically we were talking about his paper-mache White House project for second or third grade.

Scandalous!

8. And then, again, you shift back to Hunter (not Joe's!) service on the Burisma board, simply showing you don't understand what Boards of Directors do. They got Hunter's service on the board, advising them on corporate governance (which requires no knowledge of energy infrastructure) and providing a bit of prestige to a company that had been plagued by scandal in the past. Same thing they got from adding the former president of Poland to the board at the same time.

9. And then once again, Riva references "other evidence and witnesses" but can't cite or describe any of it, for the obvious reason that there isn't other evidence or witnesses of anything relating to Joe Biden.

[Riva]

That’s a lot of nonsense to unpack. Now I’m a Russian bot? Maybe you could ask Morell to write another misleading and deceitful letter? Not sure why you’re continuing to gaslight on the China deal, or could you really be unaware that the crackhead bagman Hunter admitted in depositions that his creepy father was the big guy in an impeachment inquiry deposition? And the corrupt Biden crime family made millions from CEFC, which has close ties to the CCP. And Burisma had the crackhead on its board for the prestige that gave them? Ok if you say so.

[David Nieporent]

could you really be unaware that the crackhead bagman Hunter admitted in depositions that his creepy father was the big guy in an impeachment inquiry deposition?

I am aware that the New York Post recently made that claim. I am also aware that it is false, because I read the actual transcript.

Here it is: https://oversight.house.gov/wp-content/uploads/2024/02/Hunter-Biden-Transcript_Redacted.pdf

All you have to do is point to the spot where he "admitted" that. (You can't, because he didn't.)

[Riva]

Can't give up the gaslighting huh? That the corrupt incompetent Biden is the Big Guy is really beyond contestation. But I suppose being honest now is really not an option for you. Doubt you read the transcript, at any rate you failed to understand its import. The crackhead confirmed efforts to involve his creepy father in their business. But there's more, Tony Bobulinski also confirmed in testimony that the corrupt reptile Biden was the Big Guy. Just cut the shit. You insanely accuse me of being a Russian bot. What are you, a corrupt democrat bot?

[David Nieporent]

That the corrupt incompetent Biden is the Big Guy is really beyond contestation.

Yeah, that's not how it works. You don't get to make shit up and then say, "Actually, I don't have to prove it because it's true." It's beyond contestation that Riva is a Russian bot. And a serial killer.

The crackhead confirmed efforts to involve his creepy father in their business.

What he actually testified to is that after Joe Biden left office — in other words, when it by definition wouldn't have been corruption — some of Hunter's partners thought it would be great to have Joe Biden's name on their deals, and that Hunter thought it was crazy and that it never happened.

Tony Bobulinski also confirmed in testimony that the corrupt reptile Biden was the Big Guy.

Even if Bobulinski had any credibility, he cannot testify to what James Gillar meant when James Gillar said "Big Guy." Only James Gillar can testify as to what James Gillar meant.

Anyway, what's actually beyond contestation is that regardless of what James Gillar meant, Joe Biden was never involved in any of Hunter Biden's dealings and received not one penny from any of those dealings.

[Riva]

Do tell me then, who do you think the Big Guy is? Do you think any of the 51 lying intel pukes might know?

[ObviouslyNotSpam]

What is it you think is "corrupt" about someone trying to give 10% equity in a future deal to private citizen Joe Biden?

Does your assessment change if that said someone never gave "10% to the big guy"?

[David Nieporent]

Do tell me then, who do you think the Big Guy is? Do you think any of the 51 lying intel pukes might know?

I think one person knows, and that's the person who used the term, James Gilliar. Hunter testified he had no idea. Rob Walker, another of their business partners (cc'ed on the email in question), testified that he had no idea. (Bobulinski did testified it was Joe Biden, but he literally did the "Well, it's obvious" as his explanation for how he knew; he didn't claim to have any other basis for this knowledge.)

[David Nieporent]

What is it you think is “corrupt” about someone trying to give 10% equity in a future deal to private citizen Joe Biden?

Does your assessment change if that said someone never gave “10% to the big guy”?

That's what's so bizarre about the whole thing: this email is ultimately meaningless. Even if they're right that Joe Biden is the Big Guy and even if Biden was involved in this deal: so what? They're focusing on it precisely because it's the only thing they've got.

Out of the hundreds of thousands of other emails and texts and such on the laptop, do they have a single one that reflects Joe Biden's involvement in any other deal? No.

[Doug Heffernan]

Good gravy... this guy.

No one is above the law... except all former officers of the United States. Special removal procedures for special people. This is all super nutty stuff.

The nation made it this far without such accommodations. Generally because former officers of the United States had some minimal level of integrity and humility. Some famous guy said the experiment of the United States won't work without that, no matter the rules (laws).

[David Nieporent]

Congress should pass a broad removal statute that covers at least state criminal and civil claims brought against former Presidents of the United States. This is necessary and proper so that talented people will not be dissuaded from running for President in the future.

In my opinion, such a statute should apply not only to former Presidents of the United States. It should also apply to former Vice Presidents and to all former officers of the United States. One can easily imagine former Vice Presidents or officers of the United States being harassed by elected state prosecutors and judges. Even former members of Congress should probably be allowed to remove civil and criminal cases from state to federal court.

Or — and hear me out for a minute — we could do none of those things, because it's an incredibly stupid proposal.

[Mr. Bumble]

Wonder how the SC will come down on the immunity question?

[Riva]

And maybe unnecessary. As Professor Jed Rubinfeld has noted, President Trump's unlawful conviction would cause irreparable harm affecting the outcome of the next election. President Trump should file an action in federal court to enjoin the entry of the judgment of guilt until the federal courts adjudicate the likelihood of the success of a challenge on constitutional grounds to this lawfare garbage.

[LawTalkingGuy]

Younger Abstention. How does it work?

[Riva]

It doesn't apply here. Try reading the case instead of making reflexive smart ass responses. Or read my response below. Tell me how I'm wrong or shut hell up.

[LawTalkingGuy]

I read your response. You’re wrong. The three potential exceptions to Younger abstention don’t apply. First the statute he was charged under is not patently unconstitutional, and the Court has never found a statute to be patently unconstitutional. Second, the state courts are not inadequate forum to address his claims. He was able to present all his claims in the trial court, he has an appeal as of right, and an opportunity to further appeal to the NY CoA and then SCOTUS.

As for bad faith, you’re saying stuff but none of it is bad faith in the sense they meant in Younger. Bad faith under Younger needs to be viewed in the context of the Court’s prior decision in Dombrowski v Pfister, which did permit an injunction of further criminal proceedings. But that case involved an overly broad law aimed at expressive conduct that LA was “enforcing” against civil rights groups using warrants that lacked probable cause with no intention to gain a conviction for the purpose of continual harassment to chill their expressive conduct.

By contrast: Trump was indicted once under a common statute, they took the case to trial to obtain a conviction and then they did. None of his expression nor the expression of similarly situated people has been chilled by this prosecution. There wasn’t any Dombrowski level bad faith here. “Selective prosecution” wasn’t identified as a type of bad faith in Younger. Assuming he can show it, he already has a remedy for that in state court through appeals and post-conviction proceedings. (Not to mention federal habeas review). There’s no basis for an injunction.

“And the bad faith abounds. A vindictive selection political prosecution. We also have a prosecution on an indictment that didn’t specify a crime (because there was none) and unconstitutional jury instructions allowing a non-unanimous verdict, just to name a few more errors.”

What you just described is a feature of MANY criminal cases. None of which world qualify as an exception to Younger Abstention.

Defects in the indictment can be argued in direct appeal, as can jury instructions. And defendants have these issues all the time. You want a special rule for Donald Trump because you think he’s a special boy. He’s not though, he’s a regular defendant like anyone else entitled to the same procedural protections as anyone else. No more and no less.

And not for nothing, but Trump already tried a Younger argument in 2019/2020 when he tried to get the grand jury subpoenas of financial records quashed. The district court dismissed under Younger but the Second Circuit said younger wasn’t appropriate when the person involved is a sitting president. The Supreme Court declined to resolve the issue. If he actually had a colorable Younger argument post-presidency based on the traditional criteria, he would have moved to enjoin the proceedings over a year ago. But he didn’t.

[Riva]

Interesting. Well let’s say I disagree with your analysis on all points. There is nothing “common” about this case, from a DA campaigning to “get” the democrat’s political rival, to an indictment that failed to specify a crime, to a judge who was statutorily conflicted, to faulty jury instructions that allowed a non-unanimous verdict. One could also point out that there was no FECA violation (which of course the Manhattan DA had no jurisdiction over in the first place). The constitutional violations alone that occurred in this political prosecution are striking. What is happening here is no something that occurs in many criminal cases, it is something that has never occurred in any criminal case, unless I’m unaware of all those criminal judgments out there that involve one of the 2 chief contenders for the presidency and that could fundamentally impact a presidential election. But all that said, all you have demonstrated is a disagreement, which actually is something present in every case. Not that President Trump would have no case.

[not guilty]

"President Trump should file an action in federal court to enjoin the entry of the judgment of guilt until the federal courts adjudicate the likelihood of the success of a challenge on constitutional grounds to this lawfare garbage."

In light of 28 U.S.C. § 2283 and Younger v. Harris, 401 U.S. 37 (1971), and its progeny, Trump and his attorneys could be subject to Fed.R.Civ.P. 11 sanctions for such a filing. Not that that would deter Trump. https://www.courthousenews.com/wp-content/uploads/2023/01/Trump-v-clinton-order-sanctions-usdc-southern-florida.pdf

[Riva]

Nope "not guilty" dead wrong. Younger v Harris would not preclude an action for injunctive relief. Not sure if you ever read the case or just misunderstood it. It’s not that complicated so I’m going to assume bad faith on your part. In Younger, there was “no suggestion that the single prosecution against Harris [was] brought in bad faith… and the injury that Harris face[ed was] solely that incidental to every criminal proceeding brought lawfully and in good faith.” Under the facts, he was not entitled to equitable relief, although the court recognized that “[t]here may, of course, be extraordinary circumstances in which the necessary irreparable injury can be shown even in the absence of the usual prerequisites of bad faith and harassment” and that “[o]ther unusual situations calling for federal intervention might also arise.” Here, irreparable damages will occur if the hack Merhan is allowed to enter a judgement of guilt against President Trump, labeling him a “convicted felon” resulting in some voters voting against him on that basis. That can’t be undone. And the bad faith abounds. A vindictive selection political prosecution. We also have a prosecution on an indictment that didn’t specify a crime (because there was none) and unconstitutional jury instructions allowing a non-unanimous verdict, just to name a few more errors.

[David Nieporent]

In addition to the fact that such a suit would be 100% frivolous, I love how MAGA swerve back and forth between "This prosecution interferes with the election" and "Hahaha libtards this won't hurt Trump at all it just makes him more popular."

[Riva]

Have you always been a lying, gaslighting hack or has TDS just driven you over the edge?

[David Nieporent]

Have you always been this empty of substance?

[Riva]

Not much substance in your "100 percent frivolous" response above you obnoxious clown.

[BrotherMovesOn]

Is your husband as unhinged as you seem?
If not I would think that would be a problem.
More importantly, I'm curious as to your repeated use of the word "reptile" to describe the current President.
I've heard theories that the world's 'global elites', for example, the British Royal family, are actually non-human aliens. Reptilian and alien in biology but outwardly human looking. Is that what you mean?

[Riva]

You make a comment suggesting something as idiotic as that and have the gall to insult me? We could use snake if you prefer. Do you think there are snake aliens out there too? If you have a substantive response feel free but I doubt you have the brainpower to write it on your own.

[Krenn]

um.... how broadly are you defining "former officers of the United States." ? Depending on definitions, that would be what... 10 million people who were entitled to only ever face charges in federal court? basically any person who has ever supervised at least one other person in either the federal government or federal military?

[Blackstone]

What madness is this? If a crime occurs locally, then it ought to be handled in the local jurisdiction. It is no matter who is liberal and who is not. Anyway, Trump would most likely face a conviction in Federal court because the evidence and the law both scream his guilt. That will remain even if it is shown somehow that the prosecution is politically motivated. I think we can say that DJT has caused the ruin of yet another formally polished reputation. Bizarre!

[Mr. Bumble]

What’s bizarre is the absolute fear of Democrats that Trump may win in November and the lengths they will go to to prevent it.

[Martinned2]

The possibility that an illiberal man who has no interest in obeying the rule of law or the basic principles of democracy might be elected president seems like exactly the kind of thing that every right-thinking member of society should be very, very afraid of.

[Mr. Bumble]

Really? Then explain Biden.

[Krychek_2]

In case you missed it, Biden's son was convicted of three federal felonies earlier this week and Biden said he would accept the verdict and the rule of law. He didn't attack the judge or the prosecutors or the system. That strikes me as pretty odd behavior from someone you are now claiming is an illiberal man who has no interest in the rule of law.

But then, you knew that, and your tired old both sidesism has nothing to do with the facts. It's just tribalism. Maybe you could stop pretending otherwise.

[Balisane]

The charges Biden was convicted of were not some novel new theory. It was blatant and simple.

[Krychek_2]

You just keep telling yourself that the charges against Trump were based on a novel theory if it makes you feel better.

[Mr. Bumble]

Yes our history is replete with cases where a President was impeached twice (once when he was out of office) and the subject of multiple prosecutions (state and federal) for "crimes" no one had been prosecuted for before.

PS:
Not withstanding his claims you can rest assured Joe will pardon Hunter before he leaves office.

[Krychek_2]

Maybe that’s because we’ve never before had a president whose blatant flouting of the rule of law matches that of Trump.

[Mr. Bumble]

Pretty sure we have one now.

[Krychek_2]

You would think that.

[Dr. Ed 2]

Lincoln's suspension of the writ of habeas corpus in Maryland comes to mind....

[Mr. Bumble]

...and I would be right.

[Krychek_2]

If you were, there’s a first time for everything.

[David Nieporent]

1) Trump was not impeached when he was out of office.
2) Trump is also not the president.
3) History is of course not replete with cases where former presidents were prosecuted because it's not replete with cases where they committed crimes, let alone the specific crimes Trump committed.
4) Many people are prosecuted for falsifying business records or violating the espionage act. Not so much for trying to steal elections, because people don't normally do that.

[damikesc]

"In case you missed it, Biden’s son was convicted of three federal felonies earlier this week and Biden said he would accept the verdict and the rule of law. He didn’t attack the judge or the prosecutors or the system."

He also tried to give his son total immunity from all crimes with a laughable plea deal that a judge shot down.

[Krychek_2]

Ok so you don’t understand how criminal prosecution works. Biden Pere had nothing to do with that plea offer. It was made by a Trump appointed prosecutor.

[mulched]

He was appointed as special prosecutor by Garland.

[Krychek_2]

After having been appointed US attorney by Trump. But that aside, a president plays no role in individual prosecution decisions.

[Noscitur a sociis]

But that aside, a president plays no role in individual prosecution decisions.

Not that I think there’s any evidence of improper influence here, but this isn’t a very compelling argument. Obviously presidents can improperly interfere in a prosecution if they want to, so that fact that it would be improper isn’t itself evidence that it didn’t happen.

[Kazinski]

He was actually appointed as a fake special prosecutor until the IRS and FBI whistleblowers blew up the scam.

Then when he finally got the actual authority that Garland lied about, then Weiss salvaged some self respect and actually did his job.

[Sarcastr0]

LOL the whistleblowers return!

Your lack of shame remains a spectacle to behold.

[Kazinski]

Actually the Whistleblowers got their vindication in Court a couple of days ago.

They blew the whistle on the sham prosecution, blew up the plea deal, and now Hunter has been convicted of one felony and more to come.

Hunter and Joe aren't doing any victory laps over the Whistleblowers that got Hunter convicted.

[Sarcastr0]

Doesn’t take much for a conspiracy to be established!

All Dems are in on it and coordinating.

[Mr. Bumble]

True. Dems are the closest thing to the Borg in the real world.

[Sarcastr0]

Another conservative who doesn't understand Star Trek.

[David Nieporent]

He was appointed as special prosecutor by Garland.

That was after that plea arrangement fell through. But he was already a Trump-appointed US Attorney before that.

[ObviouslyNotSpam]

Apart from the fact that there is utterly no evidence that Joe Biden had anything to do with the aborted plea deal, the prosecutor who negotiated the plea deal with Hunter was indeed appointed by Donald Trump. When he became President, Joe Biden decided not to dismiss David Weiss (as he was perfectly entitled to do), but allowed him to carry on his investigation of Hunter Biden. Then, when the plea deal blew up, Joe Biden did not object when his AG elevated Weiss to Special Counsel. Special Counsel Weiss then prosecuted Hunter Biden, because Hunter Biden refused to agree to any plea deals which did not include full immunity from future federal charges.

Those are the facts. Joe Biden did not obstruct or interfere in the prosecution of his son in any way, shape or form.

[Don Nico]

K_2,
Of course, saying that is emotionally easier and more politically expedient for Mr. Biden at this point in time. He retains the ability to either pardon his son or commute any sentence at least until Jan.2025.
That does not mean he is going to do it.

[Mr. Bumble]

"That does not mean he is going to do it. "

You offering odds on that?

[Krychek_2]

If Biden pardons him I will understand but not approve. The morally proper thing to do is to not pardon him but that’s asking a lot of a father.

That said though, Biden has not been claiming that the charges are politically motivated bullshit, or attacked the judge, or the prosecution, or otherwise undermined the system. He’s not claiming his son is the victim of a political witch hunt. No, if he be pardons his son, it will be in full recognition that his son really is guilty and the system worked. That alone makes him a far better man than trump. Ethically, Trump is unfit to empty Biden’s wastebasket.

[Mr. Bumble]

Fair enough until the last two sentences.

[Don Nico]

"Biden has not been claiming that the charges are politically motivated bullshit,"
Correct and there is absolutely nothing politically or operationally to be gained by doing so.
If he let's his son go to jail, I'll buy your assessment at that time. Until then, he is doing what makes sense.

[Noscitur a sociis]

Biden said he would accept the verdict and the rule of law. He didn’t attack the judge or the prosecutors or the system.

Hunter Biden certainly isn’t going to accept the verdict: unless he gets pardoned, he’s going to appeal his conviction, and his arguments are going to almost certainly include attacking the verdict and accusing the prosecutors of politically-biased misconduct.

[Krychek_2]

And filing an appeal is legitimate though attacking the prosecution for political misconduct would almost certainly be a losing argument. But Trump has gone well past that. His comments have been nothing short of an attack on the system itself. He’s threatened the judge. He’s threatened family members of court personnel. And anyway, what Hunter says and what his father says are not the same thing.

[David Nieporent]

and his arguments are going to almost certainly include attacking the verdict and accusing the prosecutors of politically-biased misconduct.

He may well raise claims of selective or malicious prosecution or the like, but if so, it will be in the form of an appeal — not in the form of a series of deranged social media rants and televised calls to harm the prosecutor/jurors/judge.

[JesusHadBlondeHairBlueEyes]

It's almost as if we didn't already have 4 years of his presidency and the only undemocratic thing that happened was what all the Democrats/Deep Staters were doing to undermine him!

[ObviouslyNotSpam]

Obviously, we can't just let the States handle their own legal matters anymore--maybe we don't even need States?

[JoeFromtheBronx]

You ought to let this go but for whatever reason you no longer are following your past good policy of recognizing the limitations of Dear Leader.

[hobie]

So much stupid here.

"State judges are often elected, and they can sometimes be biased for reasons of race, sex, politics, or religion."

As has been explained to the rubes here ad nauseam: The judge doesn't bring charges. A jury of citizens does.

And since you're worried about judges with political bias, why not train your growing insanity on federal. Start with the Supremes.

[JesusHadBlondeHairBlueEyes]

Why didn't that corrupt fat lesbian Kagan recuse herself from that one gay case where she had previously been on the Federal side?

Why didn't that 1 foot in the grave fat diabetic recuse herself when her publisher that paid her $3M was before the court?

Is that a good start?

[Dan Schiavetta]

I thought I'd muted you. Will try again.

[Mr. Bumble]

Thanks for sharing. Be sure to let us all know if you're successful.

[JesusHadBlondeHairBlueEyes]

Clicking stuff with a mouse can be really hard for some people, maybe if you keep practicing you'll be able to click the right target this time!

Best of luck!

[Kazinski]

I did it right the first time.

[Don Nico]

I also muted him today. His nonsense had gotten to extreme to bear.

[Vryedni]

He was always obnoxiously extreme, but his comments were so sporadic that I just rolled my eyes and moved on. Now he seems to have upped his output, so he joins Ed, Frank and RAK in my village of the damned.

[Vryedni]

... and the racist of many names (currently "Balisane").

[hobie]

Except for all the childish ad hominems, yes, recusal would be warranted

[Balisane]

Don't forget the fat lesbian beans and rice eating Rican Sotomayor.

Those fat pigs belong in a zoo.

[hobie]

You know, you would happier at a blog where the participants are all like-minded white racist misanthropes....oh, wait

[Mr. Bumble]

Subbing for the Rev.?

And why are you here if that's the case?

[hobie]

I use 'misanthrope', he doesn't. You guys hate enough of the earth's population to qualify for the word

[Dan Schiavetta]

Ballsane: muted. Obviously.

[Mr. Bumble]

Obviously! So brave.

[Kazinski]

Me too.

I'm not afraid of arguments I disagree with, but I'd like to see an actual argument.

And that kind of middle school shock racism kind of just underscores the point that there isn't any argument to engage with.

[Mr. Bumble]

...and so, ignore. Plenty of school yard shit from both sides even from some of the more intelligent and educated commentators (the Rev. and the late Queenie for example).

[Sarcastr0]

Bumble:
"...the more intelligent and educated commentators (the Rev. and the late Queenie for example)."

[Dan Schiavetta]

“Even Evil has standards.”

[Rev. Arthur L. Kirkland]

"Don’t forget the fat lesbian beans and rice eating Rican Sotomayor. Those fat pigs belong in a zoo."

The right-wing law professors who operate this blog occasionally respond to comments, but not to comments along this line (the daily stream of disgusting right-wing bigotry that infects this white, male blog).

Is even one of the right-wing law professors willing to address the bigotry their blog publishes and cultivates? I don't expect Volokh, Bernstein, or Blackman to do it, for reasons that have become vivid and obvious over time. But Kerr? Post? Somin? Adler? Whittington? Any of you movement conservative "scholars?" Does even one of you have the courage or character to write anything about the multifaceted, everyday, conservative bigotry with which you have associated your names (and those of your unfortunate employers)?

Cowards. Paltry, partisan, disaffected, obsolete cowards. Culture war roadkill, and deservedly so. You did this to yourselves. I thank each of you for choosing the conservative side, because better Americans deserve better than to be associated with you.

[Stephen Lathrop]

A small point about diction. Where you wrote, “(the daily stream of disgusting right-wing bigotry that infects this white, male blog). You might better have chosen to say, “(the daily stream of bigotry from disgusting right-wing commenters who infest this white male blog.)”

In general, polemic suffers whenever it misses an opportunity to use, “infest.”

[Noscitur a sociis]

That would undercut Rev. Arthur L. Kirkland’s point, though, which is to condemn the posters for bigotry rather than just the commenters.

[Kazinski]

"The judge doesn’t bring charges. A jury of citizens does."

I hope you are as supportive about the infallibility of bodies of citizens when Trump is reelected in November.

Now: "how dare you question the integrity and judgement of a jury of citizens".

2016 and come November: "Half the country is morons".

[hobie]

"2016 and come November: “Half the country is morons”."

We use 'deplorables'. Hillary nailed it. And, it turns out, she was being kind

[ObviouslyNotSpam]

I happen to think Hillary was pretty deplorable herself, but she was certainly onto something with the MAGARINOs.

[Jason Cavanaugh]

You seem to have difficulty in keeping issues separate from one another. Perhaps you're going senile?

If you support Trump, you are in fact a moron. That's a completely different issue than claiming a prosecution is political when the charges were brought by ordinary citizens and a verdict rendered by other ordinary citizens.

[Nige]

‘I hope you are as supportive about the infallibility of bodies of citizens when Trump is reelected in November.’

Since you’re voting for a guy who doesn’t recognise that getting less votes in an election means he lost, I can see how the concept of decisions by bodies of citizens appalls you.

'2016 and come November: “Half the country is morons”.'

2020: the votes of the majority of citizens shouldn't count!

[hobie]

Great essay against the concept of federalism. And I agree. Alabama shouldn't be making laws against abortion. And Wisconsin shouldn't be going after rogue federal actors who tried to subvert their state's elections

[Sarcastr0]

Same timing for this silly post as last week just about.

[Mr. Bumble]

So?

[Sarcastr0]

Obviously seeing the posts the above YMMV, but Calabresi’s posts have become tiresome. Too idiosyncratic and out there for there to be any danger they’ll be widely adopted, and no fun to engage with because they’re execrable as arguments, not even holding up cosmetically.

Best support he’s got is your energetic but failed attempts at anklebiting around the edges. And the antisemite doing his performatively offensive broken record thing. The wiser of the MAGA supporters seem uninterested in defending this rot.

So I’m taking refuge in the pop-psychology of it all. What need is this meeting? How does this fit into Calabresi’s life? Is it just to drive weekend engagement?

We shall see if this is just 2 data points, or a trend.

Well, I shall see. You will just do insults and wankery.

[JesusHadBlondeHairBlueEyes]

>Well, I shall see. You will just do insults and wankery.
...

holy hell, it really is true. Everything out of a commie's mouth is projection.

[Mr. Bumble]

...and you continue to refine douchery to a fine art.

[Rev. Arthur L. Kirkland]

"Calabresi’s posts have become tiresome"

What part of this blog has not become tiresome?

If you can't answer that question, you may be spending too much time at this flaming clustermuck.

[Mr. Bumble]

No sense of irony, heh?

[Rev. Arthur L. Kirkland]

I wish there were something to discuss at this blog beyond the tired, incessant stream of partisan right-wing bigotry, superstition, and belligerent ignorance.

But calling a bigot a bigot is always worthwhile, regardless of how often it occurs.

[ObviouslyNotSpam]

Have we considered the AI aspect?

[JesusHadBlondeHairBlueEyes]

Great comment! Really adds to the conversation!

[Krychek_2]

So suppose Trump's cases had been removed to federal court. Does anyone think the results would have been different? My bet is a federal jury would have reached the same conclusion the state juries did.

[JesusHadBlondeHairBlueEyes]

A DC one for sure. But not one in a place with humans.

[Dan Schiavetta]

Indeed.

I’ve researched this and as far as I can tell federal courts take jurors from the same database as state courts. A federal jury of “far-left” New Yorkers in the courthouse down the street would have come to the same verdict.

[David Nieporent]

I’ve researched this and as far as I can tell federal courts take jurors from the same database as state courts.

Well, not exactly. The Supreme Court of New York County draws jurors only from New York County. The SDNY draws jurors from the entire SDNY, which means the counties of New York, Bronx, Westchester, Rockland, Putnam, Orange, Dutchess, and Sullivan.

[Kazinski]

The NY charges wouldn't have lasted 10 minutes in federal court.

But in the scheme of things they probably helped Trump more than they hurt him. Bragg tainted all the court cases against Trump, and Fani didn't help, although her charges other than the absurd RICO might have actually had enough substance to stick.

I wonder if it was Trump's legal strategy all along to delay the DC and FL trials, in order to get Bragg up to bat first to poison the perception of the rest of the cases. But I doubt they can take credit for the Fani Fiasco, nobody is that smart, she did that on her own.

[Krychek_2]

On what possible ground would the NY charges have been thrown out? NY state law would have applied. The charges stated claims under NY law and there were disputed facts so it would have gone to the jury.

[Mr. Bumble]

"The NY charges wouldn’t have lasted 10 minutes in federal court."

Obviously, since the FEC and the SDNY and the previous Manhattan DA (and even Bragg originally) saw nothing there.

Only when lawyers from the DOJ moved to the Manhattan DA's office did this become a crime.

[Martinned2]

It's almost as if the FEC, the [US attorney for] the SDNY, and the Manhattan DA enforce different laws!

[Mr. Bumble]

Righto! What laws did Bragg finally enforce and why (after he initially passed on them)?
Did he take a course in creative law-fare compliments of the DOJ?

[Noscitur a sociis]

He charged Trump with violate New York Penal Law § 175.10, a New York State statute defining a criminal offense.

[David Nieporent]

Obviously, since the FEC and the SDNY and the previous Manhattan DA (and even Bragg originally) saw nothing there.

That is utterly false, and also irrelevant, since the FEC and SDNY do not have any role in enforcing state law.

[Mr. Bumble]

Cherry picker. Why did the Manhattan DA's office pass twice?

[SRG2]

Calabresi's argument is basically that Trump should be immune from going to trial but to show that he's not just singling out Trump, other politicians, too, should be immune.

[bernard11]

State judges are often elected, and they can sometimes be biased for reasons of race, sex, politics, or religion.

Federal judges are often elected, and they can sometimes be biased for reasons of race, sex, politics, or religion.

Regional biases against former Presidents are sometimes quite pronounced. The NY civil and criminal cases brought against former President Donald Trump are evidence of this fact.

No. It's not evidence at all. It's transparently circular logic. Classic question-begging.

[Mr. Bumble]

Which federal judges are elected and by whom?

[LawTalkingGuy]

I don’t know if he meant it this way, but federal judges are often former elected state judges or elected prosecutors/other officials. Federal judges are also often former political appointees for partisan jobs. Look at Kavanuagh: he was the staff secretary to the Bush WH after a career as fairly partisan lawyer.

[Mr. Bumble]

Quite a stretch to justify his statement (to which by the way he has yet to respond ).

[LawTalkingGuy]

“The sad truth is that state prosecutorial and judicial officials are, overall, somewhat more partisan and more lacking in legal wisdom than are life tenured federal judges.”

HAHAHAHAHA. Oh wait, you’re serious, let me laugh even harder, HAHAHAHAHAHAHAHAHA.

[Please, Daivd, Seek Help]

It is deeply weird even by the guy-with-dementia-at-a-nursing-home-yelling-about-the-peas standards of this post's author that the word "retroactive" does not appear anywhere in this post.

[ObviouslyNotSpam]

Please consider changing your handle to, “Please, Stehpen, Seek Help“.

[Estragon]

“I will vote for any Republican in the primaries over Trump or, if necessary for the Democratic Party’s nominee for President over Donald Trump.”

I’m surmising we’ve changed our mind on this, Steve?

[Mr. Bumble]

Slow learner but he finally did learn.

[Estragon]

“I am a Never Trumper because of the former President’s behavior on January 6, 2021 when he stirred up a crowd, started a riot on Capitol Hill to disrupt the counting of electoral votes, and then declined to call off the riot either with a Tweet or by calling out the National Guard.”

I wonder if he’s changed his mind about the severity of this or now believes that it didn’t actually happen?

[Mr. Bumble]

Why would the FBI and its agents pay attention to a Tweet?

[Estragon]

I see. False flag for you!

But I’m asking about Steve. Do you think he’s also come around to that… esoteric… view? Or has his conversion been a tad more cynical and career minded?

I hate to disappoint you Bumble, but my surmise is the latter. These posts have seemed just a tad formulaic for a true believer.

I would caution Steve about the road ahead— he may feel like things would go well for him under a new caudillo regime, and he might even be right in the short term… but movements like these have a way of eating their own after a time. The constant obsession with plots and enemies within has a way of becoming self fulfilling

[Mr. Bumble]

Why do you care about one man's change of position?

In the words of so many Dems, his position evolved because of events.

[Estragon]

It would almost be comforting to think he’s had some medical or psychological episode which has lead him to embrace some of the loonier theories out there (J6 was FBI!).

However that really excuses the personal agency at work here. Steve, in full possession of his faculties, has decided what is best for his future is to perform this kind of ridiculous about-face. That— to me— is actually more frightening than the stroke hypothesis/true believer alternative.

[Rev. Arthur L. Kirkland]

The other contributors to this blog are complicit. It seems not one of them has enough compassion, friendship, or decency to attempt to help this guy. Too busy trying to maintain their Federalist Society-Heritage Foundation-Republican Party-Cato Institute-MAGA street cred, apparently.

[Dan Schiavetta]

So many people who have criticized Trump are now sucking up to him. He’s out of office. I’ve never seen anything like it.

With Biden, who is in office, other Dems feel free to criticize him. This was also true of Obama.

[Mr. Bumble]

I know you've claimed financial problems but you really ought to seek psychiatric help. I'm sure there is a free Dem program for that.

[Estragon]

Christ, what an asshole

[Estragon]

Is there a program for people addicted to spamming comment threads with ankle biting shitposting?

37 comments out of 147 and counting! Please put your 38th below:

[Mr. Bumble]

Sorry I broke the site with my 37 "shit posts" many in response to you.
Didn't know about the Estragon limit.

[Estragon]

In the words of a very famous person from my hometown: if you don’t know— now you know.

Try to keep it below 10% of the total, muchambo. It’s not like you’re contributing any substance… although I wish you would try. I could use a laugh. Testimony isn’t evidence!!!!

[David Nieporent]

Is there a program for people addicted to spamming comment threads with ankle biting shitposting?

Come on; have some compassion. That's all Bumble is capable of.

I don't really understand — as I've said before — the point of these people. That goes for Kirkland also. They contribute nothing and since they're not posting under their real names, what do they get out of it?

[Estragon]

Rev in the same basket, I agree.

[Nige]

They just seem to follow the grooves they’ve worn in their keyboards. Bumble probably had to replace all the ‘douche’ keys three or four times by now.

[David Nieporent]

Or has his conversion been a tad more cynical and career minded?

I hate to disappoint you Bumble, but my surmise is the latter.

He's a tenured law professor and he's 66 years old. Unless he really desperately wants to be AG for some reason, there's no career path here from these posts.

[Estragon]

He’s trying to stay off the enemies list if Trump wins, preemptively. That in it of itself is terrifying. He’ll be fine if Biden wins but is covering his bases. Very sobering to see from someone in his position.

[BrotherMovesOn]

RAK is an attorney and has plausibly led the richly varied life and career he has described. Agree or disagree (or a mix) with his posts as you wish.
Bumble is a bitter seventy-something retired auto parts manager who lives Trump and spends his golden years here, throwing out the occasional ethnic slur, and posting 5th grade insults against practitioners who might tend to disagree with his Brietbart and NY Post legal analysis.
Estragon. Are you kidding me?

[Estragon]

Don’t get me wrong— RAK’s criticisms of the operations here are not misplaced. And we are in agreement on many things. But I would struggle to characterize his contributions, after these many many years, as much more than iterative ankle-biting shitposting.

And to some degree I think he would agree with that— after all, the work is never done. And some ankles deserve to be bit.

Bumble is a troll but I like seeing him step on rakes like sideshow Bob every now and again. Life is a rich and varied tapestry and all that…

[BrotherMovesOn]

10-4

[Estragon]

Goes back to what I said the other day: You cannot be a republican in good standing in 2024 and also publicly accept the 2020 election results. Denialism is the line now— refuse to toe it and you’re as dead to the GOP as Liz Cheney.

[ObviouslyNotSpam]

But Larry Hogan?

"At this dangerously divided moment in our history, all leaders—regardless of party—must not pour fuel on the fire with more toxic partisanship. We must reaffirm what has made this nation great: the rule of law..."

"You just ended your campaign."

"He doesn’t deserve the respect of anyone in the Republican Party at this point, and quite frankly, anybody in America, if that’s the way you feel."

"I’d like to see him win. I think he has a good chance to win."

Friends close, enemies closer?

[Estragon]

If state level prosecutions of officers should be removed to federal court, how about state-level declination decisions? Could those also be removed and argued in front of a federal judge?

[cannpro]

What's with his weird habit of randomly bolding insignificant sentences. Is Calabresi off his lithium?

[Estragon]

It’s to visually pump up otherwise weak or unsupported arguments

[LawTalkingGuy]

It’s a favorite habit of the worst legal writers. And it’s also a habit correlated with the worst lawyers.

[Rev. Arthur L. Kirkland]

These strange affectations (and assaults on standard English) have become a fad among disaffected right-wingers. Random capitalization is the obvious, but not the only, example.

Misfits gonna misfit.

[Lee Moore]

Leaving aside the merits, or otherwise, of this proposal, what is the constitutional basis for a federal power to remove a case from state courts and hand it to federal courts ?

Since it's been done before, presumably people think there is such a basis, but it would be nice to know what it is. Of course I appreciate that if there's a federal law saying "Yo, state, you are to stop trying that case right now !" and saying "Yo, federal court you have authority to hear this case !" then the supremacy clause will kick in and give that federal law supremacy over any state laws.

But only if that federal law has a sound basis in the constitutionally enumerated powers of the federal Congress. So what is it ?

[Voize]

In Tennessee v. Davis, 100 US 257 (1880) the power to remove a case against a federal officer was found in the Necessary and Proper Clause.

[LawTalkingGuy]

I don’t want to sound like Calabresi and say everything dumb is unconstitutional, but this scheme might have some constitutional problems.

There needs to be a federal hook to make removal valid under Article III. “The defendant is a former federal official or member of Congress being charged or sued for something unrelated to their official duties” would likely not be enough to be considered a case arising under federal law.

Calabresi seems to suggest that because Trump has federal constitutional defenses in his civil and criminal case, then that is the federal question. Of course this would require Congress to create an exception to the “well-pleaded complaint” rule for federal question jurisdiction in civil cases and create a new form of federal removal for criminal ones. This is theoretically possible under Article III.

But there is a reason they wouldn’t do it for everyone: Every single criminal defendant in the United States has potential federal constitutional defenses. As for civil defendants, anyone can allege some kind of due process issue in their answer and try to make a federal case out of it. Making every case in the country a potential federal case would overburden the federal courts and probably have some major federalism problems even if an isolated reading of Article III arguably permits this.

So they just carve out a class of people for this benefit: former federal officers and legislators. Is giving this class something not available to other defendants a legitimate government interest for equal protection purposes? I’m not so sure. Calabresi says that these people can be subject to harassment campaigns by state government. But so are a lot of high profile people or people who become high profile due to happenstance. What makes former governors okay to harass by states but not former MOC? Or simply people the cops and prosecutors and judges don’t like because they’ve seen them before even if they’re not “high profile.” (Think about a guy who beat the rap on a serious charge that the prosecutor really wants to nail for something, anything).

Calabresi suggests that such a rule would make it so people aren’t dissuaded from entering federal politics/service. But wouldn’t this concern apply to federal candidates and nominees as well? It’s such a special carve out that it’s hard to articulate a legitimate interest here beyond: special boys and girls get special rules. That’s likely not enough to survive rational basis review (or at least is shouldn’t be).

[Stephen Lathrop]

It's humorous to watch all the lawyers on this blog posit counter-arguments to Calabresi's legal idiocy. Calabresi doesn't care about legal arguments. He only cares about getting Trump more convenient access to the corrupt venue most likely to quash all the cases against him—the U.S. Supreme Court.

[loki13]

Whenever I see a Calabresi post at this point, I feel like Ron Burgundy coming home and seeing what Baxter has done.

Prof Calabresi- you pooped in the refrigerator? I'm not even mad, that's amazing!

I guess after Blackman upped the ante with his, "Look, this standing decision totally owns the librulz because of this other case that had nothing to do with standing!" I shouldn't be surprised that Calrabresi would go full ... um, Tropic Thunder.

But here it is. "Hey, why don't we just let Trump remove state criminal cases to federal court, because ... um, Trump?"

Because I am not going to engage with any serious analysis of the issues, but I really think that the civil case and the criminal case against Trump were unfair!

Also? The civil trial against Trump (you know, the one where a jury found him liable in the E. Jean Carroll case) ... THAT WAS A FEDERAL COURT.

Eh, you can't make this up.

[Rev. Arthur L. Kirkland]

Has Calabresi disparaged the Trump-Carroll jury and verdict -- not just disparaged, but ranted about how it must be avenged, in line with a novel, severe, and delusional interpretation of law -- yet? If not, it's coming . . .

[loki13]

Yes, IN THIS POST!

"Any final legislation passed should allow the removal of civil as well as of criminal cases. Former President Trump's loss of a civil suit with damages assessed at around $450 million also presents major federal questions under the Due Process Clause of the Fourteenth Amendment, as well as presenting an Eighth Amendment excessive fines claim. Congress should pass a broad removal statute that covers at least state criminal and civil claims brought against former Presidents of the United States. "

Great. THAT WAS IN FEDERAL COURT!

I think once Calabresi remembers that (or, maybe, his lack of detail was because he didn't want the rest of us to remember it) he will say, "I mean, a federal court of judges that the president appointed. With a name that rhymes with Direne Bannon. And it only applies to Trump. Also? Trump can't be sued or have charges against him, anywhere, ever. That should be the law."

[Noscitur a sociis]

I assume he’s talking about the Trump Organization case.

[Dan Schiavetta]

Calabresi teaches Con Law at a respected law school? Is this true? How have his students reacted? The dean? Are students staying away from his classes now?

[Mr. Bumble]

Of course it's true because he identifies as a black lesbian.

[Nige]

Give it a few more posts, he might get there.

[loki13]

….um.

Ouch. Yes, you’re right. I am appalled that I somehow got snookered into making a totally stupid rejoinder (that didn’t need to be made) to a Calabresi post. Admittedly, it can be easy to mix up the two massive civil verdicts.

In my (not really) defense, I think I was assuming that he was trying to make a due process argument out of the punitives in the other case, because otherwise … what? It wasn’t a case against Trump, it was against the Trump Organization, with the individuals (and other entities) named for their parts in it. And it wasn’t a fine, it was an equitable disgorgement?

Sorry, brain hurting again. Anyway, appreciate the correction.

[Noscitur a sociis]

It doesn’t make a lot of sense, I just happen to remember Prof. Calabresi having an aneurysm about it a few months ago.

E.g. https://reason.com/volokh/2024/02/18/president-trumps-kafkaesque-civil-trial-in-new-york-state/ .

[Mr. Bumble]

Thread Hijack: (mostly because this seems to be the most active thread).
CNN announces rules for first presidential debate – muted mics and no notes

"Notable details include the absence of a studio audience, muted microphones except when a candidate is given time to speak, and each candidate’s presence at a uniform podium. No props or pre-written notes will be allowed on the stage, though candidates will be given a pen, a pad of paper, and a bottle of water."

https://www.washingtonexaminer.com/news/campaigns/presidential/3046498/cnn-announces-rules-for-first-presidential-debate-muted-mics-and-no-notes/

[Rev. Arthur L. Kirkland]

I hope Trump gets to use Trump Water, as a reminder of how many failures this chump has piled up during his inherited, silver-spooned, gold-toileted life.

[Botaglove]

:...so that talented people will not be dissuaded from running for the office of President of the United States."

In context this is one of the most hilarious things Calabresi has ever written. Oh no, we wouldn't want to stop talented people like Trump from running for office!

[MoreCurious]

Another weekend and another half-assed apologia from Calabresi, one of our favorite Trump-huggers. He concludes his pathetic plea with the statement "It is also necessary to ensure that talented people will not be dissuaded from running for or holding federal offices in the future." There's a simple solution to that imagined problem, professor, and it applies to presidents, vice-presidents, and every other holder of a federal office: comply with the law and live a moral, ethical, fraud-filled life. And in case you're missing the point, it's way too late for Trump to take that tack.

[MoreCurious]

[Mr. Bumble]

"moral, ethical and fraud filled"??

[MoreCurious]

Fraud-free, of course. But I suspect you figured that out yourself.

[Rip Murdock]

The House can pass any bill it wants, but the chances of passing the Senate are <0.

[Rip Murdock]

Professor Calabresi‘s views on the presidency and the courts are no doubt colored by his prior employment in the Reagan White House and with Ed Meese.

[Estragon]

I think the category error we are all making here is that the commenters are not really the intended audience for these posts. Nor are the arguments therein meant to be taken seriously, from a con law perspective. The frantic pace and thin reasoning smack of internet search padding more than anything. After all, the Trumpists have talked about auditing social media and public posting of potential appointees. Steve needs to push the earlier stuff down the search results list.

[SRG2]

Nice article on Calabresi: https://ballsandstrikes.org/legal-culture/steven-calabresi-donald-trump-federalist-society/

[ReaderY]

The article’s thesis is that Mr. Calabresi has not become mentally deranged, but has concluded that his only hope of going back to being an important influencer is to ask for forgiveness for his heresies and exude MAGA orthodoxy, complete with screed capitalization and other stylistic features. His posts are not intended for a legal audience in the usual sense. They are intended for Trump and his inner circle, to get them to lift the pariah status which has made him a nobody who is no longer invited to parties.

[Jason Cavanaugh]

That was an enjoyable read.

[ReaderY]

A remarkable journey from serious conservative legal scholar to authoritarian propagandist and general all-around ass-kisser.

[caplane8119]

Professor Calabresi neither sat for nor passed the Bar exam. This is a fact--one that he will readily confirm. So, it's little wonder that despite his lofty academic record, he does not know what he is talking about. Not only has he never argued a case in court, he has never represented a client in court because he is "barred" from doing so.

[loki13]

Well, then I am even more concerned about this-

"I taught Federal Jurisdiction for at least fifteen years at Northwestern Law School, from 1990 to 2005 ..."

Federal Jurisdiction (I assume that's the same class that many other schools call Federal Courts?) is a great, important class. It was one of the best classes I took, taught by one of my school's finest professors, and I still use the lessons I learned from it.

I am now very concerned about Northwestern Law grads....

[ObviouslyNotSpam]

I can find no corroboration for that claim. How does one clerk for a federal judge (not to mention several of them) without having ever sat for or passed the bar? Most clerks begin their clerkships after taking the bar exam, and become lawyers during their first year (which is usually their only year) as a law clerk. And then he worked in the Reagan and Bush administrations--again, not as a lawyer?

[Peter Gerdes]

The shit about the 1a violation is ridiculous but this is still a decent idea.

If you think Trump was justly and appropriately convicted what's the harm? I mean if the process was fair here do you think the same process in federal court would somehow be less fair? Even if you think that about this case what about all the other state courts.

Besides if it happens in federal court it will have even more legitimacy and fewer grounds on which to critisize.

[loki13]

The big deal is that ... well, that's not America.

Yes, if you acting within the scope of your (federal) job, that's one thing.

But we don't create a noble class that forever gets special treatment. That's not how it works.

Or, at least, how it is supposed to work.