Author Topic: The Trump Presidency  (Read 108263 times)

Offline grmcdorman

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Re: The Trump Presidency
« Reply #1680 on: November 19, 2020, 10:13:32 AM »
So it appears that we're now in the next step of the attack on free and open elections; it turns out that the plan seems to be to leverage the destruction of trust to allow Republicans to simply declare the vote invalid and select their own electors. That would be an oligarchy at best, not a democracy. Long live el Presidente!

https://globalnews.ca/news/7469291/michigan-detroit-wayne-county-vote/ (split along party lines, the Republicans reversed themselves after an outcry)
https://globalnews.ca/news/7471739/trump-new-pennsylvania-election-lawsuit/ (Trump asks court to certify him the winner despite trailing in votes)

I recall there is also a report of a Republican pressuring a state official (governor?) to certify Republican electors instead of those indicated by the voting results. Can't find the story right now, though. EDIT: The Republican congressperson did deny it, so not really verified of course. Not the only report of thinking along these lines, though.

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« Last Edit: November 19, 2020, 10:17:31 AM by grmcdorman »

Offline gillianren

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Re: The Trump Presidency
« Reply #1681 on: November 19, 2020, 10:21:15 AM »
I would guess that the only person who thinks Giuliani is even remotely competent is Trump himself.  He may have been a reasonably capable lawyer at one time, but the last few years (decades?) have been a catalogue of disasters.

I believe he did good legal work against the mob decades ago.  It's been a heck of a slide since those days.
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Offline Zakalwe

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Re: The Trump Presidency
« Reply #1682 on: November 19, 2020, 10:41:13 AM »
I would guess that the only person who thinks Giuliani is even remotely competent is Trump himself.  He may have been a reasonably capable lawyer at one time, but the last few years (decades?) have been a catalogue of disasters.

I believe he did good legal work against the mob decades ago.  It's been a heck of a slide since those days.

Dementia does that to you.


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Offline molesworth

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Re: The Trump Presidency
« Reply #1683 on: November 19, 2020, 10:53:22 AM »
I would guess that the only person who thinks Giuliani is even remotely competent is Trump himself. 

I guess Rudi himself also hás some delusions of greatness.
But even Sean Hannity  hides behind  “I heard from more than a few people that he was absolutely brilliant in his arguments today,”
"brilliant in his arguments"  ;D

The last report I saw about him was in a case about minor quibbles in the counting procedures, where he started going on about fraud and promoting various conspiracy theories.  The judge eventually asked him what relevance any of it had to the case being considered, and he admitted there wasn't any and shut up for the rest of the case...  :)
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Offline Zakalwe

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Re: The Trump Presidency
« Reply #1684 on: November 19, 2020, 02:50:01 PM »
https://www.politico.com/news/2020/11/19/trump-campaign-drops-lawsuit-michigan-438220

Thats the last of the current cases dropped with a resounding loss to Trump and his genius lawyer. Apparently Trump has tweeted that there's going to be another major press conference today.

https://twitter.com/realDonaldTrump/status/1329408856733184008

Apparently it's being held at the Ritz. Which are to be found on Aisle 12....

"The strain of anti-intellectualism has been a constant thread winding its way through our political and cultural life, nurtured by the false notion that democracy means that 'my ignorance is just as good as your knowledge.' " - Isaac Asimov

Offline jfb

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Re: The Trump Presidency
« Reply #1685 on: November 19, 2020, 03:17:33 PM »
I would guess that the only person who thinks Giuliani is even remotely competent is Trump himself. 

I guess Rudi himself also hás some delusions of greatness.
But even Sean Hannity  hides behind  “I heard from more than a few people that he was absolutely brilliant in his arguments today,”
"brilliant in his arguments"  ;D

The last report I saw about him was in a case about minor quibbles in the counting procedures, where he started going on about fraud and promoting various conspiracy theories.  The judge eventually asked him what relevance any of it had to the case being considered, and he admitted there wasn't any and shut up for the rest of the case...  :)

Hannity has taken Prothero from "V for Vendetta" as his role model.  He's there to serve you fresh, hot, steaming propaganda. 

But make no mistake, while the lawsuits are legal disasters on par with the Hindenburg running into the Titanic in the middle of an earthquake, as a PR strategy they are succeeding brilliantly.  A majority of Republican voters are now convinced Trump won the election and that the Democrats are trying to steal it through massive, coordinated fraud.  Doesn't matter that there's no actual evidence, doesn't matter that it isn't true, millions of Americans now believe it as gospel, and many of them are armed. 

AND THE REPUBLICAN PARTY IS JUST STANDING BACK AND NOT SAYING BOO ABOUT IT.  Mitch and co. are perfectly fine with this. 

Don't remember if it was Kristol or Frum, but they warned that the modern conservative movement would sooner abandon democracy than conservatism if it kept them in power, and that's exactly what's happening. 

There will not be a willing, peaceful transfer of power.  Trump and the GOP are delegitimizing Biden's Presidency from the outset.  There will be violence in January, things will get shooty, and police departments across the country are staffed by nationalists and white supremacists. 

Things are about to get really bad. 
« Last Edit: November 19, 2020, 03:27:04 PM by jfb »

Offline molesworth

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Re: The Trump Presidency
« Reply #1686 on: November 19, 2020, 04:45:23 PM »
... Apparently Trump has tweeted that there's going to be another major press conference today.

Oh dear!  I've watched a few extracts from this (I'll spare you the horrors of a link) and it's yet another disaster.  More unsubstantiated claims and conspiracy theories, including the amazing news that Hugo Chavez had the voting machine software rewritten (from beyond the grave) while in league with "communists" and other "foreigners".  Plus Giuliani (mis-)quoting "My Cousin Vinnie" and having to mop up the hair dye running down his face.

I honestly think all satirical outlets and sketch shows will now have to pack up, because they really couldn't top this...  ;D

PS - even the Trump YouTube streaming team were laughing at it, as captured when they accidentally(?) left their mics live  ;)
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Offline JayUtah

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Re: The Trump Presidency
« Reply #1687 on: November 19, 2020, 06:12:10 PM »
Oh, good grief, that Giuliani audio is painful.  Opposing counsel tore him to shreds.  The hearing was on a motion to dismiss, which was immediately a fiasco since Mr Giluiani ranted at length -- as the article points out -- about points that the Trump campaign had deleted from the complaint.

Yes, he's alleging it to be "widely reported" that mail-in ballots are unacceptably susceptible to fraud.  But of course he can only cast vague aspersions, and this fails to create Article III standing under federal law.  There is no concrete, particularized harm to an individual voter or to the campaign.  This is when it's very important to dismiss claims "on a technicality."  In order for there to be a "genuine case or controversy" so that a claim becomes actionable under Article III of the Constitution, it must be concrete (not hypothetical) and particularized to the claimant (not just vaguely bad for everyone).  This particular element of "standing" is what keeps everyone from suing everyone for everything just because they're displeased at something.

As reported in the article, the telling moment is when the judge asks Mr Giuliani to state and defend a level of scrutiny to apply, and Mr Giuliani doesn't understand the question and asks for "normal" scrutiny.  That's ludicrously incompetent.  As I said before, the Equal Protection clause of the 14th Amendment is the HP Brown Sauce of modern constitutional jurisprudence:  it gets slathered on everything.  But a longstanding, crucial part of arguing an Equal Protection issue is justifying which of the three judicial levels of scrutiny -- a basic element of law -- your side thinks should apply.  You can win or lose your argument depending on the outcome of that ruling.  You have "rational review," "heightened scrutiny," and "strict scrutiny."  The judge was asking Mr Giuliani to select from those three well-known options, and the poor man had no clue what he was being asked.
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Offline Peter B

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Re: The Trump Presidency
« Reply #1688 on: November 22, 2020, 07:48:16 AM »
So I see the Pennsylvania case has been dismissed in favour of the defendants: https://www.documentcloud.org/documents/7331957-Judge-Brann-Decision.html

At the end of the first paragraph of the judgement it says: "Therefore, I grant Defendants' motions and dismiss Plaintiffs' action with prejudice."

Is there anything significant in the words "with prejudice" or is it standard legal wording in these sorts of documents?

And I see that Trump has said he'll appeal. Where would that appeal be held? Would he have to seek leave to appeal or would the appeal be automatically heard?

A couple of other questions come to mind...

The judge says that the individual voters didn't have standing because they sued counties which allowed voters to fix mail-in ballots, when they should have sued their own counties which didn't allow voters to fix mail-in ballots. That seems a pretty fundamental mistake to make. Do you think perhaps they were so anti-Democratic Party that it simply didn't occur to them to sue the people actually responsible for their disenfranchisement, and do you think it might have made a difference to their case if they'd done so?

Also, if this was about the Equal Protection Clause, does this clause only apply within states, or does it apply between states too? That is, can people try to make a case that their state should offer X the same way another state does?

Is there any significance that the judge didn't consider the third version of the case? Or is that because it had already failed in so many ways that this wasn't necessary? Could that be used as a ground for appeal?

Finally, I think I might have found an error in the judgement. On page 11, under "D. Plaintiffs' Claims" it says: "The general thrust of this claim is that it is unconstitutional for Pennsylvania to give states discretion to adopt a notice-and-cure policy." Shouldn't "states" read "counties"?

Offline Glom

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Re: The Trump Presidency
« Reply #1689 on: November 22, 2020, 11:05:10 AM »
I thought it meant they couldn't appeal.

I can't imagine that Equal Protection would affect interstate comparison when the ruling is from a state court. Since the US Constitution says nothing about how states should decide what electors to send, I can't see a federal court deciding that either.

Offline Zakalwe

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Re: The Trump Presidency
« Reply #1690 on: November 22, 2020, 11:31:32 AM »
Yes, it means that the case cannot be re-submitted to this court again.
The legal equivalent of two doormen picking you up by your collar and belt and throwing you out of the bar onto the pavement.
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Offline JayUtah

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Re: The Trump Presidency
« Reply #1691 on: November 22, 2020, 10:02:58 PM »
Is there anything significant in the words "with prejudice" or is it standard legal wording in these sorts of documents?

It is very significant.  It means the Trump campaign is permanently barred from bringing these allegations again against the same defendant in that court.  Now it also occurs routinely when a case is settled without going to trial.  The plaintiff agrees to withdraw the complaint, which is then dismissed by the court with prejudice, in order to give legal strength to the settlement.  But when an unsettled case is dismissed with prejudice -- on a defendant's motion to dismiss, and without leave to amend, no less -- that's an indication of an exceptionally defective complaint.  It's a judicial sledgehammer.

And this was what Rudolph Giuliani was strenuously trying to avoid in his oral argument.  He was urging the court to quickly deny the "frivolous" motion to dismiss so that the court could hear his evidence of widespread voter fraud.  As in other cases, the Trump campaign's "evidence" consists of a few affadavits and a slew of conspiracy theories alleging shenanigans in Democrat-controlled precincts.  Here the problem was that the complaint itself was irredeemably defective.  If a claim is insufficient, the court must decide on those grounds instead of moving on to the merits.  That's basic trial law.  And Mr Giuliani largely ignored it.

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Where would that appeal be held? Would he have to seek leave to appeal or would the appeal be automatically heard?

The appeal would be heard in the Third Circuit Court of Appeals, whose seat is in Philadelphia.  The court must hear the appeal.  Only the U.S. Supreme Court has broad discretion in what cases it will hear.  However, most appeals are not heard en banc.  This one will be heard by a three-judge panel drawn at random.  A rehearing en banc is uncommon.

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The judge says that the individual voters didn't have standing because they sued counties which allowed voters to fix mail-in ballots, when they should have sued their own counties which didn't allow voters to fix mail-in ballots. That seems a pretty fundamental mistake to make.

It does in hindsight.  But as Judge Brann notes in his ruling, the argument in the amended complaint was a mashup of prior arguments.  The original theory of harm wasn't quite as obviously misdirected.  The complaint was that Pennsylvania Secretary of State Boockvar erred in preventing all counties from allowing voters to cure their defective ballots.  Therefore they say the counties that did so violated the Equal Protection clause by extending to voters in their counties a privilege that wasn't permitted in other counties and isn't mentioned in Pennsylvania law.  Since Pennsylvania courts had already ruled that counties cannot be required to allow ballot-curing (and say nothing about forbidding it), it's not completely out of the question for the plaintiffs to have considered the lenient counties to be the ones in error.

But yes, the all-important need to connect a particularized injury to the challenged action of the named defendant is basic law.  Whoever wrote the amended complaint missed it, a fact that certainly was not lost on defendants' counsel in oral argument.  In fact, the rebuttal was so vigorous that Mr Giuliani commented on how defendant's counsel "got so angry at [him]."  The individual voter plaintiffs were effectively denied their right to vote by the counties they lived in, not the counties they named in the complaint.  Had those counties not allowed voters to cure their ballots, it still would not have affected the plaintiffs' right to vote.  That's a pretty important point to miss.

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Do you think perhaps they were so anti-Democratic Party that it simply didn't occur to them to sue the people actually responsible for their disenfranchisement...

No.  I think it's just sloppy lawyering, and the result of the tumultuous procedural history:  the churn in counsel during the crucial days before oral argument.  Mr Giuliani seems like the only lawyer who wanted this case.  But the result of shuffling people around during the time when you're supposed to be amending complaints, writing briefs, and preparing for oral argument is exactly this sort of Frankensteinian argument in the amended complaint.  But we can't lose sight of the idea that these lawsuits are intended to get large numbers of votes thrown out.  They're not intended to restore the voting rights of individuals whose votes were not counted.  That's just the cover story.

It looks like they may have originally intended to argue along the lines of Bush v. Gore and say that any difference in the criteria for accepting ballots constitutes an Equal Protection violation.  The problem in Bush was that no statewide criterion had been issued for what constituted a decisively marked ballot.  Thus ballots were accepted or rejected according to nonuniform standards.  As such, that was deemed an impermissible exercise of individual discretion.  But more importantly -- and this becomes relevant down the page -- the ruling was that no such criterion could be implemented prior to the deadline established in statute to certify the vote, therefore only the ballots that could be certified in Florida according to their existing standards could be allowed.  This gave G.W. Bush the electoral votes.

Instead, in Pennsylvania, counties exercised discretion in whether they would allow ballot-curing.  And in all the states I know about, it's perfectly allowable -- even encouraged -- for county election officials to tailor balloting practices to the specific needs of their communities within the broad guidelines of state law.  Specifically, managing scarce resources or accommodating peculiar challenges or reducing administrative burdens are considered well within the discretion of local authority.  When the exercise of this discretionary authority to do or not do a certain thing a certain way creates differences, it does not automatically constitute an Equal Protection violation.

In legal reasoning, the ability to distinguish the instant case from its supposed controlling precedent is critical.  Judge Brann's attempt to do so starting on page 34 will certainly be tested.

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...and do you think it might have made a difference to their case if they'd done so?

It would have made their case less obviously stupid.  But they would have just had other problems.  The individual plaintiffs should have sued their counties and asked that their votes be reinstated.  But the Pennsylvania Supreme Court had already ruled that counties cannot be required to allow ballot curing.  So while the theory of harm is sound, the court would have no mandate to apply the prayed-for relief, and the plaintiffs once again fail to establish standing.

You have to ask for a remedy that is connected to a redress of the injury, and which the court is empowered to provide.  All of these lawsuits demand that ballots be thrown out.  A remedy for Tom that means disenfranchising Dick and Harry of their lawfully cast votes is not a remedy a court can grant.

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Also, if this was about the Equal Protection Clause, does this clause only apply within states, or does it apply between states too? That is, can people try to make a case that their state should offer X the same way another state does?

The Equal Protection clause only applies to people who are subject to the same laws.  No, I cannot use the Equal Protection clause to say that Utah law should provide the same labor protections as California law.  (California labor law famously -- or notoriously -- favors employees.)  That said, States most definitely look to each other for ideas about good government.  As I said, Utah has voted by mail for many years.  I would hope that many other States looked to us this year as an example of how it could be done.  But there's no legal requirement arising from Equal Protection that says Texas has to allow mail-in voting just because Utah does.

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Is there any significance that the judge didn't consider the third version of the case? Or is that because it had already failed in so many ways that this wasn't necessary?

I assume you're asking why the judge denied leave to amend the complaint a second time, which would have resulted in a third hearing of the matter.  Judge Brann justifies his denial with three reasons:  (1) it's the second time amending, (2) it's to undo the first amendment, and (3) Pennsylvania certifies its vote count on Monday.  The proposed amendment has to be submitted as part of the petition for leave to amend, so that the judge can fairly determine whether to grant it.

The expectation in federal court is that the complaint won't be filed at all until it's ready to go in all respects that could reasonably have been foreseen prior to the filing.  While there's no fixed limit to how many times you can amend your complaint, it's customary to need only one amendment.  And when your second amendment wants to undo the effects of the first amendment, the judge is not outside his authority to consider the whiplash effect on the adverse party and deny leave.  It falls under the heading of getting it right the first time, or at least by the second time.

Importantly, the defendant counties have an official duty to certify Pennsylvania's election tomorrow.  Allowing the plaintiffs to try a third time to get it right burdens that duty.  It incurs a higher burden of proof that their amended complaint will further the overall interest of justice if allowed to proceed.

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Could that be used as a ground for appeal?

Absolutely, on the grounds that Judge Brann abused his discretion.  This would be hotly debated on appeal.  However, there is guidance in existing case law.

The Federal Rules of Civil Procedure, which embody due process in federal courts, require that leave to amend be "freely given" in the interest of upholding substantive justice.  Judge Brann has discretion in whether to grant leave.  He abuses his discretion when he fails to give a reason, or the reasons he gives are deficient in any of a number of specific ways.  Or he abuses his discretion when either permitting or denying the amendment would prejudice the non-moving party, and he does the wrong thing.

Superintendent courts want to make sure justice is served in the courts they supervise.  That's generally best accomplished by letting the case play out at the trial level.  A plaintiff who loses his case wants to believe he was allowed to give it his best shot.  So on appeal, the rationale by which a judge prevents a plaintiff from giving it his best shot will be scrutinized and debated closely.  The standard is to grant leave to amend unless a contrary reason is given, which Judge Brann has done.  And the U.S. Supreme Court has outlined what those contrary reasons might look like.  Judge Brann quotes from that case.

Here, Judge Brann notes that what the plaintiffs want to do is reinstate claims they previously took out, claims that Mr Giuliani ranted about at length after the plaintiffs had conceded they were irrelevant by removing them from their complaint.  Generally removal of an allegation is a tacit concession that the plaintiff's emerging understanding of the evidence during hearings etc. has convinced him he cannot prevail on the claim.  In any case, Mr Giuliani's performance left little doubt what evidence for those claims was going to be.  The Supreme Court allows a judge to deny leave to amend if prior amendments have not substantially improved the pleading, supporting a belief that the claim is ill-formed at its core.  This pleading is a hot mess after its first amendment, so no.

The plaintiffs' reliance on Bush v. Gore will bite them here.  The Supreme Court disallowed a recount in Florida, even with appropriate ballot-inspection criteria, because it could not be done before the statutory limit on state certification of county votes.  While this is roundly criticized as the wrong decision, it could be cited here to support the notion that the timely certification of votes is more in the interest of justice than allowing plaintiffs to fumble their way through an ill-conceived court case.  The appeals court will certainly take note that plaintiffs knew, or should have known, that timeliness was a crucial factor to their chances, and to have obviated the need to refile their complaint so many times.  The judge cannot simply ignore the duties of the defendants with respect to the laws of Pennsylvania and of the United States.

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Shouldn't "states" read "counties"?

Probably.
"Facts are stubborn things." --John Adams

Offline Peter B

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Re: The Trump Presidency
« Reply #1692 on: November 23, 2020, 08:14:26 PM »
I see the GSA thingy did the whatsit.

I'm sure you know what I mean.

Offline JayUtah

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Re: The Trump Presidency
« Reply #1693 on: November 23, 2020, 08:39:00 PM »
Yes, a hitherto little known but very important acknowledgement, officially from the Trump administration, that Joe Biden will be the next President of the United States.  It was hitherto unknown because until now, the GSA wasn't working for a jackass President and simply acknowledged the outcome of the election without all the hoopla.
"Facts are stubborn things." --John Adams

Offline Obviousman

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Re: The Trump Presidency
« Reply #1694 on: November 23, 2020, 09:18:05 PM »
The pundits are saying that Trump will leave but never admit he was beaten. Looking at his track record, I think the pundits are correct. He'll continually claim he was robbed.