Extraordinary Wits

Plus: SCOTUS takes opioids––the Purdue Pharma bankruptcy case.

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After David Lat is publicly inducted into the AO family by undergoing a fan-based correction, he and David French run through an eclectic mic of legal topics, starting with an update on a heated chess lawsuit. Join the two as they discuss:

-Chess settlesment
-Mark Meadows’ risky testimony
-Amy Coney Barrett’s not so news-worthy comments
-Trump’s trial date conundrum
-Hardball playing out at the North Carolina Supreme Court
-Sackler family’s unpopular bankruptcy appeal via Purdue Pharma

Show Notes:

-Past AO episode on chess lawsuit

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Comments (65)
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  1. Avatar photo
    Bill Dyer (aka Beldar)

    Another data point of note on an early court challenge to Trump's eligibility, attempted by a group of voter plaintiffs in Florida, which has been dismissed for lack of standing. IMHO this was unsurprising, and I doubt it would surprise Baude or Paulsen: These seemed to be sort of "anyone has standing, just in the air" plaintiffs. They weren't anyone, per the Baude & Paulsen theorem, charged by law with enforcing ballot qualification.

    The federal district court quite predictably cited other crank cases brought on other qualifications challenges by citizens who could show no particularized injury, as in the lawsuits challenging Barack Obama's constitutional eligibility. Things might be different if it were a citizen acting under a private quo warranto right specified in a state as part of its regular elections code.And things would definitely be different if we're discussing a decision made by a state secretary of state applying the state election code.

    That's in fact one of Baude's and Paulsen's premises — that the means and manner of enforcement is going to vary dramatically, place to place, context to context, and forum to forum.

    But every one of them has a constitutional duty to enforce Section 3's disability as and how best can be done in that particular context. With house rules, as it were. (Which vary, house to house.) Which is to say, again: The word of the week for Section 3 enthusiasts is:

    Crowd-sourcing.

    Also: "Fifty laboratories of democracy!"

    ANYWAY: Friend and guest of the pod Jonathan Adler writes it up neatly: https://reason.com/volokh/2023/09/02/district-court-in-florida-concludes-voters-lack-standing-to-challenge-trumps-eligibility/

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  2. ErrantThoughts

    It's insane some Judge agreed that a bankruptcy decision can essentially indemnify a party who is not filing for bankruptcy from claims from people not party to the bankruptcy.

    Out of this world man.

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  3. Pohl

    Good episode. I skipped the bankruptcy part, though. For people who like watching chess and analysis, as I sometimes do, check out the great “sports” commentator Sagar Shah on YouTube. Obviously, he comments on many Carlsen games.

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  4. Avatar photo
    Bill Dyer (aka Beldar)

    Granular description of the remand hearing: https://www.lawfaremedia.org/article/mark-meadows-takes-the-stand

    Hat-tip to Marcy Wheeler at emptywheel.net, whose current frontpage subhead on her latest update reads: "It sounds like Mark Meadows may succeed in getting his trial removed to Federal court, but not dismissed." Link: https://www.emptywheel.net/2023/08/29/the-comings-and-goings-of-insurrection/

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  5. Avatar photo
    Bill Dyer (aka Beldar)

    Recall, gentle friends, that you read me predict here, a week or more ago, in comments on Dispatch Media articles about the Section 3 disqualification possibilities, that it would start heating up in a big hurry, and that it would be crowd-sourced — because Trump is vulnerable in every single place that he needs to be on a ballot?

    Politico is catching on. This is a pretty good take, meaning it's serious reporting on people who are taking this Section 3 stuff more than just a little bit seriously. Link: https://www.politico.com/news/2023/09/01/fourteenth-amendment-insurrection-clause-trump-00113790

    Meanwhile my personal favorite candidate — among the 50 laboratories of democracy that are considering, collectively and separately, their obligations to enforce Section 3 as written — remains Nevada, where there's an October 2-16 filing period for major-party presidential primary party candidates. Who have to swear in writing and under oath before a notary that they're eligible to take office if elected.

    Which Trump isn't, because he's a insurrectionary rebel or rebellious insurrectionist or both or either. And he took an oath of office beforehand, and now wants to take another, and hasn't gotten the required two-thirds vote of Congress relieving him of this lifetime, nationwide disability from resuming public office.

    So: Can he prove to the satisfaction of say, an administrative law judge or a state district court in the city and county of a state capitol who has jurisdiction over ballot challenges, by a preponderance of evidence that he's NOT?

    Because I think it's his burden of proof. And I suspect every other candidate, including some like DeSantis —who are making noises about not participating in Nevada at all unless the state GOP drops its insistence, contra state law, on holding caucuses instead of a primary — would have standing to challenge Trump's inclusion on the ballot, as, possibly, might private citizens suing quo warranto. And the Election Code, which specifies the primary applications window, gives us a nice, bright window of justiciability and ripeness! link: https://www.nbcnews.com/politics/2024-election/nevadas-primary-caucus-debacle-gop-campaigns-rcna102883

    [EDIT:] Extra credit reading:

    Nevada Revised Statutes chapter 293, section 2045, entitled: "Remedies in preelection actions challenging candidates who fail to meet qualifications for office; disqualification from taking office; removal from ballot or notification to voters at polling places; applicability": They're all set up to have injunction lawsuits over this stuff. Usually over other kinds of eligibility. And before you ask: Yes, this talks about eligibility under the constitution and laws of Nevada, but the preamble to the constitution of Nevada, guess what, adapts and incorporates by reference the Constitution of the United States, and Section 3 of the Fourteenth Amendment implies this disqualification test into EVERY position of elected office regardless of state law to the same, or even contrary, effect.

    https://www.leg.state.nv.us/nrs/nrs-293.html#NRS293Sec2045

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    1. Pohl

      “Who having previously taken an oath, as a member of Congress, or as an officer of the United States . . .” Would it have killed them to have explicitly added just 2 more elected officials to the list? As we’ve discussed before, though, it would be missing the forest for the trees to ignore that support for insurrection is the crux here.

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  6. Avatar photo
    Bill Dyer (aka Beldar)

    From In re Commonwealth's Motion to Appoint Counsel, 790 F. 3d 457 (3d Cir. 2015)(https://scholar.google.com/scholar_case?case=5539437264593415986):

    ===begin quote (some citations omitted)===
    "Section 1442(a) is an exception to the well-pleaded complaint rule, under which (absent diversity) a defendant may not remove a case to federal court unless the plaintiff's complaint establishes that the case arises under federal law." Under this statute, a colorable federal defense is sufficient to confer federal jurisdiction. Unlike the general removal statute, the federal officer removal statute is to be "broadly construed" in favor of a federal forum.

    The Removal Clarification Act of 2011 made two amendments to § 1442 that are relevant here. First, the Act clarified that the term "civil action" includes ancillary proceedings, so long as a "judicial order" is sought or issued. Second, it added the words "or relating to" after "for" in § 1442(a). The House Committee on the Judiciary wrote that the changes to the statute were meant "to ensure that any individual drawn into a State legal proceeding based on that individual's status as a Federal officer has the right to remove the proceeding to a U.S. district court for adjudication." Furthermore, adding the "or relating to" language is "intended to broaden the universe of acts that enable Federal officers to remove to Federal court."
    ===end quote===

    Broad universe of acts. A removal law intended when passed to be broadly construed, and recently amended by Congress for the express purpose of broadening it. For colorable arguments, for the purpose of deciding where the case will be heard, not whether they're WINNING arguments.

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  7. Avatar photo
    Bill Dyer (aka Beldar)

    Constructively intended criticisms, including many I might ultimately disagree with, nevertheless may qualify for one judge's reasonable interpretation of her duties to promote public confidence in the judiciary. The ethics complaint against her smacks to me as petty and vindictive — counterproductive, in fact, to public confidence in the judiciary.

    The canons of judicial ethics aren't a gag order. The oath of judicial office doesn't include an Omertà blood oath to protect a judicial priesthood. These canons are aspirational for all but extreme circumstances.

    [EDIT:]

    I'll give you an example of an extreme circumstance, from personal experience: The first district court case I ever tried to a jury was before a state district judge in Houston, long deceased now, named Jerry McAfee, who had many fine qualities but disabling idiosyncrasies. Among them was a reverence for history, and in particular judicial history, and even more specifically, an interest in judicial REGALIA — which was an interest he shared with the late Chief Justice William H. Rehnquist. (Hard-core nerds will recall that Chief Justice Rehnquist chose to wear his own standard — gold-striped on each sleeve — black robe for the Clinton impeachment trial. Chief Justice Roberts, a Rehnquist clerk, likewise stuck to his standard black robe.

    In any event, Judge McAfee's researches persuaded him that he could and ought to wear, as an homage to Roman Republic judges, a vivid, scarlet robe.

    He also believed that since most lawyers by those days (1980-1982ish) had Juris Doctor (J.D.) degrees, in lieu of the formerly common Bachelor of Laws (LL.B.) degrees, all of the lawyers in the courtroom should refer to, and address each other exclusively as, "Doctor." He would interrupt you, midsentence, and correct you if you said, of another lawyer, "Mr. Smith." You had to look at him and say, "DOCTOR Smith," and he would nod, and you'd continue.

    I want you to imagine the scene in his courtroom when the elderly judge, dressed in what appears to be a clown costume or perhaps Charlton Heston's red Moses robe from "The Ten Commandments," was directing proceedings with, say, a surgeon on the witness stand. The lawyers would inevitably screw up; the jurors inevitably laughed; Judge McAfee felt hurt and mocked, and just carried on. It was like an Abbott & Costello routine.

    Every jury trial needs a few giggles. But this gag got to be tedious. Notorious. Soon, intolerable.

    He was publicly reprimanded by the state judicial commission. He finished his term but did not seek re-election. It was unfortunate and sad. He presided over my trial with considerable tolerance. I liked him. But he was behaving in a way that brought discredit to the bench with which he'd been, for his term of office, entrusted.

    But see also, especially for the photo of the late Judge Charles Clark, who was chief of the Fifth when I clerked for Judge King, and look how young your Judge looked Ms. Isgur!: https://tinyurl.com/4dw6fxex

    This judge wasn't doing nothin' REMOTELY in that ball-park.

    [EDIT #2:] Then there was a Texas state district judge — from a rural county but before whom I'd tried a medical malpractice case to jury verdict, so knew passingly well — who resigned after allegations that during a felony child-endangerment case over which she was then presiding, she sent text messages to the DA with suggestions for what he ought to ask and argue.

    Among the most tightly held secrets of the Ninth Circuit is just how many judicial ethics complaints the late Judge Harry Pregerson spawned with his frequent, and frequently outrageous, public comments about matters then before him or likely to come before him. Complainants are typically told only that their complaints have been handled administratively by the office of the Chief Judge of that federal circuit, that the process has been concluded, and you're just going to have to trust us on the rest of this. Example: https://beldar.blogs.com/beldarblog/2003/09/im_almost_speec.html

    So yeah, I've seen me some judicial misbehavior that brought shame to the bench. Commenting on the court composition and atmosphere always raises questions of genuine confidentiality regarding the courts' private deliberations, but I'm not hearing any suggestion that she disclosed confidential court-related information or anything like that. I don't know if she's throwing balls or strikes, but I see no reason to accuse her of throwing a knockdown pitch. She doesn't deserve a warning. Play ball.

    [EDIT #3:] If I were trying to line up an expert witness to testify in a hearing about judicial improprieties, specifically on the topic of public and professional reactions to judicial incidents, I might hire a guy who ran a website called "BeneathTheirRobes.com." I think I could walk you through a Daubert hearing to get you qualified, Mr. Lat, if expert testimony were permitted to supplement the record.

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  8. Avatar photo
    Bill Dyer (aka Beldar)

    Any mandamus attempt regarding trial dates that is filed this far in advance will be treated as unripe and premature — there being manifest possibilities for lesser and later relief in the trial court, upon proper application and proof by the prosecution or defense lawyers seeking it, to adjust the trial date and all the other deadlines in the current scheduling order.

    Trump would be foolish to seek mandamus relief on any of these trial dates until they are much, much closer upon him, when he's made his best possible record that with no culpable foot-dragging on his own part, he's been unable to prepare adequately on something of material importance to his defense.

    Trump may do this anyway. He pays the "boy crying wolf" penalty with the appellate judges, and he's triple-napalmed his lawyers' credibility with the trial judge on every other discretionary call down the road.

    He might try to get this done FOR him by proxy, though, via a cooperative codefendant. (If he still has any.)

    Mandamus at this stage, in short, is boob bait for Bubbas, fodder for fundraising along with martyrdom limited-edition beer cozies with Trump's mugshot.

    Finally (on this topic, for me, for now, for what that's worth): In Ms. Isgur's absence, I can confirm from personal knowledge Mr. Lat's key and essential role in the popularization of the term "bench-slap," which I think is still hyphenated.

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    1. Todd.S.Boyce

      Granted, I know very little about mandamus but I know a good bit more than the average lawyer about criminal court. I'm perplexed at their invocation of a mandamus writ here. My understanding of mandamus is that it seeks a writ compelling a public official to TAKE some action--usually when none is being taken. For example, I believe one of the remedies sought against the Kentucky county clerk was that she MUST issue a marriage certificate to the husbands--because she was refusing.

      Here, the judge has taken an action--the trial date has been set. I understand the theory of appealing that (although I think it statistically 100% folly given the standard and lack of evidence to support an abuse of discretion challenge).....but I don't understand why the Davids believe mandamus is the vehicle.

      Can you help me understand this? Or perhaps the Davids can?

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      1. Avatar photo
        Bill Dyer (aka Beldar)

        I think it simply boils down to (1) no appeal yet as of right because no final judgment of conviction, (2) got to get to the appellate court before judgment somehow (or show that an extreme effort toward that goal has been made, lest the client explode), and (3) so what fancy writ name from equity has been employed before occasionally (but far more frequently abused unsuccessfully) to get an appellate court to get all up into the docketing business of a trial court?

        In civil practice, it's the catch-all writ to compel, as you say, the taking of an action, or perhaps the taking of an action in a different fashion. I've seen it most commonly in two settings — one forcing trial courts to dismiss cases with mandatory or exclusive jurisdiction or venue in another court (often with a prior pending case they're ignoring), and the other in challenges to trial court determinations of attorney-client privilege issues (e.g., on the basis of a crime/fraud exception) during pretrial discovery. I've seen attempts to challenge scheduling and docketing decisions via mandamus, but only by fools and from afar. Most of the trial judges I've met have a pretty keen sense for how much running room their appellate courts give them pre-judgment, and a canny judge builds a record of his or her wise exercise of discretion anyway for regular appellate purposes.

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  9. Avatar photo
    Bill Dyer (aka Beldar)

    Let's stipulate for purposes of argument that Meadows violated the Hatch Act. Let's further presume it's constitutional. Let's further presume, and this is the biggest leap by far, that all of the ambiguities and difficulties in its interpretation that have historically made it a running joke inside the Beltway have been overcome.

    So what?

    How do you then get to the conclusion that his guilt of that statutory prohibition somehow makes everything he was doing ultra vires, beyond his capacity to do, and null and void retroactively?

    He was a federal officer. He didn't stop being a federal officer even if he was one engaged in violating the Hatch Act.

    This is a red herring of the highest, dumbest order. Should've been covered by AO, yes, but in the category: "Not worth our time."

    [EDIT:] Perhaps that's too snarky. Let me just say this, of the Hatch Act and its relevance here:

    Unless and until Meadows stands convicted of its violation, arguments based on the Hatch Act are UNRIPE. Like every citizen, he enjoys a constitutional presumption of innocence unless and until convicted, under the Hatch Act no less than under GRICO. And therefore: Not worth our time (yet, if ever, which, don't hold your breath waiting for it).

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  10. Avatar photo
    Bill Dyer (aka Beldar)

    I don't want to repeat myself (not that that often stops me) on the removal point. I'll just note, Mr. Lat, that "totality of the circumstances" isn't the test.

    It's whether Meadows, unquestionably a federal officer, has articulated a "colorable" factual basis for his claim that the state prosecution arises from his office or activities he performed "under color" thereof. It's more like a Rule 12(b)(6) standard of review, with all the close calls going to the federal official under long recognized caselaw giving this incredibly important removal right its due place in the scheme of federalism.

    One can still believe, and one may be right, that he'll ultimately lose on his federal defenses, but those too are certainly at least colorable. We can't assess the totality of the circumstances — and this judge won't be using that standard! — on the basis of the evidence at this limited-purpose evidentiary hearing.

    Specifically: You're basically calling bullsh!t on Meadows' factual characterization of what he was doing. And if you're making credibility judgments, I think you've got by far the better of the argument. BUT: That's a jury's job, if it's to be done. And I think it will be a jury drawn from the Atlanta Division of the SDGA, not just Fulton County, but we probably won't know that until after an Eleventh Circuit appeal if there's a remand.

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