Getting Things Back In Order

And: Thoughts on ProPublica's Clarence Thomas piece.

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David and Sarah are back from a hearty break and catch up on cases from last year and various legal topics, including judicial salaries and the death of Justice Sandra Day O’Connor. Stay tuned for:

—David and Sarah’s low confidence in the outcome of the Jarkesy case;
—No love lost for the Sacklers;
—A good attempt at avoiding the income tax;
—Maine skipping due process; and
—A lawsuit that could eviscerate the realtor business.

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Comments (119)
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  1. Avatar photo
    Patterico

    Very strange to hear the hosts claim that the Maine Secretary of State gave no “due process” whatsoever to Trump.

    Did the Maine SOS not give Trump notice? Did she not give Trump an opportunity to respond? Did Trump not actually respond?

    For the curious listener who wants to know the answers, you can read the decision here:

    https://www.maine.gov/sos/news/2023/Decision%20in%20Challenge%20to%20Trump%20Presidential%20Primary%20Petitions.pdf

    The answer to all three questions is “yes.” There was notice. There was an exchange of witness lists and exhibits. There was briefing. There was a hearing. There was testimony. Trump filed objections.

    Not that you’d know that listening to this podcast! Sarah and David both describe the process as “none” and Sarah falsely implies there was no hearing and no witnesses. Again, read the decision. There were both.

    If you want to accurately describe the process provided in Maine and then argue that it was insufficient, I have no problem with that. But to claim that no process was given at all? That’s just not accurate, and it does not live up to the high standard I am used to from this podcast.

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  2. Aaron H Frank

    David talks of Trump committing the crime of insurrection.

    But Trump has not even been charged. The former president is being prosecuted by a federal prosecutor who has, so far, decided not pursue insurrection charges. So can state officials determine Trump is guilty of the crime.

    Now what if his supporters decide to mount a write-in campaign? Can the various secretaries of state decide to discount those votes.

    Here in Connecticut a candidate must register with our Sec of State for write-in votes to count. Can our secretary not process the application?

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  3. Annlucas1

    David & Sarah, I read the comments and I didn't see this mentioned. IANAL, but I think the outcome you are both predicting is simply a return to the status quo prior to 1990-ish. I was a realtor about 30 years ago, and when I started, the industry was just moving to the "Buyer's Agent" model. Prior to that time, every agent had to disclose that they "worked for the seller" because the seller technically paid the commission. The change was welcomed as a way to make sure the buyer was honestly represented, because without a buyer's agent agreement, if an agent was helping the buyer, he/she had to notify the client that they should not say anything they don't want to seller to hear, and if they did, the agent was legally required to disclose it to the seller's agent. Importantly, the commission rate or split did not change when this happened. Realtors just agreed to split commission with the other side, even though it comes out of the seller's proceeds.

    Seems like the expected outcome would simply revert to the "old" way, and would likely not eviscerate the profession as predicted. Ultimately a loss for buyers, of course, because they will not have representation in the negotiations.

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  4. Ericweisberg

    @Sarah. Wow, did you just immediately change the subject when David brought up Clarence Thomas? Sensitive topic?

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  5. Avatar photo
    David.Link

    I'm totally with David on Section 3 needing a fairly low standard of proof. The way I see it, the language of section 3 specifies a disqualification from office, just like Article I does for members of Congress and Article II does for the Executive. I am no expert on Constitutional law, but none of the arguments I've heard or read suggests that disqualification for not being the right age, or a citizen requires the due process, say, that being imprisoned or liable for civil damages would. As David said, process that leads to punishment is constitutionally important, but different standards apply to different punishments; the more serious the punishment (imprisonment or death) the greater the process; the lesser the punishment, the lower the standard.

    While Donald Trump may view being disqualified from running for President is a punishment, it's much more like an administrative licensing hearing -- as it would be in cases where there is a question about a candidate's age or residence. As long as there is some reasonable process to determine the relevant facts, the candidate is due only some reasonable process, and there is no right to run for office that would demand much more than that.

    I'm willing to concede that a determination of whether a candidate had engaged in insurrection, etc. is more complicated than verifying their age. But it is not a criminal conviction or a question of liability -- it's just a verification of a factual matter; maybe a more serious one, but its only consequence is disqualification from the ballot, not the loss of any liberty at all, or recompense to a wronged victim. I'm very comfortable with Colorado's process, and in Maine, I'm not sure there's much of a problem having the Secretary of State being the responsible official for making the determination (since the position is accountable to the people), though I'm open on that question.

    But given that there is no right to run for President, I think that's all that's needed. As for a unified standard for the nation, I'm not sure that's how other disqualifications work. As with so many other things related to Trump, it doesn't seem anyone has ever so grossly transcended our nation's norms so that we've needed to find out.

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  6. Aaron H Frank

    Even if Trump is kept off the ballot by every blue state, there could still be a large scale write-in campaign.

    Could those states then stop write-in votes from being counted?

    In CT, where I live, write-in votes are not counted unless the person written in is registered as a candidate for office. Could the Secretary of State deny Trump's registration?

    Thanks

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  7. Aaron H Frank

    David and Sarah argue for higher pay for SCOTUS justices stating that their clerks graduate and receive huge bonuses and higher pay than the people they were working for. But given how David has described his time as an associate for Big Law, these new private sector lawyers are working quite a bit harder for that comp. And they have nothing even close to guaranteed lifetime tenure.

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  8. Elijah McKay

    I have to say, while usually I understand the point of contention between Sarah and David, when it comes to the 14th Amendment Section 3, I cannot understand how you could have any conclusion but Sarah’s. The only enforcement mechanism specified in the Amendment is federal statute, so it seems pretty clear that the federal insurrection statute, not some guesswork about what was in people’s heads when the Amendment was being voted on, should be the primary basis for determining who is disqualified.

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  9. Pamela K.

    David's NYT piece today spurred me to hop into the comments. David, I am so sorry to hear about your wife's diagnosis and wish your family all the best. We're dealing with cancer in my family as well. You are so right that one's reality can change very quickly after a diagnosis.

    One note on substance while I'm here. For what it's worth, I want to give Sarah some backup on her reading of the 14th Amendment, Section 3. She's spot-on that it is not at all obvious what the original drafters intended in terms of whether a criminal conviction might be needed in order to find an insurrectionist to be disqualified. In reading the Colorado Supreme Court's opinion, I found it unpersuasive at nearly every substantive turn. I'd love to see DJT disqualified, but this is not the way to do it.

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  10. Shane Davitt

    It seems that if we are trying to compensate justices according to what they could make elsewhere in law, we would pay them more than if our goal was simply to give them enough to live comfortably, not the other way around. I personally think the goal primarily should be to avoid corruption, not to chase big law salaries. I understand the need to get good people, so we will need to pay them significantly more than the average person, and even more than the average young lawyer. But doesn’t the President only (“only”) make $400,000 a year? Maybe we give some more since Justices are expected to serve the rest of their careers in office. But I don’t think we should underestimate the draw of the job itself. You get shape lives in ways few people in the world can do. You get to make law. Not to mention a pretty good book deal if you want.

    Also, how much do we really want our Justices traveling around and lecturing? It’s nice but it’s not their job. And, personally, I wouldn’t have a problem with an ethics code that lets universities and organizations pay travel expenses for Justices. Seems odd that the Justices’ summer break is turning from a perk to an obligation.

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    1. Bob Douglas

      Agreed. Let the justices get pay and travel for speaking. As long as it was public, no need for tight regulations.

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