A slow motion train wreck

by liberal japonicus

With Janie faithfully putting up open threads (greatly appreciated), I'll try to alternate with some more focussed posts and for this one, I'll let all of you give your predictions about the Supreme Court, using this vox article to prime the pump. Predictions and links appreciated!

Comments

[wj]

Almost nothing infuriates judges (including Supreme Court justices) than someone simply thumbing their nose at a court order. Which is exactly what the Alabama legislature has done. Multiple times now. Hence the unanimity of the Supreme Court backing up the Appeals Court.

Prediction: the special master appointed by the court has already come up with three proposed district maps. The court will pick one, and order it used in 2024.

But then, the Alabama state government will drag their feet and generally try to run out the clock. But the court, having seen this movie before, will step in and use non-state assets to print ballots and otherwise make the administration of the election happen. Charging Alabama for costs. (And, quite possibly, finding various Alabama state employees in contempt.)

The question becomes, how bad will the threats against poll workers get? As in, will we see Federal Marshals providing security at the polls? (Again, one hopes, at Alabama's expense.)

[JanieM]

Ohio has gerrymandering problems too. I haven't followed the sequence of events closely, but this is the last paragraph of the linked article:

Republican lawmakers had already planned to redraw those districts before the 2024 elections. Then, while the case was on appeal to the U.S. Supreme Court, voters elected a Republican majority to the state Supreme Court. Those judges in April overruled the previous decision and declared there was no constitutional prohibition on partisan gerrymandering.

The Rs are going to keep pushing. I don't know if they can be stopped.

(Thanks for the substantive topic, LJ. :-) )

[wj]

In another train wreck, the fraud case against Trump in New York just got a summary judgement on much of the charges. (Download the full 35 pages here https://s3.documentcloud.org/documents/23991865/trump-ny-fraud-ruling.pdf )

The judge was blistering, especially about the defense attorneys.** As for the defendants, he revoked the New York business licenses of TIFG, his sons, various of their employees, the Trump Organization, and various related organizations. And appointed someone to oversee liquidation of the businesses and division of their assets. Which, note, makes it difficult for Trump to shift those assets elsewhere to hide/protect the money .

Since the trial for damages remains, the distribution of the liquidated assets will have to wait on that.

** To the point that the bar association may feel compelled to take note. Oh yeah, and the judge found each of them in contempt for their behavior. That's career poison -- welcome to working for Trump.

[wj]

A different link, so you don't have to download the pdf
https://www.documentcloud.org/documents/23991872-ny-ruling-on-trump-business-fraud

[bobbyp]

The thought of dottering (too) old Brandon mobilizing the Alabama national guard to enforce a ruling by the Supreme Court's current over-the-top fascist majoritiy is rather amusing in a kind of sardonic way.

[Michael Cain]

But the court, having seen this movie before, will step in and use non-state assets to print ballots and otherwise make the administration of the election happen.

This strikes me as an open invitation to foot-dragging. IANAL (although I had to pretend to be when I worked for my state's legislature), but here's a partial list of ways I would challenge this.

The court lacks authority to conduct an election for anything beyond US House seats. They can't conduct the election for any state/local offices.

Employees of the court lack qualifications imposed by state and federal law for physical access to Alabama's state/county voting equipment, including voter registration records.

Colocation of the court's election for US House seats with the rest of the Alabama elections violates both state and federal law.

Bear in mind that the date by which all of this has to be settled is not Nov 2024, it's whenever the US House primaries are held in Alabama.

[wj]

So, Michael, what recourse do you see if Alabama simply continues to decline to comply? Lock up the entire state legislature (or perhaps just the Republican members) for contempt? Fine the Secretary of State, and the local election officials, for failure to comply? Bearing in mind that they can doubtless find deep pocket donors to cover those fines.

I note that the court appointed a special master to perform the state legislature's function of drawing district boundaries. How is that different from appointing special master(s) to administer the election? IANAL either. But I'm not seeing the distinction here.

P.S. I am also missing how this is an invitation to foot-dragging. Or are you just saying that the possible sanctions are too small to influence behavior?

[Girl from the North Country]

As for the defendants, he revoked the New York business licenses of TIFG, his sons, various of their employees, the Trump Organization, and various related organizations. And appointed someone to oversee liquidation of the businesses and division of their assets. Which, note, makes it difficult for Trump to shift those assets elsewhere to hide/protect the money .

Wow, I saw (briefly) the verdict, but had no idea how draconian the effects were likely to be. (It's been difficult for me, for various reasons, to do anything other than scan the news for the last few days/weeks.) Presumably they will appeal? Any ideas of how that will work?

[wj]

Presumably they will appeal? Any ideas of how that will work?

Badly. For him.

The judge laid out that the arguments that Trump's attorneys kept making were a) invalid (with detailed explanations why), b) had already been ruled invalid, and c) that the attorneys could not possibly have failed to understand that, and so were in contempt. For which they got fined. (A career suicide, essentially.)**

So, on appeal, either they will have to come up with new arguments -- which, if those existed, why not bring them up already -- or just rehash points that they have already lost. So appeals are really just a stalling tactic. I expect that they will exhaust the (limited) patience of the New York courts, fail, and then try to appeal to the US Supreme Court. Which, in turn, will promptly fail for utter lack of a Federal issue.

Meanwhile, Trump has no access to either the properties and other assets held by the Trump Organization and various related companies, or to the income from those assets. In short, his only money comes from:

• His Presidential pension,
• Whatever he can con out of his cult followers.

Which will severely limit his ability to pay more lawyers to fight his various other legal battles. Not to mention to maintain the lifestyle to which he has been accustomed.

In brief, while this legal battle can't land him in jail, it is at least as damaging to him as some home confinement sentence would be. (Not sure what "home" he will have left for confinement. Since all his residences have been held in the name of his various companies.)

** Note that the judges declaratory judgement was only about whether he had committed fraud. The amount of fines owed is still to be determined at trial.

[Girl from the North Country]

Ha, because of a discussion about proper usage in the other thread, I had misgivings about my use of "draconian". On looking it up, I see it can mean "excessively harsh or severe", or (as well as rigorous, which would have been OK) "unusually severe or cruel". For the avoidance of doubt, I do not consider these possible consequences for the Trumps or their organisation to be excessively harsh or severe, or cruel. They were clearly committing serious fraud, and should suffer the appropriate consequences.

[Michael Cain]

...but had no idea how draconian the effects were likely to be.

Michael Cohen -- remember Michael Cohen? -- is being quoted as saying he expects the settlement, after penalties and interest, to be about $600M. Also that the LLCs don't have $600M in liquid assets.

The conventional wisdom when Trump was elected in 2016 was that unless you took a decade to unwind the LLCs carefully, the whole thing was likely to come crashing down and end up worthless.

[wj]

The conventional wisdom when Trump was elected in 2016 was that unless you took a decade to unwind the LLCs carefully, the whole thing was likely to come crashing down and end up worthless.

I can't see the folks overseeing the liquidation spending years unwinding everything. Will that mean a bunch of assets getting sold at fire sale prices? Probably. But as long as the amounts combine to be higher than the fines adduced, that won't be an issue for the State of New York. Bad for the TIFG and his family, sure. Sympathy likely to be in short supply, outside the cult.

[bobbyp]

My suggestion to TFPOS is as follows. Should be doable except point #1, which might be a problem.

1. Eat some crow and settle quickly with the State of New York.

2. Borrow the fine from the Saudis. Sign the loan collateral over to them.

3. Carry on as before....after all, he hasn't got much time left and could care less about what takes place afterward.

[wj]

Should be doable except point #1, which might be a problem.

Not so sure about point #2 either. The Saudis might be figuring out that it's time to cut their losses. TIFG better hope they take that "cut" metaphorically.

[bobbyp]

wj,
pfft...a billion here, a billion there. If the Saudis can blow hundreds of millions on a golf tour, they can spend a billion to help their buddy TFPOS out. Pocket change.

[wj]

Sure, the Saudis could bail him out -- as you say, money isn't a problem. But do they have any more sense of obligation (or appreciation) to someone who is no longer useful? I'm guessing not. So why bother? Better to try bribing influencing someone in the current administration.

Putin might, even if TIFG has no chance of winning. Just to have him keep the cultists trying to cut off aid to Ukraine.

[Girl from the North Country]

wj: what does I stand for in your TIFG? I'm hoping maybe idiot, but would be interested to hear. Personally, I'm rather keen on bobbyp's TFPOS.

[wj]

TIFG: The Indicted Former Guy

[wj]

The reservation I have about TFPOS is that it can be read as suggesting that, while he formerly was a POS, he no longer is. I know that is not at all what bobbyp means, but....

[Girl from the North Country]

TIFG: The Indicted Former Guy

Aha. And soon, DV, to be TCFG.

[bobbyp]

wj,

"No longer useful" you say? We are talking about a very current POS who will most certainly be the GOP presidential nominee in 2024 and have a statistically significant chance of returning to the White House.

This is the kind of leverage that gamblers in cocoa futures can only dream of.

[McKinneyTexas]

Ok, is everyone aware that the trial judge granted a motion called a "motion for summary judgment"? Does anyone know what that means? It means there are no facts in dispute, no competing versions of the evidence and that, for these reasons, the case can be decided as a matter of law. To illustrate, imagine an intersectional collision at a light-controlled intersection. If 50 eyewitnesses say Trump had the red light and Trump says "I had the green light", the case is not proper for summary judgment. It is not proper for summary judgement because it is for the jury to decide the credibility of the witnesses.

It is remotely possible that Trump's legal team was too inept to "raise a fact issue" as we lawyers call it, but in such a universe, it is also remotely possible that the last election was, in fact, stolen. So, theoretically possible, but not as a practical matter.

Moreover, the tone and tenor of the court's decision is, to put it mildly, not very judicial. It may be a case of clever forum shopping by the NY AG and a very friendly judge disregarding the normal rules of when a case goes to the jury and when it does not, or it may be something else. The likelihood--from the outside looking in--of the order purporting to shut down all of DT's business activities on evidence that would necessarily have to be completely uncontradicted is pretty remote.

This doesn't mean the state doesn't have a strong case. I'm just pointing out that the ruling has a lot of the indicia of something that won't hold up on appeal.

Also, I've seen a crap ton of bad lawyer behavior over the years. It is extremely rare for a judge to tee off on lawyers like we see in this case. In those rare case where we do see it, it is usually the judge, not the lawyers, who is out of line.

[Michael Cain]

...a very friendly judge disregarding the normal rules of when a case goes to the jury and when it does not...

IIRC, Trump (and his lawyers) opted for no jury in this case. My understanding -- quite possible wrong -- is that the judge said Trump's attorneys didn't challenge the facts (ie, the numbers) so that's settled. Their arguments on the law are all things they brought up earlier in the proceedings and were told they were wrong, and they're still wrong, so that's settled. And by the way, here's a sanction for wasting my time by repeating arguments you already knew were wrong.

Going without a jury strikes me as a strategic blunder, if you plan on making the argument that no matter what the law may say, it's routinely not enforced and none of the parties involved in the deals has complained.

[wj]

Ok, is everyone aware that the trial judge granted a motion called a "motion for summary judgment"? Does anyone know what that means? It means there are no facts in dispute, no competing versions of the evidence and that, for these reasons, the case can be decided as a matter of law. To illustrate, imagine an intersectional collision at a light-controlled intersection. If 50 eyewitnesses say Trump had the red light and Trump says "I had the green light", the case is not proper for summary judgment.

My impression (I admit that I haven't been tracking the case obsessively) has been that, for whatever reason, Trump's lawyers did not formally dispute the facts. Hence the summary judgement.

Their approach seemed to be more of the "everybody does it" or "My client believed/thought/hoped that someone in the world would pay multiple times the market value" argument. Trump may have been saying, outside the courtroom, that he thought the light was green. But in court, his lawyers weren't; they were going with "everybody runs red lights".

I've seen a crap ton of bad lawyer behavior over the years. It is extremely rare for a judge to tee off on lawyers like we see in this case. In those rare case where we do see it, it is usually the judge, not the lawyers, who is out of line.

Well, Trump and his legal team sometimes seem pretty sui generis, do they not?

How often has that bad behavior extended to repeatedly raising issues which have already been ruled on in the same case? That, more than anything else (including misrepresenting precedents) seems to be what irritated the judge.

[wj]

I see Michael types faster than I do. :-)

[GftNC]

Speaking for myself (and I'd be surprised if I were alone here) I did know that the judge in the Trump fraud case had ruled that the facts were not in dispute.

And it is true, according to another piece in the NYT, that this judge is frequently a little eccentric in various ways, so I guess it is possible that Trump could succeed in an appeal.

In the various NYT and WaPo articles about the case, I was struck by the following in the NYT a couple of days ago:

The counterargument is that Mr. Trump really did make material misstatements. The most blatant example is that, according to the complaint by Ms. James, he claimed his triplex apartment in Trump Tower in Manhattan was 30,000 square feet when it’s actually 11,000 square feet.

“A discrepancy of this order of magnitude, by a real estate developer sizing up his own living space of decades, can only be considered fraud,” Judge Arthur Engoron wrote in a decision Tuesday that stripped the former president of control of some of his major properties.

Another vulnerability for Mr. Trump is where he used methods that produced high valuations for properties when he wanted to borrow against them and methods that produced low valuations for properties when he wanted to reduce their tax assessments. You can argue that you were over-optimistic or that you were over-pessimistic, but you can’t argue that you were both at the same time.

[Girl from the North Country]

Well, Trump and his legal team sometimes seem pretty sui generis, do they not?

wj, if this was intended to be subtle shade, it is a masterpiece. LOL.

[wj]

Moi?

[CharlesWT]

For anyone interested here's a digital .pdf of the summary judgement:

People of the State of New York v. Trump et al

At the risk of annoying some people... :)

Here is a summary of the key points from the summary judgment decision in People of the State of New York v. Trump et al:

• The court denied the defendants' motion for summary judgment in its entirety.

• The court granted in part the plaintiff's (NY Attorney General's office) motion for partial summary judgment on its first cause of action under New York Executive Law 63(12), finding the defendants liable for repeatedly using false and misleading Statements of Financial Condition (SFCs) in business transactions.

• The court found the defendants submitted fraudulent valuations for several Trump Organization properties, including Trump Tower, Seven Springs Estate, Trump Park Avenue, 40 Wall Street, Mar-a-Lago, Aberdeen, and U.S. golf clubs. The evidence showed valuations were inflated by 17-38% over market value, representing overstatements of $800 million to $2 billion.

• The court also found defendants improperly classified non-liquid assets as cash, overvalued interests in Vornado partnerships, included intra-company deals as external licensing deals, and failed to account for liabilities.

• The court found the individual defendants Donald Trump, Donald Trump Jr., Eric Trump, Allen Weisselberg, and Jeffrey McConney liable, as well as the corporate entities DJT Revocable Trust, Trump Organization Inc., and several LLCs.

• The court canceled the business certificates of the liable entity defendants under New York law. It ordered the appointment of an independent monitor and independent receiver to oversee the dissolution of the canceled LLCs.

• Issues that remain for trial include the amount of disgorgement, liability under the other causes of action, and additional requests for relief.

• The court imposed sanctions of $7,500 on five of the defendants' attorneys for frivolous motion practice reiterating arguments the court had already rejected.

In summary, the court found the defendants engaged in repeated fraud through submitting false valuations and financial information, granted partial summary judgment of liability, imposed sanctions on defense counsel, canceled business certificates, and ordered the appointment of independent oversight. Further proceedings will determine damages and additional liability and relief.

—Anthropic Claude-2-100k

[hairshirthedonist]

I might not be no lawyer, but it sure don't look good from where I'm sittin', by golly! Now let me get back to bein' real dumb.

[ral]

GftNC: You can argue that you were over-optimistic or that you were over-pessimistic, but you can’t argue that you were both at the same time.

It is the Schrödinger equation for valuing assets. Even by New York real estate standards this is a bit much.

McKinney, let me ask in all seriousness, have you encountered a litigant who so vigorously denigrates the court in public statements? What would you expect a court's response to be?

[CharlesWT]

There are a few potential arguments the defendants could raise on appeal, though their prospects of success face challenges:

• The defendants may argue the court erred in granting partial summary judgment to the plaintiff on the Executive Law 63(12) cause of action. However, the evidence of inflated valuations seems quite strong, and the appeals court may be reluctant to disturb the factual findings.

• The defendants could challenge the court's imposition of sanctions on their attorneys. They may claim the arguments were not frivolous or were made in good faith. However, the sanctions were relatively minor and the appeals court may defer to the trial judge's discretion.

• The defendants may try to argue the court lacked jurisdiction or the Attorney General lacked standing or capacity to bring the action. But the appeals court already rejected these defenses earlier in the case.

• The defendants could appeal the cancellation of the business certificates as premature or unwarranted by the evidence. They may claim less drastic measures like an injunction would suffice. This may have a chance of success in limiting the remedies.

• The defendants may appeal evidentiary rulings or other procedural grounds. However, procedural issues rarely lead to a full reversal of liability.

Overall, the defendants face an uphill battle given the strong evidence documented in the court's decision and the high threshold for overturning a grant of partial summary judgment. However, the appeals court could potentially limit the scope of remedies if the defendants raise persuasive arguments on that front. But a wholesale reversal seems unlikely based on the trial court record.

—Anthropic Claude-2-100k

[Tony P.]

McTX: Ok, is everyone aware that the trial judge granted a motion called a "motion for summary judgment"? Does anyone know what that means?

I bet the judge does. Still, I suppose it is both the duty and the instinct of any congenital lawyer to say "You may be doing the right thing, judge, but you're doing it wrong."

--TP

[wj]

have you encountered a litigant who so vigorously denigrates the court in public statements? What would you expect a court's response to be?

Can a judge only find someone in contempt for something that happens in the courtroom? Because Trump's contempt is manifest.

[Michael Cain]

Can a judge only find someone in contempt for something that happens in the courtroom?

Gag orders generally apply to activity outside the courtroom, no? I'm only assuming that violating a gag order is contempt, it might formally be something else.

[JanieM]

You can argue that you were over-optimistic or that you were over-pessimistic, but you can’t argue that you were both at the same time.

They let you do it if you're a star.

[McKinneyTexas]

McKinney, let me ask in all seriousness, have you encountered a litigant who so vigorously denigrates the court in public statements? What would you expect a court's response to be?

Two good questions. My limited exposure to Trump's Truth postings proves his full blown narcissism is in a new, uncharted universe of disorder. He is beyond unhinged and, so to the first question: no, I've never seen this level of "trash talk" from a litigant.

As for what a judge does, or is supposed to do, is apply the law to the facts and to generally ignore activity outside the courtroom. Inside the courtroom is different. IMO, the judge appears to have over-reached. Being psychotic does not waive due process or equality under the law. Only a delusional partisan can justify Trump's behavior, but there isn't a second set of rules for the Trump's of this world.

Gag orders generally apply to activity outside the courtroom, no? I'm only assuming that violating a gag order is contempt, it might formally be something else.

Yes, but I'd be surprised to see a gag order limiting Trump's comments on the judge or the proceedings. I'm not a gag order specialist, but the order is in derogation of the 1st Amendment, so there are limits to what can be gagged.

[Girl from the North Country]

You can argue that you were over-optimistic or that you were over-pessimistic, but you can’t argue that you were both at the same time.

They let you do it if you're a star.

You know, I was about to LOL, but I realised with a terrible shiver that this is actually true, and that he gets away with a lot of things that nobody else would, and may continue to do so, for the reasons that we all understand. For some definitions of the word understand.

[hairshirthedonist]

You seem to imply that there’s a double standard working in Rump’s favor rather than to his detriment, GftNC. Haven’t you heard that he’s a downtrodden victim of a corrupt system?

[wj]

he’s a downtrodden victim of a corrupt system

Clearly an aspirational statement. At least, the "downtrodden" part.