The Devil Is In The Details

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Rachel Maddow opened her show last night with a segment that dealt with the court hearing involving Deutsche Bank desperately trying not to have to disclose publicly whether or not Trump’s tax returns, whether personal or business, were some of the documents they would be forced to turn over if the House subpoenas are upheld in court. But as potentially salivating as that prospect was, Rachel said something that made me drool even more.

The case that she is referencing is currently in the U.S. Circuit Court of Appeals, the lower court having already ruled in favor of the House. Appellate courts run a wee differently than a regular district court. In an appellate proceeding, there is not a single judge, there is actually a three judge panel that hears the case, and then renders a majority decision, as in the Supreme Court. But the appellate circuit actually consists of nine judges, three of whom are chosen by process to hear an individual case. And that’s important.

Because, normally when the appellate court issues a ruling, the loser actually has two choices. They can choose either to appeal the ruling to the U.S. Supreme Court, or they can appeal to have the ruling reviewed by the entire nine judge panel, and a new, superseding ruling issued. If they lose that ruling too, they are of course free to appeal to the SCOTUS.

In her segment last night, when describing the proceeding as she played audio from the hearing, at one point Rachel described the defense attorney from Deutsche Bank as arguing in front of an entire panel of appellate judges. But as far as I can determine, this is the first hearing in front of the appeals court on this case.

This is critical. because if it’s true, then at least this appellate court is taking active steps to stop the defense from using obstructionist tactics in their court. If a three judge panel heard this appeal, and ruled in favor of the House, the defense would have the option of asking for a full appellate panel ruing on the case. This could literally take months before a final ruling is issued, and the loser appealing to the Supreme Court. If this appellate court decided to immediately hear the case in front of the entire nine judge panel, then it is clear that they prefer a speedy resolution to this matter, when the calendar is already running on impeachment.

Of course, each court is free to choose its own method of hearing their cases. But several lower district courts have already expedited their hearings and rulings on House suits, and regardless of the size of the panel, this appearance appears to have been accelerated as well. It would appear as if maybe Trump’s ceaseless criticism of the court system as an excuse for his piss poor ability to craft executive orders may finally be coming home to roost.

What the Supreme Court would rule on any of these issues is of course, still an open question. but I have a strong feeling that Chief Justice John Roberts will use every trick in his toolbox to ensure that the court declines to hear the case if the House wins, and allows the lower court ruling to stand. Not necessarily because of “Brewski” Brett Kavanaugh, but more because I don’t think that Roberts himself relishes the idea of having to cast yet another “swing” vote with the liberals on the court to ensure that there actually is a rule of law in this country. Don’t touch that dial.

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Markm Mitchell
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Markm Mitchell

Tick – tock….