Trump heads to SCOTUS

Big argument at 10am this morning for the future of our country. Politico dives into the six actual legal questions that are presented here:

Just 109 words.

Whether Donald Trump can legally return to the White House will come down to how the Supreme Court interprets two rarely-invoked sentences written more than a century and a half ago as a battle-torn nation sought to recover from the Civil War.

Those two sentences make up Section 3 of the 14th Amendment, known colloquially as the insurrection clause. And on Thursday, the justices will publicly grapple with their meaning, as the court hears oral arguments on whether the provision disqualifies Trump from holding office again.

Colorado’s top court, in a bombshell decision in December, said Trump is indeed ineligible because of his efforts to subvert the 2020 election and his role in inciting the violent attack on the Capitol on Jan. 6, 2021. Scores of similar challenges are pending around the country.

Most legal experts expect the court — which is controlled by a six-justice conservative majority, including three of Trump’s own nominees — to overturn the Colorado decision and keep him on the ballot. But it’s far from clear what route the court might take to reach that result.

The justices have many options, ranging from a broad declaration that Trump is not an insurrectionist to a hyper-technical interpretation that a key phrase in the insurrection clause does not apply to Trump at all.

The argument begins at 10 a.m. EST, and live audio (but no video) will be available. Here are the key questions the justices will likely grapple with.

Does the insurrection clause apply to Trump?

Trump’s leading argument in the politically charged case is a semantic one: The president, he says, is not “an officer of the United States.” The reason that’s important is that the insurrection clause applies only to certain types of officeholders who took an oath to “support the Constitution” and then engaged in insurrection. In Trump’s case, the only way for the clause to apply is if he took such an oath as an “officer of the United States” when he was sworn in as president.

“I’ll be 70 years old in a few months and it just seemed like the perfect time for me to step aside and make room for someone younger to have an opportunity to serve on the Eleventh Circuit.”

 That's Judge Charles Wilson in his interview with the DBR, available here, about taking senior status (which this blog broke at this post).  Here's a snippet of the interesting article:

Following law school, Wilson served as a law clerk for Judge Joseph Hatchett, the first Black judge on the U.S. Court of Appeals for the Fifth and Eleventh circuits. Around that time, he also met his wife, with whom he would have two children. From there, he engaged in private practice in Tampa for five years and earned accolades such as the most productive young lawyer by the Hillsborough County Bar Association.

“I practiced whatever paid the rent,” Wilson recalled. “I hung out my shingle and it was probably the best thing I could do in my career. I tried civil and criminal cases to conclusion before juries in federal and state courts. I had a general practice. I provided representation to clients in just about any case. It was a great background for a judicial career.”

Wilson went on to devote himself to public service and was later appointed as a U.S. magistrate judge in the Middle District of Florida. Then, following his recruitment by Janet Reno, the U.S. attorney general, Wilson was appointed by President Bill Clinton to serve as the U.S. attorney for the Middle District of Florida.

In September 1999, Wilson was sworn in as an Eleventh Circuit judge following his appointment by Clinton to fill the vacancy created by Hatchett’s retirement.

Wilson said that one of the lessons he imparts to his law clerks is how to conduct themselves as young lawyers. Wilson said he applied three times to serve as a federal district court judge, landed an interview the third time, but was ultimately not selected.

“I just kept my head down and worked hard and earned a reputation in the community,” Wilson said. ”Several years later I was selected to serve as a judge on the U.S. Court of Appeals. And there I was reviewing decisions by the district judges who were appointed when I was not selected as a district judge.”

Both Parties in Ball & Chain Litigation Claim Victory

By John R. Byrne

The City of Miami has been dealing with quite a bit of litigation in recent years, including defending against claims that the City helped Commissioner Joe Carollo exact revenge against political opponents and critics. The latest lawsuit, filed by businessmen Bill Fuller and Martin Pinilla, named a bunch of City employees as defendants, including City Attorney Victoria Méndez and City Manager Arthur Noriega. 

Judge Moreno held a status conference on Friday, ultimately ordering the Plaintiffs to file an Amended Complaint. After the Court's order, both sides claimed victory to the press, with the City asserting that the Court suggested that "plaintiffs stick to the facts instead of making jury arguments in their complaint" and counsel for Fuller/Pinilla highlighting that Judge Moreno was "helpful and supportive" and had given him the opportunity to include more specific allegations against the City.

A lot more to come in this one. Herald covers it here.

DeSantis Beats Disney Retaliation Suit

By John R. Byrne

Governor DeSantis scored a victory yesterday in the Northern District of Florida. Judge Allen Winsor dismissed Disney's First Amendment retaliation lawsuit against the Governor and the directors of the newly constituted Central Florida Tourism Oversight Board.

Winsor held that Disney lacked standing to sue DeSantis, reasoning that Disney's asserted injury--lack of control over the special improvement district--is not "redressable" because the Court cannot give Disney that control back. Windsor wrote: "That injury would exist whether or not the Governor controlled the board, meaning an injunction precluding the Governor from influencing the board would not redress Disney’s asserted injury."

As to the Board, including its Vice Chair Charbel Barakat, Winsor held that Disney failed to allege a cognizable First Amendment retaliation claim. In short, where, as here, a statute was facially constitutional, it is irrelevant what motivated its passage. Because the Florida legislature has the power to determine the structure of Florida's special improvement districts, Winsor explained, it may exercise that power however it sees fit (retaliatory motives or not). The Court acknowledged exceptions for statutes involving race, religion, or those designed to regulate speech. But this wasn't such a statute.

The order, which Disney plans to appeal, is excerpted below.

De 114_Disney Dismissal Order by John Byrne on Scribd

Testimony Concludes in Racial Gerrymandering Case Brought against City of Miami

By John R. Byrne

Update on the racial gerrymandering case brought against the City of Miami. Trial testimony concluded yesterday. At issue are now "updated" voting maps, which have been challenged as unconstitutional. If the plaintiffs win, another map would be drawn.

Although a number of expert witnesses testified on statistical analyses and Miami's demographics, Judge Moore came back to statements made during public commission hearings. Judge Moore said that, in light of those statements, "it's really hard to get around the conclusion that race was" involved in the map drawing process.

Back in 2022, Commissioner Joe Carollo said the point of creating single-member districts was to ensure “there would be an African American sitting in this commission and there would be an Anglo” and “that there were three Hispanic districts.”

Commissioner Manolo Reyes also said “yes, we are gerrymandering to preserve those seats,” apparently referencing the five-person Commission. 

“The problem that I have been confronted with," Judge Moore said, is "not so much the statistical or circumstantial evidence that we’ve heard a lot about in the past two days. It was the direct evidence in those commission hearings that we’re well familiar with.”

The Herald covers it here.

No New Trial for Murdaugh

By John R. Byrne

Not SDFLA news or even news from the federal court world. But still worth covering. The judge in the Alex Murdaugh murder trial denied Murdaugh's request for a new trial. Murdaugh's team moved for a new trial, arguing that the Clerk of Court influenced the jury. The clerk, who wrote a book after the trial that was pulled because of plagiarism issues, apparently told jurors to watch Murdaugh closely when he testified.  

One juror testified that "She made it seem like he was already guilty." Asked whether this influenced her vote to find him guilty, she said "Yes ma'am."

A wild case gets wilder. I have to think an appellate court may see this issue differently. 

NPR covers it here.

Was Judge Kaplan too involved in the Trump case?

Most judges will tell you that they don't want to be the story and don't want to make news.  Especially federal judges.  Yet Judge Lewis Kaplan was front and center in the Trump case... 

Here's an ABA article detailing some of his quips.  Too much?

“Mr. Trump, I hope I don’t have to consider excluding you from the trial,” Kaplan said.

Trump protested by throwing up his hands and saying, “I would love it! I would love it.”

Kaplan responded by telling Trump: “You just can’t control yourself in these circumstances apparently.”

Jurors are considering damages in the lawsuit by Carroll, who obtained an earlier verdict and $5 million in damages against Trump for sexually abusing—but not raping—her in a Bergdorf Goodman dressing room in New York City in the 1990s and then denying the incident in October 2022.

The new trial claims that Carroll was defamed in denials by Trump before October 2022 and after the May 2023 verdict.

Kaplan also chastised lawyers in the case—on more than one occasion. CNN, Salon and the Washington Post have these examples:

  • Kaplan reined in Trump lawyers when several lawyers objected all at once. “Let’s just get this clear for both sides right now,” Kaplan said. “The first lawyer who says anything when a witness is on the stand says everything there is to be said for that side. This is not a tag-team lawyering.” (The Washington Post)

  • When Trump lawyer Alina Habba cross-examined Carroll using a 2022 deposition, Kaplan said he needed a copy and wanted to know what portion that Habba would be reading. “Now look, Ms. Habba,” Kaplan said. “We’re going to do it my way in this courtroom, and that’s all there is to it.” (CNN)

  • Kaplan called a recess after Habba read harassing social media posts about Carroll before entering them into evidence. “You should refresh your memory about how it is you get a document into evidence,” Kaplan said. (CNN)

  • When Habba asked Kaplan again to postpone the trial to allow Trump to attend his mother-in-law’s funeral, Kaplan said he would “hear no further argument on it. None. Do you understand that word? None. Please sit down.” (CNN)

  • Kaplan criticized a lawyer for Carroll for seeking exhibits in advance to consider potential redactions. “When the document is authenticated and offered, that’s when you say objection, and that’s when we deal with it,” Kaplan said. (CNN)

  • Habba asked Carroll whether she “makes a good amount of money” from her Substack posts. Kaplan stopped her, asking, “What’s ‘a good amount of money?’ Evidence 101.” (Politico reporter Erica Orden on X, formerly known as Twitter, via Salon)

Nice piece about AFPD Andrew Adler

 The University of Miami has a great article about Andy Adler here:

Assistant Federal Public Defender Andrew Adler sat third chair in a Supreme Court case back when he was an attorney at Boies, Schiller & Flexner LLP in a class action securities fraud case against Haliburton. After joining the appellate division of the Federal Public Defender's Office for the Southern District of Florida in 2015, he would second-chair two more Supreme Court cases before his first-chair hat trick in 2021, 2022, and 2023. 

Adler, a criminal law expert, is aware of only a couple of public defenders in history who have argued three U.S. Supreme Court cases over the course of long careers, but he is unaware of any who have done so in three calendar years. 

The 2007 Miami Law grad's first appearance was early in the pandemic and was conducted by telephone from his home. "Obviously the Court was doing the best it could under extraordinary circumstances, but the experience felt a bit artificial," he said. "Each Justice had a three-minute segment to question so if, hypothetically, Justice Breyer talked for 2-and-a-half minutes, I only had 30 seconds to respond. And of course, the lawn guys decided to come that morning!"