Thread by @Teri_Kanefield

The Jan. 6 select committee filed a response to Trump's executive privilege appeal.

int.nyt.com/data/documentt…

(Here's what Trump filed: s3.documentcloud.org/documents/2110…)

Shall we read the elect committee response together?

We can all this thread fun with appellate law 🤓

1/

Because this is an appeal, we have a standard of review: Meaning, how much deference does the appellate court give to the trial court?

#1 from Trump
#2 from the select committee

Basically the appellate court makes sure that the district court got the law right. . .

2/

A district court does two things: It decides what the facts are and applies the law.

This means that the appellate court gives deference to the district court's understanding of the facts, but not to its application of law.

(You all really wanted to know this, right?)

3/

What this means is that when you lose at the district court level, you have a heavier burden on appeal. You have to show that the lower court misapplied the law and abused its discretion in other matters.

Abuse of discretion is hard to show.

4/

We've never had a former president and a current president at odds over executive privilege.

But Trump's difficulty on appeal is that the law is clear: The Presidential Records Act (which Trump was cool with while he was POTUS) gives the final say to the incumbent president.

5/

Not at all. It just means that, in assessing the law to be applied, the appellate court doesn't give deference.

But the chances that the law here is wrong is like nil.

For everything else, the standard is "abuse of discretion" which means. . .

6/

https://twitter.com/sallyterra/status/1463200252354174977

... the judge was arbitrary and unreasonable departed from precedent and settled judicial custom.

Trust me: It's never fun to be the appellate lawyer when your client lost in court and the standard is abuse of discretion (I ought to know, I handled criminal appeals).

7/

Now you see why the select committee framed its response in terms of abuse of discretion ⤵️

This is the appeal of the lower court's decision to deny a preliminary injunction.

Getting a preliminary injunction is harder than winning on the merits. . .

8/

. . .because you have to show that you are likely to win on the merits, plus you have to show (by clear evidence) other things like the injunction is in the public interest and you will be irreparably harmed if it isn't granted.

The district court hasn't ruled on the merits.

9/

So this isn't an appeal on the merits. This is an appeal from a lower court's refusal to grant a preliminary injunction.

Here's the mind bending part . . .

10/

. . the appellate court doesn't decide whether to grant an injunction. The appellate court decides whether the lower court abused its discretion and misapplied the law when refusing to grant the injunction.

11/

In this @NBCNewsTHINK piece, I explained why Trump's task at the trial court was uphill.

In a nutshell: His case was pitifully weak. See⤵️

Now you see his task on appeal is even harder.

I don't expect him to break his losing streak with this one.
nbcnews.com/think/opinion/…

12/

"But what if the idea isn't to win but to delay."

He needs court orders preventing the release of the documents while the case proceeds. This is moving fast because courts are not going to give him a lengthy stay on appeal.

13/