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. . .
... 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.
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/
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🔹The committee will be finished before November. They're aiming for Spring.
🔹The DOJ will have all the material and it continues until 2024.
🔹If the Republicans take the House, the select committee "dead in the water" isn't the problem.
I am thankful for people like @staceyabrams who work to strengthen democracy.
What if—instead of making demands and attacking the people working to save democracy—the 1000s of rage merchants spent the next year registering and inspiring new voters?
Because actually nobody promised you anything like this.
Nobody promised that criminal investigations would be carried out with "transparency." Nobody promised Congress would work fast. And the "accountability" in the Constitution is elections so bad apples can be voted out.
In fact, nobody promised you a functioning democracy. If you want it, you have to work for it.
Democracy asks a lot of its citizens. It asks for civic involvement and it asks for an informed citizenry.
Autocracy is for the lazy. You can't do anything anyway, except complain.
You can possibly find occasions when shouting fire can get you into trouble: If you shout fire with the deliberate intention of causing harm, and you do cause harm, you may be liable for the harm.
But there is no general prohibition.
Banning speech is always problematic...
2/
I mean, look. Suppose the theater really is on fire, or you have reason to think it might be, and people are afraid to shout fire.
With outlets like Infowars, it's hard to prove proximate cause.
Conclusion: The legal system cannot cure all of our social and political problems.