I keep thinking about @jodikantor & @adamliptak's piece about SCOTUS--and specifically about the agreement to grant cert in Dobbs but conceal that decision from the public (and on the Court's docket) for months. 1/
As a result of that agreement, a case that 5 members of the court agreed to hear instead looked as if it was being held over for further discussion again and again and again and again. 2/
You might be thinking, "So what? Why is that such a big deal?" It matters to me because if the reporting is accurate, the Supreme Court docket was not, and purposefully so. 3/
If the justices can't be counted on to be transparent about a relatively mundane aspect of their decisionmaking process (other than their actual opinions) that we are entitled to see, what else are they concealing for the sake of their own reputations & "legitimacy"? 4/
It's one more disquieting signal that the Court is not healthy the night before Trump owes those same nine people a brief in a case pivotal to our democracy and the rule of law. FIN.
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NEW: The strongest argument in Trump’s brief is his assertion that as the prevailing party in the district court, Jack Smith & co. have no right to ask for direct review by SCOTUS. But that’s saying something. 1/
Their argument is that Smith is not injured by the stay of the trial and all pretrial proceedings, but even if he was, the district court’s opinion is not what caused the stay. That’s a stretch. But for that opinion, Trump would have nothing to appeal, and Chutkan would not have granted any stay. 2/
So much of the rest is problematic, especially Trump’s assertion that no president has been criminally prosecuted before “despite ample motive and opportunity to do so” implies that the power does not exist. 3/
So here's the holiday schedule in Trump legal: Trump's brief opposing SCOTUS's direct review on the immunity issues is due 12/20 by 4 p.m.; in the meantime, his brief to the D.C. Circuit on the same questions is due 12/23 with further briefs due from Smith on 12/29 and Trump again on 1/2. 1/
Oral argument now follows in the D.C. Circuit on 1/9--but none of the D.C. Circuit schedule holds if SCOTUS takes the case. 2/
And sandwiched on either side of the D.C. Circuit argument? Both sides' post-trial briefs are due in the NY A.G.'s civil fraud case, in which Trump's written directed verdict motion was just denied, on 1/5. 3/
NEW: D.C. Circuit panel of one GWB nominee & two Biden nominees (one championed by Lindsey Graham!) agrees to expedite Trump's immunity appeal. Trump's initial brief is due 12/23, just 3 days after he owes SCOTUS his opposition to Smith's petition for cert before judgment. 1/
This means that if SCOTUS wants to, it has three days to save their lower court colleagues' holidays by granting or denying the cert petition on or before 12/23. 2/
Note: There are no SCOTUS conferences (e.g., when the justices meet privately to weigh which cases to take) scheduled for late December. From the SCOTUS website: 3/
ABORTION: You might be reading that the Supreme Court has agreed to take up a case about mifepristone, one of the two drugs commonly used for medication abortion. But what’s not at issue? The FDA’s original approval of mifepristone 23 years ago. 1/
After a federal appeals court overruled parts, but not all, of Judge Matthew Kaczmaryk’s decision that would make mifepristone unlawful, three parties sought review from SCOTUS: a coalition of anti-abortion doctors; the FDA; and Danco, the drug’s manufacturer. 2/
Today, however, SCOTUS denied the doctors’ petition, which sought review of the FDA’s foundational approval of the drug in 2000. See the questions presented in their cert petition here:
Bartov says DB’s analysis, which describes Trump’s “exceptionally strong financial profile,” notwithstanding their lowering Trump’s net worth by $1.8 billion, and subsequent decision to lend to him shows there was no fraud.
Bartov also notes that DB was considering a $125 million loan; therefore, they didn’t need to consider much beyond the four identified “trophy properties” because their exposure was relatively limited.
Wallace objects; Engoron resists, “He’s basically saying the collateral was worth a lot more than the risk.” Still, Engoron reminds him, “This is not a classroom, this is not a lecture; sometimes your answers are longer than they need to be.”
NEW: We’re back for the afternoon session of the Trump civil fraud trial, where NYU accounting professor Eli Bartov is testifying about the use of certain inputs — including estimated selling prices someday in the future — in preparing statements of financial condition. 1/
Bartov is saying the preparer can choose between discounted amounts of cash receipts and payments relating to the property or the “net realizable value of the property, based on planned courses of action.”
(This matters because Trump’s statements routinely failed to discount future estimated sales of homes, for example, on property they owned but that were years away from being constructed, if at all.)