A Mystery to Me

 

Why has Congress not given slain Capitol Police Officer Brian Sicknik a state funeral, culminating in interment at Arlington National Cemetery?  An enormous cortege, consisting of unit after unit and band after funeral march-playing band, winding slowly past the White House – what a great way to give Donald Trump the parade he always craved and make an unanswerable political statement at the same time!

Why are Democrats insisting on another impeachment of Trump “to demonstrate that a President can’t get away with inciting insurrection in an attempt to keep Congress from performing one of its Constitutional duties” when they know it would likely only result in another Senate acquittal –thus ending up by establishing that a President can do exactly that and get away with it?

Why do they persist in this effort even though the President-elect they have installed at such great effort and expense has signaled it’s not his preference?  Why so ready to refuse to be led, now that they have a clear leader?

I’m afraid the answer is that the Democratic Party is lacking in political imagination, savoir-faire and, worst, instinct.  Their sense of political theater is desperately deficient.  Maybe it has been since Adlai Stevenson.  How can this be, with the vast preponderance of creative artists on their side?

Don’t know. It’s a mystery to me.

Another Great Work of the Indefatigable BKS

 

Here’s a link to a compilation of everything filed in my still-pending case challenging Gov. Ducey’s eviction ban, Gregory Real Estate and Management, LLC v. Keegan.  The first appellate decision should be handed down in a month or two.  Important questions of Arizona constitutional law are involved, even though as a practical matter these gubernatorial orders have been superseded by the CDC’s federal moratorium (itself due to expire in another three weeks) –

Gregory R.E. and Management, LLC v Keegan

Trump's Attempted Coup

 

On November 22, 2020, I wrote in a blog post here:

  There is the possibility that Trump is not just deeply neurotic but either has long been or has recently become psychotic.  In that event, his egomaniacal delusion could well lead him to summon violent resistance to his removal.  While such resistance would have very little chance of being successful, however unsuccessful it might be it would have enormously detrimental effects on America’s economy, institutions and prestige.  But I think it’s more likely that Trump will be dissuaded from taking such a risk.

About the same time I wrote elsewhere (in a comment on a Youtube post):

He [Trump] is desperate to avoid prosecution and incarceration, the former inevitable and the latter highly likely if and when he ceases to be President.  Therefore, he will do whatever he dares to do in order to retain the Presidency.  Fortunately he’s not very daring, but unfortunately he doesn’t understand the system well enough to know what’s possible and what’s not possible.

The first of these quoted comments of mine was partly wrong.  Trump is psychotic but was not dissuaded from summoning violent resistance to his removal.  The second was spot on.  Trump was safe in the White House during the fighting on Capitol Hill, and even though his minions succeeded in stalling the counting of electoral votes for a time there was never a chance the outcome would be a second term for Trump.  In November I failed to focus on the exact form of violent resistance Trump would summon.  I underestimated Trump’s cowardice, his lack of understanding of the U.S. military and the depth of his followers’ delusion, ignorance and depravity.

Whatever secret overtures were made to the Pentagon on his behalf, the senior officers made their unwillingness to cooperate clear in a series of statements culminating in December, followed at the beginning of January by all the living former Secretaries of Defense.  We may not know for years exactly what sort of back-channel suggestions prompted the generals’ and Secretaries’ statements, but Trump had another arrow in his quiver.

Trump did summon violent resistance.  He thought his ranting, bloodthirsty fans could stop Congress from completing the final formal step of the 2020 Presidential election – and they did, for about four hours.  His agent and unsuccessful lawyer, having failed to win any judicial trial for his master, told the large and unruly crowd (expressly summoned to DC by Trump for a day that he promised would “be wild”) that their cause now depended on “trial by combat.”  Then Trump instructed them to march on the Capitol, where he knew Congress was sitting to count the electoral votes and certify the winner.  He repeated his claim that the election had been “rigged,” urged his supporters to be strong, told them “we’ll never take our country back by being weak,” and promised to march with them.

There is no way the tumult Trump set in motion could have advanced his cause unless the mob succeeded in keeping Congress from fulfilling its Constitutional responsibility.  The mob did exactly that for several hours and with a little more coherent planning and leadership it could well have slaughtered Congressional leaders and dispersed the Congress itself.  Perhaps Trump’s plan was to invoke the Insurrection Act at that point, ostensibly to enable Congress to reconvene but actually (with the connivance of his recent political appointees to the DOD, who may have been responsible for keeping the National Guard out of DC during the coup attempt) to prevent it.  That none of this would have extended his term of office is far too subtle a point for Trump to worry about in his desperation.  If he could prevent the completion of the final step of the election then something else might turn up.  Such is the reasoning of desperation.  And that Congress would evade his minions and reconvene, in Silver Spring or Philadelphia, was beyond his political imagination.

Nothing exemplifies Trump’s character better than his egging the mob on and promising to march along with them, then scuttling right back to 1600 Pennsylvania Ave. to watch events unfold on TV.  He summoned and stirred up his forces and sent them to fight for him while staying in a safe place and maintaining “deniability” – albeit of a scarcely plausible kind.  “Why, goodness me, I never dreamed those folks would do anything the least bit violent,” he will be heard to whine for all the years he lives.  Alternately he will insist that they were “good people” and legitimately aggrieved, but if any of the rebels* is counting on receiving a pardon he will be sadly disappointed.

At his rallies Trump used to urge his followers to rough dissidents up and promise to pay for their defense if they were prosecuted as a result.  But when one was arrested and charged with assault, he got not a penny for his legal expenses nor even a letter of sympathy from Trump.  Trump will be saving the pardons for himself, his family and those who can do him a good turn – like tax-dodging billionaires, drug lords and other potentates of foreign countries.  In his mind, those who fought Congress for him but lost will be nothing but fools, losers and, worse, an embarrassment to him.

Trump also lacks sufficient political understanding to know that rebellion must either succeed and crown the rebels with prosperity or fail and bring them down in ruin.  He who dares to strike the king gambles all and must dare greatly.  In his cheating huckster fashion he simply reckons that he can deny involvement in the failed rebellion.  His last Presidential act will be to pardon himself (perhaps just slipping the sealed document into his coat pocket against a rainy day), but this will not prevent the searching investigation in which all the resources of the offended government will be deployed. [Post-scriptum: When I wrote this, Republican Congressional leaders were still denouncing the insurrection and blaming Trump for it.  As a Goldwater Republican I could not even imagine that soon nearly all of them would fall in to defend Trump in every dishonest way they could.]

*  And murderers.  From the 1890s encyclopedia my grandmother gave me, under Riot: “There must be at least three offending actors.  The wrongdoers must be engaged in some private purpose and not in any attempt to overthrow or subvert the government, which is treason. … No distinction is made between the relative degrees of violence on the part of the rioters [still less of insurrectionists]; all the participants are responsible for all that takes place.”

Mealy-Mouth Brnovich Saved by the Bell

 

I was going to file this Monday.  AG Brnovich doesn't know it, but he was saved by the bell.

Media reports list Arizona as one of the states entering the suit on the side of Texas, but that's not accurate. Arizona, through Brnovich, moved tor leave to file an amicus brief, but made it clear its brief would essentially say nothing. I don't know how many more of the "18 other states" made or proposed similar filings.

Of the two main reasons for the US Supreme Court to refuse to touch the case, Plaintiff Texas' lack of standing and non-justiciability under the political question doctrine, I believe the latter would have been the better choice.

No. 22 O 155

In The

Supreme Court of the United States

_________________

STATE OF TEXAS,

Plaintiff,

v.

COMMONWEALTH OF PENNSYLVANIA, ET AL.,

Defendants.

_________________

On Motion for Leave to File a Bill of Complaint and Motion for Injunctive Relief, etc.

MOTION FOR LEAVE TO FILE BRIEF
of Brian K. Stanley as Amicus Curiae

 

Motion for Leave to File Brief as Amicus Curiae

Pursuant to Supreme Court Rule 37.2(b), the attorney undersigned respectfully moves for leave to file the accompanying brief as amici curiae. Because of the emergency nature of this action, the proposed amicus has been unable to secure the consent of the parties.

This proposed amicus is an Arizona citizen who is embarrassed by the state’s Motion for Leave to File an Amicus Brief.  It is difficult to understand the motivation behind this mealy-mouthed, neither-for-nor-against doc­ument, unless it is to enable Attorney General Brnovich to tell a fractious and illiterate portion of the populace that he sure has joined in on that Texas “big show” lawsuit without incurring too much professional embarrassment.

Arizona says that its proposed brief would argue that (1.) “election integrity is of paramount importance” and (2.) “if this Court exercises jurisdiction over Texas’s complaint, it is equally important that the Court act quickly.”

“Argument” 1 is merely an unhelpful platitude.  Argument 2 also states an incontrovertible proposition while providing no direct assistance to the Court.  Arizona ought to have pursued this point further:  (A.) If the Court were to take jurisdiction of Texas’ proposed action, it would be critically important to the life of the Nation that such action be resolved very quickly.  (B.) Texas’ proposed action, if entertained by the Court, could not be resolved quickly.  Therefore (C.) It is critically important to the life of the Nation that the Court decline to take jurisdiction of Texas’ proposed action.

Arizona could make this argument without com­promising its traditional position that the Court’s original jurisdiction of actions between states is non-discretionary simply by recognizing that under the established “political question” doctrine Texas’ proposed complaint is non-justiciable ab initio.  The point is well made in Part II, pp. 12 – 16 of Georgia’s opposition memorandum.  Arizona would make a helpful contribution by simply joining in this part of Georgia’s opposition.

Arizona could go further and amplify the political question argument:

A controversy is nonjusticiable – i. e., involves a political question – where there is “a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it … .”

Baker v. Carr, 369 U. S. 186, 217 (1962).

Article II, § 1 of the Constitution and the XII^th Amendment demonstrate textually the commitment of Presidential elections to the state legislatures, the electoral college and Congress, each of which must be recognized, for Presidential election purposes, as a “coordinate political department.”  But now the second alter­native limb of the political question test is equally if not more important.  The lack of judicially discoverable and manage­able standards for resolving Texas’ proposed complaint would alone be sufficient reason for refusing to entertain it.  Even a cursory review of Texas’ lengthy and multifarious complaint will convince the reader with any experience of legal procedures that it is a roadmap for years or decades of litigation.

Some tortuous legal problems are presented, such as drawing a boundary between permissible administrative regulation and practice and impermissible executive revision of legislatively imposed requirements (as well as distinguishing between actions election administrators are required to perform and actions they are permitted to perform).  E.g., Proposed Complaint ¶¶ 62, 63.  While such questions were argued and briefed to, then decided by, a special master,[1] the master’s report considered by the Court and the Court’s opinion(s) drafted, who would have his finger on the nuclear launch button?

But the serious legal issues raised by the Proposed Complaint[2] are discernable and manageable through judicial child’s play compared with some of the potential fact issues.  Such abstruse expert questions as underlie Texas’ “quadrillion to one” statistical claim (¶ 10) would be bad enough.  But the really fact-intensive issues, such as whether exclusion of unsigned mail-in ballots would affect the outcome in Pennsylvania (¶¶ 41 – 46) or whether the “premature removal of ballots from their locked containers” in that state (¶51) affected any votes at all, are clearly unmanage­able within any realistic allocation of judicial resources or acceptable period of time.

Further, entertainment of Texas’ suit would invite countersuits by the states that president-elect Biden carried, who would naturally and rightly want recounts in other states to see if Trump would have won the states in his column if mail-in ballots were excluded.  Taking juris­diction of Texas’ complaint might not destroy the Nation, but it would certainly destroy the Court.

Arizona says it wants to argue that if the Court accepts jurisdiction it will be vitally important that it resolve the action quickly.  It ought to have looked more seriously at the Proposed Complaint and recognized that Texas’ complaint could not, within any tolerable period of time, be resolved in any judicially respectable fashion, and it should have drawn the conclusion that the established political question doctrine must be applied to rule this controversy non-justiciable.

December 14, 2020.        Respectfully submitted,

                                      /s/Brian K. Stanley
                                       Brian K. Stanley
                                      1938 E. Osborn Rd.
                                      Phoenix, Arizona 85016
                                      602-956-9201
                                      court@brianstanleylaw.com
                              

---

[1].       The alternative to the usual referral-to and report-by special master procedure, i.e., original trial proceedings before a nine-judge court, is unthinkable.  Imagine votes, majority opinions, dissenting and concurring opinions, on every procedural motion and evidentiary objection.

[2].       Most of them are decidedly non-serious, such as the argument that state authorities violated election laws by informing the public about the option to apply for a mail-in ballot.  Proposed Complaint ¶¶ 81 and 82.

The Trump Show: Next Episodes

     There is the possibility that Trump is not just deeply neurotic but either has long been or has recently become psychotic.  In that event, his egomaniacal delusion could well lead him to summon violent resistance to his removal.  While such resistance would have very little chance of being successful, however unsuccessful it might be it would have enormously detrimental effects on America’s economy, institutions and prestige.  But I think it’s more likely that Trump will be dissuaded from taking such a risk.

Trump knows that crowds of prosecutors and creditors will be at his heels the moment he relinquishes the Presidency.  He will need money urgently, and the only way he has made money in the past was as a reality-TV performer.  He will try to reproduce that success, but the fantasy biz-world format of his old show won’t work for him any longer.  He has to exploit his political following,  and he can do that only through some sort of alternative-news offering.

The Fox News network has already betrayed him unforgivably (that’s a low bar with Trump).  Newsmax might provide a viable medium, but it will find DJT a prickly partner.  They’ll both be in it for the money, and there won’t be enough to go around.  Major advertisers will not be rushing to sign up.

Creation of a subscription streaming service would require more creativity than the Trump family can command, and anyway Trump’s core constituency will not be coughing up, at least not for long.  If TrumpStream were launched,  it would be well advised to require subscribers to sign two- or three-year contracts.  Then Trump would be way ahead if he could get Deutsche Bank to take an assignment of the contracts in satisfaction of his debt – only that would leave him without a desperately needed income stream.

Come 1/20/2021, Trump’s Twitter account will lose its special head-of-government treatment.  For a time Trump might profit from his “persecution” at the hands of Twitter, but will he be foolish enough to court expulsion from the medium?  TrumpTwitter could only be created with talent and capital that are not at his disposal, but if the investment were made, what would be its burn rate, and for how long would there really be interest?

Anyway, TrumpChannel, cable or streamed, is going to be Trump’s only possible financial lifeline.  (I’m predicting any economic collaboration between Trump and Newsmax, or some even-farther-out media splinter, will be extremely short-lived.  Who – even under less Trump-trying circumstances – has been a business partner of DJT’s and lived to tell the tale, or even been a Trump lender, vendor or customer at other than considerable loss?)  And he must keep his audience stoked up to support the product launch.

Of course the “I wuz robbed” fantasy is essential to that stoking.   Hence, to the extent DJT controls what comes out of the Administration there will be no concession, no cooperation and no letup in the whining.  Right through January 19 the True Believers will keep being riveted by the remarks of Rudy Giuliani even as he moves on from blaming Hugo Chavez to unmasking the role of V.I. Lenin.  (Or will Rudy’s targets be limited to dead non-Russian Marxists? Is Putin’s blackmail that strong?)

If Trump were really a shrewd businessman or a talented media impresario, he would recognize that TrumpChannel has to launch on or before Inauguration Day.  But that would mean that a serious business/creative effort would have to have begun two weeks ago, and there’s no sign of one yet.

Idle Correspondence

Phoenix, 4/23/20

Dear Goldwater Institute Attorneys:

You need to pick your battles, of course.

I expect most of the requests with which you have been inundated are seeking a naïve “personal freedom” attack on state action which, viewed constitutionally and assuming power is exercised within an appropriate statutory framework and without violating the separation of powers, would fall squarely in the heart of the traditional police powers of the sovereign. Such an attack should fail. A better approach would be to focus on the stay-at-home order as lying beyond the scope of authority granted to DHS and the governor under Ch. 6, Art. 9 of A.R.S. Title 36, A.R.S. §§ 36-781 through 790.  Authority to “isolate and quarantine persons” is plainly distinguishable from purported authority to impose restrictions (which amount to neither isolation nor quarantine) on the populace as a whole – especially since a decree of the latter type is irreconcilable with the [due process] requirements of A.R.S. § 36-789.

The best posture would be that of defending someone against whom a governmental authority is seeking to enforce the stay-at-home order, but I think the governor and co. are fighting shy of undertaking any such effort. Fortunately, a declaratory judgment action against the governor should work, too. I’m sure you wouldn’t have any problem finding a plaintiff or two. Victory in one such action is all that would be needed, and I expect it would substantially boost the Institute’s standing with a certain segment of the public.

(The governor would have been on firmer ground trying to get the county health departments to impose “sanitary measures” under A.R.S. § 36-624.)

If you get any requests from landlords whom the governor’s decree has deprived of the enjoyment of their property – has robbed, in other words, of the pursuit of happiness – would it be possible for you to give them my contact information?

Regards,

Brian K. Stanley

Post Scriptum, 4/29/20: In my opinion, the lawsuit I have suggested would be a "slam dunk," though perhaps not 'till pushed to the level of our intermediate appellate court. To the best of my knowledge neither the Goldwater Institute nor any of the other intrepid freedom fighters with whom Arizona is so richly endowed has initiated such an effort. My guess is it's because they're not sure the boost with a certain segment of the public would outweigh the obloquy if their triumph resulted in an obvious surge of COVID-19 cases.

What They Oughta Say

Bernie’s “Plurality Must Win” spiel is eliciting some pretty lame responses from the other Democratic presidential candidates. Heard most often is, “Everybody ought to play by the rules.”  But Sanders isn’t saying that “Candidate with plurality of elected delegates get the nomination” should be an official rule, exactly. He’s saying that for other candidates to bow out in favor of the plurality-winner would be the democratic thing to do.

One not-quite-as-lame counterargument, which so far I’ve heard only from Biden,  is to point out that by this standard 2016 Bernie should have deferred to Hillary long before he did.

But a stronger approach would question the “democratic thing to do” premise itself – something like this:

“Wait a minute.  This isn’t a personal beauty contest. It’s a discussion about the ideas, policies and positions that are now the best for shaping this country’s future.  Let’s suppose as the convention approaches there are two remaining  candidates who want to eliminate all existing private health insurance and three who would strengthen and improve the ACA instead.  And let’s suppose the Medicare-for-all candidates have 30% and 10% of the delegates respectively.  And suppose the strengthen-ACA candidates are 20-20-20.  Does that mean that Medicare-for-all, despite losing 40 to 60, is the democratic choice?”