☕️ ODORS AND OPPORTUNITIES ☙ Tuesday, March 19, 2024 ☙ C&C NEWS 🦠

Trump’s lawyers appeal of Judge McAfee’s order in Fani Willis case; Trump’s NY lawyers file massive appeal in the real estate case; and libs call for Trump judge's removal after her 2-page order.

Good morning, C&C, it’s Tuesday! Actually, it’s Trump Tuesday, since there’s so much going on in the Trump cases I had to research and report on the status of all top three cases. In today’s roundup: Trump’s Georgia lawyers seek an appeal of Judge McAfee’s order in the Fani Willis case; Trump’s New York lawyers file massive appeal brief in the overpriced real estate case; and Trump-deranged liberals are calling for Judge Cannon to be removed from the South Florida case after she filed a fascinating two-page order yesterday.

🗞💬 WORLD NEWS AND COMMENTARY 💬🗞

🔥 Fani Willis’s odor of mendacity is rapidly becoming a malodorous miasma of failure. NBC bitterly ran a story yesterday headlined, “Trump and co-defendants seek review of Georgia judge's decision to let DA Fani Willis stay on the case.” Yesterday, Trump’s lawyers filed a thoughtful, well-argued, 5-page ‘Motion for Certificate of Immediate Review’ of Judge McAfee’s fragrant order.

The newest Trump motion asks permission to appeal the judge’s ruling immediately, out of the normal order. Normally, to appeal this kind of order, defendants must wait until after trial and after an unfavorable jury verdict.

It stinks that defendants have to wait so long to appeal, but it’s for a good reason. The rationale is the rule cuts down the  appeals court’s workload. After all, the defendants might be found innocent at trial. If that happens, the defendants won’t need help from the appeals court, since they won anyway. This way, the appeals court won’t have to review thousands of intermediate rulings during a case.

The order reeks of appellate opportunity. Tellingly, in its very first argumentative paragraph, the motion cited the case’s lingering “odor of mendacity.” Basically, the motion argued that getting rid of Nathan Wade didn’t cure the appearance of impropriety — an appearance of impropriety the judge expressly found.

The motion’s mention of the case’s “lingering odor of mendacity” — all the lying — reinforced my view that Judge McAfee’s order was more helpful than harmful. Judge Joe Brown agreed with my take and made the same point on his 2-hour show last week. (Watch at 1.25x or 1.5x speed; hat tip C&C comments). Judge Brown thinks Judge McAfee’s order was an appellate gift to Trump, a kind of an insurance policy, to whip out after an unfavorable jury verdict.

In other words, Judge McAfee’s order seemed so well-designed for an appeal it looks like he was trying to help Trump.

Last week I suggested Trump’s lawyers might want to jam the order in their back pocket and not immediately appeal. But Trump’s lawyers clearly disagree. With access to a lot more inside strategic information than me (or Judge Brown), they clearly think an immediate appeal now is better than relying on the order to rescue the case later. NBC’s article hinted at a possible reason why:

If they don’t want to take this fetid case first, the appeal is the best say to buy some time. I made the same point while evaluating Fani’s appellate options. It’s no secret. Crazed liberals expressed terror yesterday at the thought the appeal might prevent a 2024 trial. For just one example:

I’d never second-guess Trump’s lawyers’ decision to appeal now. After all, Trump’s lawyers are operating in the context of his various cases, which are all heating up. They surely have a global strategy. There’s a critical path for the entire inventory of cases that we can’t see from the outside.

The appeal may or may not happen. Both Judge McAfee and the Appellate Division must give a green-light. Given the case’s unique nature, and the order’s strong language criticizing Fani, I’d guess a 75% chance (strong confidence) the appeal will be granted.

But this case is a unicorn, which means that nobody can really predict anything.

If the immediate appeal is allowed, things quickly get even more interesting. Will the appellate court set expedited deadlines to hurry things along? Or will it stick with the normal amount of briefing time since the issues are so novel and important? If briefing is expedited, will the parties ask for more time anyway? Will the court of appeals hold oral arguments? After that, how will the appeals court rule? It has creative options besides just affirming or reversing; for example, it could order Judge McAfee to re-open the evidence and then re-decide.

At this point, there’s not enough perfume in Atlanta to get the stink off Fani Willis.

🔥 Fox News ran a troubling story yesterday headlined, “Legal experts weigh in on Trump’s options after failure to secure $464M appeal bond: ‘uncharted territory’.” The headline undersold the story. Yesterday, Trump’s New York lawyers filed a massive five thousand page appellate reply brief in corpse-like Judge Engoran’s “over priced real estate” case. The brief itself came to 29 pages. The rest was affidavits and exhibits.

The Reply’s very first exhibit was the affidavit of Gary Giulietti, president of the Lockton Companies, described as “the largest privately held insurance brokerage firm in the world.” That would make him a qualified insurance expert. Gary started with the conclusion—bonding the unbelievable $464 judgment is literally impossible:

Later, Gary explained why buying a bond for that insane judgment is impossible—it’s because it’s another legal unicorn:

Finally, Gary noted that, even if Trump could get a bond for that whopper judgment, the bond’s cost, by itself, would be “punitive”:

Trump’s lawyers are smartly setting up the appellate argument that the bond requirement itself is unconstitutional in this case. There are two ways to argue constitutional issues: ‘facially’ or ‘as-applied.’ In a facial challenge, a plaintiff argues a law is unconstitutional for everybody. But in the less-common ‘as-applied’ scenario, the plaintiff argues the law only becomes unconstitutional when it is applied to him.

To prevent being reversed for unconstitutional “unusual punishment” or “excessive fines,” Judge Engoran, who looks much like an old goat, would have been better off ordering a lower penalty for Trump’s completely victimless crime. But the pallid Judge got greedy, or happy, or something, and ordered an historic, planet-sized judgment, which is now creating all sorts of legal problems.

To make the constitutional argument, the Trump team first needed to prove they really tried to buy an affordable bond — but couldn’t. That is exactly what this reply memo carefully documented.

You’re getting to see some very good lawyering here. Trump’s lawyers are multiplying the issues, giving themselves more tools with which to work. They started out with very little to work with and are building the tools as they go.

Monday is the deadline to post the bond. If Trump doesn’t post the bond, and the appeals court refuses to stay without bond, then woke, Soros-funded District Attorney Letitia James can commence collections. Like foreclosing on — liquidating — Trump’s various properties in New York.

But that won’t end the fight. Trump can resist collections, and can fight with James in state court, on a property-by-property basis, slowing things down. When Trump runs out of state-court options, he can then throw the threatened properties into Chapter 11 bankruptcy. He might be able to stop Letitia James for two or three years.

So, the bond is a real problem, but it isn’t fatal. Not yet. Trump still has options.

🔥 The judge in the South Florida Mar-a-Lago raid case, Judge Aileen Cannon, entered a very interesting two-page order yesterday.  Online Trump Derangement Syndrome sufferers immediately decided the order was so strategically helpful to Trump that Judge Cannon must be secretly getting help from someone smarter than she is:

Many TDS people are calling for Judge Cannon to be removed because of how effective she’s been:

If you read the short order, you wouldn’t make heads or tails of it. You certainly wouldn’t understand all the liberal angst. In a few paragraphs, Judge Cannon simply proposed two dense jury instructions about the President’s authority under the Presidential Records Act, and asked the lawyers to propose alternative instructions if they don’t like hers. She also asked them to identify what, exactly, the jurors are supposed to decide on those two issues.

Asking parties to prepare jury instructions is unremarkable. In every jury trial, the instructions always come from the parties. Both sides propose instructions, try to work out any differences, and if they can’t agree the judge decides whose instruction wins. Or the judge can draft their own instruction. (Judges would rather use mutually-agreed instructions because it eliminates appeals over jury instruction wording.)

That said, asking for two specific instructions, and proposing the language first, is not common. So people are right to conclude the judge is up to something.

Courtwatcher Julie Kelly thinks Judge Cannon is trying to build an airtight case for dismissal. As it happens, Judge Cannon is currently considering a Trump motion to dismiss his case for “selective and vindictive prosecution.” That motion argues that it’s unconstitutional to prosecute Trump since Biden did the same thing (or worse) and isn’t being prosecuted by DOJ.

Judge Cannon is still thinking about it.

This latest order focuses on some difficult language in the Presidential Records Act. It’s not perfectly clear what is the difference between documents that are “personal” and documents that are “presidential,” including who decides which documents are the President’s “personal” documents versus which ones are considered “presidential.”   

Does the President decide? If not the President, then who? Who has more authority than the President? Santa Claus? A divine being? David Copperfield? Is a seance involved?

Julie Kelly thinks the judge forcing the government to take a position on what that PRA language means, so that she can turn around and hang them with their own words. Simply put, it looks like Judge Cannon is setting them up for something.

Annoyed Special Prosecutor Jack Smith

I have a general rule to be 1,000 times more cautious whenever a judge asks me to concede something. Especially if the judge seems like he’s trying to be innocently helpful. For instance, the judge might ask, “Mr. Childers, would you concede the sky is colored blue?” That’s a red flag. Usually judges ask for concessions to set lawyers up, so later they can’t appeal the judge’s decision. After all, they conceded. So I’m likely to answer with something like, “well your honor, sometimes the sky has clouds in it, which are white. Plus, the sun is yellow. So, no, I can’t concede the sky is blue.”

Something like this must be what Julie Kelly senses. Judge Cannon’s request for the government to draft two jury instructions feels like a way to get them to concede something, to set them up, to make the government take a position that Judge Cannon can then rule on somehow, based on their own words.

It sure seems like more good news. Certainly, both the Fani Willis case and this Mar-a-Lago Raid case now seem heading in the right direction, with smart, reliable judges at the helm. Only Judge Engoran’s case still feels out of control, and of the three, Engoran’s is the least problematic case for Trump, since it’s only about money and has no chance of jail.

Have a terrific Tuesday! Come back tomorrow for more Coffee & Covid, where things are always under control and smart minds always remain at the helm.

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