(Photo by Win McNamee/Getty Images)
When God closes an appeal he opens a quashal.
Or … something?
Yesterday was a mixed bag for the criminal ex-president, as three courts in two states weighed in on his multiple pending cases.
In New York, the Second Circuit tossed Trump’s motion for an emergency stay of the “remand order” by Judge Hellerstein that wasn’t a remand at all. This was part of Trump’s desperate attempt to fend off sentencing in the false business records case by removing the case to federal court. Except removing a case more than 30 days after arraignment requires leave of the district court judge, and he didn’t get it. Trump appealed to the Second Circuit, falsely characterizing Judge Alvin Hellerstein’s denial of leave to file as a “remand,” when in fact the case had never been in federal court, and there was nothing to, uh, mand.
But then New York Supreme Court Justice Juan Merchan acceded to Trump’s demand to delay sentencing until after the election, which functionally mooted the need for emergency relief. So the Second Circuit denied the request “in light of the state court’s adjournment of sentencing.”
Also yesterday the New York Court of Appeals swatted away Trump’s attempt to get rid of what remains of the gag order in that case. Post-trial, Justice Merchan lifted the ban on attacking the jury and witnesses. But Trump howls that his First Amendment rights are being cruelly trampled because he’s not allowed to send trollstorms after the line attorneys or the judge’s family. Red state AGs, led by Missouri Attorney General Andy Bailey, even filed a batshit Supreme Court motion demanding that the justices swoop in, lift the protective order, bar the state from sentencing Trump pre-election, and save democracy.
That effort failed, and so did Trump’s appeal to the First Judicial Department, which ruled in August that “the People’s evidentiary submissions in opposition to his motion in Supreme Court demonstrate that threats received by District Attorney staff after the jury verdict continued to pose a significant and imminent threat.” And now the state’s high court has bounced it as well, “upon the ground that no substantial constitutional question is directly involved.”
But the day wasn’t a total loss for Trump, as three charges from the 41-count Georgia RICO indictment were quashed by Fulton County Superior Court Judge Scott McAfee under the Constitution’s Supremacy Clause.
Trump’s coup lawyer John Eastman and fake elector Shawn Still moved to dismiss the entire indictment on the theory that it implicated exclusively federal conduct. The court rejected the sweeping challenge, finding that there were numerous violations of state law. But he did dismiss counts 14, 15, and 27, all of which implicated false statements to a federal court.
Specifically, the electors mailed copies of the fake electoral certificates and their attestations to the chief judge of the Northern District of Georgia, and Trump and his lawyers made false claims about dead voters and felons voting illegally in a federal suit against Governor Brian Kemp. Judge McAfee tossed those charges, ruling that “Georgia does not have a ‘legitimate interest’ and jurisdiction to punish such statements.”
And Trump’s lawyers must be delighted with a footnote in a separate ruling denying a motion to dismiss count one, the big RICO charge. The court wrote:
The United States Supreme Court’s decision in Trump v. United States, 144 S. Ct. 2312 (2024) will likely affect the allegations of Count One, particularly the overt acts contained within. However, unlike the many other challenges raised by the Defendants, the impact of Presidential immunity has not been fully briefed or argued by the parties, and this order does not reach that issue. Similarly, this Order does not address Defendants’ arguments brought under the Supremacy Clause or a theory of federal officer immunity.
The Supreme Court’s presidential immunity opinion, particularly its ban on use of evidence of official acts to prove non-official crimes, was clearly going to pose a problem for the indictment. But Judge McAfee’s acknowledgment that it may doom the entire indictment makes the District Attorney’s decision to charge this case as a massive, interconnected conspiracy look even more suspect.
Of course, thanks to her other suspect decisions, the entire enterprise is on hold for the foreseeable future. So, there’s that bit of good news for President Crimetime as well.
Liz Dye lives in Baltimore where she produces the Law and Chaos substack and podcast.