Judge Arthur Engoron orders Trump not to attack his court staff; the planned May trial date in the documents case looks dicey; three new defamation lawsuits interest us
Excellent discussion. I think that Scott Hall, the bail bondsman who pled guilty in the Georgia RICO case may be more important than you let on. In addition to the Coffee County voting machine charges (which is what Sidney Powell is charged with), he also is the one who had a 63 minute conversation with Jeffrey (no pants) Clark which which got Clark to claim he had a "whistleblower from Georgia" coming to DC-this makes his letter that wasn't sent tied much closer to the Georgia conspiracy. Also, Hall was involved in arranging for some of the people who pressured the election workers to get together and get access. I think that the misdemeanor charges were a sweeter deal for him than it appears on first blush, and he may have more key evidence in firming up these RICO charges. (Unless she's just really crazy, the Coffee County lady who came to DC as a "whistleblower" will plead pretty soon IMHO)
This morning in the NYAG case, Habba and co-counsel requested a brief ex parte before Judge Engoron. When they came back from chambers:
First thing, Judge clarifies a Q: "We’re having a nonjury trial because this is a nonjury case. "
AG "clearly checked off nonjury and there was no motion for a jury," Justice Engoron says. And "it would not have helped to make a motion. No one forgot to check a box.”
Somebody was getting embarrassed by all the commentary claiming she’d forgotten to check a box!
Re: Mar A Lago value - I did do the Zillow nerd thing AND read the 35 pager.
Best I can tell is that Trump and his chumps including Eric are picking the "I can value it any way I want" fight in to distract from addressing the elements of fraud involved in massively over valuing properties for the purpose of getting loans, and changing that valuation by a lot when going for insurance and tax reductions - using attested statements of Financial Condition which the Mazar's partner (Bender) disavowed.
As far as fun with Zillow - as Josh points out, there are restrictions on the property (I believe more than just the "must be a social club one) that change the value. Just now I pulled the Zillow "sold" page for the area... maxes out around $22 million in the area, just for interest.
The really fun part of that was that Zillow showed MarALago had been sold about a month ago to an entity owned by Don Jr for $244 million.
The sale info was quickly yanked and Don Jr denied it loudly.
I remember wondering at the time if that got the attention of the Judge monitoring Trump Org.
The funniest thing in this episode was Josh & Ken attempting to curry favor with all the Italians they have offended by wishing each other a happy Genocider...er...Columbus Day.
This video is regarding the, apparently, widespread practice in NY Commerical Real estate of greatly exaggerating the Sq footage of properties. I previously mentioned, in response to some of the comments in a previous episode that the importance of the AG suing the Trump Org. is to prevent systematic risk in the entire real estate market. All of that property being used for collateral, that is 1/2 or 1/4 of the size claimed creates a huge risk to the financial system - that the taxpayers will no doubt have the pleasure of bailing out. https://www.youtube.com/watch?v=h8Rq5CJBWnk&ab_channel=LouisRossmann
Maybe you discussed this before and I just don't remember it, but: While I understand that the defense (in the documents case) is entitled to discovery, etc., it is not at all clear to me why the content of the classified documents would matter enough to delay the trial. I thought it was the fact of their classification (and the surrounding obstruction, etc.), rather than the contents of the classified material, that is at issue. If the main purpose of discovery (IANAL) is to give the defense all info, inculpatory and exculpatory, what possible difference would the classified material itself make?
On a completely unrelated topic, I am interested in hearing comments concerning this from the Law Dork:
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Thank you for being one of more than 23,000 people supporting Law Dork with a free subscription as a new U.S. Supreme Court term gets underway.
I’m very grateful to all of you for subscribing, and understand that not everyone can afford a paid subscription. I totally get that — and, if that’s you, I’m so happy you’re here! If you are able to pay, though, a paid subscription helps to support my independent legal journalism.
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Justice Alito's marathon arguments in defense of South Carolina's racial gerrymander
Also: The Eleventh Circuit rejected Florida's request that it be allowed to enforce its anti-drag law on appeal.
CHRIS GEIDNER
OCT 12
READ IN APP
The U.S. Supreme Court heard arguments on Wednesday in a case over South Carolina’s congressional map.
More accurately, those of us in the courtroom listened to Justice Sam Alito’s nearly non-stop attempt over more than two hours to tell all of us why the justices should reverse a three-judge district court that ruled that the map includes an unconstitutional racial gerrymander. He was joined in making his case by John Gore — the former Trump administration lawyer who’s now at Jones Day and was representing the South Carolina lawmakers defending their map.
I wrote about the arguments for Slate:
Specifically, Alito doesn’t like the “clear error” standard for reviewing the factual findings of the district court here:
As [Justice Ketanji Brown] Jackson explained, under the clear error standard, “A finding [from the district court] that is plausible in light of the full record, even if another is equally or more so, must govern.”
Ultimately, that won’t really matter if Alito has his way. Alito was driven on Wednesday, seeking to undermine—and change—how deferential the “clear error” standard is in gerrymandering cases. Pushing back on the questions that had been posed to Gore by several of his colleagues, especially the three Democratic appointees, Alito stopped to tell everyone that the clear error standard “is not an impossible standard” for South Carolina to meet.
“It doesn’t mean that we simply rubber-stamp findings by a district court, particularly in a case like this, where we are the only court that is going to be reviewing those findings,” he said, a reference to the fact that three-judge district court rulings are heard directly on appeal by the Supreme Court. Further still, Alito argued that it matters here that the decision below “relies very heavily, if not entirely, on expert reports.” From there, Alito segued into a question about a specific issue regarding the analysis of one of the plaintiffs’ experts and a question that South Carolina raised in its final brief at the Supreme Court about “an alleged flaw” in that expert’s analysis.
It wasn’t just that Alito doesn’t like the standard — because the district court’s ruling should certainly be upheld under that standard — it’s also that he was incredibly aggressive in opposing the challengers to the map.
I counted and, as I wrote at Slate, Alito “pos[ed] no fewer than 37 questions to the NAACP Legal Defense and Education Fund’s Leah Aden—including a marathon 19-question session taking up 11 pages of the transcript during his final chance to question her. … In comparison to Alito’s 37 questions, the rest of the court—all eight justices combined—asked a total of 28 questions.”
What can I say? It was a bit weird!
If Alito wants to be a district court judge, he’s more than welcome to retire from the Supreme Court and start sitting on district court cases. When it comes to the Supreme Court’s current standard of review, though, the sort of questions Alito was asking are questions that the justices generally aren’t asking—and shouldn’t be asking—in such a case.
As Aden put it at one point, “Are we retrying expert testimony on appeal?”
For Alito and Justice Brett Kavanaugh in particular, it appeared that, for the most part, their answer is yes.
Ultimately, the case will come down to whether the other conservatives go along with Alito and, if they do, how they upend such a basic rule about clear error review to gut yet another aspect of voting rights protections.
Law Dork covers the Supreme Court in depth. Subscribe today.
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Another Hamburger Mary’s drag win
On Wednesday, the U.S. Court of Appeals for the Eleventh Circuit rejected Florida’s request to enforce its anti-drag law during the state’s appeal of a loss in the district court.
Back in June, the district court ruled in the challenge brought by Hamburger Mary’s of Orlando that the law (S.B. 1438) is likely unconstitutional, including due to its overbreadth. That ruling led the district court to a conclusion that the law is likely unconstitutional on its face — meaning it cannot be constitutionally enforced. As such, the court issued a preliminary injunction that barred any enforcement of the law.
In addition to its appeal of the ruling, Florida Secretary of the Department of Business and Professional Regulation Melanie Griffin asked the appeals court for a partial stay of the injunction during the appeal. As the official responsible for enforcing the law, she argued that the state should be allowed to enforce the law against anyone but the Orlando restaurant that brought the lawsuit.
On a 2-1 vote, the Eleventh Circuit denied Griffin’s request. Judges Adalberto Jordan and Robin Rosenbaum, both Obama appointees, voted against the state’s request. Judge Andrew Brasher, a Trump appointee, would have granted it.
A question re: Section 230 and Elon Musk-- is Elon actually protected by 230 for his statements on Twitter, and vice versa, is Twitter protected by 230 for Elon's statements? 230 states that "No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider" but it's Elon's service, he owns it, and the Ninth Circuit held that "Publication involves reviewing, editing, and deciding whether to publish or to withdraw from publication third-party content."
(The same question also applies to Donald Trump and Truth Social.)
First, no one covers land valuation well. Nice job addressing the issues without getting too nerdy.
Second, it not that you can't value the property as a residential... but i'm not sure a profession would. In a professional appraisal the value would be derived from two approaches. In this case I'd bet income and sales comparison. However, the highest and best use of the property can (and often does) skew the sales comparison approach. If I research golf club sales and determine the sales value of an operating club to not be the highest and best use, then I change gears to the next reasonable land option - residential. Especially so as a golf resort is (I assume) spot zoned and the rezoning process would be both available and possibly encouraged by the municipality. Then I add a hypothetical to the effect of " no idiot is going to buy this as a golf club it's going to be purchased as a redevelopment and valued accordingly" (but better words), reconcile the two values and go get a coffee somewhere nice.
keep in mind assessors will not use the hypothetical to rezone. Assessment is as is.
But again, no one covers real estate valuation well. Especially valuation of odd properties.
What would it take for the zoning applicable to Mar-A-Lago to be changed to make it either "developable" or eligible for the construction of a single family home ? If either or both of these zoning outcomes were achievable, even with considerable time, effort and expense, would an appraiser be justified in incorporating these outcomes, qualified explicitly by appropriate probabilities, into their appraisal?
Donald Trump's First Gag Order
Excellent discussion. I think that Scott Hall, the bail bondsman who pled guilty in the Georgia RICO case may be more important than you let on. In addition to the Coffee County voting machine charges (which is what Sidney Powell is charged with), he also is the one who had a 63 minute conversation with Jeffrey (no pants) Clark which which got Clark to claim he had a "whistleblower from Georgia" coming to DC-this makes his letter that wasn't sent tied much closer to the Georgia conspiracy. Also, Hall was involved in arranging for some of the people who pressured the election workers to get together and get access. I think that the misdemeanor charges were a sweeter deal for him than it appears on first blush, and he may have more key evidence in firming up these RICO charges. (Unless she's just really crazy, the Coffee County lady who came to DC as a "whistleblower" will plead pretty soon IMHO)
This morning in the NYAG case, Habba and co-counsel requested a brief ex parte before Judge Engoron. When they came back from chambers:
First thing, Judge clarifies a Q: "We’re having a nonjury trial because this is a nonjury case. "
AG "clearly checked off nonjury and there was no motion for a jury," Justice Engoron says. And "it would not have helped to make a motion. No one forgot to check a box.”
Somebody was getting embarrassed by all the commentary claiming she’d forgotten to check a box!
The smallest possible constructive criticism for Ken: "calumny" is pronounced with the stress on the first syllable, sort of like "calorie."
Enjoyable discussion as always.
Re: Mar A Lago value - I did do the Zillow nerd thing AND read the 35 pager.
Best I can tell is that Trump and his chumps including Eric are picking the "I can value it any way I want" fight in to distract from addressing the elements of fraud involved in massively over valuing properties for the purpose of getting loans, and changing that valuation by a lot when going for insurance and tax reductions - using attested statements of Financial Condition which the Mazar's partner (Bender) disavowed.
As far as fun with Zillow - as Josh points out, there are restrictions on the property (I believe more than just the "must be a social club one) that change the value. Just now I pulled the Zillow "sold" page for the area... maxes out around $22 million in the area, just for interest.
The really fun part of that was that Zillow showed MarALago had been sold about a month ago to an entity owned by Don Jr for $244 million.
The sale info was quickly yanked and Don Jr denied it loudly.
I remember wondering at the time if that got the attention of the Judge monitoring Trump Org.
The funniest thing in this episode was Josh & Ken attempting to curry favor with all the Italians they have offended by wishing each other a happy Genocider...er...Columbus Day.
If Trump's lawyers unsuccessfully argue against a gag order that will make Trump a better client, are they good lawyers or bad lawyers?
This video is regarding the, apparently, widespread practice in NY Commerical Real estate of greatly exaggerating the Sq footage of properties. I previously mentioned, in response to some of the comments in a previous episode that the importance of the AG suing the Trump Org. is to prevent systematic risk in the entire real estate market. All of that property being used for collateral, that is 1/2 or 1/4 of the size claimed creates a huge risk to the financial system - that the taxpayers will no doubt have the pleasure of bailing out. https://www.youtube.com/watch?v=h8Rq5CJBWnk&ab_channel=LouisRossmann
Maybe you discussed this before and I just don't remember it, but: While I understand that the defense (in the documents case) is entitled to discovery, etc., it is not at all clear to me why the content of the classified documents would matter enough to delay the trial. I thought it was the fact of their classification (and the surrounding obstruction, etc.), rather than the contents of the classified material, that is at issue. If the main purpose of discovery (IANAL) is to give the defense all info, inculpatory and exculpatory, what possible difference would the classified material itself make?
I’m going to guess that they just finished recoding an episode https://www.theguardian.com/us-news/2023/oct/12/senator-bob-menendez-charged-foreign-agent-egypt?CMP=Share_iOSApp_Other
On a completely unrelated topic, I am interested in hearing comments concerning this from the Law Dork:
Forwarded this email? Subscribe here for more
Thank you for being one of more than 23,000 people supporting Law Dork with a free subscription as a new U.S. Supreme Court term gets underway.
I’m very grateful to all of you for subscribing, and understand that not everyone can afford a paid subscription. I totally get that — and, if that’s you, I’m so happy you’re here! If you are able to pay, though, a paid subscription helps to support my independent legal journalism.
Upgrade now!
Thanks for considering it!
-Chris
Justice Alito's marathon arguments in defense of South Carolina's racial gerrymander
Also: The Eleventh Circuit rejected Florida's request that it be allowed to enforce its anti-drag law on appeal.
CHRIS GEIDNER
OCT 12
READ IN APP
The U.S. Supreme Court heard arguments on Wednesday in a case over South Carolina’s congressional map.
More accurately, those of us in the courtroom listened to Justice Sam Alito’s nearly non-stop attempt over more than two hours to tell all of us why the justices should reverse a three-judge district court that ruled that the map includes an unconstitutional racial gerrymander. He was joined in making his case by John Gore — the former Trump administration lawyer who’s now at Jones Day and was representing the South Carolina lawmakers defending their map.
I wrote about the arguments for Slate:
Specifically, Alito doesn’t like the “clear error” standard for reviewing the factual findings of the district court here:
As [Justice Ketanji Brown] Jackson explained, under the clear error standard, “A finding [from the district court] that is plausible in light of the full record, even if another is equally or more so, must govern.”
Ultimately, that won’t really matter if Alito has his way. Alito was driven on Wednesday, seeking to undermine—and change—how deferential the “clear error” standard is in gerrymandering cases. Pushing back on the questions that had been posed to Gore by several of his colleagues, especially the three Democratic appointees, Alito stopped to tell everyone that the clear error standard “is not an impossible standard” for South Carolina to meet.
“It doesn’t mean that we simply rubber-stamp findings by a district court, particularly in a case like this, where we are the only court that is going to be reviewing those findings,” he said, a reference to the fact that three-judge district court rulings are heard directly on appeal by the Supreme Court. Further still, Alito argued that it matters here that the decision below “relies very heavily, if not entirely, on expert reports.” From there, Alito segued into a question about a specific issue regarding the analysis of one of the plaintiffs’ experts and a question that South Carolina raised in its final brief at the Supreme Court about “an alleged flaw” in that expert’s analysis.
It wasn’t just that Alito doesn’t like the standard — because the district court’s ruling should certainly be upheld under that standard — it’s also that he was incredibly aggressive in opposing the challengers to the map.
I counted and, as I wrote at Slate, Alito “pos[ed] no fewer than 37 questions to the NAACP Legal Defense and Education Fund’s Leah Aden—including a marathon 19-question session taking up 11 pages of the transcript during his final chance to question her. … In comparison to Alito’s 37 questions, the rest of the court—all eight justices combined—asked a total of 28 questions.”
What can I say? It was a bit weird!
If Alito wants to be a district court judge, he’s more than welcome to retire from the Supreme Court and start sitting on district court cases. When it comes to the Supreme Court’s current standard of review, though, the sort of questions Alito was asking are questions that the justices generally aren’t asking—and shouldn’t be asking—in such a case.
As Aden put it at one point, “Are we retrying expert testimony on appeal?”
For Alito and Justice Brett Kavanaugh in particular, it appeared that, for the most part, their answer is yes.
Ultimately, the case will come down to whether the other conservatives go along with Alito and, if they do, how they upend such a basic rule about clear error review to gut yet another aspect of voting rights protections.
Law Dork covers the Supreme Court in depth. Subscribe today.
Upgrade to paid
Another Hamburger Mary’s drag win
On Wednesday, the U.S. Court of Appeals for the Eleventh Circuit rejected Florida’s request to enforce its anti-drag law during the state’s appeal of a loss in the district court.
Back in June, the district court ruled in the challenge brought by Hamburger Mary’s of Orlando that the law (S.B. 1438) is likely unconstitutional, including due to its overbreadth. That ruling led the district court to a conclusion that the law is likely unconstitutional on its face — meaning it cannot be constitutionally enforced. As such, the court issued a preliminary injunction that barred any enforcement of the law.
In addition to its appeal of the ruling, Florida Secretary of the Department of Business and Professional Regulation Melanie Griffin asked the appeals court for a partial stay of the injunction during the appeal. As the official responsible for enforcing the law, she argued that the state should be allowed to enforce the law against anyone but the Orlando restaurant that brought the lawsuit.
On a 2-1 vote, the Eleventh Circuit denied Griffin’s request. Judges Adalberto Jordan and Robin Rosenbaum, both Obama appointees, voted against the state’s request. Judge Andrew Brasher, a Trump appointee, would have granted it.
Josh and Ken...are you going to make us wait until next week to hear about SBF's woes? Can't wait to hear your take on the trial.
Speaking of defamation cases, Justice Thomas still on his crusade to protect the rich and powerful from any criticism by their lessers.
https://www.nytimes.com/2023/10/10/us/clarence-thomas-libel-supreme-court.html
A great reminder of the excellent book, "Actual Malice" by Samantha Barbas, a history of the Sullivan v NYT case.
https://www.amazon.com/Actual-Malice-Rights-Freedom-Sullivan/dp/0520385829
A question re: Section 230 and Elon Musk-- is Elon actually protected by 230 for his statements on Twitter, and vice versa, is Twitter protected by 230 for Elon's statements? 230 states that "No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider" but it's Elon's service, he owns it, and the Ninth Circuit held that "Publication involves reviewing, editing, and deciding whether to publish or to withdraw from publication third-party content."
(The same question also applies to Donald Trump and Truth Social.)
Ehh... Two things -
First, no one covers land valuation well. Nice job addressing the issues without getting too nerdy.
Second, it not that you can't value the property as a residential... but i'm not sure a profession would. In a professional appraisal the value would be derived from two approaches. In this case I'd bet income and sales comparison. However, the highest and best use of the property can (and often does) skew the sales comparison approach. If I research golf club sales and determine the sales value of an operating club to not be the highest and best use, then I change gears to the next reasonable land option - residential. Especially so as a golf resort is (I assume) spot zoned and the rezoning process would be both available and possibly encouraged by the municipality. Then I add a hypothetical to the effect of " no idiot is going to buy this as a golf club it's going to be purchased as a redevelopment and valued accordingly" (but better words), reconcile the two values and go get a coffee somewhere nice.
keep in mind assessors will not use the hypothetical to rezone. Assessment is as is.
But again, no one covers real estate valuation well. Especially valuation of odd properties.
Love the show!
What would it take for the zoning applicable to Mar-A-Lago to be changed to make it either "developable" or eligible for the construction of a single family home ? If either or both of these zoning outcomes were achievable, even with considerable time, effort and expense, would an appraiser be justified in incorporating these outcomes, qualified explicitly by appropriate probabilities, into their appraisal?