@Teri_Kanefield@law-and-politics.online
@Teri_Kanefield@law-and-politics.online avatar

Teri_Kanefield

@[email protected]

Former appellate defender and UC Berkeley Law graduate. My practice was limited to representing indigents on appeal.

I’ve written more than a dozen books and published more than 50 short pieces in The Washington Post, Cnn.com, and others. My book prizes include the Jane Addams Book Award.

Tfr

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Teri_Kanefield, to random
@Teri_Kanefield@law-and-politics.online avatar

And for our Thanksgiving dinner, we are having homemade Chilean empanadas.

This is not at all unusual if you're Chilean. (My husband is from Chile and he's a good cook.)

Teri_Kanefield,
@Teri_Kanefield@law-and-politics.online avatar

@kevin

A mixture of beef, onions, olives, raisins and amazing spices.

Teri_Kanefield, to random
@Teri_Kanefield@law-and-politics.online avatar

Answering this question: https://law-and-politics.online/@[email protected]/111429189190084052

Nobody really knows what is meant by "officer of the government." It might include the president. It might not. A president occupies a unique position under the Constitution.

Basically what the judge did was punt the issue to the appellate court.

The judge found that Trump incited an insurrection (a finding of fact) but didn't find that he was an officer of the federal government (a matter of law).

Here's why the distinction matters . . .

1/

Teri_Kanefield,
@Teri_Kanefield@law-and-politics.online avatar

If an issue that goes to an appellate court is an issue of law, the appellate court reviews de novo, which means that no deference is given to the lower court.

See:

https://www.law.cornell.edu/wex/de_novo

With an issue of fact, appellate courts are more deferential to lower courts.

I didn't read the decision but this is from ABC⤵️

As far as what the judge was thinking, your guess is as good as mine, but from this, I'd guess that . . .

2/

Teri_Kanefield,
@Teri_Kanefield@law-and-politics.online avatar

. . . the judge found more textual support for finding that the president is not an officer than for the finding that he is.

Picture a balance scale with slightly more weight on one side.

So now it goes to the appellate court, which might have more nerve than the trial court.

The important part of the finding, though, was that he incited an insurrection.

The appellate court can overturn that, but it unlikely and more difficult because of the greater deference to findings of facts.

3/

Teri_Kanefield,
@Teri_Kanefield@law-and-politics.online avatar

Welcome to the world of constitutional and statutory interpretation.

Basically, the Constitution means whatever the Supreme Court says it means because the Supreme Court is the final arbiter and the Constitution is stuffed full of phrases and words that can be interpreted in different ways.

An interpretation of the word "reasonable" in the Fourth Amendment has literally filled books.

4/

Teri_Kanefield,
@Teri_Kanefield@law-and-politics.online avatar

The Third Section of the Fourteenth Amendment was added to the Constitution after the Civil War to keep former Confederates out of the government.

The idea was to prevent backsliding.

It didn't work because, by the late 1890s, the government and Supreme Court were stuffed full of Confederate sympathizers who rolled back the advances made during Reconstruction and gave us racial segregation.

You can keep out the insurrectionists but not the insurrection sympathizers.

5/

Teri_Kanefield,
@Teri_Kanefield@law-and-politics.online avatar

Judge Luttig offered a passionate critique of the Colorado judge's decision.

With most legal issues, it is possible to argue both sides.

People read these passionate critiques and think "The judge was wrong."

The only conclusion is "Luttig believes the judge was wrong."

Maybe my attitude comes from defense appellate work, which means mostly losing and rarely liking court decisions.

(My clients always lost at the trial level and the presumptions on appeal were against them.)

6/

Teri_Kanefield,
@Teri_Kanefield@law-and-politics.online avatar

Adding one more comment:

The court left wide open the possibility that the appellate court may find that Trump was an officer.

Sort of humbly, the court didn't think it should be the one to make the call.

I think that Colorado certainly has the right to keep Trump off the ballot. I also think that these court proceedings would satisfy due process.

So we'll see.

7/

Teri_Kanefield, to random
@Teri_Kanefield@law-and-politics.online avatar

Trump has filed a motion for a mistrial in the New York case. The motion is here:
https://iapps.courts.state.ny.us/nyscef/ViewDocument?docIndex=N0PX1FMtdplL/b5Oq9DwXg==

I've never practiced in New York, but I think it's safe to say this is a slam dunk in the Loser Department.

Complaint #1: The court, in newsletters, linked to articles that the Trumps think are unflattering to them. (I have no idea what this is about. It's pages 3-4)

Then we get into their beef about the law clerk.

Here, I suggested it's misogyny:
https://law-and-politics.online/

1/

Teri_Kanefield,
@Teri_Kanefield@law-and-politics.online avatar

They include pictures to show that the clerk is "co-judging" the case.

From the brief:

"As these photographs reflect, the Principal Law Clerk is given unprecedented and inappropriate latitude. Indeed, before the Court rules on most issues, the Court either pauses to consult with her on the bench or receives from her contemporaneous written notes."

As evidence that everyone, even people who don't like Trump, thinks it is biased, they quote the National Review.😂

2/

Serious woman, watching the court with a series face, sitting beside the judge.

Teri_Kanefield,
@Teri_Kanefield@law-and-politics.online avatar

I included a screenshot to show the bold and italics.

Then of course they talk about her personal social media accounts and a picture of Schumer.

Their argument is:
(1) She is acting like a co-judge, therefore,
(2) anything she does in her personal life is as if she is a judge in the case.

Wrong, and wrong.

This whole thing is for the Court of Right Wing Public Opinion.

That way, when he loses, it will be because the Judge Hates Trump.

3/

Teri_Kanefield,
@Teri_Kanefield@law-and-politics.online avatar

Here we have something unusual: As evidence, we get statements from Trump's lawyers.

So . . . the lawyers are acting witnesses offering testimony?

"Your honor, this whole trial is unfair. I can prove it! My lawyer said so! I'd like to enter his testimony as evidence."

Then of course they bring in the unfairness of the gag order. Again their assumption is that she isn't staff. She's a co-judge.

They looked up all of her political contributions.

4/

Teri_Kanefield,
@Teri_Kanefield@law-and-politics.online avatar

@AGTMADCAT

I will answer for everyone.

Teri_Kanefield,
@Teri_Kanefield@law-and-politics.online avatar

Someone asked: At what point is a motion so ridiculous that it gets the lawyer who filed it disbarred?"

Disbarred would require knowingly (and probably repeatedly) lying.

Sanctions can happen for frivolous filings, but this is rare in criminal cases or a cases when the government is going after an individual.

Because of the power imbalance, defendants have a lot of latitude.

Most criminal appeals in CA lose. I think the success rate is about 5%. Motions for mistrial are probably similar.

6

Teri_Kanefield,
@Teri_Kanefield@law-and-politics.online avatar

Some criminal appeals that have gone on to change the law of the United States felt, at the time, like Hail Mary appeals.

That said, this one is weak and obviously for the court of public opinion.

They are trying to apply standards for judges to a law clerk on the theory that she's a co-judge, which is a bit unhinged.

Interesting thing to observe: the appeal was a way around the gag order. They're attacking the clerk throughout this document.

They do have a right to appeal, though.

6/

Teri_Kanefield,
@Teri_Kanefield@law-and-politics.online avatar

Whether this motion is frivolous or a nontransparent end run around the gag order, I can't say.

It could be.

If so, it is an interesting development.

They are accusing her of violating the court rules for the amount of donations she can make in any given year.

But a "mistrial is a drastic remedy to be used only sparingly to prevent manifest injustice. . .

7/

Teri_Kanefield,
@Teri_Kanefield@law-and-politics.online avatar

. . . and is appropriate only whenever circumstances arise that cast substantial doubt upon the fairness or impartiality of the trial.

Because the underlying premise is wrong (she was a co-judge) I'm sure that a law clerk's personal business doesn't effect the fairness of the trial.

The only thing that might have created the circumstances that cast "substantial doubt" are all Team Trump's attacks on the clerk, and in my world (not NY) that can't be a basis for a mistrial.

8/

Teri_Kanefield,
@Teri_Kanefield@law-and-politics.online avatar

Whether this motion violates the gag order is an interesting question.

I didn't follow the trial as closely as others, but it was clear that the lawyers for Trump planned to raise the issue of the clerk on appeal. They made a point of creating a record, so the judge knew they would do this.

I'm not sure a gag order can prevent a person from raising issues in motions and on appeal. (Possibly nobody knows because I doubt anything like this ever happened.)

9/

mattblaze, to random
@mattblaze@federate.social avatar

The Supreme Court code of ethics uses the word "should" 53 times and the word "shall" 0 times. https://www.supremecourt.gov/about/Code-of-Conduct-for-Justices_November_13_2023.pdf

Teri_Kanefield,
@Teri_Kanefield@law-and-politics.online avatar

@mattblaze @Bam @icymi_law yup. No enforcement mechanism. It’s meaningless.

Teri_Kanefield, to random
@Teri_Kanefield@law-and-politics.online avatar

This won't work.⤵️ It will not fool anyone.

"GOP strategists urge congressional candidates to campaign against a national abortion ban"

"Disturbed by tough election losses on Tuesday, Republicans say the party needs to make clear to voters, in speeches and TV ads, that it doesn't favor banning all abortions."

Their idea: Say the GOP is for "reasonable limits on late-term abortions" as opposed to Dems' "taxpayer-funded abortion without limits.”🙄

https://www.nbcnews.com/politics/congress/republicans-urge-congress-candidates-oppose-national-abortion-ban-rcna124253

1/

Teri_Kanefield, to random
@Teri_Kanefield@law-and-politics.online avatar

My son was born at 1:30 a.m. on November 5.

We set the clocks back last night at 2:00 a.m.

That means we went through the hour of 1:00 a.m. - 2:00 a.m. twice.

That means we had his exact birth time twice today.

So he has a double birthday today, right?

🤔

Teri_Kanefield, to random
@Teri_Kanefield@law-and-politics.online avatar

Someone asked me what I think is going on with Trump's lawyers attacking the clerk.

Yesterday I said this:

"It's hard to tell what is going on with that. My best guess is that Trump's lawyers are fatigued, know they are losing, and are getting weird and paranoid."

Judge Engoron, who sees it all up close, said there is misogyny.

I just saw a picture of the clerk and I have revised my opinion.

The judge may be right . . .

1/

Teri_Kanefield,
@Teri_Kanefield@law-and-politics.online avatar

Women in Trump World are supposed to look like plastic mannequins. It's okay for them to be smart and professional as long as they bat their eyelashes and in subtle ways defer to men.

Ivanka is the picture of this. She is allowed some independence as long as she remembers that Daddy is the boss, and as long as she looks the way a woman is supposed to look.

What they are reading as "eye rolls" and "scowls" may simply be expressions tolerated in men but not women.

2/

Teri_Kanefield,
@Teri_Kanefield@law-and-politics.online avatar

In 2018 @virginiaheffernan wrote a few pieces about Ivanka and the women in Trump world.

They were brilliant and explained the role of women in MAGA politics.

The clerk is smart. Serious. No-nonsense. She is paying close attention. She doesn't defer to the men. Her attitude is probably "I am as smart as the judge." She watches the courtroom with sharp eyes and takes it all in.

They assume, therefore, that she hates them.

That is my latest theory.

3/

Teri_Kanefield,
@Teri_Kanefield@law-and-politics.online avatar

Someone asked: "I've read suspicions that they are trying to provoke the judge and get some grounds for a later mistrial. What's your thought on that?"

That won't work. I spent 12 years writing appeals for people who lost their trials, so I can speak with confidence when I say provoking a judge doesn't get you a mistrial. Kise knows that.

Provoking a judge makes you look bad in front of appellate judges, most of whom were trial judges and are generally in sympathy with the judge.

4/

Teri_Kanefield,
@Teri_Kanefield@law-and-politics.online avatar

Sometimes the most direct and obvious answer is the correct one. Trying to provoke a judge is one of the stupidest things a litigator can do.

After seeing what the cleck looks like on the bench, the simplest explanation is that the judge's sense was probably correct.

I only saw a few pictures of how she looks on the bench, but from the pictures, I'll say this: If she were a man, they'd take her seriously.

Trump world can use women (and like to have women around them!) That's different.

5/

Teri_Kanefield,
@Teri_Kanefield@law-and-politics.online avatar

Someone asked if a clerk has a law degree.

Yes. Not only that, but they are extremely difficult jobs to get and generally go to the stop students from the top law schools.

There are career clerks (that's their permanent job) and clerks who cycle though out of law school for a few years. Getting one of those clerkships means you were a top student.

People fresh out of law school are the best at legal research because they just did lots of it.

I don't know this clerk's employment status.

6/

Teri_Kanefield, to random
@Teri_Kanefield@law-and-politics.online avatar

Reporter Stephen Neukam confirmed that a "joint" speakership between Kevin McCarthy and Jim Jordan is currently being floated.

The Constitution provides that "The House of Representatives shall chuse their Speaker and other Officers."

In four other places, "the speaker" is singular.

I don't know if "Speaker" can be two people.

I'm not sure how this would work in practice, whether it is even Constitutional, or how it would be challenged.

Teri_Kanefield, to random
@Teri_Kanefield@law-and-politics.online avatar

😂
3 days ago, Sidney Powell pleaded guilty.

Today Trump said: "She was never my lawyer."
https://www.cnn.com/2023/10/22/politics/trump-sidney-powell/index.html

I guess he forgot that on November 14, 2020, he named Powell as a member of his "truly great team" of "wonderful lawyers."

Not that it matters. She doesn't have to be his lawyer to be a witness against him.

I would have thought, instead, he would have tried to claim any communication she had with him was privileged. He loves trying to invoke attorney-client privilege.

Teri_Kanefield, to random
@Teri_Kanefield@law-and-politics.online avatar

Oh the lighters side, the latest MAGA conspiracy theory is sort of hilarious.

Trump says no way Biden is smart enough to be handling all of this right now, so his theory is that Obama is behind the scenes pulling the strings.

How are those not backhanded compliments that Biden is doing a brilliant job and Obama is a super smart guy?

It's all over the Internet and social media.

Teri_Kanefield, to random
@Teri_Kanefield@law-and-politics.online avatar

I said I'd get back to US law and politics, but it all seems trivial right now.

Biden's speech earlier was top notch. I attached a snippet.

Also, from recent reporting:

"The Biden administration is now coordinating with other countries on a plan that would offer safe passage out of Gaza for civilians who risk getting caught in the crossfire in the densely populated coastal enclave, administration officials said."

That's what I was hoping for.

Teri_Kanefield, to random
@Teri_Kanefield@law-and-politics.online avatar

Here is the irony of Trump asking Cannon to delay his trial until November 2024 on a flimsy excuse:

If he were smart, he'd try to go to trial first with the one judge most likely to try to tip the scales in his favor.

IInstead, this trial is likely to come last.

That said, I have no idea how far he will be able to push Cannon, but the excuse that somehow he can't travel to D.C. to view the docs is absurd.

https://storage.courtlistener.com/recap/gov.uscourts.flsd.648653/gov.uscourts.flsd.648653.167.0.pdf

Teri_Kanefield, to random
@Teri_Kanefield@law-and-politics.online avatar

I gather Trump's lawyer, Alina Habba, is presenting Trump's "They're Out To Get Me" defense.

It won't work, of course.

It also cynically assumes that everyone (or lots of people). commit fraud and poor Trump is the one being picked on by the government.

"If they get me for defrauding the government out of a billion dollars they can do it to you! They're not after me. They're after you! I'm just standing in their way!"

Teri_Kanefield, to random
@Teri_Kanefield@law-and-politics.online avatar

Hi, everyone,

Happy Trump Is In Court for Fraud Day.

https://www.reuters.com/world/us/donald-trumps-business-empire-peril-civil-fraud-trial-opens-new-york-2023-10-02/

Also, goodness.

SCOTUS, minus a recused Clarence Thomas, rejected Eastman's attempt to challenge the lower court's rulings that described him as a linchpin in former President Donald Trump’s bid to subvert the 2020 election.

That means the finding that he likely committed crimes stands.

Teri_Kanefield, to random
@Teri_Kanefield@law-and-politics.online avatar

Scott Hall pleaded guilty.

It looks like he got a nice deal in exchange for truthful testimony:

"Hall agreed to testify truthfully when called, to five years probation, a $5,000 fine, 200 hours of community service and a ban on polling and election administration-related activities. He also recorded a statement for prosecutors and pledged to pen a letter of apology to Georgia voters."

And, as per the article, Yes, Definitely a victory for the prosecutors.

https://www.ajc.com/politics/breaking-first-trump-rico-defendant-takes-plea-agreement/3L3OZWOFIJHWHLJUTQSNHO4VL4/

1/

Teri_Kanefield, to random
@Teri_Kanefield@law-and-politics.online avatar

What is the practical effect of the fraud judgment against Trump Org?

I don't think anyone knows yet. For one thing, we don't know what the damages will be. James is asking for 250 million.

Worst case scenario: loans will be recalled, assets sold to pay the judgment, and the house of cards collapses.

I'm sure Trump has money stashed around the globe, so he won't lose everything.

It will certainly be harder for him to pretend he's a successful businessman and billionaire 😂

1/

Teri_Kanefield, to random
@Teri_Kanefield@law-and-politics.online avatar

Oh goodness.

Time for Fun Reading Annoying Legal Documents

Trump's request for an extension of time to file pretrial motions is beyond absurd.

To begin with, Trump asked for a two-month extension.

Two MONTHS? 🤦‍♀️

When I did appeals, a request for more than 30 days required a showing of "exceptional" need.

His reason? he needs more time to do the "research."

Paraphrase: "Your honor, my lawyers are in the slow reading group."

https://storage.courtlistener.com/recap/gov.uscourts.dcd.258148/gov.uscourts.dcd.258148.63.0.pdf

1/

Teri_Kanefield,
@Teri_Kanefield@law-and-politics.online avatar

He does the "as the court knows" thing and makes a statement that is not true. (Screenshot #1)

The "novel" legal issues?

"This is the first time in history anyone—let alone a President of the United States—has been charged, in the defense’s view wrongfully, with conspiracies related to a contested election."

Wait. Haven't hundreds of people been charged in connection with the J6 attack?

What the heck?

Also, he says "a President' has been charged.

Um, maybe "former" president?

2/

Teri_Kanefield, to random
@Teri_Kanefield@law-and-politics.online avatar

Did you all catch this morsel about how Trump valued his properties?

Trump "also seems to
imply that the numbers cannot be inflated because he could find a 'buyer from Saudi Arabia' to pay any price he suggests."

(His fans will continue to love him)

https://iapps.courts.state.ny.us/nyscef/ViewDocument?docIndex=tTcU_PLUS_uJJ8i5XjrCTSNk2eA==

Teri_Kanefield, to random
@Teri_Kanefield@law-and-politics.online avatar

Here's Trump's New York fraud decision:

https://iapps.courts.state.ny.us/nyscef/ViewDocument?docIndex=tTcU_PLUS_uJJ8i5XjrCTSNk2eA==

Scathing doesn't begin to describe it.

Letitia James did it. It took her 5 years. These civil cases are complicated -- but she did it.

If you just skim through, you can see how irritated the court was with Trump's shenanigans. The conclusions are at the end.

Teri_Kanefield, to random
@Teri_Kanefield@law-and-politics.online avatar

Remember yesterday I said we could sleep through the removal hearing for the 3 fake electors?

Well. Evidently they argued that they were "alternate" electors because a pending lawsuit meant there were no official electors. (Um. No.)

Next they argued that because the Electoral Count Act anticipates two slates of electors, they were acting under federal law.

No again.

Even if their elector argument had merit (it doesn't) they were still not federal officers.

https://www.washingtonpost.com/national-security/2023/09/20/georgia-trump-electors-federal-court/

1/

Teri_Kanefield,
@Teri_Kanefield@law-and-politics.online avatar

The removal statute specifically requires that the person be a federal officer AND acting under color of his or her office.

If I am acting pursuant to a federal law, that doesn't make me a federal officer.

The only reason I can see for trying to raise this argument is court is to try to establish their first prong: They want to try to establish that they were not "fake," they were alternate.

The argument does not help with removal. At all.

2/

Teri_Kanefield, to random
@Teri_Kanefield@law-and-politics.online avatar

Here is Mark Meadow's latest brief:
https://s3.documentcloud.org/documents/23980501/georiga-v-meadows-11th-cir-brief.pdf

I've said the way to get the Cliff Notes version is to read the table of contents (or if there isn't one, scroll through and read the headings.)

This is intelligently written and well-argued.

Will Meadows win?
That's a different question 😂

Among other things, he argues that the state cannot frame charges in a way that, based on the framing, defeats the federal statute.

Will it win . . . ?

It could.

That doesn't mean it will.

Teri_Kanefield, to random
@Teri_Kanefield@law-and-politics.online avatar

Here's the DOJ's request for a gag order:

https://storage.courtlistener.com/recap/gov.uscourts.dcd.258149/gov.uscourts.dcd.258149.57.0_1.pdf

As with all of the DOJ's filings, this was written for public consumption. It contains very little legalese, the law is presented in a straightforward way, and the material is, um, I guess you could say compelling.

The DOJ refers to this as a high-profile case.

Well, that's your classic understatement. I think it's safe to say that everyone in DC by now has a strong opinion about Trump.

1/

Teri_Kanefield,
@Teri_Kanefield@law-and-politics.online avatar

When there are competing legal interests (First Amendment v. need for a fair trial) the courts generally balance these two interests.

One way is to make sure the gag order is no broader than necessary. (That's why the DOJ is careful to ask for a "narrowly defined" gag order.)

Another is to see if there is an alternate way to protect the integrity of the trial (like using jury selection techniques to make sure to screen out jurors who can't be unbiased.

6/

Teri_Kanefield,
@Teri_Kanefield@law-and-politics.online avatar

This is why it seems to me, at the very least, she'll grant the requests about polling prospective jurors. It's hard to see that falling under the First Amendment.

Another issue is what the court should do if the order is violated.

Chutkan had one solution: Go to trial sooner.

My gut reaction: Trump will be Trump and everyone knows him, which is why the real danger is jurors afraid to serve.

Clearly jurors will need protection.

7

Teri_Kanefield,
@Teri_Kanefield@law-and-politics.online avatar

I just learned that writing a thread on balancing conflicting legal interests is a really good way to feel better after a Covid shot. 😂

Again, Shana Tova to everyone who celebrates.

In fact, I hope you ALL have a wonderful year 💕

8/

Teri_Kanefield,
@Teri_Kanefield@law-and-politics.online avatar

Adding: Keep this in mind. Trump really, really, really wants to have a fight over the First Amendment.

One thing that was notable about the charges in this case is that none of them offered Trump a First Amendment defense.

I have to believe that was intentional. The DOJ planned ahead and deprived of this defense.

His response will be that he is a candidate for office, which means a solution is to have the trial sooner.

9/

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