Joy of Limited Jurisdiction

Today, the Court of Appeals for the Eleventh Circuit reversed a federal district judge’s appointment of a special master to review documents seized by the FBI in a raid on former President Trump’s Florida residence.

I have this nerdy interest in the U. S. Constitution. As every first-year law student and even the occasional eighth grader studying for the constitution test knows, the federal courts are courts of limited jurisdiction. Basically, that means that one must provide a reason to be in the court based on the Constitution or some federal law.

Fast forward to my unhealthy habitual CNN watching for hours every evening and then again each morning. One will recall, if he or she habitually watches CNN, that our former president made off with documents and artifacts from his time in the White House and keep them in his Florida home.

The FBI and the National Archives asks for them back. The former president gave some back. They asked for the rest. He stalled. Then he gave some more back. Someone provided a false declaration, a fancy name for an affidavit, that there were no more documents.

Oh, but there were. The FBI raided Mar-a-Lago and seized the documents and is now investigating to find out what secrets were contained in the documents and who might have learned those secrets. That and who can be held criminally liable for illegally possessing secret documents.

A big story on CNN. CNN and its viewers like me, love an FBI raid.

A juicy story with an espionage angle took a turn to the truly exciting world of federal court jurisdiction.

President Trump surprisingly filed a lawsuit in the United States District Court for the Southern District of Florida asking the court to appoint a “special master,” a lawyer unrelated to either Trump or the Government, to examine the documents and see if the Government really needs them.

Basically, the target of an investigation asked a court to interfere in the FBI’s investigation of the target’s crimes. Hmmm. Okay then. Can one do that? Therein lies the excitement of this jurisdictional query.

District Judge Aileen Cannon said her federal court “had the power” and appointed the special master who has for month know been looking at documents. I confess I kind of lost track of the story assuming that CNN would alert me if need be.

Today, the Eleventh Circuit reversed the appointment of the special master and dismissed President Trump’s case today for want of jurisdiction. “For want of juridiction.” Can the English language be more elegant? One can read the opinion here: https://media.ca11.uscourts.gov/opinions/pub/files/202213005.pdf

The jurisdictional lesson, at least in my mind, is that the federal court’s equitable jurisdiction, a court’s inherent right to impose fairness, is limited, very limited and make no exceptions for former presidents. A former president is a citizen like any other, except with lots of security and a nice pension.

I won’t get into the four-part test based on the Richey case so let’s just skip to the end:

“In considering these arguments, we are faced with a choice: apply our usual test; drastically expand the availability of equitable jurisdiction for every subject of a search warrant; or carve out an unprecedented exception in our law for former presidents. We choose the first option. So the case must be dismissed.”

As is the case with most reversals, courts of appeal typically do not openly chastise a district judge, but one phase in part B of the opinion did stand out to me: “The district court was undeterred by this lack of information.”

Ouch. That’s pretty salty language about the Trump appointee.

So there you go. The Eleventh Circuit closes the courthouse door once again. CNN and the jurisdiction of federal courts, my two loves meet again.

I still love photography too. The Chicago Elite Classic starts tomorrow.  

Why is Texas Suing Pennsylvania, Georgia, Michigan and Wisconsin to Overturn Election

The State of Texas filed a complaint in the United States Supreme Court against Pennsylvania, Georgia, Wisconsin and Michigan asking to enjoin [those state’s] use of the 2020 election results to appoint presidential electors and authorize those states to conduct a special election to appoint presidential electors or to direct such State’s legislatures to appoint a new set of presidential electors or to appoint no electors at all.

And it’s not just Texas. President Trump is attempting to intervene with his own complaint. Twenty-two other states are supporting the lawsuit as friends of the court. And lots of congressmen and state legislators too.

Basically, Texas and the other sycophants are saying that four other states’ presidential election results should be thrown out.

Really? Seriously? Seems a little drastic.

You probably don’t know this about me but I have been interested in the little details in the Constitution, for a long time; details such as the kinds of cases for which the Supreme Court has original jurisdiction, (meaning that’s where one files the case). I remembered that suits between states are one of those few kinds of cases. U. S. Constitution, Article 3, Section 2, Clause 2. (I didn’t remember the cite. I had to look that up.)

So I got the complaint from the Supreme Court’s website and I read it.

Texas claims that government officials “weakened ballot integrity” through “executive fiat” or “friendly lawsuits” and “flooded states with millions of ballots to be sent through the mail, or placed in drop boxes with little or no chain of custody and, at the same time, weakened the strongest security measures protecting the integrity of the vote . . ..” Complaint at pp. 1-2.

Okay, that’s crazy talk but, just for our purpose here, suppose it is true. What is the legal theory? What law gives the Supreme Court the authority to overturn election results in Pennsylvania?

Texas suggest that it is the U. S. Constitution’s Electors Clause, Article 1, Clause 2. I confess that’s a new one on me. The Electors Clause provides that “[e]ach State shall appoint, in such manner at the legislature thereof may direct, a number of electors . . ..”

So I guess the theory goes that the electors appointed, or soon to be appointed, in Pennsylvania, Georgia, Michigan and Wisconsin, were not appointed in the manner directed by the legislature, i.e., by executive fiat, friendly lawsuits and flooding states with millions of weak security ballots.

As we all know, the Federal Courts have been tightening up the notice pleading standard after Twombly. Plus, we’ve got Rule 9(b) that requires that fraud claims be plead with particularity.

So what in particular did the election officials do to appoint electors in violation of the manner directed by their legislatures? This is where the train leaves the Twombly tracks.

Let’s look at the actual allegations of fact about vote stealing:

Pennslyvania

Pennsylvania Supreme Court extended the deadline to accept non-postmarked ballots for three days after the election. ¶48.

Pennsylvania allowed people to cure defective mail in ballots. ¶50.

According to Republican legislators in PA, there were lots of ballot irregularities. ¶55-58.

Georgia

Authorized ballot processing before election day. ¶67

Court ruling made it far more difficult to challenge signatures. ¶70.

Michigan

Michigan secretary of state sent millions of absentee ballot applications to voters. ¶81-84

Michigan secretary of state allowed on-line absentee ballot applications.¶85

Wayne county didn’t stamp ballot return envelopes as verified. ¶93.

One guy, Jesse Jacob, was instructed not to look at signatures on ballot envelopes. ¶94

Lots of ballots were counted without a registration number for precincts in Detroit which meant ballots were counted multiple times. ¶97.

Wisconsin.

Wisconsin used unmanned ballot drop boxes. ¶110.

Wisconsin officials were letting indefinitely confined citizens register to vote without a photo ID. ¶116-126

One guy in Wisconsin said postal workers back dated ballots. ¶127.

That’s what you’ve got? And you want to disenfranchise tens of millions of voters in four states? You want to overturn a presidential election on this? I didn’t read anything about hundreds of thousands of discarded ballots or altered ballots. I didn’t read anything about more ballots than applications, or more fewer ballots than applications. It’s hard to steal votes. It’s really hard to systematically steal hundreds of thousands of votes in four states.

So good luck with that Texas?

But God help us all of the Trump appointees on the Supreme Court go along with it. I fear we’ll be going to the mattresses. We should all be holding our breath.

I would not want to be John Roberts today.

Texas Attorney General Ken Paxton filed the case. (website photo)

Texas Attorney General Ken Paxton filed the case. (website photo)