Two State Court Cases With National Political Impact
Two completely unrelated court actions are in the news today. There is no real common thread between the two, other than that they both involve state court actions and that both have rather large political overtones. So just to warn you up front, there won't be any sweeping conclusion at the end that ties the two cases together in any way (fair warning).
Pennsylvania's redistricting
The final nail in the coffin (the one containing the old Republican-gerrymandered district map of Pennsylvania) was hammered in today, when the United States Supreme Court declined to review a decision by the Pennsylvania supreme court. This was the expected outcome, but it is still significant.
The case, for anyone who has been in a coma for the past year or so, was brought in state court to challenge the district map instituted after the 2010 Census. Republicans took control of this redistricting, and drew themselves the most favorable boundaries imaginable. The result has been that even when the total state vote counts between Democrats and Republicans are very close, Republicans repeatedly wound up winning 13 of the 18 districts.
Democrats sued, in state court, challenging the district map under the Pennsylvania constitution and state law. They won, when the court agreed the current map was unconstitutionally drawn. The case was appealed up to the state supreme court, who also agreed that the GOP map was unconstitutional (under the state's constitution). The state supreme court asked for a new map from the Republicans, and they came up with one that was just as bad. So the court instituted a map drawn by non-partisan experts in redistricting.
The Republicans then sued in federal court, in a last-ditch effort to stop the new map. They lost, and they appealed to the U.S. Supreme Court. Who just refused to hear the case. This means that the new map will be used in the upcoming 2018 midterm elections, and as a result Democrats should pick up at least three House seats, and perhaps as many as five or six.
The U.S. Supreme Court rarely gets involved in cases which are decided solely upon state law, and they rarely get involved in cases about politics and districting as well. So it was entirely expected that they would refuse to get involved in the Pennsylvania case, but now that they have done so there is no further path to any legal challenge for the Republicans. Which is why, even though expected, it is newsworthy.
The Supreme Court will be ruling on two other partisan gerrymandering cases this term (from Maryland and Wisconsin), so a precedent is going to be set on the issue one way or another, at the federal level. However, independent of this, what the Pennsylvania case shows is that it might be more productive for people upset about gerrymandering to make their case in the state courts. Many state constitutions address voters' rights in much more detail than the United States Constitution does, meaning it's an easier legal case to make at the state level in a lot of places. What the end of the legal road for the Pennsylvania case means is that such challenges can indeed succeed, and are therefore worth exploring. This could have a big effect on the 2020 election, although after that every state (with more than one House member) is going to redistrict once again anyway, after the decennial Census.
Trump defamation case
The second legal ruling with political consequences today came from a New York judge, who ruled that the defamation case brought by Summer Zervos against Donald Trump can indeed move forward.
Zervos is one of the multiple women who accused Donald Trump of groping them during the 2016 presidential campaign. She sued Trump for defamation when Trump not only denied all the accusers' stories, but denied that any of it ever happened -- that he hadn't even met any of the women. Which, incidentally, is a lot easier to prove as a lie than what actually happened between the two in a closed room.
Trump's lawyers argued that a sitting president shouldn't have to be subjected to a state civil legal case while in office. This was a pretty thin argument, because that question was largely addressed when Bill Clinton was sued while in office, in a similar civil case. However, Trump's lawyers argued, that was in a federal court, not a state court. Somehow, that was supposed to make a legal difference, so they argued that the entire case should either be thrown out or at the least put on hold until Trump was out of office.
The judge disagreed. The judge ruled that the case can go forward, precisely because of the precedent set in the Clinton case. This, too, was not entirely unexpected, given the thinness of the Trump side's legal argument.
What it means, however, is that at some point Donald Trump is going to be deposed, under oath. Zervos is not going to be bought off with hush money, so Trump's normal method of making such cases go away will be unavailable to him. And if the case goes forward, a deposition is almost guaranteed to happen. The lawyers for Summer Zervos are going to be able to ask Trump about not just what he said about her, but also about his entire sexual history, and also the long history Trump has of lying about his own sexual history. Just like Clinton had to face.
Now, Bill Clinton is a canny guy. He knows the legal system, and he knew where the danger zones would be. And yet he still got caught in the deposition, even though he's a savvy guy. This gave birth to the adjective "Clintonesque," as when Bill tried to explain what "the meaning of is is."
Donald Trump is not such a canny guy when it comes to being questioned under oath. He lies so often he doesn't even realize he's doing so, to put it mildly. Put him under oath and sit him down for five of six hours' worth of exploring his sexual misconduct history in minute detail, and it's a pretty safe bet he will utter provable lies -- probably a whole bunch of them. There's a word for doing this -- it is called "perjury," and it is a serious crime. So no matter whether Summer Zervos wins or loses her case, it could have major political and legal implications for Trump.
Of course, there's a second lawsuit out there as well, the one brought by Stormy Daniels. Daniels is suing to get out of a non-disclosure agreement (what her lawyer called the "hush agreement") so she can fully tell the story of her affair with Donald Trump. She filed her case in state court as well, so the Summer Zervos case sets an important precedent. If Trump can be sued by Zervos, then he can also be sued by Daniels, in other words.
If Trump's legal team fights the Daniels case, then it could also lead to Trump sitting down for a second deposition -- which would cover exactly the same ground. What is Trump's entire sexual history? What is his history of lying about his sexual history? What is his history of paying hush money to guarantee silence about his sexual history? Picture Donald Trump having to sit still for this type of questioning for many hours on end. And then ask yourself how many times will he utter things that are provably false?
Trump's legal team right now is consumed with the investigation by Bob Mueller. Trump is going to have to sit down with Mueller at some point and answer questions. This is causing much fear and panic among his lawyers, who know full well how unmanageable Trump is.
It would be more than a little ironic if Trump receives his comeuppance not in his interview with Mueller, but in either (or both) of the depositions he's going to soon have to give in state courts. Mueller probably won't be asking many questions about Trump's sex life, but it's going to be the main focus of the two depositions. Being deposed under oath means getting caught in a lie opens you up to perjury charges. It also may mean videotapes of Trump lying under oath might soon be in the public domain. And that might be a bigger cause for worry from Trump's lawyers than anything Mueller might ask him.
-- Chris Weigant
Follow Chris on Twitter: @ChrisWeigant
Are the Trump depositions allowed to become public?
I can already hear it: "Who cares if the U.S. president lied under oath? Everyone lies under oath. Lying under oath isn't really a crime, not like *real* crime. You know what I mean."
neilm -
Didn't Clinton's deposition go public? I seem to remember seeing video clips from it...
John M from Ct. -
Heh. Sad but true, these days...
-CW
i'll take stained dresses for 200 alex...
CW [3] I had a beer with a lawyer buddy last night and he thinks the deposition will be made public. He expects Trump's lawyer to try to stop its release, but barring national security concerns, it will be a difficult argument to win.
The rest of the crowd agreed that the deposition should be on pay-per-view and we would definitely sign up - especially if we could submit questions via twitter.
Only if you continue to do it all the time, Don.
Is Trump a serial philanderer? Is he a sexist pig? Does he objectify and abuse women on a regular basis? Does he lie about it on a regular basis? Does he consider himself entitled to abuse women? Does the bear shit in the forest? Does the sun rise in the east? is water wet?
CW: Donald Trump is not such a canny guy when it comes to being questioned under oath. He lies so often he doesn't even realize he's doing so, to put it mildly.
That was such a nice way of saying Trump believes his own BS. :)
Didn't Clinton's deposition go public? I seem to remember seeing video clips from it...
Yep. It aired on the same day that Clinton spoke to the United Nations, so we got it in split screen.
He then went down the street and did a seminar with British Prime Minister Tony Blair on the topic of 'Third Way' politics. One thing you can say about Bill Clinton: he didn't hunker down into a bubble.
@don,
this blog post is about two court cases. one of the two court cases does involve gerrymandering, but campaign finance reform is at best tangential to redistricting, so the answer to your question is yes, you're off-topic. on the previous column, mezzomamma made an excellent suggestion, and i would urge you to follow her advice.
gill v. whitford is the wisconsin case that the SCOTUS will be using to rule on gerrymandering, and their refusal to take the PA case gives us some clues as to how they will rule. as i read the tea leaves, the probable outcome is that most gerrymandering cases will stay the province of state courts, but partisan gerrymandering will not be ruled unconstitutional at the federal level. probably with a tenth amendment justification, i think they'll say the text of the constitution doesn't apply and it is therefore reserved to the states.
JL
nypoet22 [4] -
Oh, wait! I know this one, Alex -- "Who was Linda Tripp?"
Heh.
neilm [5] -
Q for your lawyer friend: wouldn't Trump's deposition be mandatory in this kind of case? I was certain when I wrote this, but now I'm wondering if I'm on solid legal ground or not.
As for you final paragraph, man, that's brilliant! We could cut a huge chunk out of the national debt, and Trump could be enticed into doing it by the promise of "the best ratings EVER!"
Slam dunk! Win-win!
Heh...
C. R. Stucki [8] -
Is the Pope Catholic?
Tangent thought: who ever would have thought a giant corporation would create a multi-year (no signs of abating yet) ad campaign based upon: "Does a bear shit in the woods?" Astonishes me each time I see one, personally...
Kick [9] -
I wrote this (obviously) before the Playmate lawsuit news broke, and also before the Stormy Daniels polygraph news broke.
Which brings up an interesting point. Donald Trump would probably pass a polygraph, because they are not as perfect as the creator of Wonder Woman would have us all believe (look it up if you don't know that story).
Polygraphs can be beaten. You can be trained to beat them (ask the CIA how), or you can just be a natural. Trump would fall into the latter category. Some personality types (such as psychopaths and sociopaths) can easily beat so-called "lie detectors" because they do not really believe they are lying, or because they just don't care one whit.
If Trump's lawyers were smart, they'd test him in private and then have him take a lie detector test on any of it -- my guess is he'd pass with flying colors!
And... Balthasar wins the Daily Double! I'll take "Famous Split-Screen News Events" for $1000, Alex...
Heh. Excellent memory, just had to say that!
Oh, and: Clinton wasn't a bubble president, he was the Bubba President! Even I remember that one! Heh.
nypoet22 [12] -
I dunno, I think SCOTUS might be enticed by an actual metric that has been devloped to measure how extreme the gerrymandering is. In the previous gerrymandering case they ruled on (from, as memory serves, 10-15 years ago), they stated that in the future they might rule that a certain degree of gerrymandering was acceptible, but that there might be a red line beyond which it would not be. But they noted that no such measurement existed, so it'd be impossible to draw that red line.
Since then a social scientist has indeed come up with a way to measure it. So perhaps they will draw that red line this time around. It's certainly a possibility that didn't exist in the previous case (and, some say, was the reason why they took this case up this time around).
Pure speculation, but it's got to be seen as at least a possibility.
-CW
Don Harris -
OK, you seem to be being somewhat reasonable, so let's see if we can agree on something that works for everyone.
First, you have no idea how loath I am to ban a commenter. I have never done so, and I don't want to break that record. So you've got that on your side, even if you didn't realize it.
However, nobody likes listening to a broken record. This is precisely what you sound like, often.
How about a reasonable compromise?
Bring up your pet issue once on any article thread. But if nobody takes your bait, then let it rest. Feel free to join in the rest of the debate on other subjects, but stop with the "when all you've got is a hammer, every problem begins to look like a nail" pretzel-twists to bring every discussion back to your issue.
Sound reasonable to you? I would bet that commenters here wouldn't mind one post per article, personally.
As for your pet issue, here's a question for you: If Jerry Brown runs for president in 2020, do you think he'd follow your rule?
In 1992, he pioneered the concept, after all. He swore he wouldn't take more than $100 in donations from anyone, and no corporate money (I don't even think super PACs existed back then, but he swore off the PAC money that was around at the time). He was obnoxious with his reminders of his "1-800 number," which is how he financed his whole campaign.
But he lost.
Since then, he has won statewide office in CA three times, and will go down in history as the state's only FDR (only governor EVER to be able to serve four terms, due to the grandfather clause in the term limits law). But in these elections, he did not follow his $100-only rule.
He won all three.
So, just as a thought exercise, what do you think he'd do if he ran for president in 2020?
-CW
I'm glad you brought up Jerry Brown, Chris.
Several times I started a comment directed at Don about the California governor. I think Don should read up on him.
And, geez, wouldn't it be great if there were a presidential ticket with Brown and Biden on it? Co-presidents with a cabinet to die for ...
And, Don, take a look at the campaign Meg Whitman ran against Brown and I'll be a monkey's uncle if it doesn't bring a lasting smile to your face!
Co-presidents with a cabinet to die for ...
Or a cabinet to die before...
Huh??
nypoet
12
I think JL is exactly right about how SCOTUS will rule on partisan gerrymandering. They threw out the Texas partisan gerrymandering legal claim on the grounds they lacked jurisdiction to consider an appeal, but they agreed to take up a case regarding racial gerrymandering.
https://www.texastribune.org/2018/01/16/us-supreme-court-dismisses-texas-democrats-partisan-gerrymandering-app/
CW
14
Tangent thought: who ever would have thought a giant corporation would create a multi-year (no signs of abating yet) ad campaign based upon: "Does a bear shit in the woods?" Astonishes me each time I see one, personally...
The commercials or the bears? ;)
I'd prefer to hear more about One Demand ... tomorrow.
CW
14
Polygraphs can be beaten. You can be trained to beat them (ask the CIA how), or you can just be a natural. Trump would fall into the latter category.
While it's true that polygraphs are easy to beat with practice, it would likely depend on why Trump was being tested by polygraph as to whether or not he could pass every question. If he was being tested by Mueller regarding the Trump/Russia issue, I don't think Donald Trump could pass a polygraph to save his life because it tracks physical attributes like heartbeat, how much you're sweating, whether or not you're scared, upset, agitated, irritated, angry, tired, worried, defensive, and preoccupied regarding receiving a terrible outcome on your polygraph.
Emotional reactions during a polygraph create physiological reactions that very easily produce false-positive readings; that is likely where Trump would fail. Trump is so emotional and unhinged... versus the cool, calm, and collected demeanor it requires to pass a polygraph... that he'd likely produce false-positive readings on questions where he actually told the truth {if there were any}.
Alas, we'll never find out if he could pass since he'll never in a million years allow himself to be tested by polygraph because he knows he's a con. :)
Don Harris [22] -
OK, that was funny!
You can post as many silly jokes here as you want. Heck, I often do, so why not everyone else?
:-)
-CW
Kick [25] -
Yeah, but that works both ways. If Trump were impossible to establish a baseline on, because he was ALWAYS twitchy, then it'd be impossible to rate him on any of the serious questions later on (in other words, if he had no "calm, resting" state).
However, I do think you're right, he probably would fail one on Putin/Russia. I was thinking only of him taking one on his sex life.
Where's Wonder Woman's golden lasso of truth when you need it?
:-)
-CW
Don Harris [24] -
OK, fair enough. Let me explain my own biases.
First, please review my Thanksgiving column from last year:
http://www.chrisweigant.com/2017/11/22/thankfully-2017-is-almost-over/
I was (picture fingers VERY close together) THAT close to hanging up my blogging hat last year. Politics had gotten much more than just depressing, it had gotten downright surreal.
Since then, things have been looking up. Roy Moore lost, a Dem just won a +20 Trump district in PA, there's a glimmer of sunshine on the horizon.
That is why I do get excited about a possible big blue wave, I will fully admit. Because I differentiate between Paul Ryan and Nancy Pelosi being in charge of the House. I consider the latter better than the former.
Seriously, what will you do if the big blue wave arrives? Celebrate? Shrug your shoulders because none of them measure up (according to you)? Or what? Can you really -- with a straight face -- say there will be no difference in the next two years if Ryan or Pelosi is in charge of the House?
Am I tribal in my support of Democrats? Perhaps, depending on how you define the word nowadays.
But you seem to not want to differentiate this at all. To you, it's all "big money politicians" and therefore six of one is equal to half a dozen of the other. I've actually heard such "both sides are equally bad" talk since at least the 1990s, personally, just different flavors of it over the years. That's what got us Dubya, according to many.
I don't see it that way. If Democrats are in charge, then there is a lot higher chance of good laws being passed. The possibility of a better outcome goes way up, to me.
Will Dems do everything I want? No. Will they sometimes be corporate whores? Yes. 'Twas ever thus.
I fully reserve the right to castigate Dems I don't feel are measuring up to what they should be, and indeed there's even a weekly award for them every Friday.
But they will in the meantime move things forward in a progressive fashion that Republicans simply won't even consider. I think that's beneficial to the country as a whole, even if it doesn't achieve perfection overnight.
I hate incrementalism, but sometimes it's all you've got. At some point, pragmatism does come into play. Demanding the perfect and rejecting all else is suicidal to your aims -- just ask the Tea Party hardliners in the House. Every time they block a GOP bill, it means Ryan needs Dem votes and the legislation gets a lot more Dem-friendly as a result. In essence, the Tea Partiers shoot themselves in the foot over and over again, because they also demand perfection.
I don't think that will happen vis-a-vis the Progressives and the Democratic establishment, personally. But I also feel that drawing too many (or too harsh) red lines in the sand is self-defeating.
In the recent Illinois primary, some progressives won and some didn't. I consider that a step forward, even if it didn't reach as far as I would have liked.
Here's another way to look at it. Should a politician be supported if they just limit themselves to the $2,700 limit from individual donors? I would say yes -- forgoing corporate and PAC money should be applauded. You, however, think that this is just as much "big money," and therefore they fail your purity test.
To me, such steps towards a goal deserve applause and support. You can catch more flies with honey than vinegar, in other words.
To me, anyone who even TALKS about inequality and the effects of money in politics deserves support. But, at the same time, I still believe an old adage about money in politics: it's like rainfall on an old city street. You can plug up the potholes, but the pavement's so cracked that the money's going to seep in almost no matter what you do. Improving things (more transparency, donation limits, overturning Citizens United) is a worthy cause, but the money's still going to seep in, just perhaps in different ways. Call that cynical if you will, I call it realistic.
I don't begrudge you your idealism. I used to be a lot more idealistic about all sorts of things. But I refuse to be a one-issue voter on it. There are so many other political divides to consider that it is merely one of many. I know you feel differently, and I respect that.
In any case, there's where I'm coming from, in a nutshell. Hope for the best, but plan for the worst, and if you can move things towards the better, then it's probably worth doing that in the meantime.
-CW
CW
27
Yeah, but that works both ways. If Trump were impossible to establish a baseline on, because he was ALWAYS twitchy, then it'd be impossible to rate him on any of the serious questions later on (in other words, if he had no "calm, resting" state).
Yep... exactly what I was meaning.
However, I do think you're right, he probably would fail one on Putin/Russia. I was thinking only of him taking one on his sex life.
Euwwwwwww. I. can't. even.
It's not easy to juggle a pregnant wife and a troubled child, but somehow I managed to fit in eight hours of TV a day.
~ Homer Simpson ~(_8^(I)
Kick [29] -
If we're doing non-sequitur Homer references, here is my favorite:
[TV SCREEN, previously showing The McLaughlin Group]: We interrupt this public affairs program to bring you... a football game!
HOMER SIMPSON: Yes!!!
Heh.
-CW
CW: loved [28]. Well written and reasoned.
I have nothing to add that wouldn't just rephrase points you've already made.
CW
30
If we're doing non-sequitur Homer references, here is my favorite.
Non-sequitur? Hey! Can't help myself, but that's as close to sequitur as my mind gets sometimes in the wee small hours of the morning after a long, busy day. Let me 'splain myself, though.
*brain trying to figure out what the hell I was thinking*
M'kay. So you see, 60-year-old man Trump was cheating on his pregnant wife with a porn star approximately the age of his own children {troubled child}, all whilst still managing to watch multiple hours of "the shows."
See there? It makes perfect sense. *shakes head*
Full disclosure: Drinks!
[TV SCREEN, previously showing The McLaughlin Group]: We interrupt this public affairs program to bring you... a football game!
HOMER SIMPSON: Yes!!!
Football on PBS? *LOL* Good one!
CW
28
Oh, my... but this comment is a masterpiece.
Capolavoro. :)