Thoughts on watching the oral argument in the Trump fraud case

When I post an article to FWIW, I generally put up a linking post on X (which you may still think of as Twitter). That's normal self-promotion, and not necessarily unhealthy.

The unhealthy part comes when I start browsing... and re-Tweeting... and liking... and bookmarking... and going into and through a myriad of rabbit holes, some of them apparently sane and informative, others obviously anything but. The really crazy ones are sometimes the most entertaining... and addicting.

Way back in 1993 Peter Steiner came up with an iconic cartoon for The New Yorker (at left) that suggested (and not for the last time) that not every Internet "expert" was what they seemed to be. And now there's 'Legal Twitter.' I don't mean to suggest that any particular account is flea-bitten... but one can sometimes get suspicious.

Lately about a gazillion Tweets have been posted about the September 26 oral arguments in the case of People of the State of NY v. Trump, No. 2023-04925. That's a link to the video of the oral argument in the preceding sentence; the YouTube video of the argument is at the end of this post.

A great many of the posts on X about the argument, many of them with clips from the argument, suggested that the New York Attorney General was 'destroyed' (or similar terms) in the argument... some suggesting that, by the end, the State was begging not to have sanctions imposed.

Um.

Actually, part of the argument concerned an appeal from sanctions against Trump's lawyers.

I know this because I watched the argument today.

I watched it because I wanted to see for myself how well or badly Trump fared in the argument.

I don't claim to be an expert on 'Legal Twitter.'

I don't have a license to practice in New York. I've never practiced in New York. I have argued a fair number of appeals, however, though only in Illinois.

And, in the course of arguing cases before an appellate bench, I developed a sense of whether I was likely to prevail... or not. (It's one of the reasons I always... well, almost always... wanted oral argument on an appeal: When I filed my last brief, whether appellee's brief, or appellant's reply, I was always convinced I had crafted a winning argument. A decision issued without argument sometimes brought with it a cruel letdown.)

I'm not saying I could always walk out of a courtroom knowing I had won or lost... well, there was one time....

*** Shimmer *** Shimmer *** Shimmer ***

How's that for special effects?

I represented the family of an immigrant from the former Yugoslavia. He came to this country in August 1998, after the repeal of the Illinois Structural Work Act. He was dead 90 days later.

He was doing rough carpentry work on a new home in Hinsdale. They were just starting to put frame of the home up on the day of my client's fatal accident; there were no internal walls yet constructed. The subfloor was in place, but no basement stairs had been installed. Instead, two large pieces of plywood covered the opening.

The plywood was nailed in place; otherwise it would have opened into the basement like a trap door. The general contractor was going to handle the installation of the basement stairs himself. He removed all the nails which had protected the opening, but hadn't moved the plywood off the opening when he was interrupted by a page. The contractor also owned a tavern in Cicero... and some men wanted to see him about the video poker machines that he had installed there. The contractor immediately dropped everything and took off. It would not do to keep those good fellows waiting in Cicero... if you know what I mean.

Concerning the condition of the jobsite that he left behind, the contractor's deposition testimony was, essentially, (1) I removed all the nails, but didn't move the plywood so that the opening could be seen; (2) I knew I'd created a dangerous situation, but I had to leave; and (3) I'm sorry I created a dangerous situation.

It was lunchtime. My man started to walk through the house to join the other workers for lunch.

He never made it. He dropped through the plywood trap door that was created by the contractor's removal of the nails, tumbling over as he fell, hitting his head on the basement floor. He never regained consciousness.

I was brought in for the appeal from the summary judgment awarded to the defendants.

That result may seem absurd the way I've laid out the facts... I hope it does... but my guy was not available to explain what happened and, in the vernacular, nobody saw nothing. Even if they did have a clear line of sight. And they did. However, nearly everyone on the job also hailed from the former Yugoslavia... there was a language barrier... and a pronounced reluctance, quite common among immigrants from former Communist countries, to talk to the police. And appellate counsel can only work with the record made in the trial court.

Still... I thought I had a case... a good case.

I don't know why the man's family came to oral argument. His widow, a couple of grown sons, some other relations... they all crowded around me after the argument was concluded, telling me what a great job I'd done.

It tore my guts out.

They did not understand how badly the argument went. The panel was not hostile or rude or anything... but, when I got up for rebuttal, the justice presiding closed his folder and pushed his chair back. He was done. And so was I.

I remember trying to break the news to the family, trying to find a way to tamp down their enthusiasm. I also remember that the decision came down in nine days.

Nine days.

*** Shimmer *** Shimmer *** Shimmer ***

Anyway, while the outcome was never as certain as it was in that case, I would typically leave oral argument with a pretty fair sense of whether I had a shot... or whether I'd been shot down. I wasn't always right, but I was usually right.

I watched the Trump appeal video to see if I could develop a sense about where the panel was going. No, I hadn't read the briefs. No, I hadn't particularly followed the trial. I certainly had not studied the record.

But, if the argument had gone the way that so many were claiming on X, I was pretty sure I'd be able to tell.

And I could not tell.

It's never a good sign when you catch your first question just as you finish identifying yourself. That happened to the New York AG here. And there's clearly some judicial discomfort about the scope of the statute in question and the amount of the damages awarded. But both sides faced pointed questions....

I guess we'll have to let the court speak for itself. When it decides to speak.

But don't take my word for it.

At this point, in this climate, I pretty much don't believe anything about anybody unless I see it for myself. See for yourself, if you have 50 minutes, and see what you think.

What does a slated judicial candidate get for $40,000?

A couple of comments to posts on Page One of the blog deserve a post of their own.

An anonymous commenter wrote:

"Chutzpah" is a Yiddish term that loosely means "shameless audacity" and on this Rosh Hashanah I can think of no better term than to describe the arrogance and imprudence of the Cook County Democratic Party.

First, the slating contribution was $30,000, then by mid-summer they raised it to $35,000, and finally by slating the party upped the contribution to a whopping $40,000. The reason for this 34% from one year to the next? Well, there was none. No explanation was offered.

Then today, the most galling e-mail was sent out by the party telling candidates that in addition to their $40,000 ... they needed to get petitions signed with 1,500 signatures!! If you got just 700 more signatures on your own, you can get on the ballot and save yourself $40,000!!

What exactly does the $40,000 get you? The party does not supply a lawyer, does not get your signatures, and does not pay for any ballot challenge you file or defend. Then on top of it, you are still shaken down by half the committeemen who invite you to attend their birthday party ... for $250, or ask you to join them for a day at the horse races ... for another $500, or invite you to attend their picnic ... for another $250, and on and on it goes. Then there are the extra charges you get from your "campaign consultant," even though you don't know what the hell she did with the first $6,000 you gave her. Then come election time, if you are in a tight race, committeemen will expect candidates to pony up more money if they want to be on that ward's palm cards, and some committeemen will tacitly imply that if you don't cough up a substantial amount of money, they will in fact offer you zero support ... that's zero with a "Z." Oh, and don't forget that there are some notorious committeemen who will also shake down the your opponent and print several sets of palm cards, just enough to make it look legit when you stop by. And there they will sit, in a back room of some ward or township party office gathering dust and mildewing.

Shanah Tovah everyone! May you be inscribed for a good year. That will be $1,500.

That comment is not just bitter, it's funny and, I think, thought-provoking. As was this subsequent comment, which read:

I echo what has been said above. I just received an invitation to Louis Arroyo's "candidates forum" and the "entrance fee" is $750!! In return, you will get to step up to a microphone with 20 other candidates and over the din of the talking guests tell them your name, bar association ratings and mention some charity work you did 17 years ago. No one will hear you or remember you. Arroyo will not know your name when you come in, will not know it when you leave, and will not remember it tomorrow. On election day, you will get nothing for your $750. [Read that last sentence again.]

The Cook County Democratic Party is also holding a fundraiser that you are expected to buy tickets to and attend within days of writing them a $40,000 check. Bigwigs from the CFL will be there, so if you don't attend you do so at your own peril. More money down the drain. It is usually around this time of the campaign when candidates begin trying to convince their kids that Dartmouth is really no better than Moraine Valley Community College.

It is all a big gamble. If you win election, or lose election, at some point you will be in a mortgage foreclosure courtroom as either the judge or the defendant.

I do disagree that the Party does nothing for the $40,000. A week before election, they will send out a mailing with a life sized photograph of Toni Preckwinkle's face on the cover, and inside will be your $40,000 thumbnail photo and name. There will be a number of candidates running for office also listed in the mailer, and most of them will not have paid anything for the mail piece which you have happily subsidized.

I believe these comments raise valid questions and I'd like to see the discussion continue.

So let me add my own two cents. Even if I can't be as amusing.

I suppose I'm being Dr. Pangloss again, but I submit that slating by the Democratic Party in Cook County (and the concomitant $40,000 pledge) buys a judicial candidate two things: (1) Credibility and (2) Access.

Kitchen table candidates can and do win judicial races -- occasionally -- particularly if the candidate is blessed with a sonorous appellation (for any Ivy Leaguers in the audience, that means 'has a good ballot name'). Or if the candidate winds up the only female in a race with three males. Or maybe vice versa.

But slating, at least countywide slating, immediately confers a mantle of credibility on a candidate: This man or woman has some serious pull. This man or woman will be a formidable opponent.

Now, in the bad old days of patronage, when no one got a city or county job without a letter from one's sponsor, frustrated applicants found that there were two types of letters -- one that got you the job and another that merely got you an interview. So it is these days with slating: Some candidates are more slated than others; we can see this in the election results in every recent election cycle. Some candidates get dumped by ward or township organizations that are supposed to be promoting them, no matter what ads they buy for the adbook or how many holes they sponsor at the golf outing.

But nobody on the outside -- meaning 99.99% of the population -- knows who's been SLATED and who's been merely slated until Election Day or shortly before. So even the candidate who's been merely semi-slated, with some major committeemen's fingers discreetly crossed, starts out with a perception of credibility.

The commenter's remarks about petitions should scare every slated candidate down to the marrow: Surely one of the major components of a candidate's credibility is the belief that his or her nominating petitions will be "bulletproof." And I certainly can't think of a slated candidate in Cook County who's been knocked off the ballot for defective petitions or insufficient signatures.

But I no longer believe it to be a fool's errand to think about challenging even a slated candidate's petitions. My belief is not based on empirical studies -- unless the MacArthur people want to throw some money my way, this judicial election watching must necessarily remain a hobby -- but I think a slated candidate would be wise to do more than the Party is apparently asking for, petition-wise, if he or she wants to be assured of "bulletproof" ballot status.

But my perception, or the Party's asking for candidates to help in circulating their own petitions, will not damage the credibility of a slated candidate unless and until one of them gets knocked off the ballot.

So $40,000, for now, at least, buys credibility.

It also buys access.

The commenters are clearly frustrated that, after coughing up $40,000, or promising to, they find they still have to pay for every imaginable event that they might wish to attend (which, if they are serious candidates, should be every imaginable event).

It's like paying to enter Six Flags and finding out that every single ride, even the merry-go-round (do they have a merry-go-round at Six Flags?), costs extra.

So $40,000 does not guarantee admission to anything -- it buys only an invitation to everything.

When I ran for judge in the mid-90s, I would go anywhere I could, see anyone I could. In a good week, I'd get out to two or three events. The slated candidates, however, can go to two or three events a night, and more on weekends, especially if they're smart enough to have, or hire, a driver.

I noticed, when I ran, that I kept running into the same people, over and over again, many of them committed to one of my opponents. In fact, many of those same people were my opponents at any event I was fortunate enough to attend (I ran in crowded races). But I could only go to events that I knew about, whether because someone (one of my opponents, perhaps) tipped me off, or the event was one of the few advertised to the general public. I was on nobody's mailing lists in those days, so I never even heard about most political events, and most of the ones I did hear about had already happened.

You might think that the act of filing petitions alone would put a candidate on at least 80 mailing lists (50 ward and 30 township organizations) -- but, even when politicians are raising money, they apparently still don't want nobody that nobody sent.

And, let me tell you, I was that nobody.

I'm sure it must be numbing for the slated candidate to run into so many of the same people, night after night, often on the same night. But it is in seeing and being seen that the slated candidate can turn the initial perception of credibility into virtual invincibility. Especially in these days of social media, where the candidate takes a few quick selfies with the host at each event, and any other worthy willing to pose, and posts them on Facebook and Twitter and whatever else the kids are into these days. Social media is like a force multiplier: Whatever buzz may be generated for a candidate who shows up at everything, paying a la carte, is magnified by posting the pictures on Facebook. Sure the other candidates and other careful observers may get tired of seeing your face 16 times a day in their 'News Feed' -- but the random 'likes' and reposts from friends, family, law partners, fellow candidates, or whatever, puts your mug on all sorts of people's screens. Half, or maybe three-quarters of the people who vote for you may not remember your name by the time they leave the polling place on Primary Day, but when they're making their mark, they mark you, Mr. or Ms. Social Media, because yours is a name they've seen before.

And you can't get that sort of exposure without being at everything (and letting the world know about it) -- and you can't find out about anything unless you're given access -- and $40,000 gets you that.

Maybe that's too high a price. But what is a better alternative? Readers, what am I missing?

What Mr. Rauner should have said to Mr. Madigan last night and other unsolicited advice to the Governor-elect

We have about 24 to 48 hours to digest the results of last night's election results before the mayoral race swings into high gear....

Photo of Mr. Rauner voting yesterday,
taken from the Glenview News website.

Bruce Rauner's own campaign workers booed during his victory speech last night when he mentioned that he had called House Speaker Michael J. Madigan and Senate President John Cullerton. The TV Talking Heads were quick to praise Mr. Rauner's gesture, unpopular as it may have been in the hotel ballroom, pointing out that Mr. Rauner, who had until that moment put Messrs. Madigan and Cullerton on a par with Beelzebub in all of his public pronouncements, will need their cooperation if he is to have any chance to accomplish anything in his gubernatorial term.

But the Talking Heads didn't speculate, at least on the channel I watched, about what Mr. Rauner may have said.

Don't you wonder?

Here's the gist of what I imagine Mr. Rauner might have said: Since I know you are bound and determined to have the General Assembly make the "temporary" 5% income tax rate permanent, could you please get this done before I'm sworn in? Yes, I know Mr. Rauner expended millions on commercials prophesying that Gov. Quinn would do just this were he to be re-elected. And Mr. Rauner swore he'd insist on the rollback -- but that was never realistic. He simply does not have the votes in the legislature to accomplish this. Messrs. Madigan and Cullerton could wait until the new year to make the 5% tax rate permanent, forcing new-Gov. Rauner to veto the plan -- he absolutely would have to -- but a veto override, though it would render Rauner an irrelevancy at the outset of his term, may not be so sure a thing, even in a supposedly veto-proof General Assembly. Legislators who barely survived tight reelection races may be understandably skittish. Were the veto of the 5% income tax rate to somehow succeed, the plutocrats who run the credit rating agencies, Mr. Rauner's natural allies, would have no choice but to further downgrade the state's already terrible bond ratings. On the other hand, if a lame duck General Assembly makes the tax rate no-longer-temporary, Mr. Rauner can fulminate to his heart's extent from the sidelines, but without necessarily incurring potentially fatal damage to his credibility.

But that's just my imagination. Mr. Rauner may not have asked. But Mr. Rauner has stated ambitions for school funding, for property tax freezes, and other things that will cost money. Putting the income tax rate back to 3%, as much as he says he wants to, would presumably deprive Mr. Rauner of the opportunity to do much of anything except cut and prune spending and services. As an experienced corporate takeover specialist, Mr. Rauner may feel he knows all there is to know about cutting and pruning. But he may find that the lessons of the private sector do not readily translate to the public sphere.

If Mr. Rauner's budget plans remain somewhat nebulous, Mr. Rauner nevertheless packs for Springfield with two fully-formed ideas, both of them stinkers.

Even last night, Mr. Rauner was plumping for his term limits plan. Actually, we have a perfectly good term limits plan in place in this country already. It's called an election. Elections don't work very well as a term limits plan in Illinois most of the time -- but the problem here is not with elections per se, the problem we have is that Speaker Madigan is such a gifted map-maker. He has redrawn legislative districts in such a way as to prevent meaningful election contests just about everywhere, maximizing the strength of the State's Democratic voters, minimizing the impact of the state's Republicans. This does not make Mr. Madigan bad or evil; he is merely taking advantage of what the current law allows him to do. Mr. Rauner's term limits plan would, if it could be enacted (which it can't), force Mr. Madigan to give up the post of House Speaker. But it would not take the map-drawing pen from Mr. Madigan's hand. A truly non-partisan map drawing commission, on the other hand, just might succeed. The recent attempt to put a constitutional amendment allowing just such a commission failed in court, but the court may have provided a road map showing how the defects in the proposal can be cured.

The other truly bad idea Mr. Rauner floats is his service tax proposal. Basically, he would extend the sales tax on tangible goods to intangible services... like attorney's fees or hospital bills. Maybe some of the big law firms could absorb such a tax -- it might require only a software tweak -- assuming that well-heeled corporate clients are still willing to pay whatever Big Law requires, but a service tax would be a disaster for small service businesses generally (and small law firms in particular). Good Lord, we have enough trouble getting clients to pay bills now -- and Mr. Rauner would have us try and collect an extra 5 or 6 or 9% for the benefit of the State? Impossible.

And, of course, a service tax, like a sales tax, is just about as regressive a tax as one can imagine. That means it impacts poor people far more harshly than rich folks. If Mr. Rauner wishes to buy a new Timex to replace the one he wore out in his commercials, the sales tax on that item is a negligible portion of his vast income. But the poor person who buys the same watch pays a far greater share of his income as sales tax even though he pays the same sales tax as does Mr. Rauner.

Please, Mr. Rauner, drop this talk of term limits and service taxes.

Wait -- I thought Mayor Emanuel said we needed speed cameras because pedestrians in Chicago are in such mortal peril

In today's Chicago Sun-Times Rosalind Rossi reports that Chicago is among the safest cities for pedestrians, ranking no. 45 out of 51 metropolitan areas in a Smart Growth America survey of pedestrians killed per 100,000 residents in traffic accidents between 2008 and 2012.

(Finally! A survey where it's good to be down near the bottom!)

So that's good news for a change.

Still, I'm confused. Didn't Mayor Emanuel tell us that we need speed cameras because our streets are so dangerous?

City Council to adopt partial plastic bag ban this week?

This is the plastic bag recycling bin at the south entrance to the Jewel-Osco at Harlem and Foster on Chicago's Northwest Side.

The Chicago City Council is expected to vote Wednesday on an ordinance that would prohibit this Jewel store and other chain grocery stores in the City from giving out plastic bags to their customers after August 2015. A "compromise" worked out with the ordinance's sponsors will give smaller retailers (stores with under 10,000 square feet of space unless part of a chain of three or more stores) a reprieve from the ban until August 2016. The Chicago Sun-Times Politics Early & Often site provided the text of the proposed ordinance:

Plastic bag ordinance

Retailers subject to the ordinance would be required to provide paper, cloth or "compostable" plastic bags that meet specified standards of biodegradability.

This is touted as a great environmental victory instead of just another regressive tax. It might be beneficial to the environment if the use of plastic bags would really be eliminated, but the proposed ordinance is also a regressive tax.

Bags are not free. I had a post on Page One back in 2011 that looked at the differences between the costs of paper and plastic bags. Paper bags cost significantly more than plastic ones; that's why grocers started using plastic. If this new 'environmental' ordinance passes, the costs of switching back to paper or using "compostable" plastic bags will be passed along to consumers. More well-to-do consumers may already be using cloth or other reusable bags (that they pay for). But, under the proposed ordinance, everyone will have to buy them, or pay increased costs at check-out to cover the costs of new bags. This will raise prices for rich and poor alike. It is for this reason that this new tax, like the sales tax, is regressive.

And the plastic bags have their uses. For example, dog owners will still have to have something to dispose of what dogs do, only now they will have to pay for their doggie-doo bags. It would be best, of course, if the dog owners used "compostable" bags, but the ordinance won't guarantee that.

Plastic bags are also helpful when carrying meat home from the grocer, even in enviornmentally-sound cloth bags. If blood from fresh meat contaminates those cloth bags and the bag owners don't launder them properly, what sort of public health concerns will that create? The ordinance doesn't consider that either.

The environmental benefits of the ordinance were touted by Ald. George Cardenas (12th), who chairs the Health and Environmental Protection Committee. He was quoted in a recent post on the CBS2 Local site. Cardenas said said plastic bags by the hundreds and thousands litter city streets in many wards.

“You see litter, and you see plastic, and you see plastic bags. That’s what you see,” he said. “And we clean it up on a daily basis. Every week we have a task force from the Streets and Sanitation [Department] to go out and clean.”

But that's why they have bins like the one pictured above, at my local Jewel, so people can recycle the plastic bags, not let them blow away in the breeze. We just passed the 44th anniversary of Earth Day. Weren't we supposed to have eradicated litter bugs by now? Wouldn't the truly "green" solution be to encourage recycling?

And it's quite interesting to note that, despite the concerns of aldermen that plastic bags are winding up as litter, the City of Chicago does not even accept plastic bags for recycling. Chicago residents finally have their blue bins -- but plastic bags are not permitted in those bins (from the City of Chicago website, highlighting supplied):

Will my local Jewel still collect plastic bags when it can no longer issue them? Will anyone?

I don't know if the ordinance will really kill jobs, as some of the more strident critics charge. It will presumably give a price advantage to stores just outside the City limits -- bad news for my local Jewel, located just inside the City boundaries. The bag ordinance is a regressive tax, hurting poor people more than rich ones, and yet not contributing one thin dime to the City coffers for the benefit of either rich or poor. Instead of a ban, the environment might be a lot better served if people would just pick up after themselves and use the recycling bins already at their local groceries.

I hope the City Council will again reject this proposal. I'm not, however, holding my breath.