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Wed Sep 7, 2022, 09:52 PM

Neal Katyal on Lawrence O'Donnell just now

He said, the best way to get trump's case away from this judge, is to get it transferred to DC courts. That's where any case involving the National Archives is supposed to be heard.

Sounds like the best idea to me.

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Arrow 26 replies Author Time Post
Reply Neal Katyal on Lawrence O'Donnell just now (Original post)
Bayard Sep 7 OP
tavernier Sep 7 #1
mucifer Sep 7 #2
electric_blue68 Sep 7 #3
EndlessWire Sep 7 #4
Bayard Sep 7 #5
2naSalit Sep 7 #6
onenote Sep 7 #7
pnwmom Sep 8 #11
onenote Sep 8 #13
pnwmom Sep 8 #17
onenote Sep 8 #18
ancianita Sep 8 #19
onenote Sep 8 #25
ancianita Sep 9 #26
pnwmom Sep 8 #20
onenote Sep 8 #24
kentuck Sep 7 #8
pnwmom Sep 8 #12
H2O Man Sep 8 #16
Cha Sep 7 #9
ancianita Sep 7 #10
onenote Sep 8 #15
Demsrule86 Sep 8 #21
onenote Sep 8 #22
H2O Man Sep 8 #14
maxsolomon Sep 8 #23

Response to Bayard (Original post)

Wed Sep 7, 2022, 10:01 PM

1. So who does it

And how and when?

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Response to tavernier (Reply #1)

Wed Sep 7, 2022, 10:05 PM

2. He said in another interview the way she wrote her opinion is so effed up that it opens itself

up to be transferred to a court in D.C.

That's how I understood it.

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Response to mucifer (Reply #2)

Wed Sep 7, 2022, 10:06 PM

3. 🤞🤞🤞🤞🤞

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Response to Bayard (Original post)

Wed Sep 7, 2022, 10:10 PM

4. Yep

They told her that she does not have jurisdiction here. It is mandatory that the DC Courts hear it. It's not a "may" clause, it's a "shall" clause.

I'm still angry that she announced her decision before the Government even answered.

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Response to Bayard (Original post)

Wed Sep 7, 2022, 10:12 PM

5. He didn't go into great detail

I'm sure the Justice Dept knows the procedure.

He also said the first option--an appeal--would be pretty dicey, considering most of those judges in that circuit were trump appointed. Can't remember what the second option was.

I don't see where MSNBC has it posted yet.

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Response to Bayard (Original post)

Wed Sep 7, 2022, 10:21 PM

6. Sounds to me...

Like he's been looking into it.

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Response to Bayard (Original post)

Wed Sep 7, 2022, 10:43 PM

7. Are the documents in the possession of the archives?

The provision Katyal is relying on applies when documents are in the possession of the archives and that have been ruled upon by the archivist:

44 USC 2204 (e ): The United States District Court for the District of Columbia shall have jurisdiction over any action initiated by the former President asserting that a determination made by the Archivist violates the former President's rights or privileges.

I don't believe the archives have ruled on the documents obtained in the Mar a Lago search. In fact I'm not sure whether the documents have been transferred to the archives. If they have been, arguably the archives can and should reject any assertion of executive privilege and then give the DOJ access to the documents assuming all the procedural niceties in the PRA (which involve giving notice to the incumbent and former president of a request from DOJ for access to presidential records). However, also keep in mind that, according to the Archives own reading of the PRA, if it has the documents, Trump also would be able to demand access to them under Section 2205( 3) of the PRA. To quote from the Archives letter to Trump's attorney, in which the archives properly rejected Trump's claim of executive privilege (thereby allowing the archives to give DOJ access to the documents belatedly obtained by the archives in January):

https://www.archives.gov/files/foia/wall-letter-to-evan-corcoran-re-trump-boxes-05.10.2022.pdf

"Please note that, in accordance with the PRA, 44 U.S.C. § 2205(3), the former President’s designated representatives can review the records, subject to obtaining the appropriate level of security clearance. Please contact my General Counsel, Gary M. Stern, if you would like to discuss the details of such a review, such as you proposed in your letter of May 5, 2022, particularly with respect to any unclassified materials."

Also, did Katyal indicate why DOJ didn't move for a change of venue when the case was first filed in the Southern District of Florida?

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Response to onenote (Reply #7)

Thu Sep 8, 2022, 12:18 AM

11. Yes. Biden delegated his authority to NARA to decide whether to subpoena the Trump administration

records, which by law (the Presidential Records Act) are the property of the US government's, not the President's; and are supposed to be handed over to NARA at the end of an administration.

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Response to pnwmom (Reply #11)

Thu Sep 8, 2022, 12:40 AM

13. Yes, Biden delegated authority to NARA and it exercised that authority with respect to the January

documents.

But the issue is the status of the documents seized during the search warrant. In the hearing before Cannon, the DOJ took the position that Trump's claim that he was entitled to the documents under the PRA was misplaced because, in the words of the DOJ attorney, "the procedure set out in the PRA do not apply because the records are not in NARA's possession as they should have been." In the very next sentence, the DOJ attorney references the venue provision in 2204 (3 ), basically as a way of indicating that if the documents were in the archives possession so that Trump could assert PRA-based arguments, he would have to be making them in DC court. In other words, the reason that the DOJ didn't move for a change in venue was that the DOJ has taken the position that the documents aren't in NARA's possession.

See page 25 of the transcript: https://s3.documentcloud.org/documents/22274704/trumphearingtranscript.pdf

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Response to onenote (Reply #13)

Thu Sep 8, 2022, 01:30 AM

17. It's the difference between ownership and physical possession.

The NARA legally owns all the documents but Trump had unlawfully retained physical possession of them. Just because a thief possesses some property doesn't mean he owns it.

ALSO, the records are NOW in the NARA's physical possession, after a lawfully obtained search warrant, so there is no reason that the DC court wouldn't have jurisdiction.

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Response to pnwmom (Reply #17)

Thu Sep 8, 2022, 06:53 AM

18. Why didn't DOJ move for a change of venue.

In the hearing, held just a week ago, they had the opportunity to argue the case was in the wrong court, but didn't do so. To the contrary, they suggested it was in the right court because "the records are not in NARA's possession." Even if possession has been transferred to NARA during the past week -- and that seems very unlikely -- I doubt that DOJ could, or would, demand that the case in florida now be jettisoned, particularly since it would mean they would have to concede Trump's claim that he is entitled to access the documents under 2205 (3 ).

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Response to onenote (Reply #18)

Thu Sep 8, 2022, 08:36 AM

19. Any documents owned by any branch or UW government are adjudicated solely in the DC Circuit.

The DOJ can still change its original motion and move for the change of venue. The 11th Circuit, even under Thomas, knows the law re the venue for all government documents.

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Response to ancianita (Reply #19)

Thu Sep 8, 2022, 10:35 PM

25. You can't raise venue for the first time on appeal. If you don't raise it below, its waived.

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Response to onenote (Reply #25)

Fri Sep 9, 2022, 08:39 AM

26. Cool. As long as it eventually gets there.

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Response to onenote (Reply #18)

Thu Sep 8, 2022, 11:08 AM

20. Did you read the friend of the court brief that Cannon refused to accept?

It's explained in there.

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Response to pnwmom (Reply #20)

Thu Sep 8, 2022, 10:34 PM

24. Yep. And presumably so did DOJ. Yet even in their motion for stay they don't make a Section 2204

argument. They don't suggest that the case should only have been filed with the US District Court for the District of Columbia. They don't make any venue-based argument at all.

So, I'll ask my question again: If the venue argument is such a slam dunk, why has DOJ never relied on it?

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Response to Bayard (Original post)

Wed Sep 7, 2022, 11:07 PM

8. Could it still be appealed to the Supreme Court?

Even if it goes thru the DC circuit?

And if it goes to the Supreme Court, there is no guarantee they would not rule with the same recklessness as the Florida Judge.

So, that alone would make it a gamble to appeal, would it not?

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Response to kentuck (Reply #8)

Thu Sep 8, 2022, 12:20 AM

12. And if they don't appeal, Trump's judge could delay the investigation for months or years. nt

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Response to kentuck (Reply #8)

Thu Sep 8, 2022, 01:02 AM

16. Yes.

That is an unfortunate possibility. At the same time, if Trump is indicted, prosecuted, and convicted, he would definitely appeal it up to the Supreme Court. I'm sure that qualified people at DOJ are aware of that.

I will say that the DC Circuit is widely recognized as the "second-highest," with the USSC being highest. It tends to handle for constitutional issues, and administrative law.

I also recognize the points made elsewhere on this discussion.

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Response to Bayard (Original post)

Wed Sep 7, 2022, 11:12 PM

9. TY! I've read that

Before & how would AG go about that?

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Response to Bayard (Original post)

Wed Sep 7, 2022, 11:15 PM

10. Exactly what I'm talkin' 'bout. The DC Circuit is the ONLY proper jurisdiction for all this.

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Response to ancianita (Reply #10)

Thu Sep 8, 2022, 12:48 AM

15. Unfortunately, the DOJ took the opposite position in the hearing

where it argued against Trump's PRA-based arguments on the grounds that the documents weren't in possession of the Archives. While DOJ referenced the venue provision, it didn't seek, either in its pleadings or during the argument, a change of venue. Rather, it suggested that by bringing his complaint in Florida, Trump was essentially conceding that the documents weren't in the possession of the archives and thus couldn't be making PRA-based claims.

See post #13.

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Response to onenote (Reply #15)

Thu Sep 8, 2022, 11:11 AM

21. But this ruling has changed things... they can do it now and should.

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Response to Demsrule86 (Reply #21)

Thu Sep 8, 2022, 11:29 AM

22. How exactly does the ruling change things

I don't see where the court relied on Trump's PRA arguments.

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Response to Bayard (Original post)

Thu Sep 8, 2022, 12:42 AM

14. Recommended.

I have the greatest of respect for Neal Katyal. I've heard him say this now for two days. And I put a lot of trust in his opinions.

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Response to Bayard (Original post)

Thu Sep 8, 2022, 11:39 AM

23. Kaytal says a lot of stuff.

It's rare that any of it comes to pass.

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