Those cases are all, to my knowledge, cases in which the administrative proceeding can be appealed to a court. In that sense, those administrative proceedings require estoppel to be treated as it would in a court.
Those cases are all, to my knowledge, cases in which the administrative proceeding can be appealed to a court. In that sense, those administrative proceedings require estoppel to be treated as it would in a court.
Now I’m really revving up my fantasy legal thinking here:
I believe that some Senators acquitted Trump after the House impeached Trump because they relied on the Trump lawyers’ (and McConnell’s) arguments that if acquitted in the Senate that Trump could still face criminal investigation and trials, if not conviction and punishment once he left office.
So the “fantasy” comes in that at the Appellate level that once he starts trying to “have it both ways” and say he NOW is absolutely immune from investigation, prosecution, punishment that “Equity” would step in and provide the rulings against immunity by stating:
1) “You Trump waived that position at the Senate level if not also the House level that you could not even be impeached in the first place because you were absolutely immune”;
2). That you had unclean hands for enticing Senators into acquitting and come here at the appellate level with unclean hands;
3) That if we the appellate court were to buy your argument that you are absolutely immune then we would be unjustly enriching you after you misled the Senators and House and pulled a fast one on them that you were never not absolutely immune and thus could neither be impeached nor investigated, prosecuted or punished when you stopped being President.
I could go on in my zeal seeking “by hook or by crook” to find a way to hold Trump accountable for his actions, inactions, evil attempts to escape accountability, and for the failures to uphold his Oath and to support, protect and defend the Constitution, laws, Rule of Law, etc.
That could be. The fundamental harm here tho is that Trump claimed in the Senate trial that only a criminal court would have jurisdiction. A sufficient number of Senators in fact accepted this argument and acquitted him on this basis. Having secured a Senate acquittal based on this position, he is now attempting to adopt the opposite position--that only the Senate has jurisdiction and it would first have to convict before a court could have jurisdiction--and use that to obtain a dismissal of the criminal proceeding. This is about like saying in state court that only a federal court would have jurisdiction, using that to obtain a dismissal in state court, and then attempting to get a dismissal in federal court by claiming that only a state court would have jurisdiction. This is exactly the type of harm to the integrity of judicial proceedings that should lead the court to conclude that he is judicially estopped from attempting to use a contrary position to frustrate the court's jurisdiction. (There is probably a case somewhere that addresses the question of attempting to use a contrary position to frustrate jurisdiction.)
I get what the “fundamental harm” is that you are complaining of. It’s right in the middle of my report, described as “The jarring, contradictory nature of Trump’s argument ....” I just don’t think that is sufficient to create preclusive effect. In addition to the reasons I’ve already given, you raise another. Your reliance on “a sufficient number of senators” is a strange standard. Even if “a sufficient number of senators” said, “I am relying on the possibility of criminal prosecution as the explanation for my vote against conviction,” that’s akin to polling a jury. It’s informative, but are we really going to create a rule that you create preclusive effect based on unsworn statements by elected lawmakers? Seems to make the argument for preclusive effect weaker still.
The Senators are not unsworn, they are required by Article I, Section 3, Clause 6 of the Constitution to take an oath. By Senate rule, the form of that oath is: "I solemnly swear (or affirm) that in all things appertaining to the trial of the impeachment of ______, now pending, I will do impartial justice according to the Constitution and laws."
Judicial estoppel is an equitable principle, and the argument for it is strongest when the party prevailed in a prior proceeding based on a that position. The court is always going to have to make some kind of inquiry into the prior position and how material it was to the proceeding, and in this case, I think it's more than reasonable to consider the statements the Senators read into the record, just as a court might consider the statements a judge might read into the record. These statements in this case indicate that a sufficient number of Senator's voted to acquit Trump based on his position that only a criminal court would have jurisdiction.
Lol. Allen. Come off it. I did not say the senators have not taken an oath. Random statements, press releases and on TV, are in no way sworn. And, to the extent they’re more formal statement, they could be subject to the constraints of the Speech or Debate Clause, so, even less sworn than others.
Wut? Courts often cite congresspersons' statements in the congressional record when deciding cases. (And similarly, we get to hear Alexander Hamilton's thoughts in virtually every originalist opinion and paper lol)
Yes, for legislative intent. Not for the creation of a novel — and I obviously think inappropriate — rule of preclusive effect. (In any event, you’ve now driven me so far afield. This issue of the senators’ statements was an aside of an aside of an aside. Have a good night!)
ok, we'll have to see on what novel basis the court rules, cause everything in this case is novel :) (Note I'm not predicting the court will rule that Trump's immunity claim is judicially estopped, but they should :) G'nite!
Those cases are all, to my knowledge, cases in which the administrative proceeding can be appealed to a court. In that sense, those administrative proceedings require estoppel to be treated as it would in a court.
Now I’m really revving up my fantasy legal thinking here:
I believe that some Senators acquitted Trump after the House impeached Trump because they relied on the Trump lawyers’ (and McConnell’s) arguments that if acquitted in the Senate that Trump could still face criminal investigation and trials, if not conviction and punishment once he left office.
So the “fantasy” comes in that at the Appellate level that once he starts trying to “have it both ways” and say he NOW is absolutely immune from investigation, prosecution, punishment that “Equity” would step in and provide the rulings against immunity by stating:
1) “You Trump waived that position at the Senate level if not also the House level that you could not even be impeached in the first place because you were absolutely immune”;
2). That you had unclean hands for enticing Senators into acquitting and come here at the appellate level with unclean hands;
3) That if we the appellate court were to buy your argument that you are absolutely immune then we would be unjustly enriching you after you misled the Senators and House and pulled a fast one on them that you were never not absolutely immune and thus could neither be impeached nor investigated, prosecuted or punished when you stopped being President.
I could go on in my zeal seeking “by hook or by crook” to find a way to hold Trump accountable for his actions, inactions, evil attempts to escape accountability, and for the failures to uphold his Oath and to support, protect and defend the Constitution, laws, Rule of Law, etc.
You’re probably correct that it is not, technically, a binding rule or canon or doctrine. But it amply meets the stick-in your-craw standard.
That could be. The fundamental harm here tho is that Trump claimed in the Senate trial that only a criminal court would have jurisdiction. A sufficient number of Senators in fact accepted this argument and acquitted him on this basis. Having secured a Senate acquittal based on this position, he is now attempting to adopt the opposite position--that only the Senate has jurisdiction and it would first have to convict before a court could have jurisdiction--and use that to obtain a dismissal of the criminal proceeding. This is about like saying in state court that only a federal court would have jurisdiction, using that to obtain a dismissal in state court, and then attempting to get a dismissal in federal court by claiming that only a state court would have jurisdiction. This is exactly the type of harm to the integrity of judicial proceedings that should lead the court to conclude that he is judicially estopped from attempting to use a contrary position to frustrate the court's jurisdiction. (There is probably a case somewhere that addresses the question of attempting to use a contrary position to frustrate jurisdiction.)
I get what the “fundamental harm” is that you are complaining of. It’s right in the middle of my report, described as “The jarring, contradictory nature of Trump’s argument ....” I just don’t think that is sufficient to create preclusive effect. In addition to the reasons I’ve already given, you raise another. Your reliance on “a sufficient number of senators” is a strange standard. Even if “a sufficient number of senators” said, “I am relying on the possibility of criminal prosecution as the explanation for my vote against conviction,” that’s akin to polling a jury. It’s informative, but are we really going to create a rule that you create preclusive effect based on unsworn statements by elected lawmakers? Seems to make the argument for preclusive effect weaker still.
The Senators are not unsworn, they are required by Article I, Section 3, Clause 6 of the Constitution to take an oath. By Senate rule, the form of that oath is: "I solemnly swear (or affirm) that in all things appertaining to the trial of the impeachment of ______, now pending, I will do impartial justice according to the Constitution and laws."
Judicial estoppel is an equitable principle, and the argument for it is strongest when the party prevailed in a prior proceeding based on a that position. The court is always going to have to make some kind of inquiry into the prior position and how material it was to the proceeding, and in this case, I think it's more than reasonable to consider the statements the Senators read into the record, just as a court might consider the statements a judge might read into the record. These statements in this case indicate that a sufficient number of Senator's voted to acquit Trump based on his position that only a criminal court would have jurisdiction.
Lol. Allen. Come off it. I did not say the senators have not taken an oath. Random statements, press releases and on TV, are in no way sworn. And, to the extent they’re more formal statement, they could be subject to the constraints of the Speech or Debate Clause, so, even less sworn than others.
Wut? Courts often cite congresspersons' statements in the congressional record when deciding cases. (And similarly, we get to hear Alexander Hamilton's thoughts in virtually every originalist opinion and paper lol)
Yes, for legislative intent. Not for the creation of a novel — and I obviously think inappropriate — rule of preclusive effect. (In any event, you’ve now driven me so far afield. This issue of the senators’ statements was an aside of an aside of an aside. Have a good night!)
ok, we'll have to see on what novel basis the court rules, cause everything in this case is novel :) (Note I'm not predicting the court will rule that Trump's immunity claim is judicially estopped, but they should :) G'nite!