The Sound of Silence
In its attack on the midterm elections in California, the Trump DOJ has taken an extraordinary new step that exemplifies how far off the rails it has gone under Trump II.
I mentioned yesterday that the Trump DOJ was seeking an immediate ruling on its emergency application for a temporary restraining order to force Los Angeles County to segregate and not count certain alleged noncitizen ballots. As I noted then, the Trump DOJ request for a ruling from the court by noon yesterday came after the judge in the case had already set a hearing on the TRO application for next Tuesday.
They appeared to have settled that.
But by the end of the day yesterday, the Trump DOJ appealed what it claimed was the lack of a ruling from the judge, making the astounding assertion his “silence” amounted to a “constructive denial” of its application for a TRO.
It’s hard to convey to non-lawyers how wacky this is — on so many levels — but let’s start with the claim that the judge had been silent.
U.S. District Judge David O. Carter was assigned the case just before noon Wednesday morning. About four hours later, he granted an already-pending request from the Trump DOJ to exceed the court’s page limit for its legal memorandum in support of its TRO application. A couple of hours after that, the Trump DOJ formally filed its TRO application.
Sometime after 6:14 p.m. PT, when the the Trump DOJ filed its TRO application, Judge Carter issued an order setting a hearing on the TRO application for Tuesday, Oct. 27 at 1 p.m. ET.
At 8:57 p.m. PT, the Trump DOJ for the first time asked for an expedited ruling by noon PT on Oct. 22. By then, Judge Carter had already set a hearing for next Tuesday.
Noon yesterday came and went without any new ruling from Carter so before the end of the day, the Trump DOJ moved to appeal the case on spurious constructive denial grounds.
How the Trump DOJ construes Judge Carter setting a hearing on its TRO as “silence” is mystifying.
But it actually gets worse.
In its notice of appeal to Judge Carter, the Trump DOJ outlines the sequence of events leading up to what it deems his “constructive denial” but doesn’t even mention that he had already scheduled a hearing on the TRO. (The appeal isn’t showing up yet on the Ninth Circuit docket so I can’t confirm whether the Trump DOJ played hide the ball with the appeals court on this, too.)
There’s more to say on this, but first here’s a timeline I put together of the key filings and court orders to help orient you:
Timeline
(Derived from the court docket as it appears on Pacer; exact times from Courtlistener)
Oct. 15: Trump DOJ files its lawsuit against California
Oct. 19: Trump DOJ files a motion to exceed the page limit in its ex parte application for a TRO, which it attaches as an exhibit
Oct. 20: The case is assigned to U.S. District Judge John W. Holcomb
Oct. 21, 11:50 a.m. PT: The case is reassigned to U.S. District Judge David O. Carter, a Clinton appointed, because it’s related to an existing case he’s already hearing. (This was a win for California, which had sought the move, and a loss for the Trump DOJ, which had sought assignment to a Trump appointee overseeing a different case that it argued was more related.)
Oct. 21, 3:59 p.m. PT: Just four hours after being assigned the case, Judge Carter grants the Trump DOJ’s motion to exceed the page limit in its ex parte application for a TRO
Oct. 21, 6:14 p.m. PT: Trump DOJ formally files its ex parte application for a TRO
Oct. 21 (exact time the order was issued is unclear): Judge Carter schedules a hearing on the Trump DOJ’s ex parte application for a TRO for Tuesday, Oct. 27 at 1 p.m. PT
Oct. 21, 8:57 p.m. PT: Trump DOJ files its request for an expedited ruling on its ex parte application for a TRO by noon PT on Oct. 22
Oct. 22, 4:30 p.m. PT: Trump DOJ notifies Judge Carter that it is appealing his failure to rule on its ex parte application for a TRO by noon, claiming “the Court’s silence is a constructive denial”
Bad DOJ Lawyering All the Way Down
The Trump DOJ’s “constructive denial” argument is the most egregious, but it’s not its only questionable conduct in the case:
Five days elapsed after it filed its lawsuit and before it first sought a TRO. Under these circumstances, that delay doesn’t convey the sense of extreme urgency that the Trump DOJ is now insisting the case deserves.
It didn’t ask for an expedited ruling in its initial TRO application either (although it was arguably implied by the ex parte nature of the filing ).
It didn’t engage at all with Judge Carter’s order scheduling a hearing for next Tuesday.
It’s a helluva way to greet a judge who’s been on what is a big, national, high-profile case for all of 28 hours.
“To say this is irregular is an understatement,” writes election law expert Rick Hasen. “I’m not aware of any case where a party, much less the DOJ, sought to appeal a district court’s failure to quickly enough schedule a hearing on a TRO when a hearing had already been set.”
JUST IN …
This morning, the Trump DOJ filed a new ex parte application for a preliminary injunction (as opposed to a temporary restraining order), trying to take another bite at the apple of getting an immediate ruling from Judge Carter.
Don’t Lose the Forest for the Trees
All of the above procedural wrangling in the California case is only of note because it is part of the Trump administration’s unprecedented attack on the midterm elections. I’ve mostly tried to avoid getting down into the nitty gritty of civil procedure in this case, but the latest Trump DOJ moves are too egregious to ignore, especially given the context.
For my earlier big picture overviews of the case, you can pick from:
Oct. 14: ALERT: Trump DOJ Begins Active Election Interference in California
Oct 15: Trump DOJ Now Targeting Ballots, Not Just Voter Rolls
Oct. 16: Trump DOJ Takes Election Interference to Next Level
Oct. 20: The Trump DOJ Is Now the Greatest Threat to Free and Fair Elections
Oct. 22: Your Election Interference Fears Were 100% Justified
Trump DOJ Sues to Block Certification of Alaska Senate Election
Within a few hours of Attorney General Todd Blanche denying that he had any plan to block state’s from certifying the results of the midterms elections, his Justice Department filed a new lawsuit to block Alaska from certifying the U.S. Senate election there — one of the key races that will decide control of the upper chamber.
The Trump DOJ is jumping in before Election Day to try to salvage the re-election of Sen. Dan S. Sullivan (R), who is facing former Rep. Mary Peltola (D) and a spoiler candidacy by the similarly named Dan J. Sullivan.
“The sole purpose of his candidacy is to benefit the Peltola campaign by reducing the number of votes for Senator Sullivan,” the Trump DOJ claims in its lawsuit.
It’s not at all clear that DOJ has a proper legal basis to bring such a lawsuit, and what it’s seeking in court is disturbingly vague and open-ended: prevent Alaska election officials from certifying the results of the Senate election “pending an investigation to determine whether votes cast for Daniel J. Sullivan were meant to be cast for Senator Sullivan.”
How it would be determined that ballots were mistakenly cast for the wrong Dan Sullivan is not clear, either.
The lawsuit is signed by Stanley Woodward, Jr., the No. 3 official at DOJ.
Well, the trump/DoJ machinations in the AK and CA midterm votes certainly give a note of truism to the adage, "It ain't over 'til it's over", as they've started early and promise to keep on keeping on well after ballots have been gathered, counted, and certified.
Presumably, some of the notable Senate races will be litigated after the vote all the way to 3 Jan, 2027, and the swearing in of the new Congress.
Hey, that's what trump/DoJ promised, and it's promises kept!