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Monday, December 20, 2021

Trump tries to fight Younger again

Donald Trump filed suit in federal court against New York AG Letitia James, seeking to enjoin James from continuing with the state investigation of him and the Trump Organization. He supported the pleading with an unhinged rant. The suit has everyone reviewing their notes on Younger abstention. George Conway read Trump's rant as an attempt to invoke the "plaintiff-is-cuckoo-for-Cocoa-Puffs" exception to Younger.

This is not the first time Trump has run to federal district court to avoid a state investigation or that he has had to tangle with Younger. He did the same thing against Manhattan DA Cy Vance's subpoenas seeking Trump's tax returns. The district court abstained, rejecting arguments about bad faith and presidential immunity. But the Second Circuit reversed on that (while affirming on the merits, which SCOTUS then affirmed). The Second Circuit held that Younger's core justification is avoiding friction between state and federal governments, but that friction is present in actions involving state proceedings against federal actors, thus the avoiding-friction rationale does not push the federal court towards abstention.

It was a nonsense basis for avoiding abstention. But whatever its merits, it does not apply to a former President hoping to avoid conduct unrelated to his office. Trump's best shot is bad faith (which the complaint and the rant set-up), but I doubt a court will find that it would be impossible to obtain a valid investigation or conviction. And that a prosecutor is a political rival of the target, without more, should not establish harassment.

Trump's Younger problems mirror a point in a Guardian article about Trump's increasing anxiety over the January 6 investigation--"The trouble for Trump – and part of the source of his frustration, the sources said – is his inability, out of office, to wield the far-reaching power of the executive branch." His position within the executive branch and holding federal power helped him avoid Younger the first time; it is not available now.

Posted by Howard Wasserman on December 20, 2021 at 06:06 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink

Comments

Well, TP's only goal is delay. And on that metric, he seems to succeed most of the time.

Posted by: kotodama | Dec 20, 2021 6:18:15 PM

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