Mark R. Levin
@marklevinshow
A good friend, who is a seasoned Supreme Court litigator and all-around outstanding attorney, urges Republican state attorneys general to sue the state of New York for its lawfare against President Trump (I have written about and discussed that President Trump’s lawyers should consider seeking common law writs for reasons I won’t restate here), which would create a second and wholly independent basis for paving a path to the Supreme Court via original jurisdiction. Obviously, one cannot predict what the Supreme Court would do, but they provide the justices with the ability to decide whether to act, which they surely should. These are extraordinarily dangerous times for our republic, which requires smart and experienced appellate lawyers to seek legitimate avenues to the Supreme Court, however rare but nonetheless appropriate and serious, to help protect the Constitution and the Republic. Here is what my friend wrote:
THE STATE OF NEW YORK SHOULD BE SUED IN THE SUPREME COURT
New York prosecutors have sought and obtained civil and criminal judgments under unique New York laws against Donald Trump in New York courts before New York judges shortly before the Presidential election. Their purpose and the necessary effect of what they have done is to interfere in the forthcoming federal election by persuading voters in “swing states” not to cast ballots for “electors” who would choose Trump to be President. The legal validity of these New York judgments has been challenged, but cannot be determined before the election.
“Electors” are the individuals whose commitment and vote under the Constitution’s Twelfth Amendment will determine whether Joe Biden or Donald Trump will be our President from January 2025 until January 2029. They will be selected in all States by the voters’ choice for Biden or Trump in the election to be held on November 5, and will formally cast their votes in the “Electoral College” that will assemble on January 6, 2025.
The Supreme Court said in Burroughs v. United States, 290 U.S. 534, (1934) that even though presidential electors are not “officers or agents of the federal government,” they “exercise federal functions under, and discharge duties in virtue of authority conferred by, the Constitution of the United States.” A single State may not deliberately utilize its local laws, invoked by prosecutors, and implemented by judges who affiliate with one national party, to tilt the voting for electors in other States. Because of instant communication attributable to modern technology New York State can deliberately interfere with voting across the country. The Supreme Court in Burroughs quoted with approval the decision in Ex parte Yarbrough, 110 U.S. 651, 657 (1884), that it is proper “to secure this election [of electors] from the influence of violence, of corruption, and of fraud.”
What New York has achieved (and what it will accomplish unless the Supreme Court takes prompt remedial action) is to make this and future federal Presidential elections chaotic and unpredictable. It subjects them to aggressive attack on one candidate by a single partisan State choosing to weaponize its local laws and courts.
New York’s effort to prejudice the Presidential election is comparable to Colorado’s determination, unanimously vacated by the Supreme Court in Trump v. Anderson, 601 U.S. 100 (2024), to remove one Presidential candidate from its ballot. Colorado purported to invoke a federal constitutional provision, but it was also a one-State effort to interfere with the Presidential election.
New York’s conduct is more egregious, will cause more lasting damage, and calls more crucially for a Supreme Court remedy than what Florida’s courts did, and the Court reversed, after the 2000 Presidential election was held, but the vote count in Florida was not completed. Because this year’s election process is ongoing, a more extreme perversion of a fair and uncorrupted choice by voters can be perpetrated by New York’s sentencing decision and by enforcement of the civil judgment. Both would be based entirely on New York’s local laws and will be announced by its partisan local judges to be exploited by instant publicity across the country.
States like Texas, Florida, Tennessee, North Dakota, Utah, and others that are strongly Republican could sue New York in an Original Action in the Supreme Court under the provision of federal law that authorizes actions in the Supreme Court of controversies between States (28 U.S.C. 1251(a)). They could seek, as relief, that New York be ordered to vacate the New York judgments against Trump. This relief does not depend on any determination by the Supreme Court that either of the local New York judgments misapplies New York law (which is probable), but because the judgments were designed – and are being invoked – to corrupt the Presidential election in “swing states” like Arizona, Georgia, Michigan, North Carolina, Pennsylvania, among others. If the Court fails to intervene, New York will succeed in unraveling a national electoral process that was set in place with the birth of the Constitution and has peacefully endured through the nation’s most tumultuous and partisan periods.
The Court should also lay down a prophylactic rule to protect future Presidential elections from similar interference. It should declare that a State may not, in the year of a Presidential election, initiate any civil or criminal action that is based entirely on that State’s local law in its State courts against a Presidential candidate. The civil and criminal cases against Trump in the New York courts (or in Georgia’s local court) could be pursued and tried (if the prosecutors were still interested) after the election.
Such a rule would be critical in the 2028 election. Incumbent President Biden has not been sued or prosecuted in the local courts of deeply Republican States because he has presidential immunity. But if the 2028 election involved no incumbent, the Republican States could do what New York has done to Trump and what future Democratic prosecutors are likely to emulate in their States– prosecute and sue the opposing candidate shortly before election before a judge who will probably have similar political views and secure one or more judgments that can be publicized and may have substantial effect in “swing states.”
9:36 AM · Jun 4, 2024
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