Finally someone has posed thoughtful argument against the Petition in Bailey, et al v U.S., et al, United States Supreme Court (“SCOTUS”) docket 16-1464, the only action to seek: (1) independent investigation of the 2016 election and, (2) if Russia illegally affected the results, the election be declared void. The case was set for conference 9/ 25/17. Disclosure: I am counsel of record for Petitioners in Bailey.
Attorney Mike Dunford posted under his name (not a pseudonym), and advances arguments: the Petition is not within the original jurisdiction of SCOTUS and the argument in the Petition against the political question doctrine fails.
First, the original jurisdiction of SCOTUS, set out in the Constitution in relevant part, states: “In all cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction....” U.S. Const. Art. III, sec.2, cl.2.
This does not require an Ambassador, public Minister or Consul be a “party” because that word is applied to States in the same sentence. The verb “affect” is defined: “Most generally, to produce an effect on; to influence in some way.” Black’s Law Dictionary, 10th ed., 2014, p. 68. This definition from Black’s reflects how courts have construed this verb in matters such as interstate commerce.
Russian Ambassador Sergey Kislyak had repeated contacts with Trump campaign officials, including a 12/16, meeting with Jared Kushner at Trump Tower. Stuart, “A Who’s Who of the Trump Campaign’s Russia Connections,” Rolling Stone, 3/2/17. The report of 17 U.S. intelligence agencies described contacts between Trump campaign people and Russian officials. Whether those officials had positions recognized as on the level of “public Minister” or “Consuls” would be a matter for further inquiry.
Russian officials certainly are “affected” by allegations of collusion.
Second, the Petition addresses the political question doctrine. “A commonly-held view is that Article IV, Section 4 “implicates only non-justiciable political questions ...”
This view has its origin in Luther v. Borden, 7 How. 1, 12 L.Ed. 581 (1849) ... and has not always been accepted. In a group of cases decided before the holding of Luther ... the Court addressed the merits of the claims founded on the Guarantee Clause without any suggestion that the claims were non-justiciable.... More recently, the Court has suggested that perhaps not all claims under the Guarantee clause present non-judiciable political questions ....” New York v. United States, 505 U.S. 144, 185-86, 112 S.Ct. 2433, 120 L.Ed.2d 120 (1992) (Justice O’Connor). See also Erwin Chemerinksy, “Cases Under the Guarantee Clause Should be Justiciable”, University of Colorado Law Review, Vol. 65, p. 849.”
Citation to Supreme Court authority usually is considered strong. However, I shall address this argument of Mr. Dunford’s in my next blog.
In the meantime, thank you, Mr. Dunford, for your responses, that seem to contradict your denigration of my argument as unworthy of response. As to Orly_Licious: we conversed on the phone last spring. I took criticisms of the earlier Petition seriously. If I overlooked specific matters of which we spoke, I apologize. Likewise, I believe it appropriate on your part to acknowledge you (1) implicitly labeled me a “scammer” and a “grifter” and (2) those labels were as inappropriate as my oversight of your comments (hint: apologize)..