Getting NY Trump Conviction to Supreme Court

As the President Trump’s trial team prepares for the post-conviction phase of the proceedings in the N.Y. State trial, they should also consider directly petitioning the U.S. Supreme Court.

As the below quoted text of 28 U.S.C. §1251 states, the Supreme Court has original, but not exclusive jurisdiction, due to the nature of the parties involved.

28 U.S.C. §1251. Original jurisdiction
(a) The Supreme Court shall have original and exclusive jurisdiction of all controversies between two or more States.
(b) The Supreme Court shall have original but not exclusive jurisdiction of:
     (1) All actions or proceedings to which ambassadors, other public ministers, consuls, or vice consuls of foreign states are parties;
     (2) All controversies between the United States and a State;
     (3) All actions or proceedings by a State against the citizens of another State or against aliens. [Emphasis added].
(June 25, 1948, ch. 646, 62 Stat. 927 ; Pub. L. 95–393, §8(b), Sept. 30, 1978, 92 Stat. 810 .)

A petition could be fashioned, in the form of a petition for certiorari, as the President’s pleading to get before the Court. The all writs act statute could be used to set out and state the relief sought as the contents of the to be issued writ. See, 28 U.S.C. §1651.

There is no problem with the U.S. Constitution’s Eleventh Amendment, as the case in the Supreme Court would not be one against a state, so there is no sovereign immunity issue.

As N.Y. state is the party plaintiff in the original state court case, there is also no sovereign immunity problem under U.S. Constitution, Article III, Section 2, Clause 1.

However, an argument would need to be presented against an old precedent. In Wisconsin v. Pelican Ins. Co., 127 U.S. 265, 289-300 (1888), Wisconsin had sued a Louisiana corporation to recover a judgment rendered in its favor by one of its own courts. Relying partly upon Section 13 of the Judiciary Act of 1789, which vested the Supreme Court with exclusive jurisdiction of controversies of a civil nature where a state is a party; and partly on Justice Iredell’s dissent in Chisholm v. Georgia, the 1793 case which was the impetus for the Eleventh Amendment, Justice Gray opined for the Court that, for purposes of original jurisdiction, “controversies between a State and citizens of another State” was confined to civil suits.

The Supreme Court’s Pelican Insurance reliance on the Judiciary Act of September 24, 1789, c. 20, §13, which used the express language “controversies of a civil nature”, can be distinguished as that language no longer appears in 28 U.S.C. §1251(b)(3). It should be urged on the Supreme Court that Section 1251(b)(3)’s use of “All actions or proceedings,” clearly includes the type of case N.Y. is using against President Trump.

As the State of N.Y. is now attempting to enforce its criminal law against a citizen of the state of Florida, the extraordinary national factual context of this case clearly warrants the Supreme Court’s exercising its original jurisdiction.

Rohan Samaraweera, Esq.
Samaraweera-Law@comcast.net

---

---