No great surprise here. In fact, no surprise at all. The lawsuit that Orly Taitz filed last month (see “Look Who’s Back, Now Filing Lawsuits on Behalf of ‘Donard J. Trump,'” (Jan. 29, 2021)), asking a federal court in California to halt Trump’s second impeachment trial, lasted a total of eight days.
And it only lasted that long because the judge gave her a chance to amend her motion for a preliminary injunction. That delayed things by three days, but once the court got a look at the amended motion it promptly found that her client did not have standing to sue, and dismissed the case.
The reasoning was straightforward. To sue in federal court, a plaintiff must have either suffered an injury or be about to suffer one—the injury must be “actual or imminent, not conjectural or hypothetical.” It must also be likely, and not just speculative, that the court can do something to redress or prevent the injury. Otherwise, the plaintiff would basically just be asking for advice, and federal courts are only allowed to decide actual “cases or controversies.” So those are the rules. Here’s what the court held:
Plaintiff argues that the Senate impeachment trial will deprive Donald Trump’s voters of their right to vote for him in the 2024 election or future elections. This alleged injury is far too speculative to constitute an injury in fact. Plaintiff’s theory relies on at least three highly speculative possibilities which “do[ ] not satisfy the requirement that threatened injury must certainly be impending”: (1) the Senate will convict Trump by a two-thirds majority, (2) after convicting Trump, the Senate will disqualify Trump from holding federal office by a simple majority, and (3) Trump will be a candidate for public office [in] the 2024 election or in the future.
The Supreme Court has expressed “reluctance to endorse standing theories that rest on speculation about the decisions of independent actors.” Here, Plaintiff’s apparent standing theory rests on speculation about the decisions of at least 101 independent actors, the 100 members of the United States Senate and Trump. In order for Trump to be disqualified from running for public office, 67 Senators must vote to convict him, and 51 Senators must then vote to disqualify him. Furthermore, Plaintiff[ ] can only speculate as to whether Trump will run for President, or other public office, in the future. The Court is not aware of any facts, nor has Plaintiff provided any, which substantiate the assumption that Trump will seek public office in the future. Simply put, Plaintiff’s allegations fail to establish that its injury is certainly impending.Order Denying Amended Motion for Preliminary Injunction and Sua Sponte Dismissing the Action, No. SACV 21-00120-CJC (C.D. Cal. Jan. 29, 2021) (citations omitted).
The court could have gone on much longer, because there is no shortage of reasons why this lawsuit could never succeed. But one was enough.
On her website, to which I’m not linking, Taitz unsurprisingly ranted that the judge had gotten it completely wrong:
The judge ruled that Trump voters have no standing since his conviction is speculative. At issue is not whether he will be convicted for sure, at issue that the whole trial of a private individual is totally illegal and unconstitutional. The[ ] judge ignored the very [essence] of the case. I could appeal, however, it probably would cost about $1,000. If someone can fund it, I will file an appeal[.]
Well, someone is ignoring (or just not understanding) the very essence of what happened, but it isn’t the judge. The argument Taitz made in the complaint is that it’s unconstitutional for the Senate to hold an impeachment trial of someone who’s no longer in office. That argument is dubious, and so not surprisingly it was Trump’s primary defense (the facts being unhelpful to him). But that wasn’t the reason she lost. She lost because the court held that the “Defend Our Freedoms Foundation,” represented by Orly Taitz, D.D.S., J.D., and allegedly containing at least some members who are “Trump voters,” does not have standing to make that argument in federal court.
It’s almost like she’s completely missing the point.
Taitz is right that she “could appeal,” in the sense that she could create a document called “Notice of Appeal” and file it in the right place (well, eventually). But if she means that she “could appeal” and by doing so possibly win, she is not right. Not at all.
If someone will give her $1,000, though, she is willing to give it a shot. This raises an issue that I have long wondered about, namely: who is funding this lawyer/dentist’s litigation hobby? Probably the same people, or some of the same people, who funded her many lawsuits arguing that Barack Obama wasn’t a “natural born citizen,” all of which cost money to file, and all of which she lost. So if one of those people has an extra $1,000 sitting around, this case might bother the Ninth Circuit for a few days.
If so, I will make fun of that, too.