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PaperclipPerfector  3mo ago (text post)   25679 thread views

Culture War Roundup for the week of August 18, 2025

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Is it because she didn’t carry the burden, or is it because the “divided court” somehow ruins a retrial? I don’t understand why that isn’t an option.

I think only Friedman found a case-wide failure to carry the burden of proof; the rest of the judges mostly focus on the burden of proof for disgorgement aka the high fines.

In New York, as in most other jurisdictions, appeals courts can only overturn an action from a lower court with a full majority of the appeals court judges. Here, there's a majority (5/5) on the fines and sanctions, and division on everything else, and it's not even clear that Higgitt and Rosado want a retrial here so much as think it would be appropriate in a non-Trump case.

Beyond that, there's also just a lot of issues with this specific case getting a retrial -- Higgitt/Rosado might have settled for a dissental because they couldn't get a third signing onto a retrial, but they might have not really wanted a retrial in this case and only argued it for others in the future. Everyone else gives a different reason why they don't want a retrial. From the Moulton/Renwick:

Returning this action to Supreme Court for a new trial as urged by Justice Higgitt is both unnecessary and likely terminal. It is difficult to imagine that a trial could proceed while one of the principal defendants, and a central witness, is President of the United States. The inevitable elapse of time and the attendant difficulties in recreating a vast record of testimony and documents — an exercise that is both Sisyphean and unneeded, because an extensive trial record already exists — would likely consign this meritorious case to oblivion.

From Friedman:

First, I do not believe that we can ignore the fact that ordering a new trial of a case in which the primary defendant and witness is the sitting president of the United States (and will remain so for approximately another 3½ years) would disrupt the political life of the United States and would undermine its national interest, particularly at a time of high global tension, with ongoing conflicts in Europe and the Middle East.[FN3] Second, while it is obvious from the divergence of opinions among the justices of this panel that this case calls out for further appellate review, an order by this Court directing a retrial is not immediately appealable to the Court of Appeals unless the appellant stipulates to be bound by the prior judgment in the event his further appeal is unsuccessful (CPLR 5601[c], 5602[b][1]; see Trezza v Metropolitan Transp. Auth., 23 NY3d 1011, 1011 [2014]; Maynard v Greenberg, 82 NY2d 913, 914-915 [1994]). It seems inconceivable that defendants would stipulate to a judgment carrying a half-billion dollar award against them.[FN4] Finally, even if Justice Higgitt is correct that neither side should have been granted summary judgment on their dueling pretrial motions, I agree with Justice Moulton that the record before us — more than 100 volumes, comprising nearly 50,000 pages — is more than sufficient to decide the case without holding another trial.

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