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(Photo by Win McNamee/Getty Images)

Trump lawyer Alina Habba let her freak flag fly high yesterday in New York Supreme Court. In a shitshow hearing, she shouted inanities about Hillary Clinton, accused New York Attorney General Letitia James of prosecutorial misconduct, and even insisted that her client is part of a protected class.

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Her state claims were summarily dropkicked, but all is not lost! Lucky thing Habba had the forethought to file a federal suit demanding that the Northern District of New York seize jurisdiction and make Tish James stop being so mean to Donald Trump. If at first you don’t succeed, try, try again, making exactly the same argument, but louder and in a different courtroom.

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Haha, just kidding. This case is totally different, see, because in addition to shouting about prosecutorial misconduct, she’s also shouting about due process and free speech. That’s why the state docket runs to hundreds of entries over two years and you haven’t heard a peep from Trump in like ten whole minutes — because he’s been cruelly deprived of his First, Fourth and Fourteenth Amendment right to process and muzzled by “racist” prosecutors.

This week, Habba responded to the AG’s Motion to Dismiss for OMG What Are You On About, Woman. The AG argues that the case should be dismissed under all the abstention doctrines, what with it being identical in substance and parties.

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But Habba counters that the cases are totally different because … uhh, maybe it’s better to let her explain it in her own words.

Here, likewise, the State Action and the instant action deal with similarly separate issues. The State Action deals exclusively with subpoenas served by Defendant and the enforceability of same. Conversely, the instant action involves issues that are constitutional in nature, namely claims arising under the First, Fourth, and Fourteenth Amendment. In this regard, Plaintiffs are challenging the improper motive underlying Defendant’s investigation, not the merits of the investigation itself. Moreover, the facts at issue are significantly more expansive, as this action scrutinizes the complete history of Defendant’s conduct towards Plaintiffs – including the time before she took office as the Attorney General. These issues have not been considered, much less adjudicated, in the State Action, nor would they be appropriately raised in an Article 4 special proceeding.

Moreover, the actions do not seek the same relief. The State Action is a summary proceeding wherein Defendant merely seeks to force compliance with certain subpoenas that have been served on Plaintiffs. This action, in contrast, looks beyond these particular subpoenas and seeks declaratory and injunctive relief affirming that Defendant’s investigation is unconstitutional in its entirety. In other words, Plaintiffs are seeking to stop the investigation as a whole, not just quash certain subpoenas. Such a distinction in the scope of relief militates against a finding of parallelism.

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The state case is just about whether Letitia James can investigate Trump via subpoena, and the federal suit is about whether it is unconstitutional for her to investigate him at all. If you think about it, but not too hard, it makes complete sense.

But if you do think about it, you remember that the Trumps have made “Defendant’s conduct toward Plaintiffs” a central part of their argument in the state case, including things she said prior to assuming office. In point of fact, they showed up at yesterday’s hearing with a sizzle reel of clips, many of them showing James on the campaign trail, promising to be a “real pain in the ass” for Trump.

Leaving aside whether or not this issue would be “appropriately raised in an Article 4 special proceeding,” the reality is it was raised in one yesterday. And again the state court found that the investigation was legally justified and not tainted by AG James’s statements.

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“More than a year ago, at the outset of this special proceeding, this Court held that the OAG’s investigation, undertaken pursuant to New York Executive Law § 63(12) was lawful,” Justice Arthur Engoron wrote, adding that it would have been “blatant dereliction of duty” for the AG to fail to investigate allegations of rampant financial impropriety in her district. Far from being unconstitutional, that is her actual job.

As Habba’s client might say, NO PARALLELISM! NO PARALLELISM! YOU ARE THE PARALLELISM! And then he’d insult the judge which, as it happens, is exactly what he’s doing right now.

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Trump v. James [Docket via Court Listener]

Liz Dye lives in Baltimore where she writes about law and politics.

Topics

Alina Habba, Crime, Donald Trump, Government