Minimum Competence - Daily Legal News Podcast
Minimum Competence
Legal News for Thurs 1/4 - Trump Colorado Appeal Implicates SCOTUS Involvement, Cohen's Lawyer Asks for Leniency for Bard-Invented Cases, and FDA Ordered to Reconsider Vapes

Legal News for Thurs 1/4 - Trump Colorado Appeal Implicates SCOTUS Involvement, Cohen's Lawyer Asks for Leniency for Bard-Invented Cases, and FDA Ordered to Reconsider Vapes

In today’s episode we have Trump’s CO appeal likely to require SCOTUS involvement, Cohen’s lawyer asks for leniency with made up cases, and FDA ordered to reconsider vape products.

A cartoon camel smoking a vape pen, pencil sketch

This Day in Legal History: Kent State Shooting Settlement

On January 4, 1979, a significant chapter in American legal and civil rights history was marked by the state of Ohio's out-of-court settlement with victims and families affected by the tragic events at Kent State University. Nearly a decade earlier, on May 4, 1970, the country was shaken by an incident where National Guardsmen opened fire during a student protest at the university, leading to the loss of lives and numerous injuries.

This day symbolizes a pivotal moment of acknowledgment and reparation by the state, as the settlement recognized the suffering and trauma endured by those involved. It served not just as a financial resolution but also as a public statement on the gravity of the events that transpired.

The Kent State shooting had been a watershed moment in the history of civil protests and government response in the United States. Students had gathered to protest against the Vietnam War, embodying the widespread sentiment and unrest of the era. The response of the National Guard, which escalated to gunfire, became a subject of intense scrutiny and debate, highlighting the complex dynamics between civil rights, governmental authority, and public safety.

The settlement of January 4, 1979, while not undoing the past, represented a form of closure for many involved. It was a reminder of the legal system's role in providing recourse and recognition to victims of such incidents. This event continues to be remembered as an essential reminder of the delicate balance between state authority and citizens' right to peaceful protest, a balance that remains ever-relevant in today's civic discourse.

Former President Donald Trump's appeal of a Colorado ruling, which barred him from the 2024 presidential ballot, may compel the U.S. Supreme Court to make a significant decision regarding his election prospects. This situation arises from Colorado and Maine's unique legal decisions, based on Trump's actions preceding the January 6, 2021, Capitol attack, to disqualify him under a constitutional clause related to insurrection or rebellion. Legal experts anticipate that the Supreme Court, with its conservative majority, including three Trump appointees, faces a critical and potentially divisive decision. The court's ruling could significantly impact U.S. democracy, as states currently hold varying standards for office eligibility.

The case hinges on the interpretation of Section 3 of the Fourteenth Amendment's disqualification clause, previously unused to deem a presidential candidate ineligible. This clause prohibits anyone who engaged in insurrection or rebellion, after taking an oath to support the U.S. Constitution, from holding office. Trump's legal team argues that this clause does not apply to U.S. presidents and that the question of presidential eligibility is for Congress to decide.

The Supreme Court's involvement in Trump's legal battles is not new. Despite his influence in appointing three justices, Trump has expressed dissatisfaction with the court for not supporting his claims, particularly regarding the 2020 election results. The court has previously sidestepped cases related to Trump's eligibility and allegations of election fraud.

This situation draws parallels with the Bush v. Gore case in 2000, though the current context is marked by greater public polarization and perceived fragility of democracy. Legal experts suggest that a unanimous or near-unanimous ruling from the court could help preserve its legitimacy, signaling that the decision transcends partisan lines. The outcome of this case is set to have profound implications on the upcoming election and the public's perception of the judiciary's role in politics.

Trump's Colorado appeal may force US Supreme Court to rule on his future | Reuters

Michael Cohen's attorney, David Schwartz, has requested a Manhattan federal judge to forgo sanctions against him for including fake case citations in court papers. These citations, mistakenly generated by the AI program Google Bard, were provided to Schwartz by Cohen, Donald Trump's former lawyer and fixer. Cohen, who is set to be a key witness against Trump in a criminal trial, admitted to inadvertently creating these fictitious citations.

Schwartz acknowledged his error and responsibility, stating he had relied too much on Cohen instead of directly communicating with another lawyer on the case, E. Dayna Perry. He believed that Perry, not Cohen, had been responsible for researching the cases. The cited cases were part of Cohen's effort to conclude his supervised release after imprisonment for campaign finance violations.

Perry, in a separate filing, countered Schwartz's claims, suggesting he had no basis to believe she was the source of the cases and criticized his attention to detail. Schwartz, who is represented by retired judges Barry Kamins and John Leventhal, refrained from responding to Perry's personal remarks. This incident comes amid a broader context where Cohen is a witness in New York Attorney General Letitia James' civil fraud case against Trump and is expected to testify in a criminal case related to Trump's alleged falsification of business records.

Michael Cohen's lawyer asks court to spare sanctions over made-up cases | Reuters

The U.S. Food and Drug Administration (FDA) has been ordered by a federal appeals court to reassess its decision to prohibit two e-cigarette liquid manufacturers from marketing their products. This ruling, a 9-5 decision from the 5th U.S. Circuit Court of Appeals in New Orleans, reverses a July 2022 verdict by a three-judge panel of the same court. The majority opinion, penned by Circuit Judge Andrew Oldham, criticized the FDA for not considering the companies' detailed marketing plans aimed at preventing youth abuse, despite previously stating the importance of such plans.

Eric Heyer, the lawyer for Triton Distribution and Vapetasia LLC, expressed satisfaction with the court's decision and urged the FDA to clarify the requirements for product approval. The FDA, which categorized e-cigarettes as tobacco products under the Tobacco Control Act in 2016, initially recognized e-cigarettes as potential aids for adult smokers transitioning from traditional cigarettes. However, it faced pressure to limit flavored e-cigarettes due to a surge in youth vaping.

Triton and Vapetasia had sought approval for products with flavors like sour grape and pink lemonade, and names such as "Jimmy The Juice Man Strawberry Astronaut" and "Suicide Bunny Bunny Season." The FDA, which had rejected over a million applications since 2021 including those from Triton and Vapetasia, found no evidence of these products benefiting adult smokers. As of November, the agency had approved only 23 e-cigarette products, all tobacco-flavored. Circuit Judge Catharina Haynes, dissenting, argued that the FDA's decision was reasonable, as the products lacked proven benefits for adults.

FDA ordered to reconsider denial of approval for vape products | Reuters

Minimum Competence - Daily Legal News Podcast
Minimum Competence
The idea is that this podcast can accompany you on your commute home and will render you minimally competent on the major legal news stories of the day. The transcript is available in the form of a newsletter at