Some might think that I, as a criminal defense lawyer, would take comfort in the serial failures of the Department of Justice and its United States Attorneys’ offices across the country. The flight of career prosecutors, inability to secure indictments despite the minimal threshold of probable cause, dismissal of case after case, should bring joy to my tribe, right? Except I’m also an American, a law-abiding citizen, and a human being, and crime, per se, is a bad thing. I don’t want people harmed or victims to suffer.

In the past day, two high profile things happened which were so stunningly wrong, so fundamentally, laughably incompetent, as to conclusively demonstrate that the United States Department of Justice (or Trump’s personal machinery for vanity and vengeance) is utterly incompetent. Continue reading →

Not that Jeanine Pirro couldn’t screw up anything she touched, but she looked adamant and sober when she stated, “Make no mistake, this was an attempted assassination of the President of the United States.” Her sentence then continued by directly contradicting this assertion.

The complaint charges Cole Allen with three counts (with more likely to come), the top count being 18 U.S.C. § 1751(c), attempted assassination of the president. The affidavit in support of the complaint relies entirely on a text attachment to an email Allen sent immediately beforehand, which is being called a “manifesto” to dredge up images of Karl Marx and the Unibomber. Continue reading →

Democrats have introduced numerous war powers resolutions in Congress, to no avail. They knew, or should have known, that these bills were performative and had no chance of passing, but they did so to appear to be doing something, anything, to address Trump’s war of choice in Iran. Perhaps it made them feel warm and fuzzy, but it had no effect whatsoever.

By the end of this week, however, it will be a different situation. As of this coming Friday, the War Powers Resolution of 1973 kicks in.

If the war continues through Friday without congressional approval, it will clearly be illegal, having passed the 60-day threshold and the 48-hour notice period that the president is given, under the War Powers Resolution of 1973, to conduct this kind of military operation. Continue reading →

Regardless of how many things one thinks Trump has done poorly, one thing he’s excelled at is taking advantage of his position for personal and familiar financial gain. Hey, everybody has their strengths. One example of this is his suit against the Internal Revenue Service seeking damages in the amount of $10 billion for an employee of a contractor releasing his tax return. Before the Department of Justice answered the complaint or entered an appearance, Trump moved to extend the defendants’ time “so the Parties can “engage in discussions designed to resolve the matter[.]”

Before deciding the motion, Judge Kathleen Williams in the Southern District of Florida raised a very interesting question: Did the court have jurisdiction if there was no legitimate case or controversy? The judge began with a bit of the irony presented by Trump’s suit. Continue reading →

Great Stirrup Cay in the Bahamas is a private island owned largely by the Norwegian Cruise Line family of companies. This is not as glamorous as it sounds.

Let me explain. Back in the day in Appalachia, there were things called “Company Towns.” A very nearby version of one of these towns is called Alcoa, Tennessee (named after the Aluminum Company of America—Alcoa). These towns were completely owned by one company and often paid local workers in what was referred to as “Scrip”—or currency only redeemable in company town businesses. Continue reading →

The question isn’t whether it’s a good thing, or even just fine, that ICE and CBP agents round up random people who appear to be foreigners with neither visible names nor shield numbers such that you can identify who engaged in illegal conduct. Stephen Miller thinks that’s swell, even if Gavin Newsom and others do not. The question is whether the State of California can make it a crime for federal agents to do so within its borders. The Ninth Circuit, unsurprisingly, in an opinion by Judge Mark Bennett, held it cannot.

Section 10 generally mandates the visible display of identification by law enforcement officers operating within the State. See Cal. Penal Code § 13654. It provides that any “law enforcement officer operating in California that is not uniformed . . . shall visibly display identification that includes their agency and either a name or badge number or both name and badge number when performing their enforcement duties.” Id. § 13654(a). “Law enforcement officer” is defined to include “any federal law enforcement officer.” Id. § 13654(d)(2). And “‘[e]nforcement duties’ means active and planned operations involving the arrest or detention of an individual, or deployment for crowd control purposes.” Id. § 13654(d)(1). An officer’s “willful and knowing violation of [§ 10] is punishable as a misdemeanor” under California law. Id. § 13654(c).

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Trump says so, and he is, if he says so himself, “extraordinarily brilliant.”

It’s quite possible that Trump had “no idea what the hell they were talking about in the Referendum,” although that might say more about Trump than about the referendum.

Curiously, David Bernstein found it similarly confusing. Continue reading →

In the comments to Josh Blackman’s post at VC, Molly Godiva called it “constitutional Calvinball.” Josh contrasts two shadow docket decisions to raise the question of whether, and to what extent, they create “clearly established” law for the purposes of qualified immunity.

The Supreme Court’s emergency docket ruling in Mirabelli and denial of certiorari in Foote will send conflicting signals. On the one hand, the Court blocked California’s policy on the shadow docket. On the other hand, the Court allowed a similar policy from Massachusetts to go into effect.

A question arises. Would this school district retain qualified immunity? Does Mirabelli, as an emergency docket ruling, create “clearly established” law? I know the Supreme Court has told us that emergency docket rulings are precedential. But is the law “clearly established”? Would this sort of ruling be clearly established by the Supreme Court for purposes of AEDPA?

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At Volokh Conspiracy, Stephen Sachs, the Scalia Prawf at Harvard Law School, posits a curious take on the New York Times article about the leaked memos revealing the shift in how the Supreme Court dealt with the shadow docket. The premise is that one of the writers, Adam Liptak, is a lawyer as well as journalist, such that his involvement in either obtaining the confidential memos or writing about them violates attorney disciplinary rules.

There are at least two theories under which Liptak may have violated the ethics rules.

First, Liptak may have violated Rule 8.4(f) of Professional Conduct, which provides that a “lawyer or law firm shall not * * * knowingly assist a judge or judicial officer in conduct that is a violation of applicable rules of judicial conduct or other law.” If a Supreme Court employee provided memoranda to the Times in the hope of making them public, and if Liptak assisted in that effort—both questions of fact, which would have to be answered through a careful inquiry—he may have violated this provision. Section 320, Canon 3.D.3, of the Judicial Conference’s Code of Conduct for Judicial Employees provides that a current or former judicial employee “should never disclose any confidential information received in the course of official duties except as required in the performance of such duties.” That Code doesn’t apply to “employees of the United States Supreme Court,” id. § 310.10(a), but it’s widely known that the Court has adopted similar rules that do.

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Without providing any clue how they got their hands on 16 internal Supreme Court memos, the New York Times posits that almost a week’s worth of the justices’ correspondence, from February 5th to the 9th, 2016, changed the Shadow Docket forever.

For two centuries, the court had generally handled major cases at a stately pace that encouraged care and deliberation, relying on written briefs, oral arguments and in-person discussions. The justices composed detailed opinions that explained their thinking to the public and rendered judgment only after other courts had weighed in.

But this time, the justices were sprinting to block a major presidential initiative. By a 5-to-4 vote along partisan lines, the order halted President Barack Obama’s Clean Power Plan, his signature environmental policy. They acted before any other court had addressed the plan’s lawfulness. The decision consisted of only legal boilerplate, without a word of reasoning.

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