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@LeahLitman @TheAtlantic Jane is such a lucid and compelling writer. Compare my more lawyerly take here:

takecareblog.com/blog/doj-s-unc…

The original sin here was that Trump settled on a legal view concocted by his personal lawyers, and then DOJ didn't have the wherewithal to push back. /1
@LeahLitman @TheAtlantic Here's how I concluded another post--it could be a coda to Jane's excellent article:

takecareblog.com/blog/how-the-d…

President Trump ... circumvented OLC here, preferring instead to take his constitutional advice from his personal attorneys at Morgan, Lewis and Bockius, ... /2
@LeahLitman @TheAtlantic ... who produced a "White Paper" that is, suffice it to say, hardly OLC-quality legal work. ... In its brief, DOJ presumably is defending a decision made by the President before any consultation with, let alone any thorough analysis by, OLC. ... /3
@LeahLitman @TheAtlantic As with so much in this Administration, that is not the way things are supposed to work. If OLC had been asked, back in January, about the President's business practices, I suspect the Office would have concluded ... /4
@LeahLitman @TheAtlantic ... that at least some of those practices put him in violation of the FEC--and would further have advised the President of certain prophylactic steps he should take to avoid any further constitutional violations, not least of which might have been ... /5
@LeahLitman @TheAtlantic ... a recommendation that the President seek congressional consent to some or all of his earnings, the remedy that has historically been proposed whenever thorny emoluments questions have been raised. Alas, that is not the path he (and his White House Counsel) chose. /6
@LeahLitman @TheAtlantic And therefore DOJ now finds itself defending the constitutionality of practices that its own experts did not have an opportunity to vet, making arguments that are in considerable tension with the mode of analysis OLC has employed in the past to evaluate emoluments questions. /7
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Marty Lederman
@marty_lederman
Wait a sec: The reason her obsessive, multi-year coverage of the so-called "campus culture wars" (hmm: "wars" on campus; "war" in the NYT) "always mattered" was that one day, years later, part of the NYT staff would be upset because @nytopinion chose to publish, ...
... from among thousands of submissions, an Op-Ed by the most belligerent member of the Senate--someone hardly lacking for fora--urging an "overwhelming" and (probably) unlawful use of military force in the midst of a public uprising to protest . . .
... police violence against African-Americans? An Op-Ed that had the audacity to invoke 1957 Little Rock as an analogy?

Boy, she sure was prescient.
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Marty Lederman
@marty_lederman
Judge Sullivan's brief to the D.C. Circuit in the Flynn case.

justsecurity.org/wp-content/upl…

@just_security
This brief doesn't really get into the most important questions relating to Flynn--namely, whether his conduct (and the President's) respecting Russia and Turkey was problematic; whether DOJ, the FBI and the IC had reason to be alarmed by, and investigate, it; and ... /2
... why AG Barr now insists that Flynn did nothing problematic and that the FBI had no basis to investigate the threat he possibly posed. For much more on all of that, see my post from last week:

justsecurity.org/70431/understa…

/3
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Marty Lederman
@marty_lederman
@kewhittington, I agree with your primary point, namely, that the Court will (& should) be less deferential if a Governor leaves restrictions in place for many months on end, w/o reassessment. But of course they won't do--and aren't doing--any such thing: /1
The Governors are adjusting the restrictions virtually weekly as the evidence and medical needs change. As Roberts wrote, it's very dynamic.

Three objections, however:

First, Kavanaugh wasn't "raising real issues." He made unfounded assertions, ... /2
... such as that there was discrimination against church gatherings, when in fact California was treating churches more favorably than most such analogous gatherings. /3
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