Orin Kerr Profile picture
27 Nov, 4 tweets, 1 min read
Pitch-perfect from Judge Bibas. In the finest tradition of Article III. justsecurity.org/wp-content/upl…
And don’t miss the conclusion.
For those unaware, Judge Bibas was appointed by Trump and is a longtime Federalist Society member. And he wrote this opinion exactly the way he would have if the plaintiff had represented any other candidate.
For the inside-baseball fans, it’s also worth noting that Bibas is well-known and respected among the conservative Justices and clerks. So when this gets to SCOTUS and they read that opinion, well, that should pretty much do it. (Not that they would have touched it anyway.)

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More from @OrinKerr

25 Nov
Cool 4th Am Q raised by this new op: If a judge reviews a warrant application, and thinks the facts described may violate the 4A, should she apply the 4A, including the exclusionary rule, to decide whether to sign the warrant?

Long thread below.

drive.google.com/file/d/1c6OlGx… #N Image
Some context:

In the ordinary case, an affidavit describing probable cause will state the facts supporting probable cause. If those facts amount to probable cause, the judge will sign the warrant.
If charges follow and the defense moves to suppress, the defense can argue that the fruits of the warrant should be suppressed because of a prior 4th Amendment violation.

The Q in this case is, can the judge make that call at the warrant application stage, too, and not sign?
Read 15 tweets
18 Nov
When the govt obtains a warrant to track two suspects traveling in a car together using the GPS on one's phone, the other lacks standing to challenge the tracking. CA5, per Oldham.

Plausible result, but I have mixed views on the analysis. Thread:
ca5.uscourts.gov/opinions/pub/1… #N
The Court approaches the standing question by looking first at how the warrant was phrased. The warrant that the location of the phone was the "place to be searched," so that mostly governs. It was not D's phone, so he had no standing in that "place."
But I'm not sure how the drafting of the warrant can be relevant. 4A standing is about whether a person has rights to challenge a search that occurred, not how the govt drafted a warrant to justify the search that occurred.
Read 10 tweets
17 Nov
Over at Slate, @Dahlialithwick and @mjs_DC argue that those of us who object to @ProjectLincoln's campaign against @JonesDay are not just mistaken, but are trying to con you.

Here's a thread on why I disagree.

slate.com/news-and-polit…
"Do not let yourself be conned" by those (including me) who object to campaigns against the firms, they say: The lawyers are "suicide bombers trying to blow up democracy" who must be condemned and shamed. To disagree is to argue that lawyers should "never be held accountable."
That is true, Dahlia and Mark argue, even if the lawyers have arguments that might win in court. If judges agree with the lawsuits, that just shows that judges are in on the con. The judges and their false views of "law" are acting just as illegitimately as the lawyers.
Read 15 tweets
16 Nov
Trump's refusal to admit he lost the election is the most predictable thing in the world. Remember, he's the guy who, when asked before the *2016* election if he would accept the results as legitimate, responded that he would -- "if I win."
cnn.com/2016/10/20/pol…
And after he won the electoral college in 2016 but lost the popular vote, he insisted that he *did* win the popular vote -- but that massive fraud led to millions of illegal votes being illegally counted against him.

This is how Trump rolls, always.

For decades, Trump's reaction to defeat has always been the same: You declare victory, probably the greatest victory that ever was.
Read 4 tweets
12 Nov
I'll be posting a new article draft in a week or two about government-ordered content preservation -- when the government tells your e-mail or messaging provider to save a copy of your entire account for the govt in case the govt comes back later with a warrant to disclose it. /1
This happens to hundreds of thousands of U.S. accounts every year. The government does it all the time, with no cause. I argue in the article that preservation is a seizure that requires at least reasonable suspicion, and in most cases, probable cause. /2
A key part of the article is the first-ever public explanation of how preservation requests work. How the govt and providers think of it; how requests are made and how providers respond; how it relates to ultimate production; and why it's all secret, hidden from the user. /3
Read 5 tweets
10 Nov
I have given money to @ProjectLincoln, and supported their work, but this strikes me as a terrible idea.
It's a bad idea for two reasons, I think.

1) Going after lawyers for representing unpopular clients in unpopular legal claims has a really bad history, and tends to not go well. Our legal system needs lawyers to take on unpopular clients. Focus on the clients, not the lawyers.
I'm reminded of when conservatives went after the law firms representing terrorist suspects at Gitmo. (I was one of the conservatives who signed a counter-letter, organized by @benjaminwittes objecting to going after the lawyers.)
brookings.edu/wp-content/upl…
Read 12 tweets

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