In an already gratuitous tangent calling for overturning a key 1st Amendment precedent that protects the free press, 85-year-old Laurence Silberman seems to have lost the filter that counsels most judges against displaying a nakedly partisan demeanor. cadc.uscourts.gov/internet/opini…
Silberman was Nixon and Ford admin official. He was a friend of Dick Cheney, who as WH chief of staff in 1975 wanted to make him the top WH domestic policy official, while Kissinger thought he should lead the CIA. (See Takeover p 49.) In 1985, Reagan made him into a judge. /2
In 1988, Silberman tried to give victory to the Reaganites' novel theories of executive power maximalism by writing an opinion striking down the independent counsel law and proclaiming the Unitary Executive Theory to be true. The Supreme Court disagreed, overruling him 7-1. /3
In 2002, on a review panel for the FISA Court, Silberman claimed that presidents can wiretap without warrants even if a criminal law says otherwise. When Stellarwind was exposed, the Bushies loved that dicta -- also essentially a WSJ oped dressed up as a judicial opinion. /4
Anyway, judges are human beings and no one thinks they lack political views just because they wear black robes, but to foster confidence in the judiciary and rule of law, most pursue an ideal of trying to keep that stuff separated from their professional/public work product. /end

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More from @charlie_savage

28 Feb
Thanks to @apcbapcb for the shoutout, in his review of @nicholsonbaker8's Baseless in @nybooks, to a point I made in my review in @thenation. But I would like to clarify something about this, for the sake of others out there who are frustrated by unsuccessful FOIA requests. /1
Baker's years of requests to liberate more information about Korean War-era bioweapons from the National Archives were largely unsuccessful. His original plan to prove what happened morphed into a book that is partly about FOIA's shortcomings. /2
In the section of my review in which I focused on his critique of the Freedom of Information Act, I pointed out a puzzling failure of imagination: Baker never filed a FOIA lawsuit. That's very often necessary to make FOIA work./3
Read 7 tweets
16 Feb
I missed that DOJ has posted the individual certificates listing what offenses Trump pardoned for each person listed in his January 19 master clemency warrant, which had names but didn't spell out the covered crimes. justice.gov/pardon/page/fi…
Here's Steve Bannon's, for example.
Here's Elliot Broidy, a Trump fund-raiser who admitted to a role in a covert campaign to influence the administration on behalf of Chinese and Malaysian interests.

nytimes.com/2020/10/20/us/…
Here's Ken Kurson, a former Giuliani speechwriter and former editor of a newspaper Jared Kushner owned, who had been charged with cyberstalking
nytimes.com/2020/10/23/nyr…
Read 10 tweets
5 Feb
I took a deeper look at the Biden WH not restoring the ABA's traditional role of pre-nomination vetting and de facto vetoing of potential judges, which the WP scooped the other day in a story about the Biden team getting geared up to make nominations. nytimes.com/2021/02/05/us/…
The ABA's pre-nomination vetting dated back to the Eisenhower administration. Its peer review system had long been a serious constraint on which lawyers politicians could transform into life-tenured judges. /2
But both parties, when in power, have chafed at that constraint. When Republicans' preferred nominees got dinged as not qualified based on temperament/ethics/competence, the GOP insisted it was instead because the ABA harbored ideological bias against conservatives./3
Read 12 tweets
13 Jan
The National Security Agency has just released an important set of rules and procedures for electronic surveillance by the DOD (of which NSA is a part)./1
int.nyt.com/data/documentt…
It is a big-deal doc but it also appears to be more a housekeeping update of the previous one rather something that makes major substantive changes, unless I’m missing something, so my current plan is to tweet for specialists rather than write a NYT article for general readers./2
These procedures govern, at a 30,000-foot level, DOD/NSA surveillance that is authorized by Executive Order 12333 because it uses techniques that fall outside the sort of national-security wiretapping that the Foreign Intelligence Surveillance Act (FISA) regulates. /3
Read 12 tweets
3 Dec 20
New/exclusive: The government has used Section 215 of the Patriot Act to collect logs of visitors to a website, according to an ODNI letter to @RonWyden. /1 nytimes.com/2020/12/03/us/…
Whether to preserve an ability to use this technique aimed at foreign web users (but necessarily risking collection of American web users) appears to map onto the Schiff-Lofgren negotiations over whether/how to narrow the Wyden-Daines amendment to the FISA bill in May. /2
FBI/ODNI disclosed that one of the 61 FISA court orders under Section 215 in 2019 involved collection of visitor logs for a particular (unnamed) web page from a foreign (unnamed) country. We don't know how often they do this, nor whether they always try to screen out Americans./3
Read 11 tweets
2 Dec 20
New legal explainer: Trump has discussed potential pardons that could test the boundaries of his constitutional power to nullify criminal liability. nytimes.com/2020/12/02/us/…
Here are some highlights, with greater explanation at the link.
1. Can Trump prospectively pardon people before they have been charged with the crime, let alone convicted of anything? Yes. (Though still after the potential offense took place.)
2. Does pardoning necessarily eliminate all risk? No.
Trump can't stop state prosecutors, who can charge financial crimes. And it could eliminate a shield that lets witnesses avoid testifying before Congress or a grand jury.
Read 8 tweets

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