This special master opinion is so bad it’s hard to know where to begin: 1. She says Biden hasn’t weighed in on whether docs protected by Exec Privilege. Nonsense. The archives letter (which DOJ submitted to the Judge) makes it clear current President thinks none of this ...
is privileged. Archivist says it is “not a close” question 2. Judge enjoins the entire investigation because some of the material might be subject to Executive Privilege. But Executive Priv isn’t some post-presidential privilege that allows Presidents to keep documents after ...
they leave office. At most, it simply means these are Executive documents that must be returned to the archives. It doesn’t in any way shape or form mean they can’t be used in a criminal prosecution about stolen docs...
3. She says the “reputational” harm to Trump justifies a special master. That’s insane–every crim deft has reputational harm. Are we now going to have special masters in every crim investigation?
4. She says the Special Master should screen materials for exec privilege, without ever once explaining what specific material is subject to exec priv, particularly when the incumbent President rejects the assertion. How is the Master supposed to figure that intricate Q out?
5. She says that because some tiny percentage of materials might be privileged, the entire investigation over all the materials has to stop. That’s a bazooka when one needs at most a scalpel.
6. She tries to enjoin the Exec Branch from using these materials in an investigation, but the govt has already reviewed all the materials. It makes no sense.
7. She says Trump suffers irreparable harm in interim, but the only harm she isolates is he won’t have the docs back during the investig. That’s not irreparable, he can get them back later &if they are improperly used to bring an indictment, he can move to dismiss the indictment
8. Her analysis of standing is terrible. Trump wouldn’t own these docs anyway, so why does he get a Master over them? If there is some marginal claim to some attorney client docs, that handful of material can be separately dealt with–you don’t enjoin the entire investig for that
9. Her jurisdictional analysis is similarly awful. She let Trump forum shop for a judge, instead of letting the magistrate judge evaluate these claims. The appearances here are tragic.
That’s just a few of many more problems. Frankly, any of my first year law students would have written a better opinion.
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THREAD My Thoughts on @politico story saying the Court voted to say Roe v. Wade is fully overruled.
I’ve quickly scanned the draft opinion and it appears legitimate. This means there was a preliminary vote to fully overrule Roe V Wade and that a majority of the Court agreed.
There are lots of signals the opinion is legit. The length and depth of analysis, would be very hard to fake. It says it is written by Alito and definitely sounds like him. It’s 60+ pages long.
If this is a deep fake, it would require a state actor or someone like that. I can’t imagine that.
This is big. 1/6 committee just said they have a good-faith belief that Trump committed crimes.
"The Select Committee also has a good-faith basis for concluding that the President & members of his Campaign engaged in a criminal conspiracy to defraud the US in violation of § 371"
Justice Kagan is flaying the small business lawyer Scott Keller right now. Oh my.
Her point is that the extraordinary nature of the pandemic justifies the vaccine mandate. He hasn't provided a coherent answer.
Now Chief Justice Roberts joins in on this line of questioning, piling on. Challengers are having a hard time. Still have not heard from Justices Barrett and Kavanaugh though.
My new @TheAtlantic 1/6 piece: "This investigation into high-level wrongdoing is the greatest test an AG could face.Right now,despite what he said in yesterday’s generally good speech,it is worth worrying about whether Merrick Garland is failing that test" theatlantic.com/ideas/archive/…
1. Breyer begins questioning by making critical point of importance of adhering to precedent in rare, watershed cases. Can imagine Breyer looking right at CJ as he asks this question.
2. Now Sotomayor follows up. She says Mississippi legislature enacted this law because the composition of US supreme Ct has changed. “How will the Ct survive the stench this creates.” “How will we (the Court) be able to survive?” This is as open a statement as I’ve seen in an arg
3. Chief Justice asks some difficult questions about whether viability framework was the issue in roe and Casey. Unclear where this is going, but Chief might be saying that viability isn’t impt to adhering to precedent like roe and Casey, that it was dicta and can be overruled
Justice Thomas asks first question about the meaning of a 1908 precedent. Lawyer takes a while to get to answer but eventually does, that language doesn’t control.
The Court now gives advocates 2 minutes before questioning begins. Justice Sotomayor asks second question, helping the attorney answer Justice Thomas. Now returns to his main (strong) theme: this is an evasion of enforcement of constl rights.
Now Justice Alito jumps in, asking if Texas law is as broad as lawyer (Marc Hearron) is saying — that Texas law has a narrow “standing” provision so not everyone can actually be a vigilante. Lawyer struggling again, he should be saying it has a chilling effect.