Akiva Cohen Profile picture
Sep 21, 2022 28 tweets 9 min read Read on X
Hey, #LitigationDisasterTourists - at about 11pm last night, the US filed its 11th Circuit response on its motion to stay.

As Zuma would put it, let's dive in

(Yeah, I've got little kids, and that show's watchable. It is what it is)
This is how you open a reply brief:

Reset the factual situation
We showed XYZ
Their opp does nothing.

And it hammers the key point: When push comes to shove, Trump has no substantive argument - so much so that they never even really tried pretending otherwise Image
Then immediately onto Schrodinger's Declassification, making the point that (1) he hasn't actually said he did that, so it can't be a basis to grant relief and (2) even if he'd done it, it wouldn't change the analysis Image
I wish they had made the point about the *markings* being all that matter at this stage, though
If the 11th Circuit denies a stay, it'll be on the basis that the decision doesn't truly harm the government. So this section of the brief will be key Image
1) I'm surprised they didn't drop a footnote here about Trump's claims in the opposition that the SM review of docs marked classified was needed *specifically* to "superintend the government's criminal investigation" Image
As for the red, it's always good to remind an appellate court that "affirming the district court" here will *also* be read as a level of condemnation for the court that issued the warrant. Not that it should matter - but it does.
Guys, guys, you need to do better than this ImageImage
Yes, great job driving home that he hasn't claimed he designated classified records as personal, or that they belong to him.

But the answer on Judicial Watch isn't "well, in that case the records HAD been designated as personal" - it's "even Judicial Watch held, citing Anderson
that a President DOES NOT have unfettered discretion to classify clearly public records as 'personal'. And they make no argument here that if Trump HAD waived his magic wand and said 'I declare this national security information my personal document' that wouldn't survive review"
"So 1) he hasn't actually claimed he designated any documents with classification markings 'personal records' and 2) even if he made that claim, he'd STILL have zero likelihood of success given the statutory criteria"
And yes, that's what they're shorthanding by citing the statute. But you can't leave that point in shorthand and you can't fail to cite the DC Circuit's holding (as the circuit with exclusive jurisdiction over this stuff) that yes, "I classify these as personal" CAN be challenged
All of this, on the other hand. Though I'd have framed the "you didn't follow the PRA" point a bit differently: "by relying on a right of access under the PRA, Trump is conceding that these documents belong in the government's possession - which means he can't have a 41(g) claim" Image
This paragraph should have ended with "In fact, Trump does not even bother to argue otherwise" Image
Short, sweet, and to the point: y'all can just toss "attorney-client privilege" from your consideration of this issue, we all agree it's not involved at all Image
So that leaves executive privilege, and, well ... Trump just didn't say anything at all in response to our arguments on that.

Again, I would have done something slightly different here: "more, that concedes we're right as to the [X number of] docs without handwritten notes" ImageImage
We get to the substantive "no, whether it's 'still classified' doesn't matter" section, and they devoted appropriate amounts of space to it ImageImage
But I also would have spilled a little bit of ink on "the subpoena asked for all documents bearing classification markings, so 'I declassified these documents that bear classification markings' wouldn't mean anything"
Sorry, that second image should've been Image
This is a good, inside-Appellate-procedure response to the jurisdictional objection we didn't look at in Trump's filing: once the court has jurisdiction over a district court order, it has jurisdiction over the *entire* order, not just the part that allowed immediate review ImageImage
This is a long wait for irreparable harm, but here we are ImageImage
Trump argued the harm was "hypothetical" - government's response: yeah, because we can't do the things we'd need to do to confirm one way or the other, which is the problem Image
The highlighted part here, particularly the first portion of it, ought to terrify Trump.

A good part of his hopes of avoiding indictment is the "won't pursuing him make the disclosures worse" problem. Image
The government here is basically saying "yeah, we've thought about it and we've got plans to address that issue."
Last substantive bit, and I'm surprised they don't have any legal citations here.

/fin Image

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More from @AkivaMCohen

Jun 30, 2023
OK, time to get myself ratioed.

The SCOTUS affirmative action decision was legally wrong - poorly reasoned and legally silly. But in the long run, and if it spurs schools to use socioeconomic status and opportunity as the finger on the scales, it will be a net positive
Race is a blunt instrument, and I think we *all* agree that, for example, Willow Smith doesn't need or warrant any sort of bump on her college application. But Willow Smith is a WILD outlier and "but what about [insert rare exception]" isn't a useful policy framework
So yeah, it was perfectly reasonable for universities to use that blunt instrument.

As many of these university reaction statements are making clear, the burden will now be to find finer instruments that allow for the same intended benefit of taking into account the very real
Read 7 tweets
Jun 9, 2023
This thread from Yesh is a good example of a philosophical mistake I like to call "solutionism" - the belief that if a problem is bad enough then there must be a solution out there to resolve it, because "yeah, it sucks, it can't be solved for" is too unthinkable to bear
You see it a lot in the context of Israel/Palestine, with people convinced that the right mixture of fairy dust & button pushing can lead to a peaceful resolution that addresses all of the important and competing imperatives, it's just that nobody has found the right mixture yet
And we're seeing it with "a large portion of the population is willing to believe any prosecution of crimes by Trump is political"

Yes, that sucks. Yes, that's a potentially society-destroying problem.

No, there isn't a solution
Read 8 tweets
Jun 9, 2023
@yesh222 You don't worry about that, because it's not a solveable problem. You keep doing the right thing and hope that convictions and mounting evidence prevents more people from joining the conspiracy theorists, but that's all you can do
@yesh222 I said this 4 years ago, and it's proven true in every particular.

Read 4 tweets
May 19, 2023
That she was the one stealing the bike.

Literally nothing she did on the video is consistent with her new story. When her colleague came over and the kids said "that's his bike, he already paid for it" she didn't deny it, or look surprised by the claim.
Like ... how do you determine truth in a they-said-she-said situation? Watch human behavior. Throughout the video, the kids' tone is exactly what you'd expect for someone who believes their own story. Hers very much is not
And when her colleague comes and suggests that the kids get another bike, and they say "no, he paid for that bike, he unlocked it, it's his" there's exactly no reaction of "no, *I* paid for it" or "what the hell", which is what you'd expect if they were lying
Read 4 tweets
May 9, 2023
Hey, Twitter, and especially my #LitigationDisasterTourists, gather round. B/cwhile DM is focusing in on the court finding that selling videogame cheats is criminal copyright infringement and RICO, I'd like to tell you about something different. The CFAA, and @KathrynTewson
And don't get me wrong - that RICO stuff is big news that should be sending shockwaves through the cheat software industry. Cheatmakers often use resellers. Being found liable on a RICO violation means that every reseller could potentially be liable for 100% of the damage caused
by the cheat software.

And by 100%, of course, I mean 300%, since RICO comes with treble damages. Plus attorneys' fees. So that's a big deal.

As is the finding that it's criminal copyright infringement. Those are both new precedents in the area, and that's huge.
Read 21 tweets
Mar 8, 2023
I'm not inclined to forgive antisemitism, but this is more a learning opportunity than a defenestration opportunity. There are people who still legitimately don't understand that "Jew down" or "gyp" are slurs; it's just a phrase they've grown up around and use w/o thought
And yes, he doubled down when called out on it. That's almost always going to happen when someone who sincerely doesn't believe they're doing anything bigoted is called out for it in a public setting.

The real test will be whether he can learn (& apologize) as he gets more info
Also, HOLY FUCKING SHIT @pnj, you couldn't find an *actual* Jew to get a quote from, so you decided to go to a Christian LARPing as a Jew for missionizing purposes? What the absolute fuck? pnj.com/story/news/loc…
Read 4 tweets

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