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Nov 16 • 15 tweets • 4 min read
The addition to the team of an experienced #SCOTUS advocate like Sopan Joshi is another sign of how seriously the DOJ is taking the Mar-a-Lago matter.👇
2/ Sopan Joshi is now arguing before the Eleventh Circuit in the Trump Mar-a-Lago documents case. Listen live here (via @howappealing):

bit.ly/3gw1L9C
3/ Rough paraphrase of the question that Sopan Joshi just got asked: "Is there any precedent supporting your opponent's position?"

Team Trump could have a rough time of it today.
4/ DOJ lawyer Sopan Joshi explains why Trump loses 6 ways from Sunday:

(a) No jurisdiction to enter this order
(b) Order violates separation of powers
(c) Trump didn't make required showing anyway
(d) Remedy would be suppression at criminal trial anyway
5/ Exactly. The tenor of the judges' questioning to DOJ lawyer Sopan Joshi was:

"How exactly would you like us to draft the 'YOU LOSE' order to Trump?"

"Would you like a side of fries with that?"

6/ "Overreaching" search at Mar-a-Lago: They took his golf shirts!
7/ Correction, Mr. Trusty: you are attorneys for the FORMER president.
8/ Oy. James Trusty's argument reminds me of a phrase that a partner at my old law firm taught me years ago:

"You can't make chicken salad out of chicken s**t."
9/ Chief Judge Pryor is pressing Jim Trusty: why should we treat former president Trump differently than any other litigant?

Trusty seems to concede Trump shouldn't be treated differently—which I think gives away the farm.
10/ Chief Judge Pryor: it is not the government's fault if a defendant mixes personal items with government/classified documents.
11/ Put another way:

"How in the world can we rule for Trump without royally screwing up the law of criminal procedure?"

(Answer: they can't.)

12/ And don't forget the Celine Dion photos! The FBI took his Celine Dion photos!

If you'll allow me to quote @celinedion herself, Mr. Trump:

13/ In rebuttal, DOJ lawyer Sopan Joshi points out:

(a) Trump has failed to show irreparable injury from seizure of the documents; and

(b) he's had the documents returned to him anyway (except for the classified ones).
14/ Paraphrase of question to DOJ lawyer Sopan Joshi: hasn't your opponent been changing arguments constantly?

Joshi: Yes.
15/ The Eleventh Circuit argument in the Mar-a-Lago documents case is over.

Former president Donald Trump is going to lose.

The only question, which the judges explored with DOJ lawyer Sopan Joshi, is HOW Trump should lose (i.e., how to write the order).

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More from @DavidLat

David Lat Profile picture
Nov 19
1/ I adapted my Original Jurisdiction story about Yale Law, Harvard Law, and other top law schools defecting from the U.S. News rankings for @Slate (with thanks to @rebeccaonion for the excellent editing).

bit.ly/3tHvKyj
2/ Given Slate's audience, which is broader and more diverse than Original Jurisdiction's audience of legal-industry insiders, this piece has less Yale Law School "inside baseball" (as fun as it might be), and more in the way of broader reflections.
3/ After 4 days, we're at 6 law schools out of @usnews:

- Yale (#1)
- Stanford (#2)
- Harvard (#4)
- Columbia (#4)
- Berkeley (#9)
- Georgetown (#14)
Read 24 tweets
David Lat Profile picture
May 28
1/ Katherine Magbanua was just convicted on all three counts in her retrial for the murder of Professor Dan Markel.
2/ Specifically, Magbanua was convicted of first-degree murder, conspiracy to commit murder, and solicitation of murder,
3/ My main reaction is… relief. I thought she should have been convicted back in 2019, which didn’t happen.
Read 23 tweets
David Lat Profile picture
May 26
1/ Katherine Magbanua’s testimony this afternoon in her retrial for the murder of Dan Markel did not go well for her (especially compared to the first trial).
2/ At the first trial, I think the prosecution might have been surprised by Katie Magbanua’s decision to testify—understandably so, given all the evidence against her—and so the prosecution was caught a little flat-footed.
3/ This time around, the prosecution came prepared. Sarah Dugan did a very good job at cross-examining Katie Magbanua, whose demeanor was not as good this time compared to trial #1.
Read 7 tweets
David Lat Profile picture
May 25
1/ Do you support repealing the Second Amendment?
2/ I support repealing the Second Amendment.

Why not send gun regulation back to the states—an approach that conservatives and federalists support for so many other issues (e.g., abortion)?
3/ Gun control is the quintessential issue where views will vary from state to state.

What business does it have being in the U.S. Constitution? Why shouldn't states be able to reflect the views of their citizens, free from federal constitutional constraint?
Read 28 tweets
David Lat Profile picture
May 3
1/ THREAD. Here's my "explainer" about the leaked draft #SCOTUS opinion in Dobbs, the major abortion case, which @Politico published last night.

bit.ly/3s90aZU #appellatetwitter
2/ Yes, it's a huge breach of #SCOTUS confidentiality, unlike anything I've seen in my 25 years of following and writing about the Court. (And it's a huge scoop for @alexbward and @joshgerstein of @Politico; whoever leaked to them put a lot on the line.)
3/ Please note: my post is about the leak itself, not the substance of the opinion or underlying issue of abortion.

For a reader's guide to the opinion, here's one by @EdWhelanEPPC, with page references to different sections:

bit.ly/3kA8q0N
Read 6 tweets
David Lat Profile picture
May 3
1/ I realize @ProfDBernstein is speaking tongue in cheek, but I do like how district judges sometimes share draft dispositions with the parties and let them point out factual errors, analytical issues, and the like. #SCOTUS #appellatetwitter
2/ See also @SCOTUSblog's tweet about "the ultimate crowdsourced draft dissent."

#SCOTUS
3/ Clarification: @ProfDBernstein is serious. 👇

I do think this presents some logistical challenges, including crazy lobbying after the release of initial drafts in controversial cases, but it's an interesting thought experiment.

Read 4 tweets

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