1/Prediction: The interpretation of a criminal statute used to convict hundreds of J6 rioters, 18 U.S.C. 1512(c)(2), won't survive appellate review. The Sup Court—which interprets statutes like this narrowly—will eventually interpret 1512(c)(2) in this way.
2/ To get a flavor why, listen to the oral argument in this DC Circuit case. lawfareblog.com/dc-circuit-hol… (Oral argument here. cadc.uscourts.gov/recordings/rec…). The government didn’t have great answers to two judges’ concerns about “corruptly” in the statute.
3/ I’m *not* saying this DC Circuit panel will throw out this conviction, since the “corruptly” arguments are not squarely presented. And I think it will take a while for the issue to reach the Supreme Court.
4/ But it’ll be weird or worse if the Supreme Court throws out hundreds of J6 convictions years from now.
5/ Section 1512(c)(2) is often invoked as the main law that Trump allegedly violated on J6. govinfo.gov/content/pkg/GP… It is even harder to apply that statute to him than to the people who breached the capitol.
1/ I wrote here about how the special counsel system is not well-suited to the task of investigating Biden and Trump—and now possibly Pence—for mishandling classified information. nytimes.com/2023/01/24/opi…. But the real problem is the broken classified information system. Thread.
2/ A well known problem is massive overclassification. Too many things are made secret that shouldnt be, and secrecy lasts too long. Pathologies follow: excessive leaks, corrupt manipulation of secrets, things hidden from the American people that shouldnt be, bad governance, etc
3/ A related problem is the amazing degree of abuse of classified info rules at the top: Biden, Trump, Pence, Clinton, Gonzales, Petraeus, Berger, Deutch. I am prob leaving well-known cases out, and these are ones we know about it. Surely there is much more abuse at the top.
2/ It is hard to exaggerate how outside the box this episode is. There have been disputes in discrete contexts about Prez Records Act compliance and whether and how POTUS or VP declassified a document or program.
3/ But there’s been nothing I know of like this—especially Trump’s persistent “lack of respect for the strict rules for [classified] document handling,” washingtonpost.com/national-secur…, and
It's not just "that a Democratic president cannot deter a Democratic House speaker from engaging in a diplomatic maneuver that his entire national security team — from the C.I.A. director to the chairman of the Joint Chiefs — deemed unwise." nytimes.com/2022/08/01/opi…
@tomfriedman focuses on Biden's fear of asking Pelosi not to go. But is the executive branch facilitating the congressional visit, as it usually does?
Typically, DOD "reserves available military aircraft for transportation, while [State Department] ... works with local embassy staff to arrange accommodations and other logistical assistance," & "local embassy staff also play an important supporting role" repository.law.umich.edu/cgi/viewconten…
Three more terrific papers in the @HooverInst Aegis series on the (understudied) topic of government access to marketplace data as a tool for circumventing the 4th Amendment.
First, @elizabeth_joh on the rise of “gig surveillance work,” and an analysis of its legal and policy implications, esp. for government reliance on the private information market. hoover.org/research/gig-s…
Second, @OrinKerr argues that 4th Am. today permits govt to buy biz records w/o a warrant, but “a sea change in how often govt can buy records to conduct detailed surveillance might someday justify a more restrictive approach” under equilibrium-adjustment.hoover.org/research/buyin…
The Biden administration screwed up badly. But this analysis is wrong. Sup Ct did NOT "rule[] that the CDC had 'exceeded its existing statutory authority' and was obliged to stop." The Court *declined* to make CDC stop. One Justice, Kavanaugh, said this. nationalreview.com/2021/08/bidens…
It is an interesting case because Kavanaugh declined to lift the stay but made clear that he thought CDC acted unlawfully. It is likely that the Court would strike down the moratorium or its successor. But there has been no Supreme Court ruling on the merits yet.
All sorts of interesting issues, including: (1) de facto merits ruling via shadow docket; (2) can/should DOJ defend Prez order when it is highly confident Court will say no;
One wonders how much the word "directly" is doing in this Biden statement: “How would it be if the U.S. were viewed by the rest of the world as interfering with the elections directly of other countries? What would it be like if we engaged in activities that he's engaged in?"
It is clear, and not controversial, that the US engaged in various forms of electoral interference (including vote-rigging) during the Cold War. Two good books on this: Dov Levin, Meddling in the Ballot Box, and David Shimer, Rigged.
It's also pretty clear from the public record (see Shimer) that foreign electoral interference and planning of some sort continued into the 2000s. My summary (from project-syndicate.org/commentary/doe…):