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Orin Kerr Profile picture
@OrinKerr
Jun 8 • 6 tweets • 3 min read Twitter logo Read on Twitter
A significant crim law case, Dubin v. US, is out, taking a narrow view of the Aggravated Identity Theft statute, 18 U.S.C. 1028A. Statute is limited to what is ordinarily considered identity theft; ID misuse has to be "at the crux" of the crime.
supremecourt.gov/opinions/22pdf… #N Image
Opinion per Sotomayor, unanimous as to result, with 8 Justices joining majority opinion. Gorsuch concurs in the judgment, concluding the statute is vague and that the Court's attempt to narrow it doesn't end the vagueness. Image
My pre-argument take on Dubin was here.
reason.com/volokh/2023/02…
As close as SCOTUS has come to saying they apply a rule of lenity when interpreting federal criminal statutes (which they clearly do)? ImageImage
I really like this result, although this method of interpretation seems like sensibilism more than textualism. (Sensibilism = new word for interpreting language so it reflects what would be a sensible judgment about what is a criminal enhancement.) supremecourt.gov/opinions/22pdf… Image
This is a really interesting case, and it's pretty important in the information crimes context; blogging to come.

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More from @OrinKerr

Orin Kerr Profile picture
Jun 9
The Trump indictment allegations are bananas. With that said, if Judge Cannon is presiding, I'm not sure how much the facts will matter. Based on her decisions in the litigation over the warrant, Cannon may do whatever she can to protect Trump. And there's a lot she can do.
(I hope my skepticism is unwarranted, but Cannon's decisions in the warrant case were astonishing. I find it hard to imagine a judge who would sign those opinions giving a fair shake to both sides now. But we'll see.)
Several readers point to this thread from @JoyceWhiteVance expressing very high confidence that Cannon will not preside over the case. I am not so sure.
threadreaderapp.com/thread/1667166…
Read 6 tweets
Orin Kerr Profile picture
Jun 5
Maybe the Ma-a-Lago pool-flooding story will turn into something, but the more closely I read it, the less I think that is likely.

🧵
edition.cnn.com/2023/06/05/pol…
Caveat: This a fast-moving story, and I am reacting to the initial version of what was posted at CNN. By the time you read this, there may be more facts that need to be considered. But here's my take based on the initial story.
If you read it quickly, it sounds like the pool-draining caused a flood that damaged the servers. But the story just says prosecutors asked about whether the flooding damaged the servers, and the testimony was that it didn't. Image
Read 5 tweets
Orin Kerr Profile picture
Jun 5
Officer watches video w/image below, in which suspect brings object into home, & gets warrant to search "based on my training and experience as a police officer" that object is a gun.

Judge: Um, that's a bouquet of flowers. Motion to suppress granted.
drive.google.com/file/d/13bCndn… #N Image
The case is U.S. v. Cerda in the EDNY, per Judge Gary Brown.

cc: @Anna_Lvovsky
@Anna_Lvovsky To be clear, the image was not included in the warrant application; only the officer's description was. Judge Brown then granted the motion to suppress under Franks v. Delaware, for recklessly misrepresenting what was visible in the video.

From the opinion: Image
Read 6 tweets
Orin Kerr Profile picture
May 16
Different people value intellectual diversity in legal academia differently, which is natural. But one of its benefits is that a lot of law profs write scholarship with an eye to what people around them think, using that as a proxy for what the debate is more broadly. If the...
..,people around you all think the same way, it's easy for that to seem like "the way everyone thinks," even if it's just one of many different views. Hearing a wider range of views can replicate that broader debate in ways that better recognize which premises are contested.
BTW, one of the things that makes this a hard case to make, is that, by its nature, it can be hard to see when you're surrounded by an artificially narrow set of views. If you take your clues of what reasonable opinion is by what people around you think, it's easy to hear...
Read 5 tweets
Orin Kerr Profile picture
May 11
Suspect, stopped by an officer in front of his mom's house, tosses his jacket over a fence on to his mom's property. Officer later grabs jacket and finds gun in pocket. Divided 5th Circuit: This violated the 4A, as suspect did not abandon the jacket.
ca5.uscourts.gov/opinions/pub/2… #N Image
Judge Ho, dissenting: The suspect had abandoned his jacket. Image
Notably, the majority opinion by Elrod looks for a distinct Jones/trespass test for abandonment, arguing that there was a common law abandonment test for property.

I have two thoughts on this.
Read 7 tweets
Orin Kerr Profile picture
May 11
Trump in a "town hall" is just him lying, lie after lie after lie after lie, while the host tries to interject that this is false but Trump just starts talking over her and she can't be heard and it makes no difference.
All of which I assume makes Trump opponents wonder how anyone could support him and Trump supporters think how awesome he is.
Some are asking why she isn't pinning him down. There's no way to pin him down, though, b/c he doesn't play by normal discussion rules:.He doesn't stop talking, and he just keeps lying and lying and lying and there's no way to stop him. He'll just move on to the next lie.
Read 4 tweets

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