See this is how the govt works (& why we need a radical overhaul of the administrative state). DOJ writes it's regs on Special Counsel (the statute says it can). Regs are law. One of the regs (usually the last one) says, however, that nothing in the regs creates rights. See 👇
28 § 600.10 No creation of rights.
"The regulations in this part are not intended to, do not, and may not be relied upon to create any rights, substantive or procedural, enforceable at law or equity, by any person or entity, in any matter, civil, criminal, or administrative."
So, the govt can use its regs against you but you can't use them against it, even when it's using them specifically against you. & the regs deprive the courts of the power to say the regs ARE enforceable against the govt. It's a massive shell game & mockery of the rule of law.
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If you've been following me, you know I've been explaining how difficult - basically impossible - it is appeal any ruling short of a final judgment in criminal cases. (I'll link this to my earlier threads at the end & this one to those.)
I've explained that at this point, there are only 3 things you can do this for in criminal cases: bail reform, double jeopardy, Speech&Debate Clause immunity. So, no appeals will be entertained or successful for DJT on issues like the trial date, venue or even the 1st Amendment.
The courts just do not want piecemeal appeals in criminal cases on a bunch of issues. I said, however, that I would evaluate whether I thought there was any issue on which DJT could bring an early (lawyers call them "interlocutory") appeal.
Spaces link for tonight’s 8 pm talk with me, @shipwreckedcrew, @KurtSchlichter, & @timparlatore about issues in the “pretrial” part of Trump’s DC case.
A great piece by Professor Turley about how the DJT indictment violates the 1st Amendment.
My only quibble with it is that he implies the district court could “certify” the constitutional questions to the appellate courts, but that procedure is only available in civil cases.
This is in 28 USC 1292(b). See below. It’s for civil cases only.
The Supreme Court in Midland Asphalt, 489 US 794 (1989), said that in criminal cases the prior section, 1291, requires a final order before any appeal, unless a collateral order exception applies. Essentially, section 1292 doesn’t apply in criminal cases.
Trump J6 Case. Some are arguing DJT's lawyers should appeal the setting of the trial date or file motions to dismiss & then appeal from those to try to get to the Supreme Court for a dismissal, perhaps even before the election. This is incredibly unlikely, virtually impossible.
Appeals in federal criminal cases are governed by statute & require a final order for a defendant to appeal. The Govt can file some appeals before a final order (called an interlocutory appeal) under a different statute. That's because if the jury acquits the Gov can't appeal.
The "final order" in a criminal case is issued by the judge after the verdict (whether by judge or jury) AND sentencing. Only then can a defendant appeal. This applies to almost every decision the magistrate and trial judges make in the case. There are a handful of exceptions:
Some clarity on the First Amendment in criminal cases.
Things you say can be used against you as evidence in criminal cases.
But, the govt can’t criminalize your speech itself because the First Amendment protects you specifically from that.
Neither can the govt prosecute you for your beliefs without violating the First Amendment.
So laws that penalize “content” of some kind are almost always unconstitutional, including criminal ones.
If, however, based on your protected beliefs or speech, you take action that somehow violates the law, your beliefs or speech could potentially be used to demonstrate the motive for your conduct or the purpose for your actions. That usually doesn’t violate the First Amendment.
I’ve flagged this issue before & will be doing so again. The Supremes have consistently cut back on the kind of fraud theories Smith is using in Count 1 of the Trump indictment since the mid 2000s at least. I think it’s highly likely they don’t think the theory here is viable.
@ActualCosmos @ClimateAudit @KingMakerFT @TrustIsEarnd They think the ground has to rise to the level of a right "not to be tried" to justify the collateral exception:
"A right not to be tried in the sense relevant to the Cohen exception rests upon an explicit statutory or constitutional guarantee that trial will not occur — as in… twitter.com/i/web/status/1…
@ActualCosmos @ClimateAudit @KingMakerFT @TrustIsEarnd To make this work, Trump would need an argument that he has a statutory or constitutional right not to be tried in the first place. An argument that his trial should take place at a different time because he is a candidate for office is not going to meet the standard in Midland.