Roger Parloff Profile picture
Jul 18, 2024 17 tweets 4 min read Read on X
Please allow me one more thread on the immunity ruling. The substantial wrench SCOTUS has thrown in the NY case against Trump comes solely from one passage in the decision, section III-C, and it relies on a weird, inexplicable detour in CJ Roberts’ reasoning. ...
1/17
... Until III-C, the ruling is based on separation of powers arguments & its policy goal is to ensure that presidents can act “without undue caution” & “free from undue pressures & distortions.” But in III-C, Roberts suddenly veers off course into a discussion of jury bias ...
/2
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... Until then, remember, his ruling only erects limits on prosecutions for *official* acts.” If he’d stopped there, the ruling would have had had no impact on Trump’s NY convictions, which are for purely unofficial acts. ...
/3
... But in III-C, Roberts turns to whether prosecutors can present official acts as proof of crimes involving unofficial acts. NY prosecutors *did* introduce some such evidence. And this is where Roberts’ reasoning gets so tortured that he loses Justice Barrett (below). ...
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... Roberts suddenly raises the specter that, if jurors hear about an official act, even while adjudicating crimes relating to*unofficial* acts, they’ll run a “unique risk” of becoming “prejudiced by their views of the president’s policies and performance while in office.” ...
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... Legally, this is beyond strange. 1st, I don’t remember any briefing on this issue. 2d, I don’t think it came up at oral argument. 3d, it has nothing to do with separation of powers. 4th, it has nothing to do with assuring “undistorted” presidential decisionmaking. ...
/6
... 5th, the criminal justice system has many ways to fight jury bias,
beginning with elaborate jury selection processes. 6th—& as Justice Barrett observes below, in rejecting Section III-C —judges can exclude any piece of evidence if they think it’s unduly prejudicial. ...
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Yet Roberts, with 4 brethren signing on, says that neither jury selection nor evidentiary rules work for ex-presidents with respect to this one narrow category of evidence: official acts. Where does this notion come from? And where does it leave us? ...
/8
... The notion is also psychologically strange. Roberts seems to theorize that a juror’s potential political bias against an ex-president will be manageable so long as the proof involves unofficial acts, yet will spiral out of control if an official act is mentioned. ...
/9
... That makes no sense. In the NY case, for instance, potential jurors were vetted extensively about their views of Trump & politics. Roberts theorizes, tho, that they can only listen fairly to Stormy Daniels; they'll become too biased if they hear from Hope Hicks! ...
/10
... And it’s actually weirder than that. The theory seems to be that the jury can remain fair hearing Hope Hicks describe events from 2016 (during the campaign) but will become too biased if they hear her describe events that occurred in 2018 (when Trump was president). ...
/11
Voir dire either works or it doesn’t. If you think it won’t work for ex-presidents then, logically, you’d also have to bar trying presidents for unofficial acts. But that would make presidents unambiguously above the law & Roberts doesn't want to admit he's doing that. ...
/12
... So he makes this illogical compromise with himself. He’ll nominally permit prosecutions for unofficial acts but he’ll exclude *evidence* of official acts—which may end up sabotaging those prosecutions too. Like, oh, say, just for instance, People v Trump in NY. ...
/13
... How does a mind like CJ Roberts’—who was one of the finest supreme court advocates of his generation—take an unbriefed whim like this and create from it such an illogical obstacle to prosecuting ex-presidents for even *unofficial* acts? ...
/14
... And how do 4 other justices sign on?
The standard euphemism for 6-3 or 5-4 rulings like this one is to say that the justices voted along “ideological” lines. Here, that’s strained, though...
/15
... The majority’s ostensible ideologies—originalism, textualism—offer no explanation for the policy-driven outcomes of this case, as conservative critics have noted. (Below.) Even “expansive” views of exec power can’t explain the illogic of III-C ...
/16

bit.ly/45RQaa9
... Politics, tho, might. Subconsciously, might Republican appointees want their party’s candidate’s crimes to go away? Subconsciously, might they sense that they prefer writing majority rulings to dissents & that, with a Democratic Prez, that could change? Hmm.
/17-end

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More from @rparloff

Jun 30
After today’s 5th Circuit argument in the Alien Enemies Act case WMM v Trump ( formerly AARP) it appeared that at least 2 of the 3 judges would approve the validity of Trump’s Alien Enemies Act proclamation. Unclear what due process they’ll afford targeted aliens. ...
1/6
... Judge Andrew Oldham (Trump appointee) doubted that a court could "countermand" virtually any aspect of Trump's decree. He even doubted that aliens had a right to deny their membership in Tren de Aragua, tho SCOTUS has said they do. ...
2/6
... Judge Leslie Southwick (GWBush) was tending toward adopting Judge Haines's (WDPenn) view. Haines found that the decree plausibly found a “predatory incursion” in light of Secy Rubio’s designation of TdA as a “foreign terrorist organization.” ...
3/6
Read 6 tweets
Jun 25
Emil Bove, like Blanche on X, may be evading. Reuveni wrote than on 3/14 "Bove stated that DOJ would need *to consider* telling the courts "fuck you” and ignore any such court order." So it's true Bove didn't literally order anyone to violate court orders *at that meeting*
1/3 Image
... & it’s also true that Reuveni, later that day, after speaking to DOJ colleague Flentje, felt momentarily reassured. But it's the events that followed--laid out in detail over 27 pages--that suggest that Bove's "fuck you" comment *was* eventually carried out. ...
2/3 Image
... And I don't think anybody yet has denied that the "fuck you" comment was made. Maybe Bove will today. Maybe not. But there’s likely a text between Reuveni & Flentje referencing it when DOJ/DHS was, it seems, violating Judge Boesberg’s orders on 3/15.
/3-end Image
Read 4 tweets
Jun 19
Tomorrow, at noon, Judge Farbiarz (DNJ) will hold a hearing on whether to release Mahmoud Khalil on bail. Khalil, in custody in Louisiana, requested the hearing 91 days ago. Since then at least 5 others similarly situated have all been released. Thread.
1/21
Khalil is a lawful permanent resident Columbia grad student who participated in Gaza protests. No criminal record. Palestinian. On 3/8 he was detained in his lobby in NYC as he returned with his US citizen wife, who was then 8-months pregnant. ...
/2
On 3/9, Khalil sued seeking release, alleging retaliation for 1st Amendment protected speech.
On 3/11 DHS told Khalil that the reason he was being removed was Secy Rubio’s finding that his presence in US had “serious adverse foreign policy consequences.” ...
/3
Read 21 tweets
Jun 12
Hearing in Newsom v California, the national guard case, starting at 4:30pm ET. I'll try to live-blog for @lawfare , technology permitting. ... It's on Zoom, but I think the 1000 max has already been hit. ...
/1
Judge Charles Breyer on bench now.
Newsom v Trump
counsel giving appearances
Nicholas Green for state AG seems to be lead.
Brett Shumate from DOJ
/2
Judge: preliminary comments. reason it's necessary to have briefing is while it was initially styled ex parte proceeding, it was certainly not ex parte. there was cooperation between parties. wanted to make sure i had complete record to extent it can be achieved

/3
Read 64 tweets
Jun 12
In motion for civil contempt & other sanctions against govt officials, including personal fines, Abrego Garcia’s attys shoot for the moon. Here they ask Judge Xinis to order AG Pam Bondi et al. to turn over her personal devices for in camera review. ...
/1

storage.courtlistener.com/recap/gov.usco…Image
The motion relies on allegations of both a pattern of obstruction & specific responses inconsistent with NYT reporting & the timing of Abrego Garcia's indictment. Here, e.g., attys allege 60 days of obstructive conduct *after* SCOTUS ruling ordering facilitation of his return:
/2 Image
But the real smoking guns are alleged responses of, for instance, DHS atty Joseph Mazzara, who filed a declaration & was deposed in the case. NYT has reported emails of him allegedly saying, "We're also trying to keep him where he is."
/3 Image
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Read 6 tweets
Jun 11
Admitting “perfect storm of errors,” DHS has changed its story in the case of Jordin Melgar-Salmeron, the 31yo Salvadoran who, on 5/7, was deported to El Salvador 28 minutes after the US 2d Circuit Court of Appeals forbade his removal pending appeal. ...
/1 Image
... Melgar-Salmeron was appealing an adverse asylum ruling. On 4/17 govt told USCA2 it would remove him unless court stayed his removal by 5/8. On 5/7, at 9:52am ET, USCA2 stayed his removal. But at 10:20am ET he was removed anyway. ...
/2

documentcloud.org/documents/2597…Image
... Govt has filed 3 letters explaining. 2d letter, on 5/28, said there were 2 computer systems. Deportation officer, reporting to DOJ, monitored one showing deportation set for 5/9. But ICE Air had him down for 5/7 all along. DOJ & ICE Air statements of 5/28 below:
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Read 6 tweets

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