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
... 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). ...
/4
... 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.” ...
/5
... 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. ...
/7
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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If you read the precedents Abrego Garcia is citing in seeking release from detention, you begin to realize the unreported horrors Trump's DHS/ICE is quietly committing throughout the country. Take Zavvar v Scott, for instance. ... 1/7 law.justia.com/cases/federal/…
Reza Zavvar, 52, came to the US from Iran when he was 12 (so 40 yrs ago). He was granted asylum & permanent residence. Then, in the 1990s, when he was in his 20s, he had 2 misdemeanor convictions for possession of pot. ...
/2
In 2004, because of those, the GWBush Adm got an order of removal against him, but removal to Iran was withheld because of threats to his life or freedom there. He was then allowed to live & work in MD without incident *for nearly 18 years.* ...
/3
Judge Immergut (my new favorite judge) issued her 31-page opinion, barring federalization of 200 National Guard troops in Portland, <48 hrs after entering the case. It’s a model of restrained but powerful prose & reasoning. Read it yourself ... 1/3 storage.courtlistener.com/recap/gov.usco…
Without hyperventilating, she lays out in ¶ 1 the huge stakes here. The case is about "3 of the most fundamental principles in our constitutional democracy": * federalism; * the relationship between the military & domestic law enforcement; * and judicial review. ...
/2
Her ruling is also a model for how a judge can use Trump’s unhinged words (“war-ravaged Portland”) against him without going off the rails him- or herself. E.g., “The president’s own statements [show] that his determination was not ‘conceived in good faith.’”
/3-end
Given that @DowJones is not seeking a merger that @BrendanCarrFCC can block, Trump’s suit against the @WSJ (re the Epstein Birthday book note) seems destined for swift dismissal + assessment of attys fees. ... 1/6 storage.courtlistener.com/recap/gov.usco…
Yesterday, @WSJ moved to dismiss on 3 seemingly iron-clad grounds: The article is (1) true; (2) not defamatory; & (3) lacks any whiff of “actual malice.” It’s true in that it only describes a note “bearing Trump’s name” & includes his denials in the subhead & in 3 ¶s of text.
/2
It's not defamatory because a bawdy note to a friend—even one later convicted of crimes—is not defamatory. In 2002, Trump admitted his 15-yr friendship with “terrific guy” Jeffrey Epstein, and in 2016 he admitted the Access Hollywood tape was just his “locker-room banter.” ...
/3
Last night, in the Ghana pass-thru case, Judge Chutkan found that the govt’s actions appeared to be part of a “pattern & widespread effort to evade [its] legal obligations by doing indirectly what it cannot do directly.” But she denied relief due to likely lack of jurisdiction ...
1/4
She noted that immigration judges have found that the 5 plaintiffs face “persecution, torture, or death” if returned to their home countries, as one already has been. US officials allegedly told plaintiffs on planes to Ghana that they would ultimately be sent to home countries.
/2
Chutkan noted that “this case is not an outlier,” listing 6 other examples of suspicious or abusive govt conduct. She says the deal with Ghana appears to be “hasty & unwritten” & suggests that the govt knew all along what it was doing. ...
/3
Judge Chutkan just finished a phone conference hearing in D.A. v. Noem. Plaintiffs allege the govt is sending African aliens to Ghana knowing Ghana will forward them to home countries where US courts have barred govt from sending them directly ... 1/5 courtlistener.com/docket/7132371…
... due to reasonable fear of torture or persecution. Judge Chutkan fears she lacks jurisdiction—4 plaintiffs are already in Ghana & one has already been forwarded to Gambia—or that she should transfer the case to Judge Murphy in Boston as part of the DVD class action on 3d country removals. ...
/2
The @ACLU 's Lee Gelernt argued that DVD challenges general procedures whereas DA's claim is narrow: Ghana gave the US diplomatic assurances that it would not forward aliens to countries where they face persecution/torture, yet it's doing exactly that with US acquiescence/connivance. ...
/3
At 2pm there will be a preliminary injunction hearing in the Guatemalan children case (LGML v. Noem). I hope to live-blog here for @lawfare , as will colleague @AnnaBower on another platform. For bracing & thorough background, see Anna's piece here:
/1 lawfaremedia.org/article/the-ju…
If you recall, Judge Sparkle Sooknanan entered a temporary restraining order 8/31, barring the removals— govt calls them "reunifications"—of Guatemalan children ages 10-17. Govt has admitted intent to deport 327 children, with the first 76 booked for departure at 10:45am ET on 8/31. ...
/2
... Judge Sooknanan was just covering the emergency docket that day—it was Sunday Labor Day weekend—so now the case has been randomly assigned to Judge Tim Kelly, who must decide whether to extend the TROs into a preliminary injunction & whether to certify a class. ...
/3