A strong, shrewd amicus brief was filed yesterday in the appeal of Judge Cannon’s dismissal of US v Trump (MaL) for the AG’s alleged improper appt of Jack Smith. It urges reassignment to a new judge if the court reverses. I’ll encapsulate. ...
1/18 bit.ly/3Xecred
The brief was filed by @CREWcrew , ret. USDJ Nancy Gertner, & ethics profs Stephen Gillers & James S. Sample. What’s shrewd about it is what it doesn’t do. E.g., it never mentions who appointed Cannon. (Legal nonstarter & nobody needs to be told.) ...
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@CREWcrew ... For the most part, It doesn’t allege that Cannon’s in the tank for Trump. Instead, it quotes her expressed view that prosecuting an ex-president is an intolerable affront to his dignity & implies that her rulings are distorted by that firmly held belief. ...
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@CREWcrew ... On the other hand, toward the end it goes a further, alleging that her conduct has “repeatedly appeared to cross the line from mere legal error into active judicial intervention & advocacy on behalf of the former president.” ...
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@CREWcrew The brief groups Cannon’s anomalous conduct into groups of 3 (as in 3 strikes). An 11th Cir reversal would be Cannon’s 3d in this matter. The 1st two related to her 2022 ruling blocking prosecutors from examining the fruits of the M-a-L search by appting a special master. ...
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@CREWcrew ... In Sep 2022 the 11th Cir unanimously rev’d her denial of a temporary stay in that matter & then, in Dec, unanimously reversed in toto, noting that affirmance would “violate bedrock separation-of-powers limitations” & require “a radical reordering of our caselaw” ...
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@CREWcrew ... The 3d reversal would be of her appealed decision dismissing the case which “hinged on ignoring the plain text of four federal statutes & dismissing as ‘dicta’ a landmark SCOTUS opinion confirming the AG’s power to appoint a special counsel.” ...
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@CREWcrew ... The brief also offers 3 examples of Cannon’s anomalous handling of the case before the dismissal: (1) her 2022 appt of the special master; (2) her demand for jury instructions on “a spurious legal defense that would have gutted the govt’s case”; ...
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@CREWcrew ... and (3) her “failure ... to move the case forward in any significant way.” The jury instructions flap was when she proposed (below) that Trump, by taking classified docs from the WH, was silently & unreviewably declaring them “personal,” rendering them lawfully his.
/9
@CREWcrew ... The amicus brief says that Cannon’s proposed jury instructions seemed to flout language in the 11th Cir’s Dec 2022 ruling that Trump “neither owns nor has a personal interest in” classified docs. (Refusal to follow appellate rulings is one basis for reassignment.) ...
/10
@CREWcrew ... Refreshingly, when discussing why Cannon might have been slow-walking the case, the brief identifies the elephant in the room: that Trump, if elected, will likely make these cases go away through abusive exercise of presidential powers. ...
/11
@CREWcrew Jack Smith has never spelled that out, and the SCOTUS majority, in its immunity ruling—while criticizing the lower courts for their expedited treatment of the case—pretended to have no clue what the rush might have been about. ...
/12
@CREWcrew As evidence of Cannon’s “failure to move the case forward,” the brief relies in part—but heavily—on the litany of odd events described by former CIA atty @secretsandlaws in his NYT op-ed. ...
/13
@CREWcrew @secretsandlaws ... Throughout, the brief also cites 11 other NYT articles, including 10 by @alanfeuer and/or @charlie_savage , which, in turn contain quotes from well-credentialed experts expressing astonished concern at various things Cannon had done. ...
/14
@CREWcrew @secretsandlaws @alanfeuer @charlie_savage ... While Trump (or whoever else files a brief defending Cannon) will doubtless mock this brief’s heavy reliance on NYT articles, the legal test for reassignment hinges on “the appearance of justice” ...
/15
@CREWcrew @secretsandlaws @alanfeuer @charlie_savage ... and cogent criticism of Cannon by well-credentialed experts should not be laughed off merely because it’s found in a great newspaper that isn’t owned by the Murdochs. ...
/16
@CREWcrew @secretsandlaws @alanfeuer @charlie_savage ... The lead atty on the amicus brief is Steven A. Hirsch of Keker, Van Nest & Peters. I’m impressed. I’ve tried writing about Cannon’s anomalous conduct myself & have always gotten bogged down in the weeds. All of us who’ve followed the case closely ...
/17
@CREWcrew @secretsandlaws @alanfeuer @charlie_savage ... know that there’s still more weirdness out there. But most of it is too minor to warrant reassignment in itself, and only becomes suspicious cumulatively. Hirsch has taken the right tack, IMHO. This brief had to be written & he & the amici did a good job with it.
/18-end
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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
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
... & 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
... 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
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
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
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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…
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:
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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."
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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
... 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…
... 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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