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Ira 'Greybeard Homer' Goldman 🦆🦆🦆 Profile picture
@KDbyProxy
Apr 19, 2018 • 8 tweets • 4 min read • Read on X
1/ Time for a thread: About NY AG Schneiderman's proposal to amend NY's double jeopardy law… to make it easier for NY to prosecute sm1 who's been pardoned by Trump.

In particular: Would it raise an Ex Post Facto Clause problem – eg if NY at some point prosecutes Michael Cohen?
2/ Tbc, this is NOT about double jeopardy & the dual sovereignty doctrine; clearly, the US Constitution doesn't deny states the right to prosecute sm1 simply because the federal government has already prosecuted that person on the same facts.
3/ Rather, this is about NY's double jeopardy *statute* and whether there will be ex-post-facto problems if NY amends the statute to enable certain prosecutions that presently are banned... and then prosecutes someone for acts committed before the ban was lifted.
4/ @JedShug, who's called for a change to NY's DJ statute, CPL 40.20 codes.findlaw.com/ny/criminal-pr…, says there is an ex-post-facto problem slate.com/news-and-polit… but only if NY changes its law *after* 1) sm1 has pleaded guilty to federal charges, or 2) sm1's federal trial has started.
5/ I don't know the basis for that take by @JedShug. In any event, as I read MATTER OF KAPLAN v. RITTER (1987) leagle.com/decision/19872… the key date in an ex-post-facto analyses in this context is the date the feds "commenced" prosecution.
6/ And as I read NY law, "prosecution commences" when charges are brought. So if NY wants to beat the ex-post-facto clock per its Court of Appeals*, it seems there's even less time to act.

(* – as to whether SCOTUS would agree w/ NY on this, that's a separate question ⬇️)
7/ As for whether a change to NY's double jeopardy law can be applied retroactively w/o running afoul of the US Constitutions Ex Post Facto Clause... @JedShug says yes, and he cites Stogner v. California, 539 U.S. 607 (2003) supreme.justia.com/cases/federal/…
8/ At the moment, I can't say I think he's wrong; he may well be right. But, I'm not ready to agree with him… b/c I'm stuck on Collins v. Youngblood, 497 U.S. 37 (1990) supreme.justia.com/cases/federal/… Tbf, this is not my wheelhouse. Just fwiw I'm saying I don't think the answer's clear.

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More from @KDbyProxy

Ira 'Greybeard Homer' Goldman 🦆🦆🦆 Profile picture
Feb 11
FUN FACTS:
A) The current CR runs out on March 14.
B) That CR included funds for agencies that Trump/Elon/DOGE are now claiming to have closed.
C) If there's another clean(-ish) CR, it will also include funds for those agencies that have supposedly been closed.

1/
D) If the next funding bill is an omnibus, in the normal course the Repub Congress would have to decide whether to include funds for any of those supposedly closed agencies – eg, zero-out money for USAID.

2/
HOT TAKE: Trump (et al) will press for the next funding bill (whether C or D) to incl odd language of this sort: "The provision of funds in this bill for depts, agencies, or programs does not mean the president lacks authority to order they be defunded of otherwise closed."

3/
Read 4 tweets
Ira 'Greybeard Homer' Goldman 🦆🦆🦆 Profile picture
Dec 17, 2024
Except…
A) Loudermilk is wrong b/c cmtes aren't bound by attorney-client privilege,
B) So it was lawful for Liz Cheney to talk to Cassidy Hutchinson w/o her attorney,
C) So that's not a basis for a witness tampering charge,
D) Even before we get to Speech or Debate immunity.

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I misspoke(?) when I connected my argument to attorney-client privilege. While cmtes do resolve an assertion of a-c privilege as a matter cmte discretion, Cheney talking w/ Hutchinson w/o her attorney is not an a-c issue.

h/t @NastyOldWomyn & @mls1776
Rep Loudermilk (R-GA) also is wrong here when he claims the rules of the DC Bar regulated Liz Cheney's contacts with Cassidy Hutchinson – especially as the DC Bar, itself, established almost 50 years ago that they don't.

#HRules
3/
 Image
Read 4 tweets
Ira 'Greybeard Homer' Goldman 🦆🦆🦆 Profile picture
Nov 14, 2024
Some thoughts on the issue of a president's power to force the Congress to adjourn – ie, for at least 10 days so he can then make so-called "recess appointments" of officials at will.

Looking at Art II, Sec 3, one could think the Constitution empowers a POTUS to do that...

1/ Image
After all, it says if the Houses are in disagreement "with Respect to the Time of Adjournment," the president "may adjourn them to such Time as he shall think proper".

But what if there is no such "disagreement" between the Houses?

#SRules
2/
Well, if a president has the support of (let's say) the House on this maneuver, he could arrange such a disagreement: Simply have House leadership get the House to adopt an adjournment "concurrent resolution", then send it to the Senate, and if the Senate doesn't act on it…

3/
Read 15 tweets
Ira 'Greybeard Homer' Goldman 🦆🦆🦆 Profile picture
Oct 30, 2024
Interesting piece by @ElieNYC, but while he gets some things right, he's wrong on others – and he misses some ~arcane things usable to counter nefarious efforts at a joint session.

1) Speaker Johnson, singly, as speaker, can do none of the "secret plan" things Mystal claims.

1/
That is, re the joint session, unless Johnson were _somehow_ to have the votes of a majority of the House and of the Senate, the JS things @ElieNYC outlines can't happen – and that's true whether something is done during this Congress or after the start of the next on Jan 3.

2/
2) The "deadlines" he mentions are deadlines, but for purposes of obtaining certain presumptions under the Electoral Count Reform Act; they aren't deadlines for whether or not Congress may consider a cert that's executed or rec'd late – again, if the votes are/aren't there.

3/
Read 16 tweets
Ira 'Greybeard Homer' Goldman 🦆🦆🦆 Profile picture
Oct 28, 2024
A) There is no "secret" method I and others don't already know about.
B) If Repubs take the House _and_ Senate, _and_ ~all Senate Repubs toe Trump's line (which seems doubtful), then there would be a way they could steal the election at the joint session, but...

1/
C) If Repubs have only the House, or if they have both Houses but not the votes in the Senate, then at that point the only way they could steal the election would be by trashing the ECRA (eg, walking out), then electing Trump speaker & letting him succeed as acting-president.

2/
D) As for anyone thinking the Trump-Johnson "secret" is a plan for the House to choose Trump as president under 12A (1 vote per state) – No. B/c the House chooses a president only if "no person has such majority", which necessarily means the electoral votes had been counted.

3/ Image
Read 14 tweets
Ira 'Greybeard Homer' Goldman 🦆🦆🦆 Profile picture
Sep 22, 2024
If MAGA members at the 2025 joint session pull 💩 of a kind they pulled in 2021, we're going to see how little the purported limits on the VP in the new Sec 15(b) of the ECRA mean.

Eg, recall at the 2021 joint session – despite what the Constitution and the ECA say about…

1/ Image
… opening "all the certs", even just "purport[ed]" certs" – that Pence didn't open "purported" certs from Trump's electors? His decision on that was beyond ministerial (and that the Parls advised him to do it doesn't change that). I said at the time…

#SRules #HRules
2/
… that was wrong, but w/o anyone objecting it didn't matter, and no one objected to THAT.

The ECRA struck the word "all", so now the VP is told just to "open the certs", but 12A still says "open all the certs", so there's that.

(nb: caveats to this will be discussed below)

3/
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Read 27 tweets

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