DC Circuit denies the motion for an emergency stay in the Boasberg case 2-1, with a brief order and 92 pages of concurrences (one by Henderson, one by Millett) and a dissent (Walker).

I'm going to scan through the opinions and select out key parts. 🧵

media.cadc.uscourts.gov/orders/docs/20… I'm going to stick mostly with the merits issues.

1st up Henderson: The idea that the President's call is unreviewable is wrong.

Magistrate judge in the 5th Circuit, asked to sign off on warrants for routine "tower dumps," declines to do, writing an opinion concluding that all tower dumps are likewise unconstitutional in light of the 5th Circuit's recent geofencing opinion. 🧵
#N storage.courtlistener.com/recap/gov.usco…
Other courts have broadly ruled that tower dumps are not searches at all. I think this is wrong, as it's based on the erroneous mosaic theory. I explain why that's wrong in my new book. So I don't have a problem with the search holding, holding that a search will occur.

The Acting US Attorney of the SDNY resigned today, and she sent this letter yesterday to the Attorney General explaining why she refused to drop the charges against NYC's mayor. Read the whole thing, but the last two pages are in the screenshots. static01.nyt.com/newsgraphics/d…
The Deputy AG replies— among other things, putting all the AUSAs who were "principally responsible" for the Adams prosecution on administrative leave and referring them to OPR. nytimes.com/interactive/20…

Sorry if this is nitpicky, but headline writers, it's maybe worth noting: Smith's report argues that the evidence would have been *legally sufficient* to convict. It does not claim, as your headlines say, that a jury *would have convicted.* Smith is a lawyer, not a soothsayer.
et tu, WSJ? Sheesh.

A favorite in my collection: an original copy of William Lloyd Garrison's abolitionist newspaper, "The Liberator," from December 14, 1849. (Quick thread) "The Liberator" was an abolitionist newspaper published on a weekly basis from 1831 to 1865. You can read about it here. en.wikipedia.org/wiki/The_Liber…

Classic @IJ case, and I'm a big fan of the result from a policy perspective. Constitutionally, though, this seems off to me (with the usual apologies for thinking that the Constitution does not enact my personal policy preferences).
#N ca5.uscourts.gov/opinions/pub/2…


If the State thinks that you can't practice veterinary medicine effectively without inspecting the animal in person, that may be a dumb judgment. But at least to me—admittedly a non-expert in this area—it doesn't sound intuitively like it's primarily a regulation of speech.

I now have Gorsuch's book. On Aaron Swartz, he gives a remarkably one-sided view of the facts. Swartz "connected his computer to MIT's network," the book says, and "he began downloading articles from JSTOR." /1

https://twitter.com/OrinKerr/status/1822889214498963853

The book then quotes his attorney as saying that what Swartz downloaded "wasn't worth anything! It was a bunch, of like, the 1942 edition of the Journal of Botany!" /2

BREAKING: 5th Circuit, splitting with 4th Circuit, rules that geofencing is a search and warrants to search for geofence records are inherently unconstitutional. It may be that *all* Internet warrants are unconstitutional by this reasoning. Lordy.
#N ca5.uscourts.gov/opinions/pub/2…
I think that's an incredible result. As I read the opinion, it's too invasive to allow geofencing without a warrant, but it's too invasive to get a warrant for it, so no geofencing is ever allowed. This is bananas.

I'm not one to defend Trump, but I disagree w/the many claiming that Trump said there would be no more elections if he wins. I hear him more as just saying he'll do such a fantastic job he'll save the country so the stakes of future elections will be a lot lower.

https://twitter.com/grantstern/status/1817019182568861863

Responses to this tweet are sad. As my followers know, I despise Trump, and I criticize him almost every day and have since 2015. He is an authoritarian, and he flirts with fascism; I urge you to vote against him and save America.

But that doesn't change this clip! Trump says horrible stuff every day; we don't need to pretend that every word out of his mouth is equally horrible. Don't lose the plotline, folks.

This viral video, and the comments to it, brings up a common misunderstanding. No, the police don't have to tell you why they're detaining or arresting you. And no, they don't have to read you Miranda rights if they arrest you. They just need probable cause. That's it.

🧵

https://twitter.com/InternetH0F/status/1814563422756852136

Ok, the receipts. First, whether the police have to tell you why you're being arrested came up in a 2005 Supreme Court decision, Devenpeck v. Alford. Here's Justice Scalia writing for the 8-0 court, concluding, nope, no such requirement.
tile.loc.gov/storage-servic…

This is a really wild result—a finding that, in a simulated case, federal judges don't follow the law but that law students do—but I wonder if there is an explanation the authors don't identify. 🧵
journals.sagepub.com/doi/epub/10.11…
In the hypothetical case, you are a judge on the International Criminal Court for the Former Yugoslavia (ICTY), and you are deciding a defendant’s appeal of his conviction for war crimes by the ICTY’s trial chamber.

It's relatively easy for law schools to create a culture that values teaching, as professors interact w/students every day & get teaching evaluations. But a common question for law professors, & especially associate deans: How can you create a culture that values scholarship? 🧵 No easy answers, but I suspect the biggest thing is by example; showing that it's valued. A few (among many) possible examples:

(1) By the Dean and Associate Dean attending the faculty workshop. Leadership being involved in the scholarly process sends a big signal of values.

I not a grand constitutional theorist, and I don't really believe in grand constitutional theory, but @espinsegall asks an interesting question on his latest podcast: If you're a non-originalist, what is the best argument for originalism?

🧵 It seems to me that the best argument runs something like this. If the Constitution were easy to amend—such that our fundamental law reflected current clear majority views of public opinion—most people would be originalists.

Among the new demands issued by student "Berkeley Law for Palestine" group after Chemerinsky/Fisk dinner: Correct Erwin Chemerinsky's understanding of the First Amendment. Some UC Assistant General Counsel goes to library, gets First Amendment book for an expert's view...

NOTABLE: Google announces dramatic changes to its "location history" function that should nullify all geofence warrants going forward—and I wouldn't be surprised if that is the point. Code is law, as they say.
(h/t ) blog.google/products/maps/…
fourthamendment.com
As I read this, Google will no longer keep geolocation data even for the subset of users that turn on location history. The data will only be stored locally. Geofence warrants are used when the govt has no suspects, to get some leads, so this will likely defeat the technique.

I'm reading the newly-released transcript of Twitter's proceedings before Judge Howell on Twitter's compliance with the warrant for Trump's account. Here are thoughts as I go.
dcd.uscourts.gov/sites/dcd/file… First, this should be good. The lawyers are experienced lawyers from WilmerHale, and Judge Howell knows more about the Stored Communications Act than any other district judge. This is no one's first rodeo.

“A lot of times he’ll tell me that he lost, but he wants to keep fighting it, and he thinks that there might be enough to overturn the election." -- Mark Meadows on Trump, November 18, 2022, according Cassidy Hutchinson. One interesting thing about the latest Trump indictment is that it doesn't detail reports that Trump admitted he lost, leading some to suggest that they have no such evidence. But it not being detailed doesn't mean it doesn't exist. cnn.com/2023/06/06/pol…

Is access to Automated License Plate Reader info a 4th Amendment Search? Oral argument on this in US v. Mapson, 21-13668, see here, 2nd link.

A few thoughts on the argument.

ca11.uscourts.gov/oral-argument-… Defendant's side, 1st 25 minutes, didn't have much 4A discussion. There are three co-defendants, and only the 2nd defendant is making the ALPR argument. And it's being made in a very tentative way.

Yesterday, at the 8th Circuit judicial conference, Justice Kavanaugh gave a talk that included two interesting pieces of advice for Supreme Court advocates—one explicit, the other implicit. Tne talk isn't online, so I thought I would tweet about them. #appellatetwitter

🧵 First, he said that several Justices, himself included, believe that the two-minute uninterrupted opening time they now give advocates is a really critical time for advocates. You should use it well.

The Trump indictment allegations are bananas. With that said, if Judge Cannon is presiding, I'm not sure how much the facts will matter. Based on her decisions in the litigation over the warrant, Cannon may do whatever she can to protect Trump. And there's a lot she can do. (I hope my skepticism is unwarranted, but Cannon's decisions in the warrant case were astonishing. I find it hard to imagine a judge who would sign those opinions giving a fair shake to both sides now. But we'll see.)

A significant crim law case, Dubin v. US, is out, taking a narrow view of the Aggravated Identity Theft statute, 18 U.S.C. 1028A. Statute is limited to what is ordinarily considered identity theft; ID misuse has to be "at the crux" of the crime.
supremecourt.gov/opinions/22pdf… #N Opinion per Sotomayor, unanimous as to result, with 8 Justices joining majority opinion. Gorsuch concurs in the judgment, concluding the statute is vague and that the Court's attempt to narrow it doesn't end the vagueness.