A short thread in response to this question from
@natalie4_senate

There are lots of ways to answer this question, Natalie. As a matter of law, the Supreme Court has said that DNA can be collected when a person is arrested as part of a regular intake upon booking /1

https://twitter.com/natalie4_senate/status/1610856226187005953

The case is Maryland v. King. And the state and local privacy laws don't really cover things like law enforcement. So, as with all new tech, the question really is: do you trust the government? Or, more detailed, do we have enough of a system in place to let the government /2

Brief thoughts on the appointment of Jack Smith as Special Counsel:

1) On the merits this was not mandatory but probably the right thing to do. To the extent Biden is headed for another contest against Trump, creating more independence is both a substantive good and a /1 positive perception benefit.

2) That having been said, it won't really help Garland much. Doing the right thing will get him credit from those who expected him to do the right thing. No appointment of any sort can spare Garland or the SC from Trump's wrath and the /2

This is the best summary I have seen about why the SCT's Dobbs decision is unstable: "The State argues that Dobbs reflects no change in constitutional law “because there was never a federal constitutional right to abortion.” (Defendant’s Response at 2; emphasis in original). /1 Except there was. For50 years. And we know it because the very same Supreme Court told us so. Repeatedly. Those prior pronouncements carried no lesser effect and were entitled to no less deference in Georgia or anywhere else in the Republic than that which we all /2

Some thoughts about the Secret Service text message debacle. For context, this is 2022 (not, say 2005) and the USSS is =supposed= to be one of the most sophisticated cyber investigative agencies in the world. With that level of experience and expertise, the failures of /1 the USSS are almost beyond comprehension. Consider:

1) The deletions were apparently part of a message system migration. Who does a migration that is not backward compatible and doesn't preserve existing messages?

2) If you think it is essential to migrate to a new /2

Every time a covid-denying anti-vaxxer dies are part of my soul dies as well. In my heart, I know -- I truly know -- what a great tragedy it is. Someone has died, leaving family and friends behind and the death was, for the most part, completely unnecessary. That is a /1 tragedy of the first order. And we can never forget it. And my heart breaks.

But it also breaks because I know, in my soul, that some tiny part of me thinks "you deserved that." It is utterly wrong and inappropriate, but the selfishness that animates anti-vaxing; /2

So now that the Supreme Court has, effectively, ruled that States may empower private rights of action against Constitutional rights and, if properly structured, thereby evade pre-enforcement judicial review (and thus, allow the in terrorem effect of a possible law suit /1 to deter otherwise protected conduct, what rights are on the block? In liberal states, expect prohibitions on: gun rights (CA is already on in); corporate political contributions; homeschooling; racist or anti-LGBTQ corporate policies; failure to ameliorate climate change; /2

Before Trump fades from memory and his influence on the public wanes, it is important to not forget how abysmal a President he truly was. No doubt many will try to re-write history, but we should keep clearly in mind how aberrant he really was. To that end, here is my top 10 /1 list of Trump's worst decisions and actions that should live on in human memory for as long as we are keeping records. [Note: There are many candidates for this list, my choices are idiosyncratic, and necessarily leave off so many decisions (like banning science at EPA) /2

A Note To Those Who Follow Me: Four years ago, I think I had about 500 followers on twitter. Today, more than 15K. I am under no illusion that the increase is due to so many of you wanting to know my views on cybersecurity law and policy (my professional specialty) /1 Nor because of your love of my memes or my @Nationals fandom. I have every reason to think that most of the increase was because of the unicorn effect -- I was a rare breed -- a Republican who was opposed to Trump and spoke out about it regularly. That is still who /2

In this article (theatlantic.com/ideas/archive/…) I made the case for conducting a criminal investigation of Trump after he leaves office. In doing so, I acknowledged the very strong norm against such activity. I also noted that the single MOST significant reason to decline /1 an investigation was the idea of civil peace and the peaceful transfer of authority. In some ways, the promise not to prosecute a successor is, realistically, the price we pay for the peaceful transition of power. It is a way of calming the body politic and uniting /2

Musings on the "day after" (ok, several days after, but you get the idea): America faces three over-arching interlocking large-scale challenges that, in any reasonable world, should be the objective for the next four years:

1) At the narrowest, tactical level - we need to /1 fix the election system. Whatever you think of the result, the fact that this nation can be so miserably contorted in the process of elections -- long lines, mail-in disputes, different rules and rulings creating confusion, etc. -- is simply unacceptable for a mature democracy./2

Your periodic reminder that there are so very many reasons to vote against Trump. Today's version -- for purely personal reasons I was doing some looking around on the National Park Service for information about Glacier Bay National Park. I happened to wander over to /1 the web page that would have information about how and if the glaciers are melting -- nps.gov/glac/learn/nat…) and when you go there, all the data is missing. Though the thumb nail below shows a glacier /2

There are many things totally wrong with Justice Kavanaugh's concurrence in the Wisconsin case yesterday, but this one piece takes the cake. Kavanaugh writes: "those States also want to be able to definitively announce the results of the election on election night, /1 or as soon as possible thereafter." Let's be clear -- there are ZERO states that definitively announce the results of the election on election night. ZERO. The results announced on election night are all partial returns since EVERY state, tallies absentee ballots and /2

If your focus is on "court packing" and not on refusing to promise a peaceful transfer of power /1 And not on tax fraud and money laundering campaign contributions /2

Four years ago, when the US gave up its contractual control of the DNS system, I thought it was unwise. My reasoning was simple -- I thought that the US govt had stood as a bulwark against authoritarian influence on the network since it was created and that continued US /1 influence as a protector of network freedom would be a net benefit to the world. Critical to that assessment was my belief that no USG would ever support an effort to severely restrain freedom of expression on the network. There were exceptions to this general rule /2

How bad a president is @RealDonaldTrump? Let me count the ways:
1.#DerangedDonald: Thinks windmills cause cancer
2.Thinks nuclear bombs stop hurricanes
3.Still thinks the hurricane is going to Alabama
4.Thinks UV light and bleach stop C29
5.Thinks QAnon followers are OK 6.Person, Woman, Man, Camera, TV
7.#TrumpsNotWell: Can’t walk down a ramp
8.Needs two hands to drink water
9.Slurs his words
10.Won’t release his medical records

Barr lied. It is that simple. Yesterday he said that Berman had resigned. That was not true.

This is not, of course, the first time that Barr has proven to be a stone cold liar. He lied about the contents of the Mueller report. /1 But the question is why? And the answer lies at the intersection of the effort to fire Berman (now, apparently, approved by the President -- though maybe Barr is lying about that too) and the firing of Jessie Liu. /2

Congress cannot, directly, prohibit the President from firing Inspectors General -- though it could at some point amend the IG Act to allow the IGs to contest their dismissal as pretextual in court. But that would take a new law that won't pass anytime soon. So what to do now?/1 In the forthcoming Covid-19 bill, Congress could consider any number of ways to condition aid on the President's actions. Here's one draft possibility: "Provided, however, that no funds authorized or appropriated under this Act may be obligated or disbursed on any day /2

In 2006/2007 I participated in a large scale effort by the USG to figure out the right response to potential outbreaks of avian flu. Questions ranged from figuring out the speed of transmission and vectors to issues relating to border screening to ways in which (if needed) /1 we might use the US Postal Service to deliver supplies to people sheltering in place, and every other possible question related to this (communications; resources; provisioning; distribution; treatment; you name it). It was one of the singularly most difficult /2

Trump's very bad, not good day:
1) Loses THREE injunction cases involving his attempt to change the "public charge" immigration law;
2) Loses another injunction case involving his attempts to transfer military funds to the border wall project; /1 3) Loses his appeal to prevent the House from seeing his tax returns;
4) Has a former ambassador testify that she was fired because of inappropriate pressure from Trump regarding access to the Ukraine /2

A thought bubble on impeachment: In the Senate, the key number is NOT 67 but rather only 4. True, 67 votes are needed to convict and remove a President, but given the way the party lineup is right now, the real issue is whether or not 4 Republican senators will /1 stand up to McConnell. With 51 votes (or 50+Pence) McConnell can set whatever procedure he wants for the impeachment trial, including a shortened version that does nothing at all. But if just 4 Republican Senators break with him and join the Democrats, they can /2

Some thoughts on impeachment and the prospect ahead of us. None of this is particularly original, but perhaps the perspective I have (having worked on the Clinton investigation) gives me a bit of insight: /1 1) Impeachment is a very rare proceeding. We've done it roughly 2 dozen times in the history of America and this will only be the fourth time for a President (assuming that the House goes forward with an inquiry, and counting Nixon even though he resigned before the vote) /2