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Lee Kovarsky Profile picture
Lee Kovarsky
@lee_kovarsky
Professor of Law, University of Texas. Habeas corpus, death penalty, some other law stuff, sentient space robots, kids who don't listen to me, and hot sauce.
Naturallove 🇺🇲🇺🇦☝️❣️☮️ 🌎🌙♎⚖ Profile picture sally paddles Profile picture TouricRoro28 Profile picture Len Grossman: a sympathetic, well-meaning, elder.. Profile picture Sherry Minson Profile picture 8 subscribed
Jul 19 • 12 tweets • 3 min read
THIS IS A MADE UP DEADLINE.

Once again - it's a phantom "risk" with no actual basis in the ratified law, and DNC has repeatedly fudged dates to exaggerate it.

This is the law that OH Gov signed on 6/2 saying that any certification by 9/1 is effective:

1/
Image The DNC tried to point to some other statute on the books that gave a different deadline, ignoring that this law expressly displaces that other law in the first sentence of the provision.

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Jul 10 • 15 tweets • 4 min read
BOMBSHELL NPR STORY ON TEXAS LETHAL INJECTION PRACTICES



According to the story, Texas used its lethal injection secrecy laws to hide the fact that it's been using dangerous, expired drugs purchased from a dubious compounding pharmacy.

1/kvnf.org/npr-news/2024-… It gets worse and worse:

Texas has been buying the compounded drugs from a ‘pill mill’ pharmacy chain that was selling opioids to addicts and dealers and is implicated in at least one fentanyl overdose death.

DOJ injunction against one branch:

2/justice.gov/opa/press-rele…
Jul 3 • 13 tweets • 3 min read
NO, FOR FUCK'S SAKE, THE NEW YORK CONVICTION'S NOT GETTING VACATED FOR PRESIDENTIAL IMMUNITY

(Unless SCOTUS gets involved.)

Merchan deferred the date and permitted briefing b/c he's a good judge and to deny argument on the issue would jeopardize the verdict more.

1/ T's basic argument is insipid. He wrote some checks to repay Cohen after he was President and then tweeted horrifically incriminating evidence that he understood the whole scheme. Image
Jul 2 • 11 tweets • 2 min read
IMMUNITY, BRIBES AND PARDONS

Perhaps the most ridiculous part of the Immunity opinion was Part III-C, where the Court held that not only was much official conduct immunized, but immunized conduct couldn’t even be used as EVIDENCE to prosecute conduct that wasn’t immunized.

1/ It’s the point on which Justice Coney Barrett defected to the dissenters. It’s a thinly supported evidentiary privilege masquerading as immunity, but it’s also got deeper incoherence. The best way to understand it is through the relationship among immunity, bribes, & pardons.

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Jul 2 • 28 tweets • 4 min read
IMMUNITY, "BOLD ACTION," AND BELLIGERENCE

Yesterday's opinion relentlessly favors the slightest increment increment of presidential prerogative over all competitor interests. It's a belligerence that's far more analytical than tonal, but it’s there.
1/ Consider the objections below in view of the 3 basic buckets: (1) “core” constitutional functions get absolute immunity; (2) official acts that are non-core get an immunity presumption that the State can overcome; and (3) unofficial (private) conduct gets no immunity.

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Jul 1 • 15 tweets • 2 min read
SUMMARY OF WHAT SCOTUS HELD IN IMMUNITY CASE (NO EDITORIALIZING UNTIL END)

Think three buckets:

First, absolute immunity for official acts that are core presidential functions (pardon, removal of executive officers);

1/ Second, presumptive immunity for official acts that are NOT core presidential functions (everything official that is not in (1)).

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Jun 24 • 9 tweets • 2 min read
TEXAS WANTS TO EXECUTE RAMIRO GONZALES ON WEDNESDAY

The death sentence was based on a prediction of future danger that has proven wrong. That’s a big constitutional problem, but no court can hear his claim – unless SCOTUS does something.

1/ Austin Sarat:

TX is the only state that bases death sentences on predictions of “future danger.” The leading clinical body long ago explained that affirmative findings of future danger are wrong about 2/3 of the time.

2/thehill.com/opinion/civil-…
Jun 3 • 5 tweets • 1 min read
THE "ORIGINAL HABEAS" THEORY IS SILLY.

I've written a major article on this specific form of jurisdiction, & in so doing coded 1,673 original petitions. I've studied this particular power more than anyone else alive. ()

Here's what I can tell you:

1/ digitalcommons.law.umaryland.edu/cgi/viewconten…
(1) even for cases in the right procedural posture, SCOTUS hasn't granted a prisoner original habeas relief since 1925 (ex parte grossman);

but this case isn't even in the right procedural posture because

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Jun 2 • 7 tweets • 2 min read
The last thing I'll say about this stupid tweet and the stupid op ed decision-making at @WSJ behind it.

Let's pretend Trump were convicted of a FECA violation in federal court and then it was the concealed crime referenced in the New York state offense.

1/ It's stylized scenario b/c in this case, the 175.10 object offense was not a federal crime, but another state offense (15-172) that could be committed by unlawful means that included a federal crime (FECA).

But let's exaggerate it in Vivek's favor for illustrative purposes.

2/
May 29 • 4 tweets • 1 min read
JUDGE MERCHAN DID NOT FUCKING DO THIS.

Do better.

If a law says NO VEHICLES IN THE PARK & list of vehicles includes mopeds and motorcycles, all the instruction means is that you need unanimous conclusion of vehicle but not unanimous on whether vehicle was moped or harley.

1/ 175.10 offense is fraudulent instrument to commit/conceal another crime, and one of the other crimes is state 17-152 offense for "influencing" election through "unlawful means." That also has to be unanimous,

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May 28 • 17 tweets • 3 min read
QUICK NOTE ON JUDGE MERCHAN AND “THE FIX IS IN”

As we await jury instructions, let’s be clear about one thing: whatever you think of the New York law at issue (175.10) or the DA Bragg’s decision to use it,

1/ it’s pretty silly to suggest that JUDGE MERCHAN is somehow stretching the law to accommodate a Trump conviction.

2/
Apr 25 • 10 tweets • 2 min read
READING JUSTICE ROBERTS IN THE IMMUNITY CASE

It's reasonably clear that EK, SS, ACB, and ACB are the most hostile to the Trump position in immunity. I've seen very different opinions about what CJR was up to today. Let's look at every moment he spoke substantively

1/ PAGES 6-8: Involves circulating hypo that official immunity would mean that a POTUS that took bribes for appointment/pardon would be immunized. DJT lawyers try to get out of this by saying that accepting bribe part wouldn't actually be immunized so hypo wouldn't happen.

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Apr 25 • 18 tweets • 3 min read
QUICK THOUGHTS ON TRUMP ARGUMENT TODAY

The basic positions were as follows: Trump wants official acts immunity against criminal prosecution, which is really broad, Special Counsel wants something narrower (or no immunity at all).

1/ The Court seemed very much inclined to resolve not just the Question Presented (immunity), but a whole smorgasbord of questions about the potential criminal liability of a former POTUS (“FPOTUS”).

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Apr 25 • 73 tweets • 9 min read
I'LL BE LIVE-TWEETING THE PRESIDENTIAL IMMUNITY ARGUMENTS HERE.

For background, here's my segment with @NPR All Things Considered:

Any my @NYT argument that the Court should announce a skinny immunity:


1/npr.org/2024/04/24/119…
nytimes.com/2024/02/29/opi… Sauer (Trump's lawyer) is up giving opening statement now. Opening statement goes straight into parade of horribles - charging Biden for border policies, Obama for Anwar al-Awlaki, Bush for Iraq, etc.

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Apr 22 • 10 tweets • 2 min read
UNDERSTANDING THE FURY ABOUT SHAI DAVIDAI

People outside of uni communities might not understand why there is such a strong reaction to what he’s doing – that is, why so many of us find his narcissistic grandstanding to be especially worthy of peer-group scorn.

1/ If you are a tenured faculty member at university, you are a principal member of a community, and you are expected to take care of other people in it.

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Apr 15 • 14 tweets • 2 min read
TRUMP’S IMMUNITY ARGUMENT CONTINUES TO BE IDIOTIC

Months of opportunity to improve the briefing on his immunity argument, and it’s still just awful.

1/ It’s still out-of-context quotes from Marbury v. Madison, a smattering of online content speaking to ancillary political points, and a deeply confused understanding of how a favorable finding of presidential immunity would affect his own prosecution.

2/
Apr 10 • 5 tweets • 1 min read
There's this whole parcel of Presidential Immunity discourse where MAGA pretends that the only thing standing between it and weaponizing DOJ against democratic presidents is a SCOTUS declaration that POTUS has "official acts" immunity rather than some other kind of immunity.

1/ Like know-nothing demagogues doing "reap/sow" memes and shit, like anybody looks at that movement and thinks that the precise contours of presidential immunity has any downstream effect on efforts to weaponize prosecutors.

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Apr 9 • 13 tweets • 3 min read
THOUGHTS ON SPECIAL COUNSEL'S SCOTUS BRIEF ON IMMUNITY:

SHORT VERSION: PAY ATTENTION TO WHAT HAPPENS ON REMAND.

(1) SCOTUS is very unlikely to recognize official acts immunity, always has been, & the state of the case after principal briefing is unchanged in that respect.

1/ (2) It is possible (and IMHO desirable) for SCOTUS to declare a lower-grade immunity for conduct that necessary to a function that the constitution assigns to the president ("skinny immunity").

2/
Apr 5 • 4 tweets • 1 min read
HERE'S TRUMP'S PRESIDENTIAL RECORDS ARGUMENT, NUTSHELLED:

Imagine a marble bust of Abe Lincoln sits in the white house and the statute says it can only be moved around by "authorized" personnel, with authorization defined by Executive Order.

1/ Trump, who is not authorized by the Order, takes Abes' bust to Mar-a-Lago, later declares that the very act of taking it had the effect of a personal-record classification, and that right to declare records to be personal means that he was "authorized" to move it.

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Apr 4 • 5 tweets • 1 min read
I know folks wantto wish mandamus into existence, but a mandamus petition under 28 USC 1651 is literally organized like this:

- Introduction

I. THE TRIAL COURT VIOLATED CLEAR LEGAL DUTY TO DO [X]

II. There is no adequate remedy at law.

III. The equities favor relief.

1/ I have been asking for 24 hours and nobody has produced anything remotely on the order of what's necessary for (I). Specifically, Cannon has no legal duty, let alone a clear one, to specify her jury instructions before trial.

2/
Apr 4 • 10 tweets • 2 min read
MOAR EXPLAINING RE: CANNON -

People are suggesting that Smith can mandamus Cannon's refusal to declare the PRA instruction - meaning ask the appeals court (CA11) to require her to do it before jeopardy attaches.

1/ DOJ is just not going to be able to do that, and I wish folks would stop saying that it should. In order to mandamus a judge, it has to be the case that she's failed to do something there is a clear duty to do.

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