Marty Lederman Profile picture
Law professor at Georgetown University Law Center
Barb Profile picture eDo Profile picture Becky Werner Profile picture SLT-TMK Profile picture Cindi🌹🦀🌚🥑🍣🥃🥂⚾️ Profile picture 9 added to My Authors
31 Jul
This is a *very* big deal, especially in those states that impose strict deadlines for *receipt* of ballots. And we can't depend on the Senate to stop it. Which means we have to spread the word, often, with two critical messages: /1

@persily

washingtonpost.com/politics/posta…
1. If you're voting by mail, do so *very* early, way before November 3.

2. If you're young & healthy, esp. if you live in AL/AZ/CO/FL/GA/IA/ME/MI/MT/NC/PA/WI, please -- PLEASE -- volunteer to be a poll worker on 11/03. ... /2

powerthepolls.org
It's absolutely essential to have as many polling places as possible open in those states (& others), b/c many people will not vote by mail.

powerthepolls.org
Read 3 tweets
28 Jul
I've substantially updated my post on Trump's decision to not count undocumented immigrants in his state-by-state House reapportionment calculus in January, to reflect: further info about DOJ's longstanding view, which Trump ignored; more history on the Fourteenth Amendment; ...
... a possible additional statutory problem; a congressional hearing tomorrow; and the filing of at least five cases already challenging Trump's action.

balkin.blogspot.com/2020/07/trumps…
Read 2 tweets
9 Jul
Preliminary thread on Trump v. Mazars:

1. Judicious opinion by the CJ. The strongest statement ever by the Court in support of the traditional "accommodation" process between the political branches, which has been shot to smithereens in recent years. /1
The Court won't look kindly on any efforts by either branch to undermine/pretermit that process (which shouldn't bode well for DOJ's absurd "testimonial immunity" theories in McGahn, et al.). /2
The Court reaffirms very broad congressional investigatory powers generally. But it also says that there are special concerns when it comes to investigations of the POTUS--and that in such cases certain congressional objectives are impermissible, namely, ... /3
Read 10 tweets
7 Jul
I've been critical of Justice Kavanaugh several times in recent weeks, but credit where it's due: Footnote 8 of his AAPC opinion today is a concise, effective way of explaining something that all first-year law students should learn, namely: /1

supremecourt.gov/opinions/19pdf…
that courts don't actually "invalidate" or "strike down" unconstitutional laws; they simply decline to enforce them or to give them legal effect in the case at hand--& when the SCOTUS does so, all other actors (other courts and executive officials) almost always follow suit. /2
In AAPC itself, however, it's not as simple as that, b/c BK is wrong that "the 2015 government-debt exception" is a "constitutionally offending provision." That exception doesn't prohibit any speech at all--to the contrary--and thus standing alone it's not unconstitutional. /3
Read 16 tweets
26 Jun
Dear @realDonaldTrump: Has anyone told you that your Department of Justice just told the Supreme Court that when you signed the Tax Reduction Act in 12/17 you *established* an "individual mandate"--"a straightforward command to maintain [minimum health insurance] coverage"?!
That the law you signed "must be read as creating a legal obligation" to maintain insurance that "law-abiding citizens must comply with"?

Now, you know full well that you did no such thing: Indeed, you often boast that you *eliminated* the "mandate" by zeroing out the tax.
But your Solicitor General's entire case is predicated on the opposite proposition: that you and the GOP Congress created a mandate to maintain insurance!

No, seriously. He wrote that.
Read 5 tweets
20 Jun
@steve_vladeck Does "the vacancy is filled" mean *only* by PAS appointment, or does it also include "filling" by an AG appointment of a new acting AG, or by a presidential appointment under the VRA? If the former, does 546(d) purport to preclude a presidential removal?

@AJosephOConnell
@steve_vladeck @AJosephOConnell Longstanding OLC view is apparently that POTUS can remove Berman, but Barr can't.

justice.gov/sites/default/…
@steve_vladeck @AJosephOConnell Just to be clear: Of course if Berman is being removed b/c he's investigating Trump or his cronies, the removal is unconstitutional--but that's SOP for Trump.
Read 3 tweets
11 Jun
Yes, of course Michael Flynn committed the offense to which he twice pleaded guilty: He knowingly & willfully told FBI officials material falsehoods on 01/24/17. And more recently he lied to the court when he insisted that he didn't knowingly lie in 01/17. HOWEVER ... /1
... those lies/offenses aren't as significant, IMHO--sometimes not nearly as much--as a dozen and a half or so other things that've happened in the Flynn saga, some of which are far more troubling than Flynn's lies and most of which are *not* criminal offenses.

For example:

/2
(i) Flynn's secret conversations w/Kislyak in Dec. 2017.

(ii) Flynn's efforts to undermine U.S. foreign policy in those calls.

(iii) Flynn's & Trump's indifference to Russia's efforts to alter the U.S. election--and their signals to Putin that they didn't much care. /3
Read 13 tweets
4 Jun
Wait a sec: The reason her obsessive, multi-year coverage of the so-called "campus culture wars" (hmm: "wars" on campus; "war" in the NYT) "always mattered" was that one day, years later, part of the NYT staff would be upset because @nytopinion chose to publish, ...
... from among thousands of submissions, an Op-Ed by the most belligerent member of the Senate--someone hardly lacking for fora--urging an "overwhelming" and (probably) unlawful use of military force in the midst of a public uprising to protest . . .
... police violence against African-Americans? An Op-Ed that had the audacity to invoke 1957 Little Rock as an analogy?

Boy, she sure was prescient.
Read 3 tweets
4 Jun
This extraordinary memo might be more significant than the Mattis statement. Together, the message they send to the forces is unlike anything I can recall. Military resistance to the civilian CINC is *not* a welcome precedent--but Trump has left them with little choice.
To be clear, the military hasn't (yet) refused an order. The point of this memo is to send up a flare in order to try to deter Trump from issuing any unlawful orders. Remains to be seen what the response would be if and when he does so.
Read 2 tweets
1 Jun
Judge Sullivan's brief to the D.C. Circuit in the Flynn case.

justsecurity.org/wp-content/upl…

@just_security
This brief doesn't really get into the most important questions relating to Flynn--namely, whether his conduct (and the President's) respecting Russia and Turkey was problematic; whether DOJ, the FBI and the IC had reason to be alarmed by, and investigate, it; and ... /2
... why AG Barr now insists that Flynn did nothing problematic and that the FBI had no basis to investigate the threat he possibly posed. For much more on all of that, see my post from last week:

justsecurity.org/70431/understa…

/3
Read 3 tweets
1 Jun
@kewhittington, I agree with your primary point, namely, that the Court will (& should) be less deferential if a Governor leaves restrictions in place for many months on end, w/o reassessment. But of course they won't do--and aren't doing--any such thing: /1
The Governors are adjusting the restrictions virtually weekly as the evidence and medical needs change. As Roberts wrote, it's very dynamic.

Three objections, however:

First, Kavanaugh wasn't "raising real issues." He made unfounded assertions, ... /2
... such as that there was discrimination against church gatherings, when in fact California was treating churches more favorably than most such analogous gatherings. /3
Read 5 tweets
30 May
The more I ponder it the more it seems not only that the third graf in Chief Justice Roberts' five-graf opinion in South Bay United should resolve most or all of the current church-services cases, but also that the fourth & fifth grafs are designed ... /1

supremecourt.gov/opinions/19pdf…
... to deter many of the countless other challenges being filed daily against Democratic Governors' orders--in several of which the DOJ CRT has filed a series of unprecedented/alarming briefs, e.g.,

justice.gov/opa/press-rele…
justice.gov/opa/press-rele…
justice.gov/opa/press-rele…

/2
Only time will tell, of course. Which I mean literally--and so, it appears, does the CJ. Note his pointed references to "dynamic and fact-intensive matter[s] subject to reasonable disagreement" and to ... /3
Read 4 tweets
29 May
An update to my Flynn post: The reactions of many Barr/Flynn defenders to the 12/29 call transcript--in effect, that Barr's right that it's a big nothingburger or even "laudable"--suggests the following possible explanation ... /1

@just_security @EliLake @benjaminwittes
2/ ... about the heart of the huge disconnect here.

We know *now* that Trump (at best) didn't care about Russia's election interference--he's said so daily for three-plus years. And if that's your baseline understanding-- ... /2
... that of course Trump wasn't troubled by the cyber-operations and therefore would naturally have been trying to stymie the effects of Obama's sanctions--then the reaction to the Kislyak call is: "Duh!"

But *on December 29 2016,* ... /3
Read 6 tweets
29 May
You're about to hear a lot of something you've heard once before (remember Ukraine?): "Read the transcript! It's pitch-perfect!" But if it was so perfect, why was Pres.-elect Trump infuriated when word of it leaked in January 2017--why'd he direct Flynn to "kill the story"? /1
Because he and everyone else then knew how inappropriate the calls were and what they suggested about the Trump/Russia relationship and Trump's attitude to Russia's effort to sabotage our election.

See my Point 3 here:

justsecurity.org/70431/understa…

/2


@just_security
As I explain there, it was both procedurally and substantively outrageous--so much so that Flynn thought he had to lie to Mike Pence and Sean Spicer about it--and even to the FBI, knowing that they knew he was lying! This call was just *hours* after the U.S. issued sanctions.
Read 4 tweets
27 May
@LeahLitman @TheAtlantic Jane is such a lucid and compelling writer. Compare my more lawyerly take here:

takecareblog.com/blog/doj-s-unc…

The original sin here was that Trump settled on a legal view concocted by his personal lawyers, and then DOJ didn't have the wherewithal to push back. /1
@LeahLitman @TheAtlantic Here's how I concluded another post--it could be a coda to Jane's excellent article:

takecareblog.com/blog/how-the-d…

President Trump ... circumvented OLC here, preferring instead to take his constitutional advice from his personal attorneys at Morgan, Lewis and Bockius, ... /2
@LeahLitman @TheAtlantic ... who produced a "White Paper" that is, suffice it to say, hardly OLC-quality legal work. ... In its brief, DOJ presumably is defending a decision made by the President before any consultation with, let alone any thorough analysis by, OLC. ... /3
Read 7 tweets
22 May
It's virtually impossible to convey just how deviant and inappropriate it is for the DOJ Civil Rights Division to file a brief such as this, most of which is on a pure question of state statutory law. /1

assets.documentcloud.org/documents/6923…
To do so now, in order to help stymie a state's efforts to stop the spread of a deadly contagion, is as brazen as anything I've seen since DOJ argued that the 2017 Congress & President Trump enacted a mandate to purchase health insurance. /2
I suppose that in the absence of all that citizenship information, they can't enforce the Voting Rights Act, and therefore they must have been sittin' around looking for something, anything, to do, when finally some visionary piped up: ... /3
Read 4 tweets
21 May
@sbagen You're being too harsh, Sam. The very first thing he does is to reserve for "another day" the question of whether totalitarianism has "arrived in America." A fine example of judicial modesty.
@sbagen My favorite line in a judicial opinion in a very long while: "Back to vaping."
@sbagen He's also absolutely right that our founding fathers did not envision an administrative ban on the sale of flavored e-cigarettes. And I'll bet that's true of the founding Michigander fathers, too.
Read 5 tweets
19 May
@LeahLitman @TonjaJacobi My sense from listening is that (i) the CJ generally tried not to allow any Justice to ask a new question beyond three minutes; (ii) he extended that "window" to four minutes in some bottom-side arguments (e.g., Jeff Fisher) where there were two lawyers topside, .../1
@LeahLitman @TonjaJacobi ... and/or gave the bottom-side lawyer a second round, so that there wasn't a huge disparity between topside and bottom-side; and (iii) Justice Alito occasionally asked for leave to ask beyond three minutes, which the Chief gave him? I'd wager those three things ... /2
@LeahLitman @TonjaJacobi ... explain virtually all the stats.
Read 3 tweets
19 May
@jadler1969 @wrdcsc @Richard_Primus Is it fair to say that (i) the Chief generally tried not to allow any Justice to ask a new question beyond three minutes; (ii) that "window" was extended occasionally to four minutes in some bottom-side arguments where there were two lawyers topside, ... /1
@jadler1969 @wrdcsc @Richard_Primus ... so that there wasn't a huge disparity between topside and bottom-side (e.g., for Jeff Fisher), and/or the bottom-side lawyer got a second round; and (iii) Justice Alito occasionally asked for leave to ask beyond three minutes, and the Chief gave it to him? /2

@LeahLitman
@jadler1969 @wrdcsc @Richard_Primus @LeahLitman My sense from listening is that those three things explained 95+% of the stats @LeahLitman compiled.
Read 3 tweets
15 May
@crgreen24601 @WilliamBaude OK, though twitter's far from ideal for this. If I pledge to "support my family" or to "support Maryland," that doesn't say a thing about what form that support may or must take. There are very few judges/scholars/officials who aren't committed to supporting the Constitution. /1
@crgreen24601 @WilliamBaude I'm honestly not sure what (5) and (6) mean. I *believe* that (7) merely means, at most, that when the Const. was ratified, most people used certain conventions to interpret it. OK, but even if that's right, so what? It doesn't follow ... /2
@crgreen24601 @WilliamBaude ... that "support" for the document requires use of those conventions--and only those conventions--to interpret it. Those who fought for the Union army also supported it that way. That is to say, "support" doesn't say or connote a thing about how to interpret it. 3/
Read 7 tweets
14 May
In the category of Life is Stranger than Law School Exam Hypos:

Whadda ya get when you combine the all-out GOP campaign to stymie everything WI Governor Evers does (see the WI Sup. Ct. decisions yesterday & in the election-delay case) with ... /1
... the nationwide effort to accuse Dem. officials of discriminating against religion and even trying to "criminalize Easter" (Walker, J.); and then add a dollop of Hobby Lobby; a soupçon of Masterpiece Cakeshop; and a healthy dose of 70+ bad hair days in a row? /2
Well, you get Kingdom Kuts v. Evers, of course.

justsecurity.org/wp-content/upl…

@mjschwartzman @JimOleske
Read 3 tweets