Marty Lederman Profile picture
ConLaw Professor at Georgetown University Law Center (on leave to serve at DOJ--all tweets here in my personal capacity, of course)
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Nov 23 4 tweets 2 min read
I can't overstate what an achievement this is--and, much more importantly, a great read, overflowing with revelations, deep insights (and warnings) about Chuck, about rock & roll, about St. Louis, and about America, then and now. (1) "Chuck outlived Elvis, Johnnie Johnson, Johnny Winter, and Johnny Ramone. He outlived rock & roll. In 2022 he seems less like a rocker and and more than ever simply a representative American artist. He had a vision of a country that did not exist, and he willed it into life." (2)
Nov 23 4 tweets 2 min read
I can't overstate what an achievement this is--and, much more importantly, a great read, overflowing with revelations, deep insights (and warnings) about Chuck, about rock & roll, about St. Louis, and about America, then and now. (1) "Chuck outlived Elvis, Johnnie Johnson, Johnny Winter, and Johnny Ramone. He outlived rock & roll. In 2022 he seems less like a rocker and and more than ever simply a representative American artist. He had a vision of a country that did not exist, and he willed it into life." (2)
Sep 6, 2021 4 tweets 4 min read
@JaneMayerNYer @samuelmoyn can correct me if I'm mistaken, but his critique appears to be predicated on three assumptions that (IMHO) aren't warranted:
1. That the US conflicts with AQ, et al., have violated the Charter/the jus ad bellum;

@DavidColeACLU @JaneMayerNYer @samuelmoyn @DavidColeACLU (2) that there is a large anitwar consensus lurking out there that would have insisted upon this illegality and worked to end those conflicts, if only ...
(3) Obama, HRW, etc., had not worked so hard to humanize the conflicts by protecting prisoners and civilians, ...
Jan 9, 2021 8 tweets 2 min read
Ok, yes, I'm genuinely grateful that all of these people are coming out now in favor of removing the dangerous blight on our political system and our nation. But would they have been insisting on his removal if he had said *the very same things* on Wednesday but the crowd ... [1] ... hadn't breached the Capitol? Where were they when Trump said these same vile things--& much worse (e.g., all of Volume II of the Mueller Report; the Zelensky call; "good people on both sides"; the call to Raffensperger; 10,001 grotesque tweets)--for the past 5 years? [2]
Oct 20, 2020 7 tweets 2 min read
Perhaps the most important thing to realize about last night's 4-4 split in the PA ballot case is that the Democratic Party of PA begged the SCOTUS to not simply rule on the stay motion but instead to grant cert. "and summarily resolve this case ..." [1]

supremecourt.gov/DocketPDF/20/2… ... in order to provide certainty concerning legal questions that have assumed critical importance in light of the extraordinary circumstances attending the upcoming election."

The four dissenters could have done so, but chose not to. [2]

@rickhasen
Oct 20, 2020 8 tweets 2 min read
I think Lyle is exactly right here. This wasn't a decision on the merits, and we should assume that when the Court grants cert. and reaches the merits just before or after 11/03, a very real possibility is that all late-arriving ballots *will not be counted.* [1]

@rickhasen The Court's message to Trump's team about their prospect of success is loud and clear--and they know they're better off if they win *after* 11/03. What's more: This was the *weakest* case for Trump of the big ones remaining, b/c it was review of a *state* court's reading ... [2]
Oct 14, 2020 6 tweets 2 min read
Somehow I completely missed Judge Lamberth's recent denial of John Bolton's motion to dismiss the USG suit for proceeds from this book. [1]

@charlie_savage @jacklgoldsmith @just_security

justsecurity.org/wp-content/upl… Two important, contestable holdings:

(1) Form 4414 requires an official who had access to SCI to submit a writing to prepublication review if it contains info "related to" SCI, even if there's no SCI and the person didn't believe there was even info "related to" SCI in it. [2]
Oct 14, 2020 5 tweets 2 min read
DOJ has sued to enforce an NDA that the Office of the First Lady entered into with a volunteer advisor, Stephanie Wolkoff. Not about classified info at all. We finally get to see one of these NDAs. [1]

@jacklgoldsmith @JameelJaffer @oonahathaway

int.nyt.com/data/documentt… She wasn't an employee; and it remains unclear whether Trump has also had employees sign similar agreements. But as to either volunteers or employees, I'm not sure we've seen this sort of thing before, and therefore there might not much, if any, caselaw directly on point. [2]
Oct 13, 2020 5 tweets 2 min read
The three most disturbing things about this CTA5 opinion:

3. The grotesque "we must resist defining desperation down" bit in fn.7--you know, "Get over your COVID hysteria, you wimps; it's not that bad." (Sound familiar?) [1]

@rickhasen

assets.documentcloud.org/documents/7228… 2. The assumption throughout the opinion that the constitutionality of voting rules must be assessed in the aggregate, e.g., "The July 27 and October 1 Proclamations ... must be read together"--and therefore any restriction is ok as long as it's easier to vote ... [2]
Oct 9, 2020 4 tweets 1 min read
Agudath Israel alleges that Gov. Cuono's new regulations--imposing stricter "gathering" limitations in neighborhoods that have recently seen much higher spikes in rate of COVID than other NY neighborhoods -- ... [1]

nytimes.com/2020/10/09/opi… ... isn't neutral or generally applicable vis-a-vis religion, and therefore violates Orthodox synagogues' free exercise rights.

The State argues that the new rules are neutral and generally applicable.

In fact, however, ...
Oct 8, 2020 22 tweets 5 min read
Yesterday a panel of the 9th Circuit ruled that the Census Bureau must continue counting U.S. residents through 10/31, in order to achieve an accurate count that the pandemic would otherwise prevent. [1]

@hansilowang

cdn.ca9.uscourts.gov/datastore/opin… Just four hours later, the Acting SG asked the #SCOTUS to stay the injunction. Why the urgency? Nominally because the injunction "prevent[s] the [Commerce] Secretary from reporting [the results] to the POTUS by Dec. 31, 2000, a statutory deadline." [2]

justsecurity.org/wp-content/upl…
Oct 8, 2020 6 tweets 2 min read
From what I can tell, DOJ/DOC have been playing a bait-and-switch game with the courts here. First they represent that the Secretary can no longer meet the 12/31 deadline, period. Then they cut short the count ... /1 ... b/c allegedly the 12/31 deadline can't be met if the Bureau continues the count beyond 9/30.

Then, when that deadline is enjoined, they say that no, really, *October 5* is the drop-dead deadline by which the count *must* end in order to meet the 12/31 deadline. /2
Oct 3, 2020 5 tweets 2 min read
When I saw the pictures of so many--from Senators to high-ranking executive officials to professors to the nominee and her kids & other family--gathered closely together w/o masks at the Rose Garden ceremony last Saturday, I found it shockingly insouciant/callous. /1 Were they specifically *asked* to forego masks (e.g., for photo-op purposes)? If so, why on earth did they all comply w/the request? What's worse: If they all thought there wasn't any risk or if they knew better but threw caution to the (literal) wind anyway? /2
Sep 30, 2020 5 tweets 1 min read
Plaintiffs in the NDCal census case have filed their motion to compel, w/this classic opening line: "Plaintiffs just want Defendants to follow this Court’s orders." [1]

justsecurity.org/wp-content/upl… The request: "Although this Court has authority to find
Defendants in contempt, and to award a broad range of sanctions, Plaintiffs ask for one thing: full compliance." To that end: amending the P.I. & requiring DoC to submit a weekly compliance report. [2]
Sep 29, 2020 8 tweets 2 min read
The plaintiffs in the Judge Koh census suit accuse Dep't of Commerce of violating the judge's injunction by stopping the count on 10/05 rather than on 10/31. Judge Koh about to reconvene the hearing to address it.

justsecurity.org/wp-content/upl… In the hearing, DOJ insists, repeatedly, that Sec. Ross's decision to stop the count on October 5 wasn't, well, a "decision"--it was an "adjustment." Perverse, or is there some legal basis for it?
Sep 16, 2020 10 tweets 4 min read
In the ABC Town Hall last night, in response to @GStephanopoulos's questions about why he's asking the Supreme Court to invalidate Obamacare's coverage for preexisting conditions, @realDonaldTrump repeatedly insisted ... /1

@nicholas_bagley @dorfonlaw @SCOTUSblog 2/ ... that "I got rid of the most unpopular thing [in Obamacare] -- and a very unfair thing -- which is the individual mandate."

That's a non sequitur, but in essence Trump's right!: /2

abcnews.go.com/Politics/trump…
Sep 10, 2020 6 tweets 2 min read
I have some quibbles:

First, it's not a "133-year-old law." Congress prescribed the December 14 date for the electors' meeting in 1934, not in the 1887 ECA.

@IsaacDovere @TheAtlantic @rickhasen @Nedfoley Second, the article assumes the PA legislature has a "constitutional right to pick its own electors" on or before 12/14. But that's not quite right. The Constitution gives a state legislature the power to "direct" the "manner" in which PA will appoint electors. /2
Sep 4, 2020 6 tweets 2 min read
Thanks for flagging, Will. The problem here was that the GOP relied entirely on Reed, and didn't even cite the long line of cases in which the Court has insisted that religious speech must be treated equally with comparable nonreligious speech, e.g., /1 ... the Widmar line of cases, up through Rosenberger and Good News; Heffron v. ISKCON, in which the Court explained that an exemption for the Krishna there would require a similar exemption for all other solicitors; and Texas Monthly (esp. White's concurrence). /2
Aug 31, 2020 5 tweets 2 min read
"We have no trouble answering that question in
the negative." Precisely. This was an easy question, with no serious argument on the other side. The only thing noteworthy about it is the fact that the SG and Judges Henderson & Rao argued otherwise.

justsecurity.org/wp-content/upl… By contrast, Judge Sullivan's forthcoming decision whether to grant DOJ leave to dismiss the charges does raise a difficult, unresolved question: Should a judge grant such a motion *at the sentencing stage,* where there's virtually nothing more for the prosecutor to do, ... /2
Aug 31, 2020 8 tweets 4 min read
There's something strange going on here. The full story hasn't yet emerged from the SC appointment memo; the Mueller report and testimony; the @RepAdamSchiff letter; & the McCabe, @JeffreyToobin & forthcoming @nytmike/@AWeissmann_ /Strozk books. /1

@just_security Mueller wrote that FBI agents in his shop were supposed to send CI info to the Bureau for its consideration. But according to @nytmike, at least some at the FBI appear to have thought Mueller was handling it himself. /2
Aug 24, 2020 14 tweets 4 min read
A few thoughts on the letter of 200+ federal judges w/r/t Art. III membership in @acslaw and @FedSoc. [1]

int.nyt.com/data/documenth… The letter prompted the Judicial Conference’s Code of Conduct Committee to withdraw a proposed prohibition on such membership and to leave decisions about how to balance the identified ethics considerations "to the judgment of individual judges.” [2]

fixthecourt.com/wp-content/upl….