Please allow me one more thread on the immunity ruling. The substantial wrench SCOTUS has thrown in the NY case against Trump comes solely from one passage in the decision, section III-C, and it relies on a weird, inexplicable detour in CJ Roberts’ reasoning. ...
1/17 ... Until III-C, the ruling is based on separation of powers arguments & its policy goal is to ensure that presidents can act “without undue caution” & “free from undue pressures & distortions.” But in III-C, Roberts suddenly veers off course into a discussion of jury bias ...
/2

Many conservatives now accept with bored acquiescence the near certainty that Trump, if elected, will dismiss both federal indictments against himself. Yet it would be an abuse far greater than the Saturday Night Massacre that once shocked the nation...
1/6 In Oct 1973, Nixon fired AG Elliot Richardson & then Dep AG Wm Ruckelshaus for refusing to fire Special Prosecutor Archibald Cox, who was subpoenaing Nixon’s White House tapes. The firings galvanized bipartisan support for impeachment proceedings ...
/2

I’m puzzling over the chief justice’s crucial but impenetrable fn 3 in the immunity ruling. It discusses when evidence of official acts can be admissible to prove crimes involving unofficial acts. I invite guidance/correction from lawyers, professors, & others ...
1/11 ... Roberts is rebutting here the views of “concurring” Justice Barrett. (And I don’t get why Barrett says she’s only concurring when she’s clearly also dissenting to a crucial part of the ruling.) Explicitly agreeing with the dissent, Barrett writes ...
/2

Govt's reply last night, asking Judge Cannon to stop Trump from claiming that FBI wanted to kill Trump & his family, gives details about Ricky Shiffer’s 2022 attack on an FBI hdqtrs & a more recent threat to an agent working on the Hunter Biden case...
1/9
bit.ly/45Dz9A4
... On 8/11/22, three days after the Mar-a-Lago search, Shiffer attacked an Ohio FBI office with an AR-15 & a nail gun. When FBI pursued him, he fired on agents & then engaged in a 6-hr standoff, per search warrant application appended to the reply.
/2

My ambitious goal here is to give an overview of the arguments for & against Trump’s motion to dismiss due to the alleged unconstitutionality of the appointment of special counsel Jack Smith. Judge Cannon is weighing the motion very seriously & will hold a hearing 6/21. ...
1/30 The motion is supported by 2 amici, who take different tacks. A 3d amicus supports the govt.
The 1st pro-Trump amicus includes former AG Ed Meese & FedSoc co-founder Steve Calabresi. Their atty is Gene Schaerr.
/2

Trump apologists now argue that Trump’s 34 crimes were wrongly upped to felonies—as if 34 misdemeanors are A-OK, on top of civil judgments for persistent fraud on lenders, charity fraud, sex abuse, 3 defamations, his company’s 17 felony convictions for tax fraud, etc. ...
1/15 ... But what of the simple scumminess of this candidate, as evinced by the NY trial evidence? Let’s look at a few examples. E.g., remember that one component of the Trump-Cohen-Pecker deal was to smear Trump’s primary opponents. ...
/2

Was D.A. Bragg Right to Bring the New York Charges Against Trump?
(Answer: Yes) ...
1/~20
bit.ly/453GCIC ... Now that we’ve seen the People’s case, we can make an educated guess about why DA Bragg brought it. Though we don’t know Bragg’s thinking, we do know a bit about his predecessor’s. ...
/2

Responding to Jack Smith’s request that Judge Cannon order Trump to stop lying about the FBI having tried to kill him, Trump's attys wrote 15 pp on govt’s alleged violation of Local Rule 88.9, seeking a hearing & sanctions on the *rule violation.* ... 1/5 bit.ly/3Vfy3Hq
... The local rule requires that attys “meet & confer” before filing motions in order to promote “efficient use” of the court’s and parties’ time. Govt attys said they knew from previous gag order rodeos that Trump’s attys would never agree to limits on Trump’s speech ...
/2

I’m going to unpack here what I was getting at hastily last night. Jack Smith is trying to force Judge Cannon to stop Trump’s dangerous lies about the FBI—facilitated by def attys—by shoving in her ear her past orders targeting the govt. ...
1/10
bit.ly/3wFoKal
... Yesterday’s motion seeks, in effect, a limited gag order to halt Trump’s recent slanders accusing the FBI of having “authorized” & been “itching” to kill him during its Mar-a-Lago search. In reality, FBI went out of its way to ensure Trump’s absence during search ...
/2

Jack Smith's new motion to halt Trump's recent series of dangerous lies about FBI being "locked & loaded & ready to take me out" is crafted to highlight Judge Cannon's bias & hypocrisy if she fails to take action ...
/1

https://twitter.com/AnnaBower/status/1794169385294397575

... The motion twice cites Cannon's order "ECF 101" in which she, on her own, invoked her "independent obligation to protect the integrity of this judicial proceeding" in order to probe a dubious defense allegation of a prosecutor's ethical breach ...
/2

Will Todd Blanche’s Perry Mason moment Thurs. during his cross-examination of Michael Cohen torpedo the People’s case against Trump? Here’s some perspective. ...
1/16 ... On Thurs Cohen misremembered a call to Trump bodyguard Schiller on the evening of 10/24/16. He thought he spoke to Trump about Stormy Daniels but, in fact, it appears he probably spoke to Schiller about a 14-year-old prank caller. But ...
/2

As Trump’s classified docs prosecution goes forward, now with no pretense of trial before the election, Judge Cannon appears poised to permit him to use public hearings in the case to sound his campaign themes. ...
1/25 ... Here, as he did so successfully in Fulton Co., Trump will try to turn the tables, putting prosecutors on trial. Almost all of Trump’s motions (& defenses) reduce to campaign themes: Prosecutorial misconduct and selective & vindictive prosecution orchestrated by Biden. ...
/2

Judge Cannon is about to make a crucial scheduling decision. It’s when Trump must file his “CIPA § 5 notice.” On 4/10, Cannon set it for 5/7, but Trump wants it put off again till after NY trial—at least 9 weeks. Jack objects. It’s fully briefed as of yesterday ...
1/13 ... Here’s what it is and why it matters. CIPA § 5 is at the heart of CIPA (Classified Info Procedures Act of 1980). CIPA was enacted to combat “graymail.” That’s when a defendant tells govt: If you indict me, I’ll disclose national security secrets at trial in my defense. ...
/2

Here's the "Sandoval" motion the People filed on 3/10 but which just became public. It lists the 13 prior bad acts the People would like to confront Trump with if he elects to take the stand in NY. Includes sex abuse, defamations, persistent fraud ...
/1
bit.ly/4aZdOms ... the 17 felony counts two Trump companies were convicted of (including tax fraud); a $939K fine for frivolous bad-faith lawsuit; abuses by Trump Foundation.
Justice Merchan will most likely bar most from being used, & none would come in unless Trump testifies.
/2-end

After this morning's argument, seems likely SCOTUS will reject DOJ’s use of 18 USC §1512c2 (obstruction of an official proceeding) in J6 cases by a 5-4 & possibly even 7-2 vote. No idea, tho, if the 2 such charges against Trump in DC, which are sui generis, survive ...
/11 ... The charge will probably be dismissed from the ≥ 353 J6 cases in which it has been brought, which is about ¼ of them. If 5-4, the vote will be along familiar ideological lines. But 2 justices seemed in play: Amy Coney Barrett & Ketanji Jackson. ...
/2

Here are 4 observations about Nauta’s 5/26/21 interview with the FBI, which Judge Cannon ordered unsealed, in redacted form, Friday. Transcript available on @lawfaremedia below. ...
1/20
bit.ly/3W1tiBZ ... Obs. 1: Since Jack Smith didn’t take Cannon to the 11th Circuit to stop publication of this transcript, he apparently feels, at least for now, that he can live with Cannon’s order of 4/9, largely retracting her unsealing order of 2/6. ...
/2

https://twitter.com/rparloff/status/1778075290427601174

As you’ve likely read, yesterday Judge Cannon retracted her 2/6 order that would have unsealed identities of ~ two dozen potential govt witnesses or FBI agents. She thereby likely averted having Jack take her to 11th Circuit over the issue ...
1/7
bit.ly/3vOwnL4 ... Her 24-page order is defensive, blaming Jack for not having laid out his argument more clearly earlier. With some basis, tho. Jack’s team isn’t flawless. Its failure to meaningfully respond to Trump’s & Press Coalition’s arguments for unsealing in Jan was baffling. ...
/2

On 4/3, an intriguing letter Trump filed on 3/19 in the NY criminal case became public. If Trump takes the stand, the People would seek to cross-examine him about “13 different court determinations” about him as well as the “underlying facts” that led to those. ...
1/11 ... We don’t know which prior court findings the People seek to introduce. (If the letter is imprecise, the People might also be seeking to put in other kinds of findings—like the Jan. 6 Committee’s.) In any case, Trump seeks to bar them all. ...
/2

Regretfully, I think Judge Cannon made the correct chess move yesterday, and I join those saying that Jack can’t seek mandamus just yet. Still, I think it’s unlikely Cannon can avoid a 11th Circuit showdown on *something* soon...
1/9

https://twitter.com/rparloff/status/1775959172518903900

... There are too many frivolous Trump motions pending, and given her extreme aversion to ruling against Trump (for whatever reason), she can’t dodge them all indefinitely. Each may give Jack a chance to seek reassignment, which some 11th Cir. judges may already favor.
/2

In Jack Smith’s blistering filing yesterday on Judge Cannon’s aberrant proposed jury instructions, Jack tells her she “must” rule “promptly” so he can weigh appellate options. Here’s my @lawfare inquiry from last week into those options ...
1/3
bit.ly/3J1Gn6t ... Two of the cases Jack cites on are discussed in the article: Wexler and Pabon-Cruz.
Tl: dr: I found 6 instances in which govt brought “mandamus” challenges of jury instructions, of which 4 were successful. ...
/2
bit.ly/3J1Gn6t

Judge Merchan’s order yesterday, expanding the gag-order on Trump, put important teeth into his earlier order. If Trump’s “harassing & disruptive” conduct continues, he may be *denied access to juror names,* Merchan warns. ...
1/5 ... Though jurors’ names will be protected from *public* dissemination, Trump & his lawyers would, by statute, normally have access so they can research open source info about them, like political registration & social media accounts. ...
/2