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Update: SCOTUS Will Not Intervene [Yet] In Trump’s Stolen Documents Claim

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Update, 10/13: The Supreme Court just declined to intervene in Trump’s stolen document case. That means that the Special Master review will, unless something entirely unforeseen occurs, be limited to documents without classified markings.

I’m republishing because I think this post best explains the damage that might otherwise have been risked.

I laid out what SCOTUS might review later in this process here.

Given developments in the last two days, here’s how the various schedules pertaining to Trump’s stolen document case intersect (I’ve included the original 11th Circuit deadlines to show the effect of yesterday’s ruling to expedite the merits appeal):

October 5: Finalize a vendor

October 11: DOJ Reply to Trump Emergency Motion at SCOTUS

October 13: DOJ provides materials to Trump

By October 14: DOJ provides notice of completion that Trump has received all seized documents

On or before October 14, 2022: DOJ revised deadline to 11th Circuit

October 19: Original deadline for DOJ appeal to 11th Circuit

21 days after notice of completion (November 4): Trump provides designations to DOJ

November 8: Election Day

November 10, 2022: Trump revised deadline to 11th Circuit

10 days after receiving designations (November 14): Both sides provide disputes to Dearie

November 17, 2022: DOJ revised reply to 11th Circuit

30 days after DOJ appeal (November 18): Original Trump response to 11th Circuit

21 days after Trump reply (December 9): Original DOJ reply to 11th Circuit

December 16: Dearie provides recommendations to Cannon

January 3: New Congress sworn in

No deadline whatsoever: Cannon rules on Dearie’s recommendations

Seven days after Cannon’s no deadline whatsoever ruling: Trump submits Rule 41(g) motion

Fourteen days after Cannon’s no deadline whatsoever ruling: DOJ responds to Rule 41(g) motion

Seventeen days after Cannon’s no deadline whatsoever ruling: Trump reply on Rule 41(g)

As I understand it, one way the 11th Circuit appeal may be expedited is that the panel will be picked, secretly, from the start, giving it a chance to review filings as they come in. And they can schedule an oral argument, if necessary, for almost immediately after the reply brief comes in. It will be a new panel, so the odds are at least one other Trump appointee will get a chance to weigh in, in addition to the two who already ruled against Trump.

The SCOTUS appeal, remember, is for a limited issue: Whether to restore classified records to the matters before Special Master Raymond Dearie and, ultimately, before Judge Aileen Cannon.

Particularly given that even Clarence Thomas, in setting DOJ’s deadline a week out, isn’t treating Trump’s appeal as much of an emergency, I think the most likely scenario is that SCOTUS declines to consider Trump’s appeal. It’s the easiest thing to do, dictated by precedent if SCOTUS feels obliged to follow it, and made more likely by the fact that Cannon has altered the scope of her order. As the timeline above shows, if that were to happen, it might well happen before DOJ’s deadline for its appeal on the merits.

I think the most likely scenario is that the 11th Circuit sustains the opinion that three judges on the Circuit already came to: that Cannon abused her authority to even take the appeal. DOJ has more information about Cannon’s abuses they could choose to include in their brief, such as that Judge Cannon halted a national security investigation based in part on a document Trump made public six years ago. Though by the time Trump files his response, he will have been able to review all the documents seized from his beach resort (barring the classified documents, unless SCOTUS quickly reverses the Circuit). So who knows what kind of imagined injury he’ll invent after seeing all the documents? The Circuit may act quickly enough to rule before Dearie issues his report to Judge Cannon, which is the next most likely time for her to engage in more fuckery. Because of her past fuckery, it doesn’t even appear that Dearie will issue a report on the potentially privileged materials until then either.

In other words, the best scenario — and a not unlikely one — is that SCOTUS first declines to review Trump’s appeal, and then the 11th Circuit rules that Judge Cannon improperly intervened, all of which may well happen before anything else overt happens in Judge Cannon’s docket, though Trump would have the ability to and likely would introduce details learned from his review before the 11th.

But we don’t know.

As I keep saying, anyone who tells you they know how this is going to work out is selling you assurances that can no longer be offered with this 11th Circuit and with this Supreme Court.

One thing many commentators are claiming that bears correction, however, is the claim the only damage the Supreme Court review can do is delay: that even if SCOTUS permits Dearie and Cannon to review the documents with classification markings, it could do no more damage to the DOJ investigation. That is obviously false.

Assume for the moment that SCOTUS does take Trump’s appeal and does rule that Cannon can include classified documents in her review (to be sure, I think that unlikely). And assume for the moment that the 11th Circuit reverses itself and finds that Cannon acted properly by intervening in a national security investigation to protect Trump’s interest in a letter he himself made public six years ago. Assume, too, that the 11th Circuit leaves in place Cannon’s decision to treat this as a “hybrid” motion, yoking the Special Master process to a Rule 41(g) motion.

In that scenario, Dearie would issue his report, including regarding classified records, on December 16. He likely would uphold all DOJ’s assertions regarding classification, because he understands how classification at least used to work, before this case: that the current Executive gets unlimited say over what is classified (which is different than what is National Defense Information). Trump would then object to Dearie’s report (he is guaranteed to when and if Dearie ever makes one). Cannon would then review the report de novo, as she did with Dearie’s work plan. And she would write an opinion that either affirmed Trump on one or two minor documents, or said, effectively, that she agrees with Dearie’s classification designations, but that she believes Trump’s logic — that he declassified these documents by shipping them to Mar-a-Lago, and that’s why he refused to give them back — is reasonable.

There are other things Cannon could do to fuck up the prosecution, for example by deeming the 33 pages of correspondence with NARA included in the Category A documents seized from Mar-a-Lago, Trump’s personal possessions under rule 41(g) and returning them to him, thereby depriving DOJ of evidence that directly pertains to the crimes under investigation.

But the way in which Cannon could most fuck up any charges for 18 USC 793e (though not obstruction) would by by issuing an opinion that — even if she agreed all the documents were classified — nevertheless deemed Trump’s bullshit story, that he believed he had declassified these documents by packing them in a box and shipping them to his beach resort, reasonable.

Charging a former President under the Espionage Act presents unique challenges, but I think they could be overcome given what we know has transpired. We’re even likely to learn that Trump lied to the lawyers who knew better than to ship classified documents to his beach resort, and those lawyers will make compelling witnesses against Trump.

But if Cannon gets the opportunity to review Trump’s bullshit declassification story and deems it reasonable — even though she has virtually no relevant experience from which to judge that issue, even though she’s just one judge big-footing on a lawful warrant, even though such an opinion would likely be overturned on appeal — it might make charging Trump under the Espionage Act prohibitively difficult. That’s because that opinion from a judge that Trump’s bullshit story was reasonable would likely be enough to sway at least one juror, especially if the case were charged in Florida. And DOJ is not going to charge Trump — they’re definitely not going to charge Trump under the Espionage Act — unless they’re sure that the most credible people making these kinds of arguments are potentially implicated witnesses like Kash Patel. Yes, they might still charge obstruction (and they might only charge obstruction anyway), but if Republicans win back one or both houses, they will use an obstruction-only prosecution to claim it was a politicized prosecution.

So yes, Clarence Thomas could do harm by accepting Trump’s appeal and SCOTUS could do harm by ruling in favor of it. I don’t think that’s the most likely outcome (and such a move would likely to lead to further appeals). But there is a risk of harm beyond a simple delay.

Before SCOTUS, DOJ Argues Trump Has Shown No Harm

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DOJ offered about a jillion jurisdictional reasons why Trump’s appeal to the Supreme Court should fail (I’ll circle back and catalog them in a bit). Because Trump’s was largely a jurisdictional complaint (arguing that the 11th Circuit did not have jurisdiction over the scope of the Special Master review), that’s the meat of the legal issue if SCOTUS decides to review this.

As they note, SCOTUS doesn’t even have to reach that issue because Trump has made no compelling argument that he will be irreparably injured unless SCOTUS intervenes to force DOJ to share highly classified documents with Special Master Dearie and Trump’s lawyers.

Most notably, applicant has not even attempted to explain how he is irreparably injured by the court of appeals’ partial stay, which simply prevents disclosure of the documents bearing classification markings in the special-master review during the pendency of the government’s expedited appeal. Applicant’s inability to demonstrate irreparable injury is itself sufficient reason to deny the extraordinary relief he seeks in this Court. Indeed, applicant does not challenge the court of appeals’ determinations that applicant will suffer no meaningful harm from the limited stay, App. A at 27-28; that the government would have been irreparably injured absent a stay, id. at 23-27; and that the public interest favors a stay, id. at 28-29. As the court explained, “allowing the special master and [applicant’s] counsel to examine the classified records” would irreparably injure the government because “for reasons ‘too obvious to call for enlarged discussion, the protection of classified information must be committed to the broad discretion of the agency responsible, and this must include broad discretion to determine who may have access to it.’” Id. at 27 (quoting Department of the Navy v. Egan, 484 U.S. 518, 529 (1988)).

[snip]

The challenged portion of the court of appeals’ partial stay simply prevents dissemination of the documents bearing classification markings in the special-master review while the government’s appeal proceeds. That limited relief imposes no harm — much less irreparable injury — on applicant. Applicant does not seriously argue otherwise. Indeed, applicant devotes only two conclusory sentences to irreparable injury: He asserts that it is “unnecessary” for him to make a showing of irreparable injury because the government is not likely to succeed on appeal, Appl. 29, and that “[i]rreparable injury could most certainly occur if the Government were permitted to improperly use the documents seized,” Appl. 35.

The first assertion cannot be reconciled with the very standard applicant cites (Appl. 3), which requires a showing of irreparable injury in addition to a likelihood of success on the merits. See Western Airlines, 480 U.S. at 1305 (O’Connor, J., in chambers). Indeed, vacating a court of appeals’ stay absent a showing of an irreparable injury would be inconsistent with both the “great deference” owed to the lower court’s decision, Garcia-Mir, 469 U.S. at 1313 (Rehnquist, J., in chambers), and general principles governing the granting of extraordinary equitable relief, see Winter v. NRDC, Inc., 555 U.S. 7, 24 (2008).

Applicant’s second assertion — that he “could” be irreparably injured if the government “improperly use[s]” the documents, Appl. 35 — is irrelevant because his application disclaims any request for vacatur of the portion of the court of appeals’ stay concerning the government’s use of the seized documents bearing classification markings. See Appl. 3 n.3, 9 n.6. Instead, applicant seeks vacatur only to the extent that the stay precludes the special master from reviewing those documents. Applicant has not asserted, much less demonstrated, any irreparable injury that would result from that portion of the court’s stay.

As smarter people than I have said, Trump’s failure to argue irreparable harm should end things — and it may well, particularly when counterposed against Navy v. Egan, the Supreme Court precedent giving the (current) Executive great authority to determine who can have classified information.

But with this court, we can never know.

There’s a far briefer section addressing the likelihood that Trump might prevail before the 11th Circuit (again, that’s not the primary argument Trump is making here). But it’s more interesting for our purposes, because these are the issues that SCOTUS might one day review in more substantive fashion, either an appeal of the merits decision before the 11th or, just as likely, as part of a criminal case against Trump.

That section repeats the still-uncontested point that Trump has claimed no violation of his constitutional rights (the standard under Richey).

The court of appeals held that the government was likely to succeed on the merits because the district court abused its discretion in entertaining applicant’s motion in the first place, especially with respect to the records bearing classification markings. App. A at 16-22. Applicant does not directly challenge that holding or address the court of appeals’ analysis, including its conclusion that he has not alleged — much less shown — a violation of his constitutional rights. Id. at 17.

Trump has instead demanded a Special Master to assert the closest thing he has to a defense — that there’s no criminal enforcement mechanism for the Presidential Records Act, and back before he was fired by voters, he had the authority to declassify documents.

Applicant instead contends that appointment of a special master was warranted because this case supposedly involves a “document storage dispute governed by the PRA” requiring “oversight,” Appl. 30-31; see Appl. 29-32, and because applicant had the authority to declassify classified records during his tenure in office, Appl. 33-36. Those contentions are wrong and irrelevant.

As DOJ has laid out before, his PRA claim fails because he has failed to comply with the PRA.

Applicant’s reliance on the PRA is misguided because he did not comply with his PRA obligation to deposit the records at issue with NARA in the first place. As a result, the Archivist does not have custody of those records, and the PRA’s procedures do not apply to them. Cf. 44 U.S.C. 2202, 2203(g)(1).

And besides, DOJ finally notes, if Trump has a complaint under the PRA, he needs to take it to Beryl Howell in the DC District.

Even were that not so, any dispute over access to presidential records under the PRA must be resolved in the District of Columbia, not the Southern District of Florida. 44 U.S.C. 2204(e). If applicant truly believes that this suit is “governed by the PRA,” Appl. 30, he has filed it in the wrong court — which would be yet another reason the government is likely to succeed on the merits here.

DOJ dismisses Trump’s claims that he could have declassified these documents by noting he has not claimed he did, much less presented evidence that he had.

As for applicant’s former authority to declassify documents: Despite asserting that classification status “is at the core of the dispute” in this case, Appl. 35, applicant has never represented in any of his multiple legal filings in multiple courts that he in fact declassified any documents — much less supported such a representation with competent evidence. Indeed, the court of appeals observed that “before the special master, [applicant] resisted providing any evidence that he had declassified any of these documents” and that “the record contains no evidence that any of these records were declassified.” App. A at 19.

DOJ notes that, for the purposes of this appeal, that doesn’t matter because these documents could not be his personal property, the ostensible point of the Special Master (DOJ does not note here what they did before the 11th Circuit, that even if these documents had been declassified, they would be responsive to the subpoena — though it does note earlier than he did not fully respond to the subpoena).

And in any event, any such declassification would be irrelevant to the special master’s review for claims of privilege and for the return of property. App. B at 23. As the government has explained (App. D at 12-17), the classification markings establish on the face of the documents that they are not applicant’s personal property, and the documents likewise cannot contain information subject to a personal attorney-client privilege since they are necessarily governmental records, see Exec. Order No. 13,526, § 1.2(1), 75 Fed. Reg. at 707.7 Thus, as the court of appeals emphasized, applicant’s “declassification argument” is a “red herring” because “declassifying an official document would not change its content or render it personal.” App. A at 19.

Then, in a footnote, DOJ notes that Trump has largely given up the Executive Privilege claims (though he appears to be asserting them before Cannon).

7 In the district court, applicant suggested that some of the seized records might be subject to executive privilege. E.g., D. Ct. Doc. 1, at 19; D. Ct. Doc. 58, at 7-11 (Aug. 31, 2022). But applicant all but abandoned that argument in the court of appeals, and the application does not even mention it. With good reason: Applicant has identified no authority for the suggestion that he could invoke executive privilege to prevent review of Executive Branch records by “the very Executive Branch in whose name the privilege is invoked,” Nixon v. Administrator of General Services, 433 U.S. 425, 447-448 (1977). And in any event, any such invocation would necessarily yield to the government’s “demonstrated, specific need for evidence” in its criminal investigation concerning the wrongful retention of those very documents and obstruction of its efforts to recover them. United States v. Nixon, 418 U.S. 683, 713 (1974). See App. D at 12-17.

This claim on privilege is one that SCOTUS might see on an appeal.

Again, little of this stuff would be before SCOTUS in substantive fashion any time soon. But they’re all the topics that the lower courts will be grappling with for the next several months until this comes back to SCOTUS (if it ever does). And this is what they’ll look like for SCOTUS’ first glimpse of them.

How Trump’s SCOTUS Appeal Shows Why He’s Got a Weaker Legal Argument than a [Former] Gitmo Detainee

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Trump has appealed the part of the 11th Circuit’s decision that ruled DOJ did not have to share classified documents as part of the Special Master process. Trump did not appeal the part of the decision lifting the stay on using the classified documents as part of the criminal investigation.

The parts of this pertaining to classified documents and Presidential authority are even more of a shit-show than the 11th Circuit response was, and for an audience that has actually considered these issues.

But parts of it are jurisdictional and would not be frivolous if this were simply a discovery dispute (as Chris Kise treats it), and not one pertaining to classified information. But it does pertain to classified records.

And that’s why I think this is the most important part of the argument. Trump attempts to dismiss the government’s argument that it could appeal Judge Cannon’s order that it share classified records with Judge Raymond Dearie and Trump.

In its reply before the Eleventh Circuit, the Government made a fleeting statement that orders to disclose classified information are immediately appealable as collateral orders. App. F at 10 (citing Mowhawk Indus., 558 U.S. at 113 n.4; Al Odah v. United States, 559 F.3d 539, 542–44 (D.C. Cir. 2009)). This assertion is without merit.

[snip]

In Al Odah, the Government appealed from an order granting defendant’s counsel access to unredacted “classified” information. 559 F.3d at 543. The District of Columbia Circuit, applying the Cohen test, determined it had jurisdiction to hear the appeal of the collateral order in that case. Id. at 543-44. However, the present case is distinguishable from Al Odah, primarily due to whom the “classified” or “privileged” documents are being disclosed. Unlike in Al Odah, where the unredacted classified documents were ordered to be disclosed to defendant’s counsel, here the materials in question will be provided to the Special Master—a Senior United States District Judge with years of FISA court experience. As Special Master, Judge Dearie will effectively act as an arm of the District Court. It can hardly be suggested that Judge Dearie’s review of these records is in any way akin to dissemination of previously unshared, unredacted, classified information to counsel for Guantanamo Bay detainees.

Additionally, the fact this dispute involves potential Presidential records14 creates a fundamental and significant distinction. Since any purported “classified records” may be Presidential records, President Trump (or his designee, including a neutral designee such as a special master) has an absolute right of access to same under the Presidential Records Act (“PRA”). 44 U.S.C. § 2205(3). Accordingly, President Trump (and, by extension, the Special Master) cannot in any event be denied access to those documents. Given this absolute right of access under the PRA, there is therefore no valid basis to preclude such review. Moreover, there cannot possibly be any valid claim of injury resulting from a statutorily authorized grant of access to a former President and/or his designee.

The Government argued on appeal, without explanation, that showing the purportedly classified documents to Judge Dearie would harm national security. App. D at 17. However, in seeking to stay the Injunction Order pending appeal, the Government then argued it needed to use those same documents to interview witnesses and submit to the grand jury. ECF No. 69 at 17. These positions cannot be reconciled.

14 Even the Government’s own Motion for Stay in the Eleventh Circuit acknowledged the obvious, that any purported “classified records” may be Presidential records. App. D at 10 [my emphasis]

At first, Trump argues that Cannon has not ordered DOJ to share classified records with anyone but Dearie. That’s false: She ordered DOJ to share classified records with Trump’s lawyers.

In fact, in the very next paragraph, Trump admits that Cannon’s order is worse to that in Al Odah a DC Circuit case decided per curiam by a panel including Merrick Garland. Fawzi Khalid Abdullah Fahad Al Odah was a plaintiff in a habeas petition — as an enemy combatant he hadn’t and never was charged with a crime — but he was challenging indefinite detention with inadequate due process. By comparison, Trump has not been charged and if and when he is charged, his lawyers will get to see the classified evidence against him. For now, he’s just a plaintiff and the record is uncontested that the warrant executed on his beach resort involved no gross abuse of his rights.

Without acknowledging that the claim Cannon only ordered DOJ to share with Dearie is false, Trump makes the argument that DOJ should have to share with Trump’s designees under the Presidential Records Act. As DOJ has already noted, of course, that’s only true of the records are where they are supposed to be: In the possession of the Archives. They’re not, and that’s part of the problem.

Another part of the problem is that, elsewhere in this appeal, Trump unquestioningly invokes EO 13526, which governed classified information for the entirety of his term and still does. As I’ve noted, that explicitly says even former Presidents must get waivers of Need to Know requirements to access classified information. Trump never changed that order before he became a former President.

In the next paragraph, Trump then complains that DOJ might complain about sharing all of this information with Dearie (and Trump’s lawyers) but might decide to share some of the information with witnesses. Again, elsewhere in this appeal, Trump unquestioningly invokes Navy v. Egan, which is the Supreme Court precedent that says the President — not the former President — gets to decide who needs access to classified information or not.

And nowhere in this argument do Trump’s lawyers admit something that DOJ laid out explicitly before the 11th Circuit: At least one of them, Evan Corcoran, is a witness or possibly even a co-conspirator (DOJ referred to his lawyers, plural, as potential witnesses, suggesting Lindsey Halligan (who was at Mar-a-Lago during the search) or Jim Trusty has had a role in the obstruction process as well. Of course, Trump also neglects to mention the obstruction part of the investigation, which makes all documents with classification marks proof that Trump defied a subpoena.

In other words, Trump is even more poorly situated than Al Odah, who at least had lawyers uninvolved in his potential security concerns. The only one of Trump’s lawyers who’s definitely not a witness, Kise, is also the one who recently was a registered agent of Venezuela.

As I keep saying in this matter, no one really knows how any of this will turn out. Trump’s argument that Ginni Thomas’ favorite President is no Gitmo detainee surely will work with Clarence, who will decide whether to take this appeal (or ask the entire court to weigh in). But along the way, Trump has compared himself unfavorably — legally, at least — with a former Gitmo detainee.

Update: This tweet thread from Steve Vladeck notes that Trump never describes what irreparable harm he faces if Dearie can’t review the classified records now.

Update: One more thing Trump doesn’t tell SCOTUS: That Judge Cannon has altered her own order, taking the classified documents out of it altogether, which makes Vladeck’s point about emergency relief even more hysterical.

Update: Justice Thomas has given the government a week to respond, which suggests even he doesn’t see this as the emergency it would have to be for SCOTUS to get involved.

Rule of Law: DOJ Obtained Trump’s Privilege-Waived Documents in May

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Last December, when the DC Circuit ruled that the Archives should share Donald Trump’s materials relating to January 6 with the January 6 Committee, it emphasized the “rare and formidable alignment of factors supports the disclosure of the documents at issue.”

On this record, a rare and formidable alignment of factors supports the disclosure of the documents at issue. President Biden has made the considered determination that an assertion of executive privilege is not in the best interests of the United States given the January 6th Committee’s compelling need to investigate and remediate an unprecedented and violent attack on Congress itself. Congress has established that the information sought is vital to its legislative interests and the protection of the Capitol and its grounds. And the Political Branches are engaged in an ongoing process of negotiation and accommodation over the document requests.

It likewise pointed to the careful attention (and month-long reviews) the Biden White House gave to each tranche of materials at issue.

Still, when the head of the Executive Branch lays out the type of thoroughgoing analysis provided by President Biden, the scales tilt even more firmly against the contrary views of the former President.

Judge Patricia Millet’s opinion even found that the due consideration Biden exercised was enough to reject Trump’s claim that the Presidential Records Act had given him “unfettered discretion to waive” his own Executive Privilege claim.

Lastly, former President Trump argues that, to the extent the Presidential Records Act is construed to give the incumbent President “unfettered discretion to waive former Presidents’ executive privilege,” it is unconstitutional. Appellant Opening Br. 47. There is nothing “unfettered” about President Biden’s calibrated judgment in this case.

Citing Mazars, the opinion also noted SCOTUS’ deference to information-sharing accommodations between the Political Branches, the Executive and Legislative Branches.

Weighing still more heavily against former President Trump’s claim of privilege is the fact that the judgment of the Political Branches is unified as to these particular documents. President Biden agrees with Congress that its need for the documents at issue is “compelling[,]” and that it has a “sufficient factual predicate” for requesting them. First Remus Ltr., J.A. 107; see also Third Remus Ltr., J.A. 173. As a result, blocking disclosure would derail an ongoing process of accommodation and negotiation between the President and Congress, and instigate an interbranch dispute.

The Supreme Court has emphasized the importance of courts deferring to information-sharing agreements wrestled over and worked out between Congress and the President. See Mazars, 140 S. Ct. at 2029, 2031.

In other words, the request of a coequal branch of government, made with the assent of the incumbent President, presented a very powerful legal case for sharing Trump’s January 6 records with Congress.

When the Supreme Court considered the question, only Ginni Thomas’ spouse disagreed (Brett Kavanaugh did attempt to limit the decision).

The courts may well have come to this same conclusion had Merrick Garland’s DOJ subpoenaed records from the Archives for its own investigation of Donald Trump directly. A “subpoena or other judicial process issued by a court of competent jurisdiction for the purposes of any civil or criminal investigation or proceeding” is one of the three exceptions the Presidential Records Act makes to the parts of the law that restrict access to the materials for a period after the President’s Administration.

But constitutionally, it would have been a very different legal and political question.

Importantly, the only way to obtain a privilege waiver from Biden in that situation would be to violate DOJ’s Contacts Policy that firewalls the White House from ongoing criminal investigations, and so the request would either have lacked that waiver from the incumbent President, or would risk politicizing the DOJ investigation.

The Biden White House’s strict adherence to that Contacts Policy is what allowed Karine Jean-Pierre to make a categorical denial of any advance warning of the search on Trump’s home and to use that as a reaffirmation of the rule of law last week.

She’ll probably get similar questions today, and make the same categorical denial of any White House knowledge.

All that is the predictable background to the NYT report that, after the January 6 Committee subpoenaed these records, and after the Archives gave both Presidents an opportunity to weigh in, and after the DC Circuit and Supreme Court ruled against Trump’s complaints, DOJ subpoenaed all the same material from the Archives themselves.

Federal prosecutors investigating the role that former President Donald J. Trump and his allies played in the events leading up to the Jan. 6, 2021, attack on the Capitol have issued a grand jury subpoena to the National Archives for all the documents the agency provided to a parallel House select committee inquiry, according to a copy of the subpoena obtained by The New York Times.

The subpoena, issued to the National Archives in May, made a sweeping demand for “all materials, in whatever form” that the archives had given to the Jan. 6 House committee. Those materials included records from the files of Mr. Trump’s top aides, his daily schedule and phone logs and a draft text of the president’s speech that preceded the riot.

While the NYT doesn’t say it, it seems likely that the Archives gave these already privilege-reviewed documents to prosecutor Thomas Windom with nary a squeak, and we’re just learning about it — indeed Trump may have just learned about it, which is where the subpoena probably came from — four months later. We’re just learning about it, importantly, after the FBI seized another 27 boxes of documents that Trump had refused to turn over to the Archives, including records (if you can believe Paul Sperry) pertinent to January 6.

When I predicted this would happen in December, I went out of my way to ask constitutional lawyers if they had another solution to the puzzle of getting Trump’s documents without violating that Contacts Policy, and no one even engaged with a question — how to overcome Executive Privilege — that had been a real problem for Robert Mueller, when he was investigating Donald Trump.

People will wail about the timing of this request and others, including the NYT, will falsely claim this is proof that DOJ is following the January 6 Committee.

Asking the National Archives for any White House documents pertaining to the events surrounding Jan. 6 was one of the first major steps the House panel took in its investigation. And the grand jury subpoena suggests that the Justice Department has not only been following the committee’s lead in pursuing its inquiry, but also that prosecutors believe evidence of a crime may exist in the White House documents the archives turned over to the House panel.

There were covert steps taken before that, including the (admittedly belated) request for call records at least a month earlier.

In addition, Justice Department investigators in April received phone records of key officials and aides in the Trump administration, including his former chief of staff, Mark Meadows, according to two people familiar with the matter.

And we’ve already seen proof that the fake electors investigation, at least, has pursued leads that the Committee had not yet made public before DOJ was including them in subpoenas.

Furthermore, the subpoena was issued before the Committee started its public hearings on June 9.

There are a couple of other notable details about this timing.

First, in addition to coming after the SCOTUS decision, this subpoena came after Mark Meadows and Ivanka made efforts to comply with the Presidential Records Act by providing the Archives copies of official business they conducted on their own email and Signal accounts. It also came after any responsive documents from the 15 boxes of records that Trump did provide to the Archives earlier this year were identified. DOJ made its request at a time when the Archives were more complete than they had been when the Committee started identifying big gaps in the records.

The only thing we know remains missing from those Archives (aside from documents seized last week) is Peter Navarro’s ProtonMail account, which DOJ sued to obtain earlier this month.

The Archives’ request also came after Trump had largely given up the effort to fight individual releases.

As NYT correctly noted, DOJ only issued this subpoena at a time when it was issuing other subpoenas (the fact of, but not the substance, of Brandon Straka’s cooperation had been made public in January, and Ali Alexander’s excuses for his actions at the Capitol had already been debunked in January after Owen Shroyer, who was arrested a year ago, made the very same excuses).

The subpoena was issued to the National Archives around the same time that it became publicly known that the Justice Department was looking beyond the rioters who were present at the Capitol and trying to assess the culpability of people who had helped organize pro-Trump rallies in Washington on Jan. 6. In the spring, for instance, Mr. Windom issued a grand jury subpoena to Ali Alexander, a prominent organizer of “Stop the Steal” events who complied by submitting records to prosecutors and testifying before the grand jury.

We don’t know what steps DOJ took before May (aside from those that have shown in cases like Straka’s). We do know that at that point, DOJ started taking overt steps that would build on previous covert ones. We also know that we keep learning about steps that DOJ took months ago, when people were wailing that they would know if DOJ had taken such steps.

I can’t prove that this was always the plan from the time, 375 days ago, when I first observed how DOJ was getting privilege waivers from Biden without violating their new Contacts Policy. I can’t prove it was the plan when I wrote an entire post in December about the puzzle of Executive Privilege waivers. I had no idea that DOJ was issuing that subpoena when I stated that it was probably doing so in May, the month it occurred.

We should assume the same kind of [synthesis with a Congressional investigation as happened with Mueller] is happening here. All the more so given the really delicate privilege issues raised by this investigation, including Executive, Attorney-Client, and Speech and Debate. When all is said and done, I believe we will learn that Merrick Garland set things up in July such that the January 6 Committee could go pursue Trump documents at the Archives as a co-equal branch of government bolstered by Biden waivers that don’t require any visibility into DOJ’s investigation. Privilege reviews covering Rudy Giuliani, Sidney Powell, and John Eastman’s communications are also being done. That is, this time around, DOJ seems to have solved a problem that Mueller struggled with. And they did so with the unsolicited help of the January 6 Committee.

What I can say with no doubt, though, is that Merrick Garland’s DOJ solved one of the most challenging constitutional problems facing an investigation of a former President. And it solved that problem months ago.

And no one knew about it.

emptywheel Trump Espionage coverage

Trump’s Timid (Non-Legal) Complaints about Attorney-Client Privilege

18 USC 793e in the Time of Shadow Brokers and Donald Trump

[from Rayne] Other Possible Classified Materials in Trump’s Safe

Trump’s Stolen Documents

John Solomon and Kash Patel May Be Implicated in the FBI’s Trump-Related Espionage Act Investigation

[from Peterr] Merrick Garland Preaches to an Overseas Audience

Three Ways Merrick Garland and DOJ Spoke of Trump as if He Might Be Indicted

The Legal and Political Significance of Nuclear Document[s] Trump Is Suspected to Have Stolen

Merrick Garland Calls Trump’s Bluff

Trump Keeps Using the Word “Cooperate.” I Do Not Think That Word Means What Trump Wants the Press To Think It Means

[from Rayne] Expected Response is Expected: Trump and Right-Wing DARVO

DOJ’s June Mar-a-Lago Trip Helps Prove 18 USC 793e

The Likely Content of a Trump Search Affidavit

All Republican Gang of Eight Members Condone Large-Scale Theft of Classified Information, Press Yawns

Some Likely Exacerbating Factors that Would Contribute to a Trump Search

FBI Executes a Search Warrant at 1100 S Ocean Blvd, Palm Beach, FL 33480

The ABCs (and Provisions e, f, and g) of the Espionage Act

Trump’s Latest Tirade Proves Any Temporary Restraining Order May Come Too Late

How Trump’s Search Worked, with Nifty Graphic

Pat Philbin Knows Why the Bodies Are Buried

Rule of Law: DOJ Obtained Trump’s Privilege-Waived Documents in May

Sam Alito Strips Women of their Bodily Autonomy [Updated]

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I won’t have much to say about the Sam Alito opinion taking away women’s right to bodily autonomy.

I will point to this concurring opinion from coup plotter Ginni Thomas’ spouse, calling to revisit same sex marriage and birth control.

For that reason, in future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell. Because any substantive due process decision is “demonstrably erroneous,” Ramos v. Louisiana, 590 U. S. ___, ___ (2020) (THOMAS, J., concurring in judgment) (slip op., at 7), we have a duty to “correct the error” established in those precedents, Gamble v. United States, 587 U. S. ___, ___ (2019) (THOMAS, J., concurring) (slip op., at 9). After overruling these demonstrably erroneous decisions, the question would remain whether other constitutional provisions guarantee the myriad rights that our substantive due process cases have generated. For example, we could consider whether any of the rights announced in this Court’s substantive due process cases are “privileges or immunities of citizens of the United States” protected by the Fourteenth Amendment. Amdt.

I guess he needs something to rile up the brownshirts going forward.

………………………………………………………………….

Okay, bmaz here with an add on update.

Okay, I have a couple things to add here. First, Marcy hit on exactly the most important thing today. We knew Alito’s opinion was coming, and we knew what it was going to be. But the Thomas part is terrifying. They are coming for all of it. Thomas wants the Supreme Court to overrule Griswold (right to contraception), Lawrence (right to same-sex intimacy), and Obergefell (right to same-sex marriage).

That is the whole kit and kaboodle. And make no mistake, this Coney Barrett court will give it to him. Stare decisis is officially dead. I know for a fact that the test cases for accomplishing this are already long in the works by a myriad of conservative groups in anticipation of today’s Dobbs decision. And that was even before the leak of Alito’s craven draft opinion. They knew it was coming after Amy Coney Barrett replaced RBG non the Court. They think ahead in ways that Democrats and their feckless octogenarian leadership never do.

Notable what prior decision Clarence Thomas did NOT call out. The Loving decision that allows his interracial marriage to the hideous Ginni Thomas. He conveniently stands mute on that one. Funny that.

And Justice Kavanaugh, in his concurring opinion, tries to preemptively declare that states cannot prohibit and prevent, and theoretically criminalize, interstate travel to obtain an abortion because of the constitutional right to interstate travel. I actually think that is right, so credit for trying Beer Boy. But that is not at all clear, because interstate travel is yet another right not specifically delineated in the Constitution, so is very much in the lurch under the Thomas attack discussed above. So that is not bankable in the least.

Second, back to the main force of today’s Dobbs decision, a lot of states have trigger laws that make the ban on abortions effective, or easily effective after certification, after this decision. Other states, like Arizona for instance, have statutes totally banning abortion still on their books, that are effective and can be enforced immediately. Today. This morning. Now. This is not something about to take effect, it is effective right now.

All in all, the Dobbs opinion puts all healthcare for women in peril, not “just” abortion. There is about no health issue a woman can face that cannot impinge on fertility or pregnancy. Southern and deeply red states either have already or in the process of creating laws that criminalizes medical professional in this regard. Some want the death penalty for it. It is hard to imagine that most citizens really grasp the hell the Supreme Court has unleashed today.

Maybe people should have listened to the Her Emails lady.

In Upholding His Decision to Rule “Otherwise” Than His Colleagues on Obstruction, Judge Nichols Worries [about] “Corruptly”

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While I was buried in the Michael Sussmann trial last Friday, former Clarence Thomas clerk Carl Nichols, issued a ruling denying the government’s request that he reconsider his earlier outlier ruling against DOJ’s application of 18 USC 1512(c)(2) to January 6.

Having only addressed one of his colleagues’ opinions in his initial order, in this one, Judge Nichols dismisses the unanimity of his colleagues in this go-around by pointing to the differences in their arguments.

1 The Court notes that those decisions reach the same conclusion but for different reasons. For example, some opinions do not consider the relevance of the word “otherwise” in the statute at all, see United States v. McHugh, (“McHugh I”), 2022 WL 296304, at *12 (D.D.C. Feb. 1, 2022) (omitting “otherwise” even from its quotation of the statute); others mention the word but essentially omit any serious discussion of it, see United States v. Nordean, 2021 WL 6134595, at *6-7 (D.D.C. Dec. 28, 2021); and others suggest that it presents the key interpretive question, United States v. McHugh, (“McHugh II”), 2022 WL 1302880, at *4 (D.D.C. May 2, 2022) (concluding “the meaning of ‘otherwise’ is central to the meaning of § 1512(c)(2)”). Other decisions appear to have concluded that § 1512(c)(1) acts as something of a carveout from § 1512(c)(2)’s otherwise broad terms, see United States v. Reffit, 2022 WL 1404247, at *8 (D.D.C. May 4, 2022), see also United States v. Sandlin, 2021 WL 5865006, at *5 (D.D.C. Dec. 10, 2021); United States v. Caldwell, 2021 WL 6062718, at *12 (D.D.C. Dec. 20, 2021), reconsideration denied, 2022 WL 203456 (D.D.C. Jan. 24, 2022); United States v. Mostofsky, 2021 WL 6049891, at *11 (D.D.C. Dec. 21, 2021); United States v. Bingert, 2022 WL 1659163, at *8–*9 (D.D.C. May 25, 2022), while others interpret “otherwise” to require a link between the subsections that is provided through the requirement that the illegal conduct be targeted at an “official proceeding,” see United States v. Montgomery, 2021 WL 6134591, at *12 (D.D.C. Dec. 28, 2021); United States v. Grider, 2022 WL 392307, at *5–6 (D.D.C. Feb. 9, 2022).

This is … just weird, though it may be intended to help someone like fellow Clarence Thomas alum DC Circuit judge Neomi Rao uphold his own opinion. The reason these opinions differ is because the defendants didn’t argue the same points — and just two of the opinions he cites address his own opinion.

Particularly given that, last year, Nichols explicitly asked whether this application of 1512 might apply to the former President — and the abundant evidence that Ginni Thomas might have exposure for obstructing democracy as well — I’m most interested in the long footnote in which Nichols complains that there are many ways one might obstruct the vote certification.

3 Other Judges in the District have concluded that the word “corruptly” limits the scope of § 1512(c)(2). See, e.g., Sandlin, 2021 WL 5865006, at *13; Final Jury Instructions, United States v. Reffitt, No. 21-cr-32, ECF No. 119, at 25 (“To act ‘corruptly,’ the defendant must use unlawful means or act with an unlawful purpose, or both.”); Montgomery, 2021 WL 6134591, at *21 (“The predominant view among the courts of appeals is that the ‘corruptly’ standard requires at least an ‘improper purpose’ and an ‘intent to obstruct.’ ”). But this limitation goes to the mens rea required by the statute; it does not limit the types of conduct that are made criminal. But see 18 U.S.C. § 1515(b) (defining “corruptly” in § 1505 as “acting with an improper purpose” but specifically “including” only acts with an evidentiary nexus); United States v. Poindexter, 951 F.2d 369, 385 (D.C. Cir. 1991) (interpreting “corruptly” in a transitive sense, requiring acts directed towards others). And much like the different opinions on the scope of the statute, see supra note 1, while all Judges to have considered the issue have concluded that the statute’s use of the term “corruptly” does not render it unconstitutionally vague, those decisions have not landed on a consistent approach. For example, some have suggested that “corruptly” means acting “voluntarily and intentionally to bring about an unlawful result or a lawful result by some unlawful method, with hope or expectation of . . . [a] benefit to oneself or a benefit to another person,” Montgomery, 2021 WL 6134591 at *22 n.5 (quoting Aguilar, 515 U.S. at 616–17 (Scalia, J., concurring in part and dissenting in part)), while others have suggested it means, at least, acting with “consciousness of wrongdoing.” Bingert, 2022 WL 1659163, at *6 (quoting Arthur Anderson LLP v. United States, 544 U.S. 696, 706 (2005)). In any event, the government has not argued that “corruptly” meaningfully clarifies or limits the conduct charged in the Indictment here. Although the Court does not now interpret “corruptly” as used in § 1512(c), the Court concludes that the common meanings of “corruptly” are sufficiently capacious so as not to limit or clarify the actus reus charged in the Indictment.

Nichols is not wrong to lay out these distinctions. I’ve done so myself! But there’s no reason to believe that the most circumscribed of the opinions — Dabney Friedrich’s holding that applied just to conduct that included otherwise illegal activities — couldn’t provide a common baseline for all the decisions.

Plus, his citation to Poindexter, which has been addressed legislatively in any case, seems to concede his point.

The opinion feels strained and may not sustain review as a dismissal at the motion to dismiss stage.

But along the way Nichols is saying quite a bit about corruption.

Other 1512 opinions

  1. Dabney Friedrich, December 10, 2021, Sandlin*
  2. Amit Mehta, December 20, 2021, Caldwell*
  3. James Boasberg, December 21, 2021, Mostofsky
  4. Tim Kelly, December 28, 2021, Nordean; May 9, 2022, Hughes (by minute order), rejecting Miller
  5. Randolph Moss, December 28, 2021, Montgomery
  6. Beryl Howell, January 21, 2022, DeCarlo
  7. John Bates, February 1, 2022, McHugh; May 2, 2022 [on reconsideration]
  8. Colleen Kollar-Kotelly, February 9, 2022, Grider
  9. Richard Leon (by minute order), February 24, 2022, Costianes; May 26, 2022, Fitzsimons (post-Miller)
  10. Christopher Cooper, February 25, 2022, Robertson
  11. Rudolph Contreras, announced March 8, released March 14, Andries
  12. Paul Friedman, March 19, Puma
  13. Thomas Hogan, March 30, Sargent (opinion forthcoming)
  14. Trevor McFadden, May 6, Hale-Cusanelli
  15. Royce Lamberth, May 25, Bingert

DOJ’s Reply Motion for Carl Nichols’ Reconsideration on 1512: Other Judge Other Judges Other Judges

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I’ve written two posts on former Clarence Thomas clerk Carl Nichols’ outlier ruling rejecting DOJ’s use of 18 USC 1512(c)(2) to January 6. (one, two)

Yesterday, they submitted their reply motion. It reads like this:

Reconsideration of the substantive ruling in Miller is appropriate because that ruling is inconsistent with decisions from every other judge on this Court to have considered the issue. That inconsistency means proving a violation of Section 1512(c)(2) requires additional facts in this case (and other Section 1512(c)(2) cases in front of this Court) but not in any case before any of the other judges of this Court. Moreover, with one exception, the Court’s ruling in Miller did not address the opinions from other judges of this Court, some of whom have explicitly disagreed with this Court after Miller issued.

[snip]

As noted in the government’s reconsideration motion, every other judge of this Court to consider this issue has concluded that Section 1512(c)(2) “prohibits obstruction by means other than document destruction.” United States v. Sandlin, No. 21-cr-88, 2021 WL 5865006, at *5 (D.D.C. Dec. 10, 2021) (Friedrich, J.); see ECF 75 at 5-6 (citing cases). At the time the reconsideration motion was filed, one judge had disagreed with Miller in a footnote, United States v. Puma, 21-cr-454, 2022 WL 823079, at *12 n.4 (D.D.C. Mar. 19, 2022) (Friedman, J.), and another judge indicated her disagreement with Miller orally when delivering a “brief ruling” denying a defendant’s post-trial motion for judgment of acquittal, see United States v. Reffitt, 21-cr-32, Trial Tr. 1498, 1502-05 (Mar. 8, 2022) (Friedrich, J.) (attached as Exhibit A to the reconsideration motion). Since the reconsideration motion was filed, judges have continued to reject Miller’s reasoning. See, e.g., United States v. Hughes, No. 21-cr-106, Minute Order denying motion to dismiss count charging Section 1512 (D.D.C. May 9, 2022) (Kelly, J.) (rejecting the “narrow reading” of Section 1512(c)(2) and agreeing with an opinion that “directly responded to and rejected the logic employed in Miller”); United States v. Hale-Cusanelli, No. 21-cr-37, Transcript of motion to dismiss hearing at 4-8 (D.D.C. May 6, 2022) (McFadden, J.)(attached as Exhibit D);United States v. Reffitt, No. 21-cr-32, 2022 WL 1404247, at *7-*10 (D.D.C. May 4, 2022) (Friedrich, J.); United States v. McHugh, No. 21-cr-453, 2022 WL 1302880, at *2-*13 (D.D.C. May 2, 2022) (Bates, J). Although none of those rulings represents “controlling law,” McAllister v. District of Columbia, 53 F. Supp. 3d 55, 59 (D.D.C. 2014) (internal quotation marks omitted), it is surely “significant” that this Court stands as the sole outlier among all the judges on this Court to have ruled on the issue both before and after Miller issued.

Two related factors militate in favor of reconsideration of the Court’s substantive conclusion about the scope of Section 1512(c)(2). First, the Court in Miller addressed only one of the contrary opinions from judges on this Court. See Mem. Op. 16, 18 n.8, 22, 26 (citing United States v. Montgomery, No. 21-cr-46, 2021 WL 6134591(D.D.C. Dec. 28, 2021)). Reconsideration would permit the Court the opportunity to consider in full the “persuasive authority” issued by other judges of this Court. See United States v. Drummond, 98 F. Supp. 2d 44, 50 n.5 (D.D.C. 2000) (noting that within-Circuit district court cases are not binding but “[o]f course” are “persuasive authority”). Second, reconsideration resulting in an interpretation consistent with other judges of this Court would ensure that all defendants charged under Section 1512(c)(2) are treated alike until the court of appeals has an opportunity on post-conviction review to consider the merits of their challenges to the statute’s scope.

[snip]

Second, Miller argues (Opp. 10-18) that the government “misunderstands” (id. at 10) this Court’s textual analysis of Section 1512(c)(2). But the issue is not one of misapprehension; rather, the government (and every other judge on this Court to have considered the issue) understands but disagrees with the Court’s (and Miller’s) interpretation of Section 1512(c)(2)’s reach. [my emphasis]

It uses Garret Miller’s response to implicitly attack Carl Nichols and emphasize the degree to which even Nichols’ Trump appointed colleagues — first Dabney Friedrich, then Tim Kelly, and finally, the judge most likely to agree with Nichols, Trevor McFadden — have disagreed with Nichols’ thinking.

Guy Reffitt’s prosecution is now ripe for appeal, if he still plans on doing that. Or Nichols will choose to adhere to his outlier opinion.

Here’s the current tally on obstruction opinions, with McFadden added.

  1. Dabney Friedrich, December 10, 2021, Sandlin*
  2. Amit Mehta, December 20, 2021, Caldwell*
  3. James Boasberg, December 21, 2021, Mostofsky
  4. Tim Kelly, December 28, 2021, Nordean; May 9, 2022, Hughes (by minute order), rejecting Miller
  5. Randolph Moss, December 28, 2021, Montgomery
  6. Beryl Howell, January 21, 2022, DeCarlo
  7. John Bates, February 1, 2022, McHugh; May 2, 2022 [on reconsideration]
  8. Colleen Kollar-Kotelly, February 9, 2022, Grider
  9. Richard Leon (by minute order), February 24, 2022, Costianes; May 26, 2022, Fitzsimons (post-Miller)
  10. Christopher Cooper, February 25, 2022, Robertson
  11. Rudolph Contreras, announced March 8, released March 14, Andries
  12. Paul Friedman, March 19, Puma
  13. Thomas Hogan, March 30, Sargent (opinion forthcoming)
  14. Trevor McFadden, May 6, Hale-Cusanelli
  15. Royce Lamberth, May 25, Bingert

Six Weeks: The Tactics of Sammy Alito’s Abortion

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Last night, Politico published a February 10 draft opinion in the Dobbs case, authored by Sam Alito, that overturns Roe and Casey entirely. I’ll leave it to experts to analyze the opinion. For my purposes, it matters only that it is legally and historically shoddy (meaning, Alito didn’t even care about making a convincing argument before taking away constitutional protections), and that it would also permit states to roll back protections for gay rights, contraception, and privacy generally.

I’d like to talk about tactics.

This leaked draft opinion, while not unprecedented, is almost that momentous. But the leak of the draft will in no way affect abortion access after June in any case. Since the oral argument, there was never a doubt that Casey, at least, was going to be effectively overturned. The only suspense, then, and now, concerned the scope of rights the Supreme Court eliminated and how John Roberts will vote.

The most hackish five justices support the Alito argument. And — in CNN reporting that is almost as important as the Politico leak — John Roberts would have voted to uphold Mississippi’s sharp restrictions on abortion in any case.

CNN legal analyst and Supreme Court biographer Joan Biskupic reported late Monday that Chief Justice John Roberts did not want to completely overturn Roe, meaning he would have dissented from part of Alito’s draft opinion, likely with the top bench’s three liberals.
That would still give the conservatives a 5-4 majority on the issue.

Roberts is willing, however, to uphold the Mississippi law that would ban abortion at 15 weeks of pregnancy, CNN has learned. Under current law, government cannot interfere with a woman’s choice to terminate a pregnancy before about 23 weeks, when a fetus could live outside the womb.

CNN’s report suggests this leak more likely came from Roberts’ chambers than the most likely other source, Stephen Breyer’s. The most logical explanation for the leak is that Roberts is trying to get his colleagues to adopt a less radical opinion. And if that’s the purpose, it might have the desired effect, both by making it clear what a shit-show the original Alito opinion will set off, but also by exposing the opinion itself to the ridicule and contempt it, as written, deserves.

But that doesn’t change the fact that in one way or another, the national protection for access to abortion is gone by the end of the SCOTUS term next month.

So those who support equality for women (and LGBTQ rights, and privacy generally) should consider this leaked draft as an opportunity to use the next six weeks — assume the final opinion will be released in mid-June — to lay the groundwork for what comes next. Symbolically, those who support equality for women (and LGBTQ people) now have about as long as many states will permit abortions to do something to protect the right to abortion (and to marry who you love) going forward.

It’s not clear how overturning abortion access or the early release of this opinion will affect politics going forward. I can certainly see it driving the plurality of Republicans who support such a radical stance. I can also see this decision being decisive in defeating some anti-choice Senate candidates and maybe, because this was released before the run-off, the remaining anti-choice Democrat, Henry Cuellar. Gavin Newsom has already talked about adding abortion to California’s constitution, and California might not be the only such state. Perhaps it is not too late to find a way to put reproductive rights on the ballot as a referendum (though I assume it is). Certainly, this is way to make abortion support a litmus test for state-wide elections.

Certainly, this decision raises the stakes of Brett Kavanaugh’s lies in his confirmation and Clarence Thomas’ implication in his wife’s participation in a coup attempt.

Democrats are talking about abolishing the filibuster to pass abortion rights, but there’s no indication they have 51 votes to pass it. Maybe this would change things?

But there are other ways to mobilize what is a solid majority (including most large corporations) in the United States to undercut this decision, and possibly to change the tenor of politics in this country. Americans believe that women and gays (at least) should be treated as equals. A radical minority disagrees.

Use the next six weeks to figure out how to isolate them as a radical minority.

Update: Noted that this opinion will just end national protections on abortion access.

Update: Roberts is ordering an investigation, suggesting he is not aware of the leaker’s identity. Others have made persuasive arguments that this is from one of the radicals, attempting to keep the five vote majority.

This Is Not How You Wield Power: Toxic Punditry’s Lack of Self Awareness

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[NB: check the byline, thanks. /~Rayne]

This is complete and utter bullshit:

We all know asking Justice Clarence Thomas to recuse himself is merely pissing into the wind. Congressional Democrats are obligated to ask this of him but they know Thomas is corrupt and won’t give the demand a second thought.

What’s bullshit, though, is MSNBC’s Mehdi Hasan and Ayman Mohyeldin ripping into House Speaker Nancy Pelosi about a request by Democrats to Thomas for his recusal on cases related to the January 6 insurrection.

We all know as well the real problem is that Thomas should be removed from the Supreme Court. Pelosi was absolutely correct saying that Thomas should never have been approved as a SCOTUS jurist to begin with. His failure to report his spouse’s income appropriately — particularly Ginni Thomas’s income from her nonprofit — during the lead up to the 2010 Citizens United v. FEC decision was unacceptable, as was his meeting with the Koch brothers.

But the House had absolutely nothing to do with Thomas being approved in the first place. The Senate is responsible for review of nominees to the Supreme Court and their approval.

We all know, too, that the House may impeach jurists, but they cannot be removed without a two-thirds vote for conviction by the Senate.

And in this case, a Senate which is only nominally held by Democrats. They couldn’t convict and remove Trump twice after impeachment for the same reason — an inadequate number of Democrats in the Senate.

Where is this power that Hasan and Mohyeldin think Pelosi has as House Speaker when she cannot remove Thomas? Why are they insisting she launch a war she can’t win? (We can see how that works out for Putin in Ukraine.)

All these two boneheaded pundits (and others making the same argument like them) are doing is misogynist pontificating when they know it’s the Senate which can force the issue and only if there were two-thirds of the Senate willing to vote to convict Thomas for his continued corrupt practices.

Yet you don’t see pundits like Hasan and Mohyeldin going after Senate Majority Leader Chuck Schumer. Nope.

Why is that?

~ ~ ~

They’re literally filling empty air time with useless crap which only serves to damage the public’s opinion of House Democrats — the portion of government which has most reliably served the needs of the people during the Biden administration while the Senate obstructs its efforts.

They’re directly contributing to and amplifying the same poisoning of public opinion already performed by right-wing media outlets Fox News, Newsmax, and OAN, grossly distorting the public’s perception of US government.

It’s right there in front of their noses and they don’t see it:

Hello, Sam Stein, who’s with both MSNBC and Politico? You’re not doing a very good job breaking through to the public if they believe the complete opposite of the truth.

Dan Froomkin elaborated on media’s failures with help from Dean Baker; public opinion about employment is particularly telling.

An additional 21 percent didn’t know one way or the other. Only 28 percent said, correctly, that jobs were created. Less than half of those — only 12 percent — knew that it was more jobs created than in any other year in history.

Similarly, only 19 percent said they thought the U.S. economy experienced more job growth than normal in the past year. The plurality – 35 percent – said they thought more jobs were lost than usual, which is of course spectacularly wrong.

Media figures go out of their way to make sure something looks like it’s on fire or bleeding, so much so that it’s a joke.

But sure, keep beating on House Speaker Pelosi because that will effect the change needed as will pissing into the wind.

~ ~ ~

A pre-print study found that it’s not solely the public at fault when it comes to misperception — it’s not purely partisanship which mis- or disinforms their opinions.

A key problem is the business model: audience members’ understanding and opinions could be shaped by exposure to media, if media bought their time.

Unfortunately, cable and broadcast news don’t pay their viewers. They rely on advertising and subscription volume; their programming becomes little more than reductive clickbait fighting for audience attention. They’ll run the inflammatory material which skews public opinion the wrong way because good news is boring.

It makes sense, and yet the answer to running content which is both more attention-grabbing and -retaining to viewers and the ethically responsible content to run is right there under their noses.

Assuming, of course, the media outlets aren’t forcing their pundit-anchor class to promote corporatism über alles.

Why aren’t programs like Hasan’s and Mohyeldin’s contacting every goddamned Senator and putting them on the record one at a time on camera about their position on Thomas’s failure to recuse himself and whether they would vote to convict him if impeached for abuse of his office as jurist?

I’d pay to watch them squirm. I’d pay to watch Senators’ chiefs of staff run away from mics to avoid answering.

I’d pay to watch them ask Josh Hawley, Ted Cruz, and Tommy Tuberville if Thomas should recuse himself on any lawsuit in which they may be named as co-conspirators because Thomas’s wife Ginni sided with Hawley and Cruz on overturning or obstructing the election…and was it obstruction of Congress or overturning an election in which they had been encouraged to participate?

That’d be Must-See TV.

~ ~ ~

The other person who gets off lightly all the damn time to the point every media outlet forgets he exists: Chief Justice John Roberts.

He’s the administrative leader of SCOTUS. Every decision made during his tenure will be attributed to the Roberts’ court.

Clarence Thomas’s unmitigated corruption including the damage to democracy Thomas’s role in Citizen United played is the product of Roberts’ court.

The lack of a self-imposed binding code of conduct is Roberts’ failure. Thomas’s refusal to recuse himself from January 6 cases which may be decided by SCOTUS is also his failure.

The lack of legislation requiring a SCOTUS code of conduct with adequate teeth to ensure enforcement is Congress’s fault, but primary responsibility is that of the Senate. In its absence Roberts could administer his court in a way which enforces judicial ethics.

Why wasn’t Roberts a subject of Hasan’s and Mohyeldin’s critique when Roberts clearly has the power to rein in corruption among his jurists?

~ ~ ~

But the real power to which Hasan and Mohyeldin deliberately turned a blind eye wasn’t Nancy Pelosi’s as House Speaker.

It wasn’t even Chuck Schumer’s, or John Roberts’ power.

That pre-print study says it’s their own. How convenient these media figures with a bully pulpit have a handy favorite punching bag to use as clickbait, redirecting attention away from their own failures as media figures with sizable audiences whose perception they shape.

By the way, you have power, too. You should be exercising it by calling your representative and senators and demanding legislation to implement a code of ethical judicial conduct for the Supreme Court (since Roberts appears unable or unwilling to produce one), and impeachment and conviction of Clarence Thomas for his lack of ethics as a jurist.

Congressional switchboard: (202) 224-3121

On Ginni Thomas’ Obstruction Exposure and Clarence’s Former Clerk, Carl Nichols

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In a motions hearing for January 6 assault defendant Garret Miller on November 22, former Clarence Thomas clerk Carl Nichols asked the appellate prosecutor for the January 6 investigation, James Pearce, whether someone asking Mike Pence to invalidate the vote count could be charged with the obstruction statute, 18 USC 1512(c)(2), that Miller was challenging. Pearce replied that the person in question would have to know that such a request of the Vice President was improper.

At a hearing on Monday for defendant Garret Miller of Richardson, Texas, Nichols made the first move toward a Trump analogy by asking a prosecutor whether the obstruction statute could have been violated by someone who simply “called Vice President Pence to seek to have him adjudge the certification in a particular way.” The judge also asked the prosecutor to assume the person trying to persuade Pence had the “appropriate mens rea,” or guilty mind, to be responsible for a crime.

Nichols made no specific mention of Trump, who appointed him to the bench, but the then-president was publicly and privately pressuring Pence in the days before the fateful Jan. 6 tally to decline to certify Joe Biden’s victory. Trump also enlisted other allies, including attorney John Eastman, to lean on Pence.

An attorney with the Justice Department Criminal Division, James Pearce, initially seemed to dismiss the idea that merely lobbying Pence to refuse to recognize the electoral result would amount to the crime of obstructing or attempting to obstruct an official proceeding.

“I don’t see how that gets you that,” Pearce told the judge.

However, Pearce quickly added that it might well be a crime if the person reaching out to Pence knew the vice president had an obligation under the Constitution to recognize the result.

“If that person does that knowing it is not an available argument [and is] asking the vice president to do something the individual knows is wrongful … one of the definitions of ‘corruptly’ is trying to get someone to violate a legal duty,” Pearce said.

At the time (as Josh Gerstein wrote up in his piece), we knew that former Clarence Thomas clerk John Eastman had pressured Pence to throw out legal votes.

But we’ve since learned far more details about Eastman’s actions, including his admissions to Pence’s counsel, Greg Jacob, that there was no way SCOTUS would uphold the claim. In fact, those admissions were cited in Judge David Carter’s opinion finding that Eastman himself likely obstructed the vote count by pressuring Pence to reject the valid votes, because he knew that not even Clarence Thomas would buy this argument.

Ultimately, Dr. Eastman conceded that his argument was contrary to consistent historical practice,37 would likely be unanimously rejected by the Supreme Court,38 and violated the Electoral Count Act on four separate grounds.39

[snip]

Dr. Eastman himself repeatedly recognized that his plan had no legal support. In his discussion with the Vice President’s counsel, Dr. Eastman “acknowledged” the “100 percent consistent historical practice since the time of the Founding” that the Vice President did not have the authority to act as the memo proposed.254 More importantly, Dr. Eastman admitted more than once that “his proposal violate[d] several provisions of statutory law,”255 including explicitly characterizing the plan as “one more relatively minor violation” of the Electoral Count Act.256 In addition, on January 5, Dr. Eastman conceded that the Supreme Court would unanimously reject his plan for the Vice President to reject electoral votes.257 Later that day, Dr. Eastman admitted that his “more palatable” idea to have the Vice President delay, rather than reject counting electors, rested on “the same basic legal theory” that he knew would not survive judicial scrutiny.258

We’ve also learned more details about Ginni Thomas’ role in pressuring Mark Meadows to champion an attempt to steal the election, including — after a gap in the texts produced to the January 6 Committee — attacking Pence.

The committee received one additional message sent by Thomas to Meadows, on Jan. 10, four days after the “Stop the Steal” rally Thomas said she attended and the deadly attack on the Capitol.

In that message, Thomas expresses support for Meadows and Trump — and directed anger at Vice President Mike Pence, who had refused Trump’s wishes to block the congressional certification of Biden’s electoral college victory.

“We are living through what feels like the end of America,” Thomas wrote to Meadows. “Most of us are disgusted with the VP and are in listening mode to see where to fight with our teams. Those who attacked the Capitol are not representative of our great teams of patriots for DJT!!”

“Amazing times,” she added. “The end of Liberty.”

Ginni Thomas famously remains close with a network of Clarence’s former clerks, so much so she apologized to a listserv of former Justice Thomas clerks for her antics after the insurrection.

Any former Thomas clerk on that listserv would likely understand how exposed in efforts to overturn the vote certification Ginni was.

As I said, little of that was known, publicly, when former Justice Thomas clerk Carl Nichols asked whether someone who pressured Pence could be exposed for obstruction. We didn’t even, yet, know all these details when Judge Nichols ruled in Miller’s case on March 7, alone thus far of all the DC District judges, against DOJ’s application of that obstruction statute. While we had just learned some of the details about Jacobs’ interactions with former Thomas clerk John Eastman, we did not yet know how centrally involved Ginni was — frankly, we still don’t know, especially since the texts Mark Meadows turned over to the January 6 Committee have a gap during the days when Eastman was most aggressively pressuring Pence.

DOJ may know but if it does it’s not telling.

But now we know more of those details and now we know that Judge Carter found that Eastman and Trump likely did obstruct the vote certification. All those details, combined with Nichols’ treatment of the Miller decision as one that might affect others, up to and including Ginni Thomas and John Eastman and Trump, sure makes it look a lot more suspect that a former Clarence Thomas clerk would write such an outlier decision.

Which brings us to the tactics of this DOJ motion to reconsider filed yesterday in the Miller case. It makes two legal arguments and one logical one.

As I laid out here, Nichols ruled that the vote certification was an official proceeding, but that the statute in question only applied to obstruction achieved via the destruction of documents. He also held that there was sufficient uncertainty about what the statute means that the rule of lenity — basically the legal equivalent of “tie goes to the runner” — would apply.

DOJ challenged Nichols’ claim that there was enough uncertainty for the rule of lenity to apply. After all, the shade-filled motion suggested, thirteen of Nichols’ colleagues have found little such uncertainty.

First, the Court erred by applying the rule of lenity. Rejecting an interpretation of Section 1512(c)(2)’s scope that every other member of this Court to have considered the issue and every reported case to have considered the issue (to the government’s knowledge) has adopted, the Court found “serious ambiguity” in the statute. Mem. Op. at 28. The rule of lenity applies “‘only if, after seizing everything from which aid can be derived,’” the statute contains “a ‘grievous ambiguity or uncertainty,’” and the Court “‘can make no more than a guess as to what Congress intended.’” Ocasio v. United States, 578 U.S. 282, 295 n.8 (2016) (quoting Muscarello v. United States, 524 U.S. 125, 138-39 (1998)) (emphasis added); see also Mem. Op. at 9 (citing “‘grievous’ ambiguity” standard). Interpreting Section 1512(c)(2) consistently with its plain language to reach any conduct that “obstructs, influences, or impedes” a qualifying proceeding does not give rise to “serious” or “grievous” ambiguity.

[snip]

First, the Court erred by applying the rule of lenity to Section 1512(c)(2) because, as many other judges have concluded after examining the statute’s text, structure, and history, there is no genuine—let alone “grievous” or “serious”—ambiguity.

[snip]

Confirming the absence of ambiguity—serious, grievous, or otherwise—is that despite Section 1512(c)(2)’s nearly 20-year existence, no other judge has found ambiguity in Section 1512(c)(2), including eight judges on this Court considering the same law and materially identical facts. See supra at 5-6.

[snip]

Before this Court’s decision to the contrary, every reported case to have considered the scope of Section 1512(c)(2), see Gov’t Supp. Br., ECF 74, at 7-9, 1 and every judge on this Court to have considered the issue in cases arising out of the events at the Capitol on January 6, 2021, see supra at 5-6, concluded that Section 1512(c)(2) “prohibits obstruction by means other than document destruction.” Sandlin, 2021 WL 5865006, at *5. [my emphasis; note, not all of the 13 challenges to 1512(c)(2) that were rejected made a rule of lenity argument, which is why AUSA Pearce cited eight judges]

Among the other things that this argument will force Nichols to do if he wants to sustain his decision, on top of doubling down on being the extreme outlier on this decision, is to engage with all his colleagues’ opinions rather than (as he did in his original opinion) just with Judge Randolph Moss’.

The government then argued that by deciding that 1512(c)(2) applied to the vote certification but only regarding tampering with documents, Nichols was not actually ruling against DOJ, because he can only dismiss the charge at this stage if the defendant, Miller, doesn’t know what he is charged with, not if the evidence wouldn’t support such a charge.

Although Miller has styled his challenge to Section 1512(c)(2)’s scope as an attack on the indictment’s validity, the scope of the conduct covered under Section 1512(c)(2) is distinct from whether Count Three adequately states a violation of Section 1512(c)(2).6 Here, Count Three of the indictment puts Miller on notice as to the charges against which he must defend himself, while also encompassing both the broader theory that a defendant violates Section 1512(c)(2) through any corrupt conduct that “obstructs, impedes, or influences” an official proceeding and the narrower theory that a defendant must “have taken some action with respect to a document,” Mem. Op. at 28, in order to violate Section 1512(c)(2). The Court’s conclusion that only the narrower theory is a viable basis for conviction should not result in dismissal of Count Three in full; instead, the Court would properly enforce that limitation by permitting conviction on that basis alone.

The government argues that that means, given Nichols’ ruling, the government must be given the opportunity to prove that Miller’s actions were an attempt to spoil the actual vote certifications that had to be rushed out of the Chambers as mobsters descended.

Even assuming the Court’s interpretation of Section 1512(c)(2) were correct, and that the government therefore must prove “Miller took some action with respect to a document, record, or other object in order to corruptly obstruct, impede[,] or influence Congress’s certification of the electoral vote,” Mem. Op. at 29, the Court cannot determine whether Miller’s conduct meets that test until after a trial, at which the government is not limited to the specific allegations in the indictment. 7 And at trial, the government could prove that the Certification proceeding “operates through a deliberate and legally prescribed assessment of ballots, lists, certificates, and, potentially, written objections.” ECF 74, at 41. For example, evidence would show Congress had before it boxes carried into the House chamber at the beginning of the Joint Session that contained “certificates of votes from the electors of all 50 states plus the District of Columbia.” Reffitt, supra, Trial Tr. at 1064 (Mar. 4, 2022) (testimony of the general counsel to the Secretary of the United States Senate) (attached as Exhibit B).

Those are the two legal arguments the government has invited Nichols to reconsider.

But along the way of making those arguments, DOJ pointed out the absurd result dictated by Nichols’ opinion: That Guy Reffitt’s physical threats against members of Congress or the threat Miller is accused of making against Alexandria Ocasio-Cortez would not be obstruction, because neither man touched any documents.

Any such distinction between these forms of obstruction produces the absurd result that a defendant who attempts to destroy a document being used or considered by a tribunal violates Section 1512(c) but a defendant who threatens to use force against the officers conducting that proceeding escapes criminal liability under the statute.

[snip]

Finally, an interpretation of Section 1512(c)(2) that imposes criminal liability only when an individual takes direct action “with respect to a document, record, or other object” to obstruct a qualifying proceeding leads to absurd results. See United States v. X-Citement Video, Inc., 513 U.S. 64, 69 (1994) (rejecting interpretation of a criminal statute that would “produce results that were not merely odd, but positively absurd”). That interpretation would appear, for example, not to encompass an individual who seeks to “obstruct[], influence[], or impede[]” a congressional proceeding by explicitly stating that he intends to stop the legislators from performing their constitutional and statutory duties to certify Electoral College vote results by “drag[ging] lawmakers out of the Capitol by their heels with their heads hitting every step,” United States v. Reffitt, 21-cr-32 (DLF), Trial Tr. 1502, carrying a gun onto Capitol grounds, id. at 1499, and then leading a “mob and encourag[ing] it to charge toward federal officers, pushing them aside to break into the Capitol,” id. at 1501-02, unless he also picked up a “document or record” related to the proceeding during that violent assault. The statutory text does not require such a counterintuitive result.

The mention of Reffitt is surely included not just to embarrass Nichols by demonstrating the absurdity of his result. It is tactical.

Right now, there are two obstruction cases that might be the first to be appealed to the DC Circuit. This decision, or Guy Reffitt’s conviction, including on the obstruction count.

By asking Nichols to reconsider, DOJ may have bought time such that Reffitt will appeal before they would appeal Nichols’ decision. But by including language about Reffitt’s threats to lawmakers, DOJ has ensured not just the Reffitt facts and outcome will be available if and when they do appeal, but so would (if they are forced to appeal this decision) a Nichols decision upholding the absurd result that Reffitt didn’t obstruct the vote certification. Including the language puts him on the hook for it if he wants to force DOJ to appeal his decision.

I said in my post on Nichols’ opinion that DOJ probably considered themselves lucky that Nichols had argued for such an absurd result.

They may count themselves lucky that this particular opinion is not a particularly strong argument against their application. Nichols basically argues that intimidating Congress by assaulting the building is not obstruction of what he concedes is an official proceeding.

By including Reffitt in their motion for reconsideration, DOJ has made it part of the official record if and when they do appeal Nichols’ decision.

This would be a dick-wagging filing even absent the likelihood that Nichols has some awareness of Ginni Thomas’ antics and possibly even Eastman’s. It holds Nichols to account for blowing off virtually all the opinions of his colleagues, including fellow Trump appointees Dabney Friedrich and Tim Kelly, forcing him to defend his stance as the outlier it is.

But that is all the more true given that there’s now so much public evidence that Nichols’ deviant decision might have some tie to his personal relationship with the Thomases and even the non-public evidence of Ginni’s own role.

Plus, by making any appeal of this opinion — up to the Supreme Court, possibly — pivot on how and why Nichols came up with such an outlier opinion, it would make Justice Thomas’ participation in the decision far more problematic.

Carl Nichols, March 7, 2022, Miller

David Carter, March 28, 2022, Eastman

Opinions upholding obstruction application:

  1. Dabney Friedrich, December 10, 2021, Sandlin
  2. Amit Mehta, December 20, 2021, Caldwell
  3. James Boasberg, December 21, 2021, Mostofsky
  4. Tim Kelly, December 28, 2021, Nordean
  5. Randolph Moss, December 28, 2021, Montgomery
  6. Beryl Howell, January 21, 2022, DeCarlo
  7. John Bates, February 1, 2022, McHugh
  8. Colleen Kollar-Kotelly, February 9, 2022, Grider
  9. Richard Leon (by minute order), February 24, 2022, Costianes
  10. Christopher Cooper, February 25, 2022, Robertson
  11. Rudolph Contreras, announced March 8, released March 14, Andries
  12. Paul Friedman, March 19, Puma