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Emil Bove Calls Resignation in Face of Unethical Order “Misconduct”

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Unsurprisingly, in his amicus filing, Paul Clement strongly recommended that Judge Dale Ho should dismiss the Eric Adams prosecution with prejudice. The most remarkable thing about Clement’s memorandum, as first noted by Josh Gerstein, is that Clement did not mention the Mike Flynn case, even while making claims directly undermined by it. (Adams’ own filing mentions Neomi Rao’s dissent in Flynn, and Emil Bove invoked it inaptly to say that because the amicus in Flynn did not seek discovery, it means no amicus would need to.)

Bove’s submission, signed as well by newly-confirmed Todd Blanche, is surprising, but not just for its inapt citation of Flynn.

Filed in the wake of multiple questions about his own ethical misconduct, Bove largely shifts a key premise of his own motion to dismiss, that it should be dismissed because of an appearance of impropriety. He largely replaces that justification, one of two made for dismissing the Adams case, to weaponization alone.

The first sentence of the section addresses his excuses for dismissing the case cites a paragraph that mentions only appearance of impropriety, then the transcript where he mentions weaponization but supports it by claiming an appearance of impropriety.

Dismissal is required, on consent, based on the Department’s conclusion that this prosecution reflects an improper weaponization of the criminal justice system, which has given rise to “appearances of impropriety and risks of interference with the 2025 elections in New York City.” Mot. ¶ 5; see also 2/19/25 Tr. 23.

But the balance of the passage relies entirely on his claim of weaponization, citing to Trump’s Executive Order making false claims that Biden politicized DOJ, and eventually citing an appellate decision in the Blagojevich case that threw out those quid pro quos that involved trading of official positions, but not those involving personal benefit (seemingly suggesting that Eric Adams would get no personal benefit from dismissal).

In this case, the Department has exercised the capacious prosecutorial discretion that supports the Motion pursuant to the anti-weaponization policy articulated by President Trump on his first day in office. Specifically, Executive Order 14147, entitled Ending the Weaponization of the Federal Government, sets forth the following policy: “It is the policy of the United States to identify and take appropriate action to correct past misconduct by the Federal Government related to the weaponization of law enforcement . . . .” 90 Fed. Reg. 8235. The express “purpose” of the policy is to “ensure accountability for the previous administration’s weaponization of the Federal Government against the American people,” which included conduct “oriented more toward inflicting political pain than toward pursuing actual justice or legitimate governmental objectives.” Id.

It cannot be denied that President Trump’s anti-weaponization policy is in the public interest as an important reform in response to recent abuses of the criminal justice system. The purpose of the policy, like the Petite policy, “is to protect the individual from any unfairness.” Rinaldi, 434 U.S. at 31. “The defendant, therefore, should receive the benefit of the policy whenever its application is urged by the Government.” Id. Here, for the reasons set forth in the Motion and at the February 19, 2025 hearing, that means the pending charges must be dismissed.

[snip]

As a legal matter, the Department’s conclusion that dismissal would serve the public good by deterring weaponization, and promoting Executive Branch national security and immigration objectives, is entirely proper. Every action that a diligent public servant takes should be designed to advance the public good, which is what the Motion seeks to achieve. If taking such steps were treated as the equivalent of a personal gift or bribe, whether under the ethics rules or bribery laws, government would literally grind to a halt. That is why “a proposal to trade one public act for another, a form of logrolling, is fundamentally unlike the swap of an official act for a private payment.” United States v. Blagojevich, 794 F.3d 729, 734 (7th Cir. 2015).

Remember: Judge Ho ruled that the publicity around the case did not violate local rules, and Adams never even claimed selective prosecution. This is Bove saying he knows better and Judge Ho has no say in the matter.

Having thus claimed that Trump’s own declaration that prosecutions against him were unfair can, in turn, taint entirely different prosecutions, his defense attorney then tries to flip his own alleged unethical conduct. Both in the introduction and in a long follow-up section (together making up about 8 pages of 18), Bove spins Danielle Sassoon and Hagan Scotten’s refusal to do something they viewed to be unethical as itself misconduct.

He does so in two ways. First, and most alarmingly, he suggests that resigning rather than taking an action they deemed unethical amounted to misconduct. Consider the logic of these two paragraphs (Bragg v. Jordan is the Second Circuit opinion holding that Mark Pomerantz had to respond to a Jim Jordan subpoena, sustaining Bove’s paranoia and Trump’s conspiracy theories about him):

The decisions by U.S. Attorney-2 and AUSA-1 to resign, rather than carry out their obligations under the Department’s chain of command, are not a basis to question the Motion. Each U.S. Attorney’s authority is derivate of the Executive Power that the President has delegated to the Attorney General. See 28 U.S.C. §§ 503, 509, 515. So too is the residual power of AUSAs, who are removable by the Attorney General. See 28 U.S.C. § 542. The Attorney General explained on February 5, 2025 that “it undermines the constitutional order and deprives the President of the benefit of his lawyers” when the Department’s attorneys “refuse to advance good faith arguments . . . .”3 SDNY’s prosecution team and Executive Staff did just that, preferring “political theatre” [sic] over their obligations to the Constitution and the public. Bragg v. Jordan, 669 F. Supp. 3d 257, 275 (S.D.N.Y. 2023).

SDNY has taken a markedly different tack in other cases by conceding that the office is bound by the Department’s senior leadership. In Blaszczak, SDNY felt “constrained” to “confess error at the direction of the Solicitor General’s Office” and to ask the Second Circuit to “set aside” trial convictions on several fraud counts. ECF No. 453 at 8, No. 18-2811 (2d Cir. Apr. 2, 2021); see also id. at 2 (noting that SDNY was “constrained to follow” the Department’s position); id. at 12 (“[T]he Government is constrained to concede that the § 641 object of each conspiracy was legally invalid. . . .”). In Paracha, an AUSA told the court that, because the dismissal motion had been “approved at the highest levels of the Department of Justice,” “w[e] do not have authority to make any changes to that document.” ECF No. 197 at 7 (emphasis added), No. 03 Cr. 1197 (S.D.N.Y. Dec. 20, 2019). Here, too, the SDNY prosecution team lacked authority to countermand a decision authorized by the Attorney General. Their misconduct is not a basis to extend this litigation, much less deny the Motion. [my emphasis]

3 https://www.justice.gov/ag/media/1388521/dl?inline.

In this passage, Bove presents what is the proper ethical decision — to end a relationship with a client if they ask you to do something you cannot ethically do — as instead misconduct (and he calls it misconduct even though, as he says elsewhere, Sassoon and Scotten are “the subjects of an ongoing investigation at the Department,” making it clear, on the same day the head of Office of Professional Responsibility was sacked, that he has prejudged the affair).

He does so while invoking the memo Pam Bondi issued last month, demanding that all lawyers of the Department be willing to “vigorously defend[] presidential policies and actions against legal challenges on behalf of the United States.” The consequence Bondi lays out for failing to zealously (a word repeated four times) defend Trump’s views is discipline or termination.

It is therefore the policy of the Department of Justice that any attorney who because of their personal political views or judgments declines to sign a brief or appear in court, refuses to advance good-faith arguments on behalf of the Administration, or otherwise delays or impedes the Department’s mission will be subject to discipline and potentially termination, consistent with applicable law.

But that’s not what happened here: Sassoon and Scotten resigned. (Indeed, Bove formally treated Sassoon’s offer, made to AG Bondi, to resign as such, rather than firing her while she remained an employee, which he could have done).

In other words, Bove is robbing Sassoon and Scotten of the ability to resign to avoid an unethical act. He’s saying the mere act of doing so — the act of making the ethically correct decision as a lawyer — amounts to misconduct.

And from there, he document dumps a bunch of communications Sassoon, Scotten, and some other AUSAs on the case sent, a veritable Twitter Files dump in a legal filing, clearly misrepresenting the context of at least some of them. (I’ve put the references to all eight Exhibits below.)

For example, Bove quotes from a text exchange three days after the election in which someone asks the very conservative Hagan Scotten if he’s going to go after a judgeship now that a Republican won. Scotten replies, “Got to convict Adams before I can think about anything else.” Bove quotes this three times!! But it appears to say precisely the opposite of what Bove implies — he uses it to slam Scotten (along with Sassoon) as “aggressive and careerist.” But instead it shows that Scotten was focused on what he was doing; he wasn’t rushing from what Bove claims is a dogshit prosecution to find a lifetime promotion. Plus, Bove claims that Scotten’s text, “illustrates why [Scotten] was later interested in using public filings to send messages to President Trump,” which makes no sense at all; it was already clear by the election that Trump was sucking up to Adams. If Scotten wanted to suck up to Trump, he would have ditched the prosecution ASAP, possibly even (as Bove himself did) rush to represent Trump in two criminal cases for attacking the country, in hopes of political gain.

Similarly, Bove treats a draft of the letter Sassoon ultimately sent to Pam Bondi on February 12 as a big gotcha, pretending that there’s no difference between “having the authority” to dismiss charges with “having a valid basis to do so.”

Four of the documents Bove cites (Exhibit B, Exhibit C, Exhibit G, and Exhibit H) discuss the drafting of this court filing, which was in turn a response to this inflammatory filing from Adams’ attorneys. The comments all seem to react to the headache Damian Williams had caused by promoting himself and writing an oped opposing corruption — though Adams’ letter make ridiculous claims that Williams was trying to get into the Mayoral race with just months to spare. Adams’ letter effectively says that Williams’ anti-corruption stance as US Attorney, one that targeted both overt Democratic donor Sam Bankman-Fried and Robert Menendez, was partisan. None of the comments supports Adams’ point — that there was some impropriety with the prosecution or prejudice for Adams before a jury. Nor do they conflict with Judge Ho’s opinion on Damian Williams’ op-ed, which is that it was a stretch to suggest it targeted Adams at all and certainly didn’t violate local rules.

Although Mayor Adams does not request relief under Local Rule 23.1, the Court notes that, after carefully reviewing Mr. Williams’s op-ed, the op-ed does not contain any statements that run afoul of the Rule’s prohibitions. In the op-ed, Mr. Williams provides hyperlinks to several prosecutions brought during his tenure as U.S. Attorney, including those of federal and state elected officials, but none concern Mayor Adams. In fact, the majority of the statements in the oped that Mayor Adams claims are problematic concern New York State rather than New York City politics. For example, Mayor Adams highlights Mr. Williams’s statements that “[t]he ability to raise obscene sums of money for a campaign is precisely the wrong bottleneck to elected office,” and that “[i]t reeks of pay-to-play corruption and is offensive to most New Yorkers . . . ” Jan. 18 Letter at 2 (quoting Williams’s op-ed). But those sentences are found in a paragraph lamenting the ability of candidates “to raise money from individuals or entities with business before the state,” opining that “[t]he state’s new matching funds program is woefully inadequate,” and arguing in favor of “a truly transformative public financing system for state elections. . . ” Id. (emphases added). They do not appear to be directed at New York City politics generally or at this case specifically.

There is one sentence in the op-ed stating that “[t]he public reporting alone paints a picture” that “America’s most vital city is being led with a broken ethical compass,” id. at 1, which could plausibly be read to be a reference to Mayor Adams (among others). This particular statement, however, “do[es] not cross the line drawn by [Local] Rule 23.1 in the sense that [it] do[es] not, by [itself], constitute opinions as to the Defendant[’s] guilt, and [is] not otherwise the type of statement[] proscribed by the rule.” United States v. Smith, 985 F. Supp. 2d 506, 539 (S.D.N.Y. 2013) (citing Local Rule 23.1(d)). Nor does the statement “go[] beyond the public record.”

There’s even a clear concern not to dictate anything to the incoming Main Justice team nor to piss off Trump, precisely the kind of deference Bove is demanding.

Plus, Bove omitted something from Sassoon’s letter to Bondi. Williams had a minimal role in the case.

As Mr. Bove’s memo acknowledges, and as he stated in our meeting of January 31, 2025, the Department has no concerns about the conduct or integrity of the line prosecutors who investigated and charged this case, and it does not question the merits of the case itself. Still, it bears emphasis that I have only known the line prosecutors on this case to act with integrity and in the pursuit of justice, and nothing I have learned since becoming U.S. Attorney has demonstrated otherwise. If anything, I have learned that Mr. Williams’s role in the investigation and oversight of this case was even more minimal than I had assumed. The investigation began before Mr. Williams took office, he did not manage the day-to-day investigation, and the charges in this case were recommended or approved by four experienced career prosecutors, the Chiefs of the SDNY Public Corruption Unit, and career prosecutors at the Public Integrity Section of the Justice Department. Mr. Williams’s decision to ratify their recommendations does not taint the charging decision

Emil Bove went fishing in the prosecutors personal emails (the other two AUSAs on the team were put on paid leave Friday, ensuring they lost access to these communications before Bove filed this), hoping to find corroboration for his false claims about politicization, and came up short. So instead, he simply made up they made Sassoon and Scotten look like careerists, when nothing he submitted supports that at all.

Twitter Files. An attempt to smear two prosecutors for making an ethical decision, precisely the basis of several ethical complaints raised against Bove himself.

Understand, too, Bove is playing a transparent game. Publishing these communications is a privacy violation, little different than the release of the Strzok and Page texts which DOJ subsequently determined was unlawful. Bove as much as concedes the point in his request asking to seal the exhibits.

In the Response, the Department sought to strike an appropriate balance between the public’s right of access, and the privacy interests of the attorneys at issue, by anonymizing the participants to communications. The participants are the subjects of an ongoing investigation at the Department.

[snip]

Even to the extent inferences regarding the identities of certain participants could be drawn based on connections to public reporting, that is not the case for each of the individual participants.

Of course, filing something under seal provides cause for the press to demand to have it unsealed under precisely the same “public right of access.” It won’t be sealed for long. And the only mystery about the identities of AUSAs 2, 3, and 4 is which is which member of the now-suspended prosecution team.

None of this helps Bove’s case. None of this disproves there was a quid pro quo. None of this presents any evidence that Sassoon or Scotten had any question about the ethics of their decision.

All it does is confirm that when Bove says he’s fighting weaponization, he means he’s going to go after anyone who gets in his way of weaponizing DOJ.

Exhibit A: Part of a package of communications Danielle Sassoon attached to an email; Bove claims that all are related to her resignation (it’s not clear they are)

On February 12, 2025, the recently-resigned Acting U.S. Attorney (U.S. Attorney-2) sent herself a draft letter stating that she was “personally disappointed in [her] predecessor’s self-serving actions after his departure. . . .” Ex. A,

[snip]

Attorney-2 sent an email attaching draft materials relating to her anticipated resignation. Ex. A. One of the documents was named “Adams PR,” i.e., press release, which suggests that she was already planning to publicize her resignation. Ex. A, Attachment 1. A another document, styled as a letter to the Attorney General, included the assertion that U.S. Attorney-2 “was personally disappointed in my predecessor’s self-serving actions after his departure, including the creation of a personal website.” Ex. A, Attachment 3. The draft letter also noted, in highlighted text, that “the Attorney General has the authority to order the dismissal of pending charges.” Id. On the day after sending the drafts, U.S. Attorney-2 emailed a letter to the Attorney General that omitted this language and claimed falsely: “The Government Does Not Have a Valid Basis To Seek Dismissal.”

Exhibit B: A discussion about how to respond to Eric Adams’ complaints about Damien Williams’ public comments

prior to making the public claim that only a “coward” or “fool” would sign the Motion, a recently-resigned AUSA from the SDNY prosecution team (AUSA-1) wrote the following regarding the letter that SDNY filed with the Court on January 22, 2025: “[U.S. Attorney-1] obviously has political ambitions, and I think suggesting we doubt that just costs us credibility.” Ex. B at 2

[snip]

AUSA-1 also wrote that it was “pretty plausible” to him that U.S. Attorney-1 “had a political motive in bringing this case.” Id.

[snip]

AUSA-1 pushed back. “I know that none of us were motivated by [U.S. Attorney-1’s] political aspirations, but I don’t think any of us know for sure what motivated [U.S. Attorney-1].” Id. AUSA-1 added the following comments in the draft of the letter:

  • “[T]he point to me is just to separate ourselves from [U.S. Attorney-1].”
  • “To me the point about the statements not naming EA feels a little too lawyerly—almost a technicality in this context since [U.S. Attorney-1] was obviously referring to EA [in the op-ed].”
  • “I don’t want to ask anyone to reject the theory that [U.S. Attorney-1] had a political motive in bringing this case. Seems pretty plausible to me.”
  • “I don’t want to say anything that picks a fight with EA’s accusation of political ambitions against [U.S. Attorney-1]: [U.S. Attorney-1] obviously has political ambitions, and I think suggesting we doubt that just costs us credibility.” Ex. B.

Exhibit C: Another discussion about how to respond to Eric Adams’ complaints about Damien Williams’ public comments

AUSA-1 explained that he hoped to “distance” the SDNY prosecution team from U.S. Attorney-1, “enough that [Judge] Ho and [President] Trump will know we don’t approve of what he did, but not so much that we magnify the scandal.”

[snip]

On January 19, 2025, AUSA-1 circulated a draft of the letter SDNY ultimately filed on January 22, 2025, in which the prosecutors argued—wrongly—that Mayor Adams’ “criticism of the article and the fact of its publication are beside the point.” ECF No. 102. In the email attaching the draft of the letter, AUSA-1 explained, “[b]asically, I tried to . . . distance us from [U.S. Attorney-1] enough that [Judge] Ho and [President] Trump will know we don’t approve of what he did, but not so much that we magnify the scandal.” Ex. C. In response to the draft, AUSA-3 argued, “I think we want to create distance between those prosecutors and the [] US Attorney.” Id. Another AUSA on the SDNY prosecution team (AUSA-4) added, “I agree that we should create some space from [U.S. Attorney-1], but I also think we should avoid anything that looks like us fighting with [U.S. Attorney-1] (which would be counterproductive).”

As the SDNY prosecution team continued to debate the substance of the draft letter, AUSA4 suggested that the prosecutors should argue that Mayor Adams was “wrong about his claim that our prosecution is motivated by [U.S. Attorney-1’s] political interests.” Ex. C.

Exhibit D: A November 8 text in which Scotten said he wasn’t going to pursue a judgeship right away

Just days after the 2024 election, in response to a text message asking if it was “time” for AUSA-1 to “take a seat on the bench,” AUSA-1 responded: “Got to convict Adams before I can think about anything else.”

[snip]

On November 8, 2024, AUSA-1 received a message with the following question: “You think it’s time to take a seat on the bench? Lol.” Ex. D. AUSA-1’s response included, “Got to convict Adams before I can think about anything else.”

[snip]

It is thus apparent from the context that, just as AUSA-1 hoped to convict Mayor Adams as the last notch in his belt before he took a “seat on the bench,” Ex. D,

Exhibit E: A July 17, 2024 discussion about trial strategy. 

At least one of the prosecutors was as aggressive and careerist as U.S. Attorney-1. For example, on July 18, 2024, AUSA-1 exchanged messages with another AUSA on the SDNY prosecution team (AUSA-2) about efforts to “exclude” a “defense witness” in this case. Ex. E. AUSA-1 remarked that an “invocation is better” than “[l]etting him come in and refuse cross.”

Exhibit F: A September 5, 2024 comment from one of the other AUSAs about how they portrayed the influence relationship

On September 5, 2024, another AUSA on the SDNY prosecution team (AUSA-3) acknowledged in a text message to AUSA-1 that “we did a lot of gymnastics around the influence point” in the Indictment, and argued that “maybe making him the one exploiting the corrupt relationship works better.” Ex. F

Exhibit G: A January 21 response to a draft of the filing

Later on January 21, AUSA-1 circulated a revised version of the draft with comment bubbles that included:

  • With respect to the “beside the point” sentence that was ultimately included in the letter, AUSA-1 noted that U.S. Attorney-2 “suggested this sentence, which makes the point less oblique—her objection to the prior version—while in my view still preserving our effort to distance ourselves from the article.”
  • AUSA-1 also noted: “I think we have a sufficiently strong ending without the prior ending (any US attorney would signed) which [U.S. Attorney-2] and others felt might be read as an attempt to hem in the new crew at main justice before they had a chance to weigh in on the case.”

Exhibit H: Another message about the January 21 filing

In a separate message, AUSA-1 asserted that he preferred a strategy that “buys us more credibility by first making clear we’re not defending the [U.S. Attorney-1] article before then going on the attack.” Ex. H

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Judge Dale Ho Had Emil Bove Authenticate His Letter to Danielle Sassoon

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A bunch of legal and governmental ethics experts, as well as Norm Eisen’s Democracy Defenders Fund, have filed an amicus motion that could (though is unlikely) to affect Judge Dale Ho’s forthcoming consideration of whether to dismiss the case against Eric Adams.

The motion asks Judge Ho to ask Paul Clement, in the latter’s role as an amicus, to consider whether Emil Bove violated professional ethics in trying to dismiss this case.

Amici submit that the inquiry should include whether Acting Deputy Attorney General Emil Bove violated the Rules of Professional Responsibility and applicable Department of Justice guidelines in his conduct of this matter.

[snip]

First, to direct Mr. Clement to conduct a factual inquiry into whether Mr. Bove violated any of the Rules of Professional Conduct or Department of Justice prosecutorial policies or standards; and

Second, to hold an evidentiary hearing to determine whether, in fact, Mr. Bove violated any of the Rules of Professional Conduct or Department of Justice prosecutorial policies or standards.6

6 Pursuant to Canon 3(B)(6) of the Code of Conduct for United States Judges, this Court has the discretion to impose a remedy – beyond denial of the Motion to Dismiss – if it determines that Mr. Bove violated any of the Rules of Professional Conduct. The Canon provides that “[a] judge should take appropriate action upon receipt of reliable information indicating the likelihood that . . . a lawyer violated applicable rules of professional conduct.” (Emphasis added.)

They include a list of rules that Bove might have violated.

RPC 5.1(b)(2). This Rule requires that Mr. Bove, as a supervising lawyer in the Department of Justice, ensures that the lawyers he supervises comply with the Rules of Professional Conduct, including Acting U.S. Attorney for the Southern District of New York Danielle Sassoon, and lawyers in the Department of Justice’s Public Integrity Section, whom Mr. Bove directed to sign the Motion;

RPC 1.11(f)(3). This Rule prohibits a lawyer who is a public official from accepting an offer of anything of value in exchange for influencing official action. If, in fact, Mr. Bove accepted an offer from Mayor Adams as a quid pro quo in the form of cooperating in the enforcement of the Administration’s immigration policies, he may have violated this ethical duty;

RPC 3.3(a)(1). This Rule prohibits Mr. Bove from knowingly making a false statement of fact or law to a tribunal. If the reasons given by Mr. Bove in support of his Motion and his statement that there was no quid pro quo are false, he may have violated this ethical duty; and

RPC 8.4(d). This Rule prohibits a lawyer from engaging in conduct that is prejudicial to the administration of justice. If Mr. Bove’s justifications for the Motion are pretextual and an abuse of his prosecutorial power, granting the Motion may be prejudicial to the administration of justice.

The most compelling theory substantiating abuse was the way Bove serially threatened attorneys with investigation and firing if they did not sign onto his motion to dismiss the case, along with the investigations he initiated against those who refused.

If either or both of the lawyers who signed the Motion were pressured into doing so, as has been reported, this would irrevocably taint the Motion. By signing the Motion, under Rule 3.3(a)(1), Mr. Bove represented to this Court that the Motion did not contain a false statement of fact or law. There is a substantial basis here to inquire whether Mr. Bove made representations knowing at the time that they were false. The Court should not be placed in the position of granting a Motion lacking in honesty and integrity.

[snip]

When the prosecutors on the team prosecuting Mayor Adams expressed concerns about the legal and ethical propriety of the dismissal, Mr. Bove responded with a campaign of retaliation — placing them on administrative leave and initiating investigations. Bove Letter at 1. These actions are inconsistent with Mr. Bove’s duty to seek justice.5

[snip]

Punishment of career prosecutors for adhering to their oaths and ethical obligations, if proven, would certainly constitute conduct prejudicial to the administration of justice.

The amicus also notes that, particularly in the face of Bove’s claim that DOJ attempted to interfere in an election by indicting Mayor Adams nine months before the Democratic primary, his efforts to dismiss the indictment months before the primary may have been intended to influence an election.

By arguing to the Court that the prosecution should be dismissed because it is interfering with Mayor Adams’s ability to run for re-election, Mr. Bove has raised the specter that dismissal is being sought with the purpose of affecting the upcoming June 24 primary election—now just a few months away—in which Mayor Adams is a candidate. Hearing Transcript at 26. It is also apparent that dismissal would give Mayor Adams an electoral advantage he otherwise would not have. In sharp contrast, Ms. Sassoon has explained that the decision to bring the indictment in September 2024 was made nine months before the June 2025 Democratic Mayoral Primary and more than a year before the November 2025 Mayoral Election and “complied in every respect with longstanding Department policy regarding election year sensitivities and the applicable Justice Manual provisions.” Sassoon Letter at 4

Now, I’m skeptical that this request will lead to a fulsome evidentiary hearing about Bove’s conduct.

But by putting all this on the record, including the threats to prosecutors, it might provide Ho a tool to do something else he laid the basis to do.

The lawyers included the transcript of the hearing with their motion. And there’s a part of it that was far more subtle than what made into reports of the hearing.

Virtually every report of the hearing described that the question of whether Ho should rely on amici came up. Most focused on Bove’s attack on Carey Dunne and Mark Pomerantz, and his request that Ho ignore that amicus.

I do object to consideration of the second amicus at Dkt. 128 purported to be filed on behalf of a series of former U.S. Attorneys. And, again, acknowledging the Court has broad discretion about if, how, and when to invite amicus participation, a brief authored by Carey Dunne and Mark Pomerantz, who are both central to the investigation at the New York District Attorney’s Office of President Trump, it just comes from a place of such bias and lack of impartiality, that that’s not a friend of the Court’s submission. That’s a group of people claiming that — I think the words in the brief are there should be — I think the word “roving” might have even been used, a roving factual inquiry into the situation.

That’s just partisan noise. That’s not an amicus brief actually trying to help your Honor with the issues that are before you. So I submit that the Court should not accept the amicus at Dkt. 128.

But before that — the first time Judge Ho raised the amicus briefs — he did so after questioning Alex Spiro about the letter he sent to Bove on February 3, which Spiro himself docketed. After Spiro gave a representation of why he wrote that letter, Judge Ho turned to Bove and asked him about the February 10 letter he sent Danielle Sassoon, which was before him because it was attached to the Pomerantz amicus.

This first discussion was not about whether Bove opposed the amicus itself. It was, like the preceding discussion about why Spiro wrote the February 3 letter, whether the February 10 memo he sent Sassoon was authentic.

Mr. Bove, I believe this is a memorandum dated February 10, 2025, regarding the Justice Department’s decision to dismiss the case, and that is titled “Dismissal Without Prejudice of Prosecution of Mayor Adams.” Is that right?

MR. BOVE: Yes, Judge.

THE COURT: And you’re familiar with this memo?

MR. BOVE: Yes.

THE COURT: Are you the author of the memo?

MR. BOVE: Yeah. Those are my initials.

THE COURT: Okay. And this is authentic? It was submitted in connection with an amicus brief. I want to confirm that.

MR. BOVE: This is the memorandum I sent to Ms. Sassoon on that date. I do have a procedural objection to the amicus brief we’re talking about, but I want to be responsive first to the Court’s question.

THE COURT: Okay. I mean, I haven’t made any kind of ruling on the amicus brief.

MR. BOVE: I would like to be heard on that point.

THE COURT: I do want to address your views about whether or not the Court should consider certain things, including the amicus brief. But this memo, Mr. Bove, did this represent the official views of the Justice Department as of this date?

MR. BOVE: I mean, this is the authentic document that I sent to Danielle Sassoon.

THE COURT: Okay. And when I consider the government’s motion to dismiss, is it appropriate for me to consider what’s in this memo?

MR. BOVE: No.

THE COURT: Okay. Explain that to me.

MR. BOVE: The record here is the motion that I made. The only question — basically, if you start with the Rinaldi footnote 15, the Supreme Court case, you look at the more recent Second Circuit cases, Blaszczak, HSBC, the only two questions are is there some concern about harassment. Your Honor has addressed that conclusively today.

And then, second, is there a question about whether the motion is so clearly contrary to the public interest that the Court should not grant it.

[snip]

Considering documents outside the record I don’t think is part of that discretion. Even if your Honor considers this, it’s entirely consistent with everything that I’ve said. [my emphasis]

Later, Judge Ho got Spiro to back off his opposition to amici generally (Spiro had raised concerns that, “Any person that comes before the Court could have political motivations”) to state that he did not take a position on the non-Pomerantz memo.

THE COURT: Just so I understand it, what I heard from the government, and, Mr. Bove, correct me if I’m wrong, is that you object to the brief, the second of the two amicus briefs that was filed, the former U.S. Attorneys one, but not to the common cause one. Whereas, Mr. Spiro, you object to both?

MR. SPIRO: We take no position on whether the pending letter motion is part of the record. If it ends there.

THE COURT: I’m sorry. Do you object to the Court considering — granting either of the motions? I shouldn’t put it in terms of the Court. Do you object to either of the motions for amicus submissions? I just want to make sure my record is clear so I understand what I’m doing when I’m ruling.

MR. SPIRO: I don’t take a position on the first letter motion.

THE COURT: Okay. Thank you.

MR. SPIRO: I don’t take a position on it. Any further involvement, I rest on the record I just made.

You’ll recall that two of the questions Ho asked Paul Clement to address were whether he should consider other materials beyond the Rule(48) motion itself.

2) Whether, and to what extent, a court may consider materials other than the Rule 48(a) motion itself;

3) Under what circumstances, if any, additional procedural steps and/or further inquiry would be appropriate before resolving a Rule 48(a) motion;

Now, it’s unclear whether Ho will consider the amicus itself; it is dated Friday (Ho’s deadline for additional amici) but not docketed until yesterday, so he could ignore it on that basis alone. But it does provide a theory by which these letters come in based on Bove’s own conduct.

But he may not need it.

He was clearly focused on something else: Alex Spiro’s letter from February 3, seemingly mapping immigration assistance that Adams would provide if the case were dismissed, and Bove’s letter to Sassoon claiming (among other things) that the investigation by that point was an example of weaponization.

Of note, Judge Ho did not say anything when Bove claimed that his judgement that the case was politicized overrode Ho’s own opinion from January that it wasn’t.

The first is just a straightforward exercise of prosecutorial discretion guided by President Trump’s Executive Order 14147 relating to weaponization of the criminal justice process as well as guidance issued by the Attorney General on the day she was sworn in, February 5, 2025.

And basically what is set forth here is my conclusion that this case, as a matter of prosecutorial discretion, should not proceed because it reflects, at minimum, appearances of impropriety that give cause for concern about abuse of the criminal justice process. And I believe it actually goes further than that and it is an abuse of the criminal justice process.

That matter, which, again, in an exercise of prosecutorial discretion, is, I think, as your Honor alluded to earlier, virtually unreviewable in this courtroom, especially where guided by an Executive Order and direct guidance from the Attorney General.

This claim is legally noxious, because it suggests that Bove can override an opinion from Judge Ho (though Bove never acknowledged that Ho had made that ruling). But Ho didn’t point out that Bove’s opinion basically attempted to overrule Ho’s own earlier opinion.

He did, however, react a bit when Spiro used the leaked Sassoon letter to reiterate his earlier argument about leaks.

MR. SPIRO: Well, I don’t want to digress. We didn’t have a hearing about it. But the reality is, the letter that leaked, the letter that I think we can both agree, sir, the letter that leaked with the back and forth between the Department of Justice did have prejudicial and false information about the mayor in it. There was a letter that leaked, that we can I hope both agree, couldn’t have been leaked, since it was internal to the Department of Justice, from any third outside party or bogeyman.

THE COURT: I’m sorry. You’re not referring to stuff that was the subject of motions practice earlier?

MR. SPIRO: No, I’m talking about now.

THE COURT: Okay.

MR. SPIRO: Yes, your Honor.

THE COURT: I got confused. I apologize. Go ahead.

MR. SPIRO: Not at all. But I’m just saying, I think the Court has to think about that. And the Court can keep thinking about, and the Court can always revisit its beliefs. Earlier in the case when I said things like, doesn’t this seem a little off, and doesn’t this seem a little politically motivated, and doesn’t it seem there are a lot of leaks going on. The Court can look at the cavalier nature with which the prosecutors put things in those letters that went back and forth when the Department of Justice was discussing this matter.

It remains the case that the most likely outcome of this is that Judge Ho dismisses the case against Adams with prejudice, depriving DOJ of any leverage over the Mayor.

But unnoticed by most of the coverage, Ho laid the foundation to rely on exchanges that happened before everything blew up on February 12.

Update: Relatedly, Jamie Raskin and Jasmine Crockett sent Pam Bondi a request for information on the Adams case. Their key hook is the possibility that Bove might have destroyed the notes of the January 31 meeting he confiscated.

All handwritten or electronic notes taken during the January 31, 2025, meeting between Department prosecutors and Mayor Adams’ legal team. If any notes have been destroyed, please provide the names of individuals who destroyed the notes, as well as the dates, manner, and reasons for such destruction.

The request is imperfect in some ways. For example, it doesn’t include Bill Burck and Eric Trump or Trump Organization in the list of conversations; Burck has an apparent conflict by representing both Trump Org and Adams. Similarly, it doesn’t ask for communications from Chad Mizelle, who was clearly in this loop as well.

But it is the kind of thing that–if there were real scrutiny of Bove’s ethical problems–could become a problem with DOJ.

Update: Fixed the first sentence, I hope.

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Dale Ho Brings in the Conservative Cavalry

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Wow. Judge Dale Ho came up with a remarkable approach to deal with DOJ’s request to dismiss the Eric Adams prosecution.

First, he canceled the trial for now, taking away one of DOJ’s major claimed problems with the case against Eric Adams. He also said that Adams doesn’t have to show up at any hearings for now.

Then, he asked Paul Clement — as opposed to the several people who offered to serve as an amicus to help him consider the issue — to address the following questions.

1) The legal standard for leave to dismiss an indictment under Rule 48(a);

2) Whether, and to what extent, a court may consider materials other than the Rule 48(a) motion itself;

3) Under what circumstances, if any, additional procedural steps and/or further inquiry would be appropriate before resolving a Rule 48(a) motion;

4) Under what circumstances, if leave is granted, dismissal should be with or without prejudice;

5) If leave were denied under Rule 48(a), what practical consequences would follow, including whether dismissal would nevertheless be appropriate or necessary under other rules or legal principles (e.g., for “unnecessary delay” under Rule 48(b) or under speedy trial principles, see United States v. N.V. Nederlandsche Combinatie Voor Chemische Industrie, 453 F. Supp. 462, 463 (S.D.N.Y. 1978)); and

6) Any other issues the parties or amicus consider relevant to the Court’s resolution of the Government’s motion.

Clement was George W Bush’s Solicitor General and has argued a slew of cases before the Supreme Court. Like we assume Danielle Sassoon and Hagan Scotten will someday be, he’s a right wing legal superstar; Clement was, like Sassoon, an Antonin Scalia clerk.

As several people have noted, the language Ho used to justify appointing an amicus is language that invoked Clement’s appointment in another important case, by name.

Accordingly, to assist with its decision-making via an adversarial process, the Court exercises its inherent authority to appoint Paul Clement of Clement & Murphy PLLC as amicus curiae to present arguments on the Government’s Motion to Dismiss. See Seila L. LLC v. Consumer Fin. Prot. Bureau, 591 U.S. 197, 209 (2020) (“Because the Government agrees with petitioner on the merits of the constitutional question, we appointed Paul Clement to defend the judgment below as amicus curiae. He has ably discharged his responsibilities.”)

So one of Joe Biden’s most liberal appointees hired one of the most prominent conservative lawyers in the country.

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Hiding Yahoos: ORCON and the FISC Special Advocate

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Some weeks ago, I noted the language in James Clapper’s letter purportedly “supporting” Patrick Leahy’s USA Freedom Act making it clear he intended to retain the information asymmetry that currently exists in the FISA Court — specifically, ex parte communication with the court.

We note that, consistent with the President’s request, the bill estsablishes a process for the appointment of an amicus curiae to assist the FISA Court and FISA Court of Review in matters that present a novel or significant interpretation of the law. We believe that the appointment of an amicus in selected cases, as appropriate, need not interfere with important aspects of the FISA process, including the process of ex parte consultation between the Court and the government. We are also aware of the concerns that the Administrative Offices of the U.S. Courts expressed in a recent letter, and we look forward to working with you and your colleagues to address these concerns.

The Yahoo documents released a few weeks back illustrate how this might work in practice.

We’ve known since January 2009 that Yahoo (which we then only knew was an Internet company) didn’t receive the materials — perhaps most importantly, the minimization procedures — it needed to adequately challenge the program.

The cover sheet to the ex parte appendix provided to the FISCR illustrates the range of things withheld from Yahoo’s attorney, Marc Zwillinger, who apparently had a Top Secret clearance. In addition to the minimization procedures for NSA and FBI, the government withheld the “linking” procedures used to identify targets (the titles of these documents are redacted in the released version, but this post explains why at least some must pertain to these procedures; note, I think the government also withheld these from Judge Reggie Walton at the FISC level!), and a January 15, 2008 Colleen Kollar-Kotelly FISC opinion assessing the adequacy of the original certifications.

Comparing two versions of Walton’s April 25, 2008 opinions — a version redacted for Yahoo’s use in 2008, and the version redacted for public release now — provides context on the key issues obscured or suppressed entirely from Yahoo’s view. (Note two things about these redactions: first, with the exception of language on the information the government demanded from Yahoo, we’re receiving more information than Yahoo’s cleared attorney received when he was fighting this case. And the older document actually includes two sets of redactions: the more faded redactions used for Yahoo, and a more opaque set done for this release, the latter of which hide details about the Directives given to Yahoo.)

Effectively, the government hid what they changed when they rewrote Certifications underlying their demands to Yahoo just 2 weeks before the law expired. A significant part of those changes involves getting FBI involved in the process (I increasingly suspect those January 29, 2008 Certifications are when the government first obtained official permission for FBI back door searches).

Notice of the new Certificates was given to Yahoo on February 16, 2008, the day PAA expired, and signed by then Solicitor General Paul Clement, though signed as Acting Attorney General (see page 81). One day earlier, Judge Walton had given the government an ex parte order requiring them to address whether the ex parte materials they had submitted to him in December “constitutes the complete and up-to-date set of certifications … applicable to the directives that are at issue in this proceeding.” Walton also required the government to provide notice to Yahoo they were going to submit a new classified appendix.

Apparently, Walton had gotten wind of the fact — but had not been told formally — that the government had submitted entirely new Certifications affecting their treatment of the data they would obtain from Yahoo. So he ordered them to update the record so his review actually considered the surveillance as it would be implemented.

I’ve listed most of the differences between the two memoranda below. While much of it pertains to prior classified decisions and the operation of FISC generally, the biggest sections redacted from Yahoo but released in part to us now describe the new certifications, including FBI’s new role in the process.  Of particular concern, the government withheld Walton’s comment admonishing the government for changing the certifications, “without appropriately informing the Court or supplementing the record in this matter until ordered to do so” (page 4), though footnote 4 and page 35 make it clear that Walton revealed some details of the government’s belated disclosures in a February 29 order for more briefing.

More troubling still, they hid Walton’s still significantly-redacted assessment that the changes in the Certifications would not change the nature of the government’s demand from Yahoo (page 38).

Neither type of amendment altered the nature of the assistance to be rendered by Yahoo,40

40 Yahoo has submitted a sworn statement that, prior to serving the directives on Yahoo, representatives of the government “indicated that, at the outset, it only would expect…

I wrote about these changing requests here. And while on paper the changing requests couldn’t have been a result of the changed Certification — Yahoo’s Manager of Legal Compliance described them in a January 23 submission, and the new Certifications were issued the following week — I find the timing, and the government’s failure to notice Walton on them, suspect enough that it’s the kind of thing that should have been briefed. Plus, as I’ll show in a follow-up post, I’m fairly certain the government hid  from both FISC and FISCR the degree to which this was about targeting Americans.

Once Walton learned that the government’s requests to Yahoo had changed between the date of Kollar-Kotelly’s initial approval and the expiration of the law, it seems it should have merited more direct briefing, but that would have required admitting that the changes put domestic law enforcement in the center of the program, which presents (or should present) significantly different Fourth Amendment concerns, notably increasing the importance of prior interpretations of the “significant purpose” language instituted under the PATRIOT Act.

In other words, not only did the ex parte nature of this proceeding hide the details Yahoo would have needed to make a robust Fourth Amendment argument, as well as evidence that the government was not being entirely forthcoming to FISC (which would have bolstered Yahoo’s separation of powers claim), it also hid what may be specifically pertinent details behind the government’s last minute changed certifications.

In theory, this shouldn’t happen with the USA Freedom Advocate, because the bill specifically requires the Advocate have access to certifications necessary for her to complete her duties.

(A) IN GENERAL.—If a court established under subsection (a) or (b) designates a special advocate to participate as an amicus curiae in a proceeding, the special advocate—

[snip]

(ii) shall have access to all relevant legal precedent, and any application, certification, petition, motion, or such other materials as are relevant to the duties of the special advocate;

By comparison, the government was challenging Yahoo’s legal standing to take this challenge in the first place.

But I find the apparent basis for withholding information from Yahoo to be relevant. This memorandum, at least, was originally classified Top Secret/ORCON (Originator Controlled); the redacted memorandum given to Yahoo was classified Secret. That means that the changes arose, at least in part, from the ability of the originator (which may be DOJ’s National Security Division, given that Mark Bradley conducted the declassification review) to determine who gets the document. As I noted, there are two bases in USAF that would permit the government to withhold information, classification and privilege. Withholding information under an ORCON claim likely stems from both (though I am checking this).

So while the government should not be able to treat the advocate the same way they treated Yahoo (which, after all, FISC treated as a Congressionally sanctioned challenger to the orders, just as it would the advocate), they seem to have the prerogative to. (Update: I should add that Walton permitted the government to do all the ex parte briefing here under FISA’s ex parte briefing language; given that USAF doesn’t change that for any of the authorities in question, we should assume this precedent will apply to the advocate.)

To be clear, the USAF advocate is not one of the things that I believe sets back a slow reform process (as, for example, I believe the “transparency” provisions and some weakened minimization procedures do). I think it most likely that the advocate will evolve the way PCLOB has, which was first authorized in 2004, thwarted by Executive obstruction (on precisely these kinds of issues), reauthorized as a more effective body in 2007, then slow-walked again — partly by President Obama, though partly by Congress — for another 6 years. That is, if the advocate is at least as self-respecting as Lanny Davis (!), she will quit if the Executive ignores the intent of Congress that she have access to the materials she needs to do her job, exposing the inefficacy of the existing system. All that, of course, assumes she will cop onto what has been withheld. Clearly, Yahoo got a sense of it during this process, though FISC and FISCR seem to have realized only some of the other stuff withheld from them.

That is, judging by the PCLOB example, if all goes well and if USAF were to pass this year, we might have a fully functional advocate by 2023!

The Yahoo materials released show that the government withheld pertinent information from Yahoo, FISC, and FISCR until forced to provide it, and they never provided any of them with all the information they should have.

That it retains the ability to do so under USAF doesn’t bode well for the advocate. But that’s really just a subset to a larger issue that, even when authorized by Congress to provide oversight of this executive spying, the government has consistently, for years, been less than fully cooperative with FISC’s authority to do so.

As I’ve said, the surest way to reform surveillance is to eliminate the FISA Court.

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DOMA’s Day At The Supremes

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RainbowNiagraFallsUPDATE: HERE IS THE AUDIO OF TODAY’S ARGUMENT

HERE IS THE TRANSCRIPT OF TODAY’S ARGUMENT

I am going to do something different today and put up a post for semi-live coverage – and discussion – of the DOMA oral arguments in the Supreme Court this morning. First, a brief intro, and then I will try to throw tidbits in here and there as I see it during and after the arguments.

The case at bar is styled United States v. Windsor, et al. In a nutshell, Edith Windsor was married to Thea Spyer, and their marriage was recognized under New York law. Ms. Spyer passed away in 2009 and Windsor was assessed $363,000.00 in inheritance taxes because the federal government, i.e. the IRS, did not recognize her marriage to Spyer in light of the Defense of Marriage Act, or DOMA. Litigation ensued and the 2nd Circuit, in an opinion written by Chief Judge Dennis Jacobs, struck down DOMA as unconstitutional and ruled in favor of Edith Windsor. Other significant cases in Circuit Courts of Appeal hang in the lurch of abeyance awaiting the Supreme Court decision in Windsor, including Golinski v. Office of Personnel Management, Gill v. OPM and Pedersen v. Office of Personnel Management.

As an aside, here is a fantastic look at the restaurant where Edith Windsor and Thea Spyer met nearly 50 years ago.

Arguing the case will be Solicitor General Donald B. Verrilli again for the United States, Paul Clement for the Bi-Partisan Legal Advisory Group (BLAG) on putative behalf of Congress, because the Obama Administration ceased defending DOMA on the grounds it was discriminatory and unconstitutional, and Robbie Kaplan for Edith Windsor. Clement and Verrilli are well known by now, but for some background on Robbie Kaplan, who is making her first appearance before the Supremes, here is a very nice article. Also arguing will be Harvard Law Professor Vicki Jackson who was “invited” by SCOTUS to argue on the standing and jurisdiction issue, specifically to argue that there is no standing and/or jurisdiction, because the Obama Administration quit defending and BLAG will argue in favor of standing and jurisdiction.

Here is a brief synopsis of the argument order and timing put together by Ed Whelan at National Review Note: I include Whelan here only for the schedule info, I do not necessarily agree with his framing of the issues).

Okay, that is it for now, we shall see how this goes!

Live Updates:

10:39 am It appears oral arguments are underway after two decisions in other cases were announced.

10:51 am RT @SCOTUSblog: #doma jurisdiction arg continues with no clear indication of whether majority believes #scotus has the power to decide case.

11:00 am By the way, the excellent SCOTUSBlog won a peabody award for its coverage of the Supreme Court.

11:05 am @reuters wire: 7:56:34 AM RTRS – U.S. SUPREME COURT CONSERVATIVE JUSTICES SAY TROUBLED BY OBAMA REFUSAL TO DEFEND MARRIAGE LAW

11:15 am Wall Street Journal is reporting: Chief Justice John Roberts told attrorney Sri Srinivasan, the principal deputy solicitor general, that the government’s actions were “unprecedented.” To agree with a lower court ruling finding DOMA unconstitutional but yet seeking the Supreme Court to weigh in while it enforces the law is “has never been done before,” he said.

11:20 am Is anybody reading this, or is this a waste?

11:32 am @SCOTUSblog Kennedy asks two questions doubting #doma validity but nothing decisive and Chief Justice and Kagan have yet to speak.

11:40 am Wall Street Journal (Evan Perez) Chief Justice Roberts repeatedly expressed irritation at the Obama administration, telling Ms. Jackson, the court-appointed lawyer, and without specifically mentioning the administration, that perhaps the government should have the “courage” to execute the law based on the constitutionality rather instead of shifting the responsibility to the Supreme Court to make a decision.

11:45 am Wall Street Journal (Evan Perez) Paul Clement, attorney for lawmakers defending the law, argued that the went to the very heart of Congress’s prerogatives. Passing laws and having them defended was the “single most important” function of Congress, he argued.

11:52 am Wall Street Journal (Evan Perez) Justice Scalia and Mr. Srinivasan parried on whether Congress should have any expectation that laws it passes should be defended by the Justice Department. Mr. Srinivasan said he wouldn’t give an “algorithm” that explained when Justice lawyers would or wouldn’t defend a statute, but ceded to Justice Scalia’s suggestion that Congress has no “assurance” that when it passes a law it will be defended. That’s not what the OLC opinion guiding the Justice Department’s actions in these cases says, Justice Scalia interjected.

11:56 am Associated Press (Brent Kendall) One of the last questions on the standing issue came from Justice Samuel Alito, who asked whether the House could step in to defend DOMA without the Senate’s participation, given that it takes both chambers to pass a law.

11:59 am Bloomberg News During initial arguments today on the 1996 Defense of Marriage Act, Justice Anthony Kennedy suggested that a federal law that doesn’t recognize gay marriages that are legal in some states can create conflicts.
“You are at real risk of running in conflict” with the “essence” of state powers, Kennedy said. Still, he also said there was “quite a bit” to the argument by backers of the law that the federal government at times needs to use its own definition of marriage, such as in income tax cases.
Justice Ruth Bader Ginsburg said that when a marriage under state law isn’t recognized by the federal government, “One might well ask, what kind of marriage is this?”

12:05 pm @SCOTUSblog Final update: #scotus 80% likely to strike down #doma. J Kennedy suggests it violates states’ rights; 4 other Justices see as gay rights.

12:07 pm The argument at the Court is well into the merits portion of the case now

12:09 pm Wall Street Journal (Brent Kendall) Justice Kennedy, however, jumped in with federalism concerns, questioning whether the federal government was intruding on the states’ territory. With there being so many different federal laws, the federal government is intertwined with citizens’ day-to-day lives, he said. Because of this, DOMA runs the risk of running into conflict with the states’ role in defining marriage, he said.

12:12 pm It is pretty clear to me, from a variety of sources I am tracking, that the Court has serious problems with DOMA on the merits. Clement is getting pounded with questions on discrimination, conflict with state laws and federalism concerns. Pretty clear that if standing is found, DOMA is going down.

12:15 pm Wall Street Journal (Brent Kendall) Justice Ginsburg again says the denial of federal benefits to same-sex couples pervades every area of life. DOMA, she said, diminished same-sex marriages to “skim-milk” marriages. Justice Elena Kagan (pictured) follows a short time later saying DOMA did things the federal government hadn’t done before, and she said the law raised red flags.

12:19 pm @reuters wire: U.S. SUPREME COURT CONCLUDES ORAL ARGUMENTS ON FEDERAL LAW RESTRICTING SAME-SEX BENEFITS

12:30 pm @AdamSerwer Con Justices contemptuous of Obama decision not to defend DOMA but still enforce law. Kennedy said “it gives you intellectual whiplash”

Okay, as I said earlier, if the Justices can get by the standing issue, it seems clear that DOMA is cooked. I think they will get by standing and enter a decision finding DOMA unconstitutional as to Section 3, which is the specific part of the law under attack in Windsor. That effectively guts all of DOMA.

That is it for the “Live Coverage” portion of the festivities today. It should be about an hour and a half until the audio and transcript are available. As soon as they are, I will add them as an update at the top of the post, and will then put this post on the top of the blog for most of the rest of the day for further discussion. It has been bot a fascinating and frustrating two days of critical oral argument; please continue to analyze and discuss!

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Clement’s Departure

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As some of you pointed out before I got distracted with the aura of actually having Democratic Presidential candidate(s) in my state, Paul Clement is done. He’s not going to stick around and lend his purportedly considerable skills defending the Bush Administration before SCOTUS anymore.

Today, the Department of Justice announced that Solicitor General Paul D. Clement will end his current service to the Department on June 2, 2008.

[snip]

Clement’s tenure of over seven years in the Office of the Solicitor General is the longest period of continuous service in that office by an individual who served as Solicitor General since Samuel Phillips, who served from 1872-1885.

[snip]

During his time in the Office of the Solicitor General, Clement argued 49 cases before the Supreme Court, prevailing in the vast majority of them. Landmark cases argued by Clement include Tennessee v. Lane, McConnell v. FEC, Rumsfeld v. Padilla, Gonzales v. Raich, and Gonzales v. Carhart. He also argued many other significant cases in both the Supreme Court and the lower courts involving novel and important legal issues concerning the conduct of the War on Terror.

The Office of the Solicitor General is responsible for conducting all litigation on behalf of the United States in the Supreme Court, and for supervising litigation in the federal appellate courts. Oral arguments for the 2007 Supreme Court term were completed in April 2008. The Department will submit all of its briefs for action during this term by the end of May 2008.

Prior to today’s announcement, Clement informed the President and the Attorney General of his plans to resign.

Let me just note several things. First, I still very strongly believe that Paul Clement is the guy about whom Sidney Blumenthal wrote last year,

Yet another Bush legal official, even now at the commanding heights of power, admits that the administration’s policies are largely discredited. In its defense, he says without a hint of irony or sarcasm, "Not everything we’ve done has been illegal." He adds, "Not everything has been ultra vires" — a legal term referring to actions beyond the law.

That is, as early as last June (I suspect) Paul Clement recognized he was on sinking ship–and recognized that a good many things the Bush Administration had done were illegal.

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