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Justice Roberts’ Drone Strike on George Washington’s Legacy

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Chief Justice John Roberts cloaked his radical opinion granting Presidents broad immunity in the Farewell Address of George Washington, normally celebrated as the codification of the peaceful cession of power, the humility of the role of the President.

Our first President had such a perspective. In his Farewell Address, George Washington reminded the Nation that “a Government of as much vigour as is consistent with the perfect security of Liberty is indispensable.” 35 Writings of George Washington 226 (J. Fitzpatrick ed. 1940). A government “too feeble to withstand the enterprises of faction,” he warned, could lead to the “frightful despotism” of “alternate domination of one faction over another, sharpened by the spirit of revenge.” Id., at 226–227. And the way to avoid that cycle, he explained, was to ensure that government powers remained “properly distributed and adjusted.” Id., at 226.

It is these enduring principles that guide our decision in this case.

But Roberts instead focuses on Washington’s warning against factionalism — and from there, to a claim to honor separation of powers.

Never mind that, as Justice Ketanji Brown Jackson notes, Roberts’ opinion instead radically altered the balance of powers, which (adopting Washington’s logic) will arguably feed factionalism.

It is important to note that the majority reframes the immunity question presented here as a separation of powers concern that is compelled by Article II—as if what is being asked is whether Congress can criminalize executive prerogatives. See, e.g., ante, at 6–7; see also ante, at 1– 2 (BARRETT, J., concurring in part). But that is not anywhere close to what is happening in this case. No one maintains that Congress has passed a law that specifically criminalizes the President’s use of any power that the Constitution vests exclusively in the Executive, much less that the Judiciary is being conscripted to adjudicate the propriety of such a statute. To the contrary, the indictment here invokes criminal statutes of general applicability that everyone is supposed to follow, both on and off the job. So, the real question is: Can the President, too, be held accountable for committing crimes while he is undertaking his official duties? The nature of his authority under Article II (whether conclusive and preclusive, or shared with Congress, or otherwise) is entirely beside the point.

Plus, by my read, the only separation of powers that Roberts really cares about is that between one Executive and his successor. Roberts is, in actuality, usurping the Article II authority of DOJ to prosecute crimes exclusively in the case of a former President, adopting that power to the judiciary.

Roberts’ opinion does that even while it permits the sitting President to use the trappings of DOJ against everyone but his predecessor, with personal presidential involvement. All the abuses of the Trump DOJ? The revenge prosecution of Greg Craig, Michael Sussmann, and Igor Danchenko? All cool with John Roberts. The use of DOJ resources to have an FBI informant frame Joe Biden? Still totally cool. Not revenge. Just the President doing what he’s empowered to do.

But it’s that more cherished precedent Washington set, of the transfer of power rather than kings, that Roberts has done real violence to.

Consider what happened to Blassingame — the DC Circuit opinion holding that a former President can be sued for actions taken in his role as candidate for office — in this opinion.

Blassingame was mentioned repeatedly in the argument of this case, 16 times, often when a Republican who joined Roberts’ opinion today queried John Sauer if he agreed with it.

It came up when Clarence Thomas asked whether Sauer accepted the function of a candidate to be a private act — with which he mostly agreed and then backtracked somewhat.

JUSTICE THOMAS: Mr. Sauer, in assessing the official acts of a president, do you differentiate between the president acting as president and the president acting as candidate?

MR. SAUER: Yes, we do. And we don’t dispute essentially the Blassingame discussion of that.

JUSTICE THOMAS: Okay. Now —

MR. SAUER: But, of course, that has to be done by objective determinations, not by looking at what was the purpose of what you did this, and that’s the most important point there.

It came up when Neil Gorsuch queried Sauer about it (in which case Sauer adopted former Trump White House Counsel Greg Katsas’ more narrow holding on it).

JUSTICE GORSUCH: And then the question becomes, as we’ve been exploring here today a little bit, about how to segregate private from official conduct that may or may not enjoy some immunity, and we — I’m sure we’re going to spend a lot of time exploring that. But the D.C. Circuit in Blassingame, the chief judge there, joined by the panel, expressed some views about how to segregate private conduct for which no man is above the law from official acts. Do you have any thoughts about the test that they came up with there?

MR. SAUER: Yes. We think, in the main, that test, especially if it’s understood through the lens of Judge Katsas’ separate opinion, is a very persuasive test. It would be a great source for this Court to rely on in drawing this line. And it emphasizes the breadth of that test. It talks about how actions that are, you know, plausibly connected to the president’s official duties are official acts. And it also emphasizes that if it’s a close case or it appears there’s considerations on the other side, that also should be treated as immune. Those are the — the aspects of that that we’d emphasize as potentially guiding the Court’s discretion.

Gorsuch would go on to question Dreeben about Blassingame at length.

It came up when John Kavanaugh invited Sauer to rewrite Blassingame, and Sauer largely declined.

JUSTICE KAVANAUGH: Where — where do you think the D.C. Circuit went wrong in how it determined what was official versus what’s personal?

MR. SAUER: Well, I read — I read the opinion below in this particular case as adopting a categorical view. It does not matter, is the logic of their — their opinion because there is no immunity for official acts and, therefore, you know, that’s the end of the story. I don’t really think they went wrong in Blassingame in the civil context when they engaged in the same determination with respect to what’s official and what isn’t official. There, we agree with most of what that opinion said.

And it came up when Sammy Alito asked John Sauer if he’d like an order saying that the President was immune unless there was no possible justification, in which case Sauer raised Blassingame, and Alito shifted from analysis of official and unofficial.

JUSTICE ALITO: But what if it were not — what if it did not involve any subjective element, it was purely objective? You would look objectively at the various relevant factors? MR. SAUER: That sounds to me a lot like Blassingame and especially viewed through the lens of Judge Katsas’ separate opinion, and that may not be different than what we’re proposing to the Court today.

JUSTICE ALITO: Well, Blassingame had to do with the difference between official conduct and private conduct, right?

MR. SAUER: That’s correct. I — I understood the Court to be asking that.

JUSTICE ALITO: No. This — this would apply — and it’s just a possibility. I don’t know whether it’s a good idea or a bad idea or whether it can be derived from the structure of the Constitution or the Vesting Clause or any other source. But this would be applied in a purely objective — on purely objective grounds when the president invokes an official power in taking the action that is at issue?

MR. SAUER: Yes, I believe — the reason I think of Blassingame is because it talks about an objective context-specific determination to winnow out what’s official and what is purely private conduct, and, again, in a — with a strong degree of deference to what — and, therefore, you know, that’s the end of the story. I don’t really think they went wrong in Blassingame in the civil context when they engaged in the same determination with respect to what’s official and what isn’t official. There, we agree with most of what that opinion said.

You might be justified in thinking that Blassingame would be central to today’s ruling, not least because the charged crimes are the same ones as the complaints alleged in Blassingame.

The central holding of Blassingame, however, is gone.

Blassingame appears just three times in the opinion rendered today. Roberts uses it as a limiting factor.

But the breadth of the President’s “discretionary responsibilities” under the Constitution and laws of the United States “in a broad variety of areas, many of them highly sensitive,” frequently makes it “difficult to determine which of [his] innumerable ‘functions’ encompassed a particular action.” Id., at 756. And some Presidential conduct—for example, speaking to and on behalf of the American people, see Trump v. Hawaii, 585 U. S. 667, 701 (2018)—certainly can qualify as official even when not obviously connected to a particular constitutional or statutory provision. For those reasons, the immunity we have recognized extends to the “outer perimeter” of the President’s official responsibilities, covering actions so long as they are “not manifestly or palpably beyond [his] authority.” Blassingame v. Trump, 87

Sonia Sotomayor notes that Roberts has used it as a limiting factor, then notes he has also eliminated any analysis of motive.

In fact, the majority’s dividing line between “official” and “unofficial” conduct narrows the conduct considered “unofficial” almost to a nullity. It says that whenever the President acts in a way that is “‘not manifestly or palpably beyond [his] authority,’” he is taking official action. Ante, at 17 (quoting Blassingame v. Trump, 87 F. 4th 1, 13 (CADC 2023)). It then goes a step further: “In dividing official from unofficial conduct, courts may not inquire into the President’s motives.” Ante, at 18.

Jackson makes a similar observation.

At most, to distinguish official from unofficial conduct, the majority advises asking whether the former President’s conduct was “‘manifestly or palpably beyond [his] authority.’” Ante, at 17 (quoting Blassingame v. Trump, 87 F. 4th 1, 13 (CADC 2023)).

There’s not even much discussion of Trump’s role as a candidate! Roberts raises it, and then says Trump’s electioneering tweets might serve some other purpose.

There may, however, be contexts in which the President, notwithstanding the prominence of his position, speaks in an unofficial capacity—perhaps as a candidate for office or party leader. To the extent that may be the case, objective analysis of “content, form, and context” will necessarily inform the inquiry. Snyder v. Phelps, 562 U. S. 443, 453 (2011) (internal quotation marks omitted). But “there is not always a clear line between [the President’s] personal and official affairs.” Mazars, 591 U. S., at 868. The analysis therefore must be fact specific and may prove to be challenging.

The indictment reflects these challenges. It includes only select Tweets and brief snippets of the speech Trump delivered on the morning of January 6, omitting its full text or context. See App. 228–230, Indictment ¶104. Whether the Tweets, that speech, and Trump’s other communications on January 6 involve official conduct may depend on the content and context of each. Knowing, for instance, what else was said contemporaneous to the excerpted communications, or who was involved in transmitting the electronic communications and in organizing the rally, could be relevant to the classification of each communication.

In ruling (unsurprisingly) that the Jeffrey Clark allegations have to be thrown out, Roberts goes further, and reads the Executive Branch interest in policing election crime to extend to making false claims about the election.

The Government does not dispute that the indictment’s allegations regarding the Justice Department involve Trump’s “use of official power.” Brief for United States 46; see id., at 10–11; Tr. of Oral Arg. 125. The allegations in fact plainly implicate Trump’s “conclusive and preclusive” authority. “[I]nvestigation and prosecution of crimes is a quintessentially executive function.” Brief for United States 19 (quoting Morrison v. Olson, 487 U. S. 654, 706 (1988) (Scalia, J., dissenting)). And the Executive Branch has “exclusive authority and absolute discretion” to decide which crimes to investigate and prosecute, including with respect to allegations of election crime. Nixon, 418 U. S., at 693; see United States v. Texas, 599 U. S. 670, 678–679 (2023) (“Under Article II, the Executive Branch possesses authority to decide ‘how to prioritize and how aggressively to pursue legal actions against defendants who violate the law.’” (quoting TransUnion LLC v. Ramirez, 594 U. S. 413, 429 (2021))). The President may discuss potential investigations and prosecutions with his Attorney General and other Justice Department officials to carry out his constitutional duty to “take Care that the Laws be faithfully executed.” Art. II, §3. And the Attorney General, as head of the Justice Department, acts as the President’s “chief law enforcement officer” who “provides vital assistance to [him] in the performance of [his] constitutional duty to ‘preserve, protect, and defend the Constitution.’” Mitchell v. Forsyth, 472 U. S. 511, 520 (1985) (quoting Art. II, §1, cl. 8)

And when entertaining Trump’s claims that his interference in state and congress’ role were just an effort to protect the integrity of the election, Roberts thumbs both the scale and the facts again, using the Take Care clause as a shield rather than the sword that Judge Karen Henderson viewed it as.

On Trump’s view, the alleged conduct qualifies as official because it was undertaken to ensure the integrity and proper administration of the federal election. Of course, the President’s duty to “take Care that the Laws be faithfully executed” plainly encompasses enforcement of federal election laws passed by Congress. Art. II, §3. And the President’s broad power to speak on matters of public concern does not exclude his public communications regarding the fairness and integrity of federal elections simply because he is running for re-election. Cf. Hawaii, 585 U. S., at 701. Similarly, the President may speak on and discuss such matters with state officials—even when no specific federal responsibility requires his communication—to encourage them to act in a manner that promotes the President’s view of the public good.

Even when conceding that Trump was pressuring Mike Pence as President of the Senate, not as his Vice President, when he was threatening to have him assassinated, Roberts suggests this is a close call, because Trump has to be able to pressure the President of the Senate to get legislation passed.

The question then becomes whether that presumption of immunity is rebutted under the circumstances. When the Vice President presides over the January 6 certification proceeding, he does so in his capacity as President of the Senate. Ibid. Despite the Vice President’s expansive role of advising and assisting the President within the Executive Branch, the Vice President’s Article I responsibility of “presiding over the Senate” is “not an ‘executive branch’ function.” Memorandum from L. Silberman, Deputy Atty. Gen., to R. Burress, Office of the President, Re: Conflict of Interest Problems Arising Out of the President’s Nomination of Nelson A. Rockefeller To Be Vice President Under the Twenty-Fifth Amendment to the Constitution 2 (Aug. 28, 1974). With respect to the certification proceeding in particular, Congress has legislated extensively to define the Vice President’s role in the counting of the electoral votes, see, e.g., 3 U. S. C. §15, and the President plays no direct constitutional or statutory role in that process. So the Government may argue that consideration of the President’s communications with the Vice President concerning the certification proceeding does not pose “dangers of intrusion on the authority and functions of the Executive Branch.” Fitzgerald, 457 U. S., at 754; see supra, at 14.

At the same time, however, the President may frequently rely on the Vice President in his capacity as President of the Senate to advance the President’s agenda in Congress. When the Senate is closely divided, for instance, the Vice President’s tiebreaking vote may be crucial for confirming the President’s nominees and passing laws that align with the President’s policies. Applying a criminal prohibition to the President’s conversations discussing such matters with the Vice President—even though they concern his role as President of the Senate—may well hinder the President’s ability to perform his constitutional functions.

It is ultimately the Government’s burden to rebut the presumption of immunity. We therefore remand to the District Court to assess in the first instance, with appropriate input from the parties, whether a prosecution involving Trump’s alleged attempts to influence the Vice President’s oversight of the certification proceeding in his capacity as President of the Senate would pose any dangers of intrusion on the authority and functions of the Executive Branch.

Over and over again, then, Roberts has applied his new standard — whether anything might conceivably intrude on the functions of the Presidency — to immunize usurping Congress’ (and states’) role in certifying the election.

What John Roberts has done — at least preliminarily — is carve out an Executive authority so broad that in every area where the President is explicitly excluded, even in the role of candidate-for-President, the President can still act with absolute immunity.

That authorizes the President to use all the powers of the Presidency to win re-election — precisely the opposite holding of what Blassingame adopted.

In an opinion that tries to cloak his power grab with an appeal to President Washington, John Roberts has suffocated the greatest thing Washington gave the United States, the presumption that Presidential powers would cede to the power of elections.

SCOTUS’ Republicans Allow Presidents to Use SEAL Team 6 To Execute Their Opponents

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Until this morning, it was a joke that if a President sent out SEAL Team Six to take out, say, their opponent, their Vice President, or Sammy Alito as an official act, they would be immune from prosecution.

But the Republicans on SCOTUS have just given Presidents presumptive immunity for official acts.

I’ll post updates. But the effect of the opinion is to throw out the entirety of the charges involving Jeffrey Clark, and remand for further consideration on Trump’s pressure on Mike Pence and his public comments. It also prohibits the government from using Trump’s communications with his advisors. That guts the case.

From Sotomayor’s dissent:

Looking beyond the fate of this particular prosecution, the long-term consequences of today’s decision are stark. The Court effectively creates a law-free zone around the President, upsetting the status quo that has existed since the Founding. This new official-acts immunity now “lies about like a loaded weapon” for any President that wishes to place his own interests, his own political survival, or his own financial gain, above the interests of the Nation. Korematsu v. United States, 323 U. S. 214, 246 (1944) (Jackson, J., dissenting). The President of the United States is the most powerful person in the country, and possibly the world. When he uses his official powers in any way, under the majority’s reasoning, he now will be insulated from criminal prosecution. Orders the Navy’s Seal Team 6 to assassinate a political rival? Immune. Organizes a military coup to hold onto power? Immune. Takes a bribe in exchange for a pardon? Immune. Immune, immune, immune.

Let the President violate the law, let him exploit the trappings of his office for personal gain, let him use his official power for evil ends. Because if he knew that he may one day face liability for breaking the law, he might not be as bold and fearless as we would like him to be. That is the majority’s message today.

Bill Clinton Did Not Win an Election By Getting a Blowjob: The Danger of Lindsey Graham’s Willful Ignorance about Russian Interference

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In his statement in Brett Kavanaugh’s confirmation hearing yesterday, Lindsey Graham embodied the problem with Republicans’ deliberate ignorance about Russian interference in the 2016 election.

As part of his statement, he raised the time Joe Biden pointed out what a hypocrite Brett Kavanaugh was for believing presidents should not be investigated during their term but nevertheless thought it necessary to ask Bill Clinton the following questions:

If Monica Lewinsky says that you inserted a cigar into her vagina while you were in the Oval Office area, would she be lying?

[snip]

If Monica Lewinsky says that she gave you oral sex in the Oval Office area, would she be lying?

If Monica Lewinsky says that you ejaculated in her mouth on two occasions in the Oval Office, would she be lying?

Lindsey did so to suggest Biden’s comments about the Clinton investigation refute the claim that Trump picked Kavanaugh to protect himself from investigation, as if the investigation of Clinton for a blowjob was as legitimate as Mueller’s investigation into whether Trump cheated to win the election.

To justify such an absurd claim, Lindsey suggests that the Mueller investigation is only about whether Trump acted improperly when he fired Comey.

When it comes to the pillar of political virtue, Comey. Harry Reid: “That he’s been a supporter of Comey, and led the fight to get him confirmed, as he believed Comey was a principled public servant. With the deepest regret, I now see that I was wrong.” Mr. Nadler, from NY. “The President can fire him for cause and ought to. He violated the guidelines and put his thumb on the scale of an election.” Mr. Cohen, from Tennessee, a Democrat. “Call on Comey to resign his position, effective immediately, I’m sureupon reflection of this action he will submit his letter of resignation for the nation’s good.” To my Democratic friends,  you were all for getting rid of this guy. Now all of a sudden the country is turning upside down cause Trump did it.

The same guy who recently endorsed the idea of Trump firing Jeff Sessions once Kavanaugh gets confirmed then claimed he would do everything to protect the Mueller investigation. He says that even while suggesting he agrees with Kavanaugh that the president shouldn’t be investigated.

There’s a process to find out what happened in the 2016 election. It’s called Mr. Mueller. And I will do everything I can to make sure he finishes his job without political interference. And I’m here to tell anybody in the country that listens, that this is so hypocritical of my friends on the other side. When it was their President, Kavanaugh was right. When you’re talking about Roe v. Wade, it’s okay to promise the nation it will never be overturned. It’s okay to pick a Democratic staff member of this committee, but it’s not okay to pick somebody who’s been a lifelong Republican.

Which brings us to the stunning bit. Having just misrepresented the scope of the Mueller investigation — completely ignoring that the primary investigation is about whether Trump conspired with a hostile foreign power to win the election — Lindsey then suggests that Democrats should have no influence over judges because they lost the election the legitimacy of which Mueller continues to investigate (and about which Mueller has already provided evidence that the scope of Russia’s help for Trump went further than initially known).

People see through this. You had a chance, and you lost. If you want to pick judges from your way of thinking, then you better win an election.

After discussing his support for Sonia Sotomayor and Elena Kagan, Lindsey then suggests that stripping the last limits on presidential power is just a game (even while admitting he likes Trump best of all for getting two SCOTUS picks).

I hope people in the country understand this game. It’s a game that I’m sad to be part of. It’s gotten really bad. The antidote to our problems in this country when it comes to judges and politics is not to deny you a place on the Supreme Court. This is exactly where you need to be, this is exactly the time you need to be there, and I’m telling President Trump, “You do some things that drive me crazy, you do some great things. You have never done anything better, in my view, than to pick Gorsuch and Kavanaugh.  Cause you had an opportunity to put well-qualified conservatives on the court — men steeped in the rule of law — who will apply analysis not politics to their decision-making, and you knocked it out of the park, and I say to my friends on the other side: you can’t lose the election and pick judges.

Lindsey ends, again, by taunting Democrats that they can’t have any input on Supreme Court justices if they lose an election.

An election the investigation of which Lindsey claims to, but is not, protecting. An election the investigation of which may be stymied by the confirmation of Brett Kavanaugh.

Of course, this is only possible because of the way four different efforts in Congress — including Lindsey’s own — have served to obscure the matters under investigation. You’ve got Lindsey’s investigation and Bob Goodlatte’s — both more worried about a single FISA order that even a conservative Republican has told me was based on overwhelming evidence — than whether the guy making lifetime appointments cheated to get that authority. You’ve got Devin Nunes’ investigation, better described as an information gathering effort to help Trump get away with any cheating he engaged in than an investigation of whether he did cheat. Finally, there is Richard Burr’s investigation which, while on its face is more credible, nevertheless is not pursuing leads that support a case that Trump conspired with Russia to win the election.

Lindsey Graham is concerned about lies Christopher Steele may have told under oath in the UK, but not lies Don Jr clearly told his own committee. His big rush to stack SCOTUS suggests the reason for that has everything to do with a need to sustain a fiction that those SCOTUS choices are the result of a legitimate election win rather than willfully conspiring with a foreign adversary to get those choices.

Sonia Sotomayor, John Roberts, and the Riley Decision

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In a piece just published at Salon, I look at John Roberts’ citation in his Riley v. California decision of Sonia Sotomayor’s concurrence in US v. Jones, the opinion every privacy argument has invoked since she wrote it two years ago. I argue Roberts uses it to adopt her argument that digital searches are different.

A different part of Sotomayor’s concurrence, arguing that the existing precedent holding that you don’t have a privacy interest in data you’ve given to a third party “is ill suited to the digital age,” has been invoked repeatedly in privacy debates since she wrote it. That’s especially true since the beginning of Edward Snowden’s leaks. Lawsuits against the phone dragnet often cite that passage, arguing that the phone dragnet is precisely the kind of intrusion that far exceeds the intent of old precedent. And the courts have – with the exception of one decision finding the phone dragnet unconstitutional – ruled that until a majority on the Supreme Court endorses this notion, the old precedents hold.

Roberts cited from a different part of Sotomayor’s opinion, discussing how much GPS data on our movements reveals about our personal lives. That appears amid a discussion in which he cites things that make cellphones different: the multiple functions they serve, the different kinds of data we store in the same place, our Web search terms, location and apps that might betray political affiliation, health data or religion. That is, in an opinion joined by all his colleagues, the chief justice repeats Sotomayor’s argument that the sheer volume of this information makes it different.

Roberts’ argument here goes beyond both Antonin Scalia’s property-based opinion and Sam Alito’s persistence-based opinion in US v. Jones.

Which seems to fulfill what I predicted in my original analysis of US v. Jones — that the rest of the Court might come around to Sotomayor’s thinking in her concurrence (which, at the time, no one joined).

Sotomayor, IMO, is the only one ready to articulate where all this is heading. She makes it clear that she sides with those that see a problem with electronic surveillance too.

I would take these attributes of GPS monitoring into account when considering the existence of a reasonable societal expectation of privacy in the sum of one’s public movements. I would ask whether people reasonably expect that their movements will be recorded and aggregated in a manner that enables the Government to ascertain, more or less at will, their political and religious beliefs, sexual habits, and so on.

[snip]

I would also consider the appropriateness of entrusting to the, in the absence of any oversight from a coordinate branch, a tool so amenable to misuse, especially in light of the Fourth Amendment’s goal to curb arbitrary exercises of police power to and prevent“a too permeating police surveillance,”

And in a footnote, makes a broader claim about the current expectation of privacy than Alito makes.

Owners of GPS-equipped cars and smartphones do not contemplate that these devices will be used to enable covert surveillance of their movements.

Ultimately, the other Justices have not tipped their hand where they’ll come down on more generalized issues of cell phone based surveillance. Sotomayor’s opinion actually doesn’t go much further than Scalia claims to when he says they can return to Katz on such issues–but obviously none of the other Republicans joined her opinion. And all those who joined Alito’s opinion seem to be hiding behind the squishy definitions that will allow them to flip flop when the Administration invokes national security.

Sotomayor’s importance to this decision likely goes beyond laying this groundwork two years ago.

There’s evidence that Sotomayor had a more immediate impact on this case. In a recent speech — as reported by Adam Serwer, who recalled this comment after yesterday’s opinion — Sotomayor suggested she had to walk her colleagues through specific aspects of the case they didn’t have the life experience to understand.

The Supreme Court has yet to issue opinions on many of its biggest cases this term, and Sotomayor offered few hints about how the high court might rule. She did use an example of a recent exchange from oral argument in a case involving whether or not police can search the cell phones of arrestees without a warrant to explain the importance of personal experience in shaping legal judgments.
“One of my colleagues asked, ‘who owns two cell phones, why would anybody?’ In a room full of government lawyers, each one of them has two cell phones,” Sotomayor said to knowing laughter from the audience. “My point is that issue was remedied very quickly okay, that misimpression was.”
The colleague was Chief Justice John Roberts, who along with Justice Antonin Scalia,seemed skeptical during oral arguments in Wurie v. United States that anyone but a drug dealer would need two cell phones.

“That’s why it’s important to have people with different life experiences,” Sotomayor said. ”Especially on a court like the Supreme Court, because we have to correct each other from misimpressions.”

In my Salon piece, I suggest that some years from today, some Court observer (I had Jeffrey Toobin in mind) will do a profile of how Sotomayor has slowly brought her colleagues around on what the Fourth Amendment needs to look like in the digital age.

I come away from this opinion with two strong hunches. First, that years from now, some esteemed court watcher will describe how Sonia Sotomayor has gradually been persuading her colleagues that they need to revisit privacy, because only she would have written this opinion two years ago.

Of course, it likely took Roberts writing the opinion to convince colleagues like Sam Alito. Roberts wrapped it up in nice originalist language, basically channeling James Madison with a smart phone. That’s something that surely required Roberts’ stature and conservatism to pull off.

But if this does serve as a renewed Fourth Amendment, with all the heft that invoking the Founders gives it, I’ll take it.

Unanimous: Cops Need a Warrant to Access Your Phone Data

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SCOTUS just unanimously held that cops generally need a warrant to access your cell phone data. Chief Justice Roberts wrote the opinion. The opinion is here.

I’m reading now to figure out what it means. Will update accordingly.

This passage is getting widely cited:

These cases require us to decide how the search incident to arrest doctrine applies to modern cell phones, which are now such a pervasive and insistent part of daily life that  the proverbial visitor from Mars might conclude they were an important feature of human anatomy. A smart phone of the sort taken from Riley was unheard of ten years ago; a significant majority of American adults now own such  phones.

I’m amused by the way Roberts deals with the government’s belated encryption argument.

Encryption isa security feature that some modern cell phones use in addition to password protection. When such phones lock, data becomes protected by sophisticated encryption that  the password. Brief for United States as Amicus Curiae in No. 13–132, p. 11.

[snip]

And data encryption is even further afield. There, the Government focuses on the ordinary operation of a phone’s security features,apart from any active attempt by a defendant or his associates to conceal or destroy evidence upon arrest.

We have also been given little reason to believe that either problem is prevalent.

[snip]

Similarly, the opportunities for officers to search a password-protected phone before data becomes encrypted are quite limited. Law enforcement officers are very unlikely to come upon such a phone in an unlocked state because most phones lock at the touch of a button or, as a default, after some very short period of inactivity. See, e.g., iPhone User Guide for iOS 7.1 Software 10 (2014) (default lock after about one minute). This may explain why the encryption argument was not made until the merits stage in this Court, and has never been considered by the Courts of Appeals

Read more →

The Era of Big Pen Register: The Flaw in Jeffrey Miller’s Moalin Decision

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As I noted, on Thursday Judge Jeffrey Miller rejected Basaaly Moalin’s bid for a new trial based on disclosures of the Section 215 dragnet. Miller rejected the bid largely by relying on Smith v. Maryland and subsequent decisions that found no Fourth Amendment protection for pen registers.

But Miller resorts to a bit of a gimmick to dismiss Justice Sonia Sotomayor’s comments in US v. Jones.

Miller notes Sotomayor’s comments. But he points to the 170 year history of the pen register and reasons that because pen register technology is so old, they cannot be described as a “product of the so-called digital revolution,” and therefore cannot raise the kind of new privacy concerns Sotomayor had in mind.

As noted by Defendants, Justice Sotomayor stated that the recent rise of the digital era of cell phones, internet, and email communications may ultimately require a reevaluation of “expectation of privacy in information voluntarily disclosed to third parties.” Id. at 957. Defendants extrapolate from this dicta that the court should recognize that Defendant Moalin had a reasonable expectation of privacy cognizable under the Fourth Amendment that the Government would not collect either individual or aggregated metadata.

The difficulty with Defendants’ argument is twofold. First, the use of pen register-like devices – going back to Samuel Morses’s 1840 telegraph patent – predates the digital era and cannot be considered a product of the digital revolution like the internet or cell phones. See Samuel F.G. Morse, Improvement in the Mode of Communicating Information by Signals by the Application of Electro-Magnetism, U.S. Patent 1647, June 20, 1840, page 4 column 2. In short, pen register-like devices predate the internet era by about 150 years and are not a product of the so-called digital revolution – the basis for the concerns articulated by Justice Sotomayor. [my emphasis]

Now, before I pick this apart, let’s look back at an earlier move Miller made.

In assessing the Section 215 dragnet, Miller did not consider whether the collection of Moalin’s phone records as part of a database of every single American’s phone records was constitutional. Instead, he first considered Moalin’s interest in phone records not involving him, then considered Moalin’s protections in phone records involving him (this may suggest the government found Moalin on a second hop).

Defendants argue that the collection of telephony metadata violated Defendant Moalin’s First and Fourth Amendment rights. At issue are two distinct uses of telephone metadata obtained from Section 215. The first use involves telephony metadata retrieved from communications between third parties, that is, telephone calls not involving Defendants. Clearly, Defendants have no reasonable expectation of privacy to challenge any use of telephony metadata for calls between third parties. See Steagald v. United States, 451 U.S. 204, 219 (1981) (Fourth Amendment rights are personal in nature); Rakas v. Illinois, 439 U.S. 128, 133-34 (1978) (“Fourth Amendment rights are personal rights which, like some other constitutional rights, may not be vicariously asserted.”); United States v. Verdugo-Uriquidez, 494 U.S. 259, 265 (1990) (the term “people” described in the Fourth Amendment are persons who are part of the national community or may be considered as such). As noted in Steagald, “the rights [] conferred by the Fourth Amendment are personal in nature, and cannot bestow vicarious protection on those who do not have a reasonable expectation of privacy in the place to be searched.” 451 U.S. at 219. As individuals other than Defendants were parties to the telephony metadata, Defendants cannot vicariously assert Fourth Amendment rights on behalf of these individuals. To this extent, the court denies the motion for new trial.

The second use of telephony metadata involves communications between individuals in Somalia (or other countries) and Defendant Moalin. The following discusses whether Defendant Moalin, and other Defendants through him, have any reasonable expectation of privacy in telephony metadata between Moalin and third parties, including co-defendants.

In other words, Miller takes Moalin’s phone records out of the context in which they were used. In doing so, he turns an enormous database — very much the product of the “so-called digital revolution” — into two pen registers, 170 year old technology.

That move is all the more problematic given repeated Administration explanations (cited by Moalin’s defense and therefore even Miller in his ruling) that Moalin was only identified through indirect contact with an identified selector (presumed to be Somali warlord Aden Ayro).

That is, Moalin would not have been identified without using the features of the database and NSA’s chaining analysis. Moalin was identified not because a single pen register showed him to be in contact with Aden Ayro, but because a network analysis showed his contacts with someone else appeared to be of sufficient value to constitute a likely tie to Ayro himself. And that two-hop connection served either as the basis to listen to already collected conversations involving Moalin via back door searches or, by itself, the basis for probable cause to wiretap Moalin (I suspect it’s the former, and further suspect they used the fruits of that back door search to get the warrant to tap Moalin directly).

Members of the Administration have assured us, over and over, that this chaining analysis is only possible with a complete haystack. Thus, the entire haystack — the database and data analysis that are the quintessential tool of the “so-called digital revolution” — is the instrument of surveillance, not hundreds of millions of individual pen registers. And yet, in their first victory over a defendant with standing, the judge resorted to a gimmick to render that haystack back into hundreds of millions of pieces of hay again.

Update: This passage, from the Administration White Paper, is inconsistent with Miller’s treatment of the dragnet as two separate pen registers.

Although broad in scope, the telephony metadata collection program meets the “relevance” standard of Section 215 because there are “reasonable grounds to believe” that this category of data, when queried and analyzed consistent with the Court-approved standards, will produce information pertinent to FBI investigations of international terrorism, and because certain analytic tools used to accomplish this objective require the collection and storage of a large volume of telephony metadata. This does not mean that Section 215 authorizes the collection and storage of all types of information in bulk: the relevance of any particular data to investigations of international terrorism depends on all the facts and circumstances. For example, communications metadata is different from many other kinds of records because it is inter-connected and the connections between individual data points, which can be reliably identified only through analysis of a large volume of data, are particularly important to a broad range of investigations of international terrorism. [my emphasis]

An EPIC Effort to Combat the Dragnet

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The Electronic Privacy Information Center has filed a writ of mandamus to SCOTUS to overturn the Section 215 order turning over all of Verizon’s call records to the NSA.

Let me be clear: this is a moon shot. I’m doubtful it’ll work. A really helpful post at SCOTUSblog on the effort emphasizes how unusual this is.

EPIC’s move is the boldest of a number of legal challenges to NSA that have been filed around the country by privacy defenders in the wake of Snowden’s public disclosure of some of the details of NSA surveillance.  EPIC filed under a Supreme Court rule that permits “extraordinary” filings directly in the Supreme Court, without first making a trip through a lower court, when “exceptional circumstances warrant the exercise of the Court’s discretionary powers” and an adequate remedy cannot be obtained “from any other court.”  The history of such Rule 20 requests shows that few are granted.  The Court’s own rules say that the power to grant such pleas is “sparingly exercised.”

All that said, IMO the filing is very well crafted, and worth reading with attention.

Name check the key Justices

I first got sucked in by the way the introduction invokes two recent cases on these issues.

The records acquired by the NSA under this Order detail the daily activities, interactions, personal and business relationships, religious and political affiliations, and other intimate details of millions of Americans. “Awareness that the Government may be watching chills associational and expressive freedoms. And the Government’s unrestrained power to assemble data that reveal private aspects of identity is susceptible to abuse.” United States v. Jones, 132 S. Ct. 945, 956 (2012) (Sotomayor, J., concurring). As Justice Breyer has recently noted, “the Government has the capacity to conduct electronic surveillance of the kind at issue.” Clapper v. Amnesty Int’l, USA, 133 S.Ct. 1138, 1158- 59 (2013) (citing, inter alia, Priest & Arkin, A Hidden World, Growing Beyond Control, Wash. Post, July 19, 2010, at A1 (reporting that the NSA collects 1.7 billion e-mails, telephone calls and other types of communications daily)). And because the NSA sweeps up judicial and Congressional communications, it inappropriately arrogates exceptional power to the Executive Branch.

Sotomayor is the one Justice who “gets” the implications of this dragnet; her opinion in Jones summarized where an ideal SCOTUS would be on these issues. If this is going to work Sotomayor is going to need to hold the hands of the other Justices and walk them through this risk. And Breyer is a key swing, a vote likely to support law and order without a good argument to the contrary.

And notice the way EPIC slipped in the separation of powers argument right there?

The motion also name checks two more crucial Justices, Republicans who have supported civil liberties issues on key cases in the past. Most importantly, it invokes Scalia’s recent warning against a panopticon in Maryland v. King (the DNA case).

Even admirable ends do not justify the creation of a panopticon. See Maryland v. King, 569 U.S. __, 133 S.Ct. 1958, 1989 (2013) (Scalia, J., dissenting) (“Solving unsolved crimes is a noble objective, but it occupies a lower place in the American pantheon of noble objectives than the protection of our people from suspicionless lawenforcement searches.”).

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Ron Wyden Suggests Secret PATRIOT GPS Tracking May Be Illegal Under Jones

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As I’ve suggested in my posts on US v Jones, the Justices seemed opposed to the kind of tracking we believe the government is doing under Section 215 of the PATRIOT Act. Yet of the three opinions ruling the warrantless use of GPS tracking in the case improper, only Sonia Sotomayor spoke broadly enough to make it clear that the Secret PATRIOT application is unconstitutional.

Ron Wyden (who, remember, wrote a column on Jones’ application to Secret PATRIOT) used yesterday’s Threat Assessment hearing to try to get James Clapper to commit to whether US v Jones makes Secret PATRIOT illegal. (2:25)

Wyden: Director Clapper, as you know the Supreme Court ruled last week that it was unconstitutional for federal agents to attach a GPS tracking device to an individual’s car and monitor their movements 24/7 without a warrant. Because the Chair was being very gracious, I want to do this briefly. Can you tell me as of now what you believe this means for the intelligence community, number 1, and 2, would you be willing to commit this morning to giving me an unclassified response with respect to what you believe the law authorizes. This goes to the point that you and I have talked, Sir, about in the past, the question of secret law, I strongly feel that the laws and their interpretations must be public. And then of course the important work that all of you’re doing we very often have to keep that classified in order to protect secrets and the well-being of your capable staff. So just two parts, 1, what you think the law means as of now, and will you commit to giving me an unclassified answer on the point of what you believe the law actually authorizes.

Clapper: Sir, the judgment rendered was, as you stated, was in a law enforcement context. We are now examining, and the lawyers are, what are the potential implications for intelligence, you know, foreign or domestic. So, that reading is of great interest to us. And I’m sure we can share it with you. [looks around for confirmation] One more point I need to make, though. In all of this, we will–we have and will continue to abide by the Fourth Amendment.

Given Clapper’s quick invocation of the law enforcement context, I suspect the Intelligence Community’s lawyers are planning to use the language in Samuel Alito’s concurring opinion addressing “extraordinary offenses”…

We also need not consider whether prolonged GPS monitoring in the context of investigations involving extraordinary offenses would similarly intrude on a constitutionally protected sphere of privacy. In such cases, long-term tracking might have been mounted using previously available techniques.

…To claim that their intelligence application–“foreign or domestic”–would still permit the tracking of innocent citizens using their cell phones.

In any case, if Clapper is good on his word (though note, he said he’d give this interpretation to Wyden, not release it publicly), the government may finally tip its hand regarding its cell phone tracking of Americans.

SCOTUS Unanimously Declares (Some) GPS Tracking a Search

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Good news! The Fourth Amendment is not totally dead yet!

SCOTUS just handed down its decision in US v. Jones, which I wrote about here. And while there are three concurring opinions (the majority authored by Scalia and joined by Roberts, Kennedy, Thomas, and Sotomayor, a concurrence from Sotomayor, and another concurrence written by Alito and joined by Ginsburg, Breyer, and Kagan), all upheld the Circuit Court decision throwing out evidence warrantless use of a GPS surveillance.

But the opinions are worth reading closely because–as I pointed out in my earlier post–they may indicate whether SCOTUS would find the Administration’s secret use of the PATRIOT Act to track people via the GPS in their cell phones to be legal (as well as other digital surveillance).

Scalia’s opinion focused on the way the government occupied property in this case, arguing that more recent decisions that have focused on reasonable expectations of privacy do not affect the original protection of the Fourth Amendment tied to property.

It is important to be clear about what occurred in this case: The Government physically occupied private property for the purpose of obtaining information. We have no doubt that such a physical intrusion would have been considered a “search” within the meaning of the Fourth Amendment when it was adopted.

[snip]

Jones’s Fourth Amendment rights do not rise or fall with the Katz formulation [expectation of privacy]. At bottom, we must “assur[e] preservation of that degree of privacy against government that existed when the Fourth Amendment was adopted.” Kyllo, supra, at 34. As explained, for most of our history the Fourth Amendment was understood to embody a particular concern for government trespass upon the areas (“persons, houses, papers, and effects”) it enumerates.

[snip]

What we apply is an 18th-century guarantee against un- reasonable searches, which we believe must provide at a minimum the degree of protection it afforded when it was adopted. The concurrence does not share that belief. It would apply exclusively Katz’s reasonable-expectation of-
privacy test, even when that eliminates rights that previously existed.

Alito’s concurrence, on the other hand, sees four problems with this approach, which boil down to the implications of Scalia’s logic being both too narrow and too broad. The first three are:

  • It would find non-trespassing long-term surveillance okay but short term trespass not (both one and two are versions of this)
  • Given different state property laws (particularly community property under marriage), it would have inconsistent results in different states

Alito’s fourth problem, though, is the key one: Scalia’s approach is not very helpful given how much surveillance is electronic.

Fourth, the Court’s reliance on the law of trespass will present particularly vexing problems in cases involving surveillance that is carried out by making electronic, as opposed to physical, contact with the item to be tracked. For example, suppose that the officers in the present case had followed respondent by surreptitiously activating a stolen vehicle detection system that came with the car when it was purchased.

That said, having made a case that electronic surveillance can be just as inappropriate as physical trespass assisted surveillance, Alito goes onto make problematic squishy distinctions, suggesting our current expectations of privacy with regards to GPS tracking pivot on the length of time the surveillance continues. And he suggests we may be losing our expectation of privacy with respect to that tracking.

For example, when a user activates the GPS on such a phone, a provider is able to monitor the phone’s location and speed of movement and can then report back real-time traffic conditions after combining (“crowdsourcing”)
the speed of all such phones on any particular road.9 Similarly, phone-location-tracking services are offered as “social” tools, allowing consumers to find (or to avoid) others who enroll in these services. The availability and use of these and other new devices will continue to shape the average person’s expectations about the privacy of his or her daily movements.

Most troubling, Alito suggests that for some “extraordinary offenses,” extended tracking might be okay.

We also need not consider whether prolonged GPS monitoring in the context of investigations involving extraordinary offenses would similarly intrude on a constitutionally protected sphere of privacy. In such cases, long-term tracking might have been mounted using previously available techniques.

Both Alito and Scalia (who rightly mocks this carve out) seem unwilling to talk about what might be acceptable in counterterrorism surveillance.

In short, while Scalia crafts a fairly cautious opinion based on private property, Alito crafts one that could easily be chipped away as we all get used to our smart phones.

The two arch-conservative Republicans both defend the Fourth Amendment, though, but it’s unclear they’re read to talk about the big questions before us (and, presumably, before them in the near future). In at least one way, Alito even underestimates what the government is capable of, claiming it cannot

But the use of longer term GPS monitoring in investigations of most offenses impinges on expectations of privacy. For such offenses, society’s expectation has been that law enforcement agents and others would not—and indeed, in the main, simply could not—secretly monitor and catalogue
every single movement of an individual’s car for a very long period.

That’s likely a false assumption, particularly given the storage capacity our government is using to surveil us and the requirements on cell phone companies to store data.

Sotomayor, IMO, is the only one ready to articulate where all this is heading. She makes it clear that she sides with those that see a problem with electronic surveillance too.

I would take these attributes of GPS monitoring into account when considering the existence of a reasonable societal expectation of privacy in the sum of one’s public movements. I would ask whether people reasonably expect that their movements will be recorded and aggregated in a manner that enables the Government to ascertain, more or less at will, their political and religious beliefs, sexual habits, and so on.

[snip]

I would also consider the appropriateness of entrusting to the, in the absence of any oversight from a coordinate branch, a tool so amenable to misuse, especially in light of the Fourth Amendment’s goal to curb arbitrary exercises of police power to and prevent“a too permeating police surveillance,”

And in a footnote, makes a broader claim about the current expectation of privacy than Alito makes.

Owners of GPS-equipped cars and smartphones do not contemplate that these devices will be used to enable covert surveillance of their movements.

Ultimately, the other Justices have not tipped their hand where they’ll come down on more generalized issues of cell phone based surveillance. Sotomayor’s opinion actually doesn’t go much further than Scalia claims to when he says they can return to Katz on such issues–but obviously none of the other Republicans joined her opinion. And all those who joined Alito’s opinion seem to be hiding behind the squishy definitions that will allow them to flip flop when the Administration invokes national security.

Update: This is a great post on what Jones means for the Fourth Amendment more generally.

SCOTUS and GPS Tracking: US v. Jones and Secret PATRIOT

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As I read the transcript of the SCOTUS hearing in the US v. Jones yesterday, I was most interested in what the comments suggest about the government’s secret use of the PATRIOT Act to–presumably–use phone geolocation to track people. (Here’s Dahlia Lithwick, Orrin Kerr, Julian Sanchez, Lyle Denniston, and Kashmir Hill on the hearing itself.)

Mind you, the facts in Jones are totally different from what we think may be happening with Secret PATRIOT (I’ll borrow Julian Sanchez’ speculation on what Secret PATRIOT does for this post). In Jones, a suspected drug dealer had a GPS device placed on his car after the 10-day warrant authorizing the cops to do so had already expired. As such, Jones tests generally whether the government needs an active warrant to track a suspect using GPS.

Whereas with Secret PATRIOT, the government is probably using Section 215 to collect the geolocation data from a large group of people–most of them totally innocent–to learn whom suspected terrorists are hanging around with. Not only does Secret PATRIOT probably use the geolocation of people not suspected of any crime (Section 215 requires only that the data be relevant to an investigation into terrorists, not that the people whose records they collect have any tie to a suspected terrorist), but it collects that information using a device–a cell phone–that people consensually choose to carry. Moreover, whereas in Jones, the government was tracking his car in “public” (though Justice Sotomayor challenges that to a degree), Secret PATRIOT probably tracks the location of people in private space, as well. Another significant difference is that, in Jones, the government is doing the tracking themselves; in Secret PATRIOT they probably get tracking data under the guise of business records from cell phone companies.

Nevertheless, the concerns expressed by the Justices seem to be directly relevant to Secret PATRIOT. After all, Chief Justice Roberts almost immediately highlighted that the government’s argument–that the use of GPS to track cars on public streets was not a search and therefore it did not need probable cause to use it on anyone–meant that the government could also use GPS trackers on the Justices themselves.

CHIEF JUSTICE ROBERTS: You think there would also not be a search if you put a GPS device on all of our cars, monitored our movements for a month? You think you’re entitled to do that under your theory?

MR. DREEBEN: The justices of this Court?

CHIEF JUSTICE ROBERTS: Yes.

(Laughter.)

MR. DREEBEN: Under our theory and under this Court’s cases, the justices of this Court when driving on public roadways have no greater expectation

CHIEF JUSTICE ROBERTS: So your answer is yes, you could tomorrow decide that you put a GPS device on every one of our cars, follow us for a month; no problem under the Constitution?

[snip]

CHIEF JUSTICE ROBERTS: Well, then you’re -you’re moving away from your argument. Your argument is, it doesn’t depend how much suspicion you have, it doesn’t depend on how urgent it is. Your argument is you can do it, period. You don’t have to give any reason. It doesn’t have to be limited in any way, right?

MR. DREEBEN: That is correct, Mr. Chief Justice.

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