The End Of Roe v. Wade

Is the title of this post alarmist? No, not really. That is effectively what the new Texas law has done, and has now been fulsomely endorsed by the Supreme Court, without even the courtesy of full briefing, oral argument and a merits decision. It was known this was coming when SCOTUS let this bunk take effect yesterday morning without action, it was just a question of what the backroom dynamics were in that regard. Now we know.

Here is the “decision”. As anti-climatic as it is, it is important. This is decision on a law, and the words count.

It is madness upon not just in Texas, but the entire country. These earth shattering decisions used to come only after full briefing and argument. No longer, now the shadow path is supreme.

Agree with Mark Joseph Stern in Slate when he says this:

At midnight on Wednesday, in an unsigned, 5–4 decision, the Supreme Court effectively overturned Roe v. Wade. The five most conservative Republican-appointed justices refused to block Texas’ abortion ban, which allows anyone to sue any individual who “aids or abets” an abortion after six weeks, when the vast majority occur. There is no exception for rape or incest. The decision renders almost all abortions in Texas illegal for the first time since 1973. Although the majority did not say these words exactly, the upshot of Wednesday’s decision is undeniable: The Supreme Court has abandoned the constitutional right to abortion. Roe is no longer good law.

Texas’ ban, known as SB 8, constitutes a uniquely insidious workaround to Roe. It outlaws abortion after six weeks, but does not call on state officials to enforce its restrictions.
Instead, as Justice Sonia Sotomayor wrote in dissent, the law “deputized the state’s citizens as bounty hunters, offering them cash prizes for civilly prosecuting their neighbors’ medical procedures.” Random strangers can sue any “abettor” to an abortion anywhere in Texas and collect a minimum of $10,000, plus attorneys’ fees. The act’s language is incredibly broad, encompassing any friend, family member, clergy member, or counselor who facilitates the abortion in any way. Every employee of an abortion clinic, from front-desk staff to doctors, is liable as well. And when an individual successfully sues an abortion provider, the court must permanently shut it down.

What other questions does this action, really inaction, by SCOTUS generate? A lot. Peterr asked this elsewhere:

Next up, perhaps, in the Texas legislature, now that SCOTUS has affirmed (5-4) their new approach to enforcement of state laws . . .

Texas declares that black and hispanic people shall not be allowed to vote, and delegates enforcement to any citizen, allowing them to sue for at least $10,000 if they can prove a black or hispanic person voted.

Texas declares that marriage is reserved to one man and one woman, and delegates enforcement to any citizen, allowing them to sue any same-sex couple who presents themselves in any form or fashion as “married” for at least $25,000 . . .

etc. etc. etc.

Again, not hyperbole. For now though, it is crystal clear that Roe is gone. There will be different laws in different states, at best. That is it.

What happens when states like Texas/their citizen plaintiffs start trying to enforce their craven law as to conduct occurring in other states? I don’t know, but that is the next horizon.

At any rate, this is going to be a problem for a very long time. If SCOTUS will do this though, given their clear previous precedent contrary to today’s order, means you can kiss voting rights cases goodbye.

It is a not so brave, nor honorable, new Supreme Court world.

Mirriam Seddiq, Dulles Justice and New Effort For Afghan Evacuees

Woke up to see that one of our favorite commenters, Eureka, noted Marcy’s retweet of MirriamZary from late last night. There are so many new folks here, and such a hurricane of strife, in the four and a half years since Trump set the first Muslim Travel ban that I thought a little backstory would be good about now. So, here we go.

@MirriamZary is her Twitter handle, but her real name is Mirriam Seddiq, and she is totally kick ass. I’ve twitter known her forever, there are a certain group of criminal defense attorneys that have long known and interacted with each other, on and off of twitter, and she has very long been one.

The day Trump instituted the Muslim ban in 2017, Mirriam, her partner at Seddiq Law, Justin Eisele, and some local attorney colleagues founded Dulles Justice and camped out at Dulles airport protesting the way Muslims were being detained and denied legal immigration assistance. They gave advice to families concerned, and laid a lot of the initial basis that soon got the Muslim ban set aside. Also inspired similar efforts in international airports all over the country, including here.

It was so inspiring that, after getting some tips from her work, I got off my butt and went and joined some other friends at our local Sky Harbor airport to do the same. That occurred all over the country. Thankfully, it was not that much of a legal problem here, and most of our time went into protesting (and it was a pretty big one) for news cameras and reporters, and not into having to address legal issues and problems. Soon the travel ban was set aside, and a lot of the impetus on the ground started with Mirriam and Dulles Justice. She is a hero, and is clearly now back at it. By necessity, yet again.

So, that is the back story of MirriamZary. Updates will likely be necessary as events are unfolding quite fast. How the Afghan evacuees are treated in the US, and elsewhere, will be an ongoing story and concern for quite some time.

As a coda, for now anyway, I’d like to point out how awesome women criminal defense attorneys are. You may remember me mentioning it here at EW. I took after Kathleen Walsh almost immediately on Twitter because I was so outraged and disgusted by her demeaning article. That was just the start, I kept on for a bit, because Walsh deserved it. Another one of the evil criminal defense attorneys, my pal Scott Greenfield, did a fantastic post on Walsh’s uninformed nonsense. What Kathleen Walsh doesn’t understand is what defense attorneys, and women are a core part of them, really do. They kick ass and take names, and Mirriam Seddiq is a prime example of that.

Wegman and NYT on Judge Katzmann

I noted this on Twitter, but there is a really important opinion piece at the NYT by Jesse Wegman on Judge Robert Katzmann, who passed away this week far too early at age 68. Usually, when NYT or WaPo etc. are brought up they are being bashed, but not today. Jesse Wegman has penned a magnificent, and compact, honor to Judge Katzmann, and you should read it.

I will not overly quote it because I want you to go read Jesse’s work. Suffice it to say that most of the world knows Robert Katzmann as the dissenting judge in a 2-1 2nd
Circuit opinion on Brady v. NFL, the Deflategate opinion, that got it right. But he was so much more than that. One of the most brilliant of judges, and best writers, of a couple of generations. Yes, the exact kind of judge you want on the bench. As Mr. Wegman intones, we need more Katzmanns on the bench. Even under Dem Presidencies, the country is not getting enough of them.

Without further adieu, here is a taste:

“The complicated humanity of others — whether judges, litigants, citizens or lawmakers — was at the heart of Judge Katzmann’s understanding of the world. He saw it in the work of Congress, where laws that are supposed to serve as clear guideposts are often vague, ambiguous or self-contradictory, like the people who wrote them. Some jurists see all that messiness as irrelevant if not dangerous, and steer as far from it as possible. Supreme Court Justice Antonin Scalia was the leading advocate of this approach, known as textualism, and refused to consider anything that was not in the black-and-white text of the law in front of him.

Judge Katzmann, the first ever federal judge with a Ph.D. in political science, worked from a more balanced perspective. Laws are “expressions by the people’s representatives of this nation’s aspirations, its challenges, and approaches to those challenges,” he wrote. “When judges interpret the words of statutes, they are not simply performing a task. They are maintaining an unspoken covenant with the citizenry on whose trust the authority and vitality of an independent judiciary depend.”

Go read the whole thing. It is a portrait of what you want a judge to be. Katzmann was superlative. But he is not alone, there are many judges out there trying to do the right thing, and not getting enough credit for it. I see them in court, and have for a very long time. Even know a few. But it is harder to see from the 30,000 feet airplane view of the internet. Robert Katzmann was special, but there are others too.

Derek Chauvin Verdict

height=It is in, we just do not know it yet. OJ aside, a verdict coming this soon is often, if not usually, a tell.

Honestly, I think the way the trial judge, Peter Cahill has been an absolute embarrassment to due process and fundamental fairness. The amount of appealable error (that does NOT mean successful appealable error) Cahill has injectect is deplorable and nuts. That guy should not be sitting on any important criminal trial bench.

But, while we do not yet know what it is, this is a thread to discuss it. Evidentiary infirmities and bullshit argument from both sides and all.

On Merrick Garland’s Confirmation

As you may, or may not, have heard, Merrick Garland was confirmed, by a vote of 70-30, as the next Attorney General for the United States a few minutes ago. That is a good thing. Garland is a competent, and stabilizing, presence that will be very good for the Department of Justice. And, man can the DOJ use that about now.

But, before people do too many backflips, remember that Merrick Garland is no avenging liberal hero. He has a horrible record on criminal justice issues, and very long has. He is a built in stabilizer, but certainly not as the once and future cure for the ills of the justice system, which at his new job will be front and center.

Is Garland the cure? No. He is an admirable and good man that will restore some bit of normalcy and, hopefully, consistent competence to the DOJ. That alone means everything right now in the wake of the disastrous Jeff Sessions, Matt Whitaker and William Barr eras under Donald Trump. The resetting and stabilization is critical right now.

There are a bunch of just below the AG nominees Biden has made that are great. As Marcy noted previously, Vanita Gupta and Kristen Clarke are excellent people. And, yes, even Lisa Monaco (as DAG) will likely be a competent and worthy person in leadership. Didn’t see me saying that ten years ago. There are also outstanding former DOJ people like Sam Bagenstos and Sasha Samberg-Champion returning to government, even if not at the DOJ, and they are taking pay hits to do so. Be thankful for those, and similar, people because that is also truly good stuff.

In short, all are tectonic shifts in the right direction from the disastrous Trump years. But, as to Garland, let’s wait and see. He was a good and stable choice. Before you place your hopes and dreams on him too much, however, let him show his work. On criminal justice, his history of work has been, shall we say, rather uneven. There were several warts when Obama nominated Garland for the Supreme Court, and there still are. For now though, great.

On Conspiracy

In comments, Harpie went back to Elizabeth de la Vega’s summary of conspiracy.

Since Eureka brought this up above, I figured it might be timely to post it again:

Conspiracy Law – Eight Things You Need to Know.
One: Co-conspirators don’t have to explicitly agree to conspire & there doesn’t need to be a written agreement; in fact, they almost never explicitly agree to conspire & it would be nuts to have a written agreement!
Two: Conspiracies can have more than one object- i.e. conspiracy to defraud U.S. and to obstruct justice. The object is the goal. Members could have completely different reasons (motives) for wanting to achieve that goal.
Three: All co-conspirators have to agree on at least one object of the conspiracy.
Four: Co-conspirators can use multiple means to carry out the conspiracy, i.e., releasing stolen emails, collaborating on fraudulent social media ops, laundering campaign contributions.
Five: Co-conspirators don’t have to know precisely what the others are doing, and, in large conspiracies, they rarely do.
Six: Once someone is found to have knowingly joined a conspiracy, he/she is responsible for all acts of other co-conspirators.
Seven: Statements of any co-conspirator made to further the conspiracy may be introduced into evidence against any other co-conspirator.
Eight: Overt Acts taken in furtherance of a conspiracy need not be illegal. A POTUS’ public statement that “Russia is a hoax,” e.g., might not be illegal (or even make any sense), but it could be an overt act in furtherance of a conspiracy to obstruct justice.

de la Vega has been consistently good on conspiracy going back to the first failed impeachment effort and the lead up to it. I posted this at least once before, think on a post I penned, but not sure, so am going to put this out here again.

At any rate, here are a set of model jury instructions (that I have previously patterned off of for real trials) for a conspiracy case. They are for a drug case, but conspiracy is conspiracy, and the law is pretty much the same, and has long been. What Harpie cited from de la Vega is correct. But to give you a look at how it actually goes down in a court, check out actual pattern jury instructions, because real instructions are always the guide in a real criminal trial. Substitute in the elements for 18 USC §373 and 18 USC §2101, or any of the other various putative crimes being discussed ad nauseam and you will get the picture.

As you read through them, keep in mind the question of “what holes could a competent criminal defense attorney drive a truck through here given a beyond a reasonable doubt burden?”

Now would Trump acquire an actually competent criminal defense attorney were, in the unlikely event he is really charged? Now there is a great question! But, if he were to, there are currently still a LOT of holes. People are getting ahead of themselves. Read the instructions, they scan pretty fast. But keep in mind that once you charge and put a defendant, any defendant, on trial, things are not as easy as they are here or on social media.

Trump Impeachment II – The Beginning

And so it begins any minute now. Don’t fret, it will not take long, because Pelosi, Schumer and the Dems have so decreed out of political cowardice. Is that politically expedient at the start of the nascent Biden Administration? Maybe! But they all took an oath to protect and defend the Constitution, not their political expediency.

So where are we at the onset of proceedings?

The tentative schedule is this:

First, there will be a debate over the “Constitutionality” of even holding and impeachment trial at all. This is a ridiculous argument, and will fail, but with much cowardly GOP Senate support.

There will be up to four hours equally divided between the impeachment managers and the president’s counsel to debate the constitutionality of the trial. Again, that will fail as to Trump. Then there will be sixteen hours per side to argue their case. It will be predictable baloney from both sides, with no actual evidence submitted and admitted. And, no, “video presentations” do not count, that is simply argument by propaganda. Each party’s arguments are delimited by not being able to go over two days, and cannot exceed eight hours each.

“After the presentations are done, senators will have a total of four hours to question both sides. Then there will be four hours divided equally between the parties for arguments on whether the Senate will consider motions to subpoena witnesses and documents, if requested by the managers.

There will be up to four hours equally divided for closing arguments, along with deliberation time if requested by the senators before the vote takes place.”

Much of the above, though not all, came from an excellent report by Barbara Sprunt and Diedre Walsh at NPR.

Is this year another stupid and truncated show trial by Pelosi, Schumer and the Dems, in order to look like they are doing something while they are cowering? Of course it is. Same as it ever was.

There will also be discussion of an “organizing resolution”. Don’t fall for that, the parameters have already been agreed to behind the scenes.

Lastly, while joint stipulations may always be made, otherwise the general parameters are controlled by the extant Senate Rules on Impeachment. They are here for your reference.

And here is Leahy’s feckless “Dear Colleagues” letter.

Donnie The Wimp And His Impeachment Coffin

There was a pretty astounding report by CNN early this morning depicting the, and I am being kind here, disarray in Trump’s impeachment defense. The gist is this:

Butch Bowers and Deborah Barbier, who were expected to be two of the lead attorneys, are no longer on the team. A source familiar with the changes said it was a mutual decision for both to leave the legal team. As the lead attorney, Bowers assembled the team.
Josh Howard, a North Carolina attorney who was recently added to the team, has also left, according to another source familiar with the changes. Johnny Gasser and Greg Harris, from South Carolina, are no longer involved with the case, either.

No other attorneys have announced they are working on Trump’s impeachment defense.

A person familiar with the departures told CNN that Trump wanted the attorneys to argue there was mass election fraud and that the election was stolen from him rather than focus on the legality of convicting a president after he’s left office. Trump was not receptive to the discussions about how they should proceed in that regard.

That sounds ominous!

But here is the part that even more stuck out to me:

“As the lead attorney, Bowers assembled the team.”

and, most notably,

“The attorneys had not yet been paid any advance fees and a letter of intent was never signed.”

Lol, for the uninitiated, that means Trump never paid a dime as to a retainer, and never signed a fee agreement. That not only is inappropriate, in most jurisdictions it is, in and of itself, unethical. Even when the lawyer is agreeing to do work pro bono, there is a retainer agreement. Always, because real lawyers don’t blithely hang their asses out on the line without specified parameters. That is just how it is.

As I said on Twitter:

A rather large discussion ensued. Go look if you so desire, but I will stand by that for now. No, I do not really know, but it almost makes sense.

Trump is not cash rich. Expending collected campaign funds to perpetrate a fraudulent defense might be a dicey proposition. And no competent attorneys are lining up to pitch that. Trump may literally be down to Rudy and Jenna Ellis. Dershowitz and Jon Turley are squirrely as shit, but even they may not be that stupid.

So, where art thou go Donald?

Really Big Girl

Yeah, she was that and everything. RBG became a thing, not just in hip hop, but popular culture.

And she earned every ounce of it.

I once knew Sandra Day. Was she as much of a hero, especially to progressives that I would rather associate with? Nope.

But RBG came to be the successor, and a beyond awesome one. She set the scene. The scene that now lets Sotomayor and Kagan be on the court.

But, now, what? McConnell and Trump have laid clear their intentions. When evil jackasses tell you who they are, believe them.

RBG did not make it to the final lap. But you can. Know what is at stake, and get off your ass. The one thing the Democrats have never taken seriously enough is courts and judicial policy. I have been screaming this forever. So has has Dahlia Lithwick.

It is time for better attention to be paid.

Franks A Lot

Okay, I have been complaining about the lack of understanding of Franks v. Delaware warrant evaluation standards forever. I know there were ones previous, in other times, I am pretty sure there have been more times since, even if less formally on Twitter or in comments, but here was a big one in relation to the continued insanity over the appropriate warrant, and subsequent reauthorizations, as to Carter Page.

The universe of commenters on this, including Michael Horowitz, the vaunted DOJ IG, have ignored the mark. Not short sold it, but totally ignored it. Between Horowitz’s deficient 435 page “report” and, now, the SSCI Report, all 952 pages of it, neither has addressed the applicable standard as to Page. That is 1,387 pages of refusing to mention for a word, much less discuss for a sentence, paragraph or page, the actual controlling authority on the issue. And, no, no discussion of it all is honest or complete without it.

But, as I have relentlessly pointed out, Page was absolutely a proper CI target. The warrant issue is about far more than the whiny Carter Page. It is about much more than FISC warrants. The same law applies to all, and it is being made a joke through through the Page nonsense.

The latest example is this case in NY State Court. I am not going to embed a bunch of tweets, read the thread for yourself. The pertinent case is described in this thread by Sam Feldman, as noted by Carissa Byrne Hessick. Later Scott Greenfield noted, appropriately, that the instant decision was done by the court, even if bogusly, under the old 1974 NY State case of People v. Darden. But Darden is bad law in every regard. For a modern court to glom onto it is maybe not stunning, but extremely disconcerting.

Darden, among other infirmities, relied on Roviaro v. US, a case that so stands for the opposite of what the Darden court advocated, it is hilarious. Literally the exact opposite.

But this is where the discussion is now thanks to the bogus discussion regarding the curious and disturbing character Carter Page. The micro analysis of all this has been ludicrous. If you cannot address the basic standards of warrants, how they apply to the initial, and then reauthorization warrants, for Page, and far more than just noisy FISC ones, it is a failed discussion.

I think a lot of people did not take me seriously as I relentlessly said that the warrant issue, whether FISC or Title III, was about far more than Carter Page. Well, here is a concrete example, even under related state law. There are serious issues here, and they go far deeper than the charlatan Carter Page. These issues are universal and critical.

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