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

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

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

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

[snip]

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

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

[snip]

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

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

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

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

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

Six Weeks: The Tactics of Sammy Alito’s Abortion

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

I’d like to talk about tactics.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

This is complete and utter bullshit:

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

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

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

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

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

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

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

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

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

Why is that?

~ ~ ~

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

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

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

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

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

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

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

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

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

~ ~ ~

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

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

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

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

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

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

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

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

That’d be Must-See TV.

~ ~ ~

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

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

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

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

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

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

~ ~ ~

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

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

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

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

Congressional switchboard: (202) 224-3121

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

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

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

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

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

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

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

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

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

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

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

[snip]

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[snip]

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

[snip]

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

[snip]

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

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

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

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

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

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

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

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

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

[snip]

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

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

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

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

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

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

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

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

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

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


Carl Nichols, March 7, 2022, Miller

David Carter, March 28, 2022, Eastman

Opinions upholding obstruction application:

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

 

Clarence Thomas’ Non-Recusal Might Have Also Hidden the Missing Mark Meadows Texts

As folks were discussing in comments, yesterday WaPo and CBS revealed damning details about communications between Ginni Thomas and Mark Meadows leading up to the insurrection. About 1% of the texts Meadows turned over to the January 6 Committee involved Ms. Thomas.

The messages, which do not directly reference Justice Thomas or the Supreme Court, show for the first time how Ginni Thomas used her access to Trump’s inner circle to promote and seek to guide the president’s strategy to overturn the election results — and how receptive and grateful Meadows said he was to receive her advice. Among Thomas’s stated goals in the messages was for lawyer Sidney Powell, who promoted incendiary and unsupported claims about the election, to be “the lead and the face” of Trump’s legal team.

The text messages were among 2,320 that Meadows provided to the House select committee investigating the Jan. 6 attack on the U.S. Capitol. The content of messages between Thomas and Meadows — 21 sent by her, eight by him – has not previously been reported. They were reviewed by The Post and CBS News and then confirmed by five people who have seen the committee’s documents.

[snip]

It is unknown whether Ginni Thomas and Meadows exchanged additional messages between the election and Biden’s inauguration beyond the 29 received by the committee. Shortly after providing the 2,320 messages, Meadows ceased cooperating with the committee, arguing that any further engagement could violate Trump’s claims of executive privilege. Committee members and aides said they believe the messages may be just a portion of the pair’s total exchanges.

As WaPo notes, after November 24, there are no more texts provided to the Committee until after the riot.

The text exchanges with Thomas that Meadows provided to the House select committee pause after Nov. 24, 2020, with an unexplained gap in correspondence. The committee received one additional message sent by Thomas to Meadows, on Jan. 10, four days after the “Stop the Steal” rally Thomas said she attended and the deadly attack on the Capitol.

You can click through to read what a nutjob Ms. Thomas is. But for this post, I’m interested in the how the texts that got turned over or did not relate to Justice Thomas’ decision, on January 19, not just not to recuse from the decision on whether Trump’s invocation of privilege over materials at the Archives, but to cast the single vote to uphold Trump’s privilege claim. Thomas’ participation in that decision may have had the effect of making a decision that would have — if four other Justices agreed with him — had the effect of shielding damning communications involving his spouse.

This table is just a sketch, but one I hope helps the discussion among those who know the law and the details of the various requests better than I. This table shows that had Thomas’ decision been successful, it probably would have prevented damning texts from his spouse from being shared with the Committee (or, ultimately, DOJ’s criminal investigators), but just as importantly would have hidden the absence and possible destruction of some records that would be covered both by the Presidential Records Act (marked as PRA in the table) and relevant to the by-then ongoing grand jury investigation (marked as obstruction).

Several factors affect the legal status of any texts that should have been covered by Justice Thomas’ participation:

  • Trump’s claims of privilege were absurdly broad, covering things like visitor logs that under other Presidents are routinely released
  • While Mark Meadows’ claims of privilege were not as absurd as (say) Steve Bannon’s, it seems likely he, too, took an expansive approach to privilege claims
  • All of Trump’s flunkies (including Meadows and Bannon) were using Trump’s claims of privilege to justify withholding purportedly privileged in their own possession
  • Anything Meadows claimed was covered by privilege would be covered by the Presidential Records Act and so should have been — but in Meadows’ case, because he did White House business on his personal email and phone, often were not — shared with the Archives
  • Mark Meadows replaced his phone after the time multiple grand juries had started an investigation into January 6; replacing his phone had the likely effect of destroying any communications not otherwise stored in or backed up to the cloud; the risk he destroyed Signal texts is particularly high

Justice Thomas’ decision would have covered everything in the first line: privileged comms that were properly archived, privileged stuff that Meadows didn’t archive, and privileged stuff that got destroyed. The scenario I’m seeing a lot of people address is just box (A), with the logic being, what if there were comms that were actually archived involving Ginni that were deemed privileged, what if those comms were especially damning?

But the decision that such comms are not privileged means the Committee and DOJ can now address stuff in Meadows’ possession and/or that have been destroyed. As it happened, the Committee has been able to identify Meadows comms in box (E) and possibly even in box (F) via his production: things that should have been archived but were not (this post and this post address the kinds of communications described in Meadows’ contempt referral are in box (E)). It is virtually certain there are a bunch of comms in box (B): stuff Meadows treated as privileged that were not properly archived. Now both the Committee and DOJ can claim those are covered by his contempt. In the process, the Committee or, more likely, DOJ may discover communications involving the former President that should have been archived, proof not just that Meadows is in contempt, but also that he violated the PRA.

The real risk to Meadows, though — and the place where Justice Thomas’ ethical violations could turn into something else — comes in box (C): with comms that, because of the broadness of the original privilege claims, would be treated under Trump’s now defeated privilege claim, but comms that, because Meadows replaced his phone during an ongoing grand jury investigation, the destruction of which might amount to obstruction of that investigation.

What DOJ is doing with other criminal subjects in the January 6 investigation is identifying Signal and Telegram texts that got destroyed on one phone by seizing the phones of others who did not destroy their side of the communication. In the case of Meadows, for example, we’ve already identified a Signal text that seems to remain in Jim Jordan’s custody but that Meadows may no longer have.

Justice Thomas’ failed attempt to uphold Trump’s (and therefore Meadows’) insanely broad privilege claims might have had the effect of making it clear that Meadows had destroyed privileged communications that would be covered by the ongoing January 6 grand jury investigation.

It’s not just embarrassing texts involving his spouse that Justice Thomas could have covered up with his participation in that decision. It is also potential criminal obstruction exposure because Meadows replaced his phone.

Particularly given the big gap in texts in what Meadows turned over between November 24 and January 10, those might be far more important than the crazypants things Ginni said.

Father Doesn’t Know Best: Kavanaugh and Women’s Unshared Traumas

[NB: Check the byline. / ~Rayne]

This weekend brought back some ugly memories, one of which involved my father. We’ve never had a close relationship; it was rocky at times. But in 1991 one phone conversation particularly damaged my meager relations with him.

I can’t even remember why we had been talking on the phone — did he call me? Did I call him? The context’s utterly irrelevant now after all this time. But we butted heads about the Senate Judiciary Committee’s Clarence Thomas confirmation hearings.

Dad’s not political though he’s always been conservative. He’s a professional in a STEM field, raised Catholic, and a post-WWII veteran. Sadly, Dad’s racist in spite of being brown himself. This may come from having been raised where he was in the majority and not a minority. He wasn’t overtly racist as his closest friend in college was African. He’s not been overtly sexist. In my teens he argued with a small town school board so I could take wood shop. They didn’t let girls take that course in the early 1970s. Nor was I punished for bringing home Cs in typing though they were the lowest grades I’d ever had. He knew I’d need nominal keyboard skills as I was pursuing a STEM education in college.

But in all that I had known about my father by the time I was 30 years old, I’d made a miscalculation.

In that conversation we’d drifted into current affairs and the Senate’s hearing. I told him I was very upset. I’d hoped Clarence Thomas wouldn’t be confirmed. He wasn’t Supreme Court material based on his background and Hill’s testimony put Thomas’ character into question.

My father said he didn’t know why Anita Hill waited so long to say anything to anybody. Why hadn’t she spoken out at the time Thomas was harassing her? He suggested Hill was acting in bad faith.

I couldn’t say anything. Words wouldn’t come. It was as if I was talking to a stranger. To whom would a black woman go to complain about her boss’s sexual harassment? Especially if her boss was the chair of the Equal Employment Opportunity Commission? Who would take a young black woman’s word over that of a black man, let alone a man in charge of the EEOC? Why would a young black woman subject herself to more harassment by Senate Judiciary Committee and the public if not to protect the Supreme Court from an unworthy nominee?

At some point my understanding of the world forked sharply away from my father’s. It’s not as if he didn’t know women faced gross inequality. The fact he had to fight for my shop class was a concrete example. He’d heard plenty of stories about gender bias, sexual harassment and assault from my mother who worked in health care. Did he think that every girl or woman had some man who could make it better by going to bat for her? That some man would have resolved the harassment Hill faced in the work place had she simply come and asked them for help?

I didn’t know if he was naive. I didn’t know if this was a manifestation of his nebulous racism at some level. I didn’t know if it was misogyny I’d not detected in my father’s makeup to that point.

It took me a long time to get over this. I don’t know yet if I am over it because I struggled with the phrasing of that last sentence. I felt betrayed, as if he’d never seen the world as it was, nor had he seen me. I felt I’d betrayed myself for not seeing him more clearly.

It was some time before I realized he was as sexist as he was racist. Not overtly, and in spite of having two daughters in non-traditional STEM education paths — but his sexism was there and I’d internalized it.

It took me a while longer to realize I’d buried an episode which should have created a more realistic perception of my father.

~|~|~

When I was a pre-teen a group of boys harassed me. There was bodily contact, sexualized language, grabbing at clothing during class. The male teacher ejected me from class. He told my parents I was “precocious” which made no sense to me since I was a year younger and much smaller than the rest of my class, and I alone had been targeted. My father negotiated with the teacher and principal to let me to take this class independently — as if I was the one at fault and not the boys who’d harassed me. I was the one in the wrong because I was a girl. My father accepted this as fact. He didn’t demand the teacher do a better job of supervising his classroom.

I would bet good money that if asked now, none of the boys would remember harassing me. They might not even remember I was a former classmate. The situation mattered little to them, not changing their world one iota.

I never spoke with my father again about any problems I had with boys and men. I was on my own with the boys who shoved me around and pawed at me throughout high school or stole my drafting and engineering equipment. I was on my own when I got my first job in manufacturing as a co-op student, dealing with cat calls and sexual taunts and threats of violence. On my own when I didn’t get a raise when my boss said “his boys” in the department needed the raise that year.

Over the last couple of decades I’ve talked with many other girls and women about harassment. It’s nearly universal that women face it and sometimes with violence. Let me emphasize this: there are many, MANY women who were harassed, abused, assaulted in school and beyond who never reported it. They may never even have spoken about their experiences. But the system disempowers and marginalizes us; it maintains the status quo and actively resists change. It questions our ability to speak for ourselves. It places the value of a man’s career and lifestyle above any woman’s. Women’s empowerment and the ability to effect positive change has been close at times but we are still celebrating so many firsts. We haven’t yet a first woman president, or a first half of the Supreme Court or Congress, leaving us without adequate representation to protect our rights and interests though we are half this nation and give birth to the rest.

~|~|~

The revelation of Christine Blasey Ford’s name and the release of her letter to Senator Feinstein triggered memories. The harassment and abuse by teen boys, the Thomas confirmation hearings, that 1991 conversation with my father bubbled back up. Many women likewise revisited their own experiences. I’ve read their tweets consoling each other across Twitter. We and our traumas are finally seen and heard by each other in great numbers, but not by our government.

Like my father, this government assumes it’s her fault, not his. This government will go after Ford for speaking her truth. Its proxies villified her, some for not coming forward sooner though it wasn’t prepared and willing to help her back then. The system itself harasses women.

It wasn’t my fault I was harassed and abused. It wasn’t Anita Hill’s fault she was harassed, either, nor was it our fault we didn’t come forward. We couldn’t. It wasn’t Ford’s fault she was a 15-year-old abused by older teen boys at a time when such attacks were normalized in pop culture as humor. She couldn’t come forward then, either.

But now we and our many sisters can come forward together and say we believe Ford. We can say that what happened to her mattered then. It matters now because girls and women have a right to personal autonomy and self-determination. We can say that one man with a history of harassment seated for life on the highest court is more than enough, and that an admitted abuser has no right to appoint another man with a questionable history to the bench.

We can say it’s enough that Brett Kavanaugh has not been forthcoming about his shady finances even when asked to reply in writing. It’s beyond enough that he’s been a party to hiding a majority of his work. We can say we have heard enough of his prevarications before the Senate Judiciary Committee this month and in 2006.

We come forward now and say this is enough: Kavanaugh is not Supreme Court material and should withdraw his nomination. He should not be confirmed by the Senate.

At the very least Kavanaugh’s confirmation vote should be delayed. We should hear Ford’s testimony and Kavanaugh’s rebuttal, and as Marcy suggests, a witness to the assault on Ford.

~|~|~

Call your senator and ask for a delay on Kavanaugh’s confirmation; it would be better if Kavanaugh withdrew if we can’t hear from Ford, Kavanaugh and witnesses. Your calls are working at shifting GOP senators’ opinions.

Congressional switchboard: (202) 224-3121

Riley Meets the Dragnet: Does “Inspection” amount to “Rummaging”?

It’s clear today’s decision in Riley v. California will be important in the criminal justice context. What’s less clear is its impact for national security dragnets.

To answer the question, though, we should remember that question really amounts to several. Does it affect the existing phone dragnet, which aspires to collect the phone records of every person in the US? Does it affect the government’s process of collecting massive amounts of data from which to cull an individual’s data to make up a “fingerprint” that can be used for targeting and other purposes? Will it affect the program the government plans to implement under USA Freedumber, in which the telecoms perform connection-based chaining for the NSA, and then return Call Detail Records as results? Does it affect Section 702? I think the answer may be different for each of these, though I think John Roberts’ language is dangerous for all of this.

In any case, Roberts wants it to be unclear. This footnote, especially, claims this opinion does not implicate cases — governed by the Third Party doctrine — where the collection of data is not considered a search.

1Because the United States and California agree that these cases involve searches incident to arrest, these cases do not implicate the question whether the collection or inspection of aggregated digital information amounts to a search under other circumstances.

Orin Kerr reads this as addressing the mosaic theory directly — which holds that a Fourth Amendment review must consider the entirety of the government collection — (and he is the expert, after all). Though I’m not impressed with his claim that the analogue language Roberts uses directly addresses the mosaic theory; Kerr seems to be arguing that because Roberts finds another argument unwieldy, he must be addressing the theory that Kerr himself finds unwieldy. Moreover, in addition to  this section, which Kerr says supports the Mosaic theory,

An Internet search and browsing history, for example, can be found on an Internet-enabled phone and could reveal an individual’s private interests or concerns—perhaps a search for certain symptoms of disease, coupled with frequent visits to WebMD. Data on a cell phone can also reveal where a person has been. Historic location information is a stand-ard feature on many smart phones and can reconstruct someone’s specific movements down to the minute, not only around town but also within a particular building. See United States v. Jones, 565 U. S. ___, ___ (2012) (SOTOMAYOR, J., concurring) (slip op., at 3) (“GPS monitoring generates a precise, comprehensive record of a person’s public movements that reflects a wealth of detail about her familial, political, professional, religious, and sexual associations.”).

I think the paragraph below it also supports the Mosaic theory — particularly its reference to a “revealing montage of the user’s life.”

Mobile application software on a cell phone, or “apps,” offer a range of tools for managing detailed information about all aspects of a person’s life. There are apps for Democratic Party news and Republican Party news; apps for alcohol, drug, and gambling addictions; apps for sharing prayer requests; apps for tracking pregnancy symptoms; apps for planning your budget; apps for every conceivable hobby or pastime; apps for improving your romantic life. There are popular apps for buying or selling just about anything, and the records of such transactions may be accessible on the phone indefinitely. There are over a million apps available in each of the two major app stores; the phrase “there’s an app for that” is now part of the popular lexicon. The average smart phone user has installed 33 apps, which together can form a revealing montage of the user’s life.

I’d argue that the opinion as a whole endorses the notion that you need to assess the totality of the surveillance in question. But then the footnote adopts the awkward phrase, “collection or inspection of aggregated digital information,” to suggest there may be some arrangement under which the conduct of such analysis might not constitute a search requiring a higher standard. (And all that still leaves the likely possibility that the government would scream “special need” and get an exception to get the data anyway; as they surely will do to justify ongoing border searches of computers.)

Of crucial importance, then, Roberts seems to be saying that it might be okay to conduct mosaic analysis, depending on where you get the data and/or whether you actually obtain or instead simply inspect the data.

That’s crucial, of course, because the government is, as we speak, replacing a phone dragnet in which it collects all the data from everyone and analyzes it (or rather, claims to only access only a minuscule portion of it, claiming to do so only through phone-based contacts) with one where it will go to “inspect” the data at telecoms.

So Roberts seems to have left himself an out (or included language designed to placate even Democrats like Stephen Breyer, to say nothing of Clarence Thomas, to achieve unanimity) that happens to line up nicely with where the phone dragnet, at least, is heading.

All that said, Robert’s caveat may not be broad enough to cover the new-and-improved phone dragnet as the government plans to implement it. After all, the “connection” based analysis the government intends to do may only survive via some kind of argument that letting telecoms serve as surrogate spooks makes this kosher under the Fourth Amendment. Because we have every reason to expect that the NSA intends to — at least — tie multiple online and telecom identities together to chain on all of them, and use cell location to track who you meet. And they may well (likely, if not now, then eventually) intend to use things like calendars and address books that Roberts argues makes cell phones not cell phones, but minicomputers that serve as “cameras,video players, rolodexes, calendars, tape recorders, libraries, diaries, albums, televisions, maps, or newspapers.” Every single one of those minicomputer functions is a potential “connection” based chain.

So while the new-and-improved phone dragnet may fall under Roberts’ “inspect” language, it involves far more yoking of the many functions of cell phones that Roberts finds to be problematic.

Then there’s this passage, that Roberts used to deny the government the ability to “just” get call logs.

We also reject the United States’ final suggestion that officers should always be able to search a phone’s call log,as they did in Wurie’s case. The Government relies on Smith v. Maryland, 442 U. S. 735 (1979), which held that no warrant was required to use a pen register at telephone company premises to identify numbers dialed by a particular caller. The Court in that case, however, concluded that the use of a pen register was not a “search” at all under the Fourth Amendment. See id., at 745–746. There is no dispute here that the officers engaged in a search of Wurie’s cell phone. Moreover, call logs typically contain more than just phone numbers; they include any identifying information that an individual might add, such as the label “my house” in Wurie’s case. [my emphasis]

The first part of this passage makes a similar kind of distinction as you see in that footnote (and may support my suspicion that Roberts is trying to carve out space for the new-and-improved phone dragnet). Using a pen register at a telecom is not a search, because it doesn’t involve seizing the phone itself.

But the second part of this passage — which distinguishes between pen registers and call logs — seems to be the most direct assault on the Third Party doctrine in this opinion, because it suggests that data that has been enhanced by a user — phone numbers that are not just phone numbers — may not fall squarely under Smith v. Maryland.

And that’s important because the government intends to get far more data than phone numbers while at the telecoms under the new-and-improved phone dragnet. It surely at least aspires to get logs just like the one Roberts says the cops couldn’t get from Wurie.

Think, too, of how this should limit all the US person data the government collects overseas that the government then aggregates to make fingerprints, claiming incidentally collected data does not require any legal process. That data is seized not from telecoms but rather stolen off cables — does that count as public collection or seizure?

Perhaps the language that presents the most sweeping danger to the dragnet, however, is the line that both Kerr and I like best from the opinion.

Alternatively, the Government proposes that law enforcement agencies “develop protocols to address” concerns raised by cloud computing. Reply Brief in No. 13–212, pp. 14–15. Probably a good idea, but the Founders did not fight a revolution to gain the right to government agency protocols.

Admittedly, Roberts is addressing a specific issue, the government’s proposal of how to protect personal data stored on a cloud that might be accessed from a phone (as if the government gives a shit about such things!).

But the underlying principle is critical. For every single dragnet program the government conducts at NSA, it dismisses obvious Fourth Amendment concerns by pointing to minimization procedures.

The FISC allowed the government to conduct the phone dragnet because it had purportedly strict minimization procedures (which the government ignored); it allowed the government to conduct an Internet dragnet for the same reason; John Bates permitted the government to address domestic content collection he deemed a violation of the Fourth Amendment with new minimization procedures; and the 2008 FISCR opinion approving the Protect America Act (which FISCR and the government say covers FAA as well) relied on targeting and minimization procedures to judge it compliant with the Fourth Amendment. FISC is also increasingly using minimization procedures to deem other Section 215 collections compliant with the law, though we know almost nothing about what they’re collecting (though it’s almost certain they involve Mosaic collection).

Everything, everything, ev-er-y-thing the NSA does these days complies with the Fourth Amendment only under the theory that minimization procedures — “government agency protocols” — provide adequate protection under the Fourth Amendment.

It will take a lot of work, in cases in which the government will likely deny anyone has standing, with SCOTUS’ help, to make this argument. But John Roberts said today that the government agency protocols that have become the sole guardians of the Fourth Amendment are not actually what our Founders were thinking of.

Ultimately, though, this passage may be Roberts’ strongest condemnation — whether he means it or not — of the current dragnet.

Our cases have recognized that the Fourth Amendment was the founding generation’s response to the reviled “general warrants” and “writs of assistance” of the colonial era, which allowed British officers to rummage through homes in an unrestrained search for evidence of criminal activity. Opposition to such searches was in fact one of the driving forces behind the Revolution itself.

Roberts elsewhere says that cell searches are more intrusive than home searches. And by stealing and aggregating that data that originates on our cell phones, the government is indeed rummaging in unrestrained searches for evidence of criminal activity or dissidence. Roberts likely doesn’t imagine this language applies to the NSA (in part because NSA has downplayed what it is doing). But if anyone ever gets an opportunity to demonstrate all that NSA does to the Court, it will have to invent some hoops to deem it anything but digital rummaging.

I strongly suspect Roberts believes the government “inspects” rather than “rummages,” and so believes his opinion won’t affect the government’s ability to rummage, at least at the telecoms.  But a great deal of the language in this opinion raises big problems with the dragnets.

SCOTUS Conservatives in Anonymous Disarray

I expressed skepticism about the part of Jan Crawford’s story confirming John Roberts flipped his vote on ObamaCare that claimed Roberts had no role in writing the dissent.

Finally, there is Crawford’s not entirely convincing explanation for the relics in the dissent that seem to suggest Roberts had a hand in crafting the dissent, too.

The two sources say suggestions that parts of the dissent were originally Roberts’ actual majority decision for the Court are inaccurate, and that the dissent was a true joint effort.

The fact that the joint dissent doesn’t mention Roberts’ majority was not a sign of sloppiness, the sources said, but instead was a signal the conservatives no longer wished to engage in debate with him.

If true, those relics, which violate normal protocol for referring to other opinions, reflect a very big affront to Roberts’ governing opinion.

Salon now has a single anonymous source disputing Crawford’s two anonymous sources on this point.

Crawford’s sources insist on the claim that the joint dissent was authored specifically in response to Roberts’ majority opinion, without any participation from him at any point in the drafting process that created it. It would, after all, be fairly preposterous for the four dissenters to jointly “author” an opinion that was in large part written originally by the author of the majority opinion to which the joint dissenters were now so flamboyantly objecting.

Yet that, I am told by a source within the court with direct knowledge of the drafting process, is exactly what happened. My source insists that “most of the material in the first three quarters of the joint dissent was drafted in Chief Justice Roberts’ chambers in April and May.” Only the last portion of what eventually became the joint dissent was drafted without any participation by the chief justice.

[snip]

Roberts’ chamber did much of the drafting of the [first 46 pages of the dissent, which don’t mention Roberts’ opinion], and none of the [last 19 pages, which do mention it]. In short, it appears Chief Justice Roberts ended up in large part authoring both the majority opinion and the dissent in National Federation of Independent Business v. Sebelius.

Set aside the fact we’ve got a anonymous leak war going on, with neither side inherently garnering credibility. Set aside what Salon’s report, if correct, would suggest about Roberts.

I want to focus on what it means that comity in the court has broken down in this way. If Crawford’s report comes, as many suspected, from the conservative justices themselves, it would suggest they leaked a transparently illogical cover story (in that it didn’t explain the relics that made everyone suspicious about the dissent in the first place). They not only broke SCOTUS protocol about leaks, but did so and, reportedly, lied in doing so.

Then you’ve got a quick response from someone–could this be a Roberts clerk? one of the other conservatives?–calling out that purported lie.

To what end? To shift the emphasis on Roberts’ fickleness? To try to tone down the confrontational claims at the heart of the Crawford piece? And if another of the conservatives is behind the Salon report, then how do the original leakers feel about the story? What are the political objectives of each side of this anonymous leak war?

And all this is just what we can see through the screen of anonymity. The rancor this expresses must be worse in person.

Even if it’s all anonymous, I gotta say, I’m glad this leak fest has revealed the conservative justices in all their bitchy glory.

Read more

When Did Clarence Thomas Go to the Koch Conspiracy Fest? And Did He Bring Ginni?

As you’ve no doubt heard, the right wing conspiracy does exist. As the NYT reported the other day, the Koch brothers host semi-annual secret get-togethers to strategize with other rich conservatives and media people about how to advance their views.

The participants in Aspen dined under the stars at the top of the gondola run on Aspen Mountain, and listened to Glenn Beck of Fox News in a session titled, “Is America on the Road to Serfdom?” (The title refers to a classic of Austrian economic thought that informs libertarian ideology, popularized by Mr. Beck on his show.)The participants included some of the nation’s wealthiest families and biggest names in finance: private equity and hedge fund executives like John Childs, Cliff Asness, Steve Schwarzman and Ken Griffin; Phil Anschutz, the entertainment and media mogul ranked by Forbes as the 34th-richest person in the country; Rich DeVos, the co-founder of Amway; Steve Bechtel of the giant construction firm; and Kenneth Langone of Home Depot.

Sure, we’ve known that rich people work like this for a while; this report simply provides documentation of it.

But one detail of the NYT report deserves further scrutiny: the report that Clarence Thomas and Antonin Scalia have attended the gathering.

To encourage new participants, Mr. Koch offers to waive the $1,500 registration fee. And he notes that previous guests have included Justices Antonin Scalia and Clarence Thomas of the Supreme Court, Gov. Haley Barbour and Gov. Bobby Jindal, Senators Jim DeMint and Tom Coburn, and Representatives Mike Pence, Tom Price and Paul D. Ryan. [my emphasis]

Again, it’s not a surprise that the guy who duck-hunted with Dick Cheney while reviewing a suit involving the Vice President would hang around with the conservative elite.

But the report raises a whole slew of questions.

Think Progress has an important post looking at how Scalia and Thomas have been instrumental in loosening campaign finance regulations, which has made it a lot easier for people like the Kochs to buy elections.

But Scalia and Thomas have been involved in more than just rulings that make it easier for the Kochs to win election.

After all, they once cast two of the only nine votes to matter in the 2000 Presidential election.

They’ve not only issued rulings that make it easier for conservatives to win elections, they’ve decided an election. And one of the most obvious explanations for why Thomas and Scalia have attended at least one of these secret shindigs but not Sam Alito or John Roberts would be if they attended before the latter two were SCOTUS Justices. You know, back before Thomas and Scalia selected a President.

So did Thomas and Scalia attend a meeting strategizing how to win elections before the decided one?

And then there’s the other question: whether Ginni Thomas, the founder of an organization that bridges mainstream conservatives with the TeaBagger movement, attended the gathering.

The invitation from this year’s shindig shows that most attendees bring their spouses. So if Thomas followed the norm, then Ginni would have attended with him. Which would put Ginni Thomas, now a big player in the TeaBagger movement, at an event hosted by the guys who are bankrolling the TeaBagger movement.

The Koch brothers would already be leading candidates to be funding Liberty Central. The Koch brothers would already be leading candidates to be the source of the $500,000 or $50,000 donations from undisclosed individuals to Liberty Central. The Koch brothers–and their funding of TeaBagger activities–have been central in opposing the health care reform that Liberty Central has called unconstitutional.

But it would be very neat if the Koch brothers recruited Ginni Thomas to front this group at their secret cabal meeting, wouldn’t it?

Clarence Thomas’ Revenge

Rosalind linked to this LAT article describing Clarence Thomas’ pro-abuse views.

According to Supreme Court Justice Clarence Thomas, a prisoner who was slammed to a concrete floor and punched and kicked by a guard after asking for a grievance form — but suffered neither serious nor permanent harm — has no claim that his constitutional rights were violated.

Thomas objected when the high court, in a little-noted recent opinion, said this unprovoked and malicious assault by a North Carolina prison guard amounted to cruel and unusual punishment.

[snip]

According to Thomas, this harsh treatment did not qualify as cruel and unusual punishment. “Judges — not jailers — impose punishment,” he wrote.

[Thomas and Scalia] explained that the word “punishment” as it was used in the English Bill of Rights in 1689 referred to judges imposing punishment for a crime. Prison guards do not impose “punishment” even if they mete out cruelty, they said.

The entire article is worth reading not just because it reveals where Thomas will weigh in if torture ever gets to SCOTUS.

But it highlights a point I noted (as did Citizen92): the degree to which Clarence Thomas’ former and future clerks implemented our country’s torture regime.

Page 25 to 27 (PDF page 31 to 33) of the OPR Report includes a section on the background of the lawyers who had significant hand in writing the torture memos:

John Yoo. Clerk, Clarence Thomas,1994 to 1995

Patrick Philbin, Clerk, Clarence Thomas, 1993 to 1994

Jennifer Koester, Clerk, Clarence Thomas, 2004 to 2005

Steven Bradbury, Clerk, Clarence Thomas, 1992 to 1993

Of the list included on those pages, just Jack Goldsmith and Daniel Levin did not clerk for Thomas. And of course, the most egregious work came from lawyers–Yoo, Koester, and Bradbury–who were Thomas clerks.

This is one of the dangers of appointing a partisan hack like Thomas rather than radical, but intelligent, lawyers like Alito and Scalia. Because the partisan hack is going to launch a whole generation of lawyers (see also Citizen92’s focus on James Ho, who also went through OLC) who treat law like one big game of sophistry and human beings like objects into really prominent positions.

And I would bet that Clarence Thomas enjoys the little part he has had in shredding our country’s Constitution.