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The Supreme Court Has Already Agreed that the Mystery Appellant Caused a “Direct Effect” in the United States

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I’d like to make a minor — but I think important — point about the DC Circuit opinion in the Mystery Appellant challenge to what is believed to be a Robert Mueller subpoena. Assuming that this is a challenge to a Special Counsel subpoena, then the Supreme Court has already agreed with Mueller — in dissolving a stay of financial penalties for blowing off a subpoena — that some company owned by a foreign country took an action outside the US that had an effect inside the US, in an investigation into what happened during an election.

This post will assume that this is a Mueller subpoena. Some of the evidence backing that assumption includes:

  • DC District Chief Judge Beryl Howell issued the original order; she presides over Mueller’s grand jury
  • A lawyer asked for Mueller’s latest sealed filing on the day a response from the Mystery Appellant was due
  • Greg Katsas recused from consideration of this case; he had said he would recuse on Mueller related issues
  • The secrecy for the hearing before the DC Circuit, and arguably the review process for this challenge, were exceptional
  • Mueller lawyers Michael Dreeben and Zainab Ahmad were seen returning to his office after the DC Circuit hearing

Judges David Tatel, Thomas Griffith, and Stephen Williams issued their order on December 18. The Mystery Appellant appealed to the Supreme Court, and over Christmas John Roberts took briefing on that appeal. Last week the Supreme Court declined to uphold the stay, effectively agreeing with the Circuit’s decision.

And that’s important, because a key part of the now-public (though still partly sealed) DC Circuit opinion explains how the presumed Mueller request overcomes the sovereign immunity of the company in question. The request must involve — among other things — an exception to sovereign immunity.

Taking section 1604 ‘s grant of immunity as a given, the government must check three boxes for the contempt order to stand. First, there must be a valid grant of subject-matter jurisdiction. Second, one of the Act’s exceptions to immunity must apply. And third, the contempt sanctions must be a permissible remedy. According to the district court, the government satisfies all three. We agree.

Mueller claimed that this qualified as an exception because the request involves an “act outside the territory of the United States in connection with a commercial activity of the foreign state elsewhere [when] that act causes a direct effect in the United States.”

Moving to those exceptions, in its ex parte filing the government steers us to the third clause of section 1605(a)(2). That provision denies immunity in an “action … based … upon an act outside the territory of the United States in connection with a commercial activity of the foreign state elsewhere [when] that act causes a direct effect in the United States.” Ordinarily, the Corporation would bear the burden to establish that the exception does not apply. See EIG Energy FundXIV, L.P. v. Petroleo Brasileiro, S.A., 894 F.3d 339, 344- 45 (D.C. Cir. 2018) (“[T]he foreign-state defendant bears the burden of establishing the affirmative defense of immunity,” including “‘proving that the plaintiff’s allegations do not bring its case within a statutory exception to immunity.”‘ (quoting Phoenix Consulting Inc. v. Republic of Angola, 216 F .3d 36, 40 (D.C. Cir. 2000))).

And because Mueller relied on an ex parte filing to make that case, all the judges involved — Howell, Tatel, Griffith, Williams, Roberts, and whoever else at SCOTUS reviewed this — relied on the argument that Mueller’s lawyers laid out about the request.

Here, however, the government relies primarily on ex parte evidence unavailable to the Corporation. We have repeatedly approved the use of such information when “necessary to ensure the secrecy of ongoing grand jury proceedings,” In re Sealed Case No. 98-3077, 151 F.3d 1059, 1075 (D.C. Cir. 1998), and we do so again here. But where the government uses ex parte evidence, we think the burden falls on the government to establish that the exception applies, and we will conduct a searching inquiry of the government’s evidence and legal theories as a substitute for the adversarial process.

In a sealed discussion of Mueller’s ex parte filing, the DC Circuit finds a “reasonable probability” that that section covers this subpoena. It goes further and states that it doesn’t have to decide what the gravamen of the subpoena is, which suggests that something about this request makes it very clear that the company both possess the records and that they are relevant to Mueller’s investigation.

The “gravamen” of a subpoena may be the mere fact that an entity possesses the documents in question. Alternatively, the “gravamen” may be related to the content of the records and why they may be relevant to the government’s investigation. Indeed, the correct approach may well vary with the facts of a given case. Here, however, we need not resolve that issue [redacted]

There’s some other redacted discussion that dismisses a claim made by the corporation that will be interesting for the history books. But the DC Circuit is clear that the request — as laid out in an ex parte filing presumably written by Mueller’s lawyers — clears the subject matter question.

None of this analysis tells us enough about the company for us to guess what foreign company it is. The WaPo says it is a financial institution. I happen to think that Qatar or the Emirates’ investment authority are the most likely candidates but that’s just an educated guess.

Still, if this is indeed a Mueller subpoena, given the topic of Mueller’s inquiry and his fairly clear discipline at staying within the scope of it, that nevertheless is a signifiant revelation. That’s because Mueller is investigating events relating to an election. And most acts by a company owned by a foreign country that cause an effect in this country — if they have some relationship with that election — would be illegal. It could be the payoff for a bribe. It could be a more direct expenditure associated with the campaign. It could be a payment associated with activities that occurred during the campaign.

Maybe it’s something far more obscure. But any of the obvious applications here would all implicate a foreign country influencing — directly or indirectly — the election. And SCOTUS has already reviewed that Mueller argument, and found it reasonable.

That doesn’t mean SCOTUS has reviewed the evidence the company has, it doesn’t mean the company will turn over the evidence (though it would already incurred something like $300,000 to avoid compliance), it doesn’t mean the evidence proves whatever crime Mueller has cited in demanding it.

But SCOTUS has, at a minimum, found Mueller’s argument that such evidence would be relevant to his criminal investigation reasonable.

Update: Added language to make what happened — SCOTUS dissolved the stay — technically correct.

Update: And SCOTUS is now debating whether to allow the Mystery Appellant to file cert under seal or not.

As I disclosed last July, I provided information to the FBI on issues related to the Mueller investigation, so I’m going to include disclosure statements on Mueller investigation posts from here on out. I will include the disclosure whether or not the stuff I shared with the FBI pertains to the subject of the post. 

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Trump’s “Official Acts” to Pay Off a Russian Bribe Should Make Impeachment a Legal Issue, Not Just a Political One

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The pearl clutchers screamed about Congresswoman Rashida Tlaib saying that we need to impeach the motherfucker, Donald Trump, demeaning the presidency.* While I’m glad that she has refused to back down from her beliefs in the face of the attacks, I think her more substantial argument about impeachment deserves further attention (which I hope to return to in a later post). More important, I think that the response to Tlaib’s comments has resulted in members of both parties retreating to a debate about Trump’s impeachment using the old formulation that it’s a political, not a legal question.

It is true that impeachment is political question insofar as, so long as there’s the political will, a president can be impeached for anything, even lying about a consensual blowjob immaterial to an investigation into financial scandal. But impeachment is also a legal question. Indeed, the Constitution mandates that the President be removed from office if he is impeached and convicted not just for the unenumerated grab bag of “high crimes and misdemeanors” — where Congress exercises the political will to decide whether a blowjob merits impeachment — but also the enumerated crimes of treason and bribery.

The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.

In spite of Emmet Sullivan’s question — as one of the only people who has read sealed documents laying out what Trump’s transition team did — about whether Mueller’s investigators considered charging Mike Flynn with treason, there’s no chance that Trump will be named in a treason charge.

But there is very good chance he will be named in a conspiracy involving a quid pro quo trading dirt and real estate deals for sanctions relief and other policy considerations.

The other day, I realized something ironic: in precisely the same period Trump was entering in an apparent quid pro quo with Russians, John Roberts was authoring a unanimous Supreme Court decision that clarified the limits of quid pro quo bribery.

And while the Supreme Court believed that Governor Bob McDonnell had not accepted bribes for setting up meetings in exchange for gifts, the language Roberts wrote in the weeks after Trump’s son told some Russians they would revisit Magnitsky sanctions if his father won does not so narrow the definition of bribery as to make Trump’s actions legally excusable.

Roberts described an official act this way:

In sum, an “official act” is a decision or action on a “question, matter, cause, suit, proceeding or controversy.” The “question, matter, cause, suit, proceeding or controversy” must involve a formal exercise of governmental power that is similar in nature to a lawsuit before a court, a determination before an agency, or a hearing before a committee. It must also be something specific and focused that is “pending” or “may by law be brought” before a public official. To qualify as an “official act,” the public official must make a decision or take an action on that “question, matter, cause, suit, proceeding or controversy,” or agree to do so.

Notably, the bribed public official doesn’t actually have to follow through on the official act he agreed to take, so it doesn’t help Trump that Congress has repeatedly prevented him from overturning sanctions on Russia.

Under this Court’s precedents, a public official is not required to actually make a decision or take an action on a “question, matter, cause, suit, proceeding or controversy”; it is enough that the official agree to do so.

And there are a number of data points in the public record that suggest Trump did believe he had made a deal with the Russians and that Russia had what it believed was a commitment from Trump. For example, four of the people who attended the June 9 meeting testified (most under oath) that Don Jr said his father would revisit sanctions relief if he got elected.

Natalia Veselnitskaya said Don Jr said they’d revisit the topic.

Mr. Trump, Jr. politely wound up the meeting with meaningless phrases about somewhat as follows: can do nothing about it, “if’ or “when” we come to power, we may return to this strange and confusing story.

Ike Kaveladze said that Don Jr said they might revisit the issue if his father won.

There was no request, but as I said, it was a suggestion that if Trump campaign wins, they might get back to the Magnitsky Act topic in the future.

Rinat Akhmetshin said that Don Jr said they would revisit Magnitsky when they won.

A. I don’t remember exact words which were said, but I remember at the end, Donald, Jr., said, you know, “Come back see us again when we win.” Not “if we win,” but “when we win.” And I kind of thought to myself like, “Yeah, right.” But it happened, so — but that’s something, see, he’s very kind of positive about, “When we win, come back and see us again.” Something to that effect, I guess.

Anatoli Samochornov, Veselnitskaya’s translator, who is the most independent witness and the only one who didn’t compare his story with others, said that Don Jr said they would revisit the issue if Trump won.

A. Like I described, I remember, not verbatim, the closing that Mr. Donald Trump, Jr., provided, but that’s all that I recall being said from the other side.

MR. PRIVOR: That closing being that Donald Trump, Jr., suggested —

MR. SAMOCHORNOV: If or when yes, and I do not remember if or when, but if or when my father becomes President, we will revisit this issue.

And Ike Kaveladze, in the call back to his boss to report on the meeting that witnesses observed, was happy with the outcome of the meeting.

It’s not just the Russians who seem to have acted on the meeting. Michael Cohen’s allocution seems to suggest that the meeting tied directly to the negotiations over a Trump Tower, because he took steps to travel to Russian on the day of the meeting.

From on or about June 9 to June 14, 2016, Individual 2 sent numerous messages to COHEN about the travel, including forms for COHEN to complete. However, on or about June 14 , 2016, COHEN met Individual 2 in the lobby of the Company’s headquarters to inform Individual 2 he would not be traveling at that time.

Remember: a “senior campaign official” was involved in discussions about trips to Russia. And had the President’s personal lawyer actually taken this trip to St. Petersburg, the plan was to meet Vladimir Putin (who did attend the forum that year).

While the dates provided in Cohen’s allocution also suggest the disclosure that Russia hacked the DNC halted Cohen’s plans “at that time,” we know that the plans did resume after that canceled trip into July.

The Russians certainly believed they had an agreement. They put in some effort to meet again after Trump won. While finding an appropriate communication channel failed for the Agalarovs, Flynn and Jared Kushner moved to establish a back channel via Sergey Kislyak. When Trump met with Preet Bharara and reportedly agreed to keep him on, Veselnitskaya panicked, and suggested Trump planned to keep him on so he could take him out.

In its indictment of Veselnitskaya, DOJ just established that she was actually working as part of the Russian government when she claimed to have fought to get an MLAT request in her Prevezon case. And Veselnitskaya believed that after Trump won the election, he would take out the prosecutor whom she was facing in court. Ultimately, Trump did take out Preet, firing all his US Attorneys in an effort to do so.

And details from Mike Flynn’s allocution provide one important piece of evidence that Russians believed they had received a commitment from Trump.

After Obama imposed sanctions on Russia partly in retaliation for the election year operation, Trump’s team panicked, both because they wanted to improve relations with Russia, but also because Russia’s role in his victory delegitimized the victory. That is, even those unlikely to be unaware of any quid pro quo recognized that the public accounting of Russia’s role in helping defeat Hillary would make it all the more difficult to deal with Russia.

Obama is doing three things politically:

  • discrediting Trump’s victory by saying it was due to Russian interference
  • lure trump into trap of saying something today that casts doubt on report on Russia’s culpability and then next week release report that catches Russia red handed
  • box trump in diplomatically with Russia. If there is a tit-for-tat escalation trump will have difficulty improving relations with Russia which has just thrown USA election to him.

Trump’s response, however, was to reach out to Russia and assure them they didn’t need to worry about Obama’s new policy. In response, the Russians made it very clear that Putin had decided not to respond based on the assurances that Flynn gave Kislyak.

On or about December 30, 2016, Russian President Vladimir Putin released a statement indicating that Russia would not take retaliatory measures in response to the U.S. Sanctions at that time.

On or about December 31, 2016, the Russian Ambassador called FLYNN and informed him that Russia had chosen not to retaliate in response to FL YNN’s request.

Mueller, of course, has the full transcript of what Flynn said to Kislyak that successfully placated Putin. It is highly likely the transcript provides explicit evidence of an official act to pay off his side of the deal, sanctions relief.

All of which is to say that Mueller may well be finalizing a conspiracy indictment of Don Jr and Trump Org laying out a quid pro quo in which Trump agreed to provide sanctions relief (and some other stuff) in exchange for Russia’s help winning the election.

That Mueller might be able to show all this is bribery may not affect Republican willingness to take the action laid out in the Constitution, to convict Trump in an impeachment inquiry. But given that the Constitution specifically envisions impeaching a President who has accepted a bribe, commentators should stop treating impeachment exclusively as a political issue.

Update: I posted this before I had read this analysis from Jack Goldsmith raising concerns about investigating the President for foreign policy decisions. While I think Goldsmith raises key points, he focuses on actions Trump took as President. But that’s one reason I think the transition activities are so important. If I’m right that the calls to Kislyak amount to an official act, then Trump took it to undermine the official policy of the government, not set it as President. Further, The Trump team had been asked — and at least one person had agreed — to not undermine Obama’s policies during the transition. There were several efforts to hide that they were doing so: the indications they couldn’t reengage on Magnitsky sanctions using the same channels as they used during the election, the request for a back channel, and the meeting with Mohammed bin Zayed al-Nahyan that Susan Rice discovered by unmasking the identities of those who met with him.

The actions Trump took that led to Flynn and Comey’s firings were part of an effort to hide these clandestine efforts during the transition. Yes, they were conducted while he was President. But they were conducted to cover up actions taken before he became President. This is why I keep harping on the remarkable lack of curiosity about why Trump really fired Flynn. The public story Trump is telling is assuredly false. The real reason almost certainly ties back to these transition period actions.

As I disclosed in July, I provided information to the FBI on issues related to the Mueller investigation, so I’m going to include disclosure statements on Mueller investigation posts from here on out. I will include the disclosure whether or not the stuff I shared with the FBI pertains to the subject of the post. 

*Full disclosure: I donated to Tlaib’s campaign.

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Kennedy

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Anthony Kennedy just announced his retirement, giving Trump a second SCOTUS appointment.

Things just got serious. That, after SCOTUS just gutted public sector unions and upheld Trump’s anti-Muslim bigotry.

Trump has said he’ll pick someone from his existing list, which includes lots of horrible people, as well as Mike Lee, who at least is good on civil liberties albeit horrible on cultural issues. Both bmaz and I think it’ll be Brett Kavanaugh, who’s very smart and has been groomed for this for a long time.

While this likely will end up absolutely horribly, here are several reasons it might end up less than horribly:

  • At the very least, this will focus this fall’s election, and SCOTUS just did a lot of things that will be horrible for Democratic voters, which should clarify issues
  • Any two GOP Senators (one, depending on what happens with McCain) can make demands. That means that a Corker-Flake-McCain (if he’s voting) axis could heavily influence the pick, if they chose to use that as their legacy in the Senate.

bmaz, on the other hand, is a realist. He figures this will put a third Alito-type on SCOTUS, which will doom us for as long as those young men remain around (even assuming RBG lives forever).

Finally, one more point. While Kennedy has been the swing vote for a decade, in fact this year John Roberts was often in that role. So as awful as he is, he may be more willing to work with Democrats to retain credibility at SCOTUS.

I can think of more possibilities, but for now, I’ll just post this as a thread.

 

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Pope Francis Nails the Rhetoric of Addressing Congress

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Pope Francis just finished his address to Congress. It was a masterful speech from a political standpoint, designed to hold a mirror up to America and provide a moral lesson.

He started with an appeal the most conservative in America would applaud, to the foundation of Judeo-Christian law (CSPAN panned to the Moses relief in the chamber as he spoke).

Yours is a work which makes me reflect in two ways on the figure of Moses. On the one hand, the patriarch and lawgiver of the people of Israel symbolizes the need of peoples to keep alive their sense of unity by means of just legislation. On the other, the figure of Moses leads us directly to God and thus to the transcendent dignity of the human being. Moses provides us with a good synthesis of your work: you are asked to protect, by means of the law, the image and likeness fashioned by God on every human face.

He then couched his lessons in a tribute to four Americans — two uncontroversial, Abraham Lincoln and Martin Luther King Jr — and two more radical, Dorothy Day and Thomas Merton (but probably obscure to those who would be most offended).

Several times he nodded towards controversial issues, as when he addressed making peace in terms that might relate to Cuba (controversial but still accepted by most who aren’t Cuban-American) or might relate to Iran.

I would like to recognize the efforts made in recent months to help overcome historic differences linked to painful episodes of the past. It is my duty to build bridges and to help all men and women, in any way possible, to do the same. When countries which have been at odds resume the path of dialogue – a dialogue which may have been interrupted for the most legitimate of reasons – new opportunities open up for all. This has required, and requires, courage and daring, which is not the same as irresponsibility. A good political leader is one who, with the interests of all in mind, seizes the moment in a spirit of openness and pragmatism. A good political leader always opts to initiate processes rather than possessing spaces (cf. Evangelii Gaudium, 222-223).

Similarly, he spoke of the threats to the family in such a way that might include gay marriage, but he then focused on the inability of young people to form new families.

I will end my visit to your country in Philadelphia, where I will take part in the World Meeting of Families. It is my wish that throughout my visit the family should be a recurrent theme. How essential the family has been to the building of this country! And how worthy it remains of our support and encouragement! Yet I cannot hide my concern for the family, which is threatened, perhaps as never before, from within and without. Fundamental relationships are being called into question, as is the very basis of marriage and the family. I can only reiterate the importance and, above all, the richness and the beauty of family life.

In particular, I would like to call attention to those family members who are the most vulnerable, the young. For many of them, a future filled with countless possibilities beckons, yet so many others seem disoriented and aimless, trapped in a hopeless maze of violence, abuse and despair. Their problems are our problems. We cannot avoid them. We need to face them together, to talk about them and to seek effective solutions rather than getting bogged down in discussions. At the risk of oversimplifying, we might say that we live in a culture which pressures young people not to start a family, because they lack possibilities for the future. Yet this same culture presents others with so many options that they too are dissuaded from starting a family.

By far the shrewdest rhetorical move the Pope made — standing just feet from the Catholic swing vote on the Supreme Court, Anthony Kennedy, as well as John Roberts (Catholic Justices Sam Alito, Clarence Thomas, and Antonin Scalia, all blew off the speech given by the leader of their faith), with the Catholic Vice President and Speaker sitting just behind — calling to “defend life at every stage of its development.” — This brought one of the biggest standing ovations of the speech (though Justices never applaud at these things and did not here), at which point the Pope pivoted immediately to ending the death penalty.

The Golden Rule also reminds us of our responsibility to protect and defend human life at every stage of its development.

This conviction has led me, from the beginning of my ministry, to advocate at different levels for the global abolition of the death penalty. I am convinced that this way is the best, since every life is sacred, every human person is endowed with an inalienable dignity, and society can only benefit from the rehabilitation of those convicted of crimes. Recently my brother bishops here in the United States renewed their call for the abolition of the death penalty. Not only do I support them, but I also offer encouragement to all those who are convinced that a just and necessary punishment must never exclude the dimension of hope and the goal of rehabilitation.

I hope the Pope’s general pro life call, emphasizing the death penalty rather than abortion, will get people who claim to be pro-life to consider all that that entails.

That led — past his expected appeal to stop shitting on Eden and start taking care of the poor — to what was probably the worst received line in the speech, a call to stop trafficking in arms.

Being at the service of dialogue and peace also means being truly determined to minimize and, in the long term, to end the many armed conflicts throughout our world. Here we have to ask ourselves: Why are deadly weapons being sold to those who plan to inflict untold suffering on individuals and society? Sadly, the answer, as we all know, is simply for money: money that is drenched in blood, often innocent blood. In the face of this shameful and culpable silence, it is our duty to confront the problem and to stop the arms trade.

The Pope went into a Chamber where large numbers are funded by arms merchants and told them they were relying on “money that is drenched in blood.” Very few applauded that line.

Still, the message was about the duty of legislators to serve the common good and on several issues, the Pope avoided directed confrontation, preferring an oblique message that might be interpreted differently by people of all political stripes. Amid the rancor of Congressional debates — about Planned Parenthood, about defunding government (and with it, harming the poor the most), about Iran — it was a remarkably astute message.

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Sonia Sotomayor, John Roberts, and the Riley Decision

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

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

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

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

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

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

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

[snip]

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

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

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

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

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

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

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

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

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

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

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

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

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

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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.

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Unanimous: Cops Need a Warrant to Access Your Phone Data

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

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

This passage is getting widely cited:

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

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

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

[snip]

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

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

[snip]

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

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Former Presiding Judge, John Bates, Makes Compelling Case to Eliminate FISA Court

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As you read John Bates’ “comments” about the NSA Review Group’s recommendations, it’s worth keeping two things in mind about him:

  • He has a history of dismissing legally important cases out of caution — arguably excess caution — over getting involved in matters reserved for the political branches, a caution he did not exercise here.
  • In August 2011, after Bates asked NSA to tell him how many entirely domestic communications were being caught via upstream collection (and after Bates had told NSA domestic collection of US person data was only illegal if they acknowledged it), they did not provide the number. And he didn’t make them. He did however, in the same exchange, rubber stamp NSA’s authority to conduct back door searches into US person communications.

In other words, Bates has long been overly solicitous of Executive power, and contrary to some claims, his work on the FISC actually reinforces, rather than refutes, claims that the Court is a rubber stamp.

Perhaps it’s not surprising, then, that his comments actually make a fairly compelling — albeit unintentional — case for eliminating the FISC (at least for all its expanded uses since 2001) altogether.

Don’t get me wrong. I’m sympathetic to some of Bates’ stated concerns. The concerns about workload (which Bates raises in his first and second bullets, but relegates to his last paragraphs) are real, and have been recognized by a number of people in the FISC debate. Bates points to some real constitutional issues in constructing an advocate for the court (which, again, have been pointed out, with potential solutions, by others).

But ultimately Bates’ comments (which may also reflect the concerns of Chief Justice John Roberts, whose authority he invokes in commenting on FISC matters) object to anything that might make FISC more of a … court.

Consider his argument against a Special Advocate. He worries a special advocate would harm what he (the same guy who couldn’t get the government to divulge how many Americans are getting swept up in domestic upstream collection) claims is candor.

Perhaps most troubling, however, is our concern that providing an institutional opponent to FISA applications would alter the process in other ways that would be detrimnetal to the FISC’s timely receipt of full and accurate information. As noted above, the current process benefits from the government’s taking on — and generally abiding by — a heightened duty of candor to the Court. Providing for an adversarial process in run-of-the-mill, fact-driven cases may erode this norm of governmental behavior, thereby impeding the Court’s receipt of relevant facts. (As noted above, the advocate would rarely, if ever, serve as a separate source of factual information.) Instead, intelligence agencies may become reluctant to voluntarily provide to the Court highly sensitive information, or information detrimental to a case, because doing so would also disclose that information to a permanent bureaucratic adversary.

Even setting aside the number of times I’ve been able to find factual problems with claims made in the few FISC filings so far released (suggesting advocates could provide factual and technical details the government doesn’t want to), this is a tacit admission that the FISC is not considered a bureaucratic adversary by the government.

This is particularly troubling given that, as Bates portrays the process, the “FISC may request or receive information from the applicant informally through the legal staff” (which according to Judge Walton’s portrayal of the process, means via the phone). The only paper trail of the process, then, are (again relying in part on Walton) the written analysis of the FISC’s staff attorneys. Which would mean an advocate would require “broad access” to these “draft decisions and memoranda from legal staff,” would would violate “ethical canons and separation-of-powers principles,” in turn “infring[ing] on the independence of the judges’ decisionmaking.”

One reason Bates objects to a Special Advocate, then, is that the Government would have to write all its requests down, which might affect their candor.

If that isn’t already troubling, Bates’ observation that “even relatively routine national security investigations involve changing facts” raises additional concerns. Bates describes FISC judges making decisions on a sometimes undocumented set of moving facts, facts which the targets of such surveillance have never been permitted to see, much less challenge, in court.

Then there’s Bates’ stated worries about the problems an advocate would present for the FISA Court of Review (and again, some of this may reflect John Roberts’ concern, as SCOTUS is the ultimate court of appeal). Some of this, again, reflects resource concerns. But even those resource concerns — such as the possibility the FISCR would have “to hire its own staff” reveals that the FISCR relies on the same staffers who drive FISC decisions in the first place. It is not, as it turns out, an independent court of its own.

Which makes the Constitutional concerns raised by the wacky decisions of the FISC, starting with its secret redefinition of “relevance” (without even benefit of independent dictionary definitions), all the more urgent. There is no standing to challenge these issues outside of the courts; with the FISC structure, there is apparently no fully independent court of appeal. And the Chief Justice wants to keep it that way.

Which means part of what Bates is defending is the authority for a bunch of District Court Judges to serve as Appellate Judges for some of the most Constitutionally novel issues raised by national security.

Yet Bates also seems to be defending the Court’s ability to remain ignorant about some things the Executive does. He rejects any proposal to serve as an oversight check on the Executive (this is another concern I have some sympathy for). But he does so in a document including this disclosure raised in objection to requiring warrants to conduct back door searches. (Snoopdido noted this passage last night.)

Decisions about querying Section 702 information are now made within the Executive Branch. As a result, the Courts do not know how often the government performs queries of data previously acquired under Section 702 in order to retrieve information about a particular U.S. person. It seems likely to us, however, that the practice would be common for U.S. persons suspected of activities of foreign intelligence interest, e.g., engaging in international terrorism, so that the burden on the FISC of entertaining this new kind of application could be substantial.

Remember: Bates is the guy who first approved NSA and CIA’s use of these back door searches (relying in part on the prior 3-year history of FBI’s use of them). But he has apparently never gotten enough “candor” from the Executive — either before or after he approved this — to know how and how often the Executive is using these searches!

Then he goes on to explain that the Executive might need to use back door searches to get the content of Americans they can’t otherwise target under FISA.

For a variety of reasons, a U.S. person suspected of such activity may not otherwise be a FISA target. For example, there may be probable cause to believe that a U.S. person is engaged in international terrorism, but intelligence agencies may not have the ability to implement current forms of FISA collection against that person because of the person’s location or lack of information about particular facilities.

Granted, what Bates is describing is the use of reverse targeting to get around technical difficulties, not legal ones (though I wonder how he’s sure about the legal case if the government has never made it).

But it is reverse targeting, the use of a back door search to get to the US person content, without a warrant, via collection on another target. This is forbidden by the law. Yet he describes it as one reason why the FISC shouldn’t get involved in reviewing warrants for this kind of search, which (as he describes it) violates the law.

Against the background of admitting that the FISC doesn’t always require the government to write down its requests and that it doesn’t want to approve warrants for activity that by his description violates the statute because the government should be permitted to continue violating the statute, Bates then objects to the recommendations to eliminate bulk collection and provide more review of 215 and NSLs, in part because of the burdens they’d pose for the Court. Most curiously, Bates says that if reforms eliminated NSL gag orders, the government would begin to use Section 215.

Those changes would like result in the government’s decreasing its reliance on NSLs for records subject to such a disclosure requirement and instead bringing to the FISC more applications under Section [215] for production of such records, in order to avoid disclosure of such information to private parties.

If the government could still get bulk Section 215 orders, I agree, they might well use those instead.

But Jim Comey — to the extent he can be believed in comments that were clearly misleading — said he’d end up using grand jury subpoenas instead. So a guy with years of involvement in prosecuting terrorism cases at least claims that he not only could — but would prefer to — use grand jury subpoenas for this information over the FISC.

Which would alleviate the need to routinely eliminate gags, because review in any criminal proceedings would provide the kind of transparency and review necessary for such things (this is a point Peter Swire made in yesterday’s hearing).

The reason we need a FISC is because the government — often through inadequate notice to defendants — has succeeded in avoiding the kind of review courts normally bring. But John Bates reveals a number of ways in which the court that is supposed to be providing that review has failed to do so. And Jim Comey, at least, thinks some of this could move back to real courts.

So why not? Why not move this, with all the gags grand jury subpoenas get and the national security experience judges have acquired over the last decade and all the normal constitutionally required review process, back to normal Title III Courts?

I admit it. Bates makes an excellent case for eliminating the FISC case, at least for all the exotic bulk programs the government has been inventing in secret.

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GOP Not Anxious to End John Roberts’ Unilateral Reign Appointing FISA Judges

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FWIW, Roger “Broccoli” Vinson aside, John Roberts has been appointing some solidly conservative, but nevertheless not lockstep Republicans to the FISA Court in recent years. But especially given the degree to which the FISC is now playing what former FISC judge James Robertson called a policy role, it is all the more inappropriate to have the Chief Justice, of whatever party, unilaterally pick FISC judges.

And some members of Congress — Adam Schiff in the House and Richard Blumenthal in the Senate — are trying to change that.

Curiously, however, while Republicans are happy to cosponsor legislation to force FISC to publish their opinions, Schiff, at least, has had no success finding a Republican cosponsor to support moves to take the FISC appointments out of John Roberts’ hands.

Schiff’s having a tougher time finding GOP co-sponsors for a second measure that would require Presidential nomination and Senate confirmation of FISA judges. Currently they are appointed by U.S. Supreme Court Chief Justice John Roberts.

I guess whatever claims GOP Representatives make about wanting to impose some controls on this dragnet take a back seat to maximizing party influence?

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The Marriage Equality Decisions

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Picture-1The moment of truth has finally come on the long and tortured path through the Supreme Court for the marriage equality movement. Without further adieu, the Defense Of Marriage Act has been struck down as unconstitutional under Equal Protection grounds in a 5-4 opinion authored by Anthony Kennedy. A lack of standing has been found by the court in the California Hollingsworth v. Perry Prop 8 case, thus meaning the case will revert to the Ninth Circuit decision.

Frankly, everybody in the universe is going to have instantaneous analysis and opinion on the nature and import of these two decisions. I will likely be along with the same on particular aspects later, but for now I want to get the decisions and opinions up here so that one and all can read and discuss them. Below I will give the links to the opinions and the critical language blurbs from each.

United States v. Windsor (DOMA): Here is the opinion. As stated above, it is a 5-4 split authored by Justice Kennedy, joined by the liberal bloc of Ginsburg, Breyer, Sotomayor and Kagan. Chief Justice Roberts, Scalia, Thomas and Alito dissent in separate dissents written by Roberts and Scalia.

The opinion is very broad in range and focuses on Section 3 of DOMA, which will effectively obliterate the law. The key holding comes at the end of Kennedy’s majority opinion:

DOMA singles out a class of persons deemed by a State entitled to recognition and protection to enhance their own liberty. It imposes a disability on the class by refusing to acknowledge a status the State finds to be dignified and proper. DOMA in- structs all federal officials, and indeed all persons with whom same-sex couples interact, including their own children, that their marriage is less worthy than the mar- riages of others. The federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and to injure those whom the State, by its marriage laws, sought to protect in personhood and dignity. By seeking to displace this protection and treating those persons as living in marriages less respected than others, the federal statute is in violation of the Fifth Amendment.

Hollingsworth v. Perry (Prop 8): Here is the opinion. As stated above, the court found a lack of standing by the appellants Hollingsworth (Prop 8 Proponents). ROBERTS, C. J., delivered the opinion of the Court, in which SCALIA, GINSBURG, BREYER, and KAGAN, JJ., joined. KENNEDY, J., filed a dissenting opinion, in which THOMAS, ALITO, and SOTOMAYOR, JJ., joined. So, just to be clear here: The liberals are the reason the court could not issue a decision granting ALL Americans the right to marriage equality that citizens in California, and the other few states who have state law marriage equality, will enjoy.

Anthony Kennedy, by his crystal clear decision and language he penned in the Windsor DOMA decision, and his willingness to find standing and rule on the merits in the Prop 8 case, was ready to make it happen. And all the liberal justices, save for Sonia Sotomayor, prevented it.

The court has remanded Hollingsworth back to the 9th Circuit with instructions to enter a similar ruling based on lack of standing/jurisdiction. That means that the broad and sweeping decision entered by Vaughn Walker in the district court trial will become law in California.

Now, to again be clear, I expect there will be litigation attempts by the Equality Haters to try to restrict Walker’s decision to the two plaintiff couples and/or the two respective counties at issue in the original Perry complaint. I do not believe that will bear any fruit and fully expect full marriage equality to exist across all of California, but it may not be as immediate as it should. We shall see.

In closing, a very good day for marriage equality and LGBT rights. The DOMA decision is broad and provides for heightened scrutiny in evaluating marriage and sexual identity issues; that portends well for future rights litigation. And, of course, DOMA is dead. Also heartwarming that all of California’s citizens will have their rights protected; it is, however, sad that this will not extend to all Americans.

[As always on these Prop 8 posts, the absolutely incredible graphic, perfect for the significance and emotion of the Perry Prop 8 case, and the decision to grant marriage equality to all citizens without bias or discrimination, is by Mirko Ilić. Please visit Mirko and check out his stock of work.]

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