When Trump appealedAmit Mehta’s ruling that he could be sued for his role in setting off an attack on January 6, Trump said he had absolute immunity from being held accountable for his role in the attack.
The DC Circuit asked DOJ what they thought about that claim.
DOJ has now responded in an amicus filing. They argued that Mehta’s opinion — which held that it is plausible that Trump incited violence at the Capitol — would not cover stuff that is part of the President’s job description.
Here, the district court concluded that plaintiffs’ complaints plausibly allege that President Trump’s speech at the rally on January 6, 2021, precipitated the ensuing attack on the Capitol—and, in particular, that the complaints plausibly allege that the former President’s speech encouraged imminent private violent action and was likely to produce such action. The United States expresses no view on that conclusion, or on the truth of the allegations in plaintiffs’ complaints. But in the United States’ view, such incitement of imminent private violence would not be within the outer perimeter of the Office of the President of the United States.
In this Court, President Trump has not challenged the district court’s conclusion—reiterated by plaintiffs on appeal—that the complaints plausibly allege that his speech instigated the attack on the Capitol. Instead, his briefs advance only a single, categorical argument: A President is always immune from any civil suits based on his “speech on matters of public concern,” Trump Br. 7—even if that speech also constitutes incitement to imminent private violence. The United States respectfully submits that the Court should reject that categorical argument.
The government specifically and repeatedly stated that they are not endorsing Mehta’s opinion. They also make it clear that they’re not stating a view about the criminal liability of anyone for January 6.
[T]he United States does not express any view regarding the potential criminal liability of any person for the events of January 6, 2021, or acts connected with those events.
But they are saying that if Mehta’s opinion holds, then what his opinion covers (and he excluded Trump’s inaction as areas in which he might be immune) would not be covered by the President’s job description.
The United States here expresses no view on the district court’s conclusion that plaintiffs have plausibly alleged that President Trump’s January 6 speech incited the subsequent attack on the Capitol. But because actual incitement would be unprotected by absolute immunity even if it came in the context of a speech on matters of public concern, this Court should reject the categorical argument President Trump pressed below and renews on appeal. Resolving the appeal on that narrow basis would allow the Court to avoid comprehensively defining the scope of the President’s immunity for speech to the public—including when and how to draw a line between a President’s speech in his presidential capacity and speech in his capacity as a candidate for office.
Of note for Scott Perry: In the midst of a passage that explains that a President’s natural incumbency position must render some reelection speech Presidential, it also notes that that’s not true for Members of Congress, because House ethics rules exclude campaign activity from a Member of Congress’ job description.
For those reasons, and because of differences in the applicable legal standards, the outer perimeter of the President’s Office differs from the scope of a Member of Congress’s employment for purposes of the Westfall Act, 28 U.S.C. § 2679. Cf. U.S. Resp. to Mo Brooks’s Westfall Act Pet. at 8-19, Swalwell v. Trump, No. 21-cv-586 (July 27, 2021), Dkt. No. 33 (explaining that Representative Brooks’s speech at the January 6 rally was outside the scope of his employment because House ethics rules and agency-law principles establish that campaign activity is not within a Representative’s employment).
So Members of Congress can’t campaign as part of their jobs. Presidents can. But they cannot — whether to stay in office or for some other reason — incite private actors to engage in violence.
Update: As I laid out here, DOJ may be laying the groundwork for proving aid and abet liability for both Trump and Rudy Giuliani in the near-murder of Michael Fanone. Those exhibits are being presented in the bench trial, before Amy Berman Jackson, of Ed Badalian.
https://www.emptywheel.net/wp-content/uploads/2021/02/Screen-Shot-2021-02-10-at-9.37.01-PM.png9741708emptywheelhttps://www.emptywheel.net/wp-content/uploads/2016/07/Logo-Web.pngemptywheel2023-03-02 13:46:172023-03-02 16:55:14DOJ Says Inciting a Riot Is Not Part of the President’s Job Description
The memo makes numerous factual errors (errors that can be easily documented thanks to a public record liberated by Jason Leopold). One Judge — Amy Berman Jackson — issued a ruling saying that the memo doesn’t do what it claimed it did (deliberate about whether Trump could be charged). She even included a timeline to show her work. Three more Circuit Judges agreed with ABJ’s opinion that DOJ misrepresented what they claimed they had done — by saying they were making a prosecutorial decision rather than a public messaging decision — in an attempt to keep the memo under wraps.
You’d think that after four judges had called out DOJ for shenanigans with this memo, anyone remotely interested in performing the function of journalism would explain why those judges found the project so suspect, and the import of that to the actual claims made in the memo. CREW spent years doing the hard work of liberating the memo to make it easy for journalists!
Instead, numerous outlets simply parroted the language of the memo that four judges had ruled to be a messaging project, thereby treating the memo as a valid exercise of legal analysis and not a performance of corruption.
I’d like to pay tribute to some of the outlets that chose to be a handmaiden to corruption rather than journalists.
I should say, while I bitched about it the day of the release, the NYT improved their story by adding the work of Charlie Savage. (early version; later version) It still treats the focus on Don McGahn as real rather than tactical and chooses to primarily quote experts explaining the problems with the memo rather than lay that out directly. But it notes (as I did) that the memo doesn’t explain something that was at the core of Mueller’s obstruction analysis — pardons. It provides actual reporting explaining that Merrick Garland’s DOJ wasn’t hiding the substance of this when they fought to keep it sealed last year, they were making a “narrower legal” argument — presumably trying to preserve the exemption it had been sealed under (the b5A deliberative privilege).
After losing in court on Friday, the Justice Department had the option to appeal the case. But the department’s senior leadership decided to release the document, according to a senior official in federal law enforcement. The leadership never opposed airing its contents, but had contested its release on narrower legal grounds, the person added.
Compare that with some of the stenography that remains untouched.
Unsurprisingly, Eric Tucker ignores the opinions from four judges who called out this memo and spends three paragraphs ignoring the evidence that this was a hash job instead describing it as a record of “how two of the department’s senior-most leaders arrived at that conclusion,” something the judicial record says it’s not. He then spends seven paragraphs rehashing part of Steven Engel and Ed O’Callaghan’s argument, never calling out factual errors and ignoring their even more problematic treatment of witness tampering. Only after that does Tucker explain that two courts (he only mentions the Circuit) deemed that it had been improperly withheld, without explaining why. Finally, in the last two paragraphs, he quotes from CREW about the substance of the memo, as if he doesn’t have the competence to assess it himself.
Unlike the AP, NPR didn’t claim, in its headline, that this memo actually did represent the decision-making process. But Ryan Lucas dedicated much of his story on the memo — paragraphs three and four, and then nine through eleven — parroting the claimed rationale of the lawyers. It describes the rebukes from the judges this way: “A district court judge and a panel of circuit court judges disagreed and ordered its release.” That leaves him free to pitch the question of Barr’s exoneration of Trump (which he calls “declin[ing] to prosecute Trump”) as a he-said, she-said affair, pitting CREW and 1,000 former prosecutors against Trump and his supporters. Lucas ends the piece by describing the current investigation into whether Trump violated the Espionage Act and obstructed an investigation by refusing to return classified documents an investigation into “storing presidential documents at his Mar-a-Lago residence.”
Of 28 paragraphs in this story, twelve report the claimed analysis of the memo unfiltered, as if it really was a predecisional declination memo, as if it really did analyze the entirety of the report, as if it was factually accurate. It dedicates four paragraphs to more recent efforts of Barr and the others involved to justify their decisions or separate themselves from Trump. Rather than describing the years-long fight featuring judges repeatedly calling out both the project of the memo itself and the means by which it was hidden, Legare described only that it, “was ordered unsealed by an Appeals Court after a FOIA request and subsequent lawsuit were filed seeking its release.” Ultimately, then, this article treats the memo as something the judges say it’s not — a view that would be reinforced by an assessment of the actual claims made against the now-public record of the investigation itself.
Reilly interrupted breaking a story about an important January 6 militia arrest the other day to cover this live and did a pretty good job on the air. But in the write-up with Dareh Gregorian, they spend paragraphs three through eight quoting at length from the memo. Along the way, they claim the memo “dismiss[ed] Mueller’s concerns about Trump’s … dangling of pardons to some witnesses,” rather than calling it out for ignoring pardons entirely. While the piece noted that Barr “announced that the Justice Department would not prosecute the case the same day the memo was sent to him” and described ABJ’s ruling that, “Barr’s mind had already been made up before the memo was written,” thereby hinting that the memo was just a messaging project, they don’t consider the import of that sequence for the analysis itself. And rather than identifying the problems of the memo themselves, they describe that, “many people strongly disagreed with the analysis laid out in the memo,” and explicitly identify CREW as ” left-leaning,” treating the actual substance as something inaccessible to them and so just a matter for ongoing political dispute.
To his credit, in the five paragraphs describing what led to the release of the memo with which Alexander Malin starts his coverage, he describes the judges concluding that, “Barr and other DOJ officials were not candid in their statements about the role the memo played in their decision to not charge Trump.” Which makes it all the more mystifying why he dedicates eleven paragraphs of his story quoting the memo at length, with no fact-checking or push-back, as if it the memo really was real analysis that led to Barr’s decision to make an announcement that he wouldn’t have charged Trump if he could have.
I get it. This memo came out amid a flood of news, especially for those of us on the DOJ beat. I get that people rushed to do quick analyses so they could go back to watching dockets in Florida, Georgia, and DC.
But what happened with this memo — four judges overriding a b5 exemption based on their assessment that DOJ misrepresented the function of the memo — is virtually unprecedented. That, by itself, should lead reporters to scrutinize the memo (or at least the process) for the kind of dishonesty the judges judged it was, rather than treating it as a transparent record of legal analysis that ABJ already showed it’s not. All the more so when, as is the case here, thousands of pages recording the underlying evidence (evidence that the authors of the memo explicitly say they’re not going to cite) are publicly available.
If you’re reporting on a document that DOJ made false claims in an attempt to keep secret, parroting what it says at length, with no discussion of why DOJ made misrepresentations to keep it secret, with no effort on your own to test whether what it says is any more true than what was said to keep it hidden, you’re doing readers a disservice.
Four judges and CREW (plus Leopold, with his earlier Mueller Report FOIA) have given you an easy way to reassess what Bill Barr did to pre-empt the results of the Mueller Report in 2019. To instead simply repeat his past claims or those whom he ordered (and worked with) to justify a pre-ordained result is not journalism.
https://www.emptywheel.net/wp-content/uploads/2019/03/Screen-Shot-2019-03-26-at-2.35.58-PM.png5531011emptywheelhttps://www.emptywheel.net/wp-content/uploads/2016/07/Logo-Web.pngemptywheel2022-08-26 08:32:522022-08-26 09:06:20How To Be a Handmaiden to Corruption, Barr Memo Press Coverage Edition
But between bouts of yelling about the Barr Memo, I’ve been laughing my ass off.
There are a number of reasons I’m laughing, some that I won’t share because I don’t want to spoil what I expect to be the punchline. But one reason I can’t stop laughing is that Robert Mueller managed to get Barr to perform — and put down in writing!! — precisely the corruption Mueller was trying to document: corrupt interference in a criminal prosecution.
I can’t imagine that Robert Mueller intended to elicit this response from Billy Barr and the lawyers who had been overseeing Mueller’s work for almost two years. But because they made the corrupt decision to override Mueller’s studied refusal to made a final conclusion about whether Trump committed obstruction (in my opinion, Mueller viewed Volume II of the Report as an impeachment referral and so did this for separation of powers reasons), they ended up putting together a shoddy memo justifying their decision.
One reason it worked out that way was because Barr and his flunkies were working quickly: a rushed effort over the course of the weekend to substantiate false claims to share with Congress.
According to Barr’s book, he remembers getting the Mueller Report around 1:30PM on March 22, 2019.
As Amy Berman Jackson laid out in a timeline accompanying her decision ordering the release of the memo, starting with a draft of the letter to Congress by Steven Engel at 8:36PM on March 22, 2019 and working through the weekend, five men including Engel (according to some emails quoted by ABJ, Barr was present as well) drafted both the letter to Congress and the declination memo in parallel.
As ABJ pointed out (this was a second basis on which she ruled that DOJ had to release the memo, one the DC Circuit said it didn’t need to consider given all the other reasons it had laid out to uphold her decision), the drafting of the letter to Congress — which she showed in the left column — actually preceded the memo — in the right column — advising Barr that because one goal under the Justice Manual is to,
promot[e] confidence on the part of the public and individual defendants that important prosecutorial decisions will be made rationally and objectively on the merits of each case,
examine the Report to determine whether prosecution would be appropriate given the evidence recounted in the Special Counsel’s Report, the underlying law, and traditional principles of federal prosecution.
The public record, then, shows Barr telling Congress about his prosecution declination before he decided to read the Report or even accept the recommendation of people who claimed to have read the Report. It was all completed over a weekend in which the people supposedly advising him were at the same time being directed by him, everyone together in the Attorney General’s conference room for the weekend.
The men finished their letter to Congress announcing that Trump had not committed any crime just after 4:30PM on Sunday and then finalized the declination memo first thing Monday morning.
These men weren’t reading the 400-page Report to figure out what it said (and there’s evidence that neither Rod Rosenstein nor Barrever read it closely). They were instead trying to figure out how to debunk a Report they had skimmed over the course of seven hours.
And that haste showed up in several places in the memo.
There’s the admission that their recommendations were largely the part of earlier discussions, including from before Barr was hired (as Barr described it, one of the lawyers, Henry Whitaker got pulled in for the first time over the weekend), and therefore only partly about the Report itself.
Over the course of the Special Counsel’s investigation, we have previously discussed these issues within the Department among ourselves, with the Deputy Attorney General, and with you since your appointment, as well as with the Special Counsel and his staff. Our conclusions are the product of those discussions, as well as our review of the Report.
They repeat that admission to explain why they dedicate fully a third of the single page discussing legal precedents to a discussion that happened on July 3, 2018, before the evidence about the Stone interactions with Russia, Paul Manafort’s ties with Konstantin Kilimnik, and Michael Cohen’s interactions with the Kremlin were fully developed.
In our prior discussions, the Special Counsel has acknowledged that “we have not uncovered reported cases that involve precisely analogous conduct.” See Special Counsel’s Office Memorandum to the 600.4 File, Preliminary Assessment of Obstruction Evidence, at 12 (July 3, 2018).
And there’s the footnote explaining that they just weren’t going to cite any facts.
Given the length and detail of the Special Counsel’s Report, we do not recount the relevant facts here. Our discussion and analysis assumes familiarity with the Report as well as much of the background surrounding the Special Counsel’s investigation.
The other reason this memo embodies corruption is that corruption lays at the core of the statute Mueller rested his obstruction analysis on: 18 USC 1512(c)(2) — the same statute DOJ is using in the January 6 prosecutions. So Barr’s 9-page memo had to find a way to claim those actions weren’t corrupt, without entirely parroting the analysis he did in the audition memo he used to get the job, and without acknowledging Barr’s three statements — made under oath during his confirmation hearing — that trading pardons for false testimony would be obstruction (the word “pardon” does not appear in this memo).
Predictably, that discussion was really shoddy. In a key passage, for example, they adopt just one possible measure of corrupt intent, personal embarrassment, something that is only mentioned four times in the Report, always in conjunction with a discussion of at least marginal criminal exposure. Then they use that as a straw man central to their dismissal of Mueller’s lengthy analysis and their decision not to actually engage with Mueller’s analysis.
The Report thus suggests that the President’s exercise of executive discretion for any improper reason, including the prevention of personal embarrassment, could constitute obstruction of justice if it impeded a pending investigation. As we have discussed with you, we do not subscribe to such a reading of the obstruction-of-justice statutes. No reported case comes close to upholding a conviction of such breadth, and a line of Supreme Court precedent, including Arthur Anderson, weighs heavily in favor of objectivity and certainty in the federal criminal law. In order to reach the conclusions in this memorandum, however, we do not believe it necessary to address this disagreement further, because in our view, Volume II of the Report does not establish offenses that would warrant prosecution, even under such a broad legal framework.
Much of their subsequent analysis, dismissing the ten possible examples of obstruction in the Report, was simply factually inaccurate (and in once case, conflicted with something Barr’s own DOJ said a year later). It was not just the then-ongoing Roger Stone conspiracy investigation that refuted the claims Barr had rubber-stamped in secret, and it was not just the ongoing Roger Stone investigation that Barr later took unprecedented steps to thwart so as to protect his basis for exonerating the President. They made claim after claim that wasn’t even an accurate representation of the Report. Just as one measure, as noted, the memo doesn’t use the word pardon at all; the Mueller Report uses it 67 times.
It was only the expectation that all this would remain secret that let Barr and his flunkies entertain the fantasy that any of this could, “promot[e] confidence on the part of the public and individual defendants that important prosecutorial decisions will be made rationally and objectively on the merits of each case.” So they had to keep it secret.
And so, after it was written, a snowball of additional corruption followed, with DOJ making false claims about what was in the memo, and DOJ making more false claims, and Barr taking extraordinary steps to try to ensure that later facts didn’t prove him wrong.
But you don’t have to go further than these nine pages to see that this intervention just dripped with the corruption they were trying to deny.
https://www.emptywheel.net/wp-content/uploads/2020/07/Screen-Shot-2020-07-28-at-4.35.21-PM.png11782014emptywheelhttps://www.emptywheel.net/wp-content/uploads/2016/07/Logo-Web.pngemptywheel2022-08-25 07:55:322022-08-25 07:55:32Bill Barr Performed the Corruption He Was Trying To Deny
In a post last year about what was then a still heavily-redacted Amy Berman Jackson opinion ordering DOJ to release a Barr memo covering up the Mueller investigation, I wrote that this might finally be the case where DOJ would be held accountable for bullshit claims made in service of protecting secrets in FOIA cases.
Will Amy Berman Jackson Finally Break the Spell of OLC Feeding Bullshit FOIA Claims to DC District Judges?
Yesterday, Judge Amy Berman Jackson ruled that the government must turn over a memo written — ostensibly by Office of Legal Counsel head Steve Engel — to justify Billy Barr’s decision not to file charges against Donald Trump for obstructing the Mueller Investigation. The Center for Responsibility and Ethics in Washington FOIAed the memo and sued for its release. The memo itself is worth reading. But I want to consider whether, by making a nested set of false claims to hide what OLC was really up to, this opinion may pierce past efforts to use OLC to rubber stamp problematic Executive Branch decisions.
A key part of ABJ’s decision pivoted on the claims made by Paul Colburn, who’s the lawyer from OLC whose job it is (in part) to tell courts that DOJ can’t release pre-decisional OLC memos because that would breach both deliberative and attorney-client process, Vanessa Brinkmann, whose job it is (in part) to tell courts that DOJ has appropriately applied one or another of the exemptions permitted under FOIA, and Senior Trial Attorney Julie Straus Harris, who was stuck arguing against release of this document relying on those declarations. ABJ ruled that all three had made misrepresentations (and in the case of Straus Harris, outright invention) to falsely claim the memo was predecisional and therefore appropriate to withhold under FOIA’s b5 exemption.
Yesterday, the DC Circuit decided that (unless DOJ appeals again) yes, this will be that case. It ordered DOJ to release the rest of the Barr memo and it did so for precisely the reasons ABJ laid out: DOJ had played games with its claims about what was in the memo.
The opinion, written by Sri Srinivasan and joined by Judith Rogers and David Tatel, agreed with ABJ that the Department’s Declarations evolved but yet never actually described the predecisional advice at hand — which ABJ and the Circuit agree pertained to what Barr should say to Congress about Mueller’s results.
The Department’s submissions during the course of this litigation have at various times suggested three decisional processes to which the March 2019 memorandum might have pertained. The first two, as the Department acknowledges, cannot support its reliance on the deliberative-process privilege. As for the third, although that one might well have justified the Department’s invocation of the privilege, the Department never relied on—or even mentioned—that decisional process in the district court until the Department had already noticed its appeal to this court. And the district court was not required to grant judgment to the Department on a theory the Department never presented before taking an appeal.
The first of the three decisional processes suggested in the Department’s submissions to the district court concerned whether to charge President Trump with a crime. Although the Department has since clarified that it was never in fact considering a prosecution, the Department’s submissions to the district court appeared to indicate in various ways that the March 2019 memorandum made recommendations about an actual charging decision.
If the Department’s analysis of whether the evidence in the Mueller Report would support an obstruction-of-justice charge did not in fact relate to a decision about whether to initiate or decline a prosecution, then why engage in that analysis? The Department’s submissions to the district court perhaps could be interpreted to indicate that the memorandum’s analysis of that question, if not related to an actual charging decision, was instead part of an abstract thought experiment. On that conception, the memorandum formed part of an academic exercise to determine whether President Trump’s conduct met the statutory definition of obstruction, solely for Attorney General Barr’s information, without any connection to any ensuing action by Barr or the Department.
3. Because there was never an actual charging decision to be made in this case, and because the Department does not rely on a mere thought experiment about whether the evidence would support a charge as the relevant decisional process, the question naturally arises: what is the decisional process that the Department believes justifies its withholding of the March 2019 memorandum? The Department’s answer, per its briefing in our court, is that the memorandum “was intended to assist the Attorney General in deciding what, if anything, to communicate to Congress and the public about whether the evidence recounted in the Special Counsel’s report was sufficient under the Principles of Federal Prosecution to support a prosecution.” Dep’t Br. 25–26. That is, the deliberations about whether the evidence in the Report amounted to a crime went to deciding whether to say something to the public on that issue, not deciding whether to initiate a prosecution (which was never on the table).
And here, it is now apparent that the March 2019 memorandum recommended reaching a conclusion on the evidentiary viability of an obstruction-of-justice charge as a means of preempting a potential public reaction to the Mueller Report. In that light, if the Department’s submissions to the district court had connected the memorandum to a decision about making a public statement, then the district court might well have concluded that the memorandum was privileged. But that is not how the Department elected to justify its invocation of the privilege in the district court.
And because DOJ claimed that the memo pertained to one kind of predecisional advice (whether to charge a President who could not be charged) rather than the real predecisional advice (to tell Congress that he couldn’t have been charged based on the evidence), the Circuit holds, DOJ must release the full memo.
In short, while the decisional process on which the Department now relies involved a determination as to whether the Attorney General should make a public statement, none of the Department’s submissions to the district court suggested that the March 2019 memorandum related to such a decision. In its briefing to us, the Department expresses regret that its submissions to the district court could have left the misimpression that an actual charging decision was under consideration, and it assures us that any misimpression it may have caused to that effect was inadvertent and not the result of any bad faith. Still, the Department at no point indicated to the district court that the memorandum gave advice on the making of a public statement. The Department thus failed to carry its burden to establish the relevant decisional process.
This section of the opinion, if it is not appealed, would lay important new groundwork for FOIA litigation. It effectively holds that if the government provides bullshit excuses about the reasons it wants to protect something from FOIA release (as they did here), even if there was a different reason that would have been legal but embarrassing that they did not make, their failure to provide the real reason in their declarations effectively waives their opportunity to make it.
Holding an agency to its burden in that regard serves important purposes. “The significance of agency affidavits in a FOIA case cannot be underestimated.” King v. DOJ, 830 F.2d 210, 218 (D.C. Cir. 1987). In a standard FOIA case, the government agency knows the full contents of any withheld records, while the requester confronting black redaction boxes is (literally) left in the dark. The requester’s lack of knowledge “seriously distorts the traditional adversary nature of our legal system’s form of dispute resolution.” Vaughn v. Rosen, 484 F.2d 820, 824 (D.C. Cir. 1973). An agency’s declarations supporting its withholdings “must therefore strive to correct, however imperfectly, the asymmetrical distribution of knowledge that characterizes FOIA litigation.” King, 830 F.2d at 218.
This case is illustrative. In its district court briefs, CREW focused its arguments on why the Department could not have been considering obstruction charges against the sitting President. That was understandable, because CREW had no reason to suspect that the memorandum might have related to a distinct decisional process about making a public statement. We cannot sustain the withholding of the memorandum on a rationale that the Department never presented to the district court and that CREW therefore never had an opportunity to challenge.
The Department responds with an argument that would effectively shift the burden from the Department to the court. According to the Department, even if it failed to establish that the March 2019 memorandum related to a decision about making a public statement, the district court should have reached that conclusion of its own accord based on its in camera review of the memorandum. The Department thus now seeks to prevail based on the district court’s in camera review even though the Department had initially objected to that review. We cannot accept the Department’s argument.
In a FOIA case, the government bears the burden of showing that requested records are exempt from disclosure. The government is a party in every FOIA case, is well versed in the conduct of FOIA litigation, and is fully capable of protecting its own interests in that arena. A district court can rely on the government to do so and can assume that the government has reasons for its choices and an understanding of their implications. It would put too much on the district court—and would relieve the government of its summary judgment burden—to expect a judge reviewing records in camera to come up with unasserted legal theories for why a document might be exempt from disclosure. To hold otherwise would “seriously distort the traditional adversary nature of our legal system’s form of dispute resolution.” Vaughn, 484 F.2d at 824.
Here, the Department failed to satisfy its burden, and the district court, as the court itself explained, was “under no obligation to assess the applicability of a privilege on a ground the agency declined to assert.” CREW, 538 F. Supp. 3d at 140 n.11.
And the opinion rejects the government’s argument it should have gotten a do-over, because it did not ask for reconsideration.
The Department contends that, even if the district court was not required to grant judgment in its favor, the court at least should have given the Department an opportunity to make supplemental submissions. We are unpersuaded by the Department’s assertion that the district court needed to sua sponte grant it a do-over.
The Department was given a number of opportunities to justify its withholding of the March 2019 memorandum. After initially attaching two declarations to its motion for summary judgment, the Department attached an additional declaration to its reply brief. Those three declarations, coupled with the Department’s two briefs, gave ample opportunity to identify Attorney General Barr’s messaging to the public as the relevant decisional process. But the Department never did so. Nor did the Department ask for an additional chance to clarify its position after seeing the district court’s summary-judgment decision, which pointed out that the Department’s submissions up to that point had created a misimpression about the nature of the decisional process. The Department did not move for reconsideration, instead seeking only a stay pending appeal. We cannot fault the district court for not giving the Department another chance when the Department never requested one.
The government can appeal this decision.
And by my read, DOJ still (says it) disagrees with CREW and the judges about the predecisional advice was. In DOJ’s briefing, it maintains the decision was ultimately about the sufficiency of evidence against Trump — which the Circuit calls a thought experiment — not about a PR stunt. That is, it’s saying that its briefing was close to accurate, and ABJ should have understood that once she read the memo itself.
Perhaps whatever Steven Engel and Ed O’Callaghan had to say in the sealed part of the memo really is something DOJ will go to the mat to (or assume a Trump majority on SCOTUS will) hide. Perhaps that’ll incent DOJ to try again or go to Trump’s protectors at SCOTUS to keep this sealed.
But some of the other things DOJ did — such as not asking for reconsideration — may make this an uphill climb in any case.
In any case, the Circuit did — as ABJ did herself — sharply limit the application of this decision. This decision does not affect the hated b5 exemption.
Our decision is narrow. We do not call into question any of our precedents permitting agencies to withhold draft documents related to public messaging. Indeed, if the Department had identified the March 2019 memorandum’s connection to public messaging, the district court might well have sustained the Department’s reliance on the deliberativeprocess privilege. And of course nothing in our decision should be read to suggest that deliberative documents related to actual charging decisions fall outside the deliberativeprocess privilege. We hold only that, in the unique circumstances of this case, in which a charging decision concededly was off the table and the agency failed to invoke an alternative rationale that might well have justified its invocation of the privilege, the district court did not err in granting judgment against the agency.
It only affects the consequences of providing bullshit excuses for trying to keep something secret.
We won’t know for some days yet whether DOJ will appeal. For now, though, the Circuit is holding DOJ accountable for misrepresentations in service of Barr’s cover-up.
https://www.emptywheel.net/wp-content/uploads/2018/02/RobertMueller_PeteSouza_2012_Wikimedia.jpg10541500emptywheelhttps://www.emptywheel.net/wp-content/uploads/2016/07/Logo-Web.pngemptywheel2022-08-20 09:50:472022-08-20 09:57:58Demands for Sua Sponte Do-Overs and Billy Barr’s Thought Experiment about Trump’s Criminality
As noted, yesterday the DC Circuit rejected Mike Flynn’s request that they order Judge Emmet Sullivan to grant the motion to dismiss requested by the government. While the per curiam opinion deferred to Sullivan to resolve the motion to dismiss and left him on the case, the last line of the majority opinion ordered Sullivan to hurry things along.
As the underlying criminal case resumes in the District Court, we trust and expect the District Court to proceed with appropriate dispatch.
Today, in an order effectively written immediately after the Circuit Court order, Judge Sullivan instructed the two sides to resume the process he set back before Flynn moved for a writ of mandamus.
In light of the Opinion and Order issued by the Court of Appeals on August 31, 2020 and Circuit Rule 41(a)(3), which states that an order denying mandamus relief “will become effective automatically 21 days after issuance in the absence of an order or other special direction… to the contrary,” the parties are directed to file a joint status report with a recommendation for further proceedings by no later than September 21, 2020. The parties’ joint status report shall propose a briefing schedule regarding the deadlines for (1) the government and Mr. Flynn to file any sur-reply briefs; and (2) the government, Mr. Flynn, and the Court-appointed amicus curiae to file a consolidated response to any amicus brief of non-Court-appointed amicus curiae. It is FURTHER ORDERED that the parties shall propose three dates and times to hold oral argument. If the parties are unable to agree on a joint recommendation, the joint status report shall include each party’s individual recommendations.
In legal terms, the order requiring a status report on September 21 is also an immediate action. Circuit Court orders don’t go into effect for 21 days, in part to give the parties an opportunity to appeal. So Sullivan couldn’t require any action before September 21. It asks the parties to act immediately.
But it might well stretch past November 3, in any case. At the very least, it might force Billy Barr’s DOJ to explain why they lied to Sullivan to justify blowing up the prosecution of a guy who lied for Trump’s benefit during the last weeks of the election season.
Back when Sullivan laid out the process that the DC Circuit just let him continue on May 19, he gave amicus John Gleeson 21 days to file his opening brief, then a week for each response, with a surreply granted to Flynn and the government from the start.
MINUTE ORDER as to MICHAEL T. FLYNN granting 209 Motion to File Amicus Brief. The following schedule shall govern the proceedings in this case subject to a motion for reconsideration, for good cause shown, filed by no later than 12:00 PM on May 26, 2020: (1) the Court-appointed amicus curiae shall file the amicus brief by no later than 12:00 PM on June 10, 2020; (2) any motion seeking leave to file an amicus brief by non-Court-appointed amicus curiae shall be filed by no later than 12:00 PM on June 10, 2020; (3) the government and Mr. Flynn shall file their responses to the amicus brief of the Court-appointed amicus curiae by no later than 12:00 PM on June 17, 2020; (4) the Court-appointed amicus curiae shall file a reply brief by no later than 12:00 PM on June 24, 2020; (5) the government and Mr. Flynn shall file any sur-reply briefs by no later than 12:00 PM on June 26, 2020; and (6) the government, Mr. Flynn, and the Court-appointed amicus curiae shall file a consolidated response to any amicus brief of non-Court-appointed amicus curiae by no later than 12:00 PM on July 2, 2020. Movants seeking leave to file an amicus brief are HEREBY NOTIFIED that the Court will deny any motion for leave to file an amicus brief that fails to strictly comply with the applicable Local Rules. It is FURTHER ORDERED that the Court schedules oral argument for July 16, 2020 at 11:00 AM in Courtroom 24A.
The initial briefs have been submitted, and Gleeson completed it, but did not submit it because it would have been posted on the day Neomi Rao initially upheld Flynn’s petition for a writ.
So Gleeson could presumably submit his reply brief on September 21, and the government and Flynn could — and presumably would want to — submit their surreply two days later, on September 23.
But Sullivan also included time in the original order for the two sides to reply to the other amicus briefs (some of which support Flynn and the government). He originally provided 8 days for that to happen, or 6 after the surreply.
If the parties used the same amount of time, it would put that deadline on September 29.
But — again, according to the original schedule — the hearing would not have happened until two weeks later. According to this schedule, that would put any hearing on October 13. That would put the hearing just three weeks before the Presidential election on November 3, lightening fast for the kind of meticulous opinions Sullivan has written earlier in this case.
By all appearances, Sullivan is responding with appropriate dispatch, as ordered by the Circuit, implementing his prior schedule on the quickest possible track given the earlier deadlines. But appropriate dispatch might still drag this thing out until it becomes clear whether Donald Trump will remain President.
[In parallel news, the Second Circuit has issued a stay on Cy Vance’s subpoena for Trump’s tax returns, and that is virtually guaranteed to drag out past the election as well.]
https://www.emptywheel.net/wp-content/uploads/2020/05/Screen-Shot-2020-05-07-at-3.10.49-PM-e1588889850879.png307240emptywheelhttps://www.emptywheel.net/wp-content/uploads/2016/07/Logo-Web.pngemptywheel2020-09-01 13:45:012020-09-01 13:45:38Emmet Sullivan’s “Appropriate Dispatch” May Extend past November 3
As I noted in this thread, last week the DC Circuit asked Mueller and Andrew Miller’s teams to submit a 10-page brief next Monday, “addressing what, if any, effect the November 7, 2018 designation of an acting Attorney General different from the official who appointed Special Counsel Mueller has on this case.”
It shouldn’t have any role in Miller’s subpoena. After all, at the time that action was taken, Mueller’s authority had no defects (unless Miller wins this challenge, which is unlikely, even at SCOTUS). It might, however, have an effect going forward, and Monday’s brief is an opportunity for Mueller to make that case publicly, and make it both for this challenge and the Mystery Appellant challenge, if that one pertains to Mueller’s authority. (Sri Srinivasan and Judith Rogers, two of the three judges hearing Miller’s appeal, have been involved in the Mystery Appeal as well, so know the substance of it.)
As luck would have it, a key expert just provided Mueller’s team important material for their brief.
Neal Katyal was (as he has written extensively) the author for the special counsel regulations that Mueller works under. Last week, he teamed up with conservative lawyer George Conway to argue that Whitaker’s appointment is unconstitutional. Today, he published a piece arguing that Whitaker cannot supervise Mueller.
In it, he raises two problems: first, he says that he and his colleagues at DOJ — and those on Capitol Hill with whom Katyal consulted — did not envision something like what Trump has done to happen.
My Justice Department colleagues and I, along with a bipartisan group on Capitol Hill, worked through many possible scenarios before we settled on the rules that now govern Mueller’s investigation. Everyone in the debate recognized that any enhancement in the special counsel’s accountability had to come from additional supervision by the attorney general. After all, the power to supervise is the power to destroy. The attorney general can stop a special counsel from investigating altogether or stop them from taking a specific step (such as subpoenaing a president). He can read every file of the counsel, and he may even attempt to give information about the investigation to the president in real time. And he plays a crucial role in determining what report by Mueller, if any, is given to Congress and ultimately the public.
But no one — and I mean no one — ever thought the regulations we wrote would permit the president to install some staff member of his choice from the Justice Department to serve as acting attorney general and thereby oversee the special counsel. Such a proposal would have been laughed off Capitol Hill within a nanosecond as fundamentally at odds with the most cardinal principle that no one is above the law.
Mind you, this is just a regulation, so the several references Kaytal makes to Congress do not amount to legislative intent. Still, it does provide guidance about what the intent of the regulations were.
Katyal then describes the problem — one that directly relates to the substance of Miller’s argument. Even if Whitaker’s appointment is legal as an emergency appointment, he still needs a superior officer to supervise him. It would need to be either Rosenstein or Trump himself.
If the defenders’ claims were true, all that would mean is that Whitaker is an inferior officer who doesn’t need to be confirmed by the Senate. In that situation, someone else, a principal officer, would still need to be in place to supervise Mueller — who is also an inferior officer. That responsibility would fall once again to Rosenstein under the succession statute Congress authorized.
Sometimes, an inferior officer has to supervise other inferior officers with no principal — say, if no one else has been confirmed at the start of an administration. Or in a more hypothetical scenario, imagine a military conflict in which casualties meant there were no Senate-confirmed officials in a department. But fortunately, today’s Justice Department isn’t dealing with challenges anything like those. There are Senate-confirmed officials at the helm.
And regardless of those issues, there is yet another problem, specific to the Mueller investigation. In an emergency situation where an acting head is named, the president is, ultimately, the responsible official who supervises temporary, unconfirmed stand-ins. The idea is that there would at least be someone accountable to the public above the acting officer in those situations — and as Harry Truman put it, the buck always stops with the president.
Here, though, the idea that the president could be trusted to supervise Whitaker as he oversees Mueller’s work is absurd.
It was this kind of problem that made me ask whether bolloxing up the legality of Mueller’s action was the entire point (because otherwise I can’t imagine how Emmet Flood bought off on this action, given the troubles it may cause).
But as I’ve said, it actually seems that these issues would create a legal disability on Whitaker’s part, meaning his back-up — Rosenstein — would be required to take over.
Democrats have already asked DOJ’s top ethics official whether he has given Whitaker advice on another possible source of disability, recusal obligations.
I suspect, though, that Mueller will be just one party in a position to argue that Whitaker cannot legally supervise him.
Which, again, is what I don’t mind that Rosenstein sucked up to him so effusively last Friday. Because so long as he remains there, as the Senate-confirmed official with authority to supervise Mueller, he may well end up remaining in that position.
Yesterday, the DC Circuit held a hearing on Roger Stone aide Andrew Miller’s challenge of a grand jury subpoena. To make it crystal clear that the issues may have changed when Trump forced Jeff Sessions’ resignation the day before, the very first thing Judge Karen Henderson did was to instruct the sides to “Argue this case as if it were being argued yesterday morning.” She said then that they’d probably ask the lawyers to brief how Matt Whitaker’s appointment changed things, and today the panel ordered 10 page briefs, “addressing what, if any, effect the November 7, 2018 designation of an acting Attorney General different from the official who appointed Special Counsel Mueller has on this case.” Those briefs aren’t due until November 19, suggesting there won’t be an immediate resolution to Miller’s testimony.
But it was just as interesting how the Whitaker hiring may have influenced what the parties said yesterday.
Whitaker’s nomination undermines the Miller/Concord challenge to Mueller
Whitaker’s nomination really undermines the arguments that Miller and Concord Management (who argued as an amici) were making about Mueller’s appointment, particularly their argument that he is a principal officer and therefore must be Senate confirmed, an argument that relies on one that Steven Calabresi made this spring. Indeed, Neal Katyal and George Conway began their argument that Whitaker’s appointment is illegal by hoisting Calabresi on his petard.
What now seems an eternity ago, the conservative law professor Steven Calabresi published an op-ed in The Wall Street Journal in May arguing that Robert Mueller’s appointment as special counsel was unconstitutional. His article got a lot of attention, and it wasn’t long before President Trump picked up the argument, tweeting that “the Appointment of the Special Counsel is totally UNCONSTITUTIONAL!”
Professor Calabresi’s article was based on the Appointments Clause of the Constitution, Article II, Section 2, Clause 2. Under that provision, so-called principal officers of the United States must be nominated by the president and confirmed by the Senate under its “Advice and Consent” powers.
He argued that Mr. Mueller was a principal officer because he is exercising significant law enforcement authority and that since he has not been confirmed by the Senate, his appointment was unconstitutional. As one of us argued at the time, he was wrong. What makes an officer a principal officer is that he or she reports only to the president.
While it may be true (as Conway argued at the link) that Calabresi’s arguments are wrong for Mueller, if they’re right for Mueller, then they’re all the more true for Whitaker. So if Mueller should have been Senate confirmed, then Whitaker more obviously would need to be.
Dreeben lays out the scope of what Mueller can do with Whitaker in charge
I’m more fascinated by subtle ways that the nomination may be reflected in Michael Dreeben’s comments, though.
In their response to Miller’s challenge, Mueller’s team laid out that they had close supervision from Rod Rosenstein, but they didn’t get into specifics. It describes how the Attorney General receives information (in the form of urgent memos), and the AG can demand an explanation and intervene if he finds an action to be “so inappropriate or unwarranted under established Departmental practices that it should not be pursued.”
The Special Counsel readily meets this test. The Attorney General receives a regular flow of information about the Special Counsel’s actions; he can demand an explanation for any of them; and he has power to intervene when he deems it appropriate to prevent a deviation from established Departmental practices. The regulation envisions deference by requiring the Attorney General to stay his hand unless he determines that an action is “so inappropriate or unwarranted under established Departmental practices that it should not be pursued.” 28 C.F.R. § 600.7(b) (emphasis added). But while the Attorney General must “give great weight to the views of the Special Counsel,” id., the provision affords the Attorney General discretion to assert control if he finds the applicable standard satisfied. This authority—coupled with the Attorney General’s latitude to terminate the Special Counsel for “good cause, including violation of Departmental policies,” 28 C.F.R. § 600.7(d)—provides substantial means to direct and supervise the Special Counsel’s decisions.
And the brief describes how Mueller has to ask for resources (though describes that as happening on a yearly basis) and uphold DOJ rules and ethical duties.
The Special Counsel is subject to equally “pervasive” administrative supervision and oversight. The Attorney General controls whether to appoint a Special Counsel and the scope of his jurisdiction. 28 C.F.R. § 600.4(a)-(b). Once appointed, the Special Counsel must comply with Justice Department rules, regulations, and policies. Id. § 600.7(a). He must “request” that the Attorney General provide Department of Justice employees to assist him or allow him to hire personnel from outside the Department. Id. § 600.5. The Special Counsel and his staff are “subject to disciplinary action for misconduct and breach of ethical duties under the same standards and to the same extent as are other employees of the Department of Justice.” Id. § 600.7(c). And, each year, the Attorney General “establish[es] the budget” for the Special Counsel and “determine[s] whether the investigation should continue.” Id. § 600.8(a)(1)-(2). The Attorney General’s initial control over the existence and scope of the Special Counsel’s investigation; his ongoing control over personnel and budgetary matters; his power to impose discipline for misconduct or a breach of ethical duties; and his authority to end the investigation afford the Attorney General substantial supervision and oversight, which supplements the Attorney General’s regulatory power to countermand the Special Counsel’s investigative and prosecutorial decisions. [my emphasis]
Significantly (given the Calebresi argument) the Mueller team briefed that US Attorneys are also inferior officers, though they get to act without pre-approval.
Miller asserts that the Special Counsel has the authority to make final decisions on behalf of the United States because the regulation “nowhere require[s] the Special Counsel to seek approval or get permission from the [Attorney General] before making final decisions about who to investigate, indict, and prosecute.” Br. 22. That was also true of United States commissioners—who could issue warrants for the arrest and detention of defendants—but who nonetheless “are inferior officers.” Go-Bart Importing Co. v. United States, 282 U.S. 344, 353 (1931). And it is true for United States Attorneys, 28 U.S.C. § 547, who are also inferior officers. See Myers v. United States, 272 U.S. 52, 159 (1926); Hilario, 218 F.3d at 25-26; United States v. Gantt, 194 F.3d 987, 999 (9th Cir. 1999); United States Attorneys—Suggested Appointment Power of the Attorney General— Constitutional Law (Article II, § 2, cl. 2), 2 Op. O.L.C. 58, 59 (1978) (“U.S. Attorneys can be considered to be inferior officers”).3 Few inferior-officer positions require a supervisor to review every single decision. See, e.g., Edmond, 520 U.S. at 665; C46 n.22. Thus, the Special Counsel’s authority to act without obtaining advance approval of every decision cannot transform the Special Counsel into a principal officer, requiring presidential appointment and Senate confirmation.
More recently, Congress has enacted legislation allowing for the appointment of U.S. Attorneys by the President, with the advice and consent of the Senate, 28 U.S.C. § 541(a); by a court, id. § 546(d); or by the Attorney General, id. § 546(a)—the latter two appointment authorities manifesting Congress’s understanding that U.S. Attorneys are inferior officers. And every court that has considered the question has concluded that U.S. Attorneys are inferior officers. Thus, to the extent that the Special Counsel “can be accurately characterized as a U.S. Attorney-at-Large,” Br. 17; see 28 C.F.R. § 600.6 (Special Counsel has the “investigative and prosecutorial functions of any United States Attorney”), the Special Counsel, like any U.S. Attorney, would fall on the “inferior officer” side of the line.
This latter argument doesn’t address the Miller/Concord claim that Mueller should have been Senate approved, but that’s part of why the Whitaker appointment is so damaging to this argument.
Compare all that with what Dreeben did yesterday. He specifically listed things that prosecutors — whether they be AUSAs or US Attorneys (though a later argument could point out that AUSAs need the approval of a USA) — do all the time: seek immunity, make plea deals, and bring indictments.
Prosecutors do this all the time. They seek immunity. They make plea agreements,. They bring indictments.
Dreeben later specified specifically what they’d need to get pre-approval for: subpoenaing a member of the media or, in some cases, immunizing a witness.
We have to get approval requires just like US Attorneys do. If we want to subpoena a member of the media, or if we want to immunize a witness, we’re encouraged if we’re not sure what the policy or practice is, to consult with the relevant officials in the Department of Justice. If we wanted to appeal an adverse decision, we would have to get approval of the Solicitor General of the United States. So we’re operating within that sort of supervisory framework.
But otherwise, per Dreeben’s argument yesterday, they wouldn’t need Whitaker to pre-approve most actions, including indictments — only to respond to an urgent memo by saying such an action was outside normal DOJ behavior.
Given my suspicions that John Kelly may be the Mystery Appellant challenging a Mueller request, Dreeben’s very detailed description of US v. Nixon’s assumptions about special prosecutors is particularly notable. His comments were intended to use US v. Nixon to support the existence of prosecutors with some independence. He very specifically describes how US v. Nixon means that the President can’t decide what evidence a prosecutor obtains in an investigation.
The issue in that case was whether a dispute was justiciable when the President of the United States exerted executive privilege over particular tapes and a special prosecutor was preceding in court in the sovereign interests of the United States to obtain evidence for a pending criminal case. And the President’s position was, I’m President of the United States. I’m vested with all executive authority, I decide what evidence is to be used in a criminal case. This is just a dispute between me and someone who is carrying out on a delegated basis a portion of my authority, it is therefore not justiciable. And the Supreme Court’s reasoning was, well, it actually is, because under a legal framework, the President does not have day-to-day control over individual prosecutions. That authority is vested in the Attorney General who is the representative of the United States as sovereign, in court. And he, exercising the powers under 28 USC 515, 533, and a couple of other statutes that dealt with powers being vested in the Attorney General and powers being delegated down, but acting pursuant to those powers, appointed a special prosecutor and vested him with a unique set of powers and those powers enabled him to go into court and to meet head to head in an adversarial proceeding the President’s claim as President that particular tapes were covered by Executive Privilege as against the sovereign’s claim through the special prosecutor that these tapes were relevant and admissible in a pending criminal case. [my emphasis]
None of this is a revolutionary interpretation of US v. Nixon. But the mystery dispute pertains to Kelly’s testimony — or some other move on the part of the White House to dictate what Mueller can and cannot do — then the language is notable, particularly given that two of the judges in yesterday’s hearing, Judith Rogers and Sri Srinivasan, have been the judges working on the mystery appeal.
Notably, along with submitting their brief in that appeal yesterday, Mueller’s team submitted a sealed appendix.
This sealed supplemental appendix may pertain to something Mueller just got, which would suggest that appeal may have everything to do with why Sessions was fired right away.
We’ll learn more when Mueller submits his brief on November 19 (though by then this will likely be ancient history).
But it sure seems like Dreeben was making the first argument about limits to how much Whitaker can tamper in the Mueller investigation.
https://www.emptywheel.net/wp-content/uploads/2016/08/emptywheel_02-1.png10001500emptywheelhttps://www.emptywheel.net/wp-content/uploads/2016/07/Logo-Web.pngemptywheel2018-11-09 12:13:192018-11-09 14:04:24In Thursday Hearing, Mueller’s Team Gets Specific about What They Can Do without Whitaker’s Pre-Approval
Within minutes after the public announcement of Antonin Scalia’s death, Senator Mike Lee’s flack Conn Carroll started predicting Obama would have zero chance of successfully naming a successor. After Carroll, one after another actual Senator followed that sentiment, including Chuck Grassley and Mitch McConnell, both of whom would have the ability to stall any Obama nominee. From that point, the GOP was pretty much committed, they said, to preventing any Obama nominee from being confirmed.
That led to a bunch of bad comparisons — between judges like Robert Bork who was rejected and Miguel Estrada who never got a vote — and simply going a year without acting on a President’s nominee. Even the comparison with Anthony Kennedy (who was nominated in November after two other nominees, including Bork, failed) is inapt, as he was nominated earlier than any Obama pick would be (though in a sense that fetishizes the year that would pass without a nominee).
I, like bmaz, believe Obama will pick someone fairly centrist, probably someone who has been recently confirmed by big margins. I agree the most likely nominee will be Sri Srinivasan, who in 2013 was confirmed to the DC Circuit with a 97-0 vote — though I’m also mindful of the wisdom (given the GOP unanimity about obstructing this nominee) of picking someone who drive Democratic turnout — an African-American woman, for example. Though I highly doubt Obama will nominate Loretta Lynch, as some have suggested, not least because the fight over releasing data on HSBC’s continued money laundering will draw more attention as it moves toward appeal, which might focus attention on her role in administering the wrist slap in the face of egregious drug cartel and terrorist supporting money laundering.
After some reflection, some conservatives have suggested that the GOP would have been better served if they had simply not managed to pass Obama’s nominee, rather than making such a big stink about it.
I think that ignores how much both parties look forward to using this nominee to drive turnout — and regardless of who the respective nominees are, the GOP have a much bigger challenge in getting enough voters to turn out to elect a GOP president in November, so I’m sure they’re quite happy to have an issue that (they presumably hope) might flip some conservative Latino votes — though one likely outcome of an extended 8-member court is that the Fifth Circuit’s ruling staying Obama’s immigration orders will be upheld after a 4-4 tie on the court, which might have the opposite effect.
Furthermore, I think it ignores one other factor. Srinivasan has been predicted to be Obama’s most likely SCOTUS appointment for almost 3 years (few people consider how such predictions might have influenced Ruth Bader Ginsburg’s decision not to retire). The Republicans probably presume he’s the most likely candidate as well.
The presumption Srinivasan — or someone similar — would be the nominee easily justifies the GOP’s immediate promise they won’t confirm a nominee. That’s because they need to explain why someone they just overwhelmingly confirmed, someone who faced more opposition from the left than the right, suddenly became unacceptable.
More importantly, I presume the GOP wants to keep open the possibility of confirming Srinivasan or whatever centrist Obama appoints during the Lame Duck. Here’s why:
Barring any replay of Bush v. Gore, both sides will know on November 9 who would get to pick Scalia’s replacement if Obama’s pick failed. Both sides will also know the makeup of the Senate. Because of the demographic issues I mentioned earlier, the likely Democratic nominee, Hillary Clinton, is most likely to win. That’s not to say I think she’s necessarily the strongest candidate — even ignoring the potential the email scandal will taint close advisors like Huma Abedin or Jake Sullivan, I think it likely the economy will be crashing by November in a way that would favor Trump if he were the GOP nominee facing Hillary. But I think electoral demographics suggest the GOP will have a harder time winning this year, particularly after a year of Trump branding the GOP with bigotry.
Plus (ignoring my suspicion the economy will be crashing by November), we’re likely to have a more Democratic Senate after November. Harry Reid is the only retiring Democrat where the replacement race is currently perceived to be toss-up, whereas Marco Rubio, Mark Kirk, Kelly Ayotte, and Ron Johnson are all deemed to be likely toss-ups, if not Dem-favorable. It’s still most likely the GOP will have a slight majority, but a smaller one, in the Senate, one where people like Susan Collins could make more of a difference. But it is likely to be more Democratic.
If Hillary wins (the most likely outcome) and Democrats win the Senate (unlikely, but feasible), then the Republicans will have good reason to want to confirm an Obama nominee perceived to be centrist. Whereas Srinivasan looks far worse than Scalia to the Republicans, he would all of a sudden look far preferable to a Hillary choice with the time to wait out the Senate. The GOP would have time between November 9 and the Christmas break to confirm whatever Obama nominee has been languishing.
In other words, I think the GOP have provided a way to stall someone (like Srinivasan) they have recently confirmed, while leaving the possibility of confirming that person if November makes it likely the next nominee will be more liberal.
One more thing: Commentary on this process has presumed that McConnell and Grassley (and Obama) learned of Scalia’s death when we all did. I would hope that Obama, at least, got word well before that, particularly given the involvement of at least the US Marshals and according to some reports the FBI. But I also wouldn’t leave out the possibility that one of the 39 other still unidentified guests at the ranch this weekend gave the Republican leadership a heads up as soon as a hearse showed up. So it’s possible that what looked like quick knee-jerk response on the part of Republican leadership was instead more considered, along the lines I’ve just laid out.
https://www.emptywheel.net/wp-content/uploads/2016/07/Logo-Web.png00emptywheelhttps://www.emptywheel.net/wp-content/uploads/2016/07/Logo-Web.pngemptywheel2016-02-15 09:21:012016-02-15 09:44:12The Play on the Scalia Replacement: Remember the Lame Duck
Antonin Scalia is dead. Say what you will, there is no rejoicing from me. Was Nino a malefactor in Supreme Court jurisprudence over the decades since his confirmation on September 26, 1986? Yes, and an irascible one as well. Once Bork got Borked, Scalia was the whipping post for all liberals, on the continuity of the spectrum. Did he earn that status? Yes, and maybe then some.
The hagiography of Nino is already quite well underway. I was out shopping for garden/landscaping things and had no idea until called by Marcy. It still took me a while to get back and dive into this. There are a million takes already underway on the net and in the press, such as the press may be these days. If you want a recap of the same old, this ain’t it. And, for now, what I have to say is not all that long or extricated.
First off, let’s talk about Scalia the man and Justice. As said above, once Bork got Borked, there was going to be a piñata for liberals (like me) to pound on. And, over the years, boy have I, and we, done just that. And for, mostly, good reason.
But anybody can blabber about what a prick Nino was. Fairly. But, in the current context, I want to do something different. As loathsome as Scalia often was, he was still somewhat of a hero to people that practice actual criminal law. No, not across the board, but enough that it ought be mentioned and left as a part of his legacy.
Why? Okay, this is a quick take:
Fourth Amendment: There is actually a long thread of Scalia decency on Fourth Amendment issues over the years. I have had occasion to quote him from both majority and dissents frequently. But, most recently, you can probably relate most easily to United States v. Jones, Riley v. California and, significantly, Kyllo v. United States. Now Scalia only penned Jones and Kyllo, but his fingerprints were all over Riley too. This is just my opinion, but I am not sure that a lesser conservative justice on the court would have seen these decisions through, and allowed them to be as consensus as they were.
Since joining the United States Supreme Court in 1986, Justice Scalia has been a prominent voice on the Fourth Amendment, having written twenty majority opinions, twelve concurrences, and six dissents on the topic. Under his pen, the Court has altered its test for determining when the Fourth Amendment should apply; provided a vision to address technology’s encroachment on privacy; and articulated the standard for determining whether government officials are entitled to qualified immunity in civil suits involving alleged Fourth Amendment violations. In most of Justice Scalia’s opinions, he has championed an originalist/textualist theory of constitutional interpretation. Based on that theory, he has advocated that the text and context of the Fourth Amendment should govern how the Court interprets most questions of search and seizure law. His Fourth Amendment opinions have also included an emphasis on clear, bright-line rules that can be applied broadly to Fourth Amendment questions. However, there are Fourth Amendment opinions in which Justice Scalia has strayed from his originalist/textualist commitments, particularly in the areas of the special needs doctrine and qualified immunity.
I do not agree with everything in MacDonnell’s article, but it is quite good and his dubious context is spot on. Scalia has been more than prominent in Fourth Amendment jurisprudence since his time on the court. I have serious issues with many of the “exceptions” he has bought off on in the name of police expediency, but I can, and do, imagine a different justice being far, far, worse on the Fourth (can you say “Alito”? Of course you can). So, there is that. But, by the same token, I remember coming out of court and getting informed of the Kyllo decision. Several drinks were hoisted to Scalia that afternoon and night.
Then, there is the Sixth Amendment. This is an area on which Scalia gets scant attention and credit for. And, yes, if you practice criminal law, it is one of critical importance, whether pundits or the press realize it or not. Because if you happen to actually do criminal jury trials (or bench for that matter), you know the critical importance of being able to confront and cross-examine the witnesses and evidence against your client, the defendant. I have cited Scalia’s words, both successfully and unsuccessfully, for a very long time on confrontation issues. But the successes I, and clients, have had owe in large part due to Scalia. Here is a bit from David Savage, of the LA Times, from 2011 that summarizes Scalia’s Confrontation Clause championing about perfectly:
The 6th Amendment to the Constitution says the “accused shall enjoy the right … to be confronted with the witnesses against him.” To Scalia, this clause not only gives defendants the right to challenge actual witnesses, but also the right to bar testimony from all those “witnesses” who did not or cannot testify in court. He takes this view even if the witness is dead.
Three years ago, Scalia led the court in reversing the murder conviction of a Los Angeles man who shot and killed his girlfriend. A police officer testified the victim had reported that Dwayne Giles threatened to kill her. Scalia said that testimony violated Giles’ rights because he could not confront or cross-examine her.
“We decline to approve an exception to the Confrontation Clause unheard of at the time of the founding,” Scalia said for 6-3 majority. This went too far for liberal Justices John Paul Stevens and Stephen G. Breyer.
Two years ago, Scalia spoke for a 5-4 majority reversing the conviction of an alleged cocaine dealer from Massachusetts because prosecutors did not bring to court a lab analyst whose test confirmed the bags of white powder were indeed cocaine. The dissenters, including Chief Justice John G. Roberts Jr. and Justices Anthony M. Kennedy and Samuel A. Alito Jr., said a lab technician who conducts a test is not a “witness” in the ordinary sense of the term.
In June, the court went one step further. The Scalia bloc, by a 5-4 vote, overturned the drunken-driving conviction of a New Mexico man because the lab analyst who testified about his blood alcohol did not actually work on the defendant’s blood sample. He put together an odd-couple coalition with Justices Clarence Thomas, Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan.
“This is not a left-right split. This is principle versus pragmatism,” said University of Michigan law professor Richard Friedman.
Frankly, Scalia has only reinforced that since late 2011 when Savage wrote said words. If you practice in a criminal trial courtroom, you owe a debt of gratitude to Antonin Scalia for your ability to still confront and cross-examine witnesses and evidence. I don’t think it is hyperbole to say that, without Scalia, this fundamental procedural right would be totally shit right now.
So, this is but a nutshell of the greater whole, and I am still trying to catch up. But those are my thoughts for now. Do not get me wrong, Antonin Scalia was never, nor will ever be, my favorite, nor even an overall positive Supreme Court Justice in my eyes. There is too much malignancy and caustic history from Scalia, on far too many fronts, for that to ever be the case. But the man is not yet even in the ground, and there were a couple of important positive things to say before the ultimate obituary is written.
And, on one other note, let’s keep in mind that the warm and fuzzy stories of Scalia with Ruth Bader Ginsburg, from court interaction, to opera to shooting at animal trips is not the only history of Nino Scalia and women on the Supreme Court. He was, certainly less famously, in some instances, a frat boy jerk to Sandra Day O’Connor. So, take the lionization of the Kagan relationship with a healthy grain of salt.
Antonin “Nino” Scalia was a flawed, but important man. He is now gone. So, the biggest issue is, what happens now? Republican leadership did not have to announce that they will stall their asses off and try to prevent the confirmation of ANY nominee that Obama would put up. Frankly, that went without saying in today’s Congress.
Obama has already said he will make a nomination, and I believe he will. If I had to bet right now, my bet is that the nominee is Sri Srinivasan. I have long thought this, and Sri, while being a decent guy, is a dead nuts centrist, barely a “liberal” at all kind schlub that Obama loves. But I doubt the crazed GOP led Senate would confirm even a milquetoast centrist like Srinivasan. Let other speculation begin now even though the chances of confirmation of any nominee are close to nil.
Irrespective, the primary, and certainly the general, elections just got FAR more interesting. Frankly, this is the only part of the election I was really worried about from the get go. Now it is squarely on everyone’s plate.