Tuesday, September 06, 2022

Fun With Legal Twitter

Not just for the weasel words, but for the complete disregard for precedent.

Cohen provides a pretty good review of U.S. v. Nixon, where the Supreme Court established (prior to the PRA) Presidential interest in executive privilege after leaving office, and found...well, here, read it yourself:
and a bit more: Oh, and the Nixon tapes case: That all puts that first tweet in context. You see, here's the problem: It's a grossly incompetent opinion. But what to do about it? Appellate courts review and rule from a record, which means facts, not just legal motions. An appeal at this point would be interlocutory, which means both extraordinary and harder to pull off, because, among other problems, there is no record. So: strategery: The linchpin here is a statement that the records are necessary to conduct a criminal investigation, from somebody actually conducting that investigation. Because the alternative is to weigh in on when the FPOTUS has an executive privilege claim, and the Supreme Court has yet to draw a bright line around that issue. Whether it actually works like this or not is another matter. There are matters of civil procedure (rules) that aren't addressed here, and those matter mightily. But then, so does Orin Kerr's analysis of case law: (I'll skip his other citations): I know Popehat has opined (in a tweet, nothing much more than that) on this "injunction," saying it doesn't stop all that much. But a civil court order blocking a criminal investigation seems like a usurpation of executive authority to me.

And I close with Barbara McQuade, because I just gotta drop this in somewhere:
I'm guessing this "stigma" attaches more to prominent white men than to non-prominent non-whites, especially if they aren't men? Aside, of course, from the stigma of illegally possessing government documents and refusing to return them for 18 months, and then announcing yourself you were the subject of a federal search warrant. But I close with McQuade's pithy observation on what to do next: An appeal could lock this bit up in court for over a year, and if the appellate court supports the injunction until a final determination (probably by the trial court, and by "supports" I mean freezes the status quo the trial court has created until the appellate court decides), that's not helping.

So much depends on how the DOJ interprets this ruling, as it is reportedly through investigating these documents, except as to how they impact national security; and almost everyone agrees this order doesn't impact that investigation. As for protecting the institution, well: it's one court order from one district court. As I've said before, those have almost nil precedential value. Sure, a lot of defendants are gonna try it, too. But a lotta defendants are probably gonna be disappointed, as well as help establish what an outlier this opinion is.

So, we'll see....
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