News & Notes

1. Lots and lots of DUI convictions have been exposed as faulty under this NY Times report regarding the inaccurate breathalyzer tests.

2. Transitions is having its Fall Festival this Thursday, Nov. 7 at 6pm at the Historic Lyric Theatre, 819 NW 2nd Avenue.

3. Are Trump's tax returns headed to the Supreme Court? From Lyle Denniston:

President Donald Trump’s lawyers plan, within the next 10 days, to go to the Supreme Court with a plea to rule – before the Justices’ current term ends this summer – that no court has power to order that his personal and business tax returns be handed over to a state criminal investigation. That appeal follows a unanimous ruling Monday by a federal appeals court in New York City, rejecting the President’s sweeping claim of total immunity to any state probe of his financial affairs.

In its 34-page decision, a three-judge panel of the U.S. Court of Appeals for the Second Circuit ruled that the accounting firm that has the Trump personal and business tax records must obey a New York state grand jury subpoena demanding the turnover of eight years of that data, going back to January 2011. The panel stressed that its ruling was narrow and did not settle wide-ranging questions on what kind of legal immunity Trump might have, if the subpoena were aimed at him directly rather than at his accounting firm. (The firm is Mazars USA; it takes no position in the legal fight over Trump’s records.)

Under an agreement reached last month, between the state prosecutor and Trump’s attorneys, a defeat for the President in the appeals court would start the running of a 10-day period for an appeal to the Supreme Court.

Vowing to pursue that appeal, one member of the Trump legal team, Washington, D.C., attorney Jay Sekulow, said in a statement that “the issue raised in this case goes to the heart of our Republic. The constitutional issues are significant.”

Under the terms of the two sides’ agreement, the state prosecutor will make no attempt to enforce the disclosure of the tax records during the ten days that an appeal is being prepared – that is, apparently, by November 14 – and for another 10 days after that while legal papers are being submitted to the Justices by both sides. Trump’s team is also required to ask the Justices to grant review, hear and reach a final decision during the Court’s current term, which is expected to run until late June. If the Justices do grant review, the subpoena will not be enforced while the Justices work on a decision.

The Justices have complete discretion to grant or deny review; Trump has no guarantee of review. The Justices also have no duty to proceed on the schedule Trump’s team will be suggesting. However, because of the importance of the constitutional dispute, review and a speedy process very likely will be allowed.

The main constitutional question the appeal is expected to raise is this: Does the President, while serving in office, have complete immunity to any investigation by a state or local government prosecutor, even if the probe seeks information of a personal or private nature and does not demand access to any documents or data directly involving the performance of official duties?

4. Speaking of the Supreme Court, there was an interesting case there today on the 4th Amendment. From Orin Kerr:

[T]he Supreme Court will hold argument in an interesting Fourth Amendment case, Kansas v. Glover.  Glover raises a simple question: When an officer spots a car driving on a public road, and a license check reveals that the registered owner of the car has a suspended license, does the fact that the registered owner of the car has a suspended license create reasonable suspicion that the driver of the car has a suspended license that then justifies a Terry stop of the car?   Put another way, for Fourth Amendment purposes, can the police presume that the registered owner of a car is driving it?

Congrats to Judge Rodney Smith

The SDFLA clerk’s office is getting lots of experience planning big parties. The latest was for Judge Rodney Smith, who had his investiture on Friday. Still to come — Raag Singhal and the Fort Pierce seat. Then we’ll have the 11th Circuit slots for Lagoa and Luck. Good times.

RBG and the Clintons reminisce

I didn’t remember that Gov. Mario Cuomo was Clinton’s first choice for the Supreme Court. He ended up nominating Ginsburg. There was a concern about her age as she was 60 at the time. But she has served now for 27 years. More from the Washington Post:

Justice Ruth Bader Ginsburg said she knew there was concern about President Bill Clinton nominating a 60-year-old to the Supreme Court when he picked her in 1993.
“Some people thought I was too old for the job,” Ginsburg said Wednesday night during a conversation with Clinton and Hillary Clinton at Georgetown Law Center in Washington. She paused a beat.
“If you worried about my age, it was unnecessary,” she said.
Ginsburg is now 86 and entering her 27th year on the court. She and the Clintons reminisced about the old days at an annual lecture named for her.
Bill Clinton repeated that he knew within 10 minutes of interviewing then-Judge Ginsburg that he would offer her the job, although his first choice was New York Gov. Mario Cuomo.

He said she was serious about judging and laid out her views clearly. “I thought, this woman is completely on the level,” Clinton said.
Later, it was conceded that the serious Ginsburg also has a sense of humor. “It’s essential to the job,” she said.
Ginsburg says she is ‘on my way to being very well’ after cancer treatment

Hillary Clinton said she liked to think she had something to do with Ginsburg’s nomination as well. “I may have expressed an opinion or two about people he should move up” the list of possibilities, she said.

I wonder how many kids will dress up as RBG for Halloween today. Hope you have a fun night.

Are the Dems taking criminal justice reform seriously enough?

On Monday, at a forum involving former prisoners, only three Democratic nominees showed up to answer questions.  One of them is former prosecutor Kamala Harris, who has a terrible record on criminal justice reform.  Meantime, Donald Trump is speaking about criminal justice reform at every turn.  This issue has traditionally belonged to the left, but it seems to be up for grabs in the next election.  From the Marshall Project:

Harris faced questions about her record as a prosecutor in San Francisco and later as California’s attorney general, and whether she had been committed enough to “progressive prosecution.” She defended her actions, positioning herself as the only Democratic candidate who has taken tangible steps toward “reforming the criminal justice system.” The senator pointed to her creation of a reentry and job training program, for example.Harris’s critics say she opted for the most politically palatable programs while shying away from more substantive approaches, like declining to prosecute more low-level offenses, that could have reduced the number sent to prison each year in California.
***
As senator, Harris has been a vocal critic of President Trump’s First Step legislation, calling it a “compromise of a compromise.” The act granted early release for thousands of non-violent drug offenders. Harris said Monday that did not go far enough. “You took a step, but you just learned how to walk,” she said. “We need the plan for step ten.”She said on day one as president, she would conduct a comprehensive audit of the criminal justice system to understand areas for reform. Her plan also includes allocating federal funding to help local counties clear people’s criminal records, removing clemency from the Department of Justice and legalizing marijuana.

Ed Carnes to take senior status

Big news out of the 11th Circuit... Chief Judge Ed Carnes is taking senior status.  That means Donald Trump will get another judge on that court.  Currently pending are Barbara Logoa and Robert Luck.  But this seat won't go to a Florida lawyer or judge.  This one will go to someone from Alabama. 

The word is that District Judge Andrew Brasher is the favorite.  He's from the Middle District of Alabama.  If confirmed along with Lagoa and Luck, Trump will have appointed 6 judges to the court. 

Chief Judge Carnes has been on the court since 1992 (Bush) and has been Chief since 2013.