Judge Newsom, concurring, asks whether the categorial approach has "jumped the shark."

 

Here's the opinion.  For those of you who don't get the reference, here's a link the wiki page on it.

Gotta love it.

When will the actual search warrant affidavit get unsealed?

 That's really the most important document, by far.  It has the justification -- or the explanation of probable cause -- for the search.  

Meantime, the insane attacks on Magistrate Judge Reinhart have led to renewed calls for extra security for judges.  From Reuters:

The federal judiciary is renewing calls for Congress to pass a stalled bill aimed at bolstering judges' security after the magistrate judge who signed off on a warrant authorizing an FBI search of Donald Trump's Florida home became the subject of online threats.

The chair of a key judiciary security committee and the president of the Federal Judges Association in separate remarks on Thursday pushed for the bill after U.S. Magistrate Judge Bruce Reinhart became the target of a wave of violent, anti-Semitic threats.

***

That legislation, the Daniel Anderl Judicial Security and Privacy Act, was named for the deceased son of U.S. District Judge Esther Salas, who was killed in an attack at the New Jersey judge's home in July 2020 by a disgruntled lawyer.

That bill would allow federal judges to redact personal information displayed on government websites and bar people and businesses from publishing such information online if they have made a written request not to do so.

The Senate Judiciary Committee advanced the bill on a bipartisan 22-0 vote in December, but attempts to quickly pass it unanimously in the Senate have been blocked by Republican Senator Rand Paul of Kentucky, who says it should also cover members of Congress.

U.S. Circuit Judge Richard Clifton, the president of the Federal Judges Association, in an interview said with time running out in the current Congress to pass the bill, judges are being encouraged to contact their local lawmakers.

"The news of the last few days underscores the concern that we have," said Clifton, who former Republican President George W. Bush appointed to the 9th U.S. Circuit Court of Appeals.

Judge Reinhart Orders Unsealing of Search Warrant and attachments

 By John R. Byrne

 Hot off the presses. Here's the order. The inventory of the seized items will remain redacted. Here are the unsealed materials.

Here's a write up from the Sun Sentinel. But some notable items described in the property receipt include an "Executive Grant of Clemency re: Roger Jason Stone, Jr.,""Info re: President of France," and numerous entries for "Miscellaneous Top Secret Documents."

Motion to unseal search warrant

 Here's the motion, signed by the U.S. Attorney (Tony Gonzalez) and Jay Bratt, the Chief of the Counterintelligence section.

Just filed in the Mar-a-Lago warrant case: “UNITED STATES’ MOTION TO UNSEAL LIMITED WARRANT MATERIALS” pic.twitter.com/YK5DEkVwjc

— Andrew Solender (@AndrewSolender) August 11, 2022

NACDL hosting its annual meeting in West Palm Beach

 And it's been renamed the Albert Krieger annual meeting, which is very cool.

Other news:

1.  Trump takes 5.  Get ready for all of the bad 5th Amendment takes.

2. If the government moves to dismiss 4 counts so that the defendant can plead guilty to the remaining count, can the district court deny that motion?  Nope, says the 8th Circuit (but it can reject the plea to the remaining count).  From the opinion (h/t Sentencing Law & Policy):

The district court had strong views about what charges fit Tiffany Bernard’s crimes. It rejected both her plea agreement and a motion by the government to dismiss four of the five counts in the indictment. The latter ruling went too far, which is why we reverse and remand with instructions to grant the government’s motion....

The parties frame the issue around Federal Rule of Criminal Procedure 48(a), which permits the government, “with leave of [the] court,” to dismiss “an indictment, information, or complaint.”...

Even if the government had to get “leave of [the] court,” it is no blank check for second-guessing charging decisions. To the contrary, “[f]ew subjects are less adapted to judicial review than the exercise by the Executive of his discretion in deciding . . . whether to dismiss a proceeding once brought.” United States v. Jacobo-Zavala, 241 F.3d 1009, 1012 (8th Cir. 2001) (citation omitted). For that reason, although the district court has some discretion in this area, it “is sharply limited by the separation of powers balance inherent in Rule 48(a).” Id. at 1011–12....

For a dismissal to be “clearly contrary to manifest public interest,” the prosecutor must have had an illegitimate motive rising to the level of bad faith. See United States v. Rush, 240 F.3d 729, 730–31 (8th Cir. 2001) (per curiam) (quotation marks omitted); United States v. Smith, 55 F.3d 157, 159 (4th Cir. 1995).  Examples include the “acceptance of a bribe, personal dislike of the victim, and dissatisfaction with the jury impaneled.”  Smith, 55 F.3d at 159. Anything less is not enough. See In re United States, 345 F.3d 450, 453 (7th Cir. 2003) (explaining that district courts do not get to “play[] U.S. Attorney”).

Here, the district court merely “disagreed with the prosecutor’s assessment of what penalty the defendant[] ought to face.” Jacobo-Zavala, 241 F.3d at 1014. Rather than addressing whether the prosecutor acted in bad faith, the court just listed the reasons it thought Bernard was getting off too easy: she was “very dangerous” and “by far the most culpable”; Alaniz suffered life-threatening injuries; and a “conviction for robbery alone strip[ped] the [c]ourt of any ability to sentence [her] to a just punishment.”  These may be important factors to consider at sentencing, but they are not reasons to interfere with the government’s charging decisions, no matter how much the court may disagree with them.

Who signed the Trump Mar-a-Lago warrant?

The Miami Herald and numerous other outlets are saying it was Magistrate Judge Reinhart.  They point to docket entries showing sealed warrants signed on 8/5 by Reinhart.  Perhaps.  

One thing that always has bothered me about search warrants is that they should not remained sealed once they are executed unless there is a real law-enforcement need to keep them sealed.  And they should almost always be made available to the party affected.  But I bet Trump's legal team hasn't even seen the actual affidavit in support of the warrant yet, which is bananas.

The warrant will likely remained sealed until (if?) an indictment is brought.  If there is no indictment, the warrant may never become public.

You Get What You Pay For

BY MICHAEL CARUSO

I assume everyone has read an opinion or order and wondered, "where did that come from?" For example, Judge Ed Carnes has quoted Bob Dyan on occasion, see, e.g., Wright v. Farouk Sys., Inc., 701 F.3d 907, 908 (11th Cir. 2012)(quoting "Not Dark Yet"), and Judge Rosenbaum has referred to a classic Star Trek scene. See McCarthan v. Dir. of Goodwill Indus.-Suncoast, Inc., 851 F.3d 1076, 1158 (11th Cir. 2017)(Rosenbaum, J., dissenting, unfortunately)(referencing the Kobayashi Maru). While some decry the use of pop culture references in judicial opinions, I enjoy them for the most part. And in my opinion, Judge Zloch wins this competition by using a line from Hilary Mantel's great novel "Bring Up The Bodies" in the context of a lawyer's ethical obligation not to present perjured testimony: “We are lawyers. We want the truth little by little and only those parts of it we can use.” 

But a recent Washington Post article provides empirical evidence of a very alarming trend in judicial opinion writing. A new paper from MIT and Maynooth University in Ireland finds that judges there routinely rely on Wikipedia articles not just for background information but for core legal reasoning and specific language they use in their decisions. In our country, the New York Times identified this trend years ago.

What? Yes, I know that once in a while, you get shown the light in the strangest of places, but Wikipedia is not a reliable source for information about legal analysis. As a user-generated source, an entry can be edited by anyone at any time and may be a work in progress, simply incorrect, or an act of vandalism.

We should be better. Many colleges and universities, as well as public and private secondary schools, have policies that prohibit students from using Wikipedia as their source for doing research papers, essays, or equivalent assignments. Perhaps The Judicial Conference of the United States should do the same for judges. After all, judicial opinions and orders are not 4th-grade book reports.

   

Sentencing Commissioners confirmed…

 …finally.

Here they are:

Judge Carlton W. Reeves: Nominee for Commissioner and Chair of the United States Sentencing Commission

Judge Carlton W. Reeves has served as a United States District Court Judge for the Southern District of Mississippi since 2010....

Laura Mate: Nominee for Commissioner and Vice Chair of the United States Sentencing Commission

Laura Mate has served as the Director of Sentencing Resource Counsel, a project of the Federal Public and Community Defenders in the Office of the Federal Public Defender for the District of Arizona, since 2021 and from 2010 to 2021 was a member of Sentencing Resource Counsel....

Claire McCusker Murray: Nominee for Commissioner and Vice Chair of the United States Sentencing Commission

Claire McCusker Murray served as the Principal Deputy Associate Attorney General of the United States Department of Justice from 2019 to 2021....

Judge Luis Felipe Restrepo: Nominee for Commissioner and Vice Chair of the United States Sentencing Commission

Judge Luis Felipe Restrepo has served as a United States Court of Appeals Judge for the Third Circuit since 2016....

Judge Claria Horn Boom: Nominee for Commissioner of the United States Sentencing Commission

Judge Claria Horn Boom has served as a United States District Court Judge for the Eastern and Western Districts of Kentucky since 2018....

Judge John Gleeson: Nominee for Commissioner of the United States Sentencing Commission

Judge John Gleeson is a partner at Debevoise and Plimpton LLP in New York, where he has practiced since 2016....

Candice C. Wong: Nominee for Commissioner of the United States Sentencing Commission

Candice C. Wong serves as an Assistant United States Attorney and Chief of the Violence Reduction and Trafficking Offenses Section in the United States Attorney’s Office for the District of Columbia....