Federalist Society

The Federalist Society in Florida is known as the King & Queen maker... or more accurately, the judge makers, not only here in South Florida but across the state and nationally.  They had their big shindig in Washington, DC last week and over the weekend.  And although the Federalist Society strives to appear non-partisan, everyone knows that it is a deeply conservative organization.  This weekend, some of this speeches were over-the-top partisan, so I wonder how those who are going to these events as a way to launch their judicial careers feel about these speeches.  Here’s a New York Times article about AG Bob Barr’s speech attacking the left:

His forceful defense of the president came after some of Mr. Trump’s allies have in recent weeks accused Mr. Barr of failing to vociferously back the president. Mr. Trump was said to be frustrated that Mr. Barr urged him to release a reconstructed transcript of the July call with President Volodymyr Zelensky of Ukraine at the center of the impeachment case. The president also wanted Mr. Barr to hold a news conference to say the president had violated no laws, only to have Mr. Barr rebuff the request. Mr. Trump has denied that account.

Speaking for an hour at the upscale Mayflower Hotel a few blocks from the White House, Mr. Barr hit back at the president’s critics on an array of fronts as he argued that Mr. Trump, in his capacity as president, has not overstepped his authority.

While Mr. Barr never uttered the word impeachment, he castigated those he sees as stalling Mr. Trump’s agenda. He defended the president’s right to set policies, steer the country’s diplomatic and military relations and keep executive branch conversations confidential from congressional oversight.

“In waging a scorched-earth, no-holds-barred war against this administration, it is the left that is engaged in shredding norms and undermining the rule of law,” Mr. Barr said.

He noted that opponents labeled themselves “the resistance” immediately after Mr. Trump was elected and accused them of “using every tool and maneuver to sabotage the functioning of the executive branch and his administration.

“Resistance is the language used to describe insurgency against rule imposed by an occupying military power,” Mr. Barr said. He added that it connotes that the government is not legitimate. “This is a very dangerous and indeed incendiary notion.”

Mr. Barr spoke as the second public impeachment hearing wrapped up on Capitol Hill, where Democrats have accused Mr. Trump of abusing the power of his office for personal gain.

Marie L. Yovanovitch, the former ambassador to Ukraine, testified that she was the target of a smear campaign engineered to get Mr. Trump to remove her; she was recalled from Kiev in the spring. She said that her dismissal from the post put national security at risk by opening the door for Russia to further influence Ukraine, a strategic American ally.

Judges Lagoa & Luck to be confirmed next week

Sen. McConnell has filed cloture, which means that they should receive the final confirmation vote next week.  According to those in the know, that should be Tuesday or Wednesday.  Congrats to both of them, really good people. 

District Judge rules border search of cell phone must be based on reasonable suspicion

Unfortunately this major decision isn't from our District. It's from the District of Massachusetts. Here's the ruling.

From Forbes:

A Boston federal court ruled Tuesday that U.S. federal agents can’t conduct “suspicionless” searches of international travelers’ smartphones and laptops at the border and other ports of entry, a decision hailed by the American Civil Liberties Union (ACLU) as a “major victory for privacy rights.”

• In a 48-page decision, U.S. district judge Denise Casper ruled that border officials need justifiable reasons to search a person’s electronic devices, which should be balanced against the privacy interests of travelers.
• According to Reuters, Casper’s ruling is a higher standard than current U.S. Customs and Border Protection (CBP) and U.S. Immigration and Customs Enforcement (ICE) policies.
• Casper also ruled that the CBP and ICE policies violate the Fourth Amendment, which provides people protection from unreasonable searches and seizures.
• Agents, however, are still not required to obtain search warrants to examine phones and laptops with reasonable suspicion. 
• The ACLU was representing the case’s 11 plaintiffs; lawyer Esha Bhandari said the decision “significantly advances Fourth Amendment protections for the millions of international travelers who enter the United States every year.”

“Judge, may I address the court. We’re ready to go.”

That was U.S. Attorney Ariana Fajardo Orshan appearing in state county court. From the Miami Herald:

U.S. Attorney Ariana Fajardo Orshan, a former Miami-Dade judge, made a recent return to the state courthouse to watch a trial — involving a minor car crash.

Fajado appeared recently in support of her niece, who was the victim in a fender-bender accident in West Miami-Dade. Fajardo never identified herself on the record nor said she was the top federal prosecutor in South Florida.

But when the judge called the case, Fajardo did speak up, schooling the courtroom’s young prosecutors who appeared to be waffling on whether to proceed to trial against the woman who hit her niece’s car.

“Judge, may I address the court. We’re ready to go,” Fajardo said, according to the audio of the Oct. 22 hearing. “The issue is restitution. I told them you can reserve restitution, per statute, for 60 days to produce the deductible. They seem to think they can’t proceed forward. So I’m here on behalf of my niece, who has now missed school all day. I’m not understanding why we can’t go forward without restitution.”

Prosecutors fighting against First Step Act

That’s according to the Washington Post in this article:

The five former inmates assembled on the White House stage weren’t scheduled to speak, but President Trump couldn’t help himself. “Where’s Gregory? Greg?” he said. “Come on, get up here!”
From behind the president, Gregory Allen saluted and then made his way to the microphone. “Two months ago, I was in a prison cell, and I’m in the White House,” declared Allen, a Florida resident who had been freed under Trump’s signature criminal justice legislation. “That’s continuing to make America great again!”
The gathering in April was a triumphant celebration of the First Step Act, the most sweeping overhaul of the federal criminal justice system in a generation. Since its passage nearly a year ago, the law has led to the release of more than 3,000 inmates — including Allen, who was convicted of cocaine trafficking in 2001.
The Justice Department, though, had never wanted to let Allen out of prison. In fact, even as he and Trump shared a joyous embrace on television, federal prosecutors were trying to persuade a judge to put Allen back behind bars.
***
“DOJ is pushing against the will of the people, the will of Congress, the will of the president,” said Holly Harris, a conservative activist and leader of the Justice Action Network who worked with Congress and the White House to pass the law.
***
The First Step Act aims to lessen long-standing disparities in punishment for nonviolent drug offenses involving crack cocaine. Having five grams of crack, a form of cocaine that is more common among black drug users, used to carry the same mandatory minimum sentence as having 500 grams of powder cocaine, which is more common among white drug users.
But federal prosecutors are arguing in hundreds of cases that inmates who have applied for this type of relief are ineligible, according to a review of court records and interviews with defense attorneys. In at least half a dozen cases, prosecutors are seeking to reincarcerate offenders who have been released under the First Step Act.

This isn’t just happening in First Step cases. It’s happening across the board at sentencing. Lately, prosecutors have taken a new strategic tact — ask for middle or top of the guidelines in an effort dissuade judges from giving variances. Prosecutors are even doing this — not only opposing variances, but opposing low end sentences — in plea cases. This is done so that judges feel like they are doing the defendant some sort of favor by giving an oppressive low-end guideline sentence. Prosecutors are also asking probation to come back much higher than plea agreements state in an effort to have judges believe that a regular old guideline sentence in the plea agreement is a huge benefit to the defendant. Most judges are rejecting these outrageous tactics. But there are a few judges out there that seem to be moved by these new tactics, refusing to give any variance even for first time, non-violent offenders... which is just horrible.