News & Notes

 1.  Did the Special Counsel's office overreach by saying that Joe Biden has a bad memory?  From Politico:

The special counsel investigating President Joe Biden’s handling of classified documents has concluded that no criminal charges are warranted in the matter and said they wouldn’t be even if the Department of Justice didn’t have a policy barring the prosecution of sitting presidents.

That conclusion was revealed in a 345-page report that the Justice Department released on Thursday.

But while the report withheld condemnation of Biden on legal grounds, it presented a harsh portrait of his conduct and mental faculties. Biden improperly took classified material related to the 2009 Afghanistan troop surge and shared classified information with the ghostwriter of his 2017 memoir. The report also includes photos of classified documents in insecure places, including a cardboard box in Biden’s garage and a filing cabinet under his TV.

In the report, Special Counsel Robert Hur, a well-respected former U.S. Attorney, explained the president’s “lapses in attention and vigilance demonstrate why former officials should not keep classified materials unsecured at home and read them aloud to others, but jurors could well conclude that Mr. Biden’s actions were unintentional.”

But he said that Biden would make a defense that many jurors would find sympathetic.

“[A] trial, Mr. Biden would likely present himself to a jury, as he did during our interview of him, as a sympathetic, well-meaning, elderly man with a poor memory,” reads the report.

2.  Is Justice Jackson going to side with President Trump in the Colorado case?  From Slate:

If there was any surprise on Thursday, it was Justice Ketanji Brown Jackson’s embrace of Mitchell’s main theory that the president is not an “officer” of the United States, so Section 3 does not apply to him at all. Jackson pointed out, correctly, that the amendment lists specific positions (like senator) from which insurrectionists are disqualified and does not mention the president. “Why is that?” she asked Murray. “And if there’s an ambiguity, why would we construe it … against democracy?” Jackson suggested that the amendment was “about preventing the South from rising again” and was intended to prevent Confederates from prevailing in “local elections” involving “local concerns.” Doesn’t it seem, she mused, that the Framers excluded the presidency because of the “troubling potential disuniformity of having different states enforce Section 3 with respect of presidential elections”?

To be clear, Jackson’s argument mirrored that of professor Lawrence Lessig in Slate, not the bizarre fringe hypothesis about a secret constitutional code distinguishing office and officers. (Only Justice Neil Gorsuch poked at that idea, and even then with little enthusiasm.) Jackson’s fundamental concern mirrored that of Roberts and Kagan: Letting states disqualify federal candidates would create a patchwork of 50 wildly different regimes, handing a few swing states the authority to decide each presidential election. Sotomayor eventually gestured toward this fear as well, though she sounded genuinely torn, more so than her left-leaning colleagues. She pummeled Mitchell over his reliance on Griffin’s Case, his departure from the constitutional text, and his distortions of history. If any justice dissents, it will be Sotomayor. Yet she, too, can be a team player when called upon. And it is easy to envision the justice signing on to an opinion for Trump to create the impression of consensus.

 3.  Is the federal prison system in crisis?  From the Hill:

Due to officer shortages, other BOP employees including nurses, teachers, maintenance workers, and counselors are regularly pulled away from their main duties to fill in for officer vacancies. This practice, known as augmentation, affects the safety of both staff and inmates. The added workload and stress can lead to burnout, as individuals are managing multiple responsibilities without proper support. Pulling employees away from their regular duties also reduces inmate access to medical staff, education programs, and rehabilitation services and hampers our ability to fulfill the requirements of the First Step Act, which Congress passed in 2018 to improve an inmate’s eligibility for early release.

Ensuring everyone’s safety inside the prison walls is a major factor behind the use of special housing units, also known as restrictive housing. These units serve various purposes in prisons, including protecting vulnerable inmates and isolating dangerous ones. As BOP Director Colette Peters acknowledged while testifying before a House subcommittee in November, a large portion of inmates assigned to special housing units are there voluntarily for their protection. The pressure to limit or eliminate the use of these housing units has had a negative effect on prison security, making it even harder to retain officers.

Outside of staffing shortages, another major challenge facing BOP is the failing condition of its facilities due to lack of investment in maintaining them.

Hawaii Supreme Court says U.S. Supreme Court doesn't know what it's talking about

 Oh, you gotta like it when the states say the feds are messing things up.  This time it's about guns.  From Reuters:

The Hawaii Supreme Court has upheld the state's laws that generally prohibit carrying a firearm in public without a license--and in the process criticized the conservative-majority U.S. Supreme Court's rulings that have expanded gun rights.
Justice Todd Eddins wrote in a unanimous 5-0 decision on Wednesday that under the U.S. Constitution's Second Amendment, "states retain the authority to require individuals have a license before carrying firearms in public."

The court, comprised of three appointees of Democratic governors and two Republican-appointed judges, said it disagreed with the U.S. Supreme Court's recent rulings interpreting the right to keep and bear arms under the Second Amendment.

It expressed that disagreement as it interpreted a near-identical provision of the state's constitution which says: "A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed."

Here's the opinion, which even has a quote from The Wire:

As the world turns, it makes no sense for contemporary society to pledge allegiance to the founding era’s culture, realities, laws, and understanding of the Constitution.  “The thing about the old days, they the old days.”  The Wire: Home Rooms (HBO television broadcast Sept. 24, 2006) (Season Four, Episode Three).

And the Court explains how the feds interpretation "clashes with Aloha spirit:"

In Hawaiʻi, the Aloha Spirit inspires constitutional interpretation.  See Sunoco, 153 Hawaiʻi at 363, 537 P.3d at 1210 (Eddins, J., concurring).  When this court exercises “power on \behalf of the people and in fulfillment of [our] responsibilities, obligations, and service to the people” we “may contemplate and reside with the life force and give consideration to the ‘Aloha Spirit.’”  HRS § 5-7.5(b) (2009). The spirit of Aloha clashes with a federally-mandated lifestyle that lets citizens walk around with deadly weapons during day-to-day activities. 

Being a Supreme Court Justice in Hawaii seems like a pretty good gig.

Trump heads to SCOTUS

Big argument at 10am this morning for the future of our country. Politico dives into the six actual legal questions that are presented here:

Just 109 words.

Whether Donald Trump can legally return to the White House will come down to how the Supreme Court interprets two rarely-invoked sentences written more than a century and a half ago as a battle-torn nation sought to recover from the Civil War.

Those two sentences make up Section 3 of the 14th Amendment, known colloquially as the insurrection clause. And on Thursday, the justices will publicly grapple with their meaning, as the court hears oral arguments on whether the provision disqualifies Trump from holding office again.

Colorado’s top court, in a bombshell decision in December, said Trump is indeed ineligible because of his efforts to subvert the 2020 election and his role in inciting the violent attack on the Capitol on Jan. 6, 2021. Scores of similar challenges are pending around the country.

Most legal experts expect the court — which is controlled by a six-justice conservative majority, including three of Trump’s own nominees — to overturn the Colorado decision and keep him on the ballot. But it’s far from clear what route the court might take to reach that result.

The justices have many options, ranging from a broad declaration that Trump is not an insurrectionist to a hyper-technical interpretation that a key phrase in the insurrection clause does not apply to Trump at all.

The argument begins at 10 a.m. EST, and live audio (but no video) will be available. Here are the key questions the justices will likely grapple with.

Does the insurrection clause apply to Trump?

Trump’s leading argument in the politically charged case is a semantic one: The president, he says, is not “an officer of the United States.” The reason that’s important is that the insurrection clause applies only to certain types of officeholders who took an oath to “support the Constitution” and then engaged in insurrection. In Trump’s case, the only way for the clause to apply is if he took such an oath as an “officer of the United States” when he was sworn in as president.

“I’ll be 70 years old in a few months and it just seemed like the perfect time for me to step aside and make room for someone younger to have an opportunity to serve on the Eleventh Circuit.”

 That's Judge Charles Wilson in his interview with the DBR, available here, about taking senior status (which this blog broke at this post).  Here's a snippet of the interesting article:

Following law school, Wilson served as a law clerk for Judge Joseph Hatchett, the first Black judge on the U.S. Court of Appeals for the Fifth and Eleventh circuits. Around that time, he also met his wife, with whom he would have two children. From there, he engaged in private practice in Tampa for five years and earned accolades such as the most productive young lawyer by the Hillsborough County Bar Association.

“I practiced whatever paid the rent,” Wilson recalled. “I hung out my shingle and it was probably the best thing I could do in my career. I tried civil and criminal cases to conclusion before juries in federal and state courts. I had a general practice. I provided representation to clients in just about any case. It was a great background for a judicial career.”

Wilson went on to devote himself to public service and was later appointed as a U.S. magistrate judge in the Middle District of Florida. Then, following his recruitment by Janet Reno, the U.S. attorney general, Wilson was appointed by President Bill Clinton to serve as the U.S. attorney for the Middle District of Florida.

In September 1999, Wilson was sworn in as an Eleventh Circuit judge following his appointment by Clinton to fill the vacancy created by Hatchett’s retirement.

Wilson said that one of the lessons he imparts to his law clerks is how to conduct themselves as young lawyers. Wilson said he applied three times to serve as a federal district court judge, landed an interview the third time, but was ultimately not selected.

“I just kept my head down and worked hard and earned a reputation in the community,” Wilson said. ”Several years later I was selected to serve as a judge on the U.S. Court of Appeals. And there I was reviewing decisions by the district judges who were appointed when I was not selected as a district judge.”

Both Parties in Ball & Chain Litigation Claim Victory

By John R. Byrne

The City of Miami has been dealing with quite a bit of litigation in recent years, including defending against claims that the City helped Commissioner Joe Carollo exact revenge against political opponents and critics. The latest lawsuit, filed by businessmen Bill Fuller and Martin Pinilla, named a bunch of City employees as defendants, including City Attorney Victoria Méndez and City Manager Arthur Noriega. 

Judge Moreno held a status conference on Friday, ultimately ordering the Plaintiffs to file an Amended Complaint. After the Court's order, both sides claimed victory to the press, with the City asserting that the Court suggested that "plaintiffs stick to the facts instead of making jury arguments in their complaint" and counsel for Fuller/Pinilla highlighting that Judge Moreno was "helpful and supportive" and had given him the opportunity to include more specific allegations against the City.

A lot more to come in this one. Herald covers it here.

DeSantis Beats Disney Retaliation Suit

By John R. Byrne

Governor DeSantis scored a victory yesterday in the Northern District of Florida. Judge Allen Winsor dismissed Disney's First Amendment retaliation lawsuit against the Governor and the directors of the newly constituted Central Florida Tourism Oversight Board.

Winsor held that Disney lacked standing to sue DeSantis, reasoning that Disney's asserted injury--lack of control over the special improvement district--is not "redressable" because the Court cannot give Disney that control back. Windsor wrote: "That injury would exist whether or not the Governor controlled the board, meaning an injunction precluding the Governor from influencing the board would not redress Disney’s asserted injury."

As to the Board, including its Vice Chair Charbel Barakat, Winsor held that Disney failed to allege a cognizable First Amendment retaliation claim. In short, where, as here, a statute was facially constitutional, it is irrelevant what motivated its passage. Because the Florida legislature has the power to determine the structure of Florida's special improvement districts, Winsor explained, it may exercise that power however it sees fit (retaliatory motives or not). The Court acknowledged exceptions for statutes involving race, religion, or those designed to regulate speech. But this wasn't such a statute.

The order, which Disney plans to appeal, is excerpted below.

De 114_Disney Dismissal Order by John Byrne on Scribd

Testimony Concludes in Racial Gerrymandering Case Brought against City of Miami

By John R. Byrne

Update on the racial gerrymandering case brought against the City of Miami. Trial testimony concluded yesterday. At issue are now "updated" voting maps, which have been challenged as unconstitutional. If the plaintiffs win, another map would be drawn.

Although a number of expert witnesses testified on statistical analyses and Miami's demographics, Judge Moore came back to statements made during public commission hearings. Judge Moore said that, in light of those statements, "it's really hard to get around the conclusion that race was" involved in the map drawing process.

Back in 2022, Commissioner Joe Carollo said the point of creating single-member districts was to ensure “there would be an African American sitting in this commission and there would be an Anglo” and “that there were three Hispanic districts.”

Commissioner Manolo Reyes also said “yes, we are gerrymandering to preserve those seats,” apparently referencing the five-person Commission. 

“The problem that I have been confronted with," Judge Moore said, is "not so much the statistical or circumstantial evidence that we’ve heard a lot about in the past two days. It was the direct evidence in those commission hearings that we’re well familiar with.”

The Herald covers it here.

No New Trial for Murdaugh

By John R. Byrne

Not SDFLA news or even news from the federal court world. But still worth covering. The judge in the Alex Murdaugh murder trial denied Murdaugh's request for a new trial. Murdaugh's team moved for a new trial, arguing that the Clerk of Court influenced the jury. The clerk, who wrote a book after the trial that was pulled because of plagiarism issues, apparently told jurors to watch Murdaugh closely when he testified.  

One juror testified that "She made it seem like he was already guilty." Asked whether this influenced her vote to find him guilty, she said "Yes ma'am."

A wild case gets wilder. I have to think an appellate court may see this issue differently. 

NPR covers it here.