The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent | Est. 2002

The Volokh Conspiracy
About The Volokh Conspiracy

Crime Victims Rights Act

The Victims' Families Seek a Plea Deadline in the Boeing Criminal Case

I argue that the Crime Victims' Rights Act entitles the victims' families to know whether Boeing is really planning to go to trial ... or whether it will stick with its guilty plea.

|

This afternoon, I filed a motion for the Boeing 737 MAX crashes victims' families whom I represent in the criminal case against Boeing. As readers of the blog will recall from my earlier posts (e.g., here, here, and here), Boeing previously agreed to plead guilty to the charge of conspiring to defraud the FAA in connection with the safety of its 737 MAX aircraft. Boeing's criminal conspiracy caused two plane crashes, killing 346 passengers and crew in what the federal district court judge handling the case (O'Connor, J.) has described as the "deadliest corporate crime in U.S. history." According to recent media reports, Boeing is now trying to walk back from its earlier plan to plead guilty. Judge O'Connor has set a trial date of June 23.

In today's motion, I argue that the Crime Victims' Rights Act (CVRA) entitles the victims' families to know in advance whether Boeing truly intends to go to trial.  Here's the introduction to my motion:

Naoise Connolly Ryan et al. (the "victims' families" or "families") … respectfully file this motion for the Court to set a deadline for any proposed plea agreement or other pre-trial resolution—e.g., an Ellis deadline. See United States v. Ellis, 547 F.2d 863, 864 (5th Cir. 1977) ("The [district] court [has] the prerogative to make and strictly enforce a deadline on plea bargaining.")). The families respectfully request an Ellis deadline of May 5, 2025. On the unique facts of this case, such a deadline is required to protect the victims' families' rights under the Crime Victim's Rights Act (CVRA) to be treated with fairness, to be free from unreasonably delayed proceedings, and to not be excluded from any trial. See 18 U.S.C. § 3771(a)(3), (7), (8). Grieving families need advance notice of whether this case is really going to trial so that they can begin the process of preparing to exercise their right to attend the trial. Also, an Ellis deadline will permit the Court to properly discharge its duty to review—and accept or reject—any proposed pre-trial resolution.

The motion raises an important issue about the treatment of crime victims (and, in death cases, their families) in the plea bargaining process. All too often, the parties in criminal cases drag out negotiations, with little regard for the consequences of the delays on the victims. In an effort to address this concern, Congress added a provision to the CVRA giving crime victims in federal cases the right to "proceedings free from unreasonable delay." As recounted in the motion, the CVRA's Senate sponsors explained that "too often … delays in criminal proceedings occur for the mere convenience of the parties and those delays reach beyond the time needed for defendant's due process or the Government's need to prepare. The result of such delays is that victims cannot begin to put the crime behind them and they continue to be victimized. It is not right to hold crime victims under the stress and pressure of future court proceedings merely because it is convenient for the parties …." 150 CONG. REC. S4260-01l) (April 22, 2024) (colloquy between Senators Kyl and Feinstein).

As I argue in today's motion, Boeing has had ample time—literally years—to resolve the conspiracy charge against it. Boeing first began negotiations over contemplated criminal charges in 2020, producing the illegally negotiated deferred plea agreement (DPA) that kicked off the case in early January 2021. After years of litigation about the effect of the victims' rights violation (including a published decision in the Fifth Circuit), Boeing violated its DPA obligations. Boeing's intransigence produced another round of plea negotiations, and the company finally presented to the district court a proposed plea agreement on July 24, 2024. The district court rejected Boeing's proposed plea on December 5, 2024. Since then, Boeing has requested multiple extensions of time for its legions of lawyers to do more wheeling and dealing.

As noted in the motion, in January of this year, new leaders took office in the Justice Department. But from what the victims' families can glean from media reports, the current delays stem not from inaction by the Justice Department but rather from Boeing contriving to "withdraw [from] an earlier agreement to plead guilty …." Dave Michaels & Emily Glazer, Boeing Is Pushing to Withdraw Guilty Plea Agreement, WALL ST. J., Mar. 24, 2025. Of course, Boeing possesses a constitutional right to force the Justice Department to prove its guilt at a trial—even though it has previously confessed to all of the elements of its deadly crime and even though, in other public settings, Boeing has professed sorrow for causing the deaths of hundreds of passengers and crew. But Boeing should not be free to extend the years-long proceedings any further than necessary. Boeing has yet to offer any real reason for additional delay. As of May 5, Boeing will have had a full five months to determine how it wants to proceed—after having already agreed to plead guilty in another proposed plea agreement.

As my motion concludes: "Today, 346 victims' families are left wondering whether they should plan to travel to Fort Worth to represent their lost loved ones at a trial to determine Boeing's guilt. They deserve to know whether Boeing really intends to go to trial—and they deserve that answer by May 5."

This issue now goes to Judge O'Connor for his decision.

The Major Separation of Powers Problems with J.E.B. v. Trump

Judge Boasberg is about to unleash a truly independent counsel on the Trump Administration, and the President himself, subject to none of the strictures that Alexia Morrison faced.

|

On Wednesday, I briefly wrote about Judge Boasberg's proposed criminal prosecution briefly. Here, I would like to highlight several of the significant separation of powers problems, many of which were raised in DOJ's latest mandamus petition to the D.C. Circuit. Specifically, this special prosecutor would truly be untethered, and would be burdened by none of the modest restrictions that Alexia Morrison confronted.

Let's recap how the Ethics in Government Act (EIGA) operated. First, the Attorney General had to determine if there was "reasonable grounds to believe that further investigation or prosecution is warranted." Second, when such a finding is made, the EIGA called for a special three-judge panel of the Court of Appeals for the D.C. Circuit to "appoint an appropriate independent counsel" and "define that independent counsel's 'prosecutorial jurisdiction.'" Third, the special division was authorized to expand the independent counsel's "prosecutorial jurisdiction." Fourth, the independent counsel could be removed by the Attorney General for "good cause." That removal would be subject to review by the Special Division.

After Congress let the Independent Counsel statute lapse, Attorney General Reno issued a series of regulations that created the new "special counsel" regime. This was the authority that Robert Mueller and Jack Smith invoked to investigate and prosecute President Trump. I've argued at some length why I think those regulations are unconstitutional, but I'll table those issues for now. At least under those regulations, the special counsel was subject to some supervision by the Attorney General, and could be removed for cause. Moreover, Mueller adhered to DOJ policy, and did not indict the President.

Now, let's consider the path that Judge Boasberg is going down.

First, it is not the Attorney General, or some politically accountable figure, deciding whether the investigation and prosecution of the executive branch should begin. It is an inferior court judge. Now, you might reply that Attorney General Bondi is in fact a possible party to the case, since she signed pleadings in Judge Boasberg's court. I think that argument presumes that there was a crime committed, but I take the point. The bigger problem is that Judge Boasberg is also a party to the case. His oral and written orders are the basis of the contempt proceedings. Is he a disinterested party to determine how others should have construed his orders? I think not. When I tell my kids to do something, and they  largely ignore me, I am not a neutral party to decide whether my instructions were clear enough. I continue to think that all judges who initiate contempt proceedings should immediately ask to have the case reassigned to avoid any possible conflict of interest. Really, Judge Boasberg should be a witness in such a proceeding, rather than the deciding authority.

Second, under the EIGA, the three-judge panel decided who the independent counsel should be. And under the special counsel regulations, the Attorney General made that decision. The decision of who to appoint is foundational. Why did Merrick Garland appoint a war crimes prosecutor like Jack Smith to go after Trump, but appointed a mild-mannered former U.S. Attorney like Robert Hur to investigate Biden? Both cases involved alleged purloining of government documents. Why didn't Garland appoint the same official to investigate Biden and Trump? I think the question answers itself.

And in any event, it doesn't much matter who is appointed. Many men of integrity have been sullied by serving as independent counsels or special counsels. Justice Scalia was right in Morrison: when a prosecutor has only a single target, with no restrictions or accountability, he will stop at nothing to get his guy. Remember, Ken Starr, a well-regarded former federal judge, embarked on a modest investigation into President Clinton's business dealings. That case exploded to an inquisition about President Clinton's sex life, ultimately leading to an impeachment and a near-indictment. Robert Mueller, a well regarded former FBI director, started to investigate Trump's removal of Comey, but the investigation spiraled into a never-ending drip-drip-drip about obstruction and corruption. Trump was nearly impeached and indicted over Muellergate.

We all know how these sorts of special prosecutions wind up. Does anyone doubt that the special prosecutor will want to interview President Trump himself? If Trump refuses, would the District Court hold him in criminal contempt? Even if there is no violation found of Judge Boasberg's order, there will be a never-ending series of allegations based on "obstruction," the most malleable crime in federal law. I doubt all of these proceedings will uncover much useful information that we don't already know. But the collateral costs will be massive.

Third, there is a benefit to having judges unconnected with the controversy decide who the special prosecutor ought to be. The three-judge panel, appointed by the Chief Justice, were neutral, and had no role in adjudicating the actual matter. By contrast, Judge Boasberg cannot separate himself from this conflict. Yet, he can still decide who will be the next Inspector Javert.  Relatedly,  there is some value in having a three-judge panel make these decisions, rather than a unilateral judge. As Judge Ho's concurrence from yesterday explains, there is a big difference between a single-member court and a multi-member court.

Every level of the judiciary risks losing its credibility if judges fail to live up to these principles. But appellate courts have at least one built-in check: No appellate judge can act alone. Appellate courts act only through multi-member panels. So appellate judges must convince their colleagues before they can exercise the judicial power of the United States. District court decisions, by contrast, are (with rare exception) made by just one judge. District judges are the only members of the judiciary who can exercise the judicial power of the United States without anyone's consent but their own. With unilateral power, there's unique danger that some district courts may get off track. So it's vital that district judges exercise their powers carefully and with integrity—and critical that appellate judges be ready to intervene when district courts refuse to stay in their lane.

District Court judges have almost unlimited authority over their docket. Circuit judges have to persuade their colleagues.

Fourth, the EIGA and Reno regulations at least provided some mechanism for removal. Chief Justice Rehnquist cited the possibility of removal as a basis to uphold the EIGA. But is there any way to remove Judge Boasberg's special prosecutor? I don't think so. Short of mandamus by the D.C. Circuit or the Supreme Court, the special prosecutor can follow Trump to the ends of the earth.

Fifth, Judge Boasberg would sub silentio resurrect the EIGA. The history of the independent counsel statute is well known.  Republicans and Democrats agreed that the Independent Counsel statute was a mistake, and let it lapse. But who knew, all along, that Rule 42 permits a single district court judge to unilaterally install a truly independent counsel, subject to none of the restrictions under the EIGA? I realize the Supreme Court ducked the Rule 42 issue in the Donzinger case. Justice Gorsuch, and Judge Menashi (2nd Circuit) in dissent, were clearly right. That prosecution involved a private citizen. This was not a case where a special prosecutor is opening an investigation into the executive branch itself.

Sixth, at least in the Donziger case, the special prosecutor could ostensibly assert the authority of the United States in parallel to DOJ. But in the Boasberg case, the special prosecution would be asserting the sovereign authority of the United States in conflict with the Department of Justice. I see an analogy to United States v. Nixon. I remain convinced that Nixon was not justiciable because it was an intra-executive branch dispute. There was a conflict between the special prosecutor and the President. The courts had no business resolving that conflict. Here, Judge Boasberg is about do something far more problematic. He will be seizing the prosecutorial authority of the executive branch, delegating it to a private citizen, who will then prosecute the executive branch, all in the absence of clear statutory authorization. This sort of move makes anything Judges Reed O'Connor or Matthew Kacsmaryk did look like child's play.

The government's brief states the issue well:

The Executive Branch must itself prosecute, or face a court-appointed private prosecutor who would apparently exercise core executive powers of prosecution. And that private prosecutor would exercise those powers outside the President's or the Attorney General's control, all in service of a prosecution that the Executive Branch opposes. District courts cannot outsource prosecutorial power to private citizens, insulate them from Executive Branch control, and then unleash them against the Executive Branch.

Seventh, where will the budget come from for this special prosecutor? DOJ certainly will not give a penny. The lawyer cannot keep an office at Main Justice. Does the court have the budget to pay for this crusade? Or will the court order the government to divert funds for the lawyer and his team? Then again, there may be a line of attorneys who will gladly work pro bono to nail Trump.

Update: Judge Menashi's dissent discusses the funding issue. In Donzinger, the special prosecutor was paid from the judiciary's budget. He observed, "Providing judiciary-funded prosecutors to the executive branch creates tension with Congress's power of the purse."

Eighth, please do not forget about "officer stuff." In the Florida special counsel litigation, Seth Barrett Tillman and I argued that the special counsel was not an officer, but was at most an employee, and as an employee lacked the "significant authority," per Buckley, to bring a criminal indictment. (Our 11th Circuit brief in the since-mooted case is a good place to start.) In the past, DOJ has argued that court-appointed special prosecutors were employees. Thus, in our view, the special prosecutors could not exercise the "significant authority" to investigate and prosecute the executive branch, and perhaps the President himself. Remember, a court-appointed prosecutor would not be subject to the DOJ opinion on whether the President could be indicted. Alternatively, the special prosecutor position would be appointed for only a single purpose. This position would lack duration because it is not continuous. Therefore, it cannot be an "officer" of any type. The current qui tam case before the Eleventh Circuit just became far more important. I will probably write about that case soon.

Even assuming Morrison v. Olson is valid, what Judge Boasberg is doing is unconstitutional. Indeed, he is taking all of these steps after the Supreme Court ruled he lacks jurisdiction! Putting aside the venue issue, the absence of a cause of action is a jurisdictional defect. (Seth and I addressed this issue in our Emoluments Clause briefing at p. 8-9.) The Chief Justice gave Judge Boasberg an easy jurisdictional out: issue a grumbling opinion, but dismiss the contempt proceedings. Instead, the court seeks to push forward.

Going forward, the airplane case should no longer be known as J.G.G. v. Trump. It is better captioned as J.E.B. v. Trump, as Judge James E. Boasberg ("Jeb" for short) is going down a personal path against the Trump Administration. He will be the judge, jury, and executioner about the fate of the executive branch. Hell hath no fury like a scorned inferior court judge.

We are treading down a very dangerous path. I fear the judiciary will suffer the same fate of Ken Starr, Robert Mueller, and Jack Smith. None of this bodes well for the separation of powers.

The D.C. Circuit must intervene here. I know it was fashionable to dunk on the Fifth Circuit as this rogue right-wing court, but in candor, that court was never quite that conservative. There are many moderate members who can tip the en banc vote. The D.C. Circuit, by contrast, has an over-whelming liberal majority, and will have that majority for a generation. If the D.C. Circuit upholds this action, I will see it as no different than the new liberal majority on the Wisconsin Supreme Court that upheld a 400-year line item veto. A special prosecutor is not the way to deal with Trump.

Tariffs

My New Lawfare Article on "The Constitutional Case Against Trump's Trade War"

It explains why the IEEPA "Liberation Day" tariffs are illegal and how our case against them relates to the other three cases challenging Trup's tariffs.

|

Today, Lawfare published my article "The Constitutional Case Against Trump's Trade War." Here is an excerpt:

President Trump's massive "Liberation Day" tariffs, imposed April 2, on goods imported from almost every country in the world are likely to do grave damage to the U.S. and world economies, impose an enormous tax increase on Americans (an average of some $1,300 per household per year), and poison relations with America's allies. They are based in part on a completely nonsensical "reciprocity" formula, compounded by mathematical errors.

The tariffs are also a blatantly illegal usurpation of legislative power. That is why, on Monday, the Liberty Justice Center and I filed a lawsuit challenging the tariffs in court on behalf of five American import businesses severely harmed by them. We have a strong case.

Article I of the Constitution clearly gives Congress, not the president, the power to regulate "commerce with foreign nations" and to "lay and collect Taxes, Duties, Imposts and Excises." The administration claims the tariffs are authorized by the International Emergency Economic Powers Act of 1977 (IEEPA). IEEPA gives the president authority to impose various types of sanctions in situations when there is "any unusual and extraordinary threat, which has its source in whole or substantial part outside the United States, to the national security, foreign policy, or economy of the United States, if the President declares a national emergency with respect to such threat." But, as Peter Harrell points out, it doesn't mention tariffs, and no previous president has used IEEPA to impose them.

Even if tariffs are permitted, they can be used only to address an "emergency" that amounts to an "unusual and extraordinary threat." The supposed "emergency" here is the existence of trade deficits with various countries. An "emergency" is a sudden crisis. As a House of Representatives report leading to the enactment of IEEPA put it, the legislation is based on "a recognition that emergencies are by their nature rare and brief, and are not to be equated with normal ongoing problems." The report adds that "[a] national emergency should be declared and emergency authorities employed only with respect to a specific set of circumstances which constitute a real emergency, and for no other purpose…. A national emergency should not be a normal state of affairs."

There is nothing new about bilateral trade deficits. They have existed for decades and are in fact a "normal state of affairs." Economists across the political spectrum recognize they are not actually a danger at all. America's bilateral trade deficit with Canada or the European Union is no more a threat than is my trade deficit with my local supermarket: I buy a lot from them; they virtually never buy anything from me….

Even if courts defer to the president's claim that trade deficits are an "emergency," they still aren't an "unusual and extraordinary threat." There is nothing unusual and extraordinary about them (again, they have existed for many years), nor do they pose any genuine danger….

If there is any ambiguity over the meaning of IEEPA, courts should resolve it against the government by applying the major questions doctrine. Since 2021, the Supreme Court has invalidated several presidential initiatives under that rule, which requires Congress to "speak clearly" when authorizing the executive to make "decisions of vast economic and political significance." If the law isn't clear, courts must reject the executive's assertion of power…

If Trump's sweeping use of IEEPA to start the biggest trade war in a century is not a major question, it is hard to say what is. The magnitude of the Liberation Day tariffs exceeds that of most of the other measures declared major questions by the Supreme Court….

Trump's IEEPA tariffs also violate constitutional limits on delegation of congressional power to the executive. While there is much disagreement on where to draw the line, there must be at least some limit to Congress's ability to give away its lawmaking powers. Congress cannot just simply pass a law giving the president the power to establish any tariffs he wants, without limitation…

The enormous scale of Trump's power grab runs afoul of even the most modest nondelegation constraints. If long-standing and perfectly normal bilateral trade deficits qualify as an "emergency" and an "unusual and extraordinary threat," the same can be said of virtually anything. The president would have the power to impose tariffs of any magnitude on any country for any reason, any time he wants. If that does not violate constitutional constraints on delegation, nothing does. That might be acceptable to those who believe there are no limits on delegation whatsoever. But both liberal and conservative Supreme Court justices have rejected that extreme view.

The article also explains how our case relates to the other three lawsuits challenging Trump's IEEPA tariffs, filed by the state of California, the New Civil Liberties Alliance, and members of the Blackfeet Nation Native American tribe.

"A Recipe for District Judge Supremacy"

Judge Ho addresses Trump v. J.G.G.

|

Today, a divided panel of the Fifth Circuit granted a writ of mandamus in a death penalty case. In this case, the district court improperly exercised jurisdiction over a clearly moot case, and then refused to dismiss the case. Mandamus seems plainly warranted.

Judge Ho wrote a concurrence that speaks directly to controversies of the day:

Our dissenting colleague asks: What's the rush? Even assuming that the district court erred, the dissent contends that there's no need for immediate relief—just let things play out through "[t]he typical appellate process." Post, at _ (Haynes, J., dissenting).

But that's cold comfort to the millions of voters who took the time to participate in the democratic process, only to see their legitimate efforts unlawfully undone by a single district judge.

If a district judge abuses the legal process in a hurried effort to thwart the lawful political choices of the electorate, appellate courts are well within their right to intervene and grant emergency relief.

The Supreme Court did just that last week in Trump v. J.G.G., _ U.S. _ (2025). There (as here), a district court presumed to seize control over a case of profound public interest that it had no lawful business deciding, because it belonged in another court. So the Supreme Court intervened and took the case away from the district court. See id. at _ ("Challenges to removal under the [Alien Enemies Act] . . . must be brought in habeas. . . . [J]urisdiction [in habeas cases] lies in only one district: the district of confinement. The detainees are confined in Texas, so venue is improper in the District of Columbia.") (cleaned up).

Like our dissenting colleague here, the dissenting Justices in J.G.G. urged delay. The dissent agreed with the majority that the only thing at stake was deciding which district court had the authority to decide the case. See id. at _ (Sotomayor, J., dissenting) (noting that the dispute merely concerned "which procedural vehicle is best situated for the Plaintiffs' injunctive and declaratory claims"). But the dissent maintained that there was no need for appellate courts to "rush" in and "decide the issue now"—just wait for an appeal in the "ordinary course." Id. at _ (Sotomayor, J., dissenting).

The Supreme Court rejected the dissent's plea for delay. The majority understood that waiting for an appeal in the "ordinary course" would inadequately protect the government from the indignity of litigating in the wrong proceeding—not to mention unduly delay the expressed will of the people. As the Court put it, "[w]e see no benefit in such wasteful delay." Id. at _.

I most certainly concur. When a district judge acts hastily, yet appellate courts are told not to "rush in," that's not a plea for judicial sobriety—it's a recipe for district judge supremacy.

I made similar points in a post last month, titled Article III Inverted: The Supreme Court Surrenders to Inferior Court Supremacy.

Yet, in recent weeks, there has been a change: District Court judges are in charge. In case after case, federal district court judges have issued a series of non-appealable orders, whether styled as "administrative stays" or temporary restraining orders. Courts of appeals have then declined to disturb those rulings, finding that TROs can only be challenged through mandamus, and administrative stays are unappealable altogether. At that point, the federal government is forced to run to the Supreme Court seeking emergency relief. And what has the Supreme Court done? They have kicked the issue back down to the lower court, hoping that someone else makes the tough decisions. Who is running the show here?

Jack Goldsmith calls these tactics "temporizing." That is, the Supreme Court is simply trying to bide its time to find other ways of resolving the issues. That may be right in the short run, but I think we are witnessing an inversion of Article III. The Supreme Court is no longer Supreme. Rather, the federal government is now subject to inferior court supremacy. Lower court judges are now confident they can issue any order they wish against the executive branch, and the Supreme Court will not stop them. This is the judiciary run amok.

It is often joked that being a District Court Judge is the closest thing to being a god. I think federal judges in the beltway should read Judge Ho's concurrence a few times.

About The "Incipient Crisis" In Little Rock

The aftermath of President Eisenhower sending in federal troops is not a model of success.

|

Today the Fourth Circuit denied the government's motion for an emergency stay in Garcia v. Noem. Here, I will not focus on the merits of the appeal. Rather, I want to highlight how Judge Wilkinson's opinion invokes a defining moment from the Civil Rights Era:

It is in this atmosphere that we are reminded of President Eisenhower's sage example. Putting his "personal opinions" aside, President Eisenhower honored his "inescapable" duty to enforce the Supreme Court's decision in Brown v. Board of Education II to desegregate schools "with all deliberate speed." Address by the President of the United States, Delivered from his Office at the White House 1-2 (Sept. 24, 1957); 349 U.S. 294, 301 (1955). This great man expressed his unflagging belief that "[t]he very basis of our individual rights and freedoms is the certainty that the President and the Executive Branch of Government will support and [e]nsure the carrying out of the decisions of the Federal Courts." Id. at 3. Indeed, in our late Executive's own words, "[u]nless the President did so, anarchy would result." Id. . . .

It is, as we have noted, all too possible to see in this case an incipient crisis, but it may present an opportunity as well. We yet cling to the hope that it is not naïve to believe our good brethren in the Executive Branch perceive the rule of law as vital to the American ethos. This case presents their unique chance to vindicate that value and to summon the best that is within us while there is still time.

Judge Wilkinson treats the story of the Little Rock 9 in a very John-Roberts fashion: it tells a beautiful story about judicial supremacy where everyone did what what the federal court said, and everything worked out for the best. The history tells a different story.

The general story of the Little Rock Nine is known, but the legal posture is not. Randy and I discuss this history in the essay on Cooper v. Aaron in 100 Cases. Please watch the video to catch up. Eisenhower's speech is in there.

For those who do not like to watch videos, you can read the summary, though I think the video footage is compelling:

In 1955, the Little Rock, Arkansas, school board approved a plan for gradual integration. However, the so- called "massive resistance" spread to Arkansas. Citizens approved an amendment to the state constitution that opposed Brown and desegregation. Based on that amendment, a state court judge issued an injunction against members of the Little Rock school board. They were ordered to stop the implementation of the federal court's integration plan at Central High School.

Read More

Fourth Circuit Declines Government's Request to Stay District Court Order in Abrego Garcia Case

|

From today's Fourth Circuit opinion in Abrego Garcia v. Noem, written by Judge J. Harvie Wilkinson and joined by Judges Robert King and Stephanie Thacker:

Upon review of the government's motion, the court denies the motion for an emergency stay pending appeal and for a writ of mandamus. The relief the government is requesting is both extraordinary and premature. While we fully respect the Executive's robust assertion of its Article II powers, we shall not micromanage the efforts of a fine district judge attempting to implement the Supreme Court's recent decision.

It is difficult in some cases to get to the very heart of the matter. But in this case, it is not hard at all. The government is asserting a right to stash away residents of this country in foreign prisons without the semblance of due process that is the foundation of our constitutional order. Further, it claims in essence that because it has rid itself of custody that there is nothing that can be done.

This should be shocking not only to judges, but to the intuitive sense of liberty that Americans far removed from courthouses still hold dear.

Read More

SCOTUS Sets Special May Sitting In Birthright Citizenship Case

The last May case was argued by Brett Kavanaugh.

|

Today the Supreme Court set oral argument for the birthright citizenship cases on May 15:

Consideration of the application (24A884) for partial stay presented to The Chief Justice and by him referred to the Court is deferred pending oral argument. Consideration of the application (24A885) for partial stay presented to Justice Kagan and by her referred to the Court is deferred pending oral argument. Consideration of the application (24A886) for partial stay presented to Justice Jackson and by her referred to the Court is deferred pending oral argument. The applications are consolidated, and a total of one hour is allotted for oral argument. The applications are set for oral argument at 10 a.m. on Thursday, May 15, 2025.

May and June oral arguments are quite rare. (I do not count regularly-scheduled cases from the April sitting that spill into May.) In 2017, I tracked three such cases in recent decades:

1. Raines v. Byrd (1996) involved the Line Item Veto Act. This bill had a direct appeal from D.D.C. D.D.C resolved the case on April 10, and the Court noted probably jurisdiction two weeks later on April 23. It was argued on May 27, and decided on June 26.

2. Felker v. Turpin (1996) involved the constitutionality of the newly-enacted Antiterrorism and Effective Death Penalty Act (AEDPA). The 11th Circuit denied a stay of execution for Felker on May 2. That day, Felker filed an application for a stay of execution with Circuit Justice Kennedy. On May 3, it was referred to the whole Court and granted. The briefs were to be filed two weeks later on May 17 , reply briefs on May 28. Oral arguments were set for June 3, 1996.

Justice Stevens, joined by Justices Souter, Ginsburg, and Breyer, dissented, noting that this case shouldn't be so rushed:

In my opinion, it is both unnecessary and profoundly unwise for the Court to order expedited briefing of the important questions raised by the petition for certiorari and application for a writ of habeas corpus. Even if the majority were right that this petition squarely presents substantial constitutional questions about the power of Congress to limit this Court's jurisdiction, our consideration of them surely should be undertaken with the utmost deliberation, rather than unseemly haste. Accordingly, I respectfully dissent from the entry of the foregoing order.

The case was resolved on June 28–two days after Raines v. Byrd. (That was a busy June!).

3. Swidler & Berlin v. U.S. (1998) involved the Independent Counsel's request for handwritten notes from Vince Foster's attorney. The D.C. Circuit found that the privilege does not survive death. Certiorari was filed on December 31, 1997, and cert was granted on March 30, 1998. The case was set for expedited arguments on June 8 (by Brett Kavanaugh), and decided on June 25. The New York Times reported that "the High Court agreed to hear the case unusually quickly."

And who argued Swidler & Berlin? Brett Kavanaugh, who was working for the Independent Counsel.

Update: A colleague reminded me that the Court heard oral arguments in May 2020 during the "remote" Zoom hearings. The last such case, Chiafalo v. Washington, was argued on May 13.

Free Speech

Pseudonymity Allowed (for Now) in Lawsuit Against Palestinian Student Groups

But one of the pro-pseudonymity decisions on which the court relies (which also involved a lawsuit alleging anti-Semitic behavior) was actually reversed two weeks ago.

|

From today's decision by Judge Jeannette Vargas (S.D.N.Y.) in Haggai v. Kiswani:

Plaintiffs … filed this suit against Nerdeen Kiswani, individually and as the representative of Within Our Lifetime-United For Palestine, Maryam Alwan, individually and as the representative of Columbia Students For Justice In Palestine, Cameron Jones, individually and as the representative of Columbia-Barnard Jewish Voice For Peace, and Mahmoud Khalil, individually and as the representative of Columbia University Apartheid Divest, Columbia Students For Justice In Palestine, and Columbia-Barnard Jewish Voice For Peace, ("Defendants") under the Antiterrorism Act ("ATA"), 18 U.S.C. § 2333(d), and the Alien Tort Statute ("ATS"), 28 U.S.C. § 1350….

Plaintiffs in this action are alleged victims of Hamas, a terrorist organization with the goal of destroying the State of Israel. The catalyst of this action are the terrorist attacks of October 7, 2023, when Hamas led an incursion into Southern Israel and murdered more than 1,200 people. In addition to the lives lost, Hamas took more than 200 hostages back to Gaza. In this instant action, Plaintiffs allege that Defendants in this case "are Hamas' propaganda arm in New York City and on the Columbia University campus." Plaintiffs further allege that Defendants' acts done "in furtherance of their goals to assist Hamas have included terrorizing and assaulting Jewish students, unlawfully taking over and damaging public and university property on Columbia's campus, and physically assaulting Columbia University employees." …

Under Rule 10(a) of the Federal Rules of Civil Procedure, a "complaint must name all the parties." This requirement "serves the vital purpose of facilitating public scrutiny of judicial proceedings and therefore cannot be set aside lightly." A district court has discretion to grant an exception to the "general requirement of disclosure of the names of parties" to allow a party to proceed under a pseudonym…. "[P]seudonyms are the exception and not the rule, and in order to receive the protections of anonymity, a party must make a case rebutting that presumption." …

Read More

Tariffs

Bloomberg and Forbes Podcast Interviews About our Lawsuit Challenging Trump's "Liberation Day" Tariffs

The Liberty Justice Center and I filed the case on Monday.

|

Bloomberg Law and Forbes recently posted podcasts in which I was interviewed about the lawsuit the Liberty Justice Center and I filed on Monday on behalf of five US businesses harmed by Trump's "Liberation Day" tariffs. I think the Bloomberg interview may be my best one about this topic. It is available here (the interview with me runs from about 1:00 to 13:15).

And here is the Forbes podcast:

 I should note I was not the one who came up with the title of the Forbes podcast. I'm not "the lawyer behind the lawsuit," but just one part of a team. And we covered much more in the inteview than just timelines.

Tariffs

Cato Institute Podcast on Our Lawsuit Challenging Trump's "Liberation Day" Tariffs

I was interviewed by Caleb Brown of Cato.

|

The Cato Institute just posted this podcast in which I was interviewed about the lawsuit the Liberty Justice Center and I filed on Monday on behalf of five US businesses harmed by Trump's "Liberation Day" tariffs.

The podcast was recorded before we filed the suit. Nonetheless, I think I was able to give a helpful overview of the issues.  Here it is:

Tariffs

California Files Lawsuit Against Trump's Tariffs

They challenge both the "Liberation Day" IEEPA tariffs, and earlier ones imposed on Canada, Mexico and China.

|

NA

Today, the state of California filed a lawsuit challenging Donald Trump's massive new tariffs. The complaint is available here. The arguments California makes are in many ways similar to those advanced in the case the Liberty Justice Center and I filed on Monday on behalf of five US businesses harmed by the tariffs.

Like us California argues that the International Emergency Economic Powers Act of 1977 (IEEPA) doesn't authorize tariffs at all, and that Trump administration's position runs afoul of the "major questions doctrine" and constitutional nondelegation rules. Interestingly, California's complaint doesn't use the terms "major questions" and "nondelegation," both of which have negative connotations for some on the left. But they cite the relevant precedents and make the relevant points. Personally, I think the substance of the arguments matters more than terminology.

Our complaint, however, makes some additional points that the California one doesn't cover, such as that the bilateral trade deficits that supposedly justify the "Liberation Day" tariffs are not an  "unusual and extraordinary threat" (which IEEPA says must be present to allow invocation of the law).

On the other hand, California's suit goes beyond ours in challenging not only the "Liberation Day" tariffs (imposed on almost every country in the world), but also the earlier IEEPA tariffs imposed on Canada, Mexico, and China, justified by the supposed threat of fentanyl. I argued that these tariffs are also illegal in a February post where I first developed the idea of challenging IEEPA tariffs under the nondelegation and major questions doctrines.

California's case is therefore broader than our case, or the other two lawsuits challenging Trump's IEEPA tariffs: that brought by the New Civil Liberties Alliance (challenging tariffs against China), and one brought by members of the Blackfeet Nation Native American tribe (challenging tariffs against Canada).

One issue likely to come up in the California lawsuit is standing, which require plaintiffs who bring a case to have suffered a "particularized harm" caused by the action they are challenging.  Our clients have an obvious case for standing because they directly import goods subject to the tariffs, and therefore must pay those tariffs themselves. The California complaint indicates that the state government imports many goods from abroad. If they also directly have to pay tariffs, they can qualify for standing on the same basis as our clients. If not, they might still be able to get standing based on more indirect harms (e.g. - the state having to pay higher prices for goods purchased from contractors), or based on the "special solicitude" on standing extended to state governments in the Supreme Court's ruling in Massachusetts v. EPA (2007).

But indirect harms are a more debatable basis for standing than direct ones (though I personally believe they should qualify). And in recent years, the Supreme Court has often essentially ignored "special solicitude" arguments.  Nonetheless, I hope and expect that California will get standing one way or another.

I have my differences with the California state government on various issues. But I supported their strong stance on immigration "sanctuary" issues during the first Trump Administration, and I am pleased to welcome them to this fight. People across the political spectrum - including the conservatives at the NCLA, liberals like the California state government, and libertarians like myself -  should be able to agree that the Trump IEEPA tariffs are both illegal and extremely harmful.

The Special Counsel Is Dead. Long Live The Special Counsel.

Judge Boasberg will likely anoint a special prosecutor to investigate the Trump Administration, bring us back to Muellergate.

|

Last week, predicted that the next phase in Trump litigation will involve contempt proceedings:

The third phase, I predict, will be hostile contempt proceedings where district court judges try to reassert their authority over the executive branch, even in the face of SCOTUS reversals. We may not have a special counsel like Robert Mueller to launch inquisitions against the Trump Administration, but district court judges in D.C. and Maryland will gladly assume that role. Soon enough, we will be talking about "obstruction of justice" all over again. We might spend the next four years inquiring about what Trump knew about the airplanes. This very well might form the basis of future articles of impeachment. It is 2017 all over again.

And so it has come to pass. Judge Boasberg found that the Trump Administration likely engaged in criminal contempt. There will be a hearing that will likely make the judge even more angry. And he will find that criminal contempt is appropriate.

Federal Rule of Criminal Procedure 42(c)(2) provides:

(2) Appointing a Prosecutor. The court must request that the contempt be prosecuted by an attorney for the government, unless the interest of justice requires the appointment of another attorney. If the government declines the request, the court must appoint another attorney to prosecute the contempt.

The United States Attorney for the District of Columbia will not prosecute the case, and may ultimately become a fact witness. So Judge Boabserg will anoint a new special prosecutor to investigate the Trump Administration. I hear Jack Smith has some free time on his hands?

We are back in the first Trump Administration with Robert Mueller. Anything that Trump or anyone else does will be considered "obstruction" which could trigger further indictments. The special prosecutor will try to interview the President himself. But unlike with Mueller, Trump would have no power to effect the removal of the special prosecutor. This will become the basis of some future impeachment hearing.

I agree with Justice Gorsuch in the Donziger case. The court appointed special prosecutor violates the separation of powers. Get ready for more "officer stuff"!

More

Recent Volokh Posts

1

Impeach Pete Hegseth

2

Today in Supreme Court History: November 8, 1994

3

Open Thread

4

Court Allows Discovery as to Vindictive Prosecution Defense by Smartmatic's Parent Company

5

Prosecution Over Threat to American Federation of Teachers President Randi Weingarten Can Go Forward

6

Arkansas Bar Official Allegedly Transferred Points from Some Bar Examinees to Others

7

Attorney Fee Award Cut from $100K to $50K, Partly as Sanction for Hallucinated Citations

8

November 7 as Victims of Communism Day - 2026

9

Today in Supreme Court History: November 7, 1922

10

Open Thread

The All-Argentina Issue is Here

New from Reason: a look into what Javier Milei has accomplished and what it will take to make the most of Argentina’s window for real change. Out now for subscribers.

Subscribe & Start Reading Learn More