The Volokh Conspiracy

I have now had a chance to read the entire 45-page indictment in United States v. Donald J. Trump. Much of this information has been published in drips and drabs over the past two years. But reading through the entire chronology, from start to finish, was a very different experience.

Here, I would like to highlight what Special Counsel Jack Smith left out.

The most significant omission was that Trump was not indicted for insurrection, 18 U.S.C. § 2383. This decision was not particularly surprising, since none of the January 6 defendants have been charged with insurrection. Stuart Rhodes and the Proud Boys were convicted of seditious conspiracy. Federal prosecutions for insurrection are extremely rare, and there were many open questions about how to obtain a conviction.

The decision not to seek an indictment for insurrection has several immediate consequences. First, the punishment for violating Section 2383 includes being "incapable of holding any office under the United States." Seth Barrett Tillman and I wrote in early 2020 that even if Trump were convicted of violating this statute, he could not be disqualified from serving a second term as President. Now that Smith has not indicted Trump for violating this statute, we will not need to decide the scope of Section 2383.

Second, if Smith had indicted Trump for violating Section 2383, he would have had to lay out in a systematic fashion why Trump's conduct amounted to insurrection. Regardless of whether Trump was convicted of violating that statute, state election boards could have relied on that indictment as the predicate to disqualify Trump. In other words, there would have been a common nucleus of operating facts for a Section 3 claim against Trump. Smith's indictment could have been copied-and-pasted nationwide. But we do not have those facts. Indeed, based on my quick read, the word "insurrection" appears nowhere in the statute.

Third, what lessons should we draw from the fact that Smith did not indict Trump for insurrection? In some legal circles, advocates contend that it is so obvious that Trump committed insurrection. Yet, the special counsel, after studying the issue for months, opted not to bring that charge. Why? Perhaps Smith determined that he could not prove beyond a reasonable doubt that Trump engaged in insurrection. Or maybe Smith determined there were considerable legal questions about how to obtain such a conviction--most critically, was there an actual insurrection? (Yes, for the Supreme Court to knock Trump off the ballot, you need five votes to say that there was an insurrection as a matter of law--good luck with that!) Perhaps Smith engaged in a political calculus, and determined that he didn't need to wade into murky insurrection waters. There were so many other ways to obtain a conviction. Indeed, I speculated that Smith's decision to avoid "distracting fights" would counsel against bringing a Section 2383 charge. Ultimately, we don't know why Smith brought the charges he did. Everyone who is gung-ho on disqualifying Trump for insurrection should hesitate. But they won't, of course. They'll say that a criminal prosecution, with the full panoply of due process, requires a much higher burden of proof than a civil disqualification proceeding. Section 3 is the new Emoluments Clause.

Now, let's flash back to January 13, 2021. The House of Representatives adopted one article of impeachment:"incitement of insurrection." The precise contours were left deliberately vague, but it embraced both claims of insurrection and incitement. Once again, the fact that Smith chose not to indict Trump for insurrection casts at least some doubt on the decision to impeach Trump for insurrection. Of course, the counter argument is that the burden of proof with an impeachment is lower, there are no due process protections, and impeachment can be a political process. We hashed out all those arguments in 2021. But would about incitement? Why didn't Smith charge Trump with inciting violence?

If you read through the indictment, there are many allegations that seem perfectly suited for an incitement charge. Here is a sampling:

When that failed, the Defendant attempted to use a crowd of supporters that he had gathered in Washington, D.C., to pressure the Vice President to fraudulently alter the election results.

On December 19, 2020, after cultivating widespread anger and resentment for weeks with his knowingly false claims of election fraud, the Defendant urged his supporters to travel to Washington on the day of the certification proceeding, tweeting, "Big protest in D.C. on January 6th. Be there, will be wild!" Throughout late December, he repeatedly urged his supporters to come to Washington for January 6.

Within hours of the conversation [on January 1], the Defendant reminded his supporters to meet in Washington before the certification proceeding, tweeting, "The BIG Protest Rally in Washington, D.C., will take place at 11.00 A.M. on January 6th. Locational details to follow. StopTheSteal!"

That same day [January 5], the Defendant encouraged supporters to travel to Washington on January 6, and he set the false expectation that the Vice President had the authority to and might use his ceremonial role at the certification proceeding to reverse the election outcome in the Defendant's favor, including issuing the following Tweet . . . .

On January 6, starting in the early morning hours, the Defendant again turned to knowingly false statements aimed at pressuring the Vice President to fraudulently alter the election outcome, and raised publicly the false expectation that the President might do so . . . .

[On January 6 at 11:56 a.m.] The Defendant repeated false claims of election fraud, gave false hope that the Vice President might change the election outcome, and directed the crowd in front of him to go to the Capitol as a means to obstruct the certification and pressure the Vice President to obstruct the certification.

Finally, after exhorting that "we fight. We fight like hell. And if you don't fight like hell, you're not going to have a country anymore," the Defendant directed the people in front of him to head to the Capitol, suggested he was going with them, and told them to give Members of Congress "the kind of pride and boldness that they need to take back our country."

During and after the Defendant's remarks, thousand of people marched toward the Capitol.

Judge Mehta, in a detailed opinion, refused to dismiss the civil incitement lawsuits against Trump. Mehta also dealt with all of the First Amendment concerns that I (and others) raised during Trump's impeachment trial. Right or wrong, Smith could have relied on Mehta's First Amendment analysis to indict Trump for criminal incitement. But Smith didn't? Why? Maybe he thought the First Amendment analysis would not hold up on appeal to the Supreme Court. Maybe he thought that he may not be able to obtain a criminal conviction with proof beyond a reasonable doubt. Or Smith worried that criminalizing what was, to some at least, a political rally, was too risky. I'll pose a question I raised earlier: if the special counsel declined to bring an incitement charge, was this the right charge to bring in a court of impeachment? Same caveats as earlier.

Finally, six facts in particular were left out: the names of six un-indicted co-conspirators. The Washington Post speculates that Rudy Giuliani was #1, John Eastman was #2, Sidney Powell was #3, Jeff Clark was #4, Kenneth Chesebro was #5, and #6 remains unknown. Each of these five (six) individuals faces considerable legal exposure, and may still be indicted. We will see if they testify against Trump to avoid prosecution. There are also a number of lawyers mentioned throughout the report that worked in the Department of Justice and in Trump's orbit that have exposure. Smith is not done here.

I'll have much more to say about the prosecution in due course. These are only my preliminary thoughts.

Update: In the New York Times, Ryan Goodman and Andrew Weissmann opine on Smith not bringing an insurrection charge:

Although the Jan. 6 select committee referred Mr. Trump for investigation for inciting an insurrection, Mr. Smith wisely demurred. The Justice Department has not charged that offense in any other case involving the attack on the Capitol, and insurrection has not been charged since the 19th century. Of course, no president has engaged in it since then — but since no one else has been charged with that crime relating to Jan. 6, it likely would have been an issue. And since the penalty for the insurrection offense is that the defendant would not be eligible to hold federal office, it would have fueled a claim of weaponizing the Justice Department to defeat a political rival.

Aaron Sibarium reports for the Free Beacon:

"All applicants will be required to submit a short video, no longer than 90 seconds, addressing a question chosen at random," the school's admissions page said Monday morning. "The video statement will allow applicants to provide the Admissions Committee with additional insight into their personal strengths."

Critics slammed the move as a thinly veiled attempt to defy the Supreme Court's ruling and practice affirmative action by other means, using appearance as a proxy for race. Columbia's decision "has all the hallmarks of a willful effort to evade the requirements of Title VI of the Civil Rights Act," said Edward Blum, the founder of Students for Fair Admissions, the plaintiffs in the June case that outlawed affirmative action. "What is a 90-second video supposed to legitimately convey that a written statement could not?"

Reached for comment by the Washington Free Beacon, however, a spokesman for the law school said it had all been a misunderstanding and, by 6:00 PM Monday evening, Columbia had scrubbed the language from its website.

I believe this just happened today, since argument is next week (Aug. 10); the panel is Judges Edith Brown Clement, Jennifer Walker Elrod, and Don Willett. Recall that this is the expedited appeal of the July 4 injunction that barred various federal departments from encouraging social media platforms to delete certain content.

As a general rule, Supreme Court Justices speak through their opinions. From time to time, Justices will be "interviewed"by friendly interlocutors during public events. The screened questions are usually softballs, and even then, the Justices tend to avoid saying anything newsworthy. In recent years, perhaps the biggest outlier was Justice Ginsburg. In 2016, she gave an interview with Adam Liptak of the New York Times. RBG made critical comments about then-candidate Trump. Ultimately Ginsburg sort-of apologized, but still faced calls to recuse in certain Trump-related cases. She would not recuse. RBG should have been grateful the Supreme Court Ethics, Recusal, and Transparency Act (SCRET) was not in effect during this final years on the Court.

Speaking of the SCRET Act, on Friday, the Wall Street Journal published a "weekend interview" with Justice Alito. The Justice spoke with the Journal in early July. In April, Alito also spoke with the Journal for "four hours in two wide-ranging sessions" in his chambers. (I wrote about that interview here.) Perhaps the most significant aspect of the interview is that it happened at all. On the current Court, Justice Alito is the member most likely to talk to the press. And he had a lot to say--including about the SCRET Act, and his colleagues. Here are thirteen highlights.

First, Justice Alito repeated his refrain from April that the "bar" is not defending the Court against attack--indeed legal elites are leading the calls that the Court is "illegitimate."

"I marvel at all the nonsense that has been written about me in the last year," Justice Samuel Alito says during an early July interview at the Journal's New York offices. In the face of a political onslaught, he observes, "the traditional idea about how judges and justices should behave is they should be mute" and leave it to others, especially "the organized bar," to defend them. "But that's just not happening. And so at a certain point I've said to myself, nobody else is going to do this, so I have to defend myself."

My post in April was titled, "Justice Alito Defends The Supreme Court In Ways Chief Justice Roberts Cannot." I bet the Chief Justice's head exploded when he read this interview. But Justice Alito is right. The Chief only speaks out when it serves his interests Again, whenever the Chief Justice speaks of the Court's "legitimacy," he is actually speaking about himself--the man cannot separate himself from the Court. No Justice has done more to undermine the Court as a institution that follows law in a dispassionate fashion that Roberts himself. But so long as we avoid 5-4 conservative-liberal splits, he is happy, no matter what the opinion says. (More on Roberts later.)

Second, Justice Alito observed that "'There are very serious differences'" in how the six conservative justices approach cases." Well that's for darn sure.

Justice Thomas does not place much weight on precedent:

Justice Alito says. The simplest difference involves respect for precedent: Justice Thomas "gives less weight to stare decisis than a lot of other justices." It is, "in its way, a virtue of his jurisprudence," Justice Alito says. "He sticks to his guns." . . . The disadvantage of this approach, Justice Alito says, "is that you drop out of the conversation, and . . . lose your ability to help to shape what comes next in the application of that rule."

Justice Alito is right about this much: it is hard for Justice Thomas to play the game if he insists on eschewing precedent. Then again, is the game worth playing if you have to follow made-up law. Stare decisis does not mean inexorably stare at decisions from the Warren Court.

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As regular readers know, I wrote an article, The Fourth Amendment Limits of Internet Content Preservation, on what I see as significant Fourth Amendment limits on the government's power to order Internet providers to run off copies of people's online accounts and save them for possible later government access.

Here's how the practice works.  When agents think a person might have some connection to a crime, federal agents order Internet providers to run off a government copy of the entire account and to hold it for the government away from the account holder. The point is to make sure suspects can't delete their files and thwart a possible investigation down the road.  A federal statute, 18 U.S.C. § 2703(f), requires Internet providers to comply. In recent years, the statute has been relied on with extraordinary frequency; in 2019, about 1 in every 820 adults had their account copied for possible government use.  This all goes on in total secrecy. Under order of federal law, Internet providers create and hold government copies, for the government, and in most cases no one tells the user.  The government still needs a warrant to ultimately access the copy, but preservation allows the government to gain access to a stored copy that they would not have otherwise—a copy that may have records that the user might have otherwise deleted.

My article, which I have turned into a model motion to suppress for defense attorneys to file, argues that there are Fourth Amendment limits on this process.  A private actor who does the government's bidding under penalty of law is a state actor, and running off a copy and holding it for the government, so the user cannot control it, is a Fourth Amendment seizure.  I argue that this seizure has to be justified as reasonable under the Fourth Amendment, which will usually require probable cause or at least reasonable suspicion.  But a common practice, in which every possible suspect's account can get copied and held for the government, "just in case," without particularized suspicion, is generally unconstitutional.  (There are then interesting questions of what the remedy is. A plausible remedy is that the government has to use the account copy that existed when they ultimately served the warrant to get the copy, not when they made the preservation request. But that's beyond today's post.)

A few motions have been filed based on my model motion, and the first opinion on the issue to just recently appeared on Westlaw.  The motion to suppress in this case wasn't the exact model motion I drafted, but it had the basic gist of it in a condensed form.

Here's the opinion, from Magistrate Judge Daniel J. Albregts of the U.S District Court for the District of Nevada: United States v. King, 2023 WL 4844888 (D. Nev. July 17, 2023).

Unfortunately, the Report and Recommendation contends that the motion should be denied on the ground that preservation is not a government seizure at all.  Under that reasoning, any federal, state, or local government employee could cause every account of every person in the United States to be copied and held for the government with no suspicion at all, and that simply wouldn't trigger the Fourth Amendment.

The rest of this post will explain Magistrate Judge Albregts' reasoning and why I am unpersuaded.  I'll do the arguments in reverse order, as I think it makes a little more sense that way. I'll start with whether there was state action, and then turn to whether a seizure occurred.

(1) The State Action Question

First, Judge Albregts argues that a provider who complies with a §  2703(f) request to preserve files for the government's potential use, as required by federal law, is not a state actor so the Fourth Amendment is never triggered in the first place:

The Court recommends denying King's motion to suppress the internet accounts. It finds that King did not meet his burden of showing that Omegle or TextNow should be deemed agents of the government by complying with the government's preservation request under 18 U.S.C. § 2703(f). Although the Government directed Omegle and TextNow to preserve the accounts, its involvement was limited only to requesting the preservation under 18 U.S.C. § 2703(f). And although Omegle and TextNow were responding to a request from the Government, they were also complying with their statutory obligations.

King has also failed to carry his burden of demonstrating that the Court should deem Omegle and TextNow agents of the government because the cases on which he relies are distinguishable and nonbinding on this Court. In Commonwealth v. Gumkowski, the Massachusetts Supreme Court found that Sprint acted as a government agent when it turned a defendant's cell site location information over to the government without a warrant. Commonwealth v. Gumkowski, 487 Mass. 314, 320-21 (Mass. 2021). However, here, the government did not ask Omegle or TextNow to turn over information, but instead requested that the electronic service providers preserve the information already in their possession under the Stored Communications Act pending the government obtaining a warrant. In United States v. Hardin, the Sixth Circuit Court of Appeals found that an apartment manager acted as an agent of the government when he entered a defendant's apartment at the government's request under the guise of repairing a leak to determine if the defendant was in the apartment. See United States v. Hardin, 539 F.3d 404, 417-20 (6th Cir. 2008). But Omegle and TextNow's actions of preserving information already in their possession as required under statute is meaningfully distinguishable from the private apartment manager entering a person's home to determine specific information at the government's behest.

With all respect to Magistrate Judge Albregts, I don't think that can be right.  Magistrate Judge Albregts is missing something super important:  Federal law mandates that providers comply.  It's a statutory "requirement," with the directive being what the provider "shall" do.  Here's the text of 18 U.S.C. §  2703(f), with emphasis added:

(f) Requirement To Preserve Evidence.—

(1) In general.— A provider of wire or electronic communication services or a remote computing service, upon the request of a governmental entity, shall take all necessary steps to preserve records and other evidence in its possession pending the issuance of a court order or other process.

(2) Period of retention.— Records referred to in paragraph (1) shall be retained for a period of 90 days, which shall be extended for an additional 90-day period upon a renewed request by the governmental entity.

Granted, the statute calls the government's demand a "request." But when the law mandates that you comply with a "request," that's not really a request.  It's an order. And when it's making you do the government's bidding, it's an order that makes you a state actor when you comply with it.

To see this, consider a hypothetical.  Imagine the statute were about making arrests rather than making copies of Internet files.  Let's slightly rewrite the statute accordingly into the following:

(f) Requirement to Make Arrests

(1) In general. —Any person, upon the request of a governmental entity, shall take all necessary steps to arrest a suspect who the government entity requests to be arrested.

(2) Period of detention.  A suspected arrested shall be detained for 48 hours, or until the government takes custody of the suspect arrested.

Imagine a police officer wants Bob arrested.  He comes up to Albert and says, "I request that you arrest Bob." The officer also shows Albert the legal requirement of federal law that he "shall" make an arrest when a police officer "requested" it.  Being made aware of the legal obligation to arrest, Albert arrests Bob on the police officer's behalf.

In that scenario, I think we would see pretty clearly that Albert is a state actor.   It would be pretty weak to say there was no state action because the government merely made a "request," as the federal statute said that a requested person "shall" do what the request was.  It's an order, not a request.  And it would be pretty weak to say that Albert was not a state actor because he merely "complied with his statutory obligations." The statutory obligation was to become a state actor; the law requires him to become the government's agent.

That's exactly the case with § 2703(f).  Internet providers don't fulfill preservation requests because they feel like it.  It's not their idea.  They get nothing from it.  They fulfill the requests because federal law makes them do it, and the providers don't want to violate federal law that requires them to comply.   When governments make preservation "requests" to providers, those providers are acting on the government's behalf, doing the government's bidding because they have to.  Seems pretty clear to me that the providers are state actors for Fourth Amendment purposes.

(2) The Seizure Question

Magistrate Judge Albregts also recommends concluding that, even if the providers were state actors, their running off a copy of the account that the defendant could not control does not "seize" anything.   As I read this, the government can order anyone's account to be copied without limit, or even order government servers to be installed that automatically make government copies of everyone's data. As long as the government doesn't look at its copy yet, the act of just having  the government copy made doesn't trigger the Fourth Amendment at all.

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Justice Sotomayor, in the Students for Fair Admissions affirmative action cases:

The Court also holds that Harvard's and UNC's race conscious programs are unconstitutional because they rely on racial categories that are "imprecise," "opaque," and "arbitrary."

We're off to a bad start. The issue is not simply that Harvard and UNC use these categories in a "race conscious" way, it's that Harvard and UNC classified their students by these categories, and then gave them an admissions bonus if they checked the box showing they were members of certain classifications.

To start, the racial categories that the Court finds troubling resemble those used across the Federal Government for data collection, compliance reporting, and program administration purposes, including, for example, by the U. S. Census Bureau. See, e.g., 62 Fed. Reg. 58786–58790 (1997). Surely, not all "'federal grant-in-aid benefits, drafting of legislation, urban and regional planning, business planning, and academic and social studies'" that flow from census data collection, Department of Commerce v. New York, 588 U. S. ___, ___ (2019) (slip op., at 2), are constitutionally suspect.

A lot of the things Sotomayor mentions are indeed problematic from a public policy point of view, because the classifications are so imprecise and arbitrary. Someone should write a book about it! But from a constitutional perspective, taking data based on these classifications into account for whatever reason is a different matter than classifying individuals and rewarding or penalizing them because they checked a particular box on a form.

The majority presumes that it knows better and appoints itself as an expert on data collection methods, calling for a higher level of granularity to fix a supposed problem of overinclusiveness and underinclusiveness.

As I discuss in some detail in my book, it was not "experts" who came up with these classifications, but, as Justice Gorsuch notes, "bureaucrats." Experts at the Census Bureau were livid when the Bureau decided to adopt these classifications for the 1980 Census. They found the "Hispanic" classification to be especially nonsensical, and product of politics rather than sound data policy.

But if we do want to defer to the pseudo-experts in the government who came up with them, we should recall that when they were initially published in the Federal Register in 1978, they came with these caveats: The "classifications should not be interpreted as being scientific or anthropological in nature" and should not be "viewed as determinants of eligibility for participation in any Federal program," assumedly alluding to affirmative action. As for various public and private planning uses of the data, the argument is circular; academics and planners use the data because the Census Bureau collects the data, which makes the relevant data cheap and readily available. If the Census Bureau used different classifications, researchers would generally use those instead.
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