“We need to remember that earlier this year officials retrieved boxes of materials from Mar-a-Lago that they said should have been turned over to the National Archives before Trump left office. According to reporting from CNN, investigators became aware of the existence of more such documents during a visit to Mar-a-Lago in June. But instead of simply taking these documents as officials had done previously, or subpoenaing Trump for the documents, investigators took the more serious step of requesting a search warrant. This suggests that officials at the Department of Justice did not think they would get all the documents in Trump’s possession if they filed a subpoena.
There is much we still don’t know about what the agents were looking for and what they found, but the process of applying for and receiving permission for the warrant indicates the significance of what happened Monday.
Typically, I would advise a client that an FBI search at your home means that you will likely face charges. That’s because a federal judge determined that there was good reason to believe a federal crime was committed and that evidence of the crime was in your home. To be clear, the execution of a search warrant doesn’t necessarily mean that the evidence points to the owner of the home as the person who committed the crime. It just usually works out that way.
To obtain the warrant, the DOJ had to present a detailed affidavit to a judge walking through the evidence they have that a crime was committed and providing some reason to believe evidence of that crime is at Mar-a-Lago right now. I emphasize “right now” because the government needs to show that there was probable cause to believe that evidence of the crime was present at Mar-a-Lago at the time of the search. It is extremely unlikely that a judge would approve a warrant based on stale evidence that had been received many months ago. The Justice Department also would act in the most conservative, cautious manner given the enormous stakes for the Department’s reputation and the nation as a whole.”
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“The nature of the possible charges is also very unclear. Recent reporting from both the New York Times and the Associated Press indicates the search warrant is related to classified material taken from the White House by Trump when he left office. But we know that mishandling classified documents only rarely results in charges.
James Comey was right when he testified that the DOJ typically does not prosecute cases involving the mishandling of classified material unless that material was deliberately transferred to a third party. That suggests to me that there is something important — call it a plus factor — we don’t know here. People on the right have rushed to judgment and are already saying, “This is just a docs case.” But we don’t know that. In fact, there is reason to believe it is more than that.”
“Arizona Gov. Doug Ducey, a Republican, signed a bill into law Wednesday that will make it illegal to film the police within eight feet.
The legislation, H.B. 2319, makes it a misdemeanor offense to continue filming police activity from within eight feet of an officer after receiving a verbal warning. The bill originally restricted filming the police from no closer than 15 feet away, but it was amended after criticisms.
There are also exceptions for filming the police in a private residence, during a traffic stop, and for the subject of a police encounter. But the law qualifies those exceptions, saying they apply only if the person recording is “not interfering with lawful police actions,” or “unless a law enforcement officer determines that the person is interfering in the law enforcement activity or that it is not safe to be in the area and orders the person to leave the area.”
Interfering with police, or obstruction of justice, is one of the most frequently cited justifications for frivolous and retaliatory arrests.”
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“”Can you be arrested for standing still while wearing a GoPro under this statute?” Doucette asked. “It seems the answer here is yes, which would violate the First Amendment (since standing still isn’t interfering with an officer’s duties).””
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“State legislators should be less concerned with cops’ feelings and more concerned about citizens’ right to document how armed government agents go about their business. Giving officers another discretionary offense to slap on someone who annoys them will lead only to more confusion and more censorship.”
“Since the Dobbs decision, Wisconsin clinics have been proceeding as if abortion is now illegal in the state based on an 1849 law banning the procedure, except to save the life of the mother. However, state Attorney General Josh Kaul, a Democrat, has said he won’t enforce the ban, and Democratic Gov. Tony Evers promised to pardon any doctors convicted of performing an abortion. In fact, on Tuesday, Evers and Kaul announced a legal challenge to the 1849 ban. (Evers has also said he is considering executive action that would limit local prosecutors’ ability to enforce the law.)
But Kaul and Evers could both lose reelection in 2022. Evers’s loss would be especially consequential: Not only might doctors once again face jail time for performing abortions if the 1849 ban is determined to be operative, but also, if it is not, a Republican governor could join forces with the Republican-led legislature to pass a modern abortion ban. The opposite situation — Democrats winning the legislature and working with Evers to enact new abortion protections — is pretty much off the table, though. Wisconsin’s state-legislative maps are heavily biased toward the GOP, so Democrats do not have a realistic shot at winning either chamber.”
“The federal government prosecuted Merle Denezpi twice for the same crime. It also punished him twice: the first time with 140 days in a federal detention center, the second time with a prison sentence more than 70 times as long.
Although that may seem like an obvious violation of the Fifth Amendment’s ban on double jeopardy, the Supreme Court..ruled that it wasn’t. As the six justices in the majority saw it, that puzzling conclusion was the logical result of the Court’s counterintuitive precedents on this subject.
The Fifth Amendment says no person will “be subject for the same offence to be twice put in jeopardy of life or limb.” But under the Court’s longstanding “dual-sovereignty” doctrine, an offense is not “the same” when it is criminalized by two different governments.
That doctrine allows serial state and federal prosecutions for the same crime, opening the door to double punishment or a second trial after an acquittal. Although neither seems just, the Court says both are perfectly constitutional.”
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“Gorsuch, joined by Justices Sonia Sotomayor and Elena Kagan, dissented…Even the “colossal exception” created by the dual-sovereignty doctrine, he said, is not big enough to encompass the two cases against Denezpi, both of which were pursued by the federal government under federal law.
In 2017, Denezpi and a woman identified as V.Y. in court papers, both members of the Navajo Nation, traveled to Towaoc, Colorado, a town within the Ute Mountain Ute Reservation where Denezpi’s girlfriend lived. V.Y. alleged that Denezpi sexually assaulted her during the trip, while he maintained that the encounter was consensual.
After federal officials charged Denezpi with three crimes, he pleaded no contest to assault and battery, which is defined by tribal law but also punishable under the Code of Federal Regulations by up to six months in jail. A Court of Indian Offenses, part of a system established by the Department of the Interior, sentenced Denezpi to time served: 140 days.
Accepting V.Y.’s allegations as true, most people would view that penalty as excessively lenient, and federal prosecutors in Colorado evidently agreed. Six months after Denezpi completed his Interior Department sentence, the Justice Department charged him with aggravated sexual abuse, which resulted in a 30-year federal prison term.”
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“Six justices nevertheless approved the second prosecution, tracing the authority for the first conviction to a distinct “sovereign”: the Ute Mountain Ute Tribe. But as Gorsuch notes, the first prosecution was not based on tribal law per se; it was based on a federal regulation that criminalizes “violation of an approved tribal ordinance.”
Although the two convictions involved the “same defendant,” the “same crime,” and the “same prosecuting authority,” Gorsuch observes, the Court implausibly concluded that “the Double Jeopardy Clause has nothing to say about this case.” Such reasoning amplifies the danger that Gorsuch decried in 2019, inviting the government to “try the same individual for the same crime until it’s happy with the result.””
“The preliminary results of St. Paul, Minnesota’s, strictest-in-the-nation rent control law have not been good. Developers have fled, while applications for new building permits and property values have both collapsed. Now, a pair of landlords are suing the city, claiming the law is unconstitutional.”
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“The ordinance, written by local activists and passed by voters in November 2021, capped rent increases in the city at 3 percent per year, with none of the typical allowances or exemptions for inflation, vacant units, and new construction.
The policy is far stricter than basically every other rent control law in the country. Oregon’s 2019 state rent control law, for instance, allows for property owners to raise rents by 7 percent plus inflation and exempts buildings less than 15 years old from these price caps.
While the St. Paul ordinance did allow landlords to obtain exemptions to that 3 percent cap if it threatens their ability to earn a “reasonable return” on their investment, what would count as a reasonable return and how to secure an exemption were left up to the city to hash out. St. Paul came out with proposed rules for implementing the ordinance, including the exemption process, in early April 2022. These were finalized later that month, and everything went into effect on May 1. The final rules allow landlords to “self-certify” exemptions if they’re trying to raise the rent by no more than 8 percent, which involves filling out a short form and submitting it to the city.
Landlords are also permitted to raise the rent up to 15 percent. Doing so requires vetting from city staff and the completion of a 22-page worksheet that asks the applicant to provide exhaustive detail about changes in their expenses that might justify a rent increase. Because all exemptions can be appealed and subjected to a city audit, even landlords who can self-certify increases of up to 8 percent are encouraged (but not required) to fill out that 22-page worksheet as well.
It’s a daunting prospect for many of St. Paul’s smaller landlords.”
“no sensible jury confronted with all of this evidence would have concluded that Jones was guilty beyond a reasonable doubt.
But Jones’s lawyers failed to present crucial evidence at his trial.”
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“Then, after Jones challenged his conviction in a state court proceeding, he was met with, as Sotomayor put it, “another egregious failure of counsel.”
In the words of the law, Jones was denied his constitutionally required right to effective assistance of counsel — twice.
Sotomayor, however, wrote these words in a dissenting opinion. On a party line vote in Shinn v. Ramirez, the Court held that Jones will not receive a fair trial despite his lawyers’ poor performance.”
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“Justice Clarence Thomas’s majority opinion claimed that a law restricting the power of federal courts to toss out convictions in state courts prevents Jones from seeking relief. But Thomas’s reading of this law is novel — his opinion had to gut two fairly recent Supreme Court decisions to deny relief to Jones.”
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“Before Monday, the Supreme Court’s decisions in Martinez v. Ryan (2012) and Trevino v. Thaler (2013) should have guaranteed Jones a new trial. Both decisions deal with what should happen in the unusual circumstance when someone accused of a crime receives ineffective assistance of counsel, twice.”
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“If a state fails to provide convicted individuals with a way to challenge their conviction on ineffective assistance grounds, federal courts may step in and provide a forum to hear this challenge in what is known as a “habeas” proceeding. Martinez, moreover, established that federal courts may step in when a criminal defendant receives inadequate assistance of counsel both at their trial and in a state proceeding permitting them to challenge their conviction.
Both a federal trial court and an appeals court determined that this is exactly what happened to Jones — that is, neither his state trial attorneys nor the lawyers who represented him in his postconviction challenge adequately investigated his case. And, without seeing all the evidence suggesting that Jones is innocent, the state court judge presiding over this postconviction proceeding had no way to know that Jones’s conviction should be tossed out.
The federal trial court held its own evidentiary hearing, considered the evidence against Jones and the evidence that his lawyers botched his case, and ordered the state of Arizona to give him a new trial.”
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“[The] decision in Ramirez does not explicitly abandon Martinez and Trevino, but, as Sotomayor explains in dissent, “the Court all but overrules” these two decisions “that recognized a critical exception to the general rule that federal courts may not consider claims on habeas review that were not raised in state court.”
Under Justice Thomas’s majority opinion, federal courts may still conduct habeas proceedings when a criminal defendant alleges that they received inadequate assistance of counsel twice, but the federal court may not consider any evidence that wasn’t presented in earlier proceedings. As Thomas writes, “if a prisoner has ‘failed to develop the factual basis of a claim in State court proceedings,’ a federal court ‘shall not hold an evidentiary hearing on the claim’ unless the prisoner satisfies one of two narrow exceptions” that are not present in Jones’s case.
The problem with this rule should be obvious. The whole point of Jones’s federal case is that his state court lawyers performed so poorly that they failed to uncover evidence that should have exonerated him. If a federal habeas court may only consider evidence that was presented by feckless lawyers to state courts, then there is no point in having a federal habeas proceeding in the first place.”
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“in Sotomayor’s mind, and in the minds of the two other justices appointed by Democratic presidents who joined her opinion, the purpose of a criminal trial is to determine whether or not someone is actually guilty of a crime — and to do so through an adversarial process where both sides are represented by lawyers who can present the best possible legal and factual case for the prosecution and the defense.
Thomas, writing for the Court’s Republican majority, offers a different view of why trials exist. He deems federal habeas proceedings problematic because they “override[] the States’ core power to enforce criminal law.” When a federal court deems someone’s conviction constitutionally inadequate, Thomas complains, it “overrides the State’s sovereign power to enforce ‘societal norms through criminal law,’” and “disturbs the State’s significant interest in repose for concluded litigation.”
Thus, in Thomas’s view, the purpose of a state-conducted trial is to give criminal defendants a procedure in state court. But once that process is concluded, the state court’s decision generally should remain final — even if that means executing an innocent person or condemning someone in violation of the Constitution.”
“Under the legislation, $750 million would be allotted over the next five years to help states implement red flag laws, which allow authorities to temporarily confiscate guns from individuals deemed a threat to themselves or others. (Similar laws already exist in 19 states and the District of Columbia.) The legislation allows for the implementation of these programs through mental health, drug and veterans’ courts.
Republicans involved in the negotiations pushed to make sure no one is flagged without “the right to an in-person hearing, an unbiased adjudicator, the right to know opposing evidence, the right to present evidence, and the right to confront adverse witnesses,” as well as a right to bring counsel to the hearing.
“Under this bill, every state will be able to use significant new federal dollars to be able to expand their programs to try to stop dangerous people, people contemplating mass murder or suicide, from being able to have access to the weapons that allow them to perpetrate that crime,” Murphy said in a floor speech.”
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“While spouses, co-parents or cohabitating partners convicted of domestic violence are already banned from purchasing firearms, abusers in relationships between people who are not married and live separately are still able to purchase guns, creating the so-called “boyfriend loophole.” (According to Everytown, a gun safety advocacy group, about 70 women are shot and killed by an intimate partner every month.)
Under the new legislation, anyone convicted of domestic violence against a former or current dating partner would be banned from purchasing a weapon.”
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“The legislation calls for an expansion of background checks into buyers under 21 years of age, providing three business days for the check into their criminal and mental health history to be completed. If that background check finds something questionable in a potential buyer’s record, the legislation would provide for an additional seven business days to look into the buyer.”
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“The bill provides funding for expanding access to mental health services, including making it easier for Americans on Medicaid to use telehealth services and work with “community-based mental health and substance use disorder treatment providers and organizations.” And it would provide additional funding for the national suicide prevention hotline (since guns accounted for a majority of suicide deaths in 2020) while schools would receive funding to increase the number of staff members providing mental health services.”
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“The bill also provides $300 million for the STOP School Violence Act for increased security at schools, although some Democrats had expressed concern about this aspect of the bill.”
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“The legislation would also require more sellers to register as “Federally Licensed Firearm Dealers,” including anyone who sells guns to “predominantly earn a profit.” These sellers would in turn be required to run background checks on potential buyers and keep records of the sales.
The bill would also impose penalties on “straw” purchasers who buy guns for people who can’t pass a background check.”