By Ella Lee and Zach Schonfeld | Wednesday, November 26 |
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By Zach Schonfeld and Ella Lee Wednesday, November 26 |
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Trump on warpath in 'sedition' fixation |
President Trump is on a warpath. In the week since six Democrats urged service members to refuse "illegal orders," the president called for their prosecutions, resignations, imprisonments and even their deaths. He has homed in on sedition, the rarely charged and serious accusation of rebelling against the U.S. government that was catapulted into common vocabularies when right-wing extremist group leaders faced such charges — and were convicted — after plotting to keep Trump in power on Jan. 6, 2021, when he lost the 2020 election. "IT WAS SEDITION AT THE HIGHEST LEVEL, AND SEDITION IS A MAJOR CRIME," Trump wrote in one Truth Social post. "THERE CAN BE NO OTHER INTERPRETATION OF WHAT THEY SAID!" But Trump's actual focus on the Democrats takes a slightly different bent. While the Oath Keepers and Proud Boys were accused of seditious conspiracy, or conspiring to oppose the government or block the execution of laws by force, the statute Trump points to on social media hinges on efforts to turn soldiers disloyal to undermine the military. The provision, 18 U.S.C. § 2387, falls within the same chapter of federal law as sedition, insurrection, government overthrow and even treason. But none of those are synonymous. "It's under that umbrella, but seditious conspiracy is a whole other federal statute," said Katie Sweeten, a former federal prosecutor and partner at the law firm Scale LLP. The six Democrats — Sens. Mark Kelly (Ariz.) and Elissa Slotkin (Mich.) and Reps. Chris Deluzio (Pa.), Maggie Goodlander (N.H.), Chrissy Houlahan (Pa.) and Jason Crow (Colo.) — shared a video online last week calling on troops to "refuse illegal orders." It quickly escalated. "You all swore an oath to protect and defend this constitution," said the video, which switched between their perspectives. "Right now, the threats to our constitution aren't just coming from abroad, but from right here at home. "Our laws are clear: You can refuse illegal orders," it continues. "You can refuse illegal orders; you must refuse illegal orders." It's not clear which orders the Democrats intended to reference. But Trump and DOD officials have issued several directives that have raised legal questions, including strikes on alleged drug cartel vessels and sending National Guard troops into American cities. The FBI has launched a probe into the lawmakers. What Trump and other allies have accused the Democrats with military and intelligence background of committing is "activities affecting armed forces generally." It says that anyone who "advises, counsels, urges or in any manner causes or attempts to cause insubordination, disloyalty, mutiny or refusal of duty" by service members — or anyone who "distributes or attempts to distribute any written or printed matter" which makes such advisements — is in violation of the statute, on one condition. The accused must also be found to have had an intent to "interfere with, impair or influence the loyalty, morale, or discipline" of service members. That means that if the Justice Department charges any of the Democrats, prosecutors would have to prove that they purposefully sought to undermine the military. If convicted, they'd face up to 10 years in prison and a ban on employment by the United States government for the subsequent five years. So far, Kelly has borne the brunt of Trump's wrath. On Monday, the Department of Defense said it had received "serious allegations of misconduct" against the Democratic senator in Arizona and said it would conduct a review. The review could include recalling Kelly, a retired Navy captain, to active duty so he could face a court martial or administrative punishment, said the post, which referred to the statute on which Trump has zeroed in. Sweeten, who also previously served as DOJ's liaison to the Defense Department, said returning a retired service member to active duty to face military prosecution has been done before but it's "very rare." |
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Epstein files deadline; Tariffs, tariffs everywhere |
What to watch: Epstein files deadline approaches |
Trump's signature on the Epstein bill last Wednesday began a 30-day clock for the Justice Department to release the materials it possesses concerning the disgraced financier, Jeffrey Epstein. It sets up a deadline just ahead of Christmas, though it's yet to be seen what it will actually yield. The law's terms are expansive. It requires the Justice Department, all U.S. Attorneys' Offices and the FBI to release any materials they have concerning Epstein and his longtime associate, Ghislane Maxwell. That includes any unclassified flight logs, immunity deals, settlements, internal meeting notes and electronic data. It also spans medical examiner files, autopsy records and other documents the department possesses concerning Epstein's death in jail. Congress even required the documents be made available in a "searchable and downloadable format." It marks a new phase over the battle of the Epstein files, which has enraged much of the president's political base. Trump flipped and began supporting the bill just before dozens of Republican detractors were expected to vote for the release in the House last week. But as the 30-day clock ticks down, we're waiting to see how much of the material the Justice Department redacts or holds back entirely. The law allows Attorney General Pam Bondi to withhold material that falls under any of several exceptions, including child sexual abuse material, images of physical abuse and victims' personally identifiable information. Notably, another exception covers records that "would jeopardize an active federal investigation or ongoing prosecution." Trump has directed his Justice Department to investigate Epstein's ties to prominent Democrats, even as it said earlier this year a "systematic review" uncovered no new evidence against "uncharged third parties." Bondi tapped Jay Clayton, who leads the powerful U.S. Attorney's Office for the Southern District of New York, to spearhead the investigation. Bondi has vowed to follow the new law, but it remains to be seen whether Clayton's investigation will impact the release. Any withholding for an investigation must be "narrowly tailored and temporary," and the law requires the Justice Department to submit a written justification to Congress. The administration cannot withhold records because they would cause embarrassment to a government official or public figure. Once the law was passed, the Justice Department on Monday asked two federal judges to unseal grand jury records in the prosecutions of Epstein and Maxwell. For Epstein, U.S. District Judge Richard Berman set a briefing schedule through Dec. 8 before ruling. Berman was appointed by former President Clinton. U.S. District Judge Paul Engelmayer, an appointee of former President Obama who oversees Maxwell's docket, set a schedule through Dec. 10. Both judges previously denied the Justice Department's efforts to unseal grand jury materials, but that was before Congress almost unanimously passed the new law. "Here, there are multiple features of the Act that support an inference that Congress has affirmatively expressed its intent to modify the rule of secrecy with respect to the grand jury materials at issue in this case," Clayton wrote in court filings. |
You get a tariff lawsuit! You get a tariff lawsuit! |
Companies are lining up for refunds just in case the Supreme Court strikes down Trump's tariffs under the International Emergency Economic Powers Act (IEEPA). Before this month, fewer than 15 lawsuits were on the books. But in November, more than 45 new cases have been filed, a number that continues to grow by the day. Read the full list of lawsuits here. Why? Companies are growing concerned they need to be an actual plaintiff to get their money back. Dozens of the new cases are brought by Crowell & Moring, a major law firm based in Washington, D.C. "This separate action is necessary, however, because even if the IEEPA duties and underlying executive orders are held unlawful by the Supreme Court, importers that have paid IEEPA duties, including Plaintiff, are not guaranteed a refund for those unlawfully collected tariffs in the absence of their own judgment and judicial relief," the firm wrote in dozens of its lawsuits. The companies joining the legal fight run the gamut. The list includes players in the auto industry, like Kawasaki and several companies part of the Toyota Group, food companies like Bumble Bee Foods and the cosmetics business Revlon. Even board game company Smirk & Dagger Games filed a suit. It all comes as the nation awaits the Supreme Court's decision on whether Trump can invoke IEEPA, an emergency powers law Congress passed in the 1970s, to impose his sweeping levies. The court has yet to release any decisions in argued cases this term, but that could change as the justices return to the bench following Thanksgiving. The tariff case was expedited, meaning a decision may come sooner rather than later. Trump has cited IEEPA in imposing tariffs on China, Canada, Mexico and Brazil as well as his global "reciprocal" tariffs against dozens of trading partners. If the court strikes down the tariffs, companies who paid them would be eligible for refunds. For the small businesses suing at the Supreme Court, the government has already agreed to give the money back. And the Americans who paid inflated prices for those imported goods are likely out of luck. But Neal Katyal, the legal heavyweight who represents those businesses, acknowledged it will be "very complicated" for other companies as they work through specialized trade law. "So, a mess," Justice Amy Coney Barrett quipped. Katyal replied, "So, it's difficult, absolutely." Adding another layer of complication: many of the companies are warning their tariffs will be "liquidated" as early as next month. Importers typically pay an estimated duty when goods enter the United States. Liquidation refers to when officials finalize the amount and close the books, which usually takes place months later. The companies are raising concern they may lack the legal right to recover full refunds once liquidation occurs, previewing they will seek emergency relief in the coming weeks. |
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- Comey, James dismissals: A federal judge dismissed the cases against former FBI Director James Comey and New York Attorney General Letitia James (D) after finding that the prosecutor Trump handpicked to pursue charges against them was unlawfully appointed. It's left DOJ with murky paths forward.
- Texas goes to SCOTUS: Texas Republicans filed an emergency Supreme Court appeal asking to revive its GOP-friendly congressional map that sparked a mid-decade redistricting blitz. Justice Samuel Alito restored the map until the court rules, which could come anytime. Texas wants the justices to take action by Monday. It comes as the high court considers several other major redistricting battles.
- Bolton case updates: The Department of Justice signaled that former national security adviser John Bolton could face additional charges in his criminal case over allegedly mishandled classified documents, which is on a sluggish pace to trial.
- National Guard blocked in DC: A federal judge blocked Trump's deployment of National Guard troops to Washington, D.C., amid his crackdown on local crime, ruling that the Pentagon's deployment of D.C. National Guard members for "non-military, crime-deterrence missions" and its calls for assistance from out-of-state troops likely exceeded federal authority and violated the law.
- Congresswoman indicted: A grand jury indicted Rep. Sheila Cherfilus-McCormick (D-Fla.) for allegedly stealing $5 million in Federal Emergency Management Agency (FEMA) funds and using some of it to fund her campaign. She denies wrongdoing.
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- Cabinet raid: Chuck Johnson, a notorious far-right troll, was arrested in Texas for contempt of court — and also, for allegedly stealing mugs and water bottles from the courthouse, according to court filings.
- You be the judge: DHS Secretary Kristi Noem, who oversees immigration law enforcement, promoted the Justice Department's open job listing for immigration judges on social media that calls on applicants who will "restore integrity and honor" to the immigration court system.
- Call your lawyer: The self-proclaimed "Jew-ish" deli chain Call Your Mother, based in Washington, D.C., is suing for trademark infringement a bagel shop in New Jersey called Call Your Bubbi, the Yiddish word for grandmother (a note from Zach: I was always taught to spell it "Bubbe").
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Cases the Supreme Court is taking up — or passing on — this term. |
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After agreeing to take up a case, the Supreme Court normally will hear another round of written briefing and schedule oral arguments before issuing an opinion. This week, the court issued two opinions without taking those steps, a practice known as a summary decision. The first is Pitts v. Mississippi. A jury convicted Jeffrey Pitts of sexually battering his 4-year-old daughter, and he was sentenced to 30 years in prison. Mississippi law allows child witnesses to testify with a screen obscuring their view of the defendant. Prosecutors got one for the daughter, who testified. Pitts raises a defense under the Constitution's Confrontation Clause, which ordinarily guarantees a criminal defendant the right to see the witnesses against them face-to-face. Under Supreme Court precedent, that can even extend to child sex abuse victims testifying against their abusers; judges may only screen a child when necessary to protect them from trauma. The justices' five-page, unsigned opinion said the trial judge's conclusions "fall well short" of those precedents. The high court ruled the judge failed to make an individualized finding the screen was necessary. The second case, Clark v. Sweeney, we highlighted earlier this month. An appeals court had tossed Jeremiah Sweeney's murder conviction over a juror's visit to the crime scene (the juror was dismissed, but the trial continued). Maryland asked the justices to reinstate the conviction. Well, they did. Sweeney had gone to federal court to argue he had ineffective counsel, because his attorney didn't seek to question the other jurors. But the appeals court tossed Sweeney's conviction on another ground he never raised: a "combination of extraordinary failures" violated his constitutional right to an impartial jury. The Supreme Court said the judges took a "turn at bat" rather than their proper role of calling "balls and strikes," invoking an expression made famous by Chief Justice John Roberts. "The Fourth Circuit transgressed the party-presentation principle by granting relief on a claim that Sweeney never asserted and that the State never had the chance to address," the unsigned opinion reads. In both cases, the battle isn't over yet. The appeals court will now proceed to analyze the argument Sweeney actually raised. And for Pitts, Mississippi remains free to argue to the Confrontation Clause violation was a harmless error and the conviction can still stand. |
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| Out: Damages for military injuries |
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Last month, we previewed Beck v. United States. The family of Air Force Staff Sergeant Cameron Beck, who was fatally struck by a government employee driver in 2021, sought to revive their damages lawsuit against the federal government. The Supreme Court turned away the family's appeal over the dissents of Justices Clarence Thomas and Neil Gorsuch, two of the court's conservatives. At its core, the case concerned an exception to an exception. The default rule is that the federal government cannot be sued without its consent. Under the Federal Tort Claims Act (FTCA), that immunity is waived when a government employee's negligent or wrongful act causes someone's death. And under the Supreme Court's 1950 decision, Feres v. United States, the FTCA's waiver does not extend to service members' injuries that are "incident to service." Beck was killed while riding his motorcycle at Whiteman Air Force Base in Missouri. But his family argued the Feres doctrine didn't apply because he was off duty, riding home for his lunch break. They also urged the court to consider overruling Feres entirely, but the court declined to so. A longtime critic of the Feres doctrine, Thomas reupped his condemnation. "For more than 38 years, this Court has given no clarity to a doctrine it created," Thomas dissented. Gorsuch, too, voted to take the case, but he did not explain his reasoning. Justice Sonia Sotomayor, the court's seniormost liberal justice, voted against taking the case. Sotomayor penned a three-page statement agreeing Feres is a "difficult decision to justify," but she said the court should adhere to its precedent, a principle called "stare decisis." "Even so, out of respect for the Court's rules of stare decisis, and in recognition of the reliance interests that Feres has generated, I vote to deny this petition," Sotomayor wrote. |
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| Don't be surprised if additional hearings are scheduled throughout the week. But here's what we're watching for now: |
- Wisconsin judge Hannah Dugan, accused of helping a migrant evade arrest by federal immigration agents, will appear for her final pretrial conference.
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- Federal courts are closed for Thanksgiving.
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- There are no notable hearings.
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- Luigi Mangione, accused of killing UnitedHealthcare CEO Brian Thompson, will appear for his next pretrial hearing in state court in Manhattan.
- The Supreme Court will consider whether internet service providers can be held liable for copyright infringement committed by users. The case is Cox Communications, Inc v. Sony Music Entertainment.
- The justices will also weigh whether courts have to give deference when reviewing the Bureau of Indian Affairs' determination that a noncitzen's undisputed circumstances does not amount to persecution that entitles them to asylum. The case is Urias-Orellana v. Bondi.
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- The Supreme Court will consider whether a network of anti-abortion clinics may bring a First Amendment challenge in federal court to a subpoena from New Jersey's attorney general. The case is First Choice Women's Resource Centers, Inc. v. Platkin.
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We'll be back next Wednesday with additional reporting and insights. In the meantime, keep up with our coverage here. |
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