The long term problem is that lawyers are often not stupid, and they can see that working for this DOJ will have deleterious effects on their future careers when this stuff is over. I’ve heard that the Minneapolis office is down to 9 attorneys, and should be staffed for 50.

But the immediate problem here dates back to Rumsfeld v. Padilla*. In that case, the supreme court decided that habeas petitions must be filed in the district of actual, physical confinement. This created a race condition, where ICE is trying to get these people out of Minnesota as fast as possible, and these people’s lawyers are trying to file the lawsuits in Minnesota before their clients physically leave the state. ICE would prefer for these petitions to be filed in Texas, because the Texas district courts are a lot more favorable to them. The Minnesota lawyers don’t want to have to file in Texas, both because it’s a disadvantage to them, and because they aren’t admitted to practice in Texas, and it’s a big hassle to work around that.

Combine that with Trump v. CASA, and no one wants to try a habeas class action. So you have a crap ton of individualized habeas petitions, all over the same issue, which is ICE’s incorrect interpretation of federal immigration law. And in many, many of these cases, they properly got filed in Minnesota, but the prisoners got shipped to Texas anyway. The Minnesota judges are figuring out that all these cases are the same, and they’re making the decisions real fast now, and ICE is not keeping up, by design. It’s a total logistical cluster.

*Yes, it’s that Donald Rumsfeld, and that Jose Padilla, the dirty bomb guy.

No. I am suggesting that these times are abnormal.

This is, uh, this is not how judges normally sign off on opinions:

They’re doing this because success would set up factual predicates to support invoking the Insurrection Act. The Insurrection Act is invokable when state governments are actively disobeying federal law.

They’re not invoking the Insurrection Act right at this moment, because with the facts they have right now, they’re not confident they’ll win the case in court. (And they may also lose a voting majority in Congress on the matter.)

1. The court found that there is no lawful basis to deport Abrego in the first place, because the government was unable to produce a copy of the 2019 deportation order in court.

2. The court found that government lawyers deliberately “misled the tribunal” regarding their efforts to deport Abrego to Africa. The court “will take this into account” while considering pending motions for sanctions.

3. In alternative to #1, the court found that the government was not really detaining Abrego to deport him, because they could have sent him to Costa Rica at any time in the past few months. But they did not.

4. Therefore, there is no lawful reason to subject Abrego to immigration detention, and the writ of habeas corpus is granted.

5. Abrego is still on bail in the TN criminal case.

This is a different judge in a different district than the one who handled the Comey indictment.

The lawsuit was filed by Dan Richman, who wants his personal data returned to him. The data was seized in 2019-2020 under search warrants, but the public learned in Comey case filings that the FBI failed to exclude non pertinent data, violating the terms of the original warrants. Among other problems.

In the previous Comey case, nearly all of the evidence that the government presented against Comey came out of these warrants. And it’s not clear if they have any other sources of evidence.

The speech and debate clause is separate from the arrest clause. The Treason exception only applies to the first part.

Additionally, Treason has a definition elsewhere in this document, and just giving any kind of speech doesn’t meet the standard.

Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.

It would be pretty hard to claim that any kind of speechifying amounts to “Aid and Comfort”, especially if you can’t identify the “Enemy” in a time when the nation is at peace.

Now the first amendment does apply here, but I expect a legal defense to go to this speech and debate clause first, then 1st amendment. Because 1st amendment has a bunch of exceptions of the “yelling fire in a crowded theater” type, but speech and debate is going to be more ironclad. Once you convince a court that you were doing Congressional speech or debate, then the only discipline you can face is from your chamber’s rules, period.

B-but, but… The Burn Bags??? The grand jury in Florida??? The conspiracy against rights???

Kash gotta stick around to cover for that stuff, right?

(If you don’t know what I’m talking about, keep it that way. This is like the dumbest bullshit I’ve ever heard, and I’ve heard a lotta bullshit. )

I am not looking forward to potential litigation on that question.

[The Senators and Representatives] shall in all Cases, except Treason, Felony and Beach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place.

In semi related news, Greg Bovino, the El Paso sector chief turned tactical commander of Operation Midway Blitz, has personally been found to be a non-credible witness by a federal judge.

This is a finding of fact. It’s presumptively admissable evidence in any future legal case he might testify in. On appeal, it can only be reversed for “clear error.”

Each one of those bullet points is potentially a way for Comey to get his whole case thrown out. In addition to that, Comey has 4 other motions to dismiss pending right now, and they’re pretty good arguments. At this point, Comey has so many different ways to win, that it is really hard to imagine that he won’t win on one of them. (In which case he still has an entire trial to defend himself on).

The issue where there’s no case law is a pretty narrow one, I think: The grand jury voted to approve the words of the charges (except that the charge numbers were different), but not the specific piece of paper that the words ended up typed out on. Is that important for the formal charging process or not? Either way this gets decided, it won’t effect very many people, because any competent prosecutor will just re-run the new piece of paper past the jury to make sure. And it may not get decided at all if Comey’s case is dismissed on any of the other reasons.

EDIT: If it’s not true. If it turns out that the grand jury no-billed all three counts, then we’d be looking at a forged indictment. And that would be a serious crime.

I encourage everyone to read the opinion, at least the fact findings. Because it is absolutely unhinged and insane. There are 11 separate findings of fact as to why Comey needs to see the grand jury materials. Here are some summaries:

• Nearly all of the presented evidence relies on search warrants from the Arctic Haze investigation (2019-2020). In the USA, search warrants specify the specific types of evidence to be seized, and the crimes they are searching for. These warrants were for some personal hard drives and email accounts of James Comey’s personal friend and attorney, Dan Richman.
• The warrants themselves said that the government was to go through the full forensic extractions and pick out data that was relevant to the investigation into classified data mishandling. The rest of the search data was to be thrown out. This was not done.
• The warrants said that attorney-client privilege data was to be separated out and thrown out. The first part was done, but not for the Comey-Richman privileged material, and in any case, the full extractions were retained, illegally.
• The warrants were to look for evidence of classified data mishandling, not evidence of lying to Congress. You can’t just take the data from one warrant and use it on another case. You need to get a new warrant for the new case, which wasn’t done. What happened here turns the warrants into “general warrants,” which King George III was infamous for using.
• The FBI agent (Agent 2) for this case was directed to review raw Cellebrite cell phone extractions, which were not supposed to be retained. While reading this stuff, he noticed that some emails between Comey and Richman appeared to be attorney client privilege material.
• Agent 2 passed some information from the Cellebrite to Agent 3 in a memo. Despite being tainted, Agent 3 went ahead and testified to the grand jury anyway.
• Halligan told the grand jury that Comey would be required to testify at trial to clarify things. This is absolutely wrong. Comey has the right to “take the fifth” and not testify at trial, and no adverse inference can be drawn if he chooses not to testify.
• Halligan suggested to the jury that her burden of proof at trial would something less than “beyond a reasonable doubt.” This is also a wrong instruction on the law.
• Halligan told the jury that she would have better evidence to present by trial time, and they could consider that promise when deciding whether to indict. This is wrong. The grand jury must make its decision based only on the evidence presented to it.
• And finally, the big kicker. There is a reasonable basis to think that the 2-count indictment that this prosecution is based on…the actual charging document…was never actually presented to the grand jury for an up-or-down vote. Instead, we think that the grand jury voted on the 3-count bill, rejecting count 1, and finding probable cause on counts 2 and 3. Then Halligan wrote a new indictment, renumbering 2 and 3 as counts 1 and 2, and got the foreperson to sign that, without holding another vote. This is, in the words of Judge Fitzpatrick, “unknown legal territory.” There’s no case law on this exact kind of screw-up.

The auto pen stuff too.

The discharge petition is just discharging a resolution that amends the Epstein stuff as a rider onto a regular bill.

So even if everything passes the House, the Epstein provision still has to complete the rest of the Schoolhouse Rock process:

• Pass in the Senate
• Survive conference committee
• Re-pass both chambers
• Trump veto
• Veto override on 2/3 votes in both chambers

As many times as you want, at least until the auto-pen breaks.

Federal employees will get back pay if that provision is in a bill that Congress will eventually pass. It’s not a guarantee, as you stated.

It is likely that any tests will be conducted in enclosed underground silos in Nevada. The site to do that has been maintained at some amount of readiness since the last test in 1992.

UPDATE: As the deadline expired today, the prosecution dropped this motion which discloses that they searched an attorney’s phone with a warrant.

Because the stuff on this phone is a landmine of attorney-client privilege, they contend, there must be a complicated and lengthy clean room-style process to sort the privileged stuff from non-privileged.

Comey disagrees and wants to challenge the search warrant first.

I strongly suspect they didn’t actually turn over much of anything today, but we shall see.

Comey’s attorney told the judge he has plans to bring 4 separate motions to dismiss the case, on 4 separate grounds.

• selective and vindictive prosecution
• Lindsey Halligan was not properly appointed as the US attorney, so she has no authority to charge the case.
• Abuse of grand jury, i.e. the indictment is invalid because the Halligan violated the very loose rules that exist when presenting the case to the grand jury.
• outrageous government conduct. Who knows what that is.

I was surprised he didn’t move to dismiss right there at the arraignment for failure to state an offense.

The prosecutors said they have a bunch of classified evidence they have to sort through. The judge did not like that. There’s no reason for anything to be classified in this case. Comey’s alleged lie was in public to Congress on CSPAN. And he was talking about unclassified stuff.

So this classified documents stuff seems to be a delaying tactic, because these guys have no idea what they’re going to do with discovery. And I’ve heard that eastern district of VA is called the “rocket docket” because the judges like to move fast. They don’t like delays.