Throwing Trump Under the Bus?

#WeNeedYouBradPitt

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The DnD show begins as David Lat returns to co-guest host in Sarah’s absence. David and David discuss a strange First Amendment case out of the Fifth Circuit involving terrorism and COVID zombies, and:

-Jan. 6 fake electors case

-Non-delegation at the Sixth Circuit

-Some drama with Big Law

-Breaking News: Trump court date set

Show notes:

Georgia amicus brief opposing removal

Bailey v. Iles (Fifth Circuit free-speech case)

Allstates Refractory Contractors v. Su (Sixth Circuit nondelegation case)

Chris Geidner on Allstates

Jonathan Adler on stare decisis

MoFo complaint

Perkins Coie complaint

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Comments (81)
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  1. Davidbenjaminlat

    [I originally posted this in the comments to the August 31 episode, but it's also germane here.]

    I think there's a decent chance that my no-removal prediction will be wrong (which wouldn't be the first time I've been wrong, haha). Judge Jones just asked for supplemental briefing on whether "a finding that at least one (but not all) of the overt acts charged occurred under the color of Meadows’s office [would] be sufficient for federal removal of a criminal prosecution under 28 U.S.C. § 1442(a)(1)."

    This suggests to me that Judge Jones thinks that there is at least one such act. Perhaps Judge Jones wants to get his hands on this high-profile, historic case?

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    Hawks Law Office

    David F., I appreciate your asking whether there was an incremental way of ruling in Dobbs that is consistent with originalism. In fact, I filed an amicus brief in Dobbs proposing just such a ruling, provided that one accepts the notion that originalism encompasses both constitutional interpretation and constitutional construction.

    My amicus brief is here (www.supremecourt.gov/DocketPDF/19/19-1392/192609/20210916131541917_41445%20pdf%20Hawks.pdf)
    and the argument that constitutional construction can be originalist is here (https://scholarship.law.georgetown.edu/facpub/2000/).

    The incremental ruling consistent with originalism was for the Court to have limited Roe to its facts, the key fact being that the fetus was not a legal person in Texas or Georgia in 1973, or in Pennsylvania in 1992. I would argue that a liberty right which does not infringe the rights of any other legal "persons" was as much consistent with an original understanding of the liberty protected by the Due Process Clause as other personal autonomy cases like Meyer v. Nebraska, Pierce v. Society of Sisters, Griswold v. Connecticut, and Lawrence v. Texas -- all of which involved liberty rights that did not infringe other personhood rights.

    What neither Roe nor Casey addressed was whether states have a 10th Amendment power to declare fetal personhood under their respective state constitutions. Dobbs should therefore have ruled only that Roe was still good law in states (like Mississippi!) that had not yet granted fetal personhood, but left open to a future case whether states can in fact do so. In such a case I believe the Court would properly rule in favor of the states, but in the meantime the incremental ruling that I proposed would have meant that no trigger laws would take effect, thereby requiring each states to deliberate more cautiously on whether they truly wanted fetal personhood and what it would mean. Not insignificantly, Mississippi rejected fetal personhood in a statewide referendum in 2011 by a 57.63% to 42.36% margin.

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    Azjauthor

    As always enjoy the podcast. At the end, though, something caught my ear. David said, "No baby yet" in regards to Sarah, and it made me think of a point Jonah's made repeatedly. He has frequently invoked the example of on television - he generally uses Friends for this analogy, probably because that's when he noticed it and first wrote about it - someone (a woman, that is) gets pregnant, and then once the woman announces that she's intending to keep the child, everyone treats it like a baby. Jonah seems to think this is some sort of scathing hypocrisy ... and I'll be honest, while I fully understand the point he's making, I've frankly never understood how it's even a minor hypocrisy. The whole point of a pro-choice belief structure is that you believe the person who should make the choice about whether or not the pregnancy is going to proceed to result in a baby (barring an unexpected tragedy) is the woman who is pregnant. Once she has decided that she wants the experience of becoming a parent, there's no hypocrisy in anticipatory celebration with her.

    But the core thesis of the more stringent anti-abortion/pro-life movement, which I'd classify David as (despite his admirable and reasonable incrementalist inclinations), is that the child is a baby from the moment of conception. It does seem somewhat nonsensical, in that worldview, to say that "The baby isn't here yet." The baby has been here for 9 months, it would seem.

    My issue here isn't so much to criticize David's phrasing, because I think it's perfectly normal and appropriate, but to point out that we use language around this issue - on both sides - in ways that don't reflect our deepest convictions. Or, I suppose, they may reflect our deepest convictions, but not the ones that we lay claim to.

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    Abacaxi

    I really enjoyed this, and listening to David Lat is a real treat.

    In the discussion of the Perkins/MoFo litigation, I was interested that both Davids seemed to agree that employers can safely use proxies for race, or perhaps use race in the limited way that Roberts endorsed in Harvard. But it's not clear to me that that would work. Apart from anything else, the way I understand the implicit logic of Roberts ever since Parents Involved and the majority in Harvard is that discrimination = discrimination. If that's right, wouldn't disparate impact analysis effectively prohibit that kind of workaround, even if a plaintiff couldn't prove that the use of proxies is pretextual?

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    1. Davidbenjaminlat

      Just to clarify my own view (and I suspect David French would agree), I agree that you can't use proxies for race to achieve racial discrimination, racial balancing, or the like. As Chief Justice Roberts's opinion in the SFFA cases makes clear, "what cannot be done directly cannot be done indirectly."

      But you CAN take into account other (independently legitimate) factors, such as income or first-generation status. And those factors might not affect all races equally (since, for example, income isn't distributed equally across races).

      SFFA—the plaintiff in the SCOTUS cases, founded by Edward Blum, who is also behind the MoFo and Perkins Coie suits—is all in favor of an admissions preference for low socioeconomic status. And at trial, SFFA's experts showed that you if you give a preference for low socioecnomic status and make certain other changes to admissions, such as getting rid of legacy preferences, you'll end up with a racial composition that's not terribly different from the status quo.

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  5. Alan Brown

    David Lat invoking the Naw Dawg doctrine was certainly a high point!

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  6. Lauragoding

    Regarding the MoFo and Perkins Coie complaints, I could see an argument for their programs in question being similar to a "fellowship" or "scholarship. Many programs falling into either of these categories exclude some racial groups or genders from applying for them because their focus is on one gender or an underrepresented race. Scholarships and fellowships seem to be able to do exclude groups where employers are barred from doing so.

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    1. Davidbenjaminlat

      Such scholarships and fellowships have certainly been around for a long time, like the MoFo and Perkins Coie programs—but I'd love to see a judicial opinion, especially one issued after the Harvard and UNC rulings, upholding them.

      For a long time, nobody bothered challenging these programs. But now that they are being challenged, I think they are vulnerable, especially if they are connected to either (1) employment or (2) education (at either a public institution like UNC or a private one receiving federal funds like Harvard).

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  7. Nordic_man

    Well I'm glad at least one of the progressive law firms acknowledged disability as a form of marginalization that matters...
    And you wonder why I look at the progressive movement with side eye despite agreeing with them a lot.

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    Bill Dyer (aka Beldar)

    Mr. French: Sometimes you get lost in the abortion weeds, and miss the trees and the forest.

    The forest in Dobbs is the throat-slitting it gave substantive due process, which of course has implications far, far beyond abortion.

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  9. Ejscharf

    I was in-house employment counsel for a large employer for more than three decades. When I heard your discussion of the MoFo and Perkins Coie internship programs, my jaw dropped at the firms' sheer hubris. Every few years, starting in the 1980's, my clients would float the idea of only hiring people who checked certain boxes. And my response would be the same: This would be indefensible. Long before the Harvard/UNC decision, employment law - statutory and constitutional - was clear that you cannot pick someone because of their race, sex, etc. The way I explained this to them was by asking whether they thought they could avoid hiring someone because of their race. They always replied in the negative. My response was always that would be exactly what they'd accomplish if they preferred some applicants over others, because of race.

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      Holly Merriman

      I couldn't help but wonder how this got past their legal department.

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      Bill Dyer (aka Beldar)

      Hubris? At BigLaw?!?

      Shocked, shocked I am.

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      1. Biglaw_Blues

        Heresy.

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          Bill Dyer (aka Beldar)

          Un-Bottsian, it was said of such things where I first practiced.

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    Bill Dyer (aka Beldar)

    Y'all are making me slightly crazy.

    The question pending before U.S. District Judge Steve Jones of the Northern District of Georgia, Atlanta Division, isn't whether the prosecution from Fulton County Superior Court, with all its defendants, will be removed. IT ALREADY HAS BEEN.

    The question now is only whether the entire "criminal prosecution" will be remanded back to Fulton County Superior Court.

    And I don't think it is unclear at all: The whole "criminal prosecution" has been removed. Federal removal jurisdiction brings up all the defendants if even one qualifies, per, e.g., Akin v. Ashland Chem. Co., 156 F.3d 1030 (10th Cir. 1998):

    ===begin quote===
    This statutory exception allows a federal officer independently to remove a case to federal court even though that officer is only one of several named defendants. The Congressional policy permitting federal officer removal could easily be frustrated by simply joining non-federal defendants unwilling to remove if consent of co-defendant(s) were required. Thus in Bradford v. Harding, 284 F.2d 307, 310 (2d Cir.1960), the Second circuit ruled that "[t]he 'general government' must be able to assure each of its officers that a federal forum will be available if he wishes it, whether others sued with him wish it or no." Likewise, in Fowler v. Southern Bell Tel. & Tel. Co., 343 F.2d 150, 152 (5th Cir.1965), the Fifth circuit held "it is settled that the filing of a petition for removal by a single federal officer removes the entire case to the federal court." In Ely Valley Mines, Inc. v. Hartford Accident & Indem. Co., 644 F.2d 1310, 1315 (9th Cir.1981), the Ninth Circuit reasoned that "[s]ince the federal officer is the only one entitled to remove under § 1442, he alone can remove without other defendants joining in the petition, and the entire case is removed to the federal court." In City of Aurora v. Erwin, this court noted the importance to the United States and the absolute nature of federal officer removal jurisdiction, quoting the Supreme Court that exercise of such jurisdiction "'should not be frustrated by a narrow, grudging interpretation.'" 706 F.2d 295, 296 (10th Cir.1983) (quoting Arizona v. Manypenny, 451 U.S. 232, 242, 101 S.Ct. 1657, 68 L.Ed.2d 58 (1981)). On the basis of the foregoing, we hold that G.E. [as one of several dozen co-defendants] properly removed the case to federal court without the consent of co-defendants.
    ===end quote===
    Link: https://scholar.google.com/scholar_case?case=14937677239245682991

    The Fulton County Superior Court retains sufficient jurisdiction to proceed simultaneously, independently, up through but not including entry of a final judgment of conviction, per the 2011 amendment to the Judiciary Act which added 28 U.S.C. § 1455. Per 28 U.S.C. § 1455(b)(5), "If the United States district court determines that removal shall be permitted, it shall so notify the State court in which prosecution is pending, which shall proceed no further."

    (Why the odd phrase, "removal may be permitted"? Because in federal officer removals, the court has an independent duty under section 1455(b)(4) to "examine the notice promptly" for possible summary remand even if no motion to remand is filed.)

    It is unclear to me what the additional defendants who've filed removal petitions think they're doing, or why Judge Jones is planning to hold additional evidentiary hearings. I don't think the removal becomes retroactively improper even if Willis were to voluntarily dismiss all charges against the removing (purportedly federal officer or acting under) defendants. And thus, I don't think that even if he severed off some defendants into separate cases (e.g., to protect some defendants' speedy trial demands), those would suddenly become remandable.

    I disagree with Mr. Lat: I think this case stays in federal court, and if Judge Jones remands it, Meadows et al. will appeal on an emergency basis to the Eleventh Circuit. And they'll win. Wearing a campaign hat at the same time you're wearing a federal law enforcement hat doesn't turn a removable case into a nonremovable one. And all y'all who are saying, "But c'mon, they KNEW they were just doing candidate Trump's business," that's not the test, nor sufficient. To evaluate a "colorable claim," you don't say, "But the jury is going to disbelieve these witnesses claiming they were enforcing federal voting rights laws (the same ones Trump's charged with violating in DC)."

    No, we can not read ANYTHING AT ALL into Judge Jones' denial of Meadows' attempt to keep him from going through booking. That's a complete red herring.

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    1. Biglaw_Blues

      Yep. That's why it's a *Notice* of Removal.

      Otherwise, I agree with your post.

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