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Marty Lederman Profile picture
@marty_lederman
Jul 25, 2018 • 4 tweets • 2 min read Twitter logo Read on Twitter
1/ Most important parts of Judge Messitte's ruling today in the #EmolumentsClause case are (i) the purposive test he applies on pp. 38-39 (emolument=thing of value that has realistic "potential to unduly influence a public official," thereby . . .

courthousenews.com/wp-content/upl…
2/... thereby excluding most de minimis things); and (ii) his alternative holding in fns. 14 & 44 that even under DOJ's original "because of holding office" test, plaintiffs would win if they prove their allegations (something I discussed here: takecareblog.com/blog/how-the-d…)
3/ Also, and importantly, because the case is still in a preliminary posture, no word yet from the judge on what the remedy would be if plaintiffs prevail.
4/ P.S. Judge Messitte generously gives amicus argument that POTUS isn't limited by the FEC more attention than it warrants, and properly rejects it.

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More from @marty_lederman

Marty Lederman Profile picture
Oct 1, 2018
1/ Genuinely befuddled what, exactly, Rachel Mitchell thinks is not demonstrated by a preponderance: She appears to think--unlike all(?) the GOP Senators--not only that Ford wasn't assaulted in 1982, ...

assets.documentcloud.org/documents/4952…
2/ ... but that Ford probably wasn't at the gathering in question at all before she got her driver's license, because "most importantly" she can't recall how she got to or from the house. Curious: How many of us recall how we got to or from *any* gatherings in HS ...
3/ ... to which we didn't drive ourselves? I got driven to countless such gatherings and could not tell you from whom I got 95+% of such rides even though I didn't drink at all. Does that make it more likely than not I didn't really attend them? ...
Read 7 tweets
Marty Lederman Profile picture
Sep 23, 2018
1/ If I were a judge and learned that a clerkship applicant had read all--or even more than a handful--of my opinions, it'd be virtually disqualifying: pandering that demonstrated horrendous judgment and overweening ambition.

tps://twitter.com/amychua/status/1043641537102532608
2/ Do other profs actually give such advice? Of course, if there are a handful of egomaniacal judges who expect applicants to have absorbed their life's work, students should be alerted about them, but I wouldn't be terribly eager to advise clerking for such a judge.
3/ Wholly apart from the "how to dress" controversy, if this is truly the sort of advice that #YaleLawSchool students are receiving these days--the example they're being encourage to follow--then I don't envy the challenge for @GerkenHeather in recovering the school's bearings.
Read 4 tweets
Marty Lederman Profile picture
Sep 22, 2018
1/ Thought I'd try to unpack a bit further the source of the controversy & confusion re: the @nytimes' Rosenstein piece.
@adamgoldmanNYT @nytmike @maggieNYT @charlie_savage @AllMattNYT @MarkMazzettiNYT @jacklgoldsmith @just_security @rgoodlaw @DevlinBarrett @mattzap
2/ The upshot is that I suspect a huge part of the problem, and source of the skepticism of many, is--as is often the case--the vague & confusing way that reporters identify and discuss their sources.
3/ There doesn't appear to be any question that RR made the comments about wires and the 25th in one or two meetings on 05/16/17. RR himself doesn't even dispute it--he insists only that “I never pursued or authorized recording the president ...
Read 25 tweets
Marty Lederman Profile picture
Sep 21, 2018
1. A few thoughts on the Rosenstein story:
First, the Times headline and lede are surprisingly, and regrettably, far too credulous and unequivocal, asserting that RR in fact made serious suggestions about wearing a wire and moving toward use of the 25th.
@adamgoldmanNYT @nytmike
2. As @adamgoldmanNYT and @nytmike explain, however, their account is not based on interviews w/anyone who actually heard RR, but instead with "people briefed either on the events themselves or on memos written by F.B.I. officials, including Andrew G. McCabe."

@just_security
3. Perhaps RR meant those things--but there's no particular reason in the Times account to think so, and it's almost inconceivable he'd be so stupid and/or naive to make such suggestions seriously in that setting.
Read 17 tweets
Marty Lederman Profile picture
Sep 15, 2018
1/ Acc. to @adamdavidson, NPR and Politico's inaccurate reports that the cooperation agreement was limited to noncampaign-related info was based on tips from S.H. Sanders and Rudy! Which begs the questions: (1) Why on earth would they (and others) ...

newyorker.com/news/news-desk…
2/ ... *ever* rely on info offered by Sanders and Giuliani, who are obviously ignorant and/or disingenuous in virtually *every* case; and (2) why don't they run stories about how (named) sources have misled them--something that would truly be newsworthy and ...
@just_security
3/ ... might actually have the salutary effect of deterring such bullshitting. Good rule of thumb for all writers and readers: The *only* reliable sources here are the public filings and statements by Mueller's team, which (appropriately) doesn't leak.
@just_security @lawfareblog
Read 5 tweets
Marty Lederman Profile picture
Sep 6, 2018
1/ I don't understand why Judge Kavanaugh continues to say that he's never taken a position on whether a sitting POTUS can be indicted. In his '98 GLJ article he wrote that "The Constitution itself seems to dictate . . .

@just_security @liptak @charlie_savage
2/ "... that congressional investigation must take place in lieu of criminal investigation when the President is the subject of investigation, and that criminal prosecution can occur only after the President has left office." (citing art. I, § 3, cl. 7, which doesn't say ...
3/ ... let alone "dictate" that). His later writings are more equivocal, and I assume he'd now repudiate what he wrote in '98; but then his view was that the Const. appears to "dictate" not only that prosecution be delayed until after office, but that even *investigation* ...
Read 7 tweets

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