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 ...

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.

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.

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

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

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 ...

1/ Probably because it would undermine their argument that he's acting in his personal capacity. Much more conspicuous, and alarming, is that DOJ doesn't even address the three things that, in my view, indicate Trump uses @realDonaldTrump in his official, not personal, capacity:

https://twitter.com/JameelJaffer/status/1026954194471800833

2/ First, in June 2017, Press Sec. Spicer said that Trump's tweets should be understood as “official statements by the President of the United States”—a statement Trump has not (to my knowledge) repudiated, presumably because he wants to convey that the tweets are written ...

1/ @adamdavidson is just right about the analogy between the tape disclosure in early Aug. '74 and the tweet in early Aug. '18. So why won't a presidential resignation occur three days later this time, even though ...

newyorker.com/news-desk/swam… 2/ ... even though Nixon had just been supported by 61%, compared to Trump's 46%?Because in '74, much of the establishment GOP, incl. in Congress, knew that the Party needed to sustain support of a majority--e.g., the voters between 42-58%--in order to be viable. Not today, ...

1/ In his speech today, AG Sessions said; "Let us be frank. A dangerous movement, undetected by many, is now challenging and eroding our great tradition of religious freedom. There can be no doubt."

Let us be frank: This is unadulterated nonsense. 2/ There's no such "movement," undetected or otherwise. And I say that as someone who proudly worked for many years in DOJ to protect religious liberty. The AG's speech is dishonest (or at best sincere but mistaken) in several respects.

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…)

1/ If I'm being *very* generous and imaginative, I can imagine a facially legitimate basis for a President deciding not to have aides present in the room when he meets w/an adversary leader such as Putin. It's a stretch, and it surely wouldn't be Trump's reason, but I can see it. 2/ I'm curious, however: There are obviously very significant costs to not having even a *stenographer* in the room transcribing the discussion--not least of which is that there's no way for the IC and other agencies to know w/confidence what happened.

@dandrezner 1. Oy. First things first: There's no good reason anyone should be listening to Dershowitz on this. It's not that he isn't an "authority" (he's not--but if he had done the work, that wouldn't matter); it's that he hasn't done any serious analysis--he's trading on celebrity. @dandrezner 2. OK, on to the "merits." He's conflating a bunch of different things. Mostly, the merits and the remedy. Merits: If Trump exercised one of his Art. II powers--pardon/removal/diplomacy/etc.--for purposes of trying to stymie an investigation because ...

1/ Best Fourth of July Songs. @paranoiacs, I assume you and Tim have already conjured the canonical list, proven beyond a shadow of a doubt in your lair/laboratory. But thought I'd give it a shot anyway. Rules: Song must take place on July 4 or in some meaningful sense evoke it. 2/ NOT a song that's designed to be sung on the Fourth or a song that uses "Independence Day" as metaphor. There are probably 4,829 songs that qualify, most of which I haven't heard, but I'm fairly confident this is No. 4829, and you can tell by the time the first line is sung:

1/ First argument in the memo--"AG concluded it's illegal because CTA5 said so," notwithstanding extensive DOJ opinions and briefs for the U.S. to the contrary--remains absurd, and arbitrary/capricious, as @adambcox, @cmrodriguez95 and I explained and as several courts have held.

https://twitter.com/shobawadhia/status/1010487936196988928

2/ See balkin.blogspot.com/2017/10/a-prim….
The five grafs beginning in middle of p.2, however, ought to resolve most or all of the current #DACA litigation. Inexplicable why it took them 10 months, and countless court challenges, to write it.

1/ A smattering of thoughts on Justice Gorsuch's very engaging/intriguing separate opinion in #Carpenter. First, I'm not typically fond of his writing, but the first 11 pages or so are really worthwhile, ...

@OrinKerr @paulohm @WilliamBaude @NateWessler @isamuel @FirstMondaysFM 2/ ... in that they convey the confusion/disdain almost all students/newcomers sense when they first confront Smith/Miller and REP, and are very honest in reflecting how NG was striving to work though the problems w/o the constraints of dubious doctrines.

1/ J. Kagan's opinion on the Marbury question in Ortiz is masterful and a delight to read. Three noteworthy things it doesn't contain, however:

@WilliamBaude @adityabamzai @FirstMondaysFM @steve_vladeck 2/ (i) An explanation of *why* Art. III permits the territorial and court-martial schemes (which in fairness wasn't raised). Kagan notes in passing, as the Court often has, Congress's Art. I powers, but that's never been an adequate answer, as it proves too much.

1/ Everything Schmidt wrote is, of course, true, including that the only serious option for former R's who realize the GOP is "corrupt, indecent and immoral" (and "vile") is to work for Democratic majorities. Problem is ...
@benjaminwittes

washingtonpost.com/news/the-fix/w… 2/ ... the possible audience for Schmidt's plea doesn't amount to more than a few thousand elites--not enough to turn a single district. It remains absolutely essential that he and others have the courage to sound the alarm; but let's not kid ourselves about the possible impact.

(1) First thoughts on transition email kerfuffle--but much more knowledge of underlying docs would be necessary to opine with confidence. @washingtonpost headline and lead are deeply misleading--bordering on irresponsible. Even Langhofer letter . . . (2) does not accuse Mueller of "unlawfully obtaining" the emails--or of doing anything unlawful, for that matter. Unless I'm missing something, @washingtonpost should prominently correct and apologize immediately.