Eugene Volokh's Blog, page 82

[David Bernstein] Fired Prof. Maura Finkelstein: A Martyr for Academic Freedom?

The New York Times has a profile of fired Muhlenberg professor Maura Finkelstein that portrays her as a martyr for academic freedom.

Here is what David L. Bernstein and I wrote about her case in our forthcoming article:

Finkelstein claims that her dismissal was a response to her re-posting the following from another source:

Do not cower to Zionists. Shame them. Do not welcome them in your spaces. Do not make them feel comfortable. Why should those genocide-loving fascists be treated any different than any other flat-out racist. Don't normalize Zionism. Don't normalize Zionists taking up space.

We are not in a position to judge whether Finkelstein's dismissal was solely or primarily the result of this posting. Regardless, if taken at face value, Finkelstein's claim raises the question of where to draw the line between faculty statements of political opinions that should be protected and faculty statements that give rise to reasonable inference that they are unwilling or unable to follow federal law and university rules prohibiting discrimination against Jewish and Israeli students.

FIRE argues that although "Finkelstein's speech may be offensive," her post is protected by Muhlenberg's promises of free speech and academic freedom. The authors, by contrast, believe that Finkelstein's speech at least raises the implication that she would not welcome "Zionists" "taking up space" in her classroom, and obviously faculty members are not permitted to exclude or even discriminate against Zionist students–even if you ignore the question of whether discrimination against Zionists constitutes discrimination against Jews under federal law.

At the very least, then, Finkelstein's rant provides ample justification for the university to inquire and investigate as to whether (a) Finkelstein was willing to affirm that her remarks do not apply to her obligations as a Muhlenberg professor; and (b) that she had not taken and did not intend to take exclusionary or discriminatory measures against "Zionist" students.

And that's taking Finkelstein's claim at face value, which I have reason to believe is very unlikely to be the whole story. But I would agree that this tweet alone, absent evidence that it reflected her actual behavior toward students, was not sufficient reason to fire a tenured professor.

The post Fired Prof. Maura Finkelstein: A Martyr for Academic Freedom? appeared first on Reason.com.

[Eugene Volokh] Naples (Florida) Restrictions on Drag Performance at Pride Fest Can Take Effect

[An Eleventh Circuit panel (by a 2-1 vote) issues a stay of the preliminary injunction that the district court issued in Naples Pride's favor.]

From today's Eleventh Circuit decision in Naples Pride, Inc. v. City of Naples by Judges Robert Luck and Andrew Brasher:

In 2023 and 2024, Naples Pride, Inc. applied for a permit under the City of Naples, Florida's special event ordinance to hold a drag performance at a city park. Both years, the city granted a permit but with two conditions: first, that the drag performance had to be held indoors, and second, that attendance had to be limited to adults eighteen years or older. The performance went on with those two conditions.

The same thing happened in 2025. Naples Pride applied for a permit to hold the same drag performance at the same city park on June 7, and, in January 2025, the city granted the same permit with the same two conditions. The only difference this time was that, in April 2025, Naples Pride sued the city, claiming that it violated the group's First Amendment free speech rights by adding the two permit conditions under the special event ordinance. Naples Pride moved to preliminarily enjoin the city from enforcing the two conditions, and the district court granted the motion. The district court concluded that: the drag performance was protected expression under the First Amendment; the event was a traditional public forum; and the two permit conditions were viewpoint- and content-based restrictions.

The city now moves to stay the preliminary injunction. "Under the traditional standard for a stay, we consider four factors: (1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies." But "when the balance of equities weighs heavily in favor of granting the stay—we relax the likely-to-succeed-on-the- merits requirement. In that scenario, the stay may be granted upon a lesser showing of a substantial case on the merits."

Here, for three reasons, the city has a substantial case on the merits that the district court abused its discretion in preliminarily enjoining the permit conditions. First, "[a] delay in seeking a preliminary injunction of even only a few months—though not necessarily fatal—militates against a finding of irreparable harm," which is a "require[d]" element for "[a] preliminary injunction." Naples Pride delayed seeking an injunction by more than "only a few months." The city added the conditions to Naples Pride's permit in 2023—two years ago—yet Naples Pride did not move to preliminarily enjoin the permit conditions until April 2025. Even after the two conditions were added by the city in January 2025 for this year's drag performance, Naples Pride still delayed in moving for a preliminary injunction by "a few months." The group filed its motion in April 2025.

Second, the city has a substantial case that the two permit conditions were not imposed based on Naples Pride's viewpoint. A viewpoint-based condition is one that "targets not merely a subject matter, but particular views taken by speakers on a subject." Here, the two conditions were not targeted at Naples Pride's views expressed through drag performances. As Naples Pride explained when the permit conditions were initially added, they were "necessary" "due to safety concerns" and to "put the safety of [its] guests first." Naples Pride "d[id] not believe" the police department's security-related concerns—which were the reasons for the city's permit conditions—resulted from "discriminat[ion]."

The dissent responds, quoting Kennedy v. Bremerton School District (2022), that the First Amendment does not allow a heckler's veto to proscribe protected activity "based on 'perceptions' or 'discomfort.'" But the city did not add the two permit conditions because of perceptions or discomfort. The conditions were added, as Naples Pride agreed, because they were "necessary" to address "safety concerns" and to ensure "the safety of [its] guests." In any event, the two conditions did not veto the drag performance. The performance went on as scheduled in 2023 and 2024, and will this year too.

Third, the city has a substantial case on the merits that the special event is a limited public forum. A "limited public forum" has one of "two features": "whether the forum is limited to a specific class of speakers, and whether the forum is limited to speech on specific topics." "If either (or both) is present, we have a limited public forum." Here, the drag performance has both. Like the "city council meetings" in McDonough, the special event is limited to a specific topic—"a celebrat[ion of] the LGBTQ+ community" to "express themselves without fear"—and it is limited to a class of speakers, musicians, and performers selected by the event organizer.

In a limited public forum, the city's "restrictions on speech must not discriminate against speech on the basis of viewpoint and must be reasonable in light of the purpose served by the forum." Here, as we explained, the two permit conditions were not added based on Naples Pride's viewpoint. And they were reasonable in light of the special event. As Naples Pride agreed when the two conditions were first imposed, they were "necessary" "due to safety concerns" and to "put the safety of [its] guests first."

{The dissent says that Naples Pride is likely to succeed on the merits because we, in a different case, affirmed an order enjoining Florida Statute section 827.11's "lewd conduct" restriction. See HM Fla.-ORL, LLC v. Governor of Fla. (11th Cir. 2025). But this case is about the city's special event ordinance as applied to Naples Pride's special event. It has nothing to do with section 827.11, and our decision in HM Fla.-ORL says nothing about whether the district court abused its discretion by granting a preliminary injunction here.}

The remaining stay factors weigh heavily in favor of granting a stay. "[T]he inability to enforce its duly enacted [ordinance] clearly inflicts irreparable harm on the [city]." Naples Pride will not be substantially injured by a stay because it can hold the drag performance under the same two permit conditions that applied to the last two performances, in 2023 and 2024. And the public has an interest in the enforcement of the city's ordinance and the safety of residents and visitors in the city….

Judge Nancy Abudu dissented:

The district court's order granting a preliminary injunction against the City of Naples from enforcing a content and viewpoint-based restriction against Naples Pride in violation of the organization's First Amendment rights should not be disturbed by the issuance of a stay. For the very well-stated reasons the district court set forth in its own order denying the City's motion for a stay, so too should this Court….

As the district court concluded, the City's requirements that the performance be held only inside and that only those 18 years old and over can attend are undeniably viewpoint and content- based "and thus, unconstitutional, whether the forum is a traditional or limited public forum." … "It is the perceived expressive conduct of the drag performance, and the potential hostile reaction it may engender in others, that caused the City to restrict the drag performance to the inside of a small building, and to disallow a performance at Cambier Park's bandshell."

Second, a panel of this Court already ruled that the "lewd conduct" restriction on speech in Fla. Stat. § 827.11 is likely unconstitutionally overbroad, even as to minors. HM Fla.-ORL. Unless and until HM Fla.-ORL is vacated or reversed, that decision remains a valid basis for the district court's conclusion that Naples Pride is likely to succeed on the merits of its First Amendment claims.

Further, while threats of violence should be taken seriously, courts also have been extremely cautious about not elevating a "heckler's veto" into an extra factor of consideration when determining whether a gathering for the public should be so severely clamped down that the expression is unduly hampered. See Kennedy (noting in the Establishment Clause context, the First Amendment does not include "a 'modified heckler's veto, in which religious activity can be proscribed' based on 'perceptions' or 'discomfort'").

Moreover, as the district court highlighted, the Naples Police Department explicitly confirmed that officers would be able to accommodate the performance at an outdoor venue, especially given it confirmed additional out-of-town officers were standing by in case their help was needed. For these reasons, the City failed to make a "strong" showing of a likelihood of success on the merits.

As to the second factor, irreparable injury, the City failed to satisfy its burden by simply asserting that it suffers an injury any time it is being enjoined. Importantly, as the district court stated, "no such harm is shown where an underlying ordinance is 'unconstitutional.'" Overall, Naples Pride's First Amendment rights are being violated, which is a substantial deprivation of its fundamental right, not the City's.

As to the last two factors—harm to the opposing party and the public interest—"neither the government nor the public has any legitimate interest in enforcing an unconstitutional ordinance." The City asserts Naples Pride will not be substantially injured and bases this argument on the timing of the organization's suit. The district court properly addressed and rejected this argument; Naples Pride has shown substantial injury that was not undermined by the timing of its suit given the organization's reasonable pre-suit conduct.

Finally, granting the City's motion for a stay is not in the public's interest, especially when reminded that the "public" includes all people, not just those like the proposed intervenors who adamantly oppose drag performances even when they can opt not to watch them. In addition, relief to Naples Pride "is definitionally incomplete if" that relief "forces [it] to continue holding [its] First Amendment rights in abeyance."

I tend to agree with the dissent as to the restriction being a viewpoint-based and therefore unconstitutional heckler's veto, but I'm not completely confident as to the result because I'm not sure what to make of the majority's argument related to the delay by Naples Pride and Naples Pride's statements related to "safety concerns."

Andrew William Justin Dickman, Matthew Rodrick McConnell, and Odelsa Flores-Dickman (Dickman Law Firm) and David Jadon represent defendants.

The post Naples (Florida) Restrictions on Drag Performance at Pride Fest Can Take Effect appeared first on Reason.com.

[Ilya Somin] Kilmar Abrego Garcia Back in the United States

[The Trump Administration returned the illegally deported migrant from imprisonment in El Salvador after repeatedly claiming they could not do so.]

Kilmar Abrego Garcia. (NA)

 

Salvadoran immigrant Kilmar Abrego Garcia—illegally deported by the Trump Administration to imprisonment in El Salvador without any due process—is now back in the US. After the Supreme Court ruled that the Administration had to "facilitate" his return, the administration repeatedly insisted they had no power to do so, and otherwise verged on defying court orders. But as Trump admitted, in reality the administration could have secured his return any time they wanted to. Salvadoran President Nayeb Bukele was  keeping Abrego Garcia in prison only because of arrangement with Trump, under which the US paid him to detain Garcia and hundreds of other migrants deported without due process, in violation of the Fifth Amendment.

The Venezuelans deported under the Alien Enemies Act are also victims of an illegal invocation of that law (see my recent amicus brief on that subject); most have never been convicted of any crime, and many (possibly a majority) entered the US legally.

As the Abrego Garcia case shows, Trump could easily return these people to the United States simply by asking the Salvadoran government to release them, and making clear he means it. Courts should tolerate no more excuses on that subject!

The outcome of this case also shows that the administration is susceptible to judicial and political pressure, even in the immigration field. The lawyers, activists, and others who pursued this matter—initially against seemingly insurmountable odds—deserve great credit. The rest of us should learn from their success, and build on it.

ABC reports that Abrego Garcia will now face charges for supposed involvement in a scheme to illegally transport "thousands" of undocumented migrants. We shall see whether those charges have any merit. Perhaps I am too cynical. But I suspect that if the Administration actually had strong evidence of extensive illegal activity by Abrego Garcia, they would have revealed it a long time ago, rather than keep on suffering legal and PR setbacks. The prosecution may be a face-saving maneuver. We shall see when it gets to court. At any rate, even a possibly questionable prosecution in a court with proper due process is far better than deportation to imprisonment with no due process at all.

Elsewhere, I have argued that the sort of activity Abrego Garcia is charged with should not be a crime at all, because most of our immigration restrictions are unconstitutional and deeply unjust. But even those who differ with me on these points have reason to oppose deportation without due process, especially when it is deportation to imprisonment, of the kind inflicted on Abrego Garcia and hundreds of others.

If left unchecked, such policies can become a tool for deporting and imprisoning anyone the administration chooses to target, including even legal immigrants and US citizens. As prominent conservative Fourth Circuit Judge J. Harvie Wilkinson pointed out in his concurring opinion in the Abrego Garcia case:

The facts of this case thus present the potential for a disturbing loophole: namely that the government could whisk individuals to foreign prisons in violation of court orders and then contend, invoking its Article II powers, that it is no longer their custodian, and there is nothing that can be done. It takes no small amount of imagination to understand that this is a path of perfect lawlessness, one that courts cannot condone.

The best way to decisively close that loophole is for courts—and the rest of us—to compel the return of all those illegally deported without due process, and ensure that such a thing can never happen again.

UPDATE: ABC reports that a high-ranking prosecutor in the Nashville, Tennnessee US attorney's office, where Abrego Garcia will be tried, recently resigned because he believes the indictment against Abrego Garcia was brought  for political reasons. That doesn't definitively prove the charges are bogus. But it should heighten our suspicions.

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[Eugene Volokh] Trump Media's Suit Can Proceed Against Wash. Post Over "Trust Linked to Porn-Friendly Bank Could Gain a Stake in Trump's Truth Social" Story

From Judge Tom Barber (M.D. Fla.) in Trump Media & Tech. Group Corp. v. WP Company LLC:

This lawsuit for defamation by Plaintiff Trump Media & Technology Group Corp. ("TMTG") against Defendant WP Company LLC (the "Post") arises from an article titled "Trust linked to porn-friendly bank could gain a stake in Trump's Truth Social," published by the Post on May 13, 2023 …. The second amended complaint narrows TMTG's defamation claim to two statements from the Post's article relating to a purported finder's fee paid to Entoro Securities to secure an $8 million loan. Those statements are:

"The companies also have not disclosed to shareholders or the SEC that Trump Media paid a $240,000 finder's fee for helping to arrange the $8 million loan deal with ES Family Trust"; and "The recipient of that fee was an outside brokerage associated with Patrick Orlando, then Digital World's CEO"

TMTG alleges these statements were false and were made with actual malice, that is, with knowledge they were false or with reckless disregard as to whether they were false….

The Post's article purported to be based on sources that included internal documents shared with the Post by former TMTG officer Will Wilkerson. The article did not point to any witness statement or written confirmation that TMTG made the finder's fee payment, but it did refer to an invoice from Entoro and a referral fee agreement calling for the payment.

The existence of such an agreement would tend to negate actual malice on the part of the Post in stating that the fee was paid. Absent specific evidence to the contrary, the Post might reasonably have believed that TMTG paid the fee because it had agreed to do so. The Court's prior dismissal orders emphasized that TMTG had not challenged the truth of the article's statements regarding the fee agreement, but gave TMTG leave to amend to allege that no agreement existed if it could do so in good faith.

TMTG's second amended complaint now squarely alleges that no fee agreement existed and that the Post's statements in the article about such a document were therefore false. TMTG further alleges, "[s]imply put, [the Post] reviewed the internal documents from Wilkerson but would not have seen any documents showing a finder's fee had been paid or agreed to be paid because no such documents existed, and this gave [the Post] knowledge that such documents did not exist. [The Post's] Statements to the contrary were knowingly false or, at the very least, evinced a reckless disregard for the truth."

The new allegations undermine the Post's argument that actual malice has not been alleged. They substantially undercut the basis the Post might have had for concluding that TMTG actually paid the fee. Equally important, they plausibly allege that the Post's reference to the fee agreement was knowingly false. This, in turn, casts doubt on the Post's subjective state of mind and whether the Post in fact believed the fee had been paid as it stated in the article.

The Post's arguments in its motion to dismiss that TMTG still fails to plead facts showing actual malice seem to ignore the significance of TMTG's new allegations. In fact, there is a strange disconnect between the Post's motion and TMTG's latest complaint. As just one example, the Post argues that TMTG does not dispute that the Post's reporting was informed by "documentary sources provided by a knowledgeable executive at the company and his attorneys." But, of course, TMTG alleges that one of the alleged "documentary sources," the fee agreement described and quoted in the article, did not even exist. As pleaded, TMTG's allegations sufficiently state the existence of actual malice and plead a viable claim for defamation.

TMTG's response to the Post's motion to dismiss, however, adds another wrinkle. Having argued that the article's statements about a fee agreement are "fabrications," TMTG changes horses somewhat and says that the document referred to in the article was actually an undated and unsigned draft fee agreement. The Post's reply triumphantly announces that TMTG has "finally" admitted the truth. Assuming TMTG's "admission" is, in fact, the truth, it has taken three rounds of briefing to extract it from either side, neither of which it seems has been candid with the Court on this issue.

The Court concludes, however, that it makes no difference. The second amended complaint says nothing about a "draft" or "unsigned" fee agreement. A complaint's sufficiency is determined by its allegations, not by statements in a response brief. The Court is not inclined to allow another round of pleading and then the inevitable follow-on round of motion practice to sort this out. The Court will have to review the documents and consider the testimony of the witnesses at the summary judgment stage of these proceedings.

In addition, even if the Court were to pretend TMTG had pleaded the existence of an unsigned draft agreement, the Court would reject the Post's arguments for dismissal. The Post argues that reliance on an unsigned draft agreement to conclude payment was made is unremarkable, and it points to the fact that the "note" documenting the $8 million loan was not completely signed either. But the article expressly stated that the note was not fully executed and described it as an "offer" of funds, unlike the Post's unqualified reference to the fee "agreement." Further, no one disputes the loan was made and receipt of the proceeds was shown by wire transfer documents. The Post's more careful treatment of the loan and its documentation cuts in favor of actual malice as to the finder's fee statement, not against it.

The Post next argues that the invoice from Entoro "corroborat[ed] the agreement's existence." Maybe so, but the Post has not filed any invoice with the Court. Perhaps that is because the actual document would undermine the Post's arguments. As noted, neither side has been particularly candid on this issue, and the Court is now unable to take either side's assertions at face value. The existence of some kind of invoice, without more, does not negate the inference of actual malice arising from the Post's unqualified (and therefore false) statement regarding the existence of an actual agreement to pay the fee.

Finally, the Post argues that it relied on Wilkerson, a knowledgeable source. But the article does not attribute to Wilkerson any specific statements regarding the agreement or the payment.

The Post's motion to dismiss TMTG's defamation claim in Count I of the second amended complaint is therefore denied.   This is not to say that TMTG will ultimately prevail or even make it to a jury. The Court merely concludes that, notwithstanding the hurdles facing a public figure defamation plaintiff, TMTG's allegations sufficiently "nudg[e]" its claims "across the line from conceivable to plausible."

The court also declines to dismiss TMTG's conspiracy claim:

The Post argues that TMTG's companion claim for conspiracy to commit defamation fails on several grounds, each of which the Court rejects. Because the Court has upheld TMTG's defamation claim, there is an underlying tort to support the conspiracy claim. The "single publication rule" prohibits a companion claim based on defamatory statements only when the defamation claim fails, which is not the case here. Finally, TMTG's allegations identify the alleged conspirators, state that they "combined, associated, agreed, or acted in concert" to injure TMTG, that the Post performed an overt act in furtherance of the conspiracy by publishing the defamatory article, that Wilkerson supplied leaked documents to the Post, and that the parties jointly crafted a fraudulent narrative about securities fraud. TMTG's allegations are not conclusory and plausibly allege a claim for conspiracy, at least between the Post and Wilkerson.

The post Trump Media's Suit Can Proceed Against Wash. Post Over "Trust Linked to Porn-Friendly Bank Could Gain a Stake in Trump's Truth Social" Story appeared first on Reason.com.

[Eugene Volokh] Limits on the President's Power to Remove Inferior Officers (Even When He Has Power to Remove Department Heads)

In yesterday's Aviel v. Gor, D.C. Circuit Judge Gregory Katsas, joined by Judge Nina Pillard, held that the President likely lacked the power to fire the CEO of the Inter-American Foundation, though he had the statutory authority to fire the Foundation's Board of Directors:

This case involves a dispute over whether plaintiff Sara Aviel is presently the Chief Executive Officer of the Inter-American Foundation (IAF), a government corporation that issues grants to further development in the Caribbean and Latin America. The IAF is run by a Board of Directors appointed by the President with the advice and consent of the Senate. In turn, the Board appoints and supervises the Foundation's CEO.

In February 2025, the President removed all the incumbent IAF Board members, as permitted by statute. The President then purported to unilaterally designate Pete Marocco as an acting member of the Board. Both the President and Marocco then purported to remove Aviel from her position as the Foundation's CEO.

Aviel sued various government officials, including the President, and sought injunctive relief to continue serving as CEO. The district court granted a preliminary injunction requiring the defendants to recognize her as still holding that office. The government appealed and sought an emergency stay.

We deny the stay because the government is unlikely to succeed on the merits of its contentions that Aviel … was permissibly removed from her position as CEO ….

The governing statute authorizes the IAF Board of Directors—not the President—to appoint the CEO, and it is silent regarding the question of removal. That means the Board—not the President—has the power to remove Aviel. As the Supreme Court explained in Free Enterprise Fund v. PCAOB (2010), "Congress may vest in heads of departments" the appointment of inferior officers, and, "[i]f Congress does so, it is ordinarily the department head, rather than the President, who enjoys the power of removal." Likewise, in In re Hennen (1839), the Court noted that if Congress vests a department head with the power to appoint and remove an inferior officer, "the President has certainly no power to remove" the inferior officer directly….

[T]he government asserts that the President has inherent Article II authority to designate acting principal officers to ensure that he may faithfully execute federal law, as required by the Take Care Clause. That contention is unlikely to succeed. The Appointments Clause prohibits the appointment of principal officers without the advice and consent of the Senate. Such consent "is a critical structural safeguard" against presidential overreach—a feature of our constitutional system, not a bug.

Furthermore, the Constitution provides only one express exception to the Senate-confirmation requirement for principal officers, which applies only when the Senate is in recess. And the only statutory scheme for delaying Senate confirmation [the Federal Vacancies Reform Act] does not support the putative designation at issue. Given these specific checks and balances regarding appointments, it is unlikely that the Take Care Clause gives the President unfettered discretion to designate acting principal officers with neither Senate confirmation nor a Senate recess nor even statutory authorization through the FVRA.

{We have suggested that the President might possess an inherent Article II power to designate someone to temporarily exercise the powers of a vacant office in order to abate an emergency. The government does not argue that any such emergency exists here, so we do not consider this theory.}

Judge Neomi Rao dissented:

Nothing in the governing statute or the Constitution … limits the President's power to remove this executive branch officer.

The Constitution vests all the executive power in the President. As a consequence of this vesting, the President "may remove without cause executive officers who exercise that power on his behalf, subject to narrow exceptions recognized by [Supreme Court] precedents." Trump v. Wilcox (2025). The removal power is essential to the President's oversight and control of officers who exercise executive power on his behalf. See Free Enter. Fund ("Since 1789, the Constitution has been understood to empower the President to keep … officers accountable—by removing them from office, if necessary."). "Article II 'grants to the President' the 'general administrative control of those executing the laws, including the power of appointment and removal of executive officers.'" Seila Law LLC v. CFPB (2020) (quoting Myers v. United States (1926)). Under these well-established principles, the President's removal of Aviel was lawful.

The district court (and my colleagues) conclude that the President could not remove Aviel because "the Board holds hiring and firing power over the IAF's president and CEO." I agree that the Board has authority to remove Aviel as an incident of its appointment power.

Nothing in the IAF statute, our caselaw, or the Constitution, however, renders the Board's removal authority exclusive or forecloses the President's ability to remove this officer. For officers who "wield significant executive power," "the President's removal power is the rule, not the exception." {The "sound and necessary rule, to consider the power of removal as incident to the power of appointment," may always be qualified by a "constitutional provision, or statutory regulation." In re Hennen. The constitutional provision here is Article II, which provides for presidential removal of executive branch officers, particularly when no statute provides to the contrary. It is true that when reviewing a challenge to the removal of a federal district court clerk, i.e., a judicial officer, the Supreme Court stated in obiter dicta that "the President has certainly no power to remove" an inferior officer. But that statement has never been repeated as a holding of the Supreme Court and runs contrary to recent decisions reaffirming the breadth of the President's constitutional removal authority.}

Congress did not limit who may remove the CEO or on what terms. The CEO therefore remains removable at will by either the Board or the President. The President may direct and control the management of the IAF and remove officers who fail to follow his directives.

That is precisely what occurred here. The President removed all remaining IAF Board members for refusing to follow his directives to substantially downsize the IAF. Aviel remained in charge of the IAF, executing the laws without the possibility of Board supervision or removal. The President's representatives asked Aviel to confirm she would implement the President's agenda in the absence of a Board. When she refused, the President fired her.

The President rarely has cause to turn his attention to the removal of an inferior officer because such officers are directly controlled by principal officers in the chain of command. But at a minimum, when that chain of command is broken, as it was here, "[t]he Constitution requires that such officials remain dependent on the President" and subject to his control. Seila Law; see Myers ("If the President should possess alone the power of removal from office, those who are employed in the execution of the law will be in their proper situation, and the chain of dependence be preserved; the lowest officers, the middle grade, and the highest, will depend, as they ought, on the President, and the President on the community."). The President cannot "take Care that the Laws be faithfully executed" if he is saddled with subordinates who obstruct his agenda.

Aviel flatly refused to follow the President's directives. Her removal for insubordination is within the heartland of the Article II power. "The moment that [the President] loses confidence in the intelligence, ability, judgment or loyalty of any one of [his officers], he must have the power to remove him without delay." Myers. The President's removal of Aviel was lawful….

The panel was unanimous, though, that Marocco couldn't serve as an IAF Board member, absent senatorial advice and consent. From Judge Katsas' opinion:

Marocco independently purported to remove Aviel, but he likely lacked authority to act as an IAF Board member. The IAF Board reports to nobody except the President, so its members are principal officers of the United States. Yet Marocco was not appointed with the advice and consent of the Senate, as required by the Appointments Clause of the Constitution and by the Foundation's organic statute. And in the absence of any Senate recess, the President could not unilaterally appoint him to fill a vacancy pursuant to the Recess Appointments Clause.

The parties vigorously dispute whether the Federal Vacancies Reform Act separately prohibits the President from designating individuals to serve as acting members of multi-member boards like that of the Foundation. But regardless, the FVRA's temporary-designation provisions do not apply to such boards. And in any event, Marocco would not have qualified for such a designation [under the statute\. So the government does not contend that the FVRA affirmatively authorized the appointment or designation at issue.

And from Judge Rao's dissent:

The government also argues that Aviel was properly terminated by Marocco in his capacity as an acting IAF Board member. I agree with my colleagues that this argument is unlikely to succeed because the text and structure of the Constitution strongly suggest the President has no inherent authority to appoint officers of the United States, like IAF Board members, outside the strictures of the Appointments Clause. See NLRB v. SW Gen., Inc. (2017) (Thomas, J., concurring) ("[T]he Appointments Clause forbids the President to appoint principal officers without the advice and consent of the Senate."). And the Federal Vacancies Reform Act does not apply to the IAF….

The post Limits on the President's Power to Remove Inferior Officers (Even When He Has Power to Remove Department Heads) appeared first on Reason.com.

[Eugene Volokh] Government Seeks Search Warrant for Cell Phone Because It Might Have Photos of a Gun

[No, says a magistrate judge.]

From a decision by Magistrate Judge Zia Faruqui (D.D.C.) in In re: Search of One Device and Two Individuals (decided last month but just released Tuesday):

The videos [of the arrest] showed the defendant and [Redacted] on top of each other, falling down the stairs while being tackled by police officers. While they all were tumbling down, a gun fell from their area. Defendant's [Redacted] exclaimed right away that the gun was [Redacted]. The gun was in fact registered to [Redacted] and [Redacted] had a license to carry it.

The defendant was prosecuted on the theory that he was the one possessing the gun, which would be a crime because the defendant (but not the man he was fighting, whose gun this was) was a felon. Among other things, the court rejected the request for a warrant to search defendant's phone:

The affidavit here does not "demonstrate that [[Redacted]] was engaged in [illegally possessing a firearm] and keeping [evidence of that] in his [phone]." "Here, there is no evidence that [[Redacted]]" took pictures on his phone of any firearms, let alone the one for which he is charged of a crime. Indeed, there was no pre-arrest investigation at all. The universe of information to support the government's charges and this search is limited to what happened in the few seconds when law enforcement tackled [Redacted] and [Redacted] in the stairwell of [Redacted] home.

Lacking facts and evidence specific to [Redacted], the government falls back on "boilerplate language" that "provide[s] few, if any, particularized facts of an incriminating nature [specific to the defendant's phone] and little more than conclusory statements of affiant's belief that probable cause existed regarding [evidence on every defendant's phone]." Specifically, the government states:

Your affiant knows that cellphones, like the TARGET DEVICE, are relevant to firearms offenses like the TARGET OFFENSE. Specifically, people who possess firearms usually like to take pictures of themselves with firearms to prove ownership or possession of a particular firearm to their friends. They will use, for example, a cellphone camera to take photos of firearms or themselves holding a firearm, as well as photographing other criminal activity that they may be involved in. Moreover, cellphones often contain communications relating to the acquisition of firearms by those who cannot possess firearms legally, including the transmission of photographs of firearms available for purchase with accompanying price information. Indeed, in this case, [Redacted] was barred from legally purchasing a firearm due to [Redacted] prior felony conviction. It is therefore likely that [Redacted] communicated with [Redacted] regarding [Redacted] acquisition of the firearm. Such communications are typically done by chat or text. Further, your affiant knows that individuals who possess firearm often will use their phone to take photos showing off the firearm that they later post to social media. Although the photos are later posted on social media, the original photo remains on the cellphone. Given how ubiquitous social media is, including with those who possess firearms, it is likely that the DEVICE contains evidence of the TARGET OFFENSE in the form of photos of the firearm. Your affiant knows that cellphones contain valuable information and evidence relating to the TARGET OFFENSE. Such information consists of, but is not limited to: call logs, phone books, photographs, voice mail messages, text messages, images and video, Global Positioning System data, and any other stored electronic data. This information can: (i) reflect the commission of the TARGET OFFENSE; (ii) reflect the ownership and use of the cellphone by persons involved in the commission of the TARGET OFFENSE; and (iii) document or contain evidence of the obtaining, secreting, transfer, expenditure and/or the concealment of the firearm relating to the TARGET OFFENSE.

There is no need to take this to a logical extreme to see the limitless power these three paragraphs create for police. With these three paragraphs, the government seeks to fiat automatic probable cause which would justify the search of every phone in every  [felon-in-possession] investigation. But why stop there? Surely, law enforcement's experience is that many criminals—like most everyone—capture everything they do on their phone. By this sleight of hand, every criminal violation justifies a search of a phone for videos, photos, notes, etc. This unbound police power is disturbing. And it ignores that "a central aim of the Framers was 'to place obstacles in the way of a too permeating police surveillance.'"

Moreover, the government's request is a bad remix to an already rejected song. In Griffith, Judge Srinivasan stated:

In view of the limited likelihood that any cell phone discovered in the apartment would contain incriminating evidence of Griffith's suspected crime, the government's argument in favor of probable cause essentially falls back on our accepting the following proposition: because nearly everyone now carries a cell phone, and because a phone frequently contains all sorts of information about the owner's daily activities, a person's suspected involvement in a crime ordinarily justifies searching her home for any cell phones, regardless of whether there is any indication that she in fact owns one. Finding the existence of probable cause in this case, therefore, would verge on authorizing a search of a person's home almost anytime there is probable cause to suspect her of a crime. We cannot accept that proposition….

The government falls back on "training and experience" to cash their blank check for automatic phone searches…. But the extent of this affiant's training and experience could not be more opaque. The affiant merely states:

I am a Special Agent with the Bureau of Alcohol, Tobacco, Firearms, and Explosives ("ATF") and have served in that capacity since August 2022. I am currently assigned to the ATF's Washington Field Division's Group III. In that capacity, I am tasked with investigating violations of federal firearms, explosives, and arson laws, as well as other offenses enumerated in Title 18, Title 21, and Title 26 of the United States Code. My training includes successful completion of the Criminal Investigator Training Program, instructed by the Federal Law Enforcement Training Center ("FLETC"), and Special Agent Basic Training, instructed by the ATF National Academy, both located at FLETC in Glynco, Georgia. Additionally, I was previously a sworn federal police officer with the United States Capitol Police ("USCP") in Washington, D.C., from September 2018 until August 2022, and a sworn police officer with Bowie City Police Department, Prince George's County, MD from April 2016 until September 2018. I successfully completed the Uniformed Police Training Academy located at FLETC in Glynco, Georgia, in 2018; the USCP Police Academy located at FLETC in Cheltenham, Maryland, in 2019; and the Prince George's County Police Department Academy located in Upper Marlboro, Maryland, in 2016. I have received specialized training in the investigation of local, state, and federal crimes involving the trafficking of firearms and controlled substances. This includes training on the exploitation of data stored on electronic devices and information stored on cloud-based services for the purpose of criminal investigations.

So many questions:

– What was the nature of these trainings?

– Who taught the trainings? Were they certified? By whom? What was done to ensure there was not a bias in favor of law enforcement training law enforcement that evidence is always in a phone, thereby manufacturing a basis to always search phones?

– What was the science underpinning the training materials? Was anything peer-reviewed?

– Have there been changes in the training in the past several years since receiving them?

– How much of the training was specific to felon in possession cases? If none, why is that training relevant?

– What did the training say about the connection between arrest-generated possessory gun cases and cell phone usage?

The list goes on. And on.

Worse yet, there is nothing detailing what the affiant's actual experience is…. [T]he Court has no information on approximately how many felon-in-possession cases the affiant has investigated. And of those, how many times there were or were not photos of the firearm in question on a phone. These "alleged success rates [ ] would [be] material to the issuing judge's probable cause analysis." Moreover, the value of the affiant's stated experience here is low, as it is largely based on common experiences held by all: that people use cell phones to take lots of pictures….

Ultimately, six paragraphs totaling 1.5 pages on training and experience is insufficient. This is particularly true in the context of a possessory offense with no co-conspirators and where the search is of a phone….

In over four years of being a Magistrate Judge, I have made over 1,000 probable cause findings in search warrants. Not once have I rejected a warrant. Until now.

The court's credibility is based on a belief in its neutrality. But how can a court that never says "no" be neutral?

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[Eugene Volokh] No Search Warrant for Lawful Gun Owner's DNA in Prosecution of Felon Who Was Fighting with Him

From a decision by Magistrate Judge Zia Faruqui (D.D.C.) in In re: Search of One Device and Two Individuals (decided last month but just released Tuesday):

The videos [of the arrest] showed the defendant and [redacted] on top of each other, falling down the stairs while being tackled by police officers. While they all were tumbling down, a gun fell from their area. Defendant's [redacted] exclaimed right away that the gun was [redacted]. The gun was in fact registered to [redacted] and [redacted] had a license to carry it.

The underlying criminal prosecution of the defendant was for that defendant's allegedly possessing a firearm as a felon, but the government applied for a search warrant seeking, among other things, [redacted]'s DNA, which in context appears to be the DNA of the person who was fighting with defendant. (As is often the case with opinions that contain multiple redactions, one needs to guess at what each redaction relates to.)

[Redacted] has lived, worked, and survived in challenging circumstances. [Redacted] testified at the detention hearing why [redacted] obtained the firearm in question: to protect [redacted] and [redacted] home. In so doing, [redacted] dutifully followed the Supreme Court's direction that the Second Amendment "elevates above all other interests the right of law-abiding, responsible citizens to use arms in defense of hearth and home."

But despite [redacted] doing things the right way—legally purchasing and licensing [redacted] firearm—the government seeks court authorization to violate [redacted] bodily autonomy for DNA evidence. But evidence of what? A crime? There is no cause to believe [redacted] has committed or participated in a crime. The only purpose of the search is to disprove [redacted] possession of the firearm [redacted] is authorized to carry.

In an email to the Court, the government called this an "exclusionary search." But that is not a thing. "The government cannot, for example, search every unit in an apartment building because it has probable cause to believe that some unknown part of the building holds evidence of a crime."

"At bottom, the search warrant [would] authorize[] the search of [redacted] based on nothing more than [redacted] proximity to a place where criminal activity may or may not have occurred. And, as the Supreme Court has explained, 'a person's mere propinquity' to suspected criminal activity 'does not, without more, give rise to probable cause to search that person.'" Thus, the Court rejects the government's request.

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[John Ross] Short Circuit: An inexhaustive weekly compendium of rulings from the federal courts of appeal

[Frigid cells, raw sewage in cells, and expressive activity on public beaches.]

Please enjoy the latest edition of Short Circuit, a weekly feature written by a bunch of people at the Institute for Justice.

Victory! Five years ago, a SWAT team blew up Vicki Baker's house in an attempt to apprehend a fugitive. But, sad news, last year SCOTUS declined to take up the question of whether destroying an innocent person's house is a Fifth Amendment taking requiring just compensation. (Two justices called for more percolation below.) But now! Thrilling news! This week, a federal court reentered judgment in Vicki's favor under the Texas Constitution. Click here to learn more.

New on the Short Circuit podcast: Scott Lincicome of Cato breaks down what's up at the Court of International Trade and IJ's Jeff Rowes breaks down the Texas attorney general.

In 2019, New York decriminalized abortion, authorized them throughout pregnancy (limiting them after 24 weeks to circumstances with a non-viable fetus or when the mother's life/health is at risk), and eliminated fetal homicide from the state's criminal laws. This, claims a social worker and a viable fetus dubbed Baby Nicholas, violates fetuses' constitutional rights to life and equal protection. Second Circuit: No standing. The social worker has only speculated that, at some point in the future, an unidentified woman may seek to obtain an abortion of an unidentified fetus from an unidentified abortion provider—and that isn't enough. As for Baby Nicholas, the risk of harm is too attenuated to provide standing, whether for damages (a risk of future harm that never materialized) or injunctive/declaratory relief (insufficiently imminent harm). Atlantic City, N.J. fire dept. prohibits employees from having beards because they inhibit the seal on protective breathing masks used while fighting fires. But Mr. Smith, the technician who maintains the masks, says his Christianity requires a beard and that nobody in his role has had to do fire suppression for decades. Third Circuit (via shifting majority over two partial dissents): Unlike the more famous Smith, this Smith has a viable religious liberty violation. Fourth Circuit: Since 2005, when the Supreme Court admonished lower courts to quit dinging so many cases on Rooker-Feldman grounds, we haven't once found that a district court lacked subject-matter jurisdiction in a published opinion because of R-F. Oh snap! "That streak ends today." Norman Rockwell drew four panels of West Wing visitors waiting for an audience with FDR, which he then gifted to FDR's Press Secretary, Stephen Early. Early died intestate, leaving a widow and three children, who filled out the family tree with six grandchildren now sparring over the panels. Ride along with the Fourth Circuit in a decision that includes a reproduction of the panels, a family tree and accompanying drama, a history (back to the Romans) of the presumption that possession is nine-tenths of the law—and a conclusion (over a dissent) that the grandson who physically has the panels owns them. "As a matter of fact if it wasn't for [union organizers] trying to steal money out of your paychecks you would already have your raises." Protected speech? Or an unlawful threat of reprisal for labor activity? Fourth Circuit: Unlawful. So this Virginia trucking company must now bargain with the union that lost election by a vote of 65-30. The Fourth Circuit is absolutely not holding that the Trump administration has so thoroughly undermined the federal civil-service system that federal employees can bypass it in favor of suing directly in federal court. No, no. It is just remanding this case so the district court can decide as a matter of fact whether the Trump administration has so thoroughly undermined the federal civil-service system that federal employees can bypass it in favor of suing directly in federal court. Navy investigators get a warrant to seize—and only seize—a sailor's phone. They search it anyway and find the bad things, but the district court suppresses the evidence. On appeal, the gov't pleads "good faith" reliance on a defective warrant. Fourth Circuit (over a dissent): The warrant wasn't defective. You just didn't follow it. The good faith exception "is not a panacea that can save the Government when all remaining facts and law fail." Affirmed. In which a Fifth Circuit panel tussles with Justice Bushrod Washington and his 1820 opinion that a Pennsylvania law that mirrored a federal law (punishing militiamen who refused to report for federal service during the War of 1812) was preempted by the federal law. We'll admit that few people on the planet are currently thinking, "Man, I wish I could read a nuanced discussion of federal abstention doctrines and the difference between declaratory and injunctive relief," but most of those people probably read Short Circuit. For you, friends, this Sixth Circuit opinion. Allegation: Grand Rapids, Mich. police are on the lookout for an adult white woman with a ponytail who is suspected in a stabbing. They surround and draw their guns on an 11-year-old Black girl with no ponytail, whom they handcuff and place in a squad car while she screams and cries. Sixth Circuit: No qualified immunity for that. [Editor's note: Grand Rapids, you say?] Allegation: Green Bay, Wisc. corrections officers throw hunger-striking inmate in a cold cell overnight—where the temperature drops below freezing—without clothes, mattress, or blankets. Seventh Circuit: Until now, officers could have thought that was okay. QI here but not going forward. Partial dissent: We don't need a case on point; this obviously violates the Eighth Amendment. An Indiana man convicted of murdering his wife files a petition for post-conviction relief in state court, which proceeds to do absolutely nothing with the case for six years. Indiana: It was his own fault! And it was the pandemic! And it was a complicated case! Seventh Circuit: It was six years is what it was. His federal habeas petition can proceed. Allegation: Jonesboro, Ark. officer tases suspect who is scaling a fence. The man falls eight feet and is left paralyzed from the chest down. Eighth Circuit: A jury might think that's excessive force, but qualified immunity. There's no prior case on point. Perpetrators of cryptocurrency theft and extortion are convicted and ordered to pay restitution. Oops! The gov't requested restitution for the victims in amounts equal to the value of the crypto when it was stolen, not its much-higher value at the time of sentencing. District court: My hands are tied. Ninth Circuit: Not that tightly. Los Angeles officer is convicted of a federal felony for using excessive force, but the new administration petitions the court to reduce his offense to a misdemeanor. It does, and the officer is sentenced to four months. Can the victim oppose the reduction? Ninth Circuit: Our hands are tied. LAPD officer warns man to drop knife; he walks toward her. She shoots two rounds, dropping him. He tries to push himself up; she again yells at him to drop it and fire two more rounds. He falls and curls into a ball, and she fires a third volley of two rounds. The last bullet kills him. The Board of Police Commissioners deems the last volley a violation of policy because the man no longer presented a threat. Fractured en banc Ninth Circuit: No QI. After the second volley, he was on his back, well beyond striking distance, and writhing in pain. She had an obligation to reassess the situation before continuing fire, and a jury could find that her failure to do so was unreasonable. Partial dissenters: The whole thing was fast—six shots in six seconds—and the cop had no duty to reassess an armed and moving man. San Diego allows "expressive activity" on public beaches, but defines that term to exclude teaching yoga, which is prohibited. Ninth Circuit: Well, teaching is definitely speech, so that doesn't sound 100 percent correct. Federal prisoner in Kansas: For two days, I was forced to live in a cell covered by an inch and half of raw sewage. Tenth Circuit (unpublished): Sounds gross, but haven't you heard? Bivens is dead. Prisoner: That ruling essentially nullifies the Eighth Amendment. Tenth Circuit: Not so; it's sovereign immunity that does that. FBI agents pull up to a Navajo man's house and invite him into their police cruiser for 41 minutes of questioning, during which the man admits to bad things. But the agents didn't read him his Miranda warnings before questioning, so the district court suppressed the man's statements. Tenth Circuit: The man wasn't in "custody" and thus Miranda wasn't required: The cruiser was unlocked, the man was never told he must stay or talk, and he was never searched, touched, or restrained. Reversed and remanded. Dissent: This interrogation was the functional equivalent of an arrest, with the very same pressure tactics and police-dominated atmosphere described in Miranda. Pretrial detainee spits in Denver deputy's face. The deputy immediately punches the detainee, slams him and his wheelchair to pavement, and jams a knuckle (or thumb) into the detainee's mandibular nerve behind the ear. Tenth Circuit (unpublished): Can't do that, obviously. Denial of QI affirmed.

In 2019, Chicago police mistakenly raided the home of Anjanette Young, a social worker, on the say-so of an informant who didn't have his facts straight. In 2020, Louisville police killed Breonna Taylor, an emergency room tech, in a mistaken raid made possible by a detective who lied on a warrant application. This week, both Anjanette and Kenneth Walker, Breonna's boyfriend, filed a joint amicus brief in IJ's latest case, arguing that the Fourth Amendment's oath-or-affirmation requirement means warrants shall not issue without verification, accountability, or meaningful judicial probing. As have the National Police Accountability Project and a bevy of Fourth Amendment scholars and civil-rights litigators. Click here to learn more.

 

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[Eugene Volokh] "The Court Denies the Government's Attempt to Muzzle the Court"

["Unsealing the May 6 Order is essential for the public to see the government's overreach in searching cellphones without probable cause and [is essential for] publishing precedent as courts unpack future such requests."]

From the introduction and conclusion of a decision by Magistrate Judge Zia Faruqui (D.D.C.) in In re: Search of One Device and Two Individuals (decided last week but just released Wednesday):

The government has moved to seal seemingly forever an order of the Court. But this is the Court's order, not the Executive's order. So the Court, not the Executive, decides unsealing. For the reasons stated below, the Court DENIES the government's attempt to muzzle the Court….

No secret courts. This means no forever sealed judicial decisions—including warrants—as they are the foundation for secret courts. Without visibility, the public cannot hold courts or the government accountable. The Framers knew this. Thomas Jefferson said "wherever the people are well informed they can be trusted with their own government; that whenever things get so far wrong as to attract their notice, they may be relied on to set them to rights." Transparency is foundational to what makes America great.

Transparency requires courts to timely unseal—with redactions if needed—every judicial decision, including search warrants. Courts abdicate their duty to ensure transparency if they only monitor unsealing in high profile warrants.

The largely unsealed May 6 order appears to be here; here's an excerpt from the long May 29 decision justifying the unsealing (with redaction) of the order:

"It is clear that the courts of this country recognize a general right to inspect and copy public records and documents, including judicial records and documents." "The public's right of access to judicial records derives from two independent sources: the common law and the First Amendment." …

"… [A] common law presumption of access [attaches to the order] …, which the government can rebut only by showing competing interests that compel a conclusion that justice requires maintaining a seal. The Hubbard factors govern this analysis." There are six Hubbard factors that the Court must consider:

(1) the need for public access to the documents at issue; (2) the extent of previous public access to the documents; (3) the fact that someone has objected to disclosure, and the identity of that person; (4) the strength of any property and privacy interests asserted; (5) the possibility of prejudice to those opposing disclosure; and (6) the purposes for which the documents were introduced during the judicial proceedings.

As to the first factor, there is a great need for public access. "Access to [judicial decisions about] search warrants and affidavits of probable cause can reveal how the judicial process is conducted. The procedures employed by the prosecutor and law enforcement can be evaluated. Access may also disclose whether the judge is acting as a neutral magistrate [judge]." "And the issuance of public opinions is core 'to the transparency of the court's decisionmaking process.'" "Indeed, since at least the time of Edward III, judicial decisions have been held open for public inspection." Unsealing the May 6 Order is essential for the public to see the government's overreach in searching cellphones without probable cause and publishing precedent as courts unpack future such requests. Indeed, at least one magistrate judge in this district has already refused to sign a similar warrant based on the May 6 Order.

The government argues—without explanation—there is "no stated need" for public access to the May 6 Order. Yet, the stated need could not be more important: public confidence in "the rule of law." …

The government's argument is focused on the potential harm to its ongoing investigation. At the outset, it bears noting that this case did not involve a sensitive, lengthy investigation. Rather, it involved a chase, a tackle, and an arrest. Post-arrest, one completed cheek swab and failed attempts to search a phone and take another cheek swab.

The government's only alleged harm to the ongoing investigation from unsealing is that it would alert [Redacted] of the government's desire to search [Redacted] phone, which in turn might lead [Redacted] to take steps to "purge evidence stored on the cloud." Specifically, they imagine that [Redacted] will illegally obtain a phone at the jail, find a co-conspirator to obstruct justice with, provide [Redacted] login credentials to that co-conspirator, and then direct the co-conspirator to remotely wipe incriminating information. There is no basis in fact to support this multi-step, multi-party paranoid fever dream.

{Given how weak the government's argument of harm to the investigation is, the Court cannot help but ask if there are other reasons animating its sealing request. Perhaps the government is embarrassed about trying to forcibly search an innocent [Redacted] or having a warrant rejected given how rare that is? But "even if preventing embarrassment may sometimes justify access restrictions, there is plainly no justification for such restrictions here."}

First, this was an arrest-generated case of a single defendant with no co-conspirators. It is hard to believe [Redacted] has on-demand criminal co-conspirators ready to obstruct justice. Second, neither [Redacted] nor [Redacted] public defender live under a rock. Presumably, they both know the government almost always attempts to search phones of defendants. So, if [Redacted] was planning to wipe [Redacted] phone remotely, [Redacted] would have done so when [Redacted] phone was seized upon [Redacted] arrest, not weeks later. Third, there is no probable cause to believe that there is incriminating information on the phone. Meaning the government would lose nothing from a remote wipe.

Finally, "law enforcement is not without specific means to address the threat. Remote wiping can be fully prevented by disconnecting a phone from the network." This can be accomplished in several ways. In some cases, officers may simply turn the phone off or remove its battery. Alternatively, the government could place the phone in a Faraday bag, which would shield the device from all electromagnetic radiation, such as a phone network, Bluetooth, or a wireless internet signal. The government could also "mirror" (copy) the phone's contents, to be used as a back-up should the phone be remotely wiped. And the government could issue a preservation letter pursuant to section 2703(f) of the SCA to compel a provider to preserve [Redacted] cloud account(s). Presumably, the much-ballyhooed agent's training and experience has covered these elementary tasks for evidence preservation.

Regardless, redactions check any harm to the investigation. Redactions conceal sensitive facts and sources/methods used in an investigation. But the government has fallen back into its anti-redaxer habits. See In re USA for 2703(d) Ord. for Three Email Accts. Serviced by [Redacted] for Investigation of Violation of 18 U.S.C. §§ 641 & 793, 548 F. Supp. 3d 31, 33 (D.D.C. 2021). The government could have redacted [Redacted]r identifying facts, and details of the requested search. But for unknown or untoward reasons, the government refuses to redact, choosing instead to keep everything under seal. That is not an option….

The government contends that courts must be highly deferential to the government's determination that unsealing would impede its investigation. However, their argument relies on another mischaracterized case: Times Mirror Co. v. United States, 873 F.2d 1210, 1214 (9th Cir. 1989). Times Mirror dealt with sealing of warrant materials relating to an ongoing "preindictment investigation." "[T]he Ninth Circuit specifically left open the question [of] whether the public has a right of access to warrant materials … after indictments have been returned." United States v. Inzunza, 303 F. Supp. 2d 1041, 1046 (S.D. Cal. 2004) (internal quotation marks omitted) (quoting Times Mirror Co., 873 F.2d at 1211). Alternatively, the Fifth Circuit includes "preindictment search warrant materials" as judicial records courts may unseal. United States v. Sealed Search Warrants, 868 F.3d 385, 390 (5th Cir. 2017) ("the decision of whether access should be granted [to pre-indictment search warrant materials] must be left to the discretion of the district courts"). Regardless, neither strand of cases suggest that post-indictment search warrants are immunized from unsealing.

This case has been indicted. On the secrecy spectrum, the end of an investigation is a significant benchmark; but so too are the return of a public indictment and the arrest of a defendant. In fact, there is a recent trend among courts finding that traditional justifications for sealing no longer apply post-indictment because of the "obvious interest in knowing that proper procedures have been followed" and need for "[p]ublic scrutiny of the search warrant process."

"Public access to these records could play a significant and positive role in the functioning of the particular [criminal justice] process in question." The government's secrecy interests must ultimately be weighed against public's interest in being "armed with enough information to know what questions to ask" of the justice system. Additionally, unsealing is often required post-indictment as the government must disclose search warrant materials in the discovery process, particularly to allow for motions to suppress. Considering all of this, this factor weighs moderately in favor of unsealing….

The judge also concludes that the First Amendment requires unsealing; there's a lot going on in that section, but here's a short excerpt:

The Court next turns to the government's alleged compelling interest in keeping the materials sealed and whether sealing is narrowly tailored to serve that interest. The government identifies a compelling interest: maintaining the integrity of its purported ongoing investigation. But the government cannot short circuit the public's First Amendment rights by simply throwing up its hands and shouting "ongoing investigation." The narrow tailoring of "that interest can be accomplished by simply redacting [sensitive information], which the Court [already] direct[ed] the government to do in this case." For the reasons discussed at length above, including that: 1) [Redacted] is incarcerated; 2) the government has seized [Redacted] DNA; 3) there is no risk of spoliation of the phone or related cloud accounts; and 4) the Court has given the government the chance to redact documents, the government has failed to overcome a First Amendment right of access.

And the judge rejects the government's request of a stay of its unsealing order; again, a short excerpt:

The problems with the government's theory of harm does not stop at a lack of proof. Their theory frames a near-impossible scenario as a certain one. The May 6 Order deals with three pieces of evidence: [Redacted] phone / cloud accounts; [Redacted] DNA (via buccal swab); and Ms. [Redacted] DNA (via buccal swab). The sheer absurdity of the destruction of the phone / cloud accounts is addressed above. The government has already obtained [Redacted] DNA.

Finally, the destruction of [Redacted] DNA veers on bad science-fiction. The chance that [Redacted] could manipulate the DNA in [Redacted]eek cells is close to, if not, zero. Though gene-editing techniques certainly exist, they are highly regulated, technical, and expensive. And it is ludicrous to suggest that [Redacted]ll become a fugitive to escape a cheek swab to connect [Redacted] to a gun[Redacted] legally purchased, licensed, and possessed. "[T]he allegations made by [the government] are so speculative and hypothetical that it would be difficult to conclude that irreparable injury would occur even if the allegations were supported by evidence. The fact that [the government has] not attempted to provide any substantiation is a clear abuse of this court's time and resources."

Moreover, … [t]he government cannot in good conscience allege imminent, irreparable injury [that would justify a stay] when the Court has offered an avenue by which it can avoid the alleged injury altogether. Indeed, the government is free to redact as much of the May 6 Order as it needs—although, the Court will consider the possibility of over-redaction should the issue arise. Thus, the second factor weighs strongly against staying publication of the Order….

The government proffers that "because no party is seeking disclosure of the Order, there is no specific movant who would be harmed by staying publication." "But how do you petition the court to open a case if you don't know it exists?" Public inaction must be viewed against this backdrop. To then justify sealing by public inaction is victim blaming….

"The public interest is a uniquely important consideration in evaluating a request for" a stay…. Public access to criminal proceedings provides a "safeguard against the corrupt or overzealous prosecutor," especially, as at this juncture, where there is no jury present…. The government fails to acknowledge, and makes no attempt to dispute, the public interest in access to criminal proceedings.

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[Eugene Volokh] Interesting Unsealing Decision in the Abrego Garcia Deportation Challenge

[I haven't been closely following the many filings in the case, but I'm very glad the court is enforcing a fairly broad right of public access here.]

From yesterday's order in Abrego Garcia v. Noem by Judge Paula Xinis (D. Md.):

The Press Movants rightly contend that, at common law, the public enjoys a presumptive right to access court records, overcome only when outweighed by competing interests. The First Amendment, too, accords the public access, unless there has been a showing of "compelling governmental interest, and only if the denial is narrowly tailored to serve that interest." The right to public access of court records remains critical to promoting "trustworthiness of the judicial process, to curb judicial abuses, and to provide the public with a more complete understanding of the judicial system, including a better perception of fairness." Thus, before allowing records to remain sealed the Court must (1) give the public a reasonable opportunity to be heard; (2) consider less drastic alternatives to sealing such as redactions; and (3) explain publicly and with specificity its decision to seal some or all of the challenged documents.

Defendants oppose unsealing on two grounds. Neither withstand scrutiny. First, Defendants wrongly cast all challenged filings as "discovery materials" which have not "historically been open to the press and public." They then contend, essentially, that no good can come to the case by affording the public access to "discovery."

At best, the only "discovery" potentially subject to disclosure are the attachments at ECF No. 98-1 and 98-2 [Defendants' objections and responses to plaintiffs' interrogatories and requests for production]. But these documents had already been filed on the open record [on April 22] where they remained before the Court had been asked to seal them during the April 23, 2025 hearing, and without the benefit of full briefing and consideration. However, upon consideration of the Press Movants' position, the Court recognizes that judges simply "do not have the power, even were we of the mind to use it if we had, to make what has thus become public private again," Thus, the Court will unseal those documents.

Defendants next contend that continued sealing is necessary to "protect[ ] national security" and "prevent[ ] the dissemination of sensitive information." They relatedly contend that redaction is practically unavailable because "it is unclear that the sensitive information could readily be disentangled from non-sensitive information such that redactions would be a feasible less restrictive approach to protecting the sensitive information."

Although the Court does not wholly agree with the Defendants' overbroad characterizations of the government interests at stake, the Court does recognize that certain information touches upon Defendants' asserted state secrets privilege as applied to Secretary of State Marco Rubio and the State Department. The propriety and scope of such invocation is still pending resolution. Thus, until the Court finally resolves the propriety and scope of such privilege certain portions of the record must remain under seal. However, the Court can and will achieve this protection through redactions when practicable.

Accordingly, for the reasons discussed herein, the Court ORDERS the Clerk to take the following actions:

ECF Nos. 98, 98-1 and 98-2 [Defendants' request for conference as to discovery matters and the objections and responses to plaintiffs' discovery requests]. The filings had been originally docketed by the parties on the open record. Thus, the Clerk shall UNSEAL the filings.

ECF No. 101 is Defendants' relatively boilerplate request for a one-week stay of discovery in an effort to resolve the litigation. It does not disclose any potentially privileged or otherwise sensitive information for which a compelling government interest outweighs the right to access. Thus, the Clerk shall UNSEAL ECF No. 101.

ECF No. 102, Plaintiffs' response to ECF No. 101, includes some information potentially implicated by the state secrets privilege. Such information can and will be redacted. The Clerk is directed to maintain the unredacted version of ECF No. 102 UNDER SEAL, but to file at ECF No. 102-1 the redacted version as provided by the Court.

ECF Nos. 104 and 105 are boilerplate notices of Defendants' ex parte submissions to the Court and a request to continue the April 23, 2025 discovery stay. They shall be UNSEALED. The Court will address by separate order the propriety of filing the ex parte submissions on the public docket, either in whole or in part, after it resolves the applicability and scope of the state secrets privilege.

The April 30, 2025 hearing will be unsealed in part. {Certain portions of the April 30, 2025, hearing transcript will be released, as the substance closely tracks the language set forth in the Harper Declaration filed in J.O.P. v. U.S. Department of Homeland Security.} The Court will provide the certified court reporter with instructions as to which portions of the record shall remain under seal. The redactions are narrowly tailored to protect potentially classified information or material that could implicate the state secrets privilege pending final determination on the applicability and scope of the privilege.

{The Press Movants also request access to the transcript of the April 23, 2025 hearing. That transcript, however, shall remain under seal at this time, as it includes materials designated as classified and potentially subject to the state secrets privilege in a manner that cannot readily be disentangled from any possible non-privileged or non-sensitive information. The Court will revisit whether continued sealing is warranted after it rules on the pending privilege assertions.}

The Press Movants, which include many major news outlets, are represented by Maxwell S. Mishkin and Isabella Salomão Nascimento (Ballard Spahr LLP).

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