Alan Rozenshtein
@ARozenshtein
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Assoc prof @UofMNLawSchool . Ed @ConstComm . Sr & book rev ed @lawfareblog . Co-host @RatlSecurity . Term member @CFR_org . Former @TheJusticeDept . Mr. @HNeprash .
Twin Cities, Minnesota
Joined January 2020
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Just so we're clear, the "proof of concept" that Clark was proposing was the end of American democracy.
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Am crowdsourcing a list of federal laws that might have been violated today (feel free to add). Possibilities from quickly reading 18 USC (in no particular order):
1) 18 USC 2383: Rebellion or Insurrection
2) 18 USC 2384: Seditious Conspiracy
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.
@jedshug
and I explain why Cassidy Hutchinson's Tuesday testimony changed our minds on indicting Donald Trump. For
@lawfareblog
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10) 18 U.S. Code § 930 - firearms in federal facilities
11) 18 USC 1361 - damage to gov't property
12) 18 USC 2101 - riots
13) 18 USC 2112, 2114 - robbery/burglary of federal property
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3) 18 USC 2385: Advocating overthrow of Government
4) 18 USC § 1752 - Restricted building or grounds (this might be only for President/VP residence, but not sure)
5) 18 USC § 231 - Civil disorders
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Some amazing passages in the Fifth Circuit opinion. For example, this one. Well, yeah---that's generally how constitutional litigation works.
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After this hearing, I think the possibility of a criminal indictment of Trump for Jan. 6 has flipped from unlikely to more-likely-than-not.
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6) 18 USC § 241 - Conspiracy against rights (member of Congress have rights to do their jobs?)
7) 18 USC § 351 - assault on a member of Congress (if that happened)
8) 18 USC § 371–373 - Conspiracy
9) 18 U.S. Code § 842 - Explosives (the RNC and DNC pipe bombs)
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Getting rid of the LSAT is incredibly regressive. The main beneficiaries will be academically weaker wealthy students who can afford to pad their resumes, go to private schools with more grade inflation, and pay for admissions coaches.
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This nonsense editorial is an absolute badge of honor for
@Susan_Hennessey
. Couldn't be more proud of her, and we're all lucky to have her at DOJ.
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Great
@lawfareblog
argument preview in tomorrow's D.C. Circuit argument in "Blassingame v. Trump" (which I'll be live tweeting), about whether Trump gets absolute civil immunity for his January 6 speech.
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Great conversation between
@ezraklein
and
@zeynep
throughout, and I particularly like "Zeynep's Law"
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DOJ just filed its amicus brief in Blassingame v. Trump, arguing that Trump should not receive absolute immunity for his "Stop the Steal" speech if it constituted "incitement of imminent private violence." This is a big deal. 1/
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1) The tweet is vile.
2) It is well within academic freedom and Yale should neither discipline nor investigate.
3) The disparate treatment that
@thomaschattwill
highlights shows just how selective and unprincipled are many progressives' concerns about "harmful" speech on campus.
The tweet below is from a professor at Yale, and the context is babies being beheaded.
Think about what happened to Erika Cristakis and
@NAChristakis
at Yale for simply suggesting college students should be able to reason through their own *Halloween costume* choices.
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Also, of all the parts of constitutional law, First Amendment doctrine has the least to do with either text or history. It's a total, "living constitutionalism" product of the 20th century. SCOTUS can change that, but the 5th Circuit can't!
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Universities are not ready for the wave of faculty-hiring litigation that is going to come crashing down on them in the next several years.
NEW: University of Washington violated non-discrimination policy, according to an internal UW report acquired by the National Association of Scholars.
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Ah, sweet sweet victory. SCOTUS denies Trump's motion to vacate the Eleventh Circuit's stay, with no dissents.
Just because public bets are fun, I'm gonna call a 9-0 smackdown.
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And if the D.C. Circuit does deny Trump immunity, the likelihood of the Supreme Court hearing the most important presidential-immunity case in half a century goes way up. /fin
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I am delighted to report that my colleagues at
@UofMNLawSchool
have voted to grant me tenure—a wonderful way to end the year!
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The seditious conspiracy charge is a MASSIVE deal. Here are some past
@lawfareblog
posts about seditious conspiracy, to tide you over as we digest this indictment.
NOW: Stewart Rhodes, the leader of the Oath Keepers, has been indicted — counts against him and 10 others include seditious conspiracy, the first time we've seen that charge in connection with Jan. 6. More to come, here's the document:
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Trump was right on this point: Cuccinelli would indeed be the appropriate person to lead an insane investigation about a baseless conspiracy theory.
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Is there a German word for laughing and crying at the same time?
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One of the great content moderation tragedies of 2021.
I’m sorry to say effective immediately
@DPRK_News
is defunct. I founded the account in 2009.
Twitter decided today that it violates their rules. I’m not going to label a parody a parody. That moots the point. It gives away the joke.
The DPRK never complained. One of you did.
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I wonder if Clark understood just how unbelievably insulting this offer was.
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I owe my career in large part due to being a Lawfare student contributor back in law school (thanks
@jacklgoldsmith
for taking the chance on me!). Amazing opportunity.
Applications for our Student Contributor Program are open! 2L and 3L students who are interested in national security law and policy are encouraged to apply. Apply here:
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In light of this, here are some
@lawfareblog
resources on Section 3, from
@DanielJHemel
,
@GerardNMagliocc
,
@aziz_huq
,
@tomginsburg
, and others:
🚨 BREAKING:
We are representing North Carolina voters in a challenge to Madison Cawthorn’s candidacy for re-election under Sec 3 of the 14th Amendment, which disqualifies insurrectionists from re-election.
#CawthornIsDisqualified
-
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It's increasingly clear that
@TheFIREorg
is by far the most trustworthy source of information on what's happening with the various campus protests. A testament to their unrivaled institutional integrity on speech issues.
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On further reading, it appears that Cannon has given DOJ enough wiggle room to do what it needs to do, but refuses to admit as much. So she gives in without getting to look reasonable. I have no idea what the strategy is here.
Judge Cannon doubles down in the Mar-a-Lago case, rejecting DOJ's compromise offramp. Pretty remarkable.
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This is, by a wide margin, the most impressive document I have ever come across in legal education. As far as I'm concerned, Martinez is the undisputed leader of legal education and I can't express enough my admiration for her.
1/ As I mentioned earlier (via various retweets), here's the 10-page memo from Stanford Law Dean Jenny Martinez about the recent protest of Judge Kyle Duncan at
@StanfordLaw
and its aftermath.
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Unbelievable. At this point I can't see how she can do anything but resign as president---either on her own initiative or in response to a request from Hamline's board---if Hamline wants to continue to be taken seriously as an institution of higher education.
The president of Hamline University is not backing down at all. She argues it’s not an academic freedom issue, she didn’t fire the professor either.
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The FCC has no jurisdiction to interpret Section 230. So can we agree to not waste any more brain cells on this rediculous executive order?
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This is a deeply weird defense of the CDC eviction moratorium. As much as I believe in the infinite wisdom of constitutional law scholars (::cough cough::), Biden has a whole Department of Justice and Office of Legal Counsel for these kinds of questions.
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.
@UofMNLawSchool
has the best students. They surprised me with cake at the review session---also turns out that sugar helps everyone get through 3 hours of legislation and regulation exam prep!
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The military went through this after Vietnam. This seems like the only plausible path for the police.
More and more, I'm convinced that the big policing reform we need is to professionalize the police, through massively increased training requirements and higher education levels.
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Will be spending the weekend writing about the 5th Circuit opinion for
@lawfareblog
. Send me your hot takes!
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Very grateful that the excellent editors of the
@MinnesotaLawRev
will be publishing my piece, "The Virtuous Executive," later in 2023. Thanks to everyone who have given feedback so far—and there's plenty of time for more!
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@jdmortenson
I disagree pretty strongly. The administrator should have informed the students that they could either stay and stop heckling, leave, or face disciplinary consequences. That should have been the entirety of it. Rules are rules, no matter who they apply to.
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This is a good example of the sort of center-left realignment I've been posting about. Last week, one could nod along to discourse about settler colonialism without thinking too hard. Today it's clear what illiberal damage that mindset can cause.
Going forward I will not accept the description of me or any other Canadian as a settler.
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After more than two years of work, I'm excited to finally post a draft of "The Virtuous Executive," which argues that certain character traits—the "executive virtues"—play an essential role in Article II and should, in some cases, be legally enforced. 🧵
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@OrinKerr
What's infuriating is how obvious this is. The test-optional movement is pushed by upper-middle-class anxious parents who are worried their kids won't get into elite schools, but it's laundered through wishful thinking about helping disadvantaged students.
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Just in time for the government's appeal, from the good folks at
@lawfareblog
@qjurecic
@nkorpett
@benjaminwittes
.
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"And in the alternative, even if my client did commit insurrection, Congress gave him amnesty 150 years ago as a Confederate rebel" is a REALLY weird argument.
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I'm biased, but I think this is some of Lawfare's best rapid-analysis work. With
@DavidPriess
@nkorpett
@rparloff
and
@benjaminwittes
(and
@claudiamswain
heroically livetweeting for
@lawfareblog
)
In just 50 minutes—even more quickly if you play it at 1.5x or 2x—get a summary of yesterday’s blockbuster Jan. 6 hearing and analysis of what it all means, from the Lawfare team.
There’s so much insight packed into this single episode. (And I spoke, too.)
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This brief is notable for two reasons: (1) it's rare for DOJ to argue for limits on presidential power; and (2) the brief tracks what the judges in oral argument seemed to think, so it may be enough to give the judges comfort with denying Trump immunity. 17/
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The district court rejected this argument, holding that Trump's speech was "arguable incitement" and thus outside his official duties. 4/
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Nevertheless, DOJ argues that "No part of a President’s official responsibilities includes the
incitement of imminent private violence" and so there's no immunity for such incitement. 13/
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I'm delighted to announce the 2022-2023 season of the Law and Technology Workshop. Can't wait to hear from
@Dschwarcz
@blakereid
Janet Freilich
@BryanHChoi
@yan_fang_
@andrew_gilden
@gmdickinson
@levendowski
@shellysimana
Fanna Gamal and
@ChinmayiSharma
!
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I'm late to the party, but I finally read the mask mandate opinion. Yeesh, what a mess. The fact that it could have been resolved on administrative-law grounds in a much more modest way, but the judge instituted on the HUGE statutory-interpretation swing, is telling.
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This is pretty awesome.
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Trump appealed to the D.C. Circuit, which held oral argument in December. I summarized the argument for
@lawfareblog
, and my upshot was that none of the judges were sympathetic to Trump's extreme argument. 5/
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Since half of my tweeting is about academic freedom, I feel obligated to point out that, whatever my personal views, these statements are neither necessary nor helpful. Universities should just stop making statements and never deviate from that principle. Consistency is the key.
"Let there be no doubt that I condemn the terrorist atrocities perpetrated by Hamas. Such inhumanity is abhorrent, whatever one’s individual views of the origins of longstanding conflicts in the region." Read more from President Claudine Gay.
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I was just being snarky---but apparently this is basically what has happened!
@ARozenshtein
Audience question: How does the special master assess whether a document is classified or not?
@ARozenshtein
: well... The documents will be marked classified or not, the special master can just... look at it.
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This is what academic leadership looks like.
Vanderbilt isn’t backing down.
Chancellor Daniel Diermeier:
“Each university will be tested. And each university will follow its own path. Our approach is clear: We clearly state the principles and rules that support our mission as a university. Then we enforce them.”
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My analysis of NetChoice v. Paxton, the Fifth Circuit decision upholding the Texas social media moderation law, for
@lawfareblog
.
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In case anyone's curious how Mastodon does content moderation.
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I explain why Trump's January 6 indictments (including yesterday's from Fulton County) don't endanger the First Amendment, for
@TheAtlantic
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First, some background: after the 1/6 attack on the Capitol, Representative Bernie Thompson and others sued Trump (among others), arguing that he was personally responsible for the attack. 2/
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This is the issue that keeps getting lost. Duncan's feelings are not particularly important, and it's a mistake for either side to focus on them. The harm was to those students who wanted to hear what he had to say.
More important than apologizing to the judge is apologizing to the students who sought to host or attend the event and hear the speaker. I would hope such an apology is forthcoming.
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DOJ starts with the observation that, because "the President’s responsibilities under Article II are extraordinary and far-reaching," "questions of presidential immunity must be approached with the greatest sensitivity to the unremitting demands of the Presidency." 7/
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Everyone who is complaining that Mastodon is more complicated than Twitter (which it is) should recall that we all use email, which requires all of us to pick our own servers, front ends, etc. Give it a minute! And yes, you pay for freedom with a bit more complexity.
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@jdmortenson
Her other comments went to the merits of Duncan's views, which is not something that an administrator should be opining on in this context. Otherwise it just feeds the perception of DEI being a cover for enforced ideological conformity.
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A step in exactly the wrong direction. Students should be able to organize whatever private ceremonies they want, but I see no good reason why universities should be in the business of officially dividing their student bodies, especially in an increasingly polarized society.
Harvard’s DEI office hosts separate “affinity celebrations” for graduates.
The list from last year includes celebrations for eight different identity groups.
This year Harvard added one for Jewish students for the first time.
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And the judge tells the lawyer to actually talk about the "legal issues" rather than "rhetoric." :-)
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Nevertheless, DOJ states that "a meaningful perimeter exists" and Nixon v. Fitzgerald "is not a rule of absolute immunity for the President regardless of the nature of his acts." 8/
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Nevertheless, they asked DOJ for its view, which brings us to this amicus brief. 6/
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Trump argued that, under Nixon v. Fitzgerald, he was absolutely immune from the lawsuit, because he was the president at the time of the speech and speaking on matters of public concern is within the "outer perimeter" of his official duties. 3/
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Calling out
@benjaminwittes
on this---this capybara HAS to be a beast of the day. What a boss.
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Scratching one off the career bucket list!
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First episode of the new incarnation of
@RatlSecurity
drops tomorrow! With
@qjurecic
and
@S_R_Anders
and a guest appearance from
@benjaminwittes
. Topics include Afghanistan, climate change, and Scott's love of cardigans and pumpkin beer.
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I'm pleased to report that I've finally made it: I now receive unhinged hate email about my legal takes. It's like a second bar mitzvah—I feel like such an adult!
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About to listen to oral argument in Thompson v. Trump (background here). Should be interesting!
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Weekend podcasts are about as close as we at Lawfare get to "emergency" podcasts. Worth a listen.
On today’s Lawfare Podcast,
@benjaminwittes
talks with
@qjurecic
,
@ARozenshtein
and
@BryceKlehm
about the Senate Judiciary Committee report that offers new details about Trump’s effort to use the Justice Department to overturn the 2020 election.
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"A court considering a claim seeking to hold [Pres.] liable for violence allegedly connected with his speech should deny [abs.] immunity only if the speech, viewed objectively and in context, both encouraged imminent private violence and was likely to produce such violence." 16/
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The
@lawfareblog
crew's thoughts on the Oath Keepers seditious conspiracy charge, with
@S_R_Anders
@qjurecic
@rohini_kurup
and
@nkorpett
. Bad news for the Oath Keepers; better news for Trump.
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TikTok v. Montana is going to be absolutely fascinating. Just check out the issue lineup!
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Thus, DOJ argues, the court should use the same high standard for incitement that's articulated in Brandenburg v. Ohio to determine whether presidential immunity is appropriate. 15/
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DOJ urges the court to rule narrowly "without attempting to comprehensively define the boundaries of the President’s immunity for his speech on matters of public concern—including when and how to draw a line between the President’s official and electoral speech." 10/
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In light of Apple's new CSAM detection system, this paper of mine from 2019 about how to think through the difficult policy issues around encryption may be of interest.
Also no one's yelled at me about encryption for a while, and I kinda miss that!
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Other than the job I'm doing now, this would be my dream job.
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Excited to kick off the second-annual (and first in person) Cybersecurity Law and Policy Scholars Conference! Many thanks to
@UofMNLawSchool
for hosting, to my co-organizers
@cybersimplesec
@GusHurwitz
@jkosseff
@josephinecwolff
, and to
@Hewlett_Found
@UNL_NGTC
for their support.
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"Gaza-based." Hamas never even mentioned on his timeline. Seriously, how does the left expect to stich itself back together?
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This is bad.
U of Wisconsin Law School is requiring 1L students to attend a DEI training.
The reading is directed only at whites and says colorblindness, individualism, arguments against affirmative action, and distancing oneself from white supremacists are “racist attitudes and behaviors.”
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I'm delighted that "The Virtuous Executive" is now out in final form in the excellent
@MinnesotaLawRev
. With Donald Trump's many legal issues barreling toward the Supreme Court—from his criminal indictments to the Section 3 disqualification—hopefully this piece on the ethical
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(1) Trump was campaigning so not official; (2) Trump fomented insurrection against Congress, so can't be official (because clearly unconstitutional)
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I'm generally skeptical of monocausal Theories of Everything, especially in a country as large & complex as the US. But
@hmcghee
's "drained-pool politics" is as close to a convincing master narrative of American history as I've come across. W/
@ezraklein
?
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On the special counsel announcement:
The Lawfare team is working on the kind of thoughtful analysis you’ve come to expect. Stay tuned.
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.
@qjurecic
@lawfareblog
identifies the most important reason to impeach Trump: to get enough GOP senators to vote to disqualify him from running in 2024 (or ever again).
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DOJ also argues that the district court was right to reject the plaintiffs' broad anti-immunity claim that there's no immunity when the presidential conduct involves actions constitutionally assigned to a coordinate branch. (Same with the argument about campaign speech.) 11/
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A few thoughts going into the 9:30 AM ET argument:
Great
@lawfareblog
argument preview in tomorrow's D.C. Circuit argument in "Blassingame v. Trump" (which I'll be live tweeting), about whether Trump gets absolute civil immunity for his January 6 speech.
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But even here DOJ is very careful, arguing that "In excluding such incitement from the scope of immunity, however, courts must take care not to adopt rules that would unduly chill legitimate
presidential communication." 14/
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Outstanding
@evanbernick
Nope it's a different one: 20th Amendment says prez is sworn in at noon in January. Do you still swear in at noon if Congress changes what noon in January is? If so Congress has unlikely power to shorten a sitting president's term in office.
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