Carissa Byrne Hessick
@CBHessick
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Criminal law professor at the University of North Carolina. Director of the Prosecutors and Politics Project ( @ppp_unc ). Author of "Punishment Without Trial."
Chapel Hill, NC
Joined March 2015
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Incredibly excited to announce that I've been awarded a Fulbright to study at the Australian National University in spring 2024.
I'll be conducting research for my new book project on criminal sentencing in common law countries.
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Hi Everyone:
Just a quick reminder that in-person debates are a terrible way to test the merits of ideas.
All they test is the verbal agility and rhetorical style of their participants.
Signed,
A Very Successful College Debator
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The President is on Fox News right now saying that maybe the FBI and the Department of Justice were involved in the supposed election fraud in the 2020 election.
When will this nightmare end?
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I'd be interested to see a Venn diagram of folks saying that an attempted rape from many years ago should have no bearing on whether someone can become a Supreme Court Justice and those who support lifetime registration for sex offenders.
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The Supreme Court has repeatedly held that it's up to citizens to refuse to cooperate with police if they want to protect their Fourth Amendment rights against search & seizure
Yet this police officer literally shot a boy who asked "why" when police told him to get out of his car
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Widely circulated photos claiming to show police officers injured in Seattle and Portland protests this weekend are actually old pictures from Australia.
More evidence that “law & order” campaign issues need far more scrutiny.
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If Lindsay Graham thinks non violent first time offenders should not spend time in prison, then he should use his powerful position as chair of the Judiciary committee to change the sentencing ranges of federal statutes and sentencing guidelines to accomplish that result.
In my view it would be justified if President
@realDonaldTrump
decided to commute Roger Stone's prison sentence.
Mr. Stone is in his 70s and this was a non-violent, first-time offense.
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It should be a bigger scandal that Ken Paxton, the attorney general of Texas, was indicted more than 5 years ago and has fired a bunch of whistleblowers in his office who accused him of bribery and corruption.
Instead, the former president just endorsed his reelection.
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This is not how criminal law works.
@BernieSanders
At L.A. rally,
@BernieSanders
says, if elected, he'll legalize
#marijuana
in all 50 states by executive order and expunge the records of all those who've been arrested for pot possession.
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Seems like a good time to remind everyone that Ken Paxton is under indictment for fraud, and that seven whistleblowers in his office have resigned, been fired, or placed on leave.
Ken Paxton of Texas and 10 other state attorneys general argued in an amicus brief that the Biden administration could not be trusted.
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I don’t know who needs to hear this—aside from Laura Ingraham’s viewers, that is—but the situation she’s described here is quite literally the crime of bribery, *not* attempted bribery.
Laura Ingraham: "Attempted bribery isn't in the Constitution"
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In case you were wondering, ordinarily there is no expectation that individuals personally thank the President of the United States whenever the Department of Justice arrests someone who was planning to harm them.
...today that they foiled a dangerous plot against the Governor of Michigan. Rather than say thank you, she calls me a White Supremacist—while Biden and Democrats refuse to condemn Antifa, Anarchists, Looters and Mobs that burn down Democrat run cities...
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Honestly, for my legal ethics final exam, I should just put a picture of Rudy Giuliani’s face and the word “Discuss”
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One item in the
#MuellerReport
that seems to have largely escaped attention is the fact that Donald Trump Jr. committed a crime--specifically, he violated the computer fraud and abuse act. It appears that he wasn't charged only because of prosecutorial discretion. A few thoughts:
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If your criticism about a potential Supreme Court nominee is her religion, can I kindly suggest that you look in the mirror and think about when you decided that religious discrimination is okay.
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The news that Minneapolis has disbanded its police department will strike many people as incredibly radical.
But Camden, NJ did the same several years ago.
And with the help of
@policingproject
Camden has remade itself as a safer and more just community.
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This paper is a bombshell for the Flynn case. The drafting history shows that Rule 48 exists precisely to stop well connected defendants from having “Washington” direct dismissal of charges. And the Supreme Court inserted the “leave of court” language itself to address corruption
NEW on SSRN: “Why Do Rule 48(a) Dismissals Require ‘Leave of Court’?” SCOTUS (and DOJ) say it’s only to protect Defs. (so judge must dismiss if Flynn assents). Not so. Rule 48(a) exists to stop Gov't from dropping cases against well-connected defendants.
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President Trump is playing with fire.
I can't imagine that DOJ will do anything about this (at least not now).
But state officials--like the Michigan AG and locally elected Michigan prosecutors--are perfectly capable of investigating and prosecuting state election crime.
President Trump personally called the two Republican canvassers in Wayne County,
@AP_Politics
reports. Now they’re trying to rescind their support for certifying the vote.
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I totally missed this.
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Obama nominated Merrick Garland because senior GOP Senator Orrin Hatch had publicly stated that there was “no question” that Garland would be confirmed to the Supreme Court.
Given that Obama nominated Garland when he knew there was little or no chance GOP-controlled Senate would consent, does anyone doubt that he'd have filled a vacancy if it opened a week - even a *day* - before his term ended if Dems controlled Senate? 1/2
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.
@jaketapper
just asked
@BernieSanders
about “defund the police”
Sanders said “Let’s rephrase” because “nobody I know who’s running for office talks about ‘defunding the police’; what we talk about is making police officers accountable” and other reforms.
#CNNSOTU
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I’m surprised at how many reputable news organizations are writing about congressional subpoenas, attorney client privilege, and other key legal issues without getting quotes/commentary from legal experts. Instead they just contrast quotes from Rs and Ds.
What an incredibly irresponsible piece
@washingtonpost
. Waiting until the 9th paragraph to tell us that the White House cannot, in fact, “block” McGahn from testifying after 8 paragraphs of stenography from the White House. Really?
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Big news out of NYC:
"FBI agents are probing the Manhattan district attorney’s office over its handling of high-profile cases that were dropped once lawyers for the well-connected subjects made donations, the Daily News has learned."
1/x
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I am curious whether those people who are insisting that Judge Sullivan has no authority to reject DOJ's Rule 48 motion in the Flynn case also think that judges have no federal authority to reject plea bargains.
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Everyone should read
@gtconway3d
and
@neal_katyal
I especially appreciate their argument that those Senators who are lawyers--and there are a lot of them--should be especially attentive to the rule of law in the upcoming impeachment trial.
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I imagine one reason that would-be crime victims don’t thank the president is that we don’t think law enforcement is some sort of favor that the president does for the rest of us. It’s his duty to faithfully execute the laws, not something he does out of the goodness of his heart
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I appreciate that most people want to talk about this as Turley being hypocritical.
But we should also see this as a serious breach of academic ethics and professionalism.
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I don't know how to fix the problems that led this officer to shoot a teenager who was eating a hamburger.
But it would be incredibly easy for the Justices to fix their Fourth Amendment doctrine, which is built on a complete lie about police/citizen interactions.
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I have seen so many people (including folks on
#lawtwitter
) comparing what happened at the Capitol yesterday with the violence and property damage that happened in some cities during protests last summer.
Let me explain what is wrong with that analogy . . . . .
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I once saw a woman who was convicted of conspiracy to distribute drugs and sentenced to 5 years in prison because she took a phone message for her drug dealing boyfriend.
Conspiracy law sucks.
"Nothing Mr. Meadows is alleged in the indictment to have done is criminal per se: arranging Oval Office meetings, contacting state officials on [Trump's] behalf, visiting a state gov't building, & setting up a phone call for [Trump]," his lawyers say.
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And in case you were wondering how the Fox News host handled this absolutely bizarre tirade from the sitting president, she let him ramble and also completely supported his unfounded claims of voter fraud.
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Now Trump's asking why DOJ still hasn't done anything to prosecute Jim Comey, Andrew McCabe, and John Brennan.
I'm no fan of Bill Barr's, but this bizarre interview suggests that he has been resisting an awful lot of pressure from this president to persecute political enemies.
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I study prosecutorial power, so I was very interested to see what Trump's attorneys were going to say in the selective & vindictive prosecution motion they filed on Monday.
I've now read the motion and it is quite awful.
Let me explain why . . .
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My colleague Joe Kennedy
@JEKUNC
just published this article on how Trump could be held liable for his failure to act during the Capitol riot.
It should look familiar to my students who just learned about criminal omissions!
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As the only lawyer in my family, I used to have to answer my relatives' questions about their wills.
Now I get Qs like "what is the difference between a plea agreement and a cooperation agreement?"
Fun times.
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This year, the US News law school rankings decided to incorporate student debt as a factor. The more loans a law school’s students took out, the worse the law school fared in the rankings.
Such a decision incentivizes schools to admit students from rich families over poor ones
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Randy makes a very good point here.
It's also worth noting what happened to the Federalists--they never held the Senate or Presidency again. In addition, the Democrats who swept into office added a Supreme Court seat, cancelled SCOTUS sittings, and shrank the lower courts.
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Real world example of prosecutors' leverage to get defendants to plead guilty. These defendants will serve twice as long in prison because they insisted on their constitutional right to trial.
You can think they deserve a lot of punishment and still acknowledge this is wrong.
Before trial, USA offered Proud Boys plea deals, revealed yesterday. They passed. Result:
Offer | Sentence after trial
Tarrio 9-11 yrs| 22 yrs
Nordean 6-8 yrs | 18 yrs
Biggs 6-8 yrs | 17 yrs
Rehl 6-7 yrs | 15 yrs
Pezzola 4-5 yrs | 10 yrs
/1
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Much of the chatter surrounding whether the Biden DOJ would prosecute Trump was that the Dept wouldn’t prosecute because they’d worry about being seen as “too political”
McConnell’s statement makes that argument against prosecution seem a lot less strong
One really interesting takeaway from McConnell’s is that he’s given the DOJ under Biden a free political pass to prosecute Trump. That speech was a pretty clear signal he won’t make a political issue out of it
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I can't believe that I'm going to say this:
Good job Bill Barr
BREAKING: Attorney General William Barr tells AP that the Justice Department hasn't uncovered widespread voting fraud that could have changed 2020 election outcome.
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I know a lot of folks in the academy will disagree with this thread. But we have to grapple with the fact that much of what happens on campus right now is about enforcing a certain view of the world, not pursuing knowledge or educating students.
This is what we're witnessing – the dismantling of public higher ed in conservative states – and we've created the conditions for what's going on at UNC. How did anyone think we could get away with being nakedly ideological for years without any chickens coming home to roost? 1/
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FYI:
A “noisy” withdrawal is how attorneys are supposed to deal with some major ethical problems when confidentiality rules don’t let you say more.
There may be a big story here.
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A good reminder that uninformed people (like the President) don’t see this week’s opinions as Qs of statutory interpretation or administrative procedure
They see them only as battles in a larger culture war—that’s the only way to think a vote on agency review is related to guns
These horrible & politically charged decisions coming out of the Supreme Court are shotgun blasts into the face of people that are proud to call themselves Republicans or Conservatives. We need more Justices or we will lose our 2nd. Amendment & everything else. Vote Trump 2020!
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The idea that law enforcement ought to execute people accused of crimes in the streets for “retribution” is absolutely terrifying.
Anyone who says they believe in “law & order” should be appalled by this.
Trump on a purported antifa sympathizer who allegedly killed someone in Portland being killed by federal forces: "This guy was a violent criminal, and the US Marshals killed him. And I'll tell you something -- that's the way it has to be. There has to be retribution."
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Update: He says "people keep asking" DOJ whether they are looking into all of the fraud allegations, and they have been told "yes, we are looking"
But "no one" has told him that they've arrested anyone who has done anything wrong.
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I just shouted "try to be ethical people" to my students at the end of the last legal ethics class of the semester.
Not my finest end to a class ever.
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I get it —- President Trump didn’t get what he wanted: He had to release the funds to Ukraine without getting the official announcement of an investigation into Burisma or 2016.
But that doesn’t change the definition of the crime of bribery.
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Wow. Rep. Cheney basically just said that the Committee referred Trump to DOJ--ostensibly out of concern that he is trying to obstruct the committee/intimidate witnesses.
Hard to think that she did that without knowing the pressure that it creates on DOJ.
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@jamalgreene
I'm afraid I have to disagree. The point is to test the idea, not the people espousing the idea. Even for less complex questions, "winning" an in-person debates is about anticipating arguments, being quick on your feet, and speaking in a compelling or charming manner. 1/2
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The Georgia House just passed legislation that would not only make it more difficult to vote, but also makes it a crime to give food or water to anyone standing in line to vote.
The idea that this should be a crime is completely outrageous.
(h/t
@cwebbonline
)
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Perhaps Turley has an explanation for why he has discarded his considered legal opinion.
If so, I would have hoped that he’d presented that explanation before or during the announcement of his new opinion.
At a bare minimum, he should offer it immediately.
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The
@WSJ
editorial page is says there's no need for Bolton to testify because everyone already knows that aid to Ukraine was conditioned on a Biden investigation.
But the President and his lawyers are literally arguing the precise opposite to the Senate.
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This is the official account of the NYPD Sergeants union telling officers to defy their democratically elected civilian leadership.
If police aren’t accountable to any elected public officials, then how can they—even in theory—be trusted to wield power over the rest of us??
DEFY DeBlasio lead the NYPD don’t be afraid to be fired! Doing what is right and not popular is never easy, DO what is RIGHT & the men and women of the NYPD will walk through the FIRES of hell with you. Show NO FEAR, DeBlasio is weak. Defend the city honor your OATH 🇺🇸🇺🇸🇺🇸
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Wow.
I guess if you go deep enough down the “republic not a democracy” rabbit hole, then you can convince yourself that the Vice President has the unilateral power to decide a presidential election.
"We live in a democratic republic in which the Vice President, who will more often than not be a candidate in the election, has the sole and unchallengeable power to decide who wins the election" is a hellofa take.
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Nothing like publishing an essay on substantive common law based on 2+ years of careful research and then waking up to find folks who identify themselves as "tech CEOs" in your mentions telling you "well actually, judges don't pass legislation"
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If someone wants to make the prosecution of all misdemeanors “mandatory,” chances are that person doesn’t know how many inane and innocuous things are actually misdemeanors.
I’ll also crack down on property crime by fixing Prop 47 and make it mandatory for the City Attorney to prosecute misdemeanors, to ensure there are consequences and fair repercussions for those who break the law.
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Me before social distancing: Homesteading looks like fun! I should make more things myself.
Me today, trying to make a loaf of bread from scratch:
Division of labor & specialization is one of civilization’s greatest achievements!
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My Pillow CEO complaining about the reception he received when he presented White House lawyers with so-called evidence of election fraud.
I expect the lawyers’ agenda includes not getting sanctioned for making frivolous claims.
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@jamalgreene
In fact, competitive debate usually requires debators to be able to "win" on either side of an argument. 2/2
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Grand jurors were not given the opportunity to consider other charges, including homicide, in the death of
#BreonnaTaylor
Grand juries exist to give democratic input into criminal charging decisions.
AG Cameron not only short circuited that input, but he also misled the public.
The anonymous juror's attorney just sent out a press release with a statement by the juror. It confirms what many have suspected:
"The grand jury was not presented any charges other than the three Wanton Endangerment charges against Detective Hankison."
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Here, for example, is the federal bribery law, which contains a pretty standard definition. You’ll see that the crime is committed when the offer or promise is made. The actual exchange of money just isn’t part of the crime.
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Given how many times I’ve seen this approvingly retweeted into my timeline, I worry that a lot of people in this country don’t realize that there is absolutely zero legal threshold law enforcement needs to clear in order to “start an investigation.”
I finally watched the McCabe intv. Every American, regardless of party, should be concerned that a couple of people were able to start an investigation on a feeling, not evidence. Where were the checks and balances? These are the things that happen in other countries, not the US.
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Guys—it’s official. My book on plea bargaining will be published on October 12.
I am so, so excited! (Here's the link to pre-order: )
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"Several years ago, [Lee] suggested that the 17th Amendment—which allows citizens to directly elect U.S. senators—should be repealed."
Perhaps that's why the efforts of the Senator and his staff to "clarify" his tweets have been so ham-handed.
@ArcDigi
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Unless that law changes--unless we get rid of qualified immunity or do away with the consent doctrine under the Fourth Amendment--the idea that the public should submit to police is indistinguishable from saying police should be free to violate the rights of the public.
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I would hope that this was already clear: The decisions that local governments are making right now aren’t simply to keep you safe; they are designed to keep the rest of us safe from you.
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If you are also appalled by the awful, unethical conduct by Stefan Passantino revealed in the Cassidy Hutchinson transcripts, then you might feel a little better to read up on the various ethics complaints pending against Trump World lawyers
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This, from a New Yorker interview with Richard Epstein, may be the purest form of a law professor opining outside of his expertise--complete with claim that critical thinking skills can somehow substitute for subject matter expertise.
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Anyone who thinks that the criminal laws we already have aren’t enough to deal with what happened on Wednesday just isn’t familiar with current criminal laws.
As a community, we must stand together against creating any new laws or punishment in response to last week’s events, or any event. The criminal codes are EXPANSIVE already. Violence does not occur because there are insufficient laws! (1/2)
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I'm not an expert in religious freedom or the death penalty. But I'm absolutely shocked that this is a dissent.
Here is the full dissent: / If not the first, this is, at least, one of the rare times when Justice Kagan has written the dissent in a death penalty case.
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I really can't express how bizarre this is as a legal matter.
DOJ provided a Mark Meadows declaration to a federal court today: "The President indicated to me that his statements on Twitter were not self-executing declassification orders & do not require the declassification or release of any particular documents."
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In case you were wondering, it’s actually not that unusual for prosecutors to dismiss charges against defendants.
But it is unusual to drop charges a) after a guilty plea, and b) after blatant interference by a President of the United States.
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Interesting that holding a trial in the place where a crime is alleged to have taken place is suddenly seen as a problem that needs reform as opposed to an important right that should be enshrined in the Constitution.
I wonder why … 🤔
The Trump case aside, it’s kind of insane that amid all the discussion about criminal justice reform, there’s no concern that all these political cases are tried in a jurisdiction where 90% of the jury pool leans in one direction.
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My hat is off to all of the policy debaters using this as an opportunity to throw shade at parli. 😉
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Thoughts and prayers for Judge Sullivan’s law clerks, who have probably put a ton of effort into helping their judge write an opinion about DOJ’s awful motion to dismiss the charges against Flynn, who had already pleaded guilty.
It is my Great Honor to announce that General Michael T. Flynn has been granted a Full Pardon. Congratulations to
@GenFlynn
and his wonderful family, I know you will now have a truly fantastic Thanksgiving!
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This
@washingtonpost
story confirms not only that the FBI is applying different (and more favorable) standards to Trump's potentially criminal behavior, but also that this deference can be traced in part to Trump's repeated attacks against the FBI.
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The responses to this tweet are incredibly sad.
@TomFitton
@JudicialWatch
@realDonaldTrump
Using the word “coup” to describe lawful Congressional action is entirely irresponsible.
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There is another, more important difference between the reasons for action.
The people at BLM protests were trying to get changes made to policing practices.
The people at the Capitol were trying to stop Congress from certifying an election.
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Judge Gleeson has filed his amicus brief in the
#Flynn
case, and it opens with some very intense criticism of DOJ.
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Reading about this PAC money deal, and I’m reminded that the Supreme Court declared that these organizations were constitutionally exempt from campaign finance regulations because they couldn’t coordinate with elected officials and candidates. 🙄
🚨 BREAKING IN
@PunchbowlNews
PM:
@club4growth
has cut a major deal with McCarthy-aligned
@CLFSuperPAC
that paves the way for CLUB to support MCCARTHY
CLF will stop spending in safe open-seat primaries.
This is a BIG gripe of the KM opposition.
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I agree with Andrew.
But I wish that judges cared about *other* rights besides guns when it comes to people indicted for crimes.
For example, the courts are perfectly happy to let people rot in prison before trial. Seems to me that is more problematic than being denied a gun.
Unpopular opinion but fuck yeah if you have a constitutional right it should not go away because the government got 23 strangers to find probable cause in a secret hearing where they did not have to present exculpatory evidence.
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OK, so then how about this one:
The Supreme Court didn’t rule in favor of the Second Amendment. It ruled against federalism.
Letters to the Editor: The Supreme Court didn't rule against abortion. It ruled for federalism
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Judge Dearie is forcing Trump's lawyers to actually support their client's repeated public assertions that the FBI has lied. Between this and Dearie's statements about providing evidence about declassification decisions, it's clear that Trump is his own worst enemy in this case.
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Reasonable people can disagree about the wisdom of Court packing.
And personally, I hate to see the courts treated as a political football.
But hypocrisy coming from the GOP right now about election year vacancies and changing the number of judges on the courts is staggering.
A story from the memory hole: In 2013, Republicans threw a huge fit over "court packing" when Obama tried to simply fill three existing vacancies on the eleven-member DC Circuit. Then-Rep. Tom Cotton introduced legislation to reduce the size of the court.
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Because I think people should behave more professionally on Twitter, I'm inclined to believe that Senators should consider nominees' behavior on the platform.
But they need to be consistent.
Sen. Manchin voted in favor of Richard Grenell as German ambassador despite his tweets.
NEW: Sen Manchin is not supporting Neera Tanden’s nomination for OMB.
"I have carefully reviewed Neera Tanden’s public statements and tweets... I believe her overtly partisan statements will have a toxic and detrimental impact on the important working relationship...”
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The prosecutors in the Stone case asked for a Guidelines sentence—-that is standard operating procedure for defendants who don’t cooperate.
Those guidelines are harsh. And we should change them. But let’s not pretend the career prosecutors did anything unusual here.
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Christmas morning in the Hessick house:
2 am — 5 year old wakes up asking if it is time to open presents
3:30 am — 7 year old wakes up asking if is time to open presents
5:45 am — kids make joint present-related appeal
6 am — parents relent
10 am — making 3rd pot of coffee
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When I say “great importance,” I’m not exaggerating. Some Senators have already signaled that their vote in the impeachment trial will turn on this issue. And we know because he was asked to testify at previous impeachments, that GOP leadership sees Turley as an authority.
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This passage from
@AWeissmann_
in the Atlantic is astounding. The idea that prosecutors “cannot ignore or invent facts” to ensure that a defendant receives a certain sentence is so entirely at odds with what routinely happens in criminal cases, I can’t believe he said it.
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I’m excited for the country to learn that prosecutorial misconduct doesn’t entitle you to have criminal charges dismissed.
BREAKING: Insiders say Trump's new legal team preparing to file motion to dismiss case citing prosecutorial misconduct & will ask Judge Cannon to unseal Obama-appointed Judge Howell's order breaching attorney-client privilege b/t Corcoran and Trump and declare notes inadmissable
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This account of McCarthy’s remarks at a closed door meeting yesterday indicates that Dems spoke with him about voting to keep him as Speaker and he told them no.
Seems to undercut the complaint that Democrats were playing politics yesterday & are to blame for the current chaos.
And i did it for the good of the conference. The Dems came to me to make a deal. I wasnt goign to make a deal.
When eight people work with the Democrats, it's not for the best of the conference.
I got to be the 55th speaker -- my goal has been to save the country. I love a lot…
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For all the folks in my mentions telling me that Bernie could simply reschedule marijuana via executive order, here's a helpful explainer for you:
It also doesn't solve the giant federalism problem re: most every pot arrest being on the state level.
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And here is a very helpful post by
@OrinKerr
at
@lawfareblog
explaining how this conduct violated section 1030 of the computer fraud and abuse act:
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No shortage of dudes on this site who are eager to tell me what I *really* mean.
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Just a quick reminder that you can think that
#Kavanaugh
is a good judge--and a good Supreme Court nominee--and also speak out about some of the really ignorant and terrible things being said right now about sexual assault victims and failure to report.
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