AP, July 13, 2023, "unalive":

"Unalive" refers to death by suicide or homicide. It can function as adjective or verb and joins similar phrasing — like "mascara," to mean sexual assault — coined by social media users [especially on TikTok -EV] as a workaround to fool algorithms on sites and apps that censor posts containing discussion of explicit or violent content.

Plutarch, Life of Cicero, written circa AD 100; the Latin word for "they have lived" is apparently "vixerunt" ("third-person plural perfect active indicative of vīvō"):

And seeing that many members of [Catiline's] conspiracy were still assembled in the forum in ignorance of what had been done and waiting for night to come, with the idea that the men were still living and might be rescued, he cried to them with a loud voice and said: "They have lived." For thus the Romans who wish to avoid words of ill omen indicate death.

The liberal news media is full of false stories about how Judge Aileen Cannon of the United States District Court for the Southern District of Florida has delayed former President Donald Trump's trial unnecessarily for allegedly mishandling classified documents. But, in fact, the Biden Administration and its Attorney General, Merrick Garland, are themselves to blame for the current delay. Special Counsel Jack Smith claims to be an inferior officer of the United States, but in fact he holds no such office. Smith is a mere employee of the Department of Justice, and he lacks the power to initiate prosecutions. Lucia v. Securities and Exchange Commission, 585 U.S. __ (2018) holds that only officers of the United States can take actions that affect the life, liberty, and property of citizens.

Judge Cannon has asked for oral argument on June 21, 2024 on former President Donald Trump's motion to dismiss Special Counsel Jack Smith's indictment on the ground that Smith was unconstitutionally appointed to his current job because he is not an inferior officer. Washington, D.C. super-lawyer, Gene Schaerr, has filed an amicus brief in United States v. Trump on behalf of former Attorney Generals Edwin Meese III and Michael B. Mukasey, as well as me and Professor Gary Lawson, arguing that Jack Smith was unconstitutionally appointed to be an inferior officer, and Judge Cannon has asked Gene Schaerr to participate in the oral argument, which he has agreed to do.

The Appointment Clause of Article II, Section 2 provides that: "the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments." Jack Smith claims to be an inferior officer of the United States appointed by the Head of the Justice Department, but he is instead a mere employee.

We argue in our amicus brief that Congress has never by law vested in the Attorney General as the Head of a Department the power to appoint inferior officers even though Congress has explicitly vested that power in the Heads of the Departments of Energy, Health and Human Services, Transportation, and Agriculture. The only power, which Congress has given to the Attorney General is the power to make a sitting U.S. Attorney a Special Counsel with jurisdiction to prosecute cases nationwide and outside his or her home district. Thus, the Delaware U.S. Attorney, David C. Weiss, currently has nationwide jurisdiction to investigate and prosecute Hunter Biden as a Special Counsel, and this appointment is completely constitutional. Similarly, former U.S. Attorney for the Northern District of Illinois, Patrick Fitzgerald, was quite legitimately given nationwide jurisdiction to prosecute former Vice President Dick Cheney's Chief of Staff, Scooter Libby, in Washington, D.C. Fitzgerald got Libby convicted and sentenced to time in jail.

Jack Smith, however, was a private citizen, and not a sitting U.S. Attorney, when Attorney General Merrick Garland named him to be the Special Counsel who would investigate and prosecute Donald Trump. Smith's appointment as an inferior officer was thus unconstitutional, and therefore the cases against former President Donald Trump, which Smith is prosecuting in Florida and in Washington D.C. must be dismissed. Again, Congress has never by law vested in the Attorney General the power to appoint inferior officers

The 92 U.S. Attorneys are all superior officers who must be nominated by the President and confirmed by the Senate. This requirement of Senate confirmation of U.S. Attorneys has been a part of our law since the Judiciary Act of 1789—i.e. for 235 years. It is, to say the least, implausible that Congress would require Senate confirmation of the U.S. Attorney for Wyoming but not of a Special Counsel who is prosecuting a former and possibly future President in both Florida and Washington, D.C.

Senators have deliberately decided not to give Attorneys General the power to appoint inferior officers with power to initiate a prosecution because they want to have a say in the confirmation process over who can prosecute cases in their home states. If the Attorney General has the power to appoint prosecutors without Senate confirmation think of what he might do with that power in corrupt places like Cook Country, Illinois or New Orleans, Louisiana. No wonder the Senate grants to the Heads of four other Cabinet Departments the power to appoint inferior officers while denying that power to the Attorney General.

Former Attorney General Robert Jackson said in a December 1, 1940 speech at the Conference of U.S. Attorneys that:

"It would probably be within the range of that exaggeration permitted in Washington to say that assembled in this room is one of the most powerful peace-time forces known to our country. The prosecutor has more control over life, liberty, and reputation than any other person in America. His discretion is tremendous. He can have citizens investigated and, if he is that kind of person, he can have this done to the tune of public statements and veiled or unveiled intimations. Or the prosecutor may choose a more subtle course and simply have a citizen's friends interviewed. The prosecutor can order arrests, present cases to the grand jury in secret session, and on the basis of his one-sided presentation of the facts, can cause the citizen to be indicted and held for trial. He may dismiss the case before trial, in which case the defense never has a chance to be heard. Or he may go on with a public trial. If he obtains a conviction, the prosecutor can still make recommendations as to sentence, as to whether the prisoner should get probation or a suspended sentence, and after he is put away, as to whether he is a fit subject for parole. While the prosecutor at his best is one of the most beneficent forces in our society, when he acts from malice or other base motives, he is one of the worst. ***

Because of this immense power to strike at citizens, not with mere individual strength, but with all the force of government itself, the post of federal district attorney from the very beginning has been safeguarded by presidential appointment, requiring confirmation of the senate of the United States. You are thus required to win an expression of confidence in your character by both the legislative and the executive branches of the government before assuming the responsibilities of a federal prosecutor."

Thank God Judge Cannon has scheduled oral argument on President Trump's motion to dismiss Jack Smith's prosecution of Trump for misuse of classified documents by a Justice Department employee who has not been nominated by the President and confirmed by the Senate. The judge should dismiss Smith's case, and the Eleventh Circuit, and the U.S. Supreme Court should affirm that dismissal.

If, at that point, Attorney General Garland still wants Trump's alleged misuse of classified documents investigated, as did not happen with former Obama Secretary of State, Hillary Clinton, then Attorney General Garland should follow the law and ask one of the 92 sitting, Senate-confirmed U.S. Attorneys to conduct any investigation that occurs. Attorney General Garland's failure to follow the law and the Constitution is a national disgrace. Judge Cannon should get a national round of applause.

I thought this was worth sharing:

To the Members of the Johns Hopkins Community,

On Monday, April 29, the Beach became the site of a Palestine Solidarity Encampment, one of many on campuses across the nation. The encampment concerns many Hopkins students, the Jewish community included.

The horrific attacks against Israel on Oct. 7 impacted us directly, with members of our community losing friends and family members. In the months since, we have mourned the loss of civilian lives - Israeli and Palestinian. We recognize the disheartening and disturbing conditions in Gaza. At the same time, we stand firm against Hamas - a terrorist organization committed to the destruction of the Jewish people.

While the Hopkins Jewish community possesses a variety of opinions regarding the Israel-Hamas war, we are committed to promoting peace, security and healing for all affected by this tragic war. But, irrespective of the conflict, it is unacceptable to risk the safety and security of students; the hatred espoused within the encampment puts every Hopkins student at risk.

Protesters - despite their stated desire to demilitarize both Gaza and Hopkins - call for violence against Jews. Some of these include:

• "There is only one solution: Intifada revolution."
• "Resistance is justified when people are occupied."
• "BPD, KKK, IDF, you're all the same!"
• "From the river to the sea, Palestine will be free."
• "Anytime somebody comes and tells you that in order for there to be justice in Palestine, that the illegal, racist settler colony of Israel needs to be wiped off the face of the earth, what are you going to say? [Crowd response:] 'Smash Zionism.' This is the task."
• Written on a tent in the encampment: "Theirs [sic] no such thing as a peaceful protest."
• On a sign at the encampment: "Zionism upholds Nazi ideology and white supremacy."
• "Some people think that victory is a ceasefire, these are people who haven't been paying attention because they've already shown that ceasefire just means pause. We're not here for a pause. Some people think that victory means peace, we think there's no such thing as peace without justice. And we know you only get peace and justice in victory. It means that your enemies have been defeated; it means that your enemies have been squashed; it means your enemies have been checked."

These are not calls for peace. These are not calls to improve the lives of Palestinian people. These are calls for violent attacks against all Jews: Jews in Israel, Jews in your classes, Jews in your community and Jews across the world.

These statements are antisemitic. We define Zionism as the right of the Jewish people to self-determination and statehood in our ancestral homeland. Denying this right is antisemitic. Denying our religious connections to the land is antisemitic. Calling for the destruction of the only Jewish state in the world "from the river to the sea" - home to 46% of the global Jewish population" - is antisemitic. It is unacceptable for outside parties to assert that something is not offensive to our community.

While encampments tokenize minority anti-Zionist Jewish voices to justify their rhetoric and actions, national polling consistently shows broad Jewish support for the state of Israel, and the Jewish community at Hopkins is no exception. Israel is a critical part of our Jewish identities, and no student should be targeted based on their identity.

Calling the intifada - periods of intense violence, terrorist attacks and suicide bombings against Israeli civilians - "resistance" is sickening. Saying that all resistance, including the use of murder, rape and kidnapping is "justified" is not representative of the values of the University, Judaism or the United States. Referencing the Nazi ideology of the Final Solution is blatantly antisemitic.

Yet, these statements are regularly proclaimed in front of a defaced Hopkins sign for all Jewish and non-Jewish students to hear by people hiding their identities. Many protesters may not know what they are chanting - the connotations, allusions and meanings behind phrases thrown out by a faceless leader. You may not know what you are saying, but the groups who created these chants did - and Jews do too. We encourage everyone, protester or not, to do their own research and critically evaluate what they are saying. Ignorance is not an excuse for hate; it is your responsibility to educate yourself.

For centuries, antisemitism has contained the consistent assertion that Jews are responsible for a culture's greatest evil. In Christian Europe, we were falsely accused of being Christ killers. In Nazi Germany, we were smeared as communist race polluters. In the Soviet Union, we were besmirched as greedy, capitalist bourgeoisie. Now, encampments label us as "settler colonizers" and "Nazis" committing a "genocide." These words pervade their rhetoric with ancient antisemitic tropes.

The violence hasn't been limited to words; it has extended into the physical realm. Protestors have reportedly assaulted a member of the Jewish community - which the encampment dismissed as "baseless." With their identity obscured and groupthink rationality, protestors suddenly lose accountability and act in ways that are completely unacceptable - here or on any other campus.

It is one thing to condemn antisemitism, but actions speak louder than words.

The encampment organizers brought protesters from the broader Baltimore community onto campus. We have repeatedly seen on other campuses non-student affiliates making encampments sites of violence and vitriol. The wide calls for non-affiliate participation and antisemitic rhetoric used by the protesters attracted hateful individuals to our campus, including one who waved a swastika on N. Charles St. on May 2.

It only takes one person with ill intentions for a student to get hurt. It only takes one person for consequences that can never be taken back.

It is a stressful time on campus. As the Board of the Jewish Student Association (JSA), we want to reiterate that all Jewish community members at Hopkins have a home at Hillel. We are here for you. We are a strong community and welcome every student: whether you come to JSA events every day or have never stepped foot in our doors.

Critical thought and intellectual humility are the only ways to break through dogmatism and ideological stubbornness. Escaping echo chambers and doing the hard work of analysis allows us to understand each other and this conflict far better than we ever could alone. We are inspired by President Daniels, who wrote on May 2, "But I believe the much harder work is to now move beyond the shouting, the slogans, the call and response, and to engage in a rigorous and open-minded way with the university community on the agenda for change that you propose."

The Jewish community welcomes respectful dialogue as we work towards a better future for Israelis and Palestinians.

The Board of the Jewish Student Association.

Note that on the mayor's orders, the Baltimore police will not provide any assistance to Hopkins in dispersing the encampment, despite the fact that it's a clearly illegal trespass, and that many of the people at the encampment have no affiliation with Hopkins, creating a very real safety concern. The mayor quite wrongly has consistently suggested that the encampment is protected by the First Amendment.

But I don't want to let President Daniels and the Hopkins administration off the hook. Since last Thursday, he has been threatening students who remain at the encampment with discipline, while providing amnesty for those who leave peacefully. So far, no discipline has been forthcoming.

Today Justice Kavanaugh spoke at the Fifth Circuit Judicial Conference in Austin. I was pleased this session was open to the press, and saw several reporters in the room. The Washington Post has an early report.

Chief Judge Richman interviewed Justice Kavanaugh. It was a very engaging exchange. I thought Richman ably showed off the Justice's personal side. There were many questions about Justice Kavanaugh's daughters, and we learned that he took them to both a Taylor Swift concert and a Caitlin Clark basketball game.

Generally, these sorts of presentations repeat the same bromides, but Justice Kavanaugh made some points that (I don't recall that) he had made before.

First, Justice Kavanaugh addressed the declining number of cert grants. This term there will be about 60 merits decisions. Kavanaugh said that his ideal number would be about 75, and he observed that he has been pointing out cases that he would grant. I've praised this practice. Most of these cases are not high-profile, but they signal that Kavanaugh is closely monitoring the petitions, and flags to litigants what cases may get a grant in the future. Kavanaugh also said it is somewhat unfair to compare the present-day Court with the Court in the early 1990s when there were ~150 cert grants per year. Kavanaugh reminded us that when Justices Brennan and Marshall were on the Court, there were far more cert grants in death penalty and CrimPro cases.

One point that Kavanaugh did not address, that I have thought a lot about recently, is the "join three." With that tradition, if three justices were willing to grant cert, a fourth would provide a courtesy fourth vote–the so-called "join three." Justice O'Connor, as I recall, would frequently provide a "join three." This was how many death penalty cases were granted: Justices Brennan, Blackmun, and Marshall would vote for cert, and they would get a join-three. On the present Court, we routinely see cases with three dissents from denial, suggesting that there is no courtesy fourth vote. By my count, Justice Barrett had only one dissent from denial–she seems the Justice most hesitant to grant cert. I don't know if the "join three" is dead and buried, but it may be a vestige of a prior time.

Second, Justice Kavanaugh addressed the emergency docket–giving a shout-out to Professor Vladeck, who was at the conference. Kavanaugh spoke at some length about his opinion in Labrador v. Poe, which I have written about before. In particular, Kavanaugh explained that the predominating factor for these emergency cases is likelihood of success on the merits, rather than the balance of the harms, which generally even out. He mentioned that he had joined Justice Barrett's opinion in Does v. Mills, which focused on cert-worthiness, but Kavanaugh downplayed that factor, as he did in Labrador. I think Kavanaugh is exactly right. And that message was heard loud and clear by all the Fifth Circuit judges in the room.

Third, Justice Kavanaugh spoke about the process of drafting opinions. Kavanaugh explained that at conference, one of the hardest tasks is figuring out if there are five votes for a majority opinion–though he always favors unanimous opinions. As is well known, at conference each Justice gets to speak at least once before anyone speaks twice, starting with the Chief Justice. But after everyone speaks once, Kavanaugh said, it becomes something of a free-for-all. The Chief will call on people, like in school, Kavanaugh mentioned. Next comes the opinion writing process. Kavanaugh explained that when you see adverbs like "ordinarily" or "generally" in an opinion, those words were necessary to hold a majority opinion. Ditto for a footnote that seems to undermine everything the majority opinion said. Sometimes, Kavanaugh said, providing clearer resolution will have to wait for another case.

Fourth, Justice Kavanaugh addressed oral argument at the Court. For his first two terms, the Court followed the traditional one-hour limit. Kavanaugh said it felt frustrating when he would ask one question in a line of questions, and then get cut off by another Justice. Kavanaugh said he very much likes the new format, including the round-robin seriatim round. It lets him follow through on a line of questions from start to finish. He was also happy that Justice Thomas now has an opportunity to ask questions. Kavanaugh mentioned that not everyone is happy with the new format. He called out Paul Clement as one such skeptic; by contrast, Kavanaugh said, Lisa Blatt likes the format. (Clement & Blatt will give the SCOTUS roundup at the conference on Saturday morning).

Justice Kavanaugh also seemed quite relaxed and open. He was enjoying himself. The first five years of his tenure were remarkably chaotic. From the confirmation hearings to COVID to the assassination attempt, and everything in between. But he looked at ease now, and stayed afterwards to shake hands and take pictures with everyone. It is sometimes said that it takes a new Justice five years to find his or her rhythm. I think Kavanaugh is now hitting his stride. I've praised several of his opinions this year. I will, of course, reserve judgment till the end of June, but so far, this has been his most effective term on the Court.

Today a unanimous panel of the U.S. Court of Appeals for the D.C. Circuit rejected Stephen Bannon's appeal of his conviction for contempt of Congress for failing to comply with a congressional subpoena. Judge Garcia wrote the opinion in United States v. Bannon, joined in full by Judges Pillard and Walker.

Here's how Judge Garcia summarizes the case:

In September 2021, the House Select Committee to Investigate the January 6th Attack on the United States Capitol issued a subpoena to appellant Stephen Bannon to testify and provide documents. Bannon did not comply—he knew what the subpoena required but did not appear or provide a single document. Bannon was later convicted of violating the contempt of Congress statute, 2 U.S.C. § 192, which criminalizes "willfully" failing to respond to a congressional subpoena. Bannon insists that "willfully" should be interpreted to require bad faith and argues that his noncompliance does not qualify because his lawyer advised him not to respond to the subpoena. This court, however, has squarely held that "willfully" in Section 192 means only that the defendant deliberately and intentionally refused to comply with a congressional subpoena, and that this exact "advice of counsel" defense is no defense at all. See Licavoli v. United States, 294 F.2d 207, 207 (D.C. Cir. 1961). As both this court and the Supreme Court have repeatedly explained, a contrary rule would contravene the text of the contempt statute and hamstring Congress's investigatory authority. Because we have no basis to depart from that binding precedent, and because none of Bannon's other challenges to his convictions have merit, we affirm.