There are warrants — but the public hasn't seen them
There are warrants — but the public hasn't seen them
The FBI warrants are big news, but what now? Also: An alleged abortion-related prosecution in Nebraska is a sign of things to come. And: San Francisco's new DA had a secret.
Needless to say, the news cycle has done the opposite of slowing down.
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THIS WARRANTS ATTENTION: The Federal Bureau of Investigation is on the move, having executed search warrants at former President Donald Trump’s Mar-a-Lago Club and on Rep. Scott Perry for his phone on Monday and Tuesday, respectively.
My key takeaways:
As others have noted, and I mentioned on Twitter, it is important that both Trump and Perry are making dramatic claims that the FBI’s actions are improper, but neither have shared the search warrants publicly or with any media — even friendly media.
These “overt investigative steps” are significant steps that the FBI and Justice Department officials certainly knew would both draw attention to their work and prompt opposition to them and their work. (That’s both obvious and important.)
Particularly as to the Trump warrant — both due to him being the former president and due to him being Donald Trump — it would seem that such a warrant shouldn’t be executed until pretty much everything else in the investigation has been completed. (A subject to which we will return.)
Attorney General Merrick Garland’s “Election Year Sensitivities” memo and the broader, related understanding of the memo, which is a further iteration of a longstanding, regularly issued DOJ memo (slightly expanded by former Attorney General Bill Barr), come into play here. Under that understanding, such overt steps will come to an end soon — likely by no later than the week of Labor Day, which is Sept. 5 — and stay that way (unless rare exceptions apply) until after the November elections.
Justice moves slow — but this is not a normal time. These warrants either mean that this blip of admittedly high-profile activity is the last we hear of the FBI’s Trump-related investigations until after the elections — or it means substantially more is coming in quick order. With more ordinary investigations, I would think it’s the former. But I’m not so sure that’s what we’ll see here.
As to Trump:
It is hard for me to imagine the FBI taking Monday’s step against Trump unless FBI and DOJ officials believe that further steps would be taken before Labor Day week — if the evidence obtained merited it, of course. To leave this sitting out there from now until after November’s elections would seem to be ill-advised in this environment — even if Trump isn’t on the ballot or a declared candidate.
The counterargument: The Trump-related investigation isn’t coming to a close, but the FBI had a reason to believe they needed to execute the Mar-a-Lago warrant now. The rest won’t come until after the election.
As to Perry:
There also is an argument that the FBI shouldn’t have taken Tuesday’s step against Perry unless DOJ and the FBI are prepared to move things along quickly in that investigation. (He has been a recurring figure in stories of Trump’s post-election schemes to overturn the election.) Perry is up for re-election in November, and the FBI seizing his phone less than a month before Labor Day — while not an accusation of any crime — is certainly a dark cloud to leave sitting over him as he faces voters.
The counterargument: Perry is by no means the top figure in this investigation, so seizing his phone this week is an attempt to take this overt step and no others, at least relating to him, until after the election.
POLICING PREGNANCY: On Monday, Jessica Valenti highlighted a case out of Nebraska, in her All in Her Head newsletter and on Twitter — in which a teenage girl and her mother are facing felony charges resulting from an investigation into her reported miscarriage.
The Norfolk Police Division in Madison County, Nebraska, began an investigation into the teen’s reported miscarriage on April 26, according to court documents. (It has not been made clear how the police even found that out, although the court documents imply that someone the family told about the circumstances either informed police or shared the information with someone else who told police.) Since then, the police — all before the U.S. Supreme Court’s Dobbs decision came down, mind you — obtained information for their investigation by at least one of the teen’s medical providers, at least two members of the community (one of whom has pleaded guilty to a misdemeanor charge), and Facebook in their investigation.
Although there had been earlier local reporting on the case, the Lincoln Journal Star began the reporting this week with a Monday, Aug. 8, story that Valenti picked up in her newsletter. On Tuesday, Aug. 9, the story was then picked up by several national outlets, including Vice and NBC News, both of which published several of the relevant court documents.
From Vice:
The state’s case relies on evidence from the teenager’s private Facebook messages, obtained directly from Facebook by court order, which show the mother and daughter allegedly bought medication to induce abortion online, and then disposed of the body of the fetus. While the court documents, obtained by Motherboard, allege that the abortion took place before the Supreme Court overturned Roe v Wade in June, they show in shocking detail how abortion could and will be prosecuted in the United States, and how tech companies will be enlisted by law enforcement to help prosecute their cases.
Ultimately, none of this is surprising given past experience. As I wrote at Bolts a month ago:
Despite the exemption of pregnant people from direct prosecution under many abortion bans, that does not mean they are or will be safe from investigation or prosecution. Other laws have regularly been used—even under Roe—to criminalize or otherwise punish pregnancy outcomes. … [Additionally,] technology has opened the world around us—but that opened world could lead to new outside help for enforcement efforts. Technological tools can be used by law enforcement to track alleged illegal activity, and worries over data privacy are rising.
In addition to two charges relating to the family’s alleged attempt to bury the fetal remains, the teenage girl is facing one charge of “false information” relating to “material” information the prosecutor claims she told the police. The charging document does not specify what information forms the basis of that particular charge. If it relates to her alleged claim that the baby was stilborn (as noted in a June 7 search warrant affidavit), however, that would show how ultimately empty the statements are from lawmakers and others that women and other pregnant people won’t be prosecuted for abortions they seek or obtain.
Further still, this case suggests the disparate ways these bans are going to be enforced. In addition to also facing the three charges her daughter faces, the mother of the pregnant teenager is facing one charge for inducing or attempting to induce an abortion after 20 weeks and another for doing so without being a physician.
We don’t know all of the facts yet and the family hasn’t yet had their opportunity to challenge the state’s claims, but regardless of those case-specific issues — which are certainly important on their own — this is a real example of how the medical community, the larger community, and the companies tracking our digital footprint all combine to serve as agents of the state in the state’s attempts at policing pregnancy.
Additionally, regardless of the outcome of the case, this teenage girl — 17 years old when she was pregnant — was named by the local news and national outlets, has been charged as an adult, and will have this (speaking of the internet) likely be the top search result for her for years to come.
This is what policing pregnancy in 2022 — often in states with far more severe abortion restrictions — can and will look like.
ON THE PAYROLL: You must read this news from Michael Barba at The San Francisco Standard about San Francisco’s newly appointed district attorney:
Brooke Jenkins didn’t just quit her job as a local prosecutor to volunteer for the recall against her former boss Chesa Boudin.
Newly filed ethics records show she also raked in more than $100,000 as a consultant for Neighbors for a Better San Francisco, a nonprofit that shares an address and virtually the same name as the organization behind the district attorney’s recall but is legally a separate entity. A board member for both groups was also one of the biggest funders supporting the recall.
Did San Francisco Mayor London Breed know about this when she appointed her to the job after Boudin’s recall?
NEW SCHOLARSHIP: I noticed that both University of Chicago Law’s Will Baude and American Immigration Council’s Aaron Reichlin-Melnick pointed to a new article today, which is a pretty strong argument in itself that this article about qualified immunity from Alex Reinert is worth checking out:
In the article, Reinert questions the underlying legitimacy of the Supreme Court’s qualified immunity doctrine — which allows all manner of government officials, including law enforcement, to violate people’s rights in all manner of awful ways and not have to face a lawsuit for it.
In one particularly interesting part of the article, Reinert shows that there is, essentially, a missing part of Section 1983, the federal civil rights law that allows for private lawsuits against public officials for violating constitutional rights (but is dramatically limited by qualified immunity).
From the abstract of Reinert’s article:
[S]cholars and courts have overlooked the originally-enacted version of Section 1983, which contained a provision that specifically disapproved of any state law limitations on the new cause of action. For unknown reasons, that provision was not included by the Reviser of the Federal Statutes in the first compilation of federal law in 1874. This Article is the first to unearth the lost text of Section 1983 and demonstrate its implications.
Check it out.