Trump, SCOTUS, and what happened at the medication abortion hearing last week

With Trump indictment rumors swirling — care of Trump himself — the week has started early. SCOTUS is back on the bench.

It’s shaping up to be a busy week, so, let’s jump into things.

Of course, the big question is whether former president Donald Trump is going to be arrested this week, as he claimed over the weekend is going to happen Tuesday.

Of the three (known) grand juries to be hearing or having heard matters related to Trump, this is about the one coming out of New York and the 2016 payment to Stormy Daniels.

Charlie Savage at The New York Times had a good primer on Sunday going through the potential charges that Trump could face, out of the Manhattan district attorney’s investigation and elsewhere.

At the same time, however, the U.S. Supreme Court is back in session this week, with one or more opinions in argued cases expected starting at 10:00 a.m. Tuesday.

So, yes, Tuesday could be a very busy day.

Additionally, orders (when the justices could grant new cases) from last week’s private conference of the justices will be filed at 9:30 a.m. today and oral arguments are scheduled in cases for today, Tuesday, and Wednesday. I’ll be covering the orders and opinion(s) over on Twitter.

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FIRST, THOUGH: Last week, U.S. District Judge Matthew Kacsmaryk held a preliminary injunction hearing in the Alliance Defending Freedom’s case challenging the FDA’s approval of mifepristone for medication abortions back in 2000, as well as a more recent action ending the in-person dispensing requirement.

Kacsmaryk initially told lawyers in the case in a secret conference that he might hide word of the March 15 hearing in Amarillo, Texas, until after business hours on March 14, effectively shielding the hearing from most media, due to Amarillo’s remote location. As everyone knows by now, however, Kacsmaryk’s plan was foiled by a leak. The hearing was publicized ahead of time, media members were there, and audio was even livestreamed to the federal courthouse in Dallas.

On March 17, NPR published the transcript from the more than four-hour hearing, which I reviewed over the weekend.

The hearing, unsurprisingly, showed that Kacsmaryk went into it with substantially more understanding of and potentially even sympathy to the plaintiffs’ claims, most notably a claim that there was a “mismatch” between the conditions in the studies underlying the FDA’s approval of the drug and the conditions the FDA set for its use. There was also discussion of several amicus curie (friend of the court) briefs from the right, including one previously covered at Law Dork by 22 Republican-led states, sometimes raised by Kacsmaryk with no prompting from counsel.

But, as became clear throughout the hearing, it might have been necessary for Kacsmaryk to look more to non-party counsel on the plaintiffs’ side because counsel for the government and intervenor really did an incredible job of covering all of the reasons why plaintiffs’ preliminary injunction request must fail.

Across the board — on whether plaintiffs have standing, on exhaustion (and statute of limitations) questions, on the merits of their claims, on the Comstock Act arguments (seriously), and on the plaintiffs’ proposed remedies — the Justice Department and intervenor Danco Laboratories presented exceptionally strong arguments that threw into question, at the least, the scope of plaintiffs’ case, if not the entire case.

As I wrote in a thread over on Twitter:

Chris “Subscribe to Law Dork!” Geidner @chrisgeidner

To side w/ plaintiffs, Kacsmaryk would to have to slide into standing and ignore exhaustion/statute of limitations questions to get to the merits, at which points the plaintiffs' args are weak but he could find a way. Even then, tho, plaintiffs' sought remedy falls apart. [2/2]

Specifically, by the end of the argument, even Kacsmaryk was questioning the remedy being sought by plaintiffs — an order, at the preliminary injunction stage, that the FDA withdraw its 2000 approval of mifepristone, along with its subsequent approvals.

Chris “Subscribe to Law Dork!” Geidner @chrisgeidner

By the end of the argument, this is from rebuttal, even Kacsmaryk was referring to the plaintiffs' proposed remedy as "sweeping authority." And the only case the plaintiffs cited for an example of this authority was, per DOJ/intervenors, vacated by an appeals court. (pp. 145-46)

Anything could happen — and much has been made of Kacsmaryk’s background and rulings thus far on the bench — but DOJ and Danco’s lawyers made as strong a case as possible that Kacsmaryk would be going far afield of the law by doing anything about the 2000 approval of mifepristone, especially with these plaintiffs on these facts. The same holds for the 2016 approval of Danco’s drug, Mifeprix. Even as to the in-person dispensing requirement, standing and other non-merits questions remained, as well as the question of the appropriate remedy even if plaintiffs succeeded on the merits.

Kacsmaryk, in concluding the hearing, said he would “issue an order and opinion as soon as possible,” but no specific timeline was given. He did suggest, near the end of the Justice Department’s arguments, that he might call for supplemental briefing before an order, a move that would delay any ruling.

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THREE UNSURPRISING, BUT STILL IMPORTANT, STORIES:

The first story is not altogether surprising, or particularly new, but it does reflect a growing reality about the legal right that cannot be ignored.

b-boy bouiebaisse @jbouie

legal conservatives moving toward open embrace of minority rule

politico.comThe Federalist Society Isn’t Quite Sure About Democracy AnymoreAfter recent Supreme Court wins, the society’s youth arm debates the next stage for the conservative legal movement.

The second story is unsurprising, insofar as this has been a long-held belief by many that was regularly discussed, in general, but it is something else to see it so clearly confirmed in such a definitive and specific way.

Peter Baker @peterbakernyt

More than four decades later, a secret revealed: How a prominent Texas politician says he unwittingly joined a mission to sabotage Jimmy Carter's 1980 campaign by urging the Iranians to hold 52 American hostages until after the election.

nytimes.comA Four-Decade Secret: One Man’s Story of Sabotaging Carter’s Re-electionA prominent Texas politician said he unwittingly took part in a 1980 tour of the Middle East with a clandestine agenda.

The third is just unsurprising.

Mike Sington @MikeSington

“I’m a captain.” Police Captain James French with the Oklahoma City Police Department is arrested for drunk driving. Three times he whispers to the arresting officer, “turn your camera off”.

Also unsurprising, from Fox 25, “French has been placed on administrative leave with pay pending the outcome of the investigation.”