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A split Ninth Circuit on Monday dismissed the Justice Department’s appeal seeking an injunction to set aside 20,000 California mail ballots for lack of jurisdiction. The majority wrote that the government failed to allow adequate time to exhaust remedies at the lower court level, while Judge Patrick Bumatay in the dissent argued that the federal government would likely end up prevailing on the merits regardless. (Order.) (The Hill.) (Politico.)
Judge Jesse M. Furman (S.D.N.Y.) ruled on Monday that the Justice Department unlawfully fired Maurene Comey. He reasoned that her removal was not statutorily authorized, and the government’s argument that Article II bars Congress from regulating the removal of AUSAs is unpersuasive given contrary Supreme Court precedent on the Appointments Clause. (Opinion.) (WaPo.)
The Justice Department charged former FBI Director James Comey a third time, by a sealed criminal information that was unsealed Monday by Judge Trevor N. McFadden (D.D.C.). The information accuses Comey of unlawfully disclosing national defense information in October 2016 and of conspiring to leak it to a reporter. (Information.) (NYT). Jack Goldsmith called the case “so obviously a sham” and argued, as Comey does in a motion to dismiss, that it should be dismissed because the ten year-limitations period for the offense can be satisfied only by a grand jury indictment, which the department never obtained. (Motion to Dismiss.) (Executive Functions.)
Six readers of White House news coverage, including Lawfare editor-in-chief Benjamin Wittes, sued President Trump, Susie Wiles, and Steven Cheung on Monday over the White House press-access policy. The plaintiffs argued the Administration’s actions interfere with Americans’ First Amendment right to receive accurate reporting on the presidency. (Complaint.) (Politico.) (The Hill.)
Refugee groups and refugees on Monday filed a class action in the District of Massachusetts against several DHS and USCIS policies that they argue keep refugees from obtaining lawful permanent residency and place them at risk of having their refugee status terminated without a meaningful opportunity to be heard. (Complaint.) (The Hill.)
The Peltola campaign and the Democratic Senatorial Campaign Committee on Sunday moved to intervene in and dismiss the Alaska election case, arguing that the “case never should have been filed.” (Motion to Dismiss.) (NBC.) For more information, see yesterday’s Roundup. Justin Levitt argued that the Justice Department’s Alaska and California suits fail for lack of any cause of action. (Election Law Blog.)
Bob Bauer highlighted data showing a surge in public disapproval of perceived presidential corruption and argued that public alarm over Trump’s self-enrichment “materialized primarily as a critical response to governance failure.” (Executive Functions.)
Elena Chachko, Kathleen Claussen, and David Zaring argued that the legality and impact of executive orders depend on whether and how agencies implement them, and that perfect implementation of these directives is far from assumed. They also analyzed what it would take for executive orders to translate presidential priorities into durable change. (SSRN.)