EJ
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epainter.bsky.social
EJ
@epainter.bsky.social
160 followers 420 following 58 posts
Texas and West Virginia
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Reposted by EJ
americalabs.org
So, if there's a scale of 1-100 of Dem likelihood to fight and achieve something on a shutdown.

The day before the shutdown, R's and pundits would have assigned it a "1".

Now it's a "5".

That's better, but not yet a credible negotiating threat.
November 10, 2025 at 2:51 PM
Reposted by EJ
emptywheel.bsky.social
The section on ratification is genuinely interesting, legally, if you ignore how ridiculous it was that Trump's corrupt AG tried to do this on Halloween.

But don't ignore that point. It makes it funnier.
In any event, Section 3288 would not allow the government to reindict Mr. Comey if the indictment were dismissed. The grace period is triggered only if an “indictment is found,” 18 U.S.C. § 3282; but here, the purported indictment was void ab initio. And the government cannot “grant itself a six-month extension of the statute of limitations . . . simply by filing a patently defective and meaningless charging document.” United States v. Gatz, 704 F. Supp. 3d 1317, 1330 (S.D. Fla. 2023). Moreover, Section 3288 states that “[t]his section does not permit the filing of a new indictment . . . where the reason for the dismissal was the failure to file the indictment . . . within the period prescribed by the applicable statute of limitations, or some other reason that would bar a new prosecution.” Id. (emphasis added). That proviso applies here. Using an illegal appointment to procure an indictment days before the statute of limitations expires—thus depriving a person of repose—is precisely the type of “reason” that must “bar a new prosecution” under Section 3288. Indeed, Section 3288 expressly precludes reindictment when the first indictment was filed after expiration of the statute of limitations. To give that provision meaning, the statute must also bar new prosecutions when a void purported indictment is secured simply to prevent the statute of limitations from expiring. Any other reading would “obliterate the statute of limitations.” United States v. Clawson, 104 F.3d 250, 252 (9th Cir. 1996).
November 10, 2025 at 9:56 PM
Reposted by EJ
emptywheel.bsky.social
More on a shiv that Abbe Lowell will deploy that Pat Fitz will not, in my experience: You cowards refuse to disavow Trump.
In faulting Attorney General James for “try[ing] to bootstrap” a Section 546 violation into a violation of the Appointments Clause, the government betrays a fundamental misunderstanding of how the two provisions relate. The government again attempts to slay a strawman in emphasizing that “not every action in excess of statutory authority is ipso facto in violation of the Constitution.” Br. 23 (citation omitted). That is not what Attorney General James argues. Attorney General James’s theory of a constitutional violation is grounded in the plain text of the Appointments Clause and does not, as the government mistakenly claims, provide that “every statutory violation would become a constitutional violation.” Br. 23 (emphasis omitted). The Appointments Clause dictates that inferior officers like U.S. Attorneys can be appointed only 1) by the President “with the Advice and Consent of the Senate,” or 2) through a process that Congress has properly authorized “by Law.” An appointment that comports with neither of these pathways violates the Appointments Clause. In United States v. Trump, 740 F. Supp. 3d 1245, 1304 (S.D. Fla. 2024), the district court recognized that if an inferior office is appointed in a manner that does not comply with any statute, her appointment violates the Appointments Clause. The government contends that Attorney General James’s theory of Appointments Clause violations is too broad, but tellingly, it does not argue that Trump was incorrectly decided.
November 10, 2025 at 10:49 PM
Reposted by EJ
emptywheel.bsky.social
This is another ¶ that could blow up later.

The stated purpose of this prosecution is to assume due process doesn't exist.
The government’s only other argument against dismissal with prejudice depends on upending one of the most basic and fundamental premises of our criminal justice system: the presumption of innocence. The government asserts (ECF No. 138 at 42) that dismissal with prejudice would “thwart[] the public’s interest in the enforcement of its criminal law” because it would allow Mr. Comey “to escape accountability for lying to and obstructing Congress.” But the assumption that Mr. Comey must be guilty—before any public airing or testing of its evidence—disregards bedrock principles underlying our system of justice. The government’s unfounded assumptions of guilt cannot excuse its egregious constitutional violations.
November 11, 2025 at 12:05 AM
Reposted by EJ
emptywheel.bsky.social
Tish James' comparators, part 1: Paxton, Wicker, Bessent.
For example, reports indicate that Texas Attorney General Ken Paxton declared three of his ten properties as his primary residence, which receive significantly more favorable mortgage rates than investment properties.59 While Mr. Paxton resides in one house in the Dallas, Texas, suburbs, his other two “primary residences” are in Austin.60 He claimed a fourth home, in College Station, Texas, as a secondary residence—not a rental property—even though he has listed that house for rent seven times since 2015, and there is no indication that Mr. Paxton uses this property.61 Public real estate records also reportedly show that Senator Roger Wicker declared primary residences in both Tupelo, Mississippi, and Alexandria, Viriginia—the latter of which falls within Ms. Halligan’s jurisdiction.62 Scott Bessent, the Secretary of the Treasury, reportedly agreed to occupy two different vacation houses as his “principal residence” at the same time.63 And reports indicate that no fewer than three other members of President Trump’s cabinet have claimed multiple primary residences.64
November 7, 2025 at 10:45 PM