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This Day in Legal History: Susan B. Anthony Votes On November 5, 1872, Susan B. Anthony walked into a polling place in Rochester, New York, and cast a ballot in the presidential election, along with fourteen other women from her ward. This was a deliberate legal test. Anthony and other suffragists argued that the Fourteenth Amendment, ratified four years earlier, made women citizens, and that voting was one of the privileges of citizenship that no state could deny. Two weeks later, a deputy federal marshal arrested her at her home for voting illegally. She refused to post bail. At her trial in June 1873, before Justice Ward Hunt of the Supreme Court, sitting as a trial judge, she wasn’t allowed to testify, and at the close of evidence the judge directed the all-male jury to return a guilty verdict, without letting them deliberate. When asked if she had anything to say before sentencing, Anthony delivered a famous speech condemning the proceedings. She was fined $100 and never paid it. Two years later, in Minor v. Happersett, the Supreme Court rejected the argument outright, holding that citizenship didn’t automatically include the right to vote. The significance of November 5, 1872 is that Anthony used the law itself, a vote, an arrest, and a trial, to expose the gap between constitutional promises and how they were applied. It took until 1920 and the Nineteenth Amendment to close it. Her case is a reminder that legal change often begins with someone willing to test the boundaries of what they’re allowed to say and do, and that’s exactly the question in our first story. A federal judge in Kentucky will hold a hearing later this month on whether the University of Kentucky violated the First Amendment by suspending a tenured law professor over his comments about Israel. The professor, Ramsi Woodcock, has made statements describing Israel as a “colonization project” and calling for the world to wage war against it. The university barred him from teaching and opened an investigation, which Woodcock says was driven by political pressure from state lawmakers seeking tougher action against antisemitism. Reports indicate the judge declined to give Woodcock an immediate order returning him to the classroom but set a hearing on his broader request for a preliminary injunction. Reports differ on some details of the procedural history, so I’ll keep this at the level of the legal framework. Here’s how courts analyze this. Woodcock works for a public university, so the First Amendment applies. When a public employer disciplines an employee for speech, courts use a balancing test from Pickering v. Board of Education and later cases. If the employee spoke as a private citizen on a matter of public concern, which commentary on Israel and the war in Gaza plainly is, the court weighs the employee’s free-speech interest against the employer’s interest in running its operations effectively, including avoiding disruption. Speech that’s offensive, even deeply offensive to many people, generally remains protected; the question is whether it caused or was reasonably likely to cause the kind of disruption that justifies discipline. Professors have an additional layer of protection, because courts have long recognized academic freedom as a special concern of the First Amendment. On the other side, universities have obligations under federal civil rights law to address harassment of students, including antisemitic harassment, and statements calling for war can raise questions about whether they cross from advocacy into something else. The judge will have to sort out where Woodcock’s statements fall. This case joins several others around the country, and the answers matter for public universities everywhere. Judge to review US law professor’s suspension in free speech case over Israel remarks | Reuters · Court Cast · AOL Google, Meta, and TikTok have each sued to block California’s new law restricting social media features for children under 16. We covered the law when Governor Newsom signed it in September as part of a package of what he called the strongest child-safety tech laws in the nation. The law, Assembly Bill 1709, bars platforms from giving users under 16 “psychologically exploitative” features that can lead to compulsive use, like personalized recommendations and autoplay, and requires deleting children’s accounts that use those features. The three companies filed separately in three federal courts: Google in San Jose, Meta in San Francisco, and TikTok in Los Angeles. They argue the law violates the First Amendment and Section 230 of the Communications Decency Act, that it forces them to present content the way the state prefers, and that it substitutes the state’s judgment for parents’ choices. The Electronic Frontier Foundation has also criticized the law as a privacy and free-speech problem, partly because enforcing age limits generally requires verifying users’ ages. This was predictable, and the companies have strong arguments. In 2024, in Moody v. NetChoice, the Supreme Court said that when platforms curate and arrange third-party content, they’re engaged in editorial activity protected by the First Amendment, much like a newspaper choosing what to print. A personalized feed is a curation decision. California will argue the law regulates design features and conduct, not speech, and that protecting children’s mental health is a compelling interest. Courts have split on similar laws, blocking several state restrictions on minors’ social media access while allowing some narrower ones. The outcome will likely turn on whether the court sees recommendation algorithms as speech or as product design. Notably, TikTok just agreed in its Alabama settlement to give teens a default non-personalized feed. That was a voluntary deal, but it shows the kind of change states are pushing for, now by statute. Google, Meta, TikTok sue to block California youth social media law | Reuters · Bloomberg Law · Yahoo News And finally, the President’s planned 250-foot triumphal arch in Washington is close to receiving federal approval, possibly as soon as today, and the government has said construction could begin right after. But a federal judge is weighing whether to block it. Several lawsuits are pending: one by Vietnam War veterans before U.S. District Judge Tanya Chutkan, who reportedly seemed skeptical of the rush, and others by the District of Columbia, Virginia, and Arlington County. The legal issue is authorization. Building a monument on federal land in the capital isn’t simply up to the executive branch. Congress has long controlled what gets built on the National Mall and surrounding federal parkland, and federal law generally requires congressional authorization for new memorials in the area, along with review by planning and arts commissions. Major federal projects also have to comply with environmental and historic-preservation review laws. The administration’s answer is creative: it says Congress already approved the arch more than a century ago, when it authorized a bridge across the Potomac. The challengers say a century-old bridge authorization can’t plausibly cover a new 250-foot arch. There’s a recent precedent: another federal judge, Richard Leon, blocked construction of the White House ballroom project, reasoning that Congress must authorize it first. Why does the rush matter? Like the felled trees at East Potomac Golf Links we covered last month, construction can create facts on the ground that are hard to undo. That’s exactly why judges consider emergency relief before work begins. There’s one more twist. As we discussed yesterday, Democrats will control Congress in January. If the administration is relying on old congressional authorization, it may be because getting new authorization from this Congress, or the next one, looks unlikely. Trump’s Washington arch poised for approval as judge weighs bid to block construction | Reuters · NPR · Time This is a public episode. If you'd like to discuss this with other subscribers or get access to bonus episodes, visit www.minimumcomp.com/subscribe

This Day in Legal History: The Tehran Embassy Seizure On November 4, 1979, Iranian students stormed the U.S. embassy in Tehran and took dozens of Americans hostage. Fifty-two of them would be held for 444 days. In response, President Jimmy Carter invoked the International Emergency Economic Powers Act, a statute Congress had passed just two years earlier, and froze billions of dollars in Iranian assets in the United States. The crisis ended in January 1981 with the Algiers Accords, in which the United States agreed to unfreeze Iranian assets, end pending lawsuits against Iran in American courts, and send those claims to a new international tribunal. A company called Dames & Moore, which had been trying to collect money it said Iran owed it, challenged that agreement. In Dames & Moore v. Regan, decided that July, the Supreme Court upheld the President’s actions. It found that the asset transfers were authorized by the emergency powers statute, and that while no statute expressly authorized suspending the lawsuits, Congress had long accepted presidential settlement of such claims, which the Court treated as implied approval. The significance of November 4, 1979 is the legal principle the crisis produced: presidential power is at its strongest when it rests on authority Congress has already given, even a Congress elected years earlier. That’s directly relevant to our lead story, because when control of Congress changes, the powers earlier Congresses delegated to the executive branch don’t disappear. Democrats have won control of both the House and the Senate, according to unofficial results from yesterday’s midterms. As of early this morning, the Associated Press had called 228 House seats for Democrats, well past the 218 needed for a majority, with dozens of races still uncalled. In the Senate, Democrats held 54 seats to Republicans’ 44, with the races in Alaska and Mississippi still too close to call. Recall that Alaska is where the Justice Department sued to block certification if Republican Sen. Dan Sullivan lost, so watch that one. Final numbers will change, but the bottom line won’t: the President’s party will no longer control either chamber. The new Congress takes office on January 3, 2027. Until then, the current Congress, with its Republican majorities, can still pass legislation and confirm nominees in a lame-duck session. Winning an election and exercising the powers that come with it are two different things, and existing statutes and regulations keep operating until someone changes them through a lawful process. So what can a Democratic Congress actually do? The key distinction is between blocking new policy and changing existing law. Blocking is easy: either chamber can stop any bill simply by refusing to pass it, so Republican legislative priorities are effectively stalled. But enacting new law is much harder. Both chambers have to pass identical text and present it to the President, who can veto it. Overriding a veto takes two-thirds of each chamber. And in the Senate, most legislation still needs 60 votes to end a filibuster. A 54- or 55-seat majority clears neither bar. There are special procedures, like budget reconciliation, that avoid the filibuster for certain budget measures, but those bills still go to the President and can still be vetoed. Meanwhile, the President keeps substantial power. Agencies can keep using the authority earlier Congresses delegated to them, issuing, revising, or repealing regulations, though they still have to follow the required procedures and survive judicial review. A new majority’s disagreement doesn’t withdraw that authority. That doesn’t leave Congress powerless. It has three main tools to constrain the executive branch. First, it can amend an agency’s governing statute to narrow its authority or impose new duties. Second, it controls appropriations: it can attach riders like “none of the funds in this Act may be used to implement Policy X,” and, more importantly, it can refuse to fund the government on terms it doesn’t accept, which gives it real leverage in every budget negotiation. Third, it can use the Congressional Review Act to overturn eligible agency rules with a simple majority and no filibuster. But all three share the same limit: they have to become law, which means the President can veto them. The CRA in particular is mostly useful when Congress and the President agree; it’s not a tool for overturning a President’s own rules over his objection. The tools that don’t require the President’s signature are oversight and appointments. With control of committees, Democrats can hold hearings, demand documents, and issue subpoenas, choosing which agency actions get sustained public scrutiny. That can produce facts, political pressure, and the record for future legislation, though subpoena fights often end in negotiations or litigation over executive privilege. The Senate, and only the Senate, votes on nominations, so the new majority can reject or simply decline to act on nominees for agency leadership and federal judgeships. That doesn’t remove officials already serving, and federal law lets some vacancies be filled temporarily by acting officials. And for those wondering about impeachment: the House can impeach by a simple majority, but conviction and removal require two-thirds of senators present, 67 if all are voting, which no plausible Democratic majority reaches alone. Democrats win House, Senate | ABA Banking Journal · CBS News Kraft Heinz has agreed to sell its North American coffee business, including Maxwell House, Gevalia, Yuban, Sanka, and Tassimo, to the private equity firm One Rock Capital Partners at an enterprise value of about $650 million. Kraft Heinz will keep a 30% non-controlling stake, and the deal is expected to close in mid-2027, subject to regulatory approval. The sale is part of a turnaround effort by CEO Steve Cahillane, who took over in January and put on hold a planned split of the company into two businesses, while keeping that option open. A few legal points. Structurally, this is a carve-out: separating one business from a larger company. Carve-outs are legally complex because the business being sold usually shares factories, supply contracts, IT systems, employees, and brands with the rest of the company. Deals like this typically come with transition services agreements, in which the seller keeps providing certain services for a period while the buyer builds its own. Kraft Heinz’s retained 30% stake keeps it invested in the business’s success without control, and comes with its own questions about governance rights and future exit options. And “subject to regulatory approval” generally means antitrust review under the Hart-Scott-Rodino Act, which requires notifying federal antitrust agencies before deals above a certain size can close. A private equity buyer without other coffee brands is unlikely to raise competition concerns, but the waiting period still has to run. More broadly, this reflects a trend among packaged-food giants of shrinking their portfolios to focus on faster-growing products. Some of the most familiar names in American grocery stores, Maxwell House among them, are moving out of public companies and into private ownership. Kraft Heinz to divest North America coffee unit amid Cahillane’s turnaround effort | Reuters · The Globe and Mail · RTTNews And finally, The New York Times has sued Brave Software, the company behind the Brave web browser and the Brave Search engine, in federal court in Manhattan. The Times alleges Brave copied its paywalled journalism and made it available to AI companies through Brave’s search index and its search API, a product that lets other companies, including AI developers, pull search results and content into their own systems. The Times also alleges that a feature in the Brave browser lets users get past its paywall. The New York Daily News, the Chicago Tribune, and the Orlando Sentinel filed their own suits, which repor… This is a public episode. If you'd like to discuss this with other subscribers or get access to bonus episodes, visit www.minimumcomp.com/subscribe

This Day in Legal History: Elk v. Wilkins On November 3, 1884, the Supreme Court decided Elk v. Wilkins. John Elk was a Native American man, born on tribal land, who had left his tribe, moved to Omaha, and lived among the city’s residents. In 1880, he tried to register to vote. The registrar, Charles Wilkins, refused, on the ground that Elk wasn’t a citizen. Elk sued, relying on the Fourteenth Amendment, which says that all persons born in the United States and “subject to the jurisdiction thereof” are citizens. The Court ruled against him, 7 to 2. It held that Native Americans born into tribal nations weren’t “subject to the jurisdiction” of the United States in the sense the amendment required, and that leaving his tribe and living as a citizen didn’t make Elk one without some act of Congress naturalizing him. Justice John Marshall Harlan, whom we profiled last month, dissented, arguing that a man who had given up his tribal allegiance and lived under American law was exactly the kind of person the Fourteenth Amendment was meant to include. The significance of November 3, 1884 is that it took another forty years, until the Indian Citizenship Act of 1924, for Congress to declare all Native Americans born in the United States to be citizens, and longer still before some states stopped finding ways to keep them from voting. On Election Day, it’s a reminder that the questions of who is a citizen and who gets to vote have been contested throughout American history, and that a registrar’s decision about one voter’s eligibility can end up in the Supreme Court. Today’s stories are the latest chapter in that history. The Supreme Court has refused the administration’s emergency request to make California set aside about 20,000 mail ballots from people the Justice Department says are likely noncitizens. The administration filed its application Monday morning, and the Court denied it the same day, without explanation and with no noted dissents, hours before the polls opened. That makes four courts in a row, by California’s count, to reject the effort: the Ninth Circuit’s first dismissal last week, Judge David Carter’s denial of a restraining order, the Ninth Circuit’s rejection of the emergency appeal on Friday, and now the Supreme Court. California says the government’s list is riddled with errors, and recall that Los Angeles County found most names in one sample were tied to canceled or inactive registrations. The Court’s decision not to step in is notable for a couple of reasons. First, it’s consistent with the Court’s general reluctance to change election procedures at the last minute, a principle that has cut both ways this year; the Court has used it to keep both new restrictions and challenged rules in place right before voting. Second, the absence of any noted dissent suggests that even justices who’ve been receptive to the administration’s election arguments weren’t willing to order a state to freeze tens of thousands of ballots on the eve of the election based on this record. The practical result is simple: California counts these ballots under its normal procedures, including its own safeguards for checking eligibility. If the administration believes specific people voted illegally, it can investigate and prosecute them afterward, subject to the constitutional questions about the federal statute we’ve discussed. But the votes won’t be frozen first. Trump administration takes California ballot fight to Supreme Court | Reuters · NBC News · CalMatters A federal judge in Washington has temporarily barred the Justice Department and the Department of Homeland Security from sending states lists of registered voters the administration says may not be citizens, and from asking states to set aside those voters’ ballots until citizenship is proven. The ruling is from U.S. District Judge Tanya Chutkan. The administration had sent letters to election officials in California and Washington State demanding they not count ballots from people on those lists. The plaintiffs argued the lists violated the Privacy Act of 1974, which limits how federal agencies use and share records about individuals, including the immigration and Social Security data used to build lists like these. The Justice Department argued the letters were just part of enforcing the federal ban on noncitizen voting, not a separate policy a court could review. The legal landscape is now genuinely tangled. A Ninth Circuit panel recently cleared the government to warn election officials they could face prosecution if they don’t comply with its demands. A federal judge in San Francisco ordered the department to stop threatening officials with prosecution. And another federal judge ruled that the administration’s threat to cut off Election Assistance Commission funds to states was unconstitutional pressure. Judge Chutkan isn’t bound by the Ninth Circuit, since her court is in a different circuit. When different courts reach different conclusions on overlapping issues, the conflicts often end up at the Supreme Court. For today, the effect is that federal agencies can’t keep sending these lists or pressing states to hold ballots. Two themes run through all of these cases. The first is federalism: states run elections, and the federal government’s tools for directing how they count ballots are limited. The second is data: lists built from government databases have repeatedly flagged real citizens, and privacy law sets limits on how that data can be shared and used. Judge blocks Trump administration from pressuring states over noncitizen voting | Reuters · Jerusalem Post · Yahoo News And finally, in my column for Bloomberg Tax this week, I look at a new report from the Treasury Inspector General for Tax Administration. It found that more than 38,000 tax preparers using noncompliant preparer identification numbers prepared over 2 million returns in the 2025 filing season. Within that group, nearly 12,000 preparers filed about 95,000 returns that all claimed refunds, totaling almost $600 million. The report treats a 100% refund rate as a sign of heightened risk of fraud or misconduct, and the IRS is building a data-driven program to target preparers. My question is simple: why should a preparer whose clients all get refunds be more suspicious than one whose clients owe? Refunds are normal. Wage earners often have more withheld than they owe, and refundable credits like the earned income tax credit can produce refunds for people with little or no tax liability. A preparer who serves lower-income working families could legitimately file nothing but refund returns. And fraud isn’t just about refunds. Someone who reports $500,000 in tax owed when they really owe $750,000 has shorted the government $250,000 without ever asking for a refund. If the IRS chases a $2,000 improper refund instead, it leaves far more revenue on the table and puts the burden on a taxpayer much less able to fight back. That matters, because enforcement choices aren’t neutral. The Stanford research finding that Black taxpayers were audited at 2.9 to 4.7 times the rate of others showed how a focus on refundable credits can produce deeply unequal results. Scale matters too: TIGTA’s numbers work out to an average of about eight refund returns per preparer, which makes a 100% refund rate a pretty weak signal. My proposals: compare preparers with others serving similar clients, account for volume, test whether a risk indicator actually predicts misconduct against independently verified cases, and check whether it puts disproportionate burdens on certain groups. The IRS owes taxpayers more than an assurance that a pattern looks unusual. It should be able to show that the pattern actually predicts misconduct. Tax Preparers Who Focus on Refunds Shouldn’t Raise Red Flags | Bloomberg Tax This is a public episode. If you'd like to discuss this with other subscribers or get access to bonus episodes, visit www.minimumcomp.com/subscribe

This Day in Legal History: Black Tuesday On October 29, 1929, the New York Stock Exchange suffered the worst day of the crash that had begun the previous Thursday. About 16 million shares changed hands, a record that stood for decades, and the Dow fell about 12 percent. Investors who had bought stock on margin, with borrowed money, were wiped out as their loans were called. The crash didn’t cause the Great Depression by itself, but it became its symbol. The legal response defined American financial regulation for the rest of the century. The Securities Act of 1933 required companies selling securities to the public to register and disclose financial information. The Securities Exchange Act of 1934 created the Securities and Exchange Commission and regulated trading and margin lending. The Banking Act of 1933, known as Glass-Steagall, separated commercial banking from investment banking and created the FDIC to insure deposits. The central idea, borrowed from Louis Brandeis in today’s opening quote, was disclosure: rather than having the government judge which investments were sound, the law would require companies to tell the truth and let investors decide. The significance of October 29, 1929 is that much of modern corporate and financial law, and much of the work of the big law firms that grew up to practice it, traces back to the response to the crash. Earlier this month we marked the 1987 crash. Today’s anniversary goes back to the original. And our first story is about one of the firms that built its reputation in the aftermath of a later financial collapse. Weil, Gotshal & Manges, one of the best-known names in corporate law, has told its partners it plans to wind down. Weil’s restructuring practice made it the go-to firm for some of the largest bankruptcies in history, including Lehman Brothers and Enron. Now the firm itself is dissolving after failing to stop a wave of partner departures and, according to Law.com, failing to find a merger partner in recent weeks. The firm says it will carry out an orderly wind-down and keep serving clients in the meantime. Reports say it brought in an outside bankruptcy lawyer to advise on the process. It isn’t yet clear what dissolution means for the firm’s lawyers and staff, numbering more than a thousand, or for its creditors. Law firm collapses are rare at this scale, but they follow a pattern. The most famous recent example is Dewey & LeBoeuf, which filed for bankruptcy in 2012. When partners start leaving, they take clients and revenue with them, which puts pressure on the remaining partners’ compensation and on the firm’s ability to cover its fixed costs, like leases and debt, which leads more partners to leave. Dissolution raises legal questions too. Under partnership law, a dissolving firm doesn’t end overnight; it winds up its affairs, collecting fees, paying creditors, and distributing what’s left. Courts have fought over the “unfinished business” doctrine, which asks whether profits from client matters that departing partners take to new firms belong to the old firm’s estate. And lawyers have professional duties that don’t pause for a wind-down. Clients have the right to choose their counsel, so they must be told promptly what’s happening and be able to decide where their matters go, with files transferred and deadlines protected. The lesson for the profession is how quickly a firm’s most valuable asset, its people, can walk out the door. Weil Gotshal law firm plans to dissolve, capping dizzying fall | Reuters · Law.com · The Lawyer The federal government has sued Google in Manhattan federal court on behalf of a former employee who is an Army reservist. Mark Davisson worked at Google as a key account executive, managing relationships with customer accounts. He took a year of military leave and returned in May 2023. The government alleges that Google kept his pay and title but no longer let him manage customer accounts, a change that could have limited his advancement. Google later moved him to a cloud solutions role that also didn’t involve managing accounts, and laid him off in August 2024 as part of a broader workforce reduction. Google hasn’t publicly responded in the reports so far. The suit is brought under USERRA, the Uniformed Services Employment and Reemployment Rights Act. It requires employers to reemploy service members returning from military duty, generally in the job they would have held if they hadn’t left, or one of equivalent seniority, status, and pay. This is known as the “escalator” principle: a service member returns to the step of the escalator they would have reached if they’d never left, not just to the same salary. That’s why the case turns on more than pay and title. If the core function of Davisson’s job, managing client accounts, was taken away, the government argues he wasn’t restored to an equivalent position, even though his paycheck didn’t change. USERRA also protects returning employees from being fired without cause for a period after they return, depending on the length of service, and prohibits discrimination and retaliation based on military service. Google will likely argue that the later layoff was part of a company-wide reduction unrelated to his service. When the Justice Department brings a USERRA case itself, it’s typically because the Labor Department investigated and referred it, and the government represents the service member at no cost. Given how many reservists and National Guard members work for large employers, the case is a reminder that the law asks employers to protect not just the paycheck but the career path. US sues Google for failing to restore a former employee to a similar job following military deployment | Reuters And finally, the White House press fight has entered a new phase. Since late September, U.S. District Judge Timothy Kelly has issued orders requiring the administration to restore White House access to journalists from CNN, MS NOW, and Politico, after the President banned the three outlets over what he called negative coverage. Earlier this month, the judge also ruled the White House can’t revoke the hard passes of dozens of the outlets’ reporters. Now the outlets have expanded their lawsuit, saying the White House is still keeping them out of the press pool, the small rotating group of reporters brought into the Oval Office for events or assigned to fly on Air Force One. The White House responded that “The Fake News has no place demanding a spot in the President’s Oval Office.” Separately, press freedom groups filed their own suit this week, arguing the ban violates the public’s First Amendment right to receive information about the government. Here’s why the pool is a harder question than the hard passes. Courts have long held that once the government opens a space to the press generally, it can’t exclude particular journalists based on viewpoint without due process. The White House briefing room and grounds fit that description. But the Oval Office and Air Force One are much more limited spaces, where the President has traditionally had more control over who’s present. Last year, in the Associated Press’s case over its exclusion from the pool, an appeals court allowed the White House to keep limiting the AP’s access to those spaces while the case continued, reasoning that they aren’t open to the press at large. The outlets here will argue that the reason for their exclusion, their coverage, is what makes it unconstitutional, wherever it happens. Viewpoint discrimination, they’ll say, is forbidden even where the government has wide discretion over access. How Judge Kelly draws that line will shape how much control any President has over which reporters see him up close. CNN, MS NOW, Politico expand lawsuit over White House access limits | Reuters · Washington Post · Deadline This is a public episode. If you'd like to discuss this with other subscribers or get access to bonus episodes, visit www.minimumcomp.com/subscribe

This is a public episode. If you'd like to discuss this with other subscribers or get access to bonus episodes, visit www.minimumcomp.com/subscribe

This Day in Legal History: Federalist No. 1 On October 27, 1787, New York’s Independent Journal published an essay signed “Publius,” titled “General Introduction.” It was the first of what became 85 essays, written by Alexander Hamilton, James Madison, and John Jay, urging New Yorkers to ratify the Constitution, which had been signed in Philadelphia just six weeks earlier. Hamilton wrote this first one. Hamilton framed ratification as a test, set out in today’s opening quote, of whether people could establish good government “from reflection and choice,” rather than by “accident and force.” He also warned readers about something he saw as a recurring danger in republics: those who use zeal for liberty as a cover for ambition. “Of those men who have overturned the liberties of republics,” he wrote, “the greatest number have begun their career by paying an obsequious court to the people; commencing demagogues, and ending tyrants.” The significance of October 27, 1787 is that The Federalist became the most influential explanation of how the Constitution was meant to work, and courts, including the Supreme Court, cite it to this day to interpret the separation of powers, the role of the courts, and the limits on federal power. Its central idea, that a well-designed government channels ambition through institutions so no one person can bend them to their will, runs through all three stories today, each of which tests whether the government’s power to prosecute, to remove officials, and to run elections is being used within those limits. The Ninth Circuit has denied the Justice Department’s emergency request to stop California from counting mail ballots associated with more than 20,000 registered voters the government says are likely noncitizens. We covered this fight last Tuesday, when the President threatened California election officials with prison over these same ballots. After a weekend emergency argument, the appeals court ruled Monday that the Justice Department hadn’t given the district court a fair chance to consider the case first, so it was premature for the appeals court to step in. A district court hearing is set for today. At Sunday’s argument, Judge Mark Bennett told the government’s lawyer that California appears to have the legal authority to run its own elections. Judge Patrick Bumatay, a Trump appointee, was more sympathetic to the administration. California says its safeguards against noncitizen voting are strong and that the government’s claims rest on suspect data. Here’s the legal picture. Appellate courts generally don’t decide issues the trial court hasn’t addressed first, and emergency relief is supposed to be exceptional. The Justice Department tried to skip a step, and the court said no. On the merits, states run their elections and determine eligibility, and federal law gives the federal government limited tools to intervene in how a state counts ballots, especially without a reliable showing that specific voters are ineligible. Recall that the federal SAVE system has wrongly flagged real citizens in the past. There’s also a striking statistic in the reporting: the Justice Department has sued 30 states and D.C. for refusing to hand over complete voter rolls, and so far it has lost 26 of those cases without winning one. With the election a week away, the clock is now the government’s biggest problem. Trump administration loses push to block California votes from alleged noncitizens | Reuters · NBC News · CBS News A federal judge in Manhattan has ruled that the Justice Department unlawfully fired Maurene Comey, a federal prosecutor and the daughter of former FBI Director James Comey. Maurene Comey had worked in the Southern District of New York for years, including on the Jeffrey Epstein and Ghislaine Maxwell prosecutions. She was fired abruptly in July 2025 without explanation. She sued, arguing she was fired because of who her father is and her perceived political beliefs. In a 55-page opinion, U.S. District Judge Jesse Furman agreed that the firing was unlawful, finding it violated the separation of powers, her Fifth Amendment due process rights, and federal law. He ordered her retroactively reinstated, with back pay through December 20, 2025, when he inferred she had taken another job, and ordered her personnel file changed to show she resigned rather than was fired. The Justice Department says it will appeal, calling the decision an obstruction of the President’s constitutional authority to fire people who exercise executive power on his behalf. Here’s the legal tension. Career federal prosecutors aren’t political appointees. Like most federal civil servants, they’re covered by the civil service laws, which protect them against removal for political reasons or for reasons unrelated to job performance, and which set out procedures before firing. The administration’s argument draws on the Supreme Court’s recent decisions expanding the President’s power to remove officials. But those cases have mostly involved heads of agencies and other high-level officers, not line employees. If the President’s removal power reaches every prosecutor in the Justice Department, the civil service protections that have existed since the 1880s would mean much less. That’s why the appeal will be closely watched. Trump administration’s firing of prosecutor Maurene Comey was unlawful, judge rules | Reuters · CBS News · Washington Post And finally, on the same day his daughter won her case, the Justice Department charged former FBI Director James Comey for a third time. The new charges, in Washington, accuse him of conspiracy and two counts of unauthorized transmission of national defense information. Prosecutors allege that in October 2016, while he was FBI director, Comey directed one or more people to disclose national defense information to a reporter. Comey’s lawyer, Patrick Fitzgerald, says Comey “steadfastly maintains his innocence.” Recall the history. A 2025 indictment in Virginia over his Senate testimony was dismissed after a judge found the interim U.S. attorney who obtained it had been invalidly appointed. He also faces a separate case in North Carolina over a social media post the government calls a threat. Two features of this new case stand out. First, it was brought by a criminal information, not an indictment. The Fifth Amendment generally requires a grand jury indictment for serious federal crimes unless the defendant waives it. Prosecutors can file an information, but a defendant who hasn’t waived indictment can’t be tried on it. Comey’s lawyers have already moved to dismiss on that ground. Second, timing. The information was reportedly filed under seal on October 5, and these charges carry a ten-year statute of limitations. The alleged disclosure happened in October 2016. So the filing came right at the edge of the deadline. That raises a contested legal question: whether filing an information, without a grand jury indictment or a waiver, is enough to stop the clock. Courts have disagreed. If it isn’t, the charges may be time-barred. Taken together, three separate prosecutions of the same former official, each launched with unusual procedures, will inevitably raise questions about whether the government is using its prosecutorial power for political ends, the very concern our legal-history segment raised. Ex-FBI Director Comey charged again by US Justice Department, NBC News reports | Reuters · Washington Post · Axios This is a public episode. If you'd like to discuss this with other subscribers or get access to bonus episodes, visit www.minimumcomp.com/subscribe

This Day in Legal History: The O.K. Corral On October 26, 1881, in Tombstone, in the Arizona Territory, City Marshal Virgil Earp, his brothers Wyatt and Morgan, and Doc Holliday confronted a group of cowboys, including Ike and Billy Clanton and Tom and Frank McLaury, near the O.K. Corral. The gunfight lasted about thirty seconds. Billy Clanton and both McLaurys were killed. Virgil, Morgan, and Holliday were wounded. The legend tends to end there, but the legal story is just as interesting. Days later, Ike Clanton filed murder charges against the Earps and Holliday. Wyatt and Doc were arrested and released on $10,000 bail. Justice of the Peace Wells Spicer then held a month-long preliminary hearing, with dueling witnesses: the county sheriff testified that the cowboys had tried to surrender, while other witnesses, including some considered neutral, testified that the cowboys had drawn first. On November 30, Spicer ruled there wasn’t enough evidence to send the case to trial. He found the lawmen acted within the law, though he criticized Virgil Earp’s judgment in deputizing his brothers and Holliday. The ruling didn’t end the feud. Within months, Virgil was ambushed and Morgan was killed. The significance of October 26, 1881 is that even the most mythologized act of frontier violence ended up before a judge, and what happened next turned on evidence, witnesses, and legal standards. The phrase in today’s opening quote, often attributed to Lincoln, captures the idea that in a democracy, disputes are settled by votes and by law rather than force. That idea is at the center of everything we cover today, as the courts take on an unusually large role in the run-up to the election. The Justice Department has sued Alaska election officials in federal court in Anchorage, asking a judge to block certification of the state’s U.S. Senate race if Republican Sen. Dan Sullivan loses. The President said he ordered the suit: “I’m the one that said, ‘do it.’” The theory is unusual. Another candidate on the ballot is also named Daniel Sullivan, Daniel J. Sullivan, and the department argues his candidacy could confuse voters and violates the National Voter Registration Act. It’s asking the court to bar certification if Sen. Sullivan doesn’t win and certain other conditions are met. The race between Sullivan and Democrat Mary Peltola is close. Legal experts describe the lawsuit as without precedent and facing an uphill battle. Here’s why. First, timing. Courts are generally very reluctant to change election rules close to an election, and this suit was filed 11 days before Election Day, months after the ballot was finalized. If there was a problem with the ballot, the time to raise it was before ballots were printed and mailed. Second, the statute. The National Voter Registration Act governs voter registration, things like registering at the DMV and keeping voter rolls accurate. It doesn’t regulate who can appear on a ballot or how candidates’ names are listed. That’s governed by state law. Third, the remedy. Asking a court to block certification only if one particular candidate loses is unusual, to put it mildly. Courts decide legal questions based on the claims, not on which side wins. And states, not the federal government, run and certify their elections, with Congress, here the Senate, having its own role in judging its members’ elections. Even Alaska’s other Republican senator, Lisa Murkowski, said the department “should never have filed this lawsuit,” and reports indicate the attorney general has acknowledged that blocking certification would be unlikely outside extreme circumstances. Trump administration sues to block Senate race certification in Alaska if Republican loses | Reuters · Alaska Public Media · Votebeat Last week, New Mexico state Judge Francis Mathew ordered Meta to pay $25 billion in the Cambridge Analytica case, and Reuters reports legal experts believe Meta has a strong chance of getting it reduced on appeal. Recall the background we’ve been tracking. In September, a Santa Fe jury found Meta violated New Mexico’s Unfair Practices Act more than 43 million times by misleading residents about how their Facebook data was handled. The statute allows up to $5,000 per violation, which put the theoretical maximum at about $219 billion. New Mexico asked for $35 to $40 billion; Meta asked the judge to cap it at $3.45 billion. The judge landed at $25 billion. Meta says it will appeal, that the ruling makes it nearly impossible to do business in New Mexico, and that the suit effectively imposes a “tax on speech.” Here’s why experts think the number is vulnerable. The Eighth Amendment’s Excessive Fines Clause applies to civil penalties paid to a government, and the Supreme Court held in Timbs v. Indiana that it applies to the states. A fine violates that clause if it is “grossly disproportional” to the offense. Courts also apply due-process limits to very large awards. And New Mexico’s appellate courts will review whether the judge properly exercised his discretion. Meta’s strongest arguments are likely to be the size of the penalty compared with any proven harm to individual residents, and the way the violation count was calculated: tens of millions of violations from a couple of dozen statements reaching the state’s population. New Mexico will respond that the deception reached its entire population, that the company is enormously profitable, and that a penalty has to be large enough to actually deter. Whatever the appeal brings, this case has already shown how state consumer-protection laws can create very large exposure for tech platforms. Meta has a strong chance of getting $25 billion New Mexico penalty slashed on appeal | Reuters · CNN · Source New Mexico And finally, with the midterms eight days away, Reuters has a useful look at how the Supreme Court’s decisions this year have reshaped the election, and it’s worth pulling the threads together, because we’ve covered many of them one at a time. In April, the Court further weakened Section 2 of the Voting Rights Act, making it harder for minority voters to challenge district maps as racially discriminatory, and several Republican-led Southern states then moved quickly to break up House districts with large Black populations. In June, the Court struck down federal limits on how much political parties can spend in coordination with their candidates. This month, it froze the challenge to the FCC’s guidance extending discounted ad rates to party committees, keeping it in place through the election. And last month, it allowed the administration’s SAVE voter-verification system to be used for the midterms. Other rulings went the other way. The Court refused to let the Postal Service impose new mail-ballot restrictions, with only Justices Thomas and Alito publicly dissenting, and it barred Missouri from using its new Republican-drawn congressional map. Law professor Ilya Somin’s assessment, quoted by Reuters, is that Republicans have gained a net benefit from the Court’s election rulings, while Justice Kagan has criticized the conservative majority for declining to rein in partisan gerrymandering. At the same time, polls suggest Democrats remain in a strong position. Two broader observations. First, many of these decisions came on the emergency docket, with short or no explanations, which leaves less guidance for future cases. Second, timing matters as much as substance. Some rulings changed the rules months ahead; others froze the status quo by putting off a decision until after the election. Either way, the Court has shaped this election in more ways than almost any other in recent memory. US Supreme Court rulings reshape midterm election battlefield | Reuters · SCOTUSblog · US News This is a public episode. If you'd like to discuss this with other subscribers or get access to bonus episodes, visit www.minimumcomp.com/subscribe

This Day in Legal History: Moritz v. Commissioner On October 22, 1970, the U.S. Tax Court denied a deduction claimed by Charles Moritz, a never-married man from Denver who worked as a book editor and paid a caregiver to look after his elderly mother so he could keep working. The tax code at the time allowed a deduction for those caregiving costs to women, widowers, divorced men, and men whose wives were incapacitated. A man who had never married didn’t qualify. Moritz, representing himself, argued that the rule was unfair. The Tax Court said the statute was clear and rejected his constitutional argument. The case came across the desk of Martin Ginsburg, a tax lawyer, who showed it to his wife, Ruth Bader Ginsburg, then a law professor at Rutgers. The Ginsburgs took the appeal together. In 1972, the Tenth Circuit ruled for Moritz, holding that denying the deduction based solely on sex violated equal protection. Their brief in Moritz became the template for Ruth Bader Ginsburg’s brief in Reed v. Reed, where the Supreme Court for the first time struck down a law for discriminating on the basis of sex. The significance of October 22, 1970 is that one of the most important lines of constitutional law in the twentieth century started with a small tax deduction and a self-represented taxpayer. As a tax professor, I’ll admit I love that. It’s a reminder that the tax code isn’t just about revenue; how it defines families, workers, and caregivers reflects and shapes who the law treats as equal. The administration has asked the Supreme Court to let it resume building border barriers across the Big Bend region of Texas. On October 2, U.S. District Judge Kathleen Cardone halted construction across the roughly 500-mile Big Bend project area, along with the use of legal waivers for the project, while a lawsuit by environmental groups, including the Center for Biological Diversity, moves forward. Here’s the legal background. A 1996 law lets the Secretary of Homeland Security waive environmental and other laws to speed construction of barriers in areas of high illegal entry. Past administrations have used those waivers to bypass dozens of laws, and courts have generally upheld them. The challengers here argue the waiver authority doesn’t fit Big Bend, a remote, rugged region that includes a national park and has relatively few crossings. Judge Cardone found that construction on this scale required clear authorization from Congress, an argument related to the major questions doctrine, which says courts expect Congress to speak clearly before agencies take actions of vast economic or political significance. Solicitor General D. John Sauer called the injunction “baseless” and argued that the government’s border security interests outweigh what he described as aesthetic, recreational, and cultural harms. The administration also says leaving a gap in Big Bend could funnel crossings into the region once the rest of the border is walled off, and it says it won’t build a large wall inside the national park itself. Notably, the government is asking the Court not only for emergency relief but to effectively overrule the district judge’s decision now, without waiting for the case to work its way up. That’s an aggressive use of the emergency docket. It’s also a reversal of the usual pattern in which the major questions doctrine is used against the government’s regulatory programs. Here, the challengers are invoking it against an executive construction project. Trump asks US Supreme Court to allow Big Bend border wall construction | Reuters · CBS News · Marfa Public Radio States are preparing to keep a close eye on the Justice Department’s election monitors. The department plans to send about 1,000 monitors to all 50 states on Election Day, roughly triple the number at the last midterm and the largest observation effort in its history. NPR reports the department has already notified counties including seven in Texas, King County in Washington, Miami-Dade in Florida, and Hennepin and Ramsey counties in Minnesota. Some states are responding by monitoring the monitors. In Minnesota’s August primary, about 40 state employees, working in pairs, followed Justice Department lawyers as they traveled through two counties. California has started a similar program. Several states have issued guidance to poll workers explaining the limits on federal observers’ authority. Here’s the legal framework. The Justice Department has sent election monitors for decades, mainly to enforce civil rights laws like the Voting Rights Act and the Americans with Disabilities Act by watching for discrimination or inaccessible polling places. But monitors generally have no special legal right to enter polling places unless a court has ordered federal observers under the Voting Rights Act or the state allows it. Otherwise, access is governed by state law, and some state laws let election officials keep them outside. Monitors don’t run elections and can’t direct poll workers or challenge voters. Two things are drawing concern this year. First, the department plans to use criminal prosecutors as monitors rather than civil lawyers and support staff, as in the past. Second, there’s the context: the federal SAVE checks, the threats against California officials we covered Tuesday, and the noncitizen-voting prosecutions. Critics worry that a large federal presence staffed by prosecutors could intimidate voters, and federal law prohibits voter intimidation by anyone, including government officials. The department says critics are fear-mongering, that monitors will focus on civil rights compliance as in past elections, and that they won’t check voters’ citizenship on Election Day. Monitoring the monitors: US states prepare for surge of Justice Dept election watchers | Reuters · NPR · US News And finally, a federal judge in San Jose heard arguments on Wednesday in one of the major copyright cases over AI training, brought by music publishers including Universal Music Publishing Group, Concord, and ABKCO against Anthropic. The publishers allege Anthropic copied song lyrics without permission to train its Claude models. Both sides asked U.S. District Judge Eumi Lee to rule in their favor without a trial. Anthropic argues that training is fair use, because the model analyzes huge amounts of material to develop general capabilities, which it says is a transformative purpose. The publishers argue that training an AI that can produce copyrighted lyrics on request isn’t transformative and harms the market for the original works, pointing to evidence about nearly 120,000 prompts used to generate synthetic lyrics. Judge Lee questioned the publishers’ theory that Claude’s ability to generate lyrics threatens the market for their songs, and Anthropic noted that UMG itself has called AI “overwhelmingly a net positive” for the music industry. The judge didn’t rule. The legal question turns on fair use’s four factors, especially two of them: whether the use is transformative, and whether it harms the market for the original. Courts have split on AI training. Last year, one federal judge found that training Claude on lawfully acquired books was fair use, while another court rejected fair use where a company copied material to build a competing product. A key point is the difference between how training works and what the output does. Training on lyrics may be transformative, but if the model regularly reproduces full lyrics when asked, that output can substitute for licensed lyrics sites. The publishers have also filed a second, larger suit alleging Anthropic trained on lyrics and sheet music found in pirated books. Anthropic, music labels make key arguments in AI training case | Reuters · Lawyer Monthly · Music Ally This is a public episode. If you'd like to discuss this with other subscribers or get access to bonus episodes, visit www.minimumcomp.com/subscribe

This Day in Legal History: Abrams v. United States On October 21, 1919, the Supreme Court heard argument in Abrams v. United States. Jacob Abrams and several other Russian immigrants had thrown leaflets from a Manhattan building criticizing American military intervention in Russia and calling for a general strike. They were convicted under the Sedition Act of 1918 and sentenced to as much as twenty years in prison. That November, the Court upheld their convictions, 7 to 2. The case is remembered for its dissent. Justice Oliver Wendell Holmes, joined by Justice Louis Brandeis, argued that the government may punish speech only when it presents a clear and imminent danger, not because it is unpopular or distasteful. He wrote that “the best test of truth is the power of the thought to get itself accepted in the competition of the market,” the line that gave us the phrase “the marketplace of ideas.” Earlier that same year, Holmes had written the Court’s opinion upholding a conviction in Schenck v. United States. In Abrams, he moved toward a much more protective view of speech. The significance of October 21, 1919 is that Holmes’s dissent became, over the following half century, the foundation of modern First Amendment law, culminating in Brandenburg v. Ohio in 1969. It’s also a reminder that the idea of a market, where outcomes come from competition rather than decree, has shaped how American law thinks about speech as much as commerce. And today’s column is about what happens when the law tries to dictate how a market’s plumbing must work. A federal judge in Mississippi has refused to let the Environmental Protection Agency end a lawsuit the NAACP brought against Elon Musk’s artificial-intelligence company, xAI. The NAACP and its Mississippi chapter allege that xAI and a subsidiary built and ran gas-fired turbines in Southaven, Mississippi, without the permits the Clean Air Act requires. Those turbines supply power to xAI’s Colossus 2 data center just across the state line in Memphis. Residents in the area, many in predominantly Black neighborhoods, have raised concerns about air pollution. The NAACP sued under the Clean Air Act’s citizen-suit provision, which lets private parties enforce the law when the government doesn’t. The Justice Department, on behalf of the EPA, moved to intervene and argued that the agency could dismiss the case because federal regulators have primary authority to enforce the statute. U.S. District Judge Debra Brown agreed the EPA could join the case but held it couldn’t end the case on its own. Here’s why that matters. Citizen suits exist precisely because Congress didn’t want enforcement of environmental laws to depend entirely on the government’s willingness to act. The statute gives the government a way to take the lead: it can preempt a citizen suit by diligently prosecuting its own enforcement action. But the court’s ruling means the government can’t simply step in and shut down a private suit while not enforcing the law itself. If the EPA could do that, the citizen-suit provision would offer little protection exactly when it’s most needed. The ruling doesn’t decide whether xAI violated the law. That’s still to come. But it ensures the community’s claims will be heard. It also follows a pattern we’ve seen this fall, from the grant-conditioning cases to the agency-dismantling cases: courts insisting that the government’s preferences don’t automatically override the procedures Congress put in place. US judge rejects Trump administration bid to block NAACP lawsuit against Musk’s xAI | Reuters · Earthjustice · Lawyer Monthly Now a sensitive story about how the federal judiciary polices itself. U.S. District Judge Ada Brown of the Northern District of Texas, in Dallas, has been temporarily removed from hearing cases after a judicial investigation found a “reasonable basis” to conclude she may have a mental condition interfering with her ability to do her job. That’s not a medical diagnosis, and Judge Brown has rejected the suggestion. The investigation pointed to concerns about her workload: she had recused herself from more than 40 cases since June, and a recent report identified 78 undecided motions on her docket. On September 29, the Fifth Circuit’s judicial council reassigned her existing cases and barred her from receiving new ones for three months or until further notice. It also ordered her to undergo an independent psychiatric evaluation. Judge Brown has said she won’t participate further in the proceedings, and the council is now urging her to reengage. Here’s the legal framework. Federal judges have life tenure under Article III and can be removed only by impeachment. That protects judicial independence, but it also means there’s no ordinary way to handle a judge who can’t do the job. The Judicial Conduct and Disability Act of 1980 provides a limited process: a circuit’s judicial council can investigate and take measures short of removal, like temporarily withholding new cases, requesting voluntary retirement, or referring the matter to the Judicial Conference, which can in turn refer it to the House for possible impeachment. Last month we covered a Michigan judge who voluntarily took leave for treatment after a drunk-driving conviction. That’s how the system works best, with the judge’s cooperation. When a judge declines to participate, the council’s tools are narrower and the outcome less certain. It’s worth remembering that behind the procedure is a person, and that mental health conditions are health conditions. The goal of the process is to protect the litigants who depend on a functioning court while treating the judge fairly. Texas federal judge with suspected mental condition urged to reengage with inquiry | Reuters · ABA Journal · WFAA And finally, in my column for Bloomberg Tax this week, I look at Illinois’ fight over credit card “swipe fees.” In 2024, Illinois passed the Interchange Fee Prohibition Act, which bars banks and card networks from collecting interchange fees on the sales tax and tip portions of a card transaction. The idea makes sense: a merchant collects sales tax for the state and tips for its workers and is just passing that money along, so why should it pay a percentage fee on those amounts? A federal court blocked the law on preemption grounds, and Illinois is appealing. But my column focuses on a more basic problem: whether the payment system can actually tell those amounts apart. Picture a $150 restaurant bill: $100 for food, $8 in sales tax, and a $42 tip for great service. The customer sees three lines on the receipt, but the payment system generally treats it as one $150 transaction, and the swipe fee is a percentage of that total. Illinois wants the fee calculated only on the $100. Some processors already record tips or taxes separately, but recording a number at the register isn’t the same as reliably transmitting it through the whole card network and using it to calculate fees. Mastercard told the court that complying could take years of development. The law’s backup, which lets merchants submit paperwork up to 180 days later for a refund, has its own problem: the paperwork goes to one bank while a different bank owes the refund. And there’s an incentive problem: once tips are fee-free, businesses have a reason to reclassify charges as “gratuities.” My argument is that lawmakers should ask three questions before regulating technology systems: Can existing technology implement the distinction? Will the incentives undermine the policy? And do the benefits justify the costs? There may be simpler options, like expanding Illinois’ existing discount for retailers that collect sales tax. If the state still wants this rule, it should first create a uniform, auditable reporting standard, test it in a pilot, and target audits at suspicious tip classifications. A law can declare that two things should be treated differently, but it only works if the systems involved can actually tell them apart. Il… This is a public episode. 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This Day in Legal History: The Saturday Night Massacre On the night of October 20, 1973, President Richard Nixon ordered Attorney General Elliot Richardson to fire Archibald Cox, the special prosecutor investigating Watergate. Cox had refused to accept a compromise that would have given him summaries of the White House tapes instead of the tapes themselves. Richardson had promised the Senate during his confirmation that Cox would be independent, and he resigned rather than fire him. Nixon then ordered Deputy Attorney General William Ruckelshaus to do it. Ruckelshaus also refused and resigned. Solicitor General Robert Bork, now acting attorney general, carried out the order. That night Cox issued the statement quoted at the top of today’s episode. The public reaction was immediate and enormous. Within days, Nixon agreed to turn over subpoenaed tapes, a new special prosecutor, Leon Jaworski, was appointed with stronger protections, and the House began impeachment inquiries. A federal court later found that Cox’s firing had violated the Justice Department’s own regulations. Less than a year later, Nixon resigned. The significance of October 20, 1973 is the principle that the Justice Department’s power to investigate and prosecute is not supposed to be wielded as the President’s personal instrument, and that the officials who hold that power have duties to the law that can require them to refuse. That principle is very much at issue in our first story today. The President has threatened California election officials with prison over how they handle mail ballots. Here’s the sequence. Days ago, the Justice Department gave California 48 hours to review a list of roughly 20,000 voters the administration says are probably noncitizens, or face legal action. Los Angeles County said it couldn’t comply because the administration hadn’t explained how the list was made. The Justice Department then sent a letter, signed by acting Deputy Attorney General Trent McCotter, warning county officials that if they count mail ballots from people on that list, they could be liable as “abettors” of a federal crime. The President posted the letter on social media and wrote that the officials “will all go to jail for a long period of time.” The Justice Department has also sued California to block the state from counting those ballots. California’s secretary of state said the administration’s efforts to access voter data and purge rolls “serve only to cause chaos and fuel public distrust in our elections.” There are several serious legal problems with the threat. First, the accuracy of the list. We covered last month how the federal SAVE database has wrongly flagged real citizens, including findings in one Texas county that 10 to 21 percent of those flagged were citizens. Election officials who reject ballots based on an unexplained list risk disenfranchising eligible voters, which can itself violate federal and state law. Second, aiding-and-abetting liability requires intent to help someone commit a crime. An official following state procedures for verifying and counting ballots isn’t acting with that intent. Third, federal law limits systematic voter-roll removals in the 90 days before a federal election, precisely to prevent last-minute purges. Fourth, recall that a federal judge in Miami ruled earlier this month that the federal law criminalizing noncitizen voting is unconstitutional, though that ruling binds only that case. And finally, there’s the question raised by today’s legal-history segment: when the President publicly promises prison for specific officials, it becomes harder to see a prosecution as an independent decision by the Justice Department rather than a political one. Trump threatens California officials with imprisonment over stance on mail ballots | Reuters · Newsweek · The Business Standard Mahmoud Khalil, the Palestinian activist and former Columbia University graduate student, has asked the Supreme Court to hear his case. Immigration authorities arrested Khalil, a lawful permanent resident, in March 2025 over his pro-Palestinian activism. A federal judge in New Jersey later ordered him released, finding he had a strong claim that he was being detained to punish his speech. This year, the Third Circuit reversed 2 to 1, holding that federal immigration law stripped the district court of jurisdiction to order his release, and that challenges like his must go through the immigration courts first, with review later in the court of appeals. Khalil’s petition argues that federal courts have always had the power to hear a claim that the executive is detaining someone unconstitutionally, and to order that person freed. That’s the writ of habeas corpus, which the Constitution says can’t be suspended except in cases of rebellion or invasion. His lawyers argue that if immigration law can route these claims away from district courts, then someone can be locked up for months for their speech with no judge able to stop it until long after the harm is done. The government argues Congress has the authority to channel immigration disputes through a specific review system, and a DHS spokesperson said the administration acted within its authority and encouraged Khalil to self-deport. A key point is that the federal appeals courts are divided on this question. Last month we covered the government’s own request for Supreme Court review in the case of Badar Khan Suri, the Georgetown scholar, where a different appeals court ruled the other way. A clear disagreement among the circuits on a question this important makes Supreme Court review much more likely. For now, the lower-court order barring Khalil’s re-detention stays in place while the Court decides whether to take the case. Palestinian activist Mahmoud Khalil asks US Supreme Court to hear case seeking to avoid re-arrest | Reuters · NY1 · Times of Israel And finally, the First Circuit has mostly refused to let the Department of Housing and Urban Development move forward with an overhaul of the Fair Housing Initiatives Program. That program funds local nonprofits that investigate and fight housing discrimination, including by sending “testers” to check whether landlords treat applicants differently based on race, disability, or family status. It has historically supported more than 100 organizations around the country. HUD’s plan would have taken about $46 million of the roughly $56 million Congress appropriated for fiscal 2025 and put it into just five grant awards. Fair housing groups sued, and U.S. District Judge Myong Joun blocked the plan, finding HUD hadn’t justified such a major change in how the money is distributed. On Monday, the First Circuit declined to pause most of that order while the appeal proceeds. It granted HUD narrow relief on one point, a requirement that the agency issue new fiscal 2025 funding notices under the old framework. This isn’t a final ruling on the merits. Legally, this fits the pattern we’ve seen in a series of grant cases this year. Under the Administrative Procedure Act, an agency that changes an established policy has to acknowledge the change, give a reasoned explanation, and account for the people who relied on the old policy. And when Congress appropriates money for a program with stated purposes, the agency can’t redirect it in ways that defeat those purposes. Interestingly, the same court went the other way last month, letting HUD reshape a much larger homelessness program on the ground that notice-and-comment rules didn’t apply. So these cases turn heavily on the specific statute and the specific record. For now, the fair housing groups that depend on this funding get to keep operating under the old framework while the appeal plays out. Trump administration cannot overhaul fair housing grant program, appeals court rules | Reuters · WRE News · The Hill This is a public episode. If you'd like to discuss this with other subscribers or get access to bonus episodes, visit www.minimumcomp.com/subscribe

This Day in Legal History: Black Monday On October 19, 1987, the Dow Jones Industrial Average fell about 508 points, or 22.6 percent, in a single day. It is still the largest one-day percentage drop in the index’s history. Markets around the world fell with it. Trading systems were overwhelmed, order books backed up, and for hours many investors had no way to know what prices they were actually getting. The legal and regulatory response shaped the markets we have today. A presidential task force known as the Brady Commission found that the stock market and the futures market, regulated by two different agencies, the SEC and the Commodity Futures Trading Commission, had acted as one market during the crash but were overseen as two. Computer-driven trading strategies in one had fed selling in the other. Among the reforms that followed were “circuit breakers,” coordinated trading halts that pause markets when prices fall too far too fast, along with closer coordination between the SEC and the CFTC. The significance of October 19, 1987 is the idea that market regulation has to match how markets actually work, and that fragmented oversight can fail when stress hits. The CFTC, which grew in importance after the crash, is in our second story today, which is about whether a regulator can simply change its mind about a case it already settled. A cybersecurity incident has halted the system that sends out notices for every federal bankruptcy court in the country. The federal judiciary disclosed the incident Thursday. It affects the Bankruptcy Noticing Center, which produces and mails or emails the official notices in bankruptcy cases, along with its website and the National Creditor Registration Service. The system is run for the judiciary by BAE Systems Inc., a U.S. subsidiary of the British defense contractor. BAE says the incident is isolated to that system and that it has taken immediate steps to address it. The Administrative Office of the U.S. Courts is coordinating with the affected courts. There’s no announced restoration date, and the reports so far don’t say what caused the incident or whether any data was accessed. Here’s why this matters more than it might sound. Bankruptcy runs on notice. When a debtor files, creditors must be told so they can file claims, object, and attend the meeting of creditors. The automatic stay that stops collection efforts, the deadlines to object to a discharge, and the bar dates for filing claims all depend on people receiving proper notice. Due process requires notice reasonably calculated to reach the people whose rights are affected; that’s the core holding of the Supreme Court’s 1950 decision in Mullane v. Central Hanover Bank. If notices aren’t going out, deadlines may need to be extended, and orders entered without proper notice could later be challenged. There’s also a privacy dimension. Bankruptcy filings contain sensitive personal and financial information, so if data was exposed, the harm could go beyond delay. This is the second time in recent weeks we’ve covered a cyber incident hitting the legal system, after the breaches at Quinn Emanuel and McDermott. Courts, like law firms, are attractive targets, and increasingly depend on outside contractors to keep critical systems running. US federal bankruptcy court operations disrupted by cybersecurity incident | Reuters · U.S. Courts · Law.com A federal judge in Manhattan has refused to undo a settlement that both sides now want to erase. In January 2025, the crypto exchange Gemini agreed to pay $5 million to settle a Commodity Futures Trading Commission lawsuit alleging it made misleading statements to the agency about a bitcoin futures product. In May of this year, after an internal review, the CFTC concluded the case should never have been brought, and the agency and Gemini jointly asked the court to vacate the settlement. U.S. District Judge Alvin Hellerstein said no. He held that the CFTC’s change of position wasn’t enough to undo a final judgment, and he rejected Gemini’s argument that regulators had pressured it into settling, noting that Gemini fought the case for more than three years before agreeing to it. So the penalty stays paid, and the permanent injunction barring Gemini from making false or misleading statements to the CFTC remains in place. Here’s the legal principle. A court-approved settlement becomes a judgment of the court, and the federal rules allow a judgment to be reopened only for specific reasons, like fraud, mistake, newly discovered evidence, or significantly changed circumstances, and courts apply those exceptions narrowly. The reason is finality. If a judgment could be wiped out whenever an agency’s leadership or priorities change, no settlement with the government would be reliable, and every new administration could revisit its predecessor’s cases. That’s the idea behind the Latin maxim in today’s opening quote: there must be an end to litigation. It’s also notable that a court is effectively protecting a judgment that neither party wants. The judge’s view is that once the court enters a judgment, it belongs to the court, not to the parties. With regulators changing direction on crypto enforcement, this ruling suggests that changing course on future cases is one thing, but undoing past judgments is another. Judge rejects CFTC, Gemini bid to vacate $5 million settlement | Reuters · CoinDesk · CoinMarketCap And finally, the Ninth Circuit has thrown out class certification in a lawsuit by California Tesla buyers who say the company misled them about its self-driving technology. The plaintiffs allege that Tesla falsely advertised that its cars had the hardware needed for full self-driving capability. U.S. District Judge Rita Lin had certified three classes of California buyers. A three-judge Ninth Circuit panel reversed, holding that there were too many individualized questions about what each buyer actually saw before buying. The case is LoSavio v. Tesla. Here’s the legal issue. To proceed as a class action, plaintiffs have to show that common questions predominate over individual ones. In a false-advertising case, that often comes down to exposure and reliance: did class members see the same misleading statement, and did it affect their decision to buy? If the advertising was uniform and widespread, a court may find that common questions predominate. If buyers encountered different statements in different places, or some saw none at all, the court may conclude it would need a mini-trial for each person, which defeats the purpose of a class. The panel found the second situation here. The plaintiffs’ lawyers argued the court didn’t appreciate how central the hardware claim was to Tesla’s entire marketing campaign. A few things to keep in mind. This doesn’t decide whether Tesla’s statements were false. The case goes back to Judge Lin, and individual buyers can still pursue their claims. The decision is also unpublished, so it isn’t binding precedent in other cases. But practically, class certification often decides whether a consumer case is worth bringing. Few buyers can afford to sue individually over the cost of a software package, so losing the class can end most of the case. US appeals court blocks class actions over Tesla’s self-driving claims | Reuters · Bloomberg Law · US News This is a public episode. If you'd like to discuss this with other subscribers or get access to bonus episodes, visit www.minimumcomp.com/subscribe

This Day in Legal History: The Clayton Antitrust Act On October 15, 1914, President Woodrow Wilson signed the Clayton Antitrust Act. The Sherman Act of 1890 had banned contracts in restraint of trade and monopolization, but in broad language that left courts to decide case by case what was illegal. Clayton filled in specifics. It prohibited price discrimination that would substantially lessen competition, exclusive-dealing and tying arrangements with the same effect, interlocking boards of directors among competitors, and mergers whose effect “may be substantially to lessen competition.” That last provision, Section 7, is still the main federal merger law today. The Federal Trade Commission was created the same year to help enforce it. Clayton also took on a problem the Sherman Act had created for workers. Courts had used the Sherman Act against labor unions, treating strikes and boycotts as illegal combinations in restraint of trade. Clayton declared that “the labor of a human being is not a commodity or article of commerce,” the line in today’s opening quote, and tried to shield ordinary union activity from antitrust suits and injunctions. Courts read those protections narrowly for years, and it took later laws, like the Norris-LaGuardia Act of 1932, to make them work. The significance of October 15, 1914 is that it established a lasting principle of American regulation: that some sellers can’t charge different prices to different customers when it distorts competition. Our first story today is about a very different pricing rule, one that requires broadcasters to give political candidates their lowest ad rates, and about who else gets to claim that discount. The Supreme Court has sided with Republicans for the second time in a fight over discounted TV ad rates. Federal law requires broadcasters to sell political candidates airtime at the “lowest unit charge,” the same discounted rate a station gives its best commercial advertisers, in the weeks before an election. In March, the Federal Communications Commission, which has a 2-to-1 Republican majority, changed its guidance to extend that discount to party committees, not just candidates. Republican committees, which have a cash advantage this cycle, stand to benefit most. Democrats challenged the change. The Fourth Circuit had ordered the FCC to rule on the Democratic challenge before the November 3 election, which would have let the courts decide the question quickly. In an unsigned order Wednesday, the Supreme Court paused that deadline, accepting the FCC’s argument that it would suffer “irreparable harm” otherwise. Justices Sotomayor and Jackson would have denied the request. In September, the Court had already ruled the challenge was premature. The practical effect is that the dispute is frozen until after the election, and in the meantime the FCC’s guidance stays in place. One complication: according to NBC News, some broadcasters have already been declining to give committees the discounted rate, because they’re unsure the guidance is lawful. So committees may not actually get the discount everywhere, but they also won’t get a ruling to settle it before voters go to the polls. This fits a broader pattern of Supreme Court decisions this year expanding what political parties can do. In June, the Court’s conservative majority struck down longstanding limits on how much parties can coordinate spending with their candidates. Discounted airtime for party committees makes that coordinated spending go further. As with the voting cases we’ve covered all fall, the timing of a court’s decision can matter as much as what it decides. US Supreme Court again backs Republicans in clash over political ad rates | Reuters · Roll Call · NBC News A federal judge in Baltimore has declined to block the President’s executive order targeting diversity programs at federal contractors. The order, issued in March, requires contractors to disavow “racially discriminatory DEI activities” and certify in writing that they comply. Contractors that don’t comply can lose contracts and be investigated under the False Claims Act, which brings the risk of triple damages. Groups representing university faculty and minority business owners sued, arguing that the order effectively treats all diversity efforts as illegal discrimination and chills protected speech. U.S. District Judge Adam Abelson disagreed with that reading. He held that the order “only prohibits contractors from engaging in conduct that is already prohibited by federal law,” namely intentional discrimination on the basis of race or ethnicity, and so the challengers hadn’t shown it was too broad. Here’s what’s interesting about the ruling: both sides can find something to like in it. The administration keeps its order in place. But the plaintiffs’ lawyers at Democracy Forward pointed out that the judge’s reasoning makes clear the order doesn’t broadly prohibit diversity programs. If the order only forbids what Title VII and other civil rights laws already forbid, then programs that don’t involve intentional race discrimination, such as recruiting at a wider range of schools, mentoring open to everyone, or training, aren’t covered. That narrow reading may limit how aggressively the government can use the certification requirement and the False Claims Act against contractors. Narrowing a law to save it is a common judicial move. Courts often adopt the reading that avoids constitutional problems. This was also only a denial of a preliminary injunction, so the case continues, and a separate challenge by 19 states and D.C. is pending in the same court. US judge won’t block Trump order targeting DEI by federal contractors | Reuters · Law360 · GV Wire And finally, eight states have sued OpenAI, alleging that ChatGPT harms children and misleads parents about its safety. Iowa, Kansas, Nebraska, West Virginia, Arkansas, Arizona, Idaho, and Montana each filed separately in their own state courts. The complaints allege that ChatGPT is designed to be overly agreeable and to imitate human compassion, and that this has led it to coach young users toward self-harm, suicide, or violence. Iowa’s attorney general said the chatbot gives dangerous medical advice. West Virginia’s said it lacks adequate safeguards for conversations about suicide, school shootings, and self-harm. The claims rest mainly on state consumer-protection laws, alleging deceptive marketing and harmful design, and the states are seeking changes to how ChatGPT operates, along with penalties and the return of profits made from young users. OpenAI points to its age-based protections and a dedicated teen version of ChatGPT, and says it continues to improve its safety features. Two things are worth noting. First, the strategy. Filing separately in eight state courts, under eight state laws, means OpenAI has to defend on many fronts at once, and it makes it harder to move everything into one federal courtroom. It’s the same approach states have used against social media companies, which led to the Alabama TikTok settlement and the New Mexico verdict against Meta we’ve covered recently. Second, this joins Florida’s case against OpenAI, filed in June, in which Florida has since asked the court to stop the company from developing new models without outside oversight. These suits will also test an open legal question: whether the output of an AI chatbot is treated more like a product, which can be defectively designed, or more like speech, which gets First Amendment protection. How courts answer that will shape AI liability for years. Eight US states sue OpenAI claiming ChatGPT harms children | Reuters · CNBC · Seeking Alpha This is a public episode. If you'd like to discuss this with other subscribers or get access to bonus episodes, visit www.minimumcomp.com/subscribe

This Day in Legal History: The Death of the Great Dissenter On October 14, 1911, Justice John Marshall Harlan died after nearly 34 years on the Supreme Court. Harlan was an unlikely civil rights hero. He was a Kentuckian from a slaveholding family who had opposed the Thirteenth Amendment before the war’s aftermath changed his views. On the Court, he became known as the “Great Dissenter” for standing alone, again and again, against the majority’s narrowing of the Reconstruction Amendments. His most famous dissent came in Plessy v. Ferguson in 1896, when the Court upheld Louisiana’s law segregating railroad cars under the doctrine of “separate but equal.” Harlan was the only justice to disagree. He wrote that the Constitution is “color-blind” and “neither knows nor tolerates classes among citizens,” and he predicted the decision would prove as harmful as Dred Scott. Thirteen years earlier, in the Civil Rights Cases, he had also dissented alone when the Court struck down the federal ban on racial discrimination in public accommodations. The significance of October 14, 1911 is what happened to Harlan’s dissents after his death. Brown v. Board of Education rejected Plessy in 1954, and Congress revived the public-accommodations protections in the Civil Rights Act of 1964. Dissents don’t decide the case in front of the court, but they can shape the law that comes after. That’s worth keeping in mind for our second story, where a 2-1 appellate decision with a dissent is now headed toward review by the full court. A federal jury in Delaware found that chip-design company Arm breached its license agreement with Qualcomm and intentionally interfered with Qualcomm’s business relationship with Meta. Then it awarded Qualcomm nominal damages of $2. Both companies are claiming victory. Qualcomm says the jury found Arm failed to honor its commitments and acted to disrupt its business. Arm says the jury ruled for it on four separate claims and awarded only a dollar on each of the two claims Qualcomm won, which it says shows Arm acted in good faith. Some background: Arm licenses the instruction-set architecture that most of the world’s smartphone chips are built on. Qualcomm holds an architectural license, which lets it design its own custom processors around Arm’s architecture. These companies have been fighting for years. In the first trial, two years ago, a jury rejected Arm’s claim that Qualcomm breached its license after acquiring the chip startup Nuvia. This second trial was Qualcomm’s case against Arm. The legal point worth explaining is nominal damages. In contract law, proving a breach doesn’t automatically get you money. You also have to prove that the breach caused you a measurable loss, and how big that loss was. When a jury finds that a breach happened but the plaintiff didn’t prove actual damages, it can award a token amount, often a dollar, to recognize that the plaintiff’s rights were violated. So a $2 verdict tells you the jury believed Arm did something wrong but wasn’t persuaded Qualcomm proved it lost money as a result. A finding of liability can still matter: it may support other relief like an injunction, affect leverage in licensing negotiations, and help in future disputes between the same parties. But as a matter of damages, Qualcomm won the argument and lost the payout. The markets agreed it was close to a draw: Arm shares slipped about one percent, and Qualcomm’s rose about the same. Qualcomm says jury found Arm breached license agreement | Reuters · CNBC · Yahoo Finance The AI company Anthropic has asked the full D.C. Circuit to rehear its challenge to the Pentagon’s decision to label it a “supply chain risk.” That designation bars the Defense Department and its contractors from using Anthropic’s Claude models for Pentagon work. The fight began in February, when the President ordered federal agencies to stop using Anthropic’s technology, and the Defense Secretary made the formal designation in March. Anthropic has said the blacklisting has cost it billions of dollars in lost business. In September, a three-judge D.C. Circuit panel upheld the designation, 2 to 1. The majority said the Pentagon acted reasonably after Anthropic refused to allow its AI to be used for autonomous weapons or mass surveillance, and it rejected Anthropic’s claim that the designation was retaliation for the company’s public views on AI safety. Anthropic is now asking for rehearing en banc, meaning by all the active judges on the court rather than the three-judge panel. Its argument is that the panel turned a law aimed at hostile foreign actors into one that “presumptively reaches every government contractor,” and that the Pentagon acted with no process before the designation despite strong evidence of retaliation for speech. There are two important questions here. One is statutory: how broadly the government’s supply-chain-risk authority reaches, and whether a domestic company can be cut off on the same terms as a foreign adversary’s suppliers. The other is constitutional: the government generally can’t punish a contractor for its speech, but it has a lot of discretion to choose what products it buys, especially for national defense. Notably, in a separate case in August, a federal judge in California struck down a parallel designation under a different statute, calling the Pentagon’s campaign unlawful retaliation. So two courts have reached different results on closely related facts. Full-court rehearing is rarely granted, and it’s usually reserved for questions of exceptional importance or conflicts in the law. Anthropic is arguing this qualifies on both counts. If the full court declines, the next stop could be the Supreme Court. Anthropic seeks rehearing of case over Pentagon’s security risk branding | Reuters · The Next Web · BusinessWorld And finally, CVS has agreed to pay $315 million to settle Justice Department claims over opioid prescriptions. The government alleged that from 2013 through 2025, CVS pharmacies filled prescriptions for opioids and other controlled substances that had no legitimate medical purpose, then billed Medicare and other federal health programs for many of them. The warning signs cited include unusually large quantities, early refills, and so-called “trinity” prescriptions, a combination of an opioid, a benzodiazepine, and a muscle relaxant that’s widely recognized as a sign of abuse and a serious overdose risk. CVS disagrees with the allegations and isn’t admitting wrongdoing, and it says its pharmacists are highly trained. Two federal laws are doing the work here. The first is the Controlled Substances Act, which gives pharmacists their own legal responsibility, separate from the prescribing doctor, not to fill a prescription they know or should know isn’t legitimate. Pharmacists aren’t just order-takers. The second is the False Claims Act, which makes it unlawful to bill the government for services that don’t meet legal requirements, and which allows triple damages and penalties. This case also shows how the False Claims Act’s whistleblower provision works. It started in 2019 with a lawsuit filed by a former CVS employee, Hillary Estright, on the government’s behalf. The Justice Department joined and filed its own complaint in 2024. Whistleblowers in these cases can receive a share of the recovery, typically between 15 and 30 percent, which is why so many large fraud settlements begin with an insider. For perspective, the Justice Department settled a similar case against Walmart in August for $50 million, and CVS agreed in 2022 to pay nearly $5 billion to settle opioid claims by states, cities, and tribes. Taken together, these settlements show the government holding pharmacies, not just manufacturers and distributors, responsible for their role in the opioid crisis. CVS to pay $315 million to settle unlawful opioid prescription claims, Justice Department says | Reuters · NBC News · Becker’s Hospital Review This is a public episode. If you'd like to discuss this with other subscribers or get access to bonus episodes, visit www.minimumcomp.com/subscribe

This Day in Legal History: In re Turner On October 13, 1867, Chief Justice Salmon P. Chase, sitting as a circuit judge in Baltimore, decided In re Turner. Maryland had abolished slavery in its 1864 constitution, but former enslavers quickly found a workaround: a state apprenticeship law that let courts bind Black children to white employers, often their former masters, without their parents’ consent. White children could not be bound under the same terms. Elizabeth Turner was one of those children, and with help from the Freedmen’s Bureau, her case came before Chase on a petition for habeas corpus. Chase ordered her released. He held that the arrangement was involuntary servitude prohibited by the Thirteenth Amendment, and that the law’s racial distinctions violated the Civil Rights Act of 1866, which guaranteed all citizens the equal benefit of the laws. In a now famous line, he declared that Black Americans were citizens of the United States on the same footing as white Americans. Within a year, the vast majority of Black child apprentices in Maryland had been released, although some state courts kept applying the voided law for several more years. The significance of October 13, 1867 is the idea that citizenship is not something the government can treat differently depending on who you are, and that federal courts will step in when a state uses ordinary-looking legal machinery to undo constitutional rights. Questions about citizenship, and about how the government treats people it views as political adversaries, are at the center of our first story today. Federal agents searched Rep. Ilhan Omar’s home in Washington early Monday. Homeland Security Investigations, the criminal investigations arm of Immigration and Customs Enforcement, executed a court-authorized search warrant obtained by the Justice Department, which said the search was part of an ongoing criminal investigation. According to sources cited in the reporting, the investigation concerns immigration paperwork filled out by Omar’s late father when she was a child, after the family came to the United States from Somalia. Omar is a naturalized U.S. citizen. This was not a deportation action. Her office called the search “an outrageous abuse of power” and an escalation in the “weaponization of federal law enforcement to target political enemies,” and said she has done nothing wrong. House Democratic leaders called it “deeply disturbing.” The President said he had nothing to do with it, but that officials were looking “very carefully” at Omar. A few legal points. First, a search warrant means a federal judge found probable cause to believe evidence of a crime would be found at the location. That’s a real threshold, but it’s a low one, and it isn’t a finding that anyone is guilty. No charges have been reported. Second, if the investigation centers on paperwork prepared by her father when she was a child, there are serious questions about intent and about the statute of limitations for decades-old filings. The Supreme Court held in Maslenjak v. United States in 2017 that the government can’t strip someone’s citizenship over a false statement in the naturalization process unless the falsehood actually mattered to the decision to grant citizenship. Third, the timing is unusual. Justice Department policy has long discouraged overt investigative steps against a candidate close to an election, to avoid influencing the outcome. Taking this step against a sitting member of Congress less than a month before voting will draw scrutiny regardless of what the evidence shows. US launches immigration raid on Democratic Congresswoman Ilhan Omar’s home, Fox News reports | Reuters · CBS News · Axios A federal judge in Washington sharply rebuked Justice Department lawyers after crews cut down hundreds of trees at East Potomac Golf Links, a century-old public golf course on federal land managed by the National Park Service. The President announced plans last year to overhaul the course, and the Interior Department says the work will restore its historic character and open up views of nearby monuments. The DC Preservation League sued in February, arguing the project violates environmental and preservation laws. Back in May, U.S. District Judge Ana Reyes had required the government to give advance notice of any substantive construction work. Then, over a weekend, crews felled roughly 430 to 500 trees, depending on the report, without notifying the preservation group. At a hearing Monday, the judge said she was “furious” and called the removal “inexcusable.” She asked the government’s lawyers, “On what universe did anyone in your office think this was acceptable?” She said the failure to give notice had “cost the government all of its credibility” in the case. She temporarily halted all tree cutting, including routine maintenance, and said she wants sworn testimony from an Interior Department deputy chief of staff and from the superintendent of the National Mall about what happened. She noted that the only reason she hadn’t started contempt proceedings was that her notice requirement hadn’t been put in a written order. This may sound like a small story compared to others we cover, but it raises something important. Notice requirements exist because some actions can’t be undone. You can’t un-cut a hundred-year-old tree. When the government acts first in a way that makes a court’s eventual ruling meaningless, it undermines the court’s ability to provide any remedy at all. And the judge’s comment about credibility matters, because courts often rely on the government’s representations, and that trust is hard to rebuild once lost. Judge blasts Trump’s DOJ over ‘inexcusable’ tree removal at DC golf course | Reuters · CBS News · WJLA And finally, in my column for Bloomberg Tax this week, I look ahead about 17 years, to the day the first Trump Accounts pass into the hands of the young adults they were created for. Trump Accounts work like baby bonds. Eligible U.S.-citizen children born from 2025 through 2028 get a one-time $1,000 federal deposit, families and others can contribute, and taxes on investment growth are generally deferred until withdrawal. Using current birth rates, that’s roughly 14.4 million children and $14.4 billion in seed money, before any investment growth or contributions. My concern is that we’re building a very large target for fraud with an unusual weakness. Many accounts will be set up or claimed by parents almost two decades before the child takes control, and some will be created automatically by the Treasury and sit unclaimed for years. By the time the 2025 group turns 18 around 2043, contact information will be out of date, logins will be long forgotten, and the personal information used to verify identity will have leaked in years of data breaches. And AI-generated fake IDs are already fooling some financial institutions. We’ve seen this before. In 2015, criminals used taxpayer information stolen from elsewhere to pass the IRS’s identity checks for its Get Transcript tool. They didn’t need to hack the IRS to beat it. So I argue the Treasury should plan the handoff now: fresh identity verification that means more than asking the same old questions again, extra security for dormant and never-claimed accounts, protections against last-minute changes to contact or withdrawal information, and a human-reviewed path for beneficiaries who’ve lost access to their original credentials. And Congress should guarantee a right to restoration of unauthorized withdrawals, placing the loss on the institution that approved the transfer, not on the young person whose savings disappeared, with deadlines and appeals so institutions can’t simply deny hard claims. The test of this program won’t be how many accounts get opened. It’ll be whether the people they were opened for can actually get their money without losing it to an impostor. Trump Accounts’ Fraud Vulnerability Calls for Strong Safeguards | Bloomberg Tax This is a public episode. 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This Day in Legal History: The Alex Jones Verdict On October 12, 2022, a jury in Waterbury, Connecticut, ordered Alex Jones and his company to pay about $965 million to the families of victims of the 2012 Sandy Hook Elementary School shooting and to an FBI agent who responded that day. For years, Jones had told his audience the massacre, in which 20 children and six educators were killed, was a hoax staged by “crisis actors.” His followers harassed and threatened grieving parents, some of whom had to move repeatedly to escape them. The judge later added hundreds of millions more in punitive damages and fees. Jones had already lost the case on liability. The court entered a default judgment against him because he repeatedly failed to turn over evidence, so the jury’s job was to decide damages. The verdict, together with an earlier Texas award, became one of the largest defamation judgments in American history, and Jones’s media company later went through bankruptcy. The significance of October 12, 2022 is a reminder of where the First Amendment’s protection ends. American law protects an enormous range of speech, including harsh, offensive, and mistaken speech about public matters. It does not protect knowingly false statements of fact that destroy private people’s reputations. That boundary, between what the government and the courts can’t touch and what they can, is at the center of our first story today, about whether the government can use antitrust law to second-guess how news organizations decided to cover the President. The Justice Department is investigating whether five TV networks, ABC, CBS, CNN, NBC, and Fox News, violated antitrust law when they briefly stopped providing shared “pool” coverage of the President. The New York Times first reported the investigation. Here’s the background. On September 19, the White House barred reporters from CNN, MS NOW, and Politico over their coverage, a ban we’ve followed closely. In response, the networks that rotate responsibility for the White House TV pool, the shared camera crew whose footage all outlets can use, suspended pool coverage for several days. They resumed after a federal judge temporarily blocked the ban. Now the Antitrust Division has demanded the networks’ communications about the pool. A Justice Department spokesperson said the networks “proudly boycotted” covering White House events and that group boycotts by commercial competitors can violate the Sherman Act. Here’s the legal problem with that theory. It’s true that competitors agreeing not to deal with someone can be an antitrust violation. But the Supreme Court has drawn a line between economic boycotts and boycotts that are a form of expression. In NAACP v. Claiborne Hardware in 1982, the Court held that a boycott aimed at political and social goals is protected by the First Amendment. The networks’ decision about whether and how to cover an event is an editorial judgment, which is about as protected as speech gets. And the pool exists because the White House limits access; it’s a cooperative arrangement for gathering news, not a scheme to fix prices or divide markets. One leading First Amendment group called the investigation “nonsensical.” There’s also the context: the Justice Department is defending the press ban in court, and Trump ally Laura Loomer publicly urged an antitrust challenge two weeks ago. Coming alongside subpoenas to Times reporters and the seizure of a Washington Post reporter’s laptop, critics see this as using enforcement power to pressure the press. The investigation is at an early stage, and no charges have been brought. Justice Department probes TV networks over Trump pool coverage, New York Times reports | Reuters · CBS News · CNN Federal Reserve Governor Lisa Cook’s lawyers say a White House hearing on whether she can be removed will show she committed no mortgage fraud, if the hearing is anything close to objective. The President first tried to fire Cook in August 2025, claiming she made misrepresentations on mortgage documents before she joined the Fed. She has denied wrongdoing, arguing the apparent discrepancies were either accurate at the time or inadvertent, and that she disclosed the relevant facts to her lenders. In June, the Supreme Court ruled she could keep serving while her challenge proceeds, without deciding whether the allegations are true. Now the President has created a three-person “committee of inquiry” to hold a hearing at the White House on November 5. Cook can submit a written statement beforehand, the committee can question her or let Justice Department lawyers do so, and it will then report to the President whether there’s legal cause to remove her. Here’s why the process matters. The Federal Reserve Act says governors can be removed only “for cause.” That protection is what keeps monetary policy insulated from day-to-day political pressure, and courts have generally read “for cause” to require some kind of notice and opportunity to respond. The White House hearing looks like an effort to supply that process and build a record that can survive in court. Cook’s lawyers, Abbe Lowell and Norm Eisen, say they have “grave doubts” the hearing is legitimate, because the President has repeatedly said he’s already decided to fire her, and they argue the real reason is her refusal to support lower interest rates. A hearing where the decision-maker has announced the outcome in advance is vulnerable to a due-process challenge. Still, her lawyers say they’re engaging with the process to test whether it can be fair. Whatever the committee reports, this is likely headed back to court, and it will test how much independence the Fed’s “for cause” protection really provides. Fed’s Cook lawyers say hearing will show no mortgage fraud case | Reuters · CNBC · CBS News And finally, another chapter in the story of AI in the courtroom, this time from a different angle. A federal judge in Arizona, U.S. District Judge Krissa Lanham, dismissed a lawsuit a worker filed against the Department of Agriculture alleging retaliation and a hostile work environment. The plaintiff, Shelly George, was representing herself. Judge Lanham wrote that the 67-page complaint appeared to be generated by AI, because it resembled other AI-generated complaints the court had seen. She also found it was a “shotgun pleading”: it repeated claims, made unclear arguments, and didn’t connect the facts to the legal claims. She barred the plaintiff from using AI to draft a new complaint and required disclosure of certain AI use in future filings. A few observations. First, most of the AI cases we’ve covered involved lawyers citing cases that don’t exist. This one is different: the problem wasn’t fabricated law, it was a complaint that didn’t do its basic job. A complaint has to give the defendant fair notice of what it’s being sued for and why, and the federal rules require a “short and plain statement” of the claim. Long, repetitive pleadings that don’t connect facts to claims have been dismissed for decades, AI or no AI. Second, it’s worth noting the court’s AI finding rests on the judge’s observation that the document resembled others, not on an admission or a detection tool. Third, this is a hard issue for people without lawyers. Courts are generally more lenient with self-represented litigants, and AI tools can genuinely help people who can’t afford counsel organize their thoughts and find the right forms. But they can also produce long, confident documents that look like legal pleadings without meeting the legal standards. The likely result is more courts adopting AI disclosure rules, which may protect the courts but also add another procedural hurdle for people already navigating the system alone. Judge dismisses US agency worker’s lawsuit, citing AI hallmarks | Reuters · JD Journal This is a public episode. If you'd like to discuss this with other subscribers or get access to bonus episodes, visit www.minimumcomp.com/subscribe