Government officials in five Republican administrations oppose Trump immunity claim

U.S. v. Donald J. Trump, D.D.C.

Table of contents in the CADC

ARGUMENT ...........................................................................................10 

I. The Defendant Has No Immunity from Federal Criminal Prosecution. ...........................................................11 

A. Separation-of-powers analysis provides no support for immunizing a former President from federal criminal prosecution. ...................................................12 

B. Constitutional text, historical practice, and other immunity doctrines do not support the defendant’s contrary claim. .............................................................29 

C. Even if separation-of-powers principles limited the federal prosecution of a former President in some USCA Case #23-3228 Document #2033810 Filed: 12/30/2023 Page 3 of 82 iii unusual circumstances, those principles would not require dismissal here..................................................45 

D. Even if a former President were entitled to immunity from criminal prosecution comparable to his immunity from civil liability, dismissal is not warranted here.............................................................49 

II. The Defendant’s Acquittal at an Impeachment Trial Does Not Bar This Prosecution. 

An unusual group of amici - officials from five Republican administrations - has filed a friend of the court brief in the Court of Appeals for the District of Columbia Circuit   opposing Donald Trump's claims of immunity from prosecution.  The court will hear the issue on January 9. That expedited schedule is likely at least part of the reason the Supreme Court denied Jack sith's motion to grant certiorari before judgment.

- GWC

 

Trump claims immunity from prosecution in D.C. Circuit brief

Trump claims immunity in D.C. Circuit brief

 

Jack Smith moves to tame Trump rants in January 6 prosecution

 Jack Smith moves to limit Trump rants in January 6 prosecution  - Joyce Vance - Substack

The Department of Justice in its Motion in Limine - the term for limiting potential evidence - declares  the trial judge Tanya Chutkan  of the U.S. District Court in Washington, D.C.  should exclude evidence regarding purported undercover, officers or government sources at the Capitol.  Also irrelevant is testimony about "the defendant's state of mind".  Such evidence may come from the defendant Trump's own mouth - but no other speaker could  - from their own knowledge - establish such a fact.

Abortion rights: Supreme Court will hear FDA challenge to mifepristone bar

 

Kaiser Family Foundation

A group of physicians labeling themselves the Alliance for Hippocratic Medicine has won a broad injunction against the FDA for its approval of Mifepristone - part of the two judge regimen which is employed in most abortions today. In  Food and Drug Administration v. Alliance for Hippocratic Medicine No. 23-235 the United States Department of Justice  petitioned the Supreme Court to block the suit.  The petition has been granted and is consolidated with the related manufacturer Danco's case. Elizabeth Prelogar, the Solicitor General explains in the Department of Justice's Cert Petition :

In 2000, the U.S. Food and Drug Administration (FDA) approved mifepristone for termination of early pregnancy based on the agency’s scientific judgment that the drug is safe and effective. FDA has maintained that judgment across five presidential administrations, and it has modified the original conditions of mifepris-tone’s approval as decades of experience have further confirmed the drug’s safety. Today, more than half of American women who choose to terminate their pregnancies rely on mifepristone to do so. And study after study has shown that when mifepristone is taken in accordance with its approved conditions of use, serious adverse events are exceedingly rare.

Respondents are doctors and associations of doctors who oppose abortion on religious and moral grounds. They do not prescribe mifepristone, and FDA’s approval of the drug does not require them to do or refrain from doing anything. Yet the lower courts held that respondents have Article III standing to challenge FDA’s actions. And the courts then countermanded FDA’s scientific judgment by suspending FDA’s 2016 changes to mifepristone’s approved conditions of use and FDA’s 2021 decision to eliminate the requirement that the drug be dispensed in person.

The Fifth Circuit modified the order of Amarillo, Texas District  Judge Matthew Kaczmaryk, who was rewarded with this seat for his anti-abortion advocacy.  The case is only one piece of a broad attack on the right of women to terminate a pregnancy.  On another front Harvard professor Adrian Vermeule argues forcefully that the 19th century Comstock Act bars mailing abortifacients.  Of course the fact that  the FDA has found the mifestiprone protocol to be safe and effective might persuade some that the text of the Act no longer commands.  But the six conservatives on the Supreme Court are unlikely to find such arguments persuasive.

- GWC 

Trump not immune from prosecution: Kovarsky and former Fed and state prosecutor agree

Lee Kovarsky (U Texas) and @legalnerd (former state and fed prosecutor) agree that Trump has a steep climb to argue he is immune from prosecution.  The three Dems on the high court are immune from that argument.  I think that Roberts as the relative institutionalist, and Kavanaugh who tends to shelter behind the Chief as the temperature rises should be reliable votes. - GWC

https://x.com/alegalnerd/status/1739049018469335258?s=20

The Supreme Court faces it's big test~ Vladeck and Mazie

The Supreme Court’s Big Trump Test Is Here https://www.nytimes.com/2023/12/23/opinion/trump-supreme-court.html?smid=nytcore-android-share

Opinion | The Supreme Court Should Overturn the Colorado Ruling Unanimously - The New York Times

Donald Trump constantly asserts the system is rigged.  It's not true. The biases all run in his favor - the gerrymanders, the Senate (should Wyoming and California each have two Senators), the "Electoral College)  are all anti-majoritarian. - GWC

Opinion | The Supreme Court Should Overturn the Colorado Ruling Unanimously - The New York Times: Barring Donald Trump from the 2024 ballot would be a mistake.

By Samuel Moyn Yale Law) 

"The truth is that this country has to be allowed to save itself. The Supreme Court must act, but only to place the burden on Mr. Trump’s political opponents to make their case in the political arena. Not just to criticize him for his turpitude, but to argue that their own policies benefit the disaffected voters who side with a charlatan again and again."

Rightist Alliance Defending Freedom is defending Idaho for free - Chris Geidner

https://open.substack.com/pub/chrisgeidner/p/adf-is-providing-free-legal-representation?utm_source=share&utm_medium=android&r=zv1g

The Long War on Gaza | Sara Roy | The New York Review of Books

The Long War on Gaza | Sara Roy | The New York Review of Books

 December 19, 2023

Gaza is being devastated as we watch. A stated goal of Israel’s assault, which has so far killed more than 19,400 people, is to “destroy Hamas” in retaliation for its attack that killed 1,200 in Israel’s south in October. But a number of critics, such as the Palestinian ambassor to the UK, Husam Zomlot, have argued persuasively that Israel’s goal is less to vanquish Hamas—impossible in any case—than to finally expel Palestinians from Gaza without international censure or sanction.

There is mounting evidence for their claims. In mid-October, Israel’s intelligence ministry drafted a “concept” paper proposing the forcible and permanent transfer of Gaza’s 2.3 million residents to the Sinai Peninsula. The ministry is less influential than its name suggests, but its policy ideas are nonetheless distributed among government and security services. In November a USAID official approached a colleague of mine and asked about the feasibility of building a tent city in the Sinai, which would be followed by a more permanent arrangement somewhere in the northern part of the peninsula. Later that month the daily Israel Hayom revealed that Prime Minister Benjamin Netanyahu seeks to “reduc[e] the number of Palestinian citizens in the Gaza Strip to the minimum possible.”

The current desecration of Gaza is the latest stage in a process that has taken increasingly violent forms over time.

 In the fifty-six years since it occupied the Strip in 1967, Israel has transformed Gaza from a territory politically and economically integrated with Israel and the West Bank into an isolated enclave, from a functional economy to a dysfunctional one, from a productive society to an impoverished one. It has likewise removed Gaza’s residents from the sphere of politics, transforming them from a people with a nationalist claim to a population whose majority requires some form of humanitarian aid to sustain themselves.

 

Edsall | How Much Can Trump 2.0 Get Away With? - The New York Times

A survey of opinions by prominent law professors on the dangers of a second Trump term in office.

Opinion | How Much Can Trump 2.0 Get Away With? - The New York Times: 

By Thomas Edsall

The first Trump term was both deeply alarming and a comedy of errors; a second Trump administration will be far more alarming, with many fewer errors.

Global Trade Faces Turmoil as Houthi's Disrupt Red Sea Shipping

Global Trade Faces Turmoil as Houthi's Disrupt Red Sea Shipping

Colorado Supreme Court Bars Trump From Ballot - 14th Amendment

I agree with every finding of the majority and disagree - on prudential grounds  with the conclusion.

Absent a conviction of Trump for his attempt to block the lawful transfer of power I think that denial of the right to vote for him will dangerously deepen the divisions in society and will incite the most lawless elements among us.

- GWC

Colorado Supreme Court

Anderson v. Griswold 2023 CO 63

Per Curiam

CHIEF JUSTICE BOATRIGHT dissented. 

JUSTICE SAMOUR dissented. 

JUSTICE BERKENKOTTER dissented.

The Electors and President Trump sought this court’s review of various rulings by the district court. We affirm in part and reverse in part. We hold as follows: 

• The Election Code allows the Electors to challenge President Trump’s status as a qualified candidate based on Section Three. Indeed, the Election Code provides the Electors their only viable means of litigating whether President Trump is disqualified from holding office under Section Three. 

• Congress does not need to pass implementing legislation for Section Three’s disqualification provision to attach, and Section Three is, in that sense, self-executing. 

• Judicial review of President Trump’s eligibility for office under Section Three is not precluded by the political question doctrine.

Section Three encompasses the office of the Presidency and someone who has taken an oath as President. On this point, the district court committed reversible error. 

• The district court did not abuse its discretion in admitting portions of Congress’s January 6 Report into evidence at trial. 

• The district court did not err in concluding that the events at the U.S. Capitol on January 6, 2021, constituted an “insurrection.” 

• The district court did not err in concluding that President Trump “engaged in” that insurrection through his personal actions.

 • President Trump’s speech inciting the crowd that breached the U.S. Capitol on January 6, 2021, was not protected by the First Amendment. ¶5 

The sum of these parts is this: President Trump is disqualified from holding the office of President under Section Three; because he is disqualified, it would be a wrongful act under the Election Code for the Secretary to list him as a candidate on the presidential primary ballot. ¶6  

 We do not reach these conclusions lightly. We are mindful of the magnitude and weight of the questions now before us. We are likewise mindful of our solemn duty to apply the law, without fear or favor, and without being swayed by public reaction to the decisions that the law mandates we reach. ¶7 We are also cognizant that we travel in uncharted territory, and that this case presents several issues of first impression.

The truth about Wreaths Across America

The truth about Wreaths Across America

End of an Era: The New Jersey Law Journal Is Going Digital. Here's What to Know. | New Jersey Law Journal

The Law Journal Is Going Digital. Here's What to Know. | New Jersey Law Journal

The New Jersey Law Journal will stop producing a print product starting next year. Here is a list of frequently asked questions intended to provide all the information you need to know about the change.

What is happening?

The New Jersey Law Journal, along with most other ALM publications—including The American Lawyer magazine, The Legal Intelligencer in Pennsylvania, the Daily Report in Georgia and the Daily Business Review in Florida—will be moving to digital-only.

Will there be any changes in coverage?

No. The Law Journal will continue producing the same amount and the same quality of in-depth coverage of the New Jersey legal community. That includes breaking news, timely analysis and deep insights on the latest major issues affecting the legal world. We will also continue to provide the same steady stream of insightful articles from contributing authors on the full range of issues affecting the legal world.

When is the change taking place?

The last print edition of the Law Journal will be coming out on Dec. 25.

Will this affect the website and email newsletters?

No. All of our content will continue to be available on our website. New stories will be accessible on the homepage as soon as they are published, and our top stories will be updated daily. News, analysis and columns—including Editorial Board pieces, case results, law firm moves, special sections and more—will continue to be available on the site and in our digital alerts and newsletters. Those alerts and newsletters will continue to be sent throughout the day.

Mifepristone challenge is about more than abortion access — it’s about keeping ideological interests out of fact-based decision making - The Boston Globe

Mifepristone challenge is about more than abortion access — it’s about keeping ideological interests out of fact-based decision making - The Boston Globe

By The Editorial BoardUpdated December 20, 2023, 4:00 a.m.

21

Abortion opponents want the court to override the judgement of federal health regulators about the circumstances under which patients can receive medication abortions.GABRIELA BHASKAR/NYT

Before the Supreme Court recessed for the holidays, it teed up a frontal attack not only on access to safe abortion care in America, but also on the ability of the Food and Drug Administration to ensure that all Americans can get safe, effective medical treatments of all kinds.

By taking up a case that will determine the future availability of mifepristone, half of the two-drug medical abortion regimen that has been administered for more than two decades, the court didn’t just place reproductive rights squarely on its docket for the second time in three years. More broadly, it will determine whether the judgment of FDA experts, based on a broad body of medical scientific research, can be second-guessed in court on the basis of political and religious ideology.

Accidental Courtesy - Darryl Davis and Race in America

 In the 1980s, musician Daryl Davis set out to understand the Ku Klux Klan. So he started befriending members at Klan rallies and joined an all-white country band.

Then, he met Imperial Wizard Roger Kelly. Davis spent years building a relationship with Kelly, establishing trust and, eventually, a friendship.⁠ They ate meals at each others' homes while Davis listened to Kelly, seeking to see how he could hate a person like Davis without even knowing him. Eventually, Kelly started listening to Davis and left the Klan altogether, giving Davis his robes and hood. And over the past decades, Davis has now convinced over 200 former Klan members to walk away.

Resources on War in Israel and Gaza - Fordham Jewish studies center

 Resources on War in Israel and Gaza -  Fordham Jewish studies center

In major doctrinal shift, Vatican officially OKs Catholic blessings for gay couples | National Catholic Reporter

In major doctrinal shift, Vatican officially OKs Catholic blessings for gay couples | National Catholic Reporter

By Christopher White

The Vatican's doctrinal office has officially declared it possible for Catholic priests to bless same-sex unions and divorced and remarried couples, under the condition that the blessings do not send mixed messages about the church's teaching on sacramental marriage and do not occur within a liturgical celebration.

While extremely narrow in scope, the Dec. 18 "declaration" from the powerful Dicastery for the Doctrine of the Faith may serve as the most concrete pastoral shift on the church's stance toward gay couples in the church's centuries' long history. 

The publication of the eight-page document, "Fiducia supplicans: on the pastoral meaning of blessings," comes less than three months after Pope Francis had personally opened the door to such a possibility in response to five retired conservative Catholic cardinals who had written to the pontiff about whether such blessings might be possible. 

While the new document distinguishes between liturgical blessings and spontaneous or personal ones, it states that Catholic priests may offer blessings to gay couples or those in "irregular" unions, if requested as a matter of popular piety or devotion. It also states that the couples "should not be required to have prior moral perfection" as a precondition for obtaining the blessing. 

Dobbs Inside the Supreme Court’s Dismantling of Roe - The New York Times

Inside the Supreme Court’s Dismantling of Roe - The New York Times

By Jodi Kantor and Adam Liptak Dec. 15, 2023
On Feb. 10 last year, Justice Samuel A. Alito Jr. showed his eight colleagues how he intended to uproot the constitutional right to abortion.
At 11:16 a.m., his clerk circulated a 98-page draft opinion in Dobbs v. Jackson Women’s Health Organization. After a justice shares an opinion inside the court, other members scrutinize it. Those in the majority can request revisions, sometimes as the price of their votes, sweating sentences or even words.

But this time, despite the document’s length, Justice Neil M. Gorsuch wrote back just 10 minutes later to say that he would sign on to the opinion and had no changes, according to two people who reviewed the messages. The next morning, Justice Clarence Thomas added his name, then Justice Amy Coney Barrett, and days later, Justice Brett M. Kavanaugh. None requested a single alteration. The responses looked like a display of conservative force and discipline.

In the months since, that draft turned into a leak, then law, then the rare Supreme Court decision that affects the entire country, reshaping elections, the practice of medicine and a fundamental aspect of being female. The story of how this happened has seemed obvious: The constitutional right to abortion effectively died with Justice Ruth Bader Ginsburg, whom President Donald J. Trump replaced with a favorite of the anti-abortion movement, Justice Barrett.

University Presidents Under Fire | The New Yorker

University Presidents Under Fire | The New Yorker

University Presidents Under Fire

No one should be duped into applauding a McCarthyesque spectacle of members of Congress demanding firings by universities.

December 17, 2023

By  Jeannie Suk Gersen ( John H. Watson, Jr., Professor of Law at Harvard Law School).

On a wet afternoon in late September, Claudine Gay, the first Black president of Harvard University, delivered her inaugural address. Gay, who had previously been the dean of Harvard’s Faculty of Arts and Sciences, said that knowledge is best served “when we commit to open inquiry and freedom of expression as foundational values of our academic community,” adding that a diversity “of backgrounds, lived experiences, and perspectives” enables “the learning that happens when ideas and opinions collide.”

The past several years, of course, have seen an erosion of academic freedom. From book bans to the notion that offensive ideas make one unsafe, both the right and the left have participated in curtailing open inquiry. As dean, Gay built a reputation for prizing the principles of diversity, equity, and inclusion, which are often perceived as intolerant of viewpoints—say, that marriage is limited to a man and a woman, or affirmative action is discriminatory, or there are only two biological sexes—that may offend marginalized groups. At her inauguration, she warned that diverse viewpoints “can be a recipe for discomfort, fired in the heat of social media and partisan rancor,” and that this can “make us vulnerable to a rhetoric of control and containment that has no place in the academy.”

A week later came the attack of October 7th. The shocking severity of Hamas’s slaughter, rape, and kidnapping of Israelis had not yet sunk in, but that same day thirty-four Harvard student organizations issued a statement holding “the Israeli regime entirely responsible for all unfolding violence,” because of its previous actions in Gaza. The backlash was swift. Some called for disciplinary measures. The hedge-fund C.E.O. Bill Ackman, a Harvard alumnus, demanded that the names of the organizations’ members be released, so that potential employers could avoid hiring them. A truck in Harvard Square displayed students’ faces with the caption “Harvard’s leading antisemites.” Denunciations came from lawmakers, including the Republican congresswoman Elise Stefanik, of New York, an ardent Trump supporter and a Harvard alumna.

On October 9th, Gay and the university’s deans issued a statement emphasizing “our common humanity” and “goodwill in a time of unimaginable loss and sorrow,” but did not explicitly condemn Hamas or rebuke the student groups. Gay’s successive pronouncements condemning the terror attack and denouncing antisemitism and introducing an advisory group to address it created an unfortunate appearance of her being pushed to say whatever might quell the public-relations storm. When she defended free speech in response to calls to curb anti-Israel or antisemitic statements, critics cried hypocrisy, noting that Harvard intervenes in incidents of alleged racist and sexist speech, under the rubric of harassment and discrimination policies—though not to the punitive degree the critics were demanding.

If Gay hoped to implement the free-expression vision of her inaugural address, the furor was derailing it. Many academic-freedom proponents yearned for the University of Chicago’s Kalven principles, which require university leaders not to issue statements on social and political matters, so that the university can be a neutral forum for diverse viewpoints, political protest, and candid discussion. But in November, amid pressure to punish protesters chanting “From the river to the sea, Palestine will be free,” Gay declared, “I condemn this phrase.” To some, including Hamas, the slogan advocates eliminating Israel or the Jewish presence in the Middle East, but to others it advocates freedom and equality for Palestinians.

During the December 5th congressional hearing on campus antisemitism, Representative Stefanik insisted that such slogans are genocidal. As she and other Republican lawmakers grilled three university presidents—Gay; Liz Magill, of the University of Pennsylvania; and Sally Kornbluth, of M.I.T.—she asked, “Does calling for the genocide of Jews violate Harvard’s rules on bullying and harassment?” Gay said that it can, “depending on the context.” Kornbluth and Magill offered similar responses. Stefanik declared them “unacceptable.”

The claim that the answer depends on context is correct; any responsible determination of a policy violation is context-dependent. In the context of October 7th, it would have been clearer to say something like “Yes, calling for a person to be killed because they are Jewish or Palestinian would constitute bullying and harassment. And, if the phrase ‘from the river to sea’ was used specifically to threaten to kill someone, that would at a minimum violate the rules.” It is unlikely, however, that any correct answer would have been acceptable. The presidents walked into an ambush, having prepared for a deposition (where counsel advises minimalist answers) rather than for political grandstanding. And the moment plainly needed a moral statement rather than a legally precise reply.

KEEP READING

The Discovery of Hepatitis C — The 2020 Nobel Prize in Physiology or Medicine _ NEJM.PDF

The Discovery of Hepatitis C — The 2020 Nobel Prize in Physiology or Medicine _ NEJM.PDF

Perspective

HISTORY OF MEDICINE

The Discovery of Hepatitis C—The Nobel Prize in Physiology or Medicine - 2020

JayH.Hoofnagle,M.D.,and Stephen M.Feinstone,M.D

The Chancellor of Berkeley Weighs In | The New Yorker

The Chancellor of Berkeley Weighs In | The New Yorker

At Berkeley we would strongly condemn any advocacy for genocide against the Jewish people. And our response to that hate speech would not stop with condemnation. This campus can and will discipline hate speech not protected by the First Amendment. Any speech not protected by the First Amendment would, by definition, violate the Student and Faculty Codes of Conduct. And, even if that hate speech was protected, it would not stop Berkeley from strongly condemning it and marshalling the university’s educational resources to address the evil and the ignorance at the heart of any call for genocide against the Jewish people. Yet, I am certain that even this commitment—which is as far as we can go under the law—will sound far from sufficient to some, and an unwarranted over-reaction to others.

- Carol Crist, Chancellor, UC Berkeley

Abortion Pills by David S. Cohen, Greer Donley, Rachel Rebouché :: SSRN

The Supreme Court today agreed to hear a challenge to the FDA's measures to, first, assure that abortifacient drugs are safe. And, second, to ease access to the drugs which account for over half of all abortions in the U.S. today.

- GWC

Abortion Pills by David S. Cohen, Greer Donley, Rachel Rebouché :: SSRN

(forthcoming, Stanford Law Review)

Abstract

Abortion is now illegal in roughly a third of the country, but abortion pills are more widely available than ever before. Clinics, websites, and informal networks openly facilitate abortion pill distribution, legally and illegally, across the United States, while antiabortion advocates and legislators are adopting all manner of strategies to attack pills. This Article is the first in the legal literature to explore this defining aspect of this new environment and the novel issues it raises at the level of state law, federal policy, and on-the-ground advocacy.

The Article begins by detailing antiabortion strategies to stop pills by any means necessary. These tactics include a federal lawsuit attacking the approval and regulation of mifepristone, one of two abortion pills; a revival of the long-unenforced Comstock Act’s ban on mailing anything that induces an abortion; a redefinition of abortion’s location to chill medication abortion provision; attacks on online information and pill supply chains; and attempts to target those who take or help someone access abortion pills. 

We then consider the opposing movement to increase access to abortion pills: abortion shield laws that protect cross-border telehealth, pharmacist prescription of abortion pills, and efforts to evade abortion bans through missed period pills and advanced provision. Finally, we examine how the U.S. Food and Drug Administration (FDA) can use its powers to increase or decrease access to pills, including lifting the unnecessary restrictions on medication abortion, changing its label, or asserting that FDA rules governing medication abortion partially preempt state abortion bans.

The Article concludes by offering the first analysis of how, after Roe’s reversal, abortion pills and their attendant controversies will transform the abortion debate in this country. With pills, state governments and the medical establishment lose even more control over abortion; rather, informal and underground networks will meet much of the demand for abortion pills, cutting out gatekeepers. Pills’ wide availability will also reshape the definition of abortion, which is ill-suited for the ambiguities of drug provision, and could destigmatize abortion care. At the same time, however, attempts to punish people who provide or use pills will exacerbate the public health and criminal justice consequences that new abortion bans have wrought, entrenching existing class and race differences. Thus, as abortion pills proliferate—both within and outside of law—abortion inequities could as well. Ultimately, these emerging legal issues will profoundly alter how people think about abortion.


[This version was updated October 28, 2023.]

ROLLING BACK TRANSPARENCY IN CHINA’S COURTS - Columbia Law Review

ROLLING BACK TRANSPARENCY IN CHINA’S COURTS - Columbia Law Review

Benjamin Liebman,* Rachel Stern,** Xiaohan Wu *** & Margaret Roberts ****

There has been a flood of scholarship on the importance of information to governance in recent years, focused on democratic and authoritarian countries alike. Scholars have recognized a shift in authoritarian regimes from rule by force and fear to increased use and manipulation of information as a way to build popular support and stay in power. 1 See Sergei Guriev & Daniel Treisman, Spin Dictators: The Changing Face of Tyranny in the 21st Century 3–30 (2022) (“[T]oday’s strongmen realize that in current conditions violence is not always necessary or even helpful. . . . In place of harsh repression, the new dictators manipulate information.”); see also Huirong Chen & Sheena Chestnut Greitens, Information Capacity and Social Order: The Local Politics of Information Integration in China, 35 Governance 497, 497–98 (2022) (discussing China’s use of information integration in its fragmented authoritarian form of governance).Direct censorship remains a tool of authoritarian control, but authoritarian rulers also turn to other strategies to crowd out critical voices, including information flooding, distraction, manipulation of public opinion online, and the creation of technical barriers to those seeking information. 2 See Margaret E. Roberts, Censored: Distraction and Diversion Inside China’s Great Firewall 105–11 (2018) [hereinafter Roberts, Censored] (discussing the various alternatives to direct censorship that China employs to influence public opinion); Gary King, Jennifer Pan & Margaret E. Roberts, How the Chinese Government Fabricates Social Media Posts for Strategic Distraction, Not Engaged Argument, 111 Am. Pol. Sci. Rev. 484, 496–97 (2017) (analyzing the impact of an “astroturfing program” of pro–Communist Party online commentators on shaping public opinion as an alternative to censorship).Authoritarian countries have also borrowed governance mechanisms from liberal systems, including greater use of transparency as a tool for addressing a range of challenges. 3 See Chen & Greitens, supra note 1, at 508–09 (explaining that leaders in a Chinese district addressed accountability challenges by increasing transparency); Zhuang Liu, T.J. Wong, Yang Yi & Tianyu Zhang, Authoritarian Transparency: China’s Missing Cases in Court Disclosure, 50 J. Compar. Econ. 221, 221–22 (2022) (discussing the use of transparency by authoritarian regimes); Tamir Moustafa, Law and Courts in Authoritarian Regimes, 10 Ann. Rev. L. & Soc. Sci. 281, 294 (2014) (describing authoritarian regimes’ increasing reliance on liberal democratic institutional forms).Borrowing runs both ways, with elected leaders in democratic as well as newly authoritarian states borrowing from authoritarian playbooks to cement their authority.4 Recent writing on liberal systems has likewise noted how new forms of information transmission as well as misinformation can destabilize existing frameworks for regulating information. See, e.g., Tim Wu, Is the First Amendment Obsolete?, 117 Mich. L. Rev. 547, 557–68 (2018).

Despite this burgeoning conversation about the centrality of information management to democratic and authoritarian governments, scholars are only just beginning to address the role of legal information in sustaining authoritarian rule. Scholarship on the spread of authoritarian law has largely focused on how authoritarian rulers subvert legal norms or use law and courts to maintain social stability, foster economic development, or boost their own legitimacy. 5 See Tom Ginsburg & Tamir Moustafa, Introduction: The Functions of Courts in Authoritarian Politics, in Rule by Law: The Politics of Courts in Authoritarian Regimes 1, 2, 4–11 (Tom Ginsburg & Tamir Moustafa eds., 2008) (exploring “the conditions under which authoritarian rulers delegate decisionmaking to judiciaries and the political consequences of that choice”); Moustafa, supra note 3, at 283–87 (examining the various “ways in which law and courts are deployed as instruments of governance in authoritarian states”); Taisu Zhang & Tom Ginsburg, China’s Turn Toward Law, 59 Va. J. Int’l L. 306, 375–89 (2019) (“[T]he empowerment of courts . . . has a straightforward connection with the Party leadership’s interest in sociopolitical control and economic development . . . .”).There has been less attention to how such states build narratives about their legal systems or the role of legal information in such systems. 6 There is, however, extensive scholarship on socialist legal systems that explores the importance of legal education in efforts to construct state authority and transform society. See generally Jennifer Altehenger, Legal Lessons: Popularizing Laws in the People’s Republic of China, 1949–1989 (2018) (discussing the role of legal education and legal propaganda in the early years of the People’s Republic of China).Rapid digitization of court information has brought renewed focus both to the lack of legibility in legal systems around the world and to the question of how courts produce and use public information. 7 One recent example is the work of David Freeman Engstrom and R.J. Vogt, who explore how rapid digitization may transform judicial governance in the United States. See David Freeman Engstrom & R.J. Vogt, The New Judicial Governance: Courts, Data, and the Future of Civil Justice, 72 DePaul L. Rev. 171, 176–80 (2023). In the literature on Western systems, and in particular the United States, the focus is often on whether digitization will facilitate more equitable access to the legal system or reinforce differences between the haves and the have-nots. See id. at 176. Digitization offers opportunities for legal systems to be more legible than in the past but also new challenges and possibilities for misuse. See id.Courts play essential roles in information management: Courts are sites where information about law is negotiated, and their decisions about whether and how to publicize case outcomes have the potential to shape public perceptions of the legal system, society, and the state more generally.

This lack of attention to legal information stems in part from two common beliefs: Liberal legal systems are inherently transparent, and authoritarian legal systems closely guard information. Sustained scholarship has detailed problems with transparency and legibility in the U.S. legal system. 8 Many commentators have noted that U.S. courts are far less transparent and accessible than they are often made out to be. See, e.g., T.S. Ellis III, Sealing, Judicial Transparency and Judicial Independence, 53 Vill. L. Rev. 939, 947 (2008); Hillel Y. Levin, Making the Law: Unpublication in the District Courts, 53 Vill. L. Rev. 973, 975–77 (2008); Robert A. Mead, “Unpublished” Opinions as the Bulk of the Iceberg: Publication Patterns in the Eighth and Tenth Circuits of the United States Courts of Appeals, 93 Law Libr. J. 589, 597 (2001); Judith Resnik, Courts: In and Out of Sight, Site, and Cite—The Norman Shachoy Lecture, 53 Vill. L. Rev. 771, 772–74 (2008). This literature focuses not on censorship but on trends such as the reduced use of trials and the rise of private dispute resolution and settlement, the use of unpublished cases, the sealing of cases, and the increased paper-only review of cases. Commentators on other systems have made similar observations. See, e.g., Jeffrey K. Staton, Judicial Power and Strategic Communication in Mexico 4 (2010) (noting the prevalence of selective transparency among Latin American supreme courts); David T. Johnson, Where the State Kills in Secret: Capital Punishment in Japan, 8 Punishment & Soc’y 251, 253–56 (2006) (arguing that secrecy regarding capital punishment in Japan derives from an effort to prevent scrutiny of the practice); Liz Fekete, Europe: ‘Speech Crime’ and Deportation, Race & Class, Jan. 2006, at 82, 82–83 (arguing that some European states use immigration proceedings to evade transparency in their legal systems).At the same time, authoritarian legal systems, most notably China, have begun to put vast quantities of legal information online, with more than 141 million court judgments posted online since China’s Supreme People’s Court (SPC) established the China Judgements Online (CJO) website in 2014.9 Zhongguo Caipan Wenshu Wang (中国裁判文书网) [China Judgements Online], http://wenshu.court.gov.cn [https://perma.cc/STY7-EYSW] [hereinafter CJO] (last visited Aug. 21, 2023). Vietnam and Russia are two examples of other authoritarian states that have also begun releasing large quantities of judicial decisions online. Vietnam started requiring courts to publish their decisions online in 2017, using a centralized website similar to CJO. Trang (Mae) Nguyen, In Search of Judicial Legitimacy: Criminal Sentencing in Vietnamese Courts, 32 Harv. Hum. Rts. J. 147, 176 (2019). Russian judicial decisions are also meant to be posted publicly on court websites in compliance with the country’s laws on information transparency. Lauren A. McCarthy, Douglas Rice & Aleks Lokhmutov, Four Months of “Discrediting the Military”: Repressive Law in Wartime Russia, 31 Demokratizatsiya 125, 133 (2023).

This Essay presents a case study showing how legal information can be manipulated: through the deletion of previously published cases from China’s online public database of court decisions. Using our own dataset of all 42 million cases made public in China between January 1, 2014, and September 2, 2018, we examine the recent deletion of criminal cases from the CJO website. Our data suggest that the reasons court officials remove cases are often reactive and ad hoc. But, taken together, the decision(s) to remove hundreds of thousands of unconnected cases shape a narrative about the Chinese courts, Chinese society, and the Chinese Party-State.

Literature on authoritarian regimes has explored why such states embrace transparency. 10 See infra text accompanying notes 77–81.In this Essay, we ask different questions: What previously public information is removed, and why? Media accounts of the recent case removals in China frame case deletions largely as efforts to shield the Chinese legal system from international scrutiny. 11 See, e.g., Luo Jiajun & Thomas Kellogg, Verdicts From China’s Courts Used to Be Accessible Online. Now They’re Disappearing., ChinaFile: Viewpoint (Feb. 1, 2022), https://www.chinafile.com/reporting-opinion/viewpoint/verdicts-chinas-courts-used-be-accessible-online-now-theyre-disappearing [https://perma.cc/845T-DKJW] (suggesting that the Chinese government has removed cases that “present an unflattering view of Chinese society,” including cases that highlight official corruption or the government’s “use of the criminal justice system to crack down on its critics”).In contrast, we find that the deletion of cases likely results from a range of overlapping concerns. These include the international and domestic images of Chinese courts, institutional relationships within the Chinese Party-State, worries about revealing negative social phenomena, and concerns about copycat crimes. We identify a trend of “sensitivity contagion,” in which a small number of potentially sensitive cases leads to the removal of all cases involving certain categories of crimes, despite most cases being routine. These concerns reflect the multiple audiences for the public release of court data in China. Viewing disappeared cases also provides a window into fault lines in Chinese society, revealing areas of sensitivity largely overlooked in prior scholarship.

Our findings also provide insight into the interrelated mechanisms of censorship and transparency in an era in which data governance is increasingly central. We highlight how courts seek to curate a narrative that protects them from criticism and boosts their standing with the public and within the Party-State. Prior writing on authoritarian legal systems has generally assessed courts’ power in terms of their ability to decide cases on the law absent external influence or to rule against other state actors. 12 See, e.g., Peter H. Solomon Jr., Courts and Judges in Authoritarian Regimes, 60 World Pol. 122, 124–29 (2007) (book review) (grouping authoritarian courts into four categories based on their level of independence from other branches of government and ability to rule against the state).Examining how Chinese courts manage the removal of cases suggests that how courts curate and manage information disclosure may also be central to their legitimacy and influence.

The findings we present reflect the Chinese political–legal system. Yet the questions raised are likely to have wider application as legal systems worldwide confront how much information to make public, how long information should remain public, who should determine when information is removed from the public domain, and the effect of mass digitization of court information on court and litigant behavior. Chinese courts may be unusual in their emphasis on equating the total number of cases made public to the fairness of the legal system and for the reasons they remove cases from public view. But they are unlikely to be alone in determining that not all court information should remain public or in seeking to use legal information to shift how they are perceived.