One of the nation’s strangest laws is primed for reform in a new bill from Rep. Steve Cohen, D-Tenn., that would bring a dose of logic to federal drug policy.

That unusual law — Supreme Court Justice Neil Gorsuch called it a “curious animal” — is the Controlled Substance Analogue Enforcement Act. Known as the Analogue Act for short, it’s part of the Anti-Drug Abuse Act of 1986, which was rushed into law ahead of that year’s midterm elections by a bipartisan Congress and Republican President Ronald Reagan. Passed in the shadow of high-profile deaths, including that of basketball star Len Bias, the Anti-Drug Abuse Act brought mandatory minimum sentences and a vast disparity in punishment for crack and powder cocaine offenses, respectively.

The Analogue Act separately sought to solve the problem of so-called designer drugs. The problem, as the authorities saw it, was that the law was too specific. Cocaine, heroin and other drugs were illegal because they were listed under the Nixon-era Controlled Substances Act’s drug schedules. But nothing was stopping underground chemists from tinkering with listed substances to produce new ones that the law didn’t capture. Congress could ban novel drugs as they appeared on the illicit market, but that took time and would only apply going forward. Bad actors went unpunished in the meantime, so the government thinking went.

As I laid out in my book, “Bizarro,” on the inside story of the Analogue Act and one of the most peculiar cases it spawned, law enforcement was tired of playing catchup in the cat-and-mouse game. It wanted to go on offense. The result was the Analogue Act, which expanded federal drug law to say that any substances “substantially similar” to already illegal ones like cocaine, heroin and others on the most restricted drug schedules were illegal, too.

‘Curious animal’

In solving one problem, the Analogue Act confronted another: the Constitution.

Due process means that people need notice of what’s legal, so they can live their lives accordingly. Yet the act’s substantial-similarity test outlawed a potentially infinite number of substances with a vague, unscientific standard. Whether that standard is satisfied in a given case depends on whether prosecutors can convince juries that one substance is “substantially similar” to another. The ambiguous test has led to conflicting verdicts in different cases involving the same substance.

Even the Drug Enforcement Administration’s chemists haven’t always agreed among themselves about which substances qualify as analogues. If the government’s own experts can’t agree about what’s legal, how can people subject to the law be expected to know?

Judges appointed by Republican and Democratic presidents alike have questioned the act’s constitutionality. Notable among them is Gorsuch. Before President Donald Trump appointed him to the Supreme Court in 2017, the jurist called the act a “curious animal” in a 2015 ruling when he was on the Denver-based appeals court. Gorsuch deemed the “substantially similar” test’s meaning an “open question,” as he wondered whether it gives citizens fair notice.

But even since he joined the high court, the justices have refused to consider a petition attacking the Analogue Act. The court’s lack of interest effectively has left the matter with Congress.

Taming the animal with an ‘and’

Enter the new bill announced by Cohen, who has criticized the drug war during his nearly two decades in the House. The Democrat isn’t running for re-election this year, after Tennessee Republicans passed a congressional map, backed by recent Supreme Court rulings, that splintered his Memphis base in what was the state’s only majority-Black district.

Cohen’s “Public Health and Research Reforms in Controlled Substances Act” would, as its name suggests, shift drug law from a punitive approach to one centered on public health, with a revamped scheduling system, scientific research promotion and other measures.

Its analogue amendment wouldn’t overturn the constitutionally suspect “substantially similar” test, but it would address one of its ridiculous aspects.

To understand the fix, it’s necessary to know what the act says currently. It has three sections that define what a controlled substance analogue is, according to its 1) structure, 2) effect and 3) represented effect. It defines an analogue as a substance:

i) the chemical structure of which is substantially similar to the chemical structure of a controlled substance in schedule I or II;

ii) which has a stimulant, depressant, or hallucinogenic effect on the central nervous system that is substantially similar to or greater than the stimulant, depressant, or hallucinogenic effect on the central nervous system of a controlled substance in schedule I or II; or

iii) with respect to a particular person, which such person represents or intends to have a stimulant, depressant, or hallucinogenic effect on the central nervous system that is substantially similar to or greater than the stimulant, depressant, or hallucinogenic effect on the central nervous system of a controlled substance in schedule I or II.

Beyond the vagueness at the heart of the term “substantially similar,” a key issue is the language in between each section. There’s an “or” in between the second and third sections on effect and representation, but there’s nothing in between the first and second sections on structure and effect. A draft version of the 1986 law had an “and” in between those first two sections, which would have clearly meant that, to qualify as an analogue, at least a substantially similar chemical structure was required.

It’s unclear why the “and” didn’t make it into the final version of the Analogue Act. But its omission has prompted an outlier legal argument that prosecutors only have to prove one of the three prongs: structure, effect or representation of effect. The consequences of that reading are extreme, because if only representation is required (regardless of what the substance actually is or does), then people can serve decades in prison for selling something that isn’t similar to a scheduled drug at all.

What an appeals court called an “absurd” example of that phenomenon arose in a prosecution against people who sold a mixture of candle wax and flour under the pretense that it was crack/cocaine. “The treatment of candle wax and flour, no matter how it is marketed, as a schedule I controlled substance is an ‘absurd’ result of the kind our canons of construction instruct us to avoid,” the Philadelphia-based court said in a 2003 case, reversing a district court that ruled otherwise.

Yet the concern over that absurdity was not relegated to history. Just a few years ago, a San Francisco-based appeals court suggested that the act could still be used to achieve such an outlandish outcome. Even the government wasn’t pressing for that aggressive interpretation, so the court didn’t feel bound to embrace it in that case.

But if the Analogue Act stays on the books as is, courts could keep reaching “absurd” results in future cases.

‘Open question’

Cohen’s proposed legislation would prevent that absurdity by adding the “and.” Had it been there at the time of the wax-and-flour case, the district court would have had to side with the defense, because even if the mixture was marketed as crack, its chemical structure was not substantially similar to crack by any reasonable measure.

To be sure, the new bill’s analogue amendment wouldn’t solve the due process problem inherent in the “substantially similar” test; that could probably only be done by overturning the act entirely. Still, the bill would bring a dose of logic that has been missing for four decades.

Whether that modest measure has the votes to become law with today’s Congress and White House is, as Gorsuch put it in 2015, an “open question.” But even if this bill doesn’t pass, it’s an important question to keep asking.

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The Supreme Court on Tuesday told Hillary Clinton to respond to a petition from President Donald Trump that seeks to revive his lawsuit that claims she conspired with others ahead of the 2016 election to “weave a false narrative” that his campaign colluded with Russia.

Lower courts have rejected Trump’s suit, and he wants the justices to intervene. Clinton and her civil co-defendants initially waived their right to respond to Trump’s petition. Had the court not requested a response, that would have all but guaranteed that the petition was headed for denial.

Although the response request is good news for Trump, it doesn’t necessarily signal the court is certain to grant review of his petition. Because it takes only one justice to request a response, it’s unclear how much of an appetite there is on the nine-member bench to take this one up. Response requests don’t specify how many justices asked for the response, nor do they explain why the response was requested.

It takes four justices to grant review.

Clinton’s brief opposing Trump’s petition is now due Nov. 27. The justices will consider in a private conference at some point after that whether to grant review. The Democrat recently made news for endorsing expanding the number of justices who sit on the court that currently has a 6-3 majority of Republican appointees.

Trump argues that he put off bringing the civil case during his first term due to his presidential responsibilities at the time. In his petition, his personal lawyers cast high court review as “necessary to protect the Presidency, and to prevent judicial disagreement from becoming a license to punish its advocates.”

The lower courts have rejected Trump so far. A conservative appeals court upheld a district judge’s ruling that dismissed his suit and imposed nearly $1 million in sanctions against him, Alina Habba and her law firm. The appellate panel noted that many of his and Habba’s legal claims “were indeed frivolous.”

The panel also cited the Supreme Court’s 1997 ruling in Clinton v. Jones that said Bill Clinton couldn’t avoid judicial process in civil litigation while he was in office. “If a president can be haled into court, he cannot be excused from suing to enforce his rights,” the panel reasoned.

In his Supreme Court petition, Trump’s lawyers maintained that there is an important distinction between suing and being sued. They said the Clinton v. Jones precedent “permitted another citizen’s suit against the President while requiring respect for the Presidency; it did not require him to pursue his own claims while in office or lose them.”

They also cited the Supreme Court’s 2024 criminal immunity ruling in Trump’s favor to argue that courts can’t make presidents decide whether to initiate personal litigation while in office. His lawyers are pressing that position as the president pursues an array of personal litigation, including multiple defamation claims.

This case is not Trump’s only pending bid to persuade the justices to revive personal litigation that he has lost in lower courts, nor is it the only one to invoke the presidency in doing so.

Although the Supreme Court has already rejected one of his two petitions seeking to reverse his defamation losses against the writer E. Jean Carroll, his second petition is awaiting a response from Carroll before the justices decide whether to grant or likewise deny that one. There, too, his lawyers cite the criminal immunity ruling in seeking to overturn the $83.3 million judgment Carroll won for statements Trump made during his first term.

The president is also pressing a defamation appeal against CNN over the network’s use of the phrase “big lie” regarding his 2020 election claims. That petition is awaiting a response from CNN, which, as happened in this Clinton litigation, the court requested after the network waived its right to respond.

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A federal judge ruled Tuesday that a Donald Trump-backed lawyer has been “unlawfully serving” as the top federal prosecutor in Los Angeles. The decision regarding Bill Essayli’s service does not immediately take effect, and Essayli said the Supreme Court “will ultimately decide” the legality of his tenure.

The justices may have the last word not only on Essayli but also on a host of lawyers who have purported to lead districts around the country without being confirmed by the Senate. U.S. District Judge J. Michael Seabright noted in his ruling that the federal government has asked the Supreme Court to consider the issue in disputes over Trump’s chosen lawyers in Nevada (Sigal Chattah) and northern New York (John Sarcone).

In an order accompanying his ruling, Seabright, a George W. Bush appointee, gave the government a chance to try to halt his ruling pending appeal as the administration presses the appointment issue to the justices.

Urging the high court to use the Nevada case to resolve the nationwide issue, the Justice Department argued that lower court rulings against the administration “misconstrue” the law that deals with federal vacancies, “upend a quarter-century of practice,” “threaten chaos for the next presidential transition” and “cast a pall over prosecutions in 14 judicial districts nationwide.”

We could learn later this year whether and when the justices will take up the matter. They could grant review to decide it this term after holding a hearing and issuing a ruling that would be expected by July.

Meanwhile, given Seabright’s pause on his decision taking immediate effect, Essayli said he will “continue running the office.” The New York Times included Essayli on its list of prosecutors who are “carrying out Trump’s grievance agenda,” writing that he “has pushed to charge cases against anti-Trump protesters, many of which fell apart in court” and “carried out a direct order from Mr. Trump to open an investigation of voting in the state.”

Subscribe to the Deadline: Legal newsletter for expert analysis on the top legal stories of the week, including updates from the Supreme Court and developments in the Trump administration’s legal cases.

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As is true of the first two criminal cases the Trump Justice Department brought against James Comey in Virginia and North Carolina, the third set of charges, made public this week in Washington, D.C., presents multiple legal issues.

A potentially fatal threshold issue is that federal prosecutors may have blown a key deadline — indeed, the key deadline, one that could kill the latest case against the former FBI director before it even gets going.

The Washington charges, stemming from allegations of unlawfully sharing sensitive government information with a journalist, have a 10-year statute of limitations. That means prosecutors must bring them within a decade of the alleged offense.

The DOJ apparently brought the case just in time to make the 10-year window for alleged criminal conduct from 2016. But regardless of the allegations’ validity on their merits (which a jury could decide down the road, if it gets that far), a more pressing issue is the type of legal instrument that prosecutors used to bring these charges. They used an information, which doesn’t require grand jury approval, as opposed to an indictment, which does. The reason that’s a possibly fatal problem is that the law for these charges says they must be brought within 10 years by “indictment,” without mentioning “information” as an option.

Comey’s lawyers made that point in a pending motion to dismiss. They noted that Congress has referenced both informations and indictments in other laws; therefore, the defense argued, lawmakers know how to specify the difference but chose to require an indictment here. The defense asked the judge to “enforce the text that Congress wrote and dismiss the information as time barred.”

Opposing the dismissal motion, the DOJ argued that it’s both premature and that the difference between informations and indictments isn’t as big a deal here as Comey claims. Prosecutors cited the general five-year statute of limitations law, which references both indictments and informations; from that, they argued that the 10-year law for Comey’s charges, which mentions indictments but not informations, is really only about extending the limitations period, not about the form those charges must take.

The bottom line is that if Comey is correct, then the DOJ’s failure to obtain an indictment within the 10-year period is not a mere technical foot fault — it’s the end of the case before it begins. This latest case, therefore, starts with a crucial court battle over whether it’s a case at all.

It’s a battle that the DOJ could have avoided by securing an indictment. We don’t know why it didn’t do so. We do know, generally, that it has had trouble securing approval of charges from citizens called to grand jury service in President Donald Trump’s second term in some of the administration’s most political cases in the nation’s capital.

At any rate, this felony case won’t proceed toward trial without prosecutors first securing an indictment. That grand jury process is required unless a defendant waives their right to it, which we have no reason to expect here. So even if prosecutors win this threshold battle and succeed in stopping the clock with their placeholder information, they still need to clear that grand jury hurdle.

If they do so, then that would only put prosecutors in a position to face the more standard pretrial motions to dismiss before the case can make it to trial. I say “more” standard because a notable feature of litigation in Trump’s second term has been defendants raising claims that they have been vindictively or selectively prosecuted by this revenge-fueled administration.

As with grand jury refusals to approve indictments, even potentially successful motions along those lines had been rare. Yet they have been raised in a series of high-profile cases in Trump’s second term, including in Comey’s other cases. If this latest one proceeds, then we should expect him to make such a motion here, too. We should also expect it to be taken seriously in this third attempt to prosecute the Trump target with criminal charges that were lodged on the eve of a 10-year deadline — charges which, Comey’s lawyers observed in their pending motion to dismiss, previous prosecutors refused to bring.

And that’s before even getting to a potential trial, where the government would have the burden to prove its case beyond a reasonable doubt. In the factual background section of the DOJ’s pending opposition motion, it said the government “uncovered evidence” that, when Comey was FBI director during Trump’s first term (before Trump fired him in 2017), he told his staff to share information with a New York Times reporter to “correct misinformation” from another outlet’s reporting about email surveillance.

Like all defendants, Comey is presumed innocent until proven otherwise.

His Virginia charges, which related to his congressional testimony in 2020, were dismissed pretrial last year, because a judge found the Trump-backed lawyer overseeing the case, Lindsey Halligan, was unlawfully appointed. The DOJ is appealing.

Meanwhile, the judge in North Carolina is considering Comey’s pretrial motions to dismiss that case, which stems from his posting a photo of seashells on Instagram that the government argued amounted to a criminal threat against the president.

The post How the Trump DOJ can lose the new Comey case before it even starts appeared first on MS NOW.

The Supreme Court’s presidential immunity ruling for Donald Trump is one of the precedents the Justice Department has relied on in defense of firing Maurene Comey as a federal prosecutor. That defense failed Monday, at least at the trial court level, when U.S. District Judge Jesse Furman ordered retroactive reinstatement and back pay for the daughter of former FBI Director James Comey.

Maurene Comey had alleged that she was fired last year because of her relation to her father, whom Trump fired during his first presidential term and who then became a prominent Trump critic and a serial target of federal prosecution in Trump’s second term.

Backing her civil lawsuit on Monday, Furman said that neither the high court’s 2024 immunity ruling in Trump v. United States nor its ruling on presidential firing power last term in Trump v. Slaughter supported the government’s “sweeping and unprecedented theory of executive authority.”

The Obama-appointed judge in the Southern District of New York noted that unlike the Slaughter case, the immunity ruling wasn’t even about the president’s removal power but rather immunity from criminal prosecution. Still, the Department of Justice cited language from the immunity case to argue that assistant U.S. attorneys like Maurene Comey exercise “core executive power” under the Constitution and are therefore removable at will because, the government argued, a contrary rule would impede the president’s “conclusive and preclusive” power.

Furman conceded that the immunity ruling’s sweeping language made the government’s claim “at least colorable.” But he cautioned that the high court itself had said to read its opinions in context. In light of that admonition, Furman said there were “several good reasons” not to rely on the immunity ruling here.

“At most,” the judge wrote, “the language in Trump v. United States upon which [government] Defendants rely should be read to mean that Congress may not regulate the removal of an Executive Branch official at the behest of the President himself and may not interfere directly with investigative and prosecutorial decisionmaking.”

Against that backdrop, Furman wrote, the immunity case is irrelevant to this one, because government officials insisted that Comey’s firing wasn’t ordered by Trump. “To the contrary,” the judge wrote, “they assert that it was the then-Attorney General [Pam Bondi] who ‘authorized and directed’ Comey’s removal.”

The judge concluded that he had to reject what he deemed the government’s bid to upend longstanding limits on executive firing power that are still intact even after recent Supreme Court rulings. He said that endorsing the DOJ’s argument would disrupt the constitutional order and “risk a return to the spoils system that Congress has sought to end since the nineteenth century.”

He said the government violated the separation of powers, federal law and the plaintiff’s Fifth Amendment due process and statutory rights.

The DOJ said it would appeal Furman’s ruling “in due course.” If the case reaches the justices, then the GOP-appointed court majority that issued the immunity and Slaughter rulings can decide whether and how they apply here.

The post Why a judge said the Trump immunity ruling doesn’t justify Maurene Comey’s firing appeared first on MS NOW.

Attorney General Todd Blanche said on social media over the weekend that the Department of Justice does not seek “to stop the certification of Alaska’s election.”

The Department of Justice does not seek to stop any ballot from being cast or to stop the certification of Alaska's election. This litigation seeks to ensure that after Alaskans cast their ballots, they are preserved in a manner so that only Alaska's governing officials have the…

— Attorney General Todd Blanche (@AGToddBlanche) October 24, 2026

That statement is tough to square with the lawsuit the DOJ filed days earlier against Alaska’s election officials, as the department seeks to intervene there and in California amid GOP fears of losing congressional control in next week’s midterm elections.

The federal government’s Alaska complaint stems from its concern that Republican Sen. Dan S. Sullivan could lose a close race to Democratic challenger Mary Peltola due to the presence of a candidate on the ballot named Daniel J. Sullivan, who the DOJ said is running “with the intention of misleading supporters of Senator Sullivan into voting for him.”

But even if that claim about the other Sullivan’s intention is true, the legal question is: What can a federal court do for the federal government about it?

In the part of its complaint in which the DOJ makes its case for having legal standing to bring the suit, it said that its asserted legal injuries would be solved by a court order “declaring a certification of an election result prejudiced by Daniel J. Sullivan’s inclusion on the ballot unlawful and enjoining defendants [Alaska officials] from allowing such a certification to occur.”

Putting the merits of the DOJ’s argument aside — election law experts have deemed it incredibly weak — its complaint expresses an interest, contra Blanche’s post, in stopping the certification of Alaska’s election. To “enjoin” something is to stop it from happening. At least, according to the complaint, the DOJ wants to halt Alaska’s certification if the result is “prejudiced” by the other Sullivan’s inclusion on the ballot, At least, according to the complaint, the DOJ wants to halt Alaska’s certification if the result is “prejudiced” by the other Sullivan’s inclusion on the ballot — a claim that would be difficult to demonstrate in a timely manner, if ever.

Furthermore, in the complaint’s “prayer for relief,” which is the standard section where a plaintiff tells a court what it wants, the DOJ lists two specific things.

First, it asks the court to: “Declare that certification of any result that may be impacted by voter confusion, as defined above, would violate Defendants’ duties under the NVRA [National Voter Registration Act] to ‘protect the integrity of the electoral process.’”

Second, it asks the court: “Defendants from certifying any result that may be impacted by voter confusion, as defined above, pending an investigation to determine whether votes cast for Daniel J. Sullivan were meant to be cast for Senator Sullivan and any further procedures or relief this Court deems necessary and appropriate to determine what the result would have been absent Daniel J. Sullivan’s inclusion on the ballot.”

That second request for relief reads as if it is missing a word at the beginning. If so, then based on the rest of the complaint, the word “Enjoin” would seem to fit well. As in: Enjoin defendants from certifying … (I asked the DOJ press office whether a word is missing there, and if so, what that word is, but I did not immediately hear back.)

Whatever’s happening with that line, the government’s opponents are reading the complaint as seeking to block certification. Peltola’s campaign committee and the Democratic Senatorial Campaign Committee, which are attempting to join in the case to get it dismissed, said in a Sunday filing that the “DOJ seeks an unprecedented order precluding certification of the U.S. Senate election if the candidate the President favors loses narrowly.”

Calling the government’s claims “utterly without legal basis,” they said the Alaska district court “should not allow this lawsuit to hang like the Sword of Damocles over the ongoing election, lending false legitimacy to the President’s and the Attorney General’s ongoing efforts to spread false narratives about Alaska’s elections as voting continues and as results begin to be tabulated next week.”

The post Blanche says the DOJ doesn’t want to block Alaska’s election. The DOJ’s lawsuit says otherwise. appeared first on MS NOW.

Welcome back, Deadline: Legal newsletter readers. Supreme Court justices were off the bench this week because they’re in between their October and November hearing sessions. But they still made plenty of news, in both their written work and public comments.

They started by adding two potent cases to a docket that is growing this term in both size and importance. Following last week’s agreement to review a discovery dispute over Elon Musk’s purported government efficiency effort, on Monday the court added two more appeals: on race in middle school admissions and congressional authority to ban home distilling. The court will keep adding cases throughout the year, with all the rulings in argued cases typically coming by July.

Justices Sonia Sotomayor and Neil Gorsuch were together again, speaking out for the second week in a row about a case the court refused to hear. Last week, Gorsuch joined Sotomayor to lament what they saw as unjust prosecution. This week, the Trump appointee joined the Obama appointee to critique what they saw as constitutional problems with car seizures in Chicago. It’s not new for this duo to team up in a certain type of case that lends itself to bipartisan agreement, but they have been ramping up that agreement so far this term.

Sotomayor’s statement appeared on the order list, which, as regular readers know, is an important document that announces the latest actions on pending petitions. That’s where we learned about the two new cases that the court took up and the (much longer) list of cases the court rejected. It takes four justices on the nine-member bench to grant review, and the court denies most petitions.

But Sotomayor’s statement reminds us that the justices occasionally offer their thoughts even when, as here, they agree with the denial but still find it important to highlight broader issues. These writings help us understand the justices’ priorities and what new cases the court might take up in the future.

Another sort of signal came from Justice Samuel Alito, who didn’t explain himself but noted that he wanted to review one of the petitions the court denied on the list. The failed petition came from Missouri officials who wanted the court to revive a rule that registered sex offenders must put signs on their doors for Halloween that read, “No candy or treats at this residence.” An appeals court said the rule wrongly compelled speech under the First Amendment. Although Alito merely noted, without explanation, his difference of opinion, the vote fits with his overall approach, because he generally backs law enforcement and has split from his colleagues in other First Amendment disputes.

Alito had company later in the week when the court rejected the Trump administration’s request to immediately enforce its preferred policy on gender-affirming care in prison. The justices did not explain the rare (albeit temporary) win for transgender people at a court that has ruled against them in a series of other cases. But whatever the justices were thinking, we know it wasn’t unanimous, because Alito and Justice Clarence Thomas both indicated (also without explanation) that they wanted to grant the government’s request.

Justice Elena Kagan made news outside her written work, with an appearance at a law school in Washington, D.C., the sort of speaking engagement that the justices will do from time to time. Kagan, who was dean of Harvard Law School before she became a justice, gave her GOP-appointed colleagues a failing grade when it comes to democracy. Reprising impassioned criticisms of rulings on voting and campaign finance that she has made in dissenting opinions, the Obama appointee said the court “has kind of blinded itself to the very deleterious effect of their rulings on how the political system works and has created a democracy that does not work as well as it should.”

Kagan apparently agreed with her colleagues this week in an election case, when the Supreme Court granted a Republican-backed request from New Hampshire to block the use of student IDs for voting in the midterms. In a brief unsigned order, the high court chided a lower court judge for, as the justices saw it, improperly interfering with state rules right before an election. Justice Ketanji Brown Jackson was the only one to publish a dissent, in which she contended the judge was justified in trying to protect voting rights.

The justices are still off the bench for another week, as they are set to return to the courtroom in November to hear the next batch of regularly scheduled arguments. But as Election Day approaches on Nov. 3, they will continue to field unscheduled emergency applications on voting and whatever else comes their way.

Subscribe to the Deadline: Legal newsletter for expert analysis on the top legal stories of the week, including updates from the Supreme Court and developments in the Trump administration’s legal cases.

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My answer to last week’s “Ask Jordan” question about the (lack of) congressional power over pardons generated follow-up questions. On top of this week’s question about presidential immunity, I’m answering two of them briefly below for this special mailbag edition.

As always, submit your questions on this topic and any others through this form.

“So. … If Congress impeaches Defense Secretary Pete Hegseth, Donald Trump cannot pardon him? REALLY?!” — Joyce Carpenter

Hi Joyce,

Trump could pardon Hegseth (or anyone else) for any federal crimes, which would save him from prosecution. But the president couldn’t use the pardon power to save Hegseth (or anyone else) from impeachment proceedings. That’s because the Constitution says presidents can issue pardons for “Offences against the United States” but not for “Cases of Impeachment.”

“I’m disappointed in your answer about pardons. Why didn’t you mention that the pardoned person IS considered guilty of whatever the pardon is for. Or do I have that wrong?” — Richard

Hi Richard,

You have that wrong — or, at least, not necessarily right in all cases.

To be sure, the Supreme Court said in an oft-cited 1915 case that a pardon “carries an imputation of guilt and acceptance of a confession of it.” But that was more of a statement made in passing than an announcement of a binding rule going forward.

As a federal appeals court pointed out more recently, “not every acceptance of a pardon constitutes a confession of guilt.” For example, the appeals court noted that presidents can pardon people they think are innocent. They can even grant posthumous pardons, which led the court to observe that “a deceased individual cannot confess his guilt.”

Please submit “Ask Jordan” questions through this form for a chance to have your question featured in a future edition of the Deadline: Legal newsletter.

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“If Donald Trump defies court orders because the Supreme Court said he cannot be prosecuted for actions he takes as president, could those people who carry out his illegal requests be prosecuted or fined even though they are acting on his orders?” — Kit Read

Hi Kit,

Maybe.

The Supreme Court’s 2024 ruling in Trump v. United States only dealt directly with criminal immunity for presidents, holding that they have at least presumptive immunity for all official acts, as well as absolute immunity for acts within their “conclusive and preclusive” constitutional authority.

What all that means in practice hasn’t been fully fleshed out. It would take a follow-up case to clarify the ruling’s limits, and it’s unclear if or when such a case will come.

At any rate, the court focused on presidents in that ruling. It did not grant immunity to aides acting on the president’s behalf.

Yet, while arguments have been made against subordinate immunity, it’s technically an open question that the justices haven’t decided one way or the other.

So the answer to your question at the moment is: maybe.

But you might wonder: What could the argument be for immunizing presidential underlings?

One scholarly account argued that the logic of the immunity ruling “renders the President’s subordinates absolutely immune for a potentially broad range of official acts, even if those acts are otherwise unlawful.” That’s because if the president has complete power over executing the law, then, the argument goes, subordinate actions that implement that power are lawful, as opposed to being unlawful but immune from prosecution.

As with clarifying the immunity ruling’s limits as it applies to presidents, whether the Supreme Court will decide the subordinate immunity question depends on the court taking an appeal that raises that issue in the future. And as with presidential immunity itself, there is no clear candidate for an appeal the court would take to answer that question.

Either way, if a president wants to ensure that any of his henchmen won’t be federally prosecuted, he could always pardon them.

Please submit “Ask Jordan” questions through this form for a chance to have your question featured in a future edition of the Deadline: Legal newsletter.

The post Ask Jordan: Does presidential immunity extend to subordinates who carry out illegal orders? appeared first on MS NOW.

A nearly unanimous Supreme Court has granted New Hampshire’s emergency request to block the use of student IDs for voting in the November midterm elections.

The case raised a recurring theme at the high court about the propriety of judges intervening on the eve of political contests, against the familiar backdrop of GOP-backed voting restrictions purporting to ensure election integrity.

On Thursday, the majority said that the district court judge who ruled against the state failed to justify deviating from the general principle that federal courts shouldn’t alter election rules on the eve of an election. Justice Ketanji Brown Jackson dissented, writing she “would not disturb a clearly justifiable federal-court order issued to ensure that the public receives accurate information about a State’s electoral processes.”

The Biden-appointed justice said she wasn’t as sure as the majority that the judge’s action falls under that general noninterference rule, known as the “Purcell principle.” She said the judge was trying to address alleged misinformation rather than change state law.

“When a federal court determines that material misrepresentations are being made about a State’s election rules, an injunction to prohibit that conduct does not contribute to public confusion, it prevents that very problem,” Jackson wrote in her solo dissent.

While New Hampshire’s federal representatives are Democrats, Republicans run the state government. Gov. Kelly Ayotte signed a bill into law this year that prohibits the use of student IDs for voting.

A New Hampshire-based nonprofit called Coalition for Open Democracy sued the state over the law, which the group said needlessly burdens young voters under the guise of trying to solve the “non-existent problem” of nonresident voter fraud.

In a ruling earlier this month, U.S. District Judge Joseph Laplante refused to block the law, called HB 323. But the George W. Bush appointee said related guidance from New Hampshire Secretary of State David Scanlan, a Republican, went too far. Laplante said Scanlan overstepped in barring election officials from considering student IDs even as evidence under a “safety-valve provision” that lets voters prove who they are if they don’t otherwise have a proper photograph.

“The State has offered no independent justification for that broader prohibition,” wrote Laplante, explaining that such justification is needed even for minimal burdens on voting rights. He blocked enforcement of Scanlan’s directive to the extent it “prohibits or discourages election officials from considering student IDs as evidence of voter identity,” and he ordered the secretary of state to issue revised guidance for the midterms.

Laplante declined to halt his ruling, as did an appellate panel over dissent from a Trump-appointed judge. State officials then turned to the justices in Washington, arguing that Laplante’s order risks late-breaking confusion. The Republican National Committee filed an amicus brief supporting the state.

Opposing the state’s emergency application, Open Democracy said granting the application would be the chaos-inducing move. The group noted that Scanlan had already quickly complied with the order to provide revised guidance, and that his website “has told voters since the October 2 Order that supervisors may consider a student ID along with other evidence.”

That guidance is now the status quo, Open Democracy observed. Therefore, it said, granting the state’s application would “reverse the rules for a second time in a month.”

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