Wednesday When The News Kept Happening

Today has been one of those blockbuster days where you don't know quite where to look.

For starters, we’re catching up with a decision by the Federal Trade Commission (FTC) that ends the use of noncompete agreements. A noncompete usually takes the form of a clause in a contract or a separate agreement that prohibits a departing employee from taking any job or starting any business that competes with their former employer for a specified period of time after the employment ends. The agreements also prevent the employee from revealing proprietary information or secrets to anyone else at any time.

Their use is widespread, and there is an entire industry of lawyers who specialize in them. So it was a sea change yesterday when the FTC issued a final rule that the agency says will promote competition by banning noncompetes nationwide. The move is billed as one that will protect “the fundamental freedom of workers to change jobs” as well as “increasing innovation, and fostering new business formation.”

This will affect a lot of folks in the workforce. It has the potential to become not just an interesting legal issue but also a campaign one, with the FTC claiming major benefits for the economy as a result. Read their press release on this move here.

Then, there was the Supreme Court, where the Idaho abortion case was argued today. You may recall this situation from August of 2022, when Idaho passed a law criminalizing virtually all abortions, and we first discussed it here on Civil Discourse. DOJ sued the state, making an argument that Idaho, even after Dobbs took away abortion rights and left women at the mercy of state legislatures, couldn’t do this because of an obscure federal provision called the Emergency Medical Treatment and Labor Act (EMTALA). Our original post about this case and the theory behind it is here.

Today’s argument was astutely characterized as “gendered” by Dahlia Lithwick, one of the commentators who noted there seemed to be a split between the views of the four women Justices and the men. Idaho argued that women might be required to lose an organ to save an “unborn child.” The progressive Justices, with the somewhat surprising addition of Justice Amy Coney Barrett, saw flaws in Idaho’s approach.

EMTALA was enacted by Congress in 1986 and requires that hospitals that receive federal funds provide patients with stabilizing care. It was an effort to prevent the practice of “patient dumping” that often left uninsured or low-income people in precarious medical conditions as hospital ERs transferred them to other facilities that would care for them without stabilizing their condition first.

Although this case is limited to Idaho’s near-total abortion ban, the decision will likely have impacts across the country. We will take that up in more detail Friday night when we hear from emergency room physician and all-around good human being Dara Kass, whose commentary you may have seen on television—she recently left the Biden Administration, where she had a position with the Department of Health and Human Services. Dara will help us understand the likely impact of the decision in this case from a medical perspective.

Idaho argued that the Dobbs decision left abortion access entirely up to the states. It accused the Biden administration of upending federal law to turn Idaho emergency rooms into “abortion enclaves in violation of state law.” The state’s law authorizes prison sentences of up to five years and loss of a doctor’s medical license, even if the doctor believes the procedure was necessary under the law’s narrow exception for saving the woman’s life or in cases of rape and incest.

When it comes to this term’s abortion cases, there has always been reason to believe that although the Court probably won’t go so far as to ban medication abortion completely in the mifepristone case, the EMTALA case is likely to go in favor of Idaho. The hope is that the loss in EMTALA will be the narrowest one possible, one that avoids further devastation of women’s access to care and the medical risks we’re now seeing them face. Justice Barrett will play an important role here. Uncertainty will continue until the decision is made and likely after that, as doctors continue to worry about prosecutors second-guessing their treatment decisions. A decision will likely come down late in the Court’s term, which ends the last week of June/first week of July.

This is a real problem in the post-Roe v. Wade environment. So long as there is uncertainty about when doctors can perform an abortion without risk of criminal prosecution, women's health suffers. Uncertainty around care continues to be devastating for women’s health, as we saw last week when a Texas woman miscarried in a restroom toilet in an emergency room lobby while her frantic husband called for help from 911. The front desk staff at Sacred Heart Emergency Center in Houston refused to permit her to check in when she arrived seeking care.

Wednesday night, as the news day was drawing to a close on the East Coast, we learned that Arizona had indicted people involved in the fake elector scheme in that state following the 2020 election. The charge is an Arizona state law conspiracy to overturn the popular vote in that state. Arizona joins Georgia, where Fani Willis notably brought a RICO indictment, and Michigan, where only the in-state electors are indicted, in charging fake electors cases. Two people from Trump’s inner circle who haven’t been indicted before, lawyers Boris Epshteyn and Christina Bobb, are included in the Arizona indictment.

Kenneth Chesebro may be cooperating with prosecutors. He is not charged—but seems to be one of the unindicted co-conspirators in the case. There were earlier reports that he was cooperating with Arizona prosecutors. If that cooperation is fulsome, it could lead to a situation where people he is able to testify against become highly motivated to cooperate as well. But he has been a reluctant and less than cooperative in other situations as NYU Law Professor Ryan Goodman points out.

Trump is an unindicted co-conspirator in the case.

It is unclear whether they decided against charging him because of evidentiary failures, legal issues, or practical considerations at this point. But having additional cooperating witnesses certainly wouldn’t hurt.

Boris Epshteyn has been represented by lawyer Todd Blanche in the past. The Guardian’s Hugo Lowell told me that the relationship is now over, and he expects Epshteyn will find a local Arizona lawyer to represent him.” Epshteyn and Trump’s interests are now at odds in the case because Trump is named as an unindicted co-conspirator in the case. They could have waived the conflict if they both wanted him as their lawyer. We don’t know who initiated the change or why.

Others indicted include Mark Meadows, John Eastman, Rudy Giuliani, Jenna Ellis, and Mike Roman, a now familiar cast of characters, along with a slate of fake electors from Arizona. Some of the names remained redacted, but identities could be discerned from information in the indictment. For instance, one of those individuals was referred to as “the Mayor,” which in context seems to be Giuliani.

Former Obama-era Arizona U.S. Attorney Dennis Burke told me there wasn’t a doubt in his mind that Arizona Attorney General Kris Mayes has a solid, well-considered investigation and indictment because of the high regard the lead prosecutor handling the case is held in. In a public statement, Mayes said, “I will not allow American democracy to be undermined.”

Trump’s spokesperson had this response:

Trump also moved to dismiss two counts in the Georgia indictment today. He argues that the conduct in counts 15 and 27 violates federal law, and charges can only be brought in federal court. You can read his brief here. Trump cites an 1890 case, In re Looney, for the proposition. It’s a novel theory, to say the least.

The heart of Trump’s argument is that: “Using (which necessarily includes filing) false documents in the jurisdiction of the judiciary of the United States is criminalized by a specific federal statute, 18 U.S.C. § 1001(a)(3).2 3 That statute is designed to protect the federal interest against the use of allegedly false documents in connection with the United States judiciary. The alleged conduct which the state is attempting to prosecute in counts 15 and 27 is addressed by the federal false statement statute and thus jurisdiction is exclusively vested in federal court. As such, the state is without jurisdiction or authority to prosecute President Trump when the plain purpose of doing so is to protect the integrity of federal matters.”

Count 15 involves filing the fake elector documents in federal court in Georgia.

Count 27 involves false statements Trump and John Eastman made in a federal challenge they filed to the election.

This deserves some study, but even if there is merit to Trump’s argument—and that’s a big if; the motion has the feel of a Hail Mary—granting it would have no impact on the RICO charge, and the conduct described in counts 15 and 27 could be offered as proof of the RICO charge. To no one’s surprise, this looks more like a delay tactic than anything else. Trump offers only the 1890 case and an even older Georgia case to support his argument, and neither case discusses this statute and this conduct. We’ll look forward to Fani Willis’ response, which is likely to be very dismissive.

We are still waiting on a gag order ruling in Manhattan.

David Pecker resumes his testimony tomorrow in the catch-and-kill to elect Trump case. He is about to the part of his testimony where the effort to suppress Stormy Daniels’ story begins. Pecker has been clear that his role here began as Trump contemplated running for President and that it was designed to make that happen. He did not engage in catch-and-kill for Trump prior to 2015.

Trump has been notably silent about Pecker, perhaps because of the gag order. Pecker has done well on direct examination but the true proof of how good a witness is comes on cross-examination.

Tomorrow the Supreme Court (finally) takes up the presidential immunity appeal. Monday night, when I previewed the Supreme Court immunity argument, I suggested that the best type of hypothetical for the Special Counsel to use would be one that made it clear to the Justices that a president with absolute immunity for any criminal conduct could act against them too. For instance, a president could order Justices he disagreed with arrested and jailed.

This reminds me of another case. In January of 2012 the Supreme Court decided U.S. v. Jones. The issue was whether the government had to get a search warrant before it could use a GPS device to track a vehicle. Prosecutors reasoned that people who drove on public roads lacked the reasonable expectation of privacy in their movements necessary to implicate their rights against search and seizure under the 4th Amendment. That meant prosecutors didn’t need to get a search warrant before planting the device—getting a search warrant involves convincing a federal judge probable cause exists for the search. That had been the practice for years and many prosecutors who had been following the case avidly thought a win for the government was at hand.

The hypothetical came from Chief Justice Roberts, who asked if prosecutors could place a GPS device on the car of one of the Justices without a search warrant under the government’s theory. That brought it home. Sometimes, the personal impact of these cases needs to be brought home to the Justices. The government lost in Jones, with that hypo, which provoked nervous laughter when it was asked, playing no small part in the decision. Prosecutors have had to get a search warrant to use a GPS tracking device ever since.

In my mind, that hypothetical lost the argument for the government or at least put the nail in its coffin. The hypo hit the Court close to home. They could imagine it happening to them in that moment. Sometimes, the Supreme Court needs to be reminded that the cases they are deciding impact real people, and the best way to do that is to make sure they understand the impact their decisions can have on them.

The lawyer in Jones? That was Michael Dreeben, the former Deputy Solicitor General who will be arguing for the Special Counsel tomorrow. I bet he hasn’t forgotten that moment.

If Donald Trump is permitted to have the broad presidential immunity he claims he is entitled to, all of us, even the Justices, and especially our democracy, will suffer.

We’re in this together,

Joyce