Notice & Comment

D. C. Circuit Review: Reviewed – “ ‘Twas the [week] before Christmas . . . .”

With apologies for allowing family celebrations to interfere with timely reporting, here is a brief review of the three decisions handed down by the D. C. Circuit last week. (If you were looking for such reporting last weekend, you are working too hard!)

In United States v. Trump, No. 23-3190, Judge Millett, joined by Judges Pillard and Garcia, upheld in part and overturned in part the district court’s order prohibiting former president Trump’s verbal assault on people connected to his upcoming trial on charges that he unlawfully conspired to overturn the results of the 2020 presidential election. In a 65-page opinion, the panel engaged in a context-specific analysis that weighed the former president’s right to free speech, particularly in the context of the 2024 election, against the need for the district court to conduct a criminal trial in an orderly and fair manner. The court limited the reach of the order’s prohibitions to statements pertaining to a person’s participation in the investigation or the trial and added a mens rea requirement for certain types of statements.

In District of Columbia v. Exxon Mobil Corp., No. 22-7163, Judge Rao, joined by Judges Katsas and Pan, affirmed the decision of the district court to remand to the Superior Court of the District of Columbia a suit brought by the District asserting that various oil and gas companies violated D. C.’s Consumer Protection Procedures Act, which prohibits “unfair and deceptive trade practices,” by “deceiv[ing] consumers about the causal link between fossil fuel usage and climate change.” The panel held that the District’s complaint did not state a federal cause of action and rejected the companies’ arguments that “federal jurisdiction is appropriate because:  (i) the District’s suit arises under federal common law; (ii) the District’s suit raises disputed and substantial federal questions, so it may be removed under Grable & Sons Metal Products, Inc. v. Darue Engineering & Manufacturing, 545 U.S. 308 (2005); (iii) the federal officer removal statute applies; and (iv) removal is proper pursuant to the Outer Continental Shelf Lands Act.”

In 2008, Khan Mohammed was convicted of international drug trafficking and narcoterrorism. After two previous appeals to the D. C. Circuit based on ineffective assistance of counsel, the district court vacated Mohammed’s conviction for narcoterrorism but affirmed his conviction for international drug trafficking. In United States v. Mohammed, No. 22-3072, Mohammed’s third trip to the D. C. Circuit, the court, in an opinion written by Judge Henderson and joined by Chief Judge Srinivasan and Senior Judge Rogers, affirmed the district court’s use of the terrorism enhancement under the Sentencing Guidelines to impose a life sentence for his trafficking conviction.

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