Morning Report

September 23, 2025 — Morning Report

Sep 23, 2025

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New York just dropped two of the most serious charges against Luigi Mangione — both terrorism enhancements. The court looked at what "terrorism" actually means under New York law, looked at what Mangione was accused of doing, and said: it doesn't fit. Intent to terrorize has a very specific statutory definition. Drawing public attention to corporate greed is not it. He still faces a plain murder-two charge and a federal case — and the federal case raises a Fifth Amendment question the Supreme Court already addressed in 2019, badly.

The order responded to a defense motion covering several issues. Three procedural hearings were granted: Huntly, Mapp, and Mosley. On the terrorism charges: Mangione had three charges related to the underlying murder — plain M2, M2-terror, and M1-terror. Bryan explained New York's structure: M2-terror elevates to M1 if proved, but "terror" means one of three very specific statutory things — it's not enough that people were scared. The court went through each definition and compared them to the prosecution's theory of the case. Conclusion: Mangione's intent, as alleged, was to draw public attention to the actions of a corporation — not to terrorize people within any of the statutory definitions. Both terror charges dropped; the plain M2 charge survives along with lesser charges. On double jeopardy: Mangione filed a motion to dismiss the state case on Fifth Amendment grounds because he's also being prosecuted by the federal government for the same incident. Bryan walked through Gamble v. US (2019) and the Dual Sovereignty Doctrine: the Fifth Amendment bars being tried twice for the same *offense*, not the same *action*. A state murder charge and a federal murder charge are different offenses created by different sovereigns. Dual sovereignty holds that when you break the laws of two different sovereigns — state and federal — you've committed two separate offenses. The motion was denied. A parallel motion in federal court is also pending. Bryan noted Justice Gorsuch's "scorching dissent" in Gamble and flagged it may have more sympathizers on the current Court.

Criminal procedureFifth Amendment double jeopardy

Constitutional question: The Fifth Amendment's double jeopardy clause is interpreted by the Dual Sovereignty Doctrine as prohibiting re-prosecution for the same offense by the same sovereign, not re-prosecution for the same conduct by different sovereigns. The doctrine has been criticized as an end-run around the amendment's purpose, most forcefully by Gorsuch in dissent. Bryan flagged Gorsuch as a potential wild card if the doctrine comes up again — the ideological coalition against dual sovereignty (Gorsuch + liberal bloc) is unusual and could shift outcomes if the Court's composition aligns the right way.

Slaughter v. Trump · 25-332

The Supreme Court yesterday stayed the lower court order preventing Trump from firing FTC Commissioner Rebecca Slaughter. A lot of people in Bryan's comments said: the Supreme Court just overruled Humphrey's Executor. Bryan says: it did not. A stay is not a ruling. And the difference matters — a lot — depending on what the Court actually says when it gets to the merits.

Bryan walked through the Humphrey's Executor background: a 1935 case holding that Congress could create federal agencies with commissioners who could only be removed for cause, insulating them from presidential whim. The conservative majority has been telegraphing interest in revisiting it. Trump fired Slaughter; the lower court said he couldn't; SCOTUS stayed that order pending appeal. Bryan was careful: the stay means Slaughter is out in the meantime, but it does not mean Humphrey's Executor is overruled. He gave a hypothetical — if you declare victory prematurely and the eventual ruling is narrow, a president could exploit the overreading to fire people he legally can't. On why SCOTUS may have stayed: Bryan guessed the Court weighed the harm to the country if the FTC can't be directed by the president (assuming he's ultimately found to have that power) against the harm to Slaughter personally from losing her job — and decided the scale tipped toward the country-level harm. He acknowledged he was speculating. Kagan and Jackson dissented sharply, which Bryan said was, to his ear, largely about the shadow docket being used for major decisions. SCOTUS has now directed the parties to brief three questions: (1) whether statutory removal protections for FTC commissioners violate separation of powers; (2) if so, whether Humphrey's Executor should be overruled; (3) whether courts can prevent a removal from office through equity or law at all. Bryan noted question 3 felt like it had Barrett's fingerprints. Connected case: Cook v. Trump (Federal Reserve) is in the same doctrinal space but is a separate case with distinct facts.

Removal powerseparation of powersHumphrey's Executor (1935)

Constitutional question: Article II vesting clause and the unitary executive theory: does the president's power to execute the law require unconditional control over all executive officers? The Humphrey's Executor doctrine said no — Congress can create officers with for-cause protection when their quasi-legislative or quasi-judicial functions require independence. Overruling it would shift the constitutional balance toward a version of the presidency where every federal officer serves at will, regardless of congressional design. The shadow docket dimension: this is a major constitutional decision being made without full briefing, without oral argument, and without a majority opinion — Kagan and Jackson's protest is that the Court is reshaping institutional design through procedural orders.

AFL-CIO v. Trump 25-cv-03698 · 25-cv-03698

The AFL-CIO has been trying to challenge the mass federal layoffs — but couldn't build a case without the actual RIF documents. The government claimed privilege: the plans were still being negotiated, turning them over would hurt the process. The Ninth Circuit said that's not what the deliberative process privilege is for. You don't get to hide documents just because you're still deciding things.

Early in this case, plaintiffs couldn't challenge specific agency RIF actions because the government wouldn't produce the RIF documents, asserting the deliberative process privilege — a doctrine protecting internal deliberations from disclosure when they're sufficiently candid or sensitive that premature disclosure would stifle the decision-making process. The government argued the layoff plans were still being negotiated. The Ninth Circuit rejected the privilege claim on Friday: deliberative process protection only applies when the communications are "so hot, so candid, or so personal" that disclosure would genuinely chill honest internal deliberation. No evidence of that standard here. However, the ruling had been stayed by the Supreme Court pending this response. With the Ninth Circuit's ruling out, the case is sent back to the district court, where it may now actually be able to move forward on the merits.

Discoverydeliberative process privilege

Constitutional question: Executive privilege and its limits as applied to large-scale agency personnel actions. The government's use of deliberative process privilege here was essentially an attempt to prevent judicial review of RIFs by hiding the documents that would show what was actually done and why. The constitutional dimension: if agencies can shield mass termination plans from discovery under a broad deliberative privilege claim, courts can't exercise meaningful review of whether those actions complied with statutory civil service protections or APA requirements. The Ninth Circuit's ruling enforces the boundary between legitimate deliberation and evidentiary obstruction.

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