Brett Kavanaugh Questions Lawyer on Legal Tense and Donor Disclosure

Legal Tense and Donor Standing

• ⚖️ Brett Kavanaugh questioned a lawyer regarding the tense of verbs used in legal arguments about donor disclosure.
• 💡 The core issue revolves around whether allegations of harm, specifically donor 'chill,' are sufficiently established by past-tense statements versus future-tense predictions.
• 📌 The court is examining if a backward-looking statement like "each of us would have been less likely to donate" constitutes a valid claim of harm for standing purposes.

Establishing Donor Chill

• 🎯 The argument presented is that a backward-looking allegation of harm is insufficient for establishing standing.
• 🔍 Kavanaugh pressed the lawyer on what would be required to demonstrate 'chill,' suggesting a need for allegations tied to the issuance of a subpoena.
• ⚠️ The discussion highlights the importance of alleging that donors would be chilled by the issuance of a subpoena itself, not just the potential for future disclosure.

Subpoena Tense and Disclosure

• 🗣️ The lawyer argued that even if the tense were corrected to future, such as "if this information is disclosed, we will not donate," it might still not be enough.
• 🔑 This is because the identified harms need to be tethered to the subpoena itself, not just the possibility of disclosure.
• 🧐 The conversation touches upon whether standing can be based on the issuance of a subpoena from the moment of its receipt, and if such harms must be objectively reasonable.

Self-Executing vs. Non-Self-Executing Subpoenas

• 📈 The debate extends to whether non-self-executing subpoenas can ever be sufficient to establish the threat of 'chill.'
• ❓ Kavanaugh explored a hypothetical where a donor states they would not contribute due to the possibility of a subpoena being executed by a court, questioning if this would be sufficient.
• ✅ The lawyer's position implies that alleging chill harms from the moment of the subpoena's issuance is a critical, yet potentially unmet, requirement in this case.