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Read the ruling
Case: 25-2635 Document: 81
Page: 16
Date Filed: 12/01/2025
thereafter leaving (a)(2) and (a)(3) as the only means of selecting a different acting officer. First, § 3345(a) uses present-tense verbs (“dies, resigns, or is otherwise unable to perform”) indicating a single, immediate occurrence, as opposed to, for example, the present perfect tense (has died, has resigned), which could indicate past actions with continued relevance. Hewitt v. United States, 606 U.S. 419, 427–28 (2025). Further, to the extent the Government relies on the phrase “is otherwise unable to perform” (in contrast to “dies” or “resigns”) to demonstrate that § 3345(a) refers to a continuing state, Gov. Br. at 19, such an argument fails. Here, the residual “otherwise” provision is limited by the list of specific examples that precede it. Like “dies” and “resigns,” “otherwise unable to perform” must be read to refer to a single instance. Fischer, 603 U.S. at 489–90. (holding that the “otherwise” clause in 18 U.S.C. § 1512(c)(2) is limited by preceding examples in (c)(1)).
The Girauds cogently respond that the statute’s use of the definite article “the” in reference to “the first assistant,” rather than “a” first assistant, “clearly refers to the deputy already in place at the time the vacancy arises.” Giraud Br. 15. According to the Girauds, this interpretation of (a)(1) avoids “the elaborate safeguards in subsections (a)(2), (a)(3), and (b)(1) collaps[ing] into irrelevance.” Id. at 18. Pina’s argument is similarly apt: he points out that the FVRA repeatedly makes expressly clear that “the President (and only the President)” may select the acting officer and that the Government’s approach would violate that language by giving the Attorney General broad discretion under the FVRA to appoint acting PAS officers by designating them first assistants. Pina Br. 27– 28; see also 5 U.S.C. § 3345(a)(2), (a)(3), (c)(1).
Indeed, the upshot of the Government’s argument is that, while subsections (a)(2) and (a)(3) narrowly constrain
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Clarence B. Jones, Who Helped Shape ‘I Have a Dream’ Speech, Dies at 95
Clarence B. Jones, a confidant, lawyer and speechwriter for the Rev. Dr. Martin Luther King Jr. during the civil rights struggles of the 1960s, who helped plan the March on Washington and drafted part of Dr. King’s celebrated “I Have a Dream” speech, died on Friday in Cupertino, Calif. He was 95.
His death, at an assisted-living facility, was confirmed by his son, Clarence Jr.
A brilliant organizer and a member of Dr. King’s inner circle, Mr. Jones planned protest campaigns; raised funds for Dr. King’s Southern Christian Leadership Conference; and coordinated legal strategies to challenge discriminatory laws, defend arrested demonstrators and fight lawsuits against their leaders.
He was one of the lawyers who represented four Black ministers in a seminal case of libel law, The New York Times v. Sullivan, in which the United States Supreme Court held that a public official could not win damages for criticism of his official performance without proving that published statements were made with deliberate malice. It was a landmark victory for the constitutional guarantee of freedom of the press, and cleared the way for reporting on widespread disorder and civil rights infringements in the South without fear of libel actions.
It was also a clarifying victory for civil rights leaders. “We regarded the suit as an effort to politically discredit the leadership of the direct action civil rights movement of Dr. King,” Mr. Jones told law students at the University of San Francisco in 2012. “The political objective of the lawsuit was to bankrupt and decapitate the civil rights leadership.”
The many-sided Mr. Jones was at various times a California entertainment lawyer, the first Black partner in a Wall Street brokerage on the New York Stock Exchange, the principal owner and publisher of The New York Amsterdam News, a co-owner of the radio station WLIB-AM in Harlem, a university professor and the author of books on civil rights.
He also investigated the bloodiest prison uprising in the nation’s history — the 1971 inmate revolt at Attica, N.Y., which was crushed by National Guard troops and state police officers on Gov. Nelson A. Rockefeller’s orders. As Mr. Jones and Representative Herman Badillo later said in sworn statements, they were unable to persuade the governor of alternatives to retaking the prison, in an assault that led to the deaths of 29 prisoners and 10 hostages and years of lawsuits and recriminations over responsibility for what a court called an “orgy of violence.”
Mr. Jones was often an unseen hand behind historic events. In 1963, he helped plan demonstrations in racially-segregated Birmingham, Ala., that exposed to a shocked nation the brutality of authorities who turned high-pressure fire hoses and snarling dogs on hundreds of children and adult protesters, many of whom, including Dr. King, were hauled off to overflowing city jails.
Later, when Dr. King wrote his classic statement on racism, the “Letter From Birmingham Jail,” it was Mr. Jones who smuggled it out — a “manuscript” scribbled first on scraps of paper and in the margins of newspapers, and later on Mr. Jones’s notepads. The bits and pieces were assembled and edited for publication by the Rev. Wyatt Tee Walker.
That summer, Dr. King, Mr. Jones and others — including Roy Wilkins, James Farmer, John Lewis and the political strategist Stanley Levison — met often at Mr. Jones’s apartment in the Riverdale neighborhood of the Bronx to plan the March on Washington for Jobs and Freedom and discuss ideas for the speech Dr. King would deliver at the Lincoln Memorial.
There were several versions, written at different times, of what became the “I Have a Dream” speech. Dr. King wrote a final draft with Mr. Jones and Mr. Levison. They called it “Normalcy — Never Again.” There was no reference to a dream and little of the stirring rhetoric for which Dr. King is remembered.
“The logistical preparations for the march were so burdensome that the speech was not a priority for us,” Mr. Jones recalled in a memoir, “Behind the Dream: The Making of the Speech That Transformed a Nation” (2011, with Stuart Connelly).
On Aug. 28, 1963, 250,000 people crowded onto the National Mall. The day was a show of support for civil rights legislation proposed by President John F. Kennedy, and the speakers had agreed to avoid incendiary remarks that might derail it.
Dr. King’s speech began quietly, with an analogy about America defaulting on a promissory note to its minority citizens, and Mr. Jones, standing nearby, recognized it as one of his contributions. Then, partway into the speech, the gospel singer Mahalia Jackson shouted, “Tell ’em about the dream, Martin.”
Dr. King paused. “Martin clutched the speaker’s lectern and seemed to reset,” Mr. Jones recalled. Then Dr. King put his text aside, dropped his assessment of current injustices and launched into a soaring, improvised peroration on his vision of America as a land of freedom and equality rising from slavery and hatreds.
“I have a dream,” he declared, “that one day this nation will rise up and live out the true meaning of its creed: ‘We hold these truths to be self-evident, that all men are created equal.’ I have a dream that one day on the red hills of Georgia the sons of former slaves and former slave owners will be able to sit down together at the table of brotherhood.”
“I have a dream,” he continued, “that my four little children will one day live in a nation where they will not be judged by the color of their skin but by the content of their character. I have a dream today.”
Mr. Jones later obtained, and signed over to Dr. King, the registered copyright for one of the most heralded speeches of the century.
Clarence Benjamin Jones was born in Philadelphia on Jan. 8, 1931, to Goldsborough and Mary (Toliver) Jones. His father was a gardener and chauffeur, and his mother was a maid.
To give him a better life, his parents placed him in a foster home in Palmyra, N.J., when he was 6. He attended a boarding school in Cornwells Heights, Pa., and graduated from Palmyra High School in 1949, and from Columbia University in 1953. The Dr. Clarence B. Jones Institute for Social Advocacy was dedicated in his honor in 2017 at Palmyra High School.
Drafted by the Army, he refused to sign a loyalty oath, spent 21 months at Fort Dix, N.J., and received an “undesirable” discharge in 1955. But he sued and won an honorable discharge.
In 1956, he married Anne Norton, whose parents had founded the book publisher W.W. Norton & Company. They had four children, Christine, Alexia, Clarence Jr. (known as Ben) and Dana, and divorced in 1970. Anne Jones died in 1977.
A 1976 marriage to Charlotte Schiff ended in divorce in 1984. In 1990, he married Jennifer Poznanski; they had one daughter, Felicia, and were divorced in 2000. He is survived by his five children and his longtime partner, Lin Walters.
He received a law degree from Boston University in 1959, moved to Altadena, Calif., and practiced entertainment law. In 1960 he helped defend Dr. King in an Alabama tax perjury case, returned to New York and became a fund-raiser and lawyer for Dr. King and the Southern Christian Leadership Conference.
His most notable case was the libel suit that arose after The Times published an advertisement in 1960 soliciting funds for Dr. King’s defense in the tax perjury case. Dr. King was cleared, but the suit continued. The ad cited racial conditions in the South. While it named no public officials, L.B. Sullivan, a public safety commissioner in Montgomery, Ala., accused The Times and four Black ministers who had signed the ad of defaming him. Many lawyers worked on the case, and Mr. Jones joined the ministers’ defense team.
After an Alabama jury awarded Mr. Sullivan $500,000, The Times and the ministers — the Revs. Ralph Abernathy, Fred Shuttlesworth, S.S. Seay Sr. and Joseph E. Lowery — appealed, and the Supreme Court held in 1964 that public officials must prove “actual malice,” showing that a publisher knew a statement was false or acted in reckless disregard of its truth or falsity. The ruling undercut some $300 million in libel actions pending in the South against news organizations.
In 1967, Mr. Jones became a vice president of the Carter, Berlind & Weill brokerage and the first Black partner of a stock exchange member. After Dr. King’s assassination in 1968, he turned increasingly to business. In 1971, he and Percy E. Sutton, the Manhattan borough president, led Black groups that bought The New York Amsterdam News, the nation’s largest Black community-based newspaper, and WLIB, which served largely Black audiences. Mr. Jones was the newspaper’s publisher for three years.
When inmates seized hostages and cellblocks in the state prison at Attica in 1971, Governor Rockefeller named Mr. Jones and Mr. Badillo as on-the-scene observers. But both took on larger roles during and after the crisis. They tried unsuccessfully to dissuade Mr. Rockefeller from ordering the assault that retook the prison. Mr. Jones, later appointed chairman of an investigative panel to protect the inmates’ constitutional rights, quoted witnesses as saying that some were beaten and others killed while trying to surrender.
In sworn statements in 1989 in support of an Attica prisoners’ lawsuit, Mr. Jones and Mr. Badillo said that the governor, who spoke to them by phone, had been indifferent to their warnings of likely mass killings if the police moved in, to alternatives they suggested to retaking the prison by force, and even to the fate of the inmates and hostages.
The governor, Mr. Jones said, “clearly accepted the inevitability of a massacre.” A federal appeals court dismissed the prisoners’ suit against the Rockefeller estate, saying the governor’s actions were not unlawful. But the state later paid millions to settle damage claims by inmates and their families.
Mr. Jones wrote “What Would Martin Say?” (2008, with Joel Engel), and “Uprising: Understanding Attica, Revolution and the Incarceration State” (2011, with Stuart Connelly).
In recent years, Mr. Jones had lectured widely, taught at the University of San Francisco and was a resident scholar at Stanford University in Palo Alto. In 2018, Mr. Jones and Jonathan D. Greenberg co-founded the Institute for Nonviolence and Social Justice at the University of San Francisco to foster the teachings of Dr. King and Mohandas K. Gandhi. In 2024, he was awarded the Presidential Medal of Freedom, the nation’s highest civilian honor, by President Joseph R. Biden Jr.
In an interview with The Free Press that year, Mr. Jones recalled telling Dr. King about what made him a talented speechwriter.
“I hear your voice in my head,” Mr. Jones said. “I hear your voice in perfect pitch.”
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‘My body carried me,’ Elizabeth Smart says. Now she’s celebrating it
Elizabeth Smart says she has gained confidence as a competitive bodybuilder. She continues to be an advocate for women and victims of sexual violence after she was kidnapped when she was 14.
Kim Raff for NPR
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Kim Raff for NPR
The first time Elizabeth Smart stepped on stage at a bodybuilding competition, she was terrified.
She says her smile froze. Her hands shook. Every movement had been choreographed and practiced over and over again, down to the turns and poses she would hit beneath the bright stage lights.
But there was only so much she could do to prepare for the pageantry. Unlike in training, she was wearing oversized costume jewelry, including a large ring. The blonde hair extensions were new, too.
Then, as she flipped her hair over her shoulder, the ring snagged one of the extensions.
“I just ended up ripping through the extension and just taking out a chunk of my hair, and then turning around and smiling,” she says, laughing about it now.
At the time, she says, she wanted to run offstage.
Instead, she kept posing in towering heels as the judges rated the body she’d spent years trying to survive inside.
Smart lift weights in her home gym with bodybuilding coach and friend, Robyn Maher.
Kim Raff for NPR
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Kim Raff for NPR
For Smart, bodybuilding isn’t about the trophies. Yet, four competitions and several medals in, she’s earned something she never expected: confidence in her body.
“I’m at a point in my life where I want to celebrate it,” Smart says, “I don’t want to carry shame about my body.”
A traumatic detour
In 2002, Smart was just 14 years old when a self-proclaimed prophet abducted her at knifepoint from her Salt Lake City bedroom while she slept beside her younger sister.
Volunteers head out to search for Elizabeth Smart in Salt Lake City a few days after she was kidnapped in 2002.
Douglas C. Pizac/AP
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Douglas C. Pizac/AP
For months, the world watched the search for her unfold. Her face was plastered across television screens and the front pages of newspapers. All the while, she was living in the woods just miles from her home.
Now, at 38, Smart remembers the ways she tried to survive the nine months she was held captive and repeatedly sexually assaulted. She endured frequent humiliation and psychological manipulation.
Smart attends a White House ceremony in 2003, after then-President George W. Bush signed into law the Amber Alert package which would create a system to help find kidnapped children.
Alex Wong/Getty Images/Getty Images North America
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Alex Wong/Getty Images/Getty Images North America
In her latest book, Detours, Smart describes trauma as a detour — a path you never planned for and never wanted. She’s says she survived captivity in part by holding onto small memories and moments that reminded her that her life existed outside those woods.
“My body was hurt, and it had felt like it had been crushed,” she says. “But it carried me through.”
Disconnecting from the body
That kind of positive relationship with the body after trauma can take years — and sometimes decades — for survivors to develop, says Robyn Brickel, a licensed therapist in Virginia who specializes in trauma-related disorders.
“When early childhood trauma happens, especially sexual trauma, people disconnect from their bodies because it’s unsafe,” Brickel says. “That’s how they survive.”
During the abuse, some victims mentally leave their bodies, focusing instead on small details in the room, she says.
“Lots of trauma survivors will tell you, ‘I know exactly how many light bulbs there were in the chandelier,’ how many cracks were in the ceiling, the pattern on the wallpaper” while the abuse was occurring, she says. “Because that’s where they are.”
She says the body becomes something to escape rather than inhabit. For many survivors, that disconnection doesn’t disappear once the abuse ends.
Brickel says survivors often struggle with feeling shame, confusion and betrayal connected to the body.
“Lots of survivors believe their bodies betrayed them,” she says.
Smart says she understands that feeling.
Raised in a conservative Mormon home, where modesty and purity were heavily emphasized, Smart says she struggled with profound shame after the abuse. She spent much of her time playing the harp, avoided boys and had few close friends.
For years, after she was back home, she says she felt pressure to become what she describes as “the most innocent of victims,” she says. “I had to always do the right thing, always say the right thing.”
By the time she was rescued in 2003, nine months after she was kidnapped, millions of people already knew her name and face. Unlike many survivors, Smart had to heal while in the public eye.
Smart trains five or six days a week, usually 45 minutes at a time.
Kim Raff for NPR
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Kim Raff for NPR
Today, Smart says, she sees herself differently.
“I can be an advocate for women and children,” Smart says. “But I also can step on stage in a bikini and strut around and strike a pose. And that’s OK.”
To Brickel, that shift — from invisibility to visibility — is significant.
“Trauma survivors will [often] make themselves as unattractive as possible to not get attention,” she says. “They want to disappear. Be invisible.”
Smart competes in the Wasatch Warrior bodybuilding competition in Salt Lake City, Utah.
Mitchell Gilbert
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Mitchell Gilbert
‘There’s no finish line’
Smart says her relationship with exercise has changed dramatically over the years.
After she was rescued, she says she occasionally ran but didn’t stick with it. She eventually became a marathon runner, though recurring knee pain forced her to stop.
“I always need a goal and I need a deadline,” she says.
Bodybuilding offered both. So, she started strength training about a year and a half ago.
Now she trains at least five days a week, for about 45 minutes at a time. She tracks her meals carefully, counts macros and walks roughly 10,000 steps a day, often on an incline treadmill.
Mounting research shows weight lifting may help some trauma survivors reconnect with their bodies in healthy ways. According to a study published last year in Frontiers in Psychology, resistance training was linked to reduced post-traumatic stress disorder symptoms and improved emotional well-being. And a 2023 study published in the same journal found that many trauma survivors described weight lifting as empowering — saying it helped them rebuild confidence, regain a sense of control and feel safer in their own bodies again.
Still, Brickel says physical training and trauma recovery don’t always intersect in healthy ways. For some survivors, exercise becomes another form of disconnecting rather than healing — similar to how some use drugs, self-harm, eating disorders or overworking as a way to outrun emotional pain.
The difference, Brickel says, often comes down to intention and emotional awareness.
“Can I think and feel at the same time?” she says. “Am I running from something, or am I adding to my life?”
That question sits quietly beneath much of what Smart describes. She talks less about perfection than presence. Less about punishment than appreciation.
One of her favorite book passages comes from Charlotte Brontë’s 1847 novel Jane Eyre. Smart describes Mr. Rochester telling Jane he could crush the cage around a bird, but never destroy the bird itself.
Smart says that metaphor stayed with her.
Though her body felt broken, she says, “it never let my soul be destroyed. It carried me through my kidnapping. It gave me three beautiful children.”
Then she says something that still surprises her: “My body is incredible.”
For Brickel, positive statements like that can represent years of emotional work. “We work on that in therapy all the time,” she says.
But she also notes that healing is rarely linear. Some survivors speak about their trauma right away. Others wait decades. Some never talk about it at all.
“There’s no finish line,” Smart says. “I hope I never stop progressing.”
Smart is considering another bodybuilding competition later this year.
Kim Raff for NPR
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Kim Raff for NPR
These days, Smart says she’s seriously considering another bodybuilding competition later this year in Nashville — an all-female event that recognizes women who have survived trauma.
Her face lights up as she talks about it.
Not because she believes trauma disappears, but because she no longer wants survival to be the only lens through which she sees herself.
“We can be lots of things,” she says.
When she doesn’t feel like walking outside during training season, Smart climbs onto her treadmill and watches The Great British Bake Off while dreaming of sweets.
“I want that,” she says, laughing. “I am adding that to my post-show treat list.”
“And I want the whole thing,” she adds. “Not just a slice.”
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Amid Iran War, Remembering the Losses From Another Middle East Conflict
Over the past several days, as clouds darkened the sky over Arlington National Cemetery, familiar scenes played out: school children on field trips, tourists on guided tours and veterans wearing jackets and caps adorned with unit patches, walking in loose formations to visit military brethren lost in combat.
There have been at least 13 service members lost in the current conflict with Iran and it is unknown how many more may join the roll of the honored dead if a fragile cease-fire and potential peace deal fail.
The unknown dead of this and future wars has manifested at the cemetery, where an expansion is underway along the southern reaches of the grounds, adjacent to Section 60.
Far from the ceremonies of Memorial Day, Section 60 is where those lost in the Iraq and Afghanistan wars rest. The thousands of people who visit know the risks being faced by today’s military families through the loss they endured decades ago from another Middle East conflict.
A Son Lost to Iraq
Long before her son’s ashes were interred in Section 60, Sarah Vaughan thought of Memorial Day as just another three-day weekend, a calendar invite to head to the beach in the Tallahassee area where she grew up.
“Memorial Day was just a holiday. I knew the meaning of it, but I didn’t pay any attention to it,” Ms. Vaughan, 72, said in an interview from her Vail, Colo. home.
“But, boy, do I now,” she said.
Looking back, she said she realized that her son John S. Vaughan seemed destined for a military career. She remembered the schoolboy who sketched American flags into the corners of the school papers and always wore camouflage clothes around his hometown. Even his childhood TV favorites were The History Channel and The Military Channel, she said.
Ms. Vaughan described her son as “straight as an arrow,” doting on his younger sister Becca and looking after his single mother whenever he could. His independent spirit led him to hunt, thread his own lures for fly fishing and to get a pilot’s license.
John Vaughan joined the Reserve Officers’ Training Corps at Embry-Riddle Aeronautical University and after graduation entered the U.S. Army.
By June 2006, he was a 2nd lieutenant deployed to Mosul, Iraq, when a sniper ended his life on patrol at age 23, Ms. Vaughan said.
Now, Ms. Vaughan said, she will visit military cemeteries or memorials when she travels and tries to thank those in uniform for being willing to stand up for American values and freedoms.
“I think about it more than just on Memorial Day. I think about it a lot, and I’m just so proud of the bravery and the camaraderie these people have,” she said.
Ms. Vaughan said she prayed for those who remain in harm’s way and offered a piece of advice to their families.
“Stand up straight,” she said, “and be so proud of what their children are doing.”
Three Children Left Behind
More than 20 years ago, in 2005, Patty Stubenhofer spent Memorial Day searching for answers as she stood in Section 60 holding her three children in front of the grave of their father and her husband, U.S. Army Capt. Mark Stubenhofer.
Military service had been a big part of her upbringing. Her father served in the Navy; her grandfathers were in the Air Force and Navy; and her grandmother joined the Women’s Army Auxiliary Corps.
Yet, she said, she did not fully realize the commitment of military life until she was married, experiencing the months apart because of training or deployments. Mrs. Stubenhofer said she also learned the pride and love of a country born of those sacrifices. Two decades later, she said, it is still hard to put that feeling into words.
Mark Stubenhofer was killed on Dec. 7, 2004, in a firefight in Baghdad, Iraq.
“I am living the military family’s worst nightmare and it doesn’t take a conflict for them to become a surviving family,” she said, referencing training accidents and other non-combat deaths. “There’s nothing I can say that can prepare anyone for this.”
“I spent my first Memorial Day as a military widow holding the hands of our three children,” she said, “searching for the right words to explain the significance of this day.”
Ensuing Memorial Day weekends were not spent at graveside ceremonies, but with other surviving military families at the TAPS Good Grief Camp, she said.
During those weekends, her son and two daughters were paired with a mentor and placed in groups with other children to learn how to process their grief. Now, her children are in their 20s and have become mentors for the program.
“To us now, every day is Memorial Day,” she said. “It’s knowing that he loved us and his country so much that he was willing to stand on the front line and sacrifice his life to protect us and our freedom. ”
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