Welcome back, Deadline: Legal Newsletter readers. And thanks to Jessica Levinson for guest writing last week’s recap on Donald Trump’s New York sentencing. This week was packed with legal news ahead of Trump’s inauguration Monday — so let’s jump right in.

TikTok lost its Supreme Court battle against a U.S. ban that’s set to start Sunday, but it still might win the political war. The justices rejected a First Amendment challenge from the popular social media app, citing national security fears of Chinese control. But the app’s fate is unclear as Trump returns to the White House with an apparent openness to keeping TikTok alive. In a video posted to the app after the ruling, TikTok CEO Shou Chew — who’s expected to attend Trump’s inauguration as an honored guest — praised the president-elect for his “commitment to work with us to find a solution that keeps TikTok available in the United States.”

The First Amendment also featured in a SCOTUS hearing this week involving pornography. Texas is defending a state law requiring age verification to access sexual content online, and the adult industry raised a free-speech challenge. One of the more memorable lines from the hearing was Justice Samuel Alito asking how the popular website Pornhub compares to the old Playboy magazine. We expect a ruling by July in the case with vast implications for constitutional rights.

The justices added a new batch of appeals to review, including a case about LGBTQ-themed books. The case brought by a religious rights group asks the court to resolve a contentious question: “Do public schools burden parents’ religious exercise when they compel elementary school children to participate in instruction on gender and sexuality against their parents’ religious convictions and without notice or opportunity to opt out?”

And we finally got to see Jack Smith’s report — the volume on the federal election interference case, anyway. Attorney General Merrick Garland released that part of the special counsel’s report, and one interesting aspect was Smith’s explanation for not alleging insurrection. A conviction under that charge could have disqualified Trump from office. But of course, the Supreme Court’s immunity rulingwhich Smith subtly critiqued in his report, would have blocked a trial on any charges before the election.

Smith’s classified documents volume is still secret. That’s partly because Garland agreed to shelve it while the Justice Department tries to revive charges against former Trump co-defendants Walt Nauta and Carlos De Oliveira. The legal concern is that it could unduly prejudice defendants who might still face a jury trial. Recall that Trump-appointed Judge Aileen Cannon dismissed the documents case last year, and DOJ withdrew its appeal to revive Trump’s charges after the election, due to a federal policy against prosecuting sitting presidents. While public release of the report isn’t imminent, Cannon presided over litigation this week about whether Garland can share it secretly with select members of Congress, a matter that prosecutors argued is none of the judge’s business. Nonetheless, she held a hearing Friday and was reportedly skeptical of DOJ’s urgency to share the report with Congress.

Meanwhile, congressional Democrats urged Garland drop the case against Nauta and De Oliveira,”https://www.BLN.com/deadline-white-house/deadline-legal-blog/jack-smith-report-trump-merrick-garland-legal-war-rcna187946″ target=”_blank”>so that the public can see the full documents report. In the likely event that Garland doesn’t do that, Trump’s DOJ will start off in the awkward position of pressing an appeal that, if successful, would restore charges for the purpose of moving toward a trial that would center on the president’s alleged criminality surrounding national defense information and obstructing justice. (He pleaded not guilty in all four of his criminal cases, with the only one of them that went to trial, in New York state court, resulting in a conviction.)

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So don’t be surprised if the Trump DOJ withdraws the classified documents appeal. Department leadership is set to be stacked with his personal lawyersas attorney general pick Pam Bondi faced questions at her confirmation hearing this week about her independence (or lack thereof) from Trump. Among other things, she had trouble conceding directly that Trump lost the 2020 election. Republicans appear poised to confirm her to the top cop post.

However compliant Trump’s DOJ would be in the Nauta/De Oliveira matter (among others), he could also kill the case himself with pardons. As President Joe Biden this week set a clemency record for nonviolent drug offenders, the pardon gap between Biden and Trump grew starker ahead of Trump’s return. One of the many outstanding clemency questions is what he’ll do with the Jan. 6 cases, in which he has vowed widespread relief.

But how many Jan. 6 defendants (if any) will Trump pardon? And how quickly? We’ll revisit those and other clemency questions as Trump’s second term gets underway, with New York City’s indicted Democratic mayor, Eric Adams, flying to meet Trump in Florida on Friday.

Speaking of Trump and pardonsa huge story in the legal community this week was the indictment of legendary lawyer and SCOTUSblog publisher Tom Goldstein. The federal tax indictment in Maryland tells a cinematic story of the renowned attorney playing high-stakes poker around the globe and failing to pay taxes back home.

And what, you might wonder, does that have to do with Trump and pardons? Back in November — right after Trump’s election win — Goldstein wrote a New York Times op-ed arguing for “abandon[ing]” the president-elect’s criminal cases. I thought it was an odd piece at the time, and I wrote my own response explaining why I thought so. But in retrospect, was the lawyer positioning himself for clemency?

That’s just one data point supporting the possibilitybut here are two more. Goldstein is represented by lawyers who’ve also represented Trump, John Lauro and Christopher Kise (in a statement, they said they’re “deeply disappointed that the government brought these charges in a rush to judgment without understanding all of the important facts. Our client intends to vigorously contest these charges and we expect he will be exonerated at trial”). And finally, there’s the timing of the charges. Is it a coincidence that the indictment came just days before the Trump DOJ takes over? Stay tuned.

Have any questions or comments for me? I’d love to hear from you! Please emaildeadlinelegal@nbcuni.comfor a chance to be featured in a future newsletter.

Jordan Rubin

Jordan Rubin is the Deadline: Legal Blog writer. He was a prosecutor for the New York County District Attorney’s Office in Manhattan and is the author of “Bizarro,” a book about the secret war on synthetic drugs. Before he joined BLN, he was a legal reporter for Bloomberg Law.

South Dakota Gov. Kristi Noem, Donald Trump’s pick to lead the Department of Homeland Security, isn’t too keen on the department’s whole “thwarting foreign manipulation” thing.

At her confirmation hearing Friday, Noem gave her thoughts on the Cybersecurity and Infrastructure Security Agency (CISA), which was formed during the first Trump administration. For background, Trump fired Chris Krebs as CISA director after the 2020 election, following Krebs’ work to debunk Republican lies about voter fraud. The agency has been under fire from Republicans ever since for its work countering mis- and disinformation.

Noem suggested she wants to restrict some of that worksaying the agency has gotten “far off mission” and that its leaders are “using their resources in ways that was never intended.” She said “the misinformation and disinformation that they have stuck their toe into and meddled with should be refocused back onto what their job is,” which Noem said is to “support critical infrastructure” by protecting “small businesses” and utility companies from cyberattacks.

Given that protecting national infrastructure is a major component of the agency’s work, there’s no reason to believe the agency needs to be refocused on the mission. It’s also odd to hear Noem talk about the need to protect Americans’ data from foreign cyberattacks while downplaying the need to combat misinformation in the same breath. Stolen data can be used by foreign actors to target Americans with misinformation and manipulation campaigns. In fact, in 2016, that happened — to Donald Trump’s benefit. And it’s fair to say that’s factored into the GOP’s general aversion to thwarting misinformation over the last several years.In his farewell address, Joe Biden warned about the Big Tech oligarchywhich largely consists of social media owners and executives who are coalescing around Trump. And he warned that they could use misinformation to maintain their power.

As DHS secretary, Noem would be on the front lines of America’s war against misinformation and in a key role to confront those manipulators looking to influence us all. She showed no interest in doing so at her confirmation hearing Friday.

Ya’han Jones

Ja’han Jones is The ReidOut Blog writer. He’s a futurist and multimedia producer focused on culture and politics. His previous projects include “Black Hair Defined” and the “Black Obituary Project.”

It just got harder to find a bathroom in the United States.

Earlier this week, Starbucks announced the company would limit the use of its premises to paying customers only, with the stated goal of improving their stores’ atmospheres. “By setting clear expectations for behavior and uses of our spaces, we can create a better environment for everyone,” a company spokesperson told USA Today.

But that better atmosphere for Starbucks customers will come with a downside for all of us. If you need to use a bathroom when out and about — and all of us do at some point — life just got harder. As a result of the United States’ paucity of public bathrooms, Starbucks facilities had become de facto facilities for all. The story of its bathrooms demonstrates how we fail to invest in our civic infrastructure and instead privatize what are greater social issues and dilemmas — all of us, after all, need to use the bathroom — and the limits of that policy.

According to a study released in 2021, the United States has eight public toilets per 100,000 people.

Starbucks began its open-door policy in 2018 after a Black man who was meeting a business associate for coffee at a Starbucks was denied use of the location’s restroom. An argument between the staff and the men broke out, police were calledand a national scandal ensued. In an effort to quell the furor, the company declared all were welcome.

According to a study released in 2021, the United States has eight public toilets per 100,000 people. To put that number in context, Iceland has 56 and Switzerland 46. But even that nationwide ratio would be welcomed in our nation’s most populous cities. New York City and Los Angeles have four and five public toilets per every 100,000 residents, respectively. (Philadelphia, where that 2018 incident occurred, also has 4.)

“We expect our taxes to pay for street signs and streetlights and benches,” says Lezlie Lowe, author of No Place to Go: How Public Toilets Fail Our Private Needs. “But we’ve become used to going into a coffee shop and buying a muffin we don’t want to buy in order to access the bathroom.”

Until the 1970s, pay toilets in both public and private settings in the United States was more common.  It was understood that the nickel or dime fee would pay for keeping the facilities hygienic. But activists were aghast at the inequity.  Women were more often charged for stall use, while men could frequently use urinals free of charge. It was also a burden on the poor. Eventually, California banned their use (the legislation signed by then-Gov. Ronald Reagan), and the pay toilet fell into disfavor.

It was assumed states and cities would step in and build public facilities. But that never happened, at least in most places. It’s not dissimilar to what happened around the same time when the state residential mental health hospitals were shut down and were supposed to be replaced by community facilities that were never funded in adequate numbers.

The people needing to use the facilities aren’t just people out on a shopping trip. They are Uber drivers, Amazon drivers and those delivering food for apps.

Legislation is regularly introduced in the states and cities to address our public toilet needs, but it frequently languishes. True, there are popular TikToks and Reddit threads devoted to the topic, but who has time for that when in a hurry? Instead, people in need rush into businesses they believe might let them use their restrooms. These can be anything from restaurants to malls to grocery stores. The entire exercise is inherently humiliating. No one wants to beg a store clerk for permission to go to the bathroom, especially if they say no.

This puts a burden on embarrassed and in the extremes individuals, who are frequently left to guess whether the nearby fast-food joint will easily let them into their bathroom or insist they purchase a side of fries or a latte first. And the system is inherently inequitable. It is easier, to use a very personal example, for a middle-aged woman dressed in work clothes to gain access to a midtown Manhattan lobby hotel bathroom (and to possess the cultural knowledge to know it is there and open to the public) than it is for a homeless man, for whom it is all but impossible. And as that Philadelphia incident showed, race matters here, as well.

And the people needing to use the facilities aren’t just people out on a shopping trip. They are Uber drivers, Amazon drivers and those delivering food for apps. They are left to resort to carrying “pee bottles” in their vehicles or begging their customers for a favor.

Toilet access is vital for a full public life. That’s why Starbucks’ open-door policy answered a pressing need. It was, as Laura Norén, co-editor of Toilet: Public Restrooms and the Politics of Sharingtold me, “the [highway] rest stop for urban warriors.” The company’s stores are widely viewed as a so-called “third space,” a place outside of home or work where people can gather and socialize. But Starbucks was always, in reality, a private business where access can be yanked at any time. And that’s exactly what happened.

The best outcome here would be if Starbucks’ decision led more cities and states to commit to building more public bathrooms. It can happen. Portland, Oregon — which manufactures and promotes the Portland Looa stand-alone, self-cleaning bathroom — has 17 public toilets per 100,000 residents. More cities and states should follow its lead. The worst outcome would be to flush this opportunity for change down the toilet.

Helaine I am

Helaine Olen is a managing editor at the American Economic Liberties Project and a reporter in residence at the Omidyar Network. She is the author of “Pound Foolish: Exposing the Dark Side of the Personal Finance Industry” and a co-author of “The Index Card: Why Personal Finance Doesn’t Have to Be Complicated.” She has been a columnist for The Washington Post and Slate, and her work has also appeared in numerous other publications, including The New York Times and The Atlantic.