U.S. High Courts, Cases 2020



supreme court graphicNews and comment regarding the Supreme Court of the United States (SCOTUS) are shown below, with commentary also on major issues involving U.S. federal courts. The links to a sample of significant reports are drawn primarily from major national outlets or from those featuring specialized expertise. They are arranged in reverse chronological order. Included also are notable reports involving lower federal courts.

-- Andrew Kreig, J.D., M.S.L. / Justice Integrity Project editor

Note: Excerpts below are from the authors' words except for subheads and Editor's notes" such as this. This summary of U.S. Supreme Court and other high court cases encompasses news stories and commentary in 2020. For our complete listing of periods extending back to 2018, kindly visit these links: 2018, 2019 and 2020




June 17

supreme court resized 2021

ny times logoNew York Times, Affordable Care Act Survives Latest Supreme Court Challenge, Adam Liptak, June 17, 2021. A seven-justice majority ruled that the plaintiffs did not have the standing to sue, but the court did not address the larger issue in the case. The 2010 law, also known as Obamacare, has been the subject of relentless criticism from Republicans and two other major Supreme Court cases.

The Affordable Care Act on Thursday survived a third major challenge in the Supreme Court.

A seven-justice majority ruled that the plaintiffs had not suffered the sort of direct injury that gave them standing to sue.

The court did not reach the larger issues in the case: whether the bulk of the sprawling 2010 health care law, President Barack Obama’s defining domestic legacy, could stand without a provision that initially required most Americans to obtain insurance or pay a penaltydjt hands up mouth open CustomIn the years since the enactment of the law in 2010, Republicans have worked hard to destroy it, and President Donald J. Trump relentlessly criticized it. But attempts to repeal it failed, as did two earlier Supreme Court challenges, in 2012 and 2015. With the passing years, the law gained in popularity and was woven into the fabric of the health care system. Its future now seems secure.

Striking down the Affordable Care Act would have expanded the ranks of the uninsured in the United States by about 21 million people — a nearly 70 percent increase — according to recent estimates from the Urban Institute.

The biggest loss of coverage would have been among low-income adults who became eligible for Medicaid under the law after most states expanded the program to include them. But millions of Americans would also have lost private insurance, including young adults whom the law allowed to stay on their parents’ plans until they turned 26 and families whose income was modest enough to qualify for subsidies that help pay their monthly premiums.

A ruling against the law would also have doomed its protections for Americans with past or current health problems — or pre-existing conditions. The protections bar insurers from denying them coverage or charging them more for it.

The case, California v. Texas, No. 19-840, was brought by Republican officials who said the mandate requiring health insurance coverage became unconstitutional after Congress in 2017 eliminated the penalty for failing to obtain coverage because the mandate could no longer be justified as a tax.

The argument was based on the court’s 2012 ruling, in which Chief Justice John G. Roberts Jr., joined by what was at the time the court’s four-member liberal wing, said the mandate was authorized by Congress’s power to assess taxes.

The new challenge was largely successful in the lower courts. A federal judge in Texas ruled that the entire law was invalid, but he postponed the effects of his ruling until the case could be appealed. In 2019, the United States Court of Appeals for the Fifth Circuit, in New Orleans, agreed that the mandate was unconstitutional but declined to rule on the fate of the remainder of the health law, asking the lower court to reconsider the question in more detail.

washington post logoWashington Post, Justices unanimously rule for Catholic group in Philadelphia foster-care dispute, Robert Barnes, June 17, 2021. The Supreme Court said Thursday that Philadelphia was wrong to end a contract to provide foster care services to a religious organization that refuses to work with same-sex couples.

All nine justices agreed with the outcome, but Chief Justice John G. Roberts Jr. wrote for a majority of six in saying Philadelphia violated the Constitution’s guarantee of free exercise of religion in ending a contract with Catholic Social Services to screen potential foster care parents.

“CSS seeks only an accommodation that will allow it to continue serving the children of Philadelphia in a manner consistent with its religious beliefs; it does not seek to impose those beliefs on anyone else,” Roberts wrote. “The refusal of Philadelphia to contract with CSS for the provision of foster care services unless it agrees to certify same-sex couples as foster parents cannot survive strict scrutiny, and violates the First Amendment.”

It was joined by conservative Justices Brett M. Kavanaugh and Amy Coney Barrett, as well as the court’s liberals, Stephen G. Breyer, Sonia Sotomayor and Elena Kagan.

Philadelphia city officials stopped the contract with Catholic Social Services after a 2018 article in the Philadelphia Inquirer described its policy against placing children with same-sex couples. They said the agency’s actions violated the city’s anti-discrimination laws.

The agency and several foster parents sued the city, saying the decision violated their First Amendment rights to religious freedom and free speech.

A unanimous panel of the U.S. Court of Appeals for the 3rd Circuit ruled that the city was within its rights to end the contract and was not targeting the Catholic agency for its religious views. Instead, the court said, the city was insisting that those with whom it does business agree with its nondiscrimination policy.

ny times logoNew York Times, Supreme Court Limits Human Rights Suits Against Corporations, Adam Liptak, June 17, 2021. Six citizens of Mali had sued Nestlé USA and Cargill, accusing the companies of profiting from child slavery on Ivory Coast cocoa farms.

The Supreme Court ruled on Thursday in favor of two American corporations accused of complicity in child slavery on Ivory Coast cocoa farms. The decision was the latest in a series of rulings imposing strict limits on lawsuits brought in federal court based on human rights abuses abroad.

The case was brought by six citizens of Mali who said they were trafficked into slavery as children. They sued Nestlé USA and Cargill, saying the firms had aided and profited from the practice of forced child labor.

Justice Clarence Thomas, writing for the majority, said the companies’ activities in the United States were not sufficiently tied to the asserted abuses.

The plaintiffs had sued under the Alien Tort Statute, a cryptic 1789 law that allows federal district courts to hear “any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.”

The law was largely ignored until the 1980s, when federal courts started to apply it in international human rights cases. A 2004 Supreme Court decision, Sosa v. Álvarez-Machain, left the door open to some claims under the law, as long as they involved violations of international norms with “definite content and acceptance among civilized nations.”

Since then, the Supreme Court has narrowed the law in two ways, saying it does not apply where the conduct at issue was almost entirely abroad or where the defendant was a foreign corporation.

In 2013, in Kiobel v. Royal Dutch Petroleum, the court said there was a general presumption against the extraterritorial application of American law. It rejected a suit against a foreign corporation accused of aiding and abetting atrocities by Nigerian military and police forces against Ogoni villagers.

Chief Justice John G. Roberts Jr., writing for the majority, said that even minimal contact with the United States would not be sufficient to overcome the presumption.

“Even where the claims touch and concern the territory of the United States,” he wrote, “they must do so with sufficient force to displace the presumption against extraterritorial application.”

June 14

NBC News, Former NSA contractor Reality Winner, jailed for leaking secrets about Russian hacking, released early from prison, Ben Kesslen, June 14, 2021.Winner, 29, was sentenced to five years and NBC News logohree months in prison in 2018 after leaking classified information to The Intercept news outlet.

Reality Winner, the former National Security Agency contractor who was jailed for leaking secrets about Russian hacking, has been released early from prison, her lawyer said Monday.

"I am thrilled to announce that Reality Winner has been released from prison," Alison Grinter Allen, her lawyer, said in a statement posted on Twitter.

reality winner mug CustomWinner, 29, was sentenced to more than five years in prison in 2018 after she leaked classified information to The Intercept news outlet about Russia's attempts to hack the 2016 presidential election. She pleaded guilty to leaking a classified report that detailed the Russian government's efforts to penetrate a Florida-based voting software supplier. At the time, the sentence was the longest ever for a federal crime involving leaks to the media.

Her lawyers filed a formal petition for commutation with the Department of Justice in February 2020, saying she had "suffered enough" and called on then-President Donald Trump to "do the right thing."

The former NSA translator was released for good behavior and is still in custody amid the “residential re-entry process,” Allen said.

“We are relieved and hopeful,” she wrote. “Her release is not a product of the pardon or compassionate release process, but rather time earned from exemplary behavior while incarcerated.”

While Trump did not commute Winner’s sentence, he did say on Twitter in 2018 her punishment was “so unfair...."Gee, this is 'small potatoes' compared to what Hillary Clinton did," he had tweeted.

Palmer Report, Opinion: Top DOJ official abruptly resigns over his role in the Trump DOJ spying scandal, James Sullivan, June 14, 2021. Although the doom and gloom forecasters of Resistance Twitter have gone into a fever pitch over the last week, interpreting even the slightest movement made by the Justice Department as proof of the worst case scenario, things are already in full motion under a new DOJ that is taking on a massive agenda.

bill palmer report logo headerAfter the bombshell that broke last week about Donald Trump’s DOJ being weaponized to spy on his political opponents, Attorney General Merrick Garland stepped up to the plate immediately to begin an investigation of those involved.

Just days later, we’re already seeing results – with Trump appointee John Demers tendering his resignation on Monday morning. There are reports that he was contemplating resignation by the end of the month, but you’d have to consider why Demers decided to leave when he did – seeming that he was one of the few Trumpers left at the DOJ and knew that the story of Justice Department log circularTrump’s people spying on congressional Democrats by subpoenaing companies like Apple and Microsoft in secret was inevitably going to break.

Other developments in the case aren’t likely to happen as fast – but the more problematic people under Garland’s watch are already trying to distance themselves, meaning we’ll probably get a bit more of the story very soon. In a legitimate investigation, things tend to move much slower than most of us want them to – but it’s a sign that things are being done carefully with little room for error.

For Garland to de-politicize a Justice Department that should have never been politicized in the first place, he can’t simply go around locking up Trump and his associates, as much as resistors have been dreaming about it for years. If it were that easy, things right now would be considerably worse – with a good chance that Donald Trump and Bill Barr would still be running the show, and effectively prosecuting their most vehement critics. Today’s news is an important sign that things are going in the right direction, however long they may take.

Press Run, Commentary: It’s worse than Watergate, Eric Boehlert, June 14, 2021. Stunning new abuse-of-power revelations remind us of the Trump administration’s complete disregard for democratic principles. We now know that over a span of years it took extraordinary legal measures, including gag orders and secret tribunals, in pursuit of email records from reporters at CNN and the Washington Post. Team Trump also unleashed the courts on Democratic members of Congress and their families trying to obtain private phone records, as well as secretly targeting a key White House attorney, who possibly fell under suspicion for not being sufficiently loyal to Trump.

djt march 2020 CustomThe disturbing portrait now in focus is one of a Republican White House that for four years worked in tandem with partisan prosecutors to systematically politicize the vast powers of the Justice Department, which often treated Trump’s allies leniently, and used unprecedented tools to target his foes. It was Trump recklessly using the executive branch to gather private information on members of the legislative branch, as well as members of the media.

The emerging scandal already eclipses Richard Nixon’s Watergate in terms of the benchmarks we use to gauge Washington, D.C. abuse of power. It’s “Nixon on stilts and steroids,” Nixon’s former White House Counsel John Dean recently told CNN. "Nixon didn't have that kind of Department of Justice.”

It’s worse than Watergate because the White House abuse of power was purposely powered by the Justice Department. This would have been if U.S. Attorney General John Mitchell had helped plot the Watergate break-in, instead of a band of rogue Nixon sycophants. This is worse because it’s institutional abuse conducted by political entities with boundless authority, such as the White House and the DOJ.

washington post logoWashington Post, Biden nominated as many minority women to be judges in four months as Trump had confirmed in four years, Adrian Blanco, June 14, 2021. Sixty-five percent of federal judges confirmed under Donald Trump were non-Hispanic White men. President Biden has launched an early effort to reverse that trend, nominating 11 women who would add diversity to the federal bench. President Biden and the Democrat-led Senate have moved quickly to boost minority and female representation on the federal courts following Donald Trump’s four-year push to remake the judiciary, in which he nominated a large share of White, male justices.

Biden’s early judicial slate represents a departure from his recent predecessors; his initial picks are more diverse, and Biden rolled out more nominations earlier in his presidency than others.

Fifteen of his 19 nominees so far are women, including 11 women from diverse racial and ethnic backgrounds. The Senate confirmed U.S. District Judge Ketanji Brown Jackson — widely considered a Supreme Court contender — to the influential U.S. Court of Appeals for the D.C. Circuit on Monday. Additionally, it gave final approval to Zahid Quraishi, a magistrate judge from New Jersey and the first Muslim confirmed as a federal judge, in a bipartisan vote on Thursday.

[Biden’s court pick Ketanji Brown Jackson has navigated a path few Black women have]
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“This trailblazing slate of nominees draws from the very best and brightest minds of the American legal profession,” Biden said in a statement when announcing the nominees. “Each is deeply qualified and prepared to deliver justice faithfully under our Constitution and impartially to the American people — and together they represent the broad diversity of background, experience, and perspective that makes our nation strong.”

In his first four months, Biden nominated as many minority women to the federal bench as Trump had confirmed in his entire four years. A Washington Post analysis of Federal Judicial Center data shows all women, regardless of race or ethnicity, are underrepresented on the judiciary.
Share of active federal judges by race and ethnicity

Forty-eight women from diverse racial or ethnic backgrounds became federal judges during Barack Obama’s two terms, compared with 21 each in George W. Bush’s and Bill Clinton’s presidencies. His progress stalled when Republicans took back the Senate in 2014 and blocked dozens of judicial nominees, including two who were nominated by Biden and confirmed last week. Following Republican Senate obstruction, Trump came into office with more than 100 vacancies to fill.

June 11

katie logan 2001 currently tim gruber wash post

washington post logoWashington Post, Investigation: People of Praise, a Christian group tied to Justice Amy Coney Barrett, faces reckoning over sexual misconduct allegations, Beth Reinhard and Alice Crites, June 11, 2021. Barrett’s ascendancy to the Supreme Court spurred former members of the group to speak out and forced People of Praise to hire lawyers to investigate.

In December, Katie Logan called the police in this Minneapolis suburb to unearth a buried secret: Her high school physics teacher had sexually assaulted her two decades earlier, she said. She was 17 and had just graduated from a school run by a small Christian group called People of Praise. He was 35 at the time, a widely admired teacher and girls’ basketball coach who lived in a People of Praise home for celibate men.

Logan (shown above in 2001 photo at left and in a recent Washington Post photo by Tim Gruber) told police she reported the June 2001 incident to a dean at the school five years after it happened. Police records show the dean believed Logan and relayed the complaint to at least one other senior school official.

But the teacher, Dave Beskar, remained at Trinity School at River Ridge until 2011, when he was hired to lead a charter school in Arizona. In 2015, he returned to the Minneapolis area to become headmaster of another Christian school. Beskar denies that any inappropriate sexual activity took place.

“People of Praise leaders failed me,” Logan, 37, said in an interview with The Washington Post. “I think they wanted to protect themselves more than they wanted to protect me and other girls.”

amy coney barrett headshot notre dame photoLogan was encouraged to go to police by a founder of “PoP Survivors,” a Facebook group formed last fall after the Supreme Court nomination of Amy Coney Barrett, left, who has deep roots in People of Praise and who served on the board of its schools years after Beskar left.

Barrett’s ascendancy to the nation’s highest court has forced a painful reckoning in People of Praise, an insular Christian community that emphasizes traditional gender roles. The former members are now demanding that the group acknowledge their suffering and that it mishandled complaints, prompting People of Praise to hire two law firms to investigate allegations of abuse.

The Post interviewed nine people in the Facebook group — all but one of them women — who said they were sexually abused as children, as well as another man who says he was physically abused. In four of those cases, the people said the alleged abuse was reported to community leaders. Logan gave The Post recorded statements and other documents from the police investigation of her complaint.

In response to questions from The Post, Craig Lent, chairman of the religious group’s board of governors, said that the lawyers’ findings will be reviewed by a People of Praise committee of men and women and that “appropriate action” will be taken.

Lent declined in a written statement to respond to specific questions about Logan’s allegation but acknowledged the “serious questions that it raises.” He declined to say how many claims are being investigated.

“People of Praise has always put the safety of children far above any reputational concerns,” said Lent, who is also chairman of the board overseeing three Trinity Schools campuses for middle and high school students — in the Minneapolis area, South Bend, Ind., and Falls Church, Va.

People of Praise grew out of the charismatic Christian movement of the early 1970s, which adopted practices described in the New Testament of the Bible, including speaking in tongues, the use of prophecy and faith healing. The group says it has 1,700 members across the United States, Canada and the Caribbean.

amy coney barrett ap oct 12 2020Barrett, who was raised in a People of Praise community in Louisiana, has long been active in the branch in the South Bend area, where she was a student at Notre Dame Law School. Barrett lived for a time with People of Praise co-founder Kevin Ranaghan and his wife, Dorothy, Dorothy Ranaghan has confirmed. A People of Praise 2010 directory shows Barrett served as a “handmaid,” a key female adviser to another female member. Barrett served on the Trinity Schools board, whose members must belong to People of Praise, from 2015 to 2017.

Barrett was not asked about People of Praise during her confirmation to the Supreme Court (shown at right). At her 2017 Senate confirmation hearing for a federal appeals court, she said she would not put her religious beliefs before the rule of law. “It’s never appropriate for a judge to impose that judge’s personal convictions, whether they derive from faith or anywhere else, on the law,” she said.   

From left, Sundar Pichai of Google, Mark Zuckerberg of Facebook and Jack Dorsey of Twitter at House Energy and Commerce Committee hearing on March 25, 2021 via YouTube.From left, Sundar Pichai of Google, Mark Zuckerberg of Facebook and Jack Dorsey of Twitter testified remotely in March to the U.S. Congress (Photos via House Energy and Commerce Committee).

ny times logoNew York Times, Lawmakers, Taking Aim at Big Tech, Push Sweeping Overhaul of Antitrust, Cecilia Kang, June 11, 2021. A bipartisan group of House members introduced five bills that take direct aim at Amazon, Apple, Facebook and Google.

House lawmakers on Friday introduced sweeping antitrust legislation aimed at restraining the power of Big Tech and staving off corporate consolidation across the economy, in what would be the most amazon logo smallambitious update to monopoly laws in decades.

The bills — five in total — take direct aim at Amazon, Apple, Facebook and Google and their grip on online commerce, information and entertainment. The proposals would make it easier to break up businesses that use their dominance in one area to get a stronghold in another, would create new hurdles for acquisitions of nascent rivals, and would empower regulators with more funds to police companies.

“Right now, unregulated tech monopolies have too much power over our economy. They are in a unique position to pick winners and losers, destroy small businesses, raise prices on consumers and put folks out of work,” said Representative David Cicilline, Democrat of Rhode Island and chairman of the antitrust subcommittee. “Our agenda will level the playing field and ensure apple logo rainbowthe wealthiest, most powerful tech monopolies play by the same rules as the rest of us.”

The introduction of the bills, which have some bipartisan support, represents the most aggressive challenge yet from Capitol Hill to Silicon Valley’s tech giants, which have thrived for years without regulation or much restraint on the expansion of their business. Amazon, Apple, Facebook and Google have a combined market capitalization of $6.3 trillion, four times more than the value of the country’s 10 largest banks.

June 10djt william barr doj photo march 2019

ny times logoNew York Times, Hunting Leaks, Trump Officials Focused on Democrats in Congress, Katie Benner, Nicholas Fandos, Michael S. Schmidt and Adam Goldman, June 10, 2021. The Justice Department seized records from Apple for metadata of House Intelligence Committee members, their aides and family members.

As the Justice Department investigated who was behind leaks of classified information early in the Trump administration, it took a highly unusual step: Prosecutors subpoenaed Apple for data from the accounts of at least two Democrats on the House Intelligence Committee, aides and family members. One was a minor.

All told, the records of at least a dozen people tied to the committee were seized in 2017 and early 2018, including those of Representative Adam B. Schiff of California, then the panel’s top Democrat and now its chairman, according to committee officials and two other people briefed on the inquiry. Representative Eric Swalwell of California said in an interview Thursday night that he had also been notified that his data had subpoenaed.

american flag upside down distressProsecutors, under the beleaguered attorney general, Jeff Sessions, were hunting for the sources behind news media reports about contacts between Trump associates and Russia. Ultimately, the data and other evidence did not tie the committee to the leaks, and investigators debated whether they had hit a dead end and some even discussed closing the inquiry.

But William P. Barr, shown above, revived languishing leak investigations after he became attorney general a year later. He moved a trusted prosecutor from New Jersey with little relevant experience to the main Justice Department to work on the Schiff-related case and about a half-dozen others, according to three people with knowledge of his work who did not want to be identified discussing federal investigations.

The zeal in the Trump administration’s efforts to hunt leakers led to the extraordinary step of subpoenaing communications metadata from members of Congress — a nearly unheard-of move outside of corruption investigations. While Justice Department leak investigations are routine, current and former congressional officials familiar with the inquiry said they could not recall an instance in which the records of lawmakers had been seized as part of one.

Moreover, just as it did in investigating news organizations, the Justice Department secured a gag order on Apple that expired this year, according to a person familiar with the inquiry, so lawmakers did not know they were being investigated until Apple informed them last month.

Prosecutors also eventually secured subpoenas for reporters’ records to try to identify their confidential sources, a move that department policy allows only after all other avenues of inquiry are exhausted.

Proof via Substack, Investigation: Trumpist Insurrectionists Have Now Created a Systematized Mechanism for "Cancelling" People and Groups—and It's the Most Comprehensive Cancel Culture America seth abramson graphicHas Ever Seen, Seth Abramson, left, June 10, 2021. The number of brands explicitly targeted for cancellation by Patriot.Win is staggering, representing a cultist/militant rejection of both the American free-market system and American democracy itself.

The most ardent adherents to a self-described billionaire’s “populist” movement claim to be animated by what they say is the worrying spread of “cancel culture” in America. If their complaint seems not just hypocritical but even delusionally self-contradictory, do remember that that’s the point: Trumpism is about attributing to one’s opponents whatever it is one is doing oneself that one cannot defend, whether it’s encouraging violent attacks on persons and property, undermining U.S. elections, or “cancelling” so many companies, websites, media outlets and persons through concerted digital action and even (see below) a systematized protocol for cancelling entities that there can no longer be any doubt that Patriot.Win is now the chief “canceller” in the United States.

The Patriot.Win Website: Patriot.Win is an insurrectionist outgrowth of the now-defunct pro-sedition website TheDonald.Win, which latter address now redirects to America.Win. Patriot.Win has two badges it uses to warn its users about companies, sites, media outlets and persons:

    • The Orange “Warning” Badge
    • The Red “Cancellation” Badge 

dan mcgahn djt

Palmer Report, Opinion: Don McGahn has finally publicly confessed to Donald Trump’s obstruction of justice crimes, Bill Palmer, right, June 10, 2021. It shouldn’t have taken this long. It’s been sabotaged by bill palmercorrupt bad actors at every turn for years. But once Donald Trump lost the election, it was always going to happen inevitably. And sure enough, former White House Counsel Don McGahn has finally publicly confessed to Trump’s obstruction of justice crimes.

McGahn (above right) testified about these crimes to the Mueller team long ago – but as we all remember – the most important parts of the Mueller report were illegally buried by Bill Barr and then the media inexplicably took Barr at his word. But now McGahn has testified about Trump’s obstruction crimes to Congress, and while it took place behind closed doors, McGahn knew the transcript would be released shortly after his testimony.

bill palmer report logo headerSure enough, that happened yesterday. The public transcript reveals that while Don McGahn wasn’t the most cooperative of witnesses, he did specifically state that Donald Trump ordered him to do things to interfere with the Mueller probe that he refused to do, because he viewed the orders as illegal. This is a confession on McGahn’s part that he witnessed Trump commit felony obstruction of justice.

Why does this matter? Here’s the thing. Donald Trump is already facing grand jury indictment in New York, and he’s on a glide path to state prison. But that will be for his financial crimes, many of which took place before he took office. The big question is whether Trump will also be federally criminally charged for the crimes he committed in his role as President.

McGahn’s confession to Trump’s guilt will make it a heck of a lot easier for the Feds to criminally charge Trump with obstruction of justice, if they want to. Also, the public release of this testimony should help ramp up public demand for Trump’s federal prosecution, which will help put pressure on the Feds to charge him even if they’d rather not.

Because McGahn’s testimony emerged as a transcript and not live on television (something that McGahn would never have agreed to and would have instead fought in court for another few years), the impact of his testimony won’t be immediate. But we’re already seeing the McGahn transcript filter its way into media coverage, which will help gradually educate the public about Trump’s obstruction crimes, which could finally get the ball rolling on obstruction charges.

Again, Donald Trump is already earmarked for prison for financial crimes in New York. And frankly, it’ll be infinitely easier to get a jury to convict Trump for straightforward financial crimes than it will be to get a jury to convict Trump for something as qualitative as obstruction of justice. But if you believe that the Feds must criminally charge Trump for his crimes in office, suffice it to say that those odds – while still unknown – certainly just went up


More On U.S. Assaults On Elections, Voting Rights  

ali akbar alexander stop steal mic

Proof via Substack, Investigation: A tranche of texts between Alexander and an insurrectionist Arizona politician reveals new bombshells, including the location of the insurrectionists' war room on January seth abramson graphic6—just 240 feet from Trump's, Seth Abramson, left, June 9-10, 2021. Two United States Senators Were in Direct Telephone Contact with Now-in-Hiding Domestic Terror Leader Ali Alexander (shown above in a file photo) on Insurrection Eve.

Introduction: A large tranche of text communications between Arizona state representative Mark Finchem and domestic terror leader Ali Alexander, the latter of whom is presently in hiding from seth abramson proof logofederal authorities, reveal that Alexander was in direct telephone contact with multiple United States senators on January 5, 2021—just 24 hours before what former United States Capitol Police chief Steven Sund has now called “a coordinated violent attack on the United States Capitol by thousands of well-equipped armed insurrectionists” and “a coordinated military style attack involving thousands.”

Alexander, the leader of the Stop the Steal “movement,” coordinated the events that produced the January 6 attack after repeatedly threatening violence against the U.S. government in December 2020 and in the days immediately preceding January 6. Among Alexander’s public threats from December 2020 and January 2021 are these:

• “I pray that I am the tool to stab these motherfuckers [in the U.S. government].”
• “When I do unleash [my] plan, I will unleash a legion of angels to bring hell to my enemies.”
• “One of our [Stop the Steal] organizers in one state said, ‘We’re nice patriots, we don’t throw bricks.’ I leaned over [to him] and I said, ‘Not yet. Not yet!’

Alexander is also on video leading a chant of “Victory or death!” in Freedom Plaza in Washington on Insurrection Eve.

willard hotel

  • Proof via Substack, Investigation: Inside the Willard Hotel on January 6, Seth Abramson, left, June 8-9, 2021. One of Washington's most expensive hotels (above) was the nerve center for the seth abramson proof logoinsurrection—and a playground for seditious kingpins media and the FBI seem content to ignore for now. Proof takes a look inside.
  • Proof via Substack, Investigation: Team Trump Had a Second Pre-Insurrection War Room, Seth Abramson, left, June 6, 2021. An investigation of who was in this second Insurrection Eve warroom has now begun. 
  • Seth Abramson, shown above and at right, is founder of Proof and is a former criminal defense attorney and criminal investigator who teaches digital journalism, seth abramson resized4 proof of collusionlegal advocacy, and cultural theory at the University of New Hampshire. A regular political and legal analyst on CNN and the BBC during the Trump presidency, he is a best-selling author who has published eight books and edited five anthologies.

    Abramson is a graduate of Dartmouth College, Harvard Law School, the Iowa Writers' Workshop, and the Ph.D. program in English at University of Wisconsin-Madison. His books include a Trump trilogy: Proof of Corruption: Bribery, Impeachment, and Pandemic in the Age of Trump (2020); Proof of Conspiracy: How Trump's International Collusion Is Threatening American Democracy (2019); and Proof of Collusion: How Trump Betrayed America (2018). 

washington post logoWashington Post, FBI director berated for Jan. 6 failures and Giuliani probe as he testifies before House committee, Matt Zapotosky, June 10, 2021. Democrats and Republicans lobbed withering questions at the FBI as Director Christopher A. Wray testified before the House Judiciary Committee Thursday, though their concerns diverged significantly along partisan lines. 

Committee Chairman Jerrold Nadler (D-N.Y.) blasted Wray for the bureau’s failure to detect in advance and respond to the mob that attacked the U.S. Capitol on Jan. 6, while ranking Republican Jim Jordan (Ohio) accused the bureau of intruding on Americans’ civil liberties in an eclectic mix of circumstances.

The hearing made clear that Democrats and Republicans could hardly be further apart on what the FBI should and shouldn’t be doing. But on this much, they seemed to agree: the nation’s premier federal law enforcement institution had significant problems that needed to be addressed.

christopher wray oFor his part, Wray, right, sought to highlight how the bureau seeks to root out violence — no matter what motivates it — and is careful not to tread on Americans’ First Amendment rights.

In his opening statement, the FBI director highlighted the “extremist violence” of Jan. 6 in which more than 100 officers were injured in just a few hours and asserted that law enforcement had made more than 500 arrests.

But he also noted the bureau saw extremist violence during last summer’s civil unrest associated with racial justice protests. While he asserted that “most citizens made their voices heard through peaceful lawful, protests,” he said that others attacked federal buildings and left officers injured, and thousands had been arrested across the country.

“That is not a controversial issue that should force anyone to take sides,” he said, adding later in response to questions, “I don’t care whether you’re upset at our criminal justice system, or upset at our election system, violence, assaults on federal law enforcement, destruction of property, is not the way to do it. That’s our position.”

FBI report warned of ‘war’ at Capitol, contradicting claims there was no indication of looming violence

FBI logoNadler and other Democrats pressed Wray on the intelligence the bureau had gathered in advance of Jan. 6, and the actions it took that day as rioters stormed the Capitol. Nadler noted that a report from the bureau’s Norfolk field office from the day before seemed to predict what was going to happen, and it was forwarded to the field office in Washington. He questioned why — in the days after the riot — the head of that office insisted the bureau had no intelligence anything would happen beyond activity protected by the First Amendment.

“Did the FBI simply miss the evidence, or did it see the evidence and fail to piece it together?” Nadler asked.

Wray, as he and others have in the past, said the document was “raw, unverified” intelligence, and asserted that it nonetheless was shared with law enforcement partners, including the Capitol Police, in multiple ways.

“We tried to make sure that we got that information to the right people,” Wray said. He added that, among those arrested and charged so far in the Capitol attack, “almost none” were previously under investigation.

Federal agents execute search warrant at Giuliani’s home

Democrats also sought to get Wray to stress the seriousness of the Jan. 6 attack, while Republicans focused more on the summer’s unrest. Though Wray stressed the seriousness of both, he noted that with the summer’s violence across the country, it was often easier for prosecutors to pursue local charges, while the mayhem at the Capitol produced more federal offenses.

ny times logoNew York Times, 6 Men Said to Be Tied to Three Percenters Movement Charged in Capitol Riot, Alan Feuer and Matthew Rosenberg, June 10, 2021, The indictment marks the first charges lodged against conspirators linked to the radical gun rights group.

Federal prosecutors filed a wide-ranging conspiracy indictment on Thursday accusing six California men said to be connected to a radical gun rights movement called the Three Percenters with plotting to assault the Capitol on Jan. 6, in the first charges lodged against anyone involved with planning any of the political events held the week of the attack.

Justice Department log circularThe 20-page indictment was also the first to be brought against a group of alleged Three Percenters, a loosely organized movement that takes its name from the supposed 3 percent of the U.S. colonial population that fought against the British. The new charges, filed in Federal District Court in Washington, came on the same day that Christopher A. Wray, the F.B.I. director, testified in front of a House committee that prosecutors were pursuing additional conspiracy charges against some of the rioters who stormed the Capitol.

Investigators have said for months that several extremist groups were involved in the attack, but while the Three Percenters have been occasionally mentioned in court filings, most accused extremists have come from two other groups: the Oath Keepers militia and the far-right nationalist group the Proud Boys. The new charges could suggest that prosecutors have started to pay attention not only to those who directly took part in the Capitol attack, but also to those who helped foment the assault.

The two top defendants in the indictment — Alan Hostetter, 56, a former police chief turned yoga instructor; and Russell Taylor, 40, a wealthy graphic designer with a taste for red Corvettes — were already under scrutiny by the government after the F.B.I. raided their homes in January. Mr. Hostetter and Mr. Taylor were leaders of a group called the American Phoenix Project, which was founded to fight the “fear-based tyranny” of coronavirus-related restrictions. The group later embraced former President Donald J. Trump’s lies about a stolen election, and helped organize a well-attended rally outside the Supreme Court on Jan. 5, where the speakers included Roger J. Stone Jr., a former adviser to Mr. Trump.

Mr. Hostetter’s wife, Kristine, a schoolteacher, also attracted national attention this year after she attended “Stop the Steal” rallies in Washington, setting off a furor in their hometown, San Clemente, Calif., that prompted an investigation by the school board into whether she had attacked the Capitol. She was cleared by the district in March.

washington post logoWashington Post, He brought a sawed-off rifle to the Capitol on Jan. 6. Then he plotted to bomb Amazon data centers, Katie Shepherd, June 10, 2021. For weeks this spring, 28-year-old Seth Aaron Pendley had plotted an attack on Amazon data centers in Virginia. He had already taken a sawed-off rifle to the U.S. Capitol on Jan. 6. Now, he hoped to cripple much of the Internet and take down government networks.

Last April, he finally arranged a meeting with a man promising to provide the C-4 explosive devices. When they met in Fort Worth, Tex., the man showed Pendley how to arm and detonate the powerful bombs.

But just as Pendley placed the devices into his Pontiac, federal agents swarmed in and arrested him. The bomb seller was actually an FBI plant who had helped unravel a plan Pendley believed could “kill off about 70 percent of the internet.”

On Wednesday, Pendley pleaded guilty to planning to bomb Amazon facilities in an attempt to undermine the U.S. government and to spark a rebellion against the “oligarchy” he believed to be running the country.

The case underscores the dramatic rise in domestic terrorism driven by right-wing extremists and raises concerns about those who participated in the Jan. 6 insurrection plotting new attacks. Domestic attacks peaked in 2020, mostly driven by white-supremacist, anti-Muslim and anti-government extremists. Those far-right attacks have killed 91 people since 2015, according to an analysis by The Washington Post.

Justice Department officials on Wednesday said Pendley’s plans could have injured or killed workers at the Amazon facilities if the FBI hadn’t intervened.

“Due in large part to the meticulous work of the FBI’s undercover agents, the Justice Department was able to expose Mr. Pendley’s twisted plot and apprehend the defendant before he was able to inflict any real harm,” Prerak Shah, the acting U.S. attorney for the Northern District of Texas, said in a statement. “We may never know how many tech workers’ lives were saved through this operation — and we’re grateful we never had to find out.”

Pendley’s plot against the government began to take shape in January, according to investigators. He said he traveled to D.C. on Jan. 6 with a sawed-off rifle concealed in a backpack. As a pro-Trump mob stormed the Capitol, he decided to leave the gun in his car and never entered the building, according to court records. But he later boasted about taking a piece of broken glass from the federal building home to Texas with him.

Under his plea agreement, Pendley faces between five and 20 years in prison, a fine of up to $250,000, and three years of probation and will be banned from owning firearms.

washington post logoWashington Post, Trump’s election fraud claims propelled them to the Capitol on Jan. 6. His ongoing comments are keeping them in jail, Rachel Weiner and Spencer S. Hsu, June 10, 2021 (print ed.). Many of those charged in the Jan. 6 attack on the Capitol have blamed former president Donald Trump for their actions, saying he riled them with his claims of election fraud and his promises to join them in fighting it.

Now, Trump’s continued refusal to accept the results of the 2020 election is helping to keep some of those supporters behind bars.

“The steady drumbeat that inspired defendant to take up arms has not faded away; six months later, the canard that the election was stolen is being repeated daily on major news outlets and from the corridors of power in state and federal government, not to mention the near-daily fulminations of the former President,” U.S. District Judge Amy Berman Jackson wrote recently in denying bond to a Colorado man. The man is accused of driving to Washington with two firearms and thousands of rounds of ammunition after threatening to kill House Speaker Nancy Pelosi (D-Calif.) and D.C. Mayor Muriel E. Bowser (D).

Although Trump has been blocked from major social media platforms and recently shut down his own blog, he is still monitoring and promoting false claims of election fraud. Citing Trump’s ongoing comments, federal judges have shared fears that those defendants accused of the worst violence or threats of violence that day remain a danger to public safety.

“Unfortunately,” said Judge Amit Mehta in detaining a man accused of throwing a hatchet and a desk during the riot, the “political dynamics that gave way to January 6th have not faded.”

Push to undermine election in Pennsylvania ‘like this rogue thing’

In keeping a Trump supporter and felon in jail in Michigan pending trial, Jackson highlighted a message in which the man said he was in D.C. on Jan. 6 because “Trump’s the only big shot I trust right now.”

The man has been charged with obstructing a congressional proceeding and related crimes, and his “promise to take action in the future cannot be dismissed as an unlikely occurrence given that his singular source of information . . . continues to propagate the lie that inspired the attack on a near daily basis,” Jackson wrote.

At least half a dozen defendants detained on riot-related charges have been released in recent weeks in part by arguing that the insurrection was a singular event that could not be re-created. That argument was upheld by the U.S. Court of Appeals for the District of Columbia, which found that the dangerousness of any individual defendant had to be considered in light of the fact that “the specific circumstances of January 6” created “a unique opportunity to obstruct democracy.”

ny times logoNew York Times, Texas Attorney General Is Being Investigated by State Bar Association, Dave Montgomery, June 10, 2021. Attorney General Ken Paxton is accused of filing a frivolous lawsuit when he challenged President Biden’s victory.

The State Bar of Texas is investigating whether Attorney General Ken Paxton committed professional misconduct by challenging President Biden’s victory in the courts, which a complaint called a “frivolous lawsuit” that wasted taxpayer money.

The investigation, which could result in discipline ranging from a reprimand to disbarment, is the latest obstacle for Mr. Paxton, who has been at the center of bribery and corruption accusations and was indicted in 2015 on allegations of securities fraud in a case that has not been resolved.

Mr. Paxton, a Republican, is also being challenged by a member of the Bush family in next year’s primary for attorney general, the state’s highest law enforcement office and a position that has served as a political springboard. He was preceded in office by Gov. Greg Abbott and Senator John Cornyn.

After it became clear that Mr. Biden won the election, Mr. Paxton filed a lawsuit in early December that was ridiculed by many legal experts and ultimately rejected by the U.S. Supreme Court. He had asked the court to extend a deadline for the certification of presidential electors, arguing that election irregularities in four other states — Georgia, Michigan, Pennsylvania and Wisconsin — warranted further investigation.

That month, Kevin Moran, a retired Houston Chronicle reporter and president of the Galveston Island Democrats, filed a grievance to the Texas State Bar. In his filing, Mr. Moran contended that Mr. Paxton knew the lawsuit lacked legal merit and that any unelected lawyer would face disciplinary action for filing a frivolous lawsuit.

“Knowing that the national election had NOT been rigged or stolen, he acted in a way to stoke those baseless conspiracy theories nationwide,” Mr. Moran wrote.

The State Bar of Texas said it was prohibited by statute from discussing any pending matters, and the attorney general’s office did not reply to a request for comment.

Mr. Paxton’s campaign spokesman, Ian Prior, denounced the complaint as a “low-level stunt” and “frivolous allegation,” adding that “Democrats in Texas keep showing just how much they can’t stand election integrity.”

The complaint was initially dismissed by the state bar’s chief disciplinary counsel’s office but later revived by its Board of Disciplinary Appeals, which is appointed by the Texas Supreme Court. The 12-member board notified Mr. Moran in late May that it had granted his appeal after “finding that the grievance alleges a possible violation” of the Texas Disciplinary Rules of Professional Misconduct.

Mr. Moran, 71, said on Thursday that he had filed the complaint as “an upset citizen” — not as a Democratic official — because he was outraged by the attorney general’s lawsuit, particularly after a multitude of judges had upheld Mr. Biden’s victory.

“With his track record, I believe he should be disbarred,” he said of Mr. Paxton.

After receiving a letter from the state bar in January that dismissed his complaint, Mr. Moran filed an appeal that he said he was somewhat surprised to see granted.

Mr. Paxton, in his second term as the Texas attorney general, faces a tough re-election campaign against George P. Bush, the state’s land commissioner as well as the grandson of former President George H.W. Bush and the son of Jeb Bush, the former governor of Florida. Both candidates are vying for an endorsement from former President Donald J. Trump, who still wields influence over Texas Republicans.

Palmer Report, Opinion: The disbarment of House GOP stooge Mo Brooks, Shirley Kennedy, June 9, 2021. What can be said about Alabama Congressman Mo Brooks? Certainly, nothing good. He was one of the people who spoke at Trump’s insurrection rally on January 6. He was talking like such a tough guy, encouraging people to “take down names and kick ass.”

Now, he is whining like a baby about being served with Eric Swalwell’s lawsuit. Brooks is a typical bully who talks a big game until he is confronted. Then, he tucks his tail between his legs, lowers his head, and hopes no one notices him. We notice him alright — we notice him as one more person who has no right being in the seat of our government. Brooks is not the type of congressman anyone deserves, even Alabama.

bill palmer report logo headerAccording to CBS News, Brooks was served Sunday after some effort by Swalwell. Trump, Trump Jr., and Giuliani all waived service, but Brooks refused. After getting an extension from the court to get Brooks served, Swalwell’s process service perfected service on Brooks’ wife.

mo brooks oBrooks, right, claims that Swalwell’s process servers criminally trespassed on his property: “HORRIBLE Swalwell’s team committed a CRIME by unlawfully sneaking INTO MY HOUSE & accosting my wife!” Dude, that is how service works. The law allows service on an any adult residing in the residence, and the court accepts that as personal service. Though Brooks is probably not much of a lawyer, he is one, and he should know the rules of litigation. He is just mad because they finally got him. Swalwell is not the only one after Brooks.

Southern Poverty Law Center (“SPLC”) filed a bar complaint against Brooks in March with the Alabama Bar. The organization wants him disbarred for his involvement in the Capitol insurrection. The 203-page complaint accuses Brooks of “treason by levying war against the United States” for his words at the rally, which SPLC believes led directly to the insurrection. SPLC also accused Brooks of sedition, attempted overthrow of the government, incitement of a riot, and conspiracy to engage in treason. According to SPLC’s examination of reports and evidence, Brooks “may have committed at least eight state and federal crimes,” which, if proven, violate the Alabama Bar’s Rules of Professional Conduct.

While SPLC is unlikely to get Brooks disbarred, they can certainly create problems for him, which is the organization’s intent. Brooks’ defense to SPLC’s complaint is that his words have “been misrepresented by Democrats for political gain,” according to the Washington Times. He further claims that he was merely giving a “pep talk for the next election cycle.” What sense does this make? He is trying rev people up for an election that was, at the time, at least two and up to four years away. He gives the attendees too much credit. Most will not even remember what he said by the time the next election rolls around.

ny times logoNew York Times, Opinion: My Fellow Republicans, Stop Fearing This Dangerous and Diminished Man, Barbara Comstock, right, June 10, 2021 (print ed.). Republicans must authorize an investigation of Jan. 6.  When Donald Trump, the patron saint of sore losers, appeared at a Republican event on Saturday night and compared the 2020 election to a “third-world-country election like we’ve never seen before,” it wasn’t just another false rant from the former president. His words also described his attempted subversion of democracy in the run-up to the Jan. 6 riot at the Capitol.

barbara comstockConsider Mr. Trump’s remarks at his rally just before the attack: “If Mike Pence does the right thing, we win the election,” he said. “All Vice President Pence has to do is send it back to the states to recertify and we become president.”

Or consider Mr. Trump’s harassment of Georgia’s Republican secretary of state, Brad Raffensperger, with the request to “find” him votes, or his relentless harassment of other election officials and governors.

Many Republicans want to move on from the Jan. 6 attack. But how is that possible when the former president won’t move on from the Nov. 3 election and continues to push the same incendiary lies that resulted in 61 failed lawsuits before Jan. 6, led to an insurrection and could lead to yet more violence?

If you doubt that a threat of violence exists, look at the recent poll from the Public Religion Research Institute and the Interfaith Youth Core, which shows that a dangerous QAnon conspiracy theory is believed by 15 percent of our fellow Americans — including almost one in four Republicans, 14 percent of independents and even 8 percent of Democrats.

Republicans, instead of opposing a commission to investigate the events of Jan. 6, need to be at the forefront of seeking answers on the insurrection and diminishing the power of QAnon and the other conspiracy theories that Mr. Trump has fueled. While he is still popular within the party, Mr. Trump is a diminished political figure: 66 percent of Americans now hope he won’t run again in 2024, including 30 percent of Republicans. He is not the future, and Republicans need to stop fearing him. He will continue to damage the party if we don’t face the Jan. 6 facts head-on.

June 7

willard hotel

Proof via Substack, MAJOR BREAKING NEWS: Team Trump Had a Second Pre-Insurrection War Room, Seth Abramson, left, June 6-7, 2021. An investigation of who was in this second Insurrection Eve war seth abramson graphicroom has now begun.

Introduction: As this publication has exclusively and exhaustively detailed, on the eve of the January 6 insurrection Team Trump convened a 23-person war council at Trump International seth abramson proof logoHotel in D.C. to plot out—as attendees have since confessed—what would happen the following day. It is now clear that a second, contemporaneous pre-insurrection war council was held at a nearby Washington hotel and that it may well have been linked, through either phone or video conferencing, to the first.

This previously unreported news could significantly swell the size of Donald Trump’s pre-insurrection planning team, even as it remains possible (indeed, a possibility that has been extensively investigated here at Proof) that any remote conferencing that occurred the night before the January 6 insurrection also included the White House.

Seth Abramson, shown above and at right, is founder of Proof and is a former criminal defense attorney and criminal investigator who teaches digital journalism, seth abramson resized4 proof of collusionlegal advocacy, and cultural theory at the University of New Hampshire. A regular political and legal analyst on CNN and the BBC during the Trump presidency, he is a best-selling author who has published eight books and edited five anthologies.

Abramson is a graduate of Dartmouth College, Harvard Law School, the Iowa Writers' Workshop, and the Ph.D. program in English at University of Wisconsin-Madison. His books include a Trump trilogy: Proof of Corruption: Bribery, Impeachment, and Pandemic in the Age of Trump (2020); Proof of Conspiracy: How Trump's International Collusion Is Threatening American Democracy (2019); and Proof of Collusion: How Trump Betrayed America (2018).

supreme court resized 2021

washington post logoWashington Post, Supreme Court begins its sprint to finish — and a decision by one justice may be the most important, Robert Barnes, June 7, 2021 (print ed). As the court’s term winds down, decisions await on the future of the Affordable Care Act, gay and religious rights, and whether Justice Stephen G. Breyer will create an opening for President Biden to fill.

Supreme Court justices on Monday will begin the sprint to conclude their work this month, with pending decisions on issues as diverse as the fate of the Affordable Care Act and compensation for college athletes.

Stephen BreyerAlso on the docket: a voting-rights case that could determine how the court will decide future battles over the issue, a clash between a Catholic organization and a city’s anti-discrimination law, and whether school officials can discipline students for off-campus speech.

But perhaps the most consequential decision has no deadline and will be made by a court of one: 82-year-old Justice Stephen G. Breyer.

With Democrats taking over Washington, Breyer faces pressure to retire

The court’s senior liberal member has faced unprecedented pressure to step down from his lifetime appointment while a Democratic president is in the White House and the party still maintains its shaky majority in the Senate.

washington post logoWashington Post, Opinion, Something appears to be ‘simply, simply wrong’ at the Biden Justice Department, Fred Ryan (Washington Post publisher), June 7, 2021 (print ed). During the final days of the Trump administration, the attorney general used extraordinary measures to obtain subpoenas to secretly seize records of reporters at three leading U.S. news organizations. After this was reported last month, President Biden rightly decried this attack on the First Amendment, calling it “simply, simply wrong” and assuring Americans that it would not happen in his administration.

Unfortunately, new revelations suggest that the Biden Justice Department not only allowed these disturbing intrusions to continue — it intensified the government‘s attack on First Amendment rights before finally backing down in the face of reporting about its conduct.

After Biden took office, the department continued to pursue subpoenas for reporters’ email logs issued to Google, which operates the New York Times’ email systems, and it obtained a gag order compelling a Times attorney to keep silent about the fact that federal authorities were seeking to seize his colleagues’ records. Later, when the Justice Department broadened the number of those permitted to know about the effort, it barred Times executives from discussing the legal battle with the Times newsroom, including the paper’s top editor.

This escalation, on Biden’s watch, represents an unprecedented assault on American news organizations and their efforts to inform the public about government wrongdoing.

Last month, The Post learned of secret subpoenas authorized by President Donald Trump’s outgoing attorney general to obtain email information and home, cell and office telephone records of three Post reporters over a 3½-month span in 2017. We immediately requested an explanation and answers to several questions from the Justice Department as well as a meeting with the attorney general.

To date, no answers have been provided and the meeting has yet to take place. This delay is troubling. When asked about how the president’s assurances can be squared with his Justice Department’s behavior, White House press secretary Jen Psaki could offer no explanation. She subsequently released a statement disavowing White House knowledge of the actions that appear to have continued for several months during Biden’s presidency.

Throughout U.S. history, there have been inevitable differences between news organizations seeking to shed light on government activity and government officials seeking to preserve secrecy. As a society, we have become accustomed to these tensions. For the most part, they have been constructive and good for the health of our democracy. However, the egregious acts by the outgoing Trump Justice Department, and the apparent doubling down on them during the Biden administration, should alarm all Americans, regardless of political persuasion.

June 6

ny times logoNew York Times, Meadows Pressed Justice Dept. to Investigate Election Fraud Claims, Katie Benner, June 6, 2021 (print ed.). In Donald J. Trump’s final weeks in office, Mark Meadows, his chief of staff, repeatedly pushed the Justice Department to investigate unfounded conspiracy theories about the 2020 presidential election, according to newly uncovered emails provided to Congress, portions of which were reviewed by The New York Times.

mark meadows SmallIn five emails sent during the last week of December and early January, Mr. Meadows, right, asked Jeffrey A. Rosen, then the acting attorney general, to examine debunked claims of election fraud in New Mexico and an array of baseless conspiracies that held that Mr. Trump had been the actual victor. That included a fantastical theory that people in Italy had used military technology and satellites to remotely tamper with voting machines in the United States and switch votes for Mr. Trump to votes for Joseph R. Biden Jr.

None of the emails show Mr. Rosen agreeing to open the investigations suggested by Mr. Meadows, and former officials and people close to him said that he did not do so. An email to another Justice Department official indicated that Mr. Rosen had refused to broker a meeting between the F.B.I. and a man who had posted videos online promoting the Italy conspiracy theory, known as Italygate.

washington post logoWashington Post, Trump’s chief of staff pushed Justice Dept. to investigate baseless election fraud claims, Karoun Demirjian and Josh Dawsey, June 6, 2021 (print ed.). Former White House chief of staff Mark Meadows sent a series of emails to the acting attorney general in the waning weeks of Donald Trump’s presidency, as part of a campaign to strong-arm the Justice Department into investigating Trump’s spurious claims of widespread election fraud.

Meadows’s emails, first disclosed Saturday by the New York Times, demonstrate how the former president’s determination to overturn his election defeat was not just a personal obsession or localized jeffrey rosento his campaign, but an official project of the Trump White House. Attempts to reach Meadows directly were unsuccessful.

The brief but tumultuous tenure of acting attorney general Jeffrey Rosen, left, who led the Justice Department for only a month after his predecessor William P. Barr departed the administration in late December, was punctuated by the relentless campaign to legitimize Trump’s claims of a “stolen” election. Rosen was pressured to open an official investigation of voter fraud despite a lack of evidence — and even as Trump contemplated firing Rosen and replacing him with another Justice Department official seen as amenable to helping undermine the election results.

Rosen has firmly and repeatedly stated that, under his watch, no special prosecutors were appointed to look into the election and no statements questioning its results were made. But to date, he has refused to discuss the pressure he endured from the White House — or detail his conversations with Trump in the weeks ahead of the insurrection.

ny times logoNew York Times, Capitol Riot Fallout: At Once Diminished and Dominating, Trump Prepares for His Next Act, Annie Karni and Maggie Haberman, June 6, 2021 (print ed.). The former president speaks on Saturday to the North Carolina Republican convention, as he resumes political speeches and rallies.

Donald J. Trump, the former president of the United States, commutes to New York City from his New Jersey golf club to work out of his office in Trump Tower at least once a week, slipping in and out of Manhattan without attracting much attention.

The place isn’t as he left it. Many of his longtime employees are gone. So are most of the family members who once worked there with him and some of the fixtures of the place, like his former lawyer Michael D. Cohen, who have since turned on him. Mr. Trump works there, mostly alone, with two assistants and a few body men.

His political operation has also dwindled to a ragtag team of former advisers who are still on his payroll, reminiscent of the bare-bones cast of characters that helped lift a political neophyte to his unlikely victory in 2016. Most of them go days or weeks without interacting with Mr. Trump in person.

But as he heads to the North Carolina Republican convention on Saturday night, in what is billed as the resumption of rallies and speeches, Mr. Trump is both a diminished figure and an oversized presence in American life, with a remarkable — and many say dangerous — hold on his party.

Even without his favored megaphones and the trappings of office, Mr. Trump looms over the political landscape, animated by the lie that he won the 2020 election and his own fury over his defeat. And unlike others with a grievance, he has been able to impose his anger and preferred version of reality on a substantial slice of the American electorate — with the potential to influence the nation’s politics and weaken faith in its elections for years to come.

Still blocked from Twitter and Facebook, he has struggled to find a way to influence news coverage since leaving office and promote the fabrication that the 2020 election was stolen from him.

Mr. Trump, who White House officials said watched with pleasure as his supporters stormed the Capitol and disrupted the Jan. 6 certification of the Electoral College vote, has told several people he believes he could be “reinstated” to the White House this August, according to three people familiar with his remarks. He has been echoing a theory promulgated by supporters like Mike Lindell, the chief executive of MyPillow, and Sidney Powell, the lawyer being sued for defamation by election machine companies for spreading conspiracy theories about the safety of their ballots.

President Biden’s victory, with more than 80 million votes, was certified by Congress once the Jan. 6 riot was contained. There is no legal mechanism for reinstating a president, and the efforts by Republicans in the Arizona Senate to recount the votes in the state’s largest county have been derided as fake and inept by local Republican officials, who say the result is a partisan circus that is eroding confidence in elections.

June 2

ny times logoNew York Times, Trump Administration Secretly Seized Phone Records of Times Reporters, Charlie Savage and Katie Benner, June 2, 2021. The admission by the Biden Justice Department followed similar recent disclosures to The Washington Post and CNN.

The Trump Justice Department secretly seized the phone records of four New York Times reporters spanning nearly four months in 2017 as part of a leak investigation, the Biden administration disclosed on Wednesday.

It was the latest in a series of revelations about the Trump administration secretly obtaining reporters’ communications records in an effort to uncover their sources. Last month, the Biden Justice Department disclosed Trump-era seizures of the phone logs of reporters who work for The Washington Post and the phone and email logs for a CNN reporter.

Dean Baquet, the executive editor of The Times, condemned the action by the Trump administration.

“Seizing the phone records of journalists profoundly undermines press freedom,” he said in a statement. “It threatens to silence the sources we depend on to provide the public with essential information about what the government is doing.”

Last month, after the disclosures about the seizures of communications records involving Post and CNN reporters, President Biden said he would not allow the department to take such a step during his administration, calling it “simply, simply wrong.”

Referring to that declaration, Mr. Baquet added: “President Biden has said this sort of interference with a free press will not be tolerated in his administration. We expect the Department of Justice to explain why this action was taken and what steps are being taken to make certain it does not happen again in the future.”

Anthony Coley, a Justice Department spokesman, said that law enforcement officials obtained the records in 2020, and added that “members of the news media have now been notified in every instance” of leak investigations from the 2019-2020 period in which their records were sought.

The department informed The Times that law enforcement officials had seized phone records from Jan. 14 to April 30, 2017, for four Times reporters: Matt Apuzzo, Adam Goldman, Eric Lichtblau and Michael S. Schmidt. The government also secured a court order to seize logs — but not contents — of their emails, it said, but “no records were obtained.”

The Justice Department did not say which article was being investigated. But the lineup of reporters and the timing suggested that the leak investigation related to classified information reported in an April 22, 2017, article the four reporters wrote about how James B. Comey, then the F.B.I. director, handled politically charged investigations during the 2016 presidential election.

Discussing Mr. Comey’s unorthodox decision to announce in July 2016 that the F.B.I. was recommending against charging Hillary Clinton in relation to her use of a private email server to conduct government business while secretary of state, the April 2017 article mentioned a document obtained from Russia by hackers working for Dutch intelligence officials. The document, whose existence was classified, was said to have played a key role in Mr. Comey’s thinking about the Clinton case.

The document has been described as a memo or email written by a Democratic operative who expressed confidence that the attorney general at the time, Loretta Lynch, would keep the Clinton investigation from going too far. Russian hackers had obtained the document, but it is apparently not among those that Russia sent to WikiLeaks, intelligence officials concluded.

Mr. Comey was said to be worried that if Ms. Lynch were to be the one who announced a decision not to charge Mrs. Clinton, and Russia then made the document public, it would be used to raise doubts about the independence of the investigation and the legitimacy of the outcome.

The Times reported in January 2020 that Trump-era investigators had pursued a leak investigation into whether Mr. Comey had been the source of the unauthorized disclosure in that 2017 article.

Mr. Comey had been under scrutiny since 2017, after Mr. Trump fired him as the director of the F.B.I. After his dismissal, Mr. Comey engineered — through his friend Daniel Richman, a Columbia University law professor — the disclosure to The Times of accounts of several of his conversations with the president related to the Russia investigation.

The inquiry into Mr. Comey, according to three people briefed on that investigation, was eventually code-named Arctic Haze. Its focus was said to evolve over time, as investigators shifted from scrutinizing whether they could charge Mr. Comey with a crime for disclosing his conversations with Mr. Trump, to whether he had anything to do with the disclosure of the existence of the document.

As part of that effort, law enforcement officials had seized Mr. Richman’s phone and computer, according to a person familiar with the matter. They are said to have initially searched them for material about Mr. Comey’s conversations with Mr. Trump, and later obtained a court’s permission to search them again, apparently about the Russia document matter.

Separately, according to a person briefed on the investigation, the F.B.I. is also said to have subpoenaed Google in 2020, seeking information relevant to any emails between Mr. Richman and The Times. A spokesman for Google did not respond to a request for comment.

But by November 2020, some prosecutors felt that the F.B.I. had not found evidence that could support any charges against Mr. Comey, and they discussed whether the investigation should be closed.

At the beginning of this year, prosecutors were informed that the F.B.I. was not willing to close the case — in part because agents still wanted to interview Mr. Comey, according to a person familiar with the F.B.I.’s inquiry. Interviewing the subject of an investigation is typically considered a final step before closing a matter or bringing charges.

Last month, the F.B.I. asked Mr. Comey’s lawyer whether he would be willing to sit down for an interview, a request that Mr. Comey declined, according to a person familiar with the case.

Starting midway through the George W. Bush administration, and extending through the Barack Obama and Donald Trump administrations, the Justice Department became more aggressive about pursuing criminal leak investigations.

June 1

washington post logoWashington Post, Opinion: A frantic warning from 100 leading experts: Our democracy is in grave danger, Greg Sargent, right, June 1, 2021. Democrats can’t say they weren’t warned. With yet another GOP effort to restrict voting underway in Texas, President Biden is now calling on Congress to act in the face of the Republican “assault on democracy.” Importantly, Biden cast that attack as aimed at greg sargent“Black and Brown Americans,” meriting federal legislation in response.

That is a welcome escalation. But it remains unclear whether 50 Senate Democrats will ever prove willing to reform or end the filibuster, and more to the point, whether Biden will put real muscle behind that cause. If not, such protections will never, ever pass.

Now, in a striking intervention, more than 100 scholars of democracy have signed a new public statement of principles that seeks to make the stakes unambiguously, jarringly clear: On the line is nothing less than the future of our democracy itself.

“Our entire democracy is now at risk,” the scholars write in the statement, which I obtained before its release. “History will judge what we do at this moment.”

And these scholars underscore the crucial point: Our democracy’s long-term viability might depend on whether Democrats reform or kill the filibuster to pass sweeping voting rights protections.

american flag upside down distress“We urge members of Congress to do whatever is necessary — including suspending the filibuster — in order to pass national voting and election administration standards,” the scholars write, in a reference to the voting rights protections enshrined in the For the People Act, which passed the House and is before the Senate.

What’s striking is that the statement is signed by scholars who specialize in democratic breakdown, such as Pippa Norris, Daniel Ziblatt and Steven Levitsky. Other well-known names include Francis Fukuyama and Jacob Hacker.

“We wanted to create a strong statement from a wide range of scholars, including many who have studied democratic backsliding, to make it clear that democracy in America is genuinely under threat,” Lee Drutman, senior fellow at New America and a leading organizer of the letter, told me.

“The playbook that the Republican Party is executing at the state and national levels is very much consistent with actions taken by illiberal, anti-democratic, anti-pluralist parties in other democracies that have slipped away from free and fair elections,” Drutman continued.

Among these, the scholars note, are efforts by GOP-controlled state legislatures everywhere to restrict access to voting in ways reminiscent of tactics employed before the United States became a real multiracial democracy in the mid-1960s:orse, June 1, 2021. Eduardo Valdivia was indicted by a Montgomery County grand jury in the December shooting that occurred on a moving Red Line train. Officials have said a “verbal exchange” preceded the shooting.

An FBI agent who shot another passenger during a confrontation aboard a moving subway train just outside Washington was indicted on attempted murder and other counts, according Maryland court records unsealed Tuesday morning.

FBI logoEduardo Valdivia, 37, was also charged with first-degree assault, reckless endangerment, and use of a firearm in the commission of a felony stemming from the early-morning encounter six months ago on a southbound Metro Red Line train. The passenger who was struck was hospitalized with gunshot wounds but survived.

Valdivia was booked into the Montgomery County Detention Center Tuesday morning, according to online records and a jail official, after turning himself in. He was expected to appear in court later in the day to have the conditions of his bond reviewed. No trial date has been set.

Law enforcement officials have described Valdivia’s actions as an extreme overreaction to a stranger with a history of aggressive panhandling who confronted the agent but did not physically assault him. There has been no indication that the man was armed.

ny times logoNew York Times, Retired F.B.I. Agent Is Accused of Swindling Texas Woman Out of $800,000, Azi Paybarah, June 1, 2021 (print ed.). The former agent told the woman she was on “secret probation” over drug crimes and at one point proposed marriage, federal prosecutors said.

A retired F.B.I. agent in Texas has been indicted on fraud charges and accused of conning a woman out of $800,000 by convincing her that she was on “secret probation” for drug crimes and needed to pay him and an accomplice for their work to “mentor” and “supervise” her, federal prosecutors said on Friday.

FBI logoThe man, William Roy Stone Jr., 62, who had retired from the Dallas field office of the F.B.I. about a month before the scam began, even proposed marrying the victim and said he would try to discharge her from probation, prosecutors said.

“Stone allegedly conned, threatened and stole from his victim, exploiting her trust in law enforcement for his own financial gain,” Cloey C. Pierce, special agent in charge of the Justice Department’s inspector general’s office in Dallas, said in a statement.

Gregg Gallian, a lawyer for Mr. Stone, said in a statement on Sunday, “Mr. Stone will clear his name in the courtroom and, in doing so, will bring the actual facts of this case to light.” Mr. Gallian added, “There is much more to this story.”

According to a statement from prosecutors, Mr. Stone was indicted on Tuesday by a grand jury on seven counts of wire fraud, one count of wire fraud conspiracy, one count of impersonating a federal officer, “one count of engaging in monetary transactions in property derived from unlawful activity” and one count of giving false statements to law enforcement.

Mr. Stone retired from the F.B.I. office in Dallas in October 2015. At some point the following month, he was in contact with a woman in Granbury, Texas, southwest of Fort Worth, identified only as “C.T.” Mr. Stone told her she was on “secret probation” for drug crimes in “Judge Anderson’s court in Austin, Texas,” and that this court had assigned Mr. Stone and another person, who was not identified, to “mentor” and “supervise” her.

As a part of this probation, prosecutors said, Mr. Stone told the woman that she was obligated to pay the expenses he incurred traveling to Austin to speak with the judge about her probation. Mr. Stone also told C.T. that she had to report all of her activities, and assets, to him.

Mr. Stone also told the woman that she was forbidden to disclose her probation status to anyone, and that if she did not comply with these terms, she could be imprisoned and lose custody of her children, prosecutors said.

Mr. Stone’s scheme was effective, prosecutors said. The victim gave him “over $800,000 in money and property,” according to the indictment. Prosecutors said property linked to Mr. Stone’s dealings with the woman included a home on Kennedy Drive in Colleyville, Texas, a 2017 Toyota Tacoma and a 2016 Mercedes CLS.

 ny times logoNew York Times, As Harvard Case Looms at Supreme Court, Study Tests Value of Diversity, Adam Liptak, June 1, 2021 (print ed.). After prestigious law reviews adopted diversity policies for choosing student editors, researchers found, the articles they published were cited more often.

The Supreme Court is set to consider next week whether to hear a challenge to Harvard’s race-conscious admissions program. If the justices take the case — a reasonably safe bet — affirmative action in higher education, which has survived several close calls at the court, will again be in peril.

harvard logoIts main vulnerability will be the contested and largely untested proposition that diversity enhances education, and that students of different backgrounds benefit from learning from one another.

The court has said that idea is the sole permissible rationale for taking account of race in admissions decisions. But members of what is now a six-justice conservative bloc have mocked the notion and questioned how it could be subjected to meaningful judicial scrutiny.

“What unique perspective does a minority student bring to a physics class?” Chief Justice John G. Roberts Jr. asked at a 2015 argument over the constitutionality of an affirmative action program at the University of Texas.

The next year, the court upheld the program by a 4-to-3 vote. (Justice Antonin Scalia’s seat was vacant after his death that February, and Justice Elena Kagan was recused.) In dissent, Justice Samuel A. Alito Jr., joined by the chief justice and Justice Clarence Thomas, said that there was no way of knowing whether diversity was working.

The university’s main argument, Justice Alito wrote, “is that merely invoking ‘the educational benefits of diversity’ is sufficient and that it need not identify any metric that would allow a court to determine whether its plan is needed to serve, or is actually serving, those interests.



May 24

washington post logoWashington Post, Investigation: Commerce Dept. security unit became counter-intelligence-like operation, Shawn Boburg, May 24, 2021. An obscure security unit tasked with protecting the Commerce Department’s officials and facilities has evolved into something more akin to a counterintelligence operation that collected information on hundreds of people inside and outside the department, a Washington Post examination found.

The Investigations and Threat Management Service (ITMS) covertly searched employees’ offices at night, ran broad keyword searches of their emails trying to surface signs of foreign influence and scoured Americans’ social media for critical comments about the census, according to documents and interviews with five former investigators.

In one instance, the unit opened a case on a 68-year-old retiree in Florida who tweeted that the census, which is run by the Commerce Department, would be manipulated “to benefit the Trump Party!” records show.

commerce dept logoIn another example, the unit searched Commerce servers for particular Chinese words, documents show. The search resulted in the monitoring of many Asian American employees over benign correspondence, according to two former investigators.

The office “has been allowed to operate far outside the bounds of federal law enforcement norms and has created an environment of paranoia and retaliation at the Department,” John Costello, a former deputy assistant secretary of intelligence and security at Commerce in the Trump administration, said in a statement for this story.

ITMS “rests on questionable legal authority and has suffered from poor management and lack of sufficient legal and managerial oversight for much of its existence,” Costello said.

Concerns have long simmered internally about the Commerce unit, which was led for more than a decade by career supervisor George D. Lee.

The unit’s tactics appear as if “someone watched too many ‘Mission Impossible’ movies,” said Bruce Ridlen, a former supervisor.

Investigators lodged complaints with supervisors, and the department’s internal watchdog launched multiple inquiries, documents show. In an internal memo laying out his concerns about the unit, Costello described an inspector general’s investigation that he said had found it had no legal authority to conduct criminal investigations.

Incoming Commerce leaders from the Biden administration ordered ITMS to pause all criminal investigations on March 10, and on May 13 ordered the suspension of all activities after preliminary results of an ongoing review, according to a statement issued by department spokeswoman Brittany Caplin.

Proof via Substack, Major New Revelations About Donald Trump's January 5 Pre-Insurrection War Council (Part III), Seth Abramson, left, May 23-24, 2021. Introduction to Part III: The most chilling sentence seth abramson graphicinAli Alexander’s chilling January 13 interview with the chillingly named Church Militant of Michigan is this one: “We [Stop the Steal] own all of [the government of] Arizona except katie hobbsfor the Secretary of State [Katie Hobbs, right].

”In the interview, Alexander credits one man with ensuring that Stop the Steal could take over Arizona’s government: Arizona state representative and Oath Keeper Mark Finchem, the man Trump praised in Georgia on January 4 as a “great political leader.”

As Oath Keepers like Finchem get arrested by the dozens, and Finchem’s presence at the Capitol in a golf cart becomes national news, and Finchem faces the possibility of a state ethics investigation and there is a steady drumbeat of calls for his resignation or expulsion from not just Arizona Democrats but even journalists, it is becoming harder and harder for Finchem to find reliable allies in Phoenix.

A notable exception is a fellow Arizona Republican state representative who is, like Finchem, a self-described Oath Keeper: Wendy Rogers. Rogers, who spent January 6 at a massive Stop the Steal rally in Phoenix, watched with glee on January 4 as the President of the United States name-checked her friend Mark Finchem.

seth abramson proof logoProof via Substack, Major New Revelations About Donald Trump's January 5 Pre-Insurrection War Council (Part II), Seth Abramson, left, May 23-24, 2021. Introduction to Part II: The mystery of the strange conclave at Trump's private residence at Trump International Hotel is unraveling — revealing new evidence about the Oath Keepers, U.S. senators likely in attendance, and more.

These are Parts II and III of a three-part exposé on the pre-insurrection war council held on January 5, 2021, at Donald Trump’s private residence in Trump International Hotel in Washington. Proof via Substack, Major New Revelations About Donald Trump's January 5 Pre-Insurrection War Council (Part I), Seth Abramson.

Seth Abramson, shown above and at right, is founder of Proof and is a former criminal defense attorney and criminal investigator who teaches digital journalism, seth abramson resized4 proof of collusionlegal advocacy, and cultural theory at the University of New Hampshire. A regular political and legal analyst on CNN and the BBC during the Trump presidency, he is a best-selling author who has published eight books and edited five anthologies.

Abramson is a graduate of Dartmouth College, Harvard Law School, the Iowa Writers' Workshop, and the Ph.D. program in English at University of Wisconsin-Madison. His books include a Trump trilogy: Proof of Corruption: Bribery, Impeachment, and Pandemic in the Age of Trump (2020); Proof of Conspiracy: How Trump's International Collusion Is Threatening American Democracy (2019); and Proof of Collusion: How Trump Betrayed America (2018).

Wayne Madsen Report, Investigative Commentary: Be wary of the 6th of January -- a coup by any other name, Wayne Madsen, left, May 24, 2021. The right-wing coup continues as a "rolling putsch." wayne madsen may 29 2015 cropped SmallEven without a congressionally-mandated January 6 Commission, we are slowly learning more about the premeditated attempt by Donald Trump and members of his administration and key support groups to overthrow the government of the United States on January 6, 2021.

wayne madesen report logoThanks to Washington Metropolitan Police memos hacked into and released by a ransomware group and a disclosure by an aide to Representative Carlos Gimenez (R-FL), it is now known that the Boogaloo Bois and members of the Qanon cult were planning on attacking other targets in Washington, DC on and after January 6 -- and that among these targets was the FBI Headquarters on Pennsylvania Avenue.

Alex Ferro, an aide to Gimenez, reported to both the FBI and US Capitol Police that he overheard one Trump supporter, who was dressed in military-type tactical gear, talking about seizing control of the FBI Building on Pennsylvania Avenue on the morning of January 6.

franklin d rooseveltRepublican leaders in the Congress are adamantly opposed to a January 6 Commission with the power to subpoena those with direct knowledge of what is beginning to look like a pre-planned "rolling coup" that extended from prior to January 6 through January 20.

The January coup attempt by Trump loyalists came the closest to an overthrow of the government since the aborted 1933 right-wing "Wall Street bankers" coup against President Franklin D. Roosevelt, right. That plot was disclosed by retired Marine Corps General Smedley Butler.

 djt impeachment graphic

state dept map logo Small

washington post logoWashington Post, Key impeachment witness who accused Trump of quid pro quo sues Pompeo, U.S. for $1.8 million, John Hudson, May 24, 2021. President Donald Trump’s former ambassador to the European Union, Gordon Sondland, right, is suing former secretary of state Mike Pompeo and the U.S. government for $1.8 million to compensate for legal fees incurred during the 2019 House impeachment probe.

gordon sondland oThe suit, filed Monday in federal court in the District of Columbia, alleges that Pompeo reneged on his promise that the State Department would cover the fees after Sondland delivered bombshell testimony accusing Trump and his aides of pressuring the government of Ukraine to investigate then presidential candidate Joe Biden and his son Hunter in exchange for military aid.

Sondland, a Portland hotel magnate appointed by Trump to serve as ambassador, became a key witness of the impeachment probe because of his firsthand knowledge of conversations with Trump, his attorney Rudy Giuliani and senior Ukrainian officials — as well as his punchy answers, affable demeanor and colorful language.

The allegations in the suit also offer new details on Sondland’s rapid devolution from Trump insider to political outcast in the span of days.

mike pompeo portraitThe complaint alleges that Pompeo, left, told Sondland that government lawyers would not be made available to represent him but that if he hired his own counsel, his attorney fees would be covered by the U.S. government. Top aides to Pompeo also acknowledged this commitment, the suit alleges, but “everything changed” after Sondland delivered his testimony alleging a “quid pro quo” and then refused to resign despite a request from one of Pompeo’s most trusted aides, Ulrich Brechbuhl.

“Ambassador Sondland confirmed he would not resign because he did not do anything improper. After that, everything changed. Ambassador Sondland did not receive his attorneys’ fees, notwithstanding the promises from the State Department that the attorneys’ fees would be paid,” the suit alleges.Sondland is demanding that the U.S. government cover the fees or Pompeo pay out of his own pocket. The suit argues that Pompeo’s actions as secretary of state should not be subject to governmental immunity because the promise “was self-serving, made entirely for personal reasons for his own political survival in the hopes that Ambassador Sondland would not implicate him or others by his testimony.”

In the past year, Sondland’s businesses empire, including several hotels in Portland, was badly hit by the coronavirus pandemic, which decimated tourism across the country. Before being tapped by Trump for the ambassador position, Sondland donated $1 million to the president’s inaugural committee.

washington post logoWashington Post, Lawmakers worry the toxic mood on Capitol Hill will follow them home, Marianna Sotomayor and Paul Kane, May 24, 2021 (print ed.). House members head out of Washington for three weeks, anger at each other is turning into fear of what could await them back home.

Tensions among lawmakers have been running high since the Jan. 6 attack on the Capitol by a pro-Trump mob and have only increased in recent weeks. The two parties are clashing over how to investigate what transpired that day and whether, or how, to ease precautions put in place to keep members and staff safe during the pandemic.

U.S. House logoThe tenor of the debate has been highly personal, with Democrats expressing a sense of distrust toward their Republican colleagues with regard to their personal safety and health, while many GOP members are accusing Democrats of using the tragedies of the attack and the pandemic to score political points.

Now, several Democrats said they are concerned that the toxic political culture on Capitol Hill could greet them back home as their communities open up, with the pandemic waning and vaccination rates rising, and there is pressure to hold more in-person events.

“Obviously we’re going to return to more outward-facing live, in-person things and I’m thrilled about that. I want to do that,” said Rep. Susan Wild (D-Pa.). “I think we’re going to have to be very cautious. I think there’s going to have to be some ramped-up security. Hopefully it’s going to be low key, I don’t want people to feel like they’re walking into an armed event, but I imagine doing a lot of events in parks, in the daytime, staffers and local police are around.”

Bitter anger over Jan. 6 riots lingers in the House, prompting a week of tense standoff and legislative stalemate

Several Democratic members have privately expressed their concerns to leadership about security back home as threats have risen, according to people familiar with the discussions who spoke on the condition of anonymity to describe the conversations. Some of these Democrats said they have paid out of their own pocket to increase security at their district offices or install security systems in their homes out of an abundance of caution.

May 20

washington post logoWashington Post, Texas governor signs bill to ban abortion as early as six weeks into pregnancy, Timothy Bel, May 20, 2021 (print ed.). By banning abortion after the six-week mark, many women in Texas who are not even aware they are pregnant will not be allowed to get the procedure performed in the state.

Greg Abbott CustomTexas Gov. Greg Abbott (R), right, on Wednesday signed legislation banning abortions in the state as early as six weeks into a pregnancy, a measure slammed by critics as one of the strictest and most extreme measures in the nation and hailed by antiabortion supporters as a landmark achievement.

The Texas bill known as S.B. 8, described as a “heartbeat ban” abortion measure, prohibits the procedure the moment a fetal heartbeat has been detected. By banning abortion after the six-week mark, many women in Texas who are not even aware they are pregnant will not be allowed to get the procedure done in the state. The bill, which goes into effect Sept. 1, does not include exceptions for women impregnated as a result of rape or incest, but offers a provision for medical emergencies.

Abbott, who had publicly offered his support of the bill, celebrated what he deemed a victory for Texans while surrounded by Republicans gathered to watch him sign the proposal in Austin: “The heartbeat bill is now law in the Lone Star State.”

supreme court resized 2021

ny times logoNew York Times, Supreme Court Case Throws Abortion Into 2022 Election Picture, Carl Hulse and Lisa Lerer, May 20, 2021. Supporters and opponents of abortion rights say a major ruling just before the midterm elections could upend political calculations for the two parties.

Motivated in part by a belief that the Supreme Court (shown above) will give them new latitude to restrict access, Republican-dominated states continue to adopt strict new legislation, with Gov. Greg Abbott of Texas signing into law on Wednesday a prohibition on abortions after as early as six weeks. The law, sure to face legal challenges, is one of more than 60 new state-level restrictions enacted this year, with many more pending.

With the Supreme Court ruling likely to come next year — less than six months before midterm elections that will determine control of Congress and the future of President Biden’s agenda — the court’s expanded conservative majority has injected new volatility into an already turbulent political atmosphere, leaving both parties to game out the potential consequences.

Republicans had already shown that they intended to take aim at Democrats over social issues, and abortion will only amplify the culture wars.

Nearly all agree that the latest fight over Roe, which has been building for years, is certain to have significant political repercussions. Conservative voters are traditionally more energized than liberals about the abortion debate, and for many of them it has been the single issue spurring voter turnout.

But Democrats, likely to be on the defensive given their current hold on the White House and Congress, say a ruling broadly restricting abortion rights by a court whose ideological makeup has been altered by three Trump-era appointees could backfire on Republicans and galvanize women.

ny times logoNew York Times, Opinion: The Free Ride May Soon Be Over for Anti-Abortion Politicians, Linda Greenhouse (shown at right on the cover of her memoir), May 20, 2021. Do I think the court will use this case to permit states to ban abortion entirely? No, not directly and not this soon; there’s no need for the new majority, handpicked for that very purpose, to go that far this fast. The question the court linda greenhouse cover just a journalisthas agreed to answer, as framed by the state’s petition, “Whether all previability prohibitions on elective abortions are unconstitutional,” suggests but doesn’t require an all-or-nothing response.

However, as President Biden might say, here’s the deal: Viability has been the essential firewall protecting the right to abortion. As the law of abortion currently stands, states can require onerous waiting periods, misleading “informed consent” scripts, needless ultrasound exams — anything to make abortion as burdensome, expensive and stigmatizing as possible.

But what a state can’t do at the end of the day is actually prevent a woman with the resources and will to get to one of the diminishing number of providers (the clinic that sued to block the Mississippi law is the only one in that state) from terminating her pregnancy.

Once the viability firewall is breached, it’s hard to see what limiting principle the new majority might invoke even if so inclined. Ninety percent of abortions take place in the first 13 weeks of pregnancy. What’s the difference between 15 weeks and 13, or 11, or 10? Mississippi offers as a limiting principle the claim that at 15 weeks a fetus is “likely capable of conscious pain perception.” But as a compilation of peer-reviewed medical articles published in 2015 by FactCheck.org concluded, scientific evidence is lacking even for the more common assertion that fetuses are capable of feeling pain at 20 weeks.

Limiting principles usually matter a great deal at the Supreme Court, and it’s common during oral argument for justices to demand that lawyers articulate one. The justices need to know: “If we buy what you’re trying to sell us, exactly what are we buying? What’s the next case in line after yours?”

On Wednesday, Gov. Greg Abbott of Texas signed a “heartbeat” bill that bans abortion as early as six weeks’ gestation. Not to be outdone, voters in Lubbock, Texas, population 260,000, earlier this month declared the city an abortion-free zone, leading Planned Parenthood, which operates the city’s sole abortion clinic within 300 miles, to file a lawsuit to stop the ordinance from going into effect.

Compared to those measures, Mississippi’s 15-week ban may look almost moderate, and a Supreme Court decision upholding only the Mississippi law may be greeted in some prochoice corners with relief. That would reflect a serious misunderstanding.

If there is any good news to salvage from the court’s announcement this week, it is this: the free ride that anti-abortion politicians have enjoyed may be coming to a crashing end.

Ever since the 2010 election ushered new Republican majorities into state legislatures, politicians there have been able to impose increasingly severe abortion restrictions without consequence, knowing that the lower courts would enjoin the laws before they took effect and save the people’s representatives from having to own their actions.

Last fall, in each of four nationwide polls, including one conducted for Fox News, more than 60 percent of registered or likely voters said they did not want the Supreme Court to overturn “Roe v. Wade.” I put the case in quotes because that’s how the pollsters asked the question; although Roe obviously carries strong symbolic meaning, the 1973 decision is in many respects no longer the law.

For the cynical game they have played with those lives, politicians have not paid a price. Now perhaps they will. Of course, women themselves will pay a heavy price as this new reality sorts itself out, particularly women with low incomes who now make up the majority of abortion patients.

And there’s another price to be paid as justices in the new majority turn to the mission they were selected for. The currency isn’t votes, but something even more important and harder to win back: the institutional legitimacy of the Supreme Court of the United States.

There’s no free ride for the court either.

May 17

washington post logoWashington Post, Justices to review law that advocates see as path to diminish Roe v. Wade, Robert Barnes, May 17, 2021. The Mississippi law would ban almost all abortions after 15 weeks, but a district judge and a panel of the U.S. Court of Appeals for the 5th Circuit said that clashes with Supreme Court precedents.

The Supreme Court on Monday said it will review a restrictive Mississippi abortion law that opponents of the procedure say provides a clear path to diminish Roe v. Wade’s establishment of the right of women to choose an abortion.

Abortion opponents for months have urged the court’s conservatives to seize the chance to reexamine the 1973 precedent. Mississippi is one among many Republican-led states that have passed restrictions that conflict with the court’s precedents protecting a woman’s right to choose before fetal viability.

In accepting the case, the court said it would examine whether “all pre-viability prohibitions on elective abortions are unconstitutional.” That has been a key component of the court’s jurisprudence.

The Mississippi law would ban almost all abortions after 15 weeks of pregnancy. But both a district judge and a panel of the U.S. Court of Appeals for the 5th Circuit said that could not be squared with decades of Supreme Court precedents.

May 6

ny times logoNew York Times, Opinion: Will the Supreme Court Write Guantánamo’s Final Chapter? Linda Greenhouse (shown at right on the cover of her memoir), May 6, 2021. The Guantánamo story may finally linda greenhouse cover just a journalistbe coming to an end, and as the 20th anniversary of the 9/11 attacks approaches, the question is who will write the last chapter, the White House or the Supreme Court?

President Biden has vowed to close the island detention center, through which nearly 800 detainees have passed since it opened in early 2002 to house some of the “worst of the worst,” in the words of the Pentagon at the time. Many of the detainees turned out to be junior jihadists, if that; bounty hunters in Afghanistan had turned over to the eager Americans pretty much anyone they could find, including a hapless group of 17 Uyghurs who were fleeing the Chinese and meant the United States no harm. The inmate count is now down to 40.

President Barack Obama also wanted to close Guantánamo but couldn’t manage to do it. Circumstances are different now: Not only is the “forever war” in Afghanistan about to end, but politicians won’t find it easy to scare voters with images of the older, wobbly detainees who now make up much of the Guantánamo population. Still, Mr. Biden is likely to need cooperation from Congress to transfer any of the facility’s detainees to the U.S. mainland.

President Biden may get lucky. But in the meantime, a case is on a path to the Supreme Court that will give the justices a chance to redeem the court’s own failed Guantánamo promises.

May 4


Attorney Gen. William Barr, center, announces his version of the findings of Special Counsel Robert Mueller, flanked by aides Rod Rosenstein and Edward O'Callaghan (C-SPAN photo).

 Attorney Gen. William Barr, center, announces his version of the findings of Special Counsel Robert Mueller in 2019, flanked by aides Rod Rosenstein and Edward O'Callaghan, while keeping the text of the Mueller Report largely secret for weeks while news coverage focused on the Barr verbal version, supplemented by his written excerpts (C-SPAN photo).

ny times logoNew York Times, Judge Says Barr Misled on How His Justice Dept. Viewed Trump’s Actions, Michael S. Schmidt, May 4, 2021. Judge Amy Berman Jackson said in a ruling that the misleading statements were similar to others that William P. Barr, the former attorney general, had made about the Mueller investigation.

A federal judge in Washington accused the Justice Department under Attorney General William P. Barr of misleading her and Congress about advice he had received from top department officials on whether President Donald J. Trump should have been charged with obstructing the Russia investigation and ordered that a related memo be released.

Judge Amy Berman Jackson, shown in a file photo, of the United States District Court in Washington said in a ruling late Monday that the Justice Department’s obfuscation appeared to be part of a pattern in which top amy berman jacksonofficials like Mr. Barr were untruthful to Congress and the public about the investigation.

The department had argued that the memo was exempt from public records laws because it consisted of private advice from lawyers whom Mr. Barr had relied on to make the call on prosecuting Mr. Trump. But Judge Jackson ruled that it contained strategic advice, and that Mr. Barr and his aides already understood what his decision would be.

Justice Department log circular“The fact that he would not be prosecuted was a given,” Judge Jackson wrote of Mr. Trump.

She also singled out Mr. Barr for how he had spun the investigation’s findings in a letter summarizing the 448-page report before it was released, which allowed Mr. Trump to claim he had been exonerated.

“The attorney general’s characterization of what he’d hardly had time to skim, much less study closely, prompted an immediate reaction, as politicians and pundits took to their microphones and Twitter feeds to decry what they feared was an attempt to hide the ball,” Judge Jackson wrote.

Her rebuke shed new light on Mr. Barr’s decision not to prosecute Mr. Trump. She also wrote that although the department portrayed the advice memo as a legal document protected by attorney-client privilege, it was done in concert with Mr. Barr’s publicly released summary, “written by the very same people at the very same time.”

A spokeswoman for Mr. Barr did not return an email seeking comment. A Justice Department spokesman declined to comment.

Judge Jackson said that the government had until May 17 to decide whether it planned to appeal her ruling, a decision that will be made by a Justice Department run by Biden appointees.

The ruling came in a lawsuit by a government watchdog group, Citizens for Responsibility and Ethics in Washington, asking that the Justice Department be ordered to turn over a range of documents related to how top law enforcement officials cleared Mr. Trump of wrongdoing.

At issue is how Mr. Barr handled the end of the Mueller investigation and the release of its findings to the public. In March 2019, the office of the special counsel overseeing the inquiry, Robert S. Mueller III, delivered its report to the Justice Department. In a highly unusual decision, Mr. Mueller declined to make a determination about whether Mr. Trump had illegally obstructed justice.

 washington post logoWashington Post, Supreme Court declines to revisit precedent that restricts lawsuits from service members, Robert Barnes, May 4, 2021 (print ed.). Justice Clarence Thomas said the court should have granted a former West Point cadet’s suit over an alleged rape.

The Supreme Court on Monday turned down an attempt by a former West Point cadet to sue the military academy’s leadership over her alleged sexual assault.

It was the latest unsuccessful plea to justices to revisit a 70-year-old court precedent that restricts lawsuits against the government when the alleged injuries arise from military service.

As he has in the past, Justice Clarence Thomas said it was time for the court to take another look at the Feres Doctrine. It comes from a 1950 decision that Thomas said mistakenly expanded a limited exception in the Federal Tort Claims Act concerning combat-related injuries.

May 3

 United Nations

Newsweek, Independent Commission Calls U.S. Police Killing of Blacks 'Crimes Against Humanity,' But Lacks Enforcement Authority, Meghan Roos, May 3, 2021. An independent commission announced its findings on April 27 with the publication of a detailed report that alleges the existence of systemic racism inherent in police violence against Black Americans, which they argue constitutes crimes against humanity.

Although the commission has no enforcement authority, it made specific referrals to the United Nations Human Rights Council (HRC), the International Criminal Court (ICC), the Executive Branch of the U.S. Government and the U.S. Congress, among others.

newsweek logoIn the U.S., the referrals included a call for reparations, action to review and retool existing law enforcement policies, and passage of legislation to hold law enforcement officers accountable when Black individuals die as a result of their encounters with police.

At the international level, the commission called upon the global community to support ICC investigations into systemic racist police violence in the U.S. under Article 7 of the court's Rome Statute, which covers crimes against humanity.

Though nations like Australia, Mexico, South Africa and the United Kingdom are among the Rome Statute's list of 123 signatory countries, the U.S. is not. America's lack of ICC membership means the ICC has significantly less jurisdiction over the U.S. than it does over its member states.

The killing of George Floyd (shown below at left along with his convicted murderer, then Police Officer Derek Chauvin) in May, an event captured on video that went viral, sparked protests across the nation, which inspired calls from relatives of Black Americans who have been victims of similar police conduct to request reviews of the institutions and workplace cultures that allow this violence to fester.

Floyd's death inspired debate at the U.N.'s HRC, which decided in June to create a report assessing how systemic racism and police conduct impacts Black individuals around the world.george floyd derek chauvinBut Floyd's family members and others who pushed for the inquiry had wanted the HRC to focus on those issues specifically in the U.S. In response to the U.N.'s global focus, three organizations—the U.S.-based National Conference of Black Lawyers, the National Lawyers Guild, and the International Association of Democratic Lawyers—came together to launch an independent commission of their own, which was officially named the International Commission of Inquiry on Systemic Racist Police Violence Against People of African Descent in the United States.

The commission's resulting 188-page report was funded by the National Lawyers Guild Foundation.

The commissioners wrote that they believed launching an independent inquiry was necessary because of the way the U.N. backed away from focusing on systemic racism and police conduct in the U.S. The report said the U.N. did so in response to pressure from the U.S. while the country was led by former President Donald Trump.

The commission's resulting 188-page report was funded by the National Lawyers Guild Foundation.

The commissioners wrote that they believed launching an independent inquiry was necessary because of the way the U.N. backed away from focusing on systemic racism and police conduct in the U.S. The report said the U.N. did so in response to pressure from the U.S. while the country was led by former President Donald Trump.

american flag upside down distress"After succumbing to enormous pressure by the U.S. and its allies, the HRC instead directed the Office of the High Commissioner of Human Rights to prepare a report on systemic racism and violations of international human rights by police against Africans and people of African descent throughout the world," the report said.

Jamil Dakwar, the director of the American Civil Liberties Union (ACLU) Human Rights Program, said the U.N.'s decision to pursue an international report "ultimately was watered down" from the initial request for an inquiry with a U.S. focus, which the ACLU supported.

The independent commission's report "really came as a way to further document and press for international accountability that we asked for last summer," Dakwar told Newsweek.

The recommendations serve as a reminder that the U.S. is not a member state of the ICC. The country's relationship with the ICC has fluctuated since the court's early days of existence in the late 1990s, with Democratic presidents tending to support the court's objectives more so than Republican presidents.

Former President Donald Trump struck an unfriendly tone with the ICC while he was in office, going so far as to place sanctions on some ICC officials. Biden rescinded those Trump-era sanctions after taking office in January.

While the U.S. has supported select ICC efforts over the years, the country would need Biden's signature and support from two-thirds of the Senate in order to become an ICC member state. That kind of supermajority is unlikely in a time of heightened political polarization, when the Senate is equally split between Democrats and Republicans.

Though there are some actions the ICC can take involving U.S. citizens, the commission's ICC recommendations carry less weight than they would if the U.S. was in full cooperation with the court.

us senate logoInstead of observing police violence in America from afar, Hinds said the commission decided to "mobilize the international community to hold the United States to account."

"We can provide an objective statement of the reality that experts have shown in terms of the United States government holding itself up to be the bastion of human rights, while the objective evidence states to the contrary," Hinds said.

Though the U.S. isn't a member of the international court, it does have U.N. membership, Hinds pointed out.

"The United States does not want to be condemned before the United Nations, or before the international community," he said.

"After succumbing to enormous pressure by the U.S. and its allies, the HRC instead directed the Office of the High Commissioner of Human Rights to prepare a report on systemic racism and violations of international human rights by police against Africans and people of African descent throughout the world," the report said.

Jamil Dakwar, the director of the American Civil Liberties Union (ACLU) Human Rights Program, said the U.N.'s decision to pursue an international report "ultimately was watered down" from the initial request for an inquiry with a U.S. focus, which the ACLU supported.

The independent commission's report "really came as a way to further document and press for international accountability that we asked for last summer," Dakwar told Newsweek.

He said it is important the public understands that the commission's report is entirely separate from the U.N. inquiry the ACLU joined in requesting, though Tuesday's report reiterates those earlier calls for the U.N. to focus its attention on allegations of racist police conduct in the U.S.

For their report, the 12 commissioners from countries around the world collected testimony from family members and attorneys of 43 Black individuals in the U.S. who were killed during encounters with police and one other Black individual who was paralyzed after he was shot by police.

The commission posits there are two law systems in the U.S., one for Black citizens, one for white citizens.

"Under color of law, Black people are targeted, surveilled, brutalized, maimed and killed by law enforcement officers with impunity, as being Black is itself criminalized and devalued," the report said. "After hearing the testimony and reviewing national data, the Commissioners conclude that both the relevant laws and police practices in the U.S. do not comply with the international human rights obligations of the U.S."

ny times logoNew York Times, Justice Clarence Thomas, Long Silent, Has Turned Talkative, Adam Liptak, May 3, 2021. The Supreme Court’s orderly telephone arguments, prompted by the pandemic, have given the public a revealing look at its longest-serving member.

clarence thomas HRJustice Clarence Thomas, right, who once went a decade without asking a question from the Supreme Court bench, is about to complete a term in which he was an active participant in every single argument.

Justice Thomas’s switch from monkish silence to gregarious engagement is a byproduct of the pandemic, during which the court has heard arguments by telephone. The justices now ask questions one at a time, in order of seniority.

Justice Thomas, who joined the court in 1991, goes second, right after Chief Justice John G. Roberts Jr., asking probing questions in his distinctive baritone.

“It’s been a lemonade out of lemons situation,” said Helgi C. Walker, a lawyer with Gibson, Dunn & Crutcher who served as a law clerk to the justice. “I’m just thrilled that more people get to hear the Justice Thomas that we all know.”


April 2021 Update

April 29

ny times logoNew York Times, A Sharp Divide at the Supreme Court Over a One-Letter Word, Adam Liptak,  April 29, 2021. In an immigration ruling that scrambled the usual alliances, the justices differed over the significance of the article “a.”

The Supreme Court on Thursday ruled that the government must comply strictly with a requirement that immigrants receive detailed notices about their deportation hearings.

The 6-to-3 decision featured unusual alliances, with the three conservative justices most committed to interpreting statutes according to their plain words — Justices Clarence Thomas, Neil M. Gorsuch and Amy Coney Barrett — joining the court’s three-member liberal wing to form a majority.

The case concerned a 1996 federal law that allows immigrants subject to deportation to apply to stay in the country if they meet various criteria, including that they had been continuously present for at least 10 years. The law stops that time from accruing once immigrants receive “a notice to appear” for a deportation hearing listing various kinds of information, including the nature of the proceeding and when and where it will take place.

The question in the case was whether the government had to provide all of the information at once or could do so piecemeal. Justice Gorsuch, writing for the majority, said the statute’s use of the article “a” in “a notice to appear” was crucial.

April 27

washington post logoWashington Post, Supreme Court to consider Guantánamo Bay terrorism suspect’s request to learn more about his CIA-sponsored torture, Robert Barnes, April 27, 2021 (print ed.). The prisoner is Abu Zubaida, once a prized capture whose torture after the 9/11 terrorist attacks has been extensively documented. But the government has invoked the “state secrets” privilege to oppose his efforts CIA Logofor additional information about foreign intelligence officials who partnered with the CIA in detention facilities abroad.

The government already has declassified vast amounts of information about Abu Zubaida, whose birth name is Zayn al-Abidin Muhammed Hussein and whose closeness to Osama bin Laden, the deceased founder of al-Qaeda, is now questioned.

But he and his attorney have asked for more disclosure and to question two CIA contractors, James Mitchell and John Jessen, about the interrogations. Abu Zubaida wants the information because he has intervened, through his attorneys, in a Polish investigation of the CIA’s conduct in that country, where he was once held.

His request was opposed by then-CIA director Mike Pompeo, who said the disclosure “reasonably could be expected to cause serious, and in many instances, exceptionally grave damage to U.S. national security.”

Justice Department log circular

ABC News / KTRK-TV (Houston), International panel call on lawmakers to dismantle police, Cory McGinnis, April 27, 2021. Traffic stops and excessive use of force against Black people are being reported as "common precursors" to police killings, a new report shows.

On Tuesday, the International Commission of Inquiry on Systemic Racist Police Violence in the United States released its final report of its investigations into police violence across the country.

The commission selected 44 cases of police violence from 33 different cities, including Houston. The panel met via Zoom after weeks of live hearings involving cases of Black people killed by police as well as months of review of relevant documents.

The commission found that traffic stops are a common precursor to police killings and uses of excessive force against Black people. They also found a pattern of police destructing or manipulating evidence in cases of involving people of color.

"The only weapon that they had was the color of their skin," said a panel member.

Commissioners also mentioned how these patterns of violence and mistreatment ultimately breaks up Black families and Black communities.

The guest speakers featured on the Zoom call included families touched by police violence, including the mother of Eric Garner and the brother of George Floyd. The commissioners are now calling on lawmakers and President Joe Biden to step in. Visit the group's website for the full list of the committee's findings. 

washington post logoWashington Post, When communities try to hold police accountable, law enforcement fights back, Nicole Dungca and Jenn Abelson, April 27, 2021. Attempts by civilian oversight groups to hold law enforcement officials accountable are often an exercise in failure and frustration. Police say citizens are well-meaning but ill-equipped to judge officers.

The struggle in New Mexico’s largest city illustrates the challenge of asking civilians to check police powers. Police nationwide have frequently defied efforts to impose civilian oversight and, in turn, undermined the ability of communities to hold law enforcement accountable, according to a Washington Post review of audits, misconduct complaints, emails, lawsuits and interviews with dozens of current and former officials.

More than 160 municipalities and counties have implemented some form of civilian oversight through review boards, inspectors general and independent monitors. Another 130 localities are trying to do so, according to officials from the National Association for Civilian Oversight of Law Enforcement, or NACOLE, though this represents a fraction of roughly 18,000 law enforcement agencies nationwide.

The issue has gained new traction as part of the push to overhaul policing in the United States after the killings of Breonna Taylor and George Floyd, both unarmed and Black. Their deaths last year sparked massive demonstrations and reignited long-held skepticism about law enforcement’s treatment of Black people and its tolerance for misconduct.

David and Leila Centner identify themselves as “health freedom advocates,” and their school has posted guidance to help parents file for exemptions to state-required vaccinations. In late January, they invited Robert F. Kennedy Jr., a prominent anti-vaccine advocate, to speak at the school.

Daily Beast, Secret Court Reveals: FBI Hunted for Domestic Terrorists Without a Warrant, Spencer Ackerman, April 27, 2021. A secret court warned the FBI in 2018 about warrantless searches. But the bureau still went looking for “racially motivated violent extremists” in NSA troves without a court order.

daily beast logoThe FBI, without any court order, sifted through the National Security Agency’s massive troves of foreign communications for information on American “racially motivated violent extremists,” a newly declassified order from the secret surveillance court details.

Even though the Foreign Intelligence Surveillance (FISA) Court warned the FBI in 2018 that its warrant-free queries, known as backdoor searches, were constitutionally alarming, the bureau still conducted queries relevant to criminal investigations about, among other things “domestic terrorism involving racially motivated violent extremists.” The court’s Judge James E. Boasberg found what he referred to as “apparent widespread violations of the querying standard.”

FBI logoThat’s the euphemistic term the bureau tends to use to denote white supremacist violence. On one occasion, an FBI analyst ran a multi-search-term “batch query” on Americans “in connection with predicated criminal investigations relating to domestic terrorism” that returned 33 foreign surveillance results.

“The FBI continues to perform warrantless searches through the NSA’s most sensitive databases for routine criminal investigations.”

And not only domestic terror. The FISA Court recounts government acknowledgment that at least 40 FBI searches through the NSA’s warrantlessly collected data involved “health care fraud, transnational organized crime, violent gangs” and “public corruption and bribery.”

On at least one occasion, around May 2020, an FBI analyst looked through the foreign NSA troves “to vet [a] potential source in [a] predicated criminal investigation relating to public corruption.” Seven FBI field offices were implicated in “these and a number of similar violations,” according to a November 18, 2020 FISA Court opinion declassified on Monday and signed by Boasberg.

In other words, the FBI continues to perform warrantless searches through the NSA’s most sensitive databases—the ones the NSA is not required to get warrants before filling with communications information—for routine criminal investigations that are supposed to require warrants.Mother Jones, Investigation: In Sworn Testimony in Inauguration Scandal Case, Donald Trump Jr. Made Apparently False Statements, David Corn, April 27, 2021 (3:16 min. video). On February 11, Donald Trump Jr. sat in front of his computer for a video deposition. He swore to tell the truth. But documents and a video obtained by Mother Jones—and recent legal filings—indicate that his testimony on key points was not accurate.

The matter at hand was a lawsuit filed in 2020 against Donald Trump’s inauguration committee and the Trump Organization by Karl Racine, the attorney general of Washington, DC. The suit claims that the inauguration committee misused charitable funds to enrich the Trump family.

As the attorney general put it, the lawsuit “alleges that the Inaugural Committee, a nonprofit corporation, coordinated with the Trump family to grossly overpay for event space in the Trump International Hotel. Although the Inaugural Committee was aware that it was paying far above market rates, it never considered less expensive alternatives, and even paid for space on days when it did not hold events. The Committee also improperly used non-profit funds to throw a private party [at the Trump Hotel] for the Trump family costing several hundred thousand dollars.” In short, the attorney general has accused the Trump clan and its company of major grifting, and he is looking to recover the amounts paid to the Trump Hotel so he can direct those funds to real charitable purposes.

As part of the case, Racine has taken depositions from Tom Barrack, the investor and Donald Trump pal who chaired the inauguration committee; Rick Gates, the committee’s former deputy chair, who subsequently pleaded guilty to two charges stemming from special counsel Robert Mueller’s Trump-Russia investigation; and two of Trump’s adult children: Donald Jr. and Ivanka. Stephanie Winston Wolkoff, a top producer for the inauguration committee, was deposed as a lead witness cooperating with the investigation. Racine has also collected internal emails and material from the committee, its officials, and others who worked on the inauguration.

During his deposition, Trump Jr. frequently replied, “I don’t recall,” and he downplayed his involvement in preparation for his father’s inauguration in January 2017. In several exchanges, he made statements that are contradicted by documents or the recollections of others and that appear to be false.

One of the clearest instances of Trump Jr. not testifying accurately came when he was asked about Winston Wolkoff. As the lawsuit notes, during the organization of the inauguration, Winston Wolkoff, then a close friend of Melania Trump, had raised concerns with the president-elect, Ivanka Trump, and Gates about the prices the Trump Hotel was charging the inauguration committee for events to be held there. This included a written warning to Ivanka Trump and Gates that Trump’s hotel was trying to charge the committee twice the market rate for event space. (Gates ignored the warning, the lawsuit notes, and the committee struck a contract with the Trump Hotel for $1.03 million, an amount the lawsuit says was far above the hotel’s own pricing guidelines.)

During his deposition, Trump Jr. was asked about Winston Wolkoff: “Do you know her?” He replied, “I know of her. I think I’ve met her, but I don’t know her. If she was in this room I’m not sure I would recognize her.” He added, “I had no involvement with her.

Atlanta Journal-Constitution, The indictments of two men connected to an alleged neo-Nazi terror cell in Georgia shines light on the reach of the group known as the Base, Staff Report, April 27, 2021. The recent indictments of two more men connected to an alleged neo-Nazi terror cell in Floyd County shine new light on the reach of the group known as the Base.

Duncan Christopher Trimmell, 23 of Austin, Texas, and Brandon Gregory Ashley, 21 of Hayden, Alabama, face charges of animal cruelty related to the alleged theft and ritual beheading of a ram or goat on Halloween 2019, according to an indictment handed down by a Floyd County grand jury earlier this month.

The charges, first reported by the Rome News-Tribune, reveal more of the web of what authorities describe as a criminal gang whose members planned to kill a Bartow County couple they suspected of being anti-fascist activists. Group members were arrested as part of a undercover investigation by state and federal law enforcement before they could carry out the plot.

Trimmell and Ashley join six other men believed to have come to an isolated property in the Silver Creek community south of Rome where an undercover law enforcement officer said they shot guns, took drugs and planned for a race war as part of a white supremacist group known as the Base.

According to court records, one aspect of those meetings was the killing of an animal alternately described in court records as a ram or a goat. The animal was allegedly stolen from a nearby property and killed in what was described as a "ritual sacrifice."

Joanna Mendelson, associate director of the Anti-Defamation League's Center on Extremism, said the new indictments show the Base's long reach, drawing members from across the nation and even from other countries.

"As this case further develops it sheds a very bright light of how this group that had a substantial presence in the virtual spaces engaged in real-world action, bringing individuals from the far corners of our country together," she said.

In January 2020, three Georgia residents were arrested in the alleged conspiracy: Michael Helterbrand, 26, of Dalton; Jacob Kaderli, 20, of Dacula; and Luke Austin Lane, 22, whose Silver Creek residence prosecutors say was used as the locale for the meeting.

Along with the animal cruelty charges, Helterbrand, Kaderli and Lane face charges of conspiracy to commit arson, home invasion and murder, and violations to the state's anti-gang laws.

In addition, Patrik Mathews, William Garfield Bilbrough IV, Brian Mark Lemley Jr., also accused members of the Base, were indicted on charges related to the killing of the ram. Those charges are in addition to federal firearms charges they face in Maryland. Mathews Bilbrough and Lemley hail from Maryland, but Mathews was a member of the Canadian military and was in the United States illegally.

Helterbrand, Kaderli and Lane have been held in jail for more than a year without bond but were only formally indicted last month, thanks to judicial delays brought on by the COVID-19 pandemic. Lane's most recent motion for bond was rejected by Floyd County Superior Court Judge John Neidrach in a March 30 order.

Authorities contend the suspects in the alleged murder plot continue to have contact with white supremacists while in jail. At Lane's bond hearing last month, Assistant DA Johnson said Lane has been in contact with far-right figures while in jail, including Dalton Woodward, a Georgia resident who was expelled from the National Guard after the AJC reported his membership in a pagan sect known for attracting white supremacists.

The Georgia suspects have also been featured on the website of the Global Minority Initiative, a group that encourages supporters to send money and cards of support to white supremacists and neo-Nazis in prison. Attorneys for Lane and Kaderli said their clients are not soliciting that kind of support.

April 26

washington post logoWashington Post, Supreme Court to hear a major case on carrying guns outside the home, Robert Barnes, April 26, 2021. nra logo CustomThe Supreme Court announced Monday it will hear a major new gun control case next term, accepting a National Rifle Association-backed challenge that asks the court to declare there is a constitutional right to carry a weapon outside the home.

The court will hear the challenge to a century-old New York gun control law in the term that begins in October. It is considering a law that requires those who seek a permit to carry a concealed weapon show a special need for self-defense. It is similar to laws in Maryland, Massachusetts and elsewhere that the court in the past has declined to review.

Supreme Court passes up challenges pressed by gun rights groups

But the court’s new conservative majority has signaled it is more receptive to Second Amendment challenges. Several justices have said they are anxious to explore gun rights first acknowledged by the court in 2008, when it ruled in District of Columbia v. Heller that individuals have the right to gun ownership for self-defense in their homes.

phil waldron

Above: Phil Waldron, Giuliani associate and self-described cyber-security expert.

Proof via Substack, Investigative commentary: Giuliani Associate and Apparent January 5 Trump War Council Attendee May Audit 2020 Election Ballots in New Hampshire, Seth Abramson, left, April 25, 2021. seth abramson headshotThe prospect of an apparent insurrectionist plotter handling actual 2020 presidential election ballots in an effort to throw fuel on Trump's domestic insurgency is terrifying.

After the 2020 election, retired army colonel Phil Waldron went to Pennsylvania to tell Republican legislators that the Commonwealth might have had as many as 1.2 million “altered”—thus seth abramson proof logofraudulent—ballots in the 2020 presidential election. Waldron had not reviewed any of the ballots in Pennsylvania.

In Arizona, Waldron arrived, again alongside Donald Trump’s personal attorney Rudy Giuliani—who remains under federal criminal investigation by the FBI and DOJ for a laundry-list of major federal crimes—to tell Republican legislators that the state may have had well over 100,000 fraudulent ballots. Waldron displayed an anonymous email as evidence of a supposed Pima County plot to inject 35,000 fraudulent ballots into the election. He couldn’t or wouldn’t say who had authored the email.


roger stone friends

Republican political operative Roger Stone, in suspenders at center, flashes a "white power" hand-signal along with members of what has been described as his protective detail in the above file photo via Facebook.

Palmer Report, Opinion: Roger Stone is playing a dangerous game, Bill Palmer, right, April 26, 2021. Roger Stone is certainly not “getting away with it all.” The two Oath Keepers he hired for the Capitol bill palmerinsurrection have been charged with felony conspiracy, opening the door to potential conspiracy charges against Stone as well. And even if that falls through, the DOJ is already going after Stone for tax fraud. He’ll (eventually) be brought to justice one way or the other. But in the meantime, there’s a problem.

bill palmer report logo headerStone has long been banned from every major social media platform, because he likes to make violent threats. Stone is still posting on the bottom feeding alt-right social media networks such as Parler. There is a popular Twitter account called “Patriot Takes” that does the thankless job of cataloguing the most deranged and egregious Parler posts, which is a good way of keeping track of these insurrectionists.

Stone apparently doesn’t like this, and so he made a Parler post threatening to murder Patriot Takes.

Specifically, Stone threatened to send Patriot Takes to “Meet St. Peter” – which is an obvious reference to what happens when you die – meaning that this really is a murder threat. Is it likely that Stone is going to track down and murder the person running the Patriot Takes account? No. But murder threats are still a crime.

Yet Roger Stone is still, for now, a free man. I’m not necessarily saying the DOJ should rush out and arrest Stone tomorrow over a Parler post, before it’s even finished a criminal case against him for the Capitol attack. But Stone’s lack of being arrested does give the appearance that he’s going to get away with it all. Moreover, it gives the appearance anyone can make a murder threat online and just get away with it.

Maybe it’s coincidence that the day after Roger Stone made waves by threatening to murder Patriot Takes, I received two specific threats of violence from two bottom feeders on my own social media accounts. But it sure felt like maybe it wasn’t coincidence. As a society, we’re supposed to draw the line at threatening to murder each other. Twitter and Facebook have gone a good job of drawing this line. It’s notable that Parler was just re-added to the App Store last week, under the promise that it would police this kind of violent content. That doesn’t appear to be happening, or Stone wouldn’t still have an account.

In any case, Roger Stone is going to face legal justice in the end. His pardon was never going to protect him for long, because he was always going to commit even more crimes after his pardon, which don’t get covered.

ny times logoNew York Times, Six Months Later, Arizona Republicans Are Recounting the Vote, Michael Wines, April 26, 2021 (print ed.).  An audit in Arizona’s most populous county, meant to mollify angry Trump voters, is being criticized as a partisan exercise more than a fact-finding one.

It seemed so simple back in December.

republican elephant logoResponding to angry voters who echoed former President Donald J. Trump’s false claims of a stolen election, Arizona Republicans promised a detailed review of the vote that showed Mr. Trump to have been the first Republican presidential nominee to lose the state since 1996. “We hold an audit,” State Senator Eddie Farnsworth said at a Judiciary Committee hearing. “And then we can put this to rest.”

Democratic-Republican Campaign logosBut when a parade of flatbed trucks last week hauled boxes of voting equipment and 78 pallets containing the 2.1 million ballots of Arizona’s largest county to a decrepit local coliseum, it kicked off a seat-of-the-pants audit process that seemed more likely to amplify Republican grievances than to put them to rest.

Almost half a year after the election Mr. Trump lost, the promised audit has become a snipe hunt for skulduggery that has spanned a court battle, death threats and calls to arrest the elected leadership of Maricopa County, which includes Phoenix.

The head of Cyber Ninjas, the Florida-based firm that Republican senators hired to oversee the audit, has embraced Mr. Trump’s baseless theories of election theft and has suggested, contrary to available evidence, that Mr. Trump actually won Arizona by 200,000 votes. The pro-Trump cable channel One America News Network has started a fund-raiser to finance the venture and has been oan logonamed one of the nonpartisan observers that will keep the audit on the straight and narrow.

In fact, three previous reviews showed no sign of significant fraud or any reason to doubt President Biden’s victory. But the senators now plan to recount — by hand — all 2.1 million ballots cast in Maricopa County, two-thirds of the entire vote statewide.

Critics in both parties charge that an effort that began as a way to placate angry Trump voters has become a political embarrassment and another blow to the once-inviolable democratic norm that losers and winners alike honor the results of elections.

“You know the dog that caught the car?” said Steve Gallardo, the lone Democrat on the Republican-dominated Maricopa Board of Supervisors. “The dog doesn’t know what to do with it.”After a brief pause on Friday ordered by a state court judge, the audit continues without clarity on who will do the counting, what it will cost and who will pay for the process, which is expected to last into mid-May. The One America network is livestreaming it, and Mr. Trump is cheering from the sidelines.

In an email statement on Saturday, he praised the “brave American Patriots” behind the effort and demanded that Gov. Doug Ducey, a frequent target of his displeasure, dispatch the state police or National Guard for their protection.

Katie Hobbs, Arizona’s secretary of state, a Democrat, was less enthused.

“My concern grows deeper by the hour,” she said in an email on Friday. “It is clear that no one involved in this process knows what they are doing, and they are making it up as they go along.”

The Senate president, Karen Fann, said in December that the audit had no hidden agenda and could not change the settled election results in Arizona, regardless of what it showed.

“A lot of our constituents have a lot of questions about how the voting, the electoral system works, the security of it, the validity of it,” she said, and so the senators needed experts to examine voting processes and determine “what else could we do to verify the votes were correct and accurate.”
Other state legislatures have looked into bogus claims of election fraud. But the Arizona audit, driven in part by conspiracy theories about rigged voting machines, is in a league of its own. Experts say it underscores the sharp rightward shift of the Legislature and the state Republican Party even as the state edges toward the political center.

“I get why they’re doing it, because half of the G.O.P. believes there was widespread fraud,” said Mike Noble, a Phoenix pollster who got his start in Republican politics. “The only problem is, a majority of the electorate doesn’t believe there was widespread fraud.

“The longer they push this,” he said, “the more they’re alienating people in the middle.”

In Arizona, the state party is headed by Kelli Ward, a former state senator who has rejected Mr. Biden’s victory and supports the audit. Under her leadership, the party in January censured Mr. Ducey, former Senator Jeff Flake and Cindy McCain for being insufficiently loyal to Mr. Trump.


U.S. Crime, Police, Race, Court

david fowler

washington post logoWashington Post, Md. officials to review cases handled by ex-chief medical examiner who testified in Derek Chauvin’s defense, Emily Davies and Ovetta Wiggins, April 25, 2021 (print ed.). Top Maryland officials are launching an investigation of all deaths in police custody that were overseen by the state’s former chief medical examiner, shown above, who testified in Derek Chauvin’s defense, the Maryland attorney general and governor’s offices announced Friday.

Raquel Coombs, a spokeswoman for Attorney General Brian E. Frosh, said the office has been in internal discussions about launching a probe for the past couple of weeks and recently reached out to Gov. Larry Hogan’s office about how to proceed.

David Fowler, who was Maryland’s chief medical examiner from 2002 to 2019, served as a key witness for Chauvin, whose high-profile trial ended this week with a jury convicting the former Minneapolis officer of murder and manslaughter in the death of George Floyd.

Fowler broke with the Hennepin County medical examiner, among others, to classify Floyd’s killing as “undetermined” and not a homicide. Floyd was seen in viral video gasping for breath while pinned under Chauvin’s knee. Fowler testified that the primary cause of Floyd’s death was cardiac arrhythmia during police restraint due to underlying heart disease. He also said that Floyd’s drug use and exposure to carbon monoxide from the police car contributed to his death

  brandi levy aclu photo

 Brandi Levy poses for a portrait provided by the ACLU outside of Mahanoy Area High School. Levy is now 18 and in college, where she studies accounting. (Danna Singer)

washington post logoWashington Post, A cheerleader’s Snapchat rant leads to ‘momentous’ Supreme Court case on student speech, Robert Barnes, April 26, 2021 (print ed.). The high school cheerleader relegated to the JV squad for another year responded with a fleeting fit of frustration: a photo of her upraised middle finger and another word that begins with F.

“F--- school, f--- softball, f--- cheer, f--- everything,” 14-year-old Brandi Levy typed into Snapchat one spring Saturday. Like all “snaps” posted to a Snapchat “story,” this one sent to about 250 “friends” was to disappear within 24 hours, before everyone returned to Pennsylvania’s Mahanoy Area High School on Monday.

Instead, an adolescent outburst and the adult reaction to it have arrived at the Supreme Court, where the case could determine how the First Amendment’s protection of free speech applies to the off-campus activities of the nation’s 50 million public school students.

“This is the most momentous case in more than five decades involving student speech,” said Justin Driver, a Yale law professor and author of “The Schoolhouse Gate: Public Education, the Supreme Court, and the Battle for the American Mind.”

“Much of the speech from students is off-campus and increasingly online,” Driver said. “When I talk to school administrators, they consistently tell me that off-campus speech bedevils them, and the lower courts desperately need some guidance in this area.”

April 22

ny times logoNew York Times, Supreme Court Rejects Limits on Life Terms for Youths, Adam Liptak, April 22, 2021. The court, which has for years been cutting back on harsh punishments for juvenile offenders, changed course in a 6-to-3 decision.

The Supreme Court ruled on Thursday that judges need not determine that juvenile offenders are beyond hope of rehabilitation before sentencing them to die in prison. The decision, concerning a teenager who killed his grandfather, appeared to signal the end of a trend that had limited the availability of severe punishments for youths who commit crimes before they turn 18.

Justice Brett M. Kavanaugh, writing for the majority in the 6-to-3 ruling, said it was enough that the sentencing judge exercised discretion rather than automatically imposing a sentence of life without parole.

“In a case involving an individual who was under 18 when he or she committed a homicide,” he wrote, “a state’s discretionary sentencing system is both constitutionally necessary and constitutionally sufficient.”

No specific finding concerning the defendant’s maturity or capacity for change was required, he wrote.

 The ruling drew a caustic dissent from Justice Sonia Sotomayor, who accused the majority of gutting two major precedents.

Over the past 16 years, the court, often led by Justice Anthony M. Kennedy, methodically limited the availability of the harshest penalties for crimes committed by juveniles, first by striking down the juvenile death penalty and then by restricting sentences of life without the possibility of parole.

But Justice Kennedy retired in 2018, and the court, now dominated by six conservative members, does not seem to have enthusiasm for continuing his project.

Thursday’s decision, Jones v. Mississippi, No. 18-1259, concerned Brett Jones, who had recently turned 15 in 2004 when his grandfather discovered his girlfriend in his room. The two men argued and fought, and the youth, who had been making a sandwich, stabbed his grandfather eight times, killing him.

In 2005, Mr. Jones was convicted of murder and sentenced to life without the possibility of parole, then the mandatory penalty under state law. That same year, the Supreme Court ruled in Roper v. Simmons that the death penalty for juvenile offenders was unconstitutional.

In 2012, in Miller v. Alabama, the court extended the logic of the Roper decision to ban mandatory life-without-parole sentences like the one imposed on Mr. Jones. The decision repeatedly criticized mandatory sentences, suggesting that only ones in which judges could take account of the defendant’s age were permissible.

ny times logoNew York Times, Manhattan to Stop Prosecuting Prostitution, Part of Nationwide Shift, Jonah E. Bromwich, Updated April 22, 2021.

ny times logolinda greenhouse cover just a journalistNew York Times, Opinion: Uncomfortable Timing for a Supreme Court Gun Fight, Linda Greenhouse (shown at right on the cover of her memoir), April 22, 2021. The justices contemplate expanding arms rights in the wake of mass shootings.

Once again, the country is awash in gun violence. And once again, the justices have to decide whether to inject the Supreme Court into the middle of the gun debate. Will the first of those two sentences inform the second?

That’s really the question now, it seems to me. There is little doubt that the necessary four votes exist to add a Second Amendment case to the docket for decision, and there are plenty of candidates to choose from. One case under active consideration challenges New York State’s restriction on carrying a concealed gun outside the home. The justices have taken it up at their private conference twice this month and are scheduled to do so again on Friday.

A case from New Jersey raising the same challenge to a similar constraint was filed at the court on April 2. There are other Second Amendment cases in the pipeline, propelled toward the court in the expectation that Justice Amy Coney Barrett’s arrival has finally tipped the balance toward action on the gun rights agenda.

Thinking about that prospect in light of the banner headline that ran across the front page of The Times on Saturday — “In Indianapolis, 3rd Massacre in 3 Months — brought to mind a lecture that William Rehnquist, 15 years into his Supreme Court tenure as an associate justice and on the eve of becoming chief justice, gave in 1986 at Suffolk University Law School in Boston. He later published it in the school’s law review under the title “Constitutional Law and Public Opinion.”

For the vast majority of people in the country, Heller changed nothing as a practical matter; it constitutionalized a right that gun owners already enjoyed under state and local laws.

Whether the Second Amendment also protects a right to walk down the street, or onto a college campus, or into a supermarket, a warehouse, a State Capitol, or a 12-year-old’s birthday party carrying a gun are questions that District of Columbia v. Heller (5-4 2008 decision) did not answer. The current court can answer those questions in the affirmative if it so chooses. It has the votes. We will soon see whether it has the discipline and common sense to stay its hand.

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washington post logoWashington Post, Inmates sent home amid pandemic may have to return under Trump-era policy, Justin Wm. Moyer and Neena Satija, April 22, 2021 (print ed.). Thousands of federal inmates serving their sentences at home under supervision during the coronavirus pandemic might have to return to prison when the pandemic ends, according to a Justice Department memo issued during the waning days of Donald Trump’s presidency.

Advocates and dozens of lawmakers are urging the Biden administration to rescind the memo, which affects some 4,500 inmates who last year were allowed to finish their sentences under home confinement. The Federal Bureau of Prisons sent them home under authority it was granted by Congress to help curb the spread of the coronavirus in federal prisons.

The inmates transferred to home confinement — all of whom were deemed “low risk” by BOP officials, and many of whom are elderly and in poor health — left prison last spring as the coronavirus tore through the federal prison system, eventually killing 233 inmates and four staff members, according to agency figures.

White House spokesman Andrew Bates said in an email that President Biden “is committed to reducing incarceration and helping people to reenter society,” but referred questions about the memo to the Justice Department, which declined to comment.

Gwen Levi, 75, is one of the inmates trying to stay out of federal prison. She was sent to home confinement in June after serving 16 years of a 24-year sentence for conspiracy to sell at least one kilogram of heroin. She lives in Baltimore with her 94-year-old mother and volunteers at prisoner advocacy organizations, hoping to get a paying job if one comes along.

During a Senate Judiciary Committee hearing Thursday, BOP Director Michael Carvajal said it’s unlikely any of the 4,500 people in home confinement due to the pandemic will return to prison soon because Biden extended a national coronavirus emergency. However, when the emergency ends, Congress “didn’t specify what to do with them,” he said.

Of 152,000 people in Bureau of Prisons custody, about 138,000 are serving time in institutions with prisonlike restrictions. That leaves the federal prison population at its lowest level in two decades.

ny times logoNew York Times, He Said to ‘Kill Your Senators’ in an Online Video. Now He’s on Trial, Nicole Hong, April 22, 2021 (print ed.). The trial of Brendan Hunt, an avid Trump backer and New York City resident, will be one of the justice system’s first attempts to grapple with the events of Jan. 6.

Two days after the attack on the U.S. Capitol, a 37-year-old man living in New York City posted a video online entitled “KILL YOUR SENATORS.”

brendan huntThe man, Brendan Hunt, right, was not in Washington on Jan. 6. But in the 88-second video, he said that “we need to go back to the U.S. Capitol” ahead of President Biden’s inauguration and “slaughter” members of Congress, according to the criminal complaint.

“If anybody has a gun, give me it,” he said. “I’ll go there myself and shoot them and kill them.”

Now, the question of whether the video and three other social media posts by Mr. Hunt crossed the line from free speech into illegal threats is at the heart of a federal trial starting this week in Brooklyn

This is the first federal trial in the country that will force jurors to grapple deeply with the events of Jan. 6, diving headfirst into the national debate about how much the government should police violent rhetoric in the wake of the Capitol attack.

Justice Department log circularMr. Hunt became part of the Capitol breach’s sprawling aftermath as law enforcement officials not only arrested hundreds of rioters who stormed the Capitol but also charged people with making online threats around the attack. As officials in Washington consider new ways to combat violent extremism, including a possible domestic terrorism statute, Mr. Hunt’s trial could be a bellwether of how the authorities balance the pursuit of serious threats with constitutional protections for political speech.

“These types of threats are particularly dangerous when made in a charged political environment that has already led to the overrunning of the United States Capitol and the interruption, for the first time in United States history, of the certification of a presidential election,” federal prosecutors in Brooklyn said in a court filing last month.

Mr. Hunt faces one count of threatening to murder members of Congress, which carries a maximum sentence of 10 years in prison. In December, Mr. Hunt posted on Facebook urging a “public execution” of prominent Democratic politicians, including the House speaker, Nancy Pelosi, Representative Alexandria Ocasio-Cortez and Senator Chuck Schumer, according to prosecutors.

Mr. Hunt’s lawyers have described the case as a groundbreaking prosecution, arguing that the government was trying to criminalize Mr. Hunt’s political opinions. Mr. Hunt had no weapons, no plans to carry out violence and no affiliations with organized groups, his lawyers said. He was ranting into the vast internet void, they argue, with no expectation that anyone would act on his words.

“Seen in context, the posts are more consistent with intoxication than insurrection,” his lawyers wrote.

Jan Rostal, a federal defender for Mr. Hunt, said in a statement that the First Amendment encouraged political debate “in the town square, not in secret, so bad ideas can get tested.”

Prosecutors will show that Mr. Hunt, a fervent supporter of Mr. Trump, was furious about the outcome of the 2020 presidential election and believed members of Congress were “traitors” for supporting an election result that he viewed as illegitimate.

In the video that Mr. Hunt shared two days after the Capitol riot, he used references that are known to white supremacists, prosecutors said. The video was posted on BitChute, a platform with less restrictive moderation policies than YouTube, which has cracked down on the spread of hate speech and conspiracy theories.

In a court filing, Mr. Hunt’s lawyers said he removed the video within two days of posting it. It was a “fellow conservative” who saw the video on BitChute and alerted the F.B.I., they wrote.

In December, Mr. Hunt wrote on Facebook describing Mr. Schumer, Ms. Pelosi and Ms. Ocasio-Cortez as the sort of “high value targets” that Mr. Trump’s supporters should shoot, prosecutors said. “They really need to be put down,” he wrote, according to the complaint. “These commies will see death before they see us surrender!”

ny times logoNew York Times, Manhattan to Stop Prosecuting Prostitution, Part of Nationwide Shift, Jonah E. Bromwich, Updated April 22, 2021. The district attorney, Cyrus R. Vance Jr., moved to dismiss thousands of cases dating back decades, amid a growing movement to change the criminal justice system’s approach to prostitution.

The Manhattan district attorney’s office announced Wednesday that it would no longer prosecute prostitution and unlicensed massage, putting the weight of one of the most high-profile law enforcement offices in the United States behind the growing movement to change the criminal justice system’s approach to sex work.

The district attorney, Cyrus R. Vance Jr., asked a judge on Wednesday morning to dismiss 914 open cases involving prostitution and unlicensed massage, along with 5,080 cases in which the charge was loitering for the purposes of prostitution.

The law that made the latter charge a crime, which had become known as the “walking while trans” law, was repealed by New York State in February.

The announcement represents a substantive shift in the Manhattan district attorney’s approach to prostitution. Many of the cases Mr. Vance moved to dismiss dated to the 1970s and 1980s, when New York waged a war against prostitution in an effort to clean up its image as a center of iniquity and vice.

“Over the last decade we’ve learned from those with lived experience, and from our own experience on the ground: Criminally prosecuting prostitution does not make us safer, and too often, achieves the opposite result by further marginalizing vulnerable New Yorkers,” Mr. Vance said in a statement.

The office will continue to prosecute other crimes related to prostitution, including patronizing sex workers, promoting prostitution and sex trafficking, and said that its policy would not stop it from bringing other charges that stem from prostitution-related arrests.

That means, in effect, that the office will continue to prosecute pimps and sex traffickers, as well as people who pay for sex, continuing to fight those who exploit or otherwise profit from prostitution without punishing the people who for decades have borne the brunt of law enforcement’s attention.

Manhattan will join Baltimore, Philadelphia and other jurisdictions that have declined to prosecute sex workers. Brooklyn also does not prosecute people arrested for prostitution, but instead refers them to social services before they are compelled to appear in court — unless the district attorney’s office there is unable to reach them.

The Brooklyn district attorney, Eric Gonzalez, in January moved to dismiss hundreds of open cases related to prostitution and loitering, and said that he would eventually ask that more than a thousand be dismissed. The Queens and Bronx district attorneys followed in March, moving to dismiss hundreds of prostitution-related cases.

April 19

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ny times logoNew York Times, Analysis: The Supreme Court’s Increasingly Dim View of the News Media, Adam Liptak, right, April 19, 2021. A comprehensive look at references to adam liptakthe press in justices’ opinions revealed “a marked and previously undocumented uptick in negative depictions.”

Last month, in a dissent in a routine libel case, a prominent federal judge lashed out at the news media.

“Two of the three most influential papers (at least historically), The New York Times and The Washington Post, are virtually Democratic Party broadsheets,” wrote Judge Laurence H. Silberman of the U.S. Court of Appeals for the District of Columbia Circuit. “And the news section of The Wall Street Journal leans in the same direction.”

“Nearly all television — network and cable — is a Democratic Party trumpet,” he wrote. “Even the government-supported National Public Radio follows along.”

clarence thomas HRThe dissent endorsed a 2019 opinion from Justice Clarence Thomas, left, calling for the Supreme Court to reconsider New York Times v. Sullivan, the landmark 1964 ruling that made it hard for public officials to win libel suits.

The negative views from the bench of the news media may not be outliers. A new study, to be published in The North Carolina Law Review, documents a broader trend at the Supreme Court. The study tracked every reference to the news media in the justices’ opinions since 1784 and found “a marked and previously undocumented uptick in negative depictions of the press by the U.S. Supreme Court.”

The study was not limited to cases concerning First Amendment rights. It took account of “all references to the press in its journalistic role, to the performance of commonly understood press functions or to the right of press freedom.” Many of these references were in passing comments in decisions on matters as varied as antitrust or criminal law.

“A generation ago, the court actively taught the public that the press was a check on government, a trustworthy source of accurate coverage, an entity to be specially protected from regulation and an institution with specific constitutional freedoms,” wrote the study’s authors, RonNell Andersen Jones, a law professor at the University of Utah, and Sonja R. West, a law professor at the University of Georgia. “Today, in contrast, it almost never speaks of the press, press freedom or press functions, and when it does, it is in an overwhelmingly less positive manner.”

Compare, for instance, Justice Hugo Black’s concurring opinion in 1971 in the Pentagon Papers case, allowing publication of a secret history of the Vietnam War, with Justice Anthony M. Kennedy’s majority opinion in 2010 in the Citizens United campaign finance case.

Justice Black wrote that “The New York Times, The Washington Post and other newspapers should be commended for serving the purpose that the founding fathers saw so clearly.”

President Donald Trump officialThere may be many reasons for the shift documented in the study beyond a change in judicial attitudes. The news media may have become less trustworthy and more ideologically skewed. It has certainly become more various and harder to define. And it has been the subject of relentless attack from politicians, notably former President Donald J. Trump.

“Some shift might be expected,” Professor Jones said in an interview. “But the uniformity and degree of it was pretty staggering. On every meaningful measure we could come up with, the current court is significantly less positive about press-related matters.”

The study found that conservative justices have always been more apt to write negative things about the press. The new development is that liberal justices now have little good to say about it.

“The press, therefore, seems to be experiencing the double whammy of compounded negativity from the ideological group at the court that has been historically negative (the conservative justices) and a loss of positivity from the ideological group that has been historically positive (the liberal justices),” the study said. “Ideology is simply no longer predictive of positive treatment.”

April 18

washington post logoWashington Post, Book Review: Seeing a threat to democracy in a conservative Supreme Court, Geoffrey R. Stone (right, professor and former dean, University geoffrey stoneof Chicago School of law), April 18, 2021 (print ed.). Ian Millhiser argues that the Supreme Court’s 6-to-3 conservative majority is skewing the law to benefit the Republican Party.

In The Agenda: How a Republican Supreme Court Is Reshaping America, Ian Millhiser examines the current makeup of the Supreme Court and how it is likely to affect our democracy. This question is especially important in light of the wave of Republican state legislation designed to undermine the voting rights of racial minorities and other supporters of the Democratic Party. At this pivotal moment, the core precepts of our democracy are once again at risk. Will the Supreme Court live up to its essential responsibility to protect our profound constitutional commitment to democracy and equality?

ian millhiser agenda coverIn this short and very accessible work, Millhiser focuses on four facets of the court’s current and future jurisprudence: the right to vote, the dismantling of the administrative state, religion and the right to sue. It is a bit surprising that Millhiser, a senior correspondent at Vox, does not address such issues as abortion rights, gay rights and affirmative action. Although he holds out little, if any, hope that the current Supreme Court will act appropriately with respect to those matters, he maintains that, in terms of our democracy, they are less important than the four issues on which he focuses.

The most discomforting of those is the right to vote, which, of course, lies at the very heart of our democracy. At the center of today’s crisis are the ever-more-aggressive efforts of Republican legislatures to find ways to effectively disenfranchise Democratic voters — and especially Black voters. In recent years, the Roberts court has often evaded its responsibilities in this realm. In Crawford v. Marion County Election Board, for example, the court in 2008 upheld an Indiana voter ID law that would clearly have a disproportionate effect on Black voters, even though there was no evidence that the law would meaningfully deter voter fraud.

Even more dramatically, in Shelby County v. Holder, the Roberts court in 2013 held unconstitutional Section 5 of the Voting Rights Act of 1965, which required states and localities with a history of racial voter suppression to submit proposed changes to their election laws either to the Justice Department or to a federal court in Washington, which would not approve the changes if they had the purpose or effect of “abridging the right to vote on account of race or color.” The impact of this decision has been “profound.”

In Millhiser’s words, “many Republicans recognized immediately that they’d been given a gift,” and GOP legislators have acted quickly and aggressively to enact laws, especially in the South, that have had a significant role in preventing minority voters from exercising their most fundamental constitutional right. In light of the current makeup of the court, this trend toward allowing manipulation of the electoral process to benefit Republican candidates is likely, Millhiser predicts, to escalate. The new Georgia law on voting, which has generated a great deal of controversy, is an example of what Millhiser anticipates and fears.

Adding insult to injury, in Rucho v. Common Cause, decided in 2019, the Roberts court held that partisan gerrymandering is not unconstitutional, although it permits a state legislature to draw district lines in a way that ensures that the party in control will remain in control, even if its candidates statewide receive far less than 50 percent of the vote. As Millhiser notes, Republicans in the future “could gain a lock on the House of Representatives, not because they necessarily have the votes to win elections, but because the Supreme Court is likely to remove nearly all remaining safeguards against gerrymandering.”

The court’s actions on voting rights reflect only one part of its conservative activism. Millhiser explains that over the past decade the court has dismantled much of America’s campaign finance law; crippled the Affordable Care Act’s Medicaid expansion; created a religious exemption doctrine that permits a person or a company objecting to compliance with a law for religious reasons to deny the rights of employees and third parties; undermined the ability of public-sector unions to raise money; and halted President Barack Obama’s Clean Power Plan, among other decisions in a similar vein. And, he notes, with “Republicans now controlling two-thirds of the seats on the Supreme Court, the Court could potentially sabotage any policy initiative pushed by President Joe Biden.”


Lisa Monaco, Biden nominee for Deputy Attorney General, briefs then-President Obama in the Oval Office on Sept. 16, 2013 (White House photo).

Lisa Monaco, Biden nominee for Deputy Attorney General, briefs then-President Obama in the Oval Office on Sept. 16, 2013 (White House photo).

ny times logoNew York Times, Biden Choice for Justice Dept.’s No. 2 Is Seen as a Consensus Builder, Katie Benner, April 18, 2021 (print ed.). Lisa Monaco, a veteran of national security posts, is expected to be a key player in the administration’s push to combat domestic extremism.

Lisa Monaco was President Barack Obama’s top counterterrorism adviser when she was handed an intractable problem: Fix the administration’s ineffective response to the kidnappings of Americans by Islamic State fighters, which had prompted outcries from victims’ families, without changing the government’s refusal to make concessions to terrorists.

Ms. Monaco quickly instituted a change, according to Matthew Olsen, a former director of the National Counterterrorism Center. She mandated that the families, who had been kept in the dark about the government’s restrictions and had even faced threats of prosecution should they pay ransoms themselves, be brought into the fold. Most had lost faith in the government, and she sought them out to ensure that a new hostage policy was fair and credible.

Justice Department log circular“For the administration to realize it was not handling this right was a lot to Lisa’s credit,” said Diane Foley, whose son James Foley was the first American to be beheaded by the Islamic State in 2014. After Ms. Monaco’s team completed its review, the administration adopted a policy that included advising families of all their options and refraining from threats of prosecution. Mr. Obama acknowledged that the government should have treated them as “trusted partners.”

Now Ms. Monaco, 53, a veteran of national security roles, is poised to become the deputy attorney general — the Justice Department’s No. 2 official — where her ability to broker consensus on politically charged issues will quickly be tested. Among other matters, she is expected to be a key player in the Biden administration’s push to combat domestic extremism, embodied most publicly in the Justice Department’s investigation into the deadly Capitol attack on Jan. 6 by a pro-Trump mob.

Her experience with cyberissues will help give her office an influential voice as the Biden administration confronts threats from countries like Russia, which it penalized on Thursday for hacking American government agencies and companies and for interfering in the 2020 presidential election.

Ms. Monaco will also work closely with Attorney General Merrick B. Garland to rebuild trust in the Justice Department after it became a target of President Donald J. Trump and his allies.

Her résumé makes her uniquely suited to tackle the department’s biggest issues, which include not only domestic extremism but also foreign cyberattacks, a sensitive investigation into Mr. Biden’s son and an open special inquiry into the roots of the Russia investigation.

April 15

Jeffrey Epstein and Ghislaine Maxwell in 2005. Credit Joe Schildhorn/Patrick McMullan via Getty Images

Jeffrey Epstein and Ghislaine Maxwell in 2005 (Joe Schildhorn / Patrick McMullan,via Getty Images)

Miami Herald, Appeals court upholds deal that silenced Epstein victims, Julie K. Brown, April 15, 2021. Appeals court upholds Jeffrey Epstein deal that minimizedmiami herald logopunishment, silenced victims.

How a Miami Herald investigation "Perversion of Justice" and the voices of four brave survivors, once silenced by the courts, helped to blow up Jeffrey Epstein’s sweetheart deal,  Brittany Peterson | Emily Michot (Video investigation).

In a landmark decision, a U.S. appeals court on Thursday rejected the 12-year quest of a Jeffrey Epstein survivor to hold the government accountable for giving the infamous child predator a clandestine deal that essentially allowed him to get out of jail after a minimal sentence, and, according to recent lawsuits, continue to abuse girls and women.

The 7-4 decision by the 11th Circuit Court of Appeals was split mostly along gender lines, with four female judges issuing a scathing rebuke of the majority’s interpretation of the Crime Victims’ Rights Act (CVRA). The decision, unless it is overturned on further appeal, could allow wealthy defendants to continue to arrange favorable plea deals from the government without any oversight or accountability, said an attorney who originally filed the challenge.

“The ruling is very disturbing. It sets up two systems of justice, one for wealthy defendants who can negotiate deals before charges are filed — and one for most criminal defendants, who don’t have the wealth and power to arrange those kinds of deals,’’ said the attorney, Paul Cassell.

The plaintiff, Courtney Wild, was 14 when she was first raped by Epstein at his Palm Beach mansion. Wild, now 33, has waged a one-woman crusade against the federal government on behalf of Epstein’s victims since the case was filed in 2008.

courtney wild

While underage, Courtney Wild was a victim of Jeffrey Epstein (Photo by Emily Michot / Miami Herald)

The court ruled that, because federal prosecutors never lodged criminal charges against Epstein — he pleaded guilty and was sentenced in state court in Palm Beach County — neither Wild nor any of Epstein’s victims has standing to successfully file such a challenge citing the federal Crime Victims’ Rights Act.

perversion of justice miami herald logoCircuit Judge Kevin C. Newsom, in writing the majority’s opinion, said that while “we have the profoundest sympathy for Ms. Wild and others like her, who suffered unspeakable horror at Epstein’s hands, only to be left in the dark — and, so it seems, affirmatively misled by government attorneys,’’ the court nevertheless concludes that the CVRA doesn’t give crime victims the right to file a lawsuit or seek judicial enforcement of the law.

The CVRA, passed by Congress in 2004, enumerates certain rights that victims of crimes are entitled to during the criminal justice process. Among them: that victims have a right to confer with prosecutors about their case, that they should be treated with fairness and that they be given an opportunity to appear at sentencing.

Years later, Epstein's victims discuss the lasting impact of sexual abuse. Victims of Jeffery Epstein share the emotional toll that sexual abuse has taken on them — even years after the abuse occurred. Miami Herald reporter Julie K. Brown interviewed the young women, most speaking for the first time about Epstein. By Emily Michot | Julie K. Brown

Epstein signed a secret plea agreement with federal prosecutors in September 2007, agreeing to shift the case into state court. Despite the fact that a deal had jeffrey epstein sex offenderbeen negotiated and signed, federal authorities met with Wild in January 2008 and assured her that the investigation into Epstein was continuing. She didn’t learn about the deal until well after Epstein was sentenced and sent to the Palm Beach County jail, where he would serve just 13 months, most of it while on work release. He was let out for good in 2009.

Epstein’s deal was sealed by federal prosecutors at the behest of Epstein’s high-powered lawyers, who reasoned that if the victims found out, they might strenuously object and even convince the judge to derail the deal.

The Epstein case was detailed in a 2018 Miami Herald series, “Perversion of Justice,’’ that led federal prosecutors to take another look at the crime. Epstein was arrested on sex trafficking charges six months later in the Southern District of New York. One month after that, however, he was dead. The medical examiner ruled that he hanged himself at the Metropolitan Correctional Center in Manhattan.

frank hull resized In her dissenting opinion, Senior Circuit Judge Frank Hull, right, skewered the majority’s “sense of sorrow,’’ over not being able to give Epstein’s victims justice. Noting that the decision would have far-reaching impact in other cases involving wealthy defendants, she said the ruling “leaves federal prosecutors free to engage in the secret plea deals and deception’’ before criminal charges are ever made public, resulting in “the travesty” that happened in the Epstein case.

She also noted that “the Department of Justice’s failure to discipline its own prosecutors heightens the importance of the CVRA’s private right alexander acosta labor oof action.’’

DOJ’s investigation found that prosecutors exercised “poor judgment,’’ but stopped short of recommending sanctions against prosecutors, including Alexander Acosta, the U.S. Attorney in Miami who approved the secret deal.

Acosta (left, later U.S. Labor Secretary under President Trump) declined to comment on the ruling.

“Most would-be defendants lack resources and usually have no counsel during this pre-charge period,’’ Hull pointed out, referring to the time before a defendant is formally charged with a crime. “Consequently, they do not have the pre-charge opportunity to negotiate the kind of extremely favorable deal that Epstein received.’’

virginia roberts giuffre nbc screenshot
Virginia Roberts was working at Mar-a-Lago at age 17 when she was recruited to be a masseuse to Palm Beach hedge fund manager Jeffrey Epstein. She was lured into a life of depravity and sexual abuse. (Story by Emily Michot | Julie K. Brown, photo via recent NBC screenshot).

Cassell suggested that the case would be appealed to the U.S. Supreme Court. In the meantime, Wild continues to lobby Congress to pass the Courtney Wild Crime Victims’ Rights Reform Act, which would strengthen the law and close loopholes that federal prosecutors used to exploit the law and justify giving Epstein one of the most lenient plea deals for a serial sex offender in history.

His alleged madam, Ghislaine Maxwell, was arrested in July and now faces sex trafficking charges in connection with Epstein’s crimes. Her trial is scheduled for July 2021.

Since Epstein’s arrest, several women have filed lawsuits claiming that they were sexually abused while Epstein was on work release and after he was released from jail.

Thus far, Epstein’s estate has paid out more than $67 million in damages to more than 175 victims who have come forward alleging they were abused by Epstein.

Roll Call, Supreme Court expansion bill faces serious blocks across political spectrum, Todd Ruger, April 15, 2021. Democratic leaders want to wait on study by Biden commission.

Before a quartet of Democratic members of Congress could take to the steps of the Supreme Court on Thursday to tout a new bill that would expand the number of justices from nine to 13, leaders of their party were already deflating that effort.

“I have no plans to bring it to the floor,” Speaker Nancy Pelosi said of the measure, pointing instead to a 36-member commission President Joe Biden announced last week to study Supreme Court expansion and other issues with the federal courts.

richard durbin h“I’m not ready to sign on yet,” said Senate Majority Whip Richard J. Durbin, left, who also runs the Judiciary Committee. “I think this commission of Biden is the right move. Let’s think this through carefully. This is historic.”

edward markey resized oSo the first question to Sen. Edward J. Markey, right, at the Thursday news conference outside the high court was: “Where exactly do you go from here?”

The Massachusetts Democrat and the three others who introduced the bill — House Judiciary Chairman Jerrold Nadler and Rep. Mondaire Jones, both of New York, and Georgia Rep. Hank Johnson — defended the legislation’s introduction as necessary to start debate on the issue.

But they acknowledged the difficult road ahead. That includes changing longstanding rules in the Senate that allow the minority party to block legislation through the filibuster, since Republican senators are unlikely to vote for a bill that would flip the ideological balance of the court from a 6-3 conservative majority to a 7-6 liberal majority.

Texas GOP Sen. Ted Cruz, for example, went on Fox Business before the Democratic news conference to say that the bill would mean the end of free speech, religious liberty and gun rights.

Markey acknowledged that the measure the legislation would not pass the Senate under current circumstances.

“Ultimately, we have to repeal the filibuster. And then we can move this legislation,” he said. “Clearly, we would want Republicans to vote with us, but if they are not willing to participate in that effort, then we can still do this on a … basis of 51 votes.”

jerry nadler smileNadler, right, and the other backers of the legislation said the Supreme Court itself would make the case for the bill with their Democratic colleagues.

“I believe that as events unfold, as the court comes down with decisions destructive to a woman’s right to choose, as they come down with decisions destructive to the climate, as they come down with decisions destructive of civil liberties, I believe that the speaker and others will come along,” Nadler said.

But Nadler wasn’t exactly forceful when asked if he would bring it up for a vote at the Judiciary Committee. “We’ll have to see where it fits in our schedule, but I anticipate it,” he said.

Johnson hinted that another reason for the bill might be to curtail some of the decisions Democrats oppose before they happen. “The court needs to know that the people are watching,” he said.

The threat of expanding the Supreme Court may be one reason the justices have taken a long time to decide what to do with a closely watched challenge to a Mississippi law that some see as an opportunity for the high court to erode the constitutional right to an abortion first established in the 1973 Roe v. Wade decision.

“There are few circumstances under which I can imagine Congress expanding the Court, but a big, clear reversal of Roe might be an exception,” tweeted Mary Mitchell_McConnellZiegler, a law professor at Florida State University who has published two books on the history of abortion in America.

Senate Minority Leader Mitch McConnell, left, said the bill showed that the “left wants a sword dangling over the justices when they weigh the facts in every case.”

“The threats are the point. The hostage-taking is the point,” the Kentucky Republican said on the floor Thursday. “And responsible people across the political spectrum have an absolute duty to denounce this."

Justice Stephen G. Breyer indicated recently that the Supreme Court is indeed paying attention, when he used a speech at Harvard Law School to warn lawmakers that expanding the number of justices would erode public trust in its decisions.

April 11

washington post logoWashington Post, Court-packing isn’t the right fix for our courts. Ending life tenure is, Editorial Board, April 11, 2021 (print ed.). The political likelihood of growing the court, not high to begin with, has shrunk considerably with Sen. Joe Manchin III’s (D-W.Va.) emphatic refusal to overturn the filibuster — without which court-expansion legislation probably can’t pass the Senate. Still, as a rallying cry on the left, the idea is not going away and thus is still worth scrutinizing. It would essentially respond to Republican politicization of the court with Democratic counter-politicization. That would be understandable, given GOP Senate leader Mitch McConnell’s manipulation of the process to thwart consideration of President Barack Obama’s nominee in 2016 — but the court itself could be collateral damage.

One apostle of the latter concern is Justice Stephen G. Breyer, who urged in a Harvard Law School lecture Tuesday that “those whose initial instincts may favor important structural change . . . such as forms of court-packing, think long and hard before they embody those changes in law.” Speaking for nearly two hours, and drawing on his long experience in the law, including nearly 27 years as a Democratic president’s liberal appointee on the high court, Justice Breyer, 82, noted that the court’s effectiveness hinges on its legitimacy, which hinges on the perception that “the court is guided by legal principle, not politics.” That perception would be eroded if one party changed the court’s long-standing nine-member size to further policy objectives.

The justices’ rulings obviously reflect their ideology and political preference, but not in a simple, deterministic way, Justice Breyer argued. He pointed out several cases in which the current GOP-dominated court had ruled contrary to President Donald Trump’s interests or to policies favored by Republicans generally.

Encouragingly, the broad mandate Mr. Biden has assigned the commission allows it to examine what is a valid area for potential Supreme Court reform: replacing life tenure, instituted in 1788, at a time of much shorter life expectancy, with an 18-year term. That would drain some of the intensity from Supreme Court politics by providing both parties with foreseeable, regular opportunities to nominate justices — thus lowering the stakes of each vacancy. It would allow presidents to nominate the most qualified justices, rather than looking for the youngest plausible nominees. Term limits should be high on Mr. Biden’s commission’s agenda

April 10

ny times logoNew York Times, Supreme Court Lifts Pandemic Restrictions on Prayer Meetings in Homes, Adam Liptak, April 10, 2021. The 5-4 ruling, which involved a California case, shows how the court has changed since Justice Amy Coney Barrett replaced Ruth Bader Ginsburg.

The Supreme Court late Friday night lifted California’s restrictions on religious gatherings in private homes, saying they could not be enforced to bar prayer meetings, Bible study classes and the like. The court’s brief, unsigned order followed earlier ones striking down limits on attendance at houses of worship meant to combat the coronavirus.

The vote was 5 to 4, with Chief Justice John G. Roberts Jr. joining the court’s three liberal members in dissent.

The unsigned majority opinion expressed impatience with the federal appeals court in California, the United States Court of Appeals for the Ninth Circuit, saying it had repeatedly disregarded the Supreme Court’s instructions. “This is the fifth time the court has summarily rejected the Ninth Circuit’s analysis of California’s Covid restrictions on religious exercise,” the opinion said.

The majority said California had violated the Constitution by disfavoring prayer meetings. “California treats some comparable secular activities more favorably than at-home religious exercise, permitting hair salons, retail stores, personal care services, movie theaters, private suites at sporting events and concerts and indoor restaurants,” the opinion said.

In dissent, Justice Elena Kagan, joined by Justices Stephen G. Breyer and Sonia Sotomayor, said the majority had compared in-home prayer meetings with the wrong kinds of activities.

“The First Amendment requires that a state treat religious conduct as well as the state treats comparable secular conduct,” Justice Kagan wrote. “Sometimes finding the right secular analogue may raise hard questions. But not today.

U.S. Attorney Gen. Ramsey Clark, left, whose father Tom Clark resigned a U.S. Supreme Court post to enable his appointment, greets President Lyndon Johnson at the White House.

U.S. Attorney Gen. Ramsey Clark, left, whose father Tom Clark resigned a U.S. Supreme Court post to enable his appointment, greets President Lyndon Johnson at the White House.

ny times logoNew York Times, Ramsey Clark, Attorney General and Rebel With a Cause, Dies at 93, Douglas Martin, April 10, 2021. Mr. Clark oversaw the drafting of the Fair Housing Act in 1968 and went on to defend both the disadvantaged and the unpopular.

Ramsey Clark, who championed civil rights and liberties as attorney general in the Johnson administration, then devoted much of the rest of his life to defending unpopular causes and infamous people, including Saddam Hussein and others accused of war crimes, died on Friday at his home in Manhattan. He was 93.

In becoming the nation’s top law enforcement official, Mr. Clark was part of an extraordinary father-and-son trade-off in the federal halls of power. His appointment prompted his father, Justice Tom C. Clark, to resign from the United States Supreme Court to avoid the appearance of any conflict of interest involving cases in which the federal government might come before that bench.

To fill Justice Clark’s seat, President Lyndon B. Johnson appointed Thurgood Marshall, who became the first African-American to serve on the Supreme Court.

April 9

 supreme court Custom

ny times logoNew York Times, Biden Creating Commission to Study Expanding the Supreme Court, Michael D. Shear and Carl Hulse, April 9, 2021. The White House is taking action after progressives pushed to add seats to the court to balance the conservative stamp put on it by former President Trump.

President Biden on Friday will order a 180-day study of adding seats to the Supreme Court, making good on a campaign-year promise to establish a bipartisan commission to examine the potentially explosive subjects of expanding the court or setting term limits for justices, White House officials said.

The president acted under pressure from activists pushing for more seats to alter the ideological balance of the court after President Donald J. Trump appointed three justices, including one to a seat that Republicans had blocked his predecessor, Barack Obama, from filling for almost a year.

amy coney barrett headshot notre dame photoThe result is a court with a stronger conservative tilt, now 6 to 3, after the addition of Mr. Trump’s choices, including Justice Amy Coney Barrett, right, who was confirmed to replace Justice Ruth Bader Ginsburg just days before last year’s presidential election.

But while Mr. Biden, a former chairman of the Senate Judiciary Committee, has asserted that the system of judicial nominations is “getting out of whack,” he has declined to say whether he supports altering the size of the court or making other changes — like imposing term limits — to the current system of lifetime appointments.

It is not clear that the commission established by Mr. Biden will by itself clarify his position. Under the White House order establishing it, the commission is not set to issue specific recommendations at the end of its study — an outcome that is likely to disappoint activists.

In his executive order on Friday, the president will create a 36-member commission charged with examining the history of the court, past changes to the process of nominating justices, and the potential consequences to altering the size of the nation’s highest court.

robert bauerThe panel will be led by Bob Bauer, left, who served as White House counsel for Mr. Obama, and Cristina Rodriguez, a Yale Law School professor who served as deputy assistant attorney general in the Office of Legal Counsel under Mr. Obama.

Progressives say that Republicans unfairly gained an advantage on the court by blocking Mr. Obama’s nomination of Judge Merrick B. Garland in 2016, and they see adding seats to the court, setting term limits or instituting other changes as a way to offset the power of any one president to influence its makeup. Conservatives have denounced the effort as “court-packing” similar to the failed effort by President Franklin D. Roosevelt in the 1930s.

The issue of whether to alter the size of the court, which has been set at nine members since just after the Civil War, is highly charged, particularly when Congress is almost evenly divided between the two parties. An attempt by Mr. Biden to increase the number of justices would require approval of Congress and would be met by fierce opposition.

April 8

ny times logoNew York Times, Opinion: This Is What Judicial Activism Looks Like on the Supreme Court, Linda Greenhouse (shown at right on the cover of her memoir, April 8, 2021. In a dissent, two conservative linda greenhouse cover just a journalistjustices invite a case to overturn a precedent on religion in the workplace that they dislike.

The Supreme Court’s refusal this week to hear a case challenging a 44-year-old precedent on the obligation of employers to accommodate their employees’ religious needs seemed destined to escape public notice as just another of the thousands of petitions the court turns down without explanation every term (more than 90 this week alone).

But Justices Neil Gorsuch, below left, and Samuel Alito made sure that Small v. Memphis Light, Gas & Water didn’t simply disappear. They wrote an neil gorsuch circuit portraitopinion dissenting from the denial of review, taking up the petitioner’s call to overturn a 1977 case called Trans World Airlines v. Hardison. They found nothing deficient about the appeal. “There is no barrier to our review and no one else to blame,” they wrote. “The only mistake here is of the court’s own making — and it is past time for the court to correct it.”

There is nothing particularly unusual about justices dissenting publicly from their colleagues’ refusal to hear a case. Nor is it rare for this particular precedent to be a target.

Publishing a dissent of this sort is a kind of Supreme Court performance art. Dissenting justices want to set down a marker to identify an issue and solicit future attempts to garner the four votes required to accept a case.

Although I know all this, something about this particular dissent, barely five pages long, jumped out at me. It left me with this thought: This is what judicial activism looks like.

April 7

washington post logoWashington Post, Justice Breyer says expanding the Supreme Court could erode trust, Robert Barnes, April 7, 2021 (print ed.). Justice Stephen G. Breyer said Tuesday that proposals to expand the Supreme Court to dilute the power of its conservative majority risk making justices appear more political and could hurt the court’s influence with the public.

Breyer, one of the court’s three liberals, defended the court’s independence by pointing to its decision to resist President Donald Trump’s attempts to draw the court into lawsuits that sought to overturn Trump’s defeat in November.

stephen breyer full portraitIn remarks prepared for a speech at Harvard Law School, Breyer, right, wrote that the court’s authority depends on “a trust that the court is guided by legal principle, not politics.”

He added: “Structural alteration motivated by the perception of political influence can only feed that perception, further eroding that trust.”

harvard logoSome Democrats and liberal activists say that adding seats to the court is the only way to blunt the court’s conservative majority.

They contend it is a proper and logical response to what they say was a form of court-packing by Senate Republicans. The GOP-led Senate refused to fill a vacancy that came open during Barack Obama’s presidency, and rushed to confirm Justice Amy Coney Barrett just days before the presidential election where Trump appeared likely to lose.

The court is widely acknowledged to have a 6-to-3 conservative majority, but Breyer even took issue with that. He pointed to the justices’ decision to defy Trump’s insistence that it get involved in the results of the recent election.

“The court’s decision in the 2000 presidential election case, Bush v. Gore, is often referred to as an example of its favoritism of conservative causes,” Breyer said. “But the court did not hear or decide cases that affected the political disagreements arising out of the 2020 Trump v. Biden election.”

 washington post logoWashington Post, Rep. Alcee Hastings 1936–2021, Harrison Smith, April 7, 2021 (print ed.). Rep. Alcee L. Hastings, a charismatic civil rights lawyer who became Florida’s first Black federal judge, was impeached on corruption charges and made a remarkable comeback as a liberal Democratic member of the U.S. House and the dean of his state’s congressional delegation, died April 6. He was 84.

alcee hastings oRep. Hastings, right, announced in 2019 that he was being treated for pancreatic cancer.

A pathbreaking jurist and politician, Rep. Hastings was appointed to the federal bench by President Jimmy Carter in 1979. He became one of Florida’s first three Black members of Congress since Reconstruction when, in 1992, he was elected alongside fellow Democrats Corrine Brown and Carrie Meek.

Rep. Hastings’s arrival in the House of Representatives was a stunning turn of events. The chamber had voted only five years earlier to impeach him, in the aftermath of an FBI sting operation and bribery investigation that made him the sixth federal judge to be removed from office.

Compared at times to the equally flamboyant Marion Barry, who weathered a drug arrest and jail sentence before winning a fourth term as D.C. mayor, Rep. Hastings went on to win reelection 14 times, running on a progressive agenda that called for affordable day care, universal health care, family and medical leave for all workers, and a ban on assault weapons.

He became a senior Democrat on the House Rules Committee, which determines when and how a bill reaches the floor, and in 2004, he was elected president of the Organization for Security and Cooperation in Europe’s Parliamentary Assembly, which promotes arms control and human rights. Later he served as chairman of the OSCE’s U.S. counterpart, a federal agency known as the Helsinki Commission.

April 5

Raw Story, Clarence Thomas moves to erode First Amendment in retaliation against tech companies that punished Trump, David Edwards, April 5, 2021. Clarence Thomas moves to erode First Amendment in retaliation against tech companies that punished Trump.

clarence thomas w new officialConservative Supreme Court Justice Clarence Thomas, right, says that judges will soon have "no choice" but to regulate the tech companies that punished former President Donald Trump for inciting a failed insurrection.

Thomas made the remarks in a Monday Supreme Court opinion that vacated a lower court ruling, which had prevented Trump from blocking certain Twitter followers who he did not want to comment on his tweets.

Thomas, who traditionally sides with corporations, suggested that the high court would allow Congress to erode the First Amendment by arguing that tech companies do not have the free speech rights to control their platforms.

"The petitions highlight two important facts. Today's digital platforms provide avenues for historically unprecedented amounts of speech, including speech by government actors," Thomas wrote. "Also unprecedented, however, is the concentrated control of so much speech in the hands of a few private parties."

washington post logoWashington Post, Supreme Court sides with Google in copyright dispute over coding in its Android operating system, Robert Barnes and Jay Greene, April 5, 2021. The justices ruled that Google did not violate copyright law when it developed its Android mobile operating system using code from Oracle. The case has broad ramifications for the software industry.

google logo customThe Supreme Court on Monday said Google did not violate copyright law when it developed its Android mobile operating system using code from Oracle, a much-anticipated ruling in the tech world that saves Google billions of dollars in potential damages.

The court ruled 6 to 2 for Google in the case, which has major implications for the software industry. The case was argued before Justice Amy Coney Barrett joined the court and she did not take part in the decision.

“We assume, for argument’s sake, that the material was copyrightable,” Justice Stephen G. Breyer wrote for the majority. “But we hold that the copying here at issue nonetheless constituted a fair use. Hence, Google’s copying did not violate the copyright law.”

Justices Clarence Thomas and Samuel A. Alito Jr. dissented.

Oracle had alleged in the decade-old case that Google infringed on copyrights related to using roughly 11,500 lines of code from the Java programming platform to develop Android. Oracle, which acquired Java in 2010 when it bought Sun Microsystems, has sought $9 billion in damages, arguing that Google used the code without its permission.

April 3

Proof via Substack, Investigation: A Comprehensive Guide to Those Responsible for the January 6 Insurrection, Seth Abramson, left, April 3, 2021 (excerpted below to about one-fourth published length). This primer also explains, in seth abramson headshotdetail, how and seth abramson proof logowhy the attack on the Capitol occurred.

The Department of Justice calls the FBI investigation into the January 6 assault on the United States Capitol one of the largest criminal probes in American history. One of the reasons the investigation is so historically vast and complex is that it encompasses five discrete yet overlapping classes of potential criminal defendants.

This article details those five classes, establishes the key intersections between each, identifies a small number of key events in the lead-up to the insurrection, and presents an overarching narrative—confirmed by both testimonial and documentary evidence—of how the insurrection occurred.

The Five Classes of Insurrectionists

Paramilitaries: The Proud Boys, Oath Keepers, Three Percenters, Boogaloo Bois, QAnoners, and 8kun (an online community of trolls) all had a significant presence at the Capitol on January 6, as well as a patchwork of lesser-known entities that included smaller white supremacist organizations, militias, independently operating trolls from the internet, and heterogeneous breeds of conspiracy theorist.

Grassroots Organizations: This category includes at least six grassroots organizations (Stop the Steal, Women for Trump, Latinos for Trump, Students for Trump, Jericho March, and Women for America First, this last an outgrowth of Women for Trump) as well as a number of pro-Trump PACs or nonprofits (among them Save America PAC, America First Policies, and the Council for National Policy) that were involved in planning, funding, promoting, and/or coordinating the events of January 6.

The Trump Campaign: Officially, the 2020 Trump campaign began dissolving shortly after the 2020 election, but a sufficient number of loyalists and dead-enders remained to seek to assist Trump in overturning the November election. Many of these individuals had longstanding ties to the Trump family, the Trump administration, or a past Trump political campaign.

Independent Agitators and Enablers: Trump’s brand of personal and professional corruption has always attracted a bizarre swarm of persons that includes dissolute grifters, deranged ideologues, and foreign agents—essentially, unscrupulous but sufficiently well-resourced people who see in Trump a means of advancing their fringe designs with relative impunity.

Members of Congress: Trump’s GOP allies in the U.S. Senate and House of Representatives did not directly participate in the January 6 insurrection, but nevertheless issued public rhetoric and engaged in actions in their official capacity as members of Congress that helped inspire the false belief that the 2020 election had been stolen—and that with sufficient pressure on Congress on and before January 6, the election result might be overturned. Many individuals listed below attended pre-January 6 strategy sessions with the president and his top advisers, while other spoke at Stop the Steal events and (in a few rare instances) arguably directly incited violence with their irresponsible rhetoric.

Seth Abramson, shown above left and at right, is founder of Proof and is a former criminal defense attorney and criminal investigator who teaches digital journalism, seth abramson resized4 proof of collusionlegal advocacy, and cultural theory at the University of New Hampshire. A regular political and legal analyst on CNN and the BBC during the Trump presidency, he is a best-selling author who has published eight books and edited five anthologies.

Abramson is a graduate of Dartmouth College, Harvard Law School, the Iowa Writers' Workshop, and the Ph.D. program in English at University of Wisconsin-Madison. His books include a Trump trilogy: Proof of Corruption: Bribery, Impeachment, and Pandemic in the Age of Trump (2020); Proof of Conspiracy: How Trump's International Collusion Is Threatening American Democracy (2019); and Proof of Collusion: How Trump Betrayed America (2018).

washington post logoWashington Post, HP, Dow, Under Armour among nearly 200 companies speaking out against voting law changes in Texas, other states, Hannah Denham and Jena McGregor, April 3, 2021. After Georgia, voting rights activists call for corporate pushback against proposed voting bills in Texas and dozens of other states.

Nearly 200 companies on Friday joined in a strong statement against proposals that threaten to restrict voting access in dozens of states, in a further sign of corporate willingness to speak out on social justice issues.

As Major League Baseball announced that it will be moving this summer’s All-Star Game out of Atlanta in response to the passage of Georgia’s restrictive voting law, executives from at least 193 companies — including Dow, HP, Twitter and Estée Lauder — urged the protection of voting rights across the country.

Companies, facing new expectations, struggle with pressure to take stand on Georgia voting bill

“There are hundreds of bills threatening to make voting more difficult in dozens of states nationwide,” executives wrote in the statement, which also included signatures from the CEOs of Under Armour, Salesforce and ViacomCBS.

“We call on elected leaders in every state capitol and in Congress to work across the aisle and ensure that every eligible American has the freedom to easily cast their ballot and participate fully in our democracy,” the statement said.

The joint statement was organized by Civic Alliance, a nonpartisan group of businesses focused on voter engagement.

Following the deaths of George Floyd and Breonna Taylor and the summer’s protests against policing, companies made commitments to fight systemic racism, including within their own ranks.

Those pledges raised the bar for expectations among consumers and activists for corporate accountability, building pressure to speak up about public policy and its effect on communities.

After Georgia signed into law its Election Integrity Act, which critics say disproportionately affects voting access for people of color, corporations this week came under pressure to speak out before similar bills introduced in nearly every state are passed.

Most of the corporate criticism of the Georgia law came after it was passed, despite weeks of call-outs and demonstrations from activists leading up to Republican Gov. Brian Kemp’s signature on March 25.


March 2021 Update

March 30

ny times logoNew York Times, Opinion: Republicans Have an Ambitious Agenda for the Supreme Court, Ian Millhiser (commentator on the Supreme Court, the Constitution and the intersection of law and politics), March 30, 2021. Why the G.O.P. doesn’t need to try to pass mostly unpopular policies through the elected branches.

Not so long ago, Republicans had one of the most ambitious legislative agendas of any political party in modern American history.

paul ryan wDevised by the former House speaker, Paul Ryan, left, the so-called Ryan budget sought to reduce much of the nation’s social safety net to ashes. Congressional Republicans planned to slash Medicaid spending and food stamps. In the most aggressive version of Mr. Ryan’s proposal, Republicans would have replaced Medicare with “premium support” vouchers that could be used to buy private insurance, and then reduced the value of this subsidy every year — effectively eliminating traditional Medicare over time.

But all of that has changed. The Ryan budget is a relic. At their 2020 national convention, Republicans didn’t even bother to come up with a new platform.

republican elephant logoYet while the party appears to have no legislative agenda, it’s a mistake to conclude that it has no policy agenda. Because Republicans do: They have an extraordinarily ambitious agenda to roll back voting rights, to strip the government of much of its power to regulate, to give broad legal immunity to religious conservatives and to immunize many businesses from a wide range of laws.

It’s just that the Republican Party doesn’t plan to pass its agenda through either one of the elected branches. Its agenda lives in the judiciary — and especially in the Supreme Court.

From 2011, when Republicans gained control of the House of Representatives and denied President Barack Obama a governing majority, until the pandemic forced legislators’ hands in 2020, Congress enacted hardly any major legislation outside of the 2017 tax law.

In the same period, the Supreme Court dismantled much of America’s campaign finance law; severely weakened the Voting Rights Act; permitted states to opt out of the Affordable Care Act’s Medicaid expansion; expanded new “religious liberty” rights permitting some businesses that object to a law on religious grounds to diminish the rights of third parties; weakened laws shielding workers from sexual and racial harassment; expanded the right of employers to shunt workers with legal grievances into a privatized arbitration system; undercut public sector unions’ ability to raise funds; and halted Mr. Obama’s Clean Power Plan.

Now, a 6-to-3 conservative-majority Supreme Court is likely to reshape the country in the coming decade, exempting favored groups from their legal obligations, stripping the Biden administration of much of its lawful authority, and even placing a thumb on the scales of democracy itself.

Many of these changes would build on decisions handed down long before President Donald Trump reshaped the Supreme Court. The court, for example, first allowed employers to force workers to sign away their right to sue the company — locking those workers into a private-arbitration system that favors corporate parties — in a 2001 case, Circuit City v. Adams. But the court’s current majority is likely to make it much harder for workers and consumers to overcome these tactics. In Epic Systems v. Lewis (2018), Justice Neil Gorsuch wrote the court’s majority opinion favoring an employer that forced its employees to give up their right to sue.

March 26

ny times logoNew York Times, Analysis: Testing Time at the Supreme Court, Linda Greenhouse (shown at right on the cover of her memoir), March 26, 2021 (print ed.). The outcome of a property rights case could foretell linda greenhouse cover just a journalisthow much conservatives can expect from the justices.

The case that the Supreme Court heard this week about a California law granting union organizers access to private farms has been described as a labor case, which it marginally is. It has also been described as a case about property rights, which it definitely is. But what makes Cedar Point Nursery v. Hassid one of the most important cases of the current term is the question it presents for the newly configured court: whether, after years of disappointment, the political right may finally be able to take the Supreme Court for granted.

The case exemplifies a dynamic likely to become quite familiar in the coming months or years. In an ordinary lawsuit, the plaintiff might dream of winning big, but would be satisfied simply to win. By contrast, Cedar Point Nursery — or, more precisely, the Pacific Legal Foundation — is shooting for the moon. Its lawyer made clear in his argument on Monday that it expects to come away with nothing less.

The group is using Cedar Point, a strawberry grower, along with another employer that packs and ships grapes and citrus fruit, as stalking horses for its long-running project to elevate property rights.

In one remarkable exchange, the foundation’s lawyer, Joshua Thompson, rejected out of hand a potential path to victory offered by Justice Brett Kavanaugh.

As the lawyer kept resisting that proffered hand, Justice Kavanaugh said in evident frustration: “Just to be clear. I’m saying that you would prevail under Babcock. You don’t want to prevail under Babcock, though?”

March 23


austin mcguigan resized nick lacy

Photo by Hartford Advocate photographer Nick Lacy of Connecticut's Chief State's Attorney Austin McGuigan, portrayed as a courageous corruption-busting prosecutor in the 1987 book Spiked: How Chain Management Corrupted America's Newspaper by Andrew Kreig, now editor of the Justice Integrity Project.

Hartford Courant, Austin J. McGuigan, a fearless prosecutor of corrupt politicians and mobsters, dies after a long illness, Edmund H. Mahony, March 23, 2021.  State prosecutor Austin J. McGuigan led an anti-corruption push in the mid-1970s as an assistant and later head of the office of the chief state's attorney. McGuigan successfully prosecuted gangters involved in the state's jai alai gambling business and won numerous convictions in a municipal corruption case in New Britain.

But McGuigan attracted powerful critics who accused him of overreaching, and in 1985 the legislature changed the way the chief state's attorney was appointed and he was forced out. "I may take up admiralty law," he said at the time. "My ship just sunk."

State prosecutor Austin J. McGuigan led an anti-corruption push in the mid-1970s as an assistant and later head of the office of the chief state's attorney. McGuigan successfully prosecuted gangters involved in the state's jai alai gambling business and won numerous convictions in a municipal corruption case in New Britain. But McGuigan attracted powerful critics who accused him of overreaching, and in 1985 the legislature changed the way the chief state's attorney was appointed and he was forced out. "I may take up admiralty law," he said at the time. "My ship just sunk." (Michael Lennahan / Hartford Courant)

Austin J. McGuigan, who as a brash young prosecutor rocked the political status quo with a series of corruption investigations that frayed Connecticut’s reputation for Yankee propriety, died Tuesday after a long illness. He was 77.

McGuigan was appointed as Connecticut’s second Chief State’s Attorney and, through the late 1970s and early 1980s, took what had been created as a central office for a staid prosecutorial system and molded it to his crusading personality in a way that hasn’t been seen since.

In addition to young and brash, he was outspoken, ambitious and never shy of the attention generated by his string of sensational investigations and prosecutions never seen before in the state.

He convicted 30 in a government job selling conspiracy. He convicted the state transportation commissioner in a case that linked contract awards to donations to the then-entrenched Democratic Party. He developed evidence that mobsters, including Boston crime boss James “Whitey” Bulger, had penetrated the sport of jai alai. He charged — but a judge dismissed the allegation in a controversial ruling — that gangsters had paid to get the pari-mutuel gambling business legalized in Connecticut with bags of cash.
[Related] A new public defender program has ‘professionalized’ Connecticut’s parole process, exciting both advocates and prison officials »

What made McGuigan a fearless prosecutor made for powerful enemies, in politics and among his rivals in law enforcement. After focusing on questionable political fundraising — he revealed that prominent Democratic party figures raised illegal cash contributions during the 1980 Presidential primary — a special legislative commission decided there was a constitutional defect in the method by which he and his predecessor as chief state’s attorney had been appointed.

As a result, he was fired abruptly in 1985 after seven years in office. Nearly all his investigations were closed. And the office was restructured in way that has made it more difficult for police agencies and prosecutors to investigate sophisticated crime. Since then, no one in state law enforcement has come close to his record.

“I may take up admiralty law,” McGuigan told the Courant minutes after being sacked. “My ship just sunk.”

McGuigan, a Democrat, transitioned to a successful, if quieter private practice, eventually joining Republican heavyweight and unsuccessful 1982 gubernatorial candidate Lewis Rome in the downtown Hartford law firm Rome McGuigan. Among his clients were the United Technologies Corp., the Mohegan Sun casino and a variety of banks.

Even in private practice, McGuigan kept a hand in a case that had consumed him as a prosecutor. In 2007, he was part of a team of lawyers that won a $101.7 million judgment for four innocent Boston men who spent decades in prison after corrupt FBI agents, in a scheme to cultivate mob informants, permitted the fabrication of evidence that led to their wrongful convictions for a 1965 murder.

One of the agents found to be liable for the miscarriage of justice was implicated years later in the murder by Bulger and his gang of Roger Wheeler, the president of World Jai Alai, which operated pari-mutuel jai alai frontons in Hartford and Florida.

McGuigan died after a long struggle with Parkinson’s disease. He was diagnosed in 2013.

There are still some in law enforcement who suspect McGuigan’s removal from public office was retribution by politicians fed up by what seemed to be the premise beneath his investigations: The party that controlled government treated the award of public contracts as fundraising opportunities. If it was retribution, it didn’t work.

Federal law enforcement officials watched from the sidelines as McGuigan’s career unraveled. They became persuaded his ouster demonstrated that the state political class had little appetite for fighting graft.

“Not only did the state have no appetite for it,” a federal official said, “there was a fear that somehow, orders had come down from on high not to do it.”
[Related] Read the stories behind the photos on the Hartford Courant Instagram »

Federal prosecutors and agents, who had never aggressively pursued political crime in the state, filled the vacuum created by McGuigan’s removal. Working from the same “pay to play” premise, they compiled a conviction record of their own that included, to name a few, a governor, a state treasurer, three big city mayors, a state judge, bureaucrats, inspectors and dozens of their political colleagues, not to mention the bankers, financiers, fundraisers and construction executives and criminals who pay them off.

“That is Austin’s legacy,” said Kevin Kane, a top McGuigan assistant, who later became Chief State’s Attorney himself. “When we started, there was no history of doing these kinds of cases and we didn’t have the tools to do them. Austin had to look all the way back to the 1930s to find a political corruption case in the state. He figured out a way. And later, the feds took over.”

McGuigan grew up outside of Boston in Medford, Mass. His father suffered emotional trauma in the battle for Guadalcanal in World War II and left the family in 1949. McGuigan, then 6 years old, never saw him again.

McGuigan obtained an undergraduate degree from Merrimack College on a scholarship from the Diocese of Boston. After graduation, he enlisted in the U.S. Army during the Vietnam era and was assigned to military intelligence in Germany. Following the service, he graduated first in his class from the Boston University School of Law.

He arrived in Hartford as a law clerk for John B. Cotter, associate justice and later chief justice of the state Supreme Court.

When the state legislature created the new office of chief state’s attorney in the 1970s, McGuigan joined it. His first assignment was as an assistant prosecutor assigned to the state police organized crime investigative task force. Two years later, he was appointed Chief State’s Attorney.

As Chief, McGuigan worked with the state police, which, at the time, operated large squads of crack detectives assigned to investigate the growing, legalized gambling industry; political corruption; and traditional organized crime. McGuigan soon learned that prosecutors in Connecticut lacked — and still lack today — the legal tool essential to success against corruption and one used routinely by almost every other prosecutorial agency in the country: an efficient means of issuing subpoenas and compelling testimony of witnesses in criminal investigations.

McGuigan found he could compensate with a relic he dug out of the state’s legal past — something called an investigative, one-man grand jury. A judge appointed as the grand juror could immunize witnesses, compel them to testify and charge them with perjury for lying. McGuigan used the grand jury aggressively — critics said far too aggressively — opening 20 or so investigations into crimes running from conspiracies to fix jai alai matches to bid rigging.

McGuigan’s hold on his job began fraying at about the same time his relationship with the state police began to deteriorate. A disagreement over tactics in response to allegations that well-known Waterbury prosecutor Arthur McDonald was taking bribes was an early cause of friction. He and his police counterparts began sniping at one another in the newspapers. That became a public feud and a factor in his removal. The dispute ended up costing State Police Commander Lester Forst his job as well.

Some in law enforcement believe the McGuigan-Forst feud began even earlier, with his criticism of the agency for its interrogation and arrest of Peter Reilly for the 1973 murder of his mother in Canaan. Reilly was later cleared, with support from McGuigan and others, and the state police investigation was widely condemned. The relationship worsened over other disagreements. There was also suspicion within the state police that McGuigan would leverage the publicity around his work as a prosecutor to take control of high profile state police investigations.

Ed Mahony has covered Connecticut for more than three decades, mostly for the Hartford Courant. Over the last decade, he has covered some of the country’s biggest political and mob trials. He is the recipient of numerous journalistic awards, including the Pulitzer Prize and the George Polk award, which he has won twice.

March 22

washington post logoWashington Post, Opinion: Trump’s attacks on the press were bad. What this federal judge did was worse, Ruth Marcus, right, March 22, 2021 (print ed.). It’s ruth marcus twitter Customalarming enough when a president calls reporters the “enemy of the people.” It’s even more alarming when words to that effect come from one of the nation’s most prominent federal appeals court judges — and when he goes even further, calling New York Times v. Sullivan, the foundational ruling protecting press freedom, “a threat to American Democracy.”

That happened Friday when federal appeals court judge Laurence H. Silberman dissented in a defamation case decided by the D.C. Circuit. To understand the significance — and danger — of the Silberman dissent requires understanding Silberman’s place near the apex of the conservative legal pantheon.

At 85, named to the bench by President Ronald Reagan in 1985, he is one of the architects of the conservative legal movement, godfather to many of its current luminaries. So when Silberman speaks, conservative lawyers and judges listen.

On Friday, the notoriously volcanic Silberman — he once said he was tempted to punch a colleague in the nose — didn’t just talk, he thundered. The case, Tah v. Global Witness Publishing, involved two former Liberian officials who claimed they were defamed by a human rights group, Global Witness, that suggested they had accepted bribes in exchange for an oil development license. (The Washington Post joined an amicus brief on behalf of Global Witness.)

The two judges in the majority, David S. Tatel, a Clinton appointee, and Sri Srinivasan, named by President Barack Obama, dismissed the case, applying the “actual malice” test set out in Times v. Sullivan: Did Global Witness act with knowing or reckless disregard of the truth in reporting on public officials?

March 19

laurence silberman susan walsh ap resized

Judge Laurence Silberman, senior judge on the U.S. Court of Appeals for the District of Columbia Circuit, speaks at the memorial service for Supreme Court Justice Antonin Scalia on March 1, 2016, at the Mayflower Hotel in Washington, D.C. (Susan Walsh / AP Photo).

Politico, Analysis: Federal judge pens dissent slamming decades-old press protections, Josh Gerstein, March 19, 2021. D.C. Circuit Senior Judge Laurence Silberman’s diatribe amounted to an assault on a Supreme Court decision that set the framework for modern defamation law.

A federal appeals court judge issued an extraordinary opinion Friday attacking partisan bias in the news media, lamenting the treatment of conservatives in American society and calling for the Supreme Court to overturn a landmark legal precedent that protects news outlets from lawsuits over reports about public figures.

D.C. Circuit Senior Judge Laurence Silberman’s diatribe, contained in his dissent in a libel case, amounted to a withering, frontal assault on the 1964 Supreme Court decision that set the framework for modern defamation law — New York Times v. Sullivan.

Silberman said the decision, requiring public figures to show “actual malice” to recover against a news organization for libel, was a “policy-driven” result that the justices simply invented out of whole cloth.

“The holding has no relation to the text, history, or structure of the Constitution, and it baldly constitutionalized an area of law refined over centuries of common law adjudication,” the Ronald Reagan appointee wrote.

Silberman echoed and approvingly cited an opinion Justice Clarence Thomas issued two years ago, questioning the rationale of New York Times v. Sullivan and calling for the high court to revisit the decision. “Justice Thomas has already persuasively demonstrated that New York Times was a policy-driven decision masquerading as constitutional law,” the judge wrote.

But the exceptional aspect of Silberman’s opinion was not its legal arguments, but the protracted airing of the judge’s evidently deep-seated, pent-up grievances that conservatives are being oppressed by overwhelmingly liberal news media, academia and technology companies. That has created “a frighteningly orthodox media culture,” he wrote.

“The increased power of the press is so dangerous today because we are very close to one-party control of these institutions,” the judge declared. “Although the bias against the Republican Party—not just controversial individuals—is rather shocking today, this is not new; it is a long-term, secular trend going back at least to the ’70s….One-party control of the press and media is a threat to a viable democracy.”

Silberman slammed the New York Times and the Washington Post as “virtually Democratic Party broadsheets.” He added: “Nearly all television—network and cable—is a Democratic Party trumpet. Even the government-supported National Public Radio follows along.”

Silberman acknowledged the existence of conservative outlets such as Fox News, but warned of “serious efforts to muzzle” the network. He did not explain further.

Silberman also specifically decried Twitter’s decision prior to last fall’s election to ban links to a New York Post story relaying allegations about the contents of a computer that once belonged to Hunter Biden, the son of President Joe Biden. The judge cited that as an example of how Silicon Valley “filters news delivery in ways favorable to the Democratic Party.”

The judge also took sides in the ongoing public debate about the duties of social media companies, arguing that they are morally obligated to allow free expression and a diversity of views. Arguments that the platforms are private businesses and not legally obliged to follow First Amendment standards may be right, the judge said, but don’t absolve social media outlets from engaging in what he termed “censorship.”

“Repression of political speech by large institutions with market power…is—I say this advisedly—fundamentally un-American,” Silberman wrote. “As one who lived through the McCarthy era, it is hard to fathom how honorable men and women can support such actions.”

The vehicle for Silberman’s blistering judicial rant was a libel suit two former Liberian government officials filed against a human rights group, Global Witness, over a report the officials said implied they had taken bribes in connection with an oil contract.

The majority on the D.C. Circuit panel found the case fairly straightforward under existing precedents, concluding that Global Witness was protected by the “actual malice” standard because it had no persuasive indication that its report was false at the time it was published. The officials’ denials of wrongdoing were insufficient to suggest that the report was probably false, Judge David Tatel wrote in an opinion joined by Judge Sri Srinivasan.

Tatel recoiled at some of Silberman’s rhetoric, including his description of the majority’s legal conclusions as “obviously fallacious.”

Tatel also warned that arguments the Liberian officials put forward in the case had “breathtaking” implications and “would find support for an inference of actual malice in a wide swath of investigative journalism that turns out to be critical of its subject.”

Both judges in the majority are Democratic appointees. Tatel is an appointee of President Bill Clinton, while Srinivasan was appointed by President Barack Obama.

washington post logoWashington Post, A farmer’s feud with workers union leads to high-stakes Supreme Court showdown, Robert Barnes, March 19, 2021 (print ed.). A pending Supreme Court case that pits union rights against property rights began on a cold October morning in 2015 on a California strawberry plant farm near the Oregon border.

Mike Fahner, the third-generation owner of Cedar Point Nursery in Dorris, recalls a “frightening” scene: “We had strangers on bullhorns marching up and down through our buildings.” He cites a video of flag-waving union demonstrators he describes as an “invasion” and blames California’s law that gives organizers the right to access a grower’s property to make their case to farmworkers.

Union officials are blunt in response. “They’re absolutely lying about it being a trespass,” United Farm Workers of America (UFW) general counsel Mario Martínez said. “What they’re upset about is that their own workers went on strike. … The video they’ve circulated? Those are all Cedar Point workers. They’re not union organizers.”

The California Agricultural Labor Relations Board dismissed Cedar Point’s complaint, determining “the actions of the striking workers are not attributable to the UFW” organizers who were present, state officials told Cedar Point’s lawyer.

Fahner acknowledges he would be in the lawsuit no matter how polite or ill-mannered union organizers might be. “The right-to-access law, whether provided to unions or anybody to somebody’s personal private property, is wrong,” he said. “And it doesn’t exist anywhere else in the nation.”

March 16

brett kavanaugh flag

Palmer Report, Opinion: We told you Senate Democrats would make their move against Brett Kavanaugh, Bill Palmer, March 16, 2021. When Donald Trump and the Republicans installed deranged monster Brett Kavanaugh on the Supreme Court, it was one of the ugliest moments of the Trump era. But at the time, Palmer Report pointed out that if Trump lost reelection and we ended up with a legitimate Attorney General, the Senate Democrats would ask the DOJ to look into Kavanaugh’s criminal scandals.

Sure enough, Democratic Senator Sheldon Whitehouse sent a letter today to newly installed Attorney General Merrick Garland, asking him to investigate whether the FBI conducted a legitimate investigation into Brett Kavanaugh in 2018, or whether the FBI merely pretended to probe Kavanaugh. This is crucial, because we all watched it happen, and we already know that the answer is the latter.

bill palmer report logo headerThe mere act of having the DOJ reexamine the original Kavanaugh FBI probe should be enough to kick the door open for a proper investigation of Kavanaugh’s criminal antics. Even if the sexual assault and rape allegations against Kavanaugh can’t be legally proven at this late date, Senator Whitehouse is asking the DOJ to follow the money on how Kavanaugh’s massive personal debts suddenly and conveniently disappeared.

We continue to believe that whether Brett Kavanaugh can be nailed for any of these more serious scandals or not, it’ll ultimately be fairly easy to nail him for lying under oath to the Senate during his confirmation hearing. If the DOJ did end up indicting Kavanaugh for perjury, he might feel compelled to resign in exchange for the case being dropped.

That’s all still several steps down the road. But it’s now clear that Senate Democrats are going down the road that we always expected they would. This wasn’t a particularly difficult prediction to make. To put it another way: once a legitimate Attorney General was in place, why wouldn’t Senate Democrats go down this road?

March 15

Stephen Breyerny times logoNew York Times, Opinion: Justice Breyer Should Retire Right Now, Paul F. Campos (a law professor who writes extensively about politics and the Constitution), March 15, 2021. If he doesn’t, Democrats run the very real risk that they would be unable to replace him.

Justice Ruth Bader Ginsburg was widely, and deservedly, criticized for her refusal to retire from the Supreme Court at a time when a Democratic president could have chosen her replacement.

Justice Stephen Breyer is making a similar and arguably even more egregious mistake.

Consider that because of the extremely thin nature of their Democratic Senate control, the shift of a single seat from the Democrats to the Republicans or even one vacancy in the 50 seats now controlled by the Democratic caucus would probably result in the swift reinstallation of Mitch McConnell as the majority leader.

What are the odds that something like this — a senator’s death, disabling health crisis or departure from office for other reasons — will happen sometime in this Congress’s remaining 22 months?

Alarmingly for Democrats, if history is any guide, the odds are quite high. Since the end of World War II, 27 of the 38 Congresses have featured a change in the party composition of the Senate during a session.

All things considered, the odds that Democrats will lose control of the Senate in the next 22 months are probably close to a coin flip.

It is true that, under normal circumstances, a Supreme Court justice planning to retire generally waits until the end of a court term to do so. But these are not normal circumstances.

Nothing illustrates the anti-democratic dysfunction of our political system more clearly than the current makeup of the Supreme Court. Two-thirds of the sitting justices were nominated by Republican presidents, even though Republican presidential candidates have lost the popular vote in seven of the nine elections, which determined who nominated these justices.

And these justices were confirmed by a Senate that has become skewed so radically in favor of electing Republicans that the 50 senators who caucus with the Democrats represent about 41.5 million more Americans than the 50 Republican senators do.

Under the circumstances, it would be a travesty if the Supreme Court seat occupied by Justice Breyer was not filled by a replacement chosen by Democrats.

He should announce his retirement immediately, effective upon the confirmation of his successor.

March 10

ny times logoNew York Times, Merrick Garland Is Confirmed as Attorney General, Katie Benner, March 10, 2021. The federal judge will take over a Justice Department battered during the Trump administration and confronting the threat from domestic extremism.

The Senate voted to confirm Merrick B. Garland on Wednesday to serve as attorney general, giving the former prosecutor and widely respected federal judge the task of leading the Justice Department at a time when the nation faces domestic extremist threats and a reckoning over civil rights.

merrick garlandMr. Garland was confirmed 70-30 by senators, with 20 Republicans joining all 50 Democrats in supporting him. He is expected to be sworn in at the Justice Department on Thursday.

“Attorney General Garland will lead the Department of Justice with honesty and integrity,” Senator Richard J. Durbin, Democrat of Illinois and chairman of the Senate Judiciary Committee, said in a statement. “He has a big job ahead of him, but I can’t think of anyone I’d rather have in his place.”

Judge Garland has vowed to restore public faith in a department embroiled in political controversy under former President Donald J. Trump, who sought both to undermine federal law enforcement when it scrutinized him and his associates and to wield its power to Justice Department log circularbenefit him personally and politically.

At his confirmation hearing, Judge Garland, 68, said that becoming attorney general would “be the culmination of a career I have dedicated to ensuring that the laws of our country are fairly and faithfully enforced and the rights of all Americans are protected.”

Judge Garland has amassed decades of credentials in the law. He clerked for the Supreme Court Justice William J. Brennan Jr., worked for years as a federal prosecutor and led major investigations into the 1995 Oklahoma City bombing and others before being confirmed to the District of Columbia Court of Appeals in 1997.

 Former Trump 2016 Campaign CEO and White House advisor Steve Bannon after his arrest last August 21 on a fugitive Chinese billionaire's yacht, portrayed in the background.

Former Trump 2016 Campaign CEO and White House advisor Steve Bannon after his arrest last August 21 on a fugitive Chinese billionaire's yacht, portrayed in the background. Trump pardoned Bannon from the charges, which involved a massive fraud diverting to Bannon and his co-defendants funds donated by Trump supporters towards a phony scheme to build with private funds a "Wall" on the U.S.-Mexican border.

Wayne Madsen Report, Opinion: Trump, Bannon, Hong Kong, and the planned dismemberment of China, Wayne Madsen, left, March 10, 2021. Bannon, a cult, wayne madsen may 29 2015 cropped Smalland a troublesome Chinese billionaire exilee disrupt U.S. relations with China.

wayne madesen report logoThe Biden administration should take immediate steps to curb the anti-China activities of Donald Trump political strategist Steve Bannon and exiled Chinese fugitive billionaire Guo Wengui, a member of Trump's Mar-a-Lago Club [who] has been financing two media operations from U.S. soil aimed at overthrowing the government of China.


federico klein fbi poster

washington post logoWashington Post, Ex-State Department employee appointed by Trump ‘switched sides’ in joining Capitol mob, judge says, Rachel Weiner, March 10, 2021 (print ed.). Federico Klein (shown above circled in a federal wanted poster) will be detained until his trial on charges that he assaulted police on Jan. 6.

A former State Department staffer with a top-secret security clearance betrayed his oath of office when he joined the Capitol mob that attempted to subvert the electoral process on Jan. 6, a federal magistrate judge said Tuesday.

Quoting that oath, which requires federal workers and appointees to “defend the Constitution of the United States against all enemies, foreign and domestic,” Judge Zia M. Faruqui said that on Jan. 6, domestic enemies were striking “directly at the heart of our democracy” and Federico Klein “switched sides.”

Faruqui ordered Klein, 42, detained until his trial on charges of assaulting police, trespassing and obstructing Congress. Klein worked on Donald Trump’s 2016 presidential campaign and then served under him as a political appointee; he resigned the day before President Biden took office. He served in the Marine Reserves from 2004 to 2012, including a seven-month tour in Iraq. He has a top-secret security clearance that was renewed in 2019.

 Jan. 6 Pro-Trump Riot, Insurrection

U.S. Courts, Race, Crime 

The late George Floyd is shown at left and at right, dying under the knee of Minneapolis Police Officer Derek Chauvin.

The late George Floyd is shown at left and at right, dying under the knee of Minneapolis Police Officer Derek Chauvin.

washington post logoWashington Post, Analysis: At the heart of Derek Chauvin’s trial: What killed George Floyd? Lenny Bernstein and Holly Bailey, March 10, 2021 (print ed.). George Floyd was not in the best of health when he encountered police officer Derek Chauvin on a South Minneapolis street corner shortly after 8 p.m. on May 25.

At 46, Floyd had three severely narrowed coronary arteries, including one that was 90 percent blocked, autopsies show. His heart was slightly enlarged, probably the result of long-term high blood pressure.

Floyd was a smoker, and he had spent years using street drugs. On that evening, the autopsies reveal, Floyd had a large amount of fentanyl, a small amount of methamphetamine and THC — the active ingredient in marijuana — in his blood.

The video of Floyd gasping for breath and dying beneath Chauvin’s knee that evening ignited a social justice movement and nationwide demand for policing reform. But when Chauvin’s trial for his alleged role in Floyd’s death begins, much of the argument will center instead on the autopsy details, most specifically whether fentanyl and underlying health conditions — not the police officer’s actions — stopped Floyd’s heart and lungs.

George Floyd’s America: Examining systemic racism and racial injustice in the post-civil rights era

Seven experts in toxicology, cardiology and illegal drug use consulted by The Washington Post largely disagreed with that idea, most of them strenuously. All but one said the autopsy findings and other court documents, coupled with the well-known chain of events that evening, made death by a fentanyl overdose unlikely to impossible. (One expert, Craig Beavers, chair of the American College of Cardiology’s cardiovascular team section, said he did not have enough information about all the circumstances to form a final conclusion.)

“From my review of the video and the autopsy report, I see nothing that makes me think he died of an opioid overdose,” said Kavita Babu, chief opioid officer and chief of the Division of Medical Toxicology at UMass Memorial Health Care in Worcester, Mass. Instead, she and others said, the defense uses events out of order and medical findings out of context to deflect blame from Chauvin to Floyd.

Two autopsies — one by a county medical examiner and another by a private medical examiner hired by Floyd’s family — as well as a review by military experts conducted for the federal government, reached the conclusion that Floyd died of cardiopulmonary arrest as the officers subduing him compressed his neck and chest.

Andrew Baker — the medical examiner in Minnesota’s Hennepin County, who is expected to be a key witness in the trial — formally declared Floyd’s death a homicide in June, listing “cardiopulmonary arrest complicating law enforcement subdual, restraint, and neck compression” as the cause of death.

The report listed heart disease, fentanyl intoxication, recent methamphetamine use and Floyd’s bout with the coronavirus as other “significant conditions.” The analysis also found other health issues, including sickle cell trait.

Those findings have given Chauvin’s attorney, Eric J. Nelson, an opening to argue that Chauvin is not responsible for Floyd’s death. The trial could begin as soon as March 29.

March 8

lawcrime logoLaw&Crime, ‘Absolutely Savage’ Clinton-Appointed Circuit Judge Calls Out Trump-Appointed Colleague in Nearly Full-Page Footnote, Jerry Lambe, March 8, 2021. A pair of federal judges on Monday publicly aired their grievances when denying an Indiana prisoner’s appeal for compassionate release from prison over health risks posed to inmates by the COVID-19 pandemic.

Circuit Judge Karen Nelson Moore, an appointee of Bill Clinton, took to task her Sixth Circuit Court of Appeals colleague Circuit Judge Chad Readler, an appointee of Donald Trump, after Readler dismissed her use of infection rate statistics and death counts in her analysis in the case of Kwame Amin Mathews. Mathews is a federal inmate who six years ago “pleaded guilty to aiding and abetting the distribution of cocaine base,” was sentenced to 151 months in prison, and who now “suffers from multiple sclerosis.”

The opinion plays out somewhat like a dialogue, with Moore opening in the form of the court’s majority decision.

“By the end of 2020, one in every five persons incarcerated in the United States had tested positive for COVID-19,” Moore’s opinion began. “At least 275,000 imprisoned persons across the country have been infected; more than 1,700 have died. A court’s refusal to reduce an incarcerated person’s sentence could result in death.”

The statistics Moore cited were sourced from weekly databases kept by The Marshall Project and the Associated Press, which both derived the data from each federal prison agency and verified those figures with officials.

Readler, who agreed with Moore’s overall conclusion, penned a separate concurring opinion primarily aimed at criticizing the portion of Moore’s legal analysis that included data from non-government agencies.

“In reaching that conclusion, however, the lead opinion covers ground that is neither necessary to the outcome nor joined by another member of the panel, making it dicta, and seemingly misplaced dicta at that,” Readler wrote. “One example is the opinion’s introductory paragraph, which frames the appeal by invoking prison-related data collected by the Marshall Project. As neither that data nor the means for collecting it are part of the record in this case, and thus unmeasured by federal evidentiary standards, the data’s value is difficult to assess.”

Readler specifically took issue with The Marshall Project’s stated goal of bringing about prison reform.

“As commendable as that mission may be, without prior admission and examination by the district court, I would not accept the Project’s agenda-backed reporting as informing how we should apply the federal criminal statutes at issue,” he wrote. “And I most certainly would not take the Project’s narrative as a basis to conclude that our ‘refusal to reduce an incarcerated person’s sentence could result in death.’ That statement, of course, should not be confused with today’s holding, let alone a standard district courts are to apply in weighing requests for compassionate release.”

Moore responded to Readler with a nearly page-long footnote that attorneys and legal observers referred to as “absolutely savage.”

“In what can only be described as dicta about dicta, Judge Readler diminishes COVID-19’s rampage in our federal prisons and assails The Marshall Project’s integrity,” Moore wrote. “We should not treat lightly the experience of persons who are incarcerated in prisons that are plagued with a deadly virus; nor should we demean those who advocate for imprisoned persons. Many compassionate-release motions implicate complex issues of law and policy that merit our attention. Contemplation of these issues aids our future reviews of compassionate-release motions.”

She defended her use of statistics, saying that “providing context when context matters is not misplaced,” before listing examples of previous instances in which Readler had used outside sources to contextualize an aspect of his opinions, including one in which he used HHS data to “clarify that manufacturing methamphetamine is dangerous,” as Moore put it.

“No reader would confuse the first three sentences of this opinion’s introduction with today’s holding, just as no reader would conflate an opinion’s policy reasons—which are not necessary to the outcome—with any legal standard,” she wrote, citing to several additional Readler decisions. “Yes, this introduction cites two statistics that were not in the record of Mathews’s case. Luckily, The Marshall Project and The Associated Press’s reporting is of a higher pedigree than the extra-record sources that some”—namely, Readler—”embrace.”

Moore then listed several of the more questionable sources Readler had cited to in recent opinions, including a blog post that claimed “baseball may forever be America’s pastime,” and another in which he “paraphras[ed] a Grateful Dead song.”

All three judges ultimately denied the appeal, reasoning that the district court did not abuse its discretion in denying the request for compassionate release. Senior Judge John M. Rogers, a George W. Bush appointee, merely concurred in the result.

March 4

Law&Crime, 'It Is a Direct Challenge to Roe v. Wade': Arkansas Lawmakers Send Bill Banning All Elective Abortions to Governor’s Desk, Jerry Lambe, March 4, 2021. The state of Arkansas lawcrime logois one signature away from enacting the strictest anti-abortion law in the United States. Lawmakers in the state House of Representatives on Wednesday overwhelmingly voted to approve Senate Bill 6 (SB6), a measure that would ban all abortions except in cases of a medical emergency where the procedure is required to save the life of the mother.

The bill, which has already been approved by the Senate, passed the House by a vote of 76-19. It does not allow for any exceptions in cases of rape or incest.

Under current U.S. Supreme Court precedent, the anti-abortion law is patently unconstitutional, violating the holdings of both Roe v. Wade and Casey v. Planned Parenthood. It would immediately face vehement legal challenges—something Arkansas lawmakers are counting on in hopes that the high court’s new conservative majority will upend decades-old reproductive rights decisions.

“Arkansas is asking and pleading that the U.S. Supreme Court take a look at this and make a decision that once again allows the states to protect human life,” the bill’s sponsor, Republican Sen. Jason Rapert, said prior before the measure passed the state Senate late last month.

That sentiment was reiterated Wednesday by another co-sponsor of the bill, Rep. Mary Bentley.

wayne madesen report logo

Wayne Madsen Report, Opinion: Destroying a subversive terrorist organization -- the RepubliQan Party, Wayne Madsen (left, commentator, author of 18 books and former Navy intelligence officer), March wayne madsen may 29 2015 cropped Small4, 2021. Today, the Congress [House] stands adjourned due to a far-right terrorist threat. The elected representatives of the American people are unable to act on important pandemic and voting rights measures due to a Qanon-inspired threat to repeat the actions of January 6.

Due to crackpot theories spread by Qanon and other far-right groups, March 4 has been declared the date on which Donald Trump will be inaugurated for a second presidential term.

republican elephant logoThere is only one way to halt the perpetuation of threats on Congress and federal and state government. For the first time since the end of World War II, the German government has declared its main opposition political party, the Alternative for Germany (AfD) under legal surveillance for the party's promotion of neo-Nazi causes. Donald Trump political adviser Steve Bannon has a close relationship with AfD leader Jörg Meuthen.

Based on the RepubliQan Party now being no different than Qanon, neo-Nazi groups, and the Ku Klux Klan, the Biden administration should follow the example of Germany and place the Republican Party, its elected members, and the party leadership, including the Trump family, under court-authorized surveillance and asset freezes for constituting major threats to the U.S. Constitution and national security.


cy vance resized djt

washington post logoWashington Post, In Trump probe, Manhattan district attorney puts pressure on longtime chief financial officer, David A. Fahrenthold, Jonathan O'Connell, Shayna Jacobs and Tom Hamburger, March 4, 2021. The Manhattan district attorney is delving deeply into the personal and financial affairs of the chief financial officer for former president Donald Trump’s company, probing the extent of Allen Weisselberg’s loyalty to Trump and scrutinizing a Trump-owned apartment once occupied by Weisselberg’s son, according to people familiar with the investigation.

This questioning is now led by a former mob prosecutor, and one person familiar with the investigation said it is aimed at “flipping” Weisselberg — attempting to turn one of Trump’s longest-serving and most important aides into a witness against him.

Cyrus R. Vance Jr. (D) (shown above at right), Manhattan’s top prosecutor, has not formally accused anyone of wrongdoing, including Trump, Weisselberg or the latter’s family. But the focus on Weisselberg underscores the depth and ambition of Vance’s inquiry, a criminal investigation broader than any Trump’s company is known to have faced before.

Vance’s focus on Weisselberg has included questions related to two of his adult children, a tactic that could be an effort to increase pressure on the elder Weisselberg. One of Weisselberg’s sons also works for the Trump Organization, where he manages the company’s Central Park ice rinks. Another Weisselberg son works for a company that has extended loans to the Trump Organization.

Law&Crime, Justices Gorsuch and Breyer Just Took Turns Accusing Each Other of Judicial Activism in Immigration Decision, Elura Nanos, The Supreme Court handed down a 5-3 decision lawcrime logoThursday in Pereida v. Barr, a case addressing a legal issue that occurs at the messy intersection of federal immigration law and state criminal law. SCOTUS ruled against Clemente Pereida, who entered the United States without authorization 25 years ago.

Pereida is a father of three children (including one U.S. citizen and one DACA-recipient). The U.S. government wishes to deport Pereida, and has obtained an official removal order to do so. Under Immigration and Nationality Act (INA), Pereida is entitled to request that an immigration judge consider the hardship that his deportation would have on his child, who is a U.S. citizen. Judges have some discretionary power to halt removals, and Pereida seeks to make his case.

The INA, however, does not allow all subjects of removal orders to present hardship claims; to be eligible, the person must prove that they have not been convicted of any “crime involving moral turpitude.” The problem arises for Pereida and others similarly-situated: how do we know when someone has been convicted of a “crime involving moral turpitude” if their criminal records don’t specify the exact statutory basis for their conviction?

Pereida’s story is not particularly unique. He was allegedly caught attempting to use a fake Social Security card when applying for a job in Nebraska. He was prosecuted and convicted for attempting a misdemeanor called “criminal impersonation,” paid a $100 fine, and served no jail time. Problematically, though, the Nebraska statute involved actually covers four separate crimes (also including identity theft and carrying on a business or occupation without a license). The criminal records say nothing about which of the four offenses Pereida was convicted of attempting. Because some of the included crimes do involve deceit (and therefore, “moral turpitude) and others do not, it’s impossible to tell whether Pereida has satisfied the rule required to plead his removal hardship.

Pereida argues that the ambiguity means that he’s still eligible to plead his hardship. The Supreme Court, however, disagreed. The crux of the SCOTUS decision was that it is Pereida’s burden to prove he is qualified to raise a hardship argument, and any difficulties doing so are his problem.

Law&Crime, Breaking Away from Norms and Traditions, Justice Breyer Does Not ‘Respectfully’ Dissent Against Justice Barrett’s First Majority Opinion, Colin Kalmbacher, March 4, 2021. The lawcrime logoU.S. Supreme Court on Thursday ruled in favor of government secrecy by stopping an environmental nonprofit group from obtaining internal documents prepared by the Environmental Protection Agency (EPA). The case was the first heard by nascent Justice Amy Coney Barrett, right, and is also, coincidentally, her first majority opinion.

amy coney barrett headshot notre dame photoThe ultimate decision in the long-running case, which began as an anti-transparency effort under the Barack Obama administration, is also notable for two separate reasons that have to do with Supreme Court norms and traditions—or, rather, a divergence from them.

First, the opinion was not unanimous. Traditionally, a new justice authors their first majority opinion with the full backing from the court. Thursday’s 7-2 decision in favor of the government upends that unspoken agreement—perhaps auguring tense relations ahead.

Second, the dissent by Justice Stephen Breyer (which was joined by Justice Sonia Sotomayor), foregoes the staid closing salutation of “I respectfully dissent” in favor of the terse “I dissent,” which is decidedly a sign that the disagreement here is exceptionally sharp.

Stylized as U.S. Fish and Wildlife Service v. Sierra Club, the case concerns whether internal decision-making documents termed “draft opinions” by the EPA are or are not part of a formal process under the Endangered Species Act (ESA). If they are formal processes, then they must be made available to the public under the Freedom of Information Act (FOIA). If they are not part of a formal process, then it’s a matter of agency discretion as to whether or not such drafts can ever be accessed by the public.

The Obama administration—and then the Donald Trump administration—claimed that the documents were not formal processes because those opinions, the government claimed, were ultimately shelved. The Sierra Club and the American Civil Liberties Union (ACLU) argued the opposite. They claimed the documents were simply labeled drafts in order to keep them secret and noted that the documents were forwarded to multiple staff, separate agencies and that various real world actions were taken based on the analysis contained therein. The high court ruled in favor of the government.

The facts of the case concern rules governing the regulation of cooling water intake structures that are harmful to endangered marine animals. The Sierra Club sought information on the process leading up to the creation of the rule in question but was denied access by Obama’s EPA. The activists sued and won in both district and appellate court but the conservative majority—with a not atypical assist from Justice Elena Kagan—overturned those decisions.



Feb. 26

washington post logoWashington Post, Opinion: With voting rights already under attack, the Supreme Court could deal another big blow, Ruth Marcus, right, Feb. 26, 2021. In ruth marcus twitter CustomGeorgia, state legislators are debating new voting restrictions, including imposing additional ID requirements for absentee voting and eliminating early voting on Sundays, which just happens to be the time for “Souls to the Polls” turnout efforts in Black churches.

In short, in the face of record turnout in the 2020 elections, there are any number of initiatives underway that would make it more difficult to vote — and that would pose particular hurdles for voters of color. Meanwhile, and ominously, the Supreme Court is poised to take up a case that could neuter the remaining key provision of the Voting Rights Act that might be used to strike down these restrictions.

The Supreme Court eviscerated the Voting Rights Act in its 2013 ruling in Shelby County v. Holder. That 5-to-4 decision gutted a key provision, known as Section 5, which required certain states and localities with a history of discrimination to obtain approval from the Justice Department before changing voting procedures. In the aftermath of Shelby County, states raced to enact voter ID laws, purge voter rolls, curtail early voting and impose other restrictions.

The demise of Section 5 left voting rights advocates with one other part of the law, Section 2, which doesn’t prevent the changes from being made in advance but — at least in theory — prohibits voting practices that abridge minority voting rights.

dnc square logoOn Tuesday, in Brnovich v. Democratic National Committee, the Supreme Court will hear oral arguments about two voting restrictions from Arizona. The first is a state policy that requires the entire ballot to be thrown out if a vote is cast in the wrong precinct — even if the voter was legally entitled to cast some of the votes, say for federal or statewide office. The second is a law that makes it a crime for most third parties to collect and deliver ballots, a practice attacked by Republicans as “ballot harvesting,” and which they argue poses a risk of voter fraud.

The Democratic National Committee, which challenged both restrictions, contends that they have the effect of disenfranchising voters of color. Citing Arizona’s “long history of racial discrimination and its continuing effects,” the DNC argues that minority voters move more frequently and are twice as likely as White voters to have their ballots rejected because of voting in the wrong precinct.


John Durham, left, talks with Robert Devlin, the senior state appellate judge who used to be his strike force partner, at a celebration Friday in honor of Durham’s retirement. (PHOTO: U.S. Attorney’s office)

John Durham, left, talks with Robert Devlin, the senior state appellate judge who used to be his strike force partner, at a celebration Friday in honor of Durham’s retirement. (PHOTO: U.S. Attorney’s office)

Hartford Courant, U.S. Attorney John Durham resigns; led prosecution of mobsters, drug kingpins and corrupt politicians, Edmund H. Mahony, Feb. 26, 2021. ‘A hero in the law enforcement community.’ U.S Attorney John H. Durham, who built an extraordinary record over more than four decades as a Connecticut prosecutor, is leaving office this weekend, part of President Joe Biden’s plan to quickly replace top federal prosecutors around the country with his own appointees.

Durham, right, has played a leading role in some of the most compelling criminal and political cases in Connecticut and elsewhere in the country since the john durham Custom1970s and his departure has judges, lawyers and law enforcement officers of all stripes reflecting on his contributions to the state’s criminal justice system and his absence going forward.

“I’m biased,” said Robert Devlin, a senior state appellate judge and Durham’s partner 40 years ago on the federal justice department’s super-secret organized crime strike force. “But if you look at it objectively, how can you not say that John Durham is the most consequential federal prosecutor ever to come out of the District of Connecticut, maybe even broader than that. Look at the cases he made and pushed across the finish line. One after the other, huge and difficult and complicated cases.”

As a mob prosecutor, Durham, now 70, convicted the leadership of the Patriarca crime family, then New England’s most powerful criminal outfit, riveting mob watchers across the country by playing for a Hartford jury — the first time anywhere, ever in public — a recording of notorious gangsters munching on prosciutto while new inductees burned images of the crime family’s patron saint during the mafia’s secret initiation ceremony.

He was an architect of the federal law enforcement strategy — still in use — that made Connecticut a national leader in reducing the drug violence that had left bodies in the streets of cities in Connecticut and elsewhere in the 1990s. He supervised the convictions of a long line of corrupt politicians — among them, a pedophile mayor, a state treasurer and a governor - twice.

And he was assigned by successive U.S. attorneys general of both parties to whitey bulger US Marshals Service Mug1investigate gangster James “Whitey” Bulger’s hold on law enforcement in Boston, the CIA’s post-911 interrogation tactics and the origins of the Trump-Russia collusion allegations — a matter in which he remains involved.

Bulger is shown at left in a mug shot and below right in 1953 mug shots earlier in his career as a Boston-based murderer, racketeer and mob leader.

“He is a hero in the law enforcement community in Connecticut and across the country,” said Christopher Droney, who worked with Durham when Droney was U.S. attorney in the 1990s and who later reviewed Durham’s work, first as a U.S. District Court judge and whitey bulger mugs 1953later on a federal appeals court. “He has taken on nearly impossible tasks and has done a terrific job with all of them. I am just very thankful that I had a chance to work with John and learn from him.”

Durham was nominated by President Donald J. Trump to be U.S. attorney, the state’s top federal law enforcement officer, in November 2017 and was confirmed and sworn in in February 2018. He is the first assistant U.S. attorney from Connecticut to become the state’s presidentially-appointed top federal prosecutor.

Within weeks, then-U.S. Attorney General William Barr asked Durham to put together a team and move to the nation’s Capitol to look for criminality in decisions by the FBI to eaves drop on Trump 2016 campaign aides and investigate since-discredited allegations of a connection between the campaign and Russian election meddling. In October, with the 2020 election approaching, Barr quietly appointed Durham as a special counsel, something Barr said would allow Durham to complete his work “without regard to the outcome of the election.”

Two weeks ago, Biden asked for resignations from all the nation’s U.S. attorneys, but allowed Durham to continue the collusion probe and David C. Weiss, U.S. attorney in Delaware, to continue a tax investigation of Biden’s son Hunter. Durham has been asked to leave his office by Feb. 28 and will be replaced as U.S. attorney on an interim basis by his chief deputy, longtime state and federal prosecutor Leonard C Boyle.

Associates said Durham made an emotional farewell to his staff in a video conference Friday, between calls from well-wishers. Later in the day, he stepped out of his office on the New Haven Green to acknowledge 300 or so masked and socially distanced judges, prosecutors and law enforcement officers who gathered in the windy courtyard behind the federal district courthouse for what amounted to a pandemic retirement send-off. He said he has been inspired by their public service, but much of the rest of his remarks were lost to his mask and the wind.

Durham began his career in 1977, prosecuting career criminals as an assistant to legendary New Haven State’s Attorney Arnold Markle, after graduating from the University of Connecticut School of Law and two years as a VISTA volunteer on the Crow Indian reservation in Montana.

He and Devlin partnered as the Connecticut office of the federal justice department’s organized crime strike force in 1977, prosecuting a pair of notorious Bridgeport gangsters, brothers Gus and Francis “Fat Franny” Curcio. The Curcio case was a battle that reached the U.S. Supreme Court. But it was a sideshow compared to the Patriarca mob case that unfolded in Hartford in the late 1980s.

Durham’s contribution to combating the drug violence that continues to plague Hartford, Bridgeport and New Haven was to federalize investigations. For years, drug offenses were state crimes. Local and state police agencies would make arrests for sale or possession, and suspects were quickly bailed out of detention and back in business on the streets. Upon conviction, drug dealers regularly were given relatively short sentences in state jails and prisons, from which they were able to continue to direct their businesses.

The new approach established federally-deputized, multi-agency task forces that were able to work with the federal law enforcement tools the state legislature — then and now — will not authorize for state and local police agencies. Those tools include efficient means of using subpoenas, wiretaps and other investigative weapons created to penetrate sophisticated criminal conspiracies. Federal defendants also can be denied bail as threats to public safety. And upon conviction, they face relatively severe sentences in out-of-state prisons under federal racketeering laws.

When then U.S. Attorney General Janet Reno sent Durham to Boston in 1998 a the head of the Justice Task Force to investigate law enforcement corruption, he walked into a hot war between the FBI on one hand and the Massachusetts State Police and U.S. Drug Enforcement Administration on the other. The state police and drug agents were convinced that someone in the FBI was tipping gangsters James “Whitey” Bulger and Stephen “The Rifleman” Flemmi to their investigations.

They were right.

The state police and drug agents figured Durham had been sent by Washington to white wash the FBI. And the FBI resisted Durham to minimize damage to its institutional reputation.

The Courant had, at the time, obtained secret FBI memos suggesting Bulger, Flemmi and their Winter Hill Gang were involved in a murderous conspiracy to take over World Jai Alai, a pari-mutuel gambling business that operated venues in Florida and Connecticut. One memo raised questions about FBI involvement in the murder of Roger Wheeler, the Oklahoma tycoon who owned World Jai Alai.

Durham, with a team including colleagues from Connecticut, made cases against supervisory FBI agent John Connolly and Massachusetts state police Lieutenant Richard Schneiderhan. Durham tried and convicted Connolly in Boston of racketeering, bribery and other charges on evidence that portrayed him as a closet member of the Bulger gang. Witnesses tied Connolly to the jai alai murders - although he wasn’t convicted in Wheeler’s death until later.

Ed Mahony has covered Connecticut for more than three decades, mostly for the Hartford Courant. Over the last decade, he has covered some of the country’s biggest political and mob trials. He is the recipient of numerous journalistic awards, including the Pulitzer Prize and the George Polk award, which he has won twice.

Feb. 22

  supreme court Custom

djt resized joe biden

washington post logoWashington Post, Supreme Court refuses to hear GOP challenge in light of Trump’s election loss in Pennsylvania, Robert Barnes, Feb. 22, 2021. The Supreme Court on Monday turned away Republican challenges to the presidential elections results in Pennsylvania, refusing to take up a months-long dispute over extending the deadline in that state for receiving mail-in ballots.

pennsylvania map major citiesIt was part of a purge of sorts. The high court formally dismissed a range of suits filed by Donald Trump and his allies in Pennsylvania, Wisconsin, Michigan, Georgia and Arizona — all states won by Democrat Joe Biden. The court’s intent in most of those had been signaled when Democratic-Republican Campaign logosit refused to expedite consideration of them before Biden was inaugurated as president.

The case about deadlines for receiving mail-in ballots was different, though. Three justices — Clarence Thomas, Samuel A. Alito Jr. and Neil M. Gorsuch — said it deserved the court’s attention, even though the number of votes at issue would not call into question Biden’s victory.

“A decision in these cases would not have any implications regarding the 2020 election,” Alito wrote. “But a decision would provide invaluable wisconsin map with largest cities Customguidance for future elections.”

It takes the votes of four justices to accept a case for review. Although changing election rules because of the pandemic has been a theme of Republican challenges in the wake of Trump’s defeat, the rest of the conservative majority was silent.

Neither Chief Justice John G. Roberts Jr. nor two of the three justices nominated by Trump signed on to dissents from Thomas and Alito. Besides Gorsuch, Trump chose Justices Brett M. Kavanaugh and Amy Coney Barrett.

The issue is whether state courts or other officials have the right to change voting procedures set by the legislature where federal elections are at stake. In extending the right to a mail-in ballot to all voters, Pennsylvania’s Republican-controlled legislature said the ballots must be received by 8 p.m. on election day to be counted.

But the state’s Democrats challenged that. Citing the pandemic and concerns about the Postal Service’s ability to deliver mail on time, the Pennsylvania Supreme Court extended the receipt deadline until three days after the election. It cited a provision in the state constitution promising fair elections.

In a pre-election challenge, the Supreme Court was deadlocked, meaning the extension applied. In the end, it affected fewer than 10,000 votes, and Biden won by about 80,000.

But the question of who decides voting procedures has become an important one for Republicans, who control more of the state’s legislatures.

Thomas, Alito, Gorsuch and Kavanaugh all endorsed a view that the Constitution’s command that the “legislature” design the rules of elections means that state courts and agencies do not have a free hand in making changes to state laws. They say federal courts have a role in overseeing the state court decisions.

washington post logoWashington Post, Supreme Court again rejects Trump’s bid to shield tax returns, other records from Manhattan prosecutor, Robert Barnes, Feb. 22, 2021. The Supreme Court on Monday rejected former president Donald Trump’s last-chance effort to keep his private financial records from the Manhattan district attorney, ending a long and drawn-out legal battle.

After a four-month delay, the court denied Trump’s motion in a one-sentence order with no recorded dissents.

District Attorney Cyrus R. Vance Jr. has won every stage of the legal fight — including the first round at the Supreme Court — but has yet to receive the records he says are necessary for a grand jury investigation into whether the president’s companies violated state law.

irs logoVance responded to the court decision with a three-word tweet: “The work continues.”

The current fight is a follow-up to last summer’s decision by the high court that the president is not immune from a criminal investigation while he holds office.

“No citizen, not even the president, is categorically above the common duty to produce evidence when called upon in a criminal proceeding,” Chief Justice John G. Roberts Jr. wrote for the majority in that 7 to 2 decision.

But the justices said Trump could challenge the specific subpoena, as every citizen may, for being overbroad or issued in bad faith.

Supreme Court says Manhattan prosecutor may pursue Trump’s financial records, denies Congress access for now

A district judge and a panel of the U.S. Court of Appeals for the 2nd Circuit in New York found neither was the case.

Trump’s complaints “amount to generic objections that the subpoena is wide-ranging in nature,” the unanimous 2nd Circuit panel wrote. “Again, even if the subpoena is broad, the complaint does not adequately allege that it is overbroad. Complex financial and corporate investigations are broad by default.”

Similarly, the panel said, “we hold that none of the president’s allegations, taken together or separately, are sufficient to raise a plausible inference that the subpoena was issued out of malice or an intent to harass.”

Vance is seeking eight years of the former president’s tax returns and related documents as part of his investigation into alleged hush-money payments made ahead of the 2016 election to two women who said they had affairs with Trump years before. Trump denies the claims.

Investigators want to determine whether efforts were made to conceal the payments on tax documents by labeling them as legal expenses.

But Vance says there are other aspects of the investigation that have not been publicly disclosed. Court filings by the prosecutors suggest the investigation is looking into other allegations of impropriety, perhaps involving tax and insurance fraud.

ny times logoNew York Times, The President’s Taxes: Long-Concealed Records Show Trump’s Chronic Losses and Years of Tax Avoidance, Russ Buettner, Susanne Craig and Mike McIntire, Sept. 27, 2020. The Times obtained Donald Trump’s tax information extending over more than two decades, revealing struggling properties, vast write-offs, an audit battle and hundreds of millions in debt coming due.

ny times logoNew York Times, How Democrats Are Already Maneuvering to Shape Biden’s First Supreme Court Pick, Jonathan Martin, Feb. 22, 2021 (print ed.). Party leaders are urging President Biden not only to consider racial diversity in potential Supreme Court nominees, but to look at candidates who don’t come from a traditional Ivy League background.

After meeting in the Oval Office earlier this month with President Biden, Vice President Kamala Harris and his fellow senior House Democrats, Representative James E. Clyburn of South Carolina made a beeline to Ms. Harris’s office in the West Wing to privately raise a topic that did not come up during their group discussion: the Supreme Court.

james clyburnMr. Clyburn, left, the highest-ranking African-American in Congress, wanted to offer Ms. Harris the name of a potential future justice, according to a Democrat briefed on their conversation. District Court Judge J. Michelle Childs would fulfill Mr. Biden’s pledge to appoint the first Black woman to the Supreme Court — and, Mr. Clyburn noted, she also happened to hail from South Carolina, a state with political meaning for the president.

There may not be a vacancy on the high court at the moment, but Mr. Clyburn and other lawmakers are already maneuvering to champion candidates and a new approach for a nomination that might come as soon as this summer, when some Democrats hope Justice Stephen Breyer, who is 82, will retire. With Democrats holding the narrowest of Senate majorities, and Ruth Bader Ginsburg’s death still painfully fresh in their minds, these party leaders want to shape Mr. Biden’s appointment, including moving the party away from the usual Ivy League résumés.

democratic donkey logoThe early jockeying illustrates how eager Democratic officials are to leave their mark on Mr. Biden’s effort to elevate historically underrepresented contenders for a landmark Supreme Court nomination. But it also casts a spotlight on discomfiting issues of class and credentialism in the Democratic Party that have been just below the surface since the days of the Obama administration.

Some Democrats like Mr. Clyburn, who have nervously watched Republicans try to repackage themselves as a working-class party, believe that Mr. Biden could send a message about his determination to keep Democrats true to their blue-collar roots by choosing a candidate like Ms. Childs, who attended public universities.


Feb. 14

Proof via Substack, Investigative Commentary: Some Say the Criminal Justice System Will Save Us From Trump — But Can It? Seth Abramson, left, Feb. 14, 2021. The "New Big Lie" is a bait-and-switch involving the indictment of Donald Trump.
seth abramson headshot

Having spent nearly a decade working in state and federal criminal justice systems — including as a criminal investigator in the federal justice system in D.C. and a criminal defense attorney in Massachusetts and New Hampshire — I have as many opinions as everyone else about what our justice system is equipped to handle and what it is not.

Right now we have many D.C. politicians, particularly powerful Republicans like Sens. Mitch McConnell (R-KY) and Marco Rubio (R-FL), telling us the appropriate forum for disqualifying a politician from future office is the federal criminal justice system. They sagely aver that if we will just accept that the proper jurisdiction for litigating a President of the United States inciting armed insurrection against the government in the waning days of his administration is the federal courthouse in D.C. — not, say, the chambers of Congress—all will be well. America will be rid of the scourge of Trump.

Except, per usual, they’re lying. But this lie is far more pernicious than many realize.

seth abramson proof logoFirst, understand while our justice systems can indict, prosecute, and incarcerate citizens for countless statutory crimes, they struggle to do so in a timely fashion — sometimes at all — if a defendant is rich, particularly if he’s also powerful and famous. There are many reasons for this, perhaps foremost among them that prosecutors in the United States are not apolitical. In fact, for reasons passing understanding, we created state and federal justice systems in which the most politically oriented prosecutors flourish — those who avoid pushing cases that are or may become politically unpopular, corner a defendant with powerful allies, or lead to a precedent that disadvantages the already advantaged.

Donald Trump is almost the Platonic case of a prospective federal defendant who, if disposed of in the same way any of the rest of us would be, could destroy not just the professional futures but also the personal lives of anyone who takes him on. Why should an ambitious prosecutor hoping to leverage that career track into some future political office take the risk of becoming a pariah to about half of the voters they may ultimately need to rely upon? Why risk losing a high-profile case someone above you in the hierarchy believes should have been won, and therefore losing your job rather than being vaulted even higher into the ranks of high-visibility public servants? And why do any of this when the very scions of public service you most wish to impress — the folks who work in D.C. and, in that group, particularly those in the White House — have already publicly decided not to pursue any action against Donald Trump, even a slam-dunk campaign finance case in which he remains an unindicted co-conspirator?

Second, the simple fact is that our criminal justice systems have no authority at all to bar someone from future office. Their only option, instead, is to incarcerate people for such a long period of time that they will die before they can run for office again. Is this what McConnell and Rubio would have us think they believe may happen here? That Trump — a seventy-something with no prior record; enough money to delay any case almost indefinitely through frivolous legal action (and a track record of always doing so successfully); at least 74 million supporters who wanted him to be the most powerful man in America not 120 days ago, many of whom (more than half) think he’s currently America’s rightful president; and access to legions of domestic terrorists likely to threaten and perhaps harm any prosecutor who juror who takes any adverse action against him—is going to be not just indicted and prosecuted and caged but for so long his political career will be effectively over? At a moment his popularity within the Republican Party remains well over 70%?

It won’t happen. It would be a miracle surpassing human understanding — and defying hundreds of years of history within the federal justice system—if, in prospective cases in Washington and Georgia, Trump were to be charged at all, let alone successfully prosecuted and then imprisoned. America has no track record of incarcerating a man of Trump’s notoriety, stature, and authority, let alone in a way that incapacitates him for a long period of time. Even the friends of men as powerful as Trump — think Roger Stone, Paul Manafort, or Steve Bannon — consider themselves immune from any long-term consequences for their actions; history has proven their presumption to be correct.

Donald Trump has recourses no other federal defendant would have, for instance to convincingly claiming that any prosecution of him is “political,” or having legions of powerful Republicans with ready access to the media saying as much at all hours of the day; he has civilian supporters he can effortlessly marshal to so intimidate any federal prosecutors, investigators, law enforcement officials, judges, or juries pursuing him as to make successfully convicting him (let alone caging him) so distant a possibility that only the most devout left-wing wish-casters can fathom it. Do I wish it were otherwise? Have I argued daily for years that it should be otherwise? Did I and millions of others work in the justice system at various points in our lives in part as an effort to ensure that all defendants are treated fairly, no matter their resources? Yes, yes, and again yes. Which is why I can report that anyone in D.C. now claiming that Trump will be dealt with properly by our legal system is lying to you. Our system isn’t equipped to do it.

Third, we must understand that the only reason men like McConnell and Rubio are pointing toward federal courts in D.C. and Georgia, or the state courts in New York, as the appropriate venues for disposing of Trump post-impeachment, is because they want to (a) distract us, (b) move the goalposts of accountability, (c) remove themselves from responsibility for whatever happens.

Per the Constitution, the body with the power to disqualify an elected official from holding future office is Congress — not the federal courts. We find this power enshrined, in both of its two instances frustratingly vaguely, in both the Impeachment Clause and Section 3 of the 14th Amendment of the U.S. Constitution. In the former case, the disqualification vote requires only a majority of members of Congress, but it remains unclear whether this vote can be taken, during an impeachment proceeding, whether or not the respondent in such a proceeding is convicted. While the issue hasn’t been litigated in the past, to date both Democrats and Republicans have seemed to presume that you can’t be disqualified from future office until you’ve been convicted of having committed malfeasance in your present (or recent) office. It’s an argument that doesn’t explain why the vote threshold required is different in the two instances, or for that matter why senators are allowed to use whatever standard of proof they wish in either of the two inquiries.

Even though we know the Constitution is silent on the standard of proof in an impeachment proceeding, politicians have — perhaps to better protect themselves—decided a senator can’t deem the bar for conviction to be higher than the bar for disqualification from future office.

Seth Abramson, shown above and at right, is founder of Proof and is a former criminal defense attorney and criminal investigator who teaches digital journalism, seth abramson resized4 proof of collusionlegal advocacy, and cultural theory at the University of New Hampshire. A regular political and legal analyst on CNN and the BBC during the Trump presidency, he is a best-selling author who has published eight books and edited five anthologies.

Abramson is a graduate of Dartmouth College, Harvard Law School, the Iowa Writers' Workshop, and the Ph.D. program in English at University of Wisconsin-Madison. His books include a Trump trilogy: Proof of Corruption: Bribery, Impeachment, and Pandemic in the Age of Trump (2020); Proof of Conspiracy: How Trump's International Collusion Is Threatening American Democracy (2019); and Proof of Collusion: How Trump Betrayed America (2018).

Denver Post, Investigation: Judicial discipline largely handled in “darkness” in Colorado, with most states offering greater transparency, Noelle Phillips, Feb. 14, 2021. Confidentiality in judicial discipline proceedings is embedded in Colorado’s Constitution.

The three-minute video posted on the Florida Supreme Court’s website shows the moment a judge, dressed in her black robes, put her hands on the shoulders of a courthouse employee and briefly shook him.

The video, along with 62 documents that outline the judicial misconduct case against Circuit Judge Vegina T. Hawkins, became public record in July 2019 once the Florida Judicial Qualifications Commission began formal disciplinary proceedings against the judge. Hawkins lost her re-election bid in 2020, and the disciplinary case was dismissed. But as the case wound through the state’s formal disciplinary process, the public could follow along.

Florida is one of 26 states where confidentiality for a judge accused of misconduct ends once formal charges are filed by a disciplinary commission. Other states with similar practices include California, Kansas and Washington. Another seven states make the cases public once the accused has a chance to respond to the allegations, and two more states allow the public to watch hearings but don’t reveal any details until then, according to the Center for Judicial Discipline at the National Center for State Courts.

But Colorado is one of 15 states where disciplinary cases against judges are secret until a recommendation for a public punishment is ordered. In most cases, however, Colorado judges are disciplined through informal proceedings that end with a private disciplinary decision.

“There’s no other state that is as dark as Colorado,” said Chris Forsyth, executive director of The Judicial Integrity Project, which pushes for judicial disciplinary reform in Colorado.

The state’s judicial disciplinary proceedings came under scrutiny last week after the Colorado Supreme Court released a previously secret memo that cited multiple examples of sexual misconduct and harassment by judges, allegations that reached the highest levels of the Colorado Judicial Department. The memo was released after a series of articles in The Denver Post about allegations a former human resources administrator threatened to tell everything she knew in exchange for a $2.5 million contract. The contract has been dissolved.

In Colorado, complaints against judges remain confidential until the Colorado Commission on Judicial Discipline recommends public discipline. Twelve other states have similar laws, including New Mexico, Utah and Wyoming. Only three states — Delaware, Hawaii and North Carolina — keep discipline a secret until a court orders it to become public, according to the National Center for State Courts Center for Judicial Discipline.

Forsyth has pushed for years for change, saying judges are public servants, and their misdeeds deserve public scrutiny.

“There’s no other reason for this darkness other than to undermine the trust and confidence of judges in Colorado,” he said.

Transparency varies from state to state. Some commissions such as Florida’s post documents as cases move through proceedings, some issue news releases about decisions and some issue orders along with board member’s opinions on why they determined discipline was warranted. Nowhere in the United States can the public see a list of formal complaints against judges, said Cynthia Gray, director of the Center for Judicial Ethics at the National Center for State Courts.

“That would be true in every state,” Gray said. “You just can’t go in and look at them.”

But many states offer more information to the public than in Colorado.

In Arkansas, for example, the Judicial Discipline and Disability Commission published a news release in May announcing a judge had resigned and was barred from serving again after he was caught receiving sexual photographs — and asking for more — from a woman facing charges in his courtroom. In Colorado, if a judge resigned before a disciplinary decision, it’s likely the allegation never would become public.

In Minnesota, a judge in March was publicly reprimanded for failing to appropriately supervise a law clerk, approving inaccurate time cards and sending inappropriate email messages about attorneys arguing in her courtroom. Judicial reprimands in Colorado remain confidential.

The Colorado Supreme Court memo released last week listed specific examples of judicial misconduct, but it’s impossible to know if disciplinary action was instigated or whether anyone was at least reprimanded or censured.

A few of the instances discussed in the memo include:

  • A judge sent a pornographic email over judicial email and still was promoted to a chief judge position
  • A law clerk was given a release agreement to protect a court of appeals judge from harassment accusations during the Supreme Court selection process
  • Another judge took off his shirt and rubbed his chest hair on a female employee and no action was taken.

None of those instances are available for review on the Colorado Commission on Judicial Discipline’s website. That could mean those judges were considered for discipline and none was given. Or they were privately admonished, reprimanded or censured. Or the commission may never have received those cases for review.

William Campbell, executive director of the Colorado Commission on Judicial Discipline, said it would “verge on breaching confidentiality” if he confirmed whether any of those incidents came before the commission. However, in a Friday news release, the commission said it had “reviewed its records spanning the last five years and has not been able to identify a referral from the State Court Administrator’s Office or the Office of the Chief Justice that appears to match the limited details reported publicly.”

The commission only investigates the cases it knows about and if no one complains to the commission, no case is considered. And no changes in law can fix a culture where formal complaints of misbehavior are not made.

Feb. 9

capitol weare the storm flyer resized

Sample promo, entitled #WeAreTheStorm, for the pro-Trump riots that killed five on Jan. 6 in the effort to halt the U.S. presidential election certification.

washington post logoWashington Post, Trump’s impeachment trial will tackle constitutional questions, Ann E. Marimow and Tom Hamburger, Feb. 9, 2021.  His attorneys’ arguments in the trial beginning today are expected to revolve around a First Amendment defense of his fiery speech before the violent Jan. 6 attack on the Capitol and a challenge to the legality of putting a former president on trial.

The arguments by opposing lawyers in the Senate impeachment trial of former president Donald Trump this week are expected to revolve largely around a pair of constitutional questions: A First Amendment defense of his fiery speech ahead of the violent Jan. 6 attack on the Capitol and a challenge to the legality of putting a former president on trial.

Trump is the first president in U.S. history to be impeached twice, and the only one to be tried in the Senate after leaving office. While an impeachment proceeding is distinct from a typical criminal trial, with a different set of rules, Trump’s case will feature broad legal questions about whether his actions violate the Constitution.

Most legal scholars who have studied the issue think post-presidential impeachment and conviction are allowed based on history and past practice in Congress. “The overwhelming scholarly consensus supports this argument,” said Steve Vladeck, a constitutional law professor at the University of Texas School of Law.

A prominent conservative lawyer added political and legal heft to the Democrats’ argument that Trump can be tried in the Senate even after he has left office. The assertion from Republican lawyer Charles J. Cooper in a Wall Street Journal opinion piece published Sunday undercuts the central argument embraced by most GOP lawmakers that it is unconstitutional to convene the Senate trial because Trump is no longer president.

Proof via Substack, Investigative Analysis: A Comprehensive Analysis of Trump's January 6 "Incitement to Insurrection" Speech: Part III, Seth Abramson, Feb. 8, 2021. This breakdown of one of the most dangerous presidential addresses in American history confirms the need for a Senate conviction and rigorous criminal investigation.

washington post logoWashington Post, Editorial: The Senate must convict Donald Trump, Editorial Board, Feb. 9, 2021 (print ed.). The Senate will begin considering Tuesday whether to convict Donald Trump following the House’s unprecedented second impeachment of the former president. Mr. Trump’s lawyers, as well as many Republicans, deny that the proceedings are legitimate. They are wrong. The Senate must hold its trial, and the right vote is for conviction.

The House was able to impeach Mr. Trump quickly in the final days of his presidency because he betrayed the nation on live television. The House impeachment managers’ brief is damning, even though it reveals little that was not already in the public record.

After Mr. Trump lost the Nov. 3 presidential election, he conducted a persistent campaign of lies alleging that Joe Biden’s victory was fraudulent. His campaign escalated after he failed in court; he suggested Senate Republicans should “fight to the death.” He asked supporters to descend on Washington on Jan. 6, the day Congress was to count electoral votes. Some of those supporters responded by planning to attack the Capitol.

On the morning of Jan. 6, Mr. Trump instructed the crowd to go to the Capitol and warned, “If you don’t fight like hell, you’re not going to have a country anymore.” Supporters screamed, “Take the Capitol right now!” That is what they did after Mr. Trump stopped speaking. Mr. Trump watched as a mob chanting, “Hang Mike Pence” stormed the building, resulting in multiple deaths, the interruption of the electoral vote counting and the desecration of the nation’s seat of government. Some in the mob reported that they were following Mr. Trump’s directions. Mr. Trump eventually issued meek statements designed as much to justify the mob’s rage as to pacify it.

Mr. Trump’s lawyers claim that the former president was just exercising his First Amendment rights. But public officials are accountable for the things they say; Mr. Trump would have fired any member of his Cabinet who had, say, publicly denounced him. Mr. Trump is responsible for whipping extremists into a frenzy with lies, encouraging violence and directing those extremists to the chambers in which members of Congress were overseeing the transfer of power. He betrayed his oath to faithfully execute his duties and defend the Constitution; indeed, he disrupted the core operations of the constitutional system.

Many Republicans avoid saying much about Jan. 6, instead claiming that the Senate cannot try to convict Mr. Trump after he has left office. This is a convenient but faulty interpretation. The Constitution contemplates two potential punishments for impeached officials: removal and barring from further service. If former officials could not be impeached and convicted, those facing impeachment could resign quickly and avoid being blacklisted. Historically, Congress has avoided this nonsensical view. What’s more, the House impeached Mr. Trump while he was still in office, and the Constitution states unambiguously that “the Senate shall have the sole Power to try all Impeachments.”

Senators must not hide behind fig-leaf arguments. They should listen to the nearly 400 congressional staffers who wrote them a letter about the trauma they endured on Jan. 6, begging them to convict Mr. Trump. And they should think about the precedent they set. As the House managers put it, “Failure to convict would embolden future leaders to attempt to retain power by any and all means — and would suggest that there is no line a President cannot cross.”

Feb. 8

washington post logoWashington Post, As impeachment trial nears, court documents cite Trump’s rage-fueling rhetoric, Rosalind S. Helderman, Rachel Weiner and Spencer S. Hsu, Feb. 8, 2021 (print ed.). Evidence to bolster the Democratic case has already emerged in federal criminal cases filed against more than 185 people so far in the aftermath of the insurrection.

Storming the U.S. Capitol on Jan. 6 was no spur-of-the-moment decision for Jessica Marie Watkins, an Ohio bartender and founder of a small, self-styled militia, federal prosecutors allege.

In documents charging her with conspiracy and other crimes for her role in the insurrection, they say she began planning such an operation shortly after President Donald Trump lost the November election, ultimately helping recruit and allegedly helping lead dozens of people who took violent action to try to stop congressional certification of the electoral college vote last month.

In text messages cited in court documents, Watkins was clear about why she was heading to Washington. “Trump wants all able bodied patriots to come,” she wrote to one of her alleged co-conspirators on Dec. 29, eight days before prosecutors say they invaded the building.

The question of what exactly motivated Watkins and other alleged rioters — and when their plans took shape — will be among the central questions of Trump’s impeachment trial this week, when the Senate will consider whether to convict the former president on charges that he incited the crowd to attack the Capitol.

The nine House impeachment managers leading Trump’s prosecution made clear in an 80-page brief filed last week that they will argue that his role in inspiring the crowd to action began long before the 70-minute speech he gave that day.

They assert that the violence was virtually inevitable after Trump spent months falsely claiming that the election had been stolen from him.

washington post logoWashington Post, Live updates: Trump attorneys call Senate trial over deadly Capitol riot a ‘brazen political act’ by Democrats, John Wagner and Paulina Firozi, Feb. 8, 2021. Attorneys for Donald Trump asked the Senate to dismiss the impeachment case against him in a brief filed Monday that contends the Constitution does not permit a trial of a former president and accuses Democrats of a “hunger for this political theater.”

President Biden, who returned to Washington from Delaware on Monday morning, plans to take a virtual tour of a professional football stadium in Arizona that has been turned into a mass coronavirus vaccination site as he continues to focus on combating the pandemic.

Here’s what to know:

  • Rep. Ron Wright (R-Tex.) has died after contracting covid-19. In a statement, Wright’s office said the 67-year-old lawmaker, who had been battling cancer, will be “remembered as a constitutional conservative.”
  • Two in 3 Americans approve of Biden’s handling of the coronavirus pandemic, according to a poll by ABC News-Ipsos that also shows widespread support for his efforts to pass a relief bill.

Filmmaker, libertarian, and avid Ron Paul supporter Jason Rink, left, working with

Filmmaker, libertarian, and avid Ron Paul supporter Jason Rink, left, working with "Stop the Steal" organizer Ali Alexander (Screenshot).

Proof, Investigative Commentary: Trump Told Stop the Steal Organizers He Would Speak at the Front of the Capitol After His January 6 Speech at the Ellipse, seth abramson headshotSeth Abramson, left, Feb. 8, 2021. New revelations about Trump's schedule for January 6 confirm that the White House was indispensable to the events that led to an armed assault on the U.S. Capitol.

In November 2020, filmmaker, libertarian, and avid Ron Paul supporter Jason Rink produced a short video romanticizing the then-nascent post-election Stop the Steal movement led by convicted felon and far-right activist Ali Alexander.

seth abramson proof logoAlexander quickly sent Rink his thanks for the short, and afterward the two continued their conversation via email, with Rink agreeing to go to Georgia to produce a one-day documentary on Alexander’s operation. That one day expanded into several days, and eventually into a feature-length documentary, The Steal, that Rink hopes to release by mid-2021. {Note: Ali Alexander claims to have planned the pre-breach events of January 6 along with three Trump Congressional allies: Reps. Mo Brooks, Paul Gosar, and Andy Biggs.} 

A trailer of The Steal—a still from which tops this article—reveals that Jason Rink’s weeks of shadowing Alexander, whom he now calls a “friend”, involved him also getting substantial footage of the pre-insurrection activities of Trump adviser and Stop the Steal organizer (as well as “Stop the roger stone hands waving no credit from stone cold CustomSteal” phrase-coiner) Roger Stone, left, in addition to footage of conspiracy theorist, InfoWars host, and third Stop the Steal organizer Alex Jones. It appears, too, that insurrectionist and far-right activist Nick Fuentes, often referred to as a white supremacist, is featured in Rink’s documentary.

Following the insurrection, Rink conducted a January 13, 2021 podcast interview with fellow libertarian Tatiana Moroz, during which chat he made the following striking statement (see 34:10 in this video; emphasis supplied):

“I was actually right at the front of the breach [of the Capitol] because I left Trump’s speech like 15 minutes into it [approximately 12:13 PM on January 6] because I was helping to set up a stage that was permitted [had received a permit to be erected] on the other side [the front] of the Capitol. And so I walked over early....[and] when I got to the Capitol, I actually have a little video clip, when people started first coming up to the gates and people started jumping over the fence to get onto the Capitol lawn. And it was kind of, like, regular angry MAGA people trying to get to the Capitol steps, is what I saw. And there was very little security out front of there. Surprisingly little.”

Those who haven’t been tracking the shocking statements made by Ali Alexander, Roger Stone, and Alex Jones on January 6 and January 7 may not immediately see why Rink’s statement is so striking, so I’ll unpack it in five steps

Feb. 6

djt looking up

washington post logoWashington Post, Trump’s access to sensitive briefings will be determined by intelligence officials, White House clarifies, Isaac Stanley-Becker, Feb. 6, 2021. The statement clarifies comments from President Biden to "CBS Evening News" expressing reluctance about making the briefings available to his predecessor.

The White House on Saturday said President Biden’s comment that his predecessor should not receive intelligence briefings was not a final decision on the matter, which will instead be resolved by intelligence officials.

Biden made his views known during an appearance on “CBS Evening News” with Norah O’Donnell. Asked whether former president Donald Trump should receive the briefings, as is customary for ex-presidents, Biden said, “I think not.”

“What value is giving him an intelligence briefing?” Biden said in a portion of the interview aired Friday. “What impact does he have at all, other than the fact he might slip and say something?” (See previous story: New York Times, Biden Bars Trump From Receiving Intelligence Briefings, Citing ‘Erratic Behavior,’ David E. Sanger.)

Biden has the unilateral authority to deny intelligence access to anyone he chooses, and his remarks seemed to suggest he considered Trump enough of a risk to do so. But his aides said he would leave that decision to his intelligence team.

“The president was expressing his concern about former president Trump receiving access to sensitive intelligence, but he also has deep trust in his own intelligence team to make a determination about how to provide intelligence information if at any point the former president Trump requests a briefing,” White House press secretary Jen Psaki said in a statement issued Saturday.

Former presidents do not receive the same classified daily briefing as a sitting commander in chief. Still, their briefings are typically delivered by current intelligence officers — partly out of respect and convention and partly to prepare them if their advice is solicited or if they’re representing the administration abroad.

The response made clear that Biden’s concerns go beyond the events of Jan. 6, which are core to the Senate impeachment trial set to begin in a few days. As president, Trump selectively revealed highly classified information to attack his adversaries, gain political advantage and impress or intimidate foreign governments, in some cases jeopardizing U.S. intelligence capabilities.

Proof, Investigative Commentary:  If You Love America, You Want Donald Trump Convicted. Here's Why, Seth Abramson, below left, Feb. 5, 2021. Far more is at stake now than the fate of a single political party or former president.

seth abramson headshotSome on both the left and right of American politics say that the main reason not to hold a trial of Donald Trump isn’t some fraudulent constitutional dodge cooked up by Trump, his lawyers, and Congressional Republicans — namely the canard, rejected by the nonpartisan Congressional Research Service, that the Senate can’t convict former presidents — but rather that an acquittal would signal our acquiescence to insurrection.

I don’t know what sort of backwards thinking this country’s intelligentsia has come to that it would embrace the paradox that upholding American rule of law undermines it; that way lies madness.

seth abramson proof logoIndeed, the very fact that an acquittal would signal the country’s acquiescence to insurrection is the reason to hold a trial. Nations hold trials as much to hold themselves accountable to their first principles as to hold defendants accountable.

american flag upside down distressThe jury in Trump’s upcoming trial is ostensibly the senators of the 117th Congress, but in fact it’s you, me, and every patriotic American. A conviction of Donald Trump for incitement to insurrection would be a vote by all of us to continue moving toward the America we wish to become, away from a dark period in our history of which so many of us are deeply ashamed.

By comparison, an acquittal would open the door to a return to that darkness in 2024, in the form of an embossed invitation for Trump to run for president again and to undoubtedly sow insurrection again.

Those in media today, and it is far too many, whose focus of late has not been on the future of our country but the daily political “horserace” that pays their salaries — and who, in inconsequence, have spent each hour of each day telling us that the verdict in this trial has already been determined — should be ashamed of themselves. And they should be shamed in the eyes of the tens of millions of Americans who understand that convicting Donald Trump of the most grave crime against an Oath of Office that any American president has ever committed is not a game, but a national imperative.

Seth Abramson, shown above and at right, is founder of Proof and is a former criminal defense attorney and criminal investigator who teaches digital journalism, seth abramson resized4 proof of collusionlegal advocacy, and cultural theory at the University of New Hampshire. A regular political and legal analyst on CNN and the BBC during the Trump presidency, he is a best-selling author who has published eight books and edited five anthologies.

Abramson is a graduate of Dartmouth College, Harvard Law School, the Iowa Writers' Workshop, and the Ph.D. program in English at University of Wisconsin-Madison. His books include a Trump trilogy: Proof of Corruption: Bribery, Impeachment, and Pandemic in the Age of Trump (2020); Proof of Conspiracy: How Trump's International Collusion Is Threatening American Democracy (2019); and Proof of Collusion: How Trump Betrayed America (2018).

 From left, Roy Cohn and Donald Trump attend the Trump Tower opening in New York on Oct. 1, 1983 (Sonia Moskowitz / Getty Images).

Feb. 5

ny times logoNew York Times, Biden Won’t Restore Bar Association’s Role in Vetting Judges, Charlie Savage, Feb. 5, 2021. The decision not to give the American Bar Association names of potential nominees for evaluation came after progressives criticized the group for undercutting a push for diversity.The Biden administration has told the American Bar Association that it will not restore the group’s quasi-official gatekeeper role in vetting potential judges before the president decides whether to nominate them, according to the legal group’s president, Patricia Lee Refo.

aba logoThe policy, a first for a Democratic president, echoes that of the last two Republican administrations. The bar association’s role had dated to the Eisenhower administration and served as a way to ensure that judges who have tenure for life are qualified.

“Every White House sets its own rules for judicial nominations,” Ms. Refo said in an interview. “Other White Houses have found it useful to get our confidential evaluation in private. This White House has made a different decision. But the evaluation work that we do will go forward without change.”

The bar association and the Obama administration had recurring tensions over the fact that most of the “not qualified” ratings the bar group’s peer-review system produced were for women or people of color. Against that backdrop, liberal groups greeted the decision as a signal that the White House under President Biden was determined to diversify the federal bench.

Not waiting for the bar association to vet potential nominees — a process that takes about a month, according to people familiar with it — is also likely to help speed Mr. Biden’s efforts to push nominations into the confirmation pipeline more quickly than President Barack Obama did. President Donald J. Trump set a record-breaking pace in appointing judges — largely white and male — during his term.

The decision by the White House was a blow to the prestige of the A.B.A., which describes itself as the largest voluntary association of lawyers in the world. Commenting on nominees only after their names have been put forward reduces the group’s power to block potential judges it deems unqualified.

Still, the bar group — which has expressed eagerness to work with the Biden administration on various issues related to the judicial system — is not publicly objecting to the shift.

Randall D. Noel, this year’s chairman of the bar association’s vetting committee, said he had been in contact with Senate Judiciary Committee staff members since the White House decision and was told that lawmakers still greatly value the A.B.A.’s input. He said his group would continue conducting its reviews before confirmation hearings, as it did under Mr. Trump.

Feb. 2

washington post logoWashington Post, Ginni Thomas apologizes to husband’s Supreme Court clerks after Capitol riot fallout, Robert Barnes, Feb. 2, 2021. Conservative political activist Virginia Thomas told her husband Justice Clarence Thomas’s former law clerks that she was sorry for a rift that developed among them after her election advocacy of President Donald Trump and endorsement of the Jan. 6 rally in D.C. that resulted in violence and death at the Capitol.

“I owe you all an apology. I have likely imposed on you my lifetime passions,” Thomas, who goes by Ginni, recently wrote to a private Thomas Clerk World email list of her husband’s staff over his three decades on the bench.

“My passions and beliefs are likely shared with the bulk of you, but certainly not all. And sometimes the smallest matters can divide loved ones for too long. Let’s pledge to not let politics divide THIS family, and learn to speak more gently and knowingly across the divide.”

clarence virginia thomas swearing inA sampling of posts made to the group were shared with The Washington Post by a member upset with some of the pro-Trump messages written by Ginni Thomas and others in the lead-up and aftermath of the election. Thomas did not respond to requests for comment. Several former clerks, who spoke on the condition of anonymity because the listserv is private, verified the dispute in what is normally an affable setting meant to celebrate achievements of the clerk “family.”

Besides the friction there, Thomas (shown with her husband at his 1991 swearing-in ceremony) has drawn outrage among liberals for public political commentary on her “Ginni Thomas” Facebook page. Her comments there celebrated Trump’s supporters who assembled in D.C. on Jan. 6, hundreds of whom stormed the Capitol, resulting in the deaths of five people.

In the early morning post, Thomas encouraged her Facebook followers to watch the day’s events unfold on conservative news media, writing, “LOVE MAGA people!!!!”


Thomas later appended an apparent disclaimer that said, “[Note: written before violence in US Capitol],” according to Mark Joseph Stern of Slate.com, who first wrote about the posts. The Facebook account is no longer visible.

Feb. 1

ny times logoNew York Times, Analysis: Supreme Court Test for Biden: How Boldly to Disavow the Trump Agenda, Adam Liptak, right, Feb. 1, 2021. President Biden’s adam liptakadministration may not be as cautious as usual about changing his predecessor’s legal positions.

Chief Justice John G. Roberts Jr. was annoyed.

“The position that the United States is advancing today is different from the position that the United States previously advanced,” he told a lawyer in the solicitor general’s office, the elite unit of the Justice Department that represents the federal government in the Supreme Court.

The Obama administration had filed a brief disavowing a position taken by its predecessor, saying it was the product of “further reflection.”

“That is not the reason,” Chief Justice Roberts said. “It wasn’t further reflection.” The new position, he said, was prompted by a change in administrations.

The rebuke was in 2012, but its memory lingers in the solicitor general’s office, where the Biden administration will soon have to decide whether to disavow positions taken by its predecessor in major cases, including ones on health care and voting.

In an office that prizes its reputation for credibility, consistency and independence, solicitors general of both parties have said they are wary of veering from positions staked out by their predecessors.

Justice Elena Kagan, who was President Barack Obama’s first solicitor general before joining the court, has said, for instance, that “a change in position is a really big deal that people should hesitate a long time over.”

But a new law review article presents a dissenting view, concluding that the Biden administration need not fear announcing bold reversals of stances taken by the Trump administration. It was written by Michael R. Dreeben, who worked in the office for more than 30 years, most of them as the deputy solicitor general responsible for criminal matters, arguing 105 cases in the Supreme Court. He also served on the staff of Robert S. Mueller III, the special counsel who investigated Russian interference in the 2016 election.
The Morning: Make sense of the day’s news and ideas. David Leonhardt and Times journalists guide you through what’s happening — and why it matters.

“The new administration should be not reluctant to give the court better views of what it thinks the law is because of undue concern about positional consistency,” Mr. Dreeben, who is now a lawyer with O’Melveny & Myers, said in an interview. “The court will understand that new administrations have new views, particularly coming on the heels of the Trump administration, which in many ways pressed a radical vision of its jurisprudential agenda on the court that a successor administration is entitled to push back on.”

The article, published in The Yale Law Journal last month, contrasted the Obama administration’s rare reversals to the Trump administration’s frequent and stark ones.

“The Obama administration swept into office following eight years of Republican rule, and ample areas existed for revision and change,” Mr. Dreeben wrote. “But President Obama’s solicitors general took a highly restrained approach to reversing the positions of their Bush predecessors. During President Obama’s first term in office, no cases featured overt reversals of positions taken in the Supreme Court.”

The Trump administration took a different approach, Mr. Dreeben found.

The most pressing question for the Biden administration for now is whether it should change the government’s position in the latest challenge to the Affordable Care Act. In a brief filed last year, the Trump administration told the justices that a revision to one provision of the law meant that the entire statute must fall. That is, of course, at odds with President Biden’s support for the law.



Jan. 26

ny times logoNew York Times, Deborah Rhode, Who Transformed the Field of Legal Ethics, Dies at 68, Clay Risen, Jan. 26, 2021 (print ed.). A Stanford professor, she pushed the legal profession to confront the ways it failed clients and to be more inclusive of women.

deborah l rhode resizedDeborah L. Rhode, right, a law professor who transformed the field of legal ethics from little more than a crib sheet for passing the bar exam into an empirically rich, morally rigorous investigation into how lawyers should serve the public, died on Jan. 8 at her home in Stanford, Calif. She was 68.

Her husband, Ralph Cavanagh, confirmed her death but said the cause had not yet been determined.

With 30 books and some 200 law review articles to her name, Professor Rhode, who spent over four decades teaching at Stanford, was by far the most-cited scholar in legal ethics, with a work ethic that astounded even her hard-charging colleagues.

“She was done with all her chapters before I started mine,” said David J. Luban, a law professor at Georgetown and one of her co-authors on Legal Ethics, a casebook now in its eighth edition.

To Professor Rhode, the core issues in legal ethics were not about bar association rules, but the politics and interests behind those rules, especially those that limited who could practice law and how lawyers should go about providing services to people who could not afford them.

“In her view, it wasn’t enough to memorize rules or espouse airy principles," said Nora Freeman Engstrom, a fellow law professor at Stanford. “Legal ethics — and legal ethics scholars — would have to refocus on what matters: access to justice, integrity, accountability, and equality.”

Professor Rhode was a relentless critic of the American Bar Association, which she believed was too focused on barriers to entry that undermined innovation and kept legal fees high. Such was her intellectual standing that in 2014 the association nevertheless gave her its Outstanding Scholar Award.

She was equally concerned with issues of gender in the legal profession, a subject she knew well from deep personal experience. As one of a handful of women at Yale Law School in the mid-1970s, and later as only the second woman to receive tenure at Stanford Law School, she found herself constantly harassed, demeaned and excluded by colleagues.

When she arrived at Stanford in 1979, she had wanted to teach gender and the law, but the dean refused, telling her to pick a “real subject,” as she recalled. She agreed to teach contracts instead, but changed her mind two years later when the dean retired and several alumni threw him a party — and invited a stripper.

“I said to hell with contracts,” she later wrote.

But progress on gender-equity issues brought its own complications. As women made their way into law firms and legal faculties, among other professions, during the 1980s and ’90s, it became easy to conclude that sex discrimination had disappeared, or was fast on its way to disappearing — what Professor Rhode referred to as the “no-problem problem.”

One of Professor Rhode’s best known books grew out of an Op-Ed for The New York Times about her distaste for high heels and the social mores that demand women wear them.

Through law review articles and countless opinion pieces in publications like The New York Times, The New Republic and Slate, she documented the barriers that women still faced, among them unconscious bias, unequal pay, lack of mentors, stereotypes and inflexible workplace structures.

U.S. Politics, Governance, Civic Life

Steve Bannon at a 2013 Tea Party Rally (Photo via C-SPAN)

Steve Bannon at a 2013 Tea Party Rally (Photo via C-SPAN)

Wayne Madsen Report, Commentary: The battle against fascism and a looming World War III, Wayne Madsen, right, Jan. 26, 2021. The threat of international wayne madsen screen shotfascism is now so great, the world's democracies must declare total war on the leadership, militias, political constructs, and infrastructure of global fascism.

On January 25, the House of Commons in Canada got the ball rolling by unanimously voting for a motion put forth by the New Democratic Party (NDP) that canadian flagdeclares the pro-Donald Trump Proud Boys a terrorist organization and bans it from operating on Canadian soil.

The U.S. government should awake to the dangers of the global fascist movement.

Two overseas organizations that involve Americans, The Movement and The Base, should be squeezed politically and financially by the Biden administration. The Movement, which is headquartered in Brussels and is Steve Bannon's fledgling Fascist International, has managed to secure funding guo wen gui 2017from exiled Chinese billionaire Guo Wengui, left -- who has replaced Robert and Rebekah Mercer as Bannon's primary sugar daddy -- and moneyed interests in the Roman Catholic Church that are affiliated with the fascist religious order Opus Dei.

Guo has provided Bannon with media platforms, including a television network, that are being used to rally the extreme right around the United States and the world. Guo was granted political asylum by the Trump administration after China issued a warrant for his arrest for epoch timesseveral counts of financial fraud in China.

Guo and Bannon have linked their media efforts with those of the religious cult Falun Gong, which publishes the pro-Trump and far-right conspiracy newspaper Epoch Times. Bannon's strategy is to infiltrate existing political parties with far-right activists. So far, Bannon's ploy has seen success with the Republican Party, especially its state-level party organizations in Arizona, Oregon, Maine, Texas, and Hawaii that have been largely taken over by conspiracy theorists touting Qanon inanity.

Jan. 25

mar a lago aerial Custom

washington post logoWashington Post, Supreme Court ends lawsuits alleging Trump illegally profited from business interests, Robert Barnes and Ann E. Marimow, Jan. 25, 2021. All sides agreed that cases involving “emoluments clauses” are moot after Donald Trump lost reelection.

The Supreme Court on Monday put an end to lawsuits alleging that former president Donald Trump violated a constitutional anti-corruption prohibition by profiting from his business empire while president.

The justices, without comment or noted dissent, declined to hear Trump’s request to consider lower court orders that said lawsuits could go forward, agreeing with those on both sides of the issue that the cases became moot with Trump no longer in office.

The justices also vacated the lower court judgments in the cases, one of which was filed by the attorneys general of Maryland and the District of Columbia.

It means that there is no definitive answer after years of legal wrangling over the Constitution’s emoluments clauses, which prohibit presidents and others from accepting gifts or payments from foreign governments without congressional approval.

The question has rarely been presented because presidents rarely maintain active business interests in office, as Trump did. Much of the litigation turned on the president’s interest in the Trump International Hotel on Pennsylvania Avenue, near the White House, which became a magnet for foreign dignitaries and others doing business with the government.

The litigation was consumed with questions about who had the right to bring such a suit, and legal questions without precedent.

“We are proud that because of our case, a court ruled on the meaning of ‘emoluments’ for the first time in American history, finding that the Constitution prohibits federal officials from accepting almost anything of value from foreign or domestic governments,” District of Columbia Attorney General Karl A. Racine and Maryland Attorney General Brian E. Frosh said in a joint statement.

ny times logoNew York Times, Supreme Court Won’t Hear Appeal from Sheldon Silver, Former N.Y. Lawmaker, Adam Liptak, Jan. 25, 2021. Mr. Silver, who once dominated state politics as the speaker of the New York Assembly, was convicted of taking illicit payments from real estate developers.

sheldon silver wThe Supreme Court on Monday let stand the conviction of Sheldon Silver, right, the once-powerful State Assembly speaker in New York who went to prison last summer on federal corruption charges.

As is the court’s custom, its brief order gave no reasons for turning down the case. Justice Neil M. Gorsuch, joined by Justice Clarence Thomas, dissented, saying the court should have heard the case to clarify its rulings on bribery and extortion.

The court has in recent years been skeptical of broad interpretations of public corruption laws, saying they are not all-purpose devices to ensure good government.

Mr. Silver’s lawyers told the justices that prosecutors had overreached in his case by securing his conviction of accepting bribes in a real estate scheme without proving that those who made the payments had intended to influence particular official actions.

The federal appeals court in New York, in affirming Mr. Silver’s conviction for his role in the scheme, said it was enough that he understood that he would take official actions in exchange for the payments.

washington post logoWashington Post, Six shot dead, including pregnant woman, in ‘mass murder,’ Indianapolis officials say, Meryl Kornfield, Jan. 25, 2021 (print ed.). Authorities said they have determined the attack was “targeted” and there may have been more than one shooter, but no suspects have been identified.

FBI crime data indicated killings rose nearly 21 percent nationwide in the first nine months of the year, The Post previously reported.

Palmer Report, Opinion: Finishing off Brett Kavanaugh, Bill Palmer, Jan. 25, 2021. Democratic Senator Sheldon Whitehouse expressed his ongoing exasperation this week that the Trump-era DOJ never did properly investigate Brett Kavanaugh, and now Kavanaugh is casting absurd Supreme Court votes unabated.

bill palmer report logo headerThe minute President Biden’s Attorney General Merrick Garland is confirmed, I strongly urge Senate Democrats to refer Brett Kavanaugh to the DOJ for felony perjury. It’s an easily proven charge, as we all saw him lie under oath about various key topics during his confirmation hearing.

If the DOJ brings a case, Kavanaugh will end up having to resign in exchange for non-prosecution. There’s never a guarantee that the DOJ will bring a case. But with Trump gone, and the DOJ being back to making decisions based on the merits of any given case, it’s difficult to imagine the DOJ not bringing a case in such a clear cut instance of felony perjury. For that matter, once the DOJ opens the perjury case, it can investigate the things he was lying about, such as how his debts magically disappeared, and get to the bottom of that as well.

Kavanaugh has to go. Even if we can’t nail him for sexual assault, we can nail him for perjury. Getting him off the Supreme Court won’t fix what’s currently wrong with the court – but it’ll make doing so easier.

Jan. 23

Justice Department logo

ny times logoNew York Times, Trump and Justice Dept. Lawyer Said to Have Plotted to Oust Acting Attorney General, Katie Benner, Jan. 23, 2021 (print ed.). Trying to find another avenue to push his baseless election claims, Donald Trump considered installing a loyalist, and had the men make their cases to him.

The Justice Department’s top leaders listened in stunned silence this month: One of their peers, they were told, had devised a plan with President Donald J. jeffrey rosenTrump to oust Jeffrey A. Rosen, right, as acting attorney general and wield the department’s power to force Georgia state lawmakers to overturn its presidential election results.

The unassuming lawyer who worked on the plan, Jeffrey Clark, left, had been devising ways to cast doubt on the election results and to bolster Mr. Trump’s continuing legal battles and the pressure on Georgia politicians. Because Mr. Rosen had refused the president’s entreaties to jeffrey clark ocarry out those plans, Mr. Trump was about to decide whether to fire Mr. Rosen and replace him with Mr. Clark.

The department officials, convened on a conference call, then asked each other: What will you do if Mr. Rosen is dismissed?

The answer was unanimous. They would resign.

Their informal pact ultimately helped persuade Mr. Trump to keep Mr. Rosen in place, calculating that a furor over mass resignations at the top of the Justice Department would eclipse any attention on his baseless accusations of voter fraud. Mr. Trump’s decision came only after Mr. Rosen and Mr. Clark made their competing cases to him in a bizarre White House meeting that two officials compared with an episode of Mr. Trump’s reality show “The Apprentice,” albeit one that could prompt a constitutional crisis.

georgia mapThe previously unknown chapter was the culmination of the president’s long-running effort to batter the Justice Department into advancing his personal agenda. He also pressed Mr. Rosen to appoint special counsels, including one who would look into Dominion Voting Systems, a maker of election equipment that Mr. Trump’s allies had falsely said was working with Venezuela to flip votes from Mr. Trump to Joseph R. Biden Jr.

dominion voting systemsThis account of the department’s final days under Mr. Trump’s leadership is based on interviews with four former Trump administration officials who asked not to be named because of fear of retaliation.

Mr. Clark said that this account contained inaccuracies but did not specify, adding that he could not discuss any conversations with Mr. Trump or Justice Department lawyers. “Senior Justice Department lawyers, not uncommonly, provide legal advice to the White House as part of our duties,” he said. “All my official communications were consistent with law.”

nancy pelosi chuck schumer cropped jan 8 2019 screengrab

 washington post logoWashington Post, Senate reaches deal to start Trump’s trial Feb. 9, Mike DeBonis, Jan. 23, 2021 (print ed.). The majority leader said the wait would allow the Senate to make further progress on President Biden’s nominations and his $2 trillion pandemic relief proposal.

The impeachment trial of former president Donald Trump will begin Feb. 9 under a deal reached Friday by top Senate leaders — delaying by two weeks the us senate logohigh-stakes proceedings over whether Trump incited the violent Jan. 6 attack on the U.S. Capitol.

The agreement was made by Senate Majority Leader Charles E. Schumer (D-N.Y.), above left, and Minority Leader Mitch McConnell (R-Ky.), right, following a standoff over the timing of the trial, which could permanently bar Trump from holding public office.

mitch mcconnellThe House on Jan. 13 passed a sole impeachment article, alleging “incitement of insurrection.” House leaders could have forced the Senate to begin the trial immediately by transmitting the papers across the Capitol. But a delay serves the former and current presidents: Trump has struggled to assemble a legal team and muster a defense, and President Biden needs the Senate to confirm most of his Cabinet appointees.

McConnell pushed Thursday for a three-week delay, but Schumer and House Speaker Nancy Pelosi (D-Calif.), above right, on Friday morning announced their intention to deliver the impeachment papers Monday — setting up a trial as soon as Tuesday. Later in the day, Biden publicly called for a delay, saying, “the more time we have to get up and running to meet these crises, the better.”

Announcing the two-week timetable Friday, Schumer said the wait would allow the Senate to make further progress on Biden’s nominations and his $2 trillion pandemic relief proposal — the centerpiece of his early legislative agenda — before shifting to Trump.

“We all want to put this awful chapter in our nation’s history behind us, but healing and unity will only come if there is truth and accountability, and that is what this trial will provide,” he said.

ny times logoNew York Times, White House Orders Assessment on Violent Extremism in the U.S., Julian E. Barnes and Hailey Fuchs, Jan. 23, 2021 (print ed.). President Biden on Friday ordered the director of national intelligence to work with the F.B.I. and the Department of Homeland Security to conduct a comprehensive assessment of the threat from domestic violent extremism, a sign of how seriously the new administration is taking the issue in the aftermath of the Jan. 6 riot at the Capitol.

The request comes only days after Avril D. Haines, the newly installed director of national intelligence, pledged to members of Congress during her confirmation hearing that she would help with just such an assessment.

FBI logoThe new intelligence work began as people charged in the mob attack on the Capitol by supporters of former President Donald J. Trump continued to appear in court. On Friday, a federal magistrate judge in Dayton, Ohio ordered Donovan Crowl, an accused rioter linked to the far-right group the Oath Keepers, detained until his trial, citing the safety of the community.

Domestic terrorism and violent groups are a thorny issue for intelligence agencies like the C.I.A., which are limited to tracking attempts by foreign governments or organizations to influence extremist groups in America. The F.B.I. and Department of Homeland Security have more leeway to investigate domestic groups and homegrown terrorism.

But Friday’s order will have practical as well as symbolic import. Jen Psaki, the White House press secretary, said the assessment would help Mr. Biden hone his policies aimed at curbing violent extremism in the United States.

“This assessment will draw on the analysis from across the government and, as appropriate, nongovernmental organizations,” Ms. Psaki said. “The key point here is that we want fact-based analysis upon which we can shape policy.”

In recent years, some parts of the intelligence community have been working to increase their focus on the threat of domestic terrorism, particularly by doing more to track growing foreign influence operations on domestic groups. The C.I.A. also has officers in its counterterrorism section who specialize in tracking racially-motivated violent extremists overseas.

The order for the evaluation from the intelligence community comes as judges continue to deny bail for suspects in the Capitol riot.

Jan. 22

President Donald J. Trump salutes as he prepares to board Marine One at Dalton Municipal Airport in Dalton, Ga, 2021 (Official White House Photo by Tia Dufour).

President Donald J. Trump salutes as he prepares to board Marine One at Dalton Municipal Airport in Dalton, Ga, 2021 (Official White House Photo by Tia Dufour).

Lawfare, Analysis: A Practical Path to Condemn and Disqualify Donald Trump, Philip Zelikow, Jan. 22, 2021. Time has come for Congress to contemplate how to hold Donald Trump accountable for his efforts to overthrow the election and incite an insurrection. After all, the last time American citizens made such a concerted, violent effort to overthrow U.S. leaders was in April 1865, when a group of conspirators murdered President Abraham Lincoln and attacked other members of his Cabinet.

As others have noticed, Congress can pursue either impeachment or the invocation of Section 3 of the 14th Amendment. Impeachment has gotten the bulk of public attention, but it’s fitting to take a closer look at Section 3. The 14th Amendment path is true to the facts and preferable procedurally, as compared to impeachment.

The 14th Amendment disqualifies any enemy of the Constitution of the United States from holding state or federal office if that person, as a public official, had previously taken an oath to support the Constitution. Congress has the duty to enforce the 14th Amendment and only Congress, “by vote of two-thirds of each House[,]” has the power to enforce the provision and to remove the disqualification.

How might Congress go about enforcing Section 3? It can simply decide in any manner it wishes, including a resolution adopted by majority votes, that Donald Trump has “given aid or comfort to the enemies” of the Constitution of the United States. The U.S. Senate, for example, refused to seat Zebulon Vance in 1871 when North Carolina elected him to the Senate because, as a former congressman, he had violated his former oath by serving the Confederacy.

In the extensive discussions of this option, for instance, by Gerard Magliocca and Daniel Hemel here on Lawfare, there are two points that may be missed in those thickets and that require emphasis.

First, the 14th Amendment does not require the Senate to conclude that Trump engaged in an insurrection. The amendment requires only that Congress conclude that Trump gave aid or comfort to enemies of the Constitution. This he did, both on Jan. 6 and in the broader context of the events after the presidential election of 2020.

The House of Representatives has already adopted this conclusion. The article of impeachment adopted by the House found that Trump violated his oath to defend the Constitution “by willfully inciting violence against the Government of the United States.” It also found that this conduct was “consistent with his prior efforts to subvert and obstruct the certification of the results of the 2020 presidential election.” Thus, the House concluded, “In all of this, President Trump gravely endangered the security of the United States and its institutions of government.”

Hemel’s explanation of the relevant standard confused matters a bit because he discussed how “aid and comfort” was defined under the criminal law of treason, which applies to enemies “of the United States.” The 14th Amendment is not identical to the criminal law of treason: It refers to enemies of the Constitution.

What America just experienced was an assault by enemies at home who, while claiming to be patriots, sought to override and thus overthrow the Constitution’s procedures for electing a president. Though he had sworn to defend the Constitution as a public official, Trump gave aid and comfort to these enemies of the Constitution. He thereby, under the 14th Amendment, disqualified himself from holding future office unless the Congress chooses to remove the disqualification by a two-thirds vote.

The House already voted that Trump aided these enemies. The Senate could therefore just concur with the House’s conclusion, by majority vote, in a resolution. To make the legal implication of this shared conclusion clear, the resolution could add that, by these actions, Donald Trump gave aid or comfort to enemies of the Constitution of the United States. This would explicitly invoke the 14th Amendment standard. Period.

Magliocca is reluctant to find power for a congressional finding because he believes some judicial involvement is needed to establish 14th Amendment disability. But the 14th Amendment expressly gives Congress the direct constitutional authority to enforce its provisions, including by legislation.

Some might worry that a congressional finding violates the constitutional prohibition on bills of attainder, a legislative act that pronounces an individual’s guilt of a certain crime. But the congressional finding is not a prohibited bill of attainder. It is not a criminal conviction. The criminal law of treason is a separate matter with its own burdens of proof and penalties.

Magliocca refers to the use of the bill-of-attainder argument by a then-Supreme Court justice, Salmon Chase. The issue came up in the treason trial case of Jefferson Davis. It was voiced by one of the two circuit judges considering the matter, Supreme Court Chief Justice Chase, who was there in his circuit-riding role. The U.S. government thought this argument was meritless, as did the other judge hearing the case and as did lead sponsors of the 14th Amendment itself. The circuit court was therefore split. The issue was not settled by the U.S. Supreme Court only because President Andrew Johnson pardoned Davis before the case could be heard.

The strangeness of the bill-of-attainder argument is underscored if one understands the historical background. Cynthia Nicoletti, a University of Virginia colleague who teaches both law and history, is the leading scholar on the Davis case. She told me she was “sort of tickled that Davis’s argument, which was cooked up by Chase and handed to his lawyers for Chase’s political gain, is being taken seriously. I always regarded it as pure nonsense. What’s really interesting to me is how it takes on a life of its own once it’s taken out of context and printed in the federal reports.”

Chase wanted to get rid of the Davis case. He had an ex parte meeting with Davis’s lawyers and suggested to them that they argue for dismissal of the indictment on the ground that the 14th Amendment had already assessed his criminal punishment and that his treason trial was therefore double jeopardy. When the government’s lawyers objected to the silliness of this claim, Chase acted as if he had not heard of the bill-of-attainder argument before. Davis’s main lawyer had his own theories about the motivations for Chase’s unusual intervention, which the court alluded to in a veiled way. Those who are interested should read Chapter 14 of Nicoletti’s book (especially pp. 293-300).

The main point, then, is that Congress can apply the 14th Amendment disqualification to Trump, by majority vote. This congressional action might eventually be challenged in court if Trump did run again and got on a ballot. The same would happen if someone who was not native born got on the ballot to run for president.

Those who want a fuller sort of accountability for Trump can make the political and legal argument that, if the votes may be there, impeachment might well be preferable. But an impeachment trial and acquittal might also be unfortunate if it fails, if it redoubles public confusion (why are they impeaching him if he is out of office?), or if it derails urgent congressional business. That is why I think it is important to maintain and develop the 14th Amendment option.

Philip Zelikow is the White Burkett Miller Professor of History at the University of Virginia. He has practiced law and served in various government positions, including as the executive director of the 9/11 Commission.


White House Advisor Mercedes Schlapp and her husband, prominent attorney and Trump defender Matt Schlapp flank U.S. Supreme Court Justice Brett Kavanaugh

White House Advisor Mercedes Schlapp and her husband, prominent Trump ally Matt Schlapp flank U.S. Supreme Court Justice Brett Kavanaugh.

Axios, Trump ally Matt Schlapp got $750k in unsuccessful pardon push, Lachlan Markay, Jan 22, 2021. The lobbying firm run by Trump ally Matt Schlapp brought in $750,000 in the final two weeks of 2020 from a former top Trump fundraiser and convicted fraudster who retained Schlapp to lobby — unsuccessfully — for a presidential pardon.

Why it matters: The substantial sum that the former fundraiser, Georgia's Parker "Pete" Petit, paid to Schlapp's Cove Strategies shows how valuable connections to Donald Trump were in his final days in office for wealthy felons seeking clemency from the outgoing president.

What's new: Lobbying disclosure records filed on Thursday said Schlapp, a close informal Trump adviser, worked on a "request for a pardon and other public policy issues relating to criminal justice."

The disclosure filing, which covered the last two weeks of 2020, said that Schlapp had contacted just one government office on Petit's behalf: the Executive Office of the President.
Petit was not on the list of the nearly 150 pardons and commutations that the White House released during Trump's final days in office.
Schlapp didn't respond to inquiries about the other policy work he reported performing on the account.

The backstory: Petit, a former Atlanta health care executive, co-chaired the Trump campaign's 2016 fundraising operation in Georgia.

A federal court convicted him of securities fraud in November. The charge carries a maximum sentence of 20 years in prison.

Be smart: A host of federal convicts retained lobbyists to try to win clemency from Trump in his final days. But even the most lucrative lobbying contracts didn't guarantee success.

Jan. 21

Wayne Madsen Report, Investigative Commentary: Kushner's contribution to Trump's final pardon list, Wayne Madsen, left, Jan. 21, 2021.
Donald Trump's final pardon list more resembled Jared Kushner's wish list than anything nearing a legitimate granting of clemency. In fact, counting the number of rabbis mentioned on the list as individuals putting in a good word for convicted criminals it is clear that Kushner's close connections to the right-wing Chabad organization played a big part in the formulation of the final pardon list.

Let's take a look at Trump's and Kushner's rogues gallery of those receiving pardons:

rudy giuliani recentKen Kurson was the deputy director of communications of Giuliani Partners from 2002 to 2006 and co-authored a book with Giuliani titled "Leadership." Kurson was the chief of operations for Giuliani's ill-fated 2008 presidential campaign.

In 2013, Kushner, the owner of the neo-conservative New York Observer, named Kurson as the paper's editor. The paper fed into the Trump 2016 presidential campaign's propaganda machine.

Jan. 19

ny times logoNew York Times, Analysis:' Expedited Spree of Executions’ Faced Little Supreme Court Scrutiny, Adam Liptak, right, Jan. 19, 2021 (print ed.). In its last six months, the Trump administration put more than three times as many prisoners to death as the federal government had in the last six decades.

adam liptakIn 2015, a few months before he died, Justice Antonin Scalia said he would not be surprised if the Supreme Court did away with the death penalty.

These days, after President Trump’s appointment of three justices, liberal members of the court have lost all hope of abolishing capital punishment. In the face of an extraordinary run of federal executions over the past six months, they have been left to wonder whether the court is prepared to play any role in capital cases beyond hastening executions.

Until July, there had been no federal executions in 17 years. Since then, the Trump administration has executed 13 inmates, more than three times as many as the federal government had put to death in the previous six decades.

In a dissent issued late Friday, as the court cleared the way for the last execution of the Trump era, Justice Sonia Sotomayor took stock of what the nation had learned about the Supreme Court’s attitude toward the death penalty.

“Over the past six months, this court has repeatedly sidestepped its usual deliberative processes, often at the government’s request, allowing it to push forward with an unprecedented, breakneck timetable of executions,” she wrote.

“Throughout this expedited spree of executions, this court has consistently rejected inmates’ credible claims for relief,” Justice Sotomayor continued. “The court made these weighty decisions in response to emergency applications, with little opportunity for proper briefing and consideration, often in just a few short days or even hours.”

Adam Liptak covers the Supreme Court and writes Sidebar, a column on legal developments. A graduate of Yale Law School, he practiced law for 14 years before joining The Times in 2002.

Law360, Investigation: Girardi Gained Their Trust, But Left Them With Regret, Brandon Lowrey & Ryan Boysen, Jan. 19, 2021. In an airy conference room overlooking downtown San Francisco, celebrity trial lawyer Thomas V. Girardi looked into Kathy Ruigomez's sleepless eyes and told her everything was going to be all right.

Nobody had said that to Ruigomez in the month since a natural gas pipeline explosion incinerated her home and left her 19-year-old son, Joe Ruigomez, burned and comatose. The September 2010 blast killed eight people, including Joe's girlfriend, sending flames high into the sky above their San Bruno, California, neighborhood.

Now, in an interview a decade later, Kathy Ruigomez wondered if Girardi knew he was lying when he spoke those words.

Girardi had seemed different from other lawyers, whose shills hounded Ruigomez in the hospital cafeteria and jockeyed like salesmen to take up her family's valuable claims against the utility company responsible for the blast, Pacific Gas and Electric.

Girardi wore an impeccable suit and a disarming smile that was so contagious, it drew a smile out of Ruigomez for the first time since the explosion. She knew the Los Angeles plaintiffs attorney had beaten PG&E before; she had seen "Erin Brockovich," the blockbuster film that immortalized the $333 million settlement he'd wrung out of the company in 1996.

Let me take care of all of the legal stuff, Girardi told her. You just focus on healing. Ruigomez signed a retainer agreement days later.

As Girardi had promised, things quickly began looking up. He brought in top medical specialists to help Joe, who awakened from his coma.

Girardi visited the young man regularly to stand by his bedside and encourage him. The attorney began to feel like part of the family. For years after the family reached an eight-figure settlement against PG&E, Girardi kept watch over many of the settlement funds and stayed in touch with Joe, who revered him.

Ruigomez didn't think anything of Girardi's frequent visits with her son. But that changed when the family finally asked Girardi to turn over the money.

"It's kind of disturbing that he wanted to see [Joe] face to face when he was basically stealing his money," Ruigomez said. "It's kind of a little, you know — very unsettling."

Ruigomez is among numerous former clients who have discovered that Girardi, their celebrated advocate, took much of the money he won for them and spent it.

For years, Girardi built a reputation as a wildly successful fighter for the underdog, plastering the walls of his Wilshire Boulevard office with awards and articles celebrating his billion-dollar settlements, and flaunting his absurd wealth alongside his wife on "The Real Housewives of Beverly Hills."

But when the cameras were off, the champion of the downtrodden became their predator, according to a string of lawsuits. Elderly cancer patients, poisoned families and blue-collar workers, earthquake survivors, widows and orphans have all accused him of taking untold millions from them.

Last month, an attorney for his law firm, Girardi Keese, admitted Girardi had misappropriated $2 million from a settlement fund for survivors of plane crash victims, leading to intense scrutiny of his finances and prompting creditors to drag him and his firm into bankruptcy.

But a Law360 review of thousands of pages of court documents and dozens of interviews with attorneys, former clients and others in his orbit show Girardi has faced similar accusations going back decades, even before "Erin Brockovich" made him a star.

All the while, he exploited his fearsome reputation, influence, and structural failings in the legal system to keep his clients in the dark and silence his accusers.

Jan. 15

Lawfare, Analysis: Can a Former President Be Impeached and Convicted? Keith E. Whittington, Jan. 15, 2021. I have a great deal of respect for former Judge Michael Luttig, and so one should think twice when one finds oneself in disagreement with him. I have previously argued that former presidents can be subject to House impeachment and a Senate trial. In a recent Twitter thread, now converted into an op-ed, Luttig argues that former presidents are beyond the reach of the impeachment power. I am not persuaded.

It looks like this question will be a live one, because Senate Majority Leader Mitch McConnell is not agreeing to calling the Senate back into session for an impeachment trial before Inauguration Day.

Trump’s defense team will undoubtedly argue that the Senate does not have jurisdiction over the former president, and they may even attempt to get judicial intervention if the Senate moves ahead despite that objection. Assuming the Senate (and the courts) do not shut down the trial before it gets started, the jurisdictional argument might still matter. It takes only a majority of senators to overrule the motion to dismiss, but it will take two-thirds to convict on the article of impeachment. Some number of Republican senators might latch hold of the jurisdictional argument as a reason to vote against conviction. For this reason, it’s worth taking this issue seriously.

I continue to believe that the senators should not let such a jurisdictional argument hold them up, as does Brian Kalt, who has looked into this issue closely. Luttig, however, writes that the “Constitution itself answers this question clearly.” He believes that “the Senate’s only power under the Constitution is to convict — or not — an incumbent president.” He points to “purpose, text and structure” in support of this conclusion.

The core of his claim is this argument:

The very concept of constitutional impeachment presupposes the impeachment, conviction and removal of a president who is, at the time of his impeachment, an incumbent in the office from which he is removed. Indeed, that was the purpose of the impeachment power, to remove from office a president or other “civil official” before he could further harm the nation from the office he then occupies.

Luttig notes that Article II, Section 4 of the Constitution states, “The President, Vice President and all civil officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.” Likewise, the Senate cannot convict and impose the punishment of disqualification from future federal office unless the president has been “constitutionally impeached.”

He admits that the Senate proceeded in two cases involving officials who had resigned from office before the trial and that, therefore, the congressional understanding of its impeachment power includes the possibility of trial, if not impeachment, of former officials. But, he says, “only the Supreme Court can answer the question” of the scope of the impeachment power, and he thinks that it is “so clear” that the Senate does not possess such jurisdiction that it is “highly unlikely” that the Supreme Court would accept a Senate trial in Trump’s case.

I have to admit that this conclusion is not nearly “so clear” to me. Let’s begin with the text. It is notable that the Constitution does not explicitly say who is subject to the jurisdiction of the House in the chamber’s exercise of the impeachment power, and it does not explicitly prohibit the impeachment of former officers. Luttig does not explain why he draws the inference he does from the text that he quotes. It is a plausible reading of the text, but it is not necessarily the only or correct reading.

The Constitution gives the House the “sole Power of Impeachment.” It gives the Senate the “sole Power to try all Impeachments.” The House cannot prosecute its impeachment before some other, more friendly body than the Senate, and the Senate cannot initiate its own impeachment process. The Constitution does not specify the scope of the impeachment power, except to delineate the types of charges that can be the basis for an impeachment, limit the types of punishments the Senate can impose on the convicted, and direct that certain officers “shall be removed from office” upon impeachment and conviction.

So it seems important to know what this “power of impeachment” is that has been vested in the House. The founders borrowed this power from British parliamentary practice and state constitutional practice, which does not suggest that the “power of impeachment” was intrinsically limited to incumbent officers. Quite the contrary, in fact: British practice indicates that the “power of impeachment” is the power to lodge formal allegations that an individual engaged in misconduct while holding a governmental office. Impeachments of former officers were both known and explicitly textually allowed. The framers did not discuss the matter one way or another, but they could easily have understood that the “power of impeachment” implicitly includes a jurisdiction over former officials. The text is at best vague and at worst includes former officers. And if the House can impeach them, then the Senate can try them, because the Senate has the power “to try all impeachments.”

Of course, in Trump’s case the impeachment is of a current officer, and so the question is whether the Senate loses jurisdiction if the impeached officer resigns or completes his term before the trial. But if the Senate has the power “to try all impeachments,” then it would seem that it has the power to try all individuals whom the House has impeached and brought to trial regardless of whether that individual still holds public office. The House has frequently chosen to drop its impeachment efforts when an officer resigns; in those cases, it has generally either not voted on an impeachment resolution, not drafted articles of impeachment or not presented articles of impeachment to the Senate. But the fact that the House frequently concludes that its goals have been accomplished by the officer’s resignation does not mean that the House could not have seen the impeachment through all the way to a Senate verdict.

It is true that Article II, Section 4 does specify what happens to specified officers upon conviction in a Senate impeachment trial. This language generally has been read, quite reasonably, to limit the potential scope of the impeachment power. The named offices are the president, vice president and all civil officers of the federal government. This is understood to mean that federal military officers are not subject to the impeachment power, and neither are state government officials nor private individuals. The Constitution could have been written differently, but this extension of the jurisdictional scope of the impeachment power to other individuals would have departed from inherited practice and could be expected to require an explicit textual delegation. According to Section 4, incumbent officers “shall be removed” upon conviction,which is why the Senate does not take a separate vote on whether to remove—instead, removal is automatic and instantaneous upon conviction. Section 4 says nothing about what happens to former officers. And Article I states that the punishment that the Senate can levy after conviction “shall not extend further” than removal and disqualification. So while the Senate has limited punishments it can impose, Article I says nothing about whether Senate trials or punishments are limited to incumbent officers.

What about the purpose of the constitutional impeachment power? Luttig suggests that the sole purpose of the impeachment power is “to remove from office” an individual “before he could further harm the nation from the office he then occupies.”

This phrasing of the claim is, at the very least, awkward. If the whole point of an impeachment is to address the harm that someone can do “from the office he then occupies,” then could a current officer be impeached and tried for his misdeeds in a previous office? Precedent suggests the answer is yes: Circuit Judge Robert W. Archbald was impeached, tried and convicted for corruption in office, and the articles of impeachment included his behavior in his previous position of district court judge. It is true that the House was unable to secure the necessary two-thirds majority for conviction on those articles, and at least some senators expressed doubts “as to his impeachability for offenses committed in an office other than that he held at time of impeachment.” By contrast, the House argued that “it is indeed anomalous if this Congress is powerless to remove a corrupt or unfit Federal judge from office because his corruption or misdemeanor, however vicious or reprehensible, may have occurred during his tenure, in some other judicial office under the Government of the United States prior to his appointment to the particular office from which he is sought to be ousted by impeachment.” Archbald is one of the few federal officers to suffer the penalty of disqualification from future federal office, suggesting that the Senate appreciated the gravity of Archbald’s extended history of misconduct.

If the House had been able to uncover corruption only from Archbald’s days as a district court judge but not from his then-brief tenure as a circuit court judge, it is easy to imagine that two-thirds of the senators would have voted to convict and remove rather than leave a demonstrably corrupt judge on the bench. Even if the Senate had been convinced that such a judge had reformed himself and thus was no longer going to “further harm the nation from the office he then occupies,” impeachment and removal for the past misdeeds might well have been sensible and sufficient.

But set that scenario aside. Is it the case, as Luttig argues, that the sole purpose of impeachment is to remove an officeholder to prevent further harm by that individual in that particular office? Such a framing ignores the additional punishment available to the Senate after conviction—disqualification from future federal office. Removal is wholly sufficient to prevent the “further harm” an incumbent officeholder might do. Disqualification is necessary to ensure that that individual—such as a serially corrupt judge—has no opportunity to do similar harm in the future.

If the Senate could only remove officeholders, then Luttig would have a point. But the Senate can do more than that. Luttig, however, writes off the additional punishment of disqualification as relevant only for those who have been “constitutionally impeached”—that is, those who have been impeached during their time in office and not after it.

But even under Luttig’s own standard, President Trump has been “constitutionally impeached.” He is “at the time of his impeachment” an incumbent president, and the House has now resolved by majority vote to impeach him. Setting aside the question of whether presentation to the Senate is necessary to complete the House’s process of “impeachment,” Trump has by our modern reckoning now been “constitutionally impeached.” At that point, trial, conviction and disqualification would appear to be on the table, even if removal is not.

But removal and disqualification are not the sole purposes of the impeachment clause. The impeachment process is a “grand inquest” in the sense that it is congressional oversight on steroids. The impeachment power gives the first, most democratic branch of the government the ability to scrutinize the actions of individuals in the other branches of government and call them to account for their actions. The House can impeach—that is, lodge allegations—with no fact finding of its own. It is the Senate trial where facts are unavoidably revealed, with the defendant able to challenge those findings and their interpretation. Of course, Congress now routinely uses other tools to engage in oversight of the executive branch, but this historic purpose of the impeachment power is still important.

What’s more, the impeachment process serves as a warning to future officeholders. By clearly and decisively condemning certain actions as intolerable within the American system of government, Congress not only purges the particular malefactor but also attempts to purge the misdeeds from the system and set up a prophylactic to prevent their recurrence. If impeached officials can short-circuit that process of condemnation by resigning—as Secretary of War William Belknap attempted to do in 1876—then the bad actor has it within his power to deprive Congress of the ability to fully make an example of him and send the necessary signals to future officeholders.

And finally, the impeachment process establishes, shores up and preserves important constitutional norms. Impeachments are not the only vehicle for defending constitutional norms, but the impeachment power can be an important and effective vehicle for doing so. There are few constitutional norms so important as respect for the democratic transition of power—and few actions that Congress can take to so emphatically reaffirm that norm as to impeach and convict a political leader who has so flagrantly violated it. Even when an officer is not removed—as Justice Samuel Chase and President Andrew Johnson were not, for example—the House impeachment and the Senate trial were important vehicles for Congress to deliberate on and construct new constitutional understandings. Understanding the impeachment power as focused only on the fate of the political career of a single individual risks erasing this historical experience and setting aside an important tool in the constitutional toolkit.

The claim that the Senate can hold an impeachment trial for a former president is not obviously wrong. It is at most a difficult question, and one that has historical precedent behind it. Nonetheless, Luttig asserts that “only the Supreme Court can answer the question of whether Congress can impeach a president who has left office prior to its attempted impeachment of him.”

Setting aside the apparent confusion of impeachment by the House with a Senate trial on impeachment charges in the Senate, it is not at all evident why “only the Supreme Court” can answer such a question. Traditionally, it was the Senate as the constitutionally designated court of impeachment that has had the final say over constitutional questions regarding the impeachment power. To get to Luttig’s result, the Supreme Court would have to conclude that, even on close constitutional questions relating to the impeachment power, the Senate as the constitutional court of impeachment is an inferior tribunal to the Supreme Court. The court would run the risk of upending the constitutional system by claiming judicial supremacy over one component of the most awesome and delicate authority granted to Congress. As I’ve written elsewhere:

The impeachment power, like any other constitutional power, can be abused. The Senate sits in judgment of whether the House has misused its sole power to impeach federal officers. The people sit in judgment of whether the House and the Senate together have properly wielded this most formidable constitutional weapon. I know no safe depository of the ultimate powers of the society but the people themselves.

Judge Luttig is perhaps the most prominent voice giving support to the view that a former president cannot be put on trial in the Senate for high crimes and misdemeanors. His voice will carry weight with the senators. It might not be enough to persuade a majority of senators to dismiss the case outright, but it might well be enough to prevent the necessary two-thirds majority for conviction—and history suggests that this is a real risk. I do not believe his argument can bear that weight

Keith E. Whittington is the William Nelson Cromwell Professor of Politics at Princeton University. He teaches and writes about American constitutional theory and development, federalism, judicial politics, and the presidency. He is the author most recently of "Speak Freely: Why Universities Must Defend Free Speech."

Jan. 13

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washington post logoWashington Post, Live Updates: House poised to impeach Trump for ‘incitement of insurrection,’ John Wagner, Jan. 13, 2021. Democratic effort to impeach Trump a second time takes dramatic turn. A lone Black officer faced down a mob at the Capitol. Meet Eugene Goodman; Analysis: How experts define the deadly mob attack at the U.S. Capitol; Pelosi calls for Trump’s immediate removal, promotes Cheney’s support for impeachment

The House is poised to impeach President Trump for a second time as it meets Wednesday to consider an article charging him with “incitement of insurrection” for his role in last week’s takeover of the Capitol by a violent pro-Trump mob. At least several Republicans plan to support the resolution.

An hour before the House was scheduled to convene, House Speaker Nancy Pelosi (D-Calif.) went on Twitter to call for Trump’s immediate removal and to promote the position of Rep. Liz Cheney (Wyo.), the No. 3 Republican in the chamber, who supports impeachment.

“Donald Trump’s incitement of a deadly insurrection against the U.S. Capitol is without precedent in our nation’s history and an egregious violation of his oath of office," Pelosi tweeted. “Fulfilling our oath to defend our Constitution requires that we act to remove him from office immediately.”

She attached a statement made by Cheney on Tuesday saying, “The president of the United States summoned this mob, assembled the mob, and lit the flame of attack.”

ny times logoNew York Times, Pence Reached His Limit With Trump. It Wasn’t Pretty, Peter Baker, Maggie Haberman and Annie Karni, Jan. 13, 2021 (print ed.). After four years of tongue-biting silence, Vice President Mike Pence would not yield to President Trump’s intense pressure to overturn the election.

For Vice President Mike Pence, the moment of truth had arrived. After three years and 11 months of navigating the treacherous waters of President Trump’s ego, after all the tongue-biting, pride-swallowing moments where he employed strategic silence or florid flattery to stay in his boss’s good graces, there he was being cursed by the president.

Mr. Trump was enraged that Mr. Pence was refusing to try to overturn the election. In a series of meetings, the president had pressed relentlessly, alternately cajoling and browbeating him. Finally, just before Mr. Pence headed to the Capitol to oversee the electoral vote count last Wednesday, Mr. Trump called the vice president’s residence to push one last time.

“You can either go down in history as a patriot,” Mr. Trump told him, according to two people briefed on the conversation, “or you can go down in history as a pussy.”

The blowup between the nation’s two highest elected officials then played out in dramatic fashion as the president publicly excoriated the vice president at an incendiary rally and sent agitated supporters to the Capitol where they stormed the building — some of them chanting “Hang Mike Pence.”

ny times logoNew York Times, Pentagon to Arm National Guard Troops for Inauguration, Helene Cooper and Adam Goldman, Jan. 13, 2021 (print ed.).  About 15,000 members are expected to be deployed in Washington, D.C. Those stationed around the Capitol will carry weapons, officials said.

National Guard troops who are flooding into Washington to secure the Capitol for Inauguration Day will be armed, the Army secretary, Ryan McCarthy, has decided, Defense Department officials said Tuesday.

The armed troops will be responsible for security around the Capitol building complex, the officials said.

As up to 15,000 troops continued to arrive in Washington from all over the country, Defense Department officials had been weighing whether to deploy them with arms. Mr. McCarthy has decided that at the very least those around the Capitol building will carry weapons, said the officials, who confirmed the decision on the condition of anonymity.

Mr. McCarthy’s decision came after a meeting with Speaker Nancy Pelosi, Democrat of California. Ms. Pelosi, according to congressional staff members, demanded that the Pentagon take a more muscular posture after a mob, egged on by President Trump last week, breached the Capitol.

Pentagon officials say they are deeply worried about protests that are planned for the inauguration of President-elect Joseph R. Biden Jr. next week. About 16 groups — some of them saying they will be armed and most of them made up of hard-line supporters of Mr. Trump — have registered to stage protests in Washington, officials said.

One Defense Department official said law enforcement agencies are planning for a range of outcomes, including a worse-case scenario in which people with firearms try to attack dignitaries, “suicide-type aircraft” try to fly into the capital’s restricted airspace and even remote-controlled drones that could be used to attack the crowd.

ny times logoNew York Times, House Votes 223-205 to Call on Pence to Strip Trump of Powers Rejection All but Ensures Impeachment Vote, Staff and wire reports, Jan. 13, 2021 (print ed.). Democrats proceeded with the resolution even after Vice President Mike Pence ruled out the option, and they warned of an impeachment vote on Wednesday. Five House Republicans said they would vote for impeachment. There had “never been a greater betrayal,” Liz Cheney said. Catch up on political news.

Lawmakers adopted a resolution that would compel Vice President Mike Pence to invoke the 25th Amendment after President Trump incited a mob attack on the Capitol last week. In a letter to Speaker Nancy Pelosi earlier in the evening, Mr. Pence rejected the effort.

ny times logoNew York Times, These are the Republicans who said they support impeaching President Trump, John Eligon, Jan. 13, 2021. As the House prepared to move forward with an impeachment proceeding, a small number of Republicans said they support the effort. The vote is set to come exactly one week after the United States Capitol was breached by an angry mob of Trump loyalists.

In 2019, not a single Republican voted in favor of impeachment. House Republican leaders have said they would not formally lobby members of the party against voting to impeach the president this time, and these are the Republicans who have said that they intend to vote for impeachment.

Representative John Katko. Representative John Katko of New York was the first Republican to publicly announce that he would back the impeachment proceedings. A former federal prosecutor, Mr. Katko said he looked at the facts of the siege, which began as lawmakers were working to certify the presidential election results.

“It cannot be ignored that President Trump encouraged this insurrection — both on social media ahead of Jan. 6, and in his speech that day,” Mr. Katko said in a statement. “By deliberately promoting baseless theories suggesting the election was somehow stolen, the president created a combustible environment of misinformation, disenfranchisement, and division. When this manifested in violent acts on Jan. 6, he refused to promptly and forcefully call it off, putting countless lives in danger.”

washington post logoWashington Post, New York City terminates its contracts with Trump’s company, David A. Fahrenthold, Jan. 13, 2021. New York City is terminating its contracts with President Trump’s company to run a carousel, two ice rinks and a golf course in city parks, Mayor Bill de Blasio (D) said Wednesday — calling it a reaction to Trump’s encouragement of a mob that ransacked the U.S. Capitol.

“The President incited a rebellion against the United States government that killed five people and threatened to derail the constitutional transfer of power,” de Blasio said in a written statement. “The City of New York will not be associated with those unforgivable acts in any shape, way or form.”

That decision — which will cut off the Trump Organization from businesses that bring in $17 million per year in revenue — makes New York the latest business partner to cut ties with Trump’s company. Trump still owns his company from the White House, and his actions as president now seem to have made it a pariah, cut off by even longtime partners.

Since Wednesday’s riot at the Capitol, the company has lost two of its banks, its e-commerce vendor and two of its real-estate brokers. The company also lost its chance to host the prestigious PGA Championship golf tournament in 2022, and lost its hopes of hosting another major golf tournament in Scotland.

Jan. 12

ny times logoNew York Times, Supreme Court Revives Abortion-Pill Restriction, Adam Liptak, Jan. 12, 2021. In the Supreme Court’s first ruling on abortion since the arrival of Justice Amy Coney Barrett, the court on Tuesday reinstated a federal requirement that women seeking to end their pregnancies using medications pick up a pill in person from a hospital or medical office.

The court’s brief order was unsigned, and the three more liberal justices dissented. The only member of the majority to offer an explanation was Chief Justice John G. Roberts Jr., who said the ruling was a limited one that deferred to the views of experts.

The question, he wrote, was not whether the requirement imposed “an undue burden on a woman’s right to an abortion as a general matter.” Instead, he wrote, it was whether a federal judge should have second-guessed the Food and Drug Administration’s determination “because of the court’s own evaluation of the impact of the Covid-19 pandemic.”

“Here as in related contexts concerning government responses to the pandemic,” the chief justice wrote, quoting an earlier opinion, “my view is that courts owe significant deference to the politically accountable entities with the ‘background, competence and expertise to assess public health.’”

In dissent, Justice Sonia Sotomayor, joined by Justice Elena Kagan, said the majority was grievously wrong.

“This country’s laws have long singled out abortions for more onerous treatment than other medical procedures that carry similar or greater risks,” Justice Sotomayor wrote. “Like many of those laws, maintaining the F.D.A.’s in-person requirements” for picking up the drug “during the pandemic not only treats abortion exceptionally, it imposes an unnecessary, irrational and unjustifiable undue burden on women seeking to exercise their right to choose.”

She suggested that the next administration should revisit the issue.

“One can only hope that the government will reconsider and exhibit greater care and empathy for women seeking some measure of control over their health and reproductive lives in these unsettling times,” Justice Sotomayor wrote.

Judge Theodore D. Chuang, of the Federal District Court in Maryland, had blocked the requirement in light of the coronavirus pandemic, saying that a needless trip to a medical facility during a health crisis very likely imposed an undue burden on the constitutional right to abortion.

The case concerned a restriction on medication abortions, which are permitted in the first 10 weeks of pregnancy. About 60 percent of abortions performed in those weeks use two drugs rather than surgery.

The American College of Obstetricians and Gynecologists and other groups, all represented by the American Civil Liberties Union, sued to suspend the requirement that women make a trip to obtain the first drug in light of the pandemic. There was no good reason, the groups said, to require a visit when the drug could be delivered or mailed.

Jan. 9

djt nancy pelosi

washington post logoWashington Post, Trump faces mounting demands to leave office or face impeachment, Seung Min Kim, Josh Dawsey, Mike DeBonis and Tom Hamburger, Jan. 9, 2021 (print ed.). President Trump faces mounting pressure for his immediate ouster after he incited Wednesday’s violent siege at the Capitol — an increasingly louder drumbeat chastising his actions that threatens not only to prematurely end his waning tenure but to put him in legal jeopardy once he leaves office.

democratic donkey logoIn Congress, a growing cadre of House Democrats is pushing to rapidly impeach Trump a second time before he is scheduled to leave office on Jan. 20. They are preparing to introduce articles charging him with inciting an insurrection and having “gravely endangered the security of the United States” and its institutions.

In public, Trump has come as close as he is likely to get to admitting he lost the election, acknowledging that there will be a transfer of power and confirming Friday that he will not attend President-elect Joe Biden’s inauguration. But in private, the president has tried to rationalize his actions, saying he wanted only to encourage a large protest that would garner news coverage and rattle members of Congress — not for his supporters to actually storm the Capitol in the worst breach of its security since the War of 1812.

washington post logoWashington Post, Biden stimulus plan includes checks, jobless aid, Jeff Stein, Erica Werner and Mike DeBonis, Jan. 9, 2021 (print ed.). President-elect Joe Biden said Friday he is assembling a multitrillion-dollar relief package that would boost stimulus payments for Americans to $2,000, extend unemployment insurance and send billions of dollars in aid to city and state governments, moving swiftly to address the nation’s deteriorating economic condition and the rampaging pandemic.

joe biden twitterThe package will also include billions of dollars to improve vaccine distribution and tens of millions of dollars for schools, as well as rent forbearance and assistance to small businesses, especially those in low-income communities, Biden said at a news conference in Wilmington, Del.

“We need to provide more immediate relief for families and businesses now,” Biden said.

“The price tag will be high,” he said, adding, “The overwhelming consensus among leading economists left, right and center is that in order to keep the economy from collapsing this year, getting much, much worse, we should be investing significant amounts of money right now.”

Biden said he would lay out the package in more detail next week. It would build on some $4 trillion in economic assistance Congress has already devoted to battling the devastating pandemic, including a $900 billion package President Trump signed into law last month.

ny times logoNew York Times, Live U.S. Political Update: Democrats Lay Groundwork for Impeaching Trump Again, Staff Reports, Jan. 9, 2021. ‘I Want Him Out’: Murkowski Is First G.O.P. Senator to Call for Removal.

House Democrats intend to introduce an article of impeachment on Monday charging President Trump with “willfully inciting violence against the government of the United States.” President-elect Joe Biden prioritizes the economy, saying there is a “a dire, dire need to act now.”

  • Furious Democrats, backed by a handful of Republicans, pressured President Trump to leave office after a violent mob attack on the Capitol this week.
  • Senator Lisa Murkowski suggested she may leave the Republican Party if it continued to align itself with Mr. Trump.
  • But the president struck a defiant tone. Behind closed doors, he made clear that he would not resign. Here’s the latest from Washington.
  • Biden pledges action to address the economy and the pandemic.
  • Pelosi asked the Pentagon about preventing Trump from using the nuclear codes.
  • A judge has blocked Trump’s sweeping restrictions on asylum applications.
  • Trump's suspension from Twitter caps an online revolt against him.

washington post logoWashington Post, McConnell memo outlines how Senate would conduct second trial for Trump if House impeaches, Seung Min Kim, Jan. 9, 2021 (print ed.). Based on the Senate schedule and timelines, the proceedings would occur after the president leaves office.

Palmer Report, Opinion: Donald Trump held Senators hostage in the Capitol while calling them and demanding the election be overturned, Bill Palmer, right, Jan. 9, bill palmer2021 (12:03 a.m.). We all saw Donald Trump incite the domestic terrorist attack on the United States Capitol Building. And it’s since been revealed that Trump refused to sign off on the mayor’s request that the DC National Guard be sent in to retake the Capitol. But now things have taken an even darker turn.

bill palmer report logo headerCNN is reporting that while the Capitol was under siege by Trump-terrorists, and while Trump was refusing to sign off on sending the National Guard, he called at least one Senator on the phone and demanded that the election results be overturned. CNN is reporting that Trump tried to call Republican Senator Tommy Tuberville and instead reached Republican Senator Mike Lee, making his demand.

This means that if the timeline of events as we understand it is indeed accurate, Donald Trump was holding members of Congress hostage in the basement while calling them and making demands. This is way beyond merely inciting the attack, or even refusing to do anything to put it down. This is some kind of ransom situation. Trump allowed the Vice President, every Senator, and every House member to remain held hostage and in danger of violence, while he made demands. This is one of the ugliest crimes in American history – and Trump will never get out of prison.

washington post logoWashington Post, Twitter permanently suspends Trump’s account, Nitasha Tiku and Tony Romm, Jan. 9, 2021 (print ed.). “Despite our efforts to serve the public conversation, as Trump’s megaphone, we helped fuel the deadly events of January 6th,” the employees wrote.

Hundreds of Twitter employees demanded in a letter written this week that the company’s leaders permanently suspend Donald Trump’s Twitter account because of his actions surrounding the storming of the U.S. Capitol Tuesday, calling the company’s response insufficient.

twitter bird CustomIn an internal letter addressed to chief executive Jack Dorsey and his top executives viewed by The Washington Post, roughly 350 Twitter employees asked for a clear account of the company’s decision-making process regarding the President’s tweets the day that a pro-Trump mob breached the U.S. Capitol. Employees also requested an investigation into the past several years of corporate actions that led to Twitter’s role in the insurrection.

donald trump twitter“Despite our efforts to serve the public conversation, as Trump’s megaphone, we helped fuel the deadly events of January 6th,” the employees wrote. “We request an investigation into how our public policy decisions led to the amplification of serious anti-democratic threats. We must learn from our mistakes in order to avoid causing future harm.”

“We play an unprecedented role in civil society and the world’s eyes are upon us. Our decisions this week will cement our place in history, for better or worse,” the added.

In a statement, Twitter spokesperson Brandon Borrman wrote, “Twitter encourages an open dialogue between our leadership and employees, and we welcome our employees expressing their thoughts and concerns in whichever manner feels right to them.”

Twitter on Wednesday initially labeled Trump’s tweets about the election as disputed. But a subsequent video from the president — calling for calm while continuing to peddle disinformation — prompted the company to step up its enforcement actions.

Twitter ultimately locked the president out of his account for the first time, requiring him to delete his offending tweets — then wait 12 hours — in order to regain access. That came Thursday morning, and Trump issued his first public comments on the site later that night. Twitter said it would suspend Trump permanently if he continues to break its rules, putting users at risk.

washington post logoWashington Post, Trump pressured Ga. elections investigator in a separate call that experts say could amount to obstruction, Amy Gardner, Jan. 9, 2021
More than a week before he urged the Georgia secretary of state to overturn the election results, the president urged the state’s chief elections fraud investigator to “find the fraud.

 ali alexander resized greg palast

"Stop the Steal" Republican operative Ali Alexander, top right, is shown with two others in revelations excerpted below by investigative reporter Greg Palast.

GregPalast.com, Investigation: Why did the Georgia GOP Team up with a riot instigator? Greg Palast, Jan. 8-9, 2021. “WE’LL LIGHT THE WHOLE SH*T ON FIRE!”

The star of the GOP’s get-out-the-vote door-knocking program in the Georgia Senate run-off, standing next to Alex Jones, was blasting his threat through a georgia map 2megaphone in front of the Governor’s home. “We’ll light the whole sh*t on fire!”GOP Operative: “We’ll light the whole sh*t on fire!”

Ali Alexander’s threat in December would become all too real when he repeated his performance on January 6 in Washington, DC.

In the U.S. Capitol that day, looking over the scene of screams, tear gas, and mayhem, Alexander said, “I warned you this would happen.”

Yes, he did. Nevertheless, the Georgia Republican Party’s Metro Atlanta Field Director Kevin Mason was more than happy to team up with Alexander. With his huge reach within the Alt-Right, Alexander could bring in a swarm of volunteers for the door-knocking campaign they desperately needed to hold back the looming Democratic victory in the US Senate run-offs.

republican elephant logoThe far-right celebrity was the magnet to draw scores of young enthusiasts to a January 3 training session at the DoubleTree Hotel in Roswell, an Atlanta suburb. The Palast Investigative Fund’s photojournalist, Zach D. Roberts, a specialist in white-fringe violence who’d been tracking Alexander’s pitch for mayhem across the nation, signed up.

Roberts, who joined up through Alexander’s website, StopTheSteal.US, was quite surprised to receive instructions, not from the right-wing group, but from Daniel George of the National Republican Senate Committee.

Why would the GOP team up with Alexander, a leader of the Stop the Steal extremists, especially after his well-broadcast warning of violence? The threat was not out of character. There are widely circulated films of Alexander with Proud Boys founder Gavin McInnes. And there is a video chat with Alexander yucking it up with a right-wing jokester holding up a giant flag with a Nazi Swastika flag.

That is, if “Alexander” is his real name. He adopted it after his reported conviction for a felony crime under the name “Ali Akbar.” [See 2012 column excerpted immediately below.]

Alexander is a shapeshifter, sometimes the eye-swiveling crazy, sometimes the dapper guest for Alt-Right podcasts. We cannot link to his most incendiary outlets such as WildProtest.com because they’ve been taken down for inciting violence.

In Georgia, with Alex Jones and Nick Fuentes, a known white nationalist, Alexander hid nothing of his hopes for Washington on January 6. “Either they take Trump, prove that they won or they’re not going to hand them back the country again. We’ll light the whole sh*t on fire!”

To fire up its base, the GOP is apparently willing to cavort with the violence-threatening fringe. The Grand Old Party dismissed Alexander’s warnings. And they also forgot John Kennedy’s warning that “Those who ride the tail of the tiger soon end up inside.”

greg palast logo

Greg Palast (Rolling Stone, Guardian, BBC), shown above, is the author of The New York Times bestsellers, "The Best Democracy Money Can Buy" and "Billionaires & Ballot Bandits," out as major motion non-fiction movie: "The Best Democracy Money Can Buy: The Case of the Stolen Election," available on Amazon and Amazon Prime.

 ali akbar mugshot

Crooks and Liars, The National Bloggers Club And Their Super PAC Friends, Matt Osborne, Co-authored with Alex Brant-Zawadzki and Bill Schmalfeldt, Research assistance by Melissa Brewer, Sept. 12, 2012. Ali Akbar, now President of the National Bloggers Club, is one of the conservative blogosphere's most infamous characters. He began his campaign of notoriety with a crime spree in 2006, blazing a six-year trail of fraud. That's him up there, in the mug shots.

Palmer Report, Opinion: Donald Trump just screwed himself even worse than you think, Bill Palmer, Jan. 9, 2021. If Donald Trump had behaved during the transition period, he probably could have convinced the judge in his New York criminal trial to let him serve house arrest at Mar-a-Lago, perhaps even let him out on bail completely, while awaiting trial. But now that he’s a documented domestic terrorist threat, the odds of his pretrial incarceration just went up.

bill palmer report logo headerI’d like to thank Donald Trump for doing more to destroy Trumpism this week than I ever could have done on my own. I’d like believe i’ve certainly put a dent in Trump these past four years, but he just took a sledgehammer to his own cause.

Donald Trump’s subreddit has just been banned from Reddit. Do you know how badly you have to screw up in life to get banned from Reddit? YouTube has permanently banned Steve Bannon.

Palmer Report, Opinion: Donald Trump just got kicked off Twitter for the THIRD time tonight, Bill Palmer, Jan. 8, 2021. Shortly after Donald Trump got permanently banned from Twitter tonight, he tried rogue tweeting from the @POTUS account, which is supposed to be for government use. That only lasted about thirty seconds before Twitter cracked down, deleting his rant. Now it’s happened again on another account.

bill palmer report logo headerTwitter has now permanently suspended Donald Trump’s official campaign Twitter account @TeamTrump after he and/or his handlers used it to post the same rant that Twitter had just removed from the @POTUS account. That’s right, Trump has now been kicked off Twitter for the third time tonight.

At this rate Donald Trump’s next move will be to create a new account called “Ronald Trump” and hope that Twitter doesn’t figure out it’s also him. Trump is the dumbest villain of all time, and he’s getting dumber as the night goes on.

washington post logoWashington Post, Voting machine firm Dominion sues pro-Trump lawyer Sidney Powell, seeking more than $1.3 billion in defamation claim, Emma Brown, Jan. 9, 2021 (print ed.). Dominion Voting Systems on Friday filed a defamation lawsuit against lawyer Sidney Powell, demanding more than $1.3 billion in damages for havoc it says Powell has caused by spreading “wild” and “demonstrably false” allegations, including that Dominion played a central role in a fantastical scheme to steal the 2020 election from President Trump.

For weeks, Powell has claimed that Dominion was established with communist money in Venezuela to enable ballot-stuffing and other vote manipulation, and that those abilities were harnessed to rig the election for former vice president Joe Biden.

dominion voting systemsIn a 124-page complaint filed in the U.S. District Court for the District of Columbia, Dominion said its reputation and resale value have been deeply damaged by a “viral disinformation campaign” that Powell mounted “to financially enrich herself, to raise her public profile, and to ingratiate herself to Donald Trump.” The defendants named in the lawsuit include Powell, her law firm and Defending the Republic, the organization she set up to solicit donations to support her election-related litigation.

In an interview, Dominion CEO John Poulos said the lawsuit aims to clear his company’s name through a full airing of the facts about the 2020 election.

lin wood gage skidmorePoulos said he would like the case to go to trial rather than settle. “We feel that it’s important for the entire electoral process,” he said. “The allegations, I know they were lobbed against us . . . but the impacts go so far beyond us.”

Powell did not immediately respond to a request for comment. L. Lin Wood, left, a lawyer who has worked alongside Powell on post-election lawsuits and who says he is representating her in connection to defamation matters, called the lawsuit an attempt “to censor speech or try to intimidate people from telling the truth.”


Deaths From Pro-Trump Riot

brian sicknick

ny times logoNew York Times, He Dreamed of Being a Police Officer, Then Was Killed by a Pro-Trump Mob, Zolan Kanno-Youngs and Tracey Tully, Jan. 9, 2021 (print ed.). The death of Brian Sicknick, above, a veteran and experienced officer, amplified the tragedy of the riots and undermined President Trump’s pro-police claims.

Brian Sicknick followed his Air National Guard unit to Saudi Arabia, Kyrgyzstan and a military base in his home state of New Jersey, all in the hopes of one day wearing a police uniform. It was a wish fulfilled more than 10 years ago when he joined the police department tasked with protecting the U.S. Capitol.

Then on Wednesday, pro-Trump rioters attacked that citadel of democracy, overpowered Mr. Sicknick, 42, and struck him in the head with a fire extinguisher, according to two law enforcement officials. With a bloody gash in his head, Mr. Sicknick was rushed to the hospital and placed on life support. He died on Thursday evening.

“Brian is a hero,” his brother Ken Sicknick said. “That is what we would like people to remember.”

The death of Officer Sicknick amplified the nation’s grief in the wake of the shocking attack on the Capitol by rioters, inflamed by President Trump’s calls to stop Congress from counting electoral votes and officially declaring Joseph R. Biden Jr. the winner of November’s election. One of those rioters, Ashli Babbitt, also died in the melee, shot by a police officer as she tried to push her way into the heavily protected Speaker’s Lobby, just outside the House chamber.

In all, five have died since the riot began, though three of them were not killed by hostile action. But the beating of an officer brought waves of condolences from lawmakers in both parties still reeling from the event. It also exposed one of the many contradictions of the Trump presidency in his final weeks in the Oval Office. A president who campaigned as a “law and order” candidate, boasting about his relationships with police unions and demonizing those protesting racist policing, incited a riot that led to the death of a member of the law enforcement community.

“It’s a bunch of” nonsense, William J. Bratton, the former New York City police commissioner, said of Mr. Trump’s pledges to the police, though he used a stronger word. “It was a misappropriation of the term ‘law and order.’”

Justice Department officials said during a news conference on Friday that they were investigating the circumstances of Mr. Sicknick’s death, but would not say whether it was a federal murder investigation. One official said that “felony murder is always in play,” but that investigators needed to complete their work.

washington post logoWashington Post, U.S. Capitol police officer dies after engaging rioters, Peter Hermann, Jan. 9, 2021 (print ed.). Officer Brian D. Sicknick, below right, brian sicknickcollapsed after returning to his division office and was rushed to a hospital, where officials said he died Thursday night.

On Friday, House Speaker Nancy Pelosi (D-Calif.) ordered flags at the U.S. Capitol to be flown at half-staff.

“The violent and deadly act of insurrection targeting the Capitol, our temple of American Democracy, and its workers was a profound tragedy and stain on our nation’s history. But because of the heroism of our first responders and the determination of the Congress, we were not, and we will never be, diverted from our duty to the Constitution and the American people,” Pelosi said in a statement.

capitol ties

An as-yet unidentified rioter, center, heavily disguised, invades the U.S. Capitol as part of the pro-Trump "Stop the Steal" protest carrying plastic "ties," which are normally used by law enforcers to bind the wrists of suspects but which are used also by terrorists to subdue hostage victims.

washington post logoWashington Post, FBI focuses on whether some rioters intended to harm lawmakers or take hostages, Devlin Barrett, Spencer S. Hsu and Matt Zapotosky, Jan. 9, 2021 (print ed.). FBI agents are trying to determine whether some who stormed the U.S. Capitol on Wednesday intended to do more than cause havoc and disrupt the certification of President-elect Joe Biden’s victory, and they are sifting through evidence to see whether anyone wanted to kill or capture lawmakers or their staffers, according to people familiar with the investigation.

Dozens have been arrested, and Friday, officials announced charges against an Arkansas man photographed in House Speaker Nancy Pelosi’s office chair with a foot on her desk. But investigators also are working to determine the motivations and larger goals, if any, of those who had weapons or other gear suggesting they planned to do physical harm.

FBI logoSome rioters, for instance, were photographed carrying zip ties, a plastic version of handcuffs, and one man was arrested allegedly carrying a pistol on the Capitol grounds.

“We’re not looking at this as a grand conspiracy, but we are interested in learning what people would do with things like zip ties,” said a law enforcement official, who, like others, spoke on the condition of anonymity to discuss the investigation.

No photos or videos that have surfaced so far suggest any of the individuals with zip ties tried to take hostages. One possibility being pursued by investigators is that some who burst into the building may be current or former law enforcement officers, or current and former military personnel, people familiar with the investigation said.

Some who participated in the larger pro-Trump protest this week do work in law enforcement.

Chris West, the sheriff of Canadian County in Oklahoma, for example, held a news conference Friday to dispute that he was the person pictured on social media who claimed he was inside the Capitol, according to a Fox affiliate there. West told reporters that though he did come to rally in D.C. as an “individual” and Trump supporter, he never set foot in the Capitol building and thought he was walking from Liberty Square in the direction of the Capitol when the violence began.

A sheriff in Bexar County, Tex., meanwhile, told reporters that one of his lieutenants ­— Roxanne Mathai ­— was under investigation after her Facebook posts appeared to show she was at the Capitol, according to a local ABC station. Mathai has not been charged with any wrongdoing.

rnc logoMany of the initial charges have been for unlawful entry, but authorities also found suspected pipe bombs outside the headquarters of the Democratic National Committee and the Republican National Committee, and they arrested the owner of a truck they said was spotted nearby with 11 molotov cocktails inside. The FBI is still searching for the person who left the suspected pipe bombs.

Adding to the investigation’s urgency, Twitter on Friday noted that plans for future armed protests have begun circulating online, including a proposed second attack on the U.S. Capitol and assaults on state government buildings Jan. 17.

Officials cautioned that there may be a variety of motives among those who broke into Congress, and they said that a key part of their investigation is determining whether any individuals or groups had planned in advance or were coordinating in the moment to commit violence against individual politicians. Others may simply have been caught up in the moment and committed rash, unplanned crimes, officials said.

Jan. 7

washington post logoWashington Post, Biden to nominate Merrick Garland, Obama’s last Supreme Court nominee, for attorney general, Matt Zapotosky, Devlin Barrett and Ann E. Marimow, Jan. 7, 2021 (print ed.). President-elect Joe Biden plans to nominate Merrick B. Garland, a Democratic casualty of the bitter partisan divide in Washington over court nominees, to become the next attorney general, according to people familiar with the decision.

merrick garlandGarland, 68, right, serves as a judge on the federal appeals court in the District. He is best known for being nominated to the Supreme Court in 2016 by President Barack Obama — a nomination that went nowhere because Senate Republicans refused to give him a hearing. The opening on the high court was eventually filled the following year by President Trump’s choice, Neil M. Gorsuch.

Biden’s transition team did not immediately respond to a request for comment. The intended nomination was first reported Wednesday by Politico.

Who Joe Biden is picking to fill his White House and Cabinet

Justice Department log circularMany Democrats still think of Garland as a living example of Republican double-standards when it comes to the courts and the law, though some Biden advisers have come to view him as well-suited to restore norms of nonpolitical decision-making at the Justice Department, given his track record as a judge and a former senior official at the department, according to people familiar with the decision.

To some in Biden’s circle, Garland seems like the best choice to restore the Justice Department’s credibility, which eroded under Trump. He enjoys a reputation as a unifying, moderating force on the appeals court, and some Democratic advisers said they view his selection as a signal to congressional Republicans that the department will operate in an evenhanded fashion in the Biden administration.

Karen L. Dunn, a former prosecutor who once clerked for Garland, called him “the perfect choice for this job. He will restore independence and integrity to the Justice Department, be the people’s lawyer, not the president’s lawyer, and will come in with the respect of the career public servant who advance the cause of justice every day.”

kristen clarkeLawyers’ Committee for Civil Rights Under Law, Kristen Clarke’s Nomination as Assistant Attorney General for Civil Rights, Staff report, Jan. 7, 2021. President-elect Joe Biden announced his intent to nominate Kristen Clarke, right, the president and executive director of the Lawyers’ Committee for Civil Rights Under Law to be the nation’s nineteenth Assistant Attorney General for Civil Rights.

The Civil Rights Division of the U.S. Department of Justice enforces the nation’s civil rights laws while ensuring equal justice under law for all Americans. The President-elect will announce the appointment, along with the appointment of his choice for Attorney General at an event in Delaware later today.

Clarke’s career and leadership have proved that she is committed to seeking truth and justice for all Americans through our system of laws. She formerly served as the head of the Civil Rights Bureau for the New York State Attorney General’s Office, spent several years at the NAACP Legal Defense and Educational Fund and worked at the U.S. Department of Justice’s Civil Rights Division.

Jan. 2

julian assange stella morris son gabriel righ max belmarsh prison irish examiner com

Stella Moris and son Gabriel, right, and Max leave Belmarsh prison after visiting her partner and their father, Julian Assange. His two children could lose their father for the rest of their lives [Source: irishexaminer.com].

Covert Action Magazine, Opinion: Upcoming Ruling in Assange Trial Threatens More Than Just Freedom of the Press, Steve Brown, Jan. 2, 2021. Although important legal principles are at stake in the extradition trial of Julian Assange, below right in a file photo, for which a ruling will be handed down on January 4, it should not be forgotten that there are important human issues at stake as well.

One such issue is Assange’s health, which has progressively worsened under what seems to be cruel and even sadistic maltreatment by the British government, including the refusal of appropriate medical care and confining him in his cell for 23 hours a day, seven days a week.

The other is that, if the Judge’s ruling is adverse, Julian’s two children may never see their father again.

julian assange facts wikileaks CustomMany stories have been written about the legal issues in Julian’s case, and the chilling effect that his extradition to the U.S.  — where he will almost certainly be imprisoned for life — would have on journalists around the world who seek to expose the lies and crimes committed by their own governments.

Most of those stories present Julian, primarily, as a symbol, a hero to his principles, and an ominous example in how far tyrannical governments and corrupt politicians will go to keep their citizens ignorant and submissive.

But Julian is more than a symbol. He is also a father, a husband-to-be (even if he may have to be married in prison) and, most importantly, a human being —o ne who, as the world watches in horror and shame, is being subjected to calculated assaults on his physical and mental health in hopes that he will quickly die and spare the British and American governments the embarrassment of having to deal with him.

For nearly three years Assange and his partner, Stella Moris, had successfully kept their personal relationship and the existence of their two children a secret. Moris only revealed it (on April 11) because “Julian’s poor physical health puts him at serious risk, like many other vulnerable people, and I don’t believe he will survive infection with coronavirus” — which had been spreading rapidly through the British prison system, especially at Belmarsh, the high security prison in which Assange is being held.



Dec. 31 michael flynn djt

President Trump pardoned former National Security Advisor and 2016 campaign advisor Michael Flynn, left, this fall from multiple felonies after Flynn pleaded guilty.

Howe on the Court via SCOTUSblog, Analysis: The Supreme Court and the president’s pardon power, Amy Howe, below right, Dec. 31, 2020. The Constitution gives the amy howepresident the power “to grant Reprieves and Pardons for Offenses against the United States, except in Cases of impeachment.”

In the days before Christmas, President Donald Trump used this power to pardon or commute the sentences of over 40 people, including Paul Manafort, Trump’s former campaign manager; Charles Kushner, the father of Trump’s son-in-law and adviser, Jared Kushner; Roger Stone, who was convicted by Special Counsel Robert Mueller of obstruction of justice and other crimes; and four men who were convicted of killing Iraqi civilians while working as contractors for the private security firm Blackwater.

With just under three weeks remaining in Trump’s term, there could be more pardons on the horizon – and Trump has asserted that he has the “absolute right” to pardon himself.

The Supreme Court has made clear that, subject to the exception for impeachment, the president’s power to grant pardons is “unlimited,” with virtually no oversight or limiting role for Congress. In Ex parte Garland, which involved President Andrew Johnson’s pardon of a lawyer who had served in the legislature of the Confederacy, the court indicated that the president’s pardon power covers all federal offenses. The president can issue a pardon at any point after a crime is committed and before, during or after criminal proceedings have taken place.

The president cannot, however, pardon someone for future crimes. A pardon covers both the offender’s guilt for the crime and the sentence for that crime. When there is a full pardon, the Supreme Court has explained, it is as if the defendant never committed the crime.

SCOTUSblog, The lives they lived and the court they shaped: Remembering those we lost in 2020, James Romoser, Dec. 31, 2020. The lead plaintiffs in three landmark civil rights cases. A government lawyer who argued at the Supreme Court more than anyone else in the 20th century. A chief justice’s right-hand man. A trailblazing feminist who became a transformative justice.

These were among the people we lost in a year that was so defined by death. As the year comes to a close, SCOTUSblog looks back at some of the individuals who died in 2020 after living lives that brought them – at different times and for different reasons – to the Supreme Court of the United States.

Some worked behind the scenes. A few attained modest fame. One became “notorious.” All left an imprint on the court or the law.

  • Bruce Carver Boynton
  • ruth bader ginsburg scotusMark Cannon
  • Bernard Sol Cohen
  • Drew Saunders Days III
  • Ruth Bader Ginsburg, right
  • Timothy Andrew O’Brien
  • Aimee Stephens
  • Alexander Louis Stevas
  • Darius Leander Swann
  • Lawrence Gerald Wallace
  • Ralph Karl Winter, Jr.

Howe on the Court via SCOTUSblog, Analysis: In year-end report, Roberts praises “unsung heroes” of the pandemic, Amy Howe, right, Dec. 31, 2020. Chief amy howeJustice John Roberts issued his annual year-end report on Thursday, and the theme – perhaps unsurprisingly – was the coronavirus pandemic. Roberts paid tribute to everyone in the federal court system and the federal government who allowed the courts to carry out their work safely, but he singled out what he called the “‘first to fight’ in the judicial family – the trial courts and their staff.”

Roberts began his report, as he often does, with a historical reference: the outbreak of influenza that the first chief justice, John Jay, encountered when he traveled to New York to hear cases in the lower courts. (In a trademark display of Roberts’ wry humor, he noted that two justices who skipped the Supreme Court’s first session received a more distant assignment, requiring 1,800 miles of travel – “providing,” he wrote, “yet another lesson in what happens when you miss a meeting.”)

john roberts oRoberts, left, discussed the Supreme Court’s response to the pandemic only briefly, noting that the court held “oral argument by teleconference for the first time” and managed “to stay current in our work.” The federal courts of appeals, Roberts continued, “have responded with similar considered flexibility,” as have the state courts, “who are responsible for the vast bulk of judicial proceedings.”

But it was the federal trial courts that “faced the greatest challenge,” Roberts emphasized, and – in his view – they responded. Roberts cited the example of bankruptcy courts, with their often-complicated cases that “can involve 100 participating attorneys.” “Much of their work is not glamorous,” Roberts wrote, “but it is essential, and it got done.” Jury trials have resumed, Roberts noted, after modifications to courtrooms to make them safer for everyone involved. Roberts was pleased that members of the public continue to report for jury duty despite the pandemic.

Roberts lauded the judicial branch’s creativity in responding to other aspects of the pandemic – holding, for example, drive-through and outdoor naturalization ceremonies.

Roberts concluded by making clear that he did not want “to minimize the hardships and suffering caused by the pandemic. Like others throughout the country, judiciary employees have contended with illness and loss. My thoughts,” Roberts said, “are with them.”

Roberts’ message made no mention of the other topic that has dominated the headlines in 2020: the presidential election. Although Roberts is a lifelong Republican, both he and the court have been frequent targets of President Donald Trump’s ire. Roberts began 2020 presiding over Trump’s impeachment trial, and he ended the year being vilified on Twitter by Trump allies hurling wild attacks. Even if Roberts didn’t say so, he is no doubt looking forward to a new and quieter year.

 joe biden

ny times logoNew York Times, Opinion: My Joe Biden Story, Linda Greenhouse, right, Dec. 31, 2020 (print ed.). In a career as a journalist, I had never encountered a linda greenhouse thumb Custompolitician like him.

As Ben Smith, the media columnist for The Times, suggested a few weeks ago, pretty much every journalist who passed through Washington, D.C., during the past half century knows President-elect Joe Biden and has a story to tell. I’d like to end this strange year, and welcome the new one and the new president, by telling mine.

I met then-Senator Biden in the mid-1980s, when he was a member of the Judiciary Committee and I was covering the occasional judicial confirmation. By 1987, he was chairman of the committee, after the Democrats retook the Senate in the 1986 midterms. That summer, President Ronald Reagan nominated Judge Robert Bork to the Supreme Court.

Dec. 29

ny times logoNew York Times, Opinion: Will Pence Do the Right Thing? Neal K. Katyal, right, and John Monsky, Dec. 29, 2020. On Jan. 6, neal katyal othe vice president will preside as Congress counts the Electoral College’s votes. Let’s hope that he doesn’t do the unthinkable — and unconstitutional.

President Trump recently tweeted that “the ‘Justice’ Department and FBI have done nothing about the 2020 Presidential Election Voter Fraud,” followed by these more ominous lines: “Never give up. See everyone in D.C. on January 6th.”

The unmistakable reference is to the day Congress will count the Electoral College’s votes, with Vice President Mike Pence presiding. Mr. Trump is leaning on the vice president and congressional allies to invalidate the mike pence leftNovember election by throwing out duly certified votes for Joe Biden.

Mr. Pence, shown in a file photo thus far has not said he would do anything like that, but his language is worrisome. Last week, he said: “We’re going to keep fighting until every legal vote is counted. We’re going to win Georgia, we’re going to save America,” as a crowd screamed, “Stop the steal.”

And some Republicans won’t let up. On Monday, Representative Louie Gohmert of Texas and other politicians filed a frivolous lawsuit, which has multiple fatal flaws in both form and substance, in an attempt to force the vice president to appoint pro-Trump electors.

Mr. Katyal, a law professor at Georgetown, is a former acting solicitor general of the United States. Mr. Monsky is the creator of the American History Unbound Series of multimedia productions that covers watershed moments in American history and a board member of the New-York Historical Society.

Dec. 28

ny times logoNew York Times, A Cheerleader’s Vulgar Message Prompts a First Amendment Showdown, Adam Liptak, right, Dec. 28, 2020. A Pennsylvania school district adam liptakhas asked the Supreme Court to rule on whether students may be disciplined for what they say on social media. The Supreme Court next month will consider whether to hear the case of Mahanoy Area School District v. B.L., involving a student’s freedom of speech while off school grounds.

It was a Saturday in the spring of 2017, and a ninth-grade student in Pennsylvania was having a bad day. She had just learned that she had failed to make the varsity cheerleading squad and would remain on junior varsity.

The student expressed her frustration on social media, sending a message on Snapchat to about 250 friends. The message included an image of the student and a friend with their middle fingers raised, along with text expressing a similar sentiment. Using a curse word four times, the student expressed her dissatisfaction with “school,” “softball,” “cheer” and “everything.”

Though Snapchat messages are ephemeral by design, another student took a screenshot of this one and showed it to her mother, a coach. The school suspended the student from cheerleading for a year, saying the punishment was needed to “avoid chaos” and maintain a “teamlike environment.”

The student sued the school district, winning a sweeping victory in the United States Court of Appeals for the Third Circuit, in Philadelphia. The court said the First Amendment did not allow public schools to punish students for speech outside school grounds.

Next month, at its first private conference after the holiday break, the Supreme Court will consider whether to hear the case, Mahanoy Area School District v. B.L., No. 20-255. The Third Circuit’s ruling is in tension with decisions from several other courts, and such splits often invite Supreme Court review.

In urging the justices to hear the case, the school district said administrators around the nation needed a definitive ruling from the Supreme Court on their power to discipline students for what they say away from school. “The question presented recurs constantly and has become even more urgent as Covid-19 has forced schools to operate online,” a brief for the school district said. “Only this court can resolve this threshold First Amendment question bedeviling the nation’s nearly 100,000 public schools.”

Justin Driver, a law professor at Yale and the author of The Schoolhouse Gate: Public Education, the Supreme Court and the Battle for the American Mind” agreed with the school district, to a point.

“It is difficult to exaggerate the stakes of this constitutional question,” he said. But he added that schools had no business telling students what they could say when they were not in school.

“In the modern era, a tremendous percentage of minors’ speech occurs off campus but online,” he said. “Judicial decisions that permit schools to regulate off-campus speech that criticizes public schools are antithetical to the First Amendment. Such decisions empower schools to reach into any student’s home and declare critical statements verboten, something that should deeply alarm all Americans.”

The key precedent is from a different era. In 1969, in Tinker v. Des Moines Independent Community School District, the Supreme Court allowed students to wear black armbands to protest the Vietnam War but said disruptive speech, at least on school grounds, could be punished.

Dec. 27

Palmer Report, Opinion: Donald Trump’s criminal culpability, Robert Harrington, Dec. 27, 2020. In all of Donald Trump’s pardons and commutations to date, sixty of the sixty-five have a personal connection. While the Constitution places no barrier on pardons or commutations and no standard by which they must adhere, it is nevertheless so very, er, Trumpian — for lack of a better word — that most of Donald Trump’s pardons and commutations could be construed as having a corrupt purpose. Cory Booker puts it even more plainly in his recent tweet: “A pardon is supposed to be an instrument of justice — not a tool of corruption.”

bill palmer report logo headerIn a recent interview with CBS, former fixer and hatchet man for Donald Trump Michael Cohen — who is currently serving an in-home three year sentence for fraud and lying to Congress during the Russia probe — gave his opinion about Trump’s perceived abuse of the presidential pardon. Cohen also used the opportunity to plug his book, “Disloyal,” which became a New York Times bestseller, and to plug his upcoming book which will, no doubt, also be a bestseller.

The difference between what Cohen has to say and what Trump has to say boils down to — what else? — evidence. Cohen’s testimony in court and his final mea culpa before Congress has been backed by impressive mountains of evidence.

The bottom line, as far as Cohen is concerned, is that Trump is going to face a mountain of legal issues once he leaves office, because “I have been questioned by the attorney general’s team on many occasions now as well as the District Attorney’s office … I know what it is they’re looking for.” That they will be prosecuting Donald Trump Cohen has no doubt.

Cohen cannot get into details because “it’s an ongoing investigation,” but, “it has to do with his finances, it has to do with his tax returns, it has to do with his properties, it has to do with the financial personal statements that he provided in order to obtain loans.” So if Cohen is right, Donald Trump is in significant civil and criminal jeopardy.

Cohen also thinks Trump is on the order of a billion dollars in debt. Trump, of course, calls Cohen a liar, and that is one of his more polite adjectives used by the one-term lame duck president. “The fact that Donald Trump calls me a liar,” Cohen avers, “should automatically mean that I’m telling the truth.”

Dec. 26

Palmer Report, Opinion: Donald Trump goes off the deep end in a haze of delusional desperation, Bill Palmer, Dec. 26, 2020. Just how poorly are things going President Donald Trump officialfor Donald Trump? He’s spent the day accusing the Supreme Court, the FBI, the Department of Justice, U.S. Attorney John Durham, and Republican Senators of conspiring to hide the fact that he secretly won the 2020 election. Translation: he knows it’s all over for him.

bill palmer report logo headerTrump also made up a fake story today about an imaginary person who told him that elections in Afghanistan are better run than the 2020 U.S. election was. In response to this idiocy, “Move to Afghanistan” is now trending on Twitter. No one outside his shrinking lunatic base wants Trump here anymore. Then again, it’s doubtful that Afghanistan would want him either.

As Donald Trump’s delusional desperation grows more absurd, his most ardent remaining supporters are heading down that same path. Earlier today they tried to convince themselves on social media that House Intelligence Committee Chairman Adam Schiff has secretly been arrested. This obviously didn’t happen. Trump and his supporters have always made up nonsense, but now that he’s lost and their movement is at a dead end, that nonsense is becoming more clinically insane.

ny times logoNew York Times, Behind Trump Clemency, a Case Study in Special Access, Kenneth P. Vogel, Eric Lipton and Jesse Drucker, Dec. 26, 2020 (print ed.). Philip Esformes was sentenced to 20 years for Medicare fraud. Then a well-connected organization supported by his family weighed in with the White House.

philip esformesPhilip Esformes, left, acquired a $1.6 million Ferrari and a $360,000 Swiss watch and traveled around the United States on a private jet, a spending spree fueled by the spoils from what federal prosecutors called one of the largest Medicare fraud cases in history.

“Philip Esformes is a man driven by almost unbounded greed,” Denise M. Stemen, an agent in the F.B.I.’s Miami field office, said last year after Mr. Esformes, 52, a nursing home operator, was sentenced to 20 years in prison for the two-decade scheme that involved an estimated $1.3 billion worth of fraudulent claims.

djt smiling fileThat prison term ended suddenly this week, when President Trump commuted what remained of Mr. Esformes’s sentence.

His rapid path to clemency is a case study in how criminals with the right connections and resources have been able to cut through normal channels and gain the opportunity to make their case straight to the Trump White House.

Background: South Florida Business Journal, South Florida man sentenced to 20 years in $1B Medicare fraud, Ashley Portero, Sept. 13, 2019. Former health care executive Philip Esformes was sentenced to 20 years in prison Thursday in the U.S. District Court for the Southern District of Florida.

philip esformesThe Miami Beach resident, right, was convicted on 20 criminal charges, including bribery and money laundering, in connection to what's been described as the largest Medicare fraud scheme in U.S. history.

“Esformes will now spend years in prison for orchestrating a kick-back and money laundering scheme that defrauded America’s health care system out of millions of dollars,” said Fajardo Orshan, U.S. Attorney for the Southern District of Florida.

HHS logoEsformes was accused of billing Medicare and Medicaid programs for more than $1 billion in fraudulent services from 1998 to 2016. In April, a federal jury found him guilty of paying kickbacks to doctors and administrators and one count of conspiracy to defraud the United States.

FBI logoEsformes operated a network of skilled nursing homes and assisted living facilities in Florida, including Adar Associates, Eden Gardens LLC, Lauderhill Manor LLC, Flamingo Park Manor LLC and La Serena Retirement. The nursing homes admitted many Medicare and Medicaid beneficiaries, even if they did not qualify for those placements.

Once patients were admitted, the facilities billed the government health care programs for unnecessary treatments and services, prosecutors said.

Prosecutors claimed Esformes concealed inadequate care and conditions at the facilities by bribing an employee of a Florida state regulator. In return, he received advanced notice of surprise inspections to the facilities in his network (Emphasis added).

He personally received more than $37 million during the course of the fraud, according to court documents. Prosecutors said he spent some of the illegal proceeds on luxury cars, expensive clothes and watches, and on a bribe to a basketball coach at the University of Pennsylvania.

Odette Barcha, a hospital administrator, and Arnaldo Carmouze, a former physician assistant, previously pleaded guilty for their roles in the scheme. In April, Carmouze was sentenced to 80 months in prison and ordered to pay $12,590,761 in restitution (Emphasis added). Barcha was sentenced to three to 15 months in prison and ordered to pay $704,516 in restitution.

Dec. 25

michael flynn djt

Former general and Trump National Security Advisor Michael Flynn, shown above in a file photo separate from Trump's, has called for a military coup to maintain the presidency of Trump, who has pardoned Flynn from federal crimes stemming from lying at Flynn's contacts with Russians before taking office in January 2017. Flynn's attorney Sydney Powell, invited to the White House three times in recent days to meet with Trump, has been working on courtroom, political and media strategies to disallow voting results in multiple swing states to keep Trump in office.

washington post logoWashington Post, Investigation: Sidney Powell’s secret intelligence contractor witness is a pro-Trump podcaster, Jon Swaine, Dec. 25, 2020 (print ed.). As she asked the U.S. Supreme Court this month to overturn President Trump’s election loss, the attorney Sidney Powell cited testimony from a secret witness presented as a former intelligence contractor with insights on a foreign conspiracy to subvert democracy.

sidney powellPowell, right, told courts that the witness is an expert who could show that overseas corporations helped shift votes to President-elect Joe Biden. The witness’s identity must be concealed from the public, Powell has said, to protect her “reputation, professional career and personal safety.”

The Washington Post identified the witness by determining that portions of her affidavit match, sometimes verbatim, a blog post that the pro-Trump podcaster Terpsichore Maras-Lindeman published in November 2019. In an interview, Maras-Lindeman confirmed that she wrote the affidavit and said she viewed it as her contribution to a fight against the theft of the election.

“This is everybody’s duty,” she said. “It’s just not fair.”

terpsichore maras lindemanIn a recent civil fraud case, attorneys for the state of North Dakota said that Maras-Lindeman, shown in a screenshot at left, falsely claimed to be a medical doctor and to have both a Ph.D. and an MBA. They said she used multiple aliases and social security numbers and created exaggerated online résumés as part of what they called “a persistent effort . . . to deceive others.”

Powell’s reliance on Maras-Lindeman’s testimony may raise further questions about her judgment and the strength of her arguments at a time when she is becoming an increasingly influential adviser to the president.

Trump’s legal team distanced itself from Powell last month after she falsely claimed Republican state officials took bribes to rig the election. But she has visited the White House three times in the past week, once to participate in an Oval Office meeting. Trump has weighed naming Powell a special counsel to investigate the election, according to previous reports.

Maras-Lindeman, 42, served in the Navy for less than a year more than two decades ago and has said she worked later as a government contractor and part-time interpreter. She has identified herself as a “trained cryptolinguist.”

North Dakota’s assertions about her credentials came in a civil case brought by the state’s attorney general in 2018 over a purported charitable event she tried to organize in Minot, N.D., where she and her family resided. Attorneys for the state said she used money she collected — ostensibly to fund homeless shelters and wreaths for veterans’ graves — on purchases for herself at McDonald’s, QVC and elsewhere.

A judge ultimately found that Maras-Lindeman violated consumer protection laws by, among other things, misspending money she raised and soliciting donations while misrepresenting her experience and education. He ordered her to pay more than $25,000.

Maras-Lindeman has appealed to the state Supreme Court. In court filings and in her interview with The Post, she denied mishandling the funds or misleading donors. She blamed identity theft and bureaucratic failings for a proliferation of variations on her name and social security numbers associated with her.

Dec. 22

william barr doj announcement Custom

ny times logoNew York Times, Barr Sees ‘No Reason’ for Special Counsels for Hunter Biden or the Election, Katie Benner, Dec. 22, 2020 (print ed.). The outgoing attorney general, William Barr, again broke with President Trump on his unsupported claims of widespread election fraud and the need to appoint a special counsel to investigate the president-elect’s son.

Attorney General William P. Barr, shown above in a file photo, said Monday that he saw no reason to appoint special counsels to oversee the Justice Department’s ongoing criminal investigation into Hunter Biden, son of President-elect Joseph R. Biden, Jr., or to investigate President Trump’s baseless claims of widespread voter fraud, again undercutting Mr. Trump’s efforts to bend the department to his political will and to overturn the results of the election.

President Donald Trump officialAt a news conference to announce charges in an unrelated terrorism case, Mr. Barr said that he did not “see any reason to appoint a special counsel” to oversee the ongoing investigation into the younger Mr. Biden.

“I have no plan to do so before I leave,” Mr. Barr said. ”To the extent that there is an investigation, I think that it’s being handled responsibly and professionally.”

He also said that he would name a special counsel to oversee an inquiry into election fraud if he felt one was warranted. “But I haven’t and I’m not going to,” Mr. Barr said. He added that he saw “no basis” for the federal government to seize voting machines.

Mr. Barr’s comments are sure to further poison his relationship with Mr. Trump, who has expressed rage that Mr. Barr has not done more to help him overturn the results of the November election.

Mr. Barr has long been regarded as Mr. Trump’s most loyal and effective cabinet member, who on several occasions made decisions that directly benefited Mr. Trump and his allies. But his relationship with the president fractured in the wake of the election after he publicly said that he had not seen enough voter fraud to change the election’s outcome and it became clear that he had kept the ongoing investigation in Mr. Biden’s son under wraps.

tommy tuberville doug jonesIncoming Republican U.S. Sen. Tommy Tuberville, left, is shown with the incumbent Alabama Democrat whom he defeated, Doug Jones.

washington post logoWashington Post, Opinion: Trump’s final hope rests with Tommy Tuberville. Sad! Dana Milbank, right, Dec. 22, 2020 (print ed.). dana milbank CustomPresident-unelect Trump has studied every play in the Coups-for-Dummies playbook: court challenges, pressure on Republican officials to overturn the election, even a half-baked plan for martial law from pardoned convict Michael Flynn. But no luck.

Now, Trump’s final hope rests with Tommy Tuberville.

This is like finding out your death-row appeal will be argued by Sidney Powell.

Tuberville — or “Tubs,” from his college football coaching days — is the Republican senator-elect from Alabama, and he’s proposing to object to the election results in the Senate on Jan. 6. Trump exulted: “Great senator.”

Problem is, Tubs, if he were a Democrat, is what Trump might call a “low-IQ individual.” In their wisdom, the voters of Alabama chose to replace Democrat Doug Jones, who prosecuted the Birmingham church bombing, with a man who recently announced his discovery that there are “three branches of government,” namely, “the House, the Senate and the executive.”

Tuberville was baffled by the vote counting after Election Day (“The referees are suddenly adding touchdowns to the other team’s side of the scoreboard”), and last week said he plans a Senate challenge to the electoral college tally.

Dec. 21

Palmer Report, Opinion: Bill Barr sides with Mike Pompeo against Donald Trump as everything falls apart, Bill Palmer, Dec. 21, 2020. There is no longer any plan, strategy, or scheme that will magically save Donald Trump from being booted out of office in thirty days. He can’t accept that, because once he’s out of office, he’ll be on a path to prison, bankruptcy, and the end of his life as he knows it.

There’s a reason why Trump is now reduced to listening to the delusional fantasies of his crackpot election lawyers: they’re the only people still floating any scenarios for magically saving him. Trump’s “adult” henchmen already know it’s over, and are now trying to cover their own backsides.

bill palmer report logo headerAttorney General Bill Barr is publicly admitting that Trump lost the election fair and square. Secretary of State Mike Pompeo is publicly admitting that it was indeed Russia who hacked U.S. government agencies. Barr has lost his job over it, and Pompeo might be about to. But now Barr is publicly siding with Pompeo on the Russia thing, contradicting Trump’s assertion that the hack was either overblown, or fake, or somehow done by China.

It’s clear that henchmen like Barr and Pompeo are trying to rehabilitate their images now that Trump is taking a fall. After all, the DOJ could easily charge them both with felonies for the criminal antics they carried out while in office. The best way to beat those charges is to establish the narrative now that they couldn’t have been willing Trump henchmen, since they stood up to him in the end.

Barr and Pompeo shouldn’t be let off the hook at all. They each belong in prison; Barr for numerous instances of felony obstruction of justice and Pompeo for his criminal antics in the Ukraine scandal. But for now, the point is that some of Trump’s biggest henchmen are already selfishly turning against him. They know Trump is finished.

Trump attorneys Rudy Giuliani and Jennar Ellis allege election fraud to Republican legislators this month in a performance widely ridiculed because of lack of evidence persuasive to courts and Giuliani's flatulence (heard shortly before this screenshot).

Trump attorneys Rudy Giuliani and Jennar Ellis allege election fraud to Republican legislators this month in a performance widely ridiculed because of lack of evidence persuasive to courts and Giuliani's flatulence (heard shortly before this screenshot).

washington post logoWashington Post, Analysis: How Trump drove the lie that the election was stolen, undermining voter trust in the outcome, Amy Gardner, Dec. 21, 2020 (print ed.). Flanked by pro-Trump media outfits and an assortment of state lawmakers and lawyers who gave oxygen to debunked allegations, the president persuaded millions of Americans that the vote was rigged.

Mediaite, Rudy Giuliani Disavows Sidney Powell’s Role in Trump Legal Fight — After Her Third Oval Office Visit in Four Days, Reed Richardson, Dec 21, 2020. Donald Trump’s personal lawyer and quixotic leader of the campaign to overturn the 2020 election, Rudy Giuliani, labored to distance the president from fellow legal conspiracist Sidney Powell, even though she has visited the White House in three of the last four days.

During an appearance on Newsmax’s Spicer & Co, Giuliani insisted that Powell was acting independently and was not associated with his official efforts on behalf of Trump, despite those visits.

Giuliani’s reference to “special counsel” came after news reports that, during Powell’s Friday Oval Office audience with the president, he reportedly floated the idea of naming Powell as special counsel to investigate election fraud — a move that it should be pointed out is beyond Trump’s authority, since, by regulation, only the attorney general can appoint a special counsel.

However, just moments later, Giuliani appeared to subtly cast aspersions on Powell’s legal strategy. “We’re going to be extremely aggressive, we’re going to fight for our client as hard as we can,” he added. “But we’re also going to do in within the bounds of rationality, common sense, and the law. And it can be done. There’s no reason to go beyond anything.”

This isn’t the first time Giuliani has ruled out Powell having an official role in the legal fight, as he claimed the pair were “pursuing two different theories” just before Thanksgiving. Still, Giuliani’s disavowal rings hollow, since Powell continues to have the president’s ear and, just days before his earlier disavowal, Giuliani and Powell held a surreal, joint press conference where he stood beside her as she pushed delusional election conspiracies involving George Soros, Hugo Chavez, the Clintons, and Antifa, among others.

djt looking up

washington post logoWashington Post, Trump is leaving behind crises and undermining Biden before he takes office, Toluse Olorunnipa, Josh Dawsey and Anne Gearan, Dec. 21, 2020 (print ed.). In a situation without precedent in U.S. history, one president is ending his term amid a global emergency while seeking to delegitimize a successor — and floating the prospect of mounting a four-year campaign to return to power. 

Biden’s incoming administration has long described a “perfect storm” of four crises facing the country — the pandemic, economic distress, climate change and racial justice. It suddenly has another to add: a historic cyber intrusion into government networks that likely began months ago and could reverberate for months to come.

ny times logoNew York Times, Analysis: The ‘Red Slime’ Lawsuit That Could Sink Right-Wing Media, Ben Smith, Updated Dec. 21, 2020. Last week, a lawyer for Antonio Mugica sent scathing letters to Fox, Newsmax and OAN demanding that they immediately, forcefully clear his company’s name. Voting machine companies threaten “highly dangerous” cases against Fox, Newsmax and OAN, says Floyd Abrams.

antonio mugicaAntonio Mugica, left, was in Boca Raton when an American presidential election really melted down in 2000, and he watched with shocked fascination as local government officials argued over hanging chads and butterfly ballots.

It was so bad, so incompetent, that Mr. Mugica, a young Venezuelan software engineer, decided to shift the focus of his digital security company, Smartmatic, which had been working for banks. It would offer its services to what would obviously be a growth smartmaticindustry: electronic voting machines. He began building a global company that ultimately provided voting machinery and software for elections from Brazil to Belgium and his native Venezuela. He even acquired an American company, then called Sequoia.

Last month, Mr. Mugica initially took it in stride when his company’s name started popping up in grief-addled Trump supporters’ wild conspiracy theories about the election.

“Of course I was surprised, but at the same time, it was pretty clear that these people were trying to discredit the election and they were throwing out 25 conspiracy theories in parallel,” he told me in an interview last dominion voting systemsweek from Barbados, where his company has an office. “I thought it was so absurd that it was not going to have legs.”

rudy giuliani recentBut by Nov. 14, he knew he had a problem. That’s when Rudy Giuliani, right, serving as the president’s lawyer, suggested that one voting company, Dominion Voting Systems, had a sinister connection to vote counts in “Michigan, Arizona and Georgia and other states.” Mr. Giuliani declared on Twitter that the company “was a front for SMARTMATIC, who was really doing the computing. Look up SMARTMATIC and tweet me what you think?”

Soon his company, and a competitor, Dominion — which sells its services to about 1,900 of the county governments that administer elections across America — were at the center of Mr. Giuliani’s and Sidney Powell’s theories, and on the tongues of commentators on Fox News and its farther-right rivals, Newsmax and One America News.

Here’s the thing: Smartmatic wasn’t even used in the contested states. The company, now a major global player with over 300 employees, pulled out of the United States in 2007 after a controversy over its founders’ Venezuelan roots, and its only involvement this November was with a contract to help Los Angeles County run its election.

In an era of brazen political lies, Mr. Mugica has emerged as an unlikely figure with the power to put the genie back in the bottle.

djt maga hatLast week, his lawyer sent scathing letters to the Fox News Channel, Newsmax and OAN demanding that they immediately, forcefully clear his company’s name — and that they retain documents for a planned defamation lawsuit.

He has, legal experts say, an unusually strong case. And his new lawyer is J. Erik Connolly, who not coincidentally won the largest settlement in the history of American media defamation in 2017, at least $177 million, for a beef producer whose “lean finely textured beef” was described by ABC News as “pink slime.”

washington post logoWashington Post, Editorial: There is no middle ground between fact and fiction on the election results, Editorial Board, Dec. 21, 2020 (print ed.). As President Trump continues to lie about last month’s election, national Republican leaders are trying to stake out what they imagine as a middle ground: While Joe Biden is the president-elect, the 2020 election was marred by substantial fraud and election irregularities. In fact, this is also a lie, and their dishonesty damages U.S. democracy.

ron johnson oAt a Wednesday Senate Homeland Security and Governmental Affairs Committee hearing, Chairman Ron Johnson (R-Wis.), right, declared that it is “not sustainable” for a large proportion of Americans to believe the election results are illegitimate. He then set about encouraging this false belief by dignifying debunked attacks on the vote’s integrity. Mr. Johnson insisted that pro-Trump forces have raised “legitimate concerns” about “violations of election laws,” “fraudulent votes and ballot stuffing,” and “corruption of voting machines and software that might be programmed to add or switch votes.”

Republicans are inaugurating a new, dangerous era in which political parties may refuse to acknowledge election results merely because they dislike the choices voters made. The damage is twofold: Dignifying fake claims of widespread election irregularities shreds confidence in democracy, destabilizing the nation’s politics and encouraging potentially violent resistance to duly elected leaders.

Meanwhile, GOP state lawmakers in swing states such as Michigan and Pennsylvania have responded to Republican outrage about Mr. Trump’s loss by promising major voting overhauls. This would fit into Republicans’ longer-term efforts to impose restrictions on casting ballots that depress voter participation yet provide little improvement in election integrity.

Sidney Powell, right, and Jenna Ellis

Trump attorneys Jenna Ellis, left, and Sidney Powell conduct a press conference with Trump counsel Rudy Giuliani before Trump fired Powell.

Palmer Report, Opinion: Donald Trump checks out, Bill Palmer, right, Dec. 21, 2020. Donald Trump’s election lawyers Sidney Powell and Lin Wood have spent this bill palmerevening using social media to rather viciously attack Trump’s White House Chief of Staff Mark Meadows and Trump’s Secretary of State Mike Pompeo, accusing them of being part of some kind of ill-defined conspiracy against Trump.

Presumably, this is because Meadows dared to tell Trump that Powell’s lunatic plans to magically overturn the election were literally impossible, and that Pompeo dared to publicly admit that it was Russia who hacked U.S. government agencies. But the specific reasoning behind the scuffle is less important than the fact that it’s happening at all, and what it tells us about Donald Trump himself.

bill palmer report logo headerPowell, Wood, Meadows, and Pompeo are all fully complicit in Trump’s overall corrupt agenda. They’re all his henchmen. If Trump were still in the game, he’d be giving them marching orders, telling them what to do, and getting them all on the same page – his page.

Instead, Trump’s henchmen are all eating each other alive, even as Trump says and does little. This is a clear sign that he’s checked out mentally, and his henchmen are each left to their own devices and trying to fill the resulting power vacuum with their own personal agendas.

Best anyone can tell, Trump likes to hear from his lunatic lawyers because their magical imaginary solutions make him feel good – but then he also likes it when his more stable henchmen explain why none of it’s real, because that gives him an excuse not to have to take action.

Donald Trump is in that place where he’s scared of his own shadow, knows he’s one false move from finished, also knows that he’s doomed if he doesn’t do anything, and just wants to be told that it’s all going to be magically okay. In other words, he’s checked out entirely.

Dec. 17

washington post logoWashington Post, Opinion: John Roberts’s self-defeating attempt to make the court appear nonpolitical, Varad Mehta and Adrian Vermeule, Dec. 17, 2020).  If Roberts’s apostasies have demoralized the right — Vice President Pence flatly called him a “disappointment to conservatives” in August — john roberts othey have emboldened the left.

Far from sating critics of the court, his concessions have only whetted their appetite. His fundamental error has been to think that he could deflect attacks from the left by surrendering to it on some of the most divisive issues. Rather than conciliatory, these gestures have been regarded as a sign of weakness.

Varad Mehta is a historian and writer. Adrian Vermeule is the Ralph S. Tyler Jr. professor of constitutional law at Harvard Law School.

Dec. 15

william barr at doj

washington post logoWashington Post, William P. Barr to depart as attorney general, Trump announces, Matt Zapotosky, Dec. 15, 2020 (print ed.). William P. Barr, right, is stepping down as attorney general, President Trump announced Monday, ending a controversial tenure as the country’s top law enforcement official in which critics say he repeatedly used the Justice Department to aid Trump’s allies only to have the president turn on him when he did not bring charges against those seen as political foes and disputed claims of widespread election fraud.

Trump revealed the move on Twitter, writing that he and Barr, shown above in a file photo, had a “nice meeting” at the White House, and Barr would “be leaving just before Christmas to spend the holidays with his family.”

Trump claimed, “Our relationship has been a very good one, he has done an outstanding job!” — though Trump had expressed frustration with Barr in recent days because Barr did not reveal before the election that Hunter Biden, President-elect Joe Biden’s son, was under investigation by the Justice Department.

He told Fox News this weekend that Barr “should have stepped up” on the matter.

“All he had to do is say an investigation’s going on,” Trump said, adding later, “When you affect an election, Bill Barr, frankly, did the wrong thing.”

washington post logoWashington Post, Proud Boys who came ‘seeking violence’ sparked clashes during pro-Trump rally, D.C. officials say, Tom Jackman, Michael Brice-Saddler and Ann E. Marimow, Dec. 15, 2020 (print ed.). Police said that 38 people had been arrested for protest-related actions, and D.C. Police Chief Peter Newsham said eight officers were injured, one seriously. Ten people were charged with assault on a police officer.

Dec. 13

washington post logoWashington Post, ‘The last wall’: How dozens of judges rejected Trump’s efforts to overturn election, Rosalind S. Helderman and Elise Viebeck, Rosalind S. Helderman and Elise Viebeck, Dec. 13, 2020 (print ed.). They are both elected and appointed, selected by Democrats and Republicans alike.

Some have served for decades — while others took the bench only months ago.

Since the November election, they have all ruled in court against Trump or one of his allies seeking to challenge or overturn the presidential vote.

In a remarkable show of near-unanimity across the nation’s judiciary, at least 86 judges — ranging from jurists serving at the lowest levels of state court systems to members of the United States Supreme Court — rejected at least one post-election lawsuit filed by Trump or his supporters, a Washington Post review of court filings found.

The string of losses was punctuated Friday by the brief and blunt order of the Supreme Court, which dismissed an attempt by the state of Texas to thwart the electoral votes of four states that went for President-elect Joe Biden.

Palmer Report, Opinion: After humiliating Supreme Court defeat, Donald Trump shifts course in his grift, Bill Palmer, Dec. 13, 2020. The Supreme Court has now destroyed Donald Trump. It’s ended his presidency, and it’s cleared the way for others to drive him into prison and bankruptcy. But that isn’t stopping Trump from continuing his grift. In fact, now that his life is about to get squeezed from all sides, he needs the money more than ever.

bill palmer report logo headerTrump is now planning to run TV ads pretending that he won the election, according to Bloomberg. Since there is literally no one else for him to appeal to, it means he’s simply trying to con his gullible supporters into giving him money for an imaginary election battle.

Trump had better pocket what he can. He’s now just 38 days from being an ordinary citizen again. New York State is ramping up its criminal case against him, amid rumblings that his creditors are planning to cut their losses on him. Trump is so pathetically in debt, even his election grifting isn’t likely to keep his financial house of cards intact for long.

Dec. 11

djt biden smiles resized

ny times logoNew York Times, Supreme Court Rejects Texas Suit Seeking to Subvert Election, Adam Liptak, right, Dec. 11, 2020. The Supreme Court on adam liptakFriday rejected a lawsuit by Texas that had asked the court to throw out the election results in four battleground states that President Trump lost in November, ending any prospect that a brazen attempt to use the courts to reverse his defeat at the polls would succeed.

The court, in a brief unsigned order, said Texas lacked standing to pursue the case, saying it “has not demonstrated a judicially cognizable interest in the manner in which another state conducts its elections.”

The order, coupled with another one on Tuesday turning away a similar request from Pennsylvania Republicans, signaled that a conservative court with three justices appointed by Mr. Trump refused to be drawn into the extraordinary effort by the president and many prominent members of his party to deny his Democratic opponent, former Vice President Joseph R. Biden Jr., his victory.

It was the latest and most significant setback for Mr. Trump in a litigation campaign that was rejected by courts at every turn.

Texas’ lawsuit, filed directly in the Supreme Court, challenged election procedures in four states: Georgia, Michigan, Pennsylvania and Wisconsin. It asked the court to bar those states from casting their electoral votes for Mr. Biden and to shift the selection of electors to the states’ legislatures. That would have required the justices to throw out millions of votes.

djt brett kavanaugh amy coney barrettMr. Trump has said he expected to prevail in the Supreme Court, after rushing the confirmation of Justice Amy Coney Barrett in October in part in the hope that she would vote in Mr. Trump’s favor in election disputes.

“I think this will end up in the Supreme Court,” Mr. Trump said of the election a few days after Justice Ruth Bader Ginsburg’s death in September. “And I think it’s very important that we have nine justices.”

He was right that an election dispute would end up in the Supreme Court. But he was quite wrong to think the court, even after he appointed a third of its members, would do his bidding. And with the Electoral College set to meet on Monday, Mr. Trump’s efforts to change the outcome of the election will soon be at an end.

supreme court CustomDec. 10

washington post logoWashington Post, U.S., states sue Facebook as an illegal monopoly, setting stage for potential breakup, Tony Romm, Dec. 10, 2020 (print ed.). The U.S. government and 48 attorneys general filed landmark antitrust lawsuits against Facebook on Wednesday, seeking to break up the social networking giant over charges it engaged in illegal, anti-competitive tactics to buy, bully and kill its rivals.

facebook logoThe twin lawsuits filed in federal district court allege that Facebook under its CEO, Mark Zuckerberg, behaved for years as an unlawful monopoly — one that had repeatedly weaponized its vast stores of data, seemingly limitless wealth and savvy corporate muscle to fend off threats and maintain its stature as one of the most widely used social networking services in the world.

The state and federal complaints chiefly challenge Facebook’s acquisition of two companies: Instagram, a photo-sharing tool, and Justice Department log circularWhatsApp, a messaging service. Investigators said the purchases ultimately helped Facebook remove potentially potent rivals from the digital marketplace, allowing the tech giant to enrich itself on advertising dollars at the cost of users, who as a result have fewer social networking options at their disposal.

Read the state and federal lawsuits against Facebook

The lawsuits together represent the most significant political and legal threats to Facebook in its more than 16-year history, setting up a high-profile clash between U.S. regulators and one of Silicon Valley’s most profitable firms that could take years to resolve. Antitrust regulators explicitly asked a court to consider forcing Facebook to sell off Instagram and WhatsApp to remedy their competition concerns. Such a punishment would unwind Zuckerberg’s digital empire and severely constrain Facebook’s ambitions.

The Federal Trade Commission, led by Republican Chairman Joe Simons, brought its lawsuit in a D.C. district court. Letitia James, the Democratic attorney general of New York, led her Democratic and Republican counterparts from dozens of states and territories in filing their complaint in the same venue. Appearing at a news conference, James on Wednesday sharply rebuked Facebook for having put “profits ahead of consumers’ welfare and privacy.”

washington post logoWashington Post, Silicon Valley feared Facebook’s bullying tactics years before they came to the attention of regulators, Elizabeth Dwoskin, Dec. 10, 2020 (print ed.). Facebook hasn’t kept its promises of independence to WhatsApp and Instagram.

Facebook executives approached Ali Partovi, the creator of a popular app that used Facebook’s data, a decade ago with a threatening ultimatum. Sell your company to us or we will shut you down, according to legal filings. Partovi’s app, iLike, had built a predecessor to the “like” button.

facebook logoPartovi refused the offer. Shortly after, Facebook discontinued features that iLike relied upon, pushing Partovi to sell his start-up to Myspace for a fraction of its previous value. Facebook then built its own “like” button, modeled after iLike.

The negotiations — when Facebook was a much smaller player — are early evidence of the hardball tactics to neutralize competition that got the social network to where it is today: a platform that counts more than a third of the world’s population as monthly users of its family of apps, which include WhatsApp messaging and the photo-sharing service Instagram.

That behavior is now the subject of sweeping antitrust lawsuits filed Wednesday from 48 state attorneys general and the Federal Trade Commission. The suits allege that the company is a monopoly that abused its market power through years of anti-competitive conduct and illegal acquisitions, enabling Facebook to become the world’s largest social network while stripping users of alternatives.

hunter biden

washington post logoWashington Post, Hunter Biden confirms he is under federal investigation, Matt Zapotosky, Devlin Barrett and Colby Itkowitz, Dec. 10, 2020 (print ed.).  Federal prosecutors have been investigating Hunter Biden, President-elect Joe Biden’s son, to determine if he failed to report income from China-related business deals, according to people familiar with the matter — a politically explosive probe that is likely to challenge the Justice Department in the incoming administration.

The investigation into the president-elect’s son began in 2018, though little could be learned immediately about what, if any, wrongdoing it had found. The existence of a tax investigation was confirmed Wednesday by Hunter Biden in a statement saying he had just been advised of it.

According to a person familiar with the matter, who like others spoke on the condition of anonymity to discuss an ongoing and politically sensitive investigation, FBI agents had been seeking to talk to Hunter Biden as part of the case on Tuesday — though an interview has not yet been scheduled or taken place — as well as serve subpoenas on Hunter Biden and his associates.

irs logo“I learned yesterday for the first time that the U.S. attorney’s office in Delaware advised my legal counsel, also yesterday, that they are investigating my tax affairs,” Hunter Biden said in a statement. “I take this matter very seriously but I am confident that a professional and objective review of these matters will demonstrate that I handled my affairs legally and appropriately, including with the benefit of professional tax advisors.”

“President-elect Biden is deeply proud of his son, who has fought through difficult challenges, including the vicious personal attacks of recent months, only to emerge stronger,” the Biden transition team wrote in a statement.

Although the investigation has been ongoing for some time, it is unclear how far along prosecutors consider themselves toward building a criminal case or closing the matter. The subject of an investigation typically is interviewed when prosecutors have amassed a good deal of evidence — though prosecutors seeking to serve subpoenas as recently as this week suggests there is more investigative work to be done.

A person familiar with the case said that the investigation continued during the election year but that agents took care not to take overt investigative steps as voting neared that would have made it more widely known. Those precautions, the person said, became unnecessary once the election was over.

If the investigation is continuing when Joe Biden takes office, it will mark a major test for him and his attorney general. Democrats have criticized the Justice Department, alleging it has lost its historical independence from the White House during the Trump administration, as Attorney General William P. Barr has intervened in cases to the benefit of President Trump’s friends, and Joe Biden’s incoming chief of staff has said the president-elect will not tell the Justice Department whom to investigate or not.

Trump on Wednesday night tweeted a claim about voters changing their minds “if they knew about Hunter Biden” and added, falsely, “But I won anyway!”

Hunter Biden’s foreign business ventures have long dogged his father’s political life, as Republicans have alleged they presented conflicts of interest for the elder Biden.

Trump and his GOP allies targeted Hunter Biden throughout the presidential campaign, specifically his work for a Ukrainian gas company while his father was vice president, as well as his China-related business affairs. Trump invited a former business associate of Hunter Biden to attend the final presidential debate, and in a staged event beforehand, the associate discussed a deal involving a Chinese company.

The associate, Tony Bobulinski, alleged that in May 2017 he met with Joe Biden and his son, as well as Joe Biden’s brother Jim to discuss a joint venture with the Chinese energy firm CEFC. That was after Joe Biden had left public office, and it was far from clear he would again run in 2020. But Bobulinski appeared to be disputing Joe Biden’s assertion that he had never discussed foreign business dealings with his son. Bobulinski told Sinclair Broadcast Group in October that he had been interviewed for five hours by the FBI.

Trump’s fixation on Hunter Biden began months before Joe Biden won the Democratic presidential nomination. Trump asked Ukrainian President Volodymyr Zelensky to open a public investigation into Hunter Biden’s work for a Ukrainian energy company while simultaneously withholding U.S. military aid to the country.

washington post logoWashington Post, Doug Jones is on Biden’s attorney general list, along with Sally Yates, Merrick Garland and Deval Patrick, Matt Viser, Matt Zapotosky and Amy B Wang, Dec. 10, 2020 (print ed.). President-elect Joe Biden’s top advisers have asked at least one outside advocacy group for input about Sen. Doug Jones as a potential attorney general, one indication that his team is giving serious consideration to the Alabama Democrat as the nation’s top law enforcement official.

Biden is not expected to make a decision this week, prolonging the debate both inside and outside his transition team over what will be one of the highest-profile roles in his administration. It has sent the wider legal and political worlds into a frenzy, with Biden’s close-knit advisers keeping a tight lid on their decision-making process amid widespread interest over who will lead a consequential department whose morale has plummeted under an assault from President Trump.

Justice Department log circularIt also has extended questions about the diversity of Biden’s Cabinet, as a range of groups press him to name a Black attorney general in the aftermath of a national racial reckoning on race that Biden has vowed to systematically address.

At least four candidates remain under serious consideration for the position, according to two people familiar with the decision-making process who, like others, spoke on the condition of anonymity to talk about internal discussions. In addition to Jones, top Biden advisers are eyeing former deputy attorney general Sally Yates, federal appeals court judge Merrick Garland and former Massachusetts governor Deval Patrick. All but Patrick are White.

doug jones senateJones, right, who lost his reelection bid in November, has a record that has impressed some civil rights groups. Allies have pointed to his time as a U.S. attorney, which included the prosecution two decades ago of Ku Klux Klan members for the 1963 bombing of a Birmingham church in which four young Black girls were killed.

In what has become another vital component during Biden’s selection of nominees, Jones has a long-standing relationship with the president-elect, dating back to 1978 when Biden went to Alabama to speak at Cumberland School of Law at Samford University and was introduced by a young Jones.

Jones later worked with Biden on the Senate Judiciary Committee and was the Alabama co-chair of Biden’s short-lived 1988 presidential campaign.

Dec. 8

Attorney Mark Anderl, his wife, U.S. District Judge Esther Salas, and their son, Daniel Anderl

ny times logoNew York Times, Opinion: My Son Was Killed Because I’m a Federal Judge, Esther Salas (shown above with her son and husband, a United States District Court judge for the District of New Jersey who sits in Newark), Dec. 8, 2020. Protecting judges is essential to our families, and our democracy.

“Let’s keep talking; I love talking to you, Mom.” Those were the last words spoken to me by my only child, Daniel, as we cleaned up the basement from his birthday festivities. He was still glowing from a glorious weekend at home with his parents and friends.

Then the doorbell rang. Daniel raced up the stairs. Seconds later, as I stood alone in our basement, my beloved son was shot to death. Mark Anderl, my husband of 25 years was shot three times and critically injured.

This tragedy, every mother’s worst nightmare, happened for a reason wholly unrelated to either my husband or my son, but because of my job: I am a United States District Court judge. A lawyer who had appeared before me was angered by the pace of a lawsuit he had filed in my court. He came to my home seeking revenge.

My attacker sought to hurt me but his ire, and his focus, were not unique. Federal judges are at risk from other would-be attackers.

The threat to judges is intensifying. Security incidents targeting judges and other personnel who play integral roles in federal court cases rose to 4,449 threats and inappropriate communications in 2019, from 926 such incidents in 2015, according to the U.S. Marshals Service.

roy den hollander esther salasIn my case, Roy Den Hollander [shown at right with the judge in file photos), a New York lawyer who had filed a suit against the male-only military draft, harbored deadly grudges.

On July 11, 2020, he killed a lawyer in California. Eight days later, he came to our door and killed Daniel. Too late, I learned that he had often described himself as “anti-feminist.” In a self-published memoir, he described me as “a lazy and incompetent Latina judge appointed by Obama.”

For judges and their families, better security is a matter of life and death. But its importance goes beyond our well-being alone. For our nation’s sake, judicial security is essential. Federal judges must be free to make their decisions, no matter how unpopular, without fear of harm. The federal government has a responsibility to protect all federal judges because our safety is foundational to our great democracy.

U.S. Election Litigation

supreme court Custom

washington post logoWashington Post, Supreme Court denies Trump allies’ bid to overturn Pennsylvania election results, Robert Barnes, Dec. 8, 2020. The Supreme Court on Tuesday denied a last-minute attempt by President Trump’s allies to overturn the election results in Pennsylvania.

The court’s brief order provided no reasoning, nor did it note any dissenting votes. It was the first request to delay or overturn the results of the presidential election to reach the court.

The lawsuit was part of a blizzard of litigation and personal interventions Trump and his lawyers have waged to overturn victories by Democrat Joe Biden in a handful of key states.

Trump called the speaker of the Pennsylvania House of Representatives twice during the past week to make an extraordinary request for help reversing his loss in the state. But Speaker Bryan Cutler told the president he had no authority to step in, or to order the legislature into special session, a Cutler spokesman told The Washington Post.

Republican members of the legislature and Congress supported the Supreme Court challenge to the changes they had made to Pennsylvania’s voting system in 2019.

A group of Republican candidates led by Rep. Mike Kelly (R) challenged Act 77, a change made by the Republican-controlled legislature to allow universal mail-in ballots. Their charge was that the state constitution’s requirements on absentee ballots meant the legislature didn’t have the authority to open mail-in balloting for others.

Trump allies ask Supreme Court to intervene in Pennsylvania election

But the Pennsylvania Supreme Court said the challenge was filed too late — only after the votes were cast and the results known. Democrat Joe Biden won the state by a more than 80,000-vote margin.

The unanimous order blamed petitioners for a “complete failure to act with due diligence in commencing their facial constitutional challenge, which was ascertainable upon Act 77’s enactment.”

It added that some of the petitioners had urged their supporters to cast their ballots using the new main-in procedure.

The U.S. Supreme Court rarely intervenes in a decision of a state supreme court interpreting its own constitution and laws. But the plaintiffs charged that the system raised federal issues. Although acknowledging that it is up to states to develop election procedures, the claim was that the federal Constitution was violated if the Pennsylvania legislature expanded the mail-in procedure without proper authority from the state constitution.

Further, they claimed the individual constitutional rights of Kelly and the others were violated. Their theory was that because the Pennsylvania Supreme Court dismissed the challenge because it was filed too late, they were denied due process.

Trump by Michael Vadon Creative Commons e1486885124813

Palmer Report, Opinion: Supreme Court rejects Donald Trump’s election case; so much for Alito and SCOTUS saving him, Bill Palmer, Dec. 8, 2020. 
Today is the safe harbor deadline, meaning that after today, the presidential election results can no longer be disputed or revised. So it’s a big deal that the U.S. Supreme Court just refused to hear a case brought by Donald Trump and his allies, which sought to overturn the results in Pennsylvania.

bill palmer report logo headerNotably, this was the case that was presented to conservative Trump-friendly Supreme Court Justice Samuel Alito. So the rejection, which doesn’t note any dissenters, suggests that Alito agreed with the rejection – and that it may well have been unanimous.

So this could be the end of it. We’ll see if the Supreme Court makes any additional moves tonight, before the safe harbor deadline at the end of the day. But it looks like Donald Trump has finally, fully lost his to bid to magically overturn the election.

Trump always had literally zero chance of pulling this off, at the margins he lost by. But it’s comforting that Trump’s failure to magically overturn the election is becoming more official by the hour.

michael flynn arms folded

washington post logoWashington Post, Michael Flynn judge says pardon doesn’t mean ex-national security adviser is innocent, Spencer S. Hsu and Ann E. Marimow, Dec. 8, 2020. A federal judge dismissed Michael Flynn’s prosecution Tuesday after President Trump’s pardon, but said the act of clemency does not mean the former national security adviser, above, is innocent of lying to FBI agents about his talks with the Russian government before Trump took office.

In formally ending Flynn’s three-year legal saga, U.S. District Judge Emmet G. Sullivan said he probably would have denied the Justice Department’s controversial effort this year to drop the case, which Democrats and many legal experts said appeared to be an attempt by Attorney General William P. Barr to bend the rule of law to help a Trump ally.

emmet sullivan 2012Sullivan, left, expressed deep skepticism about the Justice Department’s stated reasons for abandoning the case, criticizing it for applying a different set of rules to Flynn, who twice pleaded guilty to lying about his contacts with Russia’s ambassador during special counsel Robert S. Mueller III’s probe of 2016 election interference.

The judge also said he was troubled by the government’s “dubious” rationales as well as aspects of its “ever-evolving justifications” that ignored applicable law, appeared to be irrelevant or to contradict prosecutors’ previous statements.

“President Trump’s decision to pardon Mr. Flynn is a political decision, not a legal one. Because the law recognizes the President’s political power to pardon, the appropriate course is to dismiss this case as moot,” Sullivan wrote, adding: “However, the pardon ‘does not, standing alone, render [Mr. Flynn] innocent of the alleged violation.’ ”

The 43-page ruling delivered the court’s final say in the politically charged case, after the Justice Department and Flynn’s defense requested immediate dismissal following Trump’s “full and unconditional pardon” on Nov. 25. The action ensured that Flynn will not face federal penalties for “any and all possible offenses” arising from facts or circumstances “in any matter related” to Mueller’s Russia probe.

Read the opinion here.

Flynn, 61, pleaded guilty in December 2017 to lying in an FBI interview and to senior White House officials about the scope of his pre-inauguration conversations with Russian Ambassador Sergey Kislyak after Moscow intervened to boost Trump in the 2016 U.S. election.

FBI logoFlynn, ousted from the White House after only 22 days on the job, was the only Trump White House adviser charged in Mueller’s investigation, and faced up to six months in prison under an initial plea deal.

But when Sullivan did not initially approve a sentence of probation that had the government’s blessing, Flynn changed defense teams and began accusing prosecutors and his former attorneys of entrapping and coercing him into pleading guilty despite his earlier sworn statements. Flynn moved in January to withdraw his guilty plea, and Barr ordered a review of the case that determined that the Justice Department should drop the prosecution.

djt handwave fileIn reversing course, the Justice Department concluded that Flynn’s lies were not material to any valid counterintelligence or criminal investigation. The government also said it doubted that it could persuade a jury to convict him since key FBI officials who led the probe into potential Trump campaign ties to Russia had been discredited.

Meet the judge who will decide Flynn’s case, one of the Justice Department’s most probing skeptics

In Tuesday’s opinion, Sullivan cast doubt on the government’s true reasons.

“As this case has progressed, President Trump has not hidden the extent of his interest in this case,” noting that Trump tweeted or retweeted about Flynn’s case at least 100 times. “Given this context, the new legal positions the government took … raise questions regarding its motives in moving to dismiss.”

Justice Department log circularThe president has repeatedly attacked the Russia investigation as a “witch hunt” and embraced Flynn’s case as a rallying cry for his reelection campaign. For more than a year, Flynn attorney Sidney Powell has called the pursuit of Flynn a corrupt effort by the FBI and “deep-state” conspirators to “get Trump,” discussing the case several times with Trump, before taking a prominent legal role last month promoting Trump’s unsuccessful claims of voter fraud.

The judge also took issue with the government saying that Flynn had a “faulty memory” in defending his misstatements.

“Mr. Flynn is not just anyone; he was the National Security Advisor to the President, clearly in a position of trust, who claimed that he forgot, within less than a month, that he personally asked for a favor from the Russian Ambassador that undermined the policy of the sitting President prior to the President-Elect taking office,” Sullivan wrote.

Sullivan declined to immediately dismiss the case upon the Barr Justice Department’s motion in May, instead tapping a retired federal judge to argue against the government’s position to help determine whether dismissal was in the public interest. The department argued that judges must dismiss prosecutions when the government and defense agree to do so, leading to an extraordinary legal battle that reached the U.S. Court of Appeals for the D.C. Circuit, and raising questions about the power of the courts to check the executive branch.

With Flynn’s pardon, those questions may now go unanswered, but Sullivan on Tuesday strongly rejected the Justice Department’s argument, saying courts are not a “rubber stamp.”

Michael Flynn Harvard 2014Prosecutors conceded at one point, he noted, that judges may act to protect the public against exceptional abuses by “rogue” prosecutors, such as the “corrupt dismissal of politically well-connected individuals.” But Sullivan said that narrow reading “fails to acknowledge the possibility that the ‘considered view of the Executive Branch as a whole’ could be contrary to the public interest.”

Similarly, the judge called the government’s “newly-minted” definition of “materiality” perplexing, “not the law” and an unexplained “about-face” from prior prosecutors’ position that Flynn’s lie’s were “absolutely material” and “went to the heart” of the FBI’s investigation.

Sullivan’s complaints echoed findings by a bipartisan Senate investigation that the Flynn-Kislyak talks were relevant to assessing “what Moscow sought to gain and the counterintelligence vulnerabilities” of Trump’s team.

The Justice Department inspector general found last year the FBI committed serious errors but had sufficient legal basis to open the criminal inquiry into whether individuals associated with Trump’s campaign cooperated with the Russians.

Palmer Report, Opinion: Judge Sullivan hears legal arguments against Trump’s pardon of Michael Flynn, Bill Palmer, Dec. 8, 2020. When Donald Trump granted a preemptive pardon to Michael Flynn, right, Palmer Report pointed out that it wasn’t a magic wand. There isn’t clear precedent as to whether preemptive pardons (for charges not yet brought) are constitutional, because they’ve never been properly challenged in court.

bill palmer report logo headerThey’ll surely be challenged during the course of Trump’s pardon spree, and we’ve been wondering if Judge Emmet Sullivan would initiate that process himself. After all, he’s been going out of his way to stop Bill Barr from sabotaging the Flynn case.

That prospect got a boost over the weekend when another Federal Judge, Reggie Walton, publicly urged Sullivan to consider ruling that Flynn’s pardon doesn’t apply to charges not yet brought. Sure enough, Sullivan announced today that he’ll hear friend of the court amicus briefs from legal experts who are arguing that Flynn’s pardon isn’t valid for charges that haven’t been brought yet.

There’s no roadmap for where this is headed. But we now have confirmation that Judge Sullivan is at least considering formal arguments against the scope of Flynn’s pardon. This could open the door for the DOJ to hit Flynn with additional criminal charges once Trump is gone

Dec. 6

Twitter, Analysis of Supreme Court requests for briefs on Pennsylivania's presidential balloting, Stephen Vladeck (right, University of Texas law professor), Dec. 6, stephen vladeck resized2020. A lot of reactions today to Justice Alito moving up the deadline for PA to respond to @MikeKellyPA's application for an emergency injunction to throw out PA's certification of its presidential electors.

Here's a quick #thread on why none of this matters—or is going to matter:

First, there's the obvious point: Even if this gambit somehow succeeds (spoiler: it won't), the worst-case scenario is that PA's electoral votes get tossed.

In that case, Biden would *still* receive 286 electoral votes when the Electoral College votes on 12/14. He needs 270.

3. Now, let's get to why the Kelly suit isn't going anywhere. First, it was dismissed by the PA Supreme Court based upon a state procedural bar ("laches"). #SCOTUS does not have jurisdiction to review state court decisions that rest on such "independent and adequate" state rules.

djt looking up

Palmer Report, Opinion: The principal reason Donald Trump belongs in prison, Robert Harrington, Dec. 6, 2020. I have infinite respect for Dr. Mary L. Trump, Donald Trump’s niece. I read with fascination her book, “Too Much and Never Enough,” and if you haven’t read it yet, I highly recommend it. We are fortunate that a woman who grew up to be a first rate trained psychologist was at Donald Trump’s elbow for so many of his formative years. She is to the history of Trump what the Watergate tapes were to Nixon, or the Zapruder film was to the Kennedy assassination. She was there, she witnessed the formation (and the formulation) of the monster. Dr. Trump has the qualities, intelligence and qualifications to relate and interpret what and how Donald Trump happened.

But when it comes to the central reason why Donald Trump must go to prison I think Dr. Trump, for all her perspicacity, widely misses the point. In fact I think most commentators on the tragedy that is Donald Trump and the Trump presidency miss the point.

bill palmer report logo headerIn a recent interview, Dr. Trump said, “It’s quite frankly insulting to be told time after time that the American people can’t handle [the prosecution of Trump] and that we just need to move on.” I can’t argue with her there. But then she gave her reason: “If anybody deserves to be prosecuted and tried, it’s Donald. [Otherwise] we just leave ourselves open to somebody who, believe it or not, is even worse than he is.”

While that’s all true enough, and I can’t dispute it, it’s not the principal reason Donald Trump belongs in prison. The principal reason Trump needs to go to jail is one I made in passing in the last article I wrote to you, brothers and sisters. So vital is that point that I think it requires it’s very own article.

djt prison palmer reportDonald Trump must go to prison not merely because we must discourage future monsters who may be worse, he must go to prison because we do not have the right not to send him there. We do not have the right to forgive him for the crimes he has committed against other people.

Think of it yourself. Imagine someone has harmed you very deeply, so deeply in fact, that the harm he has done to you has ruined your life, or destroyed the life of someone you love. Now imagine if I came along and ostentatiously forgave that person, completely absolved them of any wrongdoing they may have committed against you. Wouldn’t that seem to you the pinnacle of arrogance and conceit? Wouldn’t you wonder how dare I do such a thing and — more to the point — who the hell do I think I am that I should do such a thing, that I should so presumptuously arrogate such a power to myself? Wouldn’t you even go so far as to think I am committing a crime just as bad, or at least in the same league, as the man I so conspicuously absolved?

Of course you would. You would feel your heartfelt cry for justice he’s been ignored, rejected, smothered in a blanket of self-righteous goo and sentimental self-congratulation.

By forgiving Trump we would be committing a grave injustice to more than a quarter of million men and women Trump has murdered through negligence, the thousands of family businesses he’s ruined, the 545 immigrant children he has permanently separated from their parents, the dozens of women Trump has sexually assaulted and raped, the hundreds, or even thousands of Americans and their families Trump has put in fear of their lives with angry Tweets because they were “guilty” of insulting him, or insufficiently praising him, or not going far enough in assisting him in his criminal endeavors.

What hubris it would be for us to ignore justice for such a man! What arrogance would be ours to then slap ourselves on the backs with smug approbation and call ourselves peacemakers! We have no such right. We must, at the very least, try to send Donald Trump to prison — and we have no right not to.

Yes, we need to prevent another Trump. Yes, we need to send a message that no one, not even the president of the United States, is above the law. Yes, we need to prosecute Trump because the law demands it, that no free society can hope to survive without the rule of law. Yes, yes, a thousand times yes.

But above all, we must avenge the millions of Americans Donald Trump has harmed, the ones he harmed insolently, thoughtlessly, without remorse, without so much as an afterthought. He has harmed and killed Americans with elitist indifference, as if it’s his birthright and we are all nothing by comparison. Justice must be done. Justice cries out from the ground for the voiceless Donald Trump has destroyed. Justice must be done if only for the reason that we have no right to contemplate anything less than justice, and for that reason alone we have no choice but to do our duty. And, as ever, ladies and gentlemen, brothers and sisters, comrades and friends, stay safe.

Dec. 4

washington post logoWashington Post, Opinion: America may not be so lucky next time. Benjamin L. Ginsberg, Dec. 4, 2020. Benjamin L. Ginsberg practiced election law for 38 years. He co-chaired the bipartisan 2013 Presidential Commission on Election Administration.

The country was lucky that President Trump and his reelection campaign were so inept. He ultimately lost by a wide margin, and his challenges to the results have been farcical. His rhetoric ramped up in inverse proportion to his ability to produce evidence supporting his charges of systemic “fraud” or “rigged” elections.

The United States might not be so lucky next time. What if the 2020 election had been as close as it was in 2000, and the outcome hinged on a state (or states) with a truly narrow margin? How would the country have fared under a Trump-style assault on democracy’s foundations?

Trump’s attempts to negate millions of votes by challenging state certifications revealed cracks in those foundations. Some shoring-up is clearly needed before the next election cycle begins. A good place to start might be with the appointment of a bipartisan commission that would propose election reforms to Congress and the states. Here are half a dozen suggestions to get things started:

Revise the Electoral Count Act of 1887, a law that came perilously close to being invoked for the first time in its history. Its muddled language would not have provided clear answers to myriad crucial questions. What happens if a state submits competing slates of electors? How to determine if a “majority” of the electoral college refers to all 538 electors or only those present and voting? If choosing the president fell to the House, with a single vote for each state, could a majority of members prevent the swearing-in of enough minority members (who nonetheless represented more states) so that the majority’s presidential candidate would win? The 1887 law clearly needs updating and clarifying.

Dec. 3

ny times logoNew York Times, Opinion: Justice Amy Coney Barrett’s Choice, Linda Greenhouse (shown at right on the cover of her memoir), Dec. 3, 2020. Will she join the Supreme Court’s grievance linda greenhouse cover just a journalistconservatives? Justice Amy Coney Barrett (below left) had a choice.

She could provide the fifth vote on the Supreme Court that Justices Samuel Alito, Clarence Thomas, Neil Gorsuch and Brett Kavanaugh needed — and would not have received from the Justice Ruth Bader Ginsburg — to place a temporary block, in the name of religious freedom, on New York’s pandemic-driven limitations on church and synagogue attendance.

amy coney barrett headshot notre dame photoOr she could give that precious fifth vote to Chief Justice John Roberts in the name not only of public health but also of judicial modesty, since the most severe restrictions the Catholic and Jewish organizations were complaining about were no longer in effect and the whole case might well disappear into thin air if the Supreme Court simply stayed its hand.

History will record the choice Justice Barrett made in the court’s Nov. 25 decision as the first moment of fruition for the hopes and fears engendered by her abrupt election-eve ascension to the Supreme Court following Justice Ginsburg’s death in September.

The real significance of the decision lay in the which-side-are-you-on test it posed for the newest justice. I don’t mean the conservative side versus the liberal side. Obviously, she’s a conservative. What matters is that a month into her tenure, she chose to align herself with what I call grievance conservatism: conservatism with a chip on its shoulder, fueled by a belief that even when it’s winning, it’s losing, and losing unfairly.

ny times logoNew York Times, Opinion: I Wrote the Special Counsel Rules. Barr Has Abused Them, Neal K. Katyal (right, a law professor at Georgetown), Dec. 3, 2020. neal katyal oThere is no reason for the outgoing attorney general to appoint his preferred prosecutor for the continuing Trump-Russia inquiry.

Attorney General William Barr’s decision on Tuesday to name John Durham, the U.S. attorney for the District of Connecticut appointed by President Trump, as special counsel to investigate matters surrounding the 2016 election violates the rules for special counsels as well as fundamental democratic principles.

There may be reasons the inquiry by Mr. Durham, below left — an investigation that began in 2019 into the Trump-Russia inquiry — should continue, but there is absolutely no reason to permit an outgoing attorney general to try to install his preferred personnel at the investigation’s helm in the new administration. And it is entirely appropriate for President-elect Joe Biden to appoint all the prosecutors in his new administration, just as john durham o portrait 2 croppedhis predecessors have done.

The special counsel regulations, which I drafted in 1999 as a Justice Department staff member, were designed with the idea that some investigations require a person from outside the department to assure the public of sufficient independence.

The reason for using any of these models, especially the special counsel one, is really the opposite of Mr. Barr’s apparent goal. They are designed to insulate from politics serious investigative work that needs to be done.

So far as anyone can tell, after months of work, Mr. Durham’s effort appears not to be investigative work that requires insulation from politics but political work that Mr. Barr now wants to insulate from investigative scrutiny. That stands the special counsel model on its head and underscores why he should not receive the “special counsel” designation.

ny times logoNew York Times, Opinion: Why Prosecuting Trump Is a Very Bad Idea, Eric Posner (University of Chicago law professor and the author of “The Demagogue’s Playbook: The Battle for American Democracy From the Founders to Trump”), Dec. 3, 2020. The goal would be to renew faith in our government, but its effect would be the opposite.

As the Biden administration slowly coalesces, there have been many calls for its Justice Department to prosecute Donald Trump for any crimes he may have committed while in office. The hope, proponents of this view argue, is to establish that the president is subject to the rule of law and to deter future presidents from breaking the law.

The problem with this agenda is that there is little evidence that Mr. Trump did commit crimes as president. A conviction, given what we know now, is all but impossible. The calls to investigate him echo the president’s own calls to investigate Barack Obama, Hillary Clinton and Joe Biden based on mere speculation — calls that most people, especially liberals, rightly condemned.

The most plausible charge is that Mr. Trump obstructed justice by interfering with, and possibly lying to, Robert Mueller and his investigators. Critics also argue that Mr. Trump may have broken the law by threatening to withhold military aid to Ukraine unless the Ukrainian government announced the opening of an investigation into the Bidens. A third possible charge is that Mr. Trump corruptly mixed his financial affairs with government business.

All of these charges would face formidable difficulties in court.

Investigations into allegations that Mr. Trump was involved in credit and tax fraud and campaign finance violations before his presidency are another matter. But convictions based on such pre-presidential behavior will not reflect on his presidency nor hold lessons for future presidents.

And even these investigations run the risk of turning Mr. Trump into one of the last things we want him to be: a martyr.

Dec. 2

President Trump, left, with Chief Justice John Roberts and Attorney General William Barr and his wife at Barr's swearnig in ceremony at the White House on Feb 14, 2019 (White House photo).

President Trump, left, with Chief Justice John Roberts and Attorney General William Barr and his wife at Barr's swearing in ceremony at the White House on Feb 14, 2019 (White House photo).

ny times logoNew York Times, Barr Admits Finding No Evidence of Fraud That Could Have Swayed Election,New York Times, Barr Admits Finding No Evidence of Fraud That Could Have Swayed Election, Katie Benner, Emily Cochrane, Glenn Thrush and Michael S. Schmidt, Dec. 2, 2020 (print ed.). Attorney General William P. Barr said Tuesday that the Justice Department has not uncovered voting fraud at a scale that could have affected the results of the presidential election, reaffirming Joseph R. Biden Jr.’s win despite President Trump’s groundless claims that he was defrauded.

Mr. Barr’s comments, in an interview with The Associated Press, were a prominent repudiation of Mr. Trump’s baseless assertions and came days after the Justice Department log circularpresident implied that the Justice Department and the F.B.I. may have played a role in an election fraud.

Mr. Barr’s comments came as another Trump ally signaled he was ready to move on after a surreal month of lawsuits, conspiracy theories and denials by the president of a loss that has proved durable and decisive.

Senator Mitch McConnell, Republican of Kentucky and the majority leader, who has refused to recognize Mr. Trump’s election loss, on Tuesday moved closer to overtly accepting the reality that Mr. Biden would be in the White House next year, while discussing the prospects for more pandemic stimulus in 2021.

william barr resized profileTaken together, Mr. Barr’s direct declaration and Mr. McConnell’s indirect reference to Mr. Biden’s new administration represent a major, if not unexpected, blow to the president’s postelection effort to change the results from two men whom he has often relied on for political cover.

Moments after Mr. Barr’s comments were made public, Rudolph W. Giuliani, Mr. Trump’s lawyer, emailed a statement on campaign letterhead, claiming — again without evidence — that he had found “ample” proof of national voter fraud sufficient to swing the election to Mr. Biden.

“With the greatest respect to the Attorney General, his opinion appears to be without any knowledge or investigation of the substantial irregularities and evidence of systemic fraud,” wrote Mr. Giuliani late Tuesday.

Amid the fallout from Mr. Barr’s statements about the election, the Justice Department also announced that he had given extra protection to the federal prosecutor examining the origins of the investigation into links between Mr. Trump’s campaign and Russia.

Mr. Barr appointed the prosecutor, John H. Durham, as a special counsel, a move that makes it more difficult for the Biden administration to fire him without providing evidence of misconduct.

Mr. Durham has been conducting the investigation for a year and a half, and Mr. Trump and his allies had been banking on him uncovering wrongdoing by Obama-era F.B.I. officials to help the president’s political fortunes in the lead up to last month’s election. But Mr. Durham has charged only one person, an F.B.I. lawyer who pleaded guilty to doctoring an email.

washington post logoWashington Post, Opinion: Trump fired me for saying this, but I’ll say it again: The election wasn’t rigged, Christopher Krebs, Dec. 2, 2020. Christopher Krebs is the former director of the Cybersecurity and Infrastructure Security Agency.

chris krebs oOn Nov. 17, I was dismissed as director of the Cybersecurity and Infrastructure Security Agency, a Senate-confirmed post, in a tweet from President Trump after my team and other election security experts rebutted claims of hacking in the 2020 election. On Monday, a lawyer for the president’s campaign plainly stated that I should be executed. I am not going to be intimidated by these threats from telling the truth to the American people.

Three years ago, I left a comfortable private-sector job to join, in the spirit of public service, the Department of Homeland Security. At the time, the national security community was reeling from the fallout of the brazen Russian interference in the 2016 presidential election. I wanted to help.

This point cannot be emphasized enough: The secretaries of state in Georgia, Michigan, Arizona, Nevada and Pennsylvania, as well officials in Wisconsin, all worked overtime to ensure there was a paper trail that could be audited or recounted by hand, independent of any allegedly hacked software or hardware.

That’s why Americans’ confidence in the security of the 2020 election is entirely justified. Paper ballots and post-election checks ensured the accuracy of the count.

washington post logoWashington Post, Opinion: Lawyers should not be complicit in Trump’s attack on democracy, By 25 former presidents and the former CEO of the D.C. Bar, Dec. 2, 2020 (print ed.). It is deeply troubling that so many lawyers and law firms have let themselves be used in this corrosive undermining of confidence in the democratic process.

The period since the election has seen a destructive and unwarranted series of abusive lawsuits filed by some members of the American legal profession. While lawyers must represent their clients with determination and zeal, no lawyer may seek, on behalf of any client, to subvert democratic institutions or burden the courts with claims that the lawyer knows are frivolous. As former presidents and a former CEO of the District of Columbia Bar, which has more than 100,000 members from every state, we think that it is important to explain that it did not have to be this way, and it should not have been.

Since the election, instead of telling their client to stop, some lawyers — too many — have leveled attacks on the integrity of the electoral process, basing their assertions on unfounded allegations of “voter fraud” or “ballot tampering.”

Lawyers for President Trump have filed at least three dozen lawsuits in various states, charging grave abuses of the electoral process. Their goal has been to scuttle the process for counting and certifying the vote, thereby expunging millions of votes. If any legitimate evidence to support the challenges existed, we would defend the lawyers in raising the pertinent legal issues. But in the absence of any meaningful evidence, we must condemn the abuse of the judicial system to subvert the democratic process.

Fortunately, federal and state judges, regardless of prior political affiliation, have quickly and courageously rebuffed these groundless lawsuits. But it is deeply troubling that so many lawyers and law firms have been willing to sign their names to these filings, letting themselves be used in this corrosive undermining of confidence in the democratic process. Members of the bar have an obligation to refrain from undertaking a matter for a client when the lawyer knows that the purpose of the lawsuit is purely political and lacks concrete factual support or plausible legal merit.

ivanka eric don jr trump Custom

 ny times logoNew York Times, Trump Has Discussed Pardons for 3 Children, Kushner and Giuliani, Maggie Haberman and Michael S. Schmidt, Dec. 2, 2020 (print ed.). President Trump has discussed with advisers whether to grant pre-emptive pardons to his children (shown above), to his son-in-law and to his personal lawyer Rudolph W. Giuliani, and talked with Mr. Giuliani about pardoning him as recently as last week, according to two people briefed on the matter.

Mr. Trump has told others that he is concerned that a Biden Justice Department might seek retribution against the president by targeting the oldest three of his five children — Donald Trump Jr., Eric Trump and Ivanka Trump — as well as Ms. Trump’s husband, Jared Kushner, a White House senior adviser.

djt rudy giulianiDonald Trump Jr. had been under investigation by Robert S. Mueller III, the special counsel, for contacts that the younger Mr. Trump had had with Russians offering damaging information on Hillary Clinton during the 2016 campaign, but he was never charged. Mr. Kushner provided false information to federal authorities about his contacts with foreigners for his security clearance, but was given one anyway by the president.

The nature of Mr. Trump’s concern about any potential criminal exposure of Eric Trump or Ivanka Trump is unclear, although an investigation by the Manhattan district attorney into the Trump Organization has expanded to include tax write-offs on millions of dollars in consulting fees by the company, some of which appear to have gone to Ms. Trump.

Presidential pardons, however, do not provide protection against state or local crimes.

Mr. Giuliani’s potential criminal exposure is also unclear, although he was under investigation as recently as this summer by federal prosecutors in Manhattan for his business dealings in Ukraine and his role in ousting the American ambassador there. The plot was at the heart of the impeachment of Mr. Trump.

The speculation about pardon activity at the White House is churning furiously, underscoring how much the Trump administration has been dominated by investigations and criminal prosecutions of people in the president’s orbit. Mr. Trump himself was singled out by federal prosecutors as “Individual 1” in a court filing in the case that sent Michael D. Cohen, his former lawyer and fixer, to prison.

The discussions between Mr. Trump and Mr. Giuliani occurred as the former New York mayor has become one of the loudest voices pushing baseless claims of widespread fraud in the 2020 election, which Mr. Trump still proclaims publicly that he won. Many of Mr. Trump’s longtime aides have refused to do his bidding to try to overturn an election that President-elect Joseph R. Biden Jr. won by nearly seven million votes. But Mr. Giuliani has repeatedly thrust himself into the spotlight to cast doubt on the results, which has ingratiated him with the president.

gabriel sterling resized screenshot

ny times logoNew York Times, ‘It Has to Stop’: Georgia Republican Lashes Out at Trump, Richard Fausset, Dec. 2, 2020 (print ed.). A top-ranking election official in the state criticized the president for failing to condemn threats of violence against election workers. Gabriel Sterling, shown above in a screenshot, a voting system official in Georgia, harshly criticized the president for failing to condemn threats of violence against people overseeing the election in his state.

In one of the most striking rebukes to President Trump since he launched his baseless attacks on the American electoral process, a top-ranking Georgia election official lashed out at the president on Tuesday for failing to condemn threats of violence against people overseeing the voting system in his state.

republican elephant logo“It has to stop,” Gabriel Sterling, a Republican and Georgia’s voting system implementation manager, said at an afternoon news conference at the state Capitol, his voice shaking with emotion. “Mr. President, you have not condemned these actions or this language.”

He added: “This is elections. This is the backbone of democracy, and all of you who have not said a damn word are complicit in this. It’s too much.”

Mr. Sterling’s outburst of anger and frustration came amid a sustained assault on Georgia’s election process by Mr. Trump as he seeks to reverse his loss to his Democratic rival, former Vice President Joseph R. Biden Jr. Mr. Sterling, who previously said he had received threats himself, said that threats had also been made against the wife of his superior, Brad Raffensperger, the Republican secretary of state.

“Mr. President, it looks like you likely lost the state of Georgia,” Mr. Sterling said. He added that the president needed to “step up” and say, “Stop inspiring people to commit potential acts of violence. Someone is going to get hurt, someone is going to get shot, someone is going to get killed. And it’s not right.”

Mr. Sterling also called on the state’s two Republican senators, David Perdue and Kelly Loeffler, to condemn the rhetoric that he said was getting dangerously out of hand. The two senators, both Trump loyalists, have called for Mr. Raffensperger to resign.



Nov. 30

ny times logoNew York Times, Justice Barrett’s Vote Could Tilt the Supreme Court on Gun Rights, Adam Liptak, right, Nov. 30, 20200 (print ed.). Conservative justices are adam liptakon alert for a promising case in which to expand Second Amendment rights. Justice Amy Coney Barrett could shift the balance.

A Second Amendment case decided last week by the federal appeals court in Philadelphia is a promising candidate for Supreme Court review, not least because it presents an issue on which Justice Barrett, left, has already taken a stand.

amy coney barrett headshot notre dame photoIt concerns Lisa M. Folajtar, who would like to buy a gun. But she is a felon, having pleaded guilty to tax evasion, which means under federal law she may not possess firearms.

She sued, arguing that the law violated her Second Amendment rights. A divided three-judge panel of appeals court rejected her challenge, saying that committing a serious crime has consequences. It can lead to losing the right to vote, to serve on a jury — or to have a gun.

The ruling adopted the position of the Trump Justice Department. “The right to keep and bear arms is analogous to other civic rights that have historically been subject to forfeiture by individuals convicted of crimes, including the right to vote, the right to serve on a jury and the right to hold public office,” lawyers for Attorney General William P. Barr told the appeals court.

stephanos bibasIn dissent, Judge Stephanos Bibas, right, a former law professor appointed to the court by President Trump (and the author of a scathing decision on Friday rejecting the president’s challenge to the election results in Pennsylvania), wrote that the framers of the Constitution would not have allowed lawmakers to bar felons convicted of nonviolent crimes from owning guns.

“Lisa Folajtar asks us to treat her as an equal member of society,” he wrote. “Though her tax-fraud conviction affects some of her privileges, it does not change her right to keep and bear arms.”

Nov. 29

washington post logoWashington Post, 20 days of fantasy and failure: Inside Trump’s quest to overturn the election, Philip Rucker, Ashley Parker, Josh Dawsey and Amy Gardner, Nov. 29, 2020 (print ed.). With his denial of his loss to Joe Biden, President Trump endangered America’s democracy and threatened to undermine national security and public health. All the while, he largely abdicated the responsibilities of the job he was fighting so hard to keep.

washington post logoWashington Post, Pennsylvania Supreme Court dismisses lawsuit against mail ballots with prejudice in another defeat for Trump, Elise Viebeck, Nov. 29, 2020 (print ed.). The Pennsylvania Supreme Court dismissed with prejudice a Republican lawsuit seeking to invalidate more than 2.5 million votes cast by mail in the general election, the latest in a string of legal defeats for the GOP as President Trump fails to undo his losses in key battleground states.

Justices on the state high court ruled unanimously late Saturday that Republican petitioners waited too long to file their suit challenging Act 77, the 2019 law that established universal mail voting in Pennsylvania. Trump allies had asked the court to invalidate all votes cast by mail in the most recent election or direct the majority-Republican legislature to choose a slate of presidential electors. The ruling with prejudice means that the plaintiffs are barred from bringing another action on the same claim.

The court’s written order called the latter option “extraordinary,” noting that it would disenfranchise 6.9 million voters.

“The want of due diligence demonstrated in this matter is unmistakable,” the justices wrote, noting that the lawsuit was filed “more than one year” after no-excuse mail voting was enacted in Pennsylvania. The order blamed petitioners for a “complete failure to act with due diligence in commencing their facial constitutional challenge, which was ascertainable upon Act 77’s enactment.”

Concurring, Justice David N. Wecht noted that the GOP petitioners “failed to allege that even a single mail-in ballot was fraudulently cast or counted.”

Legal experts had predicted little chance of success for the suit, which also sought to block certification of election results. Trump and his allies have gained no substantive traction with more than two dozen cases trying to undermine President-elect Joe Biden’s win since Election Day.

The ruling followed a procedural setback for the petitioners on Wednesday, when a temporary order blocking further certification of election results was stayed on appeal from state officials who already had formalized Biden’s win the previous day. The state asked the Pennsylvania Supreme Court to exercise extraordinary jurisdiction in the case, a request it granted as part of Saturday night’s order.

washington post logoWashington Post, For Trump advocate Sidney Powell, a playbook steeped in conspiracy theories, Aaron C. Davis, Josh Dawsey, Emma Brown and Jon Swaine, Nov. 29, 2020 (print ed.). The appellate lawyer has emerged as a key voice on the far right, becoming a leading purveyor of outlandish allegations about the election.

She zipped through classes at the University of North Carolina, earning her diploma in less than two years. She added a law degree and in her early 20s became, she has often said, the youngest federal prosecutor in the country.

And when Sidney Powell — then a Democrat — moved into private practice, she co-wrote a paper hailed as a “manual” for deciphering sometimes-arcane appellate rules, salting in advice for fellow attorneys: Never “slant” the truth to benefit a client. “To write anything less than an accurate statement of facts can cost an attorney credibility with the court,” she wrote.

sidney powellFast forward two decades — through a bitter case she says shook her faith in the U.S. justice system — and there was Powell, right, at a lectern at the headquarters of the Republican National Committee, introduced as an attorney representing President Trump.

At the Nov. 19 news conference, before a national television audience, she asserted that “communist money,” the late Venezuelan president Hugo Chávez and a manipulated computer algorithm were all connected in a secret plot that had altered potentially millions of ballots and stolen the election from Trump.

Powell did not stop there. In an interview two days later with the conservative outlet Newsmax, she said she had been given evidence — which she said she could not disclose — that Georgia Gov. Brian Kemp, a Republican and an ally of the president, had taken bribes and conspired to orchestrate Trump’s defeat. Nationwide, she estimated that “thousands” of local elections officials knowingly helped carry out the master scheme to tamper with ballots. In fact, Powell claimed, if anyone bothered to look, they’d probably find that U.S. elections had been rigged for decades.

In important places, the headspinning allegations did not land well.

Trump watched from the White House as his usual cast of sympathetic proxies — including Fox News’s Tucker Carlson and former New Jersey governor Chris Christie — turned on Powell, according to an official familiar with the events, who like others interviewed for this report spoke on the condition of anonymity to describe confidential or private interactions at the White House and at Trump’s campaign offices. On ABC’s Sunday talk show, Christie said Powell’s comments had tipped the president’s legal efforts to challenge the outcome of the election into a “national embarrassment.”

In calls to the White House, several GOP senators warned that Powell seemed unhinged, two officials said.

ny times logoNew York Times, Even as Trump Claimed Fraud, These Republicans Didn’t Bend, Peter Baker and Kathleen Gray, Nov. 29, 2020 (print ed.). They refuted conspiracy theories, certified results, dismissed lawsuits and repudiated a president of their own party.

If the president hoped Republicans across the country would fall in line behind his false and farcical claims that the election was somehow rigged on a mammoth scale by a nefarious multinational conspiracy, he was in for a surprise. Republicans in Washington may have indulged Mr. Trump’s fantastical assertions, but at the state and local level, Republicans played a critical role in resisting the mounting pressure from their own party to overturn the vote after Mr. Trump fell behind on Nov. 3.

The three weeks that followed tested American democracy and demonstrated that the two-century-old system is far more vulnerable to subversion than many had imagined even though the incumbent president lost by six million votes nationwide. But in the end, the system stood firm against the most intense assault from an aggrieved president in the nation’s history because of a Republican city clerk in Michigan, a Republican secretary of state in Georgia, a Republican county supervisor in Arizona and Republican-appointed judges in Pennsylvania and elsewhere.

They refuted conspiracy theories, certified results, dismissed lawsuits and repudiated a president of their own party, leaving him to thunder about a supposed plot that would have had to include people who had voted for him, donated to him or even been appointed by him. The desperate effort to hang onto office over the will of the people effectively ended when his own director of the General Services Administration determined that Joseph R. Biden Jr. stephanos bibasis the president-elect and a judge Mr. Trump put on the bench chastised him for ludicrous litigation.

“Free, fair elections are the lifeblood of our democracy,” Judge Stephanos Bibas, right, appointed by Mr. Trump in 2017, wrote for a three-judge panel of the Third Circuit Court of Appeals in Philadelphia on Friday as it dismissed the latest of dozens of legal claims filed by Mr. Trump and his allies. “Charges of unfairness are serious. But calling an election unfair does not make it so. Charges require specific allegations and then proof. We have neither here.”


ny times logoNew York Times, Top Contenders for Biden’s Cabinet Draw Fire From All Sides, Michael D. Shear and Jonathan Martin, Nov. 29, 2020 (print ed.). There are leading candidates and dark horses. There are potential roadblocks from progressives and conservatives. And there are competing factions.

Aides to Mr. Biden who are managing the selection process are revealing little about whom he intends to choose. And yet, as is typical in Washington in the early days of a transition, the names of those the president-elect is said to be considering are a frequent source of discussion. This time, the gossip is spreading via Zoom calls, Twitter posts and encrypted text messages sent by lawmakers, lobbyists and political consultants.

Whom Mr. Biden will tap to be the next attorney general is among the most talked about — and politically fraught — decisions that the president-elect will make as civil rights issues roil the country and some Democrats expect investigations into President Trump and his associates.

sally yates oSally Q. Yates, left, the deputy attorney general in the final years of the Obama administration, had long been considered the front-runner. Mr. Biden is close to her and has told friends that he could imagine her as the nation’s top law enforcement official. But some advisers fear that Republicans would block her nomination because of her refusal to defend Mr. Trump’s first travel ban and her role in the early stages of the investigations into his campaign and associates.

Mr. Biden could instead pick Lisa Monaco, the former homeland security adviser for President Barack Obama who was a finalist in 2013 to be deval patrick oF.B.I. director. And like Ms. Yates, she worked well with Mr. Biden when he was vice president.

But both women are up against Deval Patrick, right, the former Massachusetts governor who served as the head of the department’s civil rights division in the Clinton administration and would be the second Black man to be attorney general.

us senate logoThe president-elect’s aides see civil rights issues as a far more deep-seated problem than simply one that has arisen because of Mr. Trump. The aides believe that Mr. Patrick’s experience at the NAACP Legal Defense and Educational Fund Inc. and his stewardship of the department’s civil rights division positions him to take on that issue.

Others around the president-elect are not eager to reward Mr. Patrick, who jumped into the Democratic nomination last year to challenge Mr. Biden as a politically moderate answer to the party’s more liberal candidates.

Xavier Becerra, the attorney general of California, is also under consideration for attorney general.

ap logoAssociated Press via Washington Post, High court takes up census case, as other count issues loom, Mike Schneider and Mark Sherman, Nov. 29, 2020 (print ed.). President Donald Trump’s attempt to exclude people living in the country illegally from the population count used to divvy up congressional seats is headed for a post-Thanksgiving Supreme Court showdown.

The administration’s top lawyers are hoping the justices on a court that includes three Trump appointees will embrace the idea, rejected repeatedly by lower courts. It’s the latest, and likely the last, Trump administration hard-line approach to immigration issues to reach the high court. Arguments will take place on Monday by telephone because of the coronavirus pandemic.

Even as the justices weigh a bid to remove, for the first time, millions of noncitizens from the population count that determines how many seats each state gets in the House of Representatives as well as the allocation of some federal funding, experts say other issues loom large for the 2020 census as it heads into unchartered territory over deadlines, data quality and politics.

A host of novel questions outside of the court’s eventual decision could determine the final product of the nation’s once-a-decade head count, including whether the incoming Biden administration would do anything to try to reverse decisions made under Trump.

Among other questions: Will the Census Bureau be able to meet a year-end deadline for turning in the numbers used for apportionment, the process of dividing up congressional seats among the states? Will the quality of the census data be hurt by a shortened schedule, a pandemic and natural disasters? Could a Democratic-controlled House reject the numbers from the Republican administration if House leaders believe they are flawed? Will a lame-duck Senate pass legislation that could extend deadlines for turning in census numbers?

Nov. 27

  us dc federal courthouse Small

The Barrett Prettyman, Jr. federal courthouse in Washington, DC.

washington post logoWashington Post, Opinion: Emmet Sullivan’s handling of the Michael Flynn case is vindicated, Elliot Williams, Nov. 27, 2020. Elliot Williams was a deputy assistant attorney general at the Justice Department from 2013 to 2017.

President Trump’s pardon of former national security adviser Michael Flynn didn’t merely save one man from going to federal prison. Far more importantly, the pardon demonstrated the wisdom of U.S. District Judge Emmet G. Sullivan’s refusal to dismiss the case against Flynn. In the end, the judge’s steadfastness saved the Justice Department from itself — or at least from its attorney general.

Michael Flynn Harvard 2014Flynn, right, was one of six associates of the president who were investigated and charged with federal crimes as part of special counsel Robert S. Mueller III’s inquiry into Russian interference in the 2016 campaign. In open court, Flynn entered a knowing, voluntary and intelligent guilty plea to a felony charge for lying about his substantive contacts with the Russian ambassador to the United States. However, last May, acting on instructions from Attorney General William P. Barr, the Justice Department did a startling about-face in the case, seeking to dismiss it by arguing in court that prosecutors should never have brought the case in the first place.

Enter Sullivan, below left, — a judge before whom I have appeared, and who I can attest is not one to suffer fools. He declined to dismiss the case, instead bringing in an outside adviser who argued that the Justice Department’s argument smelled curiously like pretext for seeking to dismiss emmet sullivan 2012the case to benefit a political ally of the president.

Sullivan’s healthy skepticism of the Justice Department’s arguments ensured that the branches of our government functioned as they were supposed to, and that no one branch was allowed to hide from the costs of its actions. The president and his allies have repeatedly attacked the special counsel’s investigation from its earliest days, characterizing it as a partisan witch hunt fixated on Trump’s undoing. Once Flynn was charged, it was only a matter of when, not if, the president would pardon him.

The decision to withdraw charges can only be explained, then, as an attempt by the president and attorney general to produce the effect of a pardon (that is, vacating a criminal conviction), without incurring any of the natural political costs of granting a pardon.

Presidential acts of clemency can carry political costs: George W. Bush’s commutation of I. Lewis “Scooter” Libby’s prison term, Bill Clinton’s pardon of Marc Rich, and George H.W. Bush’s pardon of Caspar Weinberger still linger over the three presidents’ legacies. Such is the cost of exercising unreviewable power.

However, passing the Flynn pardon off onto the Justice Department would have been an attempt to deputize prosecutors in carrying out a political favor for the president. It would have hidden political cronyism in the dry, apolitical packaging of legalese.

Sullivan had to have known this. By rejecting the Justice Department’s attempts to get out of the case, he was not digging in to stick it to a defendant he might have thought was guilty. He was protecting the justice system as an institution, ensuring that it wasn’t perverted by the Trump administration and the attorney general.

amy coney barrett cnbc

ny times logoNew York Times, Analysis: Midnight Ruling Exposes Rifts at a Supreme Court Transformed by Trump, Adam Liptak, right, Nov. 27, 2020 (print ed.). The justices issued six opinions, adam liptakseveral of them unusually bitter, in upholding challenges from churches and synagogues to state pandemic restrictions on religious services. A few minutes before midnight on Wednesday, the nation got its first glimpse of how profoundly President Trump had transformed the Supreme Court.

Just months ago, Chief Justice John G. Roberts Jr. was at the peak of his power, holding the controlling vote in closely divided cases and almost never finding himself in dissent. But the arrival of Justice Amy Coney Barrett late last month, which put a staunch conservative in the seat formerly held by the liberal mainstay, Justice Ruth Bader Ginsburg, meant that it was only a matter of time before the chief justice’s leadership would be tested.

On Wednesday, Justice Barrett (shown above) dealt the chief justice a body blow. She cast the decisive vote in a 5-to-4 ruling that rejected restrictions on religious services in New York imposed by Gov. Andrew M. Cuomo to combat the coronavirus, shoving the chief justice into dissent with the court’s three remaining liberals. It was one of six opinions the court issued on Wednesday, spanning 33 pages and opening a window on a court in turmoil.

The ruling was at odds with earlier ones in cases from California and Nevada issued before Justice Ginsburg’s death in September. Those decisions upheld restrictions on church services by 5-to-4 votes, with Chief Justice Roberts in the majority. The New York decision said that Mr. Cuomo’s strict virus limits — capping attendance at religious services at 10 people in “red zones” where risk was highest, and at 25 in slightly less dangerous “orange zones” — violated the First Amendment’s protection of the free exercise of religion.

Wednesday’s ruling was almost certainly a taste of things to come. While Justice Ginsburg was alive, Chief Justice Roberts voted with the court’s four-member liberal wing in cases striking down a restrictive Louisiana abortion law, blocking a Trump administration initiative that would have rolled back protections for young immigrants known as Dreamers, refusing to allow a question on citizenship to be added to the census and saving the Affordable Care Act.

Chief Justice Roberts is fundamentally conservative, and his liberal votes were rare. But they reinforced his frequent statements that the court is not a political body. The court’s new and solid conservative majority may send a different message.

That said, the court’s dynamics can be complicated, and not all decisions break along predictable lines. For instance, while Chief Justice Roberts has lost his place at the court’s ideological center, his replacement, Justice Brett M. Kavanaugh, Mr. Trump’s second appointee, values consensus and may turn out to be an occasional ally.

 ny times logoNew York Times, Senate Democrats Face Power Struggle for Top Judiciary Job, Carl Hulse, Nov. 27, 2020 (print ed.). Senators Richard J. Durbin and Sheldon Whitehouse are vying to be the top Democrat on the panel that controls judicial nominations, reflecting a broader debate among activists about how to wield power.

As soon as Senator Richard J. Durbin of Illinois learned officially on Monday that there would be a Democratic opening at the top of the Judiciary Committee, he was on the phone to his colleagues trying to nail down their support for the position.

dick durbin speaking screenshot“Never take anything for granted,” Mr. Durbin, right, said of his bid to replace Senator Dianne Feinstein of California, who stepped aside as the senior Democrat on the panel under intense pressure from progressive activists who deemed her insufficiently aggressive for the job. “I have been through these contests before.”

One fellow Democrat whom Mr. Durbin did not talk to was Senator Sheldon Whitehouse of Rhode Island, left, who made clear by the next afternoon that he was also interested in the job. Some of the same progressive activists who pressed to shove Ms. Feinstein aside said they would be backing him.

sheldon whitehouseThe competition set up a rare internal power struggle that reflected broader disputes among Democrats over the direction and approach of their party in a new Congress. As they sort through the results of the election, which handed them control of the White House but left their hopes of taking the Senate hanging by a thread, some are pushing for a new, more combative style and generational change.

Depending on the results of two Senate runoffs in Georgia in January, whoever wins the battle for the post will be either the chairman of the panel or the senior Democrat, with a crucial role to play on a panel that Republicans have turned into a judicial confirmation assembly line.

Mr. Durbin is the next in line behind Ms. Feinstein on the committee, and Democrats generally adhere to seniority when awarding such posts. The tension in this case partly comes from the fact that Mr. Durbin is already the No. 2 leader and holds an important subcommittee chairmanship on the Appropriations panel, which controls federal spending. To some, he is trying to hoard power, potentially at the expense of his own effectiveness in either job.

Members of both parties have viewed Mr. Durbin as an effective advocate for committee Democrats who have chafed at the way Republicans have jammed through nominees in recent years.

“Believe me, I wouldn’t take this on if I didn’t think I could do the job,” he said in an interview this week.

Under Republican control since 2015, the committee has been the focal point for that party’s drive to confirm more than 220 conservative federal judges, including three Supreme Court justices and 53 appeals court judges.

Against that backdrop, Mr. Whitehouse, 65, who declined to be interviewed for this article, has charted out how a network of advocacy groups has taken money from undisclosed donors to support the confirmation of conservative judges who are seen as potentially sympathetic to their interests.

During the confirmation hearing for Judge Amy Coney Barrett in October, Mr. Whitehouse devoted his first round of questioning to laying out his case and telling her that she needed to understand the “forces outside of this room who are pulling strings and pushing sticks and causing the puppet theater to react.”

Nov. 26

michael flynn djt

ny times logoNew York Times, Trump Pardons Flynn, Ending Case His Justice Dept. Sought to Shut Down, Charlie Savage, Nov. 26, 2020 (print ed.). Michael Flynn, above left, the president’s former national security adviser, twice pleaded guilty to lying to investigators about conversations with Russia’s ambassador.

The pardon brings to an end the drawn-out legal saga of Mr. Flynn, who was the only White House official to be convicted as part of the Trump-Russia inquiry.
President Trump pardoned on Wednesday his former national security adviser Michael T. Flynn, who had twice pleaded guilty to lying to the F.B.I. about his conversations with a Russian diplomat and whose prosecution Attorney General William P. Barr tried to shut down.

“It is my Great Honor to announce that General Michael T. Flynn has been granted a Full Pardon,” Mr. Trump wrote on Twitter.

The presidential pardon brings to an end the drawn-out legal saga of Mr. Flynn. The Justice Department had moved in the spring to withdraw the charge against him after a public campaign by Mr. Trump and his allies, but the judge overseeing the case, Emmet G. Sullivan, had held up the request to scrutinize its legitimacy.

Though Mr. Trump had said months ago that he was “strongly considering” pardoning Mr. Flynn and was said to be planning for it after he lost the election, the intervention by Mr. Barr had held out the possibility that his administration could end the prosecution of a presidential favorite without requiring Mr. Trump to take explicit political responsibility for the act.

But as the case has lingered — delayed first by Mr. Flynn’s unsuccessful attempt to get an appeals court to block Judge Sullivan from reviewing the basis for Mr. Barr’s move, and then by further weeks of inaction from the judge — Mr. Trump ultimately moved to do so anyway.

Mr. Flynn was the only White House official to be convicted as part of the Trump-Russia investigation that was completed by the special counsel, Robert S. Mueller III. Under Mr. Trump and Mr. Barr, the administration has been trying to discredit and dismantle that inquiry. Mr. Trump also commuted the sentence of his longtime friend Roger J. Stone Jr. on seven felonies in a case brought by prosecutors working for Mr. Mueller.

ny times logoNew York Times, White House Weighs Pardon Blitz Before Trump’s Exit, Kenneth P. Vogel and Eric Lipton, Nov. 26, 2020 (print ed.). President Trump has so far granted 28 pardons, which wipe out convictions, and 16 commutations, which reduce prison sentences.

Political allies and associates are starting to press for clemency as President Trump also considers extending his criminal justice overhaul. Political allies and associates are starting to press for clemency as the president also considers extending his criminal justice overhaul by commuting lengthy sentences for other offenders.

It’s not just Michael T. Flynn. The White House is weighing a wave of pardons and commutations by President Trump in his final weeks in office, prompting jockeying by a range of clemency seekers and their representatives, including more allies of Mr. Trump.

Among those hoping for pardons are two former Trump campaign advisers, Rick Gates and George Papadopoulos, who like Mr. Flynn, the former national security adviser who was pardoned on Wednesday by Mr. Trump, were convicted in cases stemming from the special counsel’s Russia investigation.

But it is not just the well-connected and wealthy who could benefit from one of Mr. Trump’s final exercises of executive power, lawyers in contact with the administration said.

Several groups that have pushed for a criminal justice overhaul are working with an ad hoc White House team under the direction of Jared Kushner, Mr. Trump’s son-in-law and adviser, with a goal of announcing as many as hundreds of commutations for offenders now in jail for crimes ranging from nonviolent drug convictions to mail fraud and money laundering.

The end of any presidential administration is a time for intense lobbying related to pardons.

But in Mr. Trump’s case, it extends to his own personal and political considerations, his lingering bitterness over the Russia inquiry and his transactional approach to governing.

The sheer number of people in the president’s circle to have gotten in trouble with the law has also made the question of pardons especially fraught. In addition to Mr. Flynn, Mr. Gates and Mr. Papadopoulos, Trump aides and associates who have been convicted include Michael D. Cohen, Mr. Trump’s former lawyer; Roger J. Stone Jr., his longtime friend and adviser; and Paul Manafort, his former campaign chairman.

Others in the president’s circle to face federal charges include Stephen K. Bannon, his former strategist, who was indicted in August on charges of defrauding donors to a campaign to support Mr. Trump’s plans to build a wall along the border with Mexico, and Elliott Broidy, a top fund-raiser, who pleaded guilty last month in a foreign lobbying case.

A blitz of late pardons or commutations for federal crimes — over which presidents have unchecked power — is seen by some criminal justice reform activists as another way to build his record on that issue.

Far more explosive in political terms is the possibility of pardons or commutations for allies, associates or even himself, reflecting Mr. Trump’s oft-stated belief that his presidency was undermined by law enforcement investigations, including the special counsel’s inquiry.

washington post logoWashington Post, Supreme Court blocks limits on religious services in N.Y., Robert Barnes, Nov. 26, 2020. Religious organizations said they were illegally targeted by pandemic-related restrictions imposed to combat spiking coronavirus cases. The 5-to-4 order was the first show of solidified conservative strength on the court since Justice Amy Coney Barrett’s confirmation.

The Supreme Court’s new conservative majority late Wednesday night sided with religious organizations in New York that said they were illegally targeted by pandemic-related restrictions imposed by Gov. Andrew M. Cuomo to combat spiking coronavirus cases.

The 5-to-4 order was the first show of solidified conservative strength on the court since the confirmation of Justice Amy Coney Barrett, whom President Trump chose to replace liberal Justice Ruth Bader Ginsburg following her death in September. The decision differed from the court’s previous practice of deferring to local officials on pandemic-related restrictions, even in the area of constitutionally protected religious rights.

“Even in a pandemic, the Constitution cannot be put away and forgotten,” said the unsigned opinion granting a stay of the state’s orders. “The restrictions at issue here, by effectively barring many from attending religious services, strike at the very heart of the First Amendment’s guarantee of religious liberty.”

The limits were severe, at times capping worship services at only 10 people. But the state said they were necessary to deal with “hot spots” of virus outbreaks.

The Supreme Court’s order was issued just before midnight, and five justices wrote separately.

Chief Justice John G. Roberts Jr., who had been the court’s pivotal member in previous emergency applications seeking relief from virus-related restrictions, dissented along with the court’s three liberal members.

He noted that while the court was considering the petitions, Cuomo, a Democrat, had eased the restrictions, and thus there was no need for the court to intervene now.

“It is a significant matter to override determinations made by public health officials concerning what is necessary for public safety in the midst of a deadly pandemic,” Roberts wrote for himself.

Justice Sonia Sotomayor said the court was intervening where it should not.

washington post logoWashington Post, GOP effort to invalidate more than 2.5 million votes in Pennsylvania dealt another setback, Elise Viebeck and Josh Dawsey, Nov. 26, 2020 (print ed.). Republicans faced another procedural setback in a Pennsylvania lawsuit seeking to invalidate more than 2.5 million votes, as a temporary order blocking further certification of election results was stayed on appeal from state officials who had already formalized President-elect Joe Biden’s win the day before.

Legal experts said the case had little chance of success, much like the other last-ditch GOP election lawsuits pending in battleground states. Republicans have gained no substantive traction across more than two dozen cases trying to undo results favoring Biden since Election Day, and as of Tuesday, four of six states where President Trump tried to overturn the outcome have certified Biden’s win.

Palmer Report, Opinion: Robert Mueller’s screw-up with the Michael Flynn case just keeps looking worse, Bill Palmer, Nov. 26, 2020. Yet another way in which Robert Mueller blew it: Michael Flynn didn’t just lie to the FBI. He stood accused of being an unregistered foreign agent, violating the Logan Act, conspiracy to commit kidnapping, and various other serious alleged crimes.

robert mueller full face fileMueller, right, agreed not to prosecute Michael Flynn for any of those serious crimes, and let him plead out on one minimal charge, in exchange for his testimony against Donald Trump. Then in the end, Mueller made no move on Trump at all. What a waste.

bill palmer report logo headerWe still don’t have a satisfactory explanation for why Mueller came out like gangbusters in the first year of his probe, getting Flynn to flip on Trump and busting Manafort, only to spend the second year of his probe doing nothing, before ultimately giving up and going home.

We now know that Rod Rosenstein had been obstructing Mueller’s probe the entire time. But it’s not like Mueller wasn’t producing results. He started off super aggressive. Then he just sort of stopped investigating, long before Bill Barr came along at the end.

In fact, now that it’s become clear that Bill Barr is a muddling bumbler and ineffective henchman, it makes it all the more suspicious that Barr was somehow able to take Mueller down just by breathing on him. Then again, once Mueller finally was forced to testify, it became clear that he knew and understood far less about his own investigation than the average observer did. Maybe the guy really did go senile halfway through his investigation.

But when Mueller gave Flynn a nearly free pass in order to get him to flip on Trump, it was fairly clear at the time that Mueller intended to go after Trump. But in the end, Mueller couldn’t even be bothered to try subpoenaing Trump to testify in person. Now more than ever, we deserve answers about what went so horribly wrong with the Mueller probe. It allowed Trump to complete his term, and helped get more than a quarter million Americans killed.

Bloomberg, Ex-Trump Lawyer Sidney Powell Files Election Suits in ‘DISTRCOICT’ Court, Tony Aarons, Nov. 26, 2020. Sidney Powell brings cases after being dropped from Trump team; Georgia case misspells district as ‘DISTRCOICT’ in court name.

A lawyer who was dropped from President Donald Trump’s legal team filed typo-strewn lawsuits in Michigan and Georgia alleging massive election fraud.

sidney powellSidney Powell, right, who has pushed some of the most extreme conspiracy theories around the election of Joe Biden, filed the lawsuits late Wednesday, according to a post on Twitter. The two cases have similar themes of problems linked to voting machines, mail-in ballots and deceased Venezuelan dictator Hugo Chavez.

Powell was kicked off Trump’s legal team this week after her claims about a vast Democratic conspiracy against the president. Days earlier she had appeared at a press conference alongside Trump lawyer Rudy Giuliani, where she alleged a plot to swing the election to Biden that involved voting-machine tampering and Venezuela.

The pre-Thanksgiving lawsuits, which target elected officials in both states, also include other claims about forged ballots and observers being unable to watch the vote count.

Despite numerous allegations of voter fraud and irregularities from Trump and his supporters, no evidence has emerged of widespread problems that would have changed the results of the election, which Biden won with 306 electoral votes.

Powell also represented former national security adviser Michael Flynn, who was pardoned by Trump Wednesday.

Both of Powell’s latest lawsuits were riddled with typographical errors.

The Michigan lawsuit, which was on the court website, was frequently marred by formatting problems that removed the spacing between words. For example: “TheTCFCenterwastheonlyfacilitywithinWayneCountyauthorizedtocountthe ballots.”

In the Georgia complaint, which was only available on Powell’s website, the word district in the court name was misspelled twice on the first page of the document. First there was an extra c for “DISTRICCT” and then, a few words later, “DISTRCOICT.”

 Nov. 24

nbc news logoNBC News, Opinion: Senate Republicans' Georgia bullying failed. But Lindsey Graham's ethics violations stand out, Richard Painter (right, former chief ethics richard painterlawyer for President George W. Bush) and Claire O. Finkelstein (faculty director of the Center for Ethics and the Rule of Law at the University of Pennsylvania), Nov. 24, 2020. Graham’s actions should be clearly identified and vociferously rejected by his fellow senators, as well as by the Biden administration.

Republican Party organizations have continued to support President Donald Trump’s unfounded allegations of voter fraud, amplifying his message in the press and in court filings. No such claim has survived legal scrutiny.

The president's own Department of Homeland Security has said that the 2020 election was “the most secure in American history,” a statement that resulted in the firing of the director of that agency’s cybersecurity division. Just last week Trump summoned Michigan Republican leaders to the White House to try to throw out the state's election results. Despite these efforts, Georgia, Michigan and Pennsylvania have certified the results in favor of President-elect Joe Biden and Vice President-elect Kamala Harris. And on Monday, the head of the General Services Administration approved the official transition process.

A handful of Republican senators has particularly disgraced the U.S. Senate in their willingness to support Trump’s doomed attempt to reverse the results of a lindsey grahamlawful and secure election.

A handful of Republican senators has particularly disgraced the U.S. Senate in their willingness to support Trump’s doomed attempt to reverse the results of a lawful and secure election. The most egregious example is Sen. Lindsey Graham of South Carolina, the subject of an ethics complaint we filed, along with former Office of Government Ethics Director Walter Shaub, last Wednesday with the Senate Ethics Committee.

The complaint centers on a phone call Graham, left, placed to Georgia Secretary of State Brad Raffensperger to propose that Raffensperger invalidate thousands of mail-in ballots. According to The Washington Post, Graham “asked whether Raffensperger had the power to toss all mail ballots in counties found to have higher rates of nonmatching signatures,” which would have included ballots legally cast by eligible voters. In a subsequent interview with CNN’s Wolf Blitzer, Raffensperger explained that he took the senator’s message to mean “look hard and see how many ballots you could throw out.”

Graham denies this account and maintains he was merely inquiring into the standards for mail-in ballots. His denial is not plausible. CNN reported that a staffer for Raffensberger, Gabriel Sterling, said “he participated in a controversial phone call with Sen. Lindsey Graham and claimed he heard Graham ask if state officials could throw out ballots.” Sterling and his family have received death threats and are now under 24-hour police protection.

Moreover, in the process of denying an attempt to invalidate ballots in Georgia, Graham admitted to reporters that he had also spoken with officials in Arizona, Nevada and possibly other states, because, as he said, “the future of the country hangs in the balance.”

Almost as worrisome as these attempts to influence election officials is Graham’s invocation of his authority as chairman of the Senate Judiciary Committee to further the Republican narrative of fraud. Four days after the election, he vowed to launch a committee investigation into alleged irregularities, declaring that as chairman "all credible allegations of voting irregularities and misconduct will be taken seriously.” The next day he credited “allegations of system failure, fraud” as the reason Trump lost the election.

Graham is indeed empowered to investigate irregularities. But it would be a profound misuse of his office to call for an investigation for the purpose of bolstering Trump’s bid for re-election. Thus far there has been no public disclosure of any further plans regarding Graham’s promised investigation. Let’s hope it stays that way. If, however, Graham follows through, it will be clear that the investigative powers of the U.S. Senate are being pressed into service to challenge election results after the fact, either to reverse the outcome of the presidential election or to intimidate voters, election workers and the Georgia secretary of state in the upcoming January Senate runoff.

As we documented in an October report issued under the auspices of the Center for Ethics and the Rule of Law and Citizens for Responsibility and Ethics in Washington, the use of public investigatory powers for partisan political purposes has been a hallmark of the current administration, as demonstrated by William Barr’s Department of Justice. If our norms have become so distorted that the investigative powers of the Senate are similarly available for misuse, our country is experiencing a rule-of-law crisis of the first order.

Senate ethics rules prohibit Senate employees from engaging in campaign activity, unless it is clear that they do so on their own time, outside of Senate space, and without using Senate resources.

Senate ethics rules prohibit Senate employees from engaging in campaign activity, unless it is clear that they do so on their own time, outside of Senate space, and without using Senate resources. But there is no reason to suppose that Graham’s attempt to interfere in either the presidential election or the Georgia Senate runoff is being done in his personal capacity, rather than as chairman of the Senate Judiciary Committee. Taken in the context of the threats to launch an investigation into voter fraud, it is difficult to separate Graham’s official position from his personal one in support of Trump and GOP candidates in Georgia. It would not have been necessary to disentangle the two, however, had Graham steered clear of any conduct that cast doubt on his impartiality as chair of the Senate Judiciary Committee.

Perhaps the most deeply concerning aspect of Graham’s disenfranchisement campaign lies in its motive and methodology, namely to coordinate efforts across the Republican Party to flip the results of the election, a goal that could not be accomplished without disenfranchising a large number of Black voters. Both Georgia and South Carolina, Graham’s home state, have a history of infringing on the voting rights of African Americans. In recognition of this history, both states were previously under the supervision of the Department of Justice based on provisions of the Voting Rights Act of 1965. In the 5-4 Shelby County v. Holder decision, however, the Supreme Court in 2013 rescinded this supervision. Graham’s actions are illustrative of the type of conduct that might not have happened had the Voting Rights Act been fully in effect.

Graham did not succeed in his apparent attempt to disenfranchise thousands of Georgians in the November 2020 election. But if the Georgia secretary of state or his staffer had had less integrity, Graham might have prevailed. Such misconduct on the part of a sitting senator is an embarrassment to the Senate and a threat to our democracy, one that must be addressed in a full assessment of U.S. election security in the new administration. Graham’s actions should be clearly identified and vociferously rejected by his fellow senators, as well as by the Biden administration. They should make clear that interference with the counting or certification of votes is conduct unbecoming of a senator and will not be tolerated.

Nov. 22

ny times logoNew York Times, Judge Dismisses Trump Lawsuit Seeking to Delay Certification in Pennsylvania, Alan Feuer, Nov. 22, 2020 (print ed.). In a scathing order, a federal judge rejected the Trump campaign’s claim of widespread improprieties with mail-in ballots, removing a major legal hurdle to certifying Joseph R. Biden’s Jr.’s victory there. A federal judge in Pennsylvania dismissed on Saturday night a lawsuit by the Trump campaign that had claimed there were widespread improprieties with mail-in ballots in the state, ending the last major effort to delay the certification of Pennsylvania’s vote results, which is scheduled to take place Monday.

In a scathing order, Judge Matthew W. Brann wrote that Mr. Trump’s campaign, which had asked him to effectively disenfranchise nearly seven million voters, should have come to court “armed with compelling legal arguments and factual proof of rampant corruption” in its efforts to essentially nullify the results of Pennsylvania’s election.

matthew brannBut instead, Judge Brann, right, complained, the Trump campaign provided only “strained legal arguments without merit and speculative accusations” that were “unsupported by evidence.”

The lawsuit, filed on Nov. 9, accused Pennsylvania’s secretary of state, Kathy Boockvar, and several counties with largely Democratic populations of unfairly handling mail-in ballots, which were used in unprecedented numbers during this year’s election. The suit claimed that under Ms. Boockvar’s guidance, the Democratic counties gave voters who had submitted mail-in ballots with minor flaws an opportunity to “cure” or fix them while counties with mostly Republican populations did not alert voters about faulty ballots.

That, according to the campaign, violated the equal protections clause of the U.S. Constitution.

But Judge Brann rejected this argument, likening it to Frankenstein’s monster, which had been “haphazardly stitched together.” He ruled that the Trump campaign, lacking standing to make the claim, could not prove that it had suffered any harm if some counties, anticipating a deluge of mail-in ballots, helped their voters to file proper ballots while others did not.

“That some counties may have chosen to implement” Ms. Boockvar’s suggestions while others did not, “does not constitute an equal-protection violation,” Judge Brann wrote.

rudy giuliani calls for beheading dems

Rudy Giuliani, Trump's top lawyer in lawsuits seeking to overturn the election, calls for beheading Democratic leaders (that would include President-Elect Biden) on Fox New's Hannity show. (Sceengfrab by Dave Lindorff).

This Can' Be Happening Blog via OpEdNews, Opinion: 'They should be beheaded!': Trump and Giuliani Go Full IS in Attack on Biden and Democrats, Dave Lindorff, oenearthlogoNov. 22, 2020. It's often been noted that countries that go to war tend to adopt the behaviors of their enemies in fighting them, and then bring that war and the techniques they have appropriated home where they begin to apply them domestically.

For at least two decades, since the US in 2001 launched its so-called "War" on Terror following the attacks on the World Trade Center and Pentagon in 2001, the US, under a series of three presidents, has waged a grossly illegal war around the globe against alleged terrorists, real or perceived, in countries as remote as Somalia, Yemen, Afghanistan, Pakistan and Syria. In this borderless, lawless "war" the US has turned to the same kind of terrorism that it accuses its enemies of using.

sean hannity white houseThese attacks on terrorist leaders are, in the lingo of the trade, referred to as "decapitations." It's the same term applied to what the Taliban in Afghanistan or IS fighters in Syria or elsewhere use to describe how they kill captives in their actions, which they, without an airforce or access to drone technology, dispatch in the old-fashioned way, with a large knife or a sword.

Now soundly and decisively defeated in his bid for re-election (Biden's winning the national vote by 4% and by 6 million votes and counting, with only heavily Democratic New York State and primarily even more heavily Democratic New York City having a significant one-sixth of its fox news logo Smallvotes in the form of absentee ballots left to count) and having won 306 Electoral College votes, 36 more than needed, Dear Leader Donald Trump is turning to IS tactics in his flailing effort to hang on to the White House.

On Nov. 19 on Fox News's "Sean Hannity Show," Rudy Giuliani, the head of Trump's legal team that is filing dozens of lawsuits in so-called swing states that narrowly went for Joe Biden this year seeking to overturn those Biden victories, told Hannity, shown in a file photo above right, that the Democratic Party had been taken over by "the Clintons," and then added that the the leadership of that party "needs to be beheaded."

He made a hand-accross-the-neck gesture to emphasize his meaning.

Hannity cut the interview off abruptly at that point, but the Fox News shock-jock shouldn't have been caught by surprise."

Trump counsel Rudy Giuliani leads a news conference at Republican National Committee headquarters in Washington, DC on Nov. 19, 2020.

Trump counsel Rudy Giuliani leads a news conference at Republican National Committee headquarters in Washington, DC on Nov. 19, 2020.

washington post logoWashington Post, Opinion: Trump’s wildest claims are going nowhere in court. Thank legal ethics, Adam Winkler (professor at UCLA School of Law, where he teaches legal ethics and other subjects),  Nov. 22, 2020 (print ed.). The president’s lawyers can’t make assertions without evidence in front of judges.

President Trump’s lie that the election was stolen has had some unfortunate success in the court of public opinion: Polling shows that more than three-quarters of his supporters believe the contest was riddled with fraud. To overturn the result, though, Trump needs to win in the court of law. A president who packed the federal courts with conservatives now depends on the judicial system to agree with his perspective and provide him a pathway to a second term despite Joe Biden’s win.

Yet Trump’s legal strategy has run aground — in no small part because of legal ethics. While lawyers are often cast as unscrupulous and immoral, they are required to follow a strict code of professional responsibility established by state bars. The famous duty of lawyers to keep a client’s confidences, for instance, comes from these ethical codes. Law students must take a course in legal ethics, the bar exam includes a section on ethical rules, and continuing-education requirements emphasize lawyers’ duties to clients and to the courts.

Two ethical rules have been fatal to Trump’s election lawsuits in state after state: the lawyer’s duty of candor to a court and the lawyer’s duty to avoid frivolous claims. The president can spew all the theories he wants, and his advocates can say whatever they like on television, but because of these two ethical duties, Trump’s lawyers can make claims before courts only if they can back them up with actual evidence.

Lawyers are obligated to be truthful in everything they say to a court. If they aren’t, they can lose their license to practice law. In a hearing over Trump’s claim that his campaign was being excluded from observing the ballot count in Philadelphia, the judge — a conservative George W. Bush appointee — asked Trump’s lawyer if campaign observers were in fact present. Because of the duty of candor to the court, Trump’s lawyer had to concede that campaign observers were indeed in the room.

djt rudy giuliani headshots CustomConcerns about violating ethical rules partly explain why Trump’s lawyers are deserting him. Two large law firms withdrew as counsel only days after filing lawsuits. Two new lawyers signed on, only to withdraw within days themselves. Lawyers in high-profile cases rarely quit a client so quickly — unless they fear that the representation will violate the rules of legal ethics. Then they have no choice. Likewise, most of the establishment legal team that defended Trump during his impeachment has stayed away from the post-election litigation efforts.

The exodus has left Trump’s lawsuits in the hands of Rudolph W. Giuliani, who until this past week hadn’t been in a courtroom in decades. Although he’s made wild accusations in news conferences about “a massive fraud” involving the Clintons, George Soros and Hugo Chávez, Giuliani acknowledged in a federal court hearing in Pennsylvania that “this is not a fraud case.” And so far, none of the strangest claims he’s made publicly have found their way into any court filings.

washington post logoWashington Post, Opinion: The disinformation system that Trump unleashed will outlast him. Here’s what reality-based journalists must do about it, Margaret margaret sullivan 2015 photoSullivan, right, Nov. 22, 2020. It’s time for journalism to stand for something — or lose its audience to the excitement of burgeoning lies.

President Trump didn’t create the media cesspool that he’ll bequeath to a troubled nation. He just made it exponentially worse — not only with his own constant lies but with his ability to spread the ugliness.

Just days ago, he tweeted out a debunked conspiracy theory that a company that makes voting machines had deleted millions of Trump votes. And though he — barring true disaster — will leave office in January, the widespread disinformation system that he fostered will live on.

Social media platforms, streaming “news” channels and innumerable websites will spew lies and conspiracy theories, and will keep weakening the foundation of reality that America’s democracy needs in order to function.

So what, if anything, can the reality-based press do to counter it?

I see three necessities.

First, be bolder and more direct than ever in telling it like it is. No more pussy-foooting or punch-pulling. No more of what’s been called “false equivalence” — giving equal weight to truth and lies in the name of fairness.

Nov. 22

supreme court Custom

Politico Magazine, Analysis: The Supreme Court’s “Breathtakingly Radical” New Approach to Election Law, Wendy Weiser and Daniel Weiner, Nov. 22, 2020. The justices won’t end up deciding the 2020 presidential race, but they have set the stage for a massive rollback of voting rights.

In the end, the blizzard of lawsuits from President Donald Trump’s campaign will amount to nothing beyond a megaphone for disinformation about the integrity of the 2020 election. As destructive as the president’s attempts to undermine democracy are, the most lasting damage to America’s election system is likely to come instead from a series of Supreme Court rulings that appear perfunctory but actually could restrict voters’ rights for years to come.

In the weeks before Election Day, the court weighed in on more than a dozen cases in a way that many portrayed as a mixed bag for voting rights—allowing voting expansions to stand in some cases and sharply curtailing them in others. But that scorecard approach obscures the principal effect of the court’s rulings: In all of the cases, regardless of whether the Trump campaign won or lost, the justices quietly—yet dramatically—rolled back Americans’ voting rights in ways that could do permanent harm—that is, unless Congress steps in.

Let’s start with the visible damage.

In multiple cases, and often without a shred of explanation, the Supreme Court affirmatively stepped in to make it harder to vote. The first case was in Wisconsin in April, right after the pandemic hit. A lower court had extended the deadline for returning mail ballots in the presidential primary by six days. But the night before the election, over a withering dissent by Justice Ruth Bader Ginsburg—one of her last written opinions—the Supreme Court blocked that extension, leaving voters only hours to obtain and return their ballots. The result: thousands of citizens were unable to return their ballots on time, and their votes were not counted.

Likewise, in South Carolina in early October, the court reinstated a witness requirement for absentee ballots after voting had already started and weeks after the ballot instructions had been printed. While the court exempted voters whose ballots were delivered within two days of its ruling without a witness signature, at least 2,509 ballots arrived after that date and were disqualified. In Alabama, the court stepped in two weeks before Election Day to reinstate witness identification requirements for absentee ballots and a ban on curbside voting.

Until these rulings, federal courts across the country had generally responded to the pandemic by expanding voting access, applying well-established legal doctrines to evaluate burdens to voting rights under the Constitution. Their decisions mainly allowed more voters to take advantage of mail voting and to have safe ballot drop-off and voting locations. Election officials adapted their systems accordingly, and voters requested and received ballots in keeping with the new procedures.

After the Supreme Court ruled in South Carolina, however, appellate courts followed its lead and blocked more than a dozen voter-friendly rulings and settlements within a span of a few weeks. In one egregious case only four days before Election Day, a federal appeals court halted a settlement allowing Minnesota voters to mail back their ballots up until Election Day. At the time, there were more than half a million ballots—all containing instructions with the previous deadline—still outstanding.

These decisions likely disenfranchised tens of thousands of Americans this year, disproportionately people of color. But their most significant damage is not limited to this election. Although the Supreme Court didn’t provide a rationale for its rulings, individual justices articulated two principles that guided their votes, and the way the court applied those principles this election season sets dangerous precedents for the future.

First, there’s what’s known as the Purcell principle, which maintains that federal courts shouldn’t make changes to voting rules close to an election. The supposed purpose of this judge-made doctrine is to prevent confusion and chaos by requiring last-minute changes to election practices that could disenfranchise voters or cause administrative snafus. But in many cases during the lead-up to this election, the Supreme Court itself caused confusion and administrative problems by reversing voting rights rulings from lower federal courts that had already been implemented by election officials, and the circuit courts followed suit. (This would seem to suggest that while the Supreme Court believes this rule applies to lower courts, it is not a constraint on its own rulings.)

What’s more, the Purcell principle has never before been applied as a blunt instrument to block all voting rights protections close to an election, regardless of their impact, as the Supreme Court seemed to do this year. A broad application of this precedent could make it impossible to challenge barriers to voting that were themselves imposed at the last minute, including obstacles erected purposefully to thwart certain voters. This isn’t theoretical; it’s precisely what happened in Texas when a federal appeals court used the Purcell principle to uphold Texas Gov. Greg Abbott’s Oct. 1 executive order, which sharply limited the number of ballot drop-off sites in a way that targeted voters in more populous counties, after a federal district court ruled against it.

Second, and even more dangerous, five of the court’s justices have signed onto opinions endorsing a brand new legal theory—that the Constitution gives state legislatures virtually untrammeled authority to set voting rules for federal elections, no matter how arbitrary or unreasonable. This previously discredited theory, which was first articulated by three justices in one of the cases concerning the 2000 presidential election recount in Florida, could insulate most anti-voter laws—from arbitrary voting restrictions to burdensome registration requirements—from constitutional review by federal courts. What is more, the Court may be poised to prevent even state courts from reviewing their own state’s laws for compliance with state constitutional protections. Indeed, that was the logic Justices Samuel Alito, Neil Gorsuch and Clarence Thomas wanted to apply to strike down the Pennsylvania Supreme Court’s ruling extending the absentee ballot receipt deadline this year. They were outvoted this time, but this logic could also be applied to prevent state and local election officials from expanding voter access beyond legislative mandates—as many did to ensure voters’ health and safety this year.

These theories are breathtakingly radical, and if they take root, they will seriously undermine Americans’ voting rights going forward. But here is the good news: When it comes to voting rights, the Supreme Court does not necessarily get the last word. Congress can take the lead.

Wendy Weiser is vice president for democracy and Daniel Weiner is deputy director of the Election Reform Program at the Brennan Center for Justice at NYU Law.

Nov. 20

jfk limo dallas 31kb

Future of Freedom Foundation, Analysis: The Cunning Plot to Kill Kennedy, Jacob Hornberger, right, Nov. 20, 2020. If anyone murders a federal official, you can be assured jacob hornberger newof one thing: the feds will do everything they can to ensure that everyone involved in the crime is brought to justice. It's like when someone kills a cop. The entire police force mobilizes to capture, arrest, and prosecute everyone involved in killing the cop. The phenomenon is even more pronounced at the federal level, especially given the overwhelming power of the federal government

Yet, the exact opposite occurred in the Kennedy assassination. The entire effort immediately became to pin the crime solely on a "communist" ex-U.S. Marine named Lee Harvey Oswald and to shut down any aggressive investigation into whether others were involved in the crime.

What's up with that? That's not the way we would expect federal officials to handle the assassination of any federal official, especially the president of the United States. We would expect them to do everything -- even torture a suspect -- in order to capture and arrest everyone who may have participated in the crime.

For example, just three days after the assassination and after Oswald himself had been murdered, Deputy Attorney General Nicholas Katzenbach sent out a memo stating, "The public must be satisfied that Oswald was the assassin; that he did not have confederates who are still at large; and that evidence was such that he would have been convicted at trial."

How in the world could he be so certain that Oswald was the assassin and that he had no confederates? Why would he want to shut down the investigation so soon? Does that sound like a normal federal official who is confronted with the assassination of a president?

The answer to this riddle lies in the brilliantly cunning scheme of the U.S. national-security establishment to ensure that the investigation into Kennedy's assassination would be shut down immediately and, therefore, not lead to the U.S. national-security establishment.

The assassination itself had all the earmarks of a classic military ambush, one in which shooters were firing from both the front and back of the president. It is a virtual certainty that responsibility for the ambush lay with the Joint Chiefs of Staff, who had been waging a vicious war against Kennedy practically since the time he assumed office. (See Future of Freedom Foundations book JFK's War with the National Security Establishment: Why Kennedy Was Assassinated by Douglas Horne, who served on the staff of the Assassination Records Review Board in the 1990s.)

While the JCS were experts at preparing military-style ambushes, they lacked the intellectual capability of devising the overall plot and cover-up, given its high level of cunning and sophistication. That responsibility undoubtedly lay with the CIA, whose top officials were brilliant graduates of Ivy League Schools. Moreover, practically from its inception the CIA was specializing in the art of state-sponsored assassinations and in how to conceal the CIA's role in them.

To ensure that the role of the Pentagon and the CIA in the Kennedy assassination would be kept secret, they had to figure out a way to shut down the investigation from the start. Their plan worked brilliantly. While the normal thing would have been all-out investigations into the murder, in this particular murder the state of Texas and U.S. officials did the exact opposite. They settled for simply pinning the crime on Oswald, the purported lone nut communist ex-U.S. Marine.

Here is how they pulled it off.

As the years have passed, it has become increasingly clear that Oswald was a government operative, most likely for military intelligence or maybe the CIA and the FBI as well. His job was to portray himself as a communist, which would enable him to infiltrate not only domestic communist and socialist organizations but also communist countries, such as Cuba and the Soviet Union.

After all, how many communist Marines have you ever heard of? The Marines would be a good place to recruit people for intelligence roles. Oswald learned fluent Russian while in the military. How does an enlisted man do that, without the assistance of the military's language schools? When he returned from the Soviet Union after supposedly trying to defect and after promising that he was going to give up secret information he had acquired in the military, no federal grand jury or congressional investigation was launched into his conduct, even though this was the height of the Cold War.

Thus, Oswald would make the perfect patsy. He could be stationed wherever his superiors instructed. And he would have all the earmarks of a communist, which would immediately prejudice Americans at the height of the Cold War.

lee harvey oswald in dallas custodyBut simply framing Oswald (shown in custoday in Dallas after the shooting) wouldn’t have been enough to shut down the investigation. An aggressive investigation would undoubtedly be able to pierce through the pat nature of the frame-up. They needed something more.

If you’re going to frame someone who is supposedly firing from the rear, then doesn’t it make sense that you would have shots being fired only from the rear? Why would they frame a guy who is supposedly firing from the rear by having shots fired from the front?

That’s where the sheer brilliance of this particular regime-change operation came into play. The plan was much more cunning than even the successful regime-change operations and assassinations that took place prior to the one against Kennedy — i.e., Iran in 1953, Guatemala in 1954, Cuba from 1959-1963, and the Congo in 1961.

There is now virtually no doubt that Kennedy was hit by two shots fired from the front. Immediately after Kennedy was declared dead, the treating physicians at Parkland Hospital described the neck wound as a wound of entry. They also said that Kennedy had a massive, orange-sized wound in the back of his head. Nurses at Parkland said the same things. Two FBI agents said they saw the big exit-sized wound. Secret Service agent Clint Hill saw it.

Navy photography expert Saundra Spencer told the ARRB in the 1990s that she developed the JFK autopsy photos on a top-secret basis on the weekend of the assassination and that they depicted a big exit-sized wound in the back of JFK’s head. A bone fragment from the back of the president’s head was found in Dealey Plaza after the assassination. That is just part of the overwhelming evidence that establishes beyond a reasonable doubt that the shot that hit Kennedy in the head came from the front.

Okay, if you’ve got a shooter firing from the back and he’s a communist, and if you have other shooters firing from the front, then they have to be working together. So, who would the shooters be who were firing from the front? The logical inference is that they had to be communist cohorts of Oswald.

That’s what Oswald’s supposed visits to the Cuban and Soviet embassies in Mexico just before the assassination were all about — making it look like Oswald was acting in concert with the Soviet and Cuban communists to kill Kennedy.

If the assassination was part of the Soviet Union’s supposed quest to conquer the world, retaliation would mean World War III, which almost surely would have meant nuclear war, which was the biggest fear among the American people in 1963.

But why not retaliate in some way? Would U.S. officials at the height of the Cold War hesitate to retaliate for the communist killing of a U.S. president, simply because they were scared of nuclear war? Not a chance! In fact, throughout Kennedy’s term in office the Pentagon and the CIA were champing at the bit to attack Cuba and go to war with the Soviet Union.

But here’s the catch: How do you take action that is going to destroy the world when it was your side that started the assassination game in the first place? Remember: It was the CIA that started the assassination game by partnering with the Mafia to assassinate Cuban leader Fidel Castro.

Thus, Lyndon Johnson, the CIA, and the JCS had the perfect excuse to shut down the investigation and pin the crime only on Oswald: If they instead retaliated, it would be all-out nuclear war based on an assassination game that the U.S. had started.

In fact, when Dallas District Attorney Henry Wade alleged from the start that Oswald was part of a communist conspiracy, Johnson told him to shut it down for fear that Wade might inadvertently start World War III.

earl warrenMoreover, when U.S. Supreme Court Justice Earl Warren, right, initially declined Johnson’s invitation to serve on what ultimately became the Warren Commission, Johnson appealed to his sense of patriotism by alluding to the importance of avoiding a nuclear war. Johnson used the same argument on Senator Richard Russell Jr.

From the start, the Warren Commission proceedings were shrouded in “national-security” state secrecy, including a top-secret meeting of the commissioners to discuss information they had received that Oswald was an intelligence agent. When Warren was asked if the American people would be able to see all the evidence, Warren responded yes, but not in your lifetime.

Does that make any sense? If the assassination was, in fact, committed by some lone nut, then what would “national security” and state secrecy have to do with it?


Thus, the plan entailed operating at two levels: One level involved what some call the World War III cover story. It entailed shutting down the investigation, as well as a fraudulent autopsy, to prevent nuclear war. The other level involved showing the American people that their president had been killed by only one person, a supposed lone nut communist former Marine.


Gradually, as the years have passed, the incriminating puzzle has come together. The big avalanche of secret information came out in the 1990s as part of the work done by the Assassination Records Review Board.

Of course, there are still missing pieces to the puzzle, many of which are undoubtedly among the records that the CIA and national-security establishment are still keeping secret. But enough circumstantial evidence has come to light to enable people to see the contours of one of the most cunning and successful assassination plots in history.

Nov. 19

djt handwave file

washington post logoWashington Post, Trump tries delaying count to cast doubt on Biden win, Amy Gardner, Robert Costa, Rosalind S. Helderman and Michelle Ye Hee Lee, Nov. 19, 2020 (print ed.). President Trump has abandoned his plan to win reelection by disqualifying enough ballots to reverse President-elect Joe Biden’s wins in key battleground states, pivoting instead to a goal that appears equally unattainable: delaying a final count long enough to cast doubt on Biden’s decisive victory.

joe biden oOn Wednesday, Trump’s campaign wired $3 million to election officials in Wisconsin to start a recount in the state’s two largest counties. His personal lawyer, ­Rudolph W. Giuliani, who has taken over the president’s legal team, asked a federal judge to consider ordering the Republican-controlled legislature in Pennsylvania to select the state’s electors. And Trump egged on a group of GOP lawmakers in Michigan who are pushing for an audit of the vote there before it is certified.

Giuliani, below left, has also told Trump and associates that his ambition is to pressure GOP lawmakers and officials across the political map to stall the vote certification in an effort to have Republican lawmakers pick electors and disrupt the electoral college when it convenes next month — and Trump is encouraging of that plan, according to two senior rudy giuliani recentRepublicans who have conferred with Giuliani and spoke on the condition of anonymity to discuss the matter candidly.

But that outcome appears impossible. It is against the law in Pennsylvania, Wisconsin law gives no role to the legislature in choosing presidential electors, and there is little public will in other states to pursue such a path.

Behind the thin legal gambit is what several Trump advisers say is his real goal: sowing doubt in Biden’s victory with the president’s most ardent supporters and keeping alive his prospects for another presidential run in 2024.

The shift in strategy comes after the president has suffered defeat after defeat in courtrooms around the country. And it serves as a tacit acknowledgment that Trump has failed to muster evidence to support his unfounded claims about widespread fraud.

washington post logoWashington Post, Wayne County Republican who asked to ‘rescind’ her vote certifying results says Trump called her, Tom Hamburger, Kayla Ruble and Tim Elfrink, Nov. 19, 2020. The certified election results have already been sent to the secretary of state.

President Trump called a GOP canvassing board member in Wayne County who announced Wednesday she wanted to rescind her decision to certify the results of the presidential election, the member said in a message to The Washington Post on Thursday.

“I did receive a call from President Trump, late Tuesday evening, after the meeting,” Monica Palmer, one of two Republican members of the four-member Wayne County canvassing board, told The Post. “He was checking in to make sure I was safe after hearing the threats and doxing that had occurred.”

djt maga hatThe call came after an hours-long meeting Tuesday in which the four-member canvassing board voted to certify the results of the Nov. 3 election, a key step toward finalizing President-elect Joe Biden’s victory in the state.

For now, Trump’s intervention seemed unlikely to change the course of events in Michigan. Biden is winning the state by a wide margin, more than 148,000 votes. The state said Palmer’s board has done its job, and cannot retract its votes. The state’s board of canvassers is still scheduled to hold a hearing Monday to certify the results.


washington post logoWashington Post, Opinion: We need a commission on voter suppression in 2020, Jennifer Rubin, right, Nov. 19, 2020 (print ed.). An jennifer rubin new headshotattempt to disenfranchise Detroit voters by two Republicans members of the Wayne County, Mich., Board of Canvassers failed Tuesday, thanks in large part to a Zoom conference that allowed the public to observe their antics. Slate’s Ben Mathis-Lilley writes on the episode:

“[Board chair Monica Palmer] made something of a misstep by trying to block Detroit’s votes but not those tallied in nearby Livonia, which has a much whiter population, even after it had been noted during the meeting that Livonia’s numbers included the same kinds of small inconsistencies that were purportedly at issue. . . .

For his part, Republican canvassing board member William Hartmann has spent the last decade-plus filling his Facebook account with images of Barack Obama caricatured as a toothless, cigarette-smoking bum and hustler.

Fortunately all of this failed to go over with the members of the public, many of them Black, who spoke directly to Palmer and Hartmann during the comment period before they reversed their position. Palmer and Hartmann were lectured about the vote-counting process and told repeatedly they were embarrassing their state in what was sure to be a losing effort.”

It is moments like this that suggest we need a top-to-bottom evaluation of the 2020 election, including the conduct of Postmaster General Louis DeJoy; Attorney General William P. Barr’s decision to change Justice Department protocol in the investigation of voting fraud allegations; state efforts to block early voting; state rules preventing ballots to be processed in advance of Election Day; and pressure applied to local election officials such as Georgia Secretary of State Brad Raffensperger. Throw in as well a deep dive into social media treatment of disinformation and the frivolous lawsuits from the Trump campaign.

Christopher Krebs DHSSuch a commission should interview public servants such as Christopher Krebs, left, who was fired from his position as head of the Cybersecurity and Infrastructure Security Agency; the 16 U.S. attorneys and assistant U.S. attorneys who determined there was no pattern of fraud in the election; and local and state officials, lawmakers and nonpartisan groups who saw the good, the bad and the ugly. We need to come up with reliable, factual data to serve as the basis for expert recommendations designed to maximize voter participation, election security and public confidence in the results.

Some of the results and recommendations might include criminal referrals for anyone who made false statements under oath or interfered in vote tabulation. Findings would also provide the basis for proposals to change state and federal voting laws to prevent voter intimidation, foot-dragging and conspiracies theories that thwart popular will. We may need laws to prohibit conduct that plainly attempted to impede a free and fair election.

 ny times logoNew York Times, Analysis: No, judges don’t overturn elections because of isolated irregularities, Jeremy W. Peters, Nov. 19, 2020. President Trump’s approach to challenging the election has been scattershot and contradictory, as his campaign demands that courts stop ballots from being counted in certain places while insisting that a more thorough review is necessary in other places.

Confusing as it may seem, essentially his goal is this: to get judges to invalidate the results in enough counties and states so that President-elect Joseph R. Biden Jr.’s lead disappears.

Would judges ever actually do that?

They have before, though never on the scale that the president and his legal team is attempting. There are numerous examples going back hundreds of years in the United States when courts have been asked to toss out the results of elections on the local, state and federal levels. Losing candidates have prevailed for a variety of reasons: because the court determined that the count was off, or that inconsistent standards were applied in processing ballots, or even that there was voter fraud.

But these cases are the exception. And election law experts said that judges have set the bar extremely high. It’s not enough to claim — or even prove — that irregularities occurred. The irregularities have to be significant enough to change the outcome of the race, which is extraordinarily rare.

“The prevailing view today is that courts should not invalidate election results because of problems unless it is shown that the problems were of such magnitude to negate the validity of which candidate prevailed,” said Edward B. Foley, director of election law at Ohio State University’s Moritz College of Law. This is inherently difficult to do, he added, given how hard it is to provide evidence that disputed ballots were cast in favor of a particular candidate.

Palmer Report, Opinion: Did Joe Biden just pull a fast one? Bill Palmer, right, Nov. 19, 2020. Earlier this week the media reported that Joe Biden bill palmerwas privately lamenting about not wanting to have to criminally prosecute Donald Trump, even while making clear that he would let the DOJ handle it and not interfere in any way. It’s a non-story, both because Biden won’t be involved in the DOJ’s decisions about federal charges, and because Trump is likely to get hit with state charges in New York first anyway. But it nonetheless set off a firestorm.

At first I thought Biden was simply leaking this particular lament because he wanted to position himself as being above the fray, and therefore make sure that the DOJ’s inevitable prosecution of Trump doesn’t look partisan. But today it finally hit me.

bill palmer report logo headerFor the past ten days since Biden was declared the winner, Palmer Report has been pointing out that the real story with Trump is that he’s now facing prison and bankruptcy. It’s been really irksome that the mainstream media is still hung up on fantasies about Trump launching a media venture or running in 2024, when in reality he’ll be in prison by then. I’ve been wondering how many weeks or months it would take for the media to finally shift gears and acknowledge that Trump is done for.

But now that Biden has leaked his lament about wishing he didn’t have to prosecute Trump, the mainstream media is suddenly spending portions of every day talking about the criminal liability that Trump faces. It’s finally prompted the media to shift gears and start acknowledging that Trump is looking at federal prison, state prison, litigation, you name it. It’s taking Trump’s legs out from under him, because once the public is aware that Trump has no leverage when it comes to where he goes next, it shatters Trump’s narrative that he’s somehow in the driver’s seat.

Did Joe Biden just pull a fast one? As a result of his leak about not wanting to prosecute Trump, suddenly the national conversation is about Trump being prosecuted, instead of Trump leaving on a magic carpet. If Biden had leaked that he did want to prosecute Trump, that wouldn’t have worked, because the media would have just criticized him for being too brazen about it. But as it’s playing out, Biden’s leak has resulted in the media finally acknowledging that Trump is backed into a corner on criminal charges.

Keep in mind that Joe Biden has been on the political stage for nearly fifty years. He knows how the media works. He knows how narratives work. Did Biden just get lucky, or did he purposely leak this in order to goad the media into turning toward the real narrative? Biden is a lot savvier than some people give him credit for.

ny times logoNew York Times, Confrontations in swing states escalate as Trump continues to attack election process, Nick Corasaniti, Jim Rutenberg and Kathleen Gray, Updated Nov. 19, 2020. Money pours into Georgia ahead of runoff races that will determine control of the Senate.

President Trump’s false accusations that voter fraud denied him re-election are causing escalating confrontations in swing states across the country, leading to threats of violence against officials in both parties and subverting even the most routine steps in the electoral process.

In Arizona on Wednesday, the Democratic secretary of state, Katie Hobbs, issued a statement lamenting the “consistent and systematic undermining of trust” in the elections and called on Republican officials to stop “perpetuating misinformation.” She described threats against her and her family in the aftermath of Joseph R. Biden Jr.’s victory over Mr. Trump in her state.

In Georgia, where Mr. Biden holds a narrow lead that is expected to stand through a recount concluding Wednesday night, Secretary of State Brad Raffensperger, a Republican, has said he, too, received menacing messages. He also said he felt pressured by Senator Lindsey Graham, a close Trump ally and the chairman of the Senate Judiciary Committee, to search for ways to disqualify votes.

In Pennsylvania, statehouse Republicans on Wednesday advanced a proposal to audit the state’s election results that cited “a litany of inconsistencies” — a move Democrats described as obstructionist and unnecessary given Mr. Trump’s failure to present any evidence in court of widespread fraud or other problems. Republicans in Wisconsin filed new lawsuits on Wednesday in the state’s two biggest counties, seeking a recount. Mr. Biden reclaimed both states after Mr. Trump won them in 2016.

Nowhere was the confusion and chaos more evident than in Michigan on Tuesday night, when two Republican members of the canvassing board in Wayne County, which includes Detroit, initially refused to certify election results, pointing to minor recording discrepancies. It was a stunningly partisan move that would have potentially disenfranchised hundreds of thousands of voters from a predominantly Black city, and after a stream of public backlash, the two board members reversed their votes and agreed to certify.

ny times logoNew York Times, Charges Against U.S. Protesters Are Being Dismissed by the Thousands, Neil MacFarquhar, Nov. 19, 2020. Prosecutors declined to pursue many of the cases because they concluded the protesters were exercising their basic civil rights.

Matt Kaufmann loved bringing real-world issues into his classroom, but he never expected he would become a lesson himself. The headlines, however, made it hard to avoid: “Kentucky High School Teacher of the Year Arrested,” blared the local news after he was detained on May 31.

An English teacher at Marion C. Moore School at that time, Mr. Kaufmann was among more than 800 people swept up by the police in Louisville during the many months of demonstrations prompted by the police killings of George Floyd in Minneapolis and Breonna Taylor in Louisville.

Mr. Kaufmann and his fiancée, protest novices, joined a large downtown crowd in late May, he said, when police officers began to break up the demonstration by firing tear gas and charging from all sides. With a helicopter thumping overhead, he suddenly found himself lined up on the ground with dozens of other protesters, then hauled off to a crowded jail cell.

“I had never experienced anything like that before,” Mr. Kaufmann, 41, said. “It was scary.”

Now, more than five months later, as Mr. Kaufmann’s case and those of thousands of others finally land in courts across the United States, a vast majority of cases against protesters are being dismissed. Only cases involving more substantial charges like property destruction or other violence remain.

ny times logoNew York Times, Opinion: Four Years of the Trump Administration in Court. One Word Stuck in My Head, Linda Greenhouse, Nov. 19, 2020. A succession of Trump policies reflected the administration’s spite and heartlessness.

During four years struggling to keep up with the flood of court cases challenging the refusal by various Trump administration officials to follow the law, a word ​has come to mind so often that I can’t shake it. It’s the word “mean.​” There’s a meanness to the ​man and to the policies issued from the sycophantic bubble that passes for his administration.

One example is a decision this past weekend by Judge Nicholas Garaufis of Federal District Court in Brooklyn. He invalidated a series of moves by Chad Wolf, the supposed acting secretary of the Department of Homeland Security, following the Supreme Court’s decision in June that stopped President Trump from canceling DACA, the Obama administration program that still protects from deportation undocumented immigrants who were brought here as children.

Nov. 18

washington post logoWashington Post, Opinion: Choosing an attorney general could be Biden’s most important personnel decision, Jennifer Rubin, right, Of all the jennifer rubin new headshotmesses in all the departments that the Biden administration will need to clean up, none will be more of a challenge than the Justice Department.

Consider all the questions the new attorney general must face:

    • Whether to investigate President Trump and, if so, for what crimes.
    • Whether to investigate other members of the Trump administration for obstruction of justice, perjury or other crimes.
    • Whether to attempt to compile a definitive narrative of the Russia scandal and Ukraine affair.
    • How to determine if any Justice Department attorneys misrepresented facts to the court, assisted in any illegal activity or violated their code of professional ethics.
    • [Plus seven other sample major issues.]

Justice Department log circularGiven all that, President-elect Joe Biden should consult with his highly regarded pick for White House counsel, Dana Remus, about potential conflicts of interest for attorney general nominees that could arise from their prior work in, or knowledge of, matters during the Trump administration.

The knotty issues that the next attorney general will have to untangle come on top of a slew of policy decisions and reallocation of resources — some of which may require legislation, voting rights enforcement, antitrust enforcement, drug enforcement, criminal justice reform, actions on environmental crime and dozens of other matters.

washington post logoWashington Post, Opinion: An improbable journalist’s case could pressure the Supreme Court to rethink qualified immunity, George F. george f willWill, right, Nov. 18, 2020. Priscilla Villarreal, who calls herself Lagordiloca, which she translates as the Crazy Fat Lady, is a familiar figure on the streets of Laredo.

She has cruised them practicing a form of journalism that she calls “News on the Move.” In December 2017, the police department of Texas’s 10th-largest city arrested her for committing two felonies. She was charged, essentially, with committing journalism: She got information from the government and published it.

Three years after her arrest, she is suing the city and some of its employees, charging that her arrest was retaliatory. Her case involves a 2020 preoccupation, police misbehavior, and a court-created rule, “qualified immunity,” that breeds misbehavior by enabling much of it to go unpunished.

Villarreal, who sometimes uses salty language that would cause blushes below deck in a troop transport, has used her cellphone and her Facebook page — she has more than 170,000 followers — to livestream and comment on crime scenes, traffic accidents, immigration enforcement and other matters, including police behavior. She has enemies in high places.


Nov. 14

World Crisis Radio, Opinion: The Whole World Is Watching: Will It Be Wag the Dog against Iran, 'Autogolpe' (Coup against one's own government), or webster tarpley 2007Legal Transfer of Power to Biden? Webster G. Tarpley, right, Nov. 14, 2020. Destiny of 330 Million Americans Might Now Depend on the Whim of One Mentally Troubled Adventurer; By Acting as Accessories, Republican Party Has Earned Extinction – Let’s Make Sure that They Get It, Starting in Georgia on January 5!

Decapitated US Government Leaves Window of Vulnerability Wide Open on World Stage; Pompeo Eyed with Suspicion by emmanuel macronFrench President Macron, left, Who Promises to Keep Biden Informed of All that Transpires in Monday Meeting; French Views Reflect Recent Terror Attacks by Jihadis; Pompeo’s Visit to Israel Prepared by Veteran Neocon Warmonger Eliot Abrams.

Trump Fanatics Gather in DC’s Freedom Plaza (Capacity 15,000); Few Elected Officials Present Reportedly Include One QAnon Fanatic from Georgia; Not Enough for Coup; Trump Makes Perfunctory Drive-By Cameo Appearance but No Rousing Speech, then Hurries Off to Play Golf; Energy Level Falling; Anti-Trump Forces Wisely Declined Provocation.

One Week After Associated Press Called Election for Biden, Concern Grows of Threat of Public Health Chaos due to Failure to Ascertain Him as Victor; Trump’s GSA Overseer Emily Murphy, Now Sabotaging Transition, Has Been Faulted for Misleading Congress on Trump Hotel and New FBI Headquarters Issues.

Is Time for New 1776 or Rather a New 1865, which Was Already the Second American Revolution? From Mussolini’s March on Rome in October 1922 to the Pathos of the “Million MAGA March”: The First Time as Tragedy, the Second Time as Farce!

Nov. 13

washington post logoWashington Post, Alito homes in on gay marriage, gun rights, religious liberty in stern speech to conservatives, Robert Barnes, Nov. 13, 2020. When a public official says he is pessimistic that his comments won’t be twisted or misunderstood but then adds, “here goes,” even he knows something controversial is coming up.

That’s how Supreme Court Justice Samuel A. Alito Jr. began his rock-ribbed and unusual speech to the Federalist Society on Thursday night. He recited “previously unimaginable” pandemic-related restrictisamuel alito oons on individual freedoms and lamented that freedom of speech, religion and gun rights are in danger of “second-tier” constitutional status.

Alito worries about pandemic-related restrictions on religious freedoms

He delivered a brushback to liberal Democratic senators who have criticized the court. He renewed grievances with his colleagues — Chief Justice John G. Roberts Jr. was an implied offender — about decisions on abortion rights and deferring to public officials who limit the size of worship services as preventive measures aimed at abating the spread of coronavirus.

Same-sex marriage? Check. These days, “you can’t say that marriage is a union between one man and one woman” without fear of reprisal from schools, government and employers, Alito said.

It was an address that chronicled Alito’s disappointments with the Supreme Court that had a 5 to 4 conservative majority until recently. Maybe it was to set an agenda for one with a new and perhaps more reliable 6 to 3 margin.

Alito’s positions on the issues are not new, much of what he said was recycled from dissents and opinions he has written. But virtual speeches to an audience by a Supreme Court justice are rare, and the 30-minute lecture by Alito, apparently aided by a teleprompter and in front of a plain, blue background, made an impact.

Nov. 11

Top Headlines


Attempted Coup By Trump?


U.S. Law, Crime, Courts


Top Stories

djt biden smiles resized

ny times logoNew York Times, Investigation: The Times Called Officials in Every State: No Evidence of Voter Fraud, Nick Corasaniti, Reid J. Epstein and Jim Rutenberg, Nov. 11, 2020 (print ed.). New York Times, Statements Amount to Forceful Rebuke of Trump’s False Claims. The president and his allies have baselessly claimed that rampant voter fraud stole victory from him. Officials contacted by The Times said that there were no irregularities that affected the outcome.

Election officials in dozens of states representing both political parties said that there was no evidence that fraud or other irregularities played a role in the outcome of the presidential race, amounting to a forceful rebuke of President Trump’s portrait of a fraudulent election.

Over the last several days, the president, members of his administration, congressional Republicans and right wing allies have put forth the false claim that the election was stolen from Mr. Trump and have refused to accept results that showed Joseph R. Biden Jr. as the winner.

But top election officials across the country said in interviews and statements that the process had been a remarkable success despite record turnout and the complications of a dangerous pandemic.

“There’s a great human capacity for inventing things that aren’t true about elections,” said Frank LaRose, a Republican who serves as Ohio’s secretary of state. “The conspiracy theories and rumors and all those things run rampant. For some reason, elections breed that type of mythology.”

Steve Simon, a Democrat who is Minnesota’s secretary of state, said: “I don’t know of a single case where someone argued that a vote counted when it shouldn’t have or didn’t count when it should. There was no fraud.”

“Kansas did not experience any widespread, systematic issues with voter fraud, intimidation, irregularities or voting problems,” a spokeswoman for Scott Schwab, the Republican secretary of state in Kansas, said in an email Tuesday. “We are very pleased with how the election has gone up to this point.”

The New York Times contacted the offices of the top election officials in every state on Monday and Tuesday to ask whether they suspected or had evidence of illegal voting. Officials in 45 states responded directly to The Times. For four of the remaining states, The Times spoke to other statewide officials or found public comments from secretaries of state; none reported any major voting issues.

Statewide officials in Texas did not respond to repeated inquiries. But a spokeswoman for the top elections official in Harris County, the largest county in Texas with a population greater than many states, said that there were only a few minor issues and that “we had a very seamless election.” On Tuesday, the Republican lieutenant governor in Texas, Dan Patrick, announced a $1 million fund to reward reports of voter fraud.

Some states described small problems common to all elections, which they said they were addressing: a few instances of illegal or double voting, some technical glitches and some minor errors in math. Officials in all states are conducting their own review of the voting — a standard component of the certification process.

President Trump and his allies have baselessly claimed that rampant voter fraud stole victory from him. The Times contacted officials, representing both parties, in almost every state, who said that there were no irregularities that affected the outcome.

 Trump by Michael Vadon Creative Commons e1486885124813

ny times logoNew York Times, Fighting Election Results, Trump Employs a New Weapon: The Government, Peter Baker and Lara Jakes, Nov. 11, 2020 (print ed.). As President Trump and his administration insist he didn’t lose, the rest of the world has increasingly moved to accept Joe Biden’s victory.

President Trump, facing the prospect of leaving the White House in defeat in just 70 days, is harnessing the power of the federal government to resist the results of an election that he lost, something that no sitting president has done in American history.

In the latest sign of defiance, the president’s senior cabinet secretary fueled concerns on Tuesday that Mr. Trump would resist handing over power to President-elect Joseph R. Biden Jr. after legal challenges to the vote.

“There will be a smooth transition to a second Trump administration,” Secretary of State Mike Pompeo said.

djt pence yard sign logoMr. Trump’s attorney general has at the same time authorized investigations into supposed vote fraud, his general services administrator has refused to give Mr. Biden’s team access to transition offices and resources guaranteed under law and the White House is preparing a budget for next year as if Mr. Trump will be around to present it.

The president has also embarked on a shake-up of his administration, firing Defense Secretary Mark T. Esper as well as the heads of three other agencies while installing loyalists in key positions at the National Security Agency and the Pentagon. Allies expect more mike pompeo portraitto come, including the possible dismissals of the directors of the F.B.I. and the C.I.A.

He snapped when asked if Mr. Trump’s delaying tactics undermined the State Department’s efforts to pressure political leaders abroad to accept losing results. “That’s ridiculous and you know it’s ridiculous, and you asked it because it’s ridiculous,” he said.

Mr. Pompeo, right, can often be sarcastic, particularly when speaking to reporters, but the State Department made no effort to clarify if he was joking. Asked later on Fox News if he was serious, he did not say. “We will have a smooth transition,” he said. “And we will see what the people ultimately decided, when all the votes have been cast.”

washington post logoWashington Post, Postal worker admits making up allegations of ballot tampering, officials say, Shawn Boburg and Jacob Bogage, Nov. 11, 2020 (print ed.). A Pennsylvania postal worker whose claims have been cited by top Republicans as potential evidence of widespread voting irregularities recanted to U.S. Postal Service investigators.

us mail logoA Pennsylvania postal worker whose claims have been cited by top Republicans as potential evidence of widespread voting irregularities admitted to U.S. Postal Service investigators that he fabricated the allegations, according to three people briefed on the investigation and a statement from a House congressional committee.

Richard Hopkins’ claim that a postmaster in Erie, Pa., instructed postal workers to backdate ballots mailed after Election Day was cited by Sen. Lindsey O. Graham (R-S.C.) in a letter to the Department of Justice calling for a federal investigation. Attorney General William P. Barr subsequently authorized federal prosecutors to open probes into credible allegations of voting irregularities and fraud, a reversal of long-standing Justice Department policy.

But on Sunday, Hopkins, 32, told investigators from the U.S. Postal Service’s Office of Inspector General that the allegations were not true, and he signed an affidavit recanting his claims, according to the sources who spoke on condition of anonymity to describe an ongoing investigation. Democrats on the House oversight committee tweeted late Tuesday that the Justice Department logo“whistleblower completely RECANTED.”

The reversal comes as Trump has refused to concede to President-Elect Joe Biden (D), citing unproven allegations about widespread voter fraud in an attempt to swing the results in his favor. Republicans held up Hopkins’ claims as among the most credible because he signed an affidavit swearing that he overheard a supervisor instructing colleagues to backdate ballots mailed after Nov. 3.

The Trump campaign provided that affidavit to Graham, who in turn asked the Department of Justice and Federal Bureau of Investigation to launch an investigation. The Trump campaign also cited reports of the allegation in a federal lawsuit filed Monday against Pennsylvania election officials that seeks to prevent them from certifying the states’ election results.

john roberts djt state of union

Chief U.S. Supreme Court Justice John Roberts, left, exchanges a greeting with Donald Trump at a State of the Union address.

washington post logoWashington Post, Justices show they’re inclined to uphold ACA, Ann E. Marimow, Amy Goldstein, Paige Winfield Cunningham, Paulina Firozi and Robert Barnes, Nov. 11, 2020 (print ed.). Justices urged to defer to Congress and uphold ACA; Breyer takes issue with interpretation of ‘shall;’ Alito compares mandate to a plane continuing to fly without one part; Roberts skeptical of allowing challengers to ‘roam around’ the ACA; Gorsuch presses ACA challengers about their specific injury; Thomas draws an analogy to wearing masks during the pandemic, Nov. 10, 2020. California solicitor general urges court not to ‘tear down’ the ACA; Three questions for the justices reviewing the Affordable Care Act.

The Supreme Court on Tuesday is reviewing the latest Republican challenge to the Affordable Care Act, reviving the partisan battle over health care that was central to the presidential contest and the confirmation of the newest justice, Amy Coney Barrett.

The court is reviewing a decision that found part of the law, also known as Obamacare, unconstitutional. The case raises questions about the fate of health insurance for millions of Americans. The lawsuit was brought by Republican state officials and is backed by President Trump’s administration, which has prioritized abolishing the law.

Three justices appointed by Trump — Barrett, Neil M. Gorsuch and Brett M. Kavanaugh — are on the case, along with Chief Justice John G. Roberts Jr. and Justices Samuel A. Alito Jr., Steven G. Breyer, Elena Kagan, Sonia Sotomayor and Clarence Thomas.


Attempted Coup By Trump?

djt john bolton cnn

washington post logoWashington Post, Opinion: John Bolton: Time is running out for Trump — and Republicans who coddle him, John R. Bolton, above right in a cable screenshot, Nov. 11, 2020. A Ylale Law School graduate and lifelong Republican, John R. Bolton served as national security adviser under President Trump and is the author of “The Room Where It Happened: A White House Memoir.”

As of this writing, the Republican Party has not suffered permanent damage to its integrity and reputation because of President Trump’s post-election rampaging. This will not be true much longer.

john bolton room where cover CustomIt is simply a truism that Trump has a legal right to pursue all appropriate election-law remedies to ensure an accurate, lawful vote count. To be credible, however, any aggrieved candidate must at some point produce valid legal arguments and persuasive evidence.

Trump has so far failed to do so, and there is no indication he can. If he can’t, his “right” to contest the election is beside the point.

The real issue is the grievous harm he is causing to public trust in America’s constitutional system. Trump’s time is running out, even as his rhetoric continues escalating. And time is running out for Republicans who hope to maintain the party’s credibility, starting with Georgia’s two Senate runoffs in January. Here is the cold political reality: Trump is enhancing his own brand (in his mind) while harming the Republican brand. The party needs a long internal conversation about the post-Trump era, but first it needs to get there honorably.

Consider the competing interests. Donald Trump’s is simple and straightforward: Donald Trump. The near-term Republican interest is winning the mark esperGeorgia runoffs. The long-term Republican interest emphatically involves winning those Senate seats, but it also involves rejecting Trump’s personalized, erratic, uncivil, unpresidential and ultimately less-than-effective politics and governance.

Trump is engaging in what could well be a systematic purge of his own administration, starting with the utterly unjustified firing of Defense Secretary Mark T. Esper, right, this week and continuing through high- and mid-level civilian offices in the department. Lisa Gordon-Hagerty, head of the National Nuclear Safety Administration, was forced to resign. Washington is filled with rumors that the CIA and FBI directors are next.

rutherford hayes samuel tilden resized

OpEdNews, Opinion: Trump and Republicans Staging a Hayes/Tilden Coup, Rob Kall, right, Nov. 11, 2020. They Don't Need to Win Lawsuits, Just Stall. rob kall newoenearthlogoDonald Trump and the leadership of the Republican party are aggressively staging a coup, inspired by the 1876 Tilden Hayes election, and the Democratic Party and their mainstream media surrogates, CNN and MSNBC have not yet caught on. They are laughing at a situation that must be aggressively addressed with dire urgency. Mainstream Pundits are smarmily laughing at Trump, when it is they who are the clueless ones.

Mark my words. The 1876 Hayes Tilden election will become a frequently cited element of the news very soon.

It doesn't matter if Trump wins or loses the plethora of lawsuits he and his surrogates are filing across the nation. As long as he slows down the process and delays the finalization and confirmation of state vote counts he will win the election. If even a few Republican run states refuse to certify the vote counts, Biden will no longer have the 270 electoral votes. If that happens, Trump won't have the 270 electoral votes either. Under those circumstances, the election will fall to be decided by the House of Representatives. The process there will hand the victory to Trump.

Thom Hartmann and Greg Palast predicted this possibility earlier in the year. Now, election integrity activist Jonathan Simon and journalist David Sirota are also weighing in.

Earlier this week, in an interview, Greg Palast explained to me, describing the coup as an "article 2 gambit. Now article 2 of the constitution says that the state legislatures pick your electors. Now i bet you thought we all know we don't actually vote for president we vote for electors. No, you don't even vote for electors, your vote is purely advisory.

America does not have a democracy. We give advice to each state legislature and the legislatures then determine which electors go to the electoral college."

On May 8th, in an interview on my Bottom-up Show, Thom Hartmann theoretically described what is actually now happening, citing a similar occurrence in the 1876 Tilden Hayes presidential election, where the article 2 Gambit worked to reverse the election.

OpEdNews, Opinion: Trump Is Sandbagging to Send Election to the House; Election Integrity Should Not Help Him, Jonathan Simon, shown at right oenearthlogobelow, author of "Code Red: Computerized Election Theft and The New American Century," also shown below, Nov. 11, 2020.

jonathan simonAs Donald Trump, facing a defeat he signaled in advance he would not (and could not, given the stakes and his nature) accept, files lawsuit after lawsuit in a kind of virtuoso false-note cadenza improvised on a lifelong theme of litigiousness, some of my election integrity colleagues (and good friends) have declared support for Trump's attempted putsch, "open-mindedly" asserting it is our vehicle to a new election-integrity dawn. The ironies could not be much richer.

We do face what one of my colleagues, appalled by Trump, described as a "horrible dilemma:" to seize the rarest of opportunities to secure bipartisan support and press for serious election reform or essentially keep silent vigil and pray Trump's con doesn't work. The answer, to me, becomes clearer with every CAPS LOCK TWEET, frivolous lawsuit, and breathless Trump/GOP fundraising appeal. This crisis is being played for money (lots of it) and short- and long-term political advantage. It has literally nothing to do with democracy or election integrity. And it is being played by the same cynics who doubled down on every thumb on the electoral scales, including voter-suppression and disinformation schemes galore.

It is worthy of note that Trump has never stopped claiming that there were "millions of illegal voters" who cost him the popular vote victory in 2016 without ever producing a shred of evidence to substantiate that eternally repeated claim. In fact, he slapped together an Electoral Integrity "Commission" to ferret out the fraudsters and then disbanded it without so much as a Report.

We do face what one of my colleagues, appalled by Trump, described as a "horrible dilemma:" to seize the rarest of opportunities to secure bipartisan support and press for serious election reform or essentially keep silent vigil and pray Trump's con doesn't work. The answer, to me, becomes clearer with every CAPS LOCK TWEET, frivolous lawsuit, and breathless Trump/GOP fundraising appeal. This crisis is being played for money (lots of it) and short- and long-term political advantage. It has literally nothing to do with democracy or election integrity. And it is being played by the same cynics who doubled down on every thumb on the electoral scales, including voter-suppression and disinformation schemes galore.

It is worthy of note that Trump has never stopped claiming that there were "millions of illegal voters" who cost him the popular vote victory in 2016 without ever producing a shred of evidence to substantiate that eternally repeated claim. In fact, he slapped together an Electoral Integrity "Commission" to ferret out the fraudsters and then disbanded it without so much as a Report.

jonathan simon code redAnd it is further worthy of note that Trump's current strategy is not about actually overturning enough votes to win election legitimately. His own aides have acknowledged that is impossible. Rather it is fixed on delaying certification past the applicable deadlines. The law favors delay and Team Trump knows it.

His plan is to prevent certification of 270 Biden electoral votes by tying up several state processes in court past the state deadlines (the "hard" one being 12/14, when the Electoral College votes on slates) and then either importuning friendly state legislatures (the GOP controls Georgia, Wisconsin, Michigan, Pennsylvania, and Arizona) to send Trump elector slates to Congress, or simply throwing the election to the House, where the GOP controls the majority of state delegations (under the Twelfth Amendment, the House votes for president by state delegation) so Trump wins.

Does that look like democracy or electoral integrity to you? To me it looks like yet another right-wing scheme to steal an election and haven't we been through (and been irreparably harmed by) enough of those? Don't kid yourselves this is a clear and present danger.

So I think we should examine what's going on now in context. Yes, our electoral system is manifestly in need of serious reform. And yes, no Democrat, since The Help America Vote Act (2002) ushered in the Computerized Voting Era, has challenged the system's non-transparency or the parade of red flags that that non-transparency has given rise to. But Trump has no intention of pursuing a genuine investigation bent on bringing transparency to the system. He is interested in the welfare of no one and nothing other than Donald J. Trump not his party, not his nation, not its voters. That has been demonstrated beyond any disputing. He will lie. He will falsely accuse. He might even commit fraud as part of his desperate putsch.

I think our responsibility is not to join the Democrats and media in chanting how wonderful and legitimate our electoral system is. We know better than anyone that it is not. But our responsibility is to keep careful watch over the delay-scam that Trump is now setting in motion, and give what support we can to the beleaguered election officials who will now be attacked ruthlessly and desperately (my god, they're even going after their own GOP Secretary of State Brad Raffensperger in Georgia!). So far Trump has failed for lack of evidence in virtually every case he has taken to court, some before highly partisan right-leaning judges. We can let that process play out (it is infinitely more than Kerry or Clinton or Ossoff or Coakley or any Democrat-of-note with the exception of Al Franken has ever ventured). But we don't have to and shouldn't provide more anecdotal or ambiguous forensic fuel to a desperate man who has utter contempt for fact and evidence, or to the party that yet again is riding cynical shotgun for him.

It's not that we as Democrats, Progressives, or EI advocates "won." Given the polls and the control of the equipment, and given all the other outcomes (from Senate to House to state legislatures), Democrats are hardly the "winners" of this election. We have at least as good reason, in the pervasive red shift from both exit and tracking polls, to suspect wholesale rigging to benefit Republican candidates, as Trump has to suspect retail indeed much better, given the egregious numbers and the whole forensic history of the post-HAVA era.

Perhaps this will turn out to be a long-postponed moment of truth and reckoning for our voting system and for a counting process incidentally or diabolically designed for concealment. We continue to crunch numbers and search for telltale patterns of "mistabulation." Computerized election fraud rarely, if ever, comes out and shakes your hand. Trust in our electoral process and its core protocols has, as I've cautioned with increasing urgency over the past two decades, at last jumped the shark, hit the wall, gone over the cliff so perhaps there will now be a more receptive audience for our near-proofs and desperate pleas.

But you don't get Trump if you don't get that he will use everyone and everything he possibly can for his own ends -- and lose you when you no longer serve them. He's demonstrated that his whole life with hardly a single flinch.

You think you'll ride his scattershot charges to some new dawn for electoral integrity. If you get in bed with him (and do anything to further nurture the hopes of his besotted followers), don't expect to get up in the morning.

Wayne Madsen Report (WMR), Pompeo committed treacherous sedition with his announcement of Trump's coup, Wayne Madsen, left, Nov. 11, 2020. Secretary wayne madsen may 29 2015 cropped Smallof State Mike Pompeo committed an act of treacherous sedition when he commented on a smooth presidential transition at a Tuesday press conference at the Department of State. In answer to a Fox News's reporter's question about the transition, Pompeo relied, "There will be a smooth transition to a second Trump administration."

That comment, by the senior Cabinet officer of the United States, sent foreign ministries around the world, as well as the diplomatic corps in the United States, into a bewildered frenzy.

wayne madesen report logoThe U.S. Secretary of State position is far more than that of a foreign minister. The Secretary of State also acts as a type of notary and official document repository for the Executive Branch of government. The Secretary of State acknowledges and archives documents such as international treaties, instruments of surrender, and letters of resignation from the president and vice president of the United States.

When Pompeo wrongly announced that Donald Trump had been elected to a second term, over the wishes a majority of the state electors chosen by the American voters, he was misusing his position in an official capacity and to a degree never before seen in American history.

American System TV, Opinion: Is Trump Unleashing an Autogolpe against US Constitution? Webster G. Tarpley, right, Nov. 11, 2020. Ominous Signs Multiply: webster tarpley 2007Trump’s Defense Secretary Esper Brusquely “Terminated” by Tweet.

  • Pentagon Boss Had Publicly Rejected Trump’s Bid to Use Cover of Insurrection Act to Deploy Federal Troops Against Peaceful Protesters;
  • Replacement is Christopher Miller, Current Head of National Counterterrorism Information Center;
  • Firing of Esper Introduces Chaos Factors at Worst Possible Time, with China’s Aggressor Xi Considering Attack on Taiwan.
  • Palmer Report, Opinion: The Georgia hand recount is about to put Donald Trump one step closer to the door, Bill Palmer, Nov. 11, 2020. Joe Biden is ahead by 14,000 votes in Georgia, making him the clear winner, but due to the relatively close margin the state has ordered a hand recount. Good. This will help to finish off Donald Trump more quickly.

    Trump has literally 0.0% chance of somehow magically overturning the election result, and he knows it. He’s only “contesting” the election so he can keep fundraising from his gullible supporters; the fine print literally says that he gets to keep the majority of the money he raises. Trump won’t give up the ghost until the money starts running dry.

    The Georgia recount has no chance of changing the result; even hand recounts never change the margin by more than a few hundred votes. So once this recount is finished, Joe Biden will be way ahead again, and the major media outlets will go ahead and declare him the winner there.

    That’s a big deal, because Trump’s argument that he’s magically going to overturn the election result is based on the notion that he can somehow win Pennsylvania, Arizona, and Georgia to get him over 270. Some news outlets have called Arizona for Biden and some haven’t. But once they all call Georgia for Biden after the recount, it’ll mean that Trump can’t get to 270 even if he somehow flipped Pennsylvania, which has been the main focus of his imaginary voter fraud claims.

    In other words, once the Georgia recount is over, Donald Trump will have a hard time selling the “I still might secretly win” nonsense to anyone, even many of his own supporters. At that point there won’t be any money in pretending to contest the election anymore, and Trump will have to shift his focus to trying to give himself a softer landing when it comes to facing prison and bankruptcy after he’s out of office.

Nov. 10

washington post logoWashington Post, Biden behaves as the incoming president, even as Trump balks at giving up power, Annie Linskey and Sean Sullivan, Nov. 10, 2020 (print ed.). President-elect Joe Biden sought to project the authority of an incoming president Monday as he dealt with matters domestic and international, even as the defeated incumbent continued to balk at turning over the reins.

Biden began taking calls from foreign leaders, speaking Monday with Canadian Prime Minister Justin Trudeau. He also was weighing whom to appoint to top White House positions, with several of his longtime advisers expected to take senior roles. And he turned his attention to the coronavirus, dispatching a key aide to brief Senate Democrats this week and making a strong pitch to Americans of every ideology to follow public health recommendations.

Biden urged Americans to wear masks, at one point holding one up during a speech in Wilmington, and sought to depoliticize the act of putting one on.

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washington post logoWashington Post, White House orders agencies to rebuff Biden transition team, Lisa Rein, Matt Viser, Greg Miller and Josh Dawsey, Nov. 10, 2020 (print ed.). The Trump White House on Monday instructed senior government leaders to block cooperation with President-elect Joe Biden’s transition team, escalating a standoff that threatens to impede the transfer of power and prompting the Biden team to consider legal action.
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Officials at agencies across the government who had prepared briefing books and carved out office space for the incoming Biden team to use as soon as this week were told instead that the transition would not be recognized until the Democrat’s election was confirmed by the General Services Administration, the low-profile agency that officially starts the transition.

While media outlets on Saturday projected Biden as the winner, President Trump has not conceded the election.

“We have been told: Ignore the media, wait for it to be official from the government,” said a senior administration official, who like others spoke on the condition of anonymity because the person was not authorized to speak publicly.

washington post logoWashington Post, Live Updates: Justices show they’re inclined to uphold ACA, Ann E. Marimow, Amy Goldstein, Paige Winfield Cunningham, Paulina Firozi and Robert Barnes, Nov. 10, 2020. Justices urged to defer to Congress and uphold ACA; Breyer takes issue with interpretation of ‘shall;’ Alito compares mandate to a plane continuing to fly without one part; Roberts skeptical of allowing challengers to ‘roam around’ the ACA; Gorsuch presses ACA challengers about their specific injury; Thomas draws an analogy to wearing masks during the pandemic, Nov. 10, 2020. California solicitor general urges court not to ‘tear down’ the ACA; Three questions for the justices reviewing the Affordable Care Act.

The Supreme Court on Tuesday is reviewing the latest Republican challenge to the Affordable Care Act, reviving the partisan battle over health care that was central to the presidential contest and the confirmation of the newest justice, Amy Coney Barrett.

The court is reviewing a decision that found part of the law, also known as Obamacare, unconstitutional. The case raises questions about the fate of health insurance for millions of Americans. The lawsuit was brought by Republican state officials and is backed by President Trump’s administration, which has prioritized abolishing the law.

Three justices appointed by Trump — Barrett, Neil M. Gorsuch and Brett M. Kavanaugh — are on the case, along with Chief Justice John G. Roberts Jr. and Justices Samuel A. Alito Jr., Steven G. Breyer, Elena Kagan, Sonia Sotomayor and Clarence Thomas.


Trump by Michael Vadon Creative Commons e1486885124813

washington post logoWashington Post, As an ex-president, Trump could disclose the secrets he learned while in office, current and former officials fear, Shane Harris, Nov. 10, 2020 (print ed.). As president, Donald Trump selectively revealed highly classified information to attack his adversaries, gain political advantage and to impress or intimidate foreign governments, in some cases jeopardizing U.S. intelligence capabilities. As an ex-president, there’s every reason to worry he will do the same, thus posing a unique national security dilemma for the Biden administration, current and former officials and analysts said.

All presidents exit the office with valuable national secrets in their heads, including the procedures for launching nuclear weapons, intelligence-gathering capabilities — including assets deep inside foreign governments — and the development of new and advanced weapon systems.

But no new president has ever had to fear that his predecessor might expose the nation’s secrets as President-elect Joe Biden must with Trump, current and former officials said. Not only does Trump have a history of disclosures, he checks the boxes of a classic counterintelligence risk: He is deeply in debt and angry at the U.S. government, particularly what he describes as the “deep state” conspiracy that he believes tried to stop him from winning the White House in 2016 and what he falsely claims is an illegal effort to rob him of reelection.

washington post logoWashington Post, Barr clears Justice Dept. to investigate alleged voting irregularities as Trump makes unfounded claims, Matt Zapotosky and Devlin Barrett, Nov. 10, 2020 (print ed.). william barr new oAttorney General William P. Barr, right, on Monday gave federal prosecutors approval to pursue allegations of “vote tabulation irregularities” in certain cases before results are certified and indicated he had already done so “in specific instances” — a reversal of long-standing Justice Department policy that quickly drew internal and external criticism for fueling unfounded claims of massive election fraud pushed by President Trump and other conservatives.

Justice Department log circularRichard Pilger, head of the Justice Department’s Election Crimes Branch, stepped down from his position in protest over Barr’s directive — though he remains at the agency, according to people familiar with the matter, speaking on the condition of anonymity to discuss a politically volatile situation.

The people said Barr had first broached a similar idea some weeks ago and that political leadership in the Justice Department’s Criminal Division, of which the Election Crimes Branch is a part, pushed back. Those officials were blindsided when Barr’s memo was released on Monday, the people said.

ny times logoNew York Times, Growing Discomfort at Law Firms Representing Trump in Election Lawsuits, Jessica Silver-Greenberg, Rachel Abrams and David Enrich, Nov. 10, 2020 (print ed.). Some lawyers at Jones Day and Porter Wright, which have filed suits about the 2020 vote, said they were worried about undermining the electoral system.

Like many big law firms, Jones Day, whose roots go back to Cleveland in the late 1800s, has prided itself on representing controversial clients.

There was Big Tobacco. There was the Bin Laden family. There was even the hated owner of the Cleveland Browns football team as he moved the franchise to Baltimore.

Now Jones Day is the most prominent firm representing President Trump and the Republican Party as they prepare to wage a legal war challenging the results of the election. The work is intensifying concerns inside the firm about the propriety and wisdom of working for Mr. Trump, according to lawyers at the firm.

Doing business with Mr. Trump — with his history of inflammatory rhetoric, meritless lawsuits and refusal to pay what he owes — has long induced heartburn among lawyers, contractors, suppliers and lenders. But the concerns are taking on new urgency as the president seeks to raise doubts about the election results.

Some lawyers at Jones Day and Porter Wright, which have filed suits about the 2020 vote, said they were worried about undermining the electoral system.

At another large firm, Porter Wright Morris & Arthur, based in Columbus, Ohio, lawyers have held internal meetings to voice similar concerns about their firm’s election-related work for Mr. Trump and the Republican Party, according to people at the firm. At least one lawyer quit in protest.

Already, the two firms have filed at least four lawsuits challenging aspects of the election in Pennsylvania. The cases are pending.

The latest salvo came on Monday evening, when the Trump campaign filed a suit in federal court in Pennsylvania against the Pennsylvania secretary of state and a number of county election boards. The suit — filed by lawyers at Porter Wright — alleged that there were “irregularities” in voting across the state.

ny times logoNew York Times, Opinion: Trump Loves to Use the Pardon Power. Is He Next? Jack Goldsmith (co-author of “After Trump: Reconstructing the Presidency”), Nov. 10, 2020 (print ed.).  There is little to be done right now about the president’s self-serving ways, but Congress can limit future abuses.

President Trump has abused the pardon power like none of his predecessors. But we likely ain’t seen nothing yet. Now that he has lost the election, Mr. Trump will likely pardon himself, friends, family members and Trump business entities and employees for any crime they might have committed before or during his presidency.

Mr. Trump’s pardons to date, and those likely to come during a transition, reveal the problems with the supposed “absoluteness” of the pardon power — and should prompt legal reform to clarify limits on its abuse.

The pardon power that the Constitution confers on the president has just two stated limitations: A president cannot pardon for impeachment, and a presidential pardon can excuse or mitigate punishment only for federal offenses. There is little that can be done at this point to stave off a potential wave of pardons in the lame duck period, but the federal crime limitation means that Mr. Trump cannot stop state criminal investigations, including one in progress by the Manhattan district attorney into possible bank and insurance fraud by Mr. Trump and his companies.

Nov. 9

washington post logoWashington Post, McCabe will defend opening Russia probe in testimony before GOP-controlled Senate panel, Matt Zapotosky, Nov. 9, 2020. As he testifies Tuesday before the Senate Judiciary Committee, former acting FBI director Andrew McCabe will forcefully defend the bureau’s decision to initiate an investigation into whether the Trump campaign coordinated with Russia to influence the 2016 election, telling lawmakers that officials had a “duty” to do so because of the information that had come to them, according to a copy of his prepared remarks.
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McCabe, a longtime FBI official who briefly led the bureau after President Trump fired Director James B. Comey in 2017, is the fourth former high-ranking law enforcement official to testify before the Republican-controlled committee as a part of its review of the Russia investigation.

FBI logoLike those before him, McCabe will concede some mistakes — particularly in how the bureau applied to a secret court to conduct surveillance on a former Trump campaign adviser — but offer a robust counter to broader conservative attacks on the investigation, according to a copy of his prepared remarks. McCabe personally approved the decision to investigate Trump for possible obstruction of justice and is likely to face questions on that decision.

“Let me be very clear. We didn’t open a case because we liked one candidate or didn’t like the other one. We didn’t open a case because we intended to stage a coup or overthrow the government. We didn’t open a case because we thought it might be interesting or because we wanted to drag the FBI into a heated political contest,” McCabe will say, according to the remarks. “We opened a case to find out how the Russians might be undermining our elections. We opened a case because it was our obligation — our duty — to do so. We did our job.”

The probe by the committee’s chairman, Sen. Lindsey O. Graham (R-S.C.), is one of several efforts to investigate the investigators who led the Russia probe. If Republicans maintain control of the Senate, it is perhaps the one most likely to persist after President-elect Joe Biden is sworn in.

Senate Republicans accelerate public scrutiny of Trump-Russia investigation as election looms

The investigation is largely seeking to build on that of Justice Department Inspector General Michael Horowitz, who found the FBI had adequate reason to initiate the probe but made serious, troubling errors in applying to the Foreign Intelligence Surveillance Court to monitor former Trump campaign adviser Carter Page. It comes in addition to the investigation by U.S. Attorney John Durham, who was specially tapped by Attorney General William P. Barr to review the Russia probe and has publicly signaled some disagreement with Horowitz.

Nov. 7


Vox, Opinion: A Coup Attempt In Plain Sight, Ezra Klein, Nov. 7, 2020. How do we cover it when it’s happening here? A few years ago, there was a boom of articles called “If it happened there,” imagining how the American press would cover this or that story if it happened in another country. How would we cover the government shutdown if it happened in another country? The Ferguson protests? The Oregon militia siege? George Floyd’s killing? Mike Bloomberg?

Slate’s Joshua Keating popularized the form, but other outlets, including Vox, have deployed it. The intent was to use the tropes of foreign coverage to create a sense of what the literary critic Darko Suvin called “cognitive estrangement”: severing us from the familiarity and overconfidence that can dull our awareness of extraordinary events. And so you’d get leads like, “the pleasant autumn weather disguises a government teetering on the brink. Because, at midnight Monday night, the government of this intensely proud and nationalistic people will shut down, a drastic sign of political dysfunction in this moribund republic.”

djt as chosen oneBut the slight air of parody lent the whole enterprise a sense of unreality. America isn’t a banana republic. It wasn’t happening there. It was happening here, and that made all the difference. In order to even see the danger, to recognize the depth of tensions or the possibilities of fracture, we had to control for American exceptionalism, for the implicit belief that we were the United States of America, and we were different.

If the past four years — and the past four days — have proven anything, it’s that we are not as different as we believed, not as kissed by providence as we hoped. Perhaps we are not different at all. We need to cover it as if it happening here, because it is.
Donald Trump is trying to discredit an election he is losing

Joe Biden has won the presidency. But the current president of the United States, Donald Trump, is attempting a coup in plain sight. “I WON THIS ELECTION, BY A LOT!” he tweeted on Saturday morning. This came after he demanded that states cease counting votes when the total began to turn against him, after his press secretary shocked Fox News anchors by arguing that legally cast votes should be thrown out.

The Trump administration’s current strategy is to go to court to try and get votes for Biden ruled illegitimate, and that strategy explicitly rests on Trump’s appointees honoring a debt the administration, at least, believes they owe. One of his legal advisers said, “We’re waiting for the United States Supreme Court — of which the President has nominated three justices — to step in and do something. And hopefully Amy Coney Barrett will come through.”

If that fails, and it will, Mark Levin, one of the nation’s most popular conservative radio hosts, is explicitly calling on Republican legislatures to reject the election results and seat Donald Trump as president anyway. After Twitter tagged the tweet as contested, Trump’s press secretary weighed in furiously on Levin’s behalf.

That this coup probably will not work — that it is being carried out farcically, erratically, ineffectively — does not mean it is not happening, or that it will not have consequences. Millions will believe Trump, will see the election as stolen. The Trump family’s Twitter feeds, and those of associated outlets and allies, are filled with allegations of fraud and lies about the process (reporter Isaac Saul has been doing yeoman’s work tracking these arguments, and his thread is worth reading). It’s the construction of a confusing, but immersive, alternative reality in which the election has been stolen from Trump and weak-kneed Republicans are letting the thieves escape.

This is, to borrow Hungarian sociologist Bálint Magyar’s framework, “an autocratic attempt.” That’s the stage in the transition toward autocracy in which the would-be autocrat is trying to sever his power from electoral check. If he’s successful, autocratic breakthrough follows, and then autocratic consolidation occurs. In this case, the would-be autocrat stands little chance of being successful. But he will not entirely fail, either. What Trump is trying to form is something akin to an autocracy-in-exile, an alternative America in which he is the rightful leader, and he — and the public he claims to represent — has been robbed of power by corrupt elites.

The corruption of the GOP will outlive Trump’s presidency

Members of the Trump family are explicitly, repeatedly, trying to make the acceptance of their conspiracies a litmus test for ambitious Republicans. And it is working. To read elected Republicans today — with a few notable exceptions, like Sen. Mitt Romney — is to read a careful, cowardly double-speak. Politician after politician is signaling, as Vice President Mike Pence did, solidarity with the president, while not quite endorsing his conspiracies. Of course every legal vote should be counted. Of course allegations of fraud should be addressed. But that is not what the president is demanding — he is demanding the votes against him be ruled illegal — and they know it.

What we are not seeing, in any way, is a wholesale rejection on the right of Trump’s effort to delegitimize the election. And thus there is no reason to believe Trump will not retain his hold over much of the party, and much of its base, going forward.

Even if Trump is rejected in this election, the Republican Party that protected and enabled him will not be. Their geographic advantage in the Senate insulates them from anything but massive, consecutive landslide defeats, and their dominance over the decennial redistricting process has given them a handicap in the House, too.

Here’s the grim kicker: The conditions that made Trump and this Republican Party possible are set to worsen. Republicans retained control of enough statehouses to drive the next redistricting effort, too, and their 6-3 majority on the Supreme Court will unleash their map-drawers more fully. The elections analyst G. Elliott Morris estimates that the gap between the popular vote margin and the tipping point state in the Electoral College will be 4 to 5 percentage points, and that the GOP’s control of the redistricting process could push it to 6 to 7 points next time.

Nov. 4

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U.S. 2020 Elections, Politics


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djt biden smiles resized

washington post logoWashington Post, Counting continues in key battlegrounds: Biden 224, Trump 213, John Wagner, Nov. 4, 2020 (8:06 a.m. EST). White House race hangs in balance as votes are counted in key states.

With millions of votes still being counted, the outcome of the race between President Trump and Democratic nominee Joe Biden remained in flux, with the possibility that the winner would not be known for days. Key states where results were outstanding included Pennsylvania, Wisconsin and Michigan; Democratic stronghold counties in Georgia were still being counted, as well.

Early Wednesday, Trump falsely asserted election fraud, pledged to mount a legal challenge to official state results and made a premature claim of victory. Biden insisted that “we believe we’re on track to win this election” and pleaded for patience, citing several key states where the vote count was ongoing.

  • Biden is projected to win California, New York, Illinois, New Jersey, Virginia, Washington, Massachusetts, Maryland, Minnesota, Colorado, Connecticut, Hawaii, Oregon, New Mexico, New Hampshire, Rhode Island, Vermont, Delaware and the District of Columbia, plus one electoral vote in Nebraska.
  • Trump is projected to win Texas, Florida, Ohio, Indiana, Tennessee, Missouri, Alabama, South Carolina, Kentucky, Louisiana, Oklahoma, Arkansas, Iowa, Kansas, Mississippi, Utah, West Virginia, Idaho, Montana, South Dakota, North Dakota and Wyoming, plus three electoral votes in Nebraska, according to Edison Research.
  • House Democrats appeared on track to secure another two years in the majority. But the party looked set to fall drastically short of its bullish predictions that it would cut deep into Trump country to grow its majority.
  • Party control of the Senate hung in the balance, but Democratic hopes of securing a majority appeared to dwindle.

Palmer Report, Opinion: Here’s what it comes down to now, Bill Palmer, right, Nov. 4, 2020 (7:37 a.m. EST). In the end, it all comes down to five states. The good news for Joe Biden is that the states he bill palmerneeds to win seem to be trending in his direction as the sun is coming up.

Joe Biden has clearly pulled ahead in Wisconsin. Decision Desk has him up by about 17,000 votes; MSNBC has him up by about 21,000 votes. Kornacki just said on air that there isn’t much bill palmer report logo headerleft to come in for Wisconsin one way or the other.

An hour ago Joe Biden was down by a couple hundred thousand votes in Michigan, but now Decision Desk says he’s behind by just 2,200 votes. With most of the uncounted votes in Biden-friendly places like Detroit, expert Nate Cohn tweeted that it’s trending toward Biden and that it “may not be particularly close.”

Democratic-Republican Campaign logosWe should potentially know the Wisconsin and Michigan results by sometime later today. If Joe Biden wins them both, then he’ll only need to win one state out of Nevada, Pennsylvania, and. Georgia.

Nevada has turned out to be surprisingly close, but Cohn is seeing a “pretty good set of news” for Biden in the state. Pennsylvania and Georgia could go either way at this point. But if Biden wins Nevada, Michigan and Wisconsin, then he’s at 270, it’s over, and won’t have to wait for Pennsylvania or Georgia.

ny times logoNew York Times, Live Updates: Biden Urges Patience as Trump Threatens Court Action, Staff reports, Nov. 4, 2020. Dawn broke over the United States with the presidential election undecided and the specter of hours or even days of uncertainty ahead; Several states counted millions of ballots in razor-thin contests that could tip the balance to President Trump or Joe Biden; President Trump made reckless and baseless claims and said he would go to the Supreme Court before the vote count was complete. Here’s the latest.

Joe Biden expressed confidence to supporters, and President Trump falsely claimed victory. The threat of legal challenges mounted as lawyers were dispatched to battleground states. In Senate races, Democrats faced an uphill battle to claim a majority.

The morning after a chaotic, suspenseful Election Day, Americans awoke on Wednesday to the specter of hours or even days of uncertainty ahead, as several states counted millions of ballots in razor-thin contests that could tip the balance to President Trump or former Vice President Joseph R. Biden Jr.

After a long election night rife with dramatic twists and victories by both candidates, Mr. Trump and Mr. Biden battled to a near draw in electoral votes, each several dozen votes shy of the 270 needed to capture the presidency.

The field of battle had dwindled to a trio of northern states — Pennsylvania, Michigan and Wisconsin — that vaulted Mr. Trump to victory over Hillary Clinton in 2016, as well as Arizona and Nevada, where Mr. Biden had narrow leads, and Georgia, where he trailed but was gaining ground with every vote counted. Mr. supreme court graphicTrump prematurely declared victory and said he would petition the Supreme Court to demand a halt to the counting. Mr. Biden urged his supporters — and by implication, Mr. Trump — to show patience and allow the process to play out.

Their dueling, post-midnight appearances captured the raw struggle of a contest that many feared would leap from the campaign trail to the courts, as Mr. Trump’s lawyers readied legal maneuvers.

The president’s statement, delivered in the White House, amounted to a reckless attack on the democratic process during a time of deep anxiety and division in the country. Mr. Biden, speaking from a flag-draped stage in Wilmington, Del., appealed for calm and tried to reassure supporters rattled by a vote that was much closer than the pollsters or political analysts had predicted.

“It’s not my place or Donald Trump’s place to declare who has won this election,” Mr. Biden said, to a chorus of honking car horns at a drive-in rally. “That’s the decision of the American people.”

Mr. Trump, however, derided the vote-counting as “a major fraud on our nation. We want the law to be used in a proper manner,” he said. “We’ll be going to the U.S. Supreme Court. We want all voting to stop.”

Vote counting continued into the morning from Pennsylvania to Nevada, as election officials labored to process a flood of mail-in ballots and huge numbers of in-person votes in an election that was sure to shatter records.

So far, Mr. Trump was holding off Mr. Biden in two Southern states that the former vice president had hoped to snatch back from the Republican column: Georgia and North Carolina. These were not must-win states for Mr. Biden, but he spent heavily in both and visited them in the final stretch of the campaign.

washington post logoWashington Post, Opinion: Trump blatantly seeks to undermine democracy with attempts to falsely claim victory, subvert election, Dan Balz, Nov. 4, 2020. For four years, President Trump has sought to undermine the institutions of a democratic society, but never so blatantly as in the early morning hours of Wednesday. His attempt to falsely claim victory and to subvert the election itself by calling for a halt to vote-counting represents the gravest of threats to the stability of the country.

djt hands up mouth open CustomMillions of votes remain to be counted, votes cast legally under the laws of the states. Until they are all counted, the outcome of the election remains in doubt. Either he or former vice president Joe Biden could win an electoral college majority, but neither has yet done so, no matter what he says. Those are the facts, for which the president shows no respect.

A president who respected the Constitution would let things play out. But Trump has shown once again he cares not about the Constitution or the stability and well-being of the country or anything like that. He cares only about himself and retaining the powers he now holds. And so he cries “fraud” when there is no evidence whatsoever of any such thing.

amy coney barrett djt white house swearing in

washington post logoWashington Post, Trump campaign vows legal challenges as narrow race raises stakes for battles over which ballots will count, Elise Viebeck, Robert Barnes, Josh Dawsey, Emma Brown and Jon Swaine, Nov. 4, 2020. Razor-thin vote margins in a half-dozen presidential battleground states are raising the stakes for legal fights over which ballots will count, a strategy that President Trump’s campaign vowed Wednesday to aggressively pursue.

Legal experts noted that Trump cannot simply seek the Supreme Court’s intervention in the election and stop the counting of ballots, as he said early Wednesday that he intended to do.

djt pence yard sign logoBut with pivotal states such as Nevada, Michigan and Wisconsin still too close to call Wednesday morning, lawyers on both sides were gearing up for litigation — particularly over mail ballots. On Wednesday, the Trump campaign said it would immediately seek a recount in Wisconsin, where former vice president Joe Biden held a narrow edge.

Pennsylvania could also emerge as ground zero for legal jockeying. Before Election Day, the Supreme Court had declined to hear a challenge to the state’s extended deadline for accepting mail ballots, a case it could now take up if four justices agree. And Republicans have already filed two lawsuits in the state seeking to block votes from people who were allowed to correct mistakes on their mail ballots, alleging problems with that “cure” process.

Justin Clark, Trump’s deputy campaign manager, told allies, surrogates and donors in a call Wednesday morning that there will be “more litigation today, likely,” in the state, without offering specifics.

“We are full-court press to make sure all legal votes get counted properly in Pennsylvania,” he added, according to a recording of the call obtained by The Washington Post.

Top Trump campaign officials said that they expect a slate of legal challenges and have already deployed lawyers to a range of states.

“We are in recount territory in Wisconsin, in Michigan, the same way,” Clark said. “I believe we will be lodging legal challenges in both of those places because there is some . . . to counteract any funny business going on in both of those places.”

Meanwhile, the Biden campaign Wednesday said it was well-prepared to fend off any legal actions by the Trump campaign.

“We’re winning the election, we’ve won the election, and we’re going to defend that election,” Bob Bauer, a top attorney for the Biden campaign, said Wednesday morning in a call with reporters. “So we don’t have to do anything but protect the rights of voters and to stand up for the democratic process.”

Here are the voting lawsuits that could lead to post-election fights over ballots

Trump said early Wednesday that he wants the Supreme Court to determine which votes should count, falsely claiming victory while millions of votes were still outstanding.

“Frankly, we did win this election,” the president said at the White House. “We did win this election. So our goal now is to ensure the integrity for the good of this nation. This is a very big moment. This is a major fraud in our nation. We want the law to be used in a proper manner. So we’ll be going to the U.S. Supreme Court.”

There is no routine review of election results at the Supreme Court, and the court’s most consequential election case — Bush v. Gore, which effectively determined the outcome of the 2000 presidential race — did not arrive there for about a month.

The court’s power is constrained, and justices can entertain only specific constitutional questions that have risen from lower courts. A direct appeal from the president to intervene in an election does not count under these rules.

“You can’t bring a case directly to the Supreme Court in an election dispute. . . . And there’s no legal cause of action that says, ‘Stop the count and declare me the winner,’ ” said Joshua A. Douglas, law professor at the University of Kentucky’s Rosenberg College of Law.

Bauer said that if Trump at some point sought to go before the court to try to stop the counting of ballots that were lawfully cast, “he will be in for one of the most embarrassing defeats the president ever suffered before the highest court of the land.”

The Supreme Court’s work typically comes after a ruling in a case by a local judge that has gone through the appellate process. In Bush v. Gore, the court was reviewing decisions of the Florida Supreme Court, for instance, and issued its opinion Dec. 12, with the deadline for naming members of the electoral college looming.

Palmer Report, Opinion: Joe Biden pulls ahead, Donald Trump melts down about it, Twitter cracks down on him, Bill Palmer, Nov. 4, 2020. Wisconsin Elections Commission Administrator Meagan Wolfe just announced on NBC News that “all of the ballots have indeed been counted” in the state. This is a big deal because Biden is ahead by about 21,000 votes. No news outlet has called the state quite yet, but this mathematically means that Biden is the unofficial, likely, apparent, winner.

wisconsin map with largest cities Custombill palmer report logo headerMeanwhile Joe Biden pulled ahead in Michigan earlier this morning, and there is strong reason to believe that his lead there will continue to widen as the final ballots come in from Biden-friendly districts. If Biden wins Wisconsin and Michigan – along with Nevada, where he maintains a slim lead – then he’ll be President of the United States without even needing Pennsylvania or Georgia.

Suffice it to say that Donald Trump isn’t taking the news well. He tweeted a phony map which falsely claimed that Biden got 100% of late votes, adding “WHAT IS THIS ALL ABOUT?” In response, Twitter quickly pasted over his tweet with a warning label about it being misleading. Twitter also pasted over another conspiratorial Trump tweet.

While nothing is certain, it’s now clear that Joe Biden is likely to win the election – and Donald Trump knows it. No wonder he’s melting down.

 ny times logoNew York Times, The Remaining Vote in Pennsylvania Appears to Be Overwhelmingly for Biden, Nate Cohn, Nov. 4, 2020. Updated 7:19 a.m. EST. The president leads by nearly 700,000 votes, but there are 1.4 million absentee votes outstanding.

Joe Biden has won absentee ballots counted in Pennsylvania by an overwhelming margin so far, according to data from the Secretary of State early Wednesday. If he carried the remaining absentee ballots by a similar margin, he would win the state.
Votes in Pennsylvania

President Trump leads by nearly 700,000 votes in Pennsylvania as of 5 a.m. on Wednesday, and Mr. Biden’s chances depend on whether he can win a large percentage of the more than 1.4 million absentee ballots that remain to be counted.

So far, Mr. Biden has won absentee voters in Pennsylvania, 78 percent to 21 percent, according to the Secretary of State’s office. The results comport with the findings of pre-election surveys and an analysis of absentee ballot requests, which all indicated that Mr. Biden held an overwhelming lead among absentee voters.
If Mr. Biden won the more than 1.4 million absentee votes by such a large margin, he would net around 800,000 votes — enough to overcome his deficit statewide.

Of course, there’s no guarantee that Mr. Biden will win the remaining absentee vote by quite so much.

Nov. 2

david kaplan

ny times logoNew York Times, Opinion: Has the Court Learned Nothing From Bush v. Gore? Apparently not, David A. Kaplan (author of The Accidental President: How 413 Lawyers, 9 Supreme Court Justices and 5,963,110 Floridians (Give or Take a Few) Landed George W. Bush in the White House, and The Most Dangerous Branch, shown above), Nov. 2, 2020.

You remember the legal horror show called Bush v. Gore? The Supreme Court couldn’t possibly replicate that. But don’t underestimate the justices’ capacity for self-inflicted wounds. The sequel’s being scripted and it may be worse.

Twenty years ago, the court stepped in to halt a recount in the disputed 2000 presidential election. Both the Constitution and federal law specifically entrusted Congress to resolve such a deadlock. But the justices recklessly inserted themselves anyway. The fiercely divided ruling cost the court its legitimacy and hurt the country.

Now there are widespread worries that the court will jump in again. “I think this will end up in the Supreme Court,” President Trump said in late September. Having just placed Amy Coney Barrett, the sixth Republican-appointed justice on the court, he is evidently thrilled about that prospect.

Only two justices remain on the court who were there in 2000 — Clarence Thomas and Stephen Breyer. Have they and their fellow justices learned anything from the court’s misadventure?

One of the biggest myths about the court — born of its continuing gratuitous interventions in contentious issues that should have been left to Congress and states — is that it had no choice but to meddle. That self-proclaimed textualist, Justice Antonin Scalia, told an interviewer years after Bush v. Gore, “We were the laughingstock of the world — the world’s greatest democracy that couldn’t conduct an election.” He omitted any mention of where in the Constitution he had unearthed a “Laughingstock” clause that justified the court’s intrusion.

On occasion, he had a smugger response when asked about the 5-to-4 ruling. “Get over it!” he’d say. Justice David Souter, who dissented, never did, so appalled was he about Bush v. Gore.

The court’s docket is discretionary. The only plausible explanation for the court’s taking up Bush v. Gore is institutional arrogance — the belief that the justices alone could save the country from a crisis that wasn’t a crisis. But the Constitution and a federal statute provide what to do in such instances, even if a president isn’t chosen by Inauguration Day. That hubris not only made the justices look like partisans in robes but also raised the stakes for future court nominations.

When the court shuts down a recount, invents an individual’s right to bear arms under the Second Amendment, unleashes big money into campaigns, guts voting rights and sets abortion policy, presidents and senators react accordingly. The storm over Justice Barrett’s confirmation is the latest chapter in a story that begins with the justices themselves.

Bush v. Gore involved just one state, Florida. This year, that case might look like a picnic. With so many battleground states and with hundreds of lawsuits, no doubt this is the most litigated election ever.

Still, elections should be garden-variety state matters, even races for the presidency. State courts should be left to make decisions based on their own state laws and state constitutions. Yet there’s plenty of reason to think some of the justices would be happy to substitute their own judgment.

In 2000, the court’s logic was that the 14th Amendment’s guarantee of “equal protection” rendered Florida’s system unconstitutional because different counties used different standards to evaluate contested ballots. Never mind that the counties all set out to determine the intent of any given voter. Never mind that George W. Bush’s lawyers had raised the equal protection argument only in passing.

Why would they do otherwise? There were 3,141 counties in the United States. Most contained multiple municipalities, most of which had separate voting precincts. There were different machines, ballot designs and instructions. Lines could be short in some neighborhoods, around the block in others. Many of the disparities disproportionately affected Black people, the chief intended beneficiaries of the 14th Amendment. Yet the court had never gone near declaring that such variances amounted to constitutional transgressions.

In Bush v. Gore, the justices did. Had they finally seen the light when it came to voting inequities? Nope. They were apparently ambivalent enough about their own reasoning that they said the case should not be considered a precedent. Bush v. Gore is the Lord Voldemort of Supreme Court jurisprudence — the case that must not be named.

ny times logoNew York Times, Federal Judge Rejects G.O.P. Attempt to Toss 127,000 Ballots in Texas, David Montgomery and Nick Corasaniti, Nov. 2, 2020. Republicans had tried to invalidate votes that were cast at drive-through locations in Harris County, a Democratic stronghold that includes Houston.

A federal judge in Houston on Monday rejected Republican efforts to invalidate more than 127,000 votes that were cast at drive-through locations in Harris County, a Democratic stronghold that includes Houston, the nation’s fourth-largest city.

texas mapThe lawsuit was one of the most aggressive moves by Republicans in an election marked by more than 400 voting-related lawsuits. And it came as Texas, long considered reliably Republican in presidential elections, has emerged as a swing state this year, with polls showing an unusually close race there.

Harris County, the most populous county in Texas, is home to one of the state’s largest concentrations of Democratic voters. It had set up 10 drive-through voting sites to offer a safe, in-person voting option amid the pandemic, and polls were open for 18 days.

But in a lawsuit, Republicans argued that Chris Hollins, the Harris County Clerk, did not have the authority to allow drive-through voting in the county.

Judge Andrew S. Hanen, a federal judge who was appointed by former president George W. Bush, held an emergency hearing for the lawsuit on Monday and ruled against tossing the ballots. On Sunday, the all-Republican Texas Supreme Court had rejected a similar effort to get those ballots tossed out.

“We win,” texted Susan Hays, the elections counsel for Mr. Hollins.

In a motion on Friday asking to intervene in the case, Democrats said the suit threatened to “throw Texas’ election into chaos by invalidating the votes of more than 127,000 eligible Texas voters who cast their ballots” at the drive-through sites. The motion was filed by the Democratic Senatorial Campaign Committee, the Democratic Congressional Campaign Committee and the campaign of M.J. Hegar, a Democratic candidate for the Senate in Texas.

washington post logoWashington Post, Analysis: Republicans now think Texas courts don’t decide their own election law, Steve Vladeck (professor at the University of Texas School of Law, co-editor in chief of Just Security, co-host of the National Security Law Podcast and a CNN legal analyst), Nov. 2, 2020. The Harris County drive-through voting case has national ramifications.

On Monday, a day before Election Day, federal district court Judge Andrew Hanen will hold a hearing on whether Harris County, Tex., clerk Chris Hollins violated the Constitution by making provisions for some Houstonians to vote in drive-through polling stations.

Although the same lawsuit has been rejected twice by the all-Republican Texas Supreme Court, the plaintiffs — who include a prominent Republican activist and a Republican state legislator — are asking Hanen to invalidate more than 100,000 ballots cast, in some instances, in temporary structures set up by Harris County. His decision may not tip the outcome of the presidential election, but it could influence a number of down-ballot races, and maybe even control of Texas’s house of representatives.

texas mapLike so many 11th-hour voting-related suits filed by Republicans in recent weeks, this suit has almost nothing to do with voter fraud. Rather, it’s the latest in a consistent and cynical line of suits — in Wisconsin, Pennsylvania, Minnesota, among others — that appear motivated by partisan gain, assuming that the exclusion of any set of ballots from Harris County, the third-largest in the country and one of Texas’s key Democratic strongholds, is good for Republicans.

The Harris County case, in particular, gives away the game: It lays bare how little this case and others have to do with the public interest. And it’s easy to see how the plaintiffs’ argument, if taken seriously by the court and followed to its logical conclusion, would actually invalidate any number of state election laws on the ground that no two jurisdictions have exactly the same voting rules.

It would certainly be less chaotic if all Americans voted pursuant to a uniform set of federally imposed procedures — if forms, machines, drop-box specifications, mail-in ballot receipt deadlines and early voting schedules were exactly the same, from county to county and state to state — but inefficiency is not, of itself, unconstitutional.

The suit is already beset with procedural problems: Although the drive-through voting policy was announced months ago, piloted this summer and had the tacit approval of Texas’s director of elections, the plaintiffs waited until last week to first bring this federal suit. It’s also unclear how these plaintiffs (or anyone else, for that matter) are injured by having eligible voters cast timely ballots. And under something called the Rooker-Feldman doctrine, lawsuits like this — in which someone who lost in state court brings the same suit against the same party in federal court — are supposed to be barred. In other words, without ever reaching the merits of the plaintiffs’ claims, this suit could — and should — be quickly dismissed.

The merits of the suit are a sloppy rehash of two different arguments that have shown up in a number of these recent lawsuits: The first claim is that, by allowing drive-through voting, Hollins usurped the power of Texas’s legislature under the federal Constitution to set the rules for elections. Never mind that, by statute, Texas already gives election administrators some flexibility over the exact physical spaces used for polling places; that drive-through voting used security procedures and equipment comparable to that at permanent indoor stations; and that Texas’s Supreme Court, the definitive expositor of Texas election law, turned away the plaintiffs’ objections.

On Nov. 2, one day before Election Day, federal court Judge Andrew Hanen holds a hearing on whether Houston drive-through polling stations will be counted. (The Washington Post)

Trump says he can adjourn Congress. He's misreading the Constitution.

In the alternative, the plaintiffs argue, allowing citizens of Harris County to vote via drive-through voting in this respect violates the Equal Protection Clause of the 14th Amendment, because Harris County has adopted a “manner of voting” not adopted by other counties. Never mind that different counties in Texas have different rules about the number and locations of polling places, their hours of operation during early voting and so on. Indeed, for one night, Harris County also offered 24-hour early-voting centers. Was that likewise unconstitutional entirely because other counties didn’t?

In essence, the plaintiffs are taking the equal protection argument controversially adopted by the Supreme Court in Bush v. Gore (which, despite the justices’ specific admonition to the contrary, these plaintiffs cite as authority), and stretching it well beyond its breaking point. In Bush v. Gore, the equal protection violation the justices identified was that different counties were using different standards to evaluate the intent of voters for ballots that had “hanging” or “dimpled” chads. If the same two voters indented their ballots in the exact same way, it was possible that the vote would count in one jurisdiction but not in another.

Today, the argument is not about the same two voters having the same ballot counted differently; it’s about access to voting. And if what Harris County did violates equal protection, then unless every single voter in a state has the exact same access to a polling place in every single respect, the state law is unconstitutional. Were that so, then a host of state election laws would have to be struck down. States would have to ensure a comparable number of polling places per capita; that polling places were roughly the same location from voters in every jurisdiction; that the voting hours and staffing for polling places were uniform; and any number of other technical requirements that rather miss the point — which, in case we need to be reminded, is to enable eligible voters to vote.

The absurd legal theory conservative judges are using to restrict voting

Galling, also, is that like other recent election lawsuits, the plaintiffs (and some courts) completely fail to acknowledge the other side of the equation — the 100,000-plus Harris County voters who stand to have their votes invalidated — having voted under rules announced in advance, approved by local officials, and left intact during weeks of early voting, potentially too late for them to do anything about it. Just like Minnesota voters whose otherwise valid mail-in ballots may be tossed because a federal appeals court suggested that the state may have erroneously extended the receipt deadline for such ballots, the mind-set appears to be that no cost is too high, and no amount of disenfranchised voters too large, in cases where, at most, local election officials erred on the side of counting more legal votes from eligible voters. What some courts forget is that these citizens who voted in good faith, before these suits were filed, also have 14th Amendment rights.

That’s perhaps the most stunning feature of this latest suit. When courts consider whether to enjoin government action, they’re supposed to consider more than just the merits of the case. Among the traditional factors in such cases are whether the plaintiffs have suffered an irreparable injury; whether that injury has no other remedy; whether the balance of hardships weighs more strongly in favor of the plaintiffs or the defendant; and whether the public interest would be served by injunctive relief.

ny times logoNew York Times, ‘Presidents Don’t Determine Who Gets to Vote,’ Biden Says, Katie Glueck, Nov. 2, 2020. Joseph R. Biden Jr. kicked off the final day before the election with a foray into a state that for four years has been a symbol of Democratic disappointment: Ohio.

“Ohio: One more day!” Mr. Biden said at a drive-in rally at an airport hangar in Cleveland. “Tomorrow we have an opportunity to put an end to a presidency that’s divided this nation. Tomorrow we can put an end to a presidency that has failed to protect this nation. And tomorrow we can put an end to a presidency that’s fanned the flames of hate all across this country.”

“My message is simple,” Mr. Biden said. “The power to change the country is in your hands.”

His remarks there come amid record-setting early in-person voting in Cuyahoga County, a major Democratic county in a Trump-friendly state that his team has watched closely. Ohio, which helped deliver the presidency to Donald J. Trump in 2016, is still seen by many Democrats as a reach for Mr. Biden, who is otherwise expected to spend the day campaigning in nearby western Pennsylvania.

But his campaign is seeking to create as many pathways to 270 electoral votes as possible, and a number of officials on Mr. Biden’s team have personal connections to the state, including Steve Ricchetti, a top Biden adviser and Ohio native.

“Ohio is like Iowa, is like Texas,” said Jennifer O’Malley Dillon, Mr. Biden’s campaign manager, in a briefing later Monday. “These expansion states on both sides that, you know, frankly, are in play. And what we’ve seen coming into this final stretch is that more states are in play than less.”

“They’re in play even further,” she added, “if we keep pushing on turnout.”

At the rally, Mr. Biden also referenced the electoral success of Senator Sherrod Brown, Democrat of Ohio, in a state that has become increasingly challenging for Democrats. “So when Sherrod tells me to come to Ohio the day before, I come to Ohio,” Mr. Biden said.

Ohio twice voted for the Obama-Biden ticket, Mr. Biden reminded voters on Monday.

“In 2008, 2012, you placed your trust in me and Barack,” Mr. Biden said. “In 2020 I’m asking you to trust me again. I’m proud of the coalition this campaign has built. We welcome Democrats, Republicans and independents.”

In his remarks, Mr. Biden took aim at Mr. Trump’s remarks on Sunday in which he appeared to entertain the idea of firing Dr. Anthony Fauci, the nation’s top infectious diseases expert.

“Elect me and I’m going to hire Dr. Fauci,” Mr. Biden said. “We’re going to fire Donald Trump.”

In his address in Ohio, Mr. Biden hit many of the same things he has been stressing for months, even years in some cases: that Mr. Trump’s divisive presidency poses a unique threat to the nation’s character, that he does not respect even members of the military, that he does not grasp the threat of climate change and that he has mishandled the pandemic at every turn.

“The first step to beating the virus,” Mr. Biden said, “is beating Donald Trump.”

Mr. Biden then headed to Pennsylvania, where he, Senator Kamala Harris and their spouses, Jill Biden and Doug Emhoff, are fanning out across the state, seeking to promote his message to a broad coalition of voters and, in some cases, also targeting their message toward key House districts.



Oct. 30

amy coney barrett djt white house swearing in

Buzzflash, Investigation: Amy Coney Barrett Got Thousands of Tainted GOP Mail-In Ballots Counted in Florida in 2000, Invaluably Helping Bush to Steal Election, Staff report, Oct. 30, 2020. Amy Coney Barrett set the tone for her role as a party hack on the Supreme Court as she willingly posed maskless with Donald j. Trump for campaign photo-ops on the night of her nomination on Monday (shown above in a White House photo).

Amy Coney Barrett set the tone for her role as a party hack on the Supreme Court as she willingly posed maskless with Donald j. Trump for campaign photo-ops on the night of her nomination on Monday. (The White House)

Amy Coney Barrett, that icon of judicial integrity — as Trump and the DC Republicans would have you believe — may soon commit gross hypocrisy if she rules on Team Trump’s efforts to have Democratic votes invalidated in the 2020 election. In fact, the SCOTUS dissenters in allowing Pennsylvania to allow three extra days for the state to count ballots postmarked by November 3 but delivered up to three days later, indicate they may consider retroactively tossing out the votes.

Barrett didn’t vote on the Florida and North Carolina cases because, according to the Court, she did not have the time to read up on them, but she will likely rule on Trump retroactive voter suppression and theft of the election legal efforts after the election unless Biden wins with an irreversible lead.

A clear argument can be made that she allowed herself to be used as a pawn for Trump’s reelection with two White House appearances and a photo-op on the Truman balcony. A stronger case can be made because she helped implement a legal strategy in 2000, working through a law firm for the Bush campaign, that allowed the counting of thousands of Republican absentee ballot requests with missing information to be taken out of a Republican-run county election office and filled out by local Republican operatives at another location.

As Mother Jones on October 11:

Republicans sought to count mail ballots that were disputed by Democrats because of evidence that Republican operatives had altered incomplete absentee ballot request forms. That position stands in sharp contrast to Trump’s current assault on mail voting. But there’s a certain consistency here: Republicans will take whatever stance on mail ballots maximizes their electoral chances. And Barrett’s work in 2000 suggests she might be willing to play along.

Election Law Blog added:

After county officials allowed the GOP to take the forms back and fill in the missing information, a Democratic voter sued, saying ballots cast by those voters should be tossed out. The county canvassing board, the Florida Republican Party and the Bush campaign argued that the votes should still count.

Barrett’s work on the case serves as a reminder of how aggressively the Republican Party has sought to harness mail voting for years, in contrast to President Trump’s relentless attacks on the practice….

Request forms sent by the party to Republican voters mistakenly omitted their voter registration numbers, leading those requests to be set aside by the Martin County elections office. The county elections supervisor allowed a local Republican Party official to take the incomplete request forms [out of the office], add the missing numbers and return them the following day, according to court filings. GOP voters who had used the request forms to seek absentee ballots were then able to receive them….

Democrats sued that neither the Marin County or nearby Seminole County, which had up to 25,000 absentee ballot irregularities “corrected,” should not have these “tainted” votes counted, which Barrett and her legal colleague argued for the counting of the ballots. A state court ruled with Barrett’s argument and the Bush Campaign, and Bush “won” Florida by 537 votes until the Supreme Court anointed him president by a 5-4 vote, while it forbade a recount that would have made Al Gore president.

The state and county Democrats said that the process had been so tainted and in violation of Florida Election law (Democrats absentee ballot requests were not corrected and the Democrats were not notified that their absentee ballot requests were not processed), including allowing Republican operatives to break the chain of vote custody by taking the ballot requests out of the election office. But the Gore campaign curiously did not join the suit, and so the state Democrats lost the case.

An October 10 Washington Post article confirms these details of Barrett’s role in an article entitled, “How Amy Coney Barrett Played a Role in Bush v. Gore — and Helped the Republican Party Defend Mail Ballots.”

Meanwhile, just recently in Iowa, according to CBS News:

Iowa's highest court upheld a state directive Wednesday that was used to invalidate tens of thousands of absentee ballot requests mailed to voters pre-filled with their personal information.

The Iowa Supreme Court issued its ruling in favor of President Donald Trump's campaign and Republican groups as Trump held an evening rally in Des Moines.

The court rejected a Democratic challenge that argued the directive issued by Republican Secretary of State Paul Pate was unconstitutional.

In a similar vein, Brett Kavanaugh, who was coming off his recent role as top aide to the Ken Starr inquisition of Bill Clinton, was also aiding the Bush Campaign in 2000 to argue for what Trump would call fraudulent mail-in votes to be counted. According to The Intellectualist:

However, in Bush v. Gore — the Supreme Court decision that handed the presidency to a man who lost the popular vote — a younger Kavanaugh argued it would be unfair if ballots received after election day were not counted.

Kavanaugh was on the legal team that “argued during that contested election that ballots arriving late and without postmarks, which were thought to benefit Bush, must be counted in Florida,” Salon noted on Tuesday.

In 2001, The New York Times laid out how Bush’s team went about ensuring his presidential win….

Now, Kavanaugh — as well as a slew of Republicans, including President Donald Trump — argue that ballots received after Election Day should not be counted, claiming it opens the door to fraud and will cast doubt on the legitimacy of the election results.

As Salon noted,

Whatever the reasons behind Kavanaugh’s performance on Monday, he has given the nation another legitimate reason to fear that this election may end with a Bush v. Gore–like disaster for American democracy, but even worse than the original.

On Monday night, Kavanaugh debased the dignity of the Supreme Court in parroting Trump in claiming a presidential winner should be announced on November 3, because it would be unfair to count votes, even if they arrived before that day, because it would be unfair to the candidate leading on November 3. These were the ludicrous claims of a party hack, not a Supreme Court justice.

Justice Elena Kagan took snarling Kavanaugh to the woodshed:

Justice Kagan: Justice Kavanaugh alleges that “suspicions of impropriety” will result if “absentee ballots flow in after election day and potentially flip the results of an election.” Ante, at 7. But there are no results to “flip” until all valid votes are counted. And nothing could be more “suspicio[us]” or“improp[er]” than refusing to tally votes once the clock strikes 12 on election night. To suggest otherwise, especially in these fractious times, is to disserve the electoral process.

Finally, remember that John Roberts is a third lawyer on the Supreme Court who worked on legal strategy for the theft of the 2000 election by George W. Bush.

Oct. 29

amy coney barrett cnbc

ny times logoNew York Times, How to Fix the Supreme Court (Opinion Forum): Pack the Courts, Larry Kramer (right, former dean of Stanford Law School), Oct. 29, 2020 (print ed.). Democracy depends on norms as well as law, and respecting established norms is essential in a diverse society. The norms that get layered on top of laws are what enable groups with fundamentally different ideas and larry kramer stanfordobjectives to live and work together. And if the past decade has taught us anything, it is that a politics of abandoning norms to win today’s battle is mutilating our democracy.

So, yes, Republicans had the legal power to refuse a hearing to Judge Merrick Garland even though he was nominated nearly eight months before the 2016 election, just as they had the legal power to ram Amy Coney Barrett’s nomination through the Senate Judiciary Committee two weeks before the Nov. 3 election.

And yes, they had the legal power to do so even while offering disgracefully hypocritical justifications: denying Judge Garland a hearing because, they said, legitimacy required waiting for an election that was close in time, while rushing through a last-minute appointment for Judge Barrett lest they lose an election that’s much, much closer.

But both acts betrayed a ruthless willingness to politicize judicial selection in extreme ways that upended long-established norms.

Liberals say that if Joe Biden wins the election, Democrats should answer by adding justices to the Supreme Court. Republicans respond with faux outrage that this would politicize the judiciary.

But they have already politicized the judiciary. The question is whether only one side should play that game. Besides, not only is enlarging the Supreme Court legal, its size has changed seven times over its history.

Adding judges would be a political response to a political act. But the extreme

s to which Republicans have been willing to go leave the Democrats no other choice. Not for revenge or because turnabout is fair play, but as the only way back to a less politicized process.

This is a lesson we learned decades ago from economists and game theorists: Once cooperation breaks down, the only play to restore it is tit-for-tat. It’s the only way both sides can learn that neither side wins unless they cooperate.

ny times logoNew York Times, Analysis: In Voting Cases, Chief Justice Roberts Is Alone but in Control, Adam Liptak, right, Oct. 29, 2020. In a little over a week, the Supreme adam liptakCourt issued five sets of orders in election cases. In three of them, Democrats prevailed.

Chief Justice John G. Roberts Jr. wrote an opinion in only one of the cases, and it was only a paragraph long. It sketched out a distinction that no other justice endorsed. But that distinction can explain every one of the court’s orders.

The distinction pressed by the chief justice was this: Federal courts should not change voting procedures enacted by state legislatures, and they also should not step in when state courts or agencies change those procedures.

The something-for-both-sides approach is broadly similar to Chief Justice Roberts’s recent record, in which he voted with the court’s liberals in cases on gay rights, immigration and abortion; joined the court’s conservatives in major cases on religion; and wrote the majority opinions in cases on subpoenas seeking President Trump’s financial records that rejected his broadest claims but did not require immediate disclosures.
Chief Justice Roberts’s deft judicial work last term meant that he was in the majority in divided decisions at a higher rate than any chief justice since at least 1953. Scholars debated whether that was evidence of principle or pragmatism, noting that the chief justice has tried hard to shield the court from charges that it is a political body.

In the election cases, too, the chief justice’s rationale staked out a middle ground, one that was consistent with conservative ideas about federalism even as the court’s other members seemed to take all-or-nothing approaches. The court’s more liberal members said the right to vote was important enough to justify letting federal judges alter state election rules. And its more conservative ones said the Constitution prohibits all changes to voting rules enacted by state legislatures, even ones supported by state courts or state officials.

ny times logoNew York Times, Opinion: The Supreme Court Should Stay Out of State Election Law, Akhil Reed Amar, Vikram David Amar and Neal Kumar Katyal, right (The neal katyal oauthors are law professors), Oct. 29, 2020 (print ed.). Allowing federal courts to muck around with state election laws is dangerous and destabilizing.

Just as they did in the infamous Bush v. Gore litigation in 2000, Republican lawyers are trying to get the Supreme Court to undermine state court rulings protecting voting rights under state law. Their theory? That state courts, by relying in part on state constitutions, are wrongly exercising power that belongs to state legislatures.

This idea that state constitutions are irrelevant, and that all that matters is what state legislatures say, is preposterous. Yet recent events suggest this wrongheaded theory may have some traction among the justices.

And this theory has huge consequences. It would mean that many of the decisions you are reading about, where state judges are applying state constitutions to protect the right to vote (say, by finding that ballots postmarked by Election Day will be counted, or that onerous witness requirements will be relaxed because of Covid-19) would now be fair game for the Supreme Court to reverse — even though these decisions are interpretations of state law by state courts.

So far, partisan attempts to involve the federal judiciary have failed, and rightly so. Early last week, the Supreme Court rejected an effort by Pennsylvania Republicans to overturn a Pennsylvania Supreme Court decision that votes postmarked by Election Day but received a few days later must be counted. The court deadlocked 4-4, letting the state court decision stand, with Chief Justice John Roberts joining the court’s three Democratic appointees in voting to leave undisturbed what the state court had done.

Now the Republican challengers are trying to bring the case back before the court, hoping to win support from its newest member, Amy Coney Barrett. We may see a similar push to overturn a second Pennsylvania Supreme Court ruling issued last Friday, also protecting state voters’ rights — this time to have their votes counted notwithstanding technical signature glitches in mail-in or absentee ballots.

Federal courts have no business interfering in state-law matters. As the three of us wrote back in 2000, the effort of several justices to hijack state law in Bush v. Gore was a disgrace. These justices asserted that the “Florida Supreme Court’s interpretation of the Florida election laws impermissibly distorted them beyond what a fair reading required.” Of course, “fair reading” meant how these justices read state law, not how Florida’s expert judges saw the matter.

Palmer Report, Opinion: Vermont Secretary of State goes after Brett Kavanaugh, Bill Palmer, Oct. 29, 2020. When the Supreme Court ruled against extending the period for counting mail-in ballots in Wisconsin, Brett Kavanaugh tacked on an opinion that read like a series of Trump tweets strung together. He falsely claimed that states want to know the results on election night, and he also made a bizarre number of factually false statements which read like he’d been drinking too much beer.

bill palmer report logo headerThe Vermont Secretary of State isn’t too happy with one of Brett Kavanaugh’s errors in particular:

It’s almost like Kavanaugh isn’t even trying at this point. If he was hoping to get his stance adopted by the other conservative justices, he should have at least written something coherent enough to give them cover. Instead Kavanaugh appears to be solely trying to make Donald Trump happy – which makes you wonder if he’s trying to get Trump to pardon him for perjury on his way out the door.

ny times logoNew York Times, Kavanaugh Fixes Error in Election Opinion After Vermont Complaint, Maria Cramer, Oct. 29, 2020. Justice Brett M. Kavanaugh on Wednesday corrected an error in an opinion issued as part of a Supreme Court ruling that barred Wisconsin from counting mail-in ballots that arrive after Election Day.

Though not unheard-of, such revisions are rare, experts said, adding that Justice Kavanaugh’s change highlighted the court’s fast pace in handling recent challenges to voting rules.

In the opinion, which was issued on Monday and alarmed Democrats worried about mail ballots being counted, Justice Kavanaugh wrote that while some states had changed their rules around voting in response to the pandemic, others had not.

“States such as Vermont, by contrast, have decided not to make changes to their ordinary election rules, including to the election-day deadline for receipt of absentee ballots,” he wrote in his original concurring opinion, which was attached to the 5-to-3 ruling against the deadline extension in Wisconsin.

Oct. 28  djt amy coney barrett resized white house 10 26 20

President Trump and Justice Amy Coney Barrett at the White House on Monday. (Jabin Botsford/The Washington Post)

Daily Howler, Opinion: Who is Associate Justice Barrett? Bob Somerby, Oct. 28, 2020. Who is Amy Coney Barrett? And why didn't anyone ask? Barrett, of course, is now an associate justice on the United States Supreme Court. She'll be on the Court for the next thirty years—but who was Amy Coney Barrett in the 48 years before that?

ap logoThe question arises because of an AP news report which only broke last week. As it appeared in the Washington Post, the AP report started like this, headline included:

SMITH AND BIESECKER (10/21/20): Barrett was trustee at private school with anti-gay policies:

Supreme Court nominee Amy Coney Barrett served for nearly three years on the board of private Christian schools that effectively barred admission to children of same-sex parents and made it plain that openly gay and lesbian teachers weren’t welcome in the classroom.

The policies that discriminated against LGBTQ people and their children were in place for years at Trinity Schools Inc., both before Barrett joined the board in 2015 and during the time she served.

The three schools, in Indiana, Minnesota and Virginia, are affiliated with People of Praise, an insular community rooted in its own interpretation of the Bible, of which Barrett and her husband have been longtime members. At least three of the couple’s seven children have attended the Trinity School at Greenlawn, in South Bend, Indiana.

The AP spoke with more than two dozen people who attended or worked at Trinity Schools, or former members of People of Praise. They said the community’s teachings have been consistent for decades: Homosexuality is an abomination against God, sex should occur only within marriage and marriage should only be between a man and a woman.

The AP report continued from there. We remain puzzled by the (extremely) late emergence of this information.

Barrett testified before the Senate Judiciary Committee on October 13 and 14. She was never asked about this matter, possibly because no one knew about it.

Arguably, it was an abomination against democratic procedure when Barrett received a lifetime appointment to the nation's highest court without this matter being reported or discussed. One wonders where Democrats were in recent years, but also the national press.

Has opposition research suddenly ceased to exist? Barrett was known to (possibly) be "next in line" for at least the past three years. It's hard to know how a matter like this could come to light only after it was too late to make any conceivable difference in any conceivable way.

The AP report on this matter came and went last week. Perhaps understandably at this juncture, it provoked very little discussion.

That said, the chronology of this revelation remains a mystery to us. Who is Associate Justice Barrett? And why was no one able to ask her about this part of her personal history?

As we mentioned in real time, we spent two full days watching Barrett testify. As we mentioned, we were struck by how amazingly little we knew about her by the time the two days were done.

Democrats insisted on asking the types of questions they knew she wouldn't answer. A week later, we learned that no one had asked her about this part of her past.

Today, warnings are emerging across the press about the ways the Supreme Court could intervene in the aftermath of an apparent win by Candidate Biden. Was Barrett a "Manchurian nominee," one who might tip the balance toward a judicial assault on the electoral process?

We don't know how the Court might handle legal challenges to an apparent Biden win. But who is Amy Coney Barrett, and why didn't anyone ask?

We had two major reactions to Barrett's two days of testimony:

First, we noted the fact that Barrett was amazingly telegenic. Also, Democratic questioning struck us as amazingly pointless and daft.

One week later, up jumped the AP report. In our view, the fire trucks had arrived at the scene puzzlingly late.

What the heck ever happened to oppo? We can't answer that question.

miles taylor screenshot

ny times logoNew York Times, Miles Taylor, a Former Homeland Security Official, Reveals He Was ‘Anonymous,’ Michael D. Shear, Oct. 28, 2020. Mr. Taylor’s criticisms of President Trump in a New York Times Op-Ed article and subsequent book roiled Washington. He resigned from the administration last year.

Miles Taylor, shown above in a screenshot, the former chief of staff at the Department of Homeland Security, was the anonymous author of The New York Times Op-Ed article in 2018 whose description of President Trump as “impetuous, adversarial, petty and ineffective” roiled Washington and set off a hunt for his identity, Mr. Taylor confirmed Wednesday.

Mr. Taylor was also the anonymous author of A Warning, a book he wrote the following year that described the president as an “undisciplined” and “amoral” leader whose abuse of power threatened the foundations of American democracy. He acknowledged that he was the author of both the book and the opinion article in an interview and in a three-page statement he posted online.

us dhs big eagle logo4Mr. Taylor resigned from the Department of Homeland Security in June 2019, and went public with his criticism of Mr. Trump this past summer. He released a video just before the start of the Republican National Convention declaring that the president was unfit for office and endorsed Joseph R. Biden Jr., the Democratic presidential nominee.

But Mr. Taylor, who had repeatedly denied being Anonymous, did not reveal himself to be the author of the opinion article and book at the time. Confronted with Mr. Taylor’s public criticism in August, the president wrote on Twitter that he was a “DISGRUNTLED EMPLOYEE named Miles Taylor, who I do not know (never heard of him).”

The Op-Ed pages of The Times are managed separately from the news department, which was never told of Anonymous’s identity.

Mr. Taylor served for two years as a top aide to Kirstjen Nielsen, Mr. Trump’s third homeland security secretary, and wrote in The Times that he was part of a cadre of officials around Mr. Trump who were quietly working to “frustrate parts of his agenda and his worst inclinations.”

As a senior administration official, Mr. Taylor often interacted with the president at the White House, particularly on issues related to immigration, cybersecurity and terrorism. He left government after Ms. Nielsen was fired and later became the head of national security relations for Google. He has been on personal leave from the company for the past several months after endorsing Mr. Biden and has been organizing other Republicans to campaign against Mr. Trump’s re-election.

The disclosure of Mr. Taylor’s identity is likely to renew the debate over his motives and raise questions about whether his position in the Trump administration was senior enough to justify the decisions by The Times’s Opinion desk and the book’s publisher to keep his identity secret.

Mr. Taylor’s essay has had less impact over time as an array of onetime Trump administration officials have come forward with names attached to publicly criticize the president’s leadership and character, among them the former defense secretary, Jim Mattis, and Mr. Trump’s third national security adviser, John R. Bolton.

In the book, Mr. Taylor said he decided to remain anonymous because he believed revealing his identity would have allowed Mr. Trump and his allies to distract attention from the substance of the critique he leveled against the president.


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Law & Crime, Lev Parnas’s Business Associate David Correia, Fraud Guarantee Co-Founder with Giuliani Ties, Will Plead Guilty, Adam Klasfeld, Oct 28, 2020. David Correia, above left, a business associate of impeachment figure Lev Parnas who did business with Rudy Giuliani in the company Fraud Guarantee, plans to plead guilty on Thursday morning on unspecified charges.

Federal prosecutors declined to comment on what counts of his indictment Correia plans to plead guilty to or whether he intends to cooperate in the prosecution of Parnas, his co-defendants, or potentially others who have not been named. Correia, however, has been charged with the two key conspiracies that prosecutors hope to prove at trial next year: illegally funneling foreign money into U.S. elections and duping people to invest in Fraud Guarantee, a company that reportedly paid $500,000 to Giuliani.

At least seven alleged victims invested in Fraud Guarantee, putting in hundreds of thousands of dollars for a total of more than $2 million. Prosecutors say that’s because Parnas and Correia misled them about how much they had contributed to the company and how much money the company had raised overall.

“We couldn’t say it better ourselves — the behavior alleged today is indeed fraudulent — guaranteed,” FBI Assistant Director William Sweeney said when prosecutors unveiled those charges in September.

Parnas’s attorney Joseph Bondy declined to comment. Correia’s attorney William Harrington, from the firm Goodwin Procter, did not immediately respond to phone and emails requests for comment. Neither did Giuliani through his spokeswoman Christianné Allen.

A South Florida man who had partnered with Parnas on a marijuana business, Correia has been an ancillary figure in a case tied to President Trump’s impeachment. He kept a low profile as his co-defendant Parnas shared thousands of files that the House Intelligence Committee used to build a case that Trump abused his office to manufacture dirt on his political rival, former vice president Joseph Biden. Parnas’s name appeared in the House Impeachment Report more than 100 times. His associate Igor Fruman’s popped up more than a dozen times. Correia’s name did not come up once on the document.

If Correia becomes the government’s first cooperating witness, his public profile could rise in this closely watched prosecution. He is charged with six of seven counts of the indictment, including falsifying records, soliciting campaign contributions from a foreign national, conspiring to defraud the United States, and attempting to commit wire fraud. Prosecutors claim Correia was involved in a $325,000 contribution that Parnas and Fruman made to the pro-Trump super PAC America First Action via their company Global Energy Producers. The indictment also places Correia inside an alleged conspiracy to funnel money from the still-unidentified “Foreign National-1,” with whom prosecutors claim Parnas, Fruman, Correia and a fourth man Andrey Kukushkin planned to open a marijuana business in the fall of 2018.

Related story below: Igor Fruman, top left, and Lev Parnas, two Soviet-born associates of Rudy Giuliani, President Trump’s personal attorney at bottom of a Wall Street Journal graphic above by Laura Kammermann, appear to be deeply involved in the Ukraine scandal.

Trump Counsel Rudolph Giuliani, left, with businessman Lev Parnas last month at the Trump International Hotel shortly before the arrest of Parnas and his colleague Igor Fruman while boarding a flight to Vienna from Dulles International Airport.

Bloomberg, Giuliani Associates’ Co-Defendant to Enter New Plea Thursday, Christian Berthelsen, Oct. 28, 2020. A co-defendant of two associates of Rudy Giuliani who has denied laundering foreign money into U.S. political campaigns is scheduled to change his plea in the case, according to a court filing.

The co-defendant, David Correia, was charged along with Giuliani associates Lev Parnas and Igor Fruman in 2019 with a wide-ranging scheme to solicit campaign donations from foreign investors and use them to advance business ventures in the U.S.

While most of the focus has been on the role Parnas and Fruman played in helping Giuliani and President Donald Trump in Ukraine, which figured in Trump’s impeachment, other charges involving Correia included laundering donations from a foreign backer to launch a marijuana business in Nevada.

If Correia pleads guilty to any of the charges, it would constitute the first admission of guilt by any of the defendants in the case.

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More On U.S. Law, Crime, Courts

washington post logoWashington Post, Former U.S. attorneys — all Republicans — back Biden, saying Trump threatens ‘the rule of law,’ Tom Hamburger and Devlin Barrett, Oct. 28, 2020 (print ed.). Twenty former U.S. attorneys — all of them Republicans — on Tuesday publicly called President Trump “a threat to the rule of law in our country,” and urged that he be replaced in November with his Democratic opponent, former vice president Joe Biden.

“The President has clearly conveyed that he expects his Justice Department appointees and prosecutors to serve his personal and political interests,” said the former prosecutors in an open letter. They accused Trump of taking “action against those who have stood up for the interests of justice.”

The letter, signed by prosecutors appointed by every GOP president from Eisenhower to Trump, is the latest instance of Republicans backing Biden. In August, dozens of GOP national security experts signed a full-page newspaper ad endorsing Biden over Trump.

“He has politicized the Justice Department, dictating its priorities along political lines and breaking down the barrier that prior administrations had maintained between political and prosecutorial decision-making,” their letter says.

ny times logoNew York Times, Judge Rejects Bid to Shield Trump From Carroll Lawsuit, Alan Feuer and Benjamin Weiser, Oct. 28, 2020 (print ed.). A federal judge ruled on Tuesday that President Trump can be personally sued for defamation in connection with his denial while in office of a decades-old rape allegation.

The judge, Lewis A. Kaplan of Federal District Court in Manhattan, rejected the Justice Department’s attempt to step into the case and defend the president, and his ruling means that, for the moment, a lawsuit by the writer E. Jean Carroll can move forward against Mr. Trump, in his capacity as a private citizen.

e jean carrollMs. Carroll (shown at left and in a file photo below right) has accused Mr. Trump of raping her in a department store dressing room in the 1990s. Her lawsuit claims he harmed her reputation when he denied the attack last year and branded her a liar.

Last month, the Justice Department abruptly intervened on Mr. Trump’s behalf in the suit, which had been filed in state court in New York, citing a law designed to protect federal employees against litigation stemming from the performance of their duties.

e jean carroll twitterUnder that law, the Federal Tort Claims Act, the department sought to move Ms. Carroll’s suit to federal court and to substitute the United States for Mr. Trump as the defendant — a move that would have likely led to the dismissal of the charges.

While the Justice Department has used the law to shield members of Congress from being sued for defamation over things they have said, the department has rarely, if ever, used it to grant immunity to a president.

Judge Kaplan, however, ruled against the department’s maneuver, saying Mr. Trump was not acting in his official capacity when he denied the accusation. “His comments concerned an alleged sexual assault that took place several decades before he took office, and the allegations have no relationship to the official business of the United States,” the judge wrote.

ny times logoNew York Times, Kavanaugh’s Opinion in Wisconsin Voting Case Raises Alarms Among Democrats, Jim Rutenberg and Nick Corasaniti, Oct. 28, 2020 (print ed.). The Supreme Court justice’s suggestion that ballots arriving after Election Day could “flip the results” left voting rights activists concerned about how the court might rule in postelection fights.

The Supreme Court decision on Monday barring the counting of mail-in ballots in Wisconsin that arrive after Election Day was not a surprise for many Democrats, who had pressed for it but expected to lose.

But a concurring opinion by Justice Brett M. Kavanaugh set off alarms among civil rights and Democratic Party lawyers, who viewed it as giving public support to President Trump’s arguments that any results counted after Nov. 3 could be riddled with fraudulent votes — an assertion unsupported by the history of elections in the United States.

The decision also unnerved Democrats and local election officials in Pennsylvania, where Republicans are asking the Supreme Court to weigh in again on whether the state can accept ballots received up to three days after Election Day. While Democrats in Wisconsin had been appealing for an extension, the current rules in Pennsylvania allow for ballots to arrive three days after the election. Any change could threaten the more than 1.4 million absentee ballots not yet returned.

In his opinion, attached to the 5-to-3 ruling against the deadline extension in Wisconsin, Justice Kavanaugh wrote that Election Day mail-in deadlines were devised “to avoid the chaos and suspicions of impropriety that can ensue if thousands of absentee ballots flow in after Election Day and potentially flip the results of an election.”

He added, “Those states also want to be able to definitively announce the results of the election on election night, or as soon as possible thereafter.”

Justice Kavanaugh’s statement mirrored in some ways Mr. Trump’s efforts to suggest that only ballots counted by Election Day should decide the result, and more generally to push unfounded claims about widespread voter fraud.

Earlier on Monday, the president had posted on Twitter that election officials “must have final total on November 3rd,” alleging without evidence that there are “big problems” with mail-in ballots. Twitter labeled the tweet “misleading.”

The Wisconsin ruling was the latest in a series of court decisions setting the rules for how voters in different states can cast their ballots during the coronavirus pandemic and when the cutoff is for receiving them.

The Wisconsin ruling revealed a stark divide among the justices in their understanding of the role of the courts in protecting the right to vote during a pandemic and left voting rights activists concerned about how the court’s conservative majority would rule in any postelection fights.

Law, Politics, Threats

ny times logoNew York Times, How to Fix the Supreme Court (Opinion Forum): Pack the Courts, Larry Kramer (former dean of Stanford Law School), Oct. 28, 2020. Democracy depends on norms as well as law, and respecting established norms is essential in a diverse society. The norms that get layered on top of laws are what enable groups with fundamentally different ideas and objectives to live and work together. And if the past decade has taught us anything, it is that a politics of abandoning norms to win today’s battle is mutilating our democracy.

So, yes, Republicans had the legal power to refuse a hearing to Judge Merrick Garland even though he was nominated nearly eight months before the 2016 election, just as they had the legal power to ram Amy Coney Barrett’s nomination through the Senate Judiciary Committee two weeks before the Nov. 3 election.

And yes, they had the legal power to do so even while offering disgracefully hypocritical justifications: denying Judge Garland a hearing because, they said, legitimacy required waiting for an election that was close in time, while rushing through a last-minute appointment for Judge Barrett lest they lose an election that’s much, much closer.

But both acts betrayed a ruthless willingness to politicize judicial selection in extreme ways that upended long-established norms.

Liberals say that if Joe Biden wins the election, Democrats should answer by adding justices to the Supreme Court. Republicans respond with faux outrage that this would politicize the judiciary.

But they have already politicized the judiciary. The question is whether only one side should play that game. Besides, not only is enlarging the Supreme Court legal, its size has changed seven times over its history.

Adding judges would be a political response to a political act. But the extreme

s to which Republicans have been willing to go leave the Democrats no other choice. Not for revenge or because turnabout is fair play, but as the only way back to a less politicized process.

This is a lesson we learned decades ago from economists and game theorists: Once cooperation breaks down, the only play to restore it is tit-for-tat. It’s the only way both sides can learn that neither side wins unless they cooperate.

ny times logoNew York Times, Opinion: The Supreme Court Should Stay Out of State Election Law, Akhil Reed Amar, Vikram David Amar and Neal Kumar Katyal, right (The neal katyal oauthors are law professors), Oct. 28, 2020. Allowing federal courts to muck around with state election laws is dangerous and destabilizing.

Just as they did in the infamous Bush v. Gore litigation in 2000, Republican lawyers are trying to get the Supreme Court to undermine state court rulings protecting voting rights under state law. Their theory? That state courts, by relying in part on state constitutions, are wrongly exercising power that belongs to state legislatures.

This idea that state constitutions are irrelevant, and that all that matters is what state legislatures say, is preposterous. Yet recent events suggest this wrongheaded theory may have some traction among the justices.

And this theory has huge consequences. It would mean that many of the decisions you are reading about, where state judges are applying state constitutions to protect the right to vote (say, by finding that ballots postmarked by Election Day will be counted, or that onerous witness requirements will be relaxed because of Covid-19) would now be fair game for the Supreme Court to reverse — even though these decisions are interpretations of state law by state courts.

So far, partisan attempts to involve the federal judiciary have failed, and rightly so. Early last week, the Supreme Court rejected an effort by Pennsylvania Republicans to overturn a Pennsylvania Supreme Court decision that votes postmarked by Election Day but received a few days later must be counted. The court deadlocked 4-4, letting the state court decision stand, with Chief Justice John Roberts joining the court’s three Democratic appointees in voting to leave undisturbed what the state court had done.

Now the Republican challengers are trying to bring the case back before the court, hoping to win support from its newest member, Amy Coney Barrett. We may see a similar push to overturn a second Pennsylvania Supreme Court ruling issued last Friday, also protecting state voters’ rights — this time to have their votes counted notwithstanding technical signature glitches in mail-in or absentee ballots.

Federal courts have no business interfering in state-law matters. As the three of us wrote back in 2000, the effort of several justices to hijack state law in Bush v. Gore was a disgrace. These justices asserted that the “Florida Supreme Court’s interpretation of the Florida election laws impermissibly distorted them beyond what a fair reading required.” Of course, “fair reading” meant how these justices read state law, not how Florida’s expert judges saw the matter.

ny times logoNew York Times, Justices Decline to Hear Pennsylvania Ballot Case Before Election Day, Adam Liptak, Oct. 28, 2020. The Supreme Court refused a plea from the state’s Republicans to expedite a ruling on their request to halt an extension of the absentee-ballot deadline. The court deadlocked last week in the same case, but Justice Amy Coney Barrett did not participate in the second request for review.

The Supreme Court on Wednesday refused a plea from Pennsylvania Republicans to put their request to halt a three-day extension of the deadline for receiving absentee ballots on an extraordinarily fast track.

The move meant that the court would not consider the case, which could have yielded a major ruling on voting procedure, until after Election Day.

Justice Amy Coney Barrett, who joined the court on Tuesday and who might have broken an earlier deadlock in the case, did not cast a vote. A court spokeswoman said Justice Barrett “did not participate in the consideration of this motion because of the need for a prompt resolution of it and because she has not had time to fully review the parties’ filings.”

The court’s brief order gave no reasons for declining to expedite consideration of the case. In a separate statement, Justice Samuel A. Alito Jr., joined by Justices Clarence Thomas and Neil M. Gorsuch, said the court may still consider the case after the election.

washington post logoWashington Post, Trump’s attacks on adversaries often followed by threats to their safety, Greg Miller and Isaac Stanley-Becker, Oct. 28, 2020. Public officials are increasingly forced to take extraordinary security precautions after vitriolic words by the president.

washington post logoWashington Post, Analysis: Jeering sign-wavers. Caravans of honking trucks. Voter intimidation or free speech? Abigail Hauslohner, Oct. 28, 2020 (print ed.). Amid the charged political rhetoric ahead of Election Day, some confrontations at polling sites seem on the cusp of violence. But much of it is protected campaigning, and legal.

Some of the loud displays, often from supporters of President Trump and particularly frustrating to Democrats, have prompted local law enforcement agencies to station officers near polling places to keep the peace. In some locations, they have sparked allegations of voter intimidation and fears of tinderbox confrontations on the cusp of escalation in the run-up to Election Day next week.


ny times logoNew York Times, Analysis: ‘Fat and Happy’ With the Court, Did Republicans Lose Their Winning Issue? Jeremy W. Peters, Oct. 28, 2020 (print ed.). President Trump and his party pushed Justice Barrett’s confirmation through in record time. But they could find that satisfied voters, who no longer fear the specter of a liberal court, are also complacent.

The confirmation on Monday of Justice Amy Coney Barrett all but ensures a durable conservative majority on the Supreme Court for years to come and provides the capstone on the Trump administration’s broader effort to push the entire federal judiciary solidly to the right.

Its work has been so fast and so effective that there is only one vacancy now in the appellate courts: the seat left open by Justice Barrett’s promotion.

But President Trump and Republicans risk becoming victims of their own success. Without the specter of a liberal court to motivate conservative voters anymore, they may find themselves without the issue that played a crucial role in Mr. Trump’s unexpected victory four years ago and has fortified his political base throughout a tumultuous first term.

“It’s like the dog catching the car,” said Charlie Cook, editor of the nonpartisan Cook Political Report, which handicaps elections and is forecasting a difficult environment for Republicans up and down the ballot.

U.S. Crime, Cults

Law & Crime, Therapist Shot Her Twin 7-Year-Old Daughters While They Were Sleeping, Then Killed Herself: Deputies, Alberto Luperon, Oct 28, 2020. A therapist in Washington state shot and killed her twin 7-year-old daughters while they were sleeping, said the Whatcom County Sheriff’s Office on Monday. The woman, 55-year-old Michele Boudreau Deegan, then died by suicide, according to authorities.

Authorities said that a roommate at the multi-level home reported finding his landlord and her children dead in an upstairs bedroom.

Investigators suggested this crime happened on Friday evening. They say preliminary findings show that the suspect was in a custody dispute in connection to the children. That looks like the primary motive, deputies said.

The girls were identified as Mairy Anneleise Deegan and Katie Elizabeth Deegan, according to The Bellingham Herald.

Boudreau was a psychotherapist. Posts on her Facebook page often concerned abuse. A spate of these were put up on Friday, with headlines “Why Survivors of Malignant Narcissists Don’t Get the Justice They Deserve,” and “Depression and Suicidal Thoughts Caused by Narcissistic Relationships.” In one post Friday morning, the post author wrote, “Abuse is forever,” over a link that featured the headline, “The Narcissist – From Abuse to Suicide.”

A sheriff’s office spokesperson told the Herald that deputies had not responded to the residence within a year for 911 calls in connection to matters including domestic violence or mental health. A source, described as a “a person who knows the family situation,” told KIRO7 that others looked out for the girls, and contacted child welfare. This individual said the mother was troubled.

keith raniere hbo

ny times logoNew York Times, Leader of Nxivm Sex Cult Is Sentenced to 120 Years in Prison, Nicole Hong and Sean Piccoli, Oct. 28, 2020 (print ed.). In the courtroom, more than a dozen victims gave wrenching testimony about how the group’s leader, Keith Raniere, shown above in an HBO documentary, manipulated and sexually abused them.

Keith Raniere promised a path to happiness, seducing wealthy people who felt they lacked a higher purpose in life. His company, Nxivm, offered self-improvement workshops that became popular in Hollywood and business circles.

But beneath the surface, Mr. Raniere was a puppet master controlling a cultlike criminal enterprise, prosecutors revealed at his trial. Some women in Nxivm were sexually abused by Mr. Raniere, and even branded with his initials in a secret ceremony.

On Tuesday, Mr. Raniere, 60, was sentenced to 120 years in prison for sex trafficking and other crimes, effectively a life sentence. The judge also ordered him to pay a $1.75 million fine.

The sentencing capped a remarkable downfall for a man who was once idolized by his followers, but has since been exposed as a fraudster who exploited Nxivm’s adherents for money, sex and power.

Judge Nicholas G. Garaufis of Federal District Court in Brooklyn determined the punishment after hearing hours of wrenching testimony from 15 victims, many of whom described how Mr. Raniere had left them traumatized and brainwashed from his pseudoscientific teachings.

Mr. Raniere’s lawyer, Marc Agnifilo, said he would appeal the sentence. “I salute the people who came in and spoke,” he said.

The first to speak was a woman identified only as Camila, who in a trembling voice recalled that Mr. Raniere started sexually abusing her when she was 15 and he was 45. She had previously declined to cooperate with prosecutors on the advice of a lawyer who was recommended to her by Mr. Raniere’s counsel.

During their 12-year relationship, Camila said, Mr. Raniere expected her to be available for sex at all hours. He ordered her to weigh less than 100 pounds and directed her to get an abortion. She said she attempted suicide once.

“I want to move on, but he has damaged me in so many ways,” Camila said.

When he wanted to replace Camila, prosecutors have said, he directed his inner circle to find another “young virgin successor” for him.

Camila’s mother, brother and a sister also spoke on Tuesday, telling the judge that Mr. Raniere destroyed their once close-knit family. The father and oldest daughter in the family — who had a child with Mr. Raniere — are still supporters of him. Mr. Raniere had a sexual relationship with all three sisters in the family.

In a speech before the court, Mr. Raniere, wearing blue prisoner clothes, maintained his innocence and said some of the victims were lying. He said he was “deeply sorry,” arguing that he did not mean to cause so much pain and anger.

“Where I am is caused by me,” Mr. Raniere said. “This is all my doing.”

As Mr. Raniere waffled between apologizing and blaming the women, one of his victims and ex-girlfriends, Toni Natalie, buried her head in her hands.

After the victims’ statements, Mr. Raniere’s lawyer, Mr. Agnifilo, argued that his client never intended to hurt any women, saying he was in love with them and simply had trouble dealing with breakups. In a stunning moment, Judge Garaufis interrupted Mr. Agnifilo in the middle of his speech, yelling, “No!”

During a back-and-forth in which the two men shouted through face masks, Judge Garaufis spoke forcefully about how intent did not matter when a 45-year-old man sexually abuses a child.

“It’s an insult to the intelligence of anyone who listens,” the judge said.

Mr. Agnifilo did seem to acknowledge tensions with his client, saying that he had refused to file a motion claiming evidence tampering by the government even though Mr. Raniere asked him to. In recent months, Mr. Raniere has spearheaded a campaign to overturn his conviction, directing his supporters to create a podcast about his case and set up a contest to find errors in his prosecution in exchange for a $25,000 cash prize.

Another victim, India Oxenberg, told the court that Mr. Raniere tried to poison her relationship with her mother, the actress Catherine Oxenberg, whose efforts to extricate her daughter from the organization were part of a recent HBO documentary series about Nxivm called “The Vow.”

India Oxenberg said Mr. Raniere expected her to wait naked for him, like a piece of meat. She became so thin under his manipulation that she stopped getting her period, she said.

“You are a sexual predator, and you raped me,” India Oxenberg said. “When you touched me, I recoiled.”

Former Nxivm (pronounced NEX-ee-um) members said Mr. Raniere preyed on insecure people who hoped that immersing themselves in expensive self-help classes would unlock the key to fulfillment. Even highly educated people became trapped inside Mr. Raniere’s system, which he sold as the only way to overcome their fears, shaming anyone who tried to quit.

At Mr. Raniere’s trial, a primary focus was a secretive women-only group inside Nxivm. During a videotaped initiation ceremony, the women lay naked on a table, saying, “Master, please brand me,” as a cauterizing pen seared their skin without anesthesia.

Some of those women testified that they thought they were joining a women’s mentorship group, only to discover that they were directed to have sex with Mr. Raniere.

The women, referred to as “slaves,” were regularly required to hand over collateral like sexually explicit videos, which they constantly feared would be released. Prosecutors called it extortion.

Oct. 27

washington post logoWashington Post, Senate confirms Barrett to Supreme Court, cementing its conservative majority, Seung Min Kim, Oct. 27, 2020 (print ed.). The U.S. Senate voted 52-48 to confirm Judge Amy Coney Barrett to the Supreme Court on Oct. 26. (The Washington Post)

amy coney barrett headshot notre dame photoA bitterly divided Senate confirmed Amy Coney Barrett as the 115th justice to the Supreme Court on Monday, elevating just the fifth woman to the court in its 231-year history and one who further cements its conservative shift — a legacy that will last even if Republicans lose power in next week’s elections.

The vote was 52-48 for Barrett, President Trump’s third nominee to the Supreme Court. The 48-year-old jurist solidifies a judicial legacy for the White House and Senate Republicans that also includes dozens of younger and more ideologically conservative judges to the federal appeals courts. An acolyte of the late Justice Antonin Scalia, Barrett is certain to diverge dramatically from the woman she will succeed: Justice Ruth Bader Ginsburg, who died Sept. 18 and was for decades an enduring icon for liberals.

The battle to confirm Barrett — whose installation occurred as more than 60 million people had already cast their ballots for president — also plunged a Senate already bruised by years of tit-for-tat skirmishes in the judicial wars into deeper partisan acrimony. Incensed Democrats charged Republicans with hypocrisy for blocking President Barack Obama’s Supreme Court nominee for eight months in 2016 and repeatedly pointed out that no justice has been confirmed this close to a presidential election.

supreme court buildingBut Republicans asserted their raw power, muscling Barrett’s nomination through in just over four weeks and with no bipartisan support — the first time that has occurred for a Supreme Court nominee in generations and a reflection of the politicized atmosphere around judicial fights.

“The reason we were able to do what we did in 2016, 2018 and 2020 is because we had the majority,” Senate Majority Leader Mitch McConnell (R-Ky.) said Monday shortly before the Senate confirmed Barrett. “No rules were broken whatsoever. So all of these outlandish claims are utterly absurd, and the louder they scream, the more inaccurate they are.”

The White House planned an outdoor ceremony after the vote Monday to celebrate her confirmation and Justice Clarence Thomas was expected to administer the constitutional oath. Supreme Court justices take two oaths — one to protect and uphold the Constitution, and another about judicial conduct.

The battle to confirm Barrett — whose installation occurred as more than 60 million people had already cast their ballots for president — also plunged a Senate already bruised by years of tit-for-tat skirmishes in the judicial wars into deeper partisan acrimony. Incensed Democrats charged Republicans with hypocrisy for blocking President Barack Obama’s Supreme Court nominee for eight months in 2016 and repeatedly pointed out that no justice has been confirmed this close to a presidential election.

ny times logoNew York Times, Missing From Supreme Court’s Election Cases: Reasons for Its Rulings, Adam Liptak, right, Oct. 27, 2020 (print ed.). In a series of unsigned adam liptakorders, the court has been deciding many election disputes on its “shadow docket” without a murmur of explanation, our correspondent writes.

At least nine times since April, the Supreme Court has issued rulings in election disputes. Or perhaps “rulings” is too generous a word for those unsigned orders, which addressed matters as consequential as absentee voting during the pandemic in Alabama, South Carolina and Texas, and the potential disenfranchisement of hundreds of thousands of people with felony convictions in Florida.

Most of the orders, issued on what scholars call the court’s “shadow docket,” did not bother to supply even a whisper of reasoning.

“This idea of unexplained, unreasoned court orders seems so contrary to what courts are supposed to be all about,” said Nicholas Stephanopoulos, a law professor at Harvard. “If courts don’t have to defend their decisions, then they’re just acts of will, of power. They’re not even pretending to be legal decisions.”

The orders were responses to emergency applications, and they were issued quickly, without full briefing or oral arguments (hence the “shadow docket”).

 ny times logoNew York Times, Trump Defiantly Mimics Rose Garden Ceremony, With More Masks, Peter Baker, Updated Oct. 27, 2020. President Trump hosted a nighttime event on the White House lawn to swear in Amy Coney Barrett as the next Supreme Court justice.

President Trump, who loves to boast of doing anything his predecessors have never done, pulled off such a historic first on Monday. He won confirmation of a Supreme Court justice only eight days before a presidential election, rushing his choice through the Senate before voters decide whether to give him four more years or kick him out of office.

Mr. Trump then did something else no other president has done. He hosted a nighttime ceremony on the White House lawn to swear in Justice Amy Coney Barrett in a virtual do-over of the superspreader event blamed for infecting multiple people with the coronavirus a month ago to the day, including the president himself, who was forced to spend three nights in the hospital.

To Mr. Trump, the first history-maker outweighed the second, a chance to celebrate a landmark political victory regardless of the risk. It was, in effect, the triumph of defiance over experience, a stubborn gesture by a president who refuses to acknowledge the continuing threat of a pandemic that has killed more than 225,000 people in the United States even after it has swept through his own circle of aides, advisers and allies. Undaunted and unbowed, Mr. Trump hosted the event even as five people working for Vice President Mike Pence have tested positive in recent days.

This time, at least, the White House made some concessions to the virus. Unlike the Rose Garden event on Sept. 26 when Mr. Trump announced his nomination of Justice Barrett, apparently leading to a raft of infections, the ceremony on Monday night marking her confirmation was held on the roomier South Lawn, with folding chairs seated several feet apart and guests required to wear masks.

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President Trump and Justice Amy Coney Barrett at the White House on Monday. (Jabin Botsford/The Washington Post)

washington post logoWashington Post, Opinion: There’s no more doubt: Democrats have to expand the Supreme Court, Paul Waldman, Oct. 27, 2020. Keep this image in your mind: Justice Amy Coney Barrett, standing with President Trump on a balcony at the White House, smiling in satisfaction as the crowd below them whoops and hollers with joy after Barrett was sworn in to the Supreme Court.

Barrett no longer needs to pretend that she’s anything other than what she is: a far-right judge, installed on the Supreme Court by a president who got fewer votes than his opponent and confirmed by a Republican majority that represents fewer voters than their Democratic colleagues, whose job it will be to do everything in her power to maintain minority GOP rule while carrying out a conservative judicial revolution.

That picture of Barrett and Trump reveling in their mutual triumph was so vivid that the Trump campaign literally turned it into an ad for the president’s reelection. A different person might have said, “Mr. President, it wouldn’t be appropriate for me to participate in such a nakedly political event.” But Barrett wasn’t concerned. She didn’t shout “MAGA 2020!” but she might as well have.

So now it is up to Democrats to recalibrate their understanding of just what is and isn’t appropriate — starting with expanding the Supreme Court as soon as they have the opportunity, which could come in January 2021.

This may be the single most important thing they have to remember: Their actions must not be determined by whether Republicans will complain.

Unfortunately, that’s how Democrats usually see things. If Republicans raise a stink — or even if they just assume Republicans might raise a stink — then Democrats shrink back in fear, lest the action they’re contemplating be considered inappropriate.

But by now they should understand that Republicans will say that everything they do, no matter how by-the-book it might be, is an egregious violation of propriety and good conduct. That’s how Republicans operate, precisely because they know Democrats are deeply concerned with whether processes are conducted in fair and reasonable ways.

But Democrats should listen to Sen. Mitch McConnell (R-Ky.). Here’s part of what the Senate Majority Leader said Monday during the floor debate on Barrett’s nomination:

Our colleagues cannot point to a single Senate rule that’s been broken. They made one false claim about committee procedure which the parliamentarian dismissed.

The process comports entirely with the Constitution.

We don't have any doubt, do we, that if the shoe was on the other foot, they would be confirming this nominee. And have no doubt if the shoe was on the other foot in 2016, they would have done the same thing. Why? Because they had the elections that made those decisions possible. The reason we were able to make the decision we did in 2016 is because we had become the majority in 2014.

The reason we were able to do what we did in 2016, 2018, and 2020 is because we had the majority. No rules were broken whatsoever.

To clarify, the dates McConnell refers to are when he and Republicans refused to hear President Barack Obama’s nomination of Merrick Garland (2016), changing the size of the court from nine to eight justices and then back again; the nomination of Brett M. Kavanaugh (2018); and Barrett’s nomination (2020).

“The reason we were able to do what we did … is because we had the majority.” It’s the rule McConnell has lived by: Whatever Republicans can do, they will do, if it gives them an advantage.

And he’s right that neither the Constitution nor the rules of the Senate were violated in any of those cases. Nor would it violate the Constitution for Democrats to say that just as Republicans changed the size of the court in 2016 (and as happened many times in the country’s early years), Democrats will now change the size of the court again.

They should do this not only to restore balance after the extraordinary actions McConnell and Republicans undertook, but also as part of a desperately needed effort to stop America’s slide into minority rule and restore something resembling democratic responsiveness to the entire system.

That goes along with eliminating the filibuster so the majority of senators can pass the agenda voters elected them to enact; granting statehood to the District of Columbia and Puerto Rico so the millions of Americans who live in those places can have representation in Congress; and passing a new Voting Rights Act that prevents GOP efforts to disenfranchise voters.

Whenever Democrats waver in their willingness to do what needs to be done to safeguard democracy, they should remember that McConnell is almost daring them to do it, precisely because he thinks they don’t have the guts.

“A lot of what we’ve done over the last four years will be undone, sooner or later, by the next election,” he said Sunday about Barrett’s nomination. “But they won’t be able to do much about this for a long time to come.”

But they can, and they should, no matter how much Republicans whine about it. If voters give them the White House and the Senate, they’ll have the legal right and the moral obligation to do so. Without it we won’t have a real democracy.

washington post logoWashington Post, Trump’s conservative imprint on the judiciary gives Democrats a playbook — if they win, Seung Min Kim, Oct. 27, 2020 (print ed.). The president’s first-term judicial legacy, primarily engineered by Sen. Mitch McConnell and his singular focus on the courts, culminates Monday with the expected confirmation of Amy Coney Barrett to the Supreme Court.

President Trump’s first-term record on the federal judiciary — which will reach its apex Monday with the expected confirmation of Amy Coney Barrett as his third Supreme Court justice — will be difficult to roll back even if Democrats win both the White House and the Senate majority.

But the pipeline of conservative judges and the fast-track procedures used by Republicans to confirm them gives a potential President Joe Biden and a Democratic-led Senate a rough playbook to try to install their own stream of liberal nominees.

The judicial legacy set by Trump but engineered primarily by Senate Majority Leader Mitch McConnell (R-Ky.) includes several significant milestones, including the trio on the Supreme Court and the fact that for the first time in 40 years, there are no openings on the circuit courts. That has been a monumental achievement for a majority leader whose mantra has been “leave no vacancy behind” and a president who simply just likes to win.

For the first time in more than four decades, there are no vacancies on the circuit court level, where approximately 30 percent of those sitting on the bench have been nominated by Trump. Only President Jimmy Carter had more circuit court judges, as well as a larger share of the entire federal appellate bench, confirmed in his first term, and that was before the number of seats in the circuit courts was expanded.

washington post logoWashington Post, Opinion: Republicans have already packed state supreme courts, Marin K. Levy, Oct. 27, 2020 (print ed.). Norms against changing the size of courts for partisan reasons are selectively upheld.

The Senate’s bare Republican majority is poised to confirm Amy Coney Barrett to a seat on the Supreme Court. But the controversy sparked by her nomination will continue, and Democrats are already discussing whether and how to “pack” the court by creating new seats. That debate, though, and especially the Republican rhetoric against court-packing, is missing an important development: numerous recent efforts across the country, the majority of them spearheaded by Republicans, to pack (and unpack) state courts.

Republican leaders have consistently described changing the size of the Supreme Court (which varied until 1869, when it reached its modern total of nine seats) in dire terms. At the Barrett hearings, Sen. Mike Lee (R-Utah) said such a move would “do great political harm to our government.” Sen. Ted Cruz (R-Tex.) stated that expanding the court would be "an abuse of power.” And Sen. Ben Sasse (R-Neb.) went one step further, calling court-packing a “partisan suicide bombing.”

But such “bombings” have frequently been attempted at the state level, where courts collectively decide the vast majority of the country’s civil and criminal cases. In 2018, more than 33 million such cases were initiated in state courts, compared with 376,000 in federal district courts. State courts decide cases with at least as much importance to individual lives and national policies alike as federal courts do, including crucial matters, such as partisan gerrymandering, that the federal courts have tended to avoid.

That makes the attempts to pack — or unpack — state courts especially important. In the past decade alone, lawmakers in 11 states have introduced at least 20 bills to expand or contract the size of their state supreme courts. The vast majority of these efforts were made by Republicans, often for apparent partisan advantage. That is, many of these lawmakers appear to have attempted to change the size of their highest state court to affect its ideological composition — and two of these attempts have succeeded.

Marin K. Levy is a professor of law at Duke Law School and author of "Packing and Unpacking State Courts," published in the William & Mary Law Review earlier this year.

ny times logoNew York Times, Judge Rejects Bid to Shield Trump From Carroll Lawsuit, Alan Feuer and Benjamin Weiser, Oct. 27, 2020. A federal judge ruled on Tuesday that President Trump can be personally sued for defamation in connection with his denial while in office of a decades-old rape allegation.

The judge, Lewis A. Kaplan of Federal District Court in Manhattan, rejected the Justice Department’s attempt to step into the case and defend the president, and his ruling means that, for the moment, a lawsuit by the writer E. Jean Carroll can move forward against Mr. Trump, in his capacity as a private citizen.

e jean carrollMs. Carroll (shown at left and in a file photo below right) has accused Mr. Trump of raping her in a department store dressing room in the 1990s. Her lawsuit claims he harmed her reputation when he denied the attack last year and branded her a liar.

Last month, the Justice Department abruptly intervened on Mr. Trump’s behalf in the suit, which had been filed in state court in New York, citing a law designed to protect federal employees against litigation stemming from the performance of their duties.

e jean carroll twitterUnder that law, the Federal Tort Claims Act, the department sought to move Ms. Carroll’s suit to federal court and to substitute the United States for Mr. Trump as the defendant — a move that would have likely led to the dismissal of the charges.

While the Justice Department has used the law to shield members of Congress from being sued for defamation over things they have said, the department has rarely, if ever, used it to grant immunity to a president.

Judge Kaplan, however, ruled against the department’s maneuver, saying Mr. Trump was not acting in his official capacity when he denied the accusation. “His comments concerned an alleged sexual assault that took place several decades before he took office, and the allegations have no relationship to the official business of the United States,” the judge wrote.

ny times logoNew York Times, Analysis: ‘Fat and Happy’ With the Court, Did Republicans Lose Their Winning Issue? Jeremy W. Peters, Oct. 27, 2020. President Trump and his party pushed Justice Barrett’s confirmation through in record time. But they could find that satisfied voters, who no longer fear the specter of a liberal court, are also complacent.

The confirmation on Monday of Justice Amy Coney Barrett all but ensures a durable conservative majority on the Supreme Court for years to come and provides the capstone on the Trump administration’s broader effort to push the entire federal judiciary solidly to the right.

Its work has been so fast and so effective that there is only one vacancy now in the appellate courts: the seat left open by Justice Barrett’s promotion.

But President Trump and Republicans risk becoming victims of their own success. Without the specter of a liberal court to motivate conservative voters anymore, they may find themselves without the issue that played a crucial role in Mr. Trump’s unexpected victory four years ago and has fortified his political base throughout a tumultuous first term.

“It’s like the dog catching the car,” said Charlie Cook, editor of the nonpartisan Cook Political Report, which handicaps elections and is forecasting a difficult environment for Republicans up and down the ballot.

ny times logoNew York Times, The Supreme Court ruled that Wisconsin could not extend its deadline for mailed ballots, Adam Liptak, Oct. 27, 2020 (print ed.). In April, the court had assumed an extension was permissible, though it insisted that ballots be mailed and postmarked before Election Day.

The Supreme Court refused on Monday to revive a trial court ruling that would have extended Wisconsin’s deadline for receiving absentee ballots to six days after the election.

The vote was 5 to 3, with the court’s more conservative justices in the majority. As is typical, the court’s brief, unsigned order gave no reasons. But several justices filed concurring and dissenting opinions that spanned 35 pages and revealed a stark divide in their understanding of the role of the courts in protecting the right to vote during a pandemic.

The ruling was considered a victory for Republicans in a crucial swing state, which polls have shown Mr. Trump trailing in after winning by about 23,000 votes in 2016.

The Democratic Party of Wisconsin immediately announced a voter education project to alert voters that absentee ballots have to be received by 8 p.m. on Election Day, Nov. 3. “We’re dialing up a huge voter education campaign,” Ben Wikler, the state party chairman, said on Twitter. The U.S. Postal Service has recommended that voters mail their ballots by Oct. 27 to ensure that they are counted.

ny times logoNew York Times, Kavanaugh’s Opinion in Wisconsin Voting Case Raises Alarms Among Democrats, Jim Rutenberg and Nick Corasaniti, Oct. 27, 2020. The Supreme Court justice’s suggestion that ballots arriving after Election Day could “flip the results” left voting rights activists concerned about how the court might rule in postelection fights.

The Supreme Court decision on Monday barring the counting of mail-in ballots in Wisconsin that arrive after Election Day was not a surprise for many Democrats, who had pressed for it but expected to lose.

But a concurring opinion by Justice Brett M. Kavanaugh set off alarms among civil rights and Democratic Party lawyers, who viewed it as giving public support to President Trump’s arguments that any results counted after Nov. 3 could be riddled with fraudulent votes — an assertion unsupported by the history of elections in the United States.

The decision also unnerved Democrats and local election officials in Pennsylvania, where Republicans are asking the Supreme Court to weigh in again on whether the state can accept ballots received up to three days after Election Day. While Democrats in Wisconsin had been appealing for an extension, the current rules in Pennsylvania allow for ballots to arrive three days after the election. Any change could threaten the more than 1.4 million absentee ballots not yet returned.

In his opinion, attached to the 5-to-3 ruling against the deadline extension in Wisconsin, Justice Kavanaugh wrote that Election Day mail-in deadlines were devised “to avoid the chaos and suspicions of impropriety that can ensue if thousands of absentee ballots flow in after Election Day and potentially flip the results of an election.”

He added, “Those states also want to be able to definitively announce the results of the election on election night, or as soon as possible thereafter.”

Justice Kavanaugh’s statement mirrored in some ways Mr. Trump’s efforts to suggest that only ballots counted by Election Day should decide the result, and more generally to push unfounded claims about widespread voter fraud.

Earlier on Monday, the president had posted on Twitter that election officials “must have final total on November 3rd,” alleging without evidence that there are “big problems” with mail-in ballots. Twitter labeled the tweet “misleading.”

The Wisconsin ruling was the latest in a series of court decisions setting the rules for how voters in different states can cast their ballots during the coronavirus pandemic and when the cutoff is for receiving them.

The Wisconsin ruling revealed a stark divide among the justices in their understanding of the role of the courts in protecting the right to vote during a pandemic and left voting rights activists concerned about how the court’s conservative majority would rule in any postelection fights.

Oct. 26

washington post logoWashington Post, Senate confirms Barrett to Supreme Court, cementing its conservative majority, Seung Min Kim, Oct. 26, 2020 at 8:54 p.m. The U.S. Senate voted 52-48 to confirm Judge Amy Coney Barrett to the Supreme Court on Oct. 26.

American System Radio, Opinion: Barrett Confirmed for Supreme Court by 52-48 Vote in Senate, Webster G. Tarpley, right, Oct. 26, 2020. Ultra-Reactionary webster tarpley 2007Majority of Republican Legal Positivists Takes Shape on High Court; GOP Orgy of Rule Breaking Must Set Stage for Reform of Hijacked Court, Adding Justices; New Extremist Majority Is Designed to Enable a Trump November Coup and Resulting Dictatorship; Perversion of Judiciary Was Key Feature of Fascist Regimes Like Italy in 1920s and Germany in 1930s; Expect Atrocities against Constitution and General Welfare within Days!

More Plans for Second Term Dictatorship: Trump Wants to Fire Esper of Pentagon, Wray of FBI, and Haspel of CIA; Replacements Are Guaranteed to Be Worse; Don Plans Purge of Federal Civil Service and Removal of Safeguards against Partisan Thuggery; Ronald Sanders, a Trump Appointee on Civil Service Commission, Resigns in Protest

FBI logoEurope and US Face Exponential Growth of Pandemic, as Spain and Italy Implement New Countermeasures; White House Chief of Staff Meadows Admits US Defeat in Pandemic That Trump Cannot Control; Herd Immunity Rules; On Campaign Trail, Trump Again Suggests that Contagion Is Political Hoax against Him That Will Disappear on November 4; US Deaths Pass 225,000.

Biden to Campaign in Georgia, Visiting Franklin D. Roosevelt’s Polio Treatment Center at Warm Springs.

Note to Media: Stop Helping GOP by Calling Them Conservatives! Most Are Reactionaries, with Not a Few Fascists! Breaking: In Harbinger of Horrors to Come, pre-Barrett Supreme Court Stops Wisconsin from Counting Mail-In Ballots Arriving after Election Day.

 djt brett kavanaugh amy coney barrett

ny times logoNew York Times, Barrett Set to Be Confirmed to the Supreme Court, Neil Vigdor, Nicholas Fandos and Sydney Ember, Oct. 26, 2020 (print ed.). Judge Amy Coney Barrett’s confirmation today will give conservatives six of the court’s nine seats, and reverberations will be felt far and wide. The vote comes a day after Democrats in the Senate unsuccessfully tried to filibuster the nomination in protest.

As the presidential race enters its final week — the stakes of which have been magnified by a Supreme Court vacancy — Republicans in the Senate are poised on Monday to bring to a quick close their hastened confirmation of President Trump’s nominee, Judge Amy Coney Barrett.

The vote, expected in the evening, comes a day after Democrats in the chamber unsuccessfully tried to filibuster the nomination to protest a decision they say should be left to the winner of the presidential election.

The addition of Judge Barrett to the court would give conservatives six of the court’s nine seats, which Democrats have made a focus of the campaign this fall after the death of Justice Ruth Bader Ginsburg. They say it threatens women’s reproductive rights and protections for millions of Americans under the Affordable Care Act.

It also immediately calls into question whether Judge Barrett would recuse herself from ruling on lawsuits over the election, a scenario that has seemingly become more likely each time Mr. Trump has tried to cast aspersions on the integrity of voting.

“We’ve made an important contribution to the future of this country,” Senator Mitch McConnell, Republican of Kentucky and the majority leader, said in a speech just after the filibuster vote on Sunday. “A lot of what we’ve done over the last four years will be undone sooner or later by the next election. They won’t be able to do much about this for a long time to come.”

washington post logoWashington Post, Enlarging the Supreme Court is the only answer to the right’s judicial radicalism, E.J. Dionne Jr., right, Oct. 25, 2020. There is only one good thing ej dionne w open neckthat can come from the power-mad Republican rush to jam Amy Coney Barrett onto the Supreme Court before Election Day: Of a sudden, as the late Daniel Patrick Moynihan used to say, Americans in the tens of millions now know that our country faces a crisis of democracy triggered by the right wing’s quest for unchecked judicial dominance.

Barrett’s testimony before the Senate Judiciary Committee, and President Trump’s comments before nominating her, brought home just how dangerously disrespectful of democratic norms the enlarged conservative majority on the court threatens to be.

Amy Coney Barrett (2018 photo via Rachel Malehorn via Creative Commons and Wikimedia)Her silence on the most basic issues of republican self-rule tells us to be ready for the worst. She wouldn’t say if voter intimidation is illegal, even though it plainly is. She wouldn’t say if a president has the power to postpone an election, even though he doesn’t.

She wouldn’t even say that a president should commit himself to a peaceful transfer of power, telling Sen. Cory Booker (D-N.J.) that “to the extent that this is a political controversy right now, as a judge I want to stay out of it.”

What, pray, is controversial in a democratic republic about the peaceful transfer of power? It’s hard to escape the conclusion that she was nodding to the president who nominated her. He said he wanted a friendly judge on the court to deal with electoral matters, and he continues to signal that one the most hallowed concepts of a free republic is inoperative when it comes to himself.

Wayne Madsen Report (WMR), Opinion: Right-wing SCOTUS justices: Impeach them, Wayne Madsen, Oct. 26, 2020. There is a constitutional method for ridding wayne madesen report logothe U.S. Supreme Court of its two far-right justices, Brett Kavanaugh and Amy Coney Barrett. It borrows a page from the right-wing in the 1960s. C

If a serious and concerted effort to impeach and remove Kavanaugh and Barrett is launched, along with an ethics probe of Clarence Thomas's blatant political activity and conflicts-of-interest involving his far-right wife, the progressives could be looking at six seats on the court, matching the number enjoyed by the Warren Court.

washington post logojennifer rubin new headshotWashington Post, Opinion: Four big constitutional fixes we need, thanks to Trump, Jennifer Rubin,Oct. 26, 2020. If eight days from now former vice president Joe Biden wins the White House and Democrats secure House and Senate majorities, a plethora of reforms will come front and center — from depoliticization of the Justice Department to restoration of the pre-clearance function in the Voting Rights Act to statehood for Washington, D.C.

For now, however, let’s consider four issues that reveal gaps in our constitutional structure regarding presidential power and transparency.

Oct. 25

washington post logoWashington Post, Opinion: Barrett nomination clears Senate hurdle, putting her on course to confirmation to Supreme Court, Seung Min Kim, Oct. 25, 2020. The Senate is poised to vote on the confirmation of Amy Coney Barrett on Monday night. Amy Coney Barrett’s nomination to the Supreme Court broke through djt smiling fileone more hurdle ahead of her all-but-assured confirmation to replace the late Justice Ruth Bader Ginsburg as Democratic senators ramped up their criticism of the conservative judge.

The vote to end a filibuster on her nomination, which occurred around 1:30 p.m. Sunday, was 51-48. Two GOP senators — Susan Collins of Maine and Lisa Murkowski of Alaska — voted with Democrats to oppose Barrett’s nomination from advancing, although Murkowski plans to support the federal appeals court judge on the confirmation vote on Barrett’s merits.Democratic-Republican Campaign logos

The final confirmation vote for Barrett is expected sometime Monday night, putting her in position for a first full day as a justice as early as Tuesday and as the court continues to hear election-related legal challenges ahead of Nov. 3.

Oct. 23

Citizens for Responsibility and Ethics in Washington (CREW), Investigation: $80 million dark money group tied to Trump Supreme Court advisor, Leonard Leo, Robert Maguire, Oct. 23, 2020. A close informal advisor to President Trump who has been deeply involved in all three of his Supreme Court nomination battles is the sole trustee of a mysterious group that brought in more than $80 million in 2018, according to a previously unreported tax return uncovered by CREW. The filing vastly expands the amount of money known to be flowing into the growing constellation of dark money groups tied to Federalist Society co-chairman Leonard Leo and provides new details about his role in a secretive firm that was responsible for one of the largest donations received by President Trump’s inaugural committee.

What makes Rule of Law Trust (RLT) particularly interesting is that despite its $80 million haul, the group seems remarkably hollow. It claimed it had no employees and no volunteers in its first year and listed what appears to be a virtual office in Virginia as its main address. Its stated mission is “to advance conservative principles and causes through communications, research, strategy and assistance to other organizations,” but there’s no apparent public information to demonstrate what that work entails, not even a website.

In an unusual financial arrangement, the group also appears to have channeled nearly all of its $2.7 million in expenditures through the BH Group — an enigmatic firm that, the filing reveals, is partly owned by Leo. The company has long been known to be tied to Leo, but the nature of his role was unknown until now. Just months after it was formed in 2016, the BH Group gave $1 million to President Trump’s inaugural committee — though the only known funds that it has received during that time came from other dark money groups allied with Leo. The ultimate source of the money remains unknown to this day.

“The filing vastly expands the amount of money known to be flowing into the growing constellation of dark money groups tied to Federalist Society co-chairman Leonard Leo.”

The only other people linked to RLT in the sparse filing are either longtime Federalist Society officials-turned-consultants like Leo, or operatives with a long history working behind the scenes on dark money groups tied to Leo. For example, RLT’s single largest payment in 2018 was a $1.5 million consulting fee paid to Jonathan Bunch, a former vice president of the Federalist Society who has been involved in a number of entities tied to Leo. Bunch is now the president of CRC Advisors, a firm formed by Leo this past January. RLT paid an additional $300,004 to a firm called YAS, LLC for consulting. According to DC government records, the firm is registered to Maria Marshall, a former director of operations at the Federalist Society who currently serves as the vice president of CRC Advisors.

The records for RLT are maintained by Neil Corkery — who, along with his wife, Ann, is a longtime ally of Leo’s and has been tied to some of the largest conservative dark money groups in the country for more than a decade. Neil Corkery’s most notable connection is to two groups called the Wellspring Committee and Judicial Crisis Network (JCN), both 501(c)(4) social welfare groups like RLT. For ten years, from 2008 until its termination in 2018, Wellspring served as little more than a passthrough for anonymous money into politically active nonprofits that spent tens of millions of dollars on elections around the country and, in the case of JCN, judicial nominations. Leo has never personally held a formal position at either group, but he is reportedly clo