U.S. High Courts, Cases 2020-21

 

 JIPLogo

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

 

2020-2021

December

Dec. 3 

The five most radical right Republican justices on the U.S. Supreme Court are shown above, with the sixth Republican, Chief Justice John Roberts, omitted in this view.

The five most radical right Republican justices on the Supreme Court are shown above, with the sixth Republican, Chief Justice John Roberts, omitted in this photo array.

ny times logoNew York Times, Opinion: The Supreme Court Gaslights Its Way to the End of Roe, Linda Greenhouse (shown at right on the cover of her memoir, "Just linda greenhouse cover just a journalista Journalist"),, Dec. 3, 2021. There are many reasons for dismay over the Supreme Court argument in the Mississippi abortion case, but it was the nonstop gaslighting that really got to me.

First there was Justice Clarence Thomas, pretending by his questions actually to be interested in how the Constitution might be interpreted to provide for the right to abortion, a right he has denounced and schemed to overturn since professing to the Senate Judiciary Committee 30 years ago that he never even thought about the matter.

Then there was Chief Justice John Roberts, mischaracterizing an internal memo that Justice Harry Blackmun wrote to his colleagues as the Roe v. Wade majority was discussing how best to structure the opinion Justice Blackmun was working on. The chief justice was trying to delegitimize the place of fetal viability in the court’s abortion jurisprudence, where for nearly 50 years, viability has been the unbreached firewall protecting the right of a woman to choose to terminate a pregnancy.

And then there was Justice Brett Kavanaugh, who rattled off a list of “the most consequential cases in this court’s history” that resulted from overruling prior decisions.

It was Justice Sonia Sotomayor who asked the uncomfortable question. “Will this institution survive the stench that this creates in the public perception that the Constitution and its reading are just political acts?” she demanded of Scott Stewart, a former law clerk to Justice Thomas who argued for Mississippi as the state’s solicitor general. Listening to the live-streamed argument, I first heard “political acts” as “political hacks,” I suppose because still in my mind were Justice Barrett’s words when she spoke in mid-September at a center in Louisville, Ky., named for her Senate confirmation mastermind, Senator Mitch McConnell. “My goal today is to convince you that the court is not comprised of a bunch of partisan hacks,” she said then.

Last month, the court heard arguments in a case that challenges New York’s strict requirement for a license to carry a concealed weapon. Most states have looser restrictions. New York, through its legislative process, is in a minority.

Will Justice Kavanaugh and those of his colleagues who glorify a recently manufactured version of the Second Amendment allow New York City to keep going its own way on gun safety in the name of “letting the people decide”? That’s about as likely as the chance that those very same justices will decide to keep the right to abortion on the books. In both cases, we know what they’re going to do. The only mystery is how they will explain it.

Linda Greenhouse, the winner of the 1998 Pulitzer Prize, writes on alternate Thursdays about the Supreme Court and the law. She reported on the Supreme Court for The Times from 1978 to 2008, and is the author of the forthcoming "Justice on the Brink: The Death of Ruth Bader Ginsburg, the Rise of Amy Coney Barrett, and Twelve Months That Transformed the Supreme Court."

washington post logoWashington Post, Sidney Powell, L. Lin Wood among attorneys ordered to pay $180,000 over Michigan ‘Kraken’ suit, Rosalind S. Helderman, Dec. 3, 2021 (print ed.). It's the latest in a series of rulings seeking to hold lawyers accountable for trying to use the courts to overturn a democratic election.

A federal judge in Michigan has ordered a group of lawyers who brought a failed lawsuit challenging the 2020 election results to pay more than $180,000 in legal fees to the state of Michigan and the city of Detroit, the latest in a series of rulings from federal judges seeking to hold lawyers accountable for trying to use the courts to overturn a democratic election.

linda parkerU.S. District Judge Linda V. Parker, shown in a file photo, had already ordered that the group of nine lawyers — including Sidney Powell and L. Lin Wood, both allies to former president Donald Trump — be disciplined for their role in the suit, which in August she called “a historic and profound abuse of the judicial process.”

But the group had been balking at the fees requested by their opponents in the suit, particularly the city of Detroit, which had reported that it spent $182,192 defending the case.

On Thursday, Parker said those fees were for the most part reasonable. She ordered the lawyers to pay nearly $153,000 to the city and another $22,000 to the state to pay their costs in the case.

She said the hefty fee was an “appropriate sanction … needed to deter Plaintiffs’ counsel and others from engaging in similar misconduct in the future.” She also wrote that she believed that the attorneys have the ability to pay the fees, particularly given that they have been soliciting donations from lin wood gage skidmoremembers of the public to fund lawsuits like the one they brought in Michigan.

Neither Powell or Wood (shown at left in a Gage Skidmore photo) immediately responded to a request for comment Thursday. Federal prosecutors have also sought records from Powell’s fundraising groups as part of a criminal probe.

Prosecutors demanded records of Sidney Powell’s fundraising groups as part of criminal probe

David Fink, a lawyer for the city of Detroit, said: “These lawyers abused the federal courts to advance the big lie. They must pay a price for their misconduct, and this ruling is a good start.”

Dec. 2

Abortion Case Reactions

 supreme court Custom

washington post logoWashington Post, Opinion: The question is not whether ‘Roe v. Wade’ is overturned — but how, Ruth Marcus, right, Dec. 2, 2021 (print ed.). “For today, at ruth marcusleast, the law of abortion stands undisturbed,” Justice Harry A. Blackmun wrote in 1989, dissenting in a case that cut back on constitutional protection for abortion rights. “For today, the women of this Nation still retain the liberty to control their destinies. But the signs are evident and very ominous, and a chill wind blows.”

On Wednesday, that icy wind whistled through a nearly empty Supreme Court chamber as justices considered whether — or, to be more precise, how — to abandon the Roe v. Wade precedent that Blackmun helped write into law almost 50 years ago.

The oral argument made it all too clear: Constitutional protection for a woman’s right to choose whether to end an unwanted pregnancy is about to be dramatically curtailed if not eliminated altogether.

The advocates trying to forestall that eventuality, Julie Rikelman of the Center for Reproductive Rights and U.S. Solicitor General Elizabeth B. Prelogar, did an excellent job, and yet the argument in Dobbs v. Jackson Women’s Health could hardly have gone worse.

Ruth Marcus: A newly radicalized Supreme Court is poised to reshape the nation

Three justices — Clarence Thomas, Samuel A. Alito Jr. and Neil M. Gorsuch — are all but guaranteed votes to overrule both Roe and Planned Parenthood of Southeastern Pennsylvania v. Casey, the 1992 case in which a court that had seemed poised to take the plunge of overruling instead stepped back and reaffirmed Roe.

That leaves two questions: Are two or perhaps three other justices prepared to join them? If not, how much damage will be done by a decision that upholds the Mississippi law, which prohibits most abortions after 15 weeks, but doesn’t explicitly overrule Roe.

The answers appear to be “perhaps” and “significant.”

The three justices who occupy what passes for the middle on this court each offered separate grounds for worry.

washington post logoWashington Post, Potential loss of Roe v. Wade as a legal standard shakes political landscape, Sean Sullivan and Seung Min Kim, Dec. 2, 2021 (print ed.). Democrats immediately vowed to make abortion rights a central focus in next year’s midterm elections, where their prospects have been viewed as dim, while many Republicans sought to keep the focus on inflation and other problems facing President Biden.

ny times logoNew York Times, Opinion: What We Learned From the Supreme Court’s Abortion Arguments, Charles M. Blow, Ross Douthat, Michelle Goldberg and Lulu Garcia-Navarro, Dec. 2, 2021 (print ed.). The oral arguments before the Supreme Court in Dobbs v. Jackson Women’s Health Organization, which involves a Mississippi law that bans nearly all abortions after 15 weeks of pregnancy, may give an indication of the future for access to the procedure, and for national politics.

The Times columnists and a Times Opinion podcast host gathered to discuss what they heard at the court on Wednesday, where they see it heading and how they, and the country, will continue to wrestle with the issue of abortion.

michelle goldberg thumbMichelle Goldberg, right: I don’t think there’s any doubt that this court is going to uphold the Mississippi law. To me the only question is whether it overturns Roe v. Wade altogether, or comes up with some new standard to replace viability, an outcome Chief Justice John Roberts seemed to be groping toward. My guess is it overturns. What do you all think?

Lulu Garcia-Navarro: I agree, all the justices showed their cards and their thinking on this issue. What fascinated me was how plainly the liberal justices — mainly Stephen Breyer and Sonia Sotomayor — spoke about the politics of this issue. Justice Sotomayor’s comment about whether the court can “survive the stench” of overturning Roe was almost a direct appeal to Chief Justice Roberts, who has been vocally worried ross douthatabout how the court is viewed since the conservative majority has taken over.

Ross Douthat, right: Yes, it’s a peculiar situation where everybody assumes (rightly, in my view) that none of the conservative justices think that either Roe or Casey was rightly decided, so the question then becomes to what extent do they act like politicians — something Roberts especially is always ready to do! — as opposed to just following their legal convictions.

dan rather bookSteady, Opinon: The End of Roe? Dan Rather (author and former CBS Evening News Managing Editor and Anchor, shown above in a file photo), Dec. 1, 2021, published Dec. 2. Today was not the ultimate judgment day; that will come with a formal decision. And we have to be prepared for a surprise. But if events transpire as most legal experts suspect they will, what happened in Washington on December 1, 2021, will be marked in American history.

The issue of abortion is one on which fair minded people, honest to their own beliefs and moral codes, can disagree. But today was not about personal choice. It was about the law of the land that will make no exceptions other than those carved out by the states. And if the history of a time before legal abortions is any guide, and there is no reason to suspect otherwise, today will beget many personal tragedies, ruined lives, hardship, and despair.

What transpired in the marbled halls of the Supreme Court was not genteel, even if it was wrapped in the ceremony and vocabulary of polite legal discourse. It was a traumatic reckoning. First and foremost for the rights of women to have control of their bodies and their lives. And secondly for a nation of laws, where precedent is supposed to matter. Instead, we saw a fixed legal right, enshrined in jurisprudence for half a century, likely shredded by a handful of unelected and unaccountable arbiters of what our nation of more than 300 million souls can and cannot do.

Was it a surprise? Not really to anyone who has followed the Court. But somehow the shock of what this will mean was not tempered by its inevitability.

For decades Republicans have railed against abortion to fan the ire and passions of their most reliable voters. They have played footsie with gutting Roe, with more lip service than action. It took the shameless cynicism of Mitch McConnell and the gleeful transactionality of President Trump to secure a majority on the Court that would boldly go so far.

There are many subplots to this drama. We can talk about how a majority of the justices on the reactionary side of the ledger were appointed by presidents who lost the popular vote, and what that means for the health of our democracy.

We can talk about how many of the justices were less than truthful, or outright lied, in their confirmation heariings when they acted like they would judge an abortion case on precedent and the law instead of having their minds made up. We can talk about the politics of the court and whether Democratic voters slept-walked on the issue for too long. But if this were a Hollywood movie, all that would be in the preamble. A new story begins now.

Many women of all ages in America have come to take safe, legal abortions as a given. Although we must note that many women also are vocal opponents of legal abortions. What happens now? What happens when the inevitable stories emerge of victims of rape and incest being forced to carry a pregnancy to term? How many will die from illegal abortion attempts? As someone who is old enough to clearly remember the world before Roe, I don't think America, or the justices on the Court, or the political establishment, knows what is going to come.

We will see abortion effectively outlawed in many states, and not only deep red ones. Gerrymandered state governments in purple states will jump in as well. Will this provoke a response, in the streets or at the ballot box? Will there be pressure on businesses who want ot recruit workers in states where abortion is illegal? Or will America adjust to this new reality in ways that do not change the political stakes?

Ultimately, while it is important to consider the politics, my mind tonight is with those who will likely suffer, now and into the future. We now likely have a situation where the government will come between women, their doctors, and their body. Those who consider terminating pregnancies often face the most difficult decisions of their lives. They are often on the most vulnerable fringes of society, contending with violence, trauma, and economic insecurity.

Others face grave medical problems. Others know they would be unable to provide a good life for their baby. Others know what a baby will mean for their own lives. Ultimately the reasons shouldn’t matter. There is no moral relativism. I believe, no matter one’s personal beliefs about abortion, this is a right that women should have.

If Roe is gutted and not replaced by new laws, a wave of desperation will engulf the nation. Countless women will feel the loneliness of fear, the disorientation of anxiety, and the despair that comes with pain and loss. They will cry tears and shake with anger. They will weigh the risks of traveling to states where abortion is legal, of finding other ways to end their pregnancies. They will be forced to carry life to term, knowing that the same political forces who insisted they do so will do little to help care for that life once it is born.

Tonight I understand the anger. I understand the fear. My primary emotion is one of sadness. We are stumbling towards a future that is unmoored from our past.

washington post logoWashington Post, Editorial: Gutting ‘Roe’ would devastate millions of Americans — and the court itself, Editorial Board, Dec. 2, 2021 (print ed.). The Supreme Court heard arguments Wednesday in an abortion case that could mark a perilous turning point for American society.

Judging by the justices’ tone, the question is not whether they will eviscerate the 1973 Roe v. Wade decision and the subsequent Planned Parenthood v. Casey ruling in 1992 but how drastically they will curtail these core precedents.

The justices should have no illusions: A partial or total reversal of Roe would devastate not only the Americans who rely on the abortion rights that have been theirs for nearly 50 years, but also the court itself, undermining its legitimacy.

washington post logoWashington Post, Editorial: Gutting ‘Roe’ would devastate millions of Americans — and the court itself, Editorial Board, Dec. 2, 2021 (print ed.). The Supreme Court heard arguments Wednesday in an abortion case that could mark a perilous turning point for American society.

Judging by the justices’ tone, the question is not whether they will eviscerate the 1973 Roe v. Wade decision and the subsequent Planned Parenthood v. Casey ruling in 1992 but how drastically they will curtail these core precedents.

The justices should have no illusions: A partial or total reversal of Roe would devastate not only the Americans who rely on the abortion rights that have been theirs for nearly 50 years, but also the court itself, undermining its legitimacy.

Dec. 1

ny times logoNew York Times, Analysis: Supreme Court Seems Poised to Uphold Mississippi’s Abortion Law, Adam Liptak, right, Dec. 1, 2021. After two hours of adam liptaksometimes tense exchanges in one of the most significant abortion cases in years, the court appeared poised to uphold the state law, which bans abortions after 15 weeks of pregnancy.

supreme court amazon imagesThe Supreme Court seemed poised on Wednesday to uphold a Mississippi law that bans abortions after 15 weeks of pregnancy, based on sometimes tense and heated questioning at a momentous argument in the most important abortion case in decades.

Such a ruling would be flatly at odds with what the court has said was the central holding of Roe v. Wade, the 1973 decision that established a constitutional right to abortion and prohibited states from banning the procedure before fetal viability, or around 23 weeks.

But the court’s six-member conservative majority seemed divided about whether to stop at 15 weeks, for now at least, or whether to overrule Roe entirely, allowing states to ban abortions at any time or entirely.

Chief Justice John G. Roberts Jr. was the leading voice on the right for a narrow decision. “The thing that is at issue before us today is 15 weeks,” he said.

He repeatedly questioned whether the viability line was crucial, saying that Justice Harry A. Blackmun, the author of the majority opinion in Roe, had called the line arbitrary in his private papers. Chief Justice Roberts added that much of the rest of the world has similar limits.

Julie Rikelman, a lawyer for the abortion clinic challenging the Mississippi law, disputed that, saying that limits in many other countries are subject to significant exceptions.

Other conservative justices indicated that they were not interested in the chief justice’s intermediate approach. Justice Samuel A. Alito Jr. said “the only real options we have” are to reaffirm Roe or to overrule it.

Assuming the three most conservative members of the court — Justices Alito, Clarence Thomas and Neil M. Gorsuch — are prepared to overrule Roe entirely, Chief Justice Roberts would need to attract at least two votes for a narrower opinion, one upholding the Mississippi law but not overruling Roe in so many words, to be controlling. But the most likely candidates, Justices Brett M. Kavanaugh and Amy Coney Barrett, said little to suggest that they were inclined toward that narrower approach.

The court’s three liberal members — Justices Stephen G. Breyer, Elena Kagan and Sonia Sotomayor — were adamant that Roe should stand.

  • New York Times, Mississippi says progress in the workplace makes abortion rights unnecessary. This is what the research says.

 

supreme court headshots 2019

washington post logoWashington Post, Live Reports: Justices to hear arguments over Miss. abortion law challenging 'Roe v. Wade,' Ann E. Marimow and Amy B Wang, Dec. 1, 2021. The Supreme Court on Wednesday is taking up the most serious challenge in decades to the constitutional right to abortion established in Roe v. Wade in 1973. The Mississippi law at issue bans most abortions after 15 weeks into pregnancy and has not taken effect because lower courts said it violated Roe and the subsequent decision in Planned Parenthood v. Casey, which said states may not ban abortion before viability, usually between 22 and 24 weeks.

Mississippi has only one abortion clinic in the state, and one of its doctors sued, saying the ban imposes an undue burden on the right to abortion. Mississippi told the court that allowing the 2018 law to stand would “scuttle a half-century of precedent.” The state says the Constitution does not protect a right to abortion and that the court’s precedents are “grievously wrong, unworkable, damaging and outmoded.”

Here’s what to know:

  • In accepting the case Dobbs v. Jackson Women’s Health Organization, the court said it will decide whether all prohibitions on abortion before viability are unconstitutional. Abortion opponents believe this is their best chance in decades.
  • The justices could overturn Roe or find another way to uphold the Mississippi law. The state suggested the court could hold that the law does not impose an “undue burden” on a significant number of women because the Mississippi clinic performs abortions only up to 16 weeks.
  • Past court rulings, public appearances and other public comments by the nine justices give insight into their thinking on abortion and court precedents.
  • Mississippi is represented by recently hired Solicitor General Scott G. Stewart, a former law clerk to Justice Clarence Thomas. The abortion provider is represented by attorney Julie Rikelman, litigation director for the Center for Reproductive Rights. U.S. Solicitor General Elizabeth B. Prelogar will also argue on behalf of the abortion provider.

 Recent Headlines

 

November

Nov. 28

 supreme court resized 2021

ny times logoNew York Times, Editorial: To Protect Abortion Rights, Turn to Elections, Editorial Board, Nov. 28, 2021 (print ed.). Will the Supreme Court overturn Roe v. Wade? As the justices prepare to hear oral arguments on Dec. 1 in the biggest abortion case in decades, that is the understandable question on everyone’s mind. It’s also a misleading one.

Yes, Roe could possibly meet its demise when the court decides Dobbs v. Jackson Women’s Health Organization, which involves a Mississippi law that bans nearly all abortions after 15 weeks of pregnancy. After all, outlawing abortion in America has been an animating object of the conservative movement for nearly half a century. But the Supreme Court never had a reliably anti-choice majority to pull it off. Now, largely thanks to the engineering of Senator Mitch McConnell, the court is stacked with a supermajority of conservative justices, several of whom surely must be tempted to finish the job they were put on the court to do.

The fact that the Dobbs case made it to the court in the first place is reason enough for alarm: Many states have passed abortion bans similar to Mississippi’s that have been struck down because they are obviously unconstitutional in light of Roe v. Wade and subsequent cases. That the Mississippi law hasn’t met the same fate strongly suggests a confidence among conservative justices that they finally have the votes to end Roe for good. A similar confidence — not to mention a blithe indifference to women’s civil liberties — was reflected in the Supreme Court’s recent refusal to summarily strike down a new Texas law that effectively bans most abortions in the state.

As the justices are well aware, however, categorically eliminating a constitutional right that tens of millions of women have counted on, and which, according to a 2019 poll, more than three-quarters of Americans support upholding in some form, would invite an enormous social and political backlash that could end up doing damage to the very causes they hold dear.

The more likely outcome — for this term, at least — is not an outright reversal of Roe but a rerun of a show Americans have been watching for the past 30 years: a ruling that preserves the right to abortion in name while making the exercise of that right ever more difficult, if not impossible, in practice.

That’s why the most pressing issue in the Dobbs case is not the legal response of the court but the political response of a consistent majority of Americans who agree that a woman has the right to control what happens inside her own body.

So what happens next? The first step is acceptance — specifically, accepting that such a conservative Supreme Court is no longer going to protect reproductive freedom but will instead undermine it. The next step is to shift the focus away from the courts and onto electoral politics — by translating the American public’s consistent majority support for abortion rights into electoral victories at all levels of government, but especially in the states, where nearly all laws around reproductive rights get made.

This moment is also an opportunity to recast the fight over abortion and reproductive rights generally. It should be centered on women’s equality and liberty, not on their privacy, the right on which the Roe decision was grounded. The problem with that rationale, which was conjured by a court consisting of nine older men, is not only that it does not appear explicitly in the Constitution, but also that it carries insinuations of secrecy and even shame. That’s a rickety foundation for such a fundamental right. It is far harder to refute calls for equality and liberty, as evidenced by the struggles and successes of the L.G.B.T.Q. movement.

washington post logoWashington Post, For Clarence Thomas, avowed critic of Roe v. Wade, Mississippi abortion case is a moment long awaited, Robert Barnes, Nov. 28, 2021 (print ed.). Judge Clarence Thomas said at his Supreme Court confirmation hearings in 1991 that he hadn’t given that much thought to whether Roe v. Wade was correctly decided.

But Justice Clarence Thomas, below left, took only months to reach a conclusion: the landmark 1973 ruling guaranteeing a woman’s right to abortion should be discarded.

clarence thomas official w“The power of a woman to abort her unborn child” is not a liberty protected by the Constitution, said a dissenting opinion from four members of the court, including Thomas.

The Supreme Court was invited to overturn Roe. A surprising majority didn’t

Thus began three decades of official Thomas opposition to the notion of a constitutionally protected right to abortion.

It will reach its zenith Wednesday, when Thomas and the most conservative Supreme Court in decades will consider a restrictive Mississippi abortion law that opponents and advocates alike agree is almost impossible to square with Roe and the precedents that have flowed from it.

The review coincides as well with something of a high-water mark for the 73-year-old Thomas, now the court’s longest-serving member. He sits on a court with more justices who think like him than at any other point in his career.

What the Supreme Court justices have said about abortion and Roe v. Wade

These days, his colleagues offer unprecedented deference. After years of not asking questions at oral arguments, Thomas this term has asked the first question in every hearing. That is because no one jumps in until he has finished his low-key inquiries.

supreme court headshots 2019

washington post logoWashington Post, Opinion: The Rule of Six: A newly radicalized Supreme Court is poised to reshape the nation, Ruth Marcus, right, Nov. 28, 2021. Supreme ruth marcusCourt Justice William J. Brennan Jr., the Eisenhower appointee who became the liberal lion of the Warren Court, had a tradition for introducing every new batch of law clerks to the realities of the institution.

“Brennan liked to greet his new clerks each fall by asking them what they thought was the most important thing they needed to know as they began their work in his chambers,” Seth Stern and Stephen Wermiel write in Liberal Champion, their Brennan biography. “The … stumped novices would watch quizzically as Brennan held up five fingers. Brennan then explained that with five votes, you could accomplish anything.”

Brennan, master vote-counter and vote-cajoler, was right — but there is an important corollary to his famous Rule of Five, one powerfully at work in the current Supreme Court. That is the Rule of Six. A five-justice majority is inherently fragile. It necessitates compromise and discourages overreach. Five justices tend to proceed with baby steps.

A six-justice majority is a different animal. A six-justice majority, such as the one now firmly in control, is the judicial equivalent of the monarchy’s “heir and a spare.” The pathways to victory are enlarged. The overall impact is far greater than the single-digit difference suggests.

On the current court, each conservative justice enjoys the prospect of being able to corral four colleagues, if not all five, in support of his or her beliefs, point of view or pet projects, whether that is outlawing affirmative action, ending constitutional protection for abortion, exalting religious liberty over all other rights or restraining the power of government agencies.

A six-justice majority is emboldened rather than hesitant; so, too, are the conservative advocates who appear before it. Such a court doesn’t need to trim its sails, hedge its language, or abide by legal niceties if it seems more convenient to dispense with them.

A conservative justice wary of providing a fifth vote for a controversial position can take comfort in the thought that now there are six; there is strength in that number. Meantime, a court with a six-justice majority is one in which the justices on the other side of the ideological spectrum are effectively consigned to a perpetual minority. They craft dissents that may serve as rebukes for the ages but do little to achieve change in the present. The most they can manage is damage control, and that only rarely.

Nov. 17

 

norman 3X butler thomas 15X johnson ap

The exoneration of the two men, Muhammad Aziz, left, formerly known as Norman 3X Butler) and the late Khalil Islam (formerly known as Thomas 15X Johnson), represents 'a remarkable acknowledgment of grave errors made in a case of towering importance,' the New York Times reported. Aziz and the estate of Islam were both reprsented by the Innocence Project and attorney David Shanies. Photos by Associated Press.

ny times logoNew York Times, 2 Men Convicted of Killing Malcolm X Will Be Exonerated After 55 Years, Ashley Southall and Jonah E. Bromwich, Nov. 17, 2021. Two of the men found guilty of the assassination of Malcolm X are expected to have their convictions thrown out on Thursday, the Manhattan district attorney and lawyers for the two men said, rewriting the official history of one of the most notorious murders of the civil rights era.

The exoneration of the two men, Muhammad A. Aziz and Khalil Islam, represents a remarkable acknowledgment of grave errors made in a case of towering importance: the 1965 murder of one of America’s most influential Black leaders in the fight against racism.

malcolm x stamp black heritageA 22-month investigation conducted jointly by the Manhattan district attorney’s office and lawyers for the two men found that prosecutors and two of the nation’s premier law enforcement agencies — the Federal Bureau of Investigation and the New York Police Department — had withheld key evidence that, had it been turned over, would likely have led to the men’s acquittal.

The two men, known at the time of the killing as Norman 3X Butler and Thomas 15X Johnson, spent decades in prison for the murder, which took place on Feb. 21, 1965, when three men opened fire inside a crowded ballroom at the Audubon Ballroom in Manhattan as Malcolm X was starting to speak.

But the case against them was questionable from the outset, and in the decades since, historians and hobbyists have raised doubts about the official story.

The review, which was undertaken as an explosive documentary about the assassination and a new biography renewed interest in the case, did not identify who prosecutors now believe really killed Malcolm X, and those who were previously implicated but never arrested are dead.

Nor did it uncover a police or government conspiracy to murder him. It also left unanswered questions about how and why the police and the federal government failed to prevent the assassination.

But the acknowledgment by Cyrus R. Vance Jr., the Manhattan district attorney who is among the nation’s most prominent local prosecutors, recasts one of the most painful moments in modern American history. New York Times excerpt continued below.

ny times logoNew York Times, Live Updates: Reactions to the Malcolm X Case, Staff Reports, Nov. 17, 2021. A timeline of major events in the case since Malcolm X’s death:

  • This is who scholars believe really killed Malcolm X.
  • What we know about Malcolm X’s assassination.
  • A new witness supports the original alibi of one of the wrongfully convicted men.
  • Al Sharpton calls exonerations in Malcolm X case a ‘strange and perverted irony.’

Future of Freedom Foundation, Opinion: Why Doesn’t the CIA Just Destroy Its Secret JFK Records? Jacob G. Hornberger, right, Nov. 17, 2021. With President jacob hornberger newBiden’s order granting the CIA’s request for continued secrecy of its 60-year-old records retailing to the JFK assassination — on grounds of protecting “national security” — the question naturally arises: Why doesn’t the the CIA simply sneak into the National Archives and just destroy its records and be done with it?

By now, it should be obvious to everyone, including the CIA’s assets in the mainstream press, that the CIA’s remaining secret records contain incriminating evidence pointing toward a national-security state regime-change operation against President Kennedy, just as Oliver Stone posited in his movie JFK in 1991. The notion that the release of 60-year-old records will endanger “national security,” no matter what definition is placed on that meaningless, nebulous term, is patently ludicrous on its face.

future of freedom foundation logo squareMind you, I’m not advocating that the CIA do this, of course. I believe those long-secret records should have been disclosed to the American people six decades ago. I’m just asking a question and wondering why the CIA doesn’t do what it has done in the past to prevent the American people from seeing its dark-side activities.

Yes, it know that doing this would be violating the JFK Records Act of 1992. But we all know that nothing would happen to the CIA if it broke the law and destroyed those records. Nobody would get indicted. No one would even lose his job. No one would even get a slap on the wrist. After all, this is the CIA we are talking about.

When the CIA intentionally destroyed its videotapes of its brutal torture sessions with suspected terrorists, nothing happened to the CIA. When the CIA intentionally destroyed its MKULTRA records of its drug experiments on unsuspecting American citizens, again nothing happened.

Moreover, consider what the Secret Service did after the JFK Records Act was enacted. That sordid story is recounted in Douglas Horne’s watershed secret service logo5-volume book Inside the Assassination Records Review Board.

The JFK Records Act mandated that all federal agencies disclose their assassination-related records to the public. To enforce the law, Congress called into existence The Assassination Records Review Board.

After the law was enacted, a letter was sent to the Secret Service and other federal agencies specifically directing them to not destroy any assassination-related records. The Secret Service received the letter and understood the directive.

Nonetheless, the Secret Service intentionally destroyed critically important secret information relating to the assassination.

CIA LogoNo one got indicted for what was obviously a knowing, intentional, and deliberate violation of the law. No one got cited for contempt. No one got fired. The Secret Service got away with it. The American people never got to see those secret assassination-related records.

The Secret Service’s intentional destruction of those records looked especially bad in the context of the Secret Service’s actions prior to and immediately after the assassination.

  1. First, it didn’t seal the windows or the roof of the Texas School Book Depository or other high-rise buildings overlooking Dealey Plaza, where President Kennedy was assassinated,
  2. Second, it prevented agents from stationing themselves on the side and back of the presidential limousine during the motorcade.
  3. Third, it ensured that the motorcycle cops stayed behind the limousine rather than on its sides.
  4. Fourth, the custom was to have the official press corps car in front of the presidential limousine so that the professional photographers could easily take pictures and film during the motorcade. This time, the Secret Service placed the press corps car several cars behind the limousine, which ensured that there were few professional photographers capturing the assassination in photographs or film.
  5. Fifth, when the first shot rang out, the Secret Service agent who was driving the presidential limousine — William Greer — failed to floor the accelerator and immediately escape from the area before a second shot could hit the president.
  6. Sixth, the Secret Service agent in the passenger seat — Roy Kellerman — sat there like a bump on the log after the first shot rang out, even though his duty was to immediately jump in the back seat and cover the president with his own body. That’s what Secret Service agent Clint Hill was trying to do when he ran from his car toward the president’s car.
  7. Seventh, as I detail in my book The Kennedy Autopsy, Kellerman was actually the person who first launched the scheme for a fraudulent autopsy that was conducted later that day at the military’s medical facility at Bethesda National Naval Medical Facility. When Dr. Earl Rose, the Dallas County Medical Examiner, announced his intention to conduct an autopsy on the president’s body in accordance with Texas state criminal law, Kellerman, who was carrying a submachine gun, declared that no such autopsy would be permitted. Stating that he was operating on orders. Kellerman and his team of Secret Service agents, who were themselves brandishing their own guns, forced their way out of Parkland with the president’s body in a very heavy ornate casket. Kellerman and his team then delivered the body to new President Lyndon Johnson. Later that day, Johnson delivered the president’s body to the military, which then conducted a top-secret, classified fraudulent autopsy on Kennedy’s body.

Kennedy’s body was secretly sneaked into the Bethesda morgue in a cheap shipping casket at 6:35 p.m., which was almost 1 1/2 hours before the official entry time of 8 p.m. As I also detailed in The Kennedy Autopsy, Secret Service agents Kellerman and Greer participated in the secret reintroduction of Kennedy’s body into the expensive, heavy ornate Dallas casket, which was then brought into the morgue at the official entry time of 8 p.m.

What was in those top-secret Secret Service records that the Secret Service intentionally destroyed after being specifically told not to destroy them?

I don’t know, but my hunch is that there was a good reason why the Secret Service felt the need to destroy them.

There is obviously a good reason why the CIA doesn’t want its 60-year-old records disclosed to the American people, and I have no doubts that it has nothing to do with protecting “national security.” Which causes me to wonder why the CIA doesn’t do what the Secret Service did and just be done with the entire controversy.

Nov. 16

washington post logoWashington Post, Americans broadly support Supreme Court upholding Roe v. Wade, poll finds, Scott Clement, William Bishop and Robert Barnes, Nov. 16, 2021. Americans say by a roughly 2-to-1 margin that the court should uphold its landmark decision, and by a similar margin the public opposes a Texas law banning most abortions after six weeks of pregnancy, according to a Post-ABC News poll.

The lopsided support for maintaining abortion rights protections comes as the court considers cases challenging its long-term precedents, including Dec. 1 arguments over a Mississippi law banning abortions after 15 weeks of pregnancy.

The Post-ABC poll finds 27 percent of Americans say the court should overturn Roe, while 60 percent say it should be upheld, attitudes that are consistent in polls dating to 2005. More broadly, three-quarters of Americans say abortion access should be left to women and their doctors, while 20 percent say they should be regulated by law.

Nov. 15

 

 

steve bannon rally source unstated

washington post logoWashington Post, Stephen Bannon surrenders after he was indicted on charges of contempt of Congress, Spencer S. Hsu and Tom Jackman, Nov. 15, 2021. Stephen K. Bannon, the former Trump White House adviser who was indicted last week for defying a congressional subpoena, surrendered to federal authorities Monday morning and was scheduled to make his first court appearance later Monday afternoon.

Bannon, 67 (shown above in a file photo), walked through a group of photographers outside the FBI field office in downtown Washington. Bannon told the news media, “I don’t want anybody to take their eye off the ball for what we do every day. . .We’re taking down the Biden regime.”

Bannon is expected to appear before U.S. Magistrate Judge Robin M. Meriweather for his arraignment on two counts of contempt of Congress.

A federal grand jury indicted Bannon on Friday after he ignored a Sept. 23 subpoena to testify and provide documents to the House committee investigating the Jan. 6 attack on the U.S. Capitol.

The committee wants to question Bannon about activities that occurred at the Willard Hotel the night before the riot, when pro-Trump activists sought to convince Republican lawmakers to block certification of the election. The committee’s subpoena also noted that Bannon was quoted predicting “hell is going to break loose” on Jan. 6.

The panel has subpoenaed at least 20 Trump aides, including former White House chief of staff Mark Meadows. Meadows did not appear Friday for a scheduled deposition, officials said. The charges against Bannon are misdemeanors, punishable by up to a year in jail and a fine of up to $1,000.

 

steve bannon billionaire guo wengui

Wayne Madsen Report,  Investigative Commentary: Time to extradite Bannon's patron to China, Wayne Madsen, Nov. 15, 2021. The method to bring down a massive far-right conspiracy to overthrow the government is to, as the Department of Justice did during Iran-contra, and, to a lesser extent, for Watergate is to "follow the money."

wayne madsen may 29 2015 cropped SmallToday, as former Trump White House chief strategist Steve Bannon is arraigned in federal court in Washington for two criminal counts of contempt of Congress for refusing to appear before the January 6th special House committee and turn over requested documents, it is an important reminder that Bannon's financial patron is Guo Wengui, a fugitive billionaire Chinese national who resides in the United States. Bannon and Guo are shown above in a file photo.

wayne madesen report logoGuo (shown above in a file photo with Bannon) was granted political asylum by the Trump administration in 2017 as a Priority 1 asylee after Trump was informed that Guo had laid out the required $200,000 in initiation fees and $14,000 in annual dues to become a member of Trump's Mar-a-Lago billionaires' beach club in Palm Beach, Florida. Guo is currently the subject of an Interpol Red Notice arrest warrant issued in April 2017 by China.

Guo is accused of fraud, rape, bribery, money laundering, kidnapping, and other crimes committed in China and abroad before he was granted political asylum in the United States.

Guo has the distinction of being involved in simultaneous attempts to overthrow two governments, that of his asylum-grantor, the United States, and that of China. Guo maintains a Chinese government-in-exile in Manhattan, which he calls the New Federal State of China, which has its own flag and Himalaya Coin cryptocurrency, issues its own "Himalaya" passport, and claims to represent a post-Communist state in China.

Guo's government-in-exile is nothing more than a fraudulent micronation involved in dubious activity and is not much different than the Dominion of Melchizedek and Kingdom of EnenKio, which were the subjects of international criminal investigations for banking and securities fraud.

Nov. 13

washington post logoWashington Post, Editorial: Fresh reporting on Jan. 6 is a powerful rebuke to those minimizing events of that terrible day, Editorial Board, Nov. 13, 2021 (print ed.). One hundred and eighty-seven minutes. That is the length of time between when President Donald Trump called on his followers to march to the Capitol on Jan. 6, as Congress was convening to certify the results of the presidential election he had lost, and when he belatedly and begrudgingly released a video telling them to go home.

Those harrowing 187 minutes — during which the nation’s commander in chief sat back and watched television coverage of his supporters attacking the Capitol, even as his advisers, allies, elder daughter and besieged lawmakers begged him to intervene — were chronicled with troubling new detail in a Post investigation. The fresh reporting is a powerful rebuke to those who have sought to minimize, distort or forget the events of that terrible day.

Thanks to the work of a team of more than 75 Post journalists who interviewed more than 230 people and examined thousands of pages of court documents and internal law enforcement reports, along with hundred of videos, photographs and audio recordings, we now have the fullest understanding to date of what was going on not just on Jan. 6 but also in the days leading up to the assault and its aftermath.

Among the findings: A cascade of warnings — including explicit threats targeting Congress — was ignored by law enforcement. Some Pentagon leaders feared Mr. Trump might misuse the National Guard to remain in power and placed guardrails on deployment that may have hampered response to the insurrection. Efforts to strong-arm Vice President Mike Pence into using his ceremonial role to reject the results of the presidential election continued even after the assault on the Capitol when the shaken Congress reconvened.

New details about the pressure brought to bear on Mr. Pence make his steadfastness all the more admirable. Unfortunately, the former vice president has tarnished the record of his Jan. 6 courage with subsequent toadying to Mr. Trump, including criticizing the media for what he called overplaying the significance of Jan. 6. Mr. Pence is not alone in bending under Mr. Trump’s tightening grip on the Republican Party; as was reported in the third part of the series, nearly a third of the 390 Republicans around the country who have expressed interest in running for statewide office this cycle have supported a partisan audit of the 2020 vote, played down Jan. 6 or directly questioned the victory of President Biden.

Those continuing efforts to undermine elections and the peaceful transfer of power are why The Post’s investigation, albeit rigorous and thorough, must not be the last word. As the Post team itself noted, a number of critical questions remain. How seriously did Mr. Trump or his allies inside the government consider using emergency powers to remain in office? How did rioters know what unsecured windows would give them entry into the Capitol? Who built those gallows on the West Front of the building? And what else did Mr. Trump say or do during those horrific 187 minutes?

The special House committee investigating Jan. 6 has powers that reporters lack. It can compel testimony and subpoena documents to address the still unanswered questions — and assure that nothing like Jan. 6 will happen again.

washington post logoWashington Post, Opinion: Sorry, Mr. Trump: Executive privilege is President Biden’s to assert, Ruth Marcus, Nov. 13, 2021 (print ed.). Whose privilege is it, anyway?

That is, does executive privilege — a president’s ability to shield internal documents and private conversations with top advisers from discovery — belong to the sitting president or the president whose secrets are being sought?

The answer is complicated, but the outcome, in the case of Donald J. Trump v. Bennie G. Thompson (the head of the House Select Committee investigating the Jan. 6 insurrection), should be clear: The views of the incumbent president outweigh the position of his predecessor. The legitimate need for information takes precedence over generalized concerns about chilling internal discussions. Executive privilege is not absolute.

As U.S. District Judge Tanya Chutkan tartly explained in denying former president Donald Trump’s bid to prevent internal White House documents from being turned over to the select committee, “Presidents are not kings, and Plaintiff is not President.” This is the judicial equivalent of a mic drop. Case over.

Not actually, of course. Trump has appealed Chutkan’s ruling. A federal appeals court will hear oral arguments on an accelerated timetable later this month. A trip to the Supreme Court is somewhere between likely and inevitable.

Here’s why Trump should lose:

Executive privilege is mentioned nowhere in the Constitution, but it’s an important component of presidential authority and the separation of powers. The Supreme Court first recognized it in 1974 in U.S. v. Nixon, in which Richard M. Nixon resisted the Watergate special prosecutor’s subpoena for his White House tapes.

The court’s unanimous ruling found a “presumptive privilege for Presidential communications,” noting that “a President and those who assist him must be free to explore alternatives in the process of shaping policies and making decisions, and to do so in a way many would be unwilling to express except privately.”

But this privilege is fundamentally for the good of the public — the country benefits from having an effective president — not the personal protection of the chief executive. So, a president’s “generalized interest in confidentiality” has to yield at times to more pressing needs, which in Nixon’s case meant “the demonstrated, specific need for evidence in a pending criminal trial.”

In the years since, the courts have made clear that this countervailing interest extends, although with lesser force, to congressional investigations as well. At the same time, the Supreme Court ruled, in a 1977 case refereeing a battle over control of Nixon’s papers, that a former president still retains executive privilege, again, not quite as strongly.

kyle rittenhouseny times logoNew York Times, Can Self-Defense Laws Stand Up to a Country Awash in Guns? Shaila Dewan, Nov. 13, 2021. The Kyle Rittenhouse and Ahmaud Arbery cases raise intriguing questions about people who take the law into their own hands and then claim self-defense.

As two closely watched murder trials played out in two different states this past week, juries heard strikingly similar stories: men took up guns in the name of protecting the public, and when they wound up killing unarmed people, they claimed self-defense.

In one case, Kyle Rittenhouse (shown above at center) fatally shot two men and wounded a third in the unrest following a police shooting in Kenosha, Wis. In the other, Ahmaud Arbery, a Black man, was shot after a pursuit by three white men who said they suspected him of a series of break-ins in the neighborhood. In both cases, the defendants claim they were entitled to start shooting because the victims were trying to take their guns.

“In other words, their own decision to carry a gun became a justification to use it, lest it be wrested away from them,” said Eric Ruben, an expert on the Second Amendment at the S.M.U. Dedman School of Law in Dallas.

For legal experts like Mr. Ruben and others, these two cases expose deep fault lines in the legal and moral concept of self-defense, a doctrine that is particularly cherished in America but ill-equipped to handle an era of expanded gun rights, growing political extremism, violent threats and a strong vigilante strain, all in a country where the perception of threat is heavily influenced by race.

“The problem is that with a citizenry armed with guns, we have blurred every line,” wrote Kimberly Kessler Ferzan, a professor of law and philosophy at the University of Pennsylvania, arguing in the Texas Law Review that a potent mix of “stand your ground” provisions and citizen’s arrest statutes have given people license not just to defend themselves but to go after others. “What is defense? What is reasonable? When may one stand one’s ground and when must one retreat? And, when is a citizen entitled to step in as an aggressor in the name of the state?”

The rifts have surfaced in several debates, beginning with whether openly displayed guns make the bearers feel safer at the expense of everyone else, whether brandishing a gun constitutes a criminal threat or an act of self-protection, and whether people can benefit from self-defense claims if their own actions contributed to the volatility of a situation.

In Michigan, elected officials clashed over whether militia members accused of plotting to kidnap Gov. Gretchen Whitmer were actually trying to make a citizen’s arrest. In St. Louis, there were arguments over whether white residents who pointed guns at Black Lives Matter protesters were committing assault or defending their homes. (They pleaded guilty to misdemeanor assault and harassment, then were pardoned by the governor.)

Nov. 11

SkyHorse Publishing, Coup in Dallas: The Decisive Investigation into Who Killed JFK, H. P. Albarelli Jr. with foreward by Dick Russell, Publication Date: Nov. 16, 2021 (720 Pages). Publisher's Description:

The CIA, Dallas, and the Hard Details of the JFK Assassination: Coup in Dallas leaves speculation and theory aside to give the hard details of who killed hp albarelli jr cover coupPresident John F. Kennedy and how the assassination plot was carried out. Through exhaustive research and newly translated documents, author H. P. Albarelli uncovers and explains the historical roots of state-sponsored assassination, finding disturbing parallels to the assassination of JFK. Albarelli goes beyond conventional JFK assassination theory to piece together the biographies of the lesser-known but instrumental players in the incident, such as Otto Skorzeny, Pierre Lafitte, James Jesus Angleton, Santo Trafficante, and others.

Albarelli provides shocking detail on the crucial role that the city of Dallas and its officials played in the maintenance of Dallas as a major hub of CIA activity, and how it led to JFK’s assassination and its cover-up. Go beyond LBJ, Lee Harvey Oswald, and Jack Ruby, and read the full, definitive account of what happened on November 22, 1963—and how it came to fruition.

Authors: H. P. Albarelli Jr., investigative reporter and author of A Terrible Mistake: The Murder of Frank Olson and the CIA’s Secret Cold War Experiments and A Secret Order: Investigating the High Strangeness and Synchronicity in the JFK Assassination, focused on the foreign and domestic intelligence apparatus, government mind control research projects, biological warfare, and political assassinations. His body of work, including articles published in Huffington Post, Pravda, and CounterPunch, has been cited in leading-edge books and periodicals. Albarelli made his home in Vermont, Florida, and the UK.

Dick Russell is an investigative journalist and bestselling author who has written for such varied publications as Time, Sports Illustrated, and the Village Voice. His books include Horsemen of the Apocalypse, Black Genius, and On the Trail of the JFK Assassins, as well as the New York Times bestsellers American Conspiracies, 63 Documents the Government Doesn’t Want You to Read, and They Killed Our President. He lives in Boston and Hollywood.

Nov. 9

washington post logoWashington Post, Jan. 6 panel can gain access to Trump records, judge rules, Spencer S. Hsu, Nov. 9, 2021. Attorneys for the former president vowed to appeal the decision.

tanya chutkanA federal judge in Washington ruled late Tuesday that hundreds of pages of Trump White House records can be turned over to a congressional committee investigating the Jan. 6 attack on the U.S. Capitol despite the former president’s objections.

The decision by U.S. District Judge Tanya S. Chutkan, right, clears the way for the release of government records requested by Congress, with a deadline of Nov. 12. Attorneys for Trump vowed to immediately appeal to the U.S. Circuit Court of Appeals for the District of Columbia Circuit.

U.S. House logo“The court holds that the public interest lies in permitting—not enjoining—the combined will of the legislative and executive branches to study the events that led to and occurred on January 6, and to consider legislation to prevent such events from ever occurring again,” Chutkan wrote in a 39-page opinion.

House Democrats are probing Trump’s communications and activities leading up to and during the mob riot by his supporters that contributed to at least five deaths and forced the evacuation of Congress as it met to confirm the 2020 presidential election results.

In court filings, the House has argued it needs the communications records “of the then-President who helped foment the breakdown in the rule of law” by assembling thousands of supporters in Washington after a months-long effort to falsely brand the 2020 election as stolen.

 kayleigh mcenany djt

washington post logoWashington Post, Jan. 6 committee subpoenas more Trump aides, including Miller, McEnany and McEntee, Jacqueline Alemany and Josh Dawsey, Nov. 9, 2021. The House select committee investigating the Jan. 6 attack on the U.S. Capitol issued subpoenas Tuesday to 10 Trump administration officials, including some of former president Donald Trump’s closest advisers who were in the White House that day.

john mcentee CustomThose subpoenaed to provide testimony and documents include John McEntee, right, the former White House personnel director; Ben Williamson, a former deputy assistant to the president and senior adviser to Chief of Staff Mark Meadows; and Nicholas Luna, the former president’s personal assistant.

Also on the list of subpoenas that went out Tuesday was Kenneth Klukowski, senior counsel to former Justice Department official Jeffrey Clark, who is also on the list because of his involvement “in drafting a letter that urged legislatures in certain states to delay certification of the election, according to the report recently released by the Senate Committee on the Judiciary,” the committee said.

Trump loyalists and top advisers including Kayleigh McEnany, above right, the White House press secretary, and Stephen Miller, the senior adviser to the former president, and Cassidy Hutchinson, a special assistant to Trump for legislative affairs, have also been asked to provide depositions and documents.

Others close to the president who were subpoenaed include Molly Michael, the Oval Office operations coordinator to Trump. Michael still works for Trump and was in the White House for much of Jan. 6. McEntee, according to the committee’s statement, was “in the White House on January 6th and was with former President Trump when he traveled to the Ellipse and spoke at the ‘Stop the Steal’ rally.”

McEntee was a key figure in hiring of Trump loyalists across the government during the final stretch of Trump’s presidency.

Luna was “reportedly in the Oval Office the morning of January 6, 2021, when former President Trump was on a phone call to Vice President Pence pressuring him not to certify the results of the 2020 presidential election,” according to the committee.

The committee has sent out subpoenas in recent weeks to aides and allies of the former president as it tries to crack his inner circle as part of its investigation into the attack as well as the former president’s attempts to overturn the 2020 election results.

It remains unclear how many people are cooperating with the probe and, if so, how much information they are providing. Chairman Bennie G. Thompson (D-Miss.) has said the panel will aggressively go after anyone who tries to stonewall the investigation.

The House recently voted to hold former Trump adviser Stephen K. Bannon in criminal contempt of Congress. But Attorney General Merrick Garland has yet to announce whether his department will prosecute Bannon for failing to cooperate. Members of the select committee have said they view the Justice Department pursuing these charges as key to getting needed information and the department’s decision could impact whether other witnesses will cooperate with the congressional probe.

washington post logoWashington Post, Two judges, one courthouse and an unusual accusation of unethical conduct, Ann E. Marimow, Nov. 9, 2021 (print ed.). For more than two decades, U.S. District Judge Emmet G. Sullivan has served on a local board that recommends judicial nominees to the president for openings on the D.C. trial and appellate courts.

But last year, Sullivan’s work on the judicial nomination commission drew criticism from a fellow judge in Washington, Laurence H. Silberman of the U.S. Court of Appeals for the D.C. Circuit. He said judges should not play such a role in recommending nominees to the president and accused Sullivan of unethical conduct for participating in a process that “exercises enormous political power.”

The formal misconduct complaint, made to the chief judge of the D.C. Circuit, followed an unusual year-long effort by Silberman to see Sullivan removed from his appointed role. Sullivan, in response, sought guidance from the federal judiciary’s committee that oversees judges’ conduct.

emmet sullivan 2012The dust-up between two well-known, outspoken judges who work in the same federal courthouse in Washington became public Monday when Sullivan, right, notified his colleagues that the committee determined his work is permitted and consistent with guidelines for judicial conduct.

“You are using your expertise to evaluate and recommend candidates for judicial office; you are not lobbying the appointing authority or publicly opining on the qualities of any candidate,” the Committee on Codes of Conduct said in an advisory opinion dated Nov. 5, a copy of which was reviewed by The Washington Post. “Having considered the concerns raised about your participation on the Commission, and evaluated these concerns and your ethics inquiry under the relevant Code provisions, we cannot conclude that your service on the Commission is contrary to the Code.”

The D.C. attorney general, Sullivan’s fellow commissioners on the judicial nomination board and a Stanford Law School ethics professor agreed with the committee’s conclusion.

The advisory opinion notes that a small number of judges on the 15-person committee disagreed with the panel’s advice, finding that the nominations work can be political and “may compromise the independence of the judiciary by enmeshing it with other branches of the federal government.”

The committee’s opinion and supporting documents provide insight into the inner workings of the federal court system’s efforts to address questions about judicial ethics. The controversy, laid out in a series of memos dated between August 2020 and this past Friday, is also an unusual example of a judge accusing a colleague of unethical behavior in a courthouse known for collegiality.

Nov. 8

michael flynn djt

ny times logoNew York Times, Jan. 6 Inquiry Subpoenas Close Trump Allies, Luke Broadwater, Nov. 8, 2021. The latest batch of subpoenas from the House panel investigating the Capitol riot includes officials from former President Trump’s re-election campaign. Michael Flynn, above left, Mr. Trump’s former national security adviser, is included among those called to turn over documents and sit for depositions.

The House committee investigating the Jan. 6 attack on the Capitol issued subpoenas on Monday for six close allies of former President Donald J. Trump who promoted false claims of election fraud or worked to overturn the results of the 2020 election, including his former national security adviser Michael T. Flynn.

The subpoenas demand records and testimony from Mr. Trump’s campaign manager Bill Stepien and a senior adviser, Jason Miller, as well as others associated with a so-called “war room” of planners who sought to halt Congress’s counting of electoral votes before a violent mob overtook the Capitol. They include John Eastman, a lawyer who drafted a memo laying out how Mr. Trump could use Congress to try to overturn the election and Mr. Flynn, who discussed seizing voting machines and invoking certain national security emergency powers.

The subpoenas demand that the witnesses turn over documents this month and sit for depositions in early December.

 

Trump-supporting former law school dean John Eastman, left, helps Trump attorney Rudy Giuliani inflame pro-Trump protesters in front the White House before the insurrection riot at the U.S. Capitol to prevent the presidential election certification of Joe Biden's presidency on Jan. 6, 2021 (Los Angeles Times photo). Trump-supporting former law school dean John Eastman, left, helps Trump attorney Rudy Giuliani inflame pro-Trump protesters in front the White House before the insurrection riot at the U.S. Capitol to prevent the presidential election certification of Joe Biden's presidency on Jan. 6, 2021 (Los Angeles Times photo). 

“In the days before the Jan. 6 attack, the former president’s closest allies and advisers drove a campaign of misinformation about the election and planned ways to stop the count of Electoral College votes,” Representative Bennie Thompson, Democrat of Mississippi and the committee chairman, said in a statement. “The select committee needs to know every detail about their efforts to overturn the election, including who they were talking to in the White House and in Congress, what connections they had with rallies that escalated into a riot, and who paid for it all.”

The six subpoenas bring to 25 the number issued so far by the committee. More than 150 witnesses have testified in closed-door sessions with the committee’s investigators.

Mr. Stepien was the manager of Mr. Trump’s re-election campaign, which urged state and party officials to affect the outcome of the 2020 election by asking states to delay or deny certification of electoral votes and by sending multiple slates of the votes to Congress to allow a challenge to the results, the committee said.

Mr. Miller, a senior adviser to Mr. Trump, spread the false claim of widespread fraud and coordinated with the former president and his personal lawyer Rudolph W. Giuliani in attempts to overturn the election, the committee said. It cited the fact Mr. Miller participated in a meeting on Jan. 5 at the Willard Hotel in Washington in which Mr. Giuliani, Stephen K. Bannon, and others discussed pressuring former Vice President Mike Pence to not certify the Electoral College results.

The panel also subpoenaed the Trump campaign’s national executive assistant Angela McCallum, who reportedly left voice mail for an unknown Michigan state representative in which she said that she wanted to know whether the Trump campaign could “count on” the representative. She is also believed to have told the representative that they had the authority to appoint an alternate slate of electors based on purported evidence of widespread election fraud, the committee said.

Mr. Eastman has been the subject of intense scrutiny in recent weeks after it was revealed that he wrote a memo to Mr. Trump suggesting that Mr. Pence could reject electors from certain states in order to deny Joseph R. Biden Jr. a majority of the Electoral College vote.

Mr. Eastman is reported to have participated in a briefing for nearly 300 state legislators, during which he told the group that it was their duty to “fix this, this egregious conduct, and make sure that we’re not putting in the White House some guy that didn’t get elected,” the committee said. He participated in the Jan. 5 meeting at the Willard Hotel and spoke at the rally on the Ellipse on Jan. 6 before the Capitol assault.

Mr. Flynn attended a meeting in the Oval Office on Dec. 18 during which participants discussed seizing voting machines, declaring a national emergency, invoking certain national security emergency powers and continuing to spread the false message that the 2020 election had been tainted by widespread fraud, the committee said.

It has also issued a subpoena for Bernard Kerik, the former New York police commissioner who reportedly participated in the Willard Hotel meeting and paid for rooms and suites in Washington hotels as he worked with Mr. Giuliani to promote baseless litigation and “Stop the Steal” efforts, the committee said.

 

igor danchenko john durham

Proof, Investigative Commentary: The Durham Indictment of Igor Danchenko (above at left) Is An Embarrassment to the Department of Justice, Seth Abramson, left, Nov. 7-8, seth abramson graphic2021. A longtime criminal defense attorney, Trump biographer, and chronicler of the Trump-Russia scandal unpacks an irresponsible criminal indictment by Trump Justice Department-appointed special prosecutor John Durham, above right, that has fooled reporters into thinking it significant.

On the tenth page of the first volume of the major Trump-Russia report coordinated by former FBI director Robert Mueller, the venerated lawman seth abramson proof logoopines that he hasn’t been able to access a significant percentage of the stock of evidence he’s been aiming to accrue.

The reason? Not dumb luck or any particular investigative failure at the FBI, but systematic hindrance of his efforts by people FBI logoassociated with Donald Trump.

Mueller would later on in his report disclose that much of that hindrance had been coordinated by Trump himself, aided and abetted by Trump’s personal attorneys. If this tune sounds familiar, it should—as it’s exactly what would lead, 21 months after the Mueller Report was released, to an attack on the U.S. Capitol that left five dead.

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).

The Bulwark, Investigation: Notes on an Authoritarian Conspiracy: Inside the Claremont Institute’s “79 Days to Inauguration” Report, Christian Vanderbrouk, christian vanderbroukNov. 8, 2021. Claremont’s post-election war game provides a window into the group’s ambitions.

  • The sun rises on January 6, 2021 while a nation is in crisis. Michigan’s presidential electors are in dispute after a mysterious fire in Detroit destroyed thousands of mail-in ballots, ultimately throwing the election to Congress.
  • The nation’s capital is overwhelmed by riots organized by left-wing radicals.
  • A Republican member of Congress is attacked and critically injured in the violence, potentially depriving Donald Trump of the decisive vote.
  • However, the representative heroically insists on being taken to the House floor. “With IVs and blood transfusions being administered, the member casts the deciding vote, giving Trump 26 state delegations and the needed majority.”

This is the grisly climax of a report published in mid-October 2020 by the Claremont Institute and Texas Public Policy Foundation’s (TPPF) called “79 Days to Inauguration,” prepared by “Constitutional scholars, along with experts in election law, foreign affairs, law enforcement, and media . . . bulwark logo big shipcoordinated by a retired military officer experienced in running hundreds of wargames.”

Among these luminaries were figures such as John Eastman—lawyer for Donald Trump and author of a memo advising Vice President Mike Pence to unilaterally block certification of Joe Biden’s win in order to buy time for GOP-controlled state legislatures to send competing slates of electors—and K.T. McFarland, who served as deputy national security advisor under Michael Flynn in the Trump White House.

republican elephant logoOther participants include Kevin Roberts, then-executive director of the Texas Public Policy Foundation (soon to be head of the Heritage Foundation), Jeff Giesea, “a [Peter] Thiel protégé and secret funder of alt-right causes,” and Charles Haywood, a fringe blogger who anxiously awaits an American “Caesar, authoritarian reconstructor of our institutions.”

Yet despite the authors’ pretensions to scholarship and rigor — “for a simulation to be valuable, the other side gets a vote and actions must be based in realism” —  the final document is a frenzied and paranoid piece of work, revealing of the anxieties and aspirations of the authoritarian right.

Practically, the report is an instruction manual for how Trump partisans at all levels of government — aided by citizen “posses” of Proud Boys and Oath Keepers — could, quite literally, round up opposition activists, kill their leaders, and install Donald Trump for a second term in office.

evan newmann riot dojevan neumannMoscow Times, U.S. Capitol Rioter Seeks Asylum in Belarus – State TV, Staff Report, Updated Nov. 8, 2021. A man on the FBI’s Most Wanted List for allegedly attacking police during the Jan. 6 U.S. Capitol riot is now seeking asylum in Belarus, the ex-Soviet country’s state-run television reported Sunday.

Evan Neumann, 48 (shown above in an FBI photo at the Jan. 6 insurrection and below on state television expressing gratitude for his protectors), is wanted in the United States on charges of violent entry and disorderly conduct on Capitol grounds, as well as for assaulting, resisting and obstructing law enforcement during civil disorder. Neumann denies the charges as “unfounded.”

FBI logoNeumann sold his California home in spring and was thought to have moved to Ukraine to evade arrest, ABC News reported this summer.

“Judging by his story, [Neumann] is the same type of simple American whose shops were burned by Black Lives Matter activists,” a Belarus 1 TV channel presenter said, echoing a common talking point on Russian state television.

Neumann “sought justice and asked uncomfortable questions” following the 2020 U.S. elections disputed by ex-President Donald Trump, the presenter added, “but lost almost everything and is being persecuted by the U.S. government.”

In a sit-down interview, Neumann recalled crossing swampy forests and meeting wild hogs and snakes in his journey from Ukraine to Belarus. Belarus 1 reported that Neumann traveled from the U.S. to Italy in March, then took a train to Switzerland and drove to Germany and Poland before settling in western Ukraine, where he had rented an apartment for four months.

Neumann said he noticed Ukrainian security services “following” him two weeks into his stay, which prompted him to cross into neighboring Belarus and seek asylum. Belarusian migration authorities declined to comment, citing confidentiality of personal data, the Russian state-run RIA Novosti belarus flagreported Monday. At least three U.S. citizens have applied for asylum in Belarus so far in 2021, the outlet added.

Belarus meanwhile has been accused of orchestrating a wave of migrants and refugees, mainly from the Middle East, toward European Union members' borders in retaliation to EU sanctions. Belarusian leader Alexander Lukashenko has denied the charges.

Daily Beast, Capitol Riot Suspect Evan Neumann Claims Asylum in Belarus After Fleeing FBI, Philippe Naughton, Nov. 8, 2021. A California man who is on the FBI’s Most Wanted List for allegedly attacking police during the Jan. 6 Capitol riot has claimed asylum in the former Soviet republic of Belarus.

daily beast logoEvan Neumann, 48, was charged in July on six separate counts, including assaulting officers and violent entry, after being identified from footage of the storming of Congress. But by then he had already sold his house in the Bay Area and fled to Europe, initially hiding out in Ukraine before deciding to cross over into Belarus—often described as “Europe’s last dictatorship.”

His hosts appear delighted to have him. Belarus state TV portrayed him as a victim of government persecution and described him as “the same type of simple American whose shops were burned by Black Lives Matter activists.”

JUSTICE ON THE BRINK: The Death of Ruth Bader Ginsburg, the Rise of Amy Coney Barrett, and Twelve Months That Transformed the Supreme Court, By Linda Greenhouse

ny times logoNew York Times, TBook Review: The dean of Supreme Court journalists examines whether the institution has become a conservative bastion, Noah Feldman, Nov. 8, 2021. Linda Greenhouse, who covered the Supreme Court for The New York Times for 30 years, from 1978 to 2008, is the acknowledged dean of living Supreme Court journalists.

ruth bader ginsburg scotus

Her stated goal in Justice on the Brink is not analyzing Ruth Bader Ginsburg’s choice to retain her seat but “chronicling the life of the Supreme Court from July 2020 through June 2021.” No one can recount judicial decisions as accessibly and intelligently as Greenhouse. She does an excellent job of describing the court’s jurisprudence during that year, interspersing short biographical observations of the justices and filling in useful background.

The challenge the book faces, therefore, doesn’t derive from Greenhouse’s admirably clear account of the court’s business. It’s the unfortunate fact that, in the year under consideration, the most important news about the Supreme Court consisted of things that the court’s activist conservative majority did not do.

True, in its so-called “shadow-docket” of responses to emergency applications, the Supreme Court repeatedly struck down by 5-to-4 votes Covid restrictions applying to religious worship when, in the majority’s view, secular functions were being exempted from the restrictions.

linda greenhouse thumb CustomYet none of these decisions is of historical importance even slightly comparable to the three major decisions reached by the justices in the year discussed by Greenhouse, right.

With constitutional democracy itself on the line, and a sitting president outrageously denying the validity of the vote that would put him out of office, the Supreme Court did not overturn the valid and legitimate results of the 2020 presidential election, despite being invited to do so by Trump’s campaign lawyers. The court did not invalidate the Affordable Care Act, despite being asked to end Obamacare by Trump’s Department of Justice. And the court did not reverse 30-plus years of First Amendment precedent by creating a constitutional right to automatic exemptions from neutral, generally applicable laws, despite being expected to do so by just about every court watcher, myself included.

Nov. 4

The five most radical right Republican justices on the U.S. Supreme Court are shown above, with the sixth Republican, Chief Justice John Roberts, omitted in this view.

The five most radical right Republican justices on the Supreme Court are shown above, with the sixth Republican, Chief Justice John Roberts, omitted in this photo array.

ny times logoNew York Times, Opinion: Do Gun Rights Depend on Abortion Rights? That’s Now Up to the Supreme Court, Linda Greenhouse, (shown at right on the cover of her memoir, "Just a Journalist"), Nov. 4, 2021. It might linda greenhouse cover just a journalisthave looked like a coincidence that questions of abortion and guns both reached the Supreme Court in the same week. But it wasn’t, really. Powerful social movements have devoted years to steering these two issues toward a moment of truth in a court reshaped in large measure by those same movements.

Recall that in the Rose Garden ceremony in September of last year in which President Donald Trump introduced his third Supreme Court nominee, Amy Coney Barrett, to the country, he couldn’t refrain from observing that “rulings that the Supreme Court will issue in the coming years will decide the survival of our Second Amendment.” The president didn’t mention abortion. Given his nominee’s well-known opposition to Roe v. Wade, he didn’t have to.

So, perhaps inevitably, it has come to this: One right, established for nearly half a century, faces erasure, while the other, extracted 13 years ago from a contorted reading of an 18th-century text, may be poised for an ahistoric expansion.

Little emerged in the arguments this week to knock the rights to abortion and gun possession off these apparent trajectories. Although the consensus seems to be that a majority of the justices may not permit Texas to get away with walling off its appalling anti-abortion law from judicial challenge, the fate of the actual right to abortion itself depends not on the pair of Texas cases the court heard this week, but on the case from Mississippi it will hear on Dec. 1.

And on the Second Amendment case, a challenge to New York State’s limits on licenses for carrying a concealed weapon, there was little surprise that a majority appeared ready to interpret the Constitution to require a substantial expansion of individual gun rights.

Still, something interesting did emerge from the proximity of the week’s arguments. The Texas law, S.B. 8, seeks to take state officials out of the role of enforcing the ban on abortion that the law imposes at roughly six weeks of pregnancy. Instead, any individual may bring a private damages action for at least $10,000 against anyone who provides or enables an abortion in violation of the law. At least while Roe v. Wade and Planned Parenthood v. Casey remain as precedents, the six-week ban is flagrantly unconstitutional.

The idea of turning every citizen into a potential vigilante is to immunize state officials from a federal court lawsuit that would challenge the law’s constitutionality, on the theory that no official has anything to do with the law’s enforcement.

But what about blue states? A brief filed against Texas by a gun-rights group, the Firearms Policy Coalition, raised the prospect that if the state’s vigilante mechanism prevails, states favoring limitations on gun ownership contrary to Supreme Court precedent could enact their own copycat laws authorizing individuals to sue gun owners.

Nov. 3

ny times logoNew York Times, Prominent Conservatives Back Letting States Limit Guns in Public, Adam Liptak, Nov. 3, 2021 (print ed.). When the Supreme Court hears a major Second Amendment case on Wednesday, many expect that the court’s recently expanded conservative majority will be poised to strike down the New York law under review, one that imposes strict limits on carrying guns outside the home.

But a brief filed by a group of prominent conservative lawyers and former government officials in Republican administrations has complicated that picture. Drawing on originalism, the interpretive method embraced by the conservative legal movement, the brief argued that “the original understanding of the Second Amendment was that there is not an absolute, unfettered right to carry loaded guns in public.”

J. Michael Luttig, a former federal appeals court judge revered by conservatives, was among the lawyers who filed the brief. He said the issue was straightforward.

“When you look at the history and tradition, spanning six or seven centuries, you indisputably find that public carry of guns has been variously prohibited and regulated throughout the entire time,” he said in an interview. “New York’s statute, and the statutes in other states that are its equivalent, fit very comfortably within the history and tradition of firearm regulation.”

A brief filed in a major gun control case argued that limits on the public carrying of weapons were consistent with the Second Amendment.

Looking to history is a central feature of originalism, the method of interpreting the Constitution that seeks to determine its original public meaning.

Other lawyers who signed the brief included Peter D. Keisler, a former acting attorney general in the George W. Bush administration; John B. Bellinger III, a top State Department and White House lawyer under Mr. Bush; and Carter Phillips, a leading Supreme Court lawyer who served in the Justice Department during the Reagan administration.

Paul D. Clement, a former solicitor general in the Bush administration who represents the two men and the gun rights group challenging the New York law, took a different view of the relevant history.

“The founding generation understood the Second Amendment and its English predecessor to guarantee a right to carry common arms for self-defense,” he wrote in a Supreme Court brief.

 

jeanine djt jeanine pirro 2018 book

Fox News personality "Judge" Jeanine Pirro (left) and President Donald Trump (right) promote the host's book in the Oval Office in 2018. Image via Pirro's Twitter.

Raw Story, Fox's Judge Jeanine orchestrated payments for ‘command centers’ that could blow up Trump’s defense, Travis Gettys, Nov. 03, 2021. Fox News host Jeanine Pirro orchestrated campaign payments for 'command centers' at DC hotels that could blow up Donald Trump's executive privilege claims.

Former New York City mayor Rudy Giuliani, right, and the city's former police chief Bernie Kerik had been paying for hotel rooms and travel related to their rudy giuliani recentefforts to overturn Trump's election loss, but the pair grew concerned by early December as the bills piled up, reported the Washington Post.

fox news logo Small"How do I know I'm gonna get my money back?" Kerik thought at the time, as he recently told the newspaper.

Kerik knew that Giuliani hadn't been reimbursed for his expenses or paid for his services, but their friend Jeanine Pirro, a Fox News host beloved by the twice-impeached one-term president, called Republican National Committee chairwoman Ronna McDaniel and asked her to help them out.

McDaniel, below at left, spoke to Kerik by phone but refused to give him money, and instead recommended that he ask the Trump campaign to reimburse his expenses, according to the former police chief and a GOP official.

The campaign cut its first check to Kerik in mid-December with Trump's approval, according to a former senior campaign official, and eventually paid more than $225,000 for hotel rooms and suites at the Willard Hotel in Washington, D.C., that served as a "command center" for efforts to overturn the ronna mcdaniel djt Customelection results ahead of Jan. 6 riots.

Those payments, according to legal experts, could undermine Trump's claims of executive privilege over documents and testimony related to the U.S. Capitol riots sought by the House select committee investigating the insurrection.

"[This] further undermines a wildly broad assertion of executive privilege," said Richard Ben-Veniste, a former Watergate prosecutor. "Executive privilege is typically limited to the protection of communications involving a president's official duties — not to those relating to personal or political campaign matters."

Former Justice Department official John Yoo, who advised former vice president Mike Pence's staff that there was no legal basis to deny the certification of Joe Biden's election win, agreed that the payments could upend Trump's defense.

"If he acts as a president, he gets these things we talk about — executive privilege and immunity," Yoo said. "But if he's acting as a candidate, he's deprived of all of those protections."

ricardo monkey morales oswald gunWhoWhatWhy, Claim: JFK Assassin Oswald Was CIA-Trained — And Bad at Shooting, Chris Roberts, Nov. 3, 2021. What’s hidden in the government records related to the John F. Kennedy assassination that President Joe Biden (and Donald Trump before him) promised to release — in Biden’s case as recently as last month — and then didn’t?

Only the CIA, FBI, and archivists know, and only they can say for certain, what knowledge survived the 1960s and 1970s and what vital clues ended up in the shredder. Maybe something is in there that could vet the most recent claim that Lee Harvey Oswald — whom the Warren Commission fingered whowhatwhy logoas the lone shooter and whom the House Select Committee on Assassinations (and almost everyone else alive) believe was probably part of some conspiracy — was a CIA asset who received CIA training before November 22, 1963, and who, according to his purported trainer, was a terrible shot.

Maybe there’s nothing in the archives that could verify that one. Either way, it might be nice to know!

Over the Halloween weekend, the Miami Herald picked up a story, initially dropped via Spanish-language radio, that a notorious anti-Castro Cuban exile and sniper trainer who had verifiably worked with the CIA recognized Oswald as one of his trainees in a secret CIA sniper camp, or so he told his sons decades later.

Additionally — according to the tale related on Miami-based Actualidad 1040 AM by one of the sons of Ricardo “Monkey” Morales (shown above at left) and later repeated to the Herald — Morales and some associates were sent to Dallas on the order of his CIA handler two days before the assassination for an unspecified “clean-up” mission. They were then recalled to Miami after the shooting, without receiving further orders.

Possible? Sure. Plausible? Those records certainly would be handy!

According to 58-year-old Ricardo Morales Jr., about a year before the elder Morales was shot in the back of the head during a December 1982 fracas in a Miami bar — a killing his attorney said was a setup — the ex-spy had become paranoid and fearful about his safety.

Other Recent Headlines:

 Nov. 2

ny times logoNew York Times, Opioid Makers Win Major Victory in California Trial, Jan Hoffman, Nov. 2, 2021. In one of the first cases against drug makers over the crisis, a judge said that there was “simply no evidence” the companies were liable in the epidemic.

Four manufacturers of prescription opioids won the pharmaceutical industry’s first major legal victory in the opioid crisis, turning aside claims by local California governments that they contributed substantially to the epidemic.

In a bench trial decision late Monday, a state judge flatly rejected a legal argument being employed in thousands of cases against the pharmaceutical industry over its role in an epidemic of abuse that, according to federal data, has contributed to the deaths of some 500,000 people in the United States since the late 1990s and grown worse during the pandemic.

johnson johnson logo“There is simply no evidence to show that the rise in prescriptions was not the result of the medically appropriate provision of pain medications to patients in need,” wrote Judge Peter Wilson of Orange County State Superior Court, who presided over a four-month bench trial.

The manufacturers include Johnson & Johnson, which has a nationwide opioids settlement offer pending; Teva, a maker of generic opioids based in Israel; Allergan, a subsidiary of AbbVie; and Endo Pharmaceuticals.

Nov. 1
 

wayne madesen report logo

Wayne Madsen Report (WMR), Investigative Commentary: Durham's phony investigation a waste of scant DOJ resources, Wayne Madsen, left, Nov. 1, 2021. wayne madsen may 29 2015 cropped SmallAttorney General Merrick Garland,merrick garland right, who has become the least popular member of President Biden's Cabinet, is continuing to allow a holdover special prosecutor from the Trump administration to engage in a costly and time-consuming "investigation" of absolutely nothing rising to a level of criminality.

On October 19, 2020, just a few weeks prior to the 2020 election, U.S. Attorney for Connecticut John Durham was secretly appointed by then-Attorney General William Barr as special counsel to investigate Trump's alleged "Russia Hoax." Durham was originally tasked by Barr in April 2019 to investigate the Justice Department's ongoing internal probe of federal law enforcement john durham Customsurveillance activities of the Trump campaign for connections to Russia. Trump falsely insisted that the investigation was a "witch hunt."

Durham has been permitted by Garland to continue with a fool's errand of an investigation that has resulted in two dubious indictments. It is clear that Durham's targets now include the 2016 Hillary Clinton campaign, the Robert Mueller investigation of that campaign, and anything else that Durham (and his puppeteer Trump) decides is worthy. Garland has failed to show any desire to order Durham to wrap up his investigation or be shown the door.

Essentially, Durham has become a new Ken Starr. Starr was the independent Whitewater counsel who began an investigation into Bill Clinton's involvement in an Arkansas real estate deal and ended with a dubious probe of Clinton for receiving a blowjob in the Oval Office from White House intern Monica Lewinsky.

Durham has been using the Justice Department to conduct a far-right and conspiracy theory-laden crusade against Trump's political foes. It is Durham who has misused his special prosecutor position for his own political goals and interests.

washington post logoWashington Post, Supreme Court won’t hear case seeking more transparency from secretive surveillance court, Robert Barnes and Spencer S. Hsu, Nov. 1, 2021. The Supreme Court on Monday declined to decide whether the public has at least a limited right to review the decisions of a largely secret federal surveillance court whose influence has been growing.

The justices turned down a request from the American Civil Liberties Union and others to review a ruling that denied access to decisions of the Foreign Intelligence Surveillance Court (FISC). That court said it lacked authority even to consider a public claim under the First Amendment to its secret decision-making.

Justices Neil M. Gorsuch and Sonia Sotomayor said the case, ACLU v. United States, should have been reviewed.

Congress enacted the Foreign Intelligence Surveillance Act in 1978 to regulate domestic surveillance in national security investigations, such as monitoring suspected spies and terrorists.

Investigators must convince a FISC judge that a target for eavesdropping is probably an agent of a foreign power, but targets can include Americans and any communication in which one party touches U.S. soil.

Groups ask Supreme Court for access to surveillance court’s opinions

Privacy advocates have criticized the court as a rubber stamp, because judges hear only the government’s request. Most subjects never know they are targets or what the government told the judge. In 2019, for instance, judges approved 952 applications in whole or with modifications, while denying 58 in whole or in part.

After leaks from Edward Snowden in 2013 showed widespread, bulk collection of phone calls and emails, Congress in 2015 required the government to review any significant opinions for public release.

But the ACLU argued that such reviews are conducted by executive-branch officials, not a court, and that the government believes release of opinions before June 2015 is not required, although it has released several.

Besides other free-speech advocates, the ACLU’s challenge was supported by news organizations, including The Washington Post, and some former high-level national security experts.

One group included former director of national intelligence James R. Clapper Jr., former CIA director John Brennan, and Donald B. Verrilli Jr., who was solicitor general under President Barack Obama.

Their brief said it is not enough for the executive branch to decide which opinions may be released, and that there is no reason the public cannot see properly redacted versions of the court’s actions.

“The basic, longstanding premise of public access to judicial opinions does not cease to apply merely because the judicial opinions of the FISC relate to surveillance, intelligence, and national security,” they wrote.

In a short dissent, Gorsuch said they had a point.

The government makes “the extraordinary claim that this Court is powerless to review the lower court decisions even if they are mistaken,” he wrote in an opinion joined by Sotomayor. “On the government’s view, literally no court in this country has the power to decide whether citizens possess a First Amendment right of access to the work of our national security courts.”

“If these matters are not worthy of our time, what is?” Gorsuch asked.

 huffington post logoHuffPost, Senate Confirms First Openly LGBTQ Woman To Lifetime Seat On U.S. Appeals Court, Jennifer Bendery, Nov. 1, 2021. Beth Robinson's confirmation also tilts the U.S. Court of Appeals for the 2nd Circuit to a majority Democrat-appointed court.

President Joe Biden quietly chalked up another historic win on Monday night with the Senate’s confirmation of Beth Robinson to the U.S. Court of Appeals for the 2nd Circuit.

Robinson, who has been an associate judge on the Vermont Supreme Court since 2011, is now the first openly LGBTQ woman to serve on any U.S. appeals court. It’s a lifetime appointment. She is 56.
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The Senate confirmed Robinson 51 to 45. Every Democrat present voted for her. Just two Republicans did: Sens. Lisa Murkowski (Alaska) and Susan Collins (Maine). The full vote tally is here.

Robinson was a civil litigator in private practice from 1993 to 2010, during which time she focused on civil litigation including employment law, workers’ compensation, contract disputes and family law. She also represented LGBTQ clients in civil and civil rights cases, including leading the freedom-to-marry movement in Vermont.

“Robinson’s confirmation is particularly historic given the dearth of LGBTQ+ representation on our courts and her legacy of advocating for LGBTQ+ equality,” said Rakim Brooks, president of Alliance for Justice, a national association of more than 120 progressive organizations focused on the courts.

Robinson’s confirmation also shifts the balance of that court to a majority Democrat-appointed panel of judges, a detail that progressive judicial advocates hailed as a sign that Biden is already making real progress in reshaping the nation’s federal courts. The Senate has now confirmed a total of three of Biden’s nominees to this court.

“President Biden’s laser-like focus on quickly nominating highly qualified, professionally diverse judges is paying off at the all-important courts of appeal level,” said Chris Kang, chief counsel for the left-leaning Demand Justice advocacy group.

With Robinson’s confirmation, along with another Monday vote to confirm Toby Heytens to a U.S. appeals court, Biden has now gotten a total of 28 appeals court and district court nominees confirmed since taking office. That’s more than any U.S. president in modern history has had confirmed by this point in their term.

Future of Freedom Foundation, Opinion: The Silence of CIA Media Assets on the JFK Cover-Up, Jacob G. Hornberger, Nov. 1, 2021. One of the funniest aspects of President Biden’s decision to continue the CIA’s cover-up of the national-security establishment’s regime-change operation on November 22, 1963, has been the silent reaction of the mainstream media. Ordinarily, the CIA’s journalistic assets would have gone into action by now, jacob hornberger newpublishing editorials and op-eds supporting Biden’s decision to grant the CIA’s demand for continued secrecy on grounds of “national security.”

What’s the reason for the silence? I suspect that despite their extreme loyalty to the CIA, they’re all too embarrassed to make such a ludicrous argument. Better to remain silent and hope the whole controversy just goes away.

By the time of Oliver Stone’s movie JFK in 1991, the CIA and the rest of the U.S. national-security establishment had kept their assassination-related records secret for some 30 years. They said that “national security” required such secrecy, notwithstanding their claim that a lone-nut communist former U.S. Marine had killed President Kennedy.

future of freedom foundation logo squarePeople didn’t buy it. Stone’s movie induced a massive public outcry against continued secrecy. In one of those rare instances in which Congress is forced by public pressure to act against the wishes of the Pentagon and the CIA, Congress enacted the JFK Records Act of 1992, which forced the national-security establishment to disclose their long-secret assassination-related records.

To enforce the law, Congress called the Assassination Records Review Board into existence. From 1993 to 1998, the ARRB forced the release of thousands of long-secret records, oftentimes over the vehement objections of the Pentagon and the CIA.

As a result of those disclosures in the 1990s, the United States did not fall into the ocean. The communists did not take control over the United States. Cuba did not invade Miami. The dominoes did not fall in Southeast Asia.

What did happen, however, is that the ARRB lifted the shroud of secrecy that the national-security establishment had placed over the autopsy that it had conducted on the body of President Kennedy a few hours after the assassination. The records revealed one reason why the military and the CIA had wanted to keep their assassination-related records secret forever: The autopsy they conducted was fraudulent to the core.

As I have repeatedly emphasized, there is no innocent explanation for a fraudulent autopsy, especially given that the scheme was launched at Parkland Hospital immediately after Kennedy was declared dead. See my two books The Kennedy Autopsy and The Kennedy Autopsy 2. Also see Douglas Horne’s excellent video presentation at our conference last spring on the Kennedy assassination as well as his watershed five-volume book Inside the Assassination Records Review Board.

Unfortunately, however, there was a flaw in the law. The law gave the national-security establishment another 25 years of secrecy if the release of certain records posed “an identifiable harm to the military defense, intelligence operations, law enforcement, or the conduct of foreign relations that is of such gravity that it outweighs the public interest in disclosure.”

The ARRB went out of existence in 1998 and, therefore, it wasn’t around to enforce the law when that 25-year deadline materialized in 2017 during the Trump administration. Trump surrendered to the CIA’s demand for continued secrecy and pushed the secrecy deadline into 2021.

Not surprisingly, Biden has also now surrendered to the CIA’s demand for continued secrecy. Like Trump, he says that the release of the records will threaten “national security” by posing “an identifiable harm to the military defense, intelligence operations, law enforcement, or the conduct of foreign relations that is of such gravity that it outweighs the public interest in disclosure.”

Will the remaining records contain a “smoking gun” confession of the national-security establishment’s regime change on November 22, 1963. Of course not. No one would be so stupid as to put such a confession in writing and then turn it over to the National Archives.

But the records undoubtedly contain incriminating pieces of the puzzle that will further fill out the regime-change mosaic, just as the ARRB’s forced disclosure of the medical evidence in the 1990s established the existence of a fraudulent autopsy.

Let me give you another example of this phenomenon. In 2017, a few of the secret records that were released under Trump disclosed a secret memorandum from FBI Director J. Edgar Hoover that was dated November 24, 1963, the day that Jack Ruby assassinated Lee Harvey Oswald. The memo stated: “The thing I am concerned about, and so is Mr. Katzenbach, is having something issued so we can convince the public that Oswald is the real assassin.”

Oswald was referring to U.S. Deputy Attorney General Nicholas Katzenbach, who himself issued a memorandum to presidential aide Bill Moyers on November 25, 1963, stating, “The public must be satisfied that Oswald was the assassin; that he did not have confederates who are still at large; and that the evidence was such that he would have been convicted at trial.”

Three questions naturally arise:

1. How in the world could two of the nation’s top law-enforcement officers be certain that Oswald assassinated the president within just two or three days of the assassination, especially given that Oswald was not only proclaiming his innocence but also claiming he was being framed for the crime?

2. Even if Oswald was involved in the crime, how in the world could anyone be certain that he didn’t have confederates without weeks or even months of investigation, especially since the Dallas treating physicians had said that Kennedy’s throat wound was an entry wound, which necessarily meant a shot having been fired from the president’s front?

3. How would the release of Hoover’s memo back in the 1990s possibly have threatened “national security” or possibly posed “an identifiable harm to the military defense, intelligence operations, law enforcement, or the conduct of foreign relations that is of such gravity that it outweighs the public interest in disclosure”?

It couldn’t have, which meant that the national-security establishment lied to the ARRB when they used that excuse to keep the Hoover memo secret.

ny times logoNew York Times, Supreme Court Tries to Tame Unruly Oral Arguments, Adam Liptak, right, Nov. 1, 2021. The court, which is hearing major cases on abortion adam liptakand guns, has revised its procedures to make sure that all justices are heard.

Justices Sonia Sotomayor and Clarence Thomas may not agree about much, but they have both said the Supreme Court’s oral arguments have been plagued by too many interruptions. A few years ago and again this fall, the court took steps to address their concerns.

After a 2017 study showed that female justices were disproportionately interrupted by their male colleagues and by male lawyers, Chief Justice John G. Roberts Jr. took action, Justice Sotomayor said in a video conversation last month at New York University’s law school.

“That study had a great impact,” Justice Sotomayor said.

“I know there is often discussion about how much influence research has on the courts,” she said. “In the case of that study, I think it had an enormous impact. I know that after reports of that finding came out that our chief judge was much more sensitive.”

Chief Justice Roberts, she said, started “playing referee when interruptions happened and ensuring that people got back to the judges who were interrupted.”

clarence thomas HRJustice Thomas, right, is also no fan of interruptions, saying the lawyers arguing before the court should be allowed to make their case without being bombarded with questions.

“If I invite you to argue your case, I should at least listen to you,” he told a bar association in Richmond, Va., in 2000.

After the justices were ousted from their courtroom last year by the pandemic, they heard arguments by telephone, asking questions one at a time in order of seniority. It was both civilized and a little inert. Justice Thomas was a full participant.

When the justices returned to their courtroom last month, after an absence of about 18 months, the court announced a new format, one that showed, if nothing else, that the justices were giving a lot of thought to how to conduct arguments that are both probing and polite.

They settled on a hybrid model, supplementing the familiar free-for-all questioning with a round of optional one-at-a-time questions, proceeding in order of seniority, once per lawyer.

The justices also appear to have agreed among themselves to let Justice Thomas ask the first questions during the main part of the arguments, and he did so almost without exception in the nine arguments the court heard in October.

 

October

Oct. 31

washington post logoWashington Post, Opinion: ‘No decision of this Court is safe’: What’s at stake in the Texas abortion case, Ruth Marcus, right, Oct. 31, 2021 (print ed.). The only thing ruth marcusyou need to understand about the Texas abortion law now before the Supreme Court are these words, from the Biden administration’s brief: “If Texas is right, no decision of this Court is safe.”

The legal issues are mind-numbingly complex: Under what circumstances the federal government can go to court to prevent citizens’ rights from being violated. The scope of the 11th Amendment’s protections for state sovereign immunity. Technical questions about standing to sue and the appropriate reach of injunctive relief.

But the fundamental question presented in the two related cases to be argued Monday boils down to something much easier to grasp: Must federal courts stand by, powerless to intervene, when a state not only enacts a flagrantly unconstitutional law but also deliberately rigs the system to prevent effective judicial review?

And that is what the brief filed Wednesday by acting U.S. Solicitor General Brian H. Fletcher makes clear. The burning desire to eviscerate abortion rights launched this case, but even more is at stake.

As a group of constitutional law scholars wrote of the Texas law in their friend-of-the-court brief, “By attacking well-established constitutional rights through a scheme designed to evade judicial review, S.B. 8 represents a challenge to the rule of law, our system of constitutional government, and the Constitution’s Supremacy Clause.”

Here’s why. The Supreme Court has ruled, and ruled again, that states cannot flatly prohibit abortions before the fetus is viable, at about 24 weeks. But the Texas law bars almost all abortions after a fetal heartbeat is detected, at about six weeks.

Then, the law removes state officials from enforcing the prohibition; instead, it outsources that job to private parties — antiabortion vigilantes. This could be anyone, from any state, without any connection to the individual seeking the abortion, filing suit anywhere in Texas, against anyone who helped obtain the abortion in any way, except the pregnant woman herself.

If their suits are successful, these bounty hunters are guaranteed an award of at least $10,000, plus legal fees. Doctors or others involved in the abortion could be subject to an unlimited number of suits — even if the abortion was legal at the time it was performed.

Since S.B. 8 went into effect two months ago, it has worked as intended, all but shutting down abortions in Texas. The law makes it too risky, and too potentially financially ruinous, for clinics to operate, so it hasn’t been tested in state court, and in any event a state suit wouldn’t serve to block the law beyond that individual case. Meanwhile, under rulings from the conservative federal appeals court that covers Texas, the federal courts have been closed off to constitutional challenges.

As the solicitor general’s brief summed it up, Texas purposely “sought to create a situation where pregnant women have no access to constitutionally protected abortion care and no mechanism whatsoever to challenge that obvious violation of their constitutional rights.”

The justices are hearing two efforts to block the law, one from Texas abortion providers, the other from the Biden administration. The immediate question isn’t whether the six-week ban is constitutional, but whether either of these parties has the right to go to federal court to have it blocked.

Oct. 30

 

Donald J. Trump, left, and William Barr (Justice Department photo in March 2019).

Donald J. Trump, left, and William Barr (Justice Department photo in March 2019).

Palmer Report, Opinion: The Durham probe is finally backfiring on Donald Trump, Bill Palmer, right, Oct. 30, 2021. When Donald Trump and his Attorney General bill palmerBill Barr tasked John Durham, below right, with criminally investigating the origins of the Trump-Russia investigation, Palmer Report predicted that it wouldn’t end up helping Trump one bit. Sure enough, the probe went nowhere, found nothing, and changed zero minds heading into the 2020 election.

But the Durham probe is still ongoing, having finally resulted in a single indictment against one person for lying to investigators. Given the bill palmer report logo headerlack of legitimate evidence in the indictment, it’s likely to end in dismissal or acquittal. In fact, the indictment has turned out to be so sketchy, it’s beginning to backfire.

Remember the story about a computer server at Trump Tower that was communicating almost solely with Russia’s Alfa Bank? There john durham Customhave been so many different connections between Donald Trump and Russia, you may have forgotten that the server scandal even existed. But because the Durham indictment falsely claimed that the original authors of that article didn’t believe in their own work, they’re now coming forward to reiterate that they do indeed stand by their story.

This gives you an idea of just how absurd this indictment is; it’s based on the false claim that a group of journalists didn’t believe their story, and that someone else was therefore lying when he told federal investigators otherwise. Yeah, this is now pretty obviously alpha bank logo russiaheading for acquittal.

But it’s also served to pushed the Trump server – Alfa Bank story back into the headlines, including a major expose on the Rachel Maddow show last night. Thus far the only thing the Durham probe has done, aside from temporarily making life unfairly difficult for one indicted and pretty clearly innocent guy, is to push the Trump-Russia scandal back into the headlines. That’s the last thing Trump wanted.

russian flag wavingOf course we’ve seen this over and over again. When Donald Trump was in office, he spent much of his time trying to prove to himself that his 2016 win was legitimate, because his fragile ego couldn’t handle the possibility that he only won because Russia helped him. Accordingly, the people around him like Bill Barr ended up focusing on doing things not aimed at helping him in any real way, but instead aimed at calming Trump’s insecurities.

As a result we ended up with things like the Durham probe, an investigation that was never, ever going to help Donald Trump in any tangible way. And while these latest revelations should finally give the DOJ a legal basis for shutting Durham down, it’s not as if his probe was helping Trump. At this point the Durham probe is only serving to make Trump’s life more difficult.

Oct. 29

ny times logoNew York Times, For First Time in Public, a Detainee Describes Torture at C.I.A. Black Sites, Carol Rosenberg, Updated Oct. 29, 2021. In a sentencing hearing, Majid Khan, a Pakistani who lived in suburban Baltimore before joining Al Qaeda, detailed dungeonlike conditions and abuse.

A suburban Baltimore high school graduate turned Al Qaeda courier, speaking to a military jury for the first time, gave a detailed account on Thursday of the brutal forced feedings, crude waterboarding and other physical and sexual abuse he endured during his 2003 to 2006 detention in the C.I.A.’s overseas prison network.

Majid Khan (Photo by Center for Constitutional Rights)Appearing in open court, Majid Khan, 41 (Photo by Center for Constitutional Rights), became the first former prisoner of the black sites to openly describe, anywhere, the violent and cruel “enhanced interrogation techniques” that agents used to extract information and confessions from terrorism suspects.

For more than two hours, he spoke about dungeonlike conditions, humiliating stretches of nudity with only a hood on his head, sometimes while his arms were chained in ways that made sleep impossible, and being intentionally nearly drowned in icy cold water in tubs at two sites, once while a C.I.A. interrogator counted down from 10 before water was poured into his nose and mouth.

Soon after his capture in Pakistan in March 2003, Mr. Khan said, he cooperated with his captors, telling them everything he knew, with the hope of release. “Instead, the more I cooperated, the more I was tortured,” he said.

The dramatic accounting capped a day in which eight U.S. military officers were selected to serve on a jury, which will deliberate Friday on his official sentence in the range of 25 to 40 years, starting from his guilty plea in February 2012.

ny times logoNew York Times, After Court Lifts Stay, Oklahoma Execution Is Said to Go Wrong, Adam Liptak, Oct. 29, 2021. The inmate convulsed and vomited as he was put to death. The Supreme Court also cleared the way for another execution next month.

The Supreme Court on Thursday lifted a stay of execution that a federal appeals court had granted to two Oklahoma death row inmates, clearing the way for the men to be put to death by lethal injection.

One of them, John Marion Grant, who was convicted of murdering a prison cafeteria worker in 1998, was executed on Thursday, a few hours after the Supreme Court ruled.

Like other executions in the state, this one — the first in six years — did not go smoothly, The Associated Press reported. Mr. Grant, who was strapped to a gurney, convulsed and vomited as the first chemical, a sedative, was administered. After several minutes of this, members of the execution team wiped vomit from his face and neck.

The Oklahoma Department of Corrections said the execution was carried out in accordance with protocols and “without complication.”

Mr. Grant and the other inmate, Julius Jones, had argued that the state’s lethal injection protocol, which uses three chemicals, could subject them to excruciating pain.

They also objected on religious grounds to a requirement imposed by a trial judge that they choose among proposed alternative methods of execution, saying that doing so would amount to suicide.

washington post logoWashington Post, Elizabeth Prelogar confirmed as solicitor general ahead of Supreme Court battles over abortion, guns, Ann E. Marimow, Oct. 29, 2021 (print ed.). The Senate on Thursday confirmed Elizabeth B. Prelogar as solicitor general, the federal government’s top advocate at the Supreme Court.

Prelogar, a veteran appellate attorney, is the second woman to hold the position and will lead the office at a time when the high court is weighing hotly contested issues, including abortion and gun rights in just the next week.

Following her confirmation on a vote of 53 to 36, Prelogar will be in position Monday to represent the Biden administration at the Supreme Court in its challenge to the nation’s most restrictive abortion law, which bars the procedure in Texas after about six weeks into pregnancy.

Prelogar was an adviser to special counsel Robert S. Mueller III during his investigation of Russian interference in the 2016 election. She previously served in the solicitor general’s office and has argued nine times before the Supreme Court, including twice last year.

In addition to presenting the government’s views at the high court, the solicitor general is responsible for the department’s appellate strategy and for deciding whether the government will support a particular side in cases where the federal government has an interest.

In political spotlight, Supreme Court embarks on extraordinarily controversial term

Prelogar is a former law clerk to Justices Ruth Bader Ginsburg and Elena Kagan, the first woman to serve as solicitor general. Before that, Prelogar was a law clerk for Attorney General Merrick Garland during his tenure as a judge on the appeals court in D.C.

From January until her nomination in August, Prelogar had held the solicitor general’s post on an acting basis.

washington post logoWashington Post, In Supreme Court battle over N.Y. gun law, a surprising split for conservatives, Ann E. Marimow, Oct. 29, 2021 (print ed.). The lawsuit, which is backed by the National Rifle Association, seeks to overturn a law restricting who can carry concealed firearms in public. Seven states have similar laws.

When the Supreme Court first declared an individual right to gun ownership more than a decade ago, the court’s conservative majority relied on founding-era legal history to invalidate a D.C. law banning firearm possession in the home.

An even more conservative court is poised to scrutinize on Wednesday the follow up question left unanswered since 2008: To what extent do Americans have a constitutional right to carry loaded, concealed firearms outside the home and in public places?

nra logo CustomAlthough some observers say it seems likely that the court took the National Rifle Association-backed lawsuit to overturn a century-old New York state law, which is similar to restrictions in seven other states, there is a surprising split among conservative judges and legal analysts that could influence how broadly the justices rule.

Justice Antonin Scalia’s 2008 decision in District of Columbia v. Heller drew fire from some conservatives who said the court was creating an individual right to gun ownership that it was not clear the Constitution granted. Judge J. Harvie Wilkinson, a Reagan appointee on the U.S. Court of Appeals for the 4th Circuit, fueled the controversy with a law review article calling the Heller majority “guilty of the same sins” as the Supreme Court that found a right to abortion in Roe v. Wade.

Similarly, a conservative judge on the 9th Circuit recently wrote for the court an opinion that upheld Hawaii’s gun restrictions, pointing to “overwhelming” historical evidence that there has never been an “unfettered right” to carry firearms in public. In the New York case, a retired conservative judge joined former officials who served in Republican administrations to write an amicus brief supporting the state, saying the right to carry guns outside the home “has historically been restricted in many public places.”

Two gun owners who are challenging the law and are represented by former solicitor general Paul Clement also assert that historical evidence “overwhelmingly confirms” that the Second Amendment protects the right to carry firearms outside the home for self-defense and other lawful purposes.

With both sides claiming a historical upper hand, the case also underscores the limits of relying on the past to review modern laws.

Oct. 23 

 

Trump-supporting former law school dean John Eastman, left, helps Trump attorney Rudy Giuliani inflame pro-Trump protesters in front the White House before the insurrection riot at the U.S. Capitol to prevent the presidential election certification of Joe Biden's presidency on Jan. 6, 2021 (Los Angeles Times photo). Trump-supporting former law school dean John Eastman, left, helps Trump attorney Rudy Giuliani inflame pro-Trump protesters in front the White House before the insurrection riot at the U.S. Capitol to prevent the presidential election certification of Joe Biden's presidency on Jan. 6, 2021 (Los Angeles Times photo).

washington post logoWashington Post, Investigation: Ahead of Jan. 6, Willard hotel in downtown D.C. was a Trump team ‘command center’ for effort to deny Biden the presidency, Jacqueline Alemany, Emma Brown, Tom Hamburger and Jon Swaine, Oct. 23, 2021. They called it the “command center,” a set of rooms and suites in the posh Willard hotel a block from the White House where some of President Donald Trump’s most loyal lieutenants were working day and night with one goal in mind: overturning the results of the 2020 election.

The Jan. 6 rally on the Ellipse and the ensuing attack on the Capitol by a pro-Trump mob would draw the world’s attention to the quest to physically block Congress from affirming Joe Biden’s victory. But the activities at the Willard that week add to an emerging picture of a less visible effort, mapped out in memos by a conservative pro-Trump legal scholar and pursued by a team of presidential advisers and lawyers seeking to pull off what they claim was a legal strategy to reinstate Trump for a second term.

They were led by Trump’s personal lawyer Rudolph W. Giuliani. Former chief White House strategist Stephen K. Bannon was an occasional presence as the effort’s senior political adviser. Former New York City police commissioner Bernard Kerik was there as an investigator. Also present was John Eastman, the scholar, who outlined scenarios for denying Biden the presidency in an Oval Office meeting on Jan. 4 with Trump and Vice President Mike Pence.

The effort underscores the extent to which Trump and a handful of true believers were working until the last possible moment to subvert the will of the voters, seeking to pressure Pence to delay or even block certification of the election, leveraging any possible constitutional loophole to test the boundaries of American democracy.

ny times logoNew York Times, Internal Alarm, Public Shrugs: Facebook’s Employees Dissect Its Election Role, Ryan Mac and Sheera Frenkel, Oct. 23, 2021 (print ed. ).  Company documents show that employees repeatedly raised red flags about the spread of misinformation before and after the contested November vote; he internal dispatches reveal the degree to which Facebook knew of extremist movements and groups on its site that were trying to polarize American voters.

Sixteen months before last November’s presidential election, a researcher at Facebook described an alarming development. She was getting content about the conspiracy theory QAnon within a week of opening an experimental account, she wrote in an internal report.

On Nov. 5, two days after the election, another Facebook employee posted a message alerting colleagues that comments with “combustible election misinformation” were visible below many posts.

Four days after that, a company data scientist wrote in a note to his co-workers that 10 percent of all U.S. views of political material — a startlingly high figure — were of posts that alleged the vote was fraudulent.

In each case, Facebook’s employees sounded an alarm about misinformation and inflammatory content on the platform and urged action — but the company failed or struggled to address the issues. The internal dispatches were among a set of Facebook documents obtained by The New York Times that give new insight into what happened inside the social network before and after the November election, when the company was caught flat-footed as users weaponized its platform to spread lies about the vote.

washington post logoWashington Post, Investigation: Facebook documents show how platform fueled rage ahead of Jan. 6 attack on Capitol, Craig Timberg, Elizabeth Dwoskin and Reed Albergotti, Oct. 23, 2021 (print ed.). Thousands of internal documents turned over to the SEC show what Facebook knew about the growth of the Stop the Steal movement on its platform in the weeks before a pro-Trump mob overran the Capitol — and the anger that many employees felt at their company’s failure to stop the Jan. 6 violence.

Relief flowed through Facebook in the days after the 2020 presidential election. The company had cracked down on misinformation, foreign interference and hate speech — and employees believed they had largely succeeded in limiting problems that, four years earlier, had brought on perhaps the most serious crisis in Facebook’s scandal-plagued history.

facebook logo“It was like we could take a victory lap,” said a former employee, one of many who spoke for this story on the condition of anonymity to describe sensitive matters. “There was a lot of the feeling of high-fiving in the office.”

Many who had worked on the election, exhausted from months of unrelenting toil, took leaves of absence or moved on to other jobs. Facebook rolled back many of the dozens of election-season measures that it had used to suppress hateful, deceptive content. A ban the company had imposed on the original Stop the Steal group stopped short of addressing dozens of look-alikes that popped up in what an internal Facebook after-action report called “coordinated” and “meteoric” growth. Meanwhile, the company’s Civic Integrity team was largely disbanded by a management that had grown weary of the team’s criticisms of the company, according to former employees.

But the high fives, it soon became clear, were premature.

On Jan. 6, Facebook staffers expressed their horror in internal messages as they watched thousands of Trump supporters shouting “stop the steal” and bearing the symbols of QAnon — a violent ideology that had spread widely on Facebook before an eventual crackdown — thronged the U.S. Capitol. Many bashed their way inside and battled to halt the constitutionally mandated certification of President Biden’s election victory.

How one of America’s ugliest days unraveled inside and outside the Capitol
The face of President Donald Trump appears on large screens as supporters participate in a rally in Washington. (John Minchillo/AP)

Measures of online mayhem surged alarmingly on Facebook, with user reports of “false news” hitting nearly 40,000 per hour, an internal report that day showed. On Facebook-owned Instagram, the account reported most often for inciting violence was @realdonaldtrump — the president’s official account, the report showed.

Facebook has never publicly disclosed what it knows about how its platforms, including Instagram and WhatsApp, helped fuel that day’s mayhem. The company rejected its own Oversight Board’s recommendation that it study how its policies contributed to the violence and has yet to fully comply with requests for data from the congressional commission investigating the events.

But thousands of pages of internal company documents disclosed to the Securities and Exchange Commission by the whistleblower Frances Haugen offer important new evidence of Facebook’s role in the events. This story is based on those documents, as well on others independently obtained by The Washington Post, and on interviews with current and former Facebook employees. The documents include outraged posts on Workplace, an internal message system.

“This is not a new problem,” one unnamed employee fumed on Workplace on Jan. 6. “We have been watching this behavior from politicians like Trump, and the — at best — wishy washy actions of company leadership, for years now. We have been reading the [farewell] posts from trusted, experienced and loved colleagues who write that they simply cannot conscience working for a company that does not do more to mitigate the negative effects on its platform.”

Oct. 22

ny times logoNew York Times, Opinion: The Supreme Court Faces a Huge Test on Libel Law, Floyd Abrams, right, Oct. 22, 2021. Mr. Abrams is a prominent First Amendment lawyer whose many clients have included floyd abramsThe New York Times, which he successfully represented in the Pentagon Papers case. His firm represents The Times on occasion.

Next Friday, the United States Supreme Court is scheduled to meet to consider whether to hear appeals from two libel cases in which the plaintiffs seek to persuade the justices to reconsider the single greatest First Amendment victory for the press in American history.

Two of the court’s justices, Clarence Thomas and Neil Gorsuch, already have expressed a readiness to do just that, a disturbing turn that could weaken speech protections and threaten the country’s free and robust press.

Their focus is the court’s unanimous 1964 decision in the case of New York Times v. Sullivan, won by the paper in the midst of the civil rights revolution. The purported libel appeared in a full-page advertisement in The Times titled “Heed Their Rising Voices,” which criticized a “wave of terror” against civil rights demonstrators in the South led by the Rev. Dr. Martin Luther King Jr. (shown below left on the cover of one of his books.)

mlk why we cant wait coverMost of the assertions in the advertisement were accurate; a few were not. The police commissioner of Montgomery, Ala., L.B. Sullivan, who was not named in the ad, sued The Times, claiming it had in effect falsely accused him of misconduct. He was awarded $500,000 by an all-white jury, a verdict upheld by Alabama’s highest court.

For news organizations, the threat the case presented was not only sizable if not crippling libel judgments. It was also that such a result would deter reporting critical of government and public officials.

When the case reached the Supreme Court, the justices applied the First Amendment for the first time in a libel case. The core of the court’s ruling in reversing the Alabama judgment was that the First Amendment barred public officials from recovering damages for a “defamatory falsehood relating to his official conduct” in the absence of clear and convincing evidence that the statement was made with what the justices called “‘actual malice”— that it was made “with knowledge that it was false or with reckless disregard of whether it was false or not.”

Such sweepingly broad protection was required, the court concluded, because the First Amendment embodied a “profound national commitment to the principle that debate on public issues should be uninhibited, robust and wide-open, and that it may well include vehement, caustic and sometimes unpleasantly sharp attack on government and public officials.”

“Erroneous statement is inevitable in free debate,” the court added, and “must be protected if the freedoms of expression are to have the ‘breathing space’ that they need to survive.”

Later decisions by the court expanded the “actual malice” standard to apply to public figures outside government.

If Sullivan is overruled, defendants in libel cases will lose constitutional protections they now have, and the United States could well return to a libel regime akin to England’s. A return by the Supreme Court to anything like the English approach could significantly chill speech of the most important sort. That has happened disturbingly often in England.

The stark difference in approach between American and English libel law led Congress to unanimously pass legislation, signed by President Barack Obama in 2010, barring state or federal courts from enforcing foreign libel judgments against U.S. defendants that are not consistent with First Amendment protections as set forth in the Sullivan decision.

That law, the Speech Act, was adopted partly in response to a libel suit brought in London by a Saudi billionaire against an American author, Rachel Ehrenfeld, whose book Funding Evil: How Terrorism Is Financed and How to Stop It alleged that he had funded terrorism.

Ms. Ehrenfeld had credible sources for her assertions. But she declined to appear in court and submit to English jurisdiction, noting, as she later explained, that her book “was neither published nor marketed in Britain.” Libel law in England “chills free speech through the award of disproportionate damages” and leaves defendants with “a lack of viable defenses,” she wrote in The Times.

Should the court agree to hear one or both of the libel cases does not mean, of course, that either or both would be overruled. (The Times joined in an amicus brief in support of the defendant in one of those cases when it was before an appeals court.) But it is troubling that two of the court’s nine justices have criticized Sullivan and seem ready to overrule it. Only four votes are required for the full court to take up cases, and if it does so, a fifth would be needed for any ruling.

Oct. 21

djt steve bannon

Donald Trump, left, and Steve Bannon, who has been quoted as backing the idea of a Trump reinstatement, saying that the "return of Trump" will be in "2022 or maybe before."

washington post logoWashington Post, House votes to hold Bannon in contempt for refusing to comply with Jan. 6 subpoena, Felicia Sonmez, Marianna Sotomayor and Jacqueline Alemany, Oct. 21, 2021. Former White House chief strategist Stephen K. Bannon (shown above in a file photo) has argued through his attorney that he can’t respond to the subpoena because of executive privilege asserted by former president Donald Trump. The matter now goes to the Justice Department, which will decide whether to pursue the contempt referral.

U.S. House logoThe House voted Thursday to hold former White House chief strategist Stephen K. Bannon in criminal contempt of Congress for his refusal to comply with a subpoena issued by the committee investigating the Jan. 6 attack on the Capitol.

The measure was approved on a 229-to-202 vote, with nine Republicans joining all Democrats present in voting “yes.” Thursday’s full House vote comes days after the members of the bipartisan select committee voted unanimously in favor of the resolution.

Bannon has previously argued through his attorney that he can’t respond to the subpoena because of executive privilege asserted by former president Donald Trump.

Justice Department log circularThe matter now goes to the Justice Department, which will decide whether to pursue the contempt referral. Contempt of Congress is a misdemeanor criminal offense that can result in up to one year in prison and a fine of up to $100,000.

Asked at a House Judiciary Committee hearing Thursday how the Justice Department would handle such a referral, Attorney General Merrick Garland said it “will do what it always does in such circumstances — it will apply the facts and the law.”

Legal experts have cast doubt on the merit of Bannon’s defense of his defiance of the subpoena and say the former president’s immunity from congressional subpoena extends only to his closest White House advisers — and not to private citizens like Bannon.

Trump’s sweeping claims of executive privilege to shield his activities and his aides and allies from congressional scrutiny have also been questioned by constitutional experts and lawyers.

Trump filed a 26-page lawsuit on Monday to block the House committee from receiving records for its inquiry from the National Archives, arguing that the committee’s document request serves no legislative purpose, that it undermines Trump’s executive privilege, and that the committee has provided Trump’s legal team with insufficient time to review the records requests.

 

Trump-supporting former law school dean John Eastman, left, helps Trump attorney Rudy Giuliani inflame pro-Trump protesters in front the White House before the insurrection riot at the U.S. Capitol to prevent the presidential election certification of Joe Biden's presidency on Jan. 6, 2021 (Los Angeles Times photo). Trump-supporting former law school dean John Eastman, left, helps Trump attorney Rudy Giuliani inflame pro-Trump protesters in front the White House before the insurrection riot at the U.S. Capitol to prevent the presidential election certification of Joe Biden's presidency on Jan. 6, 2021 (Los Angeles Times photo). 

Wayne Madsen Report, Investigative Commentary: Move over Watergate, here comes Willardgate, Wayne Madsen (left, author of 21 books, including the forthcoming Trump's Fourth Reich, widely published commentator and former Navy intelligence officer), Oct. 21, 2021. Long the king of Washington wayne madsen may 29 2015 cropped Smallpolitical scandals, the Watergate office, residential, and hotel complex stands to be eclipsed by "Willardgate."

Watergate lent its name to countless other political "gate" scandals due to its being the location where the Democratic National Committee headquarters was burglarized by Richard Nixon re-election henchmen, an act that ultimately brought down the administration of Richard Nixon. Willardgate, however, may replace Watergate as the granddaddy of all DC scandals because, as with Guy Fawkes Day in England, Willardgate has become synonymous with "Treason and Plot."

wayne madesen report logoThe Willard Hotel, which is a mere few blocks from the White House and lies in-between the Executive Mansion and the Trump International Hotel, was the scene of a January 6th eve "War Council" meeting involving top Trump advisers. Documents subpoenaed by the House Select Committee on the January 6th insurrection point to the Willard War Council as planning the storming of the Capitol the next day in order to delay or suspend the certification of Joe Biden's presidential election victory.

It is also becoming clearer that the Willard Hotel served as a nexus between the Oval Office and insurrection perpetrators, many of whom were staying at Trump's hotel, with a few others at the J.W. Marriott Hotel, which is across 14th street from the Willard. The Willard apparently acted as a relay point for a "sneaker net" in order to limit the electronic communications of the conspirators. E-mail and phone call records could and would be made available to law enforcement as "smoking gun" evidence if the plotters' plan failed, which, of course, it did.

There is a major difference between how the Watergate and Willard have gone down in American history. The Watergate scandal demonstrated that the Nixon White House was not above the law and the affair ultimately cost Nixon his presidency. Willardgate, on the other hand, has thus far shown that Trump may get away with almost having carried out a coup.

Justice Department logo

ny times logoNew York Times, Garland Parries Pressure From Both Sides in Congressional Testimony, Katie Benner, Oct. 21, 2021. Appearing before the House Judiciary Committee, the attorney general sidestepped questions from Democrats about the Jan. 6 investigation and batted away criticism from Republicans.

Attorney General Merrick B. Garland sidestepped questions from Democrats in Congress on Thursday about whether the Justice Department would back their latest efforts in the investigation of the Jan. 6 Capitol attack. He also batted away criticism from Republicans that he had politicized the department’s response to threats of violence stemming from the debate over how racial issues are taught in schools.

In his first oversight hearing as attorney general, Mr. Garland told the House Judiciary Committee that the special counsel appointed by the Trump administration to scrutinize the Russia investigation, John H. Durham, had his budget approved for another year, indicating that his work was ongoing. And Mr. Garland confirmed that the department’s tax-related investigation of President Biden’s son Hunter Biden was continuing.

He declined to provide any details, citing department regulations against speaking about cases while they are still open.

Mr. Garland used his opening statement to walk lawmakers through the work done over the past several months to address what he considers the department’s top priorities: upholding the rule of law, keeping the country safe and protecting civil rights.

Democrats and Republicans largely ignored his overview and focused instead on issues that could resonate in next year’s midterm elections, including investigations into actions of former President Donald J. Trump and the role of race and other contentious topics in school curriculums.

Mr. Garland was confronted by Republicans about his position that the Justice Department would respond to violence and threats of violence directed at school board members who have come under fire amid the national debate over school curriculum.

Republicans roundly attacked him over a memo that he issued this month that said the department would respond to the “disturbing spike in harassment, intimidation and threats of violence against school administrators, board members, teachers and staff” in public schools by prosecuting those crimes when appropriate.

Some Republican lawmakers noted that Mr. Garland issued the memo soon after public school leaders asked Mr. Biden to address safety issues that had arisen amid the fight over how to teach students about racial inequality and injustice, suggesting that the timing of the memo seemed to have been directed by the White House.

Mr. Garland said he had not issued the memo at the behest of Mr. Biden.

Other Republicans said the memo had the effect of intimidating parents who expressed concerns about schools and asked whether Mr. Garland intended to deploy the F.B.I. to school board meetings.

“I have no intention of policing school board meetings,” Mr. Garland said. He said that the F.B.I. would not police schools or intimidate parents, and he noted that the memo did not authorize such actions.

Teaching about race and racism has emerged as an issue that has energized social conservatives, as have matters such as how schools recognize gender and pandemic-era health and safety policies.

While Democrats asked questions on gun control, inhumane prison conditions, hate crimes against Asian Americans and voting rights, many of them focused on the Justice Department’s willingness to enforce subpoenas issued by the House select committee investigating the Jan. 6 attack on the Capitol.

Mr. Garland was questioned hours before the House voted to hold Stephen K. Bannon in contempt for refusing to comply with the select committee’s subpoena. Mr. Bannon, who stepped down as a top White House adviser in 2017 but continued to counsel Mr. Trump, has declined to provide documents or testimony to the committee, citing executive privilege.

The next step in the conflict is for the U.S. attorney in Washington to decide whether to enforce the subpoena.

Mr. Garland declined to say whether the Justice Department would enforce the subpoena against Mr. Bannon or to give his view on how and when the department enforces congressional subpoenas.

“The Department of Justice will do what it always does in such circumstances,” Mr. Garland said. “We’ll apply the facts and the law and make a decision, consistent with the principles of prosecution.”

The Justice Department’s enforcement decision will have broad implications for the principle of executive privilege, as the courts have not definitively ruled on whether a president’s conversations with private citizens can be protected under such a privilege claim. And it will have pragmatic implications for the select committee, since the outcome for Mr. Bannon could influence other witnesses who have not yet complied with the panel’s subpoenas.

There are at least two Justice Department opinions that generally bar prosecutors from enforcing such subpoenas against executive branch officials when a president has invoked privilege.

Oct. 19

ny times logoNew York Times, In Two Rulings, Supreme Court Bolsters Legal Shield for Police, Adam Liptak, Oct. 19, 2021 (print ed.). The unsigned decisions, without noted dissents, indicated that the court continued to support the widely criticized doctrine of qualified immunity.

In two unsigned decisions without noted dissents, the Supreme Court on Monday ruled in favor of police officers accused of using excessive force. The rulings were a signal that the court continues to support the doctrine of qualified immunity, which can shield police misconduct from lawsuits seeking damages.

The doctrine has been the subject of criticism across the ideological spectrum, and it became a flash point in the nationwide protests last year over police brutality, with activists and lawmakers calling for its reconsideration.

The doctrine requires plaintiffs to overcome a daunting hurdle. They must not only show that the official accused of misconduct violated a constitutional right, but also that the right had been “clearly established” in a previous ruling. The Supreme Court has generally required a tight factual fit between an earlier ruling and challenged conduct.

Critics of the doctrine were heartened by two rulings this year that called on appeals courts to reconsider rulings in favor of corrections officers accused of mistreating prisoners. One prisoner was held in what the court called “shockingly unsanitary cells,” and the other was sprayed in the face with a chemical “for no reason at all.”

Oct. 16

ny times logoNew York Times, Opinion: This Justice Is Taking Over the Supreme Court, and He Won’t Be Alone, Jill Abramson, Oct. 16, 2021 (print ed.). Jill Abramson is a former executive editor of The New York Times and a co-author of a book on the politics of Clarence Thomas’s nomination to the Supreme Court.

clarence thomas HRAfter he took his seat on the U.S. Supreme Court 30 years ago this month, Justice Clarence Thomas, right, assured his law clerks, “I ain’t evolving.”

What he meant was that he would not soften his sharp conservative edges or change ideological stripes as did some of his fellow justices, including Harry Blackmun and David Souter.

Justice Thomas has certainly kept his vow. Indeed, some legal analysts say he is the most consistently conservative member of the court since the 1930s. He has written a raft of concurring and dissenting opinions that are so far to the right that it is common for him to issue them solo, without any of his colleagues signing on.

Now, with a new term underway, what is remarkable is the extent to which the Supreme Court, with the addition of three Donald Trump nominees who create a 6-to-3 conservative majority, seems to be reshaping itself in Justice Thomas’s image. With hot-button social issues on the docket, including gun rights, abortion rights and religious freedom, as well as a decision on whether to hear another big affirmative action case, we may be witnessing the emergence of the Thomas court.

Oct. 15

washington post logo

Washington Post, Analysis: Progressives may not love what Biden’s Supreme Court commission has to say, Theodoric Meyer and Jacqueline Alemany, Oct. 15, 2021 (print ed.). That's because the commission isn't actually charged with making recommendations, according to the White House. Instead, the draft report is expected to include “an appraisal of the merits and legality of particular reform proposals.”

Progressives who want President Biden's Supreme Court commission to endorse dramatic changes to the court — including upping the number of justices from nine to 13 — may be disappointed this afternoon when its draft report is released to the public.

That's because the commission isn't actually charged with making recommendations, according to the White House. Instead, the draft report is expected to include “an appraisal of the merits and legality of particular reform proposals.” Biden won’t weigh in on the draft until it becomes final next month, White House press secretary Jen Psaki said Wednesday.

Nearly a year ago, Biden pledged to create the commission as a way to buy himself time with progressives pushing him to expand the court as Republicans rushed to fill the Supreme Court seat vacated by Justice Ruth Bader Ginsburg's death weeks before the 2020 election, even though Republicans blocked Merrick Garland from getting a hearing four years earlier.

Since Biden fulfilled his promise in April, liberal activists have been trying to convince the commission expanding SCOTUS is the only way to restore balance to it.

“In my over 40 years as head of [the progressive advocacy group Alliance for Justice], I would never before have thought I would be sitting before this Commission advocating for court expansion,” Nan Aron told the commission in July. “It is not something I ever contemplated. But I believe that at this point, there is truly no other choice.”

But the 36-member commission has spent relatively little time discussing court expansion — “court-packing,” to its opponents — in its public meetings this year.

robert bauerInstead, the commission — co-chaired by Bob Bauer, right, a former Obama White House counsel, and Cristina Rodríguez, a former deputy assistant attorney general in the Obama administration — has heard testimony from dozens of experts on a variety of other proposals.

Several law professors made the case for allowing justices to serve only 18 years on the court before taking on reduced roles — an idea Bauer himself has endorsed in the past.

“My sense was that the 18-year idea does have some traction,” Akhil Reed Amar, a Yale law professor who's argued for Supreme Court term limits for nearly two decades and who testified before the commission in July. “Many of the other proposed reforms I thought met with much more skepticism, like court packing.”

Oct. 14

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Proof via Substack, Investigation and Commentary: Revelation Involving January 2 Call Between Trump and Insurrectionist Leaders Confirms That Trump Coordinated seth abramson graphicthe January 6 Coup Personally, Seth Abramson, left, Oct. 13-14, 2021 (excerpt continued below). In view of this new information, there can no longer be any doubt that the former president (shown above at the White House in a file photo), his lawyers, and top White House advisers were intimately involved in coordinating the chaos of January 6.

seth abramson proof logoIntroduction: As Proof has previously reported, on January 2, 2021—just 96 hours before the attack on the Capitol—then-president Donald Trump held a conference call with hundreds of Republican state legislators to communicate to them how key they were to his plot to overturn the 2020 presidential election. He wanted them to de-certify Joe Biden’s slates of electors in six battleground states, and to do so quickly enough that it would give Vice President Mike Pence a slender pretext to prorogue Congress and postpone the certification of Biden’s 2020 election win, which was then scheduled for January 6.

New details about that call now put it at the heart of Trump’s coup conspiracy, and reframe dramatically the stunning January 4 Oval Office meeting—between Trump, Pence, and Trump attorney John Eastman—that Proof reported on this past Monday.

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: Trump has his own "deep state" and it's more dangerous than any other, Wayne Madsen, left, Oct. 14, 2021. Donald wayne madsen may 29 2015 cropped SmallTrump and his acolytes are often complaining about the "deep state."

When asked to describe their "deep state," Trumpists are unable to provide a coherent answer. Some spew forth the stock villains often cited by wayne madesen report logothe far-right: the CIA, the Federal Reserve, the Vatican, George Soros, the Illuminati, the Bilderberg Group, the globalists, and, of course, their traditional target, the Jews.

The one thing that is standard practice with Trump and his supporters is their use of projection, accusing others of what they, themselves, do. And when it comes to charges that the deep state is out to get them, they fail to mention that a much-more clearly defined deep state supports Trump and his anti-democratic goals to destroy the constitutional order of the United States and replace it with a pluto-theocracy. How do we know about Trump's deep state? We have the list of its members.

washington post logoWashington Post, Jan. 6 committee preparing to aggressively enforce subpoenas, Jacqueline Alemany and Tom Hamburger, Oct. 14, 2021 (print ed.). Lawmakers on the panel said they are prepared to pursue charges against witnesses such as Stephen K. Bannon who have balked at cooperating, and they may issue a subpoena as early as Wednesday to a Trump Justice Department official.

The House select committee investigating the Jan. 6 attack on the Capitol is planning to ramp up its efforts to force Trump administration officials to comply with its subpoenas as the former president attempts to stymie the inquiry.

jeffrey clark oLawmakers who sit on the panel said they are prepared to pursue criminal charges against witnesses like Stephen K. Bannon who have balked at cooperating. And the committee may issue a subpoena as early as Wednesday to Jeffrey Clark, right, a Trump Justice Department official who sought to deploy department resources to support former president Donald Trump’s false claims of massive voting fraud in the 2020 election.

What happens to the Trump advisers who don’t comply with subpoenas?

“We are completely of one mind that if people refuse to respond to questions without justification that we will hold them in criminal contempt Justice Department log circularand refer them to the Justice Department,” Rep. Adam B. Schiff (D-Calif.), a member of the panel, said in an interview Tuesday.

Tensions over compliance with subpoenas are increasing as the committee’s plan to hold depositions this week with Bannon and three other Trump administration officials — former chief of staff Mark Meadows, former deputy chief of staff Dan Scavino and Kash Patel, who was serving as chief of staff to the acting defense secretary on Jan. 6 — is already facing head winds.

Negotiations between Clark’s legal team and the committee did not proceed as rapidly as the committee hoped, according to a person familiar with the conversations who spoke on the condition of anonymity to discuss the sensitive talks. As a result, the committee is contemplating issuing a subpoena, this person said.

Oct. 13

 

The Future of Freedom Foundation, Opinin: Why the Mainstream Media Remains Silent on the JFK Records Deadline, Jacob G. Hornberger, right, Oct. 13, 2021. With the jacob hornberger newOctober 26 deadline only two weeks from now on releasing the 60-year secret records of the CIA relating to the Kennedy assassination, the silence from the mainstream press is deafening.

The great mainstream defenders of transparency and openness in government, at least when it comes foreign dictatorships, cannot bring themselves to openly advocate for the release of thousands of records relating to the JFK assassination that the CIA still insists on keeping secret.

Why the silence? I will explain the reason, but first please permit me to restate the prediction I have made regarding this matter.

I predict that within the next weeks, President Biden will grant a request by the CIA for continued secrecy of its assassination-related records. I predict that Biden will order the release of some of the records for appearance’s sake, but he will cite “national security” to justify continuing the secrecy of the vast majority of the records.

Why do I make this prediction? Because the reason that the CIA needed to keep these records secret 60 years ago still exists. That same reason was why it it future of freedom foundation logo squareneeded to keep them secret during the 1990s, when the Assassination Records Review Board was enforcing the JFK Records Act of 1992, which mandated the release of all federal records relating to the assassination.

Further, that same reason obviously caused the CIA, despite the law’s mandate, to continue keeping its records secret for another 25 years after the JFK Records Act was enacted. When that deadline came due in 2017, that same reason obviously motivated the CIA to petition President Trump for another extension of time for secrecy, which Trump dutifully granted. That deadline comes due on October 26, 2021 — two weeks from now — and mark my words: The same reason will cause the CIA to request that Biden grant another extension of time for secrecy, which Biden, like Trump, will dutifully grant.

What is the reason that has caused the CIA to want to keep these thousands of records secret from the American people. The reason, I am more convinced than ever, is that the CIA knows that those remaining records constitute more pieces to the overall puzzle of criminal culpability on the part of the CIA in the regime-change operation that took place on November 22,1963.

cia logoAfter all, let’s face it: No matter what definition is put on that nebulous and meaningless term “national security,” there is no possibility that anything bad will happen to the United States if those 60-year-old secret records are released to the American people. The United States will not fall into the ocean. The supposed international communist conspiracy to take over the United States that was supposedly based in Moscow, Russia (yes, that Russia!) during the Cold War won’t be reinvigorated. Communist Cuba will not invade the United States. The dominoes near North Vietnam will not fall to the communists. North Korea will not come and get us.

President Biden just ordered the release of President Trump’s secret records relating to the January 6 Capitol protests. Why not the same joe biden resized odecision with respect to those 60-year-old secret records of the CIA relating to the Kennedy assassination?

Why won’t the mainstream press call on Biden to enforce the JFK Records Act of 1992? They’re scared to do so.

In a remarkably candid and direct statement made to MSNBC’s Rachel Maddow in 2017, New York Senator Charles Schumer explained why they are scared: “Let me tell you, you take on the intelligence community, they have six ways from Sunday at getting back at you,” Schumer said to MSNBC’s Rachel Maddow.

Schumer was referring to President Trump, but actually the admonition applies to everyone. The CIA, the Pentagon, the NSA, and the FBI — i.e., the entire intelligence community — has “six ways from Sunday at getting back” at anyone who takes it on, including newspaper owners, publishers, and editors.

Most people know about Operation Mockingbird, the top-secret operation of the CIA to acquire assets within the mainstream press to advance the CIA’s propaganda. Does anyone really think that the CIA would stop there in the quest to expand its power and influence?

dwight eisenhower mic speechNot a chance! For example, the entire national-security establishment would concentrate on acquiring, installing, and grooming assets in Congress, which sets the budgets. Does anyone think it’s just a coincidence that Congress gives the national-security establishment whatever it wants plus sometimes even more than what it wants? There is good reason why President Eisenhower planned to use the term “military-industrial-congressional” complex in his Farewell Address (shown at right). No one can reasonably deny that Congress is owned lock, stock, and barrel by the national-security establishment.

But they obviously would not stop there. They would also be acquiring assets within the IRS, one of the most powerful and tyrannical agencies within the federal government. There isn’t anyone, including newspaper owners, publishers, and editors, who isn’t afraid of receiving an audit notice from the IRS.

irs logoAnd if it happens, no one would ever be able to prove that it originated with the CIA or the rest of the national-security establishment. It would just look like it was occurring at random. If any victim of an IRS audit accused the CIA or the rest of the national-security establishment of being behind the audit, they would be ready to hurl the infamous “conspiracy theorist” label at him.

What newspaper owner, publisher, or editor wants to take that chance? They all know that the national-security establishment frowns very seriously on any mainstream media outlet that even remotely suggests that the Kennedy assassination was a regime-change operation, no different in principle from those in Iran, Guatemala, Cuba, Congo, and Chile both before and after the Kennedy assassination. But they also do not want to take the chance of upsetting the CIA by simply calling on it to release its 60-year-old still-secret records relating to the assassination.

After all, everyone knows that if an entity is powerful enough to regime-change presidents and prime ministers, both foreign and domestic, with impunity, it can easily destroy any mainstream media executive who dares to buck the CIA on the assassination.

It’s just the way life works in a national-security state. It’s why the mainstream media is maintaining strict silence on the upcoming October 26 deadline on the release of those 60-year-old still-secret records of the CIA relating to the Kennedy assassination.

Oct. 11

Proof via Substack, Investigative Commentary: If You Know Who Steve Bannon's Lawyer Is, You Understand How Closely Trump Is Linked to the Cover-Up of His Own seth abramson graphicRole in the January 6 Conspiracy, Seth Abramson, left, Oct. 10-11, 2021. Suspicious, possibly corrupt conduct by lawyer Robert Costello confirms Trump is doing more than using public declarations to obstruct the January 6 investigation—he's using his usual backroom ploys.

seth abramson proof logoIntroduction: Perhaps no top Donald Trump adviser was more important to the former president’s January 6 attack on our democracy than Steve Bannon. Whereas Kimberly Guilfoyle, Katrina Pierson, and Peter Navarro acted as adjuncts to Trump’s will, Bannon’s role was to shape it—to give his patron a vision of what was possible if he’d simply cease thinking (or continue not to think) of the future of the United States or its rule of law.

We know Bannon is a white supremacist. We know his “War Room” podcast, which YouTube has banned for spreading disinformation, also preaches sedition. We know Bannon was one of Trump’s top advisers in the run-up to the January 6 terror attack on the U.S. Capitol. We know that, in exchange for aiding Trump in his illicit efforts to overturn the 2020 election, Bannon earned himself a presidential pardon for federal fraud charges involving him allegedly “conspiring to cheat hundreds of thousands of donors by falsely promising that their money had been set aside for new sections of [Trump’s border] wall….The fund-raising effort collected more than $25 million, and prosecutors said Bannon used nearly $1 million of it for personal expenses. Despite the populist aura he tries to project, Bannon is known to enjoy the high life, and he was arrested on a $35 million, 150-foot yacht belonging to one of his business associates, fugitive Chinese billionaire Guo Wengui.”

We know that Bannon recently revealed, in a conference call with GOP leaders, a plan to “control this country” via “20,000 shock troops”—neo-fascists personally recruited by Bannon and ready to seize control of America’s ship of state as soon as the GOP is again in power.

And we know that Bannon now claims the power to defy Congressional subpoenas, with his fig-leaf in asserting this unprecedented right being the absurd declaration that anyone who speaks to a president is protected from ever having to reveal what was said in such a conversation—whether or not they were a member of the federal executive branch when the conversation occurred. It’s rank nonsense, of course (and dangerous nonsense, at that).

But what Americans must now understand is how closely coordinated with Trump Bannon’s defiance of U.S. law appears to be—and how vital to Trump’s own interests it is that Bannon remain quiet, given the white supremacist Trump adviser’s infamous Insurrection Eve claim that “all hell is going to break loose [on January 6].”

Robert Costello Is Either Donald Trump’s Lawyer or the Equivalent

On December 11, 2020, the then-under-indictment Bannon hired Robert J. Costello as his criminal defense lawyer. Thirteen months earlier, in November 2019, Costello had been hired by Donald Trump’s attorney Rudy Giuliani, who was then facing—and still faces—a federal criminal investigation of his own.
It took under six weeks for Trump’s lawyer’s lawyer to get Trump to pardon Bannon.

You might think that Bannon’s ease in getting a pardon from Trump was due in part to him working for Trump as an adviser during the period he was seeking that pardon, and you’d be right.

But what you might not realize is that Bannon’s connection to Trump came not just in phone calls with the then-president or meetings with the president’s attorney, but via his own lawyer Robert Costello—who, it turns out, is effectively Trump’s advocate as much as he is Bannon’s. And Costello doesn’t just seem to work for Trump, his specific task appears to be getting men who have dirt on Trump to stay quiet in exchange for Trump’s aid.

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).

Oct. 10

washington post logoWashington Post, Opinion: One more time Trump tried to undo the will of the voters, Ruth Marcus, right, Oct. 10, 2021 (print ed.). Jeffrey Clark asked the attorney ruth marcus twitter Customgeneral for a lift on the way to topple him.

It was Sunday evening, Jan. 3. Clark, a previously obscure Justice Department official, had caught President Trump’s eye as a willing accomplice in seeking to overturn the election results — a role that Jeffrey Rosen, the acting attorney general, had shown he was unwilling to play.

So Trump, meeting with Clark behind Rosen’s back, had offered to install him in the top job. Clark, then the acting head of the civil division — and a colleague of Rosen’s stretching back decades in government and private practice — told Rosen he’d let him stay on, as the department’s number two.

Now, Rosen and Clark were headed to the White House for a hastily scheduled showdown with the president. Could Clark get a ride in the AG’s motorcade?

Justice Department log circular“Maybe this was ungracious of me, but I declined,” Rosen told Senate Judiciary Committee investigators in an interview transcript released Thursday.
Rosen calls Jan. 6 attack a ‘tragic episode in our nation's history’
Acting attorney general Jeffrey A. Rosen on Jan. 12 strongly condemned the U.S. Capitol attack, adding that the "wrongdoers will be held responsible." (The Justice Department)

The interviews, with Rosen and others, were included in a committee report that offers new details — some amusing, others chilling — of the slow-motion coup gathering steam inside the Trump administration even before the public insurrection of Jan. 6. The new material underscores the imperative of hearing from Clark himself. What did the president say to him in their private meetings? How did Clark get connected with Rep. Scott Perry, the Pennsylvania Republican who introduced him to Trump? Who else was involved? The last best hope of obtaining Clark’s testimony appears to be the House select committee investigating the Jan. 6 insurrection.

As outlined in the report, the White House meeting opened with Trump brazenly summarizing the choice before him. “One thing we know is you, Rosen, aren’t going to do anything to overturn the election,” Trump said, according to Rosen. Let that sink in: A sitting president, in the Oval Office no less, announcing that he wants an attorney general who will use the Justice Department to undo the will of the voters.

Specifically, Clark was willing to do what Rosen wouldn’t: send a letter to officials in Georgia — to be replicated with other contested states — declaring that the Justice Department had “taken notice” of “irregularities” in the election and calling on the state to convene a special session of the legislature. This was so preposterously outside the department’s purview that Rosen had summarily refused Clark’s entreaties. Clark, for his part, told Rosen that he’d turn down Trump’s offer to become attorney general if Rosen would simply send the letters himself.

Oct. 9

washington post logoWashington Post, Texas appeals court reinstates strict six-week abortion ban, two days after it was lifted, Ann E. Marimow, Oct. 9, 2021 (print ed.). Abortion care is a ‘calling’ for this Texas doctor. Now he faces a dilemma: Risk lawsuits, or quit.

A federal appeals court late Friday reinstated the nation’s most restrictive abortion law, which bars the procedure as early as six weeks into pregnancy with no exceptions for rape or incest.

The U.S. Court of Appeals for the 5th Circuit granted a request filed Friday afternoon by the Texas attorney general to temporarily suspend a judge’s order blocking the law, which has halted most abortions in the state.

Attorney General Ken Paxton (R) had asked the appeals court to reverse the injunction by U.S. District Judge Robert L. Pitman, who sided with the Biden ken paxton mugadministration Wednesday night and characterized the abortion ban as an “unprecedented and aggressive scheme to deprive its citizens of a significant and well-established constitutional right.”

A three-judge panel of the conservative-leaning court gave the Justice Department until 5 p.m. Tuesday to respond to the appeal.

Paxton, shown at left in a mug shot from a pending dispute, told the appeals court that the Justice Department has no legal authority to sue the state and said the appeals court must intervene immediately to lift the injunction.

The lower-court judge overstepped, Paxton said in his filing, by halting a law that is enforced by private citizens, not state government officials.

“A court ‘cannot lawfully enjoin the world at large’ let alone hold Texas responsible for the filings of private citizens that Texas is powerless to prevent,” the filing states.

It asked the court to rule on that issue by Tuesday morning and to temporarily suspend Pitman’s injunction “as soon as possible.”

The brief order from the 5th Circuit, issued about five hours after the appeal was filed, did not rule on the merits of the state’s request. Any decision from the 5th Circuit could put the issue back before the Supreme Court, which declined to block the law when it took effect Sept. 1 but said it raises serious constitutional questions.

In response to the appeals court's order Friday, Nancy Northup, president of the Center for Reproductive Rights, said: “The Supreme Court needs to step in and stop this madness. It’s unconscionable that the Fifth Circuit stayed such a well-reasoned decision that allowed constitutionally protected services to return in Texas."

For the nearly 48 hours that the ban was lifted, abortion providers were scrambling to decide whether to resume terminating pregnancies beyond the six-week mark — a point at which many patients do not yet know they are pregnant.

In his ruling late Wednesday, Pitman — a nominee of President Barack Obama — also took issue with the law’s enforcement mechanism, among other things.
Media News

Oct. 7

ny times logoNew York Times, Report Cites New Details of Trump Pressure on Justice Dept. Over Election, Katie Benner, Oct. 7, 2021 (print ed.). A Senate panel fleshed out how Donald Trump pursued his plan to install a loyalist as acting attorney general to pursue unfounded reports of fraud. It provides the most complete account yet of Mr. Trump’s efforts and describes how officials fought them off.

Even by the standards of President Donald J. Trump, it was an extraordinary Oval Office showdown. On the agenda was Mr. Trump’s desire to install a loyalist as acting attorney general to carry out his demands for more aggressive investigations into his unfounded claims of election fraud.

Justice Department log circularOn the other side during that meeting on the evening of Jan. 3 were the top leaders of the Justice Department, who warned Mr. Trump that they and other senior officials would resign en masse if he followed through. They received immediate support from another key participant: Pat A. Cipollone, the White House counsel. According to others at the meeting, Mr. Cipollone indicated that he and his top deputy, Patrick F. Philbin, would also step down if Mr. Trump acted on his plan.

Mr. Trump’s proposed plan, Mr. Cipollone argued, would be a “murder-suicide pact,” one participant recalled. Only near the end of the nearly three-hour meeting did Mr. Trump relent and agree to drop his threat.

Mr. Cipollone’s stand that night is among the new details contained in a lengthy interim report prepared by the Senate Judiciary Committee about Mr. Trump’s efforts to pressure the Justice Department to do his bidding in the chaotic final weeks of his presidency.

 

Trump-supporting former law school dean John Eastman, left, helps Trump attorney Rudy Giuliani inflame pro-Trump protesters in front the White House before the insurrection riot at the U.S. Capitol to prevent the presidential election certification of Joe Biden's presidency on Jan. 6, 2021 (Los Angeles Times photo). Trump-supporting former law school dean John Eastman, left, helps Trump attorney Rudy Giuliani inflame pro-Trump protesters in front the White House before the insurrection riot at the U.S. Capitol to prevent the presidential election certification of Joe Biden's presidency on Jan. 6, 2021 (Los Angeles Times photo). 

washington post logoWashington Post, Pro-Trump social media influencer pleads guilty to disorderly conduct in Capitol riot, Spencer S. Hsu, Oct. 7, 2021 (print ed.). Brandon Straka, 44, in a plea deal admitted to intending to disrupt certification of election results by impeding police and breaching a building.

A social media influencer who spoke at a pro-Donald Trump rally in Washington on Jan. 5 pleaded guilty Wednesday to disorderly conduct during the Jan. 6 Capitol riot.

Brandon Straka, 44, a former New York City hairstylist, admitted in plea papers to recording himself during the Capitol breach in front of a mobbed entrance, urging a crowd to wrest away a riot shield from a police officer and shouting: “Take it! Take it!”

At another point, according to plea papers, Straka stood behind a crowd of people trying to push their way in, yelling, “Go! Go!”

Straka, who launched the #WalkAway social media campaign, promoted himself as a gay former liberal and has encouraged voters to leave the Democratic Party.

He amassed more than 550,000 Twitter followers and became a Fox News contributor after posting a viral video in May 2018 describing why he left the Democratic Party.

Straka pleaded guilty to a misdemeanor punishable by up to six months in prison. Prosecutors dropped a felony count of impeding police during civil disorder. In a plea agreement, Straka promised to cooperate by turning over social media and other evidence and to participate in a law enforcement interview.
Straka is one of several Jan. 5 rally speakers and MAGA influencers to be arrested, and one of the first to plead guilty.

At a “Stop the Steal” rally at Freedom Plaza that day in Washington, Straka was a scheduled speaker where he addressed attendees as “patriots” and urged them to “fight back,” referred several times to revolution, the FBI said.

“We are sending a message to the Democrats, we are not going away, you’ve got a problem!” Straka said, according to the FBI.

Straka admitted his guilt in court and in a signed statement of facts. But on Facebook this week he addressed 357,000 followers as “Dear Patriots,” thanked them for their patience, and urged them to tune out “negative press . . . likely coming down the pike” as he took the first meaningful step toward concluding “the perils of the situation I am in.”

washington post logoWashington Post, Investigation: Secret trove illuminates the lives of billionaires: Buying influence, avoiding taxes, owning yachts, Peter Whoriskey and Agustin Armendariz, Oct. 7, 2021 (print ed.). While cash may be the traditional means of providing untraceable gifts to politicians, the very wealthy often turn instead to the offshore world to produce an alternative currency: companies registered in secrecy havens and stuffed with valuable assets.

When three of Africa’s wealthiest people wanted to win favors from the Nigerian oil minister, they didn’t pay cash, according to company filings and court papers describing the alleged transactions.

Instead, the oil tycoons arranged to influence her with shell companies, each one holding a valuable piece of London real estate, according to the documents.

icij logoOther shell companies owned by the oilmen provided the minister and her family with a chauffeured car, and they shipped her luxury furnishings worth hundreds of thousands of dollars, U.S. prosecutors later alleged.

With billions in Nigerian oil revenue at stake, the men engaged in “an international conspiracy,” according to U.S. prosecutors, offering millions of dollars’ worth of gifts in exchange for “lucrative business opportunities.”

While cash may be the traditional means of providing untraceable gifts to politicians, the very wealthy often turn instead to the offshore world to produce an alternative currency: companies registered in secrecy havens and stuffed with valuable assets.
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The tycoons who allegedly provided the oil minister with more than $17 million worth of gifts were, according to the court filings and documents, Olajide Omokore and Kolawole Aluko, both previously ranked by Forbes magazine as among the “richest people in Africa,” and Benedict Peters, a man who has been described by Bloomberg and African media as a billionaire.

Peters is identified by name in the Nigerian court filings and as “Co-Conspirator #2” in a forfeiture case by U.S. prosecutors. Through a spokesman, Peters denied dealing in improper benefits and his representatives wrote that one of the key pieces of evidence presented by Nigerian investigators is a “concoction malevolently contrived.” Attorneys for Omokore and Aluko declined to comment.

The world’s wealthiest are among the most avid users of offshore companies, a new cache of documents known as the Pandora Papers shows, and they turn to tax and secrecy havens for a variety of reasons.

The documents obtained by the International Consortium of Journalists (ICIJ) and shared with The Washington Post and journalists in 117 countries and territories around the world shed light on the Nigerian oil dealings and, in more breadth than was previously possible, the extent to which the world’s wealthy use offshore companies to conduct business.

ny times logoNew York Times, Damian Williams, an unassuming figure with stellar credentials, is now the most powerful federal law enforcement official in Manhattan, Benjamin Weiser, Oct. 7, 2021. On Tuesday, Mr. Williams, 41, right, was confirmed by the Senate to be the next United States attorney for the Southern District of New York — a position whose occupants have included future judges, senators, cabinet members and a New York City mayor. The appointment would make Mr. Williams the most powerful federal law enforcement official in Manhattan and, significantly, the first Black person to lead the storied 232-year-old office.

damian williams headshotThe Southern District handles some of the nation’s most complex fraud, terrorism and corruption cases, including prosecutions that reached former President Donald J. Trump’s inner circle. The office is preparing to try Ghislaine Maxwell, the longtime companion to Jeffrey Epstein, on sex-trafficking charges (she has pleaded not guilty), and it is investigating Rudolph W. Giuliani, the former New York City mayor, Trump lawyer and onetime Southern District U.S. attorney, over his dealings in Ukraine before the 2020 presidential election. He has denied wrongdoing.

Mr. Williams assumes the Southern District’s leadership roughly 16 months after the murder of George Floyd by a Minnesota police officer and the ensuing mass protests calling for an end to racism in the criminal justice system.

“Beyond his extraordinary qualifications, Damian is the right person at this time in history to be the U.S. attorney for Manhattan,” said Theodore V. Wells Jr., a Black partner at the law firm Paul, Weiss and one of the nation’s most prominent litigators.

“It’s important for both Blacks and whites to see a person of African-American descent — especially in this time where there’s so much social unrest — in that top job,” Mr. Wells said.

Another issue Mr. Williams will confront is diversity in his office: Of its 232 assistant U.S. attorneys and executives, only seven — including himself — are African American.

Mr. Williams’s ascent follows several years of tumult in the office, which has long guarded its independence from Washington, earning it the nickname the Sovereign District.

Two of the previous four top Southern District prosecutors were fired by the Trump administration, most recently last year when the office was rocked by the dismissal of Geoffrey S. Berman after Attorney General William P. Barr tried unsuccessfully to replace him with a political ally. The New York Times has also reported that Mr. Barr and other Justice Department officials tried to interfere with some of the office’s key cases and investigations.

Mr. Williams declined to comment for this article, which is based on interviews with more than two dozen of his former colleagues, defense lawyers and others who have known him for years.The five most radical right Republican justices on the U.S. Supreme Court are shown above, with the sixth Republican, Chief Justice John Roberts, omitted in this view.

The five most radical right Republican justices on the Supreme Court are shown above, with the sixth Republican, Chief Justice John Roberts, omitted in this photo array.

ny times logoNew York Times, Commentary: The Supreme Court’s Pain — and Our Anger, Linda Greenhouse (shown at right on the cover of her memoir, "Just a Journalist"), Oct. 7, 2021 (print ed.). In January 2001, the Supreme Court linda greenhouse cover just a journalistwas hurting. Thirty-six days after Election Day, on Dec. 12, 2000, the justices had divided 5 to 4 in its vote that stopped the Florida recount and effectively called the presidential election for the Republican candidate, George W. Bush.

 

In the ensuing weeks, with the court in a monthlong winter recess, justices on both sides of Bush v. Gore fanned out across the world to reassure the public, and perhaps themselves, that normal life at the Supreme Court would resume.

Two decades later, as a new Supreme Court term begins, the court is hurting again. The majority’s refusal a month ago to prevent Texas from shutting down access to legal abortion while lower courts weigh challenges to the state’s bizarre vigilante law — a law paused yesterday night by a federal judge — has once again turned a harsh public spotlight on a 5-to-4 division among the justices. And once again members of the court have taken to the road in defense of the institution’s ability to render impartial justice.

But there is a difference. The justices’ defensiveness comes with an edge. The conservatives appear to have deflected any impulse toward self-examination to a critique of how the media has covered the court’s recent actions. The problem isn’t the court, in other words, it’s those who presume to explain the court to the public.

Three polls within the past month show that fewer than a third of Americans want to see the court overturn Roe v. Wade. Yet it appears that only a third of the justices can be counted on to preserve the right to abortion as defined by the court’s current precedents. The culture war that brought us to this point may acquire another tangible manifestation as women unlucky enough to live in red states are forced to travel hundreds of miles from home to exercise what for 50 years was their constitutional right.

Oct. 4

ny times logoNew York Times, Opinion: The Supreme Court Has Gone Off the Rails, Donald Ayer (below at right, a U.S. attorney and principal deputy solicitor general in the Reagan administration and deputy attorney general in the George H.W. Bush administration), Oct. 4, 2021. The Supreme Court has final authority to make difficult judgment calls articulating the powers of government and the limits and constraints upon them.

To merit the public trust, these judgments must not appear donald ayer 2018simply as assertions of individual value choices by the justices or willy-nilly discard long-established court precedents that profoundly affect people’s lives. Nor should they actively undermine the ability of governments to advance public purposes as established by a fair democratic process.

As the court begins a new term, regrettably, its recent history suggests that it lacks a majority of justices with sufficient concern about the basic continuity and integrity of the law or the ability of government to function.

The evidence has been growing quietly in recent years — and then, last summer, quite loudly, when the court decided to twiddle its thumbs while Texas enacted an abortion law that practically bans nearly all procedures while evading timely judicial review.

This distressing turn of events has a special irony for me personally. In the 1980s, along with three of the current justices (John Roberts, Samuel Alito and Clarence Thomas), I participated in the Reagan revolution in the law, which inspired and propelled the careers of three other current justices (Brett Kavanaugh, Neil Gorsuch and Amy Coney Barrett).

The Reagan revolution pitted itself against “activist” judges who were seen as following personal whims by altering the law and creating rights not found in the Constitution. Through interpretive tools like textualism and originalism, the Reagan lawyers sought to make the law more predictable and steady — as articulated by John Roberts, the job of justices was “to call balls and strikes, and not to pitch or bat.”

That revolution, however, has morphed into what it was meant to curtail, as the expanding right-wing majority on the Supreme Court has relied on an array of innovative constitutional rights to undermine traditional governmental actions while discarding longstanding precedents with which they disagree.

washington post logoWashington Post, High court agrees D.C. not entitled to congressional voting representation, Meagan Flynn and Julie Zauzmer Weil, Oct. 4, 2021. The decision deflated hopes for some advocates who sought to secure representation for the city through the courts rather than through legislation.

Recent Court Headlines:

Oct. 3

supreme court resized 2021

washington post logoWashington Post, Supreme Court embarks on extraordinarily controversial term, Robert Barnes, Oct. 3, 2021 (print ed.). A new term for the court starts Monday, with its justices on the defensive, its actions and structure under a political microscope and abortion — the most divisive issue of them all — taking center stage.

The Supreme Court embarks Monday on what could be an extraordinarily controversial term, with its justices on the defensive, its actions and structure under a political microscope and abortion — the most divisive issue of them all — taking center stage.

Before the term ends next summer, the justices will have weighed in on three major public policy disputes — guns, religious rights and possibly race, if the court takes up a request to once again review affirmative action in university admissions.

stephen breyer full portraitAnother change on the court is possible: Justice Stephen G. Breyer, 83, left, nominated by President Bill Clinton, faces increasing pressure to retire while another Democrat is in the White House and the party has a tenuous hold on the Senate.

And a presidential commission on the Supreme Court, taking testimony on the court’s power and proposals to add seats to the court, limit justices’ lifetime tenure and require more transparency, is due to report to President Biden next month.

“The spotlight will be shining brighter on the court this term than perhaps any other since Bush v. Gore,” in 2000, said Pratik A. Shah, a Washington lawyer who argues before the Supreme Court.

And the background for it all will be the issue that has vexed the political and judicial branches for decades. Republican-led states and antiabortion activists are asking the court to overrule the constitutional guarantee of abortion it established nearly 50 years ago in Roe v. Wade, and reaffirmed 20 years later in Planned Parenthood v. Casey.

ny times logoNew York Times, Back on the Bench, the Supreme Court Faces a Blockbuster Term, Adam Liptak, right, Oct. 3, 2021. The court, which is dominated by six adam liptakRepublican appointees, will confront a charged docket, including a case asking it to overrule Roe v. Wade.

A transformed Supreme Court returns to the bench on Monday to start a momentous term in which it will consider eliminating the constitutional right to abortion, vastly expanding gun rights and further chipping away at the wall separating church and state.

The abortion case, a challenge to a Mississippi law that bars most abortions after 15 weeks, has attracted the most attention. The court, now dominated by six Republican appointees, seems poised to use it to undermine and perhaps overturn Roe v. Wade, the 1973 decision that established a constitutional right to abortion and barred states from banning the procedure before fetal viability.

Oct. 1

capitol riot jan 6 jose luis magana ap

Rioters wave flags in front of the U.S. Capitol. The Pentagon has faced scorching criticism for taking hours to deploy National Guard units to the Capitol on Jan. 6. | Jose Luis Magana/AP Photo

Wayne Madsen Report, Opinion: Members of the Supreme Court should be investigated for role in insurrection, Wayne Madsen, left, Sept. 30, 2021. At least two wayne madsen may 29 2015 cropped Smallmembers of the dominant Trump faction on the Supreme Court are worthy of being investigated for their possible roles in the January 6 insurrection at the U.S. Capitol.

Justice Samuel Alito was considered the "go-to" member of the court by one-time Donald Trump election challenge attorney Sidney Powell. wayne madesen report logoPowell, whose veracity on a number of issues has been shown to be severely lacking, may have acted out of character by revealing the game plan behind Trump's encouragement of his supporters halting the congressional certification of the Electoral College count on January 6.

Powell and John Eastman, another Trump election challenge attorney, as well as Representative Louie Gohmert (R-TX) were attempting to have Alito issue a Supreme Court emergency injunction halting the January 6 certification process by Congress under the provisions of the 12th Amendment of the Constitution.

Then there is Clarence Thomas. The role of his wife, Ginni Thomas, in promoting the January 6th events on her Facebook page, resulted in her apologizing to her husband's former law clerks.

If need be, Alito, Clarence Thomas, and his wife should be subpoenaed by the House Select Committee on January 6th. If they refuse, they should be charged with contempt of Congress and, of course, they can always just "tell it to the judge."

 washington post logoWashington Post, Alito defends letting Texas abortion law take effect, says Supreme Court critics want to intimidate justices, Robert Barnes and Mike Berardino, Oct. 1, 2021 (print ed.). Justice Samuel A. Alito Jr. on Thursday defended the Supreme Court’s actions in letting a controversial and restrictive Texas abortion law go into effect, and said criticism of the court’s recent decisions in emergency cases was an attempt to intimidate the justices.

samuel alito oIn a speech at the University of Notre Dame, the veteran conservative justice, left, lambasted the use of the term “shadow docket” to describe the emergency applications that come before the court, a process in place for years but which has increased in frequency.

“The catchy and sinister term ‘shadow docket’ has been used to portray the court as having been captured by a dangerous cabal that resorts to sneaky and improper methods to get its ways,” Alito said. “And this portrayal feeds unprecedented efforts to intimidate the court or damage it as an independent institution.”

Observers see trouble ahead as public approval of Supreme Court declines

Just days before Monday’s start of the new Supreme Court term, Alito took aim at the political and media criticism that five members of the court had effectively overturned the constitutional protection of abortion in Texas.

The state’s new law prohibits abortions after six weeks of gestation — months earlier than allowed by the constitutional standards the Supreme Court has endorsed. The law employs a unique system of enforcement by which members of the public can bring civil actions against those who aid and abet the prohibited abortions.

Alito highlighted a recent opinion piece that said the court’s conservative majority was so eager to overturn Roe v. Wade that it didn’t wait for a case from Mississippi to be argued Dec. 1, which presents squarely the issue of whether to overturn the nearly 50-year-old precedent.

“Put aside the false and inflammatory claim that we nullified Roe v. Wade,” Alito said. “We did no such thing. And we said that expressly in our order.”

The majority opinion Alito joined let the Texas law take effect. It said the case raised unique questions that the challengers had not satisfied about who the proper defendant is for a lawsuit aimed at stopping the law.

washington post logoWashington Post, House Jan. 6 committee issues subpoenas for pro-Trump rally organizers, Jacqueline Alemany, Tom Hamburger and Carol D. Leonnig, Oct. 1, 2021 (print ed.). The House select committee investigating the Jan. 6 attack on the Capitol issued subpoenas to 11 people associated with or involved in the planning of pro-Trump rallies that preceded the violent insurrection.

The subpoenas announced on Wednesday evening by the committee come a week after it issued subpoenas targeting two top Trump White House officials, the chief of staff to the acting defense secretary, and longtime Trump adviser Stephen K. Bannon.

Several of the newly subpoenaed are rally organizers — including the founders and staff of the pro-Trump Women for America First group — who could face questions about reports that the group had concerns about the “Stop the Steal” rally turning into an illegal and chaotic march on the Capitol. They may also be able to shed light on the degree to which the former president and his senior White House aides knew about their fears of chaos on Jan 6.

The subpoenas ask that Amy Kremer, a stalwart supporter of Trump and the founder of Women for America First — the group that sponsored the Stop the Steal rally on the Ellipse — provide documents and appear for a deposition before the committee.

The best-known person on the list of new subpoenas may be Katrina Pierson, who served as Trump campaign spokesman in 2016, worked with a pro-Trump political organization during the Trump’s term in office, and reportedly served as an informal liaison between the White House and the rally on the Ellipse. The letter sent to her Wednesday cites reports “that you participated in a meeting with President Trump in the Oval Office on Jan. 4., 2021,” about the rallies planned in coming days. The subpoena seeks documents and testimony related to her discussions about the rallies.

The committee is also seeking information from Kremer’s daughter Kylie, who assisted her mother in organizing the rally, along with Maggie Mulvaney, the niece of former acting White House chief of staff Mick Mulvaney. Mulvaney was listed as a “VIP Lead” on the permit for the event and served as the director of finance for the Trump campaign.

Atlanta Journal-Constitution, State Capitol statue for Clarence Thomas gaining steam, Patricia Murphy, Greg Bluestein and Tia Mitchell, Oct 1, 2021. U.S. Supreme Court Justice Clarence Thomas was in Pin Point on Saturday to dedicate a historical marker. One of Thomas' friends, Harlan Crow, spent millions on a museum in the community.

A proposal to display a statue of U.S. Supreme Court Justice Clarence Thomas on the statehouse grounds is gaining traction among Georgia Republicans.

State Sen. Jason Anavitarte, who said it’s “only fitting and proper” to honor the Pin Point native outside the Capitol, has picked up several key co-sponsors backing his effort.

They include state Sen. Ben Watson, who represents the coastal area near where the conservative jurist grew up.

Another backer is state Sen. Brian Strickland, who said Thomas deserves to be memorialized so Georgians “for years to come can recognize this man and what he accomplished.”

clarence thomas HRThomas, right, the court’s longest serving justice, is also the nation’s second Black Supreme Court justice. He is a reliable conservative vote who sees himself as an originalist aiming to interpret the Constitution as the Founders intended it.

Appointed by President George H.W. Bush, Thomas was confirmed to the court in 1991 after contentious hearings that included Anita Hill’s allegations that he sexually harassed her.

Democrats vowed to fight the idea, with some saying it was an insult to Hill and victims of harassment.

“I’d rather them keep a Confederate monument than a statue of Clarence Thomas,” said Democratic state Rep. Donna McLeod. “That’s how much I don’t like the idea.”

The statehouse grounds now feature statues, plaques, towering portraits and marble busts of historic and contemporary Georgia leaders, including former President Jimmy Carter and Dr. Martin Luther King, Jr. But controversy has swirled around monuments to Confederate leaders, too.

 

September

Sept. 30

washington post logoWashington Post, House Jan. 6 committee issues subpoenas for pro-Trump rally organizers, Jacqueline Alemany, Tom Hamburger and Carol D. Leonnig, Sept. 30, 2021. The House select committee investigating the Jan. 6 attack on the Capitol issued subpoenas to 11 people associated with or involved in the planning of pro-Trump rallies that preceded the violent insurrection.

The subpoenas announced on Wednesday evening by the committee come a week after it issued subpoenas targeting two top Trump White House officials, the chief of staff to the acting defense secretary, and longtime Trump adviser Stephen K. Bannon.

Several of the newly subpoenaed are rally organizers — including the founders and staff of the pro-Trump Women for America First group — who could face questions about reports that the group had concerns about the “Stop the Steal” rally turning into an illegal and chaotic march on the Capitol. They may also be able to shed light on the degree to which the former president and his senior White House aides knew about their fears of chaos on Jan 6.

The subpoenas ask that Amy Kremer, a stalwart supporter of Trump and the founder of Women for America First — the group that sponsored the Stop the Steal rally on the Ellipse — provide documents and appear for a deposition before the committee.

The best-known person on the list of new subpoenas may be Katrina Pierson, who served as Trump campaign spokesman in 2016, worked with a pro-Trump political organization during the Trump’s term in office, and reportedly served as an informal liaison between the White House and the rally on the Ellipse. The letter sent to her Wednesday cites reports “that you participated in a meeting with President Trump in the Oval Office on Jan. 4., 2021,” about the rallies planned in coming days. The subpoena seeks documents and testimony related to her discussions about the rallies.

The committee is also seeking information from Kremer’s daughter Kylie, who assisted her mother in organizing the rally, along with Maggie Mulvaney, the niece of former acting White House chief of staff Mick Mulvaney. Mulvaney was listed as a “VIP Lead” on the permit for the event and served as the director of finance for the Trump campaign.

 

Trump-supporting former law school dean John Eastman, left, helps Trump attorney Rudy Giuliani inflame pro-Trump protesters in front the White House before the insurrection riot at the U.S. Capitol to prevent the presidential election certification of Joe Biden's presidency on Jan. 6, 2021 (Los Angeles Times photo). Trump-supporting former law school dean John Eastman, left, helps Trump attorney Rudy Giuliani inflame pro-Trump protesters in front the White House before the insurrection riot at the U.S. Capitol to prevent the presidential election certification of Joe Biden's presidency on Jan. 6, 2021 (Los Angeles Times photo). 

washington post logoWashington Post, Opinion: A Trump lawyer wrote an instruction manual for a coup. Why haven’t you seen it on the news? Margaret Sullivan, right, Sept. 30, 2021 (print ed.). margaret sullivan 2015 photoIn a normal world, the “Eastman memo” would be infamous by now, the way “Access Hollywood” became the popular shorthand in 2016 for the damning recording of Donald Trump’s bragging about groping women.

But it’s a good bet that most people have never even heard of the Eastman memo.

That says something troubling about how blasé the mainstream press has become about the attempted coup in the aftermath of the 2020 election — and how easily a coup could succeed next time.

The memo, unearthed in Bob Woodward and Robert Costa’s new book, is a stunner. Written by Trump legal adviser John Eastman — a serious Establishment Type with Federalist Society cred and a law school deanship under his belt — it offered Mike Pence, then in his final days as vice president, a detailed plan to declare the 2020 election invalid and give the presidency to Trump.

In other words, how to run a coup in six easy steps.

Pretty huge stuff, right? You’d think so, but the mainstream press has largely looked the other way. Immediately after the memo was revealed, according to a study by left-leaning Media Matters for America, there was no on-air news coverage — literally zero on the three major broadcast networks: ABC, NBC and CBS. Not on the evening newscasts watched by more than 20 million Americans, far greater than the audience for cable news. Not on the morning shows the next day. And when Sunday rolled around, NBC’s “Meet the Press” was the only broadcast network show that bothered to mention it. (Some late-night hosts did manage to play it for laughs.)

The Washington Post reviewed the memo that was obtained for the Woodward-Costa book and wrote about it in a broader news story about the book’s revelations and in a news analysis. CNN got a copy, too, and more than most, gave it its due.

But largely, it fell upon a handful of opinion writers to provide the appropriate outrage.

“The Horrifying Legal Blueprint for Trump’s War on Democracy” read the headline on Jonathan Chait’s piece in New York magazine’s Intelligencer section. And in the New York Times, columnist Jamelle Bouie took it on with “Trump Had a Mob. He Also Had a Plan.” The Post’s Greg Sargent hammered away at it.

Sept. 27

American Prospect, Opinion: Fight Fascism First, Robert Kuttner, Sept. 27, 2021. Robert Kagan’s must-read essay in The Washington Post, "Our Constitutional Crisis Is Already Here," gets the big picture right, but gets some tactical details seriously wrong.

Kagan is all too accurate when he points out that Trump has captured the Republican Party and that Trumpers are now fully prepared to destroy democracy in order to win the 2022 and 2024 elections. "Trump’s grip on his supporters left no room for an alternative power center in the party," he points out. "One by one, the ‘adults’ resigned or were run off."

He is correct that Democrats, going about the normal business of negotiating their differences on the budget resolution, are not sufficiently mindful of the deeper threat of full-on fascism.

Kagan is also right that the Republicans are playing a double game, behaving as a normal opposition party in trying to block or weaken the governing party’s program, while being enablers of dictatorship, quite like the German conservatives who threw in with Hitler in 1932.

What to do? Here is where the wishful second part of Kagan’s powerful essay contradicts the unflinching first part. He writes that Republicans like Mitt Romney and the six other Republican senators who voted to convict Trump for inciting an insurrection should fashion themselves as Constitutional Republicans who, in the present emergency, are willing to form a national unity coalition in the Senate for the sole purpose of saving the republic.

Sure, that would be swell. But it’s not going to happen. And it won’t happen even if the Democrats reduce Biden’s Build Back Better program to 50 cents to "strive for a temporary governing consensus."

Rather than looking for anti-Trump Republicans, who Kagan accurately reminds us are as dead as dinosaurs, Democrats should be redoubling their efforts to get voting rights legislation, and to use the federal government’s police and prosecutorial powers to give no quarter to fascists seeking to overthrow what remains of our democracy.

Sept. 26

washington post logoWashington Post, Supreme Court observers see trouble ahead as public approval of justices erodes, Robert Barnes and Seung Min Kim, Sept. 26, 2021. The Supreme Court’s approval rating is plummeting, its critics are more caustic, and justices are feeling compelled to plead the case to the public that they are judicial philosophers, not politicians in robes.

All of this as the court embarks Oct. 4 on one of the most potentially divisive terms in years. Docketed cases concern gun control, separation of church and state, and the biggest showdown in decades on the future of Roe v. Wade and the constitutional right to an abortion.

Meanwhile, a presidential commission studying the court is being bombarded with criticism from the left, and occasionally the right, that the justices are too political, too powerful and serve for too long.

Justices say they have philosophical — not partisan — differences

Even those who value the court see trouble ahead.

“Not since Bush v. Gore has the public perception of the court’s legitimacy seemed so seriously threatened,” the Georgetown Supreme Court Institute’s executive director, Irv Gornstein, said last week at a preview of the court’s upcoming term.

A Gallup poll released last week said Americans’ opinions of the Supreme Court have dropped to a new low, with only 40 percent approving of the justices’ job performance. “At this point, less than a majority of Republicans, Democrats and independents approve of the job the court is doing,” said Gallup, which has been tracking the trend since 2000.

A recent survey by Marquette University Law School documented the same dramatic drop. Its numbers showed public approval sliding from 60 percent in July to 49 percent in September.

In recent weeks, three justices — the newest, Amy Coney Barrett, the most senior, conservative Clarence Thomas, and liberal Stephen G. Breyer — have defended in speeches and interviews the court’s decision-making and independence.

Proof, Investigation: Trump Lawyer Admits Trump's Legal Team Was Seeking An Emergency Injunction Against Certification of Biden's Win As Trump Incited a Riot seth abramson graphicto Delay the Joint Session of Congress, Seth Abramson, left, Sept. 26, 2021. New revelation confirms the actions of Trump's legal team in the Willard "war room"—whose occupants were in direct contact with Trump—were designed to dovetail with the violent attack on the Capitol.

Introduction: On March 10, 2021, Proof published an article entitled “Here Is the Twelve-Point Plan Donald Trump Had for January 6.” Based on two seth abramson proof logomonths of research relating to January 6, Proof concluded that Trump’s plan for January 6 was built on the following foundation....

In a new interview with far-right activist and propagandist Stew Peters, Powell admits that Trump’s legal team filed for an injunction against Congress in the first days of January.

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).

 

steve bannon billionaire guo wengui

Guo Wengui, a Chinese billionaire wanted by the government of China for bribery, kidnapping, money laundering, fraud and rape, is shown above with Trump ally and former 2016 campaign CEO Steve Bannon. Guo funds through his GTV Media Group conglomerate Bannon's "War Room" podcast and "Real America's Voice" Internet television broadcast and other propaganda supporting the January 6th insurrection in Washington and the overthrow of the the U.S. government, which is giving him political asylum in New York City and elsewhere.

Wayne Madsen Report, Investigative Commentary: International fascist collusion to overthrow the U.S. government, Wayne Madsen, left, Sept. 26, 2021 (authorized for republication in wayne madsen may 29 2015 cropped Smallan excerpt form after first pubication on Sept. 9 behind the paywall of the Wayne Madsen Report. The author is national security expert who has appeared on all but one major U.S. broadcast and cable news networks. He is a former Navy Intelligence Officer and NSA analyst, and author of 20 books, including the forthcoming, "The Rise of the Fascist Fourth Reich: The Era of Trumpism and the Far-Right."

Not since the planned 1934 fascist coup against the administration of Franklin D. Roosevelt by various right-wing, fascist, and Nazi forces, backed by wealthy Wall Street interests, has the United States faced a coordinated plot by Americans and foreign interests to overthrow democracy in the United States.

wayne madesen report logoIn 1933 and 1934, the fascist coup planning, which was exposed by retired Marine Corps General Smedley Butler, were directly linked to Adolf Hitler's Germany, Benito Mussolini's Italy, and French Croix de Feu fascist political leaders. Groups supporting a coup against FDR included groups ranging from the pro-Mussolini American Legion to Nazi organizations like the Silver Legion of America, the German American Bund, Friends of New Germany, the Ku Klux Klan, the Sentinels of the Republic, and the Crusaders.

Today, substitute the government of Brazilian President Jair Bolsonaro, Chinese expatriate billionaire Guo Wengui, and groups like the Proud Boys, Three Percenters, Oath Keepers, Boogaloo Bois, and Falun Gong, and you will see that history is merely repeating itself with different countries and groups involved in establishing a fascist dictatorship in America, Brazil, and other nations.

Steve Bannon's effort to create an international fascist movement, which is known as simply as "The Movement," has brought together Donald Trump loyalists with the Brazilian government of Bolsonaro and his family. Trump and Bolsonaro loyalists are actively attempting to corrupt and destroy the electoral underpinnings of democratic rule in the United States, Brazil, and third countries, for example, Bolivia, Peru, Colombia, and others.

Bolsonaro's son, Eduardo Bolsonaro, a member of Brazil's Chamber of Deputies, the Latin American leader of Bannon's Movement, and Trump's personal choice but failed nominee as Brazil's ambassador in Washington, was very active with the attempted January 6 coup attempt in Washington.

Eduardo Bolsonaro participated in an insurrection eve "War Council" held at the Trump International Hotel in Washington, DC. Other participants in the war council included Donald Trump Jr. and Eric Trump, Rudolph Giuliani, MyPillow's Mike Lindell, disgraced ex-National Security Adviser under trump Lt. General Michael Flynn, and lawyer Sidney Powell. Eduardo Bolsonaro also held a meeting at the White House on January 4 with Ivanka Trump and separately with expatriate Brazilian fascist political adviser and astrologer Olavo de Carvalho. Carvalho, who has been dubbed the "Rush Limbaugh" of Brazil, lives south of Richmond, Virginia in Dinwiddie County. Carvalho, a close associate of Bannon, is a "flat earther," climate change and Covid-19 pandemic denier, and anti-vaccine (anti-vaxx) proponent.

The House Select Committee on the January 6 insurrection would do well to cooperate with Brazilian Senator Jacques Wagner (PT-Bahia) of the Workers' Party of former Brazilian President Luiz Inácio Lula da Silva. Wagner is conducting a Senate investigation of Eduardo Bolsonaro's role in the January 6 coup attempt at the U.S. Capitol. Wagner asked the then-Brazilian Foreign Minister, Ernest Araujo, someone who has erroneously called Nazism a "leftist" movement, to answer eight questions [right] dealing with the roles played by Bolsonaro's son and the Brazilian Embassy in Washington, DC into the January 5 war council at the Trump hotel and additional meetings between Eduardo Bolsonaro and "several other members of the Republican Party."

Those who diminish the importance of the January 6 coup attempt by calling it a "riot" or a "violent protest" fail to understand that it is the subject of formal legislative investigations by the U.S. House and the Brazilian Senate. That fact, alone, points to the January 6 event being a vast international conspiracy.

Bannon's operations, including his own involvement in the January 6 insurrection, have been financed by Guo Wengui and Lindell, as well as previously by the multi-billionaire hedge fund father-daughter team of Robert and Rebekah Mercer.

On August 10, 2021, Eduardo Bolsonaro was back in the United States attending Lindell's kooky "cyber symposium" in Sioux Falls, South Dakota. Bannon emceed the live-streamed symposium. Bolsonaro gave Lindell a "Make America Great Again" hat signed by Donald Trump. Bolsonaro said he had met Trump at his Bedminster, New Jersey on August 9 and Trump asked him to give the hat to Lindell. Bolsonaro gave a speech on how Brazil's election system was as "rigged" as that of the United States. Jair Bolsonaro has repeatedly threatened that he might cancel the 2022 presidential election, which polls currently indicate that he would lose to the leftist Lula da Silva in a landslide.

Former Trump White House adviser Jason Miller, the CEO of the right-wing social media platform GETTR, participated in the September 3-4 Conservative Political Action Conference Brasil (CPAC Brasil) conference in Brasilia, the nation's capital. On September 7, Jair Bolsonaro urged tens of thousands of his supporters who gathered in Brasilia to storm the Brazilian Supreme Court and imprison the justices, including Alexandre de Moraes, who has been leading an investigation of President Bolsonaro and members of his family, including Eduardo, for corruption. Miller and his delegation met with Jair and Eduardo Bolsonaro in Brasilia.

The House January 6 committee should also invite Justice Moraes to share on a confidential basis any information he has gleaned on the Bolsonaros involvement with the attempted January 6 coup in Washington. Jair Bolsonaro has repeatedly threatened a military coup in Brazil to cement his rule over the country.

The Fourth Reich movement of Donald Trump and his fellow fascists is the focus of the forthcoming editor's book titled, "The Rise of the Fascist Fourth Reich: The Era of Trumpism and the Far-Right."

washington post logoWashington Post, Election fraud, QAnon, Jan. 6: Extremists in Germany read from a pro-Trump script, Isaac Stanley-Becker, Sept. 26, 2021 (print ed.). Apocalyptic messages circulating ahead of German elections on Sunday import conspiratorial rhetoric from the United States.

One message advocated “occupying election offices.”

Another warned of “coronavirus tyranny.”

And a third extolled former president Donald Trump and Q, the shadowy oracle of the extremist ideology QAnon, for inspiring a new social movement prepared to take back power from the state. “America is waking up and ready to fight,” it vowed.

The calls to action came not in anticipation of the Jan. 6 assault on the U.S. Capitol. Rather, they emerged this month in Germany, within a far-right group on the messaging app Telegram, where neo-Nazis and doomsday preppers foresee what’s known as “Day X” — the collapse of the German state and assassination of high-ranking officials.

Such apocalyptic messages — posted in the run-up to German elections on Sunday — import conspiratorial, anti-government rhetoric broadcast in the U.S., according to screenshots of the since-deleted chatroom reviewed by The Washington Post.

  capitol noose shay horse nurphoto via getty

A crowd of Trump supporters surrounded a newly erected set of wooden gallows outside the Capitol Building on Jan. 6. "Hang Mike Pence!" members of the crowd shouted at times about the Republican Vice President who had announced that he could not comply with the president's call to block election certification that day. The wooden gallows near the Capitol Reflecting Pool

american flag upside down distress

washington post logoWashington Post, Opinion: Our constitutional crisis is already here, Robert Kagan, right, Brookings Institution fellow, best-selling author and former State Department official, Sept. 26, 2021 (print ed.). The United States is heading into its greatest political and constitutional robert kagan looking leftcrisis since the Civil War, with a reasonable chance over the next three to four years of incidents of mass violence, a breakdown of federal authority, and the division of the country into warring red and blue enclaves. The warning signs may be obscured by the distractions of politics, the pandemic, the economy and global crises, and by wishful thinking and denial. But about these things there should be no doubt:

First, Donald Trump will be the Republican candidate for president in 2024. The hope and expectation that he would fade in visibility and influence have been delusional. He enjoys mammoth leads in the polls; he is building a massive campaign war chest; and at this moment the Democratic ticket looks vulnerable. Barring health problems, he is running.

Second, Trump and his Republican allies are actively preparing to ensure his victory by whatever means necessary. Trump’s charges of fraud in the 2020 election are now primarily aimed at establishing the predicate to challenge future election results that do not go his way. Some Republican candidates have already begun preparing to declare fraud in 2022, just as Larry Elder tried meekly to do in the California recall contest.

Meanwhile, the amateurish “stop the steal” efforts of 2020 have given way to an organized nationwide campaign to ensure that Trump and his supporters will have the control over state and local election officials that they lacked in 2020. Those recalcitrant Republican state officials who effectively saved the country from calamity by refusing to falsely declare fraud or to “find” more votes for Trump are being systematically removed or hounded from office. Republican legislatures are giving themselves greater control over the election certification process. As of this spring, Republicans have proposed or passed measures in at least 16 states that would shift certain election authorities from the purview of the governor, secretary of state or other executive-branch officers to the legislature. An Arizona bill flatly states that the legislature may “revoke the secretary of state’s issuance or certification of a presidential elector’s certificate of election” by a simple majority vote. Some state legislatures seek to impose criminal penalties on local election officials alleged to have committed “technical infractions,” including obstructing the view of poll watchers.

The stage is thus being set for chaos. Imagine weeks of competing mass protests across multiple states as lawmakers from both parties claim victory and charge the other with unconstitutional efforts to take power. Partisans on both sides are likely to be better armed and more willing to inflict harm than they were in 2020. Would governors call out the National Guard? Would President Biden nationalize the Guard and place it under his control, invoke the Insurrection Act, and send troops into Pennsylvania or Texas or Wisconsin to quell violent protests? Deploying federal power in the states would be decried as tyranny. Biden would find himself where other presidents have been — where Andrew Jackson was during the nullification crisis, or where Abraham Lincoln was after the South seceded — navigating without rules or precedents, making his own judgments about what constitutional powers he does and doesn’t have.

Today’s arguments over the filibuster will seem quaint in three years if the American political system enters a crisis for which the Constitution offers no remedy.

Most Americans — and all but a handful of politicians — have refused to take this possibility seriously enough to try to prevent it. As has so often been the case in other countries where fascist leaders arise, their would-be opponents are paralyzed in confusion and amazement at this charismatic authoritarian. They have followed the standard model of appeasement, which always begins with underestimation. The political and intellectual establishments in both parties have been underestimating Trump since he emerged on the scene in 2015. They underestimated the extent of his popularity and the strength of his hold on his followers; they underestimated his ability to take control of the Republican Party; and then they underestimated how far he was willing to go to retain power. The fact that he failed to overturn the 2020 election has reassured many that the American system remains secure, though it easily could have gone the other way — if Biden had not been safely ahead in all four states where the vote was close; if Trump had been more competent and more in control of the decision-makers in his administration, Congress and the states. As it was, Trump came close to bringing off a coup earlier this year. All that prevented it was a handful of state officials with notable courage and integrity, and the reluctance of two attorneys general and a vice president to obey orders they deemed inappropriate.

These were not the checks and balances the Framers had in mind when they designed the Constitution, of course, but Trump has exposed the inadequacy of those protections. The Founders did not foresee the Trump phenomenon, in part because they did not foresee national parties. They anticipated the threat of a demagogue, but not of a national cult of personality. They assumed that the new republic’s vast expanse and the historic divisions among the 13 fiercely independent states would pose insuperable barriers to national movements based on party or personality. “Petty” demagogues might sway their own states, where they were known and had influence, but not the whole nation with its diverse populations and divergent interests.

Such checks and balances as the Framers put in place, therefore, depended on the separation of the three branches of government, each of which, they believed, would zealously guard its own power and prerogatives. The Framers did not establish safeguards against the possibility that national-party solidarity would transcend state boundaries because they did not imagine such a thing was possible. Nor did they foresee that members of Congress, and perhaps members of the judicial branch, too, would refuse to check the power of a president from their own party.

Robert Kagan, author of the long column excerpted above, is the Stephen & Barbara Friedman Senior Fellow with the Project on International Order and Strategy in the Foreign Policy program at Brookings. He is a contributing columnist at the Washington Post. His new book is The Jungle Grows Back: America and Our Imperiled World” (Knopf, 2018). He previously wrote the New York Times bestseller, The World America Made (Knopf, 2012), as well as other books about history and global affairs.

For his writings, Politico Magazine named Kagan one of the “Politico 50” in 2016, the “thinkers, doers and visionaries transforming American politics in 2016.” His most recent pieces include The Twilight of the Liberal World Order” in “Brookings Big Ideas for America” and “Backing into World War III in Foreign Policy. He served in the State Department from 1984 to 1988 as a member of the policy planning staff, as principal speechwriter for Secretary of State George P. Shultz, and as deputy for policy in the Bureau of Inter-American Affairs. He is married to longtime State Department official Victoria Nuland and holds a doctorate in American history from American University.

washington post logoWashington Post, Fallout begins for far-right trolls who trusted Epik to keep their identities secret, Drew Harwell, Hannah Allam, Jeremy B. Merrill and Craig Timberg, Sept. 26, 2021 (print ed.). The colossal hack of Epik, an Internet-services company popular with the far right, has been called the “mother of all data lodes” for extremism researchers. In the real world, Joshua Alayon worked as a real estate agent in Pompano Beach, Fla., where he used the handle “SouthFloridasFavoriteRealtor” to urge buyers on Facebook to move to “the most beautiful State.”

epik logoBut online, data revealed by the massive hack of Epik, an Internet-services company popular with the far right, signaled a darker side. Alayon’s name and personal details were found on invoices suggesting he had once paid for websites with names such as racisminc.com, whitesencyclopedia.com, christiansagainstisrael.com and theholocaustisfake.com.

The information was included in a giant trove of hundreds of thousands of transactions published this month by the hacking group Anonymous that exposed previously obscure details of far-right sites and launched a race among extremism researchers to identify the hidden promoters of online hate.

After Alayon’s name appeared in the breached data, his brokerage, Travers Miran Realty, dropped him as an agent, as first reported by the real estate news site Inman. The brokerage’s owner, Rick Rapp, told The Washington Post that he didn’t “want to be involved with anyone with thoughts or motives like that.”

Alayon told The Post that he does not own the ‘racisminc,’ Holocaust-denial or other Web addresses but declined to say if he had owned them in the past; the records were hacked earlier this year. But in a screenshot of his Epik account, which he sent to The Post, the information for four other domains he currently owns matches the private records that can be found in the Epik breach.

Asked why his name, email address and other personal information were listed in company invoices for the ‘racisminc’ and Holocaust-denial domains, Alayon said the data was “easily falsifiable,” that he was the possible victim of extortion and that The Post was “fake news.”

The breach of Epik’s internal records has cast a spotlight on a long-hidden corner of the Internet’s underworld, and researchers expect it could take months before they can process the full cache — the equivalent of tens of millions of pages. Many are digging for information on who owns and administers extremist domains about which little was previously known.

Epik, based outside Seattle, said in a data-breach notice filed with Maine’s attorney general this week that 110,000 people had been affected nationwide by having their financial account and credit card numbers, passwords and security codes exposed. An earlier data-breach letter from the company, filed to comply with Montana law, was signed by the “Epic Security Team,” misspelling the company’s name. An Epik spokesperson said it was a simple typo.

washington post logoWashington Post, Editorial: The nation faces financial calamity. Republicans will be to blame, Editorial Board, Sept. 26, 2021 (print ed.). The White House on Thursday instructed federal agencies to prepare for an imminent government shutdown, in case Congress fails to pass a stopgap funding bill by Sept. 30. Government shutdowns are expensive and disruptive, and they deservedly sully the nation’s image and sense of self-respect. But at this point a lapse in government services should be the least of Americans’ worries. The nation faces an epochal financial disaster if Congress fails to raise the debt limit, forcing the country to default on its obligations and inviting a global financial panic.

Mitchell_McConnellIf that happens, there will be no doubt about who is at fault: Senate Minority Leader Mitch McConnell (R-Ky.), left, and his Republican caucus, who are playing games with the full faith and credit of the United States.

Democrats joined with Republicans to suspend the debt ceiling during the Trump administration. But Mr. McConnell suddenly declares that the majority is solely responsible for performing this unattractive task, even though he pioneered the routine use of the filibuster to force any and all Senate legislation to overcome a 60-vote threshold. With only 50 votes, and Republicans unwilling to lift a finger to avoid financial calamity, Democrats’ only option would be to use the arcane “reconciliation” procedure. Senate experts believe this would be possible, but it would require a couple of weeks of complex parliamentary maneuvering and some Republican cooperation in the Senate Budget Committee. Meanwhile, the treasury is on the verge of running out of money.

Other than sticking it to Democrats, what is the point? Using reconciliation, Democrats would have to raise the debt limit by a specific dollar amount, not just suspend it for a time, as Republicans did under President Donald Trump. This would enable Republicans to run attack ads blasting Democrats for expanding the debt by some large, specific number. Never mind that raising the debt limit does not approve any new spending; it merely permits the treasury to finance the spending Congress already has okayed.

Sept. 24

 

john_f_kennedy_smiling

Future of Freedom Foundation, Opinion: Biden Will Continue the JFK Cover-Up, Jacob G. Hornberger, right, (foundation founder, author, book publisher and attorney), Sept. 24, 2021. On October 26, the deadline for the public Jacob Hornbergerdisclosure of the CIA’s still-secret records relating to the Kennedy assassination comes due. At that point, the issue will be: Will President Biden order the National Archives to release the CIA’s long-secret records or will he continue the U.S. national-security establishment’s almost 60-year-old cover up of its regime-change operation in Dallas on November 26, 1963?

Make no mistake about it: Biden, like his predecessor President Donald Trump, will continue the cover-up. That’s because the CIA will future of freedom foundation logo squaredemand it.

Mind you, this is just my prediction. I don’t know as a fact that the CIA has even asked Biden to continue shielding its long-secret records from the American people. When I asked the National Archives to identify any agencies that have expressed an interest in another extension of time for secrecy, they refused to provide an answer to my question.

But consider this: Whatever reason that the CIA had for requesting Trump to continue the secrecy, that reason would continue through today. If they were scared to have the American people see those records 60 years ago, and then again 30 years ago during the ARRB years, and then 5 years ago, I will guarantee you that they are just as scared today.

Let’s get one thing clear: Whatever definition one wants to put on that nebulous and meaningless two-word term “national security,” there is no possibility that the release of 60-year-old records is going to threaten “national security.” In other words, if the CIA’s records are disclosed, the United States won’t fall into the ocean. The Reds won’t succeed in taking over America’s public schools. The Russians won’t come and get us. Cuba won’t invade and conquer the United joe biden resized oStates. Vietnam won’t start the dominoes falling.

The only thing that would happen is that more pieces to the assassination puzzle will be filled in, most likely relating to Lee Harvey Oswald’s purported trip to Mexico City, a part of the assassination scheme that clearly went awry.

Both the CIA and the Pentagon know what happened after the ARRB strictly enforced the JFK Records Act in the 1990s. Having been released from vows of secrecy that the military had imposed on them, people started talking, big time.

No, they didn’t start talking about the assassination. When people engage in murder, they don’t often talk freely about it. When the CIA and the Mafia engage in murder, they are very good about keeping secrets. We still don’t know, for example, who killed Jimmy Hoffa and Johnny Roselli, who was the liaison in the CIA-CIA LogoMafia partnership to assassinate Cuban leader Fidel Castro.

Where people started talking was with respect to the autopsy that the U.S. military conducted on President Kennedy’s body on the very evening of the assassination. Released from vows of secrecy that the military had forced them to sign, several enlisted personnel disclosed a mountain of evidence establishing a fraudulent autopsy.

Why is that important? One big reason: There is no innocent explanation for a fraudulent autopsy. None. No one has ever come up with one. No one ever will. The fraudulent autopsy is inextricably bound up with the assassination itself.

For example, as I pointed out in my recent article “The Kennedy Autopsy Selected for Amazon’s Prime Reading Program,” several enlisted personnel came forward in the 1990s and established that the national-security establishment sneaked President Kennedy’s body into the Bethesda morgue at 6:35 p.m., almost 1 1/2 hours before the official entry time of 8 p.m. Their statements were corroborated by a memorandum from Gawler’s Funeral Home, which conducted Kennedy’s funeral. They were further corroborated by statements made by Col. Pierre Finck, one of the three pathologists.

Whatever they were doing in that hour-and-half had to be rotten to the core. Otherwise, why the secrecy, the skullduggery, the deception, and the lies? If it hadn’t been for the ARRB, we would most likely never have known they had done that.

Unfortunately, the JFK Records Act permitted these people to keep many of their assassination-related records secret for another 25 years, long after the law forced the ARRB to go out of existence. The CIA took advantage of that loophole. Then when the deadline arrived under the Trump administration, Trump unfortunately granted their request for additional time for secrecy.

Given that Trump surrendered to the CIA in its demand for further secrecy, one thing is certain: Biden will do so as well. That’s my prediction. While Trump continually deferred to the national-security establishment, in my opinion Biden is effectively owned, lock, stock, and barrel, by the national-security establishment. That means he, like Trump, will do as they say.

Oh, they’ll release some of the records in the hope of skating by without much notice from the mainstream press. But I predict that the most incriminating evidence will continue to be shielded from public view — on grounds of “national security” of course.

anita hill 2013 documentary poster

washington post logoWashington Post, Perspective: Anita Hill and Christine Blasey Ford have a lot to talk about. A new podcast lets us listen in, Margaret Sullivan, right, Sept. 24, 2021. margaret sullivan 2015 photoTheirs is a club of two. A club that neither of them ever would have asked to join.

Thirty years ago next month, Anita Hill (shown above in a poster for a 2013 documentary) testified before the all-White, all-male Senate Judiciary Committee, accusing Supreme Court nominee Clarence Thomas of sexually harassing her when he was her boss in two federal workplaces.

Twenty-seven years later, Christine Blasey Ford, below left, testified before the committee that another Supreme Court nominee, Brett M. Kavanaugh, had sexually assaulted her when they were teenagers.

christine blasey ford oath uncreditedIn both cases, the testimony riveted the nation. Hill’s was televised and seen by a huge audience. Ford’s, taking place in a thoroughly transformed media environment, was the focus of nonstop cable TV and social media coverage and partisan commentary that was as immediate as it was intense. Both Thomas and Kavanaugh denied the women’s statements, and Thomas called the committee proceedings “a high-tech lynching for uppity Blacks.”

During a recent conversation recorded for a new podcast, Hill, now 65 and a Brandeis law professor, told Ford, 54 and a psychology scholar at Stanford and Palo Alto University, that she felt a sense of overwhelming kinship as she watched the 2018 testimony — a feeling that she knew was shared by a large community of like-minded women.

“A spiritual solidarity,” Hill called it.

Their conversation is a high point in “Because of Anita,” a new four-part podcast series that debuts in October. I listened to a segment of it Thursday and found it moving, instructive and — as podcasts sometimes can be — surprisingly intimate. The two had met and spoken before but not, until now, for the public to hear.

The conversation took place on Zoom in late August with Hill and Ford in their home offices in Massachusetts and California. The podcast hosts — activist and scholar Salamishah Tillet and journalist Cindi Leive, longtime editor of Glamour magazine — were in San Diego and Brooklyn.

Hill and Ford discussed the intensity of their experiences, and how it lingered far beyond their moments in the harsh spotlight — moments remembered by many Americans as a still image of each woman with her right hand raised.

They also agreed on their motivation: that it was not, at heart, to persuade those who would vote for or against the nominees but rather, a desire to be clear and honest about their experiences — to simply say what they knew and not to be attached to the outcome.

The most obvious outcomes, of course, were similar. Thomas and Kavanaugh both were confirmed by narrowly divided Senate votes: 52 to 48, and 50 to 48, respectively.

But both Hill and Ford sound as if they have made their peace with that — and say they would do it again, though they acknowledge how much the searing experiences have changed their lives.

Sept. 21

Legal Schnauzer, Opinion: Signs of sloppiness at Christopher Wray's FBI go beyond the USA Gymnastics probe; they date at least to a botched background check on Brett Kavanaugh, Roger Shuler, Sept. 21, 2021. That's a story that seemingly will not go away. Perhaps it's driven in part by Wray's curious background, which includes alarming ties to Russian interests and right-wing bad actors who tend to have an outsized influence in Alabama's political and legal worlds.

From a Legal Schnauzer post in October 2018:

FBI director Christopher Wray has professional ties to Russia, and that likely explains a Brett Kavanaugh background check that widely is being described as a "sham," according to an Alabama political insider.

Donald Trump nominated Wray to lead the FBI in June 2017, having fired James Comey roughly one month earlier. In 2003, President George W. Bush nominated Wray to lead the Criminal Division at the U.S. Department of Justice (DOJ). Before going into public service, Wray was a partner at King and Spalding, an Atlanta-based law firm with 10 offices around the country -- plus 10 international branches, including one in Moscow. . . .

FBI logoHow sketchy was the FBI supplemental background check on Kavanaugh? It probably would have to improve to merit being called "cursory". According to one report, FBI agents interviewed nine individuals -- but they apparently did not include chief accuser, Dr. Christine Blasey Ford, nor any of her corroborating witnesses. From a report at New York magazine:

Several people who reached out to investigators to offer information said they were also left hanging. NBC News says dozens of potential witnesses have come forward to FBI field offices, “but agents have not been permitted to talk to many of them.” The New Yorker spoke to several people who were also unable to get an audience with the FBI despite their ability to corroborate [Deborah] Ramirez’s story and information refuting claims Kavanaugh made during last week’s testimony.

The FBI/Kavanaugh story continues to percolate, as evidenced by a report last week from the UK Guardian:

The FBI director, Chris Wray, is facing new scrutiny of the bureau’s handling of its 2018 background investigation of Brett Kavanaugh, including its claim that the FBI lacked the authority to conduct a further investigation into the then supreme court nominee.

At the heart of the new questions surrounding Wray . . . is a 2010 Memorandum of Understanding that the FBI has recently said constrained the agency’s ability to conduct any further investigations of allegations of misconduct.

It is not clear whether that claim is accurate, based on a close reading of the MOU, which was released in court records following a Freedom of Information Act request.

The FBI was called to investigate allegations of sexual misconduct against Kavanaugh during his Senate confirmation process in 2018, after he was accused of assault by Christine Blasey Ford, a professor who knew Kavanaugh when they were both in high school. He also faced other accusations, including that he had exposed himself to a classmate at Yale called Deborah Ramirez. Kavanaugh denied both accusations.

The FBI closed its extended background check of Kavanaugh after four days and did not interview either Blasey Ford or Kavanaugh. The FBI also disclosed to the Senate this June – two years after questions were initially asked – that it had received 4,500 tips from the public during the background check and that it had shared all “relevant tips” with the White House counsel at that time. It is not clear whether those tips were ever investigated.

The FBI said in its letter to two senators – Sheldon Whitehouse and Christopher Coons – that the FBI did not have the authority under the 2010 MOU at the time to “unilaterally conduct further investigative activity absent instructions from the requesting entity”. In other words, the FBI has said it would have required explicit instructions from the Trump White House to conduct further investigation under the existing 2010 guidelines on how such investigations ought to be conducted.

Justice Department log circularBut an examination by the Guardian of the 2010 MOU, which was signed by the then attorney general, Eric Holder, and then White House counsel, Robert Bauer, does not make explicitly clear that the FBI was restricted in terms of how it would conduct its investigation.

The MOU, which was released in court documents in 2019 as part of Freedom of Information Act litigation brought against the US government by Buzzfeed, also does not explicitly state that the White House had the power to set the process parameters on any investigation.

What about the ties of Wray's former law firm to Russian mobsters, domestic mobsters, and unsavory characters in the Alabama political/legal firmament? From our 2018 post:

King and Spalding's extensive ties to Russia should raise eyebrows about the cursory supplemental background check of Brett Kavanaugh by Christopher Wray's FBI, says Jill Simpson -- whistle blower, opposition researcher, and retired lawyer from Rainsville, Alabama. In a Facebook post yesterday, Simpson notes King and Spalding's ties to a number of dubious characters and activities related to Russia.

They include Sergei Millian, a one-time Russian translator who has headed the Russian-American Chamber of Commerce (Russia Am Cham, based in Atlanta) and reportedly was a primary source of information for the Trump-Steele dossier. In short, Millian likely has loads of blackmail-worthy dirt on Trump, and guess what law firm has represented Russia Am Cham? It's King and Spalding, of course, says Simpson.

The firm also has ties to Trump-affiliated mobster Felix Sater, and Simpson says the firm (via Russia Am Cham) was involved in a failed lottery deal -- involving oily Alabama lawyer Rob Riley and his associate, Robert Sigler -- that fleeced the late Milton McGregor, attorney Tommy Gallion, and other prominent Montgomery business types out of about $40 million. King and Spalding, says Simpson, has ties to Russian oligarch/mafia figure Oleg Derispaska, one-time Trump campaign chair and convicted felon Paul Manafort, and Trump attorney general Jeff Sessions.

That is a lot ugly, nasty stuff -- threatening America's democracy, and Christopher Wray, via his association with King and Spalding, is tied to all of it. Writes Simpson:

FBI director Christopher Wray should be forced to resign over [the Kavanaugh supplemental background check]. It was Wray's firm, King and Spalding, that used to host the Russia Am Cham conferences for Oleg Deripaska, Mr Millian, and Mr. Sater -- the Riley/Sessions Gang attended when they beat Milton McGregor and his buddies out of $40 million for a fake Russian lottery.

Wray's firm represents the Russian Oil and Gas Business firm that Vladimir Putin directs. Also, Christopher Wray was a Yale Law School graduate, just like Kavanaugh, and has been buddies with the Kavanaugh, Rove, and Sessions crowd for years.

The FBI's Kavanaugh background check is just a report done by a member of the Jeff Sessions, Mitch McConnell, Donald Trump Russian Mafia. I tried to say last week it would be bullshit, due to Wray's ties to the Russian Mafia. His old firm is a big part of Putin's legal team. Until we as a country crush the New York/Alabama/GOP Russian Mafia, we are going to continue seeing this level of corruption.

Sept. 20

 

mckayla maroney saul loeb pool reuters

U.S Olympic gymnast McKayla Maroney testifies during a Senate Judiciary hearing on Capitol Hill on Sept. 15, 2021 (Saul Loeb/POOL via Reuters).

ABC News, McKayla Maroney's gut-wrenching statement to Congress about FBI's handling of Nassar abuse, Staff edits, Sept. 15, 2021 (7:51 min. video).  "They had legal, abc news logolegitimate evidence of child abuse and did nothing," she said.

 

washington post logoWashington Post, Opinion: Two miscarriages of justice reveal a sickening disparity, Ruth Marcus, right, Sept. 20, 2021. Two individuals allegedly made false ruth marcus twitter Customstatements to federal investigators. One now faces trial on a felony charge. The other does not. I defy you to read about their cases and conclude that justice is served in either instance, or that it is being applied even-handedly.

Let’s start with the person who has been let off the hook, because the decision is so infuriating and underscores so dramatically the unfairness of the other prosecution. W. Jay Abbott was the special agent in charge of the FBI’s Indianapolis field office in 2015, when it received reliable reports that USA Gymnastics physician Larry Nassar had sexually abused multiple gymnasts.

One of Nassar’s victims, McKayla Maroney, testified before the Senate Judiciary Committee last week about describing how Nassar had repeatedly molested her to one of Abbott’s agents, only to have the agent reply, “Is that all?”

What happened next? For months, nothing, as far as the FBI was concerned. Abbott’s office was supposed to refer the allegations to the FBI’s Lansing, Mich., office, the city where Nassar worked. But that never happened — and Nassar went on to abuse at least 70 more young athletes until he was arrested by Michigan state police 16 months later.

During that time period, Abbott met and corresponded repeatedly with the head of USA Gymnastics, Steve Penny, about a tantalizing job prospect, heading up security for the entire U.S. Olympic Committee.

FBI logoWhen the Justice Department’s inspector general interviewed Abbott, since retired, about the bureau’s handling of the Nassar case, he “made multiple false statements” about both the conduct of the investigation and his job talks, in violation of the federal false statements law, the inspector general concluded in a searing report released in July.

Abbott claimed he had spoken with FBI counterparts in Detroit and Los Angeles about the Nassar allegations; both agents denied such conversations, and there was no documentation they occurred.

olympics logo 2018 winterThe inspector general “found no evidence” to support Abbott’s claims — and further concluded that “Abbott’s false statements were knowing and intentional.”

But Abbott also insisted to the inspector general that he had never applied for or taken other steps to secure the Olympics job. This was, according to the inspector general, untrue, deliberately so, and stretched across two sworn interviews, including after Abbott was confronted with evidence to the contrary.

“Abbott, by his own admission, was concerned that applying for a job with the U.S. Olympic Committee posed a conflict of interest with the FBI’s handling of the Nassar investigation, which was a high profile, sensitive matter,” the report noted. “Under this circumstance and given the risk involved, we found it highly unlikely that Abbott forgot about his ultimate decision to apply for the job.”

The inspector general asked the Justice Department’s criminal division to prosecute Abbott for false statements. It declined in September michael sussmann perkins younger2020. The lesson? You can lie to federal investigators with impunity.

The second case, with an opposite outcome, involves Michael Sussmann, right, a Washington lawyer who represented the Hillary Clinton campaign, the Democratic National Committee and a tech company executive during the 2016 election. Sussmann, a former Justice Department official with expertise in cybersecurity, sought a meeting with FBI general counsel James Baker to pass on information about digital connections between a computer linked to the Trump Organization and a Russian bank with ties to the Kremlin.

Justice Department special counsel John Durham, left, appointed by former attorney general William P. Barr to probe whether there was FBI or intelligence john durham Customcommunity wrongdoing relating to allegations of Russian interference in the 2016 election, obtained the indictment announced last week, the second criminal charge arising from his two-year probe.

It alleges Sussmann told Baker at the meeting, on Sept. 19, 2016, that he wasn’t doing work on those allegations “for any client.” That led Baker “to understand that Sussmann was acting as a good citizen merely passing along information, not as a paid advocate or political operative,” when in fact, according to the indictment, Sussmann was acting on behalf of the tech executive and the Clinton campaign.

Sussmann’s “lie was material” — meaning that it could have affected the investigation — because it “misled” FBI officials “concerning the political nature of his work and deprived the FBI of information that might have permitted it more fully to assess and uncover the origins of the relevant data and technical analysis,” the indictment alleges.

As former federal prosecutor Randall D. Eliason has noted, this single false statement, before a single witness, is about as weak as a case can get. Whatever he told them, FBI officials knew full well that Sussmann represented Democrats and the Clinton campaign.

Justice Department log circularBaker didn’t take notes of the meeting. The evidence of Sussmann’s alleged misstatement, such as it is, comes from handwritten notes of the conversation made by another FBI official later that day. Sussmann also billed the meeting to the Clinton campaign, according to the indictment, an assertion his lawyers contest.

Sussmann has said he told Baker he was there on behalf of the tech client. Baker, testifying before House committee in 2018, said “I don’t remember him specifically saying that he was acting on behalf of a particular client” — a far cry from recalling a specific assertion from Sussmann that he wasn’t representing a client.

But assume that Sussmann did lie. Is there a reason to make a federal case out of it? There’s no indication, in the 27 discursive pages of the indictment, that Sussmann was knowingly trying to peddle false information. There’s no indication that the FBI, had it known the identity of Sussmann’s clients, would have proceeded much differently: it looked into the allegations and decided there wasn’t anything to them. What harm did the alleged lie cause?

Further, the Sussmann prosecution contradicts the entire predicate of Durham’s investigation. The probe was launched, more than two years ago, on the theory that the FBI was somehow hijacked by “deep state” conspirators who concocted the “Russia hoax” to prevent Donald Trump’s election. But in Durham’s retelling in the Sussmann indictment, the FBI was not a bad actor but a hapless victim of outside forces.

And consider: If the lesson of the Abbott non-prosecution is that you can repeatedly lie to federal investigators and get away with it, the lesson of the Sussmann indictment is that you bring information to the attention of federal investigators at the peril of your career and your freedom.

Where, you might ask, is Attorney General Merrick Garland in all this? In an exquisitely difficult position. Even though Durham is a Barr-appointed special counsel, Garland retains the power to supervise his investigation. But stepping in to prevent Durham from seeking this flimsy indictment risked generating a political uproar, with unsettling echoes of Barr’s heavy-handedness. Now, it is too late.

While Abbott collects his government pension, Sussmann, who has resigned from his law firm, faces ruin. These twin miscarriages of justice, each wrong on its own, are sickening when taken together.

ny times logoNew York Times, At the Supreme Court, a Plea to Reveal Secret Surveillance Rulings, Adam Liptak, right, Sept. 20, 2021. The justices will soon consider whether to adam liptakhear a case arguing that the First Amendment requires disclosure of a secret court’s major rulings, Last year, six months before he was nominated to be attorney general, Judge Merrick B. Garland wrote a forceful opinion on the importance of openness in the justice system.

Court decisions, he said, are public documents. “Indeed,” he wrote, “since at least the time of Edward III, judicial decisions have been held open for public inspection.”

“At bottom,” he wrote, this “reflects the antipathy of a democratic country to the notion of ‘secret law,’ inaccessible to those who are governed by that law.”

Last month, the Justice Department led by Mr. Garland told the Supreme Court that the public had no right of access under the First Amendment to secret decisions issued by a federal court.

The justices are set to consider whether to hear that case, which was brought by the American Civil Liberties Union and concerns decisions issued by the Foreign Intelligence Surveillance Court, at their private conference on Oct. 8.

The case Judge Garland decided last year, writing for a unanimous three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit, and the one before the justices both involved electronic surveillance, but they concerned different laws and different legal theories.

His general point about secret law, though, provides an important framework, according to a brief supporting the A.C.L.U. in the new case filed by two groups that do not always agree — the Brennan Center for Justice, which leans left, and the Americans for Prosperity Foundation, a libertarian group affiliated with the Koch family.

“Secret law of all types causes several concrete harms that are antithetical to democratic norms,” their brief said. “Secret law prevents the public from understanding and shaping the law and thus inhibits democratic accountability; disables checks on governmental abuses of the law; and weakens the quality of the law itself.”

Sept. 19

washington post logoWashington Post, Opinion: The Senate knew about Kavanaugh’s partisan history. It confirmed him anyway, Jackie Calmes (a columnist for the Los Angeles Times and the author of "Dissent: The Radicalization of the Republican Party and Its Capture of the Court"), Sept. 19, 2021 (print ed.). ‘What goes around comes around,’ the future justice warned. Now it really could.

brett kavanaugh confirmation hearing 2004 CustomNearly three years after his confirmation, Justice Brett Kavanaugh, right, remains a deeply divisive figure, the best-known but least-popular justice on the Supreme Court. Occasionally, his votes or some news story will renew the bitter sense among many Americans that he got away with a lie in denying Christine Blasey Ford’s and Debbie Ramirez’s allegations of sexual misconduct, as well as a third such accusation, from his Yale years, that Senate Republicans all but bottled up.

Earlier this summer, reports said the Justice Department had confirmed that, in 2018, the FBI received more than 4,500 tips against Kavanaugh and sent “relevant” ones to the Trump White House, where they disappeared. This month, Kavanaugh joined the 5-to-4 ruling allowing a Texas antiabortion bounty-hunting law to take effect, though it plainly violates court precedents upholding a constitutional right to abortion. To many, that provided further evidence — along with his previous support for a Louisiana antiabortion law — that he’d bamboozled Sen. Susan Collins (R-Maine), who provided the linchpin vote for his confirmation after he assured her that he respected those precedents as “settled law.”

Yet Kavanaugh’s credibility was suspect even before the sexual misconduct allegations. The Senate had received plenty of evidence, at an earlier hearing on his nomination, that he had at best misled senators and possibly lied under oath in 2004 and 2006, when he was a nominee to the U.S. Court of Appeals for the D.C. Circuit, about matters suggesting just what a partisan operator he’d been as a young lawyer. The hearing record signaled that Kavanaugh was a Republican with an ax to grind long before his televised tirade in 2018 dismissing the misconduct allegations as a Democratic “political hit” — payback for Donald Trump’s election and Kavanaugh’s role in Ken Starr’s Javert-like pursuit of the Clintons.

He warned us then: “What goes around comes around.”

And in fact, it still could. Kavanaugh could be a decisive vote if the court is drawn into vote-suppression cases and election disputes in 2022 and 2024 that couldn’t have been imagined only recently — before Trump refused to accept defeat, helped inspire an insurrection, and spurred Republicans nationwide to echo his lies about fraud and, in key states, enact laws giving party officials the final word on elections.

Sept. 17

Proof via Substack, Investigative Commentary: A Secretive Summit That Trump Attended in December of 2020 May Explain Both Trump's Role in the January 6 seth abramson graphicInsurrection and Why Both CJCS Milley and China Feared Trump Would Start a War, Seth Abramson (left, attorney, professor, Newsweek columnist, metajournalist, and New York Times bestselling author), Sept. 16-17, 2021.

Introduction: On December 27, 2020, fresh off receiving one of the most controversial presidential pardons in U.S. history—from then-president Donald Trump, the very man he had committed federal felonies to protect—Roger Stone traveled to Trump International Golf Club in West Palm Beach to “thank[ ]” his patron and criminal co-conspirator.

seth abramson proof logoOnly a few U.S. media outlets covered the astonishingly brazen meeting at the time, and surprisingly that didn’t change nine days later—when a “movement” co-led by Stone, Stop the Steal, coordinated with the 2020 Trump Campaign in a sequence of events resulting in armed insurrection and a deadly attack on the U.S. Capitol.

Back in December 2020, the Fort Lauderdale Sun-Sentinel reported on the meeting in a way that should have, but didn’t, lead to it becoming a focus of sustained national attention: per the paper, Stone went to see Trump on December 27 not just to “deliver a personal thank you to the president” but also, critically, to “counsel the president on how he could ‘ensure that Donald Trump continues as our president.’” This was during the same period that, as Proof has reported, Stone recorded a video seeking donations for arms and armor for Proud Boys and Oath Keepers planning to travel to Washington on January 6—the precise conduct Proud Boy “sergeant-at-arms” and Stone associate Ethan Nordean would later be arrested for.

So there can be no doubt that when Stone met Trump just nine days before January 6 to discuss how that day could lead to an overturning of the November 2020 election, Stone’s focus was on the Stop the Steal–cosponsored March to Save America that he was personally involved in coordinating at a logistical as well as strategic level.

The Sun-Sentinel report noted that, after posting a picture of (and commentary upon) the strange golf club meeting on Parler, Stone subsequently thought better of it and deleted all reference to the event on the far-right social media platform. At the time, he claimed it was to honor a policy supposedly in place at Trump’s golf club to prevent guests from posting pictures of the club; journalists have not yet been able to verify that any such policy exists, and a Google Image search certainly suggests it doesn’t (especially when the photograph promotes Donald Trump in any way). In any case, Stone had by then deleted not only photos of the meeting but also any reference to it on social media—and thereafter would refuse to discuss it with journalists. It did not, therefore, seem like a reticence related to an eldritch country club photography policy.

washington post logoWashington Post, Oath Keepers founder draws scrutiny from federal officials and followers for role in Jan. 6 riot, but he remains free and uncharged, Hannah Allam and Spencer S. Hsu, Sept. 17, 2021. It depends on who’s talking.

To some, Stewart Rhodes is a paramilitary commander enlisting thousands of foot soldiers to overthrow the government.

To others, he’s a couch-surfing grifter — and the most shocking thing about the involvement of his Oath Keepers group in the Jan. 6 assault on the Capitol was that some members actually showed up.

To federal prosecutors, Rhodes, 56, is “Person One,” which is how he is referenced in court filings for roughly 22 Oath Keepers associates charged in connection with the Capitol attack, including 18 who are accused of conspiracy in the largest single indictment of the probe. Five have pleaded guilty.

In the prosecution’s timeline, Rhodes coordinated with participants, allegedly giving advice about what weapons to bring and speaking with one who was part of the “stack” formation implemented moments before the group charged into the Capitol — one of the most salient images of the day.

washington post logoWashington Post, Disclosures on Milley’s Trump pushback could further politicize the military, Missy Ryan, Sept. 17, 2021. Supporters say the country’s top officer sought to protect the Constitution, but some fear his actions could compound existing problems. New revelations showing how Gen. Mark A. Milley, the nation’s top military officer, quietly maneuvered to check President Donald Trump reveal the lengths that top officials went to prevent potentially rash action, but the disclosures also threaten to thrust the military deeper into the partisan fray, former officials said.

mark milley army chief of staffA series of dramatic inside-the-room accounts, including one in which the chairman of the Joint Chiefs, right, promised to alert China’s top officer if Trump was preparing to launch an attack, provides new insight into military leaders’ response to the previous administration’s fraught final period.

But Kori Schake, a scholar at the American Enterprise Institute, said the revelations that Milley covertly acted to counter his commander in chief are “bad for the military as an institution.”

“It encourages people to do what Americans are already doing, which is viewing the military as they view the Supreme Court: apolitical when they agree with them, partisan when they don’t,” she said.

Biden comes to Milley’s defense after revelation that top general, fearing Trump, conferred with China to avoid war

The latest exposé comes in a book by Washington Post journalists Bob Woodward and Robert Costa, who write that Milley, alarmed by the possibility Trump might strike China as he tried to stay in power, reached out to Gen. Li Zuocheng in the months surrounding the 2020 election in order to dismiss any Chinese fears of a preemptive American attack, they said.

That followed other dramatic accounts involving Milley, including in a book by Washington Post journalists Carol D. Leonnig and Philip Rucker, which said the general likened the circumstances around the election to those of Nazi-era Germany.

washington post logoWashington Post, Milley says calls to Chinese counterpart were ‘perfectly within the duties and responsibilities’ of his job, John Wagner, Sept. 17, 2021. Gen. Mark A. Milley, the chairman of the Joint Chiefs of Staff, said Friday that calls he made late in the Trump administration to his Chinese military counterpart were “perfectly within the duties and responsibilities” of his job and that he would explain his actions in greater detail during an upcoming appearance before Congress.

Milley, who has come under fire after a new book revealed the conservations aimed at averting armed conflict, described the calls as “routine” and said they were done “to reassure both allies and adversaries in this case in order to ensure strategic stability.”

“I think it’s best that I reserve my comments on the record until I do that in front of the lawmakers who have the lawful responsibility to oversee the U.S. military,” Milley said, according to the Associated Press. “I’ll go into any level of detail Congress wants to go into in a couple of weeks.”

The AP reported that Milley, the Pentagon’s top uniformed officer, made his comments to reporters traveling with him to Europe. Milley and Defense Secretary Lloyd Austin are scheduled to testify Sept. 28 before the Senate Armed Services Committee.

washington post logoWashington Post, Biden comes to Milley’s defense after revelation top general, fearing Trump, conferred with China to avert war, Karoun Demirjian and John Wagner, Sept. 17, 2021 (print ed.). Critics of Gen. Mark Milley contend he should be removed as Joint Chiefs chairman after a new book disclosed the extent of his alarm that Trump might order a strike on China in the waning days of his presidency.

mark milley army chief of staffPresident Biden on Wednesday threw his full support behind the Pentagon’s top uniformed officer, right, who has come under fire after a new book revealed he privately conferred with his Chinese counterpart Gen. Li Zuocheng, left, to avert armed conflict late in the Trump administration.

Gen. Li Zuocheng“I have great confidence in General Milley,” Biden told reporters at the White House, following calls from former president Donald Trump and his Republican allies on Capitol Hill for the removal of Gen. Mark A. Milley as chairman of the Joint Chiefs of Staff.

Biden’s declaration, coinciding with efforts by the chief spokespersons for the White House and the Pentagon to stage a similar defense of the embattled general, effectively ends speculation that Milley’s assignment may be cut short. But the controversy surrounding his fitness for the job rages on — and thus far is falling mostly along party lines.

washington post logoWashington Post, Trump gave six months extra Secret Service protection to his kids, three officials. It cost taxpayers $1.7 million, David A. Fahrenthold and Carol D. Leonnig, Sept. 17, 2021. The former president required the Secret Service to devote agents and money to wealthy adults with no role in government, whom the agents trailed to ski vacations, weekend houses, a resort in Cabo San Lucas and business trips abroad.

In June, former Treasury Secretary Steven Mnuchin visited Israel to scout investments for his new company, then flew to Qatar for a conference. At the time, Mnuchin had been out of office for five months.

But, because of an order given by President Donald Trump, he was still entitled to protection by Secret Service agents. As agents followed Mnuchin across the Middle East, the U.S. government paid up to $3,000 each for their plane tickets, and $11,000 for rooms at Qatar’s luxe St. Regis Doha, according to government spending records.

In all, the records show U.S. taxpayers spent more than $52,000 to guard a multimillionaire on a business trip.

These payments were among $1.7 million in additional government spending triggered by Trump’s highly unusual order — which awarded six extra months of Secret Service protection for his four adult children and three top administration officials — according to a Washington Post analysis of new spending documents.

That $1.7 million in extra spending is still tiny in comparison to the Secret Service’s $2.4 billion budget.

But, as the records show, Trump’s order required the Secret Service to devote agents and money to an unexpected set of people: wealthy adults, with no role in government, whom the agents trailed to ski vacations, weekend houses, a resort in Cabo San Lucas, and business trips abroad.

“Who wouldn’t enjoy continuing their free limo service and easy access to restaurant tables?” said Jim Helminski, a former Secret Service executive, who said the decision appeared to show Trump giving a public service as a private benefit to his inner circle. “Even if there was a credible risk to family and associates of Trump, these people are now private citizens who can afford to hire some very talented private security firms for their personal protection.”

washington post logoWashington Post, Durham grand jury indicts lawyer whose firm represented Hillary Clinton’s campaign, Devlin Barrett and Spencer S. Hsu, Sept. 17, 2021 (print ed.). A grand jury working with special counsel John Durham’s office handed up an indictment Thursday of lawyer Michael Sussmann, who prosecutors have accused of making false statements to the FBI during the 2016 presidential campaign.

Sussmann, the indictment charges, “lied about the capacity in which he was providing ... allegations to the FBI” of potenmichael sussmann perkins youngertial cyber links between a Russian bank and a company owned by former president Donald Trump.

An attorney at Perkins Coie, a prominent law firm tied to the Democratic party, Sussmann, right, had been bracing for possible indictment.

  • Read the indictment: U.S. v. Michael Sussmann

Charging him marks a strange twist in the special counsel’s probe championed by Trump and his Republican allies, and which to date has resulted in a single conviction of a low-level FBI lawyer.

john durham CustomDurham, right, was tasked with finding crimes that may have been committed at the FBI and elsewhere in the federal government, but in charging Sussmann, the special counsel is in essence arguing that the FBI was the victim of a crime.

In a statement issued Wednesday, ahead of the indictment, lawyers for Sussmann insisted their client committed no crime.

“Michael Sussmann is a highly respected national security and cyber security lawyer, who served the U.S. Department of Justice during Democratic and Republican administrations alike,” his lawyers Sean Berkowitz and Michael Bosworth said in a joint statement. “Any prosecution here would be baseless, unprecedented, and an unwarranted deviation from the apolitical and principled way in which the Department of Justice is supposed to do its work. We are confident that if Mr. Sussmann is charged, he will prevail at trial and vindicate his good name.”

Durham grand jury examines if anyone presented false evidence to FBI

In recent months, Durham’s team has questioned witnesses about how the allegation of a possible digital tie between the Trump Organization and Alfa Bank Justice Department log circularwas presented to the FBI. Durham also has examined the authenticity of data given to the FBI.

Durham is pursuing a prosecutorial theory that Sussmann was secretly representing Hillary Clinton’s presidential campaign, which was a client of Sussmann’s firm, these people said.

It was not immediately clear how an individual lying to the FBI’s top lawyer would square with the Justice Department’s historical practice of charging false-statements cases. Typically, such cases are charged when a witness knowingly lies to a special agent conducting an investigation.

Sept. 16

Palmer Report, Opinion: Here come the January 6th superseding indictments, Bill Palmer, Sept. 16, 2021. “They’ve gotten away with it all!” It’s the rallying cry of defeatists everywhere who are so eager to feel outrage, they’ve baselessly convinced themselves that the January 6th attackers are off the hook. Meanwhile back in the real world, the indictments continue to come down – and now we’re getting into superseding indictments.

bill palmer report logo headerFor instance, prosecutors handed down superseding indictments today against Capitol attackers Ronald Sandlin and Nathaniel DeGrave, who had already been hit with lesser January 6th charges. It’s a reminder that as the evidence continues to add up, and people start cutting plea deals and ratting each other out, the indictments are continuing to get more serious.

The criminal indictments in relation to January 6th are still just getting started. That’s a fact made clear by the evidence. How high up will these indictments go, and will they reach the likes of Roger Stone and Donald Trump? We’ll see. But the narrative that they’ve “gotten away with it all” is simply fiction.

washington post logoWashington Post, Justice Thomas defends the Supreme Court’s independence and warns of ‘destroying our institutions,’ Mike Berardino and Ann E. Marimow, Sept. 16, 2021. Justice Clarence Thomas defended the independence of the Supreme Court on Thursday and warned against "destroying our institutions because they don't give us what we want, when we want it."

Clarence Thomas HRThomas, right, the longest serving justice, acknowledged that the high court has its flaws, comparing it to a “car with three wheels” that somehow still works. But he said the justices are not ruling based on “personal preferences” and suggested that the nation’s leaders should not “allow others to manipulate our institutions when we don’t get the outcome that we like.”

The justice’s remarks came during a lecture at the University of Notre Dame in which he talked about traveling by RV in the mountains of North Carolina and Tennessee with his wife, Ginni. Thomas reflected on his childhood in the segregated South and his religious faith. He also alluded several times to the political polarization in the United States.

“We’ve gotten to the point where we’re really good at finding something that separates us,” Thomas told the crowd of more than 800 students and faculty gathered at the school’s performing arts center.

Thomas is the latest justice to add his voice to the mix and publicly come to the court’s defense in the face of growing criticism that the nine justices are merely politicians in robes.

“I think the media makes it sound as though you are just always going right to your personal preference. So if they think you are antiabortion or something personally, they think that’s the way you always will come out. They think you’re for this or for that. They think you become like a politician,” Thomas said in response to a question about public misconceptions of the court.

“That’s a problem. You’re going to jeopardize any faith in the legal institutions.”

Sept. 14

amy coney barrett 9 12 2021

U.S. Supreme Court Associate Justice Amy Coney Barrett speaks to an audience at the 30th anniversary of the University of Louisville McConnell Center on Sept. 12. (Timothy D. Easley/AP)

washington post logoWashington Post, Opinion: How Amy Coney Barrett might know she’s a political hack, Jennifer Rubin, right, Sept. 14, 2021. Justice Amy Coney Barrett’s recent remarks in jennifer rubin new headshotLouisville, alongside Senate Minority Leader Mitch McConnell (R-Ky.), the architect of the frantic rush to put her on the Supreme Court in 2020 even as people were voting in the presidential election, set off gales of laughter, much eye-rolling and a new appreciation for the necessity of term limits for justices.

"My goal today is to convince you that this court is not composed of a bunch of partisan hacks,” Barrett said with a straight face. She continued, “Sometimes, I don’t like the results of my decisions. But it’s not my job to decide cases based on the outcome I want.”

The declaration might be a tad more credible if she had not chosen to appear in an overtly political setting. University of Texas law professor Steve Vladeck tells me: “I’m hard-pressed to imagine a worse place to give a speech about the court not being partisan than . . . at an event in which she was introduced by Senator McConnell. It’s either remarkably tone-deaf or it’s deliberate. Neither is encouraging.”

And it might be a tad more credible if it did not come just days after she and her fellow conservatives on the bench used the “shadow docket” to allow Texas’s antiabortion law to go into effect. Shredded by Justice Sonia Sotomayor’s dissent, no one could honestly think the order was guided solely on procedural grounds.

Barrett, who was nominated by a president who pledged to see Roe v. Wade overturned, and was picked from a list of judges vetted by antiabortion advocates, was no neutral observer in the majority’s refusal to block the law. We saw and heard during her confirmation hearing evidence of her own extreme antiabortion advocacy and her own remarks about backpedaling on decades of abortion precedent. Yet we are to believe none of her views had any impact on the shoddily argued order issued in the dead of night allowing a statute plainly in violation of Roe to go into effect?

washington post logoWashington Post, Opinion: Amy Coney Barrett wants us to believe the Supreme Court isn’t partisan. Good luck with that, Eugene Robinson, Sept. 14, 2021 (print ed.). “My goal today is to convince you that this court is not comprised of a bunch of partisan hacks,” the newest Supreme Court justice, Amy Coney Barrett, said Sunday. Good luck with that. When the court’s hard-right majority stops acting like partisan hacks, maybe we’ll believe her.

Barrett was speaking in Louisville, having been warmly introduced by Senate Minority Leader Mitch McConnell (R-Ky.), who, in 2020, rushed Barrett’s confirmation through the Senate just eight days before the November election. That unprincipled exercise in raw political power increased the conservative majority on the high court from 5-4 to 6-3 — and likely cemented the balance of power on the court for a generation.

The arithmetic means that the court’s five most right-wing justices — Clarence Thomas, Samuel A. Alito Jr., Neil M. Gorsuch, Brett M. Kavanaugh and Barrett — can impose their will even when Chief Justice John G. Roberts Jr., a conservative but also an institutionalist, decides to side with liberal justices Stephen G. Breyer, Sonia Sotomayor and Elena Kagan. That is exactly what happened earlier this month when the court let stand a bizarre and draconian Texas law that comes close to nullifying the constitutional right to abortion recognized nearly 50 years ago in Roe v. Wade.

“Judicial philosophies are not the same as political parties,” Barrett claimed in her speech. And it is true that the conservative justices (all appointed by Republicans) and the liberal justices (all appointed by Democrats) reach consensus or cross party lines on many decisions. But on the issues most associated with partisan politics — such as abortion, gun control, affirmative action and voting rights — philosophy and party affiliation function in lockstep on the high court, with Roberts sometimes straying from GOP orthodoxy.

Barrett complained that this is not how the justices see their work. She said that when the media and “hot takes on Twitter” report a decision by the court, that “makes the decision seem results-oriented. It leaves the reader to judge whether the court was right or wrong, based on whether she liked the results of the decision.”

But Barrett is being disingenuous. The Supreme Court’s rulings are not theoretical exercises in abstract legal reasoning. They have real-world results. In Texas, the second-most-populous state in the nation, many reproductive health clinics have stopped offering abortion services because they and their workers could face a ruinous avalanche of civil lawsuits brought by state- and self-appointed antiabortion vigilantes. Roe v. Wade is still on the books. But in Texas it no longer functionally applies.

Even worse is that the ruling was made on a procedural question without the court even hearing argument on the merits of the Texas law. In a rare public comment, Breyer — one of the four justices who voted to block the Texas law at least temporarily — called the ruling “very, very, very wrong.” And Breyer is very, very, very right to be upset, because even if the ruling is technically just about procedure, it has concrete and dramatic impact on any Texas woman who is or becomes pregnant and doesn’t want to be. Moreover, other states with Republican-controlled state legislatures are rushing to draft copycat laws. If the Supreme Court wants to let states ban abortion, it should just go ahead and reverse Roe v. Wade.

I see no reason to believe the court’s conservative majority will stop short of doing just that. Thomas and Alito have long made clear that they are raring to do just that. And while the three justices appointed by former president Donald Trump — Gorsuch, Kavanaugh and Barrett — all claimed deep respect for precedent at their confirmation hearings, their votes to let the Texas law go into effect say otherwise.

The conservative Federalist Society, which has become a crucial gatekeeper on the right and vetted a list of acceptable Supreme Court candidates for Trump to choose from, did its job well. The result is a solid five-vote and sometimes six-vote majority that opposes abortion, supports gun rights, questions affirmative action, doubts existing federal protection of voting rights, doesn’t see the influence of big money in politics as a problem... in short, a majority that agrees with the Republican Party’s position on issues the party most cares about.

What can Democrats and progressives do about all the terrible, reactionary, wrongheaded decisions that look likely to come in the next months and years? On voting rights, they could pass strong new federal legislation, like the John Lewis Voting Rights Advancement Act or the For the People Act. On other issues, they should prepare to battle at the state level — and to bring the same legislative creativity and tenacity that Texas conservatives brought to bear on the abortion law.

And they should ignore Barrett and others who claim this court’s decisions are nonpartisan — at least until and unless we see evidence to the contrary.

Sept. 13

ny times logoNew York Times, The Legacy of America’s Post-9/11 Turn to Torture, Carol Rosenberg Sept. 13, 2021 (print ed.). Twenty years later, the United States is still grappling with the consequences of brutal interrogations carried out in the name of national security.

Mohamedou Ould Slahi is almost clinical as he recalls details of the torture he endured in the summer of 2003 at Guantánamo Bay.

There were the guards who menaced him with attack dogs and beat him so badly they broke his ribs. The troops who shackled him, blasted him with heavy metal music and strobe lights or drenched him in ice water to deny him sleep for months on end. The mind-numbing isolation in a darkened cell without his Quran. The female guards who exposed themselves and touched him sexually in an effort to undermine his adherence to Islam.

But what left Mr. Slahi in utter despair, he said, was the interrogator who tried to threaten him into acknowledging that he was complicit in plotting a terrorist attack.

“If you don’t admit to it, we are going to kidnap your mother, rape her,” the interrogator said, by Mr. Slahi’s account.

“I remember telling them: ‘This is unfair. This is not fair,’” Mr. Slahi recalled. The interrogator, he said, responded: “I’m not looking for justice. I’m looking to stop planes from hitting buildings in my country.”

To which Mr. Slahi said he replied, “You need to get those people, not me.”

Today, Mr. Slahi, 50, is a free man in Mauritania, his homeland in West Africa, after nearly 15 years as a detainee, an early portion of that time with the threat of a death-penalty trial hanging over him.

In the end, he was released in 2016 without ever being charged, the confessions he made under duress recanted, a proposed case against him deemed by the prosecutor to be worthless in court because of the brutality of the interrogation.

“I was very naïve, and I didn’t understand how America works,” Mr. Slahi said.

For the United States, as for Mr. Slahi, the legacy of the torture remains complex and multifaceted two decades after the attacks on Sept. 11, 2001, led the George W. Bush administration to set aside legal and moral constraints in the name of national security.

The United States has long since stopped employing the so-called enhanced interrogation techniques used in what studies have concluded was a fruitless or counterproductive effort to extract lifesaving information from detainees in secret C.I.A. prisons and at Guantánamo Bay.

But the choice to turn to government-sanctioned torture remains a stain on the country’s reputation, undercutting its authority to confront repression elsewhere. Even today, some former Bush administration officials risk questioning when traveling to Europe by investigators invoking the United Nations Convention Against Torture.

After his first meeting with President Biden in June, President Vladimir V. Putin of Russia reminded journalists that Guantánamo remained open and that the C.I.A. had carried out torture in secret foreign prisons. “Is that human rights?” he asked.

ny times logoNew York Times, The trial of the men accused of plotting the 9/11 attacks is at least another year away, the presiding judge said, Carol Rosenberg, Sept. 13, 2021. The new judge presiding in the Sept. 11, 2001 case at Guantánamo Bay said on Monday that the trial of the five men accused of plotting the attacks will not begin for at least another year.

The judge, Col. Matthew N. McCall, who took over the case last month, was holding his second week of pretrial hearings at the United States naval base at Guantánamo Bay, Cuba, after a delay of more than a year and half caused by the pandemic.

The timeline set by the judge on Monday would mean the trial of the five men, including the accused mastermind of the plot, Khalid Shaikh Mohammed, would not get underway until more than 21 years after hijacked jetliners crashed into the twin towers of the World Trade Center, the Pentagon and a field in Shanksville, Penn.

Colonel McCall was ruling on objections by defense lawyers for two of the defendants, Walid bin Attash and Ramzi bin al-Shibh. The lawyers questioned his qualifications to preside in a death-penalty case because he had not read the filings and court record stretching back to the arraignment of the defendants in May 2012, including the 33,660-page transcript.

They urged him to suspend proceedings until he was properly trained as well as fully acquainted with the rulings by three previous judges in the case.

The judge replied that he had ample time, and a plan, to get up to speed, including taking a National Judicial College course on how to handle capital cases. Because of the pandemic, he will be taking it online, he said.

“At a minimum we are least one year away from trial,” said Colonel McCall, an Air Force colonel. He declared himself qualified by military commission regulations, Air Force bar and ethical obligations and “not bound by a particular timeline to get to trial.”

Colonel McCall is the fourth judge to preside at the Guantánamo court in the conspiracy case against Mr. Mohammed and the four other men who are accused of helping to plot the hijackings that killed nearly 3,000 people in New York, Pennsylvania and the Pentagon 20 years ago.

He has been a military judge for just two years, and was recently promoted to colonel, making him the youngest and least experienced of the judges who have overseen the case.

 

amy coney barrett 9 12 2021

ny times logoNew York Times, Justice Barrett says the Supreme Court’s work is not affected by politics, Adam Liptak, Sept. 13, 2021. “To say the court’s reasoning is flawed is different from saying the court is acting in a partisan manner,” Justice Amy Coney Barrett said.

Justice Amy Coney Barrett said on Sunday that political partisanship plays no role in decision making at the Supreme Court.

Speaking at the University of Louisville’s McConnell Center, in Kentucky, Justice Barrett (shown above in an Associated Press story about the event) said that “judicial philosophies are not the same as political parties.”

“To say the court’s reasoning is flawed,” she said, “is different from saying the court is acting in a partisan manner.”

Her remarks came after an introduction by Senator Mitch McConnell, the majority leader, who helped found the center. Mr. McConnell was instrumental in ensuring Justice Barrett’s rushed confirmation just weeks after the death of Justice Ruth Bader Ginsburg and weeks before President Donald J. Trump lost his bid for re-election.

The court now has six Republican appointees and three Democratic ones.

Justice Barrett’s remarks, reported by The Associated Press, were consistent with those of other members of the court who insist that partisan affiliations have nothing to do with their frequent splits along ideological lines. Justice Stephen G. Breyer, who was appointed by President Bill Clinton, has, for instance, made that point in a new book and in interviews promoting it.

Justice Barrett’s remarks followed a series of recent rulings — on asylum policy, the federal eviction moratorium and a novel Texas abortion law — in which the court’s three justices who were appointed by Democratic presidents were in dissent.

washington post logoWashington Post, Opinion: Don’t let Amy Coney Barrett fool you: Everything the court does is political, Paul Waldman, right, Sept. 13, 2021. If you want to know what paul waldmanRepublicans will say if and when the Supreme Court overturns Roe v. Wade next year, you only have to look at Justice Amy Coney Barrett’s extraordinary new display of, well, trolling.

Not every justice would have the sheer gall to make a speech about the importance of the court staying above politics while appearing at a celebration for Mitch McConnell (R-Ky). But that’s what Barrett did.

And she showed how the Supreme Court can pursue a radical ideological agenda, one aimed at creating a conservative legal and political revolution in America, while simultaneously protesting that they would never consider something as unseemly as politics.

amy coney barrett headshot notre dame photoThe occasion was an event honoring the anniversary of the McConnell Center at the University of Louisville in the senate minority leader’s home state of Kentucky. He, of course, is the man who fast-tracked her nomination in the waning days of the Trump presidency, after refusing to allow Barack Obama’s nominee a hearing on the grounds that it was too late in Obama’s term.

McConnell’s ruthlessness has already borne fruit — in no area so vividly as Roe, whose destruction both liberals and conservatives now regard as all but inevitable after Barrett and four other conservatives allowed Texas’ blatantly unconstitutional antiabortion law to take effect.

But with McConnell by her side, Barrett insisted that she and the other justices are unsullied by politics. “This court is not comprised of a bunch of partisan hacks,” she said. “Judicial philosophies are not the same as political parties,” she went on, reminding everyone that she’s an “originalist.”

In her confirmation hearings, Barrett said much the same — which Republican nominees always do. She was particularly vigorous in her insistence on her own breathtaking purity of mind, in which the grubbiness of politics was so far beneath her that she could barely see it from her perch in the intellectual clouds.

Weirdly enough, conservatives greeted her confirmation with rapturous joy, almost as if they didn’t believe her when she promised to rule in ways unmoored from any political or ideological concern or agenda.

Those conservatives popping the champagne know full well that those who call themselves “originalists,” as Barrett did, are seldom constrained from finding their way to whatever rulings they prefer on complex contemporary issues the Framers could not possibly have foreseen.

So how can Barrett say she’s not “partisan” and is motivated not by an ideological agenda but by a “judicial philosophy” unencumbered by political considerations? By defining “politics” so narrowly that it loses all relevance. The truth, however, is that everything the Supreme Court does is political, and that’s particularly true of its conservative majority.

No honest person can claim, for instance, that the string of decisions the court has issued upholding Republican efforts to solidify their minority rule — aggressive voter purges, brutal gerrymandering, all manner of techniques to make it harder to vote — are not political. Are the court’s attacks on unions not political? When Barrett and her fellow conservatives overturn Roe, is that not going to be political?

Of course it will be. Politics is about how power is distributed and used, how government relates to citizens, and how the law chooses to structure those relationships. It’s all political, because the political is where the law meets the real world.

The fact that in a particular case a justice can come up with a justification beyond “I’m just ruling this way because it’s what Republicans want” — even a persuasive one — doesn’t mean that her decisions don’t have profound political implications. And she and the other justices are well aware of those implications before they rule.

Sometimes they rule in ways that might confer political advantage on their ideological compatriots and sometimes they’ll rule in ways that might create political problems for their friends, but they do it with their eyes open every time, even as some of them continue to weave a myth of their own innocence.

The pending demise of Roe is a perfect example. If and when the conservative justices overturn that decision, they’ll do so knowing that it will almost certainly produce a backlash that will harm the Republican Party. But stopping women from being able to access abortion is such a long-standing ideological goal for conservatives — including those on the court — that they’re willing to see the GOP take some political damage.

The decision will affect politics in every corner of the country, probably in some ways we can’t anticipate. But when it happens, Republicans will say it was only the court doing the right thing, and that it was nothing more than what the Constitution and the beliefs of the Framers demand. And they’ll say it with a smirk, knowing that lying so gleefully drives liberals crazy, when the truth is far more simple: They’re the ones with the power, and they’ll use it to get what they want.

That’s politics too — a form of politics that is now playing out in a battle for control of women’s bodies and lives. And precisely because it’s political, it couldn’t be more important. Don’t let anyone get away with denying it.

Sept. 12

 

supreme court resized 2021

washington post logoWashington Post, Opinion: Breyer’s airbrushed portrayal of the judicial process, Ruth Marcus, right, Sept. 12, 2021 (print ed.). Could the timing of Supreme Court Justice ruth marcus twitter CustomStephen G. Breyer’s new book be any worse? It’s hard to imagine.

Breyer’s latest — an earnest testament to the nonpartisanship and professionalism of his conservative colleagues — comes on the heels of the decision by five of them to let a blatantly unconstitutional Texas abortion law take effect.

Breyer dissented from that move, saying it undermined “the ability to ask the Judiciary to protect an individual from the invasion of a constitutional right — an invasion that threatens immediate and serious injury.”

He dissented a few weeks earlier, when a six-justice majority rejected the Biden administration’s bid to extend the eviction moratorium. And again, a few days before that, when the same six justices rejected the Biden administration’s effort to undo the Trump administration’s “Remain in Mexico” policy for asylum seekers.

Are you beginning to see a pattern here?

Breyer’s book, loftily titled The Authority of the Court and the Peril of Politics, is an earnest plea to preserve the former and avoid the latter, a paean to the rule of law and a warning against precipitous steps — such as expanding the size of the court — that might undermine its legitimacy.

stephen breyer biography“Under the law, what is sauce for the goose is sauce for the gander; and the same is true of the public’s willingness to accept judicial decisions with which it disagrees,” Breyer, left, writes. “The rule of law is not a meal that can be ordered à la carte.”

Except that the goose and gander seem to be treated awfully differently these days. Conservative justices insist on strict adherence to statutory text, except when they don’t: See the court’s evisceration of Section 2 of the Voting Rights Act. Conservative justices lunge to prevent the perceived infringement of some constitutional rights — stepping in to block pandemic restrictions that limit religious observance — while insisting that procedural hurdles make it impossible to halt the Texas abortion law. They praise the importance of precedent, then casually toss it aside.

And the conservative justices are increasingly ordering off-menu, using their “shadow docket” to make decisions without the fig leaf of full briefing and oral argument. When the conservative justices leap to employ their power to issue emergency orders at the behest of the Trump administration but then act differently when the Biden administration comes calling, that sauce has a bitter aftertaste.

When it comes to politics, Breyer sees plenty of blame to go around — just not among his colleagues. Journalists, for one, who routinely identify the political party of the president appointing the justices when reporting on the court, a change from decades past. “Going further, they systematically label judges as conservative or liberal,” Breyer laments.

Guilty as charged — and it’s because times, and the court, have changed. To take one salient example: Four of the seven justices in the majority in Roe v. Wade were named by a Republican president; one of the two dissenters was nominated by a Democrat. Today, except in unusual and increasingly infrequent circumstances, the justices’ votes can be reliably predicted by looking at party affiliation. The labels are accurate.

ny times logoNew York Times, Behind the Texas Abortion Law, a Persevering Conservative Lawyer, Michael S. Schmidt, Sept. 12, 2021. A onetime Supreme Court clerk, Jonathan Mitchell spent years honing a legal approach that has flummoxed the courts and enraged abortion rights supporters. He is only now emerging as a pivotal player in one of the most high-profile examples yet of the erosion of the right to abortion.

Jonathan F. Mitchell grew increasingly dismayed as he read the Supreme Court’s decision in June 2016 striking down major portions of a Texas anti-abortion bill he had helped write.

Not only had the court gutted the legislation, which Mr. Mitchell had quietly worked on a few years earlier as the Texas state government’s top appeals court lawyer, but it also had called out his attempt to structure the law in a way that would prevent judicial action to block it, essentially saying: nice try.

“We reject Texas’ invitation to pave the way for legislatures to immunize their statutes” from a general review of their constitutionality, Justice Stephen G. Breyer wrote in the majority’s opinion.

For Mr. Mitchell, a onetime clerk to Justice Antonin Scalia, the decision was a stinging rebuke, and he vowed that if he ever had the chance to help develop another anti-abortion law, he would ensure it survived at the Supreme Court.

Last month, he got his chance. With its ideological balance recast by President Donald J. Trump, the court refrained from blocking a new law in Texas that all but bans abortion — a potential turning point in the long-running fight over the procedure. And it was the deeply religious Mr. Mitchell, a relative unknown outside of Texas in the anti-abortion movement and the conservative legal establishment, who was the conceptual force behind the legislation.

The court’s decision did not address the law’s constitutionality, and the legislation will no doubt face more substantive challenges. But already, the audacious legislative structure that Mr. Mitchell had conceived of — built around deputizing ordinary citizens to enforce it rather than the state — has flummoxed lower courts and sent the Biden administration and other supporters of abortion rights scrambling for some way to stop it.

Sept. 9

washington post logoWashington Post, Supreme Court to resume in-person hearings, but building still closed to public, Robert Barnes, Sept. 9, 2021 (print ed.). The Supreme Court will return to its historic courtroom in Washington to hear arguments when its term begins Oct. 4, but the hearings will be conducted without the public in attendance.

The court announced Wednesday that because of the coronavirus pandemic, the building remains closed except for official business.

“Courtroom access will be limited to the Justices, essential Court personnel, counsel in the scheduled cases, and journalists with full-time press credentials issued by the Supreme Court,” the court said in a news release.

It added: “The Court will continue to closely monitor public health guidance in determining plans.”

The court will provide live audio of the proceedings in October, November and December, as it has been doing in cases heard by teleconference.

Supreme Court resumes arguments, with all the grandeur of working from home

The court has not held arguments in person since March 2020. All were held remotely last term. But all nine justices are vaccinated against the coronavirus, the court has said, and they began to meet together for their private conferences this past spring.

It will be a new court that returns to the mahogany bench. Justice Amy Coney Barrett, nominated by President Donald Trump and confirmed by the Senate last October, has never sat for hearings with her colleagues in person.

She replaced Justice Ruth Bader Ginsburg, who died nearly a year ago. When Chief Justice John G. Roberts Jr. takes his position at the center of the court, the most senior justice, Clarence Thomas, will be at his right. Justice Stephen G. Breyer, who was confirmed three years after Thomas, in 1994, will be on Roberts’s left.

Breyer, the optimist, shakes off defeats and the calls for his retirement

The court did not announce whether its return to the bench will also mean a return to the rapid questioning style of oral arguments, where justices ask at will and jump in whenever there is a break.

During the teleconference hearings, the justices asked questions by seniority, with Roberts playing timekeeper and referee. In that format, Thomas, who has asked few questions during his nearly three decades on the court, was an active participant.

Sept. 6brett kavanaugh confirmation

Press Run, Commentary: We still don’t know who paid Kavanaugh’s $92,000 country club fee, Eric Boehlert, right, Sept. 6, 2021. An incurious press. By joining his fellow eric.boehlertconservatives on the Supreme Court in declining to block one of the country’s most restrictive abortion laws, a Texas statute that bans the procedure as early as six weeks into pregnancy, Justice Brett Kavanaugh (shown above during his Senate confirmation hearing) made good on his unspoken pledge to demolish Roe v. Wade. Kavanaugh’s actions could change the fabric of this country for decades, and empower radicals within the Republican Party to strip away more rights of Americans.

Against that dystopian backdrop let’s not forget two crucial historic facts. Kavanaugh lied his way through his confirmation hearings. Facing multiple and credible allegations of sexual assault, Kavanaugh lied about witnesses; he lied about corroboration; he lied about friendships; he lied about parties. He also lied about an array of other topics, including state drinking ages, vomiting, his yearbook, and his accusers. Kavanaugh lied about his grandfather, federal judges, warrantless wiretaps, and stolen emails.

Second, some deep-pocketed patron, or patrons, over the years have clearly covered Kavanaugh’s personal finances. Someone erased all of the many financial pitfalls he faced, including tens of thousands of dollars in credit card debt, while setting up him for a luxurious lifestyle well beyond what he could afford on the salary of a federal judge. We still don’t know which benefactors paid for Kavanaugh’s $92,000 country club initiation fee in 2016 for the Chevy Chase Club while he was making $225,000 a year, had two children in private school, and was saddled with the most debt of his life, approximately $100,000.

The staggering country club fee, which Kavanaugh plainly could not cover himself, represented the most egregious hole in Kavanaugh’s make-no-sense financial disclosure made during his nomination. For instance, in 2006, he bought a $1.2 million home in a tony suburb of Washington, D.C. and made tens of thousands of dollars of upgrades while earning $175,000 and sitting on a modest savings account.

The disclosures should have been a huge red flag for the press. “The personal finances of Supreme Court nominees regularly come under scrutiny during the congressional vetting process,” the Washington Post reported in 2018. And Kavanaugh’s finances were by far the most befuddling of any Supreme Court nominee in modern history. But the press mostly yawned through the story.

Sept. 4

washington post logoWashington Post, Biden signs executive order requiring review, release of some classified 9/11 documents, Amy B Wang and Matt Zapotosky, Sept. 4, 2021 (print ed.). President Biden on Friday signed an executive order that would require the review, declassification and release of classified government documents related to the terrorist attacks of Sept. 11, 2001.

In doing so, Biden said he was fulfilling a promise he had made while campaigning for president, in which he had vowed, if elected, to direct the U.S. Attorney General to “personally examine the merits of all cases” where the government had invoked state secrets privilege and “to err on the side of disclosure in cases where, as here, the events in question occurred two decades or longer ago.”

“When I ran for president, I made a commitment to ensuring transparency regarding the declassification of documents on the September 11, 2001 terrorist attacks on America,” Biden said in a statement Friday. “As we approach the 20th anniversary of that tragic day, I am honoring that commitment.”

Justice Department log circularThe executive order directs the Justice Department and other relevant agencies to oversee a declassification review of documents related to the FBI’s Sept. 11 investigations. The order also requires the U.S. Attorney General to release the declassified documents publicly over the next six months, Biden said.

Families of hundreds of 9/11 victims had told Biden last month that he would not be welcome at this year’s memorial events marking the 20th anniversary of the attacks unless he declassified government evidence beforehand that could link Saudi Arabia to the attack, according to a letter sent to the White House in August.

Shortly afterward, the Justice Department pledged to review evidence related to the 9/11 terrorist attacks, a move that an advocate for some of the families criticized as insufficient. In a court filing last month, the Justice Department already had said the FBI was reviewing the materials for possible public disclosure.

But Biden’s executive order imposes new conditions and timetables on that process, commanding the bureau to review some materials by Sept. 11 and others on staggered deadlines over the next 180 days.

Biden also seemed to direct the bureau to favor disclosure in questionable calls, writing that material should not stay secret if there was “significant doubt” about the need for it to remain classified, and that the attorney general and others should determine “whether the public interest in disclosure of the information outweighs the damage to the national security that might reasonably be expected from disclosure.”

The FBI said in a statement reacting to the order: “The FBI will continue to work in coordination with the Department of Justice and other agencies to declassify and release documents related to the 9/11 investigation.” The Justice Department declined to comment to The Washington Post.

In the shadow of the towers: Five lives and a world transformed

Some 9/11 families immediately praised the executive order Friday. One group, 9/11 Families United, which represents more than 10,000 people affected by the attacks, said in a statement that Biden’s order “looks like a true turning point.”

“We have been fighting the FBI and intelligence community for too long,” said Terry Strada, whose husband, Tom, was killed in the World Trade Center. “There is much more work to be done to secure justice for our murdered loved ones and to rectify the immense damage the 20-year shroud of secrecy has caused, but we now are optimistic that President Biden will be helping us achieve those goals.”

Brett Eagleson, who lost his father, Bruce Eagleson, in the 9/11 attacks, commended Biden for signing the executive order, calling it “a critical first step” to a full accounting.

“We will closely watch this process to ensure the Justice Department and FBI follow through, act in good faith, and help our families uncover the truth in our pursuit of justice against the Saudi government,” Brett Eagleson said in a statement. “The first test will be on 9/11, and the world will be watching.”

Several members of Congress, including Sen. Kirsten Gillibrand (D-N.Y.), said they supported Biden’s decision to order the declassification review of 9/11 documents. Rep. Adam B. Schiff (D-Calif.), chairman of the House Intelligence Committee, said Friday the committee would closely oversee the review process “to ensure that all agencies adhere to the president’s guidance to apply the maximum degree of transparency allowed by law when conducting the review.”

Biden has not yet made public his plans for the 20th anniversary of the attacks. Last year, while campaigning for president, he attended Sept. 11 memorial events in Lower Manhattan and Shanksville, Pa.

“My heart continues to be with the 9/11 families who are suffering, and my Administration will continue to engage respectfully with members of this community,” Biden said Friday. “I welcome their voices and insight as we chart a way forward.”

Sept. 3

supreme court resized 2021

ny times logoNew York Times, Analysis: Texas Abortion Case Highlights Concern Over Supreme Court’s ‘Shadow Docket,’ Charlie Savage, right, Sept. 3, 2021 (print ed.). A charlie savageprocess intended to help the court deal with emergency petitions and routine matters has grown into a backdoor way of making major policy decisions.

Most of the time, the Supreme Court appears to the public like a cautiously deliberative body. Before issuing major rulings, the justices pore over extensive written briefs, grill lawyers in oral arguments and then take months to draft opinions explaining their reasoning, which they release at precisely calibrated moments.

Then there is the “shadow docket.”

With increasing frequency, the court is taking up weighty matters in a rushed way, considering emergency petitions that often yield late-night decisions issued with minimal or no written opinions. Such orders have reshaped the legal landscape in recent years on high-profile matters like changes to immigration enforcement, disputes over election rules, and public-health orders barring religious gatherings and evictions during the pandemic.

The latest and perhaps most powerful example came just before midnight on Wednesday, when the court ruled 5 to 4 to leave in place a novel Texas law that bars most abortions in the state — a momentous development in the decades-long judicial battle over abortion rights.

The court spent less than three days dealing with the case. There were no oral arguments before the justices. The majority opinion was unsigned and one paragraph long. In a dissent, Justice Elena Kagan said the case illustrated “just how far the court’s ‘shadow-docket’ decisions may depart” from the usual judicial process and said use of the shadow docket “every day becomes more unreasoned, inconsistent and impossible to defend.”

There is nothing new about the court having an orders docket where it swiftly disposes of certain matters. But with the notable exception of emergency applications for last-minute stays of execution, this category of court activity has traditionally received little attention. That is because for the most part, the orders docket centers on routine case management requests by lawyers, like asking for permission to submit an unusually long brief.

The court also uses it to dispose of emergency appeals. Each justice handles requests from a different region, and can reject them or bring them to the full court. And increasingly, the court has been using its orders docket — which was deemed the “shadow docket” in 2015, in an influential law journal article by William Baude, a University of Chicago law professor — to swiftly decide whether to block government actions, turning it into a powerful tool for affecting public policy without fully hearing from the parties or explaining its actions in writing.

Criticism of the use of the shadow docket has been building for years but rose to a new level with the Texas abortion case. The chairman of the House Judiciary Committee, Representative Jerrold Nadler, Democrat of New York, denounced the ruling, saying it allowed what he portrayed as a “flagrantly unconstitutional law” to take force and calling it “shameful” that the court’s majority did so without hearing arguments or issuing any signed opinion. He announced hearings.

“Because the court has now shown repressive state legislatures how to game the system, the House Judiciary Committee will hold hearings to shine a light on the Supreme Court’s dangerous and cowardly use of the shadow docket,” he said in a statement. “Decisions like this one chip away at our democracy.”

Liberals are not the only ones who see problems in the increasing importance of the court’s exercise of power through emergency orders. When the court issued a shadow-docket order last year letting a Trump administration immigration rule take effect — overturning a lower-court judge’s nationwide injunction blocking the rule — Justice Neil M. Gorsuch, a conservative, supported that result but lamented the process that had led up to it.

“Rather than spending their time methodically developing arguments and evidence in cases limited to the parties at hand, both sides have been forced to rush from one preliminary injunction hearing to another, leaping from one emergency stay application to the next, each with potentially nationwide stakes, and all based on expedited briefing and little opportunity for the adversarial testing of evidence,” he wrote.

But while there is broad consensus that the Supreme Court’s use of the shadow docket for high-profile rulings is growing — a trend playing out within an increasingly polarized judiciary and nation — defining the precise nature of the problem is complicated and subject to dispute.

“I don’t think anyone thinks it is good to have a lot of last-minute requests for emergency relief that the court has to focus on and decide,” said Samuel Bray, a University of Notre Dame law professor who testified about the shadow docket this summer before President Biden’s commission studying possible Supreme Court changes. “But there are difficult questions about what has caused the high-profile use of the shadow docket — and what to do about it.”

Over the past decade or so, such rulings have clearly become more common. Typically, they involve emergency appeals of lower-court rulings over the question of whether to block some change — like a new law or government policy — so it cannot be enforced while the slow process of litigating plays out

One way of measuring the Supreme Court’s use of its shadow docket to issue major decisions is how often it has used that power to summarily disrupt the status quo — such as by granting or vacating an injunction when a lower court had ruled a different way.

stephen vladeck resizedAccording to data compiled by Stephen I. Vladeck, a University of Texas at Austin law professor who has written critically about the rise of the shadow docket, cases in which the Supreme Court disrupted the status quo numbered in the single digits each year from 2005 to 2013, but have been rising since, reaching 19 in its last term and 19 again so far this term.

“If they are going to issue rulings that profoundly change the law, I think they have an obligation to write and to explain why they are doing it,” said Mr. Vladeck, right, who also testified on the issue before the Supreme Court commission. “They have an obligation to the lower courts, to the other parties in the case and to other public officials who need guidance.”

But as the furor over the Texas abortion rights case shows, that measure is imperfect. In that case, rather than summarily disrupting the status quo established by a lower court, the Supreme Court majority decided not to overturn what an appeals court had done.

The most restrictive in the country. The Texas abortion law, known as Senate Bill 8, amounts to a nearly complete ban on abortion in the state. It prohibits most abortions after about six weeks of preganancy and makes no exceptions for pregnancies resulting from incest or rape.

Citizens, not the state, will enforce the law. The law effectively deputizes ordinary citizens — including those from outside Texas — allowing them to sue clinics and others who violate the law. It awards them at least $10,000 per illegal abortion if they are successful.

Patients cannot be sued. The law allows doctors, staff and even a patient’s Uber driver to become potential defendants.

The Supreme Court’s decision.

The Supreme Court refused just before midnight on Wednesday to block a Texas law prohibiting most abortions, less than a day after it took effect and became the most restrictive abortion measure in the nation. The vote was 5 to 4, with Chief Justice John G. Roberts Jr. joining the court’s three liberal members in dissent.

In an interview, Mr. Baude — the professor who coined the term “shadow docket,” and who is a member of Mr. Biden’s Supreme Court commission — said another reason the debate was so complicated was that there were different types of worries over the court’s growing use of its emergency orders to swiftly resolve matters, and they only partly overlapped.

One worry, he said, is substantive: The court may reach the wrong result because it is rushing. Another is procedural: Regardless of the result, it is not fair to parties who do not get a chance to be fully heard before the decision. A third is about transparency: The court should fully explain itself and disclose how each justice voted.

But the uproar over the majority’s handling of the Texas anti-abortion law, he said, seems most centered on another worry: that the conservative majority on the court is not being evenhanded or consistent about when it chooses to intervene with an emergency order.

ny times logoNew York Times, Opinion: In the Dead of Night, the Supreme Court Proved It Has Too Much Power, Jamelle Bouie, right, Sept. 3, 2021. The Supreme Court’s recent jamelle bouiereliance on the so-called shadow docket to make major rulings — on display, this week, in its decision to let Texas end legal abortion after six weeks, at least for now — throws the problem of judicial power in a representative democracy into sharp relief.

First, some background. The shadow docket refers to emergency orders and decisions made outside of the court’s regular docket of cases, usually without oral arguments. The term was coined six years ago by William Baude, a law professor at the University of Chicago, but the division between regular cases and this more specialized set has been around for decades. All it takes to get on the docket is to appeal to one justice, who then decides whether to forward the matter to the rest of the court.

Many of these orders are minor and procedural, but others deal with high-stakes issues of national concern. In recent years, and especially during the Trump administration, the court has relied on the shadow docket to make consequential decisions on a wide range of issues. Often, the court issues its decisions from the shadow docket without signed opinions or detailed explanations of the kind you would find in an argued case.

In the last five months, the Supreme Court has used the shadow docket to strike down Covid restrictions on group religious activities in private homes, force President Biden to reinstate the Trump-era “remain in Mexico” policy for asylum seekers from Central America and block the extension of an emergency federal ban on evictions, putting countless Americans at risk of homelessness.

The vote on the Texas abortion law came Wednesday, in the dead of night, when a narrow majority of the court declined to stop Texas from implementing a new ban on abortions past the sixth week of pregnancy, which is often before many women even know they are pregnant.

The law is a flagrant violation of Roe v. Wade. But because Texas has deputized private citizens to enforce the ban rather than rely on executive authority — a deliberate choice meant to prevent federal courts from blocking the law — the high court has declined to act against the ban, citing the “complex and novel antecedent procedural questions” of the case. For Justice Sonia Sotomayor, this is nonsense. “The court,” she wrote in her dissent, “has rewarded the state’s effort to delay federal review of a plainly unconstitutional statute, enacted in disregard of the court’s precedents, through procedural entanglements of the state’s own creation.”

Abortion rights are a dead letter in Texas, at least temporarily. And Republican lawmakers in other parts of the country now have a clear road map for making the same thing happen in their own states. Republican legislative leaders in Florida, for example, have already said they are working on a similar law.

Another way to put this is that the court has essentially nullified the constitutional rights of millions of American women without so much as an argument. It has shaken the constitutional landscape — refusing to apply the law as it was decided in previous cases — while shielding itself from the scrutiny that might come under normal circumstances. The court has transformed the constitutional status quo under cover of night. This isn’t judicial review as much as it is a raw exercise of judicial power.

It is common enough knowledge that the Supreme Court’s power to shape American society is a function not so much of its formal power under the Constitution as it is of its popular legitimacy. And much of that legitimacy rests on the idea that the court is acting fairly, transparently and in good faith. It rests, as well, on the idea of the court as a partner in governance and a safeguard for the rights of the American people.

The court’s abuse of the shadow docket is in that category: actions that threaten to place the rule of men over the rule of law. It’s not that the court is political — that is to be expected — but that its conservative majority is acting in arbitrary, secretive ways, with hardly any justification other than its own power to do so.

The shadow docket aside, the extent to which political outcomes in America rest on the opaque machinations of a cloistered, nine-member clique is the clearest possible sign that we’ve given too much power to this institution. We can have self-government or we can have rule by judge, but we cannot have both.

ny times logoNew York Times, Editorial: The Abortion Ruling Was Stunning but Not Surprising, Editorial Board, Sept. 3, 2021. Many Americans were caught off guard by the Supreme Court’s decision late Wednesday night to let stand a blatantly unconstitutional Texas law that bans nearly all abortions in the state.

They shouldn’t have been. Anti-choice activists, lawmakers and judges have been laying the groundwork for this moment since the court decided Roe v. Wade in 1973.

For nearly half a century, the anti-abortion movement had to settle for partial victories, constantly chipping away at women’s right to an abortion, but never achieving the ultimate goal of overturning Roe itself. Now, with a hard-right supermajority on the bench for this purpose, that goal is within reach — even as a solid and consistent majority of the American public continues to believe abortion should be legal in all or most cases.

For the majority of Americans who support a woman’s right to comprehensive reproductive health, the Supreme Court is now an adversary. Any long-term success will mean fighting the same way anti-abortion campaigners have for decades — in the political realm, by winning elections at the state and federal levels and changing laws as a result. Unlike the justices, elected leaders can be voted out if they don’t listen to their constituents. It’s a long and difficult road, but it’s the one all lasting reforms in a democracy must take.

brett kavanaugh flag

 washington post logoWashington Post, Sen. Collins asserted that Kavanaugh considered abortion rights settled law. His decision on Texas’s ban suggests otherwise, Felicia Sonmez, Sept. 3, 2021 (print ed.). Sen. Susan Collins emerged from her face-to-face meeting with then-Supreme Court nominee Brett M. Kavanaugh, above, in August 2018 insisting that he had reassured her that Roe v. Wade was settled law.

susan collins official SmallTwo months later, Collins (R-Maine), right, who supports abortion rights, declared in a lengthy Senate floor speech that Kavanaugh had a “record of judicial independence” and dismissed the notion that he might overturn precedent. She later would vote to confirm him to the lifetime post.

Collins’s past assertions came into sharp relief Wednesday as Kavanaugh joined four of his fellow conservatives on the court in declining to block one of the country’s most restrictive abortion laws, a Texas statute that bans the procedure as early as six weeks into pregnancy with no exception for rape or incest. The court’s action stands as the most serious threat to the landmark ruling establishing a woman’s right to abortion in nearly 50 years.

Collins’s support for Kavanaugh — and her insistence that he would uphold Roe — was crucial in installing then-President Donald Trump’s nominee to the Supreme Court as the Senate confirmed him by one of the narrowest margins in history, a near party-line 50-to-48 vote.

His decision late Wednesday night revives questions of whether Collins was misled by the nominee or whether she was intent on supporting him no matter his views on abortion rights. Collins’s full-throated endorsement of Kavanaugh and her swing vote means she will always be associated with this Supreme Court justice, winning praise from conservatives and widespread criticism from liberals.

In a statement Thursday afternoon, Collins called the Texas law “extreme and harmful.” She made no specific mention of Kavanaugh but noted that of the six Supreme Court justices she has voted to confirm, three voted with the majority on the Texas ban, while three voted with the minority.

“The Supreme Court recognized that there are ‘serious questions’ regarding the constitutionality of the Texas law, and it emphasized that its recent ruling does not address those questions,” Collins said. “I oppose the Court’s decision to allow the law to remain in effect for now while these underlying constitutional and procedural questions are litigated.”

Abortion providers say the Texas ban — which relies on private citizens to sue people who help women obtain abortions prohibited under the law — effectively eliminates the guarantee in Roe v. Wade and subsequent Supreme Court decisions that women have a right to end their pregnancies before viability, and that states may not impose undue burdens on that decision. It was specifically designed to turn away pre-enforcement challenges in federal courts.

Collins’s support for Kavanaugh became a major issue in her bid for reelection in 2020. Some abortion rights groups withdrew their support for Collins, and a major LGBTQ rights group, the Human Rights Campaign, endorsed her Democratic opponent, Maine’s then-House Speaker Sara Gideon, citing Collins’s vote to confirm Kavanaugh, as well as “her support of Mitch McConnell and Donald Trump’s agenda.”

Nonetheless, the senator successfully won reelection, taking 51 percent to Gideon’s 42.4 percent. Collins, 68, is not up for reelection until 2026.

Sept. 2

supreme court Custom

ny times logoNew York Times, Supreme Court, Breaking Silence, Won’t Block Texas Abortion Law, Adam Liptak, J. David Goodman and Sabrina Tavernise, Updated Sept. 2, 2021, 1:40 a.m. ET. Legislation Is Nation’s Most Restrictive. The 5-to-4 vote came less than a day after the law went into effect, prohibiting abortions after six weeks. Texas lawmakers drafted the measure with the goal of frustrating efforts to challenge it in federal court.

The Supreme Court refused just before midnight on Wednesday to block a Texas law prohibiting most abortions, less than a day after it took effect and became the most restrictive abortion measure in the nation.

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

The majority opinion was unsigned and consisted of a single long paragraph. It said the abortion providers who had challenged the law in an emergency application to the court had not made their case in the face of “complex and novel” procedural questions. The majority stressed that it was not ruling on the constitutionality of the Texas law and did not mean to limit “procedurally proper challenges” to it.

But the ruling was certain to fuel the hopes of abortion opponents and fears of abortion rights advocates as the court takes up a separate case in its new term this fall to decide whether Roe v. Wade, the landmark 1973 decision establishing a constitutional right to the procedure, should be overruled. It also left Texas abortion providers turning away patients as they scrambled to comply with the law, which prohibits abortions after roughly six weeks.

All four dissenting justices filed opinions.

“The court’s order is stunning,” Justice Sonia Sotomayor wrote in her dissent. “Presented with an application to enjoin a flagrantly unconstitutional law engineered to prohibit women from exercising their constitutional rights and evade judicial scrutiny, a majority of justices have opted to bury their heads in the sand.”

“The court has rewarded the state’s effort to delay federal review of a plainly unconstitutional statute, enacted in disregard of the court’s precedents, through procedural entanglements of the state’s own creation,” Justice Sotomayor wrote. “The court should not be so content to ignore its constitutional obligations to protect not only the rights of women, but also the sanctity of its precedents and of the rule of law.”

Chief Justice Roberts wrote that he would have blocked the law while appeals moved forward.

“The statutory scheme before the court is not only unusual, but unprecedented,” he wrote. “The legislature has imposed a prohibition on abortions after roughly six weeks, and then essentially delegated enforcement of that prohibition to the populace at large. The desired consequence appears to be to insulate the state from responsibility for implementing and enforcing the regulatory regime.”

The chief justice underscored the tentative nature of the majority’s ruling. “Although the court denies the applicants’ request for emergency relief today,” he wrote, “the court’s order is emphatic in making clear that it cannot be understood as sustaining the constitutionality of the law at issue.”

Justice Elena Kagan criticized the court’s practice of deciding important issues in rushed decisions without full briefing or oral argument — on what Supreme Court specialists call its “shadow docket.”

“Today’s ruling illustrates just how far the court’s ‘shadow-docket’ decisions may depart from the usual principles of appellate process,” she wrote. “That ruling, as everyone must agree, is of great consequence.”

“Yet the majority has acted without any guidance from the court of appeals — which is right now considering the same issues,” she wrote. “It has reviewed only the most cursory party submissions, and then only hastily. And it barely bothers to explain its conclusion — that a challenge to an obviously unconstitutional abortion regulation backed by a wholly unprecedented enforcement scheme is unlikely to prevail.”

“In all these ways,” Justice Kagan wrote, “the majority’s decision is emblematic of too much of this court’s shadow-docket decision making — which every day becomes more unreasoned, inconsistent and impossible to defend.”

The Texas law, known as Senate Bill 8, amounts to a nearly complete ban on abortion in Texas because 85 to 90 percent of procedures in the state happen after the sixth week of pregnancy, according to lawyers for several clinics. On Tuesday night, clinics were scrambling to see patients until the minute the law went into effect, with six-hour waits for procedures in some places. By Wednesday, the patient lists had shrunk, clinic workers said in interviews.

The law is the latest battle over abortion rights in the United States. In recent years, anti-abortion campaigners have found success through laws in state legislatures, and a broad swath of the South and the Midwest now has limited access to abortions.

Texas has about 24 abortion clinics, down from roughly 40 before 2013, when the State Legislature imposed a previous round of restrictions. It was not immediately clear on Wednesday if every one of them was complying with the law, which the Republican governor signed in May, but many, in interviews, said they were.

Sept. 1

ny times logoNew York Times, After Supreme Court Silence, Texas Clinics Face Near-Total Abortion Ban, Adam Liptak and Sabrina Tavernise, Sept. 1, 2021. The law went into effect after the Supreme Court failed to act on a request to block it, prompting clinics in the state to begin to turn away women. The justices may still rule on the request, which is just an early step in what is expected to be an extended legal battle over the law.

texas mapA Texas law prohibiting most abortions after about six weeks of pregnancy went into effect on Wednesday after the Supreme Court failed to act on a request to block it, ushering in the most restrictive abortion law in the nation and prompting clinics in the state to turn away women seeking the procedure.

The justices may still rule on the request, which is just an early step in what is expected to be an extended legal battle over the law. In the meantime, though, access to abortion in Texas has become extremely limited, the latest example of a Republican-led state imposing new constraints on ending pregnancies.

The law, known as Senate Bill 8, amounts to a nearly complete ban on abortion in Texas, one that will further fuel legal and political battles over the future of Roe v. Wade, the 1973 decision that established a constitutional right to abortion. The law makes no exceptions for pregnancies resulting from incest or rape.

supreme court buildingIn an emergency application urging the justices to intervene, abortion providers in the state wrote that the law “would immediately and catastrophically reduce abortion access in Texas, barring care for at least 85 percent of Texas abortion patients (those who are six weeks pregnant or greater) and likely forcing many abortion clinics ultimately to close.”

Supreme Court precedents forbid states from banning abortion before fetal viability, the point at which fetuses can sustain life outside the womb, or about 22 to 24 weeks.

But the Texas law was drafted to make it difficult to challenge in court. Usually, a lawsuit seeking to block a law because it is unconstitutional would name state officials as defendants. But the Texas law bars state officials from enforcing it and instead deputizes private individuals to sue anyone who performs the procedure or “aids and abets” it.

The patient may not be sued, but doctors, staff members at clinics, counselors, people who help pay for the procedure, even an Uber driver taking a patient to an abortion clinic are all potential defendants. Plaintiffs, who need not have any connection to the matter or show any injury from it, are entitled to $10,000 and their legal fees recovered if they win. Prevailing defendants are not entitled to legal fees.

The immediate question for the justices is not whether the Texas law is constitutional. It is, rather, whether it may be challenged in federal court. The law’s defenders say that, given the way the law is structured, only Texas courts can rule on the matter and only in the context of suits against abortion providers for violating the law.

Amy Hagstrom Miller, the chief executive of Whole Woman’s Health, which operates four clinics in Texas, said they would comply with the law and that no abortions would be scheduled for any patient whose ultrasound detects a fetal heartbeat.

She said the threat of being sued individually under the law was worrying for her staff, including doctors and administrators, and she did not want to expose them to that risk.

“Our staff and doctors would be put in the position of having to defend themselves against accusations of breaking the law,” she said. “It’s sobering. This is way beyond anything any of us had imagined.”

At Whole Woman’s Health of Fort Worth, the last patient appointment was completed at 11:56 p.m. on Tuesday, said Marva Sadler, senior director of clinic services. She said doctors started at 7:30 a.m. on Tuesday morning and treated 117 patients, far more than usual.

washington post logoWashington Post, Opinion: Say goodbye to Roe v. Wade, Paul Waldman, right, Sept. 1, 2021. Thanks to the state of Texas, the country’s most paul waldmanconservative court of appeals and the U.S. Supreme Court, abortion has been all but outlawed in the second-largest state in America. Roe v. Wade now hangs by a fraying thread, with six justices sharpening their scissors to sever it once and for all.

Texas recently passed the most draconian abortion law in the United States, one that quite intentionally violates Roe v. Wade. A federal district court was about to have a hearing on the law, one that would probably have resulted in a stay on the law while the legal case against it is decided.

But the U.S. Court of Appeals for the 5th Circuit — the most conservative of the federal appeals courts — stepped in and canceled that hearing. The plaintiffs suing to stop the law made an emergency appeal to the Supreme Court, which the justices chose not to act on before Sept. 1, when the law was slated to go into effect.

ny times logoNew York Times, Citizens, Not the State, Will Enforce New Abortion Law in Texas, Sabrina Tavernise, July 9, 2021, Updated Sept. 1, 2021. The measure bans abortions after about six weeks of pregnancy. And it effectively deputizes ordinary citizens to sue people involved in the process.

People across the country may soon be able to sue abortion clinics, doctors and anyone helping a woman get an abortion in Texas, under a new state law that contains a legal innovation with broad implications for the American court system.

The provision passed the State Legislature this spring as part of a bill that bans abortion after a doctor detects a fetal heartbeat, usually at about six weeks of pregnancy. Many states have passed such bans, but the law in Texas is different.

Ordinarily, enforcement would be up to government officials, and if clinics wanted to challenge the law’s constitutionality, they would sue those officials in making their case. But the law in Texas prohibits officials from enforcing it. Instead, it takes the opposite approach, effectively deputizing ordinary citizens — including from outside Texas — to sue clinics and others who violate the law. It awards them at least $10,000 per illegal abortion if they are successful.

“It’s completely inverting the legal system,” said Stephen Vladeck, a constitutional law professor at the University of Texas at Austin. “It says the state is not going to be the one to enforce this law. Your neighbors are.”

The result is a law that is extremely difficult to challenge before it takes effect on Sept. 1 because it is hard to know whom to sue to block it, and lawyers for clinics are now wrestling with what to do about it. Six-week bans in other states have all been blocked as they make their way through the court system.

washington post logoWashington Post, Opinion: The 5th Circuit is staking out a claim to be America’s most dangerous court, Ruth Marcus, right, Sept. 1, 2021 (print ed.). The Supreme ruth marcus twitter CustomCourt is, no doubt, the nation’s most powerful court. But the 5th Circuit, the federal appeals court that covers Louisiana, Mississippi and Texas, is staking out a claim to be the most dangerous — the least wedded to respecting precedent or following an orderly judicial process.

The 5th is arguably the most conservative among the country’s dozen appeals courts. It inclined in that direction even before President Donald Trump managed to install six nominees. And they constitute quite a bunch: Stuart Kyle Duncan, who said the Supreme Court’s 2015 ruling establishing a right to same-sex marriage “imperils civic peace” and “raises a question about the legitimacy of the court.” Cory Wilson, who tweeted about Hillary Clinton using the hashtag #CrookedHillary, called the Affordable Care Act “illegitimate” and said he supported overturning Roe v. Wade. James C. Ho, who issued a concurring opinion lamenting the “moral tragedy of abortion.”

How conservative is the court, where 12 of 17 active judges were named by Republican presidents? “As conservative a federal appeals court as any of us have seen in our lifetimes,” says Stephen I. Vladeck, a law professor at the University of Texas, noting that even as the circuit’s conservatives tend toward the extreme end of the spectrum, its liberals aren’t all that liberal.

 

August

Aug. 29

washington post logoWashington Post, Breyer, the optimistic justice, shakes off defeats but warns of threats to Supreme Court’s authority, Robert Barnes, Aug. 29, 2021 (print ed.).  Justice Stephen G. Breyer is on a losing streak.

Three times in the past 14 days, he dissented as the Supreme Court issued a series of emergency orders overturning pandemic-related bans and telling the executive branch it must reinstate a Trump-era immigration policy President Biden halted on his first day in office.

But as Breyer sat for an interview in his overstuffed chambers overlooking the Capitol on Friday — batting away questions about retirement and whether the upcoming term would be his last — the 83-year-old justice was anything but grim.

“Only sometimes when I’m in dissent do I get in a really black mood,” Breyer explained. “When I worked for [Supreme Court Justice] Arthur Goldberg and we’d lose something when I’d think we were so right, he’d say: ‘What do you want me to do? Cry?’ ”
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Instead, Breyer has adopted Goldberg’s attitude: “Ok, let’s go on to the next one.” Breyer adds: “If that’s Pollyanna, I’m Pollyanna.”

stephen breyer full portraitBreyer might have been a bit fixated on the description — excessively optimistic or cheerful — because he was just told that’s how some in his liberal fan base have characterized the assertions he makes about the Supreme Court’s image in his new book, The Authority of the Court and the Peril of Politics.

It is a slim volume based on a speech he gave at Harvard Law School in the spring. He argues the court’s authority is undermined by attempts to fit justices into ideological camps and attribute their disagreements to partisan inclinations. He warns that structural changes to the court, such as liberal proposals to offset the current conservative majority by adding justices, could come at too high a cost.

Breyer warns to think ‘long and hard’ about court-packing

“A short-term victory in the great zero-sum game that our politics has become could bring about grave structural damage not only to an essential constitutional institution but also to our system of government,” Breyer writes.

If the book could be summed up in a paragraph, it would be this one: “My experience from more than thirty years as a judge has shown me that anyone taking the judicial oath takes it very much to heart. A judge’s loyalty is to the rule of law, not the political party that helped to secure his or her appointment.”

Skeptical? Breyer responds: “I’m giving my experience. So you can’t say I’m a Pollyanna if that’s my experience.”

His point is that the court’s finality is acknowledged by the public and the other branches of government because it is seen as independent.

“The public now expects presidents to accept decisions of the Court, including those that are politically controversial,” Breyer writes. “The Court, with no troops of its own, has reached the point of being able to impose a significant check — a legal check — upon the executive’s actions, even in cases where the executive strongly disagrees with the outcome.”

Aug. 27stephen breyer

ny times logoNew York Times, Justice Stephen Breyer Talks Retirement and Politics at the Supreme Court, Adam Liptak, right, Aug. 27, 2021. In an interview prompted by his new adam liptakbook, the 83-year-old leader of the court’s liberal wing, shown above in a file photo, said he was working on a decision about when to step down.

Justice Stephen G. Breyer says he is struggling to decide when to retire from the Supreme Court and is taking account of a host of factors, including who will name his successor. “There are many things that go into a retirement decision,” he said.

He recalled approvingly something Justice Antonin Scalia had told him.

“He said, ‘I don’t want somebody appointed who will just reverse everything I’ve done for the last 25 years,’” Justice Breyer said during a wide-ranging interview on Thursday. “That will inevitably be in the psychology” of his decision, he said.

“I don’t think I’m going to stay there till I die — hope not,” he said.

Justice Breyer, 83, is the oldest member of the court, the senior member of its three-member liberal wing and the subject of an energetic campaign by liberals who want him to step down to ensure that President Biden can name his successor.

supreme court buildingThe justice visited the Washington bureau of The New York Times to discuss his new book, “The Authority of the Court and the Peril of Politics,” scheduled to be published next month by Harvard University Press. It prompted questions about expanding the size of court, the so-called shadow docket and, inevitably, his retirement plans.

The book explores the nature of the court’s authority, saying it is undermined by labeling justices as conservative or liberal. Drawing a distinction between law and politics, Justice Breyer wrote that not all splits on the court were predictable and that those that were could generally be explained by differences in judicial philosophy or interpretive methods.

In the interview, he acknowledged that the politicians who had transformed confirmation hearings into partisan brawls held a different view, but he said the justices acted in good faith, often finding consensus and occasionally surprising the public in significant cases.

“Didn’t one of the most conservative — quote — members join with the others in the gay rights case?” he asked in the interview, referring to Justice Neil M. Gorsuch’s majority opinion last year ruling that a landmark civil rights law protects gay and transgender workers from workplace discrimination.

Justice Breyer made the point more broadly in his new book. “My experience from more than 30 years as a judge has shown me that anyone taking the judicial oath takes it very much to heart,” he wrote. “A judge’s loyalty is to the rule of law, not the political party that helped to secure his or her appointment.”

Progressive groups and many Democrats were furious over Senate Republicans’ failure to give a hearing in 2016 to Judge Merrick B. Garland, President Barack Obama’s third Supreme Court nominee. That anger was compounded by the rushed confirmation last fall of Justice Amy Coney Barrett, President Donald J. Trump’s third nominee, just weeks after the death of Justice Ruth Bader Ginsburg and weeks before Mr. Trump lost his bid for re-election.

Liberals have pressed Mr. Biden to respond with what they say is corresponding hardball: expanding the number of seats on the court to overcome what is now a 6-to-3 conservative majority. Mr. Biden responded by creating a commission to study possible changes to the structure of the court, including enlarging it and imposing term limits on the justices.

He was in a characteristically expansive mood, but he was not eager to discuss retirement. Indeed, his publisher had circulated ground rules for the interview, saying he would not respond to questions about his plans.

washington post logoWashington Post, Supreme Court strikes down CDC’s eviction moratorium, Robert Barnes, Rachel Siegel and Jonathan O'Connell, Aug. 27, 2021 (print ed.). A divided Supreme Court has ended a national moratorium on evictions in parts of the country ravaged by the coronavirus pandemic, removing protections for millions of Americans who have not been able to make rent payments.

A coalition of landlords and real estate trade groups in Alabama and Georgia challenged the latest extension of a moratorium imposed by the Centers for Disease Control and Prevention, issued Aug. 3 and intended to run through Oct. 3.

In an unsigned opinion released Thursday night, the Supreme Court’s conservative majority agreed that the federal agency did not have the power to order such a ban.

“It is indisputable that the public has a strong interest in combating the spread of the COVID-19 Delta variant,” the majority’s eight-page opinion said. “But our system does not permit agencies to act unlawfully even in pursuit of desirable ends. . . . It is up to Congress, not the CDC, to decide whether the public interest merits further action here.”

The court’s three liberal justices dissented and said the majority’s rush to end the moratorium was inappropriate and untimely.

washington post logoWashington Post, Comments on body parts, questions about pregnancy: Court filing alleges harassment in judiciary, Ann E. Marimow, Aug. 27, 2021 (print ed.). In support of a lawsuit filed by a former public defender in North Carolina, more than 20 current and former law clerks and employees of federally funded public defender’s offices and the Administrative Office of the U.S. Courts in Washington offered firsthand accounts of a system that they say still lacks protections and procedures to hold officials accountable.

“I watched for over 20 years and what I saw, every step of the way, was the judiciary circling the wagons any time there was a complaint made by an employee,” said Laura C. Minor, the former equal employment opportunity officer for the court’s administrative office and former secretary of the Judicial Conference, the policymaking body for federal courts that is overseen by Chief Justice John G. Roberts Jr.

“It was impossible for an employee to break through that.”

Read the brief submitted Thursday detailing alleged harassment

In response to the new allegations Thursday, the court’s administrative office said it could not comment on pending litigation. But it defended its current policies and procedures as providing “robust protections for our employees” with options for anonymously reporting concerns.

Aug. 25

ny times logoNew York Times, Supreme Court Allows Revival of Trump-Era ‘Remain in Mexico’ Asylum Policy, Adam Liptak, Aug. 25, 2021 (print ed.). The court’s unsigned order refused to stay a ruling from a federal judge in Texas forbidding the Biden administration from ending the policy.

The Supreme Court on Tuesday refused to block a ruling from a federal judge in Texas requiring the Biden administration to reinstate a Trump-era immigration program that forces asylum seekers arriving at the southwestern border to await approval in Mexico.

The court’s brief unsigned order said that the administration had appeared to act arbitrarily and capriciously in rescinding the program, citing a decision last year refusing to let the Trump administration rescind the Obama-era program protecting the young immigrants known as dreamers.

The court’s three more liberal members — Justices Stephen G. Breyer, Sonia Sotomayor and Elena Kagan — said they would have granted a stay of the trial judge’s ruling. They did not give reasons. The case will now be heard by an appeals court and may return to the Supreme Court.

The challenged program, known commonly as Remain in Mexico and formally as the Migrant Protection Protocols, applies to people who left a third country and traveled through Mexico to reach the U.S. border. After the policy was put in place at the beginning of 2019, tens of thousands of people waited for immigration hearings in unsanitary tent encampments exposed to the elements. There have been widespread reports of sexual assault, kidnapping and torture.

Judge Kacsmaryk suspended his ruling for a week, and the U.S. Court of Appeals for the Fifth Circuit, in New Orleans, refused to give the administration a further stay while it pursued an appeal, prompting an emergency application for a stay in the Supreme Court. On Friday, shortly before the ruling was to go into effect, Justice Samuel A. Alito Jr. issued a short stay to allow the full Supreme Court to consider the matter.

The Supreme Court has had previous encounters with the program. In response to an emergency application from the Trump administration, the court revived the program last year after a federal appeals court blocked it.

President Biden suspended and then ended the program. Texas and Missouri sued, saying they had been injured by the termination by having to provide government services like drivers’ licenses to immigrants allowed into the United States under the program.

On Aug. 13, Judge Matthew J. Kacsmaryk of the U.S. District Court for the Northern District of Texas, in Amarillo, ruled that a federal law required returning noncitizens seeking asylum to Mexico whenever the government lacked the resources to detain them.

That was a novel reading of the law, the acting solicitor general, Brian H. Fletcher, told the justices. That view had “never been accepted by any presidential administration since the statute’s enactment in 1996,” including the Trump administration, he said.

Aug. 24

 

PRESUMED GUILTY
How the Supreme Court Empowered the Police and Subverted Civil Rights
By Erwin Chemerinsky

ny times logoNew York Times, Book Review: A Supreme Court That Has Gone Wrong, Melvin I. Urofsky, Aug. 24, 2021. In the mid-1980s, several scholars — including myself warren burger o— published analyses of the Supreme Court under Chief Justice Warren Burger, right, comparing it with the preceding Earl Warren era, and nearly all of us concluded that there had not been much of a jurisprudential change.

The consensus was summed up in the subtitle of one book, The Counter-Revolution That Wasn’t. After reading Presumed Guilty, Erwin Chemerinsky’s stunning indictment of the Burger court, and of the Rehnquist and Roberts courts that followed, all of us would have to make major revisions if there were ever to be new editions.

As anyone teaching constitutional law or history can tell you, very few cases came before the Supreme Court prior to 1953 involving the Fourth, Fifth and Sixth Amendments to the Constitution, the ones that provide protections for people accused of crimes. In 1833, the Supreme Court had held that the Bill of Rights did not apply to the states, but starting in the 1920s, the court interpreted the due process clause of the 14th Amendment to “incorporate” the protections of the Bill of Rights and apply them to the states as well as the federal government. The criminal clauses were among the last to be adopted, and nearly all the major cases came during the years that Earl Warren, left, presided over the court (1953-69).

earl warrenThe Warren court is clearly the hero of Chemerinsky’s tale, in that for the first and only time in our judicial history a majority of the justices cared about the rights of the accused. The court, among other things, adopted the exclusionary rule banning evidence seized without a proper warrant, required states to provide lawyers for defendants who could not afford one and — perhaps most famously — required police to give the “Miranda” warning to those whom they detained.

These decisions caused an uproar among conservatives, and Richard Nixon promised that if elected he would appoint justices who favored law and order and the police rather than the criminals. Nixon got to name four men to the court — Burger, William Rehnquist, Harry Blackmun and Lewis Powell — who, together with Byron White, a Kennedy appointee who was conservative on everything except racial discrimination, formed the majority that, while it never overturned any of the Warren court’s major decisions, began hollowing them out. With the appointments of Reagan, the Bushes and Trump, that process has continued unabated.

Following the death of George Floyd in May 2020, a great public outcry arose against police brutality, especially involving people of color, and demands that police cease using chokeholds, stopping Black men for no seeming reason and shooting dozens of people of color each year. While well known within the Black community, the extent of this type of behavior shocked many white people, leading them to join protests around the country.

What most people do not know is the extent to which this behavior has been condoned by the judicial system, and here Chemerinsky presents a damning indictment of the Supreme Court. In case after case, the nation’s highest tribunal has found that police actions, even when clearly in violation of constitutional prohibitions, are acceptable. The decisions have not only prevented citizens from getting injunctions against future use of such practices as chokeholds, they have also made it almost impossible for those who have been the victims of police brutality to win civil suits seeking compensation. As Chemerinsky declares, the court’s record “from 1986 through the present and likely for years to come, can easily be summarized: ‘The police almost always win.’”

Although Chemerinsky builds his argument case by case, this is not a dusty accounting where first the court did this, then it did that. Aside from the fact that he writes well, Chemerinsky, the dean of the law school at the University of California, Berkeley, is also an experienced advocate, having appeared before the court on many occasions, and also having served as a consultant to those police forces who either by choice or necessity have tried to overhaul their practices. He bolsters his argument with examples from his own experiences, and his telling of the cases always starts with the people involved. Some have been stopped, beaten up and hauled into jail for no other reason than that they were Black and in the wrong place at the wrong time.

Chemerinsky is doubtful that with the current makeup of the court any meaningful reform of police practices will result from judicial action. But while the justices, who willfully ignore the racial implications of their cases, rule that police forces can get away with almost anything, their decisions are not binding should Congress or state legislatures, or even municipal governments, enact rules governing police misbehavior. A chokehold or a warrantless search may not, in the eyes of conservative justices, violate the Constitution, but they have never ruled that the Constitution requires such practices. Chemerinsky details a number of ways state and local governments can and should reform police procedures without having to go to court.

Whether the furor unleashed by Black Lives Matter will lead to state and city governments reforming their police departments is yet to be seen, but all lawmakers, in fact all concerned citizens, need to read this book. It is an eloquent and damning indictment not only of horrific police practices, but also of the justices who condoned them and continue to do so.

Melvin I. Urofsky is the author of “Dissent and the Supreme Court” (2015) and, most recently, “The Affirmative Action Puzzle” (2020).

Aug. 21

supreme court resized 2021

ny times logoNew York Times, Opinion: As Democrats Renew Voting Rights Push, Offsetting Roberts Court Is Top of Mind, Carl Hulse, Aug. 21, 2021. The House’s voting rights legislation seeks to counter the Supreme Court’s longstanding bid to undermine the Voting Rights Act, our columnist writes.

When Judge John G. Roberts Jr., right, faced the Senate for his Supreme Court confirmation hearing in September 2005, critics sounded the alarm about his john roberts olongstanding skepticism toward the 1965 Voting Rights Act, which many view as crucial to the political gains of Black Americans over the last half century.

“I fear that if Judge Roberts is confirmed to be chief justice of the United States, the Supreme Court would no longer hear the people’s cries for justice,” Representative John Lewis, the civil rights leader from Georgia, said in urging the Senate Judiciary Committee to reject the nomination.

Judge Roberts was easily confirmed by the Republican-controlled Senate despite pleas from Mr. Lewis and other civil rights activists. He went on to oversee the court in rulings that weakened the Voting Right Acts, compromising its decades-long role as a protector of minority access to the ballot box across much of the South. Mr. Lewis died last July, just months before Republican state legislatures enacted an onslaught of voting restrictions after the 2020 elections.

But it is not only those legislatures that Democrats see as their adversaries on election issues.

“We are also up against a Supreme Court that is keen on destroying our nation’s most consequential voting rights law,” Representative Terry A. Sewell, Democrat of Alabama, said this week during a Democratic call celebrating the anniversary of women’s right to vote.

While Mr. Lewis may be gone, House Democrats hope to keep his spirit alive by passing a bill bearing his name next week that they hope will offset what Speaker Nancy Pelosi has called “disastrous” and “shameful” decisions undermining voting rights by the Roberts-led court.

The John Lewis Voting Rights Advancement Act is one element of a two-pronged legislative effort by Democrats to protect minority voting rights. A much broader bill, the For the People Act, would impose an array of requirements on states to expand voting by mail and early voting along with extensive provisions on ethics, campaign finance and redistricting.

The bill named for Mr. Lewis is narrower and focuses on restoring the power of the Voting Rights Act. Both measures face a bleak future in the Senate, where Republicans are nearly unanimous in their opposition to them.

But Democrats, who control the evenly divided chamber with Vice President Kamala Harris’s tiebreaking vote, say they have not given up.

“Republicans refusing to support anything on voting rights is not an excuse for Democrats to do nothing,” said Senator Chuck Schumer, Democrat of New York and the majority leader, promising that Democrats would make the legislation a priority when they return after Labor Day.

Democrats are scaling back the broader bill to unite their party for coming votes. The Lewis measure already has the backing of all 50 senators who caucus with Democratic leadership, including Senator Joe Manchin III of West Virginia, the sole Democrat who did not endorse the For the People Act. He has also enlisted the support of a lone Republican, Senator Lisa Murkowski of Alaska, far from the minimum of 10 Republicans needed to overcome a filibuster.

The Lewis measure is aimed at reinvigorating the voting protections Democrats say were lost in two Supreme Court decisions that “gutted” the landmark underlying law — Shelby County v. Holder and Brnovich v. Democratic National Committee. The first, with a majority opinion written by Chief Justice Roberts in 2013, rendered moot a requirement that state and local governments with a history of imposing discriminatory voting laws receive “preclearance” from the Justice Department or a federal court in Washington before making changes to how people voted. The second, with a majority opinion written by Justice Samuel A. Alito Jr. last month, made it harder for minority voters to prove they were being discriminated against by asserting that the relevant part of the Voting Rights Act could be used only to strike down substantial voting restrictions, not merely inconvenient ones.

Aug. 19

Proof via Substack, Investigation: New Pre-Insurrection Strategy Meetings #1: Reps. Mo Brooks and Jim Jordan, Mark Meadows, Donald Trump, and 50 seth abramson graphicHouse Republicans, Seth Abramson, left, Aug. 19, 2021. In this new entry in a Proof series focused on lightly or non-reported pre-insurrection meetings involving insurrectionist kingpins, we discuss a secretive GOP-caucus call no one seems to be aware of.

Introduction: Most Americans don’t yet realize how much planning Congressional Republicans did prior to January 6 to ensure that that seth abramson proof logoterrible day would be as chaotic as possible.

The lightly and in some cases unreported meetings that top Washington Republicans held between January 2 and January 5—including White House meetings—explain why the Republican Party writ large can under no circumstances cooperate with the new House January 6 Committee. It is now a certainty that if that committee conducts a comprehensive review of top Republicans’ movements in the 120 hours preceding the January 6 attack on the Capitol, it will discover an institutionalized insurrectionist conspiracy the GOP must hide from voters if it is to take back the House in late 2022.

Proof previously began the process of reporting on largely or entirely unreported pre-insurrection strategy sessions with this article, among whose stunning revelations was a national conference call held by Donald Trump with state GOP officials on January 2. That call, which included nearly 300 such officials and was both highly irregular and conducted on a weekend, would have been more than enough covert insurrectionist business for a President of the United States to conduct a single day. But it turns out that it wasn’t the only major pre-insurrection meeting Donald Trump chaired that day.

This article is about a second such meeting.

Read more at the Proof site to see the revelations....

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).

ny times logoNew York Times, Texas Can Ban Common Form of Abortion, Appeals Court Rules, Azi Paybarah, Updated Aug. 19, 2021. At issue is a state law that prohibits a form of second-trimester abortion, which was passed in 2017 but never went into effect due to legal battles.

A federal appeals court on Wednesday upheld a Texas law banning the most common form of second-trimester abortion, ruling that a lower court had erred in finding that the law imposed “an undue burden on a large fraction of women.”

At issue is a Texas law that was passed in 2017 but has not yet been in effect because of legal battles. The law, known as Senate Bill 8, prohibits a dilation-and-evacuation abortion method and requires doctors to use alternative abortion methods, according to Wednesday’s decision by the U.S. Court of Appeals for the Fifth Circuit.

A Federal District Court judge had found that the 2017 law “imposes an undue burden on a large fraction of women” because it “amounted to a ban on all D&E abortions.”

That interpretation is wrong, the appeals court said on Wednesday. Records show that “doctors can safely perform D&Es and comply with SB8 using methods that are already in widespread use,” according to Wednesday’s ruling.

The lower court “committed numerous, reversible legal and factual errors,” according to the decision on Wednesday.

“Accordingly,” it continued, “we VACATE the district court’s permanent injunction.”

The Texas law is one of many abortion restrictions enacted in recent years by Republican-controlled state legislatures emboldened by the Supreme Court’s rightward shift. The Supreme Court is set to hear arguments in the fall over a Mississippi law that bans most abortions after 15 weeks of pregnancy, a direct challenge to the constitutional right to abortion established in 1973 in Roe v. Wade.

Aug. 14

Proof via Substack, Investigation: New Revelations on An Insurrection Eve White House Meeting Suggest It Should Be at the Center of the Congressional January 6 seth abramson graphicInvestigation, Seth Abramson, left, Aug. 13-14, 2021. Trump hosted a meeting at the White House hours before the January 6 insurrection. Congress and media must give it significant scrutiny — as it increasingly looks like pre-insurrection planning.

Introduction: Back in late March, Proof authored an exclusive report revealing that dangerous far-right internet troll Rogan O’Handley attended a secret meeting at the White House just hours before the attack on the United States Capitol.

seth abramson proof logoProof termed the meeting “secret” because—by O’Handley’s own admission—that’s what it was. Indeed, when he spoke to a large insurrectionist mob at Freedom Plaza immediately after leaving the event at the White House, he told them that he “can’t” reveal even a single attendee of the Insurrection Eve meetup he’d just attended at the People’s House.

That O’Handley was admitted to the White House with a number of unknown parties hours before the worst attack on our nation’s capital since 1814 was deemed by Proof especially harrowing because of what O’Handley, either directed or merely inspired by his White House meeting, told the mob at Freedom Plaza.

As Proof noted in publishing its report on the secret White House meeting, here, with emphasis supplied, is some of what O’Handley said fresh from his visit to the White House (at a time he was sharing a stage—literally—with domestic terrorist Ali Alexander):

It may be forty degrees out here, but it sure feels like 1776. I was just at the White House. I can’t tell you who I was meeting with, but they’re optimistic. They think something good is going to happen tomorrow. All I gotta say is, “It damn well better happen,” because I don’t want to see these patriots more pissed off than they already are—in DC, right next to Congress….If you want to see what patriots do when they get in an uprising, then vote to certify the fraud tomorrow. But you better make the right decision tomorrow, or you're gonna have a whole lot of pissed off patriots in DC.

Here’s the video of O’Handley’s inciting speech, which includes the shouted message to members of the U.S. Congress, “YOU SHOULD BE AFRAID OF US! WE ARE NOT GOING ANYWHERE! NO MATTER WHAT HAPPENS [TOMORROW]!” Right Wing Watch @RightWingWatch "If you want to see what patriots do when they get in an uprising, then vote to certify the fraud tomorrow."

Rogan O’Handley, aka DC Draino, fired up crowd the night before the insurrection. He said he'd come from the White House where they expected "something good" the next day.

Read more at the Proof site to see what's new....

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).

Aug. 12

amy coney barrett cnbc

washington post logoWashington Post, Supreme Court won’t block Indiana University vaccine mandate as Justice Barrett rejects student plea, Robert Barnes, Aug. 12, 2021. Justice Amy Coney Barrett on Thursday rejected a plea from a group of Indiana University students to stop the university’s requirement that all students be vaccinated against the coronavirus.

Barrett, above, who received the request because she is the Supreme Court justice tasked with emergency petitions from that region of the country, did not give a reason. It appears she made the decision on her own, as she did not mention referring the matter to the other justices.

indiana universityIt was the first case about vaccination requirements to reach the Supreme Court. Both a federal district judge and a unanimous panel of the U.S. Court of Appeals for the 7th Circuit had previously rejected the request that the university’s requirement be put on hold while the issue was further litigated.

The university in May required all faculty, students and staff to be vaccinated unless they applied and qualified for an exemption, such as a religious objection or a medical reason for not receiving the vaccine.

Aug. 2

U.S. Insurrection Probes, Commentaries

Trump ally Steve Bannon, left, with his billionaire partner Guo Wengui, a fugitive from China.

Trump ally Steve Bannon, left, indicted last year in a massive fraud scheme but pardoned by Trump, with his billionaire partner Guo Wengui, a fugitive from China.

Wayne Madsen Report, Investigative Commentary: Foreign cash bought the White House for Trump, Wayne Madsen (left, author of 20 books and former Navy intelligence officer), Aug. 2, 2021. Projection sums up the entire wayne madsen may 29 2015 cropped Smallfour years of Donald Trump's chaotic administration in that while he and his cohorts were trying to convince the world that Joe Biden was tied financially in some way to Ukraine and China, his administration was bought and wayne madesen report logopaid for by foreign interests.

In addition to cash outlays to Team Trump, Steve Bannon's international bloc of fascist parties and individuals contributed in kind with social media gaslighting and other propaganda campaigns designed to perpetuate unfounded rumor on Biden, Covid-19, and other subjects.

Repeated attempts by Congress to close campaign finance loopholes that permit foreign money to flow into the campaign coffers of American political candidates have met with failure. For the most part, it has been Trump loyalists in the U.S. Senate, many there due to foreign money helping to pay for their seats, that have deep-sixed repeated bills originating in both the House and the Senate designed to stop foreign money infusion into U.S. campaigns. 

Trump ally and Trump ally and "Stop the Steal" promoter Roger Stone, with (from left) allies Jacob Engels, Christina Engelstad and Joseph Greco last January (Photo via Proof).

Proof via Substack, Investigation: Trump Adviser Roger Stone Was Closely Attended By a Leading Proud Boy Just Before a Proud Boy Arson, a Proud Boy Riot, and the Proud Boys' Capitol Attack, Seth seth abramson graphicAbramson, left, Aug. 2, 2021. Images confirm that Stone had a level of access to January 6 insurrectionists well beyond what has been reported by major media, and during a period the longtime Trump adviser was in touch with Trump.

seth abramson proof logoIntroduction: As Proof has reported, longtime Donald Trump friend and adviser Roger Stone has consistently lied about every aspect of his trip to Washington in early January 2021, even as he refuses to reveal details about what he discussed with Trump at Mar-a-Lago when the two met there on December 28, 2020 — just nine days before the insurrection. Of late, Stone has been particularly focused on establishing who was or was not in his suite at the Willard Hotel on Insurrection Day. Perhaps to counterbalance the fact that he was rooming with convicted felon Kristin M. Davis, Stone has emphasized the fact that also in his suite at the Willard were two pastors, Randy Coggins II and Mark Burns.

Less clear is why Stone was walking the halls of the hotel on Insurrection Day with a binder of information, as Proof has reported, or why Davis now says Stone was hanging out with “literally fifty” insurrectionists at the Willard on January 6. Davis, who holds herself out as Stone’s PR flack, wrote an apologia for Stone in July that was soon deleted from the fake-news site that published it, a seeming acknowledgment that, as FBI investigators appear to be closing in on Stone as a potential insurrection kingpin, the less he or his team say about January 6 the better.

And yet Stone himself has already lied about that day so many times that anything he tells the FBI now will directly contradict at least two or three of prior public statements.

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, Opinion: Biden cannot sit back and let our democracy sink. He’s now showing us he gets that, E.J. Dionne Jr., right, Aug. 2, 2021 (print ed.). ej dionne w open neckPresident Biden’s infrastructure bill defied predictions of its impending death again and again and again. Voting rights and political reform have been the subject of early obituaries even more dire. To protect our democracy, Biden has no choice but to prove these wrong, too.

The broad bipartisan vote to move forward on a physical infrastructure bill really was a big deal. It marked a decisive break from the dominance of a form of conservative politics that cast even the most basic forms of government action as wasteful. In tandem with the larger Democrats-only bill, it could herald a new era of social reform and public investment.

But if Biden has been right in saying that our democracy’s health depends on the political system demonstrating its capacity to undertake ambitious projects, Joe Biden portrait 2our democracy’s success also requires — well, that it remain a democracy.

That’s in question as Republican states (18 at last count) enact laws to limit access to the ballot and, in many cases, corrupt the election process itself by undercutting independent, nonpartisan ballot counting.

Democratic-Republican Campaign logosThus the importance of Friday’s White House meeting, in which Biden joined House Speaker Nancy Pelosi (D-Calif.) and Senate Majority Leader Charles E. Schumer (D-N.Y.) to craft a strategy to enact political reform and voting rights bills.

The meeting reflected a growing awareness inside the Biden camp that it cannot hang back and let democracy legislation founder while offering false hope that political organizing can overcome voter suppression and extreme gerrymandering.

As Rep. Mondaire Jones (D-N.Y.) told me, after Biden’s “intimate engagement” in negotiating the bipartisan infrastructure bill with the Senate, the administration cannot now claim the filibuster is purely that chamber’s business.
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Reflecting a view widely held by civil rights leaders, Jones argued that Biden must match the energy he devoted to infrastructure with an equally spirited push on voting rights, including — if needed — a willingness to back a change in Senate rules.

A White House statement after the meeting did not mention the filibuster. But it declared that “passing legislation to protect against voter suppression, electoral subversion, dark money and partisan gerrymandering” was a “moral imperative.”

Jones described Pelosi as “enormously strong” on the issue because she “gets that everything is at stake.” That was the message the speaker sent after the White House encounter: “This is of the highest priority for us.”

Schumer, too, has gone on offense, hosting efforts by Democratic Sens. Amy Klobuchar (Minn.), Raphael G. Warnock (Ga.), Joe Manchin III (W.Va.), Jeff Merkley (Ore.) and others to write a new version of the political reform bill rooted in many of Manchin’s suggestions for easier ballot access. The bill will also include new provisions to try to stop partisan bodies from pushing aside local election officials and nullifying election results.

 

July

July 23

ny times logoNew York Times, The Supreme Court Needs to Be Cut Down to Size, Jamelle Bouie, right, July 23, 2021. On Tuesday, the Presidential Commission on the jamelle bouieSupreme Court of the United States sat for its third public meeting. Formed in April by executive order, the 36-member commission exists to hear arguments for and against Supreme Court reform and to analyze and appraise the merits of specific proposals.

President Biden did not run on court reform and rejected “court packing” during the 2020 campaign. But after Donald Trump and Mitch McConnell pushed Amy Coney Barrett through the Senate in a harried bid to replace Ruth Bader Ginsburg before the presidential election, he could not resist calls from within the Democratic Party to do something.

The commission is Biden’s something, and it isn’t much to look at. Not only is it not meant to make recommendations or suggest a course of action, but its members come from the upper echelon of the legal elite — exactly the people most comfortable with the institutional status quo on the Supreme Court.

But this doesn’t mean the commission is worthless. It may not offer needed reforms, but in its three meetings so far it has already served as a valuable platform for scholars with a cleareyed view of the court and a powerful critique of its current role within the nation’s constitutional order. If nothing else, the commission has helped elevate important ideas and perspectives the broader public needs to hear. It is interesting, illuminating and worthy of your attention.

Media, Whistleblower News

daniel ellsberg umass

Society of Professional Journalists (SPJ), Whistleblower Summit and Film Festival, virtual events, begins with screenings starting Friday, July 23, and panel discussions starting Sunday, July 25; DC Pro president joins opening plenary July 26, Staff Report, July 23, 2021. SPJ DC Pro Chapter is a co-sponsor of the Whistleblower Summit and Film Festival this year, with a panel presentation on July 27. A chapter board member and a chapter Distinguished Service Award honoree will be participating on another panel July 30.

Here is a schedule for panels and screenings (subject to updates). All sessions will be held via Zoom; the film screenings will be streamed online.

Keynote speaker is whistleblower Daniel Ellsberg (shown above in a University of Massachusetts photo), at noon on July 30, in recognition of his role in releasing documents that led to the publication of excerpts in The New York Times of what came to be called the Pentagon Papers, 50 years ago this summer.

DC Pro Chapter President Randy Showstack will represent the chapter during the opening plenary on Monday, July 26, at 10 a.m., joining other sponsors or collaborators. They include:

Panelists:

  • Marcel Reid, Pacifica Foundation
  • Michael McCray, ACORN 8
  • Andrew Kreig (also a DC Pro Chapter member), Justice Integrity Project
  • Randy Showstack, Society of Professional Journalists Washington, D.C., Pro Chapter
  • Liz Hemperwitz, Project on Government Oversight
  • Tom Devine, Government Accountability Project
  • Siri Nelson, National Whistleblower Center

Indefatigable chapter Recording Secretary and FOI advocate Kathryn Foxhall will moderate the 10 a.m. Tuesday, July 27 panel, "The Perils of PIO," which is described thus: "Over 20-30 years, it’s become a cultural norm for various entities, public and private, to prohibit staff from communicating with reporters without oversight by authorities, often through public information officers (PIO). The basic part of this is quite fearsome: prohibition against any contact without notifying authorities. However, the rules also create a chokepoint severely limiting the number of contacts. They are also used to deliberately block unwanted contacts and constrain what can be said.

"This hampers whistleblowing by massively reducing reporters’ ability to get to know and be educated by staff; have staff come to trust them; and have confidential conversations. The Society of Professional Journalists has said it believes secrecy caused by these controls led to significantly higher COVID-19 death toll. An analysis by First Amendment attorney Frank LoMonte says the restrictions are unconstitutional and many courts have said so."

Panelists:

  • Kathyrn Foxhall (Moderator) The SPJDC.org website has articles about "Censorship by PIO" and resources.
  • Frank LoMonte, head of the Brechner Center for Freedom of Information at the University of Florida
  • Haisten Willis, freelance journalist and chair of national SPJ's Freedom of Information Committee

Ahead of the keynote speech by Ellsberg -- at 10 a.m. on Friday, July 30 -- DC Pro Chapter board member and attorney Kenneth Jost will join chapter DSA awardee Gene Policinski, chief operating officer of the Freedom Forum Institute and the institute's First Amendment Center, on a panel looking at the "Ramifications of the Pentagon Papers Today." The panel description says that the July 3, 1971, publication in The New York Times of what is now known as the Pentagon Papers prompted a series of events that ultimately resulted in the resignation of President Richard Nixon and changed the landscape for American journalism due to a landmark decision on freedom of the press (New York Times Co. v. United States). This informative panel will examine the long-term impact of the publishing of the Pentagon Papers on free speech, whistleblowing, investigative journalism and American society overall.

Panelists:

  • Gene Policinski, JD (Moderator)
  • Mark Zaid, JD
  • Kenneth Jost, JD

Access to streaming of panels and the films is here. More information on the Summit can be found here. Specific questions may be directed to This email address is being protected from spambots. You need JavaScript enabled to view it. or by calling (202) 370-6635. July 30 also is National Whistleblower Appreciation Day. The National Whistleblower Center invites you to register for its virtual all-day event marking the occasion.

July 18 

ny times logoNew York Times, Opinion: Merrick Garland Needs to Show He Knows What Jan. 6 Was Really About, Donald Ayer, Danielle Brian and Norman Eisen, July 18, 2021. Mr. Ayer was a deputy attorney general in the George H.W. Bush administration. Ms. Brian is the executive director of the Project On Government Oversight. Mr. Eisen served as special counsel to the House Judiciary Committee during the first Trump impeachment.

mo brooks oWhen Mo Brooks, left, took his oath of office as a U.S. representative, he swore to support and defend the Constitution. His official duties certainly don’t include what Mr. Brooks is accused of doing in a civil lawsuit pending in Washington federal court: helping to incite a mob to storm the Capitol on Jan. 6.

merrick garlandRepresentative Eric Swalwell, a California Democrat, sued Mr. Brooks, an Alabama Republican, and others for damages suffered as a result of their roles in the Capitol riot. Mr. Brooks has asked Attorney General Merrick Garland to certify that his actions on Jan. 6 were those of a government employee acting within the scope of his employment. The Justice Department must say if it will defend Mr. Brooks by July 27.

If the attorney general, right, were to certify and the court agreed, Mr. Brooks would be dismissed from the lawsuit under a federal statute. The United States would be substituted as a defendant instead.

Mr. Garland’s choice is important in its own right, but it also carries ramifications for cases targeting possible official wrongdoing in the Trump era, including by the former president himself. Mr. Garland should emphatically reject Mr. Brooks’s request to make this certification, because our nation deserves a full accounting for those involved in the storming of the Capitol and any other assaults on our democracy.

Justice Department log circularThe case arises from Mr. Brooks’s appearance at the “Save America” rally in Washington on Jan. 6. All Americans are entitled to petition their government under the Constitution.But in our view, Mr. Brooks’s instructions went beyond these protections. He urged the assembled crowd to “fight for America” and “stop” at the Capitol, where the electoral transition would take place.

“Today the curtain will be pulled back and American patriots will learn by their votes which Republican senators and congressmen have the courage to fight for America,” Mr. Brooks said. “Today Republican senators and congressmen will either vote to turn America into a godless, amoral, dictatorial, oppressed and socialist nation on the decline or they will join us and they will fight and vote against voter fraud and election theft and vote for keeping America great.” He added, “Today is the day American patriots start taking down names and kicking ass.” (In response to the suit, Mr. Brooks said he was talking in his speech about the 2022 and 2024 elections.)

We all know what happened next.

Determining when arguably wrongful conduct by a federal employee nonetheless occurred within the scope of his or her employment duties often involves a difficult exercise of judgment. The issue is not whether the employee committed a wrongful act — bad things can happen on the job. At the same time, not everything an employee does is within the scope of his job.

The Constitution and laws of the United States are not, as Justice Robert Jackson once warned, a suicide pact. Certification that Mr. Brooks acted within the scope of his job would leave the United States government defending the right of its elected representatives to foment insurrection against itself.

The decision before the Justice Department could also have an impact on other cases, including those against Mr. Trump. He, too, is a defendant in Representative Swalwell’s suit over his incitement at the same rally. If Mr. Brooks is immunized, how long before Mr. Trump seeks the same? There is also the Georgia criminal investigation of Mr. Trump’s efforts to have state officials “find 11,780 votes.” He surely would point to any precedent Mr. Garland set here to argue that that was official, too. Who knows what other yet-to-be revealed conduct would be swept within this new safe harbor for wrongdoing?

Our future depends on our resolve in adhering to our basic democratic values — among them, that truth is a key to the functioning of our electoral system. And that demands that Attorney General Garland unequivocally reject any notion that a congressman is doing his job when he foments a riot based on lies in order to sabotage a legitimate national electoral process.

washington post logoWashington Post, Opinion: How the Supreme Court dominates our democracy, Nikolas Bowie (an assistant professor of law at Harvard Law School, where he teaches federal and state constitutional law and local government law). July 18, 2021 (print ed.). Judicial review gives any five justices power over the whole government. Why?

Because the Supreme Court undermined or ignored Congress’s attempts to enforce the Constitution, the racial caste system that we know as Jim Crow emerged like an invasive species. With the court’s approval, White people in the South terrorized Black voters, disenfranchised them and enacted state laws to codify their place at the bottom of a racial hierarchy.

Today, as American democracy enters a midlife crisis, the Supreme Court has often been heralded as democracy’s guardian. Decisions dating from 1954’s Brown v. Board of Education are seen by many as essential responses to the tyranny of the majority.

Yet it appears that the court has reverted to its older ways. In 2013, a justice sneered at Congress’s nearly unanimous reauthorization of the Voting Rights Act, calling it the “perpetuation of a racial entitlement.” He was soon joined by four of his colleagues in the Shelby County decision, which treated a central provision of the Voting Rights Act as beyond Congress’s power to enact “appropriate” legislation. And in its Brnovich decision this month, the court stuck a second dagger into the act, calling it too “radical” to be enforced as written.

washington post logoWashington Post, Opinion: Major Supreme Court reform is unlikely. But these changes would be a good start, Daniel Epps (Treiman professor of law at Washington University in St. Louis), July 18, 2021 (print ed.). New ethics rules might prevent conflicts of interest — and it’s time to televise arguments.

Expectations that Democrats will be able to substantially reform the Supreme Court — perhaps by adding new members — have nosedived recently. Even before President Biden’s blue-ribbon Supreme Court commission met for the first time, progressives were lamenting that its generally moderate and bipartisan members were unlikely to endorse bold changes to the court’s structure. And even if they did, major reforms appear politically impossible with Democrats’ extraordinarily narrow advantage in the Senate.

So court-packing is almost certainly off the table, as most likely are term limits for justices. But that doesn’t mean Supreme Court reform is dead. Narrower changes could find bipartisan support on Biden’s commission, in Congress and perhaps even among the justices themselves. These reforms certainly wouldn’t solve the biggest problems critics see with today’s court. But they would still be worth implementing to help fix some smaller ones.

What changes might be viable? Perhaps the most likely — as the Vanderbilt law professor Ganesh Sitaraman and I argue in a recent Harvard Law Review Forum essay — is ethics reform. Although federal judges are bound by a code of ethics, no rules govern Supreme Court justices.

A related issue is transparency. The court is a famously secretive institution that has resisted measures to make its work more visible to the public. Most notably, justices have refused to televise arguments. But the justices may not be able to hold out much longer.

washington post logoWashington Post, Opinion: In Texas, vigilantism replaces the rule of law, Ruth Marcus, right, July 18, 2021 (print ed.). Leave it to Texas to ruth marcus twitter Customcome up with a way to violate women’s constitutional rights with a modern twist on vigilante justice.

At least eight states have passed laws that purport to prohibit abortions early in pregnancy — so-called fetal heartbeat laws that would bar abortion as early as six weeks, before many women even know they are pregnant.

“Purport to” is the operative phrase here, however. Because these laws are clearly unconstitutional — at least until the Supreme Court says differently — federal judges have stepped in to block them from taking effect.

texas mapNow Texas has come up with a mechanism to end-run the federal courts — or so it believes. The state’s new law bars abortion once there is a “detectable” fetal heartbeat. But it prohibits state government officials from enforcing the ban. Instead, it outsources that job to private individuals — antiabortion vigilantes — who are deputized to go to state court to sue anyone who performs a supposedly illegal abortion or “aids or abets” such a procedure.

Their reward? A bounty of at least $10,000, plus legal costs. Imagine what that might mean in Texas, the state that brought you Roe v. Wade.

This is harassment waiting to happen. Anyone opposed to abortion could sue anyone — the relatives of a woman seeking an abortion, a counselor who phones a clinic to make an appointment, any doctor or nurse involved in the procedure — anywhere in the state at any time. If the law takes effect as scheduled on Sept. 1, the ensuing risk and chaos would shut down abortion providers in the state. Which is, of course, the goal.

July 15

ny times logoNew York Times, Opinion: On Voting Rights, Justice Alito Is Stuck in the 1980s, Linda Greenhouse (shown at right on the cover of her memoir), July 15, 2021. The Voting Rights Act decision that concluded the Supreme Court term this month linda greenhouse cover just a journalistoffered two mutually exclusive visions of what the right to vote means today.

Justice Samuel Alito’s opinion for the six-justice majority insisted that the law should pay little mind to the occasional “inconvenience” of casting a ballot. Justice Elena Kagan’s dissenting opinion, joined by two other justices, accused the majority of taking the “grand and obvious” right to an “equal opportunity to vote” and reducing it to nothing more than “equality-lite.”

The competing visions in the Brnovich v. Democratic National Committee decision reflected profoundly different understandings of what law needs to do to keep the basic mechanics of samuel alito odemocracy functioning. In that, it offered an almost perfect mirror of the partisan divide over the seemingly simple concept of the right to vote.

All nine justices were working from the same text, Section 2 of the Voting Rights Act of 1965, which prohibits any voting practice or procedure “which results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color” and instructs courts to consider “the totality of circumstances” in deciding whether a challenged practice has such an effect.

Even so, Justice Alito, left, called Justice Kagan’s interpretation of that language “radical”; Justice Kagan called his “tragic.” What could lead the two wings of the court to diverge so completely in interpreting that language?

The case concerned two Arizona voting regulations, which the court upheld. But that wasn’t what the dispute among the justices was really about or why the decision matters so much. The basic question was the meaning of the Voting Rights Act itself: what purpose it serves, what interests it protects.  

brett kavanaugh flag

Palmer Report, Opinion: What did Donald Trump know about Brett Kavanaugh? Ron Leshnower, July 15, 2021. In Michael Wolff’s new book, Landslide: The Final Days of the Trump Presidency, Donald Trump rails on all three of hisSupreme Court picks. That’s not too surprising, given that they didn’t magically overturn the election and transform Biden’s inauguration into a Trump coronation. However, Trump’s criticism of Brett Kavanaugh is revealing and could spell legal trouble for Kavanaugh nearly three years into his undeserved tenure.

bill palmer report logo header“Where would he be without me? I saved his life,” Trump ranted, according to an excerpt obtained by Axios. “He wouldn’t even be in a law firm. Who would have had him? Nobody. Totally disgraced. Only I saved him.” Trump isn’t just venting here. Trump is clearly suggesting what many people have long thought—that there’s much more to the Kavanaugh story that was never properly investigated.

Former federal prosecutor Glenn Kirschner believes that Trump’s statement constitutes new evidence for a formal Justice Department investigation into Kavanaugh, shown above. “What in the world did Donald Trump know about Brett Kavanaugh?” Kirschner wondered aloud in a recent video. “What did he learn during the nomination process that made it clear to Donald Trump that Kavanaugh was disgraced?”

Indeed, Trump’s statement was not some random vengeful utterance. Given the abbreviated sexual assault investigations, Kavanaugh’s mysteriously vanishing debt, and his seemingly perjurious testimony during his Senate confirmation hearing, Trump’s statement fits into a larger context that must no longer be ignored.

The Justice Department has its hands full now, thanks to a historically corrupt former guy, but investigating Kavanaugh shouldn’t require enormous resources. As Kirschner pointed out, the FBI can easily interview Kavanaugh’s friends (“boys”) to corroborate Kavanaugh’s explanation of his evaporating debt: “Did you happen to give Brett Kavanaugh $200,000 in cash for baseball tickets? No? Hmm! Well, that’s interesting.”

It’s not too late to launch a formal investigation into Kavanaugh. Also, the fact there is a new administration is legally irrelevant because, as Kirschner pointed out, “there is no grandfather clause.” Kirschner then summed it up perfectly. “All of that has to be investigated, not as political payback, not as retribution, not as election revenge, but because it’s the right thing to do… because justice matters.”

July 9

washington post logoWashington Post, Constitutional lawyers call Trump’s First Amendment defense against Jan. 6 lawsuits ‘spurious,’ Spencer S. Hsu, July 9, 2021. Committee investigating Jan. 6 Capitol attack will hold first hearing later this month. ormer president Donald Trump’s claim that the First Amendment shields his conduct leading up to the Jan. 6 Capitol riot is legally “spurious” and should be rejected as a federal court considers lawsuits that allege he incited the violence, four prominent First Amendment lawyers and scholars argued Thursday.

Targeting a key defense raised by lawyers for Trump and co-defendants including Rudolph W. Giuliani and Rep. Mo Brooks (R-Ala.), the legal experts said that courts have long recognized that speech central to a crime — such as the political intimidation of voters, lawmakers and government officials — is barred and not protected by the Constitution.

In a 23-page proposed friend-of-the-court brief filed Thursday in a case brought by members of Congress and Capitol police, the legal scholars argued that courts must strike a balance between protecting freedom of political speech and preventing political intimidation.

“Granting constitutional protection to the statutorily proscribed acts of political intimidation in the guise of ‘speech’ would render the government incapable of carrying out its functions, including its core democratic function of protecting the ability of all eligible citizens to engage freely and without coercion in the democratic process, whether by voting or by supporting and advocating for candidates,” the scholars wrote.

The four signers were First Amendment lawyer Floyd Abrams, who has fought several precedent-making cases in court, Berkeley law school dean Erwin Chemerinsky, former Harvard Law School dean Martha Minow and noted constitutional scholar Laurence Tribe.

“The movants believe that it is important not only to reject plaintiffs’ spurious and thinly developed First Amendment defenses, but to do so on grounds that preserve the effectiveness of political-intimidation statutes generally,” they added.

Trump attorney Jesse Binnall has asked U.S. District Judge Amit P. Mehta of Washington to toss out cases filed by Reps. Bennie G. Thompson (D-Miss.), Eric Swalwell (D-Calif.) and injured U.S. Capitol Police officers seeking damages, citing the president’s “absolute immunity” from the civil suit on separation-of-powers and free speech grounds.
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Binnall wrote that Trump’s claims of election fraud and theft were rooted in opposing Congress’s vote on Jan. 6 to confirm the results of the 2020 election.

The plaintiffs assert that Trump’s baseless and incendiary statements were part of a conspiracy with co-defendants such as extremist members of groups such as the Oath Keepers and Proud Boys. They are accused of egging on the riot along with other speakers — including Brooks, Giuliani and Donald Trump Jr. — at a fiery rally that morning at the White House Ellipse.

At the rally, the then-president urged attendees to “fight like hell” and march to the Capitol, “whipping them into a frenzy and turning them into a violent mob that participated in the attack,” Swalwell claimed.

The Capitol breach forced the evacuation of lawmakers, contributed to five deaths and led to assaults on nearly 140 police officers, authorities say.

Swalwell, a former House impeachment manager, argued the Trump speakers “all conspired with … each other, and others to subvert the will of the people in the 2020 election.” Swalwell’s suit said the defendants violated the Reconstruction-era Ku Klux Klan Act, which was passed to prohibit violent interference in Congress’s constitutional duties such as the Klan’s reign of terror to disenfranchise Black citizens and White supporters after the Civil War.

Now part of a civil rights statute known as “Section 1985,” the law authorizes lawsuits against people who conspire to interfere with government, obstruct justice or deprive others of equal protection under the law, such as by threatening voters, candidates, or the courts.

Rep. Eric Swalwell sues Trump over Jan. 6 riot, alleging he poses risk of ‘inciting future political violence’

The First Amendment scholars noted in their brief that courts historically have defended inflammatory political speech absent evidence that it incited imminent lawless action, or that a speaker seriously intended a “true threat” of violence — lines they argue Trump’s statements almost certainly crossed.

However, relying on such grounds could result in weakening First Amendment protections, while simultaneously “devastating” enforcement if courts interpret political intimidation laws as requiring proof of perpetrators’ intent, they wrote. Rather than apply those First Amendment tests with potentially harmful and unintended consequences to democracy, it would be better to shore up political-intimidation laws, they said, since many modern forms of intimidation do not involve threats of imminent violence but coercion of voters and elections officials.

“Although the January 6 insurrection may be the most spectacular example of incitement and ‘true threat’ in American history, modern political intimidation often takes subtler forms …,” the constitutional scholars wrote, such as “aggressive poll-watching, anonymous threats of harm, frivolous and excessive voter registration challenges, and coercion by employers,” as well as baseless threats of legal harm.

Carving out a “categorical” exception from the First Amendment for speech integral to political intimidation, they concluded, “also will preserve the efficacy of the political-intimidation statutes on which the health of our democracy depends.”

Before Trump’s impeachment acquittal in February, three of the four who wrote the amicus brief signed on to letters joined by more than 100 constitutional scholars earlier this year agreeing that the First Amendment did not prevent the Senate from convicting and disqualifying him from holding future office.

Read Rep. Swalwell’s opposition to Trump, Giuliani motions to dismiss here

In a separate filing, lawyers for Swalwell raised similar arguments, warning that Trump’s legal interpretation would weaken civil rights laws “beyond recognition,” adding that the former president was not “petitioning the government for redress,” but “unleash[ing] a violent mob at the Capitol to prevent Congress from carrying out its constitutional duties.”

Trump and others conspired “through a months-long campaign of lies and deceit that culminated in violence-laced calls to save a country they claimed was being stolen,” knowing the propensity of some listeners to engage in violence, that Trump approved of such violence and had pressured election officials and Vice President Mike Pence to overturn the results, attorneys wrote.

They concluded, “And when hordes of Trump’s supporters did just that, Donald Trump reportedly was happy with the result.”

July 2

supreme court resized 2021

ny times logoNew York Times, 2 Justices Say Landmark Libel Decision Should Be Revisited, Adam Liptak, right, July 2, 2021. Justice Neil M. Gorsuch added his voice to that of Justice Clarence Thomas in questioning adam liptakthe longstanding standard for public officials set in New York Times v. Sullivan.

Two justices on Friday called for the Supreme Court to reconsider New York Times v. Sullivan, the landmark 1964 ruling interpreting the First Amendment to make it hard for public officials to prevail in libel suits.

One of them, Justice Clarence Thomas, repeated views he had expressed in a 2019 opinion. The other, Justice Neil M. Gorsuch, offered fresh support for the view that the Sullivan decision and rulings extending it warranted a reassessment.

They made their comments in dissents from the court’s decision not to take up a libel case brought by the son of a former prime minister of Albania.

Both justices said the modern news media landscape played a role in their thinking about the actual malice doctrine announced in the Sullivan case. That doctrine required a public official suing for libel to prove that the offending statements were made with the knowledge they were false or with serious subjective doubt about their truth — a stricter standard than is applied to cases brought by ordinary people. The doctrine was expanded in later court rulings to cover public figures, not just public officials.

Justice Thomas denounced the explosion of conspiracy theories and other disinformation. He cited a news report on “the shooting at a pizza shop rumored to be ‘the home of a Satanic child sex abuse ring involving top Democrats such as Hillary Clinton’” and a New York Times article on “how online posts falsely labeling someone as ‘a thief, a fraudster and a pedophile’ can spark the need to set up a home-security system.”

“The proliferation of falsehoods is, and always has been, a serious matter,” Justice Thomas wrote. “Instead of continuing to insulate those who perpetrate lies from traditional remedies like libel suits, we should give them only the protection the First Amendment requires.”

Justice Gorsuch wrote that much had changed since 1964, suggesting that the actual malice doctrine might have made more sense when there were fewer and more reliable sources of news, dominated by outlets “employing legions of investigative reporters, editors and fact checkers.”

“Large numbers of newspapers and periodicals have failed,” he wrote. “Network news has lost most of its viewers. With their fall has come the rise of 24-hour cable news and online media platforms that ‘monetize anything that garners clicks.’

“What started in 1964 with a decision to tolerate the occasional falsehood to ensure robust reporting by a comparative handful of print and broadcast outlets,” he wrote, “has evolved into an ironclad subsidy for the publication of falsehoods by means and on a scale previously unimaginable.”

The two justices made their comments in dissenting from the court’s denial of review in Berisha v. Lawson, No. 20-1063, a libel case brought by Shkelzen Berisha, the son of Albania’s former prime minister. He sued the author and publisher of “Arms and the Dudes: How Three Stoners From Miami Beach Became the Most Unlikely Gunrunners in History,” a 2015 book that examined weapons procurement and was the basis of the movie “War Dogs.”

Mr. Berisha said the book, written by Guy Lawson and published by Simon & Schuster, falsely linked him to an illicit arms deal.

The U.S. Court of Appeals for the 11th Circuit, in Atlanta, relying on decisions extending the Sullivan case from public officials to public figures, ruled that Mr. Berisha was a public figure.

 washington post logoWashington Post, Opinion: Don’t be fooled: This is not a moderate Supreme Court, Leah Litman and Melissa Murray, July 2, 2021. Leah Litman is an assistant professor of law at the University of Michigan Law School. Melissa Murray is a professor of law at the New York University School of Law. They co-host the “Strict Scrutiny” podcast.

This Supreme Court term was significant mostly because of what the court did not do: The newly constituted 6-3 conservative supermajority did not use every case to openly and dramatically move the law rightward. Rather, in several important cases — including those involving the fate of the Affordable Care Act and the tension between religious liberty and gay rights — the court managed to resolve matters on seemingly narrow grounds and with broad majorities that transcended ideological differences.

But to call this term a model of judicial restraint — or even nonpartisanship — would be misleading. This is not a moderate or apolitical court. It is a reliably conservative court that, on occasion, chooses to act incrementally.Advertisement

Characterizing this term as moderate would also overlook the profound impact of the court’s final two decisions, a pair of 6-to-3 rulings — one that hobbled what remains of the Voting Rights Act and another that lays a foundation for a seismic shift in campaign finance rules.

In some cases where there was cross-ideological agreement, the court achieved that result by deciding very little. In its 8-to-1 ruling on the case of the cheerleader disciplined for vulgar speech, the court declined to impose a broad rule letting schools regulate students’ off-campus speech in all circumstances. But meaningfully, the court did not say off-campus speech was never subject to oversight by school authorities. As its reasoning suggests, cross-ideological agreement is possible, as long as you agree to not say very much.

Technical legal doctrines also gave the court a way to appear less ideological. In the Affordable Care Act case, the court, voting 7 to 2, turned aside a third challenge to the law on the narrow grounds that the states and private parties challenging the law didn’t have standing to sue because they couldn’t show they were injured by the unenforceable requirement to obtain insurance.

July 1 

ny times logoNew York Times, Supreme Court Upholds Arizona Voting Restrictions, Adam Liptak, July 1, 2021. The court’s 6-3 ruling, a test of what remains of the Voting Rights Act, signals that challenges to state laws making it harder to vote may not be successful.

The Supreme Court on Thursday upheld voting restrictions in Arizona and signaled that challenges to new state laws making it harder to vote would face a hostile reception from a majority of the justices.

The vote was 6 to 3, with the court’s three liberal members in dissent.

The decision was the court’s first consideration of how a crucial part of the Voting Rights Act of 1965 applies to voting restrictions that have a disproportionate impact on members of minority groups, and it was issued as disputes over voting rights have taken center stage in American politics.

As Republican-controlled state legislatures increasingly seek to impose restrictive new voting rules, Democrats and civil rights groups have turned to the courts to argue that Republicans are trying to suppress the vote, thwart the will of the majority and deny equal access to voters of color. The Arizona decision suggested that the Supreme Court would not be inclined to overturn many of the state measures.

Justice Samuel A. Alito Jr., writing for the majority, said courts should strike down voting restrictions only when they impose substantial burdens on minority voters that effectively block their ability to vote.

“Where a state provides multiple ways to vote,” he wrote, “any burden imposed on voters who choose one of the available options cannot be evaluated without also taking into account the other available means.”

washington post logoWashington Post, The Roberts court systematically dismantles the Voting Rights Act, Editorial Board, July 1, 2021. At times, Chief Justice John G. Roberts Jr., below right, has labored to maintain the Supreme Court’s legitimacy against the gale-force pressures of partisan acrimony and social division. When it comes to voting rights, he has pushed in the opposite direction, presiding over the court’s systematic dismantling of the Voting Rights Act, overriding Congress’s clear intentions and gravely injuring U.S. democracy.

The first major blow came in 2013, when the court eviscerated the act’s Section 5, which required states with a history of racial discrimination to preclear changes to voting rules with the Justice Department. The decision left in place a backstop, Section 2, which allows legal challenges to discriminatory election rules after they have been enacted. On Thursday, the Roberts court sharply limited that provision as well.

john roberts oThe court upheld two Arizona election rules the Democratic National Committee claimed discourage minority voting. The legitimacy of Arizona’s policies could be debated, and the court could have struck them down without indulging in dangerous overreach. But in its reasoning and guidance for future cases, the six justices in the majority, including the chief, flashed a green light to state lawmakers eager to erect new barriers to voting.

The majority imposed stipulations on applying Section 2 that “all cut in one direction — toward limiting liability for race-based voting inequalities,” Justice Elena Kagan pointed out in a dissent. This new list of restrictions, Justice Kagan continued, “stacks the deck against minority citizens’ voting rights. Never mind that Congress drafted a statute to protect those rights.”

The majority invites states to argue that unnecessarily strict voting rules impose no more than mild burdens on casting ballots, despite the fact that the Voting Rights Act was meant to eliminate obvious as well as subtle forms of voting discrimination. What may appear to be mere inconveniences or seemingly race-neutral rules can in practice reduce minority voting. Some of that is fine, the court said. While admitting that one of the Arizona laws in question disproportionately affects Black, Latino and Native American voters, the majority declared that the difference was too small to matter. Yet elections are often decided by fractions of percentage points, and every vote should be seen as precious.

The court also encouraged states to argue that worries about fraud and voting integrity justify new burdens on the right to vote — though there is little or no evidence that the fraud state leaders claim they are fighting actually occurs. From the nation’s Jim Crow past to its voter-suppression present, states have claimed that they merely want to ensure ballot integrity as they impose voting restrictions that disproportionately burden minority voters. The Supreme Court lent legitimacy to their search for pretext.

  • Washington Post, Opinion: Democrats will have to find new ways to defend voting rights. Here’s one, Greg Sargent

ny times logoNew York Times, Democrats Brace for a Narrower Path to Challenge New Voting Laws, Nick Corasaniti and Reid J. Epstein, July 1, 2021. Conservative groups challenged the state’s disclosure requirements, saying they could lead to harassment.

Voting rights activists, on the defensive this year in the face of a wave of restrictive new voting laws, grappled on Thursday with new guidance from the Supreme Court signaling that the challenge will be even steeper now for opposing these laws in court.

The 6-to-3 ruling established a series of “guideposts” for what could potentially constitute a violation under Section 2 of the Voting Rights Act, appearing to limit one of the few paths Democrats and activists have for mounting legal challenges to new measures currently being proposed and passed in Republican-controlled states.

“This decision overly constricts how we view evidence in our Section 2 cases, and that’s going to make it harder — not unwinnable — but harder,” said Allison Riggs, a senior lawyer at the Southern Coalition for Social Justice, a nonprofit dedicated to protecting the rights of people of color.

There are other legal avenues to challenge restrictive voting laws besides the Voting Rights Act, including under the First, 14th and 15th Amendments to the Constitution. But the act has been paramount in helping to rein in laws that could disproportionately affect communities of color, and the decision could threaten some of the legal strategies that voting rights groups and election lawyers have been drafting to challenge some of the new laws.

But voting rights experts noted that the court’s decision on Thursday did not invalidate or significantly hollow out Section 2 of the Voting Rights Act. “I do think the test will work to stop a lot of discriminatory electoral practices,” said Chad Dunn, the co-founder of the Voting Rights Project at the University of California, Los Angeles, and a longtime voting rights lawyer. “And that part is good news.”

President Biden said he was “deeply disappointed” in the court’s ruling and urged Congress to “restore the Voting Rights Act to its intended strength.”

At least three major cases involving Section 2 claims are in the federal court system, according to a database of election litigation maintained by Ohio State University. One of the cases is a lawsuit that the Justice Department filed last week against Georgia, arguing that the state’s new omnibus voting law, S.B. 202, is racially discriminatory in both its intent and its impact.

ny times logoNew York Times, Supreme Court Backs Donor Privacy for California Charities, Adam Liptak, July 1, 2021. Nick Corasaniti and Reid J. Epstein, July 1, 2021. The Supreme Court ruled on Thursday that California may not require charities soliciting contributions in the state to report the identities of their major donors.

The vote was 6 to 3, with the court’s three liberal members in dissent. Chief Justice John G. Roberts Jr., writing for the majority, rejected the state’s requirement, saying it violated the First Amendment’s protection of the freedom of association.

“California casts a dragnet for sensitive donor information from tens of thousands of charities each year,” he wrote, “even though that information will become relevant in only a small number of cases.”

The decision concerned charitable donations but its logic was sweeping, Justice Sonia Sotomayor wrote in dissent, suggesting that it could erode disclosure laws concerning political campaigns, too.

“Today’s analysis marks reporting and disclosure requirements with a bull’s-eye,” she wrote. “Regulated entities who wish to avoid their obligations can do so by vaguely waving toward First Amendment ‘privacy concerns.’”

California’s disclosure requirement was challenged by Americans for Prosperity Foundation, a group affiliated with the Koch family, and the Thomas More Law Center, a conservative Christian public-interest law firm. They said it chilled the groups’ ability to raise money and subjected donors to possible harassment.

The disputed measure required charities to file with the state a copy of their Internal Revenue Service Form 990, including its Schedule B, which identifies major donors.

A federal trial judge in California blocked the requirement, rejecting the state’s argument that it used the forms to investigate charitable misconduct. The judge found that investigations or audits based on the forms were rare and that the information in question could be obtained in other ways, notably by using subpoenas.

The judge also found that California had promised to keep the forms secret but had not always done so. According to court papers, the challengers discovered in 2015 that the state had displayed about 1,800 forms on its website. State officials said that the disclosures were inadvertent and promptly corrected and that the state had imposed new security measures.

The United States Court of Appeals for the Ninth Circuit, in San Francisco, reversed the trial judge’s ruling, saying that the filing requirement promoted investigative efficiency and that the security breaches had been addressed.

Chief Justice Roberts wrote that the court has long protected the right of free association guaranteed by the First Amendment, notably in a 1958 decision shielding the membership list N.A.A.C.P.’s Alabama office from state officials there.

 

June

June 30

Roll Call, Lawmakers weigh in on proposals to change the Supreme Court, Todd Ruger, June 30, 2021 (print ed.). White House commission on Supreme Court to hold first meeting Wednesday. Several members of Congress wanted to make sure the White House commission on the Supreme Court heard their views ahead of the first public hearing Wednesday on the debate over expanding the court beyond its current nine members and other potential overhauls.

Texas Republican Sen. Ted Cruz and Republican Rep. Dusty Johnson of South Dakota submitted a comment to the commission that Congress has exclusive authority to change the Supreme Court’s structure.

The letter also seeks “to remind you of the growing congressional momentum” for their bills for a constitutional amendment to keep the court at nine justices, with 18 senators and 173 representatives as cosponsors.

“Despite the President’s inability to alter the Supreme Court, President Biden established your commission to pacify the far left,” Cruz and Johnson wrote.

Those proposed amendments respond to calls from some liberal advocacy groups and members of Congress to expand the court.

Massachusetts Democratic Sen. Edward J. Markey and three Democratic members of the House — Judiciary Chairman Jerrold Nadler and Rep. Mondaire Jones, both of New York, and Georgia Rep. Hank Johnson — have introduced a bill to increase the number of justices from nine to 13.

Speaker Nancy Pelosi has cast serious doubts on the chances of the bill, pointing instead to the work of the commission that will examine high-profile ideas such as whether justices should have term limits instead of life tenure on the Supreme Court.

Senate Majority Leader Charles E. Schumer of New York sent the commission the series of reports the Democratic Policy and Communications Committee published in May 2020 titled, “Captured Courts: The GOP’s Big Money Assault on The Constitution, Our Independent Judiciary, and the Rule of Law.”

A bill Rhode Island Democratic Sen. Sheldon Whitehouse championed and Republicans opposed — which has a provision to require advocacy groups to disclose donors if they run ads around judicial nomination fights — is in Democrats’ elections, campaign finance and ethics overhaul bill that stalled in the Senate during a procedural vote this month.

“Among many other serious problems, this big-money assault on our courts has resulted in voters waiting for hours in long lines to exercise their right to vote; special interests flooding our airwaves with political ads; worker discrimination cases being thrown out of court; communities being left powerless to regulate gun violence; polluters enabled to pollute our air and water without consequence; and access to health care under constant attack,” Schumer wrote.

“I believe that the problems identified in these reports should inform the work of the Commission, and I ask that you share the reports with all of your fellow commissioners,” Schumer wrote.

Whitehouse, in a letter to the commission with fellow Democratic Sens. Mazie K. Hirono of Hawaii and Richard Blumenthal of Connecticut, as well as Hank Johnson, suggested a dozen areas the commission should study that includes the issue of dark money influence on the Supreme Court.

“This set of interwoven problems connected by secret funding is likely the primary driving force behind the degradation of confidence that necessitated this Commission’s formation,” the Democratic members wrote.

That includes the role of dark money nonprofit groups that have held sway over the judicial confirmations process, whether Congress should have a role in cleaning up Supreme Court decisions that rely on factual errors, disclosure requirements for outside groups that file briefs in a Supreme Court case, and the disclosure requirements for justices.

Earlier this month, Whitehouse and Louisiana Republican Sen. John Kennedy asked the Justice Department for travel records of the justices as part of a broader congressional look at financial disclosure standards for the receipt of gifts, travel and other financial gains by senior government officials.

The commission's public meeting, conducted virtually online, will last all day. The commission will hear four panels with five people on each, tackling topics of Supreme Court reform, the court’s role in the constitutional system, how the court selects cases and transparency at the court.

One witness, Amy Howe of SCOTUSblog, will testify that the justices should continue with live audio of oral arguments when they return to in-person arguments in the courtroom.

The Supreme Court held arguments over the telephone since the onset of the pandemic, which were broadcast online and television by C-SPAN and other outlets. But it is unclear if the Supreme Court will continue to allow livestreams of oral arguments when the next term starts in October.

Last week, the Senate Judiciary Committee advanced a bipartisan bill would require the Supreme Court to permit television coverage of all open sessions in almost all cases. Supreme Court justices have long resisted calls for more audio and video access to its work.

The commission also intends to hold panels at its July meeting, tentatively planned for July 20.

washington post logoWashington Post, Analysis: Stephen Breyer, and why Thursday is a huge day for the future of the Supreme Court, Aaron Blake, June 30, 2021.  Relatively few people are talking about it right now, but Thursday (and perhaps the days to come) could be one of the most pivotal moments in recent Supreme Court history.

Yes, that pertains to the key decisions that are set to be handed down on Thursday, the final day of the court’s current term. The long-awaited cases include key rulings on the Arizona GOP’s election laws and the role of so-called “dark money” in politics.

Stephen BreyerBut history suggests it’s also quite possibly the time when we get some clarity about the future makeup of the court — and particularly the all-important question about whether Justice Stephen G. Breyer, right, will retire.

Conservatives built a historic majority on the court during the Trump presidency thanks to the timing of a retirement (Anthony M. Kennedy) and a non-retirement (Ruth Bader Ginsburg) along with some bare-knuckle political gamesmanship (Antonin Scalia). Ginsburg’s refusal to heed calls to retire when Democrats controlled her replacement process, in particular, has led to a more forceful “Breyer retire” movement.

June 29

 washington post logoWashington Post, NCAA leaders recommend allowing athletes to profit off their personal brands, Chuck Culpepper, June 29, 2021 (print ed.). The NCAA Division I Board of Directors is expected to adopt the policy Wednesday. The NCAA’s Division I Council recommended Monday that the organization cease its long-held amateurism rules regarding name, image and likeness rights, a seismic shift in long-ncaa logostanding policies that prohibited college athletes from benefiting financially from their talents and fame.

The 24-member NCAA Division I Board of Directors will review that historic recommendation Wednesday, the eve of the July 1 date that athletes rights advocates have been pointing toward with anticipation for months.

On that day, eight of the 21 states that have passed laws enabling athletes the NIL option will see those laws go into effect. The eight are Alabama, Florida, Georgia, Kentucky (by executive order from Gov. Andy Beshear), Mississippi, New Mexico, Ohio and Texas. A ninth state, Arizona, has a law passed and going into effect on July 23.

Twelve more states have laws going into effect in 2022, 2023 and 2025, but some might move to bring those laws closer to the present.

washington post logoWashington Post, Court dismisses FTC antitrust complaint against Facebook, says agency can refile, Cat Zakrzewski and Rachel Lerman, June 29, 2021 (print ed.). A district court in D.C. said the Federal Trade Commission failed to offer enough facts to prove Facebook has monopoly power, immediately sparking calls for a rewrite of antitrust law.

ftc logoThe court also dismissed a similar lawsuit brought by a group of state attorneys general against the company that challenged the company’s acquisitions of photo-sharing service Instagram and messaging app WhatsApp. The court ruled that the states waited too long to challenge Facebook’s acquisition of the companies in 2012 and 2014, respectively.

It was a major victory for Facebook, which has long argued that it was just one option in a burgeoning universe of social media companies, citing the rise of such services as TikTok, facebook logowhich claims 50 million daily users in the United States.

In its complaint, the FTC alleged that Facebook controls more than 60 percent of the social media market. The commission argued that “no other social network of comparable scale exists in the United States,” citing a redacted figure of the daily and monthly users on the company’s flagship service. The FTC alleged that Facebook has had monopoly power since at least 2011, but it defined the market it said Facebook monopolizes very narrowly, excluding professional social networks like LinkedIn and video streaming players such as YouTube.

washington post logoWashington Post, Supreme Court will not hear Va. dispute on transgender bathroom rights, a win for student, Robert Barnes, June 29, 2021 (print ed.).  The Supreme Court declined to hear a legal battle over the rights of transgender students, handing a victory to Gavin Grimm over the Virginia school board that denied him access to the boys’ restroom.

The Supreme Court on Monday declined to hear a legal battle over the rights of transgender students, handing a victory to Gavin Grimm over the Virginia school board that denied him the right to use the boys’ restroom.

As is its custom, the court did not say why it was rejecting the appeal of the Gloucester County school district. Justices Clarence Thomas and Samuel A. Alito Jr. said they would have accepted the case.

The court’s decision not to take up the case does not establish a national precedent, nor does it necessarily signal agreement with the lower court that sided with Grimm.

But gay- and transgender-rights activists cheered the high court’s decision to stay out of the long-running dispute. It let stand a decision by the U.S. Court of Appeals for the 4th Circuit that was a resounding victory for Grimm, who has become a well-known figure in the transgender-rights movement.

 

June 24 

 britney spears james spears resized ap

ny times logoNew York Times, Is the Forced Contraception Alleged by Britney Spears Legal? Jan Hoffman, June 24, 2021. The United States has a dark history of court-sanctioned sterilization, but more recent rulings and legislation suggest it would violate a basic right.

Among the stunning assertions that the pop star Britney Spears, above right, made to a Los Angeles probate judge this week, as she sought to end her protracted conservatorship, was one that shook experts in guardianship law and reproductive rights deeply. She said a team led by her father, James, above left, who is her conservator, prevented her from having her IUD removed because the team did not want her to have more children.

“Forcing someone to be on birth control against their will is a violation of basic human rights and bodily autonomy, just as forcing someone to become or stay pregnant against their will would be,” said Ruth Dawson, a principal policy associate at the Guttmacher Institute, a research group that supports reproductive rights.

Court-condoned compelled contraception is rare in conservatorship. But the specter it raises — forced sterilization — does have a grim, extensive history in the United States, especially against poor women, women of color and inmates. In the early 20th century, the state-sanctioned practice was upheld by the United States Supreme Court.

Although the court moved away from that position in the 1940s, and consensus arose through the growing canon on informed consent that forced sterilization was inhumane, the practice continued to be quietly tolerated.

Finally, by the end of the 1970s, most states had repealed laws authorizing sterilization, although allegations of forced hysterectomies and tubal ligations on women in immigrant detention centers continue to be raised. It wasn’t until 2014 that California formally banned the sterilization of female inmates without consent.

The scant law on the question in conservatorship indicates what an outlier the Spears case may be. In 1985, the California Supreme Court denied the petition of guardian parents of a 29-year-old woman with Down syndrome who wanted her to undergo a tubal ligation.

Typically, a conservator has temporary control over the finances and even medical care of an incapacitated person. Experts underscored that Ms. Spears’s assertion is unverified. But if it’s accurate, they said, the most likely rationale, however suspect, might be that Jamie Spears, her father, wants to protect her finances from a baby’s father, potentially her boyfriend, who is reportedly at odds with Mr. Spears.

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.
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“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 

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 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.

 bureau of prisons logo horizontal

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

   supreme court Custom

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

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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.

 

February

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

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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!!!!”

She added in another: “GOD BLESS EACH OF YOU STANDING UP or PRAYING.”

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.

 

January

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,