U.S. High Courts, Cases 2020-21

 

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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

September

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.

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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

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 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.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

April 19

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

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

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

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

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

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

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

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

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

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

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

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

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

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

April 18

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

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

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

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

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

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

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

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

 

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

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

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

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

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

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

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

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

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

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

April 15

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

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

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

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

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

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

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

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

courtney wild

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

April 11

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

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

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

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

April 10

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

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

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

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

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

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

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

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

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

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

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

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

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

April 9

 supreme court Custom

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

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

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

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

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

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

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

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

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

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

April 8

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

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

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

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

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

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

April 7

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

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

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

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

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

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

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

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

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

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

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

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

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

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

April 5

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

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

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

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

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

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

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

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

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

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

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

April 3

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

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

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

The Five Classes of Insurrectionists

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

March 2021 Update

March 30

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

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

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

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

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

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

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

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

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

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

March 26

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

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

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

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

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

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

March 23

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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.

 

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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

djt looking up

washington post logoWashington Post, Trump’s access to sensitive briefings will be determined by intelligence officials, White House clarifies, Isaac Stanley-Becker, Feb. 6, 2021. The statement clarifies comments from President Biden to "CBS Evening News" expressing reluctance about making the briefings available to his predecessor.

The White House on Saturday said President Biden’s comment that his predecessor should not receive intelligence briefings was not a final decision on the matter, which will instead be resolved by intelligence officials.

Biden made his views known during an appearance on “CBS Evening News” with Norah O’Donnell. Asked whether former president Donald Trump should receive the briefings, as is customary for ex-presidents, Biden said, “I think not.”

“What value is giving him an intelligence briefing?” Biden said in a portion of the interview aired Friday. “What impact does he have at all, other than the fact he might slip and say something?” (See previous story: New York Times, Biden Bars Trump From Receiving Intelligence Briefings, Citing ‘Erratic Behavior,’ David E. Sanger.)

Biden has the unilateral authority to deny intelligence access to anyone he chooses, and his remarks seemed to suggest he considered Trump enough of a risk to do so. But his aides said he would leave that decision to his intelligence team.

“The president was expressing his concern about former president Trump receiving access to sensitive intelligence, but he also has deep trust in his own intelligence team to make a determination about how to provide intelligence information if at any point the former president Trump requests a briefing,” White House press secretary Jen Psaki said in a statement issued Saturday.

Former presidents do not receive the same classified daily briefing as a sitting commander in chief. Still, their briefings are typically delivered by current intelligence officers — partly out of respect and convention and partly to prepare them if their advice is solicited or if they’re representing the administration abroad.

The response made clear that Biden’s concerns go beyond the events of Jan. 6, which are core to the Senate impeachment trial set to begin in a few days. As president, Trump selectively revealed highly classified information to attack his adversaries, gain political advantage and impress or intimidate foreign governments, in some cases jeopardizing U.S. intelligence capabilities.

Proof, Investigative Commentary:  If You Love America, You Want Donald Trump Convicted. Here's Why, Seth Abramson, below left, Feb. 5, 2021. Far more is at stake now than the fate of a single political party or former president.

seth abramson headshotSome on both the left and right of American politics say that the main reason not to hold a trial of Donald Trump isn’t some fraudulent constitutional dodge cooked up by Trump, his lawyers, and Congressional Republicans — namely the canard, rejected by the nonpartisan Congressional Research Service, that the Senate can’t convict former presidents — but rather that an acquittal would signal our acquiescence to insurrection.

I don’t know what sort of backwards thinking this country’s intelligentsia has come to that it would embrace the paradox that upholding American rule of law undermines it; that way lies madness.

seth abramson proof logoIndeed, the very fact that an acquittal would signal the country’s acquiescence to insurrection is the reason to hold a trial. Nations hold trials as much to hold themselves accountable to their first principles as to hold defendants accountable.

american flag upside down distressThe jury in Trump’s upcoming trial is ostensibly the senators of the 117th Congress, but in fact it’s you, me, and every patriotic American. A conviction of Donald Trump for incitement to insurrection would be a vote by all of us to continue moving toward the America we wish to become, away from a dark period in our history of which so many of us are deeply ashamed.

By comparison, an acquittal would open the door to a return to that darkness in 2024, in the form of an embossed invitation for Trump to run for president again and to undoubtedly sow insurrection again.

Those in media today, and it is far too many, whose focus of late has not been on the future of our country but the daily political “horserace” that pays their salaries — and who, in inconsequence, have spent each hour of each day telling us that the verdict in this trial has already been determined — should be ashamed of themselves. And they should be shamed in the eyes of the tens of millions of Americans who understand that convicting Donald Trump of the most grave crime against an Oath of Office that any American president has ever committed is not a game, but a national imperative.

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

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

 From left, Roy Cohn and Donald Trump attend the Trump Tower opening in New York on Oct. 1, 1983 (Sonia Moskowitz / Getty Images).

Feb. 5

ny times logoNew York Times, Biden Won’t Restore Bar Association’s Role in Vetting Judges, Charlie Savage, Feb. 5, 2021. The decision not to give the American Bar Association names of potential nominees for evaluation came after progressives criticized the group for undercutting a push for diversity.The Biden administration has told the American Bar Association that it will not restore the group’s quasi-official gatekeeper role in vetting potential judges before the president decides whether to nominate them, according to the legal group’s president, Patricia Lee Refo.

aba logoThe policy, a first for a Democratic president, echoes that of the last two Republican administrations. The bar association’s role had dated to the Eisenhower administration and served as a way to ensure that judges who have tenure for life are qualified.

“Every White House sets its own rules for judicial nominations,” Ms. Refo said in an interview. “Other White Houses have found it useful to get our confidential evaluation in private. This White House has made a different decision. But the evaluation work that we do will go forward without change.”

The bar association and the Obama administration had recurring tensions over the fact that most of the “not qualified” ratings the bar group’s peer-review system produced were for women or people of color. Against that backdrop, liberal groups greeted the decision as a signal that the White House under President Biden was determined to diversify the federal bench.

Not waiting for the bar association to vet potential nominees — a process that takes about a month, according to people familiar with it — is also likely to help speed Mr. Biden’s efforts to push nominations into the confirmation pipeline more quickly than President Barack Obama did. President Donald J. Trump set a record-breaking pace in appointing judges — largely white and male — during his term.

The decision by the White House was a blow to the prestige of the A.B.A., which describes itself as the largest voluntary association of lawyers in the world. Commenting on nominees only after their names have been put forward reduces the group’s power to block potential judges it deems unqualified.

Still, the bar group — which has expressed eagerness to work with the Biden administration on various issues related to the judicial system — is not publicly objecting to the shift.

Randall D. Noel, this year’s chairman of the bar association’s vetting committee, said he had been in contact with Senate Judiciary Committee staff members since the White House decision and was told that lawmakers still greatly value the A.B.A.’s input. He said his group would continue conducting its reviews before confirmation hearings, as it did under Mr. Trump.

Feb. 2

washington post logoWashington Post, Ginni Thomas apologizes to husband’s Supreme Court clerks after Capitol riot fallout, Robert Barnes, Feb. 2, 2021. Conservative political activist Virginia Thomas told her husband Justice Clarence Thomas’s former law clerks that she was sorry for a rift that developed among them after her election advocacy of President Donald Trump and endorsement of the Jan. 6 rally in D.C. that resulted in violence and death at the Capitol.

“I owe you all an apology. I have likely imposed on you my lifetime passions,” Thomas, who goes by Ginni, recently wrote to a private Thomas Clerk World email list of her husband’s staff over his three decades on the bench.

“My passions and beliefs are likely shared with the bulk of you, but certainly not all. And sometimes the smallest matters can divide loved ones for too long. Let’s pledge to not let politics divide THIS family, and learn to speak more gently and knowingly across the divide.”

clarence virginia thomas swearing inA sampling of posts made to the group were shared with The Washington Post by a member upset with some of the pro-Trump messages written by Ginni Thomas and others in the lead-up and aftermath of the election. Thomas did not respond to requests for comment. Several former clerks, who spoke on the condition of anonymity because the listserv is private, verified the dispute in what is normally an affable setting meant to celebrate achievements of the clerk “family.”

Besides the friction there, Thomas (shown with her husband at his 1991 swearing-in ceremony) has drawn outrage among liberals for public political commentary on her “Ginni Thomas” Facebook page. Her comments there celebrated Trump’s supporters who assembled in D.C. on Jan. 6, hundreds of whom stormed the Capitol, resulting in the deaths of five people.

In the early morning post, Thomas encouraged her Facebook followers to watch the day’s events unfold on conservative news media, writing, “LOVE MAGA people!!!!”

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, she had wanted to teach gender and the law, but the dean refused, telling her to pick a “real subject,” as she recalled. She agreed to teach contracts instead, but changed her mind two years later when the dean retired and several alumni threw him a party — and invited a stripper.

“I said to hell with contracts,” she later wrote.

But progress on gender-equity issues brought its own complications. As women made their way into law firms and legal faculties, among other professions, during the 1980s and ’90s, it became easy to conclude that sex discrimination had disappeared, or was fast on its way to disappearing — what Professor Rhode referred to as the “no-problem problem.”

One of Professor Rhode’s best known books grew out of an Op-Ed for The New York Times about her distaste for high heels and the social mores that demand women wear them.

Through law review articles and countless opinion pieces in publications like The New York Times, The New Republic and Slate, she documented the barriers that women still faced, among them unconscious bias, unequal pay, lack of mentors, stereotypes and inflexible workplace structures.

U.S. Politics, Governance, Civic Life

Steve Bannon at a 2013 Tea Party Rally (Photo via C-SPAN)

Steve Bannon at a 2013 Tea Party Rally (Photo via C-SPAN)

Wayne Madsen Report, Commentary: The battle against fascism and a looming World War III, Wayne Madsen, right, Jan. 26, 2021. The threat of international wayne madsen screen shotfascism is now so great, the world's democracies must declare total war on the leadership, militias, political constructs, and infrastructure of global fascism.

On January 25, the House of Commons in Canada got the ball rolling by unanimously voting for a motion put forth by the New Democratic Party (NDP) that canadian flagdeclares the pro-Donald Trump Proud Boys a terrorist organization and bans it from operating on Canadian soil.

The U.S. government should awake to the dangers of the global fascist movement.

Two overseas organizations that involve Americans, The Movement and The Base, should be squeezed politically and financially by the Biden administration. The Movement, which is headquartered in Brussels and is Steve Bannon's fledgling Fascist International, has managed to secure funding guo wen gui 2017from exiled Chinese billionaire Guo Wengui, left -- who has replaced Robert and Rebekah Mercer as Bannon's primary sugar daddy -- and moneyed interests in the Roman Catholic Church that are affiliated with the fascist religious order Opus Dei.

Guo has provided Bannon with media platforms, including a television network, that are being used to rally the extreme right around the United States and the world. Guo was granted political asylum by the Trump administration after China issued a warrant for his arrest for epoch timesseveral counts of financial fraud in China.

Guo and Bannon have linked their media efforts with those of the religious cult Falun Gong, which publishes the pro-Trump and far-right conspiracy newspaper Epoch Times. Bannon's strategy is to infiltrate existing political parties with far-right activists. So far, Bannon's ploy has seen success with the Republican Party, especially its state-level party organizations in Arizona, Oregon, Maine, Texas, and Hawaii that have been largely taken over by conspiracy theorists touting Qanon inanity.

Jan. 25

mar a lago aerial Custom

washington post logoWashington Post, Supreme Court ends lawsuits alleging Trump illegally profited from business interests, Robert Barnes and Ann E. Marimow, Jan. 25, 2021. All sides agreed that cases involving “emoluments clauses” are moot after Donald Trump lost reelection.

The Supreme Court on Monday put an end to lawsuits alleging that former president Donald Trump violated a constitutional anti-corruption prohibition by profiting from his business empire while president.

The justices, without comment or noted dissent, declined to hear Trump’s request to consider lower court orders that said lawsuits could go forward, agreeing with those on both sides of the issue that the cases became moot with Trump no longer in office.

The justices also vacated the lower court judgments in the cases, one of which was filed by the attorneys general of Maryland and the District of Columbia.

It means that there is no definitive answer after years of legal wrangling over the Constitution’s emoluments clauses, which prohibit presidents and others from accepting gifts or payments from foreign governments without congressional approval.

The question has rarely been presented because presidents rarely maintain active business interests in office, as Trump did. Much of the litigation turned on the president’s interest in the Trump International Hotel on Pennsylvania Avenue, near the White House, which became a magnet for foreign dignitaries and others doing business with the government.

The litigation was consumed with questions about who had the right to bring such a suit, and legal questions without precedent.

“We are proud that because of our case, a court ruled on the meaning of ‘emoluments’ for the first time in American history, finding that the Constitution prohibits federal officials from accepting almost anything of value from foreign or domestic governments,” District of Columbia Attorney General Karl A. Racine and Maryland Attorney General Brian E. Frosh said in a joint statement.

ny times logoNew York Times, Supreme Court Won’t Hear Appeal from Sheldon Silver, Former N.Y. Lawmaker, Adam Liptak, Jan. 25, 2021. Mr. Silver, who once dominated state politics as the speaker of the New York Assembly, was convicted of taking illicit payments from real estate developers.

sheldon silver wThe Supreme Court on Monday let stand the conviction of Sheldon Silver, right, the once-powerful State Assembly speaker in New York who went to prison last summer on federal corruption charges.

As is the court’s custom, its brief order gave no reasons for turning down the case. Justice Neil M. Gorsuch, joined by Justice Clarence Thomas, dissented, saying the court should have heard the case to clarify its rulings on bribery and extortion.

The court has in recent years been skeptical of broad interpretations of public corruption laws, saying they are not all-purpose devices to ensure good government.

Mr. Silver’s lawyers told the justices that prosecutors had overreached in his case by securing his conviction of accepting bribes in a real estate scheme without proving that those who made the payments had intended to influence particular official actions.

The federal appeals court in New York, in affirming Mr. Silver’s conviction for his role in the scheme, said it was enough that he understood that he would take official actions in exchange for the payments.

washington post logoWashington Post, Six shot dead, including pregnant woman, in ‘mass murder,’ Indianapolis officials say, Meryl Kornfield, Jan. 25, 2021 (print ed.). Authorities said they have determined the attack was “targeted” and there may have been more than one shooter, but no suspects have been identified.

FBI crime data indicated killings rose nearly 21 percent nationwide in the first nine months of the year, The Post previously reported.

Palmer Report, Opinion: Finishing off Brett Kavanaugh, Bill Palmer, Jan. 25, 2021. Democratic Senator Sheldon Whitehouse expressed his ongoing exasperation this week that the Trump-era DOJ never did properly investigate Brett Kavanaugh, and now Kavanaugh is casting absurd Supreme Court votes unabated.

bill palmer report logo headerThe minute President Biden’s Attorney General Merrick Garland is confirmed, I strongly urge Senate Democrats to refer Brett Kavanaugh to the DOJ for felony perjury. It’s an easily proven charge, as we all saw him lie under oath about various key topics during his confirmation hearing.

If the DOJ brings a case, Kavanaugh will end up having to resign in exchange for non-prosecution. There’s never a guarantee that the DOJ will bring a case. But with Trump gone, and the DOJ being back to making decisions based on the merits of any given case, it’s difficult to imagine the DOJ not bringing a case in such a clear cut instance of felony perjury. For that matter, once the DOJ opens the perjury case, it can investigate the things he was lying about, such as how his debts magically disappeared, and get to the bottom of that as well.

Kavanaugh has to go. Even if we can’t nail him for sexual assault, we can nail him for perjury. Getting him off the Supreme Court won’t fix what’s currently wrong with the court – but it’ll make doing so easier.

Jan. 23

Justice Department logo

ny times logoNew York Times, Trump and Justice Dept. Lawyer Said to Have Plotted to Oust Acting Attorney General, Katie Benner, Jan. 23, 2021 (print ed.). Trying to find another avenue to push his baseless election claims, Donald Trump considered installing a loyalist, and had the men make their cases to him.

The Justice Department’s top leaders listened in stunned silence this month: One of their peers, they were told, had devised a plan with President Donald J. jeffrey rosenTrump to oust Jeffrey A. Rosen, right, as acting attorney general and wield the department’s power to force Georgia state lawmakers to overturn its presidential election results.

The unassuming lawyer who worked on the plan, Jeffrey Clark, left, had been devising ways to cast doubt on the election results and to bolster Mr. Trump’s continuing legal battles and the pressure on Georgia politicians. Because Mr. Rosen had refused the president’s entreaties to jeffrey clark ocarry out those plans, Mr. Trump was about to decide whether to fire Mr. Rosen and replace him with Mr. Clark.

The department officials, convened on a conference call, then asked each other: What will you do if Mr. Rosen is dismissed?

The answer was unanimous. They would resign.

Their informal pact ultimately helped persuade Mr. Trump to keep Mr. Rosen in place, calculating that a furor over mass resignations at the top of the Justice Department would eclipse any attention on his baseless accusations of voter fraud. Mr. Trump’s decision came only after Mr. Rosen and Mr. Clark made their competing cases to him in a bizarre White House meeting that two officials compared with an episode of Mr. Trump’s reality show “The Apprentice,” albeit one that could prompt a constitutional crisis.

georgia mapThe previously unknown chapter was the culmination of the president’s long-running effort to batter the Justice Department into advancing his personal agenda. He also pressed Mr. Rosen to appoint special counsels, including one who would look into Dominion Voting Systems, a maker of election equipment that Mr. Trump’s allies had falsely said was working with Venezuela to flip votes from Mr. Trump to Joseph R. Biden Jr.

dominion voting systemsThis account of the department’s final days under Mr. Trump’s leadership is based on interviews with four former Trump administration officials who asked not to be named because of fear of retaliation.

Mr. Clark said that this account contained inaccuracies but did not specify, adding that he could not discuss any conversations with Mr. Trump or Justice Department lawyers. “Senior Justice Department lawyers, not uncommonly, provide legal advice to the White House as part of our duties,” he said. “All my official communications were consistent with law.”

nancy pelosi chuck schumer cropped jan 8 2019 screengrab

 washington post logoWashington Post, Senate reaches deal to start Trump’s trial Feb. 9, Mike DeBonis, Jan. 23, 2021 (print ed.). The majority leader said the wait would allow the Senate to make further progress on President Biden’s nominations and his $2 trillion pandemic relief proposal.

The impeachment trial of former president Donald Trump will begin Feb. 9 under a deal reached Friday by top Senate leaders — delaying by two weeks the us senate logohigh-stakes proceedings over whether Trump incited the violent Jan. 6 attack on the U.S. Capitol.

The agreement was made by Senate Majority Leader Charles E. Schumer (D-N.Y.), above left, and Minority Leader Mitch McConnell (R-Ky.), right, following a standoff over the timing of the trial, which could permanently bar Trump from holding public office.

mitch mcconnellThe House on Jan. 13 passed a sole impeachment article, alleging “incitement of insurrection.” House leaders could have forced the Senate to begin the trial immediately by transmitting the papers across the Capitol. But a delay serves the former and current presidents: Trump has struggled to assemble a legal team and muster a defense, and President Biden needs the Senate to confirm most of his Cabinet appointees.

McConnell pushed Thursday for a three-week delay, but Schumer and House Speaker Nancy Pelosi (D-Calif.), above right, on Friday morning announced their intention to deliver the impeachment papers Monday — setting up a trial as soon as Tuesday. Later in the day, Biden publicly called for a delay, saying, “the more time we have to get up and running to meet these crises, the better.”

Announcing the two-week timetable Friday, Schumer said the wait would allow the Senate to make further progress on Biden’s nominations and his $2 trillion pandemic relief proposal — the centerpiece of his early legislative agenda — before shifting to Trump.

“We all want to put this awful chapter in our nation’s history behind us, but healing and unity will only come if there is truth and accountability, and that is what this trial will provide,” he said.

ny times logoNew York Times, White House Orders Assessment on Violent Extremism in the U.S., Julian E. Barnes and Hailey Fuchs, Jan. 23, 2021 (print ed.). President Biden on Friday ordered the director of national intelligence to work with the F.B.I. and the Department of Homeland Security to conduct a comprehensive assessment of the threat from domestic violent extremism, a sign of how seriously the new administration is taking the issue in the aftermath of the Jan. 6 riot at the Capitol.

The request comes only days after Avril D. Haines, the newly installed director of national intelligence, pledged to members of Congress during her confirmation hearing that she would help with just such an assessment.

FBI logoThe new intelligence work began as people charged in the mob attack on the Capitol by supporters of former President Donald J. Trump continued to appear in court. On Friday, a federal magistrate judge in Dayton, Ohio ordered Donovan Crowl, an accused rioter linked to the far-right group the Oath Keepers, detained until his trial, citing the safety of the community.

Domestic terrorism and violent groups are a thorny issue for intelligence agencies like the C.I.A., which are limited to tracking attempts by foreign governments or organizations to influence extremist groups in America. The F.B.I. and Department of Homeland Security have more leeway to investigate domestic groups and homegrown terrorism.

But Friday’s order will have practical as well as symbolic import. Jen Psaki, the White House press secretary, said the assessment would help Mr. Biden hone his policies aimed at curbing violent extremism in the United States.

“This assessment will draw on the analysis from across the government and, as appropriate, nongovernmental organizations,” Ms. Psaki said. “The key point here is that we want fact-based analysis upon which we can shape policy.”

In recent years, some parts of the intelligence community have been working to increase their focus on the threat of domestic terrorism, particularly by doing more to track growing foreign influence operations on domestic groups. The C.I.A. also has officers in its counterterrorism section who specialize in tracking racially-motivated violent extremists overseas.

The order for the evaluation from the intelligence community comes as judges continue to deny bail for suspects in the Capitol riot.

Jan. 22

President Donald J. Trump salutes as he prepares to board Marine One at Dalton Municipal Airport in Dalton, Ga, 2021 (Official White House Photo by Tia Dufour).

President Donald J. Trump salutes as he prepares to board Marine One at Dalton Municipal Airport in Dalton, Ga, 2021 (Official White House Photo by Tia Dufour).

Lawfare, Analysis: A Practical Path to Condemn and Disqualify Donald Trump, Philip Zelikow, Jan. 22, 2021. Time has come for Congress to contemplate how to hold Donald Trump accountable for his efforts to overthrow the election and incite an insurrection. After all, the last time American citizens made such a concerted, violent effort to overthrow U.S. leaders was in April 1865, when a group of conspirators murdered President Abraham Lincoln and attacked other members of his Cabinet.

As others have noticed, Congress can pursue either impeachment or the invocation of Section 3 of the 14th Amendment. Impeachment has gotten the bulk of public attention, but it’s fitting to take a closer look at Section 3. The 14th Amendment path is true to the facts and preferable procedurally, as compared to impeachment.

The 14th Amendment disqualifies any enemy of the Constitution of the United States from holding state or federal office if that person, as a public official, had previously taken an oath to support the Constitution. Congress has the duty to enforce the 14th Amendment and only Congress, “by vote of two-thirds of each House[,]” has the power to enforce the provision and to remove the disqualification.

How might Congress go about enforcing Section 3? It can simply decide in any manner it wishes, including a resolution adopted by majority votes, that Donald Trump has “given aid or comfort to the enemies” of the Constitution of the United States. The U.S. Senate, for example, refused to seat Zebulon Vance in 1871 when North Carolina elected him to the Senate because, as a former congressman, he had violated his former oath by serving the Confederacy.

In the extensive discussions of this option, for instance, by Gerard Magliocca and Daniel Hemel here on Lawfare, there are two points that may be missed in those thickets and that require emphasis.

First, the 14th Amendment does not require the Senate to conclude that Trump engaged in an insurrection. The amendment requires only that Congress conclude that Trump gave aid or comfort to enemies of the Constitution. This he did, both on Jan. 6 and in the broader context of the events after the presidential election of 2020.

The House of Representatives has already adopted this conclusion. The article of impeachment adopted by the House found that Trump violated his oath to defend the Constitution “by willfully inciting violence against the Government of the United States.” It also found that this conduct was “consistent with his prior efforts to subvert and obstruct the certification of the results of the 2020 presidential election.” Thus, the House concluded, “In all of this, President Trump gravely endangered the security of the United States and its institutions of government.”

Hemel’s explanation of the relevant standard confused matters a bit because he discussed how “aid and comfort” was defined under the criminal law of treason, which applies to enemies “of the United States.” The 14th Amendment is not identical to the criminal law of treason: It refers to enemies of the Constitution.

What America just experienced was an assault by enemies at home who, while claiming to be patriots, sought to override and thus overthrow the Constitution’s procedures for electing a president. Though he had sworn to defend the Constitution as a public official, Trump gave aid and comfort to these enemies of the Constitution. He thereby, under the 14th Amendment, disqualified himself from holding future office unless the Congress chooses to remove the disqualification by a two-thirds vote.

The House already voted that Trump aided these enemies. The Senate could therefore just concur with the House’s conclusion, by majority vote, in a resolution. To make the legal implication of this shared conclusion clear, the resolution could add that, by these actions, Donald Trump gave aid or comfort to enemies of the Constitution of the United States. This would explicitly invoke the 14th Amendment standard. Period.

Magliocca is reluctant to find power for a congressional finding because he believes some judicial involvement is needed to establish 14th Amendment disability. But the 14th Amendment expressly gives Congress the direct constitutional authority to enforce its provisions, including by legislation.

Some might worry that a congressional finding violates the constitutional prohibition on bills of attainder, a legislative act that pronounces an individual’s guilt of a certain crime. But the congressional finding is not a prohibited bill of attainder. It is not a criminal conviction. The criminal law of treason is a separate matter with its own burdens of proof and penalties.

Magliocca refers to the use of the bill-of-attainder argument by a then-Supreme Court justice, Salmon Chase. The issue came up in the treason trial case of Jefferson Davis. It was voiced by one of the two circuit judges considering the matter, Supreme Court Chief Justice Chase, who was there in his circuit-riding role. The U.S. government thought this argument was meritless, as did the other judge hearing the case and as did lead sponsors of the 14th Amendment itself. The circuit court was therefore split. The issue was not settled by the U.S. Supreme Court only because President Andrew Johnson pardoned Davis before the case could be heard.

The strangeness of the bill-of-attainder argument is underscored if one understands the historical background. Cynthia Nicoletti, a University of Virginia colleague who teaches both law and history, is the leading scholar on the Davis case. She told me she was “sort of tickled that Davis’s argument, which was cooked up by Chase and handed to his lawyers for Chase’s political gain, is being taken seriously. I always regarded it as pure nonsense. What’s really interesting to me is how it takes on a life of its own once it’s taken out of context and printed in the federal reports.”

Chase wanted to get rid of the Davis case. He had an ex parte meeting with Davis’s lawyers and suggested to them that they argue for dismissal of the indictment on the ground that the 14th Amendment had already assessed his criminal punishment and that his treason trial was therefore double jeopardy. When the government’s lawyers objected to the silliness of this claim, Chase acted as if he had not heard of the bill-of-attainder argument before. Davis’s main lawyer had his own theories about the motivations for Chase’s unusual intervention, which the court alluded to in a veiled way. Those who are interested should read Chapter 14 of Nicoletti’s book (especially pp. 293-300).

The main point, then, is that Congress can apply the 14th Amendment disqualification to Trump, by majority vote. This congressional action might eventually be challenged in court if Trump did run again and got on a ballot. The same would happen if someone who was not native born got on the ballot to run for president.

Those who want a fuller sort of accountability for Trump can make the political and legal argument that, if the votes may be there, impeachment might well be preferable. But an impeachment trial and acquittal might also be unfortunate if it fails, if it redoubles public confusion (why are they impeaching him if he is out of office?), or if it derails urgent congressional business. That is why I think it is important to maintain and develop the 14th Amendment option.

Philip Zelikow is the White Burkett Miller Professor of History at the University of Virginia. He has practiced law and served in various government positions, including as the executive director of the 9/11 Commission.

 

White House Advisor Mercedes Schlapp and her husband, prominent attorney and Trump defender Matt Schlapp flank U.S. Supreme Court Justice Brett Kavanaugh

White House Advisor Mercedes Schlapp and her husband, prominent Trump ally Matt Schlapp flank U.S. Supreme Court Justice Brett Kavanaugh.

Axios, Trump ally Matt Schlapp got $750k in unsuccessful pardon push, Lachlan Markay, Jan 22, 2021. The lobbying firm run by Trump ally Matt Schlapp brought in $750,000 in the final two weeks of 2020 from a former top Trump fundraiser and convicted fraudster who retained Schlapp to lobby — unsuccessfully — for a presidential pardon.

Why it matters: The substantial sum that the former fundraiser, Georgia's Parker "Pete" Petit, paid to Schlapp's Cove Strategies shows how valuable connections to Donald Trump were in his final days in office for wealthy felons seeking clemency from the outgoing president.

What's new: Lobbying disclosure records filed on Thursday said Schlapp, a close informal Trump adviser, worked on a "request for a pardon and other public policy issues relating to criminal justice."

The disclosure filing, which covered the last two weeks of 2020, said that Schlapp had contacted just one government office on Petit's behalf: the Executive Office of the President.
Petit was not on the list of the nearly 150 pardons and commutations that the White House released during Trump's final days in office.
Schlapp didn't respond to inquiries about the other policy work he reported performing on the account.

The backstory: Petit, a former Atlanta health care executive, co-chaired the Trump campaign's 2016 fundraising operation in Georgia.

A federal court convicted him of securities fraud in November. The charge carries a maximum sentence of 20 years in prison.

Be smart: A host of federal convicts retained lobbyists to try to win clemency from Trump in his final days. But even the most lucrative lobbying contracts didn't guarantee success.

Jan. 21

Wayne Madsen Report, Investigative Commentary: Kushner's contribution to Trump's final pardon list, Wayne Madsen, left, Jan. 21, 2021.
Donald Trump's final pardon list more resembled Jared Kushner's wish list than anything nearing a legitimate granting of clemency. In fact, counting the number of rabbis mentioned on the list as individuals putting in a good word for convicted criminals it is clear that Kushner's close connections to the right-wing Chabad organization played a big part in the formulation of the final pardon list.

Let's take a look at Trump's and Kushner's rogues gallery of those receiving pardons:

rudy giuliani recentKen Kurson was the deputy director of communications of Giuliani Partners from 2002 to 2006 and co-authored a book with Giuliani titled "Leadership." Kurson was the chief of operations for Giuliani's ill-fated 2008 presidential campaign.

In 2013, Kushner, the owner of the neo-conservative New York Observer, named Kurson as the paper's editor. The paper fed into the Trump 2016 presidential campaign's propaganda machine.

Jan. 19

ny times logoNew York Times, Analysis:' Expedited Spree of Executions’ Faced Little Supreme Court Scrutiny, Adam Liptak, right, Jan. 19, 2021 (print ed.). In its last six months, the Trump administration put more than three times as many prisoners to death as the federal government had in the last six decades.

adam liptakIn 2015, a few months before he died, Justice Antonin Scalia said he would not be surprised if the Supreme Court did away with the death penalty.

These days, after President Trump’s appointment of three justices, liberal members of the court have lost all hope of abolishing capital punishment. In the face of an extraordinary run of federal executions over the past six months, they have been left to wonder whether the court is prepared to play any role in capital cases beyond hastening executions.

Until July, there had been no federal executions in 17 years. Since then, the Trump administration has executed 13 inmates, more than three times as many as the federal government had put to death in the previous six decades.

In a dissent issued late Friday, as the court cleared the way for the last execution of the Trump era, Justice Sonia Sotomayor took stock of what the nation had learned about the Supreme Court’s attitude toward the death penalty.

“Over the past six months, this court has repeatedly sidestepped its usual deliberative processes, often at the government’s request, allowing it to push forward with an unprecedented, breakneck timetable of executions,” she wrote.

“Throughout this expedited spree of executions, this court has consistently rejected inmates’ credible claims for relief,” Justice Sotomayor continued. “The court made these weighty decisions in response to emergency applications, with little opportunity for proper briefing and consideration, often in just a few short days or even hours.”

Adam Liptak covers the Supreme Court and writes Sidebar, a column on legal developments. A graduate of Yale Law School, he practiced law for 14 years before joining The Times in 2002.

Law360, Investigation: Girardi Gained Their Trust, But Left Them With Regret, Brandon Lowrey & Ryan Boysen, Jan. 19, 2021. In an airy conference room overlooking downtown San Francisco, celebrity trial lawyer Thomas V. Girardi looked into Kathy Ruigomez's sleepless eyes and told her everything was going to be all right.

Nobody had said that to Ruigomez in the month since a natural gas pipeline explosion incinerated her home and left her 19-year-old son, Joe Ruigomez, burned and comatose. The September 2010 blast killed eight people, including Joe's girlfriend, sending flames high into the sky above their San Bruno, California, neighborhood.

Now, in an interview a decade later, Kathy Ruigomez wondered if Girardi knew he was lying when he spoke those words.

Girardi had seemed different from other lawyers, whose shills hounded Ruigomez in the hospital cafeteria and jockeyed like salesmen to take up her family's valuable claims against the utility company responsible for the blast, Pacific Gas and Electric.

Girardi wore an impeccable suit and a disarming smile that was so contagious, it drew a smile out of Ruigomez for the first time since the explosion. She knew the Los Angeles plaintiffs attorney had beaten PG&E before; she had seen "Erin Brockovich," the blockbuster film that immortalized the $333 million settlement he'd wrung out of the company in 1996.

Let me take care of all of the legal stuff, Girardi told her. You just focus on healing. Ruigomez signed a retainer agreement days later.

As Girardi had promised, things quickly began looking up. He brought in top medical specialists to help Joe, who awakened from his coma.

Girardi visited the young man regularly to stand by his bedside and encourage him. The attorney began to feel like part of the family. For years after the family reached an eight-figure settlement against PG&E, Girardi kept watch over many of the settlement funds and stayed in touch with Joe, who revered him.

Ruigomez didn't think anything of Girardi's frequent visits with her son. But that changed when the family finally asked Girardi to turn over the money.

"It's kind of disturbing that he wanted to see [Joe] face to face when he was basically stealing his money," Ruigomez said. "It's kind of a little, you know — very unsettling."

Ruigomez is among numerous former clients who have discovered that Girardi, their celebrated advocate, took much of the money he won for them and spent it.

For years, Girardi built a reputation as a wildly successful fighter for the underdog, plastering the walls of his Wilshire Boulevard office with awards and articles celebrating his billion-dollar settlements, and flaunting his absurd wealth alongside his wife on "The Real Housewives of Beverly Hills."

But when the cameras were off, the champion of the downtrodden became their predator, according to a string of lawsuits. Elderly cancer patients, poisoned families and blue-collar workers, earthquake survivors, widows and orphans have all accused him of taking untold millions from them.

Last month, an attorney for his law firm, Girardi Keese, admitted Girardi had misappropriated $2 million from a settlement fund for survivors of plane crash victims, leading to intense scrutiny of his finances and prompting creditors to drag him and his firm into bankruptcy.

But a Law360 review of thousands of pages of court documents and dozens of interviews with attorneys, former clients and others in his orbit show Girardi has faced similar accusations going back decades, even before "Erin Brockovich" made him a star.

All the while, he exploited his fearsome reputation, influence, and structural failings in the legal system to keep his clients in the dark and silence his accusers.

Jan. 15

Lawfare, Analysis: Can a Former President Be Impeached and Convicted? Keith E. Whittington, Jan. 15, 2021. I have a great deal of respect for former Judge Michael Luttig, and so one should think twice when one finds oneself in disagreement with him. I have previously argued that former presidents can be subject to House impeachment and a Senate trial. In a recent Twitter thread, now converted into an op-ed, Luttig argues that former presidents are beyond the reach of the impeachment power. I am not persuaded.

It looks like this question will be a live one, because Senate Majority Leader Mitch McConnell is not agreeing to calling the Senate back into session for an impeachment trial before Inauguration Day.

Trump’s defense team will undoubtedly argue that the Senate does not have jurisdiction over the former president, and they may even attempt to get judicial intervention if the Senate moves ahead despite that objection. Assuming the Senate (and the courts) do not shut down the trial before it gets started, the jurisdictional argument might still matter. It takes only a majority of senators to overrule the motion to dismiss, but it will take two-thirds to convict on the article of impeachment. Some number of Republican senators might latch hold of the jurisdictional argument as a reason to vote against conviction. For this reason, it’s worth taking this issue seriously.

I continue to believe that the senators should not let such a jurisdictional argument hold them up, as does Brian Kalt, who has looked into this issue closely. Luttig, however, writes that the “Constitution itself answers this question clearly.” He believes that “the Senate’s only power under the Constitution is to convict — or not — an incumbent president.” He points to “purpose, text and structure” in support of this conclusion.

The core of his claim is this argument:

The very concept of constitutional impeachment presupposes the impeachment, conviction and removal of a president who is, at the time of his impeachment, an incumbent in the office from which he is removed. Indeed, that was the purpose of the impeachment power, to remove from office a president or other “civil official” before he could further harm the nation from the office he then occupies.

Luttig notes that Article II, Section 4 of the Constitution states, “The President, Vice President and all civil officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.” Likewise, the Senate cannot convict and impose the punishment of disqualification from future federal office unless the president has been “constitutionally impeached.”

He admits that the Senate proceeded in two cases involving officials who had resigned from office before the trial and that, therefore, the congressional understanding of its impeachment power includes the possibility of trial, if not impeachment, of former officials. But, he says, “only the Supreme Court can answer the question” of the scope of the impeachment power, and he thinks that it is “so clear” that the Senate does not possess such jurisdiction that it is “highly unlikely” that the Supreme Court would accept a Senate trial in Trump’s case.

I have to admit that this conclusion is not nearly “so clear” to me. Let’s begin with the text. It is notable that the Constitution does not explicitly say who is subject to the jurisdiction of the House in the chamber’s exercise of the impeachment power, and it does not explicitly prohibit the impeachment of former officers. Luttig does not explain why he draws the inference he does from the text that he quotes. It is a plausible reading of the text, but it is not necessarily the only or correct reading.

The Constitution gives the House the “sole Power of Impeachment.” It gives the Senate the “sole Power to try all Impeachments.” The House cannot prosecute its impeachment before some other, more friendly body than the Senate, and the Senate cannot initiate its own impeachment process. The Constitution does not specify the scope of the impeachment power, except to delineate the types of charges that can be the basis for an impeachment, limit the types of punishments the Senate can impose on the convicted, and direct that certain officers “shall be removed from office” upon impeachment and conviction.

So it seems important to know what this “power of impeachment” is that has been vested in the House. The founders borrowed this power from British parliamentary practice and state constitutional practice, which does not suggest that the “power of impeachment” was intrinsically limited to incumbent officers. Quite the contrary, in fact: British practice indicates that the “power of impeachment” is the power to lodge formal allegations that an individual engaged in misconduct while holding a governmental office. Impeachments of former officers were both known and explicitly textually allowed. The framers did not discuss the matter one way or another, but they could easily have understood that the “power of impeachment” implicitly includes a jurisdiction over former officials. The text is at best vague and at worst includes former officers. And if the House can impeach them, then the Senate can try them, because the Senate has the power “to try all impeachments.”

Of course, in Trump’s case the impeachment is of a current officer, and so the question is whether the Senate loses jurisdiction if the impeached officer resigns or completes his term before the trial. But if the Senate has the power “to try all impeachments,” then it would seem that it has the power to try all individuals whom the House has impeached and brought to trial regardless of whether that individual still holds public office. The House has frequently chosen to drop its impeachment efforts when an officer resigns; in those cases, it has generally either not voted on an impeachment resolution, not drafted articles of impeachment or not presented articles of impeachment to the Senate. But the fact that the House frequently concludes that its goals have been accomplished by the officer’s resignation does not mean that the House could not have seen the impeachment through all the way to a Senate verdict.

It is true that Article II, Section 4 does specify what happens to specified officers upon conviction in a Senate impeachment trial. This language generally has been read, quite reasonably, to limit the potential scope of the impeachment power. The named offices are the president, vice president and all civil officers of the federal government. This is understood to mean that federal military officers are not subject to the impeachment power, and neither are state government officials nor private individuals. The Constitution could have been written differently, but this extension of the jurisdictional scope of the impeachment power to other individuals would have departed from inherited practice and could be expected to require an explicit textual delegation. According to Section 4, incumbent officers “shall be removed” upon conviction,which is why the Senate does not take a separate vote on whether to remove—instead, removal is automatic and instantaneous upon conviction. Section 4 says nothing about what happens to former officers. And Article I states that the punishment that the Senate can levy after conviction “shall not extend further” than removal and disqualification. So while the Senate has limited punishments it can impose, Article I says nothing about whether Senate trials or punishments are limited to incumbent officers.

What about the purpose of the constitutional impeachment power? Luttig suggests that the sole purpose of the impeachment power is “to remove from office” an individual “before he could further harm the nation from the office he then occupies.”

This phrasing of the claim is, at the very least, awkward. If the whole point of an impeachment is to address the harm that someone can do “from the office he then occupies,” then could a current officer be impeached and tried for his misdeeds in a previous office? Precedent suggests the answer is yes: Circuit Judge Robert W. Archbald was impeached, tried and convicted for corruption in office, and the articles of impeachment included his behavior in his previous position of district court judge. It is true that the House was unable to secure the necessary two-thirds majority for conviction on those articles, and at least some senators expressed doubts “as to his impeachability for offenses committed in an office other than that he held at time of impeachment.” By contrast, the House argued that “it is indeed anomalous if this Congress is powerless to remove a corrupt or unfit Federal judge from office because his corruption or misdemeanor, however vicious or reprehensible, may have occurred during his tenure, in some other judicial office under the Government of the United States prior to his appointment to the particular office from which he is sought to be ousted by impeachment.” Archbald is one of the few federal officers to suffer the penalty of disqualification from future federal office, suggesting that the Senate appreciated the gravity of Archbald’s extended history of misconduct.

If the House had been able to uncover corruption only from Archbald’s days as a district court judge but not from his then-brief tenure as a circuit court judge, it is easy to imagine that two-thirds of the senators would have voted to convict and remove rather than leave a demonstrably corrupt judge on the bench. Even if the Senate had been convinced that such a judge had reformed himself and thus was no longer going to “further harm the nation from the office he then occupies,” impeachment and removal for the past misdeeds might well have been sensible and sufficient.

But set that scenario aside. Is it the case, as Luttig argues, that the sole purpose of impeachment is to remove an officeholder to prevent further harm by that individual in that particular office? Such a framing ignores the additional punishment available to the Senate after conviction—disqualification from future federal office. Removal is wholly sufficient to prevent the “further harm” an incumbent officeholder might do. Disqualification is necessary to ensure that that individual—such as a serially corrupt judge—has no opportunity to do similar harm in the future.

If the Senate could only remove officeholders, then Luttig would have a point. But the Senate can do more than that. Luttig, however, writes off the additional punishment of disqualification as relevant only for those who have been “constitutionally impeached”—that is, those who have been impeached during their time in office and not after it.

But even under Luttig’s own standard, President Trump has been “constitutionally impeached.” He is “at the time of his impeachment” an incumbent president, and the House has now resolved by majority vote to impeach him. Setting aside the question of whether presentation to the Senate is necessary to complete the House’s process of “impeachment,” Trump has by our modern reckoning now been “constitutionally impeached.” At that point, trial, conviction and disqualification would appear to be on the table, even if removal is not.

But removal and disqualification are not the sole purposes of the impeachment clause. The impeachment process is a “grand inquest” in the sense that it is congressional oversight on steroids. The impeachment power gives the first, most democratic branch of the government the ability to scrutinize the actions of individuals in the other branches of government and call them to account for their actions. The House can impeach—that is, lodge allegations—with no fact finding of its own. It is the Senate trial where facts are unavoidably revealed, with the defendant able to challenge those findings and their interpretation. Of course, Congress now routinely uses other tools to engage in oversight of the executive branch, but this historic purpose of the impeachment power is still important.

What’s more, the impeachment process serves as a warning to future officeholders. By clearly and decisively condemning certain actions as intolerable within the American system of government, Congress not only purges the particular malefactor but also attempts to purge the misdeeds from the system and set up a prophylactic to prevent their recurrence. If impeached officials can short-circuit that process of condemnation by resigning—as Secretary of War William Belknap attempted to do in 1876—then the bad actor has it within his power to deprive Congress of the ability to fully make an example of him and send the necessary signals to future officeholders.

And finally, the impeachment process establishes, shores up and preserves important constitutional norms. Impeachments are not the only vehicle for defending constitutional norms, but the impeachment power can be an important and effective vehicle for doing so. There are few constitutional norms so important as respect for the democratic transition of power—and few actions that Congress can take to so emphatically reaffirm that norm as to impeach and convict a political leader who has so flagrantly violated it. Even when an officer is not removed—as Justice Samuel Chase and President Andrew Johnson were not, for example—the House impeachment and the Senate trial were important vehicles for Congress to deliberate on and construct new constitutional understandings. Understanding the impeachment power as focused only on the fate of the political career of a single individual risks erasing this historical experience and setting aside an important tool in the constitutional toolkit.

The claim that the Senate can hold an impeachment trial for a former president is not obviously wrong. It is at most a difficult question, and one that has historical precedent behind it. Nonetheless, Luttig asserts that “only the Supreme Court can answer the question of whether Congress can impeach a president who has left office prior to its attempted impeachment of him.”

Setting aside the apparent confusion of impeachment by the House with a Senate trial on impeachment charges in the Senate, it is not at all evident why “only the Supreme Court” can answer such a question. Traditionally, it was the Senate as the constitutionally designated court of impeachment that has had the final say over constitutional questions regarding the impeachment power. To get to Luttig’s result, the Supreme Court would have to conclude that, even on close constitutional questions relating to the impeachment power, the Senate as the constitutional court of impeachment is an inferior tribunal to the Supreme Court. The court would run the risk of upending the constitutional system by claiming judicial supremacy over one component of the most awesome and delicate authority granted to Congress. As I’ve written elsewhere:

The impeachment power, like any other constitutional power, can be abused. The Senate sits in judgment of whether the House has misused its sole power to impeach federal officers. The people sit in judgment of whether the House and the Senate together have properly wielded this most formidable constitutional weapon. I know no safe depository of the ultimate powers of the society but the people themselves.

Judge Luttig is perhaps the most prominent voice giving support to the view that a former president cannot be put on trial in the Senate for high crimes and misdemeanors. His voice will carry weight with the senators. It might not be enough to persuade a majority of senators to dismiss the case outright, but it might well be enough to prevent the necessary two-thirds majority for conviction—and history suggests that this is a real risk. I do not believe his argument can bear that weight

Keith E. Whittington is the William Nelson Cromwell Professor of Politics at Princeton University. He teaches and writes about American constitutional theory and development, federalism, judicial politics, and the presidency. He is the author most recently of "Speak Freely: Why Universities Must Defend Free Speech."

Jan. 13

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washington post logoWashington Post, Live Updates: House poised to impeach Trump for ‘incitement of insurrection,’ John Wagner, Jan. 13, 2021. Democratic effort to impeach Trump a second time takes dramatic turn. A lone Black officer faced down a mob at the Capitol. Meet Eugene Goodman; Analysis: How experts define the deadly mob attack at the U.S. Capitol; Pelosi calls for Trump’s immediate removal, promotes Cheney’s support for impeachment

The House is poised to impeach President Trump for a second time as it meets Wednesday to consider an article charging him with “incitement of insurrection” for his role in last week’s takeover of the Capitol by a violent pro-Trump mob. At least several Republicans plan to support the resolution.

An hour before the House was scheduled to convene, House Speaker Nancy Pelosi (D-Calif.) went on Twitter to call for Trump’s immediate removal and to promote the position of Rep. Liz Cheney (Wyo.), the No. 3 Republican in the chamber, who supports impeachment.

“Donald Trump’s incitement of a deadly insurrection against the U.S. Capitol is without precedent in our nation’s history and an egregious violation of his oath of office," Pelosi tweeted. “Fulfilling our oath to defend our Constitution requires that we act to remove him from office immediately.”

She attached a statement made by Cheney on Tuesday saying, “The president of the United States summoned this mob, assembled the mob, and lit the flame of attack.”

ny times logoNew York Times, Pence Reached His Limit With Trump. It Wasn’t Pretty, Peter Baker, Maggie Haberman and Annie Karni, Jan. 13, 2021 (print ed.). After four years of tongue-biting silence, Vice President Mike Pence would not yield to President Trump’s intense pressure to overturn the election.

For Vice President Mike Pence, the moment of truth had arrived. After three years and 11 months of navigating the treacherous waters of President Trump’s ego, after all the tongue-biting, pride-swallowing moments where he employed strategic silence or florid flattery to stay in his boss’s good graces, there he was being cursed by the president.

Mr. Trump was enraged that Mr. Pence was refusing to try to overturn the election. In a series of meetings, the president had pressed relentlessly, alternately cajoling and browbeating him. Finally, just before Mr. Pence headed to the Capitol to oversee the electoral vote count last Wednesday, Mr. Trump called the vice president’s residence to push one last time.

“You can either go down in history as a patriot,” Mr. Trump told him, according to two people briefed on the conversation, “or you can go down in history as a pussy.”

The blowup between the nation’s two highest elected officials then played out in dramatic fashion as the president publicly excoriated the vice president at an incendiary rally and sent agitated supporters to the Capitol where they stormed the building — some of them chanting “Hang Mike Pence.”

ny times logoNew York Times, Pentagon to Arm National Guard Troops for Inauguration, Helene Cooper and Adam Goldman, Jan. 13, 2021 (print ed.).  About 15,000 members are expected to be deployed in Washington, D.C. Those stationed around the Capitol will carry weapons, officials said.

National Guard troops who are flooding into Washington to secure the Capitol for Inauguration Day will be armed, the Army secretary, Ryan McCarthy, has decided, Defense Department officials said Tuesday.

The armed troops will be responsible for security around the Capitol building complex, the officials said.

As up to 15,000 troops continued to arrive in Washington from all over the country, Defense Department officials had been weighing whether to deploy them with arms. Mr. McCarthy has decided that at the very least those around the Capitol building will carry weapons, said the officials, who confirmed the decision on the condition of anonymity.

Mr. McCarthy’s decision came after a meeting with Speaker Nancy Pelosi, Democrat of California. Ms. Pelosi, according to congressional staff members, demanded that the Pentagon take a more muscular posture after a mob, egged on by President Trump last week, breached the Capitol.

Pentagon officials say they are deeply worried about protests that are planned for the inauguration of President-elect Joseph R. Biden Jr. next week. About 16 groups — some of them saying they will be armed and most of them made up of hard-line supporters of Mr. Trump — have registered to stage protests in Washington, officials said.

One Defense Department official said law enforcement agencies are planning for a range of outcomes, including a worse-case scenario in which people with firearms try to attack dignitaries, “suicide-type aircraft” try to fly into the capital’s restricted airspace and even remote-controlled drones that could be used to attack the crowd.

ny times logoNew York Times, House Votes 223-205 to Call on Pence to Strip Trump of Powers Rejection All but Ensures Impeachment Vote, Staff and wire reports, Jan. 13, 2021 (print ed.). Democrats proceeded with the resolution even after Vice President Mike Pence ruled out the option, and they warned of an impeachment vote on Wednesday. Five House Republicans said they would vote for impeachment. There had “never been a greater betrayal,” Liz Cheney said. Catch up on political news.

Lawmakers adopted a resolution that would compel Vice President Mike Pence to invoke the 25th Amendment after President Trump incited a mob attack on the Capitol last week. In a letter to Speaker Nancy Pelosi earlier in the evening, Mr. Pence rejected the effort.

ny times logoNew York Times, These are the Republicans who said they support impeaching President Trump, John Eligon, Jan. 13, 2021. As the House prepared to move forward with an impeachment proceeding, a small number of Republicans said they support the effort. The vote is set to come exactly one week after the United States Capitol was breached by an angry mob of Trump loyalists.

In 2019, not a single Republican voted in favor of impeachment. House Republican leaders have said they would not formally lobby members of the party against voting to impeach the president this time, and these are the Republicans who have said that they intend to vote for impeachment.

Representative John Katko. Representative John Katko of New York was the first Republican to publicly announce that he would back the impeachment proceedings. A former federal prosecutor, Mr. Katko said he looked at the facts of the siege, which began as lawmakers were working to certify the presidential election results.

“It cannot be ignored that President Trump encouraged this insurrection — both on social media ahead of Jan. 6, and in his speech that day,” Mr. Katko said in a statement. “By deliberately promoting baseless theories suggesting the election was somehow stolen, the president created a combustible environment of misinformation, disenfranchisement, and division. When this manifested in violent acts on Jan. 6, he refused to promptly and forcefully call it off, putting countless lives in danger.”

washington post logoWashington Post, New York City terminates its contracts with Trump’s company, David A. Fahrenthold, Jan. 13, 2021. New York City is terminating its contracts with President Trump’s company to run a carousel, two ice rinks and a golf course in city parks, Mayor Bill de Blasio (D) said Wednesday — calling it a reaction to Trump’s encouragement of a mob that ransacked the U.S. Capitol.

“The President incited a rebellion against the United States government that killed five people and threatened to derail the constitutional transfer of power,” de Blasio said in a written statement. “The City of New York will not be associated with those unforgivable acts in any shape, way or form.”

That decision — which will cut off the Trump Organization from businesses that bring in $17 million per year in revenue — makes New York the latest business partner to cut ties with Trump’s company. Trump still owns his company from the White House, and his actions as president now seem to have made it a pariah, cut off by even longtime partners.

Since Wednesday’s riot at the Capitol, the company has lost two of its banks, its e-commerce vendor and two of its real-estate brokers. The company also lost its chance to host the prestigious PGA Championship golf tournament in 2022, and lost its hopes of hosting another major golf tournament in Scotland.

Jan. 12

ny times logoNew York Times, Supreme Court Revives Abortion-Pill Restriction, Adam Liptak, Jan. 12, 2021. In the Supreme Court’s first ruling on abortion since the arrival of Justice Amy Coney Barrett, the court on Tuesday reinstated a federal requirement that women seeking to end their pregnancies using medications pick up a pill in person from a hospital or medical office.

The court’s brief order was unsigned, and the three more liberal justices dissented. The only member of the majority to offer an explanation was Chief Justice John G. Roberts Jr., who said the ruling was a limited one that deferred to the views of experts.

The question, he wrote, was not whether the requirement imposed “an undue burden on a woman’s right to an abortion as a general matter.” Instead, he wrote, it was whether a federal judge should have second-guessed the Food and Drug Administration’s determination “because of the court’s own evaluation of the impact of the Covid-19 pandemic.”

“Here as in related contexts concerning government responses to the pandemic,” the chief justice wrote, quoting an earlier opinion, “my view is that courts owe significant deference to the politically accountable entities with the ‘background, competence and expertise to assess public health.’”

In dissent, Justice Sonia Sotomayor, joined by Justice Elena Kagan, said the majority was grievously wrong.

“This country’s laws have long singled out abortions for more onerous treatment than other medical procedures that carry similar or greater risks,” Justice Sotomayor wrote. “Like many of those laws, maintaining the F.D.A.’s in-person requirements” for picking up the drug “during the pandemic not only treats abortion exceptionally, it imposes an unnecessary, irrational and unjustifiable undue burden on women seeking to exercise their right to choose.”

She suggested that the next administration should revisit the issue.

“One can only hope that the government will reconsider and exhibit greater care and empathy for women seeking some measure of control over their health and reproductive lives in these unsettling times,” Justice Sotomayor wrote.

Judge Theodore D. Chuang, of the Federal District Court in Maryland, had blocked the requirement in light of the coronavirus pandemic, saying that a needless trip to a medical facility during a health crisis very likely imposed an undue burden on the constitutional right to abortion.

The case concerned a restriction on medication abortions, which are permitted in the first 10 weeks of pregnancy. About 60 percent of abortions performed in those weeks use two drugs rather than surgery.

The American College of Obstetricians and Gynecologists and other groups, all represented by the American Civil Liberties Union, sued to suspend the requirement that women make a trip to obtain the first drug in light of the pandemic. There was no good reason, the groups said, to require a visit when the drug could be delivered or mailed.

Jan. 9

djt nancy pelosi

washington post logoWashington Post, Trump faces mounting demands to leave office or face impeachment, Seung Min Kim, Josh Dawsey, Mike DeBonis and Tom Hamburger, Jan. 9, 2021 (print ed.). President Trump faces mounting pressure for his immediate ouster after he incited Wednesday’s violent siege at the Capitol — an increasingly louder drumbeat chastising his actions that threatens not only to prematurely end his waning tenure but to put him in legal jeopardy once he leaves office.

democratic donkey logoIn Congress, a growing cadre of House Democrats is pushing to rapidly impeach Trump a second time before he is scheduled to leave office on Jan. 20. They are preparing to introduce articles charging him with inciting an insurrection and having “gravely endangered the security of the United States” and its institutions.

In public, Trump has come as close as he is likely to get to admitting he lost the election, acknowledging that there will be a transfer of power and confirming Friday that he will not attend President-elect Joe Biden’s inauguration. But in private, the president has tried to rationalize his actions, saying he wanted only to encourage a large protest that would garner news coverage and rattle members of Congress — not for his supporters to actually storm the Capitol in the worst breach of its security since the War of 1812.

washington post logoWashington Post, Biden stimulus plan includes checks, jobless aid, Jeff Stein, Erica Werner and Mike DeBonis, Jan. 9, 2021 (print ed.). President-elect Joe Biden said Friday he is assembling a multitrillion-dollar relief package that would boost stimulus payments for Americans to $2,000, extend unemployment insurance and send billions of dollars in aid to city and state governments, moving swiftly to address the nation’s deteriorating economic condition and the rampaging pandemic.

joe biden twitterThe package will also include billions of dollars to improve vaccine distribution and tens of millions of dollars for schools, as well as rent forbearance and assistance to small businesses, especially those in low-income communities, Biden said at a news conference in Wilmington, Del.

“We need to provide more immediate relief for families and businesses now,” Biden said.

“The price tag will be high,” he said, adding, “The overwhelming consensus among leading economists left, right and center is that in order to keep the economy from collapsing this year, getting much, much worse, we should be investing significant amounts of money right now.”

Biden said he would lay out the package in more detail next week. It would build on some $4 trillion in economic assistance Congress has already devoted to battling the devastating pandemic, including a $900 billion package President Trump signed into law last month.

ny times logoNew York Times, Live U.S. Political Update: Democrats Lay Groundwork for Impeaching Trump Again, Staff Reports, Jan. 9, 2021. ‘I Want Him Out’: Murkowski Is First G.O.P. Senator to Call for Removal.

House Democrats intend to introduce an article of impeachment on Monday charging President Trump with “willfully inciting violence against the government of the United States.” President-elect Joe Biden prioritizes the economy, saying there is a “a dire, dire need to act now.”

  • Furious Democrats, backed by a handful of Republicans, pressured President Trump to leave office after a violent mob attack on the Capitol this week.
  • Senator Lisa Murkowski suggested she may leave the Republican Party if it continued to align itself with Mr. Trump.
  • But the president struck a defiant tone. Behind closed doors, he made clear that he would not resign. Here’s the latest from Washington.
  • Biden pledges action to address the economy and the pandemic.
  • Pelosi asked the Pentagon about preventing Trump from using the nuclear codes.
  • A judge has blocked Trump’s sweeping restrictions on asylum applications.
  • Trump's suspension from Twitter caps an online revolt against him.

washington post logoWashington Post, McConnell memo outlines how Senate would conduct second trial for Trump if House impeaches, Seung Min Kim, Jan. 9, 2021 (print ed.). Based on the Senate schedule and timelines, the proceedings would occur after the president leaves office.

Palmer Report, Opinion: Donald Trump held Senators hostage in the Capitol while calling them and demanding the election be overturned, Bill Palmer, right, Jan. 9, bill palmer2021 (12:03 a.m.). We all saw Donald Trump incite the domestic terrorist attack on the United States Capitol Building. And it’s since been revealed that Trump refused to sign off on the mayor’s request that the DC National Guard be sent in to retake the Capitol. But now things have taken an even darker turn.

bill palmer report logo headerCNN is reporting that while the Capitol was under siege by Trump-terrorists, and while Trump was refusing to sign off on sending the National Guard, he called at least one Senator on the phone and demanded that the election results be overturned. CNN is reporting that Trump tried to call Republican Senator Tommy Tuberville and instead reached Republican Senator Mike Lee, making his demand.

This means that if the timeline of events as we understand it is indeed accurate, Donald Trump was holding members of Congress hostage in the basement while calling them and making demands. This is way beyond merely inciting the attack, or even refusing to do anything to put it down. This is some kind of ransom situation. Trump allowed the Vice President, every Senator, and every House member to remain held hostage and in danger of violence, while he made demands. This is one of the ugliest crimes in American history – and Trump will never get out of prison.

washington post logoWashington Post, Twitter permanently suspends Trump’s account, Nitasha Tiku and Tony Romm, Jan. 9, 2021 (print ed.). “Despite our efforts to serve the public conversation, as Trump’s megaphone, we helped fuel the deadly events of January 6th,” the employees wrote.

Hundreds of Twitter employees demanded in a letter written this week that the company’s leaders permanently suspend Donald Trump’s Twitter account because of his actions surrounding the storming of the U.S. Capitol Tuesday, calling the company’s response insufficient.

twitter bird CustomIn an internal letter addressed to chief executive Jack Dorsey and his top executives viewed by The Washington Post, roughly 350 Twitter employees asked for a clear account of the company’s decision-making process regarding the President’s tweets the day that a pro-Trump mob breached the U.S. Capitol. Employees also requested an investigation into the past several years of corporate actions that led to Twitter’s role in the insurrection.

donald trump twitter“Despite our efforts to serve the public conversation, as Trump’s megaphone, we helped fuel the deadly events of January 6th,” the employees wrote. “We request an investigation into how our public policy decisions led to the amplification of serious anti-democratic threats. We must learn from our mistakes in order to avoid causing future harm.”

“We play an unprecedented role in civil society and the world’s eyes are upon us. Our decisions this week will cement our place in history, for better or worse,” the added.

In a statement, Twitter spokesperson Brandon Borrman wrote, “Twitter encourages an open dialogue between our leadership and employees, and we welcome our employees expressing their thoughts and concerns in whichever manner feels right to them.”

Twitter on Wednesday initially labeled Trump’s tweets about the election as disputed. But a subsequent video from the president — calling for calm while continuing to peddle disinformation — prompted the company to step up its enforcement actions.

Twitter ultimately locked the president out of his account for the first time, requiring him to delete his offending tweets — then wait 12 hours — in order to regain access. That came Thursday morning, and Trump issued his first public comments on the site later that night. Twitter said it would suspend Trump permanently if he continues to break its rules, putting users at risk.

washington post logoWashington Post, Trump pressured Ga. elections investigator in a separate call that experts say could amount to obstruction, Amy Gardner, Jan. 9, 2021
More than a week before he urged the Georgia secretary of state to overturn the election results, the president urged the state’s chief elections fraud investigator to “find the fraud.

 ali alexander resized greg palast

"Stop the Steal" Republican operative Ali Alexander, top right, is shown with two others in revelations excerpted below by investigative reporter Greg Palast.

GregPalast.com, Investigation: Why did the Georgia GOP Team up with a riot instigator? Greg Palast, Jan. 8-9, 2021. “WE’LL LIGHT THE WHOLE SH*T ON FIRE!”

The star of the GOP’s get-out-the-vote door-knocking program in the Georgia Senate run-off, standing next to Alex Jones, was blasting his threat through a georgia map 2megaphone in front of the Governor’s home. “We’ll light the whole sh*t on fire!”GOP Operative: “We’ll light the whole sh*t on fire!”

Ali Alexander’s threat in December would become all too real when he repeated his performance on January 6 in Washington, DC.

In the U.S. Capitol that day, looking over the scene of screams, tear gas, and mayhem, Alexander said, “I warned you this would happen.”

Yes, he did. Nevertheless, the Georgia Republican Party’s Metro Atlanta Field Director Kevin Mason was more than happy to team up with Alexander. With his huge reach within the Alt-Right, Alexander could bring in a swarm of volunteers for the door-knocking campaign they desperately needed to hold back the looming Democratic victory in the US Senate run-offs.

republican elephant logoThe far-right celebrity was the magnet to draw scores of young enthusiasts to a January 3 training session at the DoubleTree Hotel in Roswell, an Atlanta suburb. The Palast Investigative Fund’s photojournalist, Zach D. Roberts, a specialist in white-fringe violence who’d been tracking Alexander’s pitch for mayhem across the nation, signed up.

Roberts, who joined up through Alexander’s website, StopTheSteal.US, was quite surprised to receive instructions, not from the right-wing group, but from Daniel George of the National Republican Senate Committee.

Why would the GOP team up with Alexander, a leader of the Stop the Steal extremists, especially after his well-broadcast warning of violence? The threat was not out of character. There are widely circulated films of Alexander with Proud Boys founder Gavin McInnes. And there is a video chat with Alexander yucking it up with a right-wing jokester holding up a giant flag with a Nazi Swastika flag.

That is, if “Alexander” is his real name. He adopted it after his reported conviction for a felony crime under the name “Ali Akbar.” [See 2012 column excerpted immediately below.]

Alexander is a shapeshifter, sometimes the eye-swiveling crazy, sometimes the dapper guest for Alt-Right podcasts. We cannot link to his most incendiary outlets such as WildProtest.com because they’ve been taken down for inciting violence.

In Georgia, with Alex Jones and Nick Fuentes, a known white nationalist, Alexander hid nothing of his hopes for Washington on January 6. “Either they take Trump, prove that they won or they’re not going to hand them back the country again. We’ll light the whole sh*t on fire!”

To fire up its base, the GOP is apparently willing to cavort with the violence-threatening fringe. The Grand Old Party dismissed Alexander’s warnings. And they also forgot John Kennedy’s warning that “Those who ride the tail of the tiger soon end up inside.”

greg palast logo

Greg Palast (Rolling Stone, Guardian, BBC), shown above, is the author of The New York Times bestsellers, "The Best Democracy Money Can Buy" and "Billionaires & Ballot Bandits," out as major motion non-fiction movie: "The Best Democracy Money Can Buy: The Case of the Stolen Election," available on Amazon and Amazon Prime.

 ali akbar mugshot

Crooks and Liars, The National Bloggers Club And Their Super PAC Friends, Matt Osborne, Co-authored with Alex Brant-Zawadzki and Bill Schmalfeldt, Research assistance by Melissa Brewer, Sept. 12, 2012. Ali Akbar, now President of the National Bloggers Club, is one of the conservative blogosphere's most infamous characters. He began his campaign of notoriety with a crime spree in 2006, blazing a six-year trail of fraud. That's him up there, in the mug shots.

Palmer Report, Opinion: Donald Trump just screwed himself even worse than you think, Bill Palmer, Jan. 9, 2021. If Donald Trump had behaved during the transition period, he probably could have convinced the judge in his New York criminal trial to let him serve house arrest at Mar-a-Lago, perhaps even let him out on bail completely, while awaiting trial. But now that he’s a documented domestic terrorist threat, the odds of his pretrial incarceration just went up.

bill palmer report logo headerI’d like to thank Donald Trump for doing more to destroy Trumpism this week than I ever could have done on my own. I’d like believe i’ve certainly put a dent in Trump these past four years, but he just took a sledgehammer to his own cause.

Donald Trump’s subreddit has just been banned from Reddit. Do you know how badly you have to screw up in life to get banned from Reddit? YouTube has permanently banned Steve Bannon.

Palmer Report, Opinion: Donald Trump just got kicked off Twitter for the THIRD time tonight, Bill Palmer, Jan. 8, 2021. Shortly after Donald Trump got permanently banned from Twitter tonight, he tried rogue tweeting from the @POTUS account, which is supposed to be for government use. That only lasted about thirty seconds before Twitter cracked down, deleting his rant. Now it’s happened again on another account.

bill palmer report logo headerTwitter has now permanently suspended Donald Trump’s official campaign Twitter account @TeamTrump after he and/or his handlers used it to post the same rant that Twitter had just removed from the @POTUS account. That’s right, Trump has now been kicked off Twitter for the third time tonight.

At this rate Donald Trump’s next move will be to create a new account called “Ronald Trump” and hope that Twitter doesn’t figure out it’s also him. Trump is the dumbest villain of all time, and he’s getting dumber as the night goes on.

washington post logoWashington Post, Voting machine firm Dominion sues pro-Trump lawyer Sidney Powell, seeking more than $1.3 billion in defamation claim, Emma Brown, Jan. 9, 2021 (print ed.). Dominion Voting Systems on Friday filed a defamation lawsuit against lawyer Sidney Powell, demanding more than $1.3 billion in damages for havoc it says Powell has caused by spreading “wild” and “demonstrably false” allegations, including that Dominion played a central role in a fantastical scheme to steal the 2020 election from President Trump.

For weeks, Powell has claimed that Dominion was established with communist money in Venezuela to enable ballot-stuffing and other vote manipulation, and that those abilities were harnessed to rig the election for former vice president Joe Biden.

dominion voting systemsIn a 124-page complaint filed in the U.S. District Court for the District of Columbia, Dominion said its reputation and resale value have been deeply damaged by a “viral disinformation campaign” that Powell mounted “to financially enrich herself, to raise her public profile, and to ingratiate herself to Donald Trump.” The defendants named in the lawsuit include Powell, her law firm and Defending the Republic, the organization she set up to solicit donations to support her election-related litigation.

In an interview, Dominion CEO John Poulos said the lawsuit aims to clear his company’s name through a full airing of the facts about the 2020 election.

lin wood gage skidmorePoulos said he would like the case to go to trial rather than settle. “We feel that it’s important for the entire electoral process,” he said. “The allegations, I know they were lobbed against us . . . but the impacts go so far beyond us.”

Powell did not immediately respond to a request for comment. L. Lin Wood, left, a lawyer who has worked alongside Powell on post-election lawsuits and who says he is representating her in connection to defamation matters, called the lawsuit an attempt “to censor speech or try to intimidate people from telling the truth.”

 

Deaths From Pro-Trump Riot

brian sicknick

ny times logoNew York Times, He Dreamed of Being a Police Officer, Then Was Killed by a Pro-Trump Mob, Zolan Kanno-Youngs and Tracey Tully, Jan. 9, 2021 (print ed.). The death of Brian Sicknick, above, a veteran and experienced officer, amplified the tragedy of the riots and undermined President Trump’s pro-police claims.

Brian Sicknick followed his Air National Guard unit to Saudi Arabia, Kyrgyzstan and a military base in his home state of New Jersey, all in the hopes of one day wearing a police uniform. It was a wish fulfilled more than 10 years ago when he joined the police department tasked with protecting the U.S. Capitol.

Then on Wednesday, pro-Trump rioters attacked that citadel of democracy, overpowered Mr. Sicknick, 42, and struck him in the head with a fire extinguisher, according to two law enforcement officials. With a bloody gash in his head, Mr. Sicknick was rushed to the hospital and placed on life support. He died on Thursday evening.

“Brian is a hero,” his brother Ken Sicknick said. “That is what we would like people to remember.”

The death of Officer Sicknick amplified the nation’s grief in the wake of the shocking attack on the Capitol by rioters, inflamed by President Trump’s calls to stop Congress from counting electoral votes and officially declaring Joseph R. Biden Jr. the winner of November’s election. One of those rioters, Ashli Babbitt, also died in the melee, shot by a police officer as she tried to push her way into the heavily protected Speaker’s Lobby, just outside the House chamber.

In all, five have died since the riot began, though three of them were not killed by hostile action. But the beating of an officer brought waves of condolences from lawmakers in both parties still reeling from the event. It also exposed one of the many contradictions of the Trump presidency in his final weeks in the Oval Office. A president who campaigned as a “law and order” candidate, boasting about his relationships with police unions and demonizing those protesting racist policing, incited a riot that led to the death of a member of the law enforcement community.

“It’s a bunch of” nonsense, William J. Bratton, the former New York City police commissioner, said of Mr. Trump’s pledges to the police, though he used a stronger word. “It was a misappropriation of the term ‘law and order.’”

Justice Department officials said during a news conference on Friday that they were investigating the circumstances of Mr. Sicknick’s death, but would not say whether it was a federal murder investigation. One official said that “felony murder is always in play,” but that investigators needed to complete their work.

washington post logoWashington Post, U.S. Capitol police officer dies after engaging rioters, Peter Hermann, Jan. 9, 2021 (print ed.). Officer Brian D. Sicknick, below right, brian sicknickcollapsed after returning to his division office and was rushed to a hospital, where officials said he died Thursday night.

On Friday, House Speaker Nancy Pelosi (D-Calif.) ordered flags at the U.S. Capitol to be flown at half-staff.

“The violent and deadly act of insurrection targeting the Capitol, our temple of American Democracy, and its workers was a profound tragedy and stain on our nation’s history. But because of the heroism of our first responders and the determination of the Congress, we were not, and we will never be, diverted from our duty to the Constitution and the American people,” Pelosi said in a statement.

capitol ties

An as-yet unidentified rioter, center, heavily disguised, invades the U.S. Capitol as part of the pro-Trump "Stop the Steal" protest carrying plastic "ties," which are normally used by law enforcers to bind the wrists of suspects but which are used also by terrorists to subdue hostage victims.

washington post logoWashington Post, FBI focuses on whether some rioters intended to harm lawmakers or take hostages, Devlin Barrett, Spencer S. Hsu and Matt Zapotosky, Jan. 9, 2021 (print ed.). FBI agents are trying to determine whether some who stormed the U.S. Capitol on Wednesday intended to do more than cause havoc and disrupt the certification of President-elect Joe Biden’s victory, and they are sifting through evidence to see whether anyone wanted to kill or capture lawmakers or their staffers, according to people familiar with the investigation.

Dozens have been arrested, and Friday, officials announced charges against an Arkansas man photographed in House Speaker Nancy Pelosi’s office chair with a foot on her desk. But investigators also are working to determine the motivations and larger goals, if any, of those who had weapons or other gear suggesting they planned to do physical harm.

FBI logoSome rioters, for instance, were photographed carrying zip ties, a plastic version of handcuffs, and one man was arrested allegedly carrying a pistol on the Capitol grounds.

“We’re not looking at this as a grand conspiracy, but we are interested in learning what people would do with things like zip ties,” said a law enforcement official, who, like others, spoke on the condition of anonymity to discuss the investigation.

No photos or videos that have surfaced so far suggest any of the individuals with zip ties tried to take hostages. One possibility being pursued by investigators is that some who burst into the building may be current or former law enforcement officers, or current and former military personnel, people familiar with the investigation said.

Some who participated in the larger pro-Trump protest this week do work in law enforcement.

Chris West, the sheriff of Canadian County in Oklahoma, for example, held a news conference Friday to dispute that he was the person pictured on social media who claimed he was inside the Capitol, according to a Fox affiliate there. West told reporters that though he did come to rally in D.C. as an “individual” and Trump supporter, he never set foot in the Capitol building and thought he was walking from Liberty Square in the direction of the Capitol when the violence began.

A sheriff in Bexar County, Tex., meanwhile, told reporters that one of his lieutenants ­— Roxanne Mathai ­— was under investigation after her Facebook posts appeared to show she was at the Capitol, according to a local ABC station. Mathai has not been charged with any wrongdoing.

rnc logoMany of the initial charges have been for unlawful entry, but authorities also found suspected pipe bombs outside the headquarters of the Democratic National Committee and the Republican National Committee, and they arrested the owner of a truck they said was spotted nearby with 11 molotov cocktails inside. The FBI is still searching for the person who left the suspected pipe bombs.

Adding to the investigation’s urgency, Twitter on Friday noted that plans for future armed protests have begun circulating online, including a proposed second attack on the U.S. Capitol and assaults on state government buildings Jan. 17.

Officials cautioned that there may be a variety of motives among those who broke into Congress, and they said that a key part of their investigation is determining whether any individuals or groups had planned in advance or were coordinating in the moment to commit violence against individual politicians. Others may simply have been caught up in the moment and committed rash, unplanned crimes, officials said.

Jan. 7

washington post logoWashington Post, Biden to nominate Merrick Garland, Obama’s last Supreme Court nominee, for attorney general, Matt Zapotosky, Devlin Barrett and Ann E. Marimow, Jan. 7, 2021 (print ed.). President-elect Joe Biden plans to nominate Merrick B. Garland, a Democratic casualty of the bitter partisan divide in Washington over court nominees, to become the next attorney general, according to people familiar with the decision.

merrick garlandGarland, 68, right, serves as a judge on the federal appeals court in the District. He is best known for being nominated to the Supreme Court in 2016 by President Barack Obama — a nomination that went nowhere because Senate Republicans refused to give him a hearing. The opening on the high court was eventually filled the following year by President Trump’s choice, Neil M. Gorsuch.

Biden’s transition team did not immediately respond to a request for comment. The intended nomination was first reported Wednesday by Politico.

Who Joe Biden is picking to fill his White House and Cabinet

Justice Department log circularMany Democrats still think of Garland as a living example of Republican double-standards when it comes to the courts and the law, though some Biden advisers have come to view him as well-suited to restore norms of nonpolitical decision-making at the Justice Department, given his track record as a judge and a former senior official at the department, according to people familiar with the decision.

To some in Biden’s circle, Garland seems like the best choice to restore the Justice Department’s credibility, which eroded under Trump. He enjoys a reputation as a unifying, moderating force on the appeals court, and some Democratic advisers said they view his selection as a signal to congressional Republicans that the department will operate in an evenhanded fashion in the Biden administration.

Karen L. Dunn, a former prosecutor who once clerked for Garland, called him “the perfect choice for this job. He will restore independence and integrity to the Justice Department, be the people’s lawyer, not the president’s lawyer, and will come in with the respect of the career public servant who advance the cause of justice every day.”

kristen clarkeLawyers’ Committee for Civil Rights Under Law, Kristen Clarke’s Nomination as Assistant Attorney General for Civil Rights, Staff report, Jan. 7, 2021. President-elect Joe Biden announced his intent to nominate Kristen Clarke, right, the president and executive director of the Lawyers’ Committee for Civil Rights Under Law to be the nation’s nineteenth Assistant Attorney General for Civil Rights.

The Civil Rights Division of the U.S. Department of Justice enforces the nation’s civil rights laws while ensuring equal justice under law for all Americans. The President-elect will announce the appointment, along with the appointment of his choice for Attorney General at an event in Delaware later today.

Clarke’s career and leadership have proved that she is committed to seeking truth and justice for all Americans through our system of laws. She formerly served as the head of the Civil Rights Bureau for the New York State Attorney General’s Office, spent several years at the NAACP Legal Defense and Educational Fund and worked at the U.S. Department of Justice’s Civil Rights Division.

Jan. 2

julian assange stella morris son gabriel righ max belmarsh prison irish examiner com

Stella Moris and son Gabriel, right, and Max leave Belmarsh prison after visiting her partner and their father, Julian Assange. His two children could lose their father for the rest of their lives [Source: irishexaminer.com].

Covert Action Magazine, Opinion: Upcoming Ruling in Assange Trial Threatens More Than Just Freedom of the Press, Steve Brown, Jan. 2, 2021. Although important legal principles are at stake in the extradition trial of Julian Assange, below right in a file photo, for which a ruling will be handed down on January 4, it should not be forgotten that there are important human issues at stake as well.

One such issue is Assange’s health, which has progressively worsened under what seems to be cruel and even sadistic maltreatment by the British government, including the refusal of appropriate medical care and confining him in his cell for 23 hours a day, seven days a week.

The other is that, if the Judge’s ruling is adverse, Julian’s two children may never see their father again.

julian assange facts wikileaks CustomMany stories have been written about the legal issues in Julian’s case, and the chilling effect that his extradition to the U.S.  — where he will almost certainly be imprisoned for life — would have on journalists around the world who seek to expose the lies and crimes committed by their own governments.

Most of those stories present Julian, primarily, as a symbol, a hero to his principles, and an ominous example in how far tyrannical governments and corrupt politicians will go to keep their citizens ignorant and submissive.

But Julian is more than a symbol. He is also a father, a husband-to-be (even if he may have to be married in prison) and, most importantly, a human being —o ne who, as the world watches in horror and shame, is being subjected to calculated assaults on his physical and mental health in hopes that he will quickly die and spare the British and American governments the embarrassment of having to deal with him.

For nearly three years Assange and his partner, Stella Moris, had successfully kept their personal relationship and the existence of their two children a secret. Moris only revealed it (on April 11) because “Julian’s poor physical health puts him at serious risk, like many other vulnerable people, and I don’t believe he will survive infection with coronavirus” — which had been spreading rapidly through the British prison system, especially at Belmarsh, the high security prison in which Assange is being held.

 

December

Dec. 31 michael flynn djt

President Trump pardoned former National Security Advisor and 2016 campaign advisor Michael Flynn, left, this fall from multiple felonies after Flynn pleaded guilty.

Howe on the Court via SCOTUSblog, Analysis: The Supreme Court and the president’s pardon power, Amy Howe, below right, Dec. 31, 2020. The Constitution gives the amy howepresident the power “to grant Reprieves and Pardons for Offenses against the United States, except in Cases of impeachment.”

In the days before Christmas, President Donald Trump used this power to pardon or commute the sentences of over 40 people, including Paul Manafort, Trump’s former campaign manager; Charles Kushner, the father of Trump’s son-in-law and adviser, Jared Kushner; Roger Stone, who was convicted by Special Counsel Robert Mueller of obstruction of justice and other crimes; and four men who were convicted of killing Iraqi civilians while working as contractors for the private security firm Blackwater.

With just under three weeks remaining in Trump’s term, there could be more pardons on the horizon – and Trump has asserted that he has the “absolute right” to pardon himself.

The Supreme Court has made clear that, subject to the exception for impeachment, the president’s power to grant pardons is “unlimited,” with virtually no oversight or limiting role for Congress. In Ex parte Garland, which involved President Andrew Johnson’s pardon of a lawyer who had served in the legislature of the Confederacy, the court indicated that the president’s pardon power covers all federal offenses. The president can issue a pardon at any point after a crime is committed and before, during or after criminal proceedings have taken place.

The president cannot, however, pardon someone for future crimes. A pardon covers both the offender’s guilt for the crime and the sentence for that crime. When there is a full pardon, the Supreme Court has explained, it is as if the defendant never committed the crime.

SCOTUSblog, The lives they lived and the court they shaped: Remembering those we lost in 2020, James Romoser, Dec. 31, 2020. The lead plaintiffs in three landmark civil rights cases. A government lawyer who argued at the Supreme Court more than anyone else in the 20th century. A chief justice’s right-hand man. A trailblazing feminist who became a transformative justice.

These were among the people we lost in a year that was so defined by death. As the year comes to a close, SCOTUSblog looks back at some of the individuals who died in 2020 after living lives that brought them – at different times and for different reasons – to the Supreme Court of the United States.

Some worked behind the scenes. A few attained modest fame. One became “notorious.” All left an imprint on the court or the law.

  • Bruce Carver Boynton
  • ruth bader ginsburg scotusMark Cannon
  • Bernard Sol Cohen
  • Drew Saunders Days III
  • Ruth Bader Ginsburg, right
  • Timothy Andrew O’Brien
  • Aimee Stephens
  • Alexander Louis Stevas
  • Darius Leander Swann
  • Lawrence Gerald Wallace
  • Ralph Karl Winter, Jr.

Howe on the Court via SCOTUSblog, Analysis: In year-end report, Roberts praises “unsung heroes” of the pandemic, Amy Howe, right, Dec. 31, 2020. Chief amy howeJustice John Roberts issued his annual year-end report on Thursday, and the theme – perhaps unsurprisingly – was the coronavirus pandemic. Roberts paid tribute to everyone in the federal court system and the federal government who allowed the courts to carry out their work safely, but he singled out what he called the “‘first to fight’ in the judicial family – the trial courts and their staff.”

Roberts began his report, as he often does, with a historical reference: the outbreak of influenza that the first chief justice, John Jay, encountered when he traveled to New York to hear cases in the lower courts. (In a trademark display of Roberts’ wry humor, he noted that two justices who skipped the Supreme Court’s first session received a more distant assignment, requiring 1,800 miles of travel – “providing,” he wrote, “yet another lesson in what happens when you miss a meeting.”)

john roberts oRoberts, left, discussed the Supreme Court’s response to the pandemic only briefly, noting that the court held “oral argument by teleconference for the first time” and managed “to stay current in our work.” The federal courts of appeals, Roberts continued, “have responded with similar considered flexibility,” as have the state courts, “who are responsible for the vast bulk of judicial proceedings.”

But it was the federal trial courts that “faced the greatest challenge,” Roberts emphasized, and – in his view – they responded. Roberts cited the example of bankruptcy courts, with their often-complicated cases that “can involve 100 participating attorneys.” “Much of their work is not glamorous,” Roberts wrote, “but it is essential, and it got done.” Jury trials have resumed, Roberts noted, after modifications to courtrooms to make them safer for everyone involved. Roberts was pleased that members of the public continue to report for jury duty despite the pandemic.

Roberts lauded the judicial branch’s creativity in responding to other aspects of the pandemic – holding, for example, drive-through and outdoor naturalization ceremonies.

Roberts concluded by making clear that he did not want “to minimize the hardships and suffering caused by the pandemic. Like others throughout the country, judiciary employees have contended with illness and loss. My thoughts,” Roberts said, “are with them.”

Roberts’ message made no mention of the other topic that has dominated the headlines in 2020: the presidential election. Although Roberts is a lifelong Republican, both he and the court have been frequent targets of President Donald Trump’s ire. Roberts began 2020 presiding over Trump’s impeachment trial, and he ended the year being vilified on Twitter by Trump allies hurling wild attacks. Even if Roberts didn’t say so, he is no doubt looking forward to a new and quieter year.

 joe biden

ny times logoNew York Times, Opinion: My Joe Biden Story, Linda Greenhouse, right, Dec. 31, 2020 (print ed.). In a career as a journalist, I had never encountered a linda greenhouse thumb Custompolitician like him.

As Ben Smith, the media columnist for The Times, suggested a few weeks ago, pretty much every journalist who passed through Washington, D.C., during the past half century knows President-elect Joe Biden and has a story to tell. I’d like to end this strange year, and welcome the new one and the new president, by telling mine.

I met then-Senator Biden in the mid-1980s, when he was a member of the Judiciary Committee and I was covering the occasional judicial confirmation. By 1987, he was chairman of the committee, after the Democrats retook the Senate in the 1986 midterms. That summer, President Ronald Reagan nominated Judge Robert Bork to the Supreme Court.

Dec. 29

ny times logoNew York Times, Opinion: Will Pence Do the Right Thing? Neal K. Katyal, right, and John Monsky, Dec. 29, 2020. On Jan. 6, neal katyal othe vice president will preside as Congress counts the Electoral College’s votes. Let’s hope that he doesn’t do the unthinkable — and unconstitutional.

President Trump recently tweeted that “the ‘Justice’ Department and FBI have done nothing about the 2020 Presidential Election Voter Fraud,” followed by these more ominous lines: “Never give up. See everyone in D.C. on January 6th.”

The unmistakable reference is to the day Congress will count the Electoral College’s votes, with Vice President Mike Pence presiding. Mr. Trump is leaning on the vice president and congressional allies to invalidate the mike pence leftNovember election by throwing out duly certified votes for Joe Biden.

Mr. Pence, shown in a file photo thus far has not said he would do anything like that, but his language is worrisome. Last week, he said: “We’re going to keep fighting until every legal vote is counted. We’re going to win Georgia, we’re going to save America,” as a crowd screamed, “Stop the steal.”

And some Republicans won’t let up. On Monday, Representative Louie Gohmert of Texas and other politicians filed a frivolous lawsuit, which has multiple fatal flaws in both form and substance, in an attempt to force the vice president to appoint pro-Trump electors.

Mr. Katyal, a law professor at Georgetown, is a former acting solicitor general of the United States. Mr. Monsky is the creator of the American History Unbound Series of multimedia productions that covers watershed moments in American history and a board member of the New-York Historical Society.

Dec. 28

ny times logoNew York Times, A Cheerleader’s Vulgar Message Prompts a First Amendment Showdown, Adam Liptak, right, Dec. 28, 2020. A Pennsylvania school district adam liptakhas asked the Supreme Court to rule on whether students may be disciplined for what they say on social media. The Supreme Court next month will consider whether to hear the case of Mahanoy Area School District v. B.L., involving a student’s freedom of speech while off school grounds.

It was a Saturday in the spring of 2017, and a ninth-grade student in Pennsylvania was having a bad day. She had just learned that she had failed to make the varsity cheerleading squad and would remain on junior varsity.

The student expressed her frustration on social media, sending a message on Snapchat to about 250 friends. The message included an image of the student and a friend with their middle fingers raised, along with text expressing a similar sentiment. Using a curse word four times, the student expressed her dissatisfaction with “school,” “softball,” “cheer” and “everything.”

Though Snapchat messages are ephemeral by design, another student took a screenshot of this one and showed it to her mother, a coach. The school suspended the student from cheerleading for a year, saying the punishment was needed to “avoid chaos” and maintain a “teamlike environment.”

The student sued the school district, winning a sweeping victory in the United States Court of Appeals for the Third Circuit, in Philadelphia. The court said the First Amendment did not allow public schools to punish students for speech outside school grounds.

Next month, at its first private conference after the holiday break, the Supreme Court will consider whether to hear the case, Mahanoy Area School District v. B.L., No. 20-255. The Third Circuit’s ruling is in tension with decisions from several other courts, and such splits often invite Supreme Court review.

In urging the justices to hear the case, the school district said administrators around the nation needed a definitive ruling from the Supreme Court on their power to discipline students for what they say away from school. “The question presented recurs constantly and has become even more urgent as Covid-19 has forced schools to operate online,” a brief for the school district said. “Only this court can resolve this threshold First Amendment question bedeviling the nation’s nearly 100,000 public schools.”

Justin Driver, a law professor at Yale and the author of The Schoolhouse Gate: Public Education, the Supreme Court and the Battle for the American Mind” agreed with the school district, to a point.

“It is difficult to exaggerate the stakes of this constitutional question,” he said. But he added that schools had no business telling students what they could say when they were not in school.

“In the modern era, a tremendous percentage of minors’ speech occurs off campus but online,” he said. “Judicial decisions that permit schools to regulate off-campus speech that criticizes public schools are antithetical to the First Amendment. Such decisions empower schools to reach into any student’s home and declare critical statements verboten, something that should deeply alarm all Americans.”

The key precedent is from a different era. In 1969, in Tinker v. Des Moines Independent Community School District, the Supreme Court allowed students to wear black armbands to protest the Vietnam War but said disruptive speech, at least on school grounds, could be punished.

Dec. 27

Palmer Report, Opinion: Donald Trump’s criminal culpability, Robert Harrington, Dec. 27, 2020. In all of Donald Trump’s pardons and commutations to date, sixty of the sixty-five have a personal connection. While the Constitution places no barrier on pardons or commutations and no standard by which they must adhere, it is nevertheless so very, er, Trumpian — for lack of a better word — that most of Donald Trump’s pardons and commutations could be construed as having a corrupt purpose. Cory Booker puts it even more plainly in his recent tweet: “A pardon is supposed to be an instrument of justice — not a tool of corruption.”

bill palmer report logo headerIn a recent interview with CBS, former fixer and hatchet man for Donald Trump Michael Cohen — who is currently serving an in-home three year sentence for fraud and lying to Congress during the Russia probe — gave his opinion about Trump’s perceived abuse of the presidential pardon. Cohen also used the opportunity to plug his book, “Disloyal,” which became a New York Times bestseller, and to plug his upcoming book which will, no doubt, also be a bestseller.

The difference between what Cohen has to say and what Trump has to say boils down to — what else? — evidence. Cohen’s testimony in court and his final mea culpa before Congress has been backed by impressive mountains of evidence.

The bottom line, as far as Cohen is concerned, is that Trump is going to face a mountain of legal issues once he leaves office, because “I have been questioned by the attorney general’s team on many occasions now as well as the District Attorney’s office … I know what it is they’re looking for.” That they will be prosecuting Donald Trump Cohen has no doubt.

Cohen cannot get into details because “it’s an ongoing investigation,” but, “it has to do with his finances, it has to do with his tax returns, it has to do with his properties, it has to do with the financial personal statements that he provided in order to obtain loans.” So if Cohen is right, Donald Trump is in significant civil and criminal jeopardy.

Cohen also thinks Trump is on the order of a billion dollars in debt. Trump, of course, calls Cohen a liar, and that is one of his more polite adjectives used by the one-term lame duck president. “The fact that Donald Trump calls me a liar,” Cohen avers, “should automatically mean that I’m telling the truth.”

Dec. 26

Palmer Report, Opinion: Donald Trump goes off the deep end in a haze of delusional desperation, Bill Palmer, Dec. 26, 2020. Just how poorly are things going President Donald Trump officialfor Donald Trump? He’s spent the day accusing the Supreme Court, the FBI, the Department of Justice, U.S. Attorney John Durham, and Republican Senators of conspiring to hide the fact that he secretly won the 2020 election. Translation: he knows it’s all over for him.

bill palmer report logo headerTrump also made up a fake story today about an imaginary person who told him that elections in Afghanistan are better run than the 2020 U.S. election was. In response to this idiocy, “Move to Afghanistan” is now trending on Twitter. No one outside his shrinking lunatic base wants Trump here anymore. Then again, it’s doubtful that Afghanistan would want him either.

As Donald Trump’s delusional desperation grows more absurd, his most ardent remaining supporters are heading down that same path. Earlier today they tried to convince themselves on social media that House Intelligence Committee Chairman Adam Schiff has secretly been arrested. This obviously didn’t happen. Trump and his supporters have always made up nonsense, but now that he’s lost and their movement is at a dead end, that nonsense is becoming more clinically insane.

ny times logoNew York Times, Behind Trump Clemency, a Case Study in Special Access, Kenneth P. Vogel, Eric Lipton and Jesse Drucker, Dec. 26, 2020 (print ed.). Philip Esformes was sentenced to 20 years for Medicare fraud. Then a well-connected organization supported by his family weighed in with the White House.

philip esformesPhilip Esformes, left, acquired a $1.6 million Ferrari and a $360,000 Swiss watch and traveled around the United States on a private jet, a spending spree fueled by the spoils from what federal prosecutors called one of the largest Medicare fraud cases in history.

“Philip Esformes is a man driven by almost unbounded greed,” Denise M. Stemen, an agent in the F.B.I.’s Miami field office, said last year after Mr. Esformes, 52, a nursing home operator, was sentenced to 20 years in prison for the two-decade scheme that involved an estimated $1.3 billion worth of fraudulent claims.

djt smiling fileThat prison term ended suddenly this week, when President Trump commuted what remained of Mr. Esformes’s sentence.

His rapid path to clemency is a case study in how criminals with the right connections and resources have been able to cut through normal channels and gain the opportunity to make their case straight to the Trump White House.

Background: South Florida Business Journal, South Florida man sentenced to 20 years in $1B Medicare fraud, Ashley Portero, Sept. 13, 2019. Former health care executive Philip Esformes was sentenced to 20 years in prison Thursday in the U.S. District Court for the Southern District of Florida.

philip esformesThe Miami Beach resident, right, was convicted on 20 criminal charges, including bribery and money laundering, in connection to what's been described as the largest Medicare fraud scheme in U.S. history.

“Esformes will now spend years in prison for orchestrating a kick-back and money laundering scheme that defrauded America’s health care system out of millions of dollars,” said Fajardo Orshan, U.S. Attorney for the Southern District of Florida.

HHS logoEsformes was accused of billing Medicare and Medicaid programs for more than $1 billion in fraudulent services from 1998 to 2016. In April, a federal jury found him guilty of paying kickbacks to doctors and administrators and one count of conspiracy to defraud the United States.

FBI logoEsformes operated a network of skilled nursing homes and assisted living facilities in Florida, including Adar Associates, Eden Gardens LLC, Lauderhill Manor LLC, Flamingo Park Manor LLC and La Serena Retirement. The nursing homes admitted many Medicare and Medicaid beneficiaries, even if they did not qualify for those placements.

Once patients were admitted, the facilities billed the government health care programs for unnecessary treatments and services, prosecutors said.

Prosecutors claimed Esformes concealed inadequate care and conditions at the facilities by bribing an employee of a Florida state regulator. In return, he received advanced notice of surprise inspections to the facilities in his network (Emphasis added).

He personally received more than $37 million during the course of the fraud, according to court documents. Prosecutors said he spent some of the illegal proceeds on luxury cars, expensive clothes and watches, and on a bribe to a basketball coach at the University of Pennsylvania.

Odette Barcha, a hospital administrator, and Arnaldo Carmouze, a former physician assistant, previously pleaded guilty for their roles in the scheme. In April, Carmouze was sentenced to 80 months in prison and ordered to pay $12,590,761 in restitution (Emphasis added). Barcha was sentenced to three to 15 months in prison and ordered to pay $704,516 in restitution.

Dec. 25

michael flynn djt

Former general and Trump National Security Advisor Michael Flynn, shown above in a file photo separate from Trump's, has called for a military coup to maintain the presidency of Trump, who has pardoned Flynn from federal crimes stemming from lying at Flynn's contacts with Russians before taking office in January 2017. Flynn's attorney Sydney Powell, invited to the White House three times in recent days to meet with Trump, has been working on courtroom, political and media strategies to disallow voting results in multiple swing states to keep Trump in office.

washington post logoWashington Post, Investigation: Sidney Powell’s secret intelligence contractor witness is a pro-Trump podcaster, Jon Swaine, Dec. 25, 2020 (print ed.). As she asked the U.S. Supreme Court this month to overturn President Trump’s election loss, the attorney Sidney Powell cited testimony from a secret witness presented as a former intelligence contractor with insights on a foreign conspiracy to subvert democracy.

sidney powellPowell, right, told courts that the witness is an expert who could show that overseas corporations helped shift votes to President-elect Joe Biden. The witness’s identity must be concealed from the public, Powell has said, to protect her “reputation, professional career and personal safety.”

The Washington Post identified the witness by determining that portions of her affidavit match, sometimes verbatim, a blog post that the pro-Trump podcaster Terpsichore Maras-Lindeman published in November 2019. In an interview, Maras-Lindeman confirmed that she wrote the affidavit and said she viewed it as her contribution to a fight against the theft of the election.

“This is everybody’s duty,” she said. “It’s just not fair.”

terpsichore maras lindemanIn a recent civil fraud case, attorneys for the state of North Dakota said that Maras-Lindeman, shown in a screenshot at left, falsely claimed to be a medical doctor and to have both a Ph.D. and an MBA. They said she used multiple aliases and social security numbers and created exaggerated online résumés as part of what they called “a persistent effort . . . to deceive others.”

Powell’s reliance on Maras-Lindeman’s testimony may raise further questions about her judgment and the strength of her arguments at a time when she is becoming an increasingly influential adviser to the president.

Trump’s legal team distanced itself from Powell last month after she falsely claimed Republican state officials took bribes to rig the election. But she has visited the White House three times in the past week, once to participate in an Oval Office meeting. Trump has weighed naming Powell a special counsel to investigate the election, according to previous reports.

Maras-Lindeman, 42, served in the Navy for less than a year more than two decades ago and has said she worked later as a government contractor and part-time interpreter. She has identified herself as a “trained cryptolinguist.”

North Dakota’s assertions about her credentials came in a civil case brought by the state’s attorney general in 2018 over a purported charitable event she tried to organize in Minot, N.D., where she and her family resided. Attorneys for the state said she used money she collected — ostensibly to fund homeless shelters and wreaths for veterans’ graves — on purchases for herself at McDonald’s, QVC and elsewhere.

A judge ultimately found that Maras-Lindeman violated consumer protection laws by, among other things, misspending money she raised and soliciting donations while misrepresenting her experience and education. He ordered her to pay more than $25,000.

Maras-Lindeman has appealed to the state Supreme Court. In court filings and in her interview with The Post, she denied mishandling the funds or misleading donors. She blamed identity theft and bureaucratic failings for a proliferation of variations on her name and social security numbers associated with her.

Dec. 22

william barr doj announcement Custom

ny times logoNew York Times, Barr Sees ‘No Reason’ for Special Counsels for Hunter Biden or the Election, Katie Benner, Dec. 22, 2020 (print ed.). The outgoing attorney general, William Barr, again broke with President Trump on his unsupported claims of widespread election fraud and the need to appoint a special counsel to investigate the president-elect’s son.

Attorney General William P. Barr, shown above in a file photo, said Monday that he saw no reason to appoint special counsels to oversee the Justice Department’s ongoing criminal investigation into Hunter Biden, son of President-elect Joseph R. Biden, Jr., or to investigate President Trump’s baseless claims of widespread voter fraud, again undercutting Mr. Trump’s efforts to bend the department to his political will and to overturn the results of the election.

President Donald Trump officialAt a news conference to announce charges in an unrelated terrorism case, Mr. Barr said that he did not “see any reason to appoint a special counsel” to oversee the ongoing investigation into the younger Mr. Biden.

“I have no plan to do so before I leave,” Mr. Barr said. ”To the extent that there is an investigation, I think that it’s being handled responsibly and professionally.”

He also said that he would name a special counsel to oversee an inquiry into election fraud if he felt one was warranted. “But I haven’t and I’m not going to,” Mr. Barr said. He added that he saw “no basis” for the federal government to seize voting machines.

Mr. Barr’s comments are sure to further poison his relationship with Mr. Trump, who has expressed rage that Mr. Barr has not done more to help him overturn the results of the November election.

Mr. Barr has long been regarded as Mr. Trump’s most loyal and effective cabinet member, who on several occasions made decisions that directly benefited Mr. Trump and his allies. But his relationship with the president fractured in the wake of the election after he publicly said that he had not seen enough voter fraud to change the election’s outcome and it became clear that he had kept the ongoing investigation in Mr. Biden’s son under wraps.

tommy tuberville doug jonesIncoming Republican U.S. Sen. Tommy Tuberville, left, is shown with the incumbent Alabama Democrat whom he defeated, Doug Jones.

washington post logoWashington Post, Opinion: Trump’s final hope rests with Tommy Tuberville. Sad! Dana Milbank, right, Dec. 22, 2020 (print ed.). dana milbank CustomPresident-unelect Trump has studied every play in the Coups-for-Dummies playbook: court challenges, pressure on Republican officials to overturn the election, even a half-baked plan for martial law from pardoned convict Michael Flynn. But no luck.

Now, Trump’s final hope rests with Tommy Tuberville.

This is like finding out your death-row appeal will be argued by Sidney Powell.

Tuberville — or “Tubs,” from his college football coaching days — is the Republican senator-elect from Alabama, and he’s proposing to object to the election results in the Senate on Jan. 6. Trump exulted: “Great senator.”

Problem is, Tubs, if he were a Democrat, is what Trump might call a “low-IQ individual.” In their wisdom, the voters of Alabama chose to replace Democrat Doug Jones, who prosecuted the Birmingham church bombing, with a man who recently announced his discovery that there are “three branches of government,” namely, “the House, the Senate and the executive.”

Tuberville was baffled by the vote counting after Election Day (“The referees are suddenly adding touchdowns to the other team’s side of the scoreboard”), and last week said he plans a Senate challenge to the electoral college tally.

Dec. 21

Palmer Report, Opinion: Bill Barr sides with Mike Pompeo against Donald Trump as everything falls apart, Bill Palmer, Dec. 21, 2020. There is no longer any plan, strategy, or scheme that will magically save Donald Trump from being booted out of office in thirty days. He can’t accept that, because once he’s out of office, he’ll be on a path to prison, bankruptcy, and the end of his life as he knows it.

There’s a reason why Trump is now reduced to listening to the delusional fantasies of his crackpot election lawyers: they’re the only people still floating any scenarios for magically saving him. Trump’s “adult” henchmen already know it’s over, and are now trying to cover their own backsides.

bill palmer report logo headerAttorney General Bill Barr is publicly admitting that Trump lost the election fair and square. Secretary of State Mike Pompeo is publicly admitting that it was indeed Russia who hacked U.S. government agencies. Barr has lost his job over it, and Pompeo might be about to. But now Barr is publicly siding with Pompeo on the Russia thing, contradicting Trump’s assertion that the hack was either overblown, or fake, or somehow done by China.

It’s clear that henchmen like Barr and Pompeo are trying to rehabilitate their images now that Trump is taking a fall. After all, the DOJ could easily charge them both with felonies for the criminal antics they carried out while in office. The best way to beat those charges is to establish the narrative now that they couldn’t have been willing Trump henchmen, since they stood up to him in the end.

Barr and Pompeo shouldn’t be let off the hook at all. They each belong in prison; Barr for numerous instances of felony obstruction of justice and Pompeo for his criminal antics in the Ukraine scandal. But for now, the point is that some of Trump’s biggest henchmen are already selfishly turning against him. They know Trump is finished.

Trump attorneys Rudy Giuliani and Jennar Ellis allege election fraud to Republican legislators this month in a performance widely ridiculed because of lack of evidence persuasive to courts and Giuliani's flatulence (heard shortly before this screenshot).

Trump attorneys Rudy Giuliani and Jennar Ellis allege election fraud to Republican legislators this month in a performance widely ridiculed because of lack of evidence persuasive to courts and Giuliani's flatulence (heard shortly before this screenshot).

washington post logoWashington Post, Analysis: How Trump drove the lie that the election was stolen, undermining voter trust in the outcome, Amy Gardner, Dec. 21, 2020 (print ed.). Flanked by pro-Trump media outfits and an assortment of state lawmakers and lawyers who gave oxygen to debunked allegations, the president persuaded millions of Americans that the vote was rigged.

Mediaite, Rudy Giuliani Disavows Sidney Powell’s Role in Trump Legal Fight — After Her Third Oval Office Visit in Four Days, Reed Richardson, Dec 21, 2020. Donald Trump’s personal lawyer and quixotic leader of the campaign to overturn the 2020 election, Rudy Giuliani, labored to distance the president from fellow legal conspiracist Sidney Powell, even though she has visited the White House in three of the last four days.

During an appearance on Newsmax’s Spicer & Co, Giuliani insisted that Powell was acting independently and was not associated with his official efforts on behalf of Trump, despite those visits.

Giuliani’s reference to “special counsel” came after news reports that, during Powell’s Friday Oval Office audience with the president, he reportedly floated the idea of naming Powell as special counsel to investigate election fraud — a move that it should be pointed out is beyond Trump’s authority, since, by regulation, only the attorney general can appoint a special counsel.

However, just moments later, Giuliani appeared to subtly cast aspersions on Powell’s legal strategy. “We’re going to be extremely aggressive, we’re going to fight for our client as hard as we can,” he added. “But we’re also going to do in within the bounds of rationality, common sense, and the law. And it can be done. There’s no reason to go beyond anything.”

This isn’t the first time Giuliani has ruled out Powell having an official role in the legal fight, as he claimed the pair were “pursuing two different theories” just before Thanksgiving. Still, Giuliani’s disavowal rings hollow, since Powell continues to have the president’s ear and, just days before his earlier disavowal, Giuliani and Powell held a surreal, joint press conference where he stood beside her as she pushed delusional election conspiracies involving George Soros, Hugo Chavez, the Clintons, and Antifa, among others.

djt looking up

washington post logoWashington Post, Trump is leaving behind crises and undermining Biden before he takes office, Toluse Olorunnipa, Josh Dawsey and Anne Gearan, Dec. 21, 2020 (print ed.). In a situation without precedent in U.S. history, one president is ending his term amid a global emergency while seeking to delegitimize a successor — and floating the prospect of mounting a four-year campaign to return to power. 

Biden’s incoming administration has long described a “perfect storm” of four crises facing the country — the pandemic, economic distress, climate change and racial justice. It suddenly has another to add: a historic cyber intrusion into government networks that likely began months ago and could reverberate for months to come.

ny times logoNew York Times, Analysis: The ‘Red Slime’ Lawsuit That Could Sink Right-Wing Media, Ben Smith, Updated Dec. 21, 2020. Last week, a lawyer for Antonio Mugica sent scathing letters to Fox, Newsmax and OAN demanding that they immediately, forcefully clear his company’s name. Voting machine companies threaten “highly dangerous” cases against Fox, Newsmax and OAN, says Floyd Abrams.

antonio mugicaAntonio Mugica, left, was in Boca Raton when an American presidential election really melted down in 2000, and he watched with shocked fascination as local government officials argued over hanging chads and butterfly ballots.

It was so bad, so incompetent, that Mr. Mugica, a young Venezuelan software engineer, decided to shift the focus of his digital security company, Smartmatic, which had been working for banks. It would offer its services to what would obviously be a growth smartmaticindustry: electronic voting machines. He began building a global company that ultimately provided voting machinery and software for elections from Brazil to Belgium and his native Venezuela. He even acquired an American company, then called Sequoia.

Last month, Mr. Mugica initially took it in stride when his company’s name started popping up in grief-addled Trump supporters’ wild conspiracy theories about the election.

“Of course I was surprised, but at the same time, it was pretty clear that these people were trying to discredit the election and they were throwing out 25 conspiracy theories in parallel,” he told me in an interview last dominion voting systemsweek from Barbados, where his company has an office. “I thought it was so absurd that it was not going to have legs.”

rudy giuliani recentBut by Nov. 14, he knew he had a problem. That’s when Rudy Giuliani, right, serving as the president’s lawyer, suggested that one voting company, Dominion Voting Systems, had a sinister connection to vote counts in “Michigan, Arizona and Georgia and other states.” Mr. Giuliani declared on Twitter that the company “was a front for SMARTMATIC, who was really doing the computing. Look up SMARTMATIC and tweet me what you think?”

Soon his company, and a competitor, Dominion — which sells its services to about 1,900 of the county governments that administer elections across America — were at the center of Mr. Giuliani’s and Sidney Powell’s theories, and on the tongues of commentators on Fox News and its farther-right rivals, Newsmax and One America News.

Here’s the thing: Smartmatic wasn’t even used in the contested states. The company, now a major global player with over 300 employees, pulled out of the United States in 2007 after a controversy over its founders’ Venezuelan roots, and its only involvement this November was with a contract to help Los Angeles County run its election.

In an era of brazen political lies, Mr. Mugica has emerged as an unlikely figure with the power to put the genie back in the bottle.

djt maga hatLast week, his lawyer sent scathing letters to the Fox News Channel, Newsmax and OAN demanding that they immediately, forcefully clear his company’s name — and that they retain documents for a planned defamation lawsuit.

He has, legal experts say, an unusually strong case. And his new lawyer is J. Erik Connolly, who not coincidentally won the largest settlement in the history of American media defamation in 2017, at least $177 million, for a beef producer whose “lean finely textured beef” was described by ABC News as “pink slime.”

washington post logoWashington Post, Editorial: There is no middle ground between fact and fiction on the election results, Editorial Board, Dec. 21, 2020 (print ed.). As President Trump continues to lie about last month’s election, national Republican leaders are trying to stake out what they imagine as a middle ground: While Joe Biden is the president-elect, the 2020 election was marred by substantial fraud and election irregularities. In fact, this is also a lie, and their dishonesty damages U.S. democracy.

ron johnson oAt a Wednesday Senate Homeland Security and Governmental Affairs Committee hearing, Chairman Ron Johnson (R-Wis.), right, declared that it is “not sustainable” for a large proportion of Americans to believe the election results are illegitimate. He then set about encouraging this false belief by dignifying debunked attacks on the vote’s integrity. Mr. Johnson insisted that pro-Trump forces have raised “legitimate concerns” about “violations of election laws,” “fraudulent votes and ballot stuffing,” and “corruption of voting machines and software that might be programmed to add or switch votes.”

Republicans are inaugurating a new, dangerous era in which political parties may refuse to acknowledge election results merely because they dislike the choices voters made. The damage is twofold: Dignifying fake claims of widespread election irregularities shreds confidence in democracy, destabilizing the nation’s politics and encouraging potentially violent resistance to duly elected leaders.

Meanwhile, GOP state lawmakers in swing states such as Michigan and Pennsylvania have responded to Republican outrage about Mr. Trump’s loss by promising major voting overhauls. This would fit into Republicans’ longer-term efforts to impose restrictions on casting ballots that depress voter participation yet provide little improvement in election integrity.

Sidney Powell, right, and Jenna Ellis

Trump attorneys Jenna Ellis, left, and Sidney Powell conduct a press conference with Trump counsel Rudy Giuliani before Trump fired Powell.

Palmer Report, Opinion: Donald Trump checks out, Bill Palmer, right, Dec. 21, 2020. Donald Trump’s election lawyers Sidney Powell and Lin Wood have spent this bill palmerevening using social media to rather viciously attack Trump’s White House Chief of Staff Mark Meadows and Trump’s Secretary of State Mike Pompeo, accusing them of being part of some kind of ill-defined conspiracy against Trump.

Presumably, this is because Meadows dared to tell Trump that Powell’s lunatic plans to magically overturn the election were literally impossible, and that Pompeo dared to publicly admit that it was Russia who hacked U.S. government agencies. But the specific reasoning behind the scuffle is less important than the fact that it’s happening at all, and what it tells us about Donald Trump himself.

bill palmer report logo headerPowell, Wood, Meadows, and Pompeo are all fully complicit in Trump’s overall corrupt agenda. They’re all his henchmen. If Trump were still in the game, he’d be giving them marching orders, telling them what to do, and getting them all on the same page – his page.

Instead, Trump’s henchmen are all eating each other alive, even as Trump says and does little. This is a clear sign that he’s checked out mentally, and his henchmen are each left to their own devices and trying to fill the resulting power vacuum with their own personal agendas.

Best anyone can tell, Trump likes to hear from his lunatic lawyers because their magical imaginary solutions make him feel good – but then he also likes it when his more stable henchmen explain why none of it’s real, because that gives him an excuse not to have to take action.

Donald Trump is in that place where he’s scared of his own shadow, knows he’s one false move from finished, also knows that he’s doomed if he doesn’t do anything, and just wants to be told that it’s all going to be magically okay. In other words, he’s checked out entirely.

Dec. 17

washington post logoWashington Post, Opinion: John Roberts’s self-defeating attempt to make the court appear nonpolitical, Varad Mehta and Adrian Vermeule, Dec. 17, 2020).  If Roberts’s apostasies have demoralized the right — Vice President Pence flatly called him a “disappointment to conservatives” in August — john roberts othey have emboldened the left.

Far from sating critics of the court, his concessions have only whetted their appetite. His fundamental error has been to think that he could deflect attacks from the left by surrendering to it on some of the most divisive issues. Rather than conciliatory, these gestures have been regarded as a sign of weakness.

Varad Mehta is a historian and writer. Adrian Vermeule is the Ralph S. Tyler Jr. professor of constitutional law at Harvard Law School.

Dec. 15

william barr at doj

washington post logoWashington Post, William P. Barr to depart as attorney general, Trump announces, Matt Zapotosky, Dec. 15, 2020 (print ed.). William P. Barr, right, is stepping down as attorney general, President Trump announced Monday, ending a controversial tenure as the country’s top law enforcement official in which critics say he repeatedly used the Justice Department to aid Trump’s allies only to have the president turn on him when he did not bring charges against those seen as political foes and disputed claims of widespread election fraud.

Trump revealed the move on Twitter, writing that he and Barr, shown above in a file photo, had a “nice meeting” at the White House, and Barr would “be leaving just before Christmas to spend the holidays with his family.”

Trump claimed, “Our relationship has been a very good one, he has done an outstanding job!” — though Trump had expressed frustration with Barr in recent days because Barr did not reveal before the election that Hunter Biden, President-elect Joe Biden’s son, was under investigation by the Justice Department.

He told Fox News this weekend that Barr “should have stepped up” on the matter.

“All he had to do is say an investigation’s going on,” Trump said, adding later, “When you affect an election, Bill Barr, frankly, did the wrong thing.”

washington post logoWashington Post, Proud Boys who came ‘seeking violence’ sparked clashes during pro-Trump rally, D.C. officials say, Tom Jackman, Michael Brice-Saddler and Ann E. Marimow, Dec. 15, 2020 (print ed.). Police said that 38 people had been arrested for protest-related actions, and D.C. Police Chief Peter Newsham said eight officers were injured, one seriously. Ten people were charged with assault on a police officer.

Dec. 13

washington post logoWashington Post, ‘The last wall’: How dozens of judges rejected Trump’s efforts to overturn election, Rosalind S. Helderman and Elise Viebeck, Rosalind S. Helderman and Elise Viebeck, Dec. 13, 2020 (print ed.). They are both elected and appointed, selected by Democrats and Republicans alike.

Some have served for decades — while others took the bench only months ago.

Since the November election, they have all ruled in court against Trump or one of his allies seeking to challenge or overturn the presidential vote.

In a remarkable show of near-unanimity across the nation’s judiciary, at least 86 judges — ranging from jurists serving at the lowest levels of state court systems to members of the United States Supreme Court — rejected at least one post-election lawsuit filed by Trump or his supporters, a Washington Post review of court filings found.

The string of losses was punctuated Friday by the brief and blunt order of the Supreme Court, which dismissed an attempt by the state of Texas to thwart the electoral votes of four states that went for President-elect Joe Biden.

Palmer Report, Opinion: After humiliating Supreme Court defeat, Donald Trump shifts course in his grift, Bill Palmer, Dec. 13, 2020. The Supreme Court has now destroyed Donald Trump. It’s ended his presidency, and it’s cleared the way for others to drive him into prison and bankruptcy. But that isn’t stopping Trump from continuing his grift. In fact, now that his life is about to get squeezed from all sides, he needs the money more than ever.

bill palmer report logo headerTrump is now planning to run TV ads pretending that he won the election, according to Bloomberg. Since there is literally no one else for him to appeal to, it means he’s simply trying to con his gullible supporters into giving him money for an imaginary election battle.

Trump had better pocket what he can. He’s now just 38 days from being an ordinary citizen again. New York State is ramping up its criminal case against him, amid rumblings that his creditors are planning to cut their losses on him. Trump is so pathetically in debt, even his election grifting isn’t likely to keep his financial house of cards intact for long.

Dec. 11

djt biden smiles resized

ny times logoNew York Times, Supreme Court Rejects Texas Suit Seeking to Subvert Election, Adam Liptak, right, Dec. 11, 2020. The Supreme Court on adam liptakFriday rejected a lawsuit by Texas that had asked the court to throw out the election results in four battleground states that President Trump lost in November, ending any prospect that a brazen attempt to use the courts to reverse his defeat at the polls would succeed.

The court, in a brief unsigned order, said Texas lacked standing to pursue the case, saying it “has not demonstrated a judicially cognizable interest in the manner in which another state conducts its elections.”

The order, coupled with another one on Tuesday turning away a similar request from Pennsylvania Republicans, signaled that a conservative court with three justices appointed by Mr. Trump refused to be drawn into the extraordinary effort by the president and many prominent members of his party to deny his Democratic opponent, former Vice President Joseph R. Biden Jr., his victory.

It was the latest and most significant setback for Mr. Trump in a litigation campaign that was rejected by courts at every turn.

Texas’ lawsuit, filed directly in the Supreme Court, challenged election procedures in four states: Georgia, Michigan, Pennsylvania and Wisconsin. It asked the court to bar those states from casting their electoral votes for Mr. Biden and to shift the selection of electors to the states’ legislatures. That would have required the justices to throw out millions of votes.

djt brett kavanaugh amy coney barrettMr. Trump has said he expected to prevail in the Supreme Court, after rushing the confirmation of Justice Amy Coney Barrett in October in part in the hope that she would vote in Mr. Trump’s favor in election disputes.

“I think this will end up in the Supreme Court,” Mr. Trump said of the election a few days after Justice Ruth Bader Ginsburg’s death in September. “And I think it’s very important that we have nine justices.”

He was right that an election dispute would end up in the Supreme Court. But he was quite wrong to think the court, even after he appointed a third of its members, would do his bidding. And with the Electoral College set to meet on Monday, Mr. Trump’s efforts to change the outcome of the election will soon be at an end.

supreme court CustomDec. 10

washington post logoWashington Post, U.S., states sue Facebook as an illegal monopoly, setting stage for potential breakup, Tony Romm, Dec. 10, 2020 (print ed.). The U.S. government and 48 attorneys general filed landmark antitrust lawsuits against Facebook on Wednesday, seeking to break up the social networking giant over charges it engaged in illegal, anti-competitive tactics to buy, bully and kill its rivals.

facebook logoThe twin lawsuits filed in federal district court allege that Facebook under its CEO, Mark Zuckerberg, behaved for years as an unlawful monopoly — one that had repeatedly weaponized its vast stores of data, seemingly limitless wealth and savvy corporate muscle to fend off threats and maintain its stature as one of the most widely used social networking services in the world.

The state and federal complaints chiefly challenge Facebook’s acquisition of two companies: Instagram, a photo-sharing tool, and Justice Department log circularWhatsApp, a messaging service. Investigators said the purchases ultimately helped Facebook remove potentially potent rivals from the digital marketplace, allowing the tech giant to enrich itself on advertising dollars at the cost of users, who as a result have fewer social networking options at their disposal.

Read the state and federal lawsuits against Facebook

The lawsuits together represent the most significant political and legal threats to Facebook in its more than 16-year history, setting up a high-profile clash between U.S. regulators and one of Silicon Valley’s most profitable firms that could take years to resolve. Antitrust regulators explicitly asked a court to consider forcing Facebook to sell off Instagram and WhatsApp to remedy their competition concerns. Such a punishment would unwind Zuckerberg’s digital empire and severely constrain Facebook’s ambitions.

The Federal Trade Commission, led by Republican Chairman Joe Simons, brought its lawsuit in a D.C. district court. Letitia James, the Democratic attorney general of New York, led her Democratic and Republican counterparts from dozens of states and territories in filing their complaint in the same venue. Appearing at a news conference, James on Wednesday sharply rebuked Facebook for having put “profits ahead of consumers’ welfare and privacy.”

washington post logoWashington Post, Silicon Valley feared Facebook’s bullying tactics years before they came to the attention of regulators, Elizabeth Dwoskin, Dec. 10, 2020 (print ed.). Facebook hasn’t kept its promises of independence to WhatsApp and Instagram.

Facebook executives approached Ali Partovi, the creator of a popular app that used Facebook’s data, a decade ago with a threatening ultimatum. Sell your company to us or we will shut you down, according to legal filings. Partovi’s app, iLike, had built a predecessor to the “like” button.

facebook logoPartovi refused the offer. Shortly after, Facebook discontinued features that iLike relied upon, pushing Partovi to sell his start-up to Myspace for a fraction of its previous value. Facebook then built its own “like” button, modeled after iLike.

The negotiations — when Facebook was a much smaller player — are early evidence of the hardball tactics to neutralize competition that got the social network to where it is today: a platform that counts more than a third of the world’s population as monthly users of its family of apps, which include WhatsApp messaging and the photo-sharing service Instagram.

That behavior is now the subject of sweeping antitrust lawsuits filed Wednesday from 48 state attorneys general and the Federal Trade Commission. The suits allege that the company is a monopoly that abused its market power through years of anti-competitive conduct and illegal acquisitions, enabling Facebook to become the world’s largest social network while stripping users of alternatives.

hunter biden

washington post logoWashington Post, Hunter Biden confirms he is under federal investigation, Matt Zapotosky, Devlin Barrett and Colby Itkowitz, Dec. 10, 2020 (print ed.).  Federal prosecutors have been investigating Hunter Biden, President-elect Joe Biden’s son, to determine if he failed to report income from China-related business deals, according to people familiar with the matter — a politically explosive probe that is likely to challenge the Justice Department in the incoming administration.

The investigation into the president-elect’s son began in 2018, though little could be learned immediately about what, if any, wrongdoing it had found. The existence of a tax investigation was confirmed Wednesday by Hunter Biden in a statement saying he had just been advised of it.

According to a person familiar with the matter, who like others spoke on the condition of anonymity to discuss an ongoing and politically sensitive investigation, FBI agents had been seeking to talk to Hunter Biden as part of the case on Tuesday — though an interview has not yet been scheduled or taken place — as well as serve subpoenas on Hunter Biden and his associates.

irs logo“I learned yesterday for the first time that the U.S. attorney’s office in Delaware advised my legal counsel, also yesterday, that they are investigating my tax affairs,” Hunter Biden said in a statement. “I take this matter very seriously but I am confident that a professional and objective review of these matters will demonstrate that I handled my affairs legally and appropriately, including with the benefit of professional tax advisors.”

“President-elect Biden is deeply proud of his son, who has fought through difficult challenges, including the vicious personal attacks of recent months, only to emerge stronger,” the Biden transition team wrote in a statement.

Although the investigation has been ongoing for some time, it is unclear how far along prosecutors consider themselves toward building a criminal case or closing the matter. The subject of an investigation typically is interviewed when prosecutors have amassed a good deal of evidence — though prosecutors seeking to serve subpoenas as recently as this week suggests there is more investigative work to be done.

A person familiar with the case said that the investigation continued during the election year but that agents took care not to take overt investigative steps as voting neared that would have made it more widely known. Those precautions, the person said, became unnecessary once the election was over.

If the investigation is continuing when Joe Biden takes office, it will mark a major test for him and his attorney general. Democrats have criticized the Justice Department, alleging it has lost its historical independence from the White House during the Trump administration, as Attorney General William P. Barr has intervened in cases to the benefit of President Trump’s friends, and Joe Biden’s incoming chief of staff has said the president-elect will not tell the Justice Department whom to investigate or not.

Trump on Wednesday night tweeted a claim about voters changing their minds “if they knew about Hunter Biden” and added, falsely, “But I won anyway!”

Hunter Biden’s foreign business ventures have long dogged his father’s political life, as Republicans have alleged they presented conflicts of interest for the elder Biden.

Trump and his GOP allies targeted Hunter Biden throughout the presidential campaign, specifically his work for a Ukrainian gas company while his father was vice president, as well as his China-related business affairs. Trump invited a former business associate of Hunter Biden to attend the final presidential debate, and in a staged event beforehand, the associate discussed a deal involving a Chinese company.

The associate, Tony Bobulinski, alleged that in May 2017 he met with Joe Biden and his son, as well as Joe Biden’s brother Jim to discuss a joint venture with the Chinese energy firm CEFC. That was after Joe Biden had left public office, and it was far from clear he would again run in 2020. But Bobulinski appeared to be disputing Joe Biden’s assertion that he had never discussed foreign business dealings with his son. Bobulinski told Sinclair Broadcast Group in October that he had been interviewed for five hours by the FBI.

Trump’s fixation on Hunter Biden began months before Joe Biden won the Democratic presidential nomination. Trump asked Ukrainian President Volodymyr Zelensky to open a public investigation into Hunter Biden’s work for a Ukrainian energy company while simultaneously withholding U.S. military aid to the country.

washington post logoWashington Post, Doug Jones is on Biden’s attorney general list, along with Sally Yates, Merrick Garland and Deval Patrick, Matt Viser, Matt Zapotosky and Amy B Wang, Dec. 10, 2020 (print ed.). President-elect Joe Biden’s top advisers have asked at least one outside advocacy group for input about Sen. Doug Jones as a potential attorney general, one indication that his team is giving serious consideration to the Alabama Democrat as the nation’s top law enforcement official.

Biden is not expected to make a decision this week, prolonging the debate both inside and outside his transition team over what will be one of the highest-profile roles in his administration. It has sent the wider legal and political worlds into a frenzy, with Biden’s close-knit advisers keeping a tight lid on their decision-making process amid widespread interest over who will lead a consequential department whose morale has plummeted under an assault from President Trump.

Justice Department log circularIt also has extended questions about the diversity of Biden’s Cabinet, as a range of groups press him to name a Black attorney general in the aftermath of a national racial reckoning on race that Biden has vowed to systematically address.

At least four candidates remain under serious consideration for the position, according to two people familiar with the decision-making process who, like others, spoke on the condition of anonymity to talk about internal discussions. In addition to Jones, top Biden advisers are eyeing former deputy attorney general Sally Yates, federal appeals court judge Merrick Garland and former Massachusetts governor Deval Patrick. All but Patrick are White.

doug jones senateJones, right, who lost his reelection bid in November, has a record that has impressed some civil rights groups. Allies have pointed to his time as a U.S. attorney, which included the prosecution two decades ago of Ku Klux Klan members for the 1963 bombing of a Birmingham church in which four young Black girls were killed.

In what has become another vital component during Biden’s selection of nominees, Jones has a long-standing relationship with the president-elect, dating back to 1978 when Biden went to Alabama to speak at Cumberland School of Law at Samford University and was introduced by a young Jones.

Jones later worked with Biden on the Senate Judiciary Committee and was the Alabama co-chair of Biden’s short-lived 1988 presidential campaign.

Dec. 8

Attorney Mark Anderl, his wife, U.S. District Judge Esther Salas, and their son, Daniel Anderl

ny times logoNew York Times, Opinion: My Son Was Killed Because I’m a Federal Judge, Esther Salas (shown above with her son and husband, a United States District Court judge for the District of New Jersey who sits in Newark), Dec. 8, 2020. Protecting judges is essential to our families, and our democracy.

“Let’s keep talking; I love talking to you, Mom.” Those were the last words spoken to me by my only child, Daniel, as we cleaned up the basement from his birthday festivities. He was still glowing from a glorious weekend at home with his parents and friends.

Then the doorbell rang. Daniel raced up the stairs. Seconds later, as I stood alone in our basement, my beloved son was shot to death. Mark Anderl, my husband of 25 years was shot three times and critically injured.

This tragedy, every mother’s worst nightmare, happened for a reason wholly unrelated to either my husband or my son, but because of my job: I am a United States District Court judge. A lawyer who had appeared before me was angered by the pace of a lawsuit he had filed in my court. He came to my home seeking revenge.

My attacker sought to hurt me but his ire, and his focus, were not unique. Federal judges are at risk from other would-be attackers.

The threat to judges is intensifying. Security incidents targeting judges and other personnel who play integral roles in federal court cases rose to 4,449 threats and inappropriate communications in 2019, from 926 such incidents in 2015, according to the U.S. Marshals Service.

roy den hollander esther salasIn my case, Roy Den Hollander [shown at right with the judge in file photos), a New York lawyer who had filed a suit against the male-only military draft, harbored deadly grudges.

On July 11, 2020, he killed a lawyer in California. Eight days later, he came to our door and killed Daniel. Too late, I learned that he had often described himself as “anti-feminist.” In a self-published memoir, he described me as “a lazy and incompetent Latina judge appointed by Obama.”

For judges and their families, better security is a matter of life and death. But its importance goes beyond our well-being alone. For our nation’s sake, judicial security is essential. Federal judges must be free to make their decisions, no matter how unpopular, without fear of harm. The federal government has a responsibility to protect all federal judges because our safety is foundational to our great democracy.

U.S. Election Litigation

supreme court Custom

washington post logoWashington Post, Supreme Court denies Trump allies’ bid to overturn Pennsylvania election results, Robert Barnes, Dec. 8, 2020. The Supreme Court on Tuesday denied a last-minute attempt by President Trump’s allies to overturn the election results in Pennsylvania.

The court’s brief order provided no reasoning, nor did it note any dissenting votes. It was the first request to delay or overturn the results of the presidential election to reach the court.

The lawsuit was part of a blizzard of litigation and personal interventions Trump and his lawyers have waged to overturn victories by Democrat Joe Biden in a handful of key states.

Trump called the speaker of the Pennsylvania House of Representatives twice during the past week to make an extraordinary request for help reversing his loss in the state. But Speaker Bryan Cutler told the president he had no authority to step in, or to order the legislature into special session, a Cutler spokesman told The Washington Post.

Republican members of the legislature and Congress supported the Supreme Court challenge to the changes they had made to Pennsylvania’s voting system in 2019.

A group of Republican candidates led by Rep. Mike Kelly (R) challenged Act 77, a change made by the Republican-controlled legislature to allow universal mail-in ballots. Their charge was that the state constitution’s requirements on absentee ballots meant the legislature didn’t have the authority to open mail-in balloting for others.

Trump allies ask Supreme Court to intervene in Pennsylvania election

But the Pennsylvania Supreme Court said the challenge was filed too late — only after the votes were cast and the results known. Democrat Joe Biden won the state by a more than 80,000-vote margin.

The unanimous order blamed petitioners for a “complete failure to act with due diligence in commencing their facial constitutional challenge, which was ascertainable upon Act 77’s enactment.”

It added that some of the petitioners had urged their supporters to cast their ballots using the new main-in procedure.

The U.S. Supreme Court rarely intervenes in a decision of a state supreme court interpreting its own constitution and laws. But the plaintiffs charged that the system raised federal issues. Although acknowledging that it is up to states to develop election procedures, the claim was that the federal Constitution was violated if the Pennsylvania legislature expanded the mail-in procedure without proper authority from the state constitution.

Further, they claimed the individual constitutional rights of Kelly and the others were violated. Their theory was that because the Pennsylvania Supreme Court dismissed the challenge because it was filed too late, they were denied due process.

Trump by Michael Vadon Creative Commons e1486885124813

Palmer Report, Opinion: Supreme Court rejects Donald Trump’s election case; so much for Alito and SCOTUS saving him, Bill Palmer, Dec. 8, 2020. 
Today is the safe harbor deadline, meaning that after today, the presidential election results can no longer be disputed or revised. So it’s a big deal that the U.S. Supreme Court just refused to hear a case brought by Donald Trump and his allies, which sought to overturn the results in Pennsylvania.

bill palmer report logo headerNotably, this was the case that was presented to conservative Trump-friendly Supreme Court Justice Samuel Alito. So the rejection, which doesn’t note any dissenters, suggests that Alito agreed with the rejection – and that it may well have been unanimous.

So this could be the end of it. We’ll see if the Supreme Court makes any additional moves tonight, before the safe harbor deadline at the end of the day. But it looks like Donald Trump has finally, fully lost his to bid to magically overturn the election.

Trump always had literally zero chance of pulling this off, at the margins he lost by. But it’s comforting that Trump’s failure to magically overturn the election is becoming more official by the hour.

michael flynn arms folded

washington post logoWashington Post, Michael Flynn judge says pardon doesn’t mean ex-national security adviser is innocent, Spencer S. Hsu and Ann E. Marimow, Dec. 8, 2020. A federal judge dismissed Michael Flynn’s prosecution Tuesday after President Trump’s pardon, but said the act of clemency does not mean the former national security adviser, above, is innocent of lying to FBI agents about his talks with the Russian government before Trump took office.

In formally ending Flynn’s three-year legal saga, U.S. District Judge Emmet G. Sullivan said he probably would have denied the Justice Department’s controversial effort this year to drop the case, which Democrats and many legal experts said appeared to be an attempt by Attorney General William P. Barr to bend the rule of law to help a Trump ally.

emmet sullivan 2012Sullivan, left, expressed deep skepticism about the Justice Department’s stated reasons for abandoning the case, criticizing it for applying a different set of rules to Flynn, who twice pleaded guilty to lying about his contacts with Russia’s ambassador during special counsel Robert S. Mueller III’s probe of 2016 election interference.

The judge also said he was troubled by the government’s “dubious” rationales as well as aspects of its “ever-evolving justifications” that ignored applicable law, appeared to be irrelevant or to contradict prosecutors’ previous statements.

“President Trump’s decision to pardon Mr. Flynn is a political decision, not a legal one. Because the law recognizes the President’s political power to pardon, the appropriate course is to dismiss this case as moot,” Sullivan wrote, adding: “However, the pardon ‘does not, standing alone, render [Mr. Flynn] innocent of the alleged violation.’ ”

The 43-page ruling delivered the court’s final say in the politically charged case, after the Justice Department and Flynn’s defense requested immediate dismissal following Trump’s “full and unconditional pardon” on Nov. 25. The action ensured that Flynn will not face federal penalties for “any and all possible offenses” arising from facts or circumstances “in any matter related” to Mueller’s Russia probe.

Read the opinion here.

Flynn, 61, pleaded guilty in December 2017 to lying in an FBI interview and to senior White House officials about the scope of his pre-inauguration conversations with Russian Ambassador Sergey Kislyak after Moscow intervened to boost Trump in the 2016 U.S. election.

FBI logoFlynn, ousted from the White House after only 22 days on the job, was the only Trump White House adviser charged in Mueller’s investigation, and faced up to six months in prison under an initial plea deal.

But when Sullivan did not initially approve a sentence of probation that had the government’s blessing, Flynn changed defense teams and began accusing prosecutors and his former attorneys of entrapping and coercing him into pleading guilty despite his earlier sworn statements. Flynn moved in January to withdraw his guilty plea, and Barr ordered a review of the case that determined that the Justice Department should drop the prosecution.

djt handwave fileIn reversing course, the Justice Department concluded that Flynn’s lies were not material to any valid counterintelligence or criminal investigation. The government also said it doubted that it could persuade a jury to convict him since key FBI officials who led the probe into potential Trump campaign ties to Russia had been discredited.

Meet the judge who will decide Flynn’s case, one of the Justice Department’s most probing skeptics

In Tuesday’s opinion, Sullivan cast doubt on the government’s true reasons.

“As this case has progressed, President Trump has not hidden the extent of his interest in this case,” noting that Trump tweeted or retweeted about Flynn’s case at least 100 times. “Given this context, the new legal positions the government took … raise questions regarding its motives in moving to dismiss.”

Justice Department log circularThe president has repeatedly attacked the Russia investigation as a “witch hunt” and embraced Flynn’s case as a rallying cry for his reelection campaign. For more than a year, Flynn attorney Sidney Powell has called the pursuit of Flynn a corrupt effort by the FBI and “deep-state” conspirators to “get Trump,” discussing the case several times with Trump, before taking a prominent legal role last month promoting Trump’s unsuccessful claims of voter fraud.

The judge also took issue with the government saying that Flynn had a “faulty memory” in defending his misstatements.

“Mr. Flynn is not just anyone; he was the National Security Advisor to the President, clearly in a position of trust, who claimed that he forgot, within less than a month, that he personally asked for a favor from the Russian Ambassador that undermined the policy of the sitting President prior to the President-Elect taking office,” Sullivan wrote.

Sullivan declined to immediately dismiss the case upon the Barr Justice Department’s motion in May, instead tapping a retired federal judge to argue against the government’s position to help determine whether dismissal was in the public interest. The department argued that judges must dismiss prosecutions when the government and defense agree to do so, leading to an extraordinary legal battle that reached the U.S. Court of Appeals for the D.C. Circuit, and raising questions about the power of the courts to check the executive branch.

With Flynn’s pardon, those questions may now go unanswered, but Sullivan on Tuesday strongly rejected the Justice Department’s argument, saying courts are not a “rubber stamp.”

Michael Flynn Harvard 2014Prosecutors conceded at one point, he noted, that judges may act to protect the public against exceptional abuses by “rogue” prosecutors, such as the “corrupt dismissal of politically well-connected individuals.” But Sullivan said that narrow reading “fails to acknowledge the possibility that the ‘considered view of the Executive Branch as a whole’ could be contrary to the public interest.”

Similarly, the judge called the government’s “newly-minted” definition of “materiality” perplexing, “not the law” and an unexplained “about-face” from prior prosecutors’ position that Flynn’s lie’s were “absolutely material” and “went to the heart” of the FBI’s investigation.

Sullivan’s complaints echoed findings by a bipartisan Senate investigation that the Flynn-Kislyak talks were relevant to assessing “what Moscow sought to gain and the counterintelligence vulnerabilities” of Trump’s team.

The Justice Department inspector general found last year the FBI committed serious errors but had sufficient legal basis to open the criminal inquiry into whether individuals associated with Trump’s campaign cooperated with the Russians.

Palmer Report, Opinion: Judge Sullivan hears legal arguments against Trump’s pardon of Michael Flynn, Bill Palmer, Dec. 8, 2020. When Donald Trump granted a preemptive pardon to Michael Flynn, right, Palmer Report pointed out that it wasn’t a magic wand. There isn’t clear precedent as to whether preemptive pardons (for charges not yet brought) are constitutional, because they’ve never been properly challenged in court.

bill palmer report logo headerThey’ll surely be challenged during the course of Trump’s pardon spree, and we’ve been wondering if Judge Emmet Sullivan would initiate that process himself. After all, he’s been going out of his way to stop Bill Barr from sabotaging the Flynn case.

That prospect got a boost over the weekend when another Federal Judge, Reggie Walton, publicly urged Sullivan to consider ruling that Flynn’s pardon doesn’t apply to charges not yet brought. Sure enough, Sullivan announced today that he’ll hear friend of the court amicus briefs from legal experts who are arguing that Flynn’s pardon isn’t valid for charges that haven’t been brought yet.

There’s no roadmap for where this is headed. But we now have confirmation that Judge Sullivan is at least considering formal arguments against the scope of Flynn’s pardon. This could open the door for the DOJ to hit Flynn with additional criminal charges once Trump is gone

Dec. 6

Twitter, Analysis of Supreme Court requests for briefs on Pennsylivania's presidential balloting, Stephen Vladeck (right, University of Texas law professor), Dec. 6, stephen vladeck resized2020. A lot of reactions today to Justice Alito moving up the deadline for PA to respond to @MikeKellyPA's application for an emergency injunction to throw out PA's certification of its presidential electors.

Here's a quick #thread on why none of this matters—or is going to matter:

First, there's the obvious point: Even if this gambit somehow succeeds (spoiler: it won't), the worst-case scenario is that PA's electoral votes get tossed.

In that case, Biden would *still* receive 286 electoral votes when the Electoral College votes on 12/14. He needs 270.

3. Now, let's get to why the Kelly suit isn't going anywhere. First, it was dismissed by the PA Supreme Court based upon a state procedural bar ("laches"). #SCOTUS does not have jurisdiction to review state court decisions that rest on such "independent and adequate" state rules.

djt looking up

Palmer Report, Opinion: The principal reason Donald Trump belongs in prison, Robert Harrington, Dec. 6, 2020. I have infinite respect for Dr. Mary L. Trump, Donald Trump’s niece. I read with fascination her book, “Too Much and Never Enough,” and if you haven’t read it yet, I highly recommend it. We are fortunate that a woman who grew up to be a first rate trained psychologist was at Donald Trump’s elbow for so many of his formative years. She is to the history of Trump what the Watergate tapes were to Nixon, or the Zapruder film was to the Kennedy assassination. She was there, she witnessed the formation (and the formulation) of the monster. Dr. Trump has the qualities, intelligence and qualifications to relate and interpret what and how Donald Trump happened.

But when it comes to the central reason why Donald Trump must go to prison I think Dr. Trump, for all her perspicacity, widely misses the point. In fact I think most commentators on the tragedy that is Donald Trump and the Trump presidency miss the point.

bill palmer report logo headerIn a recent interview, Dr. Trump said, “It’s quite frankly insulting to be told time after time that the American people can’t handle [the prosecution of Trump] and that we just need to move on.” I can’t argue with her there. But then she gave her reason: “If anybody deserves to be prosecuted and tried, it’s Donald. [Otherwise] we just leave ourselves open to somebody who, believe it or not, is even worse than he is.”

While that’s all true enough, and I can’t dispute it, it’s not the principal reason Donald Trump belongs in prison. The principal reason Trump needs to go to jail is one I made in passing in the last article I wrote to you, brothers and sisters. So vital is that point that I think it requires it’s very own article.

djt prison palmer reportDonald Trump must go to prison not merely because we must discourage future monsters who may be worse, he must go to prison because we do not have the right not to send him there. We do not have the right to forgive him for the crimes he has committed against other people.

Think of it yourself. Imagine someone has harmed you very deeply, so deeply in fact, that the harm he has done to you has ruined your life, or destroyed the life of someone you love. Now imagine if I came along and ostentatiously forgave that person, completely absolved them of any wrongdoing they may have committed against you. Wouldn’t that seem to you the pinnacle of arrogance and conceit? Wouldn’t you wonder how dare I do such a thing and — more to the point — who the hell do I think I am that I should do such a thing, that I should so presumptuously arrogate such a power to myself? Wouldn’t you even go so far as to think I am committing a crime just as bad, or at least in the same league, as the man I so conspicuously absolved?

Of course you would. You would feel your heartfelt cry for justice he’s been ignored, rejected, smothered in a blanket of self-righteous goo and sentimental self-congratulation.

By forgiving Trump we would be committing a grave injustice to more than a quarter of million men and women Trump has murdered through negligence, the thousands of family businesses he’s ruined, the 545 immigrant children he has permanently separated from their parents, the dozens of women Trump has sexually assaulted and raped, the hundreds, or even thousands of Americans and their families Trump has put in fear of their lives with angry Tweets because they were “guilty” of insulting him, or insufficiently praising him, or not going far enough in assisting him in his criminal endeavors.

What hubris it would be for us to ignore justice for such a man! What arrogance would be ours to then slap ourselves on the backs with smug approbation and call ourselves peacemakers! We have no such right. We must, at the very least, try to send Donald Trump to prison — and we have no right not to.

Yes, we need to prevent another Trump. Yes, we need to send a message that no one, not even the president of the United States, is above the law. Yes, we need to prosecute Trump because the law demands it, that no free society can hope to survive without the rule of law. Yes, yes, a thousand times yes.

But above all, we must avenge the millions of Americans Donald Trump has harmed, the ones he harmed insolently, thoughtlessly, without remorse, without so much as an afterthought. He has harmed and killed Americans with elitist indifference, as if it’s his birthright and we are all nothing by comparison. Justice must be done. Justice cries out from the ground for the voiceless Donald Trump has destroyed. Justice must be done if only for the reason that we have no right to contemplate anything less than justice, and for that reason alone we have no choice but to do our duty. And, as ever, ladies and gentlemen, brothers and sisters, comrades and friends, stay safe.

Dec. 4

washington post logoWashington Post, Opinion: America may not be so lucky next time. Benjamin L. Ginsberg, Dec. 4, 2020. Benjamin L. Ginsberg practiced election law for 38 years. He co-chaired the bipartisan 2013 Presidential Commission on Election Administration.

The country was lucky that President Trump and his reelection campaign were so inept. He ultimately lost by a wide margin, and his challenges to the results have been farcical. His rhetoric ramped up in inverse proportion to his ability to produce evidence supporting his charges of systemic “fraud” or “rigged” elections.

The United States might not be so lucky next time. What if the 2020 election had been as close as it was in 2000, and the outcome hinged on a state (or states) with a truly narrow margin? How would the country have fared under a Trump-style assault on democracy’s foundations?

Trump’s attempts to negate millions of votes by challenging state certifications revealed cracks in those foundations. Some shoring-up is clearly needed before the next election cycle begins. A good place to start might be with the appointment of a bipartisan commission that would propose election reforms to Congress and the states. Here are half a dozen suggestions to get things started:

Revise the Electoral Count Act of 1887, a law that came perilously close to being invoked for the first time in its history. Its muddled language would not have provided clear answers to myriad crucial questions. What happens if a state submits competing slates of electors? How to determine if a “majority” of the electoral college refers to all 538 electors or only those present and voting? If choosing the president fell to the House, with a single vote for each state, could a majority of members prevent the swearing-in of enough minority members (who nonetheless represented more states) so that the majority’s presidential candidate would win? The 1887 law clearly needs updating and clarifying.

Dec. 3

ny times logoNew York Times, Opinion: Justice Amy Coney Barrett’s Choice, Linda Greenhouse (shown at right on the cover of her memoir), Dec. 3, 2020. Will she join the Supreme Court’s grievance linda greenhouse cover just a journalistconservatives? Justice Amy Coney Barrett (below left) had a choice.

She could provide the fifth vote on the Supreme Court that Justices Samuel Alito, Clarence Thomas, Neil Gorsuch and Brett Kavanaugh needed — and would not have received from the Justice Ruth Bader Ginsburg — to place a temporary block, in the name of religious freedom, on New York’s pandemic-driven limitations on church and synagogue attendance.

amy coney barrett headshot notre dame photoOr she could give that precious fifth vote to Chief Justice John Roberts in the name not only of public health but also of judicial modesty, since the most severe restrictions the Catholic and Jewish organizations were complaining about were no longer in effect and the whole case might well disappear into thin air if the Supreme Court simply stayed its hand.

History will record the choice Justice Barrett made in the court’s Nov. 25 decision as the first moment of fruition for the hopes and fears engendered by her abrupt election-eve ascension to the Supreme Court following Justice Ginsburg’s death in September.

The real significance of the decision lay in the which-side-are-you-on test it posed for the newest justice. I don’t mean the conservative side versus the liberal side. Obviously, she’s a conservative. What matters is that a month into her tenure, she chose to align herself with what I call grievance conservatism: conservatism with a chip on its shoulder, fueled by a belief that even when it’s winning, it’s losing, and losing unfairly.

ny times logoNew York Times, Opinion: I Wrote the Special Counsel Rules. Barr Has Abused Them, Neal K. Katyal (right, a law professor at Georgetown), Dec. 3, 2020. neal katyal oThere is no reason for the outgoing attorney general to appoint his preferred prosecutor for the continuing Trump-Russia inquiry.

Attorney General William Barr’s decision on Tuesday to name John Durham, the U.S. attorney for the District of Connecticut appointed by President Trump, as special counsel to investigate matters surrounding the 2016 election violates the rules for special counsels as well as fundamental democratic principles.

There may be reasons the inquiry by Mr. Durham, below left — an investigation that began in 2019 into the Trump-Russia inquiry — should continue, but there is absolutely no reason to permit an outgoing attorney general to try to install his preferred personnel at the investigation’s helm in the new administration. And it is entirely appropriate for President-elect Joe Biden to appoint all the prosecutors in his new administration, just as john durham o portrait 2 croppedhis predecessors have done.

The special counsel regulations, which I drafted in 1999 as a Justice Department staff member, were designed with the idea that some investigations require a person from outside the department to assure the public of sufficient independence.

The reason for using any of these models, especially the special counsel one, is really the opposite of Mr. Barr’s apparent goal. They are designed to insulate from politics serious investigative work that needs to be done.

So far as anyone can tell, after months of work, Mr. Durham’s effort appears not to be investigative work that requires insulation from politics but political work that Mr. Barr now wants to insulate from investigative scrutiny. That stands the special counsel model on its head and underscores why he should not receive the “special counsel” designation.

ny times logoNew York Times, Opinion: Why Prosecuting Trump Is a Very Bad Idea, Eric Posner (University of Chicago law professor and the author of “The Demagogue’s Playbook: The Battle for American Democracy From the Founders to Trump”), Dec. 3, 2020. The goal would be to renew faith in our government, but its effect would be the opposite.

As the Biden administration slowly coalesces, there have been many calls for its Justice Department to prosecute Donald Trump for any crimes he may have committed while in office. The hope, proponents of this view argue, is to establish that the president is subject to the rule of law and to deter future presidents from breaking the law.

The problem with this agenda is that there is little evidence that Mr. Trump did commit crimes as president. A conviction, given what we know now, is all but impossible. The calls to investigate him echo the president’s own calls to investigate Barack Obama, Hillary Clinton and Joe Biden based on mere speculation — calls that most people, especially liberals, rightly condemned.

The most plausible charge is that Mr. Trump obstructed justice by interfering with, and possibly lying to, Robert Mueller and his investigators. Critics also argue that Mr. Trump may have broken the law by threatening to withhold military aid to Ukraine unless the Ukrainian government announced the opening of an investigation into the Bidens. A third possible charge is that Mr. Trump corruptly mixed his financial affairs with government business.

All of these charges would face formidable difficulties in court.

Investigations into allegations that Mr. Trump was involved in credit and tax fraud and campaign finance violations before his presidency are another matter. But convictions based on such pre-presidential behavior will not reflect on his presidency nor hold lessons for future presidents.

And even these investigations run the risk of turning Mr. Trump into one of the last things we want him to be: a martyr.

Dec. 2

President Trump, left, with Chief Justice John Roberts and Attorney General William Barr and his wife at Barr's swearnig in ceremony at the White House on Feb 14, 2019 (White House photo).

President Trump, left, with Chief Justice John Roberts and Attorney General William Barr and his wife at Barr's swearing in ceremony at the White House on Feb 14, 2019 (White House photo).

ny times logoNew York Times, Barr Admits Finding No Evidence of Fraud That Could Have Swayed Election,New York Times, Barr Admits Finding No Evidence of Fraud That Could Have Swayed Election, Katie Benner, Emily Cochrane, Glenn Thrush and Michael S. Schmidt, Dec. 2, 2020 (print ed.). Attorney General William P. Barr said Tuesday that the Justice Department has not uncovered voting fraud at a scale that could have affected the results of the presidential election, reaffirming Joseph R. Biden Jr.’s win despite President Trump’s groundless claims that he was defrauded.

Mr. Barr’s comments, in an interview with The Associated Press, were a prominent repudiation of Mr. Trump’s baseless assertions and came days after the Justice Department log circularpresident implied that the Justice Department and the F.B.I. may have played a role in an election fraud.

Mr. Barr’s comments came as another Trump ally signaled he was ready to move on after a surreal month of lawsuits, conspiracy theories and denials by the president of a loss that has proved durable and decisive.

Senator Mitch McConnell, Republican of Kentucky and the majority leader, who has refused to recognize Mr. Trump’s election loss, on Tuesday moved closer to overtly accepting the reality that Mr. Biden would be in the White House next year, while discussing the prospects for more pandemic stimulus in 2021.

william barr resized profileTaken together, Mr. Barr’s direct declaration and Mr. McConnell’s indirect reference to Mr. Biden’s new administration represent a major, if not unexpected, blow to the president’s postelection effort to change the results from two men whom he has often relied on for political cover.

Moments after Mr. Barr’s comments were made public, Rudolph W. Giuliani, Mr. Trump’s lawyer, emailed a statement on campaign letterhead, claiming — again without evidence — that he had found “ample” proof of national voter fraud sufficient to swing the election to Mr. Biden.

“With the greatest respect to the Attorney General, his opinion appears to be without any knowledge or investigation of the substantial irregularities and evidence of systemic fraud,” wrote Mr. Giuliani late Tuesday.

Amid the fallout from Mr. Barr’s statements about the election, the Justice Department also announced that he had given extra protection to the federal prosecutor examining the origins of the investigation into links between Mr. Trump’s campaign and Russia.

Mr. Barr appointed the prosecutor, John H. Durham, as a special counsel, a move that makes it more difficult for the Biden administration to fire him without providing evidence of misconduct.

Mr. Durham has been conducting the investigation for a year and a half, and Mr. Trump and his allies had been banking on him uncovering wrongdoing by Obama-era F.B.I. officials to help the president’s political fortunes in the lead up to last month’s election. But Mr. Durham has charged only one person, an F.B.I. lawyer who pleaded guilty to doctoring an email.

washington post logoWashington Post, Opinion: Trump fired me for saying this, but I’ll say it again: The election wasn’t rigged, Christopher Krebs, Dec. 2, 2020. Christopher Krebs is the former director of the Cybersecurity and Infrastructure Security Agency.

chris krebs oOn Nov. 17, I was dismissed as director of the Cybersecurity and Infrastructure Security Agency, a Senate-confirmed post, in a tweet from President Trump after my team and other election security experts rebutted claims of hacking in the 2020 election. On Monday, a lawyer for the president’s campaign plainly stated that I should be executed. I am not going to be intimidated by these threats from telling the truth to the American people.

Three years ago, I left a comfortable private-sector job to join, in the spirit of public service, the Department of Homeland Security. At the time, the national security community was reeling from the fallout of the brazen Russian interference in the 2016 presidential election. I wanted to help.

This point cannot be emphasized enough: The secretaries of state in Georgia, Michigan, Arizona, Nevada and Pennsylvania, as well officials in Wisconsin, all worked overtime to ensure there was a paper trail that could be audited or recounted by hand, independent of any allegedly hacked software or hardware.

That’s why Americans’ confidence in the security of the 2020 election is entirely justified. Paper ballots and post-election checks ensured the accuracy of the count.

washington post logoWashington Post, Opinion: Lawyers should not be complicit in Trump’s attack on democracy, By 25 former presidents and the former CEO of the D.C. Bar, Dec. 2, 2020 (print ed.). It is deeply troubling that so many lawyers and law firms have let themselves be used in this corrosive undermining of confidence in the democratic process.

The period since the election has seen a destructive and unwarranted series of abusive lawsuits filed by some members of the American legal profession. While lawyers must represent their clients with determination and zeal, no lawyer may seek, on behalf of any client, to subvert democratic institutions or burden the courts with claims that the lawyer knows are frivolous. As former presidents and a former CEO of the District of Columbia Bar, which has more than 100,000 members from every state, we think that it is important to explain that it did not have to be this way, and it should not have been.

Since the election, instead of telling their client to stop, some lawyers — too many — have leveled attacks on the integrity of the electoral process, basing their assertions on unfounded allegations of “voter fraud” or “ballot tampering.”

Lawyers for President Trump have filed at least three dozen lawsuits in various states, charging grave abuses of the electoral process. Their goal has been to scuttle the process for counting and certifying the vote, thereby expunging millions of votes. If any legitimate evidence to support the challenges existed, we would defend the lawyers in raising the pertinent legal issues. But in the absence of any meaningful evidence, we must condemn the abuse of the judicial system to subvert the democratic process.

Fortunately, federal and state judges, regardless of prior political affiliation, have quickly and courageously rebuffed these groundless lawsuits. But it is deeply troubling that so many lawyers and law firms have been willing to sign their names to these filings, letting themselves be used in this corrosive undermining of confidence in the democratic process. Members of the bar have an obligation to refrain from undertaking a matter for a client when the lawyer knows that the purpose of the lawsuit is purely political and lacks concrete factual support or plausible legal merit.

ivanka eric don jr trump Custom

 ny times logoNew York Times, Trump Has Discussed Pardons for 3 Children, Kushner and Giuliani, Maggie Haberman and Michael S. Schmidt, Dec. 2, 2020 (print ed.). President Trump has discussed with advisers whether to grant pre-emptive pardons to his children (shown above), to his son-in-law and to his personal lawyer Rudolph W. Giuliani, and talked with Mr. Giuliani about pardoning him as recently as last week, according to two people briefed on the matter.

Mr. Trump has told others that he is concerned that a Biden Justice Department might seek retribution against the president by targeting the oldest three of his five children — Donald Trump Jr., Eric Trump and Ivanka Trump — as well as Ms. Trump’s husband, Jared Kushner, a White House senior adviser.

djt rudy giulianiDonald Trump Jr. had been under investigation by Robert S. Mueller III, the special counsel, for contacts that the younger Mr. Trump had had with Russians offering damaging information on Hillary Clinton during the 2016 campaign, but he was never charged. Mr. Kushner provided false information to federal authorities about his contacts with foreigners for his security clearance, but was given one anyway by the president.

The nature of Mr. Trump’s concern about any potential criminal exposure of Eric Trump or Ivanka Trump is unclear, although an investigation by the Manhattan district attorney into the Trump Organization has expanded to include tax write-offs on millions of dollars in consulting fees by the company, some of which appear to have gone to Ms. Trump.

Presidential pardons, however, do not provide protection against state or local crimes.

Mr. Giuliani’s potential criminal exposure is also unclear, although he was under investigation as recently as this summer by federal prosecutors in Manhattan for his business dealings in Ukraine and his role in ousting the American ambassador there. The plot was at the heart of the impeachment of Mr. Trump.

The speculation about pardon activity at the White House is churning furiously, underscoring how much the Trump administration has been dominated by investigations and criminal prosecutions of people in the president’s orbit. Mr. Trump himself was singled out by federal prosecutors as “Individual 1” in a court filing in the case that sent Michael D. Cohen, his former lawyer and fixer, to prison.

The discussions between Mr. Trump and Mr. Giuliani occurred as the former New York mayor has become one of the loudest voices pushing baseless claims of widespread fraud in the 2020 election, which Mr. Trump still proclaims publicly that he won. Many of Mr. Trump’s longtime aides have refused to do his bidding to try to overturn an election that President-elect Joseph R. Biden Jr. won by nearly seven million votes. But Mr. Giuliani has repeatedly thrust himself into the spotlight to cast doubt on the results, which has ingratiated him with the president.

gabriel sterling resized screenshot

ny times logoNew York Times, ‘It Has to Stop’: Georgia Republican Lashes Out at Trump, Richard Fausset, Dec. 2, 2020 (print ed.). A top-ranking election official in the state criticized the president for failing to condemn threats of violence against election workers. Gabriel Sterling, shown above in a screenshot, a voting system official in Georgia, harshly criticized the president for failing to condemn threats of violence against people overseeing the election in his state.

In one of the most striking rebukes to President Trump since he launched his baseless attacks on the American electoral process, a top-ranking Georgia election official lashed out at the president on Tuesday for failing to condemn threats of violence against people overseeing the voting system in his state.

republican elephant logo“It has to stop,” Gabriel Sterling, a Republican and Georgia’s voting system implementation manager, said at an afternoon news conference at the state Capitol, his voice shaking with emotion. “Mr. President, you have not condemned these actions or this language.”

He added: “This is elections. This is the backbone of democracy, and all of you who have not said a damn word are complicit in this. It’s too much.”

Mr. Sterling’s outburst of anger and frustration came amid a sustained assault on Georgia’s election process by Mr. Trump as he seeks to reverse his loss to his Democratic rival, former Vice President Joseph R. Biden Jr. Mr. Sterling, who previously said he had received threats himself, said that threats had also been made against the wife of his superior, Brad Raffensperger, the Republican secretary of state.

“Mr. President, it looks like you likely lost the state of Georgia,” Mr. Sterling said. He added that the president needed to “step up” and say, “Stop inspiring people to commit potential acts of violence. Someone is going to get hurt, someone is going to get shot, someone is going to get killed. And it’s not right.”

Mr. Sterling also called on the state’s two Republican senators, David Perdue and Kelly Loeffler, to condemn the rhetoric that he said was getting dangerously out of hand. The two senators, both Trump loyalists, have called for Mr. Raffensperger to resign.

 

November

Nov. 30

ny times logoNew York Times, Justice Barrett’s Vote Could Tilt the Supreme Court on Gun Rights, Adam Liptak, right, Nov. 30, 20200 (print ed.). Conservative justices are adam liptakon alert for a promising case in which to expand Second Amendment rights. Justice Amy Coney Barrett could shift the balance.

A Second Amendment case decided last week by the federal appeals court in Philadelphia is a promising candidate for Supreme Court review, not least because it presents an issue on which Justice Barrett, left, has already taken a stand.

amy coney barrett headshot notre dame photoIt concerns Lisa M. Folajtar, who would like to buy a gun. But she is a felon, having pleaded guilty to tax evasion, which means under federal law she may not possess firearms.

She sued, arguing that the law violated her Second Amendment rights. A divided three-judge panel of appeals court rejected her challenge, saying that committing a serious crime has consequences. It can lead to losing the right to vote, to serve on a jury — or to have a gun.

The ruling adopted the position of the Trump Justice Department. “The right to keep and bear arms is analogous to other civic rights that have historically been subject to forfeiture by individuals convicted of crimes, including the right to vote, the right to serve on a jury and the right to hold public office,” lawyers for Attorney General William P. Barr told the appeals court.

stephanos bibasIn dissent, Judge Stephanos Bibas, right, a former law professor appointed to the court by President Trump (and the author of a scathing decision on Friday rejecting the president’s challenge to the election results in Pennsylvania), wrote that the framers of the Constitution would not have allowed lawmakers to bar felons convicted of nonviolent crimes from owning guns.

“Lisa Folajtar asks us to treat her as an equal member of society,” he wrote. “Though her tax-fraud conviction affects some of her privileges, it does not change her right to keep and bear arms.”

Nov. 29

washington post logoWashington Post, 20 days of fantasy and failure: Inside Trump’s quest to overturn the election, Philip Rucker, Ashley Parker, Josh Dawsey and Amy Gardner, Nov. 29, 2020 (print ed.). With his denial of his loss to Joe Biden, President Trump endangered America’s democracy and threatened to undermine national security and public health. All the while, he largely abdicated the responsibilities of the job he was fighting so hard to keep.

washington post logoWashington Post, Pennsylvania Supreme Court dismisses lawsuit against mail ballots with prejudice in another defeat for Trump, Elise Viebeck, Nov. 29, 2020 (print ed.). The Pennsylvania Supreme Court dismissed with prejudice a Republican lawsuit seeking to invalidate more than 2.5 million votes cast by mail in the general election, the latest in a string of legal defeats for the GOP as President Trump fails to undo his losses in key battleground states.

Justices on the state high court ruled unanimously late Saturday that Republican petitioners waited too long to file their suit challenging Act 77, the 2019 law that established universal mail voting in Pennsylvania. Trump allies had asked the court to invalidate all votes cast by mail in the most recent election or direct the majority-Republican legislature to choose a slate of presidential electors. The ruling with prejudice means that the plaintiffs are barred from bringing another action on the same claim.

The court’s written order called the latter option “extraordinary,” noting that it would disenfranchise 6.9 million voters.

“The want of due diligence demonstrated in this matter is unmistakable,” the justices wrote, noting that the lawsuit was filed “more than one year” after no-excuse mail voting was enacted in Pennsylvania. The order blamed petitioners for a “complete failure to act with due diligence in commencing their facial constitutional challenge, which was ascertainable upon Act 77’s enactment.”

Concurring, Justice David N. Wecht noted that the GOP petitioners “failed to allege that even a single mail-in ballot was fraudulently cast or counted.”

Legal experts had predicted little chance of success for the suit, which also sought to block certification of election results. Trump and his allies have gained no substantive traction with more than two dozen cases trying to undermine President-elect Joe Biden’s win since Election Day.

The ruling followed a procedural setback for the petitioners on Wednesday, when a temporary order blocking further certification of election results was stayed on appeal from state officials who already had formalized Biden’s win the previous day. The state asked the Pennsylvania Supreme Court to exercise extraordinary jurisdiction in the case, a request it granted as part of Saturday night’s order.

washington post logoWashington Post, For Trump advocate Sidney Powell, a playbook steeped in conspiracy theories, Aaron C. Davis, Josh Dawsey, Emma Brown and Jon Swaine, Nov. 29, 2020 (print ed.). The appellate lawyer has emerged as a key voice on the far right, becoming a leading purveyor of outlandish allegations about the election.

She zipped through classes at the University of North Carolina, earning her diploma in less than two years. She added a law degree and in her early 20s became, she has often said, the youngest federal prosecutor in the country.

And when Sidney Powell — then a Democrat — moved into private practice, she co-wrote a paper hailed as a “manual” for deciphering sometimes-arcane appellate rules, salting in advice for fellow attorneys: Never “slant” the truth to benefit a client. “To write anything less than an accurate statement of facts can cost an attorney credibility with the court,” she wrote.

sidney powellFast forward two decades — through a bitter case she says shook her faith in the U.S. justice system — and there was Powell, right, at a lectern at the headquarters of the Republican National Committee, introduced as an attorney representing President Trump.

At the Nov. 19 news conference, before a national television audience, she asserted that “communist money,” the late Venezuelan president Hugo Chávez and a manipulated computer algorithm were all connected in a secret plot that had altered potentially millions of ballots and stolen the election from Trump.

Powell did not stop there. In an interview two days later with the conservative outlet Newsmax, she said she had been given evidence — which she said she could not disclose — that Georgia Gov. Brian Kemp, a Republican and an ally of the president, had taken bribes and conspired to orchestrate Trump’s defeat. Nationwide, she estimated that “thousands” of local elections officials knowingly helped carry out the master scheme to tamper with ballots. In fact, Powell claimed, if anyone bothered to look, they’d probably find that U.S. elections had been rigged for decades.

In important places, the headspinning allegations did not land well.

Trump watched from the White House as his usual cast of sympathetic proxies — including Fox News’s Tucker Carlson and former New Jersey governor Chris Christie — turned on Powell, according to an official familiar with the events, who like others interviewed for this report spoke on the condition of anonymity to describe confidential or private interactions at the White House and at Trump’s campaign offices. On ABC’s Sunday talk show, Christie said Powell’s comments had tipped the president’s legal efforts to challenge the outcome of the election into a “national embarrassment.”

In calls to the White House, several GOP senators warned that Powell seemed unhinged, two officials said.

ny times logoNew York Times, Even as Trump Claimed Fraud, These Republicans Didn’t Bend, Peter Baker and Kathleen Gray, Nov. 29, 2020 (print ed.). They refuted conspiracy theories, certified results, dismissed lawsuits and repudiated a president of their own party.

If the president hoped Republicans across the country would fall in line behind his false and farcical claims that the election was somehow rigged on a mammoth scale by a nefarious multinational conspiracy, he was in for a surprise. Republicans in Washington may have indulged Mr. Trump’s fantastical assertions, but at the state and local level, Republicans played a critical role in resisting the mounting pressure from their own party to overturn the vote after Mr. Trump fell behind on Nov. 3.

The three weeks that followed tested American democracy and demonstrated that the two-century-old system is far more vulnerable to subversion than many had imagined even though the incumbent president lost by six million votes nationwide. But in the end, the system stood firm against the most intense assault from an aggrieved president in the nation’s history because of a Republican city clerk in Michigan, a Republican secretary of state in Georgia, a Republican county supervisor in Arizona and Republican-appointed judges in Pennsylvania and elsewhere.

They refuted conspiracy theories, certified results, dismissed lawsuits and repudiated a president of their own party, leaving him to thunder about a supposed plot that would have had to include people who had voted for him, donated to him or even been appointed by him. The desperate effort to hang onto office over the will of the people effectively ended when his own director of the General Services Administration determined that Joseph R. Biden Jr. stephanos bibasis the president-elect and a judge Mr. Trump put on the bench chastised him for ludicrous litigation.

“Free, fair elections are the lifeblood of our democracy,” Judge Stephanos Bibas, right, appointed by Mr. Trump in 2017, wrote for a three-judge panel of the Third Circuit Court of Appeals in Philadelphia on Friday as it dismissed the latest of dozens of legal claims filed by Mr. Trump and his allies. “Charges of unfairness are serious. But calling an election unfair does not make it so. Charges require specific allegations and then proof. We have neither here.”

 

ny times logoNew York Times, Top Contenders for Biden’s Cabinet Draw Fire From All Sides, Michael D. Shear and Jonathan Martin, Nov. 29, 2020 (print ed.). There are leading candidates and dark horses. There are potential roadblocks from progressives and conservatives. And there are competing factions.

Aides to Mr. Biden who are managing the selection process are revealing little about whom he intends to choose. And yet, as is typical in Washington in the early days of a transition, the names of those the president-elect is said to be considering are a frequent source of discussion. This time, the gossip is spreading via Zoom calls, Twitter posts and encrypted text messages sent by lawmakers, lobbyists and political consultants.

Whom Mr. Biden will tap to be the next attorney general is among the most talked about — and politically fraught — decisions that the president-elect will make as civil rights issues roil the country and some Democrats expect investigations into President Trump and his associates.

sally yates oSally Q. Yates, left, the deputy attorney general in the final years of the Obama administration, had long been considered the front-runner. Mr. Biden is close to her and has told friends that he could imagine her as the nation’s top law enforcement official. But some advisers fear that Republicans would block her nomination because of her refusal to defend Mr. Trump’s first travel ban and her role in the early stages of the investigations into his campaign and associates.

Mr. Biden could instead pick Lisa Monaco, the former homeland security adviser for President Barack Obama who was a finalist in 2013 to be deval patrick oF.B.I. director. And like Ms. Yates, she worked well with Mr. Biden when he was vice president.

But both women are up against Deval Patrick, right, the former Massachusetts governor who served as the head of the department’s civil rights division in the Clinton administration and would be the second Black man to be attorney general.

us senate logoThe president-elect’s aides see civil rights issues as a far more deep-seated problem than simply one that has arisen because of Mr. Trump. The aides believe that Mr. Patrick’s experience at the NAACP Legal Defense and Educational Fund Inc. and his stewardship of the department’s civil rights division positions him to take on that issue.

Others around the president-elect are not eager to reward Mr. Patrick, who jumped into the Democratic nomination last year to challenge Mr. Biden as a politically moderate answer to the party’s more liberal candidates.

Xavier Becerra, the attorney general of California, is also under consideration for attorney general.

ap logoAssociated Press via Washington Post, High court takes up census case, as other count issues loom, Mike Schneider and Mark Sherman, Nov. 29, 2020 (print ed.). President Donald Trump’s attempt to exclude people living in the country illegally from the population count used to divvy up congressional seats is headed for a post-Thanksgiving Supreme Court showdown.

The administration’s top lawyers are hoping the justices on a court that includes three Trump appointees will embrace the idea, rejected repeatedly by lower courts. It’s the latest, and likely the last, Trump administration hard-line approach to immigration issues to reach the high court. Arguments will take place on Monday by telephone because of the coronavirus pandemic.

Even as the justices weigh a bid to remove, for the first time, millions of noncitizens from the population count that determines how many seats each state gets in the House of Representatives as well as the allocation of some federal funding, experts say other issues loom large for the 2020 census as it heads into unchartered territory over deadlines, data quality and politics.

A host of novel questions outside of the court’s eventual decision could determine the final product of the nation’s once-a-decade head count, including whether the incoming Biden administration would do anything to try to reverse decisions made under Trump.

Among other questions: Will the Census Bureau be able to meet a year-end deadline for turning in the numbers used for apportionment, the process of dividing up congressional seats among the states? Will the quality of the census data be hurt by a shortened schedule, a pandemic and natural disasters? Could a Democratic-controlled House reject the numbers from the Republican administration if House leaders believe they are flawed? Will a lame-duck Senate pass legislation that could extend deadlines for turning in census numbers?

Nov. 27

  us dc federal courthouse Small

The Barrett Prettyman, Jr. federal courthouse in Washington, DC.

washington post logoWashington Post, Opinion: Emmet Sullivan’s handling of the Michael Flynn case is vindicated, Elliot Williams, Nov. 27, 2020. Elliot Williams was a deputy assistant attorney general at the Justice Department from 2013 to 2017.

President Trump’s pardon of former national security adviser Michael Flynn didn’t merely save one man from going to federal prison. Far more importantly, the pardon demonstrated the wisdom of U.S. District Judge Emmet G. Sullivan’s refusal to dismiss the case against Flynn. In the end, the judge’s steadfastness saved the Justice Department from itself — or at least from its attorney general.

Michael Flynn Harvard 2014Flynn, right, was one of six associates of the president who were investigated and charged with federal crimes as part of special counsel Robert S. Mueller III’s inquiry into Russian interference in the 2016 campaign. In open court, Flynn entered a knowing, voluntary and intelligent guilty plea to a felony charge for lying about his substantive contacts with the Russian ambassador to the United States. However, last May, acting on instructions from Attorney General William P. Barr, the Justice Department did a startling about-face in the case, seeking to dismiss it by arguing in court that prosecutors should never have brought the case in the first place.

Enter Sullivan, below left, — a judge before whom I have appeared, and who I can attest is not one to suffer fools. He declined to dismiss the case, instead bringing in an outside adviser who argued that the Justice Department’s argument smelled curiously like pretext for seeking to dismiss emmet sullivan 2012the case to benefit a political ally of the president.

Sullivan’s healthy skepticism of the Justice Department’s arguments ensured that the branches of our government functioned as they were supposed to, and that no one branch was allowed to hide from the costs of its actions. The president and his allies have repeatedly attacked the special counsel’s investigation from its earliest days, characterizing it as a partisan witch hunt fixated on Trump’s undoing. Once Flynn was charged, it was only a matter of when, not if, the president would pardon him.

The decision to withdraw charges can only be explained, then, as an attempt by the president and attorney general to produce the effect of a pardon (that is, vacating a criminal conviction), without incurring any of the natural political costs of granting a pardon.

Presidential acts of clemency can carry political costs: George W. Bush’s commutation of I. Lewis “Scooter” Libby’s prison term, Bill Clinton’s pardon of Marc Rich, and George H.W. Bush’s pardon of Caspar Weinberger still linger over the three presidents’ legacies. Such is the cost of exercising unreviewable power.

However, passing the Flynn pardon off onto the Justice Department would have been an attempt to deputize prosecutors in carrying out a political favor for the president. It would have hidden political cronyism in the dry, apolitical packaging of legalese.

Sullivan had to have known this. By rejecting the Justice Department’s attempts to get out of the case, he was not digging in to stick it to a defendant he might have thought was guilty. He was protecting the justice system as an institution, ensuring that it wasn’t perverted by the Trump administration and the attorney general.

amy coney barrett cnbc

ny times logoNew York Times, Analysis: Midnight Ruling Exposes Rifts at a Supreme Court Transformed by Trump, Adam Liptak, right, Nov. 27, 2020 (print ed.). The justices issued six opinions, adam liptakseveral of them unusually bitter, in upholding challenges from churches and synagogues to state pandemic restrictions on religious services. A few minutes before midnight on Wednesday, the nation got its first glimpse of how profoundly President Trump had transformed the Supreme Court.

Just months ago, Chief Justice John G. Roberts Jr. was at the peak of his power, holding the controlling vote in closely divided cases and almost never finding himself in dissent. But the arrival of Justice Amy Coney Barrett late last month, which put a staunch conservative in the seat formerly held by the liberal mainstay, Justice Ruth Bader Ginsburg, meant that it was only a matter of time before the chief justice’s leadership would be tested.

On Wednesday, Justice Barrett (shown above) dealt the chief justice a body blow. She cast the decisive vote in a 5-to-4 ruling that rejected restrictions on religious services in New York imposed by Gov. Andrew M. Cuomo to combat the coronavirus, shoving the chief justice into dissent with the court’s three remaining liberals. It was one of six opinions the court issued on Wednesday, spanning 33 pages and opening a window on a court in turmoil.

The ruling was at odds with earlier ones in cases from California and Nevada issued before Justice Ginsburg’s death in September. Those decisions upheld restrictions on church services by 5-to-4 votes, with Chief Justice Roberts in the majority. The New York decision said that Mr. Cuomo’s strict virus limits — capping attendance at religious services at 10 people in “red zones” where risk was highest, and at 25 in slightly less dangerous “orange zones” — violated the First Amendment’s protection of the free exercise of religion.

Wednesday’s ruling was almost certainly a taste of things to come. While Justice Ginsburg was alive, Chief Justice Roberts voted with the court’s four-member liberal wing in cases striking down a restrictive Louisiana abortion law, blocking a Trump administration initiative that would have rolled back protections for young immigrants known as Dreamers, refusing to allow a question on citizenship to be added to the census and saving the Affordable Care Act.

Chief Justice Roberts is fundamentally conservative, and his liberal votes were rare. But they reinforced his frequent statements that the court is not a political body. The court’s new and solid conservative majority may send a different message.

That said, the court’s dynamics can be complicated, and not all decisions break along predictable lines. For instance, while Chief Justice Roberts has lost his place at the court’s ideological center, his replacement, Justice Brett M. Kavanaugh, Mr. Trump’s second appointee, values consensus and may turn out to be an occasional ally.

 ny times logoNew York Times, Senate Democrats Face Power Struggle for Top Judiciary Job, Carl Hulse, Nov. 27, 2020 (print ed.). Senators Richard J. Durbin and Sheldon Whitehouse are vying to be the top Democrat on the panel that controls judicial nominations, reflecting a broader debate among activists about how to wield power.

As soon as Senator Richard J. Durbin of Illinois learned officially on Monday that there would be a Democratic opening at the top of the Judiciary Committee, he was on the phone to his colleagues trying to nail down their support for the position.

dick durbin speaking screenshot“Never take anything for granted,” Mr. Durbin, right, said of his bid to replace Senator Dianne Feinstein of California, who stepped aside as the senior Democrat on the panel under intense pressure from progressive activists who deemed her insufficiently aggressive for the job. “I have been through these contests before.”

One fellow Democrat whom Mr. Durbin did not talk to was Senator Sheldon Whitehouse of Rhode Island, left, who made clear by the next afternoon that he was also interested in the job. Some of the same progressive activists who pressed to shove Ms. Feinstein aside said they would be backing him.

sheldon whitehouseThe competition set up a rare internal power struggle that reflected broader disputes among Democrats over the direction and approach of their party in a new Congress. As they sort through the results of the election, which handed them control of the White House but left their hopes of taking the Senate hanging by a thread, some are pushing for a new, more combative style and generational change.

Depending on the results of two Senate runoffs in Georgia in January, whoever wins the battle for the post will be either the chairman of the panel or the senior Democrat, with a crucial role to play on a panel that Republicans have turned into a judicial confirmation assembly line.

Mr. Durbin is the next in line behind Ms. Feinstein on the committee, and Democrats generally adhere to seniority when awarding such posts. The tension in this case partly comes from the fact that Mr. Durbin is already the No. 2 leader and holds an important subcommittee chairmanship on the Appropriations panel, which controls federal spending. To some, he is trying to hoard power, potentially at the expense of his own effectiveness in either job.

Members of both parties have viewed Mr. Durbin as an effective advocate for committee Democrats who have chafed at the way Republicans have jammed through nominees in recent years.

“Believe me, I wouldn’t take this on if I didn’t think I could do the job,” he said in an interview this week.

Under Republican control since 2015, the committee has been the focal point for that party’s drive to confirm more than 220 conservative federal judges, including three Supreme Court justices and 53 appeals court judges.

Against that backdrop, Mr. Whitehouse, 65, who declined to be interviewed for this article, has charted out how a network of advocacy groups has taken money from undisclosed donors to support the confirmation of conservative judges who are seen as potentially sympathetic to their interests.

During the confirmation hearing for Judge Amy Coney Barrett in October, Mr. Whitehouse devoted his first round of questioning to laying out his case and telling her that she needed to understand the “forces outside of this room who are pulling strings and pushing sticks and causing the puppet theater to react.”

Nov. 26

michael flynn djt