U.S. High Courts, Cases 2020

 

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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

July

July 6

supreme court headshots 2019

washington post logoWashington Post, Supreme Court says presidential electors can be required to back their states’ popular-vote winner, Robert Barnes, July 6, 2020. Colorado and Washington state officials had asked the court to settle the matter in case the November election is so close that a small number of what are sometimes called “faithless electors” could determine the result. The Supreme Court ruled unanimously Monday that states may require presidential electors to support the winner of the popular vote and punish or replace those who don’t, settling a disputed issue in advance of this fall’s election.

Elena Kagan O HRJustice Elena Kagan, right, wrote for the court, and settled the disputed “faithless elector” issue before it affected the coming presidential contest.

The Washington state law at issue “reflects a tradition more than two centuries old,” she wrote. “In that practice, electors are not free agents; they are to vote for the candidate whom the state’s voters have chosen.”

Lower courts had split on the issue, with one saying the Constitution forbids dictating how such officials cast their ballots.

Both red and blue states urged the justices to settle the matter in advance of the “white hot” glare of the 2020 election. They said they feared a handful of independent-minded members of the electoral college deciding the next president.

The court considered cases from the state of Washington and Colorado. Washington moved to fine Peter Bret Chiafalo and two others $1,000 after they voted for Colin Powell when the electoral college convened after the 2016 election. They had pledged to vote for Hillary Clinton, who won the state’s popular vote.

Colorado replaced Micheal Baca when he said he intended to vote for Republican John Kasich instead of Clinton, who won his state. Baca was part of a movement to try to deny Donald Trump the presidency.

U.S. Prisons, Courts, Crime

washington post logoWashington Post, Opinion: It’s not just policing that needs reform. Prisons need it, too, Steve J. Martin, July 6, 2020 (print ed.). The urgent national demand for an end to police brutality is long overdue. But violence does not stop at the jailhouse gates. Excessive and even lethal force is all too common behind those bars as well.

I have spent 50 years working in correctional settings across the country — starting as a prison guard in Texas and then as a corrections use-of-force expert and court monitor. This I know: Institutional brutality is deeply ingrained and persistent in this country.

Correctional officers routinely employ tasers, stun shields, pepper-ball and gas guns, restraint chairs, expandable batons, attack dogs and even their own fists and feet to subdue inmates. This results in bruises, lacerations, fractured limbs, chemical burns, perforated ear drums, severe concussions and injuries to internal organs. All too often these injuries result in needless death.

Officers are authorized to use necessary and proportionate force to control dangerous inmates. But it happens with frightening frequency, even in response to less threatening behaviors — refusing to immediately hang up a phone, possessing a nuisance contraband, complaining about not receiving visits or privileges or medications. Prison employees also use force to maliciously punish prisoners who anger them.

In death cases I have investigated, the prisoners who died were disproportionately black. Many also had mental impairments.

Steve J. Martin worked as a corrections expert for the Justice Department and Department of Homeland Security and as a federal monitor in class-action lawsuits. He is the federal court monitor for litigation involving use of force at New York’s Rikers Island jails.

washington post logoWashington Post, Man whose wrongful conviction revealed FBI forensic flaws dies at 59, Spencer S. Hsu, July 6, 2020 (print ed.). Santae A. Tribble, whose wrongful conviction for a 1978 murder in Southeast Washington exposed decades of exaggerated claims about the reliability of FBI forensic hair matches, has died, his family said. Tribble, 59, died June 24 in Washington after a lengthy illness attributed to his incarceration, said his son, Santae Tribble Jr.

FBI logoTribble was exonerated in 2012 after serving 28 years in prison for the killing of a D.C. taxi driver, who died when Tribble was 17.

DNA testing revealed that Tribble could not have contributed hairs found in what police said was a stocking mask worn by the attacker and left near the crime scene — even though at trial, the FBI declared the hairs microscopically matched Tribble’s, and prosecutors suggested the odds of a mismatch were “one . . . in 10 million.”

Tribble’s case and others uncovered by the D.C. Public Defender Service and featured in articles in The Washington Post helped trigger a federal review that in 2015 disclosed FBI examiners systematically overstated testimony in almost all trials in which they offered hair evidence against criminal defendants for two decades before 2000.

July 4

washington post logoWashington Post, Opinion: Don’t upset yourselves, conservatives. John Roberts is in it for the long haul, Ruth Marcus, right, July 4, 2020 (print ed.). Roberts has famously, and somewhat ruth marcus twitter Customfacilely, likened the judge’s role to that of umpire, objectively calling balls and strikes. Yet a few surprising calls shouldn’t obscure his overall sense of the john roberts ostrike zone.

And to switch sports metaphors, he is moving the ball steadily down the constitutional field, toward the conservative end zone.

Of the dozen 5-to-4 cases decided by the Supreme Court this term, Roberts (shown at left) is the only justice to have been in the majority each time. He sided with the liberals just twice.

It’s worth noting that Roberts’s episodic deviations from conservative orthodoxy have tended to involve laws and regulations — cases where Congress or the executive branch can fix anything they think the court got wrong — more often than constitutional interpretation, where the court gets the last say.

Make no mistake: This is a justice in for the long haul, and steering in a conservative direction.

July 2

ny times logoNew York Times, Opinion: How Chief Justice Roberts Solved His Abortion Dilemma, Linda Greenhouse, shown on the cover of her memoir, July 2, 2020 (print ed.). For the moment, the right to choose linda greenhouse cover just a journalistis safe. But the outlook is ominous. Here’s a thought experiment. You’re John Roberts, not only the chief justice of the United States but the head of the entire federal judicial branch. After 15 years on the job, you find yourself in an exquisitely tough spot.

On the one hand, you’re confronted with a rogue court — the United States Court of Appeals for the Fifth Circuit, one of the 13 appeals courts that, like all “lower” federal courts, are bound to follow the law as the Supreme Court hands it to them.

john roberts oFour years earlier, your court reversed the Fifth Circuit and ruled that a Texas law imposed an unconstitutional “undue burden” on women’s access to abortion.And what did the Fifth Circuit turn around and do? It upheld an identical law in Louisiana on the ground that, well, Texas was Texas and Louisiana wasn’t. Clearly, you can’t ignore such blatant defiance.

On the other hand, you dissented four years ago from that decision, Whole Woman’s Health v. Hellerstedt. You didn’t like it then and you don’t like it now. You found it unduly solicitous of the right to abortion as the Supreme Court had narrowed and reinterpreted that right nearly a generation after Roe v. Wade, in Planned Parenthood v. Casey in 1992.

Justice Stephen Breyer wrote the majority opinion that struck down the Texas law and now he’s used the same analytical tools to declare the Louisiana law unconstitutional. If you join his opinion, you’ll be perpetuating what you regard as a serious error of constitutional interpretation. But you can’t join the four colleagues who are voting in dissent without rewarding the Fifth Circuit’s defiance.

June

June 30

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 washington post logoWashington Post, Analysis: With abortion ruling, Roberts reasserts his role and Supreme Court’s independence, Robert Barnes, June 30, 2020 (print ed.). Every Supreme Court decision seems to confirm Chief Justice John G. Roberts Jr.’s pivotal role at the center of the court, and Monday’s ruling on abortion showed that restrictions on a woman’s right to the procedure for now will go only as far as the chief justice allows.In a remarkable stretch of decisions over the past two weeks,

Roberts has dismayed conservatives and the Trump administration by finding that federal anti-discrimination law protects gay, bisexual and transgender workers and stopping the president from ending the federal program that protects undocumented immigrants brought here as children.In Monday’s decision, he said the court’s allegiance to honoring its past decisions meant striking down a Louisiana law almost identical to one from Texas that the court said in 2016 was unconstitutional. The twist is that Roberts was a dissenter then.

ny times logoNew York Times, Editorial: John Roberts Is No Pro-Choice Hero, Editorial Board, June 30, 2020 (print ed.). The latest Supreme Court decision sets the stage for further attacks on abortion rights. Chief Justice Roberts’s decision to concur with the four liberal justices may enrage cultural conservatives who thought that with the confirmation of Justice Brett Kavanaugh, ending the right to an abortion was just a matter of time.

But the chief justice rarely takes the direct route, preferring incremental rulings that slowly chip away at the court’s longstanding precedents. So no one should be fooled this time around: The current court is as hostile to reproductive freedom as it ever was.

And Chief Justice Roberts left himself plenty of room to vote differently in any of the many cases now speeding toward the court, involving challenges to other state laws that make it difficult if not impossible for most women to obtain an abortion.

Reuters, Investigation: Objections Overruled: Thousands of U.S. judges who broke laws or oaths remained on the bench, Michael Berens and John Shiffman, June 30, 2020. In the past dozen years, state and local judges have repeatedly escaped public accountability for misdeeds that have victimized thousands. Nine of 10 kept their jobs, a Reuters investigation found – including an Alabama judge who unlawfully jailed hundreds of poor people, many of them Black, over traffic fines.

Judge Les Hayes once sentenced a single mother to 496 days behind bars for failing to pay traffic tickets. The sentence was so stiff it exceeded the jail time Alabama allows for negligent homicide.

Marquita Johnson, who was locked up in April 2012, says the impact of her time in jail endures today. Johnson’s three children were cast into foster care while she was incarcerated. One daughter was molested, state records show. Another was physically abused.

“Judge Hayes took away my life and didn’t care how my children suffered,” said Johnson, now 36. “My girls will never be the same.”

Fellow inmates found her sentence hard to believe. “They had a nickname for me: The Woman with All the Days,” Johnson said. “That’s what they called me: The Woman with All the Days. There were people who had committed real crimes who got out before me.”

In 2016, the state agency that oversees judges charged Hayes with violating Alabama’s code of judicial conduct. According to the Judicial Inquiry Commission, Hayes broke state and federal laws by jailing Johnson and hundreds of other Montgomery residents too poor to pay fines. Among those jailed: a plumber struggling to make rent, a mother who skipped meals to cover the medical bills of her disabled son, and a hotel housekeeper working her way through college.

Hayes, a judge since 2000, admitted in court documents to violating 10 different parts of the state’s judicial conduct code. One of the counts was a breach of a judge’s most essential duty: failing to “respect and comply with the law.”

Despite the severity of the ruling, Hayes wasn’t barred from serving as a judge. Instead, the judicial commission and Hayes reached a deal. The former Eagle Scout would serve an 11-month unpaid suspension. Then he could return to the bench.

Until he was disciplined, Hayes said in an interview with Reuters, “I never thought I was doing something wrong.”

This week, Hayes is set to retire after 20 years as a judge. In a statement to Reuters, Hayes said he was “very remorseful” for his misdeeds.

Community activists say his departure is long overdue. Yet the decision to leave, they say, should never have been his to make, given his record of misconduct.

“He should have been fired years ago,” said Willie Knight, pastor of North Montgomery Baptist Church. “He broke the law and wanted to get away with it. His sudden retirement is years too late.”

Hayes is among thousands of state and local judges across America who were allowed to keep positions of extraordinary power and prestige after violating judicial ethics rules or breaking laws they pledged to uphold, a Reuters investigation found.

Methodology and Q&A: How we examined misconduct

Judges have made racist statements, lied to state officials and forced defendants to languish in jail without a lawyer – and then returned to the bench, sometimes with little more than a rebuke from the state agencies overseeing their conduct.

Recent media reports have documented failures in judicial oversight in South Carolina, Louisiana and Illinois. Reuters went further.

In the first comprehensive accounting of judicial misconduct nationally, Reuters reviewed 1,509 cases from the last dozen years – 2008 through 2019 – in which judges resigned, retired or were publicly disciplined following accusations of misconduct. In addition, reporters identified another 3,613 cases from 2008 through 2018 in which states disciplined wayward judges but kept hidden from the public key details of their offenses – including the identities of the judges themselves.

All told, 9 of every 10 judges were allowed to return to the bench after they were sanctioned for misconduct, Reuters determined. They included a California judge who had sex in his courthouse chambers, once with his former law intern and separately with an attorney; a New York judge who berated domestic violence victims; and a Maryland judge who, after his arrest for driving drunk, was allowed to return to the bench provided he took a Breathalyzer test before each appearance.

The news agency’s findings reveal an “excessively” forgiving judicial disciplinary system, said Stephen Gillers, a law professor at New York University who writes about judicial ethics. Although punishment short of removal from the bench is appropriate for most misconduct cases, Gillers said, the public “would be appalled at some of the lenient treatment judges get” for substantial transgressions.

Among the cases from the past year alone...

ny times logoNew York Times, Young Women Are Ambivalent About Their Role in Abortion Rights Fight, Emma Goldberg, June 30, 2020. Some, raised in a post-Roe world, do not feel the same urgency toward abortion as they do for other social justice causes.

Like many young Americans, Brea Baker experienced her first moment of political outrage after the killing of a Black man. She was 18 when Trayvon Martin was shot. When she saw his photo on the news, she thought of her younger brother, and the boundary between her politics and her sense of survival collapsed.

In college she volunteered for the N.A.A.C.P. and as a national organizer for the Women’s March.

But when conversations among campus activists turned to abortion access, she didn’t feel the same sense of personal rage.

“A lot of the language I heard was about protecting Roe v. Wade,” Ms. Baker, 26, said. “It felt grounded in the ’70s feminist movement. And it felt like, I can’t focus on abortion access if my people are dying. The narrative around abortion access wasn’t made for people from the hood.”

June 29

Top Stories supreme court headshots 2019

 ny times logoNew York Times, Supreme Court Strikes Down Louisiana Abortion Restrictions, Adam Liptak, June 29, 2020. First Abortion Ruling Since 2 New Conservatives Joined Court.The Supreme Court struck down a Louisiana law that could have left the state with a single abortion clinic. The vote was 5 to 4, with Chief Justice John G. Roberts Jr., right, voting with the court’s liberal wing, saying respect for precedent compelled his vote.

john roberts oThe law’s supporters said the law protects the health and safety of women seeking abortions, and that the requirements for obtaining admitting privileges helps ensure the competence of doctors.

Opponents disputed that, saying that hospitalizations after abortions are rare, that women would receive medical care at hospitals whether their doctors had admitting privileges or not and that abortion providers are often unable to obtain admitting privileges for reasons unrelated to their competence.

The Louisiana law, which was enacted in 2014, requires doctors performing abortions to have admitting privileges at nearby hospitals.Only two of the five doctors who provide abortions in Louisiana have obtained admitting privileges, one in New Orleans and one in Shreveport. But the Shreveport doctor testified that he could not handle the clinic’s work alone. If the law went into effect, a trial judge concluded, there would be a single doctor in a single clinic, in New Orleans, available to provide abortions in Louisiana.

Related story: 

washington post logoWashington Post, Supreme Court strikes down restrictive Louisiana abortion law that would have closed clinics, June 29, 2020.  Robert Barnes, June 29, 2020.The Louisiana law was virtually identical to a Texas statute the Supreme Court struck down in 2016. But the court’s membership has grown more conservative since then, and partisans on both sides of the controversial issue saw the case as a test of whether the court is going to stand by its precedents on abortion rights.

washington post logoWashington Post, Russian bounties to Taliban-linked militants resulted in deaths of U.S. troops, intelligence assessments say, Ellen Nakashima, Karen DeYoung, Missy Ryan and John Hudson, June 29, 2020 (print ed.). The disturbing intelligence — which the CIA was tasked with reviewing, and later confirmed — emerged from U.S. military interrogations in recent months. The issue has generated disagreement within the Trump administration about how to confront the Russians.

washington post logoWashington Post, Trump says U.S. intelligence did not find reports of Russian bounties credible, John Wagner and Ellen Nakashima, June 29, 2020 (print ed.). President Trump said late President Donald Trump officialSunday that he was not told of intelligence that a Russian military spy unit offered bounties to Taliban-linked militants to attack coalition forces in Afghanistan, including U.S. troops, because U.S. intelligence officials did not find it credible.

“Intel just reported to me that they did not find this info credible, and therefore did not report it to me or @VP,” Trump said in a tweet, referring to Vice President Pence. He added that he considers such reports “possibly another fabricated Russia Hoax” spread by the “Fake News ... wanting to make Republicans look bad!!!”Earlier Sunday,

Trump had tweeted that he had not been briefed about the intelligence, but he did little to clarify whether the administration was denying that the assessment existed or simply denying that he knew anything about it.

washington post logoWashington Post, Suspect in custody after shooting at Louisville rally,  Josh Wood, Robert Klemko, Roman Stubbs and Ava Wallace, June 29, 2020. Police said the suspect had been arrested several times in recent weeks and had been asked to leave the park by other protesters because of his “disruptive behavior.”  

Virus Victims, Responses

djt virus news conference nyt photo Custom

washington post logoWashington Post, Live updates: Global death toll from coronavirus surpasses half a million, Antonia Noori Farzan, Rick Noack, Meryl Kornfield, Lateshia Beachum, Brittany Shammas and Adam Taylor, June 29, 2020. Reported cases of covid-19 worldwide passed the 10 million milestone on June 28. India and Brazil accounted for more than a third of new cases in the past covad 19 photo.jpg Custom 2week. (Reuters).

The global community marked yet another grim milestone on Sunday as the confirmed worldwide death count from the novel coronavirus surpassed 500,000, according to data compiled by Johns Hopkins University.

That tally is just the latest reminder of the pandemic’s brutal toll. Earlier in the day, the total number of coronavirus cases reported in the United States topped 2.5 million amid worsening outbreaks in Florida, Texas and Arizona. Over the weekend, the number of coronavirus cases reported worldwide soared past 10 million.

Ron De santis oHere are some significant developments: 

  • Anthony S. Fauci (shown above in a group file photo at a White House briefing), the nation’s top infectious-disease expert, told CNN on Sunday that an eventual vaccine for the coronavirus may not be enough to achieve herd immunity in the United States. 
  • In Florida, where the seven-day average of new cases has hit new highs for 21 days in a row, Gov. Ron DeSantis (R), right, said that young people who ignore social distancing rules were largely to blame for the rise in infections.   
  • Vice President Pence, speaking Sunday in Dallas, urged Americans to wear face masks. During the same visit, he attended a rally where dozens of choir members performed without masks on.
  •  As new coronavirus cases continue to rise in California, Gov. Gavin Newsom (D) has shut down bars in some areas of the state, including Los Angeles.
  • A Chinese county southwest of Beijing has imposed a new lockdown amid concerns that an outbreak of the coronavirus linked to a major market in the capital may have spread more german flagwidely.
  • The German labor union Verdi said Sunday that employees at six Amazon locations in Germany would go on strike Monday for at least two days amid concerns that the company is not sufficiently addressing health safety concerns amid the pandemic.   

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Washington Post, This coronavirus mutation has taken over the world. Scientists are trying to understand why, Sarah Kaplan and Joel Achenbach, June 29, 2020. A mutation that seems trivial could be making the virus spread more easily and is associated with outbreaks in Europe and New York. 

More U.S. Supeme Court Rulings

ny times logoNew York Times, Court Lifts Limits on Trump’s Power to Fire Consumer Watchdog, Adam Liptak, right, June 29, 2020. The case concerning the Consumer Financial Protection Bureau was part of adam liptaka politically charged battle over presidential authority.

The Supreme Court ruled Monday that the president is free to fire the director of the Consumer Financial Protection Bureau without cause. The decision, rejecting a federal law that sought to place limits on presidential oversight of independent agencies, was a victory for the conservative movement to curb the administrative state.The vote was 5 to 4, with the court’s five more conservative justices in the majority.

ny times logoNew York Times,  Federal executions can restart after the justices declined a case, Adam Liptak, June 29, 2020. The move clears the way for the executions of four men in the coming months after a 17-year gap during which no inmate on death row for federal crimes was put to death.

The Supreme Court on Monday let stand an appeals court ruling allowing the Trump administration to resume executions in federal death penalty cases after a 17-year hiatus. Justices Ruth Bader Ginsburg and Sonia Sotomayor said they would have heard the case.

Attorney General William P. Barr announced last summer that the federal government would end what had amounted to a moratorium on capital punishment.

There are more than 60 prisoners on death row in federal prisons.Judge Tanya S. Chutkan, of the Federal District Court in Washington, blocked the executions in November, saying the protocol the government planned to use did not comply with the Federal Death Penalty Act of 1994, which requires executions to be carried out “in the manner prescribed by the law of the state in which the sentence is imposed.”

The central legal question in the case is whether the word “manner” in the 1994 law refers to the methods of execution authorized by the relevant states (like hanging, firing squad or lethal injection) or the protocols the states require (like the particular chemicals used in lethal injections, whether a doctor must be present or how a catheter is to be inserted).

 June 27

washington post logoWashington Post, Judge orders Trump associate Roger Stone to report to prison on July 14, Spencer S. Hsu, June 27, 2020 (print ed.). The federal judge overseeing Stone’s case rejected his request for a two-month delay amid the coronavirus pandemic.

A federal judge has ordered Roger Stone to report to prison July 14, granting him a two-week delay because of the coronavirus pandemic, but not the two months that President Trump’s confidant had requested with prosecutors’ assent.

Stone, 67, had been due to surrender June 30 to a federal prison in Jesup, Ga., while he appeals his November conviction for lying and witness tampering in a congressional investigation.

In an order and sealed opinion late Friday, U.S. District Judge Amy Berman Jackson granted a two-week delay. Prosecutors had not opposed Stone’s request for a delay until Sept. 3, saying the Justice Department’s policy during the pandemic has been to grant up to a 60-day extension upon defendants’ request “without respect to age, health, or other COVID-19 risk factors.”

In a short public notice, Jackson said she agreed to a two-week extension, with the reasoning explained in a sealed opinion; she asked whether both sides would agree to unseal that opinion next week.

“This affords the defendant seventy-five days beyond his original report date,” Jackson said in the notice, pointing out that she had originally ordered Stone to surrender to prison within two weeks after she denied his motion for a new trial in mid-April.

Stone, a longtime GOP operative and friend of Trump’s, was expected to seek a stay of his 40-month prison sentence since he appealed his case in April to the U.S. Court of Appeals for the District of Columbia Circuit.

washington post logoWashington Post, Supreme Court won’t force Texas to allow absentee ballots for all voters, Robert Barnes, June 27, 2020 (print ed.). The Supreme Court declined Friday to force Texas officials to offer mail-in ballots to all voters in the state because of the threat of the coronavirus, not just those over 65.

The justices, without comment, turned down a request from the Texas Democratic Party to reinstate a district judge’s order that would affect the primary runoff elections in July and the general election in November.

There were no noted dissents to the court’s order, but Justice Sonia Sotomayor wrote that the case raised “weighty but seemingly novel questions” regarding whether special conditions for those over a certain age violated the constitutional rights of younger voters.

She said an emergency request like the one before the Supreme Court was not the right time to consider them. But she added that she hoped the U.S. Court of Appeals for the 5th Circuit “will consider the merits of the legal issues in this case well in advance of the November election.”

The case has been part of a nationwide debate centered on the safety of in-person voting amid the coronavirus pandemic. President Trump, buoyed by conservative allies, has been critical of mail-in ballots, suggesting they could prove deleterious to Republicans’ chances in November and open the door to widespread voting fraud, a claim that lacks evidence.

All voters in every state but two — Mississippi and Texas — have the right to cast mail or absentee ballots for the midyear primaries after the pandemic led 14 states to relax their rules. Many states are considering extending those changes for the general election in November.

June 25

washington post logoWashington Post, Supreme Court agrees with administration on limits on asylum seekers, Robert Barnes and Nick Miroff, June 25, 2020. The Supreme Court ruled Thursday that asylum seekers who are quickly turned down by U.S. immigration officials do not have a right to make their case in federal court, a win for the Trump administration and its desire to rapidly deport people who enter the United States illegally.

The ruling was 7 to 2, although the usual undercurrents of an ideological divide on the court were present. Two of the court’s liberals dissented, and the other two agreed only with the outcome in the specific case.

Justice Samuel A. Alito Jr., writing for the majority, rejected a lower court’s ruling that the Constitution guarantees a “meaningful opportunity” for asylum seekers to make their case to a judge if they are turned down in an initial screening.

washington post logoWashington Post, Analysts say Barr is eroding Justice Dept. independence, Matt Zapotosky and Karoun Demirjian, June 25, 2020 (print ed.). Tension over allegations of the attorney general’s malfeasance reached new heights Wednesday as the House Judiciary Committee heard testimony from two prosecutors, including one who had worked with former special counsel Robert S. Mueller III.

michael flynn djt

washington post logoWashington Post, Opinion: The Flynn decision doesn’t pass the smell test, E.J. Dionne, right, June 25, 2020 (print ed.). Shudder for the rule of law in our nation. Be ej dionne w open neckalarmed that a politicized Justice Department will be allowed to do whatever it wants in service to a sitting president. Be amazed that judges can spout errant nonsense to reach a result that just happens to square with the interests of a president who shares their partisan leanings.

Yes, the decision by two Court of Appeals judges to block efforts to scrutinize the Justice Department’s decision to drop its prosecution of Michael Flynn, President Trump’s former national security adviser, is that disturbing. Here’s hoping the entire U.S. Court of Appeals for the D.C. Circuit insists on reviewing this scandalous decision and overturns it.

washington post logoWashington Post, Opinion: All the worrisome things happening at the DOJ could be just the tip of the iceberg, Ruth Marcus, right, June 25, 2020 (print ed.). It is becoming alarmingly ruth marcus twitter Customdifficult to keep track of all the reasons to worry about what’s happening at Justice under Barr — and increasingly clear that what we know that is worrisome may be the tip of the iceberg. And it is becoming absolutely imperative that Barr and other senior department officials testify about their activities.

Last Friday saw the botched massacre of Geoffrey Berman, the U.S. attorney for the Southern District of New York. The episode was telling for those, myself included, who once had higher hopes for Barr’s second stewardship of the department.

For those who thought Barr might be an institutionalist, protecting the department from the predations of a president with little respect for it, consider: He backed installing a prosecutor in the flagship office with no — zero — prosecutorial experience.

Palmer Report, Opinion: Bill Barr is going to prison, Robert Harrington, June 25, 2020. Mark Tuesday, July 28th, 2020 on your calendars. That is the date that Barr is scheduled to go before Jerry Nadler’s House Judiciary Committee to show cause for his improper meddling in criminal cases and antitrust probes for political gain on behalf of Donald J. Trump. Barr is, in effect, to face questions of why he decided to abandon his distinguished career so late in life and agree to become Donald Trump’s fixer.

bill palmer report logo headerTo be sure, Barr won’t be the first United States Attorney General to go to prison. John N. Mitchell has that distinction. But Barr will be the first A.G. to go to prison because of actions he took while Attorney General. And he will go because when he appears before Mr. Nadler’s committee, he will do so under oath. As such he will be faced with two choices, either he tells the truth, at which point he will be criminally liable for his flagrantly unlawful behaviours while in office, or he will lie, at which point he will be criminally liable for perjury. And he will be criminally liable for his flagrantly unlawful behaviours while in office anyway.

william barr new oNeedless to say Barr, right, has a little over a month to back out. In fact, he did back out of appearing before Congress in 2019 during its probe into the impeachment of Donald Trump. This time is a little different, however. This time it’s about his showing cause as to why Congress should not impeach him. And if Congress should decide to draft articles of impeachment against Bill Barr, it would not be surprising if those articles are delivered to the Senate after January 3rd, 2021, when new Senators are sworn. By then it will almost certainly be a Democratic Senate deciding Barr’s fate.

Beyond that, of course, Barr will face the wrath of the next Attorney General, to be sworn after 20 January 2021, who will take his or her time preparing criminal indictments against Donald J. Trump, Mike Pence, Donald, Eric and Ivanka Trump, Kellyanne Conway, a host of Trump cabinet officers, former and current press secretaries and appointees and, last but not least, William P. Barr. It is going to be quite a circus and I, for one, intend having ringside seats.

The problems facing William Barr are legion. As Jerry Nadler puts it, “Mr. Barr’s work at the Department of Justice has nothing to do with correcting injustice. He is the president’s fixer. He has shown us that there is one set of rules for the president’s friends, and another set of rules for the rest of us.” Trump’s last fixer, Michael Cohen, also went to prison.

Everything Bill Barr says under oath at his hearing in July can and will be held against him in a court of law. When he goes to prison I plan to enjoy it. Barr is an awful, authoritarian, religious zealot who would happily turn America into a theocratic dictatorship if he had his way. So when we get rid of Donald Trump in November, ladies and gentlemen, brothers and sisters, comrades and friends, we will also be getting rid of William Barr, and seeing them both safely in prison.

June 24

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U.S. Prosecution, Court Politics

 

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July

July 2

New York Times, Opinion: How Chief Justice Roberts Solved His Abortion Dilemma, Linda Greenhouse, July 2, 2020 (print ed.). https://www.nytimes.com/2020/07/02/opinion/supreme-court-abortion-roberts.html For the moment, the right to choose is safe. But the outlook is ominous.New York Times, Opinion: How Chief Justice Roberts Solved His Abortion Dilemma, Linda Greenhouse, July 2, 2020 (print ed.). https://www.nytimes.com/2020/07/02/opinion/supreme-court-abortion-roberts.html For the moment, the right to choose is safe. But the outlook is ominous.Here’s a thought experiment. You’re John Roberts, not only the chief justice of the United States but the head of the entire federal judicial branch. After 15 years on the job, you find yourself in an exquisitely tough spot.On the one hand, you’re confronted with a rogue court — the United States Court of Appeals for the Fifth Circuit, one of the 13 appeals courts that, like all “lower” federal courts, are bound to follow the law as the Supreme Court hands it to them. Four years earlier, your court reversed the Fifth Circuit and ruled that a Texas law imposed an unconstitutional “undue burden” on women’s access to abortion.And what did the Fifth Circuit turn around and do? It upheld an identical law in Louisiana on the ground that, well, Texas was Texas and Louisiana wasn’t. Clearly, you can’t ignore such blatant defiance.On the other hand, you dissented four years ago from that decision, Whole Woman’s Health v. Hellerstedt. You didn’t like it then and you don’t like it now. You found it unduly solicitous of the right to abortion as the Supreme Court had narrowed and reinterpreted that right nearly a generation after Roe v. Wade, in Planned Parenthood v. Casey in 1992. Justice Stephen Breyer wrote the majority opinion that struck down the Texas law and now he’s used the same analytical tools to declare the Louisiana law unconstitutional. If you join his opinion, you’ll be perpetuating what you regard as a serious error of constitutional interpretation. But you can’t join the four colleagues who are voting in dissent without rewarding the Fifth Circuit’s defiance.June 24

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washington post logoWashington Post, Appeals court orders judge to dismiss criminal case against Flynn, Ann E. Marimow, June 24, 2020. The decision blocks U.S. District Judge Emmet G. Sullivan from holding a hearing to scrutinize the Justice Department’s decision to drop its long-running prosecution of Michael Flynn, President Trump’s former national security adviser.michael flynn arms folded

U.S. District Judge Emmet G. Sullivan cannot scrutinize the Justice Department’s decision to drop its long-running prosecution of President Trump’s former national security adviser Michael Flynn and must dismiss the case, a federal appeals court ruled Wednesday.

In a 2-1 decision, the court (portrayed above in a building shared with the district court) said it is not within the judge’s power to prolong the prosecution or examine the government’s motives for its reversal in the politically charged case. Flynn, below left, twice pleaded guilty to lying to federal agents about his pre-inauguration contacts with Russia’s ambassador before the Justice Department moved in May to dismiss the charges.

“This is not the unusual case where a more searching inquiry is justified,” wrote Judge Neomi Rao, a recent nominee of the president, who was joined by Judge Karen LeCraft emmet sullivan 2012Henderson (also a Republican nominee).

The ruling from the U.S. Court of Appeals for the D.C. Circuit means Sullivan cannot hold a hearing set for July 16 to formally hear the government’s john gleeson Customrequest to dismiss Flynn’s case.

Sullivan, also a Repubican nominee and shown at left, refused to immediately sign off on the Justice Department’s plans, and instead appointed a former federal judge to argue against the government’s position and help him decide how to proceed.

John Gleeson, right, the former New York judge and mob prosecutor, characterized the government’s move as a “gross abuse of prosecutorial power” and “highly irregular conduct to benefit a political ally of the President.”

washington post logoWashington Post, Live updates: N.Y. N.J. and Conn. order quarantine for travelers from Florida, other states hit hard by coronavirus, Teo Armus, Katie Shepherd, Jennifer Hassan, Rick Noack, Lateshia Beachum, Hannah Knowles, Miriam Berger, Hamza Shaban and Kim Bellware, June 24, 2020. The governors of the tri-state area jointly announced the travel advisory, which requires a 14-day quarantine for visitors from states whose infection rates meet certain thresholds indicating “significant community spread,” according to New York Gov. Andrew M. Cuomo (D). Nine states currently meeting that threshold, Cuomo said: Alabama, Arkansas, Arizona, Florida, North Carolina, South Carolina, Washington, Utah and Texas.

New coronavirus cases continued to rise in many parts of the United States, as seven states — Arizona, Arkansas, California, North Carolina, South Carolina, Tennessee and Texas — reported record-high numbers of hospitalizations since the pandemic began. Thirty-three states and U.S. territories reported a higher rolling average than last week.

Even as case numbers climb, reports circulated that the federal government is poised to stop providing federal aid to testing sites in some hard-hit states, including Texas, prompting a top federal official to respond that testing was on the rise.

Since the start of the pandemic, the United States has recorded more than 2.3 million coronavirus cases and at least 119,000 deaths, while the global number of cases has soared past 9 million.

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Longtime Trump friend and Republican operative Roger Stone, seeking to avoid prison after conviction on seven felonies, is shown above left.

ny times logoNew York Times, Justice Dept. Officials Outline Claims of Politicization Under Barr, Nicholas Fandos, Katie Benner and Charlie Savage, June 24, 2020. Two career officials accused the attorney general and other political appointees of interfering in law enforcement to advance his interests and the president’s. Political appointees intervened in law enforcement to advance the interests of President Trump and Attorney General William Barr, the officials testified.

aaron zelinkskyTwo Justice Department officials recounted to Congress in stinging detail on Wednesday how political appointees had intervened in criminal and antitrust cases to advance the personal interests of President Trump and Attorney General William P. Barr.

Aaron S.J. Zelinsky, right, a prosecutor who worked on the Russia investigation, told the House Judiciary Committee that senior law enforcement officials had john eliasstepped in to overrule career prosecutors and seek a more lenient prison sentence for Mr. Trump’s longtime friend Roger J. Stone Jr. “because of politics.”

“In the United States of America, we do not prosecute people based on politics, and we don’t cut them a break based on politics,” said Mr. Zelinsky, who testified by video because of the coronavirus pandemic. “But that wasn’t what happened here. Roger Stone was treated differently because of politics.”

John W. Elias, a senior career official in the antitrust division, charged (in testimony here) that his supervisors improperly used their powers to investigate the marijuana industry and a deal between California and four major automakers at the behest of Mr. Barr. He likened their efforts to burdensome harassment meant to punish companies for decisions the attorney general and the president opposed.

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Los Angeles Times, Analysis of Supreme Court 2020: Major rulings on abortion, Trump’s tax returns still to come, David G. Savage, June 24, 2020. The Supreme Court is nearing the end of its term and ready to release major decisions on abortion, religion and the separation of powers between the president and Congress — specifically, whether House Democrats or a New York grand jury can obtain President Trump’s tax returns.

The court has already handed down a pair of surprises by extending the 1964 Civil Rights Act to protect LGBTQ employees and by blocking President Trump’s repeal of the Obama-era program that protects the so-called Dreamers, the young immigrants who were brought to this country as children. Chief Justice John G. Roberts Jr. voted with the four liberals in both cases, triggering dismay and dissent among his colleagues on the right.

The chief justice also figures to hold the deciding vote in the biggest cases yet to be decided. A Louisiana dispute over doctors who perform abortions has taken on added significance because it will be the first abortion ruling since Trump’s two appointees took their seats and because it will signal whether the more conservative court will stick with its precedents on abortion.

Trump is counting on the court to protect him from subpoenas issued by three House committees and a New York grand jury that seek financial records held by his accountant or by Deutsche Bank, which made large loans to Trump’s properties. Trump sued to block the subpoenas but lost in three lower courts.

Usually, the court hands down its final decisions by the end of June and goes on recess for the summer. But the coronavirus shutdown delayed the arguments in several cases, including the dispute over Trump’s taxes, which in turn could push the last decisions into early July.

Here’s a look at the major cases still pending, and the significant rulings so far.

ny times logojoe biden 2020 button CustomNew York Times, Biden Takes Dominant Lead as Voters Reject Trump on Virus and Race, Alexander Burns, Jonathan Martin and Matt Steven, June 24, 2020. Joe Biden is ahead of President Trump by 14 points, with a wide advantage among women and nonwhite voters, a New York Times/Siena College poll found. Some traditionally Republican-leaning groups have shifted away from Mr. Trump, who now appears to be the underdog in his fight for a second term.

washington post logoWashington Post, Senate Democrats block GOP policing bill, stalling efforts to change practices, Seung Min Kim, June 24, 2020. Democrats said the bill fell far short of addressing racism in policing and responding to the national outcry for change.

Senate Democrats on Wednesday blocked a Republican-drafted bill aimed at overhauling the nation’s policing practices amid a national outcry for a systematic transformation of law enforcement — spelling a potential death knell to efforts at revisions at the federal level in an election year.

On a 55-to-45 vote, the legislation written primarily by Sen. Tim Scott (R-S.C.) failed to advance in the Senate, where it needed 60 votes to proceed. Most Democratic senators said the bill fell far short of what was needed to meaningfully change policing tactics and was beyond the point of salvageable.

U.S. Prosecution, Court Politics

washington post logoWashington Post, Live updates: Prosecutor testifies on alleged politicization inside Barr’s Justice Department, Felicia Sonmez, Karoun Demirjian, Matt Zapotosky and Colby Itkowitz, June 24, 2020. The House Judiciary Committee is hearing testimony Wednesday from a federal prosecutor and another witness who have accused Attorney General William P. Barr and his top deputies of acting “based on political considerations” and a desire to appease President Trump.

Aaron Zelinsky, an assistant U.S. attorney in Maryland formerly detailed to the Russia investigation by special prosecutor Robert S. Mueller III, told the panel that prosecutors involved in the criminal trial of Trump’s friend Roger Stone experienced “heavy pressure from the highest levels of the Department of Justice” to give Stone “a break” by requesting a lighter sentence.

Zelinsky was joined by John Elias, an official in the Justice Department’s antitrust division, who said that Barr ordered staff to investigate marijuana company mergers simply because of his “personal dislike” of the nature of their underlying business.

Also appearing are former U.S. attorney general Michael B. Mukasey and former deputy attorney general Donald Ayer, who has publicly called on Barr to step down.

In his testimony, Ayer said Barr “poses the greatest threat in my lifetime to our rule of law,” while Mukasey dismissed allegations that the Justice Department has become politicized under Barr.

Meanwhile, Barr has accepted an invitation from the panel’s chairman, Rep. Jerrold Nadler (D-N.Y.), to appear for a “general oversight hearing” on July 28, Barr’s spokeswoman, Kerri Kupec, said in a tweet Wednesday. According to a Judiciary Committee spokesman, the Justice Department contacted the panel on Tuesday regarding a date for Barr’s testimony to avoid a subpoena for the attorney general.

washington post logoWashington Post, Senate confirms 200th judicial nominee from Trump, a legacy that will last well beyond November, John Wagner, June 24, 2020. A divided Senate on Wednesday confirmed President Trump’s 200th judicial nominee, a milestone that reflects the breakneck speed at which he and fellow Republicans have moved to create a legacy that will endure regardless of the outcome of this year’s elections.

On a largely party-line vote of 52 to 48, the Republican-led chamber approved the nomination of Cory Wilson of Mississippi to the U.S. Court of Appeals for the Fifth Circuit, elevating yet another conservative judge to a lifetime appointment on the federal bench.

With Wilson’s confirmation, Republicans also reached a benchmark vigorously pursued by Senate Majority Leader Mitch McConnell (R-Ky.): For the first time in more than four decades, there are no longer any vacancies on the nation’s appellate courts, the judicial level where most of the major rulings are handed down.

Yahoo News, House hearing on William Barr quickly descends into chaos, Dylan Stableford, June 24, 2020. A House Judiciary Committee hearing quickly descended into chaos Wednesday moments after the first witness, former Deputy Attorney General Donald Ayer, called current Attorney General William Barr “the greatest threat in my lifetime to our rule of law.”

william barr new oWhen Ayer exceeded the five minutes allotted for his opening statement, Rep. Louie Gohmert, R-Texas, began loudly tapping his desk as Ayer was attempting to conclude his remarks.

Committee Chairman Jerry Nadler called for “regular order” to allow Ayer to finish his statement.

“We’re way beyond regular order,” Gohmert snapped.

Rep. Hank Johnson, D-Ga., urged Nadler to call for the sergeant at arms to “stop the disruption of this meeting.”

“I can’t hear this witness,” Johnson said. “This is a very important witness.”

“Well, he’s way beyond his time,” Gohmert said. “And if there’s no rules about when you can talk, there’s no rules about when you can noise.”

The Republican congressman resumed tapping his desk as Democrats asked Nadler to have Gohmert removed from the panel.

Nadler did not, and Ayer concluded his remarks over the sound of Gohmert’s tapping.

Tuesday’s hearing was convened to examine Barr’s actions as attorney general, including his handling of the Mueller report as well as his role in forcing out Geoffrey Berman, the U.S. attorney for the Southern District of New York who had been conducting separate investigations that could yield unfavorable results for the President Trump.

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washington post logoWashington Post, Appeals court orders judge to dismiss criminal case against Flynn, Ann E. Marimow, June 24, 2020. The decision blocks U.S. District Judge Emmet G. Sullivan from holding a hearing to scrutinize the Justice Department’s decision to drop its long-running prosecution of Michael Flynn, President Trump’s former national security adviser.michael flynn arms folded

U.S. District Judge Emmet G. Sullivan cannot scrutinize the Justice Department’s decision to drop its long-running prosecution of President Trump’s former national security adviser Michael Flynn and must dismiss the case, a federal appeals court ruled Wednesday.

In a 2-1 decision, the court said it is not within the judge’s power to prolong the prosecution or examine the government’s motives for its reversal in the politically charged case. Flynn, below left, twice pleaded guilty to lying to federal agents about his pre-inauguration contacts with Russia’s ambassador before the Justice Department moved in May to dismiss the charges.

“This is not the unusual case where a more searching inquiry is justified,” wrote Judge Neomi Rao, a recent nominee of the president, who was joined by Judge Karen LeCraft emmet sullivan 2012Henderson.

The ruling from the U.S. Court of Appeals for the D.C. Circuit means Sullivan, left, cannot hold a hearing set for July 16 to formally hear the government’s john gleeson Customrequest to dismiss Flynn’s case.

Sullivan refused to immediately sign off on the Justice Department’s plans, and instead appointed a former federal judge to argue against the government’s position and help him decide how to proceed. John Gleeson, right, the former New York judge and mob prosecutor, characterized the government’s move as a “gross abuse of prosecutorial power” and “highly irregular conduct to benefit a political ally of the President.”

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June 23

washington post logoWashington Post, Prosecutor to tell Congress that Barr, top aides sought to cut Roger Stone ‘a break,’ Karoun Demirjian, Matt Zapotosky and Rachael Bade, June 23, 2020. House Judiciary Chairman Jerrold Nadler wants Attorney General William P. Barr to testify in the Democrats’ investigation into what they warn is dangerous politicization at the Justice Department.

Justice Department log circularA federal prosecutor and another Justice Department official plan to tell Congress on Wednesday that Attorney General William P. Barr and his top deputies issued inappropriate orders amid investigations and trials “based on political considerations” and a desire to cater to President Trump.

Aaron Zelinsky, an assistant U.S. attorney in Maryland formerly detailed to Robert S. Mueller III’s Russia investigation, will tell the House Judiciary Committee that prosecutors involved in the criminal trial of Trump’s friend Roger Stone (shown above left) experienced “heavy pressure from the highest levels of the Department of Justice to cut Stone a break” by requesting a lighter sentence, according to Zelinsky’s prepared remarks. The expectation, he intends to testify, was that Stone should be treated “differently and more leniently” because of his “relationship with the President.”

Zelinsky will be joined by John Elias, an official in the Justice Department’s Antitrust Division, who will say that Barr ordered staff to investigate marijuana company mergers simply because he “did not like the nature of their underlying business,” according to his prepared testimony.

June 18

Top Headlines

Bolton Book Reactions

U.S. Courts, Crime, Injustice

 

Top Stories

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ny times logoNew York Times, Trump Can’t Immediately End DACA, Supreme Court Rules, Adam Liptak and Michael D. Shear, June 18, 2020. Blow to Trump, Who Vowed to End Program to Shield Young Immigrants. The program, Deferred Action for Childhood Arrivals, protects people brought to the United States as children by shielding them from deportation and letting them work. 

The Supreme Court ruled Thursday that the Trump administration may not immediately proceed with its plan to end a program protecting about 700,000 young immigrants known as Dreamers from deportation.

The court’s ruling was a blow to one of President Trump’s central campaign promises — that as president he would “immediately terminate” an executive order by former President Barack Obama that Mr. Trump had called an illegal executive amnesty for hundreds of thousands of young immigrants.

Chief Justice John G. Roberts Jr. wrote the majority opinion, joined by the court’s four more liberal members in upholding the program, Deferred Action for Childhood Arrivals, or DACA.

“We do not decide whether DACA or its rescission are sound policies,” the chief justice wrote. “We address only whether the agency complied with the procedural requirement that it provide a reasoned explanation for its action.”

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washington post logoWashington Post, Trump asked China’s Xi to help him win reelection, according to Bolton book, Josh Dawsey, June 18, 2020 (print ed.). The memoir by former national security adviser John Bolton portrays an “erratic” and “stunningly uninformed” commander in chief.

President Trump asked Chinese President Xi Jinping (shown above in a file photo) to help him win the 2020 U.S. election, telling Xi during a summit dinner last year that increased agricultural purchases by Beijing from American farmers would aid his electoral prospects, according to a damning new account of life inside the Trump administration by former john bolton room where cover Customnational security adviser John Bolton.

During a one-on-one meeting at the June 2019 Group of 20 summit in Japan, Xi complained to Trump about China critics in the United States. But Bolton writes in a book scheduled to be released next week that “Trump immediately assumed Xi meant the Democrats. Trump said approvingly that there was great hostility among the Democrats.

“He then, stunningly, turned the conversation to the coming U.S. presidential election, alluding to China’s economic capability to affect the ongoing campaigns, pleading with Xi to ensure he’d win,” Bolton writes. “He stressed the importance of farmers, and increased Chinese purchases of soybeans and wheat in the electoral outcome. I would print Trump’s exact words but the government’s prepublication review process has decided otherwise.”

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washington post logoWashington Post, Trump ‘unfit for office,’ lacks ‘competence,’ Bolton says in TV interview, John Wagner, June 18, 2020. Former national security adviser John Bolton says in a television interview that President Trump is “unfit for office” and lacks the “competence to carry out the job.”

Bolton made the comments to ABC News correspondent Martha Raddatz (shown with Bolton above) as the former administration insider sought to promote a new book that Trump claimed in a tweet early Thursday is “made up of lies & fake stories.” Excerpts of the interview aired Thursday.

Courts, Crime, Injustice

ny times logoNew York Times, Opinion: What Does ‘Sex’ Mean? The Supreme Court Answers, Linda Greenhouse (shown at right on the cover of her linda greenhouse cover just a journalistmemoir), June 18, 2020. We’ll soon find out whether the court inflames the culture wars or cools them as its term winds down.

Monday’s momentous Supreme Court decision protecting L.G.B.T.Q. people against workplace discrimination was so big that it crashed the court’s computer system. For nearly half an hour, those of us at home, anxiously refreshing our browsers, knew that the decision had come down but could upload only the first page of the headnote, the official summary: “Held: An employer who fires an individual merely for being gay or transgender violates Title VII.”

But who wrote the opinion? And what was the vote? Eventually, of course, the surprises were revealed: Justice Neil Gorsuch and 6 to 3.

In the few days since then, I’ve been pondering: What do people need to know about Bostock v. Clayton County beyond its bottom line? And where, in this mammoth set of opinions — a modest 33 pages for Justice Gorsuch but an indigestible 135 pages for the dissents — does the decision’s beating heart lie?

washington post logoWashington Post, Thousands are serving life sentences in Louisiana. A new case could give them the chance to appeal, Richard A. Webster, June 18, 2020. Louisiana’s so-called lifers number nearly 4,700, more than Alabama, Arkansas, Mississippi and Texas combined, according to the Sentencing Project.

Three years ago, Louisiana Gov. John Bel Edwards signed into law a major criminal justice package designed to reduce the state’s overflowing prison population. The bill, which Edwards said would make Louisiana’s title as the most incarcerated state a thing of the past, has resulted in a 6 percent overall decrease.

One part of the prison population, though, remains high: those serving life without parole. Louisiana’s so-called lifers number nearly 4,700, more than Alabama, Arkansas, Mississippi and Texas combined, according to the Sentencing Project. Experts blame draconian sentencing standards and ineffective counsel. And unlike most states, Louisiana prohibits inmates from challenging their convictions on either of those grounds, permanently cementing their status.

That could change, however, as the Louisiana Supreme Court considers the case of Derek Harris, a 1991 Gulf War veteran who was prosecuted as a habitual offender after selling $30 worth of marijuana to an undercover police officer in Abbeville, La., in 2008. Harris, whose previous offenses included theft and dealing cocaine, was sentenced to life without the possibility of parole, though he had no record of violent crime. Currently serving his sentence at Angola, Harris is asking the court to reinstate the ability of inmates to contest their sentences on the grounds that they are excessive and the result of inadequate legal representation.

Palmer Report, Opinion: Well that just blew up in Donald Trump’s face, Ron Leshnower, June 18, 2020. By appointing Neil Gorsuch and Brett Kavanaugh to the U.S. Supreme Court, Trump aimed to cement conservative policies into law while relishing how he can use his appointment power as leverage against Republicans who question whether they should tolerate the cretin. This week, however, as the Supreme Court achieved a civil rights milestone, Trump lost control of his judicial appointments power game in spectacular fashion.

Gorsuch authored the majority opinion in Bostock v. Clayton County on Monday, siding with liberal Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, Elena Kagan as well as Chief Justice John Roberts. Noting that we live in a “society of written laws,” Gorsuch claimed that justices cannot “overlook plain statutory commands on the strength of nothing more than suppositions about intentions or guesswork about expectations.” As a result, he proclaimed: “An employer who fires an individual merely for being gay or transgender defies the law.”

bill palmer report logo headerBy contrast, Kavanaugh, right, authored a dissenting opinion, adding another bulleted item to the lengthy “On the Wrong Side of History” section of his resume. In doing so, Kavanaugh nevertheless delivered a different type of surprise. Kavanaugh first made clear that a desire to adhere to what he believes is the ordinary meaning brett kavanaughof “discriminate because of sex” in Title VII of the Civil Rights Act of 1964 was his sole motivation. He then offered an unexpected and wholehearted embrace of gay rights.

Kavanaugh called the outcome an “important victory achieved today by gay and lesbian Americans.” He also praised their “extraordinary vision, tenacity, and grit” in the battle for equality, suggesting they “can take pride in today’s result.” In a strange and almost apologetic tone, Kavanaugh signed off by reiterating that his opinion merely reflects his belief that “it was Congress’s role, not this Court’s, to amend Title VII.”

Kavanaugh’s statement is remarkable. In July 2018, days after Kavanaugh’s nomination, the National Center for Transgender Equality wrote that although Kavanaugh is a “reliable arch-conservative to the right of Justices Scalia and Gorsuch… there is a great deal we still don’t know.” The Center also cautioned that “as far as anyone can tell, in his long career he has never ruled on or written about legal issues related to LGBTQ people.”

Gorsuch’s historic opinion and Kavanaugh’s gratuitous declaration of support for the LGBTQ community do not convert these justices into liberal ones nor crown them as civil rights heroes. However, their actions should serve as a one-two punch against Trump, deflating conservative enthusiasm for his unreliable picks while shining a bright light on the fact that Trump managed to bungle this too.

Bolton Book Reactions

washington post logoWashington Post, Justice Department seeks emergency order to block publication of Bolton’s book, Tom Hamburger, Rosalind S. Helderman, Devlin Barrett and Spencer S. Hsu, June 18, 2020 (print ed.). The Justice Department on Wednesday sought an emergency order from a judge to block the publication of former national security adviser John Bolton’s forthcoming White House memoir, escalating a legal battle against the former Trump aide even after many of his book’s most explosive details had spilled out into public view.

john bolton room where cover CustomThe move came after the administration filed a civil suit against Bolton on Tuesday, targeting the proceeds of the book and asking a court to order him to delay its scheduled June 23 release. Less than 24 hours later, the Wall Street Journal released an excerpt of the memoir, and lengthy accounts were published by other news organizations.

Justice Department log circularWednesday’s move sought to formally enjoin Bolton from allowing his book to be published, a legal strategy experts said was unlikely to succeed, particularly given that the book has already been printed and shipped to warehouses and copies distributed to the media for review.

In a statement, Bolton’s publisher called the court filing “a frivolous, politically motivated exercise in futility. Hundreds of thousands of copies of John Bolton’s The Room Where It Happened have already been distributed around the country and the world. The injunction as requested by the government would accomplish nothing.’’

Still, the legal show of force could satisfy President Trump, who urged aides Wednesday to seek to block the publication of the book, despite warnings that the prospects of victory in such a suit would not be strong, according to people familiar with his remarks, who spoke on the condition of anonymity to describe private conversations. 

Bolton Book Reactions

washington post logoWashington Post, Justice Department seeks emergency order to block publication of Bolton’s book, Tom Hamburger, Rosalind S. Helderman, Devlin Barrett and Spencer S. Hsu, June 18, 2020 (print ed.). The Justice Department on Wednesday night sought an emergency order from a judge to block the publication of former national security adviser John Bolton’s forthcoming White House memoir, escalating a legal battle against the former Trump aide even after many of his book’s most explosive details had spilled out into public view.

john bolton room where cover CustomThe move came after the administration filed a civil suit against Bolton on Tuesday, targeting the proceeds of the book and asking a court to order him to delay its scheduled June 23 release. Less than 24 hours later, the Wall Street Journal released an excerpt of the memoir, and lengthy accounts were published by other news organizations.

Justice Department log circularWednesday’s move sought to formally enjoin Bolton from allowing his book to be published, a legal strategy experts said was unlikely to succeed, particularly given that the book has already been printed and shipped to warehouses and copies distributed to the media for review.

In a statement, Bolton’s publisher called the court filing “a frivolous, politically motivated exercise in futility. Hundreds of thousands of copies of John Bolton’s The Room Where It Happened have already been distributed around the country and the world. The injunction as requested by the government would accomplish nothing.’’

Still, the legal show of force could satisfy President Trump, who urged aides Wednesday to seek to block the publication of the book, despite warnings that the prospects of victory in such a suit would not be strong, according to people familiar with his remarks, who spoke on the condition of anonymity to describe private conversations. 

ny times logoNew York Times, Analysis: Five Takeaways From John Bolton’s Memoir, Peter Baker, June 18, 2020. The Room Where It Happened describes Mr. Bolton’s 17 turbulent months at President Trump’s side through crises and foreign policy challenges.

Mr. Bolton, who did not testify during House proceedings and whose offer to testify in the Senate trial was blocked by Republicans, confirms many crucial elements of the Ukraine scheme that got Mr. Trump impeached in December. He also asserts that the president was willing to intervene in criminal investigations to curry favor with foreign dictators. And he says that Mr. Trump pleaded with China’s president to help him win re-election by buying American crops grown in key farm states.

Here are some of the highlights:

1) An offer of firsthand evidence on the Ukraine matter. The book offers firsthand evidence that Mr. Trump linked his suspension of $391 million in security aid for Ukraine to his demands that Ukraine publicly announce investigations into supposed wrongdoing by Democrats, including former Vice President Joseph R. Biden Jr. — the heart of the impeachment case against the president.

June 16

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  ny times logoNew York Times, Trump Administration Sues to Try to Delay Publication of Bolton’s Book, Maggie Haberman and Katie Benner, June 16, 2020. The Trump administration sued theformer national security adviser John R. Bolton, above, on Tuesday to try to delay the publication of his highly anticipated memoir about his time in the White House, saying it contained classified information that would compromise national security if it became public.

The book, The Room Where It Happened, is set for release on June 23. Administration officials have repeatedly warned Mr. Bolton against publishing the book.

Mr. Bolton “had negotiated a book deal allegedly worth about $2 million and had drafted a 500-plus-page manuscript rife with classified information, which he proposed to release to the world,” the Justice Department said in a lawsuit against Mr. Bolton filed in federal court in Washington.

Mr. Bolton’s lawyer, Charles Cooper, has said that his client acted in good faith and that the Trump administration is abusing a standard review process to prevent Mr. Bolton from revealing information that is merely embarrassing to President Trump, but not a threat to national security.

On Monday, Mr. Trump accused Mr. Bolton of violating policies related to classified information by moving ahead with the book.

But the book has already been printed and bound and has shipped to warehouses, which could make it more difficult for the administration to stop Mr. Bolton’s account from becoming public.

Mr. Bolton submitted the manuscript to the administration for review in January. At the time, the impeachment inquiry was underway into whether Mr. Trump’s dealings with Ukraine constituted an abuse of power.

Democrats asked Mr. Bolton to testify voluntarily in the House impeachment inquiry, but he declined, and they never sought a subpoena, fearing a protracted court fight. Mr. Bolton offered to testify in the impeachment trial in the Senate, where Republicans control the majority. They declined to call him.

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ny times logoNew York Times, Civil Rights Law Protects L.G.B.T. Workers, Supreme Court Rules, Adam Liptak, June 15, 2020.  Landmark Decision on Workplace Discrimination Law. The Supreme Court ruled Monday that a landmark civil rights law protects gay and transgender workers from workplace discrimination, handing the movement for L.G.B.T. equality a stunning victory.

supreme court CustomThe vote was 6 to 3, with Justice Neil M. Gorsuch writing the majority opinion. He was joined by Chief Justice John G. Roberts Jr. and Justices Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor and Elena Kagan.

The case concerned Title VII of the Civil Rights Act of 1964, which bars employment discrimination based on race, religion, national origin and sex. The question for the justices was whether that last prohibition — discrimination “because of sex”— applies to many millions of gay and transgender workers.

The decision, covering two cases, was the court’s first on L.G.B.T. rights since the retirement in 2018 of Justice Anthony M. Kennedy, who wrote the majority opinions in all four of the court’s major gay rights decisions.

Those decisions were grounded in constitutional law. The new cases, by contrast, concerned statutory interpretation.

Lawyers for employers and the Trump administration argued that the common understanding of sex discrimination in 1964 was bias against women or men and did not encompass discrimination based on sexual orientation and gender identity. If Congress wanted to protect gay and transgender workers, they said, it could pass a new law.

The court considered two sets of cases. The first concerned a pair of lawsuits from gay men who said they were fired because of their sexual orientation. The second was about a suit from a transgender woman, Aimee Stephens, who said her employer fired her when she announced that she would embrace her gender identity at work.

Lawyers for the workers responded that discrimination against employees based on sexual orientation or transgender status must as a matter of logic take account of sex.

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Reuters via MSN, U.S. Supreme Court snubs Trump on challenge to California 'sanctuary' laws, Ted Hesson and Jan Wolfe, June 15, 2020. The U.S. Supreme Court on Monday handed President Donald Trump a defeat in his legal showdown with the most-populous U.S. state, declining to hear his administration's challenge to "sanctuary" laws in California that protect immigrants from deportation.

The justices left in place a lower court ruling that upheld the bulk of three laws in the Democratic-governed state that limit cooperation with federal immigration enforcement authorities. The Trump administration had appealed that ruling to the high court.

U.S. Law and Courts

Preet Bharara, right, President Obama's U. S. attorney for the Southern District of New York, with U.S. Attorney Gen. Eric Holder (2011 Department of Justice Photo).

Preet Bharara, right, President Obama's U. S. attorney for the Southern District of New York, with U.S. Attorney Gen. Eric Holder (2011 Department of Justice Photo).

OpEdNews, Opinion: I Did What I Believe Was Best for America, Preet Bharara, June 15, 2020. My name is Preet Bharara, I had the honor of serving as the United States Attorney for the Southern District of New York from 2009 to 2017. Recently, I have received dozens of calls from journalists and read a number of articles claiming I was the lynch pin, the center of gravity, in a long running Mafia-style government protection racket.

Many of these young journalists do not remember the magnitude of the crisis this country faced with the 2008 financial crisis. Two of this nation's largest financial institutions, Lehman Brothers and Bear Sterns, had just collapsed. The nation was reeling from the discovery that there were trillions of dollars in near worthless mortgage backed, bonds floating through our financial markets. The country was facing a liquidity crisis and the real possibility that all our major banks could fail.

It was a terrible time for all American's, including myself. Our Southern District Office was getting inundated with hundreds of criminal complaints regarding securities fraud. Many of the complaints came into us without any evidence but many more, presented compelling evidence of criminal wrongdoing. As an Officer of the Court and an employee of the Department of Justice, my job was to enforce the laws of the United States fairly, regardless of a person's wealth, race, religion or political connections.

Back in 2009, I shared my belief that we were suffering this historic financial crisis due to the criminal activities of about a dozen Wall Street firms and less than one hundred Wall Street executives. I shared this with President Obama, Attorney General Holder, Treasury Secretary Jack Lew, Senator Chuck Schumer, Senator Mitch McConnell and the current and former SEC Chairmen. They all came back to me and said that this was not the time to punish those responsible. It was a time for everyone to focus on a solution. I was told over and over again, punishing the Wall Street executives and their firms would only multiply the damage done by their activities.

I was torn. We had this relatively small group of companies and their executives committing massive financial fraud. Fraud on such a scale that it almost destroyed our fragile democracy and they were untouchable. They would not be held to the same laws as the rest of the country. They were special and had a get out of jail card not available to anyone else. In 2009, I believed the argument that prosecuting these individuals and their companies could push America off the cliff it was now hanging on to. I believed my commitment to what was best for America should supersede my obligations as a United States Attorney. So, I acted accordingly. No American firm was properly investigated or prosecuted by the Department of Justice.

It wasn't until a few years later that I started to read about the immense amount of political donations made to key politicians by the very same firms that committed this fraud. I started to wonder if I did what was best for this country or was it the best solution for our Senators and Congressmen. I had an uneasy feeling, but still clung to the belief that I did what was best for America.

In 2012, we started to receive criminal complaints about securities fraud related to Detroit municipal bonds. As had happened in 2008, many were just unsupported complaints, but many were well documented and compelling. What concerned me the most, was that the complaints were nearly identical to the 2008 mortgage backed, bond crisis. The offering documents were fraudulent. The credit ratings on the bonds were wholly misleading. Claims were made that the banks knew the bonds were no good but sold the municipal bonds to their best customers anyway. It was the same core group of Wall Street financial institutions and executives. I spoke to the President, the Attorney General, the Treasury Secretary and the SEC Chairman. They all reminded me of Eric Holder's, directive, not to prosecute Wall Street firms.

Justice Department log circularWe recommended that those responsible for the Detroit bankruptcy be charged. Holder overruled an internal recommendation by a Justice Department prosecutor due to concerns that prosecuting the banks and rating agencies would have adverse consequences on the financial system. Now I was truly frustrated. I was clearly executing two types of justice. One for the politically connected and another for everyone else. This time, I followed the money. Sure enough, the firms involved in this criminal activity flooded the Senate and the Congress with record breaking, political donations. I pointed this out to Attorney General, Eric Holder and he reminded me that I serve at his pleasure and the pleasure of the President. It was my job to follow the Administration's policies. Once again, I did not act. I understood that I was a lawyer and not an Investment Banker, maybe others in the Administration knew better. I reasoned, that if I went along with the Administration, I would have many more opportunities to serve this country.

Before we were able to get a handle on the Detroit bankruptcy, we started to get flooded with credible claims of securities fraud taking place in Puerto Rico. Before long, it was clear the island was teetering on bankruptcy, as well. This time the numbers were staggering. The complainants identified the same three Wall Street credit rating agencies and many of the same banks involved with the Detroit bankruptcy and the 2008 financial crisis. The evidence of criminal wrongdoing was overwhelming. It was our determination that the likely cause of the Puerto Rico bankruptcy was securities fraud, not the island's tax policy or shipping restrictions claimed by many journalists.

jack lew oThis time Eric Holder and later, Loretta Lynch instructed me to leave it alone. I was told that Treasury Secretary Jack Lew, right, would head an Administrative effort to find a solution. Record amounts of money flowed to Senators and Congressmen and no one was criminally charged. The vast majority of that money came from firms involved in this municipal bond fraud. Firms and individuals that were never prosecuted. I later found out Secretary Lew was the COO of one of the major banks involved in all of this fraud. Now Secretary Lew was constructing a solution that would insulate his former bank from prosecutions and fines. When Eric Holder left his position, he went to work for one of the law firms that represented the banks involved in the 2008 mortgage bond crisis, the Detroit bankruptcy and the Puerto Rico bankruptcy

People say hindsight is 20/20. But in 2008 I suspected nothing was going on. If you were to ask me in 2008 if our political leaders were funding their campaigns by selling protection from prosecution and regulatory action, I would have given you a resounding no. If you were to ask me today, I would suggest that a Special Prosecutor be appointed to look at the evidence and make an independent determination.

June 13

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ny times logoNew York Times, Court Seems Open to Allowing Judge to Scrutinize Bid to Drop Flynn Case, Charlie Savage, June 13, 2020 (print ed.). A federal appeals court panel appeared inclined on Friday to permit a trial judge to complete his review of the Justice Department’s attempt to drop a criminal case against President Trump’s former national security adviser Michael T. Flynn, as all three judges asked skeptical questions about a request that they intervene and order the case dismissed.

michael flynn arms foldedThe nearly two hours of oral arguments, conducted by telephone because of the coronavirus pandemic and live-streamed over YouTube, were the latest step in an extraordinary and politically charged case against Mr. Flynn, left. He had twice pleaded guilty to lying to the F.B.I. about his conversations in 2016 with the Russian ambassador before Attorney General William P. Barr decided last month to try to drop the case, a highly unusual intervention.

Rather than immediately granting the government’s request, the federal judge overseeing the matter, Judge Emmet G. Sullivan, began a review of its legitimacy. He appointed John Gleeson, right, a former mafia prosecutor and retired federal judge, to argue against it and set arguments on the matter for July 16.

john gleeson CustomIf the appeals court panel permits that process to play out, the Justice Department will have to respond to a scathing brief Mr. Gleeson submitted this week to Judge Sullivan that portrayed Mr. Barr’s decision as a “gross abuse” of power. The move undermined the rule of law by giving special favor to a presidential ally, offering a dubious rationale as a “pretext,” Mr. Gleeson wrote.

Last month, on the same day that Judge Sullivan appointed Mr. Gleeson to critique the Justice Department’s new position about the case, Mr. Flynn’s defense lawyer, Sidney Powell, asked the Court of Appeals for the District of Columbia Circuit to issue a so-called writ of mandamus that would order Judge Sullivan to immediately end the case.

beth wilkinsonBut Beth Wilkinson, left, a lawyer representing Judge Sullivan, told the appeals court that short-circuiting the trial court’s review of the motion would be premature. And on Friday, all three judges asked questions that suggested they may agree.

Judge Robert L. Wilkins, a 2014 appointee of President Barack Obama, stressed that the federal rule of criminal procedure under which the Justice Department asked Judge Sullivan to dismiss the case says prosecutors may make such a request “with leave of the court,” meaning the judge’s approval. He asked how those words could mean anything if judges had to rubber-stamp requests without review.

Judge Karen L. Henderson, a 1990 appointee of President George Bush, repeatedly said Judge Sullivan might disagree with Mr. Gleeson’s view and dismiss the case. She suggested that “regular order” would be to let that process play out, noting that Ms. Powell and the Justice Department could come back to the appeals court if Judge Sullivan decided instead to sentence Mr. Flynn.

And Judge Neomi Rao, a 2019 appointee of Mr. Trump, pointed out that one of Ms. Powell’s arguments conflicted with Supreme Court precedent. She also asked a Justice Department lawyer whether he could come up with a more concrete reason for why letting Judge Sullivan’s review play out would harm the executive branch — noting that mandamus orders are supposed to be extraordinary and abstract notions of harms are most likely insufficient.

June 12

ny times logoNew York Times, William S. Sessions, F.B.I. Director at a Turbulent Time, Dies at 90, Robert D. McFadden, June 12, 2020. He was applauded for broadening the bureau’s ranks to include more black, Hispanic and female agents. But many of his other actions drew severe criticism.

william sessionsWilliam S. Sessions, right, a director of the F.B.I. under three presidents, from 1987 to 1993, who challenged racial and gender bias in his agency but struggled to redefine its mission in a time of domestic turmoil, and who was fired after being accused of ethical lapses, died on Friday in San Antonio. He was 90.

His daughter Sara Sessions Naughton confirmed the death, at the home of one of Mr. Sessions’s sons. Mr. Sessions had lived in San Antonio as well.

Mr. Sessions arrived in Washington as a figure of stern probity, a Republican hailed by Democrats and Republicans as a scrupulously fair federal judge from West Texas. Nominated by President Ronald Reagan, he sailed through Senate confirmation, 90-0, for what was supposed to be a 10-year term at the helm of 10,000 agents, 56 field offices and the traditions of a storied Federal Bureau of Investigation.

FBI logoBut in a tenure crowded with troubles and stumbling responses, Mr. Sessions presided for less than six years over an agency that mounted much-criticized deadly sieges at Ruby Ridge, Idaho, and Waco, Texas; tried to enlist American librarians to catch Soviet spies; and was forced to concede that agents in the past had overzealously spied on Americans protesting government policies in Central America.

Mr. Sessions was applauded for broadening the F.B.I. ranks to include more black, Hispanic and female agents. Facing complaints and lawsuits alleging bias in an agency that had long been overwhelmingly male and white, he acknowledged serious problems and ordered reforms in its affirmative action programs. He streamlined procedures for bias complaints, reached settlements with black and Hispanic agents, and was credited with hiring and promoting scores of women and members of minority groups.

“The F.B.I. is a proud organization,” he told a congressional hearing in 1989. “It has sometimes been difficult for us to recognize that there is the potential for injustice in our own ranks.”

william websterMr. Sessions had to face further accusations that F.B.I. agents under his predecessor, William H. Webster, left, had violated the rights of groups opposed to administration policies in El Salvador. Civil liberties lawyers produced evidence that agents had infiltrated protest groups, photographed peace rallies and compiled dossiers on thousands of dissidents.

At first Mr. Sessions defended the surveillance, saying that it had not been politically motivated and that it had been halted after it found no evidence that terrorists had been aided. But after further inquiry he conceded that spying on opposition groups, like the Committee in Solidarity with the People of El Salvador, from 1983 to 1985 had been too broad. He disciplined six F.B.I. supervisors and ordered that the files on dissidents be purged.

In another concession, Mr. Sessions in 1988 curtailed a program that encouraged librarians to report people whose reading materials might suggest that they were Soviet spies. After outcries from Congress and library associations, he ordered that the initiative be made strictly voluntary and that it be confined to the New York area.

The first of the sieges under his watch occurred in 1992, when for 11 days the F.B.I.'s hostage rescue team surrounded a fugitive white separatist and others holed up in an isolated cabin on Ruby Ridge, near the Canadian border. After a United States marshal and the fugitive’s wife and son were killed by gunfire, a public furor arose questioning that use of deadly force. Mr. Sessions was not directly involved in the episode or accused of any wrongdoing, but the F.B.I.’s reputation was tarnished.

His agency again faced heavy criticism in 1993 over another violent standoff. This one began when four agents from the federal Bureau of Alcohol, Tobacco, Firearms and Explosives and six members of a cult called the Branch Davidians were killed in a gun battle at their compound near Waco, Texas. After a 51-day F.B.I. siege, President Bill Clinton and Attorney General Janet Reno, fearing mass suicide, authorized a tear-gas assault on April 19. The compound caught fire. At least 75 people died, including many children.

By then, F.B.I. morale was abysmal and Mr. Sessions, a Republican stranded in a Democratic limbo, was under pressure to resign. His critics said he had failed to redefine the F.B.I.’s crime-fighting and domestic counterintelligence missions after the collapse of the Soviet Union in 1991 during the administration of President George Bush. Some associates called him disengaged, a director who relished the trappings of high office but not the grind of bureau business.

But most damaging to Mr. Sessions was an internal Justice Department report — issued late in the Bush administration but pursued by the Clinton administration — accusing him of ethical violations, including using F.B.I. planes to visit relatives and friends around the country, often taking his wife; using agents to run personal errands; and having a $10,000 fence built around his Washington home at federal expense.

bill clinton w“It is because I believe in the principle of an independent F.B.I. that I have refused to voluntarily resign,” he said.

For Mr. Clinton, right, it was a vexing personnel problem. Mr. Sessions’s term still had four and a half years to run. Ten-year terms, subject only to presidential cancellation, were begun after J. Edgar Hoover’s death in 1972 to insulate directors from politics and limit their service in the wake of Hoover’s 48-year reign.

After rejecting a final presidential ultimatum to resign, Mr. Sessions was dismissed by Mr. Clinton on July 19, 1993.

“We cannot have a leadership vacuum at an agency as important to the United States as the F.B.I.,” Mr. Clinton said at the time. “It is time that this difficult chapter in the agency’s history is brought to a close.”

Judge Louis J. Freeh of Federal District Court in Manhattan, a former F.B.I. agent and federal prosecutor, became director on Sept. 1.

Mr. Sessions was the first director to be fired in the F.B.I.’s history; the second was James Comey, dismissed almost 24 years later, in May 2017, by President Trump.

In 1971, President Richard M. Nixon named him United States attorney for the Western District of Texas. In 1974, President Gerald R. Ford appointed him a federal district judge in El Paso. He later became chief district judge in San Antonio.

In 1982 Mr. Sessions drew national attention in presiding over trials that convicted four people in the 1979 assassination of Judge John H. Wood Jr., his predecessor as chief district judge.

After leaving the F.B.I., Mr. Sessions served on Texas commissions on crime, judicial efficiency and homeland security. In 2000, he became a partner in the international law firm Holland & Knight in Washington; he retired in 2016.

During his years at the firm, he often gave pro bono legal counseling in death row and international human rights cases.

His defenders called the complaints trivial. He denied wrongdoing, insisting that his trips had been for legitimate F.B.I. business and that the fence was necessary for his family’s security. For six months, he resisted requests for his resignation.

June 10

washington post logoWashington Post, Flynn committed perjury, court-appointed counsel finds, Spencer S. Hsu, June 10, 2020. A former U.S. judge appointed to oppose the Justice Dept. request to dismiss the prosecution of President Trump’s former national security adviser said that Michael Flynn’s guilty plea to lying to the FBI should stand.

michael flynn arms folded​Michael Flynn, left, committed perjury and his guilty plea of lying to the FBI should not be dismissed, a court-appointed counsel told a federal judge Wednesday, calling the Justice Department’s attempt to undo the conviction “a gross abuse of prosecutorial power.”

In a formal briefing to the judge overseeing Flynn’s case, former New York federal judge John Gleeson argued that though Flynn committed perjury by first admitting under oath to lying to the FBI about his Russian contacts and then seeking to rescind his guilty plea, Trump’s former national security adviser should not face a contempt hearing but instead be punished as part of his sentence.

john gleeson Custom“Flynn has indeed committed perjury in these proceedings, for which he deserves punishment, and the Court has the authority to initiate a prosecution for that crime,” Gleeson, right, wrote in an 82-page opinion. “I respectfully recommend, however, that the Court not exercise that authority. Rather, it should take Flynn’s perjury into account in sentencing him on the offense to which he has already admitted guilt. This approach — rather than a separate prosecution for perjury or contempt — aligns with the Court’s intent to treat this case, and this Defendant, in the same way it would any other.”

emmet sullivan 2012U.S. District Judge Emmet G. Sullivan, left, had paused Flynn’s case to hear from outside groups and appointed Gleeson to argue against the Justice Department’s May 7 motion to immediately drop its prosecution of the retired three-star general. Flynn was the highest-ranking Trump adviser convicted in special counsel Robert S. Mueller III’s investigation of Russian interference in the 2016 U.S. elections.

Gleeson’s response came ahead of a July 16 hearing that Sullivan has scheduled to weigh the unusual request, which came after Attorney General William P. Barr ordered a review of Flynn’s case. In its motion, which is supported by Flynn and which prompted a career department prosecutor to quit the case, the department said it had concluded that Flynn’s January 2017 FBI interview was unjustified and “conducted without any legitimate investigative basis,” so any lies he told about his contacts with Russia and other foreign governments were immaterial to any crime.

In his argument, Gleeson said the government’s “ostensible grounds” for seeking dismissal were “conclusively disproven” by its own earlier briefs; contradict the court’s prior orders and Justice Department positions taken in other cases; and “are riddled with inexplicable and elementary errors of law and fact.”

A former federal prosecutor and judge for 22 years in Brooklyn — best known for putting the late mob boss John Gotti behind bars and presiding over the trial of “Wolf of Wall Street” stockbroker Jordan Belfort — Gleeson wrote that judges are empowered to protect their court’s integrity “from prosecutors who undertake corrupt, politically motivated dismissals. That is what has happened here. The Government has engaged in highly irregular conduct to benefit a political ally of the President.”

On Friday, the U.S. Court of Appeals for the D.C. Circuit is expected to hear arguments over Sullivan’s refusal to immediately dismiss Flynn’s case. Flynn’s lawyers have accused Sullivan of bias and asked the federal appeals court to intervene, asking that it order Sullivan to drop the prosecution immediately or to reassign Flynn’s case to another judge.

Flynn’s attorneys have accused Sullivan of overreaching in the case, arguing that prosecutors have exclusive authority to decide whether to drop a case.

Sullivan’s invitation of Gleeson and others to argue against the dismissal “reveal his plan to continue the case indefinitely, rubbing salt in General Flynn’s open wound from the Government’s misconduct and threatening him with criminal contempt,” Flynn lawyer Sidney Powell wrote in requesting the appeals court review the matter.

Flynn awaits sentencing after pleading guilty to lying in an FBI interview on Jan. 24, 2017 to conceal conversations with Sergey Kislyak, Russia’s ambassador to the United States at the time. The conversations involved talks before Trump took office about how to respond to U.S. sanctions and other policies imposed late in President Barack Obama’s administration after Russia’s election interference.

Trump 'Injustice' Team

washington post logoWashington Post, More than 1,250 former Justice Dept. workers call for Barr probe, Matt Zapotosky, June 10, 2020.  ​The group said it was concerned Attorney General William P. Barr had unleashed law enforcement on peaceful protesters at Lafayette Square near the White House to help facilitate a photo op for President Trump.

More than 1,250 former Justice Department workers on Wednesday called on the agency’s internal watchdog to investigate Attorney General William P. Barr’s involvement in law enforcement’s move last week to push a crowd of largely peaceful demonstrators back from Lafayette Square using horses and gas.

In a letter to Justice Department Inspector General Michael Horowitz, the group said it was “deeply concerned about the Department’s actions, and those of Attorney General William Barr himself, in response to the nationwide lawful gatherings to protest the systemic racism that has plagued this country throughout its history.”

“In particular, we are disturbed by Attorney General Barr’s possible role in ordering law enforcement personnel to suppress a peaceful domestic protest in Lafayette Square on June 1, 2020, for the purpose of enabling President Trump to walk across the street from the White House and stage a photo op at St. John’s Church, a politically motivated event in which Attorney General Barr participated,” the group wrote.

washington post logodana milbank CustomWashington Post, Opinion: So this is why Bill Barr is such a bully, Dana Milbank, right, June 10, 2020 (print ed.) Childhood bullies have a predisposition to become adult bullies, research shows, and, sure enough, it seems Attorney General William Barr was a teenage bully more than 50 years ago.

Back in 1991, during Barr’s confirmation to be George H.W. Bush’s attorney general, lawyer Jimmy Lohman, who overlapped with Barr at New York’s Horace Mann School and later Columbia University, wrote a piece for the little-known Florida Flambeau newspaper about Barr being “my very own high-school tormentor” — a “classic bully” and “power abuser” in the 1960s who “put the crunch on me every chance [he] got.”

william barr new oNobody noticed the Flambeau piece at the time, but Lohman posted it on Facebook when President Trump nominated Barr in 2018, and it took on “a life of its own,” Lohman told me Tuesday from Austin, where Post researcher Alice Crites tracked him down. The article resurfaces in social media each time Barr does something unconscionable — which is often.

The 1991 description of 1963 Barr’s harassment sounds eerily like the 2020 Barr. He “lived to make me miserable,” with a “vicious fixation on my little Jewish ‘commie’ ass,” Lohman alleged, because he wore peace and racial-equality pins. He said the four Barr brothers picketed the school’s “Junior Carnival” because proceeds went to the NAACP, and he alleged that Billy Barr, the “most fanatic rightist” of the four, later “teamed with the New York City riot police to attack anti-war protesters and ‘long hairs.’ ”

June 1

 djt william barr doj photo march 2019

In an open letter, some two thousand former Justice Department employees wrote Attorney General William Barr, shown above at right with Donald Trump, had “once again assaulted the rule of law” in moving to drop the case against Michael Flynn, as reported by the Washington Post.

ny times logoNew York Times Magazine, William Barr’s State of Emergency, Mattathias Schwartz, June 1, 2020. The attorney general has long held an expansive view of presidential power. With multiple crises converging in the run-up to the 2020 election, he is busy putting his theories to work.

Now nearing the end of his career, Barr did not take his current job for the glory. He had already been attorney general once, in President George H.W. Bush’s administration, winning him a reputation as a wise old man — a reputation that, in the eyes of some, his tenure in the Trump administration has tarnished. Nor is he doing it for the money. His time in corporate America earned him tens of millions of dollars in compensation and stock options, and his bearing is still that of a Fortune 500 counsel, cozy manners wrapped around a harder core.

One has to assume that Trump is keeping a close eye on the 70-year-old Barr right now. The powers of the attorney general, as the executive branch’s rule interpreter and law enforcer, peak during moments of social unrest. Barr knows these powers well: He led the Justice Department through the Los Angeles riots of 1992, when Bush invoked the Insurrection Act and deployed thousands of soldiers and Marines. (Later, Barr said the L.A. riots were “opportunistic” gang activity and not “the product of some festering injustice.”) Like Trump, Barr is a stalwart believer in the righteousness of the police; those communities that fail to give the police “respect and support,” he said in a December speech, “might find themselves without the police protection they need.” Last summer, Barr dropped the department’s federal case against the New York police officer who killed Eric Garner during an arrest in 2014.

Barr’s role also gives him influence over three major political fronts heading into November. First, there is Trump’s fight to open the nation’s economy, which could depend in no small part on Barr’s interpretation of federal authority and willingness to twist governors’ arms. Then there are the mechanics of the vote itself, a topic of great partisan controversy about which the Justice Department has shown a growing willingness to weigh in. Finally, there is the ongoing investigation led by John Durham, the United States attorney in Connecticut, into the origins of the F.B.I.’s Russia probe in the run-up to the 2016 election, the findings of which are widely expected to be announced before November.

ny times logoNew York Times, Campaign Funds for Judges Warp Criminal Justice, Study Finds, Adam Liptak, right, June 1, 2020. Judges in Harris adam liptakCounty, Texas, were far more likely to appoint lawyers who had donated to their campaigns to represent poor criminal defendants.

Nearly 60 years ago, the Supreme Court decided the case of Clarence Gideon, a Florida drifter accused of breaking into a poolroom who was tried and convicted without a lawyer. In a unanimous ruling, Gideon v. Wainwright, the court transformed criminal justice in America, announcing that poor people accused of serious crimes were entitled to lawyers paid for by the government.

But the court did not say how the lawyers should be chosen, and many states settled on a system that invites abuses: They let the judge appoint the defendant’s lawyer.

That system has long been criticized for promoting cronyism and dampening the zeal of lawyers who want to stay in the good graces of judges.

A new study documents a more troubling objection. Elected judges, the study found, tend to appoint lawyers who contribute to their campaigns.

“Campaign finance is perverting the criminal justice system,” said Neel U. Sukhatme, a professor at Georgetown Law and an author of the study.

Drawing on six sets of data, the study examined Harris County in Texas, which is home to Houston and is the third most populous county in the nation, with more than four million residents. There is reason to think the problem identified by the study is widespread, as the same basic incentives exist in many jurisdictions.

May 30

washington post logojohn roberts oWashington Post, Supreme Court rules California may enforce certain restrictions on religious gatherings, Robert Barnes, May 30, 2020 (print ed.). Chief Justice John G. Roberts Jr., right, sided with the court’s liberal justices in response to a petition brought by a church in California that had argued the state’s pandemic-related restrictions violated constitutional protections for places of worship.

Slate, Analysis: Roberts Upholds COVID-19 Restrictions on Churches, Scolds Kavanaugh, Mark Joseph Stern, May 30, 2020. Friday at midnight, the Supreme Court rejected a church’s challenge to California’s COVID-19 restrictions by a 5–4 vote, with Chief Justice John Roberts joining the liberals. In a pointed opinion, Roberts indicated that he will not join conservative judges’ escalating efforts to override public health measures in the name of religious freedom. Justice Brett Kavanaugh’s dissent, by contrast, falsely accused the state of religious discrimination in an extremely misleading opinion that omits the most important facts of the case. Roberts went out of his way to scold Kavanaugh’s dishonest vilification of the state.

SCOTUS’ late-night order in South Bay United Pentecostal Church v. Newsom divided the justices into two camps: those who acknowledge reality, and those who ignore it to score ideological points. The case began when a California church accused Gov. Gavin Newsom of violating its religious freedom. Newsom’s current COVID-19 policy limits attendance at houses of worship to 25 percent of building capacity or a maximum of 100 attendees, whichever is lower. At the same time, it allows certain secular businesses, like grocery stores, to operate under looser guidelines, allowing more people to enter. The church claimed this disparate treatment between churches and commercial establishments runs afoul of the First Amendment.

As Roberts noted, however, California does not impose uniform rules on all places where people assemble. The state does strictly limit church attendance. But it applies “similar or more severe restrictions” to “lectures, concerts, movie showings, spectator sports, and theatrical performances.” So the question for the court is less constitutional than scientific: From an epidemiological perspective, are churches more like grocery stores or concerts? And that, the chief justice concluded, is a question for lawmakers, not federal judges.

“The precise question of when restrictions on particular social activities should be lifted during the pandemic,” Roberts declared, “is a dynamic and fact-intensive matter subject to reasonable disagreement.” The Constitution leaves such decisions “to the politically accountable officials of the state,” whose decisions “should not be subject to second-guessing” by judges who lack “background, competence, and expertise to assess public health.” Multiple coronavirus outbreaks in California have been traced back to religious services. California has good reason to treat churches more like concerts—where people “congregate in large groups” and “remain in close proximity for extended periods”—than grocery stores, where they can social distance. For courts, that should be the end of the matter.

Kavanaugh, in dissent, viewed the case through a different lens. Whereas Roberts began by noting that COVID-19 has “killed thousands of people in California and more than 100,000 nationwide,” Kavanaugh crafted a narrative of invidious religious discrimination. His dissent reads like a brief by the church, not a judicial opinion. Kavanaugh alleged that Newsom’s order “indisputably discriminates against religion” in violation of the free exercise clause. For support, the justice insisted that “comparable secular businesses,” like grocery stores and pharmacies, “are not subject” to the same restrictions imposed on churches. California must have a “compelling justification” for this disparate treatment, and he saw none.

But Kavanaugh’s assertion that California treats churches and “comparable secular businesses” differently begs the question: what is a comparable secular business? When it comes to the spread of infectious disease, is a church really just like a grocery store, where people spend as little time as possible, separated by aisles and shopping carts, rarely speaking to one another? Or is it more like a concert, where people congregate for lengthy periods, shoulder to shoulder, often speaking or singing and thereby spreading droplets that may contain the coronavirus?

What is genuinely shocking about Kavanaugh’s dissent is that he does not even address this question. The dispute lies at the heart of the case, and Kavanaugh ignores it. He simply takes it as a given that churches are “comparable” to grocery stores when it comes to risk of spreading COVID-19. By warping the facts, Kavanaugh paints California’s rules as irrationally discriminatory, when in fact they are based on medical advice Newsom has right now. If the justice wants to override public health measures during a pandemic, shouldn’t he at least admit that he’s substituting his own scientific judgment for that of a democratically elected lawmaker’s?

May 29

ny times logoNew York Times, Editorial: The Supreme Court Lets Cops Get Away With Murder, Editorial Board, May 29, 2020. The courts protected police abuses for years before George Floyd’s death. It’s time to rethink “qualified immunity.”

May 28

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washington post logoWashington Post, 100,000 U.S. DEATHS: Pandemic has exposed nation’s vulnerabilities and dangerous divide, Marc Fisher, May 28, 2020. The marker of 100,000 deaths comes less than three months after the first American was reported to have died. The people most ravaged are those whose suffering often is unseen — the elderly, African Americans and working poor.

One hundred thousand Americans dead in less than four months.

american flag upside down distressIt’s as if every person in Edison, N.J., or Kenosha, Wis., died. It’s half the population of Salt Lake City or Grand Rapids, Mich. It’s about 20 times the number of people killed in homicides in that length of time, about twice the number who die of strokes.

The death toll from the coronavirus passed that hard-to-fathom marker on Wednesday, which slipped by like so many other days in this dark spring, one more spin of the Earth, one more headline in a numbing cascade of grim news.

Nearly three months into the brunt of the epidemic, 14 percent of Americans say they know someone who has succumbed to the virus.

These 100,000 are not nameless numbers, nor are they mostly famous people. They are, overwhelmingly, elderly — in some states, nearly two-thirds of the dead were 80 or older. They are disproportionately poor and black and Latino. Among the younger victims, many did work that allowed others to stay at home, out of the virus’s reach.

For the most part, they have died alone, leaving parents and siblings and lovers and friends with final memories not of hugs and whispered devotion, but of miniature images on a computer screen, tinny voices on the phone, hands pressed against a window.

washington post logoWashington Post, Americans have filed more than 40 million jobless claims in past 10 weeks, Tony Romm​, May 28, 2020. The new Labor Department data said 2.1 million Americans filed for jobless claims last week, adding to an already tremendous number of people who have been laid off.

Americans have filed more than 40 million claims for jobless benefits in the past 10 weeks, according to new Labor Department data, laying bare a tremendous and sudden disruption in the U.S. economy that is already changing the types of jobs desperate workers are looking to fill.

About 2.1 million of those new unemployment claims were filed just last week, the federal data show, marking a slight decrease from prior weeks while still reflecting the historic toll wrought by a pandemic that has temporarily - and in some cases permanently - shuttered businesses nationwide.

In recent weeks, many states have started lifting restrictions imposed in March meant to limit the spread of the coronavirus, which by Wednesday, had killed more than 100,000 across the country.

But the recovery process has been uneven, hamstringing some states and employers more than others. In a number of states, a very large segment of the labor force is now collecting unemployment benefits. For example, 26.7 percent of the labor force in Nevada is collecting unemployment benefits, as are 25 percent in Florida. Even 20.6 percent of the labor force in California -- the U.S.'s most populous state -- is collecting jobless claims.

washington post logoWashington Post, A numbers-obsessed Trump is uncharacteristically silent on this bleak milestone, Ashley Parker, May 28, 2020.  The president’s public schedule this week contains no special commemoration, no moment of silence, no collective sharing of grief.

 

U.S. 2020 Elections / Politics

djt smiling file

 ny times logoNew York Times, Executive Order Is Expected to Curtail Protections for Social Media Companies, Maggie Haberman and Kate Conger, May 28, 2020. The move is almost certain to face a court challenge and signals the latest salvo by President Trump to crack twitter bird Customdown on online platforms.

The Trump administration is preparing an executive order intended to curtail the legal protections that shield social media companies from liability for what gets posted on their platforms, two senior administration officials said early Thursday.

facebook logoSuch an order, which officials said was still being drafted and was subject to change, would make it easier for federal regulators to argue that companies like Facebook, Google, YouTube and Twitter are suppressing free speech when they move to suspend users or delete posts, among other examples.

The move is almost certain to face a court challenge and is the latest salvo by President Trump in his repeated threats to crack down on online platforms. Twitter this week attached fact-checking notices to two of the president’s tweets after he made false claims about voter fraud, and Mr. Trump and his supporters have long accused social media companies of silencing conservative voices.

youtube logo CustomWhite House officials said the president would sign the order later Thursday, but they declined to comment on its content. A spokesman for Twitter declined to comment.

Under Section 230 of the Communications Decency Act, online companies have broad immunity from liability for content created by their users.

But the draft of the executive order, which refers to what it calls “selective censoring,” would allow the Commerce Department to try to refocus how broadly Section 230 is applied, and to let the Federal Trade Commission bulk up a tool for reporting online bias.

Palmer Report, Analysis: Donald Trump isn’t the one with the leverage here, Bill Palmer, right, May 28, 2020. As is increasingly the case these bill palmer report logo headerbill palmerdays, Donald Trump is attempting to write checks he can’t cash when it comes to the threats he’s making.

He spent all of Wednesday threatening to punish Twitter, or even shut it down entirely, because the site dared to place a fact check warning on two of his false tweets.

Here’s the thing, though. On Wednesday night we saw Twitter CEO Jack Dorsey fire back at Trump, and that’s a good thing. But while watching the exchange play out between Trump and Jack, something occurred to me: they’re both using Jack’s platform to do it.

donald trump twitterYes, Trump has other ways of getting his message across, including television. But it’s long been clear that Trump considers Twitter to be his most effective communication tool. The fact that Trump had to use Twitter to threaten to shut down Twitter means that Trump isn’t the one with the leverage here.

Yes, Twitter will take a hit in the popularity department if Donald Trump stops using it as his main platform.

But Trump has more to lose.He’s on track to lose a presidential election, and he’ll end up indicted and put on criminal trial in New York if he loses. If Trump sees tweeting as one of his key campaign strategies, he’s not at all in a position to walk away from Twitter. Twitter might lose some traffic if this feud escalates, but Trump could lose everything.

washington post logoWashington Post, Cuomo presses Trump to spend big on infrastructure to ‘supercharge’ coronavirus recovery, Griff Witte, May 28, 2020 (print ed.). New York's governor said after a White House visit that the president “gets it,” but he slammed congressional Republicans for not wanting to inject additional money into states where finances have been pummeled by the virus.

 

DOJ Probes Reporter After Barr Exposé

Wayne Madsen Report (WMR), Commentary: Barr's DOJ demanded and received access to WMR editor's email / iPhone account, Wayne Madsen, May 28, 2020. On February 14, 2019, William Barr was sworn in as Attorney General, a position in which he has proceeded to act as Donald Trump's personal lawyer and hatchet man.

A little over a month from Barr assuming his position, his Department of Justice issued a legal demand to Microsoft and Apple, approved by the U.S. District Court for the District of Columbia, "for data related to your Email account."

On March 29, 2019, the same day Barr's Justice Department demanded from Microsoft and Apple access to this editor's Hotmail and iPhone data, WMR published a scathing article concerning Barr. Something in the article obviously triggered Barr into demanding access to Hotmail and Apple data, possibly to discover potential leakers in DOJ or the FBI.

U.S. Crime, Courts, Scandals

ny times logoNew York Times, Opinion: Trump’s ‘Horrifying Lies’ About Lori Klausutis May Cross a Legal Line, Peter H. Schuck (emeritus professor of law at Yale and Darling Foundation visiting professor at the University of California, Berkeley, this semester), May 28, 2020. The president’s innuendo about the death of a congressional staffer in 2001 could lead to a costly court judgment against him.

President Trump and his minions relentlessly grind out despicable acts — gratuitous insults to war heroes, over 18,000 (and counting) false or misleading statements, many decisions courts have ruled illegal. But Mr. Trump’s wantonly cruel tweets about the tragic death in 2001 of Lori Klausutis are distinctive: They may constitute intentional torts for which a civil jury could award punitive damages against him.

Last week, Timothy Klausutis, Lori’s widower husband, wrote a remarkably restrained, poignant letter to Jack Dorsey, the head of Twitter, citing the pain that Mr. Trump’s “horrifying lies” about his wife’s death have caused him and the family, and asking Mr. Dorsey to remove Mr. Trump’s tweet.

Mr. Dorsey has refused, most likely because the 1996 Communications Decency Act probably protects him from defamation claims for publishing the words of another. However Twitter added a warning label to the president’s false tweets on Tuesday about mail-in ballots, the first time the service has taken such a step.

Mr. Trump’s first tort is called intentional infliction of emotional distress, which the courts developed precisely to condemn wanton cruelty to another person who suffers emotionally as a result. This tort, which is sometimes called “outrage,” readily applies to Mr. Trump’s tweets about Ms. Klausutis. They were intentional and reckless, and were “extreme and outrageous” without a scintilla of evidence to support them. And they caused severe emotional distress — the protracted, daily-felt grief described in Mr. Klausutis’s letter to Mr. Dorsey.

Although the tweets targeted Mr. Scarborough, his own infliction of emotional distress claim may be weaker than Mr. Klausutis’s.

Even so, Mr. Scarborough might succeed in a defamation suit against Mr. Trump for reputational harm. After all, the president’s innuendo that Mr. Scarborough may have murdered Lori Klausutis — presumably credible to the many Trump Twitter followers who subscribe to conspiracy theories — may seriously harm Mr. Scarborough’s reputation with them and others.

Mr. Trump, moreover, often aims his tweets to lead multiple news cycles affecting well beyond his Twitter followers. The president will surely argue that he has not actually accused anyone of murder and was merely “raising questions.” But courts have held that such calculated innuendo can constitute defamation, depending on the facts. This would be for a jury to decide.

Mr. Scarborough, as a public figure in his own right, must satisfy the Supreme Court’s demanding test for defamation liability in its landmark New York Times v. Sullivan decision.

Under this test — designed to free public debate from being unduly constrained by fear of legal liability — Mr. Scarborough must prove that Mr. Trump made his defamatory comment either with actual knowledge that it was false or with “reckless disregard” for whether it was true or false. But the president’s tweets about the Klausutis case probably satisfy this test. After all, he has not cited any evidence to support his calumny either before the tweets or in response to the backlash since then. If the jury found for Mr. Scarborough, it could require Mr. Trump to pay substantial punitive damages in addition to compensation for his reputational harm.

Under the court’s unanimous 1998 ruling in Paula Jones’s sexual harassment suit against President Bill Clinton, both of these lawsuits — by Mr. Klausutis and by Mr. Scarborough — could proceed against the president while he is still in office. Because his tweets reach followers nationwide, the lawsuits could probably be brought in any state. And since the subject of his tweets had nothing to do with his presidential responsibilities, he probably could not hide behind an assertion of executive privilege.

washington post logoWashington Post, Barr appoints Texas prosecutor to review Obama officials’ ‘unmasking’ requests, Devlin Barrett, May 28, 2020. This is an offshoot of an investigation underway by the U.S. Attorney of Connecticut, who was tapped by Barr to investigate the origins of the 2016 election interference probe that has overshadowed Trump’s presidency.

Attorney General William P. Barr has appointed a U.S. attorney in Texas to scrutinize Obama-era officials who sought to identify anonymized names in government documents that turned out to be people connected to then-President-elect Trump, a Justice Department official said Wednesday.

In an interview with Fox News’s Sean Hannity, Justice Department spokeswoman Kerri Kupec said the attorney general had tasked John Bash, the U.S. attorney in the Western District of Texas, to examine the practice of “unmasking,” which many Republicans charge was abused by the previous administration to unfairly target people close to Trump.

May 24

washington post logoWashington Post, Federal judge hires high-powered D.C. attorney to defend his actions in Flynn case, Carol D. Leonnig and Spencer S. Hsu, May 24, 2020 (print ed.). The federal judge who refused a Justice Department request to immediately drop the prosecution of former Michael Flynn Harvard 2014Trump adviser Michael Flynn, right, has hired a high-profile trial lawyer to argue his reasons for investigating whether dismissing the case is legally or ethically appropriate.

In a rare step that adds to this criminal case’s already unusual path, U.S. District Judge Emmet G. Sullivan has beth wilkinsonretained Beth Wilkinson, left, to represent him in defending his decision to a federal appeals court in Washington, according to a person familiar with the hire who spoke on the condition of anonymity because of the sensitivity of the matter.

The U.S. District Court of Appeals for the District of Columbia Circuit is now examining the judge’s actions and the larger case against Flynn after lawyers for President Trump’s former national security adviser asked the court to force Sullivan to toss Flynn’s guilty plea.

Wilkinson, known for her top-notch legal skills and get-results style, is expected to file a notice with the court in the coming week about representing the judge. She declined to comment when reached Friday evening. Sullivan also declined to comment through his office.

emmet sullivan 2012A federal judge doesn’t typically hire private counsel to respond to an appeals court, and yet so much about Flynn’s case has been a departure from the norm. A defendant doesn’t normally plead guilty under oath and then try to withdraw that admission, as Flynn did. The Justice Department almost never drops a case once it essentially won a conviction, a signed guilty plea, as Attorney General William P. Barr ordered earlier this month.

About two weeks ago, Sullivan, left, pushed off Barr’s request and paused Flynn’s case to invite outside groups and a retired federal judge to argue against the Justice Department’s proposal.

Sullivan also asked retired New York judge John Gleeson to examine whether Flynn may have committed perjury while pleading guilty to lying about his pre-inauguration contacts with Russia’s ambassador. Flynn’s lawyers then accused Sullivan of bias and asked the U.S. Court of Appeals to intervene.

On Thursday, that higher court took the extraordinary step of ordering Sullivan to answer within 10 days. The court also invited the Justice Department to comment.

  • Washington Post, FBI director orders internal review of Michael Flynn case, Matt Zapotosky and Devlin Barrett, May 23, 2020 (print ed.). The president had accused FBI Director Christopher A. Wray of “skirting” controversies about the bureau’s investigation.

May 22

Norma McCorvey, center left, raises arm in triumph with her attorney Gloria Allred following 1973 Roe v. Wade decision, as portrayed in new FX documentary

Norma McCorvey, center left, raises arm in triumph with her attorney Gloria Allred and Supreme Court building in background following 1973 Roe v. Wade decision, as portrayed in new FX documentary "AKA Jane Roe," illustrated by Associated Press photo by J. Scott Applewhite.

ny times logoNew York Times, Opinion: Jane Roe’s Pro-Life Conversion Was a Con, Michelle Goldberg, right, May 22, 2020. Norma McCorvey makes a shocking michelle goldberg thumbdeathbed confession.

In 2006, I went to Jackson, Miss., to report on the weeklong siege of the state’s last abortion clinic by the anti-abortion group Operation Save America. Flip Benham, then the group’s leader, had T-shirts made up, black with white lettering, saying, “Homosexuality Is Sin! Islam Is a Lie! Abortion Is Murder! Some Issues Are Just Black and White!”

By his side was Norma McCorvey, the Jane Roe in Roe v. Wade. In 1995 Benham opened the headquarters of Operation Rescue, an earlier iteration of Operation Save America, next to the Texas abortion clinic where McCorvey worked, and converted her during her smoke breaks. In Mississippi, she tore up the decision bearing her alias, telling the abortion protesters: “You’re so beautiful. I’m so sorry for what I did.” That night, the group burned all the scraps in a church parking lot. McCorvey lit the match.

It was a cultural coup for the right when McCorvey publicly turned against legal abortion. Jane Roe rejecting Roe v. Wade was something abortion opponents could throw in the faces of pro-choice activists. So it is a bombshell that McCorvey has revealed, in the posthumous new documentary AKA Jane Roe, that it was, at least in some sense, an act. “I am a good actress,” she said.

The movie, which debuts on Friday on FX, also makes clear that anti-abortion leaders understood this. They’ve been perpetrating a scam on us all for 25 years.

In the documentary’s final 20 minutes, McCorvey, who died of heart failure in 2017, gives what she calls her “deathbed confession.” She and the pro-life movement, she said, were using each other: “I took their money, and they put me out in front of the cameras and told me what to say, and that’s what I’d say.”

In her career as a pro-life icon, she collected nearly half a million dollars. But at the end of her life, she once again affirmed a belief in the right to abortion, and evinced pride in Roe v. Wade. “Roe isn’t going anywhere,” she said early on election night in 2016, when she thought Hillary Clinton was going to win. “They can try, but it’s not happening, baby.”

Given the political damage done by her cynical about-face, it’s surprising how sympathetic McCorvey — campy, foul-mouthed and irreverent — comes off. She was a lost soul from a traumatic background. Her father was absent and her mother beat her, and she ended up in reform school after running away from home at 10. She entered an abusive marriage at 16, became addicted to drugs and alcohol, and lost custody of her first child.

norma mccorvery fx documentary

Christianity Today, Opinion: Deathbed Apology: Norma McCorvey’s Pro-Life Friends Tell Another Story, Jonathon Van Maren, May 22, 2020. What the ‘AKA Jane Roe’ documentary gets wrong.

"In February 1970, I was Norma McCorvey, a pregnant street person, a twenty-one-year-old woman in big trouble,” writes McCorvey in her 1994 memoir I Am Roe. “I became Jane Roe at a corner table at Columbo’s, an Italian restaurant at Mockingbird Lane and Greenville Avenue in Dallas.”

That short meeting with Sarah Weddington and Linda Coffee, two lawyers looking for the right case to strike a blow on behalf of abortion rights, transformed McCorvey’s life. The following month, Weddington and Coffee filed a lawsuit against Dallas district attorney Henry Wade for enforcing Texas’s abortion law and used McCorvey as their lead plaintiff. The case ended up at the United States Supreme Court, and on January 22, 1973, the justices overturned the law seven-to-two and legalized abortion in all fifty states.

norma mccorvey jane roe 1989On that day, Norma McCorvey (shown at left in a 1989 photo) became Jane Roe of Roe v. Wade — part symbol, part person, trapped in the maelstrom of history and the sound and fury of America’s abortion wars. When she left the abortion industry for the pro-life movement in 1994, she made headlines across the nation.

Now again, McCorvey is making headlines as the bombshell subject of a new FX documentary, AKA Jane Roe, which claims that she changed her mind a second time and reverted back to a pro-abortion position. Producer Nick Sweeney tells a story in which McCorvey’s relationship with the pro-life movement was strictly a financial one.

In a series of interviews that she dubbed her “deathbed confession,” McCorvey calls it all an “act.”

“I was the big fish,” McCorvey says in the documentary. “I think it was a mutual thing … I took their money and they’d put me out in front of the cameras and tell me what to say.”

Numerous headlines have suggested that McCorvey was “paid to change her mind” on abortion, despite the fact that those are not actually her words. In trying to unearth the real narrative, I spoke with many of her close friends, three of whom went on the record. Those three, in addition to others, reject the idea that she was bribed into switching sides. Their story of McCorvey and their relationship with her is much more complex, intimate, and humane.

“For this new documentary to quote Norma saying she was not genuinely pro-life is very suspicious,” said Father Frank Pavone, director of Priests for Life. “I knew Norma. Her pro-life convictions were not an act.”

Pavone was part of McCorvey’s faith story. As she described in her second memoir, Won By Love, her relationship with various pro-lifers led her to Christianity and also to the pro-life movement. On August 8, 1995, she was baptized in a backyard swimming pool in Dallas, Texas. In 1998, she became a Roman Catholic and adopted Pavone as her spiritual director. (His organization recently released a statement on the Sweeney documentary.)

Starting the year of her baptism, McCorvey spoke at numerous pro-life events and publicly expressed remorse for her role in the legalization of abortion. In 2004, she even sought to have the Supreme Court overturn Roe v. Wade based on new evidence that abortion hurts women. (The case was dismissed the following year.)

Was McCorvey bribed for her ongoing contributions to the movement? Sweeney’s evidence for this claim — that over the decades, McCorvey had been paid at least $456,911 in gifts — supports an opposite conclusion, in my opinion. The figure is not a high one, considering that some pro-life speakers often earn upwards of $10,000 for a single speaking engagement. And being paid to advocate for a position is not the same thing as being paid to change your mind.

More importantly, my sources suggest that these monetary contributions were primarily given not for coercive purposes but for supportive ones. McCorvey’s pro-life friends cared deeply for her and often helped her financially when she was in need.

SCOTUSblog, Analysis: Results from the court’s experiment with a new oral argument format, Adam Feldman, May 22, 2020. Editor’s note: This is the second post in a series analyzing the Supreme Court’s telephonic oral arguments with live audio instituted due to the COVID-19 pandemic. Data for this project was provided by Oyez, a free law project by Justia and the Legal Information Institute of Cornell Law School. Kalvis Golde and Katie Bart both provided invaluable assistance in aggregating data for this post.We recently witnessed what was likely the biggest experiment in the history of Supreme Court oral arguments.

Now, even though potentially ephemeral, the new structure implemented in May included unprecedented changes to the argument format. The three main alterations were that the arguments occurred remotely, so for the first time during arguments the justices were not in the same room with the advocates and one another; that the court used an ordering mechanism whereby the justices asked questions individually and in order of seniority; and, critically, that the justices were limited in the time they could question.

With this new ordering mechanism, Chief Justice John Roberts took on a new role as timekeeper. In this role, Roberts noted when it was time to shift between each justice’s turn questioning the advocate. This did not always move smoothly, because certain justices were hampered by still-activated mute buttons that prevented them from seamlessly assuming the role of questioner. Transitions between questioning justices also were made difficult because Roberts needed to decide when was an appropriate point to end one justice’s turn and move to another.

Roberts could have granted the justices equal time, simply cutting a justice off when their time was over, but instead he attempted to let justices finish their questions. In certain instances this meant stopping an advocate or justice in the middle of a statement, and in other instances it meant allowing a justice or advocate more time to finish a question or statement after the time allotted was already complete. Beyond Roberts’ timekeeping methods, the justices, knowing they were limited in their individual time to interact with the advocates, needed to decide how to balance their time between questions and answers. This post examines how time was kept and spent during the May oral argument sitting.
Methods

Because these arguments were different in kind from previous arguments, new methods were used to track speech across justices than in prior posts. To track time, we used Oyez’s time-stamped oral argument data. We initially pulled the JavaScript Object Notation, known as JSON, text from each oral argument from the May sitting from Oyez’s repository and transformed it into spreadsheet format. The JSON data tracks each actor’s speech and the time taken for each speaking instance starting at time zero. For instance, Roberts may have said something from 0-5 seconds, then Justice Clarence Thomas from 5-7 and then an attorney from 7-10. This would tell us that Roberts spoke for five seconds, Thomas for two and the attorney for three. Using this method, we tracked the amount of time each actor spoke across each speaking turn in each of the arguments.

We then aggregated these times into three sets. The broadest set was the relative time given to the petitioner’s and respondent’s attorneys (and respective amici) during an argument. The next level was the relative amount of time spent in each justice’s turn, including time taken by the attorney and the justice. The time Roberts took interjecting to switch between justices was omitted from this measure. The most specific level was the time taken for questions and answers within each justice’s turn. Times for attorneys’ opening and closing statements were removed from justices’ individual times, because they were unrelated to any justice’s turn.
Justices Sonia Sotomayor and Elena Kagan were both recused from one argument apiece. They were given no time measures for these arguments.
Time by side in each case: Roberts’ decisions

At the broadest level, Roberts had to balance the time given to the petitioners and the respondents in each case. This was complicated by the presence of multiple attorneys for particular sides in some cases. Still, for the most part, the amount of time given to each side was fairly evenly balanced. The following graph looks by case at the difference in time allotted to respondents subtracted from the time allotted to petitioners.

May 18

ny times logoNew York Times, Passed By for Decades, Clarence Thomas Is a New Symbol of the Trump Era, Nicolas Casey, May 18, 2020. He isn’t yet the pop culture star that Ruth Bader Ginsburg — “Notorious R.B.G.” to many — is. But his fans think he could be.

clarence thomas official wAmong certain conservatives, an idea has started to take hold: Could Justice Clarence Thomas ever be the kind of pop-culture icon to his followers that Justice Ruth Bader Ginsburg has become to hers?

Justice Ginsburg, 87, has a book to her name, a touring museum exhibition and a surprise box-office hit in a 2018 documentary about her life. She is tattooed on her fans. Her personal trainer has his own book out. She was appointed to the bench in 1993 but came to realize and embrace this level of celebrity in recent years when her dissents became liberal rallying calls, leading to the nickname homage — and then best-selling book on her life — “The Notorious R.B.G.”

Justice Thomas, the Supreme Court’s most conservative member, is catching up in his own way at age 71.

After 28 years of rarely speaking from the bench, Justice Thomas is newly in the public eye (or ear) as he regularly asks questions during oral arguments that are being conducted by conference call and broadcast live during the pandemic.

He was the subject of a recent book, The Enigma of Clarence Thomas, which led to a flurry of articles and book reviews on his life and legal thought. A new biographical documentary, made by the conservative filmmaker Michael Pack, airs Monday on PBS. For the project, the justice spoke to filmmakers for 30 hours — an astounding feat for a jurist who once went 10 years without asking a question from the bench.

“He would have never said, ‘Gee whiz, I should be an icon,’” said Helgi Walker, a lawyer at the firm Gibson Dunn who clerked for Justice Thomas in 1995 and 1996. “But life is long, and it’s amazing how things can turn out sometimes.”

clarence virginia thomas swearing inThomas is shown taking an office oath in 1991, with his wife Virginia "Ginni" Thomas and Chief Justice William Rehnquist administering the oath.

Since his confirmation hearings in 1991, which included sexual harassment allegations, Justice Thomas has largely been out of the public eye. And for decades, his legal thinking was considered too extreme even for the court’s conservative members, who often declined to join his dissents and concurrences.

Justice Thomas hasn’t changed, nor has his bitterness about the way his confirmation hearings unfolded. But the political moment has. Renewed interest in his life, work and philosophy may be coming from the same place as that in Justice Ginsburg: the Trump era.

Justice Thomas, currently the longest-serving justice, is known as Mr. Trump’s favorite on the court, with many in the legal world citing the numerous former Thomas clerks who have been tapped for the federal bench.

As Justice Ginsburg has become the flag bearer of the Supreme Court’s diminished judicial left, Justice Thomas, who spent years dissenting on the fringes, is a potent symbol for an ascendant conservative wing.

“He’s the most right-wing member of the court, and we are in a right-wing moment,” said Randall Kennedy, a professor at Harvard Law School and critic of the justice. In a piece in The Nation last fall, he criticized those who he said had recently “been solicitous of Thomas” in terms of his biography and his legal thinking, writing that he’d once been the same himself.

Last November in Washington, when gathering in a group was festive and not contested, a largely libertarian crowd convened at the Cato Institute to watch the documentary about Justice Thomas, “Created Equal: Clarence in His Own Words,” in which Justice Thomas laid out again his side of the confirmation showdown. Archival footage showed a younger Mr. Thomas in a red-and-grey tie.

“As far as I am concerned, it is a high-tech lynching,” the younger Mr. Thomas said of the hearing as the film’s audience nodded approvingly.

The camera then flipped to another man who has re-emerged into the political debate lately: Joe Biden, who was the chairman of the Senate Judiciary Committee at the time. There were guffaws until the camera turned elsewhere. Justice Thomas then appeared on the screen years later, in a dark suit and with white hair.

“I mean, come on, we know what this is all about,” he says to the camera. “This is the wrong black guy. He has to be destroyed, just say it.”

The line had an impact on Carol M. Swain, a former law professor and conservative political commentator who recently watched the film and said she saw the 1991 hearings in the context of Justice Brett Kavanaugh’s in 2018. “It’s not just an agenda to derail a nomination, it’s an effort to destroy a person,” she said.

Many conservatives also now see vindication in the way the court has recently begun to adopt Justice Thomas’s thinking. His legal views spent the 1990s and the early 2000s bottled up as dissents and concurrences that his colleagues often did not sign onto. Now, many are becoming the law of the land.

May 17

Trump Reprisals Continue

state dept map logo Small

washington post logoWashington Post, With firing of State Dept. inspector general, Trump ramps up retaliatory purge, Philip Rucker, Karen DeYoung, Lisa Rein and Hannah Knowles, May 17, 2020 (print ed.). The termination of Steve A. Linick again showed the president challenging norms of U.S. governance in his push to rid the federal bureaucracy of officials he considers insufficiently loyal to or protective of him and his administration.

President Trump accelerated his retaliatory purge of public servants by firing the State Department’s inspector general, who had played a minor role in the president’s impeachment proceedings and was said to have begun investigating alleged misconduct by Secretary of State Mike Pompeo.

steve linick 2013 CustomActing on Pompeo’s recommendation, Trump abruptly terminated Steve A. Linick, left, late Friday night, again challenging established norms of American governance in his push to rid the federal bureaucracy of officials he considers insufficiently loyal to or protective of him and his administration. Trump replaced Linick with Stephen J. Akard, a trusted ally of Vice President Pence and the diplomat who directs the Office of Foreign Missions. He also replaced the acting inspector general at the Department of Transportation on Friday night.

Inspectors general serve as internal government watchdogs conducting oversight of federal agencies — and although they technically are political appointees, their independence has long been protected. Trump’s move — his fourth such firing during the coronavirus pandemic — drew swift condemnations from Democrats and at least one Republican on Capitol Hill.

House Speaker Nancy Pelosi (D-Calif.) decried what she termed a “dangerous pattern of retaliation against the patriotic public servants charged with conducting oversight on behalf of the American people.”

House Foreign Affairs Committee Chairman Eliot L. Engel (D-N.Y.) and the Senate Foreign Relations Committee’s ranking Democrat, Robert Menendez (N.J.), jointly launched an investigation Saturday into Linick’s firing.

ny times logoNew York Times, President Trump Ousted State Dept. Watchdog at Pompeo’s Urging, Catie Edmondson and Michael D. Shear, May 17, 2020 (print ed.). Congressional Democrats opened an investigation into what they said “may be an act of illegal retaliation” by Secretary of State Mike Pompeo. The lawmakers said Steve Linick, the State Department’s inspector general, had opened an investigation into Secretary of State’s conduct.

mike pompeo portraitSecretary of State Mike Pompeo, right, urged President Trump to fire the official responsible for fighting waste and fraud in his department, a White House official said Saturday, a recommendation certain to come under scrutiny after congressional Democrats opened an investigation into what they said “may be an act of illegal retaliation.”

Mr. Trump told Speaker Nancy Pelosi late Friday night that he was ousting Steve A. Linick, who led the office of the inspector general at the State Department, and replacing him with an ambassador with close ties to Vice President Mike Pence.

Representative Eliot L. Engel, Democrat of New York and the chairman of the House Committee on Foreign Affairs, immediately called the decision to remove Mr. Linick an “outrageous act” meant to protect Mr. Pompeo from accountability.

By Saturday, Mr. Engel and Senator Bob Menendez of New Jersey, the top Democrat on the Senate Foreign Relations Committee, had opened an investigation into Mr. Linick’s removal, citing a pattern of “politically motivated firing of inspectors general.”

In letters to the White House, the State Department and Mr. Linick, the two Democrats wrote that they believed Mr. Linick had opened an investigation into wrongdoing by Mr. Pompeo and that Mr. Pompeo had responded by recommending that Mr. Linick be fired. The lawmakers did not provide any more details, but a Democratic aide said that Mr. Linick had been looking into whether Mr. Pompeo improperly used a political appointee at the State Department to perform personal tasks for him and his wife.

Since starting his current job in April 2018, Mr. Pompeo has come under growing public scrutiny for what critics say is his use of the State Department’s resources for personal endeavors. Mr. Menendez has called for Mr. Pompeo to explain how he can justify frequent trips to Kansas, his adopted home state, using State Department funds and aircraft. He has brought his wife, Susan Pompeo, on many trips abroad, telling others she is a “force multiplier” for him. And CNN reported last year that congressional officials were looking at potential misuse of diplomatic security personnel for personal errands. That did not result in the opening of a formal inquiry.

washington post logoWashington Post, Analysis: Trump’s slow-motion Friday night massacre of inspectors general, Aaron Blake, May 17, 2020 (print ed.). The unprecedented spate of removals and their timing have reinforced how President Trump is rather obviously seeking to undermine independent oversight of his administration.

The Friday news dump — also known as the Friday night news dump — is a political trick with plenty of precedent. Wait till the vast majority of the news business clocks out for on the week, and announce something you’d rather they not cover as much. People won’t be reading as much news at that point anyway, and perhaps it’ll be dismissed as old news by Monday morning.

Few are as blatant about using this tactic, though, as the Trump White House.

News broke late Friday night that Trump had removed the inspector general for the State Department, Steve Linick. It’s the third time in six weeks that such a move has been announced on a Friday night, with each inspector general having done something to pretty obviously alienate Trump. The unprecedented spate of removals has reinforced how Trump is rather obviously seeking to undermine independent oversight of his administration — and the timing of each of them only reinforces that.

djt tweet kayleigh supergirl Custom

The impeached Donald Trump retweeted on Saturday the above image of his new communications director.

Palmer Report, Opinion: There goes that argument, Bill Palmer, May 17, 2020. This past week’s Supreme Court arguments were made remotely via audio conference, so we’ll just have to assume that Donald Trump’s attorneys had a straight face when they argued that Trump is simply too busy in his role as President of the United States to bother answering a subpoena from Congress, or from a grand jury.

bill palmer report logo headerBut if Trump’s attorneys told him to play along with the ruse this week by acting like he was busy, then Trump didn’t get the memo, or he didn’t know how to read the memo. Trump spent Saturday tweeting a video of himself poorly superimposed into the movie Independence Day, and tweeting a disturbing image of his new White House Press Secretary in some kind of Supergirl cosplay costume.

Again, this is at a time when Donald Trump’s attorneys are trying to convince the Supreme Court that he’s too busy with the duties of the office to comply with a lawful subpoena. John Roberts will cast the deciding vote using the same methodology he always uses: whatever he thinks is going to make him a power broker, as opposed to what the Constitution says.

Roberts saved Obamacare because he wanted to create an environment where the left and right cater their cases to him, because he craves power. We’ll see what side he comes down on this time. But if Roberts is looking for an excuse to vote against Donald Trump, these idiotic tweets are in fact a solid legal argument that Trump isn’t too busy with his duties to answer the subpoena.

May 13

U.S. Crime, Courts

New York Times, Judge Hesitates to Accept Justice Dept. Move to Drop Flynn Charge, Sharon LaFraniere, May 13, 2020 (print ed.). A judge opened the door to legal challenges over the motion to end the case against Michael Flynn, right, President Trump’s former national security adviser. Law Michael Flynn Harvard 2014enforcement officials’ abrupt decision to end the case drew accusations from former colleagues that they had undermined the rule of law.

A federal judge overseeing the criminal case of President Trump’s former national security adviser Michael T. Flynn opened the door late Tuesday for legal experts and other outside parties to oppose the Justice Department’s motion to drop the case, suggesting he has at least some skepticism about the government’s argument that Mr. Flynn should never have been charged.

emmet sullivan 2012In a brief order, Judge Emmet G. Sullivan, left, of the United States District Court for the District of Columbia said he would set a schedule for outside parties to present arguments about the government’s request to dismiss the case. He did not directly address the Justice Department’s motion to drop the charge, but legal experts said he appeared open to considering not only the department’s arguments but also those who have challenged its move as politically motivated.

The judge’s order is the latest twist in a high-profile criminal case that has provoked widespread criticism of Attorney General William P. Barr and has renewed questions about political influence over the Justice Department. In an extraordinary move last week, federal prosecutors asked Judge Sullivan to throw out their case against Mr. Flynn for lying to F.B.I. agents, two and a half years after he pleaded guilty to a felony charge of making false statements to federal authorities.

None of the line prosecutors who worked on the case signed the motion, and one withdrew from the case. Mr. Trump has repeatedly called for Mr. Flynn’s exoneration, saying he was the victim of biased and vindictive F.B.I. agents.

djt as chosen one

ny times logoNew York Times, Opinion: Trump Is Staking Out His Own Universe of ‘Alternative Facts,’ Thomas B. Edsall, May 13, 2020. In less than a year, from May 2019 to March 2020, the share of weekly church-attending white Protestants convinced that Donald Trump was anointed by God to be president grew from 29.6 percent to 49.5 percent.

This finding — based on direct responses to the question: “How much do you agree or disagree with the following statement? Donald Trump was anointed by God to become president of the United States” — comes from surveys conducted by Paul A. Djupe and Ryan Burge, political scientists at Dennison and Eastern Illinois Universities. Their study illuminates the depth of quasi-religious devotion to Trump among key segments of the population.

djt smiling fileCapitalizing on that devotion is integral to Trump’s re-election strategy and has led to the creation of an all-enveloping digital campaign website, Army for Trump, as well as the Trump-Pence Keep America Great campaign app.

The Trump campaign’s digital sites serve a dual purpose. His supporters are able to enter a self-contained, self-reinforcing arena where Trump reigns supreme, and the campaign gets detailed marketing information about those who go through the elaborate sign-up process — information subsequently used for voter mobilization, fund-raising and volunteer recruitment.

According to Stefan Smith, a Democratic tech strategist, you should think of the Trump campaign website as a casino. Writing in the Daily Beast, Smith argues that the Trump campaign’s website is designed on the Vegas principle, “purposefully built to keep gamblers inside and at the table.”

Trump’s digital infrastructure, Smith wrote, is performing a similar function — it’s trapping people inside an ecosystem of dangerous misinformation, conspiracy theories, and grievance politics. And it’s doing so while making the experience as fun and exciting as possible.

djt maga hatIt is clear that millions of voters willingly enter this arena.

The coronavirus lockdown has turned the internet into a central battleground of the 2020 presidential contest, even more indispensable than it would be under normal circumstances. Trump operatives, guided by his campaign manager, Brad Parscale, are trying to make the most of the situation.

Parscale, who is not given to understatement any more than his boss, tweeted on May 7:

For nearly three years we have been building a juggernaut campaign (Death Star). It is firing on all cylinders. Data, Digital, TV, Political, Surrogates, Coalitions, etc. In a few days we start pressing FIRE for the first time.

“The new Trump campaign app uses gamification to drive voter outreach and valuable data collection,” CNN reported on April 23. “Share the campaign app with a friend, win 100 points. Earn 5,000 points and you can redeem a campaign store discount. Earn 100,000 points, and you can get a picture with President Donald Trump.”

donald trump money palmer report Custom

ny times logoNew York Times, Editorial: Will the Supreme Court Put the President Above the Law? Editorial Board, May 13, 2020 (print ed.). In a bid to keep his tax and financial records secret, the president’s lawyers tell the justices that he is beyond the reach of Congress and prosecutors.

On Tuesday, lawyers for President Trump appeared before the Supreme Court (hearing arguments again by telephone conference) to assert the claim that the nation’s chief executive is unaccountable to Congress or law enforcement authorities — that he is, in short, above the law.

irs logoThe lawyers were trying to block three congressional committees and the Manhattan district attorney from getting access to years of Mr. Trump’s tax returns and other financial records, as well as those of his family members and companies.

The House committees said they subpoenaed those records to help them address concerns over Mr. Trump’s possible conflicts of interest and to consider legislation relating to government ethics, banking and foreign interference in elections. The Manhattan district attorney, Cyrus R. Vance Jr., issued his own subpoena as part of what appears to be an investigation into possible campaign-finance violations by Mr. Trump and his aides both before and after he became president.

It’s useful to remember that these cases might not have been necessary if Mr. Trump hadn’t broken one of his first promises to the American people four years ago.

supreme court CustomBack in 2016, candidate Trump said he would be happy to share his tax returns with the public, as every major candidate for president had done without hesitation for four decades. The only problem, Mr. Trump claimed, was that he was under audit — remember the audit? — and so he couldn’t share his returns at the moment. But soon, he promised.

Mr. Trump has been president for more than three years. He is campaigning for another term, and yet Americans are still in the dark when it comes to his vast web of corporate entities and how their finances and operations may influence his decisions as a candidate and president.

This isn’t an idle concern. Mr. Trump’s tax maneuvers have for decades skirted the edge of legality. In the end, the records may not show evidence of criminal misconduct. But a ruling by the Supreme Court that in essence gives presidents immunity from investigation and prosecution would be a grievous wound to the rule of law.

Mr. Trump lost both cases involving the House subpoenas in the lower federal courts, and no surprise: Congress has broad authority to issue subpoenas for all kinds of information. The president’s lawyers argued on Tuesday that the Democratic-led House is on a fishing expedition, acting like prosecutors and trolling for evidence that might hurt Mr. Trump politically.

washington post logoWashington Post, The Post among five news organizations suing Small Business Administration for access to loan data, Aaron Gregg, May 13, 2020 (print ed.). The Washington Post and four other news organizations are suing the U.S. Small Business Administration for access to government records showing who received more than $700 billion in taxpayer-backed small-business loans.

sba logo new Custom CustomA spokeswoman for The Post said the lawsuit, filed Tuesday in federal court in Washington, is meant to ensure the public has access to information about how public funds are spent and to enforce federal freedom-of-information law. The Post is joined as a plaintiff in the lawsuit by the New York Times, Wall Street Journal parent company Dow Jones, Bloomberg LP and the investigative news organization ProPublica.

“The Small Business Administration has disbursed hundreds of billions of dollars through [the Paycheck Protection Program] and the Economic Injury Disaster Loan program during the COVID-19 crisis, but it has refused to disclose who is receiving the funds and in what amounts,” Post Vice President for Communications Kris Coratti Kelly said in a statement. “Our lawsuit seeks to enforce federal law and enable the public to see how their tax dollars are being spent on these massive loan programs.”

May 12

U.S. Law & Courts

Michael Flynn Scandal

washington post logoWashington Post, Supreme Court debate over Trump’s financial records points to mixed outcome, Robert Barnes, Ann E. Marimow, David A. Fahrenthold, Jonathan O'Connell and Felicia Sonmez​, May 12, 2020. Several justices suggested there might be more work for lower courts to do, which could delay any turnover of the documents being sought by congressional Democrats and Manhattan’s district attorney until after November’s election.

The highly anticipated Supreme Court arguments over President Trump’s efforts to block disclosure of his income tax returns and private financial records suggested Tuesday the possibility of a mixed outcome.

Moreover, several justices suggested there might be more work for lower courts to do, which could delay any turnover of the documents being sought by congressional Democrats and Manhattan’s district attorney until after November’s election.

The court’s conservative majority seemed far more critical of lawmakers’ demands, questioning whether approving the subpoenas issued by three congressional committees would open the door for a Congress ruled by one political party to make potentially harassing requests of a president from a different party.

What Congress proposes as a limiting principle — that the request must be tied to potential legislation — is really “no protection at all, Justice Samuel A. Alito Jr. said.

Chief Justice John G. Roberts Jr. struck a similar chord.

“Your test is not really much of a test. It’s not really a limit,” Roberts told Douglas N. Letter, general counsel to the House of Representatives, who said the key was that the request was tied to potential legislation.

Letter had trouble coming up with an example of a legislative proposal beyond Congress’s reach, which one of Trump’s private lawyers pointed out.

“My friend from the other side struggled with every hypothetical that he was given about his ability to set some sort of limiting principle or some category of information or documents about the president that would not be obtainable under his theory,” Boston lawyer Patrick Strawbridge said. “And I think that’s very telling because there are no limits to their theories.”

Vox, Opinion: The US House’s Supreme Court defense of its Trump investigation was a disaster, Ian Millhiser, May 12, 2020. This should be a slam-dunk case, but the House’s lawyer seemed evasive and unprepared.

Trump v. Mazars and Trump v. Deutsche Bank should be very easy cases. Both involve congressional subpoenas seeking, among other things, many of President Trump’s financial documents. The subpoenas target banks and an accounting firm that possess many of Trump’s documents; Trump sued them to prevent them from complying with the subpoena.

The Supreme Court has said repeatedly, over the course of many decades, that courts owe tremendous deference to congressional investigators. The Court held in Quinn v. United States (1955) that congressional power to conduct investigations is “co-extensive with the power to legislate.” Legislative subpoenas are permissible, the Court later explained, whenever that subpoena is “intended to gather information about a subject on which legislation may be had.”

And yet, at Tuesday’s oral arguments on both cases, a majority of the Court seemed concerned that the House has too much power to investigate the president. The Supreme Court appears likely to create a special rule for Trump — or, at least, for sitting presidents — that it wouldn’t apply to any other person.

douglas letter cspan CustomPart of the story here is that Douglas Letter, the lawyer for the US House, delivered a disastrous performance at Tuesday’s oral argument. Not long after Letter (shown in a file photo) began his argument, Chief Justice John Roberts expressed disagreement with the Court’s longstanding rule giving Congress broad power to conduct investigations, and asked Letter if he could suggest any limits on congressional investigatory power. Letter had no good answer to that question, and he stumbled over various versions of it again and again as the argument wore on.

For someone who cares about presidential accountability, or about precedent, or about the basic rule that no one should be above the law, it was a torturous spectacle. It’s clear that a majority of the Supreme Court believes that decades of prior decisions were wrongly decided, at least when President Trump is involved. And Letter did nothing to allay their concerns.

The one silver lining for anyone troubled by the argument in Mazars and Deutsche Bank, is that the Court appeared more measured in a third case that was also argued on Tuesday, Trump v. Vance. Vance involves a New York grand jury’s investigation into possible criminal activity by the Trump Organization, and the justices appeared more sympathetic to the Manhattan district attorney’s arguments that this investigation should not be shut down than they were to Letter’s arguments in Mazars and Deutsche Bank.

But even if Trump does not prevail in Vance, it’s not clear that such a decision will matter very much in the short term. As several justices emphasized, documents obtained in a grand jury investigation are typically confidential unless they are introduced as evidence in a criminal proceeding. So, if Trump or the Trump Organization is engaged in criminal activity, it is unlikely that the public will see the evidence of that activity any time soon.

Existing law is very unfavorable to Trump

It’s tough to exaggerate just how thoroughly current Supreme Court precedents cut against Trump. The Court has repeatedly emphasized that Congress must have a broad power to conduct investigations, because it is not possible for Congress to make informed law-making decisions without such investigations.

As the Supreme Court explained in Eastland v. United States Servicemen’s Fund (1975), “the power to investigate and to do so through compulsory process ... is inherent in the power to make laws.” Without such a power, “a legislative body cannot legislate wisely or effectively in the absence of information respecting the conditions which the legislation is intended to affect or change.”

Eastland is one of many Supreme Court decisions emphasizing that Congress may conduct nearly any investigation, so long as that investigation is “intended to gather information about a subject on which legislation may be had.”

Courts, moreover, are forbidden to dig into the legislature’s reasons for conducting a particular investigation. “So long as Congress acts in pursuance of its constitutional power,” the Court held in Barenblatt v. United States (1959), “the Judiciary lacks authority to intervene on the basis of the motives which spurred the exercise of that power.”

So that’s what the law says. And under that law, the House wins both Mazars and Deutsche Bank. The first case involves a House Oversight Committee investigation targeting the president’s accounting firm, Mazars USA. It seeks information on whether existing presidential financial disclosure laws are sufficiently robust, or whether they need to be stricter.

deutsche bank logoSimilarly, the Deutsche Bank case involves two parallel House investigations targeting banks that possess some of Trump’s financial records. Among other things, those investigations seek information on whether there are “any links and/or coordination between the Russian government, or related foreign actors, and individuals associated with Donald Trump’s campaign, transition, administration, or business interests, in furtherance of the Russian government’s interests.” These investigations could inform legislation seeking to reduce foreign money laundering and to reduce foreign interference in US elections.

The Court appears to believe that existing law should not apply to the president

Not long after Letter began his argument, Chief Justice Roberts revealed just how sympathetic he is to Trump’s position. Letter’s brief, Roberts noted, states that a congressional investigation must “concern a subject on which legislation can be had.” According to Roberts, this “test is really not much of a test” because it doesn’t impose significant limits on congressional investigations of the president.

Roberts isn’t wrong that the test laid out in Letter’s brief is very permissive of congressional investigations. But it’s not like Letter just made that test up. The idea that Congress may conduct any investigation that concerns “a subject on which legislation can be had” was endorsed by many prior Supreme Court decisions over the course of many decades.

Roberts’s disdain for this longstanding standard was echoed by several of his colleagues. Justice Neil Gorsuch dismissed it as “limitless.” Justice Brett Kavanaugh worried that it would permit congress to declare “open season” on presidents. And Letter was unable to offer a new limit on congressional investigations that would satisfy these justices.

Meanwhile, Justice Samuel Alito repeatedly accused the House of issuing these subpoenas to harass the president — a fact that is irrelevant under Barenblatt’s holding that “the Judiciary lacks authority to intervene on the basis of the motives which spurred the exercise of that power.”

Even Justice Stephen Breyer, a Clinton appointee, appeared to lose confidence in Letter’s arguments. Shortly before those torturous arguments came to an end, Breyer said that he’s concerned that the House is seeking “a lot of information and some of it is pretty vague,” and that the task of sorting through these requests and figuring out what information is being turned over could prove too much of a distraction.

It would be hard to sugarcoat this: It was a disaster for Letter and the House. Letter began his argument with a wealth of precedents that clearly support his client’s position, and he appeared completely unprepared for a Court that just does not believe that existing law should apply to President Trump.

With great power comes great immunity

A majority of the justices appeared very sympathetic to an argument, pushed by Trump’s Justice Department, that the president is special and should enjoy special immunity. “The President occupies a unique position in the constitutional scheme,” Trump’s solicitor general argued in his brief, and thus the president must enjoy “immunity from any process that would risk impairing the independence of his office or interfering with the performance of its functions.”

Such immunity is a precious thing indeed, as the Court has historically allowed Congress to conduct investigations that truly did appear to be motivated entirely by political animus.

Consider the facts of Eastland. The “Eastland” in that case was James Eastland, a Mississippi senator and a staunch segregationist whose disdain for civil rights was matched by his passionate support for the Vietnam War. In a 1972 Senate hearing, Eastland spoke of “the almost certain probability that a Communist victory” in Vietnam “would be followed by a bloodletting that would rival the worst bloodlettings that have taken place in Communist countries to date.”

As chair of the Senate Subcommittee on Internal Security, Eastland subpoenaed financial records from anti-war groups that organized opposition to the Vietnam War among servicemembers, and that published newspapers expressing an anti-war viewpoint. The almost certain purpose of these subpoenas was to reveal the group’s donors, and intimidate those donors from making future donations. As one witness testified, Eastland’s subpoenas resulted in “approximately a 50 percent curtailment in money” distributed to the targeted organization’s anti-war activities.

And yet, the Supreme Court upheld this subpoena in Eastland, and it warned future judges against going “beyond the narrow confines of determining that a committee’s inquiry may fairly be deemed within its province.” So long as a subpoena “may fairly be deemed” to support a legislative investigation, the courts may not second-guess that subpoena.

Perhaps Eastland was wrongly decided. Perhaps men like James Eastland should not have this power to harass political enemies into oblivion. But that was emphatically not the posture that the Supreme Court appeared to adopt in the Mazars and Deutsche Bank arguments.

Rather, the Court’s primary concern seemed to be that the most powerful man in the world — the president of the United States — must be given extraordinary immunity from an investigation that could potentially reveal corruption or worse.

washington post logoWashington Post, Opinion: The Founders checked and balanced the president’s finances, Jed Shugerman, May 12, 2020. (Jed Shugerman is a professor at Fordham Law School and a co-author of a historians’ amicus brief in the emoluments cases against President Trump.)

In a trio of cases being argued before the Supreme Court on Tuesday, President Trump claims he is immune from subpoenas by Congress and state prosecutors for his financial records. Constitutional history is not on his side. The Founders embraced checks and balances, and they constructed a legal system to limit presidential power, especially on issues relating to presidential finances.

In making their case for sweeping presidential immunity from oversight, Trump’s private lawyers and the Justice Department rely on theories of the powerful “unitary executive,” which they argue is established by the Constitution. But the text of the Constitution, the debates of the framers and the proceedings of the first Congress undermine their position.

The essence of Trump’s argument that his private financial records should be exempt from disclosure is that, given the unique status of the office, the Constitution gives the president implied and exclusive powers. Those powers supposedly shield the president from congressional oversight and criminal process by federal or state officials. Here’s the problem: None of these assertions has a clear basis in the text of the Constitution itself.

  • Washington Post, Tesla’s Elon Musk reopens factory, defying county and daring officials to arrest him, Faiz Siddiqui, ​May 12, 2020.

ny times logoNew York Times, Live Analysis and Audio of the Supreme Court Hearing Trump Tax Case, Staff reports, May 12, 2020. Tuesday’s arguments are being heard by telephone because of the coronavirus pandemic, and the public can listen in.

Michael Flynn Scandal

djt william barr doj photo march 2019

washington post logoWashington Post, More than 1,900 former Justice Dept. employees again call for Barr to resign, Matt Zapotosky, May 12, 2020 (print ed.). In an open letter, the group wrote Attorney General William Barr, shown above at right with Donald Trump, had “once again assaulted the rule of law” in moving to drop the case against Michael Flynn.

More than 1,900 former Justice Department employees on Monday repeated a call for William P. Barr to step down as attorney general, asserting in an open letter he had “once again assaulted the rule of law” by moving to drop the case against President Trump’s former national security adviser Michael T. Flynn,shown below.

michael flynn arms foldedThe letter, organized by the nonprofit group Protect Democracy, was signed by Justice Department staffers serving in Republican and Democratic administrations dating back to President Dwight D. Eisenhower. The vast majority were former career staffers — rather than political appointees — who worked as federal prosecutors or supervisors at U.S. Attorney’s Offices across the country or the Justice Department in downtown Washington.

Protect Democracy, which counts Justice Department alumni among its members, has organized several similar letters critical of Barr’s decisions or other Trump administration actions.

Most recently, in February, the group collected more than 2,600 signatures on a letter calling for Barr to resign after he intervened to reduce career prosecutors’ sentencing recommendation for Roger Stone, a longtime friend of Trump. Jonathan Kravis, one of the prosecutors involved in Stone’s case who resigned after Barr’s action, wrote in a Washington Post column published Monday that in both matters, “the department undercut the work of career employees to protect an ally of the president, an abdication of the commitment to equal justice under the law.”

[Trump would have been charged with obstruction were he not president, hundreds of former federal prosecutors assert]

The new letter asserted that its signers “continue to believe that it would be best for the integrity of the Justice Department and for our democracy for Michael Flynn Harvard 2014Attorney General Barr to step aside.” The group also called on Congress to formally censure Barr and asked a federal judge in Washington to hold a hearing to scrutinize whether to dismiss the case against Flynn, right.

“Our democracy depends on a Department of Justice that acts as an independent arbiter of equal justice, not as an arm of the president’s political apparatus,” the group wrote.

Among the signers were several high-profile Republican appointees, including Donald Ayer, a deputy attorney general under President George H.W. Bush; Charles Fried, solicitor general under President Ronald Reagan; and Stuart Gerson, who led the Justice Department’s civil division under Bush and served as acting attorney general briefly in the Clinton administration. Justin Vail, a policy advocate with Protect Democracy, said the group was “inundated with calls from former Department of Justice attorneys who wanted to speak out” after the action in the Flynn case.

A spokeswoman for Barr declined to comment.

ny times logoNew York Times, Live Analysis and Audio of the Supreme Court Hearing Trump Tax Case, Staff reports, May 12, 2020. Tuesday’s arguments are being heard by telephone because of the coronavirus pandemic, and the public can listen in.

May 9

michael flynn djt

washington post logoWashington Post, Editorial: The judge should look skeptically at Barr’s latest effort to rescue another Trump crony, Editorial Board, May 9, 2020 (print william barr new oed.). Now, in a stunning blow to impartial justice, Attorney General William P. Barr, right, is proposing to clear Mr. Flynn, who served as national security adviser at the beginning of President Trump’s term.

Justice Department log circularIt is the latest and perhaps most disturbing action Mr. Barr has taken to overrule the professionals of the Justice Department in a manner pleasing to his boss.

U.S. Attorney Jeff Jensen said he made the call, then consulted Mr. Barr, who agreed. Mr. Jensen should not have been in a position to make that call. He had that position because Mr. Barr tapped him to “assist” other Justice Department prosecutors on a case of particular interest to Mr. Trump. Yet those other prosecutors needed no help determining Mr. Flynn’s guilt.

washington post logoWashington Post, A constant battle of you against the leadership of your country’: Justice Dept. rattled as Flynn fallout reaches FBI, Devlin Barrett, Matt Zapotosky and Josh Dawsey, May 9, 2020. President Trump cast fresh doubt Friday on the future of his FBI director as federal law enforcement officials privately wrestled with fallout from the Justice Department’s move to throw out the guilty plea of former national security adviser Michael Flynn.

The president’s comments in a phone interview with Fox News highlight the ongoing distrust between the White House and some law enforcement officials in the aftermath of a nearly two-year investigation by special counsel Robert S. Mueller III into Russia’s interference in the 2016 U.S. FBI logopresidential campaign.

“It’s disappointing,” Trump said when asked about Christopher A. Wray’s role in ongoing reviews of the FBI’s handling of the Russia investigation. “Let’s see what happens with him. Look, the jury’s still out.”

Trump faulted the FBI director as “skirting” the debate surrounding the Russia investigation, although the agency and the Justice Department have insisted that the FBI has cooperated fully with those reviewing the case. The president said more developments could come in the next two weeks but declined to elaborate.

Justice Department log circularWhile the president continued to criticize the FBI’s conduct, multiple federal law enforcement officials interviewed Friday expressed varying degrees of anger, resignation and alarm over the decision by Attorney General William P. Barr to abandon the prosecution of Flynn for lying to the FBI about his conversations with Russia’s ambassador to the United States before Trump took office.

“The attorney general is supposed to be above reproach and apolitical in terms of how the department operates and how he or she as an individual operates, and he’s just completely lost that,” said one veteran Justice Department lawyer who, like others, spoke on the condition of anonymity for fear of retaliation. “He’s Trump’s attorney. He’s not the country’s attorney.”

A day after the Flynn reversal, more than a half dozen Justice Department employees expressed similar displeasure with the move, saying that they did not agree with Barr’s legal rationale and that they worried about what it might portend for the agency. A smaller number of law enforcement officials contacted Friday said they were basically pleased with the outcome and were critical of decisions made by James B. Comey, who launched the Flynn investigation while he was FBI director.

“Wray is not going to be fired, because there is a sense of realism, because we are in a pandemic, and it’s in an election year,” predicted one official, who added that Trump has little love for Wray but is not preparing to fire him.

ny times logorichard painterNew York Times, Opinion: Trump’s Bid to Stand Above the Law, Claire O. Finkelstein and Richard W. Painter, right, May 9, 2020. Next week, the Supreme Court will hear lawyers argue the president’s claim that he has absolute immunity while in office.

On Tuesday, the U.S. Supreme Court is scheduled to hear one of the most consequential cases ever considered on executive privilege. Trump v. Vance concerns a subpoena issued by the Manhattan district attorney to President Trump’s accountants demanding the release of tax returns and other financial documents to a grand jury.

supreme court buildingWhat is at stake is no less than the accountability of a president to the rule of law.

Mr. Trump claims that a president has “temporary absolute immunity,” meaning he cannot be criminally investigated while in office. Indeed, in oral argument before the U.S. Court of Appeals for the Second Circuit in New York, his lawyers said that if the president were to shoot someone on Fifth Avenue, he could not be investigated or indicted until after he left office.

If the justices endorse this extreme view, they will make it impossible to hold this president, and all future presidents, answerable in courts for their actions.

Mr. Trump claims that a president has “temporary absolute immunity,” meaning he cannot be criminally investigated while in office. Indeed, in oral argument before the U.S. Court of Appeals for the Second Circuit in New York, his lawyers said that if the president were to shoot someone on Fifth Avenue, he could not be investigated or indicted until after he left office.

If the justices endorse this extreme view, they will make it impossible to hold this president, and all future presidents, answerable in courts for their actions.

richard nixon portraitMr. Trump’s legal position contradicts clear Supreme Court precedent. In U.S. v. Nixon, a unanimous Supreme Court ordered President Richard Nixon (shown in an official portrait) to turn over Oval Office tapes subpoenaed by the Watergate special prosecutor, Archibald Cox. In Clinton v. Jones, a unanimous court held that a sitting president can be forced to testify in response to a subpoena in civil litigation. Taken together, these cases make it clear that the president is not immune from investigation, whether criminal or civil, while he is in office.

Mr. Trump’s claims of absolute immunity are even weaker than the assertions by Presidents Nixon and Bill Clinton. The subpoena was issued by a state, rather than a federal prosecutor. The 10th Amendment to the U.S. Constitution allows states a certain degree of autonomy in investigating and prosecuting crimes. Although grand jury proceedings are secret, Mr. Vance is probably also investigating whether the president’s company, the Trump Organization, falsely accounted for hush-money payments made in the run-up to the 2016 election to two women who claim they had affairs with Mr. Trump. To deny New York the right to exercise its “police powers” over serious financial crimes should give the court’s conservative justices pause.

mazars logo croppedIn addition, the subpoena was not issued to Mr. Trump, but to Mazars (logo at left), his accountants. Mr. Trump maintains that the immunity of a sitting president is so strong that it extends to his entire business empire and even to third-party businesses that possess his personal information. By this logic, President Clinton could have blocked a subpoena to Monica Lewinsky’s dry cleaner, had she had one, to prevent it from handing over the infamous blue dress before laundering to the independent counsel investigating him.

Mr. Trump’s legal team asserts that federal law pre-empts state law, arguing that his immunity descends directly from the president’s constitutional authority under Article II of the Constitution. We filed an amicus brief in the case opposing this sweeping assertion of presidential immunity, on the grounds that the language of Article II, the history of its drafting and its subsequent interpretation by federal courts contradict Mr. Trump’s interpretation.

FBI logoMoreover, his claim conflicts with the administration’s position in another recent Supreme Court case over states’ rights, Kansas v. Garcia. The administration’s solicitor general had sided with Kansas against an immigrant’s claim that federal immigration law prevented Kansas from prosecuting him for identity theft.

The same should apply in Trump v. Vance: The Constitution gives the Manhattan district attorney broad latitude to investigate possible financial misconduct of businesses headquartered in New York unless federal law expressly forbids it. No federal law does.

The authorities usually cited for the proposition that a sitting president cannot be indicted are two Justice Department memorandums. Rather than offering a legal analysis based on Article II, the memos are largely pragmatic, advising that it would be unwise to distract a president with legal processes when he needs to focus on the national interest. As such, these memorandums are merely advice to Justice Department prosecutors. They are not binding in any way on state prosecutors.

supreme court headshots 2019

washington post logoWashington Post, George Conway Opinion: No one in this country is above the law. The Supreme Court is about to teach that lesson, George T. george conway postConway III, right, May 9, 2020 (print ed.). Twenty-six years ago, I published my first op-ed. Entitled “‘No Man in This Country … Is Above the Law,’” it addressed news reports that President Bill Clinton planned to claim an immunity from having to respond to Paula Jones’s sexual harassment suit. “In a case involving his private conduct,” I wrote, “a President should be treated like any private citizen. The rule of law requires no more — and no less.”

The piece led to my ghostwriting briefs for Jones, including a Supreme Court brief two years later. The Supreme Court agreed unanimously that Jones could proceed, and, like the op-ed, quoted from the Founders’ debates about the status of the president: “Far from being above the laws, he is amenable to them in his private character as a citizen, and in his public character by impeachment.” Which meant that while a president could be impeached for official misconduct, he “is otherwise subject to the laws” — and therefore could be sued — “for his purely private acts.”

I couldn’t have imagined then that another president would challenge that proposition. Then again, I couldn’t have imagined President Donald Trump.
But here we are. On Tuesday, the Supreme Court will hear telephonic arguments in three cases addressing whether Trump can keep his tax and financial information from being disclosed, whether from Congress or criminal prosecutors. In Trump v. Vance, which involves a New York state grand jury investigation, Trump’s lawyers argue that, even when it comes to purely private conduct, the presidency insulates him from the legal process.

Justice Department log circularThe case arises from a criminal investigation into the Trump Organization, and it seems there’s plenty worth examining: whether, as suggested by extensive reporting in this newspaper and other outlets, Trump’s businesses may have dodged taxes. And whether Trump’s hush-money payments, made through his lawyer Michael Cohen to porn star Stormy Daniels and former Playboy model Karen McDougal, violated state law. (Cohen pleaded guilty to federal crimes arising from those payments, which the U.S. attorney’s office in Manhattan said were made “at the direction of Individual-1” — Trump.)

The state grand jury subpoenaed the Trump Organization and Trump’s accounting firm, Mazars, seeking tax returns and financial rmazars logo croppedecords. Trump sued to block the subpoena to Mazars — on the ground that he’s president. The lower federal courts rejected his pleas, and now he’s in the Supreme Court. Where he will lose — or should.

To say Trump’s argument is frivolous demeans frivolity. Clinton v. Jones dictates the result: The subpoenaed documents have nothing to do with Trump’s presidential duties — zip. That alone does it.

But Trump’s case is even weaker than Clinton’s. At least Clinton was being sued personally. He ultimately had to give evidence himself, which he did (infamously) at a deposition. But because the suit had nothing to do with presidential duties, the Supreme Court said it could proceed.

Here, Trump hasn’t been charged with or sued for anything. He’s not being required to do anything. The subpoenas have been directed at his company and his accountants. They don’t require his time or attention.

Trump’s position stupefies. In essence: Authorities can’t investigate anything touching his personal affairs — including, ahem, payments to pornographic actresses — because he’s president. Think of the logic: Not only does the president enjoy a personal constitutional immunity — his businesses do, too.

It doesn’t matter that Trump challenges a criminal inquiry, while Jones involved a civil suit. Whether a sitting president can be indicted remains unsettled, but Trump hasn’t been charged. In fact, presidents have given evidence in criminal matters many times — including ones touching them personally.

Chief Justice John Marshall ordered President Thomas Jefferson to produce documents in Aaron Burr’s treason case. A unanimous Supreme Court ordered President Richard Nixon to turn over the Watergate tapes, and rejected a claim of presidential privilege — in a case in which Nixon was named an unindicted co-conspirator. Clinton provided grand jury and criminal trial testimony in the Whitewater and Lewinsky investigations — matters in which he was potentially a target.

Trump complains nonetheless that letting 50 states conduct investigations involving presidents would endanger the presidency, as well as federal supremacy. A short answer is one the court gave in Jones, where Clinton raised the specter of countless private plaintiffs bringing meritless suits: Courts can address vexatious litigation case by case, and if that doesn’t suffice, Congress can legislate a fix.

A more fundamental answer, though, may be found in an amicus curiae brief in the Vance case, a brief submitted by the Protect Democracy Project and joined by me and 36 other conservatives: “The Constitution is concerned with the supremacy of federal law, not the supremacy of federal officials.”

Likewise, the Constitution is concerned with protecting the presidency, not the person who happens to be the president. That’s because no one in this country is above the law. The Supreme Court is now called upon to teach that lesson once again — even if Trump will likely never learn it.

May 7

bridget kelly bill baroni

washington post logoWashington Post, High court overturns ‘Bridgegate’ convictions that had ensnared Christie allies, Robert Barnes, May 7, 2020. Supreme Court justices said unanimously that the federal government went too far in prosecuting allies of former New Jersey governor Chris Christie for retaliating against political rivals.

A unanimous Supreme Court on Thursday overturned the convictions of two of former New Jersey governor Chris Christie’s political allies in the “Bridgegate” case, saying the federal government went too far in prosecuting them for retaliating against political rivals.

chris christie press 200The former allies, Bridget Kelly and William E. Baroni Jr., took part in a 2013 plot to back up traffic on the George Washington Bridge, the nation’s busiest, as retaliation against the Democratic mayor of Fort Lee, N.J. for not endorsing Republican Christie’s reelection bid.

The plan worked but revelation of it backfired. It was costly to Christie’s subsequent presidential campaign, and created lasting animosities.

President Trump tweeted that the decision was a “complete and total exoneration” of Christie, right, and his former associates on “the Obama DOJ Scam referred to as “Bridgegate.”

In fact, Justice Elena Kagan, writing for the court, was unsparing in her criticism of the scheme.

But she said the goal of Kelly, Christie’s former deputy chief of staff, and Baroni, formerly deputy excutive director of the Port Authority of New York and New Jersey, was not to secure money or property, which is what the federal statute requires.

May 4

supreme court headshots 2019

washington post logoWashington Post, The public will get a rare glimpse into the inner workings of the Supreme Court today as justices work remotely, Robert Barnes, May 4, 2020. The Supreme Court is scheduled to hear oral arguments by teleconference, taking a historic step into the technological present. The court doesn’t allow cameras in its courtroom and has never allowed simultaneous audio broadcasts.

The Supreme Court is scheduled to hear oral arguments by teleconference Monday, taking a historic but modest step into the technological present.

supreme court CustomForced from gathering in their grand courtroom because of the threats presented by the coronavirus, the justices will remotely hear 10 cases over the next two weeks. They are drawn from cases postponed in March and April. The justices have not sat as a group since March 9, doing their work and issuing opinions since then remotely.

The justices will remain scattered, and the advocates will present their cases from basements and conference rooms in Washington and around the country.

And with a live feed going to the media, anyone around the world will be able to listen in. The Supreme Court doesn’t allow cameras in its courtroom, has never allowed simultaneous audio broadcasts and only rarely even allows tapes of its hearings to be released the same day.

While various media groups intend to air the arguments live, a transcript and tape of the proceedings also will be posted on the court’s website supremecourt.gov

The court will start slowly, with only one argument Monday, and additional sessions on Tuesday and Wednesday. Next week, it will consider President Trump’s battle to keep his financial records from being turned over to congressional committees and a New York prosecutor.

Those tuning in Monday may wonder what the fuss is all about. While the arguments will feature two veteran advocates, the case involves a trademark dispute between the federal bureaucracy and a website that assists in booking hotel rooms, Booking.com

The question is whether a generic word such as booking can be recognized as a mark just by adding “.com” to it. Lower courts ruled for the company. Washington lawyer Lisa S. Blatt will be arguing on behalf of Booking.com from her dining room in northwest D.C. Justice Department lawyer Erica Ross plans to don the traditional morning coat worn by government lawyers who appear before the high court, and make her case to a speakerphone in the solicitor general’s conference room.

May 3 daniel kelly jill karofsky Custom

Incumbent Wisconsin Supreme Court Justice Daniel Kelly and Dane County (whose county seat is the state capital of Madison) Judge Jill Karofsky, above, competed in an ostensibly non-partisan but intensely political race on April 7 for a 10-year-term on the court. The two were in a run-off from a February  primary in which Kelly won 50 % of the vote and Karofsky 37%. In a major update, Karofsky prevailed in the run-off by a nearly 11 point margin despite legislative and court decisions seemingly designed to suppress voting in liberal districts.

washington post logoWashington Post, Thousands of Wis. ballots that arrived after Election Day were counted, thanks to court, Amy Gardner, Dan Simmons and Robert Barnes,  Under a Supreme Court order, election officials tallied Wisconsin absentee ballots postmarked by April 7, rather than just those received by then, underscoring the power of narrow court decisions to significantly shape which votes are counted.

supreme court CustomEarly last month, voters in Wisconsin navigated a dizzying number of rule changes governing the state’s spring elections as officials tussled over the risks of the novel coronavirus, prompting a backlog of absentee ballot requests and fears that many would not be able to participate.

But in the end, tens of thousands of mail ballots that arrived after the April 7 presidential primaries and spring elections were counted by local officials, a review by The Washington Post has found — the unexpected result of last-minute intervention by the U.S. Supreme Court.

In Milwaukee and Madison alone, the state’s two largest cities, more than 10 percent of all votes counted, nearly 21,000 ballots, arrived by mail after April 7, according to data provided by local election officials.

wisconsin map with largest cities CustomThe surprising outcome after warnings that many Wisconsinites would be disenfranchised amid the pandemic was the result of a largely unexamined aspect of the court’s decision that temporarily changed which ballots were counted. Because of the order, election officials for the first time tallied absentee ballots postmarked by Election Day, rather than just those received by then — underscoring the power of narrow court decisions to significantly shape which votes are counted.

What happened in Wisconsin has potentially far-reaching implications as the two parties square off in courtrooms across the country, hoping to notch legal victories that will shape the electorate in their favor before November.

Democrats think they have secured a game-changing precedent from the Supreme Court’s 5-to-4 order. In the past week alone, lawsuits bankrolled by Democratic committees have been filed in four states seeking similar postmark rules and citing the Wisconsin opinion to bolster their argument. More cases are expected in the coming week.

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Republicans, meanwhile, say they are prepared to spend millions of dollars to oppose these efforts, arguing that extending ballot deadlines creates an opportunity for fraud. Some have also been open in their view that higher turnout could harm them politically. On March 30, President Trump said that if Democratic efforts to expand mail balloting succeeded, “you’d never have a Republican elected in this country again.”

April

April 27 supreme court headshots 2019

washington post logoWashington Post, Supreme Court dismisses anticipated New York gun rights case because the law in question has been rescinded, Robert Barnes, April 27, 2020. Three conservative justices said the court was “manipulated” to keep from clarifying the Second Amendment issue.

The Supreme Court on Monday dismissed a major gun rights case from New York because the law in question has been rescinded, disappointing supreme court CustomSecond Amendment activists and several conservative justices, who said the court had been manipulated.

The decision dismissing the case was unsigned, but three justices filed a dissent.

“By incorrectly dismissing this case as moot, the court permits our docket to be manipulated in a way that should not be countenanced,” wrote Justice Samuel A. Alito Jr., joined by Justices Clarence Thomas and Neil M. Gorsuch.

The controversy involves now-rescinded restrictions unique to New York City about whether citizens who have a license to keep a gun in their homes may transport them to firing ranges outside the city or to a second home in the state.

washington post logoWashington Post, Supreme Court rules for insurance companies in Obamacare lawsuit seeking billions, Robert Barnes, April 27, 2020. The government must make good on its promise in the Affordable Care Act to subsidize insurance companies for offering low-premium policies to at-risk customers, even though the price tag could be up to $12 billion, the Supreme Court ruled Monday.

Congress has balked at making the payments to insurance companies, but the court decided 8 to 1 that refusing to pay was not an option.

The decision reflects “a principle as old as the nation itself: The government should honor its obligations,” wrote Justice Sonia Sotomayor.

Justice Samuel A. Alito Jr. was the lone dissenter, saying that the court should not provide a “bailout” for the companies who decided to participate in the ACA’s “risk corridor” program, which has since ended.

The case had marked the Supreme Court’s fifth look at President Barack Obama’s signature domestic success. Unlike others — and another one that the court will hear in the fall — it did not challenge the law’s underpinnings.

April 23

ny times logoNew York Times, Opinion: A Precedent Overturned Reveals a Supreme Court in Crisis, Linda Greenhouse (shown at right on the cover of her linda greenhouse cover just a journalistmemoir), April 23, 2020. Separate opinions in a case show nine justices pursuing agendas far removed from the dispute at hand.

The country wasn’t exactly holding its breath for the Supreme Court’s decision this week that the Constitution requires juror unanimity for a felony conviction in state court. The case promised little change. Unanimity has long been understood as constitutionally required in federal court as a matter of the Sixth Amendment right to trial by jury.

The only outlier among the states was Oregon. Louisiana, where the case originated in an appeal brought by a man convicted of murder in 2016 by a 10-to-2 vote, changed its rule two years later to require unanimity going forward. Six Supreme Court justices agreed this week that contrary to the outcome of a 1972 case, there is not one rule for the federal courts and another for the states: Conviction only by a unanimous jury verdict is now the rule for both.

That sounds almost too straightforward to be very interesting. Even people with more than a passing interest in the Supreme Court may well have thought, “Well, then that’s that,” before moving on to other cases, other concerns.

supreme court CustomThat would have been a mistake. This decision, Ramos v. Louisiana, is in fact one of the most fascinating Supreme Court products I’ve seen in a long time, and one of the most revealing. Below the surface of its 6-to-3 outcome lies a maelstrom of clashing agendas having little to do with the question ostensibly at hand and a great deal to do with the court’s future. Peek under the hood and see a Supreme Court in crisis.

Consider that it took nearly seven months from the argument last October for the justices to come up with something they were willing to send out into the world: five separate opinions, a total of 83 pages, to answer the straightforward question presented by Evangelisto Ramos’s petition: “Whether the Fourteenth Amendment fully incorporates the Sixth Amendment guarantee of a unanimous verdict.” (“Incorporates” refers to the ongoing process of applying the guarantees of the Bill of Rights — which by their terms apply only to Congress — to the states.)

Simple as that question appeared to be, this case meant trouble at the court from the start. The decision to grant review in the first place was a disputed one, or so we can infer from the fact that the justices considered Mr. Ramos’s petition at eight of their closed-door conferences, beginning in October 2018, before finally granting it in March of last year. Petitions are usually granted after one or two conferences, so such prolonged consideration indicates some kind of internal struggle as proponents search for the necessary four votes.

That there was a struggle was hardly surprising, because the grant of review marked a sharp and unexplained break with the recent past.

April 20

washington post logoWashington Post, Supreme Court says state juries must be unanimous to convict for serious crimes, Robert Barnes, April 20, 2020. The Supreme Court on Monday ruled 6 to 3 that state court juries must be unanimous to convict a defendant of a serious crime, a decision that scrambled the court’s usual ideological lineups and prompted soul-searching among some justices about when to overturn precedent.

Louisiana and Oregon are the only two states that do not require unanimity for major crimes, and Justice Neil M. Gorsuch said each state’s decision was rooted in discrimination. Although unanimity is not mentioned in the Constitution’s guarantee of an unbiased trial, he wrote, it is clear what is required.

April 13

supreme court Custom

washington post logoWashington Post, Supreme Court for first time to hold arguments via teleconference next month, Robert Barnes, April 13, 2020. The coronavirus pandemic has forced a change at the Supreme Court that justices have long resisted: live audio of the court’s oral arguments, including President Trump’s legal battle to prevent congressional committees and a New York prosecutor from obtaining his financial records.

The court announced Monday that it will hold oral arguments via teleconference for the first time in its history next month, on a set of cases that had been postponed in March and April.

Supreme Court Public Information Officer Kathleen Arberg said audio of the teleconference hearing will be released through a network pool, and thus immediately available on media platforms. She said it is not likely to be posted live on the court’s website due to concerns over the site’s capacity to handle such high volume.

ment means a great deal. It means a great deal to me.”

  daniel kelly jill karofsky Custom

Incumbent Wisconsin Supreme Court Justice Daniel Kelly and Dane County (whose county seat is the state capital of Madison) Judge Jill Karofsky, above, are competing in an ostensibly non-partisan but intensely political race on Tuesday, April 7 for a 10-year-term on the court. The two are in a run-off from a February  primary in which Kelly won 50 % of the vote and Karofsky 37%.

washington post logo Washington Post, Liberal challenger defeats conservative incumbent in Wisconsin Supreme Court race, Amy Gardner and David Weigel, April 13, 2020. A liberal challenger defeated the conservative incumbent for a seat on the Wisconsin Supreme Court, a key race at the heart of Democratic accusations that Republicans risked voters’ health and safety by going forward with last week’s elections amid the coronavirus pandemic.

wisconsin map with largest cities CustomJill Karofsky beat Daniel Kelly, whom then-Gov. Scott Walker (R) appointed to the state’s high court in 2016. Trump endorsed Kelly and on Election Day urged Wisconsin voters “to get out and vote NOW” for the justice.

Gov. Tony Evers (D), state health officials and local election officials had urged the Republican-led state legislature to postpone the election, but lawmakers refused, citing the risk of confusion and widespread vacancies in thousands of municipal seats on the ballot with terms due to expire in April.

Democrats accused Republicans of trying to take advantage of the likely low turnout resulting from fear of infection and closed polling locations.

The election featured snaking lines in Milwaukee and Green Bay, the result of mass cancellations by poll workers and the closure of polling locations. In Milwaukee, election officials opened just five voting locations, instead of the typical 180.

“Tonight, not just Jill Karofsky but democracy prevailed over a politically cynical strategy to weaponize the coronavirus pandemic as a tool of voter suppression,” said Ben Wikler, chairman of the Wisconsin Democratic Party.

Republicans entered the election with a 5-2 majority on the state Supreme Court, meaning that a Democratic victory still leaves liberals in the minority until 2023, the next time a conservative justice will face voters.

But an ongoing legal battle over a voter roll purge raised the stakes of this year’s election, with implications for November. Kelly recused himself, and conservative Justice Brian Hagedorn sided with voting-rights groups to halt the purge. That left the court deadlocked 3-3, and gave Democrats a shot at stopping the purge, one of their top priorities ahead of the 2020 election.

Former vice president Joe Biden also beat Sanders in the Wisconsin Democratic primary. Sanders dropped out of the race the day after the Wisconsin vote and endorsed Biden earlier Monday.

In 2016, Sanders decisively won the Wisconsin primary, carrying seven of the state’s eight congressional districts. He also scored an upset victory in Michigan and landslide win in Minnesota’s caucuses.

April 12

supreme court headshots 2019

washington post logoWashington Post, The high court has been siding with the rich against the poor since Nixon, Adam Cohen, April 12, 2020. (Adam Cohen, a former member of the editorial board of the New York Times, is the author of Supreme Inequality: The Supreme Court's Fifty-Year Battle for a More Unjust America.)

Nearly 50 years ago, Lewis Powell, a big-firm lawyer in Richmond, had a dream: What if American business took over the then-liberal Supreme Court and turned it into a defender of capitalism and large corporations? Powell set out his ideas in the summer of 1971 in a confidential memorandum for the U.S. Chamber of Commerce, with a bombastic title: “Attack on American Free Enterprise System.” Within months, President Richard Nixon richard nixon desk archivesappointed Powell to the court, and he helped bring about the pro-corporate transformation he had called for in his memo.

Powell could hardly have predicted just how much success his vision would have over the next half-century, in almost every area of the law. The Supreme Court would repeatedly rule in favor of corporations and the rich, and against the middle class and the poor — undermining unions, paving the way for lower taxes and generally playing an underappreciated role in reshaping the economy in ways that hurt working people. Democratic presidential candidates and the media generally attribute growing inequality to policies adopted by Congress and presidents, and to larger forces like automation, but the Supreme Court deserves a sizable share of the blame.

By the numbers, the transition in the court’s position on business-related issues has been dramatic. One study, from 2009, found that businesses won 28 percent of their cases before the court led by Chief Justice Earl Warren (over the period 1953 to 1969) but 64 percent under the current court, led by Chief Justice John G. Roberts Jr. Another found that Justice Samuel Alito and Roberts are the No. 1 and No. 2 most pro-business justices, respectively, to serve since 1946.

The court’s past half-century of favoring the rich and powerful coincides almost exactly with the period when the richest Americans have left the rest of the nation behind. The “World Inequality Report 2018,” produced by Thomas Piketty and other economists — the most recent available — identified two chief drivers of economic inequality in the United States: unequal educational opportunity and an increasingly regressive tax system. The modern court has contributed greatly to both.

The court’s role as a force for inequality started a few years before the Powell memo — in 1969, when Nixon became president. Nixon shared the business community’s skepticism toward the Warren court, and he campaigned on a promise to change it. That court had spent the past 15 years promoting civil rights, starting with Brown v. Board of Education, and expanding the rights of poor Americans, with rulings like Harper v. Virginia Board of Elections, a 1966 decision striking down poll taxes. In Nixon’s first three years in office, he appointed four justices, one of the fastest rates of turnover in history. The new members — Warren Burger (the new chief justice), Harry Blackmun, William Rehnquist and Powell — were more sympathetic to big business than their predecessors.

The ways in which the court drove inequality were wide-ranging. In 1976, in Buckley v. Valeo, it held for the first time that money is First Amendment-protected speech and struck down limits on spending in political campaigns. That began the dismantling of campaign finance laws, clearing the way for wealthy Americans, and then corporations, to use unlimited amounts of money to influence elections. In labor law, the court turned against unions — a trend that reached its nadir in 2018 with Janus v. AFSCME, which held that government unions cannot require nonmembers to pay fees for being represented in collective bargaining.

Most important, however, were the court’s decisions concerning education and desegregation. In the early 1970s, a consensus was quickly forming among law professors and lower courts that the Constitution’s equal protection clause required equitable funding across rich and poor school districts in a state. When parents and students from a poor, heavily Mexican American district challenged Texas’s school finance system, a federal district court ordered the state to equalize funding.

April 10

ny times logoNew York Times, Latest Question for Supreme Court: How to Rule on a Crowded Docket During a Pandemic, Adam Liptak, right, April 10, 2020. The adam liptakquestion confronts Chief Justice John G. Roberts Jr. with choices that will invariably be seen as political. The Supreme Court, never the most transparent of institutions, has all but vanished.

It still issues decisions, like the one on Monday that refused to extend absentee voting in Tuesday’s elections in Wisconsin. But the justices have stopped doing the most public part of their job, hearing arguments, and the courthouse is closed to the public. The last 20 arguments of the term, which had been scheduled for March and April, have been postponed indefinitely.

That has left major cases in limbo, notably ones on subpoenas from prosecutors and Congress for President Trump’s financial records, which had been scheduled to be heard on March 31. Those cases were going to be a test of the independence of the court even before the coronavirus crisis complicated matters.

While the president’s free-form coronavirus briefings make him a constant presence in the nation’s consciousness, the court led by Chief Justice John G. Roberts Jr. has in important ways receded from view. Very little is known about how the justices are conducting their work in the midst of the pandemic or how they plan to proceed.

This presents the chief justice with a fresh set of challenges in what has already been a difficult year, and it is only April. He has said that he and his colleagues “don’t work as Democrats or Republicans,” but demonstrating that has required him to engage in a balancing act.

April 9

ny times logolinda greenhouse cover just a journalistNew York Times, The Supreme Court Fails Us, Linda Greenhouse (shown at right on the cover of her memoir, "Just a Journalist"), April 9 2020. The five conservative justices refused to extend the deadline for absentee ballots in Wisconsin in the middle of the pandemic.

The Supreme Court just met its first test of the coronavirus era. It failed, spectacularly. I was hoping not to have to write those sentences. All day Monday, I kept refreshing my computer’s link to the court’s website.

I was anxious to see how the justices would respond to the urgent request from the Republican National Committee and Wisconsin’s Republican-controlled Legislature to stop the state from counting absentee ballots postmarked not by Tuesday’s election but during the following few days.

A federal district judge, noting that Wisconsin’s election apparatus was overwhelmed by the “avalanche of absentee ballots” sought by voters afraid to show up at crowded polling places, had ordered the extra time last Thursday, with the full support of the state’s election officials. Was I the only one left in suspense on Monday, holding out hope that the five Republican-appointed Supreme Court justices would put partisanship aside and let the District Court order stand?

In early evening, the answer landed with a thud. No, they would not.

In more than four decades of studying and writing about the Supreme Court, I’ve seen a lot (and yes, I’m thinking of Bush v. Gore). But I’ve rarely seen a development as disheartening as this one: a squirrelly, intellectually dishonest lecture in the form of an unsigned majority opinion, addressed to the four dissenting justices (Need I name them? Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan), about how “this court has repeatedly emphasized that lower federal courts should ordinarily not alter the election rules on the eve of an election.”

Anyone reading only the Supreme Court’s majority opinion would come away thinking that the order was the act of a rogue judge, cramming an extreme remedy for a nonexistent problem down the throat of a resistant public.

There is barely a hint in the opinion of the turmoil in the country. Did it not occur to these justices to wonder why they were working at home rather than in their chambers? It was left to Justice Ginsburg in her dissenting opinion to point out that “the District Court was reacting to a grave, rapidly developing public health crisis.”

April 8

 

High Courts Disgrace Themselves To Help GOP Rig U.S. Voting During Pandemic

supreme court CustomConservative majorities in the Wisconsin and U.S. Supreme Courts ruled separately on Monday to rig the April 7 elections in Wisconsin with the effect — and doubtless the intention — of helping Republicans win the presidential swing state and retain control of the state legislature by stifling Democratic votes in November.

Under the cover of a global Covid-19 pandemic, the decisions by the high federal and state courts this week forced many Wisconsin voters, especially those in the Democratic stronghold of Milwaukee, to choose between risking their lives and exercising their right to vote.

Although judges knew these cruel high stakes from their briefing materials, few other Americans realize that a key reason for the needless risk-taking in Wisconsin was because an ultra-conservative Wisconsin justice, Dan Kelly (below at left) was on the ballot for a 10-year term.

wisconsin map with largest cities CustomBoth state and national Republicans want Kelly's election-rigging skills to remain on the Wisconsin court so that it can continue its national leadership in using a pretense of legality to justify election thefts far into the future.

Legislative control is especially important during the once-every-10-year census in 2020 because the census results trigger the power for state legislatures to gerrymander congressional and legislative districts for the next decade.

Donald Trump, the impeached president, is desperate to remain in unaccountable power. He has successfully stalled congressional scrutiny mandated by the Constitution and long precedents, in part because friendly Republicans on the U.S. Supreme Court have stayed indefinitely the most significant lower-court rulings about his finances and allegations of his obstruction of justice. The court refuses to hear arguments on these vital cases, claiming the pandemic prevents its work, even while it needlessly forced Wisconsin voters to risk their lives by in-person voting at crowded polling places instead of availing themselves of absentee ballots. 

In same spirit of stacking the courts at the state level, Trump has used his national broadcast pandemic news conferences and his Twitter feed to urge support for Kelly, as reported by Fox News (Trump makes last-minute push for Wisconsin Supreme Court justice. Kelly ran in a "non-partisan" election against lower court state Judge Jill Karofsky (shown at right of Kelly).

daniel kelly jill karofsky CustomTrump's Election Day Tweet (shown below) sought to fool voters by suggesting that gun rights is the big issue. Insiders know that Republicans want Kelly for voter suppression and other election rigging.

With the current financial and news crunch, few mass media outlets provide enough coverage of regional politics and courts anymore to describe, much less thwart, nefarious schemes that unfold in Wisconsin and elsewhere under the veneer of legitimate, good-faith litigation.

Furthermore, few reporters and their outlets dare to ascribe in blunt, understandable terms the apparent motives of supreme court judges, federal or national, who are typically accorded great deference as eminences even when their skulduggery and conflicts are obvious.    

Ten years ago, the Justice Integrity Project was founded to expose prosecutorial and judicial corruption of this kind.

supreme court headshots 2019

washington post logoWashington Post, Supreme Court rules for Republicans over Wisconsin vote, highlighting partisan divide before November poll, Robert Barnes, April 8, 2020 (print ed.). Conservative majority prevails in the fight between Republicans and Democrats on the issue of extending absentee balloting.

Just the caption of the case — Republican National Committee v. Democratic National Committee — was foreboding for a Supreme Court that likes to cast itself as above partisan politics.

Little wonder then that just hours after the court’s hastily written, 5 to 4 decision for Republicans in Tuesday’s election in Wisconsin, it was being denounced on social media as the latest version of Bush v. Gore.

The scant, 10-page opinion issued Monday night highlighted the court’s ideological and partisan divide. The justices’ inability to speak with one voice on matters as serious as the coronavirus pandemic and voting rights raised concerns about the legal battles bound to proliferate before the fall elections.

Supreme Court splits along ideological lines in Wisconsin ballot case

“It is a very bad sign for November that the court could not come together and find some form of compromise here in the midst of a global pandemic unlike anything we have seen in our lifetimes,” Richard Hasen, an election law expert at the University of California at Irvine, wrote on his Election Law Blog.

The reaction was predictable. “The U.S. Supreme Court has struck down illegal, desperate attempts from Democrats to extend voting past Election Day,” a Republican State Leadership Committee press release said. “Another great win for democracy — and fair elections.”

“With this outrageous ruling the Supreme Court’s far-right majority put not just its thumb, but its entire fist, on the scale in favor of making it harder for people to vote,” People for the American Way Vice President Marge Baker said in a statement. “ . . . If there were any lingering doubt that Republican aims of voter suppression were being aided and abetted by the courts and via far-right appointments to the bench, it was removed tonight.”

The Supreme Court’s decision to stay lower courts’ decisions that extended absentee balloting for a week comes in an election in which the most notable race is a conservative Republican’s battle to keep his seat on the elected state supreme court.

Palmer Report, Opinion: What we learned from this calamitous Wisconsin election, Bill Palmer, April 8, 2020. The Republican-controlled Wisconsin wisconsin supreme court seal CustomSupreme Court ruled that an in-person election had to take place yesterday, in the middle of a deadly pandemic, and the Republican-controlled United States Supreme Court upheld this murderous decision.

bill palmer report logo headerDespite the danger, people stood in line around the block, all day long, just to make sure their votes were counted. We learned to things in Wisconsin today:

1) The Republicans are willing to try literally anything in the hope of retaining some degree of power, as Donald Trump circles the drain and threatens to the entire GOP down with him.

2) No matter what the Republicans try, Americans will do literally anything to vote Trump out of power. They can keep throwing us curve balls, spit balls, sucker punches, you name it, but dammit, Americans are going to show up and vote in November. And that’s the part they can’t stop.

washington post logoWashington Post, Federal judge expands voting decision to apply to all ex-felons in Florida, Lori Rozsa, April 8, 2020. The ruling is the latest setback to Republican efforts to restrict the restoration of voting rights.

The federal judge overseeing the ongoing dispute between Florida Gov. Ron DeSantis and released felons who want to vote handed the Republican governor another defeat Tuesday.

robert hinkleU.S. District Judge Robert Hinkle said a previous ruling he made that allowed felons to vote, even if they owe fines and fees stemming from their convictions, covers all individuals statewide, not just the 17 people who originally sued DeSantis.

Tuesday’s order applies to an estimated 1.4 million men and women. Though Florida voters in 2018 overwhelmingly passed an amendment to the state’s constitution to allow automatic restoration of voting rights after prison, Republican lawmakers have sought to impose requirements that would block many from registering.

“This is huge. It’s a game-changer,” said Neil Volz, deputy director of the Florida Rights Restoration Coalition. A federal trial on the issue is scheduled for later this month.

April 7

washington post logoWashington Post, Long lines, anger and fear of infection: Wisconsin proceeds with elections under court order, Elise Viebeck, Amy Gardner, Dan Simmons and Jan M. Larson, April 7, 2020. The scene underscored the challenges facing election officials a day after Gov. Tony Evers (D) sought to suspend in-person voting — an order quickly reversed by the Wisconsin Supreme Court.

 daniel kelly jill karofsky Custom

Incumbent Wisconsin Supreme Court Justice Daniel Kelly and Dane County (whose county seat is the state capital of Madison) Judge Jill Karofsky, above, are competing in an ostensibly non-partisan but intensely political race on Tuesday, April 7 for a 10-year-term on the court. The two are in a run-off from a February  primary in which Kelly won 50 % of the vote and Karofsky 37%.

washington post logoWashington Post, Wisconsin’s debacle may be the most infuriating of the coronavirus failures, Ruth Marcus (Washington Post deputy editorial page editor and a graduate of Harvard Law School), April 7, 2020. Americans died to secure the right to vote. No American should have to die in order to exercise it. Yet that is the result, cruelly predictable and entirely unnecessary, of an obtuse pair of rulings Monday on the eve of elections in Wisconsin.

There are so many enraging aspects of the pandemic, chief among them the Trump administration’s utter failure to adequately prepare for or respond to the crisis, and the president’s wrong-headed, mixed and petulant messaging. But the Wisconsin debacle may be the most infuriating, not only because it was so avoidable but also because it is hard to escape the sense that partisan considerations infected the outcome, whether knowingly or more subtly.

Was it really a coincidence that Republican-backed justices in Wisconsin and Republican-nominated justices on the U.S. Supreme Court all sided against giving voters more time to cast ballots? Was it really a coincidence that their grudging interpretations of the law aligned with Republicans’ political interests?

It is impossible to reconcile the logic of holding an in-person election with a stay-at-home order in place, and yet that is what happened Tuesday, as long lines of would-be voters risked their health to vote. This is a choice that no one should be forced to make. But conservative justices, on the Wisconsin Supreme Court and the U.S. Supreme Court, left many would-be Wisconsin voters no option between danger and disenfranchisement.

Fox News, Trump makes last-minute push for Wisconsin Supreme Court justice as state holds election during pandemic, Tyler Olson, April 6, 2020. Wisconsin Supreme Court rules against Governor, blocks vote delay.

fox news logo SmallAfter two last-minute legal challenges, Wisconsin voters will head to the polls in the middle of the coronavirus pandemic Tuesday for an election in which President Trump has come out with a strong endorsement — not in the Democratic presidential primary most Americans are aware of, wisconsin supreme court seal Custombut for incumbent Wisconsin Supreme Court Justice Daniel Kelly.

Back-to-back Monday rulings by the Wisconsin Supreme Court and the U.S. Supreme Court against Wisconsin Gov. Tony Evers' efforts to postpone the in-person voting day and extending the absentee ballot deadline locked in the Badger State's election for Tuesday.

This effectively forces voters who have not yet received absentee ballots to trek to the polls in the middle of the coronavirus pandemic in order to cast their ballots.

As the drama unfolded Monday, Trump re-upped his initial Friday of endorsement of Kelly, whom the president called "tough on crime" and said is doing a "terrific job" protecting the Second Amendment. Kelly recused himself from the Monday decision forcing the election to go forward.

TheHill.com, Opinion: How a Wisconsin Supreme Court race could impact the presidential election, Maria Cardona, April 7, 2020. Amid the coronavirus pandemic, there is little room for any other news. But this Tuesday, April 7, Wisconsin is poised to make news as it holds primaries that include a critical Supreme Court race.

Democrats fought to turn the election into an all vote-by-mail affair in order to protect voters. But the Republican-led state legislature on Saturday voted to hold in-person voting this Tuesday.

This election could profoundly affect the country, with many saying that Wisconsin is the “tipping point” state in the November presidential election.

Why does this Supreme Court race matter? Because Trump allies have proposed a massive purge of Wisconsin voters using suspect data. They want to suppress the votes of Democratic-leaning voters.

Why else would the Wisconsin GOP intentionally kick hundreds of thousands of Wisconsin voters off the rolls in this swing state?

Justice Dan Kelly, an incumbent with an exceedingly thin résumé, was appointed by former Governor Scott Walker. He’s been endorsed by President Trump, and he’s running his “nonpartisan” campaign out of the Wisconsin Republican Party Headquarters. Kelly has recused himself from that voter purge case, but he signaled last month he would likely rejoin the case after this election.

Nothing less than our democracy is at stake in the Wisconsin Supreme Court race. No one knows what other shenanigans conservative special interests will try to pull off through the court. But on Tuesday, when voters also pick presidential candidates, mayors and school board directors, the integrity of the November election in Wisconsin, and the nation, is surely on the ballot.

Judge Jill Karofsky, who serves on a criminal court bench in Dane County, is the progressive candidate. I know Jill very well, as we were undergraduates together at Duke University. After college, we both moved to Washington, D.C., where Jill worked on Capitol Hill and then returned to Wisconsin to earn her law degree.

She built a long and distinguished career as a prosecutor and victims’ advocate, serving two Republican attorneys general as a statewide domestic violence prosecutor and director of the office of crime victim services. She was then elected to the bench.

The Democratic Party has embraced her candidacy, pumping $1.3 million into her campaign. But Jill is still getting outspent on the airwaves by massive amounts of money run through the national Republican State Leadership Committee (RSLC) and the state chamber of commerce. These players want to not only elect Kelly but guarantee victory for Trump in Wisconsin in November.

But they need to deceive voters in order to do it. The ads run by the RSLC earned a “Pants on Fire” from PolitiFact for outright lying about Karofsky’s record as a criminal prosecutor. Karofsky has sued the RSLC, but false ads are still running with millions of dollars of television time behind them.

Dan Kelly had zero prosecutorial or judicial experience when Scott Walker plucked him from the advisory board of the conservative Wisconsin Institute for Law and Liberty. Kelly oversaw defending some of the Walker administration’s most partisan actions, including redistricting maps in 2011 that have helped Republicans keep control of both houses of the legislature.

That same Wisconsin Institute for Law and Liberty tried at least six cases in front of the Supreme Court since 2016. Kelly didn’t recuse himself from a single one and ruled in their favor every time.

And guess who is pushing the voter purge case? The Wisconsin Institute of Law and Liberty.

Meanwhile, Karofsky has been on offense throughout the campaign. She has called out Kelly’s corruption, and earned the support of current and former high court justices, a bipartisan group of law enforcement officials, almost every elected Democrat in the state, organized labor, Planned Parenthood and Wisconsin Conservation Voters. Her three-decade legal career dwarfs Kelly’s experience and shows a clear commitment to a functioning and fair judicial system where everyone is treated equally.

Her accomplishments don’t end in the courtroom. Karofsky’s a two-time Ironman triathlete, an accomplished long-distance runner (she finished a 50-mile run in the middle of her campaign) and a single mom to two teenagers.

It would be easy to overlook a non-partisan judicial race in the middle of the country right now. With wall-to-wall coverage of the coronavirus pandemic and Donald Trump turning his daily briefings into a two-hour reality train wreck, it is hard to focus on anything else.

But we must. The outcome of this race could have a dramatic impact on the general election, and it’s certain to affect how laws are applied in Wisconsin for at least the next decade.

The Republicans are pulling out all the stops. While Donald Trump tweets about this race, Republicans in Wisconsin are refusing to consider allowing the state’s voters to vote by mail and stay safe next Tuesday. They either don’t mind putting voters at risk, or they believe voters will be scared to show up and that low turnout will benefit their unqualified candidate.

Maria Cardona is a longtime Democratic strategist and co-chair of the Democratic National Committee's rules and bylaws committee for the party's 2020 convention. She is a principal at Dewey Square Group, a Washington-based political consulting agency, and a CNN/CNN Español political commentator. Follow her on Twitter @MariaTCardona.

April 6

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Slate, Commentary: By a 5-4 Vote, SCOTUS Lets Wisconsin Throw Out Tens of Thousands of Ballots, Mark Joseph Stern, April 6, 2020. On Monday, by a 5–4 vote, the U.S. Supreme Court approved one of the most brazen acts of voter suppression in modern history.

The court will nullify the votes of citizens who mailed in their ballots late — not because they forgot, but because they did not receive ballots until after Election Day due to the coronavirus pandemic.

ruth bader ginsburg scotusAs Justice Ruth Bader Ginsburg, right, wrote in dissent, the court’s order “will result in massive disenfranchisement.” The conservative majority claimed that its decision would help protect “the integrity of the election process.” In reality, it calls into question the legitimacy of the election itself.

Wisconsin has long been scheduled to hold an election on April 7. There are more than 3,800 seats on the ballot, and a crucial state Supreme Court race. But the state’s ability to conduct in-person voting is imperiled by COVID-19.

Thousands of poll workers have dropped out for fear of contracting the virus, forcing cities to shutter dozens of polling places. Milwaukee, for example, consolidated its polling locations from 182 to five, while Green Bay consolidated its polling locations from 31 to two.

Gov. Tony Evers asked the Republican-controlled Legislature to postpone the election, but it refused. So he tried to delay it himself with an executive order on Monday. But the Republican-dominated state Supreme Court reinstated the election, thereby forcing voters to choose between protecting their health and exercising their right to vote.

Because voters are rightfully afraid of COVID-19, Wisconsin has been caught off guard by a surge in requests for absentee ballots. Election officials simply do not have time, resources, or staff to process all those requests.

As a result, a large number of voters — at least tens of thousands — won’t get their ballots until after Election Day. And Wisconsin law disqualifies ballots received after that date. In response, last Thursday, a federal district court ordered the state to extend the absentee ballot deadline. It directed officials to count votes mailed after Election Day so long as they were returned by April 13. A conservative appeals court upheld his decision.

Now the Supreme Court has reversed that order. It allowed Wisconsin to throw out ballots postmarked and received after Election Day, even if voters were entirely blameless for the delay. (Thankfully, ballots postmarked by Election Day but received by April 13 still count because the Legislature didn’t challenge that extension.)

In an unsigned opinion, the majority cited the Purcell principle, which cautions courts against altering voting laws shortly before an election. It criticized the district court for “fundamentally alter[ing] the nature of the election by permitting voting for six additional days after the election.” And it insisted that the plaintiffs did not actually request that relief — which, as Ginsburg notes in her dissent, is simply false.

April 1

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Howe on the Court via SCOTUSblog, Courtroom access: The nuts and bolts of courtroom seating – and the lines for public access, Amy Howe, April 1, 2020. On an average argument day at the Supreme Court, there are 439 seats in the courtroom. Of those 439, only 50 – that is, just over 11 percent – are specifically set aside for members of the general public. The other 389 are divided among several different groups.

See sketch of the empty courtroom (Art Lien). The labels refers to: (A) justices’ bench, (B) clerk’s seats, (C) marshal’s seats, (D) arguing counsel tables, (E) press section, (F) justices’ box, (G) bar section and (H) public gallery. Overflow seats for press and the public are located between the columns on the left and behind the public gallery, and seats for court employees are located between the columns on the right.

The “public line”: The line to obtain one of the 50 public seats (the so-called “public line”) forms on the sidewalk in front of the court – on the right-hand side if you are facing the Supreme Court building, with the Capitol behind you across First Street. At around 7:30 on the morning of an argument, Supreme Court police officers begin to hand out at least 50, but sometimes more, tickets.

The press corps, the justices’ box and the clerks’ seats: On one side of the courtroom, perpendicular to the bench, 36 seats are allocated to members of the press. Across the courtroom on the other side, and also perpendicular to the bench, 37 seats are reserved for retired justices, the justices’ spouses and VIP guests (including Ivanka Trump and her daughter at one argument in 2017) and senior court officials. The justices’ law clerks have 27 seats in less desirable real estate farther back in the courtroom, on the same side as the justices’ box.

The “bar section” and the “bar line”: Between the press section and the justices’ box sits the “bar section”: 78 seats reserved for members of the Supreme Court bar. Although the Supreme Court bar is sometimes described as an elite fraternity, the requirements for membership are fairly simple: To be admitted, you must have stayed out of trouble while practicing law for at least three years, find two lawyers who have already been admitted to the bar to vouch for you, and pay a $200 fee. Once admitted, you can sign briefs and argue in the Supreme Court, but one of the best perks for most people is the seating. Although there are a lot of lawyers in Washington, it’s almost always still easier to get a seat in the bar section than in the public section.

Although there are 78 seats in the bar section, that doesn’t mean that the first 78 lawyers in the bar line will be guaranteed seats there. On days when the justices take the bench to hear oral arguments (as well as most non-argument sessions), they also admit new lawyers to the Supreme Court bar. Those lawyers are seated in the bar section without having to wait in line, as are the bar members who are moving their admission. On days when a lot of lawyers are being admitted, over half of the seats in the bar section may be taken before any of the tickets are handed out to regular bar members. But even if they don’t make it into the courtroom, bar members have a consolation prize that is not available to people waiting in the public line: They can sit and listen to the arguments in the lawyers’ lounge, a large room on the same floor as the courtroom where live audio is piped in over speakers.

The “three-minute line” : There are 25 seats set aside in the back of the courtroom for members of the public who wait in the “three-minute line,” which allows many people to cycle through the courtroom for three to five minutes at a time.

Reserved seats in the public sector: If you have been tallying up the seats as you read along, you know that there are still 186 seats unaccounted for. These are what are known as the “reserved” seats in the public section of the courtroom, which are overseen by the Marshal’s Office at the Supreme Court. The reserved seats are set aside for school groups, the guests of the newly admitted bar members (who get one seat each), the guests of the lawyers arguing that day (who get six seats each, unless the argument is divided, in which case they get four) and “guests of the court.” If any of these 186 seats are not being used for one of these categories, they are made available for the public line.

March

March 20

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SCOTUSblog, Analysis: What next for oral arguments? Tom Goldstein (SCOTUSblog founder and Supreme Court litigator), March 19, 2020. Having indefinitely postponed its March oral argument sitting, the Supreme Court will need to develop a plan for these cases and those in the April sitting too. There are 20 oral arguments in question: 11 for March and nine for April. Because there is little relevant precedent, there is no way to predict what the court will do. In this post, I lay out what seems most likely and sensible to me.

Note that the question of how to handle oral arguments is not enormously consequential to the justices. The public pays a lot of attention to the court’s public sessions—including arguments—because they are the most visible parts of the court’s work. But they are the tip of the iceberg; almost everything is going on out of sight, below the surface. The court continues to process new cases and write opinions deciding existing cases, largely uninterrupted by the virus.

With respect to oral arguments, my premise is that it will not be possible for the court to hold its April sitting — at least as traditionally conducted. The current CDC guidance is that there should not be events of 50 or more people until at least early May.

supreme court buildingI think the court will postpone ordinary public arguments for longer than that. The virus is a distinct threat to the health of the justices, because it is most dangerous for people aged 60 and older. It is extremely dangerous for those aged 80 and over who have prior medical conditions. More broadly, holding oral arguments creates risks for the court’s staff and the advocates.

For most of the March and April cases, the court does not need to take any risks. It has a strong preference for holding oral argument, and for doing so in monthly sittings from October through April. But these are not ordinary times, and no statute or rule requires it to do so.

The court could go ahead and resolve roughly one third of the March and April cases without oral arguments. In cases that appear to be unanimous and in which no justice requests argument, it could prepare opinions. If it became apparent during the drafting process that oral argument would be useful, the case could then be heard next term.

There are four cases — raising two issues — in which the court is likely to conclude that oral argument is necessary and cannot be deferred so long. Two are the presidential tax return cases. (Technically, they are three cases, Nos. 19-635, 19-715 and 19-760, scheduled for two arguments.) Those have direct implications for ongoing congressional investigations of the president and an ongoing grand jury investigation.

The other two are the so-called “faithless electors” cases (Nos. 19-465 and 19-518). (These were originally scheduled for one hour of argument, but now are set for two because of the recusal of Justice Sonia Sotomayor from No. 19-518.) Those have direct implications for the 2020 presidential election, because they involve voting in the electoral college.

These four cases will require the court to navigate serious concerns of public health, the justices’ own health and the public’s access to the court’s proceedings. Here, I think the court is likely to hold oral arguments in April or May, but under unique and stringent procedures required by the circumstances.

The arguments in all four cases could be held on a single day: one set in the morning, and another in the afternoon. The public and the bar would be excluded. The core press corps — so-called “hard pass” holders — would be seated in the public section, separated consistent with “social distancing.” The table from which counsel argue would be moved several feet farther back from the bench. The audio would be released promptly after the argument, consistent with past practice in certain high-profile cases.

By May, testing kits for the virus should certainly be available for the justices and their essential staff. Even then, some members of the court may exercise their judgment not to attend the arguments. They would review the tape or transcript of the arguments instead. This would be consistent with past practice for health-related absences — for example, while Justice Ruth Bader Ginsburg was recently recovering from surgery.

March 16

U.S. Courts

ny times logoNew York Times, McConnell Has a Request for Veteran Federal Judges: Please Quit, Carl Hulse, March 16, 2020. Senator Mitch McConnell has encouraged judges thinking about stepping down to do so soon to ensure that Republicans confirm their replacements.

Running out of federal court vacancies to fill, Senate Republicans have been quietly making overtures to sitting Republican-nominated judges who are eligible to retire to urge them to step aside so they can be replaced while the party still holds the Senate and the White House.

Senator Mitch McConnell, Republican of Kentucky, who has used his position as majority leader to build a judicial confirmation juggernaut for President Trump over the past three years, has been personally reaching out to judges to sound them out on their plans and assure them that they would have a worthy successor if they gave up their seats soon, according to multiple people with knowledge of his actions.

It was not known how many judges were contacted or which of them Mr. McConnell had spoken to directly. One of his Republican colleagues said others had also initiated outreach in an effort to heighten awareness among judges nominated by Presidents Ronald Reagan, George Bush and George W. Bush that making the change now would be advantageous.

The overt effort by Republicans to create vacancies reflects a realization that Mr. Trump could lose the presidency, or that Republicans could lose the Senate majority and deprive Mr. Trump of his partner on judicial confirmations even if he did gain a second term.

Mike Davis, a former nomination counsel for Senate Republicans who created the Article III Project, a conservative judicial advocacy group, said that he still expected Mr. Trump to win, but that “we have to hope for the best and plan for the worst.”

Republicans are reminding the judges that it could be another eight years — 2029 — before they could leave under a Republican president.

Mr. Davis estimated that judges would need to decide by late summer or early fall to provide sufficient time for a nomination and confirmation.

According to a tally by the Article III Project, more than 90 judges nominated by the three previous Republican presidents are either now eligible or will become eligible this year to take what is known as senior status, a form of semiretirement that enables their slots to be filled even though they can still hear cases, hire clerks and receive full pay.

Twenty-eight of them are judges on the influential appeals courts, which have been a particular focus of the alliance between the Trump White House and Senate Republicans. One of them, Judge Thomas B. Griffith of the U.S. Court of Appeals for the District of Columbia Circuit, announced last week that he planned to retire in September, giving Mr. Trump the opportunity to make a third appointment to the powerful court in what will most likely be a contentious confirmation fight.

March 14

supreme court building

ny times logoNew York Times, A Conservative Agenda Unleashed on the Federal Courts, Rebecca R. Ruiz, Robert Gebeloff, Steve Eder and Ben Protess, March 14, 2020. President Trump’s imprint on the nation’s appeals courts has been swift and historic. He has named judges with records on a range of issues important to Republicans — and to his re-election.

As a Republican candidate for the Texas Supreme Court, Don R. Willett flaunted his uncompromising conservatism, boasting of endorsements from groups with “pro-life, pro-faith, pro-family” credentials.

“I intend to build such a fiercely conservative record on the court that I will be unconfirmable for any future federal judicial post — and proudly so,” a Republican rival quoted him telling party leaders.

Judge Willett served a dozen years on the Texas bench. But rather than disqualifying him, his record there propelled him to the very job he had deemed beyond reach. President Trump nominated him to a federal appeals court, and Republicans in the Senate narrowly confirmed him on a party-line vote.

As Mr. Trump seeks re-election, his rightward overhaul of the federal judiciary — in particular, the highly influential appeals courts — has been invoked as one of his most enduring accomplishments. While individual nominees have drawn scrutiny, The New York Times conducted a deep examination of all 51 new appellate judges to obtain a collective portrait of the Trump-populated bench.

The review shows that the Trump class of appellate judges, much like the president himself, breaks significantly with the norms set by his Democratic and Republican predecessors, Barack Obama and George W. Bush.

republican elephant logoThe lifetime appointees — who make up more than a quarter of the entire appellate bench — were more openly engaged in causes important to Republicans, such as opposition to gay marriage and to government funding for abortion.

They more typically held a political post in the federal government and donated money to political candidates and causes. Just four had no discernible political activity in their past, and several were confirmed in spite of an unfavorable rating from the American Bar Association — the first time that had happened at the appellate level in decades.

Two-thirds are white men, and as a group, they are much younger than the Obama and Bush appointees.

Once on the bench, the Trump appointees have stood out from their fellow judges, according to an analysis by The Times of more than 10,000 published decisions and dissents through December.

When ruling on cases, they have been notably more likely than other Republican appointees to disagree with peers selected by Democratic presidents, and more likely to agree with those Republican appointees, suggesting they are more consistently conservative. Among the dozen or so judges that most fit the pattern, The Times found, are three Mr. Trump has signaled were on his Supreme Court shortlist.

While the appellate courts favor consensus and disagreement remains relatively rare — there were 125 instances when a Trump appointee wrote the majority opinion or dissent in a split decision — the new judges have ruled on disputed cases across a range of contentious issues, including abortion, immigration, L.G.B.T. rights and lobbying requirements, the examination shows.

One new judge, who had held a political job in the Trump administration, dissented on an issue of particular importance to the president: disclosure of his financial records. The judge, Neomi Rao, opposed a decision requiring the release of the documents to a congressional committee, a mandate the president continues to resist and is now before the Supreme Court.

“They have long records of standing up, and they’re not afraid of being unpopular,” said Carrie Severino, president of the Judicial Crisis Network, a conservative advocacy group that has pushed for the mold-breaking appointments. Ms. Severino once served as a law clerk for Justice Clarence Thomas, one of the Supreme Court’s most reliably conservative members.

Stephen B. Burbank, a law professor at the University of Pennsylvania, said Mr. Trump’s appointments reflected attempts by recent presidents to draw the federal judiciary — a constitutionally independent branch of government — into policy debates more appropriate in Congress and the White House.

“The problem as I see it is not that judges differ ideologically — of course they do — nor is it that a Republican president would look for someone with congenial ideological preferences,” Mr. Burbank said. “It’s that in recent decades the search has been for hard-wired ideologues because they’re reliable policy agents.”

  • New York Times, These 51 judges were named by Mr. Trump.
  • New York Times, Here are five takeaways from our examination on how Mr. Trump has reshaped the federal judiciary.

March 13

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Slate, Former Judge Resigns From the Supreme Court Bar, Dahlia Lithwick, March 13, 2020. In a letter to Chief Justice John Roberts, he detailed why he’s lost faith in the court.

James Dannenberg is a retired Hawaii state judge. He sat on the District Court of the 1st Circuit of the state judiciary for 27 years. Before that, he served as the deputy attorney general of Hawaii. He was also an adjunct professor at the University of Hawaii Richardson School of Law, teaching federal jurisdiction for more than a decade. He has appeared on briefs and petitions as part of the most prestigious association of attorneys in the country: the Supreme Court Bar. The lawyers admitted to practice before the high court enjoy preferred seating at arguments and access to the court library, and are deemed members of the legal elite. Above all, the bar stands as a sprawling national signifier that the work of the court, the legitimacy of the institution, and the business of justice is bolstered by tens of thousands of lawyers across the nation.

On Wednesday, Dannenberg tendered a letter of resignation from the Supreme Court Bar to Chief Justice John Roberts. He has been a member of that bar since 1972. In his letter, reprinted in full below, Dannenberg compares the current Supreme Court, with its boundless solicitude for the rights of the wealthy, the privileged, and the comfortable, to the court that ushered in the Lochner era in the early 20th century, a period of profound judicial activism that put a heavy thumb on the scale for big business, banking, and insurance interests, and ruled consistently against child labor, fair wages, and labor regulations.

The Chief Justice of the United States

Washington, D.C. 20543

March 11, 2020

Dear Chief Justice Roberts (right):

john roberts oI hereby resign my membership in the Supreme Court Bar.

This was not an easy decision. I have been a member of the Supreme Court Bar since 1972, far longer than you have, and appeared before the Court, both in person and on briefs, on several occasions as Deputy and First Deputy Attorney General of Hawaii before being appointed as a Hawaii District Court judge in 1986. I have a high regard for the work of the Federal Judiciary and taught the Federal Courts course at the University of Hawaii Richardson School of Law for a decade in the 1980s and 1990s. This due regard spanned the tenures of Chief Justices Warren, Burger, and Rehnquist before your appointment and confirmation in 2005. I have not always agreed with the Court’s decisions, but until recently I have generally seen them as products of mainstream legal reasoning, whether liberal or conservative. The legal conservatism I have respected– that of, for example, Justice Lewis Powell, Alexander Bickel or Paul Bator– at a minimum enshrined the idea of stare decisis and eschewed the idea of radical change in legal doctrine for political ends.

I can no longer say that with any confidence. You are doing far more— and far worse– than “calling balls and strikes.” You are allowing the Court to become an “errand boy” for an administration that has little respect for the rule of law.

The Court, under your leadership and with your votes, has wantonly flouted established precedent. Your “conservative” majority has cynically undermined basic freedoms by hypocritically weaponizing others. The ideas of free speech and religious liberty have been transmogrified to allow officially sanctioned bigotry and discrimination, as well as to elevate the grossest forms of political bribery beyond the ability of the federal government or states to rationally regulate it. More than a score of decisions during your tenure have overturned established precedents—some more than forty years old– and you voted with the majority in most. There is nothing “conservative” about this trend. This is radical “legal activism” at its worst.

Without trying to write a law review article, I believe that the Court majority, under your leadership, has become little more than a result-oriented extension of the right wing of the Republican Party, as vetted by the Federalist Society. Yes, politics has always been a factor in the Court’s history, but not to today’s extent. Even routine rules of statutory construction get subverted or ignored to achieve transparently political goals. The rationales of “textualism” and “originalism” are mere fig leaves masking right wing political goals; sheer casuistry.

Your public pronouncements suggest that you seem concerned about the legitimacy of the Court in today’s polarized environment. We all should be. Yet your actions, despite a few bromides about objectivity, say otherwise.

It is clear to me that your Court is willfully hurtling back to the cruel days of Lochner and even Plessy. The only constitutional freedoms ultimately recognized may soon be limited to those useful to wealthy, Republican, White, straight, Christian, and armed males— and the corporations they control. This is wrong. Period. This is not America.

I predict that your legacy will ultimately be as diminished as that of Chief Justice Melville Fuller, who presided over both Plessy and Lochner. It still could become that of his revered fellow Justice John Harlan the elder, an honest conservative, but I doubt that it will. Feel free to prove me wrong.

The Supreme Court of the United States is respected when it wields authority and not mere power. As has often been said, you are infallible because you are final, but not the other way around.

I no longer have respect for you or your majority, and I have little hope for change. I can’t vote you out of office because you have life tenure, but I can withdraw whatever insignificant support my Bar membership might seem to provide.

Please remove my name from the rolls.

With deepest regret,

James Dannenberg

March 12

ny times logoNew York Times, Opinion: The Supreme Court’s Fictional Middle Ground on Abortion, Linda Greenhouse, right, March 12, 2020 (print ed.). There is no such thing. linda greenhouse thumb CustomFollowing last week’s argument in a Louisiana abortion case, the consensus among attentive Supreme Court-watchers is that the outcome depends on Chief Justice John Roberts, who seemed not to share Justice Samuel Alito’s visceral dislike of abortion clinics and his deep suspicion of doctors who work in them. I agree.

Further, many of these close observers came away believing that even if the justices rule for Louisiana, they will take neither of the two drastic steps being pressed on the court by the state and its White House ally: to reject four decades of settled law under which doctors can challenge abortion restrictions on their patients’ behalf, or to overturn the 2016 decision that struck down the same admitting-privileges requirement in Texas that Louisiana is now defending.

I agree with that prediction as well. The chief justice seemed to be probing for ways within the framework of the 2016 decision that Louisiana might be different from Texas, either because of a more persuasive rationale for requiring clinic doctors in Louisiana to have hospital admitting privileges or because the requirement imposes a lesser obstacle to abortion access in Louisiana than it did in Texas.

So why do I think that anyone who cares about preserving women’s access to abortion should be seriously worried? Wouldn’t a state-specific win for Louisiana, one that left existing precedents on the books, represent a reprieve from looming disaster, a moderate place for this conservative court to land, however tentatively or temporarily?

The answer to that question is an emphatic “no.”

When it comes to the abortion landscape, there is no distinction that matters between Texas and Louisiana. There is not the shadow of a doubt that these laws were enacted not to protect women’s health, but to destroy the medical infrastructure that enables women to exercise their constitutional right to terminate a pregnancy.

March 7

The Atlantic, Trump Is Counting on the Supreme Court to Save Him, David Frum, March 7, 2020. The president’s remarkable lawsuit against his own accountants and bankers can succeed only if the conservative majority intervenes on his behalf.

Sometime before June 29, 2020, the U.S. Supreme Court will either plunge the United States into the severest constitutional crisis of the Trump years — or save Americans from that crisis.

Three different committees of Congress, as well as New York State prosecutors, have issued subpoenas to President Donald Trump’s accountants and bankers for his tax and business records. Trump has sued to stop the accountants and bankers from complying. He has lost atlantic logo horizontaltwice at the district-court level and twice at the appeals-court level. Now he is looking to the conservative majority on the Supreme Court to rescue him.

On March 31, the court will hear oral arguments in the cases of Trump v. Mazars and Trump v. Deutsche Bank. The decision will be rendered sometime between then and the court’s summer break.

Although Trump is suing his accountants and his bankers as a private citizen, his case has been joined by the Department of Justice. Solicitor General Noel Francisco has signed an amicus brief on behalf of the United States. It is an astonishing document. It invites the Supreme Court to junk two centuries of precedent — and to substitute an entirely new system of judicial review of congressional subpoenas that involve a president.

A legislative subpoena must therefore satisfy heightened requirements when it seeks information from the President.

At the threshold, the full chamber should unequivocally authorize a subpoena against the President. Moreover, the legislative purpose should be set forth with specificity. Courts should not presume that the purpose is legitimate, but instead should scrutinize it with care. And as with information protected by executive privilege, information sought from the President should be demonstrably critical to the legislative purpose. A congressional committee cannot evade these heightened requirements merely by directing the subpoena to third-party custodians, for such agents generally assume the rights and privileges of their principal, as this Court has recognized in analogous cases.

supreme court graphicAll the requirements in that above paragraph were devised for purposes of this litigation.

None of them has ever been enforced — none of them has ever been imagined — in the previous 230 years of skirmishing between Congresses and presidents. Every must and should and cannot was invented in this very brief, for the immediate legal purposes of this president in this dilemma. The solicitor general might as well have said that subpoenas must be delivered by a sled pulled by flying reindeer, for all the connection between these demands and the previous constitutional history of the United States.

As the House of Representatives noted in the brief it filed, previous Congresses have obtained the bank records of Presidents Andrew Johnson and Jimmy Carter, and the tax records of President Richard Nixon. They have read the diaries of President Ronald Reagan and the law-firm billing records of first lady Hillary Clinton.

It’s never before been the law that a subpoena of the president must be authorized by “the full chamber,” much less that this authorization be “unequivocal” — whatever that means.

It’s never before been the law that the president’s privileges — whatever they are — also extend to his private business agents.

It’s never before been the law that the courts set themselves over Congress as scrutinizers of its subpoenas, approving or disapproving. Until now, instead, courts have always extended the utmost deference to congressional investigations, from the first Washington administration onward.

The Trump administration cannot cite case law for any of its new demands. It quotes few cases, very briefly and tangentially, and strikingly often with ellipses in the middle of the quote. Instead, it bases its argument on its own vision of the awesome and unassailable power of the presidency. “The President faces a unique risk of harassment in response to his official policies or actions,” his lawyers argue. To heighten that risk, they quote the 1952 case involving President Harry Truman’s seizure of steel plants during the Korean War: “In drama, magnitude and finality [the president’s] decisions so far overshadow any others that almost alone he fills the public eye and ear.” They continue, this time quoting the Supreme Court’s language in the Paula Jones lawsuit against President Clinton: “Likewise, the President ‘occupies a unique office with powers and responsibilities so vast and important that the public interest demands he devote his attention to his public duties.’”

The history-minded reader will recall that Truman lost the steel-seizure case, and that Clinton likewise lost his fight to be immune from civil liability for sexual harassment. Oftentimes, such effusive compliments to the office of the presidency in the language of a Supreme Court decision serve as consolation prizes for some rebuffed claim of presidential power. But Trump’s Department of Justice deploys the compliments as if they constituted the law itself, not the wrapping paper around the law.

The House brief hits back with actual precedents from pertinent law—and this bottom line: “In more than twenty cases concerning the scope of Congress’ power to investigate, this Court has only once held that a Congressional inquiry exceeded its constitutional limits.” That case—Kilbourn v. Thompson—dated from 1880 and dealt with the aftermath of the bankruptcy of a big bond house, J. Cooke and Sons. And even that case was effectively overruled in 1962. “At most,” the Supreme Court said, “Kilbourn is authority for the proposition that Congress cannot constitutionally inquire ‘into the private affairs of individuals who hold no office under the government’ when the investigation ‘could result in no valid legislation on the subject to which the inquiry referred.’” But otherwise, as the Supreme Court held in 1951, for a court “to find that a committee’s investigation has exceeded the bounds of legislative power it must be obvious that there was a usurpation of functions exclusively vested” elsewhere.

All told, the record supports the dry opening of the House brief: “Many momentous separation-of-powers disputes have come before this Court,” it reads. “This dispute, regarding four document subpoenas to third parties for records not covered by any privilege, is not one of them.” The only thing remarkable about the Mazars and Deutsche Bank cases, the House adds, “is the extraordinary breadth of the arguments that President Trump and the Solicitor General make about the supposed power of a President to thwart investigations in furtherance of Congress’s Article I legislative and oversight functions."

By all rights, these cases should end in the kind of defeat for Trump nicely described by a favorite joke of Chief Justice John Roberts. When asked how a certain case could have been decided against a petitioner 9–0, Roberts is said to have replied: “You must remember, there are only nine justices on the Supreme Court.”

But this is the Trump era. The courts are partisan and getting more so. Although Trump lost every previous round of this litigation, one appellate judge did agree with him on the merits: his own appointee to the D.C. Circuit, Neomi Rao.

In her dissent from the majority opinion against Trump, Rao advanced an arresting new claim: “When Congress seeks information about the President’s wrongdoing, it does not matter whether the investigation also has a legislative purpose … Allegations that an impeachable official acted unlawfully must be pursued through impeachment … [and] cannot be investigated by Congress except through impeachment.”

This is wild talk that would shut down almost all congressional investigations. It asks that Congress decide whether an act was unlawful before it begins its investigation of that act. It’s an argument that cannot be applied in real life — and is probably not meant to be applied in real life beyond this one and only application: shutting down an unwanted investigation of President Trump.

Plainly, there is something in those documents that Trump dreads letting the world see. We now seem on track to one of three possible outcomes of this dispute.

The first is that precedent and law prevail. Trump loses his lawsuit against his accountants and bankers, and the subpoenaed documents are surrendered to Congress.

The second is that the political imperative to save Trump that swayed Rao will sway the conservative justices on the Supreme Court — and that Trump’s secrets will be protected by a 5–4 decision.

The third is that Trump loses — but continues to devise new delays to thwart the subpoenas and defy not only Congress but also the courts.

Every one of these possible outcomes leads to explosive controversy in the summer before the 2020 election.

In the first case, we are surely plunged into a screaming hurricane of Trump scandals.

In the second, the legitimacy of the Supreme Court will be called into doubt in a way not seen in decades, if ever.

And in the third, we confront a full-blown crisis of the rule of law.

Under all three scenarios, the issues raised by impeachment in early 2020 come roaring back for the election finale. Trump’s evident corruption, the questions over his thralldom to the Putin regime in Russia, the refusal of the Republican Party to uphold law when inconvenient to Trump — you thought we’d talked them to death during impeachment? There is so much more to come.

March 5

washington post logoWashington Post, Commentary: Why you should care about the Chuck Schumer-John Roberts dustup, Aaron Blake, March 5, 2020. Schumer told two Supreme Court justices they would “pay the price” and “you won’t know what hit you” if they rule the wrong way. And then he suggested the chief justice is acting politically.

Perhaps we’re past the moment where Supreme Court justices will be viewed as anything other than political pawns. But that’s an extraordinary state of affairs.

The chief justice of the United States and the highest-ranking Senate Democrat got into a war of words Wednesday that epitomized how the relationship between our legislative and judicial branches has taken a severe turn for the worse.

Senate Minority Leader Charles E. Schumer (D-N.Y.) early in the day warned Supreme Court Justices Brett M. Kavanaugh and Neil M. Gorsuch “you will pay the price” and “you won’t know what hit you” if they rule against reproductive rights.

john roberts oThat prompted a highly unusual rebuke from Chief Justice John G. Roberts Jr., right, who called Schumer’s comments “dangerous.”

“Justices know that criticism comes with the territory, but threatening statements of this sort from the highest levels of government are not only inappropriate, they are dangerous,” Roberts said.

Roberts rebukes Schumer over comments that Kavanaugh, Gorsuch will ‘pay the price’

Schumer’s office then shot back by suggesting that Roberts wasn’t being fair in his public comments and had sided with Republicans.

“For Justice Roberts to follow the right wing’s deliberate misinterpretation of what Sen. Schumer said, while remaining silent when President Trump attacked Justices [Sonia] Sotomayor & [Ruth Bader] Ginsburg last week, shows Justice Roberts does not just call balls and strikes,” Schumer spokesman Justin Goodman said, referring to Roberts saying in his confirmation hearing that he felt a judge’s role was to call balls and strikes.

Goodman previously issued a statement suggesting that Schumer’s comments had been blown out of proportion and that he meant the justices would be met with a political movement if they vote the wrong way. “It’s a reference to the political price Republicans will pay for putting them on the court and a warning that the justices will unleash a major grass-roots movement on the issue of reproductive rights against the decision,” Goodman said.

That explanation is eminently plausible, but even it speaks to the political and judicial moment we’re in. And you could even argue it’s a “threat” of one sort or another.

washington post logoWashington Post, Schumer says he misspoke in remarks directed at 2 Supreme Court justices, defends abortion rights, John Wagner, March 5, 2020.
The comments from Senate Minority Leader Charles E. Schumer (D-N.Y.) came amid outrage about his remarks about Justices Brett Kavanaugh and Neil Gorsuch that Chief Justice John G. Roberts Jr. had called “dangerous.”

“I should not have used the words I used yesterday. They didn’t come out the way I intended them to,” Schumer told Senate colleagues Thursday. “I’m from Brooklyn. We speak in strong language. I shouldn’t have used the words I did, but in no way was I making a threat. I never — never — would do such a thing.”

Schumer said he was expressing frustration that Republicans are trying to use the courts to restrict abortion rights in a fashion that they cannot accomplish in Congress.

March 4

supreme court headshots 2019

washington post logoWashington Post, Roberts rebukes Schumer for saying justices will ‘pay the price’ for a vote against abortion rights, Robert Barnes and Colby Itkowitz, March 4, 2020. Schumer to Gorsuch, Kavanaugh: ‘You will pay the price.’

Chief Justice John G. Roberts Jr. issued a rare rebuke of a sitting member of Congress on Wednesday, chastising the Senate’s top Democrat, Minority Leader Charles E. Schumer, for saying at a rally outside the Supreme Court that President Trump’s two nominees to the court would “pay the price” for a vote against abortion rights.

In a highly unusual statement issued by the court, the chief justice recounted comments Schumer (N.Y.) had directed at Neil M. Gorsuch and Brett M. Kavanaugh and said: “Justices know that criticism comes with the territory, but threatening statements of this sort from the highest levels of government are not only inappropriate, they are dangerous. All members of the court will continue to do their job, without fear or favor, from whatever quarter.”

Schumer, speaking to abortion rights supporters Wednesday morning as the Supreme Court heard arguments in an important abortion case from Louisiana, called out the two by name.

“I want to tell you, Gorsuch; I want to tell you, Kavanaugh: You have released the whirlwind, and you will pay the price,” Schumer said. “You won’t know what hit you if you go forward with these awful decisions.”

The whirlwind was just beginning. Pugilistic Republicans and Democrats raced from their respective corners, led by the president, who wrote on Twitter: “This is a direct & dangerous threat to the U.S. Supreme Court by Schumer. If a Republican did this, he or she would be arrested, or impeached. Serious action MUST be taken NOW!”

Later, Trump tweeted about the matter again with a threat similar to the one Schumer was being criticized for making.

“He must pay a severe price for this!” Trump wrote.

The GOP denounced Schumer and criticized the media for what they said was a lack of outrage. Democrats demanded to know why Roberts had not spoken out last week when Trump singled out liberal Justices Ruth Bader Ginsburg and Sonia Sotomayor for criticism, or why he did not defend the federal judge Trump denounced for her oversight of the trial of the president’s friend Roger Stone.

The episode underscored the partisan politics that have engulfed the fight over the judiciary, which is supposed to be the nonpartisan branch of the government.

On the left, Brian Fallon of the liberal nonprofit organization Demand Justice, said: “It takes a certain amount of chutzpah for John Roberts to condemn these comments by Chuck Schumer after saying nothing when President Trump attacked two Democratic-appointed justices just last month.”

Schumer’s remarks came during the circuslike atmosphere that plays out in front of the Supreme Court whenever it hears a controversial case, especially abortion. As protesters from both sides of the issue crowded the sidewalk, Schumer spoke to abortion rights supporters.

After his comments in which he said Gorsuch and Kavanaugh would “pay the price,” Schumer added: “We will tell President Trump and Senate Republicans who have stacked the courts with right-wing ideologues that you’re going to be gone in November, and you’ll never be able to do what you’re trying to do now ever, ever again. You hear that over there on the far right? You’re gone in November.”

March 3

washington post logoWashington Post, Abortion case out of Louisiana a first test for Trump’s Supreme Court justices, Robert Barnes, March 3, 2020. The Supreme Court's next big abortion challenge comes from here in Louisiana. If the state's politicians had their way, so would the one after that. And also the one after that, until Roe v. Wade was no longer the law of the land.

Since the Supreme Court’s 1973 ruling protecting a woman’s constitutional right to abortion, no state has passed more restrictions on the procedure, a new national study shows: 89 and counting.

A repopulated and more conservative Supreme Court on Wednesday will consider one of those Louisiana laws, and some politicians here wonder if it might be the breakthrough they’ve been waiting for in a decades-long effort to rid the state, and the nation, of abortion.

March 2

supreme court headshots 2019

RStreet.org via Project On Government Oversight (POGO), Advocacy: Simple Reforms to Improve Transparency and Public Trust in the Federal Judiciary, Dylan Hedtler-Gaudette and Anthony Marcum, March 2, 2020. The federal courts are again under a political microscope. The impeachment pogo logo squaresaga placed Chief Justice Roberts at the heart of politics, the president recently accused the federal judge overseeing the Roger Stone case of bias and a recent congressional hearing highlighted serious harassment claims against a late circuit court judge.

At the Supreme Court, justices this term are considering a number of politically contentious topics, including the possible fate of the Deferred Action for Childhood Arrivals program, Second Amendment rights, abortion restrictions and public aid for religious schools.

The public is best served when it has access to each branch of its government. The judiciary is no exception.

Regrettably, these very public disputes are too often heard in very private forums. Many courts — including the Supreme Court — lack sufficient public access. Seating is limited. Audio of arguments is difficult to obtain. Accessing courts records is arduous and expensive. Consequently, a locked-out public is forced to rely on secondhand information about the judiciary that is often inaccurate or, worse, purposefully misleading. This sort of judicial hearsay, combined with the federal court’s resistance to greater transparency, creates unnecessary cynicism about the courts and judges themselves.

These problems are self-inflicted wounds. Congress has largely let the federal judiciary dictate its own transparency rules, with little success. But on Friday, Congress has introduced legislation designed to improve transparency and public trust in the courts. In an era of political ill will, these simple, bipartisan reforms could not come at a better time.

The legislation, titled the Twenty-First Century Courts Act, implements several commonsense changes. The first change is the simplest: The act would make it easier for the public to view important court proceedings. Under the proposed law, public appellate court hearings will have audio livestreamed on the internet. This change would have the most impact for the Supreme Court. Currently, unless you are one of the lucky few to wait in line for hours for the chance to grab a ticket to view the proceedings live, you are left only with a transcript, which is not released until later in the day. If you want to listen to Supreme Court hearings, you must wait until the end of the week when recordings are released.

It makes little sense that the highest court in the land — whose decisions cannot be appealed and impact the entire country — is also the least accountable.

Livestreamed hearings offer numerous benefits. They give the public unfiltered access to a courtroom whose decisions have the potential to affect nearly every corner of society. They would also make plain the seriousness and respect judges have for both the complex issues before them and their colleagues. These benefits would build public confidence in and understanding of the judiciary, a universally supported outcome that reflects the goal of several bipartisan reforms proposed in prior Congresses.

But appellate courts are not the only courts to see positive changes from this legislation. The bill also tackles the outdated, inefficient and costly Public Access to Court Electronic Records (PACER) system.

The current system — used by both federal trial and appellate courts — typically charges users 10 cents per page to download and view online public court filings. This paywall often prevents researchers and the public from accessing public filings. The Twenty-First Century Courts Act would make PACER free for nearly all users. It would also require the courts to update the online system to make it easier to search for documents. These changes — previously supported by members of Congress across the aisle — represent another important step to improving judicial transparency.

In addition to these long-needed transparency measures, the bill would direct the Supreme Court to write and make publicly available a code of conduct that the nine justices would abide by, similar to the Code of Conduct for United States Judges to which all other judges are accountable. Finally, the bill would modernize the financial disclosure system for federal judges by requiring that those disclosures be posted online, as the disclosures of members of Congress are, and would require brief explanations for recusal decisions made or not made by federal judges.

These measures would go a long way toward boosting public trust in the courts and, by extension, safeguarding the legitimacy of the decisions made by judges of those courts. These commonsense, pro-transparency and pro-accountability measures have the added virtue of being previously introduced through both Republican and Democratic bills as recently as the last Congress.

The public is best served when it has access to each branch of its government. The judiciary is no exception. Easier access to live hearings and publicly available court records, in addition to disclosure requirements and basic ethics rules similar to those followed by most federal judges, would go far to enhance public trust and forestall other, more drastic reforms to the federal judiciary.

February

Feb. 26

supreme court 2018 group photo cropped Custom

washington post logoWashington Post Magazine, Can the Supreme Court learn to speak up for itself? David Fontana and Christopher Krewson, Feb. 26, 2020. The judiciary is under attack. Maybe it’s time the justices finally figured out how to defend the rule of law in the court of public opinion.

Attention is the currency of our contemporary political life, and two of our three branches of government are constantly printing that currency. President Trump has tens of millions of Twitter followers; Rep. Alexandria Ocasio-Cortez and other congressional Democrats have successfully projected their voices into the public debate. For politicians in both of these branches, doing their job means speaking out — and being heard.

The third branch of the federal government, headed by the Supreme Court, has always been different. The justices are constantly speaking, but in the dry and long language of the law, a language that is hard for anyone to hear in the age of social media. There has generally been little objection to this relative silence. The legal expertise that judges bring to judging was supposed to speak for itself.

  •  Washington Post, Opinion: Trump made a baseless attack on two Supreme Court justices. Here’s why, George T. Conway III

Media, Politics & Public Health

washington post logoWashington Post, Perspective: Media outlets help Trump push a dangerous, false spin on coronavirus, Margaret Sullivan, right, March 1, 2020. Journalists margaret sullivan 2015 photoneed a new approach for tackling the president’s claims if they don’t want to be complicit in pushing propaganda.

Among the many outlandish statements President Trump has made since taking office, one in particular stands out for me.

Speaking in Kansas City, Mo., in the summer of 2018, he urged the attendees of the VFW annual convention to ignore the journalism of the mainstream media.

“Just stick with us, don’t believe the crap you see from these people, the fake news,” he said. “What you’re seeing and what you’re reading is not what’s happening.”

In other words, if you didn’t hear from me or my minions, it isn’t true.

Chico Marx memorably expressed a similar idea in the 1933 comedy “Duck Soup”: “Who ya gonna believe — me or your own eyes?”

It’s a dumbfounding notion, especially given Trump’s proven propensity for lies and falsehoods. But now as a deadly disease, the coronavirus, threatens to turn into a full-blown pandemic, it’s not simply bizarre in a way that can be easily shrugged off. It’s not just Trump being Trump.

February

Feb. 25

washington post logosonia sotomayor in scotus robe1Washington Post, Trump criticizes Sotomayor, Ginsburg in tweets, seeks their recusal from ‘Trump-related’ cases, Meagan Flynn, Feb. 25, 2020. President Trump went after Supreme Court Justices Sonia Sotomayor and Ruth Bader Ginsburg in a pair of tweets late Monday night, days after Sotomayor, right, issued a dissent critical of both the Trump administration’s legal strategy and the court’s majority for enabling it.

Tweeting just before appearing in a welcome ceremony at the Indian ceremonial president’s residence in New Delhi, Trump cited a Laura Ingraham segment on Fox News titled, “Sotomayor accuses GOP-appointed justices of being biased in favor of Trump.” He then called on Sotomayor and also Ginsburg to recuse themselves in “all Trump, or Trump related, matters!”

“Trying to ‘shame’ some into voting her way?” Trump said of Sotomayor. “She never criticized Justice Ginsberg [sic] when she called me a ‘faker'. Both should recuse themselves on all Trump, or Trump related matters! While ‘elections have consequences’, I only ask for fairness, especially when it comes to decisions made by the United States Supreme Court!"

supreme court headshots 2019

Palmer Report, Opinion: Donald Trump tips off how worried he is about what’s coming next, Bill Palmer, Feb. 25, 2020. Donald Trump is surely the world’s worst poker player. For all his erratic behavior, he can be consistently relied upon to give away what he’s really thinking. For instance, late last night he posted this Twitter thread which seems on the surface to be yet another aggressive abuse of power, but is instead actually a telltale sign of what he’s worried about most:

bill palmer report logo headerTo be clear, this is utterly deranged and profoundly corrupt on Donald Trump’s part. He’s trying to intimidate two Supreme Court Justices into recusing themselves, for no legitimate reason, in upcoming cases that involve him. Not only is this corrupt, it’s felony obstruction of justice. But it’s also, very obviously, not going to work. Sonia Sotomayor and Ruth Bader Ginsberg obviously are not going to recuse themselves. And there’s no apparatus for Trump somehow magically forcing them to do so. It simply will not happen. Now ask yourself why Trump is even trying to make it happen.

If Trump thought he had five Supreme Court votes in the upcoming cases involving his tax returns, the Mueller transcripts, and his ability to pardon himself on his way out the door, he wouldn’t be worried about trying to force any of the other four Justices to recuse themselves. Trump’s rant is a dead giveaway that he’s worried he doesn’t have five votes. He’s only confident he has four. If he could magically prompt two recusals, he would win with a 4-3 ruling. But again, unfortunately for him, he doesn’t have a magic wand. Donald Trump is clearly afraid John Roberts will vote with the liberals on this matter, which Roberts does a significant minority of the time.

John Roberts can’t be trusted to do the right thing. But Trump can’t count on him to do the wrong thing either, because Roberts instead always does the opportunistic thing. We can’t count on Trump losing these Supreme Court rulings over his fate, but Trump appears to be well aware that he can’t count on winning them either.

Howe on the Court via SCOTUSblog, Opinion analysis: Justices block cross-border shooting lawsuit, Amy Howe, Feb. 25, 2020. It has been 10 years since 15-year-old Sergio Hernandez was shot and killed by a U.S. Border Patrol agent, Jesus Mesa, while Hernandez was playing on the Mexican side of the border. The Hernandez family filed a lawsuit in federal court, seeking to hold Mesa responsible for their son’s death, but today the Supreme Court, by a vote of 5-4, ruled that the lawsuit cannot go forward.

The Hernandez family’s lawsuit contended that Mesa had used excessive force against Sergio, which violated the boy’s rights under the Fourth and Fifth Amendments to the Constitution. The family pointed to a 1971 case, Bivens v. Six Unknown Named Agents, in which the Supreme Court allowed a lawsuit seeking money damages from federal officials for violating the Constitution to go forward.

But in 2017, after hearing oral argument in the family’s case for the first time, the Supreme Court sent the case back to the lower courts for them to reconsider in light of the Supreme Court’s decision in Ziglar v. Abbasi, holding that a Bivens remedy should not be extended to a “new context” when there are “special factors counseling hesitation” and Congress has not affirmatively authorized a suit for damages. When the case went back to the U.S. Court of Appeals for the 5th Circuit, the court concluded that the Hernandez family cannot rely on Bivens to bring their claims against Mesa. The Supreme Court upheld that ruling today.

samuel alitoIn a decision by Justice Samuel Alito that was joined by Chief Justice John Roberts and Justices Clarence Thomas, Neil Gorsuch and Brett Kavanaugh, the court acknowledged that the case is a “tragic” one, but it ultimately concluded that Congress, rather than the courts, should decide whether to allow plaintiffs to seek money damages from a federal official. Alito, right, began by noting that in the nearly 50 years since the decision in Bivens, the Supreme Court has only extended Bivens twice. Not only is the extension of Bivens “a disfavored judicial activity,” Alito stressed, but the justices “have gone so far as to observe that if the Court’s three Bivens cases [had] been … decided today, it is doubtful that we would have reached the same result.”

Justice Ruth Bader Ginsburg dissented, in an opinion joined by Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan. Ginsburg would have allowed the lawsuit to go forward: “Rogue U.S. officer conduct,” she argued, “falls within a familiar, not a ‘new,’ Bivens setting. Even if the setting could be characterized as ‘new,’ plaintiffs lack recourse to alternative remedies, and no ‘special factors’ counsel against a Bivens remedy.” Ginsburg also lamented that Hernandez’s death “is not an isolated incident” and warned that “it is all too apparent that to redress injuries like the one suffered here, it is Bivens or nothing.” “I resist the conclusion,” she wrote in closing, “that nothing is the answer required in this case.”

Feb. 23

Trump Power, Payback

Axios, Exclusive: Trump's "Deep State" hit list, Jonathan Swan, right, Feb 23, 2020. The Trump White House and its allies, over the past 18 months, assembled detailed lists of disloyal government officials to oust — and trusted pro-Trump people to replace them — according to more than a dozen jonathan swan twittersources familiar with the effort who spoke to Axios.

Driving the news: By the time President Trump instructed his 29-year-old former body man and new head of presidential personnel to rid his government of anti-Trump officials, he'd gathered reams of material to support his suspicions.

While Trump's distrust has only intensified since his impeachment and acquittal, he has long been on the hunt for "bad people" inside the White House and U.S. government, and fresh "pro-Trump" options. Outside advisers have been happy to oblige.

In reporting this story, I have been briefed on, or reviewed, memos and lists the president received since 2018 suggesting whom he should hire and fire. Most of these details have never been published.

A well-connected network of conservative activists with close ties to Trump and top administration officials is quietly helping develop these "Never Trump"/pro-Trump lists, and some sent memos to Trump to shape his views, per sources with direct knowledge.

ginni thomas gage skidmore CustomMembers of this network include Ginni Thomas (shown in a Gage Skidmore photo), the wife of Supreme Court Justice Clarence Thomas, and Republican Senate staffer Barbara Ledeen.

The big picture: Since Trump's Senate acquittal, aides say the president has crossed a psychological line regarding what he calls the "Deep State." He feels his government — from Justice to State to Defense to Homeland Security — is filled with "snakes." He wants them fired and replaced ASAP.

"I think it's a very positive development," said Rich Higgins, who served on Trump's National Security Council in 2017. H.R. McMaster removed Higgins after he wrote a memo speculating that Trump's presidency faced threats from Marxists, the "Deep State," so-called globalists, bankers, Islamists, and establishment Republicans. (This was long before the full scope of the FBI's Russia investigation was known to Trump and his aides.)

Higgins told me on Sunday he stands by everything he wrote in his memo, but "I would probably remove 'bankers' if I had to do it over and I would play up the intel community role — which I neglected."

Let's get to the memos.

1. The Jessie Liu memo: Shortly before withdrawing the nomination of the former D.C. U.S. attorney for a top Treasury role, the president reviewed a memo on Liu's alleged misdeeds, according to a source with direct knowledge.

Ledeen wrote the memo, and its findings left a striking impression on Trump, per sources with direct knowledge. Ledeen declined to comment.

A source with direct knowledge of the memo's contents said it contained 14 sections building a case for why Liu was unfit for the job for which Treasury Secretary Steven Mnuchin selected her, including:

  • Not acting on criminal referrals of some of Justice Brett Kavanaugh's accusers.
  • Signing "the sentencing filing asking for jail time" for Gen. Michael Flynn (a friend of Ledeen's).
  • Holding a leadership role in a women's lawyers networking group that Ledeen criticized as "pro-choice and anti-Alito."
  • Not indicting former deputy director of the FBI Andrew McCabe.
  • Dismissing charges against "violent inauguration protesters who plotted to disrupt the inauguration."

Neither Liu nor the White House responded to requests for comment.

Between the lines: The Liu memo is not the first such memo to reach the president's desk — and there's a common thread in Groundswell, a conservative activist network that's headed by Thomas and whose members include Ledeen.

Sources leaked me details of two other memos from people associated with the Groundswell network that also caused a stir inside the White House over the past year.

Thomas has spent a significant amount of time and energy urging Trump administration officials to change the personnel inside his government. This came to a head early last year.

Members of Groundswell, whose members earlier led the successful campaign to remove McMaster as national security adviser, meet on Wednesdays in the D.C. offices of Judicial Watch, a conservative legal group that has led the fight against the Mueller probe.

Judicial Watch's president is Tom Fitton. He's a regular on Fox News, and Trump regularly retweets his commentary on the "Deep State."
Conservative activists who attend Groundswell meetings funneled names to Thomas, and she compiled those recommendations and passed them along to the president, according to a source close to her.

She handed a memo of names directly to the president in early 2019. (The New York Times reported on her group's meeting with Trump at the time.)

2. The Groundswell memo: The presidential personnel office reviewed Thomas' memo and determined that some names she passed along for jobs were not appropriate candidates. Trump may revisit some given his current mood.

Potential hires she offered to Trump, per sources with direct knowledge:

  • Sheriff David Clarke for a senior Homeland Security role.
  • Fox News regular and former Secret Service agent Dan Bongino for a Homeland Security or counterterrorism adviser role.
  • Devin Nunes aide Derek Harvey for the National Security Council (where he served before McMaster pushed him out).
  • Radio talk show host Chris Plante for press secretary.
  • Federalist contributor Ben Weingarten for the National Security Council.

What we're hearing: These memos created tension inside the White House, as people close to the president constantly told him his own staff, especially those running personnel, were undermining him — and White House staff countered they were being smeared.

3. The State Department memo: In one extraordinary incident last year, President Trump passed along another action memo to his then-head of presidential personnel, Sean Doocey (since pushed to State and replaced with former body man John McEntee). People familiar with the January 2019 memo say it came from conservatives associated with Groundswell. Though nobody I’ve spoken to has claimed credit for it.

According to sources briefed on the incident, the memo was, in large part, an attack against Doocey. The memo accused him and a colleague in the State Department of obstructionism and named several State Department officials who needed to be fired.

This list named former deputy secretary John Sullivan, deputy undersecretary for management Bill Todd, and undersecretary for political affairs David Hale, who later testified in the impeachment hearings. (Todd and Hale are career foreign service officers, serving in positions typically reserved for career officials.) Sullivan is now the U.S. Ambassador to Russia.

Feb. 18

washington post logoWashington Post, Federal judges reportedly call emergency meeting in wake of Stone case intervention, Fred Barbash, Feb. 18, 2020.
The extraordinary move follows President Trump’s tweets about the Roger Stone case and U.S. District Judge Amy Berman Jackson.
The head of the Federal Judges Association is taking the extraordinary step of calling an emergency meeting to address the intervention in politically sensitive cases by President Trump and Attorney General William P. Barr.

U.S. District Judge Cynthia M. Rufe, the Philadelphia-based judge who heads the voluntary association of around 1,100 life-term federal judges, told USA Today that the issue “could not wait.” The association, founded in 1982, ordinarily concerns itself with matters of judicial compensation and legislation affecting the federal judiciary.

On Sunday, more than 1,100 former Justice Department employees released a public letter calling on Barr to resign over the Stone case.

[More than 1,100 ex-Justice Department officials call for Barr’s resignation]

A search of news articles since the group’s creation revealed nothing like a meeting to deal with the conduct of a president or attorney general.

Justice Department log circularRufe, appointed to the bench by President George W. Bush, could not be reached for comment late Monday.

The action follows a week of turmoil that included the president tweeting his outrage over the length of sentence recommended by career federal prosecutors for his friend Roger Stone and the decision by Barr to withdraw that recommendation.

In between, Trump singled out the judge in the Stone case, Amy Berman Jackson of the U.S. District Court in Washington, for personal attacks, accusing her of bias and spreading a falsehood about her record.

“There are plenty of issues that we are concerned about,” Rufe said to USA Today. “We’ll talk all this through.”

Trump began disparaging federal judges who have ruled against his interests before he took office, starting with U.S. District Judge Gonzalo P. Curiel. After Curiel ruled against Trump in 2016 in a pair of lawsuits detailing predatory marketing practices at Trump University in San Diego, Trump described him as “a hater of Donald Trump,” adding that he believed the Indiana-born judge was “Mexican.”

djt impeachment graphic

washington post logoWashington Post, Trump raises possibility of suing those involved in prosecuting Roger Stone, John Wagner, Feb. 18, 2020. President Trump on Tuesday raised the possibility of suing those involved in prosecuting the Roger Stone case after sharing the opinion of a Fox News commentator who said it is “pretty obvious” that Stone, Trump’s longtime political confidant, should get a new trial.

Trump’s morning tweets marked his latest efforts to intervene in the case of Stone, who faces sentencing this week on charges of witness tampering and lying to Congress.

Defense lawyers for Stone demanded a new trial Friday, one day after Trump suggested that the forewoman in the federal case had “significant bias.”

Trump was referring to Tomeka Hart, a former president of the Memphis City Schools Board of Commissioners and an unsuccessful Democratic candidate for Congress. Hart has identified herself as the forewoman of the jury in a Facebook post, saying she “can’t keep quiet any longer” in the wake of a Justice Department move to reduce its sentencing recommendation for Stone from the seven to nine years recommended by front-line prosecutors.

In his tweets on Tuesday, Trump quoted at length Andrew Napolitano, a former New Jersey Superior Court judge and Fox News commentator, who argued that Stone should receive a trial based on “the unambiguous & self outed bias of the foreperson of the jury.”

“Pretty obvious he should (get a new trial),” Trump quoted Napolitano as saying. “I think almost any judge in the Country would order a new trial, I’m not so sure about Judge Jackson, I don’t know.”

Napolitano was referring to U.S. District Judge Amy Berman Jackson, who is presiding over Stone’s case and who has drawn Trump’s ire on Twitter for her treatment of another ally of his, Paul Manafort, his former campaign chairman.

In his latest tweets — which began about an hour after Napolitano appeared on “Fox & Friends” — Trump also derided prosecutors in the Stone case as “Mueller prosecutors,” a reference to those who worked for special counsel Robert S. Mueller III, who investigated possible coordination between Trump’s campaign and Russian in the 2016 presidential election.

Trump called that investigation “fraudulent,” adding: “If I wasn’t President, I’d be suing everyone all over the place. BUT MAYBE I STILL WILL.”

All four career prosecutors handling the case against Stone withdrew from the legal proceedings last week — and one quit his job entirely — after the Justice Department signaled it planned to undercut their sentencing recommendation. Two of those prosecutors had worked for Mueller.

Stone has been a friend and adviser to Trump since the 1980s and was a key figure in his 2016 campaign, working to discover damaging information on Democratic opponent Hillary Clinton.

More than 2,000 former department employees signed a public letter over the weekend urging Attorney General William P. Barr to resign over his handling of the case and exhorted current department employees to report any unethical conduct. At Barr’s urging, the Justice Department filed an updated sentencing memo suggesting that Stone should receive less prison time.

washington post logoWashington Post, Opinion: We knew what Barr would do. Now it’s too late to stop him. Annie L. Owens, Feb. 18, 2020 (print ed.). The attorney general’s radical view of the executive branch was apparent during his Senate confirmation.

Last week, Attorney General William P. Barr overruled the Justice Department’s sentencing recommendation for President Trump’s ally Roger Stone, who was convicted of lying to Congress, after the president tweeted that the original recommendation was “horrible” and “very unfair.” Barr also ordered a review of former national security adviser Michael Flynn’s prosecution — which, like Stone’s, was initiated by former special counsel Robert S. Mueller III and conducted by career Justice Department attorneys.

djt william barr doj photo march 2019These developments are the latest evidence that Barr’s loyalty to Trump threatens the Justice Department’s independence, and they have shaken the public’s faith in the rule of law.

But Barr’s attempts to politicize the Justice Department could have been stopped before they began: during his Senate confirmation. Even then, it was clear that Barr’s radical pro-executive branch worldview was contrary to Congress’s institutional interests and made Barr a dangerous pick for a president who, as Sen. Patrick J. Leahy (D-Vt.) warned, “views the Justice Department as an extension of his political power.”

A little over a year ago, I was serving as a senior counsel on the minority staff of the Senate Judiciary Committee, helping Democrats sound the alarm about Barr’s troubling record. A former head of the Justice Department’s Office of Legal Counsel (an office in which I also later served), Barr had espoused an extreme view of executive power that exalted the presidency to a position of inviolability rather than treating Congress as a coequal branch.

This theory, which the Supreme Court has never endorsed, grants the president virtually unchecked authority while seriously hamstringing Congress’s ability to hold the president accountable, including its ability to guard against political interference in law enforcement.

Annie L. Owens is a Litigator with the Institute for Constitutional Advocacy and Protection at Georgetown University Law Center. She was previously a Senior Counsel for the Ranking Member of the Senate Judiciary Committee and an Attorney-Adviser in the Justice Department’s Office of Legal Counsel.

Feb. 13

U.S. Courts / Judge Weinstein

Associated Press, Longest-serving federal judge, named by LBJ, retires at 98 today, Staff report, Feb. 13, 2020. A federal judge in New York City who was nominated by President Lyndon Johnson and who contributed to the landmark case that struck down racial segregation in public schools is retiring at age 98.

jack b weinsteinU.S. District Judge Jack Weinstein, right, was known for favoring lenient sentences and rehabilitation. He retired this week after moving his remaining cases to his fellow jurists in the federal court based in Brooklyn, The New York Daily News reported Wednesday.

He was the longest-serving incumbent federal judge, the newspaper reported. He spent nearly 53 years on the bench.

Weinstein, who was appointed in 1967, was the last federal judge named by Johnson. Weinstein said he often pushed for the shortest prison sentences possible so people could try to build a better life.

“We need to rule from a place of love, not hate,” he told the Daily News.

Weinstein moved to Brooklyn with his family when he was 5. He enlisted in the Navy after the bombing of Pearl Harbor and served on a submarine where he helped sink a Japanese cruiser.

He graduated from Brooklyn College and enrolled at Columbia Law School after World War II. He contributed research and briefs to aid future Supreme Court Justice Thurgood Marshall’s argument in the the landmark Brown v. Topeka Board of Education ruling.

In his retirement, Weinstein said he plans to spend more time with his wife, Susan Berk, and work with one of his three sons on a book about Jim Crow laws.

Feb. 12

ICE logo

Politico, Opinion: A Conservative Judge Draws a Line in the Sand With the Trump Administration, Kimberly Wehle, Feb. 12, 2020. Outraged the attorney general had ignored a court order, he authors a blistering opinion rebuking William Barr for overstepping his constitutional authority.

frank easterbrook fullPresident Donald Trump has defanged Congress’ oversight authority. That became clear when the Senate acquitted the president of obstruction. But one conservative judge isn’t willing to let the executive branch steal power from his branch of government.

In a jaw-dropping opinion issued by the 7th U.S. Circuit Court of Appeals in Chicago on January 23, Judge Frank Easterbrook, right — a longtime speaker for the conservative Federalist Society and someone whom the late Justice Antonin Scalia favored to replace him on the U.S. Supreme Court — rebuked Attorney General William Barr for declaring in a letter that the court’s decision in an immigration case was “incorrect” and thus dispensable.

Barr’s letter was used as justification by the Board of Immigration Appeals (the federal agency that applies immigration laws) to ignore the court’s ruling not to deport a man who had applied for a visa to remain in the country.

As Washington reels from the surprise withdrawals of Roger Stone‘s prosecutors, apparently triggered by Trump’s intervention in the upcoming sentencing of his long-time adviser, the Easterbrook broadside offers another window into the way the Trump administration is violating the division of power between the executive and judicial branches.

The 7th Circuit case involved an undocumented immigrant, Jorge Baez-Sanchez, who was subject to removal from the United States after being convicted of a crime.

Baez-Sanchez applied for a special visa allowing him to remain in the U.S. if he was also a victim of a crime. An immigration judge twice granted Baez-Sanchez a waiver. But the Board of Immigration Appeals reversed the immigration judge’s decision, claiming that only the attorney general personally could grant waivers — not immigration judges. Baez-Sanchez appealed to the 7th Circuit, which disagreed and remanded the case with a directive that the Department of Homeland Security comply with the immigration judge’s waiver. When it refused, Easterbrook, a 35-year veteran of the court, had had enough of the willful disregard for judicial authority.

Kimberly Wehle is a law professor, former assistant United States Attorney and author of the book, "How to Read the Constitution — And Why." JIP editor's note: Judge Easterbrook was this editor's law professor teaching antitrust at the University of Chicago School of Law, where Easterbrook has long taught law following his work as an assistant attorney general at during the 1980s in the Bush Justice Department.

Feb. 1

alan dershowitz senate hands out Custom

Palmer Report, Analysis: Donald Trump’s stooge Alan Dershowitz crashes and burns, Ron Leshnower, Feb. 1, 2020. In 1770, John Adams defended the rule of law when he made the unpopular choice to represent Captain Thomas Preston and his British soldiers for their role in the Boston Massacre. His skillful advocacy proved successful and drew praise from both sides. By contrast, Alan Dershowitz’s defense of Trump was as messy as it was shameful, amounting to nothing more than a series of recklessly bizarre utterances.

As the trial began, Dershowitz (shown above in a screenshot at the Senate) attempted to explain why he believes a crime is necessary for impeachment after insisting the opposite during President Clinton’s impeachment trial. Dershowitz baffled CNN’s Anderson Cooper and Jeffrey Toobin by insisting he wasn’t wrong then but that “I’m much more correct right now, having done all the research.” Does this mean that Dershowitz could adopt yet another position in a few years after doing even more research and still be right all three times?

bill palmer report logo headerThings got even worse for Dershowitz this week when Harvard Law School Assistant Professor Nikolas Bowie publicly scolded him for misconstruing his work, in a development that evoked a famous scene in Woody Allen’s Annie Hall. Early in that movie, Allen’s character, Alvy Singer, grows frustrated as he is forced to listen to a professor pontificating to his date about the philosopher Marshall McLuhan. Suddenly, McLuhan appears and shuts down the man, telling him, “You know nothing of my work… How you ever got to teach a course in anything is totally amazing.” Singer then remarks to the camera, “Boy, if life were only like this.”

Life was actually like this when Bowie wrote a New York Times op-ed on Tuesday calling out Dershowitz for misinterpreting his law review article and inaccurately claiming on CNN that he is “completely” on Dershowitz’s side. Bowie pointed out that while his article reflects his view that a crime is required for impeachment, common-law crimes, such as the ones that Trump has been accused of committing, also count.

All of the above was eclipsed at trial on Wednesday when Dershowitz outdid himself by offering the chilling suggestion that “if a President does something which he believes will help him get elected in the public interest, that cannot be the kind of quid pro quo that results in impeachment.” Dershowitz then rushed out his own op-ed, published Thursday by The Hill, claiming he “said nothing like that” while accusing the media of “deliberately distorting” his argument.

Dershowitz ended his disgraceful week on a runaway train off the rails, declaring to Fox News’ Sean Hannity on Friday night that if Trump wins, “nobody should regard him as having been impeached.” He accused House Speaker Nancy Pelosi of having “pulled a real sharp one” by saying that Trump will remain impeached. According to Dershowitz, Trump should not be considered impeached because “he didn’t have a fair trial.” Indeed, a trial devoid of witnesses and with “total coordination,” as Mitch McConnell put it, between defendant and jury is anything but fair. Finally, Dershowitz managed to get something right.

January

Jan. 23

washington post logoWashington Post, John Roberts comes face to face with the mess he made, Dana Milbank, Jan. 23, 2020. There is justice in John Roberts being forced to preside silently over the impeachment trial of President Trump, hour after hour, day after tedious day.

The chief justice of the United States, as presiding officer, doesn’t speak often, and when he does the words are usually scripted and perfunctory.

john roberts oOtherwise, he sits and watches. He rests his chin in his hand. He stares straight ahead. He sits back and interlocks his fingers. He plays with his pen. He takes his reading glasses off and puts them on again. He starts to write something, then puts his pen back down. He roots around in his briefcase for something — anything? — to occupy him.

Roberts’s captivity is entirely fitting: He is forced to witness, with his own eyes, the mess he and his colleagues on the Supreme Court have made of the U.S. political system. As representatives of all three branches of government attend this unhappy family reunion, the living consequences of the Roberts Court’s decisions, and their corrosive effect on democracy, are plain to see.

Ten years to the day before Trump’s impeachment trial began, the Supreme Court released its Citizens United decision, plunging the country into the era of super PACs and unlimited, unregulated, secret campaign money from billionaires and foreign interests. Citizens United, and the resulting rise of the super PAC, led directly to this impeachment. The two Rudy Giuliani associates engaged in key abuses — the ouster of the U.S. ambassador to Ukraine, the attempts to force Ukraine’s president to announce investigations into Trump’s political opponents — gained access to Trump by funneling money from a Ukrainian oligarch to the president’s super PAC.

Judicial Conflicts

American Bar Association (ABA) Journal, May federal judges be members of the ABA or the Federalist Society? Debra Cassens Weiss, Jan. 22, 2020. Draft ethics opinion says yes and no.

A draft ethics opinion advises that federal judges should not be members of the conservative Federalist Society and the liberal American Constitution Society because the affiliation raises questions about their impartiality.

But membership in the ABA’s Judicial Division “does not raise these same concerns and is not necessarily inconsistent” with the conduct code covering federal judges, the draft advisory ethics opinion says.

The draft opinion adds that judges should “carefully monitor” ABA activities to make sure their membership remains consistent with the conduct code. Judges should also consider whether a position taken by the ABA might require recusal in particular matters, the draft opinion says.

The draft opinion was posted by the National Review and covered by Law360. The opinion was drafted by the Committee on Codes of Conduct of the U.S. Judicial Conference and circulated to federal judges for review and comment.

ABA President Judy Perry Martinez issued this statement in response to the draft opinion: “The American Bar Association values our judicial members, who bring important experience and legal knowledge to our association. Their involvement in the ABA strengthens our profession and benefits all Americans who seek justice. A draft advisory opinion from the federal judiciary’s Committee on Codes of Conduct confirms that judges’ membership in the ABA can be consistent with the Code of Conduct for United States Judges. The committee opinion recognizes the ABA’s core mission is ‘concerned with the improvement of the law in general and advocacy for the legal profession as a whole.’ ”

The draft opinion considers whether membership in the three organizations is consistent with Canon 4 of the Code of Conduct for United States Judges, which states that a judge may engage in extrajudicial activities that are consistent with the obligations of judicial office.

Commentary to Canon 4 says judges should be encouraged to participate in organizations dedicated to the law to the extent that “impartiality is not compromised.”

The opinion notes that the American Constitution Society describes itself as a “progressive legal organization,” while the Federalist Society describes itself as “a group of conservatives and libertarians dedicated to reforming the current legal order.”

Membership in both groups “could convey to a reasonable person that the affiliated judge endorses the views and particular ideological perspectives advocated by the organization; call into question the affiliated judge’s impartiality on subjects as to which the organization has taken a position; and generally frustrate the public’s trust in the integrity and independence of the judiciary,” the opinion says.

The ABA, on the other hand, says its mission is to “serve equally our members, our profession and the public by defending liberty and delivering justice as the national representative of the legal profession.”

Jackie Koszczuk, a public information officer for the Administrative Office of the U.S. Courts, responded to the ABA Journal’s questions about the draft opinion process with this statement: “The judicial branch is reviewing this matter through its internal processes and is considering all viewpoints.”

The opinion notes that the ABA has taken positions on controversial issues and sometimes advocates those positions in federal court. Those positions “could reasonably be viewed to favor liberal or progressive causes” in today’s politically divisive climate, the draft opinion says.

But those positions are ancillary to the ABA’s core objectives, the draft opinion says.

The draft also notes the bylaws of the ABA’s Judicial Division, which state that its members are not deemed to endorse ABA positions that conflict with their ethics obligations.

Though membership in the ABA’s Judicial Division is not necessarily inconsistent with the ethics code, that is not to say that membership is never problematic, the opinion says.

Jan. 22

washington post logoWashington Post, Chief Justice Roberts admonishes impeachment lawyers, telling them to ‘remember where they are,’ Paul Kane and Elise Viebeck, Jan. 22, 2020. Chief Justice Roberts admonishes impeachment lawyers, telling them to ‘remember where they are’Nadler and Cipollone went off on each other. Then Chief Justice Roberts admonished both. Chief Justice John G. Roberts Jr. delivered a sharp rebuke to both House managers and lawyers for President Trump for their decorum as the impeachment trial debate passed 1 a.m. Wednesday, a marathon session that turned heated between the legal teams.

After several days of serving in a largely passive role overseeing the trial, Roberts interjected after a particularly pointed exchange between House Judiciary Committee Chairman Jerrold Nadler (D-N.Y.) and two lawyers for Trump, Pat Cipollone and Jay Sekulow.

“I think it is appropriate at this point for me to admonish both the House managers and president’s counsel in equal terms to remember that they are addressing the world’s greatest deliberative body,” Roberts said.

Nadler delivered an extended statement attacking the president and calling on the Senate to subpoena testimony from former national security adviser John Bolton. Cipollone responded by saying the New York congressman “should be ashamed … for the way you addressed this body.”

“It’s about time we bring this power trip in for a landing,” Cipollone said, prompting Sen. Ron Johnson (R-Wis.) to chuckle. “It’s a farce … Mr. Nadler, you owe an apology to the president of the United States and his family, you owe an apology to the Senate, but most of all, you owe an apology to the American people.”

Sekulow followed Cipollone and went a step further in his words and tone.

“The Senate is not on trial,” he almost shouted.

During these remarks, Nadler did not meet Sekulow’s gaze. As the White House counsel concluded, he returned to his table and threw down his papers in disgust.

The tensions rose further as Nadler responded, calling Cipollone a liar in one case. Cipollone shook his head, along with several Republican senators.

“It’s about time we bring this power trip in for a landing,” Cipollone said, prompting Sen. Ron Johnson (R-Wis.) to chuckle. “It’s a farce … Mr. Nadler, you owe an apology to the president of the United States and his family, you owe an apology to the Senate, but most of all, you owe an apology to the American people.”

Sekulow followed Cipollone and went a step further in his words and tone.

“The Senate is not on trial,” he almost shouted.

The exchange occurred as the Senate dealt with another Democratic amendment to the resolution, offered by Senate Majority Leader Mitch McConnell (R-Ky.), to set the guidelines for the trial and whether additional witnesses or documents need to be produced.

Republicans have refused to consider the witness question until both legal teams present their cases in the coming days, but Democrats have used the impeachment rules to force votes on the issue before either side formally presents its case.

As happened with every Democratic amendment offered, including this one to subpoena Bolton, the Senate rejected the request, 53 to 47, entirely along party lines.

Jan. 21

U.S. Supreme Court

washington post logoWashington Post, Religious-schools case heads to a high court skeptical of stark lines between church and state, Robert Barnes, Jan. 21, 2020 (print ed.). Schools such as Stillwater Christian in Montana are watching what could be a landmark case testing the constitutionality of state laws that exclude religious organizations from government funding.

Parents who believe religious schools such as Stillwater absolutely are the places for their children are at the center of what could be a landmark Supreme Court case testing the constitutionality of state laws that exclude religious organizations from government funding available to others. In this case, the issue rests on whether a scholarship fund supported by tax-deductible donations can help children attending the state’s private schools, most of which are religious.

Jan. 18

ny times logoNew York Times, Supreme Court to Consider Limits on Contraception Coverage, Adam Liptak, Jan. 18, 2020. The justices will weigh Trump administration regulations allowing employers to refuse to provide access to birth control on religious or moral grounds.

The Supreme Court agreed on Friday to decide whether the Trump administration may allow employers to limit women’s access to free birth control under the Affordable Care Act.

The case returns the court to a key battleground in the culture wars, but one in which successive administrations have switched sides.

In the Obama years, the court heard two cases on whether religious groups could refuse to comply with regulations requiring contraceptive coverage. The new case presents the opposite question: Can the Trump administration allow all sorts of employers with religious or moral objections to contraception to opt out of the coverage requirement?

Jan. 16

Impeachment Trial Begins

washington post logoWashington Post, Live Updates: New revelations as Senate trial is set to begin, John Wagner and Felicia Sonmez, Jan. 16, 2020. John G. Roberts Jr., chief justice of the United States, is headed to the Senate on Thursday, where he is expected to be sworn in to preside over the john roberts ohistoric impeachment trial of President Trump, focused on the president’s conduct toward Ukraine.

Roberts’s arrival is part of a day of ritual and formalities, which will also include the swearing in of senators as jurors. Senate Majority Leader Mitch McConnell (R-Ky.) has said the trial will get underway “in earnest” next week. Fallout also continued Thursday from new allegations by Lev Parnas, a former associate of Trump’s personal lawyer Rudolph W. Giuliani, that Trump knew of his efforts to dig up dirt in Ukraine that could benefit Trump politically.

Blockbuster Impeachment News

djt mike pence igor fruman lev parnas rudy giuliani Custom

Donald Trump, his attorney Rudy Giuliani, Vice President Michael Pence and operatives Igor Fruman (second from the left) and Lev Parnas (between Fruman and Trump) pose in better times for them.

 msnbc logo CustomMSNBC / Rachel Maddow Show, Lev Parnas: 'President Trump knew exactly what was going on,' Rachel Maddow, Jan. 15, 2020 (3:06 min.). Lev Parnas, an associate of Trump attorney Rudy Giuliani, talks with Rachel Maddow in an exclusive interview about the extent of Donald Trump's knowledge of the work he was doing to manipulate the president of Ukraine to help Trump smear political rival Joe Biden.

  • lev parnas rachel maddow interview jan 15 2020MSNBC, Lev Parnas (right): 'Attorney General Barr was basically on the team,' 2:19 min.

  • MSNBC, Lev Parnas remarks on role of Devin Nunes in Trump Ukraine Scheme, 2:27 min.

  • MSNBC, Shocking new evidence rocks Trump impeachment before Senate trial, 5:11 min.

  • MSNBC, Ukraine prosecutor offered dirt on Biden in exchange for firing of U.S. Ambassador, Jan. 15, 2020.

washington post logoWashington Post, Opinion: Lev Parnas and Rudy Giuliani have demolished Trump’s claims of innocence, Neal Katyal, right, and Joshua A. Geltzer neal katyal o(professors at Georgetown Law Center), Jan. 15, 2020. New documents show why the president has been trying to hide evidence from Congress. Americans who have been wondering why President Trump has taken the extraordinary step of trying to block every document from being released to Congress in his impeachment inquiry need wonder no longer.

The new documents released Tuesday evening by the House Intelligence Committee were devastating to Trump’s continuing — if shifting — defense of his Ukraine extortion scandal, just days before his impeachment trial is likely to begin in the Senate. These new documents demolish at least three key defenses to which Trump and his allies have been clinging: that he was really fighting corruption U.S. House logowhen he pressured Ukraine on matters related to the Biden family; that Hunter Biden should be called as a witness at the Senate impeachment trial; and that there’s no need for a real, honest-to-goodness trial in the Senate.

The most basic principles of constitutional law require relevant information, including documents and executive branch witnesses, to be turned over to Congress in an impeachment proceeding. Particularly because sitting presidents cannot be indicted, impeachment is the only immediate remedy we the people have against a lawless president. For that remedy to have any teeth, relevant information has to be provided. That’s why President James Polk said that, during impeachment, Congress could “penetrate into the most secret recesses of the Executive Departments … command the attendance of any and every agent of the Government, and compel them to produce all papers, public or private, official or unofficial.” No president, not even Richard Nixon, thought he could just say “no” to impeachment. That’s why the House added Article II to Trump’s impeachment: “Obstruction of Congress.” It was a response to an unprecedented attempt by a president to hide the truth.

nancy pelosi impeachment ny post cover sept 25 2019 CustomThe documents released Tuesday show what Trump has been so afraid of. For starters, they prove that his already-eyebrow-raising claim to have been fighting corruption in Ukraine was bogus. Notes taken by Lev Parnas — who is an associate of Trump’s personal lawyer Rudolph W. Giuliani and is now facing federal criminal charges — show what his and Giuliani’s mission was when they got in touch with Ukrainian President Volodymyr Zelensky: “get Zalensky to Announce that the Biden case will Be Investigated.” Look hard at the real goal here: not to prompt an investigation of Hunter Biden, but to score an announcement of a Biden investigation. Pursuing an announcement, rather than an investigation, makes sense only if Trump’s objective was to dirty the reputation of Joe Biden, a leading political rival.

Both of us served in high-ranking Justice Department positions; we’ve never heard of an investigation that is kept from the Justice Department, given to a private lawyer and then publicly announced — investigations work best when done in secret. If Trump, as he has long claimed, was truly interested in pursuing anti-corruption efforts in the bizarrely specific form of a single investigation of a single American citizen, then he would have wanted an actual investigation. Instead, he was fixated on the public announcement of one — which, if anything, would have harmed the investigation by tipping off its subject. The public announcement would have helped only one thing: Trump’s personal political prospects.

  • Palmer Report, Opinion: Lev Parnas just buried Donald Trump, Mike Pence, Rudy Giuliani, Bill Barr and more, Bill Palmer, Jan. 15, 2020.
  • Palmer Report, Opinion: Lev Parnas just pretty much forced John Bolton’s testimony to happen, Bill Palmer, Jan. 15, 2020.
  • Palmer Report, Opinion: Adam Schiff reveals the House has more up its sleeve against Donald Trump, Bill Palmer, Jan. 15, 2020.
  • Palmer Report, Opinion: Confirmed: Lev Parnas is throwing EVERYONE under the bus tonight, Bill Palmer, Jan. 15, 2020.
  • Palmer Report, Opinion: Here’s what you can expect from Rachel Maddow’s interview tonight with Lev Parnas, Bill Palmer, Jan. 15, 2020.

Roll Call, GAO: Trump’s Ukraine aid pause violated budget law, Paul M. Krawzak, Jan 16, 2020. 1974 budget law limits presidential authority to msnbc logo Customprohibit congressionally approved spending. Ukraine aid legal ruling could shake up impeachment trial..

President Donald Trump’s hold on military assistance for Ukraine last summer ran afoul of a 1974 budget law that limits presidential authority to prohibit congressionally approved spending, the Government Accountability Office said Thursday.

The finding comes as the Senate prepares to begin its impeachment trial next week. House Democrats on Wednesday transmitted to the Senate articles of impeachment leveled at Trump for alleged abuse of power and obstruction of Congress, after charging Trump with using the Ukraine aid as a bargaining chip for personal political gain.

  • Washington Post, Opinion: Impeachment descends into darkness, Dana Milbank
  • Washington Post, Opinion: Lev Parnas just accused Giuliani of a criminal conspiracy with Trump, Greg Sargent

ny times logoNew York Times, Who Will Be Left Standing in the Supreme Court? Linda Greenhouse, Jan. 16, 2020. The Trump administration is doing its best linda greenhouse thumb Customto kick plaintiffs out of lawsuits it opposes. According to the Trump administration, doctors who perform abortion are not entitled to sue on behalf of their patients, even though the Supreme Court has upheld doctors’ “third-party standing” in abortion cases since 1976 on the theory that it is impractical for a woman seeking to terminate a pregnancy to have to bring a lawsuit challenging the constitutionality of a state-created obstacle.

This is a column about standing to sue. It may seem an oddly dry choice of topic with a presidential impeachment about to get underway and the world flying apart at an even faster pace than usual. But as I hope these current examples show, standing is a crucially important component of the power of the federal courts. Judges must dismiss a lawsuit that lacks a plaintiff with standing. In the cases I’ve listed, contested questions of standing are playing out in the shadows. I want to hold them up to the light. The picture is not a pretty one. It could go far to defining the current Supreme Court term.

It’s easy to lull people into assuming that the question of standing embodies some kind of neutral principle, divorced from ideology. Courts have developed a three-part inquiry for deciding whether a plaintiff has standing, designed to ensure that a lawsuit presents the “case or controversy” that Article III of the Constitution requires for the exercise of federal court jurisdiction. Did the plaintiff suffer a real injury? Was the injury caused by the defendant? And can a victory in court actually bring relief? These questions appear to invite simple yes-or-no answers.

But a few minutes’ reflection shows that they are far from value-free, and finding the answers requires the exercise of judgment.

Jan. 13

William Barr is sworn in as U.S. Attorney General. His wife, Donald Trump and Supreme Court Chief Justice John Roberts look on

William Barr is sworn in as U.S. Attorney General. His wife, Donald Trump and Supreme Court Chief Justice John Roberts look on (White House photo).

The New Yorker, William Barr, Trump’s Sword and Shield:  The Attorney General’s mission to maximize executive power and protect the Presidency, David Rohde (an executive editor of newyorker.com and the author of In Deep: The F.B.I., the C.I.A., and the Truth about America’s ‘Deep State’, forthcoming in April, 2020), Jan. 13, 2020 (January 20, 2020 Issue). For decades, Barr has argued that Congress is a menace to the Presidency.  As Attorney General, he’s poised to fight back.

Last October, Attorney General William Barr appeared at Notre Dame Law School to make a case for ideological warfare. Before an assembly of students and faculty, Barr claimed that the “organized destruction” of religion was under way in the United States. “Secularists, and their allies among the ‘progressives,’ have marshalled all the force of mass communications, popular culture, the entertainment industry, and academia in an unremitting assault on religion and traditional values,” he said. Barr, a conservative Catholic, blamed the spread of “secularism and moral relativism” for a rise in “virtually every measure of social pathology”—from the “wreckage of the family” to “record levels of depression and mental illness, dispirited young people, soaring suicide rates, increasing numbers of angry and alienated young males, an increase in senseless violence, and a deadly drug epidemic.”

The speech was less a staid legal lecture than a catalogue of grievances accumulated since the Reagan era, when Barr first enlisted in the culture wars. It included a series of contentious claims. He argued, for example, that the Founders of the United States saw religion as essential to democracy. “In the Framers’ view, free government was only suitable and sustainable for a religious people—a people who recognized that there was a transcendent moral order,” he said. Barr ended his address by urging his listeners to resist the “constant seductions of our contemporary society” and launch a “moral renaissance.”

Donald Trump does not share Barr’s long-standing concern about the role of religion in civic life.

(Though he often says that the Bible is his favorite book, when he was asked which Testament he preferred, he answered, “The whole Bible is incredible.”)

What the two men have in common is a sense of being surrounded by a hostile insurgency.

Jan. 4

Howe on the Court via SCOTUSblog, Analysis: House, blue states ask justices to uphold Affordable Care Act, Amy Howe, Jan. 3, 2020. It has been almost eight years since a divided Supreme Court, with Chief Justice John Roberts providing the deciding vote during the middle of a presidential election, rejected a challenge to the constitutionality of the Affordable Care Act’s individual mandate – the requirement that virtually all Americans obtain health insurance or pay a penalty.

Today the House of Representatives and a group of states with Democratic attorneys general asked the Supreme Court to reaffirm that the mandate is constitutional, once again during a presidential campaign, but this time on a fast track and before review in the lower courts is completed.

In 2012, a majority on the Supreme Court rejected the federal government’s argument that Congress had the power to enact the mandate as part of its authority to regulate commerce. But in a surprise twist, Chief Justice John Roberts joined the court’s four more liberal justices in upholding the mandate on another ground: The penalty imposed on individuals who did not buy health insurance was a tax, which the Constitution permits Congress to impose.

Five years later, as part of the Tax Cuts and Jobs Act of 2017, Congress amended the ACA to set the penalty for failure to buy health insurance at zero, while leaving the rest of the act in place. That prompted two individuals and a group of states to go to federal court in Texas, where they argued that because the penalty is now zero, it can no longer be considered a tax, and the mandate is therefore unconstitutional. Moreover, they contended, without the individual mandate, the rest of the ACA is also invalid.

The federal government declined to defend the ACA, so a group of states, as well as the District of Columbia, joined the lawsuit to do so. The federal judge assigned to the case, Judge Reed O’Connor, agreed with the challengers that the mandate is now unconstitutional. And because the mandate was the “keystone” of the law, O’Connor concluded, the rest of the ACA should fall as well.

The states and the District of Columbia, joined by the U.S. House of Representatives, appealed to the U.S. Court of Appeals for the 5th Circuit, which heard oral argument in the case in July. In its decision last month, the court of appeals agreed that the mandate is unconstitutional, but it sent the case back to the district court for O’Connor to take another look at what parts, if any, of the ACA might still survive, and what Congress’ intent was when it eliminated the penalty.

Today the states and the House of Representatives filed two petitions asking the Supreme Court to weigh in on the constitutionality of the mandate immediately, as well as the ACA’s viability if the mandate is struck down, without waiting for the lower courts to act. Both petitions portray Supreme Court review as inevitable. The Supreme Court, the states note, “normally grants certiorari when a lower court has invalidated a federal statutory provision on constitutional grounds.”

But the justices need to intervene now, the states and the House emphasize, because of the “paralyzing uncertainty” about the ACA that the 5th Circuit’s decision has created.

Families will have more trouble making decisions about what jobs to take or whether to start a family based on their access to health insurance, the states and the House explain, while doubt about the future of the ACA could also affect health-insurance companies as they decide whether to offer insurance on the online marketplaces in each state and, if so, at what rates. “States,” the House adds, “must live with, and plan for, the possibility that they will lose billions of dollars in Medicaid subsidies” if the ACA is struck down. “The debilitating effects of this massive uncertainty will likely persist for years if the Court does not grant review now,” the House continues, because the case otherwise likely would not come back to the Supreme Court until 2022 – at which point the justices would consider the same questions that they are being asked to decide now.

In separate motions, the states and the House ask the justices to expedite consideration of their petitions, with the ultimate goal of having the cases – if granted – briefed and argued this term. They propose two possible briefing schedules for the petition, which are best described as short and shorter. Under one schedule, the briefs in opposition would be due on February 3; the case would be distributed to the justices on February 5; the reply brief would be filed on February 12; and the justices would consider the case at their February 21 conference, with oral argument to follow in late April or “at a special sitting in May 2020.” Under the second schedule, the briefs in opposition would be due, and the case would be distributed to the justices, on January 21; the reply brief would be filed on January 23, and the justices would consider the case at their January 24 conference, with oral argument in late April.

The states and the House also asked the justices to fast-track consideration of their motion to expedite, by directing the respondents to file any opposition to the motion by January 7 and considering the motion at their January 10 conference. The court’s response to this request could provide at least an initial hint at how the justices view the petitions by the states and the House.

 

 

 

Note: 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


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