U.S. High Courts, Cases 2020-21

 

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

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

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

 

2020-2021

January 2022 Update

Jan. 16

 

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washington post logoWashington Post, Opinion: The Supreme Court gives itself what it bans for the rest of us, Ruth Marcus, Jan. 16, 2022 (print ed.). How nice for the Supreme ruth marcus twitter CustomCourt. It can take the precautions it deems necessary to keep its workplace safe.

The court has been effectively closed to outside visitors since the start of the pandemic. Now that the justices have begun hearing oral arguments in person, the lawyers appearing before it, and the reporters in the chamber, must test negative and be masked, except when speaking. Justices who aren’t comfortable with those protocols — or with the maskless behavior of their colleagues — have the flexibility to work remotely.
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If only the court were willing to extend similar protections to the rest of us, in our workplaces. Or to be more precise, not to interfere with the Occupational Safety and Health Administration’s effort to provide such protections.

The factory workers standing cheek by jowl on assembly lines, the office workers crammed side by side at their cubicles, the cashiers and sales clerks at retail establishments — none of them enjoy the guaranteed safety protocols that the court has awarded to itself.

If their job requires that they show up in person, they are, in many states, at the mercy of their employers if their co-workers choose not to be vaccinated or to wear masks. In states with laws that prohibit vaccine and mask mandates, employers who want to adopt such policies are prohibited from doing so.

The court’s 6-to-3 ruling Thursday blocking the Biden administration’s vaccine-or-test mandate is yet another example of the elite playing by one set of rules while applying a different standard to the masses — Boris Johnson-ism, but worse. In that case, the British prime minister partied away in defiance of rules imposed on lesser mortals. In this one, the justices declined to extend the same protections to others that they grant themselves.

This let-them-breathe-covid attitude would be more understandable if the pandemic were not so serious — or the law that the administration relied on in issuing the mandate were less sweeping.

Of course, people can contract covid anywhere. But as OSHA explained in issuing the mandate, “during the workday, while under the control of their employer, workers may have little ability to limit contact with coworkers, clients, members of the public, patients, and others, any one of whom could represent a source of exposure. … OSHA has a mandate to protect employees from hazards they are exposed to at work, even if they may be exposed to similar hazards outside of work.”

OSHA estimates that its mandate, had it been allowed to continue, would have saved more than 6,500 lives and prevented more than 250,000 hospitalizations over six months.

In substituting its judgment for OSHA’s, the conservative majority noted the unprecedented nature of the mandate, which would have covered 84 million workers. “This is no ‘everyday exercise of federal power,’ ” it said, quoting an appeals court judge who voted to block the rule. “It is instead a significant encroachment into the lives — and health — of a vast number of employees. “

Jan. 14

washington post logoWashington Post, Opinion: Guantanamo’s prison stumps presidents. Biden can close it, Ramzi Kassem, Jan. 14, 2022. Quiet developments in Washington give me hope.

Twenty years ago this month, the first plane full of prisoners touched down at the U.S. Naval Station at Guantánamo Bay, Cuba. A widely circulated image showed the first 20 prisoners — Muslim men and boys, almost all of them brown- and black-skinned — kneeling on the gravel under the tropical sun in orange jumpsuits, shackles, earmuffs and blackout goggles. The picture signaled to the home audience that America was getting payback for the events of Sept. 11, 2001, and it sent a chilling message to those not “with us,” to quote President George W. Bush — those whom he deemed to be “with the terrorists.”

Two decades on, the semantic and symbolic value of Guantánamo has morphed considerably. Few public figures still proclaim the falsehood that the 779 prisoners held there over the years were “the worst of the worst.” The prison is forever tainted by confirmed accounts of torture. It’s no surprise, then, that multiple presidents have expressed the intention to close it — yet none have followed through.

I hope it will be different this time, and there are reasons to be optimistic. President Biden, who said on the campaign trail that he wanted to shutter the prison, has repatriated one detainee while quietly clearing more than a dozen of the 39 others for release through the interagency Periodic Review Board. These clearances are significant because, even though they don’t guarantee release, they flow from discussions and decisions at senior levels of the federal agencies with a stake in national security affairs, including the Departments of Defense, State, Justice and Homeland Security. Under the Trump administration, that same body issued its decisions sporadically and almost always in favor of continued detention.

The United States has long sought to exploit Guantánamo’s legal contradictions

But at the rate of one prisoner transfer per year, Biden won’t come close to shutting Guantánamo, even if he wins a second term. If he allows higher policy priorities such as the pandemic and the economy, or the fear of backlash in the upcoming midterm elections, to distract him from this important objective, he could fail just as his predecessors did, and neither our country nor the rest of the world can afford to let that happen.

Ramzi Kassem is a professor at CUNY School of Law, where he directs the CLEAR project. With his students, Kassem has represented 14 Guantánamo prisoners, with two remaining at the prison today. He is a non-resident fellow of the Quincy Institute for Responsible Statecraft and, in 2020, was named a Freedom Scholar by the Marguerite Casey Foundation.

Jan. 9

washington post logoWashington Post, Opinion: Chief Justice Roberts’s jarring vaccine jurisprudence, Ruth Marcus, right, Jan. 9, 2022. In one of the more jarring moments in ruth marcus twitter CustomFriday’s oral arguments about the Biden administration’s efforts to mitigate covid-19, Chief Justice John G. Roberts Jr. seemed to be arguing that trying to use all the statutory tools available to it somehow undermined the government’s legal argument.

“You said just a short while ago that … covid presented a grave danger to people in the workplace,” Roberts told Biden Solicitor General Elizabeth B. Prelogar, who was arguing in favor of the Occupational Safety and Health Administration’s vaccine or testing mandate. "It seems to me that it’s that the government is trying to work across the waterfront and that it’s going agency by agency.”

This is supposed to be a bad thing? I thought conservatives cared about statutory language and whether the text of the law authorized the action at issue. The chief justice is the most reasonable of the court’s conservatives, but his logic here seems upside down: The government gets marked down for trying too hard.

john roberts oPrelogar pushed back at Roberts, left. “What we’re trying to do here and what OSHA did was rely on its express statutory authority to provide protection to America’s workforce from grave dangers like this one,” she said. “So I take the point and don’t dispute that covid-19 is a danger in many contexts and falls within the jurisdiction of other agencies as well, but I think to suggest that because this disease is so prevalent, because it presents such a widespread harm, somehow OSHA has less power to do anything about it …”

At which point Roberts interrupted and showed his real hand: There’s just too much darned regulating going on here. “It sounds like the sort of thing that states will be responding to or should be and that Congress should be responding to,” he said.

Earth to chief justice. States are responding — some responsibly, too many others in precisely the wrong way, preventing employers from taking steps to protect their workers. And covid doesn’t stop at state borders; it is a national problem, amenable to national solutions under the constitutional power to regulate interstate commerce, among other authorities.

As to the role of Congress, as Prelogar pointed out, it has spoken. It created OSHA in a broadly worded law whose textual application to the situation at hand Roberts did not dispute.

Instead, he switched to another novel argument: that laws, or maybe only laws that give agencies regulatory authority, have some kind of sell-by date. “You know, that was 50 years ago that you’re saying Congress acted,” he told Prelogar. “I don’t think it had covid in mind. That was almost closer to the Spanish flu than it is to today’s problem.”

And this matters because …? The authority provided by a broadly worded statute doesn’t run out as the law ages. Laws don’t stop mattering just because they’re old. There are any number of laws giving federal agencies broad authority to regulate issues and technologies that their drafters could scarcely have imagined

Jan. 8

 

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

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

washington post logoWashington Post, Opinion: How blocking Biden’s vaccine mandate would be a Supreme Court gift to Trump, James Hohmann, Jan. 8, 2022. When Donald Trump took office five years ago, White House chief strategist Stephen K. Bannon vowed that the new president would wage an unending battle for the “deconstruction of the administrative state.”

The Supreme Court’s apparent readiness to block President Biden’s vaccine mandate for large companies, which will otherwise go into effect Monday, underscores the likelihood that Trump’s legacy, by remaking the judiciary, will include declawing the federal bureaucracy and hollowing out its regulatory authorities.

In 1970, Congress passed — and President Richard M. Nixon signed — the law creating the Occupational Safety and Health Administration (OSHA). This was 52 years after the flu pandemic of 1918. Coincidentally, it was also 52 years before the Supreme Court heard oral arguments on Friday on whether that agency has the power amid another once-in-a-century pandemic to require vaccinations at U.S. businesses with more than 100 employees.

The six conservative justices, including the three nominated by Trump, sounded skeptical of what they portrayed as the Biden administration’s over-reliance on that 1970 statute, which didn’t explicitly envision the need for vaccine mandates, to enact a requirement that would affect 80 million workers. Justice Samuel A. Alito Jr. suggested, for example, that Biden is “trying to squeeze an elephant into a mouse hole.”

Justice Neil M. Gorsuch said that states and Congress, as the most direct representatives of the people, must decide whether they want to compel vaccination. Gorsuch, who didn’t wear a mask on the bench on Friday, emphasized that Congress has had more than a year to pass a law requiring vaccinations, without doing so. On the other hand, multiple red states have banned employers from mandating vaccination.

Justice Brett M. Kavanaugh noted that people warned of a pandemic for years and said the legislative branch chose not to prepare by passing laws that would have given more powers to address the current crisis.

Justice Amy Coney Barrett suggested that the Biden administration’s requirements should have been more narrowly tailored to specific industries or types of jobs. Barrett predicted covid-19 will still be with us two years from now and wondered: “When does the ‘emergency’ end?”
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Solicitor General Elizabeth B. Prelogar, representing the Biden administration, told the justices that they are wrong to pretend Congress must renew authorities that have already been deferred to the executive branch, in this case to protect workers from “grave risk.” Covid “is the biggest threat to workers in OSHA’s history,” Prelogar said.

This gets to the nub of a deeper ideological dispute that reflects how the court is changing. It involves a lot more than OSHA or the polarized politics of vaccination. The unusual 3½ hours of arguments felt like the culmination of a multi-decade effort to tie the hands of a range of career civil servants inside alphabet-soup agencies such as the Environmental Protection Agency.

“Those numbers show that omicron is as deadly and causes as much serious disease in the unvaccinated as delta did. … We have over 100,000 children, which we’ve never had before, in serious condition and many on ventilators.”

— Justice Sonia Sotomayor, during oral argument at the Supreme Court, Jan. 7

washington post logoWashington Post, Fact Checker Analysis: Sotomayor’s false claim that ‘over 100,000’ children are in 'serious condition’ with covid, Glenn Kessler, Jan. 8, 2022. Several readers questioned these remarks by Sotomayor, made during a hearing on whether the Biden administration’s nationwide rules ordering a vaccination-or-testing requirement on large employers were constitutional. Her remarks came during an exchange with Ben Flowers, Ohio’s solicitor general, as he referred to a brief filed by the American Commitment Foundation, which argued that the rise of the omicron variant had made the vaccine rules less relevant because vaccines do not appear especially effective against it.

(We will not address remarks made by Justice Neil M. Gorsuch, which some readers also thought were wrong. The official court transcript suggested he had made an inflated statement about the annual flu: “Flu kills — I believe — hundreds of thousands of people every year.” The flu kills between 12,000 and 52,000 people in the United States a year, but the audio of the argument shows Gorsuch actually said that “flu kills, I believe, hundreds, thousands of people every year.” So the transcript is incorrect.)

sonia sotomayor in scotus robe1The brief in question sought to update the court on latest scientific and technical information on the omicron variant, as that had emerged with force after the mandate was proposed. Epidemiologists Jay Bhattacharya of Stanford University and Andrew Bostom, who says he is affiliated with Brown University, helped advise on it.

That’s wildly incorrect, assuming she is referring to hospitalizations, given the reference to ventilators. According to HHS data, as of Jan. 8 there are about 5,000 children hospitalized in a pediatric bed, either with suspected covid or a confirmed laboratory test. This figure includes patients in observation beds. So Sotomayor’s number is at least 20 times higher than reality, even before you determine how many are in “serious condition.”

Moreover, according to the Centers for Disease Control and Prevention, there have been less than 100,000 — 82,843 to be exact — hospital admissions of children confirmed with covid since Aug. 1, 2020.

Still, the current seven-day average (Dec. 30-Jan. 5) is 797, which is a sharp increase from the week before (441) and represents the peak seven-day average for children, the CDC said. So Sotomayor is not wrong to suggest the rate of pediatric admissions is cause for concern. On Monday, the American Academy of Pediatrics reported a sharp rise in pediatric cases, with many of the children unvaccinated. (Some children are hospitalized for other reasons and then test positive for covid through screenings at the hospital.)

It’s important for Supreme Court justices to make rulings based on correct data. There has been a spike in pediatric cases with covid, even if the omicron variant appears less deadly. But Sotomayor during an oral argument offered a figure — 100,000 children in “serious condition … many on ventilators” — that is absurdly high.

Jan. 7

washington post logoWashington Post, Supreme Court’s conservatives seem skeptical of workplace vaccination rules, Robert Barnes and Ann E. Marimow, Jan. 7, 2022. The justices heard Republican-led challenges to White House policies affecting nearly 100 million people.

Conservative Supreme Court justices on Friday appeared skeptical that the Biden administration has legal authority to impose a broad vaccination-or-testing requirement on large employers, casting doubt on President Biden’s most ambitious plan to fight the pandemic.

But there was a different reaction to the administration’s vaccine mandate for health-care personnel that receive federal Medicaid and Medicare funds. Some of the justices who expressed doubt about the general workplace requirements seemed more receptive to the idea that health-care workers could be required to get vaccinated.

The court’s decision could come quickly — it is considering emergency petitions to either allow the regulations to go into effect or stop them.

The court spent three and half hours in a highly unusual hearing on the emergency requests. The workplace rule is proposed by the Occupational Safety and Health Administration (OSHA) and would cover about 80 million workers. The other would cover about 17 million health-care workers.

washington post logoWashington Post, Opinion: Where was Justice Neil Gorsuch’s mask?, Ruth Marcus, right, Jan. 7, 2022. Where was Justice Neil M. Gorsuch’s mask? If you ruth marcusthink this sounds like a trivial question, I dissent. I believe it goes to the heart of our fraying social fabric.

When the Supreme Court justices took their seats Friday morning to hear oral arguments in two cases challenging the Biden administration’s covid rules, seven of the justices wore masks — a change in their previous behavior prompted, no doubt, by the emergence of an new infectious strain.

One justice, Sonia Sotomayor, who had previously been the only justice to wear a mask on the bench, participated remotely from her chambers. Sotomayor has diabetes, which is a risk factor for more severe illness with covid. She also is, or would have been, Gorsuch’s seat mate for the nearly four-hour-long argument session.

neil gorsuch headshotThe court, having resumed in-person arguments, retains strict limits on who can attend and strict rules for those allowed inside the chamber. Reporters and lawyers must wear masks — N95 masks, not the less-effective cloth variety — and test negative for covid. In fact, two of the lawyers who argued against the Biden administration’s vaccine mandates had to do so remotely after testing positive. And instead of being crammed cheek by jowl in the press section, reporters, along with the justices’ law clerks, are spaced throughout the otherwise-empty chamber.

These rules and practices all make sense for the court (where five justices, including Sotomayor, are over 65) and for the public. Indeed, they offer a model for responsible workplace behavior in an age of omicron.

Which brings me to the question: Where was Gorsuch’s mask?

I put that question to the court’s public information office. No response to that, or to a question about whether Gorsuch’s masklessness had something to do with Sotomayor’s decision to absent herself.

But Mike Davis, Gorsuch’s former law clerk, as well as founder and president of the Article III Project, which lobbied to confirm President Donald Trump’s judges, responded this way on Twitter: “Every justice is vaccinated and boosted. Don’t vaccines work? We know cloth masks don’t.”

Oh, please. Yes, vaccines work. They protect against serious illness and greatly reduce the risk of hospitalization and death. They work less well, given the contagiousness of the omicron variant, to prevent breakthrough infections.

Wearing a mask is the decent thing to do — especially when you are around vulnerable individuals. This is true even if it is not required, as it would be if Gorsuch, above, were to pop into the grocery store to pick up some milk on his way home, or if he were to be in an ordinary workplace in the District.

The sad part here is that Gorsuch is more emblem than outlier. The pandemic has brought out the best in some of us, but the worst — the most selfish and irresponsible — in too many others. This “you’re not the boss of me” immaturity has made a difficult period even harder.

Jan. 1

 

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washington post logoWashington Post, Roberts says federal judiciary has some issues but doesn’t need congressional intervention, Robert Barnes, Jan. 1, 2022 (print ed.). In his year-end report, Chief Justice John G. Roberts Jr. acknowledged concerns about ethical conflicts among judges and workplace discrimination within the judiciary.

john roberts oChief Justice John G. Roberts Jr., right, acknowledged in a report released Friday that the federal judiciary has work to do in ensuring that judges live up to their ethical responsibilities and in creating a harassment-free workplace.

But he politely told Congress it is work that judges can do on their own.

In his 2021 Year-End Report on the Federal Judiciary, the chief justice did not mention President Biden’s commission on reforming the Supreme Court or react to nascent congressional proposals to make drastic changes, such as expanding the number of justices or ending their lifetime tenure.

But he said the judiciary’s independence is best maintained by remaining free of interference from the political branches.

“The Judiciary’s power to manage its internal affairs insulates courts from inappropriate political influence and is crucial to preserving public trust in its work as a separate and co-equal branch of government,” Roberts wrote.

In the report, Roberts addressed “topics that have been flagged by Congress and the press over the past year.” Those included the failure of some judges to recuse themselves from cases in which they had a financial interest, and concerns about how the judiciary handles allegations of workplace harassment and discrimination.

Roberts referred to articles in the Wall Street Journal that said “between 2010 and 2018, 131 federal judges participated in a total of 685 matters involving companies in which they or their families owned shares of stock.”

He said that was “inconsistent” with a federal ethics statute that requires a judge to recuse in any matter in which he or she knows of a personal financial interest.

“Let me be crystal clear: the Judiciary takes this matter seriously,” Roberts wrote. “We expect judges to adhere to the highest standards, and those judges violated an ethics rule.”

But, he said, in context, that meant the judiciary had a “99.97% compliance rate.”

“For most of the judges involved (a total of 83 of the 131), the Journal reported one or two lapses over the nine-year period,” Roberts wrote. “Those sorts of isolated violations likely entailed unintentional oversights in which the judge’s conflict-checking procedures failed to reveal the financial conflict.”

Roberts said congressional intervention was not needed. The Judicial Conference and the Administrative Office of the U.S. Courts will dedicate themselves in the coming months to increasing ethics training for judges and researching new computer programs to detect potential conflicts in the cases that come before judges.

“The bottom line is that the Conference is taking the concerns seriously and has committed itself to the careful labor of addressing them,” he wrote. The Journal reported that Roberts said he had “serious constitutional concerns” about proposed accountability legislation in 2018.

Roberts defends colleagues on recusal issues

Supreme Court justices are not covered by the same ethics policies, although the justices have said they voluntarily comply with them. Roberts is one of three justices — Stephen G. Breyer and Samuel A. Alito Jr. are the others — who own individual stocks. They recuse from cases, or sometimes sell the stock in order to participate, but they too have missed some cases.

The chief justice also acknowledged concerns about how the federal judiciary handles allegations of harassment and discrimination. He detailed steps that the judiciary’s leaders have taken to improve its reporting system, including the expansion of the Office of Judicial Integrity and the hiring of workplace relations directors in each of the federal circuits.

 

December

Dec. 31

 

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

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

ny times logoNew York Times, Opinion: Do We Have the Supreme Court We Deserve? Linda Greenhouse (shown at right on the cover of her memoir), Dec. 31, 2021 (print ed.). When I left the daily Supreme linda greenhouse cover just a journalistCourt beat back in 2008, the Week in Review, as The Times’s Sunday Review section was then called, invited me to offer some reflections on nearly 30 years of writing about the court, its cases and its members. The long essay ran under the headline “2,691 Decisions,” a number based on an editor’s calculation of how many decisions the court had issued during my time on the beat. I ended it with an observation about the “vital dialogue” between the court and the country. This was my conclusion:

“The court is in Americans’ collective hands. We shape it; it reflects us. At any given time, we may not have the Supreme Court we want. We may not have the court we need. But we have, most likely, the Supreme Court we deserve.”

A friend who recently came upon that article challenged me. “Do you still think we have the Supreme Court we deserve?” she asked.

Actually, sadly, my answer now is no.

It’s not that I think the country simply deserves a Supreme Court that happens to agree with me; I was finding plenty to disagree with back in 2008. Justice Samuel Alito had taken Justice Sandra Day O’Connor’s place in early 2006, wrenching the closely divided court to the right. In June 2007, Justice Stephen Breyer, during an impassioned oral dissent in a highly charged case on what measures public school systems can take to maintain racial diversity, lamented that “it is not often in the law that so few have so quickly changed so much.”

Nonetheless, Justices John Paul Stevens, Anthony Kennedy and David Souter were still on the bench in 2008, proving every day that to be a Republican-nominated Supreme Court justice was not necessarily to be a handpicked conservative spear-carrier in the country’s culture wars. (The three were chosen by Gerald Ford, Ronald Reagan and George H.W. Bush respectively.) It had not occurred to anyone then that a hostile Senate in 2016 might keep a president’s Supreme Court nomination bottled up for 11 months without even a hearing, nor that a supine Senate would do a subsequent president’s bidding four years later and bludgeon a nomination through to confirmation while millions of Americans were already casting early ballots for president.

In short, we are in a different place now than we were in 2008, and the current term finds the court in a danger zone as a willing — and willful — participant in a war for the soul of the country. Last term’s cavalier treatment, in a case from Arizona, of what remains of the Voting Rights Act sent a frightening signal about whether the court can be counted on to protect democracy from the Republican-led assault now taking place before our eyes. We now have justices apparently untroubled by process and precedent, let alone appearances: Let’s not forget that two of Donald Trump’s three appointments arrived under debatable circumstances, with Justice Neil Gorsuch taking a seat in 2017 that was Barack Obama’s to fill and Justice Amy Coney Barrett being jammed through to confirmation late in 2020.

washington post logoWashington Post, Opinion: Mitch McConnell’s un-conservative plea to the Supreme Court, Ruth Marcus, right, Dec. 31, 2021 (print ed.). Spare me the ruth marcusRepublican pieties about the horror of activist judges legislating from the bench. These days, judicial activism in the service of conservative causes is not just acceptable — it’s openly encouraged. Witness a new Supreme Court brief from Senate Minority Leader Mitch McConnell (R-Ky.).

The brief comes in a case involving Sen. Ted Cruz (R-Tex.), challenging an obscure provision of federal election law that bars candidates who lend their campaigns funds to get elected from raising more than $250,000 after the election to pay themselves back — the theory being that post-election fundraising is less about engaging in political speech and more about currying political favor.

The day before his 2018 Senate election, Cruz lent his campaign $260,000 — not because it needed the money (it had more than $2 million cash on hand) but because, he openly acknowledges, he wanted to set up a challenge to the repayment provision. Cruz argues that the law violates the First Amendment, stifling candidates’ political speech by deterring them from lending to their own campaigns.

The Federal Election Commission, defending the provision, contends that Cruz has no standing to contest it because, among other things, he created the problem himself. “Senator Cruz’s injury is self-inflicted, since he and his campaign deliberately arranged their transactions so as to create a legal barrier to full repayment of the loan,” Solicitor General Elizabeth Prelogar told the court. In any event, she said, “the loan-repayment limit imposes at most a modest burden on the right to make and accept contributions.”

The case, to be argued Jan. 19, offers a particularly vivid illustration of the conservative mania to undo even the most inoffensive campaign finance restrictions. But the McConnell brief, authored by former Trump White House counsel Donald McGahn and former Trump administration solicitor general Noel Francisco, is notable for a different and more alarming reason: There is, it seems, no argument too extreme for this crowd in their effort to reshape the law to their liking.

They urge the court to use this case not simply to strike down the loan repayment provision but also to junk what is left of the 2002 Bipartisan Campaign Reform Act (BCRA), also known as McCain-Feingold. Encouraging the court to en

Dec. 30

 

ghislaine maxwell jeffrey epstein porchSex trafficking defendant Ghislaine Maxwell, right, in an undated photo with her onetime lover and boss Jeffrey Epstein (Photo submitted to jury by U.S. Department of Justice).

vicky ward investigates

Vicky Ward Investigates, Maxwell Unfiltered: The Full Transcript from My 2002 Interview with Ghislaine Maxwell, Vicky Ward, Dec. 30, 2021. Vicky Ward, shown above, is a journalist working at the intersection of power, money and corruption. She has been a New York Times bestselling author, is working on her fourth book and is host and reporter of "Chasing Ghislaine" streaming on Audible / Discovery.

So, it’s over. This chapter of the Jeffrey Epstein saga, at least. Ghislaine Maxwell has been convicted on five counts out of six charges that constitute hideous sex crimes against children. She was reportedly emotionless as she heard the verdict. The mystery is what is going on inside her head.

We never got to hear from Maxwell herself this whole trial. Her defense’s strategy was to undermine the credibility of the accusers, not to explain her narrative.

So I went back and looked over the transcript of my 2002 interview with Maxwell about Maria and Annie Farmer, the latter who so bravely testified a couple of weeks ago. It was the one and only conversation I had with her on the topic of Annie and Maria Farmer.

It’s very revealing because it tells us—in her own words—who Maxwell really is and what she values. (It also shows that she lied to me about not giving Annie Farmer a massage.)

Here, for the first time, is our conversation, which was transcribed from micro-cassettes by a professional transcription service. The only redaction is the name of an employee who worked at Zorro Ranch, Epstein’s home in New Mexico.

WARD: Hi.

MAXWELL: Hi. Listen, I just got faxed something from the fact checker at Vanity Fair...the implication of which is so outrageous and disgusting to me that I cannot understand for the life of me why you would put something like that in it and not even [Overlap/Inaudible]

....

MAXWELL: Okay. Terrific. Bye.

WARD: Okay. Bye.

So, there you have it—in full, just as Maxwell insisted.

Her false denials condemn her almost as much as the credible testimony of Annie Farmer, which I believed then as now and which was entitled to be told, and all the others.

After my call with Maxwell, I submitted the story to my bosses at Vanity Fair—with the Farmers' description of events and a general denial from Epstein and Maxwell included. I did my journalistic duty: telling both sides of this ugly story. As I was taught from Day 1, journalism lets the readers to decide.

But Vanity Fair had other plans.

There was no subsequent conversation between Maxwell and myself because, shortly after my interview with the Farmer sisters and the follow-up with Maxwell, Epstein paid a visit to Graydon Carter at the Vanity Fair offices, and the Farmers’ allegations were cut from my article and a subsequent blog—to my eternal regret. I have felt deeply for the Farmers ever since. (Carter has said I didn’t have sufficient reporting. I disagree.)

But what this conversation shows is Maxwell’s entitlement—and her belief that money trumps all. It was “crazy” that I could believe strangers over her and report the on-record allegations. It was also outrageous to think she would have time to give people massages. And how lucky these two girls were to benefit from Epstein’s generosity.

Right there, in this conversation is everything you need to know. This is the narrative that was missing from the courtroom these past weeks, but it does validate the jury’s verdict.

“Use your common sense,” AUSA Maurene Comey had told the jury during her closing arguments.

Apparently, they did.

Vicky Ward's documentary series “Chasing Ghislaine” (based on her Audible podcast of the same name) started streaming on discovery+ on November 22nd and has been be available on DiscoveryID since Dec. 3. She has been a senior reporter at CNN, the editor at large of HuffPost and HuffPost’s long-form magazine, Highline, as well as at Town & Country magazine. I was also a contributor to Esquire, a contributing editor to Vanity Fair for eleven years, and a columnist for the London Evening Standard. In June 2020, she joined the Council on Foreign Relations. Her most recent book — Kushner, Inc.: Greed. Ambition. Corruption. The Extraordinary Story of Jared Kushner and Ivanka Trump (St. Martin’s Press, 2019) — was an instant New York Times bestseller.

Dec. 29

 

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

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

washington post logoWashington Post, Opinion: The Supreme Court must uphold Biden’s vaccine mandates — and fast, Lawrence O. Gostin, Jeffrey E. Harris and Dorit Rubinstein Reiss (prominent professors), Dec. 29, 2021.

President Biden’s emergency covid-19 mandates have faced an avalanche of legal challenges. Two of those mandates — the Occupational Safety and Health Administration’s rule that businesses with 100 or more employees must require workers to be fully vaccinated or regularly tested and the Centers for Medicare and Medicaid Services’ regulation requiring vaccinations for staff at health-care facilities — will soon face scrutiny from the Supreme Court.

The Supreme Court needs to uphold the president’s mandates without delay. Not doing so would be an affront to public health and the law.

Lower-court rulings that blocked the rules from taking effect were fundamentally flawed. (The president’s executive order requiring federal contractors to have a fully vaccinated workforce is currently blocked by courts in Kentucky and Georgia, but is not yet before the Supreme Court). They disregarded the broad scientific consensus that covid-19 poses a major public health threat requiring a strong emergency response; indeed, the public health emergency has only become more acute in recent weeks. The omicron variant is rising exponentially across the nation, pushing the hospital system beyond its capacity. More than 1,400 Americans are dying every day from covid-19. The justices need to weigh this grim reality.

A threshold issue is whether covid-19 is a public health emergency that warrants bypassing the usual cumbersome regulatory process. For the employer mandate, OSHA issued an emergency standard which can be implemented rapidly. For the rule involving health-care workers, CMS waived the normal period for taking public comment into consideration before issuing final regulations, a process that can take months if not years. Both had good reason for acting swiftly.

OSHA conservatively estimated its new rule would prevent more than 6,500 deaths and 250,000 hospitalizations. CMS established an impressive record showing the unique vulnerability of Medicare and Medicaid recipients, who are older, disabled, chronically ill or have complex health-care needs. The rule can save hundreds of lives each month. The science is also clear that the vaccine is the best way to ameliorate risks of covid-19 infections, hospitalizations and deaths. Delaying the implementation of the rules would cost lives.

At the core of these cases is the claim that Congress has not clearly authorized OSHA and CMS to safeguard workers. That’s incorrect. The Occupational Safety and Health Act empowers OSHA to mitigate “grave” workplace dangers through emergency measures. OSHA has required the only effective tools known to science: vaccines, testing and masks. Vaccination is the best tool, but OSHA allows employees to opt-out simply by testing weekly and masking. It’s hardly an overreach. In fact, regulating biological hazards is among OSHA’s primary responsibilities. The agency has a long history of regulating protections against airborne and bloodborne pathogens.

Likewise, when Congress established the Medicare and Medicaid programs, it granted the secretary of health and human services authority to require facilities to meet requirements deemed “necessary in the interest of the health and safety.” There are ample reasons to support the conclusion that vaccinations are necessary for the safe operation of participating facilities: the vulnerability of residents, the need for a healthy workforce and the unique effectiveness of vaccines.

There are good reasons Congress has chosen to delegate broad regulatory powers to agencies. Congress cannot foresee the broad range of risks Americans will face. Nor does Congress have the expertise or access to rapidly changing and complex scientific information needed to make wise regulatory decisions. Career agency professionals have the expertise — and can act more quickly with more flexibility — than the legislative process allows. The need to act rapidly is especially important in a health emergency. If the high court were to curb federal public health powers now, it could prove ruinous when the next crisis strikes.

The Supreme Court has a long history of upholding vaccination mandates, beginning with its seminal 1905 decision upholding smallpox vaccination and continuing with its 1944 ruling on the lawfulness of childhood vaccinations for school entry. Recently, the Supreme Court let stand a New York coronavirus vaccine mandate for health-care workers, even though it provided no religious exemption.

But these are all municipal or state mandates, and the court has been far more reticent to uphold federal health powers — for example, striking down the Centers for Disease Control and Prevention’s covid-19 eviction moratorium. The CDC arguably overreached with the moratorium, but regulating workplace safety is core to OSHA’s mission, as is regulating health-care safety to CMS.

A dire emergency is not the time to overturn decades of jurisprudence empowering federal agencies to act in the public interest. Justices should defer to the judgment of agency professionals, which represents the unquestioned scientific consensus. Vaccines offer the best, possibly the only, way to curtail the covid-19 pandemic.

Lawrence O. Gostin, a professor at Georgetown University and director of the World Health Organization Collaborating Center on National and Global Health Law, is author of “Global Health Security: A Blueprint for the Future.” Jeffrey E. Harris is emeritus professor at the Massachusetts Institute of Technology and practicing physician at Eisner Health, a community health center in Los Angeles. Dorit Rubinstein Reiss is a law professor at University of California, Hastings College of the Law.

Dec. 28

washington post logoWashington Post, Supreme Court term limits are popular — and appear to be going nowhere, Seung Min Kim and Robert Barnes, Dec. 28, 2021. President Biden’s commission to study structural revisions to the Supreme Court found one potential change both Democrats and Republicans have said they could support: implementing term limits for the justices, who currently have lifetime tenure.

Yet the bipartisan support among legal experts and the public for term limits isn’t catching on among elected officials on Capitol Hill who would be the starting point on any alterations to the makeup of the Supreme Court. Impatient liberals clamoring for change say enacting term limits would take far too long, while Republican lawmakers are loath to endorse changes they are characterizing as part of a broader effort from Democrats to politicize the judiciary.

The opposition from both corners adds another layer of doubt that proposals laid out and debated by Biden’s Supreme Court commission will translate into tangible action in the near future.

The chief argument against term limits among Democratic lawmakers and others who have endorsed structural changes is that doing so may require a constitutional amendment — a process that is long, cumbersome and has not been successfully executed since 1992.

“It takes years to work through the state legislatures,” Sen. Elizabeth Warren (D-Mass.) said in an interview. “We don’t have years when the Supreme Court is gutting voting rights, gutting union rights, gutting the equal protection clause and signaling that it’s going to overturn Roe.”

Warren is the most recent convert in the Senate in favor of Supreme Court expansion, one of only a few Democrats there who have explicitly endorsed structural changes to the court even as the recent oral arguments in Mississippi’s abortion ban have prompted many to reconsider their stance. In an op-ed in the Boston Globe this month, Warren argued that Republican maneuvering has essentially packed the Supreme Court in their favor, and that adding justices is necessary to rebalance it. Increasing the number of justices could be done through a statute, a far simpler process than passing an amendment.

Dec. 27

CovertAction Magazine, Investigative Commentary: Sex Crimes of the CIA — Unreported, Unrepented, and Unpunished, John Kiriakou, right, Dec. 27, 2021. The john kiriakouCIA rivals the Vatican in covering up sex crimes against children and then protecting the members of its organization who commit them.

Buzzfeed reported early this month that, in response to a Freedom of Information Act lawsuit, the CIA revealed that 10 employees and a contractor had committed sex crimes against children—but only one was ever charged with a crime.

Considering how well the CIA knows how to cover up what it does not want to be known, we may reasonably speculate that those crimes represent only the tip of an iceberg—and I say this as someone who served 15 years in the CIA.

The evidence that the CIA released to Buzzfeed in response to a Freedom of Information Act lawsuit shows that the 10 employees and one contractor committed crimes including child rape, the purchase of violent child pornography, and viewing as many as 1,400 photos of nude children on a CIA CIA Logocomputer while overseas on a work assignment.

The contractor had arranged to have sex with an undercover FBI agent who he thought was a child. The only CIA officer prosecuted for child sex crimes had also mishandled classified information. Four of the other accused employees and the contractor were fired, four were “disciplined administratively,” and the status of one is unknown.

Let’s be clear about these crimes.

These were not “he said, she said” allegations. They were serious sex crimes against children.

The Buzzfeed information, which includes both internal CIA documents and a declassified Inspector General’s report, say that besides the contractor, CIA officers admitted to, “using a government laptop to view photographs and videos of girls as young as 10 being abused by an older guy;” having sexual contact with two girls, ages two and six, and downloading illicit photos of other children; downloading 63 videos of sex between adults and children between the ages of 8 and 16; and distributing lewd photos and videos of children to other pedophiles.

One CIA officer told investigators that he “did not know it was a violation of Agency policy to access child pornography.” He was not prosecuted.

For its part, the Justice Department elected to do practically nothing, notwithstanding a statement to Buzzfeed that, “The occupation or employer of the Justice Department log circularsuspect does not factor into that evaluation” (of whether or not to prosecute.) “While we cannot comment on the reasons why specific cases were declined, we do take very seriously any allegation that our prosecutors declined a potential case based on an improper assessment of the relevant factors.”

That’s nonsense. The truth is that the Justice Department was afraid of graymail. That’s the threat of a CIA officer on trial “accidentally” saying something classified or something that compromises sources and methods. It’s not worth the risk to the CIA to prosecute most cases. And the bottom line is that the CIA doesn’t care one whit about the children.

I spent 15 years at the CIA. It is a highly-sexualized environment full of type A personalities, sociopaths, and psychopaths. We had an old joke that, when you went into a meeting, you should never touch the conference room table because you didn’t know who was having sex on it the night before.

There was one incident in a war zone overseas while I was there where CIA officers were passing around to each other a sexually-transmitted disease unique to the CIA. A CIA doctor had to fly to the country to tell them to stop and to remind them to practice safe sex.

Further afield, it was a common occurrence for CIA case officers developing foreign officials for recruitment to offer them trips to southeast Asia, where both could partake of prostitutes and indulge in whatever sexual fantasies they had.

I note in my first book, The Reluctant Spy: My Secret Life in the CIA’s War on Terror, that one of my senior bosses, with whom I had had a dispute, tried to lighten the mood by telling me to take some money out of petty cash to pay for oral sex. I declined, angrily.

Case officers get promoted for recruitments and for the development of classified information. They don’t care about human trafficking. They don’t care about prostitution. And as it turns out, they don’t even care about abused children.

It’s accurate to say that I was “shocked but not surprised” when I read the Buzzfeed allegations.

All Americans should be sickened by them. I know that I sound like a broken record when I ask, “Where is the Congressional oversight?”

Why aren’t there hearings or investigations about child sex crimes at the CIA? Why aren’t the House and Senate Judiciary Committees investigating why the U.S. Attorneys refuse to take up the cases? Why are children not being protected?

It’s easy enough to say that we get the government we deserve. But somebody has to stand up for children. The CIA won’t do it. The Justice Department apparently won’t. Now that the cat is out of the bag, where do we go next?

John Kiriakou, right, was a CIA analyst and case officer from 1990 to 2004. In December 2007, John was the first U.S. government official to confirm that john kiriakouwaterboarding was used to interrogate al-Qaeda prisoners, a practice he described as torture. Kiriakou was a former senior investigator for the Senate Foreign Relations Committee and a former counter-terrorism consultant. While employed with the CIA, he was involved in critical counter-terrorism missions following the terrorist attacks of September 11, 2001, but refused to be trained in so-called “enhanced interrogation techniques,” nor did he ever authorize or engage in such crimes.

After leaving the CIA, Kiriakou appeared on ABC News in an interview with Brian Ross, during which he became the first former CIA officer to confirm the existence of the CIA’s torture program. Kiriakou’s interview revealed that this practice was not just the result of a few rogue agents, but was official U.S. policy approved at the highest levels of the government.

Kiriakou is the sole CIA agent to go to jail in connection with the U.S. torture program, despite the fact that he never tortured anyone. Rather, he blew the whistle on this horrific wrongdoing.

Dec. 24

washington post logoWashington Post, Opinion: Supreme Court cases over vaccine mandates are really about whether government can protect us, Ruth Marcus, right, Dec. 23, 2021. ruth marcusWhat powers does the federal government possess to combat a deadly virus that doesn’t recognize state boundaries?

Must the federal government stand by helplessly when red-state governors, rather than adopting vaccine and mask mandates, instead block them — harming their own residents in the face of a pandemic that has already cost more than 810,000 lives?

Can federal agencies impose mandates using laws that were hardly designed with a global health crisis in mind? Or must regulators wait for that authority to be made clear by Congress, which has proved itself increasingly incapable of governing?

Those questions are at the heart of two cases that the Supreme Court is to hear early next month. The first involves an emergency rule issued by the Occupational Safety and Health Administration requiring that companies with more than 100 employees working indoors mandate that they be vaccinated or, if not, wear masks and be tested weekly. The second concerns a vaccination requirement for workers in hospitals, nursing homes and other health-care facilities that participate in the federal Medicare and Medicaid programs.

The decisions will likely turn on a technical parsing of the language of the statutes invoked to justify the rules. But underlying both disputes are fundamental questions about the proper division of authority between federal and state government and federal regulators’ capacity to respond quickly and effectively to emergency situations.

It’s good that the court has agreed to hear these cases, in particular that it took the unusual step of scheduling oral arguments while considering the cases on an emergency basis. But these mandates represent aggressive, even unprecedented, uses of federal regulatory authority, and there is ample reason to fear what might happen to them in the hands of a conservative court that wants to elevate state power, is itching to rein in administrative agencies and is disinclined — to put it mildly — to read agencies’ authorities broadly.

 

U.S. House Jan. 6 insurrection investigating committee members Liz Cheney (R-WY), Adam Kinzinger (R-IL) and Jamie Raskie (D-MD) are shown, left to right, in a file photo.U.S. House Jan. 6 insurrection investigating committee members Liz Cheney (R-WY), Adam Kinzinger (R-IL) and Jamie Raskin (D-MD) are shown, left to right, in a file photo.

washington post logoWashington Post, Thompson says Jan. 6 committee is focused on Trump’s hours of silence during attack, weighing criminal referrals, Tom Hamburger, Jacqueline Alemany, Josh Dawsey and Matt Zapotosky, Dec. 24, 2021 (print ed.). The House committee investigating the Jan. 6 attack on the Capitol is focusing intently on Donald Trump’s actions that day as it begins to discuss whether to recommend that the Justice Department open a criminal investigation into the former president.

Committee Chairman Bennie G. Thompson (D-Miss.) said in an interview that of particular interest is why it took so long for him to call on his supporters to stand down, an area of inquiry that includes obtaining several versions of a video Trump reportedly recorded before finally releasing a message 187 minutes after he told his supporters to march on the Capitol during the rally that preceded the attack.

“It appears that he tried to do a taping several times, but he wouldn’t say the right thing,” Thompson said, basing his statement on information the panel has gleaned from interviews with witnesses as well as media reports about that day.

He said the president’s delayed response to the Capitol attack could be a factor in deciding whether to make a criminal referral, which is when Congress informs the Justice Department it believes a crime has been committed. It would be up to federal prosecutors to decide whether to pursue a charge.

“That dereliction of duty causes us real concern,” Thompson said. “And one of those concerns is that whether or not it was intentional, and whether or not that lack of attention for that longer period of time, would warrant a referral.”

A criminal referral against a former president would be historic and would ratchet up the political tensions that continue to swirl over the congressional inquiry into the worst attack on the Capitol since the War of 1812 as Trump considers running again for president.

 

capitol guns drawn

Police with guns drawn watch as rioters and vandals break into the House Chamber at the U.S. Capitol on Wednesday, Jan. 6, 2021, in Washington. (AP Photo / J. Scott Applewhite) (Source: J. Scott Applewhite/AP).

brian sicknickA California woman was warned and then fatally shot as she and others in the mob shattered glass and tried to crawl up and through the hole in the door to enter the chamber where congressional members and staff had huddled for safety during the rampage. Dying also were four others, including Brian D. Sicknick, above, a Capitol Hill police officer murdered while trying to protect government workers during the pro-Trump insurrection. President Trump failed to order federal flags flown at half-mast in his honor, although House Speaker Nancy Pelosi did so over the flags she controls at the Capitol.

 ny times logoNew York Times, Opinion: Will Donald Trump Get Away With Inciting an Insurrection? Laurence H. Tribe, Donald Ayer and Dennis Aftergut, Mr. Tribe taught constitutional law at Harvard for 50 years. Merrick Garland was one of his students. Mr. Ayer oversaw criminal prosecutions and investigations as Ronald Reagan’s U.S. attorney for the Eastern District of California. He later served as deputy attorney general. Mr. Aftergut handled a number of complex investigations and prosecutions as a federal prosecutor in San Francisco.

merrick garlandIn his nine months in office, Attorney General Merrick Garland, right, has done a great deal to restore integrity and evenhanded enforcement of the law to an agency that was badly misused for political reasons under his predecessor. But his place in history will be assessed against the challenges that confronted him. And the overriding test that he and the rest of the government face is the threat to our democracy from people bent on destroying it.

Mr. Garland’s success depends on ensuring that the rule of law endures. That means dissuading future coup plotters by holding the leaders of the insurrection fully accountable for their attempt to overthrow the government. But he cannot do so without a robust criminal investigation of those at the top, from the people who planned, assisted or funded the attempt to overturn the Electoral College vote to those who organized or encouraged the mob attack on the Capitol. To begin with, he might focus on Mark Meadows, Steve Bannon, Rudy Giuliani, John Eastman and even Donald Trump — all of whom were involved, in one way or another, in the events leading up to the attack.

Justice Department log circularAlmost a year after the insurrection, we have yet to see any clear indicators that such an investigation is underway, raising the alarming possibility that this administration may never bring charges against those ultimately responsible for the attack.

While the Justice Department has filed charges against more than 700 people who participated in the violence, limiting the investigation to these foot soldiers would be a grave mistake: As Joanne Freeman, a Yale historian, wrote this month about the insurrection, “Accountability — the belief that political power holders are responsible for their actions and that blatant violations will be addressed — is the lifeblood of democracy. Without it, there can be no trust in government, and without trust, democratic governments have little power.”

The legal path to investigate the leaders of the coup attempt is clear. The criminal code prohibits inciting an insurrection or “giving aid or comfort” to those who do, as well as conspiracy to forcibly “prevent, hinder or delay the execution of any law of the United States.” The code also makes it a crime to corruptly impede any official proceeding or deprive citizens of their constitutional right to vote.

Based purely on what we know today from news reports and the steady stream of revelations coming from the House select committee investigating the attack, the attorney general has a powerful justification for a robust and forceful investigation into the former president and his inner circle. As White House chief of staff, Mark Meadows was intimately involved in the effort to overturn the election. He traveled to Georgia last December, where he apparently laid the groundwork for the phone call in which the president pressured Georgia’s secretary of state, Brad Raffensperger, to “find 11,780 votes.” Representative Jim Jordan of Ohio reportedly promoted a scheme to pressure Vice President Mike Pence to reject duly certified Joe Biden electors. And from their war room at the Willard Hotel, several members of the president’s inner circle hatched the legal strategy to overturn the results of the election.

The president himself sat back for three hours while his chief of staff was barraged with messages from members of Congress and Fox News hosts pleading with him to have Mr. Trump call off the armed mob whose violent passion he had inflamed. That evidence, on its own, may not be enough to convict the former president, but it is certainly enough to require a criminal investigation.

And yet there are no signs, at least in media reports, that the attorney general is building a case against these individuals — no interviews with top administration officials, no reports of attempts to persuade the foot soldiers to turn on the people who incited them to violence. By this point in the Russia investigation, the special counsel Robert Mueller had indicted Paul Manafort and Rick Gates and secured the cooperation of George Papadopoulos after charging him with lying to the F.B.I. The media was reporting that the special counsel’s team had conducted or scheduled interviews with Mr. Trump’s aides Stephen Miller and Mr. Bannon, as well as Attorney General Jeff Sessions.

Of course, there is no way to know for sure whether Mr. Garland’s Department of Justice is investigating the leaders of the attack behind closed doors. Justice Department policy does not permit announcing investigations, absent exceptional circumstances. Mr. Garland, unlike his predecessor, plays by the book, keeping quiet about investigations until charges are filed. But the first of the rioters to plead guilty began cooperating with the Justice Department back in April. If prosecutors have been using their cooperation to investigate the top officials and operatives responsible for the siege of the Capitol and our democracy, there would likely be significant confirmation in the media by now.

It is possible that the department is deferring the decision about starting a full-blown investigative effort pending further work by the House select committee. It is even conceivable that the department is waiting for the committee’s final report so that federal prosecutors can review the documents, interviews and recommendations amassed by House investigators and can consider any potential referrals for criminal prosecution.

But such an approach would come at a very high cost. In the prosecution business, interviews need to happen as soon as possible after the events in question, to prevent both forgetfulness and witness coordination to conceal the truth. A comprehensive Department of Justice probe of the leadership is now more urgently needed than ever.

It is also imperative that Mr. Trump be included on the list of those being investigated. The media has widely reported his role in many of the relevant events, and there is no persuasive reason to exclude him.

First, he has no claim to constitutional immunity from prosecution. The Department of Justice’s Office of Legal Counsel has recognized such immunity only for sitting presidents because a criminal trial would prevent them from discharging the duties of their office. Mr. Trump no longer has those duties to discharge.

Nor is exclusion of the former president remotely justified by the precedent President Gerald Ford set in pardoning Richard Nixon to help the country “heal” from Watergate. Even our proud tradition of not mimicking banana republics by allowing political winners to retaliate against losers must give way in the wake of violence perpetrated to thwart the peaceful transition of power. Refusing to at least investigate those who plot to end democracy — and who would remain engaged in efforts to do so — would be beyond foolhardy.

Furthermore, the pending state and local investigations in New York and Atlanta will never be able to provide the kind of accountability the nation clearly needs. The New York case, which revolves around tax fraud, has nothing to do with the attack on our government. The Atlanta district attorney appears to be probing Mr. Trump’s now infamous call to Mr. Raffensperger. But that is just one chapter of the wrongdoing that led up to the attack on the Capitol.

Significantly, even if the Atlanta district attorney is able to convict Mr. Meadows and Mr. Trump for interfering in Georgia’s election, they could still run for office again. Only convicting them for participating in an insurrection would permanently disqualify them from office under Section 3 of the 14th Amendment.

Some have expressed pessimism that the Department of Justice would be able to convict Mr. Trump. His guilt would ultimately be for a jury to decide, and some jurors might believe he deluded himself into believing his own big lie and thus genuinely thought he was saving, rather than sabotaging, the election. But concerns about a conviction are no reason to refrain from an investigation. If anything, a federal criminal investigation could unearth even more evidence and provide a firmer basis for deciding whether to indict.

To decline from the outset to investigate would be appeasement, pure and simple, and appeasing bullies and wrongdoers only encourages more of the same. Without forceful action to hold the wrongdoers to account, we will likely not resist what some retired generals see as a march to another insurrection in 2024 if Mr. Trump or another demagogue loses.

Throughout his public life, Mr. Garland has been a highly principled public servant focused on doing the right thing. But only by holding the leaders of the Jan. 6 insurrection — all of them — to account can he secure the future and teach the next generation that no one is above the law. If he has not done so already, we implore the attorney general to step up to that task.

Palmer Report, Opinion: Donald Trump’s last stand, Bill Palmer, right, Dec. 24, 2021. When the U.S. Court of Appeals swiftly ruled that the National Archives must bill palmerturn over incriminating evidence against Donald Trump to the January 6th Committee, it was a given that Trump would appeal to the Supreme Court. Yesterday he did precisely that. Here’s the thing.

Even this Supreme Court isn’t going to allow itself to get dragged into Donald Trump’s last stand, just as it made a point of steering clear of bill palmer report logo headerhis baseless 2020 election claims. Trump has no claim of privilege and therefore has no case, as the appeals court has already spelled out. So the Supreme Court is either going to refuse to hear his case at all, or 2) hear the case but swiftly rule against him. Either way, this will be over within weeks.

This comes even as the January 6th Committee has pretty clearly been gearing up to hold publicly televised hearings in the new year. As we predicted back when this court battle first began, the committee will end up receiving the National Archives evidence against Donald Trump right around the time it was planning to go at Trump with its public hearings.

This is shaping up to be Donald Trump’s last stand. He seems to know it too, given how desperately he’s trying to fight this losing battle in court, even knowing that it won’t help him in any real way, or somehow magically “run out the clock.” He simply has no choice but to fight a losing battle on this, knowing he’s screwed anyway.

Justice Department logo

Lawfare, Commentary: Former Harvard Professor Convicted In Victory for Justice Department’s China Initiative, Brian Liu and Raquel Leslie, Dec. 23, 2021.  The Justice Department announced on Tuesday that Charles Lieber, former chair of Harvard’s Chemistry and Chemical Biology Department, was convicted by a federal jury in connection with his ties to China’s Thousand Talents Program.

Liebercharles lieber file, right, was convicted for failing to report income and making false statements to authorities regarding his affiliation with the Wuhan University of Technology (WUT). The conviction is a significant chapter in the story of the department’s China Initiative, which has recently come under fire by groups who allege that the program has led to racial profiling and amounts to prosecutorial overreach.

The jury convicted Lieber of knowingly and willfully making a materially false statement to federal authorities regarding his work with China’s Thousand Talents Program.

The program, launched in 2008, began with the aim of reversing brain drain by enticing Chinese scientists overseas to return to China. Over time, the program evolved to also recruit foreigners with expertise in key technologies. The program provided Lieber with $50,000 a month to work at WUT, in addition to up to $150,000 in living expenses and more than $1.5 million in grants. Though it is not illegal to participate in Chinese recruitment programs, federal prosecutors alleged that Lieber had failed to report these payments as required of scientists receiving federal funding.

Lieber was seen by some as a potential Nobel Prize winner for his work in nanotechnology. Nanotechnology, the manipulation of materials at a near-atomic level, is a strategically important field with civilian and military application in medicine, green energy, computing and propulsion. In 2012, China’s Academy of Sciences launched a Strategic Pioneering Programme dedicated to nanotechnology research, investing one billion yuan ($152 million) over five years. As a result of the investment, China now ranks first worldwide for the number of patents and articles published on nanotechnology.

Lieber’s prosecution is among the highest profile to come from the China Initiative. The Justice Department created the China Initiative during the Trump Administration in 2018 to prosecute intellectual property (IP) theft and protect U.S. research institutions and critical infrastructure from external threats.

The Biden administration has signaled to Congress that it plans to continue these efforts. In a congressional hearing in November, Attorney General Merrick Garland called China a “serious threat” with regard to IP theft and espionage. In the year-end update to its China Initiative information sheet, the department highlighted 15 prosecutions, indictments and operations from the past year. Separately, the MIT Technology Review published a database in December showing a total of 77 cases since 2018 with more than 150 defendants.

Academics and lawmakers have criticized the China Initiative, arguing that it has resulted in racial profiling against Asians and harmed U.S. technological competitiveness by chilling productive academic collaborations. This past July, in a letter signed by 90 members of Congress, Representative Ted Lieu warned about the risk of wrongful targeting of individuals of Asian descent.

Addressing these concerns, Garland spoke to the need for the Department of Justice to distinguish between countering the Chinese government and targeting Americans of Chinese descent: “We want to be careful to separate out a country that is a serious competitor with us . . . with Americans and also with residents who come from that country.” To distinguish the two issues, Professor Margaret Lewis of Seton Hall Law School has proposed renaming the initiative. Lewis argues that while fears of Chinese IP theft are not unfounded, the naming of a Justice Department initiative after a specific country unnecessarily feeds into xenophobia.

The Lieber trial was seen by some observers as not only a trial on Lieber’s conduct, but for the viability of the China Initiative writ large. It remains to be seen what impact Lieber’s conviction may have on the department’s broader China-related law enforcement efforts heading into next year.

U.S. Imposes Latest Round of Sanctions on China for Misusing Biotechnology Against Ethnic Minorities

The Biden administration announced on Dec. 16 that it imposed trade restrictions on dozens of Chinese government research institutes and private-sector tech firms over human rights violations and the alleged weaponization of technologies that undermine U.S. national security. Twelve Chinese research institutes and 22 Chinese tech firms, including China’s Academy of Military Medical Sciences, were blacklisted and barred from any exports or transfers of U.S. technology, except in limited cases with a license. The Commerce Department accused the entities of contributing to a broader Chinese government strategy to develop and deploy biotechnology “to support Chinese military end uses and end users, to include purported brain-control weaponry” for potential offensive use against Uyghurs and other ethnic minorities.

China “is choosing to use these technologies to pursue control over its people and its repression of members of ethnic and religious minority groups,” Commerce Secretary Gina Raimondo said in a statement. “We cannot allow U.S. commodities, technologies, and software that support medical science and biotechnical innovation to be diverted toward uses contrary to U.S. national security.” Earlier this month, the White House announced a diplomatic boycott of the 2022 Winter Olympics in Beijing, citing “ongoing genocide and crimes against humanity in Xinjiang and other human rights abuses.” The Biden administration has also indicated support for bipartisan legislation passed by the Senate on Dec. 16 that bans imports into the U.S. from Xinjiang unless companies can demonstrate the goods were not produced by forced labor.

 

Former Chief U.S. Circuit Judge for the District of Columbia Merrick Garland is sworn-in as attorney general by Vice President Kamala Harris on March 11, 2021 ( White House Photo by Lawrence Jackson).

Former Chief U.S. Circuit Judge for the District of Columbia Merrick Garland is sworn-in as attorney general by Vice President Kamala Harris on March 11, 2021 ( White House Photo by Lawrence Jackson).

Lawfare, Opinion: Merrick Garland Needs to Speak Up, Quinta Jurecic, Andrew Kent, Benjamin Wittes, Dec. 21, 2021. Attorney General Merrick Garland is taking a great deal of criticism these days.

He’s being attacked for not having indicted former President Trump, for not having brought cases faster against witnesses who have defied the Jan. 6 committee, and for not having moved more aggressively against political figures for their supposed involvement in the Jan. 6 insurrection.

These criticisms speak to genuine frustrations with the slow pace of department action. They are also based on two flawed assumptions.

The first is the assumption that the evidence and equities would support prosecutions and, consequently, that the absence of criminal cases reveals weakness or hypercaution on the Justice Department’s part. This may be the case—but it may not. The absence of prosecutions could also reflect inadequacies in the evidence needed to bring cases.

The second problem is the confusion of what has not happened with what has not happened yet. The Justice Department can be very busy without making a lot of noise. The fact that indictments have not materialized so far does not mean they won’t appear tomorrow—or the day after.

But nearly a year into his tenure as attorney general, though much of the criticism of Garland has been unfair or at least premature, the attorney general does have something to answer for: his relative silence.

When Joe Biden nominated Garland to be attorney general, Garland spoke explicitly about Edward Levi, the former president of the University of Chicago and a noted legal scholar who served as attorney general under President Gerald Ford.

“Ed Levi and Griffin Bell, the first Attorneys General appointed after Watergate, had enunciated the norms that would ensure the department’s adherence to the rule of law,” Garland said in his acceptance speech:

Those policies included guaranteeing the independence of the department from partisan influence and law enforcement investigations, regulating communications with the White House, establishing guidelines for FBI investigations, ensuring respect for the professionalism of DOJ’s lawyers and agents, and setting our principles to guide the exercise of prosecutorial discretion. Those policies became part of the DNA of every career lawyer and agent.

Garland’s mission as attorney general, he stressed, would be “to reaffirm those policies as the principles upon which the department operates.” And he quoted another speech from Levi’s swearing in: “Nothing can more weaken the quality of life, or more imperil the realization of the goals we all hold dear, than our failure to make clear by words and deed that our law is not the instrument of partisan purpose.”

At Garland’s first speech to the Justice Department staff, he once again invoked Levi:

The only way we can succeed and retain the trust of the American people is to adhere to the norms that have become part of the DNA of every Justice Department employee since Edward Levi’s stint as the first post-Watergate Attorney General.

As I said at the announcement of my nomination, those norms require that like cases be treated alike. That there not be one rule for Democrats and another for Republicans; One rule for friends and another for foes; One rule for the powerful and another for the powerless; One rule for the rich and another for the poor; Or different rules depending upon one's race or ethnicity. At his swearing in, Attorney General Levi said: “If we are to have a government of laws and not of men, then it takes dedicated men and women to accomplish this through their zeal and determination, and also through fairness and impartiality. And I know that this Department always has had such dedicated men and women.” I, too, know that this Department has and always has had such dedicated people. I am honored to work with you once again. Together, we will show the American people by word and deed that the Department of Justice pursues equal justice and adheres to the rule of law.

Garland is not the only senior Justice Department official to refer to Levi’s legacy in describing the mission of the Justice Department under President Biden. At her confirmation hearing, Deputy Attorney General Lisa Monaco declared that:

My first job in the Department was as counsel to Janet Reno, the first woman Attorney General. She hung a portrait of Attorney General Edward Levi in her conference room. It signaled her commitment to continuing Levi’s post-Watergate work to ensure the Department’s independence. It symbolized for me then, and is a reminder today, that the Department’s leaders have a duty to remember and reaffirm the values of the institution. When Attorney General Levi was asked what he thought the Department needed most after Watergate, he responded, “A soul.”

There’s a very good reason the senior Justice Department leadership keeps pointing to Ed Levi as a kind of founding father of the Justice Department they seek to restore. Indeed, we are sympathetic to the Justice Department’s need to revive the norms and practices of apolitical, independent, and professional justice that Levi did more than any other single person to create. Before Biden was even elected, in fact, one of us tweeted that Garland should be attorney general because he “is the closest thing the country has right now to an Ed Levi figure to restore the Justice Department.” Another of us wrote last spring an article in the Atlantic analyzing Levi’s legacy as a model for Garland.

Yet Garland seems to be ignoring one crucial aspect of Levi’s legacy: Ed Levi spoke a lot. Garland has been, in sharp contrast, largely invisible.

You don’t establish norms, or reestablish them, merely by modeling them. You establish them by articulating them, by talking about them, and by convincing people that they are the right way to behave. Levi understood this. His speeches and congressional testimonies as attorney general were numerous, highly substantive, and made arguments on behalf of the direction he wished to see the department go. They are a unique body of work among attorneys general, considered intellectually significant enough to have been collected and published as a volume by the University of Chicago Press.

Levi himself, we have learned, personally attached great importance to his speeches and testimonies. According to John Buckley, who served as one of Levi’s special assistants at the department and worked on some of the speeches, Levi wrote them himself—working on each with one of his special assistants.

Under Levi’s predecessor, William Saxbe, the public relations office would write the attorney general’s addresses. But Levi “​​believed in communication” and “labored over his speeches, testimony, [and] addresses,” Buckley said in a recent interview. He would “bang away at a manual typewriter” and edit the speeches with a fountain pen. “Those were his words.”

When he left office, his speeches were sufficiently significant to Levi that he bound them in a printed volume and gave a copy to each of the special assistants. It shows, Buckley says, “how much importance he attached to everything he wrote.”

Levi understood that certain Department of Justice issues were important enough that he needed to speak candidly and in detail about them to the public. For instance, the massive extent of the FBI’s “black bag jobs” and warrantless wiretapping of American citizens, sometimes for purposes of gathering political intelligence, had come to light through investigative journalism, congressional oversight, and some long overdue Department of Justice housecleaning started under Levi’s predecessor, Saxbe. J. Edgar Hoover’s FBI was also found to have gathered salacious material on a wide range of public figures, including members of Congress, and to have engaged in abusive and sometimes bizarre efforts to disrupt and discredit groups and individuals it considered radical. The revelations understandably lowered public opinion of the department’s integrity, and raised legitimate concerns about how deep the rot went and whether it was continuing.

Levi candidly owned up to mistakes: “[W]e all realize that in the past there have been grave abuses” by the FBI. And he named and described them. The “supervision by Attorneys General” of the FBI “has been sporadic, practically nonexistent, or ineffective.” He vowed to fix that and explained very specifically how he aimed to do it.

Levi also spoke repeatedly about programmatic efforts to remedy the sources of the problems. For example, he described to Congress and the public how he had tasked a Justice Department committee to draft detailed guidelines to rein in FBI misbehavior and increase oversight in sensitive areas, such as investigations that touched on political figures and political groups, the issuance of subpoenas to members of the press, and the use of informants. He repeatedly articulated the department’s legal views, along with policies designed to have warrantless wiretapping for foreign intelligence purposes narrowly circumscribed and subject to his personal oversight. He spoke publicly and specifically about the department’s work with Congress on a broad statute to bring under judicial oversight all domestic wiretapping for national security purposes. He described the outrageous FBI conduct toward Martin Luther King Jr. and described how he had tasked non-FBI officials to credibly and independently investigate it. Levi talked about how “important” it was that “the public get assurances that there are not such abuses” happening anymore. His goal was a “reconstruction” of the department and the public’s confidence in it, and a “reaffirmation of the effectiveness, independence and integrity of law enforcement agencies.”

Garland comes from a different school of thought on public engagement. During his long service as a judge, not only did he not give speeches or interviews describing his thinking and goals. He didn’t speak publicly at all. He didn’t speak at universities, as many judges do. He didn’t write law review articles. In his earlier stint at the Justice Department, he never cut much of a public figure either, though everyone understood that he was one of the most important people in the Main Justice building. He is steeped in the department’s culture of quietness, and he took that culture with him to the judiciary—where he was far more quiet than his contemporaries on the bench.

This quietness on Garland’s part is an expression of certain long-standing Justice Department norms. The department, according to this model, speaks almost entirely in court. It does not comment on pending investigative or prosecutorial matters outside of that. It does not behave politically—and shutting up is one very good way of avoiding saying things that could be construed in a political fashion. And the current moment has undoubtedly reinforced in Garland the wisdom of silence. His predecessor, William Barr, made all kinds of public comments that brought the department’s conduct into disrepute, speculating on what may have happened during the Russia investigation, for example. And before his firing, FBI Director James Comey was widely blasted for his comments about the Clinton email investigation during the last weeks before the 2016 election. So Garland may well have an instinct that the less he says the better.

The trouble is that, while silence by the attorney general reflects the department’s norms, it is a singularly bad means of establishing—or reestablishing—them.

In Garland’s defense, in deciding whether and how to speak publicly about past abuses and the current work of the department, he is facing problems that in some ways are tougher than those that confronted Levi. When Levi took office, the question about whether a former president who had potentially violated a number of criminal laws should be prosecuted had been resolved already: President Ford had granted a blanket pardon to Richard Nixon. Politically sensitive prosecutions of Watergate defendants had been handed off to a special prosecutor’s office. By contrast, questions about prosecuting Donald Trump and his associates must be faced by Garland himself and the departmental prosecutors working under him.

Levi’s credibility and freedom to operate were almost certainly enhanced by the facts that American politics, culture and media were less polarized in the 1970s than today, and that Levi’s criticisms of past abuses at the Department of Justice and White House often involved a current Republican administration criticizing a former Republican administration. Garland—unfortunately for him—must act and speak in a time of both fierce political tribalism and a social media environment that amplifies conflict, extreme positions and lies, all while laboring under the disability that criticisms from a Democratic attorney general of Republican predecessors will be discounted by many observers who will simply assume it to be politically motivated.

Despite our sympathy with the challenges facing Garland, his unwillingness to give the public any insight into his thinking seems ripe for criticism. It reflects a decision not to sell a vision—a vision that Garland clearly possesses and embodies—about how decisions should get made when the department is functioning properly.

There are a lot of such decisions before the department on which the public understanding and public debate would benefit from hearing the attorney general’s thinking. When Garland issued a policy strictly limiting contacts between the White House and the Justice Department—a policy very similar to ones that had been in place since the late 1970s—he could have given a speech explaining his goals and his choices. These policies seek to ensure that investigative and prosecutorial decisions about specific individuals are made based on law and fact, as evaluated by department lawyers and law enforcement professionals, not based on partisan or other improper considerations emanating from the White House. These norms were flagrantly abused during the Trump administration, and are in need of public reaffirmation. But Garland gave no such speech, leaving it to the press to report on the existence of the new policy and explain its significance to the public.

There are other instances in which more speaking would have been preferable. The department has reached plea agreements with a number of Jan. 6 defendants and has faced criticism, including from skeptical judges, for some of the relatively lenient sentences it has sought in those cases. What coordinating mechanisms have been set up to make sure that, as Garland himself put it, “like cases [are] treated alike”? And has there been any policy-level guidance about how different fact patterns should be charged?

Questions about when the department will act on criminal contempt referrals from Congress about witness refusals to comply with subpoenas from the Jan. 6 committee—such as that of Mark Meadows, Trump’s former chief of staff—are also fraught. It is, of course, correct for the department to avoid specific comments about individual pending matters. But this is not simply a collection of individual cases. It is a politically explosive and undeveloped area of law and practice that implicates fundamental separation of powers questions. The public would benefit from hearing reasoned discussion from the attorney general about how the department is approaching these referrals in broad terms. How is it balancing its institutional obligations to the legislature to bring contempt cases with its own interests in preserving a robust executive privilege?

Other areas would similarly benefit from public explanation. After the Sept. 11 attacks, the FBI and the Justice Department gave regular briefings on the investigation. There has been no such comparable effort to keep the public informed of the department’s progress in the Jan. 6 investigation—an investigation of similar scope and scale. Why not?

There is another, more internal question, about which Garland might turn the focus outward: What, if anything, is the department doing within its own ranks to try to rebuild norms and protect against potential misuse of law enforcement for partisan or personal ends in the future? Levi talked about this constantly; Garland has been quiet—except insofar as he has issued a new memorandum on White House contacts. But this question is critical, because it goes to the question of whether any of the changes he’s contemplating will outlast him or meaningfully constrain a less scrupulous attorney general.

Perhaps most importantly, what does the attorney general think—in broad terms, without commenting on any specific investigation—about when it is proper for the department to revisit a criminal investigation formally closed by a prior administration? This is a matter about which prior attorneys general have spoken. It is of acute concern right now with respect to the findings of the Mueller investigation, in particular Special Counsel Robert Mueller’s findings concerning potential obstruction of justice by Trump. Barr personally determined not to prosecute on the grounds that the evidence collected by Mueller was “not sufficient to establish that the President committed an obstruction-of-justice offense”—a decision widely criticized at the time as politically motivated. On entering office, Garland quickly faced calls to take a fresh look at the Justice Department’s charging decision.

So far, there have been no outward indications that the department is reconsidering Barr’s choice. That doesn’t mean that nothing is happening—Mueller left the Justice Department with a rich evidentiary record to pore over without necessarily needing to conduct further investigation. But there is a new urgency to this issue, because the window is beginning to close on the Justice Department’s ability to bring charges against Trump over obstruction.

The statute of limitations for the various obstruction of justice statutes at issue is five years. Trump’s potential obstructive acts, as documented in the Mueller report, spanned from February 2017 through January 2019—so starting in February 2022, the statute of limitations will begin to kick in.

The below chart sets out the various instances of potential obstruction of justice identified by Mueller along with the expiration date for the statute of limitations. It’s an updated version of the obstruction heat map published by Lawfare after the Mueller report’s release, identifying how Mueller evaluates the strength of the three components of the obstruction statutes—an obstructive act, a nexus between the act and an official proceeding, and corrupt intent. This updated edition includes new information about Trump’s actions toward his confidante Roger Stone, which were redacted in the original copy of the Mueller report shared with the public and only revealed in July 2020. It also incorporates Trump’s pardons of Michael Flynn, Paul Manafort and Roger Stone—all of which he granted in 2020, and which arguably constitute potential obstructive acts that reset the clock on the statute of limitations.

As the chart shows, 2022 and 2023 will be crucial years for the Justice Department’s decision-making. The department will face its first deadline in February, concerning whether or not to charge Trump for his infamous conversation with then-FBI Director Comey over the bureau’s investigation into Trump’s former National Security Adviser Michael Flynn. But as the heat map shows, the strongest potential obstruction charges against Trump—as Mueller identifies them—will start to expire in June and July 2022, five years after Trump sought to engineer Mueller’s firing and then to hamstring his investigation. The chart highlights in red the expiration dates for the statute of limitations on these particularly strong cases, on the grounds that they potentially represent the hardest decisions for the Justice Department to make.

As far as we can tell, Garland has not spoken in public on the subject, leaving commentators to guess and prognosticate about the approach that the Justice Department might be taking. While it would obviously be improper for the department, or the attorney general, to speak to specific charges or defendants, it does not seem unreasonable to expect the attorney general to give some window into his thinking about the fundamental questions: Is the department deferring to Barr’s resolution of the matter? Has it, in fact, taken a look and determined that charges would be inappropriate? Or are questions arising from the Mueller report matters of active consideration?

These questions cut to the heart of public confidence in the Justice Department. A significant number of Americans are waiting for the department to hold Trump legally responsible for the many abuses for which he dodged accountability before. If the department doesn’t take such action, even if for very good reasons, these people will be disappointed and frustrated. Justice Department officials might brush off such reactions, except that this disappointment will inevitably undercut Garland’s efforts to “retain the trust of the American people.”

One of the lessons of Trump’s attacks on the integrity of the Justice Department is that most Americans don’t have a strong understanding of why independence in law enforcement matters or of the norms that, since Levi, have guided the department. Perhaps Garland’s view is that the risks of criminally investigating a former president, even in this time, are too great to take, too much of a breach of the department’s traditions. But he cannot expect people to understand that, or have a reasoned discussion of it, without first explaining it to them. And in the absence of an explanation, members of the public will come up with their own ideas—like weakness or lack of commitment to accountability. That silence undercuts the project to which Garland has committed himself.

If the goal of the Justice Department under Garland, as it was under Levi, is to rebuild the expectation that the department will act apolitically on investigative and prosecutorial matters, public communications matter. Public communications from the attorney general himself matter a lot. Garland is a scholarly man, a deeply thoughtful person. He is leaving one of his most important tools in the shed: As Levi said in one speech, “The basic tool for the lawyer is the word.”

Dec. 21

washington post logoWashington Post, Lead Capitol riot charge is constitutional, judges find, Rachel Weiner, Dec. 21, 2021. Three federal judges have agreed that the most serious charge faced by those accused of participation in the Jan. 6 riot at the U.S. Capitol is constitutional, a victory for the Justice Department and a blow to the defendants fighting those accusations.

The ruling came Monday evening from U.S. District Judge Amit B. Mehta, who is overseeing the prosecutions of more than a dozen people associated with the Oath Keepers, a self-styled militia group. Mehta joins judges Dabney L. Friedrich and Timothy J. Kelly, both of whom have moved to uphold the obstruction charges in other cases.

The same legal challenge has been raised by defendants in various Capitol riot prosecutions, from single-person indictments to sprawling conspiracy cases. One judge who has questioned the use of the obstruction charge has yet to rule on the issue.

Without that felony charge, prosecutors would be left with only minor charges against many they view as playing a major role in the riot. The Justice Department has avoided charges of sedition, a rarely used law, and not all those accused of acting as key instigators were seen assaulting police officers.

What crime might Trump have committed on Jan. 6? Liz Cheney points to one.

The ruling also has broader implications. Rep. Liz Cheney (R-Wyo.) has suggested former president Donald Trump could be charged with obstruction of an official proceeding.

Mehta had previously expressed concern that it was unclear what conduct counted as felony “obstruction of an official proceeding” as opposed to misdemeanor disruption of a congressional hearing — a difference between a potential sentence of six months and 20 years behind bars.

Lead felony charge against Jan. 6 defendants could be unconstitutionally vague, U.S. judge warns

But after months of consideration and legal arguments on both sides, Mehta ruled that the government had it right.

“Their alleged actions were no mere political protest,” he wrote. “They stand accused of combining, among themselves and with others, to force their way into the Capitol building, past security barricades and law enforcement, to ‘Stop, delay, and hinder the Certification of the Electoral College vote.’ ”

Defendants had argued that it was unclear whether the certification of President Biden’s victory counted as an “official proceeding.” Charging participants in the Jan. 6 riot with obstruction, they warned, could turn even peaceful protesters into potential felons.

Right wing and liberal vigils planned for in D.C. on anniversary of Capitol riot

Mehta said the “plain text” of the obstruction law covered the group’s actions, and that “even if there were a line of ambiguity ... their alleged acts went well beyond it.” Because the law requires the obstruction to be undertaken “corruptly,” he added, it does not imperil constitutionally protected free speech.

  • Washington Post, Right-wing, liberal vigils planned in D.C. on anniversary of Capitol riot

washington post logoWashington Post, Pentagon updates rules to address extremism in the military, Karoun Demirjian and Alex Horton, Dec. 21, 2021. The new regulations stem from revelations that military personnel and veterans were among those who attacked the U.S. Capitol on Jan. 6. The Pentagon is updating its personnel policies to address a concerning rise of extremism within the military and hold service members accountable for the views they express on social media, officials said Monday.

The rules stem from revelations that military personnel and veterans were among those who attacked the U.S. Capitol on Jan. 6. Upon taking office this year, Defense Secretary Lloyd Austin pledged to study how prevalent the problem may be and take steps to eliminate it.

Senior U.S. defense officials said the Pentagon’s approach will not expressly prohibit membership in extremist groups — and does not target particular ideologies or political leanings, despite the prevalence of right-wing groups that participated in the Capitol attack. Instead, it focuses on addressing “actions” and will rely in large part on individual service members or outside law enforcement agencies to report concerning behavior.

Dec. 20

 

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

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

washington post logoWashington Post, Opinion: The alternative to Supreme Court enlargement is surrender, E.J. Dionne Jr., right, Dec. 20, 2021 (print ed.). What the right wing understands that liberals have mostly forgotten is that reshaping rules and institutions can determine outcomes in advance, undermining ej dionne w open neckdemocratic decision-making. The trappings of democracy remain, but real power is vested in the hands of those who bent the rules to predetermine the results.

Liberals are at a special disadvantage when it comes to confronting a radically conservative Supreme Court because most of them are, by nature, institutionalists. They are wary of upsetting long-standing arrangements for fear of mimicking the destructive behavior of the other side and, in the process, legitimizing it.

But the aggressiveness of the right has turned this procedural delicacy into a rationalization for surrender.

Conservatives have abused the process of seating (and blocking) judges again and again. The current 6-3 right-leaning conservative Republican majority on the Supreme Court — let’s call the partisanship by its name — would be a 5-4 moderately liberal Democratic majority if Sen. Mitch McConnell (R-Ky.) had observed the long-standing norms surrounding appointments. Liberals, progressives and moderates who value the rule of law can wring their hands and sit back while this court carries us all back to the 19th century. Or they can say: Enough.

The first step toward doing so is to insist on the truth: This court has already been packed by the right. And the only effective way to undo the right’s power play is to unpack it by adding four justices.

Proponents of court enlargement are still a minority, even among liberals — for now. But their ranks are growing, and one important recruit is Sen. Elizabeth Warren (D-Mass.), who endorsed the idea of adding justices last week. True, Warren is a leading progressive, so perhaps you’re not surprised. But she is also a former law professor who reveres the judiciary and did not come to this position lightly.

The Future of Freedom Foundation, Commentary: The Fear of Those Still-Secret CIA Records on the JFK Assassination, Jacob G. Hornberger, right, Dec. 20, jacob hornberger new2021. One of the amusing aspects of the ongoing controversy over those still-secret CIA records relating to the Kennedy assassination has been the reaction of lone-nut theorists. Hardly any of them, if any at all, are publicly calling on President Biden to disclose those records now rather than delaying disclosure for another year.

What’s up with that? Surely, lone-nut theorists don’t really buy into the “national security” rationale for keeping 58-year-old records relating to the assassination secret from the American people. I don’t know of anyone who really buys into that rationale. After all, what do they think will happen if those records are suddenly disclosed — that the Cuban communist army will invade Miami and start moving up the coast toward Washington?

future of freedom foundation logo squareI’ll tell you why those lone-nut theorists don’t demand immediate disclosure of those documents? They’re scared. Very scared. They fear, at least on a subconscious level, that those remaining records include powerful circumstantial evidence establishing that what happened on November 22, 1963, was a regime-change operation on the part of the national-security establishment. Why else would they still be hiding those records? No, the Cuban army isn’t not going to invade Miami and start moving north toward Washington.

And no, I’m not suggesting that those 58-year-old, still-secret CIA records contain a confession of wrongdoing. Nobody would be stupid enough to put a confession into writing. And even if someone was that stupid, no one would be stupid enough to deliver such a confession to the Assassination Records Review Board or the National Archives.

The JFK assassination is like a gigantic jigsaw puzzle. Imagine a really complicated puzzle that has 1000 small pieces to it. Your kids have lost 25 percent of the pieces. You decide to put the puzzle together anyway. You finish it. Even though you’ve only got 75 percent of it completed, you can still CIA Logotell that it’s a picture of the Eiffel Tower. Then, you find several more pieces. You now have 80 percent of the pieces and you’re able to see the Eiffel Tower more clearly.

That’s the way it is with the Kennedy assassination. With around 75 percent of the pieces, one can see that this was a national-security state regime-change operation. What those remaining records will do is disclose several more small pieces that make the regime-change picture even clearer. That’s why they are hiding them. That’s why they have hidden them for 58 years. That’s why they will continue hiding them, even past Biden’s December 22, 2022, deadline for disclosure. It’s because those still-secret records contain additional incriminating pieces to the puzzle that further fill out the regime-change mosaic.

Permit me to address three factors regarding the Kennedy assassination.

The first one is what I call the Inconceivable Doctrine. It holds that it is just inconceivable that the Pentagon and the CIA would conduct a regime-change operation against President Kennedy.

Really? How can it be inconceivable given the fact that Pentagon and the CIA engaged in regime-change operations against presidents and prime ministers of foreign countries, both before and after the Kennedy assassination?

  • Their violent coup in Iran in 1953 that ousted the democratically elected prime minister, Mohammad Mossadegh, from office.
  • Their assassination of Congo leader Patrice Lumumba.
  • Their regime-change operation in Guatemala in 1954, in which they ousted the democratically elected president, Jacobo Arbenz, from office and also targeted him for assassination.
  • Their repeated assassination attempts against Cuban president Fidel Castro.
  • Their kidnapping and assassination of General Rene Schneider, the overall commander of Chile’s armed forces.
  • Their violent coup in Chile against the democratically elected president, Salvador Allende, which left him dead.
  • Their participation in Operation Condor, the top-secret kidnapping, torture, and assassination program in South America.

Given those regime-change operations and Operation Condor, how can it be inconceivable that they would do the same to a democratically elected U.S. president, especially one whose policies they are convinced pose a grave threat to national security.

What lone-nut theorists just do not want to confront is the fact that the little monster that was brought into existence to assassinate and regime-change douglas horne 2021foreign leaders and others turned inward to protect America from a president whose philosophy and policies, they were convinced, posed a grave threat to national security — a much graver threat, in fact, than those other leaders posed who they assassinated or regime-changed. See FFF’s book JFK’s War with the National Security Establishment: Why Kennedy Was Assassinated by Douglas Horne, right.

The second factor: In the Guatemalan and Chilean regime-change operations, the U.S. national-security establishment told their national-security counterparts in those two countries that the latter had the moral duty to protect their countries by ousting their president whose policies supposedly posed a grave threat to their own national security. How can a domestic regime-change operation be inconceivable given that mindset on the part of the U.S. national-security establishment?

The third factor: The fraudulent autopsy. In the 1990s, the Assassination Records Review Board broke the dam of silence surrounding the autopsy that the U.S. national-security establishment conducted on Kennedy’s body just a few hours after the assassination.

Consider just one aspect to the fraudulent autopsy — the two brain exams that were conducted, the second of which did not involve President Kennedy’s brain.

For 30 years, the national-security establishment had succeeded in keeping its autopsy on Kennedy’s body secret from the American people. It did this by “classifying” it and forcing military personnel involved in the autopsy to sign written secrecy oaths. The personnel were threatened with severe punitive actions if they ever talked about what they had done or seen.

For 30 years, the three military pathologists who conducted the autopsy claimed that there was only one brain examination. That was a lie. And there is no innocent explanation for that lie. It is incriminating, highly incriminating.

The ARRB staff determined that there were two brain exams. John Stringer, the official photographer for the autopsy, told the ARRB that he was at the first brain exam. He told them that at that exam, the brain was “sectioned” or cut like a loaf of bread. That’s standard procedure in gunshot wounds to the head.

Stringer also stated that the photographs of the brain in the official autopsy records were not the photographs he took.

Stringer also told the ARRB that he was not at the second brain exam, which was attended by all three military pathologists and some unknown photographer. At that second brain exam, the brain was not sectioned. That could not have been the brain at the first brain exam because a sectioned brain cannot reconstitute itself.

And that’s just the tip of the autopsy iceberg. See my books The Kennedy Autopsy and The Kennedy Autopsy 2.

As I have repeatedly stated over the years, there is no innocent explanation for a fraudulent autopsy. Certainly no lone-nut theorist has ever come up with one. That’s how we know that this was a national-security state regime-change operation. A fraudulent autopsy necessarily means cover-up in the assassination itself, especially given that the scheme for a fraudulent autopsy was launched at Parkland Hospital at the moment Kennedy was declared dead. See The Kennedy Autopsy.

Notice something important about all this: Whenever lone-nut theorists say that there isn’t evidence of a domestic regime-change operation, they never — repeat never! — address the fraudulent brain exams and the fraudulent autopsy. That’s because they know that a fraudulent brain exam and a fraudulent autopsy necessarily mean a national-security regime-change operation carried out against Kennedy.

The sooner America comes to grips with the fact that the Kennedy assassination is every bit a part of our legacy as a national-security state as all the other regime-change operations, the better off we will be. Acknowledging the truth about out national-security legacy will be the first step in ridding ourselves of the evil system known as a national-security state and restoring our founding governmental system of a limited-government republic.

Dec. 16

 

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

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

ny times logoNew York Times, Opinion: The Supreme Court, Weaponized, Linda Greenhouse (shown at right on the cover of her memoir), Dec. 16, 2021. When the Supreme Court overturned a 41-year linda greenhouse cover just a journalistprecedent three years ago and ruled that public employees have a right under the First Amendment’s free speech guarantee not to pay union dues, Justice Elena Kagan accused the 5-to-4 majority of “weaponizing the First Amendment” to serve its anti-labor agenda.

Her powerful dissenting opinion in Janus v. American Federation of State, County and Municipal Employees helped propel the “weaponizing” image into circulation as an apt description of how the court’s conservatives were hijacking the First Amendment and converting it into a tool of deregulation.

Now it’s the Supreme Court itself that has been weaponized.

With the accuracy of a drone strike, the three justices appointed by President Donald Trump and strong-armed through to confirmation by Senator Mitch McConnell, then the majority leader, are doing exactly what they were sent to the court to do.

The resulting path of destruction of settled precedent and long-established norms is breathtaking.

Despite the increasingly plaintive reminders by Chief Justice John Roberts that, as he wrote in dissent in the Texas abortion case last week, “it is the role of the Supreme Court in our constitutional system that is at stake,” the new majority has refused to defend the supremacy of federal law in the face of open defiance by Texas. The court’s acquiescence has left that state’s abortion clinics all but shuttered for months, with pregnant women fleeing to seek care in numbers that are destabilizing the abortion infrastructure in states hundreds of miles from the Texas border.

jeffrey epstein ghislaine maxwell motorcycle

Jeffrey Epstein and Ghislaine Maxwell (Undated photo introduced by prosecution at trial).

The Unz Review, Investigation: Meet Ghislaine: Daddy’s Girl, Whitney Webb, right, Dec. 16, 2021 (4,500 Words). Introduction: Absent from mainstream discourse on Ghislaine Maxwell’s ongoing trial is any mention of the ties, not only of herself, but her family, to Israeli whitney webb twitterintelligence. Those ties, forged by Ghislaine’s father Robert Maxwell, are critical to understanding Ghislaine’s history and her role in Jeffrey Epstein’s sexual blackmail and trafficking network.

The trial of Ghislaine Maxwell, the alleged madam of Jeffrey Epstein’s sexual blackmail and sex trafficking network, has attracted considerable mainstream and independent media attention, though not as much as one might expect given the level of media attention that surrounded Epstein’s 2019 arrest and death or given the public interest in the Epstein/Maxwell scandal and its broader implications.

Unsurprisingly, the broader implications of the Epstein/Maxwell scandal have been largely, if not entirely absent, from mainstream media (and some independent media) coverage of Ghislaine Maxwell’s trial as well as absent from the case itself. For example, despite physical evidence of sexual blackmail stored at Epstein’s residences being shown by the prosecution (with the names of those incriminated being notably redacted), the prosecution chose not to mention even the potential role of blackmail in Ghislaine Maxwell’s activities and motives as it related to her involvement in sex trafficking activities alongside Jeffrey Epstein. Not only that, but the names of Ghislaine’s close contacts and even some of her defense witnesses, along with considerable information about her role in Epstein’s network that is very much in the public interest, is due to be filed under seal and forever hidden from the public, either due to “deals” made between the prosecution and the defense in this case or due to rulings from the judge overseeing the case.

Going hand in hand with the blackmail angle of this case is the specter of Ghislaine Maxwell’s family ties to intelligence agencies, as well as the intelligence ties of Jeffrey Epstein himself. Given that blackmail, particularly sexual blackmail, has been used by intelligence agencies – particularly in the US and Israel – since the 1940s and beyond, it is deeply troubling that neither the blackmail or intelligence angle has played any role in the prosecution’s case or in the mainstream media’s coverage of the trial.

To remedy this lack of coverage, Unlimited Hangout is publishing a 2-part investigative report entitled “Meet Ghislaine”, which is adapted from this author’s upcoming book on the subject. This investigation will detail key aspects of Ghislaine Maxwell’s links to intelligence agencies and sexual blackmail activities that are relevant to the case against her and perhaps explain the silence from the prosecution and their interest in sealing potentially incriminating evidence against Ghislaine from public scrutiny. Part 1 of this article will focus on Ghislaine’s father, Robert Maxwell, a “larger than life” figure who straddled the worlds of both business and espionage and whose daughters inherited different aspects of his espionage contacts and activities as well as his influence empire following his 1991 death.

Dec. 14

 

abraham lincoln military commission

Wayne Madsen Report, Investigative Commentary: Punishment for U.S. coup leaders must be as severe as that which befell Lincoln assassination plotters, wayne madsen may 29 2015 cropped SmallWayne Madsen, left, Dec. 14, 2021. In WMR's December 7, 2021 report, we predicted that we are now in a situation of experiencing "Watergate-level of back-to-back developments." The recent revelations by the House Select Committee on the January 6th sedition, now deemed an attempted coup d'état by Donald Trump and his circle of conspirators, bears out our earlier assessment.

It was Secretary of War Edwin Stanton, Attorney General James Speed, and Advocate General of the Army Joseph Holt who successfully argued that the Lincoln assassination conspirators should be tried by a military commission. Those who plotted to kill Lincoln were, according to several historical records, continuing to follow orders from the remnants of the Confederate government, even though its Army chief, General Robert E. Lee, had surrendered his forces to the United States on April 9, 1865.

abraham lincoln alexander gardner library of congress getty imagesWhen Lincoln, right, was assassinated on April 14, 1865, members of the Confederate government and its Bureau of Special and Secret Service continued to be active around the nation. It was important for the federal government to send a message to the Confederate holdouts and the summary military commission trial and sentencing of the Lincoln assassination cabal sent that very message: continue to wage war and the consequences will be swift and harsh.

That same message must be vigorously delivered by the federal government to those who planned and carried out the coup attempt of January 6th.

A modern-day military commission that would handle the sedition trials of Donald Trump, Mark Meadows, Rudolph Giuliani, and other conspirators, could follow the same path as the 1865 tribunal. The lackadaisical attitude of Attorney General Merrick Garland toward the January 6th coup attempt demands why he and his department -- continued to be infiltrated by Trump right-wing loyalists like Alexander Haas, the director of the Civil Division’s Federal Programs Branch and Curtis Gannon, the Deputy Solicitor General -- not be relied upon or trusted to ensure that the coup plotters are dealt with effectively and, if found guilty of seditious conspiracy, severely.

merrick garlandIf Garland does not want to "look backward," as he has stated, then it must be a military commission that looks forward in bringing the judicial hammer down on the seditious conspirators of January 6th. Garland, left, can watch the commission's proceedings on television if he so wishes.

In dealing with our country's worst case of sedition since the Civil War, justice for the main perpetrators and planners must be dealt with by thinking "out of the box." The coup plotters had definitely been creative when it came to interpreting election laws and the Constitution by proposing bogus presidential electors, killing off the major leaders of Congress, and declaring a "national security emergency" and imposing martial law.

America must send a clear message to the world: when our democracy is attacked from within, including by the President of the United States, justice is swift and certain.

And, if that means Donald Trump is found guilty of seditious conspiracy and related crimes against the nation and its Constitution, capital punishment should be a primary option for a special military commission to consider. Had the Trump coup been successful, there is no doubt that Trump and his cronies would have been merciless in dealing with those who opposed his attempted seizure of dictatorial power. This nation will not get a second chance to deal with the coup plotters in a determined and swift manner.

Dec. 13


 mark meadows hands out

Politico, Meadows Jan. 5 email indicated National Guard on standby to ‘protect pro Trump people,’ investigators say, Kyle Cheny and Nicholas Wu, Dec. 13, 2021 (print ed.). Mark Meadows, shown above in a file photo, indicated in a Jan. 5 email that the National Guard was on standby to “protect pro Trump people,” according to documents obtained by the House committee investigating the Capitol riot, which the panel described in a public filing Sunday night.

politico CustomThe context for the message is unclear, but it comes amid intense scrutiny of the Guard’s slow response to violence at the Capitol on Jan. 6 and conflicting timelines about their efforts from the Pentagon and National Guard leadership.

It's unclear who Meadows, the former White House chief of staff to Donald Trump, relayed the information to or whether it was the result of any insight provided by the Defense Department.

But the exchange is of high interest to congressional investigators probing whether Trump played a role in the three-hour delay between the Capitol Police's urgent request for Guard support and their ultimate arrival at the Capitol, which had been overrun by pro-Trump rioters. The comment also aligns christopher miller official.jpgwith testimony from former Defense Secretary Christopher Miller, right, who said that in a Jan. 3 conversation with Trump, the then-president told him to "do whatever was necessary to protect the demonstrators that were executing their constitutionally protected rights."

The description of the message is part of a 51-page document released Sunday by the select panel a day before it is set to vote to hold Meadows in contempt of Congress. The full House is expected to vote to hold Meadows in criminal contempt of Congress on Tuesday.

In other messages described by the committee, Meadows appears to have asked members of Congress to help connect Trump with state lawmakers shortly after his defeat in November.

“POTUS wants to chat with them,” Meadows said, according to documents obtained by the Jan. 6 committee and described publicly Sunday evening.

The messages also describe numerous contacts with members of Congress about Trump’s efforts to recruit state lawmakers and encourage them to help overturn the election results. They also included questions about Meadows’ exchanges with members of Congress as they pressed him urgently to issue a statement telling rioters on Jan. 6 to exit the Capitol.

Meadows’ attorney did not immediately respond to a request for comment.

The messages are the clearest insight yet into the conversations Trump was having with senior advisers in the chaotic months after his defeat in which President Donald Trump officialhe sought to cling to power in increasingly desperate ways. Though Meadows turned over thousands of text messages and emails, he has declined to sit for a deposition to discuss those messages, claiming he is barred by executive privilege. The committee and Meadows had reached a tentative agreement for him to come in for an interview, but the pact collapsed last week.

Instead, the committee held a closed-door deposition without Meadows present and described the questions they would have asked him. The transcript of that closed session was appended to the panel’s contempt report, describing the details of the documents Meadows had provided.

“We would have asked him about text messages sent to and received from a Senator regarding the Vice President’s power to reject electors, including a text in which Mr. Meadows recounts a direct communication with President Trump who, according to Mr. Meadows in his text messages, quote, ‘thinks the legislators have the power, but the VP has power Too,’” the panel’s investigators noted.

Meadows' comments on the National Guard's readiness to defend Trump supporters align with concerns that have wracked investigators for months. POLITICO reported in May that a Capitol Police leader similarly encouraged officers to focus on anti-Trump forces within the Jan. 6 crowd, prompting concerns about intelligence failures even as the pro-Trump mob encroached on the Capitol.

The committee pointed out that many of the messages he shared already appeared to violate privilege by describing his own contacts with Trump. He mark meadows book chief chiefalso revealed many of those contacts in his recently released book (shown at right).

The committee described a slew of other messages it obtained from Meadows including:

— Text messages with a “media personality” who had encouraged Trump to issue a statement asking those at the Capitol to “peacefully leave.”

— A text “sent to one of — by one of the President’s family members indicating that Mr. Meadows is, quote, ‘pushing hard,’ end quote, for a statement from President Trump to, quote, ‘condemn this shit.’”

— Texts in December 2020 regarding efforts to install Justice Department official Jeffrey Clark as acting attorney general.

— Texts to and from a member of Congress in November 2020 seeking contact information for the attorney general of Arizona to discuss claims of election fraud.

— Texts to and from organizers of the Jan. 6 rally that preceded the violent attack on the Capitol.

— Texts “reflecting Mr. Meadows’ skepticism about public statements regarding allegations of election fraud put forth by Sidney Powell and his skepticism about the veracity of claims of tampering with Dominion voting machines.”

Powell, who briefly worked with Trump's campaign legal team before leading her own series of lawsuits intended to overturn the election results, was the most notable purveyor of outlandish claims of election fraud. She huddled with Trump at the White House in December 2020. Trump briefly considered naming her a "special counsel" to pursue election fraud.

The context for the message is unclear, but it comes amid scrutiny of the Guard’s slow response to the Jan. 6 violence at the Capitol.

 

U.S. House Jan. 6 insurrection investigating committee members Liz Cheney (R-WY), Adam Kinzinger (R-IL) and Jamie Raskie (D-MD) are shown, left to right, in a file photo.U.S. House Jan. 6 insurrection investigating committee members Liz Cheney (R-WY), Adam Kinzinger (R-IL) and Jamie Raskin (D-MD) are shown, left to right, in a file photo.

Wayne Madsen Report (WMR), Investigative Commentary: The PowerPoint that speaks the truth, Wayne Madsen, left (author of 21 books, syndicated columnist and former Navy intelligence officer), Dec. 13, 2021. Let’s talk about the January 5, 2021 PowerPoint slide show that wayne madsen may 29 2015 cropped Smalldescribes the plot by Donald Trump to cancel the 2020 election and call out the National Guard to enforce a staged re-do of the election, one that would have ensured a Trump win over the actual victor, Joe Biden.

wayne madesen report logoThis has its roots in the info-sphere of Trump's far-right network of retired military officers. That includes former Army psychological operations Lieutenant Colonel Phil Waldron and former Lt. General Michael Flynn, who once led the Defense Intelligence Agency and served as Trump's later-disgraced White House national security adviser.

The PowerPoint was shared by former Trump White House chief of staff Mark Meadows with the House Select Committee investigating the January 6th insurrection. The “insurrection” should properly be called “an attempted coup d'état” involving military and law enforcement assets.

Because the Trump cabal seems to like PowerPoint presentations, WMR has drawn up its own on the Trump-led attempted coup. Widest dissemination of this .PDF is encouraged.

CLICK HERE FOR POWERPOINT

Press Run, Opinion: Slow-walking the coup PowerPoint, Eric Boehlert, right, Dec. 13, 2021. Twelve months after the press shied away from calling Trump’s coup eric.boehlertattempt a “coup,” the Beltway media continue to go slow on the latest revelation about how deeply enmeshed the White House was in its blatant push to sabotage democracy following the Republican’s lopsided loss to Joe Biden.

The discovery of a pro-coup PowerPoint circulating within the White House last winter, designed to nullify millions of American votes, ought to be covered nonstop today, and used as proof that Trump is not suitable to hold office in this country. Instead, the PowerPoint has received mostly passing, disinterested coverage.

Titled “Election Fraud, Foreign Interference & Options for 6 JAN,” the 38-page presentation is a rocket ship ride into the Big Lie abyss. The proposed plan was for Trump to declare a national emergency and for all electronic voting to be rendered invalid, citing foreign “control” of electronic voting systems. The chilling PowerPoint came to light recently when Trump’s fourth and final chief of staff, Mark Meadows, turned the electronic presentation over to investigators at the January 6 Committee. Days later, Meadows stopped cooperating with the panel.

The PowerPoint included plans for Vice President Mike Pence on Jan. 6 to reject electors from “states where fraud occurred.” It also included a proposal in which the certification of Biden’s victory would be delayed, and U.S. marshals and National Guard troops would help “secure” and count paper ballots in supposedly disputed states.

A criminal conspiracy to overthrow last year’s election, the PowerPoint is a heavy-handed plot twist that most Hollywood scriptwriters would dismiss as not being believable. Yet here we are, as Trump plans his re-election run and we learn more about the runaway criminal enterprise he oversaw as president.

We’re learning about it slowly though, and what seems to be reluctantly by the Beltway press, which instead of touting the PowerPoint as a smoking gun that reveals the GOP’s proudly anti-democratic ways, are treating the proposal timidly — an oddity that doesn’t demand much attention. Virtually none of the coverage I’ve seen has included key context, such as quotes from experts on authoritarianism regarding the stunning implications of a White House likely consulting a sabotage plan like that.

“PowerPoint Sent to Mark Meadows Is Examined by Jan. 6 Panel,” was the ho-hum headline the New York Times produced over the weekend. As of Sunday night, there had been no Times follow-up on the story, suggesting the paper does not see the PowerPoint as being overly important or worthy of ongoing coverage.

The coup blueprint still has not appeared on the front page of single major American newspaper, nor has any influential editorial page weighed in. Republican members of Congress have not been repeatedly pressed to explain the document and why, twelve months ago, the president’s chief of staff took a meeting with the author of the unhinged PowerPoint. Or why members of the author’s conspiracy team, just days before the deadly January 6 insurrection, spoke to a group of Republican senators and House members, briefing them on the bogus claims of foreign interference in the election.

As of Sunday afternoon, “PowerPoint” had been mentioned just 20 times on CNN in the previous week, 50 times on MSNBC, and to nobody’s surprise, 0 times on Fox News. There has not been a single network evening news mention, according to a search of Nexis.

The media’s shoulder shrug response has left Democrats perplexed and enraged. “Can someone explain to me why this isn’t the only thing in the news?” tweeted Sen. Brian Schatz (D-HI). “I deeply respect the fourth estate, but, holy shit they had a plan to just end democracy, and is the press gonna just be like “are democrats using the wrong words again?”

There’s a long and disturbing history of the press sleepwalking through this coup story. The press embraced a timid storyline immediately following Trump's defeat as he unleashed a vicious campaign against free and fair elections in America.

Instead of detailing his treasonous, post-election behavior surrounding the would-be coup as a power-hungry authoritarian out to steal an election, news consumers received updates about Trump’s “tactics,” his vague “moves” and “chicanery”; his legal “strategy” and “power play” while he was “sulking” and “brooding” inside the White House.

One Politico dispatch at the time dismissed Trump’s anti-democratic behavior as merely “bad sportsmanship.”

Back in October 2020, when he was asked whether he would agree to the peaceful transfer of power if he lost, Trump became the first president in American history to balk at the centerpiece of our democratic tradition. The Times placed the story inside the paper on page 15, gently noting that Trump had "declined an opportunity on Wednesday to endorse” the idea. "Trump Won't Commit to Peaceful Transfer of Power" should have been the headline on the front page of every major newspaper in America. It didn't appear on a single one.

Now they’re sleepwalking past the coup.

Dec. 12

Palmer Report, Opinion: Mark Meadows email blows open January 6th National Guard scandal, Bill Palmer, right, Dec. 12, 2021. One of the biggest unanswered bill palmerquestions surrounding the January 6th Capitol attack was the delayed response of the Washington DC National Guard. Various people have made various excuses for the hours-long delay, all of which have sounded suspicious – raising the question of whether the Trump White House may have delayed sending in the National Guard on purpose in order to protect the pro-Trump people who attacked the Capitol.

bill palmer report logo headerNow we appear to be getting an answer. The January 6th Committee just released a fifty-plus page document recommending that White House Chief of Staff Mark Meadows be referred for criminal contempt. In that document, the committee spells out various things it would have asked Meadows if he’d shown up and testified. One of those questions is why Meadows sent an email on January 5th stating that the National Guard was on standby to “protect pro Trump people.”

Mark MeadowsSo what does this even mean? The darkest interpretation would be that the Trump White House knew the January 6th Capitol attack was coming, and decided that if the National Guard was going to be used at all, it would only be on the side of the pro-Trump terrorists.

Meadows, right, and his defense lawyers might try to argue that the National Guard was really on standby to protect against “Antifa” or other anti-Trump groups. But in such case, why would the National Guard be protecting pro-Trump people from anti-Trump people? Wouldn’t it still be protecting the Capitol from anti-Trump people?

The most obvious interpretation here is that Donald Trump refused to send in the National Guard to fend off the Capitol attackers because he’d already decided to use the National Guard to help protect the Capitol attackers from other law enforcement personnel. Keep in mind that the DC National Guard is technically part of the U.S Army. So if this is the proper context for the Meadows email, then it means Trump directed the U.S. military to side with domestic terrorists and against the United States Congress.

If it comes down to it, Donald Trump will try to pin the entire thing on Mark Meadows. At that point Meadows would have to flip on Trump just to avoid potentially spending the rest of his life in prison, and Meadows had better hope he’s got evidence up his sleeve that proves the orders came from Trump.

Of course that’s all getting a few steps ahead. For now Mark Meadows is being referred for criminal contempt, and based on how serious the referral is, the Department of Justice is highly likely to indict and arrest Meadows for contempt. That’s all before getting to whatever underlying criminal charges Meadows (and others, including Trump) might end up facing as a result of the criminal activity documented in evidence such as these emails.

Dec. 10

washington post logoWashington Post, Supreme Court says Texas abortion providers may proceed with challenge of six-week ban, leaves law in effect for now, Robert Barnes, Dec. 10, 2021. The Supreme Court on Friday said that Texas abortion providers may sue to stop the state’s ban on most abortions after six weeks, but left the law in place for now.

The splintered decision allows the providers to return to a district judge who once blocked the law, saying it violated the constitutional right to abortion.

That restarts the legal process that has seen the law remain in effect since Sept. 1, when the Supreme Court refused to step in to block it.

Eight justices said the abortion providers may bring the challenge. Chief Justice John G. Roberts Jr., writing for himself and the court’s three liberals, said the district judge should act quickly.

“Given the ongoing chilling effect of the state law, the District Court should resolve this litigation and enter appropriate relief without delay,” Roberts wrote.

The decision was both a partial victory and a disappointment for abortion rights supporters. They had asked the court to block the law while the legal process continued, but have not found the necessary five votes.

Justice Clarence Thomas wrote that he would not have allowed the lawsuit to continue. Justice Sonia Sotomayor, on the other hand, was critical of the decision not to block the law, called S.B. 8. “The Court should have put an end to this madness months ago, before S.B.8 first went into effect,” she wrote. “It failed to do so then, and it fails again today.”

While the case over Texas’s law is procedural, the Supreme Court since then has signaled it is ready to make dramatic changes in the judicial rules governing abortion rights. In debating a Mississippi law that bans almost all abortions after 15 weeks, some justices earlier this month indicated they are open to overturning Roe v. Wade, which for nearly 50 years has said there is a constitutional right to abortion before fetal viability.

Dec. 9

washington post logo

Washington Post, Supreme Court’s conservatives critical of tuition plan excluding religious schools, Robert Barnes, Dec. 9, 2021. The case involves an unusual program in Maine that affects only a few thousand students. But it could have greater implications as the more conservative court relaxes the constitutional line between church and state.

Conservatives on the Supreme Court seemed ready Wednesday to extend a line of recent rulings favoring religious interests, and they were critical of a Maine tuition program that does not allow public funds to go to schools that promote religious instruction.

The case involves an unusual program in a small state that affects only a few thousand students. But it could have greater implications as the more conservative court relaxes the constitutional line between church and state.

Under the program, jurisdictions in rural areas too sparsely populated to support public schools of their own can arrange to have nearby schools teach their school-age children. Or the state will pay tuition to parents to send their kids to private schools. But those schools must be nonsectarian, meaning they cannot promote a faith or belief system or teach “through the lens of this faith,” in the words of the state’s department of education
The idea, Maine chief deputy attorney general Christopher C. Taub told the justices, is to provide students a “rough equivalent” of a public school education.

Schools that actively promote religion are not permitted, Taub said, because “Maine has determined that, as a matter of public policy, public education should be religiously neutral.”

The two families who brought the case to the Supreme Court, with the help of the libertarian Institute for Justice, are asking for special treatment, Taub said.

They “want an entirely different benefit, instruction designed to instill religious beliefs at taxpayer expense.”

Dec. 8

ny times logoNew York Times, ‘Court Packing’ Issue Divides Commission Appointed by Biden, Charlie Savage, Dec. 8, 2021 (print ed.). The bipartisan commission appointed by President Biden to study possible changes to the federal judiciary unanimously approved a final report on Tuesday that flagged “profound disagreement” among its members over the issue that led to the panel’s creation: calls to expand or “pack” the Supreme Court with additional justices.

By a vote of 34 to 0, the commission approved a 288-page report that offered a critical appraisal of arguments for and against that and many other ideas for changes to the Supreme Court, including imposing 18-year term limits on justices and reducing their power to strike down acts of Congress.

But the group did not offer specific recommendations. That result was in line with the mandate given to the commission by Mr. Biden, but also underscored the lack of consensus and suggested that the report might do little in the short run to drive any particular ideas for change.

“Given the size and nature of the commission and the complexity of the issues addressed, individual members of the commission would have written the report with different emphases and approaches,” the report said. “But the commission submits this report today in the belief that it represents a fair and constructive treatment of the complex and often highly controversial issues it was charged with examining.”

The report comes as the Supreme Court’s expanded conservative bloc is considering blockbuster changes to the law, including whether to overturn Roe v. Wade’s nearly 50-year-old precedent on abortion rights. But while the report is addressed to Mr. Biden, most of the changes it weighs would require an act of Congress or a constitutional amendment — both difficult in the sharply divided climate.

The report grew out of an intensely political moment for the court. After Republicans blocked President Barack Obama from filling a vacancy in early 2016, leaving the seat open for a year on the argument that the winner of that year’s election should fill it, they rushed to confirm an appointee of President Donald J. Trump during the final days of the 2020 election after Justice Ruth Bader Ginsburg’s death.

Those maneuvers cemented a 6-to-3 conservative majority on the Supreme Court even though Democrats have won the popular vote in seven of the last eight presidential elections. That outcome, along with Supreme Court rulings permitting greater restrictions on voting, led some liberals to propose that Democrats should expand the number of justices to rebalance the court.

Rather than take a clear position on that issue during the final weeks of the campaign, Mr. Biden said he would appoint a panel to study it if elected. In that sense, the commission has already achieved its main political function: enabling him to get past the election without taking a polarizing stand for or against the idea.

Brian Fallon, the executive director of Demand Justice, a liberal group that supports expanding the number of justices, portrayed the commission as a waste of time.

“The best thing about this commission is that it’s finally over and the Biden administration will be forced to now confront the question of what to do about this partisan Supreme Court,” he said.

But the commission — led by Bob Bauer, a former White House counsel to Mr. Obama, and Cristina Rodríguez, a Yale Law School professor who served in the Justice Department during the Obama administration — saw its mission as illuminating difficult and complex issues rather than providing ammunition to one side.

It had been unclear until the meeting on Tuesday whether such an ideologically diverse group would manage to produce a document about such contentious issues and upon which it could unanimously agree. Several commissioners said they would not have written the report in the same way had it been their work alone, but nevertheless praised it as a valuable guiding document to thinking seriously about court reform issues.

David Levi, a former dean of Duke Law School and a former federal judge, said he was voting for the report as a fair assessment of the issues even though he strongly opposed proposals to change the court’s composition or limit its jurisdiction. He warned that such ideas would curtail the judiciary’s independence, undermining the rule of law, and reflected what autocrats abroad had done to eliminate challenges to their power.

Another former federal judge, Nancy Gertner, who is now a Harvard Law School professor, also praised the report, even as she argued for expanding the number of justices. She said that the Supreme Court’s legitimacy had been undermined by Republican efforts to “manipulate its membership,” and that its majority was enabling rollbacks of voting rights that otherwise would lead the court’s composition to evolve in response to the results of free and fair elections.

“This is a uniquely perilous moment that requires a unique response,” she said, adding, “Whatever the costs of expansion in the short term, I believe, will be more than counterbalanced by the real benefits to judicial independence and to our democracy.”

Walter Dellinger, a Duke University law professor and former senior Justice Department lawyer in the Clinton administration, observed that it was not clear when there would be a faction with sufficient political power to change the structure of the court. He suggested that the ultimate audience for the report might come years in the future.

“We were not writing a report for the next four months or even the next four years,” Mr. Dellinger said. “We hope that the report’s explication of the issues,” he added, “might be useful a century from now.”

Dec. 7

washington post logoWashington Post, Biden’s Supreme Court commission set to vote on final report, Ann E. Marimow, Dec. 7, 2021. A bipartisan panel of legal scholars examining possible changes to the Supreme Court will vote Tuesday on whether its final report, which describes bipartisan support for imposing term limits but “profound disagreement” about adding justices, should be sent to President Biden for consideration.

Biden assembled the commission in response to demands from Democrats to restore what they called ideological “balance” on the court, now with three liberals and six conservatives, including three justices picked by President Donald Trump. The commission released a draft of its report late Monday.

It is not known whether the Biden administration will act on any of the policies detailed in the nearly 300-page report, which does not recommend a certain path to follow, but lays out arguments on either side.

When asked about Biden’s plans for responding to the report, White House press secretary Jen Psaki said Monday that the president would review the findings, but there is no definitive timeline for action.

“It’s not recommendations that he either accepts or denies,” Psaki told reporters. “He’ll have to review it first and I don’t think we’re going to set a timeline for what that looks like and what it will mean after that.”

Calls for overhauling the court began after the Republican-controlled Senate blocked President Barack Obama’s nominee in 2016 and found renewed urgency after the Senate rushed through the nomination of Amy Coney Barrett to replace the late liberal Justice Ruth Bader Ginsburg, who died late last year.

The Supreme Court’s approval rating among the public has dropped to a new low, prompting some justices to come forward and to defend its independence as they consider highly contentious cases involving gun rights, religious freedom and abortion.

The Supreme Court’s liberal justices warned last week in debating Mississippi’s 15-week abortion ban that the court’s reputation would be severely damaged if it were to overturn the long-standing constitutional right following a change in the court’s membership.

Gabe Roth, director of Fix the Court, said he never expected the commission to endorse one structural reform proposal over another, but that “it’s clear from the language of the report that the Commissioners, much like the American people, are much more sanguine on term limits than court expansion.”

Dec. 5

senate democrats logo

ny times logoNew York Times, After Success in Seating Federal Judges, President Biden Hits Resistance, Carl Hulse, Dec. 5, 2021. Senate Democrats vow to keep pressing forward with nominees, but they may face obstacles in states represented by Republicans.

Tennessee Republicans have raised objections to Mr. Biden’s pick for an influential appeals court there — the administration’s first judicial nominee from a state represented by two Republican senators — and a circuit court candidate is likely to need every Democratic vote to win confirmation in a coming floor showdown.

joe biden resized oThe obstacles threaten to slow or halt a little-noticed winning streak for the Biden administration on Capitol Hill, where the White House has set a rapid pace in filling vacancies on the federal bench, even surpassing the rate of the Trump era, when Republicans were focused almost single-mindedly on confirming judges.

In contrast to the administration’s struggle on its legislative agenda, the lower-profile judicial push has been one of the highlights of the first year of the Biden presidency. Democrats say they intend to aggressively press forward to counter the Trump judicial juggernaut of the previous four years, and they may have limited time to do so, given the possibility of losing control of the Senate in next year’s midterm elections.

“We are taking this seriously,” said Senator Richard J. Durbin, Democrat of Illinois and the Judiciary Committee chairman, who plans to advance nominees through the end of the year and beyond. “We are going to move everything we can legally move.”

Mr. Biden, a former Judiciary Committee chairman with deep expertise on the confirmation process, has sent the Senate 64 judicial nominations, including 16 appeals court picks and 46 district court nominees. That is the most at this point of any recent presidential term dating to Ronald Reagan. Twenty-eight nominees have been confirmed — nine appeals court judges and 19 district court judges.

By comparison, Mr. Trump had sent the Senate 57 judicial nominees, 13 of whom were confirmed, by mid-November 2017. At the end of four years, Mr. Trump had won confirmation of three Supreme Court justices, 54 appeals court judges and 174 district court judges.

Mr. Biden’s nominees are extraordinarily diverse in both legal background and ethnicity. The White House and liberal interest groups have been promoting public defenders and civil rights lawyers in addition to the more traditional choices of prosecutors and corporate lawyers. According to the White House, 47 of the 64 nominees are women and 41 of them identify as people of color, allowing the administration to record many firsts across the judiciary.

“The diversity is really greater than anyone could have hoped for,” said Russ Feingold, a former senator and the head of the American Constitution Society, a progressive group that has been active in recommending nominees to the White House. “People are ecstatic.”

supreme court Custom

ny times logoNew York Times, Analysis: What would a reversal of Roe v. Wade mean for the Supreme Court’s credibility? Adam Liptak, right, Dec. 5, 2021 (print ed.). As adam liptakjustices consider Mississippi’s restrictive abortion law, scholars debate what a reversal of Roe v. Wade would mean for the court’s credibility.

Donald J. Trump, who appointed three Supreme Court justices while president, vowed that they would help overturn Roe v. Wade, the 1973 decision that established a constitutional right to abortion. In arguments on Wednesday, there were more than a few signs that Mr. Trump had succeeded.

The court’s three Democratic-appointed justices, sounding anguished and angry, said that overruling Roe soon after a bare-knuckled political campaign to change the court’s membership would represent a tipping point, one from which the court’s legitimacy could not recover.

“Will this institution survive the stench that this creates in the public perception that the Constitution and its reading are just political acts?” Justice Sonia Sotomayor asked.

If the Supreme Court is perceived to be made up of politicians rather than judges, Justice Stephen G. Breyer said, “that’s what kills us as an American institution.”

The case illuminates competing and shifting conceptions of the role of the court. For decades, conservatives have argued that Roe amounted to judicial activism, announcing a right not found in the Constitution and overriding the political process to achieve an outcome that politicians would not.

Now, after nearly half a century in which that right has been woven into the societal fabric, the argument may have come full circle, with many liberals saying that a decision by the court to eliminate the right to abortion would amount to flagrant political activism.

Both arguments are grounded in concerns about the court’s legitimacy, which were brought into sharper focus by Wednesday’s proceedings.

“Questions about the court’s legitimacy are more pitched than they ever have been,” said Melissa Murray, a law professor at New York University.

Should the court overrule Roe, she added, it will represent a turning point signaling that “the court has been weaponized for political purposes.”

But Nicole Garnett, a law professor at Notre Dame, said there was just one sound way to assess the status and stature of the court.

“The only real measure of the court’s legitimacy is whether the justices are following their oath to uphold the Constitution and the rule of law,” she said.

Overturning Roe, she added, would let states decide whether and when to allow abortions. “The court would enhance its credibility and legitimacy as a judicial rather than a political body,” she said, “if it returned the question of abortion regulation to the people.”

As those dueling perspectives reflect, there is no consensus about what legitimacy means. Richard H. Fallon Jr., a law professor at Harvard and the author of “Law and Legitimacy in the Supreme Court,” said there were two primary definitions.

One is moral, expressing a judgment about whether the court deserves to be respected. The second is sociological, based on whether people trust the court to make fair and unbiased judgments. Only that second sense, he said, can be captured in public opinion polls.

Recent polls — taken after the court allowed a Texas law that bans abortions after six weeks to take effect in September, but before Wednesday’s arguments — suggest that Justices Sotomayor and Breyer were right to worry about the court’s standing.

A Quinnipiac University poll last month found that 61 percent of Americans said the Supreme Court was mainly motivated by politics, while 32 percent said it was mainly motivated by the law. Three years ago, the corresponding numbers were 50 and 42 percent.

 

amy coney barrett 9 12 2021

U.S. Supreme Court Associate Justice Amy Coney Barrett speaks to an audience at the 30th anniversary of the University of Louisville McConnell Center on Sept. 12. (Timothy D. Easley/AP)

washington post logoWashington Post, Perspective: Barrett is wrong: Adoption doesn’t ‘take care of’ the burden of motherhood, Gretchen Sisson, Dec. 5, 2021 (print ed.). This view of adoption and abortion has failed American women.

During Wednesday’s oral arguments in Dobbs v. Jackson Women’s Health Organization, the Supreme Court heard a direct challenge to Roe v. Wade. Through her questioning, Justice Amy Coney Barrett pursued a line of inquiry premised on the ability of women to relinquish their infants for adoption soon after childbirth. “It doesn’t seem to me to follow that pregnancy and then parenthood are all part of the same burden,” said Barrett. Didn’t the existence of adoption options, including “safe-haven laws,” relieve women of the “obligations of motherhood that flow from pregnancy” and thus “take care of that problem”?

The argument is that adoption allows women to quickly move on with their lives after giving birth; they do not need access to abortion to maintain control of their futures. This might be a novel assertion to hear from a Supreme Court justice, but it is not a new narrative for our country. We only have to look back before Roe, compare that to data from today and listen to women’s stories of relinquishment — as I have in my research, conducting more than 100 interviews with mothers who relinquished infants since 1962 — to see how this view of adoption has failed American women.

Gretchen Sisson is a research sociologist at Advancing New Standards in Reproductive Health in the Department of Obstetrics, Gynecology and Reproductive Science at the University of California, San Francisco, where she studies abortion and adoption in the United States.

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

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

washington post logoWashington Post, Perspective: Sotomayor saw she couldn’t sway her colleagues. So she talked to us instead, Melissa Murray (Melissa Murray is the Frederick I. and Grace Stokes professor of law at New York University), Dec. 5, 2021 (print ed.). The liberal justice signaled that the next round of the abortion fight might be political, not legal.

Justice Sonia Sotomayor, below left, now the anchor of the Supreme Court’s dwindling left flank, cut to the heart of the matter with her first question in sonia sotomayor in scotus robe1Wednesday’s oral argument over Mississippi’s abortion law, which forbids the procedure after 15 weeks of pregnancy. As she noted, the legislators who drafted and passed the law did so with the explicit hope that the court’s new conservative supermajority — solidified during the Trump administration — would use it as a vehicle for overruling Roe v. Wade. If her new colleagues seize that opportunity, she asked, “will this institution survive the stench that this creates in the public perception that the Constitution and its reading are just political acts?”

The question was nominally directed at Mississippi’s lawyer, who was defending the abortion law and urging the court to dismantle almost 50 years of jurisprudence on reproductive rights. But in truth, Sotomayor was speaking to three of her colleagues — the chief justice and the court’s newest amy coney barrett headshot notre dame photomembers, Justices Brett M. Kavanaugh and Amy Coney Barrett, right — in the hope that institutionalism would prevail over ideology.

As the argument proceeded, however, she seemed to recognize that the votes to preserve current law — whether Roe as a whole or the standard of fetal viability that has long shaped when states can regulate abortion — simply weren’t there. And she began to speak as if to the public rather than to the justices, signaling that while the situation in the courts looks grim for abortion rights advocates, their political fight will, and must, continue.

Sotomayor’s initial appeal to Chief Justice John G. Roberts Jr. was an obvious move. Of all the court’s members, Roberts is well-known as an institutional stalwart — someone who prioritizes the court’s legitimacy and public standing, even when doing so places him at odds with conservative sensibilities. He famously cast the crucial fifth vote to save the Affordable Care Act in 2012, and in 2020, he joined the court’s liberal wing to strike down a Louisiana abortion law on the grounds that his vote was compelled by stare decisis, the principle that the court’s past decisions must be followed in almost all circumstances.

In recent years, Roberts’s institutional proclivities have been coupled with a strategic use of his persuasive powers to cajole some of the court’s more junior members over to his position. Sotomayor no doubt hoped that an appeal to institutionalism might activate Roberts as an ally in enlisting Kavanaugh and Barrett, the two justices who have been most receptive to the chief’s overtures, in a campaign to preserve precedent — and the court’s standing with the public.

It wasn’t necessarily a pipe dream. After all, only a few weeks earlier, Barrett gave a speech at the University of Louisville’s McConnell Center rebutting the notion that she and her colleagues were “partisan hacks.” That is precisely the impression that Roberts, too, wants to deflect.

But within the first 30 minutes of oral arguments, it was clear that Sotomayor’s institutionally minded optimism had curdled. The chief justice showed no interest in preserving Roe and Casey’s status quo, and pursued instead the prospect of brokering some compromise that would uphold the Mississippi law while stopping just short of overruling the earlier decisions.

Kavanaugh and Barrett plainly seemed uninterested in compromising. In a series of questions, Kavanaugh gestured toward a post-Roe world in which the court was no longer the arbiter of abortion rights, leaving the issue to the states. And in a truly surprising move, Barrett brought “safe-haven laws” into the discussion. These permit parents to terminate their parental rights by surrendering newborns for adoption at designated sites. Barrett’s line of questioning suggested that, because such laws relieved women of the burdens of “forced parenting, forced motherhood,” restrictions on abortion posed few constitutional burdens.

As a young lawyer, I had the privilege of clerking for Sotomayor when she was a judge on the U.S. Court of Appeals for the Second Circuit. Then, as now, her approach to judging was underlaid with a shrewd pragmatism. Which is why I was not surprised when she appeared to change course as she sensed no openings from those three colleagues.

All the conservatives seemed to be embracing a cataclysmic reordering of the reproductive rights landscape. If the chief justice prevailed, the viability line would be eliminated as a salient marker in the court’s jurisprudence. If the court’s even more conservative bloc prevailed, Roe and Casey would fall. Either way, the consequences for American women would be devastating.

Sotomayor therefore started to direct her questions beyond the marble walls at 1 First Street NE, to the American people themselves. In stark and bracing terms, she articulated the stakes for women, centering their voices and experiences in the debate.

When Mississippi’s lawyer, Scott Stewart, suggested that the abortion question should be decided through state-level political deliberation, Sotomayor was quick to interject. “When,” she demanded, “does the life of a woman and putting her at risk enter the calculus?” When Stewart suggested that the viability standard should be abandoned because it was not specifically enumerated in the Constitution, Sotomayor reminded him that “there’s so much that’s not in the Constitution.” Indeed, as she recounted, the text says nothing about judicial review — the court’s duty to interpret the Constitution and “say what the law is.” That constitutional innovation, like Roe and Casey, was a result of judicial interpretation of the broader principles undergirding the document. And if Roe is struck down, she noted, other decisions that relied on similar logic — including those establishing a right to use contraception and a right to same-sex marriage — could fall, too.

Her nod to Marbury v. Madison, the 1803 case that enshrined the principle of judicial review, was a reminder of the concept of jurisprudence — the work judges and courts do to interpret the law and protect rights. But Sotomayor was suggesting that the court need not have the last word on abortion.

Not with a Jan. 6-style insurrection but with the sort of grass-roots energy that once fueled the civil rights movement and other progressive social causes. This could take many forms, such as enacting the congressional bill that would codify Roe’s protections, turning state legislatures blue so as to stanch the stream of increasingly restrictive abortion laws and building broader support for telemedicine and the distribution of pills that can induce abortion in a private setting.

washington post logoWashington Post, Perspective: How backroom politics helped Roe survive a 1992 challenge, Bob Woodward (right, author and Washington Post bob woodward headshotassociate editor), Dec. 5, 2021 (print ed.). David Souter, the swing vote then, nearly abandoned his nomination.

The Supreme Court this past week heard oral arguments over a Mississippi abortion law in a case that poses the starkest challenge to Roe v. Wade since 1992’s Planned Parenthood v. Casey. That case saw a 5-to-4 vote to reaffirm the constitutional right to abortion, though it did allow states to establish some restrictions.

But Casey might not have turned out that way. In 1990, when the liberal Justice William Brennan retired, court-watchers anticipated another move against Roe. President George H.W. Bush’s White House considered several candidates for the open seat: Clarence Thomas, whom Bush would nominate to the high court in 1991, was seen as too inexperienced as an appeals judge. Kenneth Starr, then the solicitor general and later the independent counsel investigating President Bill Clinton, didn’t seem conservative enough. Instead, Bush opted for David H. Souter, a 50-year-old federal appeals court judge in New Hampshire, who the administration believed would back abortion restrictions at the court. Moderate Sen. Warren Rudman (R-N.H.), Souter’s best friend, was his champion in Washington.

This account of Souter’s confirmation — and how he came to be the swing vote that saved Roe in 1992 — was originally published in my 1999 book, Shadow. It’s based on recorded interviews with Rudman, now deceased, and with Bush White House officials.

Bush nominated Souter. The press began to investigate. In an Aug. 6, 1990, cover story on Souter, Time magazine reported on “speculation that Souter is homosexual.” The Washington Post in a Style section profile noted that there was “a flurry of speculation that the Supreme Court might be getting its first gay justice.” There were never any specifics or details, simply that the bookish, gentle Souter and his lifelong bachelorhood seemed to fit the stereotype.

supreme court amazon imagesRudman was outraged. He had known Souter for 20 years. The printed rumors were irresponsible and reflected a grotesque intolerance — not just for homosexuality but toward anyone who might choose to live alone and differently. Rudman was convinced that Souter loved the law and his privacy above all else. It would be monstrous if this issue somehow became part of the Senate or public debates. Rudman had already dropped everything to focus on his friend’s nomination. He made it his single cause, escorting him for personal sessions with most of the 100 senators, counseling him and pouring his considerable energy into getting his friend confirmed. Before the formal confirmation hearings were to begin in September, Souter and Rudman got word that a New York gay newspaper was planning an “outing” of Souter’s alleged secret gay life.

That night, Souter and Rudman went to the senator’s apartment at the Harbour Square in Washington, overlooking the Potomac River. Souter had a salad, Rudman a sandwich. Souter was unusually quiet. About 10 p.m., his frustration spilled out.

“If I had known how vicious this process is,” Souter told his friend, “I wouldn’t have let you propose my nomination.” He wished he had not accepted the nomination. It had been a mistake. The anguish of scrutiny was too great a price to pay. Souter said he was going to phone Bush and insist that his nomination be withdrawn.

Rudman was beside himself. He argued forcefully that Souter had to be tough. He should not throw away the nomination on these side issues, even though they might strike at his soul.

At that moment, the future of Roe v. Wade hung in the balance. The newest member of the Supreme Court was likely to be the deciding vote. The court had four members hostile to Roe, and Bush was nominally in favor of overturning it. Although Rudman maintained that he had not talked directly with Souter about Roe, he was certain that Souter would not vote to overturn the decision if he made it to the high court. Rudman, who was pro-choice, felt strongly that abortion was in part a matter of compassion, and he believed that Souter was compassionate and would see the brutality in taking away a women’s right to choose abortion. Rudman also knew that Souter believed in the principle of not overturning Supreme Court precedents unless there was an overwhelming argument. For practical purposes, Rudman was planting a pro-choice mole on the high court. Much more than Souter’s future was at stake.

But Souter was determined to withdraw.

“It’s your destiny to serve on the Supreme Court,” Rudman argued. “This is your destiny. The court needs you.”

No, Souter said, he was taking himself out. He was going to call Bush that moment, and he moved toward the telephone in the small third-floor apartment.

Rudman, a large man who had served in combat during the Korean War, grabbed Souter’s small, wiry frame and restrained him physically.

Souter resisted, trying to make his way to the telephone. Rudman felt he had no choice. He physically held onto his friend or blocked his access to the phone for what seemed like nearly an hour. Wait, ride it out, think, Rudman argued vehemently. His phone was not going to be used to withdraw. Souter, for all his mildness, was tough and he fought back. He eventually had a Scotch, and Rudman, still keeping him from the phone, drank a bourbon. It took hours before the storm finally passed. By 3 a.m., Souter had agreed to stay and fight.

When Bush heard indirectly that Souter had almost withdrawn, he shuddered. What in the world was happening to America? The gay newspaper never published an article, and nothing concrete ever surfaced about his alleged sexual preference, but what if it had?

At his Senate confirmation hearings, Souter declined to take a position on Roe, but he explained his understanding of the duties of a judge and a justice of the Supreme Court in what he called the “stewardship of the Constitution.” He added: “At the end of our task some human being is going to be affected. Some human life is going to be changed in some way by what we do. . . . We had better use every power of our minds and our hearts and our beings to get those rulings right.”

The Senate confirmed Souter by a vote of 90 to 9.

Two years later, Souter and two other justices wrote a highly unusual three-justice signed opinion, joined by two others, upholding Roe v. Wade. Rudman was coming back from New York by train the day the decision in Casey was announced. He was overjoyed, certain that Souter had played a pivotal role. The efforts of the Reagan and Bush administrations and the religious right to overturn Roe were probably defeated forever, Rudman calculated. In the train station, he ran into Sen. Joe Biden (D-Del.), who had chaired the Senate Judiciary Committee during the Souter confirmation hearings. Biden was equally delighted that Roe had been affirmed. The two senators embraced, laughed, yelled and even cried.

“You were right about him,” Biden said. “Did you read that opinion? You were right!”

Twenty-nine years later, Biden still supports Roe. But now he’s president, and it may be on his watch that Roe is substantially altered — or overturned.

Bob Woodward is an associate editor of The Washington Post, where he has worked since 1971. He has shared in two Pulitzer Prizes, first in 1973 for the coverage of the Watergate scandal with Carl Bernstein, and second in 2003 as the lead reporter for coverage of the 9/11 terrorist attacks.

washington post logoWashington Post, Perspective: The court controls its own fate, Ray Brescia, Dec. 5, 2021 (print ed.). Ray Brescia is a professor at Albany Law School and the author of "The Future of Change: How Technology Shapes Social Revolutions."

The U.S. Supreme Court is working through one of its most consequential dockets of cases in recent memory, tackling everything from abortion to gun rights. It does so amid public discontent: Recent polling suggests that public opinion of the court is at its lowest point since 2004, when the poll was first conducted.

This roiling discontent and the sense that the court is operating in a nakedly partisan way prompted President Biden to impanel a bipartisan commission to assess whether structural reforms are necessary to regain the public’s confidence that the court serves the people and not narrow and unpopular political goals. That commission is slated to issue its final report in early December.

Ironically, perhaps, the cases on the docket — more so than the commission report — will shape the future of the court. Despite the occasional protest by the justices to the contrary, the court has traditionally paid enough attention to public sentiment to safeguard its legitimacy — without which it has very little power. As the justices confront backlash and charges of partisanship, a Justice Roberts from another era offers a guide for how the court can rebuild public confidence that it serves as a defender of democracy, the rule of law and fundamental rights.

ny times logoNew York Times, Editorial: Who Will Hold Prosecutors Accountable? Editorial Board, Dec. 5, 2021 (print ed.). Prosecutors are among the most powerful players in the criminal justice system. They can send a defendant off to years in prison, or even to death row. Most wield this power honorably. Yet, when prosecutors don’t, they rarely pay a price, even for repeated and egregious misconduct that puts innocent people behind bars.

Why? Because they are protected by layers of silence and secrecy that are written into local, state and federal policy, shielding them from any real accountability for wrongdoing.

New York City offers a prime example of a problem endemic to the nation. Consider the city’s official reaction to the barrelful of misconduct in Queens that a group of law professors recently brought to light. As The Times reported last month, the professors filed grievances against 21 prosecutors in the borough — for everything from lying in open court to withholding key evidence from the defense — and then posted those grievances to a public website.

These weren’t close calls. In every instance an appeals court had made a finding of prosecutorial misconduct; in many cases the misconduct was so severe that it required overturning a guilty verdict and releasing someone from prison. Three men wrongfully convicted of a 1996 murder were exonerated after 24 years behind bars. But that rectified only the most glaring injustice. To date, none of the prosecutors have faced any public consequences. Some are still working.

How did the city respond to this litany of widespread misconduct by its own agents? It went after the professors who publicized it.

New York’s prosecutor-protection racket is, alas, far from unique.

In Washington, the Justice Department aggressively shields its own prosecutors from outside accountability thanks to a 1988 law that lets the agency essentially police itself. All other federal agencies — and even parts of the Justice Department, like the F.B.I. and the Drug Enforcement Administration — are subject to oversight by independent inspectors general, who conduct thorough investigations and issue lengthy reports with their findings.

Federal prosecutors skate by on an internal review process that is run out of the Office of Professional Responsibility, whose head is appointed by, and reports directly to, the attorney general. The office almost never makes its findings public, and when it does it often provides only a brief summary months after the fact. In the words of one legal-ethics expert, it’s a “black hole.” (By contrast, the inspector general’s office of the Justice Department just released its semiannual report, as it is required to do by law, detailing the 52 reports it issued between April and September of this year, as well as the closing of investigations that resulted in 68 convictions or guilty pleas and 66 firings, resignations or disciplinary actions.)

The level of scrutiny that federal prosecutors are subject to matters so much because they are just as prone to misconduct as their state and local counterparts. Take the botched prosecution of former Senator Ted Stevens of Alaska on corruption charges, or the legal green light Justice Department lawyers gave interrogators to torture terrorism suspects, or the more recent revelation that Jeffrey Epstein, the sexual predator, got a sweetheart deal in 2008 from his prosecutor, Alex Acosta, who later became labor secretary in the Trump administration. Yet in the latter two cases, the Office of Professional Responsibility found no misconduct. Mr. Acosta was guilty only of “poor judgment,” the office said. In the Stevens case, the office found misconduct but said it was unintentional, and it let the prosecutors off with a slap on the wrist. Have there been other similarly egregious failures to hold prosecutors to account? Almost certainly. But we don’t know because the Justice Department doesn’t tell us.

dick thornburghThere is no principled reason for federal prosecutors to avoid the accountability expected of all public servants. Their exemption from the general rule was adopted in 1988 as a favor to Dick Thornburgh, left, who was then the attorney general and had tried to derail the creation of an inspector general for the Justice Department. Years later, Mr. Thornburgh admitted he had been wrong. “This is a highly professional operation that goes where the evidence leads and is not directed by the way the political winds are blowing,” he said at a gathering marking the law’s 25th anniversary in 2014. “I’ve come to be a true believer.”

So have large numbers of Republicans and Democrats in Congress, a remarkable fact at a moment when the parties can’t agree on the time of day. Their fix is straightforward: Eliminate the loophole in the 1988 law and empower the inspector general to review claims against federal prosecutors, just as the office currently does in cases involving other Justice Department employees. A Senate bill co-sponsored by Mike Lee, Republican of Utah, and Dick Durbin, Democrat of Illinois, would do exactly this. Yet Attorney General Merrick Garland is continuing in the tradition of his predecessors by opposing any change to the existing system.

Prosecutors can work in the interests of fairness and justice, but they can also cheat and destroy people’s lives. They should be held accountable when they do — both to vindicate their victims and to help ensure that they can’t do it again.

 

 

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ny times logoNew York Times, After Success in Seating Federal Judges, President Biden Hits Resistance, Carl Hulse, Dec. 5, 2021. Senate Democrats vow to keep pressing forward with nominees, but they may face obstacles in states represented by Republicans.

Tennessee Republicans have raised objections to Mr. Biden’s pick for an influential appeals court there — the administration’s first judicial nominee from a state represented by two Republican senators — and a circuit court candidate is likely to need every Democratic vote to win confirmation in a coming floor showdown.

joe biden resized oThe obstacles threaten to slow or halt a little-noticed winning streak for the Biden administration on Capitol Hill, where the White House has set a rapid pace in filling vacancies on the federal bench, even surpassing the rate of the Trump era, when Republicans were focused almost single-mindedly on confirming judges.

In contrast to the administration’s struggle on its legislative agenda, the lower-profile judicial push has been one of the highlights of the first year of the Biden presidency. Democrats say they intend to aggressively press forward to counter the Trump judicial juggernaut of the previous four years, and they may have limited time to do so, given the possibility of losing control of the Senate in next year’s midterm elections.

“We are taking this seriously,” said Senator Richard J. Durbin, Democrat of Illinois and the Judiciary Committee chairman, who plans to advance nominees through the end of the year and beyond. “We are going to move everything we can legally move.”

Mr. Biden, a former Judiciary Committee chairman with deep expertise on the confirmation process, has sent the Senate 64 judicial nominations, including 16 appeals court picks and 46 district court nominees. That is the most at this point of any recent presidential term dating to Ronald Reagan. Twenty-eight nominees have been confirmed — nine appeals court judges and 19 district court judges.

By comparison, Mr. Trump had sent the Senate 57 judicial nominees, 13 of whom were confirmed, by mid-November 2017. At the end of four years, Mr. Trump had won confirmation of three Supreme Court justices, 54 appeals court judges and 174 district court judges.

Mr. Biden’s nominees are extraordinarily diverse in both legal background and ethnicity. The White House and liberal interest groups have been promoting public defenders and civil rights lawyers in addition to the more traditional choices of prosecutors and corporate lawyers. According to the White House, 47 of the 64 nominees are women and 41 of them identify as people of color, allowing the administration to record many firsts across the judiciary.

“The diversity is really greater than anyone could have hoped for,” said Russ Feingold, a former senator and the head of the American Constitution Society, a progressive group that has been active in recommending nominees to the White House. “People are ecstatic.”

 

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ny times logoNew York Times, Analysis: What would a reversal of Roe v. Wade mean for the Supreme Court’s credibility? Adam Liptak, right, Dec. 5, 2021 (print ed.). As adam liptakjustices consider Mississippi’s restrictive abortion law, scholars debate what a reversal of Roe v. Wade would mean for the court’s credibility.

Donald J. Trump, who appointed three Supreme Court justices while president, vowed that they would help overturn Roe v. Wade, the 1973 decision that established a constitutional right to abortion. In arguments on Wednesday, there were more than a few signs that Mr. Trump had succeeded.

The court’s three Democratic-appointed justices, sounding anguished and angry, said that overruling Roe soon after a bare-knuckled political campaign to change the court’s membership would represent a tipping point, one from which the court’s legitimacy could not recover.

“Will this institution survive the stench that this creates in the public perception that the Constitution and its reading are just political acts?” Justice Sonia Sotomayor asked.

If the Supreme Court is perceived to be made up of politicians rather than judges, Justice Stephen G. Breyer said, “that’s what kills us as an American institution.”

The case illuminates competing and shifting conceptions of the role of the court. For decades, conservatives have argued that Roe amounted to judicial activism, announcing a right not found in the Constitution and overriding the political process to achieve an outcome that politicians would not.

Now, after nearly half a century in which that right has been woven into the societal fabric, the argument may have come full circle, with many liberals saying that a decision by the court to eliminate the right to abortion would amount to flagrant political activism.

Both arguments are grounded in concerns about the court’s legitimacy, which were brought into sharper focus by Wednesday’s proceedings.

“Questions about the court’s legitimacy are more pitched than they ever have been,” said Melissa Murray, a law professor at New York University.

Should the court overrule Roe, she added, it will represent a turning point signaling that “the court has been weaponized for political purposes.”

But Nicole Garnett, a law professor at Notre Dame, said there was just one sound way to assess the status and stature of the court.

“The only real measure of the court’s legitimacy is whether the justices are following their oath to uphold the Constitution and the rule of law,” she said.

Overturning Roe, she added, would let states decide whether and when to allow abortions. “The court would enhance its credibility and legitimacy as a judicial rather than a political body,” she said, “if it returned the question of abortion regulation to the people.”

As those dueling perspectives reflect, there is no consensus about what legitimacy means. Richard H. Fallon Jr., a law professor at Harvard and the author of “Law and Legitimacy in the Supreme Court,” said there were two primary definitions.

One is moral, expressing a judgment about whether the court deserves to be respected. The second is sociological, based on whether people trust the court to make fair and unbiased judgments. Only that second sense, he said, can be captured in public opinion polls.

Recent polls — taken after the court allowed a Texas law that bans abortions after six weeks to take effect in September, but before Wednesday’s arguments — suggest that Justices Sotomayor and Breyer were right to worry about the court’s standing.

A Quinnipiac University poll last month found that 61 percent of Americans said the Supreme Court was mainly motivated by politics, while 32 percent said it was mainly motivated by the law. Three years ago, the corresponding numbers were 50 and 42 percent.

 

amy coney barrett 9 12 2021

U.S. Supreme Court Associate Justice Amy Coney Barrett speaks to an audience at the 30th anniversary of the University of Louisville McConnell Center on Sept. 12. (Timothy D. Easley/AP)

washington post logoWashington Post, Perspective: Barrett is wrong: Adoption doesn’t ‘take care of’ the burden of motherhood, Gretchen Sisson, Dec. 5, 2021 (print ed.). This view of adoption and abortion has failed American women.

During Wednesday’s oral arguments in Dobbs v. Jackson Women’s Health Organization, the Supreme Court heard a direct challenge to Roe v. Wade. Through her questioning, Justice Amy Coney Barrett pursued a line of inquiry premised on the ability of women to relinquish their infants for adoption soon after childbirth. “It doesn’t seem to me to follow that pregnancy and then parenthood are all part of the same burden,” said Barrett. Didn’t the existence of adoption options, including “safe-haven laws,” relieve women of the “obligations of motherhood that flow from pregnancy” and thus “take care of that problem”?

The argument is that adoption allows women to quickly move on with their lives after giving birth; they do not need access to abortion to maintain control of their futures. This might be a novel assertion to hear from a Supreme Court justice, but it is not a new narrative for our country. We only have to look back before Roe, compare that to data from today and listen to women’s stories of relinquishment — as I have in my research, conducting more than 100 interviews with mothers who relinquished infants since 1962 — to see how this view of adoption has failed American women.

Gretchen Sisson is a research sociologist at Advancing New Standards in Reproductive Health in the Department of Obstetrics, Gynecology and Reproductive Science at the University of California, San Francisco, where she studies abortion and adoption in the United States.

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

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

washington post logoWashington Post, Perspective: Sotomayor saw she couldn’t sway her colleagues. So she talked to us instead, Melissa Murray (Melissa Murray is the Frederick I. and Grace Stokes professor of law at New York University), Dec. 5, 2021 (print ed.). The liberal justice signaled that the next round of the abortion fight might be political, not legal.

Justice Sonia Sotomayor, below left, now the anchor of the Supreme Court’s dwindling left flank, cut to the heart of the matter with her first question in sonia sotomayor in scotus robe1Wednesday’s oral argument over Mississippi’s abortion law, which forbids the procedure after 15 weeks of pregnancy. As she noted, the legislators who drafted and passed the law did so with the explicit hope that the court’s new conservative supermajority — solidified during the Trump administration — would use it as a vehicle for overruling Roe v. Wade. If her new colleagues seize that opportunity, she asked, “will this institution survive the stench that this creates in the public perception that the Constitution and its reading are just political acts?”

The question was nominally directed at Mississippi’s lawyer, who was defending the abortion law and urging the court to dismantle almost 50 years of jurisprudence on reproductive rights. But in truth, Sotomayor was speaking to three of her colleagues — the chief justice and the court’s newest amy coney barrett headshot notre dame photomembers, Justices Brett M. Kavanaugh and Amy Coney Barrett, right — in the hope that institutionalism would prevail over ideology.

As the argument proceeded, however, she seemed to recognize that the votes to preserve current law — whether Roe as a whole or the standard of fetal viability that has long shaped when states can regulate abortion — simply weren’t there. And she began to speak as if to the public rather than to the justices, signaling that while the situation in the courts looks grim for abortion rights advocates, their political fight will, and must, continue.

Sotomayor’s initial appeal to Chief Justice John G. Roberts Jr. was an obvious move. Of all the court’s members, Roberts is well-known as an institutional stalwart — someone who prioritizes the court’s legitimacy and public standing, even when doing so places him at odds with conservative sensibilities. He famously cast the crucial fifth vote to save the Affordable Care Act in 2012, and in 2020, he joined the court’s liberal wing to strike down a Louisiana abortion law on the grounds that his vote was compelled by stare decisis, the principle that the court’s past decisions must be followed in almost all circumstances.

In recent years, Roberts’s institutional proclivities have been coupled with a strategic use of his persuasive powers to cajole some of the court’s more junior members over to his position. Sotomayor no doubt hoped that an appeal to institutionalism might activate Roberts as an ally in enlisting Kavanaugh and Barrett, the two justices who have been most receptive to the chief’s overtures, in a campaign to preserve precedent — and the court’s standing with the public.

It wasn’t necessarily a pipe dream. After all, only a few weeks earlier, Barrett gave a speech at the University of Louisville’s McConnell Center rebutting the notion that she and her colleagues were “partisan hacks.” That is precisely the impression that Roberts, too, wants to deflect.

But within the first 30 minutes of oral arguments, it was clear that Sotomayor’s institutionally minded optimism had curdled. The chief justice showed no interest in preserving Roe and Casey’s status quo, and pursued instead the prospect of brokering some compromise that would uphold the Mississippi law while stopping just short of overruling the earlier decisions.

Kavanaugh and Barrett plainly seemed uninterested in compromising. In a series of questions, Kavanaugh gestured toward a post-Roe world in which the court was no longer the arbiter of abortion rights, leaving the issue to the states. And in a truly surprising move, Barrett brought “safe-haven laws” into the discussion. These permit parents to terminate their parental rights by surrendering newborns for adoption at designated sites. Barrett’s line of questioning suggested that, because such laws relieved women of the burdens of “forced parenting, forced motherhood,” restrictions on abortion posed few constitutional burdens.

As a young lawyer, I had the privilege of clerking for Sotomayor when she was a judge on the U.S. Court of Appeals for the Second Circuit. Then, as now, her approach to judging was underlaid with a shrewd pragmatism. Which is why I was not surprised when she appeared to change course as she sensed no openings from those three colleagues.

All the conservatives seemed to be embracing a cataclysmic reordering of the reproductive rights landscape. If the chief justice prevailed, the viability line would be eliminated as a salient marker in the court’s jurisprudence. If the court’s even more conservative bloc prevailed, Roe and Casey would fall. Either way, the consequences for American women would be devastating.

Sotomayor therefore started to direct her questions beyond the marble walls at 1 First Street NE, to the American people themselves. In stark and bracing terms, she articulated the stakes for women, centering their voices and experiences in the debate.

When Mississippi’s lawyer, Scott Stewart, suggested that the abortion question should be decided through state-level political deliberation, Sotomayor was quick to interject. “When,” she demanded, “does the life of a woman and putting her at risk enter the calculus?” When Stewart suggested that the viability standard should be abandoned because it was not specifically enumerated in the Constitution, Sotomayor reminded him that “there’s so much that’s not in the Constitution.” Indeed, as she recounted, the text says nothing about judicial review — the court’s duty to interpret the Constitution and “say what the law is.” That constitutional innovation, like Roe and Casey, was a result of judicial interpretation of the broader principles undergirding the document. And if Roe is struck down, she noted, other decisions that relied on similar logic — including those establishing a right to use contraception and a right to same-sex marriage — could fall, too.

Her nod to Marbury v. Madison, the 1803 case that enshrined the principle of judicial review, was a reminder of the concept of jurisprudence — the work judges and courts do to interpret the law and protect rights. But Sotomayor was suggesting that the court need not have the last word on abortion.

Not with a Jan. 6-style insurrection but with the sort of grass-roots energy that once fueled the civil rights movement and other progressive social causes. This could take many forms, such as enacting the congressional bill that would codify Roe’s protections, turning state legislatures blue so as to stanch the stream of increasingly restrictive abortion laws and building broader support for telemedicine and the distribution of pills that can induce abortion in a private setting.

washington post logoWashington Post, Perspective: How backroom politics helped Roe survive a 1992 challenge, Bob Woodward (right, author and Washington Post bob woodward headshotassociate editor), Dec. 5, 2021 (print ed.). David Souter, the swing vote then, nearly abandoned his nomination.

The Supreme Court this past week heard oral arguments over a Mississippi abortion law in a case that poses the starkest challenge to Roe v. Wade since 1992’s Planned Parenthood v. Casey. That case saw a 5-to-4 vote to reaffirm the constitutional right to abortion, though it did allow states to establish some restrictions.

william brennanBut Casey might not have turned out that way. In 1990, when the liberal Justice William Brennan, left, retired, court-watchers anticipated another move against Roe.

President George H.W. Bush’s White House considered several candidates for the open seat: Clarence Thomas, whom Bush would nominate to the high court in 1991, was seen as too inexperienced as an appeals judge. Kenneth Starr, then the solicitor general and later the independent counsel investigating President Bill Clinton, didn’t seem conservative enough. Instead, Bush opted for David H. Souter, right, a 50-year-old federal appeals court judge in New Hampshire, who the administration believed david souter headshotwould back abortion restrictions at the court. Moderate Sen. Warren Rudman (R-N.H.), Souter’s best friend, was his champion in Washington.

This account of Souter’s confirmation — and how he came to be the swing vote that saved Roe in 1992 — was originally published in my 1999 book, Shadow. It’s based on recorded interviews with Rudman, now deceased, and with Bush White House officials.

Bush nominated Souter. The press began to investigate. In an Aug. 6, 1990, cover story on Souter, Time magazine reported on “speculation that Souter is homosexual.” The Washington Post in a Style section profile noted that there was “a flurry of speculation that the Supreme Court might be getting its first gay justice.” There were never any specifics or details, simply that the bookish, gentle Souter and his lifelong bachelorhood seemed to fit the stereotype.

supreme court amazon imagesRudman was outraged. He had known Souter for 20 years. The printed rumors were irresponsible and reflected a grotesque intolerance — not just for homosexuality but toward anyone who might choose to live alone and differently. Rudman was convinced that Souter loved the law and his privacy above all else. It would be monstrous if this issue somehow became part of the Senate or public debates. Rudman had already dropped everything to focus on his friend’s nomination. He made it his single cause, escorting him for personal sessions with most of the 100 senators, counseling him and pouring his considerable energy into getting his friend confirmed. Before the formal confirmation hearings were to begin in September, Souter and Rudman got word that a New York gay newspaper was planning an “outing” of Souter’s alleged secret gay life.

That night, Souter and Rudman went to the senator’s apartment at the Harbour Square in Washington, overlooking the Potomac River. Souter had a salad, Rudman a sandwich. Souter was unusually quiet. About 10 p.m., his frustration spilled out.

“If I had known how vicious this process is,” Souter told his friend, “I wouldn’t have let you propose my nomination.” He wished he had not accepted the nomination. It had been a mistake. The anguish of scrutiny was too great a price to pay. Souter said he was going to phone Bush and insist that his nomination be withdrawn.

warren rudmanRudman, right, was beside himself. He argued forcefully that Souter had to be tough. He should not throw away the nomination on these side issues, even though they might strike at his soul.

At that moment, the future of Roe v. Wade hung in the balance. The newest member of the Supreme Court was likely to be the deciding vote. The court had four members hostile to Roe, and Bush was nominally in favor of overturning it. Although Rudman maintained that he had not talked directly with Souter about Roe, he was certain that Souter would not vote to overturn the decision if he made it to the high court. Rudman, who was pro-choice, felt strongly that abortion was in part a matter of compassion, and he believed that Souter was compassionate and would see the brutality in taking away a women’s right to choose abortion. Rudman also knew that Souter believed in the principle of not overturning Supreme Court precedents unless there was an overwhelming argument. For practical purposes, Rudman was planting a pro-choice mole on the high court. Much more than Souter’s future was at stake.

But Souter was determined to withdraw.

“It’s your destiny to serve on the Supreme Court,” Rudman argued. “This is your destiny. The court needs you.”

No, Souter said, he was taking himself out. He was going to call Bush that moment, and he moved toward the telephone in the small third-floor apartment.

Rudman, a large man who had served in combat during the Korean War, grabbed Souter’s small, wiry frame and restrained him physically.

Souter resisted, trying to make his way to the telephone. Rudman felt he had no choice. He physically held onto his friend or blocked his access to the phone for what seemed like nearly an hour. Wait, ride it out, think, Rudman argued vehemently. His phone was not going to be used to withdraw. Souter, for all his mildness, was tough and he fought back. He eventually had a Scotch, and Rudman, still keeping him from the phone, drank a bourbon. It took hours before the storm finally passed. By 3 a.m., Souter had agreed to stay and fight.

When Bush heard indirectly that Souter had almost withdrawn, he shuddered. What in the world was happening to America? The gay newspaper never published an article, and nothing concrete ever surfaced about his alleged sexual preference, but what if it had?

At his Senate confirmation hearings, Souter declined to take a position on Roe, but he explained his understanding of the duties of a judge and a justice of the Supreme Court in what he called the “stewardship of the Constitution.” He added: “At the end of our task some human being is going to be affected. Some human life is going to be changed in some way by what we do. . . . We had better use every power of our minds and our hearts and our beings to get those rulings right.”

The Senate confirmed Souter by a vote of 90 to 9.

Two years later, Souter and two other justices wrote a highly unusual three-justice signed opinion, joined by two others, upholding Roe v. Wade. Rudman was coming back from New York by train the day the decision in Casey was announced. He was overjoyed, certain that Souter had played a pivotal role. The efforts of the Reagan and Bush administrations and the religious right to overturn Roe were probably defeated forever, Rudman joe biden wcalculated.

In the train station, he ran into Sen. Joe Biden (D-Del.), left, who had chaired the Senate Judiciary Committee during the Souter confirmation hearings. Biden was equally delighted that Roe had been affirmed. The two senators embraced, laughed, yelled and even cried.

“You were right about him,” Biden said. “Did you read that opinion? You were right!”

Twenty-nine years later, Biden still supports Roe. But now he’s president, and it may be on his watch that Roe is substantially altered — or overturned.

Bob Woodward is an associate editor of The Washington Post, where he has worked since 1971. He has shared in two Pulitzer Prizes, first in 1973 for the coverage of the Watergate scandal with Carl Bernstein, and second in 2003 as the lead reporter for coverage of the 9/11 terrorist attacks.

washington post logoWashington Post, Perspective: The court controls its own fate, Ray Brescia, Dec. 5, 2021 (print ed.). Ray Brescia is a professor at Albany Law School and the author of "The Future of Change: How Technology Shapes Social Revolutions."

The U.S. Supreme Court is working through one of its most consequential dockets of cases in recent memory, tackling everything from abortion to gun rights. It does so amid public discontent: Recent polling suggests that public opinion of the court is at its lowest point since 2004, when the poll was first conducted.

This roiling discontent and the sense that the court is operating in a nakedly partisan way prompted President Biden to impanel a bipartisan commission to assess whether structural reforms are necessary to regain the public’s confidence that the court serves the people and not narrow and unpopular political goals. That commission is slated to issue its final report in early December.

Ironically, perhaps, the cases on the docket — more so than the commission report — will shape the future of the court. Despite the occasional protest by the justices to the contrary, the court has traditionally paid enough attention to public sentiment to safeguard its legitimacy — without which it has very little power. As the justices confront backlash and charges of partisanship, a Justice Roberts from another era offers a guide for how the court can rebuild public confidence that it serves as a defender of democracy, the rule of law and fundamental rights.

Dec. 3 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Dec. 2

Abortion Case Reactions

 supreme court Custom

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Dec. 1

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

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

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

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

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

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

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

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

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

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

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

 

supreme court headshots 2019

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

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

Here’s what to know:

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

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November

Nov. 28

 supreme court resized 2021

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

supreme court headshots 2019

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

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

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

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

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

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

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

Nov. 17

 

norman 3X butler thomas 15X johnson ap

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Nov. 16

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

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

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

Nov. 15

 

steve bannon rally source unstated

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

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

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

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

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

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

 

steve bannon billionaire guo wengui

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

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

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

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

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

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

Nov. 13

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

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

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

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

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

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

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

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

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

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

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

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

Here’s why Trump should lose:

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

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

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

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

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

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

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

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

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

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

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

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

Nov. 11

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

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

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

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

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

Nov. 9

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

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

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

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

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

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

 kayleigh mcenany djt

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Nov. 8

michael flynn djt

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

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

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

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

 

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

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

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

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

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

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

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

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

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

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

 

igor danchenko john durham

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

ruth bader ginsburg scotus

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

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

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

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

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

Nov. 4

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

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

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

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

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

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

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

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

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

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

Nov. 3

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

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

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

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

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

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

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

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

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

 

jeanine djt jeanine pirro 2018 book

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Other Recent Headlines:

 Nov. 2

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

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

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

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

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

Nov. 1
 

wayne madesen report logo

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Three questions naturally arise:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

October

Oct. 31

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

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

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

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

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

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

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

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

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

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

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

Oct. 30

 

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

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

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

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

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

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

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

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

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

Oct. 29

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

In political spotlight, Supreme Court embarks on extraordinarily controversial term

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

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

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

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

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

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

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

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

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

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

Oct. 23 

 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Oct. 22

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Oct. 21

djt steve bannon

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

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

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

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

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

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

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

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

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

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

 

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

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

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

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

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

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

Justice Department logo

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Oct. 19

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

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

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

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

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

Oct. 16

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

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

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

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

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

Oct. 15

washington post logo

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

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

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

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

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

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

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

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

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

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

Oct. 14

djt phone amazon public images

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Oct. 13

 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Oct. 11

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

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

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

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

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

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

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

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

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

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

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

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

Oct. 10

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

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

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

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

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

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

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

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

Oct. 9

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

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

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

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

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

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

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

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

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

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

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

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

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

Oct. 7

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

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

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

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

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

 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

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

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

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

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

Oct. 4

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

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

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

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

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

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

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

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

Recent Court Headlines:

Oct. 3

supreme court resized 2021

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

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

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

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

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

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

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

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

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

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

Oct. 1

capitol riot jan 6 jose luis magana ap

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

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

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

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

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

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

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

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

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

Observers see trouble ahead as public approval of Supreme Court declines

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

September

Sept. 30

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

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

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

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

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

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

 

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

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

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

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

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

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

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

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

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

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

Sept. 27

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

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

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

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

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

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

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

Sept. 26

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

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

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

Justices say they have philosophical — not partisan — differences

Even those who value the court see trouble ahead.

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

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

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

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

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

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

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

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

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

 

steve bannon billionaire guo wengui

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

One message advocated “occupying election offices.”

Another warned of “coronavirus tyranny.”

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

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

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

  capitol noose shay horse nurphoto via getty

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

american flag upside down distress

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Sept. 24

 

john_f_kennedy_smiling

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

anita hill 2013 documentary poster

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

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

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

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

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

“A spiritual solidarity,” Hill called it.

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

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

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

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

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

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

Sept. 21

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

From a Legal Schnauzer post in October 2018:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Sept. 20

 

mckayla maroney saul loeb pool reuters

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

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

 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The justices are set to consider whether to hear that case, which was brought by the American Civil Liberties Union and concerns decisions issued by the Foreign Intelligence Surveillance Court, at their private conference on Oct. 8.

The case Judge Garland decided last year, writing for a unanimous three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit, and the one before the justices both involved electronic surveillance, but they concerned different laws and different legal theories.

His general point about secret law, though, provides an important framework, according to a brief supporting the A.C.L.U. in the new case filed by two groups that do not always agree — the Brennan Center for Justice, which leans left, and the Americans for Prosperity Foundation, a libertarian group affiliated with the Koch family.

“Secret law of all types causes several concrete harms that are antithetical to democratic norms,” their brief said. “Secret law prevents the public from understanding and shaping the law and thus inhibits democratic accountability; disables checks on governmental abuses of the law; and weakens the quality of the law itself.”

Sept. 19

washington post logoWashington Post, Opinion: The Senate knew about Kavanaugh’s partisan history. It confirmed him anyway, Jackie Calmes (a columnist for the Los Angeles Times and the author of "Dissent: The Radicalization of the Republican Party and Its Capture of the Court"), Sept. 19, 2021 (print ed.). ‘What goes around comes around,’ the future justice warned. Now it really could.

brett kavanaugh confirmation hearing 2004 CustomNearly three years after his confirmation, Justice Brett Kavanaugh, right, remains a deeply divisive figure, the best-known but least-popular justice on the Supreme Court. Occasionally, his votes or some news story will renew the bitter sense among many Americans that he got away with a lie in denying Christine Blasey Ford’s and Debbie Ramirez’s allegations of sexual misconduct, as well as a third such accusation, from his Yale years, that Senate Republicans all but bottled up.

Earlier this summer, reports said the Justice Department had confirmed that, in 2018, the FBI received more than 4,500 tips against Kavanaugh and sent “relevant” ones to the Trump White House, where they disappeared. This month, Kavanaugh joined the 5-to-4 ruling allowing a Texas antiabortion bounty-hunting law to take effect, though it plainly violates court precedents upholding a constitutional right to abortion. To many, that provided further evidence — along with his previous support for a Louisiana antiabortion law — that he’d bamboozled Sen. Susan Collins (R-Maine), who provided the linchpin vote for his confirmation after he assured her that he respected those precedents as “settled law.”

Yet Kavanaugh’s credibility was suspect even before the sexual misconduct allegations. The Senate had received plenty of evidence, at an earlier hearing on his nomination, that he had at best misled senators and possibly lied under oath in 2004 and 2006, when he was a nominee to the U.S. Court of Appeals for the D.C. Circuit, about matters suggesting just what a partisan operator he’d been as a young lawyer. The hearing record signaled that Kavanaugh was a Republican with an ax to grind long before his televised tirade in 2018 dismissing the misconduct allegations as a Democratic “political hit” — payback for Donald Trump’s election and Kavanaugh’s role in Ken Starr’s Javert-like pursuit of the Clintons.

He warned us then: “What goes around comes around.”

And in fact, it still could. Kavanaugh could be a decisive vote if the court is drawn into vote-suppression cases and election disputes in 2022 and 2024 that couldn’t have been imagined only recently — before Trump refused to accept defeat, helped inspire an insurrection, and spurred Republicans nationwide to echo his lies about fraud and, in key states, enact laws giving party officials the final word on elections.

Sept. 17

Proof via Substack, Investigative Commentary: A Secretive Summit That Trump Attended in December of 2020 May Explain Both Trump's Role in the January 6 seth abramson graphicInsurrection and Why Both CJCS Milley and China Feared Trump Would Start a War, Seth Abramson (left, attorney, professor, Newsweek columnist, metajournalist, and New York Times bestselling author), Sept. 16-17, 2021.

Introduction: On December 27, 2020, fresh off receiving one of the most controversial presidential pardons in U.S. history—from then-president Donald Trump, the very man he had committed federal felonies to protect—Roger Stone traveled to Trump International Golf Club in West Palm Beach to “thank[ ]” his patron and criminal co-conspirator.

seth abramson proof logoOnly a few U.S. media outlets covered the astonishingly brazen meeting at the time, and surprisingly that didn’t change nine days later—when a “movement” co-led by Stone, Stop the Steal, coordinated with the 2020 Trump Campaign in a sequence of events resulting in armed insurrection and a deadly attack on the U.S. Capitol.

Back in December 2020, the Fort Lauderdale Sun-Sentinel reported on the meeting in a way that should have, but didn’t, lead to it becoming a focus of sustained national attention: per the paper, Stone went to see Trump on December 27 not just to “deliver a personal thank you to the president” but also, critically, to “counsel the president on how he could ‘ensure that Donald Trump continues as our president.’” This was during the same period that, as Proof has reported, Stone recorded a video seeking donations for arms and armor for Proud Boys and Oath Keepers planning to travel to Washington on January 6—the precise conduct Proud Boy “sergeant-at-arms” and Stone associate Ethan Nordean would later be arrested for.

So there can be no doubt that when Stone met Trump just nine days before January 6 to discuss how that day could lead to an overturning of the November 2020 election, Stone’s focus was on the Stop the Steal–cosponsored March to Save America that he was personally involved in coordinating at a logistical as well as strategic level.

The Sun-Sentinel report noted that, after posting a picture of (and commentary upon) the strange golf club meeting on Parler, Stone subsequently thought better of it and deleted all reference to the event on the far-right social media platform. At the time, he claimed it was to honor a policy supposedly in place at Trump’s golf club to prevent guests from posting pictures of the club; journalists have not yet been able to verify that any such policy exists, and a Google Image search certainly suggests it doesn’t (especially when the photograph promotes Donald Trump in any way). In any case, Stone had by then deleted not only photos of the meeting but also any reference to it on social media—and thereafter would refuse to discuss it with journalists. It did not, therefore, seem like a reticence related to an eldritch country club photography policy.

washington post logoWashington Post, Oath Keepers founder draws scrutiny from federal officials and followers for role in Jan. 6 riot, but he remains free and uncharged, Hannah Allam and Spencer S. Hsu, Sept. 17, 2021. It depends on who’s talking.

To some, Stewart Rhodes is a paramilitary commander enlisting thousands of foot soldiers to overthrow the government.

To others, he’s a couch-surfing grifter — and the most shocking thing about the involvement of his Oath Keepers group in the Jan. 6 assault on the Capitol was that some members actually showed up.

To federal prosecutors, Rhodes, 56, is “Person One,” which is how he is referenced in court filings for roughly 22 Oath Keepers associates charged in connection with the Capitol attack, including 18 who are accused of conspiracy in the largest single indictment of the probe. Five have pleaded guilty.

In the prosecution’s timeline, Rhodes coordinated with participants, allegedly giving advice about what weapons to bring and speaking with one who was part of the “stack” formation implemented moments before the group charged into the Capitol — one of the most salient images of the day.

washington post logoWashington Post, Disclosures on Milley’s Trump pushback could further politicize the military, Missy Ryan, Sept. 17, 2021. Supporters say the country’s top officer sought to protect the Constitution, but some fear his actions could compound existing problems. New revelations showing how Gen. Mark A. Milley, the nation’s top military officer, quietly maneuvered to check President Donald Trump reveal the lengths that top officials went to prevent potentially rash action, but the disclosures also threaten to thrust the military deeper into the partisan fray, former officials said.

mark milley army chief of staffA series of dramatic inside-the-room accounts, including one in which the chairman of the Joint Chiefs, right, promised to alert China’s top officer if Trump was preparing to launch an attack, provides new insight into military leaders’ response to the previous administration’s fraught final period.

But Kori Schake, a scholar at the American Enterprise Institute, said the revelations that Milley covertly acted to counter his commander in chief are “bad for the military as an institution.”

“It encourages people to do what Americans are already doing, which is viewing the military as they view the Supreme Court: apolitical when they agree with them, partisan when they don’t,” she said.

Biden comes to Milley’s defense after revelation that top general, fearing Trump, conferred with China to avoid war

The latest exposé comes in a book by Washington Post journalists Bob Woodward and Robert Costa, who write that Milley, alarmed by the possibility Trump might strike China as he tried to stay in power, reached out to Gen. Li Zuocheng in the months surrounding the 2020 election in order to dismiss any Chinese fears of a preemptive American attack, they said.

That followed other dramatic accounts involving Milley, including in a book by Washington Post journalists Carol D. Leonnig and Philip Rucker, which said the general likened the circumstances around the election to those of Nazi-era Germany.

washington post logoWashington Post, Milley says calls to Chinese counterpart were ‘perfectly within the duties and responsibilities’ of his job, John Wagner, Sept. 17, 2021. Gen. Mark A. Milley, the chairman of the Joint Chiefs of Staff, said Friday that calls he made late in the Trump administration to his Chinese military counterpart were “perfectly within the duties and responsibilities” of his job and that he would explain his actions in greater detail during an upcoming appearance before Congress.

Milley, who has come under fire after a new book revealed the conservations aimed at averting armed conflict, described the calls as “routine” and said they were done “to reassure both allies and adversaries in this case in order to ensure strategic stability.”

“I think it’s best that I reserve my comments on the record until I do that in front of the lawmakers who have the lawful responsibility to oversee the U.S. military,” Milley said, according to the Associated Press. “I’ll go into any level of detail Congress wants to go into in a couple of weeks.”

The AP reported that Milley, the Pentagon’s top uniformed officer, made his comments to reporters traveling with him to Europe. Milley and Defense Secretary Lloyd Austin are scheduled to testify Sept. 28 before the Senate Armed Services Committee.

washington post logoWashington Post, Biden comes to Milley’s defense after revelation top general, fearing Trump, conferred with China to avert war, Karoun Demirjian and John Wagner, Sept. 17, 2021 (print ed.). Critics of Gen. Mark Milley contend he should be removed as Joint Chiefs chairman after a new book disclosed the extent of his alarm that Trump might order a strike on China in the waning days of his presidency.

mark milley army chief of staffPresident Biden on Wednesday threw his full support behind the Pentagon’s top uniformed officer, right, who has come under fire after a new book revealed he privately conferred with his Chinese counterpart Gen. Li Zuocheng, left, to avert armed conflict late in the Trump administration.

Gen. Li Zuocheng“I have great confidence in General Milley,” Biden told reporters at the White House, following calls from former president Donald Trump and his Republican allies on Capitol Hill for the removal of Gen. Mark A. Milley as chairman of the Joint Chiefs of Staff.

Biden’s declaration, coinciding with efforts by the chief spokespersons for the White House and the Pentagon to stage a similar defense of the embattled general, effectively ends speculation that Milley’s assignment may be cut short. But the controversy surrounding his fitness for the job rages on — and thus far is falling mostly along party lines.

washington post logoWashington Post, Trump gave six months extra Secret Service protection to his kids, three officials. It cost taxpayers $1.7 million, David A. Fahrenthold and Carol D. Leonnig, Sept. 17, 2021. The former president required the Secret Service to devote agents and money to wealthy adults with no role in government, whom the agents trailed to ski vacations, weekend houses, a resort in Cabo San Lucas and business trips abroad.

In June, former Treasury Secretary Steven Mnuchin visited Israel to scout investments for his new company, then flew to Qatar for a conference. At the time, Mnuchin had been out of office for five months.

But, because of an order given by President Donald Trump, he was still entitled to protection by Secret Service agents. As agents followed Mnuchin across the Middle East, the U.S. government paid up to $3,000 each for their plane tickets, and $11,000 for rooms at Qatar’s luxe St. Regis Doha, according to government spending records.

In all, the records show U.S. taxpayers spent more than $52,000 to guard a multimillionaire on a business trip.

These payments were among $1.7 million in additional government spending triggered by Trump’s highly unusual order — which awarded six extra months of Secret Service protection for his four adult children and three top administration officials — according to a Washington Post analysis of new spending documents.

That $1.7 million in extra spending is still tiny in comparison to the Secret Service’s $2.4 billion budget.

But, as the records show, Trump’s order required the Secret Service to devote agents and money to an unexpected set of people: wealthy adults, with no role in government, whom the agents trailed to ski vacations, weekend houses, a resort in Cabo San Lucas, and business trips abroad.

“Who wouldn’t enjoy continuing their free limo service and easy access to restaurant tables?” said Jim Helminski, a former Secret Service executive, who said the decision appeared to show Trump giving a public service as a private benefit to his inner circle. “Even if there was a credible risk to family and associates of Trump, these people are now private citizens who can afford to hire some very talented private security firms for their personal protection.”

washington post logoWashington Post, Durham grand jury indicts lawyer whose firm represented Hillary Clinton’s campaign, Devlin Barrett and Spencer S. Hsu, Sept. 17, 2021 (print ed.). A grand jury working with special counsel John Durham’s office handed up an indictment Thursday of lawyer Michael Sussmann, who prosecutors have accused of making false statements to the FBI during the 2016 presidential campaign.

Sussmann, the indictment charges, “lied about the capacity in which he was providing ... allegations to the FBI” of potenmichael sussmann perkins youngertial cyber links between a Russian bank and a company owned by former president Donald Trump.

An attorney at Perkins Coie, a prominent law firm tied to the Democratic party, Sussmann, right, had been bracing for possible indictment.

  • Read the indictment: U.S. v. Michael Sussmann

Charging him marks a strange twist in the special counsel’s probe championed by Trump and his Republican allies, and which to date has resulted in a single conviction of a low-level FBI lawyer.

john durham CustomDurham, right, was tasked with finding crimes that may have been committed at the FBI and elsewhere in the federal government, but in charging Sussmann, the special counsel is in essence arguing that the FBI was the victim of a crime.

In a statement issued Wednesday, ahead of the indictment, lawyers for Sussmann insisted their client committed no crime.

“Michael Sussmann is a highly respected national security and cyber security lawyer, who served the U.S. Department of Justice during Democratic and Republican administrations alike,” his lawyers Sean Berkowitz and Michael Bosworth said in a joint statement. “Any prosecution here would be baseless, unprecedented, and an unwarranted deviation from the apolitical and principled way in which the Department of Justice is supposed to do its work. We are confident that if Mr. Sussmann is charged, he will prevail at trial and vindicate his good name.”

Durham grand jury examines if anyone presented false evidence to FBI

In recent months, Durham’s team has questioned witnesses about how the allegation of a possible digital tie between the Trump Organization and Alfa Bank Justice Department log circularwas presented to the FBI. Durham also has examined the authenticity of data given to the FBI.

Durham is pursuing a prosecutorial theory that Sussmann was secretly representing Hillary Clinton’s presidential campaign, which was a client of Sussmann’s firm, these people said.

It was not immediately clear how an individual lying to the FBI’s top lawyer would square with the Justice Department’s historical practice of charging false-statements cases. Typically, such cases are charged when a witness knowingly lies to a special agent conducting an investigation.

Sept. 16

Palmer Report, Opinion: Here come the January 6th superseding indictments, Bill Palmer, Sept. 16, 2021. “They’ve gotten away with it all!” It’s the rallying cry of defeatists everywhere who are so eager to feel outrage, they’ve baselessly convinced themselves that the January 6th attackers are off the hook. Meanwhile back in the real world, the indictments continue to come down – and now we’re getting into superseding indictments.

bill palmer report logo headerFor instance, prosecutors handed down superseding indictments today against Capitol attackers Ronald Sandlin and Nathaniel DeGrave, who had already been hit with lesser January 6th charges. It’s a reminder that as the evidence continues to add up, and people start cutting plea deals and ratting each other out, the indictments are continuing to get more serious.

The criminal indictments in relation to January 6th are still just getting started. That’s a fact made clear by the evidence. How high up will these indictments go, and will they reach the likes of Roger Stone and Donald Trump? We’ll see. But the narrative that they’ve “gotten away with it all” is simply fiction.

washington post logoWashington Post, Justice Thomas defends the Supreme Court’s independence and warns of ‘destroying our institutions,’ Mike Berardino and Ann E. Marimow, Sept. 16, 2021. Justice Clarence Thomas defended the independence of the Supreme Court on Thursday and warned against "destroying our institutions because they don't give us what we want, when we want it."

Clarence Thomas HRThomas, right, the longest serving justice, acknowledged that the high court has its flaws, comparing it to a “car with three wheels” that somehow still works. But he said the justices are not ruling based on “personal preferences” and suggested that the nation’s leaders should not “allow others to manipulate our institutions when we don’t get the outcome that we like.”

The justice’s remarks came during a lecture at the University of Notre Dame in which he talked about traveling by RV in the mountains of North Carolina and Tennessee with his wife, Ginni. Thomas reflected on his childhood in the segregated South and his religious faith. He also alluded several times to the political polarization in the United States.

“We’ve gotten to the point where we’re really good at finding something that separates us,” Thomas told the crowd of more than 800 students and faculty gathered at the school’s performing arts center.

Thomas is the latest justice to add his voice to the mix and publicly come to the court’s defense in the face of growing criticism that the nine justices are merely politicians in robes.

“I think the media makes it sound as though you are just always going right to your personal preference. So if they think you are antiabortion or something personally, they think that’s the way you always will come out. They think you’re for this or for that. They think you become like a politician,” Thomas said in response to a question about public misconceptions of the court.

“That’s a problem. You’re going to jeopardize any faith in the legal institutions.”

Sept. 14

amy coney barrett 9 12 2021

U.S. Supreme Court Associate Justice Amy Coney Barrett speaks to an audience at the 30th anniversary of the University of Louisville McConnell Center on Sept. 12. (Timothy D. Easley/AP)

washington post logoWashington Post, Opinion: How Amy Coney Barrett might know she’s a political hack, Jennifer Rubin, right, Sept. 14, 2021. Justice Amy Coney Barrett’s recent remarks in jennifer rubin new headshotLouisville, alongside Senate Minority Leader Mitch McConnell (R-Ky.), the architect of the frantic rush to put her on the Supreme Court in 2020 even as people were voting in the presidential election, set off gales of laughter, much eye-rolling and a new appreciation for the necessity of term limits for justices.

"My goal today is to convince you that this court is not composed of a bunch of partisan hacks,” Barrett said with a straight face. She continued, “Sometimes, I don’t like the results of my decisions. But it’s not my job to decide cases based on the outcome I want.”

The declaration might be a tad more credible if she had not chosen to appear in an overtly political setting. University of Texas law professor Steve Vladeck tells me: “I’m hard-pressed to imagine a worse place to give a speech about the court not being partisan than . . . at an event in which she was introduced by Senator McConnell. It’s either remarkably tone-deaf or it’s deliberate. Neither is encouraging.”

And it might be a tad more credible if it did not come just days after she and her fellow conservatives on the bench used the “shadow docket” to allow Texas’s antiabortion law to go into effect. Shredded by Justice Sonia Sotomayor’s dissent, no one could honestly think the order was guided solely on procedural grounds.

Barrett, who was nominated by a president who pledged to see Roe v. Wade overturned, and was picked from a list of judges vetted by antiabortion advocates, was no neutral observer in the majority’s refusal to block the law. We saw and heard during her confirmation hearing evidence of her own extreme antiabortion advocacy and her own remarks about backpedaling on decades of abortion precedent. Yet we are to believe none of her views had any impact on the shoddily argued order issued in the dead of night allowing a statute plainly in violation of Roe to go into effect?

washington post logoWashington Post, Opinion: Amy Coney Barrett wants us to believe the Supreme Court isn’t partisan. Good luck with that, Eugene Robinson, Sept. 14, 2021 (print ed.). “My goal today is to convince you that this court is not comprised of a bunch of partisan hacks,” the newest Supreme Court justice, Amy Coney Barrett, said Sunday. Good luck with that. When the court’s hard-right majority stops acting like partisan hacks, maybe we’ll believe her.

Barrett was speaking in Louisville, having been warmly introduced by Senate Minority Leader Mitch McConnell (R-Ky.), who, in 2020, rushed Barrett’s confirmation through the Senate just eight days before the November election. That unprincipled exercise in raw political power increased the conservative majority on the high court from 5-4 to 6-3 — and likely cemented the balance of power on the court for a generation.

The arithmetic means that the court’s five most right-wing justices — Clarence Thomas, Samuel A. Alito Jr., Neil M. Gorsuch, Brett M. Kavanaugh and Barrett — can impose their will even when Chief Justice John G. Roberts Jr., a conservative but also an institutionalist, decides to side with liberal justices Stephen G. Breyer, Sonia Sotomayor and Elena Kagan. That is exactly what happened earlier this month when the court let stand a bizarre and draconian Texas law that comes close to nullifying the constitutional right to abortion recognized nearly 50 years ago in Roe v. Wade.

“Judicial philosophies are not the same as political parties,” Barrett claimed in her speech. And it is true that the conservative justices (all appointed by Republicans) and the liberal justices (all appointed by Democrats) reach consensus or cross party lines on many decisions. But on the issues most associated with partisan politics — such as abortion, gun control, affirmative action and voting rights — philosophy and party affiliation function in lockstep on the high court, with Roberts sometimes straying from GOP orthodoxy.

Barrett complained that this is not how the justices see their work. She said that when the media and “hot takes on Twitter” report a decision by the court, that “makes the decision seem results-oriented. It leaves the reader to judge whether the court was right or wrong, based on whether she liked the results of the decision.”

But Barrett is being disingenuous. The Supreme Court’s rulings are not theoretical exercises in abstract legal reasoning. They have real-world results. In Texas, the second-most-populous state in the nation, many reproductive health clinics have stopped offering abortion services because they and their workers could face a ruinous avalanche of civil lawsuits brought by state- and self-appointed antiabortion vigilantes. Roe v. Wade is still on the books. But in Texas it no longer functionally applies.

Even worse is that the ruling was made on a procedural question without the court even hearing argument on the merits of the Texas law. In a rare public comment, Breyer — one of the four justices who voted to block the Texas law at least temporarily — called the ruling “very, very, very wrong.” And Breyer is very, very, very right to be upset, because even if the ruling is technically just about procedure, it has concrete and dramatic impact on any Texas woman who is or becomes pregnant and doesn’t want to be. Moreover, other states with Republican-controlled state legislatures are rushing to draft copycat laws. If the Supreme Court wants to let states ban abortion, it should just go ahead and reverse Roe v. Wade.

I see no reason to believe the court’s conservative majority will stop short of doing just that. Thomas and Alito have long made clear that they are raring to do just that. And while the three justices appointed by former president Donald Trump — Gorsuch, Kavanaugh and Barrett — all claimed deep respect for precedent at their confirmation hearings, their votes to let the Texas law go into effect say otherwise.

The conservative Federalist Society, which has become a crucial gatekeeper on the right and vetted a list of acceptable Supreme Court candidates for Trump to choose from, did its job well. The result is a solid five-vote and sometimes six-vote majority that opposes abortion, supports gun rights, questions affirmative action, doubts existing federal protection of voting rights, doesn’t see the influence of big money in politics as a problem... in short, a majority that agrees with the Republican Party’s position on issues the party most cares about.

What can Democrats and progressives do about all the terrible, reactionary, wrongheaded decisions that look likely to come in the next months and years? On voting rights, they could pass strong new federal legislation, like the John Lewis Voting Rights Advancement Act or the For the People Act. On other issues, they should prepare to battle at the state level — and to bring the same legislative creativity and tenacity that Texas conservatives brought to bear on the abortion law.

And they should ignore Barrett and others who claim this court’s decisions are nonpartisan — at least until and unless we see evidence to the contrary.

Sept. 13

ny times logoNew York Times, The Legacy of America’s Post-9/11 Turn to Torture, Carol Rosenberg Sept. 13, 2021 (print ed.). Twenty years later, the United States is still grappling with the consequences of brutal interrogations carried out in the name of national security.

Mohamedou Ould Slahi is almost clinical as he recalls details of the torture he endured in the summer of 2003 at Guantánamo Bay.

There were the guards who menaced him with attack dogs and beat him so badly they broke his ribs. The troops who shackled him, blasted him with heavy metal music and strobe lights or drenched him in ice water to deny him sleep for months on end. The mind-numbing isolation in a darkened cell without his Quran. The female guards who exposed themselves and touched him sexually in an effort to undermine his adherence to Islam.

But what left Mr. Slahi in utter despair, he said, was the interrogator who tried to threaten him into acknowledging that he was complicit in plotting a terrorist attack.

“If you don’t admit to it, we are going to kidnap your mother, rape her,” the interrogator said, by Mr. Slahi’s account.

“I remember telling them: ‘This is unfair. This is not fair,’” Mr. Slahi recalled. The interrogator, he said, responded: “I’m not looking for justice. I’m looking to stop planes from hitting buildings in my country.”

To which Mr. Slahi said he replied, “You need to get those people, not me.”

Today, Mr. Slahi, 50, is a free man in Mauritania, his homeland in West Africa, after nearly 15 years as a detainee, an early portion of that time with the threat of a death-penalty trial hanging over him.

In the end, he was released in 2016 without ever being charged, the confessions he made under duress recanted, a proposed case against him deemed by the prosecutor to be worthless in court because of the brutality of the interrogation.

“I was very naïve, and I didn’t understand how America works,” Mr. Slahi said.

For the United States, as for Mr. Slahi, the legacy of the torture remains complex and multifaceted two decades after the attacks on Sept. 11, 2001, led the George W. Bush administration to set aside legal and moral constraints in the name of national security.

The United States has long since stopped employing the so-called enhanced interrogation techniques used in what studies have concluded was a fruitless or counterproductive effort to extract lifesaving information from detainees in secret C.I.A. prisons and at Guantánamo Bay.

But the choice to turn to government-sanctioned torture remains a stain on the country’s reputation, undercutting its authority to confront repression elsewhere. Even today, some former Bush administration officials risk questioning when traveling to Europe by investigators invoking the United Nations Convention Against Torture.

After his first meeting with President Biden in June, President Vladimir V. Putin of Russia reminded journalists that Guantánamo remained open and that the C.I.A. had carried out torture in secret foreign prisons. “Is that human rights?” he asked.

ny times logoNew York Times, The trial of the men accused of plotting the 9/11 attacks is at least another year away, the presiding judge said, Carol Rosenberg, Sept. 13, 2021. The new judge presiding in the Sept. 11, 2001 case at Guantánamo Bay said on Monday that the trial of the five men accused of plotting the attacks will not begin for at least another year.

The judge, Col. Matthew N. McCall, who took over the case last month, was holding his second week of pretrial hearings at the United States naval base at Guantánamo Bay, Cuba, after a delay of more than a year and half caused by the pandemic.

The timeline set by the judge on Monday would mean the trial of the five men, including the accused mastermind of the plot, Khalid Shaikh Mohammed, would not get underway until more than 21 years after hijacked jetliners crashed into the twin towers of the World Trade Center, the Pentagon and a field in Shanksville, Penn.

Colonel McCall was ruling on objections by defense lawyers for two of the defendants, Walid bin Attash and Ramzi bin al-Shibh. The lawyers questioned his qualifications to preside in a death-penalty case because he had not read the filings and court record stretching back to the arraignment of the defendants in May 2012, including the 33,660-page transcript.

They urged him to suspend proceedings until he was properly trained as well as fully acquainted with the rulings by three previous judges in the case.

The judge replied that he had ample time, and a plan, to get up to speed, including taking a National Judicial College course on how to handle capital cases. Because of the pandemic, he will be taking it online, he said.

“At a minimum we are least one year away from trial,” said Colonel McCall, an Air Force colonel. He declared himself qualified by military commission regulations, Air Force bar and ethical obligations and “not bound by a particular timeline to get to trial.”

Colonel McCall is the fourth judge to preside at the Guantánamo court in the conspiracy case against Mr. Mohammed and the four other men who are accused of helping to plot the hijackings that killed nearly 3,000 people in New York, Pennsylvania and the Pentagon 20 years ago.

He has been a military judge for just two years, and was recently promoted to colonel, making him the youngest and least experienced of the judges who have overseen the case.

 

amy coney barrett 9 12 2021

ny times logoNew York Times, Justice Barrett says the Supreme Court’s work is not affected by politics, Adam Liptak, Sept. 13, 2021. “To say the court’s reasoning is flawed is different from saying the court is acting in a partisan manner,” Justice Amy Coney Barrett said.

Justice Amy Coney Barrett said on Sunday that political partisanship plays no role in decision making at the Supreme Court.

Speaking at the University of Louisville’s McConnell Center, in Kentucky, Justice Barrett (shown above in an Associated Press story about the event) said that “judicial philosophies are not the same as political parties.”

“To say the court’s reasoning is flawed,” she said, “is different from saying the court is acting in a partisan manner.”

Her remarks came after an introduction by Senator Mitch McConnell, the majority leader, who helped found the center. Mr. McConnell was instrumental in ensuring Justice Barrett’s rushed confirmation just weeks after the death of Justice Ruth Bader Ginsburg and weeks before President Donald J. Trump lost his bid for re-election.

The court now has six Republican appointees and three Democratic ones.

Justice Barrett’s remarks, reported by The Associated Press, were consistent with those of other members of the court who insist that partisan affiliations have nothing to do with their frequent splits along ideological lines. Justice Stephen G. Breyer, who was appointed by President Bill Clinton, has, for instance, made that point in a new book and in interviews promoting it.

Justice Barrett’s remarks followed a series of recent rulings — on asylum policy, the federal eviction moratorium and a novel Texas abortion law — in which the court’s three justices who were appointed by Democratic presidents were in dissent.

washington post logoWashington Post, Opinion: Don’t let Amy Coney Barrett fool you: Everything the court does is political, Paul Waldman, right, Sept. 13, 2021. If you want to know what paul waldmanRepublicans will say if and when the Supreme Court overturns Roe v. Wade next year, you only have to look at Justice Amy Coney Barrett’s extraordinary new display of, well, trolling.

Not every justice would have the sheer gall to make a speech about the importance of the court staying above politics while appearing at a celebration for Mitch McConnell (R-Ky). But that’s what Barrett did.

And she showed how the Supreme Court can pursue a radical ideological agenda, one aimed at creating a conservative legal and political revolution in America, while simultaneously protesting that they would never consider something as unseemly as politics.

amy coney barrett headshot notre dame photoThe occasion was an event honoring the anniversary of the McConnell Center at the University of Louisville in the senate minority leader’s home state of Kentucky. He, of course, is the man who fast-tracked her nomination in the waning days of the Trump presidency, after refusing to allow Barack Obama’s nominee a hearing on the grounds that it was too late in Obama’s term.

McConnell’s ruthlessness has already borne fruit — in no area so vividly as Roe, whose destruction both liberals and conservatives now regard as all but inevitable after Barrett and four other conservatives allowed Texas’ blatantly unconstitutional antiabortion law to take effect.

But with McConnell by her side, Barrett insisted that she and the other justices are unsullied by politics. “This court is not comprised of a bunch of partisan hacks,” she said. “Judicial philosophies are not the same as political parties,” she went on, reminding everyone that she’s an “originalist.”

In her confirmation hearings, Barrett said much the same — which Republican nominees always do. She was particularly vigorous in her insistence on her own breathtaking purity of mind, in which the grubbiness of politics was so far beneath her that she could barely see it from her perch in the intellectual clouds.

Weirdly enough, conservatives greeted her confirmation with rapturous joy, almost as if they didn’t believe her when she promised to rule in ways unmoored from any political or ideological concern or agenda.

Those conservatives popping the champagne know full well that those who call themselves “originalists,” as Barrett did, are seldom constrained from finding their way to whatever rulings they prefer on complex contemporary issues the Framers could not possibly have foreseen.

So how can Barrett say she’s not “partisan” and is motivated not by an ideological agenda but by a “judicial philosophy” unencumbered by political considerations? By defining “politics” so narrowly that it loses all relevance. The truth, however, is that everything the Supreme Court does is political, and that’s particularly true of its conservative majority.

No honest person can claim, for instance, that the string of decisions the court has issued upholding Republican efforts to solidify their minority rule — aggressive voter purges, brutal gerrymandering, all manner of techniques to make it harder to vote — are not political. Are the court’s attacks on unions not political? When Barrett and her fellow conservatives overturn Roe, is that not going to be political?

Of course it will be. Politics is about how power is distributed and used, how government relates to citizens, and how the law chooses to structure those relationships. It’s all political, because the political is where the law meets the real world.

The fact that in a particular case a justice can come up with a justification beyond “I’m just ruling this way because it’s what Republicans want” — even a persuasive one — doesn’t mean that her decisions don’t have profound political implications. And she and the other justices are well aware of those implications before they rule.

Sometimes they rule in ways that might confer political advantage on their ideological compatriots and sometimes they’ll rule in ways that might create political problems for their friends, but they do it with their eyes open every time, even as some of them continue to weave a myth of their own innocence.

The pending demise of Roe is a perfect example. If and when the conservative justices overturn that decision, they’ll do so knowing that it will almost certainly produce a backlash that will harm the Republican Party. But stopping women from being able to access abortion is such a long-standing ideological goal for conservatives — including those on the court — that they’re willing to see the GOP take some political damage.

The decision will affect politics in every corner of the country, probably in some ways we can’t anticipate. But when it happens, Republicans will say it was only the court doing the right thing, and that it was nothing more than what the Constitution and the beliefs of the Framers demand. And they’ll say it with a smirk, knowing that lying so gleefully drives liberals crazy, when the truth is far more simple: They’re the ones with the power, and they’ll use it to get what they want.

That’s politics too — a form of politics that is now playing out in a battle for control of women’s bodies and lives. And precisely because it’s political, it couldn’t be more important. Don’t let anyone get away with denying it.

Sept. 12

 

supreme court resized 2021

washington post logoWashington Post, Opinion: Breyer’s airbrushed portrayal of the judicial process, Ruth Marcus, right, Sept. 12, 2021 (print ed.). Could the timing of Supreme Court Justice ruth marcus twitter CustomStephen G. Breyer’s new book be any worse? It’s hard to imagine.

Breyer’s latest — an earnest testament to the nonpartisanship and professionalism of his conservative colleagues — comes on the heels of the decision by five of them to let a blatantly unconstitutional Texas abortion law take effect.

Breyer dissented from that move, saying it undermined “the ability to ask the Judiciary to protect an individual from the invasion of a constitutional right — an invasion that threatens immediate and serious injury.”

He dissented a few weeks earlier, when a six-justice majority rejected the Biden administration’s bid to extend the eviction moratorium. And again, a few days before that, when the same six justices rejected the Biden administration’s effort to undo the Trump administration’s “Remain in Mexico” policy for asylum seekers.

Are you beginning to see a pattern here?

Breyer’s book, loftily titled The Authority of the Court and the Peril of Politics, is an earnest plea to preserve the former and avoid the latter, a paean to the rule of law and a warning against precipitous steps — such as expanding the size of the court — that might undermine its legitimacy.

stephen breyer biography“Under the law, what is sauce for the goose is sauce for the gander; and the same is true of the public’s willingness to accept judicial decisions with which it disagrees,” Breyer, left, writes. “The rule of law is not a meal that can be ordered à la carte.”

Except that the goose and gander seem to be treated awfully differently these days. Conservative justices insist on strict adherence to statutory text, except when they don’t: See the court’s evisceration of Section 2 of the Voting Rights Act. Conservative justices lunge to prevent the perceived infringement of some constitutional rights — stepping in to block pandemic restrictions that limit religious observance — while insisting that procedural hurdles make it impossible to halt the Texas abortion law. They praise the importance of precedent, then casually toss it aside.

And the conservative justices are increasingly ordering off-menu, using their “shadow docket” to make decisions without the fig leaf of full briefing and oral argument. When the conservative justices leap to employ their power to issue emergency orders at the behest of the Trump administration but then act differently when the Biden administration comes calling, that sauce has a bitter aftertaste.

When it comes to politics, Breyer sees plenty of blame to go around — just not among his colleagues. Journalists, for one, who routinely identify the political party of the president appointing the justices when reporting on the court, a change from decades past. “Going further, they systematically label judges as conservative or liberal,” Breyer laments.

Guilty as charged — and it’s because times, and the court, have changed. To take one salient example: Four of the seven justices in the majority in Roe v. Wade were named by a Republican president; one of the two dissenters was nominated by a Democrat. Today, except in unusual and increasingly infrequent circumstances, the justices’ votes can be reliably predicted by looking at party affiliation. The labels are accurate.

ny times logoNew York Times, Behind the Texas Abortion Law, a Persevering Conservative Lawyer, Michael S. Schmidt, Sept. 12, 2021. A onetime Supreme Court clerk, Jonathan Mitchell spent years honing a legal approach that has flummoxed the courts and enraged abortion rights supporters. He is only now emerging as a pivotal player in one of the most high-profile examples yet of the erosion of the right to abortion.

Jonathan F. Mitchell grew increasingly dismayed as he read the Supreme Court’s decision in June 2016 striking down major portions of a Texas anti-abortion bill he had helped write.

Not only had the court gutted the legislation, which Mr. Mitchell had quietly worked on a few years earlier as the Texas state government’s top appeals court lawyer, but it also had called out his attempt to structure the law in a way that would prevent judicial action to block it, essentially saying: nice try.

“We reject Texas’ invitation to pave the way for legislatures to immunize their statutes” from a general review of their constitutionality, Justice Stephen G. Breyer wrote in the majority’s opinion.

For Mr. Mitchell, a onetime clerk to Justice Antonin Scalia, the decision was a stinging rebuke, and he vowed that if he ever had the chance to help develop another anti-abortion law, he would ensure it survived at the Supreme Court.

Last month, he got his chance. With its ideological balance recast by President Donald J. Trump, the court refrained from blocking a new law in Texas that all but bans abortion — a potential turning point in the long-running fight over the procedure. And it was the deeply religious Mr. Mitchell, a relative unknown outside of Texas in the anti-abortion movement and the conservative legal establishment, who was the conceptual force behind the legislation.

The court’s decision did not address the law’s constitutionality, and the legislation will no doubt face more substantive challenges. But already, the audacious legislative structure that Mr. Mitchell had conceived of — built around deputizing ordinary citizens to enforce it rather than the state — has flummoxed lower courts and sent the Biden administration and other supporters of abortion rights scrambling for some way to stop it.

Sept. 9

washington post logoWashington Post, Supreme Court to resume in-person hearings, but building still closed to public, Robert Barnes, Sept. 9, 2021 (print ed.). The Supreme Court will return to its historic courtroom in Washington to hear arguments when its term begins Oct. 4, but the hearings will be conducted without the public in attendance.

The court announced Wednesday that because of the coronavirus pandemic, the building remains closed except for official business.

“Courtroom access will be limited to the Justices, essential Court personnel, counsel in the scheduled cases, and journalists with full-time press credentials issued by the Supreme Court,” the court said in a news release.

It added: “The Court will continue to closely monitor public health guidance in determining plans.”

The court will provide live audio of the proceedings in October, November and December, as it has been doing in cases heard by teleconference.

Supreme Court resumes arguments, with all the grandeur of working from home

The court has not held arguments in person since March 2020. All were held remotely last term. But all nine justices are vaccinated against the coronavirus, the court has said, and they began to meet together for their private conferences this past spring.

It will be a new court that returns to the mahogany bench. Justice Amy Coney Barrett, nominated by President Donald Trump and confirmed by the Senate last October, has never sat for hearings with her colleagues in person.

She replaced Justice Ruth Bader Ginsburg, who died nearly a year ago. When Chief Justice John G. Roberts Jr. takes his position at the center of the court, the most senior justice, Clarence Thomas, will be at his right. Justice Stephen G. Breyer, who was confirmed three years after Thomas, in 1994, will be on Roberts’s left.

Breyer, the optimist, shakes off defeats and the calls for his retirement

The court did not announce whether its return to the bench will also mean a return to the rapid questioning style of oral arguments, where justices ask at will and jump in whenever there is a break.

During the teleconference hearings, the justices asked questions by seniority, with Roberts playing timekeeper and referee. In that format, Thomas, who has asked few questions during his nearly three decades on the court, was an active participant.

Sept. 6brett kavanaugh confirmation

Press Run, Commentary: We still don’t know who paid Kavanaugh’s $92,000 country club fee, Eric Boehlert, right, Sept. 6, 2021. An incurious press. By joining his fellow eric.boehlertconservatives on the Supreme Court in declining to block one of the country’s most restrictive abortion laws, a Texas statute that bans the procedure as early as six weeks into pregnancy, Justice Brett Kavanaugh (shown above during his Senate confirmation hearing) made good on his unspoken pledge to demolish Roe v. Wade. Kavanaugh’s actions could change the fabric of this country for decades, and empower radicals within the Republican Party to strip away more rights of Americans.

Against that dystopian backdrop let’s not forget two crucial historic facts. Kavanaugh lied his way through his confirmation hearings. Facing multiple and credible allegations of sexual assault, Kavanaugh lied about witnesses; he lied about corroboration; he lied about friendships; he lied about parties. He also lied about an array of other topics, including state drinking ages, vomiting, his yearbook, and his accusers. Kavanaugh lied about his grandfather, federal judges, warrantless wiretaps, and stolen emails.

Second, some deep-pocketed patron, or patrons, over the years have clearly covered Kavanaugh’s personal finances. Someone erased all of the many financial pitfalls he faced, including tens of thousands of dollars in credit card debt, while setting up him for a luxurious lifestyle well beyond what he could afford on the salary of a federal judge. We still don’t know which benefactors paid for Kavanaugh’s $92,000 country club initiation fee in 2016 for the Chevy Chase Club while he was making $225,000 a year, had two children in private school, and was saddled with the most debt of his life, approximately $100,000.

The staggering country club fee, which Kavanaugh plainly could not cover himself, represented the most egregious hole in Kavanaugh’s make-no-sense financial disclosure made during his nomination. For instance, in 2006, he bought a $1.2 million home in a tony suburb of Washington, D.C. and made tens of thousands of dollars of upgrades while earning $175,000 and sitting on a modest savings account.

The disclosures should have been a huge red flag for the press. “The personal finances of Supreme Court nominees regularly come under scrutiny during the congressional vetting process,” the Washington Post reported in 2018. And Kavanaugh’s finances were by far the most befuddling of any Supreme Court nominee in modern history. But the press mostly yawned through the story.

Sept. 4

washington post logoWashington Post, Biden signs executive order requiring review, release of some classified 9/11 documents, Amy B Wang and Matt Zapotosky, Sept. 4, 2021 (print ed.). President Biden on Friday signed an executive order that would require the review, declassification and release of classified government documents related to the terrorist attacks of Sept. 11, 2001.

In doing so, Biden said he was fulfilling a promise he had made while campaigning for president, in which he had vowed, if elected, to direct the U.S. Attorney General to “personally examine the merits of all cases” where the government had invoked state secrets privilege and “to err on the side of disclosure in cases where, as here, the events in question occurred two decades or longer ago.”

“When I ran for president, I made a commitment to ensuring transparency regarding the declassification of documents on the September 11, 2001 terrorist attacks on America,” Biden said in a statement Friday. “As we approach the 20th anniversary of that tragic day, I am honoring that commitment.”

Justice Department log circularThe executive order directs the Justice Department and other relevant agencies to oversee a declassification review of documents related to the FBI’s Sept. 11 investigations. The order also requires the U.S. Attorney General to release the declassified documents publicly over the next six months, Biden said.

Families of hundreds of 9/11 victims had told Biden last month that he would not be welcome at this year’s memorial events marking the 20th anniversary of the attacks unless he declassified government evidence beforehand that could link Saudi Arabia to the attack, according to a letter sent to the White House in August.

Shortly afterward, the Justice Department pledged to review evidence related to the 9/11 terrorist attacks, a move that an advocate for some of the families criticized as insufficient. In a court filing last month, the Justice Department already had said the FBI was reviewing the materials for possible public disclosure.

But Biden’s executive order imposes new conditions and timetables on that process, commanding the bureau to review some materials by Sept. 11 and others on staggered deadlines over the next 180 days.

Biden also seemed to direct the bureau to favor disclosure in questionable calls, writing that material should not stay secret if there was “significant doubt” about the need for it to remain classified, and that the attorney general and others should determine “whether the public interest in disclosure of the information outweighs the damage to the national security that might reasonably be expected from disclosure.”

The FBI said in a statement reacting to the order: “The FBI will continue to work in coordination with the Department of Justice and other agencies to declassify and release documents related to the 9/11 investigation.” The Justice Department declined to comment to The Washington Post.

In the shadow of the towers: Five lives and a world transformed

Some 9/11 families immediately praised the executive order Friday. One group, 9/11 Families United, which represents more than 10,000 people affected by the attacks, said in a statement that Biden’s order “looks like a true turning point.”

“We have been fighting the FBI and intelligence community for too long,” said Terry Strada, whose husband, Tom, was killed in the World Trade Center. “There is much more work to be done to secure justice for our murdered loved ones and to rectify the immense damage the 20-year shroud of secrecy has caused, but we now are optimistic that President Biden will be helping us achieve those goals.”

Brett Eagleson, who lost his father, Bruce Eagleson, in the 9/11 attacks, commended Biden for signing the executive order, calling it “a critical first step” to a full accounting.

“We will closely watch this process to ensure the Justice Department and FBI follow through, act in good faith, and help our families uncover the truth in our pursuit of justice against the Saudi government,” Brett Eagleson said in a statement. “The first test will be on 9/11, and the world will be watching.”

Several members of Congress, including Sen. Kirsten Gillibrand (D-N.Y.), said they supported Biden’s decision to order the declassification review of 9/11 documents. Rep. Adam B. Schiff (D-Calif.), chairman of the House Intelligence Committee, said Friday the committee would closely oversee the review process “to ensure that all agencies adhere to the president’s guidance to apply the maximum degree of transparency allowed by law when conducting the review.”

Biden has not yet made public his plans for the 20th anniversary of the attacks. Last year, while campaigning for president, he attended Sept. 11 memorial events in Lower Manhattan and Shanksville, Pa.

“My heart continues to be with the 9/11 families who are suffering, and my Administration will continue to engage respectfully with members of this community,” Biden said Friday. “I welcome their voices and insight as we chart a way forward.”

Sept. 3

supreme court resized 2021

ny times logoNew York Times, Analysis: Texas Abortion Case Highlights Concern Over Supreme Court’s ‘Shadow Docket,’ Charlie Savage, right, Sept. 3, 2021 (print ed.). A charlie savageprocess intended to help the court deal with emergency petitions and routine matters has grown into a backdoor way of making major policy decisions.

Most of the time, the Supreme Court appears to the public like a cautiously deliberative body. Before issuing major rulings, the justices pore over extensive written briefs, grill lawyers in oral arguments and then take months to draft opinions explaining their reasoning, which they release at precisely calibrated moments.

Then there is the “shadow docket.”

With increasing frequency, the court is taking up weighty matters in a rushed way, considering emergency petitions that often yield late-night decisions issued with minimal or no written opinions. Such orders have reshaped the legal landscape in recent years on high-profile matters like changes to immigration enforcement, disputes over election rules, and public-health orders barring religious gatherings and evictions during the pandemic.

The latest and perhaps most powerful example came just before midnight on Wednesday, when the court ruled 5 to 4 to leave in place a novel Texas law that bars most abortions in the state — a momentous development in the decades-long judicial battle over abortion rights.

The court spent less than three days dealing with the case. There were no oral arguments before the justices. The majority opinion was unsigned and one paragraph long. In a dissent, Justice Elena Kagan said the case illustrated “just how far the court’s ‘shadow-docket’ decisions may depart” from the usual judicial process and said use of the shadow docket “every day becomes more unreasoned, inconsistent and impossible to defend.”

There is nothing new about the court having an orders docket where it swiftly disposes of certain matters. But with the notable exception of emergency applications for last-minute stays of execution, this category of court activity has traditionally received little attention. That is because for the most part, the orders docket centers on routine case management requests by lawyers, like asking for permission to submit an unusually long brief.

The court also uses it to dispose of emergency appeals. Each justice handles requests from a different region, and can reject them or bring them to the full court. And increasingly, the court has been using its orders docket — which was deemed the “shadow docket” in 2015, in an influential law journal article by William Baude, a University of Chicago law professor — to swiftly decide whether to block government actions, turning it into a powerful tool for affecting public policy without fully hearing from the parties or explaining its actions in writing.

Criticism of the use of the shadow docket has been building for years but rose to a new level with the Texas abortion case. The chairman of the House Judiciary Committee, Representative Jerrold Nadler, Democrat of New York, denounced the ruling, saying it allowed what he portrayed as a “flagrantly unconstitutional law” to take force and calling it “shameful” that the court’s majority did so without hearing arguments or issuing any signed opinion. He announced hearings.

“Because the court has now shown repressive state legislatures how to game the system, the House Judiciary Committee will hold hearings to shine a light on the Supreme Court’s dangerous and cowardly use of the shadow docket,” he said in a statement. “Decisions like this one chip away at our democracy.”

Liberals are not the only ones who see problems in the increasing importance of the court’s exercise of power through emergency orders. When the court issued a shadow-docket order last year letting a Trump administration immigration rule take effect — overturning a lower-court judge’s nationwide injunction blocking the rule — Justice Neil M. Gorsuch, a conservative, supported that result but lamented the process that had led up to it.

“Rather than spending their time methodically developing arguments and evidence in cases limited to the parties at hand, both sides have been forced to rush from one preliminary injunction hearing to another, leaping from one emergency stay application to the next, each with potentially nationwide stakes, and all based on expedited briefing and little opportunity for the adversarial testing of evidence,” he wrote.

But while there is broad consensus that the Supreme Court’s use of the shadow docket for high-profile rulings is growing — a trend playing out within an increasingly polarized judiciary and nation — defining the precise nature of the problem is complicated and subject to dispute.

“I don’t think anyone thinks it is good to have a lot of last-minute requests for emergency relief that the court has to focus on and decide,” said Samuel Bray, a University of Notre Dame law professor who testified about the shadow docket this summer before President Biden’s commission studying possible Supreme Court changes. “But there are difficult questions about what has caused the high-profile use of the shadow docket — and what to do about it.”

Over the past decade or so, such rulings have clearly become more common. Typically, they involve emergency appeals of lower-court rulings over the question of whether to block some change — like a new law or government policy — so it cannot be enforced while the slow process of litigating plays out

One way of measuring the Supreme Court’s use of its shadow docket to issue major decisions is how often it has used that power to summarily disrupt the status quo — such as by granting or vacating an injunction when a lower court had ruled a different way.

stephen vladeck resizedAccording to data compiled by Stephen I. Vladeck, a University of Texas at Austin law professor who has written critically about the rise of the shadow docket, cases in which the Supreme Court disrupted the status quo numbered in the single digits each year from 2005 to 2013, but have been rising since, reaching 19 in its last term and 19 again so far this term.

“If they are going to issue rulings that profoundly change the law, I think they have an obligation to write and to explain why they are doing it,” said Mr. Vladeck, right, who also testified on the issue before the Supreme Court commission. “They have an obligation to the lower courts, to the other parties in the case and to other public officials who need guidance.”

But as the furor over the Texas abortion rights case shows, that measure is imperfect. In that case, rather than summarily disrupting the status quo established by a lower court, the Supreme Court majority decided not to overturn what an appeals court had done.

The most restrictive in the country. The Texas abortion law, known as Senate Bill 8, amounts to a nearly complete ban on abortion in the state. It prohibits most abortions after about six weeks of preganancy and makes no exceptions for pregnancies resulting from incest or rape.

Citizens, not the state, will enforce the law. The law effectively deputizes ordinary citizens — including those from outside Texas — allowing them to sue clinics and others who violate the law. It awards them at least $10,000 per illegal abortion if they are successful.

Patients cannot be sued. The law allows doctors, staff and even a patient’s Uber driver to become potential defendants.

The Supreme Court’s decision.

The Supreme Court refused just before midnight on Wednesday to block a Texas law prohibiting most abortions, less than a day after it took effect and became the most restrictive abortion measure in the nation. The vote was 5 to 4, with Chief Justice John G. Roberts Jr. joining the court’s three liberal members in dissent.

In an interview, Mr. Baude — the professor who coined the term “shadow docket,” and who is a member of Mr. Biden’s Supreme Court commission — said another reason the debate was so complicated was that there were different types of worries over the court’s growing use of its emergency orders to swiftly resolve matters, and they only partly overlapped.

One worry, he said, is substantive: The court may reach the wrong result because it is rushing. Another is procedural: Regardless of the result, it is not fair to parties who do not get a chance to be fully heard before the decision. A third is about transparency: The court should fully explain itself and disclose how each justice voted.

But the uproar over the majority’s handling of the Texas anti-abortion law, he said, seems most centered on another worry: that the conservative majority on the court is not being evenhanded or consistent about when it chooses to intervene with an emergency order.

ny times logoNew York Times, Opinion: In the Dead of Night, the Supreme Court Proved It Has Too Much Power, Jamelle Bouie, right, Sept. 3, 2021. The Supreme Court’s recent jamelle bouiereliance on the so-called shadow docket to make major rulings — on display, this week, in its decision to let Texas end legal abortion after six weeks, at least for now — throws the problem of judicial power in a representative democracy into sharp relief.

First, some background. The shadow docket refers to emergency orders and decisions made outside of the court’s regular docket of cases, usually without oral arguments. The term was coined six years ago by William Baude, a law professor at the University of Chicago, but the division between regular cases and this more specialized set has been around for decades. All it takes to get on the docket is to appeal to one justice, who then decides whether to forward the matter to the rest of the court.

Many of these orders are minor and procedural, but others deal with high-stakes issues of national concern. In recent years, and especially during the Trump administration, the court has relied on the shadow docket to make consequential decisions on a wide range of issues. Often, the court issues its decisions from the shadow docket without signed opinions or detailed explanations of the kind you would find in an argued case.

In the last five months, the Supreme Court has used the shadow docket to strike down Covid restrictions on group religious activities in private homes, force President Biden to reinstate the Trump-era “remain in Mexico” policy for asylum seekers from Central America and block the extension of an emergency federal ban on evictions, putting countless Americans at risk of homelessness.

The vote on the Texas abortion law came Wednesday, in the dead of night, when a narrow majority of the court declined to stop Texas from implementing a new ban on abortions past the sixth week of pregnancy, which is often before many women even know they are pregnant.

The law is a flagrant violation of Roe v. Wade. But because Texas has deputized private citizens to enforce the ban rather than rely on executive authority — a deliberate choice meant to prevent federal courts from blocking the law — the high court has declined to act against the ban, citing the “complex and novel antecedent procedural questions” of the case. For Justice Sonia Sotomayor, this is nonsense. “The court,” she wrote in her dissent, “has rewarded the state’s effort to delay federal review of a plainly unconstitutional statute, enacted in disregard of the court’s precedents, through procedural entanglements of the state’s own creation.”

Abortion rights are a dead letter in Texas, at least temporarily. And Republican lawmakers in other parts of the country now have a clear road map for making the same thing happen in their own states. Republican legislative leaders in Florida, for example, have already said they are working on a similar law.

Another way to put this is that the court has essentially nullified the constitutional rights of millions of American women without so much as an argument. It has shaken the constitutional landscape — refusing to apply the law as it was decided in previous cases — while shielding itself from the scrutiny that might come under normal circumstances. The court has transformed the constitutional status quo under cover of night. This isn’t judicial review as much as it is a raw exercise of judicial power.

It is common enough knowledge that the Supreme Court’s power to shape American society is a function not so much of its formal power under the Constitution as it is of its popular legitimacy. And much of that legitimacy rests on the idea that the court is acting fairly, transparently and in good faith. It rests, as well, on the idea of the court as a partner in governance and a safeguard for the rights of the American people.

The court’s abuse of the shadow docket is in that category: actions that threaten to place the rule of men over the rule of law. It’s not that the court is political — that is to be expected — but that its conservative majority is acting in arbitrary, secretive ways, with hardly any justification other than its own power to do so.

The shadow docket aside, the extent to which political outcomes in America rest on the opaque machinations of a cloistered, nine-member clique is the clearest possible sign that we’ve given too much power to this institution. We can have self-government or we can have rule by judge, but we cannot have both.

ny times logoNew York Times, Editorial: The Abortion Ruling Was Stunning but Not Surprising, Editorial Board, Sept. 3, 2021. Many Americans were caught off guard by the Supreme Court’s decision late Wednesday night to let stand a blatantly unconstitutional Texas law that bans nearly all abortions in the state.

They shouldn’t have been. Anti-choice activists, lawmakers and judges have been laying the groundwork for this moment since the court decided Roe v. Wade in 1973.

For nearly half a century, the anti-abortion movement had to settle for partial victories, constantly chipping away at women’s right to an abortion, but never achieving the ultimate goal of overturning Roe itself. Now, with a hard-right supermajority on the bench for this purpose, that goal is within reach — even as a solid and consistent majority of the American public continues to believe abortion should be legal in all or most cases.

For the majority of Americans who support a woman’s right to comprehensive reproductive health, the Supreme Court is now an adversary. Any long-term success will mean fighting the same way anti-abortion campaigners have for decades — in the political realm, by winning elections at the state and federal levels and changing laws as a result. Unlike the justices, elected leaders can be voted out if they don’t listen to their constituents. It’s a long and difficult road, but it’s the one all lasting reforms in a democracy must take.

brett kavanaugh flag

 washington post logoWashington Post, Sen. Collins asserted that Kavanaugh considered abortion rights settled law. His decision on Texas’s ban suggests otherwise, Felicia Sonmez, Sept. 3, 2021 (print ed.). Sen. Susan Collins emerged from her face-to-face meeting with then-Supreme Court nominee Brett M. Kavanaugh, above, in August 2018 insisting that he had reassured her that Roe v. Wade was settled law.

susan collins official SmallTwo months later, Collins (R-Maine), right, who supports abortion rights, declared in a lengthy Senate floor speech that Kavanaugh had a “record of judicial independence” and dismissed the notion that he might overturn precedent. She later would vote to confirm him to the lifetime post.

Collins’s past assertions came into sharp relief Wednesday as Kavanaugh joined four of his fellow conservatives on the court in declining to block one of the country’s most restrictive abortion laws, a Texas statute that bans the procedure as early as six weeks into pregnancy with no exception for rape or incest. The court’s action stands as the most serious threat to the landmark ruling establishing a woman’s right to abortion in nearly 50 years.

Collins’s support for Kavanaugh — and her insistence that he would uphold Roe — was crucial in installing then-President Donald Trump’s nominee to the Supreme Court as the Senate confirmed him by one of the narrowest margins in history, a near party-line 50-to-48 vote.

His decision late Wednesday night revives questions of whether Collins was misled by the nominee or whether she was intent on supporting him no matter his views on abortion rights. Collins’s full-throated endorsement of Kavanaugh and her swing vote means she will always be associated with this Supreme Court justice, winning praise from conservatives and widespread criticism from liberals.

In a statement Thursday afternoon, Collins called the Texas law “extreme and harmful.” She made no specific mention of Kavanaugh but noted that of the six Supreme Court justices she has voted to confirm, three voted with the majority on the Texas ban, while three voted with the minority.

“The Supreme Court recognized that there are ‘serious questions’ regarding the constitutionality of the Texas law, and it emphasized that its recent ruling does not address those questions,” Collins said. “I oppose the Court’s decision to allow the law to remain in effect for now while these underlying constitutional and procedural questions are litigated.”

Abortion providers say the Texas ban — which relies on private citizens to sue people who help women obtain abortions prohibited under the law — effectively eliminates the guarantee in Roe v. Wade and subsequent Supreme Court decisions that women have a right to end their pregnancies before viability, and that states may not impose undue burdens on that decision. It was specifically designed to turn away pre-enforcement challenges in federal courts.

Collins’s support for Kavanaugh became a major issue in her bid for reelection in 2020. Some abortion rights groups withdrew their support for Collins, and a major LGBTQ rights group, the Human Rights Campaign, endorsed her Democratic opponent, Maine’s then-House Speaker Sara Gideon, citing Collins’s vote to confirm Kavanaugh, as well as “her support of Mitch McConnell and Donald Trump’s agenda.”

Nonetheless, the senator successfully won reelection, taking 51 percent to Gideon’s 42.4 percent. Collins, 68, is not up for reelection until 2026.

Sept. 2

supreme court Custom

ny times logoNew York Times, Supreme Court, Breaking Silence, Won’t Block Texas Abortion Law, Adam Liptak, J. David Goodman and Sabrina Tavernise, Updated Sept. 2, 2021, 1:40 a.m. ET. Legislation Is Nation’s Most Restrictive. The 5-to-4 vote came less than a day after the law went into effect, prohibiting abortions after six weeks. Texas lawmakers drafted the measure with the goal of frustrating efforts to challenge it in federal court.

The Supreme Court refused just before midnight on Wednesday to block a Texas law prohibiting most abortions, less than a day after it took effect and became the most restrictive abortion measure in the nation.

john roberts oThe vote was 5 to 4, with Chief Justice John G. Roberts Jr., left, joining the court’s three liberal members in dissent.

The majority opinion was unsigned and consisted of a single long paragraph. It said the abortion providers who had challenged the law in an emergency application to the court had not made their case in the face of “complex and novel” procedural questions. The majority stressed that it was not ruling on the constitutionality of the Texas law and did not mean to limit “procedurally proper challenges” to it.

But the ruling was certain to fuel the hopes of abortion opponents and fears of abortion rights advocates as the court takes up a separate case in its new term this fall to decide whether Roe v. Wade, the landmark 1973 decision establishing a constitutional right to the procedure, should be overruled. It also left Texas abortion providers turning away patients as they scrambled to comply with the law, which prohibits abortions after roughly six weeks.

All four dissenting justices filed opinions.

“The court’s order is stunning,” Justice Sonia Sotomayor wrote in her dissent. “Presented with an application to enjoin a flagrantly unconstitutional law engineered to prohibit women from exercising their constitutional rights and evade judicial scrutiny, a majority of justices have opted to bury their heads in the sand.”

“The court has rewarded the state’s effort to delay federal review of a plainly unconstitutional statute, enacted in disregard of the court’s precedents, through procedural entanglements of the state’s own creation,” Justice Sotomayor wrote. “The court should not be so content to ignore its constitutional obligations to protect not only the rights of women, but also the sanctity of its precedents and of the rule of law.”

Chief Justice Roberts wrote that he would have blocked the law while appeals moved forward.

“The statutory scheme before the court is not only unusual, but unprecedented,” he wrote. “The legislature has imposed a prohibition on abortions after roughly six weeks, and then essentially delegated enforcement of that prohibition to the populace at large. The desired consequence appears to be to insulate the state from responsibility for implementing and enforcing the regulatory regime.”

The chief justice underscored the tentative nature of the majority’s ruling. “Although the court denies the applicants’ request for emergency relief today,” he wrote, “the court’s order is emphatic in making clear that it cannot be understood as sustaining the constitutionality of the law at issue.”

Justice Elena Kagan criticized the court’s practice of deciding important issues in rushed decisions without full briefing or oral argument — on what Supreme Court specialists call its “shadow docket.”

“Today’s ruling illustrates just how far the court’s ‘shadow-docket’ decisions may depart from the usual principles of appellate process,” she wrote. “That ruling, as everyone must agree, is of great consequence.”

“Yet the majority has acted without any guidance from the court of appeals — which is right now considering the same issues,” she wrote. “It has reviewed only the most cursory party submissions, and then only hastily. And it barely bothers to explain its conclusion — that a challenge to an obviously unconstitutional abortion regulation backed by a wholly unprecedented enforcement scheme is unlikely to prevail.”

“In all these ways,” Justice Kagan wrote, “the majority’s decision is emblematic of too much of this court’s shadow-docket decision making — which every day becomes more unreasoned, inconsistent and impossible to defend.”

The Texas law, known as Senate Bill 8, amounts to a nearly complete ban on abortion in Texas because 85 to 90 percent of procedures in the state happen after the sixth week of pregnancy, according to lawyers for several clinics. On Tuesday night, clinics were scrambling to see patients until the minute the law went into effect, with six-hour waits for procedures in some places. By Wednesday, the patient lists had shrunk, clinic workers said in interviews.

The law is the latest battle over abortion rights in the United States. In recent years, anti-abortion campaigners have found success through laws in state legislatures, and a broad swath of the South and the Midwest now has limited access to abortions.

Texas has about 24 abortion clinics, down from roughly 40 before 2013, when the State Legislature imposed a previous round of restrictions. It was not immediately clear on Wednesday if every one of them was complying with the law, which the Republican governor signed in May, but many, in interviews, said they were.

Sept. 1

ny times logoNew York Times, After Supreme Court Silence, Texas Clinics Face Near-Total Abortion Ban, Adam Liptak and Sabrina Tavernise, Sept. 1, 2021. The law went into effect after the Supreme Court failed to act on a request to block it, prompting clinics in the state to begin to turn away women. The justices may still rule on the request, which is just an early step in what is expected to be an extended legal battle over the law.

texas mapA Texas law prohibiting most abortions after about six weeks of pregnancy went into effect on Wednesday after the Supreme Court failed to act on a request to block it, ushering in the most restrictive abortion law in the nation and prompting clinics in the state to turn away women seeking the procedure.

The justices may still rule on the request, which is just an early step in what is expected to be an extended legal battle over the law. In the meantime, though, access to abortion in Texas has become extremely limited, the latest example of a Republican-led state imposing new constraints on ending pregnancies.

The law, known as Senate Bill 8, amounts to a nearly complete ban on abortion in Texas, one that will further fuel legal and political battles over the future of Roe v. Wade, the 1973 decision that established a constitutional right to abortion. The law makes no exceptions for pregnancies resulting from incest or rape.

supreme court buildingIn an emergency application urging the justices to intervene, abortion providers in the state wrote that the law “would immediately and catastrophically reduce abortion access in Texas, barring care for at least 85 percent of Texas abortion patients (those who are six weeks pregnant or greater) and likely forcing many abortion clinics ultimately to close.”

Supreme Court precedents forbid states from banning abortion before fetal viability, the point at which fetuses can sustain life outside the womb, or about 22 to 24 weeks.

But the Texas law was drafted to make it difficult to challenge in court. Usually, a lawsuit seeking to block a law because it is unconstitutional would name state officials as defendants. But the Texas law bars state officials from enforcing it and instead deputizes private individuals to sue anyone who performs the procedure or “aids and abets” it.

The patient may not be sued, but doctors, staff members at clinics, counselors, people who help pay for the procedure, even an Uber driver taking a patient to an abortion clinic are all potential defendants. Plaintiffs, who need not have any connection to the matter or show any injury from it, are entitled to $10,000 and their legal fees recovered if they win. Prevailing defendants are not entitled to legal fees.

The immediate question for the justices is not whether the Texas law is constitutional. It is, rather, whether it may be challenged in federal court. The law’s defenders say that, given the way the law is structured, only Texas courts can rule on the matter and only in the context of suits against abortion providers for violating the law.

Amy Hagstrom Miller, the chief executive of Whole Woman’s Health, which operates four clinics in Texas, said they would comply with the law and that no abortions would be scheduled for any patient whose ultrasound detects a fetal heartbeat.

She said the threat of being sued individually under the law was worrying for her staff, including doctors and administrators, and she did not want to expose them to that risk.

“Our staff and doctors would be put in the position of having to defend themselves against accusations of breaking the law,” she said. “It’s sobering. This is way beyond anything any of us had imagined.”

At Whole Woman’s Health of Fort Worth, the last patient appointment was completed at 11:56 p.m. on Tuesday, said Marva Sadler, senior director of clinic services. She said doctors started at 7:30 a.m. on Tuesday morning and treated 117 patients, far more than usual.

washington post logoWashington Post, Opinion: Say goodbye to Roe v. Wade, Paul Waldman, right, Sept. 1, 2021. Thanks to the state of Texas, the country’s most paul waldmanconservative court of appeals and the U.S. Supreme Court, abortion has been all but outlawed in the second-largest state in America. Roe v. Wade now hangs by a fraying thread, with six justices sharpening their scissors to sever it once and for all.

Texas recently passed the most draconian abortion law in the United States, one that quite intentionally violates Roe v. Wade. A federal district court was about to have a hearing on the law, one that would probably have resulted in a stay on the law while the legal case against it is decided.

But the U.S. Court of Appeals for the 5th Circuit — the most conservative of the federal appeals courts — stepped in and canceled that hearing. The plaintiffs suing to stop the law made an emergency appeal to the Supreme Court, which the justices chose not to act on before Sept. 1, when the law was slated to go into effect.

ny times logoNew York Times, Citizens, Not the State, Will Enforce New Abortion Law in Texas, Sabrina Tavernise, July 9, 2021, Updated Sept. 1, 2021. The measure bans abortions after about six weeks of pregnancy. And it effectively deputizes ordinary citizens to sue people involved in the process.

People across the country may soon be able to sue abortion clinics, doctors and anyone helping a woman get an abortion in Texas, under a new state law that contains a legal innovation with broad implications for the American court system.

The provision passed the State Legislature this spring as part of a bill that bans abortion after a doctor detects a fetal heartbeat, usually at about six weeks of pregnancy. Many states have passed such bans, but the law in Texas is different.

Ordinarily, enforcement would be up to government officials, and if clinics wanted to challenge the law’s constitutionality, they would sue those officials in making their case. But the law in Texas prohibits officials from enforcing it. Instead, it takes the opposite approach, effectively deputizing ordinary citizens — including from outside Texas — to sue clinics and others who violate the law. It awards them at least $10,000 per illegal abortion if they are successful.

“It’s completely inverting the legal system,” said Stephen Vladeck, a constitutional law professor at the University of Texas at Austin. “It says the state is not going to be the one to enforce this law. Your neighbors are.”

The result is a law that is extremely difficult to challenge before it takes effect on Sept. 1 because it is hard to know whom to sue to block it, and lawyers for clinics are now wrestling with what to do about it. Six-week bans in other states have all been blocked as they make their way through the court system.

washington post logoWashington Post, Opinion: The 5th Circuit is staking out a claim to be America’s most dangerous court, Ruth Marcus, right, Sept. 1, 2021 (print ed.). The Supreme ruth marcus twitter CustomCourt is, no doubt, the nation’s most powerful court. But the 5th Circuit, the federal appeals court that covers Louisiana, Mississippi and Texas, is staking out a claim to be the most dangerous — the least wedded to respecting precedent or following an orderly judicial process.

The 5th is arguably the most conservative among the country’s dozen appeals courts. It inclined in that direction even before President Donald Trump managed to install six nominees. And they constitute quite a bunch: Stuart Kyle Duncan, who said the Supreme Court’s 2015 ruling establishing a right to same-sex marriage “imperils civic peace” and “raises a question about the legitimacy of the court.” Cory Wilson, who tweeted about Hillary Clinton using the hashtag #CrookedHillary, called the Affordable Care Act “illegitimate” and said he supported overturning Roe v. Wade. James C. Ho, who issued a concurring opinion lamenting the “moral tragedy of abortion.”

How conservative is the court, where 12 of 17 active judges were named by Republican presidents? “As conservative a federal appeals court as any of us have seen in our lifetimes,” says Stephen I. Vladeck, a law professor at the University of Texas, noting that even as the circuit’s conservatives tend toward the extreme end of the spectrum, its liberals aren’t all that liberal.

 

August

Aug. 29

washington post logoWashington Post, Breyer, the optimistic justice, shakes off defeats but warns of threats to Supreme Court’s authority, Robert Barnes, Aug. 29, 2021 (print ed.).  Justice Stephen G. Breyer is on a losing streak.

Three times in the past 14 days, he dissented as the Supreme Court issued a series of emergency orders overturning pandemic-related bans and telling the executive branch it must reinstate a Trump-era immigration policy President Biden halted on his first day in office.

But as Breyer sat for an interview in his overstuffed chambers overlooking the Capitol on Friday — batting away questions about retirement and whether the upcoming term would be his last — the 83-year-old justice was anything but grim.

“Only sometimes when I’m in dissent do I get in a really black mood,” Breyer explained. “When I worked for [Supreme Court Justice] Arthur Goldberg and we’d lose something when I’d think we were so right, he’d say: ‘What do you want me to do? Cry?’ ”
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Instead, Breyer has adopted Goldberg’s attitude: “Ok, let’s go on to the next one.” Breyer adds: “If that’s Pollyanna, I’m Pollyanna.”

stephen breyer full portraitBreyer might have been a bit fixated on the description — excessively optimistic or cheerful — because he was just told that’s how some in his liberal fan base have characterized the assertions he makes about the Supreme Court’s image in his new book, The Authority of the Court and the Peril of Politics.

It is a slim volume based on a speech he gave at Harvard Law School in the spring. He argues the court’s authority is undermined by attempts to fit justices into ideological camps and attribute their disagreements to partisan inclinations. He warns that structural changes to the court, such as liberal proposals to offset the current conservative majority by adding justices, could come at too high a cost.

Breyer warns to think ‘long and hard’ about court-packing

“A short-term victory in the great zero-sum game that our politics has become could bring about grave structural damage not only to an essential constitutional institution but also to our system of government,” Breyer writes.

If the book could be summed up in a paragraph, it would be this one: “My experience from more than thirty years as a judge has shown me that anyone taking the judicial oath takes it very much to heart. A judge’s loyalty is to the rule of law, not the political party that helped to secure his or her appointment.”

Skeptical? Breyer responds: “I’m giving my experience. So you can’t say I’m a Pollyanna if that’s my experience.”

His point is that the court’s finality is acknowledged by the public and the other branches of government because it is seen as independent.

“The public now expects presidents to accept decisions of the Court, including those that are politically controversial,” Breyer writes. “The Court, with no troops of its own, has reached the point of being able to impose a significant check — a legal check — upon the executive’s actions, even in cases where the executive strongly disagrees with the outcome.”

Aug. 27stephen breyer

ny times logoNew York Times, Justice Stephen Breyer Talks Retirement and Politics at the Supreme Court, Adam Liptak, right, Aug. 27, 2021. In an interview prompted by his new adam liptakbook, the 83-year-old leader of the court’s liberal wing, shown above in a file photo, said he was working on a decision about when to step down.

Justice Stephen G. Breyer says he is struggling to decide when to retire from the Supreme Court and is taking account of a host of factors, including who will name his successor. “There are many things that go into a retirement decision,” he said.

He recalled approvingly something Justice Antonin Scalia had told him.

“He said, ‘I don’t want somebody appointed who will just reverse everything I’ve done for the last 25 years,’” Justice Breyer said during a wide-ranging interview on Thursday. “That will inevitably be in the psychology” of his decision, he said.

“I don’t think I’m going to stay there till I die — hope not,” he said.

Justice Breyer, 83, is the oldest member of the court, the senior member of its three-member liberal wing and the subject of an energetic campaign by liberals who want him to step down to ensure that President Biden can name his successor.

supreme court buildingThe justice visited the Washington bureau of The New York Times to discuss his new book, “The Authority of the Court and the Peril of Politics,” scheduled to be published next month by Harvard University Press. It prompted questions about expanding the size of court, the so-called shadow docket and, inevitably, his retirement plans.

The book explores the nature of the court’s authority, saying it is undermined by labeling justices as conservative or liberal. Drawing a distinction between law and politics, Justice Breyer wrote that not all splits on the court were predictable and that those that were could generally be explained by differences in judicial philosophy or interpretive methods.

In the interview, he acknowledged that the politicians who had transformed confirmation hearings into partisan brawls held a different view, but he said the justices acted in good faith, often finding consensus and occasionally surprising the public in significant cases.

“Didn’t one of the most conservative — quote — members join with the others in the gay rights case?” he asked in the interview, referring to Justice Neil M. Gorsuch’s majority opinion last year ruling that a landmark civil rights law protects gay and transgender workers from workplace discrimination.

Justice Breyer made the point more broadly in his new book. “My experience from more than 30 years as a judge has shown me that anyone taking the judicial oath takes it very much to heart,” he wrote. “A judge’s loyalty is to the rule of law, not the political party that helped to secure his or her appointment.”

Progressive groups and many Democrats were furious over Senate Republicans’ failure to give a hearing in 2016 to Judge Merrick B. Garland, President Barack Obama’s third Supreme Court nominee. That anger was compounded by the rushed confirmation last fall of Justice Amy Coney Barrett, President Donald J. Trump’s third nominee, just weeks after the death of Justice Ruth Bader Ginsburg and weeks before Mr. Trump lost his bid for re-election.

Liberals have pressed Mr. Biden to respond with what they say is corresponding hardball: expanding the number of seats on the court to overcome what is now a 6-to-3 conservative majority. Mr. Biden responded by creating a commission to study possible changes to the structure of the court, including enlarging it and imposing term limits on the justices.

He was in a characteristically expansive mood, but he was not eager to discuss retirement. Indeed, his publisher had circulated ground rules for the interview, saying he would not respond to questions about his plans.

washington post logoWashington Post, Supreme Court strikes down CDC’s eviction moratorium, Robert Barnes, Rachel Siegel and Jonathan O'Connell, Aug. 27, 2021 (print ed.). A divided Supreme Court has ended a national moratorium on evictions in parts of the country ravaged by the coronavirus pandemic, removing protections for millions of Americans who have not been able to make rent payments.

A coalition of landlords and real estate trade groups in Alabama and Georgia challenged the latest extension of a moratorium imposed by the Centers for Disease Control and Prevention, issued Aug. 3 and intended to run through Oct. 3.

In an unsigned opinion released Thursday night, the Supreme Court’s conservative majority agreed that the federal agency did not have the power to order such a ban.

“It is indisputable that the public has a strong interest in combating the spread of the COVID-19 Delta variant,” the majority’s eight-page opinion said. “But our system does not permit agencies to act unlawfully even in pursuit of desirable ends. . . . It is up to Congress, not the CDC, to decide whether the public interest merits further action here.”

The court’s three liberal justices dissented and said the majority’s rush to end the moratorium was inappropriate and untimely.

washington post logoWashington Post, Comments on body parts, questions about pregnancy: Court filing alleges harassment in judiciary, Ann E. Marimow, Aug. 27, 2021 (print ed.). In support of a lawsuit filed by a former public defender in North Carolina, more than 20 current and former law clerks and employees of federally funded public defender’s offices and the Administrative Office of the U.S. Courts in Washington offered firsthand accounts of a system that they say still lacks protections and procedures to hold officials accountable.

“I watched for over 20 years and what I saw, every step of the way, was the judiciary circling the wagons any time there was a complaint made by an employee,” said Laura C. Minor, the former equal employment opportunity officer for the court’s administrative office and former secretary of the Judicial Conference, the policymaking body for federal courts that is overseen by Chief Justice John G. Roberts Jr.

“It was impossible for an employee to break through that.”

Read the brief submitted Thursday detailing alleged harassment

In response to the new allegations Thursday, the court’s administrative office said it could not comment on pending litigation. But it defended its current policies and procedures as providing “robust protections for our employees” with options for anonymously reporting concerns.

Aug. 25

ny times logoNew York Times, Supreme Court Allows Revival of Trump-Era ‘Remain in Mexico’ Asylum Policy, Adam Liptak, Aug. 25, 2021 (print ed.). The court’s unsigned order refused to stay a ruling from a federal judge in Texas forbidding the Biden administration from ending the policy.

The Supreme Court on Tuesday refused to block a ruling from a federal judge in Texas requiring the Biden administration to reinstate a Trump-era immigration program that forces asylum seekers arriving at the southwestern border to await approval in Mexico.

The court’s brief unsigned order said that the administration had appeared to act arbitrarily and capriciously in rescinding the program, citing a decision last year refusing to let the Trump administration rescind the Obama-era program protecting the young immigrants known as dreamers.

The court’s three more liberal members — Justices Stephen G. Breyer, Sonia Sotomayor and Elena Kagan — said they would have granted a stay of the trial judge’s ruling. They did not give reasons. The case will now be heard by an appeals court and may return to the Supreme Court.

The challenged program, known commonly as Remain in Mexico and formally as the Migrant Protection Protocols, applies to people who left a third country and traveled through Mexico to reach the U.S. border. After the policy was put in place at the beginning of 2019, tens of thousands of people waited for immigration hearings in unsanitary tent encampments exposed to the elements. There have been widespread reports of sexual assault, kidnapping and torture.

Judge Kacsmaryk suspended his ruling for a week, and the U.S. Court of Appeals for the Fifth Circuit, in New Orleans, refused to give the administration a further stay while it pursued an appeal, prompting an emergency application for a stay in the Supreme Court. On Friday, shortly before the ruling was to go into effect, Justice Samuel A. Alito Jr. issued a short stay to allow the full Supreme Court to consider the matter.

The Supreme Court has had previous encounters with the program. In response to an emergency application from the Trump administration, the court revived the program last year after a federal appeals court blocked it.

President Biden suspended and then ended the program. Texas and Missouri sued, saying they had been injured by the termination by having to provide government services like drivers’ licenses to immigrants allowed into the United States under the program.

On Aug. 13, Judge Matthew J. Kacsmaryk of the U.S. District Court for the Northern District of Texas, in Amarillo, ruled that a federal law required returning noncitizens seeking asylum to Mexico whenever the government lacked the resources to detain them.

That was a novel reading of the law, the acting solicitor general, Brian H. Fletcher, told the justices. That view had “never been accepted by any presidential administration since the statute’s enactment in 1996,” including the Trump administration, he said.

Aug. 24

 

PRESUMED GUILTY
How the Supreme Court Empowered the Police and Subverted Civil Rights
By Erwin Chemerinsky

ny times logoNew York Times, Book Review: A Supreme Court That Has Gone Wrong, Melvin I. Urofsky, Aug. 24, 2021. In the mid-1980s, several scholars — including myself warren burger o— published analyses of the Supreme Court under Chief Justice Warren Burger, right, comparing it with the preceding Earl Warren era, and nearly all of us concluded that there had not been much of a jurisprudential change.

The consensus was summed up in the subtitle of one book, The Counter-Revolution That Wasn’t. After reading Presumed Guilty, Erwin Chemerinsky’s stunning indictment of the Burger court, and of the Rehnquist and Roberts courts that followed, all of us would have to make major revisions if there were ever to be new editions.

As anyone teaching constitutional law or history can tell you, very few cases came before the Supreme Court prior to 1953 involving the Fourth, Fifth and Sixth Amendments to the Constitution, the ones that provide protections for people accused of crimes. In 1833, the Supreme Court had held that the Bill of Rights did not apply to the states, but starting in the 1920s, the court interpreted the due process clause of the 14th Amendment to “incorporate” the protections of the Bill of Rights and apply them to the states as well as the federal government. The criminal clauses were among the last to be adopted, and nearly all the major cases came during the years that Earl Warren, left, presided over the court (1953-69).

earl warrenThe Warren court is clearly the hero of Chemerinsky’s tale, in that for the first and only time in our judicial history a majority of the justices cared about the rights of the accused. The court, among other things, adopted the exclusionary rule banning evidence seized without a proper warrant, required states to provide lawyers for defendants who could not afford one and — perhaps most famously — required police to give the “Miranda” warning to those whom they detained.

These decisions caused an uproar among conservatives, and Richard Nixon promised that if elected he would appoint justices who favored law and order and the police rather than the criminals. Nixon got to name four men to the court — Burger, William Rehnquist, Harry Blackmun and Lewis Powell — who, together with Byron White, a Kennedy appointee who was conservative on everything except racial discrimination, formed the majority that, while it never overturned any of the Warren court’s major decisions, began hollowing them out. With the appointments of Reagan, the Bushes and Trump, that process has continued unabated.

Following the death of George Floyd in May 2020, a great public outcry arose against police brutality, especially involving people of color, and demands that police cease using chokeholds, stopping Black men for no seeming reason and shooting dozens of people of color each year. While well known within the Black community, the extent of this type of behavior shocked many white people, leading them to join protests around the country.

What most people do not know is the extent to which this behavior has been condoned by the judicial system, and here Chemerinsky presents a damning indictment of the Supreme Court. In case after case, the nation’s highest tribunal has found that police actions, even when clearly in violation of constitutional prohibitions, are acceptable. The decisions have not only prevented citizens from getting injunctions against future use of such practices as chokeholds, they have also made it almost impossible for those who have been the victims of police brutality to win civil suits seeking compensation. As Chemerinsky declares, the court’s record “from 1986 through the present and likely for years to come, can easily be summarized: ‘The police almost always win.’”

Although Chemerinsky builds his argument case by case, this is not a dusty accounting where first the court did this, then it did that. Aside from the fact that he writes well, Chemerinsky, the dean of the law school at the University of California, Berkeley, is also an experienced advocate, having appeared before the court on many occasions, and also having served as a consultant to those police forces who either by choice or necessity have tried to overhaul their practices. He bolsters his argument with examples from his own experiences, and his telling of the cases always starts with the people involved. Some have been stopped, beaten up and hauled into jail for no other reason than that they were Black and in the wrong place at the wrong time.

Chemerinsky is doubtful that with the current makeup of the court any meaningful reform of police practices will result from judicial action. But while the justices, who willfully ignore the racial implications of their cases, rule that police forces can get away with almost anything, their decisions are not binding should Congress or state legislatures, or even municipal governments, enact rules governing police misbehavior. A chokehold or a warrantless search may not, in the eyes of conservative justices, violate the Constitution, but they have never ruled that the Constitution requires such practices. Chemerinsky details a number of ways state and local governments can and should reform police procedures without having to go to court.

Whether the furor unleashed by Black Lives Matter will lead to state and city governments reforming their police departments is yet to be seen, but all lawmakers, in fact all concerned citizens, need to read this book. It is an eloquent and damning indictment not only of horrific police practices, but also of the justices who condoned them and continue to do so.

Melvin I. Urofsky is the author of “Dissent and the Supreme Court” (2015) and, most recently, “The Affirmative Action Puzzle” (2020).

Aug. 21

supreme court resized 2021

ny times logoNew York Times, Opinion: As Democrats Renew Voting Rights Push, Offsetting Roberts Court Is Top of Mind, Carl Hulse, Aug. 21, 2021. The House’s voting rights legislation seeks to counter the Supreme Court’s longstanding bid to undermine the Voting Rights Act, our columnist writes.

When Judge John G. Roberts Jr., right, faced the Senate for his Supreme Court confirmation hearing in September 2005, critics sounded the alarm about his john roberts olongstanding skepticism toward the 1965 Voting Rights Act, which many view as crucial to the political gains of Black Americans over the last half century.

“I fear that if Judge Roberts is confirmed to be chief justice of the United States, the Supreme Court would no longer hear the people’s cries for justice,” Representative John Lewis, the civil rights leader from Georgia, said in urging the Senate Judiciary Committee to reject the nomination.

Judge Roberts was easily confirmed by the Republican-controlled Senate despite pleas from Mr. Lewis and other civil rights activists. He went on to oversee the court in rulings that weakened the Voting Right Acts, compromising its decades-long role as a protector of minority access to the ballot box across much of the South. Mr. Lewis died last July, just months before Republican state legislatures enacted an onslaught of voting restrictions after the 2020 elections.

But it is not only those legislatures that Democrats see as their adversaries on election issues.

“We are also up against a Supreme Court that is keen on destroying our nation’s most consequential voting rights law,” Representative Terry A. Sewell, Democrat of Alabama, said this week during a Democratic call celebrating the anniversary of women’s right to vote.

While Mr. Lewis may be gone, House Democrats hope to keep his spirit alive by passing a bill bearing his name next week that they hope will offset what Speaker Nancy Pelosi has called “disastrous” and “shameful” decisions undermining voting rights by the Roberts-led court.

The John Lewis Voting Rights Advancement Act is one element of a two-pronged legislative effort by Democrats to protect minority voting rights. A much broader bill, the For the People Act, would impose an array of requirements on states to expand voting by mail and early voting along with extensive provisions on ethics, campaign finance and redistricting.

The bill named for Mr. Lewis is narrower and focuses on restoring the power of the Voting Rights Act. Both measures face a bleak future in the Senate, where Republicans are nearly unanimous in their opposition to them.

But Democrats, who control the evenly divided chamber with Vice President Kamala Harris’s tiebreaking vote, say they have not given up.

“Republicans refusing to support anything on voting rights is not an excuse for Democrats to do nothing,” said Senator Chuck Schumer, Democrat of New York and the majority leader, promising that Democrats would make the legislation a priority when they return after Labor Day.

Democrats are scaling back the broader bill to unite their party for coming votes. The Lewis measure already has the backing of all 50 senators who caucus with Democratic leadership, including Senator Joe Manchin III of West Virginia, the sole Democrat who did not endorse the For the People Act. He has also enlisted the support of a lone Republican, Senator Lisa Murkowski of Alaska, far from the minimum of 10 Republicans needed to overcome a filibuster.

The Lewis measure is aimed at reinvigorating the voting protections Democrats say were lost in two Supreme Court decisions that “gutted” the landmark underlying law — Shelby County v. Holder and Brnovich v. Democratic National Committee. The first, with a majority opinion written by Chief Justice Roberts in 2013, rendered moot a requirement that state and local governments with a history of imposing discriminatory voting laws receive “preclearance” from the Justice Department or a federal court in Washington before making changes to how people voted. The second, with a majority opinion written by Justice Samuel A. Alito Jr. last month, made it harder for minority voters to prove they were being discriminated against by asserting that the relevant part of the Voting Rights Act could be used only to strike down substantial voting restrictions, not merely inconvenient ones.

Aug. 19

Proof via Substack, Investigation: New Pre-Insurrection Strategy Meetings #1: Reps. Mo Brooks and Jim Jordan, Mark Meadows, Donald Trump, and 50 seth abramson graphicHouse Republicans, Seth Abramson, left, Aug. 19, 2021. In this new entry in a Proof series focused on lightly or non-reported pre-insurrection meetings involving insurrectionist kingpins, we discuss a secretive GOP-caucus call no one seems to be aware of.

Introduction: Most Americans don’t yet realize how much planning Congressional Republicans did prior to January 6 to ensure that that seth abramson proof logoterrible day would be as chaotic as possible.

The lightly and in some cases unreported meetings that top Washington Republicans held between January 2 and January 5—including White House meetings—explain why the Republican Party writ large can under no circumstances cooperate with the new House January 6 Committee. It is now a certainty that if that committee conducts a comprehensive review of top Republicans’ movements in the 120 hours preceding the January 6 attack on the Capitol, it will discover an institutionalized insurrectionist conspiracy the GOP must hide from voters if it is to take back the House in late 2022.

Proof previously began the process of reporting on largely or entirely unreported pre-insurrection strategy sessions with this article, among whose stunning revelations was a national conference call held by Donald Trump with state GOP officials on January 2. That call, which included nearly 300 such officials and was both highly irregular and conducted on a weekend, would have been more than enough covert insurrectionist business for a President of the United States to conduct a single day. But it turns out that it wasn’t the only major pre-insurrection meeting Donald Trump chaired that day.

This article is about a second such meeting.

Read more at the Proof site to see the revelations....

Seth Abramson, shown above and at right, is founder of Proof and is a former criminal defense attorney and criminal investigator who teaches digital journalism, seth abramson resized4 proof of collusionlegal advocacy, and cultural theory at the University of New Hampshire. A regular political and legal analyst on CNN and the BBC during the Trump presidency, he is a best-selling author who has published eight books and edited five anthologies.

Abramson is a graduate of Dartmouth College, Harvard Law School, the Iowa Writers' Workshop, and the Ph.D. program in English at University of Wisconsin-Madison. His books include a Trump trilogy: Proof of Corruption: Bribery, Impeachment, and Pandemic in the Age of Trump (2020); Proof of Conspiracy: How Trump's International Collusion Is Threatening American Democracy (2019); and Proof of Collusion: How Trump Betrayed America (2018).

ny times logoNew York Times, Texas Can Ban Common Form of Abortion, Appeals Court Rules, Azi Paybarah, Updated Aug. 19, 2021. At issue is a state law that prohibits a form of second-trimester abortion, which was passed in 2017 but never went into effect due to legal battles.

A federal appeals court on Wednesday upheld a Texas law banning the most common form of second-trimester abortion, ruling that a lower court had erred in finding that the law imposed “an undue burden on a large fraction of women.”

At issue is a Texas law that was passed in 2017 but has not yet been in effect because of legal battles. The law, known as Senate Bill 8, prohibits a dilation-and-evacuation abortion method and requires doctors to use alternative abortion methods, according to Wednesday’s decision by the U.S. Court of Appeals for the Fifth Circuit.

A Federal District Court judge had found that the 2017 law “imposes an undue burden on a large fraction of women” because it “amounted to a ban on all D&E abortions.”

That interpretation is wrong, the appeals court said on Wednesday. Records show that “doctors can safely perform D&Es and comply with SB8 using methods that are already in widespread use,” according to Wednesday’s ruling.

The lower court “committed numerous, reversible legal and factual errors,” according to the decision on Wednesday.

“Accordingly,” it continued, “we VACATE the district court’s permanent injunction.”

The Texas law is one of many abortion restrictions enacted in recent years by Republican-controlled state legislatures emboldened by the Supreme Court’s rightward shift. The Supreme Court is set to hear arguments in the fall over a Mississippi law that bans most abortions after 15 weeks of pregnancy, a direct challenge to the constitutional right to abortion established in 1973 in Roe v. Wade.

Aug. 14

Proof via Substack, Investigation: New Revelations on An Insurrection Eve White House Meeting Suggest It Should Be at the Center of the Congressional January 6 seth abramson graphicInvestigation, Seth Abramson, left, Aug. 13-14, 2021. Trump hosted a meeting at the White House hours before the January 6 insurrection. Congress and media must give it significant scrutiny — as it increasingly looks like pre-insurrection planning.

Introduction: Back in late March, Proof authored an exclusive report revealing that dangerous far-right internet troll Rogan O’Handley attended a secret meeting at the White House just hours before the attack on the United States Capitol.

seth abramson proof logoProof termed the meeting “secret” because—by O’Handley’s own admission—that’s what it was. Indeed, when he spoke to a large insurrectionist mob at Freedom Plaza immediately after leaving the event at the White House, he told them that he “can’t” reveal even a single attendee of the Insurrection Eve meetup he’d just attended at the People’s House.

That O’Handley was admitted to the White House with a number of unknown parties hours before the worst attack on our nation’s capital since 1814 was deemed by Proof especially harrowing because of what O’Handley, either directed or merely inspired by his White House meeting, told the mob at Freedom Plaza.

As Proof noted in publishing its report on the secret White House meeting, here, with emphasis supplied, is some of what O’Handley said fresh from his visit to the White House (at a time he was sharing a stage—literally—with domestic terrorist Ali Alexander):

It may be forty degrees out here, but it sure feels like 1776. I was just at the White House. I can’t tell you who I was meeting with, but they’re optimistic. They think something good is going to happen tomorrow. All I gotta say is, “It damn well better happen,” because I don’t want to see these patriots more pissed off than they already are—in DC, right next to Congress….If you want to see what patriots do when they get in an uprising, then vote to certify the fraud tomorrow. But you better make the right decision tomorrow, or you're gonna have a whole lot of pissed off patriots in DC.

Here’s the video of O’Handley’s inciting speech, which includes the shouted message to members of the U.S. Congress, “YOU SHOULD BE AFRAID OF US! WE ARE NOT GOING ANYWHERE! NO MATTER WHAT HAPPENS [TOMORROW]!” Right Wing Watch @RightWingWatch "If you want to see what patriots do when they get in an uprising, then vote to certify the fraud tomorrow."

Rogan O’Handley, aka DC Draino, fired up crowd the night before the insurrection. He said he'd come from the White House where they expected "something good" the next day.

Read more at the Proof site to see what's new....

Seth Abramson, shown above and at right, is founder of Proof and is a former criminal defense attorney and criminal investigator who teaches digital journalism, seth abramson resized4 proof of collusionlegal advocacy, and cultural theory at the University of New Hampshire. A regular political and legal analyst on CNN and the BBC during the Trump presidency, he is a best-selling author who has published eight books and edited five anthologies.

Abramson is a graduate of Dartmouth College, Harvard Law School, the Iowa Writers' Workshop, and the Ph.D. program in English at University of Wisconsin-Madison. His books include a Trump trilogy: Proof of Corruption: Bribery, Impeachment, and Pandemic in the Age of Trump (2020); Proof of Conspiracy: How Trump's International Collusion Is Threatening American Democracy (2019); and Proof of Collusion: How Trump Betrayed America (2018).

Aug. 12

amy coney barrett cnbc

washington post logoWashington Post, Supreme Court won’t block Indiana University vaccine mandate as Justice Barrett rejects student plea, Robert Barnes, Aug. 12, 2021. Justice Amy Coney Barrett on Thursday rejected a plea from a group of Indiana University students to stop the university’s requirement that all students be vaccinated against the coronavirus.

Barrett, above, who received the request because she is the Supreme Court justice tasked with emergency petitions from that region of the country, did not give a reason. It appears she made the decision on her own, as she did not mention referring the matter to the other justices.

indiana universityIt was the first case about vaccination requirements to reach the Supreme Court. Both a federal district judge and a unanimous panel of the U.S. Court of Appeals for the 7th Circuit had previously rejected the request that the university’s requirement be put on hold while the issue was further litigated.

The university in May required all faculty, students and staff to be vaccinated unless they applied and qualified for an exemption, such as a religious objection or a medical reason for not receiving the vaccine.

Aug. 2

U.S. Insurrection Probes, Commentaries

Trump ally Steve Bannon, left, with his billionaire partner Guo Wengui, a fugitive from China.

Trump ally Steve Bannon, left, indicted last year in a massive fraud scheme but pardoned by Trump, with his billionaire partner Guo Wengui, a fugitive from China.

Wayne Madsen Report, Investigative Commentary: Foreign cash bought the White House for Trump, Wayne Madsen (left, author of 20 books and former Navy intelligence officer), Aug. 2, 2021. Projection sums up the entire wayne madsen may 29 2015 cropped Smallfour years of Donald Trump's chaotic administration in that while he and his cohorts were trying to convince the world that Joe Biden was tied financially in some way to Ukraine and China, his administration was bought and wayne madesen report logopaid for by foreign interests.

In addition to cash outlays to Team Trump, Steve Bannon's international bloc of fascist parties and individuals contributed in kind with social media gaslighting and other propaganda campaigns designed to perpetuate unfounded rumor on Biden, Covid-19, and other subjects.

Repeated attempts by Congress to close campaign finance loopholes that permit foreign money to flow into the campaign coffers of American political candidates have met with failure. For the most part, it has been Trump loyalists in the U.S. Senate, many there due to foreign money helping to pay for their seats, that have deep-sixed repeated bills originating in both the House and the Senate designed to stop foreign money infusion into U.S. campaigns. 

Trump ally and Trump ally and "Stop the Steal" promoter Roger Stone, with (from left) allies Jacob Engels, Christina Engelstad and Joseph Greco last January (Photo via Proof).

Proof via Substack, Investigation: Trump Adviser Roger Stone Was Closely Attended By a Leading Proud Boy Just Before a Proud Boy Arson, a Proud Boy Riot, and the Proud Boys' Capitol Attack, Seth seth abramson graphicAbramson, left, Aug. 2, 2021. Images confirm that Stone had a level of access to January 6 insurrectionists well beyond what has been reported by major media, and during a period the longtime Trump adviser was in touch with Trump.

seth abramson proof logoIntroduction: As Proof has reported, longtime Donald Trump friend and adviser Roger Stone has consistently lied about every aspect of his trip to Washington in early January 2021, even as he refuses to reveal details about what he discussed with Trump at Mar-a-Lago when the two met there on December 28, 2020 — just nine days before the insurrection. Of late, Stone has been particularly focused on establishing who was or was not in his suite at the Willard Hotel on Insurrection Day. Perhaps to counterbalance the fact that he was rooming with convicted felon Kristin M. Davis, Stone has emphasized the fact that also in his suite at the Willard were two pastors, Randy Coggins II and Mark Burns.

Less clear is why Stone was walking the halls of the hotel on Insurrection Day with a binder of information, as Proof has reported, or why Davis now says Stone was hanging out with “literally fifty” insurrectionists at the Willard on January 6. Davis, who holds herself out as Stone’s PR flack, wrote an apologia for Stone in July that was soon deleted from the fake-news site that published it, a seeming acknowledgment that, as FBI investigators appear to be closing in on Stone as a potential insurrection kingpin, the less he or his team say about January 6 the better.

And yet Stone himself has already lied about that day so many times that anything he tells the FBI now will directly contradict at least two or three of prior public statements.

Seth Abramson, shown above and at right, is founder of Proof and is a former criminal defense attorney and criminal investigator who teaches digital journalism, seth abramson resized4 proof of collusionlegal advocacy, and cultural theory at the University of New Hampshire. A regular political and legal analyst on CNN and the BBC during the Trump presidency, he is a best-selling author who has published eight books and edited five anthologies.

Abramson is a graduate of Dartmouth College, Harvard Law School, the Iowa Writers' Workshop, and the Ph.D. program in English at University of Wisconsin-Madison. His books include a Trump trilogy: Proof of Corruption: Bribery, Impeachment, and Pandemic in the Age of Trump (2020); Proof of Conspiracy: How Trump's International Collusion Is Threatening American Democracy (2019); and Proof of Collusion: How Trump Betrayed America (2018).

washington post logoWashington Post, Opinion: Biden cannot sit back and let our democracy sink. He’s now showing us he gets that, E.J. Dionne Jr., right, Aug. 2, 2021 (print ed.). ej dionne w open neckPresident Biden’s infrastructure bill defied predictions of its impending death again and again and again. Voting rights and political reform have been the subject of early obituaries even more dire. To protect our democracy, Biden has no choice but to prove these wrong, too.

The broad bipartisan vote to move forward on a physical infrastructure bill really was a big deal. It marked a decisive break from the dominance of a form of conservative politics that cast even the most basic forms of government action as wasteful. In tandem with the larger Democrats-only bill, it could herald a new era of social reform and public investment.

But if Biden has been right in saying that our democracy’s health depends on the political system demonstrating its capacity to undertake ambitious projects, Joe Biden portrait 2our democracy’s success also requires — well, that it remain a democracy.

That’s in question as Republican states (18 at last count) enact laws to limit access to the ballot and, in many cases, corrupt the election process itself by undercutting independent, nonpartisan ballot counting.

Democratic-Republican Campaign logosThus the importance of Friday’s White House meeting, in which Biden joined House Speaker Nancy Pelosi (D-Calif.) and Senate Majority Leader Charles E. Schumer (D-N.Y.) to craft a strategy to enact political reform and voting rights bills.

The meeting reflected a growing awareness inside the Biden camp that it cannot hang back and let democracy legislation founder while offering false hope that political organizing can overcome voter suppression and extreme gerrymandering.

As Rep. Mondaire Jones (D-N.Y.) told me, after Biden’s “intimate engagement” in negotiating the bipartisan infrastructure bill with the Senate, the administration cannot now claim the filibuster is purely that chamber’s business.
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Reflecting a view widely held by civil rights leaders, Jones argued that Biden must match the energy he devoted to infrastructure with an equally spirited push on voting rights, including — if needed — a willingness to back a change in Senate rules.

A White House statement after the meeting did not mention the filibuster. But it declared that “passing legislation to protect against voter suppression, electoral subversion, dark money and partisan gerrymandering” was a “moral imperative.”

Jones described Pelosi as “enormously strong” on the issue because she “gets that everything is at stake.” That was the message the speaker sent after the White House encounter: “This is of the highest priority for us.”

Schumer, too, has gone on offense, hosting efforts by Democratic Sens. Amy Klobuchar (Minn.), Raphael G. Warnock (Ga.), Joe Manchin III (W.Va.), Jeff Merkley (Ore.) and others to write a new version of the political reform bill rooted in many of Manchin’s suggestions for easier ballot access. The bill will also include new provisions to try to stop partisan bodies from pushing aside local election officials and nullifying election results.

 

July

July 23

ny times logoNew York Times, The Supreme Court Needs to Be Cut Down to Size, Jamelle Bouie, right, July 23, 2021. On Tuesday, the Presidential Commission on the jamelle bouieSupreme Court of the United States sat for its third public meeting. Formed in April by executive order, the 36-member commission exists to hear arguments for and against Supreme Court reform and to analyze and appraise the merits of specific proposals.

President Biden did not run on court reform and rejected “court packing” during the 2020 campaign. But after Donald Trump and Mitch McConnell pushed Amy Coney Barrett through the Senate in a harried bid to replace Ruth Bader Ginsburg before the presidential election, he could not resist calls from within the Democratic Party to do something.

The commission is Biden’s something, and it isn’t much to look at. Not only is it not meant to make recommendations or suggest a course of action, but its members come from the upper echelon of the legal elite — exactly the people most comfortable with the institutional status quo on the Supreme Court.

But this doesn’t mean the commission is worthless. It may not offer needed reforms, but in its three meetings so far it has already served as a valuable platform for scholars with a cleareyed view of the court and a powerful critique of its current role within the nation’s constitutional order. If nothing else, the commission has helped elevate important ideas and perspectives the broader public needs to hear. It is interesting, illuminating and worthy of your attention.

Media, Whistleblower News

daniel ellsberg umass

Society of Professional Journalists (SPJ), Whistleblower Summit and Film Festival, virtual events, begins with screenings starting Friday, July 23, and panel discussions starting Sunday, July 25; DC Pro president joins opening plenary July 26, Staff Report, July 23, 2021. SPJ DC Pro Chapter is a co-sponsor of the Whistleblower Summit and Film Festival this year, with a panel presentation on July 27. A chapter board member and a chapter Distinguished Service Award honoree will be participating on another panel July 30.

Here is a schedule for panels and screenings (subject to updates). All sessions will be held via Zoom; the film screenings will be streamed online.

Keynote speaker is whistleblower Daniel Ellsberg (shown above in a University of Massachusetts photo), at noon on July 30, in recognition of his role in releasing documents that led to the publication of excerpts in The New York Times of what came to be called the Pentagon Papers, 50 years ago this summer.

DC Pro Chapter President Randy Showstack will represent the chapter during the opening plenary on Monday, July 26, at 10 a.m., joining other sponsors or collaborators. They include:

Panelists:

  • Marcel Reid, Pacifica Foundation
  • Michael McCray, ACORN 8
  • Andrew Kreig (also a DC Pro Chapter member), Justice Integrity Project
  • Randy Showstack, Society of Professional Journalists Washington, D.C., Pro Chapter
  • Liz Hemperwitz, Project on Government Oversight
  • Tom Devine, Government Accountability Project
  • Siri Nelson, National Whistleblower Center

Indefatigable chapter Recording Secretary and FOI advocate Kathryn Foxhall will moderate the 10 a.m. Tuesday, July 27 panel, "The Perils of PIO," which is described thus: "Over 20-30 years, it’s become a cultural norm for various entities, public and private, to prohibit staff from communicating with reporters without oversight by authorities, often through public information officers (PIO). The basic part of this is quite fearsome: prohibition against any contact without notifying authorities. However, the rules also create a chokepoint severely limiting the number of contacts. They are also used to deliberately block unwanted contacts and constrain what can be said.

"This hampers whistleblowing by massively reducing reporters’ ability to get to know and be educated by staff; have staff come to trust them; and have confidential conversations. The Society of Professional Journalists has said it believes secrecy caused by these controls led to significantly higher COVID-19 death toll. An analysis by First Amendment attorney Frank LoMonte says the restrictions are unconstitutional and many courts have said so."

Panelists:

  • Kathyrn Foxhall (Moderator) The SPJDC.org website has articles about "Censorship by PIO" and resources.
  • Frank LoMonte, head of the Brechner Center for Freedom of Information at the University of Florida
  • Haisten Willis, freelance journalist and chair of national SPJ's Freedom of Information Committee

Ahead of the keynote speech by Ellsberg -- at 10 a.m. on Friday, July 30 -- DC Pro Chapter board member and attorney Kenneth Jost will join chapter DSA awardee Gene Policinski, chief operating officer of the Freedom Forum Institute and the institute's First Amendment Center, on a panel looking at the "Ramifications of the Pentagon Papers Today." The panel description says that the July 3, 1971, publication in The New York Times of what is now known as the Pentagon Papers prompted a series of events that ultimately resulted in the resignation of President Richard Nixon and changed the landscape for American journalism due to a landmark decision on freedom of the press (New York Times Co. v. United States). This informative panel will examine the long-term impact of the publishing of the Pentagon Papers on free speech, whistleblowing, investigative journalism and American society overall.

Panelists:

  • Gene Policinski, JD (Moderator)
  • Mark Zaid, JD
  • Kenneth Jost, JD

Access to streaming of panels and the films is here. More information on the Summit can be found here. Specific questions may be directed to This email address is being protected from spambots. You need JavaScript enabled to view it. or by calling (202) 370-6635. July 30 also is National Whistleblower Appreciation Day. The National Whistleblower Center invites you to register for its virtual all-day event marking the occasion.

July 18 

ny times logoNew York Times, Opinion: Merrick Garland Needs to Show He Knows What Jan. 6 Was Really About, Donald Ayer, Danielle Brian and Norman Eisen, July 18, 2021. Mr. Ayer was a deputy attorney general in the George H.W. Bush administration. Ms. Brian is the executive director of the Project On Government Oversight. Mr. Eisen served as special counsel to the House Judiciary Committee during the first Trump impeachment.

mo brooks oWhen Mo Brooks, left, took his oath of office as a U.S. representative, he swore to support and defend the Constitution. His official duties certainly don’t include what Mr. Brooks is accused of doing in a civil lawsuit pending in Washington federal court: helping to incite a mob to storm the Capitol on Jan. 6.

merrick garlandRepresentative Eric Swalwell, a California Democrat, sued Mr. Brooks, an Alabama Republican, and others for damages suffered as a result of their roles in the Capitol riot. Mr. Brooks has asked Attorney General Merrick Garland to certify that his actions on Jan. 6 were those of a government employee acting within the scope of his employment. The Justice Department must say if it will defend Mr. Brooks by July 27.

If the attorney general, right, were to certify and the court agreed, Mr. Brooks would be dismissed from the lawsuit under a federal statute. The United States would be substituted as a defendant instead.

Mr. Garland’s choice is important in its own right, but it also carries ramifications for cases targeting possible official wrongdoing in the Trump era, including by the former president himself. Mr. Garland should emphatically reject Mr. Brooks’s request to make this certification, because our nation deserves a full accounting for those involved in the storming of the Capitol and any other assaults on our democracy.

Justice Department log circularThe case arises from Mr. Brooks’s appearance at the “Save America” rally in Washington on Jan. 6. All Americans are entitled to petition their government under the Constitution.But in our view, Mr. Brooks’s instructions went beyond these protections. He urged the assembled crowd to “fight for America” and “stop” at the Capitol, where the electoral transition would take place.

“Today the curtain will be pulled back and American patriots will learn by their votes which Republican senators and congressmen have the courage to fight for America,” Mr. Brooks said. “Today Republican senators and congressmen will either vote to turn America into a godless, amoral, dictatorial, oppressed and socialist nation on the decline or they will join us and they will fight and vote against voter fraud and election theft and vote for keeping America great.” He added, “Today is the day American patriots start taking down names and kicking ass.” (In response to the suit, Mr. Brooks said he was talking in his speech about the 2022 and 2024 elections.)

We all know what happened next.

Determining when arguably wrongful conduct by a federal employee nonetheless occurred within the scope of his or her employment duties often involves a difficult exercise of judgment. The issue is not whether the employee committed a wrongful act — bad things can happen on the job. At the same time, not everything an employee does is within the scope of his job.

The Constitution and laws of the United States are not, as Justice Robert Jackson once warned, a suicide pact. Certification that Mr. Brooks acted within the scope of his job would leave the United States government defending the right of its elected representatives to foment insurrection against itself.

The decision before the Justice Department could also have an impact on other cases, including those against Mr. Trump. He, too, is a defendant in Representative Swalwell’s suit over his incitement at the same rally. If Mr. Brooks is immunized, how long before Mr. Trump seeks the same? There is also the Georgia criminal investigation of Mr. Trump’s efforts to have state officials “find 11,780 votes.” He surely would point to any precedent Mr. Garland set here to argue that that was official, too. Who knows what other yet-to-be revealed conduct would be swept within this new safe harbor for wrongdoing?

Our future depends on our resolve in adhering to our basic democratic values — among them, that truth is a key to the functioning of our electoral system. And that demands that Attorney General Garland unequivocally reject any notion that a congressman is doing his job when he foments a riot based on lies in order to sabotage a legitimate national electoral process.

washington post logoWashington Post, Opinion: How the Supreme Court dominates our democracy, Nikolas Bowie (an assistant professor of law at Harvard Law School, where he teaches federal and state constitutional law and local government law). July 18, 2021 (print ed.). Judicial review gives any five justices power over the whole government. Why?

Because the Supreme Court undermined or ignored Congress’s attempts to enforce the Constitution, the racial caste system that we know as Jim Crow emerged like an invasive species. With the court’s approval, White people in the South terrorized Black voters, disenfranchised them and enacted state laws to codify their place at the bottom of a racial hierarchy.

Today, as American democracy enters a midlife crisis, the Supreme Court has often been heralded as democracy’s guardian. Decisions dating from 1954’s Brown v. Board of Education are seen by many as essential responses to the tyranny of the majority.

Yet it appears that the court has reverted to its older ways. In 2013, a justice sneered at Congress’s nearly unanimous reauthorization of the Voting Rights Act, calling it the “perpetuation of a racial entitlement.” He was soon joined by four of his colleagues in the Shelby County decision, which treated a central provision of the Voting Rights Act as beyond Congress’s power to enact “appropriate” legislation. And in its Brnovich decision this month, the court stuck a second dagger into the act, calling it too “radical” to be enforced as written.

washington post logoWashington Post, Opinion: Major Supreme Court reform is unlikely. But these changes would be a good start, Daniel Epps (Treiman professor of law at Washington University in St. Louis), July 18, 2021 (print ed.). New ethics rules might prevent conflicts of interest — and it’s time to televise arguments.

Expectations that Democrats will be able to substantially reform the Supreme Court — perhaps by adding new members — have nosedived recently. Even before President Biden’s blue-ribbon Supreme Court commission met for the first time, progressives were lamenting that its generally moderate and bipartisan members were unlikely to endorse bold changes to the court’s structure. And even if they did, major reforms appear politically impossible with Democrats’ extraordinarily narrow advantage in the Senate.

So court-packing is almost certainly off the table, as most likely are term limits for justices. But that doesn’t mean Supreme Court reform is dead. Narrower changes could find bipartisan support on Biden’s commission, in Congress and perhaps even among the justices themselves. These reforms certainly wouldn’t solve the biggest problems critics see with today’s court. But they would still be worth implementing to help fix some smaller ones.

What changes might be viable? Perhaps the most likely — as the Vanderbilt law professor Ganesh Sitaraman and I argue in a recent Harvard Law Review Forum essay — is ethics reform. Although federal judges are bound by a code of ethics, no rules govern Supreme Court justices.

A related issue is transparency. The court is a famously secretive institution that has resisted measures to make its work more visible to the public. Most notably, justices have refused to televise arguments. But the justices may not be able to hold out much longer.

washington post logoWashington Post, Opinion: In Texas, vigilantism replaces the rule of law, Ruth Marcus, right, July 18, 2021 (print ed.). Leave it to Texas to ruth marcus twitter Customcome up with a way to violate women’s constitutional rights with a modern twist on vigilante justice.

At least eight states have passed laws that purport to prohibit abortions early in pregnancy — so-called fetal heartbeat laws that would bar abortion as early as six weeks, before many women even know they are pregnant.

“Purport to” is the operative phrase here, however. Because these laws are clearly unconstitutional — at least until the Supreme Court says differently — federal judges have stepped in to block them from taking effect.

texas mapNow Texas has come up with a mechanism to end-run the federal courts — or so it believes. The state’s new law bars abortion once there is a “detectable” fetal heartbeat. But it prohibits state government officials from enforcing the ban. Instead, it outsources that job to private individuals — antiabortion vigilantes — who are deputized to go to state court to sue anyone who performs a supposedly illegal abortion or “aids or abets” such a procedure.

Their reward? A bounty of at least $10,000, plus legal costs. Imagine what that might mean in Texas, the state that brought you Roe v. Wade.

This is harassment waiting to happen. Anyone opposed to abortion could sue anyone — the relatives of a woman seeking an abortion, a counselor who phones a clinic to make an appointment, any doctor or nurse involved in the procedure — anywhere in the state at any time. If the law takes effect as scheduled on Sept. 1, the ensuing risk and chaos would shut down abortion providers in the state. Which is, of course, the goal.

July 15

ny times logoNew York Times, Opinion: On Voting Rights, Justice Alito Is Stuck in the 1980s, Linda Greenhouse (shown at right on the cover of her memoir), July 15, 2021. The Voting Rights Act decision that concluded the Supreme Court term this month linda greenhouse cover just a journalistoffered two mutually exclusive visions of what the right to vote means today.

Justice Samuel Alito’s opinion for the six-justice majority insisted that the law should pay little mind to the occasional “inconvenience” of casting a ballot. Justice Elena Kagan’s dissenting opinion, joined by two other justices, accused the majority of taking the “grand and obvious” right to an “equal opportunity to vote” and reducing it to nothing more than “equality-lite.”

The competing visions in the Brnovich v. Democratic National Committee decision reflected profoundly different understandings of what law needs to do to keep the basic mechanics of samuel alito odemocracy functioning. In that, it offered an almost perfect mirror of the partisan divide over the seemingly simple concept of the right to vote.

All nine justices were working from the same text, Section 2 of the Voting Rights Act of 1965, which prohibits any voting practice or procedure “which results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color” and instructs courts to consider “the totality of circumstances” in deciding whether a challenged practice has such an effect.

Even so, Justice Alito, left, called Justice Kagan’s interpretation of that language “radical”; Justice Kagan called his “tragic.” What could lead the two wings of the court to diverge so completely in interpreting that language?

The case concerned two Arizona voting regulations, which the court upheld. But that wasn’t what the dispute among the justices was really about or why the decision matters so much. The basic question was the meaning of the Voting Rights Act itself: what purpose it serves, what interests it protects.  

brett kavanaugh flag

Palmer Report, Opinion: What did Donald Trump know about Brett Kavanaugh? Ron Leshnower, July 15, 2021. In Michael Wolff’s new book, Landslide: The Final Days of the Trump Presidency, Donald Trump rails on all three of hisSupreme Court picks. That’s not too surprising, given that they didn’t magically overturn the election and transform Biden’s inauguration into a Trump coronation. However, Trump’s criticism of Brett Kavanaugh is revealing and could spell legal trouble for Kavanaugh nearly three years into his undeserved tenure.

bill palmer report logo header“Where would he be without me? I saved his life,” Trump ranted, according to an excerpt obtained by Axios. “He wouldn’t even be in a law firm. Who would have had him? Nobody. Totally disgraced. Only I saved him.” Trump isn’t just venting here. Trump is clearly suggesting what many people have long thought—that there’s much more to the Kavanaugh story that was never properly investigated.

Former federal prosecutor Glenn Kirschner believes that Trump’s statement constitutes new evidence for a formal Justice Department investigation into Kavanaugh, shown above. “What in the world did Donald Trump know about Brett Kavanaugh?” Kirschner wondered aloud in a recent video. “What did he learn during the nomination process that made it clear to Donald Trump that Kavanaugh was disgraced?”

Indeed, Trump’s statement was not some random vengeful utterance. Given the abbreviated sexual assault investigations, Kavanaugh’s mysteriously vanishing debt, and his seemingly perjurious testimony during his Senate confirmation hearing, Trump’s statement fits into a larger context that must no longer be ignored.

The Justice Department has its hands full now, thanks to a historically corrupt former guy, but investigating Kavanaugh shouldn’t require enormous resources. As Kirschner pointed out, the FBI can easily interview Kavanaugh’s friends (“boys”) to corroborate Kavanaugh’s explanation of his evaporating debt: “Did you happen to give Brett Kavanaugh $200,000 in cash for baseball tickets? No? Hmm! Well, that’s interesting.”

It’s not too late to launch a formal investigation into Kavanaugh. Also, the fact there is a new administration is legally irrelevant because, as Kirschner pointed out, “there is no grandfather clause.” Kirschner then summed it up perfectly. “All of that has to be investigated, not as political payback, not as retribution, not as election revenge, but because it’s the right thing to do… because justice matters.”

July 9

washington post logoWashington Post, Constitutional lawyers call Trump’s First Amendment defense against Jan. 6 lawsuits ‘spurious,’ Spencer S. Hsu, July 9, 2021. Committee investigating Jan. 6 Capitol attack will hold first hearing later this month. ormer president Donald Trump’s claim that the First Amendment shields his conduct leading up to the Jan. 6 Capitol riot is legally “spurious” and should be rejected as a federal court considers lawsuits that allege he incited the violence, four prominent First Amendment lawyers and scholars argued Thursday.

Targeting a key defense raised by lawyers for Trump and co-defendants including Rudolph W. Giuliani and Rep. Mo Brooks (R-Ala.), the legal experts said that courts have long recognized that speech central to a crime — such as the political intimidation of voters, lawmakers and government officials — is barred and not protected by the Constitution.

In a 23-page proposed friend-of-the-court brief filed Thursday in a case brought by members of Congress and Capitol police, the legal scholars argued that courts must strike a balance between protecting freedom of political speech and preventing political intimidation.

“Granting constitutional protection to the statutorily proscribed acts of political intimidation in the guise of ‘speech’ would render the government incapable of carrying out its functions, including its core democratic function of protecting the ability of all eligible citizens to engage freely and without coercion in the democratic process, whether by voting or by supporting and advocating for candidates,” the scholars wrote.

The four signers were First Amendment lawyer Floyd Abrams, who has fought several precedent-making cases in court, Berkeley law school dean Erwin Chemerinsky, former Harvard Law School dean Martha Minow and noted constitutional scholar Laurence Tribe.

“The movants believe that it is important not only to reject plaintiffs’ spurious and thinly developed First Amendment defenses, but to do so on grounds that preserve the effectiveness of political-intimidation statutes generally,” they added.

Trump attorney Jesse Binnall has asked U.S. District Judge Amit P. Mehta of Washington to toss out cases filed by Reps. Bennie G. Thompson (D-Miss.), Eric Swalwell (D-Calif.) and injured U.S. Capitol Police officers seeking damages, citing the president’s “absolute immunity” from the civil suit on separation-of-powers and free speech grounds.
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Binnall wrote that Trump’s claims of election fraud and theft were rooted in opposing Congress’s vote on Jan. 6 to confirm the results of the 2020 election.

The plaintiffs assert that Trump’s baseless and incendiary statements were part of a conspiracy with co-defendants such as extremist members of groups such as the Oath Keepers and Proud Boys. They are accused of egging on the riot along with other speakers — including Brooks, Giuliani and Donald Trump Jr. — at a fiery rally that morning at the White House Ellipse.

At the rally, the then-president urged attendees to “fight like hell” and march to the Capitol, “whipping them into a frenzy and turning them into a violent mob that participated in the attack,” Swalwell claimed.

The Capitol breach forced the evacuation of lawmakers, contributed to five deaths and led to assaults on nearly 140 police officers, authorities say.

Swalwell, a former House impeachment manager, argued the Trump speakers “all conspired with … each other, and others to subvert the will of the people in the 2020 election.” Swalwell’s suit said the defendants violated the Reconstruction-era Ku Klux Klan Act, which was passed to prohibit violent interference in Congress’s constitutional duties such as the Klan’s reign of terror to disenfranchise Black citizens and White supporters after the Civil War.

Now part of a civil rights statute known as “Section 1985,” the law authorizes lawsuits against people who conspire to interfere with government, obstruct justice or deprive others of equal protection under the law, such as by threatening voters, candidates, or the courts.

Rep. Eric Swalwell sues Trump over Jan. 6 riot, alleging he poses risk of ‘inciting future political violence’

The First Amendment scholars noted in their brief that courts historically have defended inflammatory political speech absent evidence that it incited imminent lawless action, or that a speaker seriously intended a “true threat” of violence — lines they argue Trump’s statements almost certainly crossed.

However, relying on such grounds could result in weakening First Amendment protections, while simultaneously “devastating” enforcement if courts interpret political intimidation laws as requiring proof of perpetrators’ intent, they wrote. Rather than apply those First Amendment tests with potentially harmful and unintended consequences to democracy, it would be better to shore up political-intimidation laws, they said, since many modern forms of intimidation do not involve threats of imminent violence but coercion of voters and elections officials.

“Although the January 6 insurrection may be the most spectacular example of incitement and ‘true threat’ in American history, modern political intimidation often takes subtler forms …,” the constitutional scholars wrote, such as “aggressive poll-watching, anonymous threats of harm, frivolous and excessive voter registration challenges, and coercion by employers,” as well as baseless threats of legal harm.

Carving out a “categorical” exception from the First Amendment for speech integral to political intimidation, they concluded, “also will preserve the efficacy of the political-intimidation statutes on which the health of our democracy depends.”

Before Trump’s impeachment acquittal in February, three of the four who wrote the amicus brief signed on to letters joined by more than 100 constitutional scholars earlier this year agreeing that the First Amendment did not prevent the Senate from convicting and disqualifying him from holding future office.

Read Rep. Swalwell’s opposition to Trump, Giuliani motions to dismiss here

In a separate filing, lawyers for Swalwell raised similar arguments, warning that Trump’s legal interpretation would weaken civil rights laws “beyond recognition,” adding that the former president was not “petitioning the government for redress,” but “unleash[ing] a violent mob at the Capitol to prevent Congress from carrying out its constitutional duties.”

Trump and others conspired “through a months-long campaign of lies and deceit that culminated in violence-laced calls to save a country they claimed was being stolen,” knowing the propensity of some listeners to engage in violence, that Trump approved of such violence and had pressured election officials and Vice President Mike Pence to overturn the results, attorneys wrote.

They concluded, “And when hordes of Trump’s supporters did just that, Donald Trump reportedly was happy with the result.”

July 2

supreme court resized 2021

ny times logoNew York Times, 2 Justices Say Landmark Libel Decision Should Be Revisited, Adam Liptak, right, July 2, 2021. Justice Neil M. Gorsuch added his voice to that of Justice Clarence Thomas in questioning adam liptakthe longstanding standard for public officials set in New York Times v. Sullivan.

Two justices on Friday called for the Supreme Court to reconsider New York Times v. Sullivan, the landmark 1964 ruling interpreting the First Amendment to make it hard for public officials to prevail in libel suits.

One of them, Justice Clarence Thomas, repeated views he had expressed in a 2019 opinion. The other, Justice Neil M. Gorsuch, offered fresh support for the view that the Sullivan decision and rulings extending it warranted a reassessment.

They made their comments in dissents from the court’s decision not to take up a libel case brought by the son of a former prime minister of Albania.

Both justices said the modern news media landscape played a role in their thinking about the actual malice doctrine announced in the Sullivan case. That doctrine required a public official suing for libel to prove that the offending statements were made with the knowledge they were false or with serious subjective doubt about their truth — a stricter standard than is applied to cases brought by ordinary people. The doctrine was expanded in later court rulings to cover public figures, not just public officials.

Justice Thomas denounced the explosion of conspiracy theories and other disinformation. He cited a news report on “the shooting at a pizza shop rumored to be ‘the home of a Satanic child sex abuse ring involving top Democrats such as Hillary Clinton’” and a New York Times article on “how online posts falsely labeling someone as ‘a thief, a fraudster and a pedophile’ can spark the need to set up a home-security system.”

“The proliferation of falsehoods is, and always has been, a serious matter,” Justice Thomas wrote. “Instead of continuing to insulate those who perpetrate lies from traditional remedies like libel suits, we should give them only the protection the First Amendment requires.”

Justice Gorsuch wrote that much had changed since 1964, suggesting that the actual malice doctrine might have made more sense when there were fewer and more reliable sources of news, dominated by outlets “employing legions of investigative reporters, editors and fact checkers.”

“Large numbers of newspapers and periodicals have failed,” he wrote. “Network news has lost most of its viewers. With their fall has come the rise of 24-hour cable news and online media platforms that ‘monetize anything that garners clicks.’

“What started in 1964 with a decision to tolerate the occasional falsehood to ensure robust reporting by a comparative handful of print and broadcast outlets,” he wrote, “has evolved into an ironclad subsidy for the publication of falsehoods by means and on a scale previously unimaginable.”

The two justices made their comments in dissenting from the court’s denial of review in Berisha v. Lawson, No. 20-1063, a libel case brought by Shkelzen Berisha, the son of Albania’s former prime minister. He sued the author and publisher of “Arms and the Dudes: How Three Stoners From Miami Beach Became the Most Unlikely Gunrunners in History,” a 2015 book that examined weapons procurement and was the basis of the movie “War Dogs.”

Mr. Berisha said the book, written by Guy Lawson and published by Simon & Schuster, falsely linked him to an illicit arms deal.

The U.S. Court of Appeals for the 11th Circuit, in Atlanta, relying on decisions extending the Sullivan case from public officials to public figures, ruled that Mr. Berisha was a public figure.

 washington post logoWashington Post, Opinion: Don’t be fooled: This is not a moderate Supreme Court, Leah Litman and Melissa Murray, July 2, 2021. Leah Litman is an assistant professor of law at the University of Michigan Law School. Melissa Murray is a professor of law at the New York University School of Law. They co-host the “Strict Scrutiny” podcast.

This Supreme Court term was significant mostly because of what the court did not do: The newly constituted 6-3 conservative supermajority did not use every case to openly and dramatically move the law rightward. Rather, in several important cases — including those involving the fate of the Affordable Care Act and the tension between religious liberty and gay rights — the court managed to resolve matters on seemingly narrow grounds and with broad majorities that transcended ideological differences.

But to call this term a model of judicial restraint — or even nonpartisanship — would be misleading. This is not a moderate or apolitical court. It is a reliably conservative court that, on occasion, chooses to act incrementally.Advertisement

Characterizing this term as moderate would also overlook the profound impact of the court’s final two decisions, a pair of 6-to-3 rulings — one that hobbled what remains of the Voting Rights Act and another that lays a foundation for a seismic shift in campaign finance rules.

In some cases where there was cross-ideological agreement, the court achieved that result by deciding very little. In its 8-to-1 ruling on the case of the cheerleader disciplined for vulgar speech, the court declined to impose a broad rule letting schools regulate students’ off-campus speech in all circumstances. But meaningfully, the court did not say off-campus speech was never subject to oversight by school authorities. As its reasoning suggests, cross-ideological agreement is possible, as long as you agree to not say very much.

Technical legal doctrines also gave the court a way to appear less ideological. In the Affordable Care Act case, the court, voting 7 to 2, turned aside a third challenge to the law on the narrow grounds that the states and private parties challenging the law didn’t have standing to sue because they couldn’t show they were injured by the unenforceable requirement to obtain insurance.

July 1 

ny times logoNew York Times, Supreme Court Upholds Arizona Voting Restrictions, Adam Liptak, July 1, 2021. The court’s 6-3 ruling, a test of what remains of the Voting Rights Act, signals that challenges to state laws making it harder to vote may not be successful.

The Supreme Court on Thursday upheld voting restrictions in Arizona and signaled that challenges to new state laws making it harder to vote would face a hostile reception from a majority of the justices.

The vote was 6 to 3, with the court’s three liberal members in dissent.

The decision was the court’s first consideration of how a crucial part of the Voting Rights Act of 1965 applies to voting restrictions that have a disproportionate impact on members of minority groups, and it was issued as disputes over voting rights have taken center stage in American politics.

As Republican-controlled state legislatures increasingly seek to impose restrictive new voting rules, Democrats and civil rights groups have turned to the courts to argue that Republicans are trying to suppress the vote, thwart the will of the majority and deny equal access to voters of color. The Arizona decision suggested that the Supreme Court would not be inclined to overturn many of the state measures.

Justice Samuel A. Alito Jr., writing for the majority, said courts should strike down voting restrictions only when they impose substantial burdens on minority voters that effectively block their ability to vote.

“Where a state provides multiple ways to vote,” he wrote, “any burden imposed on voters who choose one of the available options cannot be evaluated without also taking into account the other available means.”

washington post logoWashington Post, The Roberts court systematically dismantles the Voting Rights Act, Editorial Board, July 1, 2021. At times, Chief Justice John G. Roberts Jr., below right, has labored to maintain the Supreme Court’s legitimacy against the gale-force pressures of partisan acrimony and social division. When it comes to voting rights, he has pushed in the opposite direction, presiding over the court’s systematic dismantling of the Voting Rights Act, overriding Congress’s clear intentions and gravely injuring U.S. democracy.

The first major blow came in 2013, when the court eviscerated the act’s Section 5, which required states with a history of racial discrimination to preclear changes to voting rules with the Justice Department. The decision left in place a backstop, Section 2, which allows legal challenges to discriminatory election rules after they have been enacted. On Thursday, the Roberts court sharply limited that provision as well.

john roberts oThe court upheld two Arizona election rules the Democratic National Committee claimed discourage minority voting. The legitimacy of Arizona’s policies could be debated, and the court could have struck them down without indulging in dangerous overreach. But in its reasoning and guidance for future cases, the six justices in the majority, including the chief, flashed a green light to state lawmakers eager to erect new barriers to voting.

The majority imposed stipulations on applying Section 2 that “all cut in one direction — toward limiting liability for race-based voting inequalities,” Justice Elena Kagan pointed out in a dissent. This new list of restrictions, Justice Kagan continued, “stacks the deck against minority citizens’ voting rights. Never mind that Congress drafted a statute to protect those rights.”

The majority invites states to argue that unnecessarily strict voting rules impose no more than mild burdens on casting ballots, despite the fact that the Voting Rights Act was meant to eliminate obvious as well as subtle forms of voting discrimination. What may appear to be mere inconveniences or seemingly race-neutral rules can in practice reduce minority voting. Some of that is fine, the court said. While admitting that one of the Arizona laws in question disproportionately affects Black, Latino and Native American voters, the majority declared that the difference was too small to matter. Yet elections are often decided by fractions of percentage points, and every vote should be seen as precious.

The court also encouraged states to argue that worries about fraud and voting integrity justify new burdens on the right to vote — though there is little or no evidence that the fraud state leaders claim they are fighting actually occurs. From the nation’s Jim Crow past to its voter-suppression present, states have claimed that they merely want to ensure ballot integrity as they impose voting restrictions that disproportionately burden minority voters. The Supreme Court lent legitimacy to their search for pretext.

  • Washington Post, Opinion: Democrats will have to find new ways to defend voting rights. Here’s one, Greg Sargent

ny times logoNew York Times, Democrats Brace for a Narrower Path to Challenge New Voting Laws, Nick Corasaniti and Reid J. Epstein, July 1, 2021. Conservative groups challenged the state’s disclosure requirements, saying they could lead to harassment.

Voting rights activists, on the defensive this year in the face of a wave of restrictive new voting laws, grappled on Thursday with new guidance from the Supreme Court signaling that the challenge will be even steeper now for opposing these laws in court.

The 6-to-3 ruling established a series of “guideposts” for what could potentially constitute a violation under Section 2 of the Voting Rights Act, appearing to limit one of the few paths Democrats and activists have for mounting legal challenges to new measures currently being proposed and passed in Republican-controlled states.

“This decision overly constricts how we view evidence in our Section 2 cases, and that’s going to make it harder — not unwinnable — but harder,” said Allison Riggs, a senior lawyer at the Southern Coalition for Social Justice, a nonprofit dedicated to protecting the rights of people of color.

There are other legal avenues to challenge restrictive voting laws besides the Voting Rights Act, including under the First, 14th and 15th Amendments to the Constitution. But the act has been paramount in helping to rein in laws that could disproportionately affect communities of color, and the decision could threaten some of the legal strategies that voting rights groups and election lawyers have been drafting to challenge some of the new laws.

But voting rights experts noted that the court’s decision on Thursday did not invalidate or significantly hollow out Section 2 of the Voting Rights Act. “I do think the test will work to stop a lot of discriminatory electoral practices,” said Chad Dunn, the co-founder of the Voting Rights Project at the University of California, Los Angeles, and a longtime voting rights lawyer. “And that part is good news.”

President Biden said he was “deeply disappointed” in the court’s ruling and urged Congress to “restore the Voting Rights Act to its intended strength.”

At least three major cases involving Section 2 claims are in the federal court system, according to a database of election litigation maintained by Ohio State University. One of the cases is a lawsuit that the Justice Department filed last week against Georgia, arguing that the state’s new omnibus voting law, S.B. 202, is racially discriminatory in both its intent and its impact.

ny times logoNew York Times, Supreme Court Backs Donor Privacy for California Charities, Adam Liptak, July 1, 2021. Nick Corasaniti and Reid J. Epstein, July 1, 2021. The Supreme Court ruled on Thursday that California may not require charities soliciting contributions in the state to report the identities of their major donors.

The vote was 6 to 3, with the court’s three liberal members in dissent. Chief Justice John G. Roberts Jr., writing for the majority, rejected the state’s requirement, saying it violated the First Amendment’s protection of the freedom of association.

“California casts a dragnet for sensitive donor information from tens of thousands of charities each year,” he wrote, “even though that information will become relevant in only a small number of cases.”

The decision concerned charitable donations but its logic was sweeping, Justice Sonia Sotomayor wrote in dissent, suggesting that it could erode disclosure laws concerning political campaigns, too.

“Today’s analysis marks reporting and disclosure requirements with a bull’s-eye,” she wrote. “Regulated entities who wish to avoid their obligations can do so by vaguely waving toward First Amendment ‘privacy concerns.’”

California’s disclosure requirement was challenged by Americans for Prosperity Foundation, a group affiliated with the Koch family, and the Thomas More Law Center, a conservative Christian public-interest law firm. They said it chilled the groups’ ability to raise money and subjected donors to possible harassment.

The disputed measure required charities to file with the state a copy of their Internal Revenue Service Form 990, including its Schedule B, which identifies major donors.

A federal trial judge in California blocked the requirement, rejecting the state’s argument that it used the forms to investigate charitable misconduct. The judge found that investigations or audits based on the forms were rare and that the information in question could be obtained in other ways, notably by using subpoenas.

The judge also found that California had promised to keep the forms secret but had not always done so. According to court papers, the challengers discovered in 2015 that the state had displayed about 1,800 forms on its website. State officials said that the disclosures were inadvertent and promptly corrected and that the state had imposed new security measures.

The United States Court of Appeals for the Ninth Circuit, in San Francisco, reversed the trial judge’s ruling, saying that the filing requirement promoted investigative efficiency and that the security breaches had been addressed.

Chief Justice Roberts wrote that the court has long protected the right of free association guaranteed by the First Amendment, notably in a 1958 decision shielding the membership list N.A.A.C.P.’s Alabama office from state officials there.

 

June

June 30

Roll Call, Lawmakers weigh in on proposals to change the Supreme Court, Todd Ruger, June 30, 2021 (print ed.). White House commission on Supreme Court to hold first meeting Wednesday. Several members of Congress wanted to make sure the White House commission on the Supreme Court heard their views ahead of the first public hearing Wednesday on the debate over expanding the court beyond its current nine members and other potential overhauls.

Texas Republican Sen. Ted Cruz and Republican Rep. Dusty Johnson of South Dakota submitted a comment to the commission that Congress has exclusive authority to change the Supreme Court’s structure.

The letter also seeks “to remind you of the growing congressional momentum” for their bills for a constitutional amendment to keep the court at nine justices, with 18 senators and 173 representatives as cosponsors.

“Despite the President’s inability to alter the Supreme Court, President Biden established your commission to pacify the far left,” Cruz and Johnson wrote.

Those proposed amendments respond to calls from some liberal advocacy groups and members of Congress to expand the court.

Massachusetts Democratic Sen. Edward J. Markey and three Democratic members of the House — Judiciary Chairman Jerrold Nadler and Rep. Mondaire Jones, both of New York, and Georgia Rep. Hank Johnson — have introduced a bill to increase the number of justices from nine to 13.

Speaker Nancy Pelosi has cast serious doubts on the chances of the bill, pointing instead to the work of the commission that will examine high-profile ideas such as whether justices should have term limits instead of life tenure on the Supreme Court.

Senate Majority Leader Charles E. Schumer of New York sent the commission the series of reports the Democratic Policy and Communications Committee published in May 2020 titled, “Captured Courts: The GOP’s Big Money Assault on The Constitution, Our Independent Judiciary, and the Rule of Law.”

A bill Rhode Island Democratic Sen. Sheldon Whitehouse championed and Republicans opposed — which has a provision to require advocacy groups to disclose donors if they run ads around judicial nomination fights — is in Democrats’ elections, campaign finance and ethics overhaul bill that stalled in the Senate during a procedural vote this month.

“Among many other serious problems, this big-money assault on our courts has resulted in voters waiting for hours in long lines to exercise their right to vote; special interests flooding our airwaves with political ads; worker discrimination cases being thrown out of court; communities being left powerless to regulate gun violence; polluters enabled to pollute our air and water without consequence; and access to health care under constant attack,” Schumer wrote.

“I believe that the problems identified in these reports should inform the work of the Commission, and I ask that you share the reports with all of your fellow commissioners,” Schumer wrote.

Whitehouse, in a letter to the commission with fellow Democratic Sens. Mazie K. Hirono of Hawaii and Richard Blumenthal of Connecticut, as well as Hank Johnson, suggested a dozen areas the commission should study that includes the issue of dark money influence on the Supreme Court.

“This set of interwoven problems connected by secret funding is likely the primary driving force behind the degradation of confidence that necessitated this Commission’s formation,” the Democratic members wrote.

That includes the role of dark money nonprofit groups that have held sway over the judicial confirmations process, whether Congress should have a role in cleaning up Supreme Court decisions that rely on factual errors, disclosure requirements for outside groups that file briefs in a Supreme Court case, and the disclosure requirements for justices.

Earlier this month, Whitehouse and Louisiana Republican Sen. John Kennedy asked the Justice Department for travel records of the justices as part of a broader congressional look at financial disclosure standards for the receipt of gifts, travel and other financial gains by senior government officials.

The commission's public meeting, conducted virtually online, will last all day. The commission will hear four panels with five people on each, tackling topics of Supreme Court reform, the court’s role in the constitutional system, how the court selects cases and transparency at the court.

One witness, Amy Howe of SCOTUSblog, will testify that the justices should continue with live audio of oral arguments when they return to in-person arguments in the courtroom.

The Supreme Court held arguments over the telephone since the onset of the pandemic, which were broadcast online and television by C-SPAN and other outlets. But it is unclear if the Supreme Court will continue to allow livestreams of oral arguments when the next term starts in October.

Last week, the Senate Judiciary Committee advanced a bipartisan bill would require the Supreme Court to permit television coverage of all open sessions in almost all cases. Supreme Court justices have long resisted calls for more audio and video access to its work.

The commission also intends to hold panels at its July meeting, tentatively planned for July 20.

washington post logoWashington Post, Analysis: Stephen Breyer, and why Thursday is a huge day for the future of the Supreme Court, Aaron Blake, June 30, 2021.  Relatively few people are talking about it right now, but Thursday (and perhaps the days to come) could be one of the most pivotal moments in recent Supreme Court history.

Yes, that pertains to the key decisions that are set to be handed down on Thursday, the final day of the court’s current term. The long-awaited cases include key rulings on the Arizona GOP’s election laws and the role of so-called “dark money” in politics.

Stephen BreyerBut history suggests it’s also quite possibly the time when we get some clarity about the future makeup of the court — and particularly the all-important question about whether Justice Stephen G. Breyer, right, will retire.

Conservatives built a historic majority on the court during the Trump presidency thanks to the timing of a retirement (Anthony M. Kennedy) and a non-retirement (Ruth Bader Ginsburg) along with some bare-knuckle political gamesmanship (Antonin Scalia). Ginsburg’s refusal to heed calls to retire when Democrats controlled her replacement process, in particular, has led to a more forceful “Breyer retire” movement.

June 29

 washington post logoWashington Post, NCAA leaders recommend allowing athletes to profit off their personal brands, Chuck Culpepper, June 29, 2021 (print ed.). The NCAA Division I Board of Directors is expected to adopt the policy Wednesday. The NCAA’s Division I Council recommended Monday that the organization cease its long-held amateurism rules regarding name, image and likeness rights, a seismic shift in long-ncaa logostanding policies that prohibited college athletes from benefiting financially from their talents and fame.

The 24-member NCAA Division I Board of Directors will review that historic recommendation Wednesday, the eve of the July 1 date that athletes rights advocates have been pointing toward with anticipation for months.

On that day, eight of the 21 states that have passed laws enabling athletes the NIL option will see those laws go into effect. The eight are Alabama, Florida, Georgia, Kentucky (by executive order from Gov. Andy Beshear), Mississippi, New Mexico, Ohio and Texas. A ninth state, Arizona, has a law passed and going into effect on July 23.

Twelve more states have laws going into effect in 2022, 2023 and 2025, but some might move to bring those laws closer to the present.

washington post logoWashington Post, Court dismisses FTC antitrust complaint against Facebook, says agency can refile, Cat Zakrzewski and Rachel Lerman, June 29, 2021 (print ed.). A district court in D.C. said the Federal Trade Commission failed to offer enough facts to prove Facebook has monopoly power, immediately sparking calls for a rewrite of antitrust law.

ftc logoThe court also dismissed a similar lawsuit brought by a group of state attorneys general against the company that challenged the company’s acquisitions of photo-sharing service Instagram and messaging app WhatsApp. The court ruled that the states waited too long to challenge Facebook’s acquisition of the companies in 2012 and 2014, respectively.

It was a major victory for Facebook, which has long argued that it was just one option in a burgeoning universe of social media companies, citing the rise of such services as TikTok, facebook logowhich claims 50 million daily users in the United States.

In its complaint, the FTC alleged that Facebook controls more than 60 percent of the social media market. The commission argued that “no other social network of comparable scale exists in the United States,” citing a redacted figure of the daily and monthly users on the company’s flagship service. The FTC alleged that Facebook has had monopoly power since at least 2011, but it defined the market it said Facebook monopolizes very narrowly, excluding professional social networks like LinkedIn and video streaming players such as YouTube.

washington post logoWashington Post, Supreme Court will not hear Va. dispute on transgender bathroom rights, a win for student, Robert Barnes, June 29, 2021 (print ed.).  The Supreme Court declined to hear a legal battle over the rights of transgender students, handing a victory to Gavin Grimm over the Virginia school board that denied him access to the boys’ restroom.

The Supreme Court on Monday declined to hear a legal battle over the rights of transgender students, handing a victory to Gavin Grimm over the Virginia school board that denied him the right to use the boys’ restroom.

As is its custom, the court did not say why it was rejecting the appeal of the Gloucester County school district. Justices Clarence Thomas and Samuel A. Alito Jr. said they would have accepted the case.

The court’s decision not to take up the case does not establish a national precedent, nor does it necessarily signal agreement with the lower court that sided with Grimm.

But gay- and transgender-rights activists cheered the high court’s decision to stay out of the long-running dispute. It let stand a decision by the U.S. Court of Appeals for the 4th Circuit that was a resounding victory for Grimm, who has become a well-known figure in the transgender-rights movement.

 

June 24 

 britney spears james spears resized ap

ny times logoNew York Times, Is the Forced Contraception Alleged by Britney Spears Legal? Jan Hoffman, June 24, 2021. The United States has a dark history of court-sanctioned sterilization, but more recent rulings and legislation suggest it would violate a basic right.

Among the stunning assertions that the pop star Britney Spears, above right, made to a Los Angeles probate judge this week, as she sought to end her protracted conservatorship, was one that shook experts in guardianship law and reproductive rights deeply. She said a team led by her father, James, above left, who is her conservator, prevented her from having her IUD removed because the team did not want her to have more children.

“Forcing someone to be on birth control against their will is a violation of basic human rights and bodily autonomy, just as forcing someone to become or stay pregnant against their will would be,” said Ruth Dawson, a principal policy associate at the Guttmacher Institute, a research group that supports reproductive rights.

Court-condoned compelled contraception is rare in conservatorship. But the specter it raises — forced sterilization — does have a grim, extensive history in the United States, especially against poor women, women of color and inmates. In the early 20th century, the state-sanctioned practice was upheld by the United States Supreme Court.

Although the court moved away from that position in the 1940s, and consensus arose through the growing canon on informed consent that forced sterilization was inhumane, the practice continued to be quietly tolerated.

Finally, by the end of the 1970s, most states had repealed laws authorizing sterilization, although allegations of forced hysterectomies and tubal ligations on women in immigrant detention centers continue to be raised. It wasn’t until 2014 that California formally banned the sterilization of female inmates without consent.

The scant law on the question in conservatorship indicates what an outlier the Spears case may be. In 1985, the California Supreme Court denied the petition of guardian parents of a 29-year-old woman with Down syndrome who wanted her to undergo a tubal ligation.

Typically, a conservator has temporary control over the finances and even medical care of an incapacitated person. Experts underscored that Ms. Spears’s assertion is unverified. But if it’s accurate, they said, the most likely rationale, however suspect, might be that Jamie Spears, her father, wants to protect her finances from a baby’s father, potentially her boyfriend, who is reportedly at odds with Mr. Spears.

June 17

supreme court resized 2021

ny times logoNew York Times, Affordable Care Act Survives Latest Supreme Court Challenge, Adam Liptak, June 17, 2021. A seven-justice majority ruled that the plaintiffs did not have the standing to sue, but the court did not address the larger issue in the case. The 2010 law, also known as Obamacare, has been the subject of relentless criticism from Republicans and two other major Supreme Court cases.

The Affordable Care Act on Thursday survived a third major challenge in the Supreme Court.

A seven-justice majority ruled that the plaintiffs had not suffered the sort of direct injury that gave them standing to sue.

The court did not reach the larger issues in the case: whether the bulk of the sprawling 2010 health care law, President Barack Obama’s defining domestic legacy, could stand without a provision that initially required most Americans to obtain insurance or pay a penaltydjt hands up mouth open CustomIn the years since the enactment of the law in 2010, Republicans have worked hard to destroy it, and President Donald J. Trump relentlessly criticized it. But attempts to repeal it failed, as did two earlier Supreme Court challenges, in 2012 and 2015. With the passing years, the law gained in popularity and was woven into the fabric of the health care system. Its future now seems secure.

Striking down the Affordable Care Act would have expanded the ranks of the uninsured in the United States by about 21 million people — a nearly 70 percent increase — according to recent estimates from the Urban Institute.

The biggest loss of coverage would have been among low-income adults who became eligible for Medicaid under the law after most states expanded the program to include them. But millions of Americans would also have lost private insurance, including young adults whom the law allowed to stay on their parents’ plans until they turned 26 and families whose income was modest enough to qualify for subsidies that help pay their monthly premiums.

A ruling against the law would also have doomed its protections for Americans with past or current health problems — or pre-existing conditions. The protections bar insurers from denying them coverage or charging them more for it.

The case, California v. Texas, No. 19-840, was brought by Republican officials who said the mandate requiring health insurance coverage became unconstitutional after Congress in 2017 eliminated the penalty for failing to obtain coverage because the mandate could no longer be justified as a tax.

The argument was based on the court’s 2012 ruling, in which Chief Justice John G. Roberts Jr., joined by what was at the time the court’s four-member liberal wing, said the mandate was authorized by Congress’s power to assess taxes.

The new challenge was largely successful in the lower courts. A federal judge in Texas ruled that the entire law was invalid, but he postponed the effects of his ruling until the case could be appealed. In 2019, the United States Court of Appeals for the Fifth Circuit, in New Orleans, agreed that the mandate was unconstitutional but declined to rule on the fate of the remainder of the health law, asking the lower court to reconsider the question in more detail.

washington post logoWashington Post, Justices unanimously rule for Catholic group in Philadelphia foster-care dispute, Robert Barnes, June 17, 2021. The Supreme Court said Thursday that Philadelphia was wrong to end a contract to provide foster care services to a religious organization that refuses to work with same-sex couples.

All nine justices agreed with the outcome, but Chief Justice John G. Roberts Jr. wrote for a majority of six in saying Philadelphia violated the Constitution’s guarantee of free exercise of religion in ending a contract with Catholic Social Services to screen potential foster care parents.

“CSS seeks only an accommodation that will allow it to continue serving the children of Philadelphia in a manner consistent with its religious beliefs; it does not seek to impose those beliefs on anyone else,” Roberts wrote. “The refusal of Philadelphia to contract with CSS for the provision of foster care services unless it agrees to certify same-sex couples as foster parents cannot survive strict scrutiny, and violates the First Amendment.”

It was joined by conservative Justices Brett M. Kavanaugh and Amy Coney Barrett, as well as the court’s liberals, Stephen G. Breyer, Sonia Sotomayor and Elena Kagan.

Philadelphia city officials stopped the contract with Catholic Social Services after a 2018 article in the Philadelphia Inquirer described its policy against placing children with same-sex couples. They said the agency’s actions violated the city’s anti-discrimination laws.

The agency and several foster parents sued the city, saying the decision violated their First Amendment rights to religious freedom and free speech.

A unanimous panel of the U.S. Court of Appeals for the 3rd Circuit ruled that the city was within its rights to end the contract and was not targeting the Catholic agency for its religious views. Instead, the court said, the city was insisting that those with whom it does business agree with its nondiscrimination policy.

ny times logoNew York Times, Supreme Court Limits Human Rights Suits Against Corporations, Adam Liptak, June 17, 2021. Six citizens of Mali had sued Nestlé USA and Cargill, accusing the companies of profiting from child slavery on Ivory Coast cocoa farms.

The Supreme Court ruled on Thursday in favor of two American corporations accused of complicity in child slavery on Ivory Coast cocoa farms. The decision was the latest in a series of rulings imposing strict limits on lawsuits brought in federal court based on human rights abuses abroad.

The case was brought by six citizens of Mali who said they were trafficked into slavery as children. They sued Nestlé USA and Cargill, saying the firms had aided and profited from the practice of forced child labor.

Justice Clarence Thomas, writing for the majority, said the companies’ activities in the United States were not sufficiently tied to the asserted abuses.

The plaintiffs had sued under the Alien Tort Statute, a cryptic 1789 law that allows federal district courts to hear “any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.”

The law was largely ignored until the 1980s, when federal courts started to apply it in international human rights cases. A 2004 Supreme Court decision, Sosa v. Álvarez-Machain, left the door open to some claims under the law, as long as they involved violations of international norms with “definite content and acceptance among civilized nations.”

Since then, the Supreme Court has narrowed the law in two ways, saying it does not apply where the conduct at issue was almost entirely abroad or where the defendant was a foreign corporation.

In 2013, in Kiobel v. Royal Dutch Petroleum, the court said there was a general presumption against the extraterritorial application of American law. It rejected a suit against a foreign corporation accused of aiding and abetting atrocities by Nigerian military and police forces against Ogoni villagers.

Chief Justice John G. Roberts Jr., writing for the majority, said that even minimal contact with the United States would not be sufficient to overcome the presumption.

“Even where the claims touch and concern the territory of the United States,” he wrote, “they must do so with sufficient force to displace the presumption against extraterritorial application.”

June 14

NBC News, Former NSA contractor Reality Winner, jailed for leaking secrets about Russian hacking, released early from prison, Ben Kesslen, June 14, 2021.Winner, 29, was sentenced to five years and NBC News logohree months in prison in 2018 after leaking classified information to The Intercept news outlet.

Reality Winner, the former National Security Agency contractor who was jailed for leaking secrets about Russian hacking, has been released early from prison, her lawyer said Monday.

"I am thrilled to announce that Reality Winner has been released from prison," Alison Grinter Allen, her lawyer, said in a statement posted on Twitter.

reality winner mug CustomWinner, 29, was sentenced to more than five years in prison in 2018 after she leaked classified information to The Intercept news outlet about Russia's attempts to hack the 2016 presidential election. She pleaded guilty to leaking a classified report that detailed the Russian government's efforts to penetrate a Florida-based voting software supplier. At the time, the sentence was the longest ever for a federal crime involving leaks to the media.

Her lawyers filed a formal petition for commutation with the Department of Justice in February 2020, saying she had "suffered enough" and called on then-President Donald Trump to "do the right thing."

The former NSA translator was released for good behavior and is still in custody amid the “residential re-entry process,” Allen said.

“We are relieved and hopeful,” she wrote. “Her release is not a product of the pardon or compassionate release process, but rather time earned from exemplary behavior while incarcerated.”

While Trump did not commute Winner’s sentence, he did say on Twitter in 2018 her punishment was “so unfair...."Gee, this is 'small potatoes' compared to what Hillary Clinton did," he had tweeted.

Palmer Report, Opinion: Top DOJ official abruptly resigns over his role in the Trump DOJ spying scandal, James Sullivan, June 14, 2021. Although the doom and gloom forecasters of Resistance Twitter have gone into a fever pitch over the last week, interpreting even the slightest movement made by the Justice Department as proof of the worst case scenario, things are already in full motion under a new DOJ that is taking on a massive agenda.

bill palmer report logo headerAfter the bombshell that broke last week about Donald Trump’s DOJ being weaponized to spy on his political opponents, Attorney General Merrick Garland stepped up to the plate immediately to begin an investigation of those involved.

Just days later, we’re already seeing results – with Trump appointee John Demers tendering his resignation on Monday morning. There are reports that he was contemplating resignation by the end of the month, but you’d have to consider why Demers decided to leave when he did – seeming that he was one of the few Trumpers left at the DOJ and knew that the story of Justice Department log circularTrump’s people spying on congressional Democrats by subpoenaing companies like Apple and Microsoft in secret was inevitably going to break.

Other developments in the case aren’t likely to happen as fast – but the more problematic people under Garland’s watch are already trying to distance themselves, meaning we’ll probably get a bit more of the story very soon. In a legitimate investigation, things tend to move much slower than most of us want them to – but it’s a sign that things are being done carefully with little room for error.

For Garland to de-politicize a Justice Department that should have never been politicized in the first place, he can’t simply go around locking up Trump and his associates, as much as resistors have been dreaming about it for years. If it were that easy, things right now would be considerably worse – with a good chance that Donald Trump and Bill Barr would still be running the show, and effectively prosecuting their most vehement critics. Today’s news is an important sign that things are going in the right direction, however long they may take.

Press Run, Commentary: It’s worse than Watergate, Eric Boehlert, June 14, 2021. Stunning new abuse-of-power revelations remind us of the Trump administration’s complete disregard for democratic principles. We now know that over a span of years it took extraordinary legal measures, including gag orders and secret tribunals, in pursuit of email records from reporters at CNN and the Washington Post. Team Trump also unleashed the courts on Democratic members of Congress and their families trying to obtain private phone records, as well as secretly targeting a key White House attorney, who possibly fell under suspicion for not being sufficiently loyal to Trump.

djt march 2020 CustomThe disturbing portrait now in focus is one of a Republican White House that for four years worked in tandem with partisan prosecutors to systematically politicize the vast powers of the Justice Department, which often treated Trump’s allies leniently, and used unprecedented tools to target his foes. It was Trump recklessly using the executive branch to gather private information on members of the legislative branch, as well as members of the media.

The emerging scandal already eclipses Richard Nixon’s Watergate in terms of the benchmarks we use to gauge Washington, D.C. abuse of power. It’s “Nixon on stilts and steroids,” Nixon’s former White House Counsel John Dean recently told CNN. "Nixon didn't have that kind of Department of Justice.”

It’s worse than Watergate because the White House abuse of power was purposely powered by the Justice Department. This would have been if U.S. Attorney General John Mitchell had helped plot the Watergate break-in, instead of a band of rogue Nixon sycophants. This is worse because it’s institutional abuse conducted by political entities with boundless authority, such as the White House and the DOJ.

washington post logoWashington Post, Biden nominated as many minority women to be judges in four months as Trump had confirmed in four years, Adrian Blanco, June 14, 2021. Sixty-five percent of federal judges confirmed under Donald Trump were non-Hispanic White men. President Biden has launched an early effort to reverse that trend, nominating 11 women who would add diversity to the federal bench. President Biden and the Democrat-led Senate have moved quickly to boost minority and female representation on the federal courts following Donald Trump’s four-year push to remake the judiciary, in which he nominated a large share of White, male justices.

Biden’s early judicial slate represents a departure from his recent predecessors; his initial picks are more diverse, and Biden rolled out more nominations earlier in his presidency than others.

Fifteen of his 19 nominees so far are women, including 11 women from diverse racial and ethnic backgrounds. The Senate confirmed U.S. District Judge Ketanji Brown Jackson — widely considered a Supreme Court contender — to the influential U.S. Court of Appeals for the D.C. Circuit on Monday. Additionally, it gave final approval to Zahid Quraishi, a magistrate judge from New Jersey and the first Muslim confirmed as a federal judge, in a bipartisan vote on Thursday.

[Biden’s court pick Ketanji Brown Jackson has navigated a path few Black women have]
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“This trailblazing slate of nominees draws from the very best and brightest minds of the American legal profession,” Biden said in a statement when announcing the nominees. “Each is deeply qualified and prepared to deliver justice faithfully under our Constitution and impartially to the American people — and together they represent the broad diversity of background, experience, and perspective that makes our nation strong.”

In his first four months, Biden nominated as many minority women to the federal bench as Trump had confirmed in his entire four years. A Washington Post analysis of Federal Judicial Center data shows all women, regardless of race or ethnicity, are underrepresented on the judiciary.
Share of active federal judges by race and ethnicity

Forty-eight women from diverse racial or ethnic backgrounds became federal judges during Barack Obama’s two terms, compared with 21 each in George W. Bush’s and Bill Clinton’s presidencies. His progress stalled when Republicans took back the Senate in 2014 and blocked dozens of judicial nominees, including two who were nominated by Biden and confirmed last week. Following Republican Senate obstruction, Trump came into office with more than 100 vacancies to fill.

June 11

katie logan 2001 currently tim gruber wash post

washington post logoWashington Post, Investigation: People of Praise, a Christian group tied to Justice Amy Coney Barrett, faces reckoning over sexual misconduct allegations, Beth Reinhard and Alice Crites, June 11, 2021. Barrett’s ascendancy to the Supreme Court spurred former members of the group to speak out and forced People of Praise to hire lawyers to investigate.

In December, Katie Logan called the police in this Minneapolis suburb to unearth a buried secret: Her high school physics teacher had sexually assaulted her two decades earlier, she said. She was 17 and had just graduated from a school run by a small Christian group called People of Praise. He was 35 at the time, a widely admired teacher and girls’ basketball coach who lived in a People of Praise home for celibate men.

Logan (shown above in 2001 photo at left and in a recent Washington Post photo by Tim Gruber) told police she reported the June 2001 incident to a dean at the school five years after it happened. Police records show the dean believed Logan and relayed the complaint to at least one other senior school official.

But the teacher, Dave Beskar, remained at Trinity School at River Ridge until 2011, when he was hired to lead a charter school in Arizona. In 2015, he returned to the Minneapolis area to become headmaster of another Christian school. Beskar denies that any inappropriate sexual activity took place.

“People of Praise leaders failed me,” Logan, 37, said in an interview with The Washington Post. “I think they wanted to protect themselves more than they wanted to protect me and other girls.”

amy coney barrett headshot notre dame photoLogan was encouraged to go to police by a founder of “PoP Survivors,” a Facebook group formed last fall after the Supreme Court nomination of Amy Coney Barrett, left, who has deep roots in People of Praise and who served on the board of its schools years after Beskar left.

Barrett’s ascendancy to the nation’s highest court has forced a painful reckoning in People of Praise, an insular Christian community that emphasizes traditional gender roles. The former members are now demanding that the group acknowledge their suffering and that it mishandled complaints, prompting People of Praise to hire two law firms to investigate allegations of abuse.

The Post interviewed nine people in the Facebook group — all but one of them women — who said they were sexually abused as children, as well as another man who says he was physically abused. In four of those cases, the people said the alleged abuse was reported to community leaders. Logan gave The Post recorded statements and other documents from the police investigation of her complaint.

In response to questions from The Post, Craig Lent, chairman of the religious group’s board of governors, said that the lawyers’ findings will be reviewed by a People of Praise committee of men and women and that “appropriate action” will be taken.

Lent declined in a written statement to respond to specific questions about Logan’s allegation but acknowledged the “serious questions that it raises.” He declined to say how many claims are being investigated.

“People of Praise has always put the safety of children far above any reputational concerns,” said Lent, who is also chairman of the board overseeing three Trinity Schools campuses for middle and high school students — in the Minneapolis area, South Bend, Ind., and Falls Church, Va.

People of Praise grew out of the charismatic Christian movement of the early 1970s, which adopted practices described in the New Testament of the Bible, including speaking in tongues, the use of prophecy and faith healing. The group says it has 1,700 members across the United States, Canada and the Caribbean.

amy coney barrett ap oct 12 2020Barrett, who was raised in a People of Praise community in Louisiana, has long been active in the branch in the South Bend area, where she was a student at Notre Dame Law School. Barrett lived for a time with People of Praise co-founder Kevin Ranaghan and his wife, Dorothy, Dorothy Ranaghan has confirmed. A People of Praise 2010 directory shows Barrett served as a “handmaid,” a key female adviser to another female member. Barrett served on the Trinity Schools board, whose members must belong to People of Praise, from 2015 to 2017.

Barrett was not asked about People of Praise during her confirmation to the Supreme Court (shown at right). At her 2017 Senate confirmation hearing for a federal appeals court, she said she would not put her religious beliefs before the rule of law. “It’s never appropriate for a judge to impose that judge’s personal convictions, whether they derive from faith or anywhere else, on the law,” she said.   

From left, Sundar Pichai of Google, Mark Zuckerberg of Facebook and Jack Dorsey of Twitter at House Energy and Commerce Committee hearing on March 25, 2021 via YouTube.From left, Sundar Pichai of Google, Mark Zuckerberg of Facebook and Jack Dorsey of Twitter testified remotely in March to the U.S. Congress (Photos via House Energy and Commerce Committee).

ny times logoNew York Times, Lawmakers, Taking Aim at Big Tech, Push Sweeping Overhaul of Antitrust, Cecilia Kang, June 11, 2021. A bipartisan group of House members introduced five bills that take direct aim at Amazon, Apple, Facebook and Google.

House lawmakers on Friday introduced sweeping antitrust legislation aimed at restraining the power of Big Tech and staving off corporate consolidation across the economy, in what would be the most amazon logo smallambitious update to monopoly laws in decades.

The bills — five in total — take direct aim at Amazon, Apple, Facebook and Google and their grip on online commerce, information and entertainment. The proposals would make it easier to break up businesses that use their dominance in one area to get a stronghold in another, would create new hurdles for acquisitions of nascent rivals, and would empower regulators with more funds to police companies.

“Right now, unregulated tech monopolies have too much power over our economy. They are in a unique position to pick winners and losers, destroy small businesses, raise prices on consumers and put folks out of work,” said Representative David Cicilline, Democrat of Rhode Island and chairman of the antitrust subcommittee. “Our agenda will level the playing field and ensure apple logo rainbowthe wealthiest, most powerful tech monopolies play by the same rules as the rest of us.”

The introduction of the bills, which have some bipartisan support, represents the most aggressive challenge yet from Capitol Hill to Silicon Valley’s tech giants, which have thrived for years without regulation or much restraint on the expansion of their business. Amazon, Apple, Facebook and Google have a combined market capitalization of $6.3 trillion, four times more than the value of the country’s 10 largest banks.

June 10djt william barr doj photo march 2019

ny times logoNew York Times, Hunting Leaks, Trump Officials Focused on Democrats in Congress, Katie Benner, Nicholas Fandos, Michael S. Schmidt and Adam Goldman, June 10, 2021. The Justice Department seized records from Apple for metadata of House Intelligence Committee members, their aides and family members.

As the Justice Department investigated who was behind leaks of classified information early in the Trump administration, it took a highly unusual step: Prosecutors subpoenaed Apple for data from the accounts of at least two Democrats on the House Intelligence Committee, aides and family members. One was a minor.

All told, the records of at least a dozen people tied to the committee were seized in 2017 and early 2018, including those of Representative Adam B. Schiff of California, then the panel’s top Democrat and now its chairman, according to committee officials and two other people briefed on the inquiry. Representative Eric Swalwell of California said in an interview Thursday night that he had also been notified that his data had subpoenaed.

american flag upside down distressProsecutors, under the beleaguered attorney general, Jeff Sessions, were hunting for the sources behind news media reports about contacts between Trump associates and Russia. Ultimately, the data and other evidence did not tie the committee to the leaks, and investigators debated whether they had hit a dead end and some even discussed closing the inquiry.

But William P. Barr, shown above, revived languishing leak investigations after he became attorney general a year later. He moved a trusted prosecutor from New Jersey with little relevant experience to the main Justice Department to work on the Schiff-related case and about a half-dozen others, according to three people with knowledge of his work who did not want to be identified discussing federal investigations.

The zeal in the Trump administration’s efforts to hunt leakers led to the extraordinary step of subpoenaing communications metadata from members of Congress — a nearly unheard-of move outside of corruption investigations. While Justice Department leak investigations are routine, current and former congressional officials familiar with the inquiry said they could not recall an instance in which the records of lawmakers had been seized as part of one.

Moreover, just as it did in investigating news organizations, the Justice Department secured a gag order on Apple that expired this year, according to a person familiar with the inquiry, so lawmakers did not know they were being investigated until Apple informed them last month.

Prosecutors also eventually secured subpoenas for reporters’ records to try to identify their confidential sources, a move that department policy allows only after all other avenues of inquiry are exhausted.

Proof via Substack, Investigation: Trumpist Insurrectionists Have Now Created a Systematized Mechanism for "Cancelling" People and Groups—and It's the Most Comprehensive Cancel Culture America seth abramson graphicHas Ever Seen, Seth Abramson, left, June 10, 2021. The number of brands explicitly targeted for cancellation by Patriot.Win is staggering, representing a cultist/militant rejection of both the American free-market system and American democracy itself.

The most ardent adherents to a self-described billionaire’s “populist” movement claim to be animated by what they say is the worrying spread of “cancel culture” in America. If their complaint seems not just hypocritical but even delusionally self-contradictory, do remember that that’s the point: Trumpism is about attributing to one’s opponents whatever it is one is doing oneself that one cannot defend, whether it’s encouraging violent attacks on persons and property, undermining U.S. elections, or “cancelling” so many companies, websites, media outlets and persons through concerted digital action and even (see below) a systematized protocol for cancelling entities that there can no longer be any doubt that Patriot.Win is now the chief “canceller” in the United States.

The Patriot.Win Website: Patriot.Win is an insurrectionist outgrowth of the now-defunct pro-sedition website TheDonald.Win, which latter address now redirects to America.Win. Patriot.Win has two badges it uses to warn its users about companies, sites, media outlets and persons:

    • The Orange “Warning” Badge
    • The Red “Cancellation” Badge 

dan mcgahn djt

Palmer Report, Opinion: Don McGahn has finally publicly confessed to Donald Trump’s obstruction of justice crimes, Bill Palmer, right, June 10, 2021. It shouldn’t have taken this long. It’s been sabotaged by bill palmercorrupt bad actors at every turn for years. But once Donald Trump lost the election, it was always going to happen inevitably. And sure enough, former White House Counsel Don McGahn has finally publicly confessed to Trump’s obstruction of justice crimes.

McGahn (above right) testified about these crimes to the Mueller team long ago – but as we all remember – the most important parts of the Mueller report were illegally buried by Bill Barr and then the media inexplicably took Barr at his word. But now McGahn has testified about Trump’s obstruction crimes to Congress, and while it took place behind closed doors, McGahn knew the transcript would be released shortly after his testimony.

bill palmer report logo headerSure enough, that happened yesterday. The public transcript reveals that while Don McGahn wasn’t the most cooperative of witnesses, he did specifically state that Donald Trump ordered him to do things to interfere with the Mueller probe that he refused to do, because he viewed the orders as illegal. This is a confession on McGahn’s part that he witnessed Trump commit felony obstruction of justice.

Why does this matter? Here’s the thing. Donald Trump is already facing grand jury indictment in New York, and he’s on a glide path to state prison. But that will be for his financial crimes, many of which took place before he took office. The big question is whether Trump will also be federally criminally charged for the crimes he committed in his role as President.

McGahn’s confession to Trump’s guilt will make it a heck of a lot easier for the Feds to criminally charge Trump with obstruction of justice, if they want to. Also, the public release of this testimony should help ramp up public demand for Trump’s federal prosecution, which will help put pressure on the Feds to charge him even if they’d rather not.

Because McGahn’s testimony emerged as a transcript and not live on television (something that McGahn would never have agreed to and would have instead fought in court for another few years), the impact of his testimony won’t be immediate. But we’re already seeing the McGahn transcript filter its way into media coverage, which will help gradually educate the public about Trump’s obstruction crimes, which could finally get the ball rolling on obstruction charges.

Again, Donald Trump is already earmarked for prison for financial crimes in New York. And frankly, it’ll be infinitely easier to get a jury to convict Trump for straightforward financial crimes than it will be to get a jury to convict Trump for something as qualitative as obstruction of justice. But if you believe that the Feds must criminally charge Trump for his crimes in office, suffice it to say that those odds – while still unknown – certainly just went up

 

More On U.S. Assaults On Elections, Voting Rights  

ali akbar alexander stop steal mic

Proof via Substack, Investigation: A tranche of texts between Alexander and an insurrectionist Arizona politician reveals new bombshells, including the location of the insurrectionists' war room on January seth abramson graphic6—just 240 feet from Trump's, Seth Abramson, left, June 9-10, 2021. Two United States Senators Were in Direct Telephone Contact with Now-in-Hiding Domestic Terror Leader Ali Alexander (shown above in a file photo) on Insurrection Eve.

Introduction: A large tranche of text communications between Arizona state representative Mark Finchem and domestic terror leader Ali Alexander, the latter of whom is presently in hiding from seth abramson proof logofederal authorities, reveal that Alexander was in direct telephone contact with multiple United States senators on January 5, 2021—just 24 hours before what former United States Capitol Police chief Steven Sund has now called “a coordinated violent attack on the United States Capitol by thousands of well-equipped armed insurrectionists” and “a coordinated military style attack involving thousands.”

Alexander, the leader of the Stop the Steal “movement,” coordinated the events that produced the January 6 attack after repeatedly threatening violence against the U.S. government in December 2020 and in the days immediately preceding January 6. Among Alexander’s public threats from December 2020 and January 2021 are these:

• “I pray that I am the tool to stab these motherfuckers [in the U.S. government].”
• “When I do unleash [my] plan, I will unleash a legion of angels to bring hell to my enemies.”
• “One of our [Stop the Steal] organizers in one state said, ‘We’re nice patriots, we don’t throw bricks.’ I leaned over [to him] and I said, ‘Not yet. Not yet!’

Alexander is also on video leading a chant of “Victory or death!” in Freedom Plaza in Washington on Insurrection Eve.

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  • Proof via Substack, Investigation: Inside the Willard Hotel on January 6, Seth Abramson, left, June 8-9, 2021. One of Washington's most expensive hotels (above) was the nerve center for the seth abramson proof logoinsurrection—and a playground for seditious kingpins media and the FBI seem content to ignore for now. Proof takes a look inside.
  • Proof via Substack, Investigation: Team Trump Had a Second Pre-Insurrection War Room, Seth Abramson, left, June 6, 2021. An investigation of who was in this second Insurrection Eve warroom has now begun. 
  • Seth Abramson, shown above and at right, is founder of Proof and is a former criminal defense attorney and criminal investigator who teaches digital journalism, seth abramson resized4 proof of collusionlegal advocacy, and cultural theory at the University of New Hampshire. A regular political and legal analyst on CNN and the BBC during the Trump presidency, he is a best-selling author who has published eight books and edited five anthologies.

    Abramson is a graduate of Dartmouth College, Harvard Law School, the Iowa Writers' Workshop, and the Ph.D. program in English at University of Wisconsin-Madison. His books include a Trump trilogy: Proof of Corruption: Bribery, Impeachment, and Pandemic in the Age of Trump (2020); Proof of Conspiracy: How Trump's International Collusion Is Threatening American Democracy (2019); and Proof of Collusion: How Trump Betrayed America (2018). 

washington post logoWashington Post, FBI director berated for Jan. 6 failures and Giuliani probe as he testifies before House committee, Matt Zapotosky, June 10, 2021. Democrats and Republicans lobbed withering questions at the FBI as Director Christopher A. Wray testified before the House Judiciary Committee Thursday, though their concerns diverged significantly along partisan lines. 

Committee Chairman Jerrold Nadler (D-N.Y.) blasted Wray for the bureau’s failure to detect in advance and respond to the mob that attacked the U.S. Capitol on Jan. 6, while ranking Republican Jim Jordan (Ohio) accused the bureau of intruding on Americans’ civil liberties in an eclectic mix of circumstances.

The hearing made clear that Democrats and Republicans could hardly be further apart on what the FBI should and shouldn’t be doing. But on this much, they seemed to agree: the nation’s premier federal law enforcement institution had significant problems that needed to be addressed.

christopher wray oFor his part, Wray, right, sought to highlight how the bureau seeks to root out violence — no matter what motivates it — and is careful not to tread on Americans’ First Amendment rights.

In his opening statement, the FBI director highlighted the “extremist violence” of Jan. 6 in which more than 100 officers were injured in just a few hours and asserted that law enforcement had made more than 500 arrests.

But he also noted the bureau saw extremist violence during last summer’s civil unrest associated with racial justice protests. While he asserted that “most citizens made their voices heard through peaceful lawful, protests,” he said that others attacked federal buildings and left officers injured, and thousands had been arrested across the country.

“That is not a controversial issue that should force anyone to take sides,” he said, adding later in response to questions, “I don’t care whether you’re upset at our criminal justice system, or upset at our election system, violence, assaults on federal law enforcement, destruction of property, is not the way to do it. That’s our position.”

FBI report warned of ‘war’ at Capitol, contradicting claims there was no indication of looming violence

FBI logoNadler and other Democrats pressed Wray on the intelligence the bureau had gathered in advance of Jan. 6, and the actions it took that day as rioters stormed the Capitol. Nadler noted that a report from the bureau’s Norfolk field office from the day before seemed to predict what was going to happen, and it was forwarded to the field office in Washington. He questioned why — in the days after the riot — the head of that office insisted the bureau had no intelligence anything would happen beyond activity protected by the First Amendment.

“Did the FBI simply miss the evidence, or did it see the evidence and fail to piece it together?” Nadler asked.

Wray, as he and others have in the past, said the document was “raw, unverified” intelligence, and asserted that it nonetheless was shared with law enforcement partners, including the Capitol Police, in multiple ways.

“We tried to make sure that we got that information to the right people,” Wray said. He added that, among those arrested and charged so far in the Capitol attack, “almost none” were previously under investigation.

Federal agents execute search warrant at Giuliani’s home

Democrats also sought to get Wray to stress the seriousness of the Jan. 6 attack, while Republicans focused more on the summer’s unrest. Though Wray stressed the seriousness of both, he noted that with the summer’s violence across the country, it was often easier for prosecutors to pursue local charges, while the mayhem at the Capitol produced more federal offenses.

ny times logoNew York Times, 6 Men Said to Be Tied to Three Percenters Movement Charged in Capitol Riot, Alan Feuer and Matthew Rosenberg, June 10, 2021, The indictment marks the first charges lodged against conspirators linked to the radical gun rights group.

Federal prosecutors filed a wide-ranging conspiracy indictment on Thursday accusing six California men said to be connected to a radical gun rights movement called the Three Percenters with plotting to assault the Capitol on Jan. 6, in the first charges lodged against anyone involved with planning any of the political events held the week of the attack.

Justice Department log circularThe 20-page indictment was also the first to be brought against a group of alleged Three Percenters, a loosely organized movement that takes its name from the supposed 3 percent of the U.S. colonial population that fought against the British. The new charges, filed in Federal District Court in Washington, came on the same day that Christopher A. Wray, the F.B.I. director, testified in front of a House committee that prosecutors were pursuing additional conspiracy charges against some of the rioters who stormed the Capitol.

Investigators have said for months that several extremist groups were involved in the attack, but while the Three Percenters have been occasionally mentioned in court filings, most accused extremists have come from two other groups: the Oath Keepers militia and the far-right nationalist group the Proud Boys. The new charges could suggest that prosecutors have started to pay attention not only to those who directly took part in the Capitol attack, but also to those who helped foment the assault.

The two top defendants in the indictment — Alan Hostetter, 56, a former police chief turned yoga instructor; and Russell Taylor, 40, a wealthy graphic designer with a taste for red Corvettes — were already under scrutiny by the government after the F.B.I. raided their homes in January. Mr. Hostetter and Mr. Taylor were leaders of a group called the American Phoenix Project, which was founded to fight the “fear-based tyranny” of coronavirus-related restrictions. The group later embraced former President Donald J. Trump’s lies about a stolen election, and helped organize a well-attended rally outside the Supreme Court on Jan. 5, where the speakers included Roger J. Stone Jr., a former adviser to Mr. Trump.

Mr. Hostetter’s wife, Kristine, a schoolteacher, also attracted national attention this year after she attended “Stop the Steal” rallies in Washington, setting off a furor in their hometown, San Clemente, Calif., that prompted an investigation by the school board into whether she had attacked the Capitol. She was cleared by the district in March.

washington post logoWashington Post, He brought a sawed-off rifle to the Capitol on Jan. 6. Then he plotted to bomb Amazon data centers, Katie Shepherd, June 10, 2021. For weeks this spring, 28-year-old Seth Aaron Pendley had plotted an attack on Amazon data centers in Virginia. He had already taken a sawed-off rifle to the U.S. Capitol on Jan. 6. Now, he hoped to cripple much of the Internet and take down government networks.

Last April, he finally arranged a meeting with a man promising to provide the C-4 explosive devices. When they met in Fort Worth, Tex., the man showed Pendley how to arm and detonate the powerful bombs.

But just as Pendley placed the devices into his Pontiac, federal agents swarmed in and arrested him. The bomb seller was actually an FBI plant who had helped unravel a plan Pendley believed could “kill off about 70 percent of the internet.”

On Wednesday, Pendley pleaded guilty to planning to bomb Amazon facilities in an attempt to undermine the U.S. government and to spark a rebellion against the “oligarchy” he believed to be running the country.

The case underscores the dramatic rise in domestic terrorism driven by right-wing extremists and raises concerns about those who participated in the Jan. 6 insurrection plotting new attacks. Domestic attacks peaked in 2020, mostly driven by white-supremacist, anti-Muslim and anti-government extremists. Those far-right attacks have killed 91 people since 2015, according to an analysis by The Washington Post.

Justice Department officials on Wednesday said Pendley’s plans could have injured or killed workers at the Amazon facilities if the FBI hadn’t intervened.

“Due in large part to the meticulous work of the FBI’s undercover agents, the Justice Department was able to expose Mr. Pendley’s twisted plot and apprehend the defendant before he was able to inflict any real harm,” Prerak Shah, the acting U.S. attorney for the Northern District of Texas, said in a statement. “We may never know how many tech workers’ lives were saved through this operation — and we’re grateful we never had to find out.”

Pendley’s plot against the government began to take shape in January, according to investigators. He said he traveled to D.C. on Jan. 6 with a sawed-off rifle concealed in a backpack. As a pro-Trump mob stormed the Capitol, he decided to leave the gun in his car and never entered the building, according to court records. But he later boasted about taking a piece of broken glass from the federal building home to Texas with him.

Under his plea agreement, Pendley faces between five and 20 years in prison, a fine of up to $250,000, and three years of probation and will be banned from owning firearms.

washington post logoWashington Post, Trump’s election fraud claims propelled them to the Capitol on Jan. 6. His ongoing comments are keeping them in jail, Rachel Weiner and Spencer S. Hsu, June 10, 2021 (print ed.). Many of those charged in the Jan. 6 attack on the Capitol have blamed former president Donald Trump for their actions, saying he riled them with his claims of election fraud and his promises to join them in fighting it.

Now, Trump’s continued refusal to accept the results of the 2020 election is helping to keep some of those supporters behind bars.

“The steady drumbeat that inspired defendant to take up arms has not faded away; six months later, the canard that the election was stolen is being repeated daily on major news outlets and from the corridors of power in state and federal government, not to mention the near-daily fulminations of the former President,” U.S. District Judge Amy Berman Jackson wrote recently in denying bond to a Colorado man. The man is accused of driving to Washington with two firearms and thousands of rounds of ammunition after threatening to kill House Speaker Nancy Pelosi (D-Calif.) and D.C. Mayor Muriel E. Bowser (D).

Although Trump has been blocked from major social media platforms and recently shut down his own blog, he is still monitoring and promoting false claims of election fraud. Citing Trump’s ongoing comments, federal judges have shared fears that those defendants accused of the worst violence or threats of violence that day remain a danger to public safety.
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“Unfortunately,” said Judge Amit Mehta in detaining a man accused of throwing a hatchet and a desk during the riot, the “political dynamics that gave way to January 6th have not faded.”

Push to undermine election in Pennsylvania ‘like this rogue thing’

In keeping a Trump supporter and felon in jail in Michigan pending trial, Jackson highlighted a message in which the man said he was in D.C. on Jan. 6 because “Trump’s the only big shot I trust right now.”

The man has been charged with obstructing a congressional proceeding and related crimes, and his “promise to take action in the future cannot be dismissed as an unlikely occurrence given that his singular source of information . . . continues to propagate the lie that inspired the attack on a near daily basis,” Jackson wrote.

At least half a dozen defendants detained on riot-related charges have been released in recent weeks in part by arguing that the insurrection was a singular event that could not be re-created. That argument was upheld by the U.S. Court of Appeals for the District of Columbia, which found that the dangerousness of any individual defendant had to be considered in light of the fact that “the specific circumstances of January 6” created “a unique opportunity to obstruct democracy.”

ny times logoNew York Times, Texas Attorney General Is Being Investigated by State Bar Association, Dave Montgomery, June 10, 2021. Attorney General Ken Paxton is accused of filing a frivolous lawsuit when he challenged President Biden’s victory.

The State Bar of Texas is investigating whether Attorney General Ken Paxton committed professional misconduct by challenging President Biden’s victory in the courts, which a complaint called a “frivolous lawsuit” that wasted taxpayer money.

The investigation, which could result in discipline ranging from a reprimand to disbarment, is the latest obstacle for Mr. Paxton, who has been at the center of bribery and corruption accusations and was indicted in 2015 on allegations of securities fraud in a case that has not been resolved.

Mr. Paxton, a Republican, is also being challenged by a member of the Bush family in next year’s primary for attorney general, the state’s highest law enforcement office and a position that has served as a political springboard. He was preceded in office by Gov. Greg Abbott and Senator John Cornyn.

After it became clear that Mr. Biden won the election, Mr. Paxton filed a lawsuit in early December that was ridiculed by many legal experts and ultimately rejected by the U.S. Supreme Court. He had asked the court to extend a deadline for the certification of presidential electors, arguing that election irregularities in four other states — Georgia, Michigan, Pennsylvania and Wisconsin — warranted further investigation.

That month, Kevin Moran, a retired Houston Chronicle reporter and president of the Galveston Island Democrats, filed a grievance to the Texas State Bar. In his filing, Mr. Moran contended that Mr. Paxton knew the lawsuit lacked legal merit and that any unelected lawyer would face disciplinary action for filing a frivolous lawsuit.

“Knowing that the national election had NOT been rigged or stolen, he acted in a way to stoke those baseless conspiracy theories nationwide,” Mr. Moran wrote.

The State Bar of Texas said it was prohibited by statute from discussing any pending matters, and the attorney general’s office did not reply to a request for comment.

Mr. Paxton’s campaign spokesman, Ian Prior, denounced the complaint as a “low-level stunt” and “frivolous allegation,” adding that “Democrats in Texas keep showing just how much they can’t stand election integrity.”

The complaint was initially dismissed by the state bar’s chief disciplinary counsel’s office but later revived by its Board of Disciplinary Appeals, which is appointed by the Texas Supreme Court. The 12-member board notified Mr. Moran in late May that it had granted his appeal after “finding that the grievance alleges a possible violation” of the Texas Disciplinary Rules of Professional Misconduct.

Mr. Moran, 71, said on Thursday that he had filed the complaint as “an upset citizen” — not as a Democratic official — because he was outraged by the attorney general’s lawsuit, particularly after a multitude of judges had upheld Mr. Biden’s victory.

“With his track record, I believe he should be disbarred,” he said of Mr. Paxton.

After receiving a letter from the state bar in January that dismissed his complaint, Mr. Moran filed an appeal that he said he was somewhat surprised to see granted.

Mr. Paxton, in his second term as the Texas attorney general, faces a tough re-election campaign against George P. Bush, the state’s land commissioner as well as the grandson of former President George H.W. Bush and the son of Jeb Bush, the former governor of Florida. Both candidates are vying for an endorsement from former President Donald J. Trump, who still wields influence over Texas Republicans.

Palmer Report, Opinion: The disbarment of House GOP stooge Mo Brooks, Shirley Kennedy, June 9, 2021. What can be said about Alabama Congressman Mo Brooks? Certainly, nothing good. He was one of the people who spoke at Trump’s insurrection rally on January 6. He was talking like such a tough guy, encouraging people to “take down names and kick ass.”

Now, he is whining like a baby about being served with Eric Swalwell’s lawsuit. Brooks is a typical bully who talks a big game until he is confronted. Then, he tucks his tail between his legs, lowers his head, and hopes no one notices him. We notice him alright — we notice him as one more person who has no right being in the seat of our government. Brooks is not the type of congressman anyone deserves, even Alabama.

bill palmer report logo headerAccording to CBS News, Brooks was served Sunday after some effort by Swalwell. Trump, Trump Jr., and Giuliani all waived service, but Brooks refused. After getting an extension from the court to get Brooks served, Swalwell’s process service perfected service on Brooks’ wife.

mo brooks oBrooks, right, claims that Swalwell’s process servers criminally trespassed on his property: “HORRIBLE Swalwell’s team committed a CRIME by unlawfully sneaking INTO MY HOUSE & accosting my wife!” Dude, that is how service works. The law allows service on an any adult residing in the residence, and the court accepts that as personal service. Though Brooks is probably not much of a lawyer, he is one, and he should know the rules of litigation. He is just mad because they finally got him. Swalwell is not the only one after Brooks.

Southern Poverty Law Center (“SPLC”) filed a bar complaint against Brooks in March with the Alabama Bar. The organization wants him disbarred for his involvement in the Capitol insurrection. The 203-page complaint accuses Brooks of “treason by levying war against the United States” for his words at the rally, which SPLC believes led directly to the insurrection. SPLC also accused Brooks of sedition, attempted overthrow of the government, incitement of a riot, and conspiracy to engage in treason. According to SPLC’s examination of reports and evidence, Brooks “may have committed at least eight state and federal crimes,” which, if proven, violate the Alabama Bar’s Rules of Professional Conduct.

While SPLC is unlikely to get Brooks disbarred, they can certainly create problems for him, which is the organization’s intent. Brooks’ defense to SPLC’s complaint is that his words have “been misrepresented by Democrats for political gain,” according to the Washington Times. He further claims that he was merely giving a “pep talk for the next election cycle.” What sense does this make? He is trying rev people up for an election that was, at the time, at least two and up to four years away. He gives the attendees too much credit. Most will not even remember what he said by the time the next election rolls around.

ny times logoNew York Times, Opinion: My Fellow Republicans, Stop Fearing This Dangerous and Diminished Man, Barbara Comstock, right, June 10, 2021 (print ed.). Republicans must authorize an investigation of Jan. 6.  When Donald Trump, the patron saint of sore losers, appeared at a Republican event on Saturday night and compared the 2020 election to a “third-world-country election like we’ve never seen before,” it wasn’t just another false rant from the former president. His words also described his attempted subversion of democracy in the run-up to the Jan. 6 riot at the Capitol.

barbara comstockConsider Mr. Trump’s remarks at his rally just before the attack: “If Mike Pence does the right thing, we win the election,” he said. “All Vice President Pence has to do is send it back to the states to recertify and we become president.”

Or consider Mr. Trump’s harassment of Georgia’s Republican secretary of state, Brad Raffensperger, with the request to “find” him votes, or his relentless harassment of other election officials and governors.

Many Republicans want to move on from the Jan. 6 attack. But how is that possible when the former president won’t move on from the Nov. 3 election and continues to push the same incendiary lies that resulted in 61 failed lawsuits before Jan. 6, led to an insurrection and could lead to yet more violence?

If you doubt that a threat of violence exists, look at the recent poll from the Public Religion Research Institute and the Interfaith Youth Core, which shows that a dangerous QAnon conspiracy theory is believed by 15 percent of our fellow Americans — including almost one in four Republicans, 14 percent of independents and even 8 percent of Democrats.

Republicans, instead of opposing a commission to investigate the events of Jan. 6, need to be at the forefront of seeking answers on the insurrection and diminishing the power of QAnon and the other conspiracy theories that Mr. Trump has fueled. While he is still popular within the party, Mr. Trump is a diminished political figure: 66 percent of Americans now hope he won’t run again in 2024, including 30 percent of Republicans. He is not the future, and Republicans need to stop fearing him. He will continue to damage the party if we don’t face the Jan. 6 facts head-on.

June 7

willard hotel

Proof via Substack, MAJOR BREAKING NEWS: Team Trump Had a Second Pre-Insurrection War Room, Seth Abramson, left, June 6-7, 2021. An investigation of who was in this second Insurrection Eve war seth abramson graphicroom has now begun.

Introduction: As this publication has exclusively and exhaustively detailed, on the eve of the January 6 insurrection Team Trump convened a 23-person war council at Trump International seth abramson proof logoHotel in D.C. to plot out—as attendees have since confessed—what would happen the following day. It is now clear that a second, contemporaneous pre-insurrection war council was held at a nearby Washington hotel and that it may well have been linked, through either phone or video conferencing, to the first.

This previously unreported news could significantly swell the size of Donald Trump’s pre-insurrection planning team, even as it remains possible (indeed, a possibility that has been extensively investigated here at Proof) that any remote conferencing that occurred the night before the January 6 insurrection also included the White House.

Seth Abramson, shown above and at right, is founder of Proof and is a former criminal defense attorney and criminal investigator who teaches digital journalism, seth abramson resized4 proof of collusionlegal advocacy, and cultural theory at the University of New Hampshire. A regular political and legal analyst on CNN and the BBC during the Trump presidency, he is a best-selling author who has published eight books and edited five anthologies.

Abramson is a graduate of Dartmouth College, Harvard Law School, the Iowa Writers' Workshop, and the Ph.D. program in English at University of Wisconsin-Madison. His books include a Trump trilogy: Proof of Corruption: Bribery, Impeachment, and Pandemic in the Age of Trump (2020); Proof of Conspiracy: How Trump's International Collusion Is Threatening American Democracy (2019); and Proof of Collusion: How Trump Betrayed America (2018).

supreme court resized 2021

washington post logoWashington Post, Supreme Court begins its sprint to finish — and a decision by one justice may be the most important, Robert Barnes, June 7, 2021 (print ed). As the court’s term winds down, decisions await on the future of the Affordable Care Act, gay and religious rights, and whether Justice Stephen G. Breyer will create an opening for President Biden to fill.

Supreme Court justices on Monday will begin the sprint to conclude their work this month, with pending decisions on issues as diverse as the fate of the Affordable Care Act and compensation for college athletes.

Stephen BreyerAlso on the docket: a voting-rights case that could determine how the court will decide future battles over the issue, a clash between a Catholic organization and a city’s anti-discrimination law, and whether school officials can discipline students for off-campus speech.

But perhaps the most consequential decision has no deadline and will be made by a court of one: 82-year-old Justice Stephen G. Breyer.

With Democrats taking over Washington, Breyer faces pressure to retire

The court’s senior liberal member has faced unprecedented pressure to step down from his lifetime appointment while a Democratic president is in the White House and the party still maintains its shaky majority in the Senate.

washington post logoWashington Post, Opinion, Something appears to be ‘simply, simply wrong’ at the Biden Justice Department, Fred Ryan (Washington Post publisher), June 7, 2021 (print ed). During the final days of the Trump administration, the attorney general used extraordinary measures to obtain subpoenas to secretly seize records of reporters at three leading U.S. news organizations. After this was reported last month, President Biden rightly decried this attack on the First Amendment, calling it “simply, simply wrong” and assuring Americans that it would not happen in his administration.

Unfortunately, new revelations suggest that the Biden Justice Department not only allowed these disturbing intrusions to continue — it intensified the government‘s attack on First Amendment rights before finally backing down in the face of reporting about its conduct.

After Biden took office, the department continued to pursue subpoenas for reporters’ email logs issued to Google, which operates the New York Times’ email systems, and it obtained a gag order compelling a Times attorney to keep silent about the fact that federal authorities were seeking to seize his colleagues’ records. Later, when the Justice Department broadened the number of those permitted to know about the effort, it barred Times executives from discussing the legal battle with the Times newsroom, including the paper’s top editor.

This escalation, on Biden’s watch, represents an unprecedented assault on American news organizations and their efforts to inform the public about government wrongdoing.

Last month, The Post learned of secret subpoenas authorized by President Donald Trump’s outgoing attorney general to obtain email information and home, cell and office telephone records of three Post reporters over a 3½-month span in 2017. We immediately requested an explanation and answers to several questions from the Justice Department as well as a meeting with the attorney general.

To date, no answers have been provided and the meeting has yet to take place. This delay is troubling. When asked about how the president’s assurances can be squared with his Justice Department’s behavior, White House press secretary Jen Psaki could offer no explanation. She subsequently released a statement disavowing White House knowledge of the actions that appear to have continued for several months during Biden’s presidency.

Throughout U.S. history, there have been inevitable differences between news organizations seeking to shed light on government activity and government officials seeking to preserve secrecy. As a society, we have become accustomed to these tensions. For the most part, they have been constructive and good for the health of our democracy. However, the egregious acts by the outgoing Trump Justice Department, and the apparent doubling down on them during the Biden administration, should alarm all Americans, regardless of political persuasion.

June 6

ny times logoNew York Times, Meadows Pressed Justice Dept. to Investigate Election Fraud Claims, Katie Benner, June 6, 2021 (print ed.). In Donald J. Trump’s final weeks in office, Mark Meadows, his chief of staff, repeatedly pushed the Justice Department to investigate unfounded conspiracy theories about the 2020 presidential election, according to newly uncovered emails provided to Congress, portions of which were reviewed by The New York Times.

mark meadows SmallIn five emails sent during the last week of December and early January, Mr. Meadows, right, asked Jeffrey A. Rosen, then the acting attorney general, to examine debunked claims of election fraud in New Mexico and an array of baseless conspiracies that held that Mr. Trump had been the actual victor. That included a fantastical theory that people in Italy had used military technology and satellites to remotely tamper with voting machines in the United States and switch votes for Mr. Trump to votes for Joseph R. Biden Jr.

None of the emails show Mr. Rosen agreeing to open the investigations suggested by Mr. Meadows, and former officials and people close to him said that he did not do so. An email to another Justice Department official indicated that Mr. Rosen had refused to broker a meeting between the F.B.I. and a man who had posted videos online promoting the Italy conspiracy theory, known as Italygate.

washington post logoWashington Post, Trump’s chief of staff pushed Justice Dept. to investigate baseless election fraud claims, Karoun Demirjian and Josh Dawsey, June 6, 2021 (print ed.). Former White House chief of staff Mark Meadows sent a series of emails to the acting attorney general in the waning weeks of Donald Trump’s presidency, as part of a campaign to strong-arm the Justice Department into investigating Trump’s spurious claims of widespread election fraud.

Meadows’s emails, first disclosed Saturday by the New York Times, demonstrate how the former president’s determination to overturn his election defeat was not just a personal obsession or localized jeffrey rosento his campaign, but an official project of the Trump White House. Attempts to reach Meadows directly were unsuccessful.

The brief but tumultuous tenure of acting attorney general Jeffrey Rosen, left, who led the Justice Department for only a month after his predecessor William P. Barr departed the administration in late December, was punctuated by the relentless campaign to legitimize Trump’s claims of a “stolen” election. Rosen was pressured to open an official investigation of voter fraud despite a lack of evidence — and even as Trump contemplated firing Rosen and replacing him with another Justice Department official seen as amenable to helping undermine the election results.

Rosen has firmly and repeatedly stated that, under his watch, no special prosecutors were appointed to look into the election and no statements questioning its results were made. But to date, he has refused to discuss the pressure he endured from the White House — or detail his conversations with Trump in the weeks ahead of the insurrection.

ny times logoNew York Times, Capitol Riot Fallout: At Once Diminished and Dominating, Trump Prepares for His Next Act, Annie Karni and Maggie Haberman, June 6, 2021 (print ed.). The former president speaks on Saturday to the North Carolina Republican convention, as he resumes political speeches and rallies.

Donald J. Trump, the former president of the United States, commutes to New York City from his New Jersey golf club to work out of his office in Trump Tower at least once a week, slipping in and out of Manhattan without attracting much attention.

The place isn’t as he left it. Many of his longtime employees are gone. So are most of the family members who once worked there with him and some of the fixtures of the place, like his former lawyer Michael D. Cohen, who have since turned on him. Mr. Trump works there, mostly alone, with two assistants and a few body men.

His political operation has also dwindled to a ragtag team of former advisers who are still on his payroll, reminiscent of the bare-bones cast of characters that helped lift a political neophyte to his unlikely victory in 2016. Most of them go days or weeks without interacting with Mr. Trump in person.

But as he heads to the North Carolina Republican convention on Saturday night, in what is billed as the resumption of rallies and speeches, Mr. Trump is both a diminished figure and an oversized presence in American life, with a remarkable — and many say dangerous — hold on his party.

Even without his favored megaphones and the trappings of office, Mr. Trump looms over the political landscape, animated by the lie that he won the 2020 election and his own fury over his defeat. And unlike others with a grievance, he has been able to impose his anger and preferred version of reality on a substantial slice of the American electorate — with the potential to influence the nation’s politics and weaken faith in its elections for years to come.

Still blocked from Twitter and Facebook, he has struggled to find a way to influence news coverage since leaving office and promote the fabrication that the 2020 election was stolen from him.

Mr. Trump, who White House officials said watched with pleasure as his supporters stormed the Capitol and disrupted the Jan. 6 certification of the Electoral College vote, has told several people he believes he could be “reinstated” to the White House this August, according to three people familiar with his remarks. He has been echoing a theory promulgated by supporters like Mike Lindell, the chief executive of MyPillow, and Sidney Powell, the lawyer being sued for defamation by election machine companies for spreading conspiracy theories about the safety of their ballots.

President Biden’s victory, with more than 80 million votes, was certified by Congress once the Jan. 6 riot was contained. There is no legal mechanism for reinstating a president, and the efforts by Republicans in the Arizona Senate to recount the votes in the state’s largest county have been derided as fake and inept by local Republican officials, who say the result is a partisan circus that is eroding confidence in elections.

June 2

ny times logoNew York Times, Trump Administration Secretly Seized Phone Records of Times Reporters, Charlie Savage and Katie Benner, June 2, 2021. The admission by the Biden Justice Department followed similar recent disclosures to The Washington Post and CNN.

The Trump Justice Department secretly seized the phone records of four New York Times reporters spanning nearly four months in 2017 as part of a leak investigation, the Biden administration disclosed on Wednesday.

It was the latest in a series of revelations about the Trump administration secretly obtaining reporters’ communications records in an effort to uncover their sources. Last month, the Biden Justice Department disclosed Trump-era seizures of the phone logs of reporters who work for The Washington Post and the phone and email logs for a CNN reporter.

Dean Baquet, the executive editor of The Times, condemned the action by the Trump administration.

“Seizing the phone records of journalists profoundly undermines press freedom,” he said in a statement. “It threatens to silence the sources we depend on to provide the public with essential information about what the government is doing.”

Last month, after the disclosures about the seizures of communications records involving Post and CNN reporters, President Biden said he would not allow the department to take such a step during his administration, calling it “simply, simply wrong.”

Referring to that declaration, Mr. Baquet added: “President Biden has said this sort of interference with a free press will not be tolerated in his administration. We expect the Department of Justice to explain why this action was taken and what steps are being taken to make certain it does not happen again in the future.”

Anthony Coley, a Justice Department spokesman, said that law enforcement officials obtained the records in 2020, and added that “members of the news media have now been notified in every instance” of leak investigations from the 2019-2020 period in which their records were sought.

The department informed The Times that law enforcement officials had seized phone records from Jan. 14 to April 30, 2017, for four Times reporters: Matt Apuzzo, Adam Goldman, Eric Lichtblau and Michael S. Schmidt. The government also secured a court order to seize logs — but not contents — of their emails, it said, but “no records were obtained.”

The Justice Department did not say which article was being investigated. But the lineup of reporters and the timing suggested that the leak investigation related to classified information reported in an April 22, 2017, article the four reporters wrote about how James B. Comey, then the F.B.I. director, handled politically charged investigations during the 2016 presidential election.

Discussing Mr. Comey’s unorthodox decision to announce in July 2016 that the F.B.I. was recommending against charging Hillary Clinton in relation to her use of a private email server to conduct government business while secretary of state, the April 2017 article mentioned a document obtained from Russia by hackers working for Dutch intelligence officials. The document, whose existence was classified, was said to have played a key role in Mr. Comey’s thinking about the Clinton case.

The document has been described as a memo or email written by a Democratic operative who expressed confidence that the attorney general at the time, Loretta Lynch, would keep the Clinton investigation from going too far. Russian hackers had obtained the document, but it is apparently not among those that Russia sent to WikiLeaks, intelligence officials concluded.

Mr. Comey was said to be worried that if Ms. Lynch were to be the one who announced a decision not to charge Mrs. Clinton, and Russia then made the document public, it would be used to raise doubts about the independence of the investigation and the legitimacy of the outcome.

The Times reported in January 2020 that Trump-era investigators had pursued a leak investigation into whether Mr. Comey had been the source of the unauthorized disclosure in that 2017 article.

Mr. Comey had been under scrutiny since 2017, after Mr. Trump fired him as the director of the F.B.I. After his dismissal, Mr. Comey engineered — through his friend Daniel Richman, a Columbia University law professor — the disclosure to The Times of accounts of several of his conversations with the president related to the Russia investigation.

The inquiry into Mr. Comey, according to three people briefed on that investigation, was eventually code-named Arctic Haze. Its focus was said to evolve over time, as investigators shifted from scrutinizing whether they could charge Mr. Comey with a crime for disclosing his conversations with Mr. Trump, to whether he had anything to do with the disclosure of the existence of the document.

As part of that effort, law enforcement officials had seized Mr. Richman’s phone and computer, according to a person familiar with the matter. They are said to have initially searched them for material about Mr. Comey’s conversations with Mr. Trump, and later obtained a court’s permission to search them again, apparently about the Russia document matter.

Separately, according to a person briefed on the investigation, the F.B.I. is also said to have subpoenaed Google in 2020, seeking information relevant to any emails between Mr. Richman and The Times. A spokesman for Google did not respond to a request for comment.

But by November 2020, some prosecutors felt that the F.B.I. had not found evidence that could support any charges against Mr. Comey, and they discussed whether the investigation should be closed.

At the beginning of this year, prosecutors were informed that the F.B.I. was not willing to close the case — in part because agents still wanted to interview Mr. Comey, according to a person familiar with the F.B.I.’s inquiry. Interviewing the subject of an investigation is typically considered a final step before closing a matter or bringing charges.

Last month, the F.B.I. asked Mr. Comey’s lawyer whether he would be willing to sit down for an interview, a request that Mr. Comey declined, according to a person familiar with the case.

Starting midway through the George W. Bush administration, and extending through the Barack Obama and Donald Trump administrations, the Justice Department became more aggressive about pursuing criminal leak investigations.

June 1

washington post logoWashington Post, Opinion: A frantic warning from 100 leading experts: Our democracy is in grave danger, Greg Sargent, right, June 1, 2021. Democrats can’t say they weren’t warned. With yet another GOP effort to restrict voting underway in Texas, President Biden is now calling on Congress to act in the face of the Republican “assault on democracy.” Importantly, Biden cast that attack as aimed at greg sargent“Black and Brown Americans,” meriting federal legislation in response.

That is a welcome escalation. But it remains unclear whether 50 Senate Democrats will ever prove willing to reform or end the filibuster, and more to the point, whether Biden will put real muscle behind that cause. If not, such protections will never, ever pass.

Now, in a striking intervention, more than 100 scholars of democracy have signed a new public statement of principles that seeks to make the stakes unambiguously, jarringly clear: On the line is nothing less than the future of our democracy itself.

“Our entire democracy is now at risk,” the scholars write in the statement, which I obtained before its release. “History will judge what we do at this moment.”

And these scholars underscore the crucial point: Our democracy’s long-term viability might depend on whether Democrats reform or kill the filibuster to pass sweeping voting rights protections.

american flag upside down distress“We urge members of Congress to do whatever is necessary — including suspending the filibuster — in order to pass national voting and election administration standards,” the scholars write, in a reference to the voting rights protections enshrined in the For the People Act, which passed the House and is before the Senate.

What’s striking is that the statement is signed by scholars who specialize in democratic breakdown, such as Pippa Norris, Daniel Ziblatt and Steven Levitsky. Other well-known names include Francis Fukuyama and Jacob Hacker.

“We wanted to create a strong statement from a wide range of scholars, including many who have studied democratic backsliding, to make it clear that democracy in America is genuinely under threat,” Lee Drutman, senior fellow at New America and a leading organizer of the letter, told me.

“The playbook that the Republican Party is executing at the state and national levels is very much consistent with actions taken by illiberal, anti-democratic, anti-pluralist parties in other democracies that have slipped away from free and fair elections,” Drutman continued.

Among these, the scholars note, are efforts by GOP-controlled state legislatures everywhere to restrict access to voting in ways reminiscent of tactics employed before the United States became a real multiracial democracy in the mid-1960s:orse, June 1, 2021. Eduardo Valdivia was indicted by a Montgomery County grand jury in the December shooting that occurred on a moving Red Line train. Officials have said a “verbal exchange” preceded the shooting.

An FBI agent who shot another passenger during a confrontation aboard a moving subway train just outside Washington was indicted on attempted murder and other counts, according Maryland court records unsealed Tuesday morning.

FBI logoEduardo Valdivia, 37, was also charged with first-degree assault, reckless endangerment, and use of a firearm in the commission of a felony stemming from the early-morning encounter six months ago on a southbound Metro Red Line train. The passenger who was struck was hospitalized with gunshot wounds but survived.

Valdivia was booked into the Montgomery County Detention Center Tuesday morning, according to online records and a jail official, after turning himself in. He was expected to appear in court later in the day to have the conditions of his bond reviewed. No trial date has been set.

Law enforcement officials have described Valdivia’s actions as an extreme overreaction to a stranger with a history of aggressive panhandling who confronted the agent but did not physically assault him. There has been no indication that the man was armed.

ny times logoNew York Times, Retired F.B.I. Agent Is Accused of Swindling Texas Woman Out of $800,000, Azi Paybarah, June 1, 2021 (print ed.). The former agent told the woman she was on “secret probation” over drug crimes and at one point proposed marriage, federal prosecutors said.

A retired F.B.I. agent in Texas has been indicted on fraud charges and accused of conning a woman out of $800,000 by convincing her that she was on “secret probation” for drug crimes and needed to pay him and an accomplice for their work to “mentor” and “supervise” her, federal prosecutors said on Friday.

FBI logoThe man, William Roy Stone Jr., 62, who had retired from the Dallas field office of the F.B.I. about a month before the scam began, even proposed marrying the victim and said he would try to discharge her from probation, prosecutors said.

“Stone allegedly conned, threatened and stole from his victim, exploiting her trust in law enforcement for his own financial gain,” Cloey C. Pierce, special agent in charge of the Justice Department’s inspector general’s office in Dallas, said in a statement.

Gregg Gallian, a lawyer for Mr. Stone, said in a statement on Sunday, “Mr. Stone will clear his name in the courtroom and, in doing so, will bring the actual facts of this case to light.” Mr. Gallian added, “There is much more to this story.”

According to a statement from prosecutors, Mr. Stone was indicted on Tuesday by a grand jury on seven counts of wire fraud, one count of wire fraud conspiracy, one count of impersonating a federal officer, “one count of engaging in monetary transactions in property derived from unlawful activity” and one count of giving false statements to law enforcement.

Mr. Stone retired from the F.B.I. office in Dallas in October 2015. At some point the following month, he was in contact with a woman in Granbury, Texas, southwest of Fort Worth, identified only as “C.T.” Mr. Stone told her she was on “secret probation” for drug crimes in “Judge Anderson’s court in Austin, Texas,” and that this court had assigned Mr. Stone and another person, who was not identified, to “mentor” and “supervise” her.

As a part of this probation, prosecutors said, Mr. Stone told the woman that she was obligated to pay the expenses he incurred traveling to Austin to speak with the judge about her probation. Mr. Stone also told C.T. that she had to report all of her activities, and assets, to him.

Mr. Stone also told the woman that she was forbidden to disclose her probation status to anyone, and that if she did not comply with these terms, she could be imprisoned and lose custody of her children, prosecutors said.

Mr. Stone’s scheme was effective, prosecutors said. The victim gave him “over $800,000 in money and property,” according to the indictment. Prosecutors said property linked to Mr. Stone’s dealings with the woman included a home on Kennedy Drive in Colleyville, Texas, a 2017 Toyota Tacoma and a 2016 Mercedes CLS.

 ny times logoNew York Times, As Harvard Case Looms at Supreme Court, Study Tests Value of Diversity, Adam Liptak, June 1, 2021 (print ed.). After prestigious law reviews adopted diversity policies for choosing student editors, researchers found, the articles they published were cited more often.

The Supreme Court is set to consider next week whether to hear a challenge to Harvard’s race-conscious admissions program. If the justices take the case — a reasonably safe bet — affirmative action in higher education, which has survived several close calls at the court, will again be in peril.

harvard logoIts main vulnerability will be the contested and largely untested proposition that diversity enhances education, and that students of different backgrounds benefit from learning from one another.

The court has said that idea is the sole permissible rationale for taking account of race in admissions decisions. But members of what is now a six-justice conservative bloc have mocked the notion and questioned how it could be subjected to meaningful judicial scrutiny.

“What unique perspective does a minority student bring to a physics class?” Chief Justice John G. Roberts Jr. asked at a 2015 argument over the constitutionality of an affirmative action program at the University of Texas.

The next year, the court upheld the program by a 4-to-3 vote. (Justice Antonin Scalia’s seat was vacant after his death that February, and Justice Elena Kagan was recused.) In dissent, Justice Samuel A. Alito Jr., joined by the chief justice and Justice Clarence Thomas, said that there was no way of knowing whether diversity was working.

The university’s main argument, Justice Alito wrote, “is that merely invoking ‘the educational benefits of diversity’ is sufficient and that it need not identify any metric that would allow a court to determine whether its plan is needed to serve, or is actually serving, those interests.

  

May 

May 24

washington post logoWashington Post, Investigation: Commerce Dept. security unit became counter-intelligence-like operation, Shawn Boburg, May 24, 2021. An obscure security unit tasked with protecting the Commerce Department’s officials and facilities has evolved into something more akin to a counterintelligence operation that collected information on hundreds of people inside and outside the department, a Washington Post examination found.

The Investigations and Threat Management Service (ITMS) covertly searched employees’ offices at night, ran broad keyword searches of their emails trying to surface signs of foreign influence and scoured Americans’ social media for critical comments about the census, according to documents and interviews with five former investigators.

In one instance, the unit opened a case on a 68-year-old retiree in Florida who tweeted that the census, which is run by the Commerce Department, would be manipulated “to benefit the Trump Party!” records show.

commerce dept logoIn another example, the unit searched Commerce servers for particular Chinese words, documents show. The search resulted in the monitoring of many Asian American employees over benign correspondence, according to two former investigators.

The office “has been allowed to operate far outside the bounds of federal law enforcement norms and has created an environment of paranoia and retaliation at the Department,” John Costello, a former deputy assistant secretary of intelligence and security at Commerce in the Trump administration, said in a statement for this story.

ITMS “rests on questionable legal authority and has suffered from poor management and lack of sufficient legal and managerial oversight for much of its existence,” Costello said.

Concerns have long simmered internally about the Commerce unit, which was led for more than a decade by career supervisor George D. Lee.

The unit’s tactics appear as if “someone watched too many ‘Mission Impossible’ movies,” said Bruce Ridlen, a former supervisor.

Investigators lodged complaints with supervisors, and the department’s internal watchdog launched multiple inquiries, documents show. In an internal memo laying out his concerns about the unit, Costello described an inspector general’s investigation that he said had found it had no legal authority to conduct criminal investigations.

Incoming Commerce leaders from the Biden administration ordered ITMS to pause all criminal investigations on March 10, and on May 13 ordered the suspension of all activities after preliminary results of an ongoing review, according to a statement issued by department spokeswoman Brittany Caplin.

Proof via Substack, Major New Revelations About Donald Trump's January 5 Pre-Insurrection War Council (Part III), Seth Abramson, left, May 23-24, 2021. Introduction to Part III: The most chilling sentence seth abramson graphicinAli Alexander’s chilling January 13 interview with the chillingly named Church Militant of Michigan is this one: “We [Stop the Steal] own all of [the government of] Arizona except katie hobbsfor the Secretary of State [Katie Hobbs, right].

”In the interview, Alexander credits one man with ensuring that Stop the Steal could take over Arizona’s government: Arizona state representative and Oath Keeper Mark Finchem, the man Trump praised in Georgia on January 4 as a “great political leader.”

As Oath Keepers like Finchem get arrested by the dozens, and Finchem’s presence at the Capitol in a golf cart becomes national news, and Finchem faces the possibility of a state ethics investigation and there is a steady drumbeat of calls for his resignation or expulsion from not just Arizona Democrats but even journalists, it is becoming harder and harder for Finchem to find reliable allies in Phoenix.

A notable exception is a fellow Arizona Republican state representative who is, like Finchem, a self-described Oath Keeper: Wendy Rogers. Rogers, who spent January 6 at a massive Stop the Steal rally in Phoenix, watched with glee on January 4 as the President of the United States name-checked her friend Mark Finchem.

seth abramson proof logoProof via Substack, Major New Revelations About Donald Trump's January 5 Pre-Insurrection War Council (Part II), Seth Abramson, left, May 23-24, 2021. Introduction to Part II: The mystery of the strange conclave at Trump's private residence at Trump International Hotel is unraveling — revealing new evidence about the Oath Keepers, U.S. senators likely in attendance, and more.

These are Parts II and III of a three-part exposé on the pre-insurrection war council held on January 5, 2021, at Donald Trump’s private residence in Trump International Hotel in Washington. Proof via Substack, Major New Revelations About Donald Trump's January 5 Pre-Insurrection War Council (Part I), Seth Abramson.

Seth Abramson, shown above and at right, is founder of Proof and is a former criminal defense attorney and criminal investigator who teaches digital journalism, seth abramson resized4 proof of collusionlegal advocacy, and cultural theory at the University of New Hampshire. A regular political and legal analyst on CNN and the BBC during the Trump presidency, he is a best-selling author who has published eight books and edited five anthologies.

Abramson is a graduate of Dartmouth College, Harvard Law School, the Iowa Writers' Workshop, and the Ph.D. program in English at University of Wisconsin-Madison. His books include a Trump trilogy: Proof of Corruption: Bribery, Impeachment, and Pandemic in the Age of Trump (2020); Proof of Conspiracy: How Trump's International Collusion Is Threatening American Democracy (2019); and Proof of Collusion: How Trump Betrayed America (2018).

Wayne Madsen Report, Investigative Commentary: Be wary of the 6th of January -- a coup by any other name, Wayne Madsen, left, May 24, 2021. The right-wing coup continues as a "rolling putsch." wayne madsen may 29 2015 cropped SmallEven without a congressionally-mandated January 6 Commission, we are slowly learning more about the premeditated attempt by Donald Trump and members of his administration and key support groups to overthrow the government of the United States on January 6, 2021.

wayne madesen report logoThanks to Washington Metropolitan Police memos hacked into and released by a ransomware group and a disclosure by an aide to Representative Carlos Gimenez (R-FL), it is now known that the Boogaloo Bois and members of the Qanon cult were planning on attacking other targets in Washington, DC on and after January 6 -- and that among these targets was the FBI Headquarters on Pennsylvania Avenue.

Alex Ferro, an aide to Gimenez, reported to both the FBI and US Capitol Police that he overheard one Trump supporter, who was dressed in military-type tactical gear, talking about seizing control of the FBI Building on Pennsylvania Avenue on the morning of January 6.

franklin d rooseveltRepublican leaders in the Congress are adamantly opposed to a January 6 Commission with the power to subpoena those with direct knowledge of what is beginning to look like a pre-planned "rolling coup" that extended from prior to January 6 through January 20.

The January coup attempt by Trump loyalists came the closest to an overthrow of the government since the aborted 1933 right-wing "Wall Street bankers" coup against President Franklin D. Roosevelt, right. That plot was disclosed by retired Marine Corps General Smedley Butler.

 djt impeachment graphic

state dept map logo Small

washington post logoWashington Post, Key impeachment witness who accused Trump of quid pro quo sues Pompeo, U.S. for $1.8 million, John Hudson, May 24, 2021. President Donald Trump’s former ambassador to the European Union, Gordon Sondland, right, is suing former secretary of state Mike Pompeo and the U.S. government for $1.8 million to compensate for legal fees incurred during the 2019 House impeachment probe.

gordon sondland oThe suit, filed Monday in federal court in the District of Columbia, alleges that Pompeo reneged on his promise that the State Department would cover the fees after Sondland delivered bombshell testimony accusing Trump and his aides of pressuring the government of Ukraine to investigate then presidential candidate Joe Biden and his son Hunter in exchange for military aid.

Sondland, a Portland hotel magnate appointed by Trump to serve as ambassador, became a key witness of the impeachment probe because of his firsthand knowledge of conversations with Trump, his attorney Rudy Giuliani and senior Ukrainian officials — as well as his punchy answers, affable demeanor and colorful language.

The allegations in the suit also offer new details on Sondland’s rapid devolution from Trump insider to political outcast in the span of days.

mike pompeo portraitThe complaint alleges that Pompeo, left, told Sondland that government lawyers would not be made available to represent him but that if he hired his own counsel, his attorney fees would be covered by the U.S. government. Top aides to Pompeo also acknowledged this commitment, the suit alleges, but “everything changed” after Sondland delivered his testimony alleging a “quid pro quo” and then refused to resign despite a request from one of Pompeo’s most trusted aides, Ulrich Brechbuhl.

“Ambassador Sondland confirmed he would not resign because he did not do anything improper. After that, everything changed. Ambassador Sondland did not receive his attorneys’ fees, notwithstanding the promises from the State Department that the attorneys’ fees would be paid,” the suit alleges.Sondland is demanding that the U.S. government cover the fees or Pompeo pay out of his own pocket. The suit argues that Pompeo’s actions as secretary of state should not be subject to governmental immunity because the promise “was self-serving, made entirely for personal reasons for his own political survival in the hopes that Ambassador Sondland would not implicate him or others by his testimony.”

In the past year, Sondland’s businesses empire, including several hotels in Portland, was badly hit by the coronavirus pandemic, which decimated tourism across the country. Before being tapped by Trump for the ambassador position, Sondland donated $1 million to the president’s inaugural committee.

washington post logoWashington Post, Lawmakers worry the toxic mood on Capitol Hill will follow them home, Marianna Sotomayor and Paul Kane, May 24, 2021 (print ed.). House members head out of Washington for three weeks, anger at each other is turning into fear of what could await them back home.

Tensions among lawmakers have been running high since the Jan. 6 attack on the Capitol by a pro-Trump mob and have only increased in recent weeks. The two parties are clashing over how to investigate what transpired that day and whether, or how, to ease precautions put in place to keep members and staff safe during the pandemic.

U.S. House logoThe tenor of the debate has been highly personal, with Democrats expressing a sense of distrust toward their Republican colleagues with regard to their personal safety and health, while many GOP members are accusing Democrats of using the tragedies of the attack and the pandemic to score political points.

Now, several Democrats said they are concerned that the toxic political culture on Capitol Hill could greet them back home as their communities open up, with the pandemic waning and vaccination rates rising, and there is pressure to hold more in-person events.

“Obviously we’re going to return to more outward-facing live, in-person things and I’m thrilled about that. I want to do that,” said Rep. Susan Wild (D-Pa.). “I think we’re going to have to be very cautious. I think there’s going to have to be some ramped-up security. Hopefully it’s going to be low key, I don’t want people to feel like they’re walking into an armed event, but I imagine doing a lot of events in parks, in the daytime, staffers and local police are around.”

Bitter anger over Jan. 6 riots lingers in the House, prompting a week of tense standoff and legislative stalemate

Several Democratic members have privately expressed their concerns to leadership about security back home as threats have risen, according to people familiar with the discussions who spoke on the condition of anonymity to describe the conversations. Some of these Democrats said they have paid out of their own pocket to increase security at their district offices or install security systems in their homes out of an abundance of caution.

May 20

washington post logoWashington Post, Texas governor signs bill to ban abortion as early as six weeks into pregnancy, Timothy Bel, May 20, 2021 (print ed.). By banning abortion after the six-week mark, many women in Texas who are not even aware they are pregnant will not be allowed to get the procedure performed in the state.

Greg Abbott CustomTexas Gov. Greg Abbott (R), right, on Wednesday signed legislation banning abortions in the state as early as six weeks into a pregnancy, a measure slammed by critics as one of the strictest and most extreme measures in the nation and hailed by antiabortion supporters as a landmark achievement.

The Texas bill known as S.B. 8, described as a “heartbeat ban” abortion measure, prohibits the procedure the moment a fetal heartbeat has been detected. By banning abortion after the six-week mark, many women in Texas who are not even aware they are pregnant will not be allowed to get the procedure done in the state. The bill, which goes into effect Sept. 1, does not include exceptions for women impregnated as a result of rape or incest, but offers a provision for medical emergencies.

Abbott, who had publicly offered his support of the bill, celebrated what he deemed a victory for Texans while surrounded by Republicans gathered to watch him sign the proposal in Austin: “The heartbeat bill is now law in the Lone Star State.”

supreme court resized 2021

ny times logoNew York Times, Supreme Court Case Throws Abortion Into 2022 Election Picture, Carl Hulse and Lisa Lerer, May 20, 2021. Supporters and opponents of abortion rights say a major ruling just before the midterm elections could upend political calculations for the two parties.

Motivated in part by a belief that the Supreme Court (shown above) will give them new latitude to restrict access, Republican-dominated states continue to adopt strict new legislation, with Gov. Greg Abbott of Texas signing into law on Wednesday a prohibition on abortions after as early as six weeks. The law, sure to face legal challenges, is one of more than 60 new state-level restrictions enacted this year, with many more pending.

With the Supreme Court ruling likely to come next year — less than six months before midterm elections that will determine control of Congress and the future of President Biden’s agenda — the court’s expanded conservative majority has injected new volatility into an already turbulent political atmosphere, leaving both parties to game out the potential consequences.

Republicans had already shown that they intended to take aim at Democrats over social issues, and abortion will only amplify the culture wars.

Nearly all agree that the latest fight over Roe, which has been building for years, is certain to have significant political repercussions. Conservative voters are traditionally more energized than liberals about the abortion debate, and for many of them it has been the single issue spurring voter turnout.

But Democrats, likely to be on the defensive given their current hold on the White House and Congress, say a ruling broadly restricting abortion rights by a court whose ideological makeup has been altered by three Trump-era appointees could backfire on Republicans and galvanize women.

ny times logoNew York Times, Opinion: The Free Ride May Soon Be Over for Anti-Abortion Politicians, Linda Greenhouse (shown at right on the cover of her memoir), May 20, 2021. Do I think the court will use this case to permit states to ban abortion entirely? No, not directly and not this soon; there’s no need for the new majority, handpicked for that very purpose, to go that far this fast. The question the court linda greenhouse cover just a journalisthas agreed to answer, as framed by the state’s petition, “Whether all previability prohibitions on elective abortions are unconstitutional,” suggests but doesn’t require an all-or-nothing response.

However, as President Biden might say, here’s the deal: Viability has been the essential firewall protecting the right to abortion. As the law of abortion currently stands, states can require onerous waiting periods, misleading “informed consent” scripts, needless ultrasound exams — anything to make abortion as burdensome, expensive and stigmatizing as possible.

But what a state can’t do at the end of the day is actually prevent a woman with the resources and will to get to one of the diminishing number of providers (the clinic that sued to block the Mississippi law is the only one in that state) from terminating her pregnancy.

Once the viability firewall is breached, it’s hard to see what limiting principle the new majority might invoke even if so inclined. Ninety percent of abortions take place in the first 13 weeks of pregnancy. What’s the difference between 15 weeks and 13, or 11, or 10? Mississippi offers as a limiting principle the claim that at 15 weeks a fetus is “likely capable of conscious pain perception.” But as a compilation of peer-reviewed medical articles published in 2015 by FactCheck.org concluded, scientific evidence is lacking even for the more common assertion that fetuses are capable of feeling pain at 20 weeks.

Limiting principles usually matter a great deal at the Supreme Court, and it’s common during oral argument for justices to demand that lawyers articulate one. The justices need to know: “If we buy what you’re trying to sell us, exactly what are we buying? What’s the next case in line after yours?”

On Wednesday, Gov. Greg Abbott of Texas signed a “heartbeat” bill that bans abortion as early as six weeks’ gestation. Not to be outdone, voters in Lubbock, Texas, population 260,000, earlier this month declared the city an abortion-free zone, leading Planned Parenthood, which operates the city’s sole abortion clinic within 300 miles, to file a lawsuit to stop the ordinance from going into effect.

Compared to those measures, Mississippi’s 15-week ban may look almost moderate, and a Supreme Court decision upholding only the Mississippi law may be greeted in some prochoice corners with relief. That would reflect a serious misunderstanding.

If there is any good news to salvage from the court’s announcement this week, it is this: the free ride that anti-abortion politicians have enjoyed may be coming to a crashing end.

Ever since the 2010 election ushered new Republican majorities into state legislatures, politicians there have been able to impose increasingly severe abortion restrictions without consequence, knowing that the lower courts would enjoin the laws before they took effect and save the people’s representatives from having to own their actions.

Last fall, in each of four nationwide polls, including one conducted for Fox News, more than 60 percent of registered or likely voters said they did not want the Supreme Court to overturn “Roe v. Wade.” I put the case in quotes because that’s how the pollsters asked the question; although Roe obviously carries strong symbolic meaning, the 1973 decision is in many respects no longer the law.

For the cynical game they have played with those lives, politicians have not paid a price. Now perhaps they will. Of course, women themselves will pay a heavy price as this new reality sorts itself out, particularly women with low incomes who now make up the majority of abortion patients.

And there’s another price to be paid as justices in the new majority turn to the mission they were selected for. The currency isn’t votes, but something even more important and harder to win back: the institutional legitimacy of the Supreme Court of the United States.

There’s no free ride for the court either.

May 17

washington post logoWashington Post, Justices to review law that advocates see as path to diminish Roe v. Wade, Robert Barnes, May 17, 2021. The Mississippi law would ban almost all abortions after 15 weeks, but a district judge and a panel of the U.S. Court of Appeals for the 5th Circuit said that clashes with Supreme Court precedents.

The Supreme Court on Monday said it will review a restrictive Mississippi abortion law that opponents of the procedure say provides a clear path to diminish Roe v. Wade’s establishment of the right of women to choose an abortion.

Abortion opponents for months have urged the court’s conservatives to seize the chance to reexamine the 1973 precedent. Mississippi is one among many Republican-led states that have passed restrictions that conflict with the court’s precedents protecting a woman’s right to choose before fetal viability.

In accepting the case, the court said it would examine whether “all pre-viability prohibitions on elective abortions are unconstitutional.” That has been a key component of the court’s jurisprudence.

The Mississippi law would ban almost all abortions after 15 weeks of pregnancy. But both a district judge and a panel of the U.S. Court of Appeals for the 5th Circuit said that could not be squared with decades of Supreme Court precedents.

May 6

ny times logoNew York Times, Opinion: Will the Supreme Court Write Guantánamo’s Final Chapter? Linda Greenhouse (shown at right on the cover of her memoir), May 6, 2021. The Guantánamo story may finally linda greenhouse cover just a journalistbe coming to an end, and as the 20th anniversary of the 9/11 attacks approaches, the question is who will write the last chapter, the White House or the Supreme Court?

President Biden has vowed to close the island detention center, through which nearly 800 detainees have passed since it opened in early 2002 to house some of the “worst of the worst,” in the words of the Pentagon at the time. Many of the detainees turned out to be junior jihadists, if that; bounty hunters in Afghanistan had turned over to the eager Americans pretty much anyone they could find, including a hapless group of 17 Uyghurs who were fleeing the Chinese and meant the United States no harm. The inmate count is now down to 40.

President Barack Obama also wanted to close Guantánamo but couldn’t manage to do it. Circumstances are different now: Not only is the “forever war” in Afghanistan about to end, but politicians won’t find it easy to scare voters with images of the older, wobbly detainees who now make up much of the Guantánamo population. Still, Mr. Biden is likely to need cooperation from Congress to transfer any of the facility’s detainees to the U.S. mainland.

President Biden may get lucky. But in the meantime, a case is on a path to the Supreme Court that will give the justices a chance to redeem the court’s own failed Guantánamo promises.

May 4

 

Attorney Gen. William Barr, center, announces his version of the findings of Special Counsel Robert Mueller, flanked by aides Rod Rosenstein and Edward O'Callaghan (C-SPAN photo).

 Attorney Gen. William Barr, center, announces his version of the findings of Special Counsel Robert Mueller in 2019, flanked by aides Rod Rosenstein and Edward O'Callaghan, while keeping the text of the Mueller Report largely secret for weeks while news coverage focused on the Barr verbal version, supplemented by his written excerpts (C-SPAN photo).

ny times logoNew York Times, Judge Says Barr Misled on How His Justice Dept. Viewed Trump’s Actions, Michael S. Schmidt, May 4, 2021. Judge Amy Berman Jackson said in a ruling that the misleading statements were similar to others that William P. Barr, the former attorney general, had made about the Mueller investigation.

A federal judge in Washington accused the Justice Department under Attorney General William P. Barr of misleading her and Congress about advice he had received from top department officials on whether President Donald J. Trump should have been charged with obstructing the Russia investigation and ordered that a related memo be released.

Judge Amy Berman Jackson, shown in a file photo, of the United States District Court in Washington said in a ruling late Monday that the Justice Department’s obfuscation appeared to be part of a pattern in which top amy berman jacksonofficials like Mr. Barr were untruthful to Congress and the public about the investigation.

The department had argued that the memo was exempt from public records laws because it consisted of private advice from lawyers whom Mr. Barr had relied on to make the call on prosecuting Mr. Trump. But Judge Jackson ruled that it contained strategic advice, and that Mr. Barr and his aides already understood what his decision would be.

Justice Department log circular“The fact that he would not be prosecuted was a given,” Judge Jackson wrote of Mr. Trump.

She also singled out Mr. Barr for how he had spun the investigation’s findings in a letter summarizing the 448-page report before it was released, which allowed Mr. Trump to claim he had been exonerated.

“The attorney general’s characterization of what he’d hardly had time to skim, much less study closely, prompted an immediate reaction, as politicians and pundits took to their microphones and Twitter feeds to decry what they feared was an attempt to hide the ball,” Judge Jackson wrote.

Her rebuke shed new light on Mr. Barr’s decision not to prosecute Mr. Trump. She also wrote that although the department portrayed the advice memo as a legal document protected by attorney-client privilege, it was done in concert with Mr. Barr’s publicly released summary, “written by the very same people at the very same time.”

A spokeswoman for Mr. Barr did not return an email seeking comment. A Justice Department spokesman declined to comment.

Judge Jackson said that the government had until May 17 to decide whether it planned to appeal her ruling, a decision that will be made by a Justice Department run by Biden appointees.

The ruling came in a lawsuit by a government watchdog group, Citizens for Responsibility and Ethics in Washington, asking that the Justice Department be ordered to turn over a range of documents related to how top law enforcement officials cleared Mr. Trump of wrongdoing.

At issue is how Mr. Barr handled the end of the Mueller investigation and the release of its findings to the public. In March 2019, the office of the special counsel overseeing the inquiry, Robert S. Mueller III, delivered its report to the Justice Department. In a highly unusual decision, Mr. Mueller declined to make a determination about whether Mr. Trump had illegally obstructed justice.

 washington post logoWashington Post, Supreme Court declines to revisit precedent that restricts lawsuits from service members, Robert Barnes, May 4, 2021 (print ed.). Justice Clarence Thomas said the court should have granted a former West Point cadet’s suit over an alleged rape.

The Supreme Court on Monday turned down an attempt by a former West Point cadet to sue the military academy’s leadership over her alleged sexual assault.

It was the latest unsuccessful plea to justices to revisit a 70-year-old court precedent that restricts lawsuits against the government when the alleged injuries arise from military service.

As he has in the past, Justice Clarence Thomas said it was time for the court to take another look at the Feres Doctrine. It comes from a 1950 decision that Thomas said mistakenly expanded a limited exception in the Federal Tort Claims Act concerning combat-related injuries.

May 3

 United Nations

Newsweek, Independent Commission Calls U.S. Police Killing of Blacks 'Crimes Against Humanity,' But Lacks Enforcement Authority, Meghan Roos, May 3, 2021. An independent commission announced its findings on April 27 with the publication of a detailed report that alleges the existence of systemic racism inherent in police violence against Black Americans, which they argue constitutes crimes against humanity.

Although the commission has no enforcement authority, it made specific referrals to the United Nations Human Rights Council (HRC), the International Criminal Court (ICC), the Executive Branch of the U.S. Government and the U.S. Congress, among others.

newsweek logoIn the U.S., the referrals included a call for reparations, action to review and retool existing law enforcement policies, and passage of legislation to hold law enforcement officers accountable when Black individuals die as a result of their encounters with police.

At the international level, the commission called upon the global community to support ICC investigations into systemic racist police violence in the U.S. under Article 7 of the court's Rome Statute, which covers crimes against humanity.

Though nations like Australia, Mexico, South Africa and the United Kingdom are among the Rome Statute's list of 123 signatory countries, the U.S. is not. America's lack of ICC membership means the ICC has significantly less jurisdiction over the U.S. than it does over its member states.

The killing of George Floyd (shown below at left along with his convicted murderer, then Police Officer Derek Chauvin) in May, an event captured on video that went viral, sparked protests across the nation, which inspired calls from relatives of Black Americans who have been victims of similar police conduct to request reviews of the institutions and workplace cultures that allow this violence to fester.

Floyd's death inspired debate at the U.N.'s HRC, which decided in June to create a report assessing how systemic racism and police conduct impacts Black individuals around the world.george floyd derek chauvinBut Floyd's family members and others who pushed for the inquiry had wanted the HRC to focus on those issues specifically in the U.S. In response to the U.N.'s global focus, three organizations—the U.S.-based National Conference of Black Lawyers, the National Lawyers Guild, and the International Association of Democratic Lawyers—came together to launch an independent commission of their own, which was officially named the International Commission of Inquiry on Systemic Racist Police Violence Against People of African Descent in the United States.

The commission's resulting 188-page report was funded by the National Lawyers Guild Foundation.

The commissioners wrote that they believed launching an independent inquiry was necessary because of the way the U.N. backed away from focusing on systemic racism and police conduct in the U.S. The report said the U.N. did so in response to pressure from the U.S. while the country was led by former President Donald Trump.

The commission's resulting 188-page report was funded by the National Lawyers Guild Foundation.

The commissioners wrote that they believed launching an independent inquiry was necessary because of the way the U.N. backed away from focusing on systemic racism and police conduct in the U.S. The report said the U.N. did so in response to pressure from the U.S. while the country was led by former President Donald Trump.

american flag upside down distress"After succumbing to enormous pressure by the U.S. and its allies, the HRC instead directed the Office of the High Commissioner of Human Rights to prepare a report on systemic racism and violations of international human rights by police against Africans and people of African descent throughout the world," the report said.

Jamil Dakwar, the director of the American Civil Liberties Union (ACLU) Human Rights Program, said the U.N.'s decision to pursue an international report "ultimately was watered down" from the initial request for an inquiry with a U.S. focus, which the ACLU supported.

The independent commission's report "really came as a way to further document and press for international accountability that we asked for last summer," Dakwar told Newsweek.

The recommendations serve as a reminder that the U.S. is not a member state of the ICC. The country's relationship with the ICC has fluctuated since the court's early days of existence in the late 1990s, with Democratic presidents tending to support the court's objectives more so than Republican presidents.

Former President Donald Trump struck an unfriendly tone with the ICC while he was in office, going so far as to place sanctions on some ICC officials. Biden rescinded those Trump-era sanctions after taking office in January.

While the U.S. has supported select ICC efforts over the years, the country would need Biden's signature and support from two-thirds of the Senate in order to become an ICC member state. That kind of supermajority is unlikely in a time of heightened political polarization, when the Senate is equally split between Democrats and Republicans.

Though there are some actions the ICC can take involving U.S. citizens, the commission's ICC recommendations carry less weight than they would if the U.S. was in full cooperation with the court.

us senate logoInstead of observing police violence in America from afar, Hinds said the commission decided to "mobilize the international community to hold the United States to account."

"We can provide an objective statement of the reality that experts have shown in terms of the United States government holding itself up to be the bastion of human rights, while the objective evidence states to the contrary," Hinds said.

Though the U.S. isn't a member of the international court, it does have U.N. membership, Hinds pointed out.

"The United States does not want to be condemned before the United Nations, or before the international community," he said.

"After succumbing to enormous pressure by the U.S. and its allies, the HRC instead directed the Office of the High Commissioner of Human Rights to prepare a report on systemic racism and violations of international human rights by police against Africans and people of African descent throughout the world," the report said.

Jamil Dakwar, the director of the American Civil Liberties Union (ACLU) Human Rights Program, said the U.N.'s decision to pursue an international report "ultimately was watered down" from the initial request for an inquiry with a U.S. focus, which the ACLU supported.

The independent commission's report "really came as a way to further document and press for international accountability that we asked for last summer," Dakwar told Newsweek.

He said it is important the public understands that the commission's report is entirely separate from the U.N. inquiry the ACLU joined in requesting, though Tuesday's report reiterates those earlier calls for the U.N. to focus its attention on allegations of racist police conduct in the U.S.

For their report, the 12 commissioners from countries around the world collected testimony from family members and attorneys of 43 Black individuals in the U.S. who were killed during encounters with police and one other Black individual who was paralyzed after he was shot by police.

The commission posits there are two law systems in the U.S., one for Black citizens, one for white citizens.

"Under color of law, Black people are targeted, surveilled, brutalized, maimed and killed by law enforcement officers with impunity, as being Black is itself criminalized and devalued," the report said. "After hearing the testimony and reviewing national data, the Commissioners conclude that both the relevant laws and police practices in the U.S. do not comply with the international human rights obligations of the U.S."

ny times logoNew York Times, Justice Clarence Thomas, Long Silent, Has Turned Talkative, Adam Liptak, May 3, 2021. The Supreme Court’s orderly telephone arguments, prompted by the pandemic, have given the public a revealing look at its longest-serving member.

clarence thomas HRJustice Clarence Thomas, right, who once went a decade without asking a question from the Supreme Court bench, is about to complete a term in which he was an active participant in every single argument.

Justice Thomas’s switch from monkish silence to gregarious engagement is a byproduct of the pandemic, during which the court has heard arguments by telephone. The justices now ask questions one at a time, in order of seniority.

Justice Thomas, who joined the court in 1991, goes second, right after Chief Justice John G. Roberts Jr., asking probing questions in his distinctive baritone.

“It’s been a lemonade out of lemons situation,” said Helgi C. Walker, a lawyer with Gibson, Dunn & Crutcher who served as a law clerk to the justice. “I’m just thrilled that more people get to hear the Justice Thomas that we all know.”

 

April 2021 Update

April 29

ny times logoNew York Times, A Sharp Divide at the Supreme Court Over a One-Letter Word, Adam Liptak,  April 29, 2021. In an immigration ruling that scrambled the usual alliances, the justices differed over the significance of the article “a.”

The Supreme Court on Thursday ruled that the government must comply strictly with a requirement that immigrants receive detailed notices about their deportation hearings.

The 6-to-3 decision featured unusual alliances, with the three conservative justices most committed to interpreting statutes according to their plain words — Justices Clarence Thomas, Neil M. Gorsuch and Amy Coney Barrett — joining the court’s three-member liberal wing to form a majority.

The case concerned a 1996 federal law that allows immigrants subject to deportation to apply to stay in the country if they meet various criteria, including that they had been continuously present for at least 10 years. The law stops that time from accruing once immigrants receive “a notice to appear” for a deportation hearing listing various kinds of information, including the nature of the proceeding and when and where it will take place.

The question in the case was whether the government had to provide all of the information at once or could do so piecemeal. Justice Gorsuch, writing for the majority, said the statute’s use of the article “a” in “a notice to appear” was crucial.

April 27

washington post logoWashington Post, Supreme Court to consider Guantánamo Bay terrorism suspect’s request to learn more about his CIA-sponsored torture, Robert Barnes, April 27, 2021 (print ed.). The prisoner is Abu Zubaida, once a prized capture whose torture after the 9/11 terrorist attacks has been extensively documented. But the government has invoked the “state secrets” privilege to oppose his efforts CIA Logofor additional information about foreign intelligence officials who partnered with the CIA in detention facilities abroad.

The government already has declassified vast amounts of information about Abu Zubaida, whose birth name is Zayn al-Abidin Muhammed Hussein and whose closeness to Osama bin Laden, the deceased founder of al-Qaeda, is now questioned.

But he and his attorney have asked for more disclosure and to question two CIA contractors, James Mitchell and John Jessen, about the interrogations. Abu Zubaida wants the information because he has intervened, through his attorneys, in a Polish investigation of the CIA’s conduct in that country, where he was once held.

His request was opposed by then-CIA director Mike Pompeo, who said the disclosure “reasonably could be expected to cause serious, and in many instances, exceptionally grave damage to U.S. national security.”

Justice Department log circular

ABC News / KTRK-TV (Houston), International panel call on lawmakers to dismantle police, Cory McGinnis, April 27, 2021. Traffic stops and excessive use of force against Black people are being reported as "common precursors" to police killings, a new report shows.

On Tuesday, the International Commission of Inquiry on Systemic Racist Police Violence in the United States released its final report of its investigations into police violence across the country.

The commission selected 44 cases of police violence from 33 different cities, including Houston. The panel met via Zoom after weeks of live hearings involving cases of Black people killed by police as well as months of review of relevant documents.

The commission found that traffic stops are a common precursor to police killings and uses of excessive force against Black people. They also found a pattern of police destructing or manipulating evidence in cases of involving people of color.

"The only weapon that they had was the color of their skin," said a panel member.

Commissioners also mentioned how these patterns of violence and mistreatment ultimately breaks up Black families and Black communities.

The guest speakers featured on the Zoom call included families touched by police violence, including the mother of Eric Garner and the brother of George Floyd. The commissioners are now calling on lawmakers and President Joe Biden to step in. Visit the group's website for the full list of the committee's findings. 

washington post logoWashington Post, When communities try to hold police accountable, law enforcement fights back, Nicole Dungca and Jenn Abelson, April 27, 2021. Attempts by civilian oversight groups to hold law enforcement officials accountable are often an exercise in failure and frustration. Police say citizens are well-meaning but ill-equipped to judge officers.

The struggle in New Mexico’s largest city illustrates the challenge of asking civilians to check police powers. Police nationwide have frequently defied efforts to impose civilian oversight and, in turn, undermined the ability of communities to hold law enforcement accountable, according to a Washington Post review of audits, misconduct complaints, emails, lawsuits and interviews with dozens of current and former officials.

More than 160 municipalities and counties have implemented some form of civilian oversight through review boards, inspectors general and independent monitors. Another 130 localities are trying to do so, according to officials from the National Association for Civilian Oversight of Law Enforcement, or NACOLE, though this represents a fraction of roughly 18,000 law enforcement agencies nationwide.

The issue has gained new traction as part of the push to overhaul policing in the United States after the killings of Breonna Taylor and George Floyd, both unarmed and Black. Their deaths last year sparked massive demonstrations and reignited long-held skepticism about law enforcement’s treatment of Black people and its tolerance for misconduct.

David and Leila Centner identify themselves as “health freedom advocates,” and their school has posted guidance to help parents file for exemptions to state-required vaccinations. In late January, they invited Robert F. Kennedy Jr., a prominent anti-vaccine advocate, to speak at the school.

Daily Beast, Secret Court Reveals: FBI Hunted for Domestic Terrorists Without a Warrant, Spencer Ackerman, April 27, 2021. A secret court warned the FBI in 2018 about warrantless searches. But the bureau still went looking for “racially motivated violent extremists” in NSA troves without a court order.

daily beast logoThe FBI, without any court order, sifted through the National Security Agency’s massive troves of foreign communications for information on American “racially motivated violent extremists,” a newly declassified order from the secret surveillance court details.

Even though the Foreign Intelligence Surveillance (FISA) Court warned the FBI in 2018 that its warrant-free queries, known as backdoor searches, were constitutionally alarming, the bureau still conducted queries relevant to criminal investigations about, among other things “domestic terrorism involving racially motivated violent extremists.” The court’s Judge James E. Boasberg found what he referred to as “apparent widespread violations of the querying standard.”

FBI logoThat’s the euphemistic term the bureau tends to use to denote white supremacist violence. On one occasion, an FBI analyst ran a multi-search-term “batch query” on Americans “in connection with predicated criminal investigations relating to domestic terrorism” that returned 33 foreign surveillance results.

“The FBI continues to perform warrantless searches through the NSA’s most sensitive databases for routine criminal investigations.”

And not only domestic terror. The FISA Court recounts government acknowledgment that at least 40 FBI searches through the NSA’s warrantlessly collected data involved “health care fraud, transnational organized crime, violent gangs” and “public corruption and bribery.”

On at least one occasion, around May 2020, an FBI analyst looked through the foreign NSA troves “to vet [a] potential source in [a] predicated criminal investigation relating to public corruption.” Seven FBI field offices were implicated in “these and a number of similar violations,” according to a November 18, 2020 FISA Court opinion declassified on Monday and signed by Boasberg.

In other words, the FBI continues to perform warrantless searches through the NSA’s most sensitive databases—the ones the NSA is not required to get warrants before filling with communications information—for routine criminal investigations that are supposed to require warrants.Mother Jones, Investigation: In Sworn Testimony in Inauguration Scandal Case, Donald Trump Jr. Made Apparently False Statements, David Corn, April 27, 2021 (3:16 min. video). On February 11, Donald Trump Jr. sat in front of his computer for a video deposition. He swore to tell the truth. But documents and a video obtained by Mother Jones—and recent legal filings—indicate that his testimony on key points was not accurate.

The matter at hand was a lawsuit filed in 2020 against Donald Trump’s inauguration committee and the Trump Organization by Karl Racine, the attorney general of Washington, DC. The suit claims that the inauguration committee misused charitable funds to enrich the Trump family.

As the attorney general put it, the lawsuit “alleges that the Inaugural Committee, a nonprofit corporation, coordinated with the Trump family to grossly overpay for event space in the Trump International Hotel. Although the Inaugural Committee was aware that it was paying far above market rate