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Archive for the ‘Trump administration’ Category

Some progress in government programs

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Heather Cox Richardson writes:

Yesterday the U.S. Department of Agriculture announced a $1.3 billion program to give debt relief to struggling farmers with qualifying USDA farm loans. Already, more than 13,000 farm borrowers have received about $800 million in assistance with the goal of creating long-term stability to keep them in the profession while also transforming USDA loan servicing. The program, which has access to $3.1 billion from the Inflation Reduction Act, will ultimately help about 36,000 borrowers. The average amount of relief for direct loan borrowers was $52,000, while for those with guaranteed loans the average was about $172,000.

“Through no fault of their own, our nation’s farmers and ranchers have faced incredibly tough circumstances over the last few years,” Agriculture Secretary Tom Vilsack said. “The funding included in today’s announcement helps keep our farmers farming and provides a fresh start for producers in challenging positions.”

Republicans who have complained about debt relief for college loan borrowers did not respond to questions from David Pitt of the Associated Press about whether they support help for farm loan borrowers.

The Department of Justice announced today that the Antitrust Division is enforcing our antitrust laws, and that seven directors of corporate boards recently resigned when the DOJ expressed concern that they were violating the prohibition on directors and officers serving simultaneously on the boards of competitors. Congress outlawed this practice under Section 8 of the Clayton Antitrust Act of 1914, Assistant Attorney General Jonathan Kanter explained, because it “further concentrates power and creates the opportunity to exchange competitively sensitive information and facilitate coordination—all to the detriment of the economy and the American public.”

“Companies, officers, and board members should expect that enforcement of Section 8 will continue to be a priority for the Antitrust Division,” the DOJ said in a statement, and it urged anyone with information about other interlocking directorates “or any other potential violations of the antitrust laws” to contact the DOJ.

Help for farmers and enforcement of antitrust legislation—including permitting those in danger of running afoul of the law to resign before launching legal action—feels much like the reforms of the Progressive Era, when leaders like Theodore Roosevelt tried to claw back a government that worked for industrialists.

That use of the government to restore a level playing field stands in contrast to the news coming from the Republicans. Big news came today from U.S. District Court Judge David O. Carter for the Central District of California, who has been overseeing the fight between Trump lawyer John Eastman and the House Select Committee to Investigate the January 6th Attack on the U.S. Capitol. Eastman was the author of the memo outlining a plan for stealing the 2020 election. The January 6th committee subpoenaed Eastman’s emails, but Eastman tried to shield a number of them, arguing that they fell under attorney-client privilege.

After reviewing the emails, Carter ruled some of them must be made public because of the “crime-fraud exception,” meaning that they are not privileged because they appear to reveal a crime. Four documents show how the Trump team’s primary goal in filing lawsuits was not to obtain relief, but rather “to delay or otherwise disrupt the January 6 vote.” Those documents, then, further the crime of obstruction.

Crucially, one of the documents concerns . . .

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Written by Leisureguy

20 October 2022 at 12:21 pm

The Conservative Stalwart Challenging the Far-Right Legal Theory That Could Subvert American Democracy

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In the New Yorker, Jane Mayer writes of an effort to preserve democracy in the US. Her article (no paywall) begins:

A powerful new litigant has joined one of the most momentous cases slated to be heard by the Supreme Court this term. The respondents in the case of Moore v. Harper filed a brief today that included a surprising new signatory: J. Michael Luttig, who has been known for years as perhaps the most conservative Republican judge in the country. Now, though, he has joined a coalition of veteran lawyers and nonpartisan government-watchdog groups who are fighting against a far-right Republican election-law challenge—one so radical that critics say it has the potential to end American democracy as we know it.

The former judge is a surprising co-counsel to Neal Katyal, the well-known Supreme Court litigator. Katyal is a counsel of record in the case for several respondents, including Common Cause and the North Carolina League of Conservation Voters, that are opposing the far-right groups. The case is scheduled to be heard by the Court on December 7th. Luttig told me that he signed on as Katyal’s co-counsel because he regards Moore v. Harper as “without question the most significant case in the history of our nation for American democracy.” Putting it more colloquially, he said, “Legally, it’s the whole ballgame.”

Having such a well-known conservative former jurist argue against the election-law challenge may carry some weight with the conservative super-majority on the Court, several of whom have ties to Luttig that stretch back decades. Justice Clarence Thomas, for instance, was personally shepherded through his contentious Supreme Court confirmation hearings by Luttig in 1991. At the time, Luttig served as the Assistant Attorney General in charge of the Office of Legal Counsel in George H. W. Bush’s Justice Department. After Thomas was confirmed, Luttig himself was sworn in to a seat on the U.S. Court of Appeals for the Fourth Circuit at the age of thirty-seven; he became, at that moment, the youngest federal appellate judge in the country.

Luttig’s ties to Chief Justice John Roberts also go back years. The two worked closely together in the Reagan Administration as young lawyers, both under the tutelage of then White House counsel Fred Fielding, and again together as lawyers in the George H. W. Bush Department of Justice. Later, in 2005, George W. Bush considered them simultaneously for a seat on the Supreme Court, which ultimately went to Roberts. The following month, Bush again considered Luttig for a Supreme Court seat but chose Samuel Alito. After establishing a reputation as a hard-right standard-bearer in the mold of the late Antonin Scalia on the appeals court, Luttig became the general counsel of Boeing; in 2020, he retired.

The evolution of Luttig’s political role since then has been remarkable. While some might assume that he has abandoned his conservative views, his position is more of a reflection of the radical changes that have overtaken the Republican Party. A judge who once represented the far-right pole in jurisprudence now looks like a throwback to an earlier age of G.O.P. probity and restraint. Ordinarily, Luttig told me, he wouldn’t get involved in a case like this. But Moore v. Harper, he explained, is the natural outgrowth of the extraordinary behind-the-scenes role he played in the final Götterdämmerung days of the Trump Presidency.

On the evening of January 4, 2021, Luttig was asked to weigh in as an emergency outside legal expert to Vice-President Mike Pence, whom Trump was pressuring not to certify Biden’s Electoral College victory. Luttig emphatically advised the Pence team that the Vice-President had no choice. The Constitution clearly stated that the Vice-President’s only role was ceremonial. Luttig stressed that Pence had to certify the 2020 Electoral College vote, in defiance of Trump’s attempted coup. But, in the early morning of January 5th, as the pressure from Trump continued to rise, Pence’s advisers contacted Luttig. They told him, while he was holed up in his vacation home in Colorado, that he needed to share with the American public his view that, under the Constitution, Pence had to certify Biden’s Electoral College win.

A retired sixty-six-year-old lawyer stuck in Colorado at the time, Luttig recalled telling Pence’s lawyer, “I don’t even have a job right now. I’m unemployed. . . . I don’t have a fax machine.” Eventually, Luttig decided he would tweet, but he told me he had no idea how to do so. He called his son, who works in tech, but he was too busy to explain, so he sent him Twitter’s online instructions. Luttig’s tweet, when it finally posted, was published on the Times Web site, and later quoted by Pence in his letter to Congress on January 6th, leading to the historic standoff between the President and Vice-President. Luttig’s role was crucial because of his unique standing. The lawyer who had improperly advised Trump that Pence had the legal power to delay, and perhaps overturn, the election, was one of Luttig’s own former law clerks: John Eastman. Eastman’s rogue legal theory was based, in part, on a fringe-right reading of the Constitution called the independent-state-legislature theory. Its proponents, including Eastman, claimed that state legislatures had the authority to reject the results of the 2020 election that were certified by other state officials and the courts. It wasn’t lost on those involved at the time that the majority of state legislatures were dominated by Trump’s Republican Party.

“The independent-state-legislature theory was the centerpiece of the former President’s effort to overturn the 2020 election,” Luttig told me. “In advising Vice-President Pence on January 6th, I concluded that there was no such doctrine of constitutional interpretation.” Luttig added,  . . .

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Written by Leisureguy

20 October 2022 at 10:08 am

How Ticketmaster Destroyed Live Music

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Clinton and Obama gave away the store to monopolies, and we are suffering the consequences of their lack of action. Biden seems so far much more aggressive, but there is much ground that must be regained — and of course, Republicans will defend monopolies strongly and attempt to block and undercut effective government action against monopolies. Thus neither the George W. Bush administration nor the Trump administration took any action against monopolies

The depth of the damage and corruption due to Donald Trump and his enablers is coming to light

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Heather Cox Richardson provides a brief summary of what is emerging from the various investigations into what the Trump administration did:

Today the Biden administration opened the website to apply for relief from student debt, a policy that is expected to benefit 43 million Americans directly and others tangentially as debt relief frees up family resources. The administration also announced that the Food and Drug Administration’s final rule concerning Biden’s Executive Order on Promoting Competition in the American Economy went into effect today, making hearing aids available over the counter and thereby lowering costs for the devices by as much as $3,000 a pair.

The administration has also recently achieved a historic diplomatic victory by brokering an agreement between Israel and Lebanon, two countries that have been formally at war since 1948, to establish a maritime boundary.

But all that news got drowned out by the continuing drama coming from the Republican Party. As Republican political strategist Sarah Longwell wrote in The Bulwark today, the Republican Party is facing an “extinction event,” having been taken over by former president Trump to become the right-wing MAGA Party. As Longwell wrote, “In the Republican party as it is currently constituted, political power emanates completely and totally from Donald Trump.”

Longwell explains that Republicans have been stuck in a “Triangle of Doom,” in which Republican base voters want their media to confirm their biases. Fringe media outlets confirming those biases gain traction. In order to reach voters, Republican politicians have to go on those fringe outlets, and that, in turn, normalizes fringe media. Over time, this triangle radicalized the party until 70% of Republicans now believe the lie that Democratic president Joe Biden didn’t win the 2020 election.

“Say goodnight,” she writes. “The party’s over.” All but the MAGA Republicans have left. “The Good Republicans are gone,” Longwell writes. “Probably for good.”

Today, Fox Nation began a mock trial of Hunter Biden, with reality TV personality Judge Joe Brown saying that “something’s way wrong here, way wrong,” and suggesting that the legal investigations into Trump and the lack of them into the Bidens give the appearance that Trump and Biden “don’t live in the same country.”

Hunter Biden is not in the government, of course, and is not under indictment; Trump and the Trump Organization are embroiled in a number of lawsuits that suggest the former president and his associates saw government service not as a way to improve American lives but as a way to make money. Ginning up a show trial for Hunter Biden seems an attempt to rile up the base and undercut the many legal issues in the news concerning the former president. But such a show trial is also a fundamental rejection of the rule of law, suggesting that the law is simply a political tool to use against enemies rather than a body of laws before which we are all treated equally.

There is a reason Trump supporters are trying to undermine the rule of law. In New York, Trump’s wealthy friend and financial backer Thomas Barrack is on trial for selling his access to Trump to the leaders of the United Arab Emirates in exchange for investment money. The U.S. government says that Barrack fed confidential information to UAE leaders while permitting them to shape Trump’s speeches and policies. In the first three years of Trump’s term, Saudi Arabia and the UAE invested about $1.5 billion in Barrack’s real estate company.

In Northern Virginia the trial of Igor Danchenko for making false statements to the FBI, led by John Durham and other holdovers from the Trump Justice Department, suggests the Trump administration played fast and loose with national security in an attempt to undermine the Russia investigation. Witnesses in the trial have testified that  . . .

Continue reading. There’s more.

Written by Leisureguy

18 October 2022 at 3:58 am

Republicans becoming more explicit about their outlook and plans

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Heather Cox Richardson:

Last Thursday, October 6, the Republican members of the House Judiciary Committee tweeted: “Kanye. Elon. Trump.”

On Sunday, October 10, after his Instagram account was restricted for antisemitism, rapper Kanye West, now known as “Ye,” returned to Twitter from a hiatus that had lasted since the 2020 elections to tweet that he was “going death con 3 On JEWISH PEOPLE.” This was an apparent reference to the U.S. military’s “DEFCON 3,” an increase in force readiness.

Today, Ian Bremmer of the political consulting firm the Eurasia Group reported that billionaire Elon Musk spoke directly with Russian president Vladimir Putin before Musk last week proposed ending Russia’s attack on Ukraine by essentially starting from a point that gave Putin everything he wanted, including Crimea and Russian annexation of the four regions of Donetsk, Kherson, Luhansk, and Zaporizhzhia, as well as Ukraine’s permanent neutrality. This afternoon, Musk denied the story; Bremmer stood by it.

On Sunday, at a rally in Arizona, Trump claimed that President George H.W. Bush had taken “millions and millions” of documents from his presidency “to a former bowling alley pieced together with what was then an old and broken Chinese restaurant…. There was no security.” (In fact, the National Archives and Records Administration put documents in secure temporary storage at a facility that had been rebuilt, according to NARA, with “strict archival and security standards, and…managed and staffed exclusively by NARA employees.”)

Then Trump went on to accuse NARA of planting documents—his lawyers have refused to make that accusation in court—and, considering his habit of frontloading confessions, made an interesting accusation: “[The Archives] lose documents, they plant documents. ‘Let’s see, is there a book on nuclear destruction or the building of a nuclear weapon cheaply? Let’s put that book in with Trump.’ No, they plant documents.”

Antisemitism, Putin’s demands in Ukraine, and stolen documents seem like an odd collection of things for the Republican members of the House Judiciary Committee, which oversees the administration of justice in the United States, to endorse before November’s midterm elections.

But in these last few weeks before the midterms, the Republican Party is demonstrating that it has fallen under the sway of its extremist wing, exemplified by those like Representative Marjorie Taylor Greene (R-GA), who tweeted last week that “Biden is Hitler.”

Senator Tommy Tuberville (R-AL) this weekend told an audience that Democrats are in favor of “reparation” because they are “pro-crime.” “They want crime,” Tuberville said. “They want crime because they want to take over what you got. They want to control what you have,” Tuberville told the cheering crowd in an echo of the argument of white supremacists during Reconstruction. “They want reparation because they think the people that do the crime are owed that. Bullsh*t. They are not owed that.”

On October 6, New Hampshire Senate nominee Don Bolduc defended the overturning of Roe v. Wade and the subsequent loss of recognition of the constitutional right to abortion. The issue of abortion “belongs to the state,” he said. “It belongs to these gentlemen right here, who are state legislators representing you. That is the best way I think, as a man, that women get the best voice.” Republican super PACs are pouring money behind Bolduc.

Even those party members still trying to govern rather than play to racism, sexism, and antisemitism are pushing their hard-right agenda.

Senate Republicans have introduced a bill to get rid of  . . .

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Written by Leisureguy

11 October 2022 at 8:22 pm

Where Are They Now? Trump Administration Edition.

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I’ve observed that many who have an ample amount of money are willing to do almost anything for more. Megan K. Slack reports on some of them in the NY Tiimes (no paywall):

America, you have probably heard, is on the edge of collapse. In the ideological death match described by President Biden as a “battle for the soul of this nation,” the forces of MAGA square off against the self-declared Resistance. One side will conquer; the other will be crushed.

Given these doomsday politics, it may surprise you to learn that some of the most glorified and vilified characters of these tumultuous years have quietly forged a peace — working together to ensure the world’s wealthiest and most powerful players thrive amid the turmoil.

The “government matters” practice at the law firm of King & Spalding is a telling example.

On this team you will find Gina Haspel, whose supervision of torture at a secret C.I.A. detention site proved no obstacle to her becoming the agency’s director under Donald Trump nor to her eventual recruitment by corporate law. (While she is not a lawyer, the firm has hired her as a senior adviser on national security.)

Ms. Haspel has joined forces with Sally Yates, who was enshrined as a paragon of principle when Mr. Trump fired her as acting attorney general for rejecting his notorious “Muslim ban.” The pairing of the spy chief nicknamed “Bloody Gina” by some C.I.A. colleagues with a breakout star of the #Resistance was peculiar enough, but consider that Ms. Yates’s eventual successor as deputy attorney general, Rod Rosenstein, is also on the King & Spalding team.

It was Mr. Rosenstein who enforced the Trump administration’s zero-tolerance policy, telling prosecutors that migrant children’s ages should not exempt their parents from prosecution. Infants were yanked from the arms of their parents at the southern border in a separation policy that one human rights group called torture and that even Mr. Rosenstein eventually denounced.

How to explain this convergence?

“At the end of the day, elites take care of other elites, with very few exceptions,” said Christopher Sprigman, a former partner at King & Spalding who now teaches at the New York University School of Law. When it comes to family separation, he said: “Those kids are water under the bridge. There’s money to be made.”

Mr. Sprigman was deeply troubled by his former firm’s decision to hire Mr. Rosenstein, who he feels “took part in a crime” by snatching children from their parents. “I called some friends at King & Spalding and I was like, ‘Are you serious? Is this who you’re hiring?’” Mr. Sprigman recalled. “I had a phone call with current firm leadership and they were like, ‘Noted.’ They couldn’t care less.”

None of this is particularly remarkable here in Washington, where . . .

Continue reading. (no paywall)

The complete absence of principles is striking.

Written by Leisureguy

6 October 2022 at 4:20 pm

What Russian trolls can tell us about the US

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Anand Giridharadas writes in the Atlantic (no paywall):

n june 2014, Aleksandra Krylova and Anna Bogacheva arrived in the United States on a clandestine mission. Krylova was a high-ranking official at the Internet Research Agency in St. Petersburg, Russia, an ostensibly private company that was connected with Russian intelligence. Bogacheva, her road buddy, a researcher and data cruncher, was more junior. Their trip had been well plotted: a transcontinental itinerary, SIM cards, burner phones, cameras, visas obtained under the pretense of personal travel, and, just in case, evacuation plans.

The women made stops in California, Colorado, Illinois, Louisiana, Michigan, Nevada, New Mexico, New York, and Texas, according to a federal indictment issued years later. Beyond that, their activities are not well known. Their mission, however, is now public knowledge: to gather evidence of conditions in the United States for a project to destabilize its political system and society, using the rather improbable weapon of millions of social-media posts.

In their long conflict with the United States, officials in Russia have many tools of sabotage available to them. But the major investment in the social-media project seemed to reflect a calculation that, of all the vulnerabilities of modern American society, its internal fracturing—countryside against city, niece against uncle, Black against white—was a particular weakness.

Russia’s Internet Research Agency, or IRA, had been founded in 2013 as an industrial troll farm, where workers were paid to write blog posts, comments on news sites, and social-media messages. Late that summer, a job posting appeared online. “Internet operators wanted!” it read, according to the newspaper Novaya Gazeta. “Task: posting comments at profile sites on the Internet, writing thematic posts, blogs, social networks.” Plus: “PAYMENTS EVERY WEEK AND FREE MEALS!!!”

Hundreds of workers toiled in 12-hour shifts at the IRA offices on 55 Savushkina Street. Each had to manage multiple fake accounts and produce message after message—reportedly three posts a day per account if Facebook was their medium, or 50 on Twitter. Managers issued detailed instructions about content and obsessed over page views, likes, and retweets.

In the years ahead, the agency would write more than 6 million tweets, and its posts would attract 76 million engagements on Facebook and 183 million on Instagram. Some posts were outright disinformation; others sought to whip up anger at the truth. But their common aim was to amplify the worst cultural tendencies of an age of division: writing other people off, assuming they would never change their mind, and viewing those who thought differently as needing to be resisted rather than won over.

When the IRA’s project became public knowledge, a simplistic, if seductive, story line grew up around it. “Yes, Russian Trolls Helped Elect Trump: Social media lies have real-world consequences,” read the headline of a Michelle Goldberg column in The New York Times. Aiding Donald Trump was indeed among the IRA’s objectives, but it wasn’t the mission’s focus. “The story of Russian interference was a really damaging crutch for the imagination,” the Russian American writer Masha Gessen told me not long ago. “It was something that allowed us to think about Trump as somebody from outer space—or at least from Russia—as a kind of alien body, but also an alien body from which we’re somehow miraculously going to be liberated.”

In time, a more sobering analysis emerged. The Russian mission, far from dropping something on America from outer space, had been to fertilize behaviors already flourishing on American soil. “The IRA’s goals are to further widen existing divisions in the American public and decrease our faith and trust in institutions that help maintain a strong democracy,” Darren Linvill and Patrick Warren, scholars at Clemson University who became prominent analysts of Russia’s campaign, have written. “The IRA has used Trump—and many other politicians—as vehicles to further these twin goals, but it is not about Trump himself.” A report by the research firm New Knowledge provided to Senate investigators described similar goals: “to undermine citizens’ trust in government, exploit societal fractures, create distrust in the information environment, blur the lines between reality and fiction, undermine trust among communities, and erode confidence in the democratic process.”

When I began to read the posts myself, I saw even more clearly how the Russians had gone about this work. They had done more than fan the flames of division. They had encouraged the view that the basic activity of democratic life—the changing of minds—had become futile. The troll farm wanted Americans to regard people with different views as immovable, brainwashed, disloyal, repulsive. “The IRA knows that in political warfare disgust is a much more powerful tool than anger,” Linvill and Warren wrote. “Anger drives people to the polls; disgust drives countries apart.”

Americans didn’t need outside help to see one another in these ways. The culture of the write-off, of mutual contempt and dismissal, could be found everywhere you looked. If anything, this attitude was a rare point of commonality across left and right. The ease with which the Russian government exploited these tendencies is frightening, but it also, perhaps, points to a way out: If Americans are so easily manipulated in the direction of enmity and sniping and rage, might they also be more open to persuasion than we tend to assume? If Russian trolls could pull us apart, can we bring ourselves back together? [I am reminded about the nursery rhyme about Humpty Dumpty. – LG]

rystal johnson is an actual person, a real-estate agent in Georgia. I spoke with her once on the phone. When I explained that I was looking into how her identity had been stolen and weaponized by Russian intelligence, she hung up and stopped answering my calls.

Johnson tweeted occasionally under the handle @CrystalSellsLA. Her profile photo shows a Black woman in her 30s or 40s with short blond hair. She’s smiling widely, dressed crisply in a black blazer and a white shirt. She looks like someone you would trust to find you a home. She posted a combination of real-estate insights and inspirational quotations. “Resale homes sales R up,” she wrote back in 2012. “As we learned from the recent bubble that burst, a healthy housing market puts many pairs of hands to work.” On another occasion: “Good morning! There is so much we have to be thankful for.” Even Heracleitus made a cameo: “The content of your character is your choice. Day by day, what you choose, what you think and what you do is who you become.”

In February of that year, a Twitter account with the handle @Crystal1Johnson began to tweet—and it tweeted precisely what @CrystalSellsLA was tweeting. On the first day of 2013, the real Crystal Johnson wished the world Happy New Year—as did her clone. That would be nearly the end of its mimicry, though. The account went silent for two years. And then suddenly it became one of the most influential accounts operated by the IRA’s troll farm.

The second week of December 2015 was tense. Trump, still a relatively new presidential candidate, had proposed “a total and complete shutdown of Muslims entering the United States until our country’s representatives can figure out what the hell is going on.” Political observers started saying that

Continue reading. (no paywall) 

Written by Leisureguy

6 October 2022 at 3:38 pm

The Supreme Court Is Blowing Up Law School, Too

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Mark Joseph Stern has a report in Slate on the collapse of the Supreme Court’s institutional integrity and authority that brings a lot of sadness to those whose hopes for the United States have been dashed. He writes:

Khiara Bridges remembers the exact moment she lost faith in the Supreme Court. At first, at the start of Donald Trump’s presidency, Bridges—a professor who now teaches at UC–Berkeley School of Law—held out hope that the court might be “this great protector of individual civil liberties right when we desperately needed it to be.” Then came 2018. That June, the justices issued Trump v. Hawaii, which upheld the president’s entry ban for citizens of eight countries, six of them Muslim-majority. Suddenly, Bridges told me, she realized, “The court is not going to save us. It is going to let Trump do whatever he wants to do. And it’s going to help him get away with it.”

Four years later, the justices completely shattered whatever remaining optimism Bridges could muster about the court by overruling Roe v. Wade in Dobbs v. Jackson Women’s Health Organization. When the decision came down on June 24, she got a migraine for the first time in a decade. The image of the court as a majestic guardian of liberty was, she concluded, “a complete lie.” And it wasn’t just about her own personal feelings, either: Now she had to teach her students about the work of an institution that made her sick to contemplate.

Bridges is not alone. At law schools across the country, thousands of professors of constitutional law are currently facing a court that, in their view, has let the mask of neutrality fall off completely. Six conservative justices are steering the court head-on into the most controversial debates of the day and consistently siding with the Republican Party. Increasingly, the conservative majority does not even bother to provide any reasoning for its decisions, exploiting the shadow docket to overhaul the law without a word of explanation. The crisis reached its zenith between September 2021 and June 2022, when the Supreme Court let Texas impose its vigilante abortion ban through the shadow docket, then abolished a 50-year-old right to bodily autonomy by overruling Roe v. Wade. Now law professors are faced with a quandary: How—and why—should you teach law to students while the Supreme Court openly changes the meaning of the Constitution to align with the GOP?

A version of this question has long dogged the profession, which has fought over the distinction between law and politics for about as long as it has existed. For decades, however, the court has handed enough victories to both sides of the political spectrum that it has avoided a full-on academic revolt against its legitimacy. That dynamic changed when Trump appointed Justices Brett Kavanaugh and Amy Coney Barrett to replace far less conservative predecessors and created a Republican-appointed supermajority, a coalition further aided by the appointment of Neil Gorsuch to a seat that should have been filled by Barack Obama. The cascade of far-right rulings in 2022 confirmed that the new court is eager to shred long-held precedents it deems too liberal as quickly as possible. The pace and scale of this revolution is requiring law professors to adapt on several levels—intellectually, pedagogically, and emotionally

Like Bridges, Serena Mayeri, a professor at University of Pennsylvania Carey Law School, traces her recent disillusionment to Trump v. Hawaii. The fact that Kavanaugh’s predecessor, Justice Anthony Kennedy, sided with Trump “left me deeply shaken,” Mayeri said. “It was weeks before I could bring myself to read the opinions in full.”

Shortly thereafter, Kennedy announced his retirement, further rattling Mayeri. “I’ve always considered myself a deeply patriotic person,” she said. “My family comes from Eastern Europe and Iran; on both sides I have relatives who took refuge in the U.S. and taught me to see America as a beacon of hope, however flawed our attempts to live up to our ideals.” Mayeri was crossing the border into Canada when the Hawaii decision came down, and she suddenly felt she did not want to return. “For the first time in my life, I didn’t want to go home to my own country, a country I barely recognized.”

Mayeri’s outlook did not improve as the court took a wrecking ball to her areas of expertise, especially reproductive rights. That doesn’t mean she is seriously considering quitting academia. “There have certainly been moments over the past few years when anything other than direct political action felt like rearranging the deck chairs on the Titanic,” she said. “But being a law professor is an incredible privilege, and I love almost every minute of it.”

In the classroom, Mayeri will try to . . .

Continue reading.

“Rearranging the deck chairs on the Titanic” — good phrase. 🙂

Written by Leisureguy

6 October 2022 at 10:18 am

Just how racist is the MAGA movement? This survey measures it.

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Jennifer Rubin has an interesting column (gift link, no paywall) in the Washington Post:

It has long been understood that the MAGA movement is heavily dependent on White grievance and straight-up racism. (Hence Donald Trump’s refusal to disavow racist groups and his statement that there were “very fine people on both sides” in the violent clashes at the white-supremacist rally in Charlottesville.)

Now, we have numbers to prove it.

The connection between racism and the right-wing movement is apparent in a new poll from the Public Religion Research Institute. The survey asked respondents about 11 statements designed to probe views on racism. For example: “White Americans today are not responsible for discrimination against Black people in the past.” The pollsters then used their answers to quantify a “structural racism index,” which provides a general score from zero to 1 measuring a person’s attitudes on “white supremacy and racial inequality, the impact of discrimination on African American economic mobility, the treatment of African Americans in the criminal justice system, general perceptions of race, and whether racism is still significant problem today.” Higher scores indicate a more receptive attitude to racist beliefs.

The results shouldn’t surprise anyone paying attention to the MAGA crowd’s rhetoric and veneration of the Confederacy. “Among all Americans, the median value on the structural racism index is 0.45, near the center of the scale,” the poll found. “The median score on the structural racism index for Republicans is 0.67, compared with 0.45 for independents and 0.27 for Democrats.” Put differently, Republicans are much more likely to buy into the notion that Whites are victims.

The poll also found that the religious group that makes up the core of today’s GOP and MAGA movement has the highest structural racism measure among the demographics it surveyed: “White evangelical Protestants have the highest median score, at 0.64, while Latter-day Saints, white Catholics, and white mainline Protestants each have a median of 0.55. By contrast, religiously unaffiliated white Americans score 0.33.” This is true even though Whites report far less discrimination toward them than racial minorities do.

The survey also captured just how popular the “Lost Cause” to rewrite the history of the Civil War and downplay or ignore the evil of slavery is on the right: “Republicans overwhelmingly back efforts to preserve the legacy of the Confederacy (85%), compared with less than half of independents (46%) and only one in four Democrats (26%). The contrast between white Republicans and white Democrats is stark. Nearly nine in 10 white Republicans (87%), compared with 23% of white Democrats, support efforts to preserve the legacy of the Confederacy.”

Americans who fully support reforming Confederate monuments have a much lower structural racism index score, while those who oppose it have a much higher score. The same is true when it comes to

Continue reading. (gift link, no paywall)

Written by Leisureguy

29 September 2022 at 1:13 pm

Servants of the Damned

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Judd Legum has a very interesting interview at Popular Information. It begins:

I recently finished reading “Servants of the Damned,” a new book by New York Times business investigations editor David Enrich. The book exposes how Jones Day, one of the world’s largest law firms, has used its immense power to enable corporate misconduct and, more recently, the Trump administration. I reached out to Enrich because his book provides essential insights into how corporations, with the help of firms like Jones Day, manipulate the political system. This conversation has been edited for length and clarity. I hope you enjoy it. — Judd

LEGUM: You describe regulatory changes around advertising that facilitated the growth of Jones Day and other law firms into much larger, much more powerful forces. It switched the focus of the firm from being officers of the court to doing whatever it takes to advance corporate interests and maximize firm profits. How much of this do you think is a reflection of Jones Day’s evolution versus Jones Day responding to the demands of the modern corporation?

ENRICH: It’s actually a really easy answer to that question. It’s both. There’s a symbiotic relationship between these law firms and their big corporate clients. It’s not a coincidence that as the global economy globalized and big companies became global, law firms were following suit.

It’s a cycle that kind of reinforces itself, because the more you expand, the more revenue you need to pay for that expansion, which means you need to become more aggressive in pursuing clients and assignments. The bigger you get, and the faster you get bigger, the more pressure there is on your lawyers to swallow the concerns that they might otherwise have had, put morality aside, and really just focus, within the confines of legal ethics and the law, on how far can we push to make as much money as possible as quickly as possible.

LEGUM: One of the through lines of the book I was really interested in is this idea of the law firm and how it chooses its clients. Do the misdeeds of the client reflect on the attorney? The pat answer that Jones Day keeps falling back on is that everyone needs an attorney, even unpopular people.

ENRICH: . . .

Continue reading.

Written by Leisureguy

27 September 2022 at 8:08 pm

Why Bill Barr Turned on Trump

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A very interesting article (no paywall) by Donald Ayer in the Atlantic that explains a lot about Bill Barr and his actions. Ayer served as United States attorney and principal deputy solicitor general in the Reagan administration and as deputy attorney general under George H. W. Bush.

Bill Barr has received approving nods recently for finally publicly turning against his former boss, rejecting Donald Trump’s claims of election fraud in testimony before the January 6 committee and repeatedly condemning on Fox News both Trump’s theft of classified government documents and the bizarre court decision letting a special master consider Trump’s absurd claims. While some have noted that this recent turn does not make up for his gross mishandling of his office over the 22 months he served as attorney general, most people give Barr credit for his recent dalliance with the truth.

Credit for moving the public discussion closer to reality is one thing, but no one should think that Barr is having second thoughts about the awful things he did in office. To the contrary, Barr’s recent trashing of Trump in a manner likely to greatly impair his presidential prospects makes perfect sense when one understands the driving convictions and objectives that have guided him throughout his adult life.

Remember that Barr sought out the opportunity to serve as Trump’s attorney general by submitting a memorandum in June 2018, expanding upon his long-held, breathtaking vision that the Founders created an all-powerful president immune from virtually any limitation on his powers. Those views had occupied Barr’s mind since the 1980s. In the memo, Barr applied that vision to Trump’s then-current obsession, arguing that Special Counsel Robert Mueller’s investigation was a wholly illegitimate intrusion on those powers.

The June 2018 memorandum shows Barr clamoring for Trump’s attention because Trump offered a unique opportunity to advance Barr’s decades-old objective of an autocratic president. Unlike any of Trump’s predecessors in whose administrations he served, and certainly unlike George H. W. Bush, Trump openly espoused the view that he could “do whatever [he] wanted as president.” Turning Trump into Barr’s ideal of the autocratic president required Trump’s reelection in 2020, and Barr aggressively pushed for changes in law that would largely block interference with the president’s actions.

The nature of those changes, and Barr’s determination to pursue them, were carefully spelled out in a major speech delivered to the Federalist Society on November 15, 2019, in which Barr argued that, contrary to “the grammar-school civics-class version” of the Founders’ government as one of checks and balances, the founding generation actually meant for the president to wield essentially unchecked authority.

Barr’s aggressiveness in defending Trump against those who would second-guess his actions is best known in connection with the lies he told about the Mueller report, while keeping the report itself under wraps so people could not see how inaccurate his statements were. His interventions in ongoing cases—including the criminal cases against Roger Stone and Michael Flynn—to substitute outcomes that were politically desirable for the president for those arrived at in routine course based on the facts and the law also drew widespread objections.

But the central goal laid out in the Federalist Society speech was the negation of the system of checks and balances long recognized as an integral part of our government. This included efforts to resist meaningful congressional oversight, up to and including Barr’s own personal refusal to appear on many occasions. It also included arguing vigorously in court to limit the power of the judiciary to review executive-branch actions. Barr’s Justice Department also worked to undermine Congress’s appropriation power, by litigating in support of the president’s right to divert funds for the border wall, which Congress had repeatedly refused to fund. And Barr was also an active participant in actions to remove officials—including U.S. attorneys and inspectors general—who did not dance to the tune that he and Trump were playing.

During 2020, Barr misused his official authority in many ways calculated to help Trump secure reelection. He sent law-enforcement officers to cities around the country to “suppress violent rioters and anarchists” who he said had “hijacked legitimate protests”—thus echoing Trump’s own calls for a crackdown. He oversaw the law-enforcement action to deny the right of peaceful protest in Lafayette Square so Trump could have a photo op at St. John’s Church. His department unsuccessfully attempted to enjoin the publication of former National Security Adviser John Bolton’s book, which disclosed facts embarrassing to the president.

Again sounding like Trump, Barr made multiple unsupported statements about the untrustworthiness of mail-in voting. He also talked at length—in violation of clear departmental policy to refrain from commenting about ongoing investigations—about supposed improprieties being unearthed by John Durham’s specially commissioned investigation of the FBI inquiry into Russian election interference. Barr echoed Trump’s tweets in interviews on . . .

Continue reading. (no paywall)

Written by Leisureguy

20 September 2022 at 2:42 pm

Gratifying news re: the Special Master and Trump’s theft of classified documents

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Jennifer Rubin writes in the Washington Post (no paywall):

Donald Trump and Federal Judge Aileen M. Cannon might end up regretting their selection of Raymond Dearie as the special master to undertake the review of classified papers retrieved from the former president’s Mar-a-Lago club. In fact, as Trump desperately attempts to delay a possible indictment, the Justice Department’s investigation into Trump seems to be gaining speed.

Things took a turn for the worse for Trump and Cannon when the no-nonsense Dearie demanded what Cannon failed to do: make Trump say under oath whether he had “declassified” any documents. That’s a problem for Trump. If he attests to something widely believed to be false (multiple former Trump officials have said there was no outstanding order to declassify documents), he risks criminal charges for lying. If he says he didn’t declassify them, the government’s classification system is final (worsening his liability for hoarding the documents).

Trump’s attorneys are refusing to answer Dearie’s questions about declassification for now, an astounding act of gamesmanship. Their defiance will only bring Dearie closer to the point of ruling that there is no dispute as to classification (contrary to Cannon’s assertion). Given the nature of the documents and the potential threat to national security their mishandling poses, it seems virtually impossible for Trump to sustain an executive privilege claim.

This should have been obvious to Cannon as well, but she chose to fob the decision off to Dearie, who — unless the U.S. Court of Appeals for the 11th Circuit beats him to the punch — will likely end Trump’s bogus attempt to recover top-secret documents that never belonged to him.

Trump’s team is also whining that Dearie is moving expeditiously with a final report due back to Cannon no later than Nov. 30. If Trump’s advisers were betting on Dearie dragging his feet, they seemed to have miscalculated.

In fact, Dearie might be the least of Trump’s new legal travails. The New York Times reports that . . .

Continue reading. (no paywall)

Written by Leisureguy

20 September 2022 at 10:15 am

WTF?! Border Wall Construction Resumes Under President Joe Biden

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Ryan Devereaux reports in the Intercept:

MYLES TRAPHAGEN DIDN’T need a government presentation to tell him that border wall construction was kicking back up. He saw everything he needed on a recent visit to the Buenos Aires National Wildlife Refuge and the Coronado National Forest, near the town of Sasabe in southern Arizona.

As the borderlands coordinator for the Wildlands Network, Traphagen had visited the area many times before. It was among the sites he examined in an extensive report published in July documenting the environmental impact of the border wall expansion under President Donald Trump — President Joe Biden paused the construction shortly after his inauguration.

Traphagen spotted a new staging area and water holding tanks under construction. Fixed to the wall were new signs citing an Arizona trespassing law. A security guard at the scene told him construction was resuming. Later, a Border Patrol agent ordered him to leave the area.

“It’s feeling like it felt during border wall construction with Trump,” Traphagen told The Intercept. “I hadn’t felt that on the border in a year and a half, and now it’s like, oh, shit, here we go again.”

Six days after Traphagen’s visit, U.S. Customs and Border Protection confirmed that work on the border wall that began under Trump is revving back up under Biden. In an online presentation Wednesday, CBP — the largest division of the Department of Homeland Security and home to the Border Patrol — detailed plans to address environmental damage brought on by the former president’s signature campaign promise and confirmed that the wall will remain a permanent fixture of the Southwest for generations to come.

The resumed operations will range from repairing gates and roads to filling gaps in the wall that were left following the pause on construction that Biden initiated in January 2021. The wall’s environmental harms have been particularly acute in southern Arizona, where CBP used explosives to blast through large swaths of protected land — including sacred Native American burial grounds and one-of-a-kind wildlife habitats — in service of Trump’s most expansive border wall extensions.

Starting next month, contractors will return to the Sonoran Desert in Arizona to resume work on the wall, senior CBP officials said in a public webinar. In the months since Biden’s pause began, DHS Secretary Alejandro Mayorkas approved several so-called remediation projects related to the border wall. The first plan that CBP presented for public comment was in the Tucson sector, the Border Patrol’s largest area of operations and site of Trump’s most dramatic and controversial border wall construction.

IN EARLY 2020, the press was invited to watch as Border Patrol and Department of Defense officials blew apart chunks of the Organ Pipe Cactus National Monument, south of Tucson, to make way for Trump’s wall. The display followed months of protests, as the administration tapped into a rare desert aquifer that feeds Quitobaquito Springs, an oasis that the Hia-Ced O’odham people have held sacred for thousands of years.

Two Hia-Ced O’odham women were later arrested, strip-searched, and held incommunicado after praying and protesting at the construction site. Earlier this year, one of the two women, Amber Ortega, was found not guilty of the charges after a federal judge ruled that the prosecution violated her rights under the Religious Freedom Restoration Act. . .

Continue reading.

It’s clear — it was clear under Trump and it’s clear now — that the border wall is expensive, ineffective (most illegal immigration is done through normal ports of entry and people overstay their visas), and an environmental disaster. Democrats opposed the wall. Has Biden just lost the plot?

Written by Leisureguy

18 September 2022 at 6:09 pm

The Illusion of Truth

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Why Trump repeats his lies so often (and why Republicans follow along).

Written by Leisureguy

10 September 2022 at 5:25 pm

Mar-a-Lago a magnet for spies, officials warn after nuclear file reportedly found

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Julian Borger reports in the Guardian:

Mar-a-Lago – the Palm Beach resort and residence where Donald Trump reportedly stored nuclear secrets among a trove of highly classified documents for 18 months since leaving the White House – is a magnet for foreign spies, former intelligence officials have warned.

The Washington Post reported that a document describing an unspecified foreign government’s defences, including its nuclear capabilities, was one of the many highly secret papers Trump took away from the White House when he left office in January 2021.

There were also documents marked SAP, for Special-Access Programmes, which are often about US intelligence operations and whose circulation is severely restricted, even among administration officials with top security clearance.

Potentially most disturbing of all, there were papers stamped HCS, Humint Control Systems, involving human intelligence gathered from agents in enemy countries, whose lives would be in danger if their identities were compromised.

The Office of the Director of National Intelligence is conducting a damage assessment review which is focused on the sensitivity of the documents, but US officials said it is the job of FBI counter-intelligence to assess who may have gained access to them.

That is a wide field. The home of a former president with a history of being enthralled by foreign autocrats, distrustful of US security services, and boastful about his knowledge of secrets, is an obvious foreign intelligence target.

“I know that national security professionals inside government, my former colleagues, [they] are shaking their heads at what damage might have been done,” John Brennan, former CIA director, told MSNBC.

“I’m sure Mar-a-Lago was being targeted by Russian intelligence and other intelligence services over the course of the last 18 or 20 months, and if . . .

Continue reading.

Later in the article:

. . . During Trump’s presidency, two Chinese women were caught trespassing there on separate occasions.

One of them, Yujing Zhang, was in possession of four mobile phones, a laptop, an external hard drive, and a thumb drive later found to carry malware. In her hotel room, investigators found nine USB drives, five SIM cards and a “signal detector” device for spotting hidden microphones or cameras. She was found guilty of unlawfully entering a restricted building and making false statements to a federal officer, and deported to China in 2021. . . .

Written by Leisureguy

10 September 2022 at 3:22 pm

How Trump Supporters Came to Hate the Police

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Luke Mogelson has an interesting article in the New Yorker. This is an archived copy, so no paywall:

In early August, after agents executed a search warrant at Mar-a-Lago, Donald Trump’s private club in Palm Beach, Florida, allies of the former President were quick to villainize the F.B.I. Although the raid had recovered more than a hundred classified documents, at least eighteen of which were labelled “Top Secret,” Republican pundits and politicians questioned its legitimacy and denounced the federal agency as a “gang of dangerous criminals,” “wolves,” the “Gestapo,” “the K.G.B.,” and “the enemy within.” Calls for retribution spread online. A forty-two-year-old Trump supporter named Ricky Shiffer wrote, “You’re a fool if you think there’s a nonviolent solution.” Shiffer then attempted to enter an F.B.I. field office in Ohio, equipped with body armor, an assault rifle, and a nail gun. After triggering an alarm, he fled the scene in his vehicle, and a high-speed pursuit ended in a shoot-out with state troopers, during which Shiffer was killed. Three weeks later, Trump gave a speech in which he called F.B.I. agents “vicious monsters.”

Given the broad support that Republicans have historically enjoyed from law enforcement, their escalating hostility toward the F.B.I. may seem paradoxical. Right-wing extremists, however, have always viewed state agents as pernicious antagonists, and so the institutionalization of that mind-set should come as no surprise as the G.O.P. embraces the ideas and attitudes of its radical flank.

In the early days of the pandemic, as Trump supporters began mobilizing against lockdowns and other public-health measures, much of their rage was directed at law enforcement. On April 30, 2020, heavily armed conservatives descended on the Michigan state capitol, in Lansing. Facing off against police outside the barred doors of the legislature, they denounced the officers as “traitors” and “filthy rats.” Some members of the mob belonged to the Michigan Liberty Militia, whose founder later told me that he had created the outfit in 2015, after “seeing what happened with the Bundys.” Cliven Bundy, an elderly rancher in Nevada, had declared war on the government when the Bureau of Land Management impounded his cattle over his refusal to pay outstanding grazing fees. After a tense standoff in which Bundy supporters surrounded law-enforcement agents and trained rifles on them from nearby hilltops, the Bureau of Land Management released the livestock and withdrew from the area.

Following the incident in Lansing, Mike Shirkey, the Republican Senate majority leader in Michigan, condemned the protesters as “a bunch of jackasses” who had used “intimidation and the threat of physical harm to stir up fear and rancor.” Shirkey seems to have quickly realized, though, that such principled nonpartisanship was no longer tenable in American politics. A couple of weeks later, at an anti-lockdown rally in Grand Rapids, I watched him publicly laud the Michigan Liberty Militia and assure its members, “We need you now more than ever.”

In the weeks that followed, resentment of law enforcement intensified sharply, with anti-lockdowners perceiving individual officers as complicit in an oppressive, tyrannical order. “They deserve to wear the Nazi emblem on their sleeves!” one retiree told me of the state police who’d served a cease-and-desist order to a barber violating the governor’s suspension of personal-care services. “People like me used to fucking back you!” a veteran shouted at police handing out citations at a gathering in Lansing. “But you are trash!”

Then, on May 25, 2020, a police officer murdered George Floyd, in Minneapolis. I left Michigan to cover the ensuing demonstrations and riots, and when I rejoined the anti-lockdowners I found that their stance toward law enforcement had undergone a dramatic reversal. That June, I attended a demonstration outside the capitol orchestrated by the Michigan Liberty Militia and a right-wing organization called the American Patriot Council. Ryan Kelley, a co-founder of the latter group, climbed the steps and pointed to several officers who were monitoring the scene. Not long ago, I had witnessed anti-lockdowners furiously berate these very same men. “We say thank you for being here,” Kelley told them now. “Thank you for standing up for our communities.”

The volte-face reflected a larger pattern of contradiction. The original Michigan Militia was created, along with a wave of other white paramilitary groups, in 1994, following the government’s botched attempt to arrest the survivalist Randy Weaver at his cabin, on Ruby Ridge, in northern Idaho. The deadly siege, less than a year later, of the Branch Davidian compound, in Waco, Texas, and the Clinton Administration’s subsequent ban on assault weapons reinforced a right-wing narrative that white Christians were under attack. After Waco, the Michigan Militia ballooned to an estimated seven thousand members. In 1995, on the second anniversary of the Waco massacre, Timothy McVeigh, a white supremacist who’d attended several Michigan Militia meetings, detonated an enormous truck bomb in Oklahoma City, killing a hundred and sixty-eight people. The leaders of the Michigan Militia decamped to Alaska, and the organization collapsed. Over the next decade and a half, right-wing militants across the U.S. remained largely dormant. Meanwhile, under President George W. Bush, the federal government enacted unprecedented infringements on personal privacy and other individual rights while the F.B.I. employed extraordinarily invasive surveillance and investigatory techniques against law-abiding citizens, largely on the basis of their religion. The reason that none of this provoked anti-government extremists was simple: the targets of the overreach were Muslims.

Similarly, . . .

Continue reading.

Written by Leisureguy

10 September 2022 at 1:02 pm

The Solution to the Trump Judge Problem Nobody Wants to Talk About

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In Slate Dahlia Lithwick and Mark Joseph Stern write:

Legal analysts lit up social media on Monday in response to the broad and potentially devastating order by Judge Aileen M. Cannon, a Donald Trump appointee to the Southern District of Florida, temporarily halting the criminal investigation of the former president and his alleged pilfering of classified documents. Her order further authorized a special master to identify and return the small fraction of materials seized in last month’s court-approved search of Trump’s Mar-a-Lago residence that may belong to him. One analyst after another meticulously detailed the failings of Cannon’s reasoning: It was “untethered to the law,” “a political conclusion in search of a legal rationale,” “deeply problematic,” “laughably bad.” At some point, one truly runs out of euphemisms for lawless partisan hackery.

It’s possible to agree with every one of these criticisms but still find them less than satisfying. Because at the end of the day, no matter how much withering criticism she faces, Cannon still gets to put on the black robe and run interference for her benefactor. She will still get a standing ovation at some future Federalist Society gathering. She remains in control of this case. But it’s not just Cannon: Many smart lawyers also noted that the Justice Department now faces the unenviable task of having to appeal this decision up to higher courts that are filled with Trump appointees, which takes the sting out of the opprobrium: For all we know, the Trump-stacked 11th U.S. Circuit Court of Appeals or five radical justices on the Supreme Court may also greet her outrageous decision with a standing ovation.

So the problem is not just the extreme and heinous flaws in Cannon’s ruling. It’s also the Trump-shaped world in which Cannon operates, with impunity, which we will all have to endure for the foreseeable future. It’s the brutal reality that we may face a steady stream of depraved decisions like Cannon’s for the rest of our lives—and the pain of hearing from every quarter that nothing can be done to remedy it.

We watched the same pattern play out at the end of this last Supreme Court term. One case after another blew up decades of existing precedent and tests and doctrine and replaced them with Rorschach exams that transformed contemporary Republican policies into constitutional law. Smart lawyers dutifully digested these opinions and set to work figuring out just how the EPA, or public school districts, or state legislatures that want to stop mass shootings can plausibly work around these new tests. And of course, were we living in a rational regime in which the rule of law governed, that would make perfect sense. But if the last term at the Supreme Court and indeed Cannon’s baffling new order mean anything, they signify that in this new age of legal Calvinball, one side invents new “rules” and then the other scrambles to try to play by them. For every single legal thinker who read the Mar-a-Lago order to mean, quite correctly, that ex-presidents are above the law, furrowing your brow and pointing out its grievous errors only takes you halfway there. The better question is what, if anything, do you propose to do about it? The furrowing is cathartic, but it’s also not a plan.

If there were a principle that best embodies why progressives are losing ground so quickly—even as they are correct on the facts, and the law, and the zeitgeist—it must be this tendency to just keep on lawyering the other side’s bad law in the hopes that the lawyering itself will make all the bad faith and crooked law go away. But for those who are genuinely worried that democracy will rise or fall based on whether a case lands before their judges or others, merely explaining legal flaws in pointillist detail isn’t an answer. And soberly explaining that Cannon was wrong about most stuff but correct about two things is decidedly not an answer, either. You do not, under any circumstances, have to hand it to them.

It is not a stand-alone answer to point out that Cannon was a Trump pick—a member of the extremely not-neutral Federalist Society, seated after Trump lost the election—or that the former president’s lawyers forum-shopped in order to get this case in front of her. It also doesn’t help to note that Cannon herself acknowledged the proper venue to adjudicate the executive privilege claims made in this case (which are on their face absurd) is in fact in a different court in D.C., where Cannon has no jurisdiction and where Trump did not make his case. Nor is it an answer to note that federal judges have literally no constitutional authority to stop an ongoing criminal investigation in its tracks, as Cannon purported to do, rendering her decision an imperious assault on the separation of powers. That, too, is an accurate description of the problem. Stating that, too, is not a solution.

Until and unless those of us who are shocked and horrified at lawless rulings by lawless Trump judges are prepared to propose structural solutions, the aggregated effect of criticizing their rulings won’t be to restore the rule of law or even to restore public confidence in the rule of law. The aggregated effect will be just to confirm that we will all be living under the thumb of Donald Trump’s lifetime-appointed hacks for many decades.

There are solutions out there for the problem of Trump’s runaway judges. Expanding the courts—even just the lower courts—is the most bulletproof. Congress has periodically added seats to the federal judiciary from its inception to help judges keep up with ever-ballooning caseloads. Today’s litigants (who are not named Donald Trump) often face yearslong court delays. The Judicial Conference, a nonpartisan government institution that develops administrative policies, has begged Congress to add seats to the lower courts. Some Republicans have supported the idea in recognition of the crisis facing our understaffed judiciary. Letting Joe Biden balance out far-right courts like the 11th U.S. Circuit Court of Appeals—which will weigh Cannon’s ruling if the government appeals—would go a long way to tame the jurisprudence of Trumpism. When district court judges know their radical decisions will be overturned on appeal, they may be less likely to swing for the fences in the first place.

There are other worthy ideas too. Term  . . .

Continue reading.

Written by Leisureguy

6 September 2022 at 6:08 pm

How the Right operates

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From a reference given in the Heather Cox Richardson column in the previous post:

Click the link and read the thread.

Written by Leisureguy

5 September 2022 at 9:45 pm

One of Trump’s minions is working to protect him

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Heather Cox Richardson:

Today, on the federal holiday of Labor Day, Judge Aileen M. Cannon of the U.S. District Court for the Southern District of Florida granted former president Trump’s request for a special master to review the nearly 11,000 documents FBI agents seized in their search of the Trump Organization’s property at Mar-a-Lago on August 8.

The special master will examine the documents, some of which have the highest classification markings, to remove personal items or those covered by attorney-client privilege or those that might be covered by executive privilege (although President Joe Biden, who holds the presidency and thus should be able to determine that privilege, has waived it). The order temporarily stops the Department of Justice from reviewing or using the materials as part of their investigation into Trump’s mishandling of classified information.

That is, a Trump-appointed judge, confirmed by the Senate on November 13, 2020, after Trump had lost the election, has stepped between the Department of Justice and the former president in the investigation of classified documents stolen from the government.

Legal analysts appear to be appalled by the poor quality of the opinion. Former U.S. acting solicitor general Neal Katyal called it “so bad it’s hard to know where to begin.” Law professor Stephen Vladeck told Charlie Savage of the New York Times that it was “an unprecedented intervention…into the middle of an ongoing federal criminal and national security investigation.” Paul Rosenzweig, a prosecutor in the independent counsel investigation of Bill Clinton, told Savage it was “a genuinely unprecedented decision” and said stopping the criminal investigation was “simply untenable.” Duke University law professor Samuel Buell added: “To any lawyer with serious federal criminal court experience…, this ruling is laughably bad…. Trump is getting something no one else ever gets in federal court, he’s getting it for no good reason, and it will not in the slightest reduce the ongoing howls that he’s being persecuted, when he is being privileged.”

The judge justified her decision because she was “mindful of the need to ensure at least the appearance of fairness and integrity under the extraordinary circumstances presented.”

Energy and politics reporter David Roberts of Volts pointed out that this is a common pattern for MAGA Republicans. First, they spread lies and conspiracy theories, then they act based on the “appearance” that something is shady. “So this… judge says Trump deserves extraordinary, unprecedented latitude because of the ‘extraordinary circumstances’ and the ‘swirling questions about bias.’ But her fellow reactionaries were the only ones raising questions of bias! It’s a perfectly sealed feedback loop,” and one the right wing has perfected over “voter fraud.”

As political scientist Brendan Nyhan points out, bad-faith attacks on our democratic processes open the door for changing those processes.

Something else jumps out about the judge’s construction, though: it makes . . .

Continue reading.

Written by Leisureguy

5 September 2022 at 9:34 pm

Trump Is Having a Nuclear Meltdown on His Sad Social Media Platform

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In the New Republic Alex Shephard looks at Trump’s decompensating under pressure. This archived version of the article doesn’t have the paywall, but the title of the article is overlaid. The article begins:

This week, the Department of Justice released photographs of highly sensitive, top secret documents that were recovered during the FBI’s raid of Mar-a-Lago last month. If it’s true that a picture speaks a thousand words, then some of those words, in this instance were, “Wow it sure looks like Trump committed a serious crime,” and “If this was any other person, they’d likely be indicted right now, if not down a deep, dark hole.” But Trump is not “any other person: As a once and (he hopes) future head of state, he’s being treated with a lot more deference than most suspects. He’s also unlike other people in another way: He seems bent on personally decimating his own defense, with the help of his allies.

Since the DOJ executed their search warrant, there has been little doubt that this was a more serious matter than most other Trump peccadilloes. But throughout his political career—and business career, for that matter—Trump successfully skirted out of danger, often on some very flimsy premises. When impeached the first time for trying to withhold military aid to Ukraine in exchange for dirt on Joe Biden—a scandal that only looks worse with every passing week of Russia’s invasion—he and Republicans hung on to a sliver of ambiguity, arguing that there was never an explicit quid pro quo. When impeached a second time—this time for inciting a riot that nearly killed members of Congress—they followed more or less the same strategy. Sure, Trump implored his followers to “fight like hell.” But he didn’t mean it literally. In fact he meant the opposite.

There is no sliver of ambiguity now. The photographs released by the Department of Justice on Tuesday is the equivalent of the quintessential “drugs on the table” pictures associated with narcotics busts. The FBI went to Mar-a-Lago and found hundreds of pages of documents clearly marked “top secret.” Donald Trump, a private citizen, is not allowed to have those documents. Not only that, his lawyers lied to the Feds. For the first time in his post-presidency, it now seems more likely than not that he will be prosecuted. Trump is currently benefiting from the Department of Justice’s quasi-official directive to not indict a political figure within 90 days of an election. But it would not be surprising to see an indictment come the early winter. Trump is screwed. But so are the Republicans who have insisted that there was nothing to see here.

For weeks, Trump has rotated through a variety of implausible explanations for why he was hanging on to these materials: First the documents were fake; later, despite being fake, he had declassified them anyway. With few exceptions, Republicans initially jumped into the fray in Trump’s defense, perhaps understandably considering he’d historically wriggled his way out of each and every jam. Trump’s defenders argued that the Department of Justice and its leader, Merrick Garland, were acting like the Gestapo; that this was a sign that the United States had become a banana republic. House Minority Leader Kevin McCarthy promised retaliation against Garland; others threatened to investigate Biden and his family when they retook power. (As if they aren’t already planning to do this.) Some issued calls to defund the FBI—an organization that, in their view, needed to be purged.

This response was almost autonomic; like watching the leg of a dead frog kick when an electric current runs through its corpse. Over the last seven years, there has only been one ironclad rule of GOP politics: The only excommunicable sin is to go against Donald Trump. And so Republicans reflexively backed him to the hilt—forgetting, as my colleague Matt Ford argued last month, that the smarter move is to always anticipate that something worse is coming.

They’d also forgotten that . . .

Continue reading.

Written by Leisureguy

3 September 2022 at 11:19 am

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