Month: January 2024

I got my law degree from watching “Law and Order” so I’m not what anyone would call an attorney. But I do find this stuff fascinating. I came across this last night on the presidential immunity question. (That question drives me crazy because it seems so obvious I can’t even imagine how it can be debatable but here we are.)

Anyway:

A new wrinkle has emerged in former President Donald Trump‘s immunity battle in his federal election interference case, with a watchdog group filing a brief on Friday calling for his appeal effort to be dismissed and for his trial allowed to resume.

Trump is currently contending with four criminal indictments at the state and federal levels, totaling 91 criminal charges in all. Among these cases is the federal one brought by the Department of Justice (DOJ) and special counsel Jack Smith pertaining to Trump’s alleged efforts to overturn the 2020 presidential election, which ultimately led to the January 6, 2021, Capitol riot. Trump, the frontrunner in the 2024 GOP presidential primary, has maintained his innocence in the case.

Trump’s current tactic in the case has been to claim that he has complete immunity from criminal prosecution for anything that he did while he was president. This claim was previously shot down by the judge overseeing the case, Tanya Chutkan, and is now set to go before the D.C. Circuit appeals court. Meanwhile, an effort by Smith to try and accelerate the appeals process straight to the U.S. Supreme Court was recently dismissed. As the process winds on, the trial has been put on hold, leading some observers to accuse Trump of trying to delay it as long as possible.

American Oversight, a nonprofit legal watchdog group, filed an amicus brief on Friday that said the D.C. Circuit appeals court lacks the jurisdiction to take up Trump’s appeal, and should therefore send the matter back to Chutkan and allow the trial to resume.

“As the American Oversight amicus brief argues, Supreme Court precedent [from 1989] prohibits a criminal defendant from immediately appealing an order denying immunity unless the claimed immunity is based on ‘an explicit statutory or constitutional guarantee that trial will not occur,'” the group’s official statement explained. “Trump’s claims of immunity rests on no such explicit guarantee. Therefore, given that Trump has not been convicted or sentenced, his appeal is premature. The D.C. Circuit lacks appellate jurisdiction and should dismiss the appeal and return the case to district court for trial promptly.”

In response to the filing, various legal experts and analysts chimed in on social media, with some calling the move “an interesting wrinkle.”

“Interesting wrinkle in the battle over Trump’s claims of presidential immunity: American Oversight, in an amicus brief, says the issue did not merit immediate appeal and the DC Circuit should simply kick the case back to Judge Chutkan for trial,” New York Times legal reporter Alan Feuer wrote on X, the platform previously known as Twitter.

“Interesting argument in new amicus brief by conservative lawyers that Trump’s immunity appeal is subject to final judgment rule and must wait until after trial,” former U.S. Attorney Barbara McQuade, who previously served the Eastern District of Michigan from 2010 to 2017 and appointed by former President Barack Obama, wrote. “Brief uses textual reading of Constitution to argue stay should be lifted immediately.”

American Oversight describes itself as a nonpartisan group, not conservative.

As I have said before, I won’t be surprised if the Supremes (who will hear it eventually anyway) decide to let this case drag until after the election in which case Trump will have it dismissed or they will let it continue since he’ll be out of politics. (Won’t he???)

It’s going to be a nail biter either way. It’s impossible to believe that even the most ardent “unitary executive” justice would think this man has immunity after he’s out of office because trying to overturn an election that had been fully adjudicated by the courts was part of his job. It’s ridiculous.:

Right:

[Y]ou have to go back to check from past years with respect to signatures. And if you check with Fulton County, you’ll have hundreds of thousands because they dumped ballots into Fulton County and the other county next to it. So what? So what are we going to do here, folks? I only need 11,000 votes. Fellas, I need 11,000 votes. Give me a break. You know, we have that in spades already, or we can keep it going.

So what are we going to do here, folks? I only need 11,000 votes. Fellas, I need 11,000 votes. Give me a break.

He was just doing his job.

Stephen Miller will be a very important influence in Trump 2.0

Judd Legum talks about the Trump threat in his newsletter today. I thought I would highlight just one little passage for those who think it might be useful to punish Biden and the Democrats by letting Trump have another term. It’s pretty clear it won’t just be the Democrats who suffer at Trump’s hands.

He talks about Trump’s close adviser Stephen Miller (and he is extremely influential) and what they have planned for the border:

Miller, on behalf of Trump’s campaign, pledged that “Trump will unleash the vast arsenal of federal powers to implement the most spectacular migration crackdown.” Miller described plans to “deport people by the millions per year” with a “blitz” intended “to overwhelm immigrant-rights lawyers.”

New tactics will include “workplace raids and other sweeps in public places aimed at arresting scores of unauthorized immigrants at once.” The scope of these raids would exceed the current capacity of Immigration and Customs Enforcement, so the effort would enlist personnel from the National Guard and other law enforcement agencies. Arrested migrants would be shuttled to “vast holding facilities that would function as staging centers.” These tent cities would be built by the military “on open land in Texas near the border,” according to Miller. 

The facilities would initially be “focused more on single adults because the government cannot indefinitely hold children under a longstanding court order known as the Flores settlement.” Miller said a second Trump administration would renew its efforts to overturn the Flores settlement. Reimplementing the child separation policy is also a possibility.  

Maybe it’s important to make many, many more people suffer than already are in order to make a political point. But I doubt people of good faith really want that. They must realize that knowingly making things worse for millions more people is a moral abomination.

Wayne LaPierre is going on trial.

As further evidence of the total corruption of the conservative movement, despite being shown to have ripped off the membership in the millions LaPierre was welcomed back into the fold. But this could be the end of him, God willing:

For decades, Wayne LaPierre, the National Rifle Association’s longtime leader, has been a survivor. He has endured waves of palace intrigue, corruption scandals and embarrassing revelations, including leaked video that captured his inability to shoot an elephant at point-blank range while on a safari.

But now, Mr. LaPierre, 74, faces his gravest challenge, as a legal showdown with New York’s attorney general, Letitia James, goes to trial in a Manhattan courtroom. Ms. James, in a lawsuit filed amid an abrupt effort by the N.R.A. to clean up its practices, seeks to oust him from the group after reports of corruption and mismanagement.

Much has changed since Ms. James began investigating the N.R.A. four years ago. The organization, long a lobbying juggernaut, is a kind of ghost ship. After closing its media arm, NRATV, in 2019, it has largely lost its voice, and Mr. LaPierre rarely makes public pronouncements. Membership has plummeted to 4.2 million from nearly six million five years ago. Revenue is down 44 percent since 2016, according to its internal audits, and legal costs have soared to tens of millions a year.

When the N.R.A. filed for bankruptcy in Texas nearly three years ago, the step was part of a strategy to move to the state amid the New York investigation. But a Texas judge dismissed the case, saying the N.R.A. was using the filing “to address a regulatory enforcement problem, not a financial one.” Now, longtime insiders say, the organization may be reaching a point where a legitimate bankruptcy filing is necessary.

Even with the N.R.A. moribund, Mr. LaPierre’s legacy as a lobbyist, if not as a marksman, remains intact. The gun rights movement has become a bulwark of red state politics during his more than three decades at the group’s helm. In recent years, significant federal gun control measures have been a nonstarter for Republicans despite a proliferation of mass shootings.

Mr. LaPierre is among four defendants in the suit brought by Ms. James in 2020. Others include John Frazer, the N.R.A.’s general counsel, and Wilson Phillips, a former finance chief. The fourth defendant, Joshua Powell, was the organization’s second-in-command for a time, but later turned against it and even called for universal background checks for those buying guns and so-called red flag laws that allow the police to seize firearms from people deemed dangerous.

Ms. James seeks to use her regulatory authority over nonprofit groups to impose a range of financial penalties against the defendants and to remove Mr. LaPierre; any money recovered would flow back to the N.R.A. Jury selection is scheduled to begin on Tuesday before State Supreme Court Justice Joel M. Cohen. The trial is expected to last six to eight weeks.

Let’s hope a NY jury has the good sense to put LaPierre out of business for good.

Section 3 of the 14th Amendment isn’t the only one forgotten

Move over Section 3. Michael Meltzner reminds readers of The American Prospect that America should not treat Section 2 of the 14th Amendment as a dead letter either. There is another lawsuit pending based on it:

About a year ago, I reported in the Prospect on a pending lawsuit filed on behalf of a citizens group by former Department of Justice lawyer Jared Pettinato. The suit asks that the Census Bureau be required to enforce Section 2 of the 14th Amendment, enacted in 1868 to strip congressional representation from states that disfranchise voters. The text applies to general methods states adopt that keep people from voting and is not limited to racial discrimination. The proportional loss of congressional representation would also reduce the votes that states would get in the Electoral College.

The Section 2 case is now moving toward resolution. Briefs have been filed, and oral argument is expected shortly before the court of appeals in Washington, D.C

It’s another one of those constitutional sections that seems to have been ratified and quickly forgotten. As someone who lives in one of the most heavily gerrymandered states in the nation and where voting law fuckery is a growth industry….

On a structural level, enforcing Section 2 for the first time would conceivably sanction and thus potentially eliminate the web of restrictions and hurdles that keep substantial numbers of citizens from casting a vote. Some states would lose representatives, and electoral votes, to states that make it easier to vote. In contrast, the Section 3 insurrection issue is individualized, dealing only with a former president whose misdeeds are unique in American history.

What the pending Section 2 case is about:

Wisconsin’s 2011 voter ID law prevented 300,000 registered voters who lacked identification from casting a ballot, according to U.S. District Court Judge Lynn Adelman. This finding was accepted as true on appeal, and should be accepted as true at this stage of the Section 2 litigation. As 300,000 registered voters is approximately 9 percent of Wisconsin’s total registrants, the complaint reasons that Wisconsin should lose 9 percent of its representatives, equal to one member of Congress and one electoral vote. Another state would gain that representative.

Yet, we know how these things tend to play out. Little guys who mistakenly violate election law or get stopped for driving while Black face the law’s full weight (and/or extrajudicial execution). The elite walk. Righting that problem is what the Section 3 lawsuits and prosecuting Donald Trump’s 91 felony indictments is about. Or is all our boasting about the rule of law no more than that?

Lucky us, the Roberts Supreme Court will likely decide whether their chosen profession is obsolete too.

It’s amazing that, given the central role courts construing constitutional texts play in our public life, the terms of operationalizing the 135 words of Section 2 have never been settled in over 150 years. The few lawsuits brought under its terms have almost all found ways to avoid enforcement. Only one case, which I filed in the 1960s when I was first assistant counsel at the NAACP Legal Defense Fund, had a different and unusual outcome. In that case brought by a group led by feminist and civil rights leader Daisy Lampkin, the judges unanimously took remedying disfranchisement by enforcing Section 2 seriously, but stayed their hand because they supposed the Voting Rights Act of 1965 might make enforcing it unnecessary.

Regardless of the outcome in the court of appeals, the Supreme Court will be asked to decide whether the Constitution’s explicit remedy for disfranchisement has life or should be ignored. The Court has many tools that can be used to continue the tradition of nonenforcement. Standing to sue doctrine allows avoiding decisions on the merits; but with respect to Section 2, continued use of it in case after case amounts to saying that what the Constitution says doesn’t matter. For a judiciary that roams across the scope of American life in its decisions, such an outcome can only be seen as random, and thus really political, decision-making. And deciding the Section 3 case to allow Trump back onto the ballot while avoiding a decision in the Section 2 case would have clear political overtones.

And social ones. That is, your JDs are BS.

Walking the crooked and narrow path

“We’ve reached the part of the campaign where Trump destroys Nikki Haley’s career and she then thanks him for it,” LOLGOP (Jason Sattler) posted this morning at Blue Sky. The former South Carolina governor has gained ground on Donald Trump in recent polling but has checked herself from launching direct attacks against TFG.

Politico’s Burgess Everett is also pondering the how swiftly 2024 Republican presidential also-rans and other Republican Trump critics will have their come-to-Donald moments. With the Iowa caucuses and New Hampshire primary held within the month, it will happen faster than the demon made Linda Blair’s head spin.

Trump has already contacted Sen. John Hoeven (R-N.D.) about an endorsement. Hoeven had endorsed fellow North Dakotan Gov. Doug Burgum before Burgham dropped out:

The Hoeven call shows how Trump’s campaign for Capitol endorsements is accelerating as he nears the first GOP nominating contest in Iowa. He won five endorsements from Republican senators during December alone, after snagging just three of them over the preceding four months. So far, Trump’s secured 18 endorsements from the Senate GOP, a group that ranges from establishment-minded Republicans to confrontational conservatives who will be vocal allies if he wins another term.

That success winning over the Hill GOP was hardly guaranteed — and comes just three years after Trump mounted a public campaign to overturn his 2020 loss that’s gotten him indicted on dozens of criminal charges. But a combination of behind-the-scenes courtships like that of Hoeven and the growing feeling of inevitability that Trump will win the nomination is peeling off Republican senators who might otherwise have longed for a new, less divisive standard-bearer. These days, many in the GOP see only upside to early support for Trump.

Haley was once Trump’s U.N. ambassador. Perhaps she imagines a promotion in a second Trump administration if she plays nice.

His recent converts include freshman Sen. Katie Britt (R-Ala.), who initially said her RNC job precluded an endorsement before endorsing Trump in December, as well as Sen. Josh Hawley (R-Mo.), who led a challenge to Trump’s 2020 defeat by President Joe Biden.

Lindsey Graham (R-S.C.), the second senator to endorse Trump in his 2024 bid, said the growing tide of pro-Trump senators signals that the former president’s path to the nomination is now “more clear” than ever in the days before Republicans cast their first ballots.

Graham’s head has been in a dark place for years. There was never any question how much farther up he would go.

There may be GOP holdouts, Everett explains. Republicans not facing reelection this year, for example. And men like Sen. Mitch McConnell of Kentucky. The Senate minority leader secured his power long before Trump. Sen. Ted Cruz (R-Texas) claims he will remain neutral until Republicans have selected their candidate, then offer his enthusiastic support.

There will remain only a handful of critics. Sens. Mitt Romney of Utah or Alaska’s Lisa Murkowski, for example. The rest will fall in line behind Trump, however malodorous that position may be.

“He’s a weak human being,” former Republican congressman Adam Kinzinger notes. What does that say about his supporters, especially elected “leaders,” that they will debase themselves to join Trump’s fraternity?

Adam Kinzinger describes Donald Trump’s odor situation as “not good” and says he smells like arm pits, ketchup, makeup, and ass pic.twitter.com/LvqQ5As9Ez

— Acyn (@Acyn) December 28, 2023

“That strength among Republican primary voters has always been there,” said Sen. Mike Braun of Indiana, a Trump supporter who is running for governor. “A lot of this is [senators] seeing what folks are telling them back home.”

Trump’s elected and unelected supporters want to rule. As much as they want to be ruled. It is no accident that his evangelical supporters were raised from childhood to long for the return of their risen king. Shy of getting Him, they’ll settle.

Update: They’re falling in line.

Republican loyalty to Trump, rioters climbs in 3 years after Jan. 6 attack

Trump complained to Breitbart about Biden’s vacations. I’m not kidding.

Trump [said] that when he went on vacation as president, he was always actually working and taking meetings with world leaders and lawmakers—and he never made anyone who had urgent business wait for a call back. He called Mar-a-Lago, where he spent some of his holidays as president, the “Southern White House,” and noted that he regularly packed his schedule even when he was not in the White House.

“I have to say, when I take vacations I’m always working,” Trump said. “This is really the Southern White House. I have meetings left, right, and all day. Even if I’m playing golf, I’m always playing golf with somebody who is important like heads of countries, senators, et cetera. But it’s all work.”

When Biden goes on vacation, though, Trump said he hears that he refuses to take phone calls and refuses to meet anyone—he just totally and completely checks out and makes himself unavailable for weeks on end.

“This guy takes a vacation and he doesn’t talk to anybody,” Trump said. “They say, ‘He’ll call you in two or three weeks because he’s on vacation.’ Did you know that? People call him and they say he’ll try getting back to you in the next two to three weeks because he’s on vacation.”

Note that he seems to be saying that he’s still president. “This is really the Southern White House …” Cognitive problems by any chance?

It’s all a big lie, of course. Trump spent all his mornings in the White House tweeting and watching television (aka “Executive Time”) and went on vacation more than any other president despite saying during the 2016 campaign that he would never leave the White House. Just because he called Mar-a-Lago “the Winter White House” and Bedminster the “Summer White House” and his aides call them “working vacations” doesn’t mean they weren’t vacations. He golfed constantly and whenever he went overseas he made promotional trips to his properties.

And, by the way:

Fact check:

As of Dec. 13, 2020, Trump had made 293 daytime visits to his golf clubs as president, with evidence of him playing golf on at least 148 visits, according to Trump Golf Count. By the Washington Post’s account published in August, Trump played golf on 237 separate occasions, nearly all at his properties.

In July 2019 at the Oval Office, a reporter asked Trump if he planned to take a “working vacation” that year at his Bedminster property. Trump pushed back on a link between Bedminster and “vacation.”

Trump said: “So I go to Bedminster, which is a beautiful place, but it’s never a vacation. It’s working, mostly.”

Trump may not like to use the word “vacation” for his down time. But his travels to his private properties and golf outings indicate that he hasn’t entirely committed to his campaign pledge not to take vacations. His own staff described his annual summer trips to his New Jersey golf club as a “working vacation.”

Any president of the United States is always working and that includes Biden. Trump is lying about him, of course. When he breathes, he lies.

Biden goes on a normal vacation in August and Christmas. On the weekends he often goes to his house in Delaware which is just a few miles away. And he goes to Camp David which is the presidential retreat. He works during all of it just like every other president.

Trump complained about Obama golfing throughout the 2016 campaign and during his presidency despite the fact that he golfed constantly and much more often than Trump. If you want to see how much it cost for him to be flying to Mar-a-Lago constantly check out this official GAO report.

It’s going to be momentous, no matter which way it goes

Author Brynn Tannehill tweeted this and I think she’s right. No matter what happens in the election in 2024, we are in for tremendous tumult. Even so, there is only one thinkable outcome. It won’t be easy and the aftermath may very well be violent. But it’s infinitely better than the alternative.

I’m going to bookmark once I post this, because it’s about what’s going to happen in 2024. I’m going out on a limb to say that regardless of what specifically happens, this is going to end up being mentioned along with 1860 as watershed moments in US history. 

Look, it’s easy to say that if Trump wins, it’s going to be chaos. We’ll see his new cabinet coming in. They’ll be telegraphing their intentions, and it’s going to be mayhem. Protests will already be happening, and Trump will already be promising to quash them.  

So, if Trump wins, on December 31st, 2024 we will be living in a nation holding it’s breath for the chaos and horror that comes next, whether it’s a theocratic fascist dictatorship, or a nation that Balkanizes in the attempt. If Trump wins, we get one or the other. 

But let’s suppose he doesn’t. In that case, he’s on his way to prison. The MAGA movement will be incensed, howling for blood, and p***ed that SCOTUS didn’t save their guy. There’s no way Republicans accept the results of the election if it’s close.  

And if it isn’t close, it’s going to because Trump got convicted somewhere, and a bunch of states were forced to take him off the general election ballot because of laws prohibiting convicted felons from running (or being on the ballot). 

In this latter case (again) there’s going to be anger, and an even stronger drive coming from within southern states to cease recognizing the authority of the federal government. 

If Trump loses, I also expect desperate shenanigans along the lines of the fake electors schemes, refusal to certify the election in the Senate or House if the GOP controls either. I also expect violence.

Regardless of who wins the 2024 election (Biden/Trump) it’s ugly. 

I also foresee a Supreme Court that continues to weaken it’s credibility regardless of how it rules. They’re now in a position where they’ll have to pick a side in a hopelessly divided nation. If they delay enough to allow Trump into office, it makes Balkanization likelier 

Of course, there will be Black Swan events. Maybe Trump or Biden suffers a medical emergency. Maybe the GOP fractures after a Trump conviction and Trump / Haley split the GOP votes. Maybe Trump does something so heinous that he loses cleanly. 

(The last is REALLY unlikely, the GOP base will never abandon him).

But, at the end of the day, we have an angry fascist movement that will stop at nothing to seize power and abuse it.

2024 will decide if they take power legitimately like Germany in 33 or Russia in 99. 

It’s going to be ugly in the US between 2024 and 2028. Way uglier than what we saw after the 2020 election. The question is, what SORT of ugly will it be?

2024 is going to determine what sort of suck we’re facing going forward. 

Even if Biden wins, we’ll see efforts to discredit the election and the courts. We’ll see efforts to overturn the election. Afterwards, we’ll see red states going even harder right and more autocratic, relying on SCOTUS to bail them out, and ignoring them when convenient. 

And if Trump wins, next New Year’s will be one of terror and despair for me, most LGBT people, and their families. It will be for a lot of other people who understand what the Trump administration is about to do.

But, one way or another, 2024 is going to a watershed. 

There is no doubt about it. No need to belabor what will happen if Trump wins.

If Biden wins we might get lucky and the air will just go out of the MAGA cult and his followers will content themselves with whining on social media and yelling at people on the street as they did when they won in 2016. (Yes, they do this even when they win.) But I imagine there will be some sort of violent paroxysm of anger that will be disturbing if not truly terrifying. We need to be prepared for anything..

Some sanity in Israel today:

Israel’s high court on Monday struck down Prime Minister Benjamin Netanyahu’s polarizing law that sought to limit the court’s power over government decisions and sparked mass anti-government protests and international condemnation.

Netanyahu’s plans to overhaul the judiciary upended Israel in the months leading to the Israel-Gaza war — and now threaten to cause a constitutional and leadership crisis just three months after the hotly divided country united behind the war effort.

Netanyahu’s Likud party slammed the decision as “in opposition to the nation’s desire for unity, especially in a time of war.”

“Today the Supreme Court faithfully fulfilled its role in protecting the citizens of Israel,” Israeli opposition leader Yair Lapid said on X, formerly Twitter.

Monday’s ruling concerned an amendment to Israel’s “Basic Law,” which serves in place of a constitution, that was pushed through and passed by Netanyahu’s far-right government in July. The altered law removed the right of the Israeli Supreme Court to block decisions made by government ministers that the judges deem “unreasonable.”

In striking down the law 8 to 7 on Monday, the top court’s ruling calls for the legislation to be removed. If Netanyahu’s government refuses to honor the ruling, the wartime country could face a constitutional crisis.

The overhaul plan, which Netanyahu’s coalition first proposed last January, set off nearly a year of widespread social unrest and drew extraordinary opposition from military and senior security officials.

Supporters of the legislation said it was a necessary corrective to an activist Supreme Court led by a clique of elite judges. Opponents said the law could lead to authoritarianism and paved the way for Netanyahu’s far-right and ultra-Orthodox backers to alter key foundation’s of Israel’s liberal democracy.

Weekly protests against the proposal drew hundreds of thousands of people. Military pilots and soldiers threatened not to report for volunteer duty if the government refused to back off its plan.

In March, Netanyahu fired his defense minister, Yoav Gallant, after Gallant called on the government to halt its plan, warning of potential security problems for Israel if reservists walked out. Gallant was reinstated two weeks later.

President Biden, one of Israel’s staunchest allies, in March also came out against the law in a rare public disagreement. “I hope he walks away from it,” Biden said, adding the Netanyahu’s government “cannot continue down this road.”

The ramifications of this are unknown. Netanyahu is weakened by it, for sure, and he and his far right allies are squealing about the ruling coming “in a time of war.” They had obviously been counting on that to get them out of this jam and it didn’t. Now they’re wringing their hands about how it will “destabilize” the government at a terrible time but that’s the best chance there is of putting an end to the carnage sooner rather than later.

Let’s hope the movement that has been in the streets over this will carry on. This government has to go. Netanyahu is corrupt, he and his allies failed to ensure that Israel was secure and now have taken advantage of the emotions naturally stirred by the events of October 7th to secure his position. It’s grotesquely cynical.

That used to be the mantra. Now nobody mentions it.

Trump should not be allowed to claim that he had the best economy the world has ever seen. It wasn’t bad, at least until the pandemic, which he made worse.His trade policies were destructive and he was basically riding on the belated recovery of the Obama years.

But this one is better. Way better.

Trump is testing his ability to persuade people to once again believe him or their lying eyes. It certainly works very well on the cult and no doubt will be successful. The question is whether or not he has the power to make people who don’t support him believe the same. A lot of that depends on the media. If they step up we might be ok.

Remember when Republicans thought they were finally rid of Trump and said things like this?

It didn’t last:

There has never before in history been a bigger group of craven opportunists or gutless cowards. Rubio’s not the only one, of course. The whole party has fallen into line behind the man most of them (aside from the truly dumb ones like Oklahoma Sen. Markwayne Mullin or Rep. Virginia Fox) know very well is a liar a cheat and a criminal.

This is what it’s going to take a long time to fix not the righteous application of the rule of law.