#dc circuit court of appeals

[odinsblog]

Elie Mystal covered the ridiculous, “Presidential Immunity” (aka, “Why Can’t Trump Be Treated Like A Dictator?”) case before SCOTUS

Dreeben: "BECAUSE THERE WEREN'T CRIMES!" (he didn't yell, I did, but he said "because there weren't crimes." )

Oh God, now Roberts wondering if they should send it back to the DC circuit because he's worried about presidents getting prosecuted in bad faith.

Roberts: "The court of appeals did not get into a focused consideration of what facts we're talking about or what documents we're talking about... they did not look at what courts usually look at when... taking away immunity."

Is this motherfucker serious? His argument is "Every president coups, why is mine getting charged?"

Thomas: Are you saying there's no immunity even for official acts?

And... that could be the ballgame

Roberts, Gorsuch, and Kavanaugh are more worried about a prosecutor going after a president for *political* reasons than A PRESIDENT TRYING TO OVERTHROW THE GOVERNMENT.

This is just about over.

And by "this" I mean the rule of law and by "over" I mean delayed indefinitely to help Trump.

Gorsuch suggesting that under the government's standard a president could be prosecuted for leading a "civil rights protest" in front of Congress and sought to "influence an official proceeding."

Yes, because Jan 6 and a fucking sit in are the same thing, Neil.

This is goddamn disgusting.

I'm going to keep listening because it is my literal job, but this is pretty much in the bag for Trump at this point. Remand to DC Circuit for decision on "official acts" and whether organizing a coup is one.

After November, if Trump loses, SCOTUS will return to the issue.

Alito: Are you really saying the president is subject to criminal laws like everybody else?

YES YOU DICK. THE PRESIDENT SHOULD BE SUBJECT TO THE LAWS LIKE EVERYBODY ELSE!

Alito: "I'm not talking about the particular facts of this case."

WHY? WHY THE HELL ARE NOT TALKING ABOUT THIS FUCKING CASE RIGHT IN FRONT OF YOU?

The question I'd have for the SCOTUS now is: If you do this, why would a Republican president every peacefully transfer power again?

Democratic presidents will because Democrats follow rules that don't apply to the other side. But why would Republicans just leave *ever again*?

Alito: Couldn't FDR's decision to inter Japanese Americans during WWII be charged [as a crime]?

He says that LIKE THAT'S A BAD THING?

And Dreeben is trying to say that he couldn't.

This country, and specifically this court, is a fucking joke.

Now onto self-pardons. Alito is just playing all the Fox News hits now.

I'm going to smoke. Biden should send Seal Team 6 to Mar-a-Lago because according to Alito there's no downside.

Alito just suggested that the last election was "questionably decided"

I have left my body and am texting things I can't say aloud to my friends.

Kagan is like the first person to be asking about the actual criminal acts Trump is charged with.

I assume Alito is not listening because Kagan is a woman while Gorsuch is probably sitting there emailing the New York Times because they got something wrong on the Spelling Bee.

I see the internet is unimpressed with Dreeben but that's being a little unfair. The Republican justices want to do this, there's nothing that Dreeben could say to stop them.

What he *could* be doing was making their hypocrisy more clear for the non-legal media following along.

But... SCOTUS advocates have to preserve their ability to argue another day, and blowing up the justices in one case

A: Doesn't help them actually win the case.

B: Actively hurts them in the next one.

Kavanaugh: "Like Justice Gorsuch, I'm not concerned with the here and now of this case, I'm concerned about the future."

I don't know why this is acceptable. I do know that the justices are sure they are right about ignoring the facts of THIS ACTUAL CASE.

Kavanaugh... who WORKED FOR KEN STARR... is basically saying that Jack Smith is politically motivated and his appoint in unconstitutional.

It's... maddening. And most of the media reports will not even point out this hypocrisy.

The "independent counsel" law was rewritten into our current "special counsel" law BECAUSE of the shit Kavanaugh helped Starr do! Everybody was like "that crap can't happen again."

Somebody get @neal_katyal and @MonicaLewinsky on the phone to blow up this asshole.

@neal_katyal @MonicaLewinsky Every time I try to no have a stroke listening to this bullshit, they say something even more risible and stupid.

@neal_katyal @MonicaLewinsky Kavanaugh: "President Ford's pardon. Hugely unpopular when he did it... now probably looked on as one of his better decisions."

What? WHAT? WHO THE FUCK THINKS FORD'S PARDON OF NIXON WAS A GOOD IDEA? WHEN DID I DIE AND GO TO HELL????

@neal_katyal @MonicaLewinsky This could be a men v. women 5-4 ruling.

Men: Let's kick this back to DC to further delay Trump's trial.

Soto, Kagan, Jackson: Why? That's fucking dumb.

Barrett: Ladies, I agree with you, but we shouldn't call the men fucking dumb. We should politely disagree.

@neal_katyal @MonicaLewinsky We're past the two and half hour mark for an argument where the Republican justices made their decision when they were appointed, some of them decades ago.

@neal_katyal @MonicaLewinsky KBJ is closing by trying to answer all of Gorsuch's questions, which would be effective if Gorsuch operated in good faith. But... he doesn't. So...

@neal_katyal @MonicaLewinsky I had hoped that *one* of the liberal justices would have made the point from the Common Cause brief, highlighting that the whole point of what Republican justices are doing is to give Trump delay.

Not a persuasive argument for the justices, but good for the media to hear.

@neal_katyal @MonicaLewinsky The case is submitted. Court doesn't come back till May 9th which will be a decision day.

But I think they won't decide *this* case until July 3rd for max delay. And that decision will be 5-4 to remand the case back to DC, for additional delay.

@neal_katyal @MonicaLewinsky I wish I had better news for you. Thanks anyway for following along with our national descent into madness.

[facelessoldgargoyle]

I haven’t seen anything about this on tumblr, so check it out:

TLDR:

- Insane Texas judge issues a ruling that revokes the FDA approval of commonly used medical abortifacient mifepristone. This was an insane ruling because (a) the plaintiffs lack standing to bring this case (b) the plaintiffs did not exhaust their appeals to the FDA, a requirement for bringing a case like this to trial (c) the statute of limitations for an appeal on the FDA’s approval ran out 16 years ago. In addition, the judge was wrong about mifepristone; it is a safe and effective method of seeking abortion.

- At the exact same time, a contrary ruling from a judge in Washington DC that requires the FDA to not change the status of mifepristone. 16 AGs of blue and purple states sued for this ruling. It directly contradicts the Texas 5th Circuit.

- The Supreme Court has issued an administrative stay of 7 days on the Texas ruling so that it can hear these cases and resolve the contradiction. Because the Texas ruling was made on such terrible legal grounds, I wouldn’t normally be concerned. However, this Supreme Court is politically motivated to eliminate abortion, so who can say?

- If you need a medical abortion, seek it NOW.

[follow-up-news]

The federal appeals court in Washington, DC, on Tuesday upheld the conviction of the Cowboys for Trump founder who entered the restricted area of the US Capitol on January 6, 2021, saying rioters didn’t have to know the Secret Service was protecting then-Vice President Mike Pence inside when they breached the area. The case is among a handful that tested the foundational approach the Justice Department took to prosecute hundreds of Capitol rioters, and the decision has been long-awaited since it was argued last December by those handling cases coming through the DC federal court. It also strengthens federal protection the Secret Service can offer, by defining more clearly the law around trespassing in areas where public officials are being protected. “The basis of the Secret Service’s authority to prevent access to designated areas for the safety of its protectees … need not be in the mind of the trespasser,” DC Circuit Judge Nina Pillard wrote in the opinion Tuesday. The unsuccessful challenge to the law was brought by Couy Griffin, a New Mexico local official who organized a group called Cowboys for Trump, who jumped a stone wall outside the Capitol to board the inauguration stage. Griffin was convicted of two misdemeanors, including the trespassing charge, and was sentenced to 14 days in jail and a year of supervised release. “In [Griffin’s] view, the statute also requires proof that he knew why the Capitol grounds were so restricted when he entered or remained there —i.e. that a Secret Service protectee was or would be temporarily visiting the Capitol grounds. We decline to adopt such a rule,” Pillard wrote in the 2-1 opinion. “Griffin’s approach would surely hinder the Secret Service’s capacity to handle the full range of potential threats.”

[justinspoliticalcorner]

Lisa Needham at Public Notice:

It finally happened. Judge Aileen Cannon, who has been telegraphing for months that she was committed to finding a way to get Trump off the hook in his classified documents case, came through for her guy. In a sprawling 93-page opinion, Cannon threw out the charges against the former president, agreeing with Trump that Special Counsel Jack Smith’s appointment was unconstitutional.  Since Trump stuffed the federal judiciary full of Federalist Society true believers, those courts are nothing but Calvinball. There are no longer any fixed rules and precedent doesn’t matter. What does matter to judges like Cannon is ensuring that a hard-right evangelical worldview becomes the rule of law in America and that Donald Trump is preserved at all costs. 

Cannon’s opinion is a joke

There’s little to no legal support for Cannon’s decision. In short, her ruling turns on the assertion that a special counsel is a “principal,” not an “inferior” officer. The former are appointed by the president and confirmed by the Senate — basically the same as cabinet appointments. Inferior officers generally have the same confirmation requirements unless Congress has authorized a head of a cabinet department to make the appointment. In that instance, Senate confirmation isn’t necessary.  The notion that the head of the Department of Justice can appoint special counsels as needed has been settled since the Watergate era. Indeed, if Senate confirmation were always required, special counsel appointments would become nearly impossible, as the Senate is basically non-functional thanks to the filibuster. Additionally, under Cannon’s view, if the Senate is held by the party in opposition to the current occupant of the White House, they essentially get a veto over every special counsel nomination.

The argument that special counsel appointments are unconstitutional if it makes Republicans sad has been pushed by conservative litigants who wanted to block Robert Mueller from investigating Russian interference in the 2016 election. As Quinta Jurecic noted at Lawfare, when the DC Circuit issued its appellate opinion in 2019, four other federal courts had already considered the matter, agreeing that the special counsel’s appointment was proper.  The architect of this anti-special counsel argument is Stephen Calebresi, one of the founders of the Federalist Society. Calebresi has shopped it around quite a bit, with major law review articles in 2018 and 2019 arguing Mueller’s appointment was improper and an amicus brief to the Supreme Court in Trump’s presidential immunity case.  Recall that Cannon’s decision to entertain the Trump appointments clause argument led to an extremely odd hearing where Cannon allowed amici — outside third parties like Calebresi — to present arguments in favor of Trump’s position. That’s a highly unusual step and telegraphed either that Cannon didn’t know what she was doing, was deliberately to bolster her inevitable decision in favor of Trump, or both. 

[...] Not content to deal with the case at hand, Cannon also decided she should go back to the 1980s and retroactively declare that the appointment of Lawrence Walsh, who investigated the Reagan Administration’s role in the Iran-Contra affair, was invalid. So, too, with Robert Mueller’s appointment as special counsel examining Russian interference in the 2016 election. The constitutionality of Mueller’s appointment had already been addressed by a federal appellate court five years ago when the DC Circuit Court of Appeals upheld Mueller’s appointment. However, yesterday’s opinion is very clearly Cannon’s job interview with Trump, and she’s writing this for an audience of precisely on person, so why not throw Trump some red meat about Mueller as well? Having disposed of decades of special counsel law, Cannon wasn’t left with much in the way of precedent. Perhaps that’s why she had to lean hard on Justice Clarence Thomas’s concurrence in the presidential immunity case to reach her preferred conclusion. 

[...] Special counsel Jack Smith has already indicated that the DOJ will be appealing the dismissal to the Eleventh Circuit Court of Appeals. Recall that the Eleventh Circuit overturned Cannon's previous ruling in this matter. Cannon granted Trump’s request that a special master review all the classified material Trump absconded with, which dragged the case to a halt. The Eleventh Circuit was not happy with this, saying, “We cannot write a rule that allows any subject of a search warrant to block government investigations after the execution of the warrant. Nor can we write a rule that allows only former presidents to do so.” And this is the core of the problem: People like Aileen Cannon are perfectly happy with a rule that only applies to Donald Trump. Indeed, Cannon’s order already states that “the effect of this Order is confined to this proceeding.” Those of us who lived through the 2000 Bush-Gore recount case will recall that the Supreme Court tried to create a similar firewall between their bad and self-serving ruling and the possibility it might ever be used against Republicans instead of just Democrats. In Bush v. Gore, when handing the presidency to George W. Bush, the Court wrote that “our consideration is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities.” See? Calvinball. The giveaway of the presidency to George W. Bush only applies to George W. Bush. The destruction of the special counsel process only applies to Donald Trump. If Republicans need either of these issues to go the other way in a court of law, they just have to point to Cannon’s language limiting it to this instance only.  Cannon’s timing, whether a product of her overall incompetence or a deliberate choice, is exceedingly favorable for Trump. Even if Smith prevails in the Eleventh Circuit, Trump could petition his pet Supreme Court justices to review the case. No matter what, the case is DOA before the election. The process of an appeal, the result of which would ultimately only be to send the case back down for trial, will drag long past the election.

Trump-appointed judicial activist Aileen Cannon plays Calvinball to justify Donald Trump’s document theft in her United States v. Trump ruling.

[beardedmrbean]

Maryland’s largest school district does not have to allow parents to opt their K-5 children out of classes and books that discuss LGBTQ topics like sexuality and gender, at least for now, a federal appeals court ruled on Wednesday.

The 2-1 ruling by the 4th U.S. Circuit Court of Appeals affirmed a lower court decision denying a preliminary injunction on the basis that the parents had not shown how the policy – initiated by the Montgomery County Public Schools (MCPS) board – would violate their children’s First Amendment right to free exercise of religion.

The parents had argued that refusal to provide an opt-out from their children’s exposure to LGBT-themed books and related discussions violates federal and state law.

Some of the book titles include "The Pride Puppy," "Uncle Bobby's Wedding," and "Born Ready: The True Story of a Boy Named Penelope." 

The parents argued that the books contradict their religious duty to train their children in accordance with their faith on "what it means to be male and female; the institution of marriage; human sexuality; and related themes."

The litigants - three sets of parents who are Muslim, Jewish and Christian, along with a parental rights organization -- argue that the responsibility for what their children learn should fall to them, instead of the schools.

However, the court ruled that the mere exposure to ideas contrary to one’s faith is not enough of a burden to implicate the First Amendment and that exposure to issues that one disagrees with, even for religious reasons, is "part of the compromise parents make when choosing to send their children to public schools," the ruling states.

"We take no view on whether the Parents will be able to present evidence sufficient to support any of their various theories once they have the opportunity to develop a record as to the circumstances surrounding the Board’s decision and how the challenged texts are actually being used in schools," U.S. Circuit Judge G. Steven Agee, President George W. Bush appointee, wrote for the majority in the opinion.

"At this early stage, however, given the Parents’ broad claims, the very high burden required to obtain a preliminary injunction, and the scant record before us, we are constrained to affirm the district court’s order denying a preliminary injunction."

U.S. Circuit Judge A. Marvin Quattlebaum, Jr., who was appointed by former President Trump, dissented, writing that he disagreed with the district court motion finding the parents failed to establish that the board burdened their First Amendment rights. 

"The parents have shown the board’s decision to deny religious opt-outs burdened these parents’ right to exercise their religion and direct the religious upbringing of their children by putting them to the choice of either compromising their religious beliefs or foregoing a public education for their children," Quattlebaum wrote.

"I also find that the board’s actions, at least under this record, were neither neutral nor generally applicable. Finally, I find the parents have established the other requirements for a preliminary injunction. So, I would reverse the district court and enjoin the Montgomery County School Board of Education from denying religious opt-outs for instruction to K-5 children involving the texts."

Eric Baxter, a senior counsel and vice president at the Becket Fund for Religious Liberty which is representing the parents, tells Fox 5 DC that the group is disappointed with the decision and says the themes are inappropriate for students.  

"They involve issues around sexuality that are simply too mature for such young children," Baxter said. 

Baxter tells The Hill they plan to appeal the ruling.

"The court just told thousands of Maryland parents they have no say in what their children are taught in public schools," Baxter tells the publication. "That runs contrary to the First Amendment, Maryland law, the School Board’s own policies, and basic human decency."

MCPS, which is the wealthiest district in Maryland, announced in 2022 efforts to include an LGBTQ-inclusive reading list as part of its English language arts curriculum. The decision sparked several rallies pushing for the school district to put the opt-out policy back in place.

Bethany Mandel, a mother and contributing writer for Deseret News, told "Fox & Friends First" last year that she believed it's a parent's right to tackle controversial topics, including sexuality and gender ideology, with their children on their own terms.

"Some of the books were first, second, third-grade read-aloud books about transgender ideology, about sexuality," Mandel told Carley Shimkus. "Some of the parents who spoke in favor of banning the opt-out said… 'I'm gay, and a book didn't make me gay and... There's no way that your child, if you shield them in this manner, can sort of operate in the outside world,' and that's not what anyone is asserting."

"No one thinks that our kids can turn gay by reading a book. What we're asserting is that children are best learning about these sort of tricky, sticky subjects from their parents, and their parents should have a right to determine how their kids are first introduced to this," she continued. 

[lboogie1906]

Barbara E. Pope (January 1854 - September 5, 1908) was born free to former enslaved Hannah and Alfred Pope in DC. Her parents were enslaved in New Jersey and her father, Alfred, became famous as one of a group of enslaved people who tried to escape in 1848 on the schooner Pearl.

She began writing short stories, and four of her works were printed in 1881 in the weekly women’s publication, Waverly Magazine. She worked at Tuskegee Institute for one year (1884-85) before she returned to teaching in Washington. She was assaulted by a student in 1888, and she refused to allow the student back into her class without an apology. When she did not find the student’s apology to be sufficient enough to match his actions, she resigned. She was making a comfortable living publishing fiction.

In 1906, she boarded a train at Union Station, headed toward Paeonian Springs, Virginia, to vacation. She noticed that the “Colored Car” was small and uncomfortable, and the seats faced backward. She chose to sit in the main compartment of the train, despite her awareness of Virginia’s Jim Crow laws. As soon as the train crossed over the Potomac River, the train conductor asked her to move to the “colored” car, and she refused. She was arrested at the Falls Church station and fined $10.

Members of the newly formed activist group the Niagara Movement, convinced her to appeal her conviction in the Virginia Circuit Court. They argued that as an interstate traveler, she was not subject to Virginia’s Jim Crow laws. She lost the appeal but filed the case with the Supreme Court of Virginia. The Supreme Court overturned the verdict of guilty, exonerating her, and ordered the fine be refunded. She sued the Southern Railway Co. for unethical treatment when it segregated her. She asked for damages of $20,000. The Supreme Court of the District of Columbia found in her favor but awarded her $0.01.

She paid a high personal price for her actions. She lost her income and suffered scrutiny and criticism from her family. This led her to months of depression and insomnia. #africanhistory365 #africanexcellence

[ralfmaximus]

The panel was UNANIMOUS! And yes, he will try to appeal.

But because the DC circuit's ruling is so airtight it's possible SCOTUS may decline to take up any appeal. We shall see...

[rjzimmerman]

Excerpt from this story from The Nation:

Donald Trump believes that he has the Supreme Court in his back pocket. He is right. The court heard oral arguments on Thursday in Trump v. United States, the case about whether Trump is immune from prosecution over his attempt to obstruct Congress and reverse the results of the election he clearly lost. Trump is counting on delaying the trial about his crimes committed in the previous election until he gets to the next one, which he hopes to win so he can then dismiss the charges against him. The Supreme Court has done everything in its power to help Trump accomplish his goals, and that pattern continued on Thursday.

At this point, people who expect anything less than the maximum partisan thuggery possible from the Republicans justices are not paying attention—or worse, they’re actively lying to themselves and the American people about what the Roberts court has become. The question has long since ceased being “whether” the court will help Trump; the question is only “how” it will go about doing it.

Heading into oral arguments, the justices-for-Trump crowd had three ways to stand by their man: They could grant Trump absolute immunity; they could reject immunity but release their ruling as late as possible; or they could send the case back down to the DC Circuit court for an additional ruling (lawyers call this a “remand”) that would trigger another appeal and another opportunity for delay.

The first option is kind of a nonstarter. Unlike, say, the Republican judges on the US Court of Appeals for the Fifth Circuit, the Republicans on the Supreme Court are generally careful to make sure that their pro-Trump rulings cannot be turned against them later and used by a Democratic president. Giving Trump blanket, absolute immunity could be used by people like the current president, Joe Biden, to do whatever he wanted. Granted, Biden would not use the newfound power to steal an election as Trump did—Democrats are eager to follow rules that don’t apply to the other side—and the Supreme Court knows that. But still, granting future presidents total immunity from criminal prosecution sets a precedent that even Republicans can see is dangerous.

The second option of just delaying the decision rejecting Trump’s argument has always been in play. But that option might not get the Supreme Court and Trump all the way to the next election. There is a timeline, albeit an unlikely one, where special counsel Jack Smith could still get through a trial before November, so long as the court rules against Trump by the end of the term.

That brings us to the third option: Remanding the case back to the DC Circuit. This is the option that causes maximum delay of Trump’s reckoning, allowing him to avoid it entirely if he wins the next election, while still preserving the court’s ability to say that blanket immunity is unconstitutional later down the line, should Trump lose. Remand is therefore the best possible option for the Republican justices if they want to see a Republican president elected in November—and at oral arguments, most of them signaled that’s exactly what they’re going to do.

[grits-galraisedinthesouth]

President Trump Special Counsel “Election Interference Case” in DC Suspended Indefinitely

February 2, 2024

In the ridiculous federal election interference case in D.C., President Trump’s attorneys argued to the DC Circuit appellate court that President Trump holds inherent constitutional immunity. In essence, because President Trump was acquitted by the Senate of claims he incited or instigated the January 6, 2021, events, lawyers arguing under the constitution that only impeached and removed presidents can be criminally prosecuted.

From the Comments:

The initial 3-judge panel of the court has taken up the appeal, and all subsequent lower court activity was suspended until the constitutional issue is resolved. Again, if President Trump does not have immunity, then all preceding and future presidents can be criminally prosecuted for any/all events and decisions while holding office. This is a core issue, and the DC Circuit Court of Appeals has to tread very carefully with these ramifications at the forefront.

The decision of the 3-judge panel could also be followed by a full en-banc review by all judges in the circuit. Then, depending on their decision, it could -likely will- go even higher to the U.S. Supreme Court. All of this takes time, and the initial 3-judge appeals court have not provided any hints on their timeline.

Apparently, as a consequence, the entire trial of the case has been removed from the lower DC court docket. The removal took place within the last few days, and the Washington Post noticed the removal. This removal means the timing of the case, if at all, is completely unknown now.

WASHINGTON – Former president Donald Trump’s March 4 trial date on charges of plotting to overturn the results of the 2020 election has been dropped from the public calendar of the federal court in Washington, a sign of what has long been anticipated — that his claim of presidential immunity from criminal prosecution would delay his trial while it remains on appeal.

The change did not appear on the official criminal case docket before U.S. District Judge Tanya S. Chutkan, who has made clear since Trump filed his appeal on Dec. 7 that all trial deadlines would be suspended while he challenges the case. On appeal, Trump is arguing that the government does not have authority under the Constitution to bring charges against him for actions he took while president after the 2020 election through the Jan. 6, 2021. (read more)

In addition to the challenges within these core issues, the Lawfare approach by Jack Smith, Mary McCord and Andrew Weissmann, faces multiple additional hurdles.  These are all issues that surface when Lawfare, the application of twisted legal theory intended to manipulate public opinion, runs into the reality of ever-increasing scrutiny from courts.

Combine these fraudulent legal theories with the reality that President Trump’s status is almost certainly “presumptive presidential nominee” in the eyes of the entire judicial branch, and things change.  The pretending justification for the Lawfare claims now hit the non-pretending and visible reality of political intent.

The judicial scrutiny gets even more focused, and the explanations demanded as justifications to target President Trump increase.  As the calendar of the November election gets closer Jack, Mary and Andrew will have to rely on ideologically aligned black robes to maintain their Lawfare pretense.  Some of the robes will not be comfortable with the demands of Jack, Mary and Andrew.

Some of the robes may not pretend, and that poses a problem for Jack, Mary and Andrew.

[dreaminginthedeepsouth]

* * * *

Supreme Outrage!

April 26, 2024

ROBERT B. HUBBELL

The Supreme Court heard oral argument on Thursday regarding Trump's presidential immunity defense. For clarity, that defense asserts that the president is above the law and beyond the reach of US criminal statutes that otherwise apply to every American. To the shock of everyone—and no one—the reactionary majority expressed sympathy for Trump's defense. The hearing itself was a supreme outrage. While the reactionary majority may not adopt the most extreme version of Trump’s defense, they need not do so to grant Trump a victory. Indeed, they have already granted Trump most of what he asked for: a lengthy delay.

Before I review the debacle that masqueraded as a Supreme Court hearing, let’s skip to the most important part: We have a remedy; we need only be bold enough to claim it. The current court is illegitimate; we must effectively replace it by enlarging the Court to overwhelm the reactionary majority.

Is such a plan reasonable? Constitutional? Wise? Achievable? Yes! Mitch McConnell created an Orwellian rule to deny Democratic presidents the right to appoint Supreme Court justices—and then waived the novel rule as soon as it would apply to an appointment by a Republican. Three justices (at least) lack legitimacy: Gorsuch and Barrett, whose appointments were tainted by the McConnell rule, and Clarence Thomas, who should recuse himself from every case relating to Trump. In short, one-third of the Court that heard Trump's arguments on Thursday had no business presiding over Trump's immunity claim.

Expanding the Court requires only a majority vote in both chambers of Congress and the signature of the president. Those conditions are within our grasp in November 2024. When I first raised this prospect in 2018, it was met with shock and horror by readers, who protested that expanding the Court would undermine its legitimacy. Such objections seem quaint in light of the damage wrought by the Court in six short years.

As Ian Millhiser of Vox wrote today,

One takeaway from today's debacle of a Supreme Court argument is Democrats need to start seriously considering packing the Supreme Court. A Court that would allow Donald Trump to get away with trying to steal a presidential election cannot be trusted.

We have a long list of issues that should drive us to the polls in historic numbers in November. Add to that list that we are burdened with a lawless Supreme Court that cannot be trusted with our democracy or Constitution.

As noted above, the reactionary majority granted Trump a victory before the hearing began by refusing Jack Smith’s request to skip the intermediate step of an appeal to the DC Circuit Court of Appeals. The Court enhanced that victory for Trump by refusing to hear the matter on an expedited schedule. And now it appears that the Court will issue a fractured opinion on the last day possible (June 30) that will order the trial court to engage in pointless pre-trial fact-finding about the difference between “private” and “official” acts.

But most critically, the reactionary majority gave Trump a victory by dignifying ludicrous arguments that should have been rebuked and condemned the moment Trump's counsel gave them voice. In failing to reject those arguments out of hand, the reactionary majority bestowed upon them the veneer of legitimacy and respectability they do not deserve.

For example, Supreme Court Justice Sonia Sotomayor asked Trump's lawyer,

If the president decides that his rival is a corrupt person and he orders the military to assassinate him, is that within his official acts to which he has immunity? Trump's lawyer responded, “That could well be an official act [and therefore immune from prosecution]”

How did we arrive at this point? How is it possible that counsel for a former president could say with a straight face that a president can order the assassination of a political rival with impunity? How could the justices sit silently and ponder counsel’s answer instead of rising in horror and ordering the attorney out of the courtroom? They are feckless. They have abandoned the Constitution in its hour of need by failing to communicate the horror and repulsion such arguments deserve.

The reactionary majority also gave Trump a victory by refusing to acknowledge the constitutional urgency of the attempted coup and insurrection. Rather than focusing on the facts alleged in the indictment against Trump, the reactionary majority crafted ever more fanciful hypotheticals that had no bearing on the case at hand. As expressed by Professor Laurence Tribe,

Today’s SCOTUS argument was more like a hearing in Congress to design an immunity law for future presidents, with Justice Kavanaugh saying “We’re not taking about the present case” and Justice Gorsuch saying “We’re writing rules for the ages” and Justice Alito joining in.

Only Justice Jackson reminded her colleagues that deciding this case was the Court’s task and that it might not be cool to use it as a vehicle for “answering in advance all these abstract questions”!

By engaging in fantasy rather than focusing on the facts at hand, it is inevitable that the Court will send the case back to the trial court for pre-trial fact finding—an outcome that will ensure the case will be delayed until after the election. The Court will thus deny all Americans the opportunity to cast their vote with the benefit of a jury verdict on Trump's guilt or innocence.

Justice Alito reached the pinnacle of bad faith by arguing that not granting immunity to Trump would increase the likelihood that a future president would try to stay in power. Huh? Every president before Trump relinquished power voluntarily without benefit of presidential immunity. If Trump is told he has absolute immunity and wins a second term, what motivation would he have to leave office—ever?

Alito also summited the peak of hypocrisy. In Dobbs, he wrote that there is no constitutional right to an abortion, reasoning as follows:

Constitutional analysis must begin with “the language of the instrument . . .  The Constitution makes no express reference to a right to obtain an abortion . . . .

But the Constitution make no reference to “presidential immunity.” As counsel for Jack Smith argued,

There is no immunity that is in the Constitution, unless this Court creates it today.

Do not expect blatant hypocrisy to slow Alito’s headlong embrace of presidential immunity that appears nowhere in the Constitution. Alito knows no shame in service of his reactionary agenda.

For additional discussion of the oral argument and potential outcome, see

Ian Millhiser in Vox, The Supreme Court is likely to place Donald Trump above the law in its immunity case (excellent legal summary), and

Chris Geidner at Law Dork, SCOTUS approach to Trump's immunity claim likely to delay D.C. case further (substack.com) (deep dive into argument by counsel and questions by justices).

Millhiser predicts an outcome along the following lines:

At least five of the Court’s Republicans seemed eager to, at the very least, permit Trump to delay his federal criminal trial for attempting to steal the 2020 election until after this November’s election. And the one GOP appointee who seemed to hedge the most, Chief Justice John Roberts, also seemed to think that Trump enjoys at least some immunity from criminal prosecution.

As summarized by Josh Marshall of Talking Points Memo, The Court is Corrupt. Say It With Me. Per Marshall,

The Roberts Court is a corrupt institution which operates in concert with and on behalf of the Republican Party . . . That’s the challenge in front of us. . . . But things become more clear-cut once we take the plunge and accept that fact.

The courts are not going to save us. The reverse is true. A significant portion of the federal judiciary has been corrupted and undermined by judges loyal to a reactionary religious and partisan agenda above all else. They view the Constitution and statutes as convenient “talking points” when they advance their agenda and disposable trifles when they do not.

Our remedy is at the ballot box. We must give Joe Biden control of Congress and a mandate to reform the federal judiciary—starting with the Supreme Court. We can achieve that goal if we are disciplined and tenacious. Put aside all disagreements and reservations to ensure Democrats win control of the executive and legislative branches in 2024. Then we can begin the long, slow work of repairing the damage inflicted in a few short years by the reactionary majority empaneled by Trump, McConnell, and The Federalist Society.

[Robert B. Hubbell Newsletter]

[stephen-barry]

Dr. William L. Bainbridge;

Ph.D., former CEO & Distinguished Research Professor at School Match Institute - University of Dayton (2001-2018)Ph.D., former CEO & Distinguished Research Professor at School Match Institute - University of Dayton (2001-2018)

With the presidential immunity case the SCOTUS was given an iron-clad ruling from the DC circuit court. It did not need to hear this case at all.

If it believed that, for reasons of legitimacy, it needed to weigh in, the Court could have granted cert to this appeal on the narrow question of whether or not Donald Trump, in this particular case, could claim immunity.

Instead, the Court granted cert on the widest grounds possible, giving itself the scope to define presidential immunity for all time.

Kim Wehle talked about this choice last night and it is striking how the conservatives on this Court were eager for the chance to create precedent.

“We’re writing a rule for the ages,” Justice Neil Gorsuch said during arguments.

But no one asked Gorsuch to write a rule for the ages.

The Court was given a narrow question to decide and the Court’s conservatives chose to widen the aperture as much as possible so that they could make right some cosmic wrongs they see in American law.

Which is exactly what conservatives used to complain that liberal judges did.

[greatwyrmgold]

So, Donald Trump's lawyer said that he thinks the President's legal immunity would protect him if he ordered Seal Team Six to assassinate a political rival.

He added qualifications about "He could be charged if Congress already impeached and convicted him," but that has a loophole where the President could resign if he was at risk of actually getting impeached and thereby get off scot-free.

Some commentators argued that Seal Team Six wouldn't actually listen to that assassination order, but that seems like shaky ground on which to justify letting that be legal. Others point out that this contradicts an argument Trump made earlier, about how Congress shouldn't impeach him because that's not actually necessary to pursue criminal charges, which is interesting but not that important.

What seems important to me is that Trump's legal team is openly admitting that their rhetorical positions only make sense if the President can get away with assassinating political rivals. Concerning. I hope they lose!

https://thehill.com/regulation/court-battles/4398223-trump-team-argues-assassination-of-rivals-is-covered-by-presidential-immunity/

[cmesinic]

Crazy 🤪!

[justinspoliticalcorner]

Sam Levine at The Guardian:

The Gateway Pundit, the far-right news website that played a critical role in spreading false information about the 2020 election, has settled a defamation lawsuit with Ruby Freeman and Shaye Moss, two Georgia election workers it falsely accused of wrongdoing. Notice of the settlement was filed in circuit court in Missouri, where Freeman and Moss had sued the site for defamation. Terms of the settlement were not disclosed in the filing. Nearly 20 articles that Freeman and Moss said had falsely accused them of wrongdoing were no longer available on The Gateway Pundit’s website as of Thursday afternoon, according to a Guardian review.

“The dispute between the parties has been resolved to the mutual satisfaction of the parties through a fair and reasonable settlement,” the legal team for Moss and Freeman said in a statement. Attorneys for the Gateway Pundit did not immediately return a request for comment. After the 2020 election, the Gateway Pundit published a series of stories amplifying a misleading video that showed Freeman and Moss counting ballots. The site pushed the false claim that the two women were committing fraud and counting illegal ballots after counting had ended for the night. The Gateway Pundit was the first news outlet to identify Freeman and later identified Moss, who have been cleared of all wrongdoing.

Even after Georgia election officials debunked the video, the site continued to publish numerous articles falsely accusing Moss and Freeman of fraud. Rudy Giuliani, Trump’s lawyer, also attacked the two women publicly. A Washington DC jury ordered Giuliani to pay nearly $150m to the two women last year for libel, a decision the former New York mayor is appealing. At the trial, Giuliani’s lawyer at one point accused the Gateway Pundit of being the basis of the false claims about the two women. The two women faced vicious harassment, including death threats, and fled their homes and went into hiding after people showed up unannounced at Freeman’s home. Moss’s son received death threats on his phone and fell behind in school. Freeman testified last year that she had nowhere to live. Moss testified to the committee investigating the January 6 attack in 2022, but has otherwise not spoken much publicly.

“I was terrorized,” Freeman said during a trial in Washington DC last year. “I’d rather stay in my car and be homeless rather than put that on someone else.” The site’s founder, Jim Hoft, had refused to concede that the site said anything false about the women, even though the state quickly debunked accusations of wrongdoing and a longer investigation formally cleared them. Hoft and his twin brother, Joe, also a contributor, held a press conference in Milwaukee during the Republican national convention in July and repeated many of the false claims about Freeman and Moss. The settlement with the Gateway Pundit is notable because of the influential role the site plays in spreading misinformation. One recent analysis by the group Advance Democracy found that the site is continuing to spread false information about voting and seed the idea that the 2024 election could be stolen.

Right-wing disinformation blog The Gateway Pundit reaches a settlement with Ruby Freeman and Wandrea Moss, two Georgia election workers that it defamed in service of the Big Lie in the aftermath of the 2020 elections.

[arpov-blog-blog]

Summary of DC Circuit's Denial of Trump's Immunity Claim

The court ruled today no blanket immunity for Trump.

Ron Filipkowski- Meidas Touch Network

..."The DC Circuit Court of Appeals denied Donald Trump's claim for of presidential immunity today for all crimes committed while in office. Trump will petition the Supreme Court now to take the case, but there is certainly no guarantee that they will. Judge Chutkan will certainly get this case back on her trial docket unless/until it is stayed by the Supreme Court. 

The court began their opinion with the following clear and stark language that will come as a shock to Trump's system:

"... former President Trump has become citizen Trump, with all the defenses of any other criminal defendant. But any executive immunity that would have protected him while he served as president no longer protects him against this prosecution."

Trump asserted that he had absolute immunity for any "official acts" he undertook while in office, and that everything he did in connection with the charges in the J6 indictment was an official act. The court then pointed out that previous Supreme Court decisions on presidential immunity distinguished between civil and criminal cases - interpreting immunity more broadly to protect presidents from civil lawsuits while president, but not for criminal charges. The court then addressed each of the specific arguments made by Trump why he should have total immunity:

SEPARATION OF POWERS

Trump argued that the courts have no jurisdiction to review presidential acts under the separation of powers doctrine. Trump's lawyers stated specifically that "neither a federal nor a state prosecutor, nor a state or federal court, may sit in judgment over a president's official acts." The court rejected that assertion, which was largely based on one line in the 1803 case of Marbury v. Madison:

"Former President Trump misreads Marbury and its progeny. Properly understood, the separation of powers doctrine may immunize lawful discretionary acts but does not bar federal criminal prosecution of a former president for every criminal act."

The court said that Marbury distinguished between discretionary acts, which are given immunity, and ministerial acts which are not. Ministerial acts were defined as duties that are imposed upon the president to perform under the law, and if they fail to perform them or performs them in contraction of the law which violates the rights of others, then they are not immune. The court then stated that one example of this is a federal statute passed by Congress that a president is required to follow would not granted immunity if he refuses to do so. 

The court then emphasized that when Trump filed dozens of lawsuits around the country challenging the election results in various places, he was not doing so in his official capacity as a president seeking to faithfully execute the laws governing elections. The DOJ did not bring these legal challenges, the Trump campaign did. They then made this scathing statement:

"Former President Trump's alleged efforts to remain in power despite losing the 2020 election were, if proven, an unprecedented assault on the structure of our government. He allegedly injected himself into a process where the president has no role - the counting and certifying of Electoral College votes - thereby undermining constitutionally established principles and the will of Congress."

[lboogie1906]

Jurist Ketanji Onyika Brown Jackson (September 14, 1970) serves as an associate justice of the SCOTUS. She was nominated to the Supreme Court by President Joe Biden and sworn into office on June 30, 2022. She was a US circuit judge of the US Court of Appeals for the District of Columbia Circuit.

She was born in DC. Her father, Johnny Brown, further attended the University of Miami School of Law and became the chief attorney for the Miami-Dade County School Board; her mother, Ellery, served as school principal at New World School of the Arts in Miami.

She studied government at Harvard University. She performed improv comedy took classes in drama and led protests against a student who displayed a Confederate flag from his dorm window. She graduated from Harvard with an AB magna cum laude. Her senior thesis was entitled “The Hand of Oppression: Plea Bargaining Processes and the Coercion of Criminal Defendants”.

She worked as a staff reporter and researcher for Time magazine, then attended Harvard Law School, where she was a supervising editor of the Harvard Law Review. She graduated with a JD cum laude.

She is a member of the Judicial Conference Committee on Defender Services and the Council of the American Law Institute. She serves on the board of Georgetown Day School and the Supreme Court Fellows Commission.

She has served as a judge in several mock trials with the Shakespeare Theatre Company. She presided over a mock trial, hosted by Drexel University’s Thomas R. Kline School of Law, “to determine if Vice President Aaron Burr was guilty of murdering” Alexander Hamilton.

She has served as a judge for the Historical Society of the District of Columbia’s Mock Court Program. She served on the advisory board of Montrose Christian School, a Baptist school.

She presented at the University of Georgia School of Law’s 35th Edith House Lecture. She gave the Martin Luther King Jr. Day Lecture at the University of Michigan Law School and was honored at the University of Chicago Law School’s third annual Judge James B. Parsons Legacy Dinner, which was hosted by the school’s Black Law Students Association. #africanhistory365 #africanexcellence #deltasigmatheta