From Roger Fitch and our friends down under

LETTER FROM WASHINGTON 

ROGER FITCH ESQ • THURSDAY, NOVEMBER 16, 2023

Trump ramping up his next term ... Wrecking crew of lawyers on his team ... Authoritarian agenda ... New season for the Supreme Court ... Gun rights for perpetrators of domestic violence ... Texas prohibits wealth taxes - forever ... Entrenched voting distortions ... The new Speaker - a Christian Taliban ... Roger Fitch files - Psychiatrist, Salon

As the 2024 presidential election approaches, it's beyond belief that, according to some polls, more than half of America's voters prefer an indicted, mentally-unbalanced, narcissistic sociopath who now claims he won the 2020 election in all 50 states. 

Here's an actual statistic: Donald Trump faces seven significant court cases that are scheduled during the presidential campaign season (handy calendar here). They will continue in some form, despite Trump's absurd motions such as the one to dismiss the January 6 insurrection charges. 

Even Aileen Cannon, the oft-criticised Trump-appointed judge hearing the Florida classified documents case, has tired of Trump's dishonest and dilatory tactics.

Surely, many voters will change their minds after Trump's trials and court appearances. 

This month, the former president testified in New York, in the civil fraud case against The Trump Organization, and Trump's family. 

As expected, he behaved erratically, abusing to their faces both the prosecutor, NY Attorney General Letitia James, and the well-regarded judge, Arthur Engoron. 

In bringing civil rather that criminal fraud charges, Attorney General James laid a trap: in civil cases, a  plaintiff can subpoena a defendant to appear and answer questions, a tactic ideally suited to unsettle an evasive or belligerent defendant, even one with a script. It was a trap into which the ex-president neatly fell.

Clearly, Trump was indignant - outraged - that he, Donald Trump, should be called to account in a court of law. In fact, he essentially admitted to even more fraud while on the stand.

Though he won't be a witness in his criminal prosecutions, Trump is also digging holes deeper in the four criminal cases in which he faces a total of 91 felony charges. 

It's the stuff of Trumpen-Schadenfreude. 

Even so, the defendant is busy planning his next term as US president. In addition to personal revenge, Trump wants to pick up where he left off in his authoritarian remodelling of the country. 

He has begun by recruiting a wrecking crew of meretricious lawyers, legal prostitutes so bad that even the Federalist Society won't touch them. 

It's a frightening thought, seeking, rather than avoiding, intellectually-dishonest, lemming-like lawyers to staff a government, but media reaction has been mild. 

The new gang's reinstatement of Trump's dreaded public-service-gutting Schedule F, overturned by Biden in his first days in office, will top the list for party thugs and mischief-minded legal acolytes.

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Voting: a long threatened right

The 2023 supreme court term has opened, producing understandable unease because of the bad cases on its docket. The first of such cases, predicted to be its worst, was a 2nd Amendment, "gun rights" case, US v Rahimi, and concerned the right to keep and carry firearms when subject to a domestic violence order. 

Applying Clarence Thomas's bizarre test from last season's Bruen case, the Fifth Circuit found Rahimi was entitled to access his firearms as there were no comparable restrictions on gun ownership in the 18th-century. 

That's quite true: there were few, if any, colonial prosecutions for domestic violence. 

Rahimi has now been argued, and contrary to expectations it doesn't look good for "gun enthusiasts".  The court may finally be drawing a line on "gun rights". Michael Dorf has more. 

The supreme court will also be hearing a South Carolina redistricting case that could decide the majority in the next congress. The new districting is pretty clearly racist, but since the 2019 supreme court ruling (in Rucho v Common Cause) that partisan gerrymanders are non-justiciable, the Republican legislature has rebranded the districts as merely partisan. 

It's an irrelevant co-incidence that the voters are black; they were  actually targeted for voting Democrat… 

Meanwhile, on the tenth anniversary of Shelby County v Holder, Americans should reflect on the damage caused by one of the most outrageous decisions in US supreme court history, the opinion that judicially annulled the essential section of Lyndon Johnson's landmark Voting Rights Act of 1965. 

The VRA had only recently been reconfirmed by a near-unanimous bipartisan majority of congress; its extralegal invalidation by the supreme court has never been adequately explained.

The immediate consequence of Shelby County was the introduction of state restrictions on voting that are now notorious: the decision is directly responsible for the ten years of voter disenfranchisement that have followed in Red States, and for the gerrymandered legislatures that are able to perpetuate themselves, as  well as pack and crack congressional districts for the benefit of the Republican party.

Although the US constitution famously lacks an explicit right to vote, 49 state constitutions do contain this right. That's why it's important that state supreme courts remain free of partisan control.

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Not in Texas

November's elections in several US jurisdictions actually boosted voting rights, and were a win for Democrats, including the establishment in Ohio's constitution of a right to abortion that had been bitterly opposed by the Republican legislature.

Further south, in the plutocrat paradise of Texas, there were also constitutional amendments on the ballot. 

In a state with 30 million residents, it took less than 2 million voters to embed a prohibition on wealth taxes that will bind future legislatures forever. 

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Mike Johnson, a Louisiana congressman who played a leading role in the legal ploys of the 2020 Sedition Caucus, is the new Speaker of the US House, second in line for president. 

He's also the first "Christian nationalist" to hold the position, the secular republic's first theocrat Speaker. The Washington Spectator has more. 

Johnson: governing by the Bible

Johnson is a former lawyer for Alliance Defending Freedom, the legal hot-house where novel "religious freedoms" are concocted, embellished with phony plaintiffs and forwarded for high court imprimatur.  It's former staff includes extreme Trump judges including 9th circuit judge Lawrence VanDyke, and Texas's US district court judges Matthew Kacsmaryk and Brantley Starr. 

America experienced theocracy, e.g, New Haven Colony (1638-1664), where only male Puritan church members could vote or hold office, and law was based strictly on the bible. 

The federal constitution of 1789 outlawed religious tests, but eight state constitutions still have them. These unconstitutional provisions are unenforceable since a 1961 Supreme Court decision, Torcaso v Watkins. 

Even so, Speaker Johnson believes in religious tests; it seems he intends to consult the bible the "New Haven" way.  

From Roger Fitch and our Friends Down Under

 

The travesty of America's judiciary

ROGER FITCH ESQ • MONDAY, OCTOBER 2, 2023

Transformation of SCOTUS ... Alito and Thomas's ethical voids ... Rorting and stacking the courts in the Red States ... Circuit mischief ... Trump judges on the loose ... Roger Fitch reports from Washington 

After Donald Trump's presidency, no US government institution, however respected, may be considered safe or immutable. 

Perhaps the most striking change has been the installation of a reactionary and theocratic majority on a rogue supreme court.

The court's new term is about to start, with grave consequences likely; with a prospect that the court may claim even more power. 

Perhaps it's time to reflect on the court's transformation under its tiresome Chief Justice John Roberts, in the years leading up to this term. In the view of the veteran court observer Linda Greenhouse, the CJ has already achieved everything he set out to do in 2005.

He had the help of justices who had all worked in Republican administrations (Alito, Thomas, Gorsuch,  Kavanaugh) or participated as loyalist Republican lawyers in Bush v Gore (Kavanaugh, Barrett).

During the CJ's early years, the sleeper cell of Sam Alito (appointed 2005) and Clarence Thomas (1991) lay low, awaiting the moment some timely death (e.g, that of Ruth Bader Ginsburg) might make them part of an originalist majority. 

The Republican Senate's refusal to confirm Obama's appointee Merrick Garland (now Biden's AG) brought forward plans, and the unexpected 2016 election of Trump fully activated the two men and their intractable rightwing agenda - witness last year's full-throated implementation by Alito of Catholic abortion policy (Dobbs), and Thomas's expansive, indeed shocking, gun decision (Bruen).

Justices Thomas and Alito both have shocking ethical standards, but the court has declined to adopt an ethics code. Alito actually claims congress has no power to legislate respecting the court, but that's clearly wrong.

Compounding his own ethics problems, Alito recently gave a controversial WSJ interview refuting a yet-unpublished Pro Publica article about him. The interviewer? A lawyer with business before the court. 

Alito: enforcing Catholic abortion policy on the court 

Thomas's ethics offences are even greater, and arguably impeachable. 

One law prof's suggestion: a declaratory judgment of violations under the federal recusal statute, to "clarify for the voters whether they should accord legitimacy to the high court". 

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The US supreme court's rulings may not have been openly bought, but that can't be said of some of the 31 state and territory jurisdictions with partisan judicial elections; there, political parties and special interests promise that their favoured candidates, if successful, will faithfully alter existing judicial precedents.

A number of state constitutions have embedded in them rights and protections, e.g, personal freedoms and the right to vote, exceeding those in the US constitution. These are regarded by Red State legislatures as impediments to the reordering of society they intend. 

Consequently, following the US supreme court decisions disclaiming any responsibility for abortion or partisan gerrymanders, Red States have resorted to "turning" the state courts whose decisions - based on state constitutions - might, e.g, liberalise abortion or end gerrymanders. 

Recently, such supreme court rebalancing has occurred in Republican Ohio and North Carolina, and Democrat Wisconsin, where the judicial philosophy of the supreme court has been reversed by expensive elections of party-aligned justices. 

The undisguised objective in Republican states is to obtain the state supreme court's blessing for partisan gerrymanders that the US supreme court (in Rucho) found non-judiciable under the federal constitution. 

Such elections don't always bring finality. In Wisconsin, the Republican legislature has a veto-proof majority, and is already talking about impeaching Wisconsin's newly-elected, Democrat-aligned, justice. A vacancy would tie the court and thwart appeals against gerrymanders. 

Racial (as against partisan) gerrymanders remain illegal. Alabama's race-based gerrymander has been knocked back twice, more here, and other southern states will also have to create additional districts with an African-American majority. 

Trump's judicial Ho-Ho 

Democrats could pick up several house seats as a result. Or maybe not: the Trump-dominated Fifth Circuit has intervened on party lines to stay and delay Louisiana's new district. 

Behind this circuit mischief we find James C Ho, a former Texas Solicitor General and perhaps Donald Trump's most dreadful appellate appointment.

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The most appalling federal judges appointed by Donald Trump are in the South, where the 5th and 11th circuit courts of appeal have been stacked with Republican ideologues. 

At the same time, careful and reticent federal district court judges in the two appellate circuits have seen their influence reduced through the appointment of  brash Federalist Society protégés, ambitious and proactive men and women ready to declare executive orders of (Democrat) presidents, and even established Acts of Congress, invalid.

The worst of these Trumpistes have been appointed to single-judge federal districts (e.g, Aileen Cannon in Florida), thus simplifying conservative forum-shopping.

Texas has been the centre of most of this; the state offers a textbook example of the express train that transports "movement" Republican lawyers from elected (attorney general) or appointed (solicitor general) state offices to lifetime judicial appointments on the federal bench.

A previously unremarked Trump appointee in Texas, Brantley Starr (Ken Starr's nephew) has surfaced and is already being called the worst Trump judge in America. 

In one ruling, Starr ordered an airline's lawyers to take "religious liberty training" conducted by the Alliance Defending Freedom. That's the "Christian" litigant systematically rolling back civil liberties, e.g, in 303 Creative v Elenis, last June's fraudulent supreme court decision that licensed discrimination against sexual minorities on the basis of claimed religious beliefs. 

The lawyers obtained a temporary stay.

Starr joins the pungent company of fellow Texan Matthew Kacsmaryk, another "worst judge".  In Alliance for Hippocratic Medicine v FDA (also an ADF case), Kasmaryk struck down the FDA's 2000 approval of the abortion drug mifepristone. 

 Kacsmaryk's appointment met with alarm 

Limitations having run, the Fifth Circuit quickly reversed.

Yet another Trump-Texan, Drew Tipton, attempted to stop an immigration policy at the behest of Texas and Louisiana. As neither state had standing to sue, the supreme court overruled Tipton without reaching the question of states exercising immigration powers or purporting to participate in immigration policy, exclusively a federal matter. 

Neighbouring Louisiana also has an activist Trump judge, Terry Doughty, who has issued an "aberrant" First Amendment decision constraining Biden administration communication with tech companies such as Facebook. 

One journo suggested that Judge Doughty had effectively named himself president. More here.

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With luck, there will be no more Trump judges. Here's an update on Trump-related trials:

•  September 29 - Georgia state RICO case - first guilty plea by a Trump co-defendant;

•  October 2 - Trump's bench trial in NY for civil damages; judge has already called in receivers after entering summary judgment for fraud;

•  October 23 - Georgia RICO co-defendants Chesebro and Powell face trial, and could plead out;

•  January 15 - NYC civil trial to determine the measure of damages for Trump's renewed defamation of the writer E Jean Carroll;

•  March 4 - Trump's DC trial for election-interference;

•  March 25 – tentative date for Trump’s NY State trial for hush-money payments to Stormy Daniels;

•  May 20 - Trump's Florida trial for mishandling classified documents. 

 

From our friends down under at Justinian

 Accused felon at large

Monday, August 21, 2023
Justinian in Donald Trump, Indictment, Roger Fitch Esq, US Presidential election, US politics

The Washington and Atlanta indictments of Donald Trump ... A large number of lawyers as indicted gangsters ... History of unpunished Republican crimes ... First attempt to hold lawless politicians and operatives to account ... Quandaries and implications ... Possible defences ... Roger Fitch files from Washington 

This column occasionally reports on a colourful American politician facing criminal charges in two four US jurisdictions. Some joke that every fresh indictment increases his popularity among his lemming-like followers. The general electorate could be another matter.

In July, a superseding indictment was returned in the Florida federal court where this Donald John Trump stands charged with unlawfully retaining and concealing classified documents. New counts were added for evidence-tampering.

In August, Mr Trump was indicted twice more. That's encouraging: Americans are usually very slow to investigate and prosecute politicians' crimes, especially those committed by Republicans. 

There's a long history of unpunished Republican Party operations: Nixon's treacherous sabotage of LBJ's 1968 Vietnam peace talks in Paris, leading to seven more years of war; interference in Carter's 1979 negotiations with Iran for the release of American hostages; and the outright theft of the 2000 presidential election. 

Although much has been made of Richard Nixon's come-uppance in the 1970s, he was pardoned and never held to account.

The 80s under Ronald Reagan and Bush the Elder witnessed a crime wave, but with the help of judicially-sanctioned meddling in the Independent Counsel's work, only a few of those indicted in the Iran-Contra scandal (e.g, Defence Secretary Caspar Weinberger) were convicted. Most were pardoned by Bush as he left office.

Beginning in 2001, shocking and uncountable crimes were committed under the lawless G.W. Bush, e.g, round-ups of innocent Muslims, CIA torture, and unlawful military detention and trials. 

All these went unpunished under Bush and his successor Obama, who continued the previous administration's shameful and dishonest practice of asserting the shaky state secrets defence in civilian lawsuits by victims, even against complicit third parties.

The charges against Bush Junior's torture lawyers also went unpunished, after a timid DOJ internal inquiry, and the habitual DOJ fixer John Durham gave the CIA a clean bill of health for actual murders in custody.

Given that background, the indictments during August 2023 were big news: this century's first attempt to hold lawless US government officials and their political accomplices to criminal account.

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Disregard for court rules

In Washington, over 1100 people have been charged in the January 6, 2020 siege and occupation of the Capitol. Now, a deadbeat New Yorker living in Florida has been added to the number of DC defendants.

Donald Trump was indicted twice in August, first in Washington, under federal charges filed by the  special prosecutor, and then under state charges in Georgia - where a modest bail of $200,000 has been set. The bond conditions, absent the amount, are here. 

He's facing two other indictments, in New York and Florida; even so, and despite his disregard for court orders, the accused felon has remained free on his own recognisance.

Mr Trump's DC indictment is worth reading in full, adding as it does an additional wrinkle to the January 6 crimes: the fake electors scheme. Sadly, all six of the unindicted co-conspirators are lawyers. 

Lawfare explained the facts and law of the DC indictment and provided a docket watch, while Fintan O'Toole laid out the plot. 

Insurrection has not been charged, thus avoiding endless sham free speech claims by Trump, but he's as guilty of insurrection as the last "president" to be charged, Confederate leader Jefferson Davis.

Conservative law professors agree that insurrection disqualifies Trump from office absent a two-thirds vote of congress lifting his ineligibility under the 14th amendment, and states also have the power to judge qualifications of presidential candidates and exclude the ineligible.

Attention has turned instead to the surprise inclusion of  "section 241", the election interference count derived from an Act popularly known as the Ku Klux Klan law, more here. 

After special prosecutor Jack Smith's federal indictment of Donald Trump for the phony stolen election events, there was some debate as to which of Trump's unindicted co-conspirators masterminded the  "stop-the-steal" hustle after the 2020 election. 

Was it the quack law professor John Eastman (Co-Conspirator 1 in the DC indictment), who wrote this memo, or the dodgy lawyer Kenneth Chesebro (Co-Conspirator 5), who wrote this one? 

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Mafia mobsters prosecuted under RICO law in mid-1980s

The new Atlanta case may throw light on that. The Georgia indictment includes 18 additional defendants, again many are lawyers. There are also 30 unnamed and unindicted co-conspirators. As required by Georgia law, the indictment was signed by the now-endangered grand jurors.

The Times has annotated the indictment. Lawfare has a deep dive, and docket watch. The Guardian and New Republic have more.

In addition to having very effective laws against lying, Georgia has a RICO (Racketeering Influenced and Corrupt Organizations) law, and it's broader than the federal Act. 

The federal RICO was used to convict members of NY's Five Families in the 1985/86 Mafia Commission Trial. The winning US Attorney was ... #2 Georgia defendant Rudy Giuliani.

The indictment is the first to identify Mr Trump and Giuliani as racketeers. The Washington Spectator explores the implications for other prosecutions in the 33 states and two territories who have their own RICO laws: 

"Once Trump and his associates are understood as members of a gang engaged in organized crime" other states "could now consider whether Trump has engaged in a pattern of crimes in their states."  

The Guardian and Emptywheel have more, while Slate imagines an opening statement prosecutor Fani Willis might make to the Atlanta jury.  

Rick Hasen sees race as the biggest difference between the DC and Atlanta indictments. Also significant: the Georgia trial will very likely be televised. 

One defendant, Trump's former White House chief of staff Mark Meadows, filed a motion to remove his case to the Georgia federal court, claiming (as will Trump) that he is immune from prosecution: the state charges amount to "state interference in a federal official's duties". 

Atlanta federal judge Steve Jones, an Obama appointee, denied a summary removal and set the matter for hearing on August 28.

Apparently, the prosecutors Jack Smith and Fani Willis didn't coordinate their investigations into Trump. As a result, Meadows has a dilemma: he was a cooperating grand jury witness in Washington, but he's an indicted co-conspirator in Atlanta, presumably for the same events. 

The two cases may be complementary, but not for Meadows.

Next, lawyers for "President Trump" filed pleadings in DC District Court seeking to (1) stay the Georgia proceedings pending the resolution of special prosecutor Jack Smith's case in Washington (this might succeed), and (2) set a DC trial date of April 2026. 

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Trump: a medical defence

If Trump has to face trial in Washington or Atlanta, what might his defences be? 

Whatever they are, his alleged First Amendment freedom of speech claims won't fly. 

What else might Trump try as a defence? 

A Salon writer imagines a well-founded plea of insanity:

"He is unquestionably insane, either temporarily or for good. Perhaps he's setting himself up to plead diminished mental capacity ..."  

 

From Roger Fitch and our friends down under

 

he infallibility of SCOTUS

ROGER FITCH ESQ • TUESDAY, JULY 11, 2023

US Supreme Court makes it up as it goes along ... Contrived cases to fit a reactionary agenda ... Plaintiffs with no standing ... Further indulgence for religious discrimination ... Under-equipped judges on a rampage ... Roger Fitch reports from Washington 

The supreme court is in free-fall, an outlaw court making extrajudicial decisions. Spurious or controversial legal doctrines, some invented by the court, are deployed to achieve desired results: usually, the rolling-back of progressive legislation. 

A court that once heard 200 cases a year now hears less than 60, yet far from exercising any judicial restraint, the justices seem to relish "culture war" cases that fit the Catholic majority's rightwing agenda.

The cases that the court now agrees to hear, often manufactured by special-interest groups, are designed to give the conservative majority constitutional "cases or controversies" with which they can overturn policy decisions they dislike, and they're not afraid to manipulate standing and jurisdiction in order to hear them.

A common characteristic of these decisions has been the confusion they cause, but more than that, they bring into question the court's legitimacy. There's an apprehension that the court is becoming a super-legislative body from which there is no appeal, infallible because final, and it's borne out by the final decisions of this year's term:

Habeas corpus

The court began by dashing the hopes of prisoners, closing down appeals based on claims of actual innocence, in the appalling Jones v Hendrix, more here.  

"Free speech" (faith-based discrimination)  

The most shocking case of intellectual dishonesty was 303 Creative v Elenis, another "religious" attack on Colorado's anti-discrimination laws, the subject of last term's Masterpiece Cakeshop case. 

Announced on the court's final day, 303 Creative presented a fabricated "controversy" with contrived standing. 

Though dressed as a free speech case, it was designed to expand religious indulgence. It contains, moreover, the seeds of a new separate but equal doctrine in public accommodation law.   

It also represents the first supreme court decision based on a hypothetical: the plaintiff suffered no injury. As Justice Gorsuch acknowledged in his majority opinion, the plaintiff had not yet offered the service of designing websites for weddings, but "she worries that, if she enters the wedding website business, the State will force her to convey messages inconsistent with her belief that marriage should be reserved to unions between one man and one woman". 

The day before the decision was announced, it was revealed that the speculative projected harm had been based on an apparently forged email enquiry from a potential client, more here. 

The alleged "offender" has come forward; he's married to a woman, doesn't know the plaintiff, and never sent the purported email seeking the preparation of a website for a gay wedding. In fact, he's a website designer with no need of such services. 

Affirmative action  

Blum: contrived a case to fit his anti-affirmative action agenda

After 50 years, affirmative action in university admissions has been found unconstitutional. The case involved admissions at the Ivy League Harvard College and the "Public Ivy" North Carolina. 

The case, cynically-contrived by the rightwing gadfly Edward Blum, produced a plaintiff in the Asian-based Students for Fair Admissions, which had no real standing: it failed to produce any Asian student alleging exclusion due to African-American or Hispanic preference - in fact, Asians make up 30 percent of Harvard graduates.

Justice Ketanji Brown Jackson, who's a Harvard Overseer, recused in Harvard, but she had a full-throated dissent in the UNC case. The Nation and TPM have more. 

Republican-led states are meanwhile busy ending race-backed academic scholarships that supported their citizens of colour.  

Student loan debt relief 

Another case in which the plaintiff had no colourable claim to standing was Biden v Nebraska, which invalidated a Biden executive order based on an identical emergency (Covid) and identical education legislation (HEROES) used successfully by Donald Trump.

The Higher Education Relief Opportunities for Students legislation gives the US Education Department special powers to change or waive rules of federal student loans to respond to a national emergency. 

Trump's decision to change (defer) repayments was never questioned, and by any fair reading of the statute, the Department retains the power to waive student loan repayments.

Even so, Biden's regulations, using identical emergency powers and waiving individual repayments of up to $20,000 of student loan debt, were struck down, in a case brought by a plaintiff without standing or injury. 

As one headline put it, "Supreme Court Decides Fake Plaintiffs Are Good Plaintiffs" and followed with this analysis:

"Approximately 43 million Americans were made between $10,000 and $20,000 poorer today (plus interest) thanks to six Republican lawyers from Harvard and Yale. They decided that a program based on a statute intended to modify student loan balances in the event of an emergency could not modify student loan balances in the event of the COVID-19 emergency. And they did it by claiming that a plaintiff was injured by this program, when that plaintiff did not petition the Court over its injury, had no involvement in the case, and would likely not be injured by the program." 

Although the decision to offer debt relief was entirely beneficial and no student was injured, six Republican states banded together and agreed on a state plaintiff, Missouri, who asserted injury to an independent state body administering student loans, MOHELA, not a party to the lawsuit.

From The Buffalo News

None of the plaintiffs had standing, but the Republican majority on the court didn't let standing stand in their way; Missouri was found adequate for the policy reversal the court intended, based on the absurd claim of a hypothetical loss (of student revenue) by the state-chartered loan administrator.

In fact, MOHELA, an independent public entity, refused to participate in Missouri's case; any assistance was provided under legal compulsion. However, as Justice Kagan's dissent noted, MOHELA was the proper plaintiff. The state had no standing to even bring the case. 

The court majority ultimately deployed the diabolical, recently-rediscovered "major questions doctrine" to strike down the Biden regulations. According to the Chief Justice: 

"The authority to 'modify' statutes and regulations allows the Secretary to make modest adjustments and additions to existing provisions, not transform them."  

It was a cruel and unnecessary decision. 25 million students applied for the $400 billion in debt relief offered. But, as NYRB observed, "The crimes of the rich are more readily forgiven than the debts of the poor".

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There was one bright note in the term's June decisions: the court ruled against North Carolina in the closely-watched Moore v Harper, the case testing the "independent state legislature" theory.

ISL posited that, in drawing federal election districts, the decisions of a state's legislature trumped its state constitution and court decisions interpreting it. 

CJ Roberts found otherwise, with the conservative Justices Kavanaugh and Barrett joining the majority.

Many were pleased, but there are premonitions of future harm (e.g, in the 2024 elections).There's danger in any opinion that "vindicates" the dicta in the discredited and seldom-cited Bush v Gore. 

FROM ROGER FITCH AND OUR FRIENDS DOWN UNDER

 

Deep doo-doo

ROGER FITCH ESQ • TUESDAY, JUNE 13, 2023

Trump indictment ... Top secret, purloined documents ... Fingered by his own people ... More indicting to be done ... Dangerous crim running for president ... Latest from the Supreme Court ... Clarence Thomas weighs in on one of Harlan Crow's cases ... Roger Fitch reports from Washington 

"How many indictments does it take to bring down a cult leader?" - The Intercept 

There's not much news to report from the US, other than the federal indictment for espionage of a former president, and the apparent indifference with which it was greeted by his mentally or morally-deficient supporters.

As Salon observed apropos the MAGA response to Trump's dinner party with "Hitler fanboys": 

"If anything, Republican voters keep rallying to his side, predictably pleased that Nazi-snuggling has the liberal-triggering effect they crave." 

Still, Espionage Act violations? Shouldn't that disturb them?

Just Security had already provided a model prosecution memorandum analysing six federal crimes that could form the basis for charges against Trump who, in the event, was charged with seven crimes. 

The indictment, which included charges against his former While House valet and loyal acolyte, Walt Nauta, ran to 38 counts.

Even before charges had been filed in a Florida court (and the arraignment randomly assigned to the horrible Trump-judge Aileen Cannon), the Trump-backlash began; as TPM put it: 

"The GOP speaker of the House, GOP senators and representatives, the leading GOP candidates for president, and the whole right-wing Wurlitzer launched a furious attack on the rule of law."

In fact, Trump faces very serious charges under the espionage laws; as George Bush père would say, he's in deep doo-doo, and his prior statements about classified documents don't help him. 

Walt Nauta: collar attendant and valet

The indictment itself (a "speaking indictment") cites a 2018 quote in which Trump railed against - 

"... the practice of former officials maintaining access to our Nation’s most sensitive secrets long after their time in Government has ended. Such access is particularly inappropriate when former officials have transitioned into highly partisan positions and seek to use real or perceived access to sensitive information to validate their political attacks. Any access ... to ... secrets should be in furtherance of national, not personal, interests."

That quote, seized upon by savourers of hypocrisy, concerned Trump's threatened revocation of the security clearance of Obama's CIA director, John Brennan, now enjoying considerable Schadenfreude.

Just Security has more on the purloined and withheld "MAL" documents, named after Mar-a-Lago, the tasteless lair of America's clase-baja ex-presidente. 

It seems that it was at MAL that the accused may have been hoisted by his own security cameras, and indeed his own employees, some of whom seem to have dobbed him in. 

The investigations into the theft of government documents (many classified or top secret) had recently intensified, with new layers of criminality detected by the special prosecutor Jack Smith. 

Even as Smith investigated a smorgasbord of possible criminal offences, he received unexpected assistance through Trump's wildly-incriminating boasting about his actions. 

Smith: detected new layers of criminality 

There's still the civil fraud case against Trump in New York, with a trial scheduled for October, and Trump is also likely to be criminally indicted again, probably this summer in Georgia. 

Even so, Mr Trump, confident in the bottomless credulity of his followers, vowed he will continue his campaign for president, even if convicted of the federal charges in Florida. 

It's risky for democracy: the danger of having a convicted criminal as president, one who won't hesitate to pardon every crime from 2020 and 2021, and purge every Justice Department and FBI official he bears a grudge against, yet a rematch of Trump and Biden looks all upside for Joe Biden. 

Perhaps 74 million-(very)odd Americans did vote for Trump in 2020, yet surely, a few adherents to his cult will awake from their mass delusions, their folie, as a result of the latest charges.

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Supreme Court justice Louis Brandeis once said: 

"We can have democracy in this country, or we can have great wealth concentrated in the hands of a few, but we can't have both." 

Little did Brandeis anticipate that judges would become the target of that great wealth, hollowing out democracy from the place of last resort. He would have known conservative politicians who became judges, but perhaps not judges who became politicians on the bench. 

The present court has six political justices, and this final month of the court's term is being closely watched to see what role politics plays in the pending cases, notably, the technically-moot test case of the newly-invented Independent State Legislature Theory.

If ISL is recognised, then, as Justice Robert Jackson wrote in the internment case Korematsu: 

"... the principle ... lies about like a loaded weapon ready for the hand of any authority that can bring forward a plausible claim of an urgent need." 

More here on Moore v Harper and why it should be dismissed. 

Robert Jackson: warned about the "loaded weapon" 

There have been surprises from the court, some indication that the majority are pulling back from the conservative-agenda brink. To the surprise of many, section 2 of the Voting Rights Act, the prohibition against race-based gerrymanders, has been maintained.

Ten years ago, in Shelby County v Holder, Chief Justice John Roberts nearly destroyed the VRA, a goal of his since his days as a Reagan administration lawyer. 

Now, in Allen v Milligan, Roberts has rescued an important remnant of Lyndon Johnson's signature 1965 voting rights legislation. 

Sadly, the court only did so after manipulating the decision to fall after the 2022 election cycle, in which its implementation might have resulted in enough additional seats to give Democrats control of the House.  

Another surprise was the Talevski decision, a Medicaid case that upheld the mechanism for beneficiaries of federal spending programs to sue if states violate their rights.

There was bad. After an attack on unions that attracted liberal support (Glacier Northwest v Teamsters), the court gutted wetlands regulations under the Clean Water Act. The court had already gelded the Clean Air Act, last term, in West Virginia v EPA.

Justice Alito's majority opinion in the wetlands case was so extreme that Brett Kavanaugh declined to join it, and the remaining 5-4 majority could not have occurred without Clarence Thomas's vote. 

Shortly after the vote, it came out that Thomas's patron, the Texas developer Harlan Crow, had been heavily involved in bringing the case and supporting it - not least through amicus briefs of organisations in which he plays a significant part. 

Alito: extreme opinions 

Crow has other causes. There's to be a new challenge to the Chevron precedent. That's the doctrine that the courts should generally accord deference to federal agency decisions as expressed in their policies, regulations and rules. 

Overturning this 1984 precedent, once supported by Clarence Thomas, has long been the holy grail of corporate America including Harlan Crow.

There's meanwhile much to fear from last term's Dobbs decision withdrawing, for the first time, a constitutional right. ProPublica has a data base of all the constitutional rights that may be on the chopping board.