From Roger Fitch and our Friends Down Under at Justinian....

 

Disorder and decay

ROGER FITCH ESQ • MONDAY, SEPTEMBER 19, 2022

Trump's attempted document theft ... Missing pages from confidential files ... Trouble for former president's lawyers ... Patsy judge's flawed reasons ... State judges up for election in November ... Republicans working on the judicial stack ... From Our Man in Washington, Roger Fitch 

"Plaintiff has no property interest in any Presidential records (including classified records) seized from the Premises. The Presidential Records Act provides ... that '[t]he United States shall reserve and retain complete ownership, possession, and control of Presidential records' ... Plaintiff [does not] offer any ... colourable argument that he has a property interest in any Presidential records seized ... Plaintiff's Motion, in fact, asserts that '[t]he documents seized at Mar-a-Lago ... were created during his term as President' ... precisely the types of documents that likely constitute Presidential records. 

Because these records do not belong to Plaintiff, [he has] no right to have them returned. And because Plaintiff has no such right, this Court should not appoint a special master to review Presidential records for the purpose of entertaining potential claims of executive privilege ... the former President cites no case ... in which executive privilege has been successfully invoked to prohibit the sharing of documents within the Executive Branch." - US response, Trump v US

Even if Donald Trump escapes punishment for e.g, insurrection, he must be guilty of something: consider the example of the American gangster Al Capone, undone by Internal Revenue. While tax evasion is likely among Trump's countless crimes, his downfall may be the National Archives (NARA), wielding the Presidential Records Act.  

After Trump left the White House, NARA discovered that important official papers belonging to the Archives were missing, and asked for their return. When the requested documents were not provided, but lied about ("only news clippings"), moved about and hidden, the Justice Department was called in.

After months of Trump obstruction, DOJ obtained a search warrant for Trump's hotel-home, Mar-a-Lago, and retrieved a sizable tranche of government papers, many secret and/or highly classified, that the ex-president had secreted and retained. 

A damning affidavit supported the government's search, which yielded "sensitive" documents afterwards compared by Trump lawyers to "overdue library books". 

American media initially stressed the "unprecedented" search by the FBI of (gasp) a former president's home, assuming some deference was due. That changed when 11,000 government records were found in Trump's possession and 90 empty folders, half of which were marked confidential.

What's actually unprecedented is the wholesale theft of government documents by an outgoing president, 320 of them classified. Sensitive government documents may have disappeared. 

Top secret documents found in Trump's Mar-a-Lago office (pic DOJ)

Missing items may have been destroyed, shared, or hidden somewhere new. 

No one knows Trump's motives in appropriating the documents found. Was it espionage, blackmail and intimidation, leverage, greed (marketable documents), obstruction of justice (quite likely) or simple hoarding? 

Whatever it was, Dana Milbank agrees with the former president: he should be treated just like Hillary. 

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If only Trump could afford proper lawyers, like the ones from Jones-Day, the large and reputable law firm that staffed his administration. They're unavailable now. 

Nor does he enjoy the services of his intensely-political and tractable attorney general, William Barr, whose secret 2019 memo absolving Trump of  eleven obstructions of justice in the Mueller Report has just been published. 

Philbin: subpoenaed for January 6 probeTrump has lost White House Counsel Pat Cipillone and his deputy, Patrick Philbin, defence counsel in the second senate impeachment. Philbin and Cipillone are busy talking to the January 6 Committee; luckily, they haven't faced the sort of debriefing Philbin approved for George Bush's "terrorist suspects". 

The January 6 Committee also cost Trump the services of the ex-law professor John Eastman, who's been forced to hand over documents on which legal privilege was claimed, but contained evidence of likely crimes. 

Eastman (the subject of multiple ethics complaints) kept meticulous notes; revelations in court filings have been damning for Trump.

Mr Trump can still look to a tribe of MAGA lawyers to carry out dubious initiatives, but a group called the 65 Project is pursuing disciplinary actions against those lawyers who have acted unethically. 

The organisation identified 110 lawyers in 26 states who "agreed to participate" in plots to overthrow the 2020 election, some involving crimes, e.g, concocting sham slates of presidential electors (more here). Some lawyers even served as fake electors.

For the Mar-a-Lago search response, Trump relied on a crew that included TV host Christina Bobb, parking garage lawyer Alina Habba and other D-list lawyers, plus two experienced lawyers, Evan Corcoran and James Trusty. 

Trump's lawyers need to know which documents incriminate Trump, so they can assert 4th Amendment claims under Rule 41. 

After forum-shopping Florida for a sympathetic judge, they found the Trump-appointed Aileen Cannon; she obligingly ordered an unheard-of review of the documents (property of the executive branch under the PRA) by a special master.

Trump's initial motion in Cannon's court partly backfired in that Corcoran and Bobb came under DOJ scrutiny for misleading statements, but following a hearing, Judge Cannon granted the motion for a special master to review, for executive privilege, documents DOJ had already perused for legal privilege. 

This ruling, described as "incredibly flawed", put an ex-president with unclean hands in a privileged position, and was widely criticised (also here). 

Florida "Trump judge", Aileen Cannon

DoJ appealed for a stay; Trump's muddled response called the matter a "document storage dispute", and suggested classified documents became personal with Trump's annotations. 

Cannon appointed the special master, and kept the injunction against DoJ using any documents (including the 100 classified ones) for investigative purposes. DoJ appealed that ruling here.

The ex-president meanwhile continues to obstruct justice, promising to pardon everyone who participated in the January 6 insurrection (the Constitution contemplates pardons for insurgents, to quell unrest, not to "support insurrectionists and reward violence").

If Trump is indicted, what extreme response might result? The New Republic worried: 

"If an indictment is a fait accompli, then we're in for something we've never seen in this country ... a former head of state potentially leading a civil war and/or committing open treason by using state secrets for leverage." 

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Judge Cannon epitomises the partisan disorder Donald Trump brought to the federal judiciary. The Trumping of federal courts has been a disaster, but at least federal judges aren't elected. 

In many states, judges are elected (and unelected), and partisan lawyers are groomed for judicial elections where wildly-expensive advertising is funded by special interests, sometimes potential litigants. 

32 states with elected supreme court judges will be voting on them this November. Many such states are ruled by Republicans striving to ideologically-stack their highest courts. 

Leonard Leo: Republican court stacker

The man behind these efforts is Federalist Society functionary Leonard Leo, who, more than anyone else, is responsible for pushing Republican party loyalists and ideologues into every level of the federal judiciary. 

Leo's target is now state courts, and his "Freedom Trust" is funded by the largest political contribution in American history, $1.6 billion in dark money from an until-recently undisclosed donor, Barre Seid (more in Rolling Stone).

Is this a great country, or what? 

From Roger Fitch and our Friends Down Under at Justinian.

 

Primary colours

ROGER FITCH ESQ • MONDAY, AUGUST 15, 2022

Democracy US-style ... November elections where Big Lie candidates abound ... Key states in the grip of Trump-nominated electoral officials ... Hundreds of new state laws to reshape the vote ... GOP plan for permanent minority government, with assistance from the Supreme Court ... Trouble in wait for Republicans' Pravda ... Roger Fitch's reports from our Washington bureau  

President Biden has had a legislative victory, despite Democrats struggling with a small house majority and not-quite-majority senate. The upper house, in nominal Democrat control, has been held hostage by Senators Joe Manchin and Kyrsten Sinema. 

Republicans had come to rely on the two "Blue Dog" Democrats to obstruct Biden's legislative agenda, and were taken by surprise when the two voted for a reduced remnant of the key Democrat infrastructure bill, the optimistically-renamed Inflation Reduction Act.

There were liberal jokes that Manchin had shocked Republicans by revealing he's a Democrat, but the conservative Bulwark was all praise for Manchin's manoeuvres. 

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The party pre-selections for this year's November elections are now largely complete in US states, and it's clear the paranoid fringe is becoming the party establishment in most Republican-controlled states, where Donald Trump's election-denying supporters have chosen the nuttiest, coup-supporting, election-liars among their party's appalling range of candidates - some of whom received covert Democrat assistance. 

The Democrats' controversial gamble assumes that genuinely crazy "MAGA-loon" candidates will repel independent voters and be easier to defeat in November; Republicans meddle in Democrat primaries for opposite reasons, spending to defeat progressive opponents. 

The tactic may be working for Democrats in deep-blue Maryland, where the craziest Republicans standing for governor and AG have won pre-selection, and it may work elsewhere, now that the contents of Donald Trump's safe have been revealed.

Already-tainted Republicans, like Wisconsin's Ron Johnson, perhaps the most detested US senator (after Ted Cruz) and an unashamed insurrectionist, could lose to a centre-left Democrat, Lt Governor Mandela Barnes, although Wisconsin remains emblematic of America's two-party decline. 

There's a danger in newly-minted Republican cranks, e.g, in Pennsylvania, where the TV personality Dr Oz (Mehmet Oz) could win a senate seat. 

Missouri's senate primary perplexed Trump cultists, as their hero couldn't decide which of two dreadful Erics to support: the disgraced former governor and wife-beater Eric Greitens, or the current AG, Eric Schmitt, who joined in frivolous and baseless lawsuits to overthrow the 2020 election - (Schmitt won). 

A greater worry: the number of overtly partisan candidates for "secretaries of state", i.e, state election administrators. Big Lie candidates for such offices dominated this year's Republican primaries. 

Using the "stolen elections" pretext, candidates for state election administrators obliquely promised to throw the November elections for Republicans, and many of these candidates won party pre-selection.

Alarmingly, Republicans in Arizona, Michigan, Nevada and Pennsylvania chose Big Lie candidates for offices that regulate or rule on elections, based on the hope they would conduct elections for the benefit of Republicans. These nominees will be well-placed to tamper with the presidential vote in 2024 if they win office this November. 

Dr. Oz and Doug Mastriano: the odd couple

In Pennsylvania, an actual participant in the January 6 insurgency, the bonkers Doug Mastriano, won the Republican nomination for governor, putting him in position to flip his state's electoral votes in 2024 to Trump or his surrogate. 

As governor, Mastriano could appoint an elections "secretary of state" guaranteed to produce the results Republicans want; and as a January 6 insurrectionist, he ought to be barred from office under the 14th Amendment. 

Kris Kobach won the Republican nomination for Kansas attorney general. Kobach previously served as a  secretary of state, acquiring a reputation as perhaps the most partisan of state election officials. He was in constant strife with the Obama administration for his efforts to purge voters and unlawfully require proof of citizenship; he can be counted on for political mischief if elected. 

Republicans sow distrust in elections themselves: some of their election officials cheat in their own party's primaries, refusing to certify results they find uncongenial, and the Big Lie candidates who lose claim Republican rivals cheated. 

An (indicted) county clerk standing for Colorado secretary of state paid $250,000 for a recount of a primary election she lost by 14 points. She picked up 14 votes. So did her winning opponent. 

In total, more than 100 Trump-endorsed Big Lie supporters will be Republican candidates for office in the November general elections. Some of them were Condorcet losers in an awful run-off system where the last one standing wins; the NYT reported on one such Congressional primary in Ohio. 

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Manufacturing partisan and/or racist gerrymanders is standard practice in Republican legislatures and, surprisingly, ostensibly-independent judicial districting commissions can be hijacked by political parties. 

Rusty Bowers: scalped

In Ohio, a Republican-controlled elections commission abetted substantial legislative gerrymanders. The US supreme court is allowing them to be used in this year's elections, despite Ohio's highest court finding the proposed electorates unconstitutional seven times. The Republican-aligned supreme court's abuse of interim orders (the "shadow docket") is to blame. 

The ruling that the districts are unconstitutional still stands - for future elections. 

Georgia, Alabama and Louisiana will also be allowed to use unconstitutionally-gerrymandered districts in November's election, leaving appeals to be sorted out in 2023. As election law expert Rick Hazen noted, "states are getting one free election before they have to change their rules".

It's a supreme court degradation of democracy that will only benefit Republicans in this year's elections.

With the US supreme court having effectively repealed most of the Voting Rights Act 1965, Republican jurisdictions are introducing a variety of racist voting restrictions, e.g, Georgia eliminated 75% of drop boxes in places where blacks live and attempt to vote.

In the run-up to November elections, Republican-ruled states have enacted over 100 new laws to penalise and shape voting. Sixty of them are felonies. More here.

There is one last strand in the Republicans' plot for permanent minority government: the spurious theory of "the independent state legislature". The supreme court will consider ISL in an October term case. 

It's the astonishing, newly-invented, notion that a state legislature's electoral decisions take precedence over the state's executive government and its highest court's interpretation of the state constitution.

Some Republican legislative leaders such as house speakers remain honourable, and Donald Trump has accordingly attacked them, in Wisconsin, and in Arizona, where he has just obtained the scalp of Rusty Bowers, the state's Speaker of the House who testified before the January 6 house committee.

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America's Pravda

In the wake of a new book on Republican destructionists and the religious nuttery that fuels it, some media are revisiting the sources of today's malevolent Republicanism: the 1994 rise of Newt Gingrich, and the 2000 Brooks-Brothers Riot.

Big-Lie-backing media are beginning to suffer for their loyal Trumpism: the rightwing network One America seems headed for the ditch, more here, and a long-overdue reckoning for the Republican Pravda, Fox News, may be at hand. 

Perhaps too late, Rupert Murdoch has trimmed his sails, ending Trump-promotions on Fox and turning both the upmarket Wall Street Journal and seedy NY Post against Trump's crimes. 

FROM ROGER FITCH AND OUR FRIENDS DOWN UNDER....

 

The Revolutionary Tribunal

ROGER FITCH ESQ • TUESDAY, JULY 5, 2022

The US Supreme Court has become a Republican law enforcement tribunal ... Abortions, guns, religion, environment ... Cherry-picked legal reasoning ... Historical inaccuracies ... Worse to come ... Same sex marriage in Texas ... Washington correspondent Roger Fitch files 

"[I]n future cases, we should reconsider all of this Court's substantive due process precedents, including Griswold [contraception], Lawrence [same-sex relationships], and Obergefell [gay marriage] ... Because any substantive due process decision is 'demonstrably erroneous' ... we have a duty to 'correct the error' established in those precedents".
Clarence Thomas, concurrence overruling Roe v Wade. 

"The majority has overruled Roe and Casey for one and only one reason: because it has always despised them, and now it has the votes to discard them. The majority thereby substitutes a rule by judges for the rule of law." 
Dobbs dissent. 

"They did it because they could. It was as simple as that."
Linda Greenhouse.

The supreme court's first full term with three Trumpistes ended with a week from hell.

No longer a court, it's become a revolutionary tribunal, a Comité de Salut Public of six instead of twelve. 

Six radical justices, led by Alito and Thomas, achieved a trifecta: public funding for religious schools (the First Amendment separation of church and state notwithstanding), unlimited guns on the streets of "blue" states (despite long-standing regulations in those states) and then, the greatest prize of all for dutiful evangelicals and right-wing Catholics, the end of legal abortions in Republican-ruled states, whether regulated, medically-required or any other reason, including rape and incest.

The abortion decision, Dobbs v Jackson Women's Health was the worst; as feared, Justice Sam Alito overruled Roe v Wade (1973), the case establishing abortion rights. For the first time, the court withdrew an established constitutional right. Cruel persecutions may follow.

The momentum for overruling Roe was recent, following the Republican sweep of state legislatures in 2010, yet in 12 years, a religious minority turned the court.

Dobbs' basis in US history and law was shaky. The Post's Dana Milbank was struck by the majority's inconsistent embrace of the 13th-century legal treatise by the misogynist Henry de Bracton to justify an abortion ban, one day after the same justices rejected, in the gun-carry case, the relevance of the 13th century Statute of Northampton, an English law that was actually adopted in American colonies.

The New Republic and Slate predicted dire flow-on consequences. Is this where Sam Alito and Clarence Thomas are headed, post-Dobbs, an America where multiple rights outlined in the constitution, and especially the 14th amendment, are threatened by a partisan judicial philosophy?

It's unclear if this determined supreme court clique will green-light the inevitable efforts by abortion-banning states to interfere with the FDA-approved abortion drugs used in half of the abortion treatments in the US. The states may not have the power to ban drugs approved and regulated by the FDA, which can use its regulatory powers to pre-empt state interference ("cover the field").

Other options include use of federal facilities or tribal land in restrictive states. 

The same six justices decided the schools case from Maine, Carson v Makin, where the Catholic church and its fundamentalist allies finally achieved their long-held goal of forcing state support for religious schools.

The First Amendment's religious clause is clear: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." 

In the militant Carson decision, however, a theocratic majority turned separation of church and state on its head, dismantling the Establishment clause in order to privilege Free Exercise. 

A prescient Maine anticipated the court's Christian mischief, with a cunning plan, apparently successful, to deter the Carson plaintiffs: a recently-enacted state law requires private schools who seek public money to agree to the non-discrimination laws applicable to public schools, as a condition of funding. 

Another supreme court religious incursion into education in June, Kennedy v Bremerton School District (the "praying-coach case"), won't be so easy to fix. 

The day before Dobbs, the same six justices, led by Clarence Thomas, issued an historically-false and maximalist gun-use decision, in New York State Rifle and Pistol Association v Bruen. Legal comment criticised the peculiar historical methodology and cherry-picked history in the "handgun-carry" opinion.

State governments might work around the nihilistic Bruen decision by using Maine's model: take Justice Thomas's statement that guns can be banned in "sensitive places", and expand the list to include peaceful assemblies, transport and much more, as New York just did. Gun-carrying may require prohibitively-expensive liability insurance. 

The court compromised other rights in Egbert v Boule and Vega v Teko; the latter weakened the Miranda warning. 

Clarence Thomas: having fun

Landmark tribal rights only recognised in 2020 in McGirt v Oklahoma were clawed back by the newly-constituted court in Oklahoma v Castro-Huerta. 

The supreme court saved its most consequential decision for its final day. In 2007, Massachusetts v EPA held that the Environmental Protections Agency had a congressional mandate to regulate greenhouse gas emissions, under the Clean Air Act 1970 . Now, before the Biden administration even issued regulations, the EPA's powers were decimated, in a rare and suspect use by the court of the "major questions doctrine", i.e, the non-delegation principle.

West Virginia v EPA's  fallout will be cataclysmic, handcuffing Biden's climate efforts; unobtainable new legislation will be required before the administration can begin implementing ambitious climate-control policies first proposed in Obama's 2015 Clean Power Plan. More here and here.

The court's last opinions included two favouring Democrats: the court allowed President Biden to end the Trump policy requiring asylum seekers to remain in Mexico while their applications were considered, and it also upheld, over religious claims, a New York vaccine mandate.

The court's remaining targets include what's left of the Voting Rights Act 1965. Judging from recent shadow docket orders, racist gerrymanders will be permitted. 

Little of the VRA survives, nine years after Shelby County v Holder eliminated the core of the near-unanimously re-enacted Act, based on CJ Roberts' claim that racial discrimination in American elections was a thing of the past.

Also on next term's docket: the terrifying new "independent state legislature" theory. More here.

And so a "June of doom" ended the 2021 court term. Statistically, it was the court's least productive term. 

Justices well to the right of Americans imposed and reinforced minority rule. 

Republicans now own the court.

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The 100% Republican Texas Supreme Court quickly revived the state's defunct 1925 abortion ban. 

Now, inspired by Justice Thomas's suggestion in Dobbs that same-sex relations and marriage be reconsidered, Ken Paxton, Texas's long-indicted, soon-to-be-disbarred AG, the worst lawyer in Texas, says he's ready to enforce the dormant state sodomy law that was struck down by the US supreme court in Lawrence v Texas, precursor to Obergefell. 

Paxton is getting worked up about nothing: the earliest-recorded same-sex marriages in North America, described by the European Cabeze de Vaca in 1542, were among Texas men.  

From Roger Fitch and our friends down under at Justinian

 

SCOTUS hollows out America

ROGER FITCH ESQ • TUESDAY, MAY 31, 2022

US Supreme Court ... Overturning Roe v Wade and other travesties ... Using religious beliefs to alter secular law ... Gutting civil rights remedies ... Looser gun regulations ... The malignant Fifth Circuit ... From Our Man in Washington, Roger Fitch 

"…[I]t's time to discuss religion whether we like it or not, because it's no longer knocking on the door: Sam Alito just sent it in the house with a no-knock warrant and stun grenades that threaten to catch the place on fire" - Thom Hartmann

With Trump gone, the focus in Republican psychopathology has turned to individual supreme court justices, e.g, the ethically-challenged Clarence Thomas, yet one should never forget his fellow-traveller, Sam Alito, because Justice Alito is one angry man. 

There's been an unprecedented leak of Alito's draft majority opinion in the forthcoming abortion decision, Dobbs v Jackson Women's Health, set to overrule Roe v Wade, and the justice's grasp of history has been faulted: resurrecting ancient common law, he applies a legal narrative more consistent with the 17th century than a US history with remedies for "quickening".  

Some see an intellectually-dishonest exercise designed to mask Alito's orthodox, powerful, but legally-irrelevant Roman Catholic beliefs: consider his alarming footnote on a shortfall in adoptable infants. 

It seems a foot in the door for a faith-based system in the US where religiously-defined morality displaces law, a nation where religious adherents become the most sympathetic plaintiffs before a court that intends to use religious belief to alter secular law.

Overturning Roe v Wade is, in this analysis, but one front in a religious war against America, and the draft opinion suggests that the conservative justices don't plan to stop with Roe. The impression that they don't mind being an extension of the Republican Party has lawyers wondering what's coming next. 

Dobbs will have consequences, as many civil rights will be threatened, e.g, same-sex marriage. The leak itself may affect decisions in other cases: e.g, guns and environmental protections..

Most fundamentally, the Dobbs draft endangers the right to privacy first formulated in 1890 by the revered future supreme court justice, Louis Brandeis, and the 1923 decision adopting it. 

Alito: intellectually dishonest

According to law prof Melissa Murray: 

"A decision overruling Roe v. Wade would threaten an entire line of jurisprudence rooted in the 14th Amendment's guarantee of liberty ... [going] back to a 1923 decision guaranteeing parents the right to raise their children free of undue state intervention, and it includes the right to marry, the right to engage in adult sexual relationships and the right to use contraception." 

Besides birth control, medical assistance in pregnancy is in question, even after miscarriages, and creation of life in vitro. 

Sherry Colb believes IVF treatment won't be a problem: for Alito: 

"... women are soil where men can plant their seeds, and soil has no right to uproot the plants that start growing. People who seek IVF, by contrast, do not challenge the role of women in our society. IVF places women in a state of pregnancy, which is where [Alito] wants them."

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Even before the "abortion leak", the supreme court began gutting civil rights remedies: at least five radical decisions are already out. 

The court upheld Ted Cruz's leveraged buyout of his senate seat, where he "loaned" himself the purchase price, and investors repaid him after success, a scheme characterised as "streamlining the process for bribing senators". 

It was another case of the court "weaponising" the First Amendment to knock out campaign finance restrictions, more here. 

Cruz: owned by his campaign investors

Money talks, and has a constitutional right to do so, never mind where it comes from or the circumstances in which it's paid. 

While "green-lighting political corruption", the court made immigration more difficult. In Patel v Garland, a decision by the court (Gorsuch dissenting) made it harder to rectify immigration injustices.

Criminal justice also took a hit. In Shinn v Martinez Ramirez, the court effectively decided that death row prisoners "don't deserve competent lawyers", with the Republican majority further hollowing-out habeas precedents, more here. 

Michael Dorf and Liliana Segura commented on the selective treatment of precedents by the court.

Anti-discrimination law was not left undisturbed. In Cummings, the court struck out liability for emotional distress damages, making it easier for employers to discriminate. However, shortly after the opinion was released, it was discovered that a 2009 amendment to the federal Rehabilitation Act at issue provided just such relief. 

All parties involved had been unaware of the mistake. A petition for rehearing has been filed and the court should vacate its decision, but will it?

What's next this term?

Notwithstanding the school shooting in Texas and the arguably sordid origins of the Second Amendment, the court is almost certain to broadly expand "gun rights" by loosening effective arms regulations in those states which (unlike Texas) have effective and long-standing gun laws. 

It's part of the lust for unfettered access to guns for personal use, outside a military or defensive context or demonstrated need, a public  mania first sanctified in the appalling Heller decision (2008). 

More guns, less regulation

The early cases in this court's judicial activism centred on city and state laws and regulations, but more recently the astonishing Shelby County v Holder (disembowelling the near-unanimously re-enacted Voting Rights Act 1965) and Citizens United v FEC (striking laws limiting political contributions) presented a new and greater problem: judicial nullification of Acts of Congress. 

Formerly a rare event, it's been reignited by a supreme court bent on giving more power to autocratic (mostly Republican) states.

Hardened Republicans among the party operatives appointed to the federal bench by Donald Trump are still trying to implement the programs of the disgraced and departed president, especially in the district courts of the fifth circuit where, 18 months after the Trump administration was removed, a court is preventing Mr Biden from altering Trump policies in immigration, a field where states have no authority. 

The fifth circuit judges have also betrayed a stunning ignorance of First Amendment jurisprudence in upholding a new Texas internet censorship law imposed on social media. A Lawfare Podcast has more. 

With its 12 Republican appointees (six of them Trumpistes) the fifth remains the most malignant of the circuits. In an unprecedented recent ruling, Jarkesy v SEC, a divided panel rewrote administrative law to require a jury trial for defendants (in this case a hedge-fund trader) in a civil, not criminal, suit by the SEC. 

As Vox headlined, "A wild new court decision would blow up much of the government's ability to operate". 

Interestingly, the panel's astounding decision was tipped by the inclusion of the Trump-appointed judge Andrew Oldham, a former law clerk for Justice Alito. 

Congressional legislation is now needed to fix the supreme court's legislating efforts affecting corporate regulators like the SEC and, even more urgently, the FTC. 

Meanwhile, Trump's holdover statutory appointees to such commissions continue to obstruct the new government's initiatives, e.g, the Federal Electoral Commission's investigation of Trump regime money laundering. 

From Roger Fitch and our friends down under at Justinian.5.3.2022

 

Trump judges rule the roost

ROGER FITCH ESQ • FRIDAY, APRIL 29, 2022

Unqualified judicial appointments prop-up Republican agenda ... Gerrymanders tip democracy off its perch ... Tame media recycles the fictions ... CJ Roberts changes sides ... Government torture back on the rack ... America the not-so-beautiful ... Roger Fitch,  Our Man in Washington, reports 

The apostate Democrats Joe Manchin and Kyrsten Sinema joined the full party caucus of 50 senators in confirming Ketanji Brown Jackson for the supreme court. 

Justice Jackson also received the votes of three Republican senators clinging to shreds of decency while their fellow senators engaged in shameful displays of dog-whistle racism.

One of the three, former presidential candidate Mitt Romney, now represents Utah. Sadly, the state's other senator, Mike Lee, is the first Republican to announce the emerging Republican Party consensus that America is not a democracy, or, as Tocqueville inferred, need not be.

Republican-fascists (as some call them) are now running rampant, while American media daily validate AJ Liebling's view of the press as "the weak slat in the bed of democracy". 

The Republican Party, whose practices are sometimes compared to those of the Stasi, already controls a supreme court that shares its ideology.

Once, the joke was that the only consistent principle found in supreme court decisions was that the government always won. Now, it's the Republican Party. How else to explain the court's selective use or abandonment of precedent and even oral argument?

The court has emboldened partisans stuffed on lower federal courts by Trump's rubber-stamp senate, judges that are now President Biden's biggest impediment to governing, e.g, cleaning up the Trumped-down environment. 

One such is a Trump appointee to the 9th circuit, the rude and bonkers Lawrence VanDyke. VanDyke was a Trump nominee found "not qualified" by the American Bar Association, and at his confirmation by the Senate, the ABA summed him up thus: 

"Mr. VanDyke is arrogant, lazy, an ideologue, and lacking in knowledge of the day-to-day practice including procedural rules ... the nominee lacks humility, has an 'entitlement' temperament, does not have an open mind, and does not always have a commitment to being candid and truthful ... [he] would not say … he would be fair to any litigant before him, notably members of the LGBTQ community." 

Judge VanDyke: bonkers

Trump's district courts are also doing their part, issuing astounding orders along Republican Party lines, including this one by another Trump acolyte the ABA found "not qualified", Florida district court judge Kathryn Mizelle, whose anti-science face mask ruling conceals what Michael Dorf calls an ideological opposition to the administrative state.

As Dorf noted: 

"Judge Mizelle's ruling ... reflected the sort of extreme right-wing ideology in which she has been marinating for her admittedly brief career - an ideology that is hostile to government agencies addressing even the most pressing social problems." 

The Biden administration appealed the decision to the 11th circuit, where a majority of judges were appointed by Trump. There, as in the 5th circuit, where 12 of the 17 judges are Republican-picked, and in the 6th circuit, where 11 of 16 judges are Republican choices, the administration faces steep odds against success, with many Trump-appointed "movement" judges willing to set-up Party causes, e.g, those involving state voting rules and national immigration policy (more here) for supreme court success.

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Ohio was once the Republicans' key to stealing presidencies (e.g, George Bush's "re-election" of 2004), but lately it's let the side down, with a state supreme court that refuses to go along with party-favoured gerrymanders.

The solution? An appeal to the 6th circuit, where a panel of three judges - two appointed by Trump - swept aside the decisions of the Ohio supreme court respecting legislative districts and pushed back redistricting to the 2024 election cycle. 

It was a blatant ploy to ensure the Republican gerrymanders that followed the 2010 Census will be used in the 2022 elections. 

The future of such circuit decisions on appeal may be surmised from the supreme court's treatment of the Wisconsin districting dispute, with its contorted ruling on the state's court-ordered redistricting. 

Wisconsin is one of six states Republicans rely on to steal the next presidency, and the supreme court seems determined to keep it Republican. On remand, the Republican-controlled state supreme court gave the party all it desired.

Gerrymanders aside, research indicates Trump voters are not the sharpest tools in the box, and are highly vulnerable to the continuous lying of Republican Party surrogates like Fox News. It's alleged election fraud and other misinformation from which new voting obstacles arise - in Texas, Republicans are already reaping spectacular benefits that this court won't disturb.

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Roberts CJ: court derailed

There are signs that American lawyers are fed up with their country's new right-wing activist supreme court. Even the conservative chief justice seems to be distancing himself from the five most feverishly-political judges.

In recent cases, CJ Roberts has changed sides, joining the liberals in their dissent criticising the right-wing majority's misuse of the "shadow docket", i.e, emergency orders, made without full briefing and argument. 

Apart from court expansion, there are few options for fixing a court that has run off the rails. 

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When tiring of Trump's unpunished crimes, we can reflect upon those of George Bush, and one of Mr Bush's greatest crimes, official government torture, is back in the news. 

In March, the supreme court decided Zubaydah, accepting the government's "state secrets" claim which blocked the testimony of CIA contractors accused of torture.

Captured by the FBI and CIA, Abu Zubaydah was the first to endure the CIA's "Enhanced Interrogation" (Gestapo "verschärfte Vernehmung"), a program for the systematic torture of "war of terror" prisoners. 

 Zubaydah spent four-and-a-half years in CIA torture camps operated at sundry sites including Thailand, Poland and Lithuania (both paid damages), and Guantánamo. He's been held now for 20 years.

The FBI agents John Kiriakou, who led the capture of Zubaydah, and Ali Soufan, who first interviewed him, opposed the takeover of the case by the CIA, who sent Zubaydah to Thailand for "interrogation" by  James Mitchell and Bruce Jessen. 

Water-boarding began, Zubaydah nearly died, and no productive intelligence was derived. Nevertheless, water-board torture continued under the new camp director, Gina Haspel. 

Later, when Zubaydah was held in Poland, the morbidly-curious CIA agent Alfreda Bikowsky made an unauthorised visit just to see him being tortured. 

Where are they all now? John Kiriakou is out of prison (another story) and blogging on Zubaydah. Ali Soufan heads the Soufan Group security consultancy, and sponsors Fordham Law's Center on National Security, and Mitchell and Jessen aren't testifying in Poland's investigation, thanks to the supreme court.

Gina Haspel, since rewarded as Trump's CIA director, advises King & Spalding clients on cybersecurity.

Scheuer: torture team

And Alfreda Bikowsky? Since retiring, the Agency's "Queen of Torture" has been hawking beauty products and life advice for a living. The fabled red-haired member of the Agency's torture team, now married to the equally-odious torture team member Michael Scheuer, recently gave an unrepentant interview to Reuters. 

Is this a great country, or what?