From Roger Fitch and our friends down under at Justinian

An excess of venality

ROGER FITCH ESQ • THURSDAY, NOVEMBER 18, 2021

Guns everywhere for everyone - Supreme Court to decide ... Judiciary stuffed with Trumpists ... Bannon mired in Congressional contempt ... Insurrection of January 6 ... Ex-president consumed by litigation ... From Roger Fitch, Our Man in Washington 

Trump's most lasting damage has been to the courts, through the appointment of partisan judges with an ideological agenda; the incipient harm has already become apparent in the supreme court's new term.

In a case already argued, the gun enthusiasts are back, and this time they're claiming a constitutional right to carry weapons everywhere without hindrance. As the Nation headlined, "Supreme Court Is Poised to Give a Giant Gift to Gun Nuts"

It's a matter left undecided in the court's infamous 2008 case, DC v Heller, but it's of major importance, as right-to-carry laws lead directly to increased violent crime. 

The latest lawsuit seeks to knock out New York State's highly effective, 108-year old gun regulations in order to complete the right-wing reinterpretation of the Second Amendment.

In Heller (2008), the court discarded 70 years of precedent and discovered a previously-unknown Second Amendment personal right to keep and bear arms without regard to the military exigency referred to in the amendment.

New York State Rifle & Pistol Association v Bruen concerns a purported right to carry arms outside the home, and has attracted over 80 briefs. Interestingly, the court will also be looking at the 1328 Statute of Northampton. More here on the statute, followed in the UK until 1970.  

The supposed ambiguity in the English statute, exploited by right-wing law profs, turns on the translation of the English law's Latin: was it carrying arms, or merely wearing armour, that was proscribed? New York Magazine has more. There's a further claim by weapon-afficionados that the English Bill of Rights of 1689 protects gun-toting. It's news to the English.

If grim forecasts are borne out, the supreme court is on the cusp of making the US almost unliveable. Not just for women, e.g, the Texas abortion-bounty law, but also in daily life, where safety and health regulations, including those touching on guns, vaccines and the air citizens breathe, are on the line. 

In an alarming certiorari grant, the new super-conservative majority on the court may be signalling its support for the most deadly attack in decades on the modern administrative state, and, with coal and the EPA involved, life on the planet itself.

It's a horrifying redux of the toxic "non-delegation" theory of legislation that could affect 99% of America's regulatory statutes. A (federally) unregulated corporate nirvana could result.

 *   *   *

A house subcommittee is investigating the government's 2020 coronavirus response and has uncovered the depths of Trump's pandemic incompetence. Even so, Texas and other red states have sued to block the Biden Administration's mild vaccination requirements for federal contractors who operate in their states.

The states lost, but the Trump-stuffed Fifth Circuit came through for the party's public-health sceptics: an all-Republican panel struck down the OSHA-issued employer vaccination mandates. The Commerce Clause analysis was described by one constitutional law professor as "reactionary and bonkers".

By contrast, the appeal of Trump's claims of executive privilege over National Archives papers, rejected by a DC judge, will be heard by a panel of Democrat-appointed judges.

It remains to be seen which appeals circuit will hear the inevitable "faith-based" challenges to President Biden's reversal of Trump administration rules that allowed religious-based anti-gay discrimination.

*   *   *

Bannon: Trump's little mate

After dithering for weeks, the Justice Department has indicted Trump's mate Steve Bannon for contempt of congress. Some had worried that the ever-cautious attorney general, Merrick Garland, would delay charging Bannon, or not charge him at all; after all, in October, Garland let the five-year statute of limitations run against Michael Cohen's unindicted co-conspirator in the Stormy Daniels hush-money payments: "Individual-l", one Donald Trump.

It was another Houdini escape for El Caudillo de Mar-a-Lago. The payments, clear violations of election law, were under investigation by the Federal Election Commission as Trump's term ended, but holdover Republican appointees on the evenly-divided commission engineered a case closure on technical grounds.

If scandal and disgrace fail to sink Trump or his Republican caucus, there's still a faint prospect that the  congressional insurrectionists could be expelled, as they were in 1866, and Trump himself could be disqualified (or "lustrated") from office. 

It's essential that Trump be stopped from standing again, as all the indications are that he's planning a coup in 2024; that's why so much depends upon the work of the House Select Committee that is currently investigating the unsuccessful 2020 coup attempt. 

Even as the committee was sitting, shocking new evidence emerged of Trump's efforts to cling to power, e.g, the Eastman memos, and now, the Ellis and McEntee memos. Jenna Ellis was a Trump campaign lawyer; Johnny McEntee was the 29-year-old White House personnel director who forced out Defence Secretary Mark Esper for (among other things) resisting Trump's efforts to involve the Pentagon in his Putsch.

Even with the overwhelming evidence of wrongdoing, there's little time left for house Democrats to deal with Trump. The recent Virginia state elections exposed the continuing credulity of Republican voters, a softening of Democrat support and most worryingly, 2020 Biden voters with a short memory.

In November 2022 there will be congressional elections. Inflamed by the ceaseless Stolen-Election lie and powered by gerrymanders that would make Bjelke-Petersen blush, Trump's Fox-fed Lumpenproletariat will regain control of the House of Reps and put an end to its inquiries into Trump's malefactions. 

Yet there's no lack of ongoing litigation (here's the latest list), with a fresh grand jury inquiry into the Trump Organisation. Trump remains in personal legal peril with the January 6th jailings: his aiding and abetting the Capitol occupation would be one of the easiest cases for prosecutors to prove. As well, there's the incriminating Hatch Act violations of underlings in which he's implicated.

Teapot Dome Scandal ... plunder of public assets by presidential cronies

The Washington Post has produced a three-part report on the January 6th insurrection before, during and after the coup attempt.

The Guardian also has a report, and ProPublica found the sources of the riot funding. Now, congressional complicity in the Trump coup plot is coming to light; subpoenaed witnesses at the January 6 committee hearings are said to be singing like canaries. 

If all else fails, there is hope that defamation suits will bring down Trump and his legal hacks, and his mad media accomplices, too. 

The Trump International Hotel, meanwhile, has been sold at a spectacular loss to an investment group, after the Trump Organisation lost $70 million on it during the lessee's surprise presidential term. Look for a Waldorf Astoria in Washington's Old Post Office. 

The venality of the Trump administration now exceeds any in American history, including the 1921 Teapot Dome Scandal. That involved the private looting of publicly-owned assets, what we now call fossil fuels, by the officials and corporate cronies of a corrupt president. Sound familiar? 

From Roger Fitch and our Friends Down Under at Justinian

 

Ominous agenda of SCOTUS' supermajority

ROGER FITCH ESQ • WEDNESDAY, OCTOBER 13, 2021

Stonewalling the January 6 investigation ... Obstruction of justice is flavour of the season ... Midterm dangers ... Huge report on attempted subversion of the DoJ ... Supreme Court docket ... "State secrets" ... Legal theory in support of election heist ... From Washington Roger Fitch reports 

"[T]he reprieve that we experienced when Trump did in fact leave office ... will be quite brief. By 2022, or 2024 at the latest, we will see that the American political system has been hopelessly corrupted, with Republicans having successfully ended any serious prospect of honest political competition ... it seems that we are merely waiting for the end ... We were never by any means a perfect constitutional democracy (having only had something roughly resembling widespread voting rights for about the last fifty-six years, among other obvious flaws) ..." - Neil Buchanan

The rising tide of Republican lawlessness has become a Tsunami, and doomsday predictions of America's future are now common. F

Briefly, Republicans seem prepared to destroy America in order to save it from Democrats. 

One example: stonewalling house Republicans are resorting to extortion to prevent disclosure of their telephone records to the house committee investigating the January 6 Capitol invasion, while their former president, fresh from his campaign to steal the 2020 election, openly backs party candidates he believes will support his plans to steal the 2024 election. 

The Republican caucus in the House of Representatives is bad enough already: two-thirds of members attempted to prevent the routine confirmation of the 2020 election results, and are resisting both house and senate investigations of some of the serial crimes and personal corruption of the last president.

One example: abuse of his government lease for Washington's Old Post Office, fitted-out as a luxury Trump hostelry.

According to documents released by the House Oversight Committee, the Trump International Hotel actually lost $70 million while its eponymous lessee was president: that's despite millions in foreign government backhanders disguised as bookings. 

Trump's loss leading hotel

The House Judiciary Committee is currently investigating the January 6 insurrection, including the former president's brazen plot to steal the election (more here), and has issued subpoenas for testimony by former Trump associates. 

The litigation-entangled Trump responded by "ordering" former aides to flout their subpoenas, a textbook obstruction of  justice; in any case, President Biden overruled Trumped-up claims of executive privilege. 

Yet sadly, time is on Trump's side: Republicans, armed with fresh decennial gerrymanders and reliant on the gullibility of voters, will likely retake the house of reps next year and close down inquiries. What's really needed is a special prosecutor, as proposed in a 1987 Chapel Hill law review article by JR Biden Jr. 

The many criminal investigations of Trump (including in Georgia) are another matter. Prosecutors retain a measure of independence, and there is hope that a successful prosecution of the former president for one or another of his many criminal defalcations and abuses of power will in future modestly deter the Republican Party. 

Just Security argued for a Justice Department investigation of Trump's White House Chief of Staff Mark Meadows, as well as the president's DoJ mole Jeffrey Clark, now the subject of a DC Bar Association complaint. 

Emptywheel's Marcy Wheeler speculated on how the Justice Department might bring charges against Donald Trump himself for his participation in January 6th.

Meanwhile, there's a 394-page interim Senate Judiciary Committee report on Trump's efforts to alter the election results through DoJ subversion. Lawfare comments.

≈   ≈   ≈

Blowback from the "war on terror" of the early 2000s still affects the supreme court docket: one of the first cases argued in the court's new October term was that of Abu Zubaydah, the long-suffering, much-abused Guantánamo internee. 

Zubaydah's detention and mistreatment was one of the earliest emanations of that time when George Bush, aided and abetted by congress, effectively blew up the rule of law, and consequently, federal criminal (and sometimes civil) justice: not just through torture, but in the torture cover-up, repeatedly claiming, in shameless bad faith, the so-called state secrets privilege. 

The Zubaydah case, now in the supreme court, directly confronts the question, how does the privilege apply when the "state secret" - the fact that Poland assisted CIA torture - is not a secret at all. 

The Poles themselves have already acknowledged their participation and even paid damages to Zubaydah, in the European Court of Human Rights; however, they haven't gone so far as to give tours of the former US torture facilities, as the Taliban are doing in Afghanistan.

An amicus brief filed by the Bureau of Investigative Journalism demonstrates why the case does not in fact involve state secrets, more here, oral argument here. 

Although the justices appeared unlikely to rule in Zubaydah's favour on the state secrets issue, they seemed genuinely astonished that the prisoner's habeas petition had not been acted upon since 2008. 

The court will also hear another "state secrets" case this term, involving FBI surveillance.

Nine important cases are already on the supreme court's docket for the October term, including a case in which, surprisingly, public defenders joined the enemy gun camp in opposing New York's concealed-gun regulations. 

Berkeley law dean Erwin Chemerinsky has a preview of the supreme court's term, and a new book warning of the right-wing court's ominous agenda; the Nation's Ely Mystal, a Harvard lawyer, also paints a bleak view of the likely regressive direction of the court's new conservative supermajority. 

Berkeley's Chemerinsky: court's ominous agenda

In its recent recess orders overturning Biden administration executive orders, so at variance with the court's deferential treatment of Trump's orders, the majority seems to be siding with Republican party policy, issuing transparently partisan decisions; so far, the court has favoured Trump executive orders 28 times compared to zero for Biden. More here. 

If these shadow docket decisions are any indication, Donald Trump's ideological judicial appointments portend a partisan court that will be anti-progressive, anti-regulatory and pro-corporate, a rubber stamp for Republican causes and initiatives that will last for years.

The court has also weaponised lower court orders of Trump-appointed judges, as in the case of states' meddling in immigration, here and here. The district court judges, both sitting in Texas, ruled in response to red border states who oppose the Biden administration's immigration policies, policies heretofore considered exclusively within the purview of the federal government.

This latest supreme court mischief has only increased calls for judicial reforms, including additional members for the court.

≈   ≈   ≈

Eastman with troubled comrade Giuliani

Lawyers may enjoy the improbable saga of the opportunistic hack John Eastman who, courtesy of Fox News, rose from legal obscurity to advance legal theories threatening the republic itself.

The New Republic reported on ex-law dean Eastman's seditious (though initially underreported) memos to Vice-President Pence. The Atlantic considered the overall scheme. More here. 

Many lawyers have urged the California Bar Association to take disciplinary action against Eastman, something the bar failed to do with the notorious Berkeley law prof John Yoo.

At least Eastman's advice - unlike Yoo's public-service torture memos - wasn't cooked-up at taxpayer expense. 

From Roger Fitch and our friends down under at Justinian

 

The tail end of the American century

ROGER FITCH ESQ • TUESDAY, SEPTEMBER 14, 2021

Decline and fall following 9/11 ... Damage wrought by the "war on terror" ... Democracy looks wobbly ... Brigade of unscrupulous lawyers shredded the law ... Nacht und Nebel ... Guantánamo detainees now in the Taliban government ... Roger Fitch files from Washington 

Much has been written about the September 11, 2001 terrorist attacks on their 20th anniversary, mostly about how "9/11 changed the world". In hindsight, it was America's reaction that altered everything. One headline summed that up: The Most Terrifying Thing About 9/11 Was America's Response.

2021 also brought an end to the immensely counter-productive war in Afghanistan launched by George Bush and acquiesced in or joined by western nations. 

Osama bin Ladin, the ostensible target of the US invasion, left Afghanistan in the first year of the war. He was eventually captured in Pakistan, where summary judgment was rendered: quite unnecessary, with an open indictment in Manhattan. 

Ironically, it was a good man, Jimmy Carter, who in 1979 began the ill-advised Afghan involvement, largely at the urging of his national security adviser, Zbigniew Brzeziński (seen here). "Zbig" wanted to draw the Russians into Afghanistan and hasten the collapse of the Soviet Union. 

Many believe that ploy was successfully emulated by bin Laden when he drew the US into Afghanistan: the US suffered great internal stress and loss of its position in the world, and is currently threatened with the collapse of its democracy.

The failure of the Afghanistan intervention, coinciding with the 9/11 anniversary, caused Americans and foreign observers to stop and reflect on how the US government got everything wrong in the 20-year "Global War on Terror" that followed 9/11, beginning with George Bush's rejection of Taliban peace overtures. 

There's more in The Intercept and the New Republic on the Afghan fiasco.

Historians will rightly blame George Bush for many domestic effects that remained, e.g, an armaments industry in overdrive and a security state. 

Above all, there is a re-jigged justice system that has sanctioned the prosecution of combatants and militarised civilian crimes, epitomised by the extrajudicial detention at Guantánamo and "trials" in its kangaroo courts. 

Astonishingly, liberal democracies like Australia and Canada (and briefly, Britain and Germany) allowed their citizens to be caught up in proceedings that violated their own laws as well as American and international law. 

Zbigniew Brzezinski: father of the Afghan folly

Opportunistic, malleable, incompetent or merely dishonest, bad lawyers were at the heart of the Bush Administration's derailment of law. John Yoo, Jay Bybee, Patrick Philbin, Robert Delahunty, Timothy Flanigan, Daniel Levin, Steven Bradbury, Jim Haynes and Alberto Gonzales joined in memos that ignored the Torture and Geneva Conventions, "authorising" practices that first-year law students would recognise as illegal. 

"National Security" brought such things before. Although it's disputed, the law professor Scott Horton believes Bush's lawyers were as culpable as Hitler's Night and Fog lawyers, tried at Nuremberg in the Altstoetter case:

"Justice Department lawyers were ... charged with crimes against humanity and war crimes arising out of the issuance and implementation of the Nacht-und-Nebel [decree]. The United States charged that as lawyers ... they must have recognized that their technical justifications for avoiding the application of the Hague and Geneva Conventions were unavailing, because these conventions were 'recognized by all civilized nations, and were regarded as being declaratory of the laws and customs of war' ... the two principal Justice Department lawyers ... were convicted and sentenced to ten years' imprisonment ...This judgment clearly established the concept of liability of the authors of bureaucratic policies that breach basic rules of the Hague and Geneva Conventions for the consequences that predictably flow therefrom."  

*   *   *

While Karen Greenberg has lamented the overall damage to America's rule of law caused by the 20-year "War on Terror", others are turning their attention to righting particular terror-war wrongs, e.g, Guantánamo, its inmates and former inhabitants, and the treatment of Detainee 001, John Walker Lindt.  

Among those speaking out have been human rights lawyers, prisoner advocates and members of the Guantanamo Bar. They point out that, following the end of hostilities in Afghanistan, there's little legal basis for military detention of "law of war" prisoners, not charged with war crimes. 

Many were non-combatants, seized outside Afghanistan, and only five percent were captured by US soldiers on the battlefield. All were presumed by George Bush to be unlawful fighters, fictional "enemy combatants".

Those who were in fact belligerents were often lawful ones, e.g, the five Taliban (see below) freed by Obama in a prisoner swap in 2014. 

They were fully entitled to the protections of the Geneva Conventions that the Pentagon had scrupulously provided in previous wars, e.g, PoW status hearings required under the Geneva Conventions and the US Code of Military Justice. The Vietcong received these, why not the Taliban? 

Instead, officials trying to follow the law were bullied, sacked or re-assigned (see Fitch here). 

Al Jazeera and the Times have more on the sordid history and present state of the Guantánamo project.

*   *   *

Gholam Ruhani: eight years at Guantánamo (pic: AP)

Guantánamo grad Gholam Ruhani turned up at the first Taliban appearance in the presidential palace in Kabul. He was Detainee 003, and like Detainee 002 (David Hicks) was released in 2007. 

Several Gitmo alumni were in the new Afghan government, e.g, Abdul Qayyum Zakir, the acting defence minister. 

Zakir was also one of the first Gitmo prisoners (Detainee 008). Though an Afghan military official, he was detained for years while successive US governments denied him a PoW status hearing in flagrant disregard of the Geneva Conventions and the US Code of Military Justice.

Another government minister, Khairullah Khairkhwa, was also a military official in the 2001 Taliban government, and one of those detained at Guantánamo in violation of Geneva; he was released under the Obama administration as part of a prisoner exchange for the captured US soldier Bowe Bergdahl. 

Both men had been held in conditions violating the Geneva Conventions.

*   *   *

At Guantánamo, military commission charges were finally approved against Riduan Isamuddin (Hambali) for the Bali bombings. The charges were laid by an outgoing Trump appointee, on Biden's first full day in office. The case was previously refused clearance to proceed, perhaps due to torture, the reason in Mohammed al-Qahtani's case. More here.

Pending Guantánamo proceedings suggest the US is still failing to recognise its anti-torture obligations, especially in the military commission proceedings, where torture-derived evidence remains on the table.

One such proceeding is that of Abd Al-Rahim al-Nashiri. Torture-derived evidence is the subject of his mandamus petition in the (cosmetic) Court of Military Commission Review; interestingly, Nashiri's torture was supervised by Gina Haspel, afterwards Trump's CIA director. The NYT has more. 

Even as al-Nashiri's lawyers argue against the use of evidence gained through torture, the DoJ is remaining silent on the right to due process in the al-Hela case now before the full DC Circuit. The supreme court is meanwhile considering the "state secrets" appeal of Abu Zubaydah (CCR has an amicus brief). 

 Conveniently, the CIA destroyed its most notorious torture facility, the Salt Pit, before leaving Afghanistan. 

From Roger Fitch and our Friends Down Under at Justinian

 

Struggling out of the quagmire

ROGER FITCH ESQ • THURSDAY, AUGUST 12, 2021

The Roberts Supreme Court Court and its obstructions ... Gerrymanders could see the Republicans take back the House ... Members of the "sedition caucus" to testify before January 6 committee ... Big money behind the claims of election fraud ... Trouble ahead for Trump lawyers ... Roger Fitch, Our Man in Washington, reports 

An "impulsive, mentally unstable and unbalanced individual who suffers from an inferiority complex" -  psychological assessment of Donald Trump provided to Vladimir Putin in January 2015.

"Rating Outlook is Negative ... The failure of the former president to concede the election and the events surrounding the certification of the results of the presidential election in Congress in January, have no recent parallels in other very highly rated sovereigns. The redrafting of election laws in some states could weaken the political system, increasing divergence between votes cast and party representation. These developments underline an ongoing risk of … difficulty in formulating policy and passing laws in Congress…" - Fitch Ratings, July 2021.

Perhaps the potential loss of America's treasured Triple-A sovereign Issuer Default Rating could make the country's seditious insurgents reconsider their goal of permanent, one-party government. 

Or maybe not. The Democrats seem too compromised and supine to either stop the new Jim Crow voting rights restrictions sweeping Trumpland, or - before there's another Putsch - invoke the 14th Amendment and exclude Trump from public office based on, e.g, his traitorous interference in the Justice Department.  

Perhaps the pending January 6 hearings will uncover sufficient treachery to justify such disqualification of Trump by states and congress. 

*   *   *

As expected, senate Republicans filibustered the Democrats' signature voting rights act for the usual (racist) reasons, and because of their well-founded expectation that stonewalling reforms will produce enduring one-party government at the next election.

If only the Democrats could carve out an exception for the filibuster, limited to constitutional issues, but that's difficult, due to rats in Democrat ranks. 

Filibusters aside, Biden and his party - with the vice-president's vote - have a working majority in the upper house, but they suffer from two backsliders, West Virginia's plutocrat senator Joe Manchin, and the slippery Kyrsten Sinema of Arizona. Sinema is so conservative that an Arizona Republic writer queried why she hasn't joined the Republican Party.

Senate Democrats have additional ideas for getting voting laws through the upper house, but a determined and mischievous conservative majority on the supreme court might still strike down new voting rights laws. 

Since the ascension of Chief Justice John Roberts, the decisions of the court's right-wing majority have increasingly aligned with the agenda of the Republicans who appointed them, in "total war" on congress, evident in Brnovich v DNC, the latest judicial attack on voting rights in the supreme court. 

There's a new book out on the groundwork that the Roberts Court laid for the current Republican assault on voting rights - obstructed throughout American history by the  court - and a vast suite of civil rights laws. A Progressive writer has a damning list of the worst decisions of the Roberts Court since the chief justice's appointment in 2005. 

The supreme court has been blessing gerrymanders since at least the notorious "second" decennial Texas redistricting of 2003 (heard and decided by the court in 2006). 

That was preceded by a Texas Democrat walkout, a tactic deployed again this year. It's a shame Obama didn't act in January 2009 - the last time  Democrats had a filibuster-proof congress - to pass laws preventing such shocking gerrymanders as that of Texas in 2003. 

Now Republicans are on the brink of retaking the house of representatives through gerrymanders that the supreme court effectively approved. Only four Republican-controlled southern states are needed to do it. One hopes that Biden's AG will meanwhile vigorously enforce existing laws abandoned by Trump's AG.

The only place safe for voting rights legislation now is in the state houses, where a newly-blue Virginia has gone from nearly worst, to one of the best.

*   *   *

In the lead up to the House of Representatives inquiry into the January 6th Capitol riot and insurrection, Just Security has created a "January 6 clearinghouse" site coordinating information relating to the event.

We already know that forewarnings of the insurrection were missed or ignored, and Jane Mayer, one of America's best investigative journalists, has a long read in the New Yorker on the big money behind Trump's ludicrous post-election fraud claims that culminated in the Capitol attack.

Justice Department leaks had already revealed the efforts of Trump to have DoJ assist in the overthrow of the election results. Now, career Justice Department officials are testifying to the machinations of Trump and his acolyte Jeffrey Clark (see below). 

The committee's subpoenas can't be resisted: the Attorney General has decided there will be no DoJ interference with subpoenas to former officials of the Trump administration. 

Trump's man Brooks: sued for incitement to violence

Nor will DoJ intervene to defend individual Republican congressmen who abetted the insurrection, e.g. Rep "Mo" Brooks who is being sued by Democrat Rep Eric Stalwell for his incitements to violence at the rally preceding the mob attack. 

As DoJ opined, "Inciting or conspiring to foment a violent attack on the United States Congress is not within the scope of employment of a Representative - or any federal employee".

Eventually, members of the Republican "sedition caucus" will be called to testify before the January 6 committee, and there's a precedent for that: the demands of Jefferson Davis, the future president of the Confederacy, when he was in the Senate. 

Attorney General Garland had already released the astounding draft brief that the Trump White House wanted the Justice Department to file in the supreme court, seeking to reverse the election. 

Garland has since issued restraints on communications between DoJ and the White House.  That's important in the light of the improper actions of Jeffrey Clark, the Justice underling who openly assisted Trump's efforts; notes exist attesting to their conspiratorial conversations.  

*   *   *

Trump administration lawyers are struggling to find jobs in Big Law, which is now accused of being left-wing by conservative groups like the Koch-funded right-wing New Civil Liberties Alliance.

Some of the tainted attorneys have been parachuted into conservative sinecures and "think tanks" (there's a new Trump-Tank in California). Clark himself landed on his feet in a Republican safe house: a rightwing law shop fighting mandatory Covid injections at Indiana University despite 7th circuit and supreme court decisions upholding compulsory vaccinations.

On the civil side, Trump's lying lawyers are in well-deserved disrepute and professional strife, in New York, Michigan (more here) and Colorado.

Commercially, times are tough for Trump himself, and it's not just litigation. Party baksheesh and backhanders are in steep decline at the various enterprises he  owns or promotes. Perhaps that's why America's crassest president is now reduced to using the presidential seal at his golf courses. There must be some intellectual property transgression there.

Meanwhile, presidential historians have been asked to rank America's presidents, again. Incredibly, there have been three worse than Donald Trump. 

The mind boggles. 

FROM ROGER FITCH AND OUR FRIENDS DOWN UNDER AT JUSTINIAN

 

Mixed bag from SCOTUS

ROGER FITCH ESQ • MONDAY, JULY 5, 2021

Supreme Court wraps up its latest term with some notable shockers ... Another stick of gelignite to blow up the Voting Rights Act ... Secrecy for rich donors to political causes ... But freedom for profane speech ... Department of Justice going slow on prosecuting Capitol insurrectionists ... War criminal and former defence secretary dead at 88 ... Roger Fitch files from Washington 

The supreme court has concluded its October 2020 term. Decisions were mixed, but in the most important case, Obamacare was upheld for the third time against the baffling efforts of Republicans to destroy it. 

In other matters, the court's conservative Catholic faction, joined by liberals, was able to retrieve the fortunes of the Philadelphia diocese, who claimed a continued right to participate in foster care referrals despite their policy of non-referral to same-sex foster parents. More here on the 9-0 decision and it's likely aftermath. 

The decision of the court in the Nestlé and Cargill cases, respecting applicability of the Alien Tort Statute to corporate human rights abuses overseas, was expected - but provided a disappointing and alarmingly broad immunity for corporations. Only Justice Alito dissented.

The unanimous NCAA case, though fair to college athletes, represented a set-back for antitrust law. 

In the disturbing case of TransUnion v Ramirez, the Supreme Court held 5-4 that if plaintiffs cannot prove that their (incorrect) terrorist designation has actually been reported to third parties, they cannot sue because they lack a "concrete" injury under the court's (extremely-flexible) standing doctrine. 

As Michael Dorf explains, "That Congress had passed a law permitting individuals to sue credit agencies that fail to use reasonable procedures to ensure the accuracy of their credit reports did not matter".

There were "liberal" lst and 4th Amendment cases. The free speech case Mahanoy v B.L. affirmed a decision involving a school cheerleader's Snapchat profanity, while in Lange v California the supreme court narrowed police powers to enter a home without a warrant.

Property rights versus civil rights have been at the heart of constitutional conflict since the document was adopted, and a so-called employers' rights decision in the final days of the term was further proof. A powerful union-busting decision, Cedar Point Nursery v Hassid could be the biggest ideological stinker of the court's term, an important step in the conservatives' ambitious dismantling of Roosevelt's New Deal.

HollyFrontier Cheyenne Refining was another corporate victory. Without the help of the newest justice Amy Coney Barrett who joined the liberals, the conservatives made a free gift to polluting companies; ironically, the decision issued on the same day congress used its powers to disallow Trump's methane-boosting regulation. 

In two other cases, Collins v Yellen and Arthrex, the supreme court conservatives actually enhanced Biden's powers, increasing executive authority. 

The court's two deadliest decisions, however, were dead last.

Americans for Prosperity v Bonta will guarantee secrecy for rich donors to highly-political non-profits. The court accepted the non-profits' disingenuous claim that California's contribution disclosure rule violated their donors' First Amendment rights by deterring them from making contributions. 

Supreme Court prefers Republican voters

In the Brnovich case, the Democratic National Committee brought suit against new voting restrictions in Arizona under s.2 of the Voting Rights Act 1965, one of the few remnants left after the court gutted the VRA in the infamous Shelby County v Holder decision of 2013. 

Some Democrats feared that the DNC's stand against relatively minor voting restrictions would open the door to a broad-based supreme court decision, and so it transpired as a Republican supermajority greenlit Arizona's voting restrictions, essentially rewriting s.2 in the process.

Although s.2 of the VRA was not, as feared, annulled, the conservative majority seized upon the case to rule that disparate impacts on minority groups (what used to be called poll taxes) would "typically" not be enough to render voting rules illegal under the VRA. 

The majority then diabolically set out, among salient factors, "the degree to which a voting rule departs from what was standard practice when §2 was amended in 1982": carte blanche for banning postal voting, drop boxes, same day registration, extended hours and other voting innovations.

DoJ's first use of s.2 will be against Georgia's new state voting law; the charge is intentional discrimination.

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Biden's AG Merrick Garland has adopted some Trump legal postures, such as defending "faith" as an acceptable ground for LGBTQ discrimination. The president, however, has ended an embarrassing Trump regulation that licensed gender discrimination in health care, based on one's claimed moral or religious views. 

In a pending appeal brought by Trump's DoJ, the Biden administration has argued for the reinstatement of the death penalty in the Boston Marathon Bombing case, even though the president personally opposes capital punishment. 

The attorney general has, however, paused Trump's deadly campaign of federal executions, and Biden is being urged to commute all outstanding sentences and, presumably, abandon the Boston bomber appeal. 

 

E. Jean Carroll is suing Trump over the former president's denial that he raped her ... Trump claims immunity

The Justice Department is also defending pending lawsuits against Trump, e.g. Jean Carroll's defamation action. Is there some tactical justification? As a Nation writer noted, "slandering alleged rape victims is not one of the official duties of the president". 

Some doubt moderate AG Merrick Garland's commitment to prosecuting "Trump's mob", i.e. the Capitol insurrectionists, but he has made a start on other Trump malefactions by e.g. disclosing compromising documents of the old regime that were found within the Justice Department. Thus, Garland released the outrageous draft brief that Trump wanted the DoJ to file in the supreme court, seeking to overthrow the election results. 

More here and here on Biden's attorney general.

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The long-expected criminal indictments of the Trump Organisation for tax fraud have finally been filed. So far, Trump hasn't been indicted, but one US newspaper (the Boston Globe), is calling for the criminal prosecution of the former president himself. At least his reputation as an egregious tax cheat has bolstered bipartisan support for more vigorous enforcement of federal tax laws. 

There's an updated litigation tracker for Trump. As for other members of the gang, new evidence of old crimes by his cabinet cronies is still emerging.

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Rumsfeld: The Butcher of Baghdad

As Le Monde politely reported, "Donald Rumsfeld, ancien secrétaire à la défense américain et architecte des guerres d'Irak et d'Afghanistan, est mort". 

Or, as less respectful American opinion put it, "War Criminal Found Dead at 88"; "He Played a Leading Role in Mass Murder"; "Rumsfeld represented the very worst of American arrogance and violence toward the rest of the world"; "a tragedy that Rumsfeld died before he could be put on trial for crimes against humanity"; and "worst secretary of defence in American history". 

The Machiavellian Rumsfeld escaped the hangman's noose; under Nuremberg principles, he'd have gone to prison if not the gallows. Instead, the disgraced former secretary of defence outlasted the Abu Ghraib scandal, the ACLU's Ali v Rumsfeld, multiple European criminal proceedings, and dozens of cases involving Pentagon actions in Afghanistan, Iraq and Guantánamo.

He escaped thanks to the protection and stonewalling of successive US governments, including the repeated bad-faith invocation of the "state secrets" privilege. 

It's a sad chapter in American legal history.