FROM ROGER FITCH AND OUR FRIENDS DOWN UNDER AT JUSTINIAN

 

Trump's tipping point

ROGER FITCH ESQ • TUESDAY, DECEMBER 13, 2022

The stolen documents saga ... The attempted coup ... Legal problems piling up for Trump ... 70 million people in America still believe the dangerous fantasies of a disturbed mountebank ... Criminal servitude beckons ... Roger Fitch reports from Washington 

"No other president has refused to concede that he lost an election, attempted a coup and incited an insurrection and then stolen hundreds of government secrets on his way out the door. He always says there's never been anyone like him, and it's true." - Salon

"Would he really give, say, Kim Jong-Un the names of undercover intelligence agents operating in South or North Korea, thus guaranteeing their assassination? If it meant fending off an indictment, he would ... they're sitting around at Main Justice asking themselves how many assets' lives they might be risking by indicting Trump." - New Republic 

In September, it seemed a tipping point had been reached in the legal pursuit of Donald Trump, with the filing of the NY Attorney General's "monumental" civil enforcement action against Trump, his family, and his corporate organisations. 

His accountants Mazars and banker Deutsche Bank have both parted company with their deadbeat client and provided evidence against him; Paris-based Mazars is probably used to official requests for the accounts of crooked politicians.

The man has so many stolen documents that Just Security set up a "Mar-a-Lago Clearinghouse" one can consult.

Even so, just after the elections, Donald Trump announced with astounding chutzpah that he's standing for president again. As Karl Marx observed, historical facts and figures appear twice, first as tragedy and then as farce. 

Trump proclaimed his candidacy in the glitzy ballroom of his Florida home, an estate as tasteless and garish as the man himself. Ivanka and Don Junior were missing, but the disgraced ex-president was bucked-up by the puzzling presence of the Western Australian mining billionaire Gina Rinehart.

If he succeeds, it will be only the second time an ex-president has managed a second term.

So far, it's all been downhill. 

One investigation in particular - the January 6 insurrection - seems to be moving forward at the Justice Department. Will there be indictments? It seems likely, and for the document heist there's even a model prosecution memo to peruse here. 

In addition, the January 6 committee is winding up its investigation and on December 21 will release its final report in which a number of people will be referred to DoJ for criminal prosecution. 

Many wonder why US AG Merrick Garland hasn't already indicted the principal offender, Donald John Trump. One explanation may have been the AG's wish to avoid filing charges so close to a congressional election. 

In response to Trump's 2024 announcement, AG Garland has appointed a special counsel. Jack Smith, presently Chief Prosecutor of Kosovo war crimes at The Hague, is a man who should be able to find where Trump has buried the bodies, or documents.  

The ex-president is still in legal peril for the latter, although DOJ is said to believe he stole government documents to gratify his unbounded ego - a mere narcissistic hoarder - rather than for the more plausible purposes of blackmail, treason or cash.

After pausing to assemble staff, Smith has already begun sending out subpoenas. 

After Trump's 2024 candidacy was announced, his situation became more precarious: 

•  An 11th circuit appeals panel (two of the judges Trump-appointed) unanimously shut down the special master that a Trump-sympathetic federal judge in Florida had ordered, a manoeuvre designed to interfere in the FBI's review of government documents the former president had unlawfully retained. 

•  In DC, the government's theory of a seditious conspiracy on January 6 was vindicated in a guilty verdict against the Oath Keepers, with implications, perhaps, for Trump himself. 

•  In Manhattan, the Trump corporate organisations were convicted on all counts of tax fraud, while Trump personally faces far worse in other NY litigation. 

•  More classified documents have been found in a Florida storage unit used by Trump. 

•  DOJ has filed a contempt motion (so far unsuccessful) in Washington, seeking penalties for non-compliance with the grand jury's May document subpoena, with implications for indictment and venue.

≈   ≈   ≈

If a criminal indictment against Trump is inevitable, where would venue lie? 

For the taking and retention of classified and other documents, it could be Florida, his adopted domicile after fleeing his New York legal problems.

Florida would be a logical choice, as it's the state where he freely admits he took government documents that he claims to "own", not just (marketable) classified documents, but also White House pardon records that might implicate laws about bribery, corruption and/or obstruction of justice. 

Judging from a similar DOJ prosecution for retained classified documents, now under way, it will be argued that any evidence Trump may offer as to his intent in retaining classified documents (whatever it may have been) should be excluded as irrelevant. 

The ongoing case is one where the defendant, like Trump, claims classification was under his control.

After earlier revelations that confirmed no man is a hero to his valet, the stolen document saga continues, with the discovery of the additional documents. 

Incredibly, loyalist Republican AGs in 10 states filed an amicus brief in the 11th circuit appeal lost by Trump, alleging bias in the Biden administration's search of Mar-a-Lago. 

How successful would the documents charges be in a Florida venue? The state has a generous supply of  easily-led MAGA supporters (many elderly) who as jurors might prove unable to exercise independent thought where their Great Leader is concerned. 

After the Republican triumph in the state last month, Florida jurors sound even shakier.

Georgia is also a possible venue. Indeed, Special Prosecutor Smith is spoiled for choice. The document case, best brought in Washington, is meanwhile getting stronger daily, as Trump's speeches provide fresh personal scienter.  

In any case, there's a smorgasbord of transgressions to choose from: at least 56 crimes could be credibly charged against the lawless ex-president (handy litigation tracker here), not counting fresh offences like this shake-down of investors in Trump's Truth Social Twitter alternative.

There remains Trump's possible disqualification from office (for insurrection) under the 14th amendment but, short of that, there are many ways a career recidivist might weasel out of the law's criminal net.

If Trump gets on the ballot, even under criminal charge, he might win. In theory, he could be elected while under indictment and serve as president behind bars, as the constitutional requirements for the presidency are quite limited and never mention criminal servitude.

As American Prospect commented: 

"How in the world did we become a country where 70 million-plus people ever thought that this dangerously evil lunatic should be trusted with the most powerful job in the world, and apparently still do?" 

Salon added: 

"He is a damaged, destructive narcissist, beyond all help. But the really disturbing question now is why so many people are eager to believe his dangerous fantasies." 

FROM ROGER FITCH AND OUR FRIENDS DOWN UNDER AT JUSTINIAN.

 

Election deniers get elected

ROGER FITCH ESQ • SUNDAY, NOVEMBER 13, 2022

Roger Fitch in Washington takes a close look at the mid-term results ... Abortion probably played a bigger role than the Big Lie ... Pre-election meddling by the Supreme Court ... Not all the crazies lost ... The Republican House has inquisitions planned ... Voting rights and abortion protected in some state ballots 

The Democrats have maintained control of the senate, possibly increasing it, but lost the house.

The house result was predicted: it's usual in non-presidential election years for lemming-like voters to punish the incumbent president's party for perceived policy failures mostly attributable to obstruction by the party they now vote for. But more was involved than unworldly and uninformed citizens. 

Echoing Bush v Gore, the Republican-aligned supreme court intervened in the elections, this time before election day. Through shadow docket orders made without briefing or oral argument, the court rigorously applied its Purcell principle to allow use, this year, of Republican-gerrymandered voting districts already rejected as unconstitutional. 

Prior supreme court rulings liberating campaign contributions from regulation fuelled campaign costs exceeding $16.7 billion.

While other factors (inflation, high petrol prices) played a part, it was the outdated and gerrymandered districts that delivered a rigged house majority to a "destructionist" Republican Party. 

Before the election, the "wildcard" was thought to be the Big Lie, the imaginary theft by Mr Biden of the 2020 election, credulously believed by Trump supporters; in fact, it may have been abortion. 

In the event, the Republican "red wave" in congress, arrogantly assumed by media, never materialised. The Democrats' off-year loss of house seats was minor compared to the midterm defeats of the last three presidents.

Some of the Democrats' losses were own goals: in New York, the defeat of incumbent Democrats could be attributed to the conservatives and Republicans appointed to New York's top court by the deal-making, now-ousted, Democrat governor Andrew Cuomo; the result was new voting districts gerrymandered to benefit minority Republicans, who picked up a stunning four seats in a liberal Democrat stronghold.

The Democratic National Committee supported extreme Republican primary candidates on the theory that they would be easier to defeat in the general election, and this risky ploy largely worked. Who were these Republican candidates? 

According to the Atlantic, Republicans had been "forced to lower their- and our - standards for admission to public office, because the destruction of dignity is the only way they can find the candidates who will do what decent men and women will not, including abasing themselves to Donald Trump." 

To its credit, the media reported some of the more unbalanced Republican nominees for congress, e.g, Ohio's JR Majewski, a "Trump-backed lawn painter" who wanted to "abolish all unconstitutional three letter agencies," including the FBI. 

Majewski lost, but two of the other "five craziest" Republican candidates for congress have been elected: George Santos in New York and Derrick Van Orden in Wisconsin, the latter a veteran of the January 6 disturbances.

On the Washington Monthly's list of 10 worst candidates (including two crazies from the above list), all of them (except Texas AG Ken Paxton, see below) lost, including the alarming Republican candidates for secretary of state (election supervisor) in Nevada and Arizona.

The worst Trump candidates for the house (Washington State's Joe Kent), senate (Pennsylvania's Mehmet Oz) and  governor (Michigan's Tudor Dixon, Pennsylvania's Doug Mastriano and almost certainly, Kari Lake in Arizona), lost, but some Trumpistes won: Nevada's new governor Joe Lombardo and Ohio senator JD Vance. Georgia senate candidate Herschel Walker could possibly win. 

So the house has fallen, as predicted, to gerrymandering Republicans and some Trump acolytes. What will follow in a Republican house? Well, inquisitions are planned, and Mother Jones is not optimistic. But with Democrats in charge of the senate and the White House, Americans will be spared the scary new laws Republicans were proposing , schemes that Trump still plans for 2025. 

Meanwhile, all is not lost for Republican radicals: the counter-revolution will proceed in the judicial branch, where a wholesale dismantling and remodelling of the constitution is being engineered by the most conservative supreme court since 1931. 

Trump: down for the count

≈   ≈   ≈

Some of the election results:

• Wisconsin, the Republican "laboratory for dismantling democracy", has re-elected Senator Ron Johnson, the most ignorant and (after Ted Cruz) obnoxious US senator. However, the party failed to obtain the veto-proof  legislature needed to frustrate its re-elected Democrat governor, Tony Evers, whose opponent had promised permanent Republican government.

• In Florida, a 25-year-old Afro-Cuban Democrat became the first member of "Gen Z" elected to congress;

• Maryland chose its first African-American governor, the Oxford-educated Democrat Wes Moore;

• Democrats made significant gains in state legislatures and governors;

• The Democrats flipped a senate seat in Pennsylvania while keeping those in Arizona and Nevada;  

• The top cop in Las Vegas has been elected Republican governor of Nevada;

• Ohio elected a Trump-endorsed Republican senator (JD Vance) to an open Republican seat;

• Georgia will hold a run-off for the senate as neither the Democrat incumbent or his woeful Republican opponent obtained 50% of the vote, and Georgia doesn't have preference voting (in the US, "ranked-choice" or "instant run-off" voting);

• Alaska has ranked choice, and will hold a further election this month where four qualifying candidates from November 8th compete (the top two contenders are both Republicans);

• America's worst state attorney general, Ken Paxton, has won his second four year re-election since being indicted for securities fraud; and

• America's most partisan "secretary of state", Kris Kobach, will now make trouble as Kansas Attorney General.

Supported by Big Money, more than half of the Republican candidates for office this year spouted the stolen election claim, and 200 election-deniers (including new Ohio senator Vance) were elected, but voters rejected most of the worst, e.g, New Hampshire senate aspirant Brig Gen (ret) Don Bolduc.

Female voters proved critical 

Even so, the "Sedition Caucus" has grown: so far, 145 Republican election-deniers have been elected to the house, a larger group than the 139 Republicans who fought against counting official electoral votes following the January 6 Capitol invasion.

Some of the most frightening election deniers were those seeking to supervise elections, but they failed to be elected in key states such as Michigan.

There were five Republican candidates for state election supervisors who claimed Democrats only win by cheating, and all of them appear to have lost. If any had won, they would have been well-positioned to wreak maximum mischief for Herr Trump in the 2024 presidential election. 

Courts are the only thing still standing in the way of complete election subversion. Curiously, however, election-denying officials still don't seem to realise they can face criminal charges for misconduct. Their post-election lies can also invite defamation claims.

State ballot initiatives to protect voting and abortion rights have succeeded. In California, Michigan and Vermont, abortion rights have been entrenched in the state constitution, and Kentucky voters rejected a constitutional amendment that sought to prevent courts recognising the right to abortion.    

More ballot measures here and here. 

 

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. 

≈   ≈   ≈

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." 

≈   ≈   ≈

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. 

≈   ≈   ≈

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. 

≈   ≈   ≈

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.

≈   ≈   ≈

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.

≈   ≈   ≈

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.