Law

Trust The GOP, Do You?

Well, read this:

Political data gathered on more than 198 million US citizens was exposed this month after a marketing firm contracted by the Republican National Committee stored internal documents on a publicly accessible Amazon server.

The data leak contains a wealth of personal information on roughly 61 percent of the US population. Along with home addresses, birthdates, and phone numbers, the records include advanced sentiment analyses used by political groups to predict where individual voters fall on hot-button issues such as gun ownership, stem cell research, and the right to abortion, as well as suspected religious affiliation and ethnicity. The data was amassed from a variety of sources—from the banned subreddit r/fatpeoplehate to American Crossroads, the super PAC co-founded by former White House strategist Karl Rove.

Deep Root Analytics, a conservative data firm that identifies audiences for political ads, confirmed ownership of the data to Gizmodo on Friday.

Another Terrorist Attack In London

Last night, a van with three people drove into a crowd of worshipers in Finsbury Park, a district in North London. One person was killed, ten were injured.

It was a terrorist attack, but not a typical one that garnishes worldwide press attention. Because this time, the terrorists were white and the targets were Muslim.

Here’s what is known so far:

— The driver of the van, a 48-year-old white man, was wrestled to the ground by people at the scene and held until police arrived. He has been arrested on suspicion of attempted murder, according to police.
— Muslim Welfare House CEO Toufik Kacimi said the attacker shouted “I did my bit, you deserve it.”
— Imam Mohammed Mahmoud of the Muslim Welfare House stopped an angry crowd from turning on the van driver, telling the furious mob: “Do not touch him.”  This will, and should, get much notice. The imam followed Islam and protected the man from the furious mob.
— Police have not named the man arrested, but the van bears the logo and phone number for Pontyclun Van Hire in south Wales.
— UK Security Minister Ben Wallace, speaking on BBC Radio 4’s World At One, said, “This individual, so far as we know at the moment, was not known to us.”
— All of the victims were from the Muslim community, police said.
— One man was found dead at the scene, according to police, but it’s not clear if he was killed during the attack. Police said he was already receiving first aid when the attack unfolded.
— Two people were treated at the scene, May said, and eight others have been taken to three hospitals. Two of them are seriously injured.
— Islington’s Seven Sisters Road, where the attack took place, is home to at least four mosques, and would have likely been filled with worshipers leaving late-night taraweeh prayers.
— The Islington borough of north London, of which Finsbury Park is a part, is home to a large Muslim community. Around 10% of the borough’s population is Muslim.
— It’s been nearly 24 hours and Trump and the White House have not talked about it.

Then there is this:

The death of a Virginia teenager who police say was assaulted and then disappeared after leaving a mosque in the Sterling area isn’t being investigated as a hate crime, authorities said Monday.

On Sunday, police found the girl’s remains and a 22-year-old man has been charged with murder in connection with the case.

The mosque, the All Dulles Area Muslim Society (ADAMS) in Sterling, and relatives identified the girl as 17-year-old Nabra Hassanen of Reston.

Fairfax County police identified the man charged with murder in her death as Darwin Martinez Torres of Sterling. On Monday, they did not release any explanation as to why they weren’t investigating the murder as a hate crime.

Relatives identified the slain teen as Nabra Hassanen, 17, right, of Reston, seen in a social media post with a filter. (All Dulles Area Muslim Society Center)

According to accounts from police and a mosque official, a group of four or five teens were walking back from breakfast at IHOP early Sunday when they were confronted by a motorist. All but one of the teens ran to the mosque, where the group reported that the girl had been left behind, according to Deputy Aleksandra Kowalski, a spokeswoman for the Loudoun County Sheriff’s Office.

“Immediately thereafter, the ADAMS’ personnel notified both Loudoun County and Fairfax County authorities who immediately began an extensive search to locate the missing girl,” the mosque said in a statement.

Loudoun and Fairfax police jointly conducted an hours-long search around Dranesville Road and Woodson Drive in Herndon, which is in Fairfax. Remains thought to be the girl’s were found about 3 p.m. Sunday in a pond in the 21500 block of Ridgetop Circle in Sterling. During the search, an officer spotted a motorist driving suspiciously in the area and arrested Torres, police said.

Police said they collected several articles of evidence but declined to provide further details.

The girl’s mother said detectives told her that Nabra was struck with a metal bat.

The ISIS-type terrorists want to start a holy war. It looks like some stupid whiteys are willing to play into that.

UPDATE:   Aaaaand this is happening in France

This was a car loaded with explosives which rammed into a police van on the Champs-Elysees in Paris. The driver of the car was killed. No explosion. No other injuries, but it appears to be a botched terrorist attack.

Supreme Court Notes

Some US Supreme Court news this morning:
 
(1) North Carolina has – um, HAD — a law that said registered sex offenders could not go to certain sites on the Intertubes. The Supreme Court struck down that law, saying it violated First Amendment. The decision was 8-0, although there was sharp disagreement about how much states can regulate Internet use.  The opinion is here.
 
(2) The US Trademark Office cannot prevent an Asian-American rock group called “The Slants” from registering that name, even though it might be offensive. Another First Amendment victory.
 
(3) The Supreme Court took a case on political gerrymandering (where the party in power gets to redraw districts that favor themselves). They’ve never struck down a political gerrymandering case before, but some say they just might this time. The case started when Republicans gained complete control of Wisconsin’s government in 2010 for the first time in more than 40 years. It was a redistricting year, and lawmakers promptly drew a map for the State Assembly that helped Republicans convert very close statewide vote totals into lopsided legislative majorities.

In 2012, Republicans won 48.6 percent of the statewide vote for Assembly candidates but captured 60 of the Assembly’s 99 seats. In 2014, 52 percent of the vote yielded 63 seats.

Verdict in on Philando Castile Killing

Remember this? I wrote about it last year.

A Minnesota jury has reached a verdict in the manslaughter trial of Jeronimo Yanez, the officer who fatally shot Philando Castile during a traffic stop last year.  Yanez is on trial for one count of second-degree manslaughter and two counts of intentional discharge of firearm that endangers safety because Castile’s girlfriend and her 4-year-old daughter were also in the car.

Announcement soon.

UPDATE: NOT GUILTY ON ALL COUNTS

Of course.

What’s This Tweet About?

Trump’s not busy enough. He’s got free time to watch TV and get defensive. His tweets this morning railed against the “fake news” media and how there was no proof that his campaign (or, in his phrasing, he himself) colluded with Russia to affect the outcome of the election. (He also incorrectly claimed that the investigation had only been going for seven months: It began last July.)

But one tweet is confusing many people, including myself.

Who is he referring to? We know that the “FBI director” is James B. Comey, whom he fired in early May. But who is “the man who told me to fire the FBI director”?

We know two things about that second person from Trump’s tweet. That person told him to fire the FBI director, and that person is investigating him.

At first pass, that would seem to indicate that he’s referring to Deputy Attorney General Rod J. Rosenstein, who appointed former FBI director Robert Mueller to serve as special counsel, leading the independent investigation into the Russia affair.

Rosenstein also wrote a letter last month outlining concerns about Comey that Attorney General Jeff Sessions then passed on to Trump with the recommendation that Comey be fired.

While that seems like it fits with Trump’s description, then — it actually doesn’t. First of all, Rosenstein’s letter never called for Comey’s firing. (It’s also worth noting that Trump told NBC’s Lester Holt that he planned to fire Comey anyway.)  Obviously, Trump is trying to rewrite the record here, albeit badly.

Second of all, the description of Rosenstein as investigating Trump is a bit off. The special counsel is investigating Trump, and Rosenstein can fire Mueller if he wishes, but he’s not in charge of that investigation. Rosenstein also has jurisdiction over the FBI’s investigation into the Russia matter.

So maybe Trump’s actually referring to Mueller? Mueller’s certainly investigating him — but there’s no indication that Mueller told Trump to fire Comey.

The safest answer: Trump is referring to Rosenstein — and trying to impugn the deputy attorney general by ensnaring him in the firing of Comey at the outset. Which raises another question …

2. Is Rosenstein’s role in the matter tainted? WaPo’s Matt Zapotosky raised this point on Twitter.

This issue of his letter to Trump about Comey was not a point of concern when Rosenstein first appointed Mueller. Of course, at that point the investigation wasn’t into Trump’s alleged attempt to lean on Comey to curtail the investigation into Michael Flynn. ABC News reported that Rosenstein had privately acknowledged to friends that he might need to recuse himself for that reason.

Which could be true. If Rosenstein letter was part of a “plot” to provide justification for Comey’s firing, that’s problematic for Rosenstein… even if he was not part of the plot.  He may have a conflict being Mueller’s higher-up.

What would happen if Rosenstein were to recuse himself from oversight of the special counsel?

The duty would fall to the associate attorney general who was recently appointed, Rachel Brand. A 44 year old conservative, Brand was barely alive when Nixon tried to fire his special counsel.  It is expected that Brand, unlike Rosenstein might be the one to do Trump’s bidding, if he ever decides to fire Mueller.

So, with Trump repeatedly tweeting about this being a “witch hunt”, does that “mystery tweet” today suggest that Trump knows the path to getting rid of the special counsel?

Yes, this IS a reality show.

UPDATE from… uh…. Fox News:

Fox News reports:

A source confirmed to Fox News that Trump’s tweet was referring to Rosenstein. However, a seperate source close to Trump’s legal team said the president was NOT confirming he was under investigation. He was simply referring to the content of a recent Washington Post story.

The Sessions Sessions

Ok, I’ll liveblog SOME of Sessions hearing before the Senate Intel Committee, but again, I expect he’ll talk about what he wants to talk about and then filibuster (or rely on executive privilege) when trapped in a corner.

2:56 pm

Sessions has no recollection of meeting, talking to Russian ambassador or other Russian official at the Mayflower hotel.


(Kislyak must be the gray-haired guy on the right)

Never discussed anything with any foreign agent about any campaign ever.

Sessions says he was victim of Franken’s “rambling question” after six hours of testimony.  Getting a little faux outraged in his opening statement here. (What Sessions is leaving out is that AFTER his hearing answer to Franken, he also left it out of written answers, which staff vet carefully.)

Sessions says it’s “absurd” to say his recusal should have kept him from participating in the Comey firing. He’s claiming he can narrow his stated recusal *from* campaign matters to *only* the Trump campaign.

Sessions appears to stand by his earlier assertion — that he recommended firing Comey due to his handling of Hillary email investigation.

Sessions pretty much confirms Comey’s conversation with Sessions about problems with the White House (Trump) talking directly to Comey about Russia. Except…

And now he’s talking about drugs and crime and gangs.  Talking a lot about it.  His favorite subject.

Aaaaaand that’s the gist of his statement.  I don’t doubt most of it. In fact, I don’t think Sessions was ever involved in any collusion (even though his inability to remember meetings with Russians is… uh…. troubling).

I’ll update if he says anything different under questioning, but I suspect this is all we will get out of him.

Sessions will not talk about conversations with President — NOT based on executive privilege but based on long-standing Department of Justice “policy”.

I think this is a good summary so far:

Wait…. that’s different from “longstanding DOJ policy”. I mean, it’s bullshit too, but it’s also different.

Oh my God. That’s disconcerting. As is this:

Tom Cotton is really reprehensible.

Kamala Harris is up. She wants to ask questions and he wants to stall and take long answers. She wants documents.

And the Chair admonishes her.

Yup.

Can Trump Fire Mueller?

This is complicated and I don’t have much time. So hold on.

Trump does not have the legal authority to fire special prosecutor Mueller directly, but that doesn’t mean Trump can’t TRY.  For Trump to fire Mueller, he TECHNICALLY must order the Attorney General to fire Mueller.  If Trump tried to fire Mueller directly, Mueller could (and probably would) choose not to “recognize” Trump’s independent authority to fire him.

But wait, there’s another problem. If Trump asked Attorney General Sessions to fire Mueller — well, Sessions technically can’t either, because he recused himself from all matters relating to Russia… and that would presumably mean that he is recused from hiring or firing the special counsel looking into Trump-Russia collusion. Then again, Sessions was the one who fired Comey, and he probably should not have for the same reason.  So if Sessions tried to fire Mueller on Trump’s order, Mueller could choose not to “recognize” Mueller’s independent authority to fire him.

The correct person to fire Mueller (on order from Trump) is deputy AG Rob Rosenstein, the one who appointed Mueller to special prosecutor.

Whoever does it, it is very much like the Saturday Night massacre in Watergate.  There, Nixon told his attorney general Elliott Richardson to fire independent special prosecutor Archibald Cox. Richardson refused so Nixon fired him.  Nixon then told Deputy Attorney General William Ruckelshaus to fire Cox. Ruckelshaus also refused and Nixon fired him too. Nixon then ordered the Solicitor General of the United States, Robert Bork, as acting head of the Justice Department, to fire Cox. Both Richardson and Ruckelshaus had given personal assurances to Congressional oversight committees that they would not interfere, but Bork had not. On November 14, 1973, federal district judge Gerhard Gesell ruled firing Cox was illegal absent a finding of extraordinary impropriety as specified in the regulation establishing the special prosecutor’s office.

It was a constitutional crisis.

The situations between now and then are strikingly comparable. The question is if Rosenstein will carry out Trump’s bidding, or if Sessions would, or if Trump would simply try to do it directly…. if he tried at all.

When questioned last week by Senator Kamala Harris of the Senate Intelligence Committee (who seemed to be looking well down the road), Rosenstein refused to say whether he would exercise his authority to fire Mueller if it ever came down to that.  At least, he refused to say in open session.

With all that said, I don’t think Trump will try to fire Mueller, despite what Newt Gingrich and others are saying.  Not only are the minefields legally (see above), but the political fallout just might be too much — even for Republicans.  After Nixon tried to fire Cox, public support crashed for Nixon (what little remained) and impeachment rose rapidly in the polls.

At that point, Republicans in Congress would join Democrats to appoint an independent counsel (just like they did in Watergate, where they appointed Jaworski).  Heck, it could be Mueller again.

So huge risk, low reward. I don’t think Trump would try this, but God knows what advice he is getting, and whether he will follow it.

UPDATE:  Rosenstein just happens to be testifying before the Appropriations Committee today.

He also says AG Sessions “theoretically” has power to fire Mueller.

Aw, Susan Collins goes to the direct question:

Maryland And DC Attorneys General File Lawsuit Against Trump Under Emoluments Clause

Although CREW currently has a lawsuit going, the attorneys general of Maryland and DC have filed a lawsuit today against President Trump, citing a constitutional violation of the Emoluments Clause of the Constitution.  The damage? Well, they claim, the US is effectively not living up to the Constitution, a document that Maryland signed onto in part because of the Emoluments Clause.  Also, they are losing tax revenue.

Here is the full complaint:

The Comey Memos — Part Two

So some idiot at Redstate is making the argument that the Comey Memos were leaked in contravention of the law:

The documents leaked by Comey were official government records. Period. They were created by a government employee (Comey) while acting in his official capacity (FBI director) on a government-issued laptop while sitting in a government car driven by another government employee and probably in the company of a government security detail.

See how he pulled a Spicer there (“Period.”)?  As if saying “period” makes his argument stronger.

Still, he has a point. The Comey memo is an official government record.

You know what else is an official government record? A social security check. A letter from the IRS. Lots of things.

The moron continues:

The documents are not “unclassified.” The documents, by the very fact that they recorded a conversation with the president, would have carried a ‘confidential’ classification.

Ummmmm…. No, it wouldn’t.  Or as we say in the fact-checking business, CITATION NEEDED.

Here’s the deal — private conversations with the President are not automatically classified.  They’re just not.  Classification is based on the content, not on the parties.  If that were the case, then forget the memos.  Even TESTIFYING about any private conversation with the President would be a no-no.

Once you recognize that a private conversation with the President is not classified, you can see that a memo summarizing a private conversation with the President is also not classified.

Another thing about classification — who does this idiot think makes classification calls in the first place? Comey is the head of the FBI. He can classify or declassify anything he damn well wants, including his own work product.

But the moron continues:

There is zero way it would not have been classified ‘for official use only’ as the conversation was inarguably covered by executive privilege. The memos were the property of the US government and are clearly covered under the Federal Records Act.

Well, there is a difference between documents that are classified, documents that are subject to executive privilege, and documents covered by the Federal Records Act. The Comey memos were not classified; they were not subject to executive privilege (and if they were, Trump waived that privilege); and the Federal Records Act only deals with maintaining and preserving those documents (I’m sure the FBI has copies, so, no problem there).

He then goes on to discuss 18 U.S. Code § 641, which says:

Whoever embezzles, steals, purloins, or knowingly converts to his use or the use of another, or without authority, sells, conveys or disposes of any record, voucher, money, or thing of value of the United States or of any department or agency thereof, or any property made or being made under contract for the United States or any department or agency thereof… Shall be fined under this title or imprisoned not more than ten years, or both; but if the value of such property in the aggregate, combining amounts from all the counts for which the defendant is convicted in a single case, does not exceed the sum of $1,000, he shall be fined under this title or imprisoned not more than one year, or both.

The word “value” means face, par, or market value, or cost price, either wholesale or retail, whichever is greater.

A rather dumb argument. I suppose Comey did steal the paper that he printed or made photocopies on.  But the he didn’t “convert” or “convey” the actual RECORD itself, which presumably is still on his laptop.

And then he finally links to an FBI website which says that that the FBI has policy and procedures regarding discretionary release of information in accordance with the Privacy Act.  Guess who has discretion?

HUGE Redstate fail. Embarrassing.

Did Comey Break The Law By Revealing His Memo Contents To The Press?

No, and in fact, if Trump goes after Comey for dong that, Trump could get in deeper trouble. Here’s why:

As the news broke, I was on the phone with Stephen Kohn, partner at a law firm focused on whistleblower protection. We’d been talking about where the boundaries lay for Comey in what he could and couldn’t do with the information about his conversations with the president. Kohn’s response to the story about Kasowitz, though, was visceral.

“Here is my position on that: Frivolous grandstanding,” he said. “First of all, I don’t believe the inspector general would have jurisdiction over Comey any more, because he’s no longer a federal employee.” The inspector general’s job is to investigate wrongdoing by employees of the Justice Department, of which Comey is no longer, thanks to Trump.

“But, second,” he continued, “initiating an investigation because you don’t like somebody’s testimony could be considered obstruction. And in the whistleblower context, it’s both evidence of retaliation and, under some laws, could be an adverse retaliatory act itself.”

In other words, Comey, here, is an employee who is blowing the whistle, to use the idiom, on his former boss. That boss wants to punish him for doing so. That’s problematic — especially if there’s no evidence that Comey actually violated any law that would trigger punishment.

Trump’s Tweets Today Are The Most Unhinged And SELF-Destructive (And It’s Only 10:00 AM)

God knows why they just don’t take his phone away. Or give him a fake phone with a fake Twitter account.

This is how bad it has gotten: Trump’s own advisers have gone on television and stated that Trump’s tweets are not his policy.  Well, who knows? How can we tell? Would Trump agree with that?

Even this morning, Kellyanne Conway said that the media is obsessed with Trump’s tweets, implying that people should not place emphasis on them.  But that is in contradiction from what others in the White House – and Trump himself — have said:

“This obsession with covering everything he says on Twitter and very little what he does as president …” Conway said during that interview.

“That’s his preferred method of communication with the American people,” said Craig Melvin, the show’s co-host.

“That’s not true,” Conway interjected.

“Well, he hasn’t given an interview in three weeks, so lately it has been his preferred method,” Melvin replied.

Even setting aside that three-week modification, Melvin is correct that the administration has touted Twitter as being more important than media coverage. After Trump won the presidency in November, he and his team were asked if he would stop tweeting so much as president. The answer? No — because the media can’t be trusted.

Shortly after the election, Trump spoke with CBS’s Leslie Stahl, telling her how he planned to moderate his Twitter use once he was sworn in.

“I’m going to do very restrained, if I use it at all, I’m going to do very restrained,” he said. “I find it tremendous. It’s a modern form of communication. There should be nothing you should be ashamed of. It’s — it’s where it’s at.”

By January, his description of his Twitter habit was a bit less enthusiastic.

“Look, I don’t like tweeting. I have other things I could be doing. But I get very dishonest media, very dishonest press. And it’s my only way that I can counteract,” Trump told Reuters in January. That’s the theme: The media is the enemy, so Trump will tweet to the people directly.

On ABC’s “This Week” in January, incoming press secretary Sean Spicer made that same case.

And more to the point, even if his tweets are not policy, they sometimes contradict policy.  And that makes for headaches for Trump’s team.

Today being a prime example. Let’s start with his first four tweets of the day (which apparently were made while watching Morning Joe on MSNBC):

Let’s start with the first tweet at the bottom, where he calls “it” a “travel ban” and a “watered down, politically correct” version of his original executive order which banned all travel from 7 mostly-Muslim nations. Arguably, Trump is showing his intent to disfavor Muslims by the executive order, a point that has doomed the executive orders in court so far. In court briefs, DOJ lawyers have said the orders are “religion-neutral” in operation, drawing “distinctions among countries based on national-security risks identified by Congress and the Executive Branch, not religion, and applies evenhandedly in the six designated countries.”

There is also a glaring problem: the revised travel ban was authored by Trump’s administration and signed by Trump himself — the Justice Department’s role is merely defending its legality.  Why is he taking umbrage with the Justice Department?

In any event, his tweets this morning on the subject of the travel ban hurt his already weak case.

Next up on this morning’s hit parade, this:

Again, he was watching Fox & Friends and they were apparently talking about vacancies.  Odd that he would blame the Democrats, since they do not control the Senate (who has to improve Ambassadors and other certain posts).

Almost two months ago, Politico did a story on why this is taking so long, and it has nothing to do with the Democrats:

Hundreds of key jobs across the federal government remain vacant as a result of an overworked White House personnel office that is frustrating Cabinet secretaries and hampering President Donald Trump’s ability to carry out his ambitious legislative agenda.

The process is bogged down as a result of micromanaging by the president and senior staff, turf wars between the West Wing and Cabinet secretaries and a largely inexperienced and overworked staff, say more than a dozen sources including administration insiders, lobbyists, lawyers and Republican strategists.

Trump personally oversees the hiring process for agency staff by insisting on combing through a binder full of names each week and likes to sign off on each one, according to two people with knowledge of the administration’s hiring process. Also weighing in on the names — and not always agreeing on final picks — are leaders of sometimes warring factions, including chief of staff Reince Priebus, senior strategist Steve Bannon, Cabinet secretaries and, sometimes, the White House’s top lawyer, Don McGahn.

“It’s like a medieval court,” said one person advising potential nominees through the confirmation process. “The White House meets once a week to go over personnel in some attempt to create uniformity, but in this White House, you just have to smile at that. … It’s hard to impose uniformity among the White House’s different coalitions.”

The only uniformity is that potential hires must show fealty to the president. One person close to the White House said a sense of “paranoia” has taken over amid fears that disloyal hires might undercut Trump’s agenda or leak to the press.

Another reason they are having a hard time getting positions filled? People don’t want to serve under Trump. especially with a special counsel investigation and FBI probe hanging over the White House.

Even if it were true that Dems were somehow slowing up the confirmation process, that doesn’t explain the vacancies. From the LA Times:

What’s the effect? Just eight of 120 State Department posts, including ambassadorships, that require Senate confirmation have been filled, according to the Partnership for Public Service. As a result, foreign officials and diplomats struggle to find someone to discuss trade and security issues with.

We have officially entered hurricane season with no head of NOAA and no head of FEMA.

And in the Pentagon, Trump has filled only five of the 53 top jobs – the slowest pace for nominations and confirmations in over half a century. No Army Secretary. No Navy Secretary.

The hold-up, insiders say, is Trump’s insistence on absolute loyalty… to him.

The Washington Post has a wonderful database tracker page to keep up with Trump’s lack of progress on filling key positions.

And finally, Trump’s final tweet of the morning (we hope):

This is Trump engaging in an attack against London mayor Sadiq Khan (a Muslim) when Khan said that is “no reason to be alarmed”. Trump attacked that quote, complaining that London had just had a terrorist attack, and they should be freaking out (I guess).

What happened here? Trump watched Fox News, which had truncated the quote and changed its meaning:

But Mr Trump’s criticism is based on a quotation entirely removed from its context. He appears to be confused about what happened in part because Fox News repeated the same short quote but without the full remarks from the mayor of London.

What Mr Khan actually said was that there is no reason to be alarmed about the increased police presence on the streets after the attack.

“My message to Londoners and visitors to our great city is to be calm and vigilant today,” Mr Khan said. “You will see an increased police presence today, including armed officers and uniformed officers.

“There is no reason to be alarmed by this. We are the safest global city in the world. You saw last night as a consequence of our planning, our preparation, the rehearsals that take place, the swift response from the emergency services tackling the terrorists and also helping the injured.”

There is no reason to be alarmed by this… with “this” referring to the increased police presence.

Rather than admit he was misquoting Khan, Trump doubled down… on the mayor of a city just attacked by terrorists.

Could it be because this particular mayor is Muslim?

Today could have been a good day for Trump — he intended to announce an infrastructure bill (which Dems could get behind). But he squandered it with these Tweets.  With Comey testifying in a few days, Trump does not have many more chances to have “good days”.

The “Unmasking” Diversion

Over at Fox News, they use the word “unmasking” a lot. To me, it looks like they haven’t realized it is a common practice in the intelligence community. They just use the word a lot so that their low-information viewers will think it is bad.

“Unmasking”, of course, is the process whereby a redacted name of an American citizen is unredacted for someone who is reading an intelligence report.  A request is made to unmask the name so that the reader can better understand and perhaps act on the information (or fully advise another)

Unmasking is not leaking.  When the name of a U.S. person is unmasked, that information is provided only to the intelligence official who requested that unmasking. There’s no equivalence between so-called unmasking and leaking.  Of course, the recipient of unmasked information could then illegally disclose it through a leak. But that’s leaking.

Unmasking is not a crime. The process for unmasking vary from agency to agency and case by case depending on how the information was collected. But the exact procedures are not publicly known and may be classified.

Even if it turns out that procedures weren’t followed, people would most likely be subject to administrative discipline. It’s still not a crime.

But Trump and obedient Republicans have to switch focus to something other than possible Russia collusion, so “unmasking” is their go-to.  In the recent subpoenas sent out by the House Intelligence Committee, half of them were related to investigations of “improper unmasking.”

Never mind that these allegations have already been thoroughly debunked. In April, numerous media outlets, citing both Republican and Democratic congressional sources, reported that intelligence reports pertaining to the communications of Trump’s advisers with foreign agents were “normal and appropriate” and contained “no evidence of wrongdoing.”

Even Trump is pimping the unmasking. His tweet today:

It’s really not.  As I said, even improper unmasking is an administrative slap on the wrist.

But Trump has a bigger problem.  Pushing the “unmasking and surveillance” line only leads to more information about why requests were made. And when that information comes to the surface, well, that’s a path that’s been harmful to Trump’s cause thus far.

I don’t think he sees that many moves ahead.

Trump Loses In Federal Court…. Again…. This Time on Sanctuary Cities

A federal district court ruling yesterday bars President Trump from withholding funds from jurisdictions that refuse to cooperate with federal agencies to deport undocumented immigrants, marking his second setback in court on immigration.  The first setback, of course, was his Muslim ban.

Before I get to the substance of this post, first things first:

No, it wasn’t the Ninth Circuit that ruled against Donald — it was a federal district court — one level down.  Yes, the court is within the Ninth Circuit, but it isn’t the ACTUAL Ninth Circuit court itself.  So the next stop isn’t the Supreme Court, it’s the Ninth Circuit.

Also, it wasn’t JUST the Ninth Circuit that ruled against Trump’s Muslim ban; it was a federal district court in Maryland.  And Massachusetts, I believe, as well.

*Sigh*.  He apparently thinks you sue a circuit court when you don’t like a decision.

Look, the opinion was a no-brainer.

Trump’s order, signed Jan. 25, threatened to cut off funding from local governments that refuse to cooperate with immigration authorities. Santa Clara County and the city of San Francisco challenged the order, arguing, among other things, that the president doesn’t have the power to withhold federal money.

They’re right. He doesn’t.

The 49-page ruling focused largely on an all-too-familiar theme for this administration: the consequences of bragging and bluster by Trump and top administration officials.

Just like the judges who ruled on Trump’s travel ban, Judge Orrick homed in on the vast discrepancies between what government lawyers defending the sanctuary cities order argued in court and what administration officials said about it in public.

In court, the government tried to make the case that the order doesn’t actually do anything, at least not at the moment, because the administration has yet to define what exactly a sanctuary city is or threaten any particular jurisdiction with a loss of funds.  It was their way of convincing the judge to toss out the lawsuit on the grounds that no city or county has yet suffered any harm.

The problem with that approach is that administration officials boasted about how the order would force sanctuary cities to their knees, singling out particular places.  So, in court, the Trump lawyers argued that it was essentially an empty shell even though it was portrayed in news conferences, briefings and television interviews as a powerful tool to protect the public from dangerous undocumented immigrants being shielded by wayward cities and counties.

Fine,said, Judge Orrick. If the order is powerless, then surely you won’t mind if I impose this injunction which prevents you from actually doing anything. So that’s what he did.

I somehow don’t think Trump was briefed about that, because he is treating it as a loss.  Which it IS, but it’s just what his lawyers argued.

According to Orrick, the government contended that the order was merely an example of Trump using the “bully pulpit” to “highlight a changed approach to immigration enforcement” — in essence, something much more benign than what Trump and company had described.

The argument was lost on the judge, who ridiculed the government’s position as “schizophrenic.”

“If there was doubt about the scope of the Order, the President and Attorney General have erased it with their public comments,” Orrick wrote.

“Is the Order merely a rhetorical device,” he added, “or a ‘weapon’ to defund the Counties and those who have implemented a different law enforcement strategy than the Government currently believes is desirable?”

The ruling continued: “The statements of the President, his press secretary and the Attorney General belie the Government’s argument in the briefing that the Order does not change the law. They have repeatedly indicated an intent to defund sanctuary jurisdictions in compliance with the Executive Order.”

Here is the decision.  If you do nothing else, read the last paragraph.

The Terrorist You Won’t Hear About

A terrorist armed with guns and a thousand round of ammunition failed in his attempt to go on a shooting spree in America, killing and wounding unknown numbers.

You don’t about this story, because he failed in his attempt.

And also, because the terrorist is a right wing white guy:

The FBI arrested an alleged right-wing extremist who had amassed 1,000 rounds of ammunition and was said to be plotting a mass shooting.

A complaint filed in federal court and obtained by the Statesman on Monday stated that a search warrant was executed on the home of 50-year-old Steven Thomas Boehle after a confidential informant said that he was planning a shooting spree.

According to the complaint, Boehle “exhibits sovereign citizen extremism ideology.”

Although Boehle is prohibited from owning firearms due to a 1993 assault on a intimate partner, three guns were found in his home.

He was charged with making false statements about his criminal history while trying to buy additional firearms from gun dealers in the Austin area.

When people factor their sense of national security and views on firearms, they don’t factor in stories like this because these stories don’t get widespread coverage. The FBI doesn’t take a bow. Maybe they should.

Twitter Pushes Back On Trump Administration

Twitter filed a lawsuit against the Department of Homeland Security and the Department of Customs and Border Protection today. Twitter seeks an injunction barring them from asking for the identity of the person behind @alt_uscis.

It’s not clear what legal reason the Trump administration is seeking to identify @alt_uscis.  The @alt_uscis bio states: “Immigration resistance . Team 2.0 1/2 Not the views of DHS or USCIS. Old fellow drank russian soup.”  It could be a now-fired USCIS employee and they are looking for a leak, or maybe they just don’t like criticism.

Anyway, it is going to put this administration (as well as social media resistance) to a test.  Keep your eyes open.

Yeah, I Admit That I Just Emailed Rachel Maddow

I know you get a lot of email, which means I only have a few seconds to grab your interest.  Here I go…

WHY AREN’T YOU DOING A COMPLETE SHOW ON EZRA COHEN-WATKINS?
Let me bullet-point it for you:
  • Reminder: ECW is the 30-year-old White House aide — the NSC’s senior director of intelligence who started his own ‘review’ of surveillance intercepts of the Trump transition, took his findings to the White House Counsel’s office only to get told to stop. [Source: AP]

  • Although reports say that Michael Ellis and a third person gave the unmasked intel to Nunes, it seems obvious that ECW gathered this information in his ‘review’ [Source: NYT]
  • ECW is a Flynn protege [Source: NYT, above]

  • McMaster wanted ECW out, but Bannon and Kushner intervened [Source: NYT, above]  (Isn’t that intervention unusual? Why those two? Where is the Chief of Staff in all this?)

  • ECW has no face. (No, seriously. You can’t find a picture of him online, which doesn’t mean anything, but is fun/weird)

  • His wife works for a D.C. public relations firm. Her client is… Russia. [Source: a reputable blog, but I think your staff should try to confirm.]

Now the heavy stuff that nobody seems to be talking about (save perhaps Nancy LeTourneau at the Washington Monthly this morning)

  • In order to unmask a document, one needs the approval of the underlying intel agency that masked the document in the first place. Furthermore, once unmasked, you cannot share that unmasked information with another person unless it relates and is necessary to the purposes of your briefing, etc.  And finally, if you are going to share that information outside of your branch of government (say, with a congressional committee) you need to go BACK to then intel agency for further approval.  (I heard this many times last night and I believe Susan Rice said this as well.  Transcripts aren’t available yet, but someone can find this out).

  • This begs the question: regardless of why ECW got the unmasked information (i.e., on whose authority, if anybody), he would have to get permission from the underlying intel agency to share it.  Question: Did ECW follow intel protocol with the unmasked information that he obtained? Did anyone in the White House? (I suspect not)

  • Regardless of whether he got permission to share, ECW really really appears to be a leaker — or a link in within a “leak chain”  — is he not?  He cannot be a whistleblower — for that, he would have to expose wrongdoing. But even conservative news outlets acknowledge that Rice’s unmasking was perfectly legal.  So my questions are: Why hasn’t he been brought in for questioning? Why does he still have (as far as we know) security clearance?
Okay, that’s my quick pitch.

Thanks for your time.  I enjoy your show (obviously), but I won’t fanboy here.

7th Circuit: LGBTQ Discrimination IS Sex Discrimination

It’s not definitive, but this is a huge step. The Seventh Circuit ruled 8-3 that a woman who was denied a job because she was a lesbian had a cause of action under Title VII.  Title VII is the civil rights law which prevents workplace discrimination on the basis of sex, race, color, national origin, and religion. It generally applies to employers with 15 or more employees, including federal, state, and local governments. Congress has frequently considered amending Title VII to add the words “sexual orientation” to the list of prohibited characteristics, yet it has never done so.

In an opinion which many critics will call “legislating from the bench”, the 7th Circuit majority in Hively v. Ivy Tech Community College of Indiana, ruled that Title VII discrimination is applicable because “it would require considerable calisthenics to remove the ‘sex’ from ‘sexual orientation. ‘”  This is undeniably true.  If Ms. Hively had been a man with a preference for women, there would have been no issue with her being hired.  But she is a woman.  Therefore, this has to do with gender.

The dissent argues, predictably:

[Plaintiff’s attorney] is advancing a creative new legal argument for reinterpreting Title VII, deploying the comparative method not as a method of proof (its normal and intended function) but as a thought experiment with the end of imbuing the statute with a new meaning that it did not bear at its inception.

That’s a rather typical conservative judicial interpretation (unless we are talking about the word “arms” in the Second Amendment).

Anyway, this is a big step forward, and I expect that the Supreme Court will visit this soon.  Here is the full opinion:

Wow! Fox News And The White House Are Going Full Bore On This Susan Rice Thing!

It is amazing how the goalposts have moved from Trump’s initial tweets on March 10.  Let’s look at them again:

Okay.

So Obama has now become Susan Rice, Obama’s National Security Adviser.

“Wiretap” has become “names unmasked”.

“Trump” and “Trump Tower”, the object(s) of the supposed “wiretap(p)”, is not Trump associates.

But other than those things — Trump was 100% correct when he said “Obama wiretapped me”.

Here’s what we do FOR A FACT: Susan Rice — who was the NATIONAL SECURITY ADVISER — sought to unmask intelligence a lot.  When she or anybody else does this, the N.S.A. uses a two-part test to evaluate unmasking requests: “Is there a valid need to know in the course of the execution of their official duties?” and “Is the identification necessary to truly understand the context of the intelligence value that the report is designed to generate?”

The answer to these questions is often yes. “Masking and unmasking happens every single day, dozens of times, or hundreds of times. I don’t even know the numbers,” Jim Himes, a Democrat on the House Intelligence Committee, told me. “There needs to be a process followed. It’s a fairly rigorous process, involving lots of review by counsels and that sort of thing.”

There is an audit trail for these requests and the responses.  Which means that if Susan Rice was abusing this process, she did a terrible job of covering it up. All Trump’s aides had to do to discover her alleged abuse was to review logs on a White House computer that tracked her requests.

And while Republicans are targeting Rice, recklessly asserting that she spied on Trump’s campaign, their attacks also implicate the N.S.A., which would have had to determine that the intercepts had “intelligence value,” and then to approve any unmasking based on its two criteria: that Rice had “a valid need to know” the identities of masked names and that unmasking was necessary to understand the report.

And they love that it is Rice, because Rice was also involved in the non-scandal called Benghazi.

So it seems the political winds may be shifting on this story, or at least blowing in a slightly more favorable direction for the White House. But unless firm evidence of any actual wrongdoing emerges, these partial revelations, some favorable to the president and some unfavorable, are probably mostly a distraction, or at least a way to while away time, until the real news emerges from the congressional or FBI investigations.

Let’s set aside that his “story” emanates from Mike Cernovich, the man who made up stories that there is an child-sex ring literally underground at a Washington, D.C. pizza restaurant.  Let’s also set aside the fact there is nothing there.  Just don’t believe the Fox hype.

UPDATE:  The Wall Street Journal gets in on the act, with its editorial board issuing a blistering op-ed on Tuesday morning:

All this is highly unusual — and troubling. Unmasking does occur, but it is typically done by intelligence or law-enforcement officials engaged in anti-terror or espionage investigations. Ms. Rice would have had no obvious need to unmask Trump campaign officials other than political curiosity.

I can think of a need. And it is obvious. If the Russians were hacking the DNC and attempting to sabotage the election (which was known at the time by Rice), and Trump campaign officials were meeting and talking with Russian agents (which was known at the time by Rice), then I can understand why she might want that information unmasked.

Rice spoke to MSNBC shortly and said she didn’t use any such intelligence for political purposes.

“The allegation is that somehow Obama administration officials utilized intelligence for political purposes; that’s absolutely false,” she said. She added: “I leaked nothing to nobody, and never have and never would.”

She confirmed that such unmasking was part of her duties as national security adviser, without referring to specific cases.

“That’s necessary for me to do my job,” she said. “It’s necessary for the secretary of state, or the secretary of defense, or the CIA director to do their jobs. We can’t be passive consumers of this information and not — and do our jobs effectively to protect the American people. Imagine if we saw something of grave significance that involved Russia, or China, or anybody else, interfering in our political process and we needed to understand the significance of that. For us not to try to understand it would be dereliction of duty.”

Right.  And It’s circular logic. If Rice didn’t know who was on the calls how could it be a political attack? On the other hand if Trumps people hadn’t been talking to Russian operatives they wouldn’t have been recorded.

UPDATE AGAIN — CNN’s Chris Cuomo gets it:

CNN anchor Chris Cuomo told viewers on Tuesday that the controversy surrounding former national security adviser Susan Rice is “another fake scandal being peddled by right-wing media.”

Cuomo offered the remarks about Rice’s reported request to know the identities of President Trump transition team members mentioned in intelligence briefings during CNN’s “New Day.”

Rice has been accused of unmasking the Trump transition members.

“So President Trump wants you to believe that he is the victim of a ‘crooked scheme,’ ” Cuomo began. “Those are his words. And here are our words: There is no evidence of any wrongdoing.”

“And, in fact, if anything the [national security adviser] asking for identities was a reflection of exactly how much traffic there was involving Trump people and foreign players,” Cuomo continued.

“The White House blasting the press for not reporting on another fake scandal being peddled by right-wing media.”

The HB2 Repeal: Is It As Bad As Everyone Says?

Well, I find myself in the awkward position of disagreeing with friends, colleagues, and organizations that I respect (like the ACLU, of which I have been an active member for 24 years). That’s not fun. The issue? House Bill 142.

For those living under a rock, HB142 is the bill passed by the North Carolina General Assembly and signed into law by Governor Cooper yesterday. It attempts to repeal HB2 — the heinous “transgender bathroom bill” —  and more importantly (from some people’s perspective) appease the NCAA which has threatened to ban North Carolina from holding any tournaments due to HB2.

To read some of the headlines, you would think HB142 lines up transgender people and shoots them. “The HB2 “Repeal” Bill Is an Unmitigated Disaster for LGBTQ Rights and North Carolina” screams Slate. Reverend Barber calls it “an insult to civil rights“.  The ACLU says: “there is no repeal of the anti-trans HB2, only more discrimination“.

Really? There’s actually been NO repeal AT ALL?  There’s MORE discrimination?  What am I missing?  Am I the one who is crazy?

Quite possibly. But right now, I honestly believe HB 142 is a fairly decent compromise.  And it’s quite possible that the resistance may be overplaying this victory by casting as a loss.

Those who do this are wrong in my view.  HB142 is not HB2.0.

Let’s get a few things out of the way:

First, this was always going to be a compromise bill. Republicans rule the North Carolina General Assembly.  So if you expected a civil rights bill ON TOP OF a repeal of HB2, then somebody sold you a lie.  And it wasn’t Governor Cooper. Now, it is perfectly reasonable to demand that the law protect transgender people (as well as gay, bisexual, queer, etc. people). *I* demand that. But those things do not come in a day.  They just don’t. We’re STILL working on racial inequality for crying out loud.  The exercise here — with this bill — was not to get the law to protect transgender people, but to get the law to stop discriminating against them.  So if you are in the “all or nothing, today” camp, stop reading, because I practice the art of the possible, and nothing I say going forward will please you (in fact, it will likely infuriate you).

Secondly, to those who say that HB 142 doesn’t do enough — well, of course not. Again — it is a compromise bill. I have no reason to think that Roy Cooper or Senator Jackson or the others did not hammer out the best deal possible.  Again, it wasn’t intended to resolve the issue of transgender rights for all time.

Finally, I personally could not give a damn about the NCAA and where tournaments are held. I think the loss of jobs to the state are, and should be, a concern.  Same with the loss of state “prestige”. But the bottom line for me is civil rights. For me, that overshadows everything.  That’s the yardstick I am using here to measure the success, or lack thereof, of HB142 in comparison to HB2. So please don’t question my motive. I want what the ACLU and the LGBTQ community and all lovers of civil rights want – full stop, period.

That said, HB2 is dead. Can I get an “amen”?

Bueller?

Bueller?

If you read some of these articles (or scan the headlines) you would think HB2 is not dead, or that it had been supplemented with worse stuff.  So let’s break this down and discuss what HB142 — now the law — actually does.  Because it’s short, I’ll insert the entire text:

Okay, so is HB2 repealed? Yes. It’s right there in English.  Section One. Statutory Laws 2016-3 — which is HB2 — is repealed.  Click the link. Read what HB2 was.  It was a lot!  It’s gone now.

So let’s move to the NCAA gripes, because it was in plain non-legalese English, and it will help explain what is no longer.  Here, specifically, is the reason the NCAA singled out North Carolina for the proposed ban (from the NCAA website):

The board stressed that the dynamic in North Carolina is different from that of other states because of at least four specific factors: 

  • North Carolina laws invalidate any local law that treats sexual orientation as a protected class or has a purpose to prevent discrimination against lesbian, gay, bisexual or transgender individuals. 
  • North Carolina has the only statewide law that makes it unlawful to use a restroom different from the gender on one’s birth certificate, regardless of gender identity.  
  • North Carolina law provides legal protections for government officials to refuse services to the LGBT community. 
  • Five states plus numerous cities prohibit travel to North Carolina for public employees and representatives of public institutions, which could include student-athletes and campus athletics staff. These states are New York, Minnesota, Washington, Vermont and Connecticut. 

The second and third factors are gone. HB142 wiped them out with the stroke of a pen.  The fourth factor relies on those other cities, but they will presumably permit travel to North Carolina now.

That’s not nothing.  That’s something.  That’s a victory.  Can we acknowledge that?

To be sure, it returns us to the status quo — i.e., the time Charlotte’s ordinance protecting those with non-conforming gender identity. Is the government working to protect the transgender community from discrimination?  Nope.  But now the government is not doing the actual discrimination itself, and, yes, that is big.

It’s like desegregating the public water fountains, even though the business-owned lunch counters remain segregated.  It’s NOT “nothing”; it’s NOT “worse”. It’s an improvement.

What about the NCAA’s first factor and the argument that HB142 does not allow Charlotte and other communities to pass laws protecting the transgender community (at least until 2020)?  I shake my head at that argument, and this is where I think most people have it wrong. We shouldn’t WANT local municipalities to have the power to “enact or amend an ordinance regulating private employment practices or regulating private public accommodation”.

Why not?

Because hundreds of communities in North Carolina will take the opportunity to stick it to the LGBTQ community.

What’s the point of repealing HB2 if Apex, North Carolina (for example) can turn around and pass its own version next week?  You see, not every community in North Carolina is as enlightened as Charlotte or Raleigh or Asheville.  In fact, most aren’t (drive through East Carolina one day).  And LGBTQ people are everywhere in North Carolina. Taking legislative power away from local municipalities was a feature, not a bug.

Also, it is better off if the battlefield is the state legislature — ONE state legislature — rather than hundreds of cities, town, incorporated settlements, etc.  The “resistance” lacks the resources to fight the transgender discrimination issue in every NC municipality and win. Leaving invidious prejudicial treatment to the whims of local legislatures would allow pockets of prejudice to exist for decades (see, for example, the school district in Mississippi which finally became racially desegregated this month!)

What happens in 2020, when the prohibition is lifted?  In truth, it matters little.  The provision to kick the can down the road wasn’t meant to postpone justice.  And it certainly wasn’t meant to postpone injustice.  It just acknowledges reality — that no matter what the state legislature does, it will end up in the courts, as everything does with civil rights.

Put another way — you’re not going to end discrimination against the transgender community completely until a court says so. End of story. You can’t legislate “equal protection under the law” because it is a constitutional/legal issue, not a political one.  And by 2020, these issues will have been worked out.

Yes, it is true that repealing HB2 probably killed North Carolina lawsuits against HB2 (rendered them moot).  But there are plenty of other lawsuits out there, most notably, Grimm v. Gloucester County School Board, regarding the 17 year old transgender male student in a Virginia high school. Sent back down to the Fourth Circuit from the U.S. Supreme Court a few weeks ago, it is likely to go back up as soon as the Fourth Circuit decides (both sides are likely to appeal).  And the outcome there will govern what happens in North Carolina — mostly likely in 2019.

So what do we have to be upset about?  HB2 is no more. HB2-like discrimination cannot sneak in through the back door via local legislatures.  And everything is on hold until the courts resolve this, which they were going to do anyway.  It hasn’t slowed down the litigation track.

“Justice delayed is justice denied” is a maxim used by Martin Luther King, Jr., but dates back to William Penn and even the Magna Carta. I wholly acknowledge that transgender people have every reason to be anxious and upset that the guarantee of their civil rights were not met on March 30, 2017.  I don’t know who or what led them to believe the a Democratic governor in a mostly-conservative state could deliver them their rightful legal protections in one fell swoop.

But if they are angry, then I say good.  They need to be; everyone needs to be.  But nobody should feel defeated by HB142, as many do.  The system works, albeit slowly, and if you don’t remind people every once in a while of their victories, then cynicism wins.  And when cynicism wins, corruption and prejudice is not far behind.

This goes in the win column, and we need to remain vigilant. THAT’S my point.  I ask permission to revise and extend my remarks as needed.

Disdain For Democracy

Worse than lying, says Greg Sargeant:

Trump is enraged at being subjected to a system of democratic and institutional constraints, for which he has signaled nothing but absolute, unbridled contempt. The system is pushing back, and he can’t bear it.

On Monday morning, the latest chapter in this tale — Trump’s unsupported accusation that Obama wiretapped his phones — took another turn. Trump’s spokeswoman said on ABC News that Trump does not accept FBI Director James Comey’s claim — which was reported on over the weekend — that no such wiretapping ever happened.

As E.J. Dionne writes, this episode is a “tipping point” in the Trump experiment. Trump leveled the charge based on conservative media. Then, after an internal search for evidence to back it up produced nothing, the White House press secretary called on Congress to investigate it and declared the administration’s work done. While the previous administration did wiretap, the problem is the recklessness and baselessness of Trump’s specific allegations, and the White House’s insistence that the burden of disproving them must fall on others — on Congress and on the FBI. Trump’s allegations must be humored at all costs, simply because he declared them to be true — there can be no admission of error, and worse, the White House has declared itself liberated from the need to even pretend to have evidence to back up even Trump’s most explosive claims.

This is more than disdain for the truth. It represents profound contempt for our democratic and institutional processes. In this sense, it’s only the latest in what has become a broader pattern:

  • When the media accurately reported on Trump’s inaugural crowd sizes, the White House not only contested this on the substance in a laughably absurd manner. It also accused the press of intentionally diminishing Trump’s crowd count, thus trying to delegitimize the news media’s institutional act of holding Trump accountable to factual reality.
  • Trump has tweeted that the media is the “enemy of the American people” and has accused the media of covering up terrorist plots. Stephen K. Bannon has railed against the press as “the opposition party.” Trump gave a recent speech heavily devoted to attacking the media, once again for deliberately and knowingly misleading Americans. All this goes far beyond merely questioning the media’s role as an arbiter of truth.
  • After getting elected, Trump continued to repeat the lie that millions voted illegally in the election, undermining faith in American democracy. When the media called out this falsehood, the White House threatened an investigation to prove it true, which hasn’t materialized, in effect using the vow of investigations as nothing more than a tool to obfuscate efforts to hold him accountable.
  • After a court blocked Trump’s travel ban, Trump questioned the institutional legitimacy of the “so-called judge” in question. He also cast the stay as a threat to our security, even though the ban has no credible national security rationale, something that has now been demonstrated by leaks from the Department of Homeland Security (exactly the sort of leaking that has Trump in a fury). Senior adviser Stephen Miller flatly declared that the ban would be reintroduced in part to demonstrate that Trump’s national security power “will not be questioned,” thus declaring the explicit goal of sweeping away institutional checks on it. And then the White House delayed introduction of the new ban in order to continue basking in good press from his speech to Congress, thus undercutting its own claim that this is an urgent national security matter.
  • Trump continues to hold court at Mar-a-Lago, using the power of the presidency to promote his own resort, whose membership fees sink money into his own pockets. The White House publicly intervened in a business dispute involving Trump’s daughter and even tried to steer customers her way, an act which Kellyanne Conway embellished by cheerfully sticking a rhetorical middle finger in the face of anyone who finds such behavior troubling.

We’re witnessing a level of total disdain for basic democratic and institutional processes that defies description, and perhaps calls for a new vocabulary. But the story does not end here. As Benjamin Wittes and Quinta Jurecic explain in a great piece, the almost comical lack of good faith that Trump and the White House are showing toward our processes is inspiring an escalation in institutional pushback — from the courts, the media, government leakers, and civil society — that is having much more of a constraining effect than Trump ever could have anticipated. Indeed, the Trump White House’s ongoing conduct is itself producing the very systemic resistance that now has Trump in such a rage.

Another Doc Dump – Indictment Against Dude Threatening JCCs

The rash of threats against Jewish Community Centers appears to be partly solved [UPDATE: Very partly. We’re only talking about 10% of the threats and vandalism seen nationwide lately]. Federal G-men arrested Juan Michael for making threats against many JCCs in an attempt to stalk/frame his ex-girlfriend. He appears to be a copycat though. Still, scary dude.

Who’s Sorry Now?

On July 25, 2015, Joe Torres and Kayla Norton, joined about a dozen other people in a convoy of pickup trucks waving large Confederate flags as they drove around Douglas County, a suburban Atlanta community. Most of them belonged to a group called “Respect the Flag.”

This was only a few weeks after Dylann Roof attended a prayer service at Emanuel African Methodist Episcopal Church in Charleston, South Carolina, then shot and killed nine people, all African Americans.

The convoy of trucks passed by the victim’s residence where the victims were grilling hot dogs and hamburgers while hosting a child’s birthday party featuring a bouncy castle, snow-cone machines, and a DJ.  They yelled racial slurs.

The drivers parked the trucks near the house and the slurs continued. Torres retrieved a shotgun from his vehicle, pointed his shotgun at the group of African American party-goers and stated he was going to kill them while his friends stated that “the little ones can get one too,” referring to the young children at the party.

Norton was accused of making similar threats. The victims said some member of Torres’ group was armed with a knife and a tire tool.

Most of the group was arrested and made some sort of plea deal.  But Torres and Norton were sentenced yesterday. Torres was sentenced to 20 years, with 13 years in prison, after a jury convicted him on three counts of aggravated assault, one count of making terroristic threats and one count of violating of Georgia’s Street Gang Terrorism and Prevention Act.  Kayla Norton was sentenced to 15 years, with six years in prison. She was convicted on one count of making terroristic threats and one count of violation of the Street Gang Act.

Look how sad they are.

I suspect they weren’t sad until they actually got caught.

At the sentencing hearing, Kayla Norton apologized for her role in the incident saying, “I want you all to know that is not me. That is not me, that is not him. I would never walk up to you and say those words to you. I’m so sorry that happened to you. I am so sorry.”

The problem is that she did walk up and say those words.

Oh well. No sympathy here. Actions have consequences.  I’m sure they will make many friends among the mixed-race populations in prison.

Lot Of Hypocrisy About Leaks

The Pentagon Papers was a leak from Daniel Ellsberg. It helped de-legitimize the Vietnam War.

Deep Throat was Mark Felt, a top FBI official. He gave Woodward and Bernstein the deep background on the Watergate scandal.

Edward Snowden leaked information about US government surveillance programs.

Chelsea Manning leaked documents and video relating to Iraqi air strikes, diplomatic cables, and Gitmo, most of which did not put the US in good light.

Vice President Cheney outed Valerie Plame as a CIA operative in order to exact revenge on her husband, a critic of the Bush Iraq War policy.

To most people, one of more of these people are heroes — one of the “good guys”.  But they were all leakers.

Everybody constructs reasons for leaks they like and leaks they don’t like. But it is hard to come up with a non-hypocritical reason for distinguishing “good leaks” from “bad leaks”.

We’re at a remarkable point in history where the president accuses his own intelligence community of working against him, as exhibited by his tweetstorm this morning:

What sounds hollow about all this is that Trump was totally fine — in fact he PRAISED — Wikileaks when it printed the John Podesta emails.

I know, I know. The Podesta emails weren’t technically leaks.  They were hacks by the Russians.  But doesn’t that make it WORSE?  Think about it.  The President is fine with Russian intelligence stealing secured information and making it public — in fact he encouraged it! — but he’s upset about “illegal” leaks from American intelligence sources?

It really does beg the question — whose side is the President on?  At best, it cements the notion that he is in the pocket of Russia.

Redstate’s Patterico’s Analysis of the 9th Circuit Decision Against Trump

Don’t normally quote from the conservative Redstate blog, and I rarely agree with Patterico (the author) on anything.  But this analysis is so good — so spot on — that I am reprinting it in full:

As you have no doubt heard, the Ninth Circuit today issued an opinion upholding the District Court’s TRO halting much of Trump’s order on immigration. This post analyzes the decision, which can be read here. Throughout, I’ll grade my own previous predictionsabout the ruling.

My overall impression is that this is a sound legal ruling — and that Donald Trump is personally to blame for it. By allowing Steve Bannon & Co. to write the order in a sloppy and overbroad manner, and further allowing them to decide that it applied to green card holders, Trump issued an the order that was bound to fail.

Perusing Twitter tonight, I see that many people who support the policy behind the order (as I do), but who have not followed the legal arguments closely, are saying this is just another leftist Ninth Circuit decision. But the order is a unanimous “per curiam” (through the court) ruling. It was joined by a judge appointed by George W. Bush who, at oral argument, expressed skepticism towards the idea that the order was motivated by religious bias, and seemed receptive to the argument that these countries might pose a threat.

The Twitter lawyers point out that this was not a ruling on the merits — and that’s right . . . but the merits still factored into the decision. A subtle point — brought up in the oral argument but missed by many observers — is that once the District Court entered the injunction, the burden shifted to the Government to show on appeal that it was likely to win in the trial court. The Court held that the Government had failed to make that showing. This portion of the ruling, then, does relate to the merits. The Court also held that the Government failed to show irreparable injury, since the TRO put the U.S. back in the same state of affairs that had existed for years.

According to the opinion, the executive order’s principal potential flaw was that it may have deprived a substantial number of people of due process, in three ways (the following paragraph describes the states’ arguments, which the Government failed to rebut for purposes of this appeal):

First, section 3(c) denies re-entry to certain lawful permanent residents and non-immigrant visaholders without constitutionally sufficient notice and an opportunity to respond. Second, section 3(c) prohibits certain lawful permanent residents and non-immigrant visaholders from exercising their separate and independent constitutionally protected liberty interests in travelling abroad and thereafter re-entering the United States. Third, section 5 contravenes the procedures provided by federal statute for refugees seeking asylum and related relief in the United States.

The decision to interpret the order as applying to lawful permanent residents was reportedly made by Trump advisers Steve Bannon and Stephen Miller. This was clearly the most troubling aspect of the order to the judges — as well as the aspect of the order that stood out to most objective observers as the dumbest part of the order. As I said in my analysis of the oral argument: “I think even Judge Clifton would be on board with staying the executive order to the extent it applies to LPRs [lawful permanent residents].” What I didn’t predict outright was that Judge Clifton would find this enough to join an opinion upholding the entire TRO; I had expected that he would file a concurring opinion agreeing that the TRO was appropriate as applied to LPRs, but only as to LPRs.

The Government argued that the issue of the application of the executive order to LPRs was moot, because the White House counsel had interpreted the order as not covering LPRs. But the court was not convinced, noting that the White House counsel is not the President — and, since the Administration had given so many contradictory statements on this point, nobody can be certain that they won’t apply it to green card holders again:

[I]n light of the Government’s shifting interpretations of the Executive Order, we cannot say that the current interpretation by White House counsel, even if authoritative and binding, will persist past the immediate stage of these proceedings

Basically, the court said the order is clearly illegal in denying re-entry to LPRs and non-immigrant visa holders, and they aren’t going to rewrite the order (or let the White House counsel rewrite it) to conform to the law. That’s the President’s job. The court said that the Government’s different proposals for limiting the scope of the TRO still resulted in potential due process violations.

The lack of due process for LPRs was the central aspect of the opinion, and it was completely avoidable. The fault lies with Donald Trump.

As to the argument that Trump was targeting Muslims, the Court’s language seemed carefully crafted to maintain the unanimous nature of the opinion. I predicted there were two votes for a finding of possible religious discrimination, based on Trump’s repeated statements during the campaign that he wanted a Muslim ban — but Judge Clifton was clearly skeptical of this claim. The Court dealt with this by saying: “The States’ claims raise serious allegations and present significant constitutional questions” (language clearly inserted by Judges Canby and Friedland) but refused to use this as a ground to uphold the TRO, instead reserving the issue for later, after further litigation in the District Court (an evident concession to Judge Clifton to get him on board with this opinion).

This means that Donald Trump’s mouthing off about a Muslim ban wasn’t the reason for today’s decision — but it could still have legal consequences down the line.

In other aspects more of interest to lawyers than others, the court (as predicted) found standing based on the states’ proprietary interests, and treated the injunction as an appealable preliminary injunction rather than a TRO proper, because of the length of the briefing schedule. (These are also aspects I predicted correctly based on the oral arguments.)

In summary, this is a solid legal opinion and I don’t see it being reversed by the Ninth Circuit en banc or by the U.S. Supreme Court. The judges did their jobs and they did them well. They won’t get a lot of credit for this from political partisans, but they’ll get it from me.

Yup.

Redstate by the way is now a conservative blog in exile. In a world of Brietbarts and Infowars, it remains a bastion of logical reasoned conservatism.  It is a credible opposition to the progressivism that I espouse — with emphasis on the word “credible”.

Here, for posterity’s sake, is the full opinion:

Former NC Governor Pat McCrory Needs Protection From Words

News & Observer:

Does former North Carolina Gov. Pat McCrory need protection? Do all current and former public officials? At least one state senator thinks so.

After a video was posted on Facebook Friday showing a group of people following McCrory during a trip to Washington, D.C., for inaugural weekend, chanting “Shame!” and calling him a bigot, Sen. Dan Bishop of Charlotte says he’ll introduce legislation to protect public officials.

The proposed legislation would “make it a crime to threaten, intimidate, or retaliate against a present or former North Carolina official in the course of, or on account of, the performance of his or her duties,” Bishop said.

“Because lines are being crossed,” Bishop, a Republican who represents the 39th District in the North Carolina Senate, wrote in an email from his Senate campaign account.

Bishop was one of the sponsors of House Bill 2, or “the bathroom bill” which McCrory signed into law. The bill was criticized for nullifying local non-discrimination ordinances statewide, directing transgender people to use restrooms and locker rooms matching the gender on their birth certificate in government-owned buildings and initially revoking the right to sue in state court for discrimination.

Bishop calls the group of people of indeterminate number “a chanting mob” and “ubiquitous leftist rioters” and wonders whether the “mob fell upon the former governor by coincidence or if they stalked him.”

Bishop said such behavior should come with a five-year prison sentence and said he’ll introduce the legislation to make it so in North Carolina, similar to an ordinance in the District of Columbia.

“So should it be in North Carolina,” he wrote. “This is dangerous. Jim Hunt, Bev Purdue and other governors never faced riotous mobs in their post-service, private lives, without personal security.”

Bishop said he also will urge his fellow legislators “to take other appropriate steps to guarantee the personal safety of Gov. McCrory by all means necessary.”

This is the video:

Now, whatever you think of the McCrory or the protesters, there is this little thing called the First Amendment.  But I won’t lecture here.  This State Senator ought to know better.

Obama (Belatedly) Takes Action Against Russian Hackers

Moments ago, the Obama administration struck back at Russia, imposing sanctions against its intelligence apparatus and expelling 35 diplomats in retaliation for the alleged orchestration of hacking attacks designed to interfere in the presidential election.

The sweeping actions outlined by the White House three weeks before the new administration takes office include:

  • Shutting down two compounds, one in in Maryland and one in New York, “used by Russian personnel for intelligence-related purposes.”
  • Sanctions against the Russian intelligence services GRU and FSB, and four high-ranking officers of the GRU. The sanctions are also aimed at two suspected hackers, including one wanted by the FBI in two other cases, and three companies that allegedly provided support to the GRU’s cyber operations.
  • Releasing technical information about Russian cyber activity, “to help network defenders in the United States and abroad identify, detect, and disrupt Russia’s global campaign of malicious cyber activities.”

“These actions follow repeated private and public warnings that we have issued to the Russian government, and are a necessary and appropriate response to efforts to harm U.S. interests in violation of established international norms of behavior,” President Obama said in a statement.

In his statement, Obama said the U.S. had declared 35 Russian “intelligence operatives” persona non grata. The State Department said the 35 are diplomats “who were acting in a manner inconsistent with their diplomatic or consular status” and accused Russia of harassing U.S. diplomats overseas.

As of noon on Friday, the U.S. also will bar Russian access to two Moscow-owned “recreational compounds,” the White House said. No further detail was provided, but since 1972, the Russians have owned a historic estate overlooking the Chester River in eastern Maryland. They also own a recreation facility in Glen Cove, Long Island.

The White House said the actions will go beyond those announced Thursday.

“We will continue to take a variety of actions at a time and place of our choosing, some of which will not be publicized,” Obama said in his statement.  Meaning, covert stuff.

Here’s a poster:

And here’s the FBI White Paper on the issue:

Paul Ryan throws in muted support saying, “While today’s action by the administration is overdue, it is an appropriate way to end eight years of failed policy with Russia. And it serves as a prime example of this administration’s ineffective foreign policy that has left America weaker in the eyes of the world.”

Moscow was quick to respond:

And whose side will President-elect Trump take? Obama’s?  Unlikely.  Ryan’s (“About time you terrible Obama person!”)?  Or Russia’s (“Nyet!!”)?

Anyone want to guess?

He’s quiet now but I doubt that’ll last.

UPDATE: 

NC Legislature Still At It

Despite protests, widespread criticism and a threat by the governor-elect to challenge in court any moves that he believes would unconstitutionally limit his power, the Republican-controlled North Carolina legislature is pushing through reforms that would severely limit the incoming Democratic governor’s power.

It’s insane.  One such measure, which passed the House, was that the GOP and the Democratic Party would alternate the years in which they serve as the head of the Board of Electors in each county.  The catch? The GOP will chair all 100 county boards of elections in high-turnout even-numbered years (2018, 2020, 2022, etc.).

And get this…

How indeed?  Do they think we don’t see the inherent disadvantage that one party chairs the board of elections during even-numbered years?

Fortunately, there is pushback from the Dems about the LACK of bi-partisanship.

As I write this, there are citizen protest in the gallery.  They are trying to close the gallery now.

Other measures include the partisan election of NC Supreme Court judges.  The trend in America is to move AWAY from partisan elected judges (i.e., where judges indicate their political party).  But North Carolina is to become the first state since Pennsylvania in 1921 to move back to partisan Supreme Court judge elections.

LATE UPDATE:  SB4 passes and is signed by Gov. McCrory

SB4 would create a bipartisan commission merging the current State Board of Elections, State Ethics Commission and the lobbying functions of the Secretary of State’s office, although Democrats correctly say that there is nothing “bi-partisan” about it.

Democrats said it couldn’t be called bipartisan because they weren’t involved in creating the proposal. Republicans call it bipartisan because it would create a state board and county election boards comprised of members equally split between the parties. It would also deprive the incoming Democratic administration of control of those boards; currently, the administration can appoint three of the five state members and two of the three members on each county board.

Democrats also argued that the bill is far-reaching and should be discussed in more detail in the long session next year. Republican sponsors said the ideas in the bill have been discussed in the legislature for years, and that this is a good time to make the changes because there is no impending election.

The bill would also give Gov. Pat McCrory the authority to make a one-time appointment to fill a vacancy on the state Industrial Commission for a six-year term plus the unexpired portion of the commissioner’s term. Normally, a vacancy replacement only fills out the remainder of a term.

It would also identify state Supreme Court candidates by party in primary elections.

AND MORE:

Good way to phrase it.

Another bill nearing final legislative approval would force Cooper’s Cabinet choices to be subject to Senate confirmation.

More Fake News Believers Getting Violent

This is getting out of hand:

A Tampa woman is accused of making death threats to the parent of a first grader who died in the Sandy Hook massacre.

Investigators say 57-year-old Lucy Richards is among those who believe the 2012 shooting, that killed 20 children and 6 adults, was all a hoax. Her disbelief is so strong, investigators say she targeted a father who lost his child in the shooting. That man now lives on the east coast of Florida.

According to the indictment ,Richards contacted the father four times on January 10, saying things like, “You gonna die, death is coming to you real soon,” “there’s nothing you can do about it,” and “look behind you, death is coming to you real soon.”

Richards was arrested Monday. She is charged with four counts of transmitting threats in interstate commerce. With each count carrying a maximum of five years in prison, she could spend 20 years behind bars, if convicted.

Richards is not alone in her beliefs. There’s a whole online community of people certain the Sandy Hook shooting was staged.

She is the second person this week facing criminal charges due to conspiracy theories. Sunday, Edgar Welch was arrested for bringing a gun  inside a Washington, D.C. pizzeria. He told police he was there to self-investigate a child trafficking ring he read about on a website, which has since been discredited and labeled “fake news.”

Psychologist Dr. Mark Prange says it’s often a long-term emotional habit of not using reasoning makes people cling so tightly to conspiracy theories.

“The story is going to always be more powerful than the logic,” Prange said. “Not using a process that says, what are the checks and balances of the beliefs I am holding to and not being open that allows the belief system to get locked into almost a delusional way of looking at the world.”

He says trying to help someone locked into an extreme belief system can be challenging, “because that belief may be more important or may be so threatening for them to face why they’re holding it.”

Prange said, “It can snowball if one has not had educational experiences or family experiences or even social experiences where their beliefs are challenged.”

Lucy Richards’ next hearing is December 19.

And speaking of Edgar Welch, here is the federal complaint released today.  Edgar Welch is the man who fired an assault rifle in a D.C. pizzeria earlier this month.  From the complaint, we learn that he allegedly recruited two other individuals to join in his investigation of patently false claims that the restaurant was the center of a child sex slave ring connected to the Clintons.  Welch texted several friends attempting to convince them to drive up to Washington, D.C., with him to check out Comet Ping Pong. He texted one friend, identified in the document as “B,” a link to a YouTube video about “Pizzagate” and included the note “Watch PIZZAGATE: The Bigger Picture on YouTube.” Another friend, identified as “C,” initially thought his pal intended to drive to North Dakota to “save the Indians from the pipeline,” but Welch clarified with the texts: “Way more important, much higher stakes” and “Pizzagate.” C wrote back: “Sounds like we r freeing some oppressed pizza from the hands of an evil pizza joint.” Welch replied by encouraging his friend to watch a YouTube video about “Pizzagate.” Ultimately, the two friends did not join Welch on his quest. The document also shows that Welch was prepared to kill, telling C that the mission would involve “sacraficing [sic] the lives of a few for the lives of many.”

UPDATE: Alex Jones seems to be cleaning up after himself by scrubbing his website of Pizzagate references:

“Pizzagate: The Bigger Picture” is the headline Infowars used for a December 1 article promoting a video from Infowars producer Jon Bowne that pushes the pizzagate conspiracy theory. Jones tweeted the headline on December 1. The headline was also used on YouTube by a non-Infowars accounts to promote the Infowars video.

Welch also told The New York Times that he listens to Jones, and he reportedly liked Infowars on Facebook.

Jones and Infowars appear to be scrubbing commentary about pizzagate. Jones’ YouTube channel posted a November 23 video headlined “Pizzagate Is Real: Something Is Going On, But What?” The video has since“been removed by the user,” though it’s not clear when.

Walter Scott Follow-Up

It has been a year and a half since Walter Scott’s death.  I wrote about it here… but basically, he was running from a cop and was shot IN THE BACK As HE WAS RUNNING AWAY.  The video makes this crystal clear:

There’s even indication that the cop planted evidence on/near the body.  Yes,. look at the video.

So what happened at trial?

But despite an unarmed victim, forensics proving he was shot multiple times in the back, a police officer who made a false report, and clear video showing the entire debacle, Slager was not convicted of murder or manslaughter in his trial this week. A lone juror spared him that fate with a refusal to convict. That triggered a mistrial.

Something is horribly wrong with the system.

Fortunately, the prosecutor will retry the case.  Again.  For the THIRD time.

Even operating under a standard in which police officers get the benefit of every reasonable doubt, it seems hard to understand why the cops involved wouldn’t have been convicted of manslaughter. The fact that neither was convicted is the latest evidence that the system as it now exists does not reliably punish cops for even egregious killings.

The policy debate around policing has lately focused on the tactics and rhetoric of Black Lives Matter (while mostly ignoring its excellent Campaign Zero roadmap for policy reform). Whatever conservatives think of Black Lives Matter, it is long past time that more of them join with libertarians and liberals in an effort to address this problem: Armed agents of the state are killing American citizens at rates far higher than other developed countries, and even when videos show them killing unarmed individuals, some are somehow getting away with it.

Does Korematsu Provide Precedent For A Muslim Registry?

No.

No, it doesn’t.  Not even a close call.

Let’s just all get on the same page.

This is happening:

And the obvious question is…. would it be constitutional for the government to require citizens to register based on their religion?

The OBVIOUS answer should be NO, and the reason most people instinctively know it would be unconstitutional is to do a thought experiment: substitute “Christian” for “Muslim” and see how that flies.

I’m going to set aside the obvious invidiousness of the proposed registry, as well as the obvious difficulties in enforcing registration.  Instead, I’m just going to focus on Korematsu v. United States, 323 U.S. 214 (1944), the case that Trump surrogates are citing as “precedent”.

Korematsu was the case involving Japanese-American internment during World War II.  Roosevelt ordered that George Takei and his family and other Japanese-Americans leave their jobs, friends, businesses, etc. and report to “camps” for the duration of the war.  These were American citizens, living on the West Coast, of Japanese descent.  It came about as the result of a presidential executive order — Executive Order No. 9066 to be exact.

Fred Korematsu was born in Oakland, California, in 1919, the third of four sons to Japanese parents Kotsui Aoki and Kakusaburo Korematsu who immigrated to the United States in 1905.  When the internment order came down, he refused to comply and went into hiding in the Oakland area. He was arrested on a street corner in San Leandro on May 30, 1942, after being recognized as a “Jap”.  He was tried and convicted of violation of a military order – specifically, the military order for internment given under the authority of Executive Order 9066.

That military and executive orders were challenged and the US Supreme Court upheld the internment of Japanese-Americans, with three dissents.

Korematsu is still good law, so I revisited it. Why did the Supreme Court find such an order to be constitutionally valid?

One reason was precedent.  One year earlier, in a case called Hirabayashi v. United States, the Supreme Court upheld a curfew which applied only to the Japanese.

But addressing the race issue, the majority wrote only this:

It is said that we are dealing here with the case of imprisonment of a citizen in a concentration camp solely because of his ancestry, without evidence or inquiry concerning his loyalty and good disposition towards the United States. Our task would be simple, our duty clear, were this a case involving the imprisonment of a loyal citizen in a concentration camp because of racial prejudice. Regardless of the true nature of the assembly and relocation centers — and we deem it unjustifiable to call them concentration camps, with all the ugly connotations that term implies — we are dealing specifically with nothing but an exclusion order. To cast this case into outlines of racial prejudice, without reference to the real military dangers which were presented, merely confuses the issue. Korematsu was not excluded from the Military Area because of hostility to him or his race. He was excluded because we are at war with the Japanese Empire, because the properly constituted military authorities feared an invasion of our West Coast and felt constrained to take proper security measures, because they decided that the military urgency of the situation demanded that all citizens of Japanese ancestry be segregated from the West Coast temporarily, and, finally, because Congress, reposing its confidence in this time of war in our military leaders — as inevitably it must — determined that they should have the power to do just this. There was evidence of disloyalty on the part of some, the military authorities considered that the need for action was great, and time was short. We cannot — by availing ourselves of the calm perspective of hindsight — now say that, at that time, these actions were unjustified.

Basically, they are saying — “we’re at war”.

The dissent by Justice Roberts was having none of it:

This is not a case of keeping people off the streets at night, as was Hirabayashi v. United States,320 U. S. 81, nor a case of temporary exclusion of a citizen from an area for his own safety or that of the community, nor a case of offering him an opportunity to go temporarily out of an area where his presence might cause danger to himself or to his fellows. On the contrary, it is the case of convicting a citizen as a punishment for not submitting to imprisonment in a concentration camp, based on his ancestry, and solely because of his ancestry, without evidence or inquiry concerning his loyalty and good disposition towards the United States. If this be a correct statement of the facts disclosed by this record, and facts of which we take judicial notice, I need hardly labor the conclusion that Constitutional rights have been violated.

And that is essentially the difference.  We’re not at war with the Muslims — there has been no declaration of Congress to that effect.  Furthermore, there is no “military urgency” now like there was following the bombing of Pearl Harbor (it is more than 15 years after 9/11).  Two good reasons right there.

Then you have something that you didn’t have in Korematsu, which was a case about heritage.  The proposed Muslim ban isn’t about heritage; it is about religion.  “Muslim”, after all, simply means an adherent to the religion of Islam.  Islam knows no national origin or skin color.  Cassius Clay, a black American, didn’t come from another country.  Yet he was a Muslim (which he became Muhammad Ali).

So if this is registry of religious beliefs, — welcome First Amendment.

There’s simply on way in hell this Supreme Court would be cool with registering Muslims.  It would be unanimously shot down, even without overturning Korematsu.

In fact, that would be a nice way to start the Trump presidency.  With a 8-0 loss in the Supreme Court.

What Happens If Trump Loses?

Prepare for a meltdown from Republican presidential nominee Donald Trump if he loses the election.

He has repeatedly told supporters that he fears the election could be rigged, an indication that even if Democratic nominee Hillary Clinton wins, Trump might not accept it.

“First of all, it was rigged,” Trump said of the Democratic primary during a recent rally in Columbus, Ohio. “And I’m afraid the election is going to be rigged, I have to be honest.”

In Pennsylvania, Trump also made the same argument on the campaign trail.  Trump is well behind Hillary Clinton in polls. No Republican has won the state in a presidential election since 1988.  But he made that statement anyway.

And let’s not forget what Trump said at a campaign rally in Wilmington, North Carolina — he said that if Hillary Clinton is elected president, she will “abolish the Second Amendment” and “if she gets to pick her judges,” there’s “nothing you can do”, adding, cryptically, “Although the Second Amendment people, maybe there is…. I don’t know.”

That all went away when the polls tightened, but now that Hillary has returned to her earlier lead, expect to hear more of this “rigged” language. Maybe not from Trump, but certainly his supporters in the media.  Bill O’Reilly is scheduled to do an expose on about voter fraud tonight.  Other conservative pundits prop this up in fact-free articles with misleading “scare” headlines.

The on-again off-again conspiracy of a rigged election is confusing to Trump supporters who live in their own fact-free bubble.  They insist that Trump is going to win AND that the election is rigged, which…. uh… well, watch:

Aside from Trump, you have scarier voices in the not-so-hidden underbelly of the GOP.  People like Matt Bevin, who was elected governor of Kentucky last year after expressing “absolute” support for marriage-refusing county clerk Kim Davis.  Last month, he said this:

Somebody asked me yesterday, I did an interview and they said, “Do you think it’s possible, if Hillary Clinton were to win the election, do you think it’s possible that we’ll be able to survive? That we would ever be able to recover as a nation? And while there are people who have stood on this stage and said we would not, I would beg to differ. But I will tell you this: I do think it would be possible, but at what price? At what price? The roots of the tree of liberty are watered by what? The blood, of who? The tyrants to be sure, but who else? The patriots. Whose blood will be shed? It may be that of those in this room. It might be that of our children and grandchildren. I have nine children. It breaks my heart to think that it might be their blood that is needed to redeem something, to reclaim something, that we through our apathy and our indifference have given away.

That’s Timothy McVeigh shit, right there.  That’s calling for “patriots” to spill blood (or have their own blood spilled).  And the triggering event?  HRC’s election.

I hope I am wrong.  I hope leveler heads prevail.  But Trump could easily incite violence if he loses.  And who can honestly say that he would never do that?

P.S.  Unrelated, I guess….. A humiliation.

Judge Roy Moore Is Toast

Alabama Supreme Court Chief Justice Roy Moore has been suspended from the bench for telling probate judges to defy federal orders regarding gay marriage.

The Alabama Court of the Judiciary (COJ) issued the order Friday suspending Moore from the bench for the remainder of his term.

“For these violations, Chief Justice Moore is hereby suspended from office without pay for the remainder of his term. This suspension is effective immediately,” the order stated.

The court found him guilty of all six charges of violation of canon of judicial ethics. Moore’s term is to end in 2019. Gov. Robert Bentley will name a replacement for Moore.

In its order, the COJ wanted to make sure people understood what Moore’s case was and was not about.

“At the outset, this court emphasizes that this case is concerned only with alleged violations of the Canons of Jucial Ethics,” the COJ states. “This case is not about whether same-sex marriage should be permitted: indeed, we recognize that a majority of voters in Alabama adopted a constitutional amendment in 2006 banning same-sex marriage, as did a majority of states over the last 15 years.”

The COJ also stated it is also not a case to review or to editorialize about the United States Supreme Court’s split decision to declare same-sex marriage legal nationwide.

In its 50-page order, the COJ stated it did not find credible Moore’s claim that the purpose for the Jan. 6 order was “merely to provide a ‘status update’ to the state’s probate judges.”

“We likewise do not accept Chief Justice Moore’s repeated argument that the disclaimer in paragraph 10 of the January 6, 2016, order – in which Chief Justice Moore asserted he was ‘not at liberty to provide any guidance … of the effect of Obergefell on the existing orders of the Alabama Supreme Court’ – negated the reality that Chief Justice More was in fact ‘ordering and directing’ the probate judges to comply with the API orders regardless of Obergefell or the injunction in Strawser (federal case in Alabama).”

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Winston-Salem Clown Mystery Solved

Hoaxer:

Claims of “Killer Clown” sightings in Winston-Salem have made national headlines and made Winston-Salem one of the locations for a rash of recent claims from Greenville, South Carolina to one outrageous claim of a man who claims to have pursued one of the these clowns with a machete. These sightings are similar to other incidents that seem to run in streaks resembling the “Killer Clown” sightings in Boston in 1981. Those sightings were never verified and, at least in Winston-Salem, the current sightings appear to be fabrications.

Since the two incidents that were reported on September 4th and September 5th the WSPD has continued to work diligently to locate the alleged suspect(s) in these cases or to even find proof that they existed in the first place. These investigative steps included intensive neighborhood canvasses as well as high visibility patrols in the areas where the sightings were reported as well as nearby areas where children are likely to be present. All of which cost tax-payer money and divert resources from real crimes. In addition, an emphasis was placed on conducting in-depth interviews with all witnesses and attempting to develop any other potential witnesses and/or leads to follow.

In the course of this investigation, WSPD investigators obtained video surveillance footage of the specific area of the September 4th sighting. Officers reviewed the portion of the footage covering the time frame of the reported sighting and also a period of time immediately before and after. The video surveillance did not reveal any individual dressed as a clown or anyone trying to lure children into the woods at this location.
To date, each report of the clown sightings provided to the Winston-Salem Police Department has been thoroughly investigated and according to the WSPD they have not been able to substantiate any sightings.

On Friday at 2:48am the WSPD received another call related to suspicious activity by an individual dressed in a clown costume in the area of the 1800 block of Salem Crest Lane. The caller, 24 year-old David Armstrong, reported that an individual dressed as a clown knocked on his window. Armstrong told police that he chased the clown until the subject ran into some nearby woods.

Officers conducted a thorough investigation into this incident. At the conclusion of this investigation, Armstrong admitted to fabricating the story. Armstrong was arrested and charged with Filing a False Police Report. Armstrong was placed into the Forsyth County Detention Center under $500.00 secured bond. His court date is set for September 12th. He is the first person arrested for filing a false report in any of the current “Killer Clown” sightings- none of which have produced even the most basic photo evidence that any of the events ever occurred. In an environment where almost everyone, including many children, have cell phones capable of shooting video and stills the lack of evidence thus far is damning.

I suppose I should have foreseen this outcome.  Still, the notion of clowns in the woods was too cool/scary to think otherwise.

“It Was Better In The Original German”

Many people are saying that last night’s “Immigration Policy” speech by Trump in Phoenix Arizona was historical.  I’m one of those people.  Just WHY it was historical is a point of contention.

To me, the speech was historical because it contained the 21st century version of some of the worst ills of the world’s past.  Divisiveness and demagoguery.  Mad red0faced ranting.  I really felt like this was somewhere in Germany in 1939.

The country has heard this nationalistic refrains before.

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nativist

Trump spun a dystopian tale that painted all immigrants as people to be feared, people to be rounded up and hauled out of this country.

He said immigrants would need an “ideological certification” that confirms they “share our values.”  I mean… fuck, that’s some scary Big Brother shit.

He again approvingly referenced President Dwight D. Eisenhower’s deportation program “Operation Wetback,” a cruel and deadly disaster from the 1950s, suggesting that Trump’s version of that program would be even tougher.

The crowd cheered.

He claimed there are 2 million “criminal aliens” in America and then said, preposterously, “Day one, my first hour in office – those people are gone!”

Saying that some think the word “deport” is not politically correct, Trump mocked: “You can call it whatever the hell you want, they’re gone.”

Loud. Spewing insults and absurd claims. Red-faced and nationalistic. It was Trump as we know him to be.

It was a hate speech. You could see the hands of Steve Bannon, who runs the far-right “news” site Breitbart and is now CEO of Trump’s campaign, all over it, as if Trump was barfing out the comments section under one of the site’s white nationalist screeds.

Moderate Republicans who have been praying daily for their nominee to grow into a plausible candidate had to be sickened by what they saw Wednesday night.

That wasn’t a speech on immigration policy, as the campaign had promised. That was Donald Trump thumbing his nose at the establishment and at all the pundits who suggested he was “softening” his stance on immigration.

That was an angry man catering to a base that shares his anger, a base that mistakenly believes it constitutes an electoral majority.

Trump’s swoop from supposed statesman in Mexico to manic hate-monger in Arizona was jarring. Truly.

How bad was it?  High-profile Hispanic supporters of Donald Trump have pulled or are considering pulling their support after last night’s raging speech:

Jacob Monty, a member of Trump’s National Hispanic Advisory Council, has resigned, and Alfonso Aguilar, the president of the Latino Partnership for Conservative Principles, said in an interview that he is “inclined” to pull his support.

“I was a strong supporter of Donald Trump when I believed he was going to address the immigration problem realistically and compassionately,” said Monty, a Houston attorney who has aggressively made the Latino case for Trump. “What I heard today was not realistic and not compassionate.”

He withdrew from the board following Trump’s speech in Phoenix, which was heavy on calls for border security and emphasized that all immigrants in the country illegally were subject to deportation.

We need to start talking — not about the damage that a Trump presidency would do to this country — but about the damage Trump’s candidacy is doing to this country.  Some media outlets are trying to break down Trump’s with all sorts of seriousness, and — for fear of looking biased — are afraid to do what needs to be done: an outright condemnation of Trump’s words.  This wasn’t policy — it was hate.  As the New York Times editors noted today:

To mock him for emptiness is almost too easy. But the fear and loathing that he has tapped into, that so easily won him the nomination, are real. . .  Tornadoes are hollow at the center, too, and they do a lot of damage.

Indeed.  This is a blood soaked white nationalist politics that has caught fire with a significant minority of the electorate. There’s no reason to imagine that changes before November.  Or after.

“Give me your tired, your poor,
Your huddled masses yearning to breathe free,
The wretched refuse of your teeming shore.
Send these, the homeless, tempest-tost to me,
I lift my lamp beside the golden door!”

With Trump in control of the golden door, that lamp goes dark.

Breaking: Big Victory For Voter Rights — No Voter ID In Upcoming NC Elections

NC voter ID law will NOT be enforced in fall election after the U.S. Supreme Court denies stay request (in a 4-4 split — obviously, had Scalia lived, it would have been a loss for voting rights advocates, but he didn’t so……)

The stay was a request by Republican Gov. Pat McCrory and state officials to delay a permanent injunction blocking provisions in a 2013 voting law. The 4th U.S. Circuit Court of Appeals struck down several parts of the law last month, saying they were approved by legislators with intentional bias against black voters more likely to support Democrats.

The Supreme Court decision means voters won’t have to show one of several qualifying photo IDs when casting ballots in the presidential battleground state. Early voting also reverts to 17 days.

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Is The “Second Amendment People” Comment Trump’s Worst Gaffe?

As we all know by now, Trump yesterday hinted that gun lovers could (or should? or would?) shoot Hillary Clinton and/or a Supreme Court nominee as a response to Hillary Clinton selecting judges for the Supreme Court.  Here’s the comment and campaign responses in a nutshell:

The spin from the Trump campaign is laughable.  Today, his campaign surrogates received the following talking points at 9:24 a.m. today:CpgN1kgUsAEicIv

The first point is simply “blaming the media”.

The second point spits right in the face of what everyone can see for themselves.  And as for the people in attendance?  Look at the reaction of the bearded old man sitting behind Trump (to the right of him from our standpoint).  He says, “wow”.  He knew what Trump was saying.

The third point is simply pivoting away from the subject.

As Trump’s words spread, Senator Chris Murphy, of Connecticut, where a troubled young man massacred twenty-six people at Sandy Hook Elementary School, took to Twitter. “This isn’t play,” he wrote. “Unstable people with powerful guns and an unhinged hatred for Hillary are listening to you, @realDonaldTrump.”

Gabby Giffords, an actual target of political assassination, issued the following statement via the New York Daily News:

“Donald Trump might astound Americans on a routine basis, but we must draw a bright red line between political speech and suggestions of violence. Responsible, stable individuals won’t take Trump’s rhetoric to its literal end, but his words may provide a magnet for those seeking infamy. They may provide inspiration or permission for those bent on bloodshed. What political leaders say matters to their followers. When candidates descend into coarseness and insult, our politics follow suit. When they affirm violence, we should fear that violence will follow. It must be the responsibility of all Americans – from Donald Trump himself, to his supporters, to those who remain silent or oppose him – to unambiguously condemn these remarks and the violence they insinuate. The integrity of our democracy and the decency of our nation is at stake.”

Joe Scarborough wrote that a line has been crossed and the GOP must now dump Trump.

Tom Friedman reminds us:

And that, ladies and gentlemen, is how Israeli Prime Minister Yitzhak Rabin got assassinated.

His right-wing opponents just kept delegitimizing him as a “traitor” and “a Nazi” for wanting to make peace with the Palestinians and give back part of the Land of Israel. Of course, all is fair in politics, right? And they had God on their side, right? They weren’t actually telling anyone to assassinate Rabin. That would be horrible.

But there are always people down the line who don’t hear the caveats. They just hear the big message: The man is illegitimate, the man is a threat to the nation, the man is the equivalent of a Nazi war criminal. Well, you know what we do with people like that, don’t you? We kill them.

Elizabeth Warren went for, and received, the Internet Win:

Over at Breitbart News, which I won’t link to, they were a little more honest about what Trump was saying, and agreed with it:

Trump did not suggest violence. Rather, he spoke in a way that reveals he recognizes the role an armed citizenry plays as a check on tyranny. This is James Madison 101. In Federalist 46, Madison observed that Americans are exceptional because armed and the benefit of being armed is the ability to repel tyranny. Repelling a tyranny is a defensive action, not an offensive one.

So, in Breitbart’s view, a president appointing judges you don’t like is “tyranny” which American are compelled to repel using guns.  Uh, as a defense. (Not for nothing, but Federalist 46 relates to well-regulated state militias, commanded by officers, tossing off a tyrannical federal government, not armed citizen guerillas

But I digress.

IS this the worst thing Trump has ever said?  Probably not.  We probably don’t know the worst thing he has ever said.  But during the campaign?  It’s gotta be pretty high up there.  Fortunately, Bloomberg came out with results of a poll which asked people how put off they were by the various Trump statements of this campaign.  The results:

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The mocking of the disabled reporter offended the most people.  Followed by the Khan statements, followed by “I alone can fix it.”

I don’t think Trump’s “Second Amendment” solution is as offensive as the disability comment, although it is clearly more dangerous and disconcerting.  I also don’t think it will move many minds.  At this point, if you can swallow everything that Trump has said so far, you can swallow anything.  Some people are just never going to come off that mark.

UPDATE:  Trump implies that he meant to do that — the controversy helps him.  Really.  He subscribes to the theory that there is no such thing as bad press.

Republican presidential nominee Donald Trump said Tuesday night he’s benefitting from the controversy he created earlier in the day by suggesting “the Second Amendment people” might forcefully stop Democratic nominee Hillary Clinton from appointing Supreme Court justices. […]”I have to say, in terms of politics, there is few things, and I happen to think that if [the media] did even bring this up, I think it’s a good thing for me,” Trump told Sean Hannity.

“Because it’s going to tell people more about me with respect to the Second Amendment … because Hillary Clinton wants to essentially abolish the Second Amendment.”

Which is another one of Trump’s outlandish conspiracy theories that has been debunked multiple times over.

Aaaand Trump Steps In It

He was doing so well, until he started riffing.  He went a little too far from the script.

Hillary wants to abolish, essentially abolish the Second Amendment. By the way, if she gets to pick, if she gets to pick her judges — nothing you can do, folks. Although the Second Amendment people, maybe there is, I dunno.

[Applause and whistles from audience.]

I think I know what the news will be for the next cycle or two.

Now, Trump will likely say he was “joking”.  But how is that funny?  Especially in a country that suffers from mass shootings?

Does joking about that make it better?

UPDATE:  Campaign responses:

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Is This The End Of The Line For Judge Roy Moore?

Alabama Supreme Court Chief Justice Roy Moore is set for a hearing at 1:30 p.m. (2:30 EST) today on charges he violated Alabama’s ethical standards for judges.

Moore is asking the Alabama Court of the Judiciary to dismiss the ethics complaint filed by the state’s Judicial Inquiry Commission. The Judicial Inquiry Commission is asking for a summary judgment against Moore and his removal, instead of moving the matter to a trial.

The JIC alleges Moore’s January 2016 order and his conduct surrounding it encouraged Alabama’s judges to disregard clear federal law.

Moore issued an order in January to Alabama’s probate judges, concerning same-sex marriage. Moore told the probate judges a ban on issuing marriage licenses to same-sex couples was still in effect until the Alabama Supreme Court issued a ruling.

But Moore’s order came more than six months after the U.S. Supreme Court in its Obergefell decision had ruled state bans on same-sex marriage were unconstitutional.

In a response filed with the Alabama Court of the Judiciary, Moore’s attorneys argue he was simply following the law and established procedure in his order, not defying the Supreme Court.

A thematic deception that infuses the JIC brief is that the Chief Justice ordered the probate judges that they ‘had a duty, under Alabama law, not to issue same-sex marriage licenses,’” the filing argues. “The Chief Justice, however, did not on his own initiative direct the probate judges to follow Alabama marriage law.

“Instead he instructed them that ‘[u]ntil further decision by the Alabama Supreme Court’ they were still under a state-court injunction issued by that Court. He neither endorsed nor criticized that injunction. Because consideration of the effect of Obergefell on that injunction had been pending before the Alabama Supreme Court for six months, the Chief Justice considered it prudent to remind the probate judges that the injunction still remained in effect pending its review.”

Moore was removed from the bench as chief justice in 2003 after refusing a federal court order to remove a 10 Commandments monument from the state judicial building.

Moore was re-elected chief justice in 2012.

Local news earlier:

A very late update from AL.com:

Suspended Alabama Supreme Court Justice Roy Moore will go on trial next month on judicial ethics charges after the Alabama Court of the Judiciary late Monday issued an order that denied Moore’s request to dismiss the charges.

The court, in a brief one-page order, also denied a motion by the Alabama Judicial Inquiry Commission that sought an order removing Moore from the bench without a trial.

50 Years Ago Today

Fifty years ago today, Charles Whitman, a 25-year-old engineering student and former Marine armed with a small arsenal of weapons, killed 13 people and wounded over 30 more during a shooting rampage atop the University of Texas Tower in Austin. The episode casts a long and complicated shadow. It is considered by some to have marked the beginning of the era of mass shootings; for others, the armed civilians who engaged Whitman that day suggest one way to limit the scope of such attacks.

As survivors and mourners gather to mark the anniversary on Monday, a campus-carry law that allows firearms in university buildings in Texas will also go into effect.

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Breaking: 4th Circuit Overturns Lower Court; Finds That GOP “Intentionally” Passed “Discriminatory” Voting Rights Law

The United States Court of Appeals for the Fourth Circuit invalidated North Carolina’s stringent new voting restrictions, holding that the law violates both the United States Constitution and the Voting Rights Act. The North Carolina measure, the Fourth Circuit held, has a discriminatory impact on black voters, impermissibly burdening their voting rights under the VRA. More boldly, the court also held that the law was enacted with discriminatory intent, designed by the Republican legislature to curb black voting rights in violation of the 14th Amendment’s Equal Protection Clause. This dual finding of discriminatory impact and intent makes the Fourth Circuit’s decision the boldest judicial rejection of voting restrictions in years.

As the court explains, North Carolina passed its omnibus voting bill, SL 2013-381, almost immediately after the Supreme Court freed the state’s voting laws from federal “preclearance”—meaning that after nearly 50 years under supervision, the state was finally free to change voting laws without federal oversight. The legislature promptly “requested data on the use, by race, of a number of voting practices.” And “upon receipt of the race data, the General Assembly enacted legislation that restricted voting and registration in five different ways, all of which disproportionately affected black voters.” The new law created draconian requirements for valid voter ID, eliminating those IDs most commonly used by black voters; cut back early voting and killed same-day registration; eliminated preregistration for teenagers; and eliminated out-of-precinct voting for voters who accidentally showed up at the wrong precinct in the correct county.

Every single one of these restrictions disproportionately burdened black voters; indeed, as the Fourth Circuit writes, SL 2013-381 seemed to “target African Americans with almost surgical precision.” (Meanwhile, there is essentially no evidence that voter fraud ever occurs in North Carolina.) The evidence that the legislature enacted SL 2013-381 for precisely this purpose—to hamper black voting rights—is almost overwhelming. Indeed, the state even acknowledged that it had eliminated one early voting day, a Sunday, because it was a traditional “souls to the polls” day, when black voters were provided transportation from church to the polls. “Counties with Sunday voting in 2014 were disproportionately black” and “disproportionately Democratic,” the legislature said—so, in response, it did away with one of two days of Sunday voting. This, the Fourth Circuit writes, is “as close to a smoking gun as we are likely to see in modern times”:

The State’s very justification for a challenged statute hinges explicitly on race—specifically its concern that African Americans, who had overwhelmingly voted for Democrats, had too much access to the franchise.

But really, the North Carolina legislature littered its voting law with almost comically obvious smoking guns. Black voters, the court explains, are also more likely to utilize same-day registration, preregistration, and out-of-precinct voting. The legislature knew this when it enacted SL 2013-381; it had “requested a racial breakdown” of different voting methods, and, as the Fourth Circuit notes, discovered:

The legislature’s racial data demonstrated that, as the district court found, “it is indisputable that African American voters disproportionately used [same-day registration] when it was available.” … [I]n-person assistance likely would disproportionately benefit African Americans. SL 2013-381 eliminated same-day registration.

And on and on it goes—each restriction, the court persuasively explains, was crafted to crack down on voting methods favored by black voters. These “seemingly irrational restrictions unrelated to the goal of combating fraud,” the Fourth Circuit writes, can only be explained by discriminatory intent. And the legislature’s highly suspect behavior in enacting SL 2013-381—rushing it through, on party lines, as soon as it was freed of federal oversight—raises serious constitutional red flags. “Indeed,” the court writes, “neither this legislature—nor, as far as we can tell, any other legislature in the Country—has ever done so much, so fast, to restrict access to the franchise.”

As a result of the law’s discriminatory intent and impact, the Fourth Circuit concludes, each of its central provisions must be invalidated under the Equal Protection Clause and the VRA.

It is a very hard rebuke to the lower court.  Now, I know Judge Schroeder, the lower court judge who found that there was no discrimination intended when North Carolina passed its new voter laws.  He is a thorough and competent judge, and certainly no racist.  But not being a Southerner, he just doesn’t see certain things which the older Southern gentlemen of the Fourth Circuit did see.  As the Fourth Circuit wrote, “the [lower] court seems to have missed the forest in carefully surveying the many trees.  This failure of perspective lef the court to ignore critical facts bearing on legislative intent, including the inextricable link between race and politics in North Carolina.”

This is a HUGE win for North Carolina (the people, not the current government) with national repercussions.

It will no doubt go to the U.S. Supreme Court, where, with a 4-4 split, it will probably be upheld.

The 83 page opinion is below:

Rape Survivor Jailed

Lovely:

A bipolar rape survivor was jailed for nearly a month in Houston after she broke down while testifying against her rapist. In jail, she was allegedly abused and mistaken as a sex offender. Now she’s suing the prosecutor who sent her to jail, a jail guard who allegedly hit her, and others.

The 25-year-old woman, known as Jane Doe, was the key witness in the trial of serial rapist Keith Hendricks, who received two life sentences for raping multiple women. In court last December, she broke down during questioning and ran from the courtroom, screaming that she’d never return.

She was hospitalized and then jailed because court officials feared she would not return to finish her testimony. Doe’s mom had been told her daughter would be treated in a mental health facility, but instead she was imprisoned for 28 days at Houston’s Harris County Jail, where she stayed in the general living quarters.

The woman’s lawyer, Sean Buckley, said a jail guard punched her in the face after she hit the guard (assault charges filed against her were later dropped) and that another inmate gave her a black eye. The complaint states an inmate “repeatedly slammed her head into the concrete floor” and she “was forced to drink from a spigot attached to a dirty metal toilet,”according to the Washington Post. Some jail staff mistakenly thought she was an offender from her jail record, which wrongly listed her charges as “Arrested for aggravated sexual assault,” according to local station KPRC’s investigation. After the woman testified against Hendricks again in January, she had to wait three more days in jail before she was released on January 14, in case she was asked to give more testimony.

Prosecutors had petitioned a judge for a “witness bond,” which by Texas state law allows a witness to be held without bail to make sure they arrive in court to testify. But a former Harris County prosecutor, a legal analyst, and other attorneys told local station KPRC they’d never heard of a witness bond being used to hold a rape victim.

Buckley filed the woman’s lawsuit against Harris County, the sheriff, the jail guard who hit her, and the prosecutor who asked her to be jailed. In a statement, District Attorney Devon Anderson supported the prosecutor’s decision, though as Jezebel noted, it seemed to suggest the woman’s family agreed to the witness bond while mistakenly thinking she would receive care in a proper facility. Anderson said:

Because the DA’s Office has been notified that a lawsuit is imminent, we cannot go into details about this case… However, witness bonds are a common tool used by prosecutors and defense attorneys when the lawyer has reason to believe that the witness will be unavailable or make him or herself unavailable for trial. A judge must approve a witness bond. In this case the judge and family agreed with the decision to obtain a witness bond.

KPRC’s legal analyst Brian Wice noted perhaps the most tragic result of this case: “At the end of the day she received less due process, less protection than the rapist did.”

This country, and particularly law enforcement and the courts, needs one long seminar on how to treat people who have suffered traumatic emotional injury, whether they be soldiers or rape victims.

Trump v. Ginsburg: The Rare Occasion Where Trump Is Right

Associate Supreme Court Justice Ruth Bader Ginsburg is no fan of Trump. She has launched criticisms of him in interviews with three news organizations.She told CNN Wednesday:

He is a faker. He has no consistency about him. He says whatever comes into his head at the moment. He really has an ego. … How has he gotten away with not turning over his tax returns? The press seems to be very gentle with him on that.

And earlier this week, Ginsburg told The New York Times:

I can’t imagine what this place would be—I can’t imagine what the country would be—with Donald Trump as our president. For the country, it could be four years. For the court, it could be — I don’t even want to contemplate that.

She even mused to the newspaper that “it’s time for us to move to New Zealand” if Trump were elected.

Last week, Ginsburg told The Associated Press, in another interview, that she didn’t “want to think about … [the] possibility,” of a Trump presidency, “but if it should be, then everything is up for grabs.”

Trump’s initial response also came to the Times:

I think it’s highly inappropriate that a United States Supreme Court judge gets involved in a political campaign, frankly. I think it’s a disgrace to the court and I think she should apologize to the court. I couldn’t believe it when I saw it.

Yup.  While I don’t think it is a “disgrace to the court”, nor is an apology necessary, it IS highly inappropriate.  It just isn’t done.  We all know that Supreme Court justices have political opinions — they are people, after all — but it damages the appearance of impartiality of the Court when they weigh in.

Ginsburg certainly knows this.  So why would she do it?

I think I know.

She’s not planning on staying with the Court.  She probably was going to resign at the end of the last term, but seeing as how the Senate was balking at filling the late Scalia’s seat, she probably didn’t want to make the Supreme Court have two vacancies during the election year (which would probably cause some people doubtful about Trump to vote for him anyway on that one issue alone).

So she’s speaking out.  Big deal, she’s thinking.  I’m getting out as soon as Hillary is elected.

That’s my theory.

And yes, while I agree with Trump (and the New York Times) that Ginsburg is doing something inappropriate, Trump is, as usual, taking it too far:

Oh God.  His complaint isn’t that she made a political statement, but that it was a DUMB one ABOUT HIM.  And then to question her mind?  Oy.  And so, Trump, who has a valid point for once, squanders it away by acting like a giant baby.

How’s That Open Carry Working Out For You?

Although it was a tragedy, the Dallas sniper shooting of 5 police officers was a reality-based experiment on the theory that a good guy with a gun beats a bad guy with a gun.  Not only did the bad guy with a gun kill five armed good guys, but the bad guy was killed with a robot using explosives (one of the first times that law enforcement used a drone/robot for purposes of catching someone in a domestic crime).

What’s more, the prevalence of guns, rather than making people safer, actually made things HARDER:

It is legal in Texas to openly carry rifles and has been for decades. People with rifles have been spotted at recent public protests across the state.

[Dallas Mayor] Rawlings said Dallas police Chief David Brown told him that people running through the shooting scene with rifles and body armor required officers to track them down and bring them to the police department. Whether that was time that could have been spent trying to find and stop the shooter is something police will have to comment on, Rawlings said.

He said Friday that about 20 people in “ammo gear and protective equipment and rifles slung over their shoulder” participated in the Black Lives Matter rally downtown on Thursday night.

“When the shooting started, at different angles, they started running,” he said. “We started catching.”

Then police interviewed them.

Rawlings said open carry brings confusion to a shooting scene.

“What I would do is look for the people with guns,” he said.

Max Geron, a Dallas police major, talked about the confusion during the shooting in a post on a law enforcement website.

“There was also the challenge of sorting out witnesses from potential suspects,” Geron said. “Texas is an open carry state, and there were a number of armed demonstrators taking part. There was confusion on the radio about the description of the suspects and whether or not one or more was in custody.”

Now listen to the stupidity of the counter argument:

But C.J. Grisham, president of Open Carry Texas, said police should be able to separate the good guys from the bad guys in such a scenario because “the bad guys are the ones shooting.”

“If you can’t identify a threat, you shouldn’t be wearing a uniform,” he said.

Grisham said some in law enforcement look at law-abiding gun owners as a threat.

“It’s not that difficult to tell the difference between a bad actor and a good actor,” he said. “The good guys are going to obey commands, the bad guys are not.”

Wait, wait.  Shots rings out.  And as you turn, you see a guy across the street RUNNING with a RIFLE.  He can’t hear your commands to stop.  And you didn’t actually see whether he fired those shots.

Apparently, CJ Grisham thinks that real life is like a movie, where the camera is on the shooter as he shoots.

It’s scary that these people are allowed to have opinions.

More and More, It Looks Like The Dallas Cop Killer Was A Nut

Dallas police now believe that Micah Johnson, who shot and killed 5 Dallas police following a Black Lives Matter march, was actually planning some sort of mass attack, but advanced his plans to take advantage of the BLM march. His house was full of bomb making equipment, far too much to have put together in recent days.  He had received “defensive” combat training in Dallas two years earlier.

And most troubling, writing on his wall in blood.

This man was a time bomb. It’s almost like he didn’t need a reason to go off.

Breaking: Officers Shot In Dallas Protest

CNN affiliate KTVT in Dallas is reporting that two police officers have been shot after a peaceful protest deaths of two black men. Chaotic live footage from the scene shows police and SWAT teams in a tense combat

Police in tactical gear carrying riots shields descended after about 20 shots in boomed loudly in quick succession, audio that was captured by eyewitness video and posted to Twitter.

MSNBC reporting that the suspect is cornered, three officers have been shot.

http://youtu.be/GHCte_oenFs

UPDATE: 4 officers shot, 1 had died. Negotiators are talking to shooter who is holed up somewhere.  

All this happened about a block from another famous shooting in Dallas.

UPDATE #2: Holy shit. Two snipers, ten officers shot, three of them dead

UPDATE #3: Four dead now. One suspect is in custody after a shootout. The news outlets have been showing a photo of a “person of interest” – a black man with a long rifle before the shooting (totally legal in Dallas).  Social media was able to find that guy in a video AS the shooting was happened, so he’s been cleared by social media even though CNN.and MSNBC are behind on that. Anyway, that person of interest has turned himself in and hopefully he will be let go soon.

Big manhunt for the second suspect.

UPDATE – NEXT MORNING: 12 officers shot, 2 civilians shot, 5 of those officers are dead.

Sniper killed when SWAT team detonated explosive device near him.  He has been identified as Micah X. Johnson, an Army veteran. During standoff, Johnson told police he was “upset by.Black Lives Matter” and “wanted to kill as many white people as possible, especially white cops”.  He also claimed to be acting alone.

Others have been taken into custody, but police are not saying anything about their involvement. They are not acting like other gunmen are at large.

Ironically, Dallas PD had been reactive to BLM movement with increased training, racially diverse policing, etc.  This seems more directed at cops on in general, not Dallas PD in particular.

Two Deadly Police Shootings In Two Days

Alton Sterling, a 37-year-old black man, was standing in the parking lot selling CDs as he had for years when two white cops arrived on Tuesday night. By Wednesday morning he was dead and protesters were in the city’s streets. Calls erupted from Congress and the NAACP for an independent investigation into the shooting, which the Justice Department announced within hours.

Abdullah Muflahi owned the Triple S Food Mart in Baton Rouge where all this happened.  He was a friend of Sterling and allowed him to sell CDs in front of the story.  Muflahi walked out the front door when he saw the officers talking to Sterling and said there was no “altercation,” as police claimed, until the cops tasered and tackled Sterling. That’s when Muflahi took out his phone and started recording. (Warning: Graphic video)

I was on Twitter last night reading about this, and the protests, when something came across the transom.

Another shooting of a black man by cops.  A traffic stop in Falcon Heights, Minnesota, near Minneapolis.  The victim’s name is Philando Castile.

The video begins after the shooting occurred and shows the man, slumped and bloodied, against the woman who was recording. Her young daughter sat in the back seat.  The video streamed live on a private Facebook account belonging to Lavish Reynolds, and the clip was passed rapidly among Twitter, Facebook and YouTube users, becoming significant news online before traditional outlets — even those in the Minneapolis area — caught up.

The woman, presumably Lavisjh Reynolds, began by calmly narrating what was happening as she trained the camera on Mr. Castile, whom she described as her boyfriend, and on at least one officer who was pointing a gun through the driver’s side window.

“Please, officer, don’t tell me that you just did this to him,” she said. “You shot four bullets into him, sir. He was just getting his license and registration, sir.”

Reynold’s daughter, who was in the back seat, appears several times in the video. Near the end of the 10-minute clip, as the two are sitting in the back of a police car, she comforts her mother, saying, “It’s O.K., Mommy. It’s O.K. I’m right here with you.”

The terror in the voice of the cop is palpable, while Lavish Reynolds (at least in the beginning) is calm and reasoned.  Castile dies in the video.

Reynolds can be heard throughout the video repeating that they were stopped for a broken tail light, that the officer requested Castile’s driver license, and that Castile was shot when he went to retrieve his license for the officer. She also states on the video that he worked for St. Paul public schools and did not have a criminal record. According to Castile’s mother, he was the cafeteria supervisor at a St. Paul Montessori school.

The Minnesota governor has asked for a federal investigation into the fatal shooting of Castile.

The Washington Post is tracking the number of people killed by police in the America. There were 990 in 2015. There were 506 showing for 2016 now.  There is something terribly wrong.

And because it is a presidential campaign year, expect this: Hillary will talk about it, and Trump will use it as an excuse to pat policemen on the back.

But I suspect nothing much will happen.

Let’s Face It: The Way We Classify Documents Is F*cked

Another reason it is hard to get all bent out of shape about the Clinton email “scandal” came to me moments ago in the form of a Tweet I read:

Yup.

We’ve got a system where things are overclassified, inconsistently classified, and incorrectly marked.

Look, it’s not like things got out there that are super super really secret.

Why I Don’t Have Much To Say About The Hillary Email Scandal

FBI Director James Comey gave a press conference yesterday morning that sent shock waves through the political establishment.

The bottom line:

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Shock waves indeed, but when I looked around at the political landscape when it was over, I noticed that the pieces hadn’t moved.

Hillary wasn’t indicted.  That wasn’t news.

She acted stupidly, carelessly.  That wasn’t news either.

That the right wing would go apoplectic — not terrible surprising.

I guess I would be more moved if the right wing hadn’t tried to get Hillary in jail since 1991.  Kevin Drum is right on the money when he writes:

Consider two “scandals.” The first is Benghazi. Hillary Clinton did nothing wrong. It was, essentially, a complete nothingburger. The second was Emailgate. In that one, Hillary unquestionably did things that were foolish at best and possibly criminal at worst. It was a genuine story.

But Republicans treated them both exactly the same. It didn’t matter whether Hillary actually did something wrong or not. They went after her with their usual Whitewater/Travelgate/Vince Foster level of fury, convinced that if only they yelled loudly enough the country would finally see her unmasked as the villain she really is. And they’re still doing it. James Comey has spoken, and no one reasonable thinks he’s on the take for the Clintons. But conservatives are almost unanimous in their shrieking that she is too guilty and ought to be put behind bars. Paul Ryan is now promising a probe of the probe, and idiotically calling for the director of National Intelligence to “block” Hillary’s access to classified information while she’s running for president. The only surprise here is that he isn’t demanding that Hillary’s access to classified information be blocked even if she wins.

After eight years of Bill Clinton’s presidency and now four years of Hillary Clinton’s post-cabinet career, Republicans have been crying wolf about Hillary for more than a decade. It’s pretty obvious that they’re going to continue, and that they really don’t care whether she’s actually done anything wrong. I have a feeling the public may finally be getting tired of their games.

I think this is true.

And watching Trump last night, you could see a prime example of a wingnut overplaying the hand.  Trump insisted that Comey — Republicans James Comey — was crooked and that Loretta Lynch was bribed.

And that’s when he took a gift and blew it.

How badly will this hurt Hillary?  It should hurt her badly politically.  Not fatally, but badly, if only in the short term.  I think, however, it won’t.

UPDATE: Another predictable thing — Sarah Palin word salad on Facebook:

Ironic, tragic, but not unexpected – amidst America’s Independence Day celebrations the Ruling Class put another boot on our neck to snuff liberty’s life out of We the People.  It’s a farce that “no one is above the law” and my heart goes out to all who’ve been unjustly accused and destroyed over much lesser crimes than Hillary’s…

***

Today’s FBI forgiveness of tyrants’ illegal acts illustrate purpose in why I insist Americans rise up and tear down this tyrannical system that is destroying America from within. Truly, you’re either with us or you’re against us…

***

Message to all the “Republican” elites throwing in for Hillary, boasting they’ll stay home instead of vote because their particular weakened good ol’ boy is not the GOP nominee (the R.A.T.s suffering chapped ass because their power and purse are threatened by the grassroots movement to destroy their failed politics-as-usual), Hillary thanks you. She knows she can’t win without you.

SCOTUS Strikes Down Oppressive Abortion Restrictions

This morning, the Supreme Court struck down parts of a restrictive Texas law that could have reduced the number of abortion clinics in the state to about 10 from what was once a high of roughly 40.

The 5-to-3 decision was the court’s most sweeping statement on abortion rights since Planned Parenthood v. Casey in 1992. It applied a skeptical and exacting version of that decision’s “undue burden” standard to find that the restrictions in Texas went too far.

The decision on Monday means that similar restrictions in other states are most likely also unconstitutional, and it imperils many other kinds of restrictions on abortion.

Justice Stephen G. Breyer wrote the majority opinion, joined by Justices Anthony M. Kennedy, Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan. Chief Justice John G. Roberts Jr. and Justices Clarence Thomas and Samuel A. Alito Jr. dissented.

The decision concerned two parts of a Texas law that imposed strict requirements on abortion providers. It was passed by the Republican-dominated Texas Legislature and signed into law in July 2013 by Rick Perry, the governor at the time.

One part of the law requires all clinics in the state to meet the standards for ambulatory surgical centers, including regulations concerning buildings, equipment and staffing. The other requires doctors performing abortions to have admitting privileges at a nearby hospital.

“We conclude,” Justice Breyer wrote, “that neither of these provisions offers medical benefits sufficient to justify the burdens upon access that each imposes. Each places a substantial obstacle in the path of women seeking a previability abortion, each constitutes an undue burden on abortion access, and each violates the federal Constitution.”

I’m not surprised by the outcome, nor am I surprised by swing justice Kennedy joining the “liberals” on the court.  Frankly, the Texas restrictions were NOT intended to support women’s health.  If you saw who proposed those restrictions (longtime Texas anti-abortion legislators) and listened to their rhetoric, “health of women” was a sham rationale.  Their real objective was to make abortion clinics so regulated that they could not afford to make the required changes, and eventually close down.  In fact, to date, twenty abortion clinics have closed down under those regulations.

So, yes, a victory, and it would have been a victory even if Scalia was alive and on the court.  But it does underscore the importance of the election and who gets to pick the next justices.

Democratic House Sit-In Enters Day Two

Late last night, Ryan managed to adjourn the House until after the July 4th break:

After a chaotic, daylong occupation of the House floor, Republican leaders moved in the middle of the night to cut off House Democrats’ gun control “sit-in” by adjourning the House through the July 4 — without a vote on gun control.

Speaker Paul Ryan (R-Wis.) sought to to quell the Democratic demonstration by having lawmakers vote at 2:30 a.m. on several bills they had to pass this week, including one to combat the Zika virus. After that, Republican leaders sent lawmakers home until July 5, starting their already-scheduled recess a few days earlier than planned.

All of this is ostensibly to pass a “no fly, no buy” bill — i.e., if you are on the “no fly” or any other government terrorist watch list, you shouldn’t be able to buy a gun.  This is the legislation offered by Senator Feinstein and now Representative Lowey.

And to be honest, there’s legitimate worry that these lists are not very good, that they deny people due process, and that they have a disparate impact when it is used to deny people rights, like the right to board an airplane or (as now proposed) to purchase a firearm. These are some of the reasons why the ACLU opposes the Feinstein/Lowey legislation. Republican opponents raise some of the same issues.

The question, then, is whether the sit-in the Democrats waged yesterday and the fuss they made in the Senate before that are in the service of bad legislation that would ratify a badly flawed system that is already being misused for the no-fly system. Would it grant even more power to the FBI which they could then expand or misuse?

If you restrict yourself to seeing this kerfuffle as about the merits of this proposed legislation, then the answer to those questions is surely ‘yes.’

But this is not a fully developed appreciation of what is going on.

To start with, the Democrats are responding to yet another massacre in which dozens of people were killed or injured in mere minutes by the use of a power semi-automatic rifle. In the 2012 Sandy Hook massacre, 26 people were gunned down in approximately five minutes. In the 2012 Aurora massacre, seventy people were shot. In Aurora, the police arrived within 90 seconds of receiving a call. In Sandy Hook, the first police car was there four minutes after they were notified of a shooting situation. Congress has had no answer for how we might prevent or reduce the frequency and lethality of these types of attacks.

What the Democrats are trying to do is break grip the National Rifle Association has on Congress. The heart of that effort has been to leverage overwhelming public support for expanded background checks, but that legislation has gone nowhere. The effort to impose a “no-fly, no-buy” provision will likewise go nowhere in this Republican-controlled Congress, but it also enjoys overwhelming public support. By trying to force votes on these two issues, the Democrats are highlighting the Republicans refusal to address the problem of the ready availability of extraordinarily lethal firearms. Whether the Republicans cast votes or refuse to allow them (as they have done by recessing until after July 4th), this puts them badly on the wrong side of public opinion and heightens their vulnerability to electoral defeat.

It’s not a cynical ploy to gain power. It’s a recognition that all avenues are blocked except getting more power. So, the way this gambit should be judged is on whether it works politically, and not so much on whether the watch list is a flawed mechanism for restricting the rights of anyone for any purpose.

So, if nothing happens, the watch list will continue to have flaws and it will continue to expand. But, if the watch list were to actually be used to restrict gun ownership, the Republicans would suddenly care about those flaws and want to do something to make sure that folks have due process, the right to appeal, and that conservatives aren’t disproportionately impacted. Conservatives tend not to have empathy until they’re personally impacted. When Arlen Specter got sick, he became a champion of the National Institute of Health, and when Rob Portman discovered he had a gay son, he suddenly saw the light on gay marriage. If Republicans think the watch list only inconveniences Muslims from Dearborn, Michigan, they’ll never have any interest in fixing its flaws. But if it impacts one of their assault-rifle loving constituents who can’t figure out how to get taken off this list? That will interest them.

UPDATE (1:09 pm) — Aaaaand it’s over.

House Democrats are now hugging, shaking hands, and taking photos on the floor. The sit-in is now over, and they plan to address supporters outside the Capitol in the next few minutes.

Whether it was a “win” or not, everyone will have a different take.  No vote, of course, but that was pie-in-the-sky.  It raised the profile of the gun control issue, it heightened notice that the Republicans and the GOP leadership are controlled by the NRA.  That’s all good.

Breaking: Scotus Decisions

Three big cases remain outstanding on the SCOTUS docket: one on abortion, one on immigration, and one on affirmative action.  The last one was just handed down moments ago.

FISHER v UNIVERSITY OF TEXAS

Facts of the case

In 1997, the Texas legislature enacted a law requiring the University of Texas to admit all high school seniors who ranked in the top ten percent of their high school classes. After finding differences between the racial and ethnic makeup of the university’s undergraduate population and the state’s population, the University of Texas decided to modify its race-neutral admissions policy. The new policy continued to admit all in-state students who graduated in the top ten percent of their high school classes. For the remainder of the in-state freshman class the university would consider race as a factor in admission.

Abigail N. Fisher, a Caucasian female, applied for undergraduate admission to the University of Texas in 2008. Fisher was not in the top ten percent of her class, so she competed for admission with other non-top ten percent in-state applicants. The University of Texas denied Fisher’s application.

Fisher filed suit against the university and other related defendants, claiming that the University of Texas’ use of race as a consideration in admission decisions was in violation of the equal protection clause of the Fourteenth Amendment. The university argued that its use of race was a narrowly tailored means of pursuing greater diversity. The district court decided in favor of the University of Texas, and the United States Court of Appeals for the Fifth Circuit affirmed the district court’s decision. Fisher appealed the appellate court’s decision.

Question

Does the Equal Protection Clause of the Fourteenth Amendment permit the consideration of race in undergraduate admissions decisions?

SCOTUS Decision

Affirmed. 4-3.

This is decidedly a compromise; Kennedy’s opinion says that UT must continue to reassess its need for any kind of race-conscious affirmative action, and that it is justified only by a robust record showing that other means of addressing diversity concerns have failed. But there is also a pretty meaningful shift away here from the trajectory of Fisher I. That case faulted the lower court for giving too much deference to the judgments of the university; this decision affirmatively states that “Considerable deference is owed to a
university in defining those intangible characteristics, like student body diversity, that are central to its identity and educational mission.”

From end of majority opinion: “The Court’s affirmance of the University’s admissions policy today does not necessarily mean the University may rely on that same policy without refinement. It is the University’s ongoing obligation to engage in constant deliberation and continued reflection regarding its admission policies.”

This is, I think, the first time Kennedy was on the pro-affirmative action side.

Strong dissent from Alito.which begins :””Something strange has happened since our prior deci­sion in this case…”.  50 page dissent is being read by Alito.

SCOTUS had the Fisher case in 2013. One suspects Roberts and Alito now wish they hadn’t punted it back to the 5th Circuit.  When Fisher I came through, this happened:

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The peanut gallery:

UNITED STATES v TEXAS

Facts of the case

In June 2012, the Department of Homeland Security (DHS) implemented the Deferred Action for Childhood Arrivals (DACA) program, along with criteria for determining when prosecutors can choose not to enforce immigration laws under DACA. People who qualify for DACA may apply for work authorization. In 2014, DHS established a similar process for parents of citizens and lawful permanent residents as well as expanding DACA by making more people eligible. The new program was known as the Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) program.

Texas and other states sued to prevent the implementation of DAPA and argued that it violated the Administrative Procedure Act because it had not gone through the notice-and-comment process, and because it was arbitrary and capricious. The states also argued that DAPA violated the Take Care Clause of the Constitution, which clarifies the President’s power. The district court held that the states had standing to file the suit and temporarily enjoined the implementation of DAPA because the states had established a substantial likelihood of success on the notice-and-comment claim. The U.S. Court of Appeals for the Fifth Circuit affirmed and held that the states had standing as well as a substantial likelihood of success on their substantive and procedural claims.

Question

  1. Do states that provide subsidies to persons who are granted deferred action have standing to sue because the new guidelines will lead to more persons being eligible for deferred action?
  2. Is the Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) program arbitrary and capricious?
  3. Did DAPA violate the Administrative Procedure Act by failing to go through the notice-and-comment procedure?
  4. Does DAPA violate the Take Care Clause of the Constitution?

SCOTUS Decision

The per curium opinion in its entirety reads “The judgement is affirmed by an equally divided court”

This means that Texas has standing and the case can go forward.  When decisions are tied, this means that it has precedent in that circuit only and not nationwide.

While some outlets are reporting that the court’s action essentially kills the programs, it’s more accurate to say that it blocks them presently while their future remains uncertain. (It also has no effect on Obama’s original deferred action program for DREAMers announced in 2012.)

Since the split left in place a nationwide injunction that was unilaterally issued by a federal judge in the Fifth Circuit on Obama’s immigration programs—Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) and Deferred Action for Childhood Arrivals (DACA)—that injunction will almost certainly invite legal challenges in other circuits.

It is a loss, to be sure, but not a permanent one.

And although not one of the big three, the Dollar General case caught my eye.

DOLLAR GENERAL v MISSISSIPPI BAND OF CHOCTAW INDIANS

Samantha Bee can give the background:

Facts of the case

Dollar General Corporation (Dollar General) operates a store on land held in trust for the Mississippi Band of Choctaw Indians (Tribe). The store operates pursuant to a lease and business license agreement with the Tribe. In the spring of 2003, John Doe, a 13-year-old member of the Tribe alleged that he was sexually molested by the store manager, Dale Townsend, while he was working at the store as part of an internship program that the Tribe runs and in which the Townsend agreed to participate.

In 2005, Doe sued Townsend and Dollar General in tribal court. Both defendants moved to dismiss the case for lack of subject matter jurisdiction, and the tribal court denied the motions. The Choctaw Supreme Court upheld the denial of the motions by finding that the U.S. Supreme Court’s decision in Montana v. United States, which allowed a tribe to regulate the activities of nonmembers who enter into a consensual arrangement with the tribe, applied in this case. The defendants then sued the Tribe in federal district court and sought injunctions to stop the suit in tribal court. The district court granted the injunction for Townsend but not for Dollar General because the company had failed to carry its burden to show that the Montana decision did not apply in this case. The U.S. Court of Appeals for the Fifth Circuit affirmed.

Question

Does a tribal court have jurisdiction to adjudicate civil tort claims against nonmembers?

SCOTUS Decision

The per curium opinion in its entirety reads “The judgement is affirmed by an equally divided court”

Meaning the child molester cannot be tried in the Indian court, but Dollar General can.

Realistically, Here Is What Would Happen

Terrorist — we’ll call him Shooter A — walks into a crowded room (say, a nightclub) and starts opening fire.  Immediately, some people fall, stricken by Shooter A.  Others instinctively dive under the tables or behind the bar or run out of the room to the bathrooms.

Brave Shooter B, a patron, reacts quickly.  In half a second, he draws his loaded and concealed pistol, and fires at Shooter A.  He misses but one bullet ricochets and hits a bystander.

As that is going on, brave Shooter C, another patron, is just coming out of the bathroom and hears Shooter A’s gunfire.  She takes her loaded and concealed pistol and runs to the main room, where she sees Shooter B fire with his weapon drawn and people are falling down and/or diving under tables.  She shoots at Shooter B.

Brave Shooter D has dived under the table at the first sound of bullets so it takes him two or three seconds to get his loaded and concealed pistol out from his leg strap, but when he does he see Shooter C and Shooter A and he figures it is more than one person so he starts firing on them both.

Brave Shooter E, the bartender, comes up from behind the bar and see the shooter closest to him shooting at people at so he starts shooting at that shooter but then some other shooter starts shooting at HIM.

Everything I have described happens in a span of 3-4 seconds from the moment of the first shot.  As more “good guys with guns” join in, it becomes unclear who the “good guys” and “bad guys” are.

Oh, did I mention that it is a nightclub where the lights are low and the music is thumping and all the shooters have had a little to drink?

The point: The notion that more guns will prevent mass shootings is just plain dumb, and suggested by people who watch too many movies.  Yes, it might work in certain situations (especially if everybody had advance notice that there was a shooter and a description of what he/she looked like), but in the real world, things are often not that convenient.

Oh, and this…

armed

Breaking: Literally “On The House Floor”

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Dozens of House Democrats are staging a “sit-in” on the House floor until they are allowed a vote on a so-called “no fly, no buy” gun control bill. It is the most dramatic action by House Democrats on gun control since the Orlando shooting on June 12 that left 49 dead and 53 wounded.

Two weeks ago, in the Senate, there was a talking filibuster by Senator Murphy of Connecticut.  That ended when Senate Republicans agreed to allow a vote on various gun control proposals.  None of those proposals passed.

UPDATE:  You won’t see this on TV…

UPDATE #2:  This is simply amazing

And Elizabeth Warren is joining them

Meanwhile, the rep from NC white-splains to John Lewis what is a “sit-in”:

The Four Bills Up For Debate And Vote In The Senate

Thanks to Senator Murphy’s 15-hour talk-a-thon on the Senate floor last week, Senate Republicans are willing to allow votes on certain gun control proposals. But don’t expect success — in part because 60 votes are needed to break a threatened Republican filibuster.

Nevertheless, here are the four proposals – all submitted as amendments to a Justice Department spending bill……..

The Democratic proposals:

  • Brought by Dianne Feinstein, D-Calif., it would give the Justice Department the power to stop anyone from purchasing a gun if that person has been on the federal terrorist watch lists sometime in the past five years. This measure would also make it easier for the government to halt a gun purchase, based on “reasonable belief” as opposed to “probable cause” that the individual will use the firearm to commit terrorism. The White House and DOJ backs this measure.
  • An amendment by Chris Murphy, D-Conn., would close the “gun show loophole” by requiring every gun purchaser to undergo a background check and to expand the background check database. It would also extend background checks to Internet sales.

The GOP proposals:

  • This one from John Cornyn, R-Texas, would require that law enforcement be alerted when anyone on the terrorist watch list attempts to buy a weapon from a licensed dealer. If the buyer has been investigated for terrorism within the past five years, the attorney general could block a sale for up to three days while a court reviews the sale. The government would have to show probable cause that the person is a known or suspected terrorist.
  • An amendment by Chuck Grassley, R-Iowa, would clarify what it means to be found mentally deficient, and giving people suspected of serious mental illness a process to challenge that determination.  (Democrats argue that the “clarification” would actually permit more mentally deficient people to buy guns)

Again, none are expected to pass.

Supreme Court Cases We’re Watching

It’s getting close to the end of the Supreme Court term, and this is when controversial cases start coming out.

Although a few cases were handed down today, they weren’t the ones on my particular radar.  The ones of national import, I believe, are:

Fisher v. University of Texas at Austin (argued December 9, 2015).  This case, a challenge to the university’s consideration of race in its undergraduate admissions process, is on its second trip to the Court.  In 2013, the Court sent the case back to the lower courts for a more critical look at whether the university really needed to consider race to achieve a diverse student body.  After the Fifth Circuit once again upheld the policy, the Court agreed to weigh in.  Unlike some of the Court’s other high-profile cases this Term, no one expects the Court to deadlock:  Justice Elena Kagan is not participating, which in the wake of Justice Antonin Scalia’s death leaves the Court with just seven Justices to decide the case.

Whole Woman’s Health v. Hellerstedt (argued March 2, 2016).  This is a challenge to the constitutionality of two provisions of a Texas law regulating abortion in that state.  One provision requires doctors who perform abortions to have privileges to admit patients to a local hospital; the other requires abortion clinics to have facilities that are comparable to outpatient surgical centers.  Texas contends that these new laws are constitutional because they were intended to protect women’s health, while the challengers argue that the law was actually intended to close most clinics and therefore limit women’s access to abortions.

United States v. Texas (argued April 18, 2016).  This case is a challenge to an Obama administration policy, announced in November 2014, that would allow some undocumented immigrants to apply to stay in the country and work legally for three years.  Before the policy could go into effect, Texas and a large group of other states went to court to block its implementation, arguing that the administration lacks the authority to issue a policy like this.  But before the Supreme Court can weigh in on that question, it will also have to agree that the states have the legal right, known as “standing,” to challenge the policy at all; the lower courts ruled that they did, because at least Texas would incur additional costs from the undocumented immigrants who would become eligible for driver’s licenses if the policy goes into effect.

So…. basically, affirmative action, abortion, and immigration.  Hot topics in an election year.

None of that came down today.  In fact, the biggest news out of the Supreme Court this morning may be a case that they refused to take up:

The Supreme Court on Monday refused to hear a Second Amendment challenge to a Connecticut law banning many semiautomatic rifles. The law, enacted in 2013 in the wake of the mass shooting at Sandy Hook Elementary School in Newtown, Conn., made it a crime to sell or possess the firearms, which critics call assault weapons.

The decision not to hear the case, not long after the mass shooting in Orlando, Fla., does not set a Supreme Court precedent. But it is part of a trend in which the justices have given at least tacit approval to broad gun-control laws in states and localities that choose to enact them.

The case, Shew v. Malloy, No. 15-1030, was brought by four individuals, a business and two advocacy groups. They said the ban was irrational, ineffective and unconstitutional.

“Connecticut dubs a semiautomatic firearm” with one of several common features “an ‘assault weapon,’ but that is nothing more than an argument advanced by a political slogan in the guise of a definition,” they told the Supreme Court in their petition seeking review.

Last October, the United States Court of Appeals for the Second Circuit, in New York, upheld the ban almost entirely. It acknowledged that the affected weapons were in common use and assumed their possession was protected by the Second Amendment. But the appeals court ruled that the Connecticut law passed constitutional muster.

The law was “specifically targeted to prevent mass shootings like that in Newtown, in which the shooter used a semiautomatic assault weapon,” Judge José A. Cabranes wrote for the court.

“Plaintiffs complain that mass shootings are ‘particularly rare events’ and thus, even if successful, the legislation will have a ‘minimal impact’ on most violent crime.

“That may be so,” Judge Cabranes continued. “But gun‐control legislation ‘need not strike at all evils at the same time’ to be constitutional.”

It has been eight years since the Supreme Court recognized an individual right to keep guns at home for self-defense in District of Columbia v. Heller, which struck down parts of an exceptionally strict local law. Since then, the justices have said almost nothing about the scope of that right.

So….a victory for gun control.