Courts/Law

PA State Legislature Gets Ballsy

Think Progress:

In an audacious move by a political leader who could potentially be held in contempt of court, Pennsylvania Senate President pro tempore Joseph Scarnati (R) informed the state supreme court on Wednesday that he will openly defy one of the court’s recent orders in a gerrymandering case.

On January 22, the state supreme court struck down the state’s gerrymandered congressional maps — maps which enabled the GOP to win 13 of the state’s 18 congressional districts even in years when Democrats won the statewide popular vote. That order explained that the state’s maps must be “composed of compact and contiguous territory” and must not “divide any county, city, incorporated town, borough, township, or ward, except where necessary to ensure equality of population.” It also gave the legislature until February 9 to draw new maps, and the governor until February 15 to approve the maps and submit them to the court for review. 

If either deadline is not met, “this Court shall proceed expeditiously to adopt a plan based on the evidentiary record developed in the Commonwealth Court.”

Four days after its initial order, on January 26, the court issued a subsequent order requiring the legislature to turn over certain data — including geolocation files “that contain the current boundaries of all Pennsylvania municipalities and precincts” and various reports analyzing how well the legislature’s proposed new maps comply with the court’s January 22 order.

In a letter from his legal counsel, Scarnati explicitly refuses to comply with the second order. Though the letter claims that “the General Assembly is currently advancing bills aimed at creating an alternative map,” the letter also states that “Senator Scarnati will not be turning over any data identified in the Court’s Orders.”

Scarnati’s stated reason for this defiance is his belief that the court’s January 22 order “violates the U.S. Constitution’s Elections Clause.” Last week, Scarnati sought a stay of the January 22 order from the Supreme Court of the United States, claiming that only the state legislature and not the state courts are constitutionally allowed to weigh in on questions of gerrymandering. The U.S. Supreme Court has not yet ruled on this stay request, which means that both the January 22 order and the January 26 order remain binding upon Scarnati. 

As ThinkProgress previously explained, Scarnati’s request for a stay also conflicts with the U.S. Supreme Court’s 2015 decision in Arizona State Legislature v. Arizona Independent Redistrict Commission. It is also difficult to square with the Court’s landmark 1803 decision in Marbury v. Madison, which held that “it is emphatically the province and duty of the judicial department to say what the law is.”

There is only one word for this: contempt.

Three-Judge Panel Strikes Down NC Districts As Political Gerrymandering

This is a huge decision not only locally, but nationally.

A federal court yesterday ruled that Republicans in North Carolina unconstitutionally gerrymandered congressional districts in 2016 to ensure Republican “domination of the state’s congressional delegation.”

The three-judge panel struck down the map and ordered the state’s General Assembly to come up with a substitute by Jan. 24.

The decision was the first striking down of a congressional map, as opposed to a state legislative map, on the grounds that it was rigged in favor of a particular political party. Redistricting has historically been political and partisan to one degree or another.

While courts have invalidated redistricting plans, including ones in North Carolina, as racially discriminatory, judicial objection to gerrymandering for partisan gain is relatively new territory, with legal standards unsettled by the U.S. Supreme Court. Indeed, the court has never struck down a redistricting plan on the basis of partisan gerrymandering until yesterday.

If this opinion survives appeal, and becomes federal law, it could change the landscape of elections nation-wide.

Manafort Sues Mueller

This day continues to be bizarre.

Manafort is suing the Department of Justice, and names Rosenstein and Mueller as defendants, claiming that Mueller acted outside his authority by indicting him. This is an extremely unusual move. If an indictment can be challenged legally, typically the defendant files a motion to dismiss the indictment as part of the criminal case. It’s hard to see why Manafort chose to file this civil lawsuit instead of filing a motion in the criminal case. My initial reaction is that he wants to gain additional media exposure without putting this in front of the judge who would ultimately sentence him if convicted. This suit has almost no chance of success. Even if it succeeded, another federal prosecutor could indict Manafort for the same crimes, so it’s a pointless suit. He’s counting on the public (or conservative allies) to take this publicity stunt seriously.

The crux of Manafort’s argument against Mueller is that the Justice Department regulations governing appointment of a special counsel require the attorney general (or, in this case, Acting Attorney General Rod Rosenstein) to provide the special counsel “with a specific factual statement of the matter to be investigated.” Manafort claims that the specific factual statement in Rosenstein’s order is not broad enough to capture Manafort’s business dealings in Ukraine, and that a broadly worded provision of that order exceeds Rosenstein’s authority.

A glaring problem with this argument is that, even if Manafort is right, it is far from clear that he is allowed to bring this challenge. The regulations Manafort relies on explicitly state that they “are not intended to, do not, and may not be relied upon to create any rights, substantive or procedural, enforceable at law or equity, by any person or entity, in any matter, civil, criminal, or administrative.” So Manafort is claiming a right that the regulations explicitly deny him.

Even if a court ignores this limitation, moreover, Manafort’s argument relies on a flimsy factual claim. Rosenstein’s order appointing Mueller states that Mueller may investigate “any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump.” But Manafort was indicted on charges arising out of his dealings with the Ukrainian government, not the Russians. Such an indictment, Manafort’s lawyers claim, exceeds Mueller’s authority.

It’s a dubious argument because Manafort wasn’t just working for Ukrainian politicians and a Ukrainian political party. He was working for Ukraine’s pro-Russia party. That alone may be enough to establish a “link” between Manafort and the Russian government.

But let’s assume for the sake of argument that it does not, and that Mueller actually has exceeded his authority. What then?

Here’s what the Justice Department’s regulations have to say about special counsels who wish to investigate matters outside of their originally granted authority:

If in the course of his or her investigation the Special Counsel concludes that additional jurisdiction beyond that specified in his or her original jurisdiction is necessary in order to fully investigate and resolve the matters assigned, or to investigate new matters that come to light in the course of his or her investigation, he or she shall consult with the Attorney General, who will determine whether to include the additional matters within the Special Counsel’s jurisdiction or assign them elsewhere.

So even if Mueller’s investigation into Manafort did exceed his original authority, Mueller’s only obligation was to “consult” with Rosenstein about his decision to expand the investigation. At this point, Rosenstein would either expand Mueller’s authority or assign the new matters to another prosecutor.

So even if Manafort’s lawsuit prevails, the most that the former Trump campaign official can reasonably hope for is that a court may order Mueller to have a conversation with Rosenstein — a conversation, by the way, that may have already happened.

The bottom line, in other words, is that Manafort’s tactic is unlikely to succeed. He’s claiming a right he doesn’t have, in a courtroom he shouldn’t be in, based on facts that probably don’t exist — and, even if Manafort’s lawyers are right about everything, Mueller and Rosenstein can cure the alleged problems Manafort raises with a phone call or a few emails.

The Scandal That Is Not

Benjamin Witte writes about the story that is the subject of Fox almost every day — that an FBI agent was removed from the Mueller team because he had exchanged private emails with another FBI agent — his girlfriend, that were gloriously anti-Trump. The right wing news and establishment think this is a scandal, but of course, this means nothing. Being an FBI agent does not mean you have to stop having opinions and views. But congressional Republicans, who grilled  Deputy Attorney General Rod Rosenstein yesterday about it, are trying to make it a meal.  Witte writes:

I have not watched all of Deputy Attorney General Rod Rosenstein’s testimony before the House Judiciary Committee yesterday. But I watched three hours of it, and that was quite enough to convey the disturbing and dangerous nature of the current moment.

It was enough to highlight the apparent breadth of the congressional Republican effort to delegitimize the Robert Mueller investigation. The attacks on Mueller and his staff and allegations of supposed conflicts of interest were not the province of a fringe but a matter of an apparent consensus among House Republicans, at least on the famously partisan judiciary committee.

It was enough to loose upon the world an almost hysterical attack on an FBI agent and an FBI attorney in the presence of little evidence that either has done anything wrong—as opposed to merely ill-advised and unfortunate—and in the midst of an ongoing inspector general investigation that has not yet reached any conclusions.

It was enough to lay bare the absurdity of Republican demands for the appointment of a special counsel to investigate a series of matters about which there is not even the barest allegation of criminal conduct—let alone a predicate for an actual investigation.

It was enough to bring to the surface the bizarre fixation in the Republican caucus on conspiracy theories involving Fusion GPS, the so-called Steele Dossier, FISA surveillance, and the Mueller investigation.

And it was enough to make clear, yet again, that Rod Rosenstein is a man out of his depth and to make one sympathize for him at the same time.

My enthusiasm for Rosenstein these days is altogether under control. And his behavior in this episode, in particular, has hardly done him credit. The release of private correspondence between two Justice Department employees whose correspondence is the subject of an active inspector general investigation is not just wrong. It is cruel. It is not the practice of the Justice Department to turn over to Congress—let alone to give to reporters—active investigative material related to the private communications of its own employees. Justice Department and FBI employees have the right to their political opinions. To the extent their private political expressions for some reason make it impossible for them to work on a certain matter, they certainly have the right to have that determined without having their careers ruined and their names dragged publicly through the mud by politicians who know nothing about the circumstances in question.

I don’t know whether agent Peter Strzok and attorney Lisa Page did anything improper, or merely engaged in ill-advised and foolish communications that did not impact their work. I have no quarrel with Mueller for removing Strzok from the investigation, whether for substantive or appearance reasons. But I do know this: these questions deserve to be adjudicated within the confines of a serious internal investigation, not a partisan circus.

Rosenstein here has, at a minimum, contributed to that circus—at the expense of his own employees. In throwing a career FBI agent and career FBI lawyer to the wolves by authorizing the release to the public of their private text messages—without any finding that they had done anything wrong—he once again sent a message to his workforce that he is not the sort of man with whom you want to share your foxhole. The DOJ and FBI workforces will not forget that. Nor should they.

And that said, I found it impossible to watch yesterday’s hearing without a certain amount of sympathy for Rosenstein’s predicament. Whatever one says about his conduct, he is squeezed between the jaggiest of rocks and the hardest of hard places here. He is evidently trying to protect the Mueller investigation, and to his credit, he yesterday stood up strongly for the investigation’s integrity and for Mueller’s personal integrity. In doing so, he is exposing himself to the risk of being fired at any moment—and he is acting with an awareness that he may need to resign at any moment when ordered to do something inconsistent with his commitments. He is working for a man who is behaving completely unreasonably, even in public; one can only imagine how much worse is Trump’s behavior in private. What’s more, the congressional Republicans who should be protecting the integrity of the work of Rosenstein and his department—particularly in the House but also increasingly in the Senate—are not only failing to do so, they are braying for actions inimical to the very idea of independent law enforcement. They are doing it about someone, Mueller, with whom they have long experience and about whom they know their essential claims to be false. To make matters worse, Rosenstein is quite constrained in terms of what he can say, so he has to sit and answer in platitudes attacks that require an energetic defense.

Yes, it would be desirable if the campaign contributions of Mueller’s staff reflected more political diversity than they do. And yes, it would be a good thing if the private political expressions of those who later went to work for him happened not to reflect the widely-held views of members of the national security establishment about the man who then became President—or that they had refrained from expressing them.

But it would be highly inappropriate for Mueller to recruit on the basis of political orientation. And whatever the staff-level composition of the investigation may be, the law enforcement leadership is hardly a Democratic bastion committed to going after President Trump. Mueller himself is as apolitical a public servant as this country has known in a long time—and to the extent he has a partisan political identification, it is as a Republican. Rosenstein and FBI Director Christopher Wray are both appointees of Trump himself. To whatever extent Strzok and Page engaged in any impropriety, that impropriety is known because the Justice Department inspector general discovered it, and when Mueller became aware of it, he removed Strzok from his investigation.

Most importantly, there is no serious suggestion that any step taken by Mueller’s shop is unjustified. The Mueller investigation will ultimately be measured by its work product, not by the text messages or campaign contributions of its staffers from before the investigation even existed. That work product so far is two guilty pleas for lying to the FBI over contacts with the Russians by the Trump campaign and transition—and one completely shocking indictment involving allegations of massive money-laundering by the Trump campaign’s chairman.

At yesterday’s hearing, Republican Rep. Jim Jordan announced about the Mueller probe that “The public trust in this whole thing is gone.” This is actually wrong.

In , fully 61 percent of respondents expressed at least some confidence in the Mueller investigation.  expressed at least some confidence in the FBI in connection with the Russia probe. And , 74 percent, expressed confidence in the FBI generally.

The trouble is that if enough members of Congress tenaciously attack the institution over a long period of time, Jordan’s words could acquire the quality of self-fulfilling prophecy. It is an enormously damaging undertaking for members of Congress to self-consciously erode public confidence in federal law enforcement.

Even if that doesn’t happen, public confidence in Mueller may not be enough when the President’s political base—in conservative media, in Congress, and the broader political ecosystem—is rallying behind the proposition that the Justice Department, the special counsel, and the FBI are all out of control. The concern, and yesterday’s hearing dramatically highlights that concern, is that if Trump believes he has Republican cover to get rid of Mueller, he may feel emboldened to act against him even in the presence of broader public support.

Justice Served

It has been two and a half years 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:

Well, good news:

Michael Slager, the former South Carolina police officer who shot and killed Walter Scott, was sentenced Thursday to 20 years in federal prison, a decision the Scott family said gave it a “sense of justice.”

“This is an historic day for civil rights, in particular for officer-involved shootings,” said Chris Stewart, one of the Scott family’s attorneys, at a press conference following the sentencing.

US District Court Judge David Norton made his decision after hearing emotional statements from members of both families. Norton earlier Thursday had said the “appropriate underlying offense” for Slager, who is white, was second-degree murder.

Scott’s family has repeatedly expressed forgiveness to Slager, who said that he was thankful for that. But the victim’s relatives were glad to see the officer held accountable.

“We are hurt,” said Anthony Scott, Walter’s brother, “and we do have some type of passion for the Slager family, in that they have to suffer as well. And we do forgive Michael Slager for what he did. But yes, we did want justice for my brother, and we feel that we have gotten a sense of justice.”

Slager pleaded guilty in May to violation of civil rights by acting under the color of law in Scott’s April 2015 killing. Slager’s 2016 state murder trial ended in a mistrial.

At the time of the shooting, Scott was only the latest black man to be killed in a series of controversial officer-involved shootings that prompted “Black Lives Matter” protests and vigils.

In related news, another cop gets away with murder:

Police in Mesa, Arizona released disturbing body camera video on Thursday hours after a former officer was acquitted of a murder charge in the fatal shooting of an unarmed man.

The verdict cleared Philip Brailsford, 27, of criminal liability in the 2016 death of Daniel Shaver, of Granbury, Texas. He was also found not guilty of reckless manslaughter, reports CBS Phoenix affiliate KPHO-TV.

The shooting occurred at a hotel in the Phoenix suburb where officers responded to a report of someone pointing a gun out of a window. The video, obtained by KPHO, shows Brailsford pointing a gun at Shaver as Shaver lies on the ground, holds his hands in the air, cries and begs the officer not to shoot.

Check out this video. If the jurors got this right, then the law is messed up.

The Republican Machine and Fox’s pro-Trump Hosts Are Working Hard To Discredit Robert Mueller

Yesterday left no doubt: Fox News and Trump Republicans are willing to destroy America’s institutions as long as it keeps them in power.

It starts with Fox News. It starts with Sean Hannity, who’s hearing that special counsel Robert Mueller’s investigation is “illegitimate and corrupt.” That it’s led by a “band of merry Trump-haters” who are trying to reverse the results of the election. And that it must be stopped.

He’s also hearing that the FBI is becoming “America’s secret police,” akin to the KGB in Russia, full of “sickness” and “corruption.”

The overarching message from “Fox & Friends” and “Hannity” is unmistakable: Mr. President, you’re the victim of a “deep state” plot to take you down. Don’t let it happen.

In recent weeks, there’s been a big increase in reporting about Mueller’s probe and how it could affect Trump’s inner circle. At the same time, there’s also been a sharp escalation in the anti-Mueller rhetoric coming from right wing media sources.  With four of Trump’s associates now charged by Mueller’s team, and congressional probes also proceeding in many different directions, other channels are filled with the latest twists and turns about the intensifying investigations.

But viewers who stick to Fox might not know that. The nightly focus is on Mueller’s alleged partisanship, not Trump’s potential problems.

Last weekend, The New York Times and The Washington Post reported that Mueller had removed FBI official Peter Strzok from his team of investigators due to text messages from Strzok that could be interpreted as anti-Trump. Even though Strzok was reassigned to FBI human resources, the story is the centerpiece of the current anti-Mueller hits.

Newt Gingrich, who praised Mueller’s appointment back in May, now sounds like a different person altogether. “Mueller is corrupt. The senior FBI is corrupt. The system is corrupt,” he told Laura Ingraham on Wednesday night.

One hour earlier, the banners on Sean Hannity’s show read “MUELLER’S PARTISAN ATTACK TEAM” and “THE DEEP STATE,” so even if viewers had the volume down, they still saw the message. Channel surfers who stumbled on Fox by mistake might think they had landed in an alternate universe. Hannity began the hour by slamming “Robert Mueller’s partisan, extremely biased, hyper-partisan attack team,” calling the accomplished lawyers “an utter disgrace.” He invoked the U.S. Constitution and said “they now pose a direct threat to you, the American people, and our American republic.” Repeating something he has said dozens of times before, Hannity said, “this entire witch-hunt needs to be shut down — and shut down immediately.”

Then Hannity brought in news anchor turned “legal analyst” Gregg Jarrett, who appears on the program almost every night to savage Mueller and company. “I think we now know that the Mueller investigation is illegitimate and corrupt,” Jarrett said. “And Mueller has been using the FBI as a political weapon. And the FBI has become America’s secret police. Secret surveillance, wiretapping, intimidation, harassment and threats. It’s like the old KGB that comes for you in the dark of the night banging through your door.”

“This is not hyperbole you are using here,” Hannity said, credulously.

Yes, Sean. It is the very definition of hyperbole.

“No. Ask Paul Manafort, they came for him and broke through his front door,” Jarrett said. Jarrett and Hannity commented that if it can happen to Manafort, it can happen to anyone.

Well, it DOES happen to anyone.

The rhetoric doesn’t spew from Fox News. It continues in Congress. FBI Director Christopher Wray defended his agency yesterday in his first public appearance since President Donald Trump said the bureau is “in tatters.”  Wray told the House Judiciary Committee his agents work hard “protecting the American people and upholding the rule of law in all 50 states and in about 80 countries around the world.”
Throughout the hearing, Republican lawmakers have seized on the actions of Peter Strzok, who led the investigation of the Clinton email server as the No. 2 official in the FBI’s counterintelligence division.  He left the Mueller team this past summer after an internal investigation found messages he sent that could be interpreted as showing political bias for Hillary Clinton and against Trump, according to US officials briefed on the matter.

Chairman Bob Goodlatte, R-Virginia, asked Wray about what he’s doing to clear the ranks of the FBI by people “tainted” by bias.

“I think these matters are being looked at, as they should be, by somebody outside the FBI, and when those findings come to me, I will take appropriate action if necessary,” Wray said, referencing the ongoing inspector general investigation. “The first thing I’m doing is respecting the outside independent investigations that are underway. … My preference is to be one of these people who is not an act first and ask questions later guy.”

The allegation of bias is, of course, ridiculous. The assumption is that if you have a political leaning, you cannot be fair and impartial. But is that true? What does say about the Republican Congressmen on the committee?

It’s clear why Fox and some Republicans in Congress are attacking Mueller and the FBI. It is because the heat is on with Trump. They need him. And once Mueller passes a certain point (he may have already passed it), and the investigation moves into litigation, then we are riding a train to Trump’s demise, and even Mueller cannot stop it. So they need to discredit Mueller and the investigators NOW.  That’s what is happening.

But it is a very dangerous game. A Russia kind of propaganda game. When you discredit the FBI, and get a large segment of the country to believe there is no law and order, you create chaos.  Trump will come and go. The damage being done won’t.

Pretty Sure You Need To Have An Attorney To Claim Attorney-Client Privilege

Testifying before Congress on Wednesday, Donald Trump Jr. cited attorney-client privilege and refused to discuss a phone call he had with his father about how to handle the fallout from his June 2016 meeting at Trump Tower with a Russian lawyer. He told the House Intelligence Committee that a lawyer was in the room during the call. Adam Schiff, the top Democrat on the committee, told reporters: “I don’t believe you can shield communications between individuals merely by having an attorney present,” adding “that’s not the purpose of attorney-client privilege” and that “the presence of counsel does not make communications between father and son a privilege.”  What, if anything, the president knew about the Trump Tower meeting as a presidential candidate — and his role in drafting a misleading statement about it once he was president and it became public — are key questions for the special counsel, Robert S. Mueller III, who is investigating Russian interference in the election.

L’il Trump told the committee about his earlier discussions with the White House adviser Hope Hicks about how to respond to the coming New York Times article about the June meeting, first published on July 8. As you recall, his initial statement said the Trump Tower meeting was primarily about the ability of Americans to adopt Russian children. It made no mention of any promise of incriminating information from the Russian government against Mrs. Clinton.

Trump Announces Plans To Undo Natural Monuments

As I type this, Trump is in Salt Lake City announcing his plans to be the anti-Teddy Roosevelt.

Trump’s actions are a dramatic departure from conventional interpretations of the 1906 Antiquities Act, on which the monument designations are based. The act, advocated by President Theodore Roosevelt, was designed to provide safeguards to exceptional historic, cultural, and natural landscapes across the country, most of them located in the West’s public domain. 

The Antiquities Act provides broad authority to presidents to act alone in establishing national monuments. Presidents have declared more than 150 national monuments, many of which became national parks. Four of Utah’s five national parks started as national monuments.

Though previous presidents have adjusted national monuments more than 40 times, all but 14 of those changes were made to expand monument boundaries. No prior president has revoked a national monument designation. None has come close to reducing boundaries by the nearly 2 million acres that Trump is removing from the Bears Ears and Grand Staircase-Escalante national monuments. This is all part of a gift to the drilling, mining and fracking industries.

Public opinion surveys have consistently found that Utah residents are about evenly divided on whether to shrink or maintain the existing boundaries of Bears Ears and Grand Staircase-Escalante.

It is an open question whether a President even has the authority to take away national monuments, or whether that power rests with Congress.

In Trump’s way is the Antiquities Act of 1906 (which does not give the President power to revoke) and the 1976 Federal Land Policy and Management Act, which says the Interior Secretary “shall not .. modify or revoke any withdrawal (to protect land) creating national monuments under the Act of June 8, 1906.”

But the American Enterprise Institute disagrees.  “Under Article I of the Constitution, only Congress can enact domestic statutes with any degree of per­manence,” they write. “A basic principle of the Constitution is that a branch of government can reverse its earlier actions using the same process originally used.”

In response to the argument that the Antiquities Act says nothing about revoking a designation, the AEI notes that the Constitution is similarly silent about passing laws in general. It grants Congress the power to make laws, but there’s no explicit power for it to undo them. (Except by passing a new law.)

They also said that no president can bind a future president.  “Presidents commonly issue executive orders reversing, modifying, or even extending the executive orders of past presidents, and no court has ever questioned that authority, even when it is used to implement statutorily delegated powers,” the AEI writes.

As for that 1976 land management law, the AEI says it only applies to the interior secretary, not the president.

Courts will settle this eventually.

Corrections And Updates And Backtracks To Last Week’s Bombshells

As I posted here last week, Michael Flynn pleaded guilty to lying to the FBI about conversations he had with Russian Ambassador Sergey Kislyak during the presidential transition last December. Flynn is the fourth Trump associate to be charged in Robert Mueller’s investigation into Russian interference in the 2016 election. As I also posted, Flynn promised “full cooperation” with Mueller’s investigation and was prepared to testify that Trump directed him to make contact with the Russians.

That second part was almost correct.  Turns out, Brian Ross at ABC got it wrong:

Now, the only thing that Ross got wrong was the part that Flynn will testify that Trump directed him to make contact with the Russians. It doesn’t mean that Trump DIDN’T do that — just that the anonymous source is not good enough to confirm.

Trump seized on it, of course:

Nnnnnno. It doesn’t make the Russia thing a “witch hunt”. Flynn DID plead guilty, after all.

But the other big news from the weekend was this tweet from Trump:

Why was this significant?  Because this was the first time that Trump has said that he knew Flynn lied to the FBI. Up until now, the White House position was that Flynn lied to Pence… period!  The timeline here is critical:

  1. Flynn lied to the FBI on January 24 2017
  2. Acting Attorney General Sally Yates tells White House (through WH lawyer Don McGahn) that Flynn lied and may be subject to blackmail on January 26 2017
  3. Trump has lunch with FBI Director Comey — “I need loyalty” Trump says — on January 27 2017
  4. Photo of Trump with Flynn and others in Oval Office on January 29 2017
  5. Sally Yates fired on January 30 2017

Flynn isn’t fired until February 13 for lying to Pence (what we’re told at the time) and the next day, in another unusual Trump-Comey meeting alone in the Oval, Trump says to Comey that he hope he’ll “let Flynn go”.

The fact that Trump knew that Flynn lied to the FBI indicates that his subsequent actions could be characterized as “obstruction of justice”.  Therefore, Trump’s tweet that he knew Flynn lied to the FBI is a HUGE and damning admission…. which Trump made AGAIN Saturday evening at 9:06 pm

Meanwhile, the lawyers were doing damage control.  This happened:

President Donald Trump’s personal lawyer, John Dowd, told CNN on Sunday that he wrote a tweet for the @realDonaldTrump Twitter account about the firing of former White House national security adviser Michael Flynn.

“I had to fire General Flynn because he lied to the Vice President and the FBI,” the Saturday tweet reads. “He has pled guilty to those lies. It is a shame because his actions during the transition were lawful. There was nothing to hide!”

Dowd said he drafted the tweet and believes White House social media director Dan Scavino posted it online. He declined to answer additional questions about whether Trump reviewed the tweet before it was posted.

“Enough already,” he said in an email. “I don’t feed the haters.”

The Washington Post reported Saturday that Dowd drafted the tweet, citing two people familiar with the Twitter message. NBC News’ Chuck Todd also reported Sunday on “Meet the Press” that Dowd confirmed he authored the message.

Does Dowd have proof?

Although the mainstream media seems to accept Dowd’s assertion as true, I am not so sure. A criminal defense attorney tweeting on behalf of a client?  I doubt that.  And if he did this tweet, he should have been fired.

In any event, Dowd needs to repeat his assertion (that he authored the tweet) under oath, and Scavino needs to own up to it (under oath) as well. No, it is not attorney-client privileged.

But according to The Washington Post, Dowd is also saying that “Trump knew generally that Flynn’s account to the FBI and Pence (his claim to have never spoken with then-Russian ambassador Sergey Kislyak about sanctions) were similar…”

Pardon me if I don’t see how this latest revelation helps Dowd’s client. Even with this new explanation, we are left with the impression that Trump assumed Flynn had committed a felony. That didn’t stop Trump from pressuring then-FBI director James Comey to go easy on him—or from firing Comey when he didn’t.

So Dowd’s saving tweet doesn’t change the ballgame, because legally, the distinction that Trump believed something as opposed to knowing it might not quell the allegations that he obstructed justice.

And now, this morning, we get this odd legal theory from Dowd, in an interview in Axios:

John Dowd, President Trump’s outside lawyer, outlined to me a new and highly controversial defense/theory in the Russia probe: A president cannot be guilty of obstruction of justice.

The “President cannot obstruct justice because he is the chief law enforcement officer under [the Constitution’s Article II] and has every right to express his view of any case,” Dowd claims.

Dowd says he drafted this weekend’s Trump tweet that many thought strengthened the case for obstruction: The tweet suggested Trump knew Flynn had lied to the FBI when he was fired, raising new questions about the later firing of FBI Director James Comey.

Dowd: “The tweet did not admit obstruction. That is an ignorant and arrogant assertion.”

Ooookay. The ever-increasingly bonkers Alan Dershowitz has been saying the same thing.

Let’s post this from the Brookings Institute (see pp 76-76)

BREAKING — Well, this seems to settle it:

The White House’s chief lawyer told President Donald Trump in January he believed then-national security adviser Michael Flynn had misled the FBI and lied to Vice President Mike Pence and should be fired, a source familiar with the matter said Monday.

The description of the conversation raises new questions about what Trump knew about Flynn’s situation when he urged then-FBI Director James Comey to drop the investigation into Flynn and whether anyone in the White House, including the President himself, attempted to obstruct justice. Special counsel Robert Mueller is investigating whether the Trump campaign colluded with Russians, a probe led by Comey until Trump fired him.

White House counsel Donald McGahn told Trump that based on his conversation with then-acting Attorney General Sally Yates, he believed Flynn had not told the truth in his interview with the FBI or to Pence, the source said. McGahn did not tell the President that Flynn had violated the law in his FBI interview or was under criminal investigation, the source said.

Emphasis mine.

The more we learn, the more likely it seems that the incriminating tweet Trump sent out on Saturday was accurate, regardless of who wrote it.  If Trump knew Flynn lied to the FBI, refused to fire Flynn until later when the news media found out, asked Comey to back off Flynn, then fired Comey after that failed, then the stunning admission in the tweet is true, regardless of who wrote it.

Who Is In Charge Of The Consumer Finance Protection Bureau?

Richard Cordray. the head of the Consumer Financial Protection Bureau, said that he would be leaving as head of the CFPB at the end of this month. Last Friday, November 24, he sent a letter to President Trump, declaring that he’s officially done leading the federal government’s controversial consumer watchdog agency once the clock strikes midnight.

In a separate letter to his staff, Cordray, who is the first-ever director of the fledgling CFPB, announced that chief of staff Leandra English will serve as the bureau’s acting director.

Shortly after Cordray’s announcement Friday, President Trump named Office of Management and Budget Director Mick Mulvaney as the CFPB’s interim director. The back-to-back moves set up a clash over who is in charge of the bureau. Mulvaney, like many Republicans, has been a staunch critic of the CFPB. While serving in Congress, he voted in favor of killing the agency. He and other opponents argue the agency — which was created in the wake of the 2008 financial crisis to keep an eye on Wall Street — has too much power and installs unduly harsh regulations.

In a tweet Friday night, Senator Elizabeth Warren, an architect of the consumer agency, said that under the Dodd-Frank financial reform law, the agency’s deputy director assumes the role of acting director if there’s a vacancy.

Sunday night, lawyers for Leandra English, filed a lawsuit in the US District Court for the District of Columbia seeking to halt the appointment of Mick Mulvaney, who serves as head of the Office of Management and Budget and is also named in the lawsuit.

Which brings us to today, the first workday since the whole thing broke.

Both Mulvaney and English were present at the CFBP this morning. Mulvaney was given full access to the CFPB director’s office with “full cooperation” from its staff, a senior White House official told CNN, adding that the OMB director brought doughnuts for his new staff. English, according to a source familiar with the matter, also was present at the bureau Monday morning, but it was not immediately clear if she and Mulvaney interacted. Mulvaney’s communications director tweeted a photo of his boss “hard at work” in his new position.

Mulvaney running the CFPB is the most literal interpretation of “fox guarding the henhouse” possible. That said, it is typical for the Trump Administration, that puts climate change deniers in charge of the EPA, or Secretary of State Rex Tillerson slowly dismantling the State Department. But unfortunately, the law does not turn on who would be best for the CFPB.

Who’s right? Unfortunately, one needs to get into the weeds to figure that out. This memo by Mary MacLeod, general counsel of the CFPB, does a good job laying out both sides of the legal argument, which turns on whether the position is open due to the “absence” or “vacancy” of the former director. She concludes that the position properly belongs to Mulvaney:

It is a convincing argument, but not everyone agrees

Rep. Barney Frank, D-Mass., a lead author of the Dodd-Frank Act, which created the CFPB, had this to say:

The president still has the ability to appoint a successor, said Frank, but only one who would not destroy the agency, as such a nominee would not get through the Senate. “The way it works, the acting director stays in until a confirmed successor appointed. I don’t think the Senate would confirm someone like Mulvaney, who would destroy the agency. Remember, Sen. Collins is in there and she voted for it. Republicans would like to get rid of the agency legislatively, but they don’t have the votes,” he said.

Former Rep. Brad Miller, D-N.C., the lead champion of the CFPB provision in the House, also said it was the intent of the bill’s authors to keep the acting director independent of the president. “We were very much about the task of trying to create an independent agency that would not be captured by its opponents,” he said. “The statute’s pretty clear. What happens if there’s a vacancy in the director’s spot, the deputy director steps up and serves until the Senate confirms a replacement.”

Laurence Tribe, a renowned constitutional scholar at Harvard Law School, agreed that the statute is clear.
The OLC, in the memo filed [over the weekend], to its credit, admits that the references to unavailability and absence encompass vacancy. They’re not trying to argue that the statute doesn’t cover this. They’re trying to have it both ways. They’re arguing that the president retains an option under the Federal Vacancies Reform Act to override subsequent legislation. They’re trying to have half a loaf and make it a whole loaf. It’s an interesting position but it collapses on itself. It’s completely incoherent. Laws are not typically written that way.

Senate Minority Leader Chuck Schumer, D-N.Y., pushed back against the Mulvaney pick. “The process for succession laid out in Dodd Frank is clear: Leandra English, not Mick Mulvaney, is the acting director of the CFPB. By attempting to install Mr. Mulvaney as director, the Trump administration is ignoring the established, proper, legal order of succession that we purposefully put in place, in order to put a fox in charge of a hen house,” he said in a statement.

The courts will have the last say.

UPDATE: Press secretary Sarah Sanders insists that Mulvaney is in charge of the CFPB

Document Dump: Federal Court Blocks Trump’s Travel Ban… Yet Again

Tired of winning…?

UPDATE: A second federal court rules the same

A federal judge in Maryland early Wednesday issued a second halt on the latest version of President Trump’s travel ban, asserting that the president’s own comments on the campaign trail and on Twitter convinced him that the directive was akin to an unconstitutional Muslim ban.

Breaking: Mueller Empanels DC Grand Jury

Special Counsel Robert Mueller has impaneled a grand jury in Washington to investigate Russia’s interference in the 2016 elections, a sign that his inquiry is growing in intensity and entering a new phase, according to two people familiar with the matter.

The grand jury, which began its work in recent weeks, is a sign that Mr. Mueller’s inquiry is ramping up and that it will likely continue for months. Mr. Mueller is investigating Russia’s efforts to influence the 2016 election and whether President Donald Trump’s campaign or associates colluded with the Kremlin as part of that effort.

A spokesman for Mr. Mueller, Joshua Stueve, declined to comment. Moscow has denied seeking to influence the election, and Mr. Trump has vigorously disputed allegations of collusion. The president has called Mr. Mueller’s inquiry a “witch hunt.”

Ty Cobb, special counsel to the president, said he wasn’t aware that Mr. Mueller had started using a new grand jury. “Grand jury matters are typically secret,” Mr. Cobb said. “The White House favors anything that accelerates the conclusion of his work fairly.…The White House is committed to fully cooperating with Mr. Mueller.”

As many people know, there already has been a grand jury in Virginia, focusing on Michael Flynn.

Before Mr. Mueller was tapped in May to be special counsel, federal prosecutors had been using at least one other grand jury, located in Alexandria, Va., to assist in their criminal investigation of Michael Flynn, a former national security adviser. That probe, which has been taken over by Mr. Mueller’s team, focuses on Mr. Flynn’s work in the private sector on behalf of foreign interests.

So what’s the big deal with THIS new one in D.C?:

Grand juries are powerful investigative tools that allow prosecutors to subpoena documents, put witnesses under oath and seek indictments, if there is evidence of a crime. Legal experts said that the decision by Mr. Mueller to impanel a grand jury suggests he believes he will need to subpoena records and take testimony from witnesses.

A grand jury in Washington is also more convenient for Mr. Mueller and his 16 attorneys—they work just a few blocks from the U.S. federal courthouse where grand juries meet—than one that is 10 traffic-clogged miles away in Virginia.

“This is yet a further sign that there is a long-term, large-scale series of prosecutions being contemplated and being pursued by the special counsel,” said Stephen I. Vladeck, a law professor at the University of Texas. “If there was already a grand jury in Alexandria looking at Flynn, there would be no need to reinvent the wheel for the same guy. This suggests that the investigation is bigger and wider than Flynn, perhaps substantially so.”

It also suggests that Mueller is ready to move to the next phase of his investigation. It reflects that Mueller believes there’s a certain level of “there” there to justify a GJ investigation. You don’t talk to witnesses until you have a pretty good idea as to what the “truth” is (from wiretaps, etc.). That way, you can catch them in a lie.

Document Dump: Protecting Mueller

This bill — from Sens. Lindsey Graham, Cory Booker, Sheldon Whitehouse and Richard Blumenthal — us actually one of two bipartisan bills designed to protect the special counsel from removal by the President or Attorney General. The other bill — by Sens. Thom Tillis and Chris Coons (both on the Senate Judiciary Committee) — does essentially the same thing: it says the DC Circuit Court panel of 3 judges must approve any removal… and only for cause.

Trump Really DOES Want To Get Rid Of Sessions

Trump was VERY busy this morning on his Twitter machine.

It’s hard to deny that Trump does not want his AG Jeff Sessions to stay on when he disses him when you look at the second and third from the bottom tweets.

Trump raised similar questions over the weekend days after telling reporters in an interview that he had second thoughts about nominating Sessions because the former Alabama senator had recused himself from the investigation into Russian meddling in the 2016 election.

What’s going on here?

Well, typically, Trump tipped his hand in his tweets today. If he fires Sessions, he’s stuck with Rosenstein as acting AG who, like Sessions, won’t end the Russia investigation. Of course, it is the same result if he gets Sessions to quit, but it looks better if Sessions quits.  So he’s trying to humiliate Sessions.

Anthony Scaramucci, the new White House communications director, says it’s “probably” correct that Trump wants Sessions gone. According to The Hill, he said didn’t want to speak for the President, but said he thinks Trump has a “certain style” and he is “obviously frustrated.”

Yeah, obviously.

Congress is not amused by Trump’s attacks on his own attorney general:

It’s a lesson that could cost him politically in a Senate where he badly needs Republican support for his lengthy agenda, starting with healthcare on Tuesday.

“I don’t understand it. There’s no more honorable person I’ve ever met in my life than Jeff Sessions,” said Sen. James Inhofe, R-Okla., a close friend of Sessions and his wife. “The only person who is more upset with Trump about this than me, is my wife.”

Sessions spent 20 years in the Senate, winning a reputation for affability and party loyalty. He understood and doggedly practiced the code of what’s been called the world’s most exclusive club: You can disagree without being disagreeable, but you protect the institution and its members.

***

Senators made it clear the attack on one of their own stands to color Trump’s relationship with Senate Republicans, said Inhofe, a senator since 1994.

“I’m 100 percent for the president, but I really have a hard time with this,” he said.

“That’s what he does, I don’t think he means harm with those tweets,” Sen. Orrin Hatch, R-Utah, said of Trump.

But Hatch added, “I’d prefer that he didn’t do that. We’d like Jeff to be treated fairly.”

Sen. Thom Tillis, R-North Carolina, agreed.

”I guess we all have our communication style and that’s one that I would avoid,” Tillis said, adding that the Russia investigation by an outside special counsel should proceed without interruptions: “The fewer distractions we have, the faster the investigation can proceed and the less confusion the electorate has to deal with,” he said.

”Sen. Sessions is showing the independence I expected of him and that’s a healthy thing,” Tillis said.

Even those who said they were nonplussed by Trump’s criticism made it clear they sided with Sessions’ recusal decision.

“Jeff made the right decision. It’s not only a legal decision, but it’s the right decision,” said Sen. James Lankford, R-Okla.

Senator Graham took to Twitter too:


Screwing around with the legal process is serious. So serious that even Republicans in Congress are drawing a red line, and that’s something they rarely have done when Trump is involved.

I hope Trump and Bannon consider that.

And there are even reports that Trump’s cabinet is ready to bail over this (as a last straw). If Erick Erickson can be believed, Tillerson isn’t the only cabinet member who is displeased with the president’s attacks on Sessions.

“If he can get treated that way, what about the rest of us?” one of the President’s Cabinet secretaries asked me with both shock and anger in his voice. I am told reports about Rex Tillerson (not who I talked to) are legitimate. He is quite perturbed with the President’s treatment of his Attorney General and is ready to quit. Secretary Mattis (also not who I talked to) is also bothered by it. They and other Cabinet members are already frustrated by the slow pace of appointments for their staffs, the vetoes over qualified people for not being sufficiently pro-Trump, and the Senate confirmation pace.

In fact, the Cabinet secretary I talked to raised the issue of the White House staff vetoes over loyalty, blasting the White House staff for blocking qualified people of like mind because they were not pro-Trump and now the President is ready to fire the most loyal of all the Cabinet members. “It’s more of a clusterf**k than you even know,” the Cabinet secretary tells me about dealing with the White House on policy. It is not just Tillerson ready to bail.

How’s Sessions handling this? Not well:

Attorney General Jeff Sessions has no plans to leave office, as friends say he’s grown angry with President Donald Trump following a series of attacks meant to marginalize his power and, potentially, encourage his resignation.

“Sessions is totally pissed off about it,” said a Sessions ally familiar with his thinking. “It’s beyond insane. It’s cruel and it’s insane and it’s stupid.”

Cruel, Insane and Stupid.  Trumpworld.

Where The Rubber Meets The Road

I guess it was bound to happen — the ultimate constitutional question: What happened when the top law enforcement agency refuses to comply with the courts?

It has happened on the state level — with desegregation. The governors refused to comply with Brown v Board of Education. So the federal government was sent in, in the form of the US Department of Justice. They sent in the National Guard.

But what happens if the US Department of Justice itself doesn’t comply with a court order? We’re about to find out. And it is such a small matter, too:

In defiance of a court order, the Justice Department is refusing to release part of a security form dealing with Attorney General Jeff Sessions’ contacts with the Russian government.

On June 12, a judge had ordered the agency to provide the information within 30 days, a deadline that passed on Wednesday.

A recently launched ethics watchdog group called American Oversight filed a Freedom of Information Act request in March for sections of the Standard Form 86 relating to Sessions’ contact “with any official of the Russian government.”

The group then filed a lawsuit in April after it said the government didn’t provide the documents.

“Jeff Sessions is our nation’s top law enforcement officer, and it is shocking one of his first acts after being named Attorney General was to mislead his own agency about a matter of national security,” the group’s executive director, Austin Evers, said in a statement.

He continued: “The court gave DOJ thirty days to produce Attorney General Sessions’s security clearance form, DOJ has already confirmed its contents to the press and Sessions has testified about it to Congress, so there is no good reason to withhold this document from the public.”

On Wednesday, a spokesperson for the Justice Department had told NPR that the documents would be released by the deadline, NPR’s Mary Louise Kelly reports.

The Standard Form 86, more commonly called SF86, is a very detailed form required to be filled out for obtaining security clearance for certain government positions. It’s the same form presidential adviser and son-in-law Jared Kushner has recently had to revise after omitting meetings with Russian officials.

Sessions has admitted speaking with Russia’s ambassador to the U.S., Sergey Kislyak, at least twice in 2016, which he did not disclose at his confirmation hearing. But in June, Sessions testified to senators that the “suggestion that I participated in any collusion” with the Russian government “is an appalling and detestable lie.”

American Oversight says it’s nonpartisan, but its staff has connections to Democrats, according to USA Today.

A status conference in the case is scheduled for 10 a.m. Thursday at the U.S. District Court for the District of Columbia.

This is all under-the-radar right now. I don’t imagine it can remain that way for very long.  To be continued…..

UPDATE – – 2 pm:

In a filing this morning with the U.S. District Court for the District of Columbia, the Justice Department released that part of Sessions’ form which poses the question:

“Have you or any of your immediate family in the past seven (7) years [bold font in original] had any contact with a foreign government, its establishment (such as embassy, consulate, agency, military service, intelligence or security service, etc.) or its representatives, whether inside or outside the U.S.?”

Sessions checked “No.”

Well, at least he’s on the record now.

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”.

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.

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.

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:

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.

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:

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.

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.

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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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 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.

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.

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.

Cooper Files Response To DOJ Complaint

News-Observer:

Gov. Pat McCrory announced Thursday that his office and four outside attorneys would represent North Carolina in the federal government’s challenge of House Bill 2, hours after making a political issue of a court document filed in the case by his Democratic challenger.

An exchange of political volleys Thursday started when the Republican governor portrayed Attorney General Roy Cooper – who has said he would not defend the law – as reversing himself by responding to the complaint by the Department of Justice.

Cooper’s office had filed the response on Friday, with a deadline to respond looming and no other private attorneys representing North Carolina at the time – raising the possibility that the state could have been left unrepresented or had a judgment entered against it for lack of response. The filing asked for an extension of the deadline.

On Thursday, Cooper’s campaign called McCrory’s criticism misleading, reiterating Cooper’s opposition to the law and that he wouldn’t defend it.

McCrory’s campaign then called on Cooper to resign as attorney general “for gross incompetence.”

U.S. Attorney General Loretta Lynch and the federal Department of Justice brought the lawsuit last month, naming as defendants the state, McCrory, the state Department of Public Safety and the UNC system and its board of governors.

Put another way, McCrory was going to blow off the deadline in the DOJ lawsuit, so Cooper filed a response to the complaint.  Cooper agrees with the DOJ, so McCrory was not happy with the nature of the response.

Basically, it was a set-up.  McCrory wanted to make Cooper look bad by making Cooper stick to his guns and not defend the case.  When Cooper did file a (conceding) response, McCrory could then claim that Cooper was incompetent.

Except it really doesn’t seem that way.  It seems that Cooper saved McCrory from a default judgment.

Bad News For McCrory And HB2 Lovers

After the Fourth Circuit Court of Appeals rejected a request Tuesday to reconsider a previous ruling affirming the rights of a Virginia transgender student, Gov. Pat McCrory’s defense of HB2 has a hit a major road block.

The intermingling of the two cases in question—the pivotal Virginia case (G.G. v. Gloucester County School Board) decided in favor of transgender student Gavin Grimm, and McCrory’s HB2 defense, McCrory v. United States—charts a course for the future demise of HB2’s bathroom provision.

Here are the basic facts governing McCrory’s case in defense of HB2:

1) North Carolina falls within the Fourth Circuit’s jurisdiction, which means the Virginia ruling siding with a transgender student’s right to use their bathroom of choice applies to the Tar Heel State.

2) Grimm’s case was decided on the basis of sex discrimination prohibitions included in Title IX of the Education Amendments of 1972, a federal law that McCrory’s lawsuit against the federal government fails to address, writes Ian Millhiser.

The Justice Department’s letter concludes that HB2 violates three separate federal laws, Title VII, the Violence Against Women Reauthorization Act, and Title IX of the Education Amendments of 1972. McCrory’s complaint claims that the state is not violating the first of these two laws, but it is conspicuously silent regarding Title IX. […] McCrory’s silence regarding Title IX may be an acknowledgement that any effort to defend his states actions under Title IX is doomed.

3. Now that the Fourth Circuit has declined to rehear G.G., the only other avenue for reversal of the ruling is the Supreme Court, which seems unlikely to overturn it—if the justices even decide to take up the question.

Court Opinion: 4th Circuit Sides with Transgender High School Student Suing School Board for Access to Boy’s Bathroom

The Fourth Circuit just reversed a lower Virginia court, which had tossed a lawsuit by a transgender boy against the school district which barred his access to the boy’s room.

Not a final decision on the merits — the case was handed back down to the Virginia federal court.  But a good harbinger, since on other federal appeals court has weighed in on the issue.

I should also mention that my city did a good thing last night, if only symbolic:

The Winston-Salem City Council approved Monday night a resolution highly critical of much of the new House Bill 2 legislation that has set off controversy in the state and beyond over transgender restroom use and LGBT rights.

On a 6-1 vote, the council approved a resolution drawn up by Council Member Dan Besse calling on the city’s representatives in Raleigh to work toward undoing “inadequately considered and damaging legislative changes” that opponents see in the law.

The Besse resolution doesn’t mention the Charlotte restroom ordinance that provoked the General Assembly into action, one that would have given transgender people the right to use the restroom corresponding to their chosen gender identification. In fact, Besse said all along he wouldn’t ask council members to take a stand on that issue.

But Besse’s resolution does fault HB2 for taking away the ability of local governments to enact local ordinances concerning discrimination. As well, the resolution criticizes the law for preventing local governments from influencing private employer worker benefits by making the benefits a condition for getting a city contract.

The resolution carries no legal weight, but adds Winston-Salem to the growing list of N.C. cities voicing opposition to the new law.

The one Republican who voted against even has some problems with HB2:

Council Member Robert Clark, the board’s only Republican, was also the sole member to vote against the resolution. But Clark voiced concerns about some aspects of HB2 that he believes should be reconsidered, although he said he shares the concerns voiced by lawmakers about “male genitalia in female locker rooms” that were voiced when the bill was passed.

“At the same time, I recognize the difficulty a transgender person would have navigating a very private dilemma,” Clark said, adding that a third restroom might be a solution but isn’t one that has been proposed.

“We must, as a state, develop policies that protect civil rights of all persons while equally protecting the privacy rights of all as well,” Clark said.

And our AG made this point:

Besse’s resolution and Clark both took issue with the provision of HB2 that prevents someone from suing in state court for any kind of discrimination.

And one of Clark’s objections isn’t mentioned in Besse’s resolution but was pointed out as a problem with the legislation by Angela Carmon, the city attorney.

Carmon recently said the state law’s anti-discrimination measures — which do not mention sexual orientation or gender identity — could, if applied to the city’s own employment practices, put the city at odds with federal civil rights regulations that are increasingly being interpreted as covering sexual orientation and gender identity.

So. Yeah.  Good thing.

The Yahoos Get Their Day In Court

Remember that 41-day occupation of the Malheur National Wildlife Refuge that finally ended with one dude getting killed?

Yeah, it’s still a rallying cry for the lunatic right, who love to carry around the Constitution but haven’t bothered to have it read and explained to them (except by other lunatics).

Seven men are facing federal charges of conspiracy, weapon, theft and damaging government property charges in Portland, Oregon.  Five of them appeared in court Friday and not surprisingly, it was a circus.  I guess they don’t recognize the authority of the court over them.

Two sons of Nevada rancher Cliven Bundy and three other men refused to enter pleas in federal court in Las Vegas to charges in an armed confrontation with government agents two years ago.

Magistrate Judge George Foley Jr. entered not guilty pleas on behalf of each man during a sometimes contentious arraignment that featured cat-calls and cheers from about 30 Bundy backers and defendants’ family members, under watchful eyes of about a dozen U.S. marshals.

“We don’t need any outbursts,” Foley warned from the U.S. District Court bench Friday. Twice he told the restive audience, “This is not a show.”

Oh, it will be.  Here’s how I know (emphasis mine)

His brother and co-defendant, Ryan Bundy, professed to understand his rights but not the charges against him. He also said he wants to serve as his own lawyer.

Yup.  Bundy is going to put The United States Government (a federal corporation) on trial!!

“You’re out of order!  You’re out of order!  This whole country’s out of order!”

Payne told the judge it was “preposterous, sir,” to have to defend himself against federal charges in two jurisdictions at the same time.

“I don’t understand the pretense of this level of government to bring forth such charges,” he added.

Brian Cavalier finished his arraignment — “I will not be entering a plea today,” he said — by offering federal prosecutors a pocket copy of the U.S. Constitution.

Jesus wept.  Madison too.

 

Good News From Newtown

conn_school_shooting

The lawsuit survives:

BRIDGEPORT – In a shot heard around the nation’s gun makers and dealers, a Superior Court judge Thursday refused to toss out the lawsuit by the families of the Sandy Hook victims against the manufacturer of the gun used by Adam Lanza to kill the 26 school children and teachers in December 2012.

Judge Barbara Bellis ruled that the federal law protecting gun makers from lawsuits does not override the “legal sufficiency” of the claims by the Sandy Hook families that the gun used by Lanza should never have been made available for sale to civilians.

The judge ruled the lawsuit will go on and all sides are to report to her courtroom on April 19 for a status conference.

In January 2015, the families of 10 victims of the Sandy Hook tragedy filed suit against the Remington Arms Company, the maker of the Bushmaster AR-15, used by Lanza, Camfour Holding LLC, the gun’s distributor and Riverview Sales, the store where Lanza’s mother bought the gun. They claimed the gun maker and sellers knew that civilians are unfit to operate the assault rifle and yet continue selling it to civilians disregarding the threat the gun poses.

The lawsuit also alleges that Remington and the other defendants “Unethically, oppressively, immorally and unscrupulously marketed and promoted the assaultive qualities and military uses of AR-15s to civilian purchasers.”

On Dec. 11, 2015, Remington, Camfour and the gun store asked Judge Bellis to throw out the lawsuit, claiming they are immune from the families’ claims under the federal Protection of Lawful Commerce in Arms Act. A hearing on the defendants’ motion was held on Feb. 22.

PLCAA bars lawsuits against manufacturers and sellers of a product that is used in a criminal action.

However, in analyzing the federal law, Bellis points out that a federal court previously ruled that PLCAA states a lawsuit against a manufacturer may not be brought and the statement, “May not,” is not a clear statement from congress limiting the power of courts in the cases.

“The court concludes that any immunity that PLCAA may provide does not implicate this court’s subject matter jurisdiction,” Bellis ruled in her 18-page decision. “Accordingly, the defendants’ motions to dismiss, in which they claim that the court lacks subject matter jurisdiction, cannot be granted on the basis of PLCAA.”

It’s important to understand that this is a ruling on subject matter jurisdiction, i.e., whether the court has the power to decide the case at all.  It has nothing to do with the merits of the case.  Still, the PLCAA was, and still is, a huge obstacle in this lawsuit.  Nice to have it beat out once.

For THIS, I Finally Appear In Playbill

Sigh:

In a new statement provided to Playbill.com by Schwartz’s team, the composer-lyricist takes a hard line against North Carolina Governor McCrory and encourages citizens of the stage to turn their anger into activism.

It can be read in full below:

First of all, I think it’s important to remember that this is not just me, this is a collective action by a great many theatre artists, as well as those from other fields. For instance, I saw this morning that 269 authors and illustrators of children’s books are declining to attend conferences and festivals in North Carolina as long as the law is in force.

I have received a great number of responses. Not a single one was in support of the law or attempted to justify it in any way. The majority of them were supportive of the action I and my colleagues have taken, but several from North Carolina, while expressing sympathy with the goal, took exception to the means. Their arguments were twofold: that it unfairly targeted those who were already opposed to the law, that is people involved in the arts, and that it deprived people of the chance to raise the sensibilities of their audiences by exposure to works that promote tolerance. I received one particularly poignant letter from a mother who asked how she would explain it to her son, who was learning so much from his involvement in community theatre and now would be unable to do one of my shows.

While I don’t deny there is merit to these arguments, I continue to feel that the only way to bring about a quick reversal is for people in North Carolina to become angered enough that they put pressure on the governor and legislature. This may be cynical of me, but I believe that the only thing Governor McCrory and his cronies in the legislature understand is the threat they may not be re-elected. As long as they feel that the bigots in their state are going to support them, while the rest don’t consider it an important enough issue to become exercised about, they are not likely to change anything. As I wrote to one of those who responded to me, “In a democracy, I think we all have to take responsibility for the policies of the states we live in. If my home state of Connecticut were to pass such a law, I would absolutely expect consequences that would affect me, even though I would be personally opposed to it. As I have seen demonstrated in the past, the most effective way to fight legal bigotry such as HB-2 is through real consequences that bring about the anger of the electorate and threaten the re-election of the perpetrators.”

In support of this view, yesterday I heard from a local North Carolina attorney, one of those who had argued against my methods, that “the outpouring of disgust from CEOs has, I think, taken the NC General Assembly and Governor by surprise, so much so that many local newspapers are writing that a repeal of the law is no longer a question of ‘if’, but of ‘when’. To that end, I thank you and other artists who have spoken out against HB2.” I hope he’s right, not only because it will mean the end of this reprehensible law, but because it demonstrates that each individual speaking out and acting against bigotry and injustice, in whatever small way he or she can, is able to have a big cumulative effect.

One last thing: I have seen some of the news media report the intent of HB-2 as being about the use of bathrooms by transgender people, as if that were the only content of the bill. This is sloppy reporting, and a parroting of the disingenuous line of Gov. McCrory and those who passed the bill. This bill forbids any municipality in the state from passing any protections whatsoever against discrimination towards LGBT citizens. There are other heinous things in it as well. It is masquerading as only having to do with bathrooms, and the news media should not fall for it.

Thanks for your attention to this, Stephen Schwartz

The North Carolina attorney he was referring to in the highlighted paragraph above?  C’est moi.  We’ve been having a little back-and-forth on this – Stephen and I.

Look, Schwartz is not the enemy.  McCrory and his cronies are.  It’s unfortunate that Schwartz thinks that, by withholding rights from schools and non-profits, this will compel the Republicans to change their mind about HB2 or create a groundswell of outrage that Republicans will have changed forced on them.  Regrettably, neither is true.  But… this is the best weapon that Schwartz has in his Bat-utility belt, so you can’t blame him for using it.  Better than those who are not speaking out at all.

P.S.  Also made the Hollywood Reporter.

Scalia’s Absence Already Having An Impact

If Scalia was alive, this case would have ended up differently:

A case that had the potential to weaken public sector unions across the United States ended with a somewhat unexpected victory for unions on Tuesday, as the Supreme Court divided 4-4 on the question of requiring nonmembers to pay a fee to the public sector union that negotiates the collective bargain agreement that covers them as well.

The split vote in Friedrichs v. California Teachers Association means a lower court verdict in favor of the union stands.

If Justice Scalia had been around to weigh in on the anti-union side, which he assuredly would have, then all 50 states would almost certainly have magically become “right to work” states.

This shows the power that one person can have on the court.  And the significance of Obama’s current nominee.  Or indeed, the upcoming Presidential Election.

Gov McCrory Signs HB2 Into Law

Here’s why he did it:

… which kind of reminds me of when Edith Bunker of “All in The Family” couldn’t understand how a man could be in love with another man, and therefore didn’t understand the concept of gay rights.  The ordinance only defies common sense if you are blind to the problem it seeks to remedy.

Speaker Jim Moore also defended the law, saying:

“One of the biggest issues was about privacy. . . The way the ordinance was written by City Council in Charlotte, it would have allowed a man to go into a bathroom, locker or any changing facility, where women are — even if he was a man. We were concerned. Obviously there is the security risk of a sexual predator, but there is the issue of privacy.”

The final bill is attached below the fold.

Charlotte Mayor Jennifer Roberts, a Democrat, released a statement saying she was appalled by the bill’s passage.

“This legislation is literally the most anti-LGBT legislation in the country,” she said Wednesday.

So how did we get here?

North Carolina, like most states, legally permits discrimination against people based on sexual orientation or gender identity in public accommodations. In comparison, discrimination based on race and religion, for example, in public accommodations is forbidden by federal and state laws.

Charlotte was essentially trying to fix this gap in civil rights laws. By expanding the city’s existing civil rights protections, the city council hoped to make it clear that LGBTQ people should be able to go to a bar or hail a taxi without the fear of legally allowed discrimination.

And so on February 22, Charlotte came forward with an ordinance which did just that:

The changes mean businesses in Charlotte can’t discriminate against gay, lesbian or transgender customers, in addition to long-standing protections based on race, age, religion and gender. The ordinance applies to places of public accommodation, such as bars, restaurants and stores. It also applies to taxis.

The most controversial part of the ordinance would allow transgender residents to use either a men’s or women’s bathroom, depending on the gender with which they identify.

And that’s when state lawmakers jumped into action, quickly proposing the new state law which was signed by the governor yesterday.

Here’s what the state’s law does:

  1. The statute overturns and bans local laws (including Charlotte’s) that don’t conform to the state’s nondiscrimination laws for the workplace and public accommodations (hotels, restaurants, and other places that serve the public). Since the state doesn’t ban discrimination based on sexual orientation or gender identity in the workplace or public accommodations, this effectively forces all cities and counties to keep it legal to discriminate against LGBTQ people in these settings.
  2. It prohibits transgender people from using bathrooms or locker rooms in schools and government agencies based solely on their gender identity. Instead, they’re forced to use bathrooms and locker rooms based on the gender noted on their birth certificate, which can be changed through an arduous process after gender-affirming surgery but not before then. Public facilities can still build unisex single-person bathrooms to accommodate trans people, but it’s not required.

The governor and bill sponsors want the focus to be on the bathroom issue — it is something everyone can relate to — but that will involve a lot of silly fearmongering that has little basis in reality.  Sexual predators can exist regardless of the sexual orientation of the predator OR victim.  You don’t reduce incidents of sexual predators simply by discriminating against people of a certain sexual orientation.  The one has nothing to do with the other.  And in fact, we know from experience in places which permit transgender accommodation that the fears of heightened sexual assault or invasion of privacy are unfounded.

Cambridge, Mass, for instance:

Back in 1984 Cambridge enacted an ordinance that established the Human Rights Commission. The purpose of the ordinance was to protect the human rights of all citizens of the City. In 1997 this ordinance was amended to specifically include gender identity and expression. Much like the Transgender Equal Rights Bill proposal, the City of Cambridge sought to offer protection to transgender individuals from being harassed, fired from a job, denied access to a public place, or denied or evicted from housing. Since this 1997 amendment there have been no incidents or issues regarding persons abusing this ordinance or using them as a defense to commit crimes. Specifically, as was raised as a concern if the bill were to be passed, there have been no incidents of men dressing up as women to commit crimes in female bathrooms and using the city ordinance as a defense.

No incidents in almost 20 years.

But the bathroom thing is partly a diversion.  What is at stake here is LGBT rights and non-discrimination laws in a broader sense. This is the new battlefront after the gay marriage victories.

Already, two states have passed laws that preempt local non-discrimination provisions. In 2011, Tennessee passed such a law, and Arkansas passed one in 2015—both in responses to cities adopting or considering ordinances.

North Carolina’s law us like the Tennessee and Arkansas law.  This is the first time that a law has been passed at the state level which mandates that students use the bathroom corresponding to their “biological sex” or some similar phrase.  In February, South Dakota lawmakers passed a similar bill, but Republican Governor Dennis Daugaard vetoed it, saying the law did not answer any pressing need and that local authorities were better-equipped to handle the issue than state lawmakers.

The student-restroom laws in North Carolina and elsewhere raise other questions, most notably whether schools fall afoul of federal Title IX regulation and thus endanger federal funding. It would be ironic if the North Carolina’s attempt to preempt Charlotte’s ordinances was itself preempted by federal law, but that’s certainly a highly possible outcome.

The other problem with the new state law is the notion that municipalities must conform to the state’s nondiscrimination laws.  While that is generally true, “conformity to nondiscrimination laws” has never meant that municipalities had to be as discriminatory as the state.  Rather, it has always meant that municipalities must be at least as NONdiscriminatory as the state.  Put another way, the purpose of non-discrimination laws is, to stop discrimination.  If a municipality wants to do better than the state at stopping discriminating, it has always been free to do that. That’t the way it has been in every state in the country.  Charlotte WAS conforming to North Carolina’s non-discrimination laws.  AND it added a few non-discrimination laws of its own.

But the rationale of North Carolina’s new state law turns the whole idea of non-discrimination on its head.

Another rationale for the new law is the specious argument that state laws regarding non-discrimination should be consistent throughout the state — that this will somehow help intra-state commerce.  Sounds good and legal and rational…. until you actually think about it.  How is intrastate commerce affected at all if taxis can ignore LGBTQ people in Raleigh, but can’t in Charlotte?  Intrastate commerce isn’t impacted at all.  Nor is it affected if the bathroom rules are different in different municipalities.

And if Charlotte wants to prevent businesses from engaging in wage discrimination against LGBTQ workers — well, that doesn’t impact intrastate commerce either.  Yes, it makes Charlotte a more appealing place to work than Raleigh if you are a member of the LGBTQ community (or, you know, the human race), but that’s Raleigh’s problem.  It doesn’t affect THE STATE or intrastate commerce.  So this “conformity of nondiscrimination laws throughout the state” is just a bullshit rationale.

And so the next fight begins.  Personally, I am not worried about the final outcome.  I’ve been around long enough to see the arc of justice, and which way it bends.  In the 1970s and 1980s, when transgender discrimination issues started poking up, they almost universally failed.   Not so anymore.  Courts are beginning to recognize that that a person could bring a claim under Title VII’s ban on sex discrimination because an employer views an employee’s sexual orientation as “not consistent with … acceptable gender roles.”  The U.S. Department of Labor has acknowledged the ruling in Macy v Holder — so now, if you are a business that wants a government contract, fat chance of getting that contract if you discriminate on the basis of gender identity or transgender status.  [UPDATE:  I’m going to list some federal court decisions which support coverage for transgender Individuals as sex discrimination]

But it is just frustrating to have to continually have these battles for civil rights and, indeed, common decency.  I just wish the haters would get tired of losing and give it up already.

Missing The Point

The award goes to Gersh Kuntzman of the New York Daily News for writing this:

No disrespect to the jury in the Erin Andrews case, but I can’t breathe.

The Fox Sports reporter just got a $55 million award for the pain and suffering of being videotaped naked in a Nashville hotel room in 2008.

Fifty five million dollars because people got to see Erin Andrews naked on the Internet.

But Erin Andrews is still alive and, as the defendants in the case argued, is certainly thriving. She’s free to go on “Dancing with the Stars” or schmooze with NFL players. But a jury felt her pain — and treated the symptoms with cash. America, what a country.

He then goes on to note that Eric Garner, choked to death by an NYPD cop on a city street, received only $5.9 million (well, his family received it), and the family of Freddie Gray (killed by Baltimore police) received only $6.4 million.

Well, yyyyyeah, but they settled the case.  I’m not applauding or criticizing the families’ decisions to do that, but when you settle a case, you generally get a lot less.

Also, there’s no way Andrews gets $55 million.  Barrett, the guy who did that actual filming, most certainly doesn’t have the ability to pay even a fraction of the $28 million he’s on the hook for, and the hotel owners will likely appeal and try to settle for a lower amount. Add in attorney fees and other litigation expenses, and the $55 million number dwindles.  It wouldn’t surprise me if the amount she got was less than 6 million, which is peanuts to the hotel industry

And keep in mind, there is actual pain and suffering. Andrews broke down repeatedly during the trial discussing how the shame of the incident still follows her around seven years later. The video is still on the internet. People are still watching. She is still being blamed for what happened, and it’s likely that no matter what she achieves in her career, she always will be.

Her father also took the stand and talked about how much his daughter has changed since the video was released online.  “She’s terrified. She’s depressed. She cries. She’s full of anxiety. She’s a very, very changed person. She’s not the girl that we used to know at all,” he said.

It’s also crucial to remember that the jury was not tasked with comparing Andrews’ suffering to all of the great tragedies in the world. They were asked to look at the mental, emotional, and physical pain and suffering Andrews has endured, and gauge her subsequent loss of capacity for the enjoyment for life.

Why not $55 million?

Breaking: Scalia Dead at 79

Just coming over the news. Found dead at a West Texas “luxury ranch”, whatever that is.

UPDATE: Very quick initial thoughts (I will “eulogies” him later.)

The political implications of this are huge. For one thing, this Supreme Court term had many important 5-4 issues in front of the Court, or… what would have been 5-4. Immigration, climate change, even abortion… big issues. These become 4-4… which means the lower court stands (for better or for worse).

More importantly, this is the first time since Clarence Thomas 25 years ago that a President will attempt to nominate an Associate Justice with the Senate (who needs to approve) in the majority of the other party. And even with Thomas, Bush still had two years left. Obama is in his last year. Will the Republican Senate try to “run out the clock”? You bet. Will that itself be controversial? Yes, and expect that itself to be a campaign issue about weekday is wrong with Washington.

And speaking of the campaigns, this becomes a huge issue, guaranteed to motivate voters on both sides.

The political landscape, and in many ways, the future direction of the country have changed, although nobody knows which way.

For the first time in maybe ever, this election will control ALL THREE branches of government. Think about that.

The Sad Story Of Christine Mumma

mummaThe North Carolina Bar just ruled that Christine Mumma violated professional conduct rules in her quest to free an innocent man from prison.

Mumma is an attorney for the North Carolina Innocence Project (actually, The NC Center on Actual Innocence)  She was trying to free Joseph Sledge, 71, who had spent more than three decades in prison for a double homicide he did not commit.  Mumma and Sledge are pictured at the right.

The prosecutor was reluctant to release Sledge unless Mumma could find DNA matching the suspect in the double murder.  So Mumma visited the home of Marie Andrus, the woman from whom she was trying to get DNA.  Ms. Andrus’ sons (one or both of them) were suspects in the crime.

Ms. Andrus refused to give any DNA, but Mumma left the house with a water bottle, thereby obtaining the DNA.  (The full complaint is below the fold).

Yeah, it was the wrong thing to do (and Ms. Andrus has forgiven Mumma and understands), and so the disciplinary panel ruled against Ms. Mumma.

As an aside,  I should mention that Sledge was later found innocent and released early last year.

I write this with sadness.  People like Mumma deserve medals.  I can’t help but wonder if a little of this was payback from the state of NC.  I hope the consequences of this ruling today are not too harsh.  There needs to be more like Mumma.

Florida Can No Longer Lock Mentally Disabled People And Forget About Them

Fifteen years ago, J.R. — an intellectually disabled man who “functions as a seven-year old.” — was charged with sexual battery, but he was never tried because a court found him incompetent to stand trial. Instead, J.R. was involuntarily committed to a residential mental facility by a court order that contains no end date.

End of story.  You see, under Florida law, the only entity that can order people like J.R. to be released is the court that originally ordered those people to be committed. And those courts have no obligation to conduct periodic reviews of whether institutionalized people.belong in a mental institution.

J.R. for example did not get a hearing since 2005.

I think the gravity of that needs to sink in.  Obviously, there was a competency hearing of some kind, so J.R. received “due process” under the Constitution.  Yet, he is in effect incarcerated indefinitely, even though he was never convicted of a crime.  And that’s a huge constitutional problem.

Fortunately, in a decision handed down by the Eleventh Circuit federal appeals court yesterday, this is no longer permissible.

“A state must release a person who is involuntarily committed if the grounds for his commitment cease to exist,” Judge Beverly Martin explained in her opinion on behalf of a two-judge panel. That constitutional requirement, however, “is toothless if a state does not periodically review whether the grounds for commitment are met.”

Specifically, Judge Martin notes, J.R. was committed under a law that permits the institutionalization of people who lack “‘basic survival and self-care skills to such a degree that close supervision and habilitation in a residential setting is necessary and, if not provided, would result in a real and present threat of substantial harm to the person’s well-being’ or would leave the person ‘likely to physically injure others if allowed to remain at liberty.’” J.R. may very well have presented a danger to others at the time of his confinement, but he has now lived more than a decade in a facility where he could learn coping and socialization skills that may eliminate that danger. He’s also been convicted of no crime.

At the very least, Martin’s opinion establishes, he should not remain confined forever because no one has bothered to look into whether his commitment can still be justified.

It’s some small progress in the law recognizing the rights of the mentally ill.

“Happy Birthday” Now In Public Domain

Finally:

A judge grants summary judgment to a filmmaker challenging Warner/Chappell’s copyright to a song more than a century old.

The world’s most popular English-language song is potentially free from copyright after a federal judge ruled on Tuesday that filmmakers challenging Warner/Chappell Music’s hold on “Happy Birthday to You” should be granted summary judgment.

According to the opinion on Tuesday from U.S. District Judge George H. King, “Because Summy Co. never acquired the rights to the Happy Birthday lyrics, Defendants, as Summy Co.’s purported successors-in-interest, do not own a valid copyright in the Happy Birthday lyrics.”

The ruling means that Warner/Chappell will lose out on $2 million a year in reported revenue on the song. Unless something happens at an appellate court or unless someone else comes forward with a valid claim of ownership to the song, filmmakers like director Jennifer Nelson — who sued in 2013 over demands as much as six figures to license — will no longer have to pay to feature “Happy Birthday” in motion pictures and television shows.

The “Happy Birthday” song dates to late 19th century work by a schoolteacher named Patty Smith Hill and her sister Mildred Hill.

The Hill sisters later assigned rights to a publishing company owned by Clayton Summy. Later, copyright registrations were made by Sumny’s company on “Happy Birthday.” Warner/Chappell has been contending that the 1935 registration covered both the piano arrangement as well as nearly universally known lyrics. The melody wasn’t in contention.

Today’s opinion rejects Warner’s argument that a copyright entitles them to a presumption of validity with the judge noting that it isn’t particularly clear whether the registration included the lyrics. Furthermore, the ruling establishes that rights never properly transferred.

“Defendants ask us to find that the Hill sisters eventually gave Summy Co. the rights in the lyrics to exploit and protect, but this assertion has no support in the record. The Hill sisters gave Summy Co. the rights to the melody, and the rights to piano arrangements based on the melody, but never any rights to the lyrics.”

With a nod towards plaintiffs’ early contentions in the case that the song appeared in early 20th century schoolbooks, the judge adds that the Hill sisters never objected to publication until 1934 — four decades after they wrote the song. Even then, the Hill sisters asserted rights on the melody, not the lyrics.

The judge rules that plaintiffs can’t score on a claim of copyright abandonment — it would have been a triable issue — but there’s still enough in the record to give them victory on another aspect. Even if the Hill sisters still held common law rights to the lyrics when they made their later deals with Summy, the judge says there’s no plausible evidence to support the theory they gave those rights to Summy Co.

In fact, Warner may owe money to people who have paid for rights to “Happy Birthday” in the past.

The opinion is below the fold as a PDF:

The Back End Of The Kentucky Court Clerk

It looks like Kentucky County Clerk Kim Davis doesn’t want to go back to jail after all.

Kim Davis, the embattled Kentucky county clerk, at the center of the dispute over gay marriage and religious liberty, appeared to back down from the threat of more jail time Monday, saying while she still refuses to authorize marriage licenses, she will not interfere with a deputy clerk who began providing them more than a week ago.

Davis returned to work Monday, her first time in the office since her high-profile release from the Carter County Detention Center last week. Emotional and flanked by her son, Nathan, Davis read a statement outside the courthouse, bemoaning that her deputy clerks have been caught in the middle of her case.

“If any of them feels that they must issue an unauthorized license to avoid being thrown in jail, I understand their tough choice and I will take no action against them,” she said. “However, any unauthorized license they issue will not have my name, my title or my authority on it. Instead, the license will state that they are issued pursuant to a federal court order.”

Great. Fine. Wonderful. Now go away.

Breaking: Kim Davis Released

Details coming.

UPDATE – 1:00 pm:  The contempt order was lifted by a US district court judge.  Unclear if it was the same judge who gave the contempt order or if it was lifted on appeal.

UPDATE – 1:15 pm:  It was the same judge:

A federal judge ruled Tuesday that a Kentucky clerk who has refused to issue marriage licenses to same-sex couples may leave prison — as long as she doesn’t interfere with the licenses that her deputies have been granting since her incarceration last week.

U.S. District Judge David Bunning ordered Rowan County Clerk Kim Davis released, and said that if she did not follow his guidance, “appropriate sanctions will be considered.”

Davis’ attorney, Mat Staver, told NBC News that accommodation was unlikely to suffice.

“We’re back to Square One,” Staver said. “She’s been released, but there’s been no resolution.”

Bunning’s order also requires the five deputy clerks in Rowan County to file status reports every 14 days detailing their compliance with his earlier orders that the office issue licenses to same-sex couples in accordance with a June U.S. Supreme Court ruling.

Davis, 49, has repeatedly defied the courts, saying that authorizing the licenses would violate her Christian beliefs. Arguing that her religious freedom is being compromised, she has asked state officials to develop alternative ways for the licenses to be issued without requiring her to authorize them.

Bunning ordered her jailed last Thursday, and she has become a national symbol of resistance to gay Christian supporters have rallied outside the lockup daily.

Mat Staver is a terrible lawyer.  Even Fox News calls him out for his stupidity:

[Fox News host Keith] Jarrett also called out Davis’s attorney [Mat Staver], who said it was “questionable” if the Supreme Court had the “constitutional authority” to rule on same-sex marriage.

“Whether the Supreme Court has constitutional authority?” the Fox News host said. “Article III Section 2 of the Constitution gives the Supreme Court constitutional authority to decide constitutional issues!”

Jarrett added that Staver’s statement appeared to be “stunningly obtuse.”

You may recall that prior to becoming a Fox News person, Keith Jarrett was THE main guy at Court TV for many many years.

Anyway, Staver is simply wrong when he says we are at square one.  Her clerks have been issuing the licenses, and will continue to do so.  In fact:

During proceedings on Thursday, Davis was offered to avoid jail if she allowed her deputies to issue the marriage licenses. She refused, and on Friday they began issuing them. The release order requires that Davis “shall not interfere in any way, directly or indirectly, with the efforts of her deputy clerks to issue marriage licenses to all legally eligible couples.” If she refuses — as she seemed to promise to do last week — she would again be held in contempt.

So basically, Davis caved.  She accepted an offer that she rejected last week.  Here’s the order:

Kentucky clerk Kim Davis ordered released from jail

UPDATE – 3:00 pm:  I suspect the lawyer is talking out of turn:

A CNN journalist at the jail reported that according to her attorneys, Davis “has not changed her mind” and intends to bring the licensing process to a halt all over again when she’s back on the job.

“The problem here is that the attorney says she has not changed her mind, that Kim Davis is adamant that as long as her name appears on those marriage licenses, she objects and she will attempt to stop those licenses from being distributed,” CNN correspondent Martin Savidge said during a live broadcast.

Well, if she “intends to bring the licensing process to a halt” then she is violating the terms of her release.  That would be VERY serious trouble for her.  Her lawyer can SAY this, but it’s easy for him to say since she will end up paying the cost.

So she’s out, and here she is with Ted Cruz and her husband, who is NOT playing Lenny in “Of Mice and Men” (that’s just the way he dresses):

UPDATE – 3:45 pm: Heaven help me….

Huckabee is on stage with her. Ted Cruz? Well, he had her picture with her (see above), but otherwise, his trip seems to be a bust.  Huckabee had staffers there a few days ago, and he has inserted himself there front and center.

Digby:

Kim Davis’ inane lawyer upon her release from jail:

“She can never recover the past six days of her life spent in an isolated jail cell.”Too bad she wasn’t free to just quit her job — the solution all the free-market wingnuts prescribe for every other complaint a worker might have against her employer. Oh wait, she was.

Huckabee Needs To Attend Just One College Level Course On The Law

As far as conservative Christians candidates go, I always thought that Mike Huckabee was a slight cut above the rest.  He doesn’t seem dogmatic, and he was governor at one time.  So you would think that he would have some sense, while also being true to his conservative principles.

But this past week he has proved to be either a guy who thinks his followers are idiots, or perhaps he is an idiot.

It’s one thing to lend support to Kim Davis, the Kentucky law clerk now in jail for contempt of court because she refuses to issue marriage licenses to same-sex couples.  But the sheer ignorance coming from Huckabee in relation to that support is amazing.

Let’s start with this Huckabee quote:

“Gavin Newsome in San Francisco as mayor, performed same-sex weddings, even though it was illegal. Did he ever get put in jail? He most certainly did not.”

Nnnnope.  Gavin defended himself:

Put another way, bans on same-sex marriage had not been adjudicated illegal, nor was their a court order telling Newsome to stop issuing same-sex marriage licenses.  Once there was a court order, he stopped.  He followed the federal court order.

Kim Davis, as Huckabee cannot seem to get through his head, is in jail for violating a federal court order on a matter that had been fully judicated.

In other words, if Newsome had continued to issue marriage licenses despite the federal court order, THEN he would be in contempt of court, and like Kim Davis, could have been fined and put in jail.

Huckabee is also one of those guys who thinks Davis is like Rosa Parks, a citizen denied her rights by the government.  In actuality, she is George Wallace standing in the doorways of the University of Alabama — someone who is acting on behalf of the government who is denying rights to citizens.

And then Huckabee also said this:

“Jeffrey Dahmer got bail, Albert DeSalvo, the Boston Strangler got bail, John Wayne Gacy got bail. Kim Davis [the Kentucky clerk], because she followed her convictions is put in jail, and is not given bail.”

Is he kidding with that remark?  Does he know what “bail” is?

It is something criminal defendants get while they are being held awaiting criminal trial.  Let’s ignore that fact that Dahmer and other serial killers didn’t get bail AFTER they were convicted.  Let’s just point out that…. Kim Davis is not getting a trial.  And she is not a criminal defendant.  Congress vested federal courts with incredible power to “punish by fine or imprisonment, or both” any individual who disobeys or resists their dictates. This is what’s known as courts’ civil contempt power, and may include orders, judgments, instructions to appear, or other rules.

It’s comparing apples to oranges.  This, I suppose, was Huckabee’s clumsy way of trying to make the point that Kim Davis is being treated worse than Jeffrey Dahmer.  What horror!!  But does anyone really buy that?  Even Davis supporters?  Davis, unlike Dahmer, can get out of jail anytime she wants to.  And she can do it without changing her beliefs.  All she has to do is (a) agree to do her job; (b) resign or (c) allow others to do her that aspect of her job.  Dahmer, on the other hand, had no control over his future.

Ted Cruz is going to visit her now in jail, too.  Prepare for more absurdity.

Meanwhile, she has filed an appeal of the contempt of court penalty.

Here’s a good read: 5 Myths About Kentucky County Clerk Kim Davis You Shouldn’t Fall For

The Brady Decision and Deflategate

The decision says that NFL commissioner Roger Goodell could not act as an impartial arbitrator.  You THINK?!?  He also says no NFL policy says players can be disciplined and suspended for awareness of others’ misconduct.

Footnote: On Twitter, the hashtag #DoYourJob relates to Kim Davis, the Kentucky law clerk who refuses to license same-sex marriages.  But with the Brady news, it’s being applied there.  Heh.

For The Black Lives Matter Files

I suspect stories like this fly under the radar an awful lot, and nobody even knows about it:

A young black man arrested by police in Portsmouth, Virginia, on the same day that one of the city’s officers fatally shot an unarmed black 18-year-old, has been found dead in jail after spending almost four months behind bars without bail for stealing groceries worth $5.

Jamycheal Mitchell, who had mental health problems, was discovered lying on the floor of his cell by guards early last Wednesday, according to authorities. While his body is still awaiting an autopsy, senior prison officials said his death was not being treated as suspicious.

“As of right now it is deemed ‘natural causes’,” Natasha Perry, the master jail officer at the Hampton Roads regional jail in Portsmouth, said of his death in an interview. Perry said there were no obvious outward signs of injury to the 24-year-old’s body.

Mitchell’s family said they believed he starved to death after refusing meals and medication at the jail, where he was being held on misdemeanour charges of petty larceny and trespassing. A clerk at Portsmouth district court said Mitchell was accused of stealing a bottle of Mountain Dew, a Snickers bar and a Zebra Cake worth a total of $5 from a 7-Eleven.

Mitchell was a chain-smoker, had bipolar disorder and schizophrenia.  None of those things, however, should have caused his death of “natural causes” at the age of 24.

Setting aside, if possible, his death (which, I am sorry, IS suspicious) why the hell is a black man in jail, without bail, for four months, for stealing $5 worth of groceries?

Fifth Circuit Strikes Down Texas Voter ID Laws

Oh, well.  Nice try, Texas — trying to prevent minorities from voting.  Among other things, the State of Texas tried to impose Voter ID laws because (they said) illegal immigrants were voting.  Of course, there was no evidence of this.  Just the opppsite — illegal immigrants (as the Fifth Circuit noted) try to AVOID government officials since the last thing they want to do is get caught.  So they’re not going to show up at the ballot box.

Texas’ new voter ID law would have hurt poor people.  21.4% of people making under $20,000 did not have a valid ID to vote. The Justice Department had argued that the Texas law, considered one of the toughest voter ID measures in the country, would prevent as many as 600,000 voters from casting a ballot because they lacked one of seven forms of approved ID.

This is a remarkable case, because the U.S. Supreme Court actually raised the standard regarding voter ID laws.  To win, the Justice Department could not just show a “discriminatory effect”, but rather, a “discriminatory intent”.  And apparently, the DOJ succeeded here.

The full opinion is below the fold.

Adventures In Police Framing

Then:

A police officer in Alabama proposed murdering a black resident and creating bogus evidence to suggest the killing was in self-defence, the Guardian has learned.

Officer Troy Middlebrooks kept his job and continues to patrol Alexander City after authorities there paid the man $35,000 to avoid being publicly sued over the incident. Middlebrooks, a veteran of the US marines, said the man “needs a god damn bullet” and allegedly referred to him as “that nigger”, after becoming frustrated that the man was not punished more harshly over a prior run-in.

***

Middlebrooks allegedly said “the police were going to pull [Bias] aside on a routine traffic stop and [Bias] would get killed”. According to the lawsuit, which has since been filed to court in a separate ongoing case against the city, this prompted the brother-in-law to retrieve a voice recorder that Bias had been carrying around with him in an attempt to monitor alleged harassment by police, and then return to the conversation with the officer.

On the recording, Middlebrooks is heard suggesting Bias had been behaving threateningly towards his relatives. The officer said if he were in the same position, he would “fucking kill that motherfucker with whatever I had in that fucking house”.

Now:

Some of the contents of Sam DuBose’s car at the time of his death have been identified.

WLWT has confirmed through CPD’s search warrant inventory document that four bags and a jar of marijuana were in Dubose’s car at the time of the July 19 traffic stop that ended in former UC Officer Ray Tensing fatally shooting DuBose.

However, multiple sources have told WLWT officers found a little less than 2 pounds of marijuana.

No officials were immediately able to confirm the amount of marijuana found.

According to reports, the marijuana was found in the car’s center console, under the front passenger seat and on the floor behind the driver’s seat.

Police sources said the street value for the amount of marijuana found in DuBose’s car is  anywhere between $2,000 and $5,000 depending on the quality and the demand.

Police said any marijuana weighing more than two pounds is considered a felony.

Officers said the search warrant was obtained two days after the deadly shooting.

What The Judge Got Wrong (And Right) On Bill Cosby

That was a real tweet from a fictional person complaining about yesterday’s big story: Greece China The Presidential Election Bill Cosby.

It’s all that the news outlets talked about:

(CNN) Bill Cosby has admitted to getting prescription Quaaludes to give to women he wanted to have sex with, newly released documents show.

The documents, dating back to 2005, stem from a civil lawsuit filed by Andrea Constand — one of the dozens of women who have publicly accused the comedian of sexual assault. The records were made public Monday after The Associated Press went to court to compel their release.

I cosbysweatthought it was old news, to be honest.  With four dozen women making these claims?  Who didn’t think he was a rapist?  I mean, even if you assume (as I do) that some of these women are just hopping on the bandwagon and making up things just to get some money… it doesn’t erase the fact that… well, there’s a friggin bandwagon of women who have the same allegations.  Of course there’s truth there.  The question hasn’t been whether Cosby is guilty of rape; the question is how many.

I’ve never been a Cosby fan, but I certainly had nothing against him.  And when the rumors first came out, I, like most people, remained neutral (and a little saddened) by the allegations.  But at some point, it reached a critical mass, and like everyone (or so I thought), I was very saddened and disgusted.  Although… as it turns out… apparently, Cosby still had his defenders.  I wasn’t aware of that.  Hopefully, they have all shut up now.

Anyway, the reason we know about Cosby — and I mean, really know — is because a sealed deposition was made public by a judge in response to a motion by the Associated Press.  And unsealing a sealed deposition, that is very unusual.  And troubling.

There are many reasons why sealed court records (and depositions) are good things that serve a public purpose.  For one thing, they allow court cases to settle.  That unclogs the courts by quite a bit.  So having things sealed from the public encourages litigants to settle their cases rather than fight it out at taxpayer expense.

Sealed court records and depositions also allow people to continue with their lives, giving them second chances.  A good example of this is the teenage drunk driver or drug user.  Many times, after serving their “time” (community service or whatever), records of their arrest and conviction are sealed so that it won’t dog them forever.  I think society is best served by this kind of compassion.

So the practice of sealing records is a good thing.  But it only works if people believe that when something is sealed, it STAYS sealed.  I mean, if sealing a record gets me to settle a lawsuit, why would I settle if I believed that some court could come along years later and UNseal it?  For that reason, it is (and should be) a high bar for a court to come along and unseal a record.

With this in mind, I read the opinion and other documents relating to the sealed record (these documents are attached to this post, under the fold)….

… and I think the judge erred in some respects.

Essentially, the media has been reporting that the judge allowed the deposition to be unsealed because Cosby was a hypocrite — his public persona as a moralist is contradicted by his testimony in which he essentially admits to giving Quaaludes to women in order to rape them.  No, I thought to myself, if only because I believe that people are neither all “white” nor all “black”.  They are not entirely villains or entirely heroes.  Very good people can do some very VERY bad things.  We are ALL contradictions.  Hopefully our “bad” is not as bad as Cosby’s.  But the judge didn’t do it because Cosby had been bad.  He did it because Cosby was being contradictory in his “persona”.

Now, I’ve heard the phrase “Hitler liked dogs and children” as a way to say, “Well if the bad outweighs the good, what difference does it make?”  And I hear that.  I don’t think that whatever good Bill Cosby did — his charity, his work in children’s education, etc. — outweighs his crimes.  I’m just saying that he’s not a hypocrite for being both GOOD and BAD; he’s human. I’m saying we shouldn’t change the legal burden for unsealing depositions simply because he’s moral in some ways and immoral (to say the least) in other ways.

I’m not the only one to think this.  Smerconish covered this as well, and here the results of his poll are at the right.Smerconish

Let me be clear lest anything think I am a Cosby defender:  The judge said that the interests of the Associated Press outweighed the privacy interests of Cosby — but NOT because Cosby was famous, and NOT because he was guilty of rape (in fact, the judge said that Cosby is innocent until proven otherwise)…. but because Cosby was being inconsistent with his morality.  That’s the core reason why Cosby was not entitled to have the deposition stay sealed.

And I am asking the reader to THINK about that reasoning behind the decision, separate and apart from the facts (and grotesque-ness) of Bill Cosby: Should a person’s privacy be invaded by the courts because that person is “morally inconsistent”?  Because that is the precedent of this decision.  And that principle, applied elsewhere (applied to YOU, dear reader) should be troubling.

Fortunately, the judge considered other factors.  And fortunately, on those factors, I think the court got it right.  For one thing, the court noted that the deposition, which was 10 years old, was under interim seal.  The court said (correctly in my view), that if Cosby was soooooo worried about his private statements in the deposition, he would have made a motion to make sure the deposition was permanently sealed a long time ago.  But Cosby and his lawyers didn’t.

So I’m okay with the outcome, although only partially okay with the rationale.

In the end, Cosby is toast and that’s the most important thing.  The truth will out, one way or another.  And once again, we are having the much needed conversation about rape.  Sadly, it doesn’t sink in.  I actually heard Gloria Allred on CNN yesterday woman-splaining to Wolf Blitzer in an annoyed voice (I’m paraphrasing): “And guess what, Wolf?  Even if a woman says yes, and then later on passes out for ANY reason, it is NOT consent and therefore it is rape!”.  And I shook my head.  Of course Allred was annoyed — here we are in the 21st century, and people STILL have to be told these things, and it blows my mind.