[NB: Updates at bottom of post. /~Rayne]

We’ve been waiting too long for this day.

Not this day:

But this day:

UPDATE-1 — 11:05 a.m. ET —

A reminder not to get too excited about tax documents being produced before November:

And Rep. Ted Lieu continues to press for expanded inherent contempt powers:

UPDATE-2 — 11:43 a.m. ET —

Could Trump be indicted by Vance’s office before November?

Fingers crossed.

UPDATE-3 — 11:58 a.m. ET —

Yup…and a specific reason why we can’t expect a speedy resolution.

This will have to work its way through the system.

UPDATE-4 — 2:08 p.m. ET —

Rep. Adam Schiff’s take on SCOTUS’ decision:

Another important SCOTUS decision today, which should not be lost to the hubbub over Trump v. Vance:

In a 5-4 decision, the Muscogee tribe of eastern Oklahoma has won in McGirt v. Oklahoma. Justice Gorsuch wrote the majority opinion.

JUSTICE GORSUCH delivered the opinion of the Court.
On the far end of the Trail of Tears was a promise. Forced to leave their ancestral lands in Georgia and Alabama, the Creek Nation received assurances that their new lands in the West would be secure forever. In exchange for ceding “all their land, East of the Mississippi river,” the U. S. government agreed by treaty that “[t]he Creek country west of the Mississippi shall be solemnly guarantied to the Creek Indians.” Treaty With the Creeks, Arts. I, XIV, Mar. 24, 1832, 7 Stat. 366, 368 (1832 Treaty). Both parties settled on boundary lines for a new and “permanent home to the whole Creek nation,” located in what is now Oklahoma. Treaty With the Creeks, preamble, Feb. 14, 1833, 7 Stat.418 (1833 Treaty). The government further promised that “[no] State or Territory [shall] ever have a right to pass laws for the government of such Indians, but they shall be allowed to govern themselves.” 1832 Treaty, Art. XIV, 7 Stat. 368.
Today we are asked whether the land these treaties promised remains an Indian reservation for purposes of federal criminal law. Because Congress has not said otherwise, we hold the government to its word.

The opinion is filled with remarkable little bites which have pointed teeth, like the first sentence in Sect. II:

Start with what should be obvious: Congress established a reservation for the Creeks. In a series of treaties, Congress not only “solemnly guarantied” the land but also “establish[ed] boundary lines which will secure a country and permanent home to the whole Creek Nation of Indians.” 1832 Treaty, Art. XIV, 7 Stat. 368; 1833 Treaty, preamble, 7 Stat. 418. …

Right there, in the text of the law, even.

And then this closing in the last graf of the majority opinion — whew, this seems like a message to another audience altogether:

…If Congress wishes to withdraw its promises, it must say so. Unlawful acts, performed long enough and with sufficient vigor, are never enough to amend the law. To hold otherwise would be to elevate the most brazen and longstanding injustices over the law, both rewarding wrong and failing those in the right.

This decision will likely result in a few death sentences being overturned, according to Sister Helen Prejean.

One might wonder at the impact on the ongoing threat to the Mashpee Reservation.

UPDATE-5 —  by Ed Walker, a very long comment

SCOTUS handed down two decisions in cases involving Trump’s tax returns: Trump v. Mazars USA, LLP, the House subpoena case, an Trump v. Vance, the New York State subpoena case. Here are some preliminary thoughts.

1. In both cases SCOTUS is forced to pretend that Trump is a normal President. This is from Vance, discussing Clinton v. Jones, the case about Clinton’s sex life.

The Court recognized that Presidents constantly face myriad demands on their attention, “some private, some political, and some as a result of official duty.” Id., at 705, n. 40. But, the Court concluded, “[w]hile such distractions may be vexing to those subjected to them, they do not ordinarily implicate constitutional . . . concerns.” Ibid.

No one thinks Trump is normal. His only time constraint is his TV schedule, and his need to spend quality time with his friends at Fox News. So, when reading these cases we have to remember that they apply to normal presidents of both parties, mostly, at least we hope so.

2. In Mazars, Roberts says that Congress can only issue subpoenas in pursuit of information needed for legislative purposes. Therefore, the only issue is whether this subpoena exceeds the authority of the House, considering that it makes demands on a different branch of government. SCOTUS makes up some considerations for balancing the need for information with the demands on the President. This makes sense in the normal run of things. As the Courts says, prior demands have been resolved without the courts. However a normal President doesn’t hide his tax returns, and doesn’t have significant business dealings with traditional enemies of the US.

This case exposes the Democrats as failures. They had information suggesting that Trump or his businesses or both had extensive business dealings with Russians, including some connected to Putin, and had reason to suspect that those relationships affected his official actions towards Russia. Two obvious points: Trump ignored and denied Russian meddling in US elections; and Mike Flynn explicit kowtowed to Putin over sanctions. Why wasn’t this the explicit rationale for the subpoena for his transactions with Deutsche Bank, which is thought to be the vehicle for those transactions. The grounds would be impeachment, which is a power solely reserved for Congress, and one in which the role of SCOTUS would be severely reduced.

This was a specific decision by Speaker Pelosi and the rest of the House Leadership Gerontocracy. Pelosi resisted demands for an investigation of the lies of the Bush/Cheney administration that led to the sickening attack on Iraq. She resisted any effort at serious investigation of Trump, and had to be forced into investigating the extortion of Ukraine.

3. The underlying problem in Mazars is the weakness of Congress. Trump and his contemptible lackeys refuse to cooperate with Congress. Bill Barr thinks the President has absolute authority, and can ignore Congress.

The Constitution provides that each house sets its own rules. Each house could easily set up its own rules about subpoenas and enforcement of subpoenas. One possibility would be that an administrative official who refused to comply with a subpoena could be held in contempt, and then that person and all underlings would lose all authority to act under any law or regulation.

4. The delay issue in Vance is similar. We’ve wasted a year on arguments that had no possibility of success except in the minds of Presidential absolutists. Now we can expect Trump to move to quash the Vance subpoena in New York state courts, starting the whole thing over. Neal Katyal disagrees; he thinks the matter can be settled quickly in New York courts. We’ll see.

5. Trump has damaged America and Americans while this case stumbled along. One obvious remedy is a law that Congressional subpoenas are deemed enforceable by Congress unless there is a final court decision within a short period, say two months. Current court rules ignore the speed with which legal matters can be handled with the internet. Legal research is easier and quicker, filing is trivial, and video-conferencing solves all travel and scheduling problems. The rest of us have had to speed up. So should Courts.

115 replies
  1. Rayne says:

    Oof. I have to say I am shocked, surprised. I really figured Kavanaugh in particular would find a way to argue Trump could keep his tax returns private.

    I still don’t trust Kavanaugh any farther than I can throw his pudgy butt.

    • Spencer Dawkins says:

      You folks are the pros, and I just read every day. I really didn’t know what to except from Gorsuch (except that he would be to the right of Merrick Garland, which I think is a valid way to look at McConnell jamming Garland’s appointment), but I definitely expected worse from Kavanaugh than he’s delivered.

      When Kavanaugh has hung with Alito and Thomas, it’s been on stuff that wasn’t “Matter of Life and Death To Trump”, is that right?

      He might remember the mutterings about impeaching him for lying under oath during confirmation hearings, and not want to do anything that would remind anyone else …

      • Rayne says:

        I dunno. I can’t help wondering if this is a massive boo-boo like Rep. Joe Kennedy III’s vote for Trump’s nuke plan. “Oh, oopsy…you like beer?”

    • timbo says:

      Neither do I. The fact is that this case was going to be decided 5-4 if they had not sided with Roberts here. I can see those two trying to secure legitimacy when it comes to what might happen to Trump officials should the Trump regime continue to stumble and finally come crashing down in 2020. Further, I should imagine that there was increasing pressure from Congress itself as to whether or not they supported the Constitution when it came to balancing the powers of the various branches. What the ruling here reinforces is that the co-equal branches are equal and no one is above the law, period. So, in a sense, those two are also siding with the idea that their own lifetime appointments are to be secured as co-equal in the grand scheme of things as well.

  2. dude says:

    We know how Trump will react in the coming days. I wonder more about how his righteous right-wing rabble will react.

    • BroD says:

      I doubt the rabble reaction will be intense–there’s no racial dimension to this. It’s not like they really care about Trump (and he knows it.)

      • dude says:

        There is a racial dimension: Obama. He is already tweeting about it….”unfair” and all that. I presume he is also trying to forge an association via Obama to Biden in the minds of his followers. Still, I hope you are right about it becoming only a low-intensity reaction rather than high.

        • ducktree says:

          And he tweets in his classic projection, like a drive-in theater, accusing those who should be pursuing the mythical Obamagate as being “too frozen with fear.” Tipping his cards at the table.

  3. PhoneInducedPinkEye says:

    Seems a Roberts special punt, “Here’s a new standard I’ll make up which we can apply based on power for D admins and dodge based on power in an R admin.”

    In the meantime congress subpoena will expire and there are SoL limitations in state of NY cases (I think?)

    Roberts has given Trump a pass while preserving the courts ability to go after a D admin.

    Good coverage


    • Spencer Dawkins says:

      1. If Trump is reelected but the Dems keep the House, I bet they’d be happy to change the dates on the subpoenas and send them again.

      2. I am not smart about criminal statutes of limitations in New York, but I was reminded that there is no statute of limitations on tax fraud civil cases. Would these financial records open any doors for investigators for those cases, as alleged in Mary Trump’s book? (asking for Maryanne Trump)

    • timbo says:

      Also, an ongoing conspiracy to obstruct might also be in the works… ya never know, right?

  4. BobCon says:

    The ruling on the House demand is ridiculous. There is no good reason why they slow walked this, and I can bet that when the mayor of West Greenbean Texas demands DNA and bone marrow samples from a Democrat about involvement in a 50 year old shoplifting case, they will fast track it.

    • PhoneInducedPinkEye says:

      West Greenbean has its problems but I think a more sunny disposition is needed, and hope for personal and political growth of future offshoots.

      Yes I agree though.

  5. dashc says:

    seems like delay, delay, delay has been the Trump tactic from the beginning with a long shot of “Presidential Immunity”. At least the concept of immunity has been shot down. Curious how this impacts Billy Barr and his Unitary / Immunity nonsense. If at all?

  6. sand says:

    It seems presidents aren’t kings. That’s great news. Otherwise that whole revolution would have been just a lot of needless violence. But the Mazars opinion, in particular, seemed to end with an awful lot of vague guidance on when and how presidents can be subpoenaed:

    1. Courts should carefully assess whether the asserted legislative purpose warrants the significant step of involving the President and his papers.
    2. Courts should insist on a subpoena no broader than reasonably necessary to support Congress’s legislative objective.
    3. Courts should be attentive to the nature of the evidence offered by Congress to establish that a subpoena advances a valid legislative purpose.
    4. Courts should be careful to assess the burdens imposed on the President by a subpoena.
    5. Other considerations may be pertinent as well; one case every two centuries does not afford enough experience for an exhaustive list.

    A lot of this seems to have been asked and answered in Mazars, though obviously not to the court’s satisfaction. Here, asking the President’s third-party accountant for his tax returns to support the legislative purpose of preventing continued presidential corruption seems to check every box very easily. These wheels of justice sure do grind slowly.

    Unrelated, I wonder what Aaron Burr would think of his current fame. He’s popping up everywhere this year. It seems Jefferson didn’t give him his Miranda rights. But Disney+ sure did.

  7. P J Evans says:

    Tax returns don’t show everything – but if you’re unwilling to show them, it makes people think you (or your spouse) have something that has to be hidden. It’s a test of honesty and openness – and Trmp has failed it repeatedly.

    • PhoneInducedPinkEye says:

      Still striking that his sister on the federal court moved up her retirement date to avoid a finances investigation that presumably could have impacted Trump

      • P J Evans says:

        I suspect that estate-division thing that Mary Trump sued over – if they did hide assets, the judge would have known.

    • Rayne says:

      We already know there’s a problem in his tax returns based on his attorney’s testimony back in March 2019. There will be fraud related to property values, taxes, and insurance claims. We probably won’t see illegal income but chances are good that further discovery will reveal disparities between business books and banking records.

      I can’t wait for the day the government can crack open the books on every goddamned Trump golf course. Fore!

      • P J Evans says:

        A forensic-accounting company might be needed to get through all of those LLCs he’s been using to hide income and ownership.

      • Hika says:

        I suspect that Manafort’s conviction for dodgy loan paperwork continues to give Trump an itch that he can’t scratch.

      • earlofhuntingdon says:

        For some reason, I’m fascinated by Trump’s golf shirts. Admittedly, their total cost would not amount to a rounding error on a typical Trump financial fraud, but it’s not insignificant. And it has tax implications for Trump.

        At a Trump course, a branded golf shirt would cost five to ten times the cost of, say, a Jethro Gibbs Carhartt t-shirt. Trump appears to pick up a handful each day. He doesn’t pay for them; they’re probably comped as lost inventory or a miscellaneous marketing expense. But aren’t they really in-kind income? That fits, too, with the fact that, while president, Trump is not supposed to hire himself out as a walking billboard. Over 365 days of golf, that’s probably over $150,000 in golf shirt income.

        If taken in a single year on a straight return, that might attract over $50,000 in tax, more than Trump pays in some years. A nit – and a pattern – probably one of hundreds in the dog’s breakfast that is Trump’s tax returns. It also highlights that his personal returns are more valuable to an auditor if you have the comparable returns for his businesses. And NY is probably best situated to get those.

        • BobCon says:

          They probably get thrown in a cardboard box marked “for charity” and go toward some kind of writeoff.

          Periodically they then get washed and put back in the giftshop as new merchandise.

          • earlofhuntingdon says:

            Never get the orange make-up out of them. They might be sold to the grounds keeper’s crew at 10% off, but that would require getting them back from Trump. Good luck with that, not when the stains illustrate his vanity.

        • Rayne says:

          Yup, could be a grift from the pro shop. But it could also be a grift if the shirts are provided from the re-election campaign, too.

          Memberships at the clubs and event fees will still be the big ticket items which deserve intense scrutiny because there may be other quid pro quos attached to them. Like Trump org expanding a class of memberships which are social only, sold to certain foreign dignitaries who coincidentally make a change in their policy or their propaganda benefiting Trump org in some way. Throw in a Trump logo polo shirt as a lagniappe.

          • earlofhuntingdon says:

            Rumor has it SDNY is still investigating Trump’s inaugural. A boatload of potential corruption there: double the money spent, but half the events of the next largest gala. If only it were true. Bill Barr seems to prefer that his high flyers twiddle their thumbs and stay below the radar until after the next inaugural – unless pursuing a Trump enemy.

      • vicks says:

        It’s been a while but I think one of the big questions remains and that is who holds/held the debt on the casinos that he declared bankruptcy on?
        Trump claimed it was all his own money that he lost, and as a result he took a ginormous tax write off that supposedly would keep him from paying taxes for years.
        People smarter than I do not believe Trump financed those casinos with his own money.
        If that’s the case it means.
        1. He committed tax fraud bigly.
        2. He lost a whole bunch of “other people’s money” and is in big time debt to whomever that is.
        I’m not sure that finding out will be as simple as looking at his taxes but it would start by taking a long had look at the year(s) he declared the losses

        • Rayne says:

          I still want to know what’s buried in the DOJ’s files with regard to Carter Page and the Buryakov case. Less about Page than the side trip taken to an unnamed Atlantic City casino. What casino and why? Was it the Taj Mahal?

          • Eureka says:

            Also, the ‘Trump Towers Everywhere’ (and their respective failures) will be key interleaves between Trump’s casino ventures and now, and how many markers (are leftover) and held by whom and all that.

        • John Lehman says:

          “2. He lost a whole bunch of “other people’s money” and is in big time debt to whomever that is.
          I’m not sure that finding out will be as simple as looking at his taxes but it would start by taking a long had look at the year(s) he declared the losses“

          Just wild speculation here,
          After many complicated layers of “borrowing from Peter to pay Paul” the debts were accumulated by Russian oligarchs who transferred them to their Godfather Putin. Putin’s ring is then transparently kissed by our Commander and Chief embarrassing our whole country.

          Sound right?

    • John Lehman says:

      Personally I’m having a seance calling forth the spirit of my great-uncle, Jacque Westrich IRS forensic accountant, who helped put Al Capone away. Perhaps Jacques’ spirit could help put these contemporary gangsters away.

      Page:Summary Report of Al Capone for the Bureau of Internal Revenue.djvu/60 – Wikisource, the free online library

      • John Lehman says:

        Oh no! Now during the seance will need to ask forgiveness for making schput (Pennsylvania Dutch/Yiddish term for “making fun of”) of the situation.

  8. PhoneInducedPinkEye says:

    Congressional investigations often start with some misconduct, scandal, or injustice, and eventually lead to legislation. The SC ruling seems to turn this process on its head – needed legislation often isn’t known in advance, but arises organically from investigations.

    • Rayne says:

      You say that like it’s a bad thing. Trump has ignored what have been norms — like presidents making their tax returns public to disclose any potential conflicts of interest before they begin work as the executive — and those norms now need codification as law because of Trump’s unwillingness to avoid the appearance of conflict. The failure to comply with a request is grounds enough to create new laws, but the ongoing refusal to comply suggests there’s worse which may require further lawmaking.

      • PhoneInducedPinkEye says:

        You are absolutely right that we need new laws, but I’m thinking of the implications for the ability of Congress to pry records out of the executive branch.

        Say congress subpoenaed a subcontractor Trump worked with many years ago because WaPo broke a story saying that subcontractor was a front for laundering funds from overseas kleptocrats.

        Congress wouldn’t necessarily know before finishing that investigation what laws need to change or be added. Would this new standard make it easier for Roberts to rule such a subpoena can’t be enforced because of a bad-faith argument that it doesn’t serve a legislative purpose?

        Either way this decision seems to strip way too much power from congress and sets up the supreme court as the ultimate arbiter of congressional oversight demands, which will vary depending on the party of the executive.

        • BobCon says:

          It’s not just the executive branch, either, it’s anyone Congress has the authority to cover with legislation.

          Think of a Voting Rights Act revision in 2021. Evidence of voter supression schemes at the state and local level tends to be hidden. Congress can’t know why minority voting in certain counties in the rural South is incredibly low without investigating first.

          But I could easily see Roberts setting up a Catch 22 — Congress can’t ask for evidence without having a specific bill to address voting rights violations in mind, but Congress also can’t write a specific voting rights bill without having specific evidence that it wants to address. Unless county elections officials voluntarily offer up evidence of discrimination, Congress would have no way to write a law which would gain the conservative Supreme Court’s approval.

        • Rayne says:

          I suspect the example you use already has ample law in place save for the claim of executive privilege by the Trump White House — and why is it this particular White House has more privilege than say the Nixon White House?

          I don’t think Congress’s powers have been suppressed very much. The way to fix that is to write more laws containing greater specificity about the executive office, the sole function of which is to execute laws. Write them in a way that Gorsuch is persuaded “it’s right there in the text.”

  9. Rugger9 says:

    This looked like an attempt by the Roberts Court to help DJT without looking like he was being helped. The timelines are important, and as noted earlier there are ways to move these cases along. My guess is that the House demand will be slow walked, but Vance’s criminal investigation would drop an indictment if the foot-dragging gets too excessive. One “October Surprise” deserves another.

    The fact that apparently all of the Justices said absolute immunity is bogus is telling, not only for the unexpected upholding of the American principle of citizenship (“all men are created equal”) but if I could speculate, it seems they also think that DJT loses in November and they want to keep Biden under some restriction. They could easily change course after the election with the remand if necessary. Let’s make sure the SCOTUS cannot change their mind.

  10. earlofhuntingdon says:

    C.J. John Roberts hasn’t much in common with former C.J. John Marshall. The reluctance by Roberts to touch the papers of a Great and Good Republican president would be irritating in a fairy tale about the lifelong search for a swordsman with six fingers. As a belief about the rights and obligations of a public employee, hired on a short-term contract, it is paralyzing to the public interest.

    The president inevitably rises from the often corrupt worlds of money and politics. Yet, s/he is hired by the public to run its most important institution – government. Disclosure and oversight – concerning the president’s tax, financial, and business interests, and her/his physical and mental health – should be the order of the day. They should not require some undefined special showing, or be made to wait until after all the damage has been done.

    • earlofhuntingdon says:

      I realize that sometimes endless argument and negotiation take place among judges, as positions, votes, and the language and stated rationale of an opinion evolve into what is finally made public. But if this is the “middle” ground that persuaded the conservative members of the court to agree on this opinion, we desperately need to reform the Supremes.

    • earlofhuntingdon says:

      What needs to be protected is less the president’s august person – that’s the language of monarchy – which is already ably provided for by a panoply of laws, procedures, institutions, and physical bodies. What needs more protection is the public interest.

      The public has a manifest need to know how well the president is protecting its interest (and is able to protect it), versus how well he might be lining his own pockets. The latter seems to be the reason Donald Trump ran for office. It’s the one thing that he put his son-in-law in charge of that he has actually succeeded at doing.

    • Spencer Dawkins says:

      Thank you for brightening my day, and I hope everyone’s day, with the Princess Bride reference. I’d SO much rather be living in that world, right now …

  11. Rugger9 says:

    OT but again a sign of how frightened the WH is: Hogan Gidley was trying to paint Joe Biden as a child molester (“…how he used to coax children up in the porch…”) in a pretty disgusting segment on Faux News. It was so offensive that the Faux host shut him down. I recall the Lincoln Project had a new ad about DJT up (“creepy Trump”) and we also saw this stuff during the Tara Reade smear where someone underage was claiming Biden made her “uncomfortable” at an event he didn’t attend. Something is cutting to the quick at the WH and with DJT who will be in full projection mode.

    • earlofhuntingdon says:

      Donald Trump to his niece, Mary, at Mar-a-Lago, when he was 50 and she was 29 and in swim suit and shorts, “Holy shit, Mary. You’re stacked.”

      It’s as if he thinks his acknowledgement that a woman excites his sexual pleasure must be her greatest thrill. Even Mad Men wouldn’t hire him.

    • FL Resister says:

      To explain Trump’s sudden interest in portraying Biden as a child molester, there is the matter of Ghislane Maxwell playing a Trump card along with, who knows, a royal flush.

      With Trump starting to bleed from the first barrage of a thousand cuts, Ghislaine is likely giving evidence on the rotten bastards who were having sex with underage girls. There are certainly enough photos of Trump with Epstein, records of their chummy times together, and enough evidence of Trump’s depravity to get to point C, Trump’s participation.

      • Rugger9 says:

        Doubtless you are correct on this detail, however I should note that this evidence is being given to AG Barr’s DOJ, who will find a way to hide the evidence.

        However, if the NYS AG decided to intervene in her own criminal investigation, perhaps some of this stuff would be aired as it needs to be.

      • John Lehman says:

        Slowly but surely wasn’t until the 1970’s, 80’s and 90’s that the US government was legally forced to start honoring 19th century fishing treaty rights with the River Peoples here in the Northwest US.
        Recent good news here, the Grande Ronde Peoples bought back their traditional fishing spot here in Oregon at the Willamette Falls.


        • John Lehman says:

          And as an unintentional shiv to our current Commander and Chief and his many looser enterprises, the Grande Ronde People financed their purchase with proceeds from their successful Spirit Mountain Casino.

  12. williamofockham says:

    Several things going on with these three cases.

    1) Creek nation – you the US government made a promise and you have to keep it. Smacks of the social effect of the whole BLM arc coming to immediate fruition. Institutionalized justice for some minorities? Who’d have thunk!
    2) Trump’s legal M.O. has always been to use the law as a weapon and to outlast the opposition with countersuits, money, appeals, and maximizing delays in the legal process. In that respect the justices said sure, we will find a way for you to try to do it again as what is truly important is we don’t want history to write that we gave tons of ammunition to anti-Trumpians before the election. One can imagine the wail if that occurred and Trump were to lose.
    3) The justices said, yeah, a President is probably is on loose ground, but we are going to give him and the Presidency a hard out, knowing it will work itself back to the Supreme Court after the election because of different and unforeseen issues that will be raised, and because that is the Trump M.O.
    4) The two subpoena cases are procedural follow-ons to the Louisiana abortion clinic case just decided. The court is saying to Vance and to Congress here is the road map. If you want to get what you want, follow the specified route and document precisely your reasons for taking the route we told you to take.
    5) The Court is doing a pretty good job of resolving a highly political issue that two political parties cannot and will not resolve between themselves. The truly great problem facing the nation is the lack of maturity/ unwillingness to compromise in the parties and the consequent all or nothing/take sides decisions being forced on the Court. Ultimately it will lead to the Court’s illegitimacy and the fall of the rule of law in the general population. As with the prohibition of alcohol, people will just ignore the decisions of the Court or only follow the ones they believe legitimate.

    Resolution of the subpoena cases are pretty much like turning an aircraft carrier around in Boston Harbor to take off into the wind. It must be done expertly, slowly, and deliberately. Otherwise lots of things get damaged for a very long time.

  13. earlofhuntingdon says:

    Gorsuch’s argument in McGirt declares that, “Unlawful acts, performed long enough and with sufficient vigor, are never enough to amend the law.” While theatrical, his argument seems to ignore contrary legal doctrines, such as adverse possession and various forms of detrimental reliance, which amend ownership and use rights, if not the law.

    • vvv says:

      I first thought of waiver and estoppel but then reread the statement and realized that he was speaking of “the law” as opposed to “the law of the case”, the former being the statutes, rules, codes, precedent, etc., and the latter being about the specific property/issue of the parties at hand, and including defenses.

    • earlofhuntingdon says:

      I read it as wordplay and simplification, a bit of theater. He makes a grand statement about the majesty of the law, while not acknowledging that it contemplates exceptions, which would be inconvenient to distinguish.

      Adverse possession is one example. It does not change property law regarding land ownership (it is part of that law.) But it does permit the courts to acknowledge a legal change in ownership, as a consequence of someone’s open, notorious, adverse, and long continuing use of land owned by another. It’s a form of estoppel.

      • earlofhuntingdon says:

        Another example would be the way banks attempted to change real property law by force of will. In the mortgage securitization frenzy preceding the Great Recession, banks succeeded in avoiding state document and property transfer rules relating to the recording of interests in land. They saved time and convenience, at the cost of billions in lost revenue to state and county governments.

        Banks systematically ignored rules they considered costly relics, but relied on them when it came time to foreclose during the crisis. That should have put their trillion dollar financial house-of-cards in jeopardy. But they bulldozed their way through the courts, which largely ignored the banks’ massive, serial violations of the law. Not a precedent conducive to Gorsuch’s argument.

        I don’t necessarily disagree with Gorsuch’s outcome. But gaps in his reasoning will be filled by opportunistic capital, not by the millions of people trying to make ends meet.

  14. rosalind says:

    finally!! Judge Sullivan is seeking a rehearing before the entire DC Circuit in the Michael Flynn case. (i’ll let one of the mods post a safe link)

  15. earlofhuntingdon says:

    About Ed’s Update 5, the Court obsesses about demands on the president’s time. It might also consider the interests implicated by those demands.

    If this president, for example – who spends several hours a day on his make-up, watching television, posting twtr messages, and taking personal phone calls – has time to deal with a state civil legal process involving a contractual dispute or defamation, he should have time to respond to claims that he has committed serial felonies, which implicate his willingness and ability to perform his constitutional obligation to faithfully enforce the law. Congress might want to inquire into that.

    Congress’s constitutional obligation to oversee and provide checks and balances on the two competing branches of government – an inherently adversarial role – requires that it seek information and “make demands on another branch of government.” Yet, Roberts seems to treat that somehow as exceptional or abbie normal, to be engaged in only in the most unusual and special circumstances.

  16. earlofhuntingdon says:

    Mildly inflammatory comments from someone familiar with this site: “If there had been “impeachment purpose” basis, the analysis by SCOTUS [in today’s decision] would have, by necessity, been different. But Pelosi, Hoyer, Jeffries and Nadler killed that basis. It is on them.” https://twitter.com/bmaz/status/1281242313465802752

    What a chickenshit load of crap [Pelosi’s statement on the Trump tax cases today] from one of the most competent and tactically proficient House Speakers in history but who has now turned into incompetent mush more worried about dead in the water Blue Dog freshmen than the Constitution and democracy. https://twitter.com/bmaz/status/1281245357976895488

    A more thorough take on Ms. Pelosi’s recent leadership: “A Leader Without Leading: Nancy Pelosi is an expert at obtaining power. But what does she want to use it for?” https://prospect.org/culture/books/nancy-pelosi-a-leader-without-leading/ Keeping her powder dry seems to have become an end in itself. Ms. Pelosi apparently struck a deal that she would give up her Speakership at the end of 2022. But assuming the Democrats control the Senate, the window for enacting serious change will be at the start of Joe Biden’s first term, not the back end of it.

    • BobCon says:

      She has twice seen catastrophic collapses of seemingly strong Democratic majorities, once under her watch, and I think they haunt her.

      I think part of her problem strategically, though, is she only looks at them as Democratic losses, rather than think about how the GOP won them. Both GOP takeovers were spurred by potent messaging campaigns. She simply cannot see how to create a theme that moves past a laundry list. Which would be fine if she was lower in the hierarchy, such as Majority Leader, but Speaker is ultimately more of a strategic leader than simply someone who corralls votes, which is her clear strong point.

      • P J Evans says:

        I got a fundraising letter from her re-election campaign today that I answered by saying that what they’re worrying about is something that *Congress* should be taking care of, and that’s *her* job. And then I hit unsubscribe.

        • P J Evans says:

          I had in mind how she allowed Neal to sit on subpoenas for months; those subpoenas were part of these cases.

      • earlofhuntingdon says:

        She has a reputation as a phenomenal fundraiser and networker. That would likely make her more aware of and interested in donor class interests than voters’, a problem for voters not unique to her. As was said of Rose Kennedy, it would be a mistake to think of her as a kindly grandmother. She is reputed to run her caucus with what le Carre would call an iron fist in an iron glove. Per DDayen, she tends to tell leftist progressives to sit in the corner and wait their turn, while being solicitous to hard right Republicans.

        One problem is that she’s still the Democrat most effective at wielding power. Schumer, for example, doesn’t seem to hold a candle to her. But she seems loathe to foster new talent, except for those through whom she wields her will. That’s gonna leave a gap (Schiff may be the gap filler) during the second half of Biden’s term, when he needs to consolidate whatever he’s done the first half, and as he and his VP set the stage for his replacement.

        If progressives want a paladin, they’ll have to raise their own.

        • BobCon says:

          The rules exist in the Democratic caucus for significant challenges, but the progressive organization has been weak. The model is the post-Watergate reformers like Henry Waxman, Mo Udall, George Miller, and probably most of all, Phil Burton who preceded Pelosi in her current seat. They unified and pushed through major political reforms and legislation over the objections of old liners.

          I think there is more support for this kind of coalition than there was 10 years ago, but I have no idea how close they are to real power.

    • Molly Pitcher says:

      I am hard pressed to identify whom would be better in her place, as Speaker, from those currently in the House ? I am not saying that there are not shortcomings, but who else would have kept this herd of cats moving in relatively the same direction ?

      Those are real questions, not rhetorical.

      • BobCon says:

        It’s a problem both parties have, and it has a lot to do with both deciding 10-20 years ago to centralize power in the office of the party leader, rather than distribute power among the committee and subcommittee leadership, leaving a serious void below top leadership.

        As a result, the kind of independent coalition building and deal making that used to happen as a committee chair tried to push legislation to the floor and beyond instead atrophied. There are few independent power bases any more, and people with the necessary skills are rare.

        There was also a tendency to recruit and fund rookies with weak leadership backgrounds. The parties seek out people who are looking to do their time and slowly climb the ladder, and not upset any hierarchies. Passion for issues is seen as a liability.

        I think there are promising newer Democrats like AOC most prominently, Katie Porter, Ted Lieu, Ayana Pressley who show a lot of promise, but there is very little chance of a serious challenge from anyone really new. I struggle to think who would replace her in the more senior ranks as anything more than a short termer.

        • Molly Pitcher says:

          And all of the people you mention lack the smoke filled room negotiating, vote counting and arm twisting (with a smile) that is required for Speaker.

          Everyone says ewwwww about those skills, but that is how the sausage is made in Washington. Being too pure to stoop to those behaviors gets you the stomach turning sight of the ridiculous hearings which were televised earlier this year. I’m looking at you Jerry Nadler.

          The GOP is not playing tiddly winks and they haven’t been since Newt Gingrich. I’m not saying they provide the template for future Democratic party behavior, but thus far they are kicking our butts. See: McConnell, Merrick Garland and the packed federal courts.

          • BobCon says:

            I am actually more encouraged by their savvy than I think they get from a lot of pundits. I am pretty struck by their understanding of where the levers of power are and how they are moved. I think they are actually better at this stage than Rahm Emanuel was when he was in the House, who had at the time a reputation for being a savvy vote counter, but turned out to be a pretty poor judge of political power.

            Which doesn’t mean they exercise the power that comes from years of favors and fundraising yet. Realistically, coalition building takes a lot of time, and of course may never break through.

            But I see signs that old power structures are cracking. I think a lot of AOC’s struggles with Pelosi are driven by NYC and state rivalries with Hakeem Jeffries, who represents the old guard Democratic coalition in NY that Pelosi is aligned with. The old guard in NY is taking some serious hits. I think Texas Democrats are another looming change, and Georgia under the leadership of Stacey Abrams is looking like it may see a serious shift.

            A key issue is whether the Democrats can learn lessons from the 2010 elections and win the power to break up GOP gerrymanders. If they can, I would not be surprised to see some pretty major changes in the Democratic rank and file and leadership. And if the recent NC redistricting fight is any indication, the GOP may find an ally in some old line Democrats, who seem to fear new districts as much as the GOP does. Hopefully, though, that kind of thinking is swept away.

            • Molly Pitcher says:

              I want you to be right, I remain skeptical until proven otherwise. I will create a new drink called “My Eating Crow Hat” and drink to your name if what you say about them comes true.

              Wow, do I sound cynical.

  17. Thomas Paine says:

    The BIG finding is in the Vance case in that the SCOTUS found that the POTUS has NO immunity or any special privilege WRT criminal process, OLC memos or any other result not withstanding. Doesn’t that mean that Vance could bring the records from the SDNY prosecution in into his Grand Jury on the Cohen case citing “Individual 1’s” involvement as the main perpetrator in bank fraud, etc., into his Grand Jury and, very quickly bring an indictment of the POTUS out prior to the obligatory 90 day quiet period before a Federal election ?

  18. earlofhuntingdon says:

    Who knew that John Roberts, in Mazars, would wax lyrically about the president personally comprising an entire branch of government: “The President is the only person who alone composes a branch of government. As a result, there is not always a clear line between his personal and official affairs.”

    More accurately, the president is the head of a branch of government, which is comprised of millions of public employees and hundreds of thousands of contractors; a Cabinet; agency, military service, and department heads – many of whom are hired only with the advice and consent of the Senate – various direct reports to the president; and the president himself.

    Nor is there small irony in Roberts’s observation that, “there is not always a clear line” between the president’s personal affairs and his public responsibilities. No president before Donald Trump has treated the executive branch as if it were his private business – to be hidden behind NDAs and squeezed for profits, like some golf course, pageant, casino, or “reality” TV show. The logical conclusion one would draw from that is to err on the side of public oversight and disclosure, rather than fence it in with a four-part, litigation-inviting “test,” which will inevitably bring the decision-making back to John Roberts’s door.

    • Rayne says:

      This country made Jimmy Carter sell his peanut farm to ensure there was a bright line between his personal and presidential business. Roberts is being a bloody hack by offering cover to a lifelong scofflaw who believes it’s okay to continue the family crime business while working for the public.

  19. Eureka says:

    Meanwhile, over on Fox tonight where they have to rustle-up Trump campaign-friendly fodder … this is hysterical. Trump got so caught up in trying to lie about Biden’s cognitive status (claiming that Biden had to have meant that he took _COVID_ tests all the time, not _cognitive_ tests all the time, because — well listen here at what the very stable genius de facto announced (with his words this time, as opposed to his general motor habitus):

    John Whitehouse: “Trump tells Hannity that he “very recently” “aced” a cognitive test: “I took it at Walter Reed, a medical center, in front of doctors, and they were very surprised” [embedded video]

    • Eureka says:

      Before continuing to an aside re Biden, it’s worth uncorking Trump’s tightly-focused framing about what constitutes “cognitive” ability. He of course eliminates the social dimension, being a narcissist +/- sociopath, and (in the clip, at least) equates such skill with passing the type of test one would need to pass so as not to require assisted living or mandate a call to Adult Protective Services. And if anyone has seen the Trump campaign’s anti-Biden blooper reel ad, well, we all know the same style ad made of Trump would take hours to broadcast (but ‘neener-neener’ battles of hypocrisy are the authoritarian’s way, and it almost* never works to strike second in that regard).

      As to Biden’s social intelligence and cognitive capabilities, I’d found these statements by people who met him at small campaign events to be positively informative: he can listen, synthesize, translate small but important details towards (another person’s) goals, etc.:

      Joe Biden’s cautious coronavirus campaign is trying to be anything but a Trump rally

      Easley said she also found him helpful. She brought up how hard it’s been keeping her store afloat during the shutdown. At the end of the meeting, after cameras stopped rolling, Biden followed up with her, suggesting several grant programs.

      “I think he handles people well,” Easley said. “He adapts to who he’s speaking with. Being a business owner in customer service, I see that’s actually what he’s doing — customer service. Being able to adapt and sympathize with people is the most important because you’re not always going to agree but you can relate.”

      Hess said she was struck by Biden’s ability to listen to people discuss an array of topics for long stretches, and then succinctly repeat back to them the crux of what they were trying to say.

      “I was… I’ll say it, babbling,” she said. “He was able to pull what I was saying into a concise statement and say it back at me so well that I said ‘Bingo,’ and pointed at him afterward, which is highly embarrassing,” she said with a laugh.

      “So that tells me he’s not only paying attention to me but his intellect is there, as some people seem to claim it’s not,” Hess added.


      But those people who have sat down with Biden lately described a tuned-in, empathetic candidate.

      “Does he fire at the speed he used to fire at?” asked Richardson. “Probably not, but older can be wiser.”

      (internal link removed)

      * take-no-prisoners ad-makers like LP could probably succeed, but they’d also probably reframe it, likely just incorporate Trump’s “intellectual” shortcomings as background to yet another problem.

    • earlofhuntingdon says:

      Trump lies about everything, especially about how other people are impressed with his brains. He’s desperate to avoid his father’s dementia, which allowed Donald, in oedipal fashion, to skin his financial life alive and take the best parts for himself. Imagine him worrying about Jared, Ivanka & Co., doing that to him.

      So, if Trump really took a credible cognitive ability test – and didn’t memorize answers to the six vetted questions ahead of time – then I agree his evaluators would have been “very surprised.” Gobsmacked, even, that the man-child before them could have even read it. But, as you say, “cognitive” tests assess a narrow range of skills. Other tests exist, but Trump would never take them.

      • bmaz says:

        Hard to imagine Trump seeing an image of a camel without trying to hump it.

        Via The Atlantic:

        “The Montreal Cognitive Assessment is a 10-minute test. It’s one of the commonly used screening exams for dementia. The questions on the test vary in difficulty, but they include:

        Six points for knowing the date and where you are.

        One point if you can identify what a train and a bicycle have in common, and another for watch and ruler.

        Three points for correctly identifying pictures of a lion, camel, and rhinoceros.

        Another point if you can repeat the phrase “I only know that John is the one to help today.”

        Another point if you can read the following letters: FBACMNAAJKLBAFAKDEAAAJAMOFAAB.

        Three points if you can draw a clock that indicates the time “10 past 11.”

        • earlofhuntingdon says:

          Seems like a fairly low bar for the president of the United States. But then Trump, like any CEO, defines what he can do as all that needs to be done.

        • vvv says:

          I kinda imagined a cognitive test for him, goes like this:

          “Do you know your name?

          Where you are?

          The time?

          The date?

          That many of us hope you end up in prison?”

  20. Molly Pitcher says:

    From this morning NYT via Politico:

    – NYT: “DeSantis Is Said to Quietly Hinder Fund-Raising for Trump Convention”: “[Gov. Ron] DeSantis, a Republican, has directed his top fund-raiser, Heather Barker, to tell donors not to give to the convention because of a personal dispute between the governor and Susie Wiles, his former campaign manager who is serving as an informal adviser to the convention planners, according to multiple people familiar with his actions.

    “Ms. Wiles is a veteran Republican operative who led Mr. Trump’s Florida team in 2016 and who ran Mr. DeSantis’s 2018 campaign for governor. Mr. DeSantis’s relationship with Ms. Wiles soured over his suspicion that she had leaked embarrassing information.”

  21. Bay State Librul says:

    Did Alito really say “The President never sleeps or did I dream it?
    These decisions are like a law school graduate’s watered down martini.
    Fuck, fuck, fuck.
    More fucking bullshit.
    The decisions are full of colorful words and phrases, sent back to the courts for more made up shit.
    It never ends.
    I want a 9-0 decision that Trump at noon today, must turn over his berserky-filled, impure, four-flushing financial statements.
    I want Deutsche Bank de-banked.
    I want his accounting firm de-accounted.
    I want his legal team disbarred.
    Is that too much to ask after 3 and one half years of crimes.

  22. earlofhuntingdon says:

    As Marcy says, if Donald Trump is tossed out in November, he will make sure no one can run the country. It’s because he’s the same kid who ripped up the game board when he lost, and a slightly older version of the teen, who told everyone the girl who turned him down for a date was a harlot no one would want to date.

    He will do it in pieces, as the opportunities present themselves, the way a CEO fires half his employees when an unrelated crisis hits – to cover for what he intended to do anyway. Today, Trump rages that he will have Treasury revisit the tax exempt status of colleges and universities, because they don’t teach, they indoctrinate students with leftist dogma. (A Republican theme for the rubes that must go back to Lee Atwater.)

    Trump’s rage is another abuse of power, probably intended to put more pressure on schools and colleges to reopen in the fall, to help his doomed campaign. Putting a million kids at risk of sickness or death? Meh.


    • Molly Pitcher says:

      Well, he is going to be really cranky now. According to the WaPo:

      Trump delays New Hampshire rally scheduled for Saturday because of weather, White House press secretary Kayleigh McEnany told reporters Friday that there is a “big storm” expected in Portsmouth, N.H., where President Trump was scheduled to hold a rally Saturday night. She said the rally would be delayed by a “week or two.”

      Trump came under criticism for holding a rally in Tulsa last month during a pandemic, with critics arguing the event could have helped spread the coronavirus in the state.
      The president was enthusiastic about the rally Friday morning.

      “We’re going to have a big crowd and we’re going to have a great crowd,” the president declared in a radio interview on “New Hampshire Today With Jack Heath.”

    • MB says:

      And he needs to look no further than the precedent set in Wisconsin after the 2018 elections. Republican state legislators passed laws restricting the powers of incoming Gov. Tony Evers during the lame-duck period. It was appealed to the Wisconsin Supreme Court (remember their ruling about the recent Wisconsin primary elections this year?) who decided that that GOP legislators were within their rights to do just that and the restrictions against Gov. Evers still stand…

    • earlofhuntingdon says:

      Trump’s attack on colleges and universities is from an old GOP playbook. It does go back to Lee Atwater and the era of the Kent State murders. In fact, it goes back to Reagan’s sustained attack on the University of California in the mid-1960s, a culture war artifact he used to launch his presidential ambitions.

      The GOP defended against the social changes demanded in the 1960s by saying, in effect, that only leftists and outside agitators wanted them – not real ‘murrikens. That would come as a surprise to millions. The defund the universities gambit goes back to the same era. Trump’s attack on their tax-exempt status – a non-starter – is putting old rubber on a tired car.

      The defund the universities program led to massive increases in tuition for in-state students, cutting off access to higher education for many – one of the main engines in America’s post-WWII recovery. (Unless you went to war and earned GI Bill privileges – go figure.) It also led to the virtual privatization of other programs, such as Ohio state’s top-ranked Miami University. Along with that virtual privatization came a significant drop in diversity. Go figure.

      It’s all part of the Magic of the Market, and the neoliberal revolt against a modernity that threatened to empower average Americans. One outcome was to freeze real wages for most Americans, with the profits from massive productivity gains being redirected to those at the top. Their incomes and wealthy have skyrocketed.

  23. milestogo says:

    More good news.

    “O R D E R

    Upon consideration of the petition for rehearing en banc, it is, on the court’s own motion,

    ORDERED that, within 10 days of the date of this order, petitioner file a response to the petition for rehearing en banc…”

    It looks like the DC Circuit US Court of Appeals has stayed its decision while the entire en banc panel of appellate judges considers the issues.

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