What If the Special Counsel Is about Scott Perry, not Just Donald Trump?

When he announced the appointment of a Special Counsel yesterday, Merrick Garland described that “recent developments,” plural, led him to conclude that he should appoint Jack Smith as Special Counsel to oversee the investigations into Donald Trump.

The Department of Justice has long recognized that in certain extraordinary cases, it is in the public interest to appoint a special prosecutor to independently manage an investigation and prosecution.

Based on recent developments, including the former President’s announcement that he is a candidate for President in the next election, and the sitting President’s stated intention to be a candidate as well, I have concluded that it is in the public interest to appoint a Special Counsel.

The recent developments he focused on were presidential: Trump’s announcement he’d run again and Joe Biden’s stated plan to run for reelection. But he also described the basis for the appointment not as a conflict (as Republicans and Trump are describing the investigation by a Biden appointee by his chief rival), but as an extraordinary circumstance.

Unsurprisingly, Garland never named Trump as the reason for the appointment. The only time he referenced Trump, he referred to him as the former President. That’s DOJ policy.

When he described the subjects of the January 6 investigation, he included both “any person” but also any “entity” that interfered in the transfer of power.

The first, as described in court filings in the District of Columbia, is the investigation into whether any person or entity unlawfully interfered with the transfer of power following the 2020 presidential election or the certification of the Electoral College vote held on or about January 6, 2021.

The scope of the January 6 investigation that Smith will oversee is far broader than Trump and will almost certainly lead to the indictment of multiple people in addition to Trump, if it does include Trump — people like Jeffrey Clark, John Eastman, possibly Mark Meadows.

But if we assume that everyone who has had their phone seized in that investigation is a subject of it, then Scott Perry, the Chair of the House Freedom [sic] Caucus, would also be included. Perry was the one who suggested that Trump replace Jeffrey Rosen with Jeffrey Clark so DOJ would endorse Trump’s challenges to the election outcome. He pushed a number of conspiracy theories at the White House and DOJ (including the whack Italian one). Along with Meadows and Rudy Giuliani, Perry was putting together plans for Trump to come to the Capitol on January 6. After one meeting with Perry, Meadows burned some papers.

Perry isn’t even the only one who was closely involved in the plot to steal the election. Jim Jordan, the incoming Chair of the House Judiciary Committee, was closely involved as well and is very close to likely subject Mark Meadows.

Indeed, if you include all the members of Congress who discussed or asked for pardons, the number grows longer, in addition to Perry, including at least Matt Gaetz, Andy Biggs, Louie Gohmert, and Marjorie Taylor Greene. Jordan, Perry, Gaetz, Biggs, Gohmert, and Marge would amount to most of the probable seven person majority in the House.

Marge, as it turns out, is already dreaming up ways to defund this investigation (the means by which she wants to do this, the Holman Rule, probably wouldn’t work; I believe there’s a preauthorized fund from which Special Counsel expenses come from).

To be clear, thus far, Perry is the only one whose actions have overtly been the focus of legal process, when the FBI seized his phone back in August. It’s certainly possible DOJ did so only to get content, such as Signal texts, that implicate someone else, like Clark.

But given how close the majority in Congress is, any prosecution of a Republican member would threaten to disrupt that majority. Which means any investigation into Republican members of Congress would pose a more immediate threat to the current status quo than a Trump prosecution would.

Jack Smith’s background — including a stint heading DOJ’s Public Integrity Division during the period when Congressman Rick Renzi was prosecuted — is more suited for the January 6 investigation than the stolen document one. Including, as it turns out, the difficulties of prosecuting someone protected by the Speech and Debate clause.

118 replies
  1. Peterr says:

    And for the record, Renzi was *successfully* prosecuted and served 23 months in a federal prison in West Virginia.

    Also for the record, when word that Renzi was being investigated reached certain ears, the US Attorney in Arizona was added to the list of USAs to be dismissed by Alberto Gonzales, Kyle Sampson, and Karl Rove. But Charlton’s removal didn’t shut down the investigation, and Renzi went to prison anyway.

    Also for the record, Trump expunged Renzi’s guilt with a pardon, but Trump couldn’t give back the time Renzi spent in WV.

    • flounder says:

      I am dismayed that Democrats have never highlighted Trump’s pardons for pretty much every crooked politician from the last two decades. I mean people absolutely hate corrupt politicians and using this scandalous use of pardons politically should be low hanging fruit. I’ve never heard a Trump supporter have to justify his pardon of Chris Collins, Renzi, etc.

    • GWPDA says:

      To be fair, prosecuting politicians for various forms of fraud and corrupt land deals is pretty ordinary out here in Arizona. The Keating 5 come to mind, the collapse of the savings and loan industry – it’s sort of our deal. Still, catching and convicting Rick Renzi was counted a very good thing. The former Maricopa County Assessor Paul Petersen finally started serving his 15 years for corrupt practices involving the Marshall Islands adoption scam which was certainly vivid. J. Fife Symington, AZ Governor, was charged with defrauding his lenders as a commercial real estate developer, extorting a pension fund and perjuring himself in a bankruptcy hearing and was convicted of 7 counts of bank fraud – which was later ‘overturned’ and he received his own pardon from Bill Clinton. And then, there was AZScam, which resulted in most of the State Leg being charged with various kinds of fraud. I still miss Chuy Higuera, the only visibly Mayan member of the AZ Legislature. Anyway, we’re not easily shocked by politicians committing fraud.

  2. DavidA says:

    I’m convinced. The details all fit, and the final nail is Jack Smith’s experience with the speech and debate clause.

    Now we wait 6 months for the rest of the media to figure it out.

      • Lady4Real says:


        I wondered whether Marge was just scared as hell with all the bluster she can muster.

        Gaetz also planted a story in WAPO conveniently before the midterms about how DOJ was just going to let him go because, integrity of witnesses, something, something.

  3. harpie says:

    [I am reposting a comment I made at the last post.]

    The House “Freedom” Caucus is an imminent danger to our democracy.

    They met on 12/21/20 at the WHITE HOUSE to strategize about 1/6/21.
    TRUMP, MEADOWS and PENCE were there, too.

    On 1/11/21, TRUMP gave JORDAN the Presidential Medal of Freedom
    in a closed ceremony at the White House. WHY?

    From PENCE’s book:
    12/21/20 [Mtg at WH] [JORDAN leads “lawmakers in a discussion about plans to bring objections. I promised that all properly submitted objections would be recognized and fully debated.”]

    People we know were there:
    Trump, Pence, Meadows, Jordan, [House Freedom Caucus], Perry, Brooks, Hice, Biggs, Greene [who hasn’t been sworn in yet]

    More about the Freedom Caucus/these people at the comment,
    including info on the timing of Cassidy HUTCHINSON’s work with some of them.

    MEADOWS connects them with CPI,
    Conservative Partnership Institute and Cleta MITCHELL.

    • harpie says:

      – 2013-2020 MEADOWS reps NC – 11 in Congress; Tea Party Republican; Founding member of the Freedom Caucus, which he chaired from 2017-2019
      – 2019 Cassidy HUTCHINSON works for Whip SCALISE and CRUZ
      – 2019- 3/30/20 HUTCHINSON works in WH Legislative Affairs Office
      – 3/31/20 MEADOWS resigns from Congress; becomes TRUMP WH Chief of Staff [COS] and HUTCHINSON becomes his principle aide

      House Freedom Caucus [Chairs] https://en.wikipedia.org/wiki/Freedom_Caucus []
      JORDAN 2/11/2015 > 1/3/17
      MEADOWS 1/3/17 > 10-1-19
      Andy BIGGS 10/1/19 > 1/1/22
      Scott PERRY 1/1/22 > [current] [<<< NOTE!]

      [JORDAN is currently Deputy CHAIR;
      TRUMP gave him the Presidential Medal of Freedom on 1/11/21]

    • harpie says:

      I wish I had thought to write:

      MEADOWS connects the “Freedom Caucus” ENTITY
      with CPI, Conservative Partnership Institute ENTITY, and Cleta MITCHELL

      • harpie says:

        And here is Jane Mayer on 6/23/22,
        the day CLARK’s home in Va was searched by Federal Agents,
        about the related ENTITY, The Center for Renewing America:

        6:29 PM · Jun 23, 2022

        The Center for Renewing America – Jeffrey Clark’s employer- is a project of the Conservative Partnership Institute– run by Mark Meadows, Cleta Mitchell, Jim DeMint, and funded in part by Trump’s leadership PAC.

        • Midtowngirl says:

          While we’re looking at various *entities* and the ties between them, it is also useful to look at Trump’s short-lived Presidential Advisory Commission on Election Integrity (May 2017 – Jan 2018), whose members included:

          Kris Kobach, former Secretary of State of Kansas, was just elected Attorney General in Kansas. Has a long record of maintaining voter restriction (and anti-abortion) policies.

          Ken Blackwell, former Ohio Secretary of State and previously state Treasurer, is associated with the Family Research Council. Has close ties to Ginni Thomas.

          J. Christian Adams, Appointed commissioner by Trump in August 2020 to the US Commission on Civil Rights. President and founder of the Public Interest Legal Foundation, a far-right voter suppression organization.

          Public Interest Legal Foundation’s current Board of Directors:
          J. Christian Adams, President
          Cleta Mitchell, Chairman
          Ken Blackwell, Treasurer
          William E. Davis, Director
          David A. Norcross, Director
          Brad Schlozman, Director
          Hans von Spakovsky, Director
          Clara Belle Wheeler, Director

          Recently removed from PILF’s Board: John Eastman

          Almost all of the above also have ties to the extreme-right Council for National Policy, with Cleta Mitchell and J. Christian Adams serving on CNP’s Governing Board as recently as September of last year.

          In November of last year, Cleta Mitchell was appointed to the advisory board of the federal Election Assistance Commission by the US Commission on Civil Rights after being nominated by (you guessed it) J. Christian Adams.

          This isn’t conspiracy theory – it’s conspiracy fact, and it runs deep.

        • harpie says:

          THANKS for all of that, Midtowngirl!

          And, yes, Rayne, LOL!

          Recently I’ve taken to calling
          this mob of People and Entities the Fascist Blob.

        • Konny_2022 says:

          Ah, this infamous presidential commission of the early months! I remember that is was dissolved before it had a full meeting because a Democratic member had to sue to be included in conversations (then-Secretary of State for Maine). Kobach wanted to get voter information from all states through the respective secretaries of state. Back then even some Republican SoS repudiated this attempt to build a nation-wide data base for Trump. I liked the reaction of Delbert Hoseman (R-Miss.) so much that I’ve kept the quote: “They [Kobach and allies] can go jump in the Gulf of Mexico and Mississippi is a great state to launch from.” (Still available at https://mississippitoday.org/2017/06/30/hosemann-on-trump-voter-id-request-go-jump-in-the-gulf/.) Although a federal judge cleared the way for the intended data collection, only few states complied with the request prior to the abandonment of the commission.

        • gknight says:

          We cannot forget Senator Grassley’s statement on J5: “We don’t expect him to be there”. Spoken in reference to VP Pence on J6 counting of the certified electors. He also referenced the objections to come, and that the election could be decided in the House.

  4. Hugo says:

    The point you made in the previous post about getting the investigation beyond the reach of Jim Jordan seems pretty salient too.

  5. Sally Jane says:

    You left out the kicker — Trump pardoned Renzi on his last full day in office. Didn’t know that until I looked up Renzi for more about him.

  6. PeterL says:

    For some reason this post brings a smile to my face – just the thought that this appointment may also point to those Congressional miscreants being held accountable is a lovely thing. As always, thanks for the insights and analysis. This site continues to be one of the very best!

  7. EG says:

    Who is responsible for enforcing the part of the Constitution that says that insurrectionists can’t hold public office? It seems that if this were enforced, the Republicans would lose their House majority in five seconds, and a lot of creepy senators would be shown the door. Who is responsible for enforcing the law? Why isn’t it being enforced now? Could this new special counsel throw these bums out?

    • Ravenclaw says:

      I’m not sure who is supposed to enforce the law (other than refusing to swear such people into office in the first place), but since no member of Congress or other elected official has, to my knowledge, been convicted of sedition (yet), the issue seems chiefly theoretical (for now). Should such a conviction eventuate, it would of course become one of critical import.

    • pH unbalanced says:

      So the group Free Speech for People helped put together some lawsuits against several members of Congress involved in the January 6 insurrection at the state level. The most successful of those was against Madison Cawthorn in NC, but it was somewhat rendered moot when he lost his primary. Kind of the way everything ended up is that the concept of a 14th Amendment insurrection challenge is viable, but no one was proven to be an insurrectionist to the satisfaction of the appropriate Boards of Election.

      But as far as who would bring these lawsuits, it would be done at the state level under state rules and are challenges to eligibility just the same as if they lived out of state or were under the minimum age to hold the office.

      • Ravenclaw says:

        Thanks for that. I *think* there could also be a challenge to someone who had been elected, whether a refusal to seat the person as a member or some other mechanism. After all, the amendment was passed to keep C.S.A. rebels out, and many of them could easily have passed muster with their home state crowds.

    • Dave_MB says:

      If they don’t voluntary leave office, then you have to take them to court to enforce the provision. I think there’s a legitimate question on whether non-involved Congressmen who voted against the certification committed sedition. There’s a history of protest votes since 2000.

    • Rugger_9 says:

      I have no doubt that defense will be raised, setting up a Constitutional showdown about how far the S&D clause protection can be carried. Plotting an insurrection against the government is not part of any legislative duty but IMHO the counter argument would be that Biden’s election was illegitimate and therefore he wasn’t the government in this sense. I think a couple of the J6 defendants have tried it.

      • Willis Warren says:

        “I thought I was defending democracy” is a horse shit defense, though. I seriously doubt that the SoD clause applies to the insurrection. I’ve no doubt that Republicans will threaten to investigate dems going forward and the whole thing will get buried in bullshit

      • Peterr says:

        I think the 14th Amendment might come into play on that account:

        No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.

        This implies some kind of conviction of engaging in insurrection, whether in criminal courts or in an impeachment trial. But still, the 14th amendment is clear that insurrection is not something to be tolerated, and so using the S&D clause to excuse speech that supports insurrection would be incompatible with the constitution.

        • Willis Warren says:

          That seems to be the reason for the SC, the S&D clause and how to get around it. Jack Smith seems like a pretty good pick, the more I look at this. I hope but doubt it will be this easy to exclude the clause. I’m not sure how it would work, the grand jury would have to be convinced, which seems easy enough… but a real trial would be a circus

  8. obsessed says:

    This is pure catnip. And it would certainly explain the need for a special counsel. Trump’s guilt is so painfully obvious that no one can avoid knowing the details of his crimes even if they still support him, but if the evidence leads to House GOP it would be too easy for the echo machine to paint Garland as a partisan extremist. So here we go again: Fitz, Fishman, Mueller … fourth time’s a charm? Fortieth time? And they likely had something fairly big to warrant seizing Perry’s phone, right?

  9. Sue Sanders says:

    I may be getting a wee bit cynical, but wouldn’t this also solve internal leaking problems as a case unfolds? The USSS, FBI, etc. clearly had (have?) motivated MAGA types. It also might wall-off enough that the J6 feels able to share everything it has.

  10. jeco says:

    Hopefully the Scott Perry phone will document links to many co-conspirators in House and this possibility really makes Spec Couns a necessity. We all suspect that the Freedom Caucus/teabaggers are an anti democracy cabal but if they can be legally charged (in addition to trump) I think we’ll be facing some real political violence. Only 2 post Civil War reps have been forced out, both for fin crimes, Trficant and Meyers – both Ds. Getting a batch of GOP reps for trying to stop the peaceful transfer of power really elevates them to the Civil War era traitors

    Maybe Freedom Caucus will make the big time as a domestic terrorist organization.

    • Norskeflamthrower says:

      “…if they can be legally charged (in addition to Trump) I think we’ll be facing some real political violence.”
      I beg to differ, we’ve already seen real political violence from 11/20 through 12/06 culminating in 10,000 frightened meatballs attacking the capitol under the organized leadership of the fascists’ “best and brightest”. And we’ve been experiencing increasing individual lethal political violence since 2017. We hafta get a grip. The committed neo-nazis make up a VERY small percentage of the voting population whose small numbers have been artificially enlarged by millions of black money dollars and elected leaders Gerrymandered into office. Follow the seditious conspiracy trial and look at those “best and brightest” when they realize they face 20 years in prison. I’ve been saying for a few years now that the only thing that can save the fascists is a military takeover and I’m not sure they can pull that off now that the charade has been exposed. We will continue to see violence but the organized and armed attacks will be fewer and fewer while individual nut cases will increase.

      • jeco says:

        Hi, I wasn’t minimizing the significance of Jan6, the Witmer kidnapping plot or the Pelosi hammer attack I just think that if a half dozen Freedom caucus yahoos get perp walked in addition to St Donald getting pulled down for a half dozen different felonies we’ll start seeing wildcat political violence breaking out. Does anybody doubt trump will try to marshal supporters to disrupt his criminal trials and intimidate jurors? Look at what he’s done to the two GA poll workers.

  11. Germane1 says:

    It appears to me Scott Perry has deliberately misrepresented his relationship with Jeffrey Clark in order to conceal relevant information about his own malfeasance and that of others. On January 21, 2021, Perry stated he had worked with Clark “over the last four years on various legislative matters”. However, Clark’s official DOJ profile at the time said he had been in private practice at Kirkland & Ellis from 2015-2018. The profile also stated Clark became AG of the Environmental and Natural Resources Division on November 15, 2018, and became Acting Assistant AG for the Civil Division on September 3, 2020. Perry is and was on the Transportation & Infrastructure Committee and Foreign Affairs Committee. Since he represents my District, I wrote him and pointed out the above discrepancy, and asked him for an explanation of exactly what legislative matters he had supposedly been working on with a person who had been in private practice for almost two out of the previous four years, and whose role at DOJ did not appear have any obvious connection (at least, not obvious to me) with Perry’s committee work. Unsurprisingly, he never responded. It would be satisfying if he were required to honestly explain his real relationship with Jeffrey Clark. It could be interesting and revealing.

    [Thanks for updating your username to meet the 8 letter minimum. /~Rayne]

    • 4Emilias says:

      Germane1, I too am “represented” by Scott Perry. Good luck getting answers from him. As a constituent, I sent an email asking for his rationale for blocking Ukraine funding; like you, I heard nothing back, so I forwarded it again the next week, and the next etc., adding a new note on top each time. After two months, much to my surprise, I did get a response. A response full of big words and hot air. Oh yes, it was also chock full of platitudes about “patriotism”. They even sent a hard copy via snail mail! Granted, there still wasn’t a coherent explanation for his “no” vote, but if I were “poorly educated”, and not offended by the condescension dripping off it, it might’ve worked. He thinks he’s the smartest person in the room, and I hope Smith and/or DOJ teach him a lesson in humility – and patriotism. Couldn’t happen to a “nicer guy”.

      • Peterr says:

        If you really want a response, call them.

        Call their office in DC, and call the local office as well. Speak politely, and force a staffer to listen to you and your concerns.

        Then go in to the local office, and chat with them face to face.

        It’s easy to blow off an email, but harder to do so over the phone, and even harder when someone is standing in your office in person.

    • Desider says:

      Maybe bring it to Jason Leopold’s attention for a possible FOIA, assuming he’s still doing those in his new role.

    • nedu says:

      Your question is phrased badly. Due to awkward words, it potentially expands to too many distinct cases for any answer to fit comfortably in a single comment within this discussion.

      So let’s rephrase — Does felony conviction of a member of Congress during his term work to remove him from that body?

      The almost-misleadingly short answer to this is, ‘No’. Under existing precedent, a felony conviction of a member of Congress does not automatically invoke the Art. I § 5 Cl. 2 power—

      Each House may… with the concurrence of two thirds, expel a member.

      The longer answer, though, is that while not automatic, it’s still nevertheless likely that a member convicted during a congressional term would face a vote for expulsion. See the CRS report Expulsion of Members of Congress: Legal Authority and Historical Practice (R45078).

      Note that I didn’t adress here the case where someone with a felony conviction is subsequently elected to Congress. For that, see the CRS report Qualifications of Members of Congress (R41946).

      • PeteT0323 says:

        How might a felony conviction involving incarceration be handled? Is the incarceration deferred until such time…? Can a felony convicted still serving Congressperson be incarcerated for said crime while still “in office”?

        • nedu says:

          To sharpen this, it may be worth remembering that back in Blackstone’s era, he himself admitted—

          The idea of felony is indeed so generally connected with that of capital punishment, that we find it hard to separate them

          Further, according to Bradley Chapin (p.6 in PDF)—

          Americans certainly did not hurry to embrace felony law reform during the period of constitution-making

          Imagine — a member of Congress murders someone in broad daylight on Fifth Avenue — gets speedy trial, conviction, and swift sentence to hang.

          Might make some trouble for ’em to vote.

          But that would be a different case indeed, I deem, than any currently contemplated against any member of the upcoming 118th Congress, in these modern times.

          The old precedents only go so far.

    • tje.esq@23 says:

      No. Any removal occurs under each chamber’s rules, determined by its membership. Meaning only members can expel other members.

      Article 1, Section 5 of the U.S. Constitution says, “Each House shall be the Judge of the … Qualifications of its own Members[.] … Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behaviour, and, with the Concurrence of two thirds, expel a Member.”

      Article 1, Section 6 (Speech and Debate Clause which is cited above) discusses allowable arrests for specific offenses (“Treason, Felony and Breach of the Peace,”) and prohibits dual membership,* but is silent on any punishment or removal for such “offenses.”*

      By norm and historical practice, most conferences (“Republican Mxxority” or Democratic Mxxority”) require suspension of committee membership upon criminal indictment, and resignation from Congress upon criminal conviction (includes plea bargain or trial judgment). Norms evolve, however, and new rules for each chamber are established with each new Congress (convened Jan. 3 of every odd numbered year.) New rules for Congress’ next session, which may or may not address terms of removal, will be passed after swearing in of the 118th Congress on Jan. 3, 2023. Republicans approved their congestion-causing, stalemate-inducing rules package earlier this week and will offer it up for vote just after swearing in next year. This new rules package will make up the entirety of the House of Representatives’ rules for 118th Congress if at least 218 members vote in favor (basically, their entire caucus).


      * Members serving in one house may not also serve concurrently in the other house, nor concurrently hold “any Office under the United States” or be appointed to “any civil Office under the Authority of the United States.”

  12. jdmckay8 says:

    Over (especially) last year or so of Trump’s presidency, until now… I often wonder if it is possible to release the work product of McCain’s Abramhoff investigation? This was supposed to be work “for the People”, right? I’m sure most here remember how thoroughly Abramhoff’s influence had tentacles throughout the Republican party, almost incomprehensible grift, most of which has been withheld from the public.

    Seems to me not doing this then allowed for the same corrupt behavior to continue, I think become even more brazen now then with Abramhoff. I think the public should see that report. What is the point of waiting 50 years, other then everyone involved will probably be dead?

    I appreciate your (Marcy) tireless, detailed writing on all this stuff.

    (added “8” to comply with your 8 character UN minimum)

    [Thanks for updating your username to meet the 8 letter minimum. /~Rayne]

  13. Randy Baker says:

    I was concerned that appointing a special counsel would unnecessarily slow the whole thing down, assuming it was headed in the right direction anyhow. But, particularly in light of the reason to think R Congressmen have exposure, and the several pardon requests indicate that is entirely possible, and the narrow R House majority, I think special counsel was an excellent idea. And it does seem this fellow is serious. I especially like his quote to the effect that if he wasn’t willing to prosecute cases that he potentially could lose, he needed to get into a different business. Rich and/or powerful white guys who commit crimes rarely offer up slam dunk cases.

    • Nick Caraway says:

      I think it was Chuck Rosenberg who said yesterday on MSNBC that appointing the Special Counsel will not slow things down very much. According to Rosenberg, DOJ staff who have been working these investigations will now report to the Special Counsel instead of the DOJ division heads; no need to restart from scratch. Meanwhile if Mr. Smith is as capable as everyone says that he is, he won’t need that much time to get up to speed.

      • Peterr says:

        Jill Wine-Banks, who served as a Watergate prosecutor, noted that their investigation hardly slowed down at all after Archibald Cox was canned on the Saturday Night Massacre and Leon Jaworski took over. The continuity of the staff kept things rolling right along.

  14. Bay State Librul says:

    So, assume for a moment that Trump is indicted and convicted. Can Trump then appeal to the Supreme Court and argue that for some fucking inane reason (to be made up by Trump’s lawyers) that the whole process is unconstitutional?

    I don’t trust the Supreme Court — that’s my concern.

    • hester says:

      “I don’t trust the Supreme Court — that’s my concern.”

      I don’t either. But I don’t think the CJ or even Gorsuch / Kavanaugh would go to bat for such unseemly scum. More presentable scum, perhaps… but not this oleaginous carnival barker.

      • Rayne says:

        They don’t have to “go to bat for such unseemly scum.” They only have to find reason they can’t support the outcome of a prosecution. We already know one of them will refuse to recuse himself in spite of a conflict of interest, and another will even consider prosecution of witches by then-English jurists more than 200 years ago to find justification for their decision.

        It took the leak of the Dobbs decision before that last bit was stripped out of the final decision. And it’s already too late wrt Thomas’s recusal on matters in which he has a conflict.

        • Tom E Stickler says:

          At the time of the Dobbs leak, I recalled the usual anti-abortion legislator’s strategy of enacting slipshod bills, confident that they would be challenged, and thus could be improved for passage next session. The Dobbs draft was leaked for the same reason.

        • tje.esq@23 says:

          Rayne –

          When I read the leaked draft, I was indeed appalled that Alito’s history of America’s common law roots not only examined the type of ban not in-issue before the court (Dobb’s was pre-viability ban; British common law involved post-viability — after quickening– bans) it also cited 17th century witch-prosecutor-and-advocate-for-witch-execution, Sir Edward Coke. But this material is still in the final draft. Sir Edward Coke is cited on Slip opinion page 13, footnote 2, page 17, twice on page 26, and page 48, and discussed on page 13 FN 2 of Justice Breyer’s dissent. Are you referring to other text that was cut from leaked that didn’t make the final? I’m sure I missed something. Or perhaps I am misreading your post.

          NYTimes had a story today, not on Dobbs leak, but on 2014 Hobby Lobby case leak, one not previously identified or reported on before today. Source was famous anti-abortion activist Rev. Schenck who said he felt it was his duty to report the 2014 3-week-in-advance leak to Chief Justice Roberts as he undertook the Dobbs’ leak investigation because it was relevant background. The story peaks inside the secretive door of conservative justice lobbying by various special interest groups — very eye-opening read.

          And, most importantly, it reveals that ALITO himself was the Hobby Lobby leaker.


        • Rayne says:

          I was referring to the cut material. Everything about the conservatives’ work on Dobbs was awful but Alito’s work sucked the most.

          And yeah, Alito as the Hobby Lobby leaker. He’s malignantly proud of himself.

        • Rugger_9 says:

          Something Big to talk about… although this morning’s Chronicle had no article about the Bears roaring back from down 17-6 to win 27-20 even if Stanford’s Karty kicked a 61 yard FG on the last play. That might be a record, and the game finished around 7 PM. Yet, not a peep in the Chron. It was only a milestone Big Game (125) and the 40th anniversary of The Play (where I was doing field security at the 20 in that corner, the look on the Stanford sections’ faces was like a Warhol painting and one of the best things I’ve ever seen).

          If one ever wondered why traditional media is dying this is a pretty good example of how out of touch they’ve become.

    • emptywheel says:

      This kind of Special Counsel appointment has been appealed a bunch of times, most recently under Mueller, all the way to SCOTUS (when Stone’s flunky was protecting him).

    • Tom-1812 says:

      I think Trump expects to go to prison. That’s why his public appearances are always staged before a bank of American flags, to see how he looks wearing stripes.

  15. Randy Baker says:

    Trump can and will argue virtually anything, almost for sure. Whether 4 Justices on the Court would stay a prison sentence to hear a load of garbage — garbage that likely even Fox News will decline to credit — I suspect is not likely.

    • bmaz says:

      This ain’t no TV, This ain’t no disco, This ain’t no fooling around.

      Please stop this stuff. You have been asked repeatedly, and seem not to care. You should care.

    • emptywheel says:

      The mandate here is REALLY broad, including a ton of people who are not the former President or a member of Congress. It’s likely that Smith will see things that doesn’t need the protection he can offer and he could spin that back out to DC USAO.

  16. ThomasJ7777 says:

    What if

    What if the Jan 6 Committee makes recommendations to expel and disqualify from holding public office all of the actual sedition caucus?

    They could do that before Jan 3rd, and if they did, the Republicans would not have a majority to elect the Speaker or pass organizing legislation for the House.

    It’s a pretty hardball move! And a more accomodating stance is probably wise. Here are some considerations.

    Even though the Freedom Caucus is supportive of the seditious conspiracy in statements, some of that is first amendment protected and some of it is protected by the Speech and Debate Clause in the Constitution, and so the J6 Committee couldn’t (and shouldn’t) recommend expelling and disqualifying all 30 of them.

    However, at least ten of them engaged in speech and conduct which is not protected, and some of those are arguably accomplices, either before or after the fact.

    Scott Perry and Louie Gohmert are accomplices. Andy Biggs, Paul Gosar and Matt Gaetz are arguably also accessories.

    Those 5 are my picks for expulsion and disqualification. That’s enough to deny the Republicans a majority on Jan 3rd.

    But Democrats need not, and should not, in my opinion, play it that hard. Instead, they should stipulate that the special elections (probably in April 2023) probably could restore the Republican majority, but since that is not a certainty, they could propose a bipartisan supermajority until those special elections are concluded.

    It is likely that 76 Republicans could be lobbied to join the bipartisan majority. There would be some horse trading, but it is possible.

    I envision a moderate Republican Speaker, a Democratic Majority leader, and two whips, one Republican and one Democratic. Democrats would be the “majority of the majority,” and so they would hold the chair of most Committees, but many committees could be bipartisan and some could be held by a Republican. Which ones? That’s the horse trading.

    There is an incentive. Bipartisan immigration legislation, crime legislation, housing legislation, and whatever the consensus would be on inflation reduction.

    Democrats could get votes on their agenda, and Republicans get votes on theirs.

    Best of all, no circus act investigations based on conspiracy theories AND the Jan 6 investigation could conclude with hearings on the security response, the intelligence failure, and the roles of members of Congress and the media.

    A productive four months. After that, 4 of the 5 expelled seditionists could be replaced, perhaps with more moderate Republicans, and the Democrats could pick up a seat (Perry’s).

    Then the Republicans would have to figure out how to govern with a two seat majority and a couple dozen batshit crazy members. Unless more of them are arrested!

    One last thought. It is my opinion that all of this will unfold while Trump is in jail and unable to do anything but rant and rave at a cell wall.

    My tea leaves say he will be arrested on the morning of Nov 25th. Black Friday. And he will never get out of jail again.

    • emptywheel says:

      It’s not going to happen. The only thing remotely possible would be a move against Perry before he is sworn in again on the 3rd.

    • jeco says:

      I think it will take a conviction , maybe after appeal to remove a Rep – which might take their full 2 year term anyway, but I assume some of these Red state insurrectionists would be reelected even after conviction. Maybe they’ll be able to vote from their cells. GOP bought into trump’s failed coup with their votes on 1/6 and impeachment #2. Demographics are so against them, they have to find a path to power that doesn’t require majority of votes, even electoral college.

      I never favored statehood for DC, as for PR, it’s their call, but I can see it’s important to get those addl blue seats. Believe me, if they were ruby red they’d be in now.

  17. Jim Luther says:

    As for entities, I wish to nominate the Republican Attorneys General Association, and their Rule of Law Defense Fund, for consideration.

  18. Troutwaxer says:

    Not to be off topic or anything, but did anyone notice this Politico article when it came out a couple months back?

    But a POLITICO investigation shows that potential conflicts involving justices’ spouses extend beyond the Thomases. Chief Justice John Roberts’ wife, Jane Roberts, has gotten far less attention. But she is a legal head-hunter at the firm Macrae which represents high-powered attorneys in their efforts to secure positions in wealthy firms, typically for a percentage of the first-year salary she secures for her clients. A single placement of a superstar lawyer can yield $500,000 or more for the firm…

    …But if anyone wants to find out whether Jesse Barrett’s clients have a direct interest in cases being decided by his wife, they’re out of luck. In the Supreme Court’s notoriously porous ethical disclosure system, Barrett not only withholds her husband’s clients, but redacted the name of SouthBank Legal itself in her most recent disclosure.

    I think this is very interesting from all kinds of perspectives. Hopefully the moderators will forgive a single URL.


  19. Bay State Librul says:

    The flouted five

    5 House Reps have given the middle finger to their J6 Subpoenas

    McCarthy, Perry, Jordan, Biggs and Brooks.

    Help me out here, how do we overcome this breach, this wall to disclosure. How do we make a subpoena great again

  20. Kmlisle1 says:

    This is small potatoes but it made me smile as it happened in my daughter’s home state of New Mexico:
    From CNN:
    “A New Mexico judge on Tuesday removed January 6 rioter and Cowboys for Trump founder Couy Griffin from his elected position as a county commissioner for his role in the US Capitol attack.

    The ruling was the result of a lawsuit seeking Griffin’s removal, which alleged that he violated a clause in 14th Amendment of the Constitution by participating in an “insurrection” against the US government. He had been convicted of trespassing earlier this year.

    The historic ruling represents the first time an elected official has been removed from office for their participation or support of the US Capitol riot. It also marks the first time a judge has formally ruled that the events of January 6, 2021, were an “insurrection.”


    [Thanks for updating your username to meet the 8 letter minimum. /~Rayne]

  21. Savage Librarian says:

    Ratholes of Lost Time

    Like a brute who went viral
    Like a squeal within a squeal
    On a bender, never winning
    On an ever skimming deal

    Like a downfall always counting
    on someone to impugn
    Like a mobster still returning
    to a nominal tycoon

    Like some schlock that keeps creeping
    past the limits of the base
    And the world just can’t grapple
    with a brute so out of place

    Like the brutes that you find
    in the ratholes of lost time

    Like a pummel that you cop to
    that begets a pummel of it’s own
    Then you have to case for a tavern
    where you’ll be left alone

    Like a plan that keeps evolving
    through a half cockeyed scheme
    by the principals and rogues
    and mob bosses in the team

    Malaise now mingles in the docket
    Records rankle in your head
    A newcomer quite so glibly
    did a doozy on your spread

    Covers gone from in a drawer
    can leave their imprints on the stand
    Your assistant’s constant humming
    says you’re not in such demand

    Files hanging in their folders
    Your stagnant speeches are all wrong
    Half-remembered words and places
    But just where do you belong?

    Now you know it’s close to over
    as you are forced to be aware
    that the people now are yearning
    for a leader from elsewhere

    Like a brute who went viral
    Like a squeal within a squeal
    On a bender, never winning
    On an ever skimming deal

    All your images maligned
    Like the brutes that you find
    in the ratholes of lost time


    “Windmills Of Your Mind (M.Legrand) piano JMAGP”

  22. Bay State Librul says:

    kpavlovic at 11:39 AM

    To be honest, I was using subpoena in the general sense (Webster)
    If the DOJ’s batting average is higher, then of course, use that method to obtain critical information.
    So would you be in favor of DOJ issuing subpoenas to the flaunting five, if and when the J6 Committee refers criminal action to the DOJ?

  23. earlofhuntingdon says:

    Another LGBTQ+ massacre, this time in Colorado Springs, long known for the dominance of its evangelical culture and secessionist leanings, and home to a service academy severely afflicted by pro-christianist bias. It remains the anti-Boulder of legend (a culture nearly wiped out by its San Francisco-like housing costs). One of many threads, this one by Jennifer Cohn.


    • Jenny says:

      You have to be taught to hate.

      “I like your Christ, I do not like your Christians. Your Christians are so unlike your Christ.”
      ― Mahatma Gandhi

    • rip no longer says:

      I’ve slowly weaned myself off of twitter. Never really got into fb.

      However so many people post links to twitter articles, and I know me just even looking at the image counts as a view (and possible security intrusion). So I used one of the many extensions to prevent any twitter domain material from being displayed or clicked on.

      Now, how to get posters to not assume everyone else wants to pull the actual content from twitter (or fb or etc.).

  24. Joeff1953 says:

    Apropos the funding angle (Holman Rule) Trump used probably-unappropriated funds for his Wall and SCOTUS gave a pass (at least temporary which is what matters). Pretty sure it’s a political question, to be included in the inevitable articles of impeachment.

Comments are closed.