July 22, 2024 / by 

 

Dems Coalesce around Vice President Kamala Harris

We’re filling up thread quickly and I’m about to go to bed.

So I’m starting a new thread.

Since President Biden dropped out and endorsed the Vice President, she has formally taken over the campaign, raised $27.5 million in small donations, and collected endorsements from dozens of prominent Democrats (including a notable one from PA Governor Josh Shapiro, undoubtedly one of the leading candidates to be Kamala’s running mate).

About the only one publicly considering a challenge — aside from Marianne Williamson — is turncoat Joe Manchin, a 76-year old retiree looking to replace the 81-year old former nominee.

Dems are in array.

And the Republican nominee, a felon, fraudster, and rapist, has announced he is afraid to do a debate with a prosecutor like Kamala Harris. He’s also wailing about his sunk cost.

 

More endorsements:

Roy Cooper (with Josh Shapiro, among the most likely VP candidates)

Gavin Newsom

Mark Kelly

Jared Polis

Pete Buttigieg

Brian Schatz

Ron Wyden

Bob Casey

AOC

Ayanna Pressley

Delia Ramirez

Greg Casar

Jamaal Bowman

Tennessee’s entire delegation

All 50 Democratic Chairs

Kathy Hochul

Phil Murphy

AFT

SEIU

 


Biden Drops Out of Race, Endorses Vice President Harris

Per letter posted to Xitter.

Update: A follow-up tweet endorsed Kamala.

My fellow Democrats, I have decided not to accept the nomination and to focus all my energies on my duties as President for the remainder of my term. My very first decision as the party nominee in 2020 was to pick Kamala Harris as my Vice President. And it’s been the best decision I’ve made. Today I want to offer my full support and endorsement for Kamala to be the nominee of our party this year. Democrats — it’s time to come together and beat Trump. Let’s do this.

Harris accepts!

On behalf of the American people, I thank Joe Biden for his extraordinary leadership as President of the United States and for his decades of service to our country. His remarkable legacy of accomplishment is unmatched in modern American history, surpassing the legacy of many Presidents who have served two terms in office.

It is a profound honor to serve as his Vice President, and I am deeply grateful to the President, Dr. Biden, and the entire Biden family. I first came to know President Biden through his son Beau. We were friends from our days working together as Attorneys General of our home states. As we worked together, Beau would tell me stories about his Dad. The kind of father—and the kind of man—he was. And the qualities Beau revered in his father are the same qualities, the same values, I have seen every single day in Joe’s leadership as President: His honesty and integrity. His big heart and commitment to his faith and his family. And his love of our country and the American people.

With this selfless and patriotic act, President Biden is doing what he has done throughout his life of service: putting the American people and our country above everything else.

I am honored to have the President’s endorsement and my intention is to earn and win this nomination. Over the past year, I have traveled across the country, talking with Americans about the clear choice in this momentous election. And that is what I will continue to do in the days and weeks ahead. I will do everything in my power to unite the Democratic Party—and unite our nation—to defeat Donald Trump and his extreme Project 2025 agenda.

We have 107 days until Election Day. Together, we will fight. And together, we will win.

Big Gretch:

President Biden is a great public servant who knows better than anyone what it takes to defeat Donald Trump. His remarkable work to lower prescription drug costs, fix the damn roads, bring supply chains home, address climate change, and ensure America’s global leadership over decades will go down in history. My job in this election will remain the same: doing everything I can to elect Democrats and stop Donald Trump, a convicted felon whose agenda of raising families’ costs, banning abortion nationwide, and abusing the power of the White House to settle his own scores is completely wrong for Michigan. [my emphasis]

Hunter Biden:

For my entire life, I’ve looked at my dad in awe.  How could he suffer so much heartache and yet give so much of whatever remained of his heart to others?

Not only in the policies he passed, but in the individual lives he’s touched.

Over a life time I have witnessed him absorb the pain of countless everyday Americans who he’s given his personal phone number to, because he wanted them to call him when they were hurting. When their last hopes were slipping through their hands.

That unconditional love has been his North Star as a President, and as a parent.  He is unique in public life today, in that there is no distance between Joe Biden the man and Joe Biden the public servant of the last 54 years.

I’m so lucky every night I get to tell him I love him, and to thank him.  I ask all Americans to join me tonight in doing the same.

Thank you, Mr. President.  I love you, Dad.

Endorsements:

The Clintons

John Kerry

Josh Shapiro

Chris Coons

Mark Warner

Tim Kaine

Elizabeth Warren

Adam Schiff

Jon Ossoff

Tammy Baldwin

Mazie Hirono

Steny Hoyer

James Clyburn

Pramala Jayapal

Jamie Raskin

Eric Swalwell

Lucy McBath

Dan Kildee

Annie Kuster

Ilhan Omar

Cori Bush

Deborah Ross

Summer Lee

Katie Porter

Tish James

Keith Ellison

Gabrielle Giffords

Alex Soros

 

 

Not endorsing:

Nancy Pelosi

Obama

Reed Hastings (one of the donors who led the attack on Biden)


Will Peter Baker Exhibit the Same Tenacity about Medical Records on the Trump Shooting as He Did a Parkinson’s Conspiracy Theory?

Something funny happened on Xitter.

In an attempt to demonstrate the double standard and cowardice of the captive media, I tweeted at Peter Baker asking if he was ever going to exercise the same diligence about getting a medical report on Donald Trump’s shooting injury as he was at engaging in conspiracy theories about a Parkinson’s doctor.

Jesse Singal screen capped the tweet, admitted “it would be good to know exactly what happened” but then scolded that my single tweet was a weird thing, “to spend one’s resources on…”

Singal babbled on in telling ways, if you’re into that kind of thing.

But his complaint is useful illustration of something larger.

Given replays, I have no reason to doubt that the teleprompters were not hit by any bullets Thomas Crooks shot; I accept that early reports that Trump was hit by glass from his teleprompter were wrong.

I have no preconception about what we would learn from a medical report on the treatment Trump got. It might be something as banal as the news that plastic surgeons had to do some quick reconstruction to replace cartilage in Trump’s ear. Though Eric Trump has already revealed that Trump did not require stitches, which is the most detailed report we’ve gotten.

What I do know is there once used to be a norm in the United States that presidents and presidential candidates were expected to offer some transparency, however feigned, about two subjects: their finances and their health.

Biden has done that. Indeed, the report he released from his January physical not only described that he had been screened for Parkinson’s, which was ruled out, but it provided explanations for the things, like his halting step, that had raised concerns about Parkinson’s. Sure, by all means question that — but before you do, at least cross check the visitor logs on which you’ve built a conspiracy theory to see if they back your insinuations (which these never did).

Biden has similarly released several reports about the progression of his COVID, down to his temperature, treatment, and oximeter levels (one, two, three). Given the current state of COVID treatment, I have no big worries about his diagnosis (just as I have no preconceived notion about what Trump’s medical treatment would reveal). But it’s good to have. It is an important part of democracy. At the very least, such reports offer reassurances that if something were to happen — such as the time Trump got pre-vaccination COVID and almost killed Chris Christie, before walking into a debate with Joe Biden — we would know about it.

Obviously, we never got anything remotely reliable as to Trump’s medical records. He had two hack doctors write up his reports, one of whom disclosed alarming details about a cover-up after the fact. He had at least one medical event that remains unexplained.

And so, even if Trump’s entire right ear had been replaced, I doubt we’d know about it.

But, particularly amidst an otherwise diligent effort to learn what happened, I would expect that journalists would nevertheless demand such reports. If Trump refused to provide such reports, I would expect that to be a story — certainly a far bigger story than Peter Baker’s baseless insinuations about Biden’s health.

And yet, crickets. Either they asked and were refused that basic information, or they have stopped bothering to ask for basic transparency from Trump, knowing he’ll refuse.

Either way, the failure to demand a formal medical report after a shooting attempt represents the utter collapse of the most basic kind of journalism.

Do not obey in advance, Tim Snyder has written about how to resist fascism.

Ask for the medical report, even if you know they’ll refuse. If they do refuse, that — by itself — is a story.

Update: Shortly after I posted this, Trump released what purports to be a medical report from Candy Man Ronny Jackson.

It serves as an excellent test of whether self-imagined journalists are exercising any assessment of source credibility. More on this tomorrow.


Boiled Frog Journalism: Is Trump an Agent of Saudi Arabia, and Other Pressing Questions Buried under Biden’s Age

A jury found Robert Menendez guilty on all charges yesterday, including those alleging he accepted payments from Egypt and Qatar (I didn’t follow the trial closely enough to figure out which country ultimately provided the gold). The verdict marks DOJ’s first successful conviction under 18 USC 219, basically, working for a foreign country while serving as a member of Congress.

Henry Cuellar faces the same charge.

While the RNC largely overshadowed the verdict, Chuck Schumer, Cory Booker, and Governor Phil Murphy have all called on Menendez to step down.

The reasons why he should resign seem obvious: You can’t continue to serve the people of New Jersey after a jury determined you were actually using your position of power to serve two wealthy foreign countries.

Is Trump a Saudi foreign agent?

And yet we are two days into Trump’s nomination party, and no one has asked — much less answered — whether Donald Trump is a business partner, paid foreign agent, or merely an employee of Saudi Arabia.

This is not a frivolous question. Since Trump left office, his family has received millions in four known deals from the Saudis:

  • A deal to host LIV golf tournaments. Forbes recently reported that Trump Organization made less than $800K for about half the tournaments it has hosted. But Trump’s role in the scheme has given credibility to an influence-peddling scheme that aims to supplant the PGA’s influence. When Vivek Ramaswamy learned that two consultants to his campaign were simultaneously working for LIV, he forced them to resign to avoid the worries of influence-peddling. Yet Trump has continued to host the Saudis at his properties.
  • A $2 billion investment in Jared Kushner’s private equity firm, in spite of the fact that analysts raised many concerns about the investment, including that he was charging too much and had no experience.
  • A deal to brand a property in Oman slated to open in 2028, which has already brought Trump Organization $5 million. The government of Oman is a key partner in the deal, signed with a huge Saudi construction firm.
  • A newly-announced deal with the same construction firm involved in the Oman deal, this time to brand a Trump Tower in Jeddah.

These Saudi deals come on top of Trump’s testimony that Turnberry golf course and his Bedford property couldn’t be overvalued because some Saudi would be willing to overpay for them.

But I believe I could sell that LIV Golf for a fortune, Saudi Arabia. I believe I could sell that to a lot of people for numbers that would be astronomical because it is like — very much like owning a great painting.

[snip]

I just felt when I saw that, I thought it was high. But I could see it — as a whole, I could see it if this were s0ld to one buyer from Saudi Arabia — I believe it’s the best house in the State of New York.

And while Eric Trump, not his dad, is running the company, Eric also has a role in the campaign and his spouse Lara has taken over the entire GOP.

Trump never fulfilled the promises to distance himself from his companies in the first term. A very partial review of Trump Organization financial records show the company received over $600K from the Saudis during his first term. As far as I’m aware, no one has even asked this time around.

Which means as things stand, Trump would be the sole beneficiary of payments from key Saudi investors if he became President again. Trump would be, at the very least, the beneficiary of a business deal with the Saudis, as president.

Admittedly, under the Supreme Court’s latest ruling on gratuities, it might be legal for Trump to get a bunch of swank branding deals as appreciation for launder Saudi Arabia’s reputation (one of the things for which Menendez was just convicted).

But that doesn’t mean it should be ignored, politically. It doesn’t mean American voters shouldn’t know these details. It doesn’t mean journalists (besides NYT’s Eric Lipton, whose most recent story on this was buried on page A7) shouldn’t demand answers.

What deals has Trump made with Putin and/or Orbán?

At some point at the RNC, Don Jr claimed that his Daddy would get poor coverage from real journalists because “they lied about Russia Russia Russia.”

Only, they didn’t.

In guilty pleas, Trump’s people confessed that they were the ones lying. George Papadopoulos lied to hide when he learned of the Russian hack-and-leak operation. Mike Flynn lied to hide his efforts to undermine Barack Obama’s foreign policy with Russia. Micahel Cohen lied to hide his contact with the Kremlin during the campaign in pursuit of the kind of Trump Tower deal Trump has since inked with the Saudis.

Don Jr was spared charges, in part, because he’s too dumb to be expected to know he shouldn’t accept campaign dirt from Russian nationals.

Robert Mueller found that Trump’s campaign manager briefed someone Treasury has since labeled a Russian spy, Konstantin Kilimnik, on his plan to win the Rust Belt, even while discussing a deal to carve up Ukraine and get tens of millions in benefits. Kilimnik passed on polling data and the campaign strategy to Russian spies. Amy Berman Jackson ruled that Paul Manafort lied to hide that.

At the time the FBI obtained Roger Stone’s cell site location in August 2018, they had reason to believe he had gotten advance notice of both the dcleaks and the Guccifer 2.0 releases. Stone had multiple contacts with Trump about the releases and prosecutors hoped to obtain a notebook where Stone documented all of those conversations. A jury found that Stone lied to hide whence he learned all this.

Trump pardoned all but Cohen and Jr for the lies they told to hide what really happened with Russia. And we still don’t know why the clemency for Roger Stone Trump stashed in his desk drawer had a Secret document on Macron associated with it.

And Trump has only gotten more shameless since. In 2019, during his impeachment for extorting Volodymyr Zelensky to investigate Joe Biden and his kid, Trump was warned that among the Ukrainians from whom Rudy Giuliani was soliciting dirt on the Bidens was at least one Russian agent, Andrii Derkach.

Trump did nothing to stop Rudy from sidling up to a Russian agent. And when Rudy came back, Bill Barr set up a side channel to ingest that dirt — a side channel the resulted in an FBI informant with self-professed ties to Russian spies attempting to frame Joe Biden for bribery, an attempt to frame Biden that likely goes a long way to explain why the plea deal against Hunter Biden collapsed.

Once upon a time, it was a big deal that Trump refused to let an activist make the RNC platform’s defense of Ukraine more hawkish.

Now, however, Trump no longer hides that he’s willing to let Putin dismember Ukraine. He welcomed Viktor Orbán’s pitch of a plan to do just that — but there has been no readout from Trump’s side of what happened. Orbán, however, has told other EU nations that Trump will moved for “peace” immediately after being elected — a replay of what Flynn lied to cover up in 2017 — largely by withdrawing US support for Ukraine.

In the past, Trump has gone even further than this, suggesting he’ll do nothing as Putin invades NATO states.

Meanwhile, JD Vance is, if anything, even more pro-Russian than Trump, as are some of the Silicon Valley oligarchs who now back Trump’s campaign since the Vance pick.

Trump’s plan of capitulation to Russia will go a long way to ending the Western rules-based order, the greatest wish of Putin and Xi Jinpeng.

And thus far we know just one of the things that Russia seems to be doing to help Trump’s campaign: detaining WSJ reporter Evan Gershkovich until Trump gets elected, just as Iran held onto hostages to help Reagan get elected. Avril Haines recently made clear Russia is planning on helping in other ways as well.

That’s how “Russia Russia Russia” has worked. It’s a shameless lie that Mueller found nothing, a lie built off years of propaganda. Indeed, Trump’s willing acceptance — or, in Rudy’s case, outright solicitation — of Russia’s help to get elected has only gotten more brazen. Yet rather than call Don Jr on his “Russia Russia Russia” lie, reporters simply let the pressing question of whether Trump will end the alliance of democracies in a second term go unasked.

What happened to the missing classified documents?

Amid the focus on Aileen Cannon’s stall then dismissal of Trump’s stolen documents charges, something has been missed: There appear to be documents missing. Here’s what we know:

  • According to the indictment that Judge Cannon just threw out, after Trump tricked Evan Corcoran into searching only about half the boxes containing stolen documents, he flew to Bedminster with “several” of the boxes he had excluded from the search.
  • In July 2022, Trump and Walt Nauta snuck back to Mar-a-Lago from Bedminster — to check on the boxes, one witness told Jack Smith.
  • When the FBI searched Mar-a-Lago on August 8, 2022, they failed to search a closet in his bedroom to which he had added a new lock.
  • Several searches overseen by Tim Parlatore found no new documents, though he did find a new classified document folder.

Given FBI’s failure to do a complete search adn Parlatore’s failure to find documents at Bedminster, the most likely way to learn what happened to them would be to get Walt Nauta to flip, something that, as I suggested here, his indictment might normally have done. But (correct, as it turned out) expectations that the prosecution would go away kept Nauta from cooperating.

And as a result, we have literally no idea how many documents Trump managed to withhold from the FBI’s search, or what he did with them.

The continued focus on Joe Biden’s three year seniority over Trump

Again, this kind of betrayal of America once mattered in Trump’s campaigns.

No longer.

It’s not happening because journalists are so cowardly they can be cowed with a mere “Russia Russia Russia” chant.

And it’s not happening because journalists have lost all sense of proportion — and for many of them, all sense of public good.

Journalists are making much of a confrontation between Jason Crow and Biden, related by Julia Ioffe, in which Biden insisted he had been great on foreign policy.

The campaign did not, however, dispute this next part, about Crow and his Bronze Star. In a video of the Zoom that I was able to view, you can hear Biden chastising Crow, who asked about the importance of national security to voters. “First of all, I think you’re dead wrong on national security,” the president says, the emotion at times garbling his words. “You saw what happened recently in terms of the meeting we had with NATO. I put NATO together. Name me a foreign leader who thinks I’m not the most effective leader in the world on foreign policy. Tell me! Tell me who the hell that is! Tell me who put NATO back together! Tell me who enlarged NATO, tell me who did the Pacific basin! Tell me who did something that you’ve never done with your Bronze Star like my son—and I’m proud of your leadership, but guess what, what’s happening, we’ve got Korea and Japan working together, I put Aukus together, anyway! … Things are in chaos, and I’m bringing some order to it. And again, find me a world leader who’s an ally of ours who doesn’t think I’m the most respected person they’ve ever—”

“It’s not breaking through, Mr. President,” said Crow, “to our voters.”

“You oughta talk about it!” Biden shot back, listing his accomplishments yet again. “On national security, nobody has been a better president than I’ve been. Name me one. Name me one! So I don’t want to hear that crap!”

It’s another instance where Biden responds stubbornly when Democrats try to push the president to drop out of the race. And that’s why reporters are gleefully dunking on Biden’s comments.

But it’s also an instance where Biden is making a really good point: He has restored America’s alliances to what they were before Trump destroyed them.

And the press is only telling that story — and doesn’t even realize that they are only telling that story — as part of their singular obsession with Biden’s age.

It’s a confession, really, that they have abdicated any concern for the kind of accomplishments of which Biden is justifiably bragging (ignoring Gaza). They have been bullied out of covering any of Trump’s glaring betrayals of the country the leadership of which he wants to monetize.

Trump might literally be an agent of a foreign power — just like Robert Menendez has been adjudged — and this mob calling themselves journalists would exhibit the least interest, much less persistent concern. Journalists don’t even care that both of Trump’s most suspect foreign allegiances involve the exploitation of journalists for political gain, first Jamal Khashoggi and then Gershkovich. Journalists have ignored that recent history, even after he picked Vance, someone who formally asked Merrick Garland to criminally investigate Robert Kagan (a neocon whom Vance called left wing) for inciting insurrection because he discussed liberal states resisting Trump in a second term.

Trump might literally sell out the next journalist who opposes him to be chopped up by some foreign dictator. And yet the press corps seems not to give a rat’s ass.

Because Joe Biden is three years older than Donald Trump.


Aileen Cannon Makes Clarence Thomas’ Calvinball Newly Significant

Aileen Cannon’s order throwing out the stolen documents prosecution may make some Calvinball Justice Thomas engaged in more important in days ahead.

Cannon actually didn’t give Trump his preferred outcome: a ruling that Jack Smith would have had to be senate-confirmed and also that he was funded improperly. Aside from the timing, neither is this outcome one (I imagine) that Trump would prefer over a referral of Jack Smith for investigation or a dismissal on Selective Prosecution or spoilation or some other claim that would allow Trump to claim he was victimized.

Rather, she adopted a second part of Trump’s argument, that Merrick Garland didn’t have the legal authority to appoint a Special Counsel, of any sort, whether someone from outside the Department or someone (like David Weiss) who was already part of it. She punted on most of the question on whether a Special Counsel is a superior officer requiring Senate confirmation or an inferior one not requiring it.

Cannon’s argument lifts directly from Clarence Thomas’ concurrence, which she cites three times (though that is, in my opinion, by no means her most interesting citation). Thomas argues that the four statutes that Garland cited in his appointment of Jack Smith are insufficient to authorize the appointment of a Special Counsel.

We cannot ignore the importance that the Constitution places on who creates a federal office. To guard against tyranny, the Founders required that a federal office be “established by Law.” As James Madison cautioned, “[i]f there is any point in which the separation of the Legislative and Executive powers ought to be maintained with greater caution, it is that which relates to officers and offices.” 1 Annals of Cong. 581. If Congress has not reached a consensus that a particular office should exist, the Executive lacks the power to create and fill an office of his own accord.

It is difficult to see how the Special Counsel has an office “established by Law,” as required by the Constitution. When the Attorney General appointed the Special Counsel, he did not identify any statute that clearly creates such an office. See Dept. of Justice Order No. 5559–2022 (Nov. 18, 2022). Nor did he rely on a statute granting him the authority to appoint officers as he deems fit, as the heads of some other agencies have.3 See supra, at 5. Instead, the Attorney General relied upon several statutes of a general nature. See Order No. 5559–2022 (citing 28 U. S. C. §§509, 510, 515, 533).

None of the statutes cited by the Attorney General appears to create an office for the Special Counsel, and especially not with the clarity typical of past statutes used for that purpose. See, e.g., 43 Stat. 6 (“[T]he President is further authorized and directed to appoint . . . special counsel who shall have charge and control of the prosecution of such litigation”). Sections 509 and 510 are generic provisions concerning the functions of the Attorney General and his ability to delegate authority to “any other officer, employee, or agency.” Section 515 contemplates an “attorney specially appointed by the Attorney General under law,” thereby suggesting that such an attorney’s office must have already been created by some other law. (Emphasis added.) As for §533, it provides that “[t]he Attorney General may appoint officials . . . to detect and prosecute crimes against the United States.” (Emphasis added.) It is unclear whether an “official” is equivalent to an “officer” as used by the Constitution. See Lucia, 585 U. S., at 254–255 (opinion of THOMAS, J.) (considering the meaning of “officer”). Regardless, this provision would be a curious place for Congress to hide the creation of an office for a Special Counsel. It is placed in a chapter concerning the Federal Bureau of Investigation (§§531–540d), not the separate chapters concerning U. S. Attorneys (§§541–550) or the now-lapsed Independent Counsel (§§591–599).4

To be sure, the Court gave passing reference to the cited statutes as supporting the appointment of the Special Prosecutor in United States v. Nixon, 418 U. S. 683, 694 (1974), but it provided no analysis of those provisions’ text. Perhaps there is an answer for why these statutes create an office for the Special Counsel. But, before this consequential prosecution proceeds, we should at least provide a fulsome explanation of why that is so.

4Regulations remain on the books that contemplate an “outside” Special Counsel, 28 CFR §600.1 (2023), but I doubt a regulation can create a federal office without underlying statutory authority to do so.

Cannon takes Thomas’ treatment of Nixon as a “passing reference” as invitation to make truly audacious analysis of it as dicta.

D. As dictum, Nixon’s statement is unpersuasive.

Having determined that the disputed passage from Nixon is dictum, the Court considers the appropriate weight to accord it. In this circuit, Supreme Court dictum which is “well thought out, thoroughly reasoned, and carefully articulated” is due near-precedential weight. Schwab, 451 F.3d at 1325–26 (collecting cases); Peterson, 124 F.3d at 1392 n.4. Additionally, courts are bound by Supreme Court dictum where it “is of recent vintage and not enfeebled by any subsequent statement.” Id. at 1326 (quoting McCoy v. Mass. Inst. of Tech., 950 F.2d 13, 19 (1st Cir. 1991)). The Nixon dictum is neither “thoroughly reasoned” nor “of recent vintage.” Id. at 1325–26. For these reasons, the Court concludes it is not entitled to considerable weight.

She then reviews the cited statutes one by one and deems them all insufficient to authorize a Special Counsel, with special focus on 28 USC 515 and (because Garland cited it for the first time) 533.

The Court now proceeds to evaluate the four statutes cited by the Special Counsel as purported authorization for his appointment—28 U.S.C. §§ 509, 510, 515, 533. The Court concludes that none vests the Attorney General with authority to appoint a Special Counsel like Smith, who does not assist a United States Attorney but who replaces the role of United States Attorney within his jurisdiction.

[snip]

Section 515(b), read plainly, is a logistics-oriented statute that gives technical and procedural content to the position of already-“retained” “special attorneys” or “special assistants” within DOJ. It specifies that those attorneys—again already retained in the past sense—shall be “commissioned,” that is, designated, or entrusted/tasked, to assist in litigation (more on “commissioned” below). Section 515(b) then provides that those already-retained special attorneys or special assistants (if not foreign counsel) must take an oath; and then it directs the Attorney General to fix their annual salary. Nowhere in this sequence does Section 515(b) give the Attorney General independent power to appoint officers like Special Counsel Smith—or anyone else, for that matter.

Cannon twice notes her order applies only to the indictment before her (perhaps the only moment of judicial modesty in an otherwise hubristic opinion).

The instant Superseding Indictment—and the only indictment at issue in this Order—arises from the latter investigation.

[snip]

The effect of this Order is confined to this proceeding.

This is obvious — but it is also a way of saying that if the Eleventh backs this ruling, it would set up a circuit split with the DC rulings that she dismisses in cursory fashion.

Effectively, this represents one Leonard Leo darling, Cannon, dropping all her other means of stalling the prosecution for Trump, to act on seeming instructions from a more senior Leonard Leo darling.

A bunch of lawyers will dispute Cannon’s recitation of Thomas’ reading of the law. Indeed, Neal Katyal has already done so in an op-ed for the NYT.

Judge Cannon asserts that no law of Congress authorizes the special counsel. That is palpably false. The special counsel regulations were drafted under specific congressional laws authorizing them.

Since 1966, Congress has had a specific law, Section 515, giving the attorney general the power to commission attorneys “specially retained under authority of the Department of Justice” as “special assistant[s] to the attorney general or special attorney[s].” Another provision in that law said that a lawyer appointed by the attorney general under the law may “conduct any kind of legal proceeding, civil or criminal,” that other U.S. attorneys are “authorized by law to conduct.”

Yet another part of that law, Section 533, says the attorney general can appoint officials “to detect and prosecute crimes against the United States.” These sections were specifically cited when Attorney General Merrick Garland appointed Mr. Smith as a special counsel. If Congress doesn’t like these laws, it can repeal them. But until then, the law is the law.

I drafted the special counsel regulations for the Justice Department to replace the Independent Counsel Act in 1999 when I worked at the department. Janet Reno, the attorney general at the time, and I then went to Capitol Hill to brief Congress on the proposed rules over a period of weeks. We met with House and Senate leaders, along with their legal staffs, as well as the House and Senate Judiciary Committees. We walked them extensively through each provision. Not one person raised a legal concern in those meetings. Indeed, Ken Starr, who was then serving as an independent counsel, told Congress that the special counsel regulations were exactly the way to go.

This legal dispute will be aired in the Eleventh in Jack Smith’s promised appeal.

Katyal’s more salient point is in describing where this leads if Trump’s Supreme Court gets to review Special Counsel appointments at some time after the November election will determine whether the rule applies to Trump or to a normal president.

Imagine a future president suspected of serious wrongdoing. Do we really want his appointee to be the one investigating the wrongdoing? The potential for a coverup, or at least the perception of one, is immense, which would do enormous damage to the fabric of our law.

That’s the kind of explanation, after all, why Cannon would drop all her other obstruction and pursue this angle: to ensure that a second Donald Trump administration could not be threatened with even the possibility of a Special Counsel.

But I’m interested in the way Thomas ended his concurrence, to an opinion about a prosecution involving official acts of a then-president. It is not dissimilar to the way John Roberts closed his majority opinion, by claiming this was all about separation of powers.

Whether the Special Counsel’s office was “established by Law” is not a trifling technicality. If Congress has not reached a consensus that a particular office should exist, the Executive lacks the power to unilaterally create and then fill that office. Given that the Special Counsel purports to wield the Executive Branch’s power to prosecute, the consequences are weighty. Our Constitution’s separation of powers, including its separation of the powers to create and fill offices, is “the absolutely central guarantee of a just Government” and the liberty that it secures for us all. Morrison, 487 U. S., at 697 (Scalia, J., dissenting). There is no prosecution that can justify imperiling it.

In this case, there has been much discussion about ensuring that a President “is not above the law.” But, as the Court explains, the President’s immunity from prosecution for his official acts is the law. The Constitution provides for “an energetic executive,” because such an Executive is “essential to . . . the security of liberty.” Ante, at 10 (internal quotation marks omitted). Respecting the protections that the Constitution provides for the Office of the Presidency secures liberty. In that same vein, the Constitution also secures liberty by separating the powers to create and fill offices. And, there are serious questions whether the Attorney General has violated that structure by creating an office of the Special Counsel that has not been established by law. Those questions must be answered before this prosecution can proceed. We must respect the Constitution’s separation of powers in all its forms, else we risk rendering its protection of liberty a parchment guarantee.

Here, the Executive is sharply constrained, even in its prosecutorial function, by guardrails Congress has given it.

I’m not sure this is consistent with this language from Roberts’ opinion, which reads maximalist authority for presidents to conduct criminal investigations (and cites to Nixon, with its assertion of great deference on Article II issues).

The Government does not dispute that the indictment’s allegations regarding the Justice Department involve Trump’s “use of official power.” Brief for United States 46; see id., at 10–11; Tr. of Oral Arg. 125. The allegations in fact plainly implicate Trump’s “conclusive and preclusive” authority. “[I]nvestigation and prosecution of crimes is a quintessentially executive function.” Brief for United States 19 (quoting Morrison v. Olson, 487 U. S. 654, 706 (1988) (Scalia, J., dissenting)). And the Executive Branch has “exclusive authority and absolute discretion” to decide which crimes to investigate and prosecute, including with respect to allegations of election crime. Nixon, 418 U. S., at 693; see United States v. Texas, 599 U. S. 670, 678–679 (2023) (“Under Article II, the Executive Branch possesses authority to decide ‘how to prioritize and how aggressively to pursue legal actions against defendants who violate the law.’” (quoting TransUnion LLC v. Ramirez, 594 U. S. 413, 429 (2021))). The President may discuss potential investigations and prosecutions with his Attorney General and other Justice Department officials to carry out his constitutional duty to “take Care that the Laws be faithfully executed.” Art. II, §3. And the Attorney General, as head of the Justice Department, acts as the President’s “chief law enforcement officer” who “provides vital assistance to [him] in the performance of [his] constitutional duty to ‘preserve, protect, and defend the Constitution.’” Mitchell v. Forsyth, 472 U. S. 511, 520 (1985) (quoting Art. II, §1, cl. 8).

Investigative and prosecutorial decisionmaking is “the special province of the Executive Branch,” Heckler v. Chaney, 470 U. S. 821, 832 (1985), and the Constitution vests the entirety of the executive power in the President, Art. II, §1. For that reason, Trump’s threatened removal of the Acting Attorney General likewise implicates “conclusive and preclusive” Presidential authority. As we have explained, the President’s power to remove “executive officers of the United States whom he has appointed” may not be regulated by Congress or reviewed by the courts. Myers, 272 U. S., at 106, 176; see supra, at 8. The President’s “management of the Executive Branch” requires him to have “unrestricted power to remove the most important of his subordinates”—such as the Attorney General—“in their most important duties.” Fitzgerald, 457 U. S., at 750 (internal quotation marks and alteration omitted).

The indictment’s allegations that the requested investigations were “sham[s]” or proposed for an improper purpose do not divest the President of exclusive authority over the investigative and prosecutorial functions of the Justice Department and its officials. App. 186–187, Indictment ¶10(c). And the President cannot be prosecuted for conduct within his exclusive constitutional authority. Trump is therefore absolutely immune from prosecution for the alleged conduct involving his discussions with Justice Department officials. [my emphasis]

That is, Roberts has to read presidential authority to intervene in DOJ’s prosecutorial functions in order to sanction Trump’s plan to demand DOJ’s participation in his fraud. But then Thomas argues that the president can only do so if Congress has given him authority.

Which is it?


America’s Hitler/JD 2024

Bronzer/Eyeliner 2024: MakeUp America Great Again

Consider this an open thread.

Links

Aaron Blake looks at how JD underperformed fellow Republicans in Ohio.

Robert Kuttner on JD’s false compassion.

A video with some of JD’s criticism from 2016.

This goes to a trusted Google page with tons of links on JD.

Bulwark on Vance’s embrace of Russian disinformation.

Nolan Finley is a conservative Detroit News commentator originally from Kentucky; he demands an apology from Vance for his slurs against Appalachia.


Aileen Cannon Unwound the Stolen Documents Prosecution Back to November 2022

There’s a detail of Judge Cannon’s order throwing out the stolen documents case that people seem to be missing.

She unwound the prosecution back to the time when Jack Smith took it over from when Jay Bratt had the lead.

Here, as in Lucia, the appropriate remedy is invalidation of the officer’s ultra vires acts. Since November 2022, Special Counsel Smith has been exercising “power that [he] did not lawfully possess.” Collins, 594 U.S. at 258. All actions that flowed from his defective appointment—including his seeking of the Superseding Indictment on which this proceeding currently hinges [ECF No. 85]—were unlawful exercises of executive power. Because Special Counsel Smith “cannot wield executive power except as Article II provides,” his “[a]ttempts to do so are void” and must be unwound. Id. at 283 (Gorsuch, J., concurring). Defendants advance this very argument: “any actions taken by Smith are ultra vires and the Superseding Indictment must be dismissed” [ECF No. 326 p. 9]. And the Court sees no alternative course to cure the unconstitutional problem.

There are a lot of people saying that DOJ can just charge the 18 USC 793 charges in SDFL or charge obstruction in either DC or SDFL.

But they can only do so relying on evidence obtained prior to Smith’s appointment. Some key things they got after that?

  • Evan Corcoran’s testimony
  • Yuscil Taveras’ cooperation
  • Some, but not all, of the surveillance footage
  • Testimony from Mark Meadows’ ghost writers, reflecting Trump’s knowledge that he had not declassified the Iran document

Probably, a simple obstruction charge limited to Trump’s refusal to respond to the subpoena might survive (though such a case would be stronger with Corcoran’s testimony). But there is no way they could charge the stolen documents case without recreating some of this investigation.

Update: Jack Smith has announced he will appeal.


The Taiwan Snub

I believe I remain the only person who has reported that China was involved in a suspected $10 million payment to Trump in 2016. When Egypt National Bank was dodging compliance with a Robert Mueller subpoena in 2018-2019, they said complying with the request might violate Chinese law. That investigation was shut down in 2020 in a period when Bill Barr was otherwise shutting down all of Mueller’s then-ongoing investigations.

Among the new details of Trump’s financial ties to China revealed when his tax records were stolen and leaked is that Trump made $5.6 million from selling the penthouse Ivanka used to live in to a well-connected Chinese businessperson.

And not long after winning the 2016 election, Mr. Trump reported selling a penthouse in one of his Manhattan buildings for $15.8 million to a Chinese-American businesswoman named Xiao Yan Chen, who bought the unit, previously occupied by Ivanka Trump and her husband, Jared Kushner, in an off-market transaction. Ms. Chen runs an international consulting firm and reportedly has high-level connections to government and political elites in China.

Mr. Trump’s tax records show that he reported a capital gain of at least $5.6 million from the penthouse sale in 2017, his first year as president.

Those are interesting details, given China’s ties to Russia as Trump runs for President on a platform of capitulating to Vladimir Putin’s whims.

After all, at the NATO summit that the press largely ignored in favor of complaining that Joe Biden is old, the parties approved a declaration that called out China’s role in facilitating Russia’s attack on Ukraine.

The People’s Republic of China’s (PRC) stated ambitions and coercive policies continue to challenge our interests, security and values. The deepening strategic partnership between Russia and the PRC and their mutually reinforcing attempts to undercut and reshape the rules-based international order, are a cause for profound concern.

[snip]

26. The PRC has become a decisive enabler of Russia’s war against Ukraine through its so-called “no limits” partnership and its large-scale support for Russia’s defence industrial base. This increases the threat Russia poses to its neighbours and to Euro-Atlantic security. We call on the PRC, as a permanent member of the United Nations Security Council with a particular responsibility to uphold the purposes and principles of the UN Charter, to cease all material and political support to Russia’s war effort. This includes the transfer of dual-use materials, such as weapons components, equipment, and raw materials that serve as inputs for Russia’s defence sector. The PRC cannot enable the largest war in Europe in recent history without this negatively impacting its interests and reputation.

27. The PRC continues to pose systemic challenges to Euro-Atlantic security. We have seen sustained malicious cyber and hybrid activities, including disinformation, stemming from the PRC. We call on the PRC to uphold its commitment to act responsibly in cyberspace. We are concerned by developments in the PRC’s space capabilities and activities. We call on the PRC to support international efforts to promote responsible space behaviour. The PRC continues to rapidly expand and diversify its nuclear arsenal with more warheads and a larger number of sophisticated delivery systems. We urge the PRC to engage in strategic risk reduction discussions and promote stability through transparency. We remain open to constructive engagement with the PRC, including to build reciprocal transparency with the view of safeguarding the Alliance’s security interests. At the same time, we are boosting our shared awareness, enhancing our resilience and preparedness, and protecting against the PRC’s coercive tactics and efforts to divide the Alliance.

China scoffed that the charge.

“On the Ukraine crisis, NATO hyped up China’s responsibility. It makes no sense and comes with malicious intent,” Chinese foreign ministry spokesperson Lin Jin told a regular media briefing.

“We urge NATO to reflect on the root cause of the crisis and what it has done, and take concrete action to de-escalate rather than shift blame.”

Then it kicked off war games with the Russian navy.

China and Russia’s naval forces on Sunday kicked off a joint exercise at a military port in southern China on Sunday, official news agency Xinhua reported, days after NATO allies called Beijing a “decisive enabler” of the war in Ukraine.

The Chinese defense ministry said in a brief statement forces from both sides recently patrolled the western and northern Pacific Ocean and that the operation had nothing to do with international and regional situations and didn’t target any third party.

The exercise, which began in Guangdong province on Sunday and is expected to last until mid-July, aimed to demonstrate the capabilities of the navies in addressing security threats and preserving peace and stability globally and regionally, state broadcaster CCTV reported Saturday, adding it would include anti-missile exercises, sea strikes and air defense.

All of which makes this detail — part of the RNC platform that wasn’t the subject of a disinformation campaign in which credulous reporters claimed that endorsing fetal personhood was not a wholesale attack on choice — of more interest. In addition to (predictably) removing even the watered down Ukrainian position that was so controversial in the 2016 platform, the RNC also removed all mention of Taiwan.

— TAIWAN TICKED OFF OVER RNC SNUB: For the first time since 1980, Taiwan didn’t rate a mention in the Republican National Committee’s party platform released this week. Compare that with the platform in 2016 [link replaced] (the GOP didn’t produce one in 2020) that described the island as a “loyal friend” and pledged to “help Taiwan defend itself.” The RNC’s exclusion of Taiwan in the platform came despite intensive outreach by Taiwan’s diplomatic outpost in Washington, the Taipei Economic and Cultural Representative Office, to persuade GOP allies to get Taiwan into the platform, two people familiar with that effort told China Watcher. China Watcher granted the two anonymity because they were not allowed to discuss U.S.-Tawan issues on-record.

Messages shared with China Watcher between a former U.S. government official perceived as friendly toward Taiwan and a senior TECRO official included that official’s (unsuccessful) pleas that the platform reference Taiwan’s importance to Indo-Pacific security.

The platform supports a trade war with China — but makes no commitment to combat Chinese expansion to Taiwan, as Republicans committed in 2016.

We salute the people of Taiwan, with whom we share the values of democracy, human rights, a free market economy, and the rule of law. Our relations will continue to be based upon the provisions of the Taiwan Relations Act, and we affirm the Six Assurances given to Taiwan in 1982 by President Reagan. We oppose any unilateral steps by either side to alter the status quo in the Taiwan Straits on the principle that all issues regarding the island’s future must be resolved peacefully, through dialogue, and be agreeable to the people of Taiwan. If China were to violate those principles, the United States, in accord with the Taiwan Relations Act, will help Taiwan defend itself. We praise efforts by the new government in Taipei to continue constructive relations across the Taiwan Strait and call on China to reciprocate. As a loyal friend of America, Taiwan has merited our strong support, including free trade agreement status, the timely sale of defensive arms including technology to build diesel submarines, and full participation in the World Health Organization, International Civil Aviation Organization, and other multilateral institutions.

Trump is solicitous not just of Putin. He is also impressed by Xi Jinping and Kim Jong-Un, too.

And Kim Jong-Un, and President Xi of China – Kim Jong-Un of North Korea, all of these – Putin – they don’t respect him. They don’t fear him. They have nothing going with this gentleman and he’s going to drive us into World War Three.

Which could make Trump really susceptible to an offer most other people would refuse.


Shooting at Trump Event

There was an apparent attempt to shoot Donald Trump at his campaign event in Butler, PA tonight.

The Secret Service spox has released this statement.

I condemn political violence, and I call for better control on dangerous weapons. I am grateful that Trump was not badly injured.

There is already far too much disinformation and polarized reaction to this event. Because I don’t want this site to be a part of either (and because we don’t have the resources to track comments closely), I’m setting this post not to accept comments.

It will take some time to have a better understanding of this event. Please allow that to happen.

President Biden issued this statement.


Fridays with Nicole Sandler

Listen on Spotify (transcripts available)

Listen on Apple (transcripts available)

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Originally Posted @ https://www.emptywheel.net/2024-presidential-election/