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Three Things: A Three-Ring Circus

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[NB: Check the byline, thanks. /~Rayne]

Under the enormous canvas tent of the United States, come see the mightiest extant amusement organization, superior in character, regal in appointment, magnificent in conception, omnipotent in strength, with hundreds of witnesses, a plethora of attorneys and paralegals, the promise of the wild beast-like Chansley, multiple frustrated judges…

And one orange-tinted slack-bottomed kack-handed clown unseen off the stage entantrumed in the wings.

Ladies, Gentlemen, and those of pronouns without and within, welcome to the American circus.

I can’t even begin to imagine what all of this looks like from abroad.

~ 3 ~

Arguments just wrapped up in the U.S. Court of Appeals for the DC Circuit regarding former president Trump’s claim of executive privilege over testimony and materials subpoenaed by the House January 6 Committee. Twitter threads covering the hearing’s progress:

For BuzzFeed:


For DailyKos:

Stream the audio of the arguments on YouTube at: https://youtu.be/DcMnkpZOpxo

I have to admit this hearing is making me grit my teeth. No one is above the law; the executive’s job is to execute what Congress legislates, and Congress cannot do its job effectively without oversight of the executive’s work when its work product is not related to classified national security issues. There’s zero executive privilege for testimony and materials related to campaigning if performed in and by the White House.

~ 2 ~

Convicted shaman insurrectionist perp Jacob Chansley filed an appeal today.

Good luck with that, buddy. What a waste of a lengthy mea culpa in court.

Chansley wasn’t the only lower level perp on the agenda today — check Scott MacFarlane’s Twitter feed for more including another perp charged and another arraigned today.

~ 1 ~

Washington Post published an article today about Trump’s former chief of staff Mark Meadows, who until now has completely resisted compliance with a House January 6 Committee subpoena. Here’s the timeline of related events:

September 23, 2021 — House January 6 Committee issued a subpoena to Meadows;
October 7, 2021 — Due date for records subpoenaed;
October 15, 2021 — Deposition deadline;
November 11, 2021 — White House Deputy Counsel sent a letter to Meadow’s attorney advising that President Biden would not exert executive privilege over any testimony or records the House January 6 Committee subpoenaed;
November 11, 2021 — U.S. Court of Appeals for the D.C. Circuit blocked handover of National Archives’ presidential records responsive to a January 6 committee’s subpoena;
November 12, 2021 — Meadow’s attorney issued a statement which said Meadows would not cooperate with the committee until after the legality of the subpoenas was settled in court;
November 30, 2021 — See Thing 3 above, Court of Appeals for the DC Circuit hearing today regarding subpoena of testimony and records over which Trump claims executive privilege.

Hed and subhed of WaPo’s article today:

Former White House chief of staff Mark Meadows cooperating with Jan. 6 committee
Meadows has provided records to the committee investigating the attack on the Capitol by a pro-Trump mob and will give a deposition.

“Cooperating” is rather broadly used. Committee chair Bennie Thompson issued a statement today about Meadows:

“Mr. Meadows has been engaging with the Select Committee through his attorney. He has produced records to the committee and will soon appear for an initial deposition. The Select Committee expects all witnesses, including Mr. Meadows, to provide all information requested and that the Select Committee is lawfully entitled to receive. The committee will continue to assess his degree of compliance with our subpoena after the deposition.”

“has been engaging” isn’t the same as cooperating; an “initial” deposition doesn’t mean anything until Meadows has actually answered questions put to him without prevarication.

As Marcy tweeted, “Meadows could invoke a bunch of things and avoid testifying and avoid contempt that way.”

Betting this “cooperating” is a stall tactic which won’t end until the Department of Justice indicts Meadows for contempt of Congress as they did Steve Bannon.

But perhaps there will be more than two charges if Meadows “has been engaging” in a little light obstruction.

Sure hope for his own sake Meadows turned information related to his phone records.

~ 0 ~

What other hearing(s) did I miss? Share in comments.

Three Things: Ugly Goes Clean to the Bone [UPDATE-1]

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[NB: As always, check the byline. Updates will appear at the bottom. Thanks. /~Rayne]

Friday we got badly wanted news; we wanted it badly enough we didn’t blink at its arrival in the late Friday afternoon news dump zone.

But it wasn’t enough. It was only the start, a mere teaser.

~ 3 ~

At 3:53 p.m. last Friday, the Department of Justice tweeted the indictment news:

The internet was paying attention:

…even if Steve Bannon hadn’t been.

Rather hubristic to carry on as if he didn’t expect to be indicted, but then many of us were beginning to think it would never happen.

Bannon is supposed to surrender himself today, which may be a bit of a circus since Bannon now has a new attorney, David Schoen. Schoen was one of Trump’s impeachment attorneys in 2020.

~ 2 ~

The well-meaning sages who insisted things were under control — it was a good sign it was taking nearly a month to indict Bannon, don’t be like deplorables, blah-blah-blah — all had their say.

But which is it?

These things just need more time because DOJ must be cautious?

Or these things just needed this one person who wasn’t approved as DC-US Attorney until October 28 and sworn in more than a week later on November 5 to do the thing — which, by the way, took one week from oath to indictment?

Because it sure looks like the entirety of the House January 6 committee’s ability to wield its inherent powers on intransigent witnesses was completely dependent on the absence/presence of a single Biden appointee which some jerk like Sen. Ted Cruz could have held up the way he is currently holding our foreign policy hostage with holds on State Department nominees.

Are we supposed to accept with a pat on our heads that our democracy yet again depended on one person’s role?

If the DC-US Attorney were to become incapacitated at any time when the January 6 committee refers a contempt charge to DOJ, are we supposed to accept the platitudes “this takes time” or “don’t be a deplorable” when nothing happens?

What kind of government continuity is this?

~ 1 ~

Which brings us to the problem of former White House Chief of Staff Mark Meadows who received communications both Thursday and Friday from the chair of the January 6 committee about his lack of response to a subpoena issued by the committee on September 23.

Using false or misleading claims, Meadows had attempted to spur the DOJ to investigate election fraud claims including a bizarre theory that unknown persons located in Italy used military technology and satellites to remotely switch votes from Trump to Biden. These claims were sent to then-Acting Attorney General Jeffrey Rosen between December and January — after the 2020 election but before the January 6 insurrection.

Meadows was supposed to appear before the committee on October 15 to answer questions about these claims and his role in pushing them toward the DOJ, a week after he was supposed to have furnished documents requested by the committee in relation to these false election fraud claims.

The committee’s chair sent a letter last Thursday to Meadow’s attorney:

And on Friday the committee emphasized it’s going to use the tools available to it to obtain compliance with the subpoena — or else.


Meadow’s attorney sent a massively ballsy op-ed to the Washington Post as a rebuttal to the committee’s subpoena:

Opinion: In abandoning executive privilege, Biden rejects 200 years of history

George J. Terwilliger III is a partner at McGuireWoods LLP in Washington and previously served as deputy attorney general.

As counsel for former White House chief of staff Mark Meadows, I was surprised and disappointed to receive a letter Thursday informing me that the Biden administration will be the first in history not to resist a congressional subpoena for testimony from a senior White House aide. …

WaPo treated this like any other conservative’s op-ed; no caveat this op-ed may be tampering with an investigation.

Rather interesting how Terwilliger was able to get a 789-word op-ed published at 3:30 p.m. on the same day the January 6 committee issued its letter. This isn’t the first time Terwilliger has opined in WaPo about someone involved in the January 6 insurrection though Terwilliger’s last op-ed was a defense of former AG Bill Barr’s interference in Roger Stone’s sentencing. Can’t have the GOP’s senior ratfucker excessively punished during an election season after all.

Former Nixon White House counsel John Dean didn’t think much of Terwilliger’s op-ed:


I think I’d put my money behind Dean as to which of these two attorneys has a better grasp on the limits of executive privilege.

But it gets worse for Meadows since the soon-to-be-released book about the January 6 insurrection by reporter Jonathan Karl revealed yet another memo outlining steps to effect the autogolpe overthrowing the election.

Meadows had forwarded by email to then-VP Mike Pence’s chief of staff Marc Short a memo prepared by attorney Jennifer Ellis outlining the steps Pence needed to take to avoid certifying the election for Biden until a new alternate slate of electors for Trump could be introduced from just enough states to flip the election to Trump.

A rather pathetic carrot offered to Pence with the stick to follow on the day of the insurrection — a threat of violence and possible assassination by mob because Pence didn’t take the memo as a White House-approved order.

Looks like the number of questions Meadows must now answer has grown even longer.

~ 0 ~

The title of this post comes from an aphorism attributed to a favorite writer, Dorothy Parker: “Beauty is only skin deep, but ugly goes clean to the bone.” Meadows may be more physically attractive and better dressed than Bannon but they’re both deeply ugly people who represent an existential threat to American democracy.

~ ~ ~

UPDATE-1 — 10:00 P.M. ET —

Yeesh.

For a guy who was simply asked to appear before a House committee to answer some questions about what happened leading up to and on the day of January 6, this guy sure wants his audience to believe he’s being uniquely singled out for harassment by a president who both believes in the equal but separate powers inherent to each branch of government, and who believes the DOJ should be independent of the White House. Perhaps Bannon’s projecting since he was just fine with Trump’s DOJ acting like his personal police force.

Bannon could have just shown up, told the committee on a question by question basis, “I can’t answer that because my lawyer said it’s under executive privilege as Trump has claimed,” and simply gone about his day, coming off cool and collected like someone with nothing to hide.

But no, Bannon has to make a big scene because it’s a grift for more money; you know when he said “Stand by,” he will likely elaborate soon saying, “Stand by, because I’m going to ask you for help soon,” and then he’ll point to a link for donations for his legal fund.

Wow, he doesn’t even need to claim he’s building a border wall this time.

Happy ‘PRESIDENTIAL HARASSMENT’ Day! [UPDATE-5]

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

We’ve been waiting too long for this day.

Not this day:

But this day:

UPDATE-1 — 11:05 a.m. ET —

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

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

UPDATE-2 — 11:43 a.m. ET —

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

Fingers crossed.

UPDATE-3 — 11:58 a.m. ET —

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

This will have to work its way through the system.

UPDATE-4 — 2:08 p.m. ET —

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

A Tale of Celebrity Bon Vivant Civil Servants and Access Journalism

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Screen Shot 2015-07-02 at 12.27.12 PMThere is a distinct problem in this country with excessive inbreeding of politicians, lobbyists and journalists. In a country where so many are now ruled by so few in power, it is becoming, if not already become, the biggest threat to American democracy. I would add in corporations, but, heck, who do you think the politicians, lobbyists and journalists represent at this point?

Now, corporations and their money through their mouthpiece lobbyists have long had a stranglehold on politics, whether through the corps themselves or their wealthy owners. But the one saving mechanism has historically been claimed to be the “Fourth Estate” of the American press who were there on behalf of the people as a check on power. But what if the Fourth Estate becomes, in fact, part of the power? What then?

What if the crucial check on federal and state power is by journalists who are little more than stenographers clamoring for access and/or co-opted social friends and elites with the powers that be? What if the sacrosanct civil servants of this country are nothing but Kardashian like shills out for a free gilded ride before they leave office to cash in with private sector riches befitting their holiness?

Golly, if only there was an example of this incestuous degradation. Oh, wait, get a load of this just put up by Kate Bennett’s KGB File at Politico:

In a generally stay-at-home administration, one member of the Obama Cabinet is proving to be the toast of the town. Jeh Johnson, the oh-so-serious-on-the-outside secretary of Homeland Security, is fast becoming Washington’s No. 1 social butterfly, dining out at posh restaurants like CityCenter’s DBGB, as he did last week with a small group that included Amy Klobuchar, Steny Hoyer, CNN’s Jim Sciutto, the New York Times’ Ashley Parker, author Aaron Cooley, and lobbyist Jack Quinn and his wife Susanna.

For a guy who’s been running a 24/7 war against terror since 2013, Johnson seems to have a lot of time to trip the light fantastic. He can often be seen enjoying regular catch-up sessions with BFF Wolf Blitzer at Café Milano (back table, naturally); and mingling at black-tie soirées, such as the Kennedy Center Spring Gala, the Opera Ball, or a champagne-fueled VIP garden party at Mount Vernon to toast French-American relations, all of which Johnson attended—and stayed at beyond the requisite cocktail-hour schmooze.
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“There’s rarely an invitation he’ll turn down,” says an aide to Johnson, who prefers to remain anonymous, of his boss’s penchant for spending three-to-four evenings a week at social functions — and actually enjoying them.

I am not going to bother to dissect that, it speaks all too clearly for itself. And it is hard to figure which is more pukeworthy, the bon vivant civil servant or the elitism displayed by the supposed watcher last bastion journalists. It is all of the same cloth.

What’s wrong in Washington DC? Here you go. When the pathology on the boneyard of American democracy is run, this vignette will appear.

Maybe this is why Tom Vilsack could find a spare couple of hours out of one of his days to explain in a deposition why he and the Obama Administration knee jerkily demanded Shirley Sherrod’s resignation based upon a crank fraudulent video by a schlock like Andrew Breitbart.

Because “Executive Privilege” now means “Privileged Executives” who can party all night with their elitist journalistic pals and screw the rest of the government, and people it serves, during the day. Just like the Founders envisioned obviously.