As I’ve noted repeatedly, there should be far more attention to the fact that right wing Governors are forcing members of their National Guard to leave their homes, their families, and their jobs to avenge Ed “Big Balls” Coristine, the privileged white kid with ties to criminal hackers who allegedly got assaulted when out past 3AM one night. Most are sending their own constituents away from their homes to fight crime, allegedly, in a safer place than their own home.
And now, they’re doing so to avenge a guy accused of potential misconduct that may put their own privacy at risk.
NYT was the first to report on a new whistleblower complaint, from Social Security’s Chief Data Officer, Chuck Borges, alleging that DOGE boys created a live copy of the entire Social Security database. Specifically, the complaint alleges:
When DOGE personnel were given access to Social Security data in mid-March, they had equipment pin access (meaning actions could not be traced to one user) and write access, potentially violating laws protecting IRS data.
After Judge Ellen Lipton Hollander imposed a Temporary Restraining Order on DOGE access on March 20, DOGE almost immediately restored — and expanded — access to Social Security data, potentially exposing those who granted access to CFAA hacking charges.
After SCOTUS lifted the preliminary injunction on this data, DOGE created their own replica of SSA’s Numerical Identification System on an insecure server.
A risk assessment of recreating a live Social Security database described the catastrophic risk involved.
Developers (presumably DOGE) planned to import NUMIDENT into the cloud, and because AWS-ACI is an extension of the SSA network, any other SSA production data and PII could also be imported; “unauthorized access to the NUMIDENT would be considered catastrophic impact to SSA beneficiaries and SSA programs” [emphasis Borges’];
Since earlier this month, Borges has been trying to understand the impact of that live replica database. Those with access — including Big Balls, but also Aaram Moghaddassi, who first created the replica copies — refused to respond to his questions. What answers he did get only confirmed his concerns. And he learned the the lawyers were instructing people not to answer his questions.
That same day, in response to Mr. Borges’ August 8, 2025 request for information about concerns raised, a CIO employee confirmed that while two cloud access accounts owned by Aaram Moghaddassi were created per SSA policy, they are not managed by the Division of Infrastructure Services (DIS), are self-administered, and include access to both test and live data environments. 67 Also on August 11, 2025 in response to the same August 7, 2025 request from Mr. Borges, another CIO employee provided the July 15, 2025 PATO and the June 25, 2025 approval by Russo of the NUMIDENT data transfer.
This information, while responsive to Mr. Borges’ request for information regarding data security concerns, serves to support Mr. Borges’ reasonable belief that the creation of the DOGE specific, self-administered cloud environment lacking independent security controls and hosting a copy of NUMIDENT constitutes an abuse of authority, gross mismanagement, substantial and specific threat to public health and safety, and potentially violation of law, rule, or regulation.
Moreover, to date, Mr. Borges has not received a response to his August 7, 2025 request for information from Coristine, Solly, and Tyquiengco. Nor has he received information to indicate that the cloud environment hosting the American public’s NUMIDENT data is protected by best practice and industry standard independent security controls. This leaves Mr. Borges with the reasonable belief that the NUMIDENT data is at risk of exposure, and without information necessary to effectuate his responsibilities as CDO.
Furthermore, Mr. Borges is aware that the Office of General Counsel has advised employees not to respond to his inquiries.68 Such restriction on information to the CDO puts Mr. Borges in an untenable position inhibiting his ability to effectuate the responsibilities of his role
When Justice Ketanji Brown Jackson dissented from lifting the preliminary injunction in June, she talked about how badly the Court was skewing relative harm, granting DOGE access — including to people like Big Balls — even while privacy law protected the data.
Just last week, I wrote about the requirements for granting stay applications and, in particular, how this Court’s emergency-docket practices were decoupling from the traditional harm-reduction justification for equitable stays. See Noem, 605 U. S., at ___ (slip op., at 5). With today’s decision, it seems as if the Court has truly lost its moorings. It interferes with the lower courts’ informed and equitable assessment of how the SSA’s data is best accessed during the course of this litigation, and it does so without any showing by the Government that it will actually suffer concrete or irreparable harm from having to comply with the District Court’s order.
[snip]
Stepping back to take a birds-eye view of the stay request before us, the Government’s failure to demonstrate harm should mean that the general equity balance tips decisively against granting a stay. See Noem, 605 U. S., at ___ (slip op., at 4). On the one hand, there is a repository of millions of Americans’ legally protected, highly sensitive information that—if improperly handled or disseminated—risks causing significant harm, as Congress has already recognized. On the other, there is the Government’s desire to ditch the usual protocols for accessing that data, before the courts have even determined whether DOGE’s access is lawful. In the first bucket, there is also the state of federal law, which enshrines privacy protections, and the President’s constitutional obligation to faithfully execute the laws Congress has passed. This makes it not at all clear that it is in the public’s interest for the SSA to give DOGE staffers unfettered access to all Americans’ non-anonymized data before its entitlement to such access has been established, especially when the SSA’s own employees have long been subject to restrictions meant to protect the American people.
John Roberts and his Republican colleagues have granted a kid with ties to criminal hackers, Ed “Big Balls” Coristine, live access to every American’s Social Security data.
And Jeanine Pirro thinks she should look to the streets of DC to find crime.
Share this entry
https://www.emptywheel.net/wp-content/uploads/2020/01/Roberts.jpeg17051079emptywheelhttps://www.emptywheel.net/wp-content/uploads/2016/07/Logo-Web.pngemptywheel2025-08-26 15:00:452025-08-27 14:27:16Amid Hunt for Crime in DC, Whistleblower Implicates Ed “Big Balls” Coristine and John Roberts
Every bad thing that has happened during this lawless administration can be traced to the execrable decision of John Roberts and the Trump Clique in Trump v. US. That certainly includes the rendition of Kilmar Albrego Garcia to a notorious prison in El Salvador; he’s been moved to another prison there. Trump and his henchmen believe that they can lever that decision to justify their outrageous goals. Step one: claim there’s an emergency. Step two: issue a proclamation. Step Three: everything is now just the energetic, vigorous executive dealing with the emergency.
In this case, the “emergency” is the invasion of the US by gangs from Venezuela under the control of an evil dictator. Step two is the invocation of the Alien Enemies Act. Step three is the sudden rendition of several hundred people to foreign prisons, denial of due process required by the Constitution and laws of the US, demands that the Department of Justice defend the action without regard to ethical obligations of all lawyers, and refusal to comply with Court orders. Albrego Garcia isn’t a member of the evil gang but so what? Mistakes happen when you’re being vigorous and energetic.
When Roberts and the Trump Clique saved Trump from accountability in Trump v. US, they never imagined that he might turn on them and on the judiciary so ferociously that the wimp Roberts was forced to issue a limp statement defending the rule of law and the judiciary.
Harvie Wilkinson of the Fourth Circuit is trying to show Roberts his error. In his order slapping down the government’s attempt to avoid accountability for its illegal abduction of Abrego Garcia. Wilkinson writes:
“Energy in the [E]xecutive” is much to be respected. FEDERALIST NO. 70, at 423 (1789) (Alexander Hamilton) (Clinton Rossiter ed., 1961). It can rescue government from its lassitude and recalibrate imbalances too long left unexamined. The knowledge that executive energy is a perishable quality understandably breeds impatience with the courts. Courts, in turn, are frequently attuned to caution and are often uneasy with the Executive Branch’s breakneck pace.
And the differences do not end there. The Executive is inherently focused upon ends; the Judiciary much more so upon means. Ends are bestowed on the Executive by electoral outcomes. Means are entrusted to all of government, but most especially to the Judiciary by the Constitution itself.
For Wilkinson this is prelude to a discussion of the need for respect between the executive and the judiciary, for which he makes an extraordinary plea.
The reference to Federalist No. 70 is a polite call-back to Trump v. US:
The Framers “sought to encourage energetic, vigorous, decisive, and speedy execution of the laws by placing in the hands of a single, constitutionally indispensable, individual the ultimate authority that, in respect to the other branches, the Constitution divides among many.” Clinton v. Jones, 520 U. S. 681, 712 (1997) (Breyer, J., concurring in judgment). They “deemed an energetic executive essential to ‘the protection of the community against foreign attacks,’ ‘the steady administration of the laws,’ ‘the protection of property,’ and ‘the security of liberty.’ ” Seila Law, 591 U. S., at 223–224 (quoting The Federalist No. 70, p. 471 (J. Cooke ed. 1961) (A. Hamilton)). The purpose of a “vigorous” and “energetic” Executive, they thought, was to ensure “good government,” for a “feeble executive implies a feeble execution of the government.” Id., at 471–472.
Roberts, whether out of naiveté or ideological fervor, in substance removed the possibility of judicial control over egregious violations of law. Sonia Sotomayor, writing for the minority, pointed to the mendacity of Roberts’ citation of Federalist No. 70:
The majority’s single-minded fixation on the President’s need for boldness and dispatch ignores the countervailing need for accountability and restraint. The Framers were not so single-minded. In the Federalist Papers, after “endeavor[ing] to show” that the Executive designed by the Constitution “combines ,,, all the requisites to energy,” Alexander Hamilton asked a separate, equally important question: “Does it also combine the requisites to safety, in republican sense, a due dependence on the people, a due responsibility?” The Federalist No. 77, p. 507 (J. Harvard Library ed. 2009). The answer then was yes, based in part upon the President’s vulnerability to “prosecution in the common course of law.” Ibid. The answer after today is no.
Reading Wilkinson in this light shows how he is telling Roberts and the Trump Clique they screwed up and must remedy that by asserting the requirement that energy be restrained and explaining how that restraint is to be enforced. In her dissent in Trump v. US, Ketanji Brown Jackson explains what the idiot majority missed:
Here, I will highlight just two observations about the results … . First, the Court has unilaterally altered the balance of power between the three coordinate branches of our Government as it relates to the Rule of Law, aggrandizing power in the Judiciary and the Executive, to the detriment of Congress. Second, the majority … undermines the constraints of the law as a deterrent for future Presidents who might otherwise abuse their power, to the detriment of us all.
Wilkinson agrees with Jackson at least on the first point. The executive is focused on ends, he says, while the judiciary is focused on means to the end. He says means are set by all three branches of government. He thinks the judiciary is primarily responsible for insuring that the executive is limited to the means provided by law, which leads him to put the judiciary first. But he implicitly acknowledges the role of the legislature in setting allowable means through laws. This too follows from both Federalist Nos. 70 and 77, which emphasize the power of the people acting through popularly elected legislatures as the protector of the safety of the people from tyrants.
Others have pointed out that Wilkinson is a conservative, and a respected jurist. His opinion should be read as a direct challenge from Roberts’ own ideological team to the foolish decision in Trump v. US. With the astonishing action of SCOTUS in the wee hours today, that message may be starting to sink in for some members of the Trump Clique.
Share this entry
https://www.emptywheel.net/wp-content/uploads/2025/04/J._Harvie_Wilkinson_cropped-1.jpg200156Ed Walkerhttps://www.emptywheel.net/wp-content/uploads/2016/07/Logo-Web.pngEd Walker2025-04-19 14:17:372025-04-19 14:17:37Harvie Wilkinson Tries To Salvage Trump v. US
The Supreme Court intervened in two cases pertaining to Kristi Noem’s March 15 botched deportation effort yesterday.
First, John Roberts paused review of Kilmar Abrego Garcia’s case. And, shortly thereafter, the entire court ended James Boasberg’s Temporary Restraining Order on deportations under the Alien Enemies Act (captioned as JGG v. Trump), while holding that detainees must have access to habeas review before being deported.
Contrary to what you’re seeing from the Administration (and, frankly, many Trump critics), neither of these rulings settles Trump’s deportation regime, though the JGG opinion extends SCOTUS’ real corruption of rule of law in very ominous fashion (see Steve Vladeck on that, including his observation that just weeks after Trump called to impeach Boasberg, “Roberts has overruled Boasberg, in a move that Trump will view as sweet vindication”).
I’d like to consider them instead as means to help Kristi Noem clean up after her own incompetence. From a legal standpoint, there’s nothing (yet) unusual about the pause in Abrego Garcia’s case. Indeed, the timing of it may undermine the newly confirmed John Sauer’s efforts to win the case, as I’ll lay out below. As such it may interact in interesting way with the JGG opinion.
The JGG opinion intervenes in a TRO (which shouldn’t be reviewable at all) to take the case out of Judge James Boasberg’s hands the day before he was set to hear arguments on a preliminary injunction. That’s what Ketanji Brown Jackson laid out in her dissent: this was a naked intervention to prevent Boasberg from looking more closely.
I write separately to question the majority’s choice to intervene on the eve of the District Court’s preliminary-injunction hearing without scheduling argument or receiving merits briefing. This fly-by-night approach to the work of the Supreme Court is not only misguided. It is also dangerous.
The President of the United States has invoked a centuries-old wartime statute to whisk people away to a notoriously brutal, foreign-run prison. For lovers of liberty, this should be quite concerning. Surely, the question whether such Government action is consistent with our Constitution and laws warrants considerable thought and attention from the Judiciary. That was why the District Court issued a temporary restraining order to prevent immediate harm to the targeted individuals while the court considered the lawfulness of the Government’s conduct. But this Court now sees fit to intervene, hastily dashing off a four-paragraph per curiam opinion discarding the District Court’s order based solely on a new legal pronouncement that, one might have thought, would require significant deliberation.
Jackson notes that, as a result, key parts of this legal dispute will not be fully briefed, as Korematsu was.
At least when the Court went off base in the past, it left a record so posterity could see how it went wrong. See, e.g., Korematsu v. United States, 323 U. S. 214 (1944). With more and more of our most significant rulings taking place in the shadows of our emergency docket, today’s Court leaves less and less of a trace. But make no mistake: We are just as wrong now as we have been in the past, with similarly devastating consequences. It just seems we are now less willing to face it.
The JGG opinion is silent about what happens to Boasberg’s contempt inquiry. While there are people, such as gay hair stylist Andry José Hernández Romero, whose deportation to El Salvador may have violated Judge Boasberg’s TRO and who — since he’s no longer in US custody — may not be stuck challenging their deportation in South Texas, it’s not clear whether any of the men who’ve been deported will be able to sustain the inquiry.
As for everyone else, the per curium opinion rebukes Trump’s original legal stance, which argued that Trump could declare a war and Marco Rubio could declare a bunch of people to be terrorists based on little more than tattoos and via that process deport them to slavery in El Salvador (though you wouldn’t know that from the Xitter posts of virtually everyone involved).
AEA detainees must receive notice after the date of this order that they are subject to removal under the Act. The notice must be afforded within a reasonable time and in such a manner as will allow them to actually seek habeas relief in the proper venue before such removal occurs.
For all the rhetoric of the dissents, today’s order and per curiam confirm that the detainees subject to removal orders under the AEA are entitled to notice and an opportunity to challenge their removal. The only question is which court will resolve that challenge. For the reasons set forth, we hold that venue lies in the district of confinement.
So courts, including SCOTUS, might yet find that Trump was totally unjustified in declaring his own little war. Courts, including SCOTUS, might yet rule Trump’s use of the AEA beyond the pale. But the legal review of that decision will take place in the Fifth Circuit, where such an outcome is far less likely than in DC.
Indeed, this decision might will be an effort to outsource the really awful work of sanctioning egregious constitutional violations to the circuit most likely to do so.
This was an entirely tactical decision, in my opinion. A gimmick. An unprecedented intervention in a TRO to prevent Boasberg from issuing a really damaging ruling in DC, yet one that affirmed thin due process along the way.
Meanwhile, consider how Abrego Garcia’s fate might complicate all this. As noted above, Roberts’ intervention, thus far, is not unusual. Indeed, by pausing the decision, Roberts made way for Abrego Garcia to submit a response, which corrected some of the false claims that John Sauer made in his filing, his first after being sworn in as Solicitor General. (Erwin Chemerinsky also submitted an amicus.)
Having held that detainees should have access to habeas before deportation, one would think that would extend to Abrego Garcia, who was not given time to challenge his deportation to El Salvador.
The government’s concession that the AEA detainees should get habeas review provided a place for SCOTUS to backtrack to without directly confronting Trump’s power grab. But consider how AUSA Erez Reuveni’s concessions, his admission that DHS knew there was an order prohibiting Abrego Garcia’s deportation to El Salvador, limit SCOTUS’ ability to do the same. That’s one of two key points the Fourth Circuit — a panel of Obama appointee Stephanie Thacker, Clinton appointee Robert King, and Reagan appointee Harvie Wilkinson — made in its opinion, issued at about the same time as Roberts halted the order. Just as the government ultimately conceded that the AEA detainees were entitled to due process, the government conceded that Abrego Garcia should not have been deported to El Salvador.
As the Government readily admits, Abrego Garcia was granted withholding of removal — “It is true that an immigration judge concluded six years ago that Abrego Garcia should not be returned to El Salvador.” Mot. for Stay at 16; see also Cerna Declaration at 53 (“ICE was aware of this grant of withholding of removal at the time [of] AbregoGarcia’s removal from the United States.”).3 And “the Government had available a procedural mechanism under governing regulations to reopen the immigration judge’s prior order, and terminate its withholding protection.” Mot. for Stay at 16–17. But, “the Government did not avail itself of that procedure in this case.” Id.; see Dist. Ct. Op. at 4 (Mr. Reuveni: “There’s no dispute that the order [of removal] could not be used to send Mr. Abrego Garcia to El Salvador.” (quoting Hr’g Tr., Apr. 4, 2025, at 25:6–7)); see also Guzman Chavez, 594 U.S. at 531 (explaining that a non-citizen who has been granted withholding of removal may not be removed “to the country designated in the removal order unless the order of withholding is terminated”). Based on those facts, the Government conceded during the district court hearing, “The facts — we concede the facts. This person should — the plaintiff, Abrego Garcia, should not have been removed. That is not in dispute.” S.A. 98 (emphasis supplied).4
3 Consistent with this reality, the Government attorney appearing before the district court at the April 4 hearing candidly admitted that no order of removal is part of the record in this case. Dist. Ct. Op. at 14 (citing Hr’g Tr. Apr. 4, 2025, at 20 (counsel admitting no order of removal is part of the record), and id. at 22 (counsel confirming that “the removal order” from 2019 “cannot be executed” and is not part of the record)).
4 Of note, in response to the candid responses by the Government attorney to the district court’s inquiry, that attorney has been put on administrative leave, ostensibly for lack of “zealous[] advocacy.” Evan Perez, Paula Reid and Katie Bo Lillis, DOJ attorney placed on leave after expressing frustration in court with government over mistakenly deported man, CNN (Apr. 5, 2025, 10:40 PM), https://www.cnn.com/2025/04/05/politics/doj-attorney-leave-maryland-father-deportation/index.html; see also Glenn Thrush, Justice Dept. Lawyer Who Criticized Administration in Court Is Put on Leave, New York Times (Apr. 5, 2025, 5:41 PM), https://www.nytimes.com/2025/04/05/us/politics/justice-dept-immigration-lawyer-leave.html. But, the duty of zealous representation is tempered by the duty of candor to the court, among other ethical obligations, and the duty to uphold the rule of law, particularly on the part of a Government attorney. United States Department of Justice, Home Page, https://www.justice.gov/ (last visited Apr. 6, 2025) (“Our employees adhere to the highest standards of ethical behavior, mindful that, as public servants, we must work to earn the trust of, and inspire confidence in, the public we serve.”). [links added]
With footnote 4, the Fourth Circuit established that DOJ was attempting to retaliate against Erez Reuveni and his supervisor, August Flentje, because Reuvani told the truth. (See also Reuters, which was the first outlet I saw with the story, and ABC, the first to report that Flentje was placed on leave along with Reuveni.)
I was struck by the retaliation in real time, because in fact Reuveni did what a slew of other attorneys have had to do, confess he didn’t know the answers to obvious questions. But something — perhaps Sauer’s review that earlier fuckups may limit his ability to get relief at SCOTUS — led DOJ to overreact in this case.
That is, by retaliating against Reuveni so egregiously, Pam Bondi’s DOJ (Todd Blanche is reportedly the one who made the order, but it also happened after Sauer may have started reviewing the case), DOJ may have made it more difficult for SCOTUS to engage in similar gimmicks down the road.
The Fourth Circuit also anticipated that DOJ would lie about Abrego Garcia’s request to be returned.
5 To the extent the Government argues that the scope of the district court’s order was improper because Abrego Garcia never asked for an order facilitating his return to the United States, that is incorrect. See S.A. 88 (arguing that the district court has “jurisdiction to order [the Government] to facilitate his return, and what we would like is for the Court to enter that order”); see also S.A. 74–75; 85–87.
In opposing a stay of the injunction in the court of appeals, respondents insisted that they did “request[]” the injunction that the district court entered. Resp. C.A. Stay Opp. 9. But contrary to respondents’ characterization, the court did not merely order the United States to “facilitate” Abrego’s return, ibid.; it ordered the United States actually to “effectuate” it, App., infra, 79a. If there were any doubt on that score, the court’s memorandum opinion eliminated it, by reiterating that its injunction “order[s]” that “Defendants return Abrego Garcia to the United States.” Id. at 82a (emphasis added). Again, respondents clearly disclaimed such a request in repeatedly telling the court that it “has no jurisdiction over the Government of El Salvador and cannot force that sovereign nation to release Plaintiff Abrego Garcia from its prison.” Id. at 42a, 44
Ultimately, Sauer may get his proposed solution — that Abrego Garcia gets moved from El Salvador to someplace else. But before that happens, he’ll have to account for the Fourth Circuit ruling that there’s no convincing evidence that Abrego Garcia is the terrorist Kristi Noem claims he is and that DOJ itself laid out cause to return him to the US.
The Supreme Court exhibited a willingness to engage in a gimmick decision to bail Trump out of one fuckup Kristi Noem made the weekend of March 15, to ignore Judge Boasberg’s order and deport a bunch of men with tattoos into slavery. It has not yet bailed Trump out of the other fuckup, including Abrego Garcia on one of those planes. Thus far, Trump has made things worse by retaliating against Reuveni for refusing to lie.
Which just makes SCOTUS’ challenge — to invent a gimmick to bail Trump out — all the more challenging.
Update: Predictably, in his reply, Sauer blames Reuveni for not being told some unspecified sensitive information that might excuse the defiance of a judge’s order.
Respondents (Opp. 10-11) cite statements by the attorney who was formerly representing the government in this case, who told the district court that he “ask[ed] my clients” why they could not return Abrego Garcia and felt that he had not “received * * * an answer that I find satisfactory.” They likewise cite his statements that “the government made a choice here to produce no evidence” and that agencies “understand that the absence of evidence speaks for itself.” Opp. 12 (citing SA120, SA128). Those inappropriate statements did not and do not reflect the position of the United States. Whether a particular line attorney is privy to sensitive information or feels that whoever he spoke with at client agencies gave him sufficient answers to satisfy whatever personal standard he was applying cannot possibly be the yardstick for measuring the propriety of this extraordinary injunction.
Real judges would haul Sauer before them and insist he deliver that sensitive information withheld from the AUSA. Sadly, the Roberts court is well beyond that.
Judge Tanya Chutkan was clearly ready to get the prosecution of Donald Trump back on the road.
The day after she got the SCOTUS mandate from its immunity ruling, she set a deadline for a status report and status conference, and denying (for now, until all issues of immunity are settled) Trump’s challenge to the application of 18 USC 1512(c)(2).
ORDER as to DONALD J. TRUMP: Setting status conference for August 16, 2024 at 10:00 A.M. in Courtroom 9; requiring joint status report by August 9, 2024; denying without prejudice Defendant’s 114 Motion to Dismiss the Indictment Based on Statutory Grounds; and staying briefing deadlines for the Government’s 191 Motion in Limine and Motion for CIPA Section 6(a) Hearing. Signed by Judge Tanya S. Chutkan on 8/3/2024.
But yesterday, Jack Smith asked for more time, citing the need to consult with other parts of DOJ before proposing a way forward.
The Government continues to assess the new precedent set forth last month in the Supreme Court’s decision in Trump v. United States, 144 S. Ct. 2312 (2024), including through consultation with other Department of Justice components. See 28 C.F.R. § 600.7(a) (“A Special Counsel shall comply with the rules, regulations, procedures, practices and policies of the Department of Justice,” including “consult[ing] with appropriate offices within the Department for guidance with respect to established practices, policies and procedures of the Department . . . .”). Although those consultations are well underway, the Government has not finalized its position on the most appropriate schedule for the parties to brief issues related to the decision. The Government therefore respectfully requests additional time to provide the Court with an informed proposal regarding the schedule for pretrial proceedings moving forward. The defense does not object to the Government’s request for an extension.
Accordingly, the Government requests that the Court enter an order requiring the parties to submit another joint status report by Friday, August 30.
Of course, no one knows why Smith might need the delay.
By far the most obvious, however, has to do with how DC USAO plans to apply 18 USC 1512(c)(2) going forward after SCOTUS limited the application of obstruction charges in Fischer to matters pertaining to the evidence. Two of Trump’s charges are obstruction, one charged as a conspiracy, the other individually.
Thus far, DOJ has dealt with the crime scene cases implicating obstruction on a case by case basis. Those before Carl Nichols, the judge whose outlier ruling was adopted by SCOTUS, are getting dismissed. But some others are getting delayed, still others are getting recharged under 18 USC 231 (rioting). Sentencing involving obstruction are likewise being delayed.
As Justice Ketanji Brown Jackson noted in her concurring opinion on the obstruction ruling, because the vote certification involved the electoral certifications themselves, some of those crime scene cases might survive this ruling.
That official proceeding plainly used certain records, documents, or objects—including, among others, those relating to the electoral votes themselves. See Tr. of Oral Arg. 65–67. And it might well be that Fischer’s conduct, as alleged here, involved the impairment (or the attempted impairment) of the availability or integrity of things used during the January 6 proceeding “in ways other than those specified in (c)(1).” Ante, at 8. If so, then Fischer’s prosecution under §1512(c)(2) can, and should, proceed. That issue remains available for the lower courts to determine on remand.
DOJ has always argued this was possible. But it’s likely only possible, if at all, for those defendants who knew the import of the certificates themselves.
For Trump, however, the continued exposure is far broader (as Justice Amy Coney Barrett noted in her concurrence on the immunity ruling), because by orchestrating the fake elector certificates, Trump created a fraudulent document.
And DOJ needs to figure out how these two potential bases will interact going forward. Likely, DC USAO also has to consult with the Solicitor General’s Office, to figure out what they think will survive appeal, including how an obstruction charge built on the fake electors would survive.
So that’s probably a big cause of the delay: DOJ, as a whole, has to settle on how they’ll deal with obstruction going forward in light of Fischer. Charges for some crime scene defendants may depend on how Smith approaches obstruction charges against Trump.
But I’m mindful of something else. Jack Smith asked for a delay until August 30, three weeks plus a day from the original deadline. That’s the last day of the month — and that may be the only reason Smith asked for that date.
It’s also probably the last day that DOJ would permit charging anyone political before the election. That is, as has happened with some crime scene defendants, DOJ may be considering recharging this case (or charging others against whom some of these charges would stick).
And, aside from the possibility of charging a bunch of Trump’s co-conspirators, that allows for one very provocative possibility.
Justice John Roberts’ explicitly said that an acquittal on impeachment doesn’t rule out charging that same count criminally.
Impeachment is a political process by which Congress can remove a President who has committed “Treason, Bribery, or other high Crimes and Misdemeanors.” Art. II, §4. Transforming that political process into a necessary step in the enforcement of criminal law finds little support in the text of the Constitution or the structure of our Government
So if Jack Smith originally avoided the insurrection charge against Trump to avoid any claim Trump’s impeachment acquittal ruled out such a charge, he has no such worry now.
As the per curium opinion in the Colorado disqualification case noted, insurrection remains on the books (I need to refer back to the hearing transcript, but someone like Justice Sammy Alito made the same observation at the hearing).
And the Confiscation Act of 1862, which predated Section 3, effectively provided an additional procedure for enforcing disqualification. That law made engaging in insurrection or rebellion, among other acts, a federal crime punishable by disqualification from holding office under the United States. See §§2, 3, 12 Stat. 590. A successor to those provisions remains on the books today. See 18 U. S. C. §2383.
Recharging this to include insurrection is the exact equivalent to what DOJ is doing elsewhere, replacing an obstruction charge with a rioting charge. And it would be consistent with the inclusion of a Proud Boy prosecutor on the Trump case, which I suspect to have occurred.
Again, by far the most likely explanation for the delay is that DOJ is just trying to figure out what to do with 1512 charges, against Trump and all the crime scene defendants.
But the three SCOTUS opinions — immunity, 1512, and 14th Amendment — explicitly leave this possibility. The immunity provision does not exclude charges on which Trump has been acquitted in an impeachment. Elsewhere, DOJ is replacing obstruction with rioting charges. And the 14th Amendment ruling explicitly noted that Insurrection remains good law.
So it is a possibility — and a possibility that would have to be considered by August 30.
Share this entry
https://www.emptywheel.net/wp-content/uploads/2021/02/Screen-Shot-2021-02-10-at-9.37.01-PM.png9741708emptywheelhttps://www.emptywheel.net/wp-content/uploads/2016/07/Logo-Web.pngemptywheel2024-08-09 06:44:122024-08-09 07:13:30Jack Smith Asks for an Extension
Chief Justice John Roberts cloaked his radical opinion granting Presidents broad immunity in the Farewell Address of George Washington, normally celebrated as the codification of the peaceful cession of power, the humility of the role of the President.
Our first President had such a perspective. In his Farewell Address, George Washington reminded the Nation that “a Government of as much vigour as is consistent with the perfect security of Liberty is indispensable.” 35 Writings of George Washington 226 (J. Fitzpatrick ed. 1940). A government “too feeble to withstand the enterprises of faction,” he warned, could lead to the “frightful despotism” of “alternate domination of one faction over another, sharpened by the spirit of revenge.” Id., at 226–227. And the way to avoid that cycle, he explained, was to ensure that government powers remained “properly distributed and adjusted.” Id., at 226.
It is these enduring principles that guide our decision in this case.
But Roberts instead focuses on Washington’s warning against factionalism — and from there, to a claim to honor separation of powers.
Never mind that, as Justice Ketanji Brown Jackson notes, Roberts’ opinion instead radically altered the balance of powers, which (adopting Washington’s logic) will arguably feed factionalism.
It is important to note that the majority reframes the immunity question presented here as a separation of powers concern that is compelled by Article II—as if what is being asked is whether Congress can criminalize executive prerogatives. See, e.g., ante, at 6–7; see also ante, at 1– 2 (BARRETT, J., concurring in part). But that is not anywhere close to what is happening in this case. No one maintains that Congress has passed a law that specifically criminalizes the President’s use of any power that the Constitution vests exclusively in the Executive, much less that the Judiciary is being conscripted to adjudicate the propriety of such a statute. To the contrary, the indictment here invokes criminal statutes of general applicability that everyone is supposed to follow, both on and off the job. So, the real question is: Can the President, too, be held accountable for committing crimes while he is undertaking his official duties? The nature of his authority under Article II (whether conclusive and preclusive, or shared with Congress, or otherwise) is entirely beside the point.
Plus, by my read, the only separation of powers that Roberts really cares about is that between one Executive and his successor. Roberts is, in actuality, usurping the Article II authority of DOJ to prosecute crimes exclusively in the case of a former President, adopting that power to the judiciary.
Roberts’ opinion does that even while it permits the sitting President to use the trappings of DOJ against everyone but his predecessor, with personal presidential involvement. All the abuses of the Trump DOJ? The revenge prosecution of Greg Craig, Michael Sussmann, and Igor Danchenko? All cool with John Roberts. The use of DOJ resources to have an FBI informant frame Joe Biden? Still totally cool. Not revenge. Just the President doing what he’s empowered to do.
But it’s that more cherished precedent Washington set, of the transfer of power rather than kings, that Roberts has done real violence to.
Consider what happened to Blassingame — the DC Circuit opinion holding that a former President can be sued for actions taken in his role as candidate for office — in this opinion.
Blassingame was mentioned repeatedly in the argument of this case, 16 times, often when a Republican who joined Roberts’ opinion today queried John Sauer if he agreed with it.
It came up when Clarence Thomas asked whether Sauer accepted the function of a candidate to be a private act — with which he mostly agreed and then backtracked somewhat.
JUSTICE THOMAS: Mr. Sauer, in assessing the official acts of a president, do you differentiate between the president acting as president and the president acting as candidate?
MR. SAUER: Yes, we do. And we don’t dispute essentially the Blassingame discussion of that.
JUSTICE THOMAS: Okay. Now —
MR. SAUER: But, of course, that has to be done by objective determinations, not by looking at what was the purpose of what you did this, and that’s the most important point there.
It came up when Neil Gorsuch queried Sauer about it (in which case Sauer adopted former Trump White House Counsel Greg Katsas’ more narrow holding on it).
JUSTICE GORSUCH: And then the question becomes, as we’ve been exploring here today a little bit, about how to segregate private from official conduct that may or may not enjoy some immunity, and we — I’m sure we’re going to spend a lot of time exploring that. But the D.C. Circuit in Blassingame, the chief judge there, joined by the panel, expressed some views about how to segregate private conduct for which no man is above the law from official acts. Do you have any thoughts about the test that they came up with there?
MR. SAUER: Yes. We think, in the main, that test, especially if it’s understood through the lens of Judge Katsas’ separate opinion, is a very persuasive test. It would be a great source for this Court to rely on in drawing this line. And it emphasizes the breadth of that test. It talks about how actions that are, you know, plausibly connected to the president’s official duties are official acts. And it also emphasizes that if it’s a close case or it appears there’s considerations on the other side, that also should be treated as immune. Those are the — the aspects of that that we’d emphasize as potentially guiding the Court’s discretion.
Gorsuch would go on to question Dreeben about Blassingame at length.
It came up when John Kavanaugh invited Sauer to rewrite Blassingame, and Sauer largely declined.
JUSTICE KAVANAUGH: Where — where do you think the D.C. Circuit went wrong in how it determined what was official versus what’s personal?
MR. SAUER: Well, I read — I read the opinion below in this particular case as adopting a categorical view. It does not matter, is the logic of their — their opinion because there is no immunity for official acts and, therefore, you know, that’s the end of the story. I don’t really think they went wrong in Blassingame in the civil context when they engaged in the same determination with respect to what’s official and what isn’t official. There, we agree with most of what that opinion said.
And it came up when Sammy Alito asked John Sauer if he’d like an order saying that the President was immune unless there was no possible justification, in which case Sauer raised Blassingame, and Alito shifted from analysis of official and unofficial.
JUSTICE ALITO: But what if it were not — what if it did not involve any subjective element, it was purely objective? You would look objectively at the various relevant factors? MR. SAUER: That sounds to me a lot like Blassingame and especially viewed through the lens of Judge Katsas’ separate opinion, and that may not be different than what we’re proposing to the Court today.
JUSTICE ALITO: Well, Blassingame had to do with the difference between official conduct and private conduct, right?
MR. SAUER: That’s correct. I — I understood the Court to be asking that.
JUSTICE ALITO: No. This — this would apply — and it’s just a possibility. I don’t know whether it’s a good idea or a bad idea or whether it can be derived from the structure of the Constitution or the Vesting Clause or any other source. But this would be applied in a purely objective — on purely objective grounds when the president invokes an official power in taking the action that is at issue?
MR. SAUER: Yes, I believe — the reason I think of Blassingame is because it talks about an objective context-specific determination to winnow out what’s official and what is purely private conduct, and, again, in a — with a strong degree of deference to what — and, therefore, you know, that’s the end of the story. I don’t really think they went wrong in Blassingame in the civil context when they engaged in the same determination with respect to what’s official and what isn’t official. There, we agree with most of what that opinion said.
You might be justified in thinking that Blassingame would be central to today’s ruling, not least because the charged crimes are the same ones as the complaints alleged in Blassingame.
The central holding of Blassingame, however, is gone.
Blassingame appears just three times in the opinion rendered today. Roberts uses it as a limiting factor.
But the breadth of the President’s “discretionary responsibilities” under the Constitution and laws of the United States “in a broad variety of areas, many of them highly sensitive,” frequently makes it “difficult to determine which of [his] innumerable ‘functions’ encompassed a particular action.” Id., at 756. And some Presidential conduct—for example, speaking to and on behalf of the American people, see Trump v. Hawaii, 585 U. S. 667, 701 (2018)—certainly can qualify as official even when not obviously connected to a particular constitutional or statutory provision. For those reasons, the immunity we have recognized extends to the “outer perimeter” of the President’s official responsibilities, covering actions so long as they are “not manifestly or palpably beyond [his] authority.” Blassingame v. Trump, 87
Sonia Sotomayor notes that Roberts has used it as a limiting factor, then notes he has also eliminated any analysis of motive.
In fact, the majority’s dividing line between “official” and “unofficial” conduct narrows the conduct considered “unofficial” almost to a nullity. It says that whenever the President acts in a way that is “‘not manifestly or palpably beyond [his] authority,’” he is taking official action. Ante, at 17 (quoting Blassingame v. Trump, 87 F. 4th 1, 13 (CADC 2023)). It then goes a step further: “In dividing official from unofficial conduct, courts may not inquire into the President’s motives.” Ante, at 18.
Jackson makes a similar observation.
At most, to distinguish official from unofficial conduct, the majority advises asking whether the former President’s conduct was “‘manifestly or palpably beyond [his] authority.’” Ante, at 17 (quoting Blassingame v. Trump, 87 F. 4th 1, 13 (CADC 2023)).
There’s not even much discussion of Trump’s role as a candidate! Roberts raises it, and then says Trump’s electioneering tweets might serve some other purpose.
There may, however, be contexts in which the President, notwithstanding the prominence of his position, speaks in an unofficial capacity—perhaps as a candidate for office or party leader. To the extent that may be the case, objective analysis of “content, form, and context” will necessarily inform the inquiry. Snyder v. Phelps, 562 U. S. 443, 453 (2011) (internal quotation marks omitted). But “there is not always a clear line between [the President’s] personal and official affairs.” Mazars, 591 U. S., at 868. The analysis therefore must be fact specific and may prove to be challenging.
The indictment reflects these challenges. It includes only select Tweets and brief snippets of the speech Trump delivered on the morning of January 6, omitting its full text or context. See App. 228–230, Indictment ¶104. Whether the Tweets, that speech, and Trump’s other communications on January 6 involve official conduct may depend on the content and context of each. Knowing, for instance, what else was said contemporaneous to the excerpted communications, or who was involved in transmitting the electronic communications and in organizing the rally, could be relevant to the classification of each communication.
In ruling (unsurprisingly) that the Jeffrey Clark allegations have to be thrown out, Roberts goes further, and reads the Executive Branch interest in policing election crime to extend to making false claims about the election.
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)
And when entertaining Trump’s claims that his interference in state and congress’ role were just an effort to protect the integrity of the election, Roberts thumbs both the scale and the facts again, using the Take Care clause as a shield rather than the sword that Judge Karen Henderson viewed it as.
On Trump’s view, the alleged conduct qualifies as official because it was undertaken to ensure the integrity and proper administration of the federal election. Of course, the President’s duty to “take Care that the Laws be faithfully executed” plainly encompasses enforcement of federal election laws passed by Congress. Art. II, §3. And the President’s broad power to speak on matters of public concern does not exclude his public communications regarding the fairness and integrity of federal elections simply because he is running for re-election. Cf. Hawaii, 585 U. S., at 701. Similarly, the President may speak on and discuss such matters with state officials—even when no specific federal responsibility requires his communication—to encourage them to act in a manner that promotes the President’s view of the public good.
Even when conceding that Trump was pressuring Mike Pence as President of the Senate, not as his Vice President, when he was threatening to have him assassinated, Roberts suggests this is a close call, because Trump has to be able to pressure the President of the Senate to get legislation passed.
The question then becomes whether that presumption of immunity is rebutted under the circumstances. When the Vice President presides over the January 6 certification proceeding, he does so in his capacity as President of the Senate. Ibid. Despite the Vice President’s expansive role of advising and assisting the President within the Executive Branch, the Vice President’s Article I responsibility of “presiding over the Senate” is “not an ‘executive branch’ function.” Memorandum from L. Silberman, Deputy Atty. Gen., to R. Burress, Office of the President, Re: Conflict of Interest Problems Arising Out of the President’s Nomination of Nelson A. Rockefeller To Be Vice President Under the Twenty-Fifth Amendment to the Constitution 2 (Aug. 28, 1974). With respect to the certification proceeding in particular, Congress has legislated extensively to define the Vice President’s role in the counting of the electoral votes, see, e.g., 3 U. S. C. §15, and the President plays no direct constitutional or statutory role in that process. So the Government may argue that consideration of the President’s communications with the Vice President concerning the certification proceeding does not pose “dangers of intrusion on the authority and functions of the Executive Branch.” Fitzgerald, 457 U. S., at 754; see supra, at 14.
At the same time, however, the President may frequently rely on the Vice President in his capacity as President of the Senate to advance the President’s agenda in Congress. When the Senate is closely divided, for instance, the Vice President’s tiebreaking vote may be crucial for confirming the President’s nominees and passing laws that align with the President’s policies. Applying a criminal prohibition to the President’s conversations discussing such matters with the Vice President—even though they concern his role as President of the Senate—may well hinder the President’s ability to perform his constitutional functions.
It is ultimately the Government’s burden to rebut the presumption of immunity. We therefore remand to the District Court to assess in the first instance, with appropriate input from the parties, whether a prosecution involving Trump’s alleged attempts to influence the Vice President’s oversight of the certification proceeding in his capacity as President of the Senate would pose any dangers of intrusion on the authority and functions of the Executive Branch.
Over and over again, then, Roberts has applied his new standard — whether anything might conceivably intrude on the functions of the Presidency — to immunize usurping Congress’ (and states’) role in certifying the election.
What John Roberts has done — at least preliminarily — is carve out an Executive authority so broad that in every area where the President is explicitly excluded, even in the role of candidate-for-President, the President can still act with absolute immunity.
That authorizes the President to use all the powers of the Presidency to win re-election — precisely the opposite holding of what Blassingame adopted.
In an opinion that tries to cloak his power grab with an appeal to President Washington, John Roberts has suffocated the greatest thing Washington gave the United States, the presumption that Presidential powers would cede to the power of elections.
Share this entry
https://www.emptywheel.net/wp-content/uploads/2020/01/Roberts.jpeg17051079emptywheelhttps://www.emptywheel.net/wp-content/uploads/2016/07/Logo-Web.pngemptywheel2024-07-01 14:20:502024-07-01 14:31:59Justice Roberts’ Drone Strike on George Washington’s Legacy
The most important SCOTUS ruling today overturned Chevron, basically giving a bunch of lifetime appointed judges who just legalized accepting gratuities for themselves power to veto regulations imposed by Executive Agencies.
But others are more expert on that opinion, so I’ll let them explain how it’ll change life in the United States for decades to come.
Before the ruling, I had argued the court could do one of four things:
Leave the application in place
Overturn its application to January 6 altogether (effectively, ruling that the vote certification was no an official proceeding)
Limit its application to paperwork crimes
Address the meaning of “corrupt purpose”
The court opted for option 3:
To prove a violation of Section 1512(c)(2), the Government must establish that the defendant impaired the availability or integrity for use in an official proceeding of records, documents, objects, or as we earlier explained, other things used in the proceeding, or attempted to do so. See supra, at 9. The judgment of the D. C. Circuit is therefore vacated, and the case is remanded for further proceedings consistent with this opinion. On remand, the D. C. Circuit may assess the sufficiency of Count Three of Fischer’s indictment in light of our interpretation of Section 1512(c)(2).
This has the ability of overturning most, if not all, the obstruction convictions associated with January 6.
Or it may not.
Or it may not affect those who knew of the purpose of the vote certification.
After all, there was a set of January 6 defendants convicted of obstruction who knew not just that they were trying to prevent Congress from certifying Joe Biden as President, but who also knew the thing they were trying to prevent was the certification of Biden’s electoral certificates.
If DOJ can prove a given defendant knew the import of the certifications, they may preserve some of these prosecutions.
There’s even the possibility that DOJ can successfully argue that the Jan6ers were attempting to impair “witness” testimony of members of Congress or, more importantly, Mike Pence, by scaring the bejesus out of them.
Someone whose prosecution is far less likely to be affected by this ruling is Donald Trump. That’s because he had created a set of fraudulent certifications that he intended to use to either replace Joe Biden’s real electoral certifications, or at the very least, to stall the certification of them.
It goes back to the DC Circuit to decide.
Importantly, SCOTUS left the definition of “corrupt purpose” undecided, something else on which the DC Circuit has issued unstable opinions. A review of that definition could lead to a further narrowing of the application. But there, too, Donald Trump’s charges should remain, because his efforts to remain in power after being fired fit the definition of “corrupt purpose.” Or did, before SCOTUS started chipping away at corruption law.
Update: Justice Ketanji Brown Jackson’s concurrence notes that there were documents at the core of January 6: the electoral votes, and also notes that there may have been other attempted impairment.
In my view, the Court properly interprets §1512(c)(2) in the opinion it issues today. It also rightly vacates the judgment below and remands this case for further proceedings. Joseph Fischer was charged with violating §1512(c)(2) by corruptly obstructing “a proceeding before Congress, specifically, Congress’s certification of the Electoral College vote.” App. 183. That official proceeding plainly used certain records, documents, or objects—including, among others, those relating to the electoral votes themselves. See Tr. of Oral Arg. 65–67. And it might well be that Fischer’s conduct, as alleged here, involved the impairment (or the attempted impairment) of the availability or integrity of things used during the January 6 proceeding “in ways other than those specified in (c)(1).” Ante, at 8. If so, then Fischer’s prosecution under §1512(c)(2) can, and should, proceed. That issue remains available for the lower courts to determine on remand.
Update: This language from the syllabus should make it clear that Trump’s charges should remain unscathed and there may be other ways to sustain the charges against some of the existing defendants.
For example, it is possible to violate (c)(2) by creating false evidence—rather than altering incriminating evidence. Subsection (c)(2) also ensures that liability is still imposed for impairing the availability or integrity of other things used in an official proceeding beyond the “record[s], document[s], or other object[s]” enumerated in (c)(1), such as witness testimony or intangible information.
Share this entry
https://www.emptywheel.net/wp-content/uploads/2021/02/Screen-Shot-2021-02-10-at-9.37.01-PM.png9741708emptywheelhttps://www.emptywheel.net/wp-content/uploads/2016/07/Logo-Web.pngemptywheel2024-06-28 11:07:032024-06-28 11:41:58Supreme Court Makes 18 USC 1512 a Paperwork Crime, But Does Not Address Corrupt Purpose
[NB: check the byline, thanks. Update(s) if any will appear at the bottom of this post. /~Rayne]
It’s the fourth and final day of U.S. Senate Judiciary Committee’s confirmation hearings on the nomination of Judge Ketanji Brown Jackson to the Supreme Court. Today’s hearing is in progress.
Today’s hearing consists of three remaining panels (Judge Jackson was Panel I):
Panel II
The Honorable Ann Claire Williams
American Bar Association
Standing Committee on the Federal Judiciary
Ms. D. Jean Veta
American Bar Association
Standing Committee on the Federal Judiciary
Mr. Joseph M. Drayton
American Bar Association
Standing Committee on the Federal Judiciary
Panel III Majority
The Honorable Joyce Beatty
United States House of Representatives
State of Ohio – 3rd District
Ms. Risa Goluboff
Dean, Arnold H. Leon Professor of Law, and Professor of History
University of Virginia
Mr. Wade Henderson
President & CEO
The Leadership Conference on Civil and Human Rights
Mr. Richard B. Rosenthal
Captain Frederick Thomas
National President
National Organization of Black Law Enforcement Executives (NOBLE)
Panel III Minority
The Honorable Steve Marshall
Attorney General
State of Alabama
Ms. Jennifer Mascott
Assistant Professor of Law & Co-Executive Director
The C. Boyden Gray Center for the Study of the Administrative State, Antonin Scalia Law School, George Mason University
From the looks of the last three panelists, the GOP senators are continuing to play to the base by hammering Judge Jackson on abortion, religious freedom in public schools, and human trafficking. The last will likely fit with the crap Sen. Josh Hawley et al already tattooed about child pornography.
The GOP will want to leave that shitty taste of zealotry and bigotry in the audience’s mouths as the hearings end. In other words, on brand for the GOP.
You can watch live feed at these sites (not the same links as yesterday’s as the previous links may lead to recordings previous days’ hearings):
If you know of anyone else covering today’s hearing in Twitter, please leave a comment below. Thanks!
~ ~ ~
Apparently these hearings weren’t really to determine a nominee’s qualifications for a lifetime appointment to SCOTUS or to ensure the public was informed. No, apparently the Senate Judiciary Committee hearings have been little more than social media opportunities, which Sen. Ben Sasse (R-NE) called out.
Ben Sasse moments after Ted Cruz throws a performative tantrum that was tailormade for Hannity: “I think we should recognize that the jackassery we often see around here is partly because of people mugging for short-term camera opportunities.” pic.twitter.com/3YqBgrrXNR
Sasse also expressed his concern about cameras in the court room, that “cameras change human behavior,” and yet the difference between the video above by C-SPAN versus this by CBS News below tells us cameras tell us things audio and written reporting don’t offer.
Sen. Sasse (R-NE) says he believes it should be up to the Supreme Court to decide if cameras are allowed in the courtroom, adding:
“I think we should recognize the jackassery we often see around here is partly because of people mugging for short-term camera opportunities.” pic.twitter.com/BxXaw1UX4D
If you have a Twitter account, every once in a while for grins and giggles you should drop Sen. Ted Cruz (Senate account: @sentedcruz, personal account: @tedcruz) a tweet and let him know what you thought of his performance as a member of the Senate Judiciary Committee, wholly visible on all sorts of cameras.
~ ~ ~
There may be more to come, watch this space for updates.
Share this entry
https://www.emptywheel.net/wp-content/uploads/2018/08/Justice_Mindgutter_1500pxw.jpg11241500Raynehttps://www.emptywheel.net/wp-content/uploads/2016/07/Logo-Web.pngRayne2022-03-24 10:47:142022-03-24 10:47:14Day Four — The Well-Qualified K. B. J.
[NB: check the byline, thanks. Update(s) at the bottom of this post. /~Rayne]
It’s Day Three of U.S. Senate Judiciary Committee’s four days of confirmation hearings on the nomination of Judge Ketanji Brown Jackson to the Supreme Court. Today’s hearing is already in progress.
Four. Long. Days.
Hearings which are half right-wing bloviating, achieving nothing to further the public’s interests. This is the fourth time this nominee has been through this tedious crap in her lifetime which should surely qualify as inhumane treatment and torture under UNCAT; it should also earn her a sainthood.
You can watch live feed at these sites (not the same links as yesterday’s as the previous links may lead to recordings previous days’ hearings):
Heaven help Judge Jackson get through the day without breaking a molar gritting her teeth.
~ 3 ~
Gallup took a poll ahead of these SCOTUS confirmation hearings as it has for past nominees. Judge Jackson has the highest approval rating apart from Chief Justice Roberts.
Initial support for Ketanji Brown Jackson’s Supreme Court nomination ties as the highest in Gallup’s trends. https://t.co/K1DYHZVod0
But do go on and attack her, GOP twits. Make asininely racist remarks about the nominee who has a higher approval rating than your party’s leader ever had as president. Let’s see how that pans out for you over the long run.
~ 2 ~
Meanwhile, outside the GOP’s shit show in the Senate Judiciary Committee hearing, another GOP senator was doing is share to push the nation back to the 1950s.
REPORTER: “You would be okay with the Supreme Court leaving the issue of interracial marriage to the states?”
SEN. MIKE BRAUN (R-IN): “Yes. If you are not wanting the Supreme Court to weigh in on issues like that, you are not going to be able to have your cake and eat it too.” pic.twitter.com/jiVTMOpC01
I don’t have words strong enough for this crap. He just called into question the legitimacy of a seated SCOTUS jurist’s marriage (Clarence and Ginni Thomas) as well as that of the nominee now being grilled.
This is so intensely personal for me; my parents’ marriage wouldn’t have been legal in some states back in the 1950s and I’d be illegitimate having been born before the unanimous SCOTUS decision in Loving v. Virginia, 388 U.S. 1 (1967).
Braun’s states’ rights crap doesn’t target interracial marriage (which has broad support across the U.S.); it targets same-sex marriage and any other personal decisions which may require government-regulated services — like reproductive health. He was literally questioned about Griswold v. Connecticut immediately following the question of interracial marriage and he gave an equally unsatisfactory answer about that.
It’s not just Sen. Hairspray-Abuser-from-Tennessee Blackburn attacking the right to privacy necessary for birth control.
Braun has since tried to backpedal on this which means he’s merely taken off the hood he donned.
Except he really didn’t fully unwind what he said; he backed up over the body, and then rolled forward over it again by clarifying what he meant about states’ rights, and then claiming he didn’t understand the questions.
… The Times of Northwest Indiana reported that Braun “initially limited” his claim that the Supreme Court had usurped states’ rights over abortion in 1973’s Roe v. Wade decision. But when a reporter questioned him on other cases, including Loving v. Virginia, he reiterated his stance.
Braun later clarified his comments, saying in a statement that he “misunderstood” the questions. …
Sadly, he’s a senator until 2025. Indiana, you had better not forget this racist authoritarian crap come general election 2024. In the mean time Hoosiers should be lighting up his phone and telling Braun where he can stuff his racist states’ rights nonsense. Congressional switchboard: (202) 224-3121 or use Resist.bot.
~ 1 ~
I wish I could convey how deeply triggering and traumatic these confirmation hearings have been for BIPOC especially women.
I have been traveling, so not closely following #KetanjiBrownJacksonHearings but I’ve seen a succession of white supremacists yelling at her. And she is calm and composed and we must know that that all comes at a cost. A cost that none of these racist and misogynist fucks pay.
What these hearings tell us is that the white cis-het minority in Congress which retains an illegitimate stranglehold on power demands that any and all competent BIPOC particularly women must submit to belligerence and abuse before they will be allowed to participate in this flawed democracy.
What we are witnessing is the re-normalization of overt racism and misogyny. Yet media has failed to punch up, instead punching down, reinforcing the normalization.
Local news is dumbasses. But even national news:
NBC—”defending her sentencing record”
CBS—”Republicans pointed to her sentencing record in child pornography cases”
ABC—”allegations she let child porn offenders off the hook”
CNN—”child pornography was another contentious issue”
— Matt Negrin, HOST OF HARDBALL AT 7PM ON MSNBC (@MattNegrin) March 23, 2022
We’re constantly deluged by the left about the lack of accountability for the January 6 insurrectionists and seditionists, and yet the left fails to hold accountable the wholly integrated abusive racist and misogynist behavior the media augments in these same insurrectionists and seditionists.
The Venn diagram is a single circle and the media continues to treat the persons outside it as the objects to be despised and subjugated and oppressed.
The problem isn’t just the GOP senators or the media when constituents fail to do anything at all to express displeasure let alone organize effectively for change.
~ 0 ~
I may have more to add here as today’s hearing continues.
So long as I can keep my blood pressure under control, that is.
Stay strong, Judge Jackson. Like Frederick Douglass in his Fourth of July speech, leave off this process where you began — with hope.
Share this entry
https://www.emptywheel.net/wp-content/uploads/2018/08/Justice_Mindgutter_1500pxw.jpg11241500Raynehttps://www.emptywheel.net/wp-content/uploads/2016/07/Logo-Web.pngRayne2022-03-23 12:08:042022-03-23 23:17:47And Three More Things: Day Three — The Well-Qualified K. B. J. [UPDATE-1]
It’s Day Two of U.S. Senate Judiciary Committee’s four days of confirmation hearings on the nomination of Judge Ketanji Jackson Brown to the Supreme Court. The hearing was scheduled to begin at 9:00 a.m. this morning; we are catching it here in progress.
You can watch live feed at these sites (not the same links as yesterday’s as the previous links may lead to recordings of Day 1):
Sadly, Senator Lindsey Graham unloaded his hypocritical faux-trage this morning. Ms. Phang expresses sentiments broadly shared about his performance.
Let’s be clear, Sen. Graham knew LAST YEAR WHEN HE VOTED TO CONFIRM HER FOR THE US COURT OF APPEALS FOR THE D.C. CIRCUIT about Judge Jackson’s prior work as a federal public defender, her affiliations, her opinions, her positions on issues, etc.
Judge Jackson was eminently qualified three times but now suddenly unqualified based on the credentials which helped her earn her previous federal appointments?
Right-wing media outlet had assured their audience yesterday about these hearings:
Oh no, honey — these hearings won’t be a circus. They’ll be a live dramatic production.
Senator Lindsey Graham swiveled in his chair, grabbed his bottle of Coca-Cola, and stormed out of the Supreme Court confirmation hearing for Judge Ketanji Brown Jackson.
What a pity there aren’t awards given for supporting actors in a nomination hearing production.
~ 2 ~
Senator John Cornyn can’t let Graham’s act go unanswered. Nope, he needed to go after the gays because as you have surely noticed our so-called traditional marriages have all ruptured since teh gays were legally able to marry.
Sen. John Cornyn’s questions to Judge Ketanji Brown Jackson make it clear that 1. Republicans are still hung up on gay marriage and 2. still hopeful that SCOTUS will reverse Obergefell pic.twitter.com/VFLDMTrBIC
Damn it all, I forgot to get a lawyer and divorce my spouse back in 2015 after Obergefell v. Hodges destroyed the institution of marriage between straight people.
SCOTUS didn’t make law though Cornyn wants the GOP base to believe it did.
As @JohnCornyn complains about the Supreme Court’s gay marriage decision being “court-made law” that went against the will of local people, just remember that’s the *exact* same argument segregationists made about Brown v. Board of Education.
But this isn’t just about individuals’ rights to marriage which Cornyn is fighting. It’s about individuals’ fundamental human rights of self-determination.
If you’re non-binary especially if you’re trans, you recognize the dog whistle Cornyn’s blowing
~ 1 ~
Meanwhile, the GOP predictably plays the racism card.
Unsurprising, really; the GOP has no real platform, no substance, no policies except thinly masked oppression of more than half the country who are not xenophobic cis-het white Christians. They’re clinging to the lessons their ratfucking forebears taught them:
You start out in 1954 by saying, “N*gger, n*gger, n*gger.” By 1968 you can’t say “n*gger”—that hurts you. Backfires. So you say stuff like forced busing, states’ rights and all that stuff. You’re getting so abstract now [that] you’re talking about cutting taxes, and all these things you’re talking about are totally economic things and a byproduct of them is [that] blacks get hurt worse than whites. And subconsciously maybe that is part of it. I’m not saying that. But I’m saying that if it is getting that abstract, and that coded, that we are doing away with the racial problem one way or the other. You follow me—because obviously sitting around saying, “We want to cut this,” is much more abstract than even the busing thing, and a hell of a lot more abstract than “N*gger, n*gger.”
Instead of busing they now talk non-stop about critical race theory (CRT), how it’s being forced on them even though they can’t explain what it is or provide any evidence it’s part of K-12 public school curriculum (it’s not). They don’t shy away from states’ rights now, claiming states have the right to remove content from schools which makes white people feel bad.
It’s overt racism with the sheerest of veils.
The GOP is following the script laid out by Chris Rufo, the guy who created the influence operation built on the university-level coursework offered to law students in which the economics of race and its historic and contemporary affect on laws and democratic society are discussed.
Now CRT is the right-wing’s bogeyman. Rufo literally laid out the approach via Twitter last Thursday:
Ketanji Brown Jackson is a lifelong admirer of the father of critical race theory, Derrick Bell, who wrote that the Constitution was like “roach powder,” that whites might commit “racial genocide,” and that his motto was “I live to harass white folks.” pic.twitter.com/fhGEf0kFk0
— Christopher F. Rufo ⚔️ (@realchrisrufo) March 17, 2022
In short, it’s what the GOP now yells every time it wants to invoke a fear response from its white supremacist base: OMG CRT CRT CRT!!!
~ 0 ~
I can’t believe we have to wade through two more days of this racist and misogynist crap. Nor can I believe we still don’t know who owns beer-loving Justice Brett Kavanaugh.
Share this entry
https://www.emptywheel.net/wp-content/uploads/2018/08/Justice_Mindgutter_1500pxw.jpg11241500Raynehttps://www.emptywheel.net/wp-content/uploads/2016/07/Logo-Web.pngRayne2022-03-22 12:14:392022-03-22 13:13:41Three More Things: Day Two — The Well-Qualified K. B. J.
Confirmation hearings begin today before the Senate Judiciary Committee for Biden’s Supreme Court justice nominee, Judge Ketanji Brown Jackson.
I sought a nominee for the Supreme Court with exceptional credentials, unimpeachable character, and an unwavering dedication to the rule of law. Meet my nominee, Judge Ketanji Brown Jackson. pic.twitter.com/OndIJaGE74
The Washington Post’s article is worth your time. If confirmed, Judge Jackson may be the only justice with public school education, but when 90% of American children attend public schools, it’s incredibly valuable to have someone who understands their experience, their needs, and can represent them at the Supreme Court.
~ 2 ~
Predictably, Sen. Josh Hawley, supporter of GOP insurrection and sedition, has trash talked Judge Brown Jackson’s experience as a public defender — a qualification none of the rest of the current justices share. He’s claimed, “Judge Jackson has a pattern of letting child porn offenders off the hook for their appalling crimes, both as a judge and as a policymaker.”
The Washington Post factchecked this and found this claim to merit Three Pinocchios as an outright false claim, finding Hawley took Judge Jackson’s remarks out of context, mischaractered the work of the U.S. Sentencing Commission on which Judge Jackson has served, and twisted Judge Jackson’s record.
The coup de grace should fall to the right-wing National Review Online which has also taken issue with Hawley’s claim.
Surprisingly, the NRO piece is worth a read even if its contributor, Andrew McCarthy, doesn’t support Jackson’s nomination (for what are rather thin and transparently partisan reasons). At least you’ll be prepared for Hawley’s bloviating about child pornography when he starts in on the topic.
Hawley creeps me out in so many ways but his weirdly obsessive attitude about child porn seems like a naked appeal not only to the racists who reject the notion of a Black woman SCOTUS justice but the crackpot Q-crowd.
~ 1 ~
There has been and will be a lot of nonsensical bullshit thrown around about Judge Jackson’s public defender experience.
Except the premise that all accused should have the assistance of counsel for their defense is fundamental to this nation’s democratic foundation, enshrined in the Sixth Amendment.
What does it say about our nation’s belief in this enumerated right when none of the current SCOTUS justices have been public defenders?
We’ve had a number of community members, especially since the January 6, 2020 insurrection, who have struggled with the application of this right. I’d like to suggest a rather basic but effective educational experience — the premium cable series John Adams featuring Paul Giamatti as Adams. It was produced by HBO and isn’t widely available to stream (check JustWatch) but it’s available to purchase if pricey at Amazon Prime and Google Play. If you want to save some cash, buy just the first episode, Part I: Join or Die (1770–1774), in which Adams defends British soldiers. A dramatization, yes, but effective at making points.
~ 0 ~
Apparently there are really four things today, because this one REALLY bugs me. Is Sen. Blackburn really advocating for birth control to be outlawed???
Tennessee, I’m looking hard at you. Why your state re-elected this cretin who believes in Big Government overreach into individuals’ family planning and women’s reproductive health is beyond me.
Call your senators and insist they confirm Judge Ketanji Brown Jackson.
Congressional switchboard: (202) 224-3121 or use Resist.bot.
Share this entry
https://www.emptywheel.net/wp-content/uploads/2018/08/Justice_Mindgutter_1500pxw.jpg11241500Raynehttps://www.emptywheel.net/wp-content/uploads/2016/07/Logo-Web.pngRayne2022-03-21 11:08:442022-03-21 12:35:54Three Things: The Well-Qualified K. B. J.
