Friday Reads: For Whom the Wheels of Justice Roll

Good Morning!

Is it just me or is there like a maximum amount of weirdness going on right now?  I’m going to start with some local ongoing trauma.  BP Oil has ruined so much of the ecosystem down here–much of it still dying and unclean–that it’s hard to believe that any one could stand up in front of judge and say something to the effect of it wasn’t as bad as an “apocalypse”.  Everything the oil and gas and chemical industries do down here creates complete havoc with life, the ecosystem, the locals, and a unique way of life.  Unfortunately, our politicians own their souls to the company store and the money enriches a small group of the greedy.  This recent lawsuit was righteous but the comments by BP lawyers are worth exposing.  Oysters are going extinct. There are a lot of health problems.  The wildlife continues to wash up on the beach, dead and extremely malformed.  Family businesses are devastated and not recovering. I guess if you don’t have to live with the aftermath, it doesn’t exist for you.

News of this morning’s federal court decision against BP broke as I was aboard a 40-foot oyster boat in the Louisiana delta, just off the coast of Empire, a suburb of New Orleans.

The reaction: stunned silence. Then a bit of optimism.

“This is huge,” said John Tesvich, chair of the Louisiana Oyster Task Force, his industry’s main lobby group in the state. “They are going to have to pay a lot more.” Standing on his boat, the “Croatian Pride,” en route to survey oyster farms, he added: “We want to see justice. We hope that this money goes to helping cure some of the environmental issues in this state.”

On Thursday, a federal judge in New Orleans found that the 2010 Gulf of Mexico disaster—in which the Deepwater Horizon oil rig exploded, killing 11 people and spilling millions of barrels of oil into the Gulf—was caused by BP’s “willful misconduct” and “gross negligence.”

Tesvich says he’s seen a drastic decline in his company’s oyster production since then—company profits down 15 to 20 percent and oyster yields slashed by 30 percent. He says he’s suspicious that this new decision will force the kind of action from local politicians needed to clean up the Gulf once-and-for-all. The politicians in Louisiana, he says, “haven’t been the best environmental stewards.”

BP’s own reaction to the news has been fast and pointed. “BP strongly disagrees with the decision​,” the company said in a statement on Thursday, published to its website. “BP believes that an impartial view of the record does not support the erroneous conclusion reached by the District Court.”

The company said it would immediately appeal the decision.

“It’s clear that the apocalypse forecast did not come to pass,” said a BP official.

With the fourth anniversary of the busted well’s final sealing coming up in a couple weeks, BP has been pushing back aggressively against the company’s critics. On Wednesday night—just hours before the court’s ruling—Geoff Morrell, the company’s vice president of US communications, spoke in New Orleans at the Society of Environmental Journalists conference, and blamed the media and activists for BP’s rough ride.

The company’s efforts to clean up the spill have been obscured, he said, by the ill-intentioned efforts of “opportunistic” environmentalists, shoddy science, and the sloppy work of environmental journalists (much to the chagrin of his audience, hundreds of environmental journalists).

“It’s clear that the apocalypse forecast did not come to pass,” he said. “The environmental impacts of the spill were not as far-reaching or long-lasting as many predicted.”

Back in 2010, BP’s then-CEO Tony Hayward lamented—a month after the explosion—that he wanted his “life back.” He didn’t find much sympathy at the time. Within a couple months, he resigned out of the spotlight (with a $930,000 petroleum parachute). But his flub didn’t retire so easily, and it became emblematic of BP’s astonishing capacity for tone-deafness, something Morrell seemed intent on continuing Wednesday.

Morrell said that while “impolitic” remarks had been made by BP officials in the past, the spill’s aftermath has been “tough on all of us.”

We’re not holding our breath that if and when the money gets here, it will be used to restore the gulf, clean up the mess, and help the people and animals whose lives have been devastated.  Why you ask?  Bobby Jindal has been fighting to keep the social costs created by this dirty and reckless industry away from those liable.  He’s also got an interesting connection to the law firm that represents BP.  His brother works there.

This is about yet two more examples of how Gov. Bobby Jindal conveniently manages to look the other way instead of being up front when confronted with issues that most might believe could present a conflict of interest

When Jindal signed SB 469 into law on Friday he not only killed the pending lawsuit against 97 oil, gas and pipeline companies by the Southeast Louisiana Flood Protection Authority-East (SLFPA-E) but he also placed in extreme jeopardy the claims by dozens of South Louisiana municipalities and parish governments from the disastrous 2010 BP Deepwater Horizon spill that killed 11 men and discharged 5 million barrels of oil into the Gulf of Mexico, spoiling beaches and killing fish and wildlife.

By now, most people who have followed the bill authored by Sen. Bret Allain (R-Franklin) but inspired by Sen. Robert Adley (R-Benton) know that big oil poured money and thousands of lobbying man hours into efforts to pass the bill with its accompanying amendment that makes the prohibition against such lawsuits retroactive to ensure that the SLPFA-E effort was thwarted.

Most followers of the legislature and of the lawsuit also know that up to 70 legal scholars, along with Attorney General Buddy Caldwell, strongly advised Jindal to veto the law because of the threat to the pending BP litigation.

Altogether, the 144 current legislators received more than $5 million and Jindal himself received more than $1 million from oil and gas interests. Allain received $30,000 from the oil lobby and Adley an eye-popping $600,000.

So, when BP lobbyists began swarming around the Capitol like blow flies buzzing around a bloated carcass, the assumption was that BP somehow had a stake in the passage of SB 469 and that infamous amendment making the bill retroactive.

John Barry, a former SLFPA-E who was given the Jindal Teague Treatment but who stuck around to pursue the lawsuit, said, “During the last few days of the session, we were very well aware that the BP lobbyists were extraordinarily active. They were all over the place. We all assumed there was definitely something it in for them.”

Something in it for them indeed.

Russel Honore said it another way, observing wryly that the Exxon flag still flies over the State Capitol.

Blogger Lamar White, Jr. observed that former Gov. Edwin Edwards spent eight years in a federal prison for accepting payments from hopeful casino operators for his assistance in obtaining licenses—all after he left office. New Orleans Mayor Ray Nagin was similarly convicted of using his position to steer business to a family-owned company and taking free vacations meals and cell phones from people attempting to score contracts or incentives from the city.

So what is the difference between what they did and the ton of contributions received by Adley and Jindal? To paraphrase my favorite playwright Billy Wayne Shakespeare, a payoff by any other name smells just as rank.

And while big oil money flowed like liquor at the State Capitol (figuratively of course; it’s illegal to make or accept campaign contributions during the legislative session), what many may not know is that Jindal may have had an ulterior motive when he signed the bill into law against sound legal advice not to do so, thus protecting the interests of big oil over the welfare of Louisiana citizens who have seen frightening erosion of the state’s shoreline and freshwater marshes.

The Washington, D.C., law firm Gibson, Dunn & Crutcher is one of the firms that represented BP in negotiating a $4.5 billion settlement that ended criminal charges against the company. Included in that settlement amount was a $1.26 billion criminal fine to be paid over five years.

An associate of Gibson, Dunn & Crutcher who has defended clients in government audit cases and in several whistleblower cases is one Nikesh Jindal.

He also is assigned to the division handling the BP case.

Nikesh Jindal is the younger brother of Gov. Piyush, aka Bobby Jindal.

Still, the US District Court found BP “grossly negligent”. Eleven people were killed.  Oil gushed into the Gulf destroying the economy, wildlife, and the delicate ecosystem.  “Gross negligence” can mean a lot of dollars.  Halliburton and Transocean have been cleared of gross negligence but they’re still paying fines.  BP could be paying out billions of dollars.

BP Plc acted with gross negligence in setting off the biggest offshore oil spill in U.S. history, a federal judge ruled, handing down a long-awaited decision that may force the energy company to pay billions of dollars more for the 2010 Gulf of Mexico disaster.

U.S. District Judge Carl Barbier held a trial without a jury over who was at fault for the catastrophe, which killed 11 people and spewed oil for almost three months into waters that touch the shores of five states.

“BP has long maintained that it was merely negligent,” said David Uhlmann, former head of the Justice Department’s environmental crimes division. He said Barbier “soundly rejected” BP’s arguments that others were equally responsible, holding “that its employees took risks that led to the largest environmental disaster in U.S. history.”

The case also included Transocean Ltd. (RIG) and Halliburton Co. (HAL), though the judge didn’t find them as responsible for the spill as BP. Barbier wrote in his decision today in New Orleans federal court that BP was “reckless,” while Transocean and Halliburton were negligent. He apportioned fault at 67 percent for BP, 30 percent for Transocean and 3 percent for Halliburton.

U.K.-based BP, which may face fines of as much as $18 billion, closed down 5.9% to 455 pence in London trading.

“The court’s findings will ensure that the company is held fully accountable for its recklessness,” U.S. Attorney General Eric Holder said. “This decision will serve as a strong deterrent to anyone tempted to sacrifice safety and the environment in the pursuit of profit.”

Quite a few politicians are also having a day in court and it’s not turning out well for them.  Former New Orleans Ray Nagin has declared indigency and asked for a public defender to handle his appeal.  The former first lady and Governor of Virginia were stunned to be found guilty a multiple accounts of grifting. Robert McConnell was found guilty of 11 of 14 counts of public corruption.  His wife is going down for eight counts.  The reaction in the courtroom by the first couple and their cronies was melodramatic. It took the jury 3 days to reach a decision.  Will Texas Governor Rick Perry be next for an orange suit in Federal Facility?

A federal jury on Thursday found former Virginia governor Robert F. McDonnell and his wife, Maureen, guilty of public corruption — sending an emphatic message that they believed the couple sold the office once occupied by Patrick Henry and Thomas Jefferson to a free-spending Richmond businessman for golf outings, lavish vacations and $120,000 in sweetheart loans.

After three days of deliberations, the seven men and five women who heard weeks of gripping testimony about the McDonnells’ alleged misdeeds unanimously found that the couple conspired to lend the prestige of the governor’s office to Jonnie R. Williams Sr. in a nefarious exchange for his largesse.

The verdict means that Robert McDonnell, the first governor in Virginia history to be charged with a crime, now holds an even more unwanted distinction — the first to be convicted of one.

He and his wife face decades in federal prison, although their actual sentences will likely fall well short of that. U.S. District Judge James R. Spencer set a sentencing hearing for Jan. 6.

The former governor, a onetime Republican rising star considered for the 2012 vice presidential nomination, was convicted of all 11 corruption-related counts brought against him. In a small victory, he was acquitted of lying on loan documents.

The former first lady was convicted of eight corruption-related charges and an additional count of obstruction of justice. She, too, was acquitted of falsifying a bank record.

The verdict was read aloud in front of a courtroom packed with reporters and supporters of the former first couple. When the clerk announced that the former governor had been found “guilty” of the first of 14 counts the couple faced, Robert McDonnell, 60, closed his eyes tightly, shaking in his seat as he began to weep.

I guess the “bitch” made me do it isn’t an effective defense after al

Judges and juries were busy all over the country.

A Federal Court granted an injunction restoring early voting in Ohio. Republican governors have been busy trying to cut down access to voting in fear of turnout by minorities and single ladies who still hate rule by neoconfederate overseers.

I have now had a chance to give an initial read the 71-page federal district court opinion in Ohio State Conference of the NAACP v. Husted. This is a significant case, which could potentially make it to the Supreme Court. It expands voting rights in a broad way, and makes it difficult for a state like Ohio to cut back on any expansions of voting rights that it puts in place. The big question is where the stopping point is in a decision like this, and how to justify calling it unconstitutional for a state like Ohio to make a modest cutback in early voting while allowing many other states to offer no early voting at all.

Here are my preliminary thoughts.

1. This is the latest in a series of cases challenging Ohio cutbacks in early voting. The challenges are before the same federal district court judge in Ohio, Peter Economus, as earlier challenges, including a challenge which led to the restoration of early voting during the 2012 election. Judge Economus tangled with Ohio SOS Husted before, leading to potential calls for Husted to be cited for contempt. It is therefore no surprise that Judge Economus sided against Husted again in this latest challenge.

2. The theory in the earlier Ohio early voting case (Obama for America v. Husted) is different than the theory in the current case. In the last case, the question was whether Ohio could cut back on early voting for all voters EXCEPT for certain military and overseas voters in the period just before the election. The district court, affirmed by the Sixth Circuit, said that these special rules for just a subset of voters violated equal protection. (I had thought the Supreme Court might get involved in this case, but the Court did not.)

3. This case does not raise issues of different voting rules for different classes of voters. In fact, the dispute here arises from the issue of uniformity. The Ohio legislature cut back from 35 to 28 days of early voting, in the process eliminating “Golden Week,” a week where new (or reregistering voters) could register to vote and vote early during the same period. In conjunction with rules establishing uniformity of early voting times established by SOS Husted, the new early voting times eliminated night voting as well as Sunday voting before election day. That day was used by some African-American churches for a “Souls to the Polls” voter drive event. All Ohio voters remain able to vote by mail without excuse, for the 30 days before the election. The NAACP and others argued that the cutbacks in early voting and the elimination of Golden Week violated both equal protection guarantees of the U.S. Constitution and Section 2 of the Voting Rights Act.

4. The judge found as a matter of fact (crediting expert reports of the plaintiffs’ especially that of U. Florida’s Dan Smith) that the cutbacks in early voting would disproportionately fall on African-Americans. The judge found that early voters, especially in the larger population areas of the state, included a large portion of the state’s share of African-American voters. The judge also found that African-American voters were distrustful of absentee balloting as an alternative to in person voting, and that absentee balloting was more burdensome (filling out the materials, postage, mailing, etc.)

You can follow the links to the additional analysis on the case. It could be headed to the White Male/Uncle Thomas Overseers at SCOTUS shortly.

A Federal Appeals court has withdrawn the decision defunding the AHCA. 

In July, two Republican judges on the United States Court of Appeals for the District of Columbia Circuit handed down a decision defunding much of the Affordable Care Act (ACA). This effort to implement Sen. Ted Cruz’s (R-TX) top policy priority from the bench waswithdrawn on Thursday by the DC Circuit, and the case will be reheard by the full court — a panel that will most likely include 13 judges. In practical terms, this means that July’s judgment cutting off subsidies to consumers who buy insurance plans in federally-operated health exchanges is no more. It has ceased to be. It is, in fact, an ex-judgment.

The reason why this matters is because the plaintiffs in this lawsuit, known as Halbig v. Burwell, are hustling to try to convince the GOP-dominated Supreme Court to hear this case, where they no doubt believe that they have a greater chance of succeeding than in the DC Circuit, as a majority of the active judges in the DC Circuit are Democrats. The Supreme Court takes only a tiny fraction of the cases brought to their attention by parties who lost in a lower court — a study of the Court’s 2005 term, for example, found that the justicesgranted a full argument to only 78 of the 8,517 petitions seeking the high Court’s review that term. The justices, however, are particularly likely to hear cases where two federal appeals courts disagree about the same question of law.

Two hours after the divided DC Circuit panel released its opinion attempted to defund Obamacare, a unanimous panel of the Fourth Circuit upheld the health subsidies that are at issue in Halbig. Thus, so long as both decisions remained in effect, Supreme Court review was very likely. Now that the full DC Circuit has vacated the two Republican judges’ July judgement, Supreme Court review is much less likely.

Although it is possible that the full DC Circuit could agree with the two judges who voted to cut off health subsidies to millions of Americans, this outcome is unlikely. The plaintiffs’ arguments in this case are weak and are unlikely to move judges who do not have a partisan stake in undermining the Affordable Care Act.

The litigants seeking to undermine Obamacare through this lawsuit — Oklahoma Attorney General Scott Pruitt (R), who filed a brief supporting the plaintiffs in this case, admitted in aWall Street Journal op-ed that the purpose of this lawsuit is to cause “the structure of the ACA” to “crumble” — waged a two front effort trying to convince the full DC Circuit not to vacate their two GOP colleagues’ decision.

Meanwhile marriage equality took a few more steps forward and one step back.  Guess whose state provided the step back?

Proponents of equal marriage rights have had a lot to celebrate over the last year, with a series of victories nationwide in state and federal district courts. And while those successes matter a great deal, and have advanced the cause of civil rights at a pace few thought possible, the legal fights at the federal appellate level are just as important, if not more so.

It makes rulings like these so striking.

A U.S. appeals court on Thursday struck down gay marriage bans in both Wisconsin and Indiana, adding to a rush of major victories for the marriage equality movement in the last year alone.

Now that a three-judge panel in Chicago’s 7th Circuit Court of Appeals has ruled unanimously that both Midwestern marriage bans were unconstitutional, a total of 21 states recognize marriage for same-sex couples.

In his ruling, which is available online here (pdf), Judge Richard Posner, a Reagan appointee, wrote. “The discrimination against same-sex couples is irrational, and therefore unconstitutional even if the discrimination is not subjected to heightened scrutiny, which is why we can largely elide the more complex analysis found in more closely balanced equal-protection cases.”

The ruling, a key breakthrough for supporters of same-sex marriage, does not come as too big of a surprise. Just last week, the attorneys arguing against marriage equality faced a barrage of very toughquestions, which they struggled badly to answer.

Indeed, as Chris Geidner reported, Posner referred to arguments from Indiana Solicitor General Thomas Fisher, whose job it was to defend the anti-gay laws, as “pathetic,” “ridiculous,” and “absurd.”

Naturally, then, the 7th Circuit concluded today, “The challenged laws discriminate against a minority defined by an immutable characteristic, and the only rationale that the states put forth with any conviction – that same-sex couples and their children don’t need marriage because same-sex couples can’t produce children, intended or unintended – is so full of holes that it cannot be taken seriously.”

Ouch.

 Eric Holder held a presser in St Louis today to discuss the investigation of the Ferguson Police and other investigations. I’m hoping this helps them.  I still distrust the NOPD and don’t believe anything they say so if the people of Ferguson feel like I do, it will be a pancea waiting for proof.

Attorney General Eric Holder on Thursday opened a broader civil rights investigation of the practices and procedures of the Ferguson Police Departmentin the wake of the Aug. 9 shooting death of Michael Brown, 18, by Ferguson police Officer Darren Wilson.

The Civil Rights Division will investigate whether Ferguson police have engaged in a pattern of civil rights violations, Holder said.

The attorney general also announced that the Justice Department has begun what he called a partnership with the St. Louis County Police Department to assess the county department’s response to the demonstrations that followed the shooting.

The investigation of Ferguson police will include the department’s use of force, traffic stops, searches and arrests, Holder said, adding that Ferguson officials welcomed the inquiry and pledged their cooperation. Justice Department officials said there is no timeline on the length of the investigation, and that it would depend on the cooperation of local authorities.

The goal, Holder said, is to reach an agreement with the department that would establish new tactics to eliminate bias and increase community confidence in the department.

Holder pledged a “fair, thorough investigation” that would result in “lasting, positive change.”

So, that’s some of the news from the justice front.  What’s on your reading and blogging list today?