Hugo Scheiber, Man Reading Newspaper, 1918
Yesterday was a huge news day. The top story was the decision by the DC Circuit Court ruling stating that Trump does not have immunity from prosecution for crimes committed as president. Now Trump must decide by Monday whether to take the case to the Supreme Court.
On Thursday, the Supreme Court will hear arguments regarding the Colorado case arguing that the 14th Amendment makes Trump ineligible to appear on the state’s primary ballot.
Trump is also awaiting a decision from Judge Engoron in the New York fraud case that could potentially bankrupt him.
In addition, Republicans in the House and Speaker Mike Johnson failed miserably as he lost two votes he put on the floor: aid to Israel and impeachment of Homeland Security Secretary Alejandro Mayorkas. On top of that, the head of the RNC announced her resignation.
In the Senate, Mitch McConnell knifed Senator James Lankford in the back after assigning him to negotiated a border bill that included aid to Ukraine and Israel. Democrats gave Republicans everything they wanted, but they backed down on Trump’s orders.
I’ll get to as many of these stories as I can.
Kyle Cheney and Josh Gerstein at Politico: Trump is not immune from prosecution for bid to subvert the 2020 election, appeals court rules.
Former President Donald Trump — and indeed any other former president — may be prosecuted for alleged crimes they committed while in office, a federal appeals court panel ruled Tuesday.
The unanimous 57-page decision from a three-judge panel of the D.C. Circuit Court of Appeals is a major win for special counsel Jack Smith, who is seeking to put Trump on trial this year on federal felony charges stemming from his efforts to overturn the 2020 election.
Trump quickly vowed an appeal, which could be at the Supreme Court by Monday.
“For the purpose of this criminal case, former President Trump has become citizen Trump, with all of the defenses of any other criminal defendant,” the D.C. Circuit judges wrote. “But any executive immunity that may have protected him while he served as President no longer protects him against this prosecution.”
The ruling affirms U.S. District Judge Tanya Chutkan’s historic conclusion that former presidents may be prosecuted for crimes they committed in office, even if those alleged crimes arguably related to their official duties. Trump had argued that former presidents could not be prosecuted for such actions without first being impeached and convicted by Congress.
The judges put their decision on hold only until Monday to allow Trump to ask the Supreme Court to take up the immunity fight on an emergency basis. If he does so, the decision won’t take effect until the high court acts on his request, the appeals panel decreed.
Trump could also ask the D.C. Circuit to rehear the case. But the panel said doing that won’t delay the return of the case to Chutkan, the trial judge, unless the full bench of the D.C. Circuit agrees to a rehearing, which requires a majority of the 11 active appellate judges.
The force of Tuesday’s unanimous ruling Tuesday, backed by two liberal judges and one staunch conservative, may have been worth the wait for Smith. Rather than a splintered decision that could be picked apart more easily, the ruling lays out a groundbreaking legal and political framework for bringing a former president to trial.
The Newspaper, by Aldo Luongo
At The Atlantic, George Conway writes: An Airtight Ruling Against Trump. In a masterful opinion, the D.C. Circuit rejected the former president’s bid for immunity.
On July 24, 1974, when the Supreme Court issued its decision in United States v. Nixon, ordering President Richard Nixon to produce the Watergate tapes, the president turned to his chief of staff, Alexander Haig, to understand what had just happened. He later recounted the exchange in his memoirs:
“Unanimous?” I guessed.
“Unanimous. There’s no air in it at all,” he said.
“None at all?” I asked.
“It’s tight as a drum.”
These words echoed through my mind today, nearly 50 years later, as I read the historic opinion of the United States Court of Appeals for the District of Columbia Circuit in United States v. Trump, holding that former President Donald Trump does not enjoy immunity from prosecution for any crimes he committed in attempting to end constitutional democracy in the United States.
The result was no surprise. As I said last month, no one who attended the oral argument could have believed Trump had any chance of prevailing. The question was timing: How long would an appeal delay Trump’s trial, originally scheduled for March 4? Many of us thought that the decision might come sooner, perhaps within days of the argument, given how quickly the court had scheduled briefing and argument. And by the end of last week, some commentators had, by their own reckoning, reached the “freakout stage” as to why the decision was taking so long.
They—and we—needn’t have worried. Issued exactly four weeks after the argument, the court’s decision came plenty fast. It’s not that often that you get a unanimous 57-page decision on novel questions of law in 28 days. And you almost never get an opinion of this quality in such a short period of time. I’ve read thousands of judicial opinions in my four decades as a law student and lawyer. Few have been as good as this one.
Unanimous. No air. Tight as a drum. The court’s per curiam opinion—per curiam meaning “for the court,” in that no individual judge authored it—is all that and more. It’s a masterful example of judicial craftsmanship on many levels. The opinion weaves together the factual context, the constitutional text, the judicial precedent, history, the parties’ concessions, and razor-sharp reasoning, with no modicum of judicial and rhetorical restraint, to produce an overwhelmingly cohesive, and inexorably convincing, whole. The opinion deserves a place in every constitutional-law casebook, and, most important—are you listening, members of the Supreme Court?—requires no further review.
The opinion far exceeds any commentator’s poor power to add or detract, so I’ll mostly let it speak for itself. The bottom line:
For the purpose of this criminal case, former President Trump has become citizen Trump, with all of the defenses of any other criminal defendant. But any executive immunity that may have protected him while he served as President no longer protects him against this prosecution.
I shared this as a gift link (see above), so you should be able to read the whole piece without a subscription.
You can also check out this article at Just Security: How Long Will Trump’s Immunity Appeal Take? Analyzing the Alternative Timelines.
On the Colorado case, Anne E. Marimow writes at The Washington Post: In Trump’s Colorado case, Supreme Court will make and face history.
The Supreme Court on Thursday will confront the critical question of Donald Trump’s eligibility to return to the White House, hearing arguments in an unprecedented case that gives the justices a central role in charting the course of a presidential election for the first time in nearly a quarter-century.
Winter Moonlit Scene by Hendricks Hallett ( American, 1847-1921)
We finally got some snow here in the Boston area. It snowed overnight on Monday and for most of the day yesterday. It’s also quite cold, but our weather can’t compare to the deep freeze that has hit the South. Dakinikat’s house was only 54 degrees indoors this morning!
There’s another storm moving across the Midwest and it will dump more snow in the East over the weekend. I talked to my sister in Portland, OR last night, and they are also getting below normal temperatures. She said there was an ice storm happening when I called her.
In the news, there’s quite a bit about Trump’s legal messes. This post will focus on those as well as some SCOTUS news.
Yesterday was the first day of the second E. Jean Carroll defamation trial. Trump chose to show up, even though he doesn’t need to be there. He’s in court again today; I have to assume he is there trying to intimidate Carroll. Here’s the latest:
CNN: Takeaways from first day of Trump’s defamation trial.
Donald Trump attended the first day of his civil defamation trial, watching as a jury was selected to determine how much, if any, damages the former president must pay to E. Jean Carroll for his 2019 defamatory statements about Carroll’s sexual assault allegations….
Trump watched as prospective jurors were asked about their political donations to him and his political opponents, whether they believed the 2020 election was stolen and how they got their news. He left court before opening statements to travel to New Hampshire for a campaign event Tuesday evening with the primary one week away.
Trump may return to New York later this week for the rest of the trial, and his lawyers have suggested he could testify in the case, though the judge has ruled that Trump cannot try to contest a previous jury’s verdict that he sexually abused and defamed Carroll….
Trump left court Tuesday before opening statements began, where Carroll’s lawyer Shawn Crowley told the jury that it had already been proven that Trump sexually assaulted Carroll in a high-end department store in the 1990s.
That jury’s finding stemmed from statements Trump made in 2022, while the current case is dealing with statements Trump made while he was president in 2019.
“Donald Trump sexually assaulted E. Jean Carroll. He managed to get her alone in an empty department store one evening and sexually assaulted her. That’s a fact,” Crowley said. “That fact has been proven and a jury sitting in the exact seats where you’re sitting now found that it happened.”
Crowley said that Trump’s attacks on her while he was president “unleashed his followers” and caused her to receive threats. “Trump was president when he made those statements, and he used the world’s biggest microphone to attack Ms. Carroll to humiliate her and to destroy her reputation,” Crowley said.
The damages awarded to Carroll “should be significant, very significant,” her lawyer argued.
“You will also be asked to decide how much money Donald Trump should have to pay as punishment for what he’s done and to deter him and others from doing it again,” Crowley said, noting Trump continued to post about her on social media, even as the trial got underway on Tuesday.
Read more at CNN.
David Kurtz in the TPM Morning Memo: Trump Is Playing With Absolute Fire In The Carroll Case. Is Trump About To Get Rudy’d?
Carroll II, the second trial of Donald Trump for defaming E. Jean Carroll by lying about his sexual assault of her, got underway in Manhattan yesterday, and it’s shaping up to be a colossal financial threat to the former president.
Having lost in Carroll I, where a jury concluded he had raped Carroll, Trump is barred from contesting the fact of the rape in Carroll II. The only question is how big are her damages for his defamation.
Spiders from Mars, Phyllis Shafer (American, b.1958)
While jury verdicts are notoriously difficult to predict, this case has the potential to do to Trump what a DC federal jury did to Rudy Giuliani in the defamation case brought against him by Georgia election workers Ruby Freeman and Shaye Moss. The Giuliani jury reached a verdict against him of $148 million, including punitive damages.
Like Giuliani, Trump has been defiant throughout the two Carroll trials, constantly repeating the defamatory statements with impunity, and persisting in attacking the plaintiff even while trial was underway.
Trump was in court Tuesday as jury selection got underway, but his social media operation launched what was clearly a pre-planned full-scale attack on Carroll, including repeating the defamation. (It was perhaps not a coincidence that a key Trump lawyer resigned the night before.)
Trump is risking a substantial punitive damages award by continuing to attack his accuser. It does appear to be a calculated risk, not merely shooting from the hip inadvisably. And that should only fuel the arguments Carroll can make to the jury about how severely it should punish Trump for his misconduct.
In opening statements, Carroll’s lawyers seized on the morning’s developments to urge the jury to make Trump pay until it hurt enough to get him to stop defaming Carroll:
CNBC on today’s fireworks: Judge snaps at Trump lawyer during E. Jean Carroll defamation trial: ‘I said sit down!’
A New York federal judge snapped at a lawyer for Donald Trump on Wednesday after she again asked for a delay in his sex assault defamation trial so that the former president could attend his mother-in-law’s funeral.
“I said sit down!” Judge Lewis Kaplan told Trump’s lawyer Alina Habba.
Habba replied, “I don’t like to be spoken [to] like that … I will not speak to you like that.”
Kaplan shot back, “It is denied. Sit down.”
The judge several times has rejected Habba’s request for a delay in the civil trial in U.S. District Court in Manhattan so that Trump can attend the funeral of Melania Trump’s mother, Amalija Knavs, in Florida on Thursday without missing attending the trial that day.
The tense exchange, which Trump was in court to see, came shortly before the writer E. Jean Carroll was called to the witness stand to testify on the trial’s second day.
Sunset Lake Koocanusa, Patrick Markle, contemporary Canadian artist
From Twitter, NBC’s Kyle Griffin provided quotes from Carroll’s testimony:
“I’m here because I was assaulted by Donald Trump and when I wrote about it, he said it never happened. He lied. And he shattered my reputation.” [….]
E. Jean Carroll on the stand: “I’m 80 years old, so I spent 50 years building a reputation as a magazine and magazine journalist, both in articles and an advice column … People appreciated my articles because I stuck to the truth and used the facts.”
“Previously I was known simply as a journalist, and now I’m known as a liar, a fraud, and a whack job.”
“He has continued to lie. He lied last month. He lied on Sunday. He lied yesterday.” [….]
“To have the president of the United States, one of the most powerful persons on earth, call me a liar for three days and say it 26 times — I counted them. It ended the world I had been living in and I lived in a new world.” [….]
E. Jean Carroll says ever since she came forward with her claim of Trump sexually assaulting her, messages from people haven’t stopped — sometimes receiving hundreds per day. Carroll says the common themes are: accusing her of being a liar, hurting actual victims, and saying she’s ugly.
Josh Gerstein and Kyle Cheney at Politico on another Trump court case: Appeals court won’t revisit Twitter’s fight against Trump probe warrant. But conservative D.C. Circuit judges joined an opinion exalting executive privilege.
A federal appeals court won’t reconsider a ruling that allowed special counsel Jack Smith to access private communications from Donald Trump’s Twitter account.
But even as the court declined to revisit the issue on Tuesday, the court’s conservative judges united to scold their liberal colleagues and the lower-court judge who initially decided the case. Those prior rulings, the conservatives said, amounted to a significant, unjustified erosion of executive privilege.
“Judicial disregard of executive privilege undermines the Presidency, not just the former President being investigated in this case,” the judges wrote in an opinion authored by Trump appointee Neomi Rao.
All four Republican-appointed judges on the D.C. Circuit Court of Appeals extolled the virtues and importance of the president’s right to confidential communications and advice, even though they concluded that the underlying dispute over Smith’s access to Trump’s private Twitter messages was moot.
Ucluelet Sundown, Nicholas Bott (Dutch-Canadian, 1941-2021
Last February, as part of Smith’s investigation of Trump’s bid to subvert the 2020 election, prosecutors obtained a voluminous trove of Trump’s Twitter data after secret court proceedings. A district judge ordered the company, now known as X, to turn over the data without informing Trump, and a three-judge panel of the D.C. Circuit later upheld that decision.
That precedent, the D.C. Circuit’s Republican-appointed judges worried Tuesday, could lead federal and state prosecutors to invade a sitting president’s privileged materials — without advance notification — by simply accessing the materials via a third party like a social media or phone company.
The four conservatives ultimately agreed with seven Democratic-appointed judges on the court that the earlier decision of the three-judge panel — which upheld a $350,000 contempt fine against Twitter — should not be revisited by the full bench of the appeals court. Indeed, despite the lengthy exposition on the merits of executive privilege, no D.C. Circuit judge even called for a vote on rehearing the case by the full bench.
We can’t forget Aileen Cannon and her consistent efforts to help Trump in the stolen documents case.
This is from Dennis Aftergut and Lawrence Tribe at Slate: Judge Aileen Cannon Is Quietly Sabotaging the Trump Classified Documents Case.
On Friday, District Judge Aileen Cannon issued a new order in the Donald Trump classified documents case adding to the mountain of evidence that she is firmly in the former president’s pocket. Trump appointed Cannon in 2020 and the Senate confirmed her appointment in the days after he lost the 2020 election. It’s deeply offensive to the rule of law for judges to bend the law to benefit those who put them on the bench. Sadly, Cannon does just that.
Cannon’s new ruling rejected special counsel Jack Smith’s entirely standard request that she order Trump to state whether he intends to rely on an “advice of counsel” defense ahead of the trial, currently scheduled for May 20. Advance notice of the defense helps expedite a trial because defendants asserting it need to provide additional discovery to prosecutors—raising the defense means that defendants must disclose all communications with their attorneys, as the defense waives the attorney–client privilege.
Judge Cannon’s brief order asserted that Smith’s motion was “not amenable to proper consideration at this juncture, prior to at least partial resolution of pretrial motions” and further discovery.
Sound innocuous? It’s anything but. Instead, it’s part of a pattern we’ve already seen of Cannon laying the groundwork for delaying Trump’s trial—until it’s too late for a jury to be empaneled and the case tried to verdict before the election.
That is, of course, just what Trump has been angling for.
Back in November, Cannon issued an order slow-walking all pretrial motions in the case. As Politico reported, she “has postponed key pretrial deadlines, and she has added further slack into the schedule simply by taking her time to resolve some fairly straightforward matters.”
René Magritte, The Echo, 1944
As Brian Greer, a former Central Intelligence Agency attorney, told Politico, Cannon’s decision not to expedite pretrial motions “could be seen as a stealth attempt to delay the ultimate trial date without actually announcing that yet.”
New York University law professor Andrew Weissmann, the mild-mannered and knowledgeable former deputy to special counsel Robert S. Mueller, put it with uncharacteristic bluntness: “Judge Cannon’s bias is showing over and over again.” On Twitter he declared her to be “in the bag for Trump.”
By continuing to maintain the trial date while rendering the date virtually impossible to keep, Cannon evidently hopes to maintain plausible deniability from charges like Greer’s or Weissmann’s. At the same time, her pretense that the trial will commence on schedule prevents any attempt by Fulton County, Georgia, District Attorney Fani Willis to seek to advance into May the scheduling of her prosecution of Trump for attempting to interfere with Georgia’s 2020 election.
And this is from Igor Derysh at Salon: “Completely out of bounds” Trump filing would delay docs case. Expert says expect a “harsh” response.
Former President Donald Trump’s legal team in a series of new filings on Tuesday signaled that they plan to argue that the intelligence community and the investigation into classified documents found at Mar-a-Lago was “politically motivated and biased.”
The lawyers in a filing to Trump-appointed U.S. District Judge Aileen Cannon accused special counsel Jack Smith of withholding records from Trump and flouting “basic discovery obligations,” according to The Messenger.
Trump attorneys Chris Kise and Todd Blanche alleged that Smith’s team is “seeking to avert its eyes from exculpatory, discoverable evidence in the hands of the senior officials at the White House, DOJ, and FBI who provided guidance and assistance as this lawless mission proceeded, and the agencies that supported the flawed investigation from its inception such as NARA, the Office of the Director of National Intelligence (‘ODNI’), and other politically-charged components of the Intelligence Community.”
The filing requested reams of additional materials from Smith’s team, arguing that the “prosecution team” is larger than the FBI and DOJ.
“The prosecution team includes the Intelligence Community agencies and components that participated in the investigation, such as during classification reviews and damage assessments,” Trump’s lawyers wrote. “This includes the Office of the Director of National Intelligence and the agencies identified in…the Indictment as ‘equity’ holders of some of the documents at issue: the Central Intelligence Agency, the Defense Department, the National Security Agency, the National Geospatial Intelligence Agency, the National Reconnaissance Office, the Department of Energy, and the Statement [sic] Department.”
Former U.S. Attorney Joyce Vance told MSNBC that the filing furthers the “fantastical narrative that Trump is the victim” of a politicized federal branch.
Vance said that while it may be “warranted” for Smith’s team to go back and talk to all of the FBI and DOJ personnel involved in the case, the other parts are “just completely out of bounds.”
“They want the special counsel to go and work with the entire intelligence community to turn over everything in the intelligence community’s possession that touches on anything to do with this,” said Vance. “So I think the safe thing to say is that we should wait for Jack Smith’s response, which will undoubtedly be pretty harsh, given what the defense is requesting here.”
Vance added that the filing also gives Judge Cannon, who has repeatedly delayed proceedings in the case, the “opportunity to delay things even further.”
At what point will it be time for DOJ to appeal to the 11th Circuit?
What’s happening in the Supreme Court? I’ll be brief:
The Supreme Court is about the hear a very scary case. Joyce Vance from Civil Discourse last night: Tomorrow at the Supreme Court.
Tomorrow, Wednesday, the Supreme Court will hear argument in Loper Bright Enterprises v. Raimondo, a pair of cases we’ve discussed in the past that could let conservatives achieve a long-term goal: Disassembling what they call the nanny state and what I think of as executive branch agencies that conduct the nation’s business day in and day out. The goal is to undo 40 years of administrative jurisprudence (so much for precedent!) and end the federal government’s ability to establish and administer rules that balance differing interests and make life better for all of us. Administrative agencies use their expertise to balance different interests and implement procedures on matters like health and safety concerns or consumer financial protection. Because that involves costs and limitations on businesses that can prevent them from being as profitable as they would like to be, some folks oppose leaving these decisions in the hands of career public servants. You will be able to listen to the oral argument here.
Sunset on Mugnone river, 1884, Ulvi Liège (Italian, 1859 – 1938)
Loper Bright is an effort to end or at least severely limit the reach of Chevron deference, a longstanding doctrine that determines when the courts are supposed to defer to an executive branch agency’s interpretation of a law. In 1984, the Supreme Court ruled that courts should defer to administrative agencies’ interpretation of laws when the statutory text is silent or ambiguous. That permits experts and career professionals to decide how to implement vague laws. This case is about whether the courts should substitute their judgment for those of experts on issues involving science, medicine, environmental protection, and so forth.
Conservatives have long sought to prevent federal agencies, like the EPA but also others, from regulating businesses. This case involves a sympathetic-looking small business, overwhelmed by an agency regulatory decision, to make the case that courts should be making the call, not “bureaucrats”. The cornerstone of these cases is the implication that the nanny state is making life impossible for the little guy.
The conservative group Alliance Defending Freedom described Loper Bright like this: “A National Marine Fisheries Service regulation requires that herring fishing boats allow an additional person on board their small boats to serve as a monitor, tracking compliance with federal regulations. The fishermen must also pay the monitor’s salary of around $700 per day. Overall, the regulation reduces fishing profits by about 20%. Loper Bright Enterprises, a fishing company in New England, and other fisheries sued to challenge this federal government rule, arguing that NMFS lacked statutory authority to force them to pay for these monitors.” Of course, this narrative ignores the importance of monitoring. And the point of the litigation isn’t really to provide relief for small businesses. It’s all about shifting decision-making about the regulation of big business out of the hands of agencies and into the courts, where conservatives believe they get a better reception. This has been the work of decades—ever since the Chevron case was decided.
Read more at Civil Discourse.
Neil Gorsuch is in the spotlight for this case. Three pieces to check out:
CNN: Neil Gorsuch has a grudge against federal agencies. He holds their fate in his hands.
The Guardian: Gorsuch urged to recuse himself from supreme court case over ties to oil baron.
The New Republic: Billionaire Poised to See Return on Investment in Neil Gorsuch.
Another Scotus case could affect Jack Smith’s prosecution of Trump.
As the Supreme Court gears up to decide if Donald Trump’s claims of immunity from prosecution are legitimate, another case in front of the court threatens to upend special counsel Jack Smith’s prosecution of him, Politico reported.
Incredible Winter Evening, by Paul Evans, 2023
The case, Joseph W. Fischer v. United States, has raised the issue of whether the Department of Justice has been improperly using a law originally aimed at curbing financial crimes to prosecute Jan. 6 defendant Joseph Fischer. As Politico points out, if the Court rules in Fischer’s favor, it would undermine Smith’s use of the law against Trump, as well as other Jan. 6 defendants.
Two of the four counts in Smith’s indictment are for obstruction of an official proceeding and for conspiracy to do so. According to Politico, those crimes “are part of a relatively recent criminal statute governing financial disclosures known as the Sarbanes-Oxley (or “SOX”) Act, which was enacted following the Enron corporate accounting scandal, and which makes it a crime to obstruct an official proceeding of the U.S. government.”
So far, the Justice Department has used the law to charge over 300 Jan. 6 defendants, and more than 150 have been convicted.
Fischer, as well as other defendants, argues that the “obstruction of an official proceeding” part of the law was only meant to apply narrowly to financial crimes — not the broad definition as relied on by the government.
“The impact of Fischer on the Jan. 6 trial against Trump might not be known until after the Supreme Court wraps up its term in June, at which point it could knock out half of Smith’s counts against Trump. And it could also disrupt the convictions of many Jan. 6 defendants already serving time for their role in the insurrection,” Politico’s report stated.
Read the full report over at Politico.
That’s it for me today. What stories have you been following?
By Vanessa Stockard
Last year in Massachusetts we had a winter with almost no snow. Weather people quite often predicted it, but it never came. It really bothered me. I realized how much I love snowstorms and how much I miss snow when it doesn’t arrive. It looks like this year will be another mild winter with very little snow. We got a few inches recently, but mostly we’re getting rain.
I’m far from alone in missing snow. A few days ago, I came across two articles about what climate change is doing to our winters.
Zoë Schlanger at The Atlantic: The Threshold at Which Snow Starts Irreversibly Disappearing.
In January 1995, when The Atlantic published “In Praise of Snow,” Cullen Murphy’s opus to frozen precipitation, snow was still a mysterious substance, coming and going enigmatically, confounding forecasters’ attempts to make long-term predictions. Climate change registered to snow hydrologists as a future problem, but for the most part their job remained squarely hydrology: working out the ticktock of a highly variable yet presumably coherent water cycle. “We still don’t know many fundamental things about snow,” Murphy wrote. “Nor do we understand its relation to weather and to climate—the dynamics of climate being one of the perennials on the ‘must figure out’ list of science.”
In January 2024, at long last, someone has figured out a formula of sorts for how snow reacts to climate change, and the answer is: It reacts nonlinearly. Which is to say, if we think snow is getting scarce now, we ought to buckle up.
Nonlinear relationships indicate accelerated change; shifts are small for a while but then, past a certain threshold, escalate quickly. In a paper published Wednesday in the journal Nature, two Dartmouth researchers report finding a distinctly nonlinear relationship between increasing winter temperatures and declining snowpacks. And they identify a “snow loss cliff”—an average winter-temperature threshold below which snowpack is largely unaffected, but above which things begin to change fast.
That threshold is 17 degrees Fahrenheit. Remarkably, 80 percent of the Northern Hemisphere’s snowpack exists in far-northern, high-altitude places that, for now, on average, stay colder than that. There, the snowpack seems to be healthy and stable, or even increasing. But as a general rule, when the average winter temperature exceeds 17 degrees (–8 degrees Celsius), snowpack loss begins, and accelerates dramatically with each additional degree of warming.
Already, millions of people who rely on the snowpack for water live in places that have crossed that threshold and will only get hotter. “A degree beyond that might take away 5 to 10 percent of the snowpack, then the next degree might cut away 10 to 15 percent, then 15 to 20 percent,” Alexander Gottlieb, the first author on the paper, told me over the phone as I looked out my window in New York City, where it has rained several times over the past few days. “Once you get around the freezing point”—32 degrees Fahrenheit—“you can lose almost half of your snow from just an additional degree of warming,” he said. New York City, which was recently reclassified as a “humid subtropical” climate, has clocked nearly 700 consecutive days with less than an inch of snowfall. It’s definitely over the snow-loss cliff, and as global temperatures increase, more places will follow.
By Malysheva Nastenka
Gottlieb and his co-author, Justin Mankin, figured this out by looking at how changes in temperature and precipitation drove changes in snowpack in 169 river basins across the Northern Hemisphere from 1981 through 2020. Using machine learning, they found a clear signal that human-induced climate change was indeed forcing changes in the snowpack in the places where most people live. The sharpest declines were in the watersheds of the southwestern and northeastern United States, and in Central and Eastern Europe. “In places where we are able to identify this really clear signal that climate change has reduced spring snowpack, we expect that to really only accelerate in the near term,” he said. “Those are places where the train has already kind of left the station.” Indeed, the Hudson River watershed, in which New York City sits, experienced among the steepest declines over that period. In the Northeast, which is not as reliant on spring snowmelt for water, that loss is felt most keenly as a loss of recreation; whole economies in the Northeast are based on skiing.
In the Mountain West, the stakes are even higher. Hydrologists already worry about the future reliability of the region’s snow-fed water supply: Previous research found snowless winters in the Mountain West are likely to be a regular occurrence by mid-century. But crucially, Gottlieb doesn’t see any room for cheerfulness about individual years with off-the-charts snowfall, such as last year’s record snowpack in the Colorado River basin. “This work really shows that we can definitely still get these one-off anomaly years that are incredibly wet, incredibly snowy, but the long-term signal is incredibly clear,” he said. Once you’re over the cliff, there’s no going back. The snow will keep disappearing.
In this piece, Lora Kelley interviews Zoë Schlanger (author of the previous article) on “the sense of loss when climate change transforms winter”: The Feeling of Losing Snow. Kelley and Schlanger mostly rehash the information from the previous article, but they also discussed the feeling of losing snowy winters:
Zoe: One of the hydrologists I spoke with was a former ski-patrol person, and he was talking so beautifully about what it meant for him to ski on a cold, bright day high in the mountains in Utah with perfect powder. It was just so vital to his enjoyment of life. For future generations, snow could just become slush, or not be there at all.
I don’t ski. I don’t live in the mountains. But even for me, there’s a sense of loss. It makes me think of a word that an Australian philosopher coined a number of years ago: solastalgia, which is essentially the sense of homesickness for an environment that you never left, but is leaving without you in some way. I feel like we’re all experiencing that when there are these touchstones of the year that seem to not be there anymore. It’s a strange sense of in-place homesickness.
Lora: This strikes me as a really stark example of climate change affecting how people experience nature. How do you think about these more obvious losses versus less visible, more incremental changes to the environment?
Zoë: Snow is a reminder that, actually, a lot of the changes we’re dealing with aren’t that incremental. We may not be able to see rising temperatures in quite the same way. But in many cases, those changes are just as sudden and dramatic and are happening faster than people thought they were. The wildfires we saw last year, for example, were wildly out of proportion from anything we’ve seen before. Records aren’t getting broken by small degrees now. They’re getting broken by leaps and bounds.
Climate change is real, it’s happening quickly, and it affects our lives in so many ways.
In the news, the Supreme Court will hear a case about whether hospitals can be required to treat pregnant women who will likely die without abortion care. Rolling Stone: The Supreme Court Will Decide if States Can Force Hospitals to Let Women Die.
The Supreme Court will decide this term whether states can force doctors to turn away patients suffering serious, life-threatening medical complications, or if doctors will be allowed to provide standard medical care to those patients: abortions. The court announced last week it will hear arguments over the Emergency Medical Treatment and Active Labor Act, or EMTALA, in April.
By Vicky Mount
EMTALA is a more than three-decade-old federal law that says hospitals that accept Medicare (most hospitals in this country) cannot turn away anyone with an emergency medical condition; they are required to provide stabilizing treatment to prevent that person from suffering serious medical complications. After Roe v. Wade was overruled in 2022, the Biden administration issued guidance clarifying that if a pregnant patient arrives at a hospital with an emergency condition that could only be stabilized with an abortion, the hospital is required to provide that care — regardless of state law.
To the Supreme Court, Idaho has argued that states — not doctors, and not the federal government — should be permitted to decide what kind of emergency medical care women can receive. “The federal government cannot use EMTALA to override in the emergency room state laws about abortion any more than it can use it to override state law on organ transplants or marijuana use,” the state’s attorney general wrote in its petition to the high court.
Lawyers for the Department of Justice sued the state of Idaho last year over the criminal abortion ban passed by the GOP-controlled legislature, which only allows for abortions to prevent a patient’s death — language one Idaho doctor said “is not useful to medical providers because this is not a dichotomous variable.”
The Biden administration argued the Idaho law violates care requirements mandated by EMTALA, and a lower court agreed, blocking the law as it applied to medical emergencies. But on Jan. 5, the Supreme Court lifted the lower court injunction, reinstating the ban and sending the chilling message to Idaho doctors that they cannot offer the care they have been trained to provide to pregnant patients without fear of criminal prosecution.
Nancy Northup, president of the Center for Reproductive Rights, called the Supreme Court’s intervention in the case “deeply troubling.”
“EMTALA is currently the only federal protection for patients who need emergency abortions. If the Supreme Court eviscerates that, there is no doubt that people will die,” Northup said in a statement.
More SCOTUS news from The Washington Post: Supreme Court to review restrictions on homeless encampments.
The Supreme Court said Friday it will consider whether state and local officials can punish homeless individuals for camping and sleeping in public spaces when shelter beds are unavailable.
The justices will review a lower court decision that declared it unconstitutional to enforce anti-camping laws against homeless individuals when they have nowhere else to sleep.
Photo by Frank Herfort
The U.S. Court of Appeals for the 9th Circuit, which covers Western states, including California, Oregon and Washington, first held in 2018 that the Eighth Amendment’s protection against cruel and unusual punishment prohibits cities from criminalizing public camping when shelter is unavailable.
The city of Grants Pass, Ore., asked the justices to overturn a similar recent decision involving civil fines and warned that the ruling would paralyze cities across the West from addressing safety and public health risks created by tents and makeshift structures. The 9th Circuit’s decision, the officials said, is standing in the way of a comprehensive response to the growth of public encampments.
“The consequences of inaction are dire for those living both in and near encampments: crime, fires, the reemergence of medieval diseases, environmental harm and record levels of drug overdoses and deaths on public streets,” lawyers for the city told the high court.
News on one more SCOTUS case from The Hill: Supreme Court steps into Starbucks union fight.
The Supreme Court agreed Friday to hear Starbucks’s appeal of a decision ordering the coffee chain to reinstate seven terminated employees, who were part of a high-profile union drive and became known as the “Memphis Seven.”
With implications for labor organizing more broadly, the justices will take up the case to decide the proper standard for court injunctions requested by the National Labor Relations Board (NLRB) as they battle against employers in administrative proceedings.
The injunctions, aimed at keeping the status quo, have forced companies to reinstate employees, keep facilities open and pause corporate policy changes as the NLRB adjudicates alleged unfair labor practices.
Federal appeals courts have been split on what test the NLRB must clear to receive such an order, however.
Starbucks, backed by the U.S. Chamber of Commerce and other business interests, argues that some courts — like the one that ordered the Memphis Seven be reinstated — have been too lenient, emboldening the NLRB to interfere with employers without due cause.
“That split carries enormous consequences for employers nationwide and unacceptably threatens the uniformity of federal labor law,” Starbucks’s attorneys wrote to the justices.
Hunter Biden has reversed course and offered to testify behind closed doors in the House. The Guardian: Hunter Biden offers to testify privately if House Republicans issue new subpoena.
Hunter Biden offered on Friday to comply with any new subpoena and testify in private before House Republicans seeking to impeach his father over alleged but unproven corruption, an attorney for Joe Biden’s son said.
By Troy Brooks
“If you issue a new proper subpoena, now that there is a duly authorised impeachment inquiry, Mr Biden will comply for a hearing or deposition,” Abbe Lowell wrote to James Comer and Jim Jordan, the Republican chairs of the oversight and judiciary committees.
“We will accept such a subpoena on Mr Biden’s behalf.”
Republicans are interested in Hunter Biden’s business dealings and struggles with addiction. Outside Congress, he faces criminal charges over a gun purchase and his tax affairs that carry maximum prison sentences of 25 and 17 years. In Los Angeles on Thursday, he added a not guilty plea in the tax case to the same plea in the gun case.
Biden previously refused to comply with a congressional subpoena for testimony in private, giving a press conference on Capitol Hill to say he would talk if the session were public.
On Wednesday, Comer held a hearing to consider a resolution to hold Biden in contempt of Congress, a charge that can result in a fine and jail time.
The hearing descended into chaos with Biden and Lowell making a surprise appearance, sitting in the audience while Republicans and Democrats traded partisan barbs. The resolution was sent to the full House for a vote. The White House said Joe Biden had not been told of his son’s plan to attend the oversight hearing.
Congressional Republicans are dead set on taking more funding away from the IRS, even though–or maybe because–the extra money has resulted in millions more income for the government. Raw Story:
The Internal Revenue Service said Friday that it has collected more than $500 million from wealthy tax dodgers since 2022, thanks to a funding boost that is now in jeopardy as Republican lawmakers work to claw back tens of billions of dollars from the agency.
The IRS has used a budget increase approved under the Inflation Reduction Act to ramp up enforcement efforts, targeting millionaires over significant sums of unpaid taxes. The agency announced Friday that it has retrieved $520 million through its new initiatives.
“This is why we fought for a fully funded IRS, and why it’s so reckless for Republicans to try to slash its budget again,” Rep. Gerry Connolly (D-Va.) wrote in response to the agency’s announcement.
The congressional GOP, which has long worked to starve the IRS of funding in service to rich tax cheats, is aiming to more quickly implement $20 billion in cuts that they secured as part of last year’s bipartisan deal to raise the debt ceiling, potentially compromising tax enforcement. The $20 billion represents a quarter of the $80 billion IRS funding boost in the Inflation Reduction Act, which Republicans unanimously opposed.
Under a spending tentative agreement that congressional leaders announced this past weekend, the $20 billion in IRS cuts would be frontloaded to 2024 instead of being spread out over two years. The deal still must pass Congress—hardly a forgone conclusion as far-right Republicans push House Speaker Mike Johnson (R-La.) to back out of the agreement, complaining that government spending is too high overall.
Johnson is also aiming to slash an additional $10 billion from the tax agency’s 2025 funding.
A couple of 2024 campaign stories:
CNN: Biden campaign grapples with undecided voters who don’t yet believe Trump could be the nominee.
Even as the Biden reelection campaign forges ahead with preparations for another potential general election match-up between Biden and his predecessor, it is grappling with a stubborn reality: The majority of undecided voters simply do not seem to believe – at least not yet – that Donald Trump is likely to be the Republican presidential nominee.
According to the campaign’s internal research, this is the case for most of the undecided voters that the campaign is targeting – nearly three-in-four of them, senior Biden campaign officials told CNN. Those officials said one of the biggest reasons driving this is the simple fact that many voters are not paying close attention to the election, including the ins and outs of the GOP nomination process.
“You can’t conceive of how tuned out these folks are,” one senior campaign official said.
To that end, Biden campaign officials see the task of helping voters recognize that Trump is a strong frontrunner as one of their most important and urgent challenges, with the first GOP caucus in Iowa now just days away. A key part of that work is painting a vivid picture of what a second term of a Trump White House would look like.
At some point in the near future, Biden campaign officials say they expect that a switch will turn on for many of these voters who are not yet convinced that Trump is likely to be on the ballot in the fall. As one senior official put it, a realization will hit: “Oh s—, it is an election between that guy and that guy.”
But what’s impossible for the campaign to predict at this point in the election cycle is when exactly it will click for voters that “that guy” – Trump – is poised to be the GOP presidential nominee. Just 20% of the public has been paying a lot of attention to the 2024 presidential campaign, according to an AP-NORC poll from the end of last year; meanwhile, 47% said they have paid little or no attention.
Lisa Lerer at The New York Times: On the Ballot in Iowa: Fear. Anxiety. Hopelessness.
Across Iowa, as the first nominating contest approaches on Monday, voters plow through snowy streets to hear from candidates, mingle at campaign events and casually talk of the prospect of World War III, civil unrest and a nation coming apart at the seams.
Four years ago, voters worried about a spiraling pandemic, economic uncertainty and national protests. Now, in the first presidential election since the siege on the Capitol on Jan. 6, 2021, those anxieties have metastasized into a grimmer, more existential dread about the very foundations of the American experiment.
“You get the feeling in Iowa right now that we’re sleepwalking into a nightmare and there’s nothing we can do about it,” said Doug Gross, a Republican lawyer who has been involved in Iowa politics for nearly four decades, ran for governor in 2002 and plans to support Nikki Haley in the state’s caucuses on Monday. “In Iowa, life isn’t lived in extremes, except the weather, and yet they still feel this dramatic sense of inevitable doom.”
Donald J. Trump, the dominant front-runner in the Republican primary race, bounces from courtroom to campaign trail, lacing his rhetoric with ominous threats of retribution and suggestions of dictatorial tendencies. President Biden condemns political violence and argues that if he loses, democracy itself could falter.
Bill Bradley, 80, who served for 18 years as a New Jersey senator, remembered when he ran for the Democratic presidential nomination in 2000, spending more than 75 days in Iowa during his bid. “We debated health care and taxes, which is reasonable,” he said, adding, “Civil war? No. World War III? No, no, no.”
This presidential race, he said, is “a moment that is different than any election in my lifetime.”
Read more at the NYT.
Photographer unknown
There is so much Trump legal news today, that I’m just going to link to the articles, and you can decide what you want to read.
Politico: How one judge is slowing down one of Trump’s biggest criminal cases.
The New York Times: Court Papers Offer Glimpse of Trump’s Defense in Classified Documents Case.
AP: Donald Trump ordered to pay The New York Times and its reporters nearly $400,000 in legal fees.
The Messenger: Trump’s Courtroom Outbursts in New York May Hurt His Appellate Prospects, Experts Say.
The Daily Beast: Trump Scores Rare Legal Win With Pyramid Scheme Lawsuit.
The Messenger: E. Jean Carroll Wants Judge to Stop Trump From Turning Trial Into a ‘Circus’
That’s all I have for you today. What else is happening?
By Matt McCarthy, Surreal Cat Art
Today is the third anniversary of the January 6, 2001 Capitol insurrection, which Trump incited and applauded. It was a failed coup attempt–a last ditch effort to keep Trump in power after all his legal efforts had failed.
Yesterday, President Biden spoke about the insurrection in the first speech of his campaign for reelection, and it was a barn-burner.
David Smith at The Guardian: Fired-up Biden shows gloves are off in January 6 anniversary speech.
This time it’s personal. On Friday Joe Biden tore into his predecessor Donald Trump as never before. He brimmed with anger, disdain and contempt. He apparently had to stop himself from swearing. So much for “when they go low, we go high” – and plenty of Democrats will be just fine with that.
If Biden was seeking to jolt his half-conscious 2024 re-election campaign into life, this may have done the trick. The palpable loathing of Trump took a good 10 or 20 years off him. Keep hating like this and he might do a Benjamin Button all the way to election day.
There is no better illustration of Biden’s evolution than a speech he delivered on the first anniversary of the January 6 insurrection. On that occasion, he denounced a “web of lies” but never mentioned Trump by name, preferring to cite the “former president”. Those were still the days when he would talk about “the former guy” and get a laugh.
Two years on, in an address near Valley Forge, Pennsylvania, Biden spoke the name “Trump” more than 40 times in less than an hour as he warned that his likely 2024 opponent would sacrifice American democracy to put himself in power. The 81-year-old president generally seems like a grandfatherly figure predisposed to give people the benefit of the doubt, which makes his detestation of Trump all the more striking.
Trump’s failure to act as a violent mob stormed the US Capitol, despite the pleas of staff and family members, was “among the worst derelictions of duty by a president in American history”, Biden said, noting that Trump went on to lose 60 court cases that took him back to the truth “that I had won the election and he was a loser”….
The president went on to recall how Trump has called the insurrectionists “patriots” and claimed there was a “lot of love” on January 6. At that, Biden shook his head, blinked and let out a gasp of disbelief, as if stunned anew by the assertion. “The rest of the nation, including law enforcement, saw a lot of hate and violence,” he said.
Biden furiously denounced political violence and Trump’s habit of joking about the big lie-influenced intruder who attacked Paul Pelosi, the former House speaker Nancy Pelosi’s husband, with a hammer, saying: “And he thinks that’s funny. He laughed about it. What a sick – ”
He halted. At the last moment, the president of the United States had saved himself from uttering a profanity. The urge coursed through his body and found relief in his hands, which clenched into fists, as the crowd filled in with laughter and whooping. “My God,” Biden said. “I think it’s despicable, seriously, not just for a president but for any person to say that.”
Read the rest at The Guardian. Read the full transcript of Biden’s speech at The White House site.
By Andrey Scherbak, Russian artist
This review of the speech is by Reid J. Epstein at The New York Times: Biden Condemns Trump as Dire Threat to Democracy in a Blistering Speech.
President Biden on Friday delivered a ferocious condemnation of Donald J. Trump, his likely 2024 opponent, warning in searing language that the former president had directed an insurrection and would aim to undo the nation’s bedrock democracy if he returned to power.
On the eve of the third anniversary of the Jan. 6, 2021, attack on the Capitol by Mr. Trump’s supporters, Mr. Biden framed the coming election as a choice between a candidate devoted to upholding America’s centuries-old ideals and a chaos agent willing to discard them for his personal benefit.
“There’s no confusion about who Trump is or what he intends to do,” Mr. Biden warned in a speech at a community college not far from Valley Forge in Pennsylvania, where George Washington commanded troops during the Revolutionary War. Exhorting supporters to prepare to vote this fall, he said: “We all know who Donald Trump is. The question is: Who are we?”
In an intensely personal address that at one point nearly led Mr. Biden to curse Mr. Trump by name, the president compared his rival to foreign autocrats who rule by fiat and lies. He said Mr. Trump had failed the basic test of American leaders, to trust the people to choose their elected officials and abide by their decisions.
“We must be clear,” Mr. Biden said. “Democracy is on the ballot. Your freedom is on the ballot.”
The harshness of Mr. Biden’s attack on his rival illustrated both what his campaign believes to be the stakes of the 2024 election and his perilous political standing. Confronted with low approval ratings, bad head-to-head polling against Mr. Trump, worries about his age and lingering unease with the economy, Mr. Biden is turning increasingly to the figure who has proved to be Democrats’ single best motivator.
In a speech in New Hampshire, Liz Cheney also issued a dire warning.
The Daily Beast: Liz Cheney Warns That Voting for Trump in 2024 Could Be ‘Last Vote You’ll Ever Cast.’
On the eve of the third anniversary of the Jan. 6 insurrection, former Rep. Liz Cheney (R-WY) warned the 2024 election could be the nation’s last.
Speaking to a room full of Dartmouth College students, Cheney expressed her belief that former President Donald Trump would refuse to hand over the reins of power if elected to a second term.
“He won’t leave office,” Cheney said. “He already tried not to leave office once. So I think there’s a lot of living in a fantasy world that’s going on with Republicans telling themselves, ‘Look, we’ll vote for him, it won’t be so bad.’ It may well be the last real vote you ever get to cast. It will be that bad.”
Giant Cats, artist unknown
What’s more, Cheney looks at her former colleagues in Congress and sees a group of enablers who would happily acquiesce to Trump’s designs and help muscle him back to power if the 2024 election result is in doubt.
The biggest enabler of all, Cheney said, might be her former “good friend” Mike Johnson—the backbencher turned Speaker of the House.
If no presidential candidate is able to secure 270 electoral votes in November, the decision could head to a House floor controlled by Johnson, the architect of the House GOP’s legal efforts to swing the last election to Trump.
“I think we need to be concerned about a Mike Johnson speakership, particularly in an instance where there’s a contested election,” Cheney said on Friday. “It’s a dangerous situation if the Republicans are in the majority.”
The AP discusses the status of the January 6 criminal investigations and trials, as well the unsolved mystery of who planted two pipe bombs.: Hundreds of convictions, but a major mystery is still unsolved 3 years after the Jan. 6 Capitol riot.
Authorities are still working to identify more than 80 people wanted for acts of violence at the Capitol and to find out who placed pipe bombs outside the Republican and Democratic national committees’ offices the day before the Capitol attack. And they continue to regularly make new arrests, even as some Jan. 6 defendants are being released from prison after completing their sentences.
The cases are playing out at the same courthouse where Donald Trump is scheduled to stand trial in March in the case accusing the former president of conspiring to overturn his 2020 election loss in the run-up to the Capitol attack….
More than 1,230 people have been charged with federal crimes in the riot, ranging from misdemeanor offenses like trespassing to felonies like assaulting police officers and seditious conspiracy. Roughly 730 people have pleaded guilty to charges, while another roughly 170 have been convicted of at least one charge at a trial decided by a judge or a jury, according to an Associated Press database.
Only two defendants have been acquitted of all charges, and those were trials decided by a judge rather than a jury.
About 750 people have been sentenced, with almost two-thirds receiving some time behind bars. Prison sentences have ranged from a few days of intermittent confinement to 22 years in prison. The longest sentence was handed down to Enrique Tarrio, the former Proud Boys national chairman who was convicted of seditious conspiracy for what prosecutors described as a plot to stop the transfer of power from Trump, a Republican, to Joe Biden, a Democrat….
Defense attorneys and prosecutors are closely watching a case that will soon be heard by the U.S. Supreme Court that could impact hundreds of Jan. 6 defendants. The justices agreed last month to hear one rioter’s challenge to prosecutors’ use of the charge of obstruction of an official proceeding, which refers to the disruption of Congress’ certification of Biden’s 2020 presidential election victory over Trump.
More than 300 Jan. 6 defendants have been charged with the obstruction offense, and so has Trump in the federal case brought by special counsel Jack Smith. Lawyers representing rioters have argued the charge was inappropriately brought against Jan. 6 defendants.
The justices will hear arguments in March or April, with a decision expected by early summer. But their review of the obstruction charge is already having some impact on the Jan. 6 prosecutions. At least two defendants have convinced judges to delay their sentencings until after the Supreme Court rules on the matter.
On the pipe bombs:
One of the biggest remaining mysteries surrounding the riot is the identity of the person who placed two pipe bombs outside the offices of the Republican and Democratic national committees the day before the Capitol attack. Last year, authorities increased the reward to up to $500,000 for information leading to the person’s arrest. It remains unclear whether there was a connection between the pipe bombs and the riot.
Giant Cat with a Wireless Tail, by 3d1viner
One of the biggest remaining mysteries surrounding the riot is the identity of the person who placed two pipe bombs outside the offices of the Republican and Democratic national committees the day before the Capitol attack. Last year, authorities increased the reward to up to $500,000 for information leading to the person’s arrest. It remains unclear whether there was a connection between the pipe bombs and the riot….
The explosive devices were placed outside the two buildings between 7:30 p.m. and 8:30 p.m. on Jan. 5, 2021, but officers didn’t find them until the next day. Authorities were called to the Republican National Committee’s office around 12:45 p.m. on Jan. 6. Shortly after, a call came in for a similar explosive device found at the Democratic National Committee headquarters. The bombs were rendered safe, and no one was hurt.
Video released by the FBI shows a person in a gray hooded sweatshirt, a face mask and gloves appearing to place one of the explosives under a bench outside the DNC and separately shows the person walking in an alley near the RNC before the bomb was placed there. The person wore black and light gray Nike Air Max Speed Turf sneakers with a yellow logo.
In other news, the Supreme Court has agreed to decide whether Trump can be kept off the Colorado primary ballot. Their decision will obviously affect the other similar cases in multiple states. This week, efforts to disqualify Trump based on the 14th Amendment were initiated in Illinois and Massachusetts.
Adam Liptak at The New York Times: Supreme Court to Decide Whether Trump Is Eligible for Colorado Ballot.
The Supreme Court agreed on Friday to decide whether former President Donald J. Trump is eligible for Colorado’s Republican primary ballot, thrusting the justices into a pivotal role that could alter the course of this year’s presidential election.
The sweep of the court’s ruling is likely to be broad. It will probably resolve not only whether Mr. Trump may appear on the Colorado primary ballot after the state’s top court declared that he had engaged in insurrection in his efforts to subvert the 2020 election, but it will most likely also determine his eligibility to run in the general election and to hold office at all.
Not since Bush v. Gore, the 2000 decision that handed the presidency to George W. Bush, has the Supreme Court taken such a central role in an election for the nation’s highest office.
The case will be argued on Feb. 8, and the court will probably decide it quickly. The Colorado Republican Party had urged the justices to rule by March 5, when many states, including Colorado, hold primaries.
The number of challenges to Mr. Trump’s eligibility across the country can only have added pressure on the court to hear the Colorado case, as they underscored the need for a nationwide resolution of the question.
The case is one of several involving or affecting Mr. Trump on the court’s docket or on the horizon. An appeals court will hear arguments on Tuesday on whether he has absolute immunity from prosecution, and the losing side is all but certain to appeal. And the court has already said that it will rule on the scope of a central charge in the federal election-interference case in a decision expected by June.
Mr. Trump asked the Supreme Court to intervene after Colorado’s top court disqualified him from the ballot last month. That decision is on hold while the justices consider the matter.
Cathedral of St. Paul, by JReischl on Deviant Art
The Supreme Court also agreed to hear an abortion case yesterday, and, since it *only* involves women’s lives and safety, it was overshadowed by the Trump eligibility case. But this one is horrific.
Ann E. Marimow at The Washington Post: Supreme Court to decide if U.S. law requires some emergency room abortions.
The Supreme Court said Friday it will review a case challenging Idaho’s strict abortion ban, which the Biden administration says conflicts with a federal law requiring emergency room doctors to perform the procedure in some circumstances.
Idaho’s attorney general asked the justices to intervene after a lower-court judge blocked a section of Idaho’s abortion statute targeting doctors. The judge said the provision violates a federal law that requires hospitals receiving Medicare funding to guarantee emergency care. In its brief order Friday, the justices allowed the Idaho law to take full effect for now and said they would review the matter on an expedited basis in April.
The Biden administration turned to the Medicare law as a narrow way to challenge state-level abortion bans in federal court after the Supreme Court’s conservative majority overturned the fundamental right to an abortion established decades earlier in Roe v. Wade. The effort was seen as one of the few paths the administration could pursue to preserve access to abortion, which remains a galvanizing and divisive issue across the country in the lead-up to the 2024 presidential election.
The issue of access to abortion in health emergencies is not the only reproductive-rights case to reach the high court this term. The justices also will decide whether to limit access to the widely used abortion medication mifepristone, first approved by the Food and Drug Administration more than 20 years ago.
Idaho was one of several states to pass a “trigger” law before the 2022 decision in Dobbs v. Jackson Women’s Health, with the expectation that it would automatically take effect if the high court overturned Roe. The Idaho law, passed in 2020, bans most abortions and imposes penalties of up to five years in prison on doctors who perform the procedure, with an exception when “necessary to prevent the death of a pregnant woman.”
Abortion rights advocates and medical experts say the Idaho law, and similar bans in more than two dozen other states, have put doctors and hospitals at legal risk as they navigate life-or-death decisions for pregnant patients and seek to interpret vague medical exceptions to decide whether it is permissible in some circumstances to terminate a pregnancy.
In a similar case in Texas, the conservative U.S. Court of Appeals for the 5th Circuit this week ruled against the Biden administration, saying Texas hospitals and doctors are not obligated to perform abortions under the federal emergency-care law.
From the AP: The Supreme Court is allowing Idaho to enforce its strict abortion ban, even in medical emergencies.
The Supreme Court on Friday allowed Idaho to enforce its strict abortion ban, even in medical emergencies, while a legal fight continues.
The justices said they would hear arguments in April and put on hold a lower court ruling that had blocked the Idaho law in hospital emergencies, based on a lawsuit filed by the Biden administration.
The Idaho case gives the court its second major abortion dispute since the justices in 2022 overturned Roe v. Wade and allowed states to severely restrict or ban abortion. The court also in the coming months is hearing a challenge to the Food and Drug Administration’s rules for obtaining mifepristone, one of two medications used in the most common method of abortion in the United States.
In the case over hospital emergencies, the Biden administration has argued that hospitals that receive Medicare funds are required by federal law to provide emergency care, potentially including abortion, no matter if there’s a state law banning abortion.
U.S. District Judge B. Lynn Winmill in Idaho agreed with the administration. But in a separate case in Texas, a judge sided with the state.
Idaho makes it a crime with a prison term of up to five years for anyone who performs or assists in an abortion.
One more from the White House website: Statement from President Joe Biden on Supreme Court Order on Idaho’s Abortion Ban.
Today’s Supreme Court order allows Idaho’s extreme abortion ban to go back into effect and denies women critical emergency abortion care required by federal law. The overturning of Roe v. Wade has enabled Republican elected officials to pursue dangerous abortion bans like this one that continue to jeopardize women’s health, force them to travel out of state for care, and make it harder for doctors to provide care, including in an emergency. These bans are also forcing doctors to leave Idaho and other states because of laws that interfere with their ability to care for their patients. This should never happen in America.
The Vice President and I believe that health care decisions should be made by women and their doctors, not politicians. We will continue to defend a woman’s ability to access emergency care under federal law. As this case continues, the stakes could not be higher for women across America. Congress must immediately restore the protections of Roe v. Wade so that women in every state can access the health care they need.
That’s it for me today. What else is happening?
Benson B. Moore, born Washington, DC 1882-died Stuart, FL 1974
We’ve nearly reached the end of 2023. We’re also at the end of the typically slow news time known as “the holidays.” Therefore, there isn’t a lot of breaking news for me to post about. But here are a few interesting stories that are worth reading, along with some cat art from the Smithsonian “artful cats” collection.
Alex Shephard at The New Republic: Elon Musk Is The New Republic’s 2023 Scoundrel of the Year.
In one sense, Elon Musk has gotten exactly what he wanted. For all his talk about free speech, his primary motivation for sinking $44 billion into buying Twitter last year was clearly an unquenchable desire to be the center of attention. After Donald Trump’s defenestration in the wake of the January 6 insurrection, there was a main-character-size hole on the social network: Enter Musk and his infantile need for validation.
That Twitter—now renamed X, for reasons only Musk really understands—is now teetering on the brink of collapse and worth less than half what the world’s second-richest man paid for it is funny. It elicits deserved schadenfreude. Musk entered Twitter’s office carrying a sink—a terrible joke, and one of his better ones—last fall and has subsequently made countless decisions, big and small, all of which have made the platform significantly less viable and less worth spending any amount of time on. It is hard to think of a billionaire who has done more to damage their own reputation in such a short period of time.
Not so long ago, Musk was seen by many as a good tech billionaire, if not the good tech billionaire. While others like Meta’s Mark Zuckerberg built digital trinkets that actively made the world a worse place, Musk was something different: a visionary intent on building real things, whether they be electric cars or rockets, that were aimed at accelerating a Jetsons-like vision of the future. While rivals at Google and Facebook—and, for that matter, Twitter—were hauled before Congress to testify about the deleterious effects of their creations, Musk remained relatively unscathed. Now it is clear that he is not just more villainous than all of them but that he is also a deeply stupid and unserious person.
Elon Musk is evil. While he has mostly made headlines for his incompetence, he has unleashed and legitimized truly heinous forces on Twitter: He has welcomed back some of the world’s most toxic people—Alex Jones, Donald Trump, innumerable Nazis and bigots—and has gone out of his way, again and again, to validate them. That Musk would endorse a heinous antisemitic conspiracy theory, as he did last month, is both unsurprising and reprehensible. It is, more than anything else, a reflection of who he is: He may be fantastically wealthy, but he is also deeply hateful, someone who has decided to devote his fortune and his time to attacking diversity and progress on nearly every front.
Musk has insisted again that he bought Twitter to save it from itself—that the platform had become too restrictive and that, to become a true “digital town square” where the best ideas rise to the top, it needed to welcome everyone. It is now abundantly clear that Musk’s real intention is and always has been to put his thumb on the scale: to elevate his own hateful views about, in no particular order: liberals; the media; diversity, equity, and inclusion programs; trans people; and liberal Jews. He sees Twitter as a weapon, a way to not only push his agenda but to sic his army of loyalist losers on anyone he deems an enemy.
For all of the talk about Musk being a “real life Tony Stark,” he has always been a deeply uncool person’s idea of a cool person: He is, in many ways, a sentient m’lady Reddit post circa 2011. It’s hard to think of a more pathetic figure now: someone scraping the internet for conspiracy theories and “jokes” aimed at affirming his status and influence. He has, again and again, done the opposite: Far from showing himself as a swaggering, popular figure, he has revealed himself to be a venal, thin-skinned moron. He may very well be the most unfunny person alive, a fact reified dozens of times a day.
Wow! Read the rest at The New Republic. I wonder if Musk is too stupid to read TNR. If he does read this, he’ll probably sue Alex Shephard
At HuffPost, SV Date assesses the DeSantis campaign: DeSantis’ 2023: More Than $160 Million Spent To Buy A Collapse In The Polls.
A year after Ron DeSantis led Donald Trump in some 2024 presidential primary polls, and with just weeks to go before the first ballots are cast, the Florida governor is already explaining how Democrats conspired to stop him: by repeatedly charging the coup-attempting former president with breaking the law.
DeSantis’ campaign and super PAC have spent more than $160 million to boost him, and he spent the better part of 2023 on the road. But, he now says, it may not have been enough to overcome the advantage he believes Trump received from getting indicted four times.
Jacques Hnizdovsky, born Pylypcze, Ukraine 1915-died New York City 1985
“If I could have one thing change, I wish Trump hadn’t been indicted on any of this stuff,” he told the Christian Broadcasting Network last week. “It sucked out a lot of oxygen.” [….]
“The race was decided totally out of their control,” said one DeSantis donor and supporter who spoke on condition of anonymity. “Trump got indicted. And indicted and indicted and indicted. The race was over after the first indictment.”
Other Republicans are less charitable as they describe DeSantis’ steady decline over the year ― which began with GOP donors giving him unsolicited six- and seven-figure checks, saw him spend far more time and energy attacking the Walt Disney Co. and the nation’s top doctor during the COVID pandemic than he ever did taking on the front-runner in his race, and ended with DeSantis some 40 points behind Trump in national polls.
“He started the primary on third base and stole second,” said David Jolly, who served with DeSantis as a fellow Republican member of Congress from Florida. “We’ve now witnessed one of the most expensive and embarrassing collapses in Republican history.”
Fergus Cullen, a former New Hampshire Republican Party chair, wondered about DeSantis’ apparent strategy of trying to win over the roughly one-third of primary voters who are “only Trump,” rather than the two-thirds who are open to someone else….
The Florida governor’s various missteps over the year ― as well as those of his campaign and his supporting super political action committee ― have been well documented, from the time he called Russia’s invasion of Ukraine a “territorial dispute” to the mass campaign layoffs just two months after he officially began his run to the recent dysfunction at the super PAC, Never Back Down.
There’s more at the link.
Historian Heather Cox Richardson weighed in on Niki Haley’s Civil War gaffe at her substack, Letters from an American:
When asked at a town hall on Wednesday to identify the cause of the United States Civil War, presidential candidate and former governor of South Carolina Nikki Haley answered that the cause “was basically how government was going to run, the freedoms, and what people could and couldn’t do…. I think it always comes down to the role of government and what the rights of the people are…. And I will always stand by the fact that, I think, government was intended to secure the rights and freedoms of the people.”
Haley has correctly been lambasted for her rewriting of history. The vice president of the Confederacy, Alexander Stephens of Georgia, was quite clear about the cause of the Civil War. Stephens explicitly rejected the idea embraced by U.S. politicians from the revolutionary period onward that human enslavement was “wrong in principle, socially, morally, and politically.” Instead, he declared: “Our new government is founded upon…the great truth, that the negro is not equal to the white man; that slavery—subordination to the superior race—is his natural and normal condition.” [….]
Haley has been backpedaling ever since—as well as suggesting that the question was somehow a “gotcha” question from a Democrat, as if it was a difficult question to answer—but her answer was not simply bad history or an unwillingness to offend potential voters, as some have suggested. It was the death knell of the Republican Party.
Robert Smithson, American, b. Passaic, New Jersey, 1938–1973
That party formed in the 1850s to stand against what was known as the Slave Power, a small group of elite enslavers who had come to dominate first the Democratic Party and then, through it, the presidency, Supreme Court, and Senate. When northern Democrats in the House of Representatives caved to pressure to allow enslavement into western lands from which it had been prohibited since 1820, northerners of all political stripes recognized that it was only a question of time until elite enslavers took over the West, joined with lawmakers from southern slave states, overwhelmed the northern free states in the House of Representatives, and made enslavement national.
So in 1854, after Congress passed the Kansas-Nebraska Act that allowed the spread of enslavement into previously protected western lands, northerners abandoned their old parties and came together first as “anti-Nebraska” coalitions and then, by 1856, as the Republican Party.
At first their only goal was to stop the Slave Power, but in 1859, Illinois lawyer Abraham Lincoln articulated an ideology for the new party. In contrast to southern Democrats, who insisted that a successful society required leaders to dominate workers and that the government must limit itself to defending those leaders because its only domestic role was the protection of property, Lincoln envisioned a new kind of government, based on a new economy.
Lincoln saw a society that moved forward thanks not to rich people, but to the innovation of men just starting out. Such men produced more than they and their families could consume, and their accumulated capital would employ shoemakers and storekeepers. Those businessmen, in turn, would support a few industrialists, who would begin the cycle again by hiring other men just starting out. Rather than remaining small and simply protecting property, Lincoln and his fellow Republicans argued, the government should clear the way for those at the bottom of the economy, making sure they had access to resources, education, and the internal improvements that would enable them to reach markets.
When the leaders of the Confederacy seceded to start their own nation based in their own hierarchical society, the Republicans in charge of the United States government were free to put their theory into practice. For a nominal fee, they sold farmers land that the government in the past would have sold to speculators; created state colleges, railroads, national money, and income taxes; and promoted immigration.
Click the link to read more serious history.
The rest of the notable news this morning is Trump-related. Here’s what’s happening:
At her substack, Civil Discourse, Joyce Vance writes about latest on Trump lawyer Kenneth Chesebro, (which Dakinikat covered yesterday): What does the new reporting about Kenneth Chesebro mean?
CNN had a lengthy piece late Thursday on Kenneth Chesebro’s statement to prosecutors in Michigan (he is also talking to prosecutors elsewhere), that included his emails with others involved in the fake electors scheme and some audio of his statement to prosecutors. You will recall that Chesebro is a Harvard educated lawyer, who has been attributed with the role of architect of the fake electors scheme. Chesebro was charged in the Fulton County case, where he pled guilty, but with an asterisk. Chesebro continues to maintain that there was nothing illegal about the fake electors scheme. He pled guilty to one felony count of conspiracy to file false documents. He continues to maintain through his lawyer that the fake electors scheme was a legitimate strategy, put into play to protect Trump’s legal options. Chesebro’s attorney has said Trump has nothing to fear from his testimony.
So, Chesebro doesn’t look like a cooperator in the traditional sense. Cooperation means pleading guilty, making a full confession, and agreeing to testify against others. And that doesn’t seem to be what has happened here, making the deal Chesebro got in Fulton County, something of a mystery. Chesebro, at least on the surface, isn’t much of a witness for the government. It seems like he would testify there wasn’t an illegal conspiracy to interfere with the results of the election. In some cases, cooperating witness’ statements evolve overtime. Every prosecutor has put a cooperator on the stand who started out with lies, maintaining their innocence, but evolved progressively over time towards the truth—which then had to be corroborated with other evidence and a candid confession to the lies as well, as the crimes. But that doesn’t seem to be what’s happening here, either.
Cat with Lantern Woodblock print, by Kobayashi Kiyochika
Chesebro, and his “cooperation” remain something of an enigma, which makes this new report all the more interesting. Is Chesebro being more cooperative with prosecutors in Michigan? Has he finally had his come to Jesus moment? But much of the story is not new. The Washington Post, for instance, reported previously on his proffer in Georgia. But the CNN story is illuminating when we put it in context with everything else, and particularly with what we already know from the work of the January 6 committee.
Perhaps the most interesting new detail comes midway through the story, when we learn that prior to Chesebro’s guilty plea in Georgia, his lawyers reached out to Smith’s team. But they have still not received a response (or an invitation to proffer as have others, like Rudy Giuliani) from prosecutors. No reason is offered for this.
CNN obtained access to audio of some of Chesebro’s proffer with Michigan prosecutors, however. He has apparently been on the circuit, speaking with prosecutors in a number of different states where there are investigations in progress. The audio reveals a petulant, childish witness, upset about what he perceives as lies told about him by other Trump campaign lawyers and his financial problems. You can read the entire report from CNN here.
That’s a lot of questions. Read Vance’s take at her substack link above.
At Aaron Rupar’s substack Public Notice, Liz Dye writes about Jack Smith’s latest filing in the January 6 case: Jack Smith’s new motion could obliterate Trump’s DC strategy.
On Wednesday, Special Counsel Jack Smith asked the court to put the kibosh on Donald Trump’s efforts to “turn the courtroom into a forum in which he propagates irrelevant disinformation.” If Judge Tanya Chutkan grants this motion, it will eviscerate the former president’s plan to defend himself in DC by making the case about anything other than his own plot to obstruct the congressional certification of President Biden’s 2020 victory.
Broadly speaking, Trump wants to make the election interference trial into a glorified segment of Steve Bannon’s podcast. As he screams WITCH HUNT on social media, his lawyers accuse Biden of weaponizing the Justice Department and seek to introduce evidence of every crackpot election theory ever aired on Newsmax.
Unsurprisingly, the prosecution would like to avoid all that, so the special counsel has filed a motion to block Trump from bombarding the jurors with irrelevant and prejudicial evidence. And because Smith takes no prisoners, he’s done it in the most aggressive way possible….
Since before the indictment even dropped in August, Trump screamed daily that Biden is directing the Justice Department to persecute him. He also claimed that Biden is controlling the New York criminal and civil cases, as well as the RICO case in Georgia. He never presents any evidence of this because it’s patently ridiculous. The DOJ has no control over state prosecutions, and the entire purpose of the special counsel statute is to remove investigations which pose a conflict of interest from the immediate control of the DOJ….
Ted Gordon, born Louisville, KY 1924
[The Trump team’s] legal filings are scarcely more subtle. In October, Trump filed a motion to dismiss the case based on “selective and vindictive prosecution” — essentially a claim that the DOJ indicted him solely to kneecap Biden’s 2024 opponent.
The motion itself is a farcical hash of anonymously sourced articles from the supposedly fake news Washington Post and New York Times alleging that Biden confided to his inner circle that he wished AG Garland would be more aggressive. In fact, both stories confirm that Biden stayed far away from the Trump cases, even before Garland handed them off to Smith to avoid the appearance of conflict. Trump’s motion also mangles a quote from a press conference to suggest that “Biden’s publicly stated objective is to use the criminal justice system to incapacitate President Trump, his main political rival and the leading candidate in the upcoming election.” (That’s not remotely what he said.)
Even the most mundane scheduling brief is larded with assertions that “the incumbent administration has targeted its primary political opponent — and leading candidate in the upcoming presidential election — with criminal prosecution.”
In response, Smith argues:
“Through public statements, filings, and argument in hearings before the Court, the defense has attempted to inject into this case partisan political attacks and irrelevant and prejudicial issues that have no place in a jury trial,” Special Counsel Smith argued in a pretrial motion filed Wednesday. “Although the Court can recognize these efforts for what they are and disregard them, the jury — if subjected to them — may not.”
Prosecutors accuse Trump of attempting to engage in jury nullification, that is, securing an acquittal by convincing jurors to disregard the evidence and law in favor of their own personal feelings of justice. They argue that “the defendant should be precluded from raising irrelevant political issues” which might “improperly suggest to the jury that it should base its verdict on something other than the evidence at trial.”
Toward that end, they seek to exclude a broad swath of evidence which maps almost perfectly onto Trump’s motions to compel and to dismiss for selective prosecution.
There’s much more explanation and analysis at the Public Notice link.
Two legal minds weighed in on what the Supreme Court might do about states dropping Trump’s from their ballots.
Adam Liptak at the New York Times: How the Supreme Court May Rule on Trump’s Presidential Run.
The Supreme Court, battered by ethics scandals, a dip in public confidence and questions about its legitimacy, may soon have to confront a case as consequential and bruising as Bush v. Gore, the 2000 decision that handed the presidency to George W. Bush.
Until 10 days ago, the justices had settled into a relatively routine term. Then the Colorado Supreme Court declared that former President Donald J. Trump was ineligible to hold office because he had engaged in an insurrection. On Thursday, relying on that court’s reasoning, an election official in Maine followed suit.
An appeal of the Colorado ruling has already reached the justices, and they will probably feel compelled to weigh in. But they will act in the shadow of two competing political realities.
Jimmy Tsutomu Mirikitani, born Sacramento, CA 1920-died New York City 2012
They will be reluctant to wrest from voters the power to assess Mr. Trump’s conduct, particularly given the certain backlash that would bring. Yet they will also be wary of giving Mr. Trump the electoral boost of an unqualified victory in the nation’s highest court.
Chief Justice John G. Roberts Jr. will doubtless seek consensus or, at least, try to avoid a partisan split of the six Republican appointees against the three Democratic ones.
He may want to explore the many paths the court could take to keep Mr. Trump on state ballots without addressing whether he had engaged in insurrection or even assuming that he had.
Among them: The justices could rule that congressional action is needed before courts can intervene, that the constitutional provision at issue does not apply to the presidency or that Mr. Trump’s statements were protected by the First Amendment.
“I expect the court to take advantage of one of the many available routes to avoid holding that Trump is an insurrectionist who therefore can’t be president again,” said Nicholas Stephanopoulos, a law professor at Harvard.
Read the rest at The New York Times.
Shan Wu at The Daily Beast: Here’s What SCOTUS Should Do With the Trump Ballot Cases.
The U.S. Supreme Court needs to understand that the disqualification of former President Donald J. Trump under Section 3 of the 14th Amendment from running again for President of the United States is going exactly as it should. The Maine Secretary of State ruled in an administrative proceeding that Trump is disqualified, and the Colorado Supreme Court ruled similarly.
Both states followed the law set forth in the U.S. Constitution that anyone who once took an oath to support the Constitution but then “shall have engaged in insurrection or rebellion against the same, or given aid or comfort to enemies of the same” cannot again serve our country. But four other states (Florida, Michigan, Minnesota, California) came out the other way, while fourteen other states (Alaska, Arizona, Nevada, New Jersey, New Mexico, New York, Oregon, South Carolina, Texas, Vermont, Virginia, West Virginia, Wisconsin and Wyoming) still have disqualification cases pending. This sets up a potential crazy quilt map of states where Trump is on the ballot in some state but not in others. There is nothing wrong with this. It’s federalism at work.
Under the Constitution, the states have primary power over administering federal elections with Congress also possessing authority to regulate how the elections are run—voter registration being an example. So, the fact that who can run, who can vote and the “time place and manner” in which voting takes place varies from state to state is normal—and, arguably, the high court need not concern itself with these issues.
Woman and Cats, Will Barnet, born Beverly, MA 1911-died New York City 2012
Given this, SCOTUS does not have to take the ultimate appeal of any of these cases. Its discretion to take cases is complete, and letting the different cases stand would be an unreviewable decision on their part that would both keep them out of a repeat of their gross interference in the 2000 presidential election where the high court, not the people, made George W. Bush the 43rd President, and perhaps staunch the bleed out of their credibility. But the justices—liberal and conservative alike—are unlikely to be able to resist the glamour of taking on a case that can decide who will be president in 2024, and most legal experts believe they will take on the case.
If the justices do take on the cases, then they should limit what issues they decide to the ones that most clearly relate to Constitutional interpretation. Chief among those is the question of whether the president of the United States is an “officer” of the United States since some—including Trump—argue that the President is not an officer of the United States, and therefore the disqualification provision does not apply.
The justices should dispose of this question by holding that the President is an officer of the United States. To conclude otherwise begs the question of what is the president then? Trump would like the answer to be that the president is an emperor or a king rather than a mere officer serving the Constitution, and that’s what SCOTUS would be anointing him if it concludes that presidents do not hold office.
Read more analysis at The Daily Beast.
I hope everyone is having a nice, peaceful end-of-2023 weekend. All the best for the new year!
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