Monday Reads: The Wheels of Justice Turn very Slowly

Posted: August 13, 2018 | Author: | Filed under: Afternoon Reads | Tags: , , , , , , , | 22 Comments

Rediscovered painting by Raphael, circa 1520

Good Afternoon Sky Dancers!

I’m focusing on the last standing functional branch of our Democracy today. I’ve noticed that some of the court cases recently have shown us that a few of our institutions are still working despite attempts to take them down.  I also cover a bit of that because, as you know, “these are the times that try men’s souls”.

The Special Counsel’s Appointment and Authority has been upheld by one of the first Trump Court Appointee’s this morning. This is significant as Mueller’s team takes aim at Roger Stone who dallied with Guccifer 2.0 and may be one of the first of the campaign’s inner circle to be directly indicted for playing footsy with the Russians. This is via CNN:

A federal district judge who was appointed by President Donald Trump has upheld Robert Mueller’s appointment and constitutional authority in the special counsel’s case against Russian social media propagandists.

Judge Dabney Friedrich, who serves at the trial-court level in DC federal court, said Concord Management and Consulting could not have its case tossed on constitutional grounds. The Russian company accused of backing a social media effort to sway voters against Democratic presidential candidate Hillary Clinton claimed Mueller didn’t have power to bring the case because he was not appointment by the President and confirmed by Congress. Mueller was appointed under the authority of Deputy Attorney General Rod Rosenstein, who has broad power as the acting head of the Justice Department for the 2016 election probe.

“The appointment does not violate core separation-of-powers principles. Nor has the Special Counsel exceeded his authority under the appointment order by investigating and prosecuting Concord,” Friedrich wrote in an opinion published Monday morning. She was one of the first judges Trump placed into a federal court position.

Friedrich cited opinions by three other federal judges — Amy Berman Jackson, who oversees Paul Manafort’s criminal foreign lobbying case; T.S. Ellis, who oversees Manafort’s financial fraud case; and DC District Court Chief Judge Beryl Howell — to back up her decision.
All three judges also denied requests to invalidate Mueller’s authority, with Howell writing as recently as late July that a witness subpoenaed to turn over documents and to testify before the grand jury about Roger Stone would have to. That witness, Andrew Miller, has been held in contempt of the court and now may appeal.

 

Bronze statue of Astraea

Both Manafort and Stone and key associates have tried to dart and dodge aspects of their indictments.  So far, they’ve failed.

The prosecution is wrapping up its tax- and bank-fraud case against Manafort, Trump’s former campaign chairman.

After the blistering pace set by U.S. District Judge T.S. Ellis III, the trial ground to a sudden halt on Friday for an unexplained reason. The judge and lawyers spent half the day huddled behind closed doors, with the trial not resuming until mid-afternoon.

The star of the trial was Gates, who was depicted by the defense as an unprincipled crook who ripped off Manafort and maybe the Trump campaign, and cheated on his wife to boot. But he also described to prosecutors how he helped Manafort hide millions of dollars that he earned from political consulting work in Ukraine in offshore accounts, and helped forge documents that made it easier for Manafort to defraud banks.

The jury heard from plenty of financial experts who backed up those claims. The professionals who helped Manafort, including his bookkeeper and tax accountant, said Manafort was the one in charge and insisted on giving final approval. The accountant said she was aware that Manafort’s tax returns contained false information. Bankers testified they wouldn’t have approved Manafort’s loan requests had they received the correct information from him about his income and debts.

Stephen Calk, chief executive officer of Federal Savings Bank in Chicago, expedited approval of two loans for Manafort totaling $16 million as he pushed Manafort for help landing a job with the Trump administration soon after the 2016 election, a former bank employee testified.

Manafort’s defense gets a chance to put its case before the jury this week, although it’s not required to do so. It’s unclear whether Manafort plans to testify or when jurors will begin deliberating.

Lady Justice Streets of Dublin.  Jenny Rainbow (artist)

However, the White House continues to skirt laws and ethics guidelines.  This one is a whopper of an issue.  The Daily Beast has this lede: ‘White House: It’s in ‘Public Interest’ for Staff to Skirt Ethics Rules to Meet With Fox News’ written by Lachlan Markay. No wonder they want to change the way administrative judges are appointed.

It is “in the public interest” for a the White House’s top communicator to be excused from federal ethics laws so he can meet with Fox News, according to President Donald Trump’s top lawyer.

Bill Shine, Trump’s newly minted communications director, and Larry Kudlow, the White House’s top economist, who worked at CNBC before his White House post, have both been excused from provisions of the law, which seeks to prevent administration officials from advancing the financial interests of relatives or former employers.

“The Administration has an interest in you interacting with Covered Organizations such as Fox News,” wrote White House counsel Don McGahn in a July 13 memo granting an ethics waivers to Shine, a former Fox executive. “[T]he need for your services outweighs the concern that a reasonable person may question the integrity of the White House Office’s programs and operations.”

Kudlow, a former CNBC host, received a similar waiver allowing him to communicate with former colleagues.

Including Shine and Kudlow, the White House has granted a total of 20 waivers to provisions of various federal ethics laws and the ethics pledge that President Trump instituted by executive order the week he took office. Federal agencies have granted many more such waivers.

Very Old White Guy from Iowa Grassley has decided September 4th is the day to trot out the Kavanaugh confirmation.

Supreme Court nominee Brett Kavanaugh’s Senate confirmation hearings will start on Sept. 4 and last between three and four days, Judiciary Chairman Chuck Grassley (R-Iowa) announced on Friday.

That scheduling tees up the GOP to meet its goal of getting President Donald Trump’s pick seated on the high court by the time its term begins in early October, barring unforeseen obstacles or a breakthrough by Democrats who are pushing to derail Kavanaugh’s confirmation.

The Supreme Court battle so far has focused on documents related to Kavanaugh’s five years in the George W. Bush White House. Democrats have excoriated the GOP for declining to seek records from the nominee’s time as Bush’s staff secretary and condemned the Republican decision to rely on a Bush-driven review process for the early round of vetting, while the majority party hails the vast scope of documents that are set for release.

Grassley said earlier this month that he anticipates being able to complete Kavanaugh’s consideration by the Judiciary panel within about two weeks after the close of the confirmation hearings, which will feature questioning of the nominee beginning on Sept. 5. After the Judiciary panel clears Kavanaugh, Grassley added, the nomination is expected to reach the Senate floor within days.

“At this current pace, we have plenty of time to review the rest of emails and other records that we will receive from President Bush and the National Archives,” Grassley said in a Friday statement setting the hearing dates. “It’s time for the American people to hear directly from Judge Kavanaugh at his public hearing.”

The FBI has overridden its normal process of employee discipline to fire Agent Peter Strzok who basically was exercising his first amendment rights to criticize D’oh Hair Furor.  I’m wondering how long it will take to fire up a law suit on this one. This is from Matt Zapotosky at WAPO.

The FBI has fired agent Peter Strzok, who helped lead the bureau’s investigation into Russian interference in the 2016 election until officials discovered he had been sending anti-Trump texts.

Aitan Goelman, Strzok’s lawyer, said FBI Deputy Director David L. Bowdich ordered the firing on Friday — even though the director of the FBI office that normally handles employee discipline had decided Strzok should face only a demotion and 60-day suspension. Goelman said the move undercuts the FBI’s repeated assurances that Strzok would be afforded the normal disciplinary process.

“This isn’t the normal process in any way more than name,” Goelman said, adding in a statement, “This decision should be deeply troubling to all Americans.”

The FBI declined to comment.

The termination marks a remarkable downfall for Strzok, a 22-year veteran of the bureau who investigated Russian spies, defense officials accused of selling secrets to China and myriad other important cases. In the twilight of his career, Strzok was integral to two of the bureau’s most high-profile investigations: the Russia case; and the investigation into Hillary Clinton’s use of a private email server while she was secretary of state.

Meanwhile, Cruella D’Vos “Just Pulled a Full Marie Antoinette And Retracted Fraud Rules Against For-Profit Colleges.” This is from Elura Nanos writing for Law & Crime.

Welp, now we’ve at least closed the circle on Betsy DeVos and for-profit colleges. She’s gone from evading questions about whether she would regulate these fraud machines to disbanding the team charged with investigating them. Now, she flat out withdrew the gainful employment rule, signaling to all that under her watchful eye, the DeVrys, the Trump Universities, and the Corinthian Colleges are free to flourish – while unwitting students and their families can simply eat cake.

The “gainful employment rule,” you may remember, is the one adopted in 2016 under the Obamaadministration, after several cash-cow diploma mills found themselves defending fraud lawsuits brought by swindled students. The rule prohibited these businesses from using deceptive practices to entice customers to plunk down thousands in student loan money when the corresponding “degree” wasn’t worth the expensive paper on which it was printed. Or in other words, exactly what Trump University was accused of doing. It was also the rule Senator Elizabeth Warren skeweredDeVos on at DeVos’ confirmation hearing.

Well, as they say “No justice, No Peace”.

This is pretty outrageous.

The Clearwater man who shot and killed a father of three outside a convenience store in a parking dispute last month — setting off a stand your ground debate that has swept Florida and the nation — has a history of road rage.

Since 2012, according to records and interviews, 47-year-old Michael Drejka has been the accused aggressor in four incidents. Investigators documented three cases in police reports.

The other was not shared with authorities at the time but involved the same handicap-reserved parking spot outside the Circle A Food Store near Clearwater and another shooting threat.

Two involved allegations of Drejka showing a gun. In another, a trooper accused him of aggressive driving and cited him after a crash when Drejka braked hard in front of a woman driving with two children.

Drejka has not spoken publicly in the weeks since he shot and killed 28-year-old Markeis McGlockton. No one has spoken much about him, either. Not family. Not neighbors. Not lawyers. Several alleged victims in previous incidents either declined to comment or could not be reached. Drejka remains, in many ways, an enigma to the public. He has not been arrested.

The shooter was white and the victim was black.  Just an hour ago, however, we got this lede from the Tampy Bay Times: “Shooter charged with manslaughter in Clearwater stand your ground case”.

Prosecutors charged Michael Drejka, the man accused of killing Markeis McGlockton in a shooting that has reignited a debate around Florida’s stand your ground law, with manslaughter Monday.

According to the Pinellas County Sheriff’s Office, Drejka was taken into custody Monday morning. He is being booked into the Pinellas County Jail, where he will be held in lieu of $100,000 bail.

Drejka, 47, has avoided arrest since he shot 28-year-old McGlockton on July 19 because of the controversial self-defense law that eliminated one’s duty to retreat before resorting to force.

Pinellas Sheriff Bob Gualtieri announced July 20 that his agency was precluded from arresting Drejka because evidence showed it was “within the bookends of stand your ground and within the bookends of force being justified,” which provides immunity from arrest, the sheriff said. He forwarded the case Aug. 1 to the Pinellas-Pasco State Attorney’s Office to make a final charging determination.

Lady Justice by Cartoonist Gunduz Agayev

So, I have ignored Omarossa today but I will pass this bit of sad news on about our country’s Queen of Soul, Aretha Franklin.

Music legend Aretha Franklin is “gravely ill,” her family told WDIV-TV (Channel 4) on Monday.

Channel 4 anchor Evrod Cassimy said this morning in a tweet: “I spoke with her family members this morning. She is asking for your prayers at this time.”

She is said to be dying at this time so we’re losing a great voice and person again.

So that’s a little this and that on what may be our last functional branch of government.  Pray it stands its ground.

What’s on your reading and blogging list today?

Tuesday Reads: Trump Nominates Brett Kavanaugh for SCOTUS

Posted: July 10, 2018 | Author: | Filed under: Civil Liberties, Civil Rights, court rulings, Criminal Justice System, morning reads, SCOTUS, U.S. Politics, Women's Rights | Tags: , , , , , , | 44 Comments

The Four Justices, Nelson Shanks, National Portrait Gallery, Smithsonian Institution

Good Morning!!

Last night thug “president” Trump did his ridiculous PT Barnum act with his nomination of Brett Kavanaugh to the Supreme Court to replace Anthony Kennedy. Supposedly, Trump was deciding among about four candidates, but it turns out the fix may have been in all along.

https://twitter.com/GeoffRBennett/status/1016642192616706050

Has any other president made a deal with a Supreme Court Justice to appoint a chosen replacement?

https://twitter.com/Susan_Hennessey/status/1016649427577196544

From Politico: How a private meeting with Kennedy helped Trump get to ‘yes’ on Kavanaugh.

After Justice Anthony Kennedy told President Donald Trump he would relinquish his seat on the Supreme Court, the president emerged from his private meeting with the retiring jurist focused on one candidate to name as his successor: Judge Brett Kavanaugh, Kennedy’s former law clerk….

So even as Trump dispatched his top lawyers to comb though Kavanaugh’s rulings and quizzed allies about whether he was too close to the Bush family, potentially a fatal flaw, the president was always leaning toward accepting Kennedy’s partiality for Kavanaugh while preserving the secret until his formal announcement, sources with knowledge of his thinking told POLITICO.

I’m sure we’ll be learning more about this, and I hope Democrats respond aggressively.

Basic background on Kavenaugh

NBC News: Who is Supreme Court nominee Brett Kavanaugh?

President Donald Trump’s Supreme Court pick is no stranger to partisan politics: Before becoming a judge, he was helping make the case for the impeachment of Bill Clinton and later for the election of George W. Bush.

U.S. Court of Appeals for the D.C. Circuit judge Brett Kavanaugh

Twenty years ago, Kavanaugh’s story starts amid the highly politicized independent counsel investigation into Clinton. He worked for Starr as a young Yale Law graduate, first when Kenneth Starr was solicitor general and later in the Office of the Independent Counsel, where Kavanaugh was a key player in the slew of investigations into the Clintons, including the Whitewater scandal, the suicide of White House counsel Vincent Foster and Clinton’s affair with Monica Lewinsky.

The Starr Report to Congress laid out the details of Clinton and Lewinsky’s affair and findings of potential wrongdoing by the president. Kavanaugh was the primary author of the section on the grounds for possible impeachment, Starr would reportedly later say,because “that needed to be very carefully crafted, so I was looking to one of the office’s most talented lawyers — of superb and balanced judgment — to take the lead in drafting.” [….]

He was a member of the GOP legal team fighting to stop the recount in Florida to clear the way for Bush’s election against Al Gore in 2000, later taking a job in the Bush White House in 2001, where he’d serve for five years as counsel and later staff secretary until his confirmation to the U.S. Court of Appeals for the D.C. Circuit in 2006.

The Washington Post: Brett Kavanaugh, Trump’s Supreme Court pick, has sided with broad views of presidential powers.

Brett M. Kavanaugh, the federal judge nominated by President Trump on Monday to the Supreme Court, has endorsed robust views of the powers of the president, consistently siding with arguments in favor of broad executive authority during his 12 years on the bench in Washington.

Justice Anthony Kennedy

He has called for restructuring the government’s consumer watchdog agency so the president could remove the director and has been a leading defender of the government’s position when it comes to using military commissions to prosecute terrorism suspects.

Kavanaugh is “an unrelenting, unapologetic defender of presidential power” who believes courts can and should actively seek to rein in “large swaths of the current administrative state,” said University of Texas law professor Stephen Vladeck, who closely follows the U.S. Court of Appeals for the District of Columbia Circuit.

Kavanaugh’s record suggests that if he is confirmed, he would be more to the right than the man he would replace, Justice Anthony M. Kennedy, for whom he clerked. Kavanaugh has staked out conservative positions in cases involving gun rights, abortion and the separation of powers.

Read more details at both of those links.

What Kavanaugh Would Likely Do on the Court

Slate: How Brett Kavanaugh Will Gut Roe v. Wade

Kavanaugh is an obvious choice for Trump. A judge on the U.S. Court of Appeals for the District of Columbia Circuit, he has maintained staunchly conservative credentials without earning a reputation for being a bomb-thrower. Unless Republican Sen. Susan Collins grows a spine, which she won’t, he has a clear path to Senate confirmation. During his hearings, Kavanaugh will claim he cannot reveal his true feelings about Roe v. Wade, the 1973 Supreme Court decision establishing a constitutional right to abortion access. But there is little doubt that Kavanaugh will gut Roe at the first opportunity. Indeed, he has already provided a road map that shows precisely how he’ll do it.

Justice Ruth Bader Ginsburg

Kavanaugh was forced to confront the abortion question in 2017 after the Trump administration barred an undocumented minor, known as Jane Doe, from terminating an unwanted pregnancy. The American Civil Liberties Union sued on Doe’s behalf, and the dispute came before a three-judge panel at the D.C. Circuit. Kavanaugh was joined on the panel by Judge Karen L. Henderson, an arch-conservative, and Judge Patricia Millett, a moderate liberal. Doe, who was being held in a federally funded Texas shelter, had already obtained the necessary judicial bypass to get an abortion. But the Trump administration refused to let her see an abortion provider, instead sending her to an anti-abortion “crisis pregnancy center.”

By that point, Doe would be about 18 weeks pregnant. Texas bans abortion after 20 weeks, and the procedure becomes more dangerous as the pregnancy advances. Moreover, the process of finding and verifying a sponsor for an undocumented minor frequently takes weeks or months. And Doe’s lawyers had already searched for a possible sponsor, to no avail. Kavanaugh’s ostensible compromise, then, was nothing of the sort. At best, it would force Doe to suffer through her unwanted pregnancy for at least two more weeks, increasing the odds of complications when she was finally able to obtain an abortion. At worst, it meant the government could run down the clock to the point that an abortion would become illegal.

Luckily for Doe, the full D.C. Circuit swiftly reversed Kavanaugh’s decision and allowed her to terminate her pregnancy, which she did. This move prompted Kavanaugh to write a bitter dissent explaining why the government’s bar on Doe’s abortion was not, in fact, an undue burden.

Read the rest at Slate.

The Daily Beast: Brett Kavanaugh, Trump’s Supreme Court Pick, Is Probably the End of Abortion Rights and Same-Sex Marriage.

When President Trump Monday nominated Judge Brett Kavanaugh to the Supreme Court, he probably doomed the right to abortion, same-sex marriage, and maybe even contraception….

Future justice Elena Kagan arging a campaign finance reform case before SCOTUS

…while Kavanaugh’s record on women’s and LGBT rights is sparse, it gives good reason to suspect that he could be the swing vote to strike down Roe v. Wade, the abortion-rights case. This, after all, is what Trump promised in 2016: that Roe would be “automatically” be overturned should he be elected. And Kavanaugh has been praised by numerous right-wing organizations.

In the case of Garza v. Hargan, the D.C. Circuit Court of Appeals held that an undocumented teenage immigrant was entitled to obtain an abortion without having to obtain familial consent (as is required in several states).

Kavanaugh vigorously dissented, asking, “Is it really absurd for the United States to think that the minor should be transferred to her immigration sponsor ― ordinarily a family member, relative, or friend ― before she makes that decision?”

Those are strong words, endorsing not only parental consent rules but enforcing them in extreme circumstances. If you are looking for signals that a Justice Kavanaugh would limit or overturn Roe, Garza is a giant red flare.

There’s also a possibility that Kavenaugh might not be right wing enough to satisfy some Republicans.

Kavanaugh may not be conservative enough to survive the confirmation process. There is even talk that conservatives might revolt against Kavanaugh, as they did in 2005 against George W. Bush’s nomination of Harriet Miers. The reason? Many conservatives wanted Kavanaugh to cast doubt on the teenager’s right to get an abortion at all, which another dissenting judge did.

Neal K. Katyal for respondents, Travel Ban case

Legally speaking, that objection is absurd. Not unlike “judicial minimalist” Chief Justice John Roberts, Kavanaugh was discussing the case at issue, not some hypothetical issue. And he was responding to the circuit court’s holding, not writing an essay.

But there’s more. Some conservatives have pointed to dicta in another Kavanaugh opinion, a dissent in Priests for Life v. HHS, a case similar to Hobby Lobby involving the Affordable Care Act’s contraception requirement. While dissenting in favor of the Catholic religious organization objecting to the requirement, Kavanaugh wrote that the “the Government has a compelling interest in facilitating women’s access to contraception” because of a variety of factors, such as “reducing the number of unintended pregnancies would further women’s health, advance women’s personal and professional opportunities, reduce the number of abortions, and help break a cycle of poverty.”

Kavanaugh is writing here about the state’s interest in access to contraception, not whether an individual has a constitutional right to access it. Those are totally different questions. But Kavanaugh’s opinion doesn’t question the constitutional right either, which rests on the same foundations (substantive due process, privacy, family) as the right to obtain an abortion.

This one is a must read–lots of details on Kavenaugh’s record. Head over to The Daily Beast to read the rest.

Read more about Kavenaugh and abortion here:

https://twitter.com/imillhiser/status/1016672606269952001

One more from The New York Times editorial board: There’s So Much You Don’t Know About Brett Kavanaugh. And you probably won’t until it’s too late.

First, the awful lot: Judge Kavanaugh would shift the balance of constitutional jurisprudence to the right, creating a solid right-wing majority on the court possibly until the second half of the 21st century. While the somewhat unpredictable Justice Anthony Kennedy once served as the fulcrum for the court, that role will now go to Chief Justice John Roberts Jr., a far more ideological conservative.

Judge Kavanaugh, who sits on the federal appeals court for the District of Columbia, has been a fixture in conservative politics and is widely respected by the Republican elite. Before becoming a judge, he clerked for Justice Kennedy and worked for Kenneth Starr, the independent counsel who investigated President Bill Clinton, and later in the George W. Bush White House. He successfully portrayed himself in his remarks at the White House as a nice guy who coaches girls in basketball, feeds the homeless and believes in the Constitution.

What Americans can’t know about Judge Kavanaugh: pretty much anything else. That’s thanks to the perversion of the Supreme Court confirmation process, which once provided the Senate and the public with useful information about a potential justice’s views on the Constitution, but which has, ever since the bitter battle over President Ronald Reagan’s failed nomination of Robert Bork in 1987, devolved into a second-rate Samuel Beckett play starring an earnest legal scholar who sits for days at a microphone and labors to sound thoughtful while saying almost nothing.

Read the rest at the NYT.

I know there’s plenty of other news, but this is the biggie for today. Post your thoughts and links on any topic in the comment thread, and try to have a good day despite the horrors all around us.

 

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