Frosty Morning, by Ottis Adams

From Talking Points Morning Memo by David Kurtz: Like It Or Not, The Roberts Court Is About To Be Confronted With The Trump Problem.

The decision by the Colorado Supreme Court to remove Donald Trump from the GOP primary ballot has cast us deeper into uncharted waters.

I had a vague notion even into adulthood that the constitutional order in America was challenged every 50 years or so in ways that stress-tested the system. By that measure, I regret to inform you that we live in extraordinary times.

Since 1998, some of the markers – by the numbers:

• 3 going on 4 presidential impeachments;
• 2 winning presidential candidates losing the popular vote;
• 1 going on 2 presidential elections decided by the Supreme Court;
• 1 attempted coup; and
• 4 criminal prosecutions of an ex-president.

While it’s not just Donald Trump, you can see his outsize impact on those numbers.

I’m not of the view that testing constitutional limits is somehow dangerous or ill-advised. We should thoroughly ventilate the 14th Amendment’s Disqualification Clause, as is being done now. It’s been a mistake, in my view, to spend decades circling around but never quite confronting the true extent of executive privilege. In the half century since Watergate, we shouldn’t have operated under the untested specter of a Justice Department opinion that sitting presidents can’t be criminally charged.

So I don’t think there’s anything inherently ill-advised about treating the Constitution as a robust mechanism to be used, tested, amended, and reinvigorated. Not every brush with a constitutional question is a constitutional crisis. (To clear up any possible confusion, I’m talking here about the constitutional structure itself, not the scope of individual rights protected by the Constitution, whose developments have their own history and evolution under the law.)

The next few months are going to see a series of new tests.

Read more, with suggestions for further reading at the TPM link.

More commentary from Rick Hasen at the Election Law Blog: Will the U.S. Supreme Court Keep Donald Trump Off the Ballot ? Some Initial Thoughts.

I am traveling and so I offer only some brief and initial thoughts here about what the United States Supreme Court may and should do in light of the Colorado Supreme Court’s determination that Donald Trump is ineligible to serve as president under Section 3 of the 14th amendment for encouraging insurrection.

By Anatoly Deverin

My bottom line is that the Colorado opinion is a serious and careful opinion that reaches a reasonable conclusion that Trump is disqualified. Nonetheless the opinion reaches many novel legal issues that the U.S. Supreme Court could decide the other way should that court reach the merits. (The three dissenters on the Colorado court did not really reach the merits.) Trump would need to prevail on only one of these legal issues to win on any appeal, so in some ways the legal odds are with him.

It is far from clear that the U.S. Supreme Court will reach the merits—there are many legal doctrines like ripeness and mootness that would give the Court a way to avoid deciding the issues in the case. But it is imperative for the political stability of the U.S. to get a definitive judicial resolution of these questions as soon as possible. Voters need to know if the candidate they are supporting for President is eligible. And if we don’t get a final judicial  resolution before January 6, 2025 a Democratic-majority Congress could decide Trump is disqualified even if he appears to win the electoral college vote. That would be tremendously destabilizing. 

In the end the legal issues are close but the political ramifications of disqualification would be enormous. Once again the Supreme Court is being thrust into the center of a U.S. presidential election. But unlike in 2000 the general political instability in the United States makes the situation now much more precarious.

The media has finally begun talking about Trump’s fascist tendencies and actually comparing him to Hitler. Calder McHugh writes at Politico Magazine: ‘Trump Knows What He’s Doing’: The Creator of Godwin’s Law Says the Hitler Comparison Is Apt.

Any time people start fighting on the internet, someone will inevitably reach for the Hitler comparison. It’s a virtually unbreakable rule known as “Godwin’s law,” named after Mike Godwin, an early internet enthusiast who coined it back in 1990. It’s also understood that often the party mentioning Hitler or the Nazis is losing the argument, though that’s not part of the law itself.

Godwin’s law was invoked this weekend when President Joe Biden’s campaign said former President Donald Trump had “parroted Adolf Hitler” when he accused undocumented immigrants of “poisoning the blood of our country.”

But according to Godwin himself, that doesn’t mean Biden is losing the argument.

Lights in the Murk, 2022, Jeremy Miranda (American, b.1980)

“Trump’s opening himself up to the Hitler comparison,” Godwin said in an interview. And in his view, Trump is actively seeking to evoke the parallel.

Trump made almost identical comments in an interview with the far-right website The National Pulse in November, around the same time Trump also called his political opponents “vermin” — all rhetoric that Hitler used to disparage Jews.

“You could say the ‘vermin’ remark or the ‘poisoning the blood’ remark, maybe one of them would be a coincidence,” Godwin said. “But both of them pretty much make it clear that there’s something thematic going on, and I can’t believe it’s accidental.”

Comparisons to Hitler and the Nazis happen all the time, particularly in online discourse, but they’re often dismissed as ridiculous or clumsy. When public figures or their staff mention the H-word, it can provoke derision. But the Biden campaign has made a deadly serious statement, and a political wager that the public won’t dismiss the charge as hyperbole.

Read an interview with Godwin at the Politico link.

At The New York Times, Michael Gold writes: Trump, Attacked for Echoing Hitler, Says He Never Read ‘Mein Kampf.’

Former President Donald J. Trump on Tuesday doubled down on his widely condemned comment that undocumented immigrants are “poisoning the blood of our country,” rebuffing criticism that the language echoed Adolf Hitler by insisting that he had never read the Nazi dictator’s autobiographical manifesto.

Mr. Trump did not repeat the exact phrase, which has drawn criticism since he first uttered it in an interview with a right-leaning website and then repeated it at a rally in New Hampshire on Saturday.

But he said on Tuesday night in a speech in Iowa that undocumented immigrants from Africa, Asia and South America were “destroying the blood of our country,” before alluding to his previous comments.

“That’s what they’re doing. They’re destroying our country,” Mr. Trump continued. “They don’t like it when I said that. And I never read ‘Mein Kampf.’ They said, ‘Oh, Hitler said that.’”

He added that Hitler said it “in a much different way,” without making his meaning clear.

Undocumented immigrants, he added, “could be healthy. They could be very unhealthy. They could bring in disease that’s going to catch on in our country.” And he again said that they were “destroying the blood of our country” and “destroying the fabric of our country.”

Mr. Trump and his campaign have dismissed the comparisons between his remark and language used by Hitler using the words “poison” and “blood” to denigrate those who Hitler deemed a threat to the purity of the Aryan race.

In one chapter of “Mein Kampf” named “Race and People,” Hitler wrote, “All the great civilizations of the past became decadent because the originally creative race died out, as a result of contamination of the blood.” In another passage, he links “the poison which has invaded the national body” to an “influx of foreign blood.”

I believe that Trump has never read “Mein Kampf,” because he doesn’t read anything; but I have no doubt that Steven Miller–who writes Trump’s speeches–has read it. Trump was reading these Hitler-like words from his teleprompter.

Winter in the forest, Isaac Levitan 1885

Speaking of media troubles, NPR’s David Folkenflik has a troubling scoop about the next boss of The Washington Post: New ‘Washington Post’ CEO accused of Murdoch tabloid hacking cover-up.

When Washington Post owner Jeff Bezos wanted an assured hand to right the newspaper’s shaky finances, he turned to Will Lewis, a 54-year-old former editor of The Daily Telegraph and former publisher of The Wall Street Journal, whom he called “exceptional, tenacious.” Lewis will start as the Post‘s publisher and CEO in early January.

A dozen years ago, media magnate Rupert Murdoch also turned to Lewis when he wanted to find someone to rectify the hacking and bribery scandals engulfing his British Sunday tabloid, News of the World.

Lewis’ publicly stated charge was to root out newsroom corruption, cooperate with police and help settle claims from people targeted by the company’s journalists for voicemail and email hacking. The Guardian called him “News Corp’s clean-up campaigner.”

A very different picture of Lewis emerges from material presented in London courtrooms in recent months and reviewed by NPR. The man picked to lead the Post — a paper with the slogan “Democracy Dies in Darkness” — stands accused of helping to lead a massive cover-up of criminal activity when he was acting outside public view.

In lawsuits against News Corp.’s British newspapers, lawyers for Prince Harry and movie star Hugh Grant depict Lewis as a leader of a frenzied conspiracy to kneecap public officials hostile to a multibillion-dollar business deal and to delete millions of potentially damning emails. In addition, they allege, Lewis sought to shield the CEO of News Corp.’s British arm, News UK, from scrutiny and to conceal the extent of wrongdoing at News of the World‘s more profitable sister tabloid, The Sun.

In sum, the Duke of Sussex and Grant argue that Lewis was a linchpin of efforts to limit the fallout during a key period between late 2010 and 2012.

These concerns about Lewis’ actions have been percolating for years.

Through a spokesperson, Lewis declined to comment to NPR for this story. He previously denied the broad outlines of these accusations, saying they are utterly unfounded. Lewis has not personally been sued as part of any of this current litigation, which offers greater specificity and sweep to the allegations.

Read all the details at the NPR link.

It’s all over for Ron DeSantis; even he must realize that by now. Jake Lahut writes at The Daily Beast: How Ron DeSantis’ $100 Million ‘Death Star’ Collapsed.

Long before Ron DeSantis’ presidential ambitions began to falter, it was clear to anyone paying close attention that there were fatal flaws in his much-hyped political operation.

“I had to have it explained to me the first time DeSantis came here for a parade,” an early DeSantis supporter in New Hampshire recalled to The Daily Beast. “I was gonna show up for the parade and I was informed, ‘This is a Never Back Down event, so you can’t mention anything about the campaign.’ And I was like, what the hell is this?”

This, the New Hampshire presidential campaign veteran would come to learn, was how the DeSantis campaign thought they’d cracked the code to beat former President Donald Trump.

Never Back Down was launched as a super PAC—loaded up with $80 million transferred from DeSantis’ state-level PAC in Florida—designed to carry him to the presidency through sheer force. The prospect of a talent-stocked PAC spending historic sums on organizing and campaign messaging was initially so fearsome that some Republicans dubbed Never Back Down the “Death Star.”

As the New Hampshire source’s befuddlement at the parade showed, however, Never Back Down’s ambitious vision was destined to collide with the strict federal rules barring campaigns and super PACs from cooperating on strategy or even communicating at all.

But few in Republican politics expected just how spectacularly this vaunted Death Star would ultimately implode.

“This will go down as maybe the worst-orchestrated effort in modern presidential history,” said a person familiar with Never Back Down’s operations.

Forest in Winter, Lawren S. Harris, Canadian, 1885-1970

After months spent out of sync with the campaign, a number of officials with Never Back Down have either resigned or been fired; top PAC strategists have cursed at each other and nearly come to blows in private meetings; and a new breakaway PAC has formed.

Most troubling of all, DeSantis might be sliding backward in his quest for the presidency despite the staggering sum of nearly $100 million that his PAC has spent to support him.

With DeSantis struggling to maintain even second place as the Iowa and New Hampshire contests near, the governor’s sympathizers are fully considering the consequences of his team’s big bet that they could outsource a huge primary victory to a super PAC.

“It is gonna cost us the election,” the DeSantis supporter, who later switched allegiance to a rival non-Trump campaign, recalled thinking to themselves several months ago, now describing the decision to outsource so many critical functions to Never Back Down as “a huge, huge mistake, and we could not afford one on this.”

“We’ll never win another election if we don’t stop PACs trying to become the campaign,” the former DeSantis supporter said.

Read more details at The Daily Beast.

Three more interesting stories, before I wrap this up:

ABC News: Federal judge orders documents naming Jeffrey Epstein’s associates to be unsealed.

A federal judge in New York has ordered a vast unsealing of court documents in early 2024 that will make public the names of scores of Jeffrey Epstein’s associates.

The documents are part of a settled civil lawsuit alleging Epstein’s one-time paramour Ghislaine Maxwell facilitated the sexual abuse of Virginia Giuffre. Terms of the 2017 settlement were not disclosed.

Maxwell is currently serving a 20-year prison sentence after she was convicted of sex trafficking and procuring girls for Epstein, who died by suicide in 2019 in a Manhattan jail while awaiting trial on federal sex trafficking charges.

Anyone who did not successfully fight to keep their name out of the civil case could see their name become public — including Epstein’s victims, co-conspirators and innocent associates.

Judge Loretta Preska set the release for Jan. 1, giving anyone who objects to their documents becoming public time to object. Her ruling, though, said that since some of the individuals have given media interviews their names should not stay private.

The documents may not make clear why a certain individual became associated with Giuffre’s lawsuit, but more than 150 people are expected to be identified in hundreds of files that may expose more about Epstein’s sex trafficking of women and girls in New York, New Mexico, the U.S. Virgin Islands and elsewhere. Some of the names may simply have been included in depositions, email or legal documents.

Some of the people have already been publicly associated with Epstein. For instance, Harvard law professor Alan Dershowitz is publicly named in the judge’s order. Certain minor victims will remain redacted.

The New York Times: Giuliani’s Money Woes Were a Focus of Ukraine Inquiry, Records Reveal.

Before Rudolph W. Giuliani was ordered to pay $148 million to two Georgia election workers he defamed, and before he owed his own lawyers several million dollars more, federal prosecutors were scrutinizing whether he pursued dubious business dealings in Ukraine to shore up his dwindling fortune, according to court records unsealed late Tuesday.

The documents lifted the veil on a criminal investigation that federal prosecutors spent three years conducting into the dealings of Mr. Giuliani, the former New York mayor who had reinvented himself as Donald J. Trump’s personal lawyer and attack dog.

Apple Grove Moon, Peter Skulthorpe

The investigation, which did not result in charges for Mr. Giuliani, centered on whether he illegally lobbied the Trump administration in 2019 on behalf of Ukrainian officials. Those same Ukrainians helped Mr. Giuliani dig for dirt on Joseph R. Biden Jr., who was then on his way to becoming the Democratic presidential nominee and who would ultimately defeat Mr. Trump in 2020.

The prosecutors had assembled enough evidence to persuade a judge in April 2021 to authorize the seizure of Mr. Giuliani’s phones and computers, an extraordinary step to take against any lawyer, let alone one who had represented a sitting president. And for a time, it appeared as if the prosecutors, working in the same Manhattan U.S. attorney’s office that Mr. Giuliani had presided over decades earlier, might seek to indict him.

But when they failed to find a smoking gun in Mr. Giuliani’s electronic records, the prosecutors notified the judge overseeing the matter that they had ended the long-running investigation.

A spokesman for Mr. Giuliani did not immediately respond to a request for comment late Tuesday.

The judge, J. Paul Oetken, recently ordered the prosecutors to release the search warrant materials in response to a request from The New York Times. Mr. Giuliani consented to the newspaper’s request, as did the government, with certain redactions to protect privacy interests.

While much of the evidence that underpinned the search warrant had already come to light in the media and through Mr. Trump’s first impeachment proceedings in late 2019,the search warrant materials represent the government’s most comprehensive catalog yet of Mr. Giuliani’s ties to Ukraine.

And for the first time, the records explicitly linked Mr. Giuliani’s recent financial troubles to his dealings in Ukraine, suggesting that he did not just want Ukrainian officials’ help in attacking Mr. Biden but also their money.

Spencer S. Hsu at The Washington Post: Judge again turns over Rep. Perry’s phone records to DOJ Jan. 6 probe.

A federal judge on Tuesday granted the Justice Department access to nearly 1,700 records recovered from the cellphone of Rep. Scott Perry (R-Pa.) in a long-running legal battle in the criminal investigation of former president Donald Trump’s efforts to overturn the 2020 presidential election.

Chief U.S. District Judge James E. Boasberg of D.C. gave investigators access to 1,659 records and withheld 396 others after a federal appeals court directed him to individually review 2,055 communications from Perry’s phone to decide which were protected by the Constitution’s “speech or debate” clause, which grants members of Congress immunity from criminal investigation when acting in their official capacities.

The FBI seized Perry’s phone in August 2022 under a court order seeking to understand Perry’s involvement in the machinations that were the subject of Trump’s criminal indictment this August for allegedly plotting to prevent President Biden from taking office.

An outline of the contents of Perry’s sensitive discussions with Trump’s legal advisers, aides and others spilled into public view in a quickly withdrawn court filing last month, revealing details of efforts to gain access to secret intelligence about the election, to replace the attorney general with former Justice Department official Jeffrey Clark and to reverse the department’s finding that Biden had been elected fairly. The filing also described Perry’s discussions with Pennsylvania state officials who supported Trump’s fraud allegations, with private individuals claiming expertise in cybersecurity and with attorneys for Trump’s campaign.

Tuesday’s order will determine which messages investigators with special counsel Jack Smith can actually use as potential evidence in any case, pending an expected renewed appeal by Perry, part of legal fight that has tied up the records for more than a year.