News bits: A democracy threat analysis; Georgia court case update

A NYT opinion by two legal scholars points to the most likely path that radical right authoritarian state legislatures can subvert the 2024 election. They write (not paywalled off):

After the assault on the nation’s Capitol three years ago, we worked through every strategy we could imagine for subverting the popular will by manipulating the law. What we found surprised us. We determined that the most commonly discussed strategies — such as a state legislature picking a new slate of electors to the Electoral College — wouldn’t work because of impediments built into the Constitution. We also concluded that the most blatantly extreme strategies, such as a state canceling its election and selecting its electors directly, are politically unlikely.

The scenario we see as the most alarming was made possible by the Supreme Court itself. In a 2020 decision, the court held, in our reading, that state legislatures have the power to direct electors on how to cast their electoral votes. And this opens the door to what we think is the most dangerous strategy: that a legislature would pass a law that directs electors to vote for the candidate the legislature picks.

Imagine the election results in a state are close. Charges of fraud cloud a recount. Leaders in the state legislature challenge the presumptive result. In response to those challenges, the legislature votes to direct their electors to cast their ballots for the candidate who presumptively lost but whom the legislature prefers. Any elector voting contrary to the legislature’s rule would be removed and replaced with an elector who complied.

The question now is whether there is any way to close that loophole before a stolen election slides through.

In my very humble opinion, for the foreseeable future there is no way to close that loophole before a stolen election slides through. The 2024 election would very well be stolen by Trump and his corrupt authoritarian enablers.

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Some news sources are reporting that the criminal lawsuit against DJT is in serious trouble due to misconduct by chief prosecutor Fani Willis. Willis added prosecutor Nathan Wade to her team, but dirt diggers somehow found out that Willis and Wade were having an affair. As you an imagine, Michael Roman, the Trump co-defendant who discovered the affair, immediately filed a motion to remove Willis and Wade from the case due to alleged prosecutor misconduct. The authoritarian radical right dark free speech machine fired up in self-righteous moral outrage claiming witch hunt and etc. Legal experts at a group called Just Security published an analysis of the situation based on the limited public information available so far. JS writes:

Why Fani Willis Is Not Disqualified Under Georgia Law

 

Based on what is known so far, it represents poor judgment—especially in a case of this magnitude, even if a prosecutor’s private life is generally none of the public’s business. Willis has already said publicly that she is “flawed” and “imperfect” in her public remarks at Bethel AME Church following the allegations. But whether there were personal failings is not the operative legal test for whether Willis or Wade should be disqualified from the case, and accordingly that question is not the focus of this essay.

The key point is that regardless of whether the factual circumstances involving Willis and Wade give rise to separate ethical concerns with respect to his hiring, such questions do not affect the propriety of the prosecution against [Trump co-defendant Michael] Roman and his co-defendants.

As a matter of both common sense and Georgia law, a prosecutor is disqualified from a case due to a “conflict of interest” only when the prosecutor’s conflicting loyalties could prejudice the defendant leading, for example, to an improper conviction. None of the factual allegations made in the Roman motion have a basis in law for the idea that such prejudice could exist here – as it might where a law enforcement agent is involved with a witness, or a defense lawyer with a judge.

When this story first broke, it seemed as if this revelation could derail the entire criminal lawsuit against DJT and his co-defendants. The Just Security analysis suggests it would be best if Wade removed himself from the prosecution, but it does not yet look like this will get Trump off the hook for his crimes. Nonetheless, we can count on DJT howling in faux sanctimonious moral outrage about the horrors of prosecutorial misconduct. 

Just Security is right to say that Willis showed poor judgment on a case this important. She had to know that her private life would be looked at by professional dirt diggers and the affair found and exposed. Unbelievable stupidity by Willis. Time will tell if this turns out to be a way that Trump once again gets to weasel out of accountability for his crimes. If it turns out that Willis is hiding more than just an affair, the entire lawsuit could crash and burn.

Make your best guess........

 Since it is apparent that Donald Trump will be the next President, speculation has begun as to who will be his VP.

Among the names most commonly floated among pundits and press right now are: Rep. Elise Stefanik (R-N.Y.), Sen. J.D. Vance (R-Ohio), South Dakota Gov. Kristi Noem, former Arizona gubernatorial candidate Kari Lake, Sen. Lindsey Graham (R-S.C.), former South Carolina Gov. Henry McMaster, Arkansas Gov. Sarah Huckabee Sanders, former Housing and Urban Development Secretary Ben Carson, North Dakota Gov. Doug Burgum, former presidential candidate Vivek Ramaswamy and Sen. Tim Scott (R-S.C.).

https://www.forbes.com/sites/saradorn/2024/01/21/here-are-trumps-most-likely-running-mate-picks/?sh=26bb036b6501

OR maybe.......

Trump Jr. says Tucker Carlson ‘certainly’ a VP contender

https://thehill.com/homenews/campaign/4416145-trump-jr-tucker-carlson-vp-contender/

OR could it be?

Donald Trump Jr and Ivanka Trump are among Republican voters’ top picks for the GOP presidential nomination in 2024, according to a new poll.

(The poll is four years old, but would anyone be surprised if the numbers are close to the same?)

https://www.theguardian.com/us-news/2020/jan/04/donald-trump-jr-ivanka-trump-2024-presidential-election-poll

So.............

AND give us your best suggestion of who Trump should pick for VP, or who you think he will pick.

About a possible USSC power grab: Autocracy vs. plutocracy-theocracy?

The Nation reports its analysis of the likely flow of power if the USSC decide to gut the power of federal agencies. Like I’ve commented before, the situation at present seems to be one where the USSC takes power to build and defend a corrupt authoritarian single-party state vs the autocrat Trump who is out for power for himself. The two seem to me to be on a collision course. TN writes:

We Are Witnessing the Biggest Judicial Power Grab Since 1803

During a major hearing this week, the conservative justices made clear they’re about to gut the federal government’s power to regulate—and take that power for themselves

The Supreme Court heard two consolidated cases yesterday that could reshape the legal landscape and, with them, the country. The cases take on Chevron deference—the idea that courts should defer to executive agencies when applying regulations passed by Congress. They’re the most important cases about democracy on the court’s docket this year, and I say that knowing full well that the court is also set to decide whether a raving, orange criminal can run again for president, and whether former presidents are immune from prosecution for their crimes in the first place.

That’s because what conservatives [sigh, they are not conservatives, they are authoritarians] on the court are quietly trying to do is pull off the biggest judicial power grab since 1803, when it elevated itself to be the final arbiter of the Constitution in Marbury v. Madison. They’re trying to place their unelected, unaccountable policy preferences ahead of the laws made by the elected members of Congress or rules instituted by the president. If conservatives get their way, elections won’t really matter, because courts will be able to limit the scope of congressional regulation and the ability of presidents to enforce those regulations effectively. And the dumbest justice of all, alleged attempted rapist Brett Kavanaugh, basically said so during oral arguments.

I’m contractually obligated to tell you that the cases were technically about fees that fisheries are required to pay to federal observers. But all the justices talked about was Chevron deference. Only Justice Sonia Sotomayor even bothered to mention the fish, three hours and 20 minutes into a three-and-a-half-hour hearing. 

Justice Katenji Brown Jackson also brought up what I think should be the dispositive point: She said that getting rid of Chevron deference was “impractical and chaotic.” It’s hard to emphasize this point enough. Without Chevron deference, every single agency rule is likely to be challenged in court by some disaffected party. And with no standard other than what judges think the policy should be, we’re going to end up with wildly different rulings about the same regulation, depending on which lower court (and especially which Trump judge) hears the case.  

Solicitor General Elizabeth Prelogar and Justice Elena Kagan brought up the thousands and thousands of cases (over 17,000, according to briefs submitted to the court) that have been decided on Chevron grounds over the past 40 years. Potentially all of them could be up for re-argument should the court overrule Chevron. The conservative super lawyer Paul Clement, who was arguing against Chevron deference, promised this wouldn’t happen, but his reasoning was hypocritically thin. He said courts would still respect the precedents that happened under Chevron, even as he was arguing out of the other side of his mouth that the court should ignore the very precedent set by Chevron. His argument reduces to: “The leopards we unleash will only eat the right faces.”

TN explains that the term “Chevron deference” comes from a 1984 case, Chevron v. Natural Resources Defense Counsel. There, a provision of the Clean Air Act required manufacturing plants to get permits before increasing toxic emissions. The Environmental Protection Agency made a rule, pursuant to the Clean Air Act, that allowed some of these industrial plants to increase emissions in certain cases without a permit, and environmental groups sued. The USSC held that the EPA had the authority to make the rule and that the courts should “defer” to the judgment of executive agencies when acts of Congress are ambiguous or plausibly allow the agencies to make additional regulations.

As we all know by now, thanks to DP (me) harping on it so often, most of what Congress writes and passes is incoherent, ambiguous blither. With sloppy laws being common, Chevron deference amounted to a massive shift in power to federal agencies with professional and expert bureaucrats trying to figure out what Congress actually wanted and how to implement whatever it was based on their expertise. Congress does not have such expertise. And now that Congress is gridlocked and incapable of functioning, one can expect matters to worsen.** It is dominated by idiot, self-serving politicians concerned mostly with elections and re-elections.

** TN summarized it nicely like this: 

What [justice Neil Gorsuch] understands is that Chevron deference is the key to running a modern administrative state. Congress is going to pass only so many laws (even fewer in times of government gridlock). Those laws are going to have ambiguity and gaps, because of both the political deals that are made to get the laws passed and Congress’s general incompetence. Chevron deference allows the executive agencies to fill in those gaps. Without it, only the courts can do that—and in many cases, those gaps won’t get filled at all. Without executive agencies with robust powers, it will be easier for companies to pollute the air and water, billionaires to cheat on their taxes, tech bros to monopolize markets, and mass shooters to buy restricted guns and ammunition.

That’s the world, and the power, Neil Gorsuch wants. .... That’s not a democracy, that’s a juristocracy, where our votes are suggestions until the judicial machine tells us what laws we’re allowed to have.

Kleptocratic autocracy vs kleptocratic plutocracy-theocracy

As best I can tell, if the USSC guts Chevron deference, the court will have to shoot down Trump’s run at dictatorship. In that case, kleptocratic plutocracy-theocracy will be ascendant and power will probably consolidate itself in that political framework. If Chevron is left intact, I suspect the USSC will probably let Trump off the hook and allow him to form a kleptocratic dictatorship. I think the former is more likely than the latter, but I just don’t have a feel of the odds for either outcome. 

Obviously that is just my speculation. This could play out lots of different ways. Specifically all the elites could come to a power-sharing agreement in an outcome that is partly autocratic, partly plutocratic, partly Christian theocratic and fully kleptocratic. All parties involved will vehemently deny my speculations and say they are just humble, honest servants only doing what is constitutional and good for America, the American people and the whole world. So, don’t look to the elites to be even a little bit honest about any of this. 

News bit 'n chunk: Clarence Thomas investigation??; Tax data leaker gets whacked

From the Snowball’s Chance Files: Raw Story reports:

“Highly unusual”: Body that governs federal courts 

hints at Clarence Thomas investigation

At the behest of an anti-corruption watchdog group, the Judicial Conference of the United States (JCUS) has issued a report suggesting that it may be conducting a rare investigation into Supreme Court Associate Justice Clarence Thomas.

Earlier this week, the Campaign Legal Center (CLC) issued an update on its request to the JCUS to publish its Report of the Proceedings from its September 2023 meeting, arguing that “public interest” necessitated information on efforts to have Justice Thomas referred to the Department of Justice for alleged violations of financial disclosure laws. The JCUS’ report only said there was an “ongoing review of public written allegations of errors or omissions in a filer’s financial disclosure reports,” but the CLC viewed that as a significant development.  

Even though the JCUS — whose membership consists of the chief justice of each federal circuit court, the Chief Judge of the Court of International Trade and a US district judge from each circuit — is charged with regulating judicial ethics, it’s unable to impeach judges or remove them from the bench. However, it does have the power to refer judges to the DOJ for investigation that can potentially lead to civil penalties.

The statistical analysis division of my minions have analyzed this matter upon my polite request (at gunpoint). The supercomputer worked the equations. It barfed up a result indicating that that any meaningful action against Thomas The Corrupt Grifter and Fibbing Liar from CLC, JCUS and/or the DoJ is in the Snowball’s Chance in Hell category, i.e., less than 0.1%.

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The USA Today reports:

DOJ: Ex-IRS employee who leaked Trump's tax returns 

intentionally got job to disclose records

A former Internal Revenue Service contractor, who leaked tax information about Donald Trump and other wealthy individuals to news organizations, got his job to intentionally to spread the confidential records, according to Justice Department prosecutors.

Charles Edward Littlejohn, 38, of Washington, pleaded guilty in October to unauthorized disclosure of tax return and return information. U.S. District Judge Ana Reye scheduled sentencing for Jan. 29. Prosecutors recommended Tuesday he receive the maximum sentence of five years in prison.

Littlejohn evaded IRS protocols to detect and prevent large downloads from government computers and then saved the tax returns on multiple devices, including an iPod, according to court records. He also obstructed the investigation by deleting and destroying evidence of his disclosures, according to court records.

ProPublica reported in 2021 on a trove of tax-return data about the wealthiest Americans. It found the 25 richest people legally pay a smaller share of their income in taxes than many ordinary workers do.

“And the human impact of Defendant's crimes is enormous,” prosecutors wrote. “Many victims have come forward, expressing anger and embarrassment about the exposure of their personal financial information. Worse, it appears that the harm may continue indefinitely” because stories continue to be published.

According to the IRS, on April 5, 1870, IRS Commissioner Delano forbade tax assessors from furnishing lists of taxpayers for publication. On July 14, 1870, Congress passed a revenue act stating, “no collector … shall permit to be published in any manner such income returns or any part thereof, except such general statistics …” Thus, up until 1870, tax returns were public records.

Some history according to Professor Pomp (his real name) about the the debate and law surrounding public access to individual tax returns: 

To fund the Civil War, the Revenue Act of 1862 imposed an income tax on individuals. At a time which predated reliable mail, the public was notified of their tax liabilities through newspaper advertisements.

In 1870, when the income tax had become unpopular, Congress prohibited the publication of tax returns. Public disclosure was revisited in 1913; by 1918 the public was permitted to view lists of individual taxpayers, though this information was not allowed to be published.

Fueled by corruption concerns, the Revenue Act of 1924 required the disclosure of names, addresses, and tax liabilities. The New York Times published the taxes paid by thousands of persons. In 1926, however, the law was changed due to privacy concerns and the failure of the disclosures to uncover tax evasion. Only the taxpayer’s name and address, but not their tax liability, could be published.

A resurgence in favor of disclosure emerged in 1934, during the Great Depression. The tax liability (as well as name, address, gross income, deductions, net income, and credits) of taxpayers was made public in an attempt to deter tax evasion. But critics of this approach, concerned that compromised taxpayers would be targeted by criminals and con artists, managed to repeal the law.

The law remained unchanged until, in the aftermath of Watergate, Congress enacted IRC section 6103.

Qs: So, is Littlejohn a patriotic hero or a socialist scumbag? Should tax returns once again be made public records, at least for people having a net worth of, say, $10 million?

What!!?? That incompetent 

jackass makes how much??

PS: On some reflection, I vote for making tax returns public once again, just to kill off some of the rot.