News bits: A ruling against DJT; Another warning; Christian nationalist “history”

The lawsuits against DJT are producing a lot of filings by the parties and court responses. Some of the documents merit a mention. DJT keeps denying the charges and files motions to have the cases against him dismissed. The prosecution has to keep rebutting those filings, and then the court has to decide. In this 48 page document, the federal DC trial court rejects DJT’s most recent motion to dismiss the entire federal insurrection case based on Presidential immunity, (“Immunity Motion”) and on constitutional grounds. At this point, one can now expect DJT to appeal to the DC federal appeals court. DJT faces four 1/6 insurrection-related felony counts in this lawsuit. Some of the decision and my comments follow.

The judge: At the motion to dismiss stage, the court assumes the truth of the Indictment’s allegations. 

This points out the fact that it is still early in the case. Here, the court says that the facts and allegations in Jack Smith’s indictments are taken as true. That shifts the burden to DJT to show that the contested facts and allegations are false. Key matters at issue include:

1. DJT organized electors as part of his attempt to convince legislators not to certify the 2020 election. Dang, it’s gonna be real hard to disprove that.

2. Despite having lost the 2020 election, DJT “was determined to remain in power,” (quoting Smith’s indictment) so “for more than two months following election day on November 3, 2020, the Defendant spread lies that there had been outcome-determinative fraud in the election and that he had actually won.” Whew, that’s gonna be real hard to disprove.

3. DJT “knew that [those claims] were false,” but “repeatedly and widely disseminated them anyway—to make his knowingly false claims appear legitimate, create an intense national atmosphere of mistrust and anger, and erode public faith in the administration of the election.” Yikes! That's gonna be a stinker to disprove because there’s a buttload of evidence that DJT was told over and over that he lost and also evidence he knew it by saying so.

Anyway, the court drones on and on and on like this. There’s no way in hell that DJT can disprove squat about the allegations that Smith levels at him.

The judge: Because a court’s use of its supervisory power to dismiss an indictment directly encroaches upon the fundamental role of the grand jury, dismissal is granted only in unusual circumstances.

Whatever immunities a sitting President may enjoy, the United States has only one Chief Executive at a time, and that position does not confer a lifelong “get-out-of-jail-free” pass.  Former Presidents enjoy no special conditions on their federal criminal liability.  Defendant may be subject to federal investigation, indictment, prosecution, conviction, and punishment for any criminal acts undertaken while in office.

I point this out because collectively it says that what DJT is trying to do isn’t easily done in normal circumstances. This is important because the trial court is where facts are found. Appeals courts do not look at facts the trial court has found. So when DJT appeals, there will have to be legal errors, not fact errors the appeal will be based on. Given the record here, DJT is really screwed on the facts, which are rock solid and mostly in the public domain. That is unusual. He can only pray the trial court judge made a significant legal error. The judge, Tanya Chutkan, doesn’t strike me as sloppy.

For giggles, the tail end of the judge’s legal analysis shows the desperate situation DJT is in:

The judge: Finally, Defendant argues that, for the Indictment to comply with due process, the prosecution bears the burden to “provide examples where similar conduct was found criminal.” Under that theory, novel criminal acts would never be prosecuted. 

In other words, DJT actually argues that he cannot be prosecuted for breaking those laws at least sort of like he did because no one before him has broken those laws about the same way he broke them. In other words, if a criminal finds a new way to break a law, they get off Scott-free for being creative! MAGA!! DJT’s attorneys deserve credit for their artistic creativity! 👏. . . . ☹️ . . . . ☠️ . . . .👎

At the moment, it’s pretty clear that DJT is guilty. The open question is whether he will be able to (i) delay the federal trial long enough to get elected and then shut down the DoJ lawsuit against himself if he or some other MAGA Republican is re-elected or elected, or (ii) pardon himself if he or some other MAGA Republican is re-elected or elected. 

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A NYT opinion by Frank Bruni, It’s Not the Economy. It’s the Fascism., opines (not paywalled off):

To spend more than a little time toggling between news sites of different bents is to notice a fierce debate over the American economy right now. Which matters more — the easing of inflation or the persistence of prices that many people can’t afford or accept? Low unemployment or high interest rates? Is the intensity of Americans’ bad feelings about the economy a sane response or a senseless funk estranged from their actual financial circumstances?

On such questions may the 2024 election turn, so the litigation of them is no surprise. It’s not just the economy, stupid. It’s the public relations war over it.

But never in my adult lifetime has that battle seemed so agonizingly beside the point, such a distraction from the most important questions before us. In 2024, it’s not the economy. It’s the democracy. It’s the decency. It’s the truth.

I’m not talking about what will influence voters most. I’m talking about what should. And I write that knowing that I’ll be branded an elitist whose good fortune puts him out of touch with the concerns of people living paycheck to paycheck or priced out of housing and medical care. I am lucky — privileged, to use and own the word of the moment — and I’m an imperfect messenger, as blinded by the peculiarities of his experience in the world as others are by theirs.

But I don’t see any clear evidence that a change of presidents would equal an uptick in Americans’ living standards. And 2024, in any case, isn’t shaping up to be a normal election with normal stakes or anything close to that, at least not if Donald Trump winds up with the Republican presidential nomination — the likeliest outcome, to judge by current conditions. Not if he’s beaten by a Republican who had to buy into his fictions or emulate his ugliness to claim the prize. Not if the Republican Party remains hostage to the extremism on display in the House over these past few months.

That assessment isn’t Trump derangement syndrome. It’s straightforward observation, consistent with Liz Cheney’s new memoir, “Oath and Honor,” at which my Times colleague Peter Baker got an advance peek. Cheney describes House Republicans’ enduring surrender to Trump as cowardly and cynical, and she’s cleareyed on what his nomination in 2024 would mean. “We will be voting on whether to preserve our republic,” she writes. “As a nation, we can endure damaging policies for a four-year term. But we cannot survive a president willing to terminate our Constitution.”

I post different warnings from different people because they often see things I do not and they articulate their worries in ways differently and usually better than I can. I don’t mean to be mindlessly repetitive. But giving voice to different ways of seeing and speaking about the grave danger of bigoted, kleptocratic tyranny strikes me as the best I can do to fight off the gathering darkness. Could I do better? If so, how?

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A really long piece by Politico does a deep dive into some influential Christian crackpots who shamelessly lie about history to deceive, manipulate and grift people. They use dark free speech to shamelessly attack and betray secular democracy, and civil liberties, the rule of law and actual history. Even if they have been outed as liars and ignorant fantasists, tens of thousands of adult Americans revere and trust these deeply immoral, grifter-liars: 

The Bogus Historians Who Teach Evangelicals 

They Live in a Theocracy

A new book on the Christian right reveals how a series of unscrupulous leaders turned politics into a powerful and lucrative gospel

.... they had come out by the hundreds, decked out in patriotic attire this October evening in 2021, to hear from a man who was introduced to them as “America’s greatest living historian.” They had come for David Barton. And so had I.

It would be of little use to tell the folks around me — the people of my conservative hometown — that Barton wasn’t a real historian. They wouldn’t care that his lone academic credential was a bachelor’s degree in religious education from Oral Roberts University. It wouldn’t matter that Barton’s 2012 book on Thomas Jefferson was recalled by Thomas Nelson, the world’s largest Christian publisher, for its countless inaccuracies, or that a panel of 10 conservative Christian academics who reviewed Barton’s body of work in the aftermath ripped the entirety of his scholarship to shreds. It would not bother the congregants of FloodGate Church to learn that they were listening to a man whose work was found by one of America’s foremost conservative theologians to include “embarrassing factual errors, suspiciously selective quotes, and highly misleading claims.”

All this would be irrelevant to the people around me because David Barton was one of them. He believed the separation of church and state was a myth. He believed the time had come for evangelicals to reclaim their rightful place atop the nation’s governmental and cultural institutions. Hence the hero’s welcome Barton received when he rolled into FloodGate with his “American Restoration Tour.”  

Throughout his decades of public life — working for the Republican Party, becoming a darling of Fox News, advising politicians such as new House Speaker Mike Johnson, launching a small propaganda empire, carving out a niche as the American right’s chosen peddler of nostalgic alternative facts — Barton had never been shy about his ultimate aims. He is an avowed Christian nationalist who favors theocratic rule; moreover, he is a so-called Dominionist, someone who believes Christians should control not only the government but also the media, the education system, and other cultural institutions. Barton and his ilk are invested less in advancing individual policies than they are in reconceiving our system of self-government in its totality, claiming a historical mandate to rule society with biblical dogma just as the founders supposedly intended.  

This is what the “American Restoration Tour” was all about: restoring a version of America that never existed.

David Barton, facing camera

Barton

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DJT speaks truth for a change

Two bits: The one-way ratchet to tyranny; The ratchet's political moral lubricant

 Ratcheting our way to kleptocratic dictatorship, one step at a time: The HuffPo reports that Senate Democrats used a rule-breaking tactic to advance two judicial nominees because Republicans themselves had done the exact same thing twice. Sen. Judiciary Committee chairman Durban called the rule breaking just a matter of following the Republican “precedent.” 

Republicans on the Senate Judiciary Committee had full-blown meltdowns on Thursday after Chairman Dick Durbin (D-Ill.) held votes on two of President Joe Biden’s judicial nominees without allowing debate on them, saying he was simply following the “new precedent” established by Republicans when they did the same thing to Democrats, twice.

Durbin appeared to completely blindside Republicans by moving straight to votes on two U.S. District Court nominees, Mustafa Kasubhai and Eumi Lee, without opening up the floor for discussions on them. Both nominees had two previous hearings and had been debated. But typically the panel would still allow for more discussion in what was their confirmation hearing.

“The two preceding chairs of this committee violated the letter and spirit of Committee Rule IV,” Durbin said, referring to a committee rule that requires at least one member of the minority to vote with the majority to end debate on a matter before moving to vote on it.

Durbin said one former chair, Chuck Grassley (R-Iowa), violated this rule with a vote on Brett Kavanaugh’s Supreme Court nomination, and Lindsey Graham (R-SC) was chair when he broke the rule to advance a partisan immigration bill without Democratic input. 

“In doing so, Republicans established a new precedent that I followed on one occasion last Congress and will follow again today,” said the Illinois Democrat. “I’ve said time and again there cannot be one set of rules for Republicans and a different set for Democrats.”

If I recall right, Senate Republicans when Obama was in office were blocking all judicial nominees, even though they did not control the Senate. The Dems could not get even one judge confirmed. So, Dems changed the rule to confirm a trial and appeals court nominees. The Dems left intact the existing rule for confirmation of Supreme Court justices. 

After they got back in control of the Senate, radical Republicans got their revenge. They (1) refused to allow Obama's nominee Merrick Garland to even get a hearing, and (2) removed the rule for Supreme Court judges. That allowed authoritarian radical Senate Republicans to bulldoze onto the court three corrupt, radical right authoritarian Christian nationalist plutocrats. Those three extremists are the radical Gorsuch, the sex predator Kavanaugh, and the Christian nationalist freak Barrett. 

One can see where this is going. The toxic act-react ratchet keeps moving the Senate and American politics generally away from bipartisanship and pro-democracy compromise. It pushes us toward single party rule and some form of kleptocratic authoritarianism or tyranny.

In my firm opinion, this one-way trek to kleptocratic dictatorship hell is inevitable because the Republican Party has radicalized and become authoritarian. Unless absolutely necessary, the GOP no longer cooperates, compromises or even respects inconvenient fact or truth. For the modern radicalized GOP, winning power and wealth is everything. Democracy, civil liberties and the rule of law just get in the way.

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The House voted 311-114 today to expel George Santos, with 105 Repubs voting to expel him. 

The main reasons were criminal indictments against him, and House ethics rules prohibiting misuse of campaign funds and various alleged crimes. The Hill comments:

Once seen as a GOP trailblazer, Santos is facing federal indictment on 23 counts of wire fraud, identity theft and other campaign finance charges, and many Republicans came to view him as a drag on the party’s image and a liability heading into a tough election cycle where control of the House is up for grabs.  

Santos has consistently pointed out that he has only been charged and not convicted.

“It starts and puts us in a new direction, a dangerous one, that sets a very dangerous precedent for the future,” Santos said on the House floor Tuesday. “Are we to now assume that one is no longer innocent until proven guilty, and they are in fact guilty until proven innocent? Or are we now to simply assume that because somebody doesn’t like you, they get to throw you out of your job.”

People voting against expelling Santos argued this would set a bad or dangerous precedent for the reasons Santos himself raised in his defense. Sadly, that is spot on true. The concern is about political self-preservation. Lots of Repubs probably have skeletons in the closet and want more protection for their jobs in case they get caught and whacked. If this serves as precedent, then the ratchet can be fired up any time some politician in the House gets incited for committing one or more crimes. The overwhelming moral concern appears to be political self-preservation, not defense of voters or democracy.

Only one news report about Santos today that I've seen even mentioned the fact that Santos got elected to office on the basis of his slew of jaw-dropping lies and fantasy stories. Voters were deceived and screwed out of a knowing choice. Among the news reports I saw, only one person who was reported to raise the concern that Santos lied to me. That complaint was raised by an irate Santos constituent, not any news media I'm aware of and not any politician. That fact of screwed voters was not very important, at least for the politicians who voted not to expel. For those people, lying to voters is not grounds for expulsion.

Santos should have been expelled as soon as the scope and depth of his lies and deceit of voters became clear and undeniable. In other words, deceiving voters and screwing them out of an informed choice is not major a moral concern for the politicians here. Even the people who voted to expel were focused on Santos’ bad criminal actions, not playing immoral dirty tricks on voters. Or, if some politicians who voted to expel were concerned about screwed voters, it wasn't reported much or at all. 

NYT book review: It Can't Happen Here

It Can't Happen Here is the 1935 Sinclair Lewis novel that predicted the rise of fascism in America. From a Jan. 2017 NYT book review, Reading the Classic Novel That Predicted Trump:

“It Can’t Happen Here” is a work of dystopian fantasy, one man’s effort in the 1930s to imagine what it might look like if fascism came to America. At the time, the obvious specter was Adolf Hitler, whose rise to power in Germany provoked fears that men like the Louisiana senator Huey Long or the radio priest Charles Coughlin might accomplish a similar feat in the United States. Today, Lewis’s novel is making a comeback as an analogy for the Age of Trump. Within a week of the 2016 election, the book was reportedly sold out on Amazon.com.

At a moment when instability seems to be the only constant in American politics, “It Can’t Happen Here” offers an alluring (if terrifying) certainty: It can happen here, and what comes next will be even ghastlier than you expect. Yet the graphic horrors of Lewis’s vision also limit the book’s usefulness as a guide to our own political moment. In 1935, Lewis was trying to prevent the unthinkable: the election of a pseudo-fascist candidate to the presidency of the United States. Today’s readers, by contrast, are playing catch-up, scrambling to think through the implications of an electoral fait accompli. If Lewis’s postelection vision is what awaits us, there will be little cause for hope, or even civic engagement, in the months ahead. The only viable options will be to get out of the country — or to join an armed underground resistance.

Lewis’s book sold 320,000 copies, becoming his most popular work to date. Reviewers agreed that the book’s success had little to do with its literary merits; though “a vigorous anti-fascist tract,” one critic noted, it was “not much of a novel.” What propelled its popularity was a sense of urgency, the worry that the United States — like the nations of Western Europe — might contain dark forces yet to be unleashed.

milo mentioned this book in a comment today. I was unaware of it. This seems appropriate for the interesting times we are going through. Some other reviews say that the book did not predict Trump, but most all the reviews out there talk about disturbing parallels, similarities and the like between Trump and the fictitious bad guy, US Senator Berzelius "Buzz" Windrip. The bad guy rises to power to become America’s first outright dictator.

News bits: The warnings get more desperate; Germaine’s war update; Free speech battles

Another warning comes in a really long WaPo opinion by Robert Kagan (not behind the paywall):

A Trump dictatorship is increasingly inevitable. We should stop pretending.

Let’s stop the wishful thinking and face the stark reality: There is a clear path to dictatorship in the United States, and it is getting shorter every day. In 13 weeks, Donald Trump will have locked up the Republican nomination. In the RealClearPolitics poll average (for the period from Nov. 9 to 20), Trump leads his nearest competitor by 47 points and leads the rest of the field combined by 27 points. The idea that he is unelectable in the general election is nonsense — he is tied or ahead of President Biden in all the latest polls — stripping other Republican challengers of their own stated reasons for existence. The fact that many Americans might prefer other candidates, much ballyhooed by such political sages as Karl Rove, will soon become irrelevant when millions of Republican voters turn out to choose the person whom no one allegedly wants.

For many months now, we have been living in a world of self-delusion, rich with imagined possibilities. Maybe it will be Ron DeSantis, or maybe Nikki Haley. Maybe the myriad indictments of Trump will doom him with Republican suburbanites. Such hopeful speculation has allowed us to drift along passively, conducting business as usual, taking no dramatic action to change course, in the hope and expectation that something will happen. Like people on a riverboat, we have long known there is a waterfall ahead but assume we will somehow find our way to shore before we go over the edge. But now the actions required to get us to shore are looking harder and harder, if not downright impossible.

The magical-thinking phase is ending. Barring some miracle, Trump will soon be the presumptive Republican nominee for president. When that happens, there will be a swift and dramatic shift in the political power dynamic, in his favor. Until now, Republicans and conservatives have enjoyed relative freedom to express anti-Trump sentiments, to speak openly and positively about alternative candidates, to vent criticisms of Trump’s behavior past and present. Donors who find Trump distasteful have been free to spread their money around to help his competitors. Establishment Republicans have made no secret of their hope that Trump will be convicted and thus removed from the equation without their having to take a stand against him.  

In fact, it has already begun. As his nomination becomes inevitable, donors are starting to jump from other candidates to Trump.

Kagan’s opinion piece goes on at length like that. Notice that some (most? nearly all?) Trump donors are more concerned about their wealth and power than democracy, civil liberties or the rule of law. And, some things bear repeating:

 

Let’s stop the wishful thinking and face the stark reality: There is a clear path to dictatorship in the United States .... we have been living in a world of self-delusion, rich with imagined possibilities. Maybe it will be Ron DeSantis, or maybe Nikki Haley. Maybe the myriad indictments of Trump will doom him with Republican suburbanites .... Trump will soon be the presumptive Republican nominee for president. When that happens, there will be a swift and dramatic shift in the political power dynamic, in his favor. .... In fact, it has already begun.

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Update in Germaine’s war on (defense against?) dictators, grifters, 

liars, aggressors, irrational emotional manipulators and traitors

In view of the increasing likelihood that DJT will be the next president with a central goal of killing democracy to establish his vision of an American authoritarian kleptocracy, I’ve ramped up my efforts in defense of democracy. I’m now writing emails to authors at NYT, WaPo and other sources who either (1) still don’t see the threat, or (2) maybe unknowingly continue to normalize and validate the intent of America’s the radical right’s authoritarianism and deep corruption by calling it stupid, inaccurate stuff like “conservatism”, “conservative”, “the right”, “traditional” or “moderate conservative.” I try to send out one respectful, fact- and logic-supported dart every 2-3 days. I am careful about who gets pick, what is written and why. Some of those folks do not want to be contactable by email (I don’t do traditional big social media), so they can be hard or impossible to track down.

I suspect that targeting authors at actual journalism sources will have more pro-democracy impact than engaging in hand-to-hand combat with radical right trolls, cranks and conspiracy freaks at online news and politics sites that still have not banned or blocked me, e.g., BN&R, National Zero and reddit. Most of the radical right politics online world has banned or blocked me, so that's not an option.

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In an interesting analysis piece, WaPo author Philip Bump mused about Musk’s latest outrage over the alleged infringement of his sacred free speech rights. This is about a key propaganda point that authoritarian radical right liars and haters constantly raise as they howl in self-righteous moral outrage about things they don’t like. Musk doesn’t like losing money or advertisers on X that pay him money. He’s losing some now because of his recent virulent outburst of anti-Semitism. Bump writes:

Once again: Speaking freely doesn’t mean 

speaking without consequence

Elon Musk’s fury at advertisers is a microcosm of a prevalent view of speech and primacy on the right

On Wednesday, Elon Musk appeared at the New York Times’s DealBook Summit, where he was interviewed by Andrew Ross Sorkin (whom Musk at one point called “Jonathan”). Sorkin asked Musk about companies pulling their ads from X (formerly Twitter) in the wake of a report showing ads sitting next to pro-Nazi content and after Musk’s endorsement of antisemitic rhetoric and conspiracy theories.

Musk was indignant. He claimed that he wanted those companies to stop advertising.

“If somebody’s going to try to blackmail with advertising? Blackmail me with money?” he said. “Go f--- yourself.”

Musk has framed his social media company as a battleground in the war over honesty and truth, insisting that any criticism of the company or his decisions is rooted in a fear of an unfiltered reality. But those advertisers aren’t leaving because they are terrified of forbidden truths and desperate to get Musk to silence those they fear. They’re leaving because they don’t want their brands associated with Nazis. They’re probably also leaving in part because Twitter’s audience is shrinking, whatever bespoke metrics the company invents to give a different impression. If you’re Coca-Cola, the cost-benefit analysis here isn’t that complicated.

An advertiser boycott was “going to kill the company,” Musk insisted to Sorkin. “And the whole world will know that those advertisers killed the company, and we will document it in great detail.”  

For a long time, Musk — and many others on the right — have labored under the misapprehension that the right to free speech also means facing no repercussions for what you say.  

Advertisers aren’t “blackmailing” Musk to get him to make X less toxic or to encourage him not to post endorsements of hateful rhetoric. They’re just leaving because Twitter has changed. If anyone is trying to extort anyone, it’s Musk and X chief executive Linda Yaccarino.  

“Information independence” is a terrific phrase, in the same way that “alternative facts” is. It’s a cloak of seriousness that nonsense can wear around the public square. The next time my kids get in trouble for lying at school, I’ll simply remind the principal that they were exercising “information independence.”

Musk accuses advertisers of blackmail for leaving X. They leave because is a toxic hellscape. The irrational arrogance and blatant lies here are off the charts. Musk is free to spout anti-Semitism, pro-Nazi hate, racism, anti-vaxx crackpottery and whatever other filth and harmful lies he chooses to poison America with. 

This is just one part of the beliefs and thinking of America’s authoritarian radical right kleptocratic wealth and power movement. For rancid radical right elites like Musk and the quieter ones with adult-level emotional control, it’s always about their wealth and power and nothing much else. Well, maybe except maybe for the out-of-control monsters like Musk, feeding gigantic egos is a part of the wealth and power thing. 

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Elite Christian Republican family values on parade:

Christian Ziegler, the Florida GOP Chair and husband of Moms for Liberty co-founder Bridget Ziegler, is under criminal investigation over allegations of sexual battery by a woman who claims to have been involved in a long-term sexual relationship with both of the Zieglers. The investigation was first reported by the Florida Center for Governmental Accountability’s news division The Florida Trident.

Moms for liberty is a crackpot far right hate group of nice White ladies that advocate against school curricula that mention LGBQT rights, non-White race and ethnicity, critical race theory, and faux discrimination against Whites, i.e., inconvenient history.

Ziegler (the pervert with his name on his shirt) The Mistress Beater

Doesn’t beat his wife because she would kill him with a 

baseball bat - MAGA Moms for Liberty wear the pants at the Zieglers house!

Checking out the mammals

(note the T. rex hairdoo)

Reconsidering policy choices

News bits: Another monster at the USSC; Abortion cruelty in TX; Fun fact check; Fun headlines

The Atlantic writes about another monster lawsuit that would gut a major part of federal government power to regulate vast amounts of money and financial crime: 

The Case That Could Destroy the Government

What was once a fringe legal theory now stands a real chance of being adopted by the Supreme Court

This Wednesday, the Supreme Court will hear a case that poses the most direct challenge yet to the legitimacy of the modern federal government. The right-wing legal movement’s target is the “administrative state”—the agencies and institutions that set standards for safety in the workplace, limit environmental hazards and damage, and impose rules on financial markets to ensure their stability and basic fairness, among many other important things. The case, Securities and Exchange Commission v. Jarkesy, threatens all of that. Terrifyingly, this gambit might succeed.

The case involves garden-variety securities fraud. George R. Jarkesy Jr., a right-wing activist and conservative-radio talk-show host, ran a pair of investment funds with $24 million in assets. But he misrepresented how the funds were run, paid himself and his partner exorbitant fees, and inflated the assets’ value. As punishment, the SEC fined him several hundred thousand dollars and prohibited him from working in some parts of the securities industry—very standard stuff.

Jarkesy responded with what can be described only as chutzpah. He didn’t just contest the SEC’s ruling; he alleged that the SEC’s entire process against him was unconstitutional. Among other things, he asserted that Congress never had the authority to empower the SEC and that the SEC adjudicator who punished him was too independent from presidential control.

In May of last year, Jarkesy’s arguments were accepted by two judges on the conservative Fifth Circuit Court of Appeals. In a 2–1 decision, the court agreed with Jarkesy, all but ruling the SEC’s entire existence unconstitutional. The opinion was so extreme that Judge W. Eugene Davis, twice appointed by Republican presidents—and elevated to the appeals court by Ronald Reagan—dissented vigorously.

Jarkesy’s most far-reaching constitutional argument is built on the “nondelegation doctrine,” which holds that there may be some limits on the kinds of powers that Congress can give to agencies. Jarkesy argues that, when Congress gave the SEC the power to decide whether to bring enforcement actions in court or in front of an independent agency adjudicator, it gave away a core legislative function. It thus violated the doctrine and engaged in an unconstitutional delegation.

This is wild stuff. Not long ago, a lawyer would have been laughed out of court for making such nondelegation claims. Today, they’d have a good chance of destroying the federal government’s administrative capacity—taking down its ability to protect Americans’ health and safety while unleashing fraud in the financial markets.

Whether Congress’s grant of authority to the SEC was constitutional should not be a close question. Congress has delegated expansive authority to government agencies since the dawn of the republic. Only twice in American history has the Supreme Court concluded that a delegation to an agency ran afoul of the Constitution—and both of those times, nearly 90 years ago, involved unusual statutes nothing like this one.  

The SEC was created as an independent agency in 1934, after the financial crash of 1929, to thwart the sort of market manipulation that preceded the Great Depression; Congress has granted it additional powers over the years to continue protecting financial markets. Responding to catastrophes and guarding against market manipulation is exactly the kind of work that Congress should empower the executive branch to do. Requiring Congress to legislate in response to every new fraud some crook might dream up would not be a good use of its time. And there’s no reason to think that delegating authority to police markets runs afoul of the Constitution. 

Notice how the radicalized autocratic, plutocratic, theocratic USSC can take down democracy, the rule of law and civil liberties. It just does it slowly, one case at a time, as quietly as possible. Power and wealth flow to wealthy elites and big corporations from government and individual citizens.

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From the Don't Blame the Cruel Anti-Abortionists Files: The Hill reports that the Texas state attorney is arguing in court that women who have been denied medical treatments for problem pregnancies should sue the doctors, not the state of TX.  

Lawyers in the Texas attorney general’s office said Tuesday that women should sue their doctors, not the state, over a lack of access to abortion in defending the state’s strict law.

Beth Klusmann of the Texas Attorney General’s Office made that point in oral arguments before the state Supreme Court in a case challenging Texas’s abortion ban, which bars doctors from providing abortions after a fetal heartbeat is detected — typically around six weeks into pregnancy — with exceptions only for cases in which the life of the mother is at risk.

“If a woman is bleeding, if she has amniotic fluid running down her legs — then the problem is not with the law,” Klusmann said. “It is with the doctors.”

Klusmann was responding to plaintiffs in the case, who had charged the legislation had plunged the state into a “health care crisis.”

The lawsuit in Zurawski v. Texas was brought by 22 women who said that state law had forced them to carry nonviable and dangerous pregnancies to term — in other words, to go through the ordeal of pregnancy with a fetus that would not survive, and that in many cases was putting them at serious risk.

The arrogance and callousness of the monsters that run the state of TX is breathtaking. First, TX legislators write sloppy, ambiguous laws that incentivized people to report doctors and health care providers for violating their crappy laws. Then, they tell women caught in the crossfire to sue the doctors.

TX sounds like a hell hole for women and other hated groups, but lots of people love the place, including lots of women and people in targeted groups. 

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To lighten things up here’s a fun history bit & fact check. The asserted history fact:

Here’s the PolitiFact verdict:

• Former House Speaker Kevin McCarthy’s assertion is undercut by two centuries of U.S. history, including land gains following wars against Mexico, Spain, Filipino rebels, Japan and Native American tribes.

• United States-Mexico war, 1848: Under the Treaty of Guadalupe Hidalgo, Mexico ceded 55% of its territory, including the present-day states of California, Nevada, Utah, New Mexico, most of Arizona and Colorado, and parts of Oklahoma, Kansas and Wyoming.

McCarthy, dressed in formal attire, embarrassed himself when he make his false assertion on November 26, 2023 in a speech at the Oxford Union. The Oxford Union is the 200-year-old debating society at the University of Oxford in England.

Those Republican elites. They’re just so full of . . . . . . MAGA!!

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“Epic humiliation”: GOP mocked for rejecting Hunter Biden offer to testify publicly --
“What the Republicans fear most is sunlight and the truth,” said Rep. Jamie Raskin

AOC Says Republicans Would Be “Humiliated” If Hunter Biden Hearing Was Public -- Rep. Alexandria Ocasio-Cortez said Republicans are afraid that the public will see that they have no case

It’s Official: Mike Johnson Is Even Less Competent Than Kevin McCarthy Was -- We’re now barreling toward a government shutdown and the House of Representatives is completely paralyzed.

U.S. GDP grew at a 5.2% rate in the third quarter, even stronger than first indicated (Darn Biden and his rotten economy /s)

A Texas Woman Goes Before School Board To Announce Porn Addiction Claim. She Blames the Scholastic Book Fair -- It turns out the woman may work for a conservative publishing company trying to take down Scholastic (Darned scholastic porn books /s)

Republicans Trip Over Their Own Assholes Trying to Take Down Hunter Biden 😮

Sarah Huckabee Sanders 🤪 appoints anti-LGBTQ+ Christian nationalist to oversee state libraries -- Jason Rapert recently called LGBTQ+ people a cult and a "devil of Hell."

Ah Sarah, what a patriot, full of charm and grace.

So, what did he say?

Oh, that’s what he said

News bits: The quadrillion dollar lawsuit; Law concepts; How close we came on 1/6

The Hill writes about a tax law case now pending before the USSC. This is another case that could gut the entire federal government if corrupt plutocrats win and get to protect their wealth from taxation. 

Supreme Court to consider ‘quadrillion-dollar question’ in major tax case

  

The Supreme Court will hear oral arguments in early December on a case that has the potential to broadly reshape the U.S. tax code and cost the government hundreds of billions of dollars in revenue.

At issue in Moore v. United States is the question of whether the federal government can tax certain types of “unrealized” gains, which are property like stocks or bonds that people own but from which they haven’t directly recouped the value, so they don’t have direct access to the money that the property is worth.

Large portions of the U.S. tax code require that income be “realized” before it can be taxed, but critics say it’s an inherently wishy-washy concept that courts have just been ignoring for years due to administrative impracticalities.

Even if the court limits the scope of its decision to the specific tax referenced in the case, known as the mandatory repatriation tax, a ruling in favor of the plaintiffs could cost $340 billion over the next decade, according to the Justice Department.

For comparison, that would cancel out all the extra revenue generated by the $80 billion IRS funding boost and then add $140 billion to the national deficit, which now stands between $26 and $33 trillion, according to various measurements.  “It’s the million-dollar question, just with a few more zeros: the quadrillion-dollar question,” Harvard University tax law professor Thomas Brennan told The Hill.

“On one extreme, if the Supreme Court decides that a realization requirement is present in the 16th Amendment … then there are a number of code sections that arguably would be invalid or have to be reworked,” he said.

These sections could involve partnership tax rules, rules on the taxation of debt and commodities, taxes on futures contracts and the international tax rules that string these areas together between countries.

“On the other extreme, even if the Supreme Court finds in favor of the taxpayers, they could do so in a narrow way that’s limited to the particular situation at hand, or in a way that … forecloses the possibility of Congress enacting wealth taxes but that doesn’t disturb much of existing tax law,” Brennan said.

This is another major front attack in America's authoritarian radical right war on government, taxes and regulations. If the plutocrats win big, a lot of power will flow from government and the people to rapacious elite brass knuckles capitalists and soulless corporations.

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A pre-trial filing by DJT in the government’s criminal insurrection case against him asks the court for leave to file subpoenas for more documents and information related to the 1/6 Committee. DJT calls the documents and information “Missing Materials.” In this case, the documents and information were never missing, but they were just not asked for by DJT in discovery. This appears to be a set-up for another issue for consideration on appeal in case DJT is found guilty. At this point, it seems he probably will be found guilty of something in this particular lawsuit.

This filing is under a rule called Pretrial Rule 17(c). The filing party asks for subpoena power to get more information, but not for the purpose of discovery and introduction at trial. The judge described it like this: 

“not intended to provide a means of discovery for criminal cases,” but rather “to expedite the trial by providing a time and place before trial for the inspection of subpoenaed materials.” Accordingly, Rule 17(c) subpoenas are not appropriate where the moving party seeks materials “procurable reasonably in advance of trial by exercise of due diligence,” or operate “as a general ‘fishing expedition.’ .... Courts must be careful that rule 17(c) is not turned into a broad discovery device, thereby undercutting the strict limitation of discovery in criminal cases found in Fed. R. Crim. P. 16.”

The party asking for subpoena power under 17(c) has to show three things about the requested information, (1) relevance, (2) admissibility, and (3) specificity. Here's how those three concepts are defined for this lawsuit.

Relevance: “The first prong of this test— relevance—requires the Court to assess whether the documents sought have ‘any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.’”

Admissibility: If relevant, then the court looks to the rules of evidence to see if the information is admissible in court. There are many rules, often with multiple exceptions making this a fact-intensive analysis.

Specificity: This prevents fishing expeditions in hopes of finding something useful when there is no particular reason to think something useful might be there. While it may sometimes be impossible to “describe fully” the materials being sought, “courts will not approve a subpoena for documents based upon requests for disclosure from broad categories of documents.”

Anyway, the judge rejected DJT’s request for subpoena power. Actually, the filing was a farce. Some of the requested information was already disclosed to DJT during discovery, while some of it did not even exist. For other information, the court could not analyze relevance because the requested information was a broad swath of material and the subpoena request did not bother to state what relevant information it was looking for, the court writing: “The relevance prong is not satisfied merely because a defendant can articulate what they hope to find in the subpoenaed evidence.” 

Finally, the judge rejected the rest of DJT’s Rule 17(c) filing like this: The broad scope of the records that Defendant seeks, and his vague description of their potential relevance, resemble less “a good faith effort to obtain identified evidence” than they do “a general ‘fishing expedition’ that attempts to use the [Rule 17(c) subpoena] as a discovery device.”

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Apparently new information being reported about DJT’s 1/6 coup attempt raises an issue I was unaware of (or forgot about), namely the possibility that Mike Pence would recuse himself from the counting of electoral votes in Congress. Without Pence, the count would have been stymied. Dog only knows what chaos that might have led to. 

Worse yet, the evidence indicates that Pence actually considered recusal, in part because it would be “too hurtful to my friend” for him to seal DJT’s loss of the 2020 election. This is stunning. Pence actually believed that DJT was his friend. What a self-deluded fool.  

Just as bad, Pence considered the feelings of his imaginary friend as a reason to back away from his constitutional duty. That’s beyond insane. Clearly, Pence as the VP of the US had no idea of what it actually meant to take the oath of office. Literally no idea. He thought that personal friendship, real or imagined, had some role to play. The arrogant self-centeredness and blind, stupid loyalty of these people to a proven monster is jaw dropping and terrifying. How gullible can these people be?

 

Finally, what got Pence to change his addled mind was a talk with his son, a Marine. In that family chat, Pence’s son had to remind his befuddled, clueless dad that he took an oath that imposed duties the office of the VP that had to be performed. For crying out loud! What if Pence’s son had been like the evil bone spurs himself or his morally rotted spawn Don Jr., Eric or Ivanka? Pence would have recused himself and let the 1/6 horror play itself out.

And despite all of this, there are still tens of millions of gullible Americans who will vote for DJT, thinking he is on their side, cares about them and will vindicate their grievances. The WaPo published this yesterday: 

ABC News reported Tuesday that on Christmas Eve 2020, Pence had momentarily decided against presiding, in part because it would be “too hurtful to my friend.” ABC also reported that Pence has testified that Trump personally suggested that he recuse. (The Washington Post has not independently confirmed the reporting.)

“Not feeling like I should attend electoral count,” Pence wrote in notes obtained by special counsel Jack Smith, according to ABC. “Too many questions, too many doubts, too hurtful to my friend. Therefore I’m not going to participate in certification of election.”  

Pence testified that he reversed course after a conversation with his son, who cited the vice president’s constitutional duty, according to ABC. The date of that conversation is not clear, but it came at some point during a trip that Pence took to Colorado, which records indicate lasted from Dec. 23 to Jan. 1.

So finally, Pence actually believed there were “too many questions, too many doubts,” which led him to want to recuse. What questions? What doubts? Stolen election? What a fucking gullible idiot Pence was and still is. Pence is the con man’s dream mark, gullible and dim-witted. This reporting indicates that he actually believed there was merit to the blatant stolen election lies the DJT dark free speech Leviathan was poisoning America with.

Our democracy and civil liberties hang by a thread.