The Follow Up

How yesterday's unanswered questions turned out

Just a catch up, to give you some closure from last night’s post:

In the slush fund case, Judge Brinkema in the Eastern District of Columbia aligned with the spate of federal district judges, who, in recent weeks, have shown they are disinclined to trust the government. She held that the government failed to show with “absolute certainty” that it wouldn’t return to its plans for the slush fund in the future. She entered a preliminary injunction that blocks the fund Trump wanted to use to reward his January 6 supporters and other allies from going into operation.

The government had argued that the case challenging the fund was moot. But the Judge confronted DOJ lawyers with Trump’s ongoing praise of the idea. She was also underwhelmed by the fact that Todd Blanche wasn’t willing to confirm under penalty of perjury that the slush fund was off. Judge Brinkema has given the administration one week to submit a sworn statement, attested to by both the Attorney General and the Secretary of the Treasury, that the slush fund is done as a condition of removing the injunction.

A wise man once told me that DOJ’s integrity is more important than winning any one case and that the public’s confidence in us was like a balloon you filled up with water slowly. One tiny prick and all that water would run out. It was unthinkable back then that we could ever lose the courts’ confidence. But this is a Justice Department that behaves like no other and has worked hard to get the courts to abandon the “presumption of regularity” that cloaked DOJ employees with the benefit of the doubt that their behavior complied with ethics rules in the absence of some evidence to the contrary. We are close to the point where DOJ will have to constantly prove its trustworthiness to the courts, and that’s going to be hard on prosecutors across the country who aren’t part of the political agenda at DOJ, but are simply trying to do their jobs and keep their communities safe.

The cage fights are on. As we predicted it might, it was the technical legal issue, standing, that doomed the plaintiffs’ request to keep the administration from holding a UFC fighting event on the South Lawn of the White House. In a fifteen-page order that you can read here, Judge Amit Mehta held that the chief reason was an inability to show standing.

He explained that the test for standing has three elements and plaintiffs must satisfy all of them:

(1) “an injury in fact—an invasion of a legally protected interest which is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical”;

(2) “a causal connection between the injury and the conduct complained of,” in that the injury must be “fairly traceable” to Defendants’ conduct; and

(3) “redress[ability] by a favorable decision.”

He concluded that the plaintiffs could not establish the first prong of the test because while an “aesthetic” injury (i.e. enjoyment of one of the monument sites that are impacted, like the Lincoln Memorial and the Vietnam Memorial) can suffice, “a ‘generalized grievance’ is not enough,” and plaintiffs’ injury must be “more than ‘mere incidental viewership of something unappealing.’” While the plaintiffs made other standing arguments, Judge Mehta rejected all of them as well. He also concluded that their lengthy delay—he called it “unreasonable”—in filing suit, “though not dispositive, undercuts their claims of irreparable harm,” which plaintiffs have to establish to be entitled to an injunction.

So the cage fights, with the advertising, the grifting, the desecration of the Lincoln Memorial, they’re on. Happy Birthday, Mr. President. You get your wish, and your share of the profits.

A little new, disturbing news from Ohio yesterday. Trump’s DOJ seems to have learned the wrong lesson from the pushback to its indictment of the Southern Poverty Law Center, a well-resourced national civil rights group that does pro-voting work and enjoys broad support in the civil rights community. Apparently intent on avoiding a repeat of that situation, in which the DOJ has been widely criticized for bringing such a marginal case, FBI agents yesterday executed a search of the Cleveland office of a group called the Ohio Organizing Collaborative, which works to register Ohio voters. The group is obviously far lower profile than the SPLC, but the same effort to intimidate is evident.

In addition to the offices, agents went to the homes of not only the organization’s leaders but members of its staff. They had subpoenas (these are cut by the local U.S. Attorney’s office, and do not require a judge’s sign off) and, according to reporting, were also “seeking information and electronic devices.” A board member called it “Just straight-up intimidation tactics.”

This is a deeply disturbing development. Ohio may be the first place the administration tries out this tactic against groups that help Americans vote, but it’s unlikely to be the last. The message is clear: If you help Americans this administration thinks will vote for Democrats lawfully exercise their right to vote, the government will throw its might at you. Prepare for the worst.

Presidents who believe in democracy don’t try to keep voters from voting. They work hard to win their votes. Trying to frighten people and keep them from exercising their rights is the work of an autocrat.

And, as we enter the weekend, many Americans are watching the various livestreams that are up so we can all watch the removal of Donald Trump’s name from the Kennedy Center. This, after Judge Christopher Cooper denied the administration’s request to stay his order that requires the removal to be done today. The MSNOW livestream is here.

In a minute order entered on the docket earlier today, Judge Cooper held that Trump isn’t entitled to an injunction because even if he were to win on appeal, he could simply restore his name, so there is no “irreparable injury” from the order, which Trump would have to show in order to win an injunction. Trump will certainly head to the Court of Appeals, but, as we’ve discussed, tick tock. The court’s order stands, unless and until a higher court tells Trump he doesn’t have to take his name down.

This is what Civil Discourse is about. Up-to-date. Up-to-speed. The best defense is knowledge and we’re all about that. Thanks for being here with me, and for your support, which makes the newsletter possible.

We’re in this together,

Joyce