The Week Ahead
Sunday, October 9, 2022
If the news these days feels to you like multiple ping-pong matches going on at the same time, you’re not wrong.
First up this week:
Mar-a-Lago Mash Up
DOJ has been given a Tuesday, 5pm ET deadline to respond to Trump’s Supreme Court challenge. You’ll recall this is a technical legal issue Trump’s team has raised, arguing that the 11th Circuit lacked the authority to issue its order in the case. That order kept Judge Cannon from prohibiting DOJ from using the 100+ classified documents retrieved from Mar-a-Lago in its criminal investigation and national security review. Trump hopes the Supreme Court will tell DOJ they can’t use the documents, at least until the special master’s review is complete—which currently looks like late December. Judge Cannon rejected Judge Dearie’s faster timeline in favor of one that reflected the Trump camp’s request.
It’s messy.
Trump’s argument in the Supreme Court is one of the more interesting legal arguments he’s made in court to date, but it’s still due to fail. The gist of it is that the 11th Circuit didn’t have jurisdiction to decide DOJ’s appeal, because it was too soon to appeal Judge Cannon’s order. The 11th Circuit tried to head the argument off in their opinion, explaining in a footnote that they had jurisdiction and alternatively, the issues were inextricably intertwined with other appealable matters, which mean they could decide them all together now. So that’s where we are on the limited issue of DOJ’s ability to use the classified documents, which Trump has now take to the Supreme Court.
But in the meantime, the 11th Circuit has granted DOJ’s motion to expedite its appeal of Judge Cannon’s full order, which involves whether she can prohibit DOJ from using all of the documents seized at Mar-a-Lago (not just the classified ones), and whether she was correct to grant Trump’s motion to appoint a special master. The government’s opening brief is now due this coming Friday. Trump will have until November 10 to respond, about a week less than he would have on a normal briefing schedule, and the government must file its reply brief by November 17. Once the briefs are in, the order makes it sound like the case will be set for oral argument, assigned to a special panel pulled from the court’s classified appeals log, which means the case can be heard quickly without waiting for the court’s next schedule session with room for an additional case. While this briefing schedule may seem lengthy, it’s lightening speed for a court of appeals, conveying some sense that the Eleventh Circuit appreciates the moment.
It’s not entirely clear how the two appeals will intersect. The worst case is that the Supreme Court could grant Trump’s motion, terminate the 11th Circuit appeal, and return the matter to Judge Cannon, foreclosing any further use of seized material from Mar-a-Lago by DOJ at least until she rules. But this seems unlikely. Trump’s position lacks merit legally and interferes in a criminal investigation in a way the Court is unlikely to want to establish as precedent, all while our national security hangs in the balance.
Trump’s application was made to Justice Thomas, in his role as Circuit Justice for the 11th Circuit, so in the first instance, he directs the motion. I think it’s unlikely he, acting alone, will grant it. I’m assuming there’s still some desire to hang on to whatever remains of the public’s confidence in the Court. That means Justice Thomas can dismiss the appeal or refer it to the full Court, which could dispose of it without hearing the appeal. The later option seems more likely than shutting down DOJ’s criminal investigation and putting the matter on the Court’s docket for briefing on the merits and oral argument this term. But we’ll see.
Beyond the ongoing litigation, expect more this week on the reporting that DOJ thinks Trump may have additional documents in his possession. Keep in mind that in order to get a search warrant, DOJ must present a judge with probable cause to believe that either evidence of or fruits of a crime will be found in a specific location to be searched. That would explain why DOJ is reportedly questioning witnesses about what Trump kept at his Bedminster and Trump Towers offices. Other reporting that gained momentum over the weekend suggested that Trump wanted to try and trade the classified documents in his possession for documents that he believed the National Archives had that would establish some rigamarole about the deep state’s complicity in investigating Trump’s Russia connection.
Extortion-y.
Right? Not even Trump’s minions were foolish enough to raise the “deal” with government officials, but, along with reporting Trump packed up boxes himself, it goes a long way towards establishing Trump knew what he had and knew he wasn’t entitled to have it. And all of this makes it still more likely that DOJ is going to have to prosecute the former president, whether it wants to or not, unless it wants to let the rule of law die on its watch.
Future Supreme Court Match Up: Abortion v. Religious Rights
Not everyone believes abortion is wrong. For example, under Jewish law, life does not begin at conception and the health of the mother must come first in certain cases.
This issue will end up at SCOTUS at some point. The new uber-conservative, post-Trump Court has been quick to continue the march to prioritize Christian beliefs in the face of other people’s civil rights. It’s far less clear whether that same deference extends to Jews, Muslims, Hindu, Sikhs, Buddhists and so on.
What happens when the right to religious exercise possessed by members of these other religions bumps heads with sacred cow of conservatives, ending access to abortion? It would be hypocritical to say Jews don’t have the same rights to exercise their religious beliefs like Christians do. But it’s hard not to smell hypocrisy in the air, and it’s coming from the Court. Whether it’s this case or one of the other similar challenges wending its way through the courts in Florida and Indiana, this issue is coming.
It’s always been clear that at some point we’d learn whether SCOTUS is committed to protecting non-Christian religious freedoms with the same insistence it protects Christian beliefs. I’ve never been optimistic and I won’t be here. But courts will have to contort themselves to distinguish rulings like the one in the Masterpiece Cake case, where the Court permitted Christian’s to exercise their religious beliefs, even if that meant discriminating against gay people. That’s down the road, but it will be important to follow the cases raising this issue as they move forward.
These cases arise in the context of a GOP that seems to be noticeably uninterested in protecting the rights of Jewish people, at least if their ongoing romance with Kanye West is any measure. West tweeted over the weekend that he’d be going “def con 3” on JEWISH PEOPLE (his caps, not mine), leading to a lot of Jewish outrage and virtual silence from the Republican Party, which left this tweet from two days earlier in place, despite calls to take it down in light of Kanye’s anti-Semitism.
January 6 Committee Finale
The last January 6 committee hearing, absent another last-minute cancellation, will take place Thursday afternoon. It’s still not happening in prime time, but networks like MSNBC will rerun it then.
I’m optimistic this will be the energy the country needs heading into the midterms, which are now less than 30 days away. Maryland Representative Jamie Raskin said over the weekend that the names Michael Flynn and Roger Stone come up so often in the committee’s discussions, that they've begun calling them "The Flynnstones." Does this mean we’ll learn more about the pair’s work in the Willard war rooms or their connection to the Proud Boys and the Oath Keepers, the two white supremacist groups charged with seditious conspiracy? Word is that the committee has a few last surprises up its sleeves along with a summation of its work.
Alabama’s Bad Choice for the Senate
Finally, I want to say a word about calling out racism. I would not have thought we would still need to do this in 2022, but of course, here we are. So, along with others, I called out Alabama’s junior senator and former Auburn football coach Tommy Tuberville when he equated black people who seek restorative justice for slavery with “criminals” at a Trump rally in a Nevada airport on Saturday. I’m making it sound nicer than it was. You should listen for yourself.
Even for a Trump-Republican, Tuberville went awfully far in saying the quiet part out loud. But a story on al.com (Alabama’s replacement for the two daily newspapers Birmingham used to have), incredibly, focused on a Black legislator who criticized Tuberville, instead of on the Senator himself. Alabama Democratic legislator Chris England used the same language as Tuberville, saying, “There is some bullshit here but it isn’t what @TTuberville thinks it is. The bullshit is that this guy is a United States Senator in the first place.”
Al.com made England’s comment the headline, apparently, more concerned that England used the word “bullshit” than they were about Tuberville’s racism. Shortly after I flagged the story on Twitter, it mysteriously disappeared from al.com. The story is back up, but seems to have undergone several edits, with more of Tuberville’s language, but still leading with the implied criticism of Representative England.
The story, in its original version at least, offered an excuse for Tuberville, via Nebraska GOP representative Don Bacon, who discussed the comments on Meet the Press Sunday morning. Apparently, a Nebraskan who few if any Alabama Republicans have heard of, was the relevant authority on interpreting Tuberville: “Bacon said that he ‘wouldn’t say it the same way,’ but ‘there is a problem in our country with crime.’ He blamed ‘far-left prosecutors, county attorneys, and mayors who are releasing violent criminals back on the street.’” Oh c’mon.
“When pressed to answer if Tuberville’s comments were racist, Bacon said, ‘We gotta be honest we have a crime problem in our country.’”
So, Bacon doubled down, before delivering his coup de grace, an appeal to better manners: “I’m not going to say he’s being racist but I wouldn’t use that language,” he said, adding Tuberville should “be more polite.”
Got it? Racists should be more polite, but if you’re a black politician in Alabama, expect full-on criticism for a response in kind. Meantime, I’ve seen nothing from Alabama’s governor, Congressional delegation, other elected and GOP party leaders, retired judges and so forth. It’s like it didn’t happen.
You can’t ignore racism and expect it to get better. If the times we live in are any measure it only gets worse if you let people get away with it. Democracy and racism are both on the ballot in November, in the most stark fashion possible. And it’s going to be up to us to make sure they lose. Tuberville isn’t on the ballot but a lot of people who are unworthy to represent the American people are. We can help others in our community sort out who the election deniers and white supremacists running in state and local races are. They should be identified, preferably using their own words, as Tuberville was here. Let voters see the facts and decide for themselves.
Consider knocking on some doors and registering some voters. There are post card-writing campaigns underway, as well as phone banks. And some of the discussions that will count the most will be one-on-one conversations with friends, neighbors, folks we run into at the grocery store or over morning coffee, and so on. Talk with people about how you view the issues and the candidates. Engage in civil discourse. It really is important.
We’re in this together,
Joyce
Thank you Joyce! I registered my first new voter today - he just became a citizen! If we all do a little bit more, hopefully we will prevail.
Thank you, Joyce, for writing this and keeping us informed.