July 19, 2024

Friday, July 19, 2024. Annette’s News Roundup.

Joe is always busy.

As we wait to hear whether our President, arguably at the top of American Presidents ever, will cancel his campaign,and name Kamala Harris as his successor, he keeps working for us.

Though he was sick with Covid, and isolating at his vacation home in Rehoboth Beach, Delaware, the President canceled another $1.2 billion in student debt, for 35,000 public service workers through Public Service Loan Forgiveness.

But this happened yesterday too.👇

Appeals Court Blocks Biden’s Student Loan Repayment Plan, Causing Uncertainty

Eight million borrowers who are enrolled in the plan, known as SAVE, are left in limbo after a series of rulings tied to two lawsuits brought by Republican-led states. (New York Times).

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Kamala is always busy.

Watch the Vice President in North Carolina yesterday. 👇

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New Biden-Harris Ad on Reproductive Rights.

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An appraisal of Judge Aileen Cannon’s dismissal of Trump’s Mar-a-Largo classified documents case with a time table for appeal.

On Monday, U.S. District Court Judge Aileen Cannon dismissed the classified documents case against former President Donald Trump, ruling that Special Counsel Jack Smith was improperly appointed.

Smith’s team charged Trump with illegally retaining classified material after leaving the White House, including national security documents, and obstructing efforts by the government to retrieve them. The case was seen by many as the strongest of the major criminal cases against the ex-president, who appointed Cannon. Smith plans to appeal the ruling.

W. Neil Eggleston served as counsel to President Obama and is now a lecturer at the Law School. He offered his analysis of the Cannon ruling and weighed what’s next in the case in a conversation that has been edited for clarity and length.

Cannon ruled that the special counsel was appointed improperly. What was her legal reasoning?

It’s a mashup of statutory analysis and two constitutional principles — the Appointments Clause and the Appropriations Clause. She looks at the provisions in the order appointing Smith that set forth the statutory basis for that appointment. She also looks at the statutes and concludes that the statutes do not authorize the attorney general to appoint a special counsel. She focuses on the fact that Smith was not a Department of Justice employee or officer at the time of the appointment — he was working at The Hague. It’s not clear to me why that matters, because today he’s a Department of Justice official. She infuses the analysis with lengthy discussions of the Appointments Clause and the Appropriations Clause.

How would you characterize the decision?

In my view, her reading of the statutory provisions is quite stingy. Two other district courts and the D.C. Circuit have considered this issue — the legality of the special counsel — and they have all rejected it. Cannon is the only judge to find the appointment invalid. The D.C. Circuit has twice rejected a challenge to the use of special counsels — during the Iran-Contra investigation and during Special Counsel Robert Mueller’s probe of Trump. Judge Dabney Friedrich of the District Court in D.C., who is a Trump appointee, tossed aside a similar challenge without a lot of effort in a fairly short opinion in a case involving Mueller, who oversaw the investigation into Russian interference in the 2016 election. Judge T.S. Ellis of the Eastern District of Virginia similarly tossed this issue aside in a case that also involved Mueller. So, the other courts that have looked at this issue have had no trouble with it and have ruled contrary to Cannon.

“I’ve never seen a district court conclude that a portion of a Supreme Court opinion is not binding; that was a first for me.”

What are the regulations under which special counsels are appointed?

Special counsels have been around for decades. From the 1970s until the late ’90s there was the independent counsel statute, which provided for a much more independent special prosecutor than what Attorney General [Merrick] Garland authorized in this matter. The Supreme Court upheld the statute in Morrison v. Olson, but it expired in 1999. After its expiration, DOJ implemented its own regulations providing for the appointment of special counsels who possess functions similar to U.S. attorneys. In 2020, in an Appointments Clause case involving the Consumer Financial Protection Bureau, the Supreme Court essentially reaffirmed Morrison v. Olson as a valid exception to a general rule about appointments.

What surprised you most about the decision?

One very surprising thing is how Cannon deals with the Supreme Court precedent in United States v. Nixon.

There’s a sentence in that 9-0 opinion which resolves this issue entirely. The sentence says that Archibald Cox, who was one of the prosecutors of Nixon, was appropriately appointed pursuant to the statute. And you would have thought that would have ended this inquiry.

Cannon does something I think I’ve never seen a district judge do before, which is that she looks into the history of the Nixon case, decides the issue wasn’t particularly briefed, and as a result determines that a sentence in a Supreme Court opinion that was decided 9-0 was, in fact, “dicta,” which means that it is not binding in subsequent cases as legal precedent. And as a result, she as a district judge was entitled to disregard it.

I’ve never seen a district court conclude that a portion of a Supreme Court opinion is not binding; that was a first for me.

In my seminar at Harvard Law School, I teach that portion of the Nixon opinion, and the beginning of it is essentially whether the matter is justiciable and whether the case is properly in the court, partially because it’s an intra-branch fight — it’s two parts of the executive branch that are litigating against each other.

It was important to the court to point out that the special counsel was validly appointed and validly in the court, because if they thought he had not been, then the matter would not have been justiciable. The entire first part of the Nixon opinion is really about justiciability.

Cannon was appointed by Trump in 2020. Some observers say that judges shouldn’t be allowed to rule on the person who appointed them. What is your opinion?

That does not trouble me at all. Presidents appoint a lot of judges who then go off and make all sorts of decisions. This comes up in the administrative law context all the time, where district judges and appeals judges must rule on presidential policies. I don’t think most people think that the fact that they’ve been nominated by the person whose policy they’re now reviewing creates an appearance of impropriety. There is a lot of criticism about the way Cannon was handling the matter. I would not go so far as to say that she should not have taken the matter due to an appearance of impropriety.

Smith has said that he’s going to appeal. Can you talk about his likely strategy and whether the case might end up before the Supreme Court?

Smith’s appeal is going to be based on the issues we’re talking about. He’ll say that the judge’s reading of the authorizing statutes is wrong, and that in fact, the attorney general is entitled to appoint non-DOJ personnel to be special counsel. That’ll be the principal argument.

Smith will also argue that the infused atmosphere of the Appointments Clause and the Appropriations Clause really has no place in the discussion.

It’s a question of whether the statute permits it or doesn’t permit it. He’ll also raise the notion that essentially Nixon has already decided this case.

An appeal in the 11th Circuit would take roughly a year to decide.

If Trump is elected president, after his inauguration he will certainly order the Department of Justice to dismiss the federal cases against him. The Department of Justice would then dismiss those cases and there would not be an appeal.

If Trump is not elected, there’s a strong chance that the 11th Circuit will reverse Cannon’s decision.

Whichever way the 11th Circuit ruled, I suspect the issues would then be decided in the Supreme Court. I’m not going to predict what the Supreme Court would do.

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Dan Rather assesses MAGA’s Convention. (Harvard Gazette).

Selective Memory in Milwaukee

Donald Trump’s repugnant record is MIA at the RNC.

At their convention in Milwaukee, Republicans see themselves as celebrating what they are convinced is going to be not only a win in November, but an overwhelming one. Among delegates and others on the convention floor and around the hall, there is much chatter about an “avalanche” building.

This, as they have nominated for president a man who tried to overthrow our government.

Their hope is that a majority of voters will simply forget all Donald Trump has done to help himself and hurt this country. That strikes many Americans as falling in the narrow space between revolting and appalling.

And my goodness, the lies are flying fast and furious at the Republican fantasy convention. This glitzed-up affair is full of speeches that don’t even come close to the truth. Here’s how bad it is: Some major news organizations (although unfortunately not all) are fact-checking the speeches live, calling out the lies in real time.

But it’s more than that. Republicans must believe Americans are in a mood to forgive and forget. To forgive the insurrection of January 6 and forget the fact that the former president kept top-secret documents strewn about Mar-a-Lago like last month’s junk mail, among many other indiscretions.

How much airtime and how many column inches will be devoted this week to what the previous president has done to harm our democracy? My guess is almost none. Instead there will be a celebration, one devoid of context. It will be an anointing without proper perspective and analysis. And there will be misleading speech after misleading speech.

Tip of the Stetson to The Washington Post and The New York Times, whose fact-checkers are calling out a myriad of false claims. MSNBC is doing the same in real time. CNN is airing a fact-checking segment after the convention coverage. Unsurprisingly, Fox “News” is airing live speeches unchallenged and unchecked.

So far, the speeches have been riddled with stunning yet emphatically stated lies. Trump, the liar-in-chief, is getting a run for his money in the telling of tales. Over two days, the Post’s fact-checkers have found that convention speakers have made false claims about border crossings, gas prices, fentanyl, tax cuts, Vice President Kamala Harris, peace during Trump’s presidency, voting by migrants, energy independence, the relative wealth of young Americans, and Easter Sunday.

The lies and misinformation are meant to rile and to scare. Texas Senator Ted Cruz actually said this out loud from the convention podium: “Americans are dying, murdered, assaulted, raped by illegal immigrants that the Democrats have released.”

And then there’s the old chestnut, election denialism. According to the Post, 62 convention speakers have previously questioned President Biden’s 2020 election win.

Nikki Haley and Ron DeSantis have capitulated, forgiving Trump for his miserable and untruthful treatment of them when they were running against him. They both gave speeches endorsing him on Tuesday night.

And don’t forget House Speaker Mike Johnson’s claim that the Republican Party is “the law and order team,” as it nominates a convicted felon.

It is no secret that the political nominating conventions lost their significance decades ago. Today, they are nothing more than hour upon hour of campaign advertising, which makes them a great place to court undecided voters. This MAGA convention will be hard-pressed to appeal to middle-of-the-roaders. Republicans can no longer claim to be the party of Lincoln or even of Reagan. It is wholly the party of Trump and his MAGA extremist followers. Their newly anointed vice presidential candidate, JD Vance, is even more extreme on issues like gun control and abortion than Trump.

Vance and the convention speakers are talking some about America’s need for unity, and that’s good, if they actually mean it. But after only two days, they seem to have abandoned the calls for unity and reverted back to the MAGA talking points. Against the backdrop of Republicans celebrating in Milwaukee, let’s hope that most of the rest of the country gives itself a gut check on Trump’s record and the reality of what his victory in November would mean. (Dan Rather and Team Steady).

One more thing. Or two.

Just fleshing out what the Roundup reported yesterday.

Another member of Team Trump probably missed the Boss’s speech last night.

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The more we learn about Vance, Trump’s Heir Apparent, the angrier we get.

Vance may only be 39 but he wants the 1873 Comstock Act to be the law of the land.

Vance urged DOJ to enforce Comstock Act, crack down on abortion pills
 in a January 2023 letter to Attorney General Merrick Garland

A Lie that belongs to J.D. Vance alone.

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MAGA Misogyny rears its ugly head.

Though Kimberly Cheatle, the director of the Secret Service has yet to speak to Congress, Speaker Mike Johnson has already called for the woman who heads the Secret Service to be fired.

All the President’s Women

Women have been protecting US Presidents since the 1970s.

The day after former President Trump was shot at a Pennsylvania campaign rally, President Biden called for a review of security measures that allowed an armed man to evade both local police and the Secret Service and climb on top of a nearby rooftop. The Department of Homeland Security and at least six congressional committees announced open investigations. Some people, however, have already decided who was at fault.

There should not be any women in the Secret Service,” the right-wing commentator Matt Walsh posted on X shortly after news of the assassination attempt broke. “These are supposed to be the very best, and none of the very best at this job are women.”

“When you primarily go after D-E-I, you end up with D-I-E,” Florida Representative Cory Mills, a military veteran, quipped on Fox News, referring to the acronym for diversity, inclusion and equity policies.

“DEI hire??” Chaya Raichik, the right-wing influencer behind the social media account Libs of TikTok, posted on X in response to a video of a female agent from the Pittsburgh field office struggling to holster her gun. She later claimed, “DEI got someone killed.”

“That’s absurd. We’ve been around for over 50 years,” said Sue Ann Baker, who in 1971 became one of the first five female special agents in the Secret Service.

“These people have no idea what they’re talking about,” added Beth Celestini, a retired special agent who spent 20 years in the Secret Service, working on both President Bush and Obama’s security details. “I’ve done every assignment that a man would have been chosen for.”

That’s not because of a new policy, DEI or otherwise. Women have been protecting US Presidents since the 1970s. “I don’t treat women agents any differently from men,” Charles Gittens, then head of the Secret Service’s Washington DC field office, told the Austin American Statesman in 1976. “They’re just as tough as men.”

Clint Hill, a retired Secret Service special agent who served under five US presidents from Eisenhower to Ford and was in the motorcade when President Kennedy was assassinated in Dallas (he’s the agent who jumped onto the back of the limousine) said he pushed the Secret Service to hire women.

“It was a necessity to have women,” said Hill, who by the early 1970s had become deputy assistant director of presidential protective forces. “They could go places men could not. Women’s restrooms, for example.” He also assigned women to undercover teams and on fraud investigations.

“In some instances, coming out of firearms training, some women were better shots than men,” Hill added. “One woman in particular was at the top of her class.”

Some critics expressed their disdain for female agents as a question of practicality. “You need to be taller than the candidate to protect them with your body. Why do they have these short women...guarding Trump?” Meghan McCain, daughter of the late Senator John McCain, said on X.

“I was the special agent in charge of Lyndon Johnson in 1967 until he left office in 1969 and I’m about 5 inches shorter than Lyndon Johnson was,” Hill said. “I don’t remember that ever being something that was discussed.” Hill said that an agent’s size had nothing to do with whether they were able to do their job. The special agent in charge of President Bill Clinton, Lewis Merletti, was also several inches shorter than the President. (Merletti later became director of the Secret Service.)

Central to the conservatives’ ire is that Kimberly Cheatle, the director of the Secret Service, has pledged to increase the presence of female agents to 30% by 2030. Currently, 24% of Secret Service employees are women, although not all of them are assigned to protective duty.

For some people, a few women is still too many. “This DEI situation that Biden has put into place and the leader of the Secret Service wanting to see 30% women,” Tennessee Representative Tim Burchett told Forbes. “The secret service needs to clean house.”

Cheatle herself faces heavy criticism, with Burchett referring to her as “a DEI initiative person.” She first joined the Secret Service in 1995 and spent nearly three decades working as a special agent, training other special agents, overseeing the Atlanta field office, and serving as assistant director of protective operations. She also served on President Biden’s security detail when he was vice president. “This is what happens when you don’t put the best players in,” Burchett said.

“It is an insult to the women of our agency to imply that they are unqualified based on gender,” Anthony Guglielmi, chief of communications for the Secret Service, said in a statement. “Our commitment to diversity, equity and inclusion ensures that we attract the best talent, fostering a robust and effective team that reflects the society we serve.”

Celestini, who got pregnant and gave birth while on Obama’s security detail, said the characterization of the Secret Service as a bastion of DEI-inspired gender equality was “ridiculous.” When she returned to work after having her daughter in 2010, she had to figure out how to pump breastmilk during the same brief breaks her male colleagues got. “It’s not like they’re bending over backwards to accommodate us,” she said.

Donald Mihalek, a retired senior special agent who also spent 20 years in the Secret Service, agrees.

“I’ve worked with women my entire professional career—in the military, police, Secret Service. Women aren’t new to these professions,” said Mihalek. “For anybody to impugn the dedication and the willingness to risk their life of any of the agents with President Trump that day is pathetic. Especially based on how they look? Come on.”

It’s not clear that having an all-male Secret Service crew at the rally would have changed anything. Most of the officers and agents on hand at the rally were men. According to the Butler County Sheriff, the police officer who confronted the shooter on the roof and then retreated was also a man. In fact, Donald Trump’s son Eric defended the female agent who was on stage with his father. “She would take a bullet for me. She would take a bullet for him. As courageous as they come,” he said on CNN.

Hill says that while he isn’t surprised that women are being blamed—at 92, he’s learned to expect that sort of thing—he’s appalled that some of their critics are sitting members of Congress. “I’d like to have some of these men, these critics who are so negative, walk in the shoes of some of these women,” he said. “They wouldn’t be able to do it.” (Bloomberg Equality).

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Some smart levity? Much needed these days.

Bette Midler commented on the Supreme Court in song.👇

Smile.

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Your Daily Reminder.

Trump is a convicted felon.

On May 30th, he was found guilty on 34 felony counts by the unanimous vote of 12 ordinary citizens.

The Convicted Felon Donald J. Trump was scheduled to be sentenced on July 11. He will now be sentenced sometime around September 18th.

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