US Politics

A group of 18 legal academics has issued an extraordinary joint letter urging the US supreme court justice Stephen Breyer to retire so that Joe Biden can name his successor.The intervention came after Mitch McConnell, the Republican minority leader in the Senate, warned that Biden would not get a supreme court nominee confirmed in 2024 if Republicans regain control of the chamber and a vacancy arises.With conservatives holding a 6-3 majority on the court, progressive activists have been calling for the liberal Breyer, who at 82 is the oldest member on the bench, to step down this year while Democrats narrowly control the Senate.“It is time for Supreme Court Justice Stephen Breyer to announce his intent to retire,” the legal scholars say in a statement. “Breyer is a remarkable jurist, but with future control of a closely divided Senate uncertain, it is best for the country that President Biden have the opportunity to nominate a successor without delay.”The signatories include Niko Bowie of Harvard Law School, Erwin Chemerinsky and David Singh Grewal of the University of California, Berkeley, School of Law; Daniel Morales of the University of Houston Law Center; Samuel Moyn of Yale Law School, Zephyr Teachout of Fordham University; and Miranda Yaver of Oberlin College.The statement was released by Demand Justice, a progressive group mounting a concerted campaign to make Breyer consider his position, with everything from reproductive rights to voting rights and gun control potentially at stake.This week it is among 13 liberal groups, including Black Lives Matter, the Sunrise Movement and Women’s March, publishing an advertisement in prominent media outlets. It says: “Supreme Court Justice Stephen Breyer should immediately announce his intent to retire from the bench.“With future control of a closely divided Senate uncertain, President Biden must have the opportunity to nominate a successor without delay and fulfill his pledge to put the first Black woman on the Supreme Court.”The ad concludes: “If Breyer were replaced by an additional ultra-conservative justice, an even further-right Supreme Court would leave our democracy and the rights of marginalized communities at even greater risk. For the good of the country, now is the time to step aside.”While serving as majority leader, McConnell blocked Barack Obama from filling a vacancy left by the death of the conservative justice Antonin Scalia in February 2016, contending that it would be inappropriate to confirm a supreme court nominee during a presidential election year.McConnell and his fellow Senate Republicans refused to consider Obama’s nominee, Merrick Garland, who now serves as Biden’s attorney general. That enabled Donald Trump, the winner of the November 2016 election, to appoint the conservative justice Neil Gorsuch in 2017.Democrats accused McConnell of hypocrisy last year when he allowed the Senate to confirm Trump’s conservative nominee Amy Coney Barrett to replace the liberal justice Ruth Bader Ginsburg, who died in September, about six weeks before the 2020 presidential election.Christopher Kang, co-founder and chief counsel of Demand Justice, told the Guardian’s Politics Weekly Extra podcast: “I think certainly that looking back, and even at the time, a lot of people thought that the prudent thing for Justice Ginsburg to do to ensure her legacy would have been to retire.“I think this is the same conversation that a lot of progressives are having right now with respect to Justice Breyer, who is one of those three Democratic-appointed justices on the supreme court. He’s 82 years old. He could retire and we believe he should retire now and make way for the first Black woman to serve on the supreme court.Kang, who served in the Obama White House, added: “But it’s challenging because supreme court justices are nominated right now for life and the decision when to retire is completely up to them.“I was not part of the decision-making process at the time with respect to whether or not to reach out to Justice Ginsburg. I understand that the White House chose at the time not to do that but I think certainly looking at the impact of what happened, we could be in a very different place.” More

Top Republicans are moving to block a Senate inquiry into the Trump justice department’s secret seizure of data from Democrats to hunt down leaks of classified information, fearing a close investigation could damage the former president.Trump, who is facing a mounting crisis of legal problems and political criticism, still wields huge power among Republicans, and has hinted recently at a return run for the White House.In fiery remarks, the Republican Senate minority leader, Mitch McConnell, criticized the rapidly expanding congressional inquiries as unnecessary and accused Democrats of embarking on “politically motivated investigations”.“I am confident that the existing inquiry will uncover the truth,” said McConnell. “There is no need for a partisan circus here in Congress.”The forceful pushback from McConnell shows his alarm about the latest aggressive move by Democrats to engage in retrospective oversight that could expose Trump for misusing the vast power of the federal government to pursue his political enemies.It also means Republicans are certain to lock arms to block subpoenas against Trump justice department officials, including former attorneys general Bill Barr and Jeff Sessions. Democrats need at least one Republican member for subpoenas because of the even split between Democrats and Republicans on the panel.Chuck Grassley, the top Republican on the Senate judiciary committee, suggested he would offer no such support. “Investigations into members of Congress and staff are nothing new, especially for classified leaks,” he said.The Republican criticism came as Democrats have stepped up investigations into the justice department for secretly seizing in 2018 data belonging to two Democrats on the House intelligence committee – and some of Trump’s fiercest critics.In the Senate, the judiciary committee chair, Dick Durbin, demanded in a letter that the attorney general, Merrick Garland, deliver a briefing and respond to a raft of questions into the seizures by 28 June. And the House judiciary committee chair, Jerry Nadler, said his panel would launch an investigation into the “coordinated effort by the Trump administration to target President Trump’s political opposition” as he weighed hauling in Barr and Sessions.The parallel investigations showed Democrats’ determination to seize the momentum, even as Republicans started rallying in opposition – for largely the same reasons that governed their motivation to sink a 9/11-style commission to examine the Capitol attack.Democrats also said that they would press ahead with their investigations concurrently with the justice department inspector general, Michael Horowitz, whose office last week opened a separate inquiry.“I do think there has to be a congressional role to supplement whatever DoJ doesn’t turn over,” the congressman Eric Swalwell, one of the two House Democrats who had his records seized, told the Guardian.But in only requesting Garland’s appearance before the Senate judiciary committee – and not Barr or Sessions – Democrats revealed the power Senate Republicans wield to obstruct measures they fear could anger Trump and his base ahead of the 2022 midterm elections.The political roadblocks being laid down by Senate Republicans mean the most meaningful congressional investigation into the Trump justice department targeting Democrats is likely to come from the House judiciary committee.On account of Democrats’ majority in the House, Nadler does not suffer from the same problems besetting his colleagues in the Senate, and retains the ability to subpoena Barr and Sessions without Republican support.The judiciary committee did not outline concrete steps for their investigation. But Nadler intends to keep the threat of subpoenas hanging over the Trump attorneys general as he ratchets up pressure over the coming weeks, said a source familiar with the matter.The twin investigations by House and Senate Democrats follow the referral from the deputy attorney general, Lisa Mascaro, to the inspector general to launch a review, according to a senior justice department official.The inspector general probe came after the New York Times reported that the Trump administration used grand jury subpoenas to force Apple and one other service provider to turn over data tied to Democrats on the House intelligence committee.Although investigations into leaks of classified information are routine, the use of subpoenas to extract data on accounts belonging to serving members of Congress is near-unprecedented outside corruption investigations.Justice department investigators gained access to, among others, the records of Adam Schiff, then the top Democrat on the House intelligence committee and now its chairman; Swalwell; and the family members of lawmakers and aides. More

A crew of conservative lawyers still pushing disinformation that echoes Donald Trump’s false claim that the election was rigged are now battling federal inquiries, defamation lawsuits and bar association scrutiny that threaten to cripple their legal careers.Former justice department officials say Trump’s legal loyalists are weakening trust in the American electoral system via persistent repetition of his baseless claims. They note that some are actively backing Republican drives in key states to change election laws seen as undermining voting rights for communities of color.Take Sidney Powell, a pro-Trump conspiracy promoter and ex-federal prosecutor.After a short stint on Trump’s legal team last December, where she made wild claims about election fraud due to a voting machine company’s alleged ties to Venezuela, which sparked a $1.3bn defamation lawsuit against her, Powell in late May drew ridicule for telling a Dallas QAnon meeting that Trump could be “reinstated” this summer.There is also election law veteran Cleta Mitchell, who was on Trump’s infamous January call with Georgia’s secretary of state, Brad Raffensperger, where Trump urged him to “find” 11,000-plus votes to block Joe Biden’s win. Mitchell is now leading a $10m FreedomWorks drive in seven states to tighten election laws in ways that are seen as crimping voting rights.Trump’s high-pressure call led the Fulton county district attorney to open a criminal inquiry.Meanwhile, Atlanta lawyer L Lin Wood, who worked with Powell in Georgia in a failed drive to reverse Biden’s win by filing baseless lawsuits alleging fraud, told Talking Points Memo he donated $50,000 to help fund a bizarre vote “audit” in Arizona’s largest county – even though Biden’s victory there has been certified.Known for his frenzied pro-Trump advocacy, including charging that Vice-President Mike Pence ought to be executed by a firing squad, Lin has other legal headaches in Georgia, where he is battling a state bar request for him to take a confidential mental competency exam after it conducted an extensive review into his alleged legal misconduct.Further, Georgia election officials in February launched an investigation into allegations that Wood may have voted illegally in the state last year after he had bought a home in nearby South Carolina. Wood has denied voting illegally.But among Trump’s fervent legal allies Rudy Giuliani, Trump’s personal lawyer during the campaign, faces the gravest threats in a widening federal investigation into whether he broke lobbying disclosure laws by representing foreign officials in Ukraine, while working to gather dirt there on Biden to boost Trump’s electoral chances.The federal inquiry, led by US prosecutors in the same New York office that Giuliani once headed, gained potentially damaging evidence in late April when FBI agents raided Giuliani’s home and office in Manhattan and seized more than 10 cellphones and other electronic equipment.Other pro-Trump lawyers are also feeling legal heat.Former federal prosecutor Joe diGenova and his wife Victoria Toensing, who shared a $1m contract with a Ukrainian oligarch fighting extradition to the US on bribery charges and reportedly helped Giuliani’s Ukraine efforts, seem to have been ensnared in part of the Giuliani investigation. Using a search warrant, federal agents took a Toensing cellphone in late April on the same day as the Giuliani raids, but Toensing has said she was told she is not a “target”.Former senior justice department officials voice dismay about the conduct of Trump’s legal allies.Donald Ayer, the former deputy attorney general in the George HW Bush administration, said he was astounded by the turn that Giuliani, Powell and diGenova have taken in “becoming cheerleaders for Trump and his assault on democracy”.“I have known them all at times over the past several decades when they each held positions of respect and some distinction,” Ayer said. “It’s a real head-scratcher for me, given that background, that they have each become so utterly disconnected from reality in pursuit of a totally unworthy cause.”Other departmental veterans say pro-Trump lawyers probably have mercenary motives.“Lawyers who make preposterous and counterfactual statements to the public typically only do it when there’s something in it for them – and that usually means money,” said Paul Pelletier, a former acting chief of DoJ’s fraud section.But there’s no doubt that Trump’s legal allies are feeling painful fallout from making suspect charges.Both Powell and Giuliani have been hit with $1.3bn defamation lawsuits from Dominion Voting Systems for conspiratorial statements that tied the Denver-based election equipment firm to nefarious fraud schemes.Powell and Giuliani have separately argued that the lawsuits ought to be dismissed. Powell has stressed that her dubious allegations were protected by the first amendment free speech rights.Still, Powell’s defense was damaged in May when her lawyers incongruously claimed she was just being hyperbolic in charging Dominion had ties to left-leaning Venezuela, and that “reasonable people would not accept such statements as fact but view them only as claims that await testing by the courts through the adversary process”.However, the legal threats facing Giuliani are notably higher due to the widening two-year-old inquiry by prosecutors into whether he was an unregistered foreign agent for Ukrainian officials who were aiding the lawyer in his quest to find damaging information about Biden.The criminal inquiry is reportedly focused on Giuliani’s part in Trump’s firing of the US ambassador to Ukraine, Marie Yovanovitch, in May 2019, a move that Giuliani and two close associates – indicted separately on charges of campaign finance violations – promoted, and a key issue in Trump’s first impeachment.After the recent FBI raid that obtained his legal devices, Giuliani denounced the federal inquiry: he said he had not lobbied anyone in the US government on behalf of any foreign officials, and told Fox News the inquiry was “trying to frame him”.But more damaging details of Giuliani’s pro-Trump Ukraine blitz were released this past week by CNN, after it obtained a secret recording from 2019 where Giuliani aggressively cajoled a high-level Ukraine official to help Trump by investigating baseless conspiracies involving Biden whose son was on a Ukrainian gas company’s board.Further, after Giuliani’s lawyers cited attorney-client privilege to limit the use of potentially damaging materials from the raid, a New York judge acting on a request from federal prosecutors tapped a retired judge as a “special master” to review the materials seized, and decide what investigators can use as they pursue possible criminal charges. 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Jared Kushner, the son-in-law of former president Donald Trump and a senior adviser in his administration, has secured a book deal to recount Trump’s presidency. Broadside Books, a conservative imprint of HarperCollins Publishers, announced that Kushner’s book will come out in early 2022. Kushner has begun working on the memoir, currently untitled, and is expected to write about everything from the Middle East to criminal justice reform to the pandemic. Financial terms were not disclosed.The signing of the Kushner deal comes amid a debate in the book industry over which Trump officials, notably Trump himself, can be taken on without starting a revolt at the publishing house. Thousands of Simon & Schuster employees and authors signed an open letter this spring condemning the publisher’s decision to sign up former vice-president Mike Pence. Broadside said on Tuesday: “His book will be the definitive, thorough recounting of the administration, and the truth about what happened behind closed doors.” He may find himself in competition with his father-in-law, who has insisted he is writing “the book of all books” – even though major figures in US publishing said on Tuesday that no big house is likely to touch a memoir by the 45th president.Kushner played a role in building ties between Israel and United Arab Emirates, Bahrain, Sudan and Morocco – the so-called Abraham Accords – and a criminal justice bill passed by Congress in 2018.He has also been the subject of numerous controversies, whether for his financial dealings and potential conflicts of interest or for the administration’s widely criticised handling of Covid-19, which has killed more than 600,000 Americans – the highest toll of any country. In April 2020, less than two months into the pandemic, Kushner labelled the White House response a “great success story”, dismissed “the eternal lockdown crowd” and also said: “I think you’ll see by June a lot of the country should be back to normal and the hope is that by July the country’s really rocking again.”At a Simon & Schuster town hall in May, employees confronted CEO Jonathan Karp over the Pence deal. Karp responded that he felt the company had a mission to hear opposing sides of political debates.He also said he did not want to publish Trump – who issued his 2015 book Crippled America through the Simon & Schuster imprint Threshold Editions – because he didn’t think the former president would provide an honest account of his time in office. Trump issued a statement last week that he was “writing like crazy” and had turned down two offers “from the most unlikely of publishers,” a claim widely disputed within the industry. More

Joe Biden reportedly plans to name Lina Khan, an antitrust researcher who has focused on the immense market power of big tech, as chair of the US Federal Trade Commission (FTC), a key win for progressives who have pushed for tougher laws to tackle monopolies and growing corporate power.The Senate confirmed Khan as a commissioner to the FTC earlier on Tuesday, with strong bipartisan support. Biden intends to tap her as chair of the commission, sources told Reuters, a decision that follows the selection of fellow progressive and big tech critic Tim Wu to join the National Economic Council.The appointment comes as the federal government and groups of states have issued an array of lawsuits and investigations into the tech giants. The FTC has sued Facebook and is investigating Amazon while the justice department has sued Alphabet’s Google.Khan is highly respected by progressive antitrust thinkers who have pushed for tougher antitrust laws or at least tougher enforcement of existing law.She most recently taught at Columbia Law School, but was on the staff of the House judiciary committee’s antitrust panel, and helped write a report that sharply criticized Amazon, Apple Facebook and Alphabet for allegedly abusing their dominance.In 2017, she wrote a highly regarded article, “Amazon’s Antitrust Paradox”, for the Yale Law Journal which argued that the traditional antitrust focus on price was inadequate to identify antitrust harms done by Amazon.Progressive civil rights organization Color of Change applauded the decision, saying it signaled “a long-awaited commitment to antitrust reform from the federal government”.“It’s clear these tech corporations are unable to adequately self-regulate, because they continue to operate on broken business models that prioritize growth and profit above Black lives and the integrity of our democracy,” said Rashad Robinson, president of Color of Change. “Government intervention is necessary to check their outsized power and end this era of corporate greed and monopolization.”Many conservative groups also approved of the choice, including advocacy group the Internet Accountability Project (IAP), which said the vote was “testament to the sea change in opinion on the right for antitrust modernization and enforcement”.“Big tech brought this on themselves with their abusive, censorial and anticompetitive behavior,” the group said. “The era of unchecked big tech monopoly power is over.”US Senator Elizabeth Warren tweeted that the administration’s selection of Khan was “tremendous news”.“With chair Khan at the helm, we have a huge opportunity to make big, structural change by reviving antitrust enforcement and fighting monopolies that threaten our economy, our society, and our democracy,” Warren said in a separate statement.In addition to antitrust, the FTC investigates allegations of deceptive advertising. On that front, Khan will join an agency which is painfully adapting to a unanimous supreme court ruling from April which said the agency could not use a particular part of its statute, 13(b), to demand consumers get restitution from deceptive companies but can only ask for an injunction. Congress is considering a legislative fix.Khan previously worked at the FTC as a legal adviser to Commissioner Rohit Chopra, Biden’s pick to be director of the Consumer Financial Protection Bureau.Reuters contributed to this report More

It is 50 years next month since Henry Kissinger embarked on the secret mission to Beijing that led to a rapprochement: “It is the conviction of President Nixon that a strong and developing People’s Republic of China poses no threat to any essential US interest,” the national security adviser assured leaders there. Half a century on, the thaw is over. The thread running through Joe Biden’s first foreign trip as president is the need for democratic alliances against growing authoritarian might, and though attention now turns to his meeting with Vladimir Putin on Wednesday, the administration’s real focus has been on China. While Beijing’s record on the pandemic, trade, human rights and other specific areas has rightly raised deep concern internationally, the underlying issue is its rise, and the decline of US power.“The US is ill and very ill indeed,” foreign ministry spokesman Zhao Lijian declared in Beijing on Tuesday. Washington’s waning power was exemplified by Donald Trump, with his erratic pronouncements and conduct, veneration of autocrats and contempt for allies. Yet if Mr Biden has largely defined himself in opposition to his predecessor, he often sounds strikingly similar on China. His approach too is shaped by domestic politics: talking tough on Beijing offers some prospect of political unity in a deeply divided country, should help to ward off Republican attacks on that front, and recognises that the business world is shifting.The US knows it must work with China on the climate crisis – with the critical Cop26 talks due this autumn – and says it does not want a cold war. Mr Biden has shunned his predecessor’s racism. But the overall hawkish tone struck on China, including briefings around the “lab leak” pandemic theory, has a cold war feel and broader repercussions – with people of east Asian descent, who have nothing to do with decisions in Beijing, facing hostility and attacks.In Europe, as elsewhere, Mr Biden has an opportunity created by the backlash against Chinese policies and “wolf warrior” diplomacy. There are signs that China’s push for influence is faltering: the European parliament froze an investment deal following tit-for-tat sanctions over Beijing’s treatment of the Uyghurs; Lithuania quit the “17+1” mechanism for dialogue with central and eastern Europe last month; and plans for a Chinese university campus in Hungary are on hold.Nato leaders this week declared China a security risk, “present[ing] systemic challenges to the rules-based international order”. But the ongoing differences on handling Beijing are evident. Emmanuel Macron was swift to add that “China has little to do with the North Atlantic” and that it was important “we don’t bias our relationship”. Similarly, Angela Merkel reportedly expressed concern that the G7 is “not about being against something, but for something”. Strategic instincts as well as commercial interests work against buying into the US agenda wholesale.Many anticipate that a new German chancellor will turn the country’s China policy in a more critical direction. But while the US is right that democratic countries must pull together on important issues, decisions cannot and should not be by American diktat. European countries are right to be wary of dancing to the US tune – not least because they wonder what kind of leader could be in charge four years from now.As Mr Biden has recognised, the US-China competition will be shaped in large part by the performance of the US: how it looks at home, as well as whether projects such as the G7 infrastructure initiative materialise in any significant way. (The G7’s failure to reach a better deal on vaccine-sharing does not bode well.) While favourable perceptions of the US and confidence in its president soared after he took office, only 17% of those surveyed in 12 countries saw American democracy as a good example for other countries to follow. America is back, we were told this week. But we are in a multilateral world now, and its position will depend not only on pursuing economic and technical superiority, but healing its politics and society too. More

The US death toll in the coronavirus pandemic passed 600,000 on Tuesday. As it did so, a former White House Covid adviser, Andy Slavitt, was under fire from the right for saying Americans could have avoided such severe losses if they had been prepared to “sacrifice a little bit for one another”.Throughout the pandemic, Republicans have been less likely to wear masks and observe other public health measures meant to mitigate virus transmission. Donald Trump eschewed social distancing guidelines to hold rallies or events. His supporters are now more likely to say they will “definitely not” get vaccinated than Democrats or independents.Slavitt left the Biden administration this month. His remarks on CBS on Monday echoed past comments about the importance of wearing masks and social distancing to protect essential workers.“We would have had a pandemic here in the US no matter what, but we can count the mistakes,” he said. “We obviously had a set of technical mistakes with the testing and the PPE that we know about.”He added: “We all need to look at one another, and ask ourselves what do we need to do better next time, and in many respects being able to to sacrifice a little bit for one another to get through this and save more lives … I think that’s something we could have all done a little better on.”Most counts on Tuesday put the US past 600,000 deaths – the widely trusted and cited count by Johns Hopkins University passed the milestone at lunchtime. Cases are down but the US still has among the worst death rates per capita, eclipsed only by Peru, Brazil, Argentina and Colombia, according to the Johns Hopkins Coronavirus Resource Center. Those nations had later access to Covid-19 vaccines and have vaccinated fewer people.Slavitt is promoting a book, Preventable: The Inside Story of How Leadership Failures, Politics and Selfishness Doomed the US Coronavirus Response.Critics on the right argued that Americans had sacrificed enough.“The government screwed up testing, slow-rolled vaccine approval, discouraged masks in the early days, told people to wash their groceries and closed parks and beaches,” said an editor of the libertarian magazine Reason on Twitter, referring to the early days of the pandemic under the Trump administration, in spring 2020. “But [according to Slavitt] it is you, the citizen, who did it wrong.”Public health leaders including Jennifer Nuzzo, an epidemiologist at Johns Hopkins Center for Health Security, defended Slavitt, saying criticism “does not reflect what we know about who has been at greatest risk of infection”.On Tuesday, Slavitt spoke to CNN.“We as a country could have put the lives of people higher on the list versus our own individual liberties,” he said.“We as a country decided that we were going to get many, many more people exposed without pay, without healthcare insurance, without support. And so we decided that the creature comforts – keeping the meatpacking plants open when they were unsafe – were more important than making sure we protected each other.”Although the US had several lockdowns, most were far less severe than in other countries, leading to increased spread of Covid-19. The issue quickly became political. Michigan, for example, saw sustained anti-lockdown sentiment and also suffered some of the worst outbreaks in the pandemic. Experts have argued that the US still does not have enough testing to tamp down future outbreaks.Just over half of the US population has received one dose of a Covid-19 vaccine, with vaccination rates inching upward. But vaccination rates in Republican- and Democratic-leaning states have diverged.States across the south and west, most likely to be led by Republicans, have the lowest vaccination rates. Mississippi, Alabama, Arkansas, Wyoming, Louisiana and Tennessee all have less than 35% of their populations fully vaccinated.The predominantly Democratic north-east is leading in vaccination rates, with Vermont, Maine, Massachusetts, Connecticut, Rhode Island and New Hampshire all having more than 50% fully vaccinated.Republicans, rural residents and white evangelical Christians are most likely to say they will “definitely not” get vaccinated. All three groups are disproportionately likely to identify as Republican and support Trump.On CNN on Tuesday, Slavitt was asked about the danger of Covid variants.“If you’re vaccinated,” he said, “… the vaccines are proving to be quite effective even against the Delta variant, so you’ve very little to worry about. If you’re not vaccinated, the Delta variant will spread in your community more quickly. It will take less exposure to get Covid-19.”Slavitt also warned: “If you have more than roughly half the population vaccinated, it’s not as if half the people you know are vaccinated and half aren’t. Either just about everybody you know is vaccinated or everybody you know isn’t.”New outbreaks would probably not have “quite the wildfire spread as we saw in 2020”, he said. “But they’re still going to impact [less vaccinated] communities pretty strongly.” More