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    The fight for abortion rights: what to know going into 2024

    More than a year after the US supreme court overturned Roe v Wade, the dust from the landmark decision’s collapse has yet to settle.It has been a dramatic year of fallout, with abortion rights supporters and foes now waging a state-by-state skirmish for abortion rights. They are sparring in state legislatures, courtrooms, voting booths and hospitals, with each side racking up victories and losses.With a presidential election and another major supreme court case on the horizon, the coming year promises to be at least as eventful. Here’s what you need to know about the fight over abortion in 2023 – and what it means for 2024.Abortion rights supporters keep winning at the ballot boxIn 2022, Republicans underperformed in the midterms and abortion rights activists won a string of ballot measures to preserve abortion rights, even in conservative states. This year, activists extended their winning streak – and they hope to replicate their successes in 2024.In November, Ohio became the first reliably red state since Roe fell to vote in favor of proactively enshrining abortion rights in the state constitution, while Virginia Democrats successfully fended off Republicans’ attempt to retake the state legislature by campaigning on a 15-week abortion ban.For activists and Democrats, these victories were proof that abortion is an election-winning issue – and, potentially, an issue that can draw in voters from across both sides of the ideological spectrum. Activists are already at work on 2024 abortion-related ballot measures in roughly a dozen states, including swing states like Arizona and Nevada.Abortions are on the riseAfter abortion clinics across the south and midwest were forced to shutter, patients overwhelmed the country’s remaining clinics. In the first year after Roe’s demise, the average number of US abortions performed each month rose rather than fell. Clinics and their advocates are now struggling to keep up. “What actually is happening is a complete disruption,” one expert told the Guardian.There is also a gaping hole in the data, which was released in October by the Society of Family Planning: it does not include abortions performed at home, a practice known as “self-managed abortion”. Medical experts widely agree that it is safe to self-manage an abortion using pills early on in pregnancy, and a number of services shipping abortion pills have increased in visibility since Roe’s overturning. But while evidence suggests that self-managed abortion is on the rise, the lack of concrete data about the practice reflects a growing problem in the post-Roe United States: as abortion moves further into the shadows of US life, we will know less about it.Legal battles over abortion bans are ongoingAbortion bans continued to cascade across the country in 2023, with near-total bans taking effect in Indiana, North Dakota and South Carolina. South Carolina and Nebraska, meanwhile, enacted laws to ban abortion after 12 weeks of pregnancy. In total, 24 states or territories have now banned abortion before viability, or roughly 24 weeks of pregnancy, which would have been illegal under Roe.Litigation over abortion restrictions is still unfurling in many of these states, and court cases have frozen bans in states like Wyoming and Iowa. Wisconsin abortion providers, meanwhile, found themselves in a unique position this year: after a judge ruled that an 1849 law that had been interpreted to ban abortions instead only banned feticide and did not apply to what she called “consensual abortions”, providers resumed performing the procedure – even though the ban is still technically on the books.Lawsuits may force other hardcore anti-abortion states to soften their bans in 2024 to clarify exceptions when abortions are permitted in medical emergencies. While Tennessee and Texas carved out narrow exceptions in their abortion laws, abortion rights supporters have still filed lawsuits in those two states, as well as in Idaho, that challenge the language. One Texan mother of two filed a lawsuit seeking an emergency abortion while she was still pregnant. (She ultimately fled the state for the procedure.)Theoretically, people in medical emergencies should be able to access the procedure even in states with bans – but doctors say that, in reality, these bans are so vaguely worded that they block doctors from helping sick patients. This summer, one of these lawsuits led women to testify in a Texas court about their experiences of being denied abortions. It was the first time since Roe fell, if not the first time since Roe itself was decided, that women did so.Abortion pills are in perilThe most common method of abortion, abortion pills, is at the mercy of deeply conservative courts in 2024.In April, a conservative judge in Texas ruled to suspend the FDA’s approval of a key abortion pill, mifepristone, in response to a lawsuit brought by a coalition of rightwing groups determined to make the pill the next target in their post-Roe campaign against abortion. A federal appeals court soon scaled back that decision, ruling to keep the pill, mifepristone, available but impose significant restrictions on its use. The supreme court then stepped in and decreed that the FDA’s rules around mifepristone should stay the same while litigation plays out.The Biden administration and a manufacturer of mifepristone in September have asked the supreme court to formally hear arguments in the case. In December, the justices agreed.Although the justices indicated that they will only rule on the restrictions imposed by the appeals court, rather than on the overall legality of mifepristone, the case could still have enormous consequences. Rolling back the FDA’s rules could allow future lawsuits against other politicized medications, like gender-affirming care, HIV drugs or vaccines. Plus, the supreme court will probably rule by summer 2024 – just months before the presidential election.Mifepristone is used in more than half the abortions in the country. If access to the drug is curtailed, many abortion clinics have said they will pivot to using doses of a different drug, misoprostol, to perform abortions, but misoprostol-only abortions are less effective and associated with more complications.Doctors are fleeing states with abortion bansWith abortion bans endangering their patients and threatening to send doctors to prison, doctors are fleeing states where the procedure is banned. After Idaho banned abortion, at least 13 reproductive health physicians left the state and at least two rural labor and delivery wards have closed. Doctors in Tennessee, Texas, North Carolina, Ohio and Florida have also told reporters that they are leaving states with abortion bans or planning to do so.OB-GYNs are already in short supply in the United States. About half of US counties do not have a practicing OB-GYN, according to the American College of Obstetricians and Gynecologists. The US maternal mortality rates are also worsening, particularly for Black and Native people, at a time when the United States already has the worst maternal mortality rate among industrialized countries.Doctors are now even afraid to get trained in states with abortion bans. Applications to OB-GYN residencies in states with near-total bans fell by more than 10% the year after Roe’s demise, according to data from Association of American Medical Colleges. Applications to US OB-GYN residencies overall dropped by about 5% – indicating that fewer doctors are planning to become OB-GYNs at all. More

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    Will Trump provoke a crisis of legitimacy for the US supreme court? | Sidney Blumenthal

    Donald Trump’s packing of the supreme court, to which he appointed three members, to create a reliable conservative majority, has been hailed by the right as his greatest achievement. The Wall Street Journal editorial page has stated that the most important prospect of a second Trump term would be his appointment of federal judges in their mold. But Trump’s candidacy for that second term now poses an existential threat to the legitimacy of the court’s conservative majority.The decision earlier this week by the Colorado supreme court disqualifying Trump from the state ballot strikes at more than Trump’s eligibility. It cuts to the core of the ideological doctrines of originalism and textualism that underpin the conservative majority’s entire jurisprudence. Originalism claims to divine the original intent of the country’s founders and interprets the constitution along those lines. Using cherry-picked, false and bad-faith history, originalism has been the pure pretext for overturning Roe, dismantling commonsense gun regulations, ending environmental regulation, gutting consumer protection and voiding voting and civil rights.Originalism is a recent contrivance, patched together as part of the “gameplan”, as Trump’s court whisperer, the Federalist Society’s Leonard Leo, describes it, of the capture of the courts to entrench the right’s agenda beyond the threat of adverse political tides for generations to come.Textualism is the sister doctrine of originalism, providing snatches of text from the constitution divorced from social and legislative context as if in scriptural fundamentalism to undergird the reversal of rights. It claims that to interpret a law, a judge may examine the plain meaning of its text but nothing else. It works hand in hand with originalism to exclude inconvenient portions of the historical record from judicial consideration.But now this politicized jurisprudence has turned on its inventors. If ever there is a legal ruling of ironclad constitutional reasoning that can be defended on originalist and textual grounds it is in Anderson v Griswold, the decision issued last week by the Colorado supreme court. The decision holds that Trump engaged in insurrection on 6 January 2021, and that he is therefore barred for running for president under section three of the 14th amendment.Trump’s appeal to the supreme court creates a crisis for the entire conservative methodology. If the court denies certiorari, declining to rule on the case, or upholds the Colorado decision, Trump would face disqualification cases in states across the country, throwing the election into chaos. The Republican sponsors of the conservative court are panicked and enraged. The Wall Street Journal, the veritable mouthpiece of justices Clarence Thomas and Samuel Alito, is loudly decrying the Colorado “folly”.The conundrum for the court is that it can rescue Trump only by shredding originalism and textualism. There is no more originalist and textualist case to be made than this one. But this time, the solidity of the case is not based on specious doctrine. Here the logic can rightfully be said to be rooted in history and the constitution.Two leading conservative legal scholars, William Baude, of the University of Chicago law school, and Michael Stokes Paulsen, of the University of St Thomas law school, arguing on strict originalist grounds, state unequivocally that Trump is constitutionally barred from running for office. Section three of the 14th amendment prohibits anyone who has held public office sworn to uphold the constitution and who then engages “in insurrection or rebellion” from ever holding office again. The amendment, Baude and Paulsen demonstrate, is “binding”, “general”, “prospective” and “self-executing”, requiring “no implementing legislation”, and they say “disqualification is sweeping in its terms”.The Colorado supreme court found, without disagreement, and by clear and convincing evidence, that Trump indeed engaged in insurrection on January 6. Consequently, the case is, on originalist and textual as well as historical grounds, open and shut. On the facts and the law, the court majority faces a brutal dilemma: either uphold Trump’s disqualification or shred the doctrine on which their conservative jurisprudence stands.The only escape hatch, for the court and for Trump, would be a momentary, politically derivative expedient, such as asserting that Trump has been denied due process because he has not been criminally prosecuted for insurrection. Alternatively, the justices could seize upon what has become the media pundit’s panacea, that there are no disqualifications except the horserace itself, falsely invoking democracy as superior to the constitution, which defines American democracy. Or the court could claim that Trump ultimately has immunity from any charges of insurrection, placing the former president above the law. Yet, seizing on that sort of solution would contradict the constitutional nature of the disqualification, the stated intent of its framers and the historical record.The due-process argument is less an escape hatch than a dead end. The notion that the court might relieve Trump because he is not, at least yet, convicted for the insurrection of January 6 would contradict the character of all constitutional disqualifications, which do not depend upon criminality. Mark Graber, of the University of Maryland school of law, the leading scholar on section three, has definitively shown that “Republicans insisted section three sets out a new qualification for office, not a punishment for a criminal offense”. Graber quotes the senator Lot M Morrill of Maine as representative of the overwhelming view of the 14th amendment’s framers, that there was “an obvious distinction between the penalty which the State affixes to a crime and that disability which the State imposes and has a right to impose against persons whom it does not choose to intrust with official station”.Graber further quotes the senator Waitman Willey of West Virginia that section three was “not … penal in its character, it is precautionary”. Most importantly, Willey emphasized that the measure applied not just to the aftermath of the civil war, but was permanent: “It looks not to the past, but it has reference … wholly to the future. It is a measure of self-defense.”Some pundits have offered up the widely ridiculed case In re Griffin, of 1869, as a vehicle for the court to evade its Trump tangle by holding that the 14th amendment imposes no disqualification since Congress never passed a law specifically about it. In that case, the chief justice, Salmon P Chase, stated that section three was not self-executing but required enabling legislation. His position directly contradicted the one he took the year before, in presiding over Confederate president Jefferson Davis’s treason trial, that section three was self-executing and that its punishment voided other charges against him – advice Chase himself offered to Davis while acting as the judge in the trial in which he dismissed the case.Chase’s positions were “illogical and cannot be explained by legal analysis” according to Gerard N Magliocca, of the Indiana University school of law, the leading expert on the provision. Chase’s claim that section three was not self-executing was “unpersuasive”, “flawed” and marked by “inconsistency”. Baude and Paulsen deride Chase’s decision as “simply wrong … full of sleight of hand, motivated reasoning and self-defeating maneuvers” and said it “should be hooted down the pages of history, purged from our constitutional understanding of Section Three”.Again, the historical background matters. Chase, former icon of radical Republicanism, was in 1869 attempting to win the Democratic party nomination for president. He had always been ambitious to be president, seeking the office continually since 1852. He had run a covert campaign against Lincoln’s re-election in 1864, its exposure prompting him to quit the cabinet as the secretary of treasury. Lincoln, who said of Chase’s ambition that he had “the presidential maggot in his brain”, named him chief justice. In 1869, at the time of In re Griffin, Chase had taken a southern tour to gain political support. The New York Herald editorialized that Chase “has been hailed as the coming man by the Southern conservatives”.Citing In re Griffin, however, would be in the tendentious spirit of the supreme court’s ruling in Bush v Gore, which halted the counting of votes in Florida and delivered the presidency to George W Bush. That decision, written by justice Antonin Scalia, invoked the 14th amendment to assert that Bush would be unfairly disadvantaged if the vote counting proceeded. Privately, Scalia said of his ruling: “As we say in Brooklyn, a piece of shit,” according to Evan Thomas’s biography of Sandra Day O’Connor. If the court were to seize upon the thin reed of In re Griffin, it would be in the spirit of grabbing any available tool to achieve the results it seeks as in Bush v Gore, ie, “a piece of shit”.Section three was adopted to prevent former leaders of the Confederacy from returning to control of the state and for federal governments to restore their power and rescind reconstruction. The Confederate vice-president, Alexander H Stephens, most prominently, was elected the US senator from Georgia, but under section three he was disqualified from holding the office. Stephens had been briefly arrested after the war, but never charged with a crime. Not a single one of the former Confederate leaders who were disqualified under section three were ever charged or tried, for insurrection or any other charge. Disqualification under the 14th amendment required no criminal conviction then and requires none now. It is a constitutional prerequisite for holding the presidency, no more or less than being 35 years old and native-born.The senator Lyman Trumbull, of Illinois, one of the key figures in the passage of the 14th amendment, observed during the debate that the constitution “declares that no one but a native-born citizen of the United States shall be President … Does, then, every person living in this land who does not happen to have been born within its jurisdiction undergo pains and penalties and punishment all his life, because by the Constitution he is ineligible to the Presidency?” No criminal trial was required for disqualification.If the supreme court were to decide that Trump must be tried and convicted of insurrection in order to be disqualified, it would severely undermine the intent of the Constitution as well as all precedents. If the court cites Chase’s In re Griffin, then it should reconcile it with Chase’s contrary position in the Jefferson Davis trial. Of course, this cannot be done. All of this would be Bush v Gore squared.The drafters and supporters of the 14th amendment were explicit that the ban on insurrectionists included candidates for the presidency. In the first draft, the language provided that insurrectionists were excluded from holding “the office of President or Vice President of the United States, Senator or Representative in the national Congress, or any office now held under appointment from the President of the United States, and requiring the confirmation of the Senate”.The specific references to the president and vice-president were dropped, but only to be subsumed to identify a broader range of office-holders of “any office, civil or military”. The senator Reverdy Johnson of Maryland raised the question of the omitted mention of the president and vice-president in the floor debate in the Senate on 30 May 1866. Johnson had been the attorney general under President Zachary Taylor. “But this amendment does not go far enough,” he said. Morrill explained that the overarching language indeed covered those offices.As it happens, no insurrectionist after the civil war ever ran for president until now. The closest anyone with an association to the Confederacy came was the nephew of James D Bulloch, the agent who ran the Confederate secret service operation in England. That nephew was Theodore Roosevelt, who was given a ring on the day of his inauguration in 1905 containing a hair that his secretary of state, John Hay, cut from Lincoln’s head on his deathbed when Hay was his personal secretary.skip past newsletter promotionafter newsletter promotionTrump’s defense is that as president he was an officer, but not, as the Colorado supreme court ruled, “under the United States”. He was instead the government itself. L’État, c’est moi is not a constitutional principle, helas, except as claimed by Richard Nixon: “When the president does it, that means it’s not illegal.” Trump’s defense is malignant narcissism translated into legalese.One of Trump’s apologists, Michael Mukasey, George W Bush’s former attorney general, writing in the Wall Street Journal, repeated Trump’s sophistry while adding that the phrase “officer” “refers only to appointed officials, not to elected ones”. But his invention is refuted by the plain historical record. As a textual matter, the Colorado ruling notes that the constitution mentions the president as an “office” 25 times, in clause after clause, as well as quoting Alexander Hamilton’s Federalist Paper No 69 as saying: “The President of the United States would be an officer elected by the people … .”Trump himself as president has called himself an “officer”. When he criticized the justice department for issuing sentencing guidelines to be applied to the criminal convictions of his close associates Roger Stone and Mike Flynn, Trump tweeted it was a “miscarriage of justice”. In the spirit of impunity, he proclaimed: “I’m actually the chief law enforcement officer of the country.” In fact, the president is not. The attorney general is the chief law enforcement officer. Nonetheless, Trump recognized himself as an “officer”, presumably under the United States. (Shortly after the incident, he pardoned Flynn and commuted Stone’s sentence.)Trump has also weighed in numerous times on the question of whether constitutional disqualification is self-executing. In his spurious and vile campaign claiming that Barack Obama was not a natural-born citizen, his birther lie, Trump stated on many occasions that if Obama could not prove his nativity, then he should be disqualified from holding office. There was no need for enabling legislation or a court ruling. “I think it’s an important fight because, you know, essentially you’re right down to the basics,” he told Fox News in 2012. “The answer is if you’re not born here, you can’t be president. So it’s not like, ‘Oh, gee, let’s not discuss it.’”Trump repeated his belief that constitutional disqualification was self-executing in 2016 against the senator Ted Cruz of Texas, a Republican primary opponent, whom Trump falsely said was not a natural-born citizen and therefore could not hold the presidency. “I don’t want to win it on technicalities, but that’s more than a technicality. That is a big, big factor,” he said. The factor Trump hyped was a lie, but the “technicality” that disqualification is self-executing is not.If section one of the 14th amendment, establishing natural birth in the US as a basis of citizenship, is self-executing, so is section three establishing disqualification for office on the basis of being an insurrectionist. Moreover, both of those provisions are as self-executing as the amendment that preceded them: the thirteenth amendment abolishing slavery. Lincoln called it “the king’s cure” as a self-executing constitutional measure to supersede and nationalize the Emancipation Proclamation, which was a military order and could not be sustained once the war ended. Once enacted, the thirteenth amendment went into effect. Slavery was abolished. Congress was given the power to enforce it.Moreover, as the Colorado supreme court opinion pointed out, it is incorrect to conflate actions that are “textually committed” to Congress’s exclusive authority with actions that are merely “textually authorized”. Section three is still self-executing in the sense that the judiciary has the power to interpret and apply it, even if Congress has overlapping authority but has chosen not to legislate on the subject.The Colorado supreme court decision makes clear the constitutional logic that inextricably links these civil war amendments. “There is no textual evidence that Congress intended section three to be any different” from the other amendments, the Colorado court states: “ … interpreting any of the Reconstruction Amendments, given their identical structure, as not self-executing would lead to absurd results. If these Amendments required legislation to make them operative, then Congress could nullify them by simply not passing enacting legislation. The result of such inaction would mean that slavery remains legal … ”Some Trump defenders have bent history to say that there is no comparison between the events of January 6 and the civil war, the true insurrection that the framers of the 14th amendment had in mind. But bringing up the civil war only reinforces the already airtight case against Trump.The motive behind Trump’s attempted coup and the secession of South Carolina and subsequent southern states that initiated the civil war were exactly the same: both of these events were driven by rejection of the results of a presidential election. Trump organized his coup to “stop the steal” before the election, just as the secessionists organized their actions before election day. The Declaration of the Immediate Causes Which Induce and Justify the Secession of South Carolina from the Federal Union stated on 24 December 1860, that its precipitating reason was “the election of a man to the high office of President of the United States, whose opinions and purposes are hostile to slavery”.President-elect Lincoln expressed “real anxiety” about the electoral college certification on 13 February 1861. The general Winfield Scott stationed two batteries of artillery at the north portico of the Capitol and soldiers at the doors to check the credentials of everyone entering. Vice-President John C Breckinridge, who would later join the Confederacy as a general and secretary of war, presided with calm dignity. On January 6, the culmination of Trump’s coup, an attempt to disrupt the electoral college certification, there were more fatalities than in the bombardment of Fort Sumter on 12 April 1861. Nine people died in connection with the assault on the Capitol on January 6, five of them police officers, while one soldier died at Sumter during its evacuation. The insurrection of January 6 was an unprecedented violent and murderous event in its own right.The court heard and accepted the detailed evidence of Trump’s pattern of incitement and violence surrounding the insurrection from an expert witness on political extremism, Peter Simi, a sociologist from Chapman University who has provided training to the FBI, the Department of Homeland Security and the Department of Justice. “The Court concludes that Trump acted with the specific intent to incite political violence and direct it at the Capitol with the purpose of disrupting the electoral certification,” the Denver district court state judge Sarah Wallace ruled on 17 November. She dismissed his claim to free speech outright: “The evidence shows that Trump not only knew about the potential for violence, but that he actively promoted it and, on January 6, 2021, incited it. His inaction during the violence and his later endorsement of the violence corroborates the evidence that his intent was to incite violence on January 6, 2021 based on his conduct leading up to and on January 6, 2021.”Trump’s defense argued that an insurrection must be defined as “against” the constitution, not “the United States”. The district court judge rejected this patent absurdity. Based on the facts, she ruled: “The Court further concludes that the events on and around January 6, 2021, easily satisfy this definition of ‘insurrection.’” Trump then attempted to evade judgment by splitting semantic hairs, claiming that “engagement” was not “incitement”, again rejected by the court as a distinction without a difference: “Having considered the arguments, the Court concludes that engagement under Section Three of the 14th Amendment includes incitement to insurrection.” Thus, Trump was adjudicated to be an insurrectionist. But the district court declined to define the president as an officer of the US under section three, kicking the question to the Colorado supreme court, which decided the matter.Most importantly, Trump’s defense did not challenge the account heeded by the Colorado courts; nor did it present “alternative facts” about January 6, a Kellyanne Conway defense. It offered no objection to ruling that January 6 was an insurrection and that Trump is an insurrectionist. But that only reinforces the inescapability of Trump’s actions for the US supreme court majority.In taking up Trump’s appeal, the US supreme court cannot review the basic facts. It cannot call witnesses on its own. It cannot hear new witnesses. It cannot declare the Colorado court’s conclusions erroneous on the facts. Indeed, given that Trump has not challenged the facts, he may not in fact have a true basis for an appeal. The court could let the Colorado decision stand on that ground. But if it takes up the appeal, it must find an interpretation that flies in the face of both the overwhelming history and the self-evident constitutional text. Supporting Trump’s free and full license above the law would in this case expose the conservative majority’s originalism as a hollow conceit.If the court grants Trump a reign of impunity as well as total immunity for his past actions, it will also be opening the gate for his stated intention to abrogate the constitution to establish a dictatorship in the future. Section three, established as the “self-defense” of the republic for the future, will be rendered meaningless.
    Sidney Blumenthal, the former senior adviser to president Bill Clinton and Hillary Clinton, has published three books of a projected five-volume political life of Abraham Lincoln: A Self-Made Man, Wrestling With His Angel and All the Powers of Earth
    This article was amended on 26 December 2023. The date of the electoral college certification in 1861 was 13 February, not 13 January, as we originally said. More

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    New York governor vetoes bill to make conviction challenges easier

    The New York governor, Kathy Hochul, vetoed a bill days before Christmas that would have made it easier for people who have pleaded guilty to crimes to challenge their convictions, a measure that was favored by criminal justice reformers but fiercely opposed by prosecutors.The Democrat said the bill’s “sweeping expansion of eligibility for post-conviction relief” would “upend the judicial system and create an unjustifiable risk of flooding the courts with frivolous claims”, in a veto letter released on Saturday.Under existing state law, criminal defendants who plead guilty are usually barred from trying to get their cases reopened based on a new claim of innocence, except in certain circumstances involving new DNA evidence.The bill passed by the legislature in June would have expanded the types of evidence that could be considered proof of innocence, including video footage or evidence of someone else confessing to a crime. Arguments that a person was coerced into a false guilty plea would have also been considered.Prosecutors and advocates for crime victims warned the bill would have opened the floodgates to endless, frivolous legal appeals by the guilty.The Erie county district attorney, John Flynn, the president of the District Attorney’s Association of the State of New York, wrote in a letter to Hochul in July that the bill would create “an impossible burden on an already overburdened criminal justice system”.The legislation would have benefitted people such as Reginald Cameron, who was exonerated in 2023, years after he pleaded guilty to first-degree robbery in exchange for a lesser sentence. He served more than eight years in prison after he was arrested alongside another person in 1994 in the fatal shooting of Kei Sunada, a 22-year-old Japanese immigrant. Cameron, then 19, had confessed after being questioned for several hours without attorneys.His conviction was thrown out after prosecutors reinvestigated the case, finding inconsistencies between the facts of the crime and the confessions that were the basis for the conviction. The investigation also found the detective that had obtained Cameron’s confessions was also connected to other high-profile cases that resulted in exonerations, including the Central Park Five case.Various states including Texas have implemented several measures over the years intended to stop wrongful convictions. Texas amended a statute in 2015 that allows a convicted person to apply for post-conviction DNA testing. In 2017, another amended rule requires law enforcement agencies to electronically record interrogations of suspects in serious felony cases in their entirety.“We’re pretty out of step when it comes to our post-conviction statute,” Amanda Wallwin, a state policy advocate at the Innocence Project, said of New York.“We claim to be a state that cares about racial justice, that cares about justice period. To allow Texas to outmaneuver us is and should be embarrassing,” she said.In 2018, New York’s highest court affirmed that people who plead guilty cannot challenge their convictions unless they have DNA evidence to support their innocence. That requirement makes it very difficult for defendants to get their cases heard before a judge, even if they have powerful evidence that is not DNA-based.Over the past three decades, the proportion of criminal cases that make it to trial in New York has steadily declined, according to a report by the New York State Association of Criminal Defense Lawyers. About 99% of misdemeanor charges and 94% of felony charges in the state are resolved by guilty pleas.“In my work, I know there there are a lot of circumstances where people plead guilty to crimes because they are advised or misadvised by their attorneys at the time,” said Donna Aldea, a lawyer at the law firm Barket Epstein Kearon Aldea & LoTurco. “Sometimes they’re afraid that if they go to trial, they’ll face much worse consequences, even if they didn’t commit the crime.”She said the state’s criminal justice system right now is framed in a way that makes it impossible for people to challenge their guilty pleas years later when new evidence emerges, or when they are in a better financial position to challenge their convictions. More

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    Supreme court declines to expedite decision on Trump’s immunity claim in 2020 election case

    The US supreme court on Friday rejected a request by the special counsel to expeditiously decide whether Donald Trump has immunity from federal prosecution over his efforts to overturn the 2020 election results, before a lower appeals court issued its own judgment.The one sentence denial means the case is returned to the US court of appeals for the District of Columbia circuit, where a three-judge panel is scheduled to hear oral arguments in January, and the case against Trump remains frozen pending the outcome of the appeal.In declining to leapfrog the lower court and fast-track the appeal, the supreme court handed a crucial and potentially far-reaching victory to Trump as he seeks to delay as much as possible his trial, currently scheduled for next March in federal district court in Washington.The decision almost certainly slows down Trump’s federal election interference case. Even if the DC circuit rules against Trump quickly, the former president can first ask the full appeals court to rehear the case, and then has 90 days to lodge a final appeal to the supreme court.Trump was indicted in June by the special counsel Jack Smith for conspiring to impede the peaceful transfer of power, but sought to have the charges thrown out by contending he could not be prosecuted for actions he undertook as president that were related to his official duties.The filing contended that all of Trump’s attempts to reverse his 2020 election defeat in the indictment, ranging from pressuring his vice-president, Mike Pence, to stop the congressional certification to organizing fake slates of electors, were in his capacity as president and therefore protected.At the heart of the Trump legal team’s filing was the extraordinary contention that not only was Trump entitled to absolute presidential immunity, but that the immunity applied regardless of Trump’s intent in engaging in the conduct described in the indictment.This month, his motion was rejected by the presiding US district judge Tanya Chutkan. That set the stage for Trump, who had always expected the motion to fail, to lodge an appeal that would stay the case while the DC circuit considered the matter.Obtaining the stay was always part of Trump’s strategy – he is seeking delay because if he wins re-election before the trial occurs, he could arrange to have the charges dismissed – and his lawyers were counting on a lengthy appeals process that would buy the time.The strategy, according to people close to Trump’s legal team, involved Trump going to the supreme court and securing additional weeks or months of delay – only after weeks of delay before the DC circuit.But prosecutors attempted to preempt Trump’s ploy by asking the supreme court to bypass the DC circuit and resolve the immunity question directly. In court filings, the special counsel suggested keeping the March trial date was in the public interest.skip past newsletter promotionafter newsletter promotionThe request from prosecutors that the nation’s highest court rule on a case before judgment by an appeals court – and force Trump to contend with the Supreme Court plank of his delay strategy months earlier than he anticipated – was unusual but underscored the gravity of the moment.On Friday, the court essentially sided with Trump, who had argued the day before for the special counsel’s petition to be denied, arguing on procedural grounds that prosecutors had no basis to appeal a trial court ruling that was favorable to them and where the government had not suffered any harm.The denial, appellate experts said, underscored the peril of allowing trial prosecutors to help frame issues before the supreme court, instead of having the solicitor general’s office – which normally argues on behalf of the government – refine arguments to the sensibilities of the justices.The emergency petition on the Trump immunity question did not involve the solicitor general’s office. Although the filing was signed by former deputy solicitor general Michael Dreeben, it also included the special counsel himself and two of his deputies, JP Cooley and James Pearce. More

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    Trump shouldn’t be eligible to run again. But America’s highest court may disagree | Margaret Sullivan

    Should there be a political price to pay for a president who refuses to engage in a peaceful transfer of power and incites a violent coup to stay in office?Common sense says yes.As does a majority vote of the Colorado supreme court. But since their stunning ruling this week that Donald Trump may not appear on their state’s primary ballot, many a lawyer and pundit is arguing otherwise.They say, for example, that it’s not the role of a court but of the voters to decide a matter of such import. They don’t seem to recall that the voters did decide in 2020 when they elected Joe Biden, but that Trump refused to accept that decision and did everything in his power to reverse it.Others allow that the constitution does provide that insurrection is disqualifying but they ponder whether Trump – without a legal conviction – really fits that definition. And in some cases, these critics twist themselves into verbal knots to express their doubt.“I generally say that Trump attempted to secure an unelected second term in office,” wrote Jonathan Chait in New York magazine. “Insurrection,” he notes, may be useful shorthand for Trump’s role but it’s too imprecise to accomplish what the Colorado jurists say it does.President Biden sounded sensible when asked by a reporter if Trump is an insurrectionist. “It’s self-evident … he certainly supported an insurrection. There’s no question about it. None. Zero.”But even Biden, hardly a disinterested party, admits another obvious factor: the US supreme court will make the ultimate decision.The smart money seems to be on the court’s ruling in Trump’s favor.Elie Mystal, justice correspondent for the Nation, predicted that the highest court will overturn Colorado 8-1, that the opinion will be written by Chief Justice John Roberts and Justice Elena Kagan, and only Justice Ketanji Brown Jackson will dissent.“John Roberts is probably standing outside Elena Kagan’s office like [actor John Cusack] with a jukebox right now,” Mystal quipped, alluding to the iconic pleading-for-attention scene in the 1989 movie Say Anything. “He needs her for cover for what he’s about to do … He’s playing a full 80s mixtape.”Other anti-Trumpers remain more hopeful, for some plausible reasons. One is that that conservative justice Neil Gorsuch, before he rose to his current lofty position, once wrote that states may and should protect the integrity of the political process by keeping candidates off the ballot if they are “constitutionally prohibited from assuming office”.I’m no constitutional lawyer but Trump’s post-election actions like inciting an insurrection and pushing a fake-electors scheme seem strong enough to fit that bill. But, of course, there are ways to justify the opposite.“A serious and careful opinion that reaches a reasonable conclusion,” was how the UCLA law professor Rick Hasen characterized the Colorado ruling. But he noted that, whether on the merits or on doctrinal grounds, the supreme court certainly can find grounds to disagree.skip past newsletter promotionafter newsletter promotionHasen calls it imperative that the court move quickly: “Voters need to know if the candidate they are supporting for president is eligible.” A later determination of eligibility, especially if it were to involve congressional Democrats, “would be tremendously destabilizing”.For me, it comes down to this. Trump is an anti-democracy candidate, and his actions, over the past eight years, have proven that, time after time.Too many Americans are so inured to his firehose of outrages that they don’t see as clearly as the Colorado jurists do that this man now should not be eligible for the leadership of the free world. Mainstream media’s horserace fixation, and rightwing media’s relentless propaganda, has made that blindness worse. (On Thursday morning, Fox News offered this mind-blowing chyron: “GOP leaders suggest removing Biden from red-state ballots over border crisis.”)Even if the Colorado justices don’t prevail, I am grateful to them for stating some obvious truths: that Trump has gone far beyond the limits of what’s acceptable in a candidate for highest office. That the checks and balances of the branches of government exist for a reason. That Trump doesn’t have to be convicted of insurrection, though he may eventually be, to be disqualified via the 14th amendment of the US constitution.After all he’s done – especially in the shocking wake of the 2020 election – Trump is clearly unfit for office.Whatever the outcome, having that recognized by a well-respected state court is a victory for common sense and integrity.
    Margaret Sullivan is a Guardian US columnist More

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    US supreme court urged to make ‘immediate, definitive decision’ on Trump’s immunity

    Jack Smith has urged speed for the supreme court to take up the issue of whether Donald Trump is, as the former president claims, immune from criminal prosecution on federal charges over his efforts to overturn his 2020 election loss.On Thursday the US special counsel submitted a new file to the supreme court in Washington DC, reiterating his argument for urgency in their consideration of such a key element of the federal election interference case, in response to Trump’s latest move the day before.On Wednesday, Trump’s team asked the highest court in the US to stay out of the argument about whether he has immunity from federal criminal prosecution, after Smith asked the court last week to take up review of the matter.On Thursday, Smith submitted to the supreme court that in the public interest it should make an “immediate, definitive decision” on the “important constitutional question” of Trump’s immunity or lack of it in the federal election interference case.“The charges here are of the utmost gravity. This case involves – for the first time in our nation’s history – criminal charges against a former president based on his actions while in office,” the latest submission said.Smith’s filing added: “Enforcing federal criminal laws that prohibit such conduct is vital to protecting our constitutional processes and democracy itself.”skip past newsletter promotionafter newsletter promotionSmith is the veteran prosecutor appointed as special counsel by the US attorney general, Merrick Garland, in November 2022, to lead two federal investigations of Trump, the election interference case and the alleged mishandling of classified documents that were discovered at his Mar-a-Lago resort in Florida after he left office. More

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    Is barring Trump from office undemocratic? Let’s assess point by point | Jan-Werner Müller

    The decision by the Colorado supreme court to ban Donald Trump from the Republican primary has received pushback from some predictable and some not-so-predictable quarters.The former president’s supporters of course consider him the great Maga martyr, temporarily hindered by nefarious elites from his rightful return and revenge; in this morality play, the US supreme court, besieged with accusations of being undemocratic, can now play the savior by putting him back on the ballot and making the people Trump’s ultimate judge.Some liberals also fuss about the political fallout of the decision, worried that barring Trump from running will provoke chaos and violence. And the left, suspecting a “liberal plot against democracy”, is not happy either: they reproach the liberals who welcome Trump’s disqualification for wanting to short-circuit the political process – thereby revealing deep distrust of democracy or at least defeatism about confronting Trump in an open contest. All these concerns are mistaken.The Colorado supreme court comprehensively refuted Trump’s claims, especially the ones bordering on the absurd. The justices patiently argued that parties cannot make autonomous, let alone idiosyncratic, decisions about who to put on the ballot – by that logic, they could nominate a 10-year-old for the presidency. They also painstakingly took apart the idea that the now famous section three of the 14th amendment covers every imaginable official expectation of the president. In terms clearly tailored to appeal to justices on the US supreme court, they explain that plain language and the intent of the drafters of the amendment suggest that insurrectionists – including ones at the very top – were not supposed to hold office again, unless Congress voted an amnesty with a two-thirds majority.The court’s majority also made the case that the House of Representatives’ January 6 report is not some partisan attack on poor Trump and hence could be admitted as evidence; they then drew on that evidence to show that Trump had clearly engaged in insurrection; they did not have to prove that Trump himself had led it (of course, he didn’t valiantly enter the Capitol to “save democracy” – his words – but tweeted the revolution from the safety of the White House).We know that few Maga supporters will be swayed by the evidence – in fact, the entry ticket to Trump’s personality cult is precisely to deny that very evidence. But it is more disturbing that liberals still think that prudence dictates that Trump should run and just be defeated at the polls.For one thing, the same liberals usually profess their commitment to the constitution – and the Colorado court has given an entirely plausible reading of that very document. Should it simply be set aside because supporters of a self-declared wannabe dictator threaten violence?Some liberals also appear to assume that, were Trump to lose in November 2024, their political nightmare would stop. But someone who has not accepted defeat before, doubled down on the “big lie”, and ramped up authoritarian rhetoric is not likely to just concede. Would the logic then still be that, even if the law says differently, Maga supporters must somehow be appeased?The more leftwing critique is the most interesting. Liberals are charged with having a Mueller moment again. By trusting courts to save democracy, they reveal how little faith they have in the people; they appear to hope that, magically, wise old men (it’s usually men) like Robert Mueller, acting for more or less technocratic “institutions”, will solve a challenge through law when it should be solved politically.The only question is: by that logic, are any measures meant to protect democracy but not somehow involving the people as a whole as such illegitimate? Had Trump been impeached after January 6, would anyone have made the argument that this was the wrong process and that he just should keep running in elections no matter what?Countries other than the US are more comfortable with the notion that politicians or parties expected to destroy democracy should be taken out of the democratic game. The threshold for such a decision has to be very high – clearly, there’s a problem if attempts to save democracy are themselves undemocratic. Here the Colorado decision is more vulnerable: as one of the dissenting judges pointed out, Trump might not have been given due process; even prosecutor Jack Smith, a master legal chess player, is not going after Trump for insurrection.Three factors can mitigate anxieties about undemocratic measures to save democracy, though: one is that, before a drastic decision like disqualification is taken, an individual has to exhibit a very consistent pattern of wanting to undermine democracy. Check, for Trump.Second, there has to be some room for political judgment and prudence: disqualification is not automatic and not for life; in theory, Congress could pass an amnesty for Trump in the name of democratic competition.Third, banning a whole party can rightly make citizens with particular political preferences feel that their voices are silenced; in this case, though, no one is removing the Republican party. And, of course, two Trump epigones remain on the ballot.
    Jan-Werner Müller is a professor of politics at Princeton University. He is also a Guardian US columnist More

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    Americans are hoping the courts will spare them an electoral reckoning with Trump | Lawrence Douglas

    “This is how dictatorships are born.” Such was Donald Trump’s response to news that the Colorado supreme court had ruled that the former president is disqualified from holding office and so should be removed from the state’s Republican primary ballot.Anytime Trump speaks of “dictatorships” these days we should pay attention. He has all but declared his intention to engage in dictatorial rule should he win in 2024. It isn’t clear, then, whether his statement, in a fund-raising missive fired off minutes after the news broke, was meant as a condemnation of the ruling or a prediction of how he would handle such legal setbacks should he be returned to the White House.The specter of a dictatorial Trump using the presidency to deform the rule of law into a tool of political punishment explains why millions of Americans continue to cling to the hope that our court system will spare us an electoral reckoning with Trump. Biden continues to suffer from inexplicably weak polling numbers while Trump has managed to turn criminal counts into a fund-raising juggernaut. None of this translates into Trump’s defeating Biden in the national popular vote in 2024. But, as we all know, he doesn’t have to. Our grossly defective Electoral College could once again hand Trump the presidency.And so the hope that our court system will insulate us from the infirmities of our electoral system and our own failings as democratic citizens. Yet, however understandable, the hope will find no answer in yesterday’s ruling. This is not because the Colorado supreme court reached the wrong decision.Indeed, the ruling, which turned on the court’s interpretation of the insurrection clause of the 14th amendment, was brave and correct. A lower Colorado court had already concluded that Trump had engaged in insurrection on 6 January 2021, but had concluded that the 14th amendment’s bar against insurrectionists from holding office did not apply to the presidency.The Colorado supreme court had little trouble rejecting this latter conclusion. To argue, the court observed, that the 14th amendment, ratified in the wake of the civil war, “disqualifies every oath-breaking insurrectionist except the most powerful one and that it bars oath breakers from virtually every office, both state and federal, except the highest one in the land” would be utterly nonsensical (italics in original).And so the court concluded that Trump is “disqualified from holding the office of the President” and instructed the Colorado secretary of state to remove his name from the presidential primary ballot.Admittedly, the seven-member court was divided, with three dissenters questioning whether Trump can be disqualified without having first been convicted of engaging in insurrection. The court itself stayed its own ruling until early 2024, anticipating Trump’s already announced appeal. And so this explosive issue will all but inevitably land in the lap of the US supreme court.How will the court act? In an ideal world, it would uphold the Colorado ruling and would do so unanimously. Only a unanimous decision, handed down by a court composed of three Trump appointees – Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett – and one, the ethically-challenged and ideologically-rigid Clarence Thomas, whose spouse was a committed ‘stop the steal” activist, could possibly weather the storm of protest and civil unrest that such a historic ruling would trigger.Alas, no such ruling will issue from this supreme court. This court will predictably toss out the Colorado decision, insisting that Trump’s name be placed back on the ballot. I say this not because the court is necessarily beholden to Trump, but because, already suffering from historically low and largely self-inflicted approval ratings (see its ruling in Dobbs, eliminating the constitutional right to abortion; and Bruen, elevating gun ownership to a fundamental right), it will hide behind judicial modesty, insisting that voters and not unelected judges, should have the final say about Trump’s fitness for office.Still, in refusing to intervene, the court will be unable to escape the damaging appearance of extreme partisanship. The court has already been asked to review Trump’s claim that he enjoys “absolute immunity” from prosecution, an argument, which, if accepted, would derail his Washington DC federal trial, tentatively scheduled to begin on 4 March 2024, for conspiring to defraud the United States by seeking to overturn the results of the 2020 presidential election. And it has already agreed to review the scope of the charge that January 6 insurrectionists obstructed an official proceeding, a matter also central to the federal case against Trump.While it’s hard to imagine the court accepting Trump’s unsustainably broad immunity argument, it’s easier to imagine it ruling in a manner that might work to the benefit of Trump’s tried and true legal strategy of delay, delay, delay. So while the supreme court might dodge a reckoning with Trump, there will be no escape for the American people.
    Lawrence Douglas is the author, most recently, of Will He Go? Trump and the Looming Election Meltdown in 2020. He is a contributing opinion writer for the Guardian US and teaches at Amherst College More