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      Supreme court rejects Trump bid to shield documents from January 6 panel

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      Supreme court rejects Trump bid to shield documents from January 6 panelCourt’s move leaves no legal impediment to turning National Archives documents over to congressional committee The US supreme court has rejected a request by Donald Trump to block the release of White House records to the congressional committee investigating the deadly January 6 attack on the Capitol, dealing a blow to the former president.The order, which casts aside Trump’s request to stop the House select committee from obtaining the records while the case makes its way through the courts, means more than 700 documents that could shed light on the attack can be transferred to Congress.The only member of the high court who signaled he would have granted Trump’s request for an injunction was justice Clarence Thomas. The order did not provide a reasoning for turning down the application, which is not uncommon for requests for emergency stays.Trump’s defeat in court allows the select committee to obtain from the National Archives some of the most sensitive White House records from his administration, including call logs, daily presidential diaries, handwritten notes and memos from his top aides.The documents, which Trump tried to shield behind claims of executive privilege, also included materials in the files of his former White House chief of staff Mark Meadows, deputy counsel Pat Philbin and advisor Stephen Miller.“These records all relate to the events on or about January 6, and may assist the Select Committee’s investigation into that day,” justice department attorneys, acting on behalf of chief archivist David Ferriero, wrote in an earlier filing.The supreme court’s action, which follows the earlier rejection of Trump’s request by two lower courts, is also likely to have a cascading effect on other lawsuits filed against the panel, which hinged on the success of Trump’s pending litigation.Lawyers for Trump had urged the supreme court to take the case as they disagreed with the unanimous ruling of the US appeals court for the DC circuit that the current president Joe Biden could waive executive privilege over the objections of a former president.The lower court rulings directing the National Archives to turn over the records “gut the ability of former presidents to maintain executive privilege over the objection of an incumbent, who is often, as is the case here, a political rival”, they said.Trump’s legal team argued that the select committee also lacked a legitimate, legislative need for seeking the documents and was instead engaged in a partisan investigation seeking evidence to cause political damage to the former president.“These sweeping requests are indicative of the committee’s broad investigation of a political foe, divorced from any of Congress’s legislative functions,” Trump’s lawyers said of the panel.But in an unsigned opinion, the nation’s highest court rejected those arguments, upholding the appellate court ruling that found that although Trump had some limited power to exercise executive privilege, it was not sufficient to overcome Biden’s waiver.The court cited a 1977 supreme court decision in a dispute between former president Richard Nixon and the National Archives, which said the sitting president was in the best position to decide whether the protection should be asserted.The appeals court said that as long as the select committee could cite at least one legislative purpose for the documents – reforming laws to prevent a repeat of January 6, for instance – that would be enough to justify its request for Trumps’ records.The select committee has also rebutted Trump’s claim that forcing the National Archives to hand over White House documents could discourage future presidential aides from providing candid advice.That argument was misguided, the select committee said, because the conduct by Trump and some of his most senior aides under investigation went far beyond any usual deliberations concerning a president’s official duties.Moments after the supreme court handed down its decision, investigators working in the select committee’s offices on Capitol Hill were heard clapping in celebration, just as the panel subpoenaed more individuals connected to the January 6 insurrection.In its latest investigative action, the panel issued subpoenas to far-right Trump activists Nicholas Fuentes and Patrick Casey who received thousands of dollars in funds potentially connected to illegal activity and the Capitol attack.The new subpoenas demanding documents and testimony from Fuentes and Casey suggest the panel is drawing closer to the source of funding for the rallies that preceded the Capitol attack and the coordinated travel plans of thousands of pro-Trump rioters.Congressman Bennie Thompson, the chairman of the select committee, said that House investigators are interested in the pair since they were intimately involved in the transfer of money surrounding the Capitol attack and were present on Capitol grounds on January 6.The select committee said in the subpoena letters that Fuentes and Casey led the “America First” or “Groyper” movement and promulgated lies about voter fraud as they sought to stop the certification of Joe Biden’s election win and get Trump a second term.TopicsDonald TrumpUS supreme courtLaw (US)Trump administrationUS Capitol attackUS politicsnewsReuse this content More

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      US supreme court blocks Biden’s workplace vaccine-or-test rules

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      US supreme court blocks Biden’s workplace vaccine-or-test rulesCourt says vaccine mandate for healthcare workers is validPresident to purchase another 550m at-home Covid tests The supreme court on Thursday blocked the Biden administration from enforcing a requirement that employees at large businesses be vaccinated against Covid-19 or undergo weekly testing and wear a mask on the job.Sinema speaks out against filibuster reform after House sends voting rights bill to Senate – liveRead moreAt the same time, the court is allowing the administration to proceed with a vaccine mandate for most healthcare workers in the US.The court’s conservative majority concluded the administration overstepped its authority by seeking to impose the Occupational Safety and Health Administration’s (Osha) vaccine-or-test rule on US businesses with at least 100 employees. More than 80 million people would have been affected.“Osha has never before imposed such a mandate. Nor has Congress. Indeed, although Congress has enacted significant legislation addressing the Covid-19 pandemic, it has declined to enact any measure similar to what Osha has promulgated here,” the conservatives wrote in an unsigned opinion.In dissent, the court’s three liberals argued that it was the court that was overreaching by substituting its judgment for that of health experts. “Acting outside of its competence and without legal basis, the court displaces the judgments of the government officials given the responsibility to respond to workplace health emergencies,” Justices Stephen Breyer, Elena Kagan and Sonia Sotomayor wrote in a joint dissent.When crafting the Osha rule, White House officials always anticipated legal challenges – and privately some harbored doubts that it could withstand them. The administration nonetheless still views the rule as a success at already driving millions of people to get vaccinated and for private businesses to implement their own requirements that are unaffected by the legal challenge.Both rules had been challenged by Republican-led states. In addition, business groups attacked the Osha emergency regulation as too expensive and likely to cause workers to leave their jobs at a time when finding new employees already is difficult.The vaccine mandate that the court will allow to be enforced nationwide covers virtually all healthcare workers in the country. It applies to healthcare providers that receive federal Medicare or Medicaid funding, potentially affecting 76,000 health care facilities as well as home health care providers. The rule has medical and religious exemptions.Earlier on Thursday, Biden announced plans to send 1,000 military medical personnel to hospitals and medical facilities, the president said on Thursday, as he announced plans to purchase another 500m at-home Covid tests.The military members will begin arriving in states across the country next week, amid a surge in cases largely attributed to the Omicron variant. This week a top government official admitted it was likely that most Americans would be infected with the coronavirus.Biden to meet Senate Democrats in bid to revive voting rights pushRead moreOn Tuesday the US recorded a record number of hospitalisations due to Covid-19 as daily infections soared to more than 1.35m. A test kit shortage across the country continues to hamper efforts to control the Omicron variant, but a silver lining has emerged, with signs that Omicron may be peaking in parts of the north-east.In New York City the number of new cases has flattened in recent days, the New York Times reported, while New Jersey and Maryland have seen a slight decrease in the number of infections.“Every case is one too many, but if you watch the trend line, it looks like we may be cresting over that peak,” Kathy Hochul, governor of New York, said in a briefing this week.“We are not at the end, but this is a glimmer of hope when we desperately need that.”Speaking at the White House on Thursday, Biden said his administration would double its order of home test kits, which will be delivered free of charge to Americans, to 1bn.The White House announced it would purchase 500m tests in December, but those tests are yet to be distributed.“I know we’re all frustrated as we enter this new year,” Biden said, as he noted that virus cases have reached new heights. But he insisted that it remains “a pandemic of the unvaccinated”.Biden said a website where people can request tests will launch next week. The president also announced that, for the first time, his administration was planning to make high-quality N95 masks, which are most effective at preventing transmission of the virus, available free.The 1,000 members of the military will help mitigate staffing crunches at hospitals across the country, Biden said, with many facilities struggling because their workers are in at-home quarantines due to the virus at the same time as Covid-19 cases have surged.They will supplement the more than 800 military personnel who have already been helping civilian hospitals since Thanksgiving, and the more than 14,000 national guard members who are assisting with testing and vaccinations.This week Janet Woodcock, the acting head of the Food and Drug Administration, said most Americans were likely to contract coronavirus.“I think it’s hard to process what’s actually happening right now, which is [that] most people are going to get Covid, all right?” Woodcock said.Biden also announced that six additional military medical teams will be deployed to hospitals in Michigan, New Jersey, New Mexico, New York, Ohio and Rhode Island.The US leads the world in the daily average number of new infections reported, accounting for one in every three infections reported worldwide, according to a Reuters tally.TopicsUS politicsCoronavirusJoe BidenUS supreme courtnewsReuse this content More

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      The ‘stench’ of politicization: Sonia Sotomayor’s supreme court warning

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      The ‘stench’ of politicization: Sonia Sotomayor’s supreme court warningOral arguments over the Mississippi abortion case this week showed the threat to Roe v Wade from an increasingly politicized court About 11 minutes into this week’s hearing on abortion rights at the US supreme court, the floor was taken by Sonia Sotomayor, one of the three beleaguered liberal-leaning justices left on the court after its sharp rightward shift under Donald Trump.‘It’s earth-shattering’: Democrats and allies vow midterm fight over abortionRead moreSotomayor began by noting that in the past 30 years no fewer than 15 justices of all political backgrounds had supported the right to an abortion up to the point of fetal viability. Only four had objected.Now after so many years of relative consensus, the legality of abortion enshrined in the landmark 1973 ruling Roe v Wade and reaffirmed in 1992 in Planned Parenthood v Casey was suddenly on the line.Politicians in Mississippi, Sotomayor remarked (while leaving it unsaid that they were rightwing Republicans), had devised new legislation to ban abortions after just 15 weeks of pregnancy. By these politicians’ own admission, their bills were targeted specifically at the three new justices on the supreme court (all appointed by Trump, though she left that unspoken too).Then she went in for the kill.She addressed the danger posed by the court’s sudden and apparently politically motivated change of heart not just to abortion rights but to the rule of law itself.If the nation’s highest court, with its newly constituted Trumpian majority, were to go along with the ploy set for it by Mississippi and throw out half a century of settled law affirming a woman’s right to choose, then what would happen to the court’s legitimacy as a place in American democracy that rises above the cut and thrust of grubby partisanship?“Will this institution survive the stench that this creates in the public perception that the constitution and its reading are just political acts?” she said. “I don’t see how it is possible.”Stench. The word ricocheted off the august walls of the courtroom like a bullet.“It was a shocking moment,” said Sherrilyn Ifill, director-counsel of the NAACP Legal Defense Fund. “An unadorned recognition of the legitimacy issues that are clearly preoccupying a number of the justices.”For Stephen Vladeck, a professor of constitutional law at the University of Texas at Austin, the takeaway of this week’s hearing was not how many justices were preoccupied with the reputational damage facing an increasingly politicised court, but how few. “To me, the single most distressing feature of Justice Sotomayor’s arguments was how little anyone else seemed to care,” he told the Guardian.Vladeck said he was dismayed by the “casualness with which so many of the justices seemed to be taking an issue that is so central to so many women. A ruling that gets rid of Roe would be enormously damaging in the eyes of millions of Americans, yet some of the conservative justices don’t seem to think that’s important.”The perception of nonchalance towards the integrity of the court among the six conservative justices now in the majority is striking. In advance of last week’s supercharged hearing, several of those same justices bent over backwards to try to convince the American people that they are neutral servants of the constitution.The three justices appointed by Trump have been especially keen to portray themselves as having not a partisan bone in their body. Neil Gorsuch, Trump’s first of the three appointments, insisted in September 2019 that it was “rubbish” to imply that the justices were “like politicians with robes”.More recently Amy Coney Barrett, another of Trump’s triumvirate of appointees, told an audience in Kentucky that the supreme court was not “comprised of a bunch of partisan hacks”. But she was speaking at the McConnell Center at the University of Louisville and was introduced at the event by the politician after whom the venue is named – Mitch McConnell, the top Republican in the US Senate. It was his shenanigans, blocking Merrick Garland’s confirmation to the court in 2016 on grounds that it was in an election year then rushing through Barrett’s confirmation much closer to election day in 2020, that gave Trump his three picks.But it is the third of Trump’s supreme court proteges, Brett Kavanaugh, whose position is perhaps most glaring. During his confirmation process in 2018 Kavanaugh went to great lengths to underline his respect for the decisions made by his predecessors on the court, and for the legal doctrine known as stare decisis, which requires justices to honor past rulings in all but exceptional cases.Kavanaugh assured senators worried about his stance on abortion that he saw Roe v Wade as “settled law”.He went even further in his conversations with Susan Collins, the relatively moderate Republican senator from Maine on whose vote Kavanaugh depended. When she announced her decision to back him for the supreme court, she revealed what he had said to her during private conversations.“There has been considerable … concern that Judge Kavanaugh would seek to overturn Roe v Wade,” she said. “Protecting this right is important to me. As Judge Kavanaugh asserted to me, a long-established precedent is not something to be trimmed, narrowed, discarded or overlooked.”But when it came round to Kavanaugh’s turn to speak in this week’s debate he read out a long list of supreme court cases in which prior precedents had been overturned. He left observers with the clear impression that he was preparing to do precisely what he promised Collins and her fellow senators that he would not do – run roughshod over a pillar of constitutional law.The pointed interventions of the Trump justices and their conservative peers in this week’s hearing have led most observers convinced that abortion rights in the US are likely to be grossly restricted or abolished outright when the court rules next June. That would be uncannily as Trump himself had predicted.In a televised debate during the 2016 presidential race, Trump was asked by the Fox News host Chris Wallace whether he wanted the court, including any justices he might appoint as president, to overturn the right to an abortion. He replied: “I am pro-life, and I will be appointing pro-life judges. I would think that that will go back to the individual states.”Trump did go on to appoint anti-abortion judges, and they are now poised to send control back to individual states, 21 of which currently have laws in place that would effectively ban abortions overnight were Roe v Wade overturned.Vladeck fears that the vast and growing disconnect between what the conservative justices say they are doing – impartially and faithfully upholding the law of the land, and what they are actually doing – playing along with the machinations of politicians in states like Mississippi, bodes very ill for the legitimacy of the court.In the long run it could also harm America’s future as a country of laws.“Public perception matters,” he said. “The more the court appears to be guided by contemporary partisan preferences as opposed to permanent legal principles, the harder it will be for millions of Americans on the wrong side of these cases to understand why they should be bound by them.”TopicsUS politicsUS supreme courtLaw (US)AbortionnewsReuse this content More

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      Abortion rights advocates vow to fight on after supreme court hearing

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      Abortion rights advocates vow to fight on after supreme court hearingLeaders say they will look to statehouses and lower courts if justices allow undermining of Roe v Wade In the wake of Wednesday’s supreme court hearing in which a majority of justices appeared willing to significantly curb abortion rights, reproductive rights advocates said they would continue to fight in statehouses and lower courts for the right to choose.The supreme court heard oral arguments in Dobbs v Jackson Women’s Health Organization, widely regarded as the most important abortion rights case in nearly five decades.The case before the court pits Jackson Women’s Health Organization, Mississippi’s last abortion clinic, also known as the “Pink House”, against the state health director, Dr Thomas Dobbs. A decision is expected in June 2022.Conservative US supreme court justices signal support for restricting abortion in pivotal caseRead moreMississippi intends to ban abortion after 15 weeks of pregnancy, a move blocked so far by lower courts.While a significant blow to abortion rights is far from a foregone conclusion, questions from the supreme court’s conservative justices on Wednesday appeared to show a willingness to allow restrictions on abortion at 15 weeks and perhaps earlier in a pregnancy.The case also requests the court overturn Roe v Wade, the landmark 1973 supreme court decision that established a constitutional right to abortion and is the only safeguard for such rights in dozens of conservative US states.Under present law, pregnant people have a right to terminate a pregnancy up to the point a fetus can survive outside the womb, widely regarded as 24 weeks gestation. A full-term pregnancy is considered 39 weeks gestation.In a consensus shared across the political spectrum, at least five justices appeared divided over whether to significantly curb or overturn Roe v Wade.Six of the nine justices lean to the right, with three of them nominated by Donald Trump during his one-term presidency. “Congress could fix the issue right now,” said Nancy Northup, president and CEO of the Center for Reproductive Rights (CRR), the organization that represented abortion providers in the supreme court on Wednesday.Although abortion was legalized in 1973 and has been relied upon by women nationally since then, Congress has never affirmed the right to abortion in legislation. That left the Roe v Wade precedent as the principle protection of the option for termination, while anti-abortion campaigners have brought many legal challenges and also pushed laws undermining access to the procedure.“All these bans and undue burdens in abortion care would be addressed by the Women’s Health Protection Act,” Northup said, referring to a bill recently passed by the US House of Representatives. “That would make sure women can access abortion without unnecessary bans.”Thus far, the bill has been viewed as highly unlikely to pass into law because it would need to overcome the Senate filibuster rule, requiring a 60-vote majority in the evenly divided chamber, where the Republicans would oppose it.Joe Biden said on Wednesday: “I support Roe v Wade. I think it’s a rational position to take.”Julie Rikelman, CRR’s litigation director, who argued before the justices, said campaigners would continue to fight if the supreme court went against reproductive choice. “We will continue to make every argument we can in the federal courts, we will continue to litigate in the state courts … we will not stop fighting, because it is just too important,” Rikelman said.Shannon Brewer, the director of the Pink House, said the coming months would be tough, with her providers “sitting and waiting and twiddling our thumbs” in anticipation of a decision.“It was a difficult day for everybody [but] I listened to the arguments and I think they did a great job at representing women today,” Brewer said.Following what was widely viewed as a hearing favorable to anti-abortion forces, conservatives chimed in.“What we want to see is the court do the right thing and overturn Roe,” said Chip Roy, a Republican US representative from Texas. He decried fears over a threat to choice as a “wailing and gnashing of teeth from the left”.Sam Brownback, the former US ambassador at large for international religious freedom under Trump, said it was time to overturn Roe “and let states address the issue”.Overturning Roe v Wade would effectively return the issue to be decided at state level, where swaths of the south and midwest would be “certain or likely” to ban most abortion. Already, several states have banned abortion at six weeks, though all those laws have been blocked by courts, with the prominent exception of Texas.Some reproductive rights advocates remained optimistic.Schaunta James-Boyd, co-executive director of Trust Women, an organization dedicated to providing abortions in underserved states, said her group “look[s] forward to a positive outcome later in 2022”.The pressure to legislate an affirmative right to abortion in states not openly hostile is likely to increase as a supreme court decision nears. While 26 states are “certain or likely” to outlaw abortion if Roe v Wade were overturned, states such as New York and Illinois have worked to protect abortion rights. Polling shows about six in 10 Americans believe abortion should be legal in “all or most” circumstances.Meanwhile, the House speaker and California Democrat Nancy Pelosi said: “The House is committed to defending women’s health freedoms and to enshrining into law our House-passed Women’s Health Protection Act, led by Congresswoman Judy Chu, to protect reproductive health care for all women across America.”She added that the supreme court “has the opportunity and responsibility to honor the constitution, the law and this basic truth: every woman has the constitutional right to basic reproductive healthcare”.TopicsAbortionHealthGenderUS politicsUS supreme courtLaw (US)newsReuse this content More

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      Trump’s judges will call the shots for years to come. The judicial system is broken | Shira A Scheindlin

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      OpinionUS politicsTrump’s judges will call the shots for years to come. The judicial system is brokenShira A ScheindlinIn just one term, Trump was able to appoint 33% of US supreme court justices and 30% of US appellate judges. They’ll serve for life Mon 25 Oct 2021 06.15 EDTLast modified on Mon 25 Oct 2021 14.44 EDTFor many Americans, Donald Trump will be remembered as the first US president to be twice impeached, to have supported, or even incited, an insurrection against democracy, and for allowing thousands to die due to his abject failure to lead the nation in fighting the Covid-19 pandemic. But for many other Americans, his true legacy will be his enduring impact on the third branch – the federal judiciary.Americans don’t have faith in the US supreme court any more. That has justices worried | Russ FeingoldRead moreThe expansion of executive power, and the diminishment of legislative power due to partisan gridlock, is a well-known story. Governing by executive order has become the new normal. But it is the stealthy and steady rise of the power of the judicial branch that has caught many Americans off-guard.Federal judges have life tenure. Once they are appointed they remain in office until they retire or die. The president appoints every federal judge and these appointments have very long-term consequences. A look at Trump’s record of appointments reveals a relentless commitment to cementing his peculiar and idiosyncratic ideology. In short, he and his sidekick, former majority leader Mitch McConnell, did all they could to entrench an actively conservative judiciary.The numbers tell a clear story. There are a total of 816 active federal judges comprising the supreme court, the 13 appellate courts, and 91 district courts. In just one term Trump was able to appoint 28% of those judges due to past and continuing vacancies. Most importantly, he appointed 33% of America’s nine supreme court justices and 30% of the appellate judges. The vast majority of his appointments were white males – not one of his 54 appellate judges is Black. But what really stands out is the age of his appointees. The average age of his appellate judges was 47 (five years younger than those selected by Barack Obama). Six of those were in their 30s, and 20 were under 45. By contrast, of the 55 appellate judges picked by Obama – in eight years, not four – none were in their 30s and only six were younger than 45.Trump’s judicial appointments will shape American jurisprudence for decades to come. The Federal Judicial Center has found that this age disparity means that Trump judges will serve 270 more years than Obama’s judges, and they will decide thousands more cases. Moreover, the average tenure for a supreme court justice has increased from 15 years in the early 1970s to 27 years in more recent years, due in large part to the younger age of the justices at the date of appointment.The Trump legacy of judicial appointments is most apparent in the recent behavior of the supreme court. A new term has been coined – the shadow docket – which refers to the sudden uptick in emergency requests filed by the government. In the 16 years preceding the Trump presidency only eight such requests were filed, and, of those, only four were granted. By contrast, during Trump’s four-year term, 41 such applications were made, of which 24 were granted – a 70% success rate that supported Trump’s policies. These cases are heard without full briefing, without oral argument, and often result in a single-sentence order as opposed to a full reasoned opinion.One such decision overturned, by a 5-4 order, a Wisconsin trial court order allowing an extension for the receipt of absentee ballots. The last-minute supreme court decision issued the day before the election caused chaos and confusion. A second example of how the now safely pro-Trump court supported his policies involved his administration’s rule prohibiting migrants from seeking asylum in the US before seeking it in the countries through which they had travelled. The lower court suspended enforcement of this unprecedented rule, but the supreme court allowed the ban to take effect immediately even as the case proceeded through the lower courts. Another particularly disturbing example involved four death penalty cases where a lower court halted four executions because the use of pentobarbital to kill the prisoners would constitute cruel and unusual punishment. In a 5-4 ruling, issued after 2am, the stay was overturned and at least one of the executions carried out – the first federal prisoner to be executed in 17 years.Most recently, in yet another emergency appeal, the supreme court by a 5-4 margin, refused to block the newly enacted Texas law banning abortion after six weeks of pregnancy, allowing that rule to be enforced for the foreseeable future. This emergency request was brought by abortion providers after the very conservative fifth circuit court of appeals, to which Trump had appointed six judges, stopped the trial court from holding a hearing as to whether the new law could take immediate effect. A month later a trial judge blocked the law from taking effect and the fifth circuit promptly reversed. The Department of Justice is now appealing that decision to the supreme court.In each of these cases, the supreme court deprived the affected parties of a chance to be fully heard and often deprived the appellate courts of the chance to review the ruling of the trial courts. This unprecedented haste, and acquiescence to the importuning of the executive branch, gave the appearance that the supreme court was no longer an independent and co-equal branch of government but rather a partner of the Trump-led executive branch.Many Americans now question the court’s integrity and are jumping on the bandwagon of seeking supreme court reform. Proposals for reform include imposing term limits on supreme court justices to ensure that no one justice or group of justices controls the outcome of cases for decades to come. It is noteworthy that the three justices Trump appointed were 48, 49 and 53 at the time they joined the court, guaranteeing decades of influence by those justices. A variation on this proposal would require mandatory retirement by all federal judges at the age of 70 or 75.Another more controversial proposal is to expand the court. This proposal is, in part, a response to the widespread belief that two of President Obama’s appointments were stolen. The first was the vacancy caused by the death of Antonin Scalia. Obama’s nominee to fill that seat was stonewalled by Republicans for 10 months, purportedly due to the proximity to the upcoming presidential election, while the second was the record-breaking speedy confirmation of Amy Coney Barrett just days before a presidential election.Other proposals include reform of the shadow docket by requiring briefing, argument, and a reasoned opinion on all emergency matters; imposing a code of conduct and ethics on supreme court justices similar to that binding lower court judges; requiring a 6-3 super-majority before finding a federal statute unconstitutional; and requiring that Congress consider any presidential nomination within a fixed period of time – perhaps 45 days after nomination.The growing support for some or all of these reforms by many non-partisan organizations, academics, and Democratic politicians, is a response to the discontent created by Trump’s unprecedented manipulation of the appointment process for federal judges, designed to ensure that his politics and policies will control the lives of future generations. Trump’s brazen capture of the supreme court, engineered with the help of the Republican Senate majority, requires a bold response. If reform efforts fail, which is likely given the arcane Senate rules, Trump will have succeeded in entrenching his regressive, if not destructive, political agenda. This may be good for Trump’s legacy but it is surely bad for the country.
      Shira A Scheindlin is a former United States district judge for the southern district of New York. She is the co-chair of the board of the Lawyers Committee for Civil Rights Under Law and a board member of the American Constitution Society
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      Trump files lawsuit to block release of Capitol attack records

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      US Capitol attackTrump files lawsuit to block release of Capitol attack recordsEx-president challenges Biden’s decision to waive executive privilege that protects White House communications Associated Press in WashingtonTue 19 Oct 2021 04.38 EDTLast modified on Tue 19 Oct 2021 04.55 EDTDonald Trump has sought to block the release of documents related to the Capitol attack on 6 January to a House committee investigating the incident, challenging Joe Biden’s initial decision to waive executive privilege.In a federal lawsuit, the former president said the committee’s request in August was “almost limitless in scope” and sought many records that were not connected to the siege.He called it a “vexatious, illegal fishing expedition” that was “untethered from any legitimate legislative purpose”, according to the papers filed in a federal court in the District of Columbia.Bannon and other top Trump officials face legal peril for defying subpoenasRead moreTrump’s lawsuit was expected – as he had said he would challenge the investigation – and at least one ally, Steve Bannon, has defied a subpoena.But the legal challenge went beyond the initial 125 pages of records that Biden recently cleared for release to the committee.The suit, which names the committee as well as the National Archives, seeks to invalidate the entirety of the congressional request, calling it overly broad, unduly burdensome and a challenge to separation of powers. It requests a court injunction to bar the archivist from producing the documents.The Biden administration, in clearing the documents for release, said the violent siege of the Capitol more than nine months ago was such an extraordinary circumstance that it merited waiving the privilege that usually protected White House communications.Trump’s lawsuit came the evening before the panel was scheduled to vote to recommend that Bannon be held in criminal contempt of Congress for his defiance of the committee’s demands for documents and testimony.In a resolution released on Monday, the committee asserts that the former Trump aide and podcast host has no legal standing to rebuff the committee, even as Trump’s lawyer has asked him not to disclose information.Bannon was a private citizen when he spoke to Trump before the attack, the committee said, and Trump had not asserted any such executive privilege claims to the panel.The resolution lists many ways in which Bannon was involved in the lead-up to the insurrection, including reports that he encouraged Trump to focus on 6 January, the day Congress certified the presidential vote, and his comments on 5 January that “all hell is going to break loose” the next day.“Mr Bannon appears to have played a multifaceted role in the events of January 6th, and the American people are entitled to hear his first-hand testimony regarding his actions,” the committee wrote.Once the committee votes on the Bannon contempt resolution, it will go to the full House for a vote and then on to the justice department, which will decide whether to prosecute.In a letter obtained by the Associated Press, the White House also worked to undercut Bannon’s argument. The deputy counsel, Jonathan Su, wrote that the president’s decision on the documents applied to Bannon, too, and “at this point we are not aware of any basis for your client’s refusal to appear for a deposition.“President Biden’s determination that an assertion of privilege is not justified with respect to these subjects applies to your client’s deposition testimony and to any documents your client may possess concerning either subject,” Su wrote to Bannon’s lawyer.Bannon’s attorney said he had not yet seen the letter and could not comment on it.While Bannon has said he needs a court order before complying with his subpoena, the former White House chief of staff Mark Meadows and former White House and Pentagon aide Kashyap Patel have been negotiating with the committee. It is unclear whether a fourth former White House aide, Dan Scavino, will comply.The committee has also subpoenaed more than a dozen people who helped plan Trump rallies before the siege, and some of them have said they would turn over documents and give testimony.Lawmakers want the testimony and the documents as part of their investigation into how a mob of Trump supporters stormed the Capitol building in a violent effort to halt the certification of Biden’s election win.The committee demanded a broad range of executive branch papers related to intelligence gathered before the attack, security preparations during and before the siege, the pro-Trump rallies held that day and Trump’s false claims that he won the election, among other matters.Trump’s lawsuit says the “boundless requests included over 50 individual requests for documents and information, and mentioned more than 30 individuals, including those working inside and outside government”.The files must be withheld, the lawsuit says, because they could include “conversations with (or about) foreign leaders, attorney work product, the most sensitive of national security secrets, along with any and all privileged communications among a pool of potentially hundreds of people”.The suit also challenges the legality of the Presidential Records Act, arguing that allowing an incumbent president to waive executive privilege of a predecessor just months after they left office is inherently unconstitutional.Biden has said he would go through each request separately to determine whether that privilege should be waived.While not spelled out in the constitution, executive privilege has developed to protect a president’s ability to obtain candid counsel from his advisers without fear of immediate public disclosure and to protect his confidential communications relating to official responsibilities.But that privilege has had its limitations in extraordinary situations, as exemplified during the Watergate scandal, when the supreme court ruled it could not be used to shield the release of secret Oval Office tapes sought in a criminal inquiry, and after 9/11.Monday’s lawsuit was filed by Jesse Binnall, an attorney based in Alexandria, Virginia, who represented Trump in an unsuccessful lawsuit last year seeking to overturn Biden’s victory in Nevada. Trump and his allies have continued to make baseless claims about voter fraud in the 2020 election.Trump’s suit quotes from the supreme court’s 2020 ruling in a case by House committees seeking the then sitting president’s tax returns and other financial records. But that case involved courts enforcing a congressional subpoena. The high court in that case directed lower courts to apply a balancing test to determine whether to turn over the records. It is still pending.The White House spokesperson Mike Gwin said: “As President Biden determined, the constitutional protections of executive privilege should not be used to shield information that reflects a clear and apparent effort to subvert the constitution itself.”The select committee did not have immediate comment.TopicsUS Capitol attackDonald TrumpUS elections 2020US politicsJoe BidenTrump administrationBiden administrationnewsReuse this content More

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      The courts have a new chance to block Texas’s abortion law. They must take it | Laurence Tribe, Erwin Chemerinsky, Jeffrey Abramson and Dennis Aftergut

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      OpinionUS supreme courtThe courts have a new chance to block Texas’s abortion law. They must take itLaurence H Tribe, Erwin Chemerinsky, Jeffrey Abramson and Dennis AftergutSB 8 not only stripped Texan women of their rights under Roe v Wade, it made a mockery of the US constitution and the supremacy of the federal courts Sun 17 Oct 2021 06.24 EDTLast modified on Sun 17 Oct 2021 06.25 EDTSadly, predictably and appallingly, on October 14, a three judge panel of the US court of appeals for the fifth circuit has allowed Texas’s “Bounty-Hunter” anti-abortion law to go back into effect while the court considers the case on the merits. Every day that the fifth circuit panel’s unlawful order keeps the statute in operation brings irreversible injury to women in Texas. US Attorney General Merrick Garland has properly decided to seek emergency relief from the US supreme court.The justice department is right to accuse the State of Texas of seeking to destroy not only abortion rights but also the foundation of our constitutional Republic. In a nation whose history is fraught with battles between states’ rights and national sovereignty, the case of United States v Texas raises issues basic to our national compact.Texas set the current controversy in motion by passing SB8, an anti-abortion law that legislators knew was unconstitutional. In doing so, they violated what Chief Justice Marshall explained two centuries ago was the bedrock of our young nation’s rule of law – that our constitution reigns supreme.“Senate bill 8 (SB8) flouts that principle,” Monday’s DoJ brief in the fifth circuit reads. The law does that “by blatantly violating constitutional rights and severely constraining judicial review of its unconstitutional restrictions.” That “sets this case apart.”Put bluntly, Texas has sought not only to virtually eliminate women’s rights under Roe v Wade, but also to reduce our Constitution’s supremacy to a relic. Those twin dangers are why the stakes are high in the suit by the United States to enjoin the Texas anti-abortion statute. And that’s why the October 14 Fifth Circuit order keeping the law in effect is so troubling.This case stands on a very different footing from the one that a conservative 5-4 supreme court rejected on September 1 on procedural grounds. With the United States now suing, there is plenty of precedent for the federal government to come into court challenging a state law before it is enforced, and a state cannot hide behind sovereign immunity as a defense. The cases that the fifth circuit cited on Friday as reasons for refusing to block SB8 were entirely inapplicable because they have no relevance to a suit brought by the United States to force a recalcitrant state to obey the constitution. Texas’s reason for not arguing SB8’s constitutionality is obvious. The supreme court has affirmed many times since Roe v Wade in 1973 that states cannot prohibit abortions before the fetus is viable and capable of surviving outside the womb. Viability occurs at about the 24th week of pregnancy.Nonetheless, Texas’s law makes all abortions illegal, without exceptions for rape or incest, once fetal cardiac activity can be detected – usually around six weeks after a woman’s last menstrual period.The fact that the law is enforced by vigilantes’ private civil suits rather than by government prosecutions only aggravates its unconstitutionality. It is a Texas law that opens Texas courts to these bounty-hunting lawsuits. Since 1948, it has been settled law that individuals may not use state courts to deprive others of constitutional rights.On Wednesday, 6 October, in a 113-page opinion, with some of the strongest language ever heard from a federal judge, US district court Judge Robert Pitman blocked Texas from enforcing this near-total ban on abortions. Judge Pitman’s opinion explained that Texas concocted a transparent “scheme” to “end run” the constitution. The court laid out the elaborate “machinations” Texas devised to avoid a court doing anything about a clearly unconstitutional law.Judge Pitman also documented cases of women – sometimes minors – suffering “grievous wrong”, as they are forced to carry unwanted pregnancies or travel, if they can afford it, to another state to access their constitutional rights: “The court can only speculate as to the hardships” these women have “had to endure”.Having temporarily reinstated SB 8, the Fifth Circuit noted that it will expedite review of the merits of Judge Pitman’s decision. That could affect the supreme court’s consideration of emergency relief to the United States. Whether now or later, this case will land on the court’s docket. Even justices who disagree with Roe v Wade should recognize the dire implications of letting any state deliberately design a blatantly unconstitutional statute in such a way that no court can block its enforcement until it’s too late to prevent the statute from doing irreparable harm by deterring people from exercising their rights.In the 1950s, states tried to disregard supreme court decisions interpreting the constitution when they engaged in a concerted effort to thwart desegregation orders. Then, too, the United States government interceded against the states. When the Arkansas governor Orval Faubus attempted to block desegregation, the supreme court, in Cooper v Aaron, unanimously and emphatically reaffirmed the supremacy of the constitution and federal law.The court declared: “No state legislator or executive or judicial officer can war against the constitution without violating his undertaking to support it.” All nine justices joined in declaring: “If the legislatures of the several states may, at will, annul the judgments of the courts of the United States, and destroy the rights acquired under those judgments, the constitution itself becomes a solemn mockery.”That would be the result if Texas could destroy the constitutional rights of women before any court could enjoin its devious scheme. To ensure the constitution remains the supreme law of the land, and to protect all rights it guarantees, the fifth circuit and the supreme court must uphold Judge Pitman’s injunction.
      Laurence H Tribe is the Carl M Loeb University Professor emeritus and a professor of constitutional law emeritus at Harvard Law School. Erwin Chemerinsky is the dean of the School of Law at the University of California, Berkeley. Jeffrey Abramson is Professor of Law and Government at the University of Texas, Austin. Dennis Aftergut is a former federal prosecutor
      TopicsUS supreme courtOpinionUS politicsLaw (US)AbortioncommentReuse this content More