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      US supreme court backs police officer in workplace sex discrimination lawsuit

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      The US supreme court on Wednesday gave a boost to a St Louis police officer who sued after claiming she was transferred to an undesirable new job because of her sex, in a case testing the scope of federal workplace protections.The 9-0 ruling by the justices threw out a decision by a lower court to dismiss the lawsuit brought by the officer, Jatonya Muldrow, and directed it to reconsider the matter.At issue in the case is whether federal law banning workplace bias requires employees to prove that discrimination caused them tangible harm such as a pay cut, demotion or loss of job.Muldrow has claimed she was transferred out of a police intelligence unit by a new supervisor who wanted a male officer in the position.The city of St Louis, Missouri, has said officers are routinely transferred and that Muldrow’s supervisor transferred more than 20 officers when he took over the intelligence unit.Title VII of the Civil Rights Act of 1964 bars discrimination based on sex, race, religion and other characteristics “with regard to any term, condition, or privilege of employment”.Muldrow was backed by the Biden administration, which had urged the supreme court to endorse a broad application of Title VII. The justice department said that discriminatory transfers always violate the law because they necessarily involve a change in working conditions.Lower courts were divided over whether any workplace bias violates Title VII, or if companies violate the law only when discrimination influences major employment decisions.In Muldrow’s case, the St Louis-based eighth US circuit court of appeals in 2022 decided that her transfer had not negatively affected her working conditions, agreeing with a federal judge’s earlier ruling. The supreme court heard arguments in the case in December. More

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      Voting equipment company Smartmatic settles defamation lawsuit with far-right network

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      The voting equipment company Smartmatic has agreed to settle a defamation lawsuit with the far-right One America News Network (OAN) over lies broadcast on the network about the 2020 election.Erik Connolly, a lawyer for Smartmatic, confirmed the case had been settled, but said the details were confidential. Attorneys for Smartmatic and OAN notified a federal judge in Washington on Tuesday that they were agreeing to dismiss the case, which Smartmatic filed in 2021.Smartmatic sued OAN in November 2021, saying the relatively small company was a victim of OAN’s “decision to increase its viewership and influence by spreading disinformation”. Smartmatic was only involved in the 2020 election in a single US county, Los Angeles, but OAN repeatedly broadcast false claims that its equipment had flipped the election for Biden. Trump allies Rudy Giuliani and Sidney Powell played a key role in advancing the outlandish claims.Defamation cases are difficult to win in the US, with plaintiffs having to clear a high bar of showing that defendants knew the information was false and published it anyway. The settlement comes months after OAN lawyers apparently accidentally turned over documents showing that the network had obtained a spreadsheet with Smartmatic employees’ passwords. It’s not clear if the passwords were authentic, but Smartmatic lawyers said in court filings that the network may have committed a crime.The settlement also means that internal documents from OAN showing how the network weighed and evaluated claims about the 2020 election will not become public. Before the voting equipment company Dominion reached a $787.5m settlement with Fox last year, those kinds of internal documents offered smoking gun evidence that key personnel at Fox knew election claims were false.The settlement is the latest development in a series of defamation cases that have sought to hold media outlets accountable for spreading false information about the 2020 election. In 2022, OAN settled a defamation case brought by Ruby Freeman and Shaye Moss, two Atlanta election workers it falsely claimed were involved in stealing the election. The network issued an on-air report saying there was “no widespread voter fraud” by Georgia election officials and clarifying that Freeman and Moss “did not engage in ballot fraud or criminal misconduct”.Smartmatic still has a pending $2.7bn defamation lawsuit against Fox.Earlier this month, a Delaware judge set a September trial date for Smartmatic’s defamation case against Newsmax. Both Smartmatic and Dominion also have ongoing defamation cases against Powell, Giuliani and Mike Lindell.skip past newsletter promotionafter newsletter promotionLegal scholars are carefully watching the cases to see whether defamation law can be an effective tool in curbing misinformation. More

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      As a Palestinian-American, I can’t vote for Joe Biden any more. And I am not alone | Ahmed Moor

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      America is big, diverse and polarized. Yet, when it comes to the war in Gaza, opinions here are converging. A Gallup poll in March found 55% of respondents “disapprove of Israel’s actions”, up from 45% in November. Among registered Democrats, the figure is 75%. As the number of citizens voting “uncommitted” in Democratic primaries makes plain, President Biden’s unqualified support for Israel is a problem. Beyond the human carnage – 32,000 Palestinians, including over 14,000 children, have been killed by Israel in Gaza – Biden’s Israel policy could cost him the election.“We have given Biden and his administration and the party a gift,” said Layla Elabed, organizer of the Listen to Michigan campaign, where 100,000 voters marked the “uncommitted” box in February. The vote in Michigan, a battleground state where Biden beat Trump by a little more than 154,000 votes in 2020, has triggered a cascade of protest votes in primaries across the country. At least 25 uncommitted delegates will be sent to the Democratic national convention in August.Elabed explained to me that these protest votes in swing states are meant to warn Biden that it’s time to restrict US military aid to Israel and call for a permanent ceasefire in Gaza. “Listen to your constituency and take action now,” she said, “or you’re going to have trouble in November.” Notably, Elabed and the campaign she leads hope that the president may correct course and earn their vote, thereby preventing a second Trump term.Prominent Democrats, Governor Gretchen Whitmer among them, have failed to engage with the substance of the argument and with the campaign’s stated goals.“It’s important not to lose sight of the fact that any vote that’s not cast for Joe Biden supports a second Trump term,” Whitmer announced ahead of the Michigan primary vote.Whitmer’s argument that critics of the president’s policy in Palestine, in effect, offer support to former president Trump seems designed to encourage voters to fall in line. Yet, as Judith Max Palmer, a Philadelphia voter and registered Democrat, said to me: “The Democrats think they can scare us into submission and people are tired of it.”The intraparty fight has taken Representative Rashida Tlaib of Michigan as its totem. As the only Palestinian American in Congress, she has used her sizable public platform to decry the “level of support for Netanyahu’s war crimes by the Biden administration” in commission of Israel’s “genocide in Gaza”. She also advised her constituents and others who are dismayed by the Biden policy to vote uncommitted in the primary. In doing so, she earned the opprobrium of other Democrats.Don Calloway, a Democratic strategist, railed against Tlaib.“When Jalen Rose Leadership Academy and Wayne State and Cass Tech don’t get the proper appropriations from the Democratic administration … remember it’s because your Democratic congresswoman told them to not vote for the Democratic president in the primary,” he said.Calloway’s argument, which seems to prize party discipline over individual choice, is basically at odds with the tenets of participatory democracy. Voters are not beholden to a party – rather, the candidate is charged with crafting policies that appeal to an electorate to win votes. If voters in Biden’s coalition are now advocating for a change in policy, that – as the protesters say – is what democracy looks like. The candidate, and not the voters, is to blame if he fails to win in November, a point the Democrats appear to have struggled to comprehend in the wake of Hillary Clinton’s loss to Trump in 2016.“The cruelty [of Israel’s campaign in Gaza] is beyond my worst imagination. It changes the calculus,” said Rabbi Alissa Wise, another Philadelphia voter and one of the founders of Rabbis for a Ceasefire. She admitted to me that she worries Donald Trump “would be even more horrific” as president, but she wants to concentrate on the value of a protest vote now: “My hope is that the uncommitted campaign could really scare [policymakers] into a conscience.”View image in fullscreenUnlike Elabed and others I interviewed for this story, I have a different perspective.I am a Palestinian American in Pennsylvania, a contested state. I plan to write in “uncommitted” in the Democratic primary on 23 April and in November, I will vote for a third-party candidate.Like many Democrats, I was underwhelmed by the prospect of another Biden term, but I was prepared to move past my concerns about the president’s age and cognitive fitness to support the broader agenda on climate, among other things. I reasoned that Biden is supported by a cadre of experts, and that his job is mostly to set priorities and enlist the best and brightest to fill in the gaps. Now I am no longer able to rationalize support for this administration; the president’s moral failure in Gaza has taken on historic proportions, like Lyndon Johnson’s in Vietnam before him.Nor am I alone. “There’s no way I can see myself supporting Biden in the next election,” Will Youmans, associate professor of media and public affairs at George Washington University, told me. “Supporting a genocide is the reddest of lines,” he explained. In November, Youmans plans to vote for down-ballot Democrats, but he will write in a protest vote for president.For Palestinians, the prospect of a second Trump administration is distressing, even if Representative Debbie Dingell’s statement that Trump, were he president, might have “nuked Gaza” seems a little overheated. Jared Kushner, who advised Trump in his last administration, openly opined about “very valuable … waterfront property” in Gaza as he described a vision of ethnic cleansing in the Strip.Yet it’s not clear that Trump’s putative policies will be worse than Biden’s current policies are. In reality, if Benjamin Netanyahu decides to invite Kushner and others to develop Jewish settlements in Gaza, there is no reason to believe Biden will stop him from doing so. The president, after all, has only mouthed his discontent with Israel’s actions. That’s even as he has actively armed the Israelis, who seem able to do whatever they please. Actions – for better or worse – speak more loudly than words do.Nor is the question of who may be worse – measured against the lesser evil – sufficient to drive voter behavior on this issue. For many, myself included, a vote for Biden is simply impermissible – the extent of the moral calamity is so great as to render a vote for Biden a vote for complicity.Our values in this country – freedom of speech, enterprise, equality before the law – are unique among countries and are worth fighting for. In the best expression of America, our values are regarded as inviolable, and they provide a roadmap for our activism. This country is bigger than Trump or Biden and while elections matter, they only gain meaning as a way of expressing our values. We cannot be the source of arms that destroy the lives of millions of people. We cannot abet a famine.The uncommitted campaign – citizens banding together to petition democratically, in good faith, for a change in government policy – is the greatest expression of what it means to live in a democracy. Tlaib, Elabed, Wise and other engaged Americans who have worked to move the president to adopt a humane policy in Palestine embody our best values. As the president of the Center City mosque in Philadelphia, Mohammed Shariff, said to me: “My vote is the purest form of expression and speech.” President Biden ignores our voices at his own peril, and ours.
      Ahmed Moor is a writer, activist, and co-editor of After Zionism: One State for Israel and Palestine (Saqi Books 2024). More

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      Kharkiv at risk of becoming ‘second Aleppo’ without US aid, mayor says

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      Kharkiv is at risk of becoming “a second Aleppo” unless US politicians vote for fresh military aid to help Ukraine obtain the air defences needed to prevent long-range Russian attacks, the city’s mayor has warned.Ihor Terekhov said Russia had switched tactics to try to destroy the city’s power supply and terrorise its 1.3 million residents by firing into residential areas, with people experiencing unscheduled power cuts for hours at a time.The mayor of Ukraine’s second city said the $60bn US military aid package, currently stalled in Congress, was of “critical importance for us” and urged the west to refocus on the two-year-old war.“We need that support to prevent Kharkiv being a second Aleppo,” Terekhov said, referring to the Syrian city heavily bombed by Russian and Syrian government forces at the height of the country’s civil war a decade ago.View image in fullscreenOn 22 March, Russian attacks destroyed a power station on the eastern edge of the city as well all its substations; a week later officials acknowledged a second plant, 30 miles south-east of the city, had been eliminated in the same attack.Power in the city, about 30 miles from the Russian border, was interrupted after another bombing raid this week, causing the metro to be halted briefly. Residents said there was usually a few hours’ supply a day in the city centre, although in the outskirts the situation was said to be better.Children are educated either online or in underground schools, for their own safety. The water supply remains on, but Terekhov said there were concerns the Russian military may switch to targeting gas distribution, after storage facilities in the west were attacked last week.Ukrainian leaders have begun asking western nations to donate Patriot air defence systems, requests for help that were thrown into sharper relief by the US and UK military support for Israel over the weekend when it neutralised an air attack from Iran.President Volodymyr Zelenskiy said the allies’ defensive action “demonstrated how truly effective unity in defending against terror can be when it is based on sufficient political will” – before making a comparison to Ukraine.Iranian-designed Shahed drones used by Russia “sound identical to those over the Middle East”, he said. “The impact of ballistic missiles, if they are not intercepted, is the same everywhere.”The Ukrainian leader concluded: “European skies could have received the same level of protection long ago if Ukraine had received similar full support from its partners in intercepting drones and missiles.”Seven people were killed in Kharkiv when two rockets struck near an unused shopping mall on the ring road north of the city shortly after midnight on 6 April, leaving behind 4-metre-deep craters and military debris near a residential area.Nina Mykhailivna, 72, who lives nearby, said the shock from the strike “lifted her bed in the air” and was followed by about 90 minutes of secondary explosions, the most serious she had experienced during the war.Few residents have left the city since Russia increased its bombing campaign around the turn of the year, and Kharkiv remains a lively metropolis with busy restaurants and cafes, and some businesses thriving despite the threat.View image in fullscreenOleksii Yevsiukov, 39, and Viktoriia Varenikova, 30, run the Avex clothing factory in a residential district and have installed $20,000 worth of solar panels on the roof since the start of the conflict. The additions provide enough electricity to power the sewing machines for the 10 employees working below in the Soviet-era building, which is undergoing a total refurbishment.“We anticipated there might be power cuts from energy infrastructure attacks this winter,” Yevsiukov said. “We looked at solutions and decided a diesel generator was not suitable, expensive and not very eco friendly, so we ordered the solar panels last year.”A newly installed power bank stores enough electricity for two days’ use if the panels are unable to generate it, and a geothermal pump keeps the building warm, avoiding the need for gas. As such, the factory is self-sufficient, which could become necessary as the owners anticipate at least two more years of war.View image in fullscreenTheir company makes women’s swim and fitness wear for branded companies in Ukraine, and, the couple say, sales have grown even though the goods might be considered luxuries during wartime. With the factory refurbishment nearly complete, Yevsiukov said they planned to roughly double the workforce.Soon after the war began, Varenikova found out she was pregnant. Their son Max is now one, and she expresses the hope that war might be over by the time he is ready for school. “I want him to go to a normal school, not an underground school, not a school in the metro, not an online school.”However, not everybody is so optimistic. One of the firm’s employees, Liubov, said she was planning to leave her home in Kharkiv and move to central Ukraine for at least a month to provide a calmer environment for her two daughters, who can continue to take classes remotely.Russian bombing had become “much more frequent, much more often”, Liubov said. The comprehensive attack on 22 March was “very, very scary and loud” and “attacks could come at daytime or night-time, in any part of the city”.Liubov did not want to be photographed or give a surname, reflecting perhaps a concern about not wanting to be identified as someone leaving the city. “We’ve had to get used to everything, I wish we didn’t have to. We have power banks, we have storage of food, but we want this to be over soon. We simply want to live.” More

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      Alabama chooses candidates for new Black congressional district

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      Shomari Figures, an attorney and Obama White House executive from a politically-prominent civil rights family, has won the Democratic nomination to run in Alabama’s redrawn second congressional district Tuesday night, defeating state representative Anthony Daniels.The runoff election has been closely watched because of its implications for control of Congress in November, and for the effect of supreme court orders requiring southern states to comply with the federal Voting Rights Act and eliminate racial gerrymandering.Republicans currently control Congress by a margin of 218 to 213, with four vacancies. A win by Figures in November represents one seat flipping control from Republicans to Democrats.Alabama legislators resisted complying with the order of the US supreme court last year, requiring the state’s congressional map to add an additional district that would be politically competitive for a Black candidate. The courts eventually appointed a special master to oversee redrawing district lines, creating a new second district in southern Alabama, stretching through the “Black Belt” of counties with large African American populations.Just under half of the residents are Black. The Cook Political Report rates Alabama’s second congressional district as “leans Democratic” with a +4 Democratic partisan advantage, which Republicans believe may still provide an opportunity to hold the seat.Tuesday night, Republicans chose Caroleene Dobson, a real estate attorney and political newcomer, to face Figures in November. Dobson, a Harvard graduate and Federalist Society member, ran as a more conservative candidate than her runoff opponent, former State Senator Dick Brewbaker, who served a Montgomery-area district for 10 years.The Republican runoff candidates had contributed about a million dollars to their campaigns by March election filing deadlines, a sign of how hard fought the contest will be in November.The campaigns of Figures, 38, and Daniels, 41, differed less by ideology than biography. Daniels is the youngest Black man to lead Democrats in the Alabama house of representatives. He grew up in a small Black Belt town south of Montgomery, but represents Huntsville, Alabama, a prospering north Alabama city from which he has built a statewide power base.Daniels developed a reputation as a political dealmaker while serving in the legislature, navigating a political environment that is hostile to Democrats to get legislation passed that eliminated state income taxes on overtime pay. But Daniels could not overcome Figures’ financial advantages in a runoff.Figures is the kind of Alabama political royalty whose engagement five years ago was announced in the New York Times. Figures’ father, Alabama state Senator Michael Figures was a crusading attorney who famously bankrupted the Alabama Ku Klux Klan in the ’80s. His mother, state Senator Vivian Davis Figures, won the seat held by her husband after his death in 1996 and has held it since.Figures resigned his job as the deputy chief of staff and counselor to Merrick Garland, the attorney general, to compete in the crowded March primary. His longstanding connections to national politics helped him draw nearly $2m in outside spending from groups like Protect Progress, a Washington-based political action committee. More

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      House Republicans present Mayorkas impeachment articles to Senate

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      House Republicans on Tuesday formally presented articles of impeachment against Alejandro Mayorkas, the homeland security secretary, to the Senate, part of the party’s attempt to force an election-year showdown with the Biden administration over immigration and border security.In a ceremonial procession, 11 House Republican impeachment managers carried the two articles of impeachment across the rotunda of the US Capitol, where they informed the Senate they were prepared, for the first time in American history, to prosecute a sitting cabinet secretary for “willful and systemic refusal” to enforce border policies and a “breach of public trust”.Constitutional scholars, including conservative legal experts, have said the Republicans’ impeachment case is deeply flawed and fails to meet the high bar of “high crimes and misdemeanors” outlined in the constitution.Democrats, who control the Senate, have made clear their intention to quickly dispense with the articles, arguing that the politically charged proceedings amount to little more than a policy dispute with the administration. A two-thirds majority is needed to win an conviction in the Senate, an impossible threshold if all of the Democrats are united in favor of dismissing the charges against Mayorkas, who retains the support of Joe Biden.In February, House Republicans bypassed skepticism within their own ranks and unified Democratic opposition to approve by a one-vote margin two articles of impeachment against the secretary, who they have made the face of the Biden administration’s struggle to control record migration at the US-Mexico border.“Impeachment should never be used to settle a policy disagreement,” the Democratic majority leader, Chuck Schumer, said on Tuesday, adding: “Talk about awful precedents. This would set an awful precedent for Congress.”Schumer has said the Senate would convene on Wednesday as a “court of impeachment” and senators will be sworn in as jurors. Patty Murray, the Senate president pro tempore, a Democrat of Washington, presided over the chamber as the House homeland security chair, Mark Green of Tennessee, read the charges aloud.Schumer said he hoped to deal with the matter as “expeditiously as possible”. But Republicans are pressuring Democrats to hold a full trial.“We must hold those who engineered this crisis to full account,” the House speaker, Mike Johnson, said in a statement on Monday after signing the articles of impeachment. “Pursuant to the constitution, the House demands a trial.”Johnson initially delayed the delivery of the articles to focus on funding legislation to avert a government shutdown. Then the transmission was delayed again after Senate Republicans asked for more time to strategize ways to ensure a Senate trial.In remarks on Tuesday, Senator Mitch McConnell charged that it would be “beneath the Senate’s dignity to shrug off our clear responsibility” and not give thorough consideration to the charges against Mayorkas.“I will strenuously oppose any effort to table the articles of impeachment and avoid looking the Biden administration’s border crisis squarely in the face,” the Senate minority leader said.Mayorkas, the first Latino and first immigrant to lead the agency, has forcefully defended himself throughout the process, writing in a January letter to House Republicans: “Your false accusations do not rattle me.”Hours before the articles were delivered to the Senate, Mayorkas was on Capitol Hill, pressing Congress to provide his agency with more resources to enforce border policies and to pass legislation updating the nation’s outdated immigration laws.skip past newsletter promotionafter newsletter promotion“Our immigration system, however, is fundamentally broken,” he told members of the House homeland security committee on Tuesday morning. “Only Congress can fix it. Congress has not updated our immigration enforcement laws since 1996 – 28 years ago. And, only Congress can deliver on our need for more border patrol agents, asylum officers and immigration judges, facilities and technology.”Republicans seized on the opportunity to assail Mayorkas, blaming him for the humanitarian crisis at the country’s southern border.“The open border is the number one issue across America in poll after poll and that is exactly why this committee impeached you,” said Marjorie Taylor Greene, the far-right Georgia congresswoman, one of 11 House Republicans tapped to serve as an impeachment manager.Several Republican senators have expressed deep skepticism about the House’s impeachment effort, former secretaries of homeland security as well as conservative legal scholars have denounced the Republicans’ case against Mayorkas as deeply flawed and warned that it threatens to undermine one of Congress’s most powerful tools for removing officials guilty of “treason, bribery, or other high crimes and misdemeanors”.A group of Republican senators are contemplating ways to slow-walk the process, suggesting they will deliver lengthy speeches and raise time-consuming procedural inquiries to keep the attention on immigration, one of Biden’s greatest political vulnerabilities.Americans broadly disapprove of the president’s handling of the border, now a top concern for many voters. Ahead of the 2024 election, Republicans have assailed Biden over the border while Donald Trump, the party’s likely presidential nominee, has again put immigration at the center of his campaign.An attempt to pass a bipartisan border bill – negotiated by Mayorkas and touted as the most conservative piece of immigration legislation in decades – was derailed by Republicans at the behest of Trump, who did not want Biden to notch a victory on an issue that plays to the former president’s political advantage.Biden has also asked Congress to approve requests for more border patrol agents and immigration court judges, but Republicans have refused, saying Biden should use his executive authority to stem the flow of migrants. Biden has said he is mulling a far-reaching executive action that would dramatically reduce the number of asylum seekers who can cross the southern border. More

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      Republican senator Tom Cotton calls for vigilantism to break up Gaza protests

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      The Republican senator Tom Cotton has urged Americans to “take matters into their own hands” when encountering pro-Palestine supporters, an apparent call to vigilantism as Israel’s military strikes in Gaza continued despite global calls for a ceasefire.Demonstrations on Monday by supporters of Palestine blocked roads in major US cities, including New York and Philadelphia; delayed flights at the bustling Chicago O’Hare and Seattle-Tacoma international airports; and caused traffic congestion on San Francisco’s Golden Gate Bridge.Cotton, a Republican, eventually appeared on Fox News and labeled the protesters “criminals”. He also expressed his sympathy for the people whose commutes were interrupted by Monday’s demonstrations, which demanded that the US government drop its military support of Israel.Hamas attacked Israel on 7 October, killing 1,100 mostly civilians and taking hostages. Israel responded with a ground and air onslaught that has killed more than 30,000 mostly women and children as well as pushed the region to famine.The far-right senator from Arkansas told the Fox News host Sandra Smith that as far as he was concerned, those who deserved his sympathies were “all those people who are trying to get to work or trying to pick up a kid”.He also said he “very worried about the diversion of police resources where it needs to be stopping crime in cities like San Francisco, where firefighters are having to go there when they might have calls for fires out”.He soon went further, arguing that people in his state would inflict bodily violence on the protesters, whom he called “antisemitic” and “pro-Hamas”.“If something like this happened in Arkansas on a bridge there – let’s just say I think there’d be a lot of very wet criminals that have been tossed overboard, not by law enforcement, but by the people whose road they’re blocking,” Cotton said.“If they glued their hands to a car or the pavement, well, [it would be] probably pretty painful to have their skin ripped off. But I think that’s the way we’d handle it in Arkansas.”Cotton said he “would encourage most people anywhere that get stuck behind criminals like this who are trying to block traffic, to take matters in their own hands” and solve the problem without involving police.It is not the first time Cotton had expressed such sentiments. In a notorious 2020 New York Times op-ed headlined Send In the Troops, the senator likened Black Lives Matter protests to a rebellion and urged the government to deploy the US military against demonstrators by invoking the Insurrection Act.“The Insurrection Act authorizes the president to employ the military ‘or any other means’ in ‘cases of insurrection, or obstruction to the laws,’” Cotton wrote. “These rioters, if not subdued, not only will destroy the livelihoods of law-abiding citizens but will also take more innocent lives. Many poor communities that still bear scars from past upheavals will be set back still further.“One thing above all else will restore order to our streets: an overwhelming show of force to disperse, detain and ultimately deter lawbreakers.”At the time, supporters of the Black Lives Matter movement were exercising their constitutional rights to assemble and advocate for social justice after a white Minneapolis police officer murdered George Floyd, a Black man, in plain view of a cellphone camera.Cotton argued in the 2020 piece that “a majority who seek to protest peacefully shouldn’t be confused with bands of miscreants”. He also falsely claimed that anti-fascist – or “antifa” – members had infiltrated Black Lives Matter marches, meriting a military response.Mainstream reaction to Cotton’s op-ed was largely negative, forcing the Times to issue a statement saying that the piece did not meet its editorial standards and should not have been published. The editorial page editor subsequently resigned, and his deputy was reassigned. More

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      US supreme court skeptical of using obstruction law in January 6 cases

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      The US supreme court expressed concern on Tuesday with prosecutors using an obstruction statute to charge hundreds of January 6 Capitol riot defendants, with the justices leaning towards a position that could jeopardize those prosecutions and the criminal case against Donald Trump.The Trump case was not mentioned at the argument. But a decision curtailing the use of the obstruction statute in connection with the Capitol attack could eliminate two of the four charges against the former president.The case, which on its face involves a January 6 riot defendant named Joseph Fischer, became of sudden importance last year after Trump was also charged with obstruction of an official proceeding over his efforts to stop Congress from certifying the results of the 2020 presidential election.At issue is whether the obstruction statute passed under the Sarbanes-Oxley Act in 2002 in the wake of the Enron scandal could be used to prosecute general instances of obstruction, or whether it was intended to be used more narrowly for evidence tampering or document destruction.If the supreme court decides that section 1512(c) of title 18 of the US criminal code was being used too broadly, it could cripple part of the case against Trump as the special counsel Jack Smith looks to draw a line at trial from the former president’s January 6 speech to the violence.And if the court moved to strike down the use of the obstruction statute, it could undercut the remaining conspiracy statutes used in the indictment against Trump.The US solicitor general, Elizabeth Prelogar, arguing for the justice department, found herself repeatedly pressed on those points by the justices Samuel Alito, Neil Gorsuch and Clarence Thomas – and John Roberts, the chief justice.When Congress passed the obstruction law, it was done in a two-part provision. The first part makes it a crime to corruptly alter, destroy or conceal evidence to frustrate official proceedings. The second part, at issue in Fischer’s case, makes it a crime to “otherwise” obstruct official proceedings.The argument from Prelogar contended that “otherwise” was designed as a catchall for any obstructive conduct that Congress might not have imagined when the law was being drafted. Prelogar’s point was that the theme of the law was outlawing all obstruction.Fischer’s lawyer, Jeffrey Green, argued that was too broad: “otherwise” should be defined as engaging in “similar” conduct as expressed in the first part of the statute – to do with obstructing an investigation or evidence tampering – done in a different way.Alito and Gorsuch appeared deeply skeptical of the justice department’s position. They suggested repeatedly that Prelogar’s reading of the law was overly expansive, peppering her with hypotheticals.Would delaying an official proceeding count as obstruction? How significant did the delay have to be to count as obstruction? Gorsuch asked. Alito added that the statute mentioned obstruction but also mentioned “impeding” proceedings, which, he said, was less serious than obstruction.Prelogar, on the defensive, was eventually pressed into replying that peaceful protests would be a technical violation of the law, even if the justice department was unlikely to prosecute minor disturbances, drawing a contrast to the events of January 6.But that invited Alito to ask how Prelogar would define minor disturbances. Would it be a minor disturbance if people heckled a court hearing, delaying the hearing and causing lawyers to lose their train of thought? Prelogar’s definition would encompass everything and anything in between, Alito suggested.skip past newsletter promotionafter newsletter promotionThomas also appeared concerned with the enforcement history of the obstruction statute. Prelogar took the opportunity to point out that the justice department had previously prosecuted cases of interfering with a grand jury investigation and interfering with federal court proceedings.But in rebuttal, Fischer’s lawyer suggested that her examples supported his position, because both were related to the use of evidence in proceedings.The justice department’s position came under additional fire from Chief Justice Roberts, who noted that the supreme court in the past had eschewed the use of general statutes under the doctrine known as “ejusdem generis”.Roberts suggested he might credit a lower court ruling that found the first part of the statute limited the second part of the statute: if the first part was about tampering with evidence in an investigation, the second part follows with “otherwise” referring to other ways to tamper with evidence.The skepticism from the conservative-leaning justices on the supreme court was not shared by Sonia Sotomayor, the justice who appeared to firmly see the “otherwise” language being used as a reference to any obstructive conduct.Sotomayor separately raised her own hypothetical of rules that prohibited photographing or otherwise disturbing a theatrical performance. If a defendant heckled and disturbed the performance, no one would be surprised if they were ejected, Sotomayor suggested to Fischer’s lawyer. More