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      The US supreme court may turn this election into a constitutional crisis | Sidney Blumenthal

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      Imagine it is 6 January 2025. The bell tolls for the day of electoral college certification again. All the events of 2024 converge:The US supreme court’s likely ruling in Trump v Anderson denying Colorado’s disqualification of Trump under the constitution’s 14th amendment, section 3; the exoneration of Joe Biden by special counsel Robert Hur for handling documents while sideswiping him as near senile; the ruling on Trump’s immunity; the trial for his coup attempt; and Texas Governor Greg Abbott’s defiance of federal court rulings in deploying his national guard to the border, supported by other Republican governors who have mobilized their guard units in similar acts of nullification – all these happenings could hurtle to a convulsive confrontation.The supreme court was precisely cautioned against fostering “potentially disastrous turmoil” if it were to rule against Colorado, in an amicus brief submitted by Benjamin Ginsberg, who for decades was the leading Republican party attorney on elections, along with two prominent legal scholars, Richard Hasen, professor at the UCLA law school, and Edward Foley, professor at the Ohio State University law school.The brief by Ginsberg et al was unvarnished: “A decision from this court leaving unresolved the question of Donald Trump’s qualification to hold the office of president of the United States under section 3 of the 14th amendment until after the 2024 election would risk catastrophic political instability, chance disenfranchising millions of voters, and raise the possibility of public violence before, on, and after November 5 2024.”The brief added that “the grounds for avoiding the merits are not credible: Colorado manifestly had the authority to determine Mr Trump’s legal qualification for the office he seeks, and this court has jurisdiction to review that federal-law decision on its merits. To punt on the merits would invite chaos while risking great damage to the court’s reputation and to the Nation as a whole.”But apparently the justices failed to read this brief, just as they apparently failed to read the various amicus briefs filed by distinguished historians.Picture how the scenario might unfold as though reading it as a history from the vantage point of one year from now. The Ginsberg brief predicts the dire consequences that would flow from the supreme court ruling against Colorado. If we layer on to that prophesy the seemingly disparate events of this winter of our discontent we can see, through a mixture of fact and speculation, a disastrous unraveling.Start with the supreme court ruling that a state is not the proper body to determine a disqualification under the 14th amendment, section 3. That would, as the Ginsberg brief states, leave enforcement inevitably, by a process of elimination, to the Congress. The justices’ frantic effort to escape responsibility for upholding the plain language of the 14th amendment in the name of saving the country from a hypothetical political crisis would potentially create a very real constitutional one.In that light, the election result might prove irrelevant. The reason is that now, according to this scenario, the 119th Congress, sworn in on 3 January 2025, could reject the electors from states for Trump by deciding that he is an insurrectionist. The supreme court would have set the stage. If the Democrats were to win the House, they could remove Trump. If the Republicans win control of the Senate, the majority leader, Mitch McConnell, refusing to whip the vote for Trump, could allow a number of Republican senators to vote for Trump’s disqualification, which would void his electoral votes by both chambers.If there is a deadlock, the Ginsberg brief argues, the House still would have an option to remove Trump. Under the Electoral Vote Reform Act, the House would establish rules under the constitution’s 12th amendment in which each state delegation gets one vote in the House. But before that would have taken place, the House could vote that Trump is excluded from a 12th amendment ballot because he was disqualified under the 14th amendment, section 3. No one not on the ballot for president could be substituted. Which means that Joe Biden would be re-elected in any case.All along, throughout the entire campaign year, that would mean that Trump has never been qualified. And it would also mean that only the supreme court decision against Colorado made it seem that he was.In the hearing of the Colorado case earlier this month, Chief Justice John Roberts cast aside the pretense of the conservative doctrines of originalism and textualism on which the supreme court has eviscerated voting rights, gun control and abortion rights. He retreated into a political hypothetical that if the court ruled in Colorado’s favor Biden might be subject to attempts to remove him from the ballot as an insurrectionist.Roberts prattled, “… maybe they’ve got a stack of papers saying here’s why I think this person is guilty of insurrection, it’s not a big insurrection, something that, you know, happened down – down the street, but they say this is still an insurrection … I don’t know what the standard is for when it arises to that.”Led by Roberts, the justices refused to define an insurrection, which was the heart of the Colorado supreme court’s ruling. Roberts’ hypothetical, besides tossing overboard originalism, was more than supercilious punditry. Perhaps his scenario was based on his familiarity with the tactics of the right wing.But Roberts also inadvertently revealed an implicit contempt for the federal system of justice. If a ludicrous suit were ever to be filed against Biden claiming he was an insurrectionist, it would enter into the process of that state’s courts. Roberts apparently had scant confidence in the state courts, up to their supreme courts, to render a sensible decision to throw out transparently mischievous cases. And if a silly case somehow made it to the supreme court, Roberts himself could lead it to deny certiorari. But in his eagerness to find some cause to rule against Colorado, Roberts may have suffered a memory lapse about the fundamental workings of the judicial system.With a supreme court ruling against Colorado, Trump would hail it as a major political victory, brandishing it as proof that all of the charges against him were motivated by partisanship.Now, imagine that in the 2024 election Biden wins the popular vote for the presidency by millions. That is not such a difficulty. Only one Democrat since 1992 has lost the popular vote in a presidential election.But consider that Biden’s overall vote and vote in swing states might be hurt by a lingering ill wind from the special counsel’s report, blowing in suspicion that, despite his command of foreign policy, military affairs and congressional negotiations, he is too damn old, unlike his unsympathetic, malicious, despised and also elderly opponent.If that report imprinted the notion that Biden’s age reflected disability, then wavering voters could fail to grant Biden the credit for his accomplishments, instead giving more weight to the image of him as incapacitated, leaving the record of his presidency unexplained. Trump’s malignant rants, meanwhile, would be, as they are often now, either accepted or dismissed.Cognitive dissonance, rather than cognitive function, in the election could prove to be the critical factor. The president who lifted the country out of Trump’s massive economic and social fiasco in the Covid crisis, and steered it through the resulting inflation to a fabled soft landing, would be perceived as having little to do with his own purpose and therefore weak. On the economy, it’s the stupidity, stupid.The cognitive disconnect in failing to attribute results to Biden’s actions would have enormous political consequences. The more Biden would try to explain the benefits of his policies, the more the Maga base and suggestible voters would disbelieve him because they have already decided he was too old to do anything, a perception reinforced not only by Fox News but also by the drumbeat of mainstream and social media.The election would then disclose the tenacity of the primitive mind. Trump’s bluster would be equated with strength and his threats with energy. The more bellicose he behaves, the more he would be seen as strong; the more incoherently he babbles, the more his supporters believe he knows what he was talking about. While Biden’s irrelevant gaffes have so far been held against him, Trump’s stream of semiconsciousness has been credited as a sign of vigor. The primitive mind that instinctively associates ape-like bellowing with power will not be swayed.Special counsel Robert Hur’s report on the storage of documents at the Penn Biden Center and Biden’s home, published earlier this month, underscored the negative campaign attack. The report’s first line was that “no criminal charges are warranted”. This was followed by contradictory assertions that Biden “willfully retained” documents and that “reasonable jurors” would conclude “that he did not retain them willfully”, and that “he made an innocent mistake, rather than acting willfully – that is, with intent to break the law – as the statute requires”.Having exonerated Biden, the special counsel added this snark: “We have also considered that, at trial, Mr Biden would likely present himself to a jury, as he did during our interview of him, as a sympathetic, well-meaning, elderly man with a poor memory.”The press attention to the latter part of the sentence has almost always left out the first part – the conjecture of a trial. Yet, as Hur made clear in the opening of his report, he had already decided that he would not bring charges because he lacked evidence, much less a single witness he could bring before a grand jury. When Hur wrote the line he knew there could be no trial.In Biden, Hur had a president “willfully” dedicated to cooperation. He appeared for a deposition at the White House for more than five crucial hours on 8 and 9 October, immediately after the Hamas terrorist attack on Israel, in which he was immersed in urgent national security meetings and conversations with world leaders. There was no appearance of obstruction of justice or perjury, as there was in the documents case against Trump. Instead, Biden was willing to elevate the legal process over affairs of state.Biden’s quoted statements that appeared muddled are completely familiar to anyone who has ever had a discussion with him. I have personally had long conversations with Biden since I met him nearly 40 years ago. He has a habit of ruminating, wandering and voicing fragments of thought aloud, but always returns to his subject with considerable knowledge, experience and clear views. (I know of many people who have had conversations with Biden very recently, who report that he is focused, sharp and has a cogent grasp of the many crises he is handling at once.)Hur’s elaborately cute description of a doddering Biden was not gratuitous; it was carefully crafted. Hur knowingly lent the imprimatur of a Department of Justice report to character assassination. Then, Attorney General Merrick Garland naively released it unredacted to the public – red meat for the jackal pack.What was Robert Hur’s state of mind? The most generous interpretation of the special counsel’s innuendo may have been that he was innocent of any experience with a charming Irish American politician. The irony was surely lost on the hardwired conservative that his description of Biden fit Ronald Reagan to a T. But Hur instrumentally deployed his summary of his encounter with Biden as an excuse for his lack of evidence.Hur is a cold-blooded Javert as rightwing careerist. He is a representative man of the first generation bred entirely within the hothouse of the Federalist Society from his start to his smear. Beginning as a summer intern in 2000 at Kirkland & Ellis, where he had the model of partner Brett Kavanaugh, he clerked for Chief Justice William Rehnquist in the period when he was issuing opinions blocking abortion clinics from using Rico to sue anti-abortion protesters for damages, in Scheidler v National Organization for Women, and striking down affirmative action to increase racial diversity in college admissions, in Grutter v Bollinger and Gratz v Bollinger.Hur was an associate to then deputy attorney general Rod Rosenstein, who defended then attorney general William Barr’s misrepresentation of a redacted version of the Mueller report on Russian interference in the presidential election of 2016 to assist Trump. Trump appointed Hur the US attorney for Maryland, which certainly met with the approval of the Federalist Society chair, Leonard Leo. Hur has been a featured speaker at Federalist Society events since 2007.Hur’s report was not obsessional or fanatical, but professional. It was in effect his job application for the next Republican administration.Now, imagine, if the scenario of the Ginsberg brief is a catastrophe foretold, that all these events tumble unpredictably to 6 January 2025 and beyond. One of the analytic tools of historical understanding is to speculate on what might have happened if events took unexpected twists and turns. The proverb “for want of a nail” suggests that the absence of a minor factor produced a major outcome. In chaos theory, the butterfly effect describes the impact of seemingly random occurrences that set in motion a chain reaction leading to enormous change – the flapping of a butterfly’s wings that results in a distant tornado. A supreme court ruling and a special counsel’s report are more than a nail and a butterfly’s wings.So, consider the possible effects in a not-so-distant future:Disqualified by the Congress, an enraged Trump files a suit before the supreme court. But that is just a gesture. After the 2020 election, he incited a mob to attack the Capitol. Suppose that now he calls on the Texas governor – and other Republican governors – to send national guard units to enforce his “election”. Biden federalizes them, but the Republican governors proclaim that he has usurped power to keep himself in office illegitimately and that Trump is the truly elected president.Self-installed as the president of the de facto Second Confederacy, Trump’s first act is to pardon himself of all federal crimes. He has called Vladimir Putin, Viktor Orbán and Benjamin Netanyahu to request that they recognize him as the true president. Putin offers him asylum.As armies prepare to clash on a darkling plain, Trump’s last-ditch appeal in the Manhattan election fraud case for paying hush money to a porn star goes against him. The New York appellate court announces it has upheld his prison sentence and fine. Governor Ron DeSantis of Florida responds that while Trump might be the president he will honor the extradition clause of the constitution to deliver him from Mar-a-Lago as a fugitive from justice. Trump flees to Texas, where Governor Abbott refuses the extradition order. Trump proclaims he is president wherever he is.The case for remanding Trump to jail in New York then goes to the supreme court. Having decided that the 14th amendment, section 3, is not self-executing, that a state cannot enforce it, the justices must now decide whether to uphold a district attorney under a state law to seize a convicted criminal under the extradition clause, which has always been pro forma. The court puts the case on its calendar several months in the future in the spring of 2025. Its conservative members are at the moment on an extended Federalist Society retreat at a private luxury lodge in Wyoming paid for by Harlan Crow.Or we click the heels of the ruby slippers. “There’s no place like home.” We awake from a phantasmagorical dream in a bed surrounded by Aunt Em and Uncle Henry.
      Sidney Blumenthal is a Guardian US columnist. He is a former senior adviser to President Bill Clinton and Hillary Clinton and 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 More

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      Trump asks US supreme court to keep election interference case frozen

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      Lawyers for Donald Trump asked the US supreme court on Monday to keep on hold the criminal case over his efforts to overturn the 2020 election results while he prepares to challenge a recent appeals court ruling that found he was not immune from prosecution.The former US president also asked the nation’s highest court to stay the US court of appeals for the DC circuit order that prevented him from seeking what is known as an “en banc” rehearing of the case by the full bench of appeals judges.“President Trump’s application easily satisfies this Court’s traditional factors for granting a stay of the mandate pending en banc review and review on certiorari by this Court,” Trump’s lawyers John Sauer, John Lauro and Greg Singer wrote in the 110-page petition.The petition argued that Trump had met the key tests for the supreme court to grant a stay because there was a strong likelihood it would hear the case and because without a stay, Trump would suffer “irreparable injury” if the case proceeded to trial in the interim.“It is axiomatic that President Trump’s claim of immunity is an entitlement not to stand trial at all, and to avoid the burdens of litigation pending review of his claim,” the petition said.The filing broadly expounded earlier arguments Trump had made about presidential immunity, which his legal team has viewed as the best vehicle to delay the impending trial because it was a vehicle through which Trump could pursue an appeal before trial that also triggered an automatic stay.Trump has made it no secret that his strategy for all his impending cases is to seek delay – ideally beyond the 2024 election in November, in the hopes that winning a second presidency could enable him to pardon himself or direct his attorney general to drop the charges.For months, Trump has attempted to advance a sweeping view of executive power – that he enjoyed absolute immunity from prosecution because the conduct charged by the special counsel Jack Smith fell within the “outer perimeter” of his duties as president.The contention received short shrift from the US district judge Tanya Chutkan, who is overseeing his case in Washington and rejected his argument. It received similar treatment from a three-judge panel at the DC circuit, which categorically rejected his position.“We cannot accept former president Trump’s claim that a president has unbounded authority to commit crimes that would neutralize the most fundamental check on executive power,” the unsigned but unanimous opinion from the three-judge panel said.“At bottom, former president Trump’s stance would collapse our system of separated powers by placing the president beyond the reach of all three [government] branches,” the opinion said. “We cannot accept that the office of the presidency places its former occupants above the law for all time thereafter.”But Trump’s lawyers have long viewed the immunity issue as more of a vehicle to stall the case from going to trial than an argument they would win on its merits. It was perhaps the only motion they could make that triggered an appeal before trial and came with an automatic stay.Trump was forced to appeal directly to the supreme court, instead of making an intermediary challenge that would cause further delay, after the DC circuit panel issued parameters on how Trump could use further appeals if he wanted the case to remain frozen.The panel ruled that Trump needed to petition the supreme court by Monday to keep the stay in place. The stay would remain until the supreme court either declined to hear the case or until it issued a judgment in the event it did agree to take up the matter.skip past newsletter promotionafter newsletter promotionThat effectively foreclosed Trump from pursuing an “en banc” rehearing – which is where the full bench of judges at the DC circuit would reconsider the decision of the three-judge panel – since pre-trial proceedings under Chutkan would resume while he waited for the DC circuit to weigh in.Over the weekend, Trump’s chief appellate lawyer John Sauer prepared the application for a stay, a person familiar with the matter said.The concern in recent days among the Trump legal team has been whether the supreme court would agree to keep the case frozen while Trump made his final appeal, the person said. And even if they granted the stay, it remains unclear whether the supreme court would ultimately agree to take up the case.How the court moves next could decide whether Trump will go to trial on the federal election interference case before the 2024 presidential election. Recent public polls have shown that voters would be more inclined to vote for the Democratic incumbent Joe Biden, who defeated Trump in 2020, if Trump was convicted in this case.If the supreme court declines to hear the case, it would return jurisdiction to Chutkan in the federal district court in Washington. Chutkan scrapped the 4 March trial date she initially scheduled, but has otherwise shown a determination to proceed to trial with unusual haste.If the supreme court does accept the case, the question will be how quickly it schedules deadlines and arguments – and how quickly it issues a decision. The closer to the end of its term that the court issues a decision, the more unlikely a trial would take place before the election.The speed with which the supreme court moves has become important because Chutkan has promised Trump that he would get the full seven months to prepare his trial defense that she envisioned in her original scheduling order that set the 4 March trial date. More

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      US supreme court justices have strange views on whether Trump is disqualified | Moira Donegan

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      Elena Kagan once referred to Jonathan Mitchell sarcastically as “some genius”. That was in oral arguments surrounding SB8, the bounty-hunter abortion ban that Texas succeeded in passing before the overturn of Roe v Wade, which Mitchell wrote, pioneering a cockamamie scheme for evading judicial review.Mitchell, a far-right lawyer currently vying for a spot in the second Trump administration, is a fan of this kind of bald, legal bad faith: you can’t quite call him duplicitous, because he never quite pretends that the law really leads him to the conclusions he’d like to reach. He’s more about coming up with novel legal schemes to get to his desired outcome and trusting that the federal judiciary, captured as it is by Federalist Society acolytes and wingnut cranks, will go along with him because they share his political proclivities.That’s what worked for him with SB8: the supreme court allowed Texas’s abortion ban to go into effect long before Dobbs: not because Mitchell made a convincing argument, but because he offered them an opportunity to do what they wanted to do anyway.Something similar happened in Thursday’s oral arguments in Trump v Anderson, a question about whether Donald Trump is disqualified from holding federal office under section three of the 14th amendment.The case reached the supreme court after a Colorado court found that Trump’s actions on January 6 disqualified him. The court wanted to disagree and was desperate to find a way to restore Trump to the Colorado ballot without addressing the underlying question of whether Trump committed an insurrection or not. Mitchell, Trump’s lawyer, gave them very little help: he gave a shoulder-shrugging argument to the justices, after filing a bizarre and strained brief that primarily focused on the absurd claim that the president is not an “officer.” Left to their own devices, the justices went fishing, looking for an argument that could plausibly allow them to exit the case, since Mitchell did not provide them one.The winning entry came from Justice Samuel Alito, who first offered the suggestion that a state like Colorado did not have the authority to enforce section three of the 14th amendment without congressional permission. The rest of the justices seemed to like the sound of that and were soon all asking questions about the scope of state authority over the administration of federal elections.It was a bit of an odd argument: the court recently came close to embracing a much more wide-reaching vision of the authority of state legislatures to govern federal elections in their borders, in its address of a rightwing legal curiosity called the “independent state legislature theory”. And the notion that section three of the 14th amendment requires congressional action to go into effect is on its own peculiar: no other section of the amendment has been found to require such instigating legislation from Congress, and the language of the amendment itself suggests that the disqualification of onetime insurrectionists is something that Congress has to act to turn off, but not to turn on.It is strange, too, that the court, which in past years has made dramatic and ruinous changes to American life out of its professed loyalty to our nation’s “history and traditions”, chose to more or less completely ignore the suggestions of history here. The 14th amendment’s section three has seldom been enforced – in part because of the rarity of insurrections – and so there are few impediments to the court’s self-styled originalists delving headfirst into the history of the amendment’s intention and context.But instead the justices chose to dismiss the considerable evidence that the framers of the 14th amendment intended section three to be used precisely to protect the republic from a figure like Trump. They attend themselves instead not to the lessons of the past, but to the incentives of the present.By the end of the arguments, it was clear: what the justices will write will be a 9-0 or 8-1 decision (only Sonia Sotomayor voiced much dissent) saying that section three is not self-enacting, or at any rate that the states cannot enact it themselves. They will have arrived at this conclusion not because the argument was made persuasively or at all by Trump attorney Mitchell – it wasn’t – and not because it is the place where the text compels them to arrive – it isn’t. They will instead have fabricated this reasoning out of whole cloth, because it gets them out of an inconvenient question: the question of whether the constitution’s substantive protections for democracy can withstand the stress Trump applies to them.One point that several of the justices touched on, and which has been taken up by those skeptical of the Colorado case and similar efforts to disqualify Trump from office on 14th amendment grounds, is the notion that his disqualification would be somehow anti-democratic, disenfranchising the people who would like to vote for him and would not get a chance to.But democracy means more than the simple ability to vote; it requires a commitment to constitutional principles – to the limits of an office, to the rights of the minority, to the separation of private and public interests among those in power and to the willingness to place the dignity of the country before the petty preferences of the man who leads it.Trump has no intention of upholding these principles. We know: he tells us all the time. To disqualify him would not be to undermine democracy but to protect it, by averting the seizure of the republic by the man who has been quite frank about his intention to destroy it.Meanwhile, section three of the 14th amendment now seems set to be orphaned – denied its status as self-effecting, curtailed in its enforcement by the states. If section three is still the law, and if insurrectionists are still barred from taking federal office, then how can this law be enforced? And that’s where the court, in its apparent effort to avoid having to take much of a stand on the issue, seems to have planted a loaded gun. Because if states can’t enforce the ban on insurrectionists in office, then only Congress can. And where would Congress do that? At the certification of the electoral votes – on 6 January 2025.
      Moira Donegan is a Guardian US columnist More

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      US supreme court justices skeptical about removing Trump from ballot – video report

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      The US supreme court heard arguments on whether former president Donald Trump should be removed from the ballot on Thursday after Colorado voters filed a lawsuit last year alleging he was ineligible to run for president under a little-used provision of the constitution’s 14th amendment.

      Most justices, liberal and conservative, seemed skeptical of Colorado’s arguments and seemed to agree that states could not act without action from Congress More

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      Biden described as ‘elder man with poor memory’ in damning classified document report – live

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      Special counsel Robert Hur wrote that he was concerned jurors would not believe that Joe Biden “willfully” kept classified documents, and that was one of the reasons why he does not think the president should face charges.“We have also considered that, at trial, Mr. Biden would likely present himself to a jury, as he did during our interview of him, as a sympathetic, well-meaning, elderly man with a poor memory,” Hur writes.“Based on our direct interactions with and observations of him, he is someone for whom many jurors will want to identify reasonable doubt. It would be difficult to convince a jury that they should convict him – by then a former president well into his eighties – of a serious felony that requires a mental state of willfulness.”Hur wrote that: “Mr. Biden’s memory was significantly limited, both during his recorded interviews with the ghostwriter in 2017, and in his interview with our office in 2023. And his cooperation with our investigation, including by reporting to the government that the Afghanistan documents were in his Delaware garage, will likely convince some jurors that he made an innocent mistake, rather than acting willfully – that is, with intent to break the law – as the statute requires.”In addition to the statement from Donald Trump himself, Make America Great Again Inc. – a super PAC supporting the former president’s campaign for election in 2024, has released its own comment on Hur’s report.“If you’re too senile to stand trial, then you’re too senile to be president,” said Alex Pfeiffer, communications director for Make America Great Again Inc. “Joe Biden is unfit to lead this nation.”Former president Donald Trump has released a statement via his campaign regarding the findings in the report from Robert Hur, saying “THIS HAS NOW PROVEN TO BE A TWO-TIERED SYSTEM OF JUSTICE AND UNCONSTITUTIONAL SELECTIVE PROSECUTION!” [sic].Trump referenced his own classified documents case, in which he is charged of willful retention of national defense information, false statements and representations, conspiracy to obstruct justice, withholding a document or record, corruptly concealing a document, concealing a document in a federal investigation and a scheme to conceal. That case is expected to go to trial in May 2024.
      The Biden Documents Case is 100 times different and more severe than mine. I did nothing wrong, and I cooperated far more. What Biden did is outrageously criminal – He had 50 years of documents, 50 times more than I had, and “WILLFULLY RETAINED” them. I was covered by the Presidential Records Act, Secret Service was always around, and GSA delivered the documents. Deranged Jack Smith should drop this Case immediately. ELECTION INTERFERENCE.
      Republican chairman James Comer of the House committee on oversight and accountability has issued the following statement on the report from special counsel Robert Hur:
      Americans expect equal justice under the law and are dismayed the Justice Department continues to allow Joe Biden to live above it. Joe Biden willfully retained classified documents for years in unsecure locations and intentionally disclosed them yet faces no consequences for his actions. The House Oversight Committee has been investigating Joe Biden’s mishandling of classified documents and we have uncovered key facts that unravel the White House’s and President Biden’s personal attorney’s narrative of events. Additionally, important questions remain about the extent of Joe Biden retaining sensitive materials related to specific countries involving his family’s influence peddling schemes that brought in millions for the Bidens. While the Justice Department has closed its investigation, the Oversight Committee’s investigation continues. We will continue to provide the transparency and accountability owed to the American people.
      In addition to the statement, Comer said the White House was not cooperating with interviews the committee has requested with current and former White House staff who were involved with organizing, moving and removing boxes that contained classified materials.He stated that the report confirmed Biden retained documents related to China and Ukraine, “two countries the Bidens have solicited and received millions of dollars from”.You can read special counsel Robert Hur’s report into Joe Biden’s possession of classified documents, as well as the rebuttal from the president’s attorneys, below:Attorneys for Joe Biden objected to special counsel Robert Hur repeatedly mentioning the president’s memory problems in his report.Referring to his conversation with Mark Zwonitzer, ghostwriter of his 2017 memoir Promise Me, Dad, Hur writes: “Mr. Biden’s recorded conversations with Zwonitzer from 2017 are often painfully slow, with Mr. Biden struggling to remember events and straining at times to read and relay his own notebook entries.”He later goes on to describe Biden as showing “diminished faculties and faulty memory” in his conversations with Zwonitzer.In a letter written to Hur dated earlier this week and included in the report, the president’s special counsel Richard Sauber and personal attorney Bob Bauer took issue with the special counsel’s language:
      We do not believe that the report’s treatment of President Biden’s memory is accurate or appropriate. The report uses highly prejudicial language to describe a commonplace occurrence among witnesses: a lack of recall of years-old events. Such comments have no place in a Department of Justice report, particularly one that in the first paragraph announces that no criminal charges are ‘warranted’ and that ‘the evidence does not establish Mr. Biden’s guilt.’
      They continue:
      Not only do you treat the President differently from other witnesses when discussing his limited recall of certain years-ago events, but you also do so on occasions in prejudicial and inflammatory terms. You refer to President Biden’s memory on at least nine occasions – a number that is itself gratuitous.
      Sauber and Bauer requested Hur “revisit your descriptions of President Biden’s memory”. He apparently did not do so.Special counsel Robert Hur included in his report photos of where Joe Biden’s classified documents were stored:In a just-released statement, Joe Biden said he “threw up no roadblocks” to Robert Hur’s investigation of his possession of classified documents, and notes he spoke to the special counsel even in the aftermath of Hamas’s 7 October attack on Israel.The president’s comments came after Hur’s report noted that it would be difficult to convince jurors the “elderly” Biden intentionally kept government secrets, and related his inability to remember important dates during interviews with the special counsel.Here’s what Biden had to say, in full:
      The Special Counsel released today its findings about its look into my handling of classified documents. I was pleased to see they reached the conclusion I believed all along they would reach – that there would be no charges brought in this case and the matter is now closed.This was an exhaustive investigation going back more than 40 years, even into the 1970s when I was a young Senator. I cooperated completely, threw up no roadblocks, and sought no delays. In fact, I was so determined to give the Special Counsel what they needed that I went forward with five hours of in-person interviews over two days on October 8th and 9th of last year, even though Israel had just been attacked on October 7th and I was in the middle of handling an international crisis. I just believed that’s what I owed the American people so they could know no charges would be brought and the matter closed.Over my career in public service, I have always worked to protect America’s security. I take these issues seriously and no one has ever questioned that.
      Special counsel Robert Hur wrote that in an interview last year, Joe Biden struggled to recall key chapters in his personal and professional life:
      In his interview with our office, Mr. Biden’s memory was worse. He did not remember when he was vice president, forgetting on the first day of the interview when his term ended (“if it was 2013 – when did I stop being Vice President?”), and forgetting on the second day of the interview when his term began (“in 2009, am I still Vice President?”). He did not remember, even within several years, when his son Beau died. And his memory appeared hazy when describing the Afghanistan debate that was once so important to him. Among other things, he mistakenly said he “had a real difference” of opinion with General Karl Eikenberry, when, in fact, Eikenberry was an ally whom Mr. Eiden cited approvingly in his Thanksgiving memo to President Obama.
      Biden’s lack of ability to remember things would make it hard to prosecute him, Hur said:
      We also expect many jurors to be struck by the place where the Afghanistan documents were ultimately found in Mr. Biden’s Delaware home: in a badly damaged box in the garage, near a collapsed dog crate, a dog bed, a Zappos box, an empty bucket, a broken lamp wrapped with duct tape, potting soil, and synthetic firewood.
      A reasonable juror could conclude that this is not where a person intentionally stores what he supposedly considers to be important classified documents, critical to his legacy. Rather, it looks more like a place a person stores classified documents he has forgotten about or is unaware of. We have considered – and investigated – the possibility that the box was intentionally placed in the garage to make it appear to be there by mistake, but the evidence does not support that conclusion.
      Special counsel Robert Hur wrote that he was concerned jurors would not believe that Joe Biden “willfully” kept classified documents, and that was one of the reasons why he does not think the president should face charges.“We have also considered that, at trial, Mr. Biden would likely present himself to a jury, as he did during our interview of him, as a sympathetic, well-meaning, elderly man with a poor memory,” Hur writes.“Based on our direct interactions with and observations of him, he is someone for whom many jurors will want to identify reasonable doubt. It would be difficult to convince a jury that they should convict him – by then a former president well into his eighties – of a serious felony that requires a mental state of willfulness.”Hur wrote that: “Mr. Biden’s memory was significantly limited, both during his recorded interviews with the ghostwriter in 2017, and in his interview with our office in 2023. And his cooperation with our investigation, including by reporting to the government that the Afghanistan documents were in his Delaware garage, will likely convince some jurors that he made an innocent mistake, rather than acting willfully – that is, with intent to break the law – as the statute requires.”In his report, special counsel Robert Hur outlines how Joe Biden “willfully” disclosed classified documents, but says the available evidence does not establish the president’s guilt beyond a reasonable doubt.“Our investigation uncovered evidence that President Biden willfully retained and disclosed classified materials after his vice presidency when he was a private citizen,” Hur wrote in the report’s executive summary. “These materials included (1) marked classified documents about military and foreign policy in Afghanistan, and (2) notebooks containing Mr. Biden’s handwritten entries about issues of national security and foreign policy implicating sensitive intelligence sources and methods. FBI agents recovered these materials from the garage, offices, and basement den in Mr. Biden’s Wilmington, Delaware home.”Justice department policy prohibits bringing charges against a president while they are in office, but Hur notes that, even if that were not the case, he would not recommend charging Biden.The special counsel then goes in to why he does not think jurors would convict Biden. The reasons include evidence suggests Biden simply forgot he had classified material, or that jurors believed that when he found it, he would not have realized he was breaking the law, because the former vice-president was so used to seeing such documents.The White House was provided a copy of special counsel Robert Hur’s report into Joe Biden’s possession of classified documents, and reviewed it to determine if it revealed privileged information.Ian Sams, a spokesman for the White House counsel, said no changes were made: “We notified the justice department at approximately 9.00 this morning that our privilege review has concluded. In keeping with his commitment to cooperation and transparency throughout this investigation, the president declined to assert privilege over any portion of the report.”There will be no criminal charges filed in the classified documents investigation involving Joe Biden, Reuters is reporting, citing MSNBC, which is attributing that to an unnamed law enforcement official.More details soon.Meanwhile, Trump and Biden’s classified documents cases (in which the former president has been criminally charged and the current president has not) have similarities, there are also some notable differences.The White House said Biden’s attorneys found a small number of classified documents and turned them over after discovery.Trump resisted handing over boxes of classified material until a 2022 FBI search turned up about 100 classified documents, leading to obstruction of justice charges against Trump and two employees at his Mar-a-Lago resort in Palm Beach, Florida.The White House said Biden and his team have cooperated with special counsel Robert Hur and his investigators. Biden cannot face federal criminal charges as a sitting president under a longstanding justice department policy.The findings could pose political headaches for Biden who has sought to draw a contrast with Trump on issues of personal ethics and national security.Hur’s report, and his decision not to bring criminal charges, are likely to fuel accusations of a double standard from Trump and his Republican allies.[But] Trump was charged after prosecutors said he refused for months to turn over boxes containing presidential records he had taken to Mar-a-Lago and took steps to conceal the documents after the US government demanded their return. Trump has pleaded not guilty and a trial is scheduled for May but is likely to be delayed.The special counsel in the Biden classified documents investigation focused on documents related to Biden’s service as vice-president in the Obama administration from 2009-2017 and from his prior tenure in the US Senate, Reuters reports.Members of Joe Biden’s legal team found classified papers at the office of his Washington thinktank and the US president’s personal residence in Wilmington, Delaware.Biden’s lead rival in the November election, former president Donald Trump, faces a 40-count federal indictment for retaining highly sensitive national security documents at his Florida resort after leaving office in 2021 and obstructing US government efforts to retrieve them.The US Congress has been handed the special counsel report on Joe Biden’s handling of classified documents dating to his years as vice-president to Barack Obama, Reuters is reporting, citing an unnamed source familiar with the matter.The US president was interviewed by special counsel Robert Hur last October and the case relates to actions taken before Biden took the White House.Earlier last year US attorney general Merrick Garland appointed Hur to investigate Biden’s retention of classified documents from his time as vice-president.At the time, lawyers for Biden reported having found classified documents at his home and former thinktank.One day after he strengthened regulations on soot pollution, EPA Administrator Michael Regan spoke about pollution controls’ impact on children at an environmental advocacy event in Washington DC.“This is deeply personal for me,” he said. “Every morning when I leave the house I’m kissing my ten year old son on the forehead and hoping to be the best dad and the best administrator that I can.”Regan described Thursday’s new soot rule as a “gamechanger,” especially for young people, whose developing bodies are more vulnerable to the health effects of pollution – and who face various other hardships.“This is one thing we’re taking off their plates,” he said.Regan spoke at a meeting held by national environmental advocacy group Moms Clean Air Force on Thursday at the National Press Club.Brenda Mallory, chair of the White House Council on Environmental Quality, spoke earlier in the day about the Biden administration’s attempts to “infuse principles of justice and equity into everything.”She touted one Biden administration program which allots 40% of certain environmental federal investments to communities most affected by the climate crisis and pollution.Former first daughter Chelsea Clinton also spoke about environmental pollution at the event at the National Press Club.“We know that in our warming climate, the dangers are particularly acute for our youngest,” she said.Clinton spoke the children-focused efforts she is helming at the Clinton Foundation, of which she is vice-chair. One project: partnering with advocates working to keep schools open year-round, since they serve as not only educational facilities but also as cooling centers in many communities.The Thursday event convened youth advocates, doctors, environmentalists, and public health advocates who called on Americans to work together to push for better regulations on air pollution.“Your voice does matter,” said Nsedu Obot Witherspoon, who directs the Children’s Environmental Health Network. “A lot can really happen when mothers, parents, teachers, come together”Moms Clean Air Force, an national environmental advocacy group, held a summit at the National Press Club on Thursday, featuring guests including Chelsea Clinton and Environmental Protection Agency administrator Michael Regan.Founded in 2011, the organization works to strengthen protections from planet-heating and toxic pollution. It is made up of 1.5 million members, many of whom are mothers.The event comes amid increasing public concern about the climate crisis and pollution, and before a presidential election that will prove crucial for environmental policy in the US.The Biden administration is currently rushing to finalize key environmental protections, including tightened standards on emissions from power plants and vehicles’ tailpipes.“We have enormous challenges in front of us,” said Dominique Browning, co-founder and director of Moms Clean Air Force.“We have never felt greater urgency to get things done.”Paul Billings, who is national senior vice president of public policy at the American Lung Association and was a panelist at Thursday’s event, said that in recent decades, political polarization has proved a major challenge in passing environmental protections. It should not be, he said, because “everyone has lungs.”Panelists also discussed the ways children are disproportionately harmed by pollution and global warming, because their smaller, developing bodies are more vulnerable to health risks.Another major challenge: the rise of mental health issues tied to concern about the climate crisis.“We’re seeing more and more children who are presenting with climate anxiety,” Dr Lisa Patel, executive director of the Medical Society Consortium on Climate and Health and pediatric hospitalist, said.After about two hours of arguments, the supreme court’s nine justices seemed broadly skeptical of the effort to keep Donald Trump from the presidential ballot over his involvement in the January 6 insurrection. It is unclear when they will issue a ruling. Across the street at the Capitol, the Senate advanced a measure providing assistance to Ukraine, Israel and Taiwan, following a botched attempt to also include hardline immigration policy changes Republicans demanded, then decided they did not like. The GOP wants to make amendments to the legislation, and it’s unclear what its reception will be in the House, but progress on this long-running negotiation appears to finally be happening.Here’s a recap of the day’s events thus far:
      Trump listened in to the supreme courts arguments, which, to his ears, sounded “beautiful”.
      Jason Murray, an attorney for the people challenging Trump’s eligibility, warned the supreme court that the question could “could come back with a vengeance” if he is allowed to run.
      Law professor Derek Muller of the University of Notre Dame predicted the high court would rule quickly.
      The Senate’s vote to advance a bill that will provide assistance to three countries Washington considers national security priorities is a sign of progress in what has been a tortuous and chaotic process.Democrats have wanted for months to approve aid to the three countries, but the GOP, which controls the House and can block passage of legislation in the Senate using the filibuster, demanded they also agree to hardline immigration policy changes. But when those changes were announced earlier this week after months of bipartisan negotiation, Republicans decided they did not like them either, and Republican House speaker Mike Johnson said a bill pairing the border security changes with foreign aid money would not get a vote in his chamber.Yesterday, the Senate voted down that version of the legislation after Republicans and some Democrats objected. The Democratic majority leader Chuck Schumer immediately moved to put up for a vote the legislation that funds only Israel, Ukraine and Taiwan, without addressing immigration policy at all. The Senate just a few minutes ago voted to advance that legislation.But the story is far from over. It’s unclear if the House will approve the legislation, and Schumer said Senate Republicans want to make amendments before final passage:
      We hope to reach an agreement with our Republican colleagues on amendments. Democrats have always been clear that we support having a fair and reasonable amendment process. During my time as majority leader, I have presided over more amendment votes than the Senate held in all four years of the previous administration. For the information of senators, we are going to keep working on this bill until the job is done. More

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      in US Politics

      Consequences weigh heavily for justices at Trump 14th amendment hearing

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      In the end, the supreme court justices displayed little interest in the finer details of constitutional law, which normally pays their salaries and over which the country has been obsessing now for days.Who is an “officer of the United States”? Leave that to one side. Should the 14th amendment’s disqualification of insurrectionists in federal posts apply only to office holders or can it also be deployed against electoral candidates? Let’s come back to that.Even the big question – did Donald Trump engage in insurrection in luring his supporters to the US Capitol on 6 January 2021 – barely got a look in at Thursday’s historic oral arguments. Only one of the nine justices, the liberal-leaning Ketanji Brown Jackson, asked a single question of Trump’s lawyer, Jonathan Mitchell, inviting him to state his position on such a vexed and burning issue.No, Trump did not, Mitchell predictably replied, in part because an insurrection had to be “an organized, concerted effort to overthrow the government”. Jackson shot back with the forensic wit that in her 18 months on the mahogany bench has become her trademark.“And so a chaotic effort to overthrow the government is not an insurrection,” she said. It was a rare moment of release in more than two hours of dense legal discussion.What the justices were, almost to an individual, concerned to talk about was what the consequences of their judgment would be, both for American democracy and for their own standing. Should they side with the Colorado supreme court, and remove Trump from the ballot, then what?Elena Kagan, another of the three liberal-leaning justices, wanted to know whether a victory for Colorado would effectively impose that state’s decision to cast Trump into the wilderness on the voters of all other states. “Why should a single state have the ability to make this determination not only for their own citizens but for the rest of the nation?” she pondered.Samuel Alito, one of the hard rightwingers on the court, wondered whether the logic of Colorado’s argument – that a federal office holder who committed insurrection should immediately and automatically be disqualified – would allow military officers to cease obeying a president’s orders from the Oval Office.John Roberts, the chief justice, looked inward, asking himself what the consequences of stripping Trump from the Colorado ballot would be for his own court. He painted a picture of a dystopian world in which a ruling that sided with Colorado would unleash a flood of partisan challenges from other states under the insurrection clause, each of them with different standards of proof and evidentiary rules.“In very quick order, a goodly number of states will say, whoever the Democratic candidate is, ‘You’re off the ballot’, and others, for the Republican candidate, ‘You’re off the ballot’, and it will come down to just a handful of states that are going to decide the presidential election. That’s a pretty daunting consequence.”Not least for Roberts himself. “We will be deciding whether there was an insurrection when one president did something, as opposed to when somebody else did something else. So what do we do?”For Roberts, this was more than merely a question about possible future workload. It was far more existential than that: it was a heartfelt cry that the court should avoid being dragged into the contentious thick of presidential elections, where only grief could lie.As time ticked on, and the arguments continued, it became clear that the Roberts’ view – pragmatic, cautious, allergic to future controversy – was widely shared by almost all the justices. Such uniformity of opinion raises the prospect of a rapid decision in coming days, with an 8-to-1 vote or even 9-to-0 being eminently possible (the only point of uncertainty being the third liberal justice, Sonia Sotomayor, who contributed little).Such an outcome would make Roberts the second biggest winner of the day. He will hope that a unanimous or near-unanimous ruling on such an explosive issue will help redeem the court amid growing public skepticism over its many corruption scandals and blatantly partisan rightwing jurisprudence.skip past newsletter promotionafter newsletter promotionThe chief justice is only too well aware of the low esteem in which his court is already held by the American people, and he is desperate to avoid further slippage. A recent NBC News poll found that only 28% had a positive view of the justices, the lowest rating in the poll’s history.The biggest winner, of course, is Trump. Barring a major surprise, the court is all but certain to overturn the Colorado ruling and keep the former president back on the ballot. After the pounding he has taken from the courts in recent days, it will mark a rare – and no doubt heavily-exploited – victory.There is one other aspect to the winners and losers from Thursday’s deliberations, and it’s the most important one of all. How does democracy come out of all this?Brett Kavanaugh, one of three rightwing justices appointed by Trump, was clear that keeping the former president on the ballot was a win from democracy. “What about the idea that we should think about democracy, and the right of the people to elect candidates of their choice? Your position has the effect of disenfranchising voters,” he told the lawyer representing the Colorado plaintiffs, Jason Murray.It was one of several critical comments directed at Murray from the bench. But it invoked a parting warning from the lawyer.Should Trump win in November, the question of an insurrectionist returning to the White House will not have gone away. In words that may yet haunt the court, he said: “I think it could come back with a vengeance.” More

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      Removing Donald Trump from ballot could have ‘daunting consequence’, says chief justice – video

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      The chief justice of the US supreme court, John Roberts, argued that removing Donald Trump from states’ primary ballots for the presidential election could mean some states would remove the Democratic candidate, some states would remove the Republican candidate, leaving the presidential election to just a few states.

      A majority of justices, including some from the court’s liberal wing, voiced concern about the chaos that would ensue if they allowed states to decide whether to disqualify candidates when they debated Colorado’s decision to rule Trump ineligible to run for office for inciting insurrection More

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      in Elections

      US supreme court hearing focuses on Trump’s eligibility for 2024 election

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      The US supreme court will hear oral arguments on Thursday morning in the high-stakes case that will probably determine whether Donald Trump is eligible to run for president this year.The case, Donald J Trump v Norma Anderson et al, came about after six Colorado voters filed a lawsuit last year alleging Trump was ineligible to run for president under a little-used provision of the constitution’s 14th amendment. The provision says that any member of Congress or officer of the United States who takes an oath to defend the constitution and then subsequently engages in insurrection is barred from holding office. The ban can only be overridden by a two-thirds vote by both chambers of Congress.Trump’s conduct during the January 6 Capitol attack disqualifies him from holding federal office, the Colorado voters claimed in their suit, filed last year in state court. After a five-day trial, a judge found Trump had engaged in insurrection, but was not an “officer of the United States” and declined to remove him from the ballot. In a 4-3 decision in December, the Colorado supreme court reversed that ruling and barred him from the ballot. The supreme court agreed to hear the case in January.While there have been several suits seeking to remove Trump from the ballot, only Colorado and Maine have done so thus far. A Maine judge last month ordered the secretary of state there to hold off on excluding Trump until the US supreme court issued a decision.A decision upholding the Colorado supreme court’s ruling would not automatically remove Trump from the ballot across the country. While some states have rebuffed efforts to remove Trump from the primary ballot, a supreme court saying Trump can be disqualified would probably set off a flurry of fast challenges in state courts and other tribunals to disqualify him from the ballot in the general election.It’s generally believed that Trump has the upper hand at the court, where conservatives have a 6-3 supermajority and Trump nominated three of the justices. Still, experts say there is a high degree of uncertainty over what exactly the court will do because it has chosen not to limit the scope of arguments before it and the issues are so unprecedented.In their briefing to the supreme court, Trump’s lawyers have claimed there will be “chaos and bedlam” in the US if a leading presidential candidate is blocked from the ballot. They gave an array of arguments to the justices for why he should not be disqualified, including that the word “officer” does not apply to the president and that he did not engage in insurrection.“In our system of ‘government of the people, by the people, [and] for the people’, the American people – not courts or election officials – should choose the next President of the United States,” Trump’s lawyers wrote. “The Colorado voters, backed by the left-leaning non-profit Citizens for Responsibility and Ethics in Washington (Crew), argue that it is absurd to claim the 14th amendment does not apply to the presidency and that it would be a danger to democracy to allow him to hold office again.skip past newsletter promotionafter newsletter promotion“Section 3 is designed precisely to avoid giving oath-breaking insurrectionists like Trump the power to unleash such mayhem again,” they write. “Nobody, not even a former President, is above the law.”There is no legal precedent for the case – the justices will be wrestling with the key issues in the case, including whether Trump committed insurrection on January 6 for the first time. The 14th amendment was enacted after the civil war to bar former Confederates from holding office and has never been used to bar a presidential candidate. In 2022, the amendment was used to remove a New Mexico county commissioner from office, the first time it had been used that way in a century.The case marks the court’s most direct intervention in a presidential election since its controversial decision in Bush v Gore in 2000. Seeking to preserve its reputation as an apolitical body, the court is usually hesitant to get involved in heated political disputes, but the arrival of the Trump case makes the court’s intervention in the most controversial of political cases unavoidable. It comes as public confidence in the court continues to decline amid a series of ethics scandals and politically charged decisions. More