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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

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      ‘We were a voice in the wilderness’: the groups fighting to keep Trump off the ballot

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      A US supreme court case that could remove Donald Trump from the 2024 presidential ballot is the culmination of several years of work by left-leaning watchdog groups to reinvigorate the 14th amendment and its power.A Colorado case that found Trump couldn’t run for re-election there was filed by Citizens for Responsibility and Ethics in Washington (Crew), though other groups and individuals have filed lawsuits and petitions in many states trying to remove Trump under the 14th amendment’s third clause. The clause says that people who were in office and participated in an insurrection against the US can’t hold office again.Some of the challenges have gone through the courts, while others have appealed directly to elections officials in charge of placing candidates on the ballot. Colorado was the first ruling to decide against Trump, so it is headed to the supreme court at the former president’s behest. Because of how consequential and rare the issue is, it was expected that the high court would eventually be the arbiter of how the clause applied in the modern era.Crew, a non-profit that has focused in part on Trump corruption issues since he took office, researched the 14th amendment and found it was “really built for this moment”, said Noah Bookbinder, the organization’s president. The group first brought a test case against a local elected official in New Mexico who participated in the January 6 insurrection. Couy Griffin, then a county commissioner in Otero county, New Mexico, was removed from office for violating the 14th amendment.“We would have ideally liked to bring a number more of those kinds of cases to really establish more of a track record and some more precedent,” Bookbinder said. “Donald Trump sort of forced our hand because this was the person who had really, really landed this attack on a democracy.”Crew challenged Trump just in Colorado, which became the first state to rule Trump ineligible, but it isn’t the only group working on 14th amendment cases. Another non-profit has been working on keeping Trump off the ballot for several years.Free Speech for People, an advocacy non-profit founded in the wake of the Citizens United ruling in 2010, focused on Trump corruption cases soon after the former president took office. It was among the first groups to call for Trump’s impeachment.In 2021, Free Speech for People wrote letters to secretaries of state around the country alerting them to the 14th amendment and how it would affect Trump if he ran again. In 2022, Free Speech for People challenged several members of Congress, including Marjorie Taylor Greene and Madison Cawthorn, on 14th amendment grounds, though the cases weren’t successful at preventing them from running. Once Trump was officially a candidate, the group filed lawsuits challenging his eligibility in Minnesota, Michigan, Oregon, Illinois and Massachusetts.“Back in the middle of 2021, we were kind of a voice in the wilderness,” said Ben Clements, the board chair and senior legal adviser to Free Speech For People. “There wasn’t a lot of support for this view, and that’s obviously changed a lot.”The concept received a boost from two conservative law professors, William Baude and Michael Stokes Paulsen, who wrote a law review article in August 2023 arguing that Trump could not hold office again based on their reading of the constitution.Aside from the two major groups bringing cases, one man has filed lawsuits in various states without legal representation. John Anthony Castro, a Texas Republican and frequent candidate for various offices who says he is also running for president, has challenged Trump’s eligibility in the most states, with no success. Castro, a tax-return preparer, was recently indicted himself for filing false tax returns.And individual voters or groups of voters have challenged Trump’s eligibility in their states as well. In Maine, voters brought their challenge to the secretary of state, Shenna Bellows, who decided Trump should not be placed on the ballot there. Maine’s challenge is on hold pending the outcome of the supreme court case.Crew and Free Speech for People hope the supreme court gives a thorough ruling on all facets of the case to provide legitimacy for the court’s decision and indicate what should happen next. If Trump is removed from the ballot, challenges could pop up in many more states against the ex-president and others.“We really think as a legal and factual matter that the courts have to get into the meat of it,” Bookbinder, of Crew, said. “But we also think that that is better for the country for the court to give some clarity on the core issues.” More

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      in Elections

      US supreme court to hear arguments on keeping Trump off 2024 ballot

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      The US supreme court will hear oral argument on Thursday in one of the most high-stakes cases in American politics this century, thrusting a beleaguered court to the center of the 2024 election.The court is considering whether Donald Trump is eligible to run for president. The novel legal question at the heart of the case, Donald J Trump v Norma Anderson et al, is whether the 14th amendment to the constitution prohibits Trump from holding office because of his conduct on 6 January 2021. Section 3 of the amendment says that any member of Congress or officer of the United States who takes an oath to protect the constitution and then subsequently engages in insurrection cannot hold office. That ban, the amendment says, can only be overridden by a two-thirds vote of each house of Congress.There is no precedent for the case. The 14th amendment, enacted after the civil war, has never been used to challenge the eligibility of a presidential candidate, but the idea began picking up steam after two conservative legal scholars published a 126-page law review article last summer arguing the amendment clearly disqualified Trump.A group of Colorado voters sued under the law last year, relying on the theory to try to disqualify Trump from the ballot. After a five-day trial, a Colorado district court judge said Trump had committed insurrection, but was not disqualified because he was not an officer of the United States. The Colorado supreme court reversed that ruling in December, removing Trump from the ballot in a 4-3 decision. While lawsuits have been filed in dozens of other states seeking to remove Trump from the ballot, only Colorado and Maine have done so thus far.The justices accepted a request from Trump to hear the case and expedited its review because of Colorado’s fast approaching 5 March primary. The compressed schedule and likely quick turnaround of the case means that oral argument – currently set for 80 minutes on Thursday – could offer an unusual level of insight into how the justices are weighing the arguments.“I feel more at sea than I usually do,” said Richard Hasen, an election law professor at the University of California Los Angeles, who co-authored an amicus brief urging the court to rule definitively on the case now. “There are a million ways the court can go. The court has given no signal, at all, as to which of those directions it wants to go in. And so, more than usual, I’m going to be very closely listening to the oral arguments to see which arguments are resonating with which justices.”The case also arrives at a perilous moment for the court itself. Public confidence in the court has been declining, exacerbated by a series of ethics scandals and controversial decisions that came down along ideological lines. The court is essentially now seen as a political body and as a result, the betting money seems to be that they will find a way to keep him on the ballot. Trump appointed three of the six justices in the supermajority on the body.“I don’t think it wants to be involved in these disputes. I think, on a bipartisan basis, there’s an interest on staying as far away from these issues as possible,” said Derek Muller, a law professor at the University of Notre Dame, who wrote an amicus brief in the case that wasn’t in support of either party.Trump’s lawyers offer five reasons to the court for why he should not be disqualified from the ballot. First, they argue that the word “officer” in the 14th amendment does not apply to the presidency. His lawyers also argue that his conduct on 6 January did not amount to insurrection and that the 14th amendment cannot be enforced absent implementing legislation from Congress. Last, they say, the Colorado supreme court cannot invent its own criteria for running for president nor can it interfere with the method the legislature has chosen for selecting presidential electors.The idea that the president isn’t an officer is nonsensical, lawyers for the six Colorado voters – four Republicans and two independents – who filed the case wrote in their own brief. “Section 3 does not give a free pass to insurrectionist former Presidents. The Constitution says the Presidency is a federal ‘office’. The natural meaning of ‘officer of the United States’ is anyone who holds a federal ‘office’,” they write.Trump’s arguments to the court essentially amount to the idea that “somehow there’s a Donald Trump specific loophole”, said Donald Sherman, a lawyer with Citizens for Responsibility and Ethics in Washington, which represents the Colorado voters.“Donald Trump’s arguments are not about January 6. They’re not about the fundamental goal of Reconstruction, the Reconstruction amendments, or the 14th amendment. Or section 3. They’re basically about creating an exception that allows Donald Trump to wriggle out of accountability.”They also point out that Trump’s conduct on 6 January would have clearly been understood to amount to insurrection by the framers of the 14th amendment. “The original public meaning of “engag[ing] in” insurrection extends to those who organize and incite it,” they wrote.The brief also notes that the federal constitution gives states the power to only allow candidates who are qualified to appear on the ballot – no federal legislation is necessary to enforce that.“The more I spend time on this case, the harder it seems for Trump,” Muller said. “I don’t think the court is interested in one-offs. The notion that the Colorado supreme court got Colorado law wrong is not gonna interest the court.”skip past newsletter promotionafter newsletter promotionThe challengers in the case have been bolstered by amicus briefs from historians who argue that the public would have understood the 14th amendment to apply to the president and to cover the kind of conduct Trump engaged in. Those kinds of arguments could hold sway with the court’s conservative justices who are professed adherents of originalism – understanding the constitution through its original public meaning.Hasen predicted the court would try to resolve the case without addressing of whether Trump engaged in insurrection – the most politically charged issue in the case.“I was thinking what are ways the court can side with Trump without weighing in on the merits of whether he committed insurrection,” he said. “One of them is Congress has to pass a statute [to enforce the disqualification provision]. If I had to lay down money on how Trump would win if he wins, I guess I’d put a few dollars down on that, but I’m not betting the farm.”A ruling upholding the Colorado supreme court’s decision would not mean that Trump would be automatically kicked off the ballot in every US state. Instead, each state would probably have to have its own legal proceedings to determine whether or not he should appear. Some states have already rejected such efforts ahead of the primary, setting up a potentially confusing and chaotic legal sprint to the general election.“I think people think if they say he’s ineligible it’s gonna end it, but it’s not,” Muller said. “It would be a state-by-state basis in the primary. He could still win the primary so there’s this whole separate layer of what the RNC would do at a convention if its candidate would be kept off the ballot in some states.”At the core of the case are two competing ideas of democracy. Trump and his attorneys argue that any effort to kick him off the ballot would be anti-democratic since it would prevent voters from choosing their preferred candidate for the presidency.“The court should put a swift and decisive end to these ballot-disqualification efforts, which threaten to disenfranchise tens of millions of Americans and which promise to unleash chaos and bedlam if other state courts and state officials follow Colorado’s lead and exclude the likely Republican presidential nominee from their ballots,” Trump’s lawyers wrote.The challengers and their supporters argue that protecting democracy requires banning those who attempt to subvert democracy from holding higher office. “Our democracy is not a chaotic free-for-all in which anyone can be elected. The voters are entitled to decide within the framework of the applicable rules,” the good government group Common Cause wrote in an amicus brief supporting the challengers.“If Section 3 of the Fourteenth Amendment (“Section 3”) is not enforced in this case, there is a genuine risk that our system of government will not survive,” they wrote. More

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      in Elections

      ‘The threat isn’t over’: the expert arguing to the supreme court Trump is an insurrectionist

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      When Jill Habig had an office down the hall from Kamala Harris in California, Barack Obama was US president, abortion was a constitutional right and January 6 was just another date on the calendar. A lot has happened since then.On Thursday Habig, now president of the non-profit Public Rights Project (PRP), hopes her arguments will persuade the supreme court that Donald Trump is an insurrectionist who should be disqualified from the 2024 presidential election.Habig has filed an amicus brief on behalf of historians contending that section 3 of the 14th amendment to the constitution, which bars people who “engaged in insurrection” from holding public office, applies to Trump’s role in the January 6, 2021 attack on the US Capitol.The brief gives the supreme court’s originalists, who believe the constitution should be interpreted as it would have been in the era it was written, a taste of their own medicine. Conservative justices Clarence Thomas, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett are self-declared originalists while Samuel Alito has described himself as a “practical originalist”.“Our goal was to bring an originalist historical perspective to the supreme court as it considered the meaning of section 3 of the 14th amendment,” Habig, a former special counsel to then California attorney general Harris, says by phone from Oakland. “The point we make with our historian colleagues is that the history of section 3 is actually very clear. It demonstrates that section 3 was intended to automatically disqualify insurrectionists.”The amicus brief, led by historians Jill Lepore of Harvard and David Blight of Yale, cites debates from the time in which senators made clear that their view that the provision that would not only apply for former Confederates but to the leaders of rebellions yet to come.View image in fullscreenHabig adds: “It was intended to apply not only to the civil war but also to future insurrections and it bars anyone who has betrayed an oath to uphold the constitution from becoming president of the United States.”The supreme court will hear arguments on a Colorado case in which Trump was stricken from the ballot; a decision in Maine is on hold. Other states have ruled in favor of keeping Trump on the ballot. The flurry of decisions have prompted debate over whether Trump can be fairly considered to have committed insurrection even though he has not been found guilty in a court of law – at least not yet.Habig, who founded the PRP in 2017, says yes. “It’s clear historically that there was no requirement of a conviction or even of charges, that the framers intended section 3 to be self-executing. The brief goes through a number of examples of people who had taken part in the secession and been on the Confederate side actually petitioning Congress for exceptions. There’s a lot of evidence that it was self-executing. There was no need for a particular conviction.”She adds: “The evidence that we have seen and heard and watched with our own eyes over the last few years has made it quite clear that President Trump lost an election in 2020 and has spent the months and years since then trying to overturn the results of that election in a variety of ways, including people marching to the Capitol and invading the Capitol.”Indeed, Blight has pointed out that the US Capitol was never breached during the civil war but was on January 6. Habig comments: “It’s difficult to argue with a straight face that these activities don’t qualify for section 3.”Still, there are plenty of Republicans, Democrats and neutrals who warn that the 14th amendment drive is politically counterproductive, fueling a Trumpian narrative that state institutions are out to stop him and that Joe Biden is the true threat to democracy. Let the people decide at the ballot box in November, they say.Habig counters: “It’s important to note that the American people did decide in 2020. We had a political process and then we had a president of the United States who attempted to overturn that political process. ”View image in fullscreenSpectacular as it was, the January 6 riot did not occur in a vacuum. Habig and her work at the PRP place it in a wider context of a growing movement to harass and threaten election officials and to interfere with the administration of elections. She perceives a direct line between Trump’s “big lie” and threats to democracy across the country today.“Regardless of this particular case, the threat isn’t over. It’s actually intensifying. We’re just seeing an array of efforts to rig the rules of the game against our democracy and it’s part of why we’re investing a lot of resources into protecting election officials this cycle, and to litigating and advancing voting rights and free and fair elections this year.”How did America get here? A turning point was the supreme court’s 5-4 decision in 2013 to strike down a formula at the heart of the Voting Rights Act, so that voters who are discriminated against now bear the burden of proving they are disenfranchised. Since then states have engaged in a barrage of gerrymandering – manipulating district boundaries so as to favor one party – and voter suppression.Habig reflects: “The gutting of the Voting Rights Act by the supreme court left states to themselves to rewrite the rules of the game in a variety of ways that disenfranchised voters and continued to rig maps against their systems and fair representation.skip past newsletter promotionafter newsletter promotion“We’ve seen the supreme court take itself out of the game of protecting other fundamental rights like abortion and throw that back into the states. What that’s creating is a lot of volatility at the state and local level as officials try to rewrite the rules or pick up the pieces and protect their constituents’ rights. What we’re trying to do is help state and local officials across the country use the power that they have to fight back and advance civil rights in all the ways that they can.”The PRP is building a rapid response hub to provide legal support for 200 election officials to combat harassment and intimidation and targeting election deniers. It is pursuing litigation against gerrymandering, the disqualification of legitimate ballots and state officials who try to prevent voters weighing in on ballot measures to advance abortion rights.“This is an all out effort to make sure that we don’t have death by a thousand cuts for our democracy this year,” Hebig says. “We are potentially less likely to see one central threat like we did on January 6 or even in the 2020 election. We’ve seen some of the larger counties like Maricopa county, Arizona, Philadelphia, Detroit et cetera, who have been targets in the past, have more resources to fight back.“What we’re most concerned about is the soft underbelly of our democracy, which is the smaller, less-resourced jurisdictions that just don’t have all of the capacity they need to push back against this harassment and intimidation. Because of our decentralised system, election deniers who are intent on disrupting our elections and disrupting the outcome of our election don’t have to mount a huge effort in one place.“They can pick apart jurisdiction by jurisdiction, invalidate 250 ballots here, and a thousand ballots there and 500 there, challenge absentee ballots, disrupt targeted polling places and that in the aggregate can actually change election results, sow disillusionment and distrust in our system and have the same or even worse aggregate outcome in terms of undermining the integrity of our election. That’s what we’re mobilising to prevent.”There was no greater measure of America’s ailing democracy than the 2022 decision to overturn Roe v Wade, the ruling that effectively made abortion legal nationwide, by supreme court justices appointed by presidents who lost the national popular vote. But since then, in a series of ballot measures in individual states, abortion rights have prevailed.Habig reflects: “Every single time that has been put to voters, abortion rights have won. As a result, we’re actually starting to see a lot of overlap between the reproductive rights fight and the democracy fight because this battle over abortion is fuelling additional efforts to break the rules and prevent voters from having a meaningful say in their rights. We’re mobilising on both fronts because the future of both is interconnected.”View image in fullscreenPRP says it has worked with local elected officials to provide legal guidance and filed dozens of amicus briefs in key reproductive rights cases, secured legal access to abortion for 6.5 million people. Habig explains: “We’re working with state and local officials to overturn criminal abortion bans at the state level.“We’re working to poke holes in existing criminal bans when there’s not a path to overturn them right away. Then we’re working to hold crisis pregnancy centers accountable for deception of women and patients; these are anti-abortion centers that masquerade as health clinics that provide comprehensive healthcare. We’re looking at this multi-pronged approach state by state and across the country.”Habig, a political strategist who was deputy campaign manager for Harris’s first Senate election campaign in 2016, has no doubt that democracy and abortion rights will play a big part in the November election.“I appreciate President Biden’s clarity on democracy and the constitution and his leadership on the issue. I do think it’s important for people to understand what democracy means and for their real lives. It can sound abstract sometimes and like an academic debate but bringing it down to the level of, do you have autonomy over your future and your community, do you have autonomy over your own body, is important for people.”She adds: “That’s why we’ve seen in cases when we’re talking about the fundamental right to vote, people get that. When we’re talking about their autonomy, they get it. When they’re talking about their dignity in the workplace, people get that and feel that on a visceral level. It’s important that we work to build a democracy that actually delivers so that people can feel the value of it in their daily lives.” More

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      in US Politics

      Texas’s ‘states’ rights’ argument in the border dispute sets a dangerous precedent

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      Over the past few weeks, a quiet legal crisis has been unfolding on the US-Mexico border. Texas has seized control of part of the border and claimed the right to prevent federal authorities from exercising jurisdiction there. After the US supreme court ruled that the federal government could tear down razor wire erected by Texas authorities, the state vowed to erect more – and Governor Greg Abbott claimed that because the federal government had failed to protect his state from an “invasion” of refugees, it has “broken the compact between the United States and the States” and lost the right to exercise authority over the border altogether.To understand why this is so alarming, you need to see it in two historical contexts. The first is the notion of a “compact” between the states. This idea holds that the constitution is not the supreme law of the land but rather a mere agreement between independently sovereign states. Those states hence retain the right to decide when certain actions by the federal government break the compact – and to reclaim their independence accordingly.This idea – sometimes known as “compact theory” – was key to the quasi-legal arguments deployed by the Confederate states in the 19th century to justify first secession, and then civil war. As well as being rejected by the framers of the constitution, it was also explicitly ruled incorrect by the supreme court once the civil war was over. Nowadays, there is really no such thing as “compact theory” outside of the imagination of neo-Confederates and other far-right groups – there’s just federal law, and actions that break that law.Secondly, the erroneous idea of the compact and the broader agenda of “states’ rights” of which it is a part have often been deployed in order to advance a white supremacist agenda. Slavery is the most notable example. But the southern states – including Texas – also invoked these ideas to defend the system of Jim Crow, which within living memory denied full rights to generations of African Americans. Only the civil rights movement forced a change.Another part of this tradition is the inversion of the realities of power and violence which lie at its heart. Slavery was justified in part by arguments that the slaves, if freed, would threaten and even exterminate the white race. Jim Crow was reinforced by the related idea that free Black people would, if not physically eradicate white people, destroy the white body politic by contaminating it with unfit citizens. In each case the reality of who was really a threat to whom – the slavedriver to the slave, the Klansman to the free Black citizen – was hidden by an elaborate ideology of fear which in reality was used to justify the continuation of white supremacy.By claiming the right to nullify federal authority in order to wield lethal force against non-white migrants, Abbott is placing himself squarely in the center of these two traditions. His actions have already contributed to the death of two children and a mother who drowned in the Rio Grande as Texas authorities prevented federal agents from coming to their aid. Refugees are among the most powerless people in the world, but to Abbott they are elements of an “invading” force which threatens the security of Texas and the United States. Like his predecessors, he believes that even the constitution shouldn’t stand in the way of his ability to harm them.But just because Abbott is invoking some of the most sordid chapters in American history to justify his actions doesn’t mean we should have confidence that he will fail.One of the most disturbing aspects of this whole affair is that despite Abbott’s arguments having no legal merit, four supreme court justices were willing to endorse Texas blocking federal authorities from removing the razor wire at the border. The fact that this case was so narrowly decided is a five-alarm fire that suggests we are only one new court decision or one new Republican supreme court appointment away from a radical restructuring of America’s constitutional order. Future historians may look back on the 2020s as a turning point as profound as the civil rights movement of the 1960s – and one in which the pendulum swung back the other way.What Texas is doing also dramatically raises the stakes of this year’s presidential election – and not just because the next president may be able to pick another supreme court justice. With so many Republicans endorsing the idea that the situation at the border can be characterized as an invasion, the road seems to be open for a Republican president to make a federal invasion declaration.This would not only pave the way for an even more militarized treatment of refugees, but also allow the federal government to suspend the rights of millions of Americans living in border areas if it deems such a step necessary to repel the supposed attack.Luckily, there are legal and institutional barriers to such a step – many constitutional scholars believe that a federal invasion declaration requires an act of Congress. But in this case as in others, all roads lead to the supreme court, and it has already signaled its openness to many extreme ideas. America is in a time of great constitutional danger, and the border may be both an early warning sign – and the place where the country ultimately comes unstuck.
      Andrew Gawthorpe is a historian of the United States at Leiden University. He writes a newsletter called America Explained More