US supreme court

Subterms

    More stories

    • 125 Shares189 Views

      in US Politics

      Trump files lawsuit to block release of Capitol attack records

      by

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

    • 313 Shares169 Views

      in US Politics

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

      by

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

    • 150 Shares199 Views

      in US Politics

      Supreme court, Facebook, Fed: three horsemen of democracy’s apocalypse | Robert Reich

      by

      OpinionUS supreme courtSupreme court, Facebook, Fed: three horsemen of democracy’s apocalypseRobert ReichThese unaccountable bodies hold increasing sway over US government. Their abuses of power affect us all Sun 10 Oct 2021 01.00 EDTLast modified on Sun 10 Oct 2021 05.22 EDTThe week’s news has been dominated by the supreme court, whose term began on Monday; the Federal Reserve, and whether it will start responding to inflation by raising interest rates; and Facebook, which a whistleblower claimed intentionally seeks to enrage and divide Americans in order to generate engagement and ad revenue.‘Facebook can’t keep its head in the sand’: five experts debate the company’s futureRead moreThe common thread is the growing influence of these three power centers over our lives, even as they become less accountable to us. As such, they present a fundamental challenge to democracy.Start with the supreme court. What’s the underlying issue?Don’t for a moment believe the supreme court bases its decisions on neutral, objective criteria. I’ve argued before it and seen up close that justices have particular and differing ideas about what’s good for the country. So it matters who they are and how they got there.A majority of the nine justices – all appointed for life – were put there by George W Bush and Donald Trump, presidents who lost the popular vote. Three were installed by Trump, a president who instigated a coup. Yet they are about to revolutionize American life in ways most Americans don’t want.This new court seems ready to overrule Roe v Wade, the 1973 ruling that anchored reproductive rights in the 14th amendment; declare a 108-year-old New York law against carrying firearms unconstitutional; and strip federal bodies such as the Environmental Protection Agency of the power to regulate private business. And much more.Only 40% of the public approves of the court’s performance, a new low. If the justices rule in ways anticipated, that number will drop further. If so, expect renewed efforts to expand the court and limit the terms of its members.What about the Fed?Behind the recent stories about whether the Fed should act to tame inflation is the reality that its power to set short-term interest rates and regulate the financial sector is virtually unchecked. And here too there are no neutral, objective criteria. Some believe the Fed’s priority should be fighting inflation. Others believe it should be full employment. So like the supreme court, it matters who runs it.Elizabeth Warren tells Fed chair he is ‘dangerous’ and opposes renominationRead morePresidents appoint Fed chairs for four-year terms but tend to stick with them longer for fear of rattling Wall Street, which wants stability and fat profits. (Alan Greenspan, a Reagan appointee, lasted almost 20 years, surviving two Bushes and Bill Clinton, who didn’t dare remove him).The term of Jerome Powell, the current Fed chair, who was appointed by Trump, is up in February. Biden will probably renominate him to appease the Street, although it’s not a sure thing. Powell has kept interest rates near zero, which is appropriate for an economy still suffering the ravages of the pandemic.But Powell has also allowed the Street to resume several old risky practices, prompting the Massachusetts Democratic senator Elizabeth Warren to tell him at a recent hearing that “renominating you means gambling that, for the next five years, a Republican majority at the Federal Reserve, with a Republican chair who has regularly voted to deregulate Wall Street, won’t drive this economy over a financial cliff again.”Finally, what’s behind the controversy over Facebook?Facebook and three other hi-tech behemoths (Amazon, Google and Apple) are taking on roles that once belonged to governments, from cybersecurity to exploring outer space, yet they too are unaccountable.Their decisions about which demagogues are allowed to communicate with the public and what lies they are allowed to spew have profound consequences for whether democracy or authoritarianism prevails. In January, Mark Zuckerberg apparently deferred to Nick Clegg, former British deputy prime minister, now vice-president of Facebook, on whether to allow Trump back on the platform.Worst of all, they’re sowing hate. As Frances Haugen, a former data scientist at Facebook, revealed this week, Facebook’s algorithm is designed to choose content that will make users angry, because anger generates the most engagement – and user engagement turns into ad dollars. The same is likely true of the algorithms used by Google, Amazon and Apple. Such anger has been ricocheting through our society, generating resentment and division.US supreme court convenes for pivotal term – with its credibility on the lineRead moreYet these firms have so much power that the government has no idea how to control them. How many times do you think Facebook executives testified before Congress in the last four years? Answer: 30. How many laws has Congress enacted to constrain Facebook during that time? Answer: zero.Nor are they accountable to the market. They now make the market. They’re not even accountable to themselves. Facebook’s oversight board has become a bad joke.These three power centers – the supreme court, the Fed and the biggest tech firms – have huge and increasing effects on our lives, yet they are less and less answerable to us.Beware. Democracy depends on accountability. Accountability provides checks on power. If abuses of power go unchallenged, those who wield it will only consolidate their power further. It’s a vicious cycle that erodes faith in democracy itself.
      Robert Reich, a former US secretary of labor, is professor of public policy at the University of California at Berkeley and the author of Saving Capitalism: For the Many, Not the Few and The Common Good. His new book, The System: Who Rigged It, How We Fix It, is out now. He is a Guardian US columnist. His newsletter is at robertreich.substack.com
      TopicsUS supreme courtOpinionUS constitution and civil libertiesLaw (US)FacebookSocial networkingFederal ReserveUS economycommentReuse this content More

    • 188 Shares159 Views

      in US Politics

      To protect the supreme court’s legitimacy, a conservative justice should step down | Lawrence Douglas

      by

      OpinionUS politicsTo protect the supreme court’s legitimacy, a conservative justice should step downLawrence DouglasIf presidents do not get to replace justices in an election year, then Coney Barrett’s confirmation is illegitimate; if presidents do, then Gorsuch’s is illegitimate. You can’t have it both ways Tue 21 Sep 2021 06.15 EDTLast modified on Tue 21 Sep 2021 06.19 EDTIn Planned Parenthood v Casey, a landmark decision from 1992, the US supreme court memorably noted that its “power lies … in its legitimacy”. If the people come to question the court’s legitimacy, they will cease to accept the “the Judiciary as fit to determine what the Nation’s law means and to declare what it demands”.It appears that Justices Clarence Thomas and Amy Coney Barrett share these worries. In separate remarks this month, both justices sought to assure the public that, in Coney Barrett’s words, “this court is not comprised of a bunch of partisan hacks”. Thomas said much the same, seeking to disabuse his listeners of the belief that justices “are just always going right to [their] personal preference”.Triggering the justices’ concerns was the withering criticism that has been directed at the court’s recent decision to leave in place, at least for now, a Texas law that turns ordinary citizens into de facto bounty hunters empowered to sue anyone who performs or “aids and abets” an abortion for a woman past her sixth week of pregnancy. The Texas law cannot be squared with the court’s ruling in Planned Parenthood, which recognized that a “woman’s right to terminate her pregnancy before viability … is a rule of law and a component of liberty we cannot renounce”. To renounce that principle, the court warned, would cause “profound and unnecessary damage to the Court’s legitimacy, and to the Nation’s commitment to the rule of law”. But that is precisely what the court did in letting Texas’s transparently unconstitutional law take legal effect.But far from recognizing or examining their own role in contributing to the erosion of the court’s legitimacy, the two justices turned to other precincts to assign blame. It’s the media, Thomas whined, that are “destroying our institutions” – this from a justice who dissented from the court’s refusal to hear Trump’s challenge to a Pennsylvania state court decision that extended the deadline for the receipt of mail-in ballots by three days. Thomas acknowledged that the volume of mail-ins at stake had no material bearing on the outcome of the Pennsylvania race; all the same, he was prepared – in a stunning display of either partisanship or tone-deafness – to have the supreme court, scant weeks after the 6 January insurrection, offer tacit support to Trump’s attack on the 2020 election results. And, in now blaming the media for the court’s self-inflicted wounds, Thomas is effectively echoing Trump’s toxic rhetoric about “fake news”. Who is the institution-destroyer here?Alas, Justice Coney Barrett joined Thomas in attacking the press. The media, she charged, makes decisions such as the Texas case “seem results-oriented”. It is worth noting that the justice made her remarks at the McConnell Center at the University of Louisville, with Senator Mitch McConnell, the center’s namesake, in attendance. It was McConnell, of course, who in the wake of Ruth Bader Ginsburg’s death six weeks before the 2020 election, pushed through Coney Barrett’s nomination, in transparent violation of the very justification he had offered four years earlier to deny President Obama the right to name a justice to fill a court vacancy that ultimately went to Neil Gorsuch. That McConnell’s cynical manipulation of the rules was designed to compose a court that would produce dependably conservative results appears lost on Coney Barrett. Indeed, it was her vote that was determinative in the Texas case. Had Ginsburg still been on the court, the decision would have gone 5-4 the other way. McConnell secured the results he wanted.If Coney Barrett were genuinely concerned with promoting the court’s legitimacy, she might consider resigning. Or rather, she and Gorsuch might agree to flip a coin to decide who should leave the court. If presidents do not get to replace justices in an election year, then Coney Barrett’s confirmation is illegitimate; and if presidents do get to replace, then Gorsuch’s confirmation must be illegitimate. You can’t have it both ways – not if you believe that the composition of the court should be the product of a principled process.Coney Barrett appears to willfully overlook the fact that she has been elevated to a rarefied position through a tarnished process that will taint all decisions in which her vote plays a crucial role. And just as we might hope that a person who, through no fault of their own, has come into possession of a good not rightfully theirs, would return that object, Coney Barrett and Gorsuch could do the right thing for the nation by agreeing that one of them should step down.Clearly, this isn’t going to happen. Yet it would powerfully bolster the legitimacy of a court the very composition of which smacks of illegitimacy.
      Lawrence Douglas is the author, most recently, of Will He Go? Trump and the Looming Election Meltdown in 2020. He is a contributing opinion writer for the Guardian US and teaches at Amherst College
      TopicsUS politicsOpinionUS supreme courtLaw (US)Amy Coney BarrettClarence ThomascommentReuse this content More