Democracy Lives to See Another Day in Supreme Court Ruling
Plus: Audio Tape is Another Nail in Trump’s Coffin
Coming out of the 2020 election, Trump-leaning lawyers claimed that state legislatures should have sole control over redistricting and other election matters.
It was a whack-a-doodle legal theory known as Independent State Legislature (ISL), dating back more than a century when it was used as part of arguments made in resolving a dispute between Congress and the Michigan state legislature over who had the power to decide when the Electoral College met in Michigan.
ISL came back to life in 2000 in Bush v. Gore, a decision halting ballot counting in Florida giving Republicans the presidency. My eyes glazed over trying to read the Court’s decision in that case but it mainly came down to who’s the boss in elections.
Two decades and a couple of years later ISL was proffered as part of claims the last presidential election was stolen by crafty Democrats. By changing the rules of the game to allow legislatures to appoint Electoral College electors, the Trumpanista legal corps hoped to get then-Vice President Mike Pence to accept electors not inclined to honor actual popular votes.
There’s more to the story about how this was supposed to transpire, but suffice it to say the White House didn’t have confidence Pence was willing to go along with the scheme and wanted to have Iowa Senator Chuck Grassley replace the Vice President on the floor.
Despite the chaos in the capitol building generated by January 6th insurrectionists, Pence refused to leave the scene, meaning that the electoral votes were matched up with the popular vote in each state.
In Moore v Harper, a case brought on by the gerrymandering of election districts in North Carolina, reactionaries were hoping a compliant Supreme Court would look past language in the 14th Amendment.
It didn’t work out and, with a 6-3 vote, the court dashed the right’s desires.
Here’s Justice Roberts, writing for the majority:
“When state legislatures prescribe the rules concerning federal elections, they remain subject to the ordinary exercise of state judicial review,” he wrote. “State courts retain the authority to apply state constitutional restraints when legislatures act under the power conferred upon them by the elections clause.”
Future post-election chaos like that unleashed by the former president in seeking to overturn the results of the 2020 election was lessened by this ruling.
Had all the power been granted to state legislatures, similar gambits in 2024 would have a much higher chance of success for Trump or others who reflexively respond to losses with lies about election fraud.
ISL theory put into practice could have unraveled all instances where states implemented election policies for federal elections not approved by the state legislature. Voter-approved ballot initiatives for policies like mail balloting, same-day registration, etc. would require legislative affirmation.
The really big deal in ISL as a reality would have concerned gerrymandering. There would be no check on states like Mississippi cramming all Black voters into one congressional district. (Which the state did recently and got whooped in court.)
In short, a decision upholding the aims of the Trumpanistas, would have made the job of destroying the constitutional system much easier.
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Speaking of Trump, CNN’s release of the audio tape of the former president showing off classified documents is going to make the job of his defense attorneys much harder. The tape amounts to a confession.
The recorded conversation, done as part the research for a book project, began with Trump proclaiming that U.S. military leadership, and particularly former chairman of the Joint Chiefs Mark Milley, are “bad, sick people.” The former president had been accused in media accounts as planning a war with Iran.
Trump: “Well with Milley, let me see that. I’ll show you an example. He said that I want to attack Iran. Isn’t it amazing, I have a big pile of papers, this thing just came up. Look. This was him.”
Trump: “This was him. He presented me this. This is off the record, but they presented me this. This was him. This was the Defense Department and him. We looked at some–this wasn’t done by me. This was him.”
Trump: “Also it’s pages long. Look. Wait a minute, let’s see here. It’s it amazing? This totally wins my case, you know. Except it is like highly controversial, secret …”
Trump: “This is secret information. Look at this! The attack …”
Trump: “This was done by the military and given to me. Uh, I think we can probably print?”
Staffer: “Well, we’ll have to see, yeah. We’ll have to try to–”
Trump: “Declassify it.”
Staffer: “Yeah.”
Trump: “See, as president I could have declassified it, now I can’t, you know, but this is classified.”
Staffer: “We have a problem.”
Trump: “Isn’t that interesting? It’s so cool. And look, we heard I have a–and you probably didn’t believe me, but now you believe me.”
The former president’s response to release of the audio was part legal mumbo-jumbo, part implied threats to the prosecutor’s “family & friends,” and part what about-ism.
It was hard to find anybody defending Trump's audio confession.
Elliot Williams, CNN Legal correspondent: “As evidence in court, a transcript doesn't carry any more weight than an audio recording would. But whoo boy, hearing a defendant's voice is different than just reading the same words.”
Ryan Goodman, Co-editor-in-chief @just_security, NYU Professor: Listen for yourself. Key evidence for the prosecution in the trial of Donald J Trump. The defendant in his own words — essentially narrating his crime.
Pete Strzok, Former FBI agent: “See as President I could have declassified it. Now I can’t, you know, but this is still a secret…It’s so cool…Hey, bring some, uh, bring some Cokes in please.” Trump treating national security like some 3rd grade show-and-tell. Listen for yourself.
If you want to hear the tape, here’s CNN reporting on it. https://www.cnn.com/2023/06/26/politics/trump-classified-documents-audio/index.html?
I kept looking for somebody spinning this story in Trump’s defense, and then I stumbled upon Sean Hannity:
“That does not confirm for me whether or not specifically this document was declassified or not,” Hannity told Fox News viewers Monday night. “Was that actually the real document, or was it a story he was telling?”
I do remember how we all thought the Access Hollywood tape was going to be Trump’s undoing… and then nothing happened. Hopefully prosecutor/special counsel Jack Smith can do a better job.
Nuggets of News for Your Noggin’
Moms for Liberty chapter that posted Hitler quote purposefully disrupts Holocaust moment of silence Via Daily Kos. GOP Presidential candidates and Trojan Horse Robert F Kennedy Jr are sucking up to this group.
The Hamilton County chapter of Moms for Liberty is the one that published a newsletter prominently featuring a quote from Adolf Hitler. There was an extreme backlash, and they later apologized. Yet during a board meeting attended by that same chapter, a man proposed that the group atone by observing a moment of silence for the Holocaust victims.
As soon as that was initiated, the Moms for Liberty members started intentionally and loudly hacking and coughing to disrupt.
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'Planned in plain sight': Senate report finds intel agencies failed in the lead-up to Jan. 6 Via NBC News.
The report, written by the committee's chair, Sen. Gary Peters, D-Mich., and staff, provides specific examples of threats of violence and plans for an attack on the Capitol that were collected by agencies in the lead-up to Jan. 6, including the FBI and the Department of Homeland Security's Office of Intelligence and Analysis (I&A). The report concludes that the agencies consistently downplayed the potential for violence and, as a result, the government did not prepare the proper security apparatus for Washington that day.
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No, climate activists are not coming for NYC pizza Via HEATED (Substack) A fine example of stoking fear of straw men circulated in right wing media, featuring quotes from anonymous pizzeria owners..
These quotes were all quickly picked up and republished by traditional and right-wing media, who blasted the “climate rule” that targets “carbon emissions.” Among the pick-ups: Fox News, The Daily Beast, The Daily Wire, The Daily Caller, The Daily Mail, The Blaze, National Review, and Washington Examiner. Elon Musk also complained on Twitter that the “utter BS” rules “won’t make a difference to climate change,” sparking even more breathless coverage.
The story was all perfect fodder for the political right, whose most effective tactic to delay climate policy thus far has been to turn climate change into a culture war, and to accuse climate activists of trying to “take away” the things they love.
There was just one problem: the story, like so many others, is a lie.
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