What Corruption of the Judicial System Looks Like

 

Judge Aileen Cannon

You may not have been following the legal arguments behind Trump's delaying tactic of seeking a special master in the purloined documents case, so you may have missed -- how could you? -- that Trump found himself a judge that he had appointed and who someone thought would be "loyal" to him.

Yes, apparently legal loyalty to "them what brought ya" is a thing. Bending the known law to appease an ego, and shielding a criminal from justice, whilst using as your implicit legal theory this proposition -- that this ex-president is above the law. Explicitly, Cannon ruled that Trump's position as a former president meant the seizure of those Mar-a-Lago documents carried a stigma "in a league of its own" and that any future indictment "would result in reputational harm."

Reputational harm. 

You couldn't come up with a more compleat Trump judge if you hired multiple script writers and the best casting directors.

Judge Cannon, 41, is a graduate of Duke and the University of Michigan law school and a member of the Federalist Society. Trump named her a Federal judge in 2020, and McConnell's enthusiastic confirmation process had her in judge's robes by that November. She's a total novice, but she's clearly Trump's novice, and loyal to His reputation Awesomeness.

About the new legal territory that Judge Cannon seems intent on prospecting, and its obvious illegitimacy, Lawrence Tribe said, "She could either redeem herself by starting to act like a real federal judge unaffected by the identity of the president who appointed her, or earn the condemnation of national security experts and legal mavens by botching the biggest case most judges ever touch in a lifetime and endangering the lives of our spies abroad." (The super top secret stuff they found at Mar-a-Lago is what he's talking about -- "our spies abroad.")

Last night, in 33 tweets, Georgetown Law professor Heidi Feldman examined the facts and the Trump legal theory (if you want to call it something as coherent as "theory") and wrote the most interesting and informative analysis of the Cannon decision. Her conclusion, in tweet # 33: "We are horrified that a Trump-appointed judge repeatedly went out of her way to give Trump unprecedented and extraordinary protection from ongoing criminal investigation."

What's Wrong With Judge Cannon

Heidi Feldman's explanation in 33 tweets:

I think it is hard for nonlawyers to understand just how distressing Judge Cannon’s rulings and arguments are. I’m going to set aside more technical aspects and try to explain accessibly. 1/

The key point to remember is that Donald Trump is under criminal investigation for breaking federal criminal laws. He’s not been indicted yet and may never be. Right now federal law enforcement is gathering evidence. 2/

As the subject of a criminal investigation, Trump has no more and no less Constitutional protection than any other ordinary person in America. 3/

All have rights not to be subject to unreasonable searches of their residences and seizures of property from them, per the 4th Amendment of the U.S. Constitution. When the DOJ (prosecutors) and FBI (police) decided to search Mar-A-Lago, they had to get to a search warrant. 4/

DOJ gave the magistrate judge evidence of their reasonable grounds for searching Mar-a-Lago for evidence of crimes committed by Trump. They had to name the possible crimes and explain specifically what they thought they would find that would show Trump committed them. 5/

The FBI did the search and got boxes of evidence relevant to the question of whether Trump had illegally taken possession of and otherwise mishandled government government documents. Basically, the relevant evidence is, of course, the documents in the boxes. 6/

If the documents are government records Trump retaining them is illegal; if the records are classified in various ways Trump taking them and storing them improperly is illegal in other, additional ways. 7/

To bring Trump to trial, DOJ would have to convince a grand jury the government has reasonable grounds to charge him with specific crimes. So, DOJ would want to show a grand jury documents that are government records, including classified records, taken from Mar-a-Lago. 8/

Trump, like any subject of a criminal investigation, wants to discourage the prosecutor, DOJ, from going before a grand jury and to make it hard for prosecutor to convince grand jury to vote to charge him with crimes. This averts a criminal trial. 9/

Since seized documents are the possible evidence DOJ would present to grand jury, Trump wants to prevent DOJ from even examining them to ascertain if they are government records. He wants to argue that DOJ cannot look at them. So he’s arguing they are “privileged.” 10/

Privileged means shielded from examination and use by the DoJ as part of building a case against Trump. If documents seized from Mar-a-lago are privileged, DOJ can’t use them. 11/

If enough documents are privileged, DOJ might not feel confident going to a grand jury or it might not have strong evidence that Trump had illegally taken/kept/stored government records, including classified ones. 12/

Different types of privilege protect different documents. For example, if some of the documents seized from Mar-a-lago memorialize legal advice Trump received from his personal attorneys, it is likely protected by “attorney-client privilege.” 13/

Attorney-client privilege exists to promote open communication between people and their lawyers, to ensure that people, especially those potentially likely to charged with crimes, get good legal representation. 14/

Another possible privilege, another possible way to shield documents from examination/use by DOJ in criminal investigation is “executive privilege.” Unlike attorney-client privilege, this one doesn’t cover too many people. 15/

Executive privilege pertains to the President, the head of the executive branch. It allows the President to withhold information from courts and Congress when releasing it would jeopardize the public interest. 16/

Executive privilege asserted in good faith makes sense: sometimes government records held by the president contain information that should be private to the president, not available to other branches of government, bc revealing the info would hurt the country. 17/

But, a president might not have the public interest in mind when she asserts executive privilege. She might want to keep records private bc they contain embarrassing info; or info that would show she committed crimes. 18/

While a president is in office, DOJ policy has been not to charge him with crime in any event, because that would be distracting and could be dangerous for the country. 19/

But now Trump is out of office, and so, just like all of us, potentially chargeable. This makes asserting executive privilege especially attractive to him. 20/

If a former president can assert executive privilege however he has a tool almost no other ordinary American has to shield himself from grand jury review, indictment, trial. Executive privilege could render him de facto above the law. 21/

Part of keeping presidents legally accountable, then, is not making it too easy for them to shield evidence of criminal wrongdoing from DOJ. 22/

In today’s decision, Judge Cannon permitted Trump to use assertion of executive privilege to at least delay DOJ examination of documents seized from Mar-a-Lago. 23/

Cannon ruled that DOJ cannot look at the documents until a special master, an appointed judicial advisor, examines them and decides which, if any, are covered by executive privilege. 24/

There are all sorts of problems with this. First, how is a special magistrate supposed to decide what information is executively privileged? Obviously, can’t just rely on Trump’s assertions. Cannon gives no clues. 25/

Law governing presidential records says former president claiming executive privilege over records from her term should work with current president to ascertain if public interest requires keeping the records from courts and Congress. Ultimately, call is current president’s. 26/

Seemingly, current president via National Archives has already decided that public interest does not require that Mar-a-lago documents be kept under wraps. So, why is Cannon letting a special magistrate second-guess? 27/

Moreover, many legal experts, in and out of government, question whether a former president can ever be the one to assert executive privilege, on ground that only the current head of executive branch can. 28/

Trump is asserting executive privilege when he is out of office, subject of criminal investigation and his premises searched under warrant upon showing of reasonable grounds to believe evidence of crimes were there. Not a compelling situation to recognize the privilege. 29/

Instead Judge Cannon assumed Trump can assert the privilege and appointed a special master to decide which seized documents it covers, if any. She had many other options, including simply declining to decide the case. (I’m not explaining technicalities of jurisdiction here.) 30/

If DOJ pursued case to grand jury or trial, Trump could have raised executive privilege and exclusion of documents at those junctures. Instead Cannon has given his questionable assertion bite at a very early stage in a criminal investigation. 31/

Whether Cannon’s decision delays DOJ review of documents for long is an open question. It isn’t clear that the decision and its arguments will survive appeal, if DOJ chooses to appeal. But these uncertainties don’t affect the horror many lawyers have in reaction to decision. 32/

We are horrified that a Trump-appointed judge repeatedly went out of her way to give Trump unprecedented and extraordinary protection from ongoing criminal investigation. 33/33

The SBOE Won't Sue the Rules Commission

 

Circosta

Because of unspecified problems caused by partisan poll observers during the May primary in North Carolina, the state Board of Elections unanimously passed new, clarified rules about what is allowed in the polling enclosure and what is regarded as intimidation, obstruction, or disruption. The 100% Republican Rules Commission overturned those clarifications under the influence of an election-denying MAGA lawyer named Cleta Mitchell. I hoped at the time that the SBOE would sue to reinstate their new rules.

The SBOE decided not to sue (as explained in the statement SBOE Chair Damon Circosta issued, below). But Circosta wants everyone to know that there are still laws on the books prohibiting obnoxious partisanship in the polling place and that those laws will be enforced in November.

Statement about Safe and Orderly Voting Environment in the 2022 General Election

Raleigh, NC
Sep 2, 2022

The following is a statement from State Board Chair Damon Circosta on maintaining an orderly and safe voting environment for the 2022 general election:

The bipartisan members of the State Board of Elections are united in seeking to ensure that voting is conducted in an orderly fashion this fall, and that no voters experience intimidation. That is why we unanimously approved changes to our rules governing voting places: to head off the types of disruptive behaviors by some poll observers that we unfortunately saw in the May primary, and to provide clear guidance to poll workers on behaviors that are not permitted at the polls.

Last week, the Rules Review Commission disagreed with this State’s elections agency on whether these rule changes were necessary to maintain the integrity of the voting process. The Rules Review Commission lacks the expertise and the authority to determine how to best maintain order at the polls. However, we do not have the luxury of time to go back and forth with the Commission or the courts to ensure that our reasonable rules are put in place before voting begins. We, as elections officials, must focus our attention on preparing for the upcoming election.

To that end, we at the State Board will do everything we can to ensure that the county boards of elections and county poll workers understand their authority and procedures to maintain an orderly and safe voting environment for all voters. It is our duty to the voting public to protect their right to vote, and it will be protected.

Bo Hines Repents His Anti-Abortion Statements

 

Nothing says rising tide of blue like watching professional conservatives suddenly losing their shit over they past statements about abortion. I quote at length here about Bo Hines (he of checkered past) -- because it's so damn juicy -- from the newsletter "Indy Daily" by Jane Porter, editor of IndyWeek, delivered as an email last Thursday morning:

Good morning, readers.

Here’s a funny thing: Bo Hines, the 27-year-old second coming of Madison Cawthorn who doesn’t like to be compared to Madison Cawthorn, has scrubbed his entire campaign website of any mention of his "pro life" values—but they featured heavily in his primary campaign for the Republican nomination for the 13th Congressional district. 

So that’s weird, right?!

Scroll down to the first photo in this newsletter for receipts. There used to be a whole page linked to Bo Hines’s position on "Life and Family" on his website that has now mysteriously disappeared. Web archives indicate that when you clicked the vanished link, a page would have popped up with the following statement:

"I am pro-life. I believe that life begins at conception and that we must protect the rights of the unborn. I also believe in traditional marriage. We must fight to protect our core family values that are rooted in biblical principles."

But you can’t find any references to Bo Hines being pro-life on his website anymore. Could it be that since the U.S. Supreme Court’s Dobbs decision came down in June, North Carolinians, including those in Bo Hines’s tossup district, have vociferously and via survey indicated their support for abortion access and reproductive rights?

Some polling certainly indicates that that’s the case: here’s Blueprint from earlier this month. Here’s a joint survey from WRAL and SurveyUSA from June. 

Let’s not forget that before his primary—in which Bo Hines ran against and defeated DeVan Barbour IV, Kelly Daughtry, Renee Ellmers, Kent Keirsey, and three other candidates—he told the News & Observer that he would support legislation banning all abortions with no exceptions. Funnily enough, Bo Hines has been mum on the issue ever since. 

Here’s another funny thing: there’s a video on Bo Hines’s website touting his endorsement from the legally embattled former president, one Donald J. Trump. 

But a Public Policy Polling survey from last week indicates that, of 506 residents polled, 56 percent of people in North Carolina’s 13th Congressional district have an unfavorable opinion of the former president while only 35 percent of survey respondents have a favorable opinion of Trump. 

How long before that video disappears from the website as well? The PPP survey shows Bo Hines running neck and neck with Democratic state Senator Wiley Nickel, both with 40 percent support from respondents and 20 percent undecided. So, go ahead—do the math, and place your bets now. DJT and a hardline anti-abortion stance likely won't play well in the new 13th district. 

Have a great Thursday! Thanks for reading.

—Jane

Questions To the Watauga School Board Candidates -- Asked and Answered

 

Michael Ackerman,
former candidate for Congress

On or about August 18, Jay Fenwick and the other candidates for the Watauga County Board of Education received a letter from Michael Ackerman with nine questions. He requested -- more like demanded really -- answers to those nine questions by a date certain (today, I think) and said he would publish all the answers in a letter to the editor to the local press.

Ackerman is a persistant activist for flipping education in Watauga Couty. He's a regular at public comment time in front of the school board. He was really stirred up about the mask mandate. He's perhaps most infamous for the "scare tactics" he pulled on the school board back in February. He took the podium and said: "With great sadness and resolve I do stand before you tonight and inform you that you have left us with no other option but to serve each of you with letters of intent to file claims against your surety bonds.”

It was all nonsense, of course. Which Jay Fenwick exposed here.

When Ackerman ran against Virginia Foxx in the Republican primary in May, he hosted frequent Facebook Live events and often referred to the Watauga School Board as his number one cause in politics. Why he was running against Foxx was never very clear.

Jay Fenwick answered Ackerman's nine questions, and they, along with the original questions, are reproduced verbatim below, preceded by the intercepted cover letter that Fenwick sent to Ackerman:

Mr. Ackerman,

I thank you for the opportunity to address these questions for you and others that may be interested. However, I have concerns about your plans for publication. You vaguely ask for answers to be short and concise in anticipation of publication restrictions. Yet most of these questions are quite politically charged which necessitates a fuller explanation. I think information for the electorate should be more expansive, not less. The electorate needs more depth of understanding to make these important decisions.

Respectfully, Jay Fenwick.

 -------------------------------------------------

Ackerman Q1) Based on what you now know, do you believe a forced mask mandate was the right decision for our students?

Fenwick

I stand by my decisions on requiring masks during the COVID outbreak for the safety of our students, our employees, the families of our students and employees, and the community at large. My decisions were based on the advice and recommendations of our national, state, and local health professionals. I am grateful that we did not have any school closures during the two full years of COVID. We did not have any outbreak clusters in schools during the very contagious times when masks were being worn. We did not have any student or staff members die due to COVID, and had only a very few cases that might be considered severe. Many school districts that made decisions different than ours unfortunately did suffer through some of these painful consequences.

Ackerman Q2) Would you support a forced mask mandate for our students in the future?  If yes, briefly describe under what circumstances.

As in the past, I would be guided primarily by the advice and recommendations of the appropriate medical professionals. I continue to believe that mask wearing is an effective layer of protection against transmission of sickness. If another new, highly contagious virus were to present itself, or another virulent strain of an existing virus, then I could foresee needing this layer of protection again. 

Ackerman Q3) We have seen a growing number of educators in this country feeling it necessary to discuss intimate details of their personal lives with their students.  Is this something you support, or would you rather see educators maintain a strictly professional relationship with their students?

All of us are of course aware that personal interaction cannot cross the line into inappropriate intimacy. WCS has clear policies on staff-student relations and the professionalism expected. Principals and directors review these policies with staff each year. However, a professional relationship can also be a personal one; these are not mutually exclusive. I think it has always been a strength of WCS that our teachers care so deeply about their students. They attend student sporting events, artistic performances, etc. They laugh, cry, and celebrate with their students. I think most of our teachers would say that they love their students like their own children.

Ackerman Q4) Do you support the teaching of any kind of sexuality (hetero, homo, bi,or trans) to students preK-6th grade?

None of these words appear in any state curriculum standard or related curriculum documents such as planning guides. We expect our teachers to follow the state's curriculum standards and I believe that they do because they are education professionals.

Ackerman Q5) Do you support teaching sexuality outside of the realm of biological health education for grades 7-8?

I do not see any reason for teaching sexuality outside of the Healthful Living curriculum. I am not aware of any curriculum standards outside of Healthful Living that cover topics related to sexuality.

Ackerman Q6) The American Federation of Teachers has created a "card" to help educators keep secrets from the parents of their students regarding gender identity.  Is this something you support?  https://www.foxnews.com/media/aft-promotes-method-teachers-help-kids-change-pronouns-without-parents-knowing

I am not aware of any use of a "card" such as this in our schools. But to answer your question I did some research into this, and believe the question misrepresents the facts involved. This "card" is more fully identified as a "student information card." It was not created to help teachers keep secrets from parents. It was created as a resource for teachers' professional consideration as they begin a new school year. High quality teaching and learning requires a relationship of trust. To learn effectively, students must feel safe to make mistakes. Building this relationship of trust takes time, and it begins on day 1. Like it or not, students may tell their friends or teachers things that they have not yet shared with their families. Teachers and counselors are professionals and know how to help students think about challenging personal issues and guiding them to involve and inform their families themselves. And obviously serious matters would be brought to the parents attention immediately. 

Ackerman Q7) There has been discussion at the federal level to tie certain federal funds for public schools to CRT/Gender Identity curriculum.  Would you accept those funds for the district with those stipulations, or would you refuse those funds?

This question also misrepresents the facts. The federal Department of Education (DOE) does not dictate or mandate curriculum, and in fact is barred by statute from doing so. What you are likely referring to is an event in the spring of 2021 when the DOE proposed, for public comment, two priorities for history and civics education. Identifying these as priorities would later enable grant programs to support those areas. In the proposal, there were a couple of works provided as examples that have come under scrutiny including "The 1619 Project." These works were not mandated and the priorities themselves were not any type of mandate or curriculum. Regarding strings attached to funding, we are always open to consideration of funding options outside of the normal state and local allocation processes. But we do scrutinize those opportunities and have refused some offered funds due to potential questions of appropriateness. 

Ackerman Q8) Would you support and implement live streaming of all school board meetings so that parents who cannot attend can at least observe the meetings?

I am open to conversation on this issue. 

Ackerman Q9) Would you support and implement some sort of vehicle to allow parents more participation in school board meetings, or create some sort of public forums on a regular basis where parents could ask the board specific questions and get answers?

This past year the board has listened to many people during the public comment portion of its monthly meeting. Being responsive to some of those requests, we moved the public comment forward in the agenda and highlighted specific topics as separate agenda items. Our current meeting rules allow 3 minutes for speakers, but this has not quite been enough time for many speakers. I would support increasing the speaker's time to provide a greater opportunity for them to convey their full thoughts. And, I would support a small panel of board members and administrators to visit schools for informal listening sessions between the regular board meetings. As we face controversial topics we need to hear from as wide a cross-section of people as we can, and the monthly Monday meeting at the board office may be inconvenient for many.

-- 

Jay Fenwick
Member, Watauga Board of Education