“As the White House gears up for the end of one Trump-era border policy this spring, it has its sights set on resurrecting a version of another much-maligned immigration program put in place under the previous administration.
The Departments of Homeland Security and Justice on Tuesday announced a proposed rule that will bar some migrants from applying for asylum in the U.S. if they cross the border illegally or fail to first apply for safe harbor in another country. The rule was previewed by President Joe Biden in January. Following a 30-day public comment period, it will be implemented upon the May 11 end of the Covid public health emergency, according to a senior administration official who briefed reporters.
May 11 is also the end date of the Title 42 public health order currently being used to bar entry to most migrants at the southern border. The rule announced on Tuesday would stay in place for two years following its effective date.”
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“Administration officials also used Tuesday’s announcement to criticize Congress, arguing that the White House has been left to roll out new policies to fill the “void” left by inaction on the Hill.
“To be clear, this was not our first preference or even our second. From day one, President Biden has urged Congress to pass comprehensive immigration reform and border security measures to ensure orderly, safe and humane processing of migrants at our border,” a senior administration official said.”
“In 2019, a few weeks after the release of special counsel Robert Mueller’s report on Russian interference in the 2016 election, the Trump administration flipped the script and began investigating the investigators.
Attorney General Bill Barr appointed US Attorney John Durham to investigate those government officials who had presumed to look into Donald Trump’s ties to Russia.
The FBI’s Trump-Russia probe, Barr argued publicly, was born of chasing thin conspiracy theories and relied on phony evidence, and its investigators were either blinded by political bias or acting with blatant political motives.
And then Durham and Barr proceeded to do all those same things.
A new, detailed exposé by the New York Times’s Charlie Savage, Adam Goldman, and Katie Benner digs into what exactly happened with the nearly four-year Durham investigation, which is purportedly about to conclude, and it isn’t pretty. Anecdote after anecdote portrays Durham and Barr as believing in conspiracy theories without evidence but with clear political motives to bolster one of Trump’s favorite arguments: that he was the victim of a nefarious plot.
Basically, Durham and Barr wanted to prove that the Trump-Russia investigation was manufactured in bad faith by either “deep state” officials or the Clinton campaign (or both), with the goal of hurting Trump politically. Again and again, Durham pursued various versions of this theory, and again and again, he fell short of proving his case.
If Barr and Durham started off with suspicions but found upon investigation that they were baseless, that’s not necessarily so terrible. Yet both men kept on saying or implying publicly that the “‘deep state’/Clinton campaign hit job” theory was true — Barr in public statements where he said this outright and Durham in court filings and trial questioning that seemed designed to advance a narrative he couldn’t actually prove.
Bizarrely enough, when checking out one of these theories — that Italian officials were somehow involved in launching the Trump-Russia investigation — Durham and Barr were instead presented with evidence linking Trump himself to potential financial crimes. “Mr. Barr and Mr. Durham decided that the tip was too serious and credible to ignore,” the Times reporters write. Barr kept this new investigation of Trump in Durham’s hands, and it’s unclear what became of it.
The Trump-Russia investigation certainly shouldn’t be exempt from criticism, and a fair-minded review of whether investigators made misjudgments would be reasonable. But the Durham probe was not that. Instead, it repeatedly assumed dastardly plots against Trump, even when the evidence kept failing to establish those plots, while Barr seeded a narrative to conservative media and President Trump himself that Durham was closing in on Trump’s “deep state” enemies. The politicized, blinkered investigation they were looking for was inside them all along.”
“a senior Defense Department official said that Chinese spy balloons entered American airspace three times during Trump’s tenure and once before during the current administration.”
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“the difference between past instances and the one from last week, Defense Department officials said, is that those balloons never stayed above U.S. territory for a significant period of time. When pressed for specifics, such as the date, location and duration of those instances, Biden administration officials refused to provide them to POLITICO, citing the classified nature of that information.”
“The report provides evidence the committee collected to assert that Trump knew throughout his campaign to remain in power that he’d lost, that he knew the conspiracy theories he publicly advanced about election fraud were false, that he pressured officials to back his bid to challenge the results despite being told he could be breaking the law, that he lied in federal court, and that he spurred on the insurrectionists even after he’d been told they were armed, some heavily. The violence and death of January 6, the report argues, was the culmination of that failed effort.
The nearly 850 page report was compiled following more than 1,000 interviews with figures with firsthand knowledge about the attack on the Capitol and the events that led up to it”
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“Trump wanted to go to the Capitol after his speech at the Ellipse, is said to have had a physical altercation with a Secret Service agent, and broke things at the White House when his aides wouldn’t let him join the insurrectionists”
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“Witnesses claimed Trump said Vice President Mike Pence “deserves” the threats of hanging he received while at the Capitol to certify the election”
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“Far-right Reps. Scott Perry (R-PA), Andy Biggs (R-AZ), Mo Brooks (R-AL), Matt Gaetz (R-FL), Louie Gohmert (R-TX), and Marjorie Taylor Greene (R-GA) all were said to have asked Trump for pardons for their roles in the January 6 riot; many have denied doing so”
“In addition to the “small number” of classified documents in President Joe Biden’s former think tank office, it turns out, he had a “small number” in the garage of his house in Wilmington, Delaware, plus one more in a room adjacent to the garage.* These were Obama administration records that Biden came across during his time as vice president, and they were definitely not supposed to be in those locations. What had initially seemed like a single lapse now looks like a pattern of carelessness, which creates several problems for Biden and the Justice Department.
First, Biden is no longer in a position to criticize Donald Trump’s “totally irresponsible” handling of sensitive material that he retained when he left office. Second, the delay in acknowledging Biden’s retention of classified records and obfuscation of its scope look like blatant attempts to minimize the political fallout. Third, a criminal prosecution of Trump for his handling of the government documents he took to Mar-a-Lago, which was always an iffy proposition, now seems doomed for political as well as legal reasons.
That is not to say there are no meaningful differences between what Trump did and what Biden did. Based on what we know so far, Trump’s stash, which included 325 classified documents along with thousands of unclassified government records, was much larger than Biden’s. And unlike Biden, Trump persistently resisted returning the documents, apparently because he considered them his personal property. That resistance included months of wrangling with the National Archives and Records Administration and incomplete compliance with a federal subpoena, which culminated in the FBI’s August 8 search of Mar-a-Lago.
Then again, Biden kept classified records in unapproved locations for six years, while Trump managed to do that for about a year and a half. Biden said he was “surprised” to learn last fall about the documents in his former office. Biden “takes classified information and materials seriously,” said Richard Sauber, the “special counsel to the president” who is overseeing the White House’s response to the case of the misplaced secrets. “We are confident that a thorough review will show that these documents were inadvertently misplaced, and the president and his lawyers acted promptly upon discovery of this mistake.””
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“there is considerably more evidence to support an inference of criminal intent in Trump’s case. That applies to all three potential charges that the FBI mentioned in its Mar-a-Lago search warrant affidavit: removing or concealing government documents, retaining “national defense information,” and obstructing a federal investigation.
But all three charges include mens rea elements that will be hard to satisfy even in Trump’s case. Based on what we know so far, it is plausible that Trump’s conduct can be explained by a combination of ignorance, arrogance, stubbornness, laziness, and carelessness rather than criminal intent.
Even if Smith turns up more evidence that Trump “willfully” mishandled documents or deliberately obstructed the FBI’s investigation, prosecuting him while giving Biden a pass is bound to be perceived as unfair, inconsistent, and politically motivated. Trump’s supporters surely would see it that way, and so would many Americans who have no particular allegiance to him and might even be inclined to vote for Biden in 2024.
To avoid the firestorm that such a decision would ignite, Garland could let Smith and Hur lay out their findings, make a show of carefully weighing them, and then decide there is not enough evidence in either case to prove criminal charges beyond a reasonable doubt. That might even turn out to be true.”
“Trent Taylor says his cell, in a Texas psychiatric unit operated by the state’s prison system, was covered in human excrement. Feces smeared the window and streaked the ceiling. Someone had painted a shit swastika on the wall, alongside a smiley face. According to Taylor’s allegations in a federal lawsuit, there was such a thick layer of dried human dung on the floor of the cell that it made a crunching sound as he walked naked across the cell.
Taylor alleged that he was kept in this cell for four days, where he neither ate nor drank due to fears that the excrement, which was even packed inside the cell’s water faucet, would contaminate anything he consumed. Then, on the fifth day, he was moved to a bare, frigid cell with no toilet, water fountain, or bed. A clogged drain filled the new cell with choking ammonia films. With nowhere to relieve himself, Taylor held his urine for 24 hours before he could do so no longer. And then he had to sleep alone on the floor while covered in his own waste.
The Supreme Court eventually ruled 7–1 that Taylor’s lawsuit against the corrections officers who forced him to live in these conditions could move forward, and that lawsuit settled last February. But the Supreme Court had to intervene after an even more conservative court, the United States Court of Appeals for the Fifth Circuit, attempted to shut down these claims against the prison guards.
A unanimous panel of three Fifth Circuit judges held that it was unclear whether the Constitution prevents prisoners from being forced to remain in “extremely dirty cells for only six days” — although, in what counts as an act of mercy in the Fifth Circuit, the panel did concede that “prisoners couldn’t be housed in cells teeming with human waste for months on end.”
This decision, in Taylor v. Stevens, is hardly aberrant behavior by the Fifth Circuit, which oversees federal litigation arising out of Texas, Louisiana, and Mississippi. The Fifth Circuit’s Taylor decision stands out for its casual cruelty, but its disregard for law, precedent, logic, and basic human decency is ordinary behavior in this court.
Dominated by partisans and ideologues — a dozen of the court’s 17 active judgeships are held by Republican appointees, half of whom are Trump judges — the Fifth Circuit is where law goes to die. And, because the Fifth Circuit oversees federal litigation arising out of Texas, whose federal trial courts have become a pipeline for far-right legal decisions, the Fifth Circuit’s judges frequently create havoc with national consequences.
The Fifth Circuit has, in recent months, declared an entire federal agency unconstitutional and stripped another of its authority to enforce federal laws protecting investors from fraud. It permitted Texas Republicans to effectively seize control of content moderation at social media sites like Twitter, Facebook, and YouTube. Less than a year ago, the Fifth Circuit forced the Navy to deploy sailors who defied an order to take the Covid vaccine, despite the Navy’s warning that a sick service member could sideline an entire vessel or force the military to conduct a dangerous mission to extract a Navy SEAL with Covid.
As Justice Brett Kavanaugh wrote when the Supreme Court restored the military’s command over its own personnel, the Fifth Circuit’s approach wrongly inserted the courts “into the Navy’s chain of command, overriding military commanders’ professional military judgments.”
And this is just a small sample of the decisions the Fifth Circuit has handed down in 2022.”
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“while the Fifth Circuit is so extreme that its decisions are often reversed even by the Supreme Court’s current, very conservative majority, its devil-may-care approach to the law can throw much of the government into chaos, and even destabilize our relations with foreign nations, before a higher authority steps in. Worse, the Fifth Circuit’s antics could very well be a harbinger for what the entire federal judiciary will become if Republicans get to replace more justices.”
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“the Supreme Court only hears a tiny percentage of the cases decided by federal appeals courts, and it almost never hears cases brought by extraordinarily vulnerable litigants like Trent Taylor. Indeed, it hears these cases so infrequently that, when the Court decided to intervene on Taylor’s behalf, Justice Samuel Alito wrote a brief opinion complaining that Taylor’s case “which turns entirely on an interpretation of the record in one particular case, is a quintessential example of the kind that we almost never review.”
The Fifth Circuit hears a steady diet of ordinary immigration cases, which will often decide whether an individual immigrant can remain with their family in the United States or whether they must be deported to a nation they may barely know, or where they may fear for their physical safety. These cases are now heard by judges like Andrew Oldham, Trump’s sixth appointment to the Fifth Circuit, who spent much of his time both on and off the bench seeking to make federal immigration policies harsher to immigrants.
Similarly, the court hears a steady diet of employment discrimination cases.”
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“there are reforms that Congress or the Supreme Court could implement, which would diminish both the Fifth Circuit’s power and the power of litigants to channel political lawsuits to highly ideological judges. Congress, for example, may strip the Fifth Circuit of its jurisdiction over certain cases, or require certain suits to be filed in a federal court that is not located in the Fifth Circuit. It could also add seats to the court, which would then be filled by President Biden.
A less radical reform, proposed by former Fifth Circuit Judge Gregg Costa, would prevent litigants like the Texas AG’s office from handpicking judges who are likely to rule in their favor — and whose decisions are equally likely to be affirmed by the Fifth Circuit. Costa proposed having all lawsuits seeking a nationwide injunction against a federal law or policy be heard by three-judge panels, rather than a single judge chosen by the plaintiff. These panels’ decisions would then appeal directly to the Supreme Court, bypassing the Fifth Circuit (although a single Fifth Circuit judge might sit on some of these panels).
Realistically, however, systemic reforms to the problem of judge-shopping — and to the problem of a lawless court of appeals — are unlikely to happen anytime soon. The House of Representatives will soon be controlled by Republicans, who are unlikely to support legislation that reduces the power of their partisan allies on the bench. And the Supreme Court has six justices appointed by Republican presidents.
And so the Fifth Circuit will continue to hand down its decrees, confident that no one with the power to stop them is likely to do so.”
“The IRS didn’t audit the personal tax returns filed by former President Donald Trump during his first two years in office, despite an agency program that mandates scrutiny of every president’s tax information, a House committee said”
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“the agency did not initiate an audit of any of the returns that Trump filed while in office until April 3, 2019. That was the same day that committee Chair Richard Neal (D-Mass.) first asked IRS Commissioner Chuck Rettig to provide Neal six years of Trump’s tax returns and any audits of those returns.
Only one such examination — that of the former president’s 2016 return — was flagged as a mandatory president audit. And three personal tax returns that Trump filed while in office for tax years 2017, 2018 and 2019 weren’t selected for scrutiny until after he left the White House.
The report reveals glaring problems for a program that is supposed to assure Americans that the president is abiding by the law, Joe Thorndike, a longtime tax historian, said.”
“Trump frequently made tens of millions of dollars annually during that period. But he was able to whittle away his tax bill by claiming steep business losses that offset that income.
In 2016, he paid $750. The following year he again paid just $750. In 2020, he paid nothing.”
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“In other years, Trump paid more. In 2018, he had far fewer losses to report and ended up paying $999,466.”