“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.”
“Those who know Pence best say he is wrestling with how to recalibrate himself to a Republican base that hasn’t yet forgiven him for refusing Trump’s pressure to overturn the election results — and maybe never will. When you’ve buried your true self for four years in service to someone who happens to be the most divisive and unpopular former president since Richard Nixon, it’s not so easy to excavate yourself again. Pence, who describes himself as a “conservative, but not in a bad mood about it,” likes to be liked. “He would love to be reconciled to the president,” a confidant told me. “My sense is he’s seen that window close.” But neither is Pence willing to take the other path, reject the base who held his life in such low regard, and full-throatedly present himself as the man who saved democracy. “He’s not,” the confidant told me, “going to go Liz Cheney.””
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“In July of 2016, Trump picked Pence to be his running mate and automatically resurrected Pence’s political career. Pence repaid his benefactor with four years of nearly unswerving loyalty. When Trump put his water bottle down in a FEMA meeting briefing on the 2018 hurricane season, so did Pence. Pence took to describing the president in physically glowing terms, referring regularly to his “broad shoulders.” In one Cabinet meeting, he praised Trump once every 12 seconds for three minutes straight. “I had always been loyal to President Donald Trump,” the prologue of his book begins. “He was my president, and he was my friend.”
“When he became vice president, he knew that he had to subordinate his views,” Jim Atterholt, Pence’s former gubernatorial chief of staff who would later set up Pence’s legal defense fund during the Russia investigation, told me. “That doesn’t mean he didn’t have private conversations with the president where he shared concerns, but in public, he always subordinated his views. People saw that as being obsequious. But really, he was just being Mike Pence, which is a loyal vice president.”
From afar, Boehner, who himself thought he knew the bounds of Pence’s loyalty, having been the object of it when they served in the House together, marveled. “You know, there’s loyalty and then there’s, frankly, blind loyalty, which is what he exhibited as vice president because he had hundreds of opportunities to say, ‘We’re not really quite in the same place,’ or even raise an eyebrow for God’s sake.”
Boehner watched Pence stand by Trump through a number of imbroglios: Pence didn’t turn on Trump amid the “Access Hollywood” scandal, declining to usurp him on the ticket. In his book, he almost congratulated Trump for how he handled the fallout, writing that during the presidential debate with Hillary Clinton, Trump “squared his shoulders” and “apologized to the American people.” He stood by Trump when the president said there were “good people on both sides” at the violent white supremacist rally in Charlottesville. He defended the administration’s response to Covid, writing an op-ed in the Wall Street Journal headlined “There Isn’t a Coronavirus ‘Second Wave.’” (Pence writes in his book that editors “placed a somewhat misleading headline on the essay.”) And he defended Trump’s decision to clear Lafayette Square of protesters, writing that he “watched as the media went wild, suggesting that the U.S. Park Police had tear-gassed protesters.”
Was Boehner disappointed in his old charge? I asked. “No, because I know the role of vice president. And when you’re the No. 2 guy, you salute the No. 1 guy.”
Still, Boehner added: “I sat back and watched this, going back to October of 2016,” — when the infamous “Access Hollywood” tape dropped — “and I’m thinking to myself, ‘My God, when is Pence going to say something because he can’t be this loyal.’ He was. And he was loyal every single day to Trump. I marveled through all of this, although looking back, I should’ve known he would be. And then he was directly loyal to the Constitution on Jan. 6.””
“This is not a new argument, and numerous courts have rejected similar challenges to publicly funded family planning programs, in part because the Deanda plaintiff’s legal argument “would undermine the minor’s right to privacy” which the Supreme Court has long held to include a right to contraception.
But Kacsmaryk isn’t like most other judges. In his brief time on the bench — Trump appointed Kacsmaryk in 2019 — he has shown an extraordinary willingness to interpret the law creatively to benefit right-wing causes.
This behavior is enabled, moreover, by the procedural rules that frequently enable federal plaintiffs in Texas to choose which judge will hear their case — 95 percent of civil cases filed in Amarillo, Texas’s federal courthouse are automatically assigned to Kacsmaryk. So litigants who want their case to be decided by a judge with a history as a Christian right activist, with a demonstrated penchant for interpreting the law flexibly to benefit his ideological allies, can all but ensure that outcome by bringing their lawsuit in Amarillo.”
“So if the Republican Party finally rejects Trump, is that also a rejection of the authoritarian and illiberal impulses his political career has amplified? I’m open to being pleasantly surprised, but so far, the evidence answers with a resounding “no.” Even if Trump loses this primary race, there’s every reason to think his party will retain its present will to power.
At The Bulwark this week, Jonathan V. Last documented a telling contrast between Republicans’ rationales for rejecting Trump now and their original objections to his candidacy in 2015 and 2016. Back then, GOP critiques of Trump were grounded in language about policy and governing principles or personal character, or both. Now the repudiation is openly transactional: Trump loses, and Republicans don’t want to lose.”