It’s being called a “surprise decision,” a “landmark win,” and a “a major victory for the Voting Rights Act (VRA),” but some legal experts are warning that heralding the U.S. Supreme Court’s Thursday decision as anything except upholding the status quo is a mistake, and other experts suggest it means the Court’s earlier rulings wrongly threw control of the House of Representatives to Republicans. Some experts say a Democratic-majority House in 2024 is now more likely.

In short, in its 5-4 decision in Allen v. Milligan, the Supreme Court ruled that the state of Alabama discriminated against Black voters, which make up a quarter of its population, by drawing congressional maps to exclude them.

Slate’s Mark Joseph Stern, who writes about law and the courts, exclaimed, “WHOA!” as he explained: “The Supreme Court’s final decision of the day is a 5–4 ruling that AFFIRMS the Voting Rights Act’s protection against racial vote dilution! Roberts and Kavanaugh join the liberals. This is a HUGE surprise and a major voting rights victory.”

Democracy Docket, the website founded by Marc Elias, the voting rights attorney who won 63 of the 64 court cases Donald Trump and his allies filed to contest the 2020 presidential election, also served up a similar response on social media, calling it “a massive victory for voting rights.”

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On its website, Democracy Docket calls it “an overwhelming win for Alabamians, specifically Black voters, whose voting power was found to be diluted under the current congressional map. Importantly, the conservative Supreme Court did not make the drastic decision to strike down Section 2 of the VRA, leaving an important tool in voting rights litigation in place.”

It adds the Supreme Court’s decision in Allen v. Milligan “leaves Section 2 of the Voting Rights Act (VRA) intact and, in a landmark win for voters, struck down the state’s congressional map. The majority opinion, written by Chief Justice John Roberts, is joined by Justices Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson and joined in part by Justice Brett Kavanaugh.”

Democracy Docket also notes the decision “will have major positive implications for outstanding redistricting lawsuits.”

Stern agrees, writing: “It’s a boon to Democrats’ chances of retaking the House in 2024. The Supreme Court had blocked multiple lower court rulings striking down congressional maps that diluted Black voting power. At least some of those rulings should now be implemented.”

Democracy Docket adds: “The Court’s decision in Allen likely means that litigation challenging Louisiana’s congressional map can move forward and paves the way for a favorable outcome for Louisiana voters. Louisiana’s situation directly mirrors Alabama’s. In both states, voting rights advocates argued that a second majority-Black congressional district is needed to ensure compliance with the VRA. The Supreme Court paused Louisiana’s litigation pending a decision in Allen.”

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Dave Wasserman, U.S. House editor of the nonpartisan Cook Political Report calls the decision “a major surprise,” and says: “This could reverberate to LA, SC and/or GA, forcing creation of 2-4 new Black majority districts and netting Dems 2-4 seats” in the House.

Wasserman, known for his keen knowledge of congressional districts and iconic “I’ve seen enough” early and accurate predictions of House election races, offered this view of how the Court’s decision could impact current districts:

“The Alabama Republicans in most jeopardy owing to the SCOTUS ruling: Reps. Jerry Carl (R) #AL01, Barry Moore (R) #AL02 and Mike Rogers (R) #AL03. Moore could be squeezed the most in any map reconfigured to feature a second Black majority seat.”

University of Texas law professor Steve Vladeck, author of a book on the Supreme Court, “The Shadow Docket,” offers up a stinging reminder of how the Court has damaged voting rights and helped Republicans in the process:

“If you assume that additional majority-minority districts in Alabama, Georgia, Louisiana, & 1–2 other states would’ve been safe Democratic seats, then today’s #SCOTUS ruling strongly suggests that the Court’s 2022 shadow docket stays [decisions/rulings] wrongly gave Republicans control of the House.”

Professor of law Anthony Michael Kreis, pointing to Vladeck’s remarks, adds: “there’s a House majority built on discriminatory lawlessness.”

Also taking note of Thursday’s SCOTUS ruling: House Democrats. Axios’ Andrew Solender reports House Democratic Minority Leader Hakeem Jeffries’ office is “inviting Dem[ocratic] congressional staff to a Friday briefing on recent Supreme Court cases, including the Alabama congressional map case.”

Meanwhile, the well-known NYU professor of law, Melissa Murray, is stepping in to properly frame reactions to what she sees as the Court’s “weak sauce” decision on the Voting Rights Act.

“Some initial thoughts on Allen v. Milligan,” she writes on Twitter. “Media is trumpeting this as a ‘victory’ for the Voting Rights Act. And it is. And I don’t want to be a turd in the punchbowl… but this is pretty weak sauce from this Court.”

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Professor Murray says, “this doesn’t ‘strengthen’ the VRA. It preserves the status quo. And the status quo is that this Court has done an A+ job of hobbling the VRA over the last 10 years.”

Murray offers up some quick historical background.

“In 2013’s Shelby County v. Holder, it eviscerated the preclearance formula. The preclearance regime required states with a history of voting discrimination to first ‘preclear’ any changes to their voting rules and regs with the DOJ or a three-judge federal court panel.”

“The Court invalidated the preclearance formula on the ground that progress had been made and minorities were voting and blah blah blah,” she notes. “This progress narrative prompted RBG [the late Justice Ruth Bader Ginsburg]  to note in dissent that throwing out the preclearance formula was like throwing out your umbrella in a rainstorm because you weren’t getting wet. She was right.”

Murray also refers to a number of other cases along the way that weakened voting rights.

“So, yes,” she concludes, “today’s decision is a victory that maintains the status quo for Section 2 of the VRA. But it is cold comfort when one considers the way this Court through its decisions has actively distorted the electoral landscape and made true representative government more elusive.”

The Economist’s Supreme Court reporter Steven Mazie, calls Prof. Murray’s remarks, “Crucial zoomed-out context for today’s Voting Rights Act ruling. The 5-4 is a surprise, and it’s a victory—but after a long string of losses, today’s win amounts to…not losing YET MORE voting protections for people of color.”

The Nation’s justice correspondent, Elie Mystal, offers a bit of a more compact and down-to-earth response: “A way to understand what just happened with Roberts and Kav[anaugh] in the Voting Rights Case is that it’s not going to change much in terms of Alabama’s racist maps. This cost them little,” he says. “The *victory* is that these fools could have straight killed Section 2 of the VRA, but didn’t.”

Barb McQuade, the former U.S. Attorney and current professor of law, is taking now-former Special Counsel John Durham to the woodshed for his 306-page report publicly released Monday, the final work product of his failed four-year, multi-million dollar probe into the Dept. of Justice’s decision to investigate Russia’s efforts to attack the 2016 presidential election, and any involvement Donald Trump and his campaign may have had with that enemy foreign power.

Unlike then-Attorney General Bill Barr‘s fraudulent letter allegedly previewing the 2019 Mueller Report, a letter that so grossly mischaracterized that Special Counsel’s findings one federal judge called it “distorted” and “misleading,” Attorney General Merrick Garland offered neither introduction nor pushback, allowing Durham’s report to stand or fall on its own.

And fall it has.

In addition to initial condemnation from legal and political experts, journalists and professors who decimated Durham’s claims when the report became public Monday afternoon (and allegedly first leaked to a far-right wing news outlet), McQuade Tuesday explained in detail some of the duplicitous decision, errors, and omissions Durham made in what from the start was, as The Washington Post’s Philip Bump has said, “an effort to undermine the Russia investigation.”

In short, the Durham report was designed to be an investigation to prove Donald Trump’s false claims there was a “Russia hoax” and the FBI’s investigation was a “witch hunt.”

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In her 20-point Twitter thread, McQuade notes, “the Durham Report provides fuel for the false claim that the Russia probe was a hoax. Don’t fall for it. While Mueller found no conspiracy, he concluded that Russia worked to help Trump become president.”

“And rather than report Russia’s overtures to FBI, Trump’s campaign was willing to accept the help,” says McQuade, who is also a popular MSNBC legal analyst and the author of the upcoming book, “Attack from Within: How Disinformation is Sabotaging America.”

“Like Barr,” she says, “Durham says Mueller found no conspiracy between Trump and Russia but fails to mention the 2016 Trump Tower meeting to receive dirt on Clinton, sharing of polling data with Russian intel officer Konstantin Kilimnik, and coordinating of messaging with Wikileaks.”

“Durham also ignores Trump’s public statement, ‘Russia, if you’re listening …’ asking them to find Clinton’s missing emails, and the subsequent release of hacked emails hours after the release of the Access Hollywood tape,” she adds.

McQuade actually begins her dissection of Durham’s report with this: “After four years, review of 1 million documents, 490 interviews, his conclusion is that FBI should have opened a preliminary investigation (PI) instead of a full investigation (FI) in 2016.”

Fortunately, McQuade was a U.S. Attorney for seven years, and understands these nuances.

“The only difference between FI and PI is the duration and the authorities that may be used. This is a hairsplitting quibble, and one on which FBI officials routinely disagree,” she explains.

“Durham also minimizes the reasons FBI was alarmed enough to open a FI in 2016 based on information received from Australian diplomats about Trump campaign adviser George Papadopoulos,” she says.

“According to Aussies, Papadopoulos said, ‘Trump team had received some kind of suggestion from Russia that it could assist this process with the anonymous release of information during the campaign that would be damaging to Mrs Clinton.'”

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And apparently unlike Durham, McQuade puts events into context.

“Papadopoulos’s statement came right after the DNC hack. FBI was properly concerned about Russia’s efforts to influence the presidential election. This was an investigation into RUSSIA,” she declares.

More context from McQuade:

“Trump had other concerning ties to Russians: real estate deals, Miss Universe Pageant, loans from Russian lenders, Trump Tower Moscow project. Campaign Chairman Paul Manafort had lobbied for pro-Russian oligarchs.”

“Trump campaign members also had ties to Russia. Mike Flynn was paid $45,000 by Russia Today in 2015 for a speech he gave at a banquet where he sat next to Putin. He later lied to FBI about his calls with the Russian ambassador about sanctions during the transition.”

“Carter Page had been seen meeting with Russian intel officers. It now appears that he was unaware that they were trying to recruit him. Papadopoulos worked to set up a meeting with Putin.”

Others are expressing frustration with the Durham report, including Rachel Cohen, the communications director for U.S. Senator Mark Warner (D-VA). Warner was the Vice Chairman (and is now Chairman) of the Senate Intelligence Committee when it “spent 3.5 years reviewing millions of documents and interviewing hundreds of witnesses and concluded the FBI had ample cause for concern in 2016. SSCI [U.S. Senate Select Committee on Intelligence] was led by Republicans at the time,” she notes.

Exasperated, she asks, “so we’re just doomed to do this again and again forever until we all die, am i getting that right?”

Pointing to this report, Cohen also rightly points out that the Dept. of Justice Inspector General “also investigated this and found no evidence of political bias in the launch of the initial FBI investigation into the 2016 Trump campaign.”

Meanwhile, McQuade returns to the infamous Steele Dossier, which, despite what many on the right have claimed, the Dossier was not fully debunked or disproved.

“Durham criticizes the FBI for relying on the Steele Dossier for the Carter Page FISA. Steele Dossier was not the basis for opening the investigation, but it makes for a useful scapegoat to blur that fact.”

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It also makes good propaganda.

U.S. Rep. Dan Goldman (D-NY), a former Assistant U.S. Attorney SDNY under Preet Bharara, Tuesday weighed in on the Steele Dossier aspect of Durham’s report.

“The Steele Dossier was irrelevant to the origination of the Russia investigation and irrelevant to the Mueller Report,” he tweeted. “Yet Durham spent the majority of his ‘report’ on it. Having failed as a prosecutor, Durham morphed into a bad politician in a prosecutor’s clothes.”

But again, the Steele Dossier, while not the basis for opening the investigation into Russia and Trump, did have useful information.

McQuade observes, “some aspects of Steele Dossier were confirmed by Mueller and DNI: Putin favored Trump and was working to influence the election in Trump’s favor and against Clinton. It also contained unconfirmed information that could have seriously compromised Trump as president.”

“Failing to investigate these ties would have been a breach of duty by FBI,” she concludes. “This was an investigation into RUSSIA. Russia was the threat and the focus. Trump was just Russia’s useful idiot.”

The four-year Trump-era probe examining why the FBI launched an investigation into Donald Trump, his 2016 campaign, and Russia’s efforts to attack the presidential election to help the GOP nominee win concluded Monday with the publication of a 306-page report that “appeared to show little substantial new information,” as The New York Times reports.

Former U.S. Attorney John Durham, once considered a well-regarded prosecutor, was assigned to lead the investigation by then-Attorney General Bill Barr four years ago, almost to the day. In October of 2020, Barr secretly altered Durham’s assignment, appointing him as a Special Counsel just weeks before the presidential election, ensuring the investigation would continue regardless of which party won the White House.

Legal and public policy experts, journalists, and political commentators are mocking Durham and his investigation, with several pointing out that Durham’s conclusions do not match the legal record, including sworn testimony.

“Special counsel John Durham concluded that the FBI should never have launched a full investigation into connections between Donald Trump’s campaign and Russia during the 2016 election, according to a report compiled over three years by the Trump-administration appointee and released on Monday,” CNN reported, pointing to only the time Durham served as a Special Counsel.

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But experts say – and prove – the report obscures the actual facts.

MSNBC’s Nicolle Wallace, while reporting the breaking news of the release of Durham’s final report, interrupted herself to do some “fact-checking in real time.”

“Today’s report, NBC News notes, ‘accuses the FBI of acting negligently by opening the investigation based on big and insufficient information in a sweeping 300-page report made public Monday. This is likely to loom larger in politics than in law. I’m going to pause right here,” Wallace told viewers. “I’m going to keep reading you NBC’s reporting but I’m going to try to do some real-time fact-checking. Now that finding by Mr. Durham is contradicted by DOJ’s own IG, Mr. Horowitz, in 2019, who found that the investigation was opened was predicated, it was necessary, and that there was no bias.”

“Now, NBC News goes on to report that Durham finds that the FBI made a series of mistakes, including what I just talked about, the decision to open the Trump-Russia probe not being justified. Now the end of Donald Trump and Bill Barr’s term, their quest to investigate the Justice Department is where we begin today with these clashing narratives right the Durham report which contradicts another inspector general report already in the public sphere and on the record.”

Nicolle Wallace fact-checks the Durham report in real-time, “Now that finding by Mr. Durham is contradicted by DOJ’s own I.G. Mr. Horowitz in 2019 who found that investigation was opened, was predicated, it was necessary and then there was no bias.” pic.twitter.com/KDjDNrudWp

— Sarah Reese Jones (@PoliticusSarah) May 15, 2023

In fact, attorney and former FBI special agent Asha Rangappa observed, “I’ll be interested to see how Durham argues that there was no predication in the Russia probe when the DOJ’s OIG [Office of the Inspector General] found the opposite AND a Republican-led Senate Intel Committee found that Trump’s campaign manager was, in fact, in frequent contact with a Russian intel officer,” she wrote. “As many have noted, even before Durham’s report was released Monday, that FBI investigation Durham claimed had no basis of being opened, resulted in dozens of criminal prosecutions.

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Former federal prosecutor Renato Mariotti also takes Durham to task. He writes, former Special Counsel Robert Mueller “rightfully resisted using the term ‘collusion,’ which has no legal meaning in this context, instead focusing on conspiracy law. Durham’s report comes out and says there is “no actual evidence of collusion,” a media soundbite, not a legal conclusion. What a contrast,” he notes.

“The Trump-Russia investigation produced 37 indictments and several other outside criminal referrals. People were convicted at trial. People pleaded guilty. Hostile foreign government actors faced legal and diplomatic sanctions,” notes Media Matter’s Craig Harrington. “All of this was real!”

Indeed, in December of 2019, Vox reported, “Special counsel Robert Mueller’s team indicted or got guilty pleas from 34 people and three companies during their lengthy investigation.”

“That group is composed of six former Trump advisers, 26 Russian nationals, three Russian companies, one California man, and one London-based lawyer. Seven of these people (including five of the six former Trump advisers) have pleaded guilty.”

That’s quite an accomplishment for an investigation John Durham claims should never have even been opened.

There’s  more.

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Saying, “Point me to the confirmation bias here?” former FBI Counterintelligence Deputy Assistant Director Pete Strzok, who led the Bureau’s investigation into Russian interference in the 2016 United States elections, points out:

Paul Manafort – guilty
Rick Gates – guilty
Mike Flynn – guilty
George Papadopouolos – guilty
Roger Stone – guilty
Michael Cohen – guilty
Konstantin Kilimnik – wanted, $250k reward

Michael Sussman – not guilty
Igor Danchenko – not guilty

(above are direct quotes from Strzok)

Sussman and Danchenko were Durham’s, and they were found not guilty. The rest were the FBI’s.

Pulitzer Prize-winning foreign investigative correspondent Greg Miller of The Washington Post: “Durham’s report faults FBI for rushing to investigate candidate who urged Russia to hack opponent, was backed by Russian interference op, welcomed Russian offer of ‘dirt’, secretly pursued Moscow real estate deal, shared classified into w/Russian diplos…”

Others also slammed Durham.

“Durham’s mandate was to ‘investigate whether any… person or entity violated the law in connection with the intelligence, counter-intelligence, or law-enforcement activities directed at the 2016 presidential campaigns.’ Failing, he wrote a 300-page take,” says Media Matters’ Matthew Gertz, adding: “Basically he took Hannity monologues and converted them into two failed prosecutions, a guilty plea for someone who got probation, and a lengthy report that provides fodder for more Hannity segments. Circle of garbage.”

Investigative journalist Marcy Wheeler, who specializes in national security and civil rights, says, “Durham took well over twice as long as Mueller and found, literally, bupkis.”

The Atlantic’s Tom Nichols, a retired U.S. Naval War College professor and Russia expert, called Durham’s four-year probe a “wild goose chase.”