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OPINION

Johnson Would Contest 2024 Election Results Under the Same ‘Circumstances’

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Speaker of the House Mike Johnson says he has a “duty” and “responsibility” to contest the results of the presidential election if there is a question about the process complying with the U.S. Constitution and vowed to do so again this year as he did in 2020, if the same “circumstances were presented.” The U.S. Supreme Court refused to take up the 2020 case with Johnson’s claims, and his argument was dismissed by a constitutional expert as being on “the far-right fringes of American legal thought.”

Johnson joined an increasing number of top GOP lawmakers this past week who were asked if they will accept the results of the 2024 election, especially if the presumptive Republican nominee, Donald Trump, loses. Up until the 2020 election amid Donald Trump’s interference, the United States had enjoyed the regular, peaceful transfer of power for more than 200 years.

Before being elevated to Speaker, Johnson was a little known Louisiana Republican back-bencher who happened to be the “congressional architect of the effort to overturn the 2020 election, advocating an interpretation of the Constitution so outlandish that not even the Supreme Court’s conservative supermajority could swallow it,” according to Michael Waldman, a constitutional attorney and president of the Brennan Center for Justice at NYU School of Law.

That effort came in the form of an amicus brief to the U.S. Supreme Court, signed by 126 Republican members of the House of Representatives, including Johnson.

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“Johnson was the legal mastermind behind the doomed push to decertify the election results in Georgia, Michigan, Pennsylvania, and Wisconsin,” Waldman wrote in October of 2023 after Johnson became Speaker of the House. “He pressured colleagues to sign on to his effort, warning them ominously that Trump would be ‘anxiously awaiting the final list to review.'”

In a lengthy interview with Politico published Friday, Johnson was asked if he had any “regrets” about his efforts to overturn the 2020 presidential election that Joe Biden won.

“No, I don’t,” Johnson told Politico. “My point in the amicus brief — people often ask me about this and they never read the brief — was a very simple and very profoundly important legal question. And that is, was the plain language of the Constitution violated in the days that led up to the 2020 election? And it very clearly was, because the language of the Constitution says plainly the state legislatures are the bodies in each of the states that determine the process by which electors are chosen. In a presidential election year, it’s a critically important thing.”

The U.S. Supreme Court, Waldman notes, refused to hear the case. He wrote that Johnson’s legal argument is “an obscure idea on the far-right fringes of American legal thought. Many of you now know the name — the ‘independent state legislature theory.’ Johnson argued that state legislators are the sole state-level decision-makers in federal elections, and that no one else can exercise any form of discretion, oversight, or agency to administer an election. It’s a baseless, ahistorical, dangerous, and completely bonkers reading of the Constitution.”

Johnson claims that only state legislatures have control over the specifics of elections management. But in most states the Secretary of State is – by law – responsible for the elections and how they are managed.

Johnson doubled down in his claims, suggested that the Supreme Court shirked its responsibility, and even suggested they did so because the real answer was too “profound” and “unsettling” for the nation to grapple with.

“Now remember my background as a constitutional law attorney,” declared Johnson, who frequently likes to remind reporters of his work before becoming a congressman. “For 20 years, I litigated constitutional questions in the courts. And to me, this was just such a plain and very important question to be answered. The only mechanism we had to present that to the highest court in the land, the Supreme Court, was to attach it along to that Texas case that was going to be before the court. That’s why the amicus brief was filed there. The Supreme Court dodged the question. Perhaps they calculated that the answer was so profound, it would be so unsettling, and it was not worth them addressing, but well.”

The Speaker made clear he would do the “exact” same thing again.

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“And so you asked me if I regret that? I don’t. I would do the exact same thing today if the circumstances were presented, because I feel like I have a duty. I’m an officer of the Congress and I have a responsibility. We take an oath to uphold the Constitution, and if it’s plainly on its face not being followed, I have an obligation as an officer of this body to present that to the judicial branch.”

Waldman went on to write, “Johnson’s election denial isn’t mere ‘one could argue’ lawyerly guff. Johnson has ties to a movement that incorporates election denial into evangelical Christianity. Members of the movement held prayer sessions in which they asked for divine intervention to reverse the 2020 result.”

“Mild-mannered Mike Johnson is a no-holds-barred, hold-on-to-power-at-all-costs election denier,” Waldman concluded. “How could this matter in 2024? It seems clear the election deniers won’t wait until the actual election this time. Their bid to subvert the results will start well before ballots are cast and counted. Johnson may preside over key proceedings.”

Indeed, as Newsweek reported Friday, former Trump “fixer,” attorney Michael Cohen, is warning of a Republican “plot” to “steal the election.”

“Their plot to steal the election if they don’t win has already been set in motion,” Cohen warned on his podcast. “Open your eyes. It’s already being set in motion.”

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OPINION

Chief Justice ‘Shaken’ by Public Reaction to Him Handing Trump Near-Total Immunity

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October 8, 2024

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Last year, when Donald Trump’s attorneys declared he had “total immunity” from prosecution, many in the legal community scoffed. No president in all of American history had ever proclaimed they could not be convicted for serious violations of law—most infamously, President Richard Nixon had to have been keenly aware he might be criminally prosecuted.

Just eleven days after Nixon resigned the presidency in 1974, TIME reported, “Nixon’s new status as a private citizen puts him in grave peril.”

In fact, TIME continued, “the Watergate grand jury had vigorously wanted to indict Nixon while he was President.”

The American public is aware presidents can be prosecuted for certain crimes, and there is a foundational expectation of that possibility. In February of 2021, after the Democratic House impeached Donald Trump, Senate Republican Minority Leader Mitch McConnell declared the ex-president should face criminal prosecution rather than impeachment.

“Donald Trump’s legal troubles are far from over, despite his acquittal in the U.S. Senate impeachment trial that ended on Saturday,” Reuters reported on February 16, 2021. “Minority Leader Mitch McConnell noted this just moments after voting to acquit Trump, saying the courts are the proper forum for holding the former president accountable for his role in the deadly Jan. 6 attack on the U.S. Capitol by Trump supporters.”

READ MORE: ‘They Are Partners’: Experts Warn on Trump and Putin After Bombshell Woodward Revelations

We now know that after Special Counsel Jack Smith asked the U.S. Supreme Court to settle the claim of “presidential immunity” by Trump’s attorneys, it refused, waiting for a lower court to weigh in. Chief Justice John Roberts sent a “scathing critique of [that] lower-court decision and a startling preview of how the high court would later rule,” The New York Times reported last month.

“Behind the scenes, the chief justice molded three momentous Jan. 6 and election cases that helped determine the former president’s fate,” according to The Times’ reporting.

“’I think it likely that we will view the separation of powers analysis differently’ from the appeals court, he wrote,” The Times reported, offering this interpretation for the Chief Justice’s message: “In other words: grant Mr. Trump greater protection from prosecution.”

During oral arguments at the Supreme Court, Trump’s attorney, John Sauer, had literally argued a president could order a coup and be protected by immunity because it was an “official act” of the presidency.

Sauer also argued a president could order the assassination of a political rival and still have immunity from prosecution.

Chief Justice Roberts responded to the “momentous trio of Jan. 6-related cases…by deploying his authority to steer rulings that benefited Mr. Trump, according to a New York Times examination that uncovered extensive new information about the court’s decision making.”

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In short, the Chief Justice used his powers to intervene and craft an opinion that some experts have said creates new law—certainly nothing that is found in the U.S. Constitution.

“There’s no legal authority for it,” remarked CNN legal analyst Norm Eisen back in December.

Nor, as the “originalist” far-right justices on the bench have adopted, does Chief Justice Roberts’ ruling lie in the “history and tradition” of the United States.

And yet, despite decades of history starting with Richard Nixon, and despite the scathing dissenting opinion from Justice Sonia Sotomayor, CNN reports on Tuesday, Chief Justice Roberts “was shaken by the adverse public reaction to his decision affording Trump substantial immunity from criminal prosecution. His protestations that the case concerned the presidency, not Trump, held little currency.”

“The Roberts Court has been in sync with the GOP political agenda largely because of decisions the chief justice has authored: For Trump and other Republicans. Against voting rights and racial affirmative action. Against federal regulations over environmental, public health and consumer affairs,” CNN’s Chief Supreme Court Analyst Joan Biskupic reported. “Roberts, joined by his five fellow conservatives, found that the former president was entitled to presumptive, if not absolute, immunity for actions related to his official acts. Roberts’ view of official acts, as opposed to private ones, was vast.”

Justice Sonia Sotomayor’s dissenting opinion on Trump’s immunity blasted Roberts and the far-right justices, famously declaring:

“Today’s decision to grant former Presidents criminal immunity reshapes the institution of the Presidency.  It makes a mockery of the principle, foundational to our Constitution and system of Government, that no man is above the law. Relying on little more than its own misguided wisdom about the need for ‘bold and unhesitating action’ by the President, the Court gives former President Trump all the immunity he asked for and more.”

She also wrote:

“The President of the United States is the most powerful person in the country, and possibly the world. When he uses his official powers in any way, under the majority’s reasoning, he now will be insulated from criminal prosecution. Orders the Navy’s Seal Team 6 to assassinate a political rival? Immune. Organizes a military dissenting coup to hold onto power? Immune. Takes a bribe in exchange for a pardon? Immune. Immune, immune, immune. Let the President violate the law, let him exploit the trappings of his office for personal gain, let him use his official power for evil ends. Because if he knew that he may one day face liability for breaking the law, he might not be as bold and fearless as we would like him to be. That is the majority’s message today.”

Watch the videos above or at this link.

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OPINION

‘Judicially Executed Cover Up’: Experts Say Jack Smith Filing ‘Major Indictment’ of SCOTUS

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1 week ago

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October 3, 2024

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Special Counsel Jack Smith’s explosive 165-page filing alleging that Donald Trump knew his claims were false and his efforts to cling to power were illegal is the most damning evidence yet against the ex-president, but some legal experts argue it also serves as an indictment of the U.S. Supreme Court.

Smith filed his brief, “the most comprehensive look at the evidence federal prosecutors have amassed in their case,” CBS News reports, last week under seal. U.S. District Judge Tanya Chutkan, who is overseeing the election interference and subversion case against Trump and was directed by the Supreme Court to determine which of Trump’s actions were “official acts” not subject to prosecution, released the motion on Wednesday. Smith’s filing contains “damning evidence against Trump,” as MSNBC reported, never before seen by the American public.

“When the defendant lost the 2020 presidential election, he resorted to crimes to try to stay in office,” Smith’s filing reads. “With private co-conspirators, the defendant launched a series of increasingly desperate plans to overturn the legitimate election results in seven states that he had lost.”

Some legal experts are angered at the Supreme Court’s actions which have delayed the trial, and, should Trump win re-election, they say, have effectively killed it.

READ MORE: ‘Biggest Whopper of the Night’: Vance’s ‘Heap of Lies’ on Abortion Was ‘Jaw-Dropping’

“The unsealed evidence in the January 6 case underscores how outrageous it was that the Supreme Court blocked Donald Trump’s criminal trial this year. It amounts to a judicially executed cover up,” charges Michael Waldman, President of the Brennan Center for Justice. Waldman was appointed by President Joe Biden in 2021 to the Presidential Commission on the Supreme Court of the United States, which issued a report on court reforms.

Special Counsel Jack Smith, knowing Donald Trump’s claims of “presidential immunity” ultimately would be adjudicated by the Supreme Court, had asked the Court on December 11, 2023 to rule on the ex-president’s assertions. In making what he acknowledged was “an extraordinary request,” as SCOTUSblog reported, the Special Counsel “contended that it ‘is of paramount importance’ that Trump’s claims of immunity ‘be resolved as expeditiously as possible.'”

Urging “a cautious, deliberative manner,” and not a resolution at “breakneck speed,” Trump’s lawyers told the Court they opposed expedited review. “Haste makes waste,” they said, according to SCOTUSblog.

One day later Smith replied, writing that the “public interest in a prompt resolution of this case favors an immediate, definitive decision by this Court.”

On December 22, the Court refused.

It wasn’t until April 18, 2024, that the Supreme Court agreed to hear Trump’s claims of presidential immunity. The Court heard oral arguments one week later, on April 25, but waited until the last day of its session, July 1, to release what became its landmark 6-3 ruling on presidential immunity. From the point where Smith first asked the Court to resolve the issue to the date it handed down its decision was more than six months.

Marcy Wheeler, who writes about civil rights and national security, dug into the 165-page filing and slammed the Chief Justice.

“John Roberts not only rewrote the Constitution to protect Donald Trump,” Wheeler charges. “He forced prosecutors to spend 14 pages arguing that it is not among the job duties of the President of the United States to attack Republicans who’ve crossed him on Twitter.”

“This is what the Chief Justice wants to protect. This is the all-powerful President John Roberts wants to have. Someone who can sit in his dining room siccing mobs on fellow Republicans.”

Professor of law Richard “Rick” Hasen, an internationally-recognized expert in election law and campaign finance, on Wednesday blasted the Supreme Court.

“Jack Smith’s Big New Jan. 6 Brief Is a Major Indictment of the Supreme Court,” is Hasen’s headline at Slate. In it, he explains his “anger is at the Supreme Court for depriving the American people of the chance for a full public airing of Donald Trump’s attempt to use fraud and trickery to overturn Joe Biden’s 2020 presidential victory before voters consider whether to put Trump back in office beginning January 2025.”

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He warns, “there is about an even chance that this will be the last evidence produced by the federal government of this nefarious plot. If Donald Trump wins election next month, the end of this prosecution is certain and the risks of future election subversion heightened.”

“And now,” Hasen laments, “perhaps the most important case in American history may never get to a jury and the American public will never get a chance to learn about this evidence and a jury’s judgment of this evidence before they consider returning Donald Trump to office.”

Hasen blames “then–Senate Majority Leader Mitch McConnell’s refusal to support Donald Trump’s conviction in the Senate after the House impeached him for these activities,” and “Joe Biden’s Attorney General Merrick Garland, who dragged his feet for well over a year before taking decisive action against the biggest threat to American democracy since the Civil War of the 1860s. His timidity is inexplicable and disappointing.”

“But worst of all is the United States Supreme Court,” Hasen charges, before also pointing to the actions of Chief Justice John Roberts:

“The New York Times recently reported on the internal Supreme Court deliberations, and they paint Chief Justice John Roberts, author of the Trump immunity decision, as having turned from a justice known for seeking common ground and minimalist outcomes to one set out to protect the office of the presidency at all costs. The opinion was so focused on the risks to the vigorousness of the activities of future presidents that could come from the threat of future prosecutions that it was willing to ignore the current threat to democracy today from Trump’s actions in 2020, not to mention his continued insistence that he won the last election.”

With damning charges Hasen concludes: “The fact that no jury may pass on the deadly serious allegations in Smith’s complaint will do more than simply let Trump and others off the hooks for their potential crimes. It will make future criminal activity related to American elections much more likely. And it all could have been avoided if McConnell, Garland, and especially the Supreme Court had done the right thing.”

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Image: Fred Schilling, Collection of the Supreme Court of the United States

 

 

 

 

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OPINION

‘Biggest Whopper of the Night’: Vance’s ‘Heap of Lies’ on Abortion Was ‘Jaw-Dropping’

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1 week ago

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October 2, 2024

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The first and only vice presidential debate of 2024 was effectively a tie, according to a poll from CBS News which hosted the event. The mainstream media remarked on the surprisingly “civil” tone and “policy-driven” answers. And although U.S. Senator JD Vance‘s refusal to say Donald Trump lost the 2020 election may become the most-recognized remarks of the night, the Ohio Republican’s comments—and lies—on abortion are being seen as damning.

“If there was a jaw-dropping moment of the night, it was Vance’s answer on abortion. Vance acknowledged that there are a lot of Americans who don’t agree with what he’s said on the issue,” Punchbowl News reported, appearing to praise the GOP vice presidential nominee. “Then Vance flatly declared that Americans don’t trust Republicans when it comes to abortion.”

“We’ve got to do so much better of a job at earning the American people’s trust back on this issue, where they frankly just don’t trust us,” Vance said.

What Vance did not say is why Americans don’t trust the Republican Party on abortion, and, as he said later during the debate, “don’t agree with” what’s he’s said on abortion.

Many said it’s his lies, one of which MSNBC’s Rachel Maddow later fact-checked.

“Vance lied so much about his record on abortion,” noted HuffPost’s Jennifer Bendery, with receipts (below).

“Holy Jesus,” remarked Esquire’s veteran liberal pundit Charles P. Pierce during the debate, “this abortion answer from Vance is such a heap of lies.”

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U.S. Senator Chris Murphy (D-CT) observed, “Vance says his party’s support for abortion is really unpopular so they need [to] work harder to ‘win people’s trust’. In other words, they are DEFINITELY going to pass an abortion ban and just work harder to pull one over on you.”

PoliticusUSA’s Sarah Reese Jones remarked: “The abortion segment was by far the worst for JD Vance, who is already having a bad debate.”

Legal scholar and University Professor Emeritus at Harvard University Laurence Tribe remarked: “JD Vance told the biggest whopper of the night when he denied ever publicly supporting a national abortion ban. He’s on record having supported such a ban. Jaw-dropping.”

During the debate (full transcript via CBS News), Vance was asked point-blank: “Will you create a federal pregnancy monitoring agency?”

“No,” he told CBS News debate moderator Norah O’Donnell, “certainly we won’t.”

That was the extent of his response to that specific question—but he went on to talk extensively about abortion.

“I want to talk about this issue because I know a lot of Americans care about it, and I know a lot of Americans don’t agree with everything that I’ve ever said on this topic,” Vance acknowledged. “And, you know, I grew up in a working class family in a neighborhood where I knew a lot of young women who had unplanned pregnancies and decided to terminate those pregnancies because they feel like they didn’t have any other options. And, you know, one of them is actually very dear to me. And I know she’s watching tonight, and I love you. And she told me something a couple years ago that she felt like if she hadn’t had that abortion, that it would have destroyed her life because she was in an abusive relationship.”

“And I think that what I take from that, as a Republican who proudly wants to protect innocent life in this country, who proudly wants to protect the vulnerable is that my party, we’ve got to do so much better of a job at earning the American People’s trust back on this issue where they frankly just don’t trust us.”

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Laura Chapin, a Democratic communications strategist, responded on social media: “A note to the male pundits opining on the #VPDebate2024 : every woman in America heard @JDVance say his friend in an abusive relationship should have had her abuser’s baby and remain tied to him for the rest of her life.”

“I take this very personally,” Chapin added, “because that’s what happened to one of MY friends: she was 19 years old, in an abusive relationship, and had an abortion so she could escape his control and not be tied to him forever.”

Jessica Valenti, who writes a daily Substack on abortion, observed, “Vance tells the story of a friend who said she needed an abortion in order to leave an abusive relationship, but doesn’t say that the law he supports would have forced her to stay.”

As some have noted, Vance has suggested people in abusive, “even violent” marriage should stay together. His remarks have been thoroughly analyzed and he has issued a statement that offers no definitive answer, but his remarks during Tuesday night’s debate would make it appear that is what he believes.

“I find myself wanting to believe Vance’s moments expressing empathy,” remarked “The View” co-host Alyssa Farah Griffin, who served as Trump White House Director of Strategic Communications and Assistant to the President. “Then I remember the entire persona he spent the last 5 years building as an internet bully who derides women, doesn’t care about war-torn Ukraine, & didn’t care about how his lies impacted Springfield.”

MSNBC Legal Analyst Kristy Greenberg, a former SDNY Criminal Division Deputy Chief, went even further in dissecting Vance’s remarks.

“At the VP debate, JD Vance said a woman he loves told him she was in an abusive relationship and had an abortion. His takeaway: shame that women don’t trust Republicans. And then he lied repeatedly,” she wrote, enumerating some of his lies and actions:

“1. He said he never supported a national abortion ban; he campaigned on eliminating abortion 2 years ago.

2. He said he supports fertility treatments; he and Republicans voted against Democrats’ bill establishing a nationwide right to IVF.

3. He said he supports affordable child care; he was a no show on Democrats’ bill to expand the child tax credit, which Republicans blocked.”

“My takeaway,” she concludes, “shame that women can’t trust Republicans because they lie. They say they support popular policies that help women when they don’t. We must call out their lies and expose the ugly truth every single time.”

CNN in July reported, “‘JD Vance said in 2022 he ‘would like abortion to be illegal nationally’.”

That same month HuffPost’s Jennifer Bendery reported: “JD Vance Said We Just Need To Reframe The Idea Of Forcing Women To Stay Pregnant.” Bendery also posted a screenshot from his official Senate website which reads: “End Abortion.” She says that was later scrubbed from the site.

Watch the video above or at this link.

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