The release of the first part of Jack Smith’s report at midnight was the special counsel’s version of the Supreme Court’s Dobbs decision: we had seen it before. Putting aside the public filings where Smith fought to get this information out before the election, there was little new in the report. What the report did not contain is an explanation of how Smith destroyed his own cases against Trump. However, one notable element was Smith’s reliance on a dubious concurrence by Justice Ketanji Brown Jackson, the subject of a prior column on what would be an interpretation that was too clever by half.
Much of the report was vintage Smith in dismissing countervailing precedent and insisting that he could “obtain and sustain a conviction at trial.” He may be right about obtaining a conviction before a D.C. jury and a highly motivated judge against Trump. However, he would not have been able to sustain any conviction — and this report makes that abundantly clear.
Smith repeats the same conclusory evidence, such as citing how Trump said “fight” ten times in his January 6th speech. He minimized the immunity decision by removing some evidence but kept largely the original indictment. However, the treatment of the obstruction claims was the most telling and indicative of Smith, who has repeatedly lost cases due to overextending constitutional and statutory authority.
The Supreme Court’s decision in Fischer v. United States rejecting the use of obstruction of legal proceedings against January 6th defendants will potentially impact hundreds of cases. For some, it may lead to dismissals or, in the cases with multiple charges, resentencings. One of those cases that will be impacted is the pending prosecution of former president Donald Trump who is facing four charges, including two obstruction counts. It was not clear if Special Counsel Jack Smith would yield to the decision or possibly take the dubious path laid out by Justice Ketanji Brown Jackson in her concurrence.
However, Smith tended to push the law to the breaking point to bag defendants. That was the case when his conviction of former Virginia Governor Robert F. McDonnell was unanimously reversed as overextending another law.
As I wrote previously after the decision, “It is doubtful that [Smith] will go quietly into the night after the Fischer decision.” In most cases, a prosecutor would go back and secure a superseding indictment in light of the loss of the obstruction claims. Those claims were central to the narrative of the government under the Trump indictment. However, I wrote that it “is not Smith’s style” to yield to precedent and that he would likely “take a not-so-subtle hint from Jackson in her concurrence.”
Jackson supported the majority in finding that the obstruction provision, Section 1512(c), was enacted after the Enron case to address the destruction of documents and records.
Section 1512(c)(1) prohibits corruptly obstructing an official proceeding by altering, destroying, mutilating, or concealing a record, document, or other object with the intent to impair the object’s integrity or availability for use in an official proceeding. However, a second provision under subsection (c)(2) allowed for charges that would “otherwise” obstruct, influence, or impede an official proceeding. The Court held that the obstruction cases under Section 1512(c)(2) must be tied to impairing the integrity or availability of evidence.
However, in a single justice concurrence, she added a way that Smith and other prosecutors might still be able to shoehorn January 6th into a Section 1512 offense:
“That official proceeding [Congress’s certification of the Electoral College vote] plainly used certain records, documents, or objects—including, among others, those relating to the electoral votes themselves. And it might well be that Fischer’s conduct, as alleged here, involved the impairment (or the attempted impairment) of the availability or integrity of things used during the January 6 proceeding “in ways other than those specified in (c)(1).” Ante, at 8. If so, then Fischer’s prosecution under §1512(c)(2) can, and should, proceed. That issue remains available for the lower courts to determine on remand.”
Once again, no other justice joined Jackson in the concurrence.
Right on cue, Smith revealed that he was going to do precisely what I feared in taking a position supported by a single justice. In his report, Smith wrote:
“Mr. Trump’s and his co-conspirators’ obstruction involved replacing valid elector certificates from the contested states with false ones they had manufactured-the Office anticipated the possibility of such a result in Fischer and confirmed that the evidence would prove Mr. Trump’s guilt beyond a reasonable doubt even under a narrow interpretation of Section 1512(c)(2).”
Just saying that a proceeding involves “certain records” is transparently artificial and forced. Even the submission of an alternative slate of electors is not the destruction of electors certified by the secretaries of state.
The federal law allows for challenges in Congress, which Democrats previously utilized without claims of insurrections or attacks on democracy. J6 Committee Chairman Bennie Thompson (D-Miss.), voted to challenge the certification of the 2004 results of President George W. Bush’s reelection; committee member Jamie Raskin (D-Md.) sought to challenge Trump’s certification in 2016. Both did so under the very law that Trump’s congressional supporters used in 2020. And Pelosi and Senate Judiciary Committee Chairman Dick Durbin (D-Ill.) praised the challenge organized by then-Sen. Barbara Boxer (D-Calif.) in 2004.
Those challenges under the same loose theory could have been viewed as attempting to negate or destroy certifications from the states. It would have likely, in my view, result in another reversal. However, Smith is always about securing convictions more than sustaining appeals. That is why he filed the second case in D.C., where he was given the best possible judge for the prosecution, a judge viewed by many as predisposed against Trump.
In a sentencing hearing of a Jan. 6 rioter in 2022, Chutkan had said that the rioters “were there in fealty, in loyalty, to one man — not to the Constitution.” She added then, “[i]t’s a blind loyalty to one person who, by the way, remains free to this day.” That “one person” was then brought to her for trial by Smith.
So Smith was going to proceed on the theory of a single justice with the help of a favorable jury and a motivated judge. Little has changed with Smith since his unanimous reversal in the McDonnell case, which seems much of the reason that he was appointed.
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. He is the author of “The Indispensable Right: Free Speech in an Age of Rage.”
This column also appeared on Fox.com
Coach Tommy Tuberville
@SenTuberville
“I just read an EXTREMELY DISTURBING IG report.
Last December, Secretary of Defense Lloyd Austin was hospitalized and failed to follow the law by notifying the White House or Congress.
Turns out, the same thing happened AGAIN in June. The Secretary of Defense went AWOL TWICE last year; and nobody knew about it.
Unacceptable.
@PeteHegseth and @RealDonaldTrump can’t get here soon enough.”
That tells us how effective Austin has been. He was AWOL and nobody noticed!
It cannot be said LOUD enough:
Joe Biden is a POS
Joe Biden is a LIAR
Joe Biden is a TRAITOR
Joe Biden is a CRIMINAL
Joe Biden is an embarrassing DISGRACE who cannot be dumped out of the White House soon enough.
Good riddance you despicable POS
Smith alleges that he could “obtain and sustain a conviction at trial.”
The Left excels at flights of fancy.
Smith’s ranks down there with Biden’s detachment from reality: The he and KH (?!) could have beaten Trump.
That is the premise for every DOJ attorney to proceed with any case. If they don’t believe they can get a conviction, there is no case brought. Nothing new, media conflated tripe.
As one never indicted or convicted of any crime, not a member of any government agency – my communications with my member of Congress are being blocked in 2025.
Coincidentally my next door neighbor works for the FBI field office in Richmond, Virginia. I have a First Amendment right to contact my representatives in Congress. What does Turley think about this gross betrayal of the American oath of office by constitutionally oath-sworn officials?
I’ve contacted various government-watchdogs over the past 20 years – nobody will uphold my constitutional rights.
What did you do to arrive at where you find yourself?
At 10am, the Supreme Court will be taking up a highly-consequential matter — whether the people of TX through their Legislature & Governor in Austin have the power to protect children from the harmful effects of pornography – vs. –
whether they are made powerless in this regard by a small group of smut profiteers hiding behind some bizarre theory of pornography as political speech in the public square protected by the 1st Amendment.
It was John Adams who (paraphrasing) said “This Constitution is written for a morally virtuous people, without which it can’t work”.
What does Adam’s alleged quote have to do with porn when they the poerners are trying to use the 1st A as a defense?
What does moral virtue have to do with blocking children’s access to today’s porn? Parents have a right and a responsibility to guide children in the direction of normal socio-sexual development, so they can be successful in pair-bonding, marriage and childraising. All the evidence from the past 10 years makes it clear that porn sets bizarre expectations in the boys who watch it about how to conduct themselves in relationships — in a manner that is not sensitive to and respectful to the partner, but rather cold and domineering. Moral education has traditionally filled the role of preparing youth for building solid, trusting relationships, and a key part is setting helpful expectations for negotiating sexual intimacy.
What’s bizarre is the idea that the first amendment protects only “political speech in the public square”. It protects all speech with a very small and exhaustive list of known exceptions, and the Texas bill imposes a significant burden on adults for speech that is clearly protected.
What’s the burden imposed? I am sure it’s worth the imposition to protect children. Studies show that pornography is addictive and damaging to people.
The burden is that ALL users must provide a credit card number and other sensitive information, exposing themselves to significant risk. Experience has already shown that this is a significant barrier to access. And the burden on providers is so high that some simply refuse to serve anyone in a state that imposes such a restriction. That’s unconstitutional
I didn’t know that, porn sites are notorious for corruption as they’re often located out of country and controlled by organized crime. Sounds like a good way of making the users think twice before watching that crap. I am positive that these people will now transition away from real “actors” and move to AI generated participants. No costs, no STDs, pure profit off the wankers among us.
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”
My copy of the First Amendment lacks the qualifier “political” for the free speech to be protected. Are you working from a privileged copy of your own, handed down to you over that past 145 years? Sam Adams (a distant relative of mine) said and did a lot of things, some of which ran counter to the founding principles of this nation. Even if your quote is not one of those, it is anecdotal, at best, and cannot be incorporated in the plain language meaning of the amendment text. There is no question that impressionable children should not be permitted to see such things. The question is the proper source for restraints on that. That source must be the parents. If our current society makes exercise of such parental authority and responsibility impractical or impossible, then we need to address and change the factors and dynamics that have created that situation, not compromise the First Amendment.
Well, you may have not noticed, but the 1st Amendment did not stop these constraints on public speech:
• false claims about drugs and medical devices
• deceptive information geared to selling or buying securities
• giving false information on your tax return
• identity theft and fraud
• filing a false police report (e.g. Jussie Smollett)
• fraud when applying for citizenship, drivers license, or public benefit
• frauds in the gambling industry (e.g. rigged sporting events)
• business frauds (willfully misrepresenting what is being promised)
• all manner of cybercrimes
• trademark violation used to deceive consumers
• defrauding a bank, insurance company
• using someone’s likeness (persona) for commerce without their permission
• fraudulent claims as to inventorship and copyrights
• consumer frauds (e.g., deceptive fundraisers)
this list is far from exhaustive. What you’ve failed to notice is that, in most walks of life, frauds and deceits waged against the public and the government are mostly illegal, or grounds for torts.
The EXCEPTION area is political speech, where a wide berth is given so that unpopular ideas can ne voiced in the public square.
And, most people who’ve given it any thought support these anti-fraud statutes. Who among us wants to be tricked and duped?
ALL of your examples are just repeated instances of the same handful of known exceptions to the freedom of speech: Fraud, perjury, defamation, patent/copyright violation. There’s also threats and incitement, criminal conspiracy, obscenity, and “fighting words” may still be on the list (but probably isn’t). The list is exhaustive and if anything is shrinking.
Jack Smith is a partisan whose career has imploded and is on a train bound for nowhere. He acted like judge and jury and led an “investigation” looking for a crime. His 15 minutes of fame has come and is quickly fading into oblivion.
“See ya, hate to be ya.”
Another comment full of clichés … judge and jury?
Well there was judge, it was smith, there was no jury because there never was a trial.
The comments here are getting dumber by the day.
Well, my take is that I appreciated E.M.’s comment much more than yours. So, there ya go…
President Donald J. Trump was convicted of 34 felonies.
George Washington, Thomas Jefferson, John Adams, Ben Franklin, Alexander Hamilton, James Madison, George Mason et al. were effectively convicted of treason and sentenced to hanging.
_________________________________________________________________________________________________________________________________________________________________________________________________________
“The Manhattan District Attorney today announced the all-count trial conviction of DONALD J. TRUMP, 77, for falsifying New York business records in order to conceal his illegal scheme to corrupt the 2016 election. TRUMP was convicted by a New York State Supreme Court jury of 34 counts of Falsifying Business Records in the First Degree. He is expected to be sentenced on July 11.”
– Alvin Bragg
________________
“If they had captured him, or any of the other leaders of the rebels, terrorists and insurgents of the colonial civil war, the loyal British might well have hanged al of the British turncoats as traitors. Obviously, all of them were guilty of treason.
“After the French, Spanish and Dutch defeated the loyal British, the British colonies were granted independence as 13 sovereign republics, and that grant of independence essentially nullified any opportunity to prosecute the traitors for treason after 1783.
“By The Treason Act of 1777 (as renewed annually through 1783) Parliament authorized the arrest and incarceration of anyone suspected of high treason or piracy. That certainly included George Washington, the members of the Second Continental Congress that signed the Declaration of Independence, and the members of the many colonial governmental bodies that had passed resolutions of Independence before the Congress did so on July 2, 1776.”
– Tom Stahr
So both Donald J. Trump and George Washington were criminals?
Oh, my!
Het anon, get a brain will ya. The fathers were charged with treason, not convicted. Don’t forget to mentiona that it was under English law ca. 1775, not the US Constitution.
Stop using quotes without a source. Wikipedia is not a reliable source.
Galatians 6:7
“Do not be deceived: God cannot be mocked. A man reaps what he sows.”
_________________________________________________________________________________
LET THE COUNTER PROSECUTION BEGIN
Jack Smith, Al Bragg, Leticia James, Fanny Willis, Tanya Chutkan, Matthew Colangelo, Juan Merchan, Loren Merchan, Merrick Garland, Barack Obama, the Obama administration holdovers et al. conspired to wrongfully disparage and convict an innocent person, President Donald J. Trump, by fraudulent means, “lawfare,” and syndicate.
The criminal co-conspirators in this case must be prosecuted to the fullest extent of the law for egregious electoral fraud, election interference, corruption, abuse of power, usurpation of power, breach of public trust, conspiracy et al.
The resultant penalties must be severe for the extremity of the specific crimes and for the sake of moral and general principles.
I wonder if Section 1512 can be used against the J6 Committee for destroying their own records. That and the Bidens not having to pay income tax on their grifter income are 2 things that continue to irk me.
No kidding, every time I think of that POS telling us to pay our fair share. People need to stop and think, if Trump got over on someone in business, that’s business between private entities. When Politicians like Biden and Clinton sell the country, they are ripping every tax paing citizen off. It’s way past time for some Rst hides on the barn door, pardons be damned!
It might be usable against staff, but members of congress have constitutional immunity for their congressional acts.
John, the courts have long held that congressional immunity extends to staff as well, when they are exercising their official duties.
But destroying evidence (section 1512) is a crime even for members of congress. It’s not part of their duties, so their immunity doesn’t extend to it.
Joe Biden’s financial records and tax returns were never reviewed. That was the last shoe left hanging in the whole sorry. I would like to know if our 46th president was compromised by our adversaries whether he is ever prosecuted or not. He still has time to pardon himself which could be reasonably construed as an admission of guilt.
While questioning Hegseth on military issues, Sen. Tammy Duckworth (D-Ill.) asked him about the Association of Southeast Asian Nations, or ASEAN. But when Hegseth began talking about South Korea, Japan and Australia, Duckworth was forced to call him out.
“None of those three countries are in ASEAN,” she told him. “I suggest you do a little homework before you prepare for these types of negotiations.”
Yea, I want this guy to be Sec Def. Doesn’t even know basic geography. just close your eyes, aim, fire, that missile will hopefully land somewhere nice.
Are you butt-hurt? The composition of ASEAN is not the same as geography. (Think NATO: many members, such as Turkey, are not near the north Atlantic.) Hegeth’s IQ is 4x yours and he is your next SecDef. Get used to it.
Hegseth has a BA in politics in Princeton, and a Masters in Public Policy from Harvard. He served in the National Guard and the Army, and was deployed 3 times, serving in Iraq and Afghanistan, being awarded 2 Bronze Stars. He is well-educated, served with honor in the military, and has experience with politics.
That’s what you got? A comment about ASEAN.
Yeah, that’s all the butt-hurt anonymous commie troll has. The very definition of pathetic.
Not only that. ASEAN is an economic association not a military one. Has little to do with the Sec Def.
Just shows how desperate and stupid our cowardly anonymous left-wing troll is.
Karen S: Hegseth is a sexual assaulter, serial cheater on all of his wives, conceiving children with other women while married, a notorious drunkard, but, most of all, even without these character flaws, incompetent and lacking experience in leadership. The two veterans organizations he was responsible for kicked him out due to habitual drunkeness and financial mismanagement. Hegseth did not deny the accusations leveled against him during the confirmation hearing–his stock answer: “unsubstantiated allegation”. He paid off a woman he assaulted, too.
As Senator Duckworth explained–the manager of an average Applebee’s is better qualified to run the DOD than Hegseth, because they have to successfully manage more people than Hegseth ever has and must balance the books—2 things Hegseth has demonstrated he cannot do. You cannot have a habitual drunkard running the DOD because it is a 24-hour a day operation.
Karen S: Gigi is a opinon assaulter, eager to invoke sailor talk and globalistic criticism. She/it is also a plagiaristic and stylistic copy-catter, who despite claiming to be a lawyer, has no understanding of proper attribution of sources. although others think so, I Don’t think she is intelligent enough to be a paid troll.
What did I get wrong, Tom–WHAT? Cite me some facts. You are the one who has picked up the MAGA media tactic of throwing out conclusory insults at people without any factual foundation. Running the DOD is a very serious matter. In addition to being a habitual drunkard, Hegseth has character flaws, lack of experience and has proven he cannot handle finances. But the egomaniac wants him–and he might just get in anyway because cowardly Republicans won’t stand up for America. If he does get in and screws up badly, we all may get hurt. We all found out with Hurricane Katrina what putting someone in a position they are unqualified to handle can do–people in New Orleans actually died of thirst.
He also said, and I paraphrase, “Me and my friends started a company.”
Seriously?
The only other person in the public domain I’ve ever heard do that is Dan Bongino.
1 Duckworth is approximately equivalent to 1.05 Hironos. Now Duckworth + Hirono + Warren + Gillibrand might approach 1 Slotkin, oh hell what’s the point?
The democrats looked like idiots today.
South Korea, Japan and Austrailia are part of South East Asia, they are not members of ASEAN.
This is not a geography issue, it is more like knowing the difference between members of the G7 and knowing the mebers of the OECD
Duckworth was forced to call him out. Same Duckworth that furiously defended the current similarly brown-skinned former general Loyd Austin when he went AWOL for over a week?
Duckworth, furious that Hegseth didn’t leave TGWOT a cripple as she did, dependent on politicizing her wounds incurred while serving as a co-pilot as well as her brown skin and vagina, eagerly attempted to portray herself the equal of Obama’s “foreign policy expert”, Joe Biden.
Hegseth crushed her – Democrats claimed that as a victory while CNN is now projecting Hegseth will easily pass confirmation without a single dissenting Republican vote.
Duckworth succeeded in proving she is the equal of Joe Biden on foreign policy. But that’s about it.
The most telling cues people are not talking about. We know J6 was not a populist insurrection… Let’s talk rather about the push on Pence. I rejoice somewhat to read the smallest contribution of the 5 points cited in part 1… 2 pages only on the crucial meeting between Trump, Eastman and Pence at the Oval Office. I always claimed Pence did nothing wrong, but the extent of malicious intent with Trump concerning plotting is all in that meeting. If he plotted, than he is, or was i trouble, as charges are dropped. Eastman and Trump are peddling a false theory of the law which is so grotesque that Pence doesn’t give it an ounce of credibility… Pence knows his duties and he knows Trump and Eastman are BS-ing. If Trump had kept quiet, he could have pretended only his council in the matter was at fault and not him. But in fact he opens his mouth and all of his credibility goes down the drain.
The only authority the ECA gives to the Vice President on electoral vote count day is to read the results state by state, take objections to the read results” Then, when one result is objected the VP asks the members of the US Congress present to retire to their respective chambers, argue their case between themselves, comeback and vote on the acceptance or rejections of the electoral college vote for that specific state. The VP goes on to the results of the next state… that is it.
The Electoral Vote Count day only allows the US Congress to deal with the Electoral College Vote (a primary Federal authority and Jurisdiction, not the public vote (a primary State Jurisdictional authority). The members who refuse the result, must make an argument to their peers with their own investigation, but the authority of determining voter fraud lies within the Commission of each state, and without such an acknowledgement, the case for the members complaining is thin. The Envelops with the Votes may not be “returned to the state for reconsideration”…all this ECA process is in one day, and if the ECA college role count doesn’t conclude with a winner with at least 268 electoral college votes, than the choice of the President effectively goes to the US House, but not by choice of the VP, but because of the tabulation. That’s it.
In the WH meeting, of which the second indictment keeps the unprotected by immunity content, Trump betrays his intention of acting unlawfully to get, or in hoping getting a victory. He is acting as a candidate using Presidential powers to contravene the rightful process imposed by the ECA, a dereliction of duty for a President of the United States (who has no stated Presidential authority on that day), an attempt to circumvent the result of an election, and the intimidation of an appointed official in his official duties and in this regard he is neither protected from prosecution nor impeachment where he could be accused of Treason… This is where the “beef” lies.
Mr. Picard – your entire argument is competely debunked by the 1960 decision by VP Richard Nixon to count the Democratic Electors from Hawaii. The HI results had Nixon narrowly win. The election was called for Nixon, the state certified Nixon as the winner, the Republican electors voted for Nixon on Electoral Count Day. Their votes were certified to Nixon on J6.
However the DNC beleived there was a vote tabulation error on election day. They challenged the election – AFTER it was certified. The DNC appointed a slate of Democrat electors – exactly like the purportedly fake Trump electors in 2020.
They too voted on ECD for Kennedy. There was a recount, or more accurately the tabulations were checked, the State decided that the initial tabulation was wrong, and AFTER ECD day they sent Congress a new certification stating that Kennedy was the winner.
Nixon had two slates of electors, multiple certifications – including the certification of Kennedy that was done at the very last minute and flown from HI to DC in order to arrive on time.
Nixon picked the electors for Kennedy to present to congress,
No one went to jail, no one was charged with being a fake elector.
The DNC alternate slate was deliberately selected and they voted on ECD even though the state was NOT certified for Kennedy at the time. They did so because the EC vote MUST take place on ECD. Without thos uncertified electors voting for Kennedy on ECD congress would have had only two choices – accept the Republican electoral vote, or refuse to count Hawaii at all.
Contra left wing nuts – this is NOT some obscure debunked constitutional theory.
It is precisely what happened in 1876 and again in 1960.
Pence did nothing wrong on J6, But he would have done nothing wrong had he presented the Trump electors instead of the Biden electors – though had he done so, with certainty a member of the house and a member of the senate would have objected and the odds of the Trump electors being accepted over the biden electors was near Zero.
I would further note that was ONE of 9 constitutional scenarios Eastman presented to Trump prior to J6 in the meeting
and NOT the scenario that Eastman recomended, and NOT the one that Trump intended to go forward with.
What Eastman recomended and what would have been attempted but for the disruption on J6 was for Members of Congress to object to the certifcation of the 6 Swing states and direct the Legislatures of GA, PA, NV, AZ, WI and MI to take 10 days to investigate allegations of Fraud and for the Legislature rather than the executive to certify the winner of the election in those states. That is very similar and frankly more constitutional that what occured in 1876, when congress voted to appoint a commission to study election fraud and make recomendations to congress. That commission met reviewed the election and asserted that Harrison rather than Tilden had won the election. That is what happened on the surface. Behind the scenes there was a deal that Democrats would allow Garrison to be president if Republicans agreed to withdraw union troops from the south.
Regardless my point is that you like most left wing nut scholars are talking out of your a$$.
Absent a supreme court ruling to the countrary, and The supreme court is NEVER going to interfere in ANYTHING that congress does regarding certification of a presidential election, what has occured in the past without the supreme court subsequently rejecting it, is preemptively constitutional.
You do not get to say in 2020, that Trump and his alternate electors are criminals because they did almost exactly what was done in 1876 and 1960.
You can claim that it is unusual. But the FACT is that when Congress sits on J6 to certify the EC vote – they are perfectly free to do any damn thing they want. They can certify the EC vote, they can reject it, they can vote directly for president as specified in the constitution completely ignoring the EC – and they have done that in the past.
I would firther note that Congress – not the 19th century congress that passed the Electoral count act, nor Pelosi’s that passed a new one in 2021, can NOT pass a law directing a future congress how it must act in fulfilling its constitutional duties.
The constitution is crystal clear – each congress gets to make its own rules. PERIOD
Hopefully we will never see the Farce that was the two Trump impeachments again. But depite the FACT that those impeechments violated the letter and intent of the constitution, and contra Turley both impeachments were constitutional.
Why ? Because with respect to the rules by which Congress acts – congress gets to make its own rules.
Trump could NOT appeal his house impeachments to SCOTUS arguing that they were unconstitutional – even though they were. Because SCOTUS does not have jurisdiction over how congress does its business.
Any congress that entirely ignores laws made to constrain the actions of future congresses is acting completely constitutionally and SCOTUS will not force them to follow laws enacted by prior congresses.
Congress can bind the states, it can bind the Executive – with respect to acting on laws passed by congress,
But it can not bind itself in the future.
When Congress sat on J6 2021 to determine who would be inaugurated in 14 days, they could pretty much do whatever they wanted. Had they behaved too radically they would have faced the future wrath of voters, But SCOTUS would not and can not intervene.
If you do not like this – and I personally do not. Congress should be free to politically impeach as an example,
Then you must amend the constitution to give SCOTUS some jurisdiction over the rules congress makes for itself.
This is pretty pure separation of powers stuff.
Boom
You can claim that it is unusual. But the FACT is that when Congress sits on J6 to certify the EC vote – they are perfectly free to do any damn thing they want. They can certify the EC vote, they can reject it, they can vote directly for president as specified in the constitution completely ignoring the EC – and they have done that in the past.
This is wrong too. Congress does NOT “certify” the EC vote. Look at the constitution. There’s not one word about anyone “certifying” it. Congress’s only role is to witness the count. The VP’s only role is to open the certificates and hand them over to be counted. So who decides which votes to count? You’d think it would be whoever’s job it is to count them, but the constitution neglects to say who that is! All it says is that they “shall be counted”! What horrible horrible drafting!
In any case, Congress is NOT free to ignore the EC vote, nor to elect the president itself. The only way the House gets to elect the president is if the EC votes are split equally, or three candidates get votes and nobody gets a majority. But that’s a majority of the actual votes, not of the maximum possible votes. So it’s not 270, it’s a majority of however many votes are submitted and not rejected.
Wrong on several counts.
The only authority the ECA gives to the Vice President
Stop right there. What the Electoral Count Act says is irrelevant, because the whole point of Eastman’s theory is that the ECA is unconstitutional, as indeed it obviously is. I think Eastman is wrong in claiming that the VP has a role in the count, but the ECA is equally wrong in claiming Congress does. The constitution gives NEITHER of them any role beyond witnessing the count.
So how should disputes over the validity of electors’ votes be resolved? It doesn’t say. It’s fatally flawed, and needs to be amended. But in the meantime if someone is to be in charge of resolving such disputes Eastman’s argument for the VP is just as strong as the ECA’s argument for Congress.
if the ECA college role count doesn’t conclude with a winner with at least 268 electoral college votes, than the choice of the President effectively goes to the US House,
That is outright false, false, false. There is NO REQUIREMENT for 268 votes. All that is required is a majority of the electors. First of all, if all 368 electors vote, and all their votes are counted, then a majority is 270, not 268. But if some electors’ votes are rejected, whether by the VP or by Congress, then the majority required is smaller. For instance if Florida’s 30 electors are rejected then there are only 508 electors so the majority is 255.
Again, though, the ECA is unconstitutional. Eastman is obviously correct about that.
Didn’t Eastman use precedent practice to base his argument upon? Doesn’t that carry validity of past performance?
No. There are no precedents on this. The ECA came out of the crisis of 1877. The president of the senate (there was no VP at the time) took the position that he got to decide disputed returns, Congress said it got to decide, and the upshot was that Congress enacted its view into law.
As Eastman correctly pointed out, that’s not how it works. Congress doesn’t just get to assert its own opinion and award itself powers that the constitution doesn’t.
But where I think he’s wrong is that he says Congress was actually wrong, and the senate president was right. Neither position has any support in the text of the constitution, so they were both wrong.
When did the Supreme Court rule on the constitutionality of the Electoral Count Act? As far as I’m aware of, they never did. Now you may consider the ECA to be unconstitutional, like Jack M. Beermann and Gary S. Lawson, both of Boston University School of Law does.
https://scholarship.law.bu.edu/cgi/viewcontent.cgi?article=2083&context=faculty_scholarship
But for the director of the Cato Institute’s Robert A. Levy Center for Constitutional Studies and editor in chief of the Cato Supreme Court Review, Thomas A. Berry, doesn’t.
https://www.cato.org/blog/yes-electoral-count-act-constitutional
So until the Supreme Court rule on the ECA’s constitutionality, it’s in my personal opinion that it is constitutional. And it’s there to ensure that there won’t be another issue when counting the Electoral College results.
Since I’ve been indulging in going on tangents, now seems like the perfect opportunity to say that the Affordable Care Act has made insurance so expensive, that the unsubsidized can’t afford it at all.
The health insurance (not top tier) for me and my child now costs over $1500/month. My husband’s policy costs around $1300/month, though I’m going to get him a different policy for around $1200/month. That plan still has a deductible, and a separate prescription deductible, and if you are hospitalized, you pay 35% coinsurance.
My God. The mind boggles.
More and more people I know, small business owners and those in trade, are opting to roll the dice and not get insurance. Those who aren’t subsidized cannot afford this. Over $2800/MONTH for health insurance for a family of 3, not including all the out of pocket costs, the copays, deductibles, and coinsurance? It was evil for Democrats to do this to people, but they got away with it because most people have either an employer policy, or Medicare, and they didn’t particularly care about the minority of individual policy holders. You’re either poor, or you’re rich, but no matter what you make, you’re no longer effectively middle class if you’re self employed.
If you’re subsidized, you have a Covered California Exchange policy. I still haven’t met a good doctor who accepts an Exchange policy. In fact, when I called around to ensure my husband’s doctors would accept the new policy, their first question was, “It’s not a Covered California policy, is it”?
Even those lucky enough to have an employer policy, where your employer subsidizes your insurance premiums, still think insurance is so expensive, and cuts costs to a degree, that many celebrated the cowardly murder of the United Healthcare CEO, Brian Thompson. Those people don’t seem to make the connection that it was the Affordable Care Act that jacked up insurance premiums, to the point that many insurers either reduced the number of states they operate in, or went out of business entirely. The remaining insurers were the massive ones that streamlined cost cutting measures to remain in the black.
The ACA was NEVER about saving Americans money on healthcare costs.
https://www.cnn.com/2014/11/13/politics/tapper-gruber/index.html
Here one of the architects of the ACA was on record stating that the design of the ACA meant that subsidies could only flow through state Exchanges. The jokes on voters, because Exchange policies are so badly designed that most reputable doctors won’t accept them. Having a plastic insurance card is worthless if the cancer center, specialist, or a decent doctor you need won’t accept it.
https://www.forbes.com/sites/theapothecary/2014/07/25/obamacare-architect-agreed-with-gop-exchange-subsidies-can-only-flow-through-state-exchanges/
The problem is that the ACA was left in place, causing mayhem, long enough that voters don’t seem motivated enough to get rid of it. Yet, they cheered the murder of a health insurance CEO. The rhetoric seems to be that it’s all the evil, greedy, health insurance companies’ fault. No, it’s not. It’s the fault of voters who put Democrats in power, who lied about letting people keep insurance that they liked, and about saving Americans money. It’s the fault of Obama, Pelosi (“We need to pass the bill to learn what’s in it), and all the other Democrats who voted the ACA through, and then failed to acknowledge it was a dismal failure.
If you’re celebrating the murder of a health insurance CEO, then you de facto admit that the Affordable Care Act wasn’t affordable.
Some blame goes to John Roberts for dishonesty inventing a pretext to uphold it (twice) even though it is blatantly unconstitutional, and to RINO John McCain for blocking its repeal.
I truly believe that someone has some dirt on Roberts, and that they use it from time to time.
Maybe that’s why he won’t say who leaked Dobbs.
Absolutely. Democrats had some help.
I’m just beside myself at how expensive health insurance has become under the “Affordable” Care Act.
This is a great way to destroy entrepreneurship in America, with nothing but corporations left behind as small businesses fold. It’s becoming more and more expensive to run a small business, especially in California. Many individual policy holders are small business owners.
I was trying to find an article, with no success, but the point was, that if you were making about $20,000 or maybe a bit more, that it was cost prohibitive for you to get a raise, or find a better paying job. Because the bracket change for Obamacare, and the new deductibles, would wipe out anything you made if you got sick. IIRC, there would be about a $1,000 premium increase monthly, and a $6,000 or more deductible, or about $18,000 total per year. So it would make no sense to accept a $10,000 per year raise. These numbers are from memory
I don’t recall the thresholds, but it’s the Welfare trap. I’ve known people who get stuck this very way. They can’t afford to get off Welfare benefits or insurance subsidies, because they won’t make enough money to pay for everything and still buy food or make rent.
I found one of the articles, but I was looking for the more detailed one:
https://market-ticker.org/akcs-www?singlepost=3430443
Yes, people can not afford to get off welfare, or to get off SocSec Disability, either. Mainly because of the loss of the healthcare benefits. Plus, disability is a sure thing – the check comes in month after month, and you get COLAs too. But if you get off, to get a job, how sure can you be that your job will last, or that your hours will not be cut. As far as raises, you can pretty well forget it. Plus, if you do have medical conditions, which if you are on disability, you will have, who wants to hire you as a full time worker, where you will run up the costs on the company health plan. At best, you will get part-time hours, with no benefits, and not even holiday pay.
Floyd and KarenS: Provocative that the very government that creates and ensures our freedoms, somehow ensures our continued dependency on it (govt)–and increases revenues by taxing us for this enlarged role.
I truly wonder what our founding fathers would think of the government’s finger in every pot that controls our lives; indeed, it creates itself as a competitor in industry. Is it a good (protective) thing or a bad (creating dependency) thing? I dunno.
The ACA is NOT “blatantly unconstitutional”. As Roberts CORRECTLY wrote, an individual mandate would be unconstitutional, but the ACA never contained any such thing. There was never any requirement that anyone buy insurance. That was the big finding that drove the rest of the decision.
Read the act, and there is not one word requiring anyone to buy insurance. It was always perfectly legal to choose not to buy it, and to pay the “penalty” instead. For many people that was the smart thing to do, because the “penalty” was lower than the cost of the insurance they didn’t want or need. The government itself acknowledged this, and budgeted for the millions of dollars it expected to receive from people making that choice. And that’s the main reason why it wasn’t a penalty but a tax.
Where in the world did you got your information from. When the Affordable Care Act was first passed and signed into law in 2010, there was indeed an individual mandate or pay a fine to the IRS for failing to get some form of coverage, even if it’s the basic form of coverage.
https://www.kff.org/health-policy-101-the-affordable-care-act/?entry=table-of-contents-how-has-the-aca-changed-since-it-was-first-passed
It was only in 2019, when the provision… well… mandating an individual mandate was repealed by an act of Congress when Trump and the rest of the Republican Party couldn’t repeal the ACA in its entirety when Senator John McCain blocked the effort back in 2017.
https://www.npr.org/2017/07/27/539907467/senate-careens-toward-high-drama-midnight-health-care-vote
Unconstitutional Obamacare has skewed healthcare just as communist intervention in California has skewed the homeowners insurance industry.
There is only one fix to health insurance and healthcare costs. It is quite simple, and nothing else will work.
Get government entirely out of Healthcare and Health insurance.
Eliminate the deductibility of Health insurance and other perqs from wages,
Basically restore free markets.
There is no instance in all of history of a price control actually working.
Either price controls result in fixed prices and interminable delays and constrianed supply, or they result in exploding prices.
Or some other horrible outcome.
Free markets ALWAYS drive real costs DOWN over the long run.
This is literally a requirement for the economic growth that comes over the long run from free markets.
Not only MUST a free market drive prices down to grow, but if money supply is fixed, rather than expanding, then a free market will ALSO drive nominal (prices not inflation adjusted) down of course if money supply is fixed inflation is impossible.
EXACTLY!! Thanks you for your common sense comment. It is ALL that needs to be said about this subject, and many others….like student loans. GET THE GOVERNMENT OUT
And yet the lying Obama promised us it wouldn’t cost us 1 thin dime more, and that we would save $2500. a family. He lied, people died, and the Obamaites handed out money to Ukraine and illegals. THAT is how much they hate the citizens of America.
This blatant disregard of clear case law in an effort to get Trump is the very example of Prosecutorial malfeasance. It is the reason Prosecutorial and Judicial immunity must be eliminated!
Jill Biden Prepares For Final Week As President
One highly placed source within the Biden administration said Jill would do her best to tie up any loose ends before leaving office on January 20th. “She’s still got a few important meetings left,” the insider said. “She’ll be issuing some pardons to some of the most evil people in human history, sending another $50 billion or so to Ukraine, and if she can get around to it by the weekend, she’d really like to finally get World War III kicked off. It’ll be a busy week, but these last few attempts to bankrupt and destroy America won’t just get done by themselves.”
At publishing time, White House staff also revealed that the last week of Jill’s presidency would also include a significant amount of time spent packing up Joe’s toys and clearing out the playroom.
https://babylonbee.com/news/jill-biden-prepares-for-final-week-as-president
“Jill Biden Prepares For Final Week As President”
All Jill Biden has to do to keep Joe happy is make his bedroom look like the Oval Office. Joe won’t know any differently.
“All Jill Biden has to do to keep Joe happy is make his bedroom look like the Oval Office. Joe won’t know any differently.”
And continue to change his diaper several times a day.
Imagine that! Decades later and The First Babysitter is back to doing the same job for the Biden family she was doing when she first bedded The Big Guy.
Old Airborne Dog
I wonder if President Biden will pardon himself with a similar blanket pardon as Hunter’s, for crimes not yet charged over the past decade.
Where in the heck is Secret Service, and a caregiver, for heaven’s sake. We all know President Biden is a fall risk. He could break his hip in the next 6 days, while still President. He’s an elderly man, often confused, and well into the time of life when a caregiver or designated person would be at his elbow to reduce the risk of falls.
Karen S: No–you are the one who is “confused”, proven by your extensive rants just today that only expose the fact that you fall for MAGA media lies. Joe Biden is fine, proven by the multiple speeches he delivered just this week. Please stop serving us the warmed-over slop you got off of MAGA media.
Jonathan: Yet, another hit job on Jack Smith. Will it ever end? You should put all your columns about Smith in a book entitled “Why I hate Jack Smith”.
Strange you would complain about Smith’s alleged “obstruction” when it was DJT who pulled out all the stops to try to keep Smith’s Volume 1 from being released. He even tried to intervene in Judge Cannon’s case after the fact to prevent the release of the report–even after he was dismissed from the Mar-a-Lago docs case. In the end his attempts failed and even Judge Cannon, one of few loyal supporters on the bench, turned on him and decided to release Smith’s report.
Now why did Trump try so hard to keep Smith’s report buried? Simple. It’s because Smith lays out in 170 pages all the evidence about how DJT tried to unlawfully change the results of the 2020 election, including the planned violent assault on the Capitol. The evidence against DJT was overwhelming and why, you admit, would have resulted in DJT’s conviction. DJT didn’t want that evidence to be seen by the American people just before he goes into the WH for the second time– and for the first time in American history as a “convicted felon. DJT didn’t want to govern with two strikes against him.
Despite the fact that Jack Smith was deprived of a trial of DJT over Jan. 6 his report will stand as the official record of how DJT tried to subvert out Democracy to stay in power. While a trial and conviction would have been preferable Smith has performed a valuable public service by exposing some of the crimes of DJT!
Denis: Yet, another hit job on Jonathan Turley. Will it ever end?
“Despite the fact that Jack Smith was deprived of a trial of DJT over Jan. 6 his report will stand as the official record of how DJT tried to subvert out Democracy to stay in power.”
No. It will stand as Jack Smith’s opinion of how he believes DJT tried to subvert democracy. Nothing is proved, nor will it ever be.
Were you sick the day they taught law in law school?
From sweetheart deal to repudiation, special prosecutor cements Biden family corruption for history
“Special Counsel David Weiss’ report was not a manifesto of new disclosures but affirmed the Biden family made millions trading on its name and that Hunter Biden broke the law.”
https://justthenews.com/accountability/political-ethics/sweetheart-deal-repudiation-prosecutor-report-cements-biden-family
Geez! Even Jacka– Smith has publicly acknowledged that he’s got no case, simply a political hit job.
Our forefathers, took extra precautions to make sure we would not be a Democracy.
Article IV, Section 4:
Section 4
“The United States shall guarantee to every State in this Union a Republican Form of Government”
We are also so reminded a young student daily by the Pledge of Allegiance.
“ I pledge allegiance to the flag of the United States of America and to the REPUBLIC for which it stands one nation under God, indivisible with liberty and justice for all.”
Your rants and attacks on Turley show nothing more than your inability to accept, rational thought and reality. Typical MO for a leftist.
Dennis: Sorry, but I had to run to the restroom (water pill), and one of the cats must have sent the comment before I was finished. Anyway, the new stray, Tennessee, is very sweet, so I suspect that she was dropped. The Biden Economy is causing more and more people to abandon their pets. I bathed Tennessee in Dawn, and a day later soaked her in Adams Flea Spray. Then, in the middle of all this, on Friday, I had to send Hemingway to the vet. Good thing, I did. He came back home Monday, and has not much left my side. I had to cancel my firewood order, and my parka order, in case the vet bill was too high. Which it was. But I used some of my Christmas money, and my sister, who sent Hemingway to me, paid part of the bill. Now, four more monthly payments and Hemingway will be paid off. I am afraid that in the future, I may just have to have sick cats euthanized, if it is anything serious. It is not just the money, but the physical difficulty in my caring for them. Hemingway is very sweet, and I can give him his daily pills pretty easily. But he does not seem to like the Royal Canin Cat Food that he now needs. I may have found an alternative by using Dasani bottled water for all the cats, and it is slightly acidic. But, to continue, there are other cats for whom medical care would be impossible. Needless to say, this possibility does not make me happy. This has worried me for several years, and my daughter and I discussed it this weekend. We decided to start trying to find homes for some of the more adoptable cats. After we find homes for the kittens, and get Harley #2 fixed. That is some of the stuff that has been going on, but I am still chugging along.
Dennis: Gee, but I have had a brutal couple of weeks. First, I discovered that I had two sets of kittens in the house. But, I did discover that one of the Harleys was a male. So, he is going to fixed ASAP. Each mother had three kittens, and one set is particularly beautiful. They will have no problems finding home. I have let both mothers continue to care for them, even though one set is more than ready to start eating real food. Then, in the midst of the super cold weather, a 4 month old or so tuxedo kitten showed up on my neighbors doorstep. They brought her to me.