Merrick Garland Brought AZ Sen Prez Karen Fann A Present, It Is This 'Fraudit' Subpoena!
It's FIND OUT Friday.
The bill for the Arizona fraudit is finally coming due. The recount (not an actual recount!) of the 2020 presidential ballots cost about $6 million, much of it funded by Trump supporters hoping to claw back Joe Biden's electoral votes and falsely claim that Trump won the state. Since then, taxpayers have forked over another $5 million for expenses associated with this public act of onanism, including half a million dollars in legal fees and $3.7 million to replace the voting machines damaged by letting the Cyber Ninjas rub their nasty bits all over them.
Remember the Cyber Ninjas? That was the team of "auditors" hired by Arizona Senate President Karen Fann and her colleague Kelly Townsend to "prove" Trump actually won the state by aiming UV lights at Maricopa County's ballots to figure out which ones were Chinese knockoffs made of bamboo. The team had zero election auditing experience, but chief ninja Doug Logan had already proved his bona fides by appearing in a film about the 2020 election called "Deep Rig," so it was perhaps unsurprising that his team compiled lists of voters with the same last name, first initial, and birth year, then breathlessly announced they'd caught J. Smith (or some such) voting more than once. Wasn't 2021 the best?
But it's not over yet, because Uncle Merrick just entered the chat! And he brought presents.
The Arizona Mirror reports that the FBI just dropped subpoenas on Fann and Townsend for records related to their efforts to ratfuck the 2020 presidential election in Arizona in coordination with the Trump campaign.
"President Fann received a FOIA in the form of a subpoena by the FBI as part of the Biden Administration's political theatrics as they look into 'January 6,'" Kim Quintero, director of communications for Arizona Senate Republicans, told the Arizona Mirror. "Nonetheless, President Fann is fully cooperating in releasing whatever emails and text messages they are requesting."
What the hell is a "FOIA in the form of a subpoena"? And in what universe is cooperation with a grand jury subpoena voluntary?
Watchdog group American Oversight, lacking subpoena power, has been FOIA-ing the state Senate for a year to get information on this very topic. So we already know quite a bit about Fann's coordination with the Trump campaign, including extensive contacts with Rudy Giuliani.
“We have to show some credible evidence for ‘fraud’ before the courts or anyone else can do anything," she emailed a constituent on November 28, 2020. "I have asked the Trump legal team MANY times to please bring us their proof of fraud so we may act on it. To date they have not provided any proof.”
No actual proof. Got it!
A month later, in response to an email rebuking her for not supporting Trump, she wrote, "I have been in numerous conversations with Rudy Giuliani over the past weeks trying to get this done. I have the full support of him and a personal call from President Trump thanking us for pushing to prove any fraud."
Yes, we are aware of the Trump campaign's role in corralling these slates of cosplay electors. But thanks for confirming it in writing, brainiac.
In the past two weeks, the Justice Department has subpoenaed dozens of figures associated with the fake electors scheme in Arizona, Georgia, Nevada, and New Mexico. Arizona GOP chair Kelli Ward and her husband got those grand jury love notes, as well as state Senator Mark Finchem, who coordinated with Giuliani as well as Rep. Mo Brooks, whose liaison characterized him as "leading the charge on the House side to object to the Electoral College certification in Joint Session on January 6th."
It seems pretty clear that the DOJ is centering its investigation on the scheme to substitute fraudulent electoral certificates in an effort to overturn Biden's victory. Which may sound like taking out Al Capone for tax evasion. But, at the end of the day, they did get Al Capone so ... we'll take it!
[Arizona Mirror / American Oversight / Arizona Republic]
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Justice Ketanji Brown Jackson Takes Oath As Supreme Court Throws Another Tire On The Dumpster Fire
God bless.
"In the midst of death, life persists. In the midst of untruth, truth persists. In the midst of darkness, light persists." — Mahatma Gandhi, 1931
Almost a century later, we are in the midst of a lot of fuckin' darkness, with much of it coming from the Supreme Court. In just the past week, six robed lunatics with life tenure have stolen women's right to bodily autonomy, overruled Americans' expressed desire to prevent their neighbors from walking around with murder sticks strapped to their hips, and gutted the EPA's ability to regulate carbon emissions to mitigate the effects of the boiling cauldron we've turned the planet into for our children. And for next term, they're taking up a case designed to let gerrymandered state legislators seize the ballots and cast electoral votes without regard for the will of the citizens.
It's not good.
And yet, in the midst of so much death and untruth and darkness, light does persist. Today Justice Ketanji Brown Jackson took the oath of office at the Supreme Court. Justice Jackson, the first Black female justice on the nation's highest court, and only the third Black justice ever, has been holding it together her whole life. After graduating from public school in Miami, she attended Harvard College and Harvard Law, then clerked for three federal judges, including Justice Stephen Breyer, whom she replaces today. She's been a federal public defender and an advocate for sentencing reform as vice chair of the US Sentencing Commission. And she's been a federal district and circuit court judge in DC, before being elevated to the Supreme Court.
This is an incredible woman whose qualifications are unparalleled and who held it together with total poise through those absolutely filthy confirmation hearings when GOP Senators Josh Hawley, Ted Cruz, and the rest of those diabolical goons pretended that she was some kind of friend to child molesters.
While Judge Jackson will not change the balance of the court, she is 51 years old, and she will be there when Justices Clarence Thomas and Samuel Alito are gone. And perhaps more importantly, representation matters.
President Joe Biden promised to nominate a Black woman to the court because he understands that the lived experience of judges informs their decision-making. The end of Roe is a horrible tragedy, but Justice Jackson and Justice Amy Coney Barrett (yes, her, too), who have actually given birth, fundamentally understand what's at stake when you force a women to carry a dying fetus to term in a way that their male colleagues cannot begin to imagine. Moreover, having someone in the room for whom racial discrimination is not simply a theoretical construct matters as the six conservative justices gear up to gut what's left of the Voting Rights Act.
Very bad things are coming in this country. But Justice Ketanji Brown Jackson is a point of light who will dedicate the rest of her life to protecting our rights. Today she put out a statement:
With a full heart, I accept the solemn responsibility of supporting and defending the Constitution of the United States and administering justice without fear or favor, so help me God. I am truly grateful to be part of the promise of our great Nation. I extend my sincerest thanks to all of my new colleagues for their warm and gracious welcome. I am also especially grateful for the time and attention given to me by the Chief Justice and by Justice Breyer. Justice Breyer has been a personal friend and mentor of mine for the past two decades, in addition to being part of today's official act. In the wake of his exemplary service, with the support of my family and friends, and ever mindful of the duty to promote the Rule of Law, I am well-positioned to serve the American people.
And you know she will do it. So let's enjoy this moment of brightness and light and truth as we watch her take the oath.
\u201cNEW: Judge Ketanji Brown Jackson is sworn in as the Supreme Court's 116th justice. She is the first Black woman to serve on the high court https://t.co/M4vORtg6jd\u201d— Bloomberg Equality (@Bloomberg Equality) 1656606485
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Trump White House Counsel Pat Cipollone Gets Jan 6 Subpoena Like A Common John Eastman
Pony up, asshole.
Last night the House January 6 Select Committee finally dropped a subpoena on former White House Counsel Pat Cipollone ordering him to get his ass in a chair and testify under oath right fuckin' now.
Vice Chair Liz Cheney put Cipollone on blast at the conclusion of every hearing, painting him as a cowardly Goofus, unlike his gallant former colleagues who all ponied up to the witness stand and told the truth. If Rich Donoghue and Jeff Rosen and even Bill Barr can testify on live television about what Trump said in that meeting where that weirdo environmental lawyer Jeff Clark tried to get himself appointed acting attorney general, "Patsy Baloney" can sit for a deposition in the Rayburn conference room.
Cassidy Hutchinson's testimony on Tuesday that Cipollone begged her to keep Trump from marching on the Capitol with the mob because they would get "charged with every crime imaginable" made the need for Cipollone to spill the beans even more clear. Particularly in light of her description of Cipollone desperately begging Mark Meadows to get Trump to call off the mob, saying, "Mark, we need to do something more. They're literally calling for the vice president to be fucking hung," only to be told by the chief of staff that "You heard him, Pat. He thinks Mike deserves it. He doesn't think they're doing anything wrong."
If Cipollone could say, "Something needs to be done, or somebody is going to die and this is going to be on your fucking hands" in front of a 25-year-old staffer, he can say it to the committee. And Liz Cheney is finished negotiating behind closed doors while "a person close to Mr. Cipollone, who was not authorized to speak publicly" mumbles excuses about "complicated issues related to executive privilege" in Maggie Haberman's ear.
\u201cAs we heard yesterday, WH counsel Pat Cippollone had significant concerns re. Trump\u2019s Jan 6 activities. It\u2019s time for Mr. Cippollone to testify on the record. Any concerns he has about the institutional interests of his prior office are outweighed by the need for his testimony.\u201d— Rep. Liz Cheney (@Rep. Liz Cheney) 1656496218
In a cover letter to the subpoena, Select Committee Chair Bennie Thompson reminded the former White House Counsel that the committee "reserved the right to request additional testimony from [him] on the record" when Cipollone sat for an un-transcribed interview back in April. Since then, they've been unable to get him to come in voluntarily to say what he knows about "Trump's awareness of and involvement in activities undertaken to subvert the outcome of the 2020 presidential election, including the submission of fake electoral ballots to Congress and the executive branch, the attempted appointment of Jeffrey Clark as acting Attorney General, and efforts to interfere with Congressional certification of the electoral results on January 6, 2021."
It's not clear what's going to happen next. As an officer of the court who is not apparently insane and would like to hang onto his license to practice law, Patsy Baloney is in a different position from Mark Meadows, Trump's comms flack Dan Scavino, and coup-coup for Cocoa Puffs lawyer John Eastman.
The question is whether this is a so-called "friendly subpoena," i.e. one that is issued as part of an agreement with a party who would otherwise be obliged to refuse to testify due to a non-disclosure agreement or, as the case may be, an invocation of privilege. Liz Cheney reading Cipollone the riot act on national television three times in the past month does not suggest that they've reached a deal. But, if indeed it is a friendly subpoena, it's entirely possible that they've hammered out an agreement as to subjects which will be off limits.
Good thing that this committee never leaks, because otherwise we could count on knowing for sure by close of business tomorrow.
HA HA.
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Supreme Court Kills Tribal Sovereignty Too In Case You Thought It Was Just 'Women' And 'Classrooms Of Kids'
What was that about our nation's history and traditions?
The Supreme Court tossed out decades of precedent (again) Wednesday, granting state governments wider authority in prosecuting crimes on Indian reservations than had been allowed under previous court decisions. The decision, written by Brett Kavanaugh, deeply undercut a Supreme Court decision from just two years ago. In that case McGirt v. Oklahoma, Neil Gorsuch believe it or not wrote a very good decision in favor of tribal rights.
As a result, big parts of eastern Oklahoma, including Tulsa, were declared to still be tribal land, where tribal or federal courts had jurisdiction in cases involving Native Americans. Oklahoma state government didn't care for that, and sued to have some of its prosecutorial power returned. Wednesday's decision accomplished that, at the price of undermining tribal sovereignty and tossing out much of established precedent.
ICYMI: Neil Gorsuch Wrote A Really Good Supreme Court Opinion. Wait, Where Are You Going?
As with other SCOTUS decisions this term, Wednesday's decision in Oklahoma v. Castro-Huerta hinged on Donald Trump's addition of one more rightwing jerk to the court. In 2020, Ruth Bader Ginsburg was still around to join the majority in McGirt, but this week, Amy Coney Barrett joined four other rightwing justices to roll back McGirt in a serious way. This time around, Gorsuch wrote a very angry dissent, joined by Justices Elena Kagan, Sonia Sotomayor, and Stephen Breyer.
At issue in this case was a matter that had long been treated as settled law: What power do states have in criminal cases involving non-Indians? (We're going to use that dubious antiquated word more than we usually do, following the usage of the Court and some prominent Native American legal writers. Usage is always evolving, unless you're talking federal courts, right?)
Where We Are and How We Got Here
In cases where a crime is committed on Indian land, the jurisdiction varies on the basis of the identities of those involved: When both the accused and the victim are Indians, tribal or federal courts have authority. If both the offender and the victim are non-Indians, the case is tried in state court. When the accused is an Indian and the victim is non-Indian, the case goes to tribal or federal court. And up until the ruling in Castro-Huerta, the same held for cases where the perpetrator is non-Indian and the victim is Indian. Kavanaugh's decision holds that states will now have "concurrent" jurisdiction and can prosecute non-Native defendants in crimes committed against Native victims on tribal lands.
To be sure, the 2015 case at the heart of the decision is horrible: Victor Castro-Huerta, a non-Native man, was convicted of child neglect after his five-year-old stepdaughter, a member of the Eastern Band of Cherokee, was "found dehydrated, emaciated and covered in lice and excrement, weighing just 19 pounds." The girl is legally blind and has cerebral palsy. The state charged him and convicted him of neglect, and sentenced him to 35 years in prison.
Brett Kavanaugh Dresses Up As Custer
Then, while Castro-Huerta's case was on appeal, the Court handed down its McGirt decision, meaning that the Castro-Huerta case belonged in federal or tribal court. A state court vacated Castro-Huerta's conviction, and he was charged in federal court. He pleaded guilty and accepted a plea agreement with a seven year sentence.
That really appears to have pissed off Brett Kavanaugh, who explained in his decision,
In other words, putting aside parole possibilities, Castro-Huerta in effect received a 28-year reduction of his sentence as a result of McGirt.
Kavanaugh went on to say he believed that happened way too often:
After having their state convictions reversed, some non-Indian criminals have received lighter sentences in plea deals negotiated with the federal government. Others have simply gone free.
So forget all that "precedent" and "our nation's history and traditions" crap the Court has been banging on about lately. This at least partly comes down to Kavanaugh preferring long prison sentences. The state courts are willing to hand down far harsher punishments, and Castro-Huerta really had done something horrible, so too bad for tribal sovereignty.
Claiming that the Court had never taken a "hard look" at the legislation that has so far governed prosecutions in Indian country, Kavanaugh ultimately determined, nah, 200 years of settled law (not settler law, you stop that!) was actually just a big oopsie, and so "the court today holds that Indian country within a state's territory is part of a state, not separate from a state."
Non-Sovereign, Citizenship Questionable
The decision is a major departure from previous understandings of tribal sovereignty, as in it is the exact opposite, and as The New Republic notes, that's exactly what Oklahoma was after.
To get around McGirt, Oklahoma took aim at the root of tribal sovereignty itself. The state argued that it has concurrent jurisdiction to prosecute most crimes in Indian country, meaning that it could do so if the federal government could not or would not. Oklahoma’s challenge was that the practice and policy of the last two centuries pointed in the other direction. In 1832, the court ruled in Worcester v. Georgia that the state of Georgia could not exercise jurisdiction within Cherokee lands because the Cherokee Nation was a separate sovereign.
Other court rulings and laws passed by Congress reaffirmed the principle of tribal sovereignty in criminal cases involving Native Americans, as Gorsuch points out in his dissent, so that
[In] time, Worcester came to be recognized as one of this Court’s finer hours. The decision established a foundational rule that would persist for over 200 years: Native American tribes retain their sovereignty unless and until Congress ordains otherwise. Worcester proved that, even in the "courts of the conqueror," the rule of law meant something.
Kavanaugh's decision threw most of that in the garbage, contending that for two centuries, everyone had it wrong, and that since reservations fall within state boundaries, state law applies on them unless federal statutes specifically say otherwise. States, Kavanaugh wrote, "do not need a permission slip from Congress to exercise their sovereign authority." And now that's the law of the land, tough shit, he likes beer.
Neil Gorsuch, Surprisingly Right Again
In his dissent (starting on page 29 of the SCOTUS decision PDF) Gorsuch decried the majority opinion, underlining what its betrayal of the principle established in Worchester:
Where this Court once stood firm, today it wilts. After the Cherokee’s exile to what became Oklahoma, the federal government promised the Tribe that it would remain forever free from interference by state authorities. Only the Tribe or the federal government could punish crimes by or against tribal members on tribal lands. At various points in its history, Oklahoma has chafed at this limitation. Now, the State seeks to claim for itself the power to try crimes by non-Indians against tribal members within the Cherokee Reservation. Where our predecessors refused to participate in one State’s unlawful power grab at the expense of the Cherokee, today’s Court accedes to another’s.
The Court's assertion of state power on reservations, Gorsuch wrote, "comes as if by oracle, without any sense of the history recounted above and unattached to any colorable legal authority," and is shot through with "astonishing errors." (We wonder if he will take note for future! Nah.) Ultimately, he said, the Castro-Huerta decision belongs in the "anticanon" of terrible, eventually abandoned decisions like Dred Scott and Plessy v. Ferguson.
'An Act of Conquest'
Native American legal scholars are astonished by the decision. NYU Law prof Maggie Blackhawk said on Twitter that the Court had gone against "hundreds of years of congressional action, against solid SCOTUS precedent, and hundreds of years of history," and that the Court had effectively "become a superlegislature. Precedent, statutes, separation of powers, reason, the rule of law, these things all mean nothing."
Elizabeth Hidalgo Reese, of Stanford Law, called Kavanaugh's decision "an act of conquest. Full stop." It's such an open power grab that she could barely stand to repeat the core betrayal of norms the decision represents.
The right and power of tribes to rule themselves is being dismissed in favor of state power.
Tribes are…I can’t even write it…part of states.
Hidalgo Reese followed that with a brief explanation of why this is important:
For those wondering, “Why is it bad that states can prosecute too?”
Three answers:
1- States/Tribes have a long history of animosity. Fair treatment isn’t a fair assumption.
2- Tribes want to make different laws for their land than states.
3- Many resources are a zero sum game. [...]
4- The feds & states can now blow off responsibility while scapegoat e/o for not prioritizing Indian Country (a difficult and expensive area to police and prosecute).
5- It'll be harder/complicated for tribes to make the case they need more authority to Congress (too many sovereigns in the kitchen already, why would adding another one help?).
There's one potentially bright spot in all this, as Dr. Blackhawk notes: Congress could reverse this very easily with a single brief law. The New Republic explains further: All that would be needed is
a single-sentence law that explicitly blocks concurrent jurisdiction. (Kavanaugh mocked Gorsuch for writing that sentence in the dissent but did not dispute it.)
But that needs to happen soon, before the Court decides to erode tribal sovereignty any further in upcoming cases.
[Oklahoma v. Castro-Huerta / NYT / New Republic / Maggie Blackhawk on Twitter / Elizabeth Hidalgo Reese on Twitter]
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