Jennifer Rubin salutes the DC Appellate panel, gives some pertinent excerpts from their recent decision denying Trump’s “privilege” appeal, and lays out how the decision should be used in the ongoing battle to preserve our strained democracy in this largely lawless power grab by American zealots, backed by an army of angry white Christians.

Opinion: Distinguished persons of the week: The D.C. Circuit shuts down Trump

By Jennifer Rubin Columnist |Yesterday at 7:45 a.m. EST

The Supreme Court may have lost its luster due to its blatant partisanship, but lower federal court judges are consistently upholding the Constitution and not allowing Jan. 6 to go down the memory hole.

The three-judge U.S. Court of Appeals for the D.C. Circuit on Thursday issued a unanimous opinion shutting down former president Donald Trump’s ludicrous claim that he can assert executive privilege over White House documents in contravention of the current president’s waiver of privilege claims.

“On the record before us, former President Trump has provided no basis for this court to override President Biden’s judgment and the agreement and accommodations worked out between the Political Branches over these documents,” the court held. “Both Branches agree that there is a unique legislative need for these documents and that they are directly relevant to the [House select committee’s] inquiry into an attack on the Legislative Branch and its constitutional role in the peaceful transfer of power.”Advertisement

Rarely is the court’s recitation of the facts as powerful as this one, given the MAGA crowd’s ongoing gaslighting:

On November 3, 2020, Americans elected Joe Biden as President, giving him 306 electoral college votes. Then President Trump, though, refused to concede, claiming that the election was “rigged” and characterized by “tremendous voter fraud and irregularities[.]” … Over the next several weeks, President Trump and his allies filed a series of lawsuits challenging the results of the election. The courts rejected every one of the substantive claims of voter fraud that was raised. … The events of January 6, 2021 marked the most significant assault on the Capitol since the War of 1812. The building was desecrated, blood was shed, and several individuals lost their lives.

In case anyone had forgotten, the court offers a reminder that any claim of a stolen election was and remains a lie. This was not a “normal tourist visit.”

The court reiterated that the current president waived executive privilege, writing, “In this case, President Biden, as the head of the executive branch, has specifically found that Congress has demonstrated a compelling need for these very documents and that disclosure is in the best interests of the Nation. Congress, which has engaged in a course of negotiation and accommodation with the President over these documents, agrees.”

The court then reaffirmed that the current president holds the privilege:

“To start, as the incumbent, President Biden is the principal holder and keeper of executive privilege, and he speaks authoritatively for the interests of the executive branch,” the court held. “Under our Constitution, we have one President at a time.”

The court also emphasized the legitimacy of Congress’s inquiry:

The very essence of the Article I power is legislating, and so there would seem to be few, if any, more imperative interests squarely within Congress’s wheelhouse than ensuring the safe and uninterrupted conduct of its constitutionally assigned business. Here, the House of Representatives is investigating the single most deadly attack on the Capitol by domestic forces in the history of the United States. Lives were lost; blood was shed; portions of the Capitol building were badly damaged; and the lives of members of the House and Senate, as well as aides, staffers, and others who were working in the building, were endangered. They were forced to flee, preventing the legislators from completing their constitutional duties until the next day.

Proceeding through the test the Supreme Court laid out in Trump v. Mazars, in which the high court ruled against Trump’s bogus claim of absolute privilege while he was in office, the appeals court concluded, “At the end of the day, the Mazars test is of no help to former President Trump’s effort to demonstrate a likelihood of success in invalidating the January 6 Committee’s request.”

With some rhetorical flourish, the court wrapped up with this:

Benjamin Franklin said, at the founding, that we have “[a] Republic”—“if [we] can keep it.” The events of January 6 exposed the fragility of those democratic institutions and traditions that we had perhaps come to take for granted. In response, the President of the United States and Congress have each made the judgment that access to this subset of presidential communication records is necessary to address a matter of great constitutional moment for the Republic. Former President Trump has given this court no legal reason to cast aside President Biden’s assessment of the executive branch interests at stake, or to create a separation of powers conflict that the Political Branches have avoided.

The court’s opinion is so tightly reasoned that it is hard to imagine even this Supreme Court riding to Trump’s rescue. (Indeed, it did not do so in Mazars.) The appeals court performed three essential functions in rendering its decision.

First, it demolished the “big lie” of a stolen election and restated the seriousness of the violent insurrection that disgruntled Republicans launched. Every member of Congress should read the opinion and prepare to explain how, if at all, the court’s recitation of facts goes astray. Lacking any facts to refute the court, Republicans’ refusal to accept the 2020 electoral votes and their dismissal of the insurrection should be seen for what they are: Partisan bad faith in violation of their oaths.

Second, it obliterated the basis for the assertion of executive privilege from Trump cronies Stephen K. Bannon and Mark Meadows. They are looking at conviction for contempt of Congress, as will other witnesses attempting to cover for Trump. (Rep. Liz Cheney of Wyoming, one of two Republicans on the House select committee, explained in a series of tweets that these stunts have not slowed the committee, which “has already met with nearly 300 witnesses … [and is] conducting multiple depositions and interviews every week.”)

Third, in so thoroughly shredding Trump’s bogus legal arguments, the court made clear that Trump’s entire legal strategy is to stall and run out the clock. The facts and the law are not on his side, and the court has refused to help him delay the process by reviewing every document. In this case, the wheels of justice turn swiftly.

For its clear-eyed opinion and reaffirmation of the rule of law, we can say to the D.C. panel, well done.

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If you are devoted to American democracy and the ongoing project to form a more perfect nation, and your hair is not on fire, watching the feeble parliamentarian efforts to fight an opposition party united behind a ruthless, determined, deep-pocketed group of reactionaries, fronted by a deranged narcissist, then what can I say? Barton Gellman published a long article in the Atlantic last week entitled “January 6 was practice” and retitled Trump’s Next Coup Has Already Begun (I can’t give you the link, I’m out of free articles at the Atlantic, here’s the Atlantic’s summary of the article with a link) detailing exactly why Biden’s hair, Merrick Garland’s hair, everyone’s hair should be on fire. It is well worth reading and I have pulled three sections for you (below) to whet your appetite for your hair bursting into flames.

The phrase “hair on fire” became popular as an image of someone with an urgent warning of a catastrophe (that soon happened) that was being ignored. Twenty years ago, in the months before Saudi religious fanatics brought down the World Trade Center and put a hole in the Pentagon in a spectacular act of terrifying mass murder, there were high national security officials like Richard Clarke running around with their “hair on fire”. Clarke was trying to get the attention of the vacationing leader of a then highly unpopular administration and brought bulletins with titles like “Bin Laden Determined to Strike in US” and Al Queda plans to fly Planes into US buildings to the president in the weeks before the attack. Bush and Cheney paid no attention to these warnings, though their party was ready with the voluminous Patriot Act within days of the attack and Bush’s popularity soared starting on September 12th. The Project for a New American Century began in earnest, something its reactionary architects predicted would take decades, absent a galvanizing Pearl Harbor type attack. Then, bingo, September 11, and the rest is history. A history we still don’t have important details of, like who were the wealthy investors who made a killing on the stock market with strategic buys and sells the day before September 11.

Almost a year ago a president who lost the election by a wide margin tried everything in his power (and much beyond his legal power) to change the outcome of the election he lost. His last, desperate move was to incite a riot to Stop the Steal, the fraudulent claim he’d been pushing for months, starting well before the election. In the aftermath of the riot he incited (and note, there was no permit for the march that swarmed into the Capitol — a permit would have meant massive police presence along the route), Trump was immediately condemned, by leaders of both parties. His top enablers, Mitch McConnell, Kevin McCarthy and Lindsey Graham all spoke forcefully in the days after the MAGA riot stopped a joint session of Congress in its constitutional duties related to the peaceful transfer of power. Trump would quickly bring virtually all of them in line. McConnell, who gave Trump his greatest, indelible success during his term by ramming home hundreds of Federalist Society lifetime judicial appointments, is now hated by Trump for not falling 100% back in line like the rest of his cult members. They are planning on an improved version of what narrowly failed the last time.

Here are three sections from Gellman’s important article. At the risk of burying the lede (which you can skip to) his hair on fire conclusion is saved for last. The headings are my own, not Gellman’s.

A bullshit legal theory of Scalia-like brilliance

Elections are complicated, and election administrators have to make hundreds of choices about election machinery and procedures—the time,place, and manner of voting or counting or canvassing—that the not specifically authorized. A judge or county administrator may hold polls open for an extra hour to make up for a power outage that temporarily halts voting. Precinct workers may exercise their discretion to help voters“cure” technical errors on their ballots. A judge may rule that the state
constitution limits or overrides a provision of state election law.

Four justices—Alito, Neil Gorsuch, Brett Kavanaugh, and Clarence Thomas—have already signaled support for a doctrine that disallows any such deviation from the election rules passed by a state legislature. It is an absolutist reading of legislative control over the “manner” of appointing electors under Article II of the U.S. Constitution. Justice Amy Coney Barrett, Trump’s last appointee, has never opined on the issue.

The question could arise, and Barrett’s vote could become decisive, if Trump again asks a Republican-controlled legislature to set aside a Democratic victory at the polls. Any such legislature would be able to point to multiple actions during the election that it had not specifically authorized. To repeat,
that is the norm for how elections are carried out today. Discretionary procedures are baked into the cake. A Supreme Court friendly to the doctrine of independent state legislatures would have a range of remedies available to it; the justices might, for instance, simply disqualify the portion of the votes
that were cast through “unauthorized” procedures. But one of those remedies would be the nuclear option: throwing out the vote altogether and allowing the state legislature to appoint electors of its choosing.

Trump is not relying on the clown-car legal team that lost nearly every court case last time. The independent-state-legislature doctrine has a Federalist Society imprimatur and attorneys from top-tier firms like BakerHostetler. A dark-money voter-suppression group that calls itself the Honest Elections
Project has already featured the argument in an amicus brief.

How close the mob came to hanging Mike Pence

Less than an hour earlier, at 1:10 p.m., Trump had finished speaking and
directed the crowd toward the Capitol. The first rioters breached the building
at 2:11 p.m. through a window they shattered with a length of lumber and a
stolen police shield. About one minute later, Fairlamb burst through the
Senate Wing Door brandishing the baton, a teeming mob behind him.
(Fairlamb pleaded guilty to assaulting an officer and other charges.)

Another minute passed, and then without warning, at 2:13, a Secret Service
detail pulled Pence away from the Senate podium, hustling him out through a
side door and down a short stretch of hallway.

Pause for a moment to consider the choreography. Hundreds of angry men
and women are swarming through the halls of the Capitol. They are fresh
from victory in hand-to-hand combat with an outnumbered force of
Metropolitan and Capitol Police. Many have knives or bear spray or baseball
bats or improvised cudgels. A few have thought to carry zip-tie wrist
restraints. Some are shouting “Hang Mike Pence!” Others call out hated
Democrats by name.

At 2:26, the Secret Service agents told Pence again that he had to move. “The third time they came in,”
the vice president’s chief of staff told me, “it wasn’t really a choice.”

These hundreds of rioters are fanning out, intent on finding another group of
roughly comparable size: 100 senators and 435 members of the House, in
addition to the vice president. How long can the one group roam freely
without meeting the other? Nothing short of stunning good luck, with an
allowance for determined police and sound evacuation plans, prevented a
direct encounter.

The vice president reached Room S-214, his ceremonial Senate office, at
about 2:14 p.m. No sooner had his entourage closed the door, which is made
of opaque white glass, than the leading edge of the mob reached a marble
landing 100 feet away. Had the rioters arrived half a minute earlier, they could
not have failed to spot the vice president and his escorts speed-walking out of
the Senate chamber.

Ten minutes later, at 2:24, Trump egged on the hunt. “Mike Pence didn’t
have the courage to do what should have been done to protect our Country
and our Constitution,” he tweeted.

Two minutes after that, at 2:26, the Secret Service agents told Pence again
what they had already said twice before: He had to move.

“The third time they came in, it wasn’t really a choice,” Marc Short, the vice
president’s chief of staff, told me. “It was ‘We cannot protect you here,
because all that we have between us is a glass door.’ ” When Pence refused to
leave the Capitol, the agents guided him down a staircase to a shelter under
the visitors’ center.

President Biden’s plan to protect democracy in 2022 and 2024

THERE IS A clear and present danger that American democracy will not
withstand the destructive forces that are now converging upon it. Our two-
party system has only one party left that is willing to lose an election. The
other is willing to win at the cost of breaking things that a democracy cannot
live without.

Democracies have fallen before under stresses like these, when the people
who might have defended them were transfixed by disbelief. If ours is to
stand, its defenders have to rouse themselves.

Joe Biden looked as though he might do that on the afternoon of July 13. He
traveled to the National Constitution Center in Philadelphia, which features
on its facade an immense reproduction of the Preamble in 18th-century
script, to deliver what was billed as a major address on democracy.

What followed was incongruous. Biden began well enough, laying out how
the core problem of voting rights had changed. It was “no longer just about
who gets to vote” but “who gets to count the vote.” There were “partisan
actors” seizing power from independent election authorities. “To me, this is
simple: This is election subversion,” he said. “They want the ability to reject
the final count and ignore the will of the people if their preferred candidate
loses.”

He described the means by which the next election might be stolen, though
vaguely: “You vote for certain electors to vote for somebody for president”
and then a “state legislator comes along … and they say, ‘No, we don’t like
those electors. We’re going to appoint other electors who are going to vote
for the other guy or other woman.’ ”

And he laid down a strong marker as he reached his rhetorical peak.

“We’re facing the most significant test of our democracy since the Civil War.
That’s not hyperbole,” he said. “I’m not saying this to alarm you. I’m saying
this because you should be alarmed.”

But then, having looked directly toward the threat on the horizon, Biden
seemed to turn away, as if he doubted the evidence before his eyes. There
was no appreciable call to action, save for the bare words themselves: “We’ve
got to act.” Biden’s list of remedies was short and grossly incommensurate
with the challenge. He expressed support for two bills—the For the People
Act and the John Lewis Voting Rights Advancement Act—that were dead on
arrival in the Senate because Democrats had no answer to the Republican
filibuster. He said the attorney general would double the Department of
Justice staff devoted to voting-rights enforcement. Civil-rights groups would
“stay vigilant.” Vice President Kamala Harris would lead “an all-out effort to
educate voters about the changing laws, register them to vote, and then get
the vote out.”

And then he mentioned one last plan that proved he did not accept the
nature of the threat: “We will be asking my Republican friends—in Congress,
in states, in cities, in counties—to stand up, for God’s sake, and help prevent
this concerted effort to undermine our elections and the sacred right to
vote.”

So: enforcement of inadequate laws, wishful thinking about new laws,
vigilance, voter education, and a friendly request that Republicans stand
athwart their own electoral schemes.

Conspicuously missing from Biden’s speech was any mention even of
filibuster reform, without which voting-rights legislation is doomed. Nor was
there any mention of holding Trump and his minions accountable, legally, for
plotting a coup. Patterson, the retired firefighter, was right to say that nobody
has been charged with insurrection; the question is, why not? The Justice
Department and the FBI are chasing down the foot soldiers of January 6, but
there is no public sign that they are building cases against the men and women who sent them. Absent consequences, they will certainly try again. An unpunished plot is practice for the next.

DONALD TRUMP came closer than anyone thought he could to toppling a
free election a year ago. He is preparing in plain view to do it again, and his
position is growing stronger. Republican acolytes have identified the weak
points in our electoral apparatus and are methodically exploiting them. They
have set loose and now are driven by the animus of tens of millions of
aggrieved Trump supporters who are prone to conspiracy thinking, embrace
violence, and reject democratic defeat. Those supporters, Robert Pape’s
“committed insurrectionists,” are armed and single-minded and will know
what to do the next time Trump calls upon them to act.

Democracy will be on trial in 2024. A strong and clear-eyed president, faced
with such a test, would devote his presidency to meeting it. Biden knows
better than I do what it looks like when a president fully marshals his power
and resources to face a challenge. It doesn’t look like this.

The midterms, marked by gerrymandering, will more than likely tighten the
GOP’s grip on the legislatures in swing states. The Supreme Court may be
ready to give those legislatures near-absolute control over the choice of
presidential electors. And if Republicans take back the House and Senate, as
oddsmakers seem to believe they will, the GOP will be firmly in charge of
counting the electoral votes.

Against Biden or another Democratic nominee, Donald Trump may be
capable of winning a fair election in 2024. He does not intend to take that
chance.

This article appears in the January/February 2022 print edition with the headline “January 6 Was Practice.”
Barton Gellman is a staff writer at The Atlantic and the author of Dark Mirror: Edward
Snowden and the American Surveillance State and Angler: The Cheney Vice Presidency.

There are conspiracy theories, often based purely on paranoia about unexplainable vexations and there are actual conspiracies that can be mapped using real data. How did this nation arrive at a place where almost 70% of one of our two major political parties believes that a widely disproved lie (massive Democratic voter fraud, abetted by disloyal Republicans) justifies political violence and the nullification of millions of legally cast ballots?

You can read books like Jane Mayer’s great “Dark Money” and Nancy MacLean’s detailed follow-up, “Democracy in Chains” and emerge with a clear view of how super-wealthy American reactionaries have methodically used their fortunes to shift the cultural debate and the government and its laws toward their goal — unfettered enjoyment of perpetual privilege free from the “coercion” of “majoritarian tyranny.”

They have done this by tireless engineering work, work that resulted in the Supreme Court declaring that spending infinite amounts of “dark money” to influence elections and law enforcement is simply free speech, protected under the First Amendment. After Charles Koch became convinced that their reactionary ideas could never win via the ballot (his brother, as VP candidate on a Libertarian ticket got less than 1% of the vote in the 1980 presidential election) they began engineering alternative influence mechanisms. They created many “think tanks,” endowed university chairs, gave scholarships to promising young right-wing thinkers, deployed armies of lobbyists, used smart, audacious media strategies, funded “grassroots” movements like the Tea Party when the time was right to show that ordinary Americans coast to coast were united in opposition to a tyrant of mixed-race who was possibly not even legitimately entitled to be the president. They used these devices to create “climate change skepticism,” a fever over gun rights, to gin up a host of violent debates to divide a populace that would otherwise be united in opposition to this powerful elite’s larger plan — eternal luxury for unaccountable, unregulated corporate masters of the universe.

One of their most important innovations is an almost forty year-old fraternity that selects true believers for the highest lifetime judicial positions in the nation. These frat brothers (and some sisters) are then in position to have the final unappealable word on what is constitutional and what is illegal in the USA. Unlimited expenditures of secretly donated money becomes protected free speech. Five of their frat brothers have the power to overturn a 98-0 Senate vote, and the enthusiastic support of a conservative Republican president, with a few pages of bloodless legalistic right-wing fantasy, as John Roberts did in his infamous Shelby County v. Holder decision that ended federal enforcement of minority voting rights. Since we now have a half-black president, he reasoned, we live in a post-racial society and there is no longer need to enforce the Voting Rights Act of 1965. 5-4, case closed. If you read the decision, the dissent had the better of every argument, but, no matter, there is no appeal available once the majority has signed on. We can all see the predictable results of gutting enforcement of a law that successfully evened the electoral playing field after a century of winked-at legal racism at the polls in many states.

The Federalist Society is a quasi-religious right-wing fraternity that trains young law students and lawyers in its conservative doctrine and grooms them to become solid, right-wing judges. It provides members with fellowship, support, a network of powerful mentors and a career path to power for the most loyal and ambitious among them. Six of its most illustrious members and supporters now compose the 6-3 Trump Court majority.

It is not entirely unfair to call a faith based organization like this a cult, since it demands adherence to a strict set of values — “originalism” (faith to the Constitution without those pesky post Civil War Amendments) the rights of corporate “persons”, the right for everyone to have guns, the right of the religious to discriminate, based on their faith, the rights of the fetus — and rewards that adherence to these values with advancement to lifetime judicial appointments. All three of Trump’s picks were handed to him off a list Leonard Leo and his friends at the Federalist Society drew up, as Trump had promised. Doing that was one of the few promises Trump ever kept in a life of compulsive “transactionalism”.

Here is Senator Sheldon Whitehouse on The Federalist Society: