Good morning! It’s Thursday, February 25, 2021. Election Day 2022 is 621 days away. Election Day 2024 is 1,349 days away.
In today’s newsletter: The first-ever WUTP Legal Roundup, brought to you by contributor Anna Salvatore.
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Congressional leaders are divided on the structure of a commission that would investigate the January 6 attack at the Capitol. According to Punchbowl News, House Speaker Nancy Pelosi (D-CA) is proposing an 11-member body, with seven members chosen by the Biden administration and congressional Democrats and four chosen by congressional Republicans. Under Pelosi’s plan, the chair would be one of President Biden’s appointees and they would be the only member with subpoena power.
Senate Minority Leader Mitch McConnell (R-KY) took to the floor on Wednesday to bash Pelosi’s structure, which he called “partisan by design.” Pelosi has repeatedly compared her proposal to the 9/11 Commission, but that commission’s leaders told Politico that the even bipartisan split on their panel was critical to its success. McConnell called for an equal number of Democratic and Republican picks on the new commission, and for both sides to have subpoena power, as they did on the 9/11 Commission. McConnell also called for the commission to not only investigate the January 6 riot, but launch a “broader analysis of toxic political violence across this country.”
The split over a possible commission comes as multiple congressional committees have launched probes into the riot. Security officials gave conflicting accounts and blamed each other during a Senate hearing on Tuesday; at a House hearing on Wednesday, the Architect of the Capitol testified that the costs from the attack will exceed $30 million. The acting chief of the Capitol Police will testify for the first time today before the House Appropriations Committee. According to prepared testimony, she will admit at the hearing that her force was “overwhelmed by thousands of insurrectionists.”
Neera Tanden’s nomination to lead the Office of Management and Budget has stalled. Two Senate committees abruptly postponed votes to advance Tanden’s nomination on Wednesday, further jeopardizing her chances of being confirmed. Sen. Joe Manchin (D-WV) and most moderate Republican senators have announced plans to oppose Tanden due to her history of combative tweets, meaning her confirmation now hinges on Sen. Lisa Murkowski (R-AK), who is undecided. In an awkward twist, Murkowski was the target of one of Tanden’s old tweets; “That’s interesting,” the Alaskan responded when shown the tweet on Wednesday.
Two other controversial Biden nominees appear headed towards confirmation. California Attorney General Xavier Becerra, who has been nominated to be Secretary of Health and Human Services, emerged relatively unscathed after confirmation hearings on Tuesday and Wednesday. “If I was a betting man, I’d bet that you have the votes to get approved,” Sen. Bill Cassidy (R-LA) told Becerra toward the end of the hearing. Republicans pressed Becerra on his qualifications and stance on abortion during the proceedings.
New Mexico Rep. Deb Haaland’s bid to become Interior Secretary also received a boost on Wednesday, when Manchin — the key swing vote in the Senate — announced he would support her. She is expected to receive little (if any) Republican support, due to her calls to end drilling on federal lands managed by the Interior Department. Haaland would be the first Native American to lead Interior; Becerra would be the first Latino secretary at HHS.
Contributed by Anna Salvatore
New York prosecutors will be able to obtain former President Donald Trump’s financial records due to a recent Supreme Court ruling. The decision is a boon for Manhattan District Attorney Cyrus Vance, who has run a wide-ranging investigation into whether Trump’s business dealings violated New York criminal law.
Trump tried several times to stop Vance from subpoenaing his former accountant, first arguing that as president, he was immune from state criminal subpoenas. When the Supreme Court disagreed last July, Trump then claimed that Vance’s subpoenas were too broad and issued in “bad faith” — an argument which the court rejected in a short, unsigned order on Monday.
Vance responded to the order with an even shorter statement, saying only that “the work continues.” According to the New York Times, his team is probing whether Trump and his associates committed insurance, banking, and tax fraud, “among other crimes” such as hush-payments to women during the 2016 presidential campaign.
The Supreme Court also agreed on Monday to add three abortion cases to its docket for next term. The justices will review the legality of the “gag rule,” a policy adopted by Republican presidents to limit funding for health clinics that counsel abortion. Because the Biden administration will likely roll back the gag rule, it’s possible that these cases will be moot (or “no longer hearable”) before the court’s next term begins. The court also declined on Monday to hear a challenge to the mail-in voting rules used by Pennsylvania during the 2020 election.
President Biden is already reviewing candidates for the next available Supreme Court seat. During his presidential campaign, Biden promised to appoint the first Black woman to the court, and his advisers have begun to eye possible replacements for Justice Stephen Breyer, 82, who might retire as soon as this summer.
Many Biden insiders are touting District Court Judge J. Michelle Childs, a 54-year-old South Carolinian who has served as a labor official and member of her state’s workers’ compensation board. Her lack of Ivy League credentials is reportedly seen as a downside by some insiders, while Childs’ supporters argue that the Supreme Court needs more experiential diversity.
Two other contenders are California Supreme Court Justice Leondra Kruger and D.C. District Court Judge Ketanji Brown Jackson, both of whom do have Ivy League degrees. Kruger served as President Obama’s deputy solicitor general; Jackson clerked for Justice Breyer and once served as a public defender. “No current Supreme Court justice has the perspective of having been a public defender,” the Washington Post noted.
New evidence suggests that federal circuit court judges are becoming more partisan. In his latest New York Times column, longtime courts writer Adam Liptak highlighted a study by William & Mary law professors finding a “dramatic and statistically significant surge” in judges’ partisanship in one specific situation.
Circuit judges typically hear cases in three-person panels. In a particularly controversial case, though, the other judges on the circuit might vote to review the panel decision, meaning that all the active circuit members sit together and make a final decision in the case. This somewhat awkward practice in which colleagues overturn colleagues’ opinions is known as en banc review.
Though en banc decisions are rare, Professors Neal Devins and Alli Orr Larsen argue that they deserve attention because they often involve high-profile issues. After studying 954 of these decisions over the past five-and-a-half decades, the professors found a significant “Trump-era uptick” in partisan splits, with a record level of cases in which judges appointed by Democrats voted together against judges appointed by Republicans.
President Biden ended his predecessor’s ban on legal immigration to the U.S. on Wednesday. The ban “does not advance the interests of the United States,” Biden said in a proclamation reopening the country to new green card applications. The move comes amid a brewing crisis for Biden at the border, as the number of migrant children coming into the country has surged while officials scramble to find facilities to house them.
Biden’s administration opened its first migrant child shelter earlier this week, after similar facilities received widespread criticism during the Trump administration. According to Axios, “more than 700 children who crossed from Mexico into the United States without their parents were in Border Patrol custody as of Sunday,” including some who had been held longer than the 72-hour limit set by a 1997 court agreement.
All times Eastern.
President Joe Biden and Vice President Kamala Harris will receive the President’s Daily Brief at 9:50 a.m. They will have lunch together at 12:30 p.m. and then receive a briefing at 1:45 p.m. on “the COVID-19 response and the state of vaccinations.” At 2:30 p.m., they will participate in an event “commemorating the 50 millionth COVID-19 vaccine shot.” At 4:30 p.m., Biden will hold an event with governors as part of the National Governors Association’s Winter Meeting.
Earlier in the day, at 9 a.m., Harris will visit a Washington, D.C., pharmacy that is participating in the Federal Retail Pharmacy Program, which is distributing COVID-19 vaccines to pharmacies across the country.
White House Press Secretary Jen Psaki will hold a press briefing at 12 p.m.
The Senate will convene at 11 a.m. Following Leader remarks, the chamber will hold “morning business,” when senators are permitted to speak for up to 10 minutes each. At 12 p.m., the Senate will resume consideration of the nomination of former Michigan Gov. Jennifer Granholm to be Secretary of Energy. There will be 10 minutes of debate, equally divided between each party, and then a vote on her confirmation.
At 1:30 p.m., the Senate will hold a cloture vote to advance the nomination of Connecticut Education Commissioner Miguel Cardona to be Secretary of Education.
The House will convene at 10 a.m. for “morning hour,” when 15 representatives from each party are able to speak for one minute each. At 12 p.m., the chamber will move to legislative business, holding 90 minutes of equally divided debate on H.R. 5, the Equality Act. The chamber will then vote on the legislation, which would expand the Civil Rights Act of 1964 and other laws to expand anti-discrimination protections for sexual orientation and gender identity.
The chamber will then begin consideration of H.R. 803, the Protecting America's Wilderness and Public Lands Act. The House will hold one hour of debate divided between the two parties on the bill and consider 29 amendments.
The Supreme Court may announce opinions at 10 a.m.
The Senate Finance Committee will hold a hearing at 10 a.m. to consider the nomination of House Democratic aide Katherine Tai to be U.S. Trade Representative.
The Senate Health, Education, Labor, and Pensions Committee will hold a hearing at 10 a.m. to consider the nominations of Vivek Murthy to return to his Obama-era role as Surgeon General and Rachel Levine, the secretary of the Pennsylvania Department of Health, to be Assistant Secretary of Health and Human Services.
The House Appropriations Committee will hold a hearing at 10 a.m. on the security failures during the January 6 attack at the U.S. Capitol. Acting House Sergeant at Arms Timothy Blodgett and Acting Capitol Police Chief Yogananda Pittman will testify.
The House Financial Services Subcommittee on National Security, International Development, and Monetary Policy will hold a hearing at 10 a.m. to examine “domestic terrorist financing in the aftermath of the insurrection.” Lecia Brooks, the executive director of the Southern Poverty Law Center, will be one of the witnesses.
The Senate Budget Committee will hold a hearing at 10:15 a.m. to examine wages at large corporations. Costco CEO Craig Jelinek will testify, along with a Walmart worker from Maryland and a McDonald’s worker from Missouri.
The House Administration Committee will hold a hearing at 4 p.m. on “strengthening American democracy.” 2018 Georgia gubernatorial nominee Stacey Abrams will be among the witnesses.
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