by Gabe Fleisher
Good morning! It’s Tuesday, June 14, 2022. Election Day 2022 is 147 days away. Election Day 2024 is 875 days away.
Today is Flag Day, the anniversary of the adoption of the American flag — then featuring 13 stripes and a circle of 13 stars in the corner — by the Second Continental Congress in 1774. 🇺🇸
It’s also former President Donald Trump’s 77th birthday. Speaking of Trump...
Does Trump believe the “Big Lie”?
While the first hearing of the House January 6 committee last week focused on that fateful day of the Capitol riot, the second hearing on Monday took viewers back almost two months earlier to November 3, 2020.
November 3 was Election Night, when the presidency first began to slip away from Donald Trump — and when the “big lie” that he won the 2020 election began its migration from the conservative fringes to the highest echelons of the White House.
Drawing on pre-recorded testimony from several insiders, the panel painted a picture of two factions within Trump’s campaign: one led by former New York City mayor Rudy Giulani, who pushed Trump to prematurely declare victory on Election Night, and one made up of almost every other adviser, who urged him to wait for the votes to be counted.
In a deposition, former Trump campaign manager Bill Stepien referred to the latter faction as “Team Normal.” (Stepien had been slated to testify live before the committee, but his wife went into labor Monday morning. The panel instead made repeated use of his taped depositions.)
The panel showed Trump aide after Trump aide dismissing the former president’s claims of election fraud.
“It was far too early to be making any calls like that,” Stepien said of Trump’s declaration of victory on Election Night.
“What they were proposing, I thought, was nuts,” former White House lawyer Eric Hershmann added of the various theories suggested for how the election was stolen.
The real star of Monday’s hearing was former Attorney General Bill Barr, who lambasted the fraud claims at various points as “bullshit,” “idiotic,” “stupid,” “crazy,” and “complete nonsense,” among other epithets.
“The election fraud claims were false. Mr. Trump’s closest advisors knew it. Mr. Trump knew it,” Rep. Zoe Lofgren (D-CA), who helped lead Monday’s hearing, asserted.
But let’s back up for a second. The panel surely established that many of Trump’s advisers knew the claims were false — and told him — but is that enough to prove that he knew it as well?
After all, there were plenty of other voices in Trump’s ear telling him the opposite, and it’s clear which advisers he sided with.
“He thought I was wrong. He told me so,” Stepien recalled of his Election Night discussions with Trump. (Multiple aides recounted that the sole aide whose advice Trump did take, Giuliani, was drunk that night. “The mayor was definitely intoxicated,” former Trump campaign senior adviser Jason Miller said.)
Some commentators say testimony like Stepien’s actually undercut the committee’s case that Trump didn’t believe what he was saying.
“Not sure what Dems accomplished today,” Mick Mulvaney, Trump’s former White House chief of staff who resigned from the administration on January 6, tweeted. “Some interesting sidelights (on, say, fundraising) but they had nothing to show Trump believed he lost. In fact, they showed the exact opposite. They made the case that he probably should have known...but that is different.”
This question of what was inside Trump’s mind is actually a fairly important one. To charge someone with a crime, a prosecutor must be able to show not just criminal activity — but their criminal intent as well, what’s known in legal-speak as their “mens rea.”
Without solid proof that Trump believed what he was saying wasn’t true, it might be difficult to charge him for propagating the “big lie.” (One Trump adviser who was on Team Giulaini, John Eastman, has already begun using that legal defense.)
But there are other commentators who say the narrative the committee laid out on Monday — the reams of advisers who told him the truth — could be enough. Washington Post columnist Greg Sargent noted that in its definition of “knowledge,” criminal law includes someone who shows “willful blindness” to the truth.
“If you close your eyes to the high probability that a fact exists,” former federal prosecutor Barbara McQuade told Sargent, “you can’t use that to evade responsibility.”
And there was also plenty of testimony Monday that might point towards “willful blindness,” like Barr’s statement that Trump “had become detached from reality” and never showed “an indication of interest in what the actual facts were.”
The committee is clearly laying out a criminal roadmap for charging Trump. Among other potential charges that seemed to hang in the air Monday, the lawmakers appeared to be urging the Justice Department to indict Trump for wire fraud, pointing to the $250 million raked in via fundraising emails that falsely described the election as stolen. (“The big lie was also a big rip off,” Lofgren said.)
However, the panel seems divided on whether to make a criminal referral to the DOJ. Rep. Bennie Thompson (D-MS), the committee’s chair, told reporters they wouldn’t on Monday, but Rep. Liz Cheney (R-WY) and other members quickly clarified that a referral was still on the table.
Ultimately, there is one man who will decide whether the panel has enough to press forward with criminal charges: Attorney General Merrick Garland, a famously apolitical former judge who has been hesitant to pursue charges against the former president.
And, yes, Garland has been tuning in: “I will be watching all the hearings,” he told reporters Monday. “I can assure you the January 6 prosecutors are watching all the hearings as well.”
Justices rule on double jeopardy, immigration
By Anna Salvatore, legal contributor
All eyes are on the Supreme Court this month. Though the justices often release their most controversial opinions in June, the coming weeks promise to be even more newsworthy than usual.
The leak of Justice Samuel Alito’s draft opinion in Dobbs v. Mississippi reveals that the conservative majority will likely vote to eliminate abortion as a constitutional right, thereby allowing dozens of Republican states to ban abortion as soon as the opinion is released.
While the justices did not rule in Dobbs on Monday, they did issue important opinions on subjects ranging from the Double Jeopardy Clause to the rights of noncitizens in detention centers.
The first ruling Monday was in the double jeopardy case, Denezpi v. United States. The dispute began when Merle Denezpi, a member of the Navajo Nation, pleaded guilty to the assault and battery of his girlfriend within the Ute Mountain Ute Reservation. This conduct violated two sets of law: tribal and federal. And the Court of Indian Offenses (CFR) got to him first.
Established by the federal government in 1882 to enforce tribal and federal law, the CFR exercised its “unique sovereign authority” to sentence him to about four months in prison. But shortly after Denezpi was released, the federal government prosecuted him for the same conduct and sentenced him to thirty more years in prison.
Denezpi argues that this prosecution violated his constitutional rights, given that the Fifth Amendment’s Double Jeopardy Clause states that “no person shall… be subject for the same offence to be twice put in jeopardy of life or limb.”
In a 5-4 ruling authored by Justice Amy Coney Barrett, the Supreme Court disagreed, holding that the Double Jeopardy Clause allows separate sovereigns to prosecute someone for the same conduct. This “dual-sovereignty exception” means, in other words, that even if a tribal authority and a federal authority both ban sexual assault, the fact that they are different sovereigns mean that their laws also count as different “offences.”
“Because the sovereign source of a law is an inherent and distinctive feature of the law itself,” Barrett wrote, “an offense defined by one sovereign is necessarily a different offense from that of another sovereign.”
Justice Neil Gorsuch criticized the dual-sovereignty doctrine in his dissent, which was joined by Justices Sonia Sotomayor and Elena Kagan. “Taken to its extreme,” he wrote, the doctrine “might allow prosecutors to coordinate an initial trial in one jurisdiction as a dress rehearsal for a second trial in another.” He urged his colleagues to honor the spirit of the Double Jeopardy Clause rather than carve out a technical loophole.
The Supreme Court next ruled in a series of immigration cases, Garland v. Gonzalez and Johnson v. Arteaga-Martinez. Both cases dealt, albeit in slightly different ways, with whether noncitizens are entitled to bond hearings after they spend six months in detention — and both times the Court answered, “No.” (A bond hearing is when a judge decides whether someone should remain imprisoned or can be released while they await trial.)
Writing for an eight-justice majority in Gonzalez, Justice Alito criticized the lower courts for their interpretation of federal immigration law. Citing the Immigration and Nationality Act, he wrote that district courts cannot order federal immigration officials to provide bond hearings for noncitizens, as their order would “interfere with the Government’s efforts” to enforce the INA.
According to SCOTUSblog, the opinion could still pave the way for individual immigrants to secure a bond hearing.
Justice Sotomayor reached a similar conclusion in Arteaga-Martinez. After reviewing a Third Circuit ruling that would compel the government to prove, “by clear and convincing evidence, that the noncitizen poses a risk of flight or danger to the community” after six months of detention, Sotomayor held that this burden of proof is not required by the INA.
This means that U.S. Immigration and Customs Enforcement (ICE) can detain undocumented immigrants for more than six months while they appeal their deportation orders.
The Supreme Court issued two other opinions on Monday:
- In ZF Automotive US, Inc. v. Luxshare, Lt, the justices held unanimously that federal law allows discovery — the evidence-gathering part of a trial — to be used in certain “foreign or international tribunal[s].” However, its ruling clarified that arbitration panels do not count under current federal law.
- In Kemp v. United States, the justices considered a federal law that allows people to reopen their court proceedings based on “mistake, inadvertence, surprise, or neglect.” They held by an 8-1 vote that someone can only bring this claim within a 1-year statute of limitations.
Primaries to watch today
Four states (Maine, Nevada, North Dakota, and South Carolina) will hold their primary elections today — plus there’s a special election in Texas’ 34th congressional district. Here are the races to watch:
In South Carolina, two Republican House members face Trump-backed primary challenges. Rep. Nancy Mace provoked Trump’s ire by voting for the formation of a bipartisan January 6th commission, while Rep. Tom Rice was one of the 10 Republicans who voted for Trump’s second impeachment.
The two incumbents have adopted disparate strategies in their primary fights: Rice has leaned into his brawl with Trump, while Mace has sought to de-emphasize it. Accordingly, polls show Rice — who is running in a more conservative district — locked in a tighter race with his challenger, state Rep. Russell Fry, than Mace is with hers, former state Rep. Katie Arrington.
Rice, a five-term Republican stalwart, is the first Republican impeachment backer to face a Trump-endorsed primary challenger this cycle. In both races, if no candidate wins more than 50% of the vote, the top two contenders will advance to a June 28 runoff.
In Nevada, Trump’s favored Senate candidate, former state Attorney General Adam Laxalt, is facing a surprisingly tough primary battle against Sam Brown, a retired Army captain whose face still shows the scars of an IED blast in Afghanistan.
Laxalt and Brown are battling for the right to take on Democratic Sen. Catherine Cortez-Masto in November, in what promises to be one of the cycle’s most competitive Senate races.
Also in the Silver State, former state Rep. Jim Marchant — who leads a nationwide network of election deniers now running for key offices — is seeking the GOP nod to be secretary of state.
In Texas, Republicans are hoping to pick up a House seat in the 34th district special election. The south Texas seat became vacant when Democrat Filemon Vela Jr. resigned from the House in March to join the lobbying firm Akin Gump.
Today’s race will be a non-partisan blanket primary, with candidates of all parties running together. If no one tops 50%, the top two will move on to an August runoff. The leading candidates are Republican respiratory care practitioner Mayra Flores and Democratic former county commissioner Dan Sanchez.
If Flores bests Sanchez, it will be a meaningful symbol of GOP momentum going into November — especially among Latinos, who make up the vast majority of the formerly Democratic-hold seat. However, it might not matter much for the House majority: whoever wins will have to face voters again in November to notch a full term.
The November race will be run using Texas’ new congressional district lines, in which the 34th has has been redrawn to be much more Democratic territory.
A number you should know
39.7%. That’s where President Biden’s approval rating currently stands, according to the FiveThirtyEight average of recent polls.
That is Biden’s lowest approval rating yet, and it marks the first time he has slipped below 40% in FiveThirtyEight’s tracker.
According to the website, no president has had a lower approval rating at this point in their term since Gerald Ford, whose support stood at 39.3%. Biden has reportedly been frustrated that his polls have dropped even below former President Trump’s, whose approval rating stood at 41.8% at this point in his term.
As Axios notes, in the last four midterm cycles, the president’s approval rating has only dropped between June and November.
What’s going on in government today
All times Eastern. Click on an event’s time to watch it.
— President Biden will travel to Philadelphia to deliver remarks at the AFL-CIO’s national convention (11 am). Representing more than 12 million active and retired workers, the AFL-CIO is the nation’s largest federation of unions. After speaking at the convention, Biden will return to D.C.
— Vice President Harris will convene a roundtable of constitutional law, privacy, and technology experts to discuss the possibility of Roe v. Wade being overturned (2:30 pm).
— The Senate will convene (11 am) and resume consideration of H.R. 3967, the Honoring our Promise to Address Comprehensive Toxics (PACT) Act, which would offer health care access and benefits to veterans exposed to toxic substances during their military service.
Later, the Senate will recess (12:30 pm) for both parties to hold their weekly caucus lunches; after returning (2:15 pm), the chamber might hold votes to advance the Honoring our PACT Act.
— The House will convene (10 am) and likely vote under suspension of the rules on S. 4160, the Supreme Court Police Parity Act. The measure, which passed the Senate unanimously last month, would expand the security protection offered to families of Supreme Court justices, amid a recent attempt to kill Justice Brett Kavanaugh.
The bill had been held up in the House while Democrats considered adding an amendment that would also offer security to the families of Supreme Court clerks; those plans were dashed Monday when Senate Republicans said such an addition would not be approved by the upper chamber.
Later, the House is also set to vote on H.R. 2773, the Recovering America’s Wildlife Act, which would provide states $1.4 billion in funding to support wildlife conservation and recovery.
The chamber is also set to hold two votes under suspension of the rules postponed from yesterday: on H.R. 7211, the Small State and Rural Rescue Act, and on an amended version of S. 516, the Advanced Air Mobility Coordination and Leadership Act.
— Congressional committees will hold hearings on implementing an online sales tax (10 am), preventing pandemic relief fraud (10 am), protecting election workers (10 am), and bipartisan data privacy legislation (10:30 am).
— The Federal Open Market Committee, a group of Federal Reserve officials who oversee key facets of American monetary policy (including setting interest rates), will meet today and tomorrow.
In a bid to slow inflation, the group is expected to hike interest rates — possibly implementing the steepest increase since 1994 — at the conclusion of the two-day meeting.
— The FDA’s vaccine advisory committee will meet (8:30 am) to discuss Moderna’s request for its Covid-19 vaccine to be authorized for use by 6- to 17-year-olds. The panel’s recommendations are generally followed by the FDA, although they are not final
— The Supreme Court has nothing on tap today.
Before I go...
Here’s an uplifting story: In 2012, Luke Parry’s family was told he had only hours to live after falling off a balcony and suffering a catastrophic brain injury.
But, ten years later, Luke is still alive and training to be a Paralympic athlete — a recovery partly made possible by the work of his twin brother, Ellis Parry, who has developed an app that helps allow people with neurological conditions to “take control of their lives” by aiding with memory, planning, training, and support networks.
The app, Neumind, has grown from being used only by Luke to now boasting more than 450 users; Ellis was recently awarded an award for promising young entrepreneurs in the United Kingdom.
Here’s more from The Guardian.
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