May 20, 2022 (Friday)
As the hearings on the events of January 6th and the attempt to overturn the 2020 election approach, the extent of the operation is becoming clearer.
Last night, lawyers for John Eastman filed a brief arguing, once again, that Eastman should be able to hide documents associated with the attempt to overturn the 2020 election on the grounds that he was working for former president Trump and so their communications are protected by attorney-client privilege. Eastman was the author of the infamous Eastman memo that provided a blueprint for then–vice president Mike Pence to throw the election to Trump, and he has done his best to delay the release of documents despite court orders to turn them over.
The filing is a litany of grievances against the court, but it does offer some new information. Eastman’s team is seeking to protect communications between Eastman “and one or more of six conduits to or agents of the former President with whom Dr. Eastman dealt.” The filing goes on to specify that three of those people worked on Trump’s campaign and that the other three were “members of former President Trump’s immediate staff.” The filing says, “While Dr. Eastman could (and did) communicate directly with former President Trump at times…, many of his communications with the President were necessarily through these agents.”
Among the documents he wants to protect are “[t]wo…hand-written notes from former President Trump about information that he thought might be useful for the anticipated litigation,” as well as documents from state legislators, “a party committeewomen” [sic], and someone who was “coordinating information sessions for state legislators.”
The filing tries to assert that these documents are covered by the attorney-client privilege because Eastman was justified in believing the election was fraudulent, even though reams of evidence have proved it was not. But what it has revealed is that there is written evidence that Trump himself was directly involved in the plotting to overturn the election.
Today, Emma Brown of the Washington Post broke the story that Ginni Thomas, who is married to Supreme Court Justice Clarence Thomas, was even more deeply involved in the attack on the election than we knew. Ginni Thomas sent emails to two Arizona lawmakers on November 9, 2020, urging them to ignore the legitimately elected presidential electors for Democrat Joe Biden and replace them with “a clean slate.” Using a platform that provided prewritten emails, she urged the lawmakers to “stand strong in the face of political and media pressure,” and “to fight back against fraud.”
One of the people to whom she wrote, Shawnna Bolick, is married to Arizona Supreme Court Justice Clint Bolick. The Bolicks are close to Clarence Thomas, who is godfather to one of the Bolicks’ children. Shawnna Bolick responded to Thomas: “I hope you and Clarence are doing great!” In 2021, Bolick introduced a bill to allow the Arizona legislature to choose its own electors, regardless of the will of the voters. She is now running for secretary of state, where she would oversee the state’s elections.
Justice Thomas was apparently talking about the leak of the draft decision overturning Roe v. Wade when on May 6 he told a group of judges and lawyers that our justice system is in danger if people are unwilling to “live with outcomes we don’t agree with.”
And then, this afternoon, Isaac Stanley-Becker and Shawn Boburg, also of the Washington Post, reported that the billionaire co-founder, chair, and chief technology officer of the computer technology corporation Oracle, Larry Ellison, also participated in a call about the 2020 election. Legal filings in a court case against True the Vote, an organization that has spread lies about widespread voter fraud, contained a note from True the Vote’s founder Catherine Engelbrecht that read: "Jim [Bopp, a lawyer for True the Vote] was on a call this evening with [Trump lawyer] Jay Sekulow, [South Carolina Senator] Lindsey O. Graham, [Fox News Channel personality] Sean Hannity, and Larry Ellison…. He explained the work we were doing and they asked for a preliminary report asap, to be used to rally their troops internally, so that's what I'm working on now."
Ellison, whom Stanley-Becker and Boburg identify as the 11th richest person in the world, gives significant money to right-wing causes and candidates, including Lindsey Graham, to whom he donated hundreds of thousands of dollars in 2018. More recently, he pledged $1 billion of the $44 billion deal for Elon Musk to buy Twitter.
The House Select Committee to Investigate the January 6th Attack on the U.S. Capitol continues to collect information. Today, Trump lawyer Rudy Giuliani met with its members for nine hours. Initially, he said he would not talk with them unless his testimony was videotaped.
And the conspirators are not faring well in court: today, U.S. District Judge Carl Nichols sanctioned Mike Lindell, the MyPillow CEO who has thrown his lot in with Trump and fought hard to overturn the election. Nichols called at least some of Lindell’s claims against the Smartmatic Corporation, a voting systems company, “groundless” and “frivolous.” Nichols threw out Lindell’s lawsuits against Smartmatic and other voting systems companies, and ordered Lindell to pay some of the costs Smartmatic has run up defending itself.
Lindell told Bloomberg News: “Whatever the judge thinks, that’s his opinion. I’ve got lawyers doing more important things like removing these machines from every state.”
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Notes:
https://storage.courtlistener.com/recap/gov.uscourts.cacd.841840/gov.uscourts.cacd.841840.345.0.pdf
https://www.washingtonpost.com/politics/2022/05/20/trump-lawyer-eastman-fraud-evidence/
https://www.washingtonpost.com/investigations/2022/05/20/ginni-thomas-arizona-election-emails/
https://www.reuters.com/world/us/giuliani-meets-with-us-house-jan-6-panel-cnn-reports-2022-05-21/
https://storage.courtlistener.com/recap/gov.uscourts.dcd.227759/gov.uscourts.dcd.227759.135.0.pdf
https://www.politico.com/news/2022/05/20/eastman-trump-role-legal-overturn-election-00034023
https://www.washingtonpost.com/politics/2022/05/20/larry-ellison-oracle-trump-election-challenges/
https://www.axios.com/2022/05/20/mypillow-mike-lindell-smartmatic-lawsuit
https://www.washingtonpost.com/politics/2022/05/06/clarence-thomas-abortion-supreme-court-leak/
https://www.jta.org/2022/05/19/opinion/overturning-roe-would-be-an-unconscionable-infringement-on-the-religious-freedom-of-orthodox-jews
Here is a fabulous article making the case that overturning Roe would be an unconscionable infringement on the religious freedom of orthodox Jews. Jewish law goes back over 5,000 years or something like that. I had really been wondering why Freedom of Religion wasn't part of the discussion arguing against Alito's draft position on Roe. Alito also ignores Amendment 9 of the Bill of Rights which should be an integral part of originalist thinking. "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." The Constitution explicitly says it is not naming all the rights RETAINED BY THE PEOPLE. To me that means if the significant majority of the people say it is their right it is a right. Time to impeach Alito and Thomas.
Another thing I like about the explanation of Jewish Law in this article is a theme I've been stating many times over. The OR world of black and white is just not sufficient in dealing with all the implications of many issues in life and most certainly in a women's choice. To me Patriarchy is the OR world - you're right or wrong, one up or one down, very primitive. The AND world is egalitarianism where you have the Synergy of multiple perspectives brought together to come up with better solutions for all.
Cafe Insider Preet Bharara writes this letter to his readers. All that follows is a direct quote from him:
Dear Reader,
Justice Clarence Thomas is famously reticent on the bench. He doesn’t talk much. He doesn’t ask questions often. He once went a full decade without making a single query of counsel at oral argument. But in the wake of the leaked Alito draft opinion that would undo Roe v. Wade and the ensuing protests, Thomas is raising his voice. But it is impossible to accept the truth of the matters he has asserted in recent out-of-court statements.
Speaking at a judicial conference in Georgia two weeks ago, Thomas said that, as a society, "we are becoming addicted to wanting particular outcomes, not living with the outcomes we don't like.” He went on: "We can't be an institution that can be bullied into giving you just the outcomes you want. The events from earlier this week are a symptom of that."
Well, that’s almost as rich as Elon Musk.
Let’s talk about outcomes and discuss who the addicts are. Thomas willfully ignores 49 years of agitation by anti-abortion activists who have never been able to abide an outcome they didn’t like.
Because of an addiction to a particular outcome, legislatures in at least 13 states have passed so-called trigger laws, which would ban abortion to varying degrees in the event Roe is overturned. The legislature in Texas, in passing the bounty provisions in SB8, and the legislature in Mississippi, in passing the anti-abortion law now being considered by the Supreme Court, announced loudly and clearly that they could not abide the outcome in Roe, which has been settled law for half a century.
Consider the endless campaign to alter the balance of the Court, a counter-majoritarian effort undertaken with particular zeal and focus. And the singular agenda item was to undo an outcome they have never liked or learned to live with.
Consider also the record of violence and murder (and bullying) by anti-abortion forces over the years.
In fact, in the wake of pervasive harassment and obstruction outside abortion clinics, in 1994 Congress passed the Freedom of Access to Clinic Entrances Act (FACE Act) to protect the rights guaranteed by Roe.
In July 1994, Paul Hill, an anti-abortion protester and former pastor, murdered Dr. John Bayard Britton and James H. Barrett, a clinic volunteer. The attack took place outside of a women’s health center.
In January 1998, anti-abortion activist Eric Rudolph planted and detonated a bomb outside of an abortion clinic in Birmingham, Alabama, killing Robert Sanderson, a security guard for the clinic. The other victim was Emily Lyons, a nurse at the clinic, who was maimed and left half-blind.
In October of that year, anti-abortionist James Kopp killed Dr. Barnett Slepian with a high-powered rifle. Dr. Slepian was standing in his kitchen with his family when Kopp shot him through the window.
In November 2015, Robert Lewis Dear Jr., shot 12 people in a Planned Parenthood clinic in Colorado Springs. Three were killed while nine others were injured. Dear later turned himself in stating, “I am a warrior for the babies.”
According to an analysis by Vox, between 1977 and 2015, there were eight murders, 17 attempted murders, 42 bombings, and 186 arsons targeted at abortion clinics and providers across the United States.
Clarence Thomas is up in arms over some peaceful protests. He might think about all the murder and mayhem visited upon doctors and women and clinics since Roe was decided.
There is, of course, another rich irony in Thomas’s lecturing us about accepting outcomes. What, in recent times, is the least accepted outcome on the part of a radical group of conspiracy-theorists in America? It’s the election of 2020. We had a free and fair process. The outcome was that Biden won, and Trump lost. And yet we have legions of elected officials and Kraken lawyers and cable television hosts who have not learned to live with that outcome.
More than that, we had a group of violent rioters try to bully a co-equal branch of government into doing that which they could not achieve fair and square at the ballot box – installing Donald Trump in the White House for a second term. They didn’t hold up some signs on a street; they stormed the Capitol, chanted “Hang Mike Pence,” and looked for members of Congress to hurt.
More than that, among the group of deniers and insurrectionist sympathizers is Justice Thomas’s very own wife, who was advocating to the Trump circle that the election outcome must be reversed. Given his wife’s involvement in the Big Lie, instead of doing the ethical thing and recusing himself from matters relating to January 6th, Thomas has the nerve to berate peaceful pro-choice advocates about the need to accept outcomes they don’t like.
Here’s the thing about outcomes. People are more likely to live with one if the process leading to the outcome has indicia of fairness and good faith. If there is a perception of cheating or gamesmanship or mendacity, acceptance will naturally be more difficult. For many, the near certainty that Roe will be overruled is a hard pill to swallow for just these reasons. The denial of a seat to Merrick Garland; the rush to seat Amy Coney Barrett; the insincere reverence for settled precedents mouthed by various Republican nominees at their confirmation hearings; and the bad faith constitutional arguments contained in the draft opinion – all of these conspire to undermine the legitimacy of this new outcome, perceived to be wrought by radicals who couldn’t live with the last outcome.
Whatever else may be true, on the issue of living with outcomes you don’t like, Clarence Thomas should sit this one out.
My best, Preet