We start this week with a cloud hanging over the country. The same cloud. Donald Trump. Election day is less than a month away. Voting has already started in some places. And Donald Trump? His message continues to be one of hate and division. Politico has put out a piece confirming what we already know. The headline is: We watched 20 Trump rallies. His racist, anti-immigrant messaging is getting darker. In his new book, Bob Woodward writes that in March of 2023, General Mark Milley, whom Trump had appointed to be head of the Joint Chiefs of Staff, told him, “I had suspicions when I talked to you about his mental decline and so forth, but now I realize he's a total fascist. He's now the most dangerous person to this country. A fascist to the core.” Milley also said of Trump that “no one has ever been as dangerous to this country” and asked, “Do you realize, do you see what this man is?” Of course, it wasn’t just to Woodward. At his retirement in September of 2023, Milley surprised people by making comments that obviously referred to Trump, even though he didn’t mention him by name. "We don't take an oath a king or queen or a tyrant or dictator. We don't take an oath to a wannabe dictator. We don't take an oath to an individual. We take an oath to the Constitution," he said during the ceremony at Joint Base Myer-Henderson Hall.
Trump’s former national security advisor, retired General Michael Flynn, who pled guilty under oath twice to lying to the FBI only to get a pardon from Trump, was vocal over the weekend about what a future under Trump would look like. He was asked at the Rod of Iron Freedom Festival Friday night if he'd “sit at the head of a military tribunal to not only drain the swamp, but imprison the swamp, and on a few occasions, execute the swamp.” Flynn responded, “What your sentiment is about is accountability … I definitely believe we need accountability.” After pointing out Trump would need to win first for there to be “a way to get after this,” Flynn concluded, “These people are already up to no good … We win, and then Katie Bar the door. Believe me, the gates of hell, my hell will be unleashed.” Executions. Unreal. After last week’s disclosure of Jack Smith’s opener in this round of presidential immunity determinations for the election interference prosecution in Washington, D.C., there will be more this week. In addition to his brief, the Special Counsel’s filing includes appendices of evidence in the case that are still under seal. Judge Chutkan granted Smith motions to make redacted versions public but has given Trump until this Thursday to decide how to pursue his objections to that course of action. Judge Chutkan continues to show a total lack of interest in Trump’s argument that nothing can become public because of the election. In her order, she wrote, “‘Defendant’s concern with the political consequences of these proceedings’ is not a cognizable legal prejudice,’” that would merit sealing these items further.
Expect more on this in the coming week, possibly a decision and even a release of more from Smith’s filing on Thursday. In Trump’s submission, he argued the Special Counsel “unlawfully cherry-picked and mischaracterized evidence” and that he did it “during early voting.”
It is hard not to contrast the banal language of the pleading written by Trump’s lawyers with the harsh rhetoric of “accountability” offered up by his close advisor, Flynn. The Supreme Court will hear more cases in this second week of the new term. Here’s how the Solicitor General phrased the issue in San Francisco v. EPA, which will be argued on Wednesday: “The U.S. Environmental Protection Agency issued petitioner a National Pollutant Discharge Elimination System permit that imposes various limitations on petitioner’s discharges into the Pacific Ocean. Petitioner challenged two of those limitations, which are expressed as narrative prohibitions on discharges that cause or contribute to specified adverse effects on water quality. The question presented is as follows: Whether the challenged limitations violate the Clean Water Act, 33 U.S.C. 1251 et seq., by failing to identify specific limits to which petitioner’s discharges must conform.”
In the wake of the Court’s decision last term to overturn longstanding precedent and do away with Chevron deference, a doctrine that instructed the courts to defer to agency interpretations of how to proceed when Congress was silent, this case has the potential to hit a couple of hot button issues. At a minimum, it seems likely we will get some of how the Court plans to usher in this new era where the courts are free to substitute their decisions on technical issues like discharge permits for that of the experienced professionals who work in the federal bureaucracy. From Dobbs, the abortion case, to Loper Bright, the Chevron deference case, the Roberts Court is not shaping up as one with a deep respect for precedent. Quite the contrary, and despite the Justice’s protestations of fealty to the law in the case of Roe v. Wade, they do not seem to be constrained by precedent.
This is, after all, a Court that was not swayed by the argument that if they granted Trump broad presidential immunity, he would be free to call on SEAL Team Six to execute a political rival. So far, the Court has not agreed to hear an abortion case this term. They have already passed on the Biden Administration’s efforts to get them to force Texas to provide emergency room care to pregnant patients under the federal EMTALA statute and ducked the Alabama case disallowing in vitro fertilization under a Dobbs analysis. Two cases involving whether anti-choice protestors’ First Amendment rights are violated by forcing them to confront patients entering clinics for care from a limited “buffer” or “bubble” zone are still on the list of cases where parties have asked the Court to grant certiorari and hear the case. There is no indication of whether the Court will agree to as of yet. Finally, efforts by red state Republican leaders to remove voters from the rolls within the 90-day “quiet period” before an election (during which time those removals are prohibited by the Motor Voter Act) drew the ire of the Justice Department for the second time in as many weeks. Virginia has joined Alabama in removing voters they claim aren’t citizens. This is part of Trump’s new Big Lie for 2024, the baseless claim we discussed here that “illegal aliens” will vote and steal the election. As we discussed when DOJ filed the Alabama case, Trump’s claims don’t make any sense. It’s already illegal for noncitizens to vote. And there’s more:
Like so many of Trump’s lies about fraud that works against him in elections, as soon as you take a minute to think about his claims, they don’t hold up. DOJ is always hesitant to get involved in election-related litigation this close to the election itself to avoid even the appearance of influencing the outcome. But here, the law is clear. States aren’t permitted to remove lawful voter this close to the election. Make sure that, as I frequently ask, you’ve documented your active voting status with a screen shot after the 90-day mark. If you’re told you can’t vote, you are entitled to vote a provisional ballot, which requires that you jump through extra hoops that often involve returning with additional proof of eligibility. But this election is too important to let even a single vote go. Please do whatever it takes! If you missed last night’s post, Wednesday night I will be in conversation with Judd Legum, of the Popular Information newsletter here on Substack. We will discuss the election, and all of you are invited to join us. Follow the link in the post to download the Substack App if you haven’t already. And, if you have issues you want us to address or questions for us to answer, please leave them here on Twitter for us. Thank you for being here with me at Civil Discourse as the election draws closer. I appreciate your support for the newsletter and hope you’ll consider upgrading to a paid subscription if you don’t already have one. It really helps me devote the time and resources to this work. We have a Republic to keep! We’re in this together, Joyce
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