The Week AheadJanuary 12, 2025With Donald Trump’s criminal sentencing behind us, the question of the release, or not, of Special’s Counsel Jack Smith’s report seems destined to be one of the key issues we follow this week. Last Thursday night, the Eleventh Circuit denied Trump’s request to enjoin the government from releasing the report. But cryptically, they left Judge Aileen Cannon’s injunction, which lasts for three days after they ruled, in place. That means Monday is the earliest day DOJ can release the report (under the Federal Rules of Procedure, Thursday, the day she issued the order, shouldn’t count as one of the three days).
To further complicate matters, the Justice Department only plans to release Volume One of the report, which has to do with the January 6 case. Because Volume Two, which relates to the classified documents case that was in front of Judge Cannon until she dismissed it, is still on appeal, DOJ only plans to release those materials to Congressional leaders for now. That avoids any risk of violating local rules or prejudicing Trump’s former co-defendants, although, as a practical matter, everyone understands that once Trump takes over, the case is dead. In its order last week, the Eleventh Circuit invited the government to take an emergency appeal of Judge Cannon’s order denying the government permission to release the report. They’ve done that now, but it’s messy, with Judge Cannon, in the meantime, demanding that DOJ account for a claim by Trump’s former co-defendants that there is some crossover information in Volume One of the report that involves them. DOJ responded Sunday morning and said that’s not the case. The strangest thing about this entire proceeding is that Judge Cannon continues to issue orders when there is no case pending in front of her. That’s not how a court’s jurisdiction is supposed to work. You don’t have to take my word for it—the PACER docket shows the case as closed.
But here we are with new filings, including a sealed entry from the court (which means we don’t have any idea what’s in it) early Sunday evening. This could be a blip because the system is undergoing maintenance tonight or it could be a substantive order of some kind.
Delay is ever Trump’s friend in legal proceedings, and the clock is ticking. A delay invoked by Judge Cannon and unchecked by the Eleventh Circuit, or one that happens at the Supreme Court if Trump’s allies appeal there, could, as a practical matter, end the possibility of release of the report. Once Trump is back in office, it’s practically certain his Justice Department won’t release the report even if a court says it can—the rules make release discretionary with the attorney general. But it would be a travesty if a report from this investigation, alone among the special counsel proceedings commenced during the Trump and Biden Administrations, remained secret. One of the important purposes of the criminal justice system is to get at the truth of matters. Here, much remains unknown. As for Jack Smith, he’s out. The Special Counsel resigned from the Justice Department on January 10. National Day of Shame January 14 is the anniversary of Trump’s impeachment for his conduct connected to the Big Lie, the insurrection, and January 6. Who’s with me in treating this as a national day of shame for Republican senators who failed to do the right thing? More in The Culture Wars From The Fifth Circuit On Wednesday, the Supreme Court will hear oral argument in Free Speech Coalition v. Paxton, a case where SCOTUS will consider “whether the Fifth Circuit Court of Appeals erred as a matter of law in applying rational-basis review to a law burdening adults' access to protected speech, instead of strict scrutiny as this Court and other circuits have consistently done.” What does the legalese mean? Texas is one of a growing number of states with laws that require websites containing sexual material deemed “harmful to minors” to ask people to verify their age before they can access the website. Texas’ Act defines “sexual material harmful to minors” as anything an average person considering the impact the material has on minors would consider obscene. That vague standard could cover everything from healthcare information, to sex education videos, to R-rated movies, in addition to explicitly pornographic material. But laws that burden a fundamental right, here the First Amendment, must be able to survive strict scrutiny to be constitutional. Strict scrutiny would mean that Texas would have to show that its law is “narrowly tailored” to further a “compelling government interest,” and is the “least restrictive means” to further that interest. A group of Texas plaintiffs sued Texas, and the district court agreed with them. But when the case got to the Fifth Circuit, that court used a “rational basis” test, which is much weaker than strict scrutiny, only requiring the state to show it had some rational basis for imposing the law to justify its constitutionality. Texas says its goal is to protect children. The Supreme Court and other Circuits have used strict scrutiny as the standard in largely indistinguishable cases. Given that kind of precedent, this is a case you might expect to be 9-0, reversing the Fifth Circuit. But anything is game with this Court, and I’ll be listening to the argument Wednesday to get a sense of where the Justices are. Confirmation Battles Start To Heat Up On Tuesday, Pete Hegseth will have his confirmation hearing before the Senate Armed Services Committee.
Despite the allegations of financial mismanagement and sexual misconduct lodged against him from multiple sources, Democratic members of the Senate report that with the exception of ranking member Jack Reed, they do not have access to the FBI background report for the nominee and his handlers have gone out of the way to make it difficult for them to schedule meetings with him. If you’re flashing back to the Kavanaugh confirmation hearings, you’re in the correct lane. Hegseth lacks the experience necessary to run DOD. That should be game over. Beyond that, my view on this one hasn’t changed since I wrote in mid-December, “Donald Trump has nominated Pete Hegseth to be the Secretary of Defense. It's a nomination that should have been ended by allegations of financial mismanagement—Hegseth denies them—of an organization whose budget ran into tens of millions, not the $783 billion dollar budget he would oversee at the Pentagon. And, of course, there are the other criticisms that have been leveled at Hegseth, of misogyny and sexual assault, which he also denies, and of excess drinking, of which he says he won’t drink if he’s confirmed.” Make sure your senators know how you feel about this one. For too long, we’ve given Republican Senators a pass, letting them convince us our voices don’t matter. But they do. If they are going to vote to confirm, as they are likely to, make sure they do it over your disapproval. If we don’t speak up, they will conclude that they are free to do as they wish. Let’s give them reason to doubt that from the very start of this administration.
Florida Attorney General Pam Bondi has the first day of her hearing for the position of attorney general on Wednesday morning. This one seems destined to fly under the radar in light of some of Trump’s other picks. But Bondi, as a state AG, declined to investigate allegations of deceptive practices and fraud involving Trump University after Trump, “through his family foundation, sent a check for $25,000 to a political action committee associated with Ms. Bondi, who was running for a second term.” That’s quite a history between a president and his attorney general.
Among other scheduled hearings for this week are South Dakota governor Kristi Noem’s hearing before the Committee on Homeland Security and Governmental Affairs on Wednesday morning. If confirmed, she will be heavily involved in carrying out Trump’s promises to secure the border and stage mass deportations. Russell Vought, a name you may recall from our discussions about Project 2025, has a hearing scheduled before the same committee Wednesday afternoon to head the powerful Office of Management and Budget, where he will be positioned to oversee implementation of the policies that form the conservative blueprint for government. Robert Kennedy, Kash Patel, and Tulsi Gabbard are among those who still don’t have scheduled hearings. North Carolina Supreme Court Election Challenge In North Carolina, Republican Judge Jefferson Griffin’s challenge to 60,000 ballots cast in his race for the state Supreme Court, a race he lost to Democratic Justice Allison Riggs, is still ongoing. The state was ready to certify her win when Griffin filed a challenge, relying on unsupported voter fraud claims. A federal judge kicked the challenge back to the state’s hyper-partisan Republican Supreme Court. They are holding hearings at the same time the proceedings are also before the Fourth Circuit Court of Appeals to reconsider the decision to send the case back to the state Supreme Court. It’s rather dizzying. Gene Nichol, a professor at the University of North Carolina’s law school has this opinion piece out, a view from a close observer who is appalled at the politicization of the state’s highest court. Nichol explains that “Griffin’s post-election litigation ‘seeks to remove the legal right to vote from people who lawfully voted under the laws and regulations that existed during the voting process. The harm this type of post-election legal challenge could inflict on the integrity of our elections is precisely what (North Carolina legal) principle is designed to avoid.’” We know that state and local races and decision-making can matter as much as what happens in Washington, if not more. We’ve watched Texas try to institute its own border policy and California vow to help women access medical care. Beyond that, state supreme courts office play a significant role in elections. The outcome of this North Carolina race could end up affecting all of us. We’re in this together, Joyce |
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