Justice Thomas insults the American people (again).

September 1, 2023

          In 2018 and 2019, Hunter Biden failed to report and pay taxes for income earned in the prior two years, respectively. Hunter paid the delinquent taxes ($100,000 for each year) in 2021. As a result of his late reporting of income and payment of taxes, Hunter Biden was subjected to a five-year federal investigation that continues to this day. Hunter attempted to plead guilty to a federal misdemeanor for failing to timely pay his taxes, but that plea deal fell apart. In short, when private citizen Hunter Biden wrongly delayed in reporting and paying taxes for three years, Republicans demanded—and got—a federal investigation that threatens Hunter Biden with a prison sentence.

          On Thursday, Supreme Court Justice Clarence Thomas released his overdue annual disclosure report for 2022. That disclosure form included footnotes that reported—for the first time—the existence of bank accounts omitted in reports from 2017 through 2021 and a 2014 real estate transaction in which a billionaire purchased the home of Thomas’s mother (who continues to live in the home rent-free). Thomas included a footnote that claimed he was not required to report hundreds of thousands of dollars in travel provided by billionaire Harlan Crow over the last two decades.

          Rather than exhibit any sense of contrition or remorse that he omitted hundreds of thousands of dollars in benefits and assets from his disclosure forms over the last twenty years, Thomas authorized his lawyer, Elliot S. Berke, to issue an “in-your-face” statement that blamed the American people concerned about the integrity of the Court. Berke wrote:

For several months now, left wing “watchdog” groups have been attacking Justice Thomas for alleged ethical violations largely stemming from his relationships with personal friends who happen to be wealthy.

Willful violations require intentional disregard or indifference. The attacks on Justice Thomas are nothing less than ridiculous and dangerous, and they set a terrible precedent for political blood sport through federal ethics filings.

No Justice, Justice Thomas included, should be subjected to such political blood sport. It is painfully obvious that these attacks are motivated by hatred for his judicial philosophy, not by any real belief in any ethical lapses.

          On the one hand, Elliot Berke deserves credit for recognizing that hundreds of millions of Americans do, in fact, “hate” Justice Thomas’s judicial philosophy. That should be grounds for sober reflection by Justice Thomas rather than chest-thumping by his lawyer.

          On the other hand, Berke’s statement highlights why the American people have lost confidence in the Supreme Court. Thomas’s ethical lapses are self-evident and egregious, but his lawyer attacks those who raise serious questions that deserve serious answers. See Dahlia Lithwick and Mark Joseph Stern in Slate, The Most Galling Part of Clarence Thomas’ Latest Ethics Disclosure. What we got was a transparently false rationalization that insults the intelligence of the American people.

          Thomas should resign. Instead, his lawyer plays the “victim” card to defend the indefensible and blames those who seek to uphold the integrity of the Court and the federal judiciary.

          Justice Thomas will be remembered as the most corrupt justice to sit on the Court (so far)—although he has stiff competition from other members of the reactionary majority. But with a few more “attack-dog” letters from Mr. Berke, Thomas’s place in infamy will be secure.

Developments in Georgia.

          Developments in Georgia are providing a window into the disparate reactions to Trump's indictments across America. Reactionary elements in the Georgia Republican Party are agitating to remove or defund District Attorney Fani Willis. But Republican Party leaders in Georgia are attempting to quell those efforts. On Thursday, Governor Brian Kemp doused impeachment and defunding efforts against Willis with several buckets of cold water. See Atlanta Journal-Constitution, Kemp rejects talk of special session, says punishing Fani Willis carries risks.

          Per the AJC,

The second-term Republican said he hasn’t “seen any evidence” that Willis has violated her oath of office, even though he voiced concerns about whether she was motivated by politics to pursue the 41-count indictment.

“The bottom line is that in the state of Georgia as long as I’m governor, we’re going to follow the law and the Constitution, regardless of who it helps and harms politically,” Kemp said. “Over the last few years, some inside and outside of this building may have forgotten that. But I can assure you that I have not.”

Kemp added: “In Georgia, we will not be engaging in political theater that only inflames the emotions of the moment. We will do what is right. We will uphold our oath to public service. And it is my belief that our state will be better off for it.”

“These rules and laws work both ways for all parties — Republican, Democrat or otherwise,” the governor said. “And you have to be very careful when you’re in power in government not to abuse that power, because if you do, you set the precedent for the other side using what you did in the future against them.”

          There is a lot to unpack in Kemp’s statement, but the most important points are fealty to the rule of law and concern that abuse of power by one party sets a precedent for abuse of power by the opposition. That makes a lot of sense in a swing state that is becoming more Democratic by the day. But most importantly, Trump played no explicit role in Kemp’s statement . . . suggesting that perhaps Trump fever is breaking some corners of the GOP.

          But the same AJC article discusses the young GOP legislator in Georgia— Sen. Colton Moore—who made news on Tuesday on Steve Bannon’s War Room by saying,

I told one senator... we've got to put our heads together and figure this out. We need to be taking action right now. Because if we don't, our constituencies are gonna be fighting it in the streets. Do you want a civil war? I don't want a civil war. I don't want to have to draw my rifle. I want to make this problem go away with my legislative means of doing so.

          Moore’s comments amount to the mob-like statement, “It would be a shame if this place burned down,” except Moore is saying, “It would be a shame if there was a civil war if Fani Willis is allowed to proceed.”

          Moore also took aim at Governor Kemp and senior leadership in the legislature who are trying to reduce the temperature of the rhetoric surrounding D.A. Willis. But Moore would not be calmed. Per AJC,  

Moore, for his part, has indicated he won’t scale down his bellicose rhetoric. He’s called GOP colleagues who oppose his effort “buzzard cowards,” and he encouraged Trump loyalists to berate them until they do.

          Here’s the point: The GOP is fracturing over Trump. That’s good. Trump is still likely to be the GOP nominee, but Republicans at the margins are beginning to look for an offramp. Hotheads like Colton Moore can fantasize about a “civil war,” but no such war will come because family businesses—like the Moore family farm and trucking business—would collapse in the face of widespread violence.

Thirty-year-old Colton Moore represents the “angry young male” contingent of the GOP. But that contingent is shrinking in Georgia and elsewhere. Governor Kemp is trying to appeal to more moderate Independents who increasingly determine elections in Georgia.

Update: The Georgia Record, a far-right outlet, is reporting the following on Thursday evening: The Georgia Record has confirmed discussions are underway inside the GA State Senate to remove Colton Moore from the Republican Caucus, and remove from committees.

          I would treat the above report with skepticism, except to the extent that it illustrates that the internal war in the Georgia GOP over Trump is heating up.

Georgia criminal proceedings.

          There was a flurry of proceedings in the Georgia RICO case against Trump and eighteen co-conspirators on Thursday. The most important development was an indication by the trial judge that the trial(s) will be live-streamed on YouTube. See Rule 22 Request to Install Recording Equipment for News Coverage of Judicial Proceedings and Atlanta Journal-Constitution, Fulton judge says Trump court proceedings will be televised.

          The live streaming of the trial will be a healthy exercise for American democracy. See the op-ed by Jill Wine-Banks in Detroit News, Put cameras in court for Trump's federal trials. Per Wine-Banks,

In today’s world, where everyone has a phone to watch televised proceedings in real-time, seeing Trump’s trials should not require being in D.C. or Florida and standing in line for hours to get one of the few prized seats. That is a deprivation of the right to a public trial, a right that inures to the benefit of the defendant and the public. This is especially true in a trial where we are all victims of the alleged scheme to keep the real winner of the election from being inaugurated.

          Hopefully, televising the Georgia trial will prompt Chief Justice John Roberts to drag the federal judiciary from the 18th century into the 21st! Again, per Jill Wine-Banks,

Justice Roberts and the Judicial Conference or Congress must create an exception to the Judicial Conference rules and Rule 53 of the Federal Rules of Criminal Procedure. This is an opportunity for the federal courts to finally join the modern world and abandon a rule from 1946, as well as to increase public acceptance of the facts.

These trials and our democracy deserve no less.

If you agree that televising Trump’s trials is the way to an informed electorate and public acceptance of the verdict by the majority of Americans, you can write to your congressman, senator or Chief Justice Roberts.

Sentencing of J6 defendants goes awry.

          Something went awry in the sentencing of Joseph Biggs and Zachary Rehl before federal judge Timothy J. Kelly on Thursday. Judge Kelly issued sentences that were about half as long as the term recommended by the federal sentencing guidelines and requested by the prosecution. Judge Kelly began the hearing by noting that he will likely never again issue a sentence that is fifteen years shorter than the federal guidelines.

          Federal judges should exercise independent judgment in imposing sentences. But in the case of Biggs and Rehl, Judge Kelly came close to saying, “It wasn’t really that bad; all they did was attack the Capitol.” See WaPo,. Proud Boy leader Joseph Biggs sentenced to 17 years for Jan. 6 crimes. This article is accessible to all, so you can read Judge Kelly’s comments in context and not rely on my characterization, which is admittedly affected by my anger over the shorter-than-recommended sentences for the leaders of the insurrection.

          Judge Kelly said, among other things, that he believes the recommended sentences “overstate” the crime because

“There was nothing to suggest” the Proud Boys planned anything akin to a bombing, a battlefield killing spree or trying to “blow up a skyscraper.”

          While Judge Kelly made other comments suggesting that he disapproved of the actions of the Proud Boys defendants and intended to send a message by sentencing them to lengthy terms, Judge Kelly seemingly adopted the view that January 6th was not a terrorist attack but merely a political demonstration that got out of hand.

          In equating terrorism with large-scale destruction, Judge Kelly misses the point entirely: Terrorism is intended to make the masses fearful by using limited, strategic violence. That was the plan of attack on January 6th: Dissuade members of Congress from performing their constitutional duty by invading the Capitol.

          Under the Proud Boys’ plan, there was no need to blow up a skyscraper. Breaking windows, beating law enforcement officers, and sitting in the Senate chamber is all it took to come within minutes of overturning the 2020 election.

          But in Judge Kelly’s view, comparing the Proud Boys to terrorists “overstates” what happened on January 6th because they did not blow up a skyscraper. And to answer the question that sadly and inevitably comes to mind, “Yes,” Judge Kelly was appointed by Trump (and is a member of The Federalist Society). There is nothing in Judge Kelly’s many years of public service to suggest that his political ideology has dissuaded him from honorably serving his country. Until now.

Concluding Thoughts.

          When Joe Biden was not available 24/7 to comment on the wildfires in Hawaii, Republicans berated him for a “lack of empathy.” Senate Minority leader Mitch McConnell suffered a second episode of “freezing” mid-sentence on Wednesday. Republicans in the Senate wasted no time in sharpening their knives to replace McConnell. See Politico, GOP senators weigh 'special' meeting on their leadership after McConnell's freeze.

          Unlike McConnell’s colleagues, Joe Biden was quick to say that he would call his old friend to wish him well. Biden not only called McConnell as promised, but the president also went out of his way to defend and compliment McConnell:

I spoke to Mitch. He’s a friend and I spoke to him today. And, you know, he was his old self on the telephone. . . .  It’s not at all unusual to have the response that sometimes happens to Mitch when you’ve had a severe concussion. It’s part of his recovery. I’m confident he’s going to be back to his old self.

          No need to send me emails saying that Biden was acting in self-interest to deflect criticism about his age. That is theoretically possible, although I don’t believe that is what Biden was doing. Biden's comments sound like what one friend would say about another friend who fell and is experiencing the after-effects of a concussion. I am not taking a position about what McConnell or the Senate GOP caucus should do. I am saying that in comparison, Joe Biden has again demonstrated that he is a decent person who genuinely cares about other people. That is a rarity in politics today.

          Talk to you tomorrow!