Shame! Shame! Shame!

June 22, 2023

          A remarkable day in American politics ended with Democrats gathered in the well of the House as they chanted “Shame! Shame! Shame!” in response to the censure of Rep. Adam Schiff—with Speaker Kevin McCarthy banging his gavel in a futile effort to restore order. The rebuke can be applied to any of the three leading stories of the day. Let’s start from the beginning, then circle back to the demonstration in the House—and Adam Schiff’s inspirational speech before his censure.

Shame on Chief Justice Roberts!

          Another ethics scandal rocked the Supreme Court on Wednesday—this time involving Justice Alito accepting lavish travel and lodging sponsored by the Federalist Society and underwritten by conservative billionaire Paul Singer. Before looking at the specifics, we should step back to ask how the justices came to believe they were above the law and accountable to no one. The answer to that question is complicated and multifaceted. But, in the end, there is one person on the Court responsible for enforcing ethical standards and maintaining order: Chief Justice John Roberts.

          The string of scandals spans John Roberts’s tenure as Chief Justice and includes serious ethical breaches by Thomas, Roberts, Alito, and Gorsuch (at least). It includes a hapless investigation by Roberts that seemed designed not to identify the source of the leak of the Dobb’s draft. And, of course, the biggest scandal is the reactionary majority’s repeated disregard of long-settled precedent to remove rights embedded in the Bill of Rights.

          As the public’s trust in the Supreme Court plummeted to historical lows, Roberts first hid behind a wall of silence, simply ignoring the scandals in his annual reports on the Court. When that approach became untenable, he gave milquetoast defenses of the Court, feigning shock and surprise that anyone would question the self-policing ethics of the justices. And finally, in May of this year, he tepidly acknowledged that the Court was “continuing to look at things we can do . . .  to making certain that we as a court adhere to the highest standards of conduct.”

          There is no need for Justice Roberts to “continue to look at things.” The solutions are obvious—indeed, they already exist. Justice Roberts could require the justices to comply with the Code of Conduct for United States Judges. He could investigate and (if appropriate) publicly reprimand his colleagues when they act in a manner that creates the appearance of impropriety or when they fail to recuse themselves from cases in which their impartiality can reasonably be questioned.

          In short, Chief Justice Roberts could—and should—act as the conscience of the Court. Instead, he is acting as its chief apologist and enabler for justices who see their offices as sinecures. Every scandal on the Court lies at the feet John Roberts. Until he finds a spine or a conscience (preferably, both), his reactionary colleagues will act like feudal lords in petty fiefdoms—arrogant, entitled, and accountable to no one.

          The details of Justice Alito’s scandal are maddening, especially because of his hubris and condescension in the face of damning disclosures. At the highest level, the scandal is part of the long-term effort by Leonard Leo and the Federalist Society to stage a hostile takeover of the Supreme Court. In the latest instance, the Federalist Society hosted a fishing trip to Alaska underwritten by billionaire Paul Singer. Justice Alito was provided free transportation on a private jet, free accommodation at a lodge, and free meals. Alito reported none of this on his required disclosures. See Pro Publica, Alito Took Unreported Luxury Trip With GOP Donor Paul Singer.

          After the lavish hunting trip, Paul Singer or his companies appeared before the Supreme Court “at least 10 times in cases where his role was often covered by the legal press and mainstream media.”

          Per Pro Publica, Alito did not report the trip as required by federal law:

“Alito did not report the 2008 fishing trip on his annual financial disclosures. By failing to disclose the private jet flight Singer provided, Alito appears to have violated a federal law that requires justices to disclose most gifts, according to ethics law experts.

“Experts said they could not identify an instance of a justice ruling on a case after receiving an expensive gift paid for by one of the parties.”

          The disclosures in the Pro Publica article are serious enough to warrant a public comment by Chief Justice Roberts assuring the public that the Court will investigate the allegations. Instead, the public was subjected to a preemptive op-ed by Justice Alito in The Wall Street Journal, Justice Samuel Alito: ProPublica Misleads Its Readers. (This article is accessible to everyone.)

          Justice Alito was able to publish a preemptive reply because he received written questions from Pro Publica last Friday. Rather than responding to the questions, he leaked the story by publishing the op-ed in the WSJ. (Hmm. Leaking in advance of the release of a final document. Sound familiar?)

          Justice Alito claimed that the Pro Publica article was “misleading”—despite the fact the Pro Publica article had not yet been published! He then offered a defense of accepting free airfare on a private jet by noting that he merely “occup[ied[] what would have otherwise been an unoccupied seat on a private flight to Alaska.”

          That explanation drew howls of derision and laughter, with many commentators wondering if United Airlines would begin giving away empty seats for free on the theory that the seats “would have otherwise been unoccupied.”

          An even more pernicious argument made by Alito is this: “On no occasion have we [Paul Singer and I] discussed the activities of his businesses, and we have never talked about any case or issue before the Court.”  In essence, Alito argues that because he did not commit an actual impropriety, there is no basis for the appearance of impropriety. That argument would eviscerate the rule requiring recusal in the case of the appearance of impropriety. But as set forth in Canon 2A of the Judicial Code of Conduct,

“A judge must avoid all impropriety and appearance of impropriety. This prohibition applies to both professional and personal conduct. A judge must expect to be the subject of constant public scrutiny and accept freely and willingly restrictions that might be viewed as burdensome by the ordinary citizen.”

          In allowing Alito to publish a preemptive reply to an article that had yet to be published, the WSJ editorial board committed a grievous breach of journalistic ethics. Worse, it has become complicit in the corruption and lawlessness of the Court’s reactionary majority.

          John Roberts is ineffectual or complicit, or both. The reactionary majority has flouted disclosure laws and abandoned the norms of ethics and jurisprudence. Two members of the Court were appointed illegitimately, and one member should be impeached for lying to Congress during his confirmation hearings. It is time to enlarge the Court, which is the only solution that can be achieved by a majority vote in Congress and the signature of the president.

Shame on special counsel John Durham!

          Trump's “revenge” special counsel John Durham testified before the House Judiciary Committee on Tuesday. He was subjected to withering cross-examination by representatives Adam Schiff, Ted Lieu, and Eric Swalwell, among others. In addition, GOP Rep. Matt Gaetz said that Durham’s investigation was so bad that it reminded him of the “Washington Generals”—a basketball team that existed for the sole purpose of losing to the Harlem Globetrotters. Gaetz went so far as to accuse Durham of being part of an effort to cover up the alleged crimes of the FBI and DOJ.

          Adam Schiff was particularly effective in dismantling and humiliating John Durham. I urge you to watch these clips to get a flavor of Schiff’s masterful examination of Durham:

• Schiff leads Durham through Mueller Report, eliciting admissions that Russia repeatedly interfered in the 2016 campaign to help Trump.

• Durham retreating to the defense that "I don't really read the newspapers" to avoid answering Schiff’s questions.

          Schiff’s examination of Durham was so brutal that some commentators are claiming that Durham lied during his testimony by claiming not to remember facts (like Trump's use of stolen emails from the DNC in the 2016 campaign). See David Corn in Mother Jones, John Durham Just Made False Statements to Congress.

          Durham’s testimony before the House Judiciary Committee was a good reminder of three things:

• First, that the GOP effort to use the House as a hotbed of retaliatory investigations has failed spectacularly.

• Second, the Mueller Report contained substantial evidence of widespread, coordinated efforts by the Russian government to interfere in the 2016 election, efforts that Trump welcomed, publicly encouraged, and used as part of his campaign.

• Third, Republicans shouldn’t mess with Adam Schiff. When they do, they come out on the losing end.

Shame on the House GOP!

          House Republicans were able to advance a motion to censure Adam Schiff on Wednesday. They did so because Adam Schiff is the most effective critic of Trump and MAGA extremists in Congress—and because he committed the cardinal sin of acting as a prosecutor in the Senate trial of Trump's first impeachment.

          Before the vote, Rep. Schiff was allowed to defend himself in the House well. The video of his inspirational remarks is here: Video | Adam in the News. I urge you to watch the entire video. It will renew your faith in our democracy and the righteousness of our cause.

          Rep. Schiff said, in part:

“To my Republican colleagues who introduced this resolution, I thank you. You honor me with your enmity. You flatter me with this falsehood. You who are the authors of the big lie about the last election condemn the truth tellers and I stand proudly before you. Your words tell me that I have been affective in the defense of our democracy, and I am grateful. [¶¶]

“Speaker McCarthy would spend the nation’s time on petty political payback, thinking the censure or fine will force Trump's opposition into submission. But I will not yield. Not one inch. The cost of the Speaker’s delinquency is high, but the cost to Congress of this frivolous and yet dangerous resolution may be even higher as it represents another serious abuse of power.

“I say this to Speaker McCarthy and others who wish to gratify Donald Trump with this act of subservience, try as you might to expel me from Congress or silence me with a $16 million fine, you will not succeed you might as well make it $160 million. The Speaker will never deter me from doing my duty no matter how many false justifications or slanders you level against me. You indict yourselves. [¶¶]

“Why were you silent, afraid, and unwilling to do your ethical, constitutional duty? Why did you cower? And why do you still? Will it be said of you that you lacked the courage to stand up to the most immoral, unlawful, and unethical president in history but consoled yourselves by attacking those who did?

“Today I wear this partisan vote as a badge of honor knowing that I have lived my oath, knowing that I have done my duty to hold a dangerous and out-of-control president accountable and knowing that I would do so again in a heartbeat if the circumstances should ever require it. I thank you, and I yield back.”

          After Adam Schiff completed his speech and the clerk announced that the motion would proceed to a vote over Democratic objections, Democrats gathered around Rep. Schiff and chanted, “Shame, shame, shame.” It was a moment of unity and celebration for Democrats.

          Although an uninformed observer might conclude that Adam Schiff lost on Wednesday, the truth is that he won, Democrats won, and democracy won. The losers on Wednesday were McCarthy, the House GOP, and Donald Trump.

Help defend Virginia’s Democratic margin in the state senate and flip seats in the legislature.

          I received this note from Jim Shelton, one of the leaders of 31^st Street/Swing Left. Virginia will be holding elections this year that will be vitally important to maintaining Democratic control in the state senate—and preventing a Republican trifecta heading into the 2024 presidential election. Here is Jim’s note:

“With Virginia’s Tuesday primaries now over, a pitched battle is now underway for all 140 Virginia State Senate and House seats. A swing of just 2 votes in the currently blue Senate is all that keeps Virginia from a Republican trifecta. Governor Glenn Youngkin has revealed his MAGA intentions, including his recent defense of Donald Trump in Trump’s indictment, and his willingness to sign “any” abortion bill that comes to him for signature. And our ability to regain the US House could be at risk, if Republicans try to open redistricting up to gerrymandering. 

“31st Street Swing Left along with several Virginia co-sponsoring groups, has carefully strategically developed a slate of the 8 key House and 2 Senate seats, most likely to decide the fate of the legislature.  And early money is crucial.  The goal is $200,000 across the slate. They are holding a fundraiser on June 27 at 7PM ET, featuring Congresswoman Jennifer Wexton. Attendance is free. Here is the zoom link for the event.

https://us02web.zoom.us/j/83592664427

And here is the link to donate to the slate: https://secure.actblue.com/donate/31ststvaleg23?refcode=News”

Welcome Neal Katyal to Substack!

          MSNBC legal commentator Neal Katyal has moved his “Courtside” podcast to Substack, here: Courtside with Neal Katyal | Substack. His first guest is Ari Melber! Welcome to Substack, Neal!

Concluding Thoughts.

          On Wednesday, I was proud to be a Democrat. House Democrats defended democracy and did themselves proud. And, it was a team effort, made possible by Nancy Pelosi’s decision to make way for a new generation of leadership. The unity of Democrats in the well of the House should give us renewed confidence about our prospects for 2024 and beyond.

Talk to you tomorrow!