Morning Cannolis

Broadcasting live from one of the state’s most important gatherings of civic leaders, advocates, and residents concerned about and motivated to act to protect the foundations of our free, embracing, and forward-looking society, another in the series of discussions of the important news items of our times—as understood through the informing lens of civics, law, and government. Beginning with an exposition of the recent reporting by the Federal Bureau of Investigation about shocking increases in hate crimes in America (and what engaged citizens can and should do about that destructive trend)—followed by another Justice Department report on the unconstitutional, illegal, and anti-community conduct of members of the Louisville, Kentucky Police Department, as conducted in the aftermath of the shooting of Breonna Taylor in 2020 and the gathering of evidence of uses of excessive force, invalid searches, unlawful detentions, and racist behaviors.

In the midst of reports of anticipated state criminal prosecutions against Donald Trump, updates on some aspects of the federal investigations—focusing on the invocation of the “crime-fraud exception” to the attorney-client privilege to compel testimony by the lawyer of the former President; a rejection of “absolute immunity” for his incendiary statements on the Ellipse prior to the January 6 insurrection; and a similar rebuff by the Attorney General to new committee chairs in the House of Representatives seeking information about the status of on-going grand jury and other criminal investigations allegedly (and absurdly) “weaponizing” the federal government against conservative politicians and groups.

Tracking the always-developing efforts of state leaders to roll back privacy interests by further limiting access to reproductive rights, a report on the first legislative prohibition (in Wyoming) on the use of long-approved drugs in abortion procedures—along with updates on an expected, medical-related ruling by a federal judge in Texas and the “bookend” initiatives in states like Minnesota and Michigan to re-establish and preserve historically-embraced reproductive options. Finally, examination of the “dual sovereignty doctrine” permitting the federal prosecution of a defendant previously pardoned by a state governor; the significance of a warrant for the arrest of Russian President Putin (and one of his aides) for kidnapping and deporting Ukrainian children; and the similarly threatening behavior of the Mexican President in promoting and accomplishing a dramatic diminution in that country’s previously-independent commission overseeing and monitoring voting, elections, and the democratic process.

Beginning the last in a three-arc series focusing special attention on the actions and impacts of our Supreme Court is a brief examination of some of its historical and recent demographics—including the first Justices to diversify representation in the areas of race, gender, religion, and even age. Followed by reporting on the (still unaccomplished) creation and enforcement of a practical, meaningful ethics code for the High Court, the profound need for which is illustrated in recent conflicts challenges for Associate Justice Clarence Thomas and Chief Justice John Roberts—along with the still-unresolved leak of the draft opinion in Dobbs.

A major review and assessment of four recent instances in which the Court has refused or may decline to review lower court rulings on important issues—including pending challenges to the end of Trump-era Title 42 protocols (prohibiting the entry into the country of asylum-seekers during the pandemic) and to the decision of the North Carolina Supreme Court rejecting racially-gerrymandered maps (and raising the specter of the adoption of the legally and practically bankrupt independent state legislature theory). Additionally including this week’s directive to Arizona courts to review the sentencings of more death row defendants (based on failures to advise jury members of non-capital incarceration options) and a major declination to revisit a lower court finding that plaintiffs have standing to seek remedies for alleged violations of the Establishment Clause, based on the community presentation of a post-shooting vigil by local officials featuring religious prayers and music by police chaplains.

Looking into the immediate future of the High Court, anticipated oral arguments this month on Native American Indian water rights, intellectual property claims to the manufacture of remote controls and toys mimicking the style of a famous whiskey bottle, and alleged false statements by two major grocery stores in connection with their Medicare and Medicaid prescription reportings. Finally, revisiting the two landmark decisions of the Justices in Heller (2008) and Bruen (2022) effectively eviscerating the decades-old mechanisms for remedying discriminatory practices in voting nationwide—along with the legislative “fixes” to both cases that have been and remain available to our country’s elected leaders.

[N.B.: Next week, the broadcast coming live from the Wisconsin Grass Roots Network in south-central Wisconsin, featuring specially an inventory of recent, Wisconsin-centric, justice-related, rule of law events of state-wide importance.]

In this second of the three-arc series focusing special attention on the works and impacts of our Supreme Court—beginning with a brief historical review of some of the long-lasting traditions of it—the promised, extensive examination of two of the most important decisions in contemporary American history: Highlighting, first, the 2008 ruling (breaking with 200 years of precedent) that the Second Amendment to the Constitution establishes a right to possess and use weapons in the home for defensive purposes, and, second, the 2022 opinion extending that landmark ruling to our public venues and places of community congregation, vesting a right to carry weapons in those places without government authorization or legislative limitation. Even so, our discussion affirms the all-important language of both decisions affirming unequivocally that controls, restrictions, and other rational rules on the manufacture, sale, transfer, use, and other behaviors may be enacted and enforced in the paramount interests of safety and security; some of the most significant, experience-tested, constitutionally-permitted regulations to that beneficial end are also identified, explained, and enthusiastically encouraged.

Turning to the no-less-important developments at the High Court this past week, a note about two decisions issued—focusing on financial instruments under the Federal Disposition Act and compliance reports under the Bank Secrecy Act—and the procedural move by the Justices to review a major challenge to the legitimacy and operation of the Consumer Financial Protection Bureau (albeit in the next, 2023-2024 term of its activity). Then, at the core of today’s broadcast, an assessment of the monumental oral arguments of this week before the Court—testing whether the President’s $400 billion student loan forgiveness initiative, announced and pursued under the Congressional authorization of the Higher Education Relief Opportunities for Students (“HEROES”) Act, is a proper exercise of executive authority or one reserved for the legislative branch. That review and evaluation of the Justices’ reactions to the program, much of it skeptical, concentrates on what the Court has described as the “major questions doctrine,” coupled with a possibly initiative-saving invocation of party “standing” principles.

Finally, the decision not to resolve a dispute about the continuation of the Trump-era doctrine prohibiting the entrance into the country of asylum-seekers during the pandemic and an equally under-reported dismissal of a challenge to restrictions on public lands in New Mexico—a huge, precedent-setting win for environmentalists.

[N.B.: Next week, the conclusion of this SCOTUS-focused series, including the Chief Justice’s wrestling with overtly problematic ethics problems for his Court.]

[The First Segment in a Three-Part Arc Reporting on News of the High Court]

In a modest departure from the usual broadcast format, the initial presentation and analysis of the works and impacts of our Supreme Court—beginning with an exposition of its foundations in Article III of the Constitution and a review of its early history, including the seminal decisions establishing its authority to tell us all “what the law is.” Then, notice of three meaningful rulings announced this past week—in the areas of bankruptcy discharges, labor standards, and (with special emphasis) capital punishment and the obligations imposed on trial judges to tell juries about their options in making sentencing recommendations about life imprisonment without parole and state execution. (A decision in favor of the defendant in which, atypically, two conservative and three liberal justices agree.)

At the core of the discussion, a procedural ruling by the Justices to review and decide on the legitimacy of a criminal conviction of a Colorado man who posted on Face Book threats and other objectively offensive comments about a musician he was unmistakably stalking: The Supreme Court to decide whether the State is obliged to demonstrate by proof beyond a reasonable doubt that the actor actually intended to threaten—or whether the words themselves are sufficient to overcome the presumption of free speech otherwise guaranteed by the First Amendment. Tangentially related, particularized reporting from the two, major oral arguments conducted by the Justices this week—both cases focusing on whether internet and social media providers like Google, Twitter, You Tube, and Face Book are legally responsible for the admittedly catastrophic, lethal consequences of incendiary, indoctrinating posts of terrorist groups like the Islamic State (ISIL/ISIS). (Identifying the merits and demerits of holding public platforms liable under long-established anti-terrorism and communications laws passed by the Congress.)

Finally, the introduction to an in-depth analysis of two recent, geography-changing rulings by the Supreme Court, interpreting the Second Amendment to permit, first, the ownership and use of firearms for self-defense in personal residences, and, second, public (concealed and/or open) carry and discharge of weapons beyond the home. Premised upon the unmistakably horrific and unrelenting record of mass shootings in our nation, an examination of what the companion opinions in 2008 and 2022 do and do not say about what can be done to remedy this human crisis.

Beginning with an extensive review of some major, country-defining events on this day in American history (that continue to reverberate and impact our 21^st Century lives)—including the order by President Roosevelt to place in internment camps over 120,000 Americans of Japanese ancestry as the United States entered World War II against the Axis Powers. Then focusing on an equally extensive series of news items—all affirming, in ways direct and indirect, that the “Big Lie”—that is, that President Joseph Biden did not win the White House in 2020—is just that, a complete and demonstrable fabrication by former President Trump, his most strident (and deceptive) aides, other (equally manipulative) federal and state politicians, and at least one major news media outlet—all resulting in catastrophic damage to individuals, companies, government, and the very fabric of our nation.

Those series of reports include the stunning disclosure (in the context of a defamation lawsuit brought by the Dominion Voting Machines company) of irrefutable proof that the leadership and on-air “talent” of the so-called Fox News Network knew and appreciated fully that the last presidential election was not stolen but nonetheless continued to advance that illegitimate position in its broadcasts—for the purposes of maintaining viewership ratings and its financial status. Arguably the most significant stories of recent days, the recommendation by a special grand jury in Georgia that (unnamed) people be charged with election interference in that state, along with the “imminent” decision of the District Attorney there to charge those actors; the parallel pursuit by Justice Department Special Counsel Jack Smith of grand jury testimony of the former Vice President and former Chief of Staff in the federal investigation of the January 6 insurrection; the independent report of a Trump-hired research group, also finding no evidence of election fraud of any kind in any of the so-called “battleground states”; and (among the most curiously attractive news items) the apparent intention of the Proud Boys, now on trial in federal court for their seditious conspiracy to overthrow the election results, to call as a fact witness the former President himself—on the theory that it was Trump (and not them) who summoned the violent mob to the Capitol and is thus responsible for the melee that followed.

[N.B.: Reminding all program listeners of a very special series of Supreme Court-focused broadcasts—on Saturday, February 25, March 4, and March 11, updating the work of the High Court in anticipation of major decisions this coming Spring.]

Focusing on four major Rule of Law developments of this past week—beginning with the anticipated decision of a federal judge in Texas on whether a 22-year-old approval by the Food & Drug Administration of a well-tested and thoroughly reviewed abortion drug will stand, following the Supreme Court ruling last year eliminating a constitutional right to reproductive rights. Then an update on the continuing investigative and litigative work of the Justice Department in response to the assault on the Capitol—including the criminal sentencing of another defendant (among approximately 1000) for his active and violent role in the insurrection and the issuance to former Vice President Mike Pence of a subpoena to testify before a federal grand jury hearing evidence about the activities of high-level officials and aides in attempting to undermine the 2020 election results.

In the other component of the prosecutorial assignment to Special Counsel Jack Smith, analysis of the recent consent search by the Federal Bureau of Investigation of the Indiana home of the former Vice President for additional classified or other improperly removed government documents—and the all-important revelation that some confidential information at the Mar-a-Lago residence of former President Trump had been electronically copied onto a laptop computer of an aide (the first confirmation of some use or transfer of materials beyond their mere storage).

In yet another illustration of the deterrent (both specific and general) effect of federal criminal prosecutions, the announcement of grand jury indictments against two defendants for their (unsuccessful) attempt to attack the infrastructure grid providing power to Baltimore and surrounding Maryland areas—as a means of intentionally destroying the safety, security, and well-being of millions of potentially affected residents and businesses. Today’s broadcast also highlighting the legacies of two American lives well-lived—namely, that of much-heralded composer, songwriter, and producer Burt Bacharach and of Wisconsin-based lawyer, Rule of Law promoter, public servant, and civil rights advocate Bill Hotz.

[N.B.: Also announcing a forthcoming special series of broadcasts—on February 25, March 4, and March 11, revisiting the contemporary trappings of the Supreme Court, highlighting major contemporary decisions that continue to affect American life in the 21^st Century, and examining recent ethics issues involving the Justices.]

Observing (among other, important Rule of Law events at this time in our history) the 20^th anniversary of unfounded and misleading representations by a former Secretary of State about Saddam Hussein’s purported possession of “weapons of mass destruction” –leading to the invasion of Iraq and, three years later, my own volunteer assignment as the Justice Attaché and a Rule of Law Coordinator there, working with and training a new generation of judges, police, and prison officials in the liberated but still monumentally challenged Republic. Back at home in contemporary America, in the wake of another FBI search of the vacation residence of the current President, an explanation of the differences between a cooperation-inspired consent search and a judicially-ordered search, premised on a finding of probable cause that evidence of a crime exists at a targeted location.

Among other current events inspiring examination of our justice system and the participants in it, reporting and analysis of a stunningly baseless decision by the United States Court of Appeals for the Fifth Circuit, finding (contrary to a quarter century of law) that a domestic violence abuser may lawfully possess and use firearms under the Second Amendment; an international release from among more than 30 detainees still at the U.S. Naval Base in Guantanamo Bay of a formerly violent terrorist, who ultimately cooperated with government prosecutions of others but whose inhumane and illegal treatment at the hands of CIA and related jailers warrants continuing condemnation; and the forward progress of a federal wrongful death action by the father of one of the two men killed by Kyle Rittenhouse in the community protests of August 2020 in Kenosha, Wisconsin.

Concluding with a (highly appropriate) ruling of the United States Court of Appeals for the Third Circuit, finding that well-funded Johnson & Johnson cannot use the jurisdiction of the United States Bankruptcy Courts to protect and shield it from civil claims of people alleging physical harm from their use of talc products from the medicinal producer-distributor; the shocking reporting of the indictment and arrest of a former counterintelligence supervisor-official of the FBI for working with and being paid by a Russian oligarch that the federal domestic agency was investigating for serious crimes against the United States; and the move by the Manhattan District Attorney to pursue the criminal investigation of pre-presidential candidate Donald Trump for violations of New York state law in his payment of “hush monies” to women with whom he secretly had affairs.

Devoting a full hour to exposition, analysis, understanding, and reaction to the tragic and horrifying murder of Tyre Nichols by five Memphis Police Officers in early January—including a graphic review of four videotapes of the stops, apprehensions, assaults, and beatings that led to the appropriate firings and state charges. Embedded in that examination, a prediction of Justice Department involvement in both a criminal civil rights prosecution and a “pattern and practice”-type review of systemic policing failures. Finally, in answer to the legitimate question “What can I do?”—a two-fold recommendation: Support of and demand for congressional passage of the George Floyd Justice in Policing Act (stalled in the 117^th Congress and to be re-introduced in the 118^th) and universal and practical training of all newly-recruited and tenured law enforcement in the constitutional trappings of use of force, arrest procedure, and community engagement issues relevant to effective, service-based policing in the 21^st Century.

Another week of diverse but important developments in our continuing attempts to make sense of, learn lessons from, and remedy the criminal and conspiratorial behaviors that prompted the insurrection and attack on the Capitol on January 6, including: The most recent convictions of Oath Keeper defendants for seditious conspiracy—following the previous convictions of other leaders of this white nationalist anti-government group and in the midst of the continuing trial of other leaders of the Proud Boys, similarly charged in the federal district court in Washington, D.C.; the 80-month sentencing of the attacker who brutally assaulted Brian Sicknick one day before his untimely death; the impending trial of former White House Trade Advisor Peter Navarro on two counts of contempt of Congress; and—perhaps most important—the “impending” decisions of the Atlanta-based District Attorney about charging ex-President Donald Trump and his aides for attempting to subvert and undermine the 2020 election results in Georgia.

Finally, during this term at the United States Supreme Court—the first major decision dismissing a claim for disability benefits made by a veteran whose petition was untimely—along with a stunning (ethics-invoking) revelation about former Homeland Security Secretary Michael Chertoff, who placed his imprimatur on the failed investigation into the premature leak of the Dobbs abortion decision, even as he was receiving $1 million from the Court for providing security recommendations and other contracted services for the Justices and their families.

Beginning the discussion with a review of our constitutional right to privacy, as first articulated clearly in 1965 and reaffirmed broadly until 2021, when the Supreme Court of the United States not only rescinded nearly 50 years of access to abortion but also placed in jeopardy many other fundamental privileges and prerogatives in the areas of personal relationships and private decision-making. And among the over 50 important cases now awaiting rulings from the High Court, two set for oral argument next month—both focusing on the liability of social media service providers for the false, misleading, incendiary, and indoctrinating posts of its users; all of this as the SCOTUS Marshal announces the curiously stunning results of her failed attempt to identify the court official who released the non-public draft of the landmark decision in Dobbs v. Jackson Women’s Health.

Among the body of other legal-government news of this past week, the continuing civil defamation prosecution of Dominion v. FOX News, based on the latter’s knowingly false reporting on the involvement of the former in the election of 2020; another interesting evidentiary ruling in the federal criminal prosecution of the Proud Boys for their direction of and seditious conspiracy in the January 6 attack on the Capitol; and the latest scathing rebuke of Donald Trump by a federal judge imposing a $1 million fine on him and his attorney for starting an overtly frivolous and factually unfounded case against his political rivals and adversaries.

In the arena of violent crimes, a review of the arrest of an unsuccessful Republican candidate for New Mexico state office charged with violent firearms attacks at and on the homes of elected Democratic leaders; the decision by the Attorney General of the United States not to seek the death penalty in the hate crimes murders of 23 people committed by the gunman at the El Paso Walmart in August of 2019; and accounts from the Georgia criminal trial of rapper Young Thug for RICO and other wildly violent crimes—now likely exacerbated by the distribution of Percocet in the courtroom itself and the atypical penalty imposed by the presiding judge on a prospective juror who chose not to return to the courtroom, acting in contempt of the proceedings and compromising the foundations of our Rule of Law system.

With the headlines-grabbing news this week of the discovery of classified documents in the former office and current home of the President, a legal analysis of what we know and what we don’t, including the critical investigative questions in this (and any other “intent-focused”) inquiry—all affirming the fundamental notion that no one is above the law. That review leads necessarily to an early evaluation of the significant factual and legal differences between the Biden file and the Trump matter, focusing on the former President’s taking and retention at Mar-a-Lago of thousands of documents, about 100 of them classified in nature. Adding to Donald Trump’s broad circle of litigation and other legal challenges, a summary of his recent deposition testimony in the defamation lawsuit brought against him by E. Jean Carroll; the revelation that former senior advisor Rudy Giuliani has been subpoenaed by a federal grand jury, perhaps in connection with its investigation of the Trump-founded “Save America Pac”; the status of and important developments in the criminal trial of the Proud Boys for their involvement in the January 6 insurrection; and the parallels to the investigation of former Brazilian President Jair Bolsonaro for his possible criminal incitement of the recent mob attack on legislative and other government offices in Brasilia.

Returning to the all-important landscape-changing activities of the United States Supreme Court, at least three notable events this past week—namely, the (interim/non-final) decision of the Justices not to overturn the decision of a lower appeals court, upholding a newly-enacted New York law imposing restrictions on the open/public carry use of firearms; the refusal of the High Court to overturn the dismissal of an action by a private citizen against Members of Congress, alleging that they stole his vote by identifying President Biden as the winner of the 2020 election; and the identification by SCOTUS of eight additional cases for its review in this judicial term. Among those, yet another case testing the scope and breadth of religious rights (under Title VII of the Civil Rights Act and the First Amendment) when matched against the legitimate operational requirements of government business—this one, involving a former postal worker who sought a special accommodation to be released from work on the Sabbath (Sundays).