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TODAY'S HEADLINES (click to jump there; use your browser's "Back" button to return here)
      •  Aaaaand... We're Back
      •  Bannon Looks to Be in Trouble...
      •  ...And So Does Graham
      •  Gaetz' Former "Wingman" Gets Sentencing Date
      •  PPP Was P.U.
      •  Johnson Will Be Out on September 6
      •  The World's Courts, Part I: Germany and Austria

Aaaaand... We're Back

After a break that was briefer than expected, due to the surprise session with Cassidy Hutchinson, the 1/6 Committee will resume its public hearings today at 1:00 ET. There will also be a prime time session on Thursday.

The various members of the Committee have already previewed what they plan to cover today. Part of the time will be devoted to documenting links between TrumpWorld and far-right extremists, and in particular arguing that the participation of groups like the Oath Keepers and Proud Boys was knowingly and deliberately encouraged by the former president. It is not clear if any members of those groups, many of whom have already struck plea bargains, will be there to speak in person. If so, it will be the most extraordinary collection of bigotry and white grievance that the halls of Congress have seen since the insurrection, excepting those occasions when Rep. Marjorie Taylor Greene (R-GA) dines alone.

There will also be time given over to (presumably recorded) testimony from former White House counsel Pat Cipollone. It's not clear if the far-right extremists and Cipollone's account of events are scheduled for the same day because the Committee plans to make a connection between the two, or because there are only so many days available for hearings. Our guess is that the two segments will be distinct, since it's already been announced that there will be two Committee members "leading" the hearing: Reps. Stephanie Murphy (D-FL) and Jamie Raskin (D-MD). Normally it is just one, so it's probably the case that one of them (likely Raskin) will handle the right-wing extremist portion and then hand it over to the other to handle the Cipollone portion.

Speaking of Cipollone, he sat for 8 hours of testimony on Friday, and according to Murphy the Committee got "a lot of relevant information from him." Cipollone did assert executive privilege a few times, but was otherwise reportedly quite frank in his answers. Of course, we'll all get to judge for ourselves today.

It has also leaked out that, at some point in the near future, the Committee will hear from former deputy press secretary Sarah Matthews. Like Hutchinson, she's twentysomething, not particularly loyal to Trump, and was often a fly on the wall during high-level conversations. Matthews sent out these two tweets after Hutchison's appearance last week:

That's probably a pretty good preview of the vantage point from which Matthews will approach her testimony. There is a possibility that she will also be on the agenda today, though she could be a part of Thursday's prime time extravaganza, or she might be held until next week.

We'll also note here that The New York Times had an interesting piece on Hutchinson, and why there was such a rush to get her on the stand. Two of the reasons we guessed back when the announcement was made last week: (1) The Committee was nervous about all the pressure on her and (2) The Committee feared that some of her testimony might leak. There was also a third reason, however, and that is that Hutchinson and Cheney have developed a very friendly relationship, and jointly decided that it was best for Hutchinson that she testify sooner rather than later. Never forget that these folks are people too, and that their decisions are often informed by things other than the public chess game that we can all see.

Anyhow, tomorrow we will have our usual rundown of the hearing—same bat time, same bat channel. If you want to watch for yourself, all the cable news channels are carrying it, and the 1/6 Committee always streams the hearings on its YouTube channel. (Z)

Bannon Looks to Be in Trouble...

As we noted yesterday, former White House Advisor Steve Bannon had a come to Jesus moment this week, and decided that he would be happy to talk to the 1/6 Committee, after all. His epiphany may just be related to the fact that he's scheduled to go on trial for contempt of Congress on Monday of next week.

In the item yesterday, we guessed that Bannon's newfound love of teamwork would not forestall a trial. And we were proven correct. Monday afternoon, U.S. District Judge Carl Nichols made clear that the trial is not only still happening, but that it will happen precisely as scheduled, and that Bannon would not be granted the 3-month postponement he was asking for.

And, from Bannon's perspective, that wasn't even the worst of it. The soon-to-be-defendant did not bother to show up for yesterday's hearing, which strikes us as a poor choice, as it's kind of insulting to the judge and to the process. In any event, only his attorneys were there to hear it as Nichols went through the list of defense arguments that he will not accept. He will not accept claims of executive privilege, nor will he accept that Bannon was just following the advice of counsel, not will he allow extraneous information to be introduced into the proceedings.

As a result of the judge's rulings, the prosecution now has a pretty low bar to clear—they just have to show that Bannon willfully defied the subpoena. This shouldn't be too hard, since he went on his podcast and bragged about doing so. Meanwhile, the only real defense he's got left is that he misunderstood the dates on the subpoena he received from the 1/6 Committee. Again, given the bragging done on the podcast, that's not going to be a very believable argument if Team Bannon tries it.

If Bannon were a normal person, this would be the time for his attorneys to call the U.S. Attorney's office to inquire about a plea bargain. But he's not a normal person, so we haven't the faintest idea what he'll actually do. It's possible that he'll follow the lead of his sugar daddy and try to tie the process up for years and years, hoping that the sweet, sweet release of death comes before there's a resolution. Or, he might decide it's every man for himself and turn state's evidence. We just don't know. (Z)

...And So Does Graham

Like Steve Bannon (see above), Sen. Lindsey Graham (R-SC) is also under subpoena right now. Of course, Bannon's came from a House committee, whereas Graham's came from Fulton County DA Fani Willis. So, there is a difference there. However, the Senator, despite being a lawyer and a former JAG officer (and, arguably, a current JAG off), seems to have overlooked this difference. When he got the subpoena, he lambasted it as "politics" and declared that he would not abide by it.

It is all one thing to lambaste a House committee's subpoena as politics and to refuse to comply. Heck, in that case, it might actually be politics that's driving the process (see, "But her e-mail!"). And there are so many steps in the process of enforcing a House subpoena (the House has to vote, then the DoJ has to decide to get involved, then the federal courts have their say, etc.) that maybe it makes sense, in some cases, to roll the dice and extend the middle finger. Heck, it's worked so far for former chief of staff Mark Meadows. Although it hasn't worked for Bannon (again, see above).

In any case, a lawful subpoena issued by a grand jury is a very different kettle of fish. Political or not, such a subpoena is plainly enforceable, and the number of deciders involved isn't in the hundreds, it's one person, namely the judge who signed the subpoena. And yesterday, Fulton County Superior Court Judge Robert McBurney decreed that Graham is a "necessary and material witness" to the investigation being conducted by Willis, and warned that the Senator bloody well better be in court on August 2, as ordered.

We must concede, as with Bannon, that we really have no idea how Graham will play his hand. If he ignores the subpoena, he'll be fined (and he's not independently wealthy) or arrested, or both. Those are all bad outcomes for him. If he shows up to testify, Graham can try to save his own neck and throw Trump under the bus, at the risk of implicating himself in a crime and also alienating a lot of Republican voters. Or, he can plead the Fifth over and over, which would look very bad, and would mean that the Senator would not be able to begin planting the seeds for his potential defense.

If we absolutely had to guess, then our guess would be that—faced with limited options—Graham will try to argue that his phone calls to Georgia Secretary of State Brad Raffensperger (R) were covered by the speech and debate clause of the Constitution:

[Members of Congress] shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place.

If Graham does try this, it will be a pretty crappy argument. He clearly was not in attendance in the Senate chamber, or en route to a session, when he twice got Raffensperger on the phone. Nor was the Senator doing anything remotely related to his work as a legislator. Oh, and the Supreme Court has already ruled on this exact question. In Gravel v. United States (1972), the Court's decision said that the speech and debate clause does not "immunize a Senator or aide from testifying at trials or grand jury proceedings involving third-party crimes where the questions do not require testimony about or impugn a legislative act."

Judge McBurney anticipated this line of attack and, in the ruling he issued yesterday, made clear it's not going to fly. So, if Graham does try it, he may buy himself a little time, but not much, and at the expense of pissing off an already angry judge. The bottom line is that the South Carolinian has really painted himself into a corner. And there is no obvious way out of it. (Z)

Gaetz' Former "Wingman" Gets Sentencing Date

Sorry, this is kind of a run of stories about sleazy behavior by Republicans. Not our favorite thing to write about, but we must go where the news leads us. And so, we conclude the run with some news about Former Seminole County Tax Collector Joel Greenberg. He is the fellow who allegedly helped Rep. Matt Gaetz (R-FL) procure underage women, and to transport them across state lines. This is in addition to all manner of crimes that Greenberg perpetrated to benefit himself, of course. And yesterday, it was announced that, after numerous postponements, Greenberg will finally be sentenced on December 1 of this year.

We mention this story for two reasons. The first is that Greenberg was caught red-handed, such that he agreed to plead guilty and to turn state's evidence. The scandal first emerged in early 2020, he resigned his office in June 2020, he reached a plea deal in April 2021 and he formally pleaded guilty in May 2021. Yet, he won't begin serving his sentence until late 2022 or early 2023. And again, this is someone who was so guilty that he pleaded out (admittedly, also someone who has been giving the feds useful information throughout this time). Anyhow, the point here is that it takes a long time for the process to play out, especially if the defendant is fighting back with everything they've got. So, if you are wondering what's taking so long for, say, Donald Trump to face the music, well... patience, young grasshopper.

The second reason we mention it is that no more sentencing postponements presumably means that Greenberg has spilled whatever dirt he's going to spill. That means that if Gaetz is going to be indicted, it's probably going to happen pretty soon. This is especially true since both state and federal prosecutors try to avoid interfering with elections. The general guideline is "no activity within 80-90 days of an election." It is 120 days until the midterms, so for the next month or so, the Representative should be very nervous. (Z)

PPP Was P.U.

The Federal Reserve (specifically the St. Louis branch) has taken a long look at the COVID-19 Paycheck Protection Program and issued a report about its findings. If you tend to be angered by stories about government waste, you might want to stop reading and skip to the next item, because the Fed's conclusion is that not all that many paychecks were actually protected. Of the $800 billion that was dumped into the program, only $200 billion found its way into the pockets of working people. And, in the majority of those cases, it was fairly high-earning people and not, say, minimum wage workers. The rest of the money went to other business expenses, including paying suppliers and creditors, making capital improvements, and fattening owners' bank accounts.

How did things go so wrong? The Fed report does not delve into that, but we can offer up four potential explanations:

  1. The federal government just isn't very capable of administering programs like this.

  2. The federal government is capable of administering programs like this in general, but struggled to do so under the time pressure imposed by the pandemic.

  3. The Trump administration, which was tasked with administering the program, was incompetent.

  4. Then-Senate Majority Leader Mitch McConnell (R-KY), Machiavellian schemer that he is, recognized an opportunity to funnel more than half a trillion dollars to business owners while at the same time kvetching about wasteful social spending. A twofer!

We don't know which it is, those are merely the possibilities that occur to us. Ultimately, the Fed concludes that the goals of the program were good and were necessary, but that the execution could have been better. That's certainly in the running for understatement of the year. (Z)

Johnson Will Be Out on September 6

Outgoing British PM Boris Johnson is, by all indications, a pretty slimy fellow. We assume we're allowed to say that; indeed, we have the impression that even Johnson's admirers and associates would tell you he's pretty slimy. We are reminded of the Star Trek: The Next Generation episode "The Vengeance Factor," where one of the characters declares: "You don't like me, do you? No problem! I have many friends who don't like me!"

Anyhow, because BoJo is slimy, he resisted stepping down from the premiership long after any other PM would have fallen on their sword. And once he finally bowed to the inevitable, there was still some speculation that he might try to find a way to remain in power. Even his fellow Conservatives were worried, it would seem. So, they have now reached a consensus that the election for the party's new leader will be held on September 5. The winner will take over as PM the next day, and with that, Johnson will be cut off.

There has already been much polling of the Conservative leadership election, such that it is already clear that... nobody knows what's going to happen. With 11 candidates declared, another half dozen likely to jump in, a wonky electorate, and a somewhat wonky election procedure, the polls are all over the place. Minister of State for Trade Policy Penny Mordaunt, former Chancellor of the Exchequer Rishi Sunak, Foreign Secretary Liz Truss and MP Ben Wallace appear to be the frontrunners, and that's despite the fact that Wallace has already said he's not running.

There's an old football saying that if a team has two quarterbacks, it really has none (since that means the team doesn't have one QB good enough to "own" the starting job). Similarly, the Tories would seem to have such a large number of potential candidates primarily because they don't have one really good candidate. And in a situation like that, anything could happen. Heck, we're not even quite ready yet to count BoJo out. It seems that it would take a miracle for him to stay in office, and yet, he pulled off a miracle by getting elected in the first place. So, he's clearly got that particular power in his bag of tricks. (Z)

The World's Courts, Part I: Germany and Austria

Back on July 2, reader J.M. in Anaheim wondered if other countries have something like the U.S. Supreme Court, specifically in reference to the ability to strike down laws. We got a great many responses on the subject, covering various nations, and through the rest of this week, we're going to run a bunch of them. Up first, as you can see from the headline: Germany and Austria:

F.S. in Cologne, Germany: In Germany, the most powerful court is the Federal Constitutional Court ("Bundesverfassungsgericht" in German). It can declare any legislation or executive action unconstitutional. It has also the power to ban extremist parties if they seek to "seek to undermine or abolish the free democratic basic order. So it's a very powerful court, which is probably a reaction to the Third Reich, when the Nazis passed such horrible laws like the Nuremberg Laws. But the Federal Constitutional Court is not really partisan and highly respected by the German population, which is a major difference from SCOTUS in 2022.

F.R. in Berlin, Germany: The Federal Constitutional Court of Germany has, in fact, the power to strike down federal and state laws and, on top of it, to impose alternative legal language as an interim solution, whenever it decides that a certain law cannot stand, but a replacement is needed (e.g., to provide a framework for an upcoming election). I have the impression that the partisan leanings of the 16 judges are rarely discussed in connection with a certain decision. Why is that the case? Possible factors include:

  • The major and minor parties have agreed to nominate judges alternatingly. As the term of a judge is 12 years, without the possibility of renomination, each party knows when it can have a bite of the apple.

  • The judges are elected by the federal Parliament, the Bundestag, and the chamber of state governments, the Bundesrat, alternatingly.

  • The court is divided into two courts—in German, "Senate"—that distribute the cases that are coming up according to a formula of their own design. The complete court is rarely acting as a whole.

  • The law concerning the composition of the court states that three of the eight judges in each Senate must have served in the higher ranks of the federal courts.

It seems that the law and the political practice of post-war Germany have worked against turning the highest court into a part of the political arena. If, however, one party should decide to play more explicit games with the court, it could cause some damage.

E.B. in Hanover, Germany: While the German Federal Constitutional Court was modeled in no small part on the Supreme Court of the United States (in particular with its ability to strike down laws it deems unconstitutional) it has (in my view as a non-lawyer) more often than not propelled progress and has in particular tried to accommodate changed perceptions of the public. For example, quite recently it has interpreted into a pretty vague article in the Basic Law (our constitution) the obligation of the government to introduce legislation to (even more fully) combat climate change, based on the article's requirement to protect the "natural basis of life."

When conservatives tried to block same-sex civil unions in 2001, the Court declared that because civil unions are not marriages, there is no problem. In 2017, when we introduced same-sex marriages, the Court did not see a problem with this either, most probably because perceptions in the public on what "marriage" means had begun to change. On the other hand, regarding abortion, while the Court has more or less stated that life begins with conception and thus stroke down an abortion law it felt had put too little weight on that approach, it basically pre-formulated a compromise which it would accept: Today, elective abortion is not actually lawful but no one involved will be prosecuted if certain (not trivial but arguably not too burdensome) conditions are fulfilled. This seems a good compromise, because nobody is positively happy with it, but it has basically settled the matter.

The Court has a very high reputation, which may be connected to their judges (who retire after twelve years on the bench or reaching age 68) being elected by a two-thirds majority in either the Federal Diet or the Federal Council. So, to the extent there are hardliners or extremists among German jurists, they usually just don't manage to arrive at the Court.

D.M. in Berlin, Germany: Judicial review must exist in a country ruled by the law. If a legislature can pass unconstitutional laws and nobody can do anything about it, then the constitution is purely ornamental, and you have a tyranny of the majority. I'm not sure if the Founders' decision not to explicitly mention judicial review in the Constitution was a gigantic blunder (like apparently believing parties would never form if they weren't mentioned) or just another case of not spelling out the obvious.

Dedicated constitution courts that do little else than decide if a law is unconstitutional (and void it if it is, usually with a grace period for the legislature to repair it) are part of the standard-issue package for democracies. I was surprised to learn recently that either my native Austria's constitution court, established only in 1919, or the one of what was then Czechoslovakia, was the first such court worldwide. But, then, there were very few democracies worldwide before late 1918. The Austrian one has a rather detailed Wikipedia article in English. I think the following features are notable from a U.S. perspective:

  • The Constitution Court decides whether a complainant's constitutional rights have been violated; this includes reviewing legislative acts and judicial demarcation conflicts. It is not a court of appeals. It is distinct from the Supreme Administration Court (which reviews administrative acts) and a court somewhat misleadingly called "Supreme Court" (the final court of appeals for matters outside the purview of the other two supreme courts, among other things).

  • For a country the size of Taiwan with the population of New York City, the Constitution Court has 14 members and 6 substitute members. It is not allowed to pick and choose which cases it wants to consider. In practice, most cases are decided by a panel of 5 or 9 members (the legal minimum in different cases) to allow the court to cope with its workload. Further keeping in mind the currently 61 members of the "Supreme Court" and the currently 67 members of the Supreme Administration Court, I find it rather sad that proposals to enlarge the SCOTUS to only 15 Justices are still at the fringe of the Overton Window.

  • Neither concurring nor dissenting opinions are published, only actual decisions. How individual members voted is not published. Individual members, including the president of the court, are practically never mentioned in the media. Their names are not widely known. If they have knowable political leanings, those are only known to specialists.

  • There is a mandatory retirement age of 70 years.

  • Some of the members, including the president and the vice president, are nominated by the cabinet, others by the national chamber of parliament, others by the federal chamber. They are then confirmed by the directly elected president of the republic, an inversion of the U.S. method.

  • Nominees must have spent at least 10 years in a profession that requires a law degree. Those nominated by the cabinet specifically need to be judges, career civil servants in administration, or professors.

  • Nominees must not hold an office in, or be employed by, a political party. If appointed by mistake, they are automatically removed when this is discovered.

  • Like the public-owned broadcasters, the Constitution Court is "depoliticized by politicization": the two largest political parties have agreed to let each other have half the seats, so no party ever has a majority. It works; the court has a reputation for independence and restraint.

  • If the legislature doesn't like a verdict, it can make a "minor" amendment to the constitution by 2/3 majority if appropriate. "Major" amendments require a referendum.

  • The most spectacular thing the Court has ever done was to order a repetition of the runoff of the presidential election of 2016. It agreed with the plaintiff/supposed loser of the first attempt that 77,000 absentee ballots had been counted too early or by the wrong people, and preliminary partial results had been given to media too early. As a consequence of such illegal sloppiness, it was mathematically possible for the close result to show the wrong side winning. In its verdict, the court stressed that there was no evidence of any deliberate malfeasance, and indeed the suit hadn't even argued that there was; nevertheless, the fact that the sloppiness could have been enough to flip the result meant that the election had to be voided and repeated in the entire country. It was repeated, the supposed loser of the first attempt lost by a larger margin, and there have been no complaints ever since.

  • If a verdict of the Constitution Court is ignored (one cabinet tried that recently), the president, who is not part of the branches of government, can send the army to execute the verdict. (The threat was enough to make the cabinet comply.) In the U.S., there doesn't seem to be anybody who could be trusted with that power because the POTUS is the head of the cabinet like the Austrian chancellor...

B.S. in Hafnarfjordur, Iceland: As a practicing lawyer in a European country with a decent knowledge of the Scandinavian and Germanic legal systems I think I can chime in. The judiciary in these countries does have the role of interpreting legislation and occasionally evaluating the constitutionality of laws. Germany even has a special constitutional court for the sole purpose of answering questions about the constitutionality of legislation. This process is known as judicial review, but it is applied much more conservatively than in the United States.

I think a lot of this comes down to the constitutions themselves being very different. The U.S. constitution is very old, very short, pretty vague and intentionally very hard to amend. Most European constitutions are much younger (The German "Basic Law" is from 1949), much more detailed about particular rights (and limitations of rights!) and they are easier to change (the whole section on civil rights in the Icelandic constitution was rewritten from scratch in 1995). There is just a lot less interpretive space with these documents than the U.S. Constitutions for judges to get creative. This question also can not be separated from the political system itself. The U.S. federal system, with its various checks and balances, such as a strong executive office and a strong upper chamber of Congress, makes it uniquely hard to pass legislation when compared to countries with a parliamentary model of government. Perhaps that makes an active judiciary more acceptable, as the other branches of government are frequently stuck in deadlock.

Very interesting! Up tomorrow, we'll do some island nations. No reason for that, mind you; we're not implying that island nations have fundamentally different legal systems than non-island nations. (Z)

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---The Votemaster and Zenger
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