Trump-appointed federal judge authors appellate opinion that leads to grant of immunity for Missouri cop who fatally shot a black man in the back

Ryan Stokes and his daughter

 

As yesterday's presidential election wound down, it was unclear if Americans were finished -- let us pray -- with Donald Trump's nightmarish "Reign of Error." But this is clear: We will be living with his wretched appointees to the federal bench for decades to come.

Take a fellow named David Stras -- please! Stras appears to be loyal to the far-right Federalist Society, of which he has been a member since 2003. But a case that originated in Missouri suggests his loyalty to he rule of law is not so clear.

Stras, a Donald Trump-appointed federal judge, has written an opinion that essentially forced a lower court to reverse its earlier ruling and find that a Kansas City, MO, police officer enjoyed immunity for  fatally shooting an unarmed black man in the back.

Stras, appointed by Trump to the Eighth Circuit Court of Appeals in 2017, wrote the opinion for a three-judge panel, and it appears to conflict with established law for making determinations about immunity at the summary-judgment phase of a federal lawsuit. To make an ugly case even uglier, published reports indicate police officials lied about central elements of the case -- and even granted two officers (William Thompson and partner Tamara Jones) awards for their actions before later rescinding them.

The court case -- N.S., et al v. Kansas City Board of Police Commissioners, et al (8th Cir., 2019) -- grew from officer Thompson's fatal shooting of Ryan Stokes on July 28, 2013, in the Kansas City Power and Light District. N.S. is the only child of the decedent, and co-plaintiff Narene James is his mother. Here is how flatlandkc.org, in a 2015 article, describes events of that evening:

After midnight on July 28th, 2013, Ryan Stokes and Ollie Outley drove in Outley’s red Monte Carlo to the Power and Light District. They parked off of McGee St., which runs north and south between 12th and 13th streets.

Outley drove.

There they met up with friends and spent the next two hours walking the perimeter of Power and Light, hanging out, and talking with acquaintances. Friends describe the group as being in good spirits, having a good time.

At 2:30 a.m. when the bars closed, patrons poured out onto the sidewalks. Stokes stood with Outley and others, all of whom are African-American, at the corner of 13th Street and Grand Blvd.

A group of five white males, including Jordan Miller, 21, emerged from a nearby bar at Power and Light.

Miller would later tell police he and his friends were extremely intoxicated.

“Hammered,” a friend told police.

They looked for a taxi cab big enough for all five, when Miller realized he had lost his cell phone. He accused Outley of taking it.

While Miller acknowledged later that he thought he must have dropped the phone on the sidewalk– and that he had never physically seen Outley holding his phone–he accused Outley at the time of taking it.

Miller yelled at Outley to give him his phone back. Outley denied having it. A shouting match ensued.

As the altercation escalated, surveillance video shows Stokes stepping in to act as peacemaker. No punches are thrown, but the yelling and shoving attracts the attention of Police Officer Albert Villafain.

Villafain, who was working Bike Patrol that evening, called for order. When the fight continued, he pepper sprayed the crowd, and people took off in all directions.

According to Outley and other witnesses, pepper spray got into Outley’s eyes. He gave the keys to his Monte Carlo to Stokes and told him to go get the car.

Video surveillance shows Stokes and his friend, Kenneth Cann, jogging east up 13th St. towards McGee St. and the parking lot.

The video shows both of Ryan Stokes’ hands, and they appear to be empty.

According to police reports and surveillance video, Jordan Miller starts following Stokes. He then tells Villafain that Stokes or someone with him took his cell phone.

Villafain asked Miller if he could make a positive identification of the thief. Miller said he could. Villafain signaled another Police Officer, Daniel Straub, to assist in the pursuit of the two suspected phone thieves.

All three took off after Stokes.

The pursuit ended when Stokes reached a parking lot, encountered officer William Thompson, and opened the door to his friend's Monte Carlo. Thompson fired three shots, hitting Stokes twice in the back. The Stokes family, represented by Kansas City attorney Cynthia L. Short, sued for excessive force under federal civil-rights law and wrongful death under Missouri state law.

Officer William Thompson and his partner, Tamara Jones

At the trial-court level, Judge Brian Wimes (Western District of Missouri) denied immunity for Thompson and his police co-defendants. They sought review at the Eighth Circuit, where immunity issues properly can be considered on interlocutory appeal. They found a welcoming set of ears from the Stras panel, which overturned Wimes' ruling and remanded the case to the Western District, where Wimes had little choice but to write a second opinion, this time granting immunity to the cops.

By all accounts we've found, it was a chaotic scene on the night of Ryan Stokes' death. Here are the uncontroverted material facts, as stated by both the trial and appellate courts:

Officer Thompson is a KCPD police officer, employed by the Board, who has been a KCPD officer for more than 20 years. In the early morning hours of July 28, 2013, Officer Thompson and his partner Officer Tamara Jones were on foot patrol in the parking lot located at McGee and 12th Streets in Kansas City, Missouri. Officers Thompson and Jones were assigned to clear the lower parking lot along the west side of Grand Boulevard between 12th and 13th Streets. Eventually, Officers Thompson and Jones moved to the upper level of the parking lot where the shooting at issue occurred.

Over dispatch radio, Officer Thompson heard from Officer Albert Villafain that a foot chase was headed in his direction. Officer Thompson heard the description of two suspects (black males wearing white T-shirts and shorts), the direction of the two suspects' travel, and the crime that had allegedly been committed, which was stealing. Seconds after Officer Thompson heard this information over the radio, he saw a black male, wearing a white T-shirt, come running around the corner of a building in the parking lot. This individual was Ryan Stokes.

At the time of the incident, Stokes held his right hand closed, in front of himself, at waist level. Stokes jogged in Officer Thompson's direction, toward a red Monte Carlo that was parked just past the corner of the building in the parking lot. Stokes held his hands and arms close to his body as he ran, with his elbows bent, stationary, and close to his body.

Officer Thompson testified he saw a gun in Stokes' right hand, and Stokes looked at Officer Thompson and knew of his presence. Officer Jones testified she did not see Stokes with a gun, but she did not see Stokes' hands. Liberty, Missouri Police Officer Greg Powell testified he did not see a gun in Stokes' hand, but it was dark, and he could not see Stokes' hands. KCPD Officer Gregory Williams testified he did not see Stokes with a gun or anything that would have appeared as a gun. KCPD Officer Straub testified he did not see Stokes with a gun, but he also did not see Stokes' hands. Other witnesses testified Stokes was holding up his pants. Other witnesses testified they did not see Stokes with a gun at any point earlier that evening, including immediately before Officer Thompson saw Stokes.

Officer Thompson pointed a gun at Stokes as Stokes ran to the driver's side door of the Monte Carlo. Stokes' back was to Officer Thompson, at which point Officer Thompson could not see Stokes' hands. Stokes stepped away from the door of the vehicle. In his peripheral vision, Officer Thompson saw another police officer running around the same corner of the building around which Stokes had run. Stokes ran in the direction of the approaching officer, Officer Straub. Officer Straub saw Stokes stepping away from the Monte Carlo, and believed Stokes was obeying Officer Straub's commands to stop running and show Officer Straub his hands.

As Stokes moved away from the Monte Carlo, his back was to Officer Thompson, who could not see Stokes' right hand. However, Officer Thompson believed Stokes was armed and intended to ambush and shoot Officer Straub.

Officer Thompson shot Stokes from behind, and saw Stokes fall to the ground. Officer Thompson stopped shooting once he saw Stokes falling. About seven to ten seconds elapsed between when Officer Thompson saw Stokes and when Officer Thompson shot Stokes. Stokes was unarmed at the time of the shooting.

Thereafter, a gun was discovered on the driver's seat of the Monte Carlo. The gun belonged to Stokes' friend and owner of the Monte Carlo, Ollie Outley.

How do we know the Eighth Circuit panel got it wrong on the immunity issue, that the case should have moved past summary judgment to settlement or trial? The words of Stras, the Trump appointee, tell us so. From our post of 9/16/20:

How gross was the Stras panel's butchery of the N.S. case? To arrive at an answer to that question, we first need to consider the proper steps for considering summary judgment, as spelled out in case law and Rule 56 of the Federal Rules of Civil Procedure (FRCP). Here are three key elements:

(1) The evidence of the nonmovant (the Stokes family, in this case) is to be believed, and all justifiable inferences are to be drawn in his favor. Anderson v. Liberty Lobby Inc., 477 U.S. 242 (1986).

(2) Summary judgment is appropriate where there is no genuine issue of material fact, and “the moving party is entitled to a judgment as a matter of law.” Celotex Corp v. Catrett, 477 U.S. 317 (1986).

(3) In passing upon a motion for summary judgment, the court is required to view the facts in the light most favorable to the party opposing the motion and to give to that party the benefit of reasonable inferences to be drawn from underlying facts. Robert Johnson Grain Co. v. Chem. Interchange Co., 541 F. 2d 207 - Court of Appeals (8th Circuit, 1976). Adickes v. SH Kress and Co., 398 US 144 
 (Supreme Court 1970).
  
Did the Stras panel follow these straightforward provisions of summary-judgment law? Not even close. Let's consider Stras' own words from the N.S. opinion:

Some evidence supports Thompson's account. The police discovered a handgun on the driver's seat of the car, which could mean that Stokes was armed when he entered the parking lot but then tossed the gun into the car. And witnesses who saw Stokes running said that he appeared to be "holding up his pants as he ran," which is arguably consistent with Thompson's perception that Stokes was holding a gun. Finally, Thompson's partner claims to have heard Thompson order Stokes to "get on the ground."

Other evidence supports the family's account. No one besides Thompson observed Stokes with a gun, nor was any gun found on or near his body. The car's owner, who was Stokes's friend, claimed that the gun recovered from the car belonged to him and that it had been there all night. Moreover, some officers did not recall hearing Thompson shout anything during the encounter, and at least one officer thought Stokes was trying to surrender when Thompson shot him.

Stras admits right up front that the evidence is mixed, with some of it favoring Officer Thompson's account, and some favoring the Stokes family's account. As the non-moving party, the Stokes family was entitled to have their factual allegations believed and "all justifiable inferences drawn in their favor." So, how could the Stras panel essentially force the trial court to grant summary judgment against them?

In Stras' own words, there were "multiple genuine issues of material fact," so summary judgment could not lawfully be granted. Why did the panel force summary judgment anyway? Is David Stras a rubber stamp for law enforcement? That's how it looks from here.

 

David Stras

Donald Trump is a narcissistic personality in command at a time of crisis, and that likely explains his dismal performance amidst a global pandemic

 

The primary message of last week's Republican National Convention (RNC) seemed to be: We are living in dark days, and the best way out of them is to re-elect the president (Donald Trump) who led us into them.

That might not make sense to you, and it certainly doesn't make sense to me. But here is a bigger message, one you did not hear at the RNC: Donald Trump likely is a narcissist, which makes him a bad president and a dangerous SOB.

 

Narcissism might be the No. 1 characteristic that makes Donald Trump unfit to be president, especially at a time of crisis, according to a recent New York Times analysis. Writes Jennifer Senior in an op-ed piece titled "This Is What Happens When a Narcissist Runs a Crisis:Trump’s catastrophic performance has as much to do with psychology as ideology":

Since the early days of the Trump administration, an impassioned group of mental health professionals have warned the public about the president’s cramped and disordered mind, a darkened attic of fluttering bats. Their assessments have been controversial. The American Psychiatric Association’s code of ethics expressly forbids its members from diagnosing a public figure from afar.

Enough is enough. As I’ve argued before, an in-person analysis of Donald J. Trump would not reveal any hidden depths — his internal sonar could barely fathom the bottom of a sink — and these are exceptional, urgent times. Back in October, George T. Conway III, the conservative lawyer and husband of Kellyanne, wrote a long, devastating essay for The Atlantic, noting that Trump has all the hallmarks of narcissistic personality disorder. That disorder was dangerous enough during times of prosperity, jeopardizing the moral and institutional foundations of our country.

But now we’re in the midst of a global pandemic. The president’s pathology is endangering not just institutions, but lives.

How does Trump's narcissism endanger us all? Writes Senior::

Let’s start with the basics. First: Narcissistic personalities like Trump harbor skyscraping delusions about their own capabilities. They exaggerate their accomplishments, focus obsessively on projecting power, and wish desperately to win.

What that means, during this pandemic: Trump says we’ve got plenty of tests available, when we don’t. He declares that Google is building a comprehensive drive-thru testing website, when it isn’t. He sends a Navy hospital ship to New York and it proves little more than an excuse for a campaign commercial, arriving and sitting almost empty in the Hudson. A New York hospital executive calls it a joke.

Second: The grandiosity of narcissistic personalities belies an extreme fragility, their egos as delicate as foam. They live in terror of being upstaged. They’re too thin skinned to be told they’re wrong.

What that means, during this pandemic: Narcissistic leaders never have, as Trump likes to say, the best people. They have galleries of sycophants. With the exceptions of Drs. Anthony Fauci and Deborah Birx, Trump has surrounded himself with a Z-team of dangerously inexperienced toadies and flunkies — the bargain-bin rejects from Filene’s Basement — at a time when we require the brightest and most imaginative minds in the country.

Faced with a historic public health crisis, Trump could have assembled a first-rate company of disaster preparedness experts. Instead he gave the job to his son-in-law, a man-child of breathtaking vapidity. Faced with a historic economic crisis, Trump could have assembled a team of Nobel-prize winning economists or previous treasury secretaries. Instead he talks to Larry Kudlow, a former CNBC host.

Meanwhile, Fauci and Birx measure every word they say like old-time apothecaries, hoping not to humiliate the narcissist — never humiliate a narcissist — while discreetly correcting his false hopes and falsehoods. They are desperately attempting to create a safe space for our president, when the president should be creating a safer nation for all of us.

What about the chaos that seems to surround Trump? That could have its roots in the president's narcissism:

Third: Narcissistic personalities love nothing more than engineering conflict and sowing division. It destabilizes everyone, keeps them in control.

What that means, during this pandemic: Trump is pitting state against state for precious resources, rather than coordinating a national response. (“It’s like being on eBay,” complained Gov. Andrew Cuomo of New York last week.) His White House is a petty palace of competing power centers. He picks fights with Democratic officials and members of the press, when all the public craves is comfort.Narcissistic personalities don’t do comfort. They cannot fathom the needs of other hearts.

Trump seems to hold more grudges than all previous U.S. presidents combined. That probably is not by accident:

Fourth: Narcissistic personalities are vindictive. On a clear day, you can see their grudges forever.

What that means, during this pandemic: Trump is playing favorites with governors who praise him and punishing those who fail to give him the respect he believes he deserves. “If they don’t treat you right, don’t call,” he told Vice President Mike Pence.
His grudge match with New York is now especially lethal. When asked whether New York will have enough ventilators, Trump bluntly answered “No,” and then blamed the state.

As leaders, narcissists desperately want to project strength. In fact, they often are anything but strong:

And most relevant, as far as history is concerned: Narcissistic personalities are weak.

What that means, during this pandemic: Trump is genuinely afraid to lead. He can’t bring himself to make robust use of the Defense Production Act, because the buck would stop with him. (To this day, he insists states should be acquiring their own ventilators.) When asked about delays in testing, he said, “I don’t take responsibility at all.” During a news conference, he added the tests “we inherited were “broken, were obsolete,” when this form of coronavirus didn’t even exist under his predecessor.

This sounds an awful lot like one of the three sentences that Homer Simpson swears will get you through life: “It was like that when I got here.”

Most people, even the most hotheaded and difficult ones, have enough space in their souls to set aside their anger in times of crisis. Think of Rudolph Giuliani during Sept. 11. Think of Andrew Cuomo now.

But every aspect of Trump’s crisis management has been annexed by his psychopathology. As Americans die, he boasts about his television ratings. As Americans die, he crows that he’s No. 1 on Facebook, which isn’t close to true.

But it is true that all eyes are on him. He’s got a captive audience, an attention-addict’s dream come to life. It’s just that he, like all narcissistic personalities, has no clue how disgracefully — how shamefully, how deplorably — he’ll be enshrined in memory.

Alleged gunman in shooting at New Jersey home of federal judge Esther Salas had connections to Russia and left a string of pro-Donald Trump writings

U.S. Judge Esther Salas

The alleged gunman in the shooting of a federal judge's family -- killing her son and critically injuring her husband -- had ties to Russia and left an extensive string of pro-Trump writings, according to a number of reports. Roy Den Hollander, described as an "anti-feminist" lawyer, now is considered a suspect in the recent murder of another men's-rights activist.  From an article at The Atlantic:

Roy Den Hollander, the self-described “anti-feminist” attorney who authorities say is the chief suspect in the shootings of the son and the husband of a federal judge in New Jersey, attacked that judge by name in misogynistic, racist writings he wrote over a period of years and posted in bulk on the Internet Archive. Den Hollander, who describes himself as a Trump volunteer in his writings, called the judge an “affirmative action” case who affiliated with those who wanted “to convince America that whites, especially white males, were barbarians, and all those of a darker skin complexion were victims.”

Esther Salas’s 20-year-old son was killed in the attack at their home on Sunday, and her husband was wounded. Den Hollander was later found dead of an apparent self-inflicted gunshot wound in Rockland, New York. Den Hollander’s insults toward Salas were included in a 2,028-page collection of writings he posted online in 2019 under the username Roy17den, a handle that mirrored his Twitter account, @roy17den, and the email address he used both in personal letters and in court filings.

“Female judges didn’t bother me as long as they were middle age or older black ladies,” he writes when discussing a lawsuit he filed that went before Judge Salas, the first Hispanic woman appointed a federal judge in New Jersey. “They seemed to have an understanding of how life worked and were not about to be conned by any foot dragging lawyer. Latinas, however, were usually a problem—driven by an inferiority complex.”

Den Hollander wrote a number of political pieces, which tended to be highly critical of Democrats (Hillary Clinton, Barack Obama) and glowing about Republicans (Donald Trump):

Along with the attacks on Salas, Den Hollander’s writings also go after President Barack Obama (who he said has an “obsession to turn America into a banana republic”), Supreme Court Justice Sonia Sotomayor (who he claimed was “angry that nobody had invited her to her high school senior prom”), Hillary Clinton (whose supporters were “teary-eyed, sad-sack, PC loonies watching their power of intolerance go down the drain”), and an Obama appointee (whom he describes as part of “that Orwellian party of feminists, ethnics, Muslims, illegals and queers who think they are superior to everyone else, especially white males.”)

In contrast, he writes in the same sprawling document that he was a volunteer for the presidential campaign of Donald Trump, who he said “was telling the truth about illegal aliens in his bid for the Presidency.” Den Hollander describes “leaving the law library in the early afternoon for Trump Tower, 12 blocks up Fifth Avenue, to make telephone calls during the primaries and the general election.” Recounting his time working for the campaign, he says most of his fellow volunteers “were aging baby boomers like me."

Den Hollander's legal work often reeked of hatred for women:

Den Hollander, who was 72, held deeply misogynistic beliefs about women and filed a series of lawsuits against what he considered unfair advantages they had over men. One of those suits, in which he argued that it was unconstitutional for women not to be subject to military draft, reached Salas’s court in 2019. Salas did not throw out the suit, as many of Den Hollander’s previous cases had been. She instead allowed the lawsuit to proceed through the court system. But Den Hollander was upset by what he considered to be Salas’s delaying of the case. He complained that she allowed the Department of Justice to file its fourth motion to dismiss the case, suggesting she was “trying to keep this case in her court until a weatherman showed her which way the legal winds were blowing.”

“Salas clearly wanted to further her career by moving up the judicial ladder to the Court of Appeals or maybe even the Supreme Court,” he writes. “After all, there was now a Latina seat in the form of Sotomayor on the Court.”

Judge Salas came from a disadvantaged background. She is the daughter of a Cuban immigrant; her home burned down when she was 10, and her family lost everything. Salas eventually earned her bachelor’s and law degrees from Rutgers University, became a public defender, and was elected president of New Jersey’s Hispanic Bar Association. “For this little girl from Union City to grow up and become a U.S. District Judge—it’s beyond words,” she told a local reporter after she became a federal judge in 2006.

Den Hollander, who turned his hatred of women into a string of media appearances over more than a decade, saw Salas’s biography differently. “It was the usual effort to blame a man and turn someone into super girl—daddy abandoned us, we were indigent, which means they lived off of the taxpayer, but we overcame all odds,” he writes in one of the documents posted online last year. He describes Salas’s decade as a public defender as “representing lumpen proletariat ne’er-do-wells.” Her “one accomplishment,” he says, was being a high-school cheerleader.

He also attacks Justice Sotomayor, saying she was “52 years old, prime age for a Feminazi.” His voluminous writings—more than 10,000 pages of PDFs—show a deep sense of grievance against women, especially his mother, who he claims told him, at age 4, “I wish I had listened to your father and never had you!” He calls her a witch, a “Nazi loon,” and “another malevolent female.” He also describes kissing girls in third grade frequently enough that their parents complained to their teacher. The document, one of several he uploaded to the Internet Archive, is a disturbing but by now common coda to high-profile incidents of gun violence: the suspected shooter leaving a trail of arguments and anger in random corners of the web. Many of them involve a hatred of women and people of color, and connect broad claims about the world with very personal claims of grievance.

“All my life I saw other people, even strangers in the street, as potential enemies with whom conflict seemed more likely than cooperation,” he writes. “I understood that, except for my few friends, I didn’t like people because they scared me; and when someone is afraid, he hates others for causing him the humiliation and himself for allowing it. But where did this ever-present fear come from—my genes or the way my mother raised me? I opted for the culpability of my mother with some assistance from my father.”

Den Hollander claimed to have married a Russian woman, and that ended badly:

He also writes viciously about a Russian woman he says he married, calling her a “mafia prostitute.” Den Hollander writes at length about the time he spent living in Russia, including time he says he spent working for Kroll Associates. At one point, he describes difficulties he said he was having with the U.S. government, claiming it had “confiscated” his U.S. citizenship. “Boy, was I glad I didn’t vote for Obama—wrote-in Putin instead,” he writes.

“Perhaps the Violence Against Women’s Act could get my citizenship back,” he added. “All I’d have to do is date an American girl then accuse her of abuse.”

Some of his interest in Russia is clearly tied to his support of the president. On the question of meddling in the 2016 election, he writes that, during the debate over Clinton’s email server, he had “what I thought was a great idea to help Trump.” If Russian intelligence had hacked the server, he would try to use an old Russian contact to dig up her emails. “So I contacted a GRU buddy requesting a few copies of the bleached or classified emails, if they had them. Telling him, I’d make them public through my media contacts.” His contact, he claims, said that GRU didn’t have the emails, which he took as a sign that “they did not hack the server or they wanted Hillary to win.”

Despite criticism from Trump and Gov. Mike Parson, Missouri prosecutor has lawful grounds to bring charges against St. Louis couple for brandishing guns

Mark and Patricia McCloskey

The governor of Missouri doesn't like it and the president of the United States doesn't like it, but Circuit Attorney Kim Gardner got it right yesterday when she filed criminal charges against a St. Louis couple who brandished weapons last month at protesters who were on the street in front of their $1-million home. From an Associated Press report at Politico:

St. Louis’ top prosecutor told The Associated Press on Monday that she is charging a white husband and wife with felony unlawful use of a weapon for displaying guns during a racial injustice protest outside their mansion.

Circuit Attorney Kim Gardner announced the charges against Mark and Patricia McCloskey, who are both personal injury attorneys in their 60s. They also face a misdemeanor charge of fourth-degree assault.

Gardner said in an interview with the AP ahead of more broadly announcing the charges that the McCloskeys’ actions risked creating a violent situation during an otherwise nonviolent protest.

“It is illegal to wave weapons in a threatening manner — that is unlawful in the city of St. Louis,” Gardner said.

How do we know Gardner is right about that? Well, the relevant statute -- RSMo 571. 030 -- is clear-cut:

2005 Missouri Revised Statutes - § 571.030. — Unlawful use of weapons--exceptions--penalties.

571.030. 1. A person commits the crime of unlawful use of weapons if he or she knowingly:

(1) Carries concealed upon or about his or her person a knife, a firearm, a blackjack or any other weapon readily capable of lethal use; or

(2) Sets a spring gun; or

(3) Discharges or shoots a firearm into a dwelling house, a railroad train, boat, aircraft, or motor vehicle as defined in section 302.010, RSMo, or any building or structure used for the assembling of people; or

(4) Exhibits, in the presence of one or more persons, any weapon readily capable of lethal use in an angry or threatening manner;

 Item No. 4 likely is the key element in the McCloskey case. They were caught on camera doing exactly what No. 4 describes. (See video embedded at the end of this post.)

Governor Mike Parson went on the Sean Hannity Show last night to decry the charges, but in light of the statutory language, Parson pretty much made a fool of himself:

Missouri Gov. Mike Parson told "Hannity" on Monday that "without a doubt," he will pardon Mark and Patricia McCloskey, hours after St. Louis Circuit Attorney Kimberly Gardner filed felony charges against them.

The charges stemmed from the McCloskeys wielding firearms after a crowd entered their gated neighborhood, and some allegedly threatened them and their property. The McCloskeys argued that they broke an iron gate to get onto the private street.

Parson, a Republican, said Missouri was one of several states with a "castle doctrine" principle wherein people could protect themselves, their family and/or their property in certain situations.

"Without a doubt, Sean," he said when asked about a pardon. "I will do everything within the Constitution of the State of Missouri to protect law-abiding citizens and those people are exactly that. They are law-abiding citizens, and they're being attacked frankly by a political process that's really unfortunate."

He called it a "sad day" for the state and noted that he has already spoken with President Trump, who agreed that the McCloskeys should not be facing felony charges for what they described as self-defense.

"They had every right to protect their property, their home, just like any of us would. If you had a mob coming towards you, whether they tore down a gate or not, when they come on your property, they don't have a right to do that in an aggressive manner. People have a right to protect their selves, their families, their property," said Parson.

A few points about Parson's remarks:

(1) Missouri's Castle Doctrine applies where an occupant believes someone is unlawfully entering his residence.  We've seen no indication that any protester attempted to enter the McCloskeys' residence.

(2) The McCloskeys had a right to protect their property, "against a mob that came on their property"? Numerous videos are online of the incident, and I haven't seen one that shows protesters on the MCCloskeys' property. They appear to have come right to the edge of it.

(3) Is Parson suggesting Gardner should ignore the law because the governor considers the McCloskeys to be "law-abiding citizens"? The governor should know the justice system doesn't work that way. Perhaps the McCloskeys have been law-abiding citizens for most of their lives. But in this moment they acted contrary to the language of  a Missouri statute.

(4) President Trump has no authority over prosecutorial decisions in Missouri, so why is Parson talking to him? To earn political points? And Parson accuses Gardner of playing politics?

(5) If Parson does not like the way Missouri law reads, he should work with the legislature to change it. Does that mean the McCloskeys will be found guilty? No. Does it mean Gardner had probable cause to bring the charges? Yes.

Is Gardner "throwing the book" at the McCloskeys? Not exactly. From Politico:

Gardner is recommending a diversion program such as community service rather than jail time if the McCloskeys are convicted. Typically, class E felonies could result in up to four years in prison.

As for the assault charge, this comes from a recent article, quoting a St. Louis law professor:

Under Missouri law, the distinct common law concepts of assault and battery are rolled into the same statute and defined under various degrees of assault. Section 565.056 (3-4) defines assault in the fourth degree as any conduct which “purposely places another person in apprehension of immediate physical injury” or “recklessly engages in conduct which creates a substantial risk of death or serious physical injury to another person.”

Trump and Barr combine to fire Geoff Berman in SDNY, likely committing obstruction of justice and matching Richard Nixon for executive criminality

Geoff Berman

The ham-fisted firing over the weekend of Geoff Berman, U.S. attorney for the Southern District of New York, could eventually lead to obstruction-of-justice indictments for President Donald Trump and Attorney General William Barr, a lawyer source tells Legal Schnauzer. The firing also points to a legal doctrine that likely is little known to the general public but plays a central role in evidentiary law -- and it also places Trump and Barr squarely in the Richard Nixon pantheon of executive criminality -- our source says.

Like may other legal analysts, our source is struggling to grasp what happened in the Berman firing. A big question: Of all the Trump-related cases Berman was investigating, which one became so sensitive -- nd so threatening -- that Trump and Barr decided Berman had o go? A number of legal experts have stated via Twitter that the probes of Jeffrey Epstein and Rudy Giuliani likely drove Trump and Barr into Nixon territory. But others point to probes involving Michael Cohen, a Turkish Bank, Deutsche Bank, Lev Parnas, Igor Fruman . . . and, well, so much corruption, so little time. From our source:

Barr first tries to fire Berman. Berman does not budge. Barr then says he advised Trump to fire Berman and that Trump agreed and fired Berman.

Then, Berman agrees to step down. But Trump publicly says he didn't have anything to do with the firing and that it was Barr's call.

To the contrary, Barr's says it was Trump's decision to axe Berman.

What do we make of this? To be sure, obstruction of justice. But, for purposes of evidence, this shell game that Trump and Barr are playing is indicative of one clear thing: that both are "conscious" of their "guilt" (known as "consciousness of guilt") and they're just trying to play this shell game in the event that Trump is not re-elected and ends up being indicted for about 1,001 thousand counts of obstruction of justice. As to the firing of Berman, Trump can claim that "I didn't fire Berman" and Barr can say "I didn't fire Berman" and both can try to confuse a jury so much that they don't know who to convict. How about this obvious solution: CONVICT THEM BOTH. This is effing outrageous.

Here is more on the "consciousness of guilt" doctrine:

"Consciousness of guilt' is an important concept in evidence law. it posits that life is full of behavior and context in which someone or some group of people do something, or don't do something, or say something, or don't say something, that tends to make them look guilty. and when people behave in any way that makes them look guilty, it's because they are "conscious" of their "guilt" and inadvertently do things or say things (or don't) that reveal that they really are "conscious" that they're "guilty" of wrongdoing.

My point is when Barr and Trump kept going back and forth, both saying that the other guy fired Berman, it's a sign that both are conscious of their combined guilty, and, so because of their consciousness of guilt, they've chosen to dissemble and confuse by pointing fingers to the the other guy and saying, "He did it, not me!"

The Berman firing emits such a foul odor that it takes our source back to the Watergate era:

Firing Berman will end up being one of the first indictments that will be issued against Trump and Barr. Their obstruction of justice in conspiring to fire Berman to interfere with Berman's investigation and preparations to prosecute members of Trump's criminal organization is unprecedented. Trump makes Richard Nixon look like a juvenile delinquent. Nixon was nowhere close to being the career criminal that "Don The Con" Trump is.

After 25 years of progress on police reform following the Rodney King beating, Trump and Sessions rolled back the clock and gave us the George Floyd killing

From Mother Jones

After police officers beat Rodney King in 1991, and then were acquitted on criminal charges -- sparking the Los Angeles riots -- America got serious about trying to reign in rogue cops. The Barack Obama administration was particularly aggressive about using Congressional action that gave the federal government oversight over local police departments.

That progress came to a halt in 2017 when Donald Trump and his first attorney general -- former U.S. Sen. Jeff Sessions (R-AL) -- took office. Now, according to a report from Mother Jones, we have the killing of George Floyd in Minneapolis and widespread civil unrest to show for it. Writes reporter Pema Levy:

The civil unrest rocking the country in the wake of George Floyd’s death under the knee of a Minneapolis police officer has many catalysts. Among the more immediate is President Donald Trump and his first attorney general, Jeff Sessions, who freed local police departments from federal oversight and signaled that police brutality was no longer a problem that the federal government had an interest in solving. For police officers and departments with histories of terrorizing people rather than building relationships with communities they are supposed to protect, that message was heard loud and clear.

After the police officers who beat Rodney King in March 1991 in Los Angeles were acquitted, leading to the Los Angeles riots, Congress took action by giving the federal government oversight of local police departments.

Here is what Mother Jones wrote in 2017, on the 25th anniversary of the LA riots:

Since then, the Justice Department has launched 70 investigations into state and local law enforcement agencies and has negotiated 40 reform agreements, half of which are court-enforced consent decrees. The Obama administration was particularly active with this policy, enforcing 14 consent decrees for troubled police agencies, from Ferguson, Missouri, to Baltimore.

The situation is rich with irony as last night marked the ninth consecutive night of protests over the Floyd killing:

The [LA] riots’ 25th anniversary also happened to mark the beginning of the Trump administration. Jeff Sessions, newly installed as attorney general, immediately set out to undo years of progress on police and criminal justice reform. In April of 2017, a federal judge approved a consent decree—a legally-binding agreement between the Justice Department and a police department mandating reforms that is enforced by a federal judge—in Baltimore, finding that Sessions’ objections to an agreement made under the Obama administration came too late. “I have grave concerns that some provisions of this decree will reduce the lawful powers of the police department and result in a less safe city,” Sessions said at the time. “Make no mistake, Baltimore is facing a violent crime crisis.”

Though stymied from preventing Baltimore’s consent decree from going into effect, that same week he had ordered an internal review of all existing consent decrees nationwide. Even as Sessions’ relationship with the president turned sour over his recusal from the investigation into Russian election interference, the attorney general kept his head down and pulled back on criminal justice reforms, returning to a tough-on-crime policies that Sessions, a former prosecutor in Alabama, felt should never have ended. (Sessions is running for his old Senate seat in Alabama, but without the support of Trump he is not expected to win the Republican nomination in a July runoff.) The government’s police reform work came to a halt, while criminal justice policies reverted to harsher iterations.

Thanks to Jeff Sessions, Americans now are less safe than they were when Trump took office, and the president's re-election chances probably have taken a hit. Writes Levy:

When Trump finally fired Sessions in November 2018, the outgoing attorney general had one final trick up his sleeve. Before leaving the Justice Department, he quietly signed a memorandum in one of his last official acts all but ending the department’s oversight of police departments. The memorandum made the Trump administration’s de facto policy against new consent decrees official, while extending the same hands-off policy to other areas of federal enforcement involving state responsibilities in areas like pollution and voting rights. Experts predicted that even departments already under current federal oversight might once again act with impunity because the memo undercut the authority of civil rights attorneys to enforce them. Sessions’ memo set policy, but it also sent a message to police departments that they would no longer have to answer to the federal government—not even when when officer shootings draw national attention.

This message was sent not just in the order to pare back enforcement, but in the states’ rights language framing the 7-page document that has historically signaled support for state repression over the rights of black people. “Sessions’ memo also takes pains to emphasize that states are ‘sovereign’ with ‘special and protected roles’ and that, when investigating them, the Justice Department must afford states the ‘respect and comity deserving of a separate sovereign,'” Christy Lopez, who oversaw investigations by the department into local police agencies during the Obama administration, wrote at the time the memo was issued. “In his view, the Justice Department should be more concerned about protecting states from the burden of abiding by federal law than about protecting individuals from being hurt or killed by the state.”

Lopez then made a prescient prediction: “As has so often been the case with this administration, we will have to look to the courts, to local governments and to grass-roots political protest and pressure to protect our civil rights from police abuse. Because, as the Sessions memo confirms, this Justice Department has no intention of letting its civil rights division protect us from abuse by the state.”

Donald Trump's name has been invoked in more than 50 acts of violence, indicating inflammatory words can carry painful consequences for innocent citizens

A pipe bomb found at the home of an Oregon man.

Donald Trump's name was invoked in more than 50 criminal cases involving violence, according to an ABC News analysis. This comes less than two months after a Legal Schnauzer post that Trump likely was violating state and federal laws by exhorting his followers to engage in violent acts. From a Yahoo! summary of the ABC News report:

President Donald Trump has repeatedly distanced himself from acts of violence in communities across America, dismissing critics who point to his rhetoric as a potential source of inspiration or comfort for anyone acting on even long-held beliefs of bigotry and hate.

"I think my rhetoric brings people together," he said last year, four days after a 21-year-old allegedly posted an anti-immigrant screed online and then allegedly opened fire at a Walmart in El Paso, Texas, killing 22 and injuring dozens of others.

But a nationwide review conducted by ABC News has identified at least 54 criminal cases where Trump was invoked in direct connection with violent acts, threats of violence or allegations of assault.

Want some examples? ABC News provides them:

After a Latino gas station attendant in Gainesville, Florida, was suddenly punched in the head by a white man, the victim could be heard on surveillance camera recounting the attacker’s own words: “He said, ‘This is for Trump.'" Charges were filed but the victim stopped pursuing them.

When police questioned a Washington state man about his threats to kill a local Syrian-born man, the suspect told police he wanted the victim to "get out of my country," adding, "That’s why I like Trump."

Reviewing police reports and court records, ABC News found that in at least 12 cases perpetrators hailed Trump in the midst or immediate aftermath of physically assaulting innocent victims. In another 18 cases, perpetrators cheered or defended Trump while taunting or threatening others. And in another 10 cases, Trump and his rhetoric were cited in court to explain a defendant's violent or threatening behavior.

Inflammatory words can have consequences, and that apparently is why we have laws against overheated rhetoric. From our post of April 21:

As for lawlessness emanating from the White House, Mary McCord addressed that in an op-ed at The Washington Post. McCord is legal director of the Institute for Constitutional Advocacy and Protection and a visiting professor at the Georgetown University Law Center. She was acting U.S. assistant attorney general for national security from 2016 to 2017. From the McCord op-ed:

President Trump incited insurrection Friday against the duly elected governors of the states of Michigan, Minnesota and Virginia. Just a day after issuing guidance for re-opening America that clearly deferred decision-making to state officials — as it must under our Constitutional order — the president undercut his own guidance by calling for criminal acts against the governors for not opening fast enough.

Trump tweeted, “LIBERATE MINNESOTA!” followed immediately by “LIBERATE MICHIGAN!” and then “LIBERATE VIRGINIA, and save your great 2nd Amendment. It is under siege!” . . .

“Liberate” — particularly when it’s declared by the chief executive of our republic — isn’t some sort of cheeky throwaway. Its definition is “to set at liberty,” specifically “to free (something, such as a country) from domination by a foreign power.” We historically associate it with the armed defeat of hostile forces during war, such as the liberation of Western Europe from Nazi Germany’s control during World War II. Just over a year ago, Trump himself announced that “the United States has liberated all ISIS-controlled territory in Syria and Iraq.”

In that context, it’s not at all unreasonable to consider Trump’s tweets about “liberation” as at least tacit encouragement to citizens to take up arms against duly elected state officials of the party opposite his own, in response to sometimes unpopular but legally issued stay-at-home orders.

The April LS post provided details about the relevant law:

Our lawyer source provides details about state insurrection laws, especially from the Code of Virginia, and notes that states are not precluded from prosecuting a sitting president. Writes our source:

It is obvious Trump's tweets to protesters to "liberate" themselves from the "siege" the state governors have ordered was intended by Trump to encourage and incite those protesters (his base) to intimidate state governors. After all, wasn't intimidation of public officials the purpose of the so-called "Brooks Brothers Riot" in Florida in 2000?

You may find it interesting that the Criminal Code of Virginia has several applicable criminal provisions, including mob crime laws and criminal solicitation statutes. Also, the Criminal Code of Virginia defines a criminal "act of terrorism" as an act of violence with the intent to either "intimidate a civilian population at large" or to "influence the conduct or activities of a government, including . . . a state . . . through intimidation." Crim. Code of Va., Section 18.2-46.4. Trump's tweet was not violence; but the message Trump tweeted clearly suggested that Trump was encouraging protesters to act as a mob of public assembly and intimidate state officials to withdraw state orders issued to protect lives and public health. Therefore, if protesters, especially those known to revere Trump, end up forming a mob and engaging in any violence whatsoever, it is absolutely clear that Trump could be criminally prosecuted in Virginia for his public communications (tweets) in which he sought to command, entreat, or otherwise persuade persons to intimidate their state governments and state public officials and to resist execution of lawful state-government orders. If protesters followed Trump's encouragement and assembled, fomented riot, and/ or killed anyone, then Trump could be criminally prosecuted for criminal solicitation to incite riot, unlawful assembly, treason, and terrorism.

Virginia also criminalizes inciting a riot or unlawful assembly.

Finally, Virginia also criminalizes and calls it "treason" for a person to (1) solicit or encourage others to wage war against the Commonwealth of Virginia (e.g., insurrection or riot); or (2) solicit or encourage others to resist the execution of the laws of Virginia under color of its authority. See Crim. Code of Va., sections 18.2-29 and 18.2-481(1) and (5).

Trump calls himself the "law and order" president. The "law-breaking president" is more like it.

Michigan, Pennsylvania, and Arizona appear to hold the keys to Democrats' hopes of reclaiming the White House and sending Donald Trump to the sidelines

 
Democrats' strategy for reclaiming the White House in November should focus on strengths in Michigan, Pennsylvania, and Arizona, while building on signs of hope in the West, and to a lesser extent, certain areas of the South, according to an analysis at Axios.

Written by Doug Sosnik, White House political director for Bill Clinton's successful re-election effort, the report is built largely around the notion that the country has completed a political realignment that started with Clinton in 1992 and ended with Donald Trump's first term. That means Trump is running on different terrain than he faced in 2016. Key features of the realignment are expected to be central to the 2020 race:

* Changing demographics: The fastest-growing demographic groups — nonwhites and millennials (now the largest voting bloc) — are D-friendly.

* Women are increasingly abandoning the Republican Party.

* More-educated voters are increasingly Democratic.

* Suburbs, which constitute an increasing share of the U.S. population, are moving D.

As usual, the battleground states of the Rust Belt will bear watching, as will states where the political sands appear to be shifting -- at least a little. Writes Sosnik:

* Trump’s chance of winning Michigan, which he carried by 11,000 votes in 2016, has been significantly reduced by the impact of COVID-19 in the state, which has suffered the fourth most deaths in the country.

* Pennsylvania has almost been as hard hit as Michigan (fifth most deaths).

* Of the three Rust Belt states, Trump is best positioned in Wisconsin, where his job approval has remained higher than the national average.

West and South emerge as new Democratic base:

* Seven western states — California, Colorado, Hawaii, Nevada, New Mexico, Oregon and Washington — are firmly in the Democratic column.

* Six states in the South and Southwest — Arizona, Florida, Georgia, North Carolina, Texas and Virginia — are in various stages of becoming blue states.

* Outside of Virginia, which has already become a blue state, Arizona is the state most likely to transition to a Democratic base state as early as November.

Joe Biden, the Democrats' presumptive nominee, has five best paths to victory -- and Sosnik spells them out:

Biden’s most likely paths to 270 electoral college votes:

* Michigan, Pennsylvania and Arizona: Biden wins all three states — his best option, given the political environment.

* Michigan and Pennsylvania + two congressional districts — Nebraska-02 and Maine-02.

* The Rust Belt: Biden wins Michigan, Pennsylvania and Wisconsin.

* Michigan and the Sunbelt: Biden carries Michigan, Arizona and North Carolina.

* Florida +1: Biden carries Florida, getting him to 261 electoral votes. A win in any of the other battleground states would put him well past 270.

Here is how Sosnik summarizes:

The bottom line: Biden's best strategy:

* Make putting Michigan out of reach for Trump the top priority.

* Lock up Pennsylvania.

* Prioritize winning Arizona, Maine-02 and Nebraska-02.

* Focus remaining resources on Wisconsin, North Carolina and Florida.

Dr. Anthony Fauci draws right-wing smear attacks, led by Trump lawyer Rudy Giuliani, based on grants for study of coronaviruses in China, dating to Obama era

Dr. Anthony Fauci

Right-wing conspiracy theorists and media outlets are using a series of U.S. grants to study coronaviruses as grounds for a smear campaign against Dr. Anthony Fauci -- suggesting he is in cahoots with a Chinese laboratory, and the two helped cause the COVID-19 pandemic, or both -- according to a report at BuzzFeed News. The campaign apparently is part of Donald Trump's efforts to blame the pandemic on China and undermine Fauci for failing to be sufficiently deferential to the president.

Fauci yesterday told a Senate committee the country faces "really serious" consequences if it reopens too early. That probably will not help his popularity with the right wing.

The attacks on Fauci started, in part, with an April 26 Tweet from Trump attorney Rudy Giuliani, suggesting research grants to Wuhan Virology Laboratory were tied to Fauci and essentially helped fund the pandemic. The Web site PolitiFact says Giuliani's assertions -- both about U.S. policy under President Barack Obama and the grant amounts -- are false:

A virology lab in Wuhan, China, continues to draw scrutiny for work it did on bat viruses as part of American-funded research.

To be clear, there is no sign that the coronavirus that has swept around the globe was bioengineered, but suspicions run high, including from President Donald Trump’s lawyer Rudy Giuliani.

PolitiFact then cuts to the chase:

* The United States did not give $3.7 million to a lab in China. That is an incorrect amount. The actual amount was just under $600,000.

* The money that was given was permitted.

BuzzFeed reporter Jane Lytvynenko adds depth to the story:

Right-wing media and conspiracy theorists have seized on a series of grants awarded over the course of six years to study coronaviruses to undermine Dr. Anthony Fauci, the immunologist who’s been at the helm of the National Institute of Allergy and Infectious Diseases since 1984. The narrative moved to the spotlight at the White House when, during a press conference on April 17, a reporter with Newsmax asked President Donald Trump about the grants, totaling $3.7 million since 2014.

The Daily Mail, a British tabloid known for publishing unreliable stories, first reported the $3.7 million figure on April 11. The paper wrote a story on the funding, parts of which went to the Wuhan Institute of Virology in China. Although the article stated that there’s no evidence the novel coronavirus leaked from the lab, it implied a correlation between the grants and the pandemic: "The revelation that the Wuhan Institute was experimenting on bats from the area already known to be the source of COVID-19 — and doing so with American money — has sparked further fears that the lab, and not the market, is the original outbreak source."

Those questions have had real effects. Politico reported on April 27 that the National Institutes of Health would be revoking grants given to New York–based nonprofit organization EcoHealth Alliance in 2019, including funds for 2020 that the nonprofit now has to return.

But in reality, the grants appear to have nothing to do with the coronavirus pandemic. In fact, they were awarded after a different kind of coronavirus — SARS — spread across the world in 2003. The NIH also didn’t give the funds directly to the Wuhan Institute, instead awarding them to EcoHealth Alliance, which invests in health research globally. The money helped support research that led to 20 research papers on coronaviruses published over the six years, according to the NIH. It’s not clear whether Fauci was personally involved in the grants in any way.

On Sunday night, 60 Minutes reported on the Trump administration revoking funding for Peter Daszak, a coronavirus researcher with EcoHealth Alliance. Are such actions based on facts? The answer appears to be no, according to BuzzFeed:

Aside from the Wuhan Institute, those funds also went to research facilities in Shanghai, Beijing, and Singapore. The grants were meant to “support research that aims to understand what factors allow coronaviruses, including close relatives to SARS, to evolve and jump into the human population and cause disease (called a spillover event),” an NIH spokesperson told BuzzFeed News.

“Most emerging human viruses come from wildlife, and these represent a significant threat to public health and biosecurity in the US and globally, as demonstrated by the SARS epidemic of 2002–03, and the current COVID-19 pandemic,” the spokesperson said. “The project includes studying viral diversity in animal (bats) reservoirs, surveying people that live in high-risk communities for evidence of bat-coronavirus infection, and conducting laboratory experiments to analyze and predict which newly discovered viruses pose the greatest threat to human health.”

The grant also wasn’t the first awarded to EcoHealth Alliance. The NIH has been funding infectious disease research projects through the nonprofit since 2005. . . .

For Joan Donovan, the director of the Technology and Social Change Project at Harvard's Shorenstein Center, the attacks and conspiracies are part of a larger narrative undermining Fauci and his work. “If you don’t trust the scientist, you don’t trust the science,” Donovan said.

And the right-wing media and conspiratorial YouTube channels have used the grants to stoke that distrust.

On April 26, Trump attorney Rudy Giuliani called for an investigation of the grant on a New York morning radio show. Falsely and without evidence, the former mayor of New York implied the virus was created as a biological weapon, blaming Fauci and the administration of President Barack Obama.

Newly obtained documents show ALEC is playing a leading role in pushing Trump administration to reopen the economy amid wreckage of coronavirus

(from Center for Media and Democracy)

A nonprofit organization for conservative state legislators is leading the push to reopen the U.S. economy in the face of the coronavirus crisis -- even though experts tend to say the country is not ready for such a step -- according to a report at the Center for Media and Democracy (CMD). Write David Armiak and Alex Kotch:

Documents obtained by the Center for Media and Democracy (CMD) show that a powerful corporate lobby front group, the American Legislative Exchange Council (ALEC), is playing a leading role in the right-wing movement to push for early reopening of the economy amidst the coronavirus pandemic that has cost the United States 61,680 lives to date.

ALEC is a corporate pay-to-play operation where legislators and corporate lobbyists vote behind closed doors to adopt model legislation on a broad range of public policy issues.

At a time when many hard-hit states and medical experts are lamenting the lack of federal leadership in dealing with the health crisis, the ALEC documents call for action to “bring the economy back to life through a free market approach that gets big government out of the way.”

What do the documents reveal? The CMD report explains:

In an email to legislators obtained by CMD, ALEC touts that “your ALEC team has been value-pushing your ideas and solutions into the mainstream” with “9 across the States podcast episodes with guests such as Newt Gingrich,” “30 policy prescriptions,” and hosting of “9 calls with top government officials and policy experts.”

ALEC is also coordinating a sign-on letter from “policy leaders and elected officials” to President Trump and state leaders urging them to “reopen the economy and get people back to work.” The letter praises Trump for his “Opening Up America Again” plan and thanks him for a “disaster response [that] is locally executed, state managed and federally supported.”

Are ALEC's positions popular with everyday Americans as they alter their lives to battle a lethal virus? It doesn't look like it:

Recent polling shows ALEC’s aggressive position on resuming commercial activity to be outside the mainstream of public opinion. Three in four voters (73 percent) think we need to continue social distancing measures despite the impact on the economy, 80 percent want more testing before schools and restaurants reopen, and 65 percent said “they did not want to go back to work without more thorough testing.”

ALEC writes in the letter that, “It is possible and preferable for employers to implement best practices to protect the health of their customers and employees – without micromanagement from the government,” but industry practices during the pandemic suggest otherwise.

“Essential” businesses that have stayed open have repeatedly jeopardized the health of their workers, including “thousands of employees across the country” at meat processing plants and shift workers in over 55 of Amazon’s fulfillment centers who have contracted the coronavirus.

A number of governors and health experts have warned that reopening the economy too early could make the coronavirus pandemic worse.

ALEC -- surprise, surprise -- is looking beyond public-health issues, including an almost certain spike in COVID-19 cases and deaths to come with a premature reopening:

Meanwhile, ALEC is attempting to use the national crisis to leverage movement on its pro-corporate policy agenda. The sign-on letter states in ALEC fashion that a “proven formula of tax relief, deregulation, and lawsuit reform” are keys to rebuilding the economy.

ALEC and the Koch influence network pushed hard for the massive 2017 tax giveaway to corporations and the wealthy that not only has not paid for itself, as Secretary Mnuchin notoriously argued it would, but as of January had led to a national deficit that is 28 percent greater than the Congressional Budget Office projected before the tax cuts.

Exploiting the opportunity of the coronavirus crisis, ALEC has put together a “policy prescriptions” wish list on its site composed of model bills it has drafted and recommends legislative members push for.

Emails obtained through records requests by CMD show that ALEC has been working closely with the Trump administration to convince members that now is the time to reopen. ALEC’s CEO Lisa Nelson wrote in an email to legislators Tuesday that ALEC hosted a call with Vice President Mike Pence (who once quipped, “I can say I was for ALEC before it was cool”) and over 300 members of the “ALEC family” to discuss reopening the economy on April 22.

Pence said on the call that the country “will look much different — and much better — by Memorial Day.”

Nelson also stated that ALEC would be hosting calls about reopening the economy with Labor Secretary Eugene Scalia (April 29) and Education Secretary Betsy DeVos (May 5).

On March 30, ALEC hosted a conference call for its members and partners that featured National Federation of Independent Business‘s Senior Director of Government Relations Kevin Kuhlman and Job Creators Network‘s President and CEO Alfredo Ortiz to discuss how to help “businesses in their communities access capital and restart their businesses.”

ALEC legislators and lobbyists will have an opportunity to put their words into action in July, as ALEC announced this week that it will be going ahead with its plans for an in-person Annual meeting in Orlando Florida on July 15-17. Nelson wrote that the conference will “explore solutions that will empower our attendees with freedom-based policies as we rebuild our states.”

Florida ranks eighth in the country for the most COVID-19 cases.

Legal experts and other commentators lambaste Trump administration for "unconstitutional" block on Dr. Anthony Fauci's House testimony re: COVID-19

Donald Trump and Dr. Anthony Fauci

 
Dr. Anthony Fauci was to testify today before a U.S. House committee on the government's response to the coronavirus outbreak. The White House, however, blocked Fauci's testimony -- claiming the House is controlled by Democrats and "Trump haters." The administration's decision, in keeping with its longstanding defiance of Congressional oversight, set off sparks of outrage from legal experts, according to  a report from HuffPost/Yahoo! News.

Meanwhile, we are fortunate to have a lawyer source who offers a solution to the stalemate.

From the HuffPost/Yahoo! report:

Legal experts led the criticism of President Donald Trump’s White House on Friday after it confirmed it would not allow Dr. Anthony Fauci to testify before a House panel on the United States’ handling of the coronavirus pandemic next week.

White House spokesman Judd Deere claimed in a statement that the appearance of the infectious disease expert, who is a prominent member of Trump’s coronavirus task force, on Wednesday, May 6, would be “counterproductive.”

Instead, Fauci is expected to testify at a Senate Health Committee hearing the following week, on May 12, reported NBC News. The House is controlled by the Democrats, while the Senate has a Republican majority.

How did this sit with legal experts -- not to mention commentators, journalists, and politicos -- around the country? Not well, as the HuffPost/Yahoo! report makes clear:

Laurence Tribe, professor of constitutional law at Harvard:

This is outrageous.

Maya Wiley, former chief counsel to New York City mayor:

An unconstitutional #obstruction of Congress during an emergency. Thank Senators who voted to give #Trump a pass on #impeachment for...say it with me....””: “White House blocking Fauci from testifying before Congress about coronavirus response.”

Glenn Kirschner, former federal prosecutor:

I am so sick of this administration’s crimes, callousness and cover-ups. What kind of sham, non-existent privilege has Trump asserted to stop Dr. Fauci from testifying? Wait, don’t tell me, it’s a variation on doctor-patient privilege.

Bill Kristol, conservative commentator:

So the White House is taking responsibility for Fauci not testifying. It seems as if Fauci was willing to testify, and that neither he nor Azar wanted to say no publicly, forcing the White House to do so. Gotta think relations between WH and HHS/Fauci are near a breaking point.

Dan Rather, retired CBS anchor:

So the White House is blocking Fauci from testifying in front of the House? Calling it “counterproductive” since he's busy working on the pandemic? The jokes write themselves, but there's nothing funny about this

Howard Dean, former presidential candidate:

The obvious thing for Fauci to do is resign and then testify. Or testify anyway and see if trump dares to fire him.

Howard Dean suggests Fauci needs to grow a spine. A lawyer source tells Legal Schnauzer Congress needs to grow a spine:

Congress should study the capias writ (arrest of a person), and order a capias writ for Fauci. Every person Trump orders not to appear should be subject to a capias writ from Congress. The full Latin term for a capias is capias ad respondendum (Latin: "that you may capture [him] in order for him to reply").

A 'capias' writ issued from Congress would be simply an order that the witness be seized and brought to Congress to respond to questions from Congress. It's not an order to arrest Trump. It's an order to seize and bring the witness to Congress. It's really perfect. What's Trump going to do? Obstruct or use violence to prevent a Congressional police officer from arresting a congressional witness who has been subpoenaed? It's perfect. Consider it my (first) moment of legal brilliance in quite a while. Headline: Why Doesn't Congress Issue A Capias Writ To Every Witness Trump Tries To Prevent From Testifying Before Congress?

I knew Trump's statements today were not sufficient reasons to prevent Fauci from testifying before Congress. . . . Also, one of the most ancient and basic principles of evidence law: When a person (Trump) tries to obstruct or prevent evidence from being reviewed by an investigative body (i.e., Congress), there is an ADVERSE INFERENCE that the person who is trying to prevent the facts or evidence from being produced (Trump) is GUILTY and trying to cover something up.

Warning: Trump administration's defiance of Congressional oversight at every turn is a sign of a president who intends to become a dictator

Robert Mueller (CNN)

Scary events have filled the first four-plus months of 2020, with perhaps the two scariest coming in the last four days -- and only one of them involving the coronavirus, in an indirect way. The two recent hair-raisers can be summed up in the following headlines from CNN

(1) Trump administration gets 10-day delay to turn over Mueller docs to House;

(2) White House blocks Fauci from testifying next week

Both headlines reflect the Trump administration's determination to interfere with Congress' duty to investigate and conduct oversight on the executive branch. A prominent academician and former White House cabinet secretary says such moves represent Trump's desire to establish a dictatorship, answering to no one. That should keep all Americans up at night. Let's take a brief look at the stories behind the headlines noted above:


Trump administration gets 10-day delay to turn over Mueller docs to House

The Trump administration will have another 10 days to rush to the Supreme Court for help before it'll have to turn over Mueller grand jury secrets to the House of Representatives, a federal appeals court said on Friday.

In a brief order, the US Court of Appeals for the District of Columbia, said it would give the Justice Department time to appeal to the Supreme Court. The court had previously said documents and details from special counsel Robert Mueller's investigation would have to be turned over Friday. Now, the deadline is May 11, the day before the Supreme Court hears another high-profile case about House Democrats' investigations into President Donald Trump.

The Justice Department has said it would ask the Supreme Court to intervene in the Mueller grand jury case. If that happens and the Supreme Court wants to hear the case, it could be months before it's resolved. Last month, the appeals court ruled, 2-1, that the Democratic-controlled House could see the grand jury material from the Mueller probe and redacted portions of the Mueller report. The majority agreed that the House Judiciary Committee has a "compelling need" to view the secretive details prosecutors had collected from witnesses and about Trump.

The House says it wants the still-confidential Mueller findings and grand jury material so it can investigate the President for potential obstruction of justice during the Russia investigation.

Democrats have especially raised questions about what campaign witnesses told Mueller versus what Trump said to Mueller in written answers -- saying he didn't recall conversations about attempts to reach WikiLeaks in 2016.

What does this tell us? (1) Trump will fight to his last legal option to keep the full Mueller Report under wraps; (2) The administration considers grand-jury secrecy rules to be more important than Congress' duty to conduct oversight -- and the public's right to know; (3) Trump went through an impeachment proceeding, with Congress never having access to grand-jury materials and the unredacted Mueller Report, suggesting that whole process was a sham.


White House blocks Fauci from testifying next week

The White House is blocking Dr. Anthony Fauci, a key member of the administration's coronavirus task force, from testifying before the Democratic-led House (on 5/6/20), according to a spokesman from a key House committee.

"The Appropriations Committee sought Dr. Anthony Fauci as a witness at next week's Labor-HHS-Education Subcommittee hearing on COVID-19 response. We have been informed by an administration official that the White House has blocked Dr. Fauci from testifying," House Appropriations Committee spokesman Evan Hollander said in a statement Friday.

White House deputy press secretary Judd Deere confirmed the decision. "While the Trump Administration continues its whole-of-government response to COVID-19, including safely opening up America again and expediting vaccine development, it is counter-productive to have the very individuals involved in those efforts appearing at Congressional hearings," Deere said in a statement. "We are committed to working with Congress to offer testimony at the appropriate time."

Press secretary Kayleigh McEnany followed up on Deere's comments, explaining in an interview Saturday the reasoning behind the White House's decision.

"When we pressed for details as to why Dr. Fauci in particular was the right person for the testimony and this hearing, those details were never provided," McEnany said in a Fox News interview.

In a gaggle with reporters after her interview on Fox, McEnany said the administration wanted to make sure that the "subject matter of the hearing matched the individual they're requesting" and in this case, "there was never any clarity given forth as to what the actual subject matter of this hearing would be."

Though when asked by CNN's Jeremy Diamond if Fauci or other officials will be allowed to testify in front of other House committees in the future, McEnany said "absolutely."

It appears Fauci is expected to testify in front of a committee of the Republican-led Senate committee during May. He will testify before the Senate Health, Education, Labor and Pensions Committee on May 12, per an aide to the panel's chairman, Sen. Lamar Alexander, a Tennessee Republican.

What do we learn from this? (1) In TrumpWorld, the White House gets to choose what witnesses testify before Congress -- and when they appear; (2) The administration determines if oversight testimony is "counter-productive,' regardless of what Congress thinks; (3) Witnesses might be allowed to appear before a Republican-controlled committee, but not one controlled by Democrats -- adding a heavy-handed layer of politicization to the process.

Robert Reich, former U.S. labor secretary and professor of public policy at the University of California at Berkeley, saw this kind of thing coming last spring when he wrote an op-ed for The Guardian titled "In fighting all oversight, Trump has made his most dictatorial move: The president is treating Congress with contempt. This cannot stand – and Congress must fight back."Writes Reich:

“We’re fighting all the subpoenas,” says the person who is supposed to be chief executive of the United States government.

In other words, there is to be no congressional oversight of this administration: no questioning officials who played a role in putting a citizenship question on the 2020 census. No questioning a former White House counsel about the Mueller report.

No questioning a Trump adviser about immigration policy. No questioning a former White House security director about issuances of security clearances.

No presidential tax returns to the ways and means committee, even though a 1920s law specifically authorizes the committee to get them.

Such a blanket edict fits a dictator of a banana republic, not the president of a constitutional republic founded on separation of powers.

If Congress cannot question the people who are making policy, or obtain critical documents, Congress cannot function as a coequal branch of government.

What does this mean for Congress and the American public it serves? The answer is not pretty:

If Congress cannot get information about the executive branch, there is no longer any separation of powers, as sanctified in the US constitution.The man whose aides cooperated, shall we say, with Russia – the man who still refuses to do anything at all about Russia’s continued interference in the American political system – refuses to cooperate with a branch of the United States government that the Constitution requires him to cooperate with in order that the government function.

There is only one power – the power of the president to rule as he wishes.

Which is what Donald Trump has sought all along.

The only relevant question is how to stop this dictatorial move. And let’s be clear: this is a dictatorial move.

Presidents before Trump occasionally have argued that complying with a particular subpoena for a particular person or document would infringe upon confidential deliberations within the executive branch. But no president before Trump has used “executive privilege” as a blanket refusal to cooperate.

Recent events show Congress has played softball with Trump, allowing themselves to be steamrolled. Robert Reich, writing one year ago, said Congress had better grow a spine:

How should Congress respond to this dictatorial move?

Trump is treating Congress with contempt – just as he has treated other democratic institutions that have sought to block him.

Congress should invoke its inherent power under the constitution to hold any official who refuses a congressional subpoena in contempt. This would include departmental officials who refuse to appear, as well as Trump aides. (Let’s hold off on the question of whether Congress can literally hold Trump in contempt, which could become a true constitutional crisis.)

“Contempt” of Congress is an old idea based on the inherent power of Congress to get the information it needs to carry out its constitutional duties. Congress cannot function without this power.

How to enforce it? Under its inherent power, the House can order its own sergeant-at-arms to arrest the offender, subject him to a trial before the full House, and, if judged to be in contempt, jail that person until he appears before the House and brings whatever documentation the House has subpoenaed.

When President Richard Nixon tried to stop key aides from testifying in the Senate Watergate hearings, in 1973, Senator Sam Ervin, chairman of the Watergate select committee, threatened to jail anyone who refused to appear.

Congress hasn’t actually carried through on the threat since 1935 – but it could.

Would America really be subject to the spectacle of the sergeant-at-arms of the House arresting a Trump official, and possibly placing him in jail?

Probably not. Before that ever occurred, the Trump administration would take the matter to the supreme court on an expedited basis.

Sadly, there seems no other way to get Trump to move. Putting the onus on the Trump administration to get the issue to the court as soon as possible is the only way to force Trump into action, and not simply seek to run out the clock before the next election.

What would the court decide? With two Trump appointees now filling nine of the seats, it’s hardly a certainty.

But in a case that grew out of the Teapot Dome scandal in 1927, the court held that the investigative power of Congress is at its peak when lawmakers look into fraud or maladministration in another government department.

Decades later, when Richard Nixon tried to block the release of incriminating recordings of his discussions with aides, the supreme court decided that a claim of executive privilege did not protect information pertinent to the investigation of potential crimes.

Trump’s contempt for the inherent power of Congress cannot stand. It is the most dictatorial move he has initiated since becoming president.

Congress has a constitutional duty to respond forcefully, using its own inherent power of contempt.