Judge Claud Neilson earns dubious "award" for sending me to jail and trampling the First Amendment

The Alabama judge who unlawfully ordered my incarceration in a defamation case has been cited for committing one of the year's "more egregious or ridiculous affronts to free expression."

The Thomas Jefferson Center for the Protection of Free Expression, based at the University of Virginia, has been issuing "Jefferson Muzzles Awards" for 24 years to those who have wantonly trampled First Amendment rights.

Claud Neilson, a retired circuit judge the Alabama Supreme Court specially appointed to hear a lawsuit brought against me by Republican political figures Rob Riley and Liberty Duke, was among eight individuals or entities to receive "Muzzles Awards" for 2014-15.

Josh Wheeler, director of the Thomas Jefferson Center, says the "Muzzles" are designed to spotlight First Amendment violations that might not have made front pages around the world. From a center press release:

Josh Wheeler, director of the Thomas Jefferson Center, says people might be as surprised by what is not on the list this year as they are by what is. “At several points during the past year, the news was understandably dominated by coverage of the Charlie Hebdo murders in Paris, the café shooting in Copenhagen, and the threats against theaters screening the movie The Interview. While the Thomas Jefferson Center stands united with those condemning violence as a response to speech, our mission has always been focused on meeting challenges to the rights and principles enshrined in the U.S. Constitution. This year, as always, the Jefferson Muzzles reflect that focus.

Wheeler also believes it is important for the Jefferson Muzzles to include lesser-known acts of censorship. “It challenges the assumption held by many that, because of the First Amendment, attempts at censorship are few and far between in this country. In fact, such acts occur every day. Our hope is that the Jefferson Muzzles help to dispel the complacency with which many view free speech issues.”

The mayor of Peoria, Illinois; a district attorney in Bedford County, Pennsylvania; the administration of a New Jersey community college; and the administration of the University of Illinois at Urbana-Champaign are among those joining Neilson as "winners" of the dubious awards. The Associated Press picked up on the Muzzles Award story last night, and it ran at al.com, seeing as how one of the chief "winners" is from Alabama.

Here is the citation for Neilson's "award":

Alabama Circuit Court Judge Claud D. Neilson for ignoring a basic tenant of defamation law that “equity will not enjoin a libel” and holding blogger Roger Shuler in contempt of court until he removed allegedly defamatory statements from his website. Shuler spent five months in jail before finally agreeing to remove the statements because he felt he could not endure jail any longer.

(Note: It's not quite accurate to say I felt I could not endure jail any longer. Obviously, I wanted to get out ASAP, but the main reason had to do with my physical well-being. I had witnessed an inmate suicide and numerous fights or near fights and feared for my safety.)


The Jefferson Center then provides more details about Neilson's unlawful actions in my case:

Alabama resident Roger Shuler is a former newspaper reporter who since 2007 has maintained the blog Legal Schnauzer. The blog aims to “scale all obstacles in pursuit of truth and justice” and since its founding Shuler has used it to allege a wide variety of illegal or unethical activities by Alabama’s public officials and political figures.

Judge Claud Neilson

In late 2013, Shuler posted claims that Rob Riley, son of a former Alabama Governor and active member of the Republican Party, was engaged in an extra-marital affair. Riley strongly denied the allegation and went to court seeking an injunction prohibiting Shuler from writing anything further about the alleged affair and asking that all posts about Riley be removed from the blog. At a hearing in which Shuler was not present, acting Circuit Judge Claud Neilson issued the requested injunction, effectively placing a prior restraint on Shuler’s speech. Shuler did not comply with the injunction, however, and not only refused to remove his earlier posts on Riley but also soon wrote a new one. Shuler’s non-compliance landed him in jail for contempt of court. He remained in jail for 5 months until he could not bear incarceration any longer. In March 2014, Shuler had his wife remove the allegedly defamatory posts about Riley and he was released from jail.*

While in many circumstances it is not unusual to find someone in contempt of court for refusing to obey a court order, it is virtually unheard of in the context of allegedly defamatory speech. Were it otherwise, individuals could effectively silence critics by merely alleging their speech to be defamatory without actually having to prove it. To avoid this, the established remedy for reputation harming falsehoods is post-publication relief, not pre-publication censorship. Yet Judge Neilson issued an injunction without any finding that Shuler’s posts about Riley were defamatory. By issuing a prior restraint on Shuler’s speech, Judge Neilson employed a legal mechanism that the U.S. Supreme Court has described as “the most serious and the least tolerable infringement on First Amendment rights.” Moreover, Judge Neilson’s unconstitutional injunction deprived a U.S. citizen of his liberty for 5 months. In hopes that it will inspire him to learn what any law student in a basic First Amendment course already knows, Alabama Judge Claud Neilson is awarded a 2015 Jefferson Muzzle.

*When a law enforcement officer went to Shuler’s house to arrest him for contempt of court, an altercation occurred resulting in a resisting arrest charge against Shuler. That matter involves legal issues that are not relevant for the purposes of this Muzzle.

The full Muzzles press release can be viewed below. Of the eight cases, mine is the only one that involves incarceration of a citizen. A strong argument could be made that Neilson's actions were far and away the most serious and outrageous infringement of First Amendment rights on the list:

Jefferson Center Muzzle Awards by Roger Shuler

Clarence Thomas' "gifting" defense in the Harlan Crow scandal has been roundly rejected by federal courts, so why is the justice getting away with such a scam?

Clarence Thomas fishing at Harlan Crow's private resort.

When Clarence Thomas tries to explain his habit of accepting lavish gifts from conservative money man Harlan Crow, it usually is in the form of what commonly is called the "gifting" defense. The gist of the argument is that Thomas and Crow are such dear, close friends that the billionaire can't resist heaping big bounty on his berobed buddy -- so, therefore, it could not have anything to do with that other "B word" -- bribery.

Federal courts, however, have roundly rejected "gifting" as a defense to bribery -- including in two highly publicized Alabama cases -- so why aren't Thomas and Crow about to be subjects of an investigation and possible prosecution? It has happened to other political figures, but we are to believe that Thomas and Crow hold exalted status, above the fray -- and the law? That's not how it's supposed to work, according to a post today at DonaldWatkins.com.

A longtime Alabama attorney and entrepreneur, Watkins says the United States is the only country in the civilized Western world that would tolerate the kind of corruption that is present in the Thomas-Crow relationship. So, why have authorities done nothing about it? Maybe it's because Thomas and Crow really are above the law? Under the headline "Message for Clarence Thomas Defenders: Don’t Worry, Unequal Justice is Readily Available at the DOJ," Watkins writes:

There is no question that billionaire Harlan Crow showered U.S. Supreme Court Associate Justice Clarence Thomas with millions of dollars in unreported private jet flights, luxury yacht trips, spectacular vacation stays in expensive resorts at exotic ports of call around the world, house payments for Thomas' mother, and tuition for his adopted son, all since 1996. It took ProPublica’s recent investigative reports to fully “out” Clarence Thomas as a longtime “pay-to-play” crook.

In addition to Harlan Crow's undisclosed "gifts" to Clarence Thomas, his buddy Leonard Leo funneled secret payments of at least $80,000 to his wife, Ginni Thomas, in 2012. The payments to Ginni were accompanied by instructions to middlewoman/GOP powerbroker/money launderer Kellyanne Conway to make "no mention of Ginni" in this unreported payment arrangement.

I first wrote about Clarence Thomas’ long-running "pay-to-play” scheme on June 24, 2022. Thomas' corruption has gotten much worse since my article was published. On May 5, 2023, I wrote about Harlan Crow’s and Leonard Leo’s “gifts” to Clarence Thomas.

No country in the civilized Western world would tolerate this kind and level of public corruption on its supreme court, except the United States. In any other civilized Western country, Clarence Thomas would be in jail by now.

So why is a blind eye being turned toward apparent skulduggery involving the nation's highest court? Watkins writes:

Clarence Thomas’ defense to conduct that is obviously bribery is this: These were “gifts” from longtime friends. Thomas claims he did not report these "gifts" on his annual financial disclosure forms because he did not think it was necessary to do so.

This “gifting” defense was expressly raised and rejected in United States v. Jewell C. “Chris” McNair, 605 F.3d 1152 (11th Cir. 2010) and Unites States v. Larry P. Langford, 647 F.3d 1309 (11th Cir.2011).

The first of the two cases cited above involved Chris McNair, a former member of the Alabama Legislature and a former Jefferson County commissioner. The second case involved Larry Langford, a former member of the Jefferson County Commission and former mayor of both Birmingham and Fairfield, AL.

How is this for irony? The U.S. Supreme Court, including Clarence Thomas, rejected the "gifting" defense in the McNair and Langford cases. But when Clarence Thomas engages in similar conduct, it's A-OK? That notion does not please Donald Watkins (or me), and it should not please you. Writes Watkins:

Clarence Thomas and his fellow Justices on the Supreme Court declined to embrace and validate the "gifting" defense in the Chris McNair and Larry Langford bribery cases when the Supreme Court denied both defendants' Petitions for a Writ of Certiorari.

As articulated by McNair and Langford in their Petitions to the Supreme Court, the “gifting” defense asserts that it is not an act of bribery for a public official to accept high dollar “gifts” from “loving” friends who befriend the defendant after he/she assumes public office. To the recipient, these "gifts" are analogous to "love offerings" to a church pastor.

No Justice on the Supreme Court, including Clarence Thomas, has ever embraced this outlandish proposition of law.

Furthermore, the federal courts in the Chris McNair and Larry Langford cases ruled that a defendant's failure to disclose or report these “gifts” on his/her ethics forms is probative evidence of the defendant's “corrupt intent.” Clarence Thomas' failure to report his receipt of Harlan Crow's and Leonard Leo's "gifts" evolved into a hardcore pattern and practice of "corrupt intent."

Do we have a double standard of justice in an era where Donald Trump wants to Make America Great Again (MAGA), even though he failed to do it in his first term? A double standard, indeed, seems to be in place -- and "law-and-order Republicans" apparently have no problem with that, as Watkins states:

Now that the spotlight is shining on him, Clarence Thomas obviously seeks a different judicial ruling on his failure to report the "gifts" in his case. What is more, Thomas' defenders believe he deserves preferential treatment in his case. After all, Thomas is a MAGA Republican Supreme Court Justice who was appointed to his judgeship for life.

Yet, the U.S. Constitution does not provide a carve-out for "gifts" received by Clarence Thomas that would make him exempt from a federal law prosecution for bribery. It would not be appropriate to create one now just for Thomas.

Interestingly, Clarence Thomas has offered no legal defense as to why he failed to report the value of the multimillion-dollar “gifts” that were conferred upon him by Harlan Crow, Leonard Leo, and other big donors on his federal tax returns. Perhaps, that is because there is none.

In Larry Langford’s case, his failure to report the $250,000 in “gifts” that he received from his benefactors on his tax returns was sufficient to convict him on tax-fraud charges (and other criminal offenses).

Is there any need for Thomas' defenders to worry? Nope, says Watkins, America's two-tiered "justice system" will keep him safely protected:

Clarence Thomas' defenders (and Thomas himself) have no worries about criminal charges in his case for three reasons.

First, Thomas is billionaire Harlon Crow’s “House Nigga.” He is the premier "Uncle Tom" in America.

Second, Thomas has revered status in the MAGA wing of the Republican Party. He is a rock star with MAGA Republicans.

Even though legal scholars have rated Clarence Thomas as one of the four worst Justices in the history of the Supreme Court, and despite the fact that Thomas lacks character, ethics, and integrity, MAGA Republicans love him, unconditionally.

Clarence Thomas' rock-star status within the GOP makes him immune from a federal criminal prosecution during Joe Biden's presidency. Biden has a 36% approval rating in the latest ABC News/Washington Post poll released yesterday. As a practical matter, Biden cannot afford a court fight involving Clarence Thomas' various bribery schemes, ethics violations, and tax fraud. The only criminal case Biden really cares about right now is Hunter Biden's.

Third, unequal justice is available to Clarence Thomas under U.S. Attorney General Merrick Garland. If there is any doubt about this point, just ask Matt Gaetz, Marjorie Taylor Greene, and George Santos how it feels to be a member of this protected class of public officials. Wells Fargo, Silicon Valley Bank, First Republic Bank, and the Southern Company can also vouch for joys of this special "I am above the law" protected status, as well.

Merrick Garland and his Department of Justice are weak, afraid, and impotent when it comes to enforcing federal criminal laws against members of the protected MAGA hierarchy and big-time Wall Street thugs.

In closing, I have this message for all Clarence Thomas defenders: When it's all said and done, Clarence Thomas will be okay. He can keep accepting his multimillion-dollar “gifts.” Thomas seems to relish the "gift" of a luxurious lifestyle from his "loving" friends.

At the end of the day, Clarence Thomas is a role model for what MAGA Republicans seek and demand in federal judges! Ethical conduct is desirous, but optional. The flawless execution of the MAGA political agenda from the Supreme Court bench is mandatory. Nothing else matters.

A Plan for Fixing Our Broken Justice Department

Barack Obama is not the first U.S. president to inherit a Justice Department that was soiled by his predecessor. Thomas Jefferson faced a similar mess, and he took decisive steps to fix it--reviewing abusive prosecutions, terminating cases, pardoning those who had been wrongfully convicted. A prominent legal-affairs reporter says new attorney general Eric Holder should follow Jefferson's approach.

What kind of Justice Department did Holder inherit? Let's just say it's as if Holder returned home one night to find someone had left the rusting hulk of an automobile, resting on concrete blocks in his backyard.

Is the "old girl" beyond repair? No. But her prognosis is dire. And Holder is going to need lots of grit and elbow grease to get her running again.

Fortunately, Holder can turn to a pretty fair shade-tree mechanic, of the legal sort. Goes by the name of Scott Horton. Writes for Harper's magazine. Works for Columbia University School of Law. Has good rates.

Horton has taken a gander at the mess in Holder's backyard. And he has a few ideas, five to be exact, on how to tune her up and get her running again.

First, Horton notes, Holder is going to need the support of those above him. And President Barack Obama presented encouraging remarks at Holder's installation ceremony last week. A sampling:

And that's what's always distinguished this nation--that we are bound together not by a shared bloodline or allegiance to any one leader or faith or creed, but by an adherence to a set of ideals. That's the core notion of our founding--that ours is a "government of laws, and not men." It is the motto inscribed on the library of my law school alma mater: "Not under man but under God and law."

I encourage Schnauzer readers to examine all five of Horton's recommendations for breathing life back into our Justice Department. But here's the one that jumped out at me:

Instigate a thorough review of political prosecutions, overturn prosecutions that were abusive, and take appropriate disciplinary actions with respect to those who instigated them. Following the path of the lowliest authoritarian dictatorships, the Bush Administration used the Justice Department to bring criminal prosecutions against political adversaries for partisan political purposes. That’s no longer debatable. It’s an established fact. Yet the Justice Department has yet to lift a finger to correct these abuses. Victims of the worst of these prosecutions languish in prison, and the prosecutors who disgraced their offices remain on the job—indeed, this weekend I read that one was just promoted in an act of calculated “burrowing.” When Thomas Jefferson came to office following the elections of 1800 he was forced to deal with a situation almost exactly like the one that Holder now faces. He called the two-year terror-spree of political prosecutions by the Federalists the “Reign of Witches.” Jefferson and his attorney general quickly reviewed the abusive prosecutions, terminated cases, and issued pardons to the substantial number of people who had been wrongfully convicted in our still highly imperfect criminal justice system. Eric Holder would do well to study the precedent Jefferson furnished. He needs to take this legacy of abuse of the powers of the Justice Department and confront it directly.

This is powerful stuff from Horton. It is a valuable history lesson, showing that our Justice Department has been abused before. Thomas Jefferson took decisive steps to repair the mess he inherited. Horton suggests that Holder make history repeat itself.

I would add one other step: Ensure that those who soiled our Justice Department are held accountable, criminally if that is appropriate. And be sure a civil mechanism is available so that victims have a chance to be made whole.

Is Holder up to the task? Obama, after making a joke about his friend's abilities on the basketball court, said the answer is yes:

Now, I can't vouch for Eric's skills on the basketball court--(laughter)--but I can confirm that he is thoroughly prepared to take on the law enforcement challenges of this new century. As a student of history, he also knows history's lessons about what happens when we let politics and ideology cloud our judgment -- and let fear and anger, rather than reason, dictate our policy. These are mistakes he will not repeat. Because in the end, Eric comes to this job with only one agenda: to do what is right under the law.

Bob Riley Might Face Tough Questions Under Oath

Alabama Governor Bob Riley might soon face a deposition in a lawsuit that stems from his efforts to land a $13-million, no-bid contract for a Virginia company called Paragon Source.

The Montgomery law firm of Thomas Means Gillis and Seay claims it is owed $78,000 for its work with the Alabama Legislature's Contract Review Committee on the Paragon Source case. Riley has blocked payment to the firm, and it countered with a lawsuit. Riley sought to have the lawsuit dismissed, but a state judge has allowed it to move forward and given both sides until September 20 to conduct depositions.

Attorney Thomas Gallion represents the Thomas Means firm and says he plans to depose four individuals, including Riley, reports Bob Gambacurta of the Montgomery Independent.

Depositions usually allow for wide-ranging questions, so the governor could face some uncomfortable moments. We wouldn't be surprised if the governor turns to his buddies on the Alabama Supreme Court for protection if the questioning veers into touchy territory, such as his campaign funding from out-of-state gambling sources or the actions of his son, Homewood attorney Rob Riley.

The controversy started when members of the Legislative Review Committee objected to the Paragon Source contract after learning the company had no business address, business license, or Web site. Rep. Alvin Holmes (D-Montgomery), chairman of the committee, claimed the business operated out of the trunk of the owner's car and led the fight to block the contract, using the Thomas Means firm.

As so often happens in Alabama, race became an issue. Reports Gambacurta:

The Thomas Means law firm billed the state for its services and received a partial payment last year. However, the Comptroller's Office refused the pay the $78,000 balance and a spokesman for the governor said since the committee did not have standing to sue, the committee's law firm was not entitled to compensation.

Thomas, Means, Gillis and Seay, a law firm made up almost entirely of black attorneys, then hired Gallion to sue the Comptroller in an effort to collect the balance due of $78,000.

Holmes stated publicly that he had been told that the governor said, "Do not pay that black law firm."

All judges in Montgomery County recused themselves, so the case is being heard by Jefferson County Circuit Judge Tom King. Riley's actions drew concern from the judge. Reports Gambacurta:

On Monday, King ruled in favor of the law firm, by denying the defendant Comptroller's motion to dismiss. In his ruling, Judge King offered a stinging rebuke of Gov. Riley for the appearance of retaliation and racism in this case.

"The days of political retaliation and institutional racism in Alabama should remain only on the silver screens of Hollywood," King wrote. "The Governor of this Great State should treat all races and ethnicities equally be they majority or minority, favored or disfavored. Although this Court truly hopes these allegations prove to be false, only depositions and inquiry into the facts will show the truth."

Gallion says the case boils down to the Riley administration's lack of transparency regarding the Paragon Source contract:

"The reason Gov. Riley is essential in this thing is it's clear that the governor's office is calling the shots on not producing the Paragon Source no-bid contract documents, which is the genesis of this whole matter and why the Legislative Contract Review Committee hired the Thomas Means law firm.

"That's what this whole thing is about: the $13 million Paragon Source no-bid contract. Nobody in the governor's office, the Finance Department or the Comptroller's Office would produce any documents pertaining to this Paragon Source contract.

"What's the governor covering up? Why will he spend taxpayers' money to try to fight something in order just to continue to keep the public from knowing about the no-bid contract? That's the whole bottom line," Gallion said.

Gallion has sought to depose Riley before, in the case of insurance executive John Goff. A judge, however, dropped Riley from the case, so that deposition never took place. It appears the governor will be facing questions under oath this time:

Gallion added: "It's very simple, they're retaliating against and punishing Thomas, Means, Gillis and Seay and the Legislative Oversight Committee for doing their job and trying to get the records for the public to see on Paragon Source. And if that's not the case, it's very simple, under the Alabama Open Records Act, the governor should produce these records, the Finance Department or whoever has them."

The U.S. Justice Department is investigating a complaint from Holmes that the governor refused to pay the legal fees because most of the firm's attorneys are black. Gallion said the discovery and depositions will get to the bottom of that matter.

"Well, that comes from Alvin Holmes' quote, "Don't pay that black law firm." He has information that was said. That's part of the discovery we're going to find out. We'll find that out. If that's it, then it's clearly institutional racism.

"Now I don't care whether they're a black law firm or white law firm, Democrat, Republican or Whig, the Alabama taxpayer deserves to have and view all of the records pertaining to the Paragon Source contract," Gallion said.

Bob Riley Caves Rather Than Give Testimony Under Oath

What can make an arrogant Republican crumble in fear? The thought of having to testify under oath about his corrupt actions.

That's the lesson to take from reports that Alabama Governor Bob Riley has agreed to settle a lawsuit, in the face of a tight deadline for his deposition. A state judge had refused to dismiss the lawsuit and given both sides until September 20 to complete depositions--and opposing counsel had indicated that Riley would be among those questioned under oath.

Knowing that depositions can be wide ranging--and this one could have covered issues related to campaign finance, no-bid contracts, and other uncomfortable matters--Riley decided it would be a good idea to pay up.

Reports the Associated Press:

Gov. Bob Riley has agreed for the state to pay the legal fees of a law firm that a legislative committee hired to sue the governor over an unbid computer contract, officials said Wednesday.

Tommy Gallion, an attorney who represented the law firm, said the governor agreed to pay the $78,000 sought by Thomas, Means, Gillis and Seay. Riley also agreed to a payment of about $15,000 to Gallion. The Montgomery law firm had originally in February asked the state to pay $26,740 for its work representing the Legislature's Contract Review Committee.

You can always count on a Riley spokesperson to make a cartoonish attempt to explain away the governor's problems, and Jeff Emerson doesn't disappoint this time. Reports AP:

Riley's communications director, Jeff Emerson, confirmed the governor had agreed to settle the case to avoid costly, drawn-out litigation.

The settlement came after Jefferson County Circuit Judge Tom King last month denied a motion by Riley and state Comptroller Thomas White to dismiss the lawsuit. Emerson said King's ruling made it apparent he would eventually order the state to pay the legal fees.

"We believe the judge would not have changed his mind at trial and the state would have been forced to appeal, which would have added to the cost," Emerson said. "Unlike the plaintiffs, we don't want to waste taxpayer money on this political battle against the governor."

Emerson is so full of horse feces, the stuff must be oozing from his eye sockets. The facts indicate that Riley's decision to settle had nothing to do with his concern for taxpayers.

Riley could have given a deposition and still saved the taxpayers money by resolving the case shortly thereafter. In fact, if the governor really wanted to make sure the public knew the truth at no cost, he could have paid the deposition expenses out of his own pocket.

But he chose to settle matters now--before the September 20 deadline--because he did not want to have to give a deposition. Specifically, he did not want to face the possibility of having to testify under oath about the campaign support he received from Mississippi gambling interests--laundered through Jack Abramoff--and the huge gobs of state dollars he has shipped to family members and their associates.

What else can we learn from the lawsuit settlement? It appears that "Big Boss" Bob Riley might be in a weakened state. Is it possible that some folks don't fear the governor anymore?

Consider Jefferson County Circuit Judge Tom King, who was assigned to the Thomas Means case after Montgomery County judges recused themselves. First, would the Montgomery judges have recused themselves from such a case just a year or two ago, when Riley seemed invincible? We doubt it. And what about King, the guy who refused to dismiss the lawsuit and then put Riley under a tight deadline for a deposition? Is he an unusually ethical and fearless judge? It's possible, but we doubt it. If the Thomas Means case had come before him a year or two ago, we suspect King would have let the governor off the hook.

Have conditions changed for perhaps the most corrupt governor in Alabama history? Well, Riley is a lame-duck governor who will leave office in January 2011. His hand-picked successor, Bradley Byrne, got thrashed in the Republican Party primary. And even Riley's trusted friends on the Alabama Supreme Court seem reluctant to help at the moment, given that they are under investigation for possible misconduct connected to gambling-related rulings that went in the governor's favor.

We felt certain that Riley would avoid a deposition in the Thomas Means lawsuit by filing an emergency motion with the Alabama Supreme Court. But Justice Glenn Murdock, a strong Riley ally who has written numerous favorable rulings for the governor, is facing scrutiny for failing to disclose conflicts of interest-- so that easy path might be closed for now.

If Alabama Democrats were smart, they would pounce now and make Riley pay dearly for visiting untold sleaze upon our state over the past eight years. But Alabama Democrats have proven time and again that they are not so sharp. And with the Obama administration seemingly incapable of appointing a real U.S. attorney in Montgomery, the feds aren't likely to do anything about it.

Our guess is that Bob Riley will eventually walk away scot free, and his family members and cronies will continue to hose Alabama citizens for years.

But to watch the governor squirm when faced with having to give a deposition? It was maybe our favorite political moment of 2010--and it was fun while it lasted.

Rogue judges run rampant around the country, but many of them escape punishment because of lax disciplinary systems and little media scrutiny

Marquita Johnson (Reuters)

It must be impossible to write an article about court corruption without focusing on at least one Alabama judge. That seems to be the take-home lesson from a piece at Reuters under the headline, "Special Report: Thousands of U.S. judges who broke laws, oaths remained on the bench." Heck, even the dateline is from Alabama. Write reporters Michael Berens and John Shiffman:

MONTGOMERY, Alabama (Reuters) - Judge Les Hayes once sentenced a single mother to 496 days behind bars for failing to pay traffic tickets. The sentence was so stiff it exceeded the jail time Alabama allows for negligent homicide.

Marquita Johnson, who was locked up in April 2012, says the impact of her time in jail endures today. Johnson’s three children were cast into foster care while she was incarcerated. One daughter was molested, state records show. Another was physically abused.

“Judge Hayes took away my life and didn’t care how my children suffered,” said Johnson, now 36. “My girls will never be the same.”

Fellow inmates found her sentence hard to believe. “They had a nickname for me: The Woman with All the Days,” Johnson said. “That’s what they called me: The Woman with All the Days. There were people who had committed real crimes who got out before me.”

In our experience, judges often get away with such brazen unlawfulness; Hayes did not:

In 2016, the state agency that oversees judges charged Hayes with violating Alabama’s code of judicial conduct. According to the Judicial Inquiry Commission, Hayes broke state and federal laws by jailing Johnson and hundreds of other Montgomery residents too poor to pay fines. Among those jailed: a plumber struggling to make rent, a mother who skipped meals to cover the medical bills of her disabled son, and a hotel housekeeper working her way through college.

How did Hayes explain such judicial hackery? He blamed it on, well, ignorance of the law -- and he was a judge:

Hayes, a judge since 2000, admitted in court documents to violating 10 different parts of the state’s judicial conduct code. One of the counts was a breach of a judge’s most essential duty: failing to “respect and comply with the law.”

Despite the severity of the ruling, Hayes wasn’t barred from serving as a judge. Instead, the judicial commission and Hayes reached a deal. The former Eagle Scout would serve an 11-month unpaid suspension. Then he could return to the bench.

Until he was disciplined, Hayes said in an interview with Reuters, “I never thought I was doing something wrong.”

This week, Hayes is set to retire after 20 years as a judge. In a statement to Reuters, Hayes said he was “very remorseful” for his misdeeds.

Community members are angry that Hayes was allowed to retire rather than being forcefully kicked off the bench:

“He should have been fired years ago,” said Willie Knight, pastor of North Montgomery Baptist Church. “He broke the law and wanted to get away with it. His sudden retirement is years too late.”

Hayes is among thousands of state and local judges across America who were allowed to keep positions of extraordinary power and prestige after violating judicial ethics rules or breaking laws they pledged to uphold, a Reuters investigation found.

Judges have made racist statements, lied to state officials and forced defendants to languish in jail without a lawyer – and then returned to the bench, sometimes with little more than a rebuke from the state agencies overseeing their conduct.

Rogue judges are a problem around the country, Reuters found:

Recent media reports have documented failures in judicial oversight in South Carolina, Louisiana and Illinois. Reuters went further.

In the first comprehensive accounting of judicial misconduct nationally, Reuters reviewed 1,509 cases from the last dozen years – 2008 through 2019 – in which judges resigned, retired or were publicly disciplined following accusations of misconduct. In addition, reporters identified another 3,613 cases from 2008 through 2018 in which states disciplined wayward judges but kept hidden from the public key details of their offenses – including the identities of the judges themselves.

All told, 9 of every 10 judges were allowed to return to the bench after they were sanctioned for misconduct, Reuters determined. They included a California judge who had sex in his courthouse chambers, once with his former law intern and separately with an attorney; a New York judge who berated domestic violence victims; and a Maryland judge who, after his arrest for driving drunk, was allowed to return to the bench provided he took a Breathalyzer test before each appearance.

The news agency’s findings reveal an “excessively” forgiving judicial disciplinary system, said Stephen Gillers, a law professor at New York University who writes about judicial ethics. Although punishment short of removal from the bench is appropriate for most misconduct cases, Gillers said, the public “would be appalled at some of the lenient treatment judges get” for substantial transgressions.

Just from the past year alone:

In Utah, a judge texted a video of a man’s scrotum to court clerks. He was reprimanded but remains on the bench.

In Indiana, three judges attending a conference last spring got drunk and sparked a 3 a.m. brawl outside a White Castle fast-food restaurant that ended with two of the judges shot. Although the state supreme court found the three judges had “discredited the entire Indiana judiciary,” each returned to the bench after a suspension.

In Texas, a judge burst in on jurors deliberating the case of a woman charged with sex trafficking and declared that God told him the defendant was innocent. The offending judge received a warning and returned to the bench. The defendant was convicted after a new judge took over the case.

“There are certain things where there should be a level of zero tolerance,” the jury foreman, Mark House, told Reuters. The judge should have been fined, House said, and kicked off the bench. “There is no justice, because he is still doing his job.”

Judicial misconduct specialists say such behavior has the potential to erode trust in America’s courts and, absent tough consequences, could give judges license to behave with impunity.

“When you see cases like that, the public starts to wonder about the integrity and honesty of the system,” said Steve Scheckman, a lawyer who directed Louisiana’s oversight agency and served as deputy director of New York’s. “It looks like a good ol’ boys club.”

That’s how local lawyers viewed the case of a longtime Alabama judge who concurrently served on the state’s judicial oversight commission. The judge, Cullman District Court’s Kim Chaney, remained on the bench for three years after being accused of violating the same nepotism rules he was tasked with enforcing on the oversight commission. In at least 200 cases, court records show, Judge Chaney chose his own son to serve as a court-appointed defense lawyer for the indigent, enabling the younger Chaney to earn at least $105,000 in fees over two years.

In February, months after Reuters repeatedly asked Chaney and the state judicial commission about those cases, he retired from the bench as part of a deal with state authorities to end the investigation.

Tommy Drake, the lawyer who first filed a complaint against Chaney in 2016, said he doubts the judge would have been forced from the bench if Reuters hadn’t examined the case.

“You know the only reason they did anything about Chaney is because you guys started asking questions,” Drake said. “Otherwise, he’d still be there.”

The mainstream media (MSM) rarely takes a look at crooked judges, so Reuters deserves huge props for tackling the subject. I would love to see them do an expanded version of the story, and I could give them the names of dozens of victims, with details about cheat jobs. After all, I'm "The guy who got arrested for blogging." That was MY nickname among inmates at the Shelby County (AL) Jail.

Here is what the University of Virginia's Thomas Jefferson Center for the Protection of Free Expression said about Judge Claud Neilson, the hatchet man on my case:

The Thomas Jefferson Center for the Protection of Free Expression, based at the University of Virginia, has been issuing "Jefferson Muzzles Awards" for 24 years to those who have wantonly trampled First Amendment rights.

Claud Neilson, a retired circuit judge the Alabama Supreme Court specially appointed to hear a lawsuit brought against me by Republican political figures Rob Riley and Liberty Duke, was among eight individuals or entities to receive "Muzzles Awards" for 2014-15.

How bad is the disciplinary system for judges? Real bad, reports Reuters:

State and local judges draw little scrutiny even though their courtrooms are the bedrock of the American criminal justice system, touching the lives of millions of people every year.

The country’s approximately 1,700 federal judges hear 400,000 cases annually. The nearly 30,000 state, county and municipal court judges handle a far bigger docket: more than 100 million new cases each year, from traffic to divorce to murder. Their titles range from justice of the peace to state supreme court justice. Their powers are vast and varied – from determining whether a defendant should be jailed to deciding who deserves custody of a child.

Each U.S. state has an oversight agency that investigates misconduct complaints against judges. The authority of the oversight agencies is distinct from the power held by appellate courts, which can reverse a judge’s legal ruling and order a new trial. Judicial commissions cannot change verdicts. Rather, they can investigate complaints about the behavior of judges and pursue discipline ranging from reprimand to removal.

Few experts dispute that the great majority of judges behave responsibly, respecting the law and those who appear before them. And some contend that, when judges do falter, oversight agencies are effective in identifying and addressing the behavior. “With a few notable exceptions, the commissions generally get it right,” said Keith Swisher, a University of Arizona law professor who specializes in judicial ethics.

Others disagree. They note that the clout of these commissions is limited, and their authority differs from state to state. To remove a judge, all but a handful of states require approval of a panel that includes other judges. And most states seldom exercise the full extent of those disciplinary powers.

As a result, the system tends to err on the side of protecting the rights and reputations of judges while overlooking the impact courtroom wrongdoing has on those most affected by it: people like Marquita Johnson.

Reuters scoured thousands of state investigative files, disciplinary proceedings and court records from the past dozen years to quantify the personal toll of judicial misconduct. The examination found at least 5,206 people who were directly affected by a judge’s misconduct. The victims cited in disciplinary documents ranged from people who were illegally jailed to those subjected to racist, sexist and other abusive comments from judges in ways that tainted the cases.

The number is a conservative estimate. The tally doesn’t include two previously reported incidents that affected thousands of defendants and prompted sweeping reviews of judicial conduct.

In Pennsylvania, the state examined the convictions of more than 3,500 teenagers sentenced by two judges. The judges were convicted of taking kickbacks as part of a scheme to fill a private juvenile detention center. In 2009, the Pennsylvania Supreme Court appointed senior judge Arthur Grim to lead a victim review, and the state later expunged criminal records for 2,251 juveniles. Grim told Reuters that every state should adopt a way to compensate victims of judicial misconduct.

“If we have a system that holds a wrongdoer accountable but we fail to address the victims, then we are really losing sight of what a justice system should be all about,” Grim said.

In another review underway in Ohio, state public defender Tim Young is scrutinizing 2,707 cases handled by a judge who retired in 2018 after being hospitalized for alcoholism. Mike Benza, a law professor at Case Western Reserve University whose students are helping identify victims, compared the work to current investigations into police abuse of power. “You see one case and then you look to see if it’s systemic,” he said.

The review, which has been limited during the coronavirus pandemic, may take a year. But Young said the time-consuming task is essential because “a fundamental injustice may have been levied against hundreds or thousands of people.”

Is Alabama Governor Acting Like a Closeted Racist?

Perhaps more than any other state, Alabama and its governor's office are associated with racism.

Has much changed since the dark days of the 1960s? Recent actions of the current governor, Republican Bob Riley, suggest they have not.

In fact, two state legislators have accused Riley of practicing racial discrimination. We think they might have a point, especially when you consider Riley's affiliation with an organization that has a history of excluding blacks.

The current dispute centers on Riley's decision last week to pay up to $100,000 to hire one law firm in order to avoid paying another law firm $70,000. The firm that Riley hired--Wallace Jordan Ratliff & Brandt of Birmingham--is predominantly white. The firm that claims it is owed money from the state--Thomas Means Gillis & Seay of Montgomery--is predominantly black.

Here is how the Montgomery Advertiser describes the controversy:

The firm of Thomas, Means, Gillis & Seay has sought $70,000 for legal work it performed on behalf of the state's legislative contract review oversight committee when the committee attempted to block Gov. Bob Riley from signing a $13-million no-bid contract with Paragon, a company with no website, no listed phone number and documentation that listed its headquarters as personal residences.

A Jefferson County Circuit Court judge dismissed the committee's suit in December 2009, saying that the legislation that created the committee did not give it the power to sue.

Two months after that ruling, the state Department of Finance and state Comptroller Thomas White notified the clerk of the House of Representatives that it would not pay the firm because the committee and its chairman were not constitutionally empowered to file lawsuits.

During its regular session, the Alabama Legislature passed a resolution to pay Thomas Means Gillis & Seay. But Riley vetoed the measure, and that prompted the law firm to sue for the $70,000 it claims it is owed. That led Riley to approve a $100,000 contract for a law firm to fight the suit.

After Riley's veto in early May, State Rep. Alvin Holmes accused the governor of practicing racism. Similar charges came last week after an announcement about the $100,000 contract:

State Sen. Quinton Ross, D-Montgomery, said despite the outcome of the initial suit, the fact is Thomas, Means, Gillis & Seay did the work that they were hired to do.

"I have a problem with the administration taking this retaliatory action against a black law firm," Ross said. "I've not seen this administration do this against other firms."

This is not the first time questions have been raised about Riley's stance on matters of race. The Associated Press reported in 2006 that Riley was a member of a Masonic organization that critics say excludes blacks. Reported AP:

Riley, a Republican who is running for re-election against Democratic Lt. Gov. Lucy Baxley, is a member of a Masonic lodge in his east Alabama hometown of Ashland that is affiliated with the Grand Lodge of Alabama, a statewide group with no known blacks among more than 30,000 members.

It appears that Holmes and Ross have reasonable grounds to question Riley's motives in taking action against a black law firm.

It appears the people of Alabama have reasonable grounds to wonder if their state has been led by a racist for the past eight years.

Montgomery lawyer Tommy Gallion analyzes the Legal Schnauzer "arrest for blogging" as part of the Alabama Cabal's repeated attacks on the First Amendment

 

Who became so unnerved by Tommy Gallion's book on Alabama political corruption that he (or they) tried to sabotage it by causing a statement to be included on the copyright page of the second edition that the book is a work of fiction? We don't have an answer to that one yet, but Gallion has written a letter to Jeff Bezos, CEO of Amazon Publishing, in an effort to solve the mystery. We do know, however, what is in Part Three, which was added to the book for the second edition. It focuses largely on victims of what Gallion calls the "Alabama Cabal." Did something about Part Three help spark the act of sabotage? With the title "Reign of Terror," Gallion obviously is serious about the subject matter. Here is part of his work from Part Three:

From Shadow Government, Southern Style, including Part Three ("Reign of Terror") (2020), by Thomas T. Gallion III; available from Amazon and Kindle eBooks:

 

PART THREE 

REIGN OF TERROR

CHAPTER SEVEN: The Cabal's Raping of Freedom of the Press

VICTIM OF THE CABAL . . . 

1.Legal Schnauzer

 

“Our liberty depends on freedom of the press, and that cannot be limited without being lost.”

-- Thomas Jefferson 

Next, the Rileys went after journalist Roger Shuler, who has an internet publication (a “blog”) called Legal Schnauzer, widely read primarily in Alabama. Roger, like Russ Fine, began exposing the corrupt Rileys. . . . What the Rileys did to shut down Shuler and his blogs is terrifying. 

Allegedly, the Rileys hand-picked a circuit judge from approximately !00 miles away, rather than use the local judges in Shelby County, which is one county south of Jefferson County (Birmingham), and a
Republican-controlled county. What is so alarming is the power the Rileys had over the judicial and
police powers in Republican areas in Alabama. Shuler told me that the out-of-town judge would not
allow the Shulers to even defend themselves and simply found them in contempt for not appearing at a
hearing they did not know about. Carol Shuler has nothing to do with Legal Schnauzer, and they sued
her just to further punish her husband. Here are some of the facts presented in the Shulers’ legal fight and are contained in the court files:

* On October 23, 2013, Shelby County deputies entered Roger Shuler’s home without showing a
warrant nor telling him why he was being arrested. They proceeded to beat him up, shoved him
to the floor three times, and doused him with pepper spray in his garage. One deputy threatened to break Shuler’s arm, handcuffed him, put him in the squad car, and took him to jail for a preliminary injunction issued by the Rileys’ handpicked judge to shut down . . .  portions of
his web site. . . . (At this point, there had been no discovery nor trial on the . . . lawsuit for defamation.)

* Later that night, deputies tried to arrest Carol Shuler, who was asleep in her upstairs bedroom.
She avoided the deputies and they tried more times to arrest her the first week that Roger was in jail. This outrageous conduct continued until Mrs. Shuler was able to get local, state, and national coverage on what [the Rileys were] doing to them; then it suddenly stopped. This is apparently the only journalist imprisoned because of a preliminary injunction, which is in violation of due process and violation of the law in our country for over 200 years.

Serious questions arose during this reign of terror about whether the lawsuit was even filed before the
arrest of Shuler. Shuler could not find out because the judge allowed the file to be sealed without the
defendant agreeing to same. Has any lawyer ever heard of a file being sealed when the defendant cannot even review the file of which he is a party?

Later, Attorney David Grespass met with Shuler in his jail cell and said he had been able to see the
sealed file, and it showed that no summons had been issued at the time of Shuler’s arrest. Shuler was
put in jail by the judge for failure to appear at a hearing for which he had never been served the
summons. Therefore, the preliminary injunction order  is unconstitutional on its face. To make matters worse, Shuler was held in jail for five months, and was not allowed to post bond. He was subjected to a suicide, fights, drugs, bodily threats, and pure Hell.  Shuler had an attorney friend Greg Morris from Fultondale, Alabama. Shuler asked Morris to help him [with the subsequent civil-rights lawsuit in federal court], and [Morris] agreed to do so, but on a limited basis because he had a solo practice and did not have the funds to get involved in a case that would break him. Morris also contacted the Alabama Bar Association and spoke with an attorney and told him what was happening to Shuler. The bar attorney told him to not get involved. Morris had prepared an affidavit as to the facts and was going to file it with the court. The bar attorney told Morris to tell Shuler, “No, no you don’t have permission, you stay away from that...” Morris stated to Shuler, “I don’t know what they are going to do to you, Roger. I can’t imagine why they have such a hard-on. But the bar is telling me, "Greg, do not get any further involved.”

I am sure the bar, being a state agency, was afraid Governor Riley would cut their funding. Again, the bar protects the powerful. Rob Riley could change Will and Trust documents of a client and steal his/her money and they would do nothing to him. The bar did this in the past to a client of mine.

Shuler was not let out of jail until Carol Shuler agreed to go to Roger’s computer system and remove certain posts There was no trial on the defamation suit and no discovery allowed, so who will ever know the truth? That is what I am attempting to get out in the open. One of the most important constitutional rights is not only a trial before a jury to determine the facts, but basic due process under the law. After five months behind bars, Shuler was dragged before the judge in leg irons and released.

For those five months, Carol Shuler lived in fear of leaving her house. Roger and Carol Shuler were law-abiding citizens and had never been arrested. Because he crossed the Rileys, Roger lost everything: his house, his furnishings, his job, and both Shulers had to be medically treated for post-traumatic stress disorder (PTSD). Roger graduated from The University of Missouri School of Journalism, one of the best journalism schools in the country. Without a home and in fear of their lives, the Shulers fled to Springfield, Missouri. They, like Bill Johnson who moved to New Zealand; Nick Bailey, who moved to Puerto Rico; and Richard Scrushy, who moved to Houston, all left Alabama to escape the talons of The Cabal and Riley.

Can anyone even fathom living in a state that allows this type of vengeance inflicted on anyone who voices a different opinion? These are some depraved people. How can the Rileys and the other Cabal members even sleep at night, knowing that they have ruined the lives of so many.

Montgomery lawyer Tommy Gallion, in "Shadow Government, Southern Style" unmasks Alabama's Cabal for repeatedly trashing freedom of the press

Who became so unnerved by Tommy Gallion's book on Alabama political corruption that he (or they) tried to sabotage it by causing a statement to be included on the copyright page of the second edition that the book is a work of fiction? We don't have an answer to that one yet, but Gallion has written a letter to Jeff Bezos, CEO of Amazon Publishing, in an effort to solve the mystery. We do know, however, what is in Part Three, which was added to the book for the second edition. It focuses largely on victims of what Gallion calls the "Alabama Cabal." Did something about Part Three help spark the act of sabotage? With the title "Reign of Terror," Gallion obviously is serious about the subject matter. Here is part of his work from Part Three:

From Shadow Government, Southern Style, including Part Three ("Reign of Terror") (2020), by Thomas T. Gallion III; available from Amazon and Kindle eBooks:

PART THREE 

REIGN OF TERROR

CHAPTER SEVEN: The Cabal's Raping of Freedom of the Press

VICTIMS OF THE CABAL . . . 

1. Bob Martin

2. Russ and Dee Fine

3. Richard Scrushy (former CEO of HealthSouth and non-press target)

 

“Our liberty depends on freedom of the press, and that cannot be limited without being lost.”

-- Thomas Jefferson 

Although I’m often angry with the press, it is the only source to checkmate corrupt politicians. As I
stated earlier, I always wanted to be an investigative journalist and now in the last quarter of the game
of life, I am attempting to do some of that with this book. Perhaps it is my way of fulfilling my bucket list and giving the finger to these corrupt politicians. Perhaps I should be wary, especially where the Rileys are concerned: They put one journalist in jail for five months without bail on an alleged misdemeanor for writing about a member of the their family. This chapter will further scare the Hell out of people who crossed the Rileys. Bob Riley and Rob Riley are as ruthless as Jesse and Frank James, as far as punishing their enemies.

I will start with Bob Martin, one of the finest editors I have ever known. He retired in 2017 as owner and publisher of The Montgomery Independent, a widely read weekly newspaper in Alabama. Martin caught onto Riley’s Indian Casino scam and his attempt to put Milton McGregor out of business while
destroying Tuskegee. Riley, using corrupt FBI agents, tapped Martin’s phone and had the FBI call and
inform him that they had done so. This was nothing but scare tactics to stop Martin from exposing Riley. Martin, the son of a Methodist preacher, remained undaunted and continued to expose the Riley-related corruption.

The Rileys even went after a popular talk-show host and his wife, who exposed the Rileys' blatant
corruption. Russ Fine, PhD, MSPH, and his wife broadcast their conservative talk show out of Birmingham. The Fines are devout Jews and enjoy nationwide respect. Russ, a brilliant individual, is a
graduate of Southern Illinois University, the University of Missouri Medical Center, and the University of Oklahoma Medical Center. Then he became ICRC Director Emeritus Professor of Medicine at the UAB School of Medicine, and Professor of Health Care Organization and Policy at the UAB School of Public Health. His honors are so voluminous that we don’t have room to print them here. Russ and his wife started revealing the Rileys’ corruption and the Rileys tried to get Russ fired from the UAB Medical School. Russ was a tenured professor and too valuable to UAB for them to bow down to the Rileys’pugilistic attempt. However, the Rileys did succeed in having the Fines’ talk show removed from the air.

An investigative reporter, Sandy Frost, on October 11, 2006, published the following: “On Monday,
September 25, two veteran Birmingham, Alabama, radio talk show hosts, Russ and Dee Fine, were fired an hour before their program was scheduled to end, in large part because Alabama Governor Bob Riley is a member of a secret society that is still governed by documents forbidding membership to negroes or other inferior races. Governor Riley was invested with the Rank and Decoration of Knight Commander of the Court of Honor on May 9, 2005, in a private ceremony at the Governor’s Manson ... a reception was held in the Governor’s Mansion, presumably at taxpayer expense.” 

After finding this article by Sandy Frost, I became more curious about this Masonic Lodge to which Riley belonged, and I discovered that they disallowed membership to blacks and other minorities. I am of the opinion that everyone has a right to associate with whomever they so desire, but it did not end there. The blacks have a separate nationwide Masonic Lodge system called Prince Hall Masonic Lodge. This lodge tried for years to be recognized by the nationwide Masonic organizations. That has happened over the years but denied in Alabama and a few other Southern states. It was only when Riley was in his last year as governor and on his way out the door that the Prince Hall Masons were recognized in Alabama and Riley’s Ashville, Alabama, lodge.

The question remains: Did Riley use various brothers in the Alabama lodges to infiltrate juries and influence judges? So far, I have found one such instance in the Richard Scrushy jury during his first trial in Birmingham. All jurors except one had voted for acquittal. This one juror would not back down, and after several days of being sequestered, the jury returned for the final day. Scrushy and his wife, who are both devout Christians, had prayed all night. As the bus carrying the jurors pulled into the courthouse parking lot, the Masonic juror became violently ill and regurgitated repeatedly. He was excused from the jury. In less than one hour, the jury came back and found Richard Scrushy not guilty on all counts. The Lord worked in a most mysterious way that time!

Masons do a great deal of good nationwide. My father, grandfather, and many other members of my
family were Masons. However, when you put a man such as Bob Riley in a position of high authority,
you can expect that he will use his affiliations for his own selfish and political reasons. I am of the
opinion that Riley used several of his Masonic brothers to help in his ploy to convict Siegelman and
Scrushy. As I will cover later, I know he did so in trying to convict Scrushy in his trial in federal court in Birmingham.

I want all the Jewish readers to remember Hitler. The Rileys, rather than gas Dr. Fine, tried to destroy
his and his wife’s careers. They wanted to shut them down and take them off the air. 

Samuel Alito and GOP thugs show in oral argument that they favor Donald Trump over U.S. institutions; how did that happen, and does it involve crimes?

(Francis Chung/Politico)

One might expect that oral arguments at the U.S. Supreme Court (SCOTUS) would be high-minded affairs, conducted by justices with razor-sharp minds, cutting to the core of complex, contentious issues. But last week's proceeding on Donald Trump's claim of presidential immunity revealed that oral arguments are largely a waste of time, marked by "hypotheticals" that are wildly divorced from reality and muddled logic that could cause a reasonable person to ask: "How did these people get through law school, much less winding up on the nation's highest court?"

The logic of one justice, Samuel Alito, was so nonsensical and shortsighted that Michael Tomasky, editor of The New Republic, dubbed it "beyond belief" -- and he did not mean that in a good way. Here is how Tomasky summarized Alito's mind-bending performance:

The associate justice’s logic on display at the Trump immunity hearing was beyond belief. He’s at the center of one of the darkest days in Supreme Court history.

Worst of all, Alito joined with his comrades on the court's right-wing majority to indicate they intend to grant Trump some sort of immunity -- a notion that has zero support in American law, has no place in our history, and could end democracy and the rule of law as we have come to know them.

Justice Ketanji Brown Jackson had a firm grip on possible repercussions, which seemed to elude her colleagues on the right side of the bench. Said Jackson, cutting through all the hot air hanging over the session:

If the potential for criminal liability is taken off the table, wouldn't there be a significant risk that future presidents would be emboldened to commit crimes with abandon while they're in office? 

That scenario might have flown right over Alito's head, but it did not escape Tomasky's notice. Under the headline "Samuel Alito’s Resentment Goes Full Tilt on a Black Day for the Court." Tomasky writes:

On the day Donald Trump took office in January 2017, pondering what he might do to the country’s democratic norms and institutions, I wrote these words: “Trump will destroy them, if keeping Trump on top requires it. Or try to. He might not succeed. And that is where we rest our hope—on conservative judges who will choose our institutions over Trump. Mark my words: It will come to this.”

That hope seemed not misplaced back in 2020 and 2021, when a number of liberal and conservative judges, some of the latter appointed by Trump himself, handed Trump 60 or so legal defeats as he attempted to unlawfully overturn the election results. But after Thursday at the Supreme Court? That hope is dead. The conservative judges, or at least most of them, on the highest court in the land are very clearly choosing Trump over our institutions. And none more belligerently than Samuel Alito.

His line of questioning to Michael Dreeben, the attorney arguing the special counsel’s case, was from some perverse Lewis Carroll universe:

Now if an incumbent who loses a very close, hotly contested election knows that a real possibility after leaving office is not that the president is going to be able to go off into a peaceful retirement, but that the president may be criminally prosecuted by a bitter political opponent, will that not lead us into a cycle that destabilizes the functioning of our country as a democracy?

Does anything in our history suggest this is an actual problem? Of course not -- at least until a criminal of Donald Trump's magnitude landed on the American political scene. Since Samuel Alito seems to favor Donald Trump over American institutions, that thought got planted in his brain and spewed out of his mouth. How nutty was it? Tomasky spells that out in clear terms:

Let’s look to something I’d have thought lawyers and judges took seriously: historical evidence. American democracy has existed for nigh on 250 years, and power has been transferred from a president to his successor a grand total of 40 times (not counting deaths in office). On 11 occasions, a challenger has defeated a sitting incumbent—that is, a situation that creates the potential for some particularly bitter and messy post-election shenanigans.

Now, if Alito’s question really spoke to a malign condition that had hobbled American democracy throughout history and that loomed as a real problem that we had to take seriously, it would stand to reason that our history suggested that these power transfers had a wobbly history—that maybe, say, 12 of 40, and four or five of the 11, had been characterized by violence and unusual threats of retribution against the exiting executive.

But what does the record show? It shows, of course, that there is only one case out of the overall 40, and one case out of the more narrowly defined 11, in all of U.S. history where anything abnormal and non-peaceful happened. That, of course, was 2020.

And there was a lot of bad blood in previous transfers of power. You think John Adams loved the idea of handing power to Thomas Jefferson? John Quincy Adams was popping champagne to turn things over to Andrew Jackson? Grover Cleveland and Benjamin Harrison, who traded wins, weren’t bitter in defeat? These people couldn’t stand each other. But they did what custom required—a custom never questioned by anyone until Trump came along.

So in other words: Alito throws all that democratic history out the window and treats Trump as the new normal, assuming that the American future is ineluctably strewn with a series of lawless Trumps. Alas, with respect to the Republican Party, there’s a chance time will prove him right about that (but only a chance; my cynicism about the depths to which this GOP will sink is almost limitless, but even I think that Trump is most likely sui generis in this respect, and that your average Republican, even the neofascist ones like Tom Cotton, should we be cursed with a Cotton presidency someday, would probably yield power peacefully if he lost).

But think about what it says about both where Trump has delivered this country, and about Alito’s assumptions about democracy. On the former point: Have we now reached a place where challenges to election results are going to be the norm? Where an opposition party can be counted on to find some legal technicality on which to prosecute a former president, rather than leaving him or her in peace as we have throughout our history?

This is another twisting of reality. Trump, his defenders would protest, is the one former president who has not been left in peace. Well, that is true, I confess. But maybe there’s a reason for it! Actually, there are two. Trump has not been left in peace because a) it was always obvious he was not retired, and b) he’s the only ex-president who tried to foment a coup against the United States of America and who declassified sensitive national-security documents with his beautiful brain.

This is where it becomes clear Alito pulled a scam on the American public in order to secure a seat in the rarefied air of SCOTUS. Tomasky writes:

And on the latter point: When George W. Bush named him to the court in 2005, experts told us—of course—that Alito was conservative, yes, but not an extremist (interestingly, Maryanne Trump Barry, Donald’s sister under whom Alito had worked as a prosecutor, was among those recommending Alito’s nomination). As The New Yorker reported in a 2022 profile, Alito was asked in 2014 to name a character trait that hadn’t served him well. His answer? A tendency to hold his tongue. Well, that problem’s been solved, eh? As writer Margaret Talbot noted of the justice, who ignored Chief Justice John Roberts’ importunings to strike a balance in the Dobbs decision, which he wrote: “He’s holding his tongue no longer. Indeed, Alito now seems to be saying whatever he wants in public, often with a snide pugnaciousness that suggests his past decorum was suppressing considerable resentment.”

And this week, he told us, in essence, that in his view democracy depends on allowing presidents to commit federal crimes, because if ex-presidents were to be prosecuted for such things, the United States would become a banana republic. That’s a Supreme Court justice saying that. And while Neil Gorsuch, Brett Kavanaugh, and even Clarence Thomas didn’t go that far Thursday, it was obvious that the court’s conservatives are maneuvering to make sure that the insurrection trial doesn’t see the light of day before the election—in other words, that a sitting president who very clearly wanted Congress to overturn a constitutionally certified election result (about this there is zero dispute) should pay no price for those actions.

When I wrote seven years ago that we rested our hope on conservative judges who will choose our institutions over Trump, trust me, I wasn’t saying I was confident that they would. I was terrified that the day would eventually come. It came yesterday. The conservative jurists chose Trump. It will stand as one of the blackest days in Supreme Court history.

Tomasky, for all of his excellent analysis on immunity, did not dive fully into the swamp that Alito and his right-wing brethren (Thomas, Kavanaugh, Gorsuch, and Roberts) created. (Note: Amy Comey Barrett clearly did not side with Trump's claim of absolute presidential immunity and made a number of thoughtful, well-reasoned comments that could help resolve this case. Because of that, we will not include her with the GOP-appointed scoundrels on the bench. In short, the women on the court -- Comey Barrett and the three liberals -- were clear-headed and in line with legal precedent, while the men were dullards who showed the intellect of Homer Simpson's drinking buddies.) 

It's hard to look at the SCOTUS swamp -- with clear signs that the GOP majority intends to craft some sort of immunity for Trump, even though it has no support in American law, and ask this question: Are Alito & Co. engaged in criminal behavior, and if the answer is yes (I believe it is) what crimes might be going on behind the scenes? I would point to obstruction of justice, conspiracy, bribery, honest-services fraud, and voter/ballot fraud. An investigation might unearth evidence of additional crimes. In my view, such an investigation needs to begin immediately, assuming someone in our government has the spine to take up such a controversial task. If someone doesn't, our democracy might be taking its dying breaths.