A thought: There is now sufficient evidence that Trump aided or abetted the insurrectionists to support civil suits, brought at the state level by plaintiffs, challenging his ability to hold public office under Section 3 of Amendment XIV of the Constitution. That Section /1 states in relevant part:

"No person shall...hold any office...under the United States, who, having previously taken an oath...to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given /2

It appears that the witness at today’s abruptly scheduled hearing is going to be Cassidy Hutchinson. Wait, who? A primer: Hutchinson was a top aide to Chief of Staff Mark Meadows. That means she was there watching everything. Back in April I wrote about how Hutchinson /1 likely would be a star witness for the Committee tying key GOP Congressmembers to the coup based on her knowledge of who was communicating to Meadows during the time period after the election. /2

statuskuo.substack.com/p/the-jan-6-co…

Not to freak anyone out, but there are still cases to come, including one that could shake the power of the federal government to its core. It’s called West Virginia v. EPA, and the most extreme ruling would declare that Congress lacks the power to delegate authority /1 to federal agencies to implement policy.

Under existing law, Congress may delegate its regulatory power to an administrative agency, but it must provide an “intelligible principle,” or a standard by which the agency must exercise its quasi-legislative powers. Agencies /2

Following the hearings on Thursday, there are now *two* frauds to keep separate in our minds when considering whether Trump broke the law in seeking to overturn the election. Either one could satisfy the element of intent by the former president… /1 and nail him for corruptly obstructing an official proceeding.

The first is the Big Lie, which was the subject of the first and second hearings. Trump’s own aides repeatedly testified that they told Trump that his statements about a stolen election were false /2

A lot of anger and indignation that the Jan 6 Committee isn’t turning over all their files right away to the DoJ. The frustration at the pace is understandable, but a few thoughts as to why it’s not so cut and dried: (Thread) /1 Lawyers are very protective of their work product and want to make sure it’s not waived by disclosure to a third party. If they give it to the DoJ they might be found to have waived work product privileges over it. That’s a bit deal, as John Eastman just found out. /2

It’s now a popular argument from the right to claim that Trump should not be found guilty of inciting the rioters because (I have to pause to raise one eyebrow here...) the rioters were clearly *already* organized and prepared to storm the Capitol building. THREAD on this: /1 The gist of the argument, made by folks like Sean Hannity, is that Trump was not the *cause* for the insurrection, meaning that nothing he said would have changed the fact that the rioters were going to move on Congress. This argument fails once you take it apart. /2

(Cont’d) ...rational for counties to adopt notice and cure. All Plaintiffs have alleged is that Secretary Boockvar allowed counties to choose whether to do so. No county was forced or not forced to.

And even if Plaintiffs could show there was some kind of unequal law.../1 ... at work, the remedy they were asking for—disenfranchisement of all the OTHER county’s votes—is far too broad. A court has to either “level up” or “level down” to fix an equal protection claim. Level Up means to grant the benefit that was wrongly denied. The simple.../2

I received a number of inquiries concerning whether the PA federal court case that was dismissed with prejudice yesterday can or will find its way up to SCOTUS on appeal. This is a long thread, but worth reading in its entirety if you want to fully understand... /1 ...what’s going on and why I and other legal minds feel no anxiety over an appeal.

First, let me emphasize that ANY federal court case at the trial court level can be appealed. That will happen here. First, Trump will go to the Third Circuit (where he will lose) and then.../2

Many of you have read the admittedly concerning NYT article discussing how President Trump has now summoned the leaders of the Michigan GOP controlled House and Senate to the White House, and that they have accepted that invitation. Here’s why we shouldn’t freak out. /1 The fear is, somehow the GOP is going to undo the will of the electorate citing alleged but as yet unproven fraud as the reason to appoint their own set of electors for Michigan. This plan, though bold, faces significant and likely fatal hurdles. Let’s walk through some. /2

THREAD:

Trying to imagine what the outcry from Republicans would be if two Black, Democratic canvassing board members tried to stop white, rural counties’ votes from being certified because they have suspicions about how the votes there got tallied.

The fact is... /1 ...EVERY place where this B.S. is going on is a black voter stronghold. Philadelphia. Detroit. Milwaukee. When Trump and the GOP say they only want “legal” votes counted, what they are dog whistling is they only want white votes counted. Why else would Monica Palmer... /2

The GOP members of the Wayne County board of canvassers have refused to vote to certify the results in that county, throwing the final election processes into a bit of turmoil. So what happens next? /1 In MI, the duty of certification of the Wayne County vote now passes to the State Bd of Canvassers, which is half GOP and half Dem by law. The certification is a mandatory process that is supposed to be ministerial in nature, and not involve discretion by the board members. /2

The TikTok kids are posting pictures of pancakes to overwhelm the #MillionMAGAMarch hashtag. I made scallion pancakes this morning, so here’s my Chinese American contribution! Recipe:

2 cups flour (I prefer bread flour)
1 tsp salt
3/4 cup boiling water
1/4 cup cold water
4 scallions, chopped
6 tbsp vegetable oil (I use peanut but canola is fine)
2 tbsp toasted sesame oil

Instructions:

Last night in a speech to the Federalist Society, Justice Alito bemoaned the loss of “religious liberty” and cited same-sex marriage as an example of how the religious right and freedom to hold religious views are under attack. In this, he deliberately... /1 misreads the intent of the 1st Amendment guarantees of religious freedom. So let’s review:

The text of the 1st Amendment begins, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof...”

It’s critical.../2

Poor Donald, who clearly has lost the election,
With senior staff quarantined off with infection,
His court cases flound’ring, his friends ever rarer,
And Fox News suddenly balanced and fairer?! / 1 He tweets in ALL CAPS of conspiracy schemes,
With Ms. Stacey Abrams haunting his dreams.
“How can they keep counting?!” he cries, full of wrath
(His strong suit not being electoral math.) /2

Okay, so let’s talk electors. I’ve seen a lot of folks post asking whether there will be “faithless electors” who could swing the tally, about the nightmare scenario where GOP-led legislatures in the swing states go against the will of their voters and seek to appoint... /1 ...their own slates of electors who will vote for Trump, and about the possibility that things get so delayed that states wind up missing the deadline and throwing out the popularly selected slate of electors. These are all different questions, and I’ll address each here... /2

Need some good news? Biden’s lead in GA has grown to 12,338 votes after another 1,314 votes came in. He is going to carry the Peach State by a margin no recount can possibly overcome. That gives him 295 E.C. votes even without Arizona (which will give him 306 when he wins it) /1 If you’re still feeling anxious, consider this: There are just too many states that have gone over to the blue column for any amount of lawsuits, state level shenanigans, and bogus claims of fraud to overcome. /2

Deep breath moment: A lot of people have heard of Sigmund Freud, but few have heard of his brilliant daughter Anna, who has much to teach us about common defense mechanisms that the ego deploys to protect itself. As we face the possibility of a madman as a lame duck president... I thought it would be interesting to review some of her very keen insights.

Anna Freud identified many common defense mechanism, but I want to focus on these five:

Deep breath moment:

It looks increasingly like Biden will win the presidency and we will have a split senate. Over 60 million Americans will have voted for Trump, despite all they know about him. This can be hard to stomach, and many folks close to me... /1 have wondered aloud how it is the American people can support open racism, creeping fascism, misogyny, climate denial and even contemptible, obvious narcissism in their leader. Having no ready answers, I went back and brushed up on some... /2

Some folks have asked whether SCOTUS could team up with Trump to change the trajectory of this election. Admittedly it’s been 8 years since I had a case before SCOTUS (and the composition was far different), but I don’t think that even this Court would try to invalidate votes. /1 Courts aren’t great at going backwards to fix things. Their equitable powers are forward looking. It’s like trying to put an egg yolk back into the shell after scrambling it. So what Trump needs to ask for is a halt to the counting. /2