Indivisible Upper Yellowstone – Weekly Journal
The Week of Saturday, September 10 through Friday, September 16, 2022 [Vol.4 No.9]
The New Judiciary
Rule of Law
The Week’s Most Notable
The Mar-a-Lago documents case got a lot of media play this week. However, for perspective, keep in mind it is just one of five very active cases against Trump. It might not even be the case of highest legal priority (Jan. 6 sedition, for example). Still, it’s unfolding in an unusually public way, involves national security, espionage, and other dramatic elements. It also exposes the public to the “new judiciary” as it is being shaped along the lines of Poland, Hungary, and Russia. Unfortunately, at this early stage, though heavily documented, this development may still sound like a conspiracy theory – for which only further evidence and corroboration may be convincing.
As a quick reminder, here are the hallmarks of the new judiciary as practiced by Judge Cannon, Justices Thomas, Alito, Barrett, Gorsuch, and Cavanaugh – among other Federalist Society acolytes already in the federal judiciary:
- The end of judicial neutrality
- Disregard of precedent when expedient
- Blatant selectivity in the use of evidence
- Conformity of legal reasoning to achieve political or religious outcomes
This may seem like an outrageous list, but unfortunately it increasingly fits the facts (e.g., Dobbs). Consider the Mar-a-Lago case and Judge Cannon. A Federalist Society member and Leonard Leo (Federalist Society guru) approved; she was appointed to the federal bench by Trump. She opened the proceedings allowing Trump lawyers’ request for a special master, which should not have been in her court (venue shopping, another story), by declaring “As a function of the plaintiff’s former position as president of the United States, the stigma associated with the subject seizure is in a league of its own. . . .” That is, the president is unique and should receive special consideration (unlike every other citizen). Judge Cannon then inserted herself into the ongoing DOJ/FBI investigation by enjoining (halting) it until a special master has ruled. This broke a couple of centuries of various precedents. It also ignored that most of the documents, especially classified ones, are evidence that does not belong to Trump. In fact, in a later ruling she questioned the legitimacy of the documents as classified, implying potential fraud on the part of the DOJ/FBI – a statement Trump’s lawyers might as well have provided.
Without re-tracing every egregiously bad legal rationale, so far, a special master, the impeccable Judge Raymond Dearie, has been appointed and goes into action next Tuesday. Meanwhile, the DOJ filed a bluntly worded emergency appeal to the Eleventh Circuit Court of Appeals, asking that 103 selected classified documents be exempted from Cannon’s orders on national security grounds to enable immediate resumption of its investigation, without being seen by the special master. A reply to that appeal by a three-judge panel should come soon, like next week. Legal observers are quick to observe that the Eleventh Circuit has 6 of 11 judges appointed by Trump, and a conservative reputation – but “old-school” conservative.
Ukraine changes the script, again. It took several days for the world to accept and comprehend that, yet again, Ukraine had won a major battle against the Russians. In a remarkably surprise counteroffensive, the Ukrainians had managed to win back the entire province of Kharkiv, capturing an enormous amount of Russian materiel, and routing Russian soldiers to a degree not believed possible. This week, the pace of battle diminished. Ukrainians needed to consolidate what they accomplished. The victory does not signal the end of the war, but the timing was superb. Around the world, especially in Europe, leaders were looking at the coming winter and wondering if Ukraine had the economic and military stamina for a war of attrition. At least on the military side, that question is gone. In fact, NATO ally countries promised greater resolve – and resources. The U.S. has taken on responsibility for the military side and, less officially, Germany will lead the economic side. Germany has quietly underwritten the Ukraine economy for some time.
Meanwhile in Russia news of the Ukrainian counteroffensive has more than is usual leaked to the public. Some political rumblings are heard, though these are generally of the “Putin permitted” variety. The military, trying to keep a low profile, is busy just digging in, especially in South Ukraine. What really counts in Russia can be summarized in one word: shortages. Military manpower, spare parts, and ammunition, are among many things stretched thin. The Russians did not have a fallback line in Kharkiv, because those troops had been sent to Kherson in the South. Russians do not have enough flight-ready military planes to cover its vast territory and dodge antiaircraft missiles in Ukraine. Debatably, this shortage problem could be fixed by declaring an official war and putting the country on a war footing; but there are two big problems. One: a real military draft will be intensely unpopular, as well as tacitly admitting that all the bragging about the short Ukraine war was a lie. Two: some of the Russian shortage problems are so endemic that even a war footing might not cover the problem. Between sanctions, the war, and doubts about the military situation – Russia’s economic condition, while not as dire as Ukraine’s, continues to deteriorate.
China and India go wobbly on Putin. During the week, both China and India indicated they were not overconfident about Russia’s chances in Ukraine. In a meeting with China’s Xi Jinping, Putin was assured that the Chinese were fully behind Russia – just that they would not be providing any military hardware for the Ukraine war. Then India’s, Modi told Putin it wasn’t a good time for a war. China and India are currently the two largest customers for Russian gas and oil. Diplomatically, this was an oh-no moment – largely created by the Ukrainian victory. Short-term, it will be difficult to see any change in Russian policy; long-term, next year may be a different story.
Saturday, September 10
[Ukraine] Russia Officially Withdraws from the Kharkiv Region – This confirmed the scope of the Ukrainian attack and another stunning victory, which will affect Russia and beyond. Strategically, it means that Ukraine will be able to consolidate its control of Izyum, the key depot and transportation center for Russian efforts in the Donbas.
[Ukraine] Last Zaporizhzhia Nuclear Unit Shut Down – Normally, the six units of Europe’s largest nuclear facility provide about 20% of Ukraine’s electricity. As of this weekend, out of concern for safety while the area is under repeated shelling, it produces 0%. It was also down to one backup generator. Given that the Russians are now targeting civilian infrastructure in reprisal for losses in Kharkiv province, it seems doubtful the facility will be back online for winter.
[Climate Change] Fire and Flood in Southern California – Tropical Storm Kay streaked across Southern California, dumping huge amounts of rain on dry and fire ridden areas, while taking out power lines and causing local flooding.
Sunday, September 11
[9/11] Memorial Services for 9/11 Held Nationwide – President Biden attended the ceremony at the Pentagon; Jill Biden was at the crash site in Pennsylvania; and VP Harris was in New York at the World Trade Center.
[Climate Change] Oregon Cedar Creek Fire Breaks Containment – The largest fire in the state, now at 90,000 acres, is 0% contained and threatening some 2,000 homes near the Portland metropolitan area.
[Poverty] U.S. Child Poverty Rate Down 59% since 1993 – As reported by The New York Times, general improvements in the economy, combined with state and federal programs targeted at child poverty, have had a dramatic effect.
Monday, September 12
[Jan. 6 Investigation] DOJ Dramatically Escalates Jan. 6 Inquiry with 40 Subpoenas – The subpoenas targeted mainly at former aides of Pres. Trump and covered two cell phones of top-ranking Trump advisors. The DOJ was once criticized for the slow pace of its January 6 investigation; that no longer applies. Keep in mind that this is the criminal investigation and has no direct relationship to the House January 6 committee investigation. The DOJ has already arrested around 900 in connection with the assault on the Capitol, with more than 500 pleas and convictions.
[Ukraine] Ukrainian Counteroffensive Reaches Russian Border – At some points in the Kharkiv region the Ukrainian military has reached the Russian border, although that is largely a symbolic high watermark. Nevertheless, the degree of Russian military collapse in this region has been literally shocking, both in the boldness of the Ukrainian strategy, but also in the revelation that at least in this district Russian soldiers were not prepared to fight. The Russian failure to take Kyiv might have been strategically more significant but the propaganda value of this defeat could be more long-lasting.
Tuesday, September 13
[Abortion] Lindsay Graham Proposes Nationwide Abortion Legislation – Republicans averred that abortion banning in 25 states was good enough, to which the Democrats always added, “for now.” And now, along comes Sen. Lindsey Graham with his full-blown proposal to legislate a nationwide abortion ban, modeled on the existing Supreme Court approved conditions for Mississippi (15-week limit). Of course, while the Democrats have the presidency this won’t happen, so why is Graham proposing it? Self-aggrandizement, of course, but it also serves to galvanize the long-term conversation among Republicans. At least that’s the theory; a lot of Republicans are worried that in the short-term it fuels the Democrats’ fire (“We told you so!”), and will be divisive among Republicans.
[Economy] Labor Department Report: Inflation Stubborn at 8.3% Despite Gas Prices Drop – Republicans jumped all over this; it’s like a lifeline in the sea of Democratic good news. Inflation is one of the most chimeric of economic concepts, often simply a matter of perception. Here we have steadily falling gas prices, always the highly visible bedrock of inflation worries, being counterbalanced by a general rise in prices but most noticeably in food. The situation is politically exploitable; unfortunately for the Republicans, Lindsey Graham’s nationwide abortion proposal stepped all over the opportunity and grabbed the national narrative.
[Propaganda] Intelligence Report: Russia Spent $300+ Million to Influence Foreign Politics – This study by U.S. intelligence sources put a figure on what has been widely accepted as Russia’s extensive role in funding antidemocratic and right-wing political operations. If anything, the number seems low, and may reflect only Russian government activity. Russian oligarchs have also individually contributed to similar influence projects.
[Jean-Luc Godard [1930 – 2022 (91)] Director, screenwriter, film critic: A seminal figure in the history of motion pictures, one of the founders of the French New Wave, director of Breathless, Contempt and many more.
Wednesday, September 14
[Ukraine] Zelensky Visits Izium, Key Town Taken in Ukrainian Counteroffensive – President Zelensky rarely leaves Kyiv, so this trip into the battle zone was significant. In fact, it represented a moment of pause and consolidation for the Ukrainians. Izium was not only the crucial transportation and supplies depot for the Russian army, but they abandon so much equipment and materiel there, the Ukrainians had to send in special units and trucks to collect, sort, and send everything back into Ukraine.
[Sweden] New Right-Wing Government Forms in Sweden – It was a very close election, with a conservative-right wing block holding 176 of 349 seats. Immigration was the main issue, which was championed by a surging Sweden Democrats party (formerly Nazi Party). The new ruling coalition will be very fragile.
[Great Britain] “The Queue” – It is the most British thing imaginable: a line of people 5½ miles long, with a wait of 14 to 24 hours to walk by the coffin of former Queen Elizabeth II, resting in state at Westminster Hall in London. Several million people, from all over Great Britain and the world came to pay their respects and say they stood in the world’s longest queue – it’s a thing. In fact, there were so many, at one point the main queue couldn’t fit everybody, so they started a side queue, which became immediately known as the one and only “queue for a queue.”
[Immigration] DeSantis and Abbott Airlift Migrants to Martha’s Vineyard – Perhaps they thought it would be a clever PR event, a bit of a kerfuffle. After all, Texas has been sending migrants by bus to DC and other cities for months, and the tactic goes all the way back to the Jim Crow era, when southern states bussed blacks to the north. But this blew up. For one thing, the people of Martha’s Vineyard staged a welcoming party – highlighting for the media just how the poor people trapped in this cruel political gesture should be treated as people. Soon, the lawyers got involved and this whole incident is heading for the courts. It’s doubtful this is what the governors had in mind, if they had been mindful at all.
Thursday, September 15
[Railroads] Railroad Freight Strike Averted – This could have been a national disaster. All week, the news had been covering the negotiations; failure – and a strike – could have crippled the economy at this tenuous moment, not to mention that it would have been an enormous blow for Biden’s reputation and the Democratic Party. But, Biden is a railroad man and a union man, and both the commerce secretary (Walsh) and the transportation secretary (Buttigieg) were involved in the negotiations from the get-go. A deal was tentatively struck, which not only contained a hefty pay increase, but settled some of the most peculiarity distorted personnel practices of the railroads.
[Mar-a-Lago] Judge Appoints Special Master – With the agreement of both Trump’s lawyers and the DOJ, Judge Eileen Cannon appointed Judge Raymond Dearie as special master to sort through the more than 11,000 documents seized at Mar-a-Lago on and before August 8. Judge Dearie, of the Eastern District of New York (Brooklyn), is extremely well respected. Currently still in dispute, the DOJ maintains that 103 documents of especially high classification should not be made available to the special master. Judge Cannon disagreed, siding entirely with Trump’s lawyers. The DOJ will appeal.
Friday, September 16
[Mar-a-Lago] DOJ Files Emergency Appeal for Portion of Special Master Decision – The strongly worded appeal asks the 11th Court of Appeals to issue a stay of Judge Cannon’s order by allowing the 103 documents considered especially classified, that 1) need to be put back into the investigation immediately on national security grounds, and 2) the special master not be granted access. [Update: the 11th Court of Appeals responded on Saturday, calling for Trump’s lawyers to have their response to the appeal by Tuesday.]
[Mar-a-Lago] Trump Does his Veiled Threat Thing Over Documents – In an interview, Trump rolled out his patented veiled threat by saying that if he were to be indicted over the Mar-a-Lago documents there would be “problems in this country the likes of which perhaps we have never seen before” and that Americans “would not stand for his prosecution.” Might makes right, you see.
[Ukraine] Mass Graves with 440 Bodies Located in Izium – A mass burial site near the recently reclaimed city contains more than 400 bodies some showing signs of torture and abuse. The majority of bodies are said to be civilian.
[Abortion] Indiana and West Virginia Pass Legislation Banning Most Forms of Abortion
Pinned Point: Until the filibuster rules are modified, most of the Biden agenda will not pass the Senate.
Quote of the Week
Yvon Chouinard, his wife, and two adult children have transferred their ownership of Patagonia, valued at about $3 billion, to a specially designed trust and a nonprofit organization. They were created to preserve the company’s independence and ensure that all of its profits — some $100 million a year — are used to combat climate change and protect undeveloped land around the globe.
David Gelles, “Billionaire No More: Patagonia Founder Gives Away the Company,” The New York Times, 9/14/2022.
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