I wanted to share a few thoughts about the Sam Alito problem. I don’t want to preach to the choir on this, but there are two points which should be highlighted. The first is that even on its own terms, Alito’s rationale for not recusing himself doesn’t hold up. His argument is essentially this: My wife is her own person with her own views and ways of expressing herself. I asked her to stop but she refused to do so and I couldn’t compel her to do anything. He notes that they co-own the properties in question, so even in the narrow sense of control over a piece of property, he couldn’t dictate anything. It was his wife, not him. He did what he could, but couldn’t do more. End of story.
This is not how federal ethics guidelines work. They make very clear that the appearance of a conflict of interest or impropriety, for these purposes, counts as much as actual ones. They also make clear that the actions of a spouse count toward creating such appearances even though, certainly in the early 21st century, a judge can’t dictate a spouse’s actions. The ethics guidelines specifically deal with the spouse issue. And they say “it’s my spouse, not me” isn’t a defense.
Congratulations, For Not Recusing Yourself From My Cases!
In his singular way, Donald Trump managed to undermine Sam Alito at the very moment the flag-whipped Supreme Court justice was trying to extricate himself from his ethics morass.
In his usual grandiose style, Alito not only refused to recuse, but in a letter to Democratic senators engaged in a paucity of real legal analysis and suggested there was no possible good faith argument for recusal, which is of course silly, reductive, and self-serving.
Nonetheless, Alito baldly asserted there was no basis for recusal, used the Supreme Court’s weak self-enforcing code of conduct as an imperative to do the wrong thing as opposed to rigorous standard to meet, and thumbed his nose at his naysayers with typical relish.
To which the man whose cases Alito is compromised on rose up in his defense, even as a jury in Manhattan deliberated on criminal charges against him:
It was a marvelous distillation of the corrupt conservative-supermajority Supreme Court that Trump helped to create and which he sees as his ultimate salvation against the four – count ’em, FOUR – ongoing criminal prosecutions he faces.
Nevertheless, She Persisted?
Justice Alito’s letter contained one of the most remarkable lines in recent political history: “My wife is fond of flags. I am not.”
That bit of misdirection and minimizing came as he recounted in evolving fashion the upside-down American flag incident at his Virginia home.
His latest version is that he didn’t know about it until he did and then he asked her to take it down (he doesn’t say why but implicit in the request is that it was inappropriate to have the insurrectionist symbol flying in front of his home) and … she REFUSED!
Alito proceeds to offer a pre-law-caliber legal defense of Martha Alito’s joint ownership interest in their Virginia home and her right to exercise her constitutional freedoms independent of him, an irony so excruciating coming from the justice who authored the Dobbs decision that it’s hard not to view it as a deliberate troll of his critics, even though his account in its entirety casts him as small, powerless, and clueless.
A Benign 18th-Century Foam Finger
Dahlia Lithwick, bringing the withering scorn even before Alito’s comical letter surrendering the flagpoles at his homes to his wife:
When the New York Times reported last week that Samuel Alito, an associate justice of the Supreme Court, had been flying an “Appeal to Heaven” flag at his vacation home on the New Jersey shore last summer, the legal world was confronted with yet another classic case of how to deal with the current warring textual methodologies for interpreting the law. One could either “read” this obscure-to-some pine-tree flag in the way the New York Times and its experts did—as a signifier of insurgent Christian nationalism. Or you could read it as a kind of benign 18th-century foam finger: “Gooooo George Washington!”
Jury Digs In On Its Trump Deliberations
A lot of speculation, attempted tea leaf reading, and bloviating about how to interpret the first two notes from the Trump jury yesterday. Journalists abhor a vacuum and so they will fill it, but there was in fact very little to go on from what transpired. Just chill. Juries are notoriously hard to predict.
TPM’s Josh Kovensky is at it again today, with a liveblog going. You can check in periodically to see if anything has happened.
We expect the judge to respond to both jury requests this morning: re-reading his instructions to them and reading some key trial testimony from the court transcript. This will happen in open court and take a while to complete. I doubt we’ll see a verdict this morning, but by afternoon we should be back on verdict watch.
Trump Trial Misinformation On Overdrive
A new round of furious spinning from the right commenced as soon as the jury got the case. You can safely ignore the substance (or lack thereof) of it, but between Fox News and at least one sitting Republican U.S. senator, there was a brain-eating level of dumb misinformation flying around.
This Didn’t Make It Into Evidence At Trial
The Daily Beast: “Donald Trump boasted about having sex with adult film star Stormy Daniels at the 2006 golf tournament where the two met, a celebrity athlete who played the tournament has said.”
The Price Of Resisting Trump
The mother of former police officer Michael Fanone, who was nearly killed defending the Capitol on Jan. 6, was swatted at her Virginia home on Tuesday, just hours after her son made a campaign appearance for Joe Biden outside the courthouse where Donald Trump’s trial is being held, NBC News reports.
Quote Of The Day
What would’ve happened if Black Americans had stormed the Capitol? I don’t think he’d be talking about pardons. This is the same guy who wanted to tear gas you as you peacefully protested George Floyd’s murder. It’s the same guy who still calls the ‘Central Park Five’ guilty, even though they were exonerated. He’s that landlord who denies housing applications because of the color of your skin. He’s that guy who won’t say Black lives matter and invokes neo-Nazi, Third Reich terms.
President Joe Biden, in a campaign speech to Black voters in Philadelphia
Oligarchs Of The World, Unite!
WSJ: “Donald Trump and Elon Musk have discussed a possible advisory role for the Tesla leader should the presumptive Republican nominee reclaim the White House, the latest sign that the once-frosty relationship between the two men has thawed.”
New Eruption In Iceland
REYKJANES, ICELAND – MAY 29: Another volcanic eruption is seen from a helicopter flight Landhelgisgasla Islands for the fifth time since December on the Reykjanes peninsula in southwestern Iceland on May 29, 2024. Shortly after authorities evacuated the nearby town of Grindavik. Icelandic Meteorological Office (IMO) reported that an eruption has started near Sundhnuksgigar, north of Grindavik. Following an earthquake in the area, a state of emergency had been declared leading to the evacuation of the famous geothermal Blue Lagoon spa and the small fishing town of Grindavik, according to Icelandic Public Broadcaster RUV. (Photo by Almannavarnadeild/Anadolu via Getty Images)
The ongoing series of eruptions on Iceland’s Peninsula resumed Wednesday morning with the most intense lava flow yet:
Although there was a more abundant level of magma, the eruption followed the pattern of previous ones, with an initial surge of magma followed by a gradual slowing of the rate of flow. The new lava mostly stayed with in the confines of previous flows in recent months:
Hér má sjá hvert hraunið er búið að renna. Hægst hefur verulega á rennslinu en hraunið er farið yfir Grindavíkurveg norðan Grindavíkur og yfir Nesveg vestan Grindavíkur. Varnargarðarnir stóðu af sér áhlaup gossins. pic.twitter.com/jgZYNu2CKK
The basis for Justice Samuel Alito’s rejection of congressional Democrats’ request that he recuse himself from Supreme Court cases tied to Jan. 6 was literally a meme.
The first-ever criminal trial of a former president is drawing to a close. On Wednesday morning, Judge Juan Merchan read out his jury instructions, explaining how the panel is to apply the law. He then handed the case over to the jury.
The jury submitted notes Wednesday afternoon requesting a read out of certain parts of trial testimony from witnesses David Pecker and Michael Cohen, and also requesting to rehear the judge’s instructions before they were dismissed for the day.
Yesterday Ireland, Spain and Norway formally recognized a Palestinian state. The U.S. and most other European governments continue to support a “two-state” solution but refuse to recognize a Palestinian state because they say such recognition and such a settlement must emerge from negotiations between the two parties. Meanwhile, numerous other countries throughout the world have already made a declaration similar to Ireland, Spain and Norway’s. Israel Prime Minister Benjamin Netanyahu says such recognition amounts to “a reward for terrorism.” Some offer a middle ground. British Foreign Secretary Cameron says the UK won’t recognize a Palestinian state as long as Hamas controls Gaza, etc. etc.
In practice such declarations have no real practical impact. The Palestinians most definitely do not have a state: that is their central grievance. Recognitions don’t change that. But is this actually a bad thing from the perspective of the United States? Or supporters of Israel? Or, really, anyone else?
It is not. It’s not a bad thing. In fact, it’s a good thing. Much more important than that, it is a necessary thing.
Before we get a verdict, it’s important to recognize that this is justice, regardless of whatever the verdict is. It is a billowing outrage that the three other cases against Donald Trump have been stymied to date by judicial corruption (certainly that’s the case in the two federal prosecutions; the Georgia case is more complicated). But those are different cases. This trial is in a different jurisdiction and about totally different facts and crimes. Both sides were allowed to make their case before a judge who did a good job of controlling the process. Now it’s in the hands of a jury.
I am certainly hoping for a conviction, mostly because the evidence is overwhelming and irrefutable. I’ve always thought this was essentially a jury nullification case. Trump’s only hope for an acquittal is for the jury to essentially say: we’ve heard what you say the law is and we’ve heard the evidence but we just don’t think this is a crime. More realistically, I think Trump’s real hope is a hung jury. Regardless, this is our system. Donald Trump deserves to have his fate in the hands of a jury. And now he does.
In the up-is-down world of the Mar-a-Lago classified documents case, prosecutors attempted to stanch Donald Trump’s vitriolic attacks on federal law enforcement – the kind of thing criminal defendants would not typically be allowed to engage in while on pre-trial release – and wound up themselves threatened with sanctions by the judge.
As Morning Memo recounted yesterday, the move by prosecutors to modify the terms of Trump’s pre-trial release came late Friday before the Memorial Day weekend and prompted a heated response from Trump.
U.S. District Judge Aileen Cannon weighed in Monday, denying the prosecution motion, chastising them for playing loose with the local court rules, and threatening to impose sanctions on them in the future. One small bright spot, if you can call it that, is that she didn’t accede to Trump’s request to sanction the prosecution team immediately. Cannon’s denial was without prejudice, meaning prosecutors can refile their motion:
Cannon insisted that prosecutors had not sufficiently conferred with the defense team before filing and ordered that all future filings contain a statement of no more than 200 words by the opposing side of its position.
In a normal case, I’d applaud a judge keeping a tight leash on the prosecution team. But we’re in such uncharted territory here that you can’t attribute this to i-dotting or t-crossing by Cannon. Given any chance to chide the prosecution, she takes it. Given deplorable behavior by Trump that would normally never fly, she finds herself mute again and again.
The judge’s routine has become so predictable that even the analysis by legal observers bakes in a certain Cannon quotient: Anything that DOJ does that even arguably deviates from the rules leaves an opening that Cannon will take. So DOJ ends up graded on a weird Cannon curve while Trump’s dangerous and unprecedented conduct gets set to the side.
One pattern emerging with Cannon is that when prosecutors implore her to assert herself and take more control over the case like so many judges do, she retreats to treating everything as an adversarial contest that she merely referees. But when it’s a matter of importance to Trump, she regularly asserts herself, going so far as to raise issues on her own. It’s another way her handling of the case is imbalanced to Trump’s advantage.
The Hush Money Jury Finally Gets The Case!
With closing arguments in the hush money trial complete, we’re expecting the judge to spend about an hour instructing the jury on its duties before turning the case over to them to deliberate.
Let me caution again that predicting jury verdicts is not just a dangerous game, it’s damn near impossible. I would even go so far as to say that the rule of law has been honored here regardless of the verdict. The case was well tried, Trump had his day in court, his misdeeds weren’t swept under the carpet, and that all remains true regardless of how the jury comes down.
In oder to set your expectations a bit, I would say the most likely outcomes in descending order are: conviction -> hung jury -> acquittal. But a mix of outcomes – conviction on some but not all counts, hung jury on some counts, even acquittal on some counts – is defintely in play. Acquittal on all charges is I think very unlikely.
After a late night and early morning turnaround, TPM’s Josh Kovenky is back at it this morning. Follow his liveblog here.
The Alitos Are Quite A Pair
The NYT’s Jodi Kantor digs deeper into the neighborhood dispute that Supreme Court Justice Samuel Alito claims led his wife to fly the American flag upside down back in January 2021, sometime between the Capitol attack and Joe Biden’s inauguration.
What’s most striking is the sheer pettiness of the Alitos, but the one factual reveal is that the key confrontation that Alito said prompted his wife to raise the distress signal actually came after the flag at the Alitos was already taken down.
Not that it matters that much? Alito’s explanation never made sense. On what planet does your neighbor protesting a coup attempt require you to trot out pro-coup symbols? What else could it possibly mean?
A Sign Of Things To Come …
AJC: “A Republican member of the Fulton County elections board refuses to certify primary election results unless given access to detailed voting data, a move that Democrats worry could jeopardize certification of November’s general election results.”
DNC Comes Up With An Ohio Fix For Biden
The DNC will hold a virtual roll call of delegates to make Joe Biden its presidential nominee and beat the deadline to get Joe Biden on the Ohio ballot, resolving a mundane calendar issue that had bedeviled Democrats and the state’s GOP governor, who favored resolving the matter.
WSJ: Democrats Plan $100 Million Push on Abortion Rights to Win House
Ron Brownstein: The unusual turnout dynamic that could decide the 2024 election
Abortion Watch
NYT: The Untold Story of the Network That Took Down Roe v. Wade
Politico: Trump says he won’t ‘ban’ birth control. Here’s what he may do instead
NPR: Here’s where voters will decide abortion at the ballot box in November
Infallibility Is Hard
Pope Francis apologies for using gay slur in closed-door meeting with Italian bishops. `
Peering Into The Beyond
The European Space Agency last week released five new images from the Euclid space telescope, among them this unprecedented shot:
This breathtaking image features Messier 78 (the central and brightest region), a vibrant nursery of star formation enveloped in a shroud of interstellar dust. Messier 78 lies 1,300 light-years away in the constellation of Orion. Credit: ESA/Euclid/Euclid Consortium/NASA, image processing by J.-C. Cuillandre (CEA Paris-Saclay), G. Anselmi
I wanted to give you a brief update on the server outage we had off and on for much of Tuesday afternoon.
First, we apologize that this happened and especially on such a news-packed day. As members you pay for us to bring you the news and for the site to be online. We take that responsibility very seriously. Unfortunately, we do not yet know the precise cause of Tuesday’s outage. It appears to have originated on our server host’s side. So that left us for much of the day in the uncomfortable position of largely having to wait on their team to figure out and fix the problem. (If you had a problem accessing the site, believe me — it was extremely frustrating on our end too.) We ended the day making some triage changes to keep the site online until the underlying cause is determined.
My words here may seem lawyerly or overcautious. It’s not that. We just don’t want to say more than we know or speculate and have to correct the record later.
Once we know the precise cause we’ll report back to you.
