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Elie Mystal: Justice Thomas Is Lone Dissenter On Issues That May Implicate His Wife In Jan. 6
by Joy Reid
The ReidOut
Jan 21, 2022



With the Supreme Court's approval rating at a new low, Justice Clarence Thomas last fall defended the court against the growing criticism that it has become too politicized. Meanwhile, Thomas is married to someone who is extremely politically active on the far right--Virginia ‘Ginni’ Thomas, an American attorney and conservative activist. Legal expert Elie Mystal joins Joy Reid with his analysis.

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Is Ginni Thomas a Threat to the Supreme Court?: Behind closed doors, Justice Clarence Thomas’s wife is working with many groups directly involved in controversial cases before the Court.
by Jane Mayer
The New Yorker
January 21, 2022

In December, Chief Justice John Roberts released his year-end report on the federal judiciary. According to a recent Gallup poll, the Supreme Court has its lowest public-approval rating in history—in part because it is viewed as being overly politicized. President Joe Biden recently established a bipartisan commission to consider reforms to the Court, and members of Congress have introduced legislation that would require Justices to adhere to the same types of ethics standards as other judges. Roberts’s report, however, defiantly warned everyone to back off. “The Judiciary’s power to manage its internal affairs insulates courts from inappropriate political influence,” he wrote. His statement followed a series of defensive speeches from members of the Court’s conservative wing, which now holds a super-majority of 6–3. Last fall, Justice Clarence Thomas, in an address at Notre Dame, accused the media of spreading the false notion that the Justices are merely politicians in robes. Such criticism, he said, “makes it sound as though you are just always going right to your personal preference,” adding, “They think you become like a politician!”

The claim that the Justices’ opinions are politically neutral is becoming increasingly hard to accept, especially from Thomas, whose wife, Virginia (Ginni) Thomas, is a vocal right-wing activist. She has declared that America is in existential danger because of the “deep state” and the “fascist left,” which includes “transsexual fascists.” Thomas, a lawyer who runs a small political-lobbying firm, Liberty Consulting, has become a prominent member of various hard-line groups. Her political activism has caused controversy for years. For the most part, it has been dismissed as the harmless action of an independent spouse. But now the Court appears likely to secure victories for her allies in a number of highly polarizing cases—on abortion, affirmative action, and gun rights.

Many Americans first became aware of Ginni Thomas’s activism on January 6, 2021. That morning, before the Stop the Steal rally in Washington, D.C., turned into an assault on the Capitol resulting in the deaths of at least five people, she cheered on the supporters of President Donald Trump who had gathered to overturn Biden’s election. In a Facebook post that went viral, she linked to a news item about the protest, writing, “love maga people!!!!” Shortly afterward, she posted about Ronald Reagan’s famous “A Time for Choosing” speech. Her next status update said, “god bless each of you standing up or praying.” Two days after the insurrection, she added a disclaimer to her feed, noting that she’d written the posts “before violence in US Capitol.” (The posts are no longer public.)

Later that January, the Washington Post revealed that she had also been agitating about Trump’s loss on a private Listserv, Thomas Clerk World, which includes former law clerks of Justice Thomas’s. The online discussion had been contentious. John Eastman, a former Thomas clerk and a key instigator of the lie that Trump actually won in 2020, was on the same side as Ginni Thomas, and he drew rebukes. According to the Post, Thomas eventually apologized to the group for causing internal rancor. Artemus Ward, a political scientist at Northern Illinois University and a co-author of “Sorcerers’ Apprentices,” a history of Supreme Court clerks, believes that the incident confirmed her outsized role. “Virginia Thomas has direct access to Thomas’s clerks,” Ward said. Clarence Thomas is now the Court’s senior member, having served for thirty years, and Ward estimates that there are “something like a hundred and twenty people on that Listserv.” In Ward’s view, they comprise “an élite right-wing commando movement.” Justice Thomas, he says, doesn’t post on the Listserv, but his wife “is advocating for things directly.” Ward added, “It’s unprecedented. I have never seen a Justice’s wife as involved.”

Clarence and Ginni Thomas declined to be interviewed for this article. In recent years, Justice Thomas, long one of the Court’s most reticent members, has been speaking up more in oral arguments. His wife, meanwhile, has become less publicly visible, but she has remained busy, aligning herself with many activists who have brought issues in front of the Court. She has been one of the directors of C.N.P. Action, a dark-money wing of the conservative pressure group the Council for National Policy. C.N.P. Action, behind closed doors, connects wealthy donors with some of the most radical right-wing figures in America. Ginni Thomas has also been on the advisory board of Turning Point USA, a pro-Trump student group, whose founder, Charlie Kirk, boasted of sending busloads of protesters to Washington on January 6th.

Stephen Gillers, a law professor at N.Y.U. and a prominent judicial ethicist, told me, “I think Ginni Thomas is behaving horribly, and she’s hurt the Supreme Court and the administration of justice. It’s reprehensible. If you could take a secret poll of the other eight Justices, I have no doubt that they are appalled by Virginia Thomas’s behavior. But what can they do?” Gillers thinks that the Supreme Court should be bound by a code of conduct, just as all lower-court judges in the federal system are. That code requires a judge to recuse himself from hearing any case in which personal entanglements could lead a fair-minded member of the public to question his impartiality. Gillers stressed that “it’s an appearance test,” adding, “It doesn’t require an actual conflict. The reason we use an appearance test is because we say the appearance of justice is as important as the fact of justice itself.”

The Constitution offers only one remedy for misconduct on the Supreme Court: impeachment. This was attempted once, in 1804, but it resulted in an acquittal, underscoring the independence of the judicial branch. Since then, only one Justice, Abe Fortas, has been forced to step down; he resigned in 1969, after members of Congress threatened to impeach him over alleged financial conflicts of interest. Another Justice, William O. Douglas, an environmental activist, pushed the limits of propriety by serving on the board of the Sierra Club. In 1962, he resigned from the board, acknowledging that there was a chance the group would engage in litigation that could reach the Court. The historian Douglas Brinkley, who is writing a book about the environmental movement, told me, “I think Bobby and Jack Kennedy told Douglas to cool his jets.”

In recent years, Democrats have been trying to impose stronger ethics standards on the Justices—a response, in part, to what Justice Sonia Sotomayor has described as the “stench” of partisanship on the Court. In 2016, Republicans in Congress, in an unprecedented act, refused to let President Barack Obama fill a vacancy on the Court. Trump subsequently pushed through the appointment of three hard-line conservative Justices. Last summer, Democrats in Congress introduced a bill that would require the Judicial Conference of the United States to create a binding code of conduct for members of the Supreme Court. They also proposed legislation that would require more disclosures about the financial backers behind amicus briefs—arguments submitted by “friends of the court” who are supporting one side in a case.

So far, these proposals haven’t gone anywhere, but Gillers notes that there are extant laws circumscribing the ethical behavior of all federal judges, including the Justices. Arguably, Clarence Thomas has edged unusually close to testing them. All judges, even those on the Court, are required to recuse themselves from any case in which their spouse is “a party to the proceeding” or is “an officer, director, or trustee” of an organization that is a party to a case. Ginni Thomas has not been a named party in any case on the Court’s docket; nor is she litigating in any such case. But she has held leadership positions at conservative pressure groups that have either been involved in cases before the Court or have had members engaged in such cases. In 2019, she announced a political project called Crowdsourcers, and said that one of her four partners would be the founder of Project Veritas, James O’Keefe. Project Veritas tries to embarrass progressives by making secret videos of them, and last year petitioned the Court to enjoin Massachusetts from enforcing a state law that bans the surreptitious taping of public officials. Another partner in Crowdsourcers, Ginni Thomas said in her announcement, was Cleta Mitchell, the chairman of the Public Interest Legal Foundation, a conservative election-law nonprofit. It, too, has had business before the Court, filing amicus briefs in cases centering on the democratic process. Thomas also currently serves on the advisory board of the National Association of Scholars, a group promoting conservative values in academia, which has filed an amicus brief before the Court in a potentially groundbreaking affirmative-action lawsuit against Harvard. And, though nobody knew it at the time, Ginni Thomas was an undisclosed paid consultant at the conservative pressure group the Center for Security Policy, when its founder, Frank Gaffney, submitted an amicus brief to the Court supporting Trump’s Muslim travel ban.

Bruce Green, a professor at Fordham specializing in legal ethics, notes, “In the twenty-first century, there’s a feeling that spouses are not joined at the hip.” He concedes, though, that “the appearance” created by Ginni Thomas’s political pursuits “is awful—they look like a mom-and-pop political-hack group, where she does the political stuff and he does the judging.” It’s hard to imagine, he told me, that the couple doesn’t discuss Court cases: “She’s got the ear of a Justice, and surely they talk about their work.” But, from the technical standpoint of judicial ethics, “she’s slightly removed from all these cases—she’s not actually the legal director.” Green feels that the conflict of interest is “close, but not close enough” to require that Thomas recuse himself.

David Luban, a professor of law and philosophy at Georgetown, who specializes in legal ethics, is more concerned. He told me, “If Ginni Thomas is intimately involved—financially or ideologically tied to the litigant—that strikes me as slicing the baloney a little thin.”

When Clarence Thomas met Ginni Lamp, in 1986, he was an ambitious Black conservative in charge of the U.S. Equal Employment Opportunity Commission—and she was even more conservative and better connected than he was. Her father ran a firm that developed housing in and around Omaha, and her parents were Party activists who had formed the backbone of Barry Goldwater’s campaign in Nebraska. The writer Kurt Andersen, who grew up across the street from the family, recalls, “Her parents were the roots of the modern, crazy Republican Party. My parents were Goldwater Republicans, but even they thought the Lamp family was nuts.” Ginni graduated from Creighton University, in Omaha, and then attended law school there. Her parents helped get her a job with a local Republican candidate for Congress, and when he won she followed him to Washington. But, after reportedly flunking the bar exam, she fell in with a cultish self-help group, Lifespring, whose members were encouraged to strip naked and mock one another’s body fat. She eventually broke away, and began working for the Chamber of Commerce, opposing “comparable worth” pay for women. She and Thomas began dating, and in 1987 they married. As a woman clashing with the women’s movement, she had found much in common with Thomas, who opposed causes supported by many Black Americans. At Thomas’s extraordinarily contentious Supreme Court confirmation hearings, in 1991, Anita Hill credibly accused him of having sexually harassed her when she was working at the E.E.O.C. Ginni Thomas later likened the experience to being stuck inside a scalding furnace. Even before then, a friend told the Washington Post, the couple was so bonded that “the one person [Clarence] really listens to is Virginia.”

Ginni Thomas had wanted to run for Congress, but once her husband was on the Supreme Court she reportedly felt professionally stuck. She moved through various jobs, including one at the Heritage Foundation, the conservative think tank. In 2010, she launched her lobbying firm, Liberty Consulting. Her Web site quotes a client saying that she is able to “give access to any door in Washington.”

Four years ago, Ginni Thomas inaugurated the Impact Awards—an annual ceremony to honor “courageous cultural warriors” battling the “radical ideologues on the left” who use “manipulation, mobs and deceit for their ends.” She presented the awards at luncheons paid for by United in Purpose, a nonprofit that mobilizes conservative evangelical voters. Many of the recipients have served on boards or committees with Ginni Thomas, and quite a few have had business in front of the Supreme Court, either filing amicus briefs or submitting petitions asking that the Justices hear cases. At the 2019 event, Ginni Thomas praised one of that year’s recipients, Abby Johnson, a former Planned Parenthood employee who became an anti-abortion activist, for her “riveting indictment of Planned Parenthood’s propagation of lies.” That year, Thomas also gave a prize to Mark Meadows, then a hard-line Republican in Congress, describing him as the leader “in the House right now that we were waiting for.” Meadows, in accepting the award, said, “Ginni was talking about how we ‘team up,’ and we actually have teamed up. And I’m going to give you something you won’t hear anywhere else—we worked through the first five days of the impeachment hearings.”

Thomas’s decision to bestow prizes on Johnson and Meadows underscores the complicated overlaps between her work and her husband’s. In 2020, Johnson, a year after receiving an Impact Award, filed with the Court an amicus brief supporting restrictions on abortion in Louisiana. Last year, Johnson participated in the January 6th protests, and the insurrection has since become the object of much litigation, some of which will likely end up before the Court. Last month, she went on Fox News and said that “a couple of the liberal Justices”—she singled out Justice Sotomayor by name—had been “idiotic” during oral arguments in Dobbs v. Jackson Women’s Health Organization, the Mississippi abortion case now under consideration by the Supreme Court. (Johnson didn’t respond to requests for comment.)

Soon after Ginni Thomas gave Mark Meadows an Impact Award, he became Trump’s chief of staff. This past December, he refused to comply with a subpoena from the House select committee that is investigating the Capitol attack. Cleta Mitchell, who advised Trump on how to contest Biden’s electoral victory, received an Impact Award in 2018. She has moved to block a committee subpoena of her phone records. The House of Representatives recently voted to send the Justice Department a referral recommending that it charge Meadows with criminal contempt of Congress. The same thing may well happen to Mitchell. It seems increasingly likely that some of Ginni Thomas’s Impact Award recipients will end up as parties before the Supreme Court.

The Justice Department has so far charged more than seven hundred people in connection with the insurrection, and Attorney General Merrick Garland has said that the federal government will prosecute people “at any level” who may have instigated the riots—perhaps even Trump. On January 19th, the Supreme Court rejected the former President’s request that it intervene to stop the congressional committee from accessing his records. Justice Thomas was the lone Justice to dissent. (Meadows had filed an amicus brief in support of Trump.) Ginni Thomas, meanwhile, has denounced the very legitimacy of the congressional committee. On December 15th, she and sixty-two other prominent conservatives signed an open letter to Kevin McCarthy, the House Minority Leader, demanding that the House Republican Conference excommunicate Representatives Liz Cheney and Adam Kinzinger for their “egregious” willingness to serve on the committee. The statement was issued by an advocacy group called the Conservative Action Project, of which Ginni Thomas has described herself as an “active” member. The group’s statement excoriated the congressional investigation as a “partisan political persecution” of “private citizens who have done nothing wrong,” and accused the committee of serving “improperly issued subpoenas.”

A current member of the Conservative Action Project told me that Ginni Thomas is part of the group not because of her qualifications but “because she’s married to Clarence.” The member asked to have his name withheld because, he said, Ginni is “volatile” and becomes “edgy” when challenged. He added, “The best word to describe her is ‘tribal.’ You’re either part of her group or you’re the enemy.”

Ginni Thomas has her own links to the January 6th insurrection. Her Web site, which touts her consulting acumen, features a glowing testimonial from Kimberly Fletcher, the president of a group called Moms for America: “Ginni’s ability to make connections and communicate with folks on the ground as well as on Capitol Hill is most impressive.” Fletcher spoke at two protests in Washington on January 5, 2021, promoting the falsehood that the 2020 election was fraudulent. At the first, which she planned, Fletcher praised the previous speaker, Representative Mary Miller, a freshman Republican from Illinois, saying, “Amen!” Other people who heard Miller’s speech called for her resignation: she’d declared, “Hitler was right on one thing—he said, ‘Whoever has the youth has the future.’ ” At the second protest, not far from the Trump International Hotel, Fletcher declared that, when her children and grandchildren one day asked her, “Where were you when the Republic was on the verge of collapse?,” she would answer, “I was right here, fighting to my last breath to save it!”

Vivian Brown, who returned a call to Moms for America, said that she would not discuss Fletcher’s testimonial for Ginni Thomas or clarify whether Fletcher had been Thomas’s business client. But the record suggests that the two have been political associates for more than a decade. A program from Liberty xpo & Symposium, a 2010 convention that has been described as the “largest conservative training event in history,” indicates that Fletcher and Thomas co-hosted a Remember the Ladies Banquet. A list of other speakers at the symposium includes Stewart Rhodes, the founder of the Oath Keepers, an extremist militia group. Rhodes was arrested earlier this month and charged, along with ten associates, with seditious conspiracy for allegedly plotting to halt the congressional certification of Biden’s electoral win by storming the Capitol. (Rhodes has pleaded not guilty.)

Another organizer of the January 6th uprising who has been subpoenaed by the congressional committee, Ali Alexander, also has long-standing ties to Ginni Thomas. Like Fletcher, Alexander spoke at a rally in Washington the night before the riot, leading a chant of “Victory or death!” A decade ago, Alexander was a participant in Groundswell, a secretive, invitation-only network that, among other things, coördinated with hard-right congressional aides, journalists, and pressure groups to launch attacks against Obama and against less conservative Republicans. As recently as 2019, Ginni Thomas described herself as the chairman of Groundswell, which, according to documents first published by Mother Jones, sees itself as waging “a 30 front war seeking to fundamentally transform the nation.” As Karoli Kuns, of the media watchdog Crooks and Liars, has noted, several Groundswell members—including Steve Bannon and Sebastian Gorka, the fringe foreign-policy analyst—went on to form the far-right flank of the Trump Administration. (Both Bannon and Gorka were eventually pushed out.) According to Ginni Thomas’s biography in the Council for National Policy’s membership book, she remains active in Groundswell. A former participant told me that Thomas chairs weekly meetings.

Norman Eisen, a senior fellow at the Brookings Institution who, between 2009 and 2011, served as the special counsel and special assistant to the President for ethics and government reform, told me that “it is hard to understand how Justice Thomas can be impartial when hearing cases related to the upheaval on January 6th, in light of his wife’s documented affiliation with January 6th instigators and Stop the Steal organizers.” He argues that “Justice Thomas should recuse himself, given his wife’s interests in the outcome of these cases.”

Gillers, of N.Y.U., and other legal scholars say that there is little chance of such a recusal. Justice Thomas has recused himself at least once before, from a 1996 case involving a military academy that his son was attending. But, as Eisen observed, though Ginni Thomas’s activism has attracted criticism for years, Clarence Thomas has never acknowledged it as a conflict of interest.

Recusals on the Supreme Court are extremely rare, in part because substitutes are not permitted, as they are for judges on lower courts. Yet several other Justices have stepped aside from cases to avoid even the appearance of misconduct. Justice Stephen Breyer recuses himself from any case that has been heard by his brother, Charles Breyer, a federal judge in the Northern District of California. “It’s about the appearance of impropriety,” Charles Breyer told me. “Laypeople would think you would favor your brother over the merits of the case. It’s [done] to make people believe that the Supreme Court is not influenced by relationships.” Justice Breyer also recused himself from a case involving the Dana-Farber Cancer Institute, because his wife had previously worked there.

Charles Breyer told me that, although Justices sometimes “might have a right not to recuse, that doesn’t change the question, which is: How does that affect the appearance of impropriety?” When I asked him whether the Justices confront one another about potential conflicts of interest, he said, “My guess is that they don’t discuss it. They leave it entirely up to the independent judgment. They wouldn’t dare suggest recusal—it’s part of the way they get along with one another.”

In 2021, Justice Brett Kavanaugh recused himself, without explanation, from a case apparently related to a family member. According to Gabe Roth, the executive director of Fix the Court, a nonprofit advocating for reforms to the federal judiciary, an amicus brief had been filed by a cosmetics trade association that Kavanaugh’s father used to run.

The spouses of other Justices have taken steps to avoid creating conflicts of interest in the first place. When Ruth Bader Ginsburg joined the U.S. Court of Appeals for the District of Columbia Circuit, her husband, Martin Ginsburg—then one of the country’s most successful tax lawyers—left his law firm and turned to teaching. After John Roberts was nominated to be a Justice, his wife, Jane Sullivan Roberts, retired from practicing law and resigned from a leadership role in Feminists for Life, an anti-abortion group.

In 2004, Justice Antonin Scalia famously defended his decision to continue presiding over a case that involved former Vice-President Dick Cheney after it was revealed that the two men had gone duck hunting together while the case was in the Court’s docket. Scalia argued, in essence, that Washington is a small town where important people tend to socialize. But in 2003 Scalia recused himself in a case addressing whether the mention of God in the Pledge of Allegiance violated the Constitution’s separation of church and state—because, several months before oral arguments began, he’d given a speech belittling the litigant’s arguments.

Ginni Thomas has complained that she and her husband have received more criticism than have two well-known liberal jurists with politically active spouses: Marjorie O. Rendell continued to serve on the appeals court in Pennsylvania while her husband at the time, Ed Rendell, served as the state’s governor; Stephen Reinhardt, an appeals-court judge in California, declined to recuse himself from cases in which the American Civil Liberties Union was involved, even though his wife, Ramona Ripston, led a branch of the group in Southern California.

Ethics standards may be changing, however. Cornelia T. L. Pillard, a judge on the U.S. Court of Appeals for the D.C. Circuit, currently handles a spousal conflict of interest more rigorously. She is married to David Cole, the national legal director for the A.C.L.U., and recuses herself from any case in which the A.C.L.U. has been involved, whether at a national or local level—and regardless of whether her husband worked on the case.

Roth, of Fix the Court, told me that there is an evident need “for a clearer and more exacting recusal standard at the Supreme Court—especially now, as it’s constantly being thrust into partisan battles, and as the public’s faith in its impartiality is waning.”

Traditionally, judges have not been particularly fastidious about potential conflicts of interest connected to amicus briefs. But that standard may be changing, too. As the number of partisan political issues facing the judicial branch has grown, so has the number of these briefs. Many of them are being filed by opaquely funded dark-money groups, whose true financial sponsors are concealed, thus enabling invisible thumbs to press on the scales of justice. Paul Collins, a political scientist at the University of Massachusetts at Amherst, who has studied the use of amicus briefs, told me, “There’s been an almost linear increase in the number of them since the World War Two era. Now it’s the rare case that doesn’t have one.” The reason, he said, is that, “more and more, the courts are seen as a venue for social change.” He explained that political groups, many with secret donors, are “using the courts the way they used to use Congress—basically, amicus briefs are a means of lobbying.”

The problem has become so widespread that in 2018 the rules for appellate-court judges were amended to make it possible for judges to strike any amicus brief that might force them to recuse themselves. There has been no such reckoning at the Supreme Court—not even when close political associates of Ginni Thomas’s have filed amicus briefs. One such associate is Frank Gaffney, a defense hawk best known for having made feverish claims suggesting that Obama is a Muslim and that Saddam Hussein’s regime was involved in the Oklahoma City bombings. Leaked documents show that Gaffney was a colleague of Ginni Thomas’s at Groundswell as far back as 2013. Gaffney was a proponent of Trump’s reactionary immigration policies, including, most vociferously, of the Administration’s Muslim travel ban. As these restrictions were hit by lawsuits, Gaffney’s nonprofit, the Center for Security Policy, signed the first of two big contracts with Liberty Consulting. According to documents that Gaffney’s group filed with the I.R.S., in 2017 and 2018 it paid Ginni Thomas a total of more than two hundred thousand dollars.

It’s not entirely clear where Gaffney’s nonprofit got the funds to hire Liberty Consulting. (Gaffney didn’t respond to interview requests.) But, according to David Armiak—the research director at the Center for Media and Democracy, which tracks nonprofit political spending—one of the biggest donors to Gaffney’s group in 2017 was a pro-Trump political organization, Making America Great, whose chairman, the heiress Rebekah Mercer, was among Trump’s biggest backers. While two hundred thousand dollars was being passed from Trump backers to Gaffney to Ginni Thomas, the Supreme Court agreed to hear legal challenges to Trump’s travel restrictions. In August, 2017, Gaffney and six other advocates submitted an amicus brief to the Court in support of the restrictions, arguing that “the challenge of Islam must be confronted.”

That December, as the case was still playing out, Ginni Thomas bestowed one of her Impact Awards on Gaffney, introducing him “as an encourager to me and a great friend” but giving no hint that his group was paying her firm. The Impact ceremony was held at the Trump International Hotel, and, according to another guest, Jerry Johnson, Justice Thomas was in attendance. Johnson later recalled that the Justice sat in front of him and was a “happy warrior,” pleased to be watching his wife “running the meeting.” Throughout the 2017 and 2018 sessions, as various challenges to the travel restrictions were considered by the Court, Justice Thomas consistently took a hard pro-Trump line. Finally, in June, 2018, Thomas and four other Justices narrowly upheld the final version of the restrictions.

It’s impossible to know whether Thomas was influenced by his wife’s lucrative contract with Gaffney, by Gaffney’s amicus brief, or by her celebration of Gaffney at the awards ceremony. Given the Justice’s voting history, it’s reasonable to surmise that he would have supported the travel restrictions no matter what. Nevertheless, the lawyers on the losing side of the case surely would have wanted to know about Ginni Thomas’s financial contract with Gaffney. Judges, in their annual financial disclosures, are required to report the source of their spouses’ incomes. But Justice Thomas, in his disclosures in 2017 and 2018, failed to mention the payments from Gaffney’s group. Instead, he put down a curiously low book value for his wife’s lobbying firm, claiming in both years that her company was worth only between fifteen and fifty thousand dollars.

Roth, of Fix the Court, told me that, at the very least, Justice Thomas should be asked to amend his financial statements from those years—as he did in 2011, after it became public that he hadn’t disclosed the six hundred and eighty-six thousand dollars that his wife had earned at the Heritage Foundation between 2003 and 2007. Beyond that, Roth said, “the Justices should, as a rule, disqualify themselves from cases in which a family member or the family member’s employer has filed an amicus brief.” In Congress, the Democratic senator Sheldon Whitehouse, of Rhode Island, is pushing for reform. Amicus briefs, he told me, are “a form of lobbying that has two terrible aspects—the interests behind them are hidden, and they are astonishingly effective in terms of the win rate.” He added, “They open up real avenues for secret mischief.”

In January, 2019, Ginni Thomas secured for Gaffney the access that her Web site promises. As Maggie Haberman, of the Times, and Jonathan Swan, of Axios, have reported, not long after Clarence and Ginni Thomas had a private dinner at the White House with Donald and Melania Trump, the President’s staff gave in to a months-long campaign by Ginni to bring her, Gaffney, and several other associates to the White House to press the President on policy and personnel issues. The White House was not informed that Gaffney’s group had been paying Liberty Consulting for the previous two years. (Gaffney’s group did not report signing a contract with Liberty Consulting for 2019.)

The White House meeting was held in the Roosevelt Room, and by all accounts it was uncomfortable. Thomas opened by saying that she didn’t trust everyone in the room, then pressed Trump to purge his Administration of disloyal members of the “deep state,” handing him an enemies list that she and Groundswell had compiled. Some of the participants prayed, warning that gay marriage, which the Supreme Court legalized in 2015, was undermining morals in America.

One participant told me he’d heard that Trump had wanted to humor Ginni Thomas because he was hoping to talk her husband into retiring, thus opening up another Court seat. Trump, given his manifold legal problems, also saw Justice Thomas as a potentially important ally—and genuinely liked him. But the participant told me that the President considered Ginni Thomas “a wacko,” adding, “She never would have been there if not for Clarence. She had access because her last name was Thomas.”

Ginni Thomas rarely speaks to mainstream reporters, but she often gives speeches in private forums. The Web site of the watchdog Documented has posted a video of her speaking with striking candor. In October, 2018, she led a panel discussion during a confidential session of the Council for National Policy. At the time, the Senate was caught up in the fight over the confirmation of Brett Kavanaugh, who had been accused of sexual assault. “I’m feeling the pain—Clarence is feeling the pain—of going through false charges against a good man,” she said. “I thought it couldn’t get worse than Clarence’s, but it did.” America, she said, “is in a vicious battle for its founding principles,” adding, “The deep state is serious, and it’s resisting President Trump.” She declared twice that her adversaries were trying “to kill people,” and drew applause by saying, “May we all have guns and concealed carry to handle what’s coming!”

This warlike mentality is shared by Groundswell, the political group that Thomas has chaired. In a 2020 session of the Council for National Policy, Rachel Bovard, the senior director of policy at the Conservative Partnership Institute, described meeting weekly with Groundswell members to “vet” officials for disloyalty, saying, “Ginni has been very instrumental in working with the White House. . . . She really is the tip of the spear in these efforts.” Bovard lamented Groundswell’s failure to weed out the whistle-blower Lieutenant Colonel Alexander Vindman before he gave testimony at Trump’s first impeachment trial. “We see what happens when we don’t vet these people,” Bovard said. “That’s how we got Lieutenant Colonel Vindman, O.K.?” Vindman, then the director for European affairs on Trump’s National Security Council, testified that the President had tried to pressure Ukraine’s leaders into producing dirt on Joe Biden’s family. In retaliation, a smear campaign was mounted against Vindman. He suddenly found himself fending off false claims that he had created a hostile work environment at the N.S.C., and fighting insinuations that, because he was born in Ukraine and had been invited to serve in its government, he had “dual loyalty.” (Vindman had self-reported Ukraine’s offer, which he had rejected.) The Defense Department conducted an internal investigation of the accusations and exonerated him. But, Vindman told me, the attacks “harmed my career.” He went on, “It’s un-American, frankly, that a sitting Justice of the Supreme Court, who is supposed to be apolitical, would have a wife who is part of a political vendetta to retaliate against officials who were dutifully serving the public interest. It’s chilling, and probably has already had an effect on silencing other whistle-blowers.”

Another target of Groundswell members was Trump’s former national-security adviser H. R. McMaster, who was deemed insufficiently supportive of the President. According to the Times, in 2018 Barbara Ledeen, a Republican Senate aide who had reportedly developed Groundswell’s enemies list with Ginni Thomas, participated in a plot to oust McMaster by secretly taping him bad-mouthing Trump. Ledeen, who is a close friend of Ginni Thomas’s, told the Times that she’d merely acted as a messenger in the scheme. The plan was to send an undercover female operative to snare McMaster at a fancy restaurant. But McMaster quit before the sting was executed. The Times also reported that another undercover operation—which targeted government employees, including F.B.I. agents, suspected of trying to thwart Trump’s agenda—involved operatives from Project Veritas, the undercover-video group led by James O’Keefe. Ginni Thomas has given O’Keefe an Impact Award, too.

It’s unclear whether the Crowdsourcers project that Thomas said she was launching with O’Keefe’s help ever got off the ground. There’s little public trace of Crowdsourcers, other than a tax filing from 2019, showing that it was developed under the oversight of the Capital Research Center, a right-wing nonprofit that does opposition research. Project Veritas’s chief legal officer sent The New Yorker a statement saying that O’Keefe’s “schedule does not permit such extracurricular activities” as Crowdsourcers. But, in a PowerPoint presentation on the effort, in 2019, Thomas said that “James O’Keefe wanted to head up” a part of the group aimed at “protecting our heroes.” The purpose of Crowdsourcers, she said, was nothing less than saving America. “Our house is on fire!” she went on. “And we are stomping ants in the driveway. We’re not really focussed on the arsonists who are right around us!”

Last year, Project Veritas asked the Supreme Court to hear its challenge to the Massachusetts ban on surreptitiously taping public officials. The Court turned down Project Veritas’s petition, as it does with most such requests. Nevertheless, David Dinielli, a visiting clinical lecturer at Yale Law School, told me that Ginni Thomas’s proclaimed political partnership with O’Keefe, and her awarding of a prize to him, appeared to be unethical. “That’s what the code of conduct is supposed to control,” he said.

Ginni Thomas has held so many leadership or advisory positions at conservative pressure groups that it’s hard to keep track of them. And many, if not all, of these groups have been involved in cases that have come before her husband. Her Web site lists the National Association of Scholars—the group that has filed an amicus brief in the lawsuit against Harvard—among her “endorsed charities.” The group’s brief claims that the affirmative-action policies used by the Harvard admissions department are discriminatory. Though the plaintiffs have already lost in two lower courts, they are counting on the Supreme Court’s new conservative super-majority to side with them, even though doing so would reverse decades of precedent. Peter Wood, the president of the N.A.S., is another Impact Award recipient. So, too, is Robert George, a legal scholar at Princeton who, according to the N.A.S.’s Web site, serves with Ginni Thomas on its advisory board. (He says that he has “not been active” on the board.) He received a “Lifetime” Impact Award from Ginni Thomas in 2019, and recently filed an amicus brief before the Supreme Court, in support of Mississippi’s ban on nearly all abortions after fifteen weeks of pregnancy.

In April, 2020, when Ginni Thomas was serving as one of eight members on the C.N.P. Action board, it was chaired by Kelly Shackelford, the president and C.E.O. of First Liberty, a faith-based litigation group that is currently involved in several major cases before the Court. Last week, to the surprise of many observers, the Court agreed to hear a case in which First Liberty is defending a football coach at a public high school in Washington State who was fired for kneeling and praying on the fifty-yard line immediately after games. Richard Katskee, the legal director of Americans United for Separation of Church and State, who is defending the school board, told me that the case was “huge,” and could overturn fifty years of settled law. Shackelford’s group is also the co-initiator of another case before the Court: a challenge to a Maine law prohibiting the state from using public funds to pay parochial-school tuition for students living in areas far from public schools. In addition to these cases, First Liberty has filed lawsuits that challenge covid-19 restrictions on religious grounds—an issue that has come before the Court—and Ginni Thomas and Shackelford have served together on the steering committee of the Save Our Country Coalition, which has called covid-19 health mandates “unconstitutional power grabs.” In a phone interview, Shackelford told me that he couldn’t see why Ginni Thomas’s work with him posed a conflict of interest for Justice Thomas. “It’s no big deal, if you look at the law on this,” he said. It would be different, he argued, if there were a financial interest involved, or if she were arguing First Liberty’s cases before the Court herself—but, he said, “almost everyone in America is connected through six degrees of separation.”

Another of Ginni Thomas’s fellow-directors on the C.N.P. Action board in 2020 was J. Kenneth Blackwell, a former Ohio secretary of state who is tied to one of the most consequential gun cases currently under consideration by the Supreme Court. In 2020, he was on the National Rifle Association’s board of directors, and at the time the gun group’s official affiliate in New York was challenging the state’s restrictions on carrying firearms in public spaces. Earlier this term, the Court heard a related challenge, and a decision is expected later this year. (Blackwell didn’t respond to an interview request.) Meanwhile, the Web site friendsofnra.org currently boasts that a winner of its youth competition had the opportunity to meet with “the wife of current Supreme Court Justice Clarence Thomas.”

For lawyers involved in cases before the Supreme Court, it can be deeply disturbing to know that Ginni Thomas is an additional opponent. In 2019, David Dinielli, the visiting lecturer at Yale Law School, was a deputy legal director of the Southern Poverty Law Center, which had submitted an amicus brief in a gay-rights case before the Court. He told me he was acutely aware that Ginni Thomas and other members of the Council for National Policy loathed the Southern Poverty Law Center, which tracks right-wing hate groups. In 2017, C.N.P. Action directed its members to “commit to issuing one new post on Facebook and Twitter each week about the Southern Poverty Law Center to discredit them.” In Thomas’s leaked 2018 speech to the Council for National Policy, she denounced the S.P.L.C. for calling the Family Research Council—which is militantly opposed to L.G.B.T.Q. rights—a hate group.

For Dinielli, the idea that a Justice’s spouse belonged to a group that had urged its members to repeatedly attack his organization was “counter to everything you’d expect if you want to get a fair shake” before the Court. He explained, “These activities aren’t just political. They’re aimed at raising up or denigrating actors specifically in front of the Supreme Court. She’s one step away from holding up a sign in front of her husband saying ‘This person is a pedophile.’ ”

Dinielli went on, “The Justices sit literally above where the lawyers are. For these people to do the job they were tasked with, they have to maintain that level. But this degrades it, mocks it, and threatens it.” He warned, “Since the Court doesn’t have an army, it relies on how it behaves to command respect. Once the veneer cracks, it’s very hard to get it back.”

Published in the print edition of the January 31, 2022, issue, with the headline “Ginni Thomas’s Crusades.”

[admin]

Donald Trump’s rationale for seizing voting machines was worse than you might have assumed
by Philip Bump
National correspondent
The Washington Post
January 21, 2022 at 2:49 p.m. EST

The main predicate President Donald Trump cited as his rationale for having federal officials seize every voting machine in the nation as part of his doomed effort to prove that the 2020 presidential election was stolen from him was that Sheryl Guy had forgotten to update something on her computer.

Not directly, of course. In a draft executive order obtained by Politico, her mistake is framed as part of a sweeping international conspiracy to hijack the election to Trump’s detriment. Dated Dec. 16, 2020, here’s how it articulates the mistake in Michigan’s Antrim County, where Guy served as county clerk.

“I, Donald J. Trump, President of the United States, find that the forensic report of the Antrim County, Michigan voting machines, released December 13, 2020, and other evidence submitted to me in support of this order, provide probable cause sufficient to require action under the authorities cited above because of evidence of international and foreign interference in the November 3, 2020, election.”

The document goes on to order that voting machines be collected and that an assessment of the devices be completed by the Office of the Director of National Intelligence — at the time, John Ratcliffe, a fervent Trump ally whose credentials for the gig were not robust. (Ratcliffe had already helped amplify another conspiracy theory, that Hillary Clinton had originated the Russia probe.) Ratcliffe’s office was given 60 days to issue its report — a period that would extend well past the Jan. 20 date when Trump would be out of office. Should he still be planning on leaving.

But, again, it’s worth picking out that specific assertion about Antrim County, about what — we later learned — Sheryl Guy had accidentally done.

On the morning of Nov. 4, 2020 — that is, the morning after the election — it was obvious that something was goofy with the results of the presidential contest in Antrim County. Trump had won the county by nearly 2 to 1 in 2016, 4,000 votes in total. Yet, this time, it appeared that Trump had lost to Joe Biden by about 3,000.

Time’s Mark Bowden and Matthew Teague told the story of what happened next in a report published last month. Guy was in the McDonald’s drive-through when someone texted her to point out that the results were hard to believe. She hustled back to the office and worked with her team to recheck the figures, quickly discovering that Trump had, in fact, won.

So what had happened? Well, at the last minute, she had needed to add a candidate to the ballots. That’s where the mistake occurred.

“When she added that last-minute candidate for village trustee to the ballots,” Bowden and Teague write, “she should have updated the counting machines with the new parameters. But she hadn’t. So when the numbers started rolling in, they dropped into the wrong columns. A little over two thousand Trump votes had been shifted to Biden’s column. Her error.”

In their rush to fix their mistake, her office had inadvertently made another one, double counting some votes. The result was that a final tally wasn’t confirmed until Nov. 6, three days after the election. Not that it really mattered. The Associated Press had called Michigan for Biden two days prior, given that he won by more than 300,000 votes. Even if Antrim County had needed to pull all of its votes away from Biden, he still would have won easily. It was a mistake that was caught, explained and fixed in short order, one that didn’t affect the final results.

The Michigan secretary of state released a public statement explaining what had occurred. But it was too late.

A right-wing media ecosystem primed by Trump to look for evidence of “fraud” decided that fraud was precisely what had happened in Antrim County. Despite the fact that the results didn’t effect the state outcome. Despite the fact that the error was explained. Despite the fact that it was a Republican county that Trump had won. Antrim County became a shorthand for “fraud committed via electronic voting machines.”

That’s in part because of the “forensic report” mentioned in Trump’s executive order. It was published by an ad hoc organization called Allied Security Operations Group, tied closely to an activist named Russell J. Ramsland. Even by the beginning of December, Ramsland had not covered himself with glory, at one point that November mistaking data on voting in Minnesota with information from Michigan. But he was undeterred. Last May, The Washington Post documented Ramsland’s sweeping efforts to dig up evidence of fraud, including his group’s ultimately successful legal effort to obtain the voting machines used in Antrim County.

Over 23 pages, the report scraped together every nefarious-sounding allegation it could. It alleged, for example, that, while federal standards meant that only 1 in 250,000 ballots could return errors — articulated incorrectly as 0.0008 percent in the report — the figure in Antrim County was 68.05 percent. (Adding the hundredths place proves how precise the analysis was, obviously.) It also rejected Guy’s explanation of human error with a wave of the hand: Actually, it asserted, the problem was the voting machines.

The state responded to these allegations quickly. A joint statement from the Michigan attorney general and secretary of state asserted that the report “demonstrates lack of credible evidence of widespread fraud or wrongdoing.” The “qualifications of those who authored the report are suspect, with no evidence or credentials provided to back up their ‘expertise,’ ” the statement reads. It points to an affidavit submitted by Michigan Bureau of Elections Director Jonathan Brater, who stated that “the report makes a series of unsupported conclusions, ascribes motives of fraud and obfuscation to processes that are easily explained as routine election procedures or error corrections, and suggests without explanation that elements of election software not used in Michigan are somehow responsible for tabulation or reporting.”

This was public two days prior to Dec. 16, the date on the draft executive order. As were various fact checks of Trump’s efforts to elevate ASOG’s claims. The Detroit Free Press debunked the argument about those error percentages, which were not error percentages, on Dec. 15.

And yet there’s Antrim County, kicking off Trump’s soberly considered decision to leverage the weight of the federal government to cobble together a reason he should get to remain president. The Michigan secretary of state’s Dec. 7 news release had stated flatly that what occurred in Antrim County was “an isolated error” and that “there is no evidence this user error occurred elsewhere in the state.” But here it was at the front of Trump’s line of dominoes running from Sheryl Guy to an international criminal conspiracy.

The review of the vote in Antrim County was completed Dec. 18. It found that Antrim’s final tally was, in fact, incorrect: It undercounted Trump’s margin by 12 votes.

Last June, a legislative committee run by Michigan Republicans released a lengthy report examining the state’s election processes in 2020. It found no evidence that anything suspect had occurred. But it took special pains to address the situation in Antrim County.

“The strongest conclusion comes in regard to Antrim County,” it read. “All compelling theories that sprang forth from the rumors surrounding Antrim County are diminished so significantly as for it to be a complete waste of time to consider them further.”

A remarkable summary of an incident that nearly upended American politics.

[admin]

Former Trump campaign adviser acknowledges being part of 2020 'alternate electors' plot
by Sonnet Swire
CNN
Updated 8:59 PM ET, Sat January 22, 2022

(CNN) Boris Epshteyn, an adviser for former President Donald Trump's 2020 presidential campaign, acknowledged Friday that he was part of the effort to prop up so-called "alternate electors" to support Trump in key states.

"Is that something you ever worked on or would support, for example, in Michigan?" MSNBC's Ari Melber asked him Friday night.

"Yes, I was part of the process to make sure there were alternate electors for when, as we hoped, the challenges to the seated electors would be heard, and would be successful," replied Epshteyn, who is a lawyer, after insisting that the electors were indeed "alternate" and not "fraudulent electors."

Then-Trump lawyer Rudy Giuliani supervised the effort, CNN reported earlier this week, according to three sources with direct knowledge of the scheme. It involved helping pro-Trump electors access state Capitol buildings, drafting language for fake electoral certificates to send to the federal government, and finding replacements for electors who refused to go along with the plot. Epshteyn was among those working with Giuliani at the post-election Willard Hotel "command center" that sought to prevent Congress from certifying Biden's election win on January 6, 2021. They were both among multiple people subpoenaed Tuesday by the House select committee investigating the January 6 attack.

Throughout the interview Friday, Epshteyn repeated false claims about election fraud.

He also said that everything he did was legal and cited the 1960 presidential election in Hawaii as a precedent for "alternate" electors. In the 1960 presidential election, Richard Nixon initially led John F. Kennedy by 141 votes in the state, a much narrower margin than any of the contested states in the 2020 election, but Nixon ended up losing the state after a legal recount. While there were multiple panels of electors, it was because the results in the state changed after the recount showed a different result.

"So, Ari, everything that was done was done legally by the Trump legal team, according to the rules, and under the leadership of Rudy Giuliani," he added.

Trump and some of his top advisers publicly encouraged the "alternate electors" scheme in Pennsylvania, Georgia, Michigan, Arizona, Wisconsin, Nevada and New Mexico.

Last week, Michigan's attorney general asked federal prosecutors to open a criminal investigation into more than a dozen Republicans who submitted false certificates stating they were the state's presidential electors, despite Biden's win in the state.

Dana Nessel, a Democrat, said of the case on MSNBC: "Under state law, I think clearly you have forgery of a public record, which is a 14-year offense, and election law forgery, which is a five-year offense."

When asked Friday by Melber how soon he'll testify before the House committee, Epshteyn replied, "Well, Ari, as they say, we'll see what happens."

[admin]

Trump Pushes Protests, Promises Pardons During Texas Rally: Reveals his Fear Indictments are Near
Glenn Kirschner
Jan 30, 2022



In a campaign pledge that is stranger than fiction, former President Donald Trump tells attendees at his Texas rally that, if he's indicted, he wants his supporters to hold massive protests in New York, Georgia and anywhere else he's criminally charged. Trump also indicated that the defendants who are being prosecuted for their participation in the January 6 insurrection are being treated "unfairly" and pledging to pardon them if necessary.

This unhinged and potentially obstructionist rant is a clear tell that Trump believes he is close to being indicted.

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Trump Calls On Massive Protests If Prosecutors Go After Him And Offers Pardons To Jan. 6ers
by S.V. Date
Sat, January 29, 2022, 9:11 PM·

Former President Donald Trump Saturday night called on his followers to stage massive protests in multiple cities should prosecutors act against him. He also said he would offer pardons to those charged in the Jan. 6, 2021, assault on the Capitol that he incited in a last-gasp attempt to remain in power.

“If these radical, vicious, racist prosecutors do anything wrong or illegal, I hope we are going to have in this country the biggest protests we have ever had in Washington, D.C., in New York, in Atlanta and elsewhere, because our country and our elections are corrupt,” he said to a rally audience in Conroe, Texas, reading from teleprompters set up on either side of his lectern.

A few minutes later, he claimed his followers who stormed the Capitol, assaulting police as they entered, were not being treated “fairly” and that should he run for the White House again and win: “If it requires pardons, we will give them pardons.”

The 80-minute performance, while riddled with Trump’s familiar lies about having had his reelection “stolen” from him in November 2020, was notable for the numerous references to the various investigations into him.

“They’re trying to put me in jail,” he said. “These prosecutors are vicious, horrible people. They’re racists and they’re very sick. They’re mentally sick. They’re going after me without any protection of my rights by the Supreme Court or most other courts.”

New York State Attorney General Letitia James has been conducting a civil probe of his family business, while the district attorney in Manhattan has been running a criminal investigation.

Meanwhile, the district attorney in Fulton County, Georgia, has impaneled a special grand jury just to focus on Trump’s attempt to coerce state officials to “find” enough votes to overturn his loss of that state to Democrat Joe Biden in 2020.

And the House select committee investigating Jan. 6 has been subpoenaing more and more former and current Trump aides to determine his precise role in that day’s events, while the Department of Justice this past week confirmed that it is investigating at least one element of Trump’s scheme to remain in power: the submission of fake Trump “electors” in states that Biden won.

Trump White House and campaign advisers at the time openly pushed for the fraudulent slates so as to give Vice President Mike Pence the ability to cite the competing slates as reason to declare Trump the winner and award him a second term.

Pence, though, refused to go along with the plan, and instead actively sabotaged the false elector scheme by crafting new language to make sure the fake slates were excluded.

A year ago, Trump became the first U.S. president to refuse to turn over power peacefully to his successor. He spent weeks attacking the legitimacy of the November 2020 contest that he lost. Hours after polls closed and it appeared that Biden would be the winner, Trump stated that he had really won in a “landslide” and that his victory was being “stolen” from him. Those falsehoods continued with a string of failed lawsuits challenging the results in a handful of states.

After the Electoral College voted on Dec. 14, making Biden’s win official, Trump instead turned to a last-ditch scheme to pressure his own vice president into handing Trump the election during the pro forma congressional certification of the election results on Jan. 6.

Trump asked his followers to come to Washington that day and told the thousands who showed up that they should march to the Capitol to intimidate Pence into doing what Trump wanted. “When you catch somebody in a fraud, you’re allowed to go by very different rules,” Trump said.

The mob of supporters stormed the building and chanted “Hang Mike Pence” when the vice president did not do Trump’s bidding. The riot left five people dead, including a Capitol Police officer, and four other officers took their own lives in the following weeks and months.

Though the House impeached Trump for inciting the attack, all but seven Senate Republicans, led by Senate Minority Leader Mitch McConnell, chose not to convict him ― thereby letting Trump continue his political career even as he is the subject of several investigations.

[admin]

Will Trump's Written Confession Regarding Pence "Overturning" Election Prod DOJ into Action?
by Glenn Kirschner
Justice Matters
Jan 31, 2022



In yet another display of overt criminality, former President Donald Trump issued a written statement acknowledging that he wanted Vice President Mike Pence to "overturn" the presidential election.

This video discusses:

1. Why Trump likely made this admission
2. Why his claim that Pence had the authority to "overturn" the election's
result is unconvincing and
3. What the Department of Justice should do as a result of Trump's
admission

Here is the link to my MSNBC Daily article I discuss in the video:
https://www.msnbc.com/opinion/will-tr...

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Will Trump run in 2024? How the DOJ could boost his bid: If the Justice Department doesn’t prosecute Trump and he runs for re-election in 2024, we can expect him to talk about his “confirmed innocence” at every rally.
by Glenn Kirschner
MSNBC Opinion Columnist
Jan. 31, 2022, 8:14 AM MST

In the nearly 13 months since the Jan. 6 Capitol riot, hundreds of Americans — the foot soldiers of the insurrection — have been criminally indicted. However, not a single member of the insurrection’s suspected command structure, the planners and plotters, the organizers and funders, the orchestrators and inciters, has been charged. And it’s still unclear whether any ever will be. This inaction from our very own Department of Justice could enable future attacks on our democracy.

Donald Trump is famous for, and adept at, taking a loss and spinning it as a win.

Donald Trump is famous for, and adept at, taking a loss and spinning it as a win. When phone logs heavily suggested he had extorted Ukrainian President Volodymyr Zelenskyy, he told Americans his conversation with Zelenskyy was “perfect.” When he was impeached after that perfect call, he claimed he was the victim of a politically motivated “witch hunt.” When Robert Mueller’s report was released, he crowed about his “complete and total exoneration.”

Trump said his recorded phone call urging Georgia Secretary of State Brad Raffensperger to “find” enough votes to (fraudulently) declare him the winner of the election in Georgia may have been “even more perfect” than his call with Zelenskyy.

On Saturday, Trump continued to hint that he may run again in 2024, saying at a Texas rally that if he wins, he would consider pardons for convicted Jan. 6 rioters. And given Trump’s obvious patterns and proclivities, there is little doubt how a Trump campaign would spin things in the event the Justice Department declines to indict him.

To be clear, the Justice Department is criminally investigating the insurrection, having indicted more than 700 people. Most recently, the Justice Department upped the criminal ante by indicting 11 alleged members of the Oath Keepers organization on seditious conspiracy charges. On Jan. 5, Attorney General Merrick Garland addressed the nation, saying the Justice Department would hold perpetrators accountable “at any level ... whether they were present that day or were otherwise criminally responsible for the assault on democracy.” Notably, he also referred to Watergate in what seemed to be a not-so-subtle reminder that high-level government officials were held accountable for the series of crimes that unfolded in the aftermath of the break-in at the Watergate Hotel.

But while Garland’s lofty words and vague promises provide some atmospheric reassurances, we have yet to see any accountability at that top level.

I hasten to add that criminal investigations are supposed to be conducted in secret, shielded from public view unless and until indictments are issued. But the reality is once federal prosecutors dig into a criminal investigation in earnest, particularly when they begin issuing grand jury subpoenas, it is nearly impossible to keep the investigation from seeping into the public square.

This merits a short discussion of why not all subpoenas are created equal. We have seen much reporting recently about all kinds of subpoenas: congressional subpoenas like those being issued by the House’s Jan. 6 committee; civil subpoenas issued for Donald Trump, Donald Trump Jr. and Ivanka Trump by New York Attorney General Letitia James as part of her civil fraud investigation; the possibility of subpoenas’ being issued by a Georgia special grand jury investigating Trump’s possible violations of Georgia state election laws; etc.

Unfortunately, and alarmingly, we have seen some Trump loyalists disregard, defy and even mock congressional subpoenas. Former Trump lawyer Jenna Ellis, upon being subpoenaed by the House select committee, actually tweeted, “The committee is just mad they can’t date me.” Worse than the juvenile response of Ellis, other Trump associates, like Steve Bannon and Mark Meadows, have simply refused to appear, resulting in Bannon’s and Meadows’ being referred by Congress to the Justice Department for criminal prosecution for contempt of Congress.

It has become painfully obvious that congressional subpoenas are largely toothless. (Although arguably Congress extracted its own teeth by refusing to use its lawful power of inherent contempt, as I wrote about in an earlier piece.)

Civil subpoenas present their own challenges on the accountability front, not to mention opportunities for nefarious litigants to delay the enforcement process. For example, New York’s attorney general and the Trumps are battling in court over the legitimacy and enforceability of those subpoenas. These court cases can drag on for months or more, making timely accountability a significant challenge.

And how about the subpoena power being sought by the district attorney in Fulton County, Georgia? Fani Willis had to ask a co-equal branch of the Georgia government, the judiciary, for permission to impanel a special grand jury just so she would have the ability to subpoena witnesses who refuse to cooperate voluntarily. Brad Raffensperger apparently is one of them.

The mother of all subpoenas is the federal grand jury subpoena. As a former career federal prosecutor, I issued more subpoenas than I can count. Witnesses generally don’t ignore, defy or mock federal grand jury subpoenas, because ignoring them can result in bench warrants and arrest by the U.S. Marshals. If a witness asserts a privilege, we head straight to the chief judge’s courtroom to litigate the privilege in real time and resolve the matter. Compare that timeline (days, or occasionally weeks) to former White House counsel Don McGahn’s congressional subpoena battle, which took over two years.

But the reality of the federal criminal justice system is that, once witnesses are subpoenaed for the grand jury, the investigation is very likely to become public, because of media investigations, lawyers or the witnesses themselves. (Grand jury secrecy rules prohibit prosecutors from publicly disclosing grand jury matters, but the witnesses aren’t subject to any such prohibition.) And, of course, there can also be (inappropriate) leaks from FBI agents, federal prosecutors or Justice Department staff members.

All of which is to say the lack of even whispers of a federal criminal investigation into Trump or other high-ranking government officials or political figures is dangerous.

All of which is to say the lack of even whispers of a federal criminal investigation into Trump or other high-ranking government officials or political figures is dangerous and damaging. As we saw in Texas over the weekend, it enables Trump and his associates to continue to push their big lie with impunity.

And it enables some segments of the population to confirm Trump and Co.’s conclusion that they truly did nothing wrong. After all, we’ve now known about their conduct for more than a year, and no charges have been forthcoming.

Ultimately, if the Justice Department doesn’t prosecute Trump and he runs for re-election in 2024, we can expect him to talk about his “confirmed innocence” at every rally. Trump will say the DOJ has had no problems with his actions since 2016. He will boast that the DOJ's considered decision not to bring a single criminal charge against him is proof positive that he did absolutely nothing wrong. And if the need ever arises, he may have no qualms about trying it all again.

[admin]

Trump Had Role in Weighing Proposals to Seize Voting Machines: New accounts show that the former president was more directly involved than previously known in plans developed by outside advisers to use national security agencies to seek evidence of fraud.
by Alan Feuer, Maggie Haberman, Michael S. Schmidt and Luke Broadwater
New York Times
Jan. 31, 2022

NOTICE: THIS WORK MAY BE PROTECTED BY COPYRIGHT

YOU ARE REQUIRED TO READ THE COPYRIGHT NOTICE AT THIS LINK BEFORE YOU READ THE FOLLOWING WORK, THAT IS AVAILABLE SOLELY FOR PRIVATE STUDY, SCHOLARSHIP OR RESEARCH PURSUANT TO 17 U.S.C. SECTION 107 AND 108. IN THE EVENT THAT THE LIBRARY DETERMINES THAT UNLAWFUL COPYING OF THIS WORK HAS OCCURRED, THE LIBRARY HAS THE RIGHT TO BLOCK THE I.P. ADDRESS AT WHICH THE UNLAWFUL COPYING APPEARED TO HAVE OCCURRED. THANK YOU FOR RESPECTING THE RIGHTS OF COPYRIGHT OWNERS.

Six weeks after Election Day, with his hold on power slipping, President Donald J. Trump directed his lawyer, Rudolph W. Giuliani, to make a remarkable call. Mr. Trump wanted him to ask the Department of Homeland Security if it could legally take control of voting machines in key swing states, three people familiar with the matter said.

Mr. Giuliani did so, calling the department’s acting deputy secretary, who said he lacked the authority to audit or impound the machines.

Mr. Trump pressed Mr. Giuliani to make that inquiry after rejecting a separate effort by his outside advisers to have the Pentagon take control of the machines. And the outreach to the Department of Homeland Security came not long after Mr. Trump, in an Oval Office meeting with Attorney General William P. Barr, raised the possibility of whether the Justice Department could seize the machines, a previously undisclosed suggestion that Mr. Barr immediately shot down.

The new accounts show that Mr. Trump was more directly involved than previously known in exploring proposals to use his national security agencies to seize voting machines as he grasped unsuccessfully for evidence of fraud that would help him reverse his defeat in the 2020 election, according to people familiar with the episodes.

The existence of proposals to use at least three federal departments to assist Mr. Trump’s attempt to stay in power has been publicly known. The proposals involving the Defense Department and the Department of Homeland Security were codified by advisers in the form of draft executive orders.

But the new accounts provide fresh insight into how the former president considered and to some degree pushed the plans, which would have taken the United States into uncharted territory by using federal authority to seize control of the voting systems run by states on baseless grounds of widespread voting fraud.

The people familiar with the matter were briefed on the events by participants or had firsthand knowledge of them.

The accounts about the voting machines emerged after a weekend when Mr. Trump declared at a rally in Texas that he might pardon people charged in connection with the storming of the Capitol last Jan. 6 if he were re-elected. In a statement issued after the rally, Mr. Trump also suggested that his vice president, Mike Pence, could have personally “overturned the election” by refusing to count delegates to the Electoral College who had vowed to cast their votes for Joseph R. Biden Jr.

The new information helps to flesh out how the draft executive orders to seize voting machines came into existence and points in particular to the key role played by a retired Army colonel named Phil Waldron.

According to people familiar with the accounts, Mr. Waldron, shortly after the election, began telling associates that he had found irregularities in vote results that he felt were suggestive of fraud. He then came up with the idea of having a federal agency like the military or the Department of Homeland Security confiscate the machines to preserve evidence.

Mr. Waldron first proposed the notion of the Pentagon’s involvement to Mr. Trump’s former national security adviser, Michael T. Flynn, whom he says he served with in the Defense Intelligence Agency.

The plans were among an array of options that were placed before Mr. Trump in the tumultuous days and weeks that followed the election, developed by an ad hoc group of lawyers like Sidney Powell and other allies including Mr. Flynn and Mr. Waldron. That group often found itself at odds with Mr. Giuliani and his longtime associate Bernard Kerik, as well as with Mr. Trump’s White House counsel, Pat A. Cipollone, and his team.

Around the same time that Mr. Trump brought up the possibility of having the Justice Department seize the voting machines, for example, he also tried to persuade state lawmakers in contested states like Michigan and Pennsylvania to use local law enforcement agencies to take control of them, people familiar with the matter said. The state lawmakers refused to go along with the plan.

The meeting with Mr. Barr took place in mid- to late November when Mr. Trump raised the idea of whether the Justice Department could be used to seize machines, according to two people familiar with the matter. Mr. Trump told Mr. Barr that his lawyers had told him that the department had the power to seize machines as evidence of fraud.

Mr. Trump mentioned a specific state that had used machines built by Dominion Voting Systems, where his lawyers believed there had been fraud, although it is unclear which state Mr. Trump was referring to. Mr. Barr, who had been briefed extensively at that point by federal law enforcement officials about how the theories being pushed by Mr. Trump’s legal team about the Dominion machines were unfounded, told Mr. Trump that the Justice Department had no basis for seizing the machines because there was no probable cause to believe a crime had been committed.

It was only after several early options were exhausted that Mr. Waldron pitched the idea of using other parts of the federal government to seize the machines to both Mr. Giuliani and members of the Trump legal team, and to Mr. Flynn and his own associates, including Ms. Powell and Patrick Byrne, a wealthy business executive who funded many of the efforts to challenge the election.

Mr. Waldron, who owns a bar and distillery outside Austin, Texas, was previously best known for having circulated a 38-page PowerPoint presentation to lawmakers and White House aides that was filled with extreme plans to overturn the election.

Mr. Giuliani was vehemently opposed to the idea of the military taking part in the seizure of machines, according to two people familiar with the matter. The conflict between him and his legal team, and Mr. Flynn, Ms. Powell and Mr. Byrne came to a dramatic head on Dec. 18, 2020, during a meeting with Mr. Trump in the Oval Office.

At the meeting, Mr. Flynn and Ms. Powell presented Mr. Trump with a copy of the draft executive order authorizing the military to oversee the seizure of machines. After reading it, Mr. Trump summoned Mr. Giuliani to the Oval Office, according to one person familiar with the matter. When Mr. Giuliani read the draft order, he told Mr. Trump that the military could be used only if there was clear-cut evidence of foreign interference in the election.

Ms. Powell, who had spent the past month filing lawsuits claiming that China and other countries had hacked into voting machines, said she had such evidence, the person said. But Mr. Giuliani was adamant that the military should not be mobilized, the person said, and Mr. Trump ultimately heeded his advice.

Shortly after the Oval Office meeting, Mr. Waldron amended the draft executive order, suggesting that if the Defense Department could not oversee the seizure of machines then the Department of Homeland Security could, the person said.

Around that time, Mr. Trump asked Mr. Giuliani to call Kenneth T. Cuccinelli II, the acting deputy secretary at the Department of Homeland Security, to ask about the viability of the proposal, according to two people familiar with the matter. Mr. Cuccinelli said that homeland security officials could not take part in the plan.

All of this was playing out amid open acrimony among White House aides and outside advisers about how best — and how far — to proceed with efforts to pursue Mr. Trump’s claims of fraud in the election. That same month, during a meeting on another matter, Mr. Trump asked Mr. Cuccinelli what he thought of appointing a special counsel to investigate election fraud. Mr. Cuccinelli, according to two people briefed on the conversation, said it was not a good idea for a variety of reasons.

When Mr. Flynn, Ms. Powell and Mr. Byrne arrived at the White House to discuss their plan to use the military to seize voting machines, they were not let into the Oval Office by a typical gatekeeper, like Mark Meadows, Mr. Trump’s chief of staff. Rather, they were escorted in by Garrett Ziegler, a young aide to another Trump adviser, Peter Navarro, according to Mr. Ziegler’s account.

“I waved in General Flynn and Sidney Powell on the Friday night of the 18th — for which Mark Meadows’s office revoked my guest privileges,” Mr. Ziegler said on a podcast, adding that he had done so because he was “frustrated with the current counsel” Mr. Trump was getting.

Even Mr. Giuliani, who had spent weeks peddling some of the most outrageous claims about election fraud, felt that the idea of bringing in the military was beyond the pale.

After Mr. Flynn and Ms. Powell left the Oval Office, according to a person familiar with the matter, Mr. Giuliani predicted that the plans they were proposing were going to get Mr. Trump impeached.

Alan Feuer covers courts and criminal justice for the Metro desk. He has written about mobsters, jails, police misconduct, wrongful convictions, government corruption and El Chapo, the jailed chief of the Sinaloa drug cartel. He joined The Times in 1999. @alanfeuer

Maggie Haberman is a White House correspondent. She joined The Times in 2015 as a campaign correspondent and was part of a team that won a Pulitzer Prize in 2018 for reporting on President Trump’s advisers and their connections to Russia. @maggieNYT

Michael S. Schmidt is a Washington correspondent covering national security and federal investigations. He was part of two teams that won Pulitzer Prizes in 2018 — one for reporting on workplace sexual harassment and the other for coverage of President Trump and his campaign’s ties to Russia. @NYTMike

Luke Broadwater covers Congress. He was the lead reporter on a series of investigative articles at The Baltimore Sun that won a Pulitzer Prize and a George Polk Award in 2020. @lukebroadwater

*********************

Trump's Incriminating Outburst: "Pence Should be Investigated for NOT Overturning the Election"
by Glenn Kirschner
Justice Matters
Feb 1, 2022



Former President Donald Trump's desperation is showing. As the investigative circle tightens around him, he continues to issue statements that are directly and deeply incriminating. First, he finally admits that he wanted Mike Pence to "overturn" the results of the presidential election and corruptly declare him the winner. Then, upon learning that Pence's Chief of Staff, Marc Short, is cooperating with the House select committee investigating the Capitol attack, Trump issues another statement demanding that Mike Pence be investigated for NOT overturning the election's results.

[admin]

Proposed law would allow Arizona Legislature to overturn presidential election results. Not clear if or how election law proposed by Arizona Rep. Shawnna Bolick would work in practice
by Howard Fischer
Capitol Media Services
Jan 30, 2021 Updated Feb 13, 2021


Rep. Shawnna Bolick, R-Phoenix, did not respond to requests to discuss her measure or answer questions.

PHOENIX — A Republican lawmaker wants to allow the Arizona Legislature to overturn the results of a presidential election, even after the count is formally certified by the governor and secretary of state — and even after Congress counts the state’s electors.

The proposal by Rep. Shawnna Bolick of Phoenix contains a series of provisions designed to make it easier for those unhappy with elections to go to court.

Included would be allowing challengers to demand a jury trial and, more to the point, barring a trial judge or an appellate court from throwing out the case, even for lack of evidence, before the jurors get to rule.

That would affect the rules of court procedures that are set up and overseen by the Arizona Supreme Court, on which her husband, Clint Bolick, serves.

But the most sweeping provision would say that, regardless of any other law, the Legislature retains ultimate authority in deciding who the state’s presidential electors are.

And it would spell out that lawmakers, by a simple majority, could revoke the formal certification of the election results and substitute their own decision at any time right up to the day a new president is inaugurated.

LEGAL, PRACTICAL AND CONSTITUTIONAL ISSUES

It’s not clear exactly how that would work.

Congress counts each state’s electoral votes and announces two weeks before Inauguration Day who was elected, which is Shawnna Bolick’s proposed deadline for state lawmakers to make a final decision whether to change the electoral tally.

Absent Congress reconvening to recount the tally — something that may not be legal under federal law — there is no way to recount or change the vote.

Potentially more problematic, Bolick’s House Bill 2720 says lawmakers could take that action “without regard to whether the legislature is in regular or special session or has held committee or other hearings on the matter.”

That by itself would appear to violate the Arizona Constitution, which spells out when the Legislature is, in fact, in session and when it can act.

More practically, Bolick’s proposal does not explain how there even could be a majority vote if there is no formal, on-the-record vote at a nonexistent legislative session.

REACTION IS SWIFT

Bolick did not respond to multiple requests to discuss her measure or answer questions.

But Democratic Secretary of State Katie Hobbs wasted no time in reacting, calling the proposal “breathtaking.”

“So really, we should just get rid of the presidential election altogether?” Hobbs said in a Twitter message. “In reality, that’s what this bill would do.”

Julie Erfle, a Democratic political consultant, was a bit more succinct, saying that Bolick “gives AZ voters the middle finger.”

NOT THE FIRST EFFORT

Bolick is not the first Republican to advance the argument that lawmakers can trump voter decisions.

Rep. Mark Finchem, R-Oro Valley, has repeatedly argued that the U.S. Constitution gives Arizona lawmakers “plenary authority” to determine who gets the state’s electoral votes.

But the Legislature was not in session and House Speaker Russell Bowers rebuffed his efforts to call a hearing of the House Federal Relations Committee, which Finchem chaired last year, to look at ways the 2020 election could have been tainted. Bowers said state law is clear that the electors are selected based on the certified voter count.

So Finchem and others decided to conduct their own unofficial hearing away from the state Capitol in late November to hear allegations from Donald Trump’s legal team that the election was rigged. That event had all the legal authority and effect of a political rally.

Bolick seeks to get around that with her proposed law specifically authorizing a legislative override.

MORE MONITORING WOULD BE REQUIRED

Aside from legislative veto of election results, Bolick’s HB 2720 seeks to put into statute other ways that election results can be monitored.

For example, it would require counties to create digitized images of all ballots, which would be available to the public to review.

She also wants the public to be able to monitor what happens when a ballot cannot be read by tallying equipment, perhaps because of stray marks or because the individual voted for more than one candidate for an office.

That normally involves election workers from both parties reviewing the ballot, attempting to determine the voter’s intent, and creating a new ballot that could be fed through the machine. Bolick wants the images of these duplicated ballots posted on a county website within 24 hours.

BARRING JUDGES FROM RULING WITHOUT JURIES

She also wants to expand an existing law that now allows for up to three observers representing candidates or political parties at the counting center. HB 2720 would require there also be at least 10 individuals from the general public who are registered voters in the county.

Then there’s the issue of how courts have to handle election challenges.

There were a series of lawsuits following now President Biden’s victory over then-President Donald Trump in Arizona. Those included one by Kelli Ward, who chairs the Arizona Republican Party, who contended there were mistakes made in the process of duplicating ballots.

A trial judge agreed to have a review of a random sample of 1,626 of these duplicated ballots, which did turn up errors.

But the Arizona Supreme Court, reviewing that case, said the error rate was no more than 0.55%.

Chief Justice Robert Brutinel said extrapolating that out over the 27,869 ballots that had been duplicated would have gained Trump no more than 153 votes, which would not have affected the outcome of the Arizona election that Biden won by more than 10,000 votes.

The Arizona Supreme Court unanimously affirmed Biden’s win in the state.

Bolick’s bill would have required the case to go to a jury regardless of merits and precluded the trial judge — and, ultimately the Supreme Court — from concluding ahead of a jury trial that the case had no legal merit or practical chance to succeed.

The same would apply to challenges to future election returns if her bill becomes law.

*********************

Proposed law would allow Arizona Legislature to overturn presidential election results. Not clear if or how election law proposed by Arizona Rep. Shawnna Bolick would work in practice
by Howard Fischer
Capitol Media Services
Jan 30, 2021 Updated Feb 13, 2021



Rep. Shawnna Bolick, R-Phoenix, did not respond to requests to discuss her measure or answer questions.

PHOENIX — A Republican lawmaker wants to allow the Arizona Legislature to overturn the results of a presidential election, even after the count is formally certified by the governor and secretary of state — and even after Congress counts the state’s electors.

The proposal by Rep. Shawnna Bolick of Phoenix contains a series of provisions designed to make it easier for those unhappy with elections to go to court.

Included would be allowing challengers to demand a jury trial and, more to the point, barring a trial judge or an appellate court from throwing out the case, even for lack of evidence, before the jurors get to rule.

That would affect the rules of court procedures that are set up and overseen by the Arizona Supreme Court, on which her husband, Clint Bolick, serves.

But the most sweeping provision would say that, regardless of any other law, the Legislature retains ultimate authority in deciding who the state’s presidential electors are.

And it would spell out that lawmakers, by a simple majority, could revoke the formal certification of the election results and substitute their own decision at any time right up to the day a new president is inaugurated.

LEGAL, PRACTICAL AND CONSTITUTIONAL ISSUES

It’s not clear exactly how that would work.

Congress counts each state’s electoral votes and announces two weeks before Inauguration Day who was elected, which is Shawnna Bolick’s proposed deadline for state lawmakers to make a final decision whether to change the electoral tally.

Absent Congress reconvening to recount the tally — something that may not be legal under federal law — there is no way to recount or change the vote.

Potentially more problematic, Bolick’s House Bill 2720 says lawmakers could take that action “without regard to whether the legislature is in regular or special session or has held committee or other hearings on the matter.”

That by itself would appear to violate the Arizona Constitution, which spells out when the Legislature is, in fact, in session and when it can act.

More practically, Bolick’s proposal does not explain how there even could be a majority vote if there is no formal, on-the-record vote at a nonexistent legislative session.

REACTION IS SWIFT

Bolick did not respond to multiple requests to discuss her measure or answer questions.

But Democratic Secretary of State Katie Hobbs wasted no time in reacting, calling the proposal “breathtaking.”

“So really, we should just get rid of the presidential election altogether?” Hobbs said in a Twitter message. “In reality, that’s what this bill would do.”

Julie Erfle, a Democratic political consultant, was a bit more succinct, saying that Bolick “gives AZ voters the middle finger.”

NOT THE FIRST EFFORT

Bolick is not the first Republican to advance the argument that lawmakers can trump voter decisions.

Rep. Mark Finchem, R-Oro Valley, has repeatedly argued that the U.S. Constitution gives Arizona lawmakers “plenary authority” to determine who gets the state’s electoral votes.

But the Legislature was not in session and House Speaker Russell Bowers rebuffed his efforts to call a hearing of the House Federal Relations Committee, which Finchem chaired last year, to look at ways the 2020 election could have been tainted. Bowers said state law is clear that the electors are selected based on the certified voter count.

So Finchem and others decided to conduct their own unofficial hearing away from the state Capitol in late November to hear allegations from Donald Trump’s legal team that the election was rigged. That event had all the legal authority and effect of a political rally.

Bolick seeks to get around that with her proposed law specifically authorizing a legislative override.

MORE MONITORING WOULD BE REQUIRED

Aside from legislative veto of election results, Bolick’s HB 2720 seeks to put into statute other ways that election results can be monitored.

For example, it would require counties to create digitized images of all ballots, which would be available to the public to review.

She also wants the public to be able to monitor what happens when a ballot cannot be read by tallying equipment, perhaps because of stray marks or because the individual voted for more than one candidate for an office.

That normally involves election workers from both parties reviewing the ballot, attempting to determine the voter’s intent, and creating a new ballot that could be fed through the machine. Bolick wants the images of these duplicated ballots posted on a county website within 24 hours.

BARRING JUDGES FROM RULING WITHOUT JURIES

She also wants to expand an existing law that now allows for up to three observers representing candidates or political parties at the counting center. HB 2720 would require there also be at least 10 individuals from the general public who are registered voters in the county.

Then there’s the issue of how courts have to handle election challenges.

There were a series of lawsuits following now President Biden’s victory over then-President Donald Trump in Arizona. Those included one by Kelli Ward, who chairs the Arizona Republican Party, who contended there were mistakes made in the process of duplicating ballots.

A trial judge agreed to have a review of a random sample of 1,626 of these duplicated ballots, which did turn up errors.

But the Arizona Supreme Court, reviewing that case, said the error rate was no more than 0.55%.

Chief Justice Robert Brutinel said extrapolating that out over the 27,869 ballots that had been duplicated would have gained Trump no more than 153 votes, which would not have affected the outcome of the Arizona election that Biden won by more than 10,000 votes.

The Arizona Supreme Court unanimously affirmed Biden’s win in the state.

Bolick’s bill would have required the case to go to a jury regardless of merits and precluded the trial judge — and, ultimately the Supreme Court — from concluding ahead of a jury trial that the case had no legal merit or practical chance to succeed.

The same would apply to challenges to future election returns if her bill becomes law.

[admin]

'Good-Faith Basis' To Conclude Trump Engaged In Federal Crimes: January 6 Committee
by Ayman Mohyeldin
Mar 2, 2022

-- Congressional Defendants' Brief in Opposition to Plaintiff's Privilege Assertions, John Eastman vs. Bennie G. Thompson, et al., Case No. 8:22-cv-00099-DOC-DFM, March 2, 2022

Barbara McQuade, former U.S. attorney, discusses findings by the January 6th committee, revealed in a court filing in a federal case about obtaining documents from Trumpworld lawyer John Eastman, in which it is revealed that the committee has concluded that Donald Trump obstructed an official proceeding and "engaged in a criminal conspiracy to defraud the U.S."

[Barbara McQuade] Donald Trump absolutely knew that there was no fraud here. In fact, one judge said, "There was not a scintilla of evidence that there IS fraud." There's an instruction that juries get about willful blindness. You can't turn a blind eye to something when it's highly probable that it's true. If someone tells you that the world is round, you can't say the world is flat in the face of repeated evidence that it is round. If scientists tell you, and they show you photos, and you continue to persist that the world is flat, at some point, a jury will believe that you are lying.

[admin]

Kinzinger: Trump was the 'worst president America has ever had'
by CNN
Feb 7, 2022

Speaking out after being censured by the Republican National Committee, Rep. Kinzinger (R-IL) shares with New Day what he will tell his son about former president Donald Trump.

[admin]

Peter Bernegger and the Wisconsin Election Review
by Ali Velshi
MSNBC
February 11, 2022



*******************

United States Court of Appeals, Fifth Circuit.
UNITED STATES OF AMERICA, Plaintiff–Appellee, v. PETER BERNEGGER, Defendant–Appellant.

No. 09–60932
Decided: October 20, 2011
Before WIENER, CLEMENT, and ELROD, Circuit Judges.
Defendant, Peter Bernegger, appeals his conviction for mail and bank fraud.   He also appeals his sentence of seventy months in prison and restitution of approximately $2 million.   We AFFIRM as modified.

I.

Peter Bernegger and Stephen Finch were charged in a six-count indictment with various counts of mail fraud, wire fraud, bank fraud, and conspiracy for inducing investors to invest money in their two start-up companies, We–Gel and Citrus Products International (CPI).   We–Gel purported to make gelatin out of catfish waste, and CPI sought to make limonin out of lemon seeds.

Attempting to obtain capital for their new businesses, Bernegger and Finch held several meetings for potential investors, explaining their knowledge of the processes used to make gelatin and limonin out of waste products.   One witness testified that Bernegger and Finch claimed there was nothing they did not know about these processes and that the gelatin was perfected and ready to be sold.   Two witnesses testified that Finch said he and Bernegger had a contract with Nutri–West that was worth $3.2 million.   Following these meetings, several individuals invested in both We–Gel and CPI.

Bernegger and Finch were never able to manufacture a sellable product, however, often pouring the results of their attempts in a ditch behind the plant.   In fact, they were only able to make viable batches of the product a couple of times.   As a result, We–Gel had no customers, and never made any sales.   Nonetheless, Bernegger sent e-mails and letters to investors telling them how well things were going.   Among other things, he told the investors that “We–Gel is producing product, shipping and invoicing customers,” “we have contracted orders from 2 large customers totaling 3,000 metric tons per year,” and We–Gel had “completely sold out of gelatin at a good price.”   He further told investors that the United States Navy had expressed interest in the process being used at We–Gel.   David Cooper, an investor who also worked as a chemist with Finch and Bernegger, testified that he asked Bernegger why he did not tell the investors the truth in these letters, to which Bernegger replied, “They can't handle the truth.”

Later, Bernegger mailed a letter to We–Gel investors asking for additional funds “to finance [We–Gel's] accounts receivable” and asking each investor to contribute at least $25,000.   In that letter, he noted that in order to “sweeten the pot,” “a letter of intent has been signed with a Texas fish processing company named GAF.” In a letter sent three days later, he said that GAF “is paying” We–Gel $1.2 million, which was purportedly “on top of the 50% of pre-tax profits from the second plant and is expected to be paid in about 4 months from now.”   Bernegger testified that he believed that We–Gel did have a letter of intent with GAF, pointing to an agreement We–Gel had with L & S Consulting, a company that hoped to broker a deal between We–Gel and GAF. That letter stated that “L & S is negotiating a deal with GAF such that GAF and We–Gel will form a 50–50 partnership for fish waste processing.”   The document was signed by Bernegger and Larry Mobley, a partner at L & S. Bernegger claimed that he believed Mobley was signing on behalf of GAF.

The jury heard testimony from GAF's general manager, GAF's executive vice president, and Mobley, each of whom testified that GAF never signed a letter of intent with We–Gel.   The only document signed by GAF was a confidentiality agreement in anticipation of GAF's visit to We–Gel's plant.   Although GAF employees did visit the We–Gel plant, they did not think the process was sufficiently developed to warrant doing business with We–Gel.

As a result of the letters Bernegger mailed, We–Gel obtained additional funding from some of its investors.   One investor gave another $25,000 just days after receiving the second letter.   Other investors did so shortly thereafter.   At the end of February 2005, Donnie Kisner, who had invested $100,000 in CPI, called his relative, Leo Bieneck, to tell him what he had learned about We–Gel during the investor meetings.   As a result of that conversation, Bieneck wrote a check to We–Gel for $25,000.   At the time of trial, none of the investors had received any return on his investment.

In addition to funding from his investors, Bernegger obtained grants of $250,000 each from both Clay County, Mississippi and the Mississippi Land, Water and Timber Board.   Bernegger signed both a grant agreement and a security agreement with the state.   As collateral for the security agreement, the state received the first and only lien on any equipment purchased with the money for five years.   We–Gel was expected to meet certain other requirements, such as employing at least fifty-five employees after two years, turning in timely reports, and not selling the company.   If We–Gel did not meet any of those obligations, the state could foreclose on the equipment.

A few months after signing the security agreement with the state, Bernegger sought a loan from BancorpSouth, hoping to pledge the same equipment as collateral.   He sent the loan officer a letter with a list of equipment, valuing it at $1 million and stating, “We–Gel owns this equipment and it is paid for in full.”   The letter did not mention the state's security interest.   We–Gel's office manager testified that, when Bernegger asked her to put together information about the equipment to give to the bank, she told him that the equipment was owned by the state.   Asked what his response was, she said, “He kind of shrugged me off and told me not to worry about it.   That, no, that was our equipment.”   Later, Bernegger took the loan officer on a tour of We–Gel and reiterated that it owned all of the equipment free of any liens.   As a result, Bancorp agreed to issue a loan to Bernegger secured by the equipment.

As a condition of closing the loan with Bancorp, Bernegger gave the bank a lien on his home in Wisconsin, which was already the subject of three liens.   Before closing the loan with Bancorp, however, he borrowed $100,000 from another bank, pledging his home as collateral.   Nonetheless, he signed an affidavit at the closing with Bancorp purporting to set forth all of the liens on the house, but omitting the new lien of $100,000.   When Bancorp received the title opinion revealing the fourth lien, it refused to fund the remainder of the loan.   Bancorp estimated its total loss from We–Gel at $125,000.

The indictment included six counts.1  The jury acquitted Finch of the two counts against him and acquitted Bernegger of two of the five counts against him, but convicted Bernegger of mail fraud and bank fraud.   Bernegger was sentenced to seventy months in prison and ordered to pay restitution of $2,100,000.

II.

Bernegger makes several arguments on appeal, challenging both his conviction and his sentence.

A.

Bernegger first contends that the district court erred in refusing to sever

the bank fraud count from the mail and wire fraud counts.   Under Federal Rule of Criminal Procedure 12(b), “objections based on defects in the indictment, as well as [r]equests for severance of charges or defendants ․ must be raised prior to trial.”  United States v. Mann, 161 F.3d 840, 861 (5th Cir.1998) (internal quotation marks omitted).   Bernegger never moved to sever Count 6, however.   Instead, he points to a Motion to Sever filed under Federal Rule of Criminal Procedure 8(b), requesting that the district court “sever[ ] the case against him from that of the case of the Co–Defendant, Stephen Finch.”   Bernegger renewed that motion several times during the trial, but at all times he referred only to severing his case from that of his co-defendant.

Bernegger nonetheless asserts that his motion below preserved the issue because Rule 8(b) controls all severance motions in cases in which multiple defendants are tried, regardless of whether the movant is seeking to sever offenses or defendants.   Bernegger, however, never mentioned severing Count 6 in his motion to the trial court.   A defendant waives his offense-severance argument when he argues below only that severance of defendants was required yet maintains on appeal that severance of offenses is necessary.   See Mann, 161 F.3d at 861 n.58 (distinguishing motions to sever offenses from motions to sever defendants for preservation purposes).   Nor is this result changed by United States v. Holloway, 1 F.3d 307 (5th Cir.1993), cited by Bernegger at oral argument.   There, the defendant moved to sever the charge of being a felon in possession of a weapon from his robbery offenses, citing Rule 14 but not Rule 8(a).  Id. at 309–10.   We held that the defendant need not cite the particular rule when his argument is made clear to the district court.  Id. at 310 n.2. Critically, here, Bernegger neither cited the proper rule nor made his argument that the charges should be severed to the district court.   As a result, he did not preserve the issue, regardless of which rule controls.

Alternatively, Bernegger argues that this court should review the failure to sever for plain error.   When an appellant does not show cause for failing to move for severance prior to trial, we need not address the merits of the severance argument at all, but we retain discretion to review for plain error.  Mann, 161 F.3d at 862;  United States v. Tolliver, 61 F.3d 1189, 1198–99 & n.6 (5th Cir.1995), vacated and remanded on other grounds, 516 U.S. 1105 (1996).   Even if we review for plain error, Bernegger is not entitled to relief.  “The indictment ․ may charge a defendant in separate counts with 2 or more offenses if the offenses charged ․ are of the same or similar character, or are based on the same act or transaction, or are connected with or constitute parts of a common scheme or plan.”  Fed.R.Crim.P. 8(a).   The district court did not clearly err in finding that these offenses were of a similar character and constitute part of a common scheme—“the making of fraudulent misrepresentations for the purpose of funding his business venture.”

Nor did Bernegger establish that any alleged error affected his substantial rights.   He briefly argues that he was prejudiced because “the mere existence of the bank fraud invariably led the jury to assume the worst about Mr. Bernegger,” which he says “explains Mr. Bernegger's convictions when Mr. Finch, who admitted lying to Mr. Bernegger and the investors, was acquitted of every count.”   He fails to note, however, that the court instructed the jury:

A separate crime is charged against one or more of the defendants in each count of the indictment.   Each count and the evidence pertaining to it should be considered separately.   The case of each defendant should be considered separately and individually.   The fact that you may find one or more of the accused guilty or not guilty of any of the crimes charged should not control your verdict as to any other crime or any other defendant.   You must give separate considerations to the evidence as to each defendant.

We have held that instructions almost identical to those given here are sufficient to cure any prejudice from the joinder of defendants or offenses.   See Mann, 161 F.3d at 862.   Indeed, the jury followed those instructions:  Bernegger was acquitted on two counts, as was Finch.   As this court has previously said, “the acquittal of all the defendants on one or more counts ‘supports the inference that the jury considered separately the evidence as to each defendant and each count.’ ”  Id. (footnote omitted) (quoting United States v. Faulkner, 17 F.3d 745, 759 (5th Cir.1994)).   In sum, the district court did not commit plain error by not severing Count 6.

B.

Bernegger next argues that the district court violated the Confrontation Clause of the Sixth Amendment when it denied him the opportunity to cross-examine Donnie Kisner, an investor in CPI, about an alleged discrepancy in his testimony.   This claim is reviewed de novo, subject to a harmless error analysis.  United States v. Jimenez, 464 F.3d 555, 558 (5th Cir.2006).   If no Sixth Amendment violation occurred, we review the limitations on cross-examination for an abuse of discretion.  Id. at 558–59.   We will not find an abuse of discretion “absent a showing that the limitations were clearly prejudicial.”  United States v. Diaz, 637 F.3d 592, 597 (5th Cir.2011) (internal quotation marks omitted).

While the Sixth Amendment guarantees the right of a defendant to cross-examine witnesses against him, that right is not unlimited.  Jimenez, 464 F.3d at 558.  “[T]rial judges retain wide latitude insofar as the Confrontation Clause is concerned to impose reasonable limits on such cross-examination [regarding a witness's motivation to testify] based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness' safety, or interrogation that is repetitive or only marginally relevant.”  Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986).  “What is required is that defense counsel be ‘permitted to expose to the jury the facts from which jurors, as the sole triers of fact and credibility, could appropriately draw inferences relating to the reliability of the witness.’ ”  Diaz, 637 F.3d at 597 (quoting United States v. Hitt, 473 F.3d 146, 156 (5th Cir.2006) (citation omitted)).   To determine if a Sixth Amendment violation has occurred, we inquire into “whether the jury had sufficient information to appraise the bias and motives of the witness.”  United States v. Tansley, 986 F.2d 880, 886 (5th Cir.1993).

During cross-examination, Kisner revealed that he was involved in an ongoing project involving processing waste with David Cooper, an investor who had also worked as a chemist with Finch and Bernegger.   Kisner testified that he had signed a confidentiality agreement and could not discuss it further, but Bernegger argued that he should be able to cross-examine Kisner on the details of the project:

I think now that we know that this is a byproduct of food and Mr. Cooper is involved and Mr. Cooper was involved in CPI and We–Gel, I have good reason to believe that these gentlemen may have commandeered—that may be a strong word—or absconded—that's a strong word, too—with a project for which Mr. Bernegger may have had—may use and now may be processing that, the same set of facts that are before this Court and for which my client is being criminally prosecuted.   I don't know that because I haven't heard what Mr. Kisner is going to say.   But if that's the case, that is terribly relevant, Your Honor.   In fact, that is not only relevant, it is material.

The district court excused the jury to take testimony under seal.   During Bernegger's questioning outside the presence of the jury, Kisner testified that he was involved in a new project to process waste with Putnam Ethanol.   He further testified that his wife had signed the confidentiality agreement, contrary to his earlier testimony that he had done so.   He testified, however, that he was bound by it.   The district court determined that the new project and any alleged trade secret violation were not relevant to the fraud issues presented to the jury.   Accordingly, the district court did not allow Bernegger to cross-examine Kisner on that particular issue in front of the jury.

Bernegger first argues that he should have been able to cross-examine Kisner about the fact that his wife actually signed the confidentiality agreement, contrary to Kisner's prior testimony.   However, the record does not reflect that Bernegger's attorney ever sought to elicit that testimony before the jury.   The district court did not prevent him from cross-examining Kisner about the discrepancy in his testimony.   Alternatively, Bernegger argues that the district court's limitation on his cross-examination of Kisner was improper because Bernegger might have shown that Kisner stole a trade secret from him and used it in his new project, meaning that Kisner had an interest in seeing Bernegger convicted.   Bernegger has not shown, however, that such testimony would have been relevant to whether he fraudulently obtained funding for CPI and We–Gel, or would have been more than marginally relevant to Kisner's credibility.   Nor has he presented anything more than mere speculation that Kisner did in fact use one of Bernegger's processes improperly.   Therefore, the district court gave Bernegger sufficient latitude during his cross-examination of Kisner, and there was no Sixth Amendment violation.

Because no Sixth Amendment violation occurred, we next review whether the district court's restrictions on cross-examination were so prejudicial as to result in an abuse of discretion.  Jimenez, 464 F.3d at 558–59.   Prejudice is shown only if “a reasonable jury might have had a significantly different impression of the witness's credibility if defense counsel had been allowed to pursue the questioning.”  United States v. Davis, 393 F.3d 540, 548 (5th Cir.2004).   For the reasons discussed above, Bernegger has not shown that the district court's limitations on cross-examination were prejudicial.   The district court did not abuse its discretion.

C.

Next, Bernegger contends that the district court erred by not granting a mistrial based on the format of the superseding indictment.   Because he never asked the district court for a mistrial based on the indictment, we review for plain error.   See United States v. Potts, 644 F.3d 233, 236 (5th Cir.2011).   Paragraphs 1 through 8 of the indictment, which were listed under the title “The Scheme” in Count 1, generally described the fraudulent scheme allegedly devised by Finch and Bernegger.   Those eight paragraphs were then incorporated by reference in Counts 2 through 5. Following the general description of the scheme, the indictment contained another section, entitled “Execution of the Scheme,” that laid out the specifics of Count 1—namely, that Finch had made misrepresentations to Larry Mobley, causing him to wire approximately $200,000 to We–Gel.   Accordingly, while both Bernegger and Finch were identified in the first part of Count 1 describing the scheme, only Finch was actually charged with executing the scheme.

In Bernegger's view, the form of the indictment was confusing to the jury and justified a sua sponte mistrial.   As the district court explained while discussing Count 1 at the charge conference, the jury charge adequately made clear that Bernegger was not charged in Count 1. Bernegger's counsel agreed:

THE COURT:  I think the instructions, as they are, are adequate.   Mr. Daniels, you can't find him guilty if there's not a blank to fill in.

MR. DANIELS:  Right.

Bernegger's attorney then requested an additional curative instruction to clarify the point further, which the district court granted, instructing the jury:

Now, ladies and gentlemen, I cannot emphasize enough to you that unless there is a blank here provided for that defendant, you cannot find that defendant guilty of that count, and the example that I'm giving you primarily deals with Count 1. Count 1 mentions—goes in great detail, you will have this superseding indictment back there, and Mr. Bernegger is mentioned, his name is mentioned in Count 1. But there is no provision for you to find Mr. Bernegger guilty of Count 1 of that indictment.

Bernegger received everything he requested from the district court to clarify the Count 1 issue.2  The district court did not plainly err by not declaring a mistrial sua sponte.

D.

In addition, Bernegger argues that insufficient evidence supports the jury's verdict on Count 3 of the indictment:  that he caused Leo Bieneck to send $25,000 by mail.   In addressing such an argument, this court views the evidence and the inferences drawn therefrom in the light most favorable to the verdict.  United States v. Mitchell, 484 F.3d 762, 768 (5th Cir.2007).   “Credibility determinations and reasonable inferences are resolved in favor of the jury's verdict.”  United States v. Thompson, 647 F.3d 180, 183 (5th Cir.2011).   The issue is not whether the jury correctly determined guilt, but whether it made a rational decision supported by sufficient evidence in the record.  United States v. Jaramillo, 42 F.3d 920, 923 (5th Cir.1995).

To prove mail fraud, “[t]he Government was required to prove only a scheme to defraud, the use of the mail or wire communications, and a specific intent to defraud.”  United States v. McMillan, 600 F.3d 434, 450 (5th Cir.2010);  see 18 U.S.C. § 1341.   Contrary to Bernegger's contentions, the government is not required to prove that any misrepresentations were made directly to the victim.  McMillan, 600 F.3d at 450.   Bernegger argues first, that no fraudulent scheme existed, second, that there was no proof that Bieneck's check was mailed, and third, that there was no evidence that he had specific intent to defraud Bieneck or that he caused Bieneck to send the check.

First, there is sufficient evidence in the record to support a scheme to defraud.   Bernegger argues generally that he intended to establish a legitimate business, that there was a large demand for gelatin, that Finch lied to him about being a doctor, and that the investors signed subscription agreements recognizing the economic risk of investing.   As detailed above, the jury was presented with sufficient evidence that Bernegger made specific misrepresentations about contracts that We–Gel did not actually have, about a letter of intent signed by GAF,3 about how well production was going, and about the status of collateral he pledged for a business loan,4 all with the goal of obtaining money to fund We–Gel.   The jury was free to credit this evidence and disbelieve Bernegger, and there is sufficient evidence to support the jury's finding of a scheme to defraud.

Second, sufficient evidence supports the jury's finding that Bieneck's check was mailed.  “When ․ it would be unusual for the transmittal in question to be made other than by mail, circumstantial evidence of the mailing is sufficient to support a mail fraud conviction.”  United States v. Sprick, 233 F.3d 845, 854 (5th Cir.2000).   Bieneck lived in Oklahoma;  We–Gel received his check in Mississippi.   The government points to the following testimony from Bernegger as an implicit admission that the check from Bieneck was mailed to We–Gel:

Q. While we are on the subject of checks, Mr. Bieneck mailed you a check in February of '05 as well;  is that correct?

A. No.

Q. That is not correct?

A. No.

Q. You did receive a check from Leo Bieneck, correct?

A. We–Gel did, yes.

Viewing the evidence in the light most favorable to the verdict, there is sufficient evidence that Bernegger used the mail for a fraudulent scheme.

Third, there is sufficient evidence that Bernegger caused Bieneck to send the check and that he had a specific intent to defraud.   The jury heard testimony from Kisner that he relayed the information he had heard from Bernegger to his relative, Bieneck.   It cannot be disputed that Bernegger's intent in sending the letters and holding the investors' meeting was to procure more investors.   Kisner himself invested more money after receiving the letters from Bernegger, and he told Bieneck about We–Gel shortly thereafter.   Bieneck mailed his check less than a month after Bernegger mailed the second letter.   Sufficient evidence supports the jury's verdict that Bernegger's misrepresentations caused Bieneck to invest money in We–Gel.

E.

Bernegger also argues that the district court erred in denying his pro se habeas corpus petition.   After the verdict, but before sentencing, Bernegger filed a habeas petition under 28 U.S.C. § 2255 raising, among other things, a claim for ineffective assistance of counsel.   His trial counsel then moved to withdraw based on those claims.   The district court denied both the habeas petition and the motion to withdraw, holding that the petition was not ripe, and we dismissed the appeal from the denial.   A defendant cannot collaterally attack his conviction until it has been affirmed on direct appeal.  Fassler v. United States, 858 F.2d 1016, 1019 (5th Cir.1988).   As a general rule, therefore, this court declines to review ineffective-assistance claims on direct appeal.  United States v. Bishop, 629 F.3d 462, 469 (5th Cir.2010).   The district court correctly determined that Bernegger's habeas corpus petition was not ripe for review.

F.

Finally, Bernegger challenges his sentence, arguing that the district court improperly calculated the total loss caused by his fraudulent scheme as $2,196,296 and improperly ordered restitution in that amount.   See U.S.S.G. § 1B1.3(a)(2).   A district court's calculation of the amount of loss attributable to a defendant is reviewed for clear error.  United States v. Peterson, 101 F.3d 375, 384 (5th Cir.1996).   Bernegger asserts that the district court clearly erred by including in the total loss amount the loans he obtained from Clay County, Mississippi and the Mississippi Land, Water and Timber Board (the Timber Board), each for approximately $250,000.   The pre-sentence report (PSR), which the district court adopted, included the amounts of these government loans in the total loss and listed Clay County and the Timber Board as victims.

Bernegger argues that, because he did not obtain the two loans criminally, the district court improperly included them in the total loss amount.   It is well established that for “acts to constitute relevant conduct [for purposes of calculating the total loss attributable to the defendant], the conduct must be criminal.”  United States v. Anderson, 174 F.3d 515, 526 (5th Cir.1999) (citing United States v. Powell, 124 F.3d 655, 665 (5th Cir.1997)).  “Before a court may attribute losses to a defendant's fraudulent conduct, there must be some factual basis for the conclusion that those losses were the result of fraud.”   See also United States v. Randall, 157 F.3d 328, 331 (5th Cir.1998) (internal quotation marks and alterations omitted).

No evidence introduced either at trial or at sentencing demonstrated that Bernegger obtained these loans in a fraudulent or otherwise criminal manner.   In fact, the government never even alleged that Bernegger acted criminally in obtaining the loans.   While the PSR lists Clay County and the Timber Board as victims, it fails to allege any facts to support this conclusion.   Although a PSR “may be considered as evidence by the court when making sentencing determinations,” bare assertions made therein are not evidence standing alone.  United States v. Ford, 558 F.3d 371, 376 (5th Cir.2009).   In the absence of evidence supporting its characterization of the loans, the PSR is inadequate to support the inclusion of the loan amounts in the loss calculation.   See Anderson, 174 F.3d at 528–30;  see also Peterson, 101 F.3d at 385.   As such, the district court clearly erred in treating the amounts Bernegger borrowed from Clay County and the Timber Board as losses attributable to “relevant conduct” within the meaning of section 1B1.3(a)(2) of the United States Sentencing Guidelines.

Subtracting the amounts of the two government loans from the loss calculation does not affect Bernegger's offense level, however, and therefore does not affect his sentence.   The district court calculated the loss attributable to Bernegger's fraud as $2,196,296.08.   Only $471,296.08 of the total loss amount was attributable to the government loans.   Under the Sentencing Guidelines, any loss amount between $1,000,000 and $2,500,000 yields the same 16–level increase.   See U.S.S.G. § 2B1.1(b)(1).   Thus, subtracting the loan amounts from the loss calculation, the correct total loss amount is $1,725,000, and Bernegger's offense level remains the same.

Because the district court clearly erred in calculating the total loss amount, however, the restitution amount is incorrect and must be modified.   See United States v. Glinsey, 209 F.3d 386, 395–96 (5th Cir.2000).   We therefore modify the restitution amount to reflect the correct total loss amount of $1,725,000.

III.

Accordingly, the judgment of the district court is AFFIRMED as modified.

FOOTNOTES

FN1. The indictment charged that:  (1) Finch caused Larry Mobley to send a wire transfer of approximately $200,000;  (2) Bernegger caused Craig Trebatowski to send via mail $100,000;  (3) Bernegger caused Leo Bienek to send via mail $25,000;  (4) Bernegger sent via mail a letter to all investors of We–Gel, his company, seeking additional cash investments based on several misrepresentations;  (5) Finch and Bernegger conspired to commit wire and mail fraud, as set forth in the counts above;  and (6) Bernegger committed fraud upon BancorpSouth, whose deposits were insured by the FDIC, by misrepresenting that certain equipment and property pledged as collateral was owned lien-free by We–Gel.. FN1. The indictment charged that:  (1) Finch caused Larry Mobley to send a wire transfer of approximately $200,000;  (2) Bernegger caused Craig Trebatowski to send via mail $100,000;  (3) Bernegger caused Leo Bienek to send via mail $25,000;  (4) Bernegger sent via mail a letter to all investors of We–Gel, his company, seeking additional cash investments based on several misrepresentations;  (5) Finch and Bernegger conspired to commit wire and mail fraud, as set forth in the counts above;  and (6) Bernegger committed fraud upon BancorpSouth, whose deposits were insured by the FDIC, by misrepresenting that certain equipment and property pledged as collateral was owned lien-free by We–Gel.

FN2. Relatedly, Bernegger claims that the district court erred “by not redacting [his name] from Count 1 of the indictment.”   This court reviews this claim for an abuse of discretion.  United States v. Graves, 5 F.3d 1546, 1550 (5th Cir.1993).   The Federal Rules of Criminal Procedure provide that “[t]he Court on motion of the defendant may strike surplusage from indictment or information.”  Fed.R.Crim.P. 7(d).  To strike surplusage, the language in the indictment must be “irrelevant, inflammatory, and prejudicial.”  Graves, 5 F.3d at 1550.   In response to Bernegger's request that the district court remove his name from Count 1, the district court explained that doing so would deprive the jury of the context of the fraud.   Bernegger has not established that the inclusion of his name in the indictment was “irrelevant, inflammatory, and prejudicial” and has not shown that the district court abused its discretion in refusing to strike the language.. FN2. Relatedly, Bernegger claims that the district court erred “by not redacting [his name] from Count 1 of the indictment.”   This court reviews this claim for an abuse of discretion.  United States v. Graves, 5 F.3d 1546, 1550 (5th Cir.1993).   The Federal Rules of Criminal Procedure provide that “[t]he Court on motion of the defendant may strike surplusage from indictment or information.”  Fed.R.Crim.P. 7(d).  To strike surplusage, the language in the indictment must be “irrelevant, inflammatory, and prejudicial.”  Graves, 5 F.3d at 1550.   In response to Bernegger's request that the district court remove his name from Count 1, the district court explained that doing so would deprive the jury of the context of the fraud.   Bernegger has not established that the inclusion of his name in the indictment was “irrelevant, inflammatory, and prejudicial” and has not shown that the district court abused its discretion in refusing to strike the language.

FN3. Bernegger contends that the district court erred by failing to instruct the jury on the definition of “letter of intent.”   The district court denied that request because it was an improper instruction and the definition was more properly suited for attorney argument.   This court reviews “a challenge to jury instructions for an abuse of discretion, affording the district court substantial latitude in describing the law to the jurors.”  United States v. Ortiz–Mendez, 634 F.3d 837, 839 (5th Cir.2011) (internal quotation marks omitted).   Bernegger has not established that the district court abused its discretion by denying the request.. FN3. Bernegger contends that the district court erred by failing to instruct the jury on the definition of “letter of intent.”   The district court denied that request because it was an improper instruction and the definition was more properly suited for attorney argument.   This court reviews “a challenge to jury instructions for an abuse of discretion, affording the district court substantial latitude in describing the law to the jurors.”  United States v. Ortiz–Mendez, 634 F.3d 837, 839 (5th Cir.2011) (internal quotation marks omitted).   Bernegger has not established that the district court abused its discretion by denying the request.

FN4. Bernegger makes similar arguments regarding the sufficiency of the evidence to support his convictions under Counts 4 and 6, that the government failed to establish beyond a reasonable doubt that he sent letters by mail to all investors of We–Gel seeking additional cash investments and that he committed fraud upon BancorpSouth by misrepresenting that certain equipment and property pledged as collateral was owned lien-free by We–Gel.   For the reasons detailed above, there is sufficient evidence to support the jury's verdict on these counts.. FN4. Bernegger makes similar arguments regarding the sufficiency of the evidence to support his convictions under Counts 4 and 6, that the government failed to establish beyond a reasonable doubt that he sent letters by mail to all investors of We–Gel seeking additional cash investments and that he committed fraud upon BancorpSouth by misrepresenting that certain equipment and property pledged as collateral was owned lien-free by We–Gel.   For the reasons detailed above, there is sufficient evidence to support the jury's verdict on these counts.

PER CURIAM:

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A Wisconsin man is scanning ballots and suing a county clerk as he launches his own election review
by Patrick Marley
Milwaukee Journal Sentinel
July 5, 2021

MADISON - Republican lawmakers aren't the only ones examining Wisconsin's presidential election.

A New London man has been making copies of ballots in some communities as he conducts his own review of an election Joe Biden narrowly won.

"Our intention is to have true and honest elections. You hear all kinds of rumors and we want to dispel some of those if they're not true," Peter Bernegger said when asked about his endeavor.

Bernegger declined to say what his plans are but said he would announce them in the coming weeks. Recounts in Dane and Milwaukee counties and more than a half dozen lawsuits upheld Biden's victory.

Bernegger's push to inspect ballots comes as Republican lawmakers ramp up their own review of the election. They have hired former state Supreme Court Justice Michael Gableman and former law enforcement officers at taxpayer expense to conduct their review as they decide whether to pass more election-related legislation.

Assembly Speaker Robin Vos of Rochester has acknowledged Biden won the election. That has won him enmity from former President Donald Trump, who has said Vos, Senate President Chris Kapenga of Delafield and Senate Majority Leader Devin LeMahieu of Oostburg haven't done enough to investigate the election.

More:Wisconsin Republicans, and a disgraced ex-Missouri governor, tour site of controversial Arizona ballot audit

Scanning and suing

Dane County Clerk Scott McDonell said last year's election was run properly but he worries efforts like Bernegger's undermine faith in it.

"One of the difficult things about conspiracy theories is they basically can't be disproved and all they do is cause doubt and distrust."

Bernegger sued Door County Clerk Jill Lau in May for copies of election documents. A judge has yet to rule.

He has made copies of ballots in at least two Dane County communities, Verona and Westport. He indicated he was collecting ballots in other counties but declined to say which ones.

Robert Anderson, the deputy clerk in Westport, said Bernegger told him he had plans to visit Brown County and hoped to eventually review 2 million of the 3.3 million ballots cast in the state.

Asked about that figure Thursday, Bernegger said he had "no knowledge of the total number" of ballots he would end up examining.

Anderson said Bernegger asked to review the more than 3,000 ballots cast in Westport. Bernegger and three others spent about four hours there last month scanning copies on equipment they brought with them, Anderson said.

Anderson had three poll workers on hand to oversee the process. He charged Bernegger $135 to cover their pay, he said.

"They were just looking for stuff. He didn't give me specifics," Anderson said.

In Verona, Bernegger and a few others spent half a day scanning ballots from one ward, according to City Administrator Adam Sayre.

Dane County has posted images of every ballot cast in November on its website. Bernegger didn't say why he wanted to make his own copies instead of using those.

In his lawsuit in Door County, Bernegger wrote that he had asked to inspect and take photos of hard drives, memory sticks, election manuals, vote tabulations and other documents.

He wrote in the lawsuit that he had looked at some material during a "friendly meeting" at the clerk's office but that copies of many other records have not been provided.

Bernegger told the Milwaukee Journal Sentinel he is working with people of all political stripes but declined to disclose his own leanings. An online opinion piece posted under Bernegger's name in March questions the reliability of Wisconsin's elections, echoing themes that Trump routinely emphasizes.

"Here is the rigging I have found: numerous people showed up on election day last November 3rd in Wisconsin and were told 'you already voted' ... when they had not. More to come on this particular issue," the opinion piece states.

Prosecutors have not identified widespread fraud in Wisconsin, such as people voting in the names of others.

"We're looking into what happened and we'll release everything to the public — good or bad, whether it hurts us, harms us or not," Bernegger told the Journal Sentinel. "We're finding a lot of interesting things, I can tell you that. In the end I think it will help clerks run better elections."

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Michael Gableman reveals staffers in GOP-backed election investigation
Former Trump administrator, head of Wisconsin Voter Alliance on payroll for taxpayer-funded effort
by Corrinne Hess
Published: Wednesday, December 1, 2021, 1:25pm

Former Wisconsin Supreme Court Justice Michael Gableman has revealed most of the staff working on an investigation into Wisconsin’s 2020 election. Gabelman has refused to answer questions regarding staff in the past.

During testimony Wednesday in front of state lawmakers, Gableman said his team members are paid between $40 an hour and $10,000 a month with taxpayer money.

Members include a former Trump administration official and the head of the Wisconsin Voter Alliance, which unsuccessfully asked the state Supreme Court to throw out the results of Wisconsin's presidential election and force the Legislature to certify the state's presidential electors instead.

Wednesday was only the second time Gableman has testified since the GOP-backed election inquiry was announced this summer. During the 60-minute testimony, discussions between Democratic lawmakers and Gableman got intense and at times resulted in brief shouting matches. At one point, Gableman threatened to leave if he wasn’t shown respect.

The team includes:

• Gableman, who is paid $11,000 per month.
• Zakory Niemierowicz, a University of Wisconsin-Milwaukee graduate who heads human resources. Niemierowicz is paid $4,000 per month.
• Andrew Kloster, a former Trump administration official who has falsely claimed the election was stolen from the former president. Kloster is paid $5,000 per month.
• Carol Matheis, a California attorney active with the Federalist Society. Matheis is paid $5,000 per month.
• Gary Wait, a former private investigator. Wait is paid $3,250 a month.
• Ron Heuer, president of the Wisconsin Voter Alliance. Heuer is an investigator and paid $3,250 a month.
• Arkansas attorney Clint Lancaster, who represented a woman who sued Hunter Biden, President Joe Biden's son, for paternity last year. Lancaster is paid $10,000 a month.
• Former Milwaukee Police Department detectives Thomas Obregon, Neil Saxton and Edward Chaim. Each is paid $40 per hour.
• There is one person Gableman said he will not identify to "protect his best interest with is full-time employer." That person is paid $40 per hour.

Gableman has been approved for an initial, taxpayer-funded budget of $680,000. He told lawmakers Wednesday he spent about $175,500 from this summer through November. These costs include staff, office space, office supplies and travel.

Gableman has been approved for an initial, taxpayer-funded budget of $680,000. He told lawmakers Wednesday he spent about $175,500 from this summer through November. These costs include staff, office space, office supplies and travel.

Assembly Speaker Robin Vos, R-Rochester, called for the investigation and announced Gableman as its leader this summer.

Rep. Mark Spreitzer, D-Beloit, asked Gableman how his election review could be legitimate if he has hired someone who has already sued to overturn the election.

"How can we take your investigation seriously?" Spreitzer said. "Shouldn’t we bring in someone above partisanship? Above reproach? Isn’t this just an extension of partisan activities?"

Gableman asked that Spreitzer's comments be "stricken from the record."

"My work and my employees will be judged by one thing: the finished work project," Gableman said. "Right now, what is preventing the finished work product is the fearful running and hiding of those government officials who do not want to be held accountable."

Gableman has issued subpoenas to state and local election officials to provide testimony and election records for the probe. After pushback over the large scope of the subpoenas, requests for documents were scaled back and in-person interviews were postponed.

Attorney General Josh Kaul, who represents the Wisconsin Elections Commission in his official capacity, has raised legal concerns with the investigation.

The Republican-backed election investigation comes after Wisconsin has completed a series of routine state election audits and a presidential recount in the state’s two largest counties. None of those reviews have uncovered widespread fraud or wrongdoing. There have also been numerous Republican-backed lawsuits in the state, all of which have failed to result in findings of wrongdoing by election officials or voters.

Biden won Wisconsin by about 21,000 votes — a margin similar to several other razor-thin statewide elections in recent years.

Wisconsin Public Radio, © Copyright 2022, Board of Regents of the University of Wisconsin System and Wisconsin Educational Communications Board.

*****************
Wisconsin man who's scanning ballots, conducting election review was convicted of fraud
by Patrick Marley
Milwaukee Journal Sentinel
July 12, 2021, 2:21 PM
BEHIND PAYWALL!

A small group of Wisconsinites conducting a review of the presidential election - including a felon convicted of fraud -- hopes soon to scan ballots in Brown County.

The group of about a half dozen volunteers has collected images of about 2 million ballots using the state's open records law, said Gary Walt, a former private investigator who is helping lead the effort. Those involved have visited two Dane County communities to scan ballots and examine them with microscopes.

Assisting Walt is Peter Bernegger of New London, who was convicted in 2009 of bank fraud and mail fraud. A federal judge in Mississippi sentenced him to 70 months in prison and ordered him to pay restitution of $2.1 million.

An appeals court upheld his conviction but lowered his restitution to $1.7 million. Bernegger has spent years fighting his conviction, filing numerous appeals.

Bernegger and Walt declined to name others involved in their ballot effort.

Bernegger early this month said he wasn't ready to talk about all his plans for reviewing the election. He did not answer questions asked later about his conviction.

Walt called Bernegger courageous for his willingness to pursue his election efforts knowing he would be questioned about his conviction.

Bernegger's fraud convictions stem from his involvement in getting people to invest in two startup companies, including one that purported to make gelatin from catfish waste. That company never made any sales, but Bernegger told investors business was going well, according to court documents.

When someone asked him why he didn't tell investors the truth, he responded, "They can't handle the truth," an appeals court noted when it upheld his conviction.

Bernegger and Walt's effort to review the presidential election comes as Republicans in the state Assembly conduct their own examination of it. Joe Biden narrowly defeated Donald Trump in Wisconsin, as confirmed by recounts in Dane and Milwaukee counties and a string of court rulings.

Top Wisconsin Republicans have acknowledged they cannot overturn the results of the election. Walt said he did not believe Republican lawmakers were going far enough with their review of the election but agreed there is no way to put Trump back in office before Biden's term is up.

"We're with Biden for the next three years whether we like it or not," he said. "What my intention is here is the voter integrity."

In mid-June, Bernegger sent an email to Republicans seeking to find volunteers to help with the review of ballots. He told them he was seeking to look at ballots in Brown, Door, Milwaukee, Sauk and Sawyer counties, according to a person who saw the email.

"Peter Bernegger is a convicted fraudster who swindled investors out of more than a million dollars," said a statement from Nellie Sires, executive director of the state Democratic Party. "This is yet another effort to create distrust in our election process and our democracy and won't prove anything we don't already know."

https://www.jsonline.com/restricted/?re ... 9936002%2F

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Milwaukee Journal Sentinel

In an open records lawsuit Bernegger filed in December, he claimed 0the executive director of the Milwaukee Election Commission] was part of the so-called sect that he alleged "planned, conspired and implemented a massive election fraud" by using fake names and fake addresses to cast ballots. Bernegger alleged the group allowed an unnamed man from Illinois to ... [print] ballots for Biden in a back conference room ... his filing included a hand-drawn floor plan of an election office with a spot labeled "Hidden Room. Someone was sleeping? Snoring?"

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And now that guy, the catfish waste into gelatin scam, make copies of all the ballots, there's a secret sect in a hidden room printing ballots for Biden guy, that guy, well, he was invited by Republicans to give a presentation to the State's assembly elections committee.

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PETER BERNEGGER, INVITED BY WISCONSIN GOP TO BRIEF ASSEMBLY ON ELECTION.

[Peter Bernegger] "Someone is using -- we don't know who -- someone is using our systems, our databases, to cast illegal ballots. We have found tens of thousands -- we don't know who's doing it, it's probably not the person who is the name, it's probably some bad guys. Something's wrong. Somebody's in there. Somebody's doing something wrong, casting illegal ballots. Somebody's in there. They're adding names. They're adding fake voters. They're casting illegal ballots by the tens of thousands. So I appreciate your time, and thank you for having me here.

[Crowd] [Claps]

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With little evidence, felon tells Assembly committee there were thousands of illegal votes
by Henry Redman
Wisconsin Examiner
February 10, 2022 6:45 AM


Peter Bernegger’s presentation included a number of slides with unproven claims. (Screenshot | WisEye)

A so-called “database analyst” presented what he said was evidence of millions of illegal voter registrations and hundreds of thousands of illegal votes in the 2020 election to the Assembly Committee on Campaigns and Elections on Wednesday.

Peter Bernegger, the grandson of the founders of sausage company Hillshire Farms who was convicted of bank fraud and mail fraud in 2009, said he’s been working with thousands of volunteers and a “supercomputer” to find evidence of fraud and misconduct in the state’s voter registration system. Despite repeated requests from Democrats on the committee, Bernegger refused to share further evidence or documentation of his allegations.

Bernegger said that his eight-step verification process, which he declined to elaborate on, has allowed his group to find evidence that people illegally voted twice, voted illegally from the wrong address or voted fraudulently in other ways. He also alleged that a “bad guy” could, without anyone noticing, access the state’s voter registration system and re-activate hundreds of thousands of voters who are listed as inactive because they’ve moved or died.

“We all know the official reported results, that Joe Biden won by 20,000 votes, but we have 46,000 people who voted and then were not verified by our system — that calls for a full investigation,” Bernegger said. “We’ve also found, using the supercomputer, there’s more than 1.5 million illegally registered voters in our state.”

Court decisions, recounts and investigations have repeatedly found that Biden won Wisconsin by about 20,000 votes and that there is no widespread evidence of fraud.

Bernegger called for a full investigation into his allegations and the dismantling of the Wisconsin Elections Commission. Bernegger has previously worked with former Wisconsin Supreme Court Justice Michael Gableman, who is conducting a widely criticized partisan review of the 2020 election on behalf of Assembly Republicans.

Gableman’s investigation has apparently looked into many of the same issues as Bernegger’s band of volunteers, dragging on for months longer than initially planned and spurring complaints and lawsuits along the way. Earlier this week, a Dane County judge called out Assembly Speaker Robin Vos (R-Burlington) for apparently deleting records related to Gableman’s work.

Election officials and Democrats said that Bernegger is drawing malicious conclusions out of easily explainable occurrences in the statewide voter registration database.

According to an explanation of the statewide system by the WEC’s technology director, odd entries are systematically examined and the built-in checks can resolve any problems — including duplicate registrations or clerical errors in information such as names or addresses.

“These are some odd entries but they all have a story. People forget (or don’t realize) just how many checks are built into the system,” the explainer, provided by WEC spokesperson Riley Vetterkind, states. “I’d caution that people should apply a critical eye to the spreadsheet snippets and homemade lists circulating. We see a lot of very old and/or inaccurate data being presented as representative of what is in the database.”

Bernegger said there were nefarious actors behind every corner of election administration and the maintenance of the state’s voter lists, allowing thousands of people to cast illegal ballots.

The statewide voter registration list includes more than 7 million entries, which includes years of voters who are still active and many who have been inactivated for various reasons. Despite election officials saying for months that this list isn’t how votes are tracked on Election Day and insisting it isn’t evidence of fraud that active and inactive voter files are stored in the same database, Bernegger repeatedly alleged this leaves the state open to fraud.

“You can see where we have a tremendous amount of inactive registered voters,” he said. “Now this gets to the crux of a problem. We know we have seen it with our own eyes. You could switch an inactive person to active with two clicks. We have seen it with our own eyes. It opens the door to fraud. Anybody in there, you’re talking electronic computer coding. Anybody gets access to the WisVote system, you can go in there, you could flip 100,000 people, vote them, set them back or take them off and nobody would ever know.”


Without evidence, Peter Bernegger told the Assembly Campaigns and Elections Committee he’d found hundreds of thousands of fraudulent votes. (Screenshot | WisEye)

Bernegger also raised a number of addresses where there are more voter files than people who live there, even though many of his examples are apartment buildings which could have high tenant turnover year to year.

He spent much of his testimony discussing the Electronic Registration Information Center (ERIC), an organization with dozens of member states that use the system to learn when voters move or die. Bernegger alleged that the organization is a plot to give its employees across the country access to sensitive voter information and that it is both improperly providing information and attempting to wrongly register people to vote.

Republicans in the Legislature passed a law requiring Wisconsin to be a member of ERIC and Republican allies previously filed a lawsuit that said the ERIC data is so accurate it must be used to deactivate people’s voter registrations, even if the data wrongly says they’ve moved.

Bernegger also stated that he and his group had filed 450 criminal referrals because of his findings, though he added it was too early to know if any charges would result.

Rep. Janel Brandtjen (R-Menomonee Falls), the committee’s chair and one of the Legislature’s most outspoken election conspiracy theorists, said several times that Bernegger’s testimony was not to be taken as him specifically accusing anyone of fraud and should only be taken as general information. Bernegger’s presentation included several examples of individual voters who he claimed had voted illegally in some way.

“I just wanna make sure you have said that we are looking at this information and we understand that we are not necessarily declaring fraud for anybody,” Brandtjen said. “We are asking questions about the data, the management, the duplication, so I think that [Bernegger] has mentioned several times that we are not claiming on one person, but we do have these questions.”

Rep. Lisa Subeck (D-Madison) took issue with that, saying that Brandtjen and Bernegger were giving different signals with Brandtjen saying these allegations should not be looked at specifically but Bernegger offering a number of specific examples in his testimony.

“I just want to be clear, though, that the presentation does draw conclusions about fraud, claiming that some individuals voted twice, talks about tens of thousands of illegally cast ballots to date,” Subeck said. “So, on one hand, you’re saying that there’s no conclusions about fraud, but the speaker is presenting it as if there are conclusions that have been drawn. And while that may be his conclusions, we certainly haven’t seen any documentation to back that up, nor have we seen law enforcement prosecutions to map that out.”

Subeck and Rep. Mark Spreitzer (D-Beloit) repeatedly asked Bernegger for proof to back up his claims outside of the screenshots of spreadsheets he displayed during his testimony. Bernegger refused, only saying he has “government documents” to verify what he’s saying.

Brandtjen was unbothered by Bernegger’s refusal to share his methods or his evidence, saying she understands why he wouldn’t want to give up the processes in the system he’s worked hard to develop.

“I know you’re being a little private about your process because, like I say, I know it’s taken you a lot of months to come up with it,” Brandtjen said. “I am not aware of the full system itself. But I’ve heard from some of your volunteers of the work that is being done.”

Bernegger said several times that he used the U.S. Postal Service’s change of address database to check if someone had actually moved, even though the Democrats repeatedly said there could be lots of reasons why someone would change their mailing address without changing their residential address for purposes of voting — such as going to college or maintaining a vacation home.

“There’s more innuendo here than there is actual evidence,” Spreitzer said.