On July 1, the Supreme Court ruled that presidents and former presidents enjoy “absolute immunity” from criminal prosecution for “conduct within his exclusive sphere of constitutional authority,” setting guidelines for which acts in former President Donald Trump’s federal election case can remain in the indictment but leaving large amounts of litigation for the district court.
The case, which has been on hold since December 2023, is unlikely to proceed to trial before the November election but may soon see a flurry of legal activity.
Chief Justice John Roberts wrote the majority opinion, with Justice Clarence Thomas adding his own concurring opinion. Justice Amy Coney Barret concurred in part, noting several lines of legal disagreement with the majority. Justice Sonia Sotomayor wrote the dissenting opinion, joined by Justices Elena Kagan and Ketanji Brown Jackson, who also penned a separate dissent.
Trump Case Will Continue
The Supreme Court has given the case back to the U.S. District Court of the District of Columbia, where Judge Tanya Chutkan will have to determine whether several of President Trump’s actions in the indictment were, essentially, official or unofficial.
“Despite the unprecedented nature of this case, and the very significant constitutional questions that it raises, the lower courts rendered their decisions on a highly expedited basis,” the opinion reads.
Both the district and circuit courts completely rejected assertions of presidential immunity, so there has been no briefing on whether actions in the indictment were official or unofficial.
“That categorization raises multiple unprecedented and momentous questions,” the opinion reads.
When Judge Chutkan rejected the motion to dismiss based on presidential immunity last year, the appeals court fast-tracked the appeal, rejected the motion, and also fast-tracked the appeal process to the Supreme Court.
All case proceedings were paused in the meantime, and Judge Chutkan had taken the case—originally scheduled for March 4—off her calendar. At the time, the judge still had a number of motions to rule on, including a major ruling on what evidence and arguments could be used at trial.
Now Judge Chutkan will have to sort out what actions must be removed from the indictment before the case can continue. This may not necessarily be a quick process; as court filings by both parties have shown, the defense and prosecution have clashing theories as to whether certain acts were official or unofficial.
Prosecutors have acknowledged that some of the acts in the indictment were indeed the official acts of a president, and it has largely been expected that special counsel Jack Smith may trim down the indictment so as to proceed with the case with minimal holdup.
Supreme Court Sets Some Guidelines
The special counsel has charged former President Trump with four counts of conspiracy and obstruction for his actions to challenge the 2020 election results.
Crucially, the Supreme Court decision does not throw out any of these charges.
However, several actions involved in some of the charges may need to be tossed. The majority opinion finds that presidents have absolute immunity for core constitutional powers and presumptive immunity for other official acts. This immunity does “not extend to conduct in areas where his authority is shared with Congress,” and unofficial acts taken while in office receive no immunity at all.
President Donald Trump, Attorney General William Barr, and state attorneys general discuss protections from social media abuses at the White House on Sept. 23, 2020. (Mandel Ngan/AFP via Getty Images)
The court ruled that President Trump’s conversations with the acting attorney general were core conduct subject to absolute immunity.
It also ruled that his conversations with the vice president about the counting of the votes were part of his official duties, thus subject to presumptive, but not absolute, immunity—finding that Judge Chutkan should now assess whether prosecution of these actions intrudes on the authority and functions of the executive branch, and prosecutors will have to rebut the presumption of immunity if so.
The court then found that President Trump’s conversations with state officials and other parties require more fact finding as to whether the actions were official or not—another task for the district court.
It offered similar guidance regarding President Trump’s speech on and leading up to Jan. 6, 2021. Some speech falls within the outer perimeter of official responsibilities, but there are contexts in which presidents speak unofficially, the majority opinion reads.
The Supreme Court also ruled that courts “may not inquire into the President’s motives” while considering whether an action was official or unofficial, as this “highly intrusive” line of inquiry could expose official conduct to judicial examination, a violation of the separation of powers.
The court remanded the case for the district court to “carefully analyze” whether the indictment’s remaining allegations are free from official acts and ruled that testimony or private records probing the president’s or his advisers’ official conduct may not be used as evidence at trial.
Court Tosses Impeachment Theory
Although the Supreme Court ruling could be read as a win for the former president (he posted on social media shortly after the decision, “BIG WIN FOR OUR CONSTITUTION AND DEMOCRACY”), the court rejected his attorneys’ legal theory.
Former President Trump’s attorneys had argued that presidents must be impeached before they are subject to prosecution on those same actions and that former President Trump’s acquittal in the Senate thus precluded prosecution, warranting dismissal of the indictment.
The high court majority had instead relied on views of the framers of the Constitution regarding the separation of powers to reach their opinion and dismissed the impeachment argument as one with little constitutional support.
However, the court agreed with the Trump attorneys in that “the ‘bold and unhesitating action’ required of an independent Executive” must not be chilled.
Majority Emphasize Need for Strong Executive
Chief Justice Roberts, writing for the majority, emphasized that the Framers of the Constitution had the vision of a strong executive. Unlike the other two branches, the president is “the only person who alone composes a branch of government,” he wrote, citing his previous opinion from an unrelated Trump case.
The court—and the Framers—have held an “energetic executive” to be crucial to national security, good government, and the safeguarding of liberty.
Prosecutors and dissenting judges had argued that the criminal justice system inherently includes safeguards that would prevent the wrongful prosecution of a president or chilling effects that may stem from this possibility.
The majority held that this was not protection enough, as the mere prospect of prosecution may “distort Presidential decisionmaking” and cause “undue caution,” effectively undermining the independence of the executive branch.
“The hesitation to execute the duties of his office fearlessly and fairly that might result when a President is making decisions under ‘a pall of potential prosecution’ … raises unique risks to the effective functioning of government,” the opinion reads.
Demonstrators and protesters gather with members of the news media in front of the Supreme Court to wait for it to announce its last decisions for this session in Washington on July 1, 2024. (Chip Somodevilla/Getty Images)
4 Justices Say Official Acts Can Sometimes Be Unconstitutional
All nine justices recognized immunity for a president’s exercising of “core constitutional powers,” but four found the majority’s test to be far too broad.
Justice Barrett, in her partly concurring opinion, and Justices Sotomayor, Kagan, and Jackson, in a dissenting opinion, wrote that there may be cases in which official acts are unconstitutional or criminal and should be subject to prosecution.
Justice Barrett wrote in favor of a narrower test for immunity, with a two-step process to determine the validity of criminal charges for official acts. The first is determining whether the criminal statute applies to the president, and the second step is to determine if that prosecution imposes any danger of intruding on the powers of the executive branch.
Justice Sotomayor wrote that the court’s ruling gave the appellant even more immunity than he asked for, finding no support for immunity from criminal prosecution outlined in the Constitution.
The dissenting opinion, joined by two other justices, takes a reproving view of President Trump’s actions on Jan. 6, 2021, and, as outlined in the indictment, also the majority opinion.
Justice Sotomayor wrote that the challenge of exercising core constitutional powers, such as the president’s veto power, was never challenged in the indictment. As the majority defines “core immunity,” “all sorts of noncore conduct” could be shielded from criminal prosecution, she wrote, including “nightmare scenarios” such as ordering the military to carry out an assassination of a political rival, organizing a military coup, or taking a bribe in exchange for a pardon.
Similar scenarios were discussed during oral arguments, and Justice Samuel Alito expressed skepticism, cautioning judges not to slander the military in presenting these hypotheticals.
Voters cast ballots in Georgia’s primary election at a polling location in Atlanta on May 21, 2024. The Supreme Court decision may affect former President Trump’s case in Georgia, as some of the acts listed in the indictment overlap with the federal case. (Elijah Nouvelage/Getty Images)
Case May Return to Supreme Court
This case may yet end up in the Supreme Court on another appeal.
Trump attorneys can be expected to challenge unfavorable district court rulings on whether certain acts were official or unofficial, and Judge Chutkan still has several pending motions to rule on—including other motions to dismiss the indictment.
An additional complication that could arise for prosecutors is the fact that Mr. Smith is prosecuting a second case against former President Trump in the Southern District of Florida, where a federal judge is set to rule on whether Mr. Smith was constitutionally appointed. Should the judge determine that he wasn’t and that the special counsel has no authority to prosecute, an appeal could end up before the Supreme Court, affecting both cases.
Ruling May Affect Georgia Election Case
Former President Trump was indicted in a similar case in Georgia. In the state case, he and 18 others were charged with racketeering for their actions in challenging the 2020 election results, and some of the acts listed in the indictment overlap with the federal case.
While the federal case charges no alleged co-conspirators, the state case also charges former Justice Department official Jeffrey Clark for actions that he has argued were part of his official duties.
That case is currently on hold, as the Georgia Court of Appeals has agreed to review the trial court’s decision to not disqualify the Fulton County District Attorney Fani Willis from prosecuting the case over alleged misconduct.
Should the appeals court rule quickly after it hears oral arguments in October and then decide not to disqualify the district attorney, prosecutors will still need to revisit the indictment to remove any official acts before proceeding with the case.
Former President Donald Trump is filing a motion to throw out his recent Manhattan conviction on 34 felony counts of “falsifying business records” and have his July 11 sentencing postponed after the U.S. Supreme Court ruled that U.S. presidents have immunity for official acts undertaken while serving in the White House.
According to a report from the New York Times, Trump’s lawyers have sought permission from Judge Juan Merchan, who is overseeing the case, to file a motion to set aside the conviction. The letter was sent just hours after the Supreme Court issued its highly anticipated ruling on presidential immunity, which will have major ramifications on the ongoing federal cases against the former president.
The letter will not be made public until Tuesday at the earlier, at which point prosecutors will have a chance to respond, a source familiar with the proceedings told the New York Times.
Trump’s legal team hopes to move forward with the motion just ten days before Trump is set to be sentenced in the case that has been plagued by political bias. Trump is asking Judge Merchan — a Biden donor whose daughter has raised millions of dollarsfor Democrat causes and candidates — to postpone the July 11 sentencing while Merchan determines whether the ruling affects the conviction.
It is unclear whether the motion will be granted, as the conduct covered in the Manhattan case took place before Trump was elected as president.
While it is unclear how Merchan will rule, the effort already appears to have caused a delay in the proceedings. Manhattan District Attorney Alvin Bragg’s office was expected to send a sentencing recommendation to the judge and likely recommend a prison term for the former president, though this did not occur.
If Merchan does not entertain the motion, it is possible that Trump’s legal team will revisit the matter when they attempt to appeal the conviction after sentencing, which is set to take place just days before the Republican National Convention.
The Supreme Court ruled 6–3 that presidents enjoy immunity from criminal prosecution for official, but not unofficial, acts—in a decision that’s expected to delay former President Donald Trump’s trial in the federal election case in Washington.
The Supreme Court held that: “Under our constitutional structure of separated powers, the nature of Presidential power entitles a former President to absolute immunity from criminal prosecution for actions within his conclusive and preclusive constitutional authority. And he is entitled to at least presumptive immunity from prosecution for all his official acts. There is no immunity for unofficial acts.”
The July 1 decision remands the case to the district court for further consideration.
Chief Justice John Roberts penned the majority opinion, which was joined in full by Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, and Brett Kavanaugh. Justice Amy Coney Barrett joined part of the opinion while issuing a concurrence of her own.
Justice Sonia Sotomayor penned a dissent, which was joined by Justices Ketanji Brown Jackson and Elena Kagan. Justice Jackson also issued a dissent.
Former President Trump responded to the decision on TruthSocial: “BIG WIN FOR OUR CONSTITUTION AND DEMOCRACY. PROUD TO BE AN AMERICAN!”
The ruling is a partial win for former President Trump, who asked for a broader form of immunity than the justices ultimately granted. Former President Trump had asked the court to rule that he enjoyed immunity from criminal prosecution for his official acts unless Congress had impeached and convicted him for those acts.
D.C. District Judge Tanya Chutkan had rejected the idea that presidents enjoyed immunity from criminal prosecution as did the U.S. Court of Appeals for the D.C. Circuit.
During oral argument in April, the conservative justices seemed poised to remand the case back to the district court in Washington with instructions on what constitutes official and private acts for further fact-finding proceedings.
“We’re writing a rule for the ages,” Justice Neil Gorsuch said during oral argument. He and Justice Ketanji Brown Jackson both made clear they were concerned about cases beyond former President Trump’s, which has forced the court to grapple with what constitutes a president’s official conduct.
Attorney D. John Sauer argued for former President Trump, and former Deputy Solicitor General Michael Dreeben argued for special counsel Jack Smith.
The most recent time the Supreme Court issued a major ruling on presidential immunity was in 1982, in Nixon v. Fitzgerald. The court ruled that presidents enjoyed absolute immunity from civil liability for actions that fell within the outer perimeter of their official duties.
What’s Next
The Supreme Court remanded the case, sending it back to the D.C. district court with the directive “to assess in the first instance whether a prosecution involving Trump’s alleged attempts to influence the Vice President’s oversight of the certification proceeding would pose any dangers of intrusion on the authority and functions of the Executive Branch.”
Another aspect of the decision directed the district court to weigh whether various aspects of Mr. Smith’s indictment constituted official or unofficial acts. That included allegations that former President Trump attempted to sway state officials, use fraudulent slates of electors, and his communications on Jan. 6, 2021.
The court’s syllabus, or overview of the ruling, noted: “The President possesses ‘extraordinary power to speak to his fellow citizens and on their behalf,’” quoting another opinion in Trump v. Hawaii.
“So most of a President’s public communications are likely to fall comfortably within the outer perimeter of his official responsibilities,” it added.
It’s unclear how much of Mr. Smith’s indictment will remain after lower court proceedings are completed.
“On remand, the District Court must carefully analyze the indictment’s remaining allegations to determine whether they too involve conduct for which a President must be immune from prosecution,” the Supreme Court said.
“And the parties and the District Court must ensure that sufficient allegations support the indictment’s charges without such conduct. Testimony or private records of the President or his advisers probing such conduct may not be admitted as evidence at trial.”
The decision came just days after the Supreme Court’s ruling in Fischer v. United States, which vacated the D.C. Circuit’s interpretation of a statute—18 U.S. Code Section 1512(c)—the Justice Department used to pursue Jan. 6 defendants and President Trump. In a footnote, Justice Roberts said that “[i]f necessary, the District Court should determine in the first instance whether the Section 1512(c)(2) charges may proceed in light of our decision in Fischer.
Opinions
The justices provided multiple concurrences and dissents. Justice Clarence Thomas wrote separately to question the legality of special counsels.
He said the attorney general “purported to appoint a private citizen as a Special Counsel … But, I am not sure that any office for the Special Counsel has been ‘established by Law,’ as the Constitution requires.”
Justice Barrett joined most of the majority opinion except for a portion wherein it criticizes the idea that a jury could consider evidence concerning a president’s official acts.
“That proposal threatens to eviscerate the immunity we have recognized,” the majority wrote. “It would permit a prosecutor to do indirectly what he cannot do directly—invite the jury to examine acts for which a President is immune from prosecution to nonetheless prove his liability on any charge.”
Justice Barrett, meanwhile, argued that “the Constitution does not require blinding juries to the circumstances surrounding conduct for which Presidents can be held liable.”
Justice Sotomayor’s dissent argued the majority “makes a mockery of the principle, foundational to our Constitution and system of Government, that no man is above the law.”
She went on to describe Mr. Smith’s indictment as painting “a stark portrait of a President desperate to stay in power.”
Justice Roberts pushed back in his majority opinion by arguing that the dissents “strike a tone of chilling doom that is wholly disproportionate to what the Court actually does today.”
During a Tuesday night segment on NBC Nightly News, justice and intelligence correspondent Ken Dilanian had an exclusive sitdown interview with the former federal prosecutor and chief investigator of the January 6 Committee, Tim Heaphy who told Dilanian that the federal government could’ve prevented the January 6 riot at the Capitol if they took the intelligence they received seriously and acted on the threats that were received about the rioters’ intentions that day.
What was just as out of the ordinary for NBC was the admission that among the more than 800 pages in the January 6 Committee’s report, none of it included their findings on the failure of law enforcement to prevent the riots. Anchor Lester Holt made as much clear in the opening moments of the segment before tossing to Dilanian:
“The January 6 Committee’s final report was more than 800 pages, but some material did not make the cut, including much of its findings on the failures of federal law enforcement leading up to the attack,” Holt admitted.
“The images of the attack on the capitol stunned America and the world. And tonight, in an exclusive interview, the chief investigator of the January 6 Committee says the government could have prevented it,” Dilanian reported before turning to Heaphy to ask “had law enforcement agencies acted on the available intelligence, do you believe the attack on the capitol could have been could have been successfully repelled?”
Heaphy responded: “I think it would have been a lot different had law enforcement taken a more assertive protective posture. The Intel in advance was pretty specific, and it was enough in our view for law enforcement to have done a better job operationalizing a secure perimeter.”
“Law enforcement had a very direct role in contributing to surely the failures—the security failures that led to the violence,” Heaphy added.
Dilanian revealed how “people familiar with the committee’s work tell NBC News members downplayed that finding because they wanted to keep the focus on former President Trump. Committee members dispute that.”
That admission was followed by Dilanian reporting how “Heaphy says the committee found the FBI, the Department of Homeland Security, and other agencies did not act on the intelligence they had, including this online threat forwarded to capitol police January 5, calling for thousands to go to Washington and help storm the capitol.”
Yet, according to Dilanian, “the FBI said it sent all the intelligence it had to the capitol police. DHS and capitol police say they’ve taken steps to make sure threat intelligence is better analyzed and shared.”
Now they tell us that law enforcement didn’t take the intelligence seriously or failed to act on it. Well over a month after the January 6 Committee report was released, these key findings were conveniently left out of the over 800-page report. Instead, the hyper-partisan committee was more focused on what former President Donald Trump says was a political witch hunt against him.
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Former FBI chief Chris Swecker has admitted that the bureau has been infiltrated by goons working for the World Economic Forum (WEF) who are working to destroy America.
Ex-FBI Assistant Director Chris Swecker on Tuesday said he supports creating an independent commission modelled after the U.S. Senate’s 1970s Church Committee to investigate the WEF coup d’etat of the FBI and impose reforms on the tarnished law enforcement agency.
Justthenews.com reports: Swecker, a lawyer himself, said one of the many tell-tale signs that the FBI has lost its independence is the bureau’s relationship with Big Tech firms, as exposed by recent internal file releases by Twitter and a lawsuit filed by the attorneys general of Louisiana and Missouri.
The original partnerships, he said, were designed to legitimately counter foreign influence operations on U.S. social media but have since evolved into spying and censorship operations impacting Americans.
“The FBI has an industry outreach program to help exchange information with industry, helping in the counterintelligence efforts of the FBI. This has gone well beyond that,” he said. “This is nothing but domestic spying, and this is nothing but suppression of First Amendment rights and ideas.”
He said the bureau’s role in pressuring Twitter and other social media and search sites to censor Americans “needs to be the first line of inquiry” in a new Congress.
A growing number of prominent figures — including House Republican Leader Kevin McCarthy, incoming House Judiciary Committee Chairman Jim Jordan and retired FBI intelligence chief Kevin Brock — have embraced the idea that Congress should create a blue-ribbon panel modeled after the 1970s Church Committee to probe where the FBI has gone astray and to craft meaningful reforms.
Swecker said he believes that is a good approach, noting that while he remains friends with Christopher Wray, the current FBI director has allowed his agency to lose significant public trust.
“The Church Committee was a full inquiry into what were perceived to be some very serious abuses by the FBI in the domestic surveillance area, in terms of watching U.S. citizens doing things involving U.S. citizens that were considered to be abuses of their power,” he said. “And I think we’ve come full circle here.”
Swecker said the FBI’s involvement in labeling school parents “domestic terrorists,” and its “bare-knuckles” pursuit of Donald Trump contrasted with its “kid gloves cases” against Hillary Clinton, Andrew McCabe and Hunter Biden have not only shaken public trust but also the internal confidence of the FBI.
“I’m telling you the retired agent community and many agents inside the FBI on active duty are saying this needs to be looked at,” he said. “I’m not big fan of congressional inquiries, but they need to shine some light on this.”
Swecker, who retired as the assistant director for criminal investigations after 24 years inside the FBI, said the bureau’s problems have been long in the making, beginning near the end of Director Robert Mueller’s term and accelerating under his successors, James Comey and Christopher Wray.
“I think there’s a cultural shift that started late in Mueller’s term and then we got into sort of full stride in Comey’s term, and is now being sort of perpetuated under Chris Way’s term, and that is that DOJ has basically taken over the FBI,” he said. “They were supposed to have some independence despite being a Bureau under the Department of Justice.”
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Until very recently, few Americans were familiar with Maricopa County, Arizona. It made the news only rarely and mostly for reporting its status as one of the fastest-growing counties in America. Since 2020, however, Maricopa County has gained notoriety for a very different reason. It’s emerged as an infamous cauldron of bitter political disputes and shady shenanigans crucial for denying the election to Donald Trump and his supporters.
In 2020, the votes of Maricopa County, where 6 out of 10 Arizonans live, were decisive for the narrow, declared victory of Joe Biden over Trump in the Grand Canyon State. Trump heatedly questioned the tally. Sensing misconduct, his supporters in the Arizona Legislature attempted to investigate the election. But Maricopa County politicians blocked these efforts.
The Maricopa County Board of Supervisors, the county’s governing commission, consists of five members, four RINOs and a Democrat. They stonewalled and fought efforts to scrutinize the election. Legislative and Arizona Attorney General’s attempts to audit the election results ultimately went nowhere. Key legislators backed down in response to threats from county supervisors and their powerful allies, including the leftist media and the Biden FBI. The firm that attempted the election probe, Cyber Ninjas, went out of business after a judge hammered it with fines.
In 2022, the same pattern returned. Kari Lake, a former Phoenix TV anchorwoman, ran for governor of Arizona. She adopted a MAGA platform and earned Trump’s endorsement. She was declared the loser, however, after Arizona narrowly rejected Trump’s slate of candidates for the state’s top four offices.
This time, it was thought MAGA world was ready. Maricopa County officials were credibly accused by Lake’s attorneys and expert witnesses of tampering with ballots and voting machines to prevent election-day voters—who were disproportionately Republican and pro-Lake—from successfully casting their votes. Serious questions were raised and evidence supplied about county officials violating state laws governing proper chain of custody for county ballots.
Again, Maricopa County Supervisors and allied county officials were defiant. They didn’t give an inch when fighting in the friendly terrain of the media and the anti-Trump courts. Despite mountains of evidence, Lake and the other two candidates lost all their lawsuitschallenging the election. To add insult to injury, and presumably to deter any future MAGA litigation questioning election results, a federal judge imposed sanctions against Lake’s lawyers (including no less than Harvard Law Professor Alan Dershowitz). For his part, a state judge granted a $33,000 costs judgment against Lake’s team.
Notably, Lake had trouble finding any lawyers willing to represent her. She complained at one point she might have to settle for “Better Call Saul” because lawyers feared threats to their livelihood. The attorneys who signed on as her counsel were not even experts in election law. Two conservative Republican county supervisors in a border county, Cochise County, had concerns about election irregularities but were left high and dry. They could not find any attorneys to help them.
How could such corruption occur “in broad daylight,” as Lake complained? And why were lawyers so hesitant to help them? The answers to the two questions, it turns out, are essentially one and the same.
The corruption in Maricopa County was no secret to informed citizens in the county and state. In fact, for years, Maricopa County has been putting to shame the old-school corruption of Cook County, Illinois. I now frequently say that Maricopa County has replaced Cook County as the most corrupt county in the country.
Years before, Maricopa County officials showed they could take out prosecutors who dared to stand up to them. More than any other reason, this precedent is why Trump’s public appeals for “brave prosecutors and judges” to come forward have been in vain, particularly in Arizona.
I know because I was there fighting this corruption more than a decade ago.
Maricopa County Attorney Andrew Thomas
First, some background on the greasy politics of the Maricopa County Supervisors. It started with a now-distant election over illegal immigration. After serving as an assistant attorney general for Arizona, I signed on as a deputy county attorney following the election of my new boss, Maricopa County Attorney Andrew Thomas, a Harvard Law graduate. In 2004, the same year in which then-citizen Trump began his hit TV show “The Apprentice,” Thomas ran for Maricopa County Attorney—district attorney for greater Phoenix—with a simple slogan and promise: “Stop Illegal Immigration.” This was the first time a local prosecutor had run on such a platform.
John McCain and Jon Kyl
Overcoming the heated opposition of the political establishment, including both Republican U.S. senators (John McCain and Jon Kyl, who wouldn’t cross McCain), Thomas was elected.
The following year, Thomas went about keeping his campaign promise. After Maricopa County Sheriff’s deputies arrested U.S. Army Reservist Patrick Haab for detaining illegal immigrants at gunpoint at an Interstate rest stop, Thomas declined to prosecute him. Thomas was then picketed by left-wing activists and publicly denounced by the U.S. Attorney for Arizona and Maricopa County Sheriff Joe Arpaio (yes, that Sheriff Arpaio). Shortly thereafter, as Arizonans increasingly demanded a secure border, Arpaio changed course and became a staunch ally of Thomas in the fight against illegal immigration. Working together, Thomas and Arpaio single-handedly drove illegal immigrants out of the state in a massive exodus. This made international news and horrified the ruling class.
Thomas helped draft a ballot measure to end the right to bail for illegal immigrants accused of serious felonies. Seventy-seven percent of Arizonans voted for it in 2006. When Arizona courts sought to shield illegal immigrants from the law (emails surfaced showing that senior Maricopa County court personnel had instructed their staff not to enforce the measure), Thomas publicly denounced these actions.
In response, retired judges went to the Arizona State Bar—part of the state judiciary which controlled Thomas’ law license—and urged them to “do something” about Thomas. A wave of State Bar investigations ensued, 13 in total. Thus began a five-year campaign of ceaseless State Bar investigations and attacks on Thomas’ law license. It’s now standard practice for leftist bar associations to try to disbar conservative attorneys who threaten the Left. But most people don’t realize this tactic began in Arizona with the corrupt efforts to stop Thomas.
The State Bar openly retaliated against one of Thomas’ expert ethics witnesses, denying him appointment to a national legal board because of the expert’s affidavit in support of Thomas. Even leftist editors at The Arizona Republic newspaper were shocked and criticized this retaliation. (Note: The Arizona Republic conveniently has removed links to these older articles unhelpful to the left, but Thomas has provided extensive citations, and they can be found on library microfiche if searched for.)
Brave and undeterred, Thomas pressed an array of reforms. He ended plea bargaining as we know it for serious violent criminals. He pursued the death penalty in a greater number of murder cases. He refused to give special plea bargains sought by well-connected defense attorneys or judges; instead, he set up a system so that every defendant was treated the same.
Donald Stapley and Mary Rose Wilcox
Thomas advocated giving voters more information about judges’ performance when they were up for retention elections. This would have meant fewer judges would be retained by an electorate otherwise largely kept in the dark about judges’ rulings on key cases and issues. Finally, Thomas and Arpaio formed an anti-corruption task force. These probes very quickly led them to uncover serious misconduct involving two of the five members of the Maricopa County Board of Supervisors, which controlled an enormous county budget and wielded other great powers in the sprawling county. Those two supervisors, Donald Stapley and Mary Rose Wilcox, were indicted by county grand juries for corruption.
Stapley raised about $70,000 for a race where he had no opponent, then spent it on luxury items for himself and his family. In contrast, when Jesse Jackson Jr. did the exact same thing in Cook County, he was sentenced to prison for two and a half years. Wilcox failed to disclose material monetary associations on her financial disclosure forms, including ones that would influence her votes.
Thomas and Arpaio also attempted to investigate potential financial and other improprieties in the construction of the new Maricopa County courthouse. This was the most expensive public-works project in the history of Maricopa County government. Powerful politicians, judges, and lawyers were scrutinized, and initial evidence was uncovered.
For the establishment, this was the final straw. In short, the courts blocked the investigation of the Maricopa County project, scuttled the other corruption cases brought by Thomas and Arpaio, and turned the tables to investigate Thomas with “ethics” charges. One “courthouse insider” summed up the behind-the-scenes dirty war against Thomas when boasting anonymously and brazenly to The Arizona Republic, “The establishment will take care of Andrew Thomas.”
Justice Andrew Hurwitz
The courts as an institution had their own scores to settle with Thomas—and they worked closely with Maricopa County Supervisors to get rid of him. After the Arizona Supreme Court chief justice recused herself from the State Bar ethics investigations into Thomas, this left the vice chief justice, Andrew Hurwitz, as the senior justice overseeing the case. Hurwitz was the former chief of staff to liberal Democratic Governor Bruce Babbitt and a well-connected advocate of liberal causes (as noted by Heritage Action, which criticized Hurwitz’s leftist politics when he was later nominated for a federal judgeship).
Left-wing State Bar lawyers were carefully selected, in violation of the State Bar’s own rules, to drive Thomas out of the legal profession. They ultimately sought his disbarment, instituting proceedings denounced by the Maricopa County Republican Committee as “baseless and politically motivated.”
They alleged Thomas had targeted his opponents with politically motivated prosecutions. This is a joke to Republicans and Trump supporters, who know that politicians such as New York’s Democrat Attorney General have run for office promising to target Trump and escape any State Bar investigations or judicial correction. Moreover, the claim against Thomas was provably false. In fact, Thomas had tried repeatedly but unsuccessfully to hand off the investigations to other prosecutors. Incredibly, the Maricopa County Supervisors and their county manager blocked him from appointing independent special prosecutors to handle the matters. The county officials then claimed he had unfairly targeted them when he went forward with the cases himself!
I came into the picture because I helped Thomas fight back with a federal RICO lawsuit against these figures. The federal suit alleged these powerful insiders were wrongfully targeting his law license in violation of the U.S. Constitution. Robert Driscoll, a senior lawyer in the Bush Justice Department and commentator on the Fox News Channel, vouched for this lawsuit. The State Bar was so incensed that they then targeted my law license for allegedly filing a frivolous lawsuit (I wasn’t even named as an attorney on the lawsuit until after it was drafted and filed, that was how minimal my role was, and the lawsuit was withdrawn a couple of months later). They did so even though Thomas eventually was disbarred—as the lawsuit correctly predicted—in violation of his rights, thereby directly proving the suit’s validity.
The Maricopa County Supervisors prevented Thomas from having even a semblance of a fair trial. This was because, in the words of the left-wing Arizona Republic, they “repeatedly fired” Thomas’ lawyers. This happened no fewer than five times, in clear violation of his civil rights. Nevertheless, they got away with it—just as these powerful establishment figures got away with their Trump-related antics in the 2020 and 2022 elections.
These actions were only their latest display of shameless audacity. To facilitate the lynching of Thomas, the Maricopa County Supervisors had earlier voted to “fire” Andrew Thomas from handling county civil legal matters. They replaced him with the law firm of the president of the State Bar! Even The Arizona Republic questioned this outrageous move. Years later, the Arizona Court of Appeals struck down this move as illegal—but only after they had succeeded in ousting Thomas.
The final kicker: Some of the supervisors got rich from these machinations. Stapley, Wilcox, and other Maricopa County officials filed lawsuits against their own entity, Maricopa County, related to alleged wrongful prosecutions on which the Thomas disbarment was partially based. This included claims by three out of five Maricopa County Board of Supervisors members at the time, officials who directly or through subordinates repeatedly fired Thomas’s lawyers and disrupted his defense.
The Arizona Republic editorialized that these claims were “an insult to taxpayers.” The process set up for settling these cases, they wrote, “is rife with opportunity for self-dealing and abuse.” The county manager handling the claims “works at the pleasure of the very people who would benefit from the quiet, discreet, out-of-the-public-view mediation process he has constructed.” But they got away with it yet again. Ultimately, millions of dollars were handed out to Maricopa County officials by subordinates of the Maricopa County government without their having to prove their case to a jury.
All of this happened even though Thomas was clearly and provably innocent of wrongdoing. Don’t take my word for it. Listen to the two separate grand juries of Arizona citizens who investigated these very matters. One was a federal grand jury impaneled and controlled by the Obama Justice Department working with a politicized FBI. If this lawfare tactic sounds familiar to patriots today, note that the current practice of DOJ/FBI targeting of conservative mavericks was honed in Arizona many years before the current situation.
Former Judge William O’Neil
The other grand jury was a state one, overseen by Judge William O’Neil. Yes, this was the same Judge O’Neil who later oversaw Thomas’ disbarment trial as State Bar disciplinary judge and refused to recuse himself — he ultimately wrote the disbarment order! As noted in an official Arizona Supreme Court opinion, O’Neil ridiculously claimed he “did not recall” presiding over the state grand-jury investigation of one of Arizona’s most prominent elected officials at the time. Liar.
Both grand juries, federal and state, declined to charge Thomas. In response to media reports about the investigation (he was never contacted by law enforcement), Thomas publicly volunteered to speak to the federal grand jurors but wasn’t taken up on his offer. At all times, Thomas answered every question publicly and under oath, never taking the Fifth Amendment.
Law Professor Ronald Rotunda
Esteemed legal experts were astounded by this circus. Ronald Rotunda, a law professor at the Chapman University School of Law, was one of the nation’s leading authorities on constitutional law and legal ethics. He stated in an affidavitthat the Bar proceedings were initiated unlawfully. Rotunda noted that John Phelps, the CEO of the Arizona State Bar, “without the benefit of any statute or rule, initiated and insinuated himself into an ethics investigation.” Rotunda stated,
“In my forty years of experience as a practicing lawyer, legal scholar, and law professor, concentrating in the areas of legal ethics and constitutional law, I have never witnessed, confronted, nor heard of a situation where an administrative or executive officer of a state bar organization has initiated and commenced an ethics investigation against a lawyer, without any specific legal authority authorizing his actions.” Rotunda added, “it is my opinion that [the] initiation of the Bar investigations against Mr. Thomas, et al. was without benefit of law and illegal, and consequently violated the due process rights of the investigative subjects.“
He concluded, “The State Bar of Arizona’s reckless use and false representation of its authority to initiate investigations of attorneys is a denial of the fundamental right to due process applicable to disciplinary investigations.“
Another key witness was former Rep. Bob Barr. A former U.S. Attorney in Georgia who later served in Congress, Barr was one of the House Managers of the impeachment trial of President Bill Clinton.
Former Representative Bob Barr (1995-2003)
In a series of affidavits, Barr concluded the process used against Thomas “violates the State Bar’s rules and procedures and, more importantly, violates Mr. Thomas et al.’s constitutionally-protected due process and equal protection rights.” The State Bar had violated its own “rule requiring a written complaint to be lodged prior to the initiation of any ethics investigation.” Instead, “Independent Bar Counsel has represented that there are no written complaints and that he is maintaining an ‘open file’ with the State Bar of Arizona.”
“The due process violation inherent in this procedure is obvious,” Barr explained. “Without specific notice of the complaints against them and the facts that inform those complaints, it is impossible for Mr. Thomas et al. to adequately defend themselves against those charges. Moreover, without written documentation of the complaints pending against them, the investigation can morph and grow regardless of any defense offered by Mr. Thomas et al. This is utterly contrary to the notions of fairness and justice in this country and does not amount to procedural due process by any reasonable or legal concept thereof.“
Since other attorneys given the benefit of the rule are treated differently, Barr noted, “This disparate treatment is a violation of Mr. Thomas et al.’s right to equal protection of the law under both the U.S. Constitution and the Constitution of Arizona.” Moreover, “prosecutors…enjoy absolute immunity from civil liability for their actions in initiating prosecutions…the State Bar is employing its power improperly to interfere with the prosecutorial discretion of Mr. Thomas.”
Barr agreed with Rotunda that initiating the State Bar proceedings against Thomas was “illegal.” He added, “The blatant disregard for the rule of law” here “and failure to abide by the State Bar’s own rules is not only unusual, it is practically unheard of.”
Finally, Barr stated that the negative actions taken by the State Bar and State Bar president against one of Thomas’ expert witnesses, Ernest Calderon, who was a former State Bar president himself, “is a clear and unambiguous threat” and an “illegal threatagainst a witness” that was never retracted by the State Bar or Arizona Supreme Court.
“The most widely-recognized example of witness intimidation is in the criminal prosecution of members of the mafia,” Barr noted. He stressed, “a threat issued to a witness in one prosecution can have the very real effect of chilling witness testimony in many prosecutions….That general statement risks chilling witness testimony in any ethics investigation against Mr. Thomas and those to be allied with Mr. Thomas.“
“If the Arizona State Bar is willing to retaliate against an attorney who served only as a witness for Mr. Thomas,” Barr stated, “there is no reason to believe it would not retaliate against attorneys who represent Mr. Thomas or others who are being investigated based upon allegations made by the State Bar.” Additionally, “The State Bar has an outstanding and unrepudiated threat against attorneys and witnesses who may testify or act on behalf of Mr. Thomas et al. The foregoing situation is extraordinary, unprecedented, and a violation of the investigative subject’s right to due process.“
Even leftist hack editors and writers for The Arizona Republic spoke up for Thomas. Editors wrote a column when the State Bar investigations commenced entitled “Bar’s Witch Hunt.” Chronicling the Thomas case, establishment political consultant turned columnist Bob Robb didn’t mince words. The normally staid columnist wrote, in a series of columns, that the case showed the “credibility of the Supreme Court’s disciplinary process has been severely shaken“; “the gross overcharging…gives credence to Thomas’ claim that he is the victim of a witch hunt“; and the final disbarment ruling made clear Thomas “never had a chance” at fair treatment by the judicial panel. Others chimed in, including American Thinker, which published an article titled “Corruption in Maricopa County.”
By then, however, Thomas was out of office, having narrowly lost his race for Attorney General of Arizona because of these smears (I wonder about fraud in that race now, but it’s too late to investigate or prove anything). People moved on. But grassroots activists remembered him. After a panel of three legal insiders disbarred Thomas in April 2012, the Maricopa County Republican Committee and other Republican Party leaders gave him a standing ovation when he addressed them. So did other GOP and Tea Party groups in Maricopa County.
Oh, and the sanctions that were threatened and/or imposed against Kari Lake and her attorneys in 2022? That same intimidation tactic was used and perfected against Thomas, me, and another attorney swept up in the inquisition. Following our sham trial, Thomas was disbarred, and I was suspended for six months from the practice of law for exposing their wrongdoing in the RICO suit.
The Arizona State Bar then demanded that we repay the cost of their show trial—over half a million dollars. Faced with that looming threat, our lawyers being fired yet again by the county supervisors, and a justice system hostile to our rights, we were coerced into agreeing to costs of over $100,000. The State Bar did not seek to convert the ruling into a judgment against us and collect it but seemed content to let the outstanding financial threat chill our criticism of the proceedings (the threat didn’t work). Nevertheless, a decade later, I still can’t practice law until I agree to pay this outrageous sum. This is an amount of money that I, like most people, don’t have.
Thomas was no quitter. He fought back as best he could. Following his disbarment, Thomas announced his candidacy for governor of Arizona. Running on a platform of securing the border and standing up to activist judges, he collected signatures from just under 10,000 Arizona voters, almost double the number required to qualify for the ballot. More than 4,500 Arizona citizens contributed $5 to his campaign. Thomas collected many of these by campaigning door-to-door in Maricopa County. As a result, he qualified for more than $750,000 in Clean Elections funding for his campaign.
Thomas received the endorsements of the immediate past state Republican Party chairman, the immediate past Maricopa County Republican Party chairman, numerous conservative grassroots leaders, and Fox News contributor Michelle Malkin. Malkin described Thomas as a “true and tested independent leader” and praised him for withstanding “nightmarish abuse at the hands of the state’s liberal judicial and legal elites.” Despite being vastly outspent by multi-millionaire establishment opponents and taking on the no-holds-barred opposition of the ruling class, Thomas ran a strong race and successfully promoted the conservative causes for which he had sacrificed his career.
Thomas’ gubernatorial campaign drew greater attention to the need for judicial and State Bar reforms. The following year, the Arizona legislature formed a joint legislative study committee to consider State Bar legislation. I assisted in part. Following the recommendations of the committee, the Arizona House of Representatives voted in 2016 to pass what the leftist media tellingly dubbed the “Andrew Thomas Revenge Bill.”
The legislation would have essentially dismantled the State Bar. In the State Senate, this legislation passed on the first vote but then failed on the second and final vote, following fierce lobbying by the State Bar and pressure from the media.
Donald Trump
The election of President Donald Trump and his signature promise to “Build the Wall” to secure the U.S. border was a triumph of the grassroots politics popular for many years in Arizona. The dark forces and ruling-class machinations that came down on President Trump and his administration were very much reminiscent of those deployed against Thomas (and me) a decade before.
Trump has expressed concern that the injustices done to him will turn into a “cold case.” All I can say, respectfully, is: Tell me about it. Our “cold case” fundamentally changed both law and politics in Arizona — and, since 2020, the country as a whole because of Arizona’s influence on national elections. The travesty done to us happened a decade ago and is now forgotten by all except for some grassroots activists and lawyers in Arizona. For the latter, the Thomas case has become Banquo’s ghost, haunting and intimidating them, and warping our elections and society.
In other words, our problem is now your problem.
The Maricopa County Board of Supervisors’ actions following the 2020 presidential election revealed the obstacles Thomas faced in attempting to hold accountable members of that same powerful establishment institution. Their defiant and dirty tactics in the 2022 elections were a fresh reminder that they remain shameless and unfazed by any criticism Trump supporters have hurled at them.
Real election and legal reforms are possible only by overturning the rotten, destructive rulings in the once-high-profile Thomas case and providing some measure of justice to the targets of that madness. The process followed in the Thomas case was demonstrably and outrageously violative of basic and universal civil rights. The case must be tossed on those grounds alone. Otherwise, nothing will change. These rulings still baldly intimidate prosecutors and lawyers, especially in Arizona, but increasingly the rest of America.
Sovereign’s Handbook by Johnny Liberty (30th Anniversary Edition) (3-Volume Printed, Bound Book or PDF)
A three-volume, 750+ page tome with an extensive update of the renowned underground classic ~ the Global Sovereign’s Handbook. Still after all these years, this is the most comprehensive book on sovereignty, economics, law, power structures and history ever written. Served as the primary research behind the best-selling Global One Audio Course. Available Now!
Dawning of the Corona Age: Navigating the Pandemic by Johnny Freedom (3rd Edition) (Printed, Bound Book or PDF)
This comprehensive book, goes far beyond the immediate impact of the “pandemic”, but, along with the reader, imagines how our human world may be altered, both positively and negatively, long into an uncertain future. Available Now!
More than 18 million people were injured so badly by their first COVID shot from Pfizer or Moderna that they had to go to the hospital. That’s according to the CDC’s own internal data, which a court just ordered the federal agency to release to a watchdog group.
Instead of alerting the public to the incredible dangers of these shots and completely shutting down Joe Biden’s mass vaccination mandates, the CDC covered up the info until it was forced to release. Everyone in a position of authority at the CDC should be fired for this. What good is a “public health” agency if it fails to alert the public that 8% of vaccine recipients are being hospitalized?
The CDC started a vaccine monitoring program back at the very beginning of the COVID shot rollout in December of 2020. You might remember it. The program was called V-safe. People were asked to install the V-safe app on their smartphones and then self-report if they have any negative effects from the experimental mRNA shots, which were released to the public under an Emergency Use Authorization from the FDA.
A lot of people were eager to help, because world governments had scared many folks very badly over the virus. Many thought that the COVID shots were a medical miracle in late 2020. So, more than 10 million people downloaded V-safe on their smartphones, and then proceeded to get vaccinated.
That’s a huge sample size for a medical study. With 10 million people participating in the V-safe self-reporting system, it gives us an extremely accurate statistical model to use when studying the 230 million Americans who have had at least one COVID shot.DC
The CDC tracked data in the V-safe program for the first 18 months of the vaccine’s public availability, up through July of this year. But then, strangely, the CDC never published any data from V-safe. We couldn’t see it. We just had to trust the CDC, which had been caught lying repeatedly.
The CDC’s main webpage about the mRNA COVID shots still says, to this very day, “COVID-19 vaccines are safe, effective and free.” That’s the very first sentence on the website. Safe and effective! That’s been the CDC’s position for the entire time. The vaccines are safe, and they cannot hurt you.
If that’s true, then why wouldn’t the CDC release the data until a court ordered it to do so following a lawsuit by the Informed Consent Action Network (ICAN)? The data speaks for itself.
Of the 10 million people who participated in V-safe – again, a massive sample size – 3.3 million reported Adverse Health Impacts (AHIs) immediately after their first vaccination. That’s 33% or one-in-three. Of those 3.3 million people, 1.2 million reported that they were unable to perform daily activities for a time after vaccination. 1.3 million reported getting so sick from the shots that they had to miss school or work. And about 800,000 reported being hospitalized by their COVID vaccination.
That last figure is the most worrisome. 800,000 hospitalizations out of 10 million people? That’s an 8% hospitalization rate. It means that as many as 18 million of the 230 million people who received at least one shot may have been hospitalized with an adverse reaction.
A study published in June of 2021 by the National Institutes of Health – where Tony Fauci works – found that the hospitalization rate from COVID-19 for the total population was 2.1%. If you are under the age of 40, the hospitalization rate from COVID-19 is just 0.4%.
For the shots, the hospitalization rate has been 8%.
This means that:
YOU ARE 4 TIMES AS LIKELY TO BE HOSPITALIZED BY THE VACCINES THAN BY COVID ITSELF, NO MATTER WHAT AGE GROUP YOU ARE IN.
YOU ARE 20 TIMES AS LIKELY TO BE HOSPITALIZED BY THE SHOTS IF YOU ARE UNDER AGE 40 THAN BY COVID ITSELF.
ICAN has set up a website where you can finally view the CDC’s V-safe data online. The data was released on October 3, 2022, under a court order. You can see the data for yourself HERE.
The CDC has been lying to the American people about the vaccines all this time. There need to be legal consequences for this. Public trials and long jail sentences are necessary for anyone at the CDC who participated in this cover-up.
Sovereign’s Handbook by Johnny Liberty (30th Anniversary Edition) (3-Volume Printed, Bound Book or PDF)
A three-volume, 750+ page tome with an extensive update of the renowned underground classic ~ the Global Sovereign’s Handbook. Still after all these years, this is the most comprehensive book on sovereignty, economics, law, power structures and history ever written. Served as the primary research behind the best-selling Global One Audio Course. Available Now!
Dawning of the Corona Age: Navigating the Pandemic by Johnny Freedom (3rd Edition) (Printed, Bound Book or PDF)
This comprehensive book, goes far beyond the immediate impact of the “pandemic”, but, along with the reader, imagines how our human world may be altered, both positively and negatively, long into an uncertain future. Available Now!
Issuing such cellular devices to illegal immigrants is part of an Immigration and Customs Enforcement program called the Alternatives to Detention, which essentially gives the individuals access to U.S. soil before their court dates.
Issuing such cellular devices to illegal immigrants is part of an Immigration and Customs Enforcement program called the Alternatives to Detention, which essentially gives the individuals access to U.S. soil before their court dates.
The smartphones, which cost taxpayers $361,218.08 per day, use facial recognition, GPS monitoring, and voice identification, according to ICE.
Jon Feere, former DHS senior adviser and director of investigations at the Center for Immigration Studies, told the Free Beacon last month that the ATD program has already proven to be a “costly failure,” noting that thousands of illegal immigrants have disappeared annually.
“And there’s no reason to think this will be any different,” Feere said. “The goal should be to quickly determine whether these individuals have a valid case, and if not, to quickly deport them.”
Instead, he said, the Department of Homeland Security is developing a massive social services program that will benefit non-governmental organizations without guaranteeing that any of those individuals would return home when ordered.
The Daily Caller reports the ATD program had 91,793 illegal immigrants enrolled in 2020. And by the fiscal year 2021, the program had 136,026 illegal immigrants.
The Post Millenial reports the number of enrollments clocks in at 316,700 — a 266% increase since President Joe Biden took office.
Ron Vitiello, former acting director of Immigration and Customs Enforcement, told the Free Beacon that the program is the “sort of thing popular among the left.”
“It sounds great, but the reality is that people in these programs will likely never be [deported],” Vitiello said. “There’s nothing at the end of these programs. If they don’t report in, that’s that. They’re now a fugitive.”
According to The Washington Free Beacon, a new record was set with migrant encounters at the southern border, with more than two million for the fiscal year in August. Of those encounters, approximately 1.6 million illegal immigrants have hearings scheduled who are not in detention, according to an internal ICE report on ATD programs obtained by Fox News.
Sovereign’s Handbook by Johnny Liberty (30th Anniversary Edition) (3-Volume Printed, Bound Book or PDF)
A three-volume, 750+ page tome with an extensive update of the renowned underground classic ~ the Global Sovereign’s Handbook. Still after all these years, this is the most comprehensive book on sovereignty, economics, law, power structures and history ever written. Served as the primary research behind the best-selling Global One Audio Course. Available Now!
Dawning of the Corona Age: Navigating the Pandemic by Johnny Freedom (3rd Edition) (Printed, Bound Book or PDF)
This comprehensive book, goes far beyond the immediate impact of the “pandemic”, but, along with the reader, imagines how our human world may be altered, both positively and negatively, long into an uncertain future. Available Now!
The Supreme Court’s latest momentous term delivered major victories for religious freedom.
The ability to freely exercise one’s religious beliefs is one of the most essential rights enshrined in the U.S. Constitution by our Founding Fathers. It distinguishes America as a free nation. Yet many governmental institutions — from schools to cities and states — have curtailed this constitutionally-protected right by misrepresenting the First Amendment.
The rulings in three cases this term, Carson v. Makin, Kennedy v. Bremerton School District, and Shurtleff v. Boston, corrected decades of misinterpretation and applied the First Amendment as originally intended. Predictably, some progressive legal scholars referred to the rulings as “hypocrisy” and “regressive decision-making” spurred by the “religious right.” But such hyperbolic characterizations minimize the problems that pervaded religious liberty jurisprudence. The decisions in these cases are indeed consequential, but only as a remedy proportionate to the issues they resolved.
The First Amendment states, “Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof.” Otherwise known as the Free Exercise and Establishment Clauses, these words were meant to protect the expression of faith but have, ironically, been used as a basis for religious discrimination.
This paradox was clearly evident in Carson v. Makin. In this case, the justices evaluated Maine’s Town Tuitioning Program, which provided state aid to students living in towns without public schools. The program supported education at secular schools only; faith-based institutions and their students were prohibited from receiving funding. This unmistakably biased policy adversely affected specific groups of students and needlessly deprived them of a values-aligned education. While the state attempted to distinguish between discrimination based on religious status and identity, both prevent students from freely exercising their faith. Discriminating against schools with religious instruction is simply discrimination against religion.
It was not surprising that the justices agreed with this view since they reached a similar judgment in analogous cases. Referring back to Trinity Lutheran Church v. Comer and Espinoza v. Montana, Chief Justice John Roberts, writing for the majority, plainly indicated that the “Free Exercise Clause forbids discrimination on the basis of religious status.” Roberts concluded that “there is nothing neutral about Maine’s program. The State pays tuition for certain students at private schools — so long as the schools are not religious. That is discrimination against religion.”
But this wasn’t the only triumph for religious liberty this term. In Shurtleff v. Boston, the justices unanimously decided that the City of Boston’s refusal to fly Camp Constitution’s “Christian flag” was a violation of the First Amendment. Boston denied the request because it believed flying a religious flag at City Hall could violate the Establishment Clause, a claim that the justices rejected. In his concurrence, Justice Neil Gorsuch wrote that although the city got the Establishment Clause “so wrong … some of the blame belongs here and traces back to Lemon v. Kurtzman” since “[it]sought to devise a one-size-fits-all test.” The “Lemon test” was a judge-created standard used to determine if a law or government activity constituted entanglement with religion. This standard persisted for decades, even though it failed to provide a reliable metric by which judges could evaluate Establishment Clause cases.
A month after the ruling in Shurtleff, the court retired the Lemon test in Kennedy v. Bremerton School District. This case was centered around Joseph Kennedy, a football coach who regularly prayed in the middle of the field after games. The district claimed that a “reasonable observer” could misconstrue his actions as the school sponsoring religion and subsequently put him on paid leave and allowed his contract to expire.
Like the other cases, the justices were not persuaded, recognizing that the school’s actions betrayed an erroneous understanding of the First Amendment. Echoing his sentiments in Shurtleff, Gorsuch wrote in the majority opinion that the court “long ago abandoned Lemon” and that, in its place, judges would now interpret the Establishment Clause with “reference to historical practices and understandings.” This means that courts are no longer encumbered by the Lemon test, a significant stumbling block that prevented courts from adjudicating Establishment Clause cases fairly and consistently under the law.
The government ought not to show preference for any faith, but it should also not disadvantage individuals based on religious identity. Unfortunately, this is exactly what happened: The government warped the First Amendment so severely that it turned what was intended to be the protection of a fundamental right into a license to discriminate. To that end, this trio of rulings, far from “regressive decision-making,” promoted equality by liberating the First Amendment’s religious liberty protections. This is good for everyone.
Former Deputy Director of National Intelligence for Donald Trump, Kash Patel, laid bare the FBI’s invasive and unnecessary raid of the former president at Mar-a-Lago on August 8. Kash Patel appeared on “Life, Liberty & Levin” on Sunday night and exposed the “fake news mafia” for its fictional narrative.
“People say, look, he issued orders, a lot of orders, declassifying information before he left office. Do you know anything about this?” Levin asked.
“As a former Deputy Director of National Intelligence, I know how this system works,” Patel responded. “The president is the sole and universal arbiter and classification authority in the United States of America. If he says a document is declassified, or a set of them, that is it, there is no written material required. That is a fiction being created by the fake news and the radical left.”
“In October of 2020, President Trump put out for the world to see a sweeping declassification order and he did it via social media,” Patel points out. “Every single Russiagate doc, every single Hillarygate doc, every one, those are his words. That is the precedent that the president of the United States is allowed to operate under. And then in December and January, on the way out, I witnessed him declassify whole sets of documents. So it is not incumbent upon President Trump and his lawyers and he as a target of this investigation to show that he did, in fact, declassify them. It’s up to the government who has the burden of proof, who are trying to deprive a man of his liberty, to show that no such order was, in fact, given.”
“They know they can’t. So what happens?” he continued. “The fake news mafia comes in and says, ‘Oh, but there was no protocols followed.’ Mark, you know, when they’re arguing protocols and procedure, it is because they lost the factual argument and the truth. And now they are trying to hide behind this magistrate judge who is going to supposedly play this game of redactions. We saw it in Russiagate. When I was the Deputy DNI, we lifted all those redactions from the Russiagate docs and what did we see, Mark? Corruption, FBI and DoJ corruption and breaking of the law. That is the same game they are going to play here and the fake news media is going to attempt to applaud them for their farce in terms of their transparency. We cannot allow them to do that. The President declassified documents, the government has failed to show that that did not occur, protocol do not apply to the president of United States when he is declassifying documents.”
“And let me underscore that point,” Levin added. “The Constitution of the United States, the first sentence, Article Two, Section One, the President is the executive branch. That’s why everybody agrees he can declassify and classify as much as he wants, and he can do it right out the door. The Espionage Act in this sense simply does not apply to a former president. It does not apply to the president of the United States. It was passed in originally in 1917, it was pushed by Woodrow Wilson to use against his enemies, people who opposed World War I, it was never ever intended to apply to a president. Let me ask you this, Kash Patel. Barack Obama, George W. Bush, Clinton — Bill Clinton, Vice President Gore, Vice President Biden, Vice President Cheney, do we know if any of them secreted any documents, took any documents with them to their homes, classified or otherwise? Do we know?”
“I know for a fact that President Biden has classified access at one of his homes, so those such documents exist there, and they should as for former president the of the United States and that law and that rule should apply equally, but the Government Services Administration is responsible for packaging and parceling those documents,” Patel said. “And you bring up a great point. They were the ones who moved the documents to Mar-a-Lago. They’re the ones who now admitted they mistakenly moved boxes. It’s not like President Trump — even if they get past the declassification part, or a ruse, I should say, it’s not like President Trump put them in a backpack and moved them down there and said, ‘Nothing to see here, I want to illegally distribute these documents.’ The law should be applied, there should not be a two-tiered system of justice. Clinton, Obama, Bush and Trump as former presidents must be treated equally when it comes to classified information.”
“I think it’s very interesting that not a single former president or vice president have opened their mouths, because I suspect they have taken documents with them, whatever it’s in violation, quote/unquote, of one law or another,” Levin noted. “This entire event was completely unnecessary and it’s just more of an effort to try to trap and drag down Donald Trump.”
Liberty International News 