Category Archives: Fifth Amendment

Summary

Senate vote to change filibuster rule fails. 48 Senate Democrats voted to change the rules of the Senate tonight in this one instance for this one piece of legislation on voting rights. There were 52 votes in favor of preserving the rules. President Biden today delivered the longest televised presidential press conference on record. He answered every question fully and directly.

LAWRENCE O`DONNELL, MSNBC HOST: Good evening, Rachel. And you know --

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O`DONNELL: -- rumor. You didn`t have to deny the rumor that wasn`t there - -

RACHEL MADDOW, MSNBC HOST, "TRMS": It`s just weird to have two people who look like they`re in the same weird place in split screen. Like it looked like it was a fake thing. It`s not a fake thing. It`s a real thing.

O`DONNELL: I believe you. We`ve got a live situation on the Senate floor now, Rachel, that we might be cutting to during our hour.

You know, I have one ear on the Senate floor during your hour, and you missed because you were working and I recommend it to you, the speech of Jeff Merkley`s lifetime. And he`s not, you know, stylistically the most compelling speaker on the Senate floor. But he delivered the single most thorough, historical analysis the 60-vote threshold rule, the cloture vote so-called, in the Senate that has ever been delivered on that floor.

And there were some great speeches today with a lot of important historical references including from Angus King pointing out that Hamilton and Madison warned us against any kind of supermajority voting. But, boy, Jeff Merkley, who is the authority on this, the Democrats have deferred to him on it all the way through, he was really -- it`s a masterful, I don`t know, 15 minutes or so that takes you through everything you`d ever want to know about it, and really compelling style.

MADDOW: You should just do late-night coverage. You can have my re-air hour and you should just play it. I hereby give you the baton. Go on.

O`DONNELL: So let me get this straight. So then I would have to come back to work at midnight to -- yeah.

Okay. I`m going to think about that. And I don`t want anyone to worry. The re-air`s going to be there. Don`t worry. The Rachel re-air --

MADDOW: When you address the rumors it`s just like you`re confirming them.

O`DONNELL: Yeah, yeah. Okay. Good point. Thank you, Rachel.

MADDOW: Thanks, Lawrence. Thank you.

O`DONNELL: Thank you.

Denied. That is the last word in the first sentence of today`s Supreme Court decision, and it is the last word on Donald Trump`s unprecedented -- the court called it unprecedented attempt to overrule the current president of the United States, Joe Biden, and block the national archives from handing over all of the records and documents of the Trump presidency that the January 6th committee has demanded.

Donald Trump and his lawyers did not have to read beyond the first sentence of the Supreme Court`s very short decision today to know that the Trump dream of a total cover-up has died. The unsigned order by the court notes that only Justice Clarence Thomas disagrees with the court`s decision. All three of the judges appointed to the court by Donald Trump joined in crushing the Trump cover-up dream today.

The first sentence says, quote: The application for stay of mandate and injunction pending review presented to the chief justice and by him referred to the court is denied. The Supreme Court said that Donald Trump`s assertion of executive privilege was unprecedented coming from a former president in a case like this, but the court said that Trump`s request would have been denied even if he were still president.

Quote: Because the court of appeals concluded that president Trump`s claims would have failed even if he were the incumbent, his status as a former president necessarily made no difference to the court`s decision.

[22:05:03]

Harvard`s constitutional law professor Laurence Tribe offered his scholarly opinion of the court`s decision today saying, "This is huge."

Tonight, the January 6th committee released this statement. Quote: the Supreme Court`s action tonight is a victory for the rule of law and American democracy. The Select Committee has already begun to receive records that the former president had hoped to keep hidden, and we look forward to additional productions regarding this important information. Our work goes forward to uncover all the facts about the violence of January 6th and its causes. We will not be deterred in our effort to get answers for the American people, make legislative recommendations to strengthen our democracy, and help ensure nothing like that day ever happens again.

And leading off our discussion tonight is Neal Katyal, law professor at Georgetown University and most importantly a former acting U.S. solicitor general who has practiced before the United States Supreme Court repeatedly. He is an MSNBC legal analyst.

Neal, I give you the floor in your reaction to the court.

NEAL KATYAL, MSNBC LEGAL ANALYST: Well, Lawrence, I don`t think I`ve seen this much excitement about a late-night literary release since the final "Harry Potter" book came out.

And why is everyone so excited? Because it`s a dark time in our country. People are worried about voting being under assault and rules and laws more generally, and here we`ve got at least for this moment, the rule of law coming back and in a really profound way.

You know, I was on your show last night. I told you to predict this result, that the Supreme Court wasn`t going to hear this executive privilege case. And lo and behold, that`s exactly what happened. They denied Donald Trump`s claim 8-1.

So what`s the case about? Executive privilege is this idea -- it`s a good idea. It`s the idea that presidents need a zone of secrecy around their decision-making like foreign affairs or things like that. You don`t want treaty negotiations to spill out into open court.

What it`s not about is plotting a coup and overthrow of American democracy. Trump tried to invoke it for that reason, and his claim was a loser from the start. The trial court rejected it right away. The circuit court, our nation`s second highest court, took nine days to write a 68-page opinion blowing it out of the water.

And now, today, the U.S. Supreme Court, which is a quite conservative Supreme Court to put it mildly, but totally threw out Trump`s claims.

O`DONNELL: Certainly, the judiciary at the Supreme Court level has become overpoliticized in many people`s minds, but one thing worth noting here is that the Appeals Court opinion that the Supreme Court accepted today in full was written by three judges who were appointed by Democratic presidents. Two were appointed by President Obama, one was appointed by President Biden.

And this Supreme Court with three Trump appointees on it, six appointees from Republican presidents, they accepted with only the exception of Clarence Thomas, they accepted all of the reasoning of those three judges appointed by Democratic presidents.

KATYAL: Exactly, Lawrence. And that`s the rule of law. It`s not supposed to be the way Donald Trump thought about it, Trump judges and Obama judges. They`re just federal judges. And I want to commend here judges but also the lawyers involved in this for the January 6th committee because everyone in this case understood that Donald Trump has one signature move, which is delay.

And they litigated this thing and decided this thing in the opposite of the way all the other Trump stuff has been done. I mean, this case was actually filed on my mom`s birthday, October 18th, three months and one day ago. And they went through all three layers of our court system. And the judges all ruled really quickly because they understand there`s a need to finally get at the truth and Trump`s been evading that for so, so long.

O`DONNELL: What does it mean for Steve Bannon, Mark Meadows, and everyone else in the Trump team who are trying to evade the committee`s subpoenas?

KATYAL: I think the technical legal term is deep doo-doo, Lawrence. It`s a real problem for them.

So, remember that Steve Bannon has been indicted already for contempt for not giving these answers to Congress. So he`s facing criminal charges. Mark Meadows is on his way for the same thing. Both of their defenses to contempt is executive privilege. And the Supreme Court today blew that out of the water.

So that means that these two individuals really do have to talk to the investigators in Congress. But also it more significantly means that Trump`s signature move, which is not just to hide these documents but all these people from testifying on live televised hearings in Congress, he was going to invoke executive privilege for all that. That`s now decimated by the Supreme Court`s ruling.

[22:10:04]

So it`s going to be very hard for all these folks, not just Bannon and Meadows but Giuliani and Eastman and the whole cast of characters to avoid having to testify. They can try other arguments like Fifth Amendment and so on. But today is a real nail in the coffin for that.

O`DONNELL: And so we also now know for a fact with the committee staff already tonight in possession of some of these documents, more of them coming tomorrow, and they will be coming by the barrelful constantly now from the archives, that when these hearings do go public on television, when the committee goes public on television with hearings, we will be hearing readings from these documents, from memos, from e-mails, from possible texts from government phones, all sorts of information that that committee does not yet know but will be discovering over the next several days and weeks.

KATYAL: Yes, Lawrence. I agree with you. But there`s one asterisk.

So remember, Trump`s move is delay. And what I think he and his minions will do is file further lawsuits invoking executive privilege once again saying, well, these documents are different, this testimony is different and the like. All of that`s going to fail because the Supreme Court today was resounding.

And just to give our viewers some sense of this -- I mean, if you`re a former president, to have your case not heard by the Supreme Court on an executive power issue, it`s virtually unthinkable. It`s almost automatic the Supreme Court`s going to hear your case and likely rule for you.

So it`s kind of like you`ve got to try really hard. It`s kind of like if you`re a Democratic candidate in Chicago running for mayor and you lose to a Republican. It`s possible to lose, but you`ve really got to work at it.

Here Donald Trump worked at it. He made such bogus claims about executive privilege it led the Supreme Court to do what it did. And that`s going to make it virtually impossible for Donald Trump and his team of insurrectionists to try and block the testimony and documents from coming out in live televised hearings.

O`DONNELL: Neal Katyal, thank you very much for joining us on this historic night in this case. Thank you very much.

And coming up, more defendant Trump news. The New York attorney general in a court filing says that Donald Trump has engaged in fraudulent or misleading practices.

Tim O`Brien and Daniel Goldman will be joining us next, and we`re keeping an eye on the Senate floor for you on what`s happening there tonight on voting rights.

We`ll be right back.

(COMMERCIAL BREAK)

[22:16:43]

SEN. CHUCK SCHUMER (D-NY): The most fundamental wellspring of this democracy, more important than a rule in this chamber. Let me --

O`DONNELL: That is a live shot of the Senate floor. Majority leader Chuck Schumer is going to move any moment now for a vote on changing the rules in the Senate to eliminate the 60-vote threshold for holding a vote on voting rights legislation. This would be a one-time change of the Senate rules just for this one piece of legislation. We`re going to monitor that situation on the Senate floor as it develops, especially when it gets to that dramatic moment of calling for that vote. We will be keeping an eye on the Senate floor.

Also today, in a 115-page legal brief filed in court in response to Donald Trump`s attempt to evade a subpoena, a civil subpoena for his testimony in a civil fraud investigation, New York State Attorney General Letitia James said that the Trump company has engaged in "fraudulent or misleading," those were her words, practices in their business.

The attorney general`s filing says, quote, "in light of the pervasive and repeated nature of the misstatements and omissions, it appears that the valuations in the statements were generally inflated as part of a pattern to suggest that Mr. Trump`s net worth was higher than it would otherwise -- would have appeared." The attorney general is seeking to enforce subpoenas against Donald Trump, Donald Trump Jr. And Ivanka Trump for their testimony. Eric Trump has already given an under oath deposition in the case in which he refused to answer questions, citing his fifth amendment rights, over 500 times.

In the filing released close to midnight last night the attorney general says, quote: Since 2017, Donald Trump Jr. has had authority over numerous financial statements containing misleading asset valuations. Donald Trump Jr. should be compelled to testify before the office of the attorney general.

Until January 2017, Ms. Ivanka Trump was a primary contact for the Trump Organization`s largest lender, Deutsche Bank. In connection with this work, Ms. Trump caused misleading financial statements to be submitted to Deutsche Bank and the federal government. Ivanka Trump should be compelled to testify before the Office of the Attorney General.

In a press release, the attorney general`s office noted that they have, quote, not yet reached a final decision regarding whether this evidence merits legal action. The Trump organization, which is currently under indictment in New York City because of its practices, released a statement in response to the attorney general`s filing saying, in part, her allegations are baseless and will be vigorously defended.

Joining us now, Daniel Goldman, former House majority counsel during the first impeachment trial of Donald Trump. He`s also a former assistant U.S. attorney for the Southern district of New York and an MSNBC legal contributor.

Also with us, Tim O`Brien, senior columnist for "Bloomberg Opinion". He is the author of the book "Trump Nation."

Daniel Goldman, let me begin with you and what you read in this -- the attorney general`s filing.

[22:20:01]

DANIEL GOLDMAN, MSNBC LEGAL CONTRIBUTOR: Well, it`s quite a filing, Lawrence. Somewhat unexpected I think at this stage of the civil investigation in particular because of the parallel criminal investigation that is going on. Incredible details about all the various ways that the attorney investigation that is going on. Incredible details about all the various ways that the attorney general`s office has uncovered that Donald Trump, the Trump Organization and then his children after he took over as president misstated, overinflated values of their properties in order to get financial benefits in the way of loans, insurance and tax deductions.

It is quite an extraordinary recitation of those facts, some of which are pretty alarming, some of which are somewhat humorous, including the fact that Donald Trump represented that his apartment in New York is worth $327 million, which I believe would be the most expensive residence in the world. Allen Weisselberg of course said that is an overstatement by about $200 million.

But putting aside some of the humor in some of these overstatements, it`s serious allegations of misstatements. There are a number of questions here, and, you know, they run the gamut, including whether this was wise to do in light of a criminal investigation that is ongoing. Whether it actually responds to Donald Trump`s allegations of sort of political motivations by the attorney general. Whether these depositions should go forward in light of the ongoing criminal investigation.

And then also, what impact that will have on the criminal investigation when they are in front of an active grand jury for much of the same conduct and whether this will allow witnesses to sort of -- to better prepare themselves because they know a lot of the facts.

So, there`s some inside baseball here, Lawrence, but I think the top line is that Donald Trump and the Trump Organization grossly misstated the valuations of numerous properties for their financial benefit.

O`DONNELL: And, Tim O`Brien, you have been studying and writing about Trump businesses for years. You wrote the book that Donald Trump sued you for, where you basically said a version of what the attorney general is now saying, that Donald Trump was wildly overstating his wealth. You, of course, won that lawsuit against Donald Trump.

This reading for you of the attorney general`s 115 pages today had to be quite an experience after the book pages you`ve produced on the same subject.

TIM O`BRIEN, SENIOR COLUMNIST, BLOOMBERG OPINION: It was Groundhog Day, Lawrence, as it always is with Donald Trump. It`s just a new version of the same old grift.

His children are doing what he did. He was doing what his father did. This kind of behavior is almost in the Trump family genes.

The issue is whether or not the New York attorney general can prove intent to commit a fraud here and that they knew what they were doing was wrong and they went ahead and did it anyway. That`s a high bar.

There`s no doubt I think that there was a grift going on here. There is no doubt that the Trumps routinely inflated and deflated the value of their assets to court the media, to appease Trump`s own ego, to get bank loans and to run circles around tax collectors. I think there`s ample basis in the evidence they`ve already collected in the New York attorney general`s office to proceed with this.

I think as Dan has pointed out I think there`s a number of strategic issues that get raised by why they`ve handled it this way. Undoubtedly, I think Letitia James, the New York state attorney general, is frustrated with the Trumps thumbing their nose at her subpoenas and requests for depositions. There`s a lot of bad blood among all the parties in here.

But the fact is she has started to line her ducks up. I think some of the things in this case or in this filing that were overlooked or got less scrutiny was the fact that Trump himself, there`s evidence in that filing of Trump himself signing off on some of the paperwork that involved assets with inflated valuations.

In other words, Trump was a participant. And he signed off on some of the things they`re investigating. So he has direct -- he`s got a direct connection here. In theory, this can go directly to Donald Trump.

But they`ve got a lot more evidence to collect and a lot more proof they have to put on the table. Another thing that`s in this document that I think are important is they seem to believe the Trump Organization has not been forthcoming with all the evidentiary requests they`ve made about records pertaining to Trump himself and they want more.

[22:25:07]

So I think it`s a robust, damning document, but we still have to see whether or not it rises to the level of fraud charges that they can prosecute successfully in a courtroom.

O`DONNELL: Tim O`Brien and Daniel Goldman, thank you for joining us on these important developments tonight. Really appreciate it.

GOLDMAN: Thank you.

O`BRIEN: Thank you, Lawrence.

O`DONNELL: And when we come back, we`ll be covering the breaking news on the Senate floor tonight in the voting rights crusade there and the upcoming vote on changing the Senate rule. That vote might occur within this hour.

We`ll be right back.

(COMMERCIAL BREAK)

[22:30:51]

(BEGIN VIDEO CLIP)

SENATOR CHUCK SCHUMER (D-NY), SENATE MAJORITY LEADER: -- that for this message from the House with respect to HR 5746, the only debate in order during consideration of the message beyond the question of adoption of the motion to concur in the amendment of the House. Further, that no amendments, motions or points of order be in order and that any appeals be determined without debate.

SEN. PATRICK LEAHY (D-VT), U.S. SENATE PRESIDENT PRO TEMPORE: Following the rules of the Senate, the point of order is not sustained as it is a compound motion that would require consent.

SCHUMER: Mr. President, I appeal the ruling of the chair.

LEAHY: The question is, so the ruling on the chair stands, is the decision of the Senate.

SCHUMER: I ask for the yeas and nays.

LEAHY: Is there a sufficient second? There appears to be. And there is. Clerk will call the roll.

UNIDENTIFIED MALE: Ms. Baldwin.

SENATOR TAMMY BALDWIN (D-WI): Yea.

UNIDENTIFIED MALE: Mr. Barrasso.

SENATOR JOHN BARRASSO (R-WY): Aye.

UNIDENTIFIED MALE: Mr. Bennett.

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Transcript: The Last Word with Lawrence O'Donnell, 1/19/22 - MSNBC

LONDON, Ky. (LEX 18) A man who has now been convicted twice in connection with a shooting death was sentenced Tuesday to 39-and-a-half years in prison.

Patrick Baker was first convicted in 2017 in state court of reckless homicide in the death of Donald Mills, Jr. He was sentenced to 19 years in prison, but then pardoned in 2019 by former Gov. Matt Bevin.

Federal District Court Judge Claria Horn Boom imposed a total sentence of 42 years in prison, and then gave Baker credit for 30 months he served in the related state conviction.

Authorities brought a new federal charge against Baker of murder during a drug trafficking offense, and Baker was convicted last August.

Federal District Court Judge Claria Horn Boom handed down the sentence on Tuesday in a London, Ky., courtroom.

When Bevin pardoned Baker in 2019, he wrote that the evidence against Baker in the case had been "sketchy at best."

Baker's attorneys filed a motion in November to attempt to prevent a sentence longer than 19 years, citing the federal case against him violated the "double jeopardy" clause of the Fifth Amendment, according to court records. In the motion, attorneys argued that any sentence greater than the 19 years he was given on his state court case would be "vindictive."

Boom denied Baker's motion on January 14.

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Patrick Baker convicted for 2017 shooting, 39-and-a-half years sentence - LEX18 Lexington KY News

The days of country over party are a relic of the past

Do you remember when President Obama left a letter of congratulations and encouragement for the incoming president, Donald Trump? Do you remember when it was likely that Vice President Al Gore had won the 2000 presidential election but he nevertheless conceded to George W. Bush to avoid a constitutional crisis? Do you remember when Democratic presidential candidate Hillary Clinton voluntarily testified before Congress for 11 grueling hours regarding the Benghazi investigation?

Kimberly Atkins Stohr is 100 percent correct in her Jan. 14 Opinion column, When it comes to subpoenas, Congress must use its power or lose it. The days of country over party and doing the right thing are a relic of the past, at least for now. A prime example is that former president Trump and his Republican colleagues have made it the norm to refuse to voluntarily appear before Congress and voluntarily produce documents.

The House committee investigating the Jan. 6, 2021, insurrection issued a fresh set of subpoenas Tuesday, including for Trump aide Rudy Giuliani. Congress must use its subpoena powers and the courts to the full extent to enforce its constitutional authority to pursue this investigation or risk permanently losing this fundamental constitutional check and balance. Given the nations dangerous shift toward authoritarianism, this is a particularly important step right now.

Gil Hoy

Brookline

There has to be a penalty to hold over those who refuse to testify

Kimberly Atkins Stohr warns, quite prudently, that we can lose congressional subpoena power if we dont use it. But she omitted one fundamental from her otherwise compelling column: namely, that Congress seems to have forgotten the literal meaning of the Latin sub poena: under penalty. That is, an individual summoned to testify at a hearing must do so under penalty of noncompliance. Until Congress can distinguish proactively between the power of a subpoena and a voluntary appearance, the discovery process for investigations of this sort will continue to stagnate.

Ira Braus

Pembroke

Hillary Clinton set the example for showing up

I am disgusted by the Republican toadies of former president Donald Trump, including aides and members of Congress (most of them male) who are refusing to testify before Congress. Its interesting that, as Kimberly Atkins Stohr notes, Hillary Clinton, then secretary of state, sat through nearly two years of political harassment by Republicans, and never once refused to testify. She has more mettle than all of these others.

Paul Miles-Matthias

Seekonk

House panel can issue an interim report while it keeps searching for truth

The article House panel unsure of pressuring Pence, GOP lawmakers (Page A4, Jan. 17) frames the question of issuing a subpoena to former vice president Mike Pence and others as a binary choice: Hold high-ranking officials accountable, or issue a prompt report. Its feasible to do both: Issue subpoenas and fight for them in court, while issuing an interim report while any legal challenges are being considered.

Further, while its not permitted in a criminal court to use an invocation of the Fifth Amendment as an indication of guilt, the House panel is not a court, and these potential witnesses havent asserted Fifth Amendment protection. Its therefore entirely appropriate to see a refusal to comply with a subpoena as exactly what it is: an attempt to continue the ongoing attacks on our democracy.

Peter Squires

Cambridge

Read more here:
Without subpoena push, Jan. 6 investigation is going nowhere fast - The Boston Globe

Photo: Elizabeth Violet Sanders

When a car in which a Bull Shoals woman was a passenger got pulled over on a minor traffic violation in late-December, she refused to provide any identification based on her claimed status as a sovereign citizen.

Twenty-eight-year-old Elizabeth Violet Sanders appeared during a session of Baxter County Circuit Court Monday.

She entered a not guilty plea to the charges against her and was ordered to reappear Jan. 24.

THE TRAFFIC STOP

When a Baxter County sheriffs deputy stopped the vehicle in which Sanders was a passenger on Dec. 22 in the Midway area, she said as a sovereign citizen she was not required to provide any identifying information to the deputy.

Members of the sovereign citizen (SC) movement believe in a somewhat convoluted, alternate system of law.

When she was asked to get out of the vehicle, she refused, again saying that would violate her rights as a sovereign citizen.

As she was being assisted from the vehicle she is alleged to have kicked one of the deputies involved in her arrest.

After she was brought to the Baxter County Detention Center, she was processed through the Arkansas Crime Information Center (ACIC) database and identified.

It was determined Sanders had an active arrest warrant at the time.

METHAMPHETAMINE FOUND

During the process of determining Sanders identity, the booking officer at the jail reported a white powder-like substance had been found in the bottom of her bag.

The substance field tested positive for methamphetamine.

As her charges were being read to her, she refused to listen or sign any paperwork.

VEHICLES NOT SUBJECT TO LAWS

One of the beliefs attributed to SC members is that any vehicle they happen to be in is not subject to rules, acts, statutes, or legislation that apply to everyone else.

When involved in a traffic stop, they often claim they are traveling, not driving, and that traveling is a God given right that cannot be infringed on in any way by any agency of government.

Many SC members refuse to buy insurance for their vehicles, do not have a drivers license and wont buy or display license plates.

REFUSE TO PAY TAXES

Some sovereign citizens also refuse to pay taxes. One SC member was reported to have sent in a blank return to the IRS. He claimed that providing the information would violate his Fifth Amendment right not to incriminate himself.

As a broad protest against paying taxes, a majority of courts have ruled that the Fifth Amendment self-incrimination argument does not stand up.

A 1921 Supreme Court case is often cited in cases dealing with refusing to file a tax return on Fifth Amendment grounds.

In that case, Justice Oliver Wendell Holmes wrote that if a defendant truly believed information required on the tax form would be incriminating, the taxpayer should raise that issue on the form, but could not simply refuse to file.

A DIFFERENT TAKE ON THE LAW

The SC movement members often use arguments based on erroneous readings of the law, or laws seemingly plucked from thin air.

They tend to employ a confusing, quasi-legal vocabulary during encounters with law enforcement officers and the courts.

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Woman claiming to be 'sovereign citizen' appears in court - ktlo.com

HOUSTON, Jan. 14, 2022 (GLOBE NEWSWIRE) -- ION Geophysical Corporation (NYSE: IO)

Forbearance and Amendment related to Revolving Credit Agreement, Forbearance Agreement related to Senior Secured Second Priority Notes due 2025

ION announced that it has entered into a Forbearance and Fifth Amendment with PNC Bank, National Association (PNC), under its Revolving Credit and Security Agreement dated August 22, 2014 (as amended, the Credit Agreement), pursuant to which PNC has agreed to waive, through and including February 15, 2022, a cross default that would have occurred under the Credit Agreement as ION has not yet paid the scheduled interest payment due on December 15, 2021, on its 8.00% Senior Secured Second Priority Notes due 2025 (the 2025 Notes) prior to the expiration of the 30-day grace period under the 2025 Notes indenture. In addition, ION also announced that it had entered into agreements with holders of more than 79% of its 2025 Notes to forbear until February 15, 2022 from enforcing their rights and remedies arising as a result of IONs failure to make the December 15, 2021 interest payment due on the 2025 Notes. The forbearances are subject to the terms and conditions of the relevant agreements with PNC and the note holders, which are described in more detail in our current report on Form 8-K filed with the SEC.

ION remains in continuing discussions with PNC and the holders of its 2025 Notes and other indebtedness regarding various strategic alternatives to strengthen its financial position and maximize stakeholder value. These strategic alternatives include, among others, a sale or business combination transaction or sales of assets, any of which may be executed as part of an in-court or out-of-court restructuring process.

Preliminary fourth quarter 2021 revenues of ~$40 million, a 45% increase year-over-year

ION also announced that the Company expects fourth quarter 2021 revenues to be approximately $40 million, an increase of 45% year-over-year. While expected fourth quarter 2021 revenues declined by 10% sequentially, second half fiscal year revenues delivered an increase of approximately 150% over the first half years revenues.

Story continues

Fourth quarter revenues improved year-over-year, consistent with our expectations of momentum building from our growing data library and maritime digitalization strategy, said Chris Usher, IONs President and Chief Executive Officer. Sales of the latest phases of our Brazil 3D reprocessing program, Picanha, illustrate the value clients ascribe to this program which now tops over 150,000 contiguous square kilometers in the Campos and Santos basins. The third and fully underwritten extension of our new 3D program in the North Sea has concluded acquisition for the season. Our traditional BasinSPAN 2D programs continue to demonstrate resilience through sales in Africa and Brazil, despite the pullback in exploration spending. And lastly, our software business continues to expand into new markets. On December 17, 2021, we announced awards for MarlinTM in the areas of simultaneous operations and country-scale port management. Our latest contract is for a five-year deployment of Marlin to optimize offshore logistics in the Asia Pacific region for a supermajor.

About ION

Leveraging innovative technologies, ION delivers powerful data-driven decision-making to offshore energy and maritime operations markets, enabling clients to optimize investments and results through access to our data, software and distinctive analytics. Learn more at iongeo.com.

The information herein contains certain forward-looking statements within the meaning of Section 27A of the Securities Act of 1933 and Section 21E of the Securities Exchange Act of 1934. These forward-looking statements may include information and other statements that are not of historical fact. Actual results may vary materially from those described in these forward-looking statements. All forward-looking statements reflect numerous assumptions and involve a number of risks and uncertainties. These risks and uncertainties include the risks associated with the timing and development of ION Geophysical Corporation's products and services pricing pressure decreased demand changes in oil prices agreements made or adhered to by members of OPEC and other oil producing countries to maintain production levels the COVID-19 pandemic the ultimate benefits of our completed restructuring transactions; political, execution, regulatory, and currency risks; the outcome or changes, if any, of our consideration of various strategic alternatives; and the impact to our liquidity in the current uncertain macroeconomic environment. For additional information regarding these various risks and uncertainties, see our Form 10-K for the year ended December 31, 2020, filed on February 12, 2021, and our Forms 10-Q for the quarters ended March 31, 2021, June 30, 2021, and September 30, 2021, filed on May 6, 2021, August 12, 2021, and November 3, 2021, respectively. Additional risk factors, which could affect actual results, are disclosed by the Company in its filings with the Securities and Exchange Commission (SEC), including its Form 10-K, Form 10-Qs and Form 8-Ks filed during the year. The Company expressly disclaims any obligation to revise or update any forward-looking statements.

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ION announces forbearance and amendment related to its revolving credit agreement, forbearance agreement related to its senior secured second priority...

While the story of phony electoral certificates submitted to Congress by Republican officials in five states as part of a failed attempt to overturn the results of the 2020 presidential election has caught on in a big way over the last week, it isnt new. The phony certificates were submitted nearly a year ago and, as early as March 2, 2021, American Oversight published the documents themselves after obtaining them through the Freedom of Information Act.

Actually, there werent just five states in which, despite Biden having won there, Republican pseudo-electors submitted Electoral College certificates in support of Trump. There were seven. The Republicans in two of those states, however, hedged their bets. The New Mexico certificate was submitted on the understanding that it might later be determined that we are the duly elected and qualified electors (emphasis added). The Pennsylvania certificate was similarly qualified on the understanding that if, as a result of a final non-appealable Court Order or other proceeding prescribed by law, we are ultimately recognized as being the duly elected and qualified Electors (emphasis added).

The submissions from those two states deserve the benefit of the doubt. They can and should be read as contingent, belt-and-suspenders backup plans to make sure that Trump electors were identified in the event, however unlikely, that the courts reversed the election results in their states.

Not so the other five states. The phony Trump electors from each of the other five statesArizona, Georgia, Michigan, Nevada and Wisconsincertified that they were in fact the duly elected and qualified Electors for President and Vice President of the United States of America from their respective states.

Those representations were lies.

Biden, not Trump, had won the elections in each of those states. In each of those states, Bidens victory had been certified by the officials given clear statutory authority to do so. In Michigan, for instance, that authority resides with the governor: the governor shall certify, under the seal of the state, to the United States secretary of state, the names and addresses of the electors of this state chosen as electors of president and vice-president of the United States. In Arizona, the secretary of state is charged with that responsibility. And so on: The officials charged with determining the results of presidential elections in all five states had certified the election results showing that Biden, not Trump, had won their states electoral votes.

In short, the individuals who signed the documents certifying that they were the duly elected and qualified electors from their states were not. Their certificates were fraudulent, full stop. No doubt or ambiguity about it.

The fraudulent scheme did not end with the signatures of the phony electors. Far from it. In each of the five states, the would-be electors transmitted the phony certificates to federal officials as their states electoral votes for President and Vice President. Again, false.

It is astonishing that more than a year after the certification of the 2020 presidential election, public attention has only now begun to focus intensely on these phony GOP state certifications. They are not just deplorable political acts of subversion. They are criminal acts. As laid out by Charlie Sykes over the weekend, the fake certificates are part of a much broader conspiracy by Donald Trump and others to corruptly obstruct, influence or impede the electoral vote count proceedings within the meaning of 18 U.S.C. 1512(c)(2).

But not just that.

The signing and transmission of the phony certificates were also standalone crimes in and of themselves, committed in broad daylight and easily prosecuted.

State and federal law enforcement should have been all over this for almost a year now. Worse, even for those inclined to think better late than never, its still not clear that they are on it now.

Start with state law. As you can imagine, every state in the union has criminal laws prohibiting all forms of election fraud. For present purposes, one example will suffice: In Arizona, a person who knowingly forges or counterfeits returns of an election is guilty of a class 3 felony, the minimum penalty for which is two and a half years in prison.

But the real action here isor should beat the federal level. These phony certifications were not isolated, one-off events. They were highly coordinated. A single glance at the five phony certificates shows that they are nearly identical in format and text, right down to the fonts. The strong implication: Somebody somewhere was running this show.

The involvement of top Trump administration and campaign officials in this effort looks deep and wide. Its the job of the January 6th House committee and (hopefully) the Department of Justice to put together all that information, and presumably journalists will continue to dig into it. But as of now, it sure looks like Mark Meadows, Trumps chief of staff, was right in the middle of election-fraud effort. A text released last month by the January 6th Committee from an unnamed lawmaker (later identified by CNN as Trumps former energy secretary, Rick Perry) to Meadows said:

HEREs an AGRESSIVE STRATEGY: Why can t the states of GA NC PENN and other R controlled state houses declare this is BS (where conflicts and election not called that night) and just send their own electors to vote and have it go to the SCOTUS.

Sound familiar? Meadows seems to be up to his neck in this. Perhaps thats why theres speculation afoot that Meadows may end up asserting his Fifth Amendment rights to avoid testifying.

Assertions of Fifth Amendment rights aside, theres plenty for anyone who coordinated or participated in this fraudulent scheme to worry about.

The biggest federal gun in the arsenal, seditious conspiracy, probably wont work here. That statute uses the phrase by force four times. It was thus perfectly understandable that the Department of Justice recently charged seven members of the Oath Keepers who conspired to forcibly obstruct the peaceful transfer of power on January 6. It is theoretically possible that the phony elector scheme might one day be viewed as simply one piece in a larger conspiracy to storm the Capitolget the phony certificates of electors and use them as a pretext to halt the process by force and intimidationbut right now that seems like a stretch. The phony certificate scheme, in and of itself, employed fraud and deceit, not force.

However, there is one federal criminal statute that appears to cover this situation specifically and squarely. Under 52 U.S.C. 20511, it is a crime punishable by a fine or up to five years in prisonor bothif any person:

knowingly and willfully deprives, defrauds, or attempts to deprive or defraud the residents of a State of a fair and impartially conducted election process, by . . . the procurement, casting, or tabulation of ballots that are known by the person to be materially false, fictitious, or fraudulent under the laws of the State in which the election is held. [Emphasis added.]

There is some debate in the academic community about whether the votes of presidential electors are ballots as that term is used in this statute. The reference to ballots may be intended to refer only to the popular vote, not the votes cast by the electors, the argument goes.

But the statute doesnt say that. It just says ballots. The common understanding is that a ballot is simply the mechanism by which votes are cast. Moreover, the Constitution explicitly and repeatedly refers to the votes of presidential electors as ballots. Heres the applicable language from the Twelfth Amendment:

The Electors shall meet in their respective states and vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the same state with themselves; they shall name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice-President. [Emphasis added.]

Once the issue of whether presidential electors cast their votes by ballots is resolvedif there really is such an issuethe rest seems easy:

Other federal criminal statutes also may be applicable.

The broadest federal statute that may apply is 18 U.S.C. 371Conspiracy to commit offense or to defraud United States. That statute says that if two or more persons conspire to defraud the United States or any agency thereof in any manner or for any purpose, and perform any act to effect the object of that conspiracy, each person shall be fined or imprisoned for not more than five years, or both. As Harvard professor Laurence Tribe noted in a Boston Globe op-ed last week, under the Supreme Court ruling in Tanner v. United States, Section 371 applies to any conspiracy for the purpose of impairing, obstructing or defeating the lawful function of any department of Government. Conspiring to file fraudulent election returns in order to overturn a presidential election, and the actual transmittal of those fraudulent documents to the federal government, easily meets that standard.

It is also a crime under 18 U.S.C. 1001, punishable by up to five years of imprisonment, to file any false, fictitious, or fraudulent statement or representation in any matter within the jurisdiction of the federal government, or to use a false writing or document knowing the same to contain any materially false, fictitious, or fraudulent information.

And specifically regarding elections, it is crime under 52 U.S.C. 10307 for any person acting under color of law to willfully fail or refuse to tabulate, count, and report the vote of any person qualified to vote. This would seem to apply to any state officials who, acting under color of lawthat is, acting in some official capacitywere involved in transmitting the phony electoral certificates to the federal government. By purporting to certify the election of a person who was not duly elected, such officials would be willfully seeking to disenfranchise millions of individuals who were qualified to and did vote.

If federal prosecutors are already investigating these crimes, they have done a bang-up job of keeping it secret. It has been a year since the phony certificates came to light, and the criminal case to be made is not complicated.

While it may be understandable that the Department of Justice needs to conduct a sweeping, time-consuming investigation to fully comprehend the depth and breadth of the larger conspiracy to overturn the 2020 election, no complex investigation is needed to prosecute the specific, standalone crimes committed by those who signed and transmitted the fraudulent elector certificates. Its not as if we dont know the identity of the culpritsthe signers of the fraudulent certificates are all identified on the face of the documents. The individuals who transmitted them to the federal government signed their names to the transmittal memoranda. Its all right there, wrapped up in a nice, tidy package that can be cut and pasted straight into an indictment.

Its as if the feds had perfect audio and video recordings of a heist, plus signed confessions.

So why the slow walk?

Robust prosecution of these cases is vital. As I wrote earlier this month, between now and the 2024 election, the battle for democracy will be won or lost in the states. Nothing in either of the voting rights bills currently pending before Congress would inhibit partisan state officials, acting under color of law, from attempting to overturn popular elections in their states.

What would?

Criminal prosecutions.

Read the original post:
Its Long Past Time to Prosecute Phony GOP Electors - The Bulwark

RELIST WATCH ByJohn Elwood on Jan 12, 2022 at 3:35 pm

The Relist Watch column examines cert petitions that the Supreme Court has relisted for its upcoming conference. A short explanation of relists is available here.

At this Fridays conference, the Supreme Court will vote to grant the last cases that will be argued this term (barring expedited briefing on some emergency matter). The court has an unusual number of relists this week, including an unusual number of cases that would be blockbusters if the court decides to take them. There are so many relists 17 cases, and thats if you only count a cluster of 33 (!) Oklahoma cases as a single case that I have to be extremely summary. Its like the long conference in January.

I could reach the limit of our Twitter-shortened attention spans just talking about relists that explicitly ask the Supreme Court to overrule its precedents. There are a pair of cases asking the court to invalidate Harvards and the University of North Carolinas affirmative action programs, and in the process overrule Grutter v. Bollinger, which upheld diversity-based affirmative action programs. The cases are Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, 20-1199, and Students for Fair Admissions, Inc. v. University of North Carolina, 21-707. The court earlier asked for the U.S. solicitor general to weigh in on the Harvard case; she recommended that the court deny review, saying that the challengers seek[] to relitigate case-specific factual disputes that both lower courts resolved against them and that the case would be a poor vehicle for reconsidering Grutter. Well see if the court is persuaded.

Then theres 303 Creative LLC v. Elenis, 21-476, presenting a recurring question the court first confronted in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, about whether an artist (here, a website designer) can be compelled to perform work celebrating a same-sex wedding that is inconsistent with their sincerely held religious beliefs. The case also presents the question whether a public-accommodation law that authorizes secular but not religious exemptions is generally applicable underEmployment Division v. Smith, and if so, whether the Supreme Court should overruleSmith. (The court faced but did not decide the issue of whether to overrule Smith in last terms Fulton v. City of Philadelphia, Pennsylvania.)

Two terms ago, the Supreme Court held by a 5-4 vote in McGirt v. Oklahoma that Congress had not clearly disestablished a Creek Nation reservation covering much of eastern Oklahoma, and thus the area remained Native American territory for the purposes of a federal criminal law, eliminating the states ability to prosecute crimes there. With the death of Justice Ruth Bader Ginsburg, who provided a necessary vote to the McGirt majority, and the confirmation of her replacement, Justice Amy Coney Barrett, the state is now asking the court to reverse itself. The state has 33 petitions pending in criminal cases asking that McGirt be overruled so many petitions they have two petitions just involving respondents named Jones, and another two with respondents named Martin. The state has designated Oklahoma v. Castro-Huerta, 21-429, the lead petition, but if the court decides to grant review, it could choose a different vehicle. If the court grants review, it may want to ask the parties to brief the additional question whether Oklahoma was required to file an environmental impact statement in view of the sheer tonnage of paper filings.

Moving on to potential blockbusters that dont explicitly call on the court to overrule precedent. Sackett v. Environmental Protection Agency, 21-454, is a long-running Clean Water Act dispute that has already been the subject of one major Supreme Court decision. The Sacketts are a husband and wife who are challenging the governments assertion of CWA authority over their home. They invoke Rapanos v. United States in which a splintered majority of the Supreme Court held that theCWA does not regulate all wetlands. Justice Antonin Scalia, writing for a four-justice plurality, concluded that only wetlands that have a continuous surface water connection to regulated waters may themselves be regulated under the act. Justice Anthony Kennedy concurred only in the judgment, applying a more fact-intensive (critics would say vague) significant nexus test. The Sacketts argue that the court should adopt the pluralitys narrower test as the governing standard.

There are also four cases challenging the constitutionality of the Indian Child Welfare Act of 1978. Congress passed ICWA to respond to concerns that state child-welfare practices were causing large numbers of Native American children to be inappropriately removed from their families and tribes and placed with non-Native foster families or adoptive parents. ICWA established minimum federal standards for most child-custody proceedings involving Native American children. The en banc U.S. Court of Appeals for the 5th Circuitstruck down some provisions of ICWA as unconstitutional. According to the 5th Circuit, some provisions violate the 10th Amendment because they impermissibly commandeer the states. Those provisions, it concluded, include a requirement that state agencies bear the cost and burden of providing expert testimony to support placing Native children in foster care, a requirement that state agencies provide remedial services to Native families, and a requirement that state agencies maintain certain child-placement records.

The 5th Circuit also affirmed the district courts judgment that ICWAs preference for adoptive placement with other Indian families and Indian foster home[s] violates the equal-protection component of the Fifth Amendment. The 5th Circuit upheld other provisions of the act. The court has relisted a total of four petitions, two filed by the federal government and a group of Native American tribes seeking to revisit 5th Circuit holdings invalidating provisions, and two filed by the state of Texas and private challengers seeking to overturn parts of the 5th Circuit decision upholding other ICWA provisions. The petitions are Haaland v. Brackeen, 21-376, Cherokee Nation v. Brackeen, 21-377, Texas v. Haaland, 21-378, and Brackeen v. Haaland, 21-380.

In January 2019, the Supreme Court denied apetition for certiorarifiled by a football coach at a public high school in Washington state who claimed that he lost his job because he prayed on the field after games. At that time, four justices Samuel Alito, Clarence Thomas, Neil Gorsuch, and Brett Kavanaugh notedthat they concurred in the decision to deny review because the factual record was too undeveloped to grant preliminary relief to the coach, emphasizing that they did not necessarily agree with the decision (much less the opinion) below. Since then, the district court and U.S. Court of Appeals for the 9th Circuit have again rejected the coachs claims. InKennedy v. Bremerton School District, 21-418, Coach Kennedy is back, asking the justices to review whether his conduct is private and protected by the First Amendment.

California has enacted a number of laws over the years that regulate the sale of items ranging from foie gras to fuel based on the method of production that the state believes is too carbon-intensive. Challengers regularly argue that such laws violate so-called dormant commerce clause principles by discriminating against (or seeking to alter) disfavored out-of-state production methods. A number of challenges to such laws have reached the court over the years, but National Pork Producers Council v. Ross, 21-468, is the first one since 2014 (the foie gras case) that I can recall being relisted. California bans the sale of pork in the state unless the sow from which it was derived was housed with 24 square feet of space and in conditions that allow the sow to turn around freely without touching her enclosure. Challengers argue that almost no farms satisfy those standards, and farmers almost universally keep sows in individual pens that do not satisfy those standards during the period between weaning and confirmation of pregnancy, for animal health and business reasons. Challengers argue that the law is impermissibly extraterritorial because virtually all the pork consumed in California is raised outside the state.

With that, we have to go into full Relist Watch Select mode if we are going to have any hope of ever getting through all these relists. The remaining relists raise the following issues. Each of them is fascinating on its own terms; I give them brief treatment only because there is such an embarrassment of riches this week.

Thats all for this week. Until next time, stay safe!

Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, 20-1199Issues: (1) Whether the Supreme Court should overruleGrutter v. Bollingerand hold that institutions of higher education cannot use race as a factor in admissions; and (2) whether Harvard College is violatingTitle VIof the Civil Rights Act by penalizing Asian-American applicants, engaging in racial balancing, overemphasizing race and rejecting workable race-neutral alternatives.CVSG: 12/8/2021(relisted after the Jan. 7 conference)

Students for Fair Admissions, Inc. v. University of North Carolina, 21-707Issues: (1) Whether the Supreme Court should overruleGrutter v. Bollingerand hold that institutions of higher education cannot use race as a factor in admissions; and (2) whether a university can reject a race-neutral alternative because it would change the composition of the student body, without proving that the alternative would cause a dramatic sacrifice in academic quality or the educational benefits of overall student-body diversity.(relisted after the Jan. 7 conference)

Wisconsin v. Jensen, 21-210Issues: (1) Whether a persons statement expressing fear about a possible future crime is testimonial under the Sixth Amendments confrontation clause; and (2) whether, when a person reports ongoing psychological domestic abuse and expresses fear about future physical harm, the persons statement aimed at ending an ongoing emergency is non-testimonial.(relisted after the Jan. 7 conference)

George v. McDonough, 21-234Issue: Whether, when the Department of Veterans Affairs denies a veterans claim for benefits in reliance on an agency interpretation that is later deemed invalid under the plain text of the statutory provisions in effect at the time of the denial, that is the kind of clear and unmistakable error that the veteran may invoke to challenge VAs decision.(relisted after the Jan. 7 conference)

Haaland v. Brackeen, 21-376Issues: (1) Whether various provisions of the Indian Child Welfare Act of 1978 namely, the minimum standards ofSection 1912(a), (d), (e), and (f); the placement-preference provisions ofSection 1915(a) and (b); and the recordkeeping provisions ofSections 1915(e)and1951(a) violate the anticommandeering doctrine of the 10th Amendment; (2) whether the individual plaintiffs have Article III standing to challenge ICWAs placement preferences for other Indian families and for Indian foster home[s]; and (3) whether Section 1915(a)(3) and (b)(iii) are rationally related to legitimate governmental interests and therefore consistent with equal protection.(relisted after the Jan. 7 conference)

Cherokee Nation v. Brackeen, 21-377Issues: (1) Whether the en banc U.S. Court of Appeals for the 5th Circuit erred by invalidating six sets of Indian Child Welfare Act provisions 25 U.S.C. 1912(a), (d), (e)-(f),1915(a)-(b), (e), and1951(a) as impermissibly commandeering states (including via its equally divided affirmance); (2) whether the en banc 5th Circuit erred by reaching the merits of the plaintiffs claims that ICWAs placement preferences violate equal protection; and (3) whether the en banc 5th Circuit erred by affirming (via an equally divided court) the district courts judgment invalidating two of ICWAs placement preferences, 25 U.S.C. 1915(a)(3), (b)(iii), as failing to satisfy the rational-basis standard ofMorton v. Mancari.(relisted after the Jan. 7 conference)

Texas v. Haaland, 21-378Issues: (1) Whether Congress has the power under the Indian commerce clause or otherwise to enact laws governing state child-custody proceedings merely because the child is or may be an Indian; (2) whether the Indian classifications used in theIndian Child Welfare Actand its implementing regulations violate the Fifth Amendments equal-protection guarantee; (3) whether ICWA and its implementing regulations violate the anticommandeering doctrine by requiring states to implement Congresss child-custody regime; and (4) whether ICWA and its implementing regulations violate the nondelegation doctrine by allowing individual tribes to alter the placement preferences enacted by Congress.(relisted after the Jan. 7 conference)

Brackeen v. Haaland, 21-380Issues: (1) Whether theIndian Child Welfare Act of 1978s placement preferences which disfavor non-Indian adoptive families in child-placement proceedings involving an Indian child and thereby disadvantage those children discriminate on the basis of race in violation of the U.S. Constitution; and (2) whether ICWAs placement preferences exceed Congresss Article I authority by invading the arena of child placement the virtually exclusive province of the States, as stated inSosna v. Iowa and otherwise commandeering state courts and state agencies to carry out a federal child-placement program.(relisted after the Jan. 7 conference)

Kennedy v. Bremerton School District, 21-418Issues: (1) Whether a public-school employee who says a brief, quiet prayer by himself while at school and visible to students is engaged in government speech that lacks any First Amendment protection; and (2) whether, assuming that such religious expression is private and protected by the free speech and free exercise clauses, the establishment clause nevertheless compels public schools to prohibit it.(relisted after the Jan. 7 conference)

Nance v. Ward, 21-439Issues: (1) Whether an inmates as-applied method-of-execution challenge must be raised in a habeas petition instead of through a42 U.S.C. 1983action if the inmate pleads an alternative method of execution not currently authorized by state law; and (2) whether, if such a challenge must be raised in habeas, it constitutes a successive petition when the challenge would not have been ripe at the time of the inmates first habeas petition.(relisted after the Jan. 7 conference)

Sackett v. Environmental Protection Agency, 21-454Issue: WhetherRapanos v. United States in which the Supreme Court held that theClean Water Actdoes not regulate all wetlands, but without a majority opinion explaining why that is so should be revisited to adopt the pluralitys test for wetlands jurisdiction under the Clean Water Act, in which only those wetlands that have a continuous surface water connection to regulated waters may themselves be regulated.(relisted after the Jan. 7 conference)

National Pork Producers Council v. Ross, 21-468Issues: (1) Whether allegations that a state law has dramatic economic effects largely outside of the state and requires pervasive changes to an integrated nationwide industry state a violation of the dormant commerce clause, or whether the extraterritoriality principle described in the Supreme Courts decisions is now a dead letter; and (2) whether such allegations, concerning a law that is based solely on preferences regarding out-of-state housing of farm animals, state a claim underPike v. Bruce Church, Inc.(relisted after the Jan. 7 conference)

303 Creative LLC v. Elenis, 21-476Issues: (1) Whether applying a public-accommodation law to compel an artist to speak or stay silent, contrary to the artists sincerely held religious beliefs, violates the free speech or free exercise clauses of the First Amendment; and (2) whether a public-accommodation law that authorizes secular but not religious exemptions is generally applicable underEmployment Division v. Smith, and if so, whether the Supreme Court should overruleSmith.(relisted after the Jan. 7 conference)

Vega v. Tekoh, 21-499Issue: Whether a plaintiff may state a claim for relief against a law enforcement officer under42 U.S.C. 1983based simply on an officers failure to provide the warnings prescribed inMiranda v. Arizona.(relisted after the Jan. 7 conference)

Shoop v. Twyford, 21-511Issues: (1) Whether federal courts may use the All Writs Act to order the transportation of state prisoners for reasons not enumerated in28 U.S.C. 2241(c); and (2) whether, before a court grants an order allowing a habeas petitioner to develop new evidence, it must determine whether the evidence could aid the petitioner in proving his entitlement to habeas relief, and whether the evidence may permissibly be considered by a habeas court.(relisted after the Jan. 7 conference)

Love v. Texas, 21-5050Issues: (1) Whether Texas Court of Criminal Appeals, the only court of last resort reviewing direct appeals in death penalty cases, has decided an important federal question concerning a racially biased juror being allowed on a capital death penalty jury in violation of petitioner Kristopher Loves rights under the Sixth and 14th Amendments to the United States Constitution; and (2) whether Texas Court of Criminal Appeals, the only court of last resort reviewing direct appeals in death penalty cases, has decided an important federal question concerning a racially biased juror in a way that conflicts with relevant decisions of the Supreme Court in violation of Loves rights under the Sixth and 14th Amendments to the United States Constitution.(relisted after the Jan. 7 conference)

Oklahoma v. Brown, 21-251; Oklahoma v. Kepler, 21-252; Oklahoma v. Hathcoat, 21-253; Oklahoma v. Mitchell, 21-254; Oklahoma v. Jackson, 21-255; Oklahoma v. Starr, 21-257; Oklahoma v. Davis, 21-258; Oklahoma v. Howell, 21-259; Oklahoma v. Bain, 21-319; Oklahoma v. Perry, 21-320; Oklahoma v. Johnson, 21-321; Oklahoma v. Harjo, 21-322; Oklahoma v. Spears, 21-323; Oklahoma v. Grayson, 21-324; Oklahoma v. Janson, 21-325; Oklahoma v. Sizemore, 21-326; Oklahoma v. Ball, 21-327; Oklahoma v. Epperson, 21-369; Oklahoma v. Stewart, 21-370; Oklahoma v. Jones, 21-371 ; Oklahoma v. Cooper, 21-372; Oklahoma v. Beck, 21-373; Oklahoma v. Jones, 21-451; Oklahoma v. McCombs, 21-484; Oklahoma v. McDaniel, 21-485; Oklahoma v. Shriver, 21-486; Oklahoma v. Martin, 21-487; Oklahoma v. Fox, 21-488; Oklahoma v. Cottingham, 21-502; Oklahoma v. Martin, 21-608Issue: Whether McGirt v. Oklahoma should be overruled.(relisted after the Jan. 7 conference)

Oklahoma v. Williams, 21-265; Oklahoma v. Mize, 21-274; Oklahoma v. Castro-Huerta, 21-429Issues: (1) Whether a state has authority to prosecute non-Indians who commit crimes against Indians in Indian country; and (2) whether McGirt v. Oklahoma should be overruled.(relisted after the Jan. 7 conference)

Knight v. Pennsylvania, 20-7805Issue: Whether a state may require a defendant to present an IQ score of 75 or below that was documented prior to age 18 to have his intellectual disability claim considered as a basis to disqualify him from the death penalty, when this requirement is contrary to clinical standards for diagnosis and contrary to multiple decisions where the Supreme Court has granted relief to petitioners who lacked any such documentation.(relisted after the Oct. 29, Nov. 5, Nov. 12, Nov. 19, Dec. 3, Dec. 10, and Jan. 7 conferences)

Holcombe v. Florida, 21-53Issues: (1) Whether a criminal defendant establishes an actual conflict of interest that adversely affects counsels representation when the attorney engages in joint and dual representation i.e., simultaneously representing both the defendant and a key prosecution witness during a trial; (2) whether the presumed prejudice conflict of interest standard applies when the prosecutor (rather than defense counsel) puts the trial judge on notice at the beginning of a trial of defense counsels conflict of interest a conflict which is described by the prosecutor as not waivable and the judge thereafter fails to inquire into the nature and scope of the conflict.(relisted after the Oct. 29, Nov. 5, Nov. 12, Nov. 19, Dec. 3, Dec. 10, and Jan. 7 conferences)

Trustees of the New Life in Christ Church v. City of Fredericksburg, 21-164Issues: (1) Whether civil authorities violate the First Amendment when they engage in their own interpretation of church doctrine to overrule a churchs determination that a particular official is a minister and, if so, whether summary reversal is appropriate; (2) whether, in the alternative, the Supreme Court should grant, vacate, and remand in light ofFulton v. City of Philadelphia, because Virginia has enacted a system of individual exemptions to its property tax law, and the city may not refuse to extend that [exemption] system to [the Church] without compelling reason.(rescheduled before the Oct. 8 and Oct. 15 conferences; relisted after the Oct. 29, Nov. 5, Nov. 12, Nov. 19, Dec. 3, Dec. 10, and Jan. 7 conferences)

Arrow Highway Steel, Inc. v. Dubin, 21-27Issues: (1) Whether the dormant commerce clause may be used to invalidate the application of a states neutral, non-discriminatory tolling statute to defeat the enforcement of a former residents stipulated judgment where there is no showing of any burden on or discrimination against interstate commerce; and (2) whether the dormant commerce clause applies to a state statute with no intended or demonstrated effect on interstate commerce.(relisted after the Dec. 3, Dec. 10, and Jan 7 conferences)

Read the rest here:
Blockbuster watch: Affirmative action, same-sex weddings, and other big relists - SCOTUSblog

I spent many years writing about the Fort Trumbull drama.

It began with the City of New London, through its corporate development group, failing to dislodge by way of buyout offers the residents of the peninsula's old neighborhood. They were seen as being in the way of redevelopment aimed at expanding the city's tax base and driving economic growth.

The fateful decision to turn to eminent domain to seize and raze the homes deeply divided the community. Led by Susette Kelo and her pink house, the residents dug in. Then came the 2005 landmark but broadly unpopular 5-4 Supreme Court decision, led by the liberal justices, which found that taking private property to spur private development could, somehow, be considered a "public use" under the "taking" clause of the Fifth Amendment.

Irony followed. The city, having won the legal battle, saw nothing much happen with the large vacant property for 15 years. Next door stood the two Pfizer office buildings that predated the Kelo case, a space later abandoned by the Big Pharma company and replaced with Electric Boat offices, but across the peninsula stretched vacant parcels.

Aside from the state park and its historic fort, and the adjacent Coast Guard station, it began to seem nothing ever would, or could, happen at Fort Trumbull. Proposed projects came and went. It was as if a curse had been placed on the place in revenge for the home-taking powerplay.

If so, the curse is lifting. Economic opportunity was the antidote.

On Thursday the city's Planning & Zoning Commission approved plans for a 100-unit, high-end apartment complex and a 100-room extended-stay hotel, which should both offer visitors spectacular views of the Thames River and toward Long Island Sound. A red-hot market for apartments, fueled in significant part by job expansion at EB, suggests developers will have no problem filling those apartments. The extended-stay hotel meets an obvious need as EB, the Coast Guard Academy, the region's Yale-New Haven Health medical centers, and other institutions attract professionals needing lengthy accommodations.

This spring, the city is expected to begin construction on a $30 million community recreation center in the Fort Trumbull area. Memberships will be made available on a sliding scale, making them affordable to low-income residents, say city officials. Making sure the city's youth have access to the center, and transportation options to get there, is a challenge that must be met if New London truly wants to makethis a community center, the development of which has been a long-term goal of Mayor Michael Passero.

While the development of the residential properties and the community center will leave some parcels undeveloped, I suspect it won't be for long. The anticipated activity that the new development will generate regional athletic events are planned for the community center along with the bustle the EB offices already create, is sure to attract another investor or investors. Picture a restaurant, a coffee shop, a place to grab a drink and other businesses that could benefit from the foot traffic.

By 2025, the 20th anniversary, of Kelo v. City of New London, Fort Trumbull will be largely, and perhaps fully, transformed.

This is not good news for those who have pushed for the National Coast Guard Museum to be built there, rather than at the planned location on the waterfront in the city's downtown section. The community center will be a large, non-property-tax-paying project. The city will not welcome a second one to Fort Trumbull in the form of the museum.

The museum will either be built where planned, helping drive downtown activity, or not at all in New London. Success will be determined by whether the National Coast Guard Museum Association can step up its so far disappointing fundraising efforts. Its latest report shows $79 million committed towards its $150 million goal. Only $29 million comes from private donations, with $30 million in federal aid and $20 million from the state for safe pedestrian access.

The development of a bustling Fort Trumbull and a busy Coast Guard Museum downtown would be great for New London. I'm now confident one is going to happen, while withholding judgment on the second.

Paul Choiniere is the former editorial page editor of The Day, now retired. Reach him at p.choiniere@yahoo.com.

Excerpt from:
Transforming Fort Trumbull, without a Coast Guard Museum - theday.com

Sky News looks at Prince Andrew's options after his legal team failed to persuade a US judge to dismiss Virginia Giuffre's lawsuit accusing the Duke of York of sexually assaulting her when she was underage.

US District Judge Lewis Kaplan has said Ms Giuffre, formerly Virginia Roberts, could pursue allegations that the royal abused her as a teenager and intentionally caused her emotional distress while the late financier Jeffrey Epstein was trafficking her.

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The Manhattan judge also said it was too early to assess Andrew's efforts to "cast doubt" on those claims, although the 61-year-old prince could do so at a trial. The duke denies all the allegations against him.

Here are some of Andrew's options now he is set to face a civil sex case trial later this year.

Discovery

The duke has now failed in his attempt to get this civil case thrown out, and therefore the legal process of 'discovery' continues.

This is when both sides request and exchange evidence to help build their cases.

It could involve relevant documents being handed over such as medical records, travel itineraries and diary entries. Discovery is also likely to include depositions.

Follow live updates: Civil trial likely this year as judge issues 46-page document rejecting Prince Andrew's arguments

Depositions

A deposition is when an individual is interviewed out of court but under sworn oath by lawyers acting for the opposite side. A transcript or video of the deposition is then submitted to the court as evidence.

The prince would be deposed by David Boies, the 80-year-old US legal veteran who is representing Ms Giuffre.

Former federal prosecutor Mitchell Eptner argues that Mr Boies is "without peer the greatest deposition taker in modern American jurisprudence".

He deposed Bill Gates in the 1990s and acted for Al Gore in the disputed 2000 US presidential election.

A deposition could take place in the UK but under US oath.

We would also expect Ms Giuffre to be deposed by Andrew's lawyers.

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The prince has four options of what to do next.

Option one: Give evidence

Firstly, he could decide to answer questions from Mr Boies in a deposition and share personal documents with Ms Giuffre's legal team.

The duke has strenuously and repeatedly asserted his innocence and he may relish the opportunity to set out his recollections and views.

Judge Lewis Kaplan had suggested a jury trial could start in September 2022. Continuing to trial would be a high-risk move and definitely lead to further damaging headlines involving the prince and his family.

Option two: Stay silent

The duke could agree to a deposition but 'take the fifth' - decide to assert his rights under the fifth amendment to the US constitution and stay silent to avoid incriminating himself.

That fact alone, however, could damage his case and be taken into account by the judge and jury at a trial.

Option three: Refuse to participate

The duke could decide to stop engaging with the legal process and take a 'default judgement'.

The judge would then make a ruling on his liability and set damages.

Option four: Settle

In approximately 95% of US civil cases, a settlement is agreed between the two parties, often involving money. Jury trials are rare.

To stem further damage to the Royal Family, the duke may decide to settle. Some legal experts estimate this would be a multi-million dollar deal.

Continuing to fight the case would also bring significant legal costs and therefore it may now be wise to cut his losses.

Ms Giuffre's motivations do not, however, seem purely financial.

She has already received significant compensation due to the abuse she suffered at the hands of paedophile Epstein, and may now be more concerned with finding the truth and pursuing justice.

It seems highly unlikely Ms Giuffre and her team would settle without an acknowledgement of liability and an apology from the prince.

Read the rest here:
Prince Andrew sex assault allegations - What are his options after he fails to get US judge to dismiss accuser Virginia Giuffre's case? - Sky News

Summary

President Biden calls for filibuster reform, if Republicans block voting rights legislation, during his big speech in Atlanta. It comes as Senate Majority Leader Chuck Schumer plans to bring the legislation to the floor again as soon as Wednesday. Meantime, the Jan. 6th committee issues a new round of subpoenas, targeting two Donald Trump Jr. advisors and a former White House official who helped draft the speech Trump gave prior to the attack on the Capitol. Plus, the U.S. reports more than 1.3 million new Covid infections just a week after breaking the previous daily record.

(COMMERCIAL BREAK)

LAWRENCE O`DONNELL, MSNBC HOST: Time for tonight`s "LAST WORD."

(BEGIN VIDEO CLIP)

REP. KEVIN MCCARTHY (R-CA) MINORITY LEADER: The President bears responsibility for Wednesday`s attack on Congress by mob rioters.

(END VIDEO CLIP)

O`DONNELL: Kevin McCarthy, friend of Donald Trump gets tonight`s "LAST WORD." THE 11TH HOUR starts now.

[23:00:28]

STEPHANIE RUHLE, MSNBC HOST: Good evening, I`m Stephanie Ruhle. Day 357 of the Biden administration. Today, the president and vice president we`re in Atlanta, Georgia, the epicenter of the civil rights movement to make their strongest case yet for voting rights. Together, they urge the Senate to pass the new voting protections still being blocked by all 50 Republicans and Biden through his support behind changing the Senate rules to make that happen.

(BEGIN VIDEO CLIP)

JOE BIDEN, U.S. PRESIDENT: We must stand strong and stand together to make sure January 6 marks not the end democracy. But the beginning. The Freedom of the Vote Act takes on election subversion to protect nonpartisan electors, officials who doing their job from intimidation interference, it`s also time to pass the John Lewis Voting Rights Advancement Act.

I`ve been having these quiet conversations with members of Congress for the last two months. I`m tired to be quiet.

The threat to our democracy is so grave that we must find a way to pass these voting rights bill. Debate them, vote, let the majority prevail. And if that bare minimum is blocked, we have no option but to change the Senate rules including getting rid of the filibuster for this.

I support changing the Senate rules, whichever way they need to be changed to prevent a minority of senators from blocking action on voting rights.

(END VIDEO CLIP)

RUHLE: And why has President Biden made this his number one focus? Well, according to the Brennan Center for justice, at least 19 states have passed 34 different laws restricting access to the ballot. Vice President Harris offered this warning about those very efforts.

(BEGIN VIDEO CLIP)

KAMALA HARRIS, U.S. VICE PRESIDENT: There is a danger of becoming accustomed to these laws. We must not be deceived into thinking a law that makes it more difficult for students to vote is normal. We must not be deceived into thinking a law that makes it illegal to help a voter with a disability vote by mail is normal. There is nothing normal about a law that makes it illegal to pass out water or food to people standing in long voting lines.

(END VIDEO CLIP)

RUHLE: While back in Washington, the two Senate leaders both took to the floor today with strong statements about voting legislation and reforming the filibuster. Majority Leader Schumer insisted Democrats are ready to move forward.

(BEGIN VIDEO CLIP)

SEN. CHUCK SCHUMER (D-NY) MAJORITY LEADER: The Senate is going to act as soon as tomorrow. It is my intention to once again bring legislation to the floor to fight back against the threats to democracy and protect people`s access to the ballot.

Once again, I urge my Republican colleagues to take up the flag of the traditional Republican Party, not only of Lincoln, but of Reagan and H.W. Bush and W. Bush and vote yes to move forward. So we can have a debate, like the debate we just had, or discussion we just had.

But if Republicans continue to hijack the rules of the Senate to prevent voting rights from happening, if they continue paralyzing this chamber, to the point where we`re helpless to fight back against the big lie, we must consider the necessary steps we can take so the Senate can adapt and act.

(END VIDEO CLIP)

RUHLE: While Republicans Republican Mitch McConnell fired back promising his favorite move to retaliate.

(BEGIN VIDEO CLIP)

SEN. MITCH MCCONNELL (R-KY) MINORITY LEADER: If my colleague tries to break the Senate to silence those millions of Americans, we will make their voices heard in this chamber in ways that are more inconvenient for the majority and this White House than what anybody has seen, and living memory.

Our colleagues who are itching to drain every drop of collegiality from this body have not even begun to consider how that would work. If the Democratic leader tries to shut millions of Americans and entire states out of the business of governing, the operations of this body will change. Oh, yes. That much is true, but not in ways that reward the rule breakers. Not in ways that advantage this president, this majority or their party. I guarantee you.

(END VIDEO CLIP)

[23:05:24]

RUHLE: There`s also new developments tonight in the January 6 investigation, House Select Committee now interested in talking to extra lawyer and former New York City Mayor Rudy Giuliani, one of the leading figures over and over peddling false claims about election fraud.

Committee Chairman Bennie Thompson says Giuliani is on a list of a lot of people they want to be talking to. When asked about the possibility of a subpoena for Giuliani, Thompson said the committee is working through the process.

The panel today did issue a round of subpoenas to three separate people all in the Trump family inner circle. The lawmakers demanding testimony and documents from Andy Surabian, Arthur Schwartz, were both advisors to Donald Trump Jr. The committee says those two guys spoke with the younger Trump and others about last year`s rally. The third subpoena which Ross Worthington, he`s a former Trump White House official who allegedly helped draft Trump`s rally speech.

And as that investigation unfolds, the Department of Justice today announced the creation of a new unit to fight domestic terrorism. Justice officials say there are persistent and evolving threats of violent extremism in the US.

And as the nation battles the relentless spread of Omicron, many hospitals across the country are continuing to be overwhelmed. The New York Times reporting today that the number of people admitted for COVID now higher than it was during last winter surge.

With that and a lot of news we`ve got to cover tonight. I want to bring in our lead off guests on this Tuesday. Phil Rucker, Pulitzer Prize winning senior Washington correspondent for The Washington Post and co-author of the must read New York Times bestseller, "I alone can fix it." Alexi McCammond, political reporter for Axios and Chuck Rosenberg, former US attorney and former senior FBI official

Phil, let`s talk about Biden, he was pretty clear. He demanded action on voting rights and said we need to tweak, not scrap the filibuster. Many, many people said we need a plan. That sounds like a plan.

PHIL RUCKER, THE WASHINGTON POST SENIOR WHITE HOUSE CORRESPONDENT: Yes, Steph. This was a long time coming for Democrats and voting rights and civil rights activists in this country. They`ve wanted to see the President speak with a sort of forceful authority and really righteous anger that he showed in Atlanta today.

He clearly is prioritizing voting rights now. But for some Democrats, there`s a feeling that it`s a little bit too late here. And there`s also a question of what that plan actually is without the support of Senators Manchin and Sinema in the Senate, the math just doesn`t add up to get to the 50 votes that are necessary to change those rules and to pass this voting rights legislation.

But as you heard from Senator Schumer, Democrats are going to move forward and later in this week to try to bring this to the floor and try to take action. And what you saw today in Atlanta was Biden and Vice President Harris putting it all on the line and really showing that their presidency and their administration is behind this push right now.

RUHLE: Alexi, some progressives, as well as voting and civil rights groups skipped Biden speech today, after the speech, the president of the NAACP said this quote, while President Biden delivered a stirring speech today, it`s time for this administration to match their words, with actions and for Congress to do their jobs.

Was skipping today a warning to Biden? We don`t show up for you on your speech, and we`re not showing up for you or Democrats come election day, if you don`t deliver.

ALEXI MCCAMMOND, AXIOS POLITICAL REPORTER: That wasn`t the message they were sending. And I asked them during this Zoom in which they announced that they weren`t going if what they would basically say to voters for why they should show up and still support the Democratic Party and Democratic candidates if they aren`t able to deliver on Federal Voting rights.

And these folks said, it`s not about ditching the Democratic Party or ditching Democratic candidates or Biden. It`s about continuing to do the work. And I think that`s what their absence said more than anything. They were saying, Look, President Biden, thanks for coming to Atlanta, but we`d rather you be giving the speech in Washington DC to senators on Capitol Hill. Their absence was saying we`re still doing the work here in Georgia and across the country to educate voters to register voters to make sure they know what to do come 2022. Because voting is you know and started the hour with in 2022 and beyond will really depend based on where you live.

RUHLE: Chuck, let`s talk about this new DOJ unit they are designing to specifically handle domestic terrorism. Is it a big deal? It sounds that way.

CHUCK ROSENBERG, FMR. U.S. ATTORNEY: It sounds that way, Stephanie, but I don`t think it is. Let me explain.

[23:10:02]

Prior to 9/11, the Department of Justice and the FBI was doing a lot of national security work, but they didn`t have a National Security Division. And after 9/11, they created one, they put a new box on the organizational chart of the Department of Justice.

Similarly, prior to January 6, and for many years, the Department of Justice and the FBI has been doing lots and lots of work on domestic terrorism investigations and prosecutions. But they didn`t have a domestic terrorism unit in the National Security Division, now they do.

Putting another box on an organizational chart is helpful in certain ways. It tells the organization what leadership thinks is important, sends a signal to Congress and to the public. But there has to be more than just the box on an organizational chart. I`m glad they did it. But there`s a lot more work to do. Domestic terrorism is a metastasizing threat, and merely creating a new unit, while helpful is not enough.

RUHLE: Isn`t this the first step to doing that? I think back to what they did after 9/11.

ROSENBERG: Yes, I think it`s the first step. But I think there are other and more important steps, Stephanie. Let me give you an example. You all know that there are crimes of international terrorism, providing material support to al Qaeda or to ISIS is a federal crime. There is no federal crime of domestic terrorism. There`s a federal definition of domestic terrorism in the Criminal Code. But there is no crime of domestic terrorism.

The Department of Justice can`t create one, Congress has to. And I think there`s lots of good reasons for Congress to do that, however, and people will know this better than me. I don`t think Congress can agree that today is Tuesday.

And so waiting on Congress to fill this moral equivalency gap in federal law, I think is well, I think we`re going to be waiting quite a long time. That`s what needs to happen. FBI has the tools. The Department of Justice has the tools. They have the experience. They have the agents, they have the prosecutors, but they could use a federal domestic terrorism law from Congress. That`s what we need.

RUHLE: Phil, if you look closely, today`s his speech could be considered something like a campaign rally. This is the second speech in a row. Biden has taken a direct swing at Trump or as he likes to call him, the defeated former president. That`s a new stroke for him.

RUCKER: It is. We heard for all of the first year of Biden`s presidency or reluctance to even reference Donald Trump, let alone utter his name, or speak of him in any of his remarks. He would occasionally refer to the former guy. But now we hear the defeated former president.

You heard in that speech last week that President Biden gave that he invoked Trump although not by name, but invoked him nonetheless 16 times. He came out swinging against Trump and he did so again today in Atlanta. This is a new rhetorical shift.

My colleagues at The Washington Post`s Tyler pager and Annie Linskey have been reporting on this the last few days, and have determined that there`s a new strategy in the White House, which is not to attack Trump daily like this, but to attack him at big high profile moments when he thinks there`s going to be considerable media attention, such as the speech today in Atlanta, and when he might be able to deliver a message beyond those who are following politics hour by hour.

RUHLE: Alexi, how about Chuck Schumer`s message? He`s pushing to hold votes on the floor of the Senate very soon. When I looked at the numbers, I don`t get it. What does he know that we don`t last? I`ve heard Sinema and Manchin they haven`t moved?

MCCAMMOND: Yes, I mean, look, Steph, as you know, holding a vote like that is going to put folks like Manchin and Sinema on the record and show voters across the country and their state and otherwise, where they stand on this issue, and show people where the remaining continued disagreements are within the Democratic Party.

So, I don`t think that Schumer thinks that this thing is going to be passed into law anytime soon. I don`t think that Manchin and Sinema are necessarily going to be convinced by one speech by President Biden and Vice President Harris.

But it`s not to say that the debate will end after this vote happens. I think there`s going to be a lot of conversations and negotiations going forward.

RUHLE: But we know where they stand. Joe Manchin has said it over and over and over, there`s no surprise there.

MCCAMMOND: Well, you know, I think they`re going to show Americans where they stand. I mean, you know, baby Joe Manchin will try to use this as a moment to get more leverage with Build Back Better, as you know, that has been passed, in part because Senator Joe Manchin is holding that up as well. So, their conversations to be had and the senators say they want to get something done.

RUHLE: All right, Chuck, let`s go back to the January 6 committee. They say they`re working on getting Rudy Giuliani to testify, and I want to share what Republican committee member Adam Kinzinger said earlier tonight.

(BEGIN VIDEO CLIP)

REP. ADAM KINZINGER (R-IL): Obviously Rudy was in a lot of those conversations.

[23:15:00]

We see an after the fact reporting he was, you know, actively pressing the president on these conspiracies and convincing him and, you know, worming his way in to these meetings. So he`ll have some information, I fully expect he probably won`t be super cooperative. But again, Congress has ways to compel that and we have ways to ensure that he`s telling the truth under oath.

(END VIDEO CLIP)

RUHLE: What are the ways to compel? Because let`s be honest, the likelihood Rudy Giuliani is going to participate while he loves the attention and he loves to talk. He`s not going to play ball.

ROSENBERG: No, he`s not going to play ball, Stephanie. And I think there`s a bigger problem with all due respect to the Congressman that he missed. You recall that the FBI executed search warrants at Mr. Giuliani`s home and office. He`s under criminal investigation, as far as we knew. He`s either likely a subject or a target of a federal criminal investigation, that gives him a Fifth Amendment privilege. Look, I`d love to hear from the guy.

RUHLE: Explain that.

ROSENBERG: Sure. We have reason to believe that Giuliani is under criminal investigation. We know the FBI executed search warrants at his home and office more than a year ago. That case has never been resolved. And it`s been very quiet.

But I imagine that because he`s under investigation, he can assert validly a Fifth Amendment privilege to refuse to answer any question, if an answer to the question tends to incriminate him.

So, your point about him not being cooperative is spot on. I`m not sure this guy would know the truth of it hit him in the back of their head.

But putting all that aside, and putting aside to that, I would love to hear from him because he must have tons of relevant information. He also can invoke his Fifth Amendment privilege not to testify. That`s a problem for Congress.

Prosecutors can overcome that, by immunizing and compelling someone to testify. Congress, in theory could try that route. But it might undermine any ongoing prosecution that the Department of Justice is conducting. This is a more difficult issue than the Congressman imagines.

RUHLE: Of course, the White House has other issues they`re dealing with. Phil, at this point, is the White House strategy around COVID and Omicron, to let this wave crest recede, and then get back to normal because as the days pass, you hear from more and more business leaders that are saying, yes, this thing`s going to move, and we`re all getting back to work or you`re not getting paid. That`s the most aggressive we`ve seen from the business community.

RUCKER: It certainly is Steph, and it`s a different approach than we saw in previous waves of the Coronavirus last year and then the year prior. The attitude in the White House is let`s get back to normal as quickly as we can. Obviously, they`re dealing with the hospitalizations around the country with the testing issues, with making sure that as many people are getting vaccinated as possible, but there`s also a focus on trying to get this economy more opened up getting life back to normal, getting people back in offices whenever it`s safe and appropriate to do so.

And also a determination from this White House not to impose any sort of lockdowns or extreme restrictions of the kind that we saw in those early months of the pandemic in the spring of 2020.

RUHLE: There`s a lot of determination when it comes to a political agenda for the President to get his whole party under 110. Alexi, before we go progressives, what is their plan to get in line, GOP style, hold your nose and get behind Trump? Or are they going to stand firm to what they believe and what they want? Whether it`s with voting rights or Build Back Better? Biden, excuse me.

MCCAMMOND: Sorry, you`re asking about progressive, they`re going to continue doing what they`ve been doing, which is employing the leverage that they have as a unified caucus, the Congressional Progressive Caucus has been moving as a solid block throughout this entire Congress and congressional session.

And so I don`t see that going away anytime soon, especially when Congresswoman Pramila Jayapal, you know, has become a leader within that movement internally. And I think that`s especially true with voting rights, especially because they have the backing of all these folks on the outside the voting rights leaders, the civil rights leaders, the activist members of the King family, so there`s no reason for them to capitulate to anyone at this point.

RUHLE: Because at some point, Joe Manchin and progressives have got to get on some sort of similar page to get something done those activist groups, while massively important don`t have a vote Manchin and Sinema do.

MCCAMMOND: Yes, but I guess the argument they would make is it`s to folks versus you know, thousands and thousands and thousands across the country who are asking for these voting rights to be passed into law or asking for measures within the Build Back Better Act to be passed into law and help them, that only live life but participate in elections this cycle and next.

RUHLE: And if you want those thousands and thousands of votes for years to come, you better deliver.

[23:20:02]

Phil, Alexi, Chuck, always good to have you. We`re going to leave it there. Coming up, we`ve got a lot more to cover. Why would anyone be against protecting voting rights or saving lives from COVID? Turns out the answer might be the same for both. I`ll get into what our political experts and one of our top doctors have to say. THE 11TH HOUR just getting underway on this Tuesday night.

(COMMERCIAL BREAK)

(BEGIN VIDEO CLIP)

SEN. MARCO RUBIO (R-FL): Let me say this plainly and simply and straightforward. There is no widespread effort to suppress minority voting rights in America. It`s nonexistent, it doesn`t exist. This has nothing to do with this. This has to do with power.

(END VIDEO CLIP)

RUHLE: Well, that is not plain simple or straightforward. So let`s get practical. Here`s a reminder, this is what is in the legislation Democrats are trying to pass. The Freedom to Vote Act would expand voter registration and Election Day access, provide universal mail-in voting, make Election Day a national holiday and ban partisan redistricting. The John Lewis Voting Rights Act would reinstall federal oversight for cities and states with histories of voter discrimination.

With us tonight to discuss, Juanita Tolliver, veteran political strategist to progressive candidates and causes. And Mark McKinnon, former adviser to both George W. Bush and John McCain. He`s also among the co-hosts of the circus on Showtime.

Mark, we just went through this thing. Now Republicans have branded themselves as the party of patriots. How does that square with any patriot who wouldn`t want to make Election Day a holiday?

[23:25:03]

MARK MCKINNON, FMR. ADVISOR TO JOHN MCCAIN AND GEORGE W. BUSH: Great question, Stephanie. I mean, this really boils down to -- I mean, I respond first of Marco Rubio by saying the root of this is the 2020 election and President Trump claiming that there was widespread election fraud in the system. And the fact is, there is none. There is no widespread systemic fraud, that then the greatest fraud perpetuate in American politics today is the notion that there was.

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Transcript: The 11th Hour, 1/11/22 - MSNBC