The National  Memo Logo

Smart. Sharp. Funny. Fearless.

Monday, December 09, 2019 {{ new Date().getDay() }}

More than two months have passed since President Obama nominated Judge Merrick Garland to take the vacant seat of the late Justice Antonin Scalia and become the nation’s 113th Supreme Court justice. Garland is a moderate who has been praised by politicians in both parties and whose work on the D.C. Court of Appeals has displayed little discernible ideological bent.

The Senate’s refusal to vote on Garland’s confirmation isn’t surprising – Senate Majority Leader Mitch McConell announced that the Senate would not consider any Obama nominees the very same day Justice Scalia died, once again confirming the 114th Congress’s main objective: obstruction.

What may come as a surprise is that, even after Donald Trump became the Republican nominee, Senate Republicans still refuse to consider Garland over whomever the unpredictable Trump may pick.

To calm Republican concerns that he isn’t really a conservative, Trump released a list of his possible Supreme Court nominees last month. The list is tailor-made for establishment conservatives, including anti-abortion judges like Raymond W. Gruender, who was involved in enforcing a South Dakota law requiring doctors to tell women that abortions “terminate the life of a whole, separate, unique living human being,” and William H. Pryor Jr., who has publicly denounced Roe v. Wade, calling it a “a constitutional right to murder an unborn child.”

Gruender and Pryor may have sounded like candy to a child to Senate Republicans, but what about Trump’s claims that Judge Gonzalo Curiel shouldn’t preside over the Trump University lawsuits against him because he’s “Mexican”? Or his claims that it would be “wild” if he came back to face Curiel as president? The Economist said of those comments, “If Mr Trump wins the White House, he will have a bully pulpit at his disposal from which he could unravel basic principles of American democracy.”

Senate Judiciary Chairman Chuck Grassley said Trump’s remarks should not raise concerns over his ability to nominate a Supreme Court justice. Actually, he believes that “you don’t have any more trouble with what Trump said than when Sotomayor was found saying in speeches that, quote, ‘A wise Latina woman with the richness of her experience would more often than not reach a better conclusion than a white male.'”

After Grassley’s refusal to disavow Trump’s racist remarks, Senator Harry Reid lambasted him during his opening floor remarks last Tuesday. “Instead of rising above bipartisanship and condemning Trump’s racist attack on a highly qualified judge — by the way, who was born in Indiana — Grassley kisses Trump’s ring and toes the party line,” the Senate minority leader said before reading an excerpt from the Roll Call report in which Grassley stated that Trump “must respect the judiciary” because he has “seen statistics that he’s won over 400 cases, only lost 30.”

“How about that? I find it curious that the chairman doesn’t have time to read Merrick Garland’s questionnaire or give him a hearing but has time to study Donald Trump’s success rate in the courtroom,” Reid commented after reading the excerpt.

Grassley responded by saying that he wouldn’t have said what Trump said about Judge Curiel and disagreed with his assessment, but based on his “Q&As with Iowans last week, they are more concerned about the jobs report that came out on Friday and about how we can get more Americans back to work with decent paying jobs.”

Other members of the Senates Judiciary Committee also refuse to consider Garland’s candidacy despite their negative views, and even fear, of Trump. Senator Lindsey Graham, who has become one of the GOP’s few remaining opponents to Trump, met with Garland but still refuses to support a vote on his nomination. Graham accused Trump of “playing the race card” and called his attacks on Judge Curiel “the most un-American thing from a politician since Joe McCarthy.” Still, he would rather Trump, who he has said he won’t vote for, choose the next Supreme Court justice over even considering the moderate Garland, who he has called “a very capable, honest judge.”

Senator Mike Lee has said that Trump scares him “to death,” and is not ready to endorse him. Still, he stands with his party’s strategy and refuses to support a vote on Garland.

Senator Jeff Flake has stated that Trump’s comments about Curiel ethnicity may provoke a challenge to trump’s candidacy at the convention. “The whole thing that we Republicans say we’re against, this identity politics, to say that if you’re a certain gender or you’re a certain race that you have to vote that way,” Flake said. “He’s just trying to confirm that stereotype that’s completely wrong. It’s offensive, it really is.” Senator David Purdue said he was “troubled” by Trump’s remarks. Still, they will not vote on Garland.

The Republican argument for refusing to vote to fill Scalia’s seat has been that the American people should have a say on his replacement, ignoring that the American people voted for President Obama to make that choice in 2008 and 2012. The Senate’s refusal to vote on Garland’s confirmation is unprecedented. A scholarly article by law professors Robin Kar and Jason Mazzone found that there have been 103 instances in which a president nominated and appointed a new justice prior to the election of the next president. The study did not find a single exception to this practice in American History.

President Reagan, for example, nominated Anthony Kennedy when he was approaching his final year in office, and the Senate unanimously approved Kennedy in February 1988 – less than a year before the end of Reagan’s second term. This is the first time in American history that a president has been denied even the opportunity to fill a vacant seat on the Supreme Court.

The Supreme Court has had eight justices – a number Ruth Bader Ginsburg called “not a good number” — for almost four months now. A March CNN/ORC poll found that two-thirds of Americans want the Senate to hold confirmation hearings on Garland’s candidacy.


Photo: U.S. Supreme Court nominee Judge Merrick Garland walks after a breakfast with Senate Judiciary Committee Chair Senator Chuck Grassley (R-IA) on Capitol Hill Washington, April 12, 2016. REUTERS/Yuri Gripas 


Start your day with National Memo Newsletter

Know first.

The opinions that matter. Delivered to your inbox every morning

  • 1.Why did Trump choose to hide certain specific files and not others at Mar-a-Lago? What were the criteria that Trump used to keep some files concealed and not others? Who selected those files? Did Trump consult or direct anyone in his selection of secret files? Trump was notorious for being too impatient to read his briefing papers, even after they had been drastically shortened and simplified. Is there the slightest evidence that he spirited these papers away so that he could consult or study them? Who besides Trump knew of the presence of the files he had concealed at Mar-a-Lago?
  • 2. Mar-a-Lago has an infamous reputation for being open to penetration even by foreign spies. In 2019, the FBI arrested a Chinese woman who had entered the property with electronic devices. She was convicted of trespassing, lying to the Secret Service, and sentenced and served eight-months in a federal prison, before being deported to China. Have other individuals with possible links to foreign intelligence operations been present at Mar-a-Lago?
  • 3. Did members of Trump's Secret Service detail have knowledge of his secret storage of the files at Mar-a-Lago? What was the relationship of the Secret Service detail to the FBI? Did the Secret Service, or any agent, disclose information about the files to the FBI?
  • 4. Trump's designated representatives to the National Archives are Kash Patel and John Solomon, co-conspirators in the investigations into Russian interference in the presidential election of 2016, the Ukraine missiles-for-political dirt scandal that led to the first impeachment in 2019, and the coup of 2020. Neither has any professional background in handling archival materials. Patel, a die-hard Trump loyalist whose last job in the administration was as chief of staff to the Acting Secretary of Defense, was supposedly involved in Trump’s “declassification” of some files. Patel has stated, “Trump declassified whole sets of materials in anticipation of leaving government that he thought the American public should have the right to read themselves."
  • The White House counsel failed to generate the paperwork to change the classification markings, but that doesn’t mean the information wasn’t declassified.” If Pat Cipollone, the White House legal counsel, did not “generate the paperwork,” was he or anyone on his staff aware at all of the declassifications? The White House Staff Secretary Derek Lyons resigned his post in December 2020. Did his successor, who held the position for a month, while Trump was consumed with plotting his coup, ever review the material found in Trump’s concealed files for declassification? Or did Patel review the material? Can Patel name any individual who properly reviewed the supposed declassification?
  • 5. Why did Trump keep his pardon of Roger Stone among his secret files? Was it somehow to maintain leverage over Stone? What would that leverage be? Would it involve Stone's role as a conduit with the Proud Boys and Oath Keepers during the coup? Or is there another pardon in Trump’s files for Stone, a secret pardon for his activities in the January 6th insurrection? Because of the sweeping nature of the pardon clause, pardons can remain undisclosed (until needed). Pardons are self-executing, require no justification and are not subject to court review beyond the fact of their timely execution. In other words, a court may verify the pardon was valid in time but has no power to review appropriateness. A pardon could even be oral but would need to be verifiable by a witness. Do the files contain secret pardons for Trump himself, members of his family, members of the Congress, and other co-conspirators?
  • 6.Was the FBI warrant obtained to block the imminent circulation or sale of information in the files to foreign powers? Does the affidavit of the informant at Mar-a-Lago, which has not been released, provide information about Trump’s monetization that required urgency in executing the warrant? Did Trump monetize information in any of the files? How? With whom? Any foreign power or entity? Was the Saudi payment from its sovereign wealth fund for the LIV Golf Tournament at Trump’s Bedminster Golf Club for a service that Trump rendered, an exchange of anything of value or information that was in the files? If it involved information in the files was it about nuclear programs? Was it about the nuclear program of Israel? How much exactly was the Saudi payment for the golf tournament? The Saudi sovereign wealth fund gave Jared Kushner and former Trump Secretary of the Treasury Steven Mnuchin $2 billion for their startup hedge fund, Affinity Partners. Do the Saudis regard that investment as partial payment for Trump’s transfer of nuclear information? Were Kushner or Mnuchin aware of the secret files at Mar-a-Lago?
  • 7.Did Trump destroy any of the files? If so, when? Did those files contain incriminating information? Did he destroy any files after he received the June subpoena?
  • 8.Were any of the secrets of our allies compromised? Has the U.S. government provided an inventory of breaches or potential breaches to our allies?
  • 9.Does the resort maintain a copying machine near the classified documents that Trump hid? Were any of the documents copied or scanned? Are Trump’s documents at Mar-a-Lago originals or copies? Were any copies shown or given to anyone?
  • 10.Trump’s lawyer Christina Bobb has revealed that a video surveillance system covers the places where Trump hid the files at Mar-a-Lago, and that the system is connected to a system at his other residences at the Bedminster Golf Club in New Jersey and Trump Tower in New York City. According to Bobb, Trump and members of his family observed the FBI search and seizure of his files at Mar-a-Lago, “actually able to see the whole thing” through their surveillance system. Who has that surveillance system recorded entering the rooms where the files were kept?

Kevin Bacon, right, in "The Following"

The aftermath of the August 8, 2022 search of the Mar-a-Lago club, former President Donald Trump’s Florida home, isn’t the first showdown between the FBI and a cult leader.

The Following, a 2013 Fox Pictures series, played out in similar fashion. Three seasons was enough for the producers and it’s been nine years since our introduction to Joe Carroll, English professor-novelist-serial killer, so there’s a spoiler risk -- but not enough to prevent the comparison.

Keep reading... Show less
{{ }}