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Amy Coney Barrett at the White House

Official White House Photo by Joyce N. Boghosian

Reprinted with permission from MediaMatters

As Justice Amy Coney Barrett begins her tenure on the Supreme Court, right-wing media have argued that Barrett does not need to recuse herself from cases concerning President Donald Trump, the election, the Affordable Care Act, and Roe v. Wade. However, this narrative ignores the reality that Trump promised a Supreme Court justice who will vote for him and his interests in these cases. Given Trump's unprecedented actions toward the independence of the court, Barrett has a duty to recuse herself to avoid the indisputable perception of bias.

On October 26, the Senate confirmed Barrett to the Supreme Court, ushering in a far-right ideological lurch to the court and the decisions it will impart for generations. During her confirmation hearing, Barrett refused to say whether she would recuse herself from cases involving the upcoming election -- despite the fact that Trump himself has indicated that her seat needed to be filled quickly because he thinks the election "will end up in the Supreme Court, and I think it's very important that we have nine Justices" because "having a 4-4 situation is not a good situation." Trump got his wish in Barrett, who appeared at the White House for an event celebrating her confirmation which the Trump team essentially turned into an election ad.

As Slate's Dahlia Lithwick wrote before the confirmation, the president pushed the illegitimate process through before the election "because Trump needs her to weigh in on any election-related controversy on his behalf." Other legal experts agree that Barrett needs to recuse herself from any election-related cases given even the perception of bias that Trump's own words and actions impart. Pennsylvania has already filed a motion for her recusal in an election-related case that has been petitioned to the Supreme Court, citing Caperton v. A.T. Massey Coal Co., where the court stated:

Just as no man is allowed to be a judge in his own cause, similar fears of bias can arise when — without the other parties' consent — a man chooses the judge in his own cause.

The perception of bias extends to other cases that Trump has demanded the new justice rule in his interest -- most notably the ACA and Roe. In addition to Barrett's own criticism of the ACA and Roe, Trump promised before his election in 2016: "If I win the presidency, my judicial appointments will do the right thing unlike Bush's appointee John Roberts on ObamaCare." On Roe, Trump has repeatedly claimed that he would appoint justices to overturn the decision, telling Fox News' Chris Wallace at one point that "if we put another two or perhaps three justices on" the court, the overturning of Roe "will happen automatically in my opinion."

The question of whether Barrett will get an opportunity to rule on these decisions is not hypothetical. Oral arguments in California v. Texas -- a case that the Trump administration has telegraphed should result in the complete dismantling of the ACA -- are set for November 10. The Supreme Court will also consider "a case that directly challenges Roe v. Wade and has the potential to reverse the landmark 1973 decision" on October 30 -- a mere four days into Barrett's tenure. The case would determine the constitutionality of Mississippi's 15-week abortion ban, which is currently unconstitutional under Roe. But Trump's court would likely uphold this law, which will lead to a cascade of states passing earlier and complete bans without the Roe protections in place.

Right-wing media, however, have ignored all of this context and lied that Barrett has no reason to recuse herself from these cases. Outlets like The Wall Street Journal and The Washington Examiner have pushed editorials claiming Barrett "would be shirking her duty if she did recuse" and arguing that "the case for recusal rests solely on the hope of helping Joe Biden. It is purely political." The Federalist's Erielle Davidson dismissed the suggestion of recusal writing, "It seems Democrats are determined to rely on the same worn playbook of appealing to 'norms' that do not exist." National Review's Dan McLaughlin similarly dismissed the obvious need for recusal because "we all know Trump says things, and the Supreme Court tends to ignore them."

On Fox News, law professor Jonathan Turley said that calls for Barrett's recusal were "bloody ridiculous" and "utterly absurd," adding that "there is no basis why she should recuse herself from voting on these pending cases or on election cases." In an argument sure to appeal to Trump, Fox contributor Andrew McCarthy made the case for refusing recusal by pointing to the "mistake" former Attorney General Jeff Sessions made in recusing himself from the Russian election interference investigation.

Right-wing media are intentionally ignoring Trump's unprecedented attack on the integrity of the court by bragging that he would select a Supreme Court justice who would rule in his favor come Election Day and beyond. In reality, Barrett does have a duty to recuse herself, but hopefully she will not cave to the president and his right-wing media allies instead.


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Former President Donald Trump, left, and former White House counsel Pat Cipollone

On Wednesday evening the House Select Committee investigating the Trump coup plot issued a subpoena to former White House counsel Pat Cipollone, following blockbuster testimony from former White House aide Cassidy Hutchinson, who said the lawyer had warned of potential criminal activity by former President Donald Trump and his aides.

The committee summons to Cipollone followed long negotiations over his possible appearance and increasing pressure on him to come forward as Hutchinson did. Committee members expect the former counsel’s testimony to advance their investigation, owing to his knowledge of the former president's actions before, during and after the January 6, 2021 attack on the U.S. Capitol.

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Mark Meadows

Donald Trump’s White House Chief of Staff Mark Meadows wanted a presidential pardon. He had facilitated key stages of Trump’s attempted 2020 coup, linking the insurrectionists to the highest reaches of the White House and Congress.

But ultimately, Meadows failed to deliver what Trump most wanted, which was convincing others in government to overturn the 2020 election. And then his subordinates, White House security staff, thwarted Trump’s plan to march with a mob into the Capitol.

Meadows’ role has become clearer with each January 6 hearing. Earlier hearings traced how his attempted Justice Department takeover failed. The fake Electoral College slates that Meadows had pushed were not accepted by Congress. The calls by Trump to state officials that he had orchestrated to “find votes” did not work. Nor could Meadows convince Vice-President Mike Pence to ignore the official Electoral College results and count pro-Trump forgeries.

And as January 6 approached and the insurrection began, new and riveting details emerged about Meadow’s pivotal role at the eye of this storm, according to testimony on Tuesday by his top White House aide, Cassidy Hutchinson.

Meadows had been repeatedly told that threats of violence were real. Yet he repeatedly ignored calls from the Secret Service, Capitol police, White House lawyers and military chiefs to protect the Capitol, Hutchinson told the committee under oath. And then Meadows, or, at least White House staff under him, failed Trump a final time – although in a surprising way.

After Trump told supporters at a January 6 rally that he would walk with them to the Capitol, Meadows’ staff, which oversaw Trump’s transportation, refused to drive him there. Trump was furious. He grabbed at the limousine’s steering wheel. He assaulted the Secret Service deputy, who was in the car, and had told Trump that it was not safe to go, Hutchinson testified.

“He said, ‘I’m the f-ing president. Take me up to the Capitol now,’” she said, describing what was told to her a short while later by those in the limousine. And Trump blamed Meadows.

“Later in the day, it had been relayed to me via Mark that the president wasn’t happy that Bobby [Engel, the driver] didn’t pull it off for him, and that Mark didn’t work hard enough to get the movement on the books [Trump’s schedule].”

Hutchinson’s testimony was the latest revelations to emerge from hearings that have traced in great detail how Trump and his allies plotted and intended to overturn the election. Her eye-witness account provided an unprecedented view of a raging president.

Hutchinson’s testimony was compared to John Dean, the star witness of the Watergate hearings a half-century ago that led to the resignation of President Richard Nixon for his aides’ efforts to spy on and smear Democrats during the 1972 presidential campaign.

“She IS the John Dean of the hearings,” tweeted the Brooking Institution’s Norman Eisen, who has written legal analyses on prosecuting Trump. “Trump fighting with his security, throwing plates at the wall, but above all the WH knowing that violence was coming on 1/6. The plates & the fighting are not crimes, but they will color the prosecution devastatingly.”

Meadows’ presence has hovered over the coup plot and insurrection. Though he has refused to testify before the January 6 committee, his pivotal role increasingly has come into view.

Under oath, Hutchinson described links between Meadows and communication channels to the armed mob that had assembled. She was backstage at the Trump’s midday January 6 rally and described Trump’s anger that the crowd was not big enough. The Secret Service told him that many people were armed and did not want to go through security and give up their weapons.

Trump, she recounted, said “something to the effect of, ‘I don’t f-ing care that they have weapons. They’re not here to hurt me. Take the mags [metal detectors] away. Let the people in. They can march to the Capitol from here.

As the day progressed and the Capitol was breached, Hutchison described the scene at the White House from her cubicle outside the Oval Office. She repeatedly went into Meadows’ office, where he had isolated himself. When Secret Service officials urged her to get Meadows to urge Trump to tell his supporters to stand down and leave, he sat listless.

“He [Meadows] needs to snap out of it,” she said that she told others who pressed her to get Meadows to act. Later, she heard Meadows repeatedly tell other White House officials that Trump “doesn’t think they [insurrectionists] are doing anything wrong.” Trump said Pence deserved to be hung as a traitor, she said.

Immediately after January 6, Hutchinson said that Trump’s cabinet discussed invoking the 25th Amendment to remove a sitting president but did not do so. She also said that Meadows sought a pardon for his January 6-related actions.

Today, Meadows is championing many of the same election falsehoods that he pushed for Trump as a senior partner at the Conservative Partnership Institute (CPI), a right-wing think tank whose 2021 annual report boasts of “changing the way conservatives fight.”

His colleagues include Cleta Mitchell, a lawyer who pushed for Trump to use every means to overturn the election and leads CPI’s “election integrity network,” and other Republicans who have been attacking elections as illegitimate where their candidates lose.

Hutchinson’s testimony may impede Meadows’ future political role, as it exposes him to possible criminal prosecution. But the election-denying movement that he nurtured has not gone away. CPI said it is targeting elections in national battleground states for 2022’s midterms, including Arizona, Georgia, Florida, Michigan, and Pennsylvania.

Trump did not give Meadows a pardon. But in July 2021, Trump’s “Save America” PAC gave CPI $1 million.

Steven Rosenfeld is the editor and chief correspondent of Voting Booth, a project of the Independent Media Institute. He has reported for National Public Radio, Marketplace, and Christian Science Monitor Radio, as well as a wide range of progressive publications including Salon, AlterNet, The American Prospect, and many others.

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